Appeals Court Overturns 47-Year-Old Murder Conviction Predicated On Faulty FBI Hair Analysis Evidence

from the DOJ's-forty-year-credibility-gap dept

For years, FBI forensic experts have been overstating their certainty about… well, everything. Every piece of forensic evidence — the stuff eventually proven to be junk science bolstered by junk stats — was given the official “Thumbs Up of Absolute Certainty” during testimony.

Eventually (very eventually), it was exposed for the courtroom snake oil it actually was. The FBI, duly chastened, promised to keep doing the same damn thing in perpetuity no matter what actual scientists using actual scientific methods had to say.

For decades, this was standard operating procedure. A study by The Innocence Project found FBI forensic experts had been overstating their findings in court, resulting in a large number of potentially bogus convictions. The DOJ also admitted this error, but chose only to inform prosecutors of its findings, leaving it up to them to erase their own wins from the board.

One of these dubious “hair match” cases has finally made its way to the appellate level. John Ausby, convicted of rape and murder in 1972, is challenging his conviction based on the prosecution’s reliance on FBI experts’ overstatements. Thanks to the DOJ’s admission this expert testimony was likely flawed, Ausby can actually pursue this so long after the fact.

Unfortunately, the lower court claimed the hair match testimony wasn’t instrumental to the guilty verdict. It maintained the verdict would have been reached without the FBI forensic expert’s assertions of certainty and the prosecution’s reliance on this key — but ultimately bogus — piece of evidence.

The DC Circuit Appeals Court disagrees [PDF]. As it points out, the situation isn’t as simple as the lower court makes it appear. There was additional evidence used to convict Ausby, but the record shows the prosecution relied on the expert’s statement that the hairs from the murder scene were an “exact match” — something it reiterated during closing arguments.

Given the combination of evidence used to convict Ausby, the court finds this overstatement of certainty was instrumental in his conviction.

Agent Neill’s testimony was neither the sole piece of evidence on which the prosecution hung its case nor redundant or irrelevant. We ultimately conclude, however, that Agent Neill’s testimony falls on the material side of the spectrum. Agent Neill’s testimony was the primary evidence that directly contradicted Ausby’s defense theory—that Ausby had been in Noel’s apartment during her two-week absence but not on the day of her rape and murder.

As the court notes, other evidence somewhat supported Ausby’s alibi, but it was seemingly shut down by the prosecution’s insistence that the hair recovered from the scene could only have come from Ausby.

That Agent Neill’s testimony played a key role in debunking Ausby’s defense is borne out by the prosecution’s emphasis in its closing rebuttal that Agent Neill’s microscopic hair-comparison analysis “is not a positive means of identification but it amounts to a positive means here.” Thus, without Agent Neill’s hair-comparison testimony, there is a reasonable likelihood that the jury could have accepted Ausby’s defense theory.

Forty-seven years later, Ausby’s conviction is being vacated. If it hadn’t take the DOJ forty years to realize it had a forensic evidence problem, this injustice could have been undone decades sooner.

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Comments on “Appeals Court Overturns 47-Year-Old Murder Conviction Predicated On Faulty FBI Hair Analysis Evidence”

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27 Comments
Anonymous Coward says:

Re: Re:

Injustice perhaps. It does look like there is a lot of other evidence that he was guilty. Hopefully a guilty man won’t walk because of a government screw up. If he’s innocent, he now has another chance to prove it.

Did you even read the fucking article??? Where it said that this "hair" evidence was the only thing that the prosecutors had to contest his alibi for that event.

Let me point it out to you:

As the court notes, other evidence somewhat supported Ausby’s alibi, but it was seemingly shut down by the prosecution’s insistence that the hair recovered from the scene could only have come from Ausby.

Bamboo Harvester (profile) says:

Re: Re: Re:

"challenging his conviction based on the prosecution’s reliance on FBI experts’ overstatements. Thanks to the DOJ’s admission this expert testimony was likely flawed, Ausby can actually pursue this so long after the fact."

The hair used as evidence against him is likely long gone.

It very well COULD have been a DNA match to him.

His appeal was based on the DOJ admitting that past OTHER cases using the FBI "hair match" were likely flawed.

Since the DOJ did admit so, EVERY case that relied on a "hair match" is going to be appealed.

