Happy Scribe Logo

Transcript

Proofread by 1 reader
Proofread
[00:00:00]

Washington, D.C., a muggy summer day finally starts to cool as night falls street lights turn on, crickets chirp. The soft jingle of the tags on a dog collar. Black poodle walks up someone's porch, steps, slips around the dog, leaps back down the stairs when its owner calls its name. A few hours later, on those same porch steps, the man who lives there slowly walks up and a masked figure walks up behind him. There's a gunshot.

[00:00:32]

Someone screams, the shooter makes a run for it, ripping a stocking mask from his face, it lands on a porch step as he disappears down the street into the night. You live down the street from where the gunshot went off. Three days later, you're hanging out with your girlfriend in 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 introduce themselves as an officer, officers, something or other, and, dammit, you think in your teenage mind, you figure he must be there about the parking ticket you got a few weeks ago and didn't pay yet.

[00:01:18]

Your mom's going to 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 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.

[00:01:50]

The noise is unbearable. You can hardly sleep. You begin to miss out on things. Your family summer vacation comes and goes. Six months pass. You would have had your GED by now. A year slips by and then a year turns into a year and a half. Your nieces and nephews, the ones that you helped raise, are growing up. You spoken to them a few times, but they haven't come to visit. Are they thinking that their uncle may have done this?

[00:02:21]

You miss out on the final years of being a carefree teen, it seems as though everything's moving on without you. Finally, after two agonizing years, your case goes to trial. You want to get your life back, you didn't kill anyone, you were in that same basement all night when someone else climbed your neighbor's steps and ended his life with a single gunshot blast to the head. A few weeks ago, an officer came to your cell and cut some of your hair.

[00:02:56]

Of course, you willingly let them take it because you were sure it would help prove your innocence. As you sit in the courtroom at your trial, the prosecutor says that there was a nylon stocking mask 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 13 hairs found on the mask. The agent tells the jury that the defendant's hair is indistinguishable from one of those 13 hairs.

[00:03:27]

The prosecutor says there is one chance, perhaps for all we know in 10 million, that it could be someone else's hair, this single hair proves critical because it's the only physical evidence that ties you to the homicide. You're told the jurors reached a verdict. 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. The turning on of a spigot. Was the unraveling of your mother and Wales, not my baby, my baby didn't do it.

[00:04:08]

Friends 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 sideways and then it's upside down and then you're all white. Or you can hear or you can see everything turns white. Sentenced to 20 years to life in state prison. And then there is nothing. Everything goes blank. You do everything you can to prove your innocence. You write letters, study the law, your father comes to visit you just about every single Saturday, but he dies four years after your arrest.

[00:04:55]

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 little things that will bring some comfort, the smell your mother's cooking, sitting around playing cards with your friends, holding hands with your girlfriend in your mother's basement, watching TV, you live a lifetime in that prison, 33 long years.

[00:05:31]

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 mask 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 13 hairs, but they do figure out who one of the hairs belongs to. And it's not a person. Turns out that one of the hairs they found on that stocking mask and argued to the jury was a human hair belonged to that poodle.

[00:06:06]

When you reenter the world, they say you're free, but are you really? You went in as an 18 year old boy and came out a 51 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.

[00:06:26]

You die at the age of 59, enjoying only eight free years with what's left of your family, but your death, your suffering is not in vain after you are found to be innocent. The FBI starts to re-examine over 3000 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 hair comparison analysis.

[00:07:02]

The story you just heard is based on true events of Santé Tribbles life, he was wrongfully convicted in 1978 and exonerated in 2012. He passed away in July of twenty twenty.

[00:07:18]

This episode is dedicated to him.

[00:07:25]

I'm Josh Dubin, civil rights and criminal defense attorney and innocense 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.

[00:09:09]

In 1869, a man named John Dorsey was accused of killing his wife by beating her over the head with a club in his own yard, Massachusetts. During the trial, two men claimed that they had seen hairs attached to the alleged murder weapon and that the hair appeared to be Brunete human hair.

[00:09:29]

That was the color of Mr. Dorseys wife's hair. Mr. Dorsey was shocked, his wife was brunette with silver, his horses, according to Mr. Dorsey, the club wasn't a murder weapon. It was just one of many pieces of wood that were set out by the horse stables. The hair on the club's didn't belong to his wife, but was a hair that had fallen from his horse's tail. But the court ruled that Mr. Dorsey couldn't present this account about the horse hair.

[00:09:58]

Meanwhile, the testimony from the men claiming the pair was Mr. Dorseys wife's was permitted. Mr. Dorsey was eventually convicted of killing his wife. This was the first time a court admitted 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 Santé Tribble case. That case was just an example of the overconfidence and overreaching and what it could do to 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.

