August 26, 2020 • 34 mins
Josh Dubin speaks with Vanessa Antoun, Senior Resource Counsel at the National Association of Criminal Defense Lawyers (NACDL) to learn about Hair Microscopy Evidence.
Even when examined under a microscope, the similarities that can be observed between two hairs are open to wide interpretation, there are no definitive traits that can prove with any scientific certainty that a suspect’s hair matches a hair found at a crime scene. Yet hair comparison analysis was still being used to falsely identify and convict innocent people up until the year 2000 and people are still incarcerated who were convicted based on this false evidence.
So how did this evidence get admitted into courts in the first place?
Learn more and get involved.
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https://www.wrongfulconvictionpodcast.com/junk-science
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Washington, d C. A muggy summer day finally starts to
cool as night falls. Street lights turn on, Crickets chirp,
there's the soft jingle of the tags on a dog caller.
A black poodle walks up someone's porch steps, sniffs around.
The dog leaps back down the stairs when its owner
calls its name. A few hours later, on those same
(00:24):
porch steps, the man who lives there slowly walks up,
and a masked figure walks up behind him. There's a gunshot.
Someone screams. The shooter makes a run for it, ripping
a stocking mass from his face. It lands on a
porch step as he disappears down the street into the night.
(00:46):
You live down the street from where the gunshot went off.
Three days later, you're hanging out with your girlfriend and
your mom's basement, sitting on the couch watching TV. Your
mom is upstairs cleaning up after dinner, and then there's
a knock at the door. You hear someone introduced themselves
as an officer, officers something or other, and damn it,
(01:10):
you think, and your teenage mind you figure he must
be there about the parking ticket you got a few
weeks ago, and didn't bay yet. Your mom's gonna be pissed.
You head upstairs, but they cuff you and take you away.
You're brought down to the station and put in a cell,
and they tell you that you'll be tried for the
(01:31):
murder of your neighbor. The next day you're transferred to
the county jail, and you're beginning to absorb the shock
of it all. The one thing that you can't get
past is the filth. It's just terrible in there, everything
from the bugs to the food, to the living conditions,
and the noise. The noise is unbearable. You can hardly sleep.
(01:55):
You begin to miss out on things. Your family's summer
vacation comes and goes. Six months pass. You would have
had your g D by now. The year slips by,
and then a year turns into a year and a half.
Your nieces and nephews, the ones that you helped raise
or growing up. You've spoken to them a few times,
(02:16):
but they haven't come to visit. Are they thinking that
their uncle may have done this? You miss out on
the final years of being a care free team. It
seems as though everything's moving on without you. Finally, after
two agonizing years, your case goes to trial. You want
(02:36):
to get your life back. You didn't kill anyone. You
were in that same basement all night when someone else
climbed your neighbor steps and ended his life with a
single gunshop blasts of the head. A few weeks ago,
an officer came to your cell and cut some of
your hair. Of course, you willingly let them take it
(02:58):
because you were sure to help prove your innocence. As
you sit in the courtroom at your trial, the prosecutor
says that there was a nylon stocking mass found at
the scene of the crime. An FBI agent takes the
stand for the prosecution and tells the jury, I compare
the defendant's hair to the thirteen hairs found on the mask.
(03:20):
This agent tells the jury that the defendant's hair is
indistinguishable from one of those thirteen hairs. The prosecutor says,
there's one chance, perhaps for all we know, in ten million,
that it could be someone else's hair. This single hair
proves critical because it's the only physical evidence that ties
(03:43):
you to the homicide. You're told the jurys reached a verdict.
The shuffle back into the courtroom, and none of them
will look at you. When you hear the word guilty,
there's the sudden eruption of uncontrolled sobbing, like the turning
on of a spigot. There's the unraveling of your mother
(04:03):
and whales. Not my baby, my baby didn't do it.
Your ants are crying, your relatives are trying to console
each other. There's just a medley of weeping and misery.
You feel like you're going to pass out. The room
is sideways, and then it's upside down, and then you're
all white. All you can hear, all you can see.
(04:25):
Everything turns white, and you go numb. You're sentenced to
twenty years to life and stay prison, and then there
is nothing. Everything goes blank. You do everything you can
to prove your innocence. You write letters, study the law.
(04:48):
Your father comes to busy you just about every single Saturday.
But he dies four years after your arrest. Your mom
dies two years after that, and you can't go to
either of their funerals. You can't help but to think,
did this kill them? My wrongful conviction. You sit in
your cell, numb most days, and you try to recall
(05:11):
little things that will bring some comfort. To smell your
mother's cooking, sitting around, playing cards with your friends, holding
hands with your girlfriend, and your mother's basement watching TV.
You live a lifetime in that prison, thirty three long years.
(05:31):
It takes all of that time for the district attorney
to finally agree to test the DNA contained in the
hair that was found on that stocking mass that dropped
to the steps of that porch. It turns out the
way you knew it would. Your DNA does not match
any of those thirteen hairs. But they do figure out
(05:52):
who one of the hairs belongs to, and it's not
a person. Turns out that one of the hairs they
found on that stock and mask and argue to the
jury was a human hair belonged to that poodle. When
you re enter the world, they say you're free, but
are you really. You went in as an eighteen year
(06:12):
old boy and came out a fifty one year old man,
and you've aged beyond your years. You're fighting an illness
caused by the burden of carrying around your innocence for
your entire adult life. You die at the age of
fifty nine, enjoying only eight free years with what's left
of your family, But your death you're suffering is not
(06:35):
in vain. After you were found to be innocent, the
FBI starts to re examine over three thousand cases where
similar evidence was used. They're looking for other people who,
like you, were wrongfully convicted of crimes they didn't commit,
people whose lives were destroyed by the junk science of
(06:56):
hair comparison analysis. The story you just heard is based
on true events of Sante Treble's life. He was wrongfully
convicted in and exonerated in two thousand twelve. He passed
away in July. This episode is dedicated to him. I'm
(07:26):
Josh Duman, civil rights and criminal defense attorney and innocence
ambassador to the Innocence Project in New York. Even when
examined under a microscope, the similarities that can be observed
between two hairs are open to wide interpretation. In other words,
there are no definitive traits that can prove with any
scientific certainty that a suspect's hair matches a hair found
(07:50):
in a crime scene. Yet hair comparison analysis was still
being used to falsely identify and convict innocent people up
until the year two thousand and Today, there are still
people who are incarcerated that were convicted based on this
false evidence. So how did this evidence get admitted into
(08:11):
courts in the first place. Turns out, hair my Croscoby
was born in the eighteen hundreds, and the methods used
to analyze and compare human hairs haven't changed much since.
