After 48 Years, DC Appeals Court Overturns Murder Conviction Based On FBI's Garbage 'Hair Match' Evidence

from the yes,-i-have-a-doctorate-in-magnification dept

For decades, the FBI pushed junk science on the courts, resulting in the wrongful convictions of an untold number of people. It wasn't until 2009 that it started trying to undo the damage. And even then, the FBI wasn't 100% sure it shouldn't hold onto to at least some of its favorite junk, even if it had been repeatedly shown there was very little verifiable science behind their expert witnesses' assertions.

All that seemed to matter were the convictions. Appealing a conviction is hard work -- something that takes years to do and requires the assistance of experienced lawyers. The damage has been done and the FBI's belated recognition of its contribution to the farce that is our criminal justice system isn't going to give back years of wrongfully-obtained lives.

By the FBI's own admission, "nearly every" forensic expert deployed to criminal trials gave flawed testimony that overstated the certainty of their findings. This included experts testifying about fingerprints, DNA, and hair analysis, not just those discussing complete garbage like bite-mark matching or asserting mass-produced clothing is as unique as someone's fingerprints.

The DC Appeals Court has just overturned a conviction based on faulty hair match analysis. It comes nearly fifty years after the conviction, meaning the government exchanged bad testimony for most of a person's life. The opening of the decision [PDF] lays out the facts concisely.

Almost fifty years ago, appellant Dennis Butler was convicted of murder. At his trial, an FBI forensic expert testified that hairs found on the victim were microscopically identical to Butler’s hair. The government recently acknowledged, though, that hair evidence of the kind introduced against Butler was false and exceeded the limits of science, and that the prosecution knew or should have known as much at the time of his trial.

Butler has spent decades in prison because the FBI spent decades saying having a microscope was the same thing as being a scientist. The court says it's not even close… and it's a statement made using the FBI's own findings.

Hair microscopy called for forensic examiners to conduct side-by-side, microscopic comparisons of hair samples in an effort to ascertain whether hairs from a crime scene matched hairs from a suspect. The government used ostensible matches at trial as scientific evidence linking defendants to crimes.

There was, however, a significant problem with that field of analysis: science had not validated its foundational premises. Existing studies failed to support a trained examiner’s ability to identify a “match” based on any objective system of visual hair comparison or to validly estimate the frequency of hair characteristics (and therefore of matches) in the general population.

This lack of scientific confirmation didn't stop the FBI from using hair matches in court, even after it knew the "science" behind it was lacking. It wasn't until the National Academy of Sciences called the FBI out in its report on hair analysis that the FBI began reining in its expert witnesses. Following this public fisking by actual scientists, the government reviewed thousands of convictions obtained with hair analysis prior to the year 2000. Butler's was one of them.

So, the question is: did the prosecution rely on the FBI's faulty testimony to secure this conviction? The answer is "yes." The government's evidence (beyond the supposed hair match) were two unreliable witnesses whose stories changed frequently, some paint chips (from the recently-painted apartment Butler had visited while it was being painted), and some eyewitnesses who put Butler near the crime scene (with the prosecution dodging the fact that Butler was often in the area where the murder took place for non-murderous reasons).

Here's the prosecutor during closing arguments, discussing the expert witness' testimony.

He said when he compared the hairs that were found on the victim’s clothing with the defendant’s hairs that were taken by [the detective] from him at the infirmary, when he compared those two, what were they? They were the same in every microscopic detail, the same. I said, how often . . . does it happen? You can’t be positive, yes, but how often does it happen that two people’s hair, two different people, are so similar and so alike that you would be unable to tell? Out of 10,000 examinations, he said he recalls it happening approximately four times.

And again:

You have the FBI report saying that this man’s hair compared with the hairs found on the body of the dead man. They are the same in every microscopic characteristic—every one. You heard the sixteen possible combinations, lack thereof, etc. Every one matched.

This influenced the jurors, the Appeals Court says. The jurors could have found the other evidence circumstantial, at best. But the repeated (incorrect) assertion that hair match analysis could positively identify Butler as the murderer most likely swayed the jury, resulting in a conviction that resulted in Butler being behind bars since late 1970.

We found it satisfied in Ausby, and we do likewise here. And we thus conclude that the government’s presentation against Butler of evidence that it knew (or should have known) was false denied him a fair trial.

For the foregoing reasons, we reverse the judgment of the district court and remand with instructions to grant Butler’s motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

The FBI convinced itself it could craft new forensic techniques out of thin air and deploy them without making sure they actually had some scientific basis. This is the end result of this hubris -- acts that took decades to correct and even longer to result in actual justice, rather than unearned convictions. Some of the people screwed by the FBI's junk science are already dead. Others, like Butler, may finally see their lives given back to them -- but with hardly any life left to live.

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Filed Under: dennis butler, false convictions, fbi, hair match

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  • identicon
    Anonymous Coward, 23 Apr 2020 @ 1:40am

    Criminal Justice System Is Criminal .

