Imagine you are serving on a jury in a serious criminal case. The issue is identity. The crime is horrible, but the defendant strongly denies committing the crime. Wouldn’t you feel better if the state could produce forensic evidence linking this defendant to the crime scene — or perhaps a strand of the victim’s hair in the defendant’s car? Wouldn’t it make you feel even better about making the decision that the defendant was guilty if the expert was a highly trained and confident examiner from the Federal Bureau of Investigation who could testify with a high degree of confidence that the hair or fiber evidence linked the defendant to the crime?

Well, such highly trained and confident examiners testified many times in Tennessee criminal cases. The only problem is that their testimony and methods were unreliable. The United States Department of Justice now admits that F.B.I. examiners offered flawed and unreliable hair analysis testimony in cases all over the United States. These errors have been highly publicized, but I would like to take a look at what has occurred in Tennessee and what remedies might be available here.

The ‘Science’

Examiners claimed that they had examined hair or other fibers and that those examinations showed that the hairs were from the same person or location.

State v. Melson, a murder case examined by the Tennessee Supreme Court in 1982, provides a good example of how Tennessee prosecutors and appellate courts relied on this “science”:

An FBI agent testified about hair characteristics and matching. He stated that, when the twenty or so characteristics of a hair match a known sample, there is only one chance out of 4,500 or 5,000 that the unknown hair came from a different individual …. The hair on Mrs. Lawrence’s blouse exactly matched the samples from Melson’s head. The hair on the hammer exactly matched hair from Mrs. Lawrence’s head. Making it even less likely that the hair on the hammer had come from anyone else was the fact that such hair had no root on it; it had been broken or torn off in the middle of the shaft, showing that it had come out as the result of force being applied.[1]

Other uses of this “science” involved the opinion that a hair found in the defendant’s car appeared to belong to the victim[2] and comparison of carpet fibers to fibers on someone’s clothes.[3] My quick survey showed that there are dozens of Tennessee appellate cases that mention microscopic hair analysis, and those were only the cases that went to trial and the appellate opinion mentioned the testimony.

Prior Efforts to Exclude

Admittedly, the science sounded good; the courts in Tennessee were very willing to admit this ultimately flawed testimony. In Brady v. State, an early objection to microscopic hair analysis resulted in the following analysis by the Court of Criminal Appeals:

The appellants contend that the testimony of the expert witness on hair identification was speculative and the trial court erred in allowing it into evidence. We disagree. With proper instructions by the court, the weight to be given his testimony was, we think, a relevant factor for the jury. Therefore, this assignment is overruled.[4]

That’s it.

Courts in Tennessee continued to admit and rely on microscopic hair analysis for many years. In State v. Melson, the Supreme Court relied on Brady and expressed “no hesitation in holding that the testimony of the FBI agents clearly met all tests for admissibility.”[5] Even when the hair and fiber analysis reports were not provided to defense counsel until the second day of trial and defense counsel had no ability to consult with an expert, no error was found in admitting hair and fiber evidence.[6]

The Department of Justice Admissions

The problem with this wonderful expert testimony was that it was not reliable. Once mitochondrial DNA testing became common, several cases that had been based on microscopic hair comparison began to unravel. Anecdotal evidence began to surface that the F.B.I. experts had simply been wrong in their conclusions. Simply put, the F.B.I. experts said hairs matched; DNA said they didn’t.

By 2009, the National Academy of Sciences debunked microscopic hair analysis and its use in court.[7] While the NAS report carefully analyzed studies of hair analysis, one fact that jumps out of the report is that the F.B.I. had taken 80 instances in which experts had found a match and then using mitochondrial DNA testing found that 12.5 percent of those came from different sources.[8] The NAS found that there was no scientifically based standard for hair comparison and no uniform standard had been applied.