[00:10:51]

Not only did it occur in that case, but it continued to occur unchecked. That was just outrageous. All right. So joining us today is Vanessa and Tony. And Vanessa is a member of the National Association of Criminal Defense Lawyers, I think will refer to them as the NACDL. And this is just a wonderful, wonderful group. I'm a member of the NACDL and it is a policy and advocacy organization that really is on the ground working for reforms and improvements in the criminal justice system.

[00:11:30]

You're going to 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 and the accused were convicted and in many cases wrongfully convicted based on their comparison analysis. So to start, Vanessa, hair comparison analysis is also called hair microscopy and will use these terms interchangeably.

[00:12:05]

But tell us a little bit about what hair, microscopy or hair comparison analysis is exactly.

[00:12:12]

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 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 ragged. They also look at the part of the hair. That's the medulla, which is the middle of the hair.

[00:12:51]

And they look at the shape of that, the thickness, the color. They also look at 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.

[00:13:14]

So it sounds scientific. I guess in a way, the 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 and compare it to what you refer to as the evidentiary hair or the unknown sample that was found at the scene of a crime.

[00:13:44]

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 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. And reading all of these transcripts from hair examiners throughout decades until 2000, they would tell you that there's a range even in a person's own head of hair.

[00:14:29]

They don't all look identical.

[00:14:32]

So where does hair microscopy really run into trouble? Why isn't it reliable?

[00:14:37]

Microscopic hair comparison doesn't rely on a chemical analysis or a set 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. As another microscopic hair examiner said, you just you know, sometimes you get a feeling about a hair and it just blows you over and you just look at it.

[00:15:18]

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.

[00:15:25]

Yeah, I get it. I mean, you could make a database of people's subjective feelings about hair, but it's not going to tell you very much.

[00:15:32]

But it really begs the question, why were prosecutors using this to try to get convictions? If it's so subjective and so speculative, why were they using it at all?

[00:15:46]

Generally, they would start out operating on the the transfer principle that if your hair falls out in you or in a location or you're near, someone here 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, you want to pursue that. And a lot of these cases, not all, but a lot of them were in pre DNA times.

[00:16:23]

So this would be very powerful evidence when you can't just DNA test something.

[00:16:29]

So what you had is the hair, but DNA testing could come out in the 90s. So why wasn't it being used on hair evidence? Why were prosecutors still and FBI examiners for that matter, still using this hair comparison analysis?

[00:16:46]

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 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 or you could do is eyeball it under a microscope until mitochondrial DNA, a different type of DNA testing, allowed testing of the hair shaft to give a result.

[00:17:22]

So in all those decades that was not there, that technology wasn't being used. And it wasn't until around 2000 that even the FBI lab started using that and all the cases. And that is when they could actually look at the hair and say conclusively no it wasn't from this individual.

[00:17:55]

I want to talk about three cases that all occurred around the Washington, D.C. area. One was Santé Tribble, who we mentioned earlier, where a dog hair was mistaken for a human hair.

[00:18:06]

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, unquote, from hairs found 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 convicted and sentenced to 20 years to life in prison.

[00:18:41]

And then there is yet a third case. And that is the case of an 18 year old named Kirk Odom. Now, this one was, you know, another sort of mind bending example of this junk science being applied, because here you have Mr. Odom just walking down the street.

[00:18:59]

One day he's on his way to go see his infant daughter at his house and a cop 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 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.

[00:19:31]

Based on that, the officer arrest Kirk Odom. And you have another example 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 use the same sort of language that is indistinguishable from Kirk's hair. Kirk spent over twenty two years in prison.

[00:19:59]

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 these crimes.

[00:20:19]

And at this point, the FBI couldn't hide behind this anymore. So tell us, Vanessa, what happens next?

[00:20:25]

Well, I was lucky enough to be working with NACDL when NACDL joined in work in a partnership with the FBI, the Department of Justice and the Innocence Project to conduct a review of the FBI hair examiners cases from whenever they started, when the earliest we could find up to about two thousand. And that came about for a couple 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, it just doesn't have a sufficient foundation to be used for identifying people.

[00:21:11]

So the NACDL was working with the 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?

[00:21:25]

Part of the frustration that the lawyers had and that we all had reading these transcripts back to back was the continued nature of the same statements that were unscientific. And so we called them hair type one, two and three. And in layman's terms, hair type one is basically where they're making a one 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.

[00:22:08]

And that would include statements indicating 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 associate people. You know, you shouldn't have to say it's like this or it's like that.

[00:22:36]

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 call error, too. And what I'm talking about, there are statements like, well, it would be rare if two hairs that look this similar came from two different individuals. And those were the things we were looking for in the review.

[00:23:11]

And unfortunately found that in the majority, the vast majority, over 90 percent of cases where FBI examiners gave testimony, the conclusions were exaggerated and there were scientifically unsupported statements in the testimony.