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

  • identicon
    Anonymous Coward, 23 Apr 2020 @ 5:51am

    this to me is typical even of what is happening today in USA. none of the prosecutors are prepared to go to trial unless they are certain of getting a win, even when they know the suspect is innocent. in these cases, they trump up some situation whereby the suspect is forced to take a deal or face more, even worse charges! there is, in fact, almost no justice anymore, from the police offices on the street, making up charges against innocent parties, even killing people without any justification at all, to the courts. the only thing that is important to all those on that particular side of the fence is making sure they win. to my mind, it makes a real mockery of their slogan 'Protect And Serve'! yeah, right!!

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

  • identicon
    Anonymous Coward, 23 Apr 2020 @ 5:59am

    In the meantime, the real killer stays free and another innocent life is essentially lost.
    How many of these were death penalty cases?

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

  • identicon
    Average Guy, 23 Apr 2020 @ 6:30am

    If the various CSI shows have taught me anything, and they haven't, it's that sufficiently advanced technological gobbledygook is indistinguishable from science. Sure, we can take a satellite photo of a vehicle and enhance it to a microscopic level to pick up a fingerprint off the door handle without losing any granularity because that's exactly how cameras work. Just like if you take a picture of somebody from the back you can rotate the picture 180 degrees on a computer screen and see their face.

    Heck, I remember an essay in the old OMNI magazine from probably somewhere around 1980 that warned about the problem of judges acting as gatekeepers on the subject of expert witnesses - if judges have to rely on expert witnesses because they can't be expected to know enough about increasingly complex questions of science and technology, how exactly are judges expected to know who is and who is not an expert in the field? They can't, they just throw up their hands, let anybody who claims to be an expert testify and let the jury decide which expert to believe. A doctor of homeopathic medicine is certainly a type of medical doctor, isn't he? And who even knows the difference between a phrenologist and a phlebotomist, an astronomer and an astrologist, geology and geomancy, a wise man and a wise guy?

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

  • icon
    JoeCool (profile), 23 Apr 2020 @ 6:43am

    Wrong word?

    wrongfully-obtained lives

    Maybe "wrongfully-detained lives"?

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

  • identicon
    Anonymous Coward, 23 Apr 2020 @ 7:43am

    hair matches, under normal circumstances, can be valid

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

  • icon
    restless94110 (profile), 23 Apr 2020 @ 7:53am

    The FBI is Useless except for bad

    If the FBI is not entrapping fake "terrorists," they are presenting faulty forensics as 100 percent accurate. They mishandled Waco, Ruby Ridge, even the Boston Bombing, tried to frame Richard Jewell, and many others lesser known. Defense Attorney Sidney Powell has just stated that Comey and his FBI never got a search warrant for Weiner's laptop that included the Hillary emails that were on it, then went before the press and lied that they found nothing in those emails, a bald-faced liem since they had no warrant to look at any of them at all. There is strong indications that the FBI believe that the ends justify almost any means. They are corrupt, inept, and useless.

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

  • identicon
    Anonymous Coward, 23 Apr 2020 @ 12:09pm

    the FBI wasn't 100% sure it shouldn't hold onto to at least some of its favorite junk,

    I saw what you did there.

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

  • identicon
    Anon, 23 Apr 2020 @ 12:50pm

    Years Ago

    I remember hearing on CBC (Canadian Broadcasting Corp) a recreation of a court transcript when the scandal of "hair match" evidence first broke. A defesne lawyer is grilling a "hair expert" and the argument goes in circles...
    "So the hair samples were identical?"
    "not identical. Similar."
    "So they were different? How were they different?"
    "they weren't different, the were similar."
    "So they were identical?"
    "No, they were similar "
    "If they weren't identical, how did they differ?"
    "They didn't."
    ...rinse and repeat for several minutes. But in the end, the fellow was convicted, almost solely on that evidence... because he'd been a good samaritan, and went to investigate noises in the next apartment, found the door open and occupant dead and called the police.

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

  • icon
    ECA (profile), 23 Apr 2020 @ 1:31pm


    NOW what happens?
    A person in jail 90% of their life is released and has WHAT??
    Family? friends? few and far between..
    Work? NOPE.
    Social security?? REALLY?>???
    So is the gov. going to take a hit and pay this person EQUAL to his life of work for the last?? 50 years??
    $10,000 per year for 50 years?? 1/2 million/$500,000...

    I REALLY doubt it.
    He will need a lawyer who will get most of that money and the Fed will Stall, until he dies of old age.

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

    • icon
      Tanner Andrews (profile), 25 Apr 2020 @ 11:17am

      Re: But,

      The nice thing about qualified immunity is that the expert (who made stuff up and peddled it as science) will never be held negligent for not using ordinary care.

      Of course there would also be a limitation problem: his lies and unreliable expertise were decades in the past.

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

      • icon
        ECA (profile), 25 Apr 2020 @ 1:36pm

        Re: Re: But,

        Dont you love the Secrets act??
        Bury What politicians DID for 40 years, and after most are dead and gone and the incident is now past legal consequences.

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

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