A stray hair found at a crime scene and matched by microscope to hair from a suspect may be a good plot turn in a TV crime show. But in real life that forensic science hasn’t been used in decades – it’s been debunked.
The newest plot turn in Oklahoma is that authorities are now trying to redress any wrongful convictions that occurred decades ago because of heavy reliance on microscopic hair analysis.
The Oklahoma State Bureau of Investigation is working with district attorneys and others to examine about seven dozen cases and determine if they should be reopened, possibly leading to reversal of the conviction and release of people from prison. DNA testing of old hair samples also could affirm the conviction.
Officials would not release names, details or locations of the cases, saying it’s not clear if defendants would want to have their cases reopened. But attorneys said the cases involve serious or violent crimes, including murder, accessory to murder and rape.
“The OSBI anticipates this project will have a profound impact on the criminal justice community in Oklahoma,” the agency said in its application for a $477,539 federal grant in fiscal 2018 that was awarded and is funding the case-review process.
“Using DNA to confirm the identity of a subject in a case or identify those wrongly convicted due to hair comparisons that have been deemed fallible will allow the criminal justice community to provide justice for both the victims and subjects in these cases.”
Oklahoma is one of 10 states that received FBI letters in 2016 after the FBI reviewed cases in which the agency’s crime lab and its experts for microscopic hair comparisons were used, said Ryan Porter, a criminalist supervisor at OSBI’s forensic biology unit.
A 2015 Innocence Project review of exonerations found 74 cases in 20 states involved microscopic hair analysis or testimony that was invalidated or improper. Ten of the exonerations came in Oklahoma.
The OSBI’s effort to review the old cases got off to a slow start, largely because it was using volunteers. That changed after the federal grant allowed the OSBI to hire temporary employees, pay overtime and buy computers for the project. The grant will also pay for DNA testing of evidence in cases flagged in the review.
Using guidance from the FBI, Oklahoma is undertaking the first batch of post-conviction reviews in state cases that used microscopic hair analysis before 2000. Much of the early focus is on whether expert witnesses or prosecutors exaggerated the associations between microscopic hair samples and whether the jury gave the evidence too much weight in its decision to convict.
“In the process of reviewing that, they found several of their hair comparison analysts had actually trained people throughout the nation,” Porter said at a recent District Attorneys Council meeting. “Some of their analysts were making very strong statements about the comparison or match between the hair found at the scene or the suspect.
“(Microscopic) hair comparison is basically debunked at this point. It is not good science, and the OSBI quit doing hair comparisons in 1999 or 2000. We decided that was not the way to go and we take hairs for DNA (matching) now.”
Porter said the OSBI reviewed all pre-2000 cases that involved biological evidence such as hair, blood, semen or other bodily fluids. OSBI staff and contractorsbuilt a database of those 9,108 biology cases, then pulled 986 that had hair comparisons, Porter said. No DNA testing had been performed in 875 of those cases because DNA testing was not yet developed at the time. The list was whittled down to 81 cases that may require review because they went to trial and involved testimony and presentation about hair comparison evidence; the issue is how much weight was given to the comparison in prosecuting the case.
The OSBI is working with district attorneys and the Oklahoma Innocence Project on the case review, along with the University of Central Oklahoma’s Forensic Science Institute.
So far, five old cases have been sent to four district attorneys and the Innocence Project for them to come up with a process on how to handle the rest of the cases. Officials aren’t sharing details because it’s not clear if defendants want to have their cases reopened. Some defendants may have served their time in prison and don’t want anything else to do with the conviction, Porter said.
Andrea Miller, legal director for the Oklahoma Innocence Project, said other challenges might arise from lost physical evidence to make the DNA comparisons. The problems with microscopic hair analysis aren’t new or unique to Oklahoma, she said. Highly publicized cases like those portrayed in John Grisham’s “The Innocent Man” in Ada and some cases involving a former Oklahoma City forensic scientist Joyce Gilchrist also dealt with microscopic hair analysis. Gilchrist was accused of falsifying evidence and conspiring with prosecutors to bolster their cases, although she denied wrongdoing and was never charged with any crimes.
“The problem with microscopic hair comparison in general was that there were no set standards for what constituted something being consistent,” Miller said. “Different analysts had different criteria for determining if something was consistent or not.”
in some cases, the state would get up in closing arguments and call that a match.”
Miller said not every hair-analysis case reviewed will be eligible for an innocence claim handled by the Innocence Project.
“Every case is different as to how significant that type of evidence was,” she said, adding, “We’re going to have to do it on a case-by-case basis. And we’re going to have to figure out what our role is on a case-by-case basis. It’s tricky, tricky stuff.”
Still, Miller said OSBI’s hair comparison project allows prosecutors, forensic scientists and Innocence Project attorneys to work cooperatively rather than as adversaries.
“It’s a nice opportunity for us to go back and review some cases that might need reviewing but do it in a more cooperative way than these cases typically go,” she said.