(08:31):
In eighteen sixty nine, a man named John Dorsey was
accused of killing his wife by beating her over the
head with a club in his own yard in Massachusetts.
During the trial, two men claim that they had seen
hairs attached to the alleged murder weapon, and that the
hair appeared to be brunette human hair that was the
(08:52):
color of Mr Dorsey's wife's hair. Mr Dorsey was shocked
his wife was brunette, but so were his horses. According
to Mr Dorsey, the club wasn't a murder weapon, it
was just one of many pieces of wood that was
set out by the horse stables. The hair on the
clubs didn't belong to his wife, but was the hair
(09:13):
that had fallen from his horse's tail. But the court
ruled that Mr Dorsey couldn't present this account about the horsehair. Meanwhile,
the testimony from the men claiming that hair was Mr
Dorsey's wife's was permitted. Mr Dorsey was eventually convicted of
killing his wife. This was the first time ACCORD admitted
(09:35):
hair comparison analysis as evidence in our legal system, and
it definitely wouldn't be the last. Over a century later,
animal hair and human hair would again be an issue
and the Sante triple case. That case was just an
example of the overconfidence in overreaching and what it could
(09:59):
do two different individuals. The idea that not only could
they be wrong about linking a hair to a person,
which they can because you can't do that at all,
but that they can't even identify what is human hair
and what isn't. Not only did it occur in that case,
but it continued to occur unchecked. That was just outrageous,
(10:25):
all right. So joining us today is Vanessa Antone and
Vanessa is a member of the National Association of Criminal
Defense Lawyers. I think will refer to them as the
n a c d L. And this is just a wonderful,
wonderful group. Um. I'm a member of the n a
c d L. And it is a policy and advocacy
organization that really is on the ground working for reforms
(10:50):
and improvements in the criminal justice system. You're gonna learn
about a really remarkable project that they have been involved
in with the FBI, and Vanessa is a key member
of this project. And what they are doing is reading
hundreds of transcripts from old cases and cases where defendants
(11:11):
and the accused were convicted and in many cases wrongfully
convicted based on hair comparison analysis. So to start, Vanessa,
hair comparison analysis is also called hair microscopy, and we'll
use these terms interchangeably, but tell us a little bit
about what hair my crosscopy or or hair comparison analysis
(11:33):
is exactly. It's looking at hair under a microscope, as
as you would think from the title. But what a
well trained hair examiner was supposed to be able to
do is look at different characteristics and hair and try
to make an association from those characteristics. They look at
(11:57):
characteristics like the color and the thickness, whether it looks wavy,
if it has what they call scales on the cuticle,
whether it's smooth or bagged. They also look at the
part of the hair that's the medulla, which is the
middle of the hair, and they look at the shape
of that, the thickness, the color. They also look at
(12:20):
the cortex, which is the main part of the hair,
and that gives the hair characteristics like the pigment. And
when they do the examination, they make note of all
these characteristics in like a known sample of hair, and
then they seek to compare that to the evidentiary hair.
So it sounds scientific, I guess in a way. The
(12:40):
examiner takes some hair from the suspect's head and they
know where that's coming from because it's the person that's
accused of the crime right in front of them, sitting
in a jail cell. So they take that hair and
put it in a little bag and label it, and
they take that hair sample compare it to what you
(13:01):
refer to as the evidentiary hair or the unknown sample
that was found at the scene of a crime. And
so they're looking at characteristics of the hair found at
the crime scene and then seeing if the person that
they claim committed this crime has hair that matches these characteristics.
But the problem seems to be that there are so
(13:23):
many different characteristics and variables and hair that matching one
hair to another, and you know, doing that to try
to find out whether it came from the same person
isn't as easy as some might think in reading all
of these transcripts from hair examiners, you know, throughout decades
(13:45):
until two thousand, they would tell you that there's a range,
even in a person's own head of hair. They don't
all look identical. So where does hair my cross copy
really run into trouble? Why isn't it reliable? Microscopic hair
comparison doesn't rely on a chemical analysis or a set
(14:07):
of concrete standards to associate or to make a comparison.
It's what is known as a pattern and matching discipline.
So it's basically eyeballing it. It's a subjective forensic discipline.
In fact, in the words of one of the FBI
hair examiners, it's the most subjective of the forensic disciplines.
(14:30):
As another microscopic hair examiner said, you just, um, you know,
sometimes you get a feeling about a hair and you know,
it just bowls you over and you just look at it.
And so that's why there won't be a database. You
can't make a database of that type of subjective feeling
about hair. Yeah, I get it. I mean you could
make a database of people's subjective feelings about hair, but
(14:53):
it's not going to tell you very much. But it
really begs the question why we're prosecutors using this to
try to get convictions. If it's so subjective and so speculative,
why were they using it at all. Generally they would
start out operating on the you know, the transfer principle
(15:13):
that if your hair falls out and you're in a
location or you're near someone, hair can transfer to another
person or to the place that you're in close proximity to,
So it could give evidence of someone's presence in a
certain location or with a certain person. When that is
one of the few pieces of evidence you have, obviously
(15:36):
you want to pursue that. And a lot of these cases, um,
not all, but a lot of them were in pre
DNA times, so this would be very powerful evidence when
you can't just DNA test something. So what you had
is the hair. But DNA testing could come out in
(15:56):
the nineties, So why wasn't it being used on hair evidence?
