FBI

Huge Scandal at FBI: Dubious Forensic Evidence Used in Convictions of Hundreds, Possibly Thousands of People

Many of them on death row.

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The FBI story has some holes in it.
Warner Bros.

As regular Reason readers know, the Federal Bureau of Investigation has been reviewing thousands of cases where it may have used dubious forensic evidence to get a conviction. Today's Washington Post fills us in on how that's been going:

Nearly every criminal case reviewed by the FBI and the Justice Department as part of a massive investigation started in 2012 of problems at the FBI lab has included flawed forensic testimony from the agency, government officials said.

The findings troubled the bureau, and it stopped the review of convictions last August. Case reviews resumed this month at the order of the Justice Department, the officials said.

Oh.

The issue is the use of hair found at a crime scene to prove a defendant had been present. According to the Post, "FBI policy has stated since at least the 1970s that a hair association cannot be used as positive identification, like fingerprints," yet "agents regularly testified to the near-certainty of matches" in the 1980s and '90s. A spokesman for the Justice Department told that paper that the bureau's claims regularly "exceeded the limits of science."

In many of these cases, of course, there is other evidence of the defendants' guilt. But that just means it's all the more important to have as speedy a review as possible. Instead, the government has dragged its feet. According to the Post, officials have "had enough information to review all hair unit cases" since 1999, but it failed to start the process until recently.

At this point the authorities have made their way through only about 10 percent of the 2,600 convictions under review. It has made more progress on the subset where the convict faces the death penalty, but even then around a third of the 45 cases have not been reexamined.

To read the rest of the Post's report, go here. For more on the problem of death-row errors, go here.

NEXT: A. Barton Hinkle on the Latest Bureaucratic Nonsense from Government Regulators

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  1. And nothing else will happen. They’re going to have used junk science to possibly throw people in jail for decades, maybe on death row, and nothing will happen. Nobody will be punished for the misdeeds. The people released will get a payoff from the taxpayers and that will be it.

    I’m completely broken inside at this point. I have absolutely no hope at all.

    1. I’m completely broken inside at this point. I have absolutely no hope at all.

      I feel for you. I still have this teeny, tiny little bit of hope-iness in me. It’s in my nature.

      But god DAMN it’s getting hard to not just cave and believe everything’s fucked forevermore, cause it’s sure looking like that, more and more.

      1. I agree that we probably won’t see anything like libertarian society in our lifetime. However, when I look at the long term trend, I’m optimistic. I look at it like GDP or the stock market: there are ups and downs, but a general upward trend.

        It’s easy to let Obamacare, the military industrial complex, the drug war, etc, to be discouraging. However, it was only about 250 years ago that we finally got the bright idea that state sponsored religion wasn’t a good idea, that abolishing slavery was a good idea, etc. Outside of backwater places in the globe, those ideas are in the past.

        Hell, 40 years ago, the draft was apparently a good idea in the USA. I’d like to see a politician try that. while it’s not illegal, I assume the concept would be seriously rejected by the people. People recently seem to reject foreign military intervention. Yes, by only a close margin right now, less so in congress, but compared to the war boners of the past, it seems like a refreshing change.

        The police state sucks, but people seem to be getting tired of that crap, as well as the drug war. I do believe that, in my lifetime, we’ll see the drug war either halted or drastically gutted. At which point, it will seem obvious to allow gambling, prostitution, etc. Maybe those will go, too, in my lifetime, at which point, the police will have to get even more creative for their no-knock warrants.

        1. Sure, the welfare state sucks, and is expanding. However, I can at least see a bright side of that. At least politicians have to pretend they’re “serving the people” in some sense to justify their power. In the past, it was almost pure, self-serving power, explicitly FYTW. Having to pretend you’re taking care of everyone with an implicit FYTW is a mild improvement. Now, if they keep going, they might wake up and realize that the government isn’t really taking care of them as well as they could take care of themselves. That probably won’t come in my lifetime.

