Where Is the Path Forward for Forensics? Part II

Donald Eugene Gates, convicted of murder in Washington D.C., would spend 28 years in prison before he was exonerated in 2009 through the tireless work of his lawyers at the Public Defender Service for the District of Columbia - but it was not until this Spring that the flawed FBI forensics supposedly "matching" his hair to the crime scene would finally come under broader scrutiny.

The case brought still worse problems to light. This Spring, the Washington Post released the results of a remarkable investigation, uncovering a buried 1990's Department of Justice inquiry into FBI hair cases, and finding hundreds more cases with flawed forensics. Some of the cases were death row cases -- for example, a Texas man was executed in the late 1990s, but if it had not been for the FBI's flawed hair analysis, he would not have been even eligible for the death penalty.

This Spring, the Public Defender Service also cleared two more people who had flawed FBI hair testimony, using DNA tests. One, Kirk Odom had served 22 years in prison for a crime he did not commit and has been exonerated. The second man, Santae Tribble, spent 28 years in prison, and is still waiting for a ruling on an uncontested motion for exoneration.

After the Post reporting and two more exonerations, the FBI agreed to an unprecedented national case review of thousands of old FBI hair comparison cases, spearheaded by the Department of Justice. The audit has begun. Why did it take so long? Why didn't police or prosecutors or lab analysts ensure that this seriously flawed forensics be properly investigated? These were elite FBI lab analysts and elite federal prosecutors. Yet none of this should be a surprise.

There are multiple crime lab scandals all across the country at any given time, with entire labs closed down and ongoing audits of old cases. The latest news comes out of Massachusetts, where the Governor just shut down a crime lab after revelations after a chemist was violating protocols and possible engaging in "malfeasance," potentially affecting 34,000 criminal cases. Nassau County, New York, continues to grapple with the shutdown of its crime lab last year, and many thousands of old cases are being examined. Hundreds or even thousands of cases in San Francisco have been called into question due to misconduct in its lab. Washington. D.C. has also had problems with accurate use of its breathalyzer tests.

Those are cases that involve fairly routine drug testing. How about cases where forensic evidence was hidden from the defense? How about forensic techniques that have not been validated and like hair comparisons, that depend on the judgment-calls of the analyst? The FBI in 2005 stopped using bullet-lead analysis, which purported to trace bullets back to the particular manufacturing batch that they came from, finding it scientifically unsupported -- and sparking an audit to look into old cases. The FBI has revised its procedures for examining fingerprints, in response to the high-profile mistake in the Madrid bombings investigation, where a Portland Oregon lawyer had his prints falsely linked to that terrorist incident. Most forensic analysts, however, have not changed their practices -- and judges are reluctant to limit adventurous uses of forensics in their courtrooms.

Scientists have called for a path forward -- what is the path? Congress asked the National Academy of Sciences to lead a comprehensive scientific review of the state of forensics. Their 2009 report, ''Strengthening Forensic Science in the United States: A Path Forward," called for the creation of a National Institute of Forensic Science to set standards and fund research. That report concluded that the entire system of forensics needs to be overhauled. The underlying science used for many types of forensics needs more support. On the subject of hair comparisons like that used in Gates' case, the report said that there are no "scientifically accepted statistics" on microscopic hair characteristics and no scientific support for using hair to individualize. But the report was not limited to hair or fiber comparisons, which are not used so often today. The report said that for a host of forensics ranging from bite mark to tool mark to fingerprint comparisons -- in fact all forensic used to identify individuals aside from nuclear DNA testing -- basic scientific research is needed to find out how reliable the techniques really are.

Who is flying the plane? Who steps in if there is a scandal at a crime lab and bad work may have tainted old cases? On the research front, we have a National Institute of Health to oversee research for medicine -- why not an institute for forensics? We are willing to spend vast sums on forensics. Every year we continue to expand DNA databanks, for example. Yet very few criminal cases have testable DNA. Most criminal cases must rely on traditional forensics using the same sort of subjective comparison under a microscope that led to Gates' wrongful conviction. Scientific standards and oversight are urgently needed. That is what new federal legislation aims to do -- and that will be the subject of my third piece about forensics on the Hill. We could spend a fraction of what we spend on our massive system of DNA databanks to put the bulk of our forensics on firmer scientific ground.

So far, the scientific recommendations for a path forward for forensics have gone ignored in the halls of Congress. This Summer, Odom and Tribble, the two men who had just been cleared by the Public Defender Service, both stood before the U.S. Senate as Peter Neufeld of the Innocence Project testified in hearings to consider forensics reform legislation. They knew all too well that forensics errors are not isolated. When you start to look backwards at just one case, like Donald Eugene Gates' case, you find out that unreliable methods and poor standards were in place, you find even more wrongful convictions, and then you realize there is a real system problem with forensics. This fall, just maybe, Congress will take the path forward.