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.

Filed Under: doj, false conviction, fbi, forensics, hair, john ausbry, murder


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  • identicon
    Pixelation, 21 Mar 2019 @ 3:06pm

    "...this injustice could have been undone decades sooner."

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2019 @ 3:10pm

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Bamboo Harvester (profile), 21 Mar 2019 @ 3:27pm

        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".

        reply to this | link to this | view in chronology ]

        • icon
          JoeCool (profile), 22 Mar 2019 @ 7:59am

          Re: Re: Re:

          It's unlikely the hair would have had any DNA in any case. Most hair found at crime scenes are just parts of the shaft, but DNA is only found in the roots of hair. Hence the reliance on hair "matching" in most cases.

          reply to this | link to this | view in chronology ]

      • identicon
        Pixelation, 21 Mar 2019 @ 3:37pm

        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."

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Mar 2019 @ 6:33pm

          Re: Re: Re: dirty cops

          As if people willing to lie about the validity of "hair evidence" couldn't coach two witnesses, fudge the ballistics, and frame a guy she just happened to know?!

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 22 Mar 2019 @ 3:04am

            Re: Re: Re: Re: dirty cops

            As if an anonymous idiot on the internet couldn’t imagine any kind of crazy shit and then try to pass it off as an actual argument. Maybe it was you! How else could you know so much about this case? Guilty conscience bugging you after 47 years of the wrong guy getting buggered?

            reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 22 Mar 2019 @ 1:43am

          Re: Re: Re:

          That's not really enough, though. It's mentioned that the defence was that he had been inside her apartment, just not on the day of the murder. Since none of the first 3 pieces of evidence contradict that, all you're doing is corroborating what the defence stated.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Mar 2019 @ 6:31am

          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".

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2019 @ 5:04pm

      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).

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2019 @ 7:31pm

      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.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 22 Mar 2019 @ 1:48am

      Re:

      "Hopefully a guilty man won't walk"

      Unless I'm missing some context here, he's been locked up for 47 years. The correct concern is whether an innocent man had nearly 5 decades of his life robbed from him, not whether a guilty man didn't serve a full life sentence.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2019 @ 4:35am

      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.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2019 @ 6:34am

      Re:

      "Hopefully a guilty man won't walk"

      Because that is what is important - right?

      We might as well just lock everyone up right now because it is impossible to obey all the laws all the time and that makes us all criminals so we had better just lock ourselves up.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2019 @ 7:18pm

    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.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 21 Mar 2019 @ 7:28pm

    I hope he gets out and lives next to you, Tim Cushing.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 21 Mar 2019 @ 7:39pm

    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.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 22 Mar 2019 @ 12:37am

      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?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2019 @ 5:31am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2019 @ 6:31am

      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?

      reply to this | link to this | view in chronology ]

      • identicon
        Bobo, 22 Mar 2019 @ 9:02am

        Re: Re:

        Not getting a job has a much lower bar of evidence then life in prison. And his conduct during the hearing is far beyond disqualifying on its own.

        reply to this | link to this | view in chronology ]

    • icon
      Bamboo Harvester (profile), 22 Mar 2019 @ 3:09pm

      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".

      reply to this | link to this | view in chronology ]

  • icon
    someoneinnorthms (profile), 22 Mar 2019 @ 10:46am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2019 @ 11:14am

    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...)

    reply to this | link to this | view in chronology ]


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