From the President: Exaggerated Evidence Yields New Opportunities for Cooperation and Collaboration

NACDL is committed to alerting the defense bar to the errors made in statements by FBI examiners concerning microscopic hair analysis. It is crucial to identify cases and gather transcripts so that adversely affected defendants have an opportunity to complain and have the assistance of counsel.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

The odds were 10-million-to-one, the prosecution said, against hair strands found at the scene of a 1978 murder of a Washington, D.C., taxi driver belonging to anyone but Santae Tribble. Based largely on this compelling statistic, drawn from the testimony of an analyst with the Federal Bureau of Investigation, Mr. Tribble, 17 at the time, was convicted of the crime and sentenced to 20 years to life. But the hair did not belong to Mr. Tribble.1 

 

[A] court-ordered DNA testing [in January 2012] by a private lab confirmed that none of the 13 hairs … shared Tribble’s genetic profile or that of his alleged accomplice, Cleveland Wright. The lab also found that the 13 hairs came from three human sources … except for one — which came from a dog — facts over which the FBI-trained examiners disagreed or missed outright.2  

 

 

By now, all NACDL members have either heard or read something about the unspeakable errors committed for decades by FBI hair examiners through their reports and testimony.3 

In April, NACDL reported that the FBI had concluded that the examiners’ testimony in at least 90 percent of trial transcripts the Bureau analyzed — as part of its Microscopic Hair Comparison Analysis Review — contained erroneous statements.4 Twenty-six of 28 FBI agents/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements. The review focuses on cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at the FBI. The DOJ, FBI, Innocence Project, and NACDL have been working jointly on this review. All parties share the same goal of ensuring the integrity of the justice system.

There was widespread, systematic, and institutionalized errors committed of breathtaking proportions. The full extent of consequential errors, however, has not and will not be determined by this joint review because it is only looking at cases in which FBI examiners performed the analysis and later testified. It does not include cases in which state laboratory examiners were involved, and yet many state examiners were trained at courses taught by the FBI.

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NACDL is committed to assisting the entire defense bar, and in particular our state-affiliated defense associations and other partners, in an education and notification campaign to alert defense counsel to the errors made in statements by FBI examiners concerning microscopic hair analysis. It is crucial that we identify these cases as well as gather reports, transcripts, and curricula vitae in order to assure that adversely affected defendants have an opportunity to complain and have the assistance of counsel.

The Philadelphia Inquirer interviewed me and others about the potential impact these findings will have on state cases. The article made the front page,5 and the revelation has attracted the interest of judges and lawyers.

As important as it is to complete the review of microscopic hair analysis cases involving FBI examiners, it is vitally important that we seek a similar review of state cases. Accordingly, we have organized a conference call of interested parties in Pennsylvania — including the Pennsylvania Association of Criminal Defense Lawyers, the Pennsylvania Innocence Project, NACDL, and law professors — to develop a plan to educate and notify the defense community to identify the state court cases that included hair microscopy testimony or reports. A plan has been formulated and implemented. We are asking the members of the defense bar, in various ways, to identify cases they handled or their colleagues handled. Defenders have already started to respond.

NACDL, in a letter from Executive Director Norman L. Reimer, notified the executive director of every state affiliate that we stand ready to assist in any way we can to help state associations and their membership. I urge you to seek a review and audit process in your state. Some states, including New York, Texas, North Carolina, and Massachusetts, have begun the process. Contact your affiliate leadership and staff to discuss starting a state educational campaign to uncover these flawed convictions. In this regard, NACDL possesses a wealth of knowledge, has shared it with interested parties in Pennsylvania, and looks forward to continuing to provide assistance nationally as requested.

Identifying cases in which examiners presented scientifically flawed microscopic hair analysis testimony will further our common mission of ensuring justice. Before us stands a great opportunity to help so many, and to do so through cooperation and collaboration.

NACDL, Amen!

Notes

  1. Editorial, Junk Science at the FBI, N.Y. Times, April 27, 2015, at A18; http://www.nytimes.com/2015/04/27/opinion/junk-science-at-the-fbi.html?_r=0.
  2. Spencer S. Hsu, Santae Tribble Cleared in 1978 Murder Based on DNA Hair Test, Wash. Post, Dec. 14, 2012, available at http://www.washingtonpost.com/local/crime/dc-judge-exonerates-santae-tribble-of-1978-murder-based-on-dna-hair-test/2012/12/14/da71ce00-d02c-11e1-b630-190a983a2e0d_story.html.
  3. Norman L. Reimer, The Hair Microscopy Review Project: An Historic Breakthrough for Law Enforcement and a Daunting Challenge for the Defense Bar, The Champion, July 2013 at 16.
  4. Press Release, National Association of Criminal Defense Lawyers, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review (April 20, 2015) (http://www.nacdl.org /News.aspx?id=20507).
  5. Joseph A. Slobodzian, FBI Hair Errors Call Convictions Into Question, Inquirer (Philadelphia), May 13, 2015; http://articles.philly.com/2015-05-13/news/ 62087874_1_hair-analysis-hair-analysis-fbi.
About the Author

Theodore “Ted” Simon is an attorney in private practice in Philadelphia, Pa., where he has based a local, national, state, federal, and international trial and appellate practice representing individuals and corporations. Simon has obtained reversals in the U.S. Supreme Court and in the Pennsylvania Supreme Court. He is a leading authority on the representation of Americans abroad, extradition, and international prisoner transfer. Simon is a Trustee of the Foundation for Criminal Justice. He is also a member of the Board of Directors of Philadelphia’s Jenkins Law Library, America’s first law library.

Theodore Simon
Law Offices of Theodore Simon
1600 Market Street, 14th Floor
Philadelphia, PA 19103
215-563-5550
Fax 215-563-8798
TSimonEsq1@aol.com