Why were prosecutors still an FBI examiners for that matter,
still using this hair comparison analysis. When we think of
DNA testing, that's nuclear DNA testing, And the problem with
hair and why this happened was because unless there was
(16:19):
tissue at the root of the hair. Like if you
yank your hair out and it may or may not
have some tissue at the root. Unless there was tissue
there that could be tested with nuclear DNA, you couldn't
do a DNA test on hair. All you could do
is eyeballowed under a microscope until mitochondrial DNA, you know,
different type of DNA testing allowed testing of the hair
(16:43):
shaft to give a result. So in all those decades
that was not there, that technology wasn't being used, and
it wasn't until around two thousand that even you know,
the FBI lab started using that in all the cases,
and that is when they could actually look at the
(17:03):
hair and say conclusively, no, it wasn't from this individual.
I want to talk about three cases that all occurred
around the Washington, d c. Area. One was Sante Tribble,
(17:25):
who we mentioned earlier, where a dog hair was mistaken
for a human hair. Now, another case was the case
of Donald Eugene Gates. And Donald Gates was accused of
raping and killing a girl in a park. Now, during
his trial, an FBI special agent testified that Donald's hair
was quote microscopically indistinguishable end quote from hair is found
(17:49):
on the victim's body, and based on that that the
hair from the crime scene probably belonged to Donald Gates.
And so Donald was convict did and sentenced to twenty
years to life in prison. And then there's yet a
third case, and that is the case of an eighteen
year old named kirk Odom. Now this one was, you know,
(18:13):
another sort of mind bending example of this junk science
being applied, because you you have Mr Odom just walking
down the street one day. He's on his way to
go see his infant daughter at his house, and a
cops stops him on the street and says, you know,
you look like the guy in this picture. And the
picture was a sketch that had been drawn based on
(18:35):
a description given by a woman that had been attacked,
blindfolded and raped by a stranger with a gun. And
the victim only got a brief look at her attacker,
but the officers drew the sketch based on what she described,
which was basically a young black man. Based on that,
the officer arrests kirk Odom. And you have another exam
(19:00):
uple of an FBI agent testifying at a trial. And
here the agent gets on the stand and says kirk
Odom's hair matches essentially hair found on the victim's nightgown,
and they used the same sort of language that it's
indistinguishable from Kirk's hair. Kirk spent over twenty two years
(19:20):
in prison. So what happens next is mitochondrial DNA testing
finally becomes available, right, that's the DNA testing of hair.
And all three of these men's hair was tested and
what do you know, none of their DNA matched any
of the hairs that were found at the scenes of
(19:40):
these crimes. And at this point, the FBI couldn't hide
behind this anymore. So tell us, Vanessa, what happens next. Well,
I was lucky enough to be working with n A
c DL when um an A c d L joined
in work in a partnership with the FBI, the Department
of Justice, and the Innocence Project to conduct a review
(20:04):
of the FBI Hair Examiner's cases from you know, whenever
they started, when the earliest we could find up to
about two thousand. And that came about for a couple
of reasons, one of which was the National Academy of
Sciences Report on Strengthening Forensic Science, which looked at pattern
and matching disciplines, including specifically hair comparison, and said, you know,
(20:28):
it just doesn't have a sufficient foundation to be used
for identifying people. So the n A c d L
Is working with FBI, and you start going through all
of these old cases. You're reading the transcripts, and these
are trials where hair evidence was used to get a conviction.
So what did you find. Part of the frustration that
(20:50):
the lawyers had and that we all had reading these
transcripts back to back was the continued nature of the
same states that were unscientific, and so we called them
error type one, two and three. And in Layman's terms,
air type one is basically where they're making a one
(21:11):
to one association between a person and a hair, which
can never be done with microscopic hair comparison. So that's
when an examiner either states or implies that the evidentiary
hair can be associated to a specific individual to the
exclusion of all others, and that would include statements indicating
(21:33):
that hair is unique. Sometimes an analogy of a fingerprint
was used in testimony. Well, it's not exactly like a fingerprint,
but it kind of is. And that's why we can
say that this hair came from this person, So that's
that one to one association, and that is absolutely incorrect.
You can't say hair is unique and use it to
(21:55):
associate people. You know, you shouldn't have to say it's
like this, sort's like that. You should just say what
it is, and if what it is isn't enough, then
it shouldn't be used to connect the hair to a person.
That wasn't really the most common type of error or
scientifically invalid statement we saw. It was usually what we
(22:18):
call error to and what I'm talking about. There are
statements like, well, it would be rare if two hairs
that looked this similar came from two different individuals, And
those were the things we were looking for in the review,
and unfortunately found that in the majority, the vast majority
(22:40):
over n of cases where FBI examiners gave testimony, the
conclusions were exaggerated and there were scientifically unsupported statements in
the testimony. Look, I always knew this was bad, but
of the cases, I mean, that's just an insane statistic.
And you know, our listeners really need to remember that
(23:01):
these weren't just any experts coming in to give testimony.
This is the FBI. This is you know, an organization
that has a reputation for having attained higher knowledge, you know,
knowing more than just everyday people. When an FBI examiner
comes in, especially in a state case, great weight is
(23:24):
given to what they say. It is very impressive to
have the FBI show up and explain a discipline and
tell you what something means in their experience. And that's
what happened in some cases. And the FBI was asked
to do hair examination when the local examiners couldn't make
(23:45):
an association, which makes the whole thing even more questionable
because the inquiry should end there. You shouldn't be able
to try to find someone else who will give you
the answer that you want. Also, they found that the
FBI hair examiners kept their identity as law enforcement agents
first and foremost. And they found the instead of acting
(24:08):
like impartial scientists, the FBI lab culture at the time
embraced the agent examiners acting like more like detectives, and
that that approach should have been pulled back. And remember, no,
you're independent. This is scientific. You're not part of the
law enforcement investigative team. You're a scientist. So Vanessa, you
(24:31):
read transcripts from a ton of cases a lot of testimony.
Were there any that really stood out to you where
you sat back and said, Wow, this is really bad.
A couple of things where I thought I could not believe.