In other words, this was junk science. Peter Neufeld, co-director of the Innocence Project, bluntly concluded that, “FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions’ case.”[9]

Since the NAS report, cooperative efforts have identified the cases in which this flawed analysis was used. The National Association of Criminal Defense Lawyers recently stated:

The government identified nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis. As of March 2015, the FBI had reviewed approximately 500 cases. The majority of these cases were trials and the transcript of examiner testimony was reviewed. Some of these cases ended in guilty pleas, limiting the review to the original lab report. In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 — 96 percent of the cases. Defendants in at least 35 of these cases received the death penalty and errors were identified in 33 (94 percent) of those cases. Nine of these defendants have already been executed and five died of other causes while on death row.[10]

Likewise, The Innocence Project has published a review of (currently) 74 cases in which they conclude that improper microscopic hair comparison evidence led to wrongful conviction where subsequent DNA evidence has undermined the convictions.[11]

Efforts to Right This Wrong

The Department of Justice and the Federal Bureau of Investigation announced that they would undertake a systematic review of cases in which F.B.I. analysts made representations based on microscopic hair analysis. Soon an agreement was reached between the DOJ, the National Association of Criminal Defense Lawyers and the Innocence Project to analyze and report on those cases affected by this error.[12] The Department of Justice has then sought to contact the affected defendants and their former counsel. While not conceding that the issue justifies relief in particular cases, the Department of Justice will waive procedural roadblocks for those who need to use federal court to challenge their tainted convictions. The efforts to identify and notify those affected are fascinating and are thoroughly detailed in several NACDL publications.[13]

Many of these cases are old, and the affected defendants will face an uphill battle to get relief in state courts.

Where the Efforts Might Fall Short in Tennessee

One problem is that just looking at the cases in which an F.B.I. examiner gave opinion testimony based on microscopic fiber analysis will not find all the cases in which such evidence was admitted. This type of opinion appears to have most often been given by the F.B.I. but was not limited to F.B.I. testimony. My decidedly unscientific research quickly disclosed a number of Tennessee cases in which others gave such opinions. At least two appellate opinions mention testimony by an examiner from Arizona.[14] It appears that Tennessee examiners were trained in microscopic hair and fiber analysis as well.[15] Like their F.B.I. counterparts, Tennessee agents provided detailed and damning conclusions:

… a criminalist employed by the Tennessee Bureau of Identification, and who has had specialized training in hair and fiber examinations, testified as to her findings from her examination of certain fibers. She found that the physical and microscopic characteristics of certain red fibers removed from the appellant’s clothing, his bed linens, and from the red cloth on his couch and chair, are consistent with those of a red fiber vacuumed from the victim’s bedroom. All fibers tested from other people sources had inconsistent characteristics. She further testified that in her opinion the subject red fiber, filed as an exhibit, requires physical contact for its transfer, rather than transfer as an air borne fiber.[16]

In other cases, the state seems to have hired experts that were not affiliated with the F.B.I. If state agents, agents from other states or private experts were used, the cases affected will not be on the Department of Justice list. It will be up to the defendants, their prior counsel and perhaps the district attorneys who used such evidence to bring these cases to the attention of the courts for review.

Suggested Remedy for Tennessee Cases

Identifying a case as having hair or fiber analysis is only the beginning. Then you have to figure out what to do about it.[17]

The Innocence and Wrongful Convictions Clinic at the University of Tennessee College of Law is at the forefront of attacking this problem in Tennessee. The Clinic is currently reviewing cases to determine whether the errors were material in the cases in question and what remedy to seek.[18] Most cases, however, will have to be reviewed either by trial counsel or lawyers willing to help on a pro-bono basis.

Post-conviction procedure is incredibly difficult, but there is a remedy under Tennessee law that may help. In 2001, the legislature passed the Post–Conviction DNA Analysis Act.[19] A defendant can first seek to have the hairs tested by mitochondrial DNA to determine whether the testimony was in fact wrong. The act provides for mandatory testing if the statutory criteria are met, including “(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis; (2) The evidence is still in existence and in such a condition that DNA analysis may be conducted; (3) The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and (4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.”[20]

If the Post-Conviction DNA petition is granted and the evidence is favorable, the petitioner will still need to find a way to challenge the conviction. Tennessee post-conviction procedure provides a way to re-open a post-conviction proceeding based on “new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted.”[21] Others affected may need to explore a writ of error coram nobis, and will particularly have to satisfy the rules regarding tolling the one-year statute of limitations.[22]

We owe it to our system of justice to maintain its legitimacy by doing everything possible to identify convictions based on junk science and to attempt to mitigate the damage.