And if, as likely in this case, the evidence was destroyed, the courts will have little choice but to release those convicted solely on such evidence.

This seems like a recurring theme with the FBI and DNA. They get caught every other decade or so outright faking DNA evidence, and rarely is anything done other than that some PR Officer "apologizes".

Pixelation says:

Re: Re: Re:

"Did you even read the fucking article??? "

I did more than that. I read what the appeals court wrote. From the PDF…

"At trial, the prosecution introduced substantial evidence connecting Ausby to Noel’s rape and murder. First, the prosecution called to testify two individuals who encountered a black male in garb resembling Ausby’s in Noel’s apartment building in the days leading up to her murder. One of the two identified Ausby himself from a photo array and in the
courtroom during trial. Second, the prosecution presented evidence that Ausby had left a thumbprint inside Noel’s apartment sometime within ten days of the murder. Third, the prosecution presented evidence that vials of scented oil left inside Noel’s apartment and beneath her windows belonged to Ausby. Fourth, the prosecution presented evidence that the bullet that killed Noel potentially, but not definitively, matched the handgun Ausby was carrying when he was arrested."

Anonymous Coward says:

Re: Re: Re: Re:

"It does look like there is a lot of other evidence that he was guilty"

  • the prosecution called to testify two individuals who encountered a black male in garb resembling Ausby’s
  • One of the two identified Ausby himself from a photo array

The above two items from your post do not look like "a lot of other evidence".

Anonymous Coward says:

Re: Re:

because of a government screw up

While I am rather…annoyed… at the subject matter, this wasn’t a screw up. Scientifically, it was very clear from the very beginning that these conclusions were unsupported by the evidence. At no time did any forensic data support these conclusions. This wasn’t a case of Andrew Wakefield falsifying data to trick others into agreeing with him, the data was collected, analyzed, and published, then the conclusions (correctly) drawn in those studies were ignored wholesale. Nobody "screwed up" here: they deliberately and knowingly lied because it was convenient (in the case of the prosecutors) and profitable (in the case of the labs).

Anonymous Coward says:

Re: Re:

Hopefully a guilty man won’t walk because of a government screw up.

We’re talking about the same government that regularly lets pedos walk because the alternative would be to admit they goofed on on the warrants or explaining how their tech works, in the same way that Malibu Media and RIghtscorp run their business model.

Really, though, considering that government wasted 47 years of this sucker’s time, any punishment they could feasibly receive would be the equivalent of forty slaps on the wrist with a wet noodle.

Anonymous Coward says:

Re: Re:

"If he’s innocent, he now has another chance to prove it."

Has the onus on proof been shifted since I went to bed last night? I am sure yesterday it was up to the prosecution to prove his guilt, not the accused to prove his innocence. This change to the whole system of justice built on the 14th Amendment must have slipped by by as I was sleeping.

"Hopefully a guilty man won’t walk because of a government screw up."

Or, you know, an innocent man wont spend any longer in jail because of a government screw up.

Anonymous Coward says:

Let's assume the evidence was legit

As we’ve seen with dna evidence also correctly matched a crime to a person that was not there. In that case the dna was carried by the ent that cared for a homeless man, and the ent tesponded to call at the crime scene. So it is still possible that there could have been a match. Therefore, it’s not as cut, and dry.

Anonymous Anonymous Coward (profile) says:

Just wondering, what is the statute of limitations on perjury?

Is there some point system in the FBI or DoJ that gets some perquisites for convictions? If not, the why do they do these things? If there is, why isn’t it public?

They work for us, via the Executive branch, but they still work for us. They are sworn to uphold the Constitution, and when they testify in court they swear to tell the truth, the whole truth and nothing but the truth, so help their god (something I have a hard time with as my god is not necessarily their god, nor do I classify my god as a god, but that doesn’t mean I wont swear to tell the truth).

So anything that isn’t the truth is actual perjury. That they perform hand-waving and obfuscation does not make it the truth. Why then, when these types of things come up are not the perpetrators of the inaccuracies (being kind here) brought to justice (again being kind as they are not only perjurers bur failed in their sworn duties as law enforcement officers who did not enforce the law by conjuring evidence) they have failed in their duty?