This was the case where the examiner said that he
had significant experience, you know, examining pubic hares from people
(24:53):
from Mexico, and therefore he could exclude people from Mexico
from having concier We did the pubic hare in the
case at hand. Obviously that was because the alternate suspects
other than the defendant were from Mexico. So that was
entirely made up. I mean, I can't even there's there's
no point trying to be nice about it. That's not
(25:15):
a thing anybody can ever say, and it was just
made up. You can't say that a hair came from
an individual of a particular racial group. They can look
at the hair and talk about some of the ancestral
origins and some of the classifications into groups at a
huge broad level, which really wouldn't have value and you know,
(25:38):
clime investigation, but they absolutely can't say that it did
or did not come from a person from a certain country. Um,
so that's you know, that's pretty ridiculous. So after you
(26:01):
review the transcripts from a case, and let's say you
determine that you know, an expert or a so called
expert came in and gave testimony and said things that
were just outside the bounds of science. UM, and there
was a conviction. What happened next? What were the next
steps of the review? I seek to assist folks in
(26:24):
finding counsel and um hooking them up with lawyers who
could assist them to pursue any claims they might have.
If that type of evidence was used in their case,
they would do the DNA testing on the hair, or
if no hair could be found after all these years,
because these are old cases, they would do testing on
(26:44):
other biological evidence as long as a chain of custody
could be established. So look, I just have to say, UM,
and if this is a shameless plug, so be it.
The N A C d L is just it's a
remarkable organization because you're not only exposing problems which you
certainly did hear, but it goes that extra step to
(27:05):
helping people that you know, have been the victim of
a wrongful conviction or the victim of you know, testimony
that goes outside the bounds of science and getting them
help and hooking them up with lawyers. So you must, Vanessa,
have had an interesting experience from all these cases. What
is your biggest takeaway from this work? No matter how
(27:29):
much you want a conviction or how much other evidence
you think you have of guilt, it's never appropriate to
admit unsupported science in the idea that using certain techniques
are needed as tools to quote unquote catch the bad
guys um, which is still a conversation that's going on
(27:52):
with forensic science today. That's the fear that law enforcement
won't have the tools they need to catch people or
to convict people. And the appropriate response should be, well,
those tools have to be scientifically valid and they have
to be scientifically sound. So can't this model that the
(28:15):
n A, c, d L and the FBI employed here,
which is re reviewing cases and exposing problems and helping
right these wrongs. Can't this model be applied to other
disciplines of junk science. It just seems so effective and
you're able to help so many people. As a result
of the FBI Hair Review and other movements to make
(28:40):
sure forensic science was more reliable for the court room,
there were plans in the Department of Justice in the
last administration to do similar reviews of other pattern and
matching disciplines, to take a historical look back and see
if in some other disciplines in the FBI lab that
(29:00):
were susceptible to similar errors, if similar errors had occurred,
and like the hair of view to find those and
identify them and provide notification and give a means for
folks to address those um potential scientific overstatements. All right,
So the way you say van s h when you
(29:21):
say there are war plans in the Department of Justice,
um to do this historical look back makes me have
the sinking suspicion that maybe it didn't pan out. What
happened that, along with several other plans, was rolled back
by then Attorney General Sessions. Under the new administration, it
(29:44):
has become a little harder. We have to be extra
vigilant when you're dealing with a situation where plans for
progress were abandoned. So while a lot of progress has
been made, there's a lot to be done. You know,
cases are still litigation, cases still need to be litigated. So, yeah,
(30:07):
the struggle continues. You might be listening to this wondering
what you can do to help. Thanks to the work
that Vanessa is doing with the n A c d L,
many individuals have been exonerated. But being exonerated means moving
from a life of injustice and hardship in prison to
(30:29):
another kind of very difficult life outside of prison. Take
for example, Drew Whitley, in the manager of McDonald's, was
murdered in Pennsylvania. Another McDonald's employee was there when the
crime occurred. The witness could not see the face of
the perpetrator because he was wearing a ski mask, but
he claimed nonetheless that the person that committed the crime
(30:52):
had been Drew Whitley, his neighbor. Investigators found a hair
on a ski mask which was found near the crime scene.
They compared it to Drew's hair and claim that it
matched Drew. Whitley was convicted and sentenced to life in prison.
After fighting for years, Drew was finally able to get
the hairs from the crime scene tested for mitochondrial DNA.
(31:15):
The hairs did not belong to him, and he was
exonerated in two thousand and six. The trauma from his
wrongful conviction remains. He's always looking over his shoulder with
the constant and perhaps justified worry that a police officer
will bring him back to prison for no good reason
at all. Something that strikes me about a lot of
(31:36):
these men who have been convicted based on hair comparison evidence,
like Drew Whitley and Kirk Odom, is that many of
them have shaved their heads after they're released. I can't
help but to wonder if it's because of this fear
that someone will find their hair where it shouldn't be
and the nightmare will begin all over again. After serving
(31:58):
seventeen years for a himy didn't commit, dru was finally released,
but he didn't receive any compensation from the state. So
here's someone that lives a literal nightmare, struggling behind bars
to prove his innocence, and now he has to struggle
to survive on the outside. Right now, fifteen states in
(32:19):
this country don't offer any compensation to axonorees. The thirty
five states that do differ widely in the amounts that
they offer, and it's often difficult to satisfy all of
the procedural requirements to qualify for the money. As you
can imagine, there are always loopholes and the states often
exploit them. Money can't give back the years of someone's
(32:41):
life that they were robbed of, but compensation does help.
It eases an axonore's path forward and healing and living
a more comfortable life. The Innocence Project is fighting to
hold states accountable for compensating wrongfully convicted individuals. Until all
states in act legislatreation to compensate the wrongly convicted, that
(33:02):
fight will continue. The Innocence Project has set up a
fund to support axonorees. The fund is currently expanding to
cover those axonorees who are facing job loss or economic
hardships due to COVID nineteen. You can donate to this
fund by going to Innocence Project dot org slash Axonoree
(33:23):
dash fund dash. You can also support the amazing work
that the n a c d L is doing by
donating to the n A c d L Foundation for
Criminal Justice. You could find out more about that at
n A c d L dot org. Next week, we'll
(33:49):
explore the junk science of shoeprint entire track evidence wrongful conviction.