Notes

1. State v. Melson, 638 S.W.2d 342, 349 (Tenn. 1982).
2. Alley v. State, W200401204CCAR3PD, 2004 WL 1196095, at *6 (Tenn. Crim. App. May 26, 2004).
3. Rogers v. State, M2010-01987-CCA-R3PD, 2012 WL 3776675, at *48 (Tenn. Crim. App. Aug. 30, 2012).
4. Brady v. State, 584 S.W.2d 245, 250 (Tenn. Crim. App. 1979)
5. Melson, 638 S.W.2d at 366.
6. State v. Goodman, 643 S.W.2d 375, 379 (Tenn. Crim. App. 1982).
7. National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (2009), available at https://www.ncjrs.gov/pdffiles1/nij/grant/228091.pdf.
8. Id. at 160.
9. National Association of Criminal Defense Lawyers, News Release, April 20, 2015, available at https://www.nacdl.org/NewsReleases.aspx?id=37023.
10. Id.
11. The Innocence Project, “Not a Strand of Evidence: DNA Exonerations Involving Unvalidated or Improper Microscopic Hair Comparison Evidence,” www.innocenceproject.org/files/not-a-strand-of-evidence.
12. F.B.I. Press Release, April 20, 2015, FBI “Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review: 26 of 28 FBI Analysts Provided Testimony or Reports with Errors,” available at http://www.fbi.gov/news/pressrel/press-releases/fbi-testimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review.
13. Norman Reimer, “The Hair Microscopy Review Project: An Historic Breakthrough for Law Enforcement and a Daunting Challenge for the Defense Bar,” The Champion, July 2013, p. 16.
14. State v. Sparkman, M2010-01521-CCA-R3CD, 2012 WL 1799024, at *6 (Tenn. Crim. App. May 18, 2012)(“Melinda Raines, a criminalist from the Arizona Department of Public Safety Trace Analysis Unit, testified as an expert in hair examination and analysis”); State v. Bell, W2012-02017-CCA-R3DD, 2014 WL 2547721, at *29 (Tenn. Crim. App. May 30, 2014)(Interestingly the Arizona examiner in Bell testified that hair analysis is not a form of identification because of the number of characteristics of each person’s hair).
15. “TBI Agent Linda Littlejohn testified at trial that the fibers she found on the victim’s clothing did not match the fibers from the carpet and seat standards taken from the Petitioner’s cars.” Rogers v. State, M2010-01987-CCA-R3PD, 2012 WL 3776675, at *48 (Tenn. Crim. App. Aug. 30, 2012); State v. Buck, 670 S.W.2d 600, 603 (Tenn. 1984)(“The senior microanalysist at the Tennessee Crime Laboratory made a microscopic comparison of separate hair samples taken from the left rear fender flair and the left rear shock mount with the known hair of the victim and found they were similar in racial origin, coloring, and microscopic structure. Examination of a hair sample taken from the right front seat of the jeep was compared with a known hair sample of the victim, with the same result of compatibility.”)
16. State v. Brobeck, C.C.A. 254, 1986 WL 13428, at *4 (Tenn. Crim. App. Nov. 26, 1986) aff’d in part, rev’d in part, 751 S.W.2d 828 (Tenn. 1988).
17. The Innocence Project and Winston & Strawn LLP have published a Memorandum of Potential Post-Conviction Arguments and Authority Based on Discredited Hair Microscopy Analysis, available at http://www.americanbar.org/content/dam/aba/events/criminal_justice/Forensics_Update_Post_Conviction_Discredited_Science.authcheckdam.pdf.
18. Satterfield, Jamie, “UT law students work with FBI, DOJ on ‘Innocence’ project,” Knoxville News Sentinel, May 27, 2015, p. 1. Disclosure: My partner, Stephen Ross Johnson is the founding adjunct professor for the Innocence Clinic.
19. Tenn. Code Ann. §§ 40–30–301 to –313.
20. Tenn. Code Ann. § 40–30–304. See also Powers v. State, 343 S.W.3d 36, 48 (Tenn. 2011), in which the Tennessee Supreme Court sets out the background and application of the Act in depth.
21. Tenn. Code Ann. § 40-30-117.
22. Tenn. Code Ann. § 40–26–105(b) (“Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.”)

WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.