          In short, a lot of the expansion of state power has to do with just how good things really are. Seriously. For example, when the streets are so safe that the government can waste so much time focusing on pedophiles and throwing people in jail for letting their children walk to a park alone, it implies that they’re having to pull out more and more unlikely hobgoblins to scare everyone with. Massive government research efforts to cure diseases that primarily effect the elderly only makes sense when people are generally healthy and well, and the government has to really stretch the limits to justify its own existence. We consider getting involved in foreign military adventures primarily because we’re so safe at home, that politicians have to come up with that kind of bullshit to justify its own existence.

          At some point, I’m optimistic that people will wake up and realize that’s all BS.

        2. Brian,

          How well does gambling or prostitution (legal or illegal) speak for the moral fiber of our society. Are these two vices uplifting to a better condition for our republic? Are using any drugs (cocaine or heroin) a great step forward in the advancement of culture. Your position seems to rest on an anti-government stance (all government is bad). Do you really think people are all that good, that they will do the right thing every time?

          1. Hey, Hobbes, Locke is looking to slap you around some more.

            1. Fuck you.

          2. Well, Road, you have to ask yourself:

            Which is more moral: tolerating the self-destructive behavior of people, or assaulting those people, taking all their shit, and throwing them in cages?

            As is typical of Big State fans, you draw exactly the wrong conclusion from the premise that people aren’t all that good. We would prefer that people who aren’t all that good not be given much power over their fellows. You seem to think that people who aren’t all that good should be given more power. Its puzzling to me.

            1. Can’t you write a better response? What is it you are attempting to say? What is your premise? Read my comment again! You have reading comprehension, as well as English Composition problems. Put your scrotum sized brain in gear before you open your pie hole again.

              Have a nice day.

          3. Is watching Family Guy advancing the culture? How about a triple meat Whopper?

            Ok you fucking monster, what do you propose to do about the Family Guy/triple meat Whopper eating low life? Put them in a cage as well? Why don’t you do the right thing for humanity every where. BANG! and its all over.

            1. What sort of medications did you take before you posted your comment?

              1. LSD-25

          4. Mandalay…I was in India 20 years ago and was speaking to a bunch of ayurvedic doctors, Brahmans all. They asked how many sex partners I had had. I told them. They were shocked and thought this sort of behavior was bad for society. I asked if any of them had noticed Pushpa, one of the girls who bring medicine to people. They all admitted they had. Pushpawas the 25 year old 4th daughter of a family with no sons. That means she would never get married, which means she would never have sex. She was so hot she was squirming when a man walked by.

            I asked them if Pushpa wanted to have sex with them would they say ‘yes’. They all reluctantly agreed they would, even though they knew it would be bad for her in the society, which it would have. She would have been an outcast and probably ended up living on the street.

            I said I wouldn’t have sex with her for the very reason I just wrote.

            I then said I wouldn’t because I’ve slept with lots of women and I don’t have any desire to sleep with someone and hurt her. But, I pointed out, they would.

            Who then, I asked, was more moral, me, having slept with lots of women, but who has somewhat grown out of it, or them, who have slept with 0 or 1 woman, but only because they have not had an opportunity?

            The point is, we live and do things, and some things don’t work, and we learn. We grow, we become better. And, that comes from freedom to act, not from restrictions on freedom to act.

            1. Pulseguy,

              Your response is certainly interesting. However, my original question to Brian was basically: How does gambling and prostitution benefit and better society? That was all I asked, and as you can see, all I got in response was a bunch of “literary farts” which did not answer my question at all. Thanks anyway. At least your response to me was civil, although somewhat patronizing. Have a nice evening.