Junk Science is a production of Lava for Good Podcasts
in association with Signal Company Number one. Thanks to our
executive producer Jason Flom and the team. It's Signal Company
number one executive producer Kevin Wardas and senior producers Karakorn
(34:10):
Haber and Britt Spangler. Our music was composed by Jay Ralph.
You can follow me on Instagram at Dubin dot Josh.
Follow the Wrongful Conviction podcast on Facebook and on Instagram
at Wrongful Conviction and on Twitter at wrong Conviction
Washington, d C. A muggy summer day finally starts to
cool as night falls. Street lights turn on, Crickets chirp,
there's the soft jingle of the tags on a dog caller.
A black poodle walks up someone's porch steps, sniffs around.
The dog leaps back down the stairs when its owner
calls its name. A few hours later, on those same
(00:24):
porch steps, the man who lives there slowly walks up,
and a masked figure walks up behind him. There's a gunshot.
Someone screams. The shooter makes a run for it, ripping
a stocking mass from his face. It lands on a
porch step as he disappears down the street into the night.
(00:46):
You live down the street from where the gunshot went off.
Three days later, you're hanging out with your girlfriend and
your mom's basement, sitting on the couch watching TV. Your
mom is upstairs cleaning up after dinner, and then there's
a knock at the door. You hear someone introduced themselves
as an officer, officers something or other, and damn it,
(01:10):
you think, and your teenage mind you figure he must
be there about the parking ticket you got a few
weeks ago, and didn't bay yet. Your mom's gonna be pissed.
You head upstairs, but they cuff you and take you away.
You're brought down to the station and put in a cell,
and they tell you that you'll be tried for the
(01:31):
murder of your neighbor. The next day you're transferred to
the county jail, and you're beginning to absorb the shock
of it all. The one thing that you can't get
past is the filth. It's just terrible in there, everything
from the bugs to the food, to the living conditions,
and the noise. The noise is unbearable. You can hardly sleep.
(01:55):
You begin to miss out on things. Your family's summer
vacation comes and goes. Six months pass. You would have
had your g D by now. The year slips by,
and then a year turns into a year and a half.
Your nieces and nephews, the ones that you helped raise
or growing up. You've spoken to them a few times,
(02:16):
but they haven't come to visit. Are they thinking that
their uncle may have done this? You miss out on
the final years of being a care free team. It
seems as though everything's moving on without you. Finally, after
two agonizing years, your case goes to trial. You want
(02:36):
to get your life back. You didn't kill anyone. You
were in that same basement all night when someone else
climbed your neighbor steps and ended his life with a
single gunshop blasts of the head. A few weeks ago,
an officer came to your cell and cut some of
your hair. Of course, you willingly let them take it
(02:58):
because you were sure to help prove your innocence. As
you sit in the courtroom at your trial, the prosecutor
says that there was a nylon stocking mass found at
the scene of the crime. An FBI agent takes the
stand for the prosecution and tells the jury, I compare
the defendant's hair to the thirteen hairs found on the mask.
(03:20):
This agent tells the jury that the defendant's hair is
indistinguishable from one of those thirteen hairs. The prosecutor says,
there's one chance, perhaps for all we know, in ten million,
that it could be someone else's hair. This single hair
proves critical because it's the only physical evidence that ties
(03:43):
you to the homicide. You're told the jurys reached a verdict.
The shuffle back into the courtroom, and none of them
will look at you. When you hear the word guilty,
there's the sudden eruption of uncontrolled sobbing, like the turning
on of a spigot. There's the unraveling of your mother
(04:03):
and whales. Not my baby, my baby didn't do it.
Your ants are crying, your relatives are trying to console
each other. There's just a medley of weeping and misery.
You feel like you're going to pass out. The room
is sideways, and then it's upside down, and then you're
all white. All you can hear, all you can see.
(04:25):
Everything turns white, and you go numb. You're sentenced to
twenty years to life and stay prison, and then there
is nothing. Everything goes blank. You do everything you can
to prove your innocence. You write letters, study the law.
(04:48):
Your father comes to busy you just about every single Saturday.
But he dies four years after your arrest. Your mom
dies two years after that, and you can't go to
either of their funerals. You can't help but to think,
did this kill them? My wrongful conviction. You sit in
your cell, numb most days, and you try to recall
(05:11):
little things that will bring some comfort. To smell your
mother's cooking, sitting around, playing cards with your friends, holding
hands with your girlfriend, and your mother's basement watching TV.
You live a lifetime in that prison, thirty three long years.
(05:31):
It takes all of that time for the district attorney
to finally agree to test the DNA contained in the
hair that was found on that stocking mass that dropped
to the steps of that porch. It turns out the
way you knew it would. Your DNA does not match
any of those thirteen hairs. But they do figure out
(05:52):
who one of the hairs belongs to, and it's not
a person. Turns out that one of the hairs they
found on that stock and mask and argue to the
jury was a human hair belonged to that poodle. When
you re enter the world, they say you're free, but
are you really. You went in as an eighteen year
(06:12):
old boy and came out a fifty one year old man,
and you've aged beyond your years. You're fighting an illness
caused by the burden of carrying around your innocence for
your entire adult life. You die at the age of
fifty nine, enjoying only eight free years with what's left
of your family, But your death you're suffering is not
(06:35):
in vain. After you were found to be innocent, the
FBI starts to re examine over three thousand cases where
similar evidence was used. They're looking for other people who,
like you, were wrongfully convicted of crimes they didn't commit,
people whose lives were destroyed by the junk science of
(06:56):
hair comparison analysis. The story you just heard is based
on true events of Sante Treble's life. He was wrongfully
convicted in and exonerated in two thousand twelve. He passed
away in July. This episode is dedicated to him. I'm
(07:26):
Josh Duman, civil rights and criminal defense attorney and innocence
ambassador to the Innocence Project in New York. Even when
examined under a microscope, the similarities that can be observed
between two hairs are open to wide interpretation. In other words,
there are no definitive traits that can prove with any
scientific certainty that a suspect's hair matches a hair found
(07:50):
in a crime scene. Yet hair comparison analysis was still
being used to falsely identify and convict innocent people up
until the year two thousand and Today, there are still
people who are incarcerated that were convicted based on this
false evidence. So how did this evidence get admitted into
(08:11):
courts in the first place. Turns out, hair my Croscoby
was born in the eighteen hundreds, and the methods used
to analyze and compare human hairs haven't changed much since.
