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July 18, 2013

"U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors"

The title of this post is the headline of this Washington Post article, which gets started this way:

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.   It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions.  Those questions will be explored as the review continues.

The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty.  Some opponents have long held that the execution of a person confirmed to be innocent would crystallize doubts about capital punishment.  But if DNA or other testing confirms all convictions, it would strengthen proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer.  The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined.  The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.

At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes. Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification.  However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.

The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.

Whatever the findings of the review, the initiative is pushing state and local labs to take similar measures.  For instance, the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases, in a state that has executed more defendants than any other since 1982.

Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.

July 18, 2013 at 10:18 PM | Permalink


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Not a surprise.. All one has to do is look at most any federal case.. One qualifies for enhancements onn the flimsiest of poor quality intell..

But when it comes to a variance, one must walk on water and they are still denied..Ever meet a AUSA, hes more God like than the previous one.

Posted by: MidWest Guy | Jul 19, 2013 10:15:21 AM

"Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed."

Small comfort to the dead.

Posted by: onlooker 14 | Jul 19, 2013 1:35:05 PM

Kudos to the FBI and the Innocence Project and the ACLU: Another powerful argument against imposition of the death penalty--to prevent he execution of those possibly innocent.

Posted by: Dave from Texas | Jul 19, 2013 1:37:43 PM

Dave from Texas --

"Another powerful argument against imposition of the death penalty--to prevent he execution of those possibly innocent."

Let's be clear about what abolitionists actually want: To prevent the execution of those unquestionably guilty.

Posted by: Bill Otis | Jul 19, 2013 1:42:33 PM

Bill Otis, we've got to admit this hurts the case for the death penalty. When even the FBI says we've been screwing up. Maybe some innocent folks have been executed. Not good at all.

Posted by: uberconservative | Jul 19, 2013 1:54:56 PM

Let's be clear: at times, including outside the issue of the death penalty, certain things are not allowed because on balance there is a fear that it result in too many cases where a serious wrong will occur. In the process, the thing will be disallowed, even when those wrongs will not occur.

Bill Otis et. al. thinks the threat here is too low to bar the death penalty as a whole. Perhaps, to take an exaggerated example, if the risk was that 1 out of 3 people sentenced to die might be innocent, some of them might feel differently.

They wouldn't in the process simply want to prevent the unquestionably guilty to be executed. They will oppose a system that would risk a significant number of quite questionably guilty, including some innocent, to die.

BO et. al. refute this on the merits. But, that is where the argument should lie.

Posted by: Joe | Jul 19, 2013 1:57:40 PM

to uberconservative:

I agree. Not a good development. I can hear the defense lawyers arguing now in every case whatever science is involved: "can't trust the science" what if its wrong? Even if the FBI says its screwed up plenty in the past. Too late if you execute him.

Posted by: fervent death penalty supporter | Jul 19, 2013 1:57:46 PM

Kudos again to the FBI. Quite a turnaround from their actions in the case of Brandon Mayfield in Portland, Oregon a few years ago.

As readers will recall, fingerprints on a bag containing detonating devices, found by Spanish authorities following the Madrid commuter train bombings, were identified by the FBI as belonging to Mayfield (The FBI experts claimed the prints were "100% verified"). This turned out to be wrong. When the FBI finally sent Mayfield's fingerprints to the Spanish authorities, they contested the matching of the fingerprints from Mayfield to the ones associated with the Madrid bombing. Further, the Spanish authorities informed the FBI they had other suspects in the case,not linked to anyone in the USA. The FBI completely disregarded this information, and proceeded to spy on Mayfield and his family further (by secretly entering and bugging his home0. As was discovered during the court case, even the FBI's own records show that this fingerprint, despite the sworn testimony of FBI experts and DOJ agents, was in all reality not an exact match at all.

The FBI arrested Mayfield and he was held initially with no access to family and limited access, if any, to legal counsel. The FBI initially refused to inform either Mayfield or his family why he was being detained or where he was being held. My friend an colleague, the brilliant federal public defender of Oregon, Steven Wax, ultimately succeeded in having Mayfield released and the case dismissed. Mayfield later won more than a million dollars in a civil suit against the government.

Posted by: Michael R. Levine | Jul 19, 2013 2:17:53 PM

Joe --

Isn't it the case that you oppose the DP for the unquestionably guilty?

I believe that can be answered yes or no.

Posted by: Bill Otis | Jul 19, 2013 2:30:03 PM


We know your arguments ad hominem, and, I might add, ad nauseum. In one of my past lives I performed microscopic analysis of hair, fibers, specks, et al, in conjunction with a well known national firm (MA) to determine the limits of human visibility of particulate matter. I knew that many of the claims made by Forensic Scientists (especially the FBI, or rather FIB) were flat out wrong at best, or worse outright lies. I also knew this about fingerprint analysis as one very seldom has a full print but only a partial. Even DNA can be deliberately doctored. The weakest link in the system is where there is the least integrity, and that is mostly at the top.

I have as much faith in our Justice System as in our Political System which is not very much. I do not have a problem with putting factually guilty people to death for heinous crimes. I have a problem with the acceptance that we may sacrifice an innocent or two to the Justice Gods as an unavoidable outcome from current lazy and dumb practitioners and politicians of this system. That Mayfield was arrested "AND" abused when it could not be established that he was ever in Spain makes you wonder if all federal practioners are practicing with a full deck. Obviously, a full deck is not needed.

Oh, and LE NEVER lies, unlike all defendents.

Posted by: albeed | Jul 19, 2013 7:24:06 PM

albeed --

"We know your arguments ad hominem, and, I might add, ad nauseum."

It wasn't an argument; it was a question.

I do make repetitive arguments in favor of the death penalty, however. That's true. They have been repeated at least since John Stuart Mill's retentionist speech before Parliament 145 years ago. But they are not repeated as often as the fallacies against which they are directed. It's getting to be the case, in addition, that they are not as repetitive as the headline on this blog, "Republicans Support Mass Incarceration Reforms," or the invocation of former pariahs Newt Gingrich, Pat Robertson, etc., to support aspects of the liberal agenda.

Most blogs with a point of view have repetitive entries and comments. That's blog life.

Posted by: Bill Otis | Jul 19, 2013 9:30:27 PM


"Most blogs with a point of view have repetitive entries and comments. That's blog life."

I agree and I also agree with your comment about headlines. For the most part, I enjoy reading your comments. I sometimes visit the C%C blog but the comments there are not as interesting.

At least you are consistent, and I will always be consistent in calling for our Supreme Court to start supporting the "actual wording" of the Constitution and not some claptrap re-invention of it. Otherwise, we really are not a nation of laws, but the custom of the day.

Posted by: albeed | Jul 19, 2013 10:05:52 PM

Bill Otis,

I'm curious to know if you agree or not with uberconservative and with "fervent death penalty supporter," who say that this is not a good development for pro dp folks.

Posted by: reactionary | Jul 21, 2013 5:15:56 PM

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