              1. Legal gambling and prostitution benefit society most directly through the removal of the crime elements, with gambling if there is legal recourse to get your money back from an individual you do not require “Jimmy” to go bust some kneecaps
                with prostitution they are no longer walking around the streets trying to avoid police interactions and only capable of using a pimp or a gun to prevent rape or robbery, instead they may even choose to open up a shop, and offer STD test proof to beat their competition out in a legal safe and free market.
                Indirect benefits are reduced tax expenditures, and job/wealth creation
                so yes i think the benefits outweigh the costs

          5. On The Road To Mandalay:

            Imagine if gambling, prostitution, and drug use was legal.

            How much of your personal resources would you be willing to voluntarily give in order to reduce gambling, prostitution, and drug use?

            Or, considering the almost absolute failure of the drug war, how much of your own resources are you voluntarily contributing extra to try and make it a success, if it’s really that important to you?

            Funny how these are always great ideas to accomplish with other people’s money.

            No, I don’t think people are completely good, and do the right thing every time. However, I can think of far better uses for scarce resources than trying to punish people for using drugs, having sex, and gambling, especially given its track record of failure.

          6. Mandalay, aside from the dismal results the law has had attempting to prohibit illegal gambling, prostitution and drugs, some of us don’t want other people, especially the politicians/government, deciding on the conditions with which we can engage in sexual activities with others or deciding what substances we can put into our bodies. Using the government/law to force your idea of morality on others is, in my opinion, immoral.

          7. Road,
            What’s the point of your question? It seems non-sequitur to Brian’s comments.

            I think the entire premise of your comment is flawed. “our republic” is a figment of your imagination. It works pretty well, but it’s just an imaginary construct, and that imaginary construct should not take precedence over personal liberty – for both philosophical and utilitarian reasons.

            Given my preceding statement, gambling, prostitution, drug use, etc are probably not uplifting to that construct. However, I would argue that the efforts put into fighting against those things are even more down-pushing (what’s the opposite of uplifting?) than those activities themselves.

          8. I think people are generally good, and that those who aren’t face the consequences of their actions in this life or the next.
            the exemption from the general good i see in others is people who think its their personal business to be involved in the private non-violent affairs of others now if we took away the ability of these people to levy force to coerce a behavior (government) we would be left with having to resolve our problems ourselves (the horror i know)
            and no i dont think people will go all purge style, murder isn’t really something people like to do laws or no
            without government the illicit activities that are now legal no longer have a scary black market of unknowns and violence but rather a free market of suppliers and consumers contributing to the overall socio-economic health
            Libertarians come in many flavors mine just happens to be Anarcho-capitalism

    2. If the FBI follows the path blazed by the labs in Houston when similar, or worse, shennagins were exposed, they will be lucky IF they even get released, much less compensated for the theft of their life.

      It went on for years here and Houston and Somehow wound up swept under the rug.

      And pretty much nothing else happened even though it was alleged that false results were reported purposely to aid in convictions.

      1. I thought there was an actual strong review process in Houston, with the DA on board? People being released, receiving restitution, etc? I read about it a little while ago.

    3. Andrew, it is quite possible that procedures will be changed as a result of this revelation. Such change will be slow, incremental and resisted at every turn. But it is possible.

      But I do share your sadness and cynicism about the release of the wrongly-convicted (look at the slow pace of the sentencing guidelines releases for an example). And you are absolutely and maddeningly correct that nobody will go to jail, lose a job, or suffer any consequences over this. As we’ve seen, this will be framed as a problem with procedure, and a need for more training.

      1. I can relate to the despair. For me, the one point of light here is this: someone(s) in the FBI has enough integrity to look into this, even knowing it very well could possibly reverse many convictions.

        It’s not much, but it’s something.

        1. Or “someone in DoJ”…

    4. Good. If you weren’t broken, it would mean you’re a fool. Rebuild and reload.

    5. Maybe it’s tine to start punishing the offending parties ourselves. And not depend on a corrupt government to do it.

  2. Now, this really IS shocking. A federal government agency stretching the truth and “sciency-ness” of alleged “evidence” in order to secure convictions.