(08:31):
In eighteen sixty nine, a man named John Dorsey was
accused of killing his wife by beating her over the
head with a club in his own yard in Massachusetts.
During the trial, two men claim that they had seen
hairs attached to the alleged murder weapon, and that the
hair appeared to be brunette human hair that was the
(08:52):
color of Mr Dorsey's wife's hair. Mr Dorsey was shocked
his wife was brunette, but so were his horses. According
to Mr Dorsey, the club wasn't a murder weapon, it
was just one of many pieces of wood that was
set out by the horse stables. The hair on the
clubs didn't belong to his wife, but was the hair
(09:13):
that had fallen from his horse's tail. But the court
ruled that Mr Dorsey couldn't present this account about the horsehair. Meanwhile,
the testimony from the men claiming that hair was Mr
Dorsey's wife's was permitted. Mr Dorsey was eventually convicted of
killing his wife. This was the first time ACCORD admitted
(09:35):
hair comparison analysis as evidence in our legal system, and
it definitely wouldn't be the last. Over a century later,
animal hair and human hair would again be an issue
and the Sante triple case. That case was just an
example of the overconfidence in overreaching and what it could
(09:59):
do two different individuals. The idea that not only could
they be wrong about linking a hair to a person,
which they can because you can't do that at all,
but that they can't even identify what is human hair
and what isn't. Not only did it occur in that case,
but it continued to occur unchecked. That was just outrageous,
(10:25):
all right. So joining us today is Vanessa Antone and
Vanessa is a member of the National Association of Criminal
Defense Lawyers. I think will refer to them as the
n a c d L. And this is just a wonderful,
wonderful group. Um. I'm a member of the n a
c d L. And it is a policy and advocacy
organization that really is on the ground working for reforms
(10:50):
and improvements in the criminal justice system. You're gonna learn
about a really remarkable project that they have been involved
in with the FBI, and Vanessa is a key member
of this project. And what they are doing is reading
hundreds of transcripts from old cases and cases where defendants
(11:11):
and the accused were convicted and in many cases wrongfully
convicted based on hair comparison analysis. So to start, Vanessa,
hair comparison analysis is also called hair microscopy, and we'll
use these terms interchangeably, but tell us a little bit
about what hair my crosscopy or or hair comparison analysis
(11:33):
is exactly. It's looking at hair under a microscope, as
as you would think from the title. But what a
well trained hair examiner was supposed to be able to
do is look at different characteristics and hair and try
to make an association from those characteristics. They look at
(11:57):
characteristics like the color and the thickness, whether it looks wavy,
if it has what they call scales on the cuticle,
whether it's smooth or bagged. They also look at the
part of the hair that's the medulla, which is the
middle of the hair, and they look at the shape
of that, the thickness, the color. They also look at
(12:20):
the cortex, which is the main part of the hair,
and that gives the hair characteristics like the pigment. And
when they do the examination, they make note of all
these characteristics in like a known sample of hair, and
then they seek to compare that to the evidentiary hair.
So it sounds scientific, I guess in a way. The
(12:40):
examiner takes some hair from the suspect's head and they
know where that's coming from because it's the person that's
accused of the crime right in front of them, sitting
in a jail cell. So they take that hair and
put it in a little bag and label it, and
they take that hair sample compare it to what you
(13:01):
refer to as the evidentiary hair or the unknown sample
that was found at the scene of a crime. And
so they're looking at characteristics of the hair found at
the crime scene and then seeing if the person that
they claim committed this crime has hair that matches these characteristics.
But the problem seems to be that there are so
(13:23):
many different characteristics and variables and hair that matching one
hair to another, and you know, doing that to try
to find out whether it came from the same person
isn't as easy as some might think in reading all
of these transcripts from hair examiners, you know, throughout decades
(13:45):
until two thousand, they would tell you that there's a range,
even in a person's own head of hair. They don't
all look identical. So where does hair my cross copy
really run into trouble? Why isn't it reliable? Microscopic hair
comparison doesn't rely on a chemical analysis or a set
(14:07):
of concrete standards to associate or to make a comparison.
It's what is known as a pattern and matching discipline.
So it's basically eyeballing it. It's a subjective forensic discipline.
In fact, in the words of one of the FBI
hair examiners, it's the most subjective of the forensic disciplines.
(14:30):
As another microscopic hair examiner said, you just, um, you know,
sometimes you get a feeling about a hair and you know,
it just bowls you over and you just look at it.
And so that's why there won't be a database. You
can't make a database of that type of subjective feeling
about hair. Yeah, I get it. I mean you could
make a database of people's subjective feelings about hair, but
(14:53):
it's not going to tell you very much. But it
really begs the question why we're prosecutors using this to
try to get convictions. If it's so subjective and so speculative,
why were they using it at all. Generally they would
start out operating on the you know, the transfer principle
(15:13):
that if your hair falls out and you're in a
location or you're near someone, hair can transfer to another
person or to the place that you're in close proximity to,
So it could give evidence of someone's presence in a
certain location or with a certain person. When that is
one of the few pieces of evidence you have, obviously
(15:36):
you want to pursue that. And a lot of these cases, um,
not all, but a lot of them were in pre
DNA times, so this would be very powerful evidence when
you can't just DNA test something. So what you had
is the hair. But DNA testing could come out in
(15:56):
the nineties, So why wasn't it being used on hair evidence?
Why were prosecutors still an FBI examiners for that matter,
still using this hair comparison analysis. When we think of
DNA testing, that's nuclear DNA testing, And the problem with
hair and why this happened was because unless there was
(16:19):
tissue at the root of the hair. Like if you
yank your hair out and it may or may not
have some tissue at the root. Unless there was tissue
there that could be tested with nuclear DNA, you couldn't
do a DNA test on hair. All you could do
is eyeballowed under a microscope until mitochondrial DNA, you know,
different type of DNA testing allowed testing of the hair
(16:43):
shaft to give a result. So in all those decades
that was not there, that technology wasn't being used, and
it wasn't until around two thousand that even you know,
the FBI lab started using that in all the cases,
and that is when they could actually look at the
(17:03):
hair and say conclusively, no, it wasn't from this individual.