If is a statue of limitations issue, then that limitation should be removed when it is related to any law enforcement officer and their sworn testimony. They should be liable for their statements, forever. In addition, the court should be required to find that perjury happened and the relevant parties charged, whether they are still engaged in the relevant occupation or not, and if deceased, charged and convicted in absentia. There is no good reason to let the perpetrators of evidence creation go without severe penalties.

There is no such thing as qualified immunity. That is merely a court made up construct that should be shut down by the legislative branch. Not that I expect it, but then the legislative branch frequently disappoints their constituents.

Anonymous Coward says:

Re: Just wondering, what is the statute of limitations on perjur

How about applying your suggested standard to the Clinton “bought and paid for” dossier about Trump? All the officials who used this obviously fabricated salacious dossier to spy on Americans and to engage in a 2 year witch hunt should go to prison, just as you suggest.

You would agree with that, right, given your focus on “the truth” and “the consequences”, wouldn’t you? Equal justice for all, you agree with that, right?

Anonymous Coward says:

When you deprive someone of Life, Liberty and the POH, there had better be OVERWHELMING unreputable evidence. No unreasonable doubt. I would rather see 1000 guilty people go free then 1 innocent be deprived of the what the constitution states are inalienable rights.

The prosecutors use this fake evidence to convict all the time, not because they think the person is guilty, but to get the win. It’s all about how many convictions are notched on to your bedpost, not weather you did the ‘Right’ thing. Lawyers are taught to win by any means and not get caught, that is what ‘Law’ School is for.

Anonymous Coward says:

Re: Re:

Just curious, sorry if it is a little off topic, but you seem like someone interested in actual Justice, you explain it so very well. What do you think of the last SCOTUS hearing, with all the accusations from the past and total lack of any physical evidence or coorberating witness? Did you think it was fair or unfair, and how do you think it relates to what you speak to above?

Bamboo Harvester (profile) says:

Re: Re:

"When you deprive someone of Life, Liberty and the POH, there had better be OVERWHELMING unreputable evidence. No unreasonable doubt. I would rather see 1000 guilty people go free then 1 innocent be deprived of the what the constitution states are inalienable rights."

"Life, Liberty, and the Pursuit of Happiness", as well as "inalienable rights" aren’t mentioned in The Constitution at all.

They’re from the preamble of the F-YOU! letter to King George, commonly known as the Declaration of Independence, and have no more standing in law or government than that poem on the Statue of Liberty that goes on about "huddled masses".

someoneinnorthms (profile) says:

A black man, apparently in the District of Columbia, is apparently suspicious by his mere presence. Whatever.

Forensic evidence is complete and utter bullshit, according to the National Academy of Science. The only exception is DNA evidence, which they concluded is only partially bullshit. If I had a nickel for every time bullshit forensice evidence sent somebody to prison there wouldn’t be any nickels left in circulation.

Anonymous Coward says:

not a 'bug' that's a 'feature' of the privatized jails...

So privatized jails are a big thing (check out the money made by the companies running them and providing goods and services to them), and they are making big money for some people…

The only way to make ‘more money’ is to lock more people up, thus the ‘expert testimony’ gigs showed up (much like the snake oil salesmen of yesteryear, they are here to ‘make you feel good’ while parting you from your hard earned dollars, or liberty in this case.

Sure they could just lock up the convicted criminals, but if they could somehow force more innocent people to be locked up rather than set free (when the facts are somewhat in dispute), I know lets hire someone to say what we want (aka expert witness testimony) in order to lock them up… I’m sure the one who came up with this years ago is high up in the secret society of privatized prisons (sure it could exist, I mean if it’s secret how would you know that I’m just making things up? I mean I’m really just an expert witness on the art of bullshitting after all, I’ll send you all the bill…)

Charles Murray says:

US v John Ausby

I was co-counsel representing John Ausby in the Noel case, as well as the double homicide of two Australian young ladies, 47 years ago. My personal recall of those matters is amazingly good. Both juries were certain of their verdicts and a couple of them referred to facts I really hadn’t focused upon in our defense. The prosecutor did paraphrase the FBI hair expert’s accurately, but it was hardly necessary because of other evidence,
This was a screw-up at the FBI covered up for years. While judges disagree about whether correcting the error would have made a difference in the outcome, it was clear to me at the time and today that the Noel jury got it right, Prosecutor Vince Alto put on a powerful overwhelming, factual presentation which resulted in the guilty verdict against Mr. Ausby.

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