    Next you’re going to tell me that the FBI keeps files on people at the request of political foes and the IRS targets certain groups for political retribution! No wai! I kan haz no cheezburg lolwuT!

  3. Sounds like a bit of a turf fight between DoJ and FBI. If I’m reading this correctly, DoJ had to overrule the FBI to get the investigations to continue.

    1. Given that the FBI is part of the DOJ, it just shows that Eric Holder can’t run a cabinet department properly.

      1. Eh, it’s not the case in any large organization that the guy at the top can just get an order and have it followed if there’s not buy-in.

        Embarrassing the FBI and jeopardizing their “successes” is exactly the sort of thing that I’d expect them to resist.

        (Conversely, apparently the IRS had to arrange to transfer and get their data recovery guys out of the way in order for the politicos at the top to destroy some hard drives.)

  4. Yeah. Like they’re going to admit to being wrong or making a mistake. Fat chance.

  5. Well, what do you expect from the same guys that say, “Dude, let me help you build a bomb. Don’t worry, I’ve got everything covered.”

  6. Previously I believed we lived in out of control regulatory state. Now I know we live in an absolute police state. I will plan accordingly.

  7. The prison walls get higher…

  8. Oh my gosh, the government ruined the lives of innocent people and they don’t care enough to undo their injustice? But yeah, monopolies of taxation are totally best vehicle for protecting people’s rights.

  9. Balko called this years ago.

  10. A spokesman for the Justice Department told that paper that the bureau’s claims regularly “exceeded the limits of science.”

    Nonsense. Over 97% of capilloforensic scientists agree that hair can conclusively identify criminal suspects. Consensus!

    1. Not that I know much about the science of hair identification itself… But what happens when hair is carried to a location either purposely or inadvertently?

      Sure it may be hair that can identify someone. But how did it get there?

      I have a cat that sheds like crazy. And I have always made the joke that he sheds so much that he probably has some fur in Japan by now.

      Just sayin’!

    2. Cook is an idiot.

  11. So the government since 1999 has been jailing people using lies. This is news worthy? When I hear someone at the FBI is being fired or charged then this will rise above the level of dog bites man.

    1. “So the government since time immemorial has been jailing people using lies.”
      FTFY.

  12. Is this the place to pick up the thread on the particulars of the best methods of capital punishment, proper methods of observation of such etc?

    I’d much rather have scum – who the system might have dead to rights – rot in a cell than give the power of life and death to the State. I’ve read plenty of stories about people who I wanted to fry, but the rational part of me kicks in and I can’t help but think that once the State can give the thumbs down with ease, and see how corrupt the “justice” system can be, I can’t get the two to harmonize together. You can give an innocent person screwed over by the FBI or over-zealous DA’s their freedom back, but you can’t give them their life back. In a perfect world, the death penalty would be for people who clearly deserved it. But that clarity can always be wanting when it’s a State Program run by self-interested bureaucrats.

    Just as I’d rather a hundred guilty people go free than live in tyranny, I’d rather ten scumbags rot in a cell than one innocent person gets offed. So it’s more about State incompetency than a sense of leniency as a stand against capital punishment.

    1. The state should not have the power to kill its citizens. The state is always corrupt. Democide is ready to raise its head at a moments notice.

      1. The state kills the innocent with a thousand paper cuts. I’d like to see a study on how stress related illness and IRS compliance result in shortened life spans.

        1. Agreed. Even better, having a kid today is a total pain in the ass, and this is the result of all the do gooders making up laws “for the children”, to wit, from our statist ‘friends’:

          leave your kid at the park – go to jail
          have a beer with your teenage son on your back porch – go to jail
          drive with your kid in the back w/o a seat belt – go to jail
          smoke in the car, with kid in the back – go to jail
          leave the 11 year old in the car so you can get the dry cleaning – go to jail

          Like raising them was not enough stress to begin with.