I want to talk about three cases that all occurred
around the Washington, d c. Area. One was Sante Tribble,
(17:25):
who we mentioned earlier, where a dog hair was mistaken
for a human hair. Now, another case was the case
of Donald Eugene Gates. And Donald Gates was accused of
raping and killing a girl in a park. Now, during
his trial, an FBI special agent testified that Donald's hair
was quote microscopically indistinguishable end quote from hair is found
(17:49):
on the victim's body, and based on that that the
hair from the crime scene probably belonged to Donald Gates.
And so Donald was convict did and sentenced to twenty
years to life in prison. And then there's yet a
third case, and that is the case of an eighteen
year old named kirk Odom. Now this one was, you know,
(18:13):
another sort of mind bending example of this junk science
being applied, because you you have Mr Odom just walking
down the street one day. He's on his way to
go see his infant daughter at his house, and a
cops stops him on the street and says, you know,
you look like the guy in this picture. And the
picture was a sketch that had been drawn based on
(18:35):
a description given by a woman that had been attacked,
blindfolded and raped by a stranger with a gun. And
the victim only got a brief look at her attacker,
but the officers drew the sketch based on what she described,
which was basically a young black man. Based on that,
the officer arrests kirk Odom. And you have another exam
(19:00):
uple of an FBI agent testifying at a trial. And
here the agent gets on the stand and says kirk
Odom's hair matches essentially hair found on the victim's nightgown,
and they used the same sort of language that it's
indistinguishable from Kirk's hair. Kirk spent over twenty two years
(19:20):
in prison. So what happens next is mitochondrial DNA testing
finally becomes available, right, that's the DNA testing of hair.
And all three of these men's hair was tested and
what do you know, none of their DNA matched any
of the hairs that were found at the scenes of
(19:40):
these crimes. And at this point, the FBI couldn't hide
behind this anymore. So tell us, Vanessa, what happens next. Well,
I was lucky enough to be working with n A
c DL when um an A c d L joined
in work in a partnership with the FBI, the Department
of Justice, and the Innocence Project to conduct a review
(20:04):
of the FBI Hair Examiner's cases from you know, whenever
they started, when the earliest we could find up to
about two thousand. And that came about for a couple
of reasons, one of which was the National Academy of
Sciences Report on Strengthening Forensic Science, which looked at pattern
and matching disciplines, including specifically hair comparison, and said, you know,
(20:28):
it just doesn't have a sufficient foundation to be used
for identifying people. So the n A c d L
Is working with FBI, and you start going through all
of these old cases. You're reading the transcripts, and these
are trials where hair evidence was used to get a conviction.
So what did you find. Part of the frustration that
(20:50):
the lawyers had and that we all had reading these
transcripts back to back was the continued nature of the
same states that were unscientific, and so we called them
error type one, two and three. And in Layman's terms,
air type one is basically where they're making a one
(21:11):
to one association between a person and a hair, which
can never be done with microscopic hair comparison. So that's
when an examiner either states or implies that the evidentiary
hair can be associated to a specific individual to the
exclusion of all others, and that would include statements indicating
(21:33):
that hair is unique. Sometimes an analogy of a fingerprint
was used in testimony. Well, it's not exactly like a fingerprint,
but it kind of is. And that's why we can
say that this hair came from this person, So that's
that one to one association, and that is absolutely incorrect.
You can't say hair is unique and use it to
(21:55):
associate people. You know, you shouldn't have to say it's
like this, sort's like that. You should just say what
it is, and if what it is isn't enough, then
it shouldn't be used to connect the hair to a person.
That wasn't really the most common type of error or
scientifically invalid statement we saw. It was usually what we
(22:18):
call error to and what I'm talking about. There are
statements like, well, it would be rare if two hairs
that looked this similar came from two different individuals, And
those were the things we were looking for in the review,
and unfortunately found that in the majority, the vast majority
(22:40):
over n of cases where FBI examiners gave testimony, the
conclusions were exaggerated and there were scientifically unsupported statements in
the testimony. Look, I always knew this was bad, but
of the cases, I mean, that's just an insane statistic.
And you know, our listeners really need to remember that
(23:01):
these weren't just any experts coming in to give testimony.
This is the FBI. This is you know, an organization
that has a reputation for having attained higher knowledge, you know,
knowing more than just everyday people. When an FBI examiner
comes in, especially in a state case, great weight is
(23:24):
given to what they say. It is very impressive to
have the FBI show up and explain a discipline and
tell you what something means in their experience. And that's
what happened in some cases. And the FBI was asked
to do hair examination when the local examiners couldn't make
(23:45):
an association, which makes the whole thing even more questionable
because the inquiry should end there. You shouldn't be able
to try to find someone else who will give you
the answer that you want. Also, they found that the
FBI hair examiners kept their identity as law enforcement agents
first and foremost. And they found the instead of acting
(24:08):
like impartial scientists, the FBI lab culture at the time
embraced the agent examiners acting like more like detectives, and
that that approach should have been pulled back. And remember, no,
you're independent. This is scientific. You're not part of the
law enforcement investigative team. You're a scientist. So Vanessa, you
(24:31):
read transcripts from a ton of cases a lot of testimony.
Were there any that really stood out to you where
you sat back and said, Wow, this is really bad.
A couple of things where I thought I could not believe.
This was the case where the examiner said that he
had significant experience, you know, examining pubic hares from people
(24:53):
from Mexico, and therefore he could exclude people from Mexico
from having concier We did the pubic hare in the
case at hand. Obviously that was because the alternate suspects
other than the defendant were from Mexico. So that was
entirely made up. I mean, I can't even there's there's
no point trying to be nice about it. That's not
(25:15):
a thing anybody can ever say, and it was just
made up. You can't say that a hair came from
an individual of a particular racial group. They can look
at the hair and talk about some of the ancestral
origins and some of the classifications into groups at a
huge broad level, which really wouldn't have value and you know,
(25:38):
clime investigation, but they absolutely can't say that it did
or did not come from a person from a certain country. Um,
so that's you know, that's pretty ridiculous. So after you
(26:01):
review the transcripts from a case, and let's say you
determine that you know, an expert or a so called
expert came in and gave testimony and said things that
were just outside the bounds of science. UM, and there
was a conviction. What happened next? What were the next
steps of the review? I seek to assist folks in
(26:24):
finding counsel and um hooking them up with lawyers who
could assist them to pursue any claims they might have.
