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Hair Analysis: The Root of the Evidence Problem

Texas takes on first-in-the-nation statewide case review
Jordan Smith, 3:10pm, Mon. Jan. 13

The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.

Texas' planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers.

Many of the Texas' hair examiners were trained by the FBI, so the state review makes sense, according to the Innocence Project of Texas, which is among the stakeholders collaborating with the FSC on the review. Indeed, the FSC noted this in its most recent annual report. "The FBI has also indicated that it trained many microscopic hair analysts in state and local crime laboratories, including some laboratories in Texas," reads the report. "Of course, this does not necessarily mean that state and local analysts made similar [scientific] overstatements" as did the FBI analysts at issue in the federal review. Still, as it is with that review, Texas' inquiry will focus on older cases, because microscopic hair analysis was more common in the 1980s and 1990s, before the rise of DNA testing.

Indeed, faulty hair analysis has been implicated in the case of at least one executed Texas inmate, Claude Jones, who was sentenced to die for the 1989 shooting of a liquor store owner. Jones maintained his innocence to death, and it wasn't until some 10 years later that DNA testing sought by the IP and the Texas Observer proved that the hair that the state said linked Jones to the crime wasn't his at all.

Twenty labs across the state do hair analysis, FSC general counsel Lynn Robitaille Garcia told the commissioners, including 12 Department of Public Safety labs and eight additional public labs (generally county or police department crime labs). The labs are currently in the process of going back and "identifying hair cases" to submit for possible review, she said. So far, four labs – including the Southwestern Institute of Forensic Sciences in Dallas and the Bexar County lab – have supplied lists of cases, she said, totaling "a few dozen" where "positive association" was made between a defendant and crime scene evidence. Garcia said a database review of appeal court decisions that mention hair analysis yielded a list of some 85 cases. Those cases will be sorted by jurisdiction and supplied to county prosecutors and to participating labs to help them cull through relevant records.

Stakeholders – including a representative from IPOT, Galveston County D.A. Jack Roady (representing the Texas District and County Attorneys Association) and veteran Harris County public defender Bob Wicoff (who helped with the inquiry a decade ago into the beleaguered Houston PD crime lab) – will not only have to gather trial transcripts for each case, but will also have to determine what specific information they'll be looking for to determine if the in-court analysis of hair examiners overstepped the bounds of the science. "Remember, most of these cases, where they went wrong was in the testimony," Garcia said. The vote at Friday's meeting gives the go-ahead for stakeholders to begin that process. "It's not a small or short-term endeavor," she said.

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