          1. That’s why its always important to teach your kids how to lie properly, to avoid cops at all costs, and (my personal favorite) Snitches get stitches.

    2. Some people on these Reason comment boards have advocated “no doubt” standards before somebody can get the death penalty.

      I can’t even trust those standards. Witnesses can be made to lie (or even honestly misremember important details), records can be altered, etc. By the time the mistake/malfeasance is discovered, the defendant may already be dead.

      The safest way to prevent unjust executions is to put a stop to the death penalty, period. Yes, people who truly “deserve” to die will get life instead. But if this saves 1 person a century from a wrongful execution, it’s worth it.

      1. Here’s a standard: The officer in charge and the prosecutor have to sign a paper saying that if the guy is ever found innocent, he or his family are allowed to murder them.

        1. what part of “thou shalt not kill” was confusing?
          so if we wrongfully kill someone we kill 2 people?
          IMO there’s no reason to kill someone if they are not an immediate threat to the life and liberty of another, no matter what they have done in their past. if you take a life you had better be saving another otherwise its state sponsored murder

          1. “what part of “thou shalt not kill” was confusing?”
            The part where I should listen to what a 5000 year-old contradictory mishmash of bullshit says.

            “so if we wrongfully kill someone we kill 2 people?”
            If it’s OK to kill someone because they wrongfully killed someone as a private citizen, then it’s OK to kill someone who does it as a “public servant”.

  13. This is absolutely crazy. Yes, while other evidence may have been presented at trial, an FBI “special” agent talking in absolutes (“why yes, the FBI’s forensics lab determined it was the defendant’s hair at the crime scene; here’s the report actually”) carries a heck of a lot of weight with juries.

    All of these convicts should automatically get new trials; the sooner the better. These people have been stewing in prison for up to 30 years. This will, of course, not happen. Reviewing judges will simply say that the conviction stands because of “other” evidence.

  14. Also, what about those who were executed or died in prison due to convictions based in part on this improper testimony? Jesus… THIS should be a national scandal/tragedy. The FBI directors and agents in charge at the time should have their names dragged through mud, careers ruined, etc., for sending the innocent to prison.

  15. 100s, even 1000s = isolated incident. Who are we kidding?

  16. If you really want to get depressed about wrongful convictions, check out the Innocence Project website. There’s a national organization as well as lots of State organizations. They use DNA evidence to overturn wrongful convictions. Their movie is a real tear-jerker.

    I took a forensic evidence law class and our State’s Innocence Project founders spoke to our class about their cases and how hard the prosecutors fight them, even when they provide DNA evidence to exonerate people.

    1. There was a famous Canadian case in which the detectives railroaded this guy. He went to jail for killing a woman with a knife, after having raped her. It turns out a convicted rapist, who raped people at knife point was renting a basement suite beside her home. It also turned out the guy who had been convicted was innocent. After about 20 years he was released when DNA evidence proved he wasn’t the rapist-killer.

      The detective, by then retired, was interviewed. He snorted at the reporter and said it ‘was a good bust’. He knew darn well the guy he got was the perp and nothing was going to talk him out of it. Nothing as inconsequential as simple 100% direct proof it wasn’t his guy that did it anyway.

      These guys decide who did something and make sure the evidence supports their conviction.

  17. FBI agents have to be charged and sent to jail. It will continue until policemen get charged and convicted and imprisoned for lying under oath.

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  19. I seem to recall reading variations of this story going back to the original O.J. Simpson murder trial. I guess they needed everyone to retire before they could do something.

  20. Ok, from now on labs have to be actually tested to see if they’re reliable within a year of beginning operating. That is they will be sent samples that are both known to match and known not to match. Their false negative and false positive rates will be assessed routinely, by independent testers.

    That would be what someone would say if the police were actually about justice.

    Just like prison informants would be subject to sting operations to see if they made shit up.

    So bets on when either will happen?

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