This story is one that would have generated an argument so boring and tedious that no one would be able to stand following it through from beginning to end. At the beginning, there was science. Maybe not science to real, honest-to-god type scientists, who would use charts and graphs, statistics, maybe even a Venn diagram for the hard-o-thinking, to make their point.
This was not science, but we, lawyers, and the lawyers who quit to become judges, aren’t scientists either. So when some guy from the FBI Lab, which everybody knows is the best there is because everybody keeps saying it’s the best there is, says this is scientifically valid, who are we to question it?
Gamso lays it out.
They call themselves criminalists or forensic scientists or something with a fancy name. They come into court explaining that they’ve done these tests hundreds of times. There are, they say, a whole bunch of points of comparison. And when they find a match, they can point to those points.
You probably can’t see those things certainly not without the forensic scientist pointing them out. That’s because you haven’t been properly trained. Had you been, just like those forensic scientists, you could see them. And like those forensic scientists, you’d know. Because, as they like to say on the witness stand, they’re never wrong.
Except, of course, they are.
It’s about hair analysis this time. There is an analysis for pretty much everything that’s left behind at a crime scene, where some guy paid by the government puts it under a microscope (they’re like magic, you know, and make things look BIGGER) and, boom, he can tell stuff about it that you and I can’t see.
Since we don’t have microscopes, and we wouldn’t know what to look for as our eyes are blurry from watching Real Housewives of Somewhere now that they took Honey Boo Boo off the air, we can’t really say for ourselves, but this is the FBI. If you can’t trust the FBI, the best law enforcement outfit in the world, which everybody knows is the best there is because everybody keeps saying it’s the best there is, who can you trust?
Nearly 20 years ago, Fred Whitehurst blew the whistle on FBI’s flawed, and sometimes dishonest, forensic work. The Inspector General issued a scathing report. The Department of Justice promised to review everything, opening case after case. And then to right the wrongs.
We’re still waiting. Protip: When you get caught being all full of shit, say you’re sorry, assure everyone you will right the wrongs, and they will all mumble, “well, okay then,” and walk away and forget all about you. You don’t actually have to do anything because people have the memories of gnats and, well, just don’t care all that much unless it affects them.
Tonight, Al Jazeera America* (which is one of the few media outlets to take the time to look deeply into the workings of the criminal justice system) will be presenting “Under the Microscope: The FBI Hair Cases.” They were kind enough to let me watch an advance showing, and it’s excellent.
It relates the stories of innocent people convicted, at least in large part, on the testimony of forensic hair analysis.
[I]t tells of Joseph Sledge who spent 37 years in prison for a pair of rape murders he didn’t commit. It was an horrific crime scene. Blood everywhere. Everywhere except on Joe Sledge. There were palmprints in the blood. They weren’t Joe’s. But there were also a handful of hairs. Those, the FBI’s crack hair analysts said, those were just like Joe’s. There are 16 points of comparison. They matched up at all 16.
Sound familiar? Like fingerprints. Here 16 points matched. What are the chances they could be wrong? Well, 100%, as it turns out.
It tells the story of Kirk Odom, arrested at 18 for a rape he didn’t commit. But the hair, the hair. And Santae Tribble. He was 17 when the cops got him for murder. There were 13 hairs. It was a murder case. The FBI had two of their forensic scientists look at them. Match his hair, they both said.
The stories of the wrongfully convicted jerk some tears, as well they should, but for the lawyerly viewer, they serve merely to show that the science, which everyone believed with certainty to be real and accurate, was neither. But the examples were the ones who were fortunate to learn of the error, to walk free.
You know what happened next. DNA testing on the hairs. On the hairs that convicted Joe and Kirk and Stantae. On the hairs that weren’t theirs. In Santae’s case, one of the hairs that sent him down for murder, one of the 13 hairs hairs that the crack guys from the FBI told the jury was just like his, so, you know, . . . . That hair came from a dog.
A fucking dog. Who he says probably committed the crime.
Forensic hair analysis was used thousands of times by the FBI experts, whose somber faces and serious voices persuaded jurors that these were scientists just doing their job, taking killers and rapists off the streets, using proof beyond dispute. It worked spectacularly well, and, but for the fact that it was all nonsense, let the rest of us sleep well knowing we were safe because of the FBI’s hard science-ish work.
But it wasn’t just a failure. It was an epic failure.
The bureau’s released some preliminary reports on its latest round of reviews. 26 out of 28 of the forensic scientists made false claims at trials. David Colapinto, General Counsel of the National Whistleblowers Association explains,
We can now say, based on a statistically sizable sample of cases they have reviewed, [the FBI] were wrong 95% of the time.
And yet, the rest of the defendants convicted on hair analysis remain in prison, unaware of the fact that they were convicted on expert testimony that was wrong 95% of the time.
As we learned from Fred Whitehurst, the use of junk science wasn’t limited to hair analysis, but was pervasive at the FBI laboratory. When you watch the show, remember that this is but one bit of bad science. If you view it as an expose on hair analysis only, you will miss the larger point. Substitute bite-mark analysis, duct tape analysis, finger-print analysis, hand-writing analysis, voice analysis, drugs, then do the math.
This isn’t science. This is manufactured industry created for the sole purpose of using science-sounding words to remove oversight by a jury and replace it with the conclusion of an FBI analyst, so as to guarantee conviction. And it works spectacularly well, even though it’s largely bullshit.