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Forensic testing faulty for 3 in state

by Spencer Willems | June 8, 2015 at 3:52 a.m. | Updated June 8, 2015 at 3:52 a.m.

Correction: This article characterized microscopic hair analysis used by FBI forensic experts as discredited and faulty. The FBI says it still considers it a valid scientific technique when used in conjunction with DNA analysis.

At least three Arkansas prisoners were convicted, in part, using faulty science and tenuous testimony, and a review is underway to see if additional Arkansans were convicted with the now discredited expert testimony, advocates for the prisoners say.

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Paul Cates, a spokesman with The Innocence Project, said at least three convictions in Arkansas courts -- one of them a federal case -- relied on microscopic hair analysis, a type of forensic analysis that scientists have since debunked.

Officials from the FBI and Department of Justice acknowledge that the testimony was unreliable, and they are working with Cates' group and other advocates to review thousands of cases in which the discredited testing was used, according to an FBI announcement from late April.

The Innocence Project, which is part of a broader Innocence Network, is a New York-based legal group that seeks to free inmates who were wrongly convicted.

Since 2000, lab analysts have relied on DNA, rather than microscopic, testing of evidence.

Cates said it's possible that more cases will be discovered as law enforcement officials and defense teams painstakingly review more than 3,000 cases spread across 41 states.

"It's not an easy task to go back and look back at literally thousands of cases to put this stuff together," Cates said. "It's not like there is a transcript bank on this ... but to the government's credit, they are doing it."

One of the cases reviewed involves Lonnie Strawhacker, who was convicted in early 1990 of rape and first-degree battery in an attack on a Fayetteville woman the year before.

Strawhacker, who had been convicted of rape earlier in his life, was accused of attacking the woman from behind, beating her face and then forcing her to take him to her home, where he raped her.

According to reports from his trial, the victim couldn't say what the rapist looked like because "her eyes were swollen shut after the beating and because it was a dark, cloudy night."

She picked Strawhacker out of a voice police lineup, where five men repeated phrases that were said during her assault.

At trial, analyst Michael Malone testified that pubic hair found in the woman's bed was consistent with hair taken from Strawhacker. Strawhacker was sentenced to life in prison, plus 30 years.

Malone was one of the first hair analysts whose testing and testimony drew criticism from the legal community. Malone's analysis and testimony led to three convictions in Washington, D.C., that were reversed after appeals that cast doubt on Malone's scientific claims and expertise.

Cates said it wasn't bad science, per se, "it was a lack of science."

In October, Strawhacker received a letter from the Department of Justice, notifying him that a recently completed review by the office of inspector general found that Malone was one of 13 FBI hair examiners whose work "may have failed to meet professional standards."

According to court records, the Department of Justice found 18 instances in Malone's testimony in Strawhacker's case that "exceeded the limits of science."

After receiving the Justice Department's letter last fall, Strawhacker -- who lost an appeal before the Arkansas Supreme Court in 2002 -- filed a motion asking the court to allow his case to be reopened in Washington County and to appoint an attorney for him.

On Thursday, the Supreme Court obliged, choosing Jeff Rosenzweig, a Little Rock criminal defense attorney and a member of the Arkansas Association of Criminal Defense Lawyers.

Rosenzweig said he has kept up with questions raised over the FBI's hair analysis as it drew more and more scrutiny over recent years.

"The FBI has repudiated the eyeballing of hair to make comparisons. It's been completely debunked and disproven," Rosenzweig said. "It's obvious it was a crucial bit of evidence [in Strawhacker's trial]."

A spokesman for Arkansas Attorney General Leslie Rutledge said there was plenty of other "sufficient" evidence that led to Strawhacker's conviction.

Questions begin

In 2009, a report from the National Academy of Sciences found that the analysis methods used to help convict defendants like Strawhacker were procedurally and scientifically flawed.

From 2009-12, DNA evidence was used to reverse the convictions of three men in Washington D.C. Those convictions relied, in part, on faulty hair analysis.

In 2012, the FBI and the Department of Justice started a review of cases that were affected by such hair analysis.

Over time, law enforcement officials and advocates learned that faulty hair analysis and testimony that relied on it were more widespread than initially thought.

In late April, the FBI and Department of Justice announced that 26 of their 28 hair analysts had given "erroneous" testimony in cases. That testimony typically favored prosecutors.

So far, Cates said, officials have scoured about 500 of the more than 3,000 convictions that relied -- at least in part -- on the debunked analysis.

Many of the defendants in those cases pleaded guilty rather than go to trial.

But 268 of the cases did go to trial, and analysts testified in those cases. Of those, 257, or 96 percent, included "erroneous" statements from FBI experts, according to a statement from the FBI. Three of those cases involved Arkansas defendants.

Cates noted that there were errors in testimony in 32 of the 34 death penalty cases reviewed. In nine of those cases, the defendants have been executed. In five others, the defendants died while awaiting execution.

In addition to the FBI's review, local chapters of The Innocence Project are reaching out to state and local crime laboratories for information about testimony and evidence given by local expert witnesses.

Tricia Bushnell, the legal director of the Midwest Innocence Project -- which covers Arkansas and four other states -- said her group has yet to contact the Arkansas Crime Laboratory. She said working with labs across five states will take some time.

"We actually don't know the number [of affected cases] in our state courts of what's left," Bushnell said. "These lab examiners were trained and were doing what they were trained to do. They were trying to do the right thing. They were trying to catch the bad guy and bring justice. ... But the science wasn't appropriate."

Kermit Channell, the head of the Arkansas Crime Laboratory, was not in his office Friday. A message left seeking comment from other laboratory officials was not returned.

Rosenzweig said the Strawhacker appeal, like others, could be complicated.

"Let's just say... there are procedural issues," Rosenzweig said. "If there isn't a procedural route [for Strawhacker], there should be."

Calls to the National Association of Criminal Defense Lawyers (NACDL) and the Department of Justice were not returned.

In an email, an FBI public affairs liaison referred questions to the FBI's statement that was released more than a month ago.

"The Department [of Justice] has been working together with the Innocence Project and NACDL to address errors made in statements by FBI examiners regarding microscopic hair analysis in the context of testimony and laboratory reports. Such statements are no longer being made by the FBI, and the FBI is also now employing mitochondrial DNA hair analysis in addition to microscopic analysis," said Amy Hess, executive assistant director of the FBI's Science and Technology Branch. "However, the Department and the FBI are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance."

Cates said it's too early to tell how many convicts will appeal their cases, and he noted that legal barriers vary by state.

But, he said, federal prosecutors won't try to prevent cases involving federal prisoners from being reopened.

"The government has agreed for any of the cases that the Department of Justice worked on, not to use these procedural barriers to block people from getting back into court," he said. "That would not apply to the states. It's worth noting that the Department of Justice has agreed that they're not going to use blocks ... like statute of limitations, to deny people access to court."

When asked how state attorneys will handle any potential appeals, Rutledge's spokesman Judd Deere said Rutledge's office will "thoroughly evaluate each case."

Metro on 06/08/2015

Print Headline: Forensic testing faulty for 3 in state

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