If that type of evidence was used in their case,
they would do the DNA testing on the hair, or
if no hair could be found after all these years,
because these are old cases, they would do testing on
(26:44):
other biological evidence as long as a chain of custody
could be established. So look, I just have to say, UM,
and if this is a shameless plug, so be it.
The N A C d L is just it's a
remarkable organization because you're not only exposing problems which you
certainly did hear, but it goes that extra step to
(27:05):
helping people that you know, have been the victim of
a wrongful conviction or the victim of you know, testimony
that goes outside the bounds of science and getting them
help and hooking them up with lawyers. So you must, Vanessa,
have had an interesting experience from all these cases. What
is your biggest takeaway from this work? No matter how
(27:29):
much you want a conviction or how much other evidence
you think you have of guilt, it's never appropriate to
admit unsupported science in the idea that using certain techniques
are needed as tools to quote unquote catch the bad
guys um, which is still a conversation that's going on
(27:52):
with forensic science today. That's the fear that law enforcement
won't have the tools they need to catch people or
to convict people. And the appropriate response should be, well,
those tools have to be scientifically valid and they have
to be scientifically sound. So can't this model that the
(28:15):
n A, c, d L and the FBI employed here,
which is re reviewing cases and exposing problems and helping
right these wrongs. Can't this model be applied to other
disciplines of junk science. It just seems so effective and
you're able to help so many people. As a result
of the FBI Hair Review and other movements to make
(28:40):
sure forensic science was more reliable for the court room,
there were plans in the Department of Justice in the
last administration to do similar reviews of other pattern and
matching disciplines, to take a historical look back and see
if in some other disciplines in the FBI lab that
(29:00):
were susceptible to similar errors, if similar errors had occurred,
and like the hair of view to find those and
identify them and provide notification and give a means for
folks to address those um potential scientific overstatements. All right,
So the way you say van s h when you
(29:21):
say there are war plans in the Department of Justice,
um to do this historical look back makes me have
the sinking suspicion that maybe it didn't pan out. What
happened that, along with several other plans, was rolled back
by then Attorney General Sessions. Under the new administration, it
(29:44):
has become a little harder. We have to be extra
vigilant when you're dealing with a situation where plans for
progress were abandoned. So while a lot of progress has
been made, there's a lot to be done. You know,
cases are still litigation, cases still need to be litigated. So, yeah,
(30:07):
the struggle continues. You might be listening to this wondering
what you can do to help. Thanks to the work
that Vanessa is doing with the n A c d L,
many individuals have been exonerated. But being exonerated means moving
from a life of injustice and hardship in prison to
(30:29):
another kind of very difficult life outside of prison. Take
for example, Drew Whitley, in the manager of McDonald's, was
murdered in Pennsylvania. Another McDonald's employee was there when the
crime occurred. The witness could not see the face of
the perpetrator because he was wearing a ski mask, but
he claimed nonetheless that the person that committed the crime
(30:52):
had been Drew Whitley, his neighbor. Investigators found a hair
on a ski mask which was found near the crime scene.
They compared it to Drew's hair and claim that it
matched Drew. Whitley was convicted and sentenced to life in prison.
After fighting for years, Drew was finally able to get
the hairs from the crime scene tested for mitochondrial DNA.
(31:15):
The hairs did not belong to him, and he was
exonerated in two thousand and six. The trauma from his
wrongful conviction remains. He's always looking over his shoulder with
the constant and perhaps justified worry that a police officer
will bring him back to prison for no good reason
at all. Something that strikes me about a lot of
(31:36):
these men who have been convicted based on hair comparison evidence,
like Drew Whitley and Kirk Odom, is that many of
them have shaved their heads after they're released. I can't
help but to wonder if it's because of this fear
that someone will find their hair where it shouldn't be
and the nightmare will begin all over again. After serving
(31:58):
seventeen years for a himy didn't commit, dru was finally released,
but he didn't receive any compensation from the state. So
here's someone that lives a literal nightmare, struggling behind bars
to prove his innocence, and now he has to struggle
to survive on the outside. Right now, fifteen states in
(32:19):
this country don't offer any compensation to axonorees. The thirty
five states that do differ widely in the amounts that
they offer, and it's often difficult to satisfy all of
the procedural requirements to qualify for the money. As you
can imagine, there are always loopholes and the states often
exploit them. Money can't give back the years of someone's
(32:41):
life that they were robbed of, but compensation does help.
It eases an axonore's path forward and healing and living
a more comfortable life. The Innocence Project is fighting to
hold states accountable for compensating wrongfully convicted individuals. Until all
states in act legislatreation to compensate the wrongly convicted, that
(33:02):
fight will continue. The Innocence Project has set up a
fund to support axonorees. The fund is currently expanding to
cover those axonorees who are facing job loss or economic
hardships due to COVID nineteen. You can donate to this
fund by going to Innocence Project dot org slash Axonoree
(33:23):
dash fund dash. You can also support the amazing work
that the n a c d L is doing by
donating to the n A c d L Foundation for
Criminal Justice. You could find out more about that at
n A c d L dot org. Next week, we'll
(33:49):
explore the junk science of shoeprint entire track evidence wrongful conviction.
Junk Science is a production of Lava for Good Podcasts
in association with Signal Company Number one. Thanks to our
executive producer Jason Flom and the team. It's Signal Company
number one executive producer Kevin Wardas and senior producers Karakorn
(34:10):
Haber and Britt Spangler. Our music was composed by Jay Ralph.
You can follow me on Instagram at Dubin dot Josh.
Follow the Wrongful Conviction podcast on Facebook and on Instagram
at Wrongful Conviction and on Twitter at wrong Conviction
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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