[00:23:28]

Look, I always knew this was bad, but 90 percent of the cases, I mean, that's just an insane statistic. And, you know, our listeners really need to remember that 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.

[00:23:54]

When an FBI examiner comes in, especially in a state case, great weight is 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 the FBI was asked to do hair examination when the local examiners couldn't make 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.

[00:24:35]

Also, they found that the FBI had examiners kept their identity as law enforcement agents first and foremost, and they found that instead of acting like impartial scientists, the FBI lab culture at the time embraced the agent examiners acting like more like detectives that approach should have been pulled back and remembered. No, you're independent. This is scientific. You're not part of the law enforcement investigative team. You're a scientist.

[00:25:08]

You read transcripts from a ton of cases, a lot of testimony.

[00:25:12]

Were there any that really stood out to you where you sat back and said, wow, this is really bad?

[00:25:19]

A couple of things where I thought I could not believe this was the case where the examiner said that he had significant experience examining pubic hairs from people from Mexico and therefore he could exclude people from Mexico from having contributed the pubic hair in the case at hand. Obviously, that was because the ultimate 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.

[00:25:52]

That's not 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 in your investigation. But they absolutely can't say that it did or did not come from a person from a certain country. So that. You know, that's pretty ridiculous.

[00:27:17]

So after you 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 and there was a conviction. What happened next? What were the next steps of the review?

[00:27:37]

I seek to assist folks in finding counsel and 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 other biological evidence as long as a chain of custody could be established.

[00:28:06]

So, look, I just have to say, and if this is a shameless plug, so be it. The NACDL is just it's a remarkable organization because you're not only exposing problems, which you certainly did here, but it goes that extra step to 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.

[00:28:35]

So you must, Vanessa, have had an interesting experience from all these cases.

[00:28:41]

What is your biggest takeaway from this work?

[00:28:44]

No matter how 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, which is still a conversation that's going on 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.

[00:29:29]

So can't this model that the NACDL and the FBI employed here, which is we'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.

[00:29:49]

As a result of the FBI hair review and other movements to make sure forensic science was more reliable for the courtroom, 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 were susceptible to similar errors, if similar errors had occurred. And like the hair of you to find those and identify them and provide notification and give a means for folks to address those potential scientific overstatements.

[00:30:35]

All right. So the way you say that, Vanessa, when you say there were plans in the Department of Justice to do this historical look back makes me have the sneaking suspicion that maybe it didn't pan out. What happened??

[00:30:49]

That, along with several other plans, was rolled back by the Attorney General Sessions, under the new administration, it 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. Cases are still litigation. Cases still need to be litigated. So, yeah, the struggle continues.

[00:31:30]

You might be listening to this, wondering what you can do to help. Thanks to the work that Vanessa's doing with the NACDL, many individuals have been exonerated.

[00:31:40]

But being exonerated means moving from a life of injustice and hardship in prison to another kind of very difficult life outside of prison. Take, for example, Drew Whitley in 1989, 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 had been Drew Whitley, his neighbor.

[00:32:11]

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.

[00:32:26]

Drew was finally able to get the hairs from the crime scene tested for mitochondrial DNA. The hairs did not belong to him, and he was exonerated in 2006. 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.

[00:32:51]

Something that strikes me about a lot of 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 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 17 years for a crime he didn't commit, Touru was finally released, but he didn't receive any compensation from the state.

[00:33:23]

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.

[00:33:33]

Right now, 15 states in this country don't offer any compensation to exonerates 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.

[00:33:50]

As you can imagine, there are always loopholes and the states often exploit them. Money can't give back the years of someone's life that they were robbed of, but compensation does help. It eases an exonerated path forward in healing and living a more comfortable life. The Innocence Project is fighting to hold states accountable for compensating wrongfully convicted individuals until all states enact legislation to compensate the wrongly convicted. That fight will continue. The Innocence Project has set up a fund to support exonerates, the fund is currently expanding to cover those exonerated who are facing job loss or economic hardships due to covid-19.

[00:34:33]

You can donate to this fund by going to Innocence Project. Doug Slashings Exonerated Dash Fund Dash 2020.

[00:34:43]

You can also support the amazing work that the NACDL is doing by donating to the NACDL Foundation for Criminal Justice. You could find out more about that at NACDL, Doug.

[00:35:04]

Next week, we'll explore the junk science of shoe print and tire track evidence, wrongful conviction junk science is a production of Laveau for good podcasts in association with Signal Company No. One prick's, thanks to our executive producer Jason Flom and the team of Signal Company No.

[00:35:22]

One executive producer, Kevin Mortise and senior producers Capricorn Habour and Brett Spangler.

[00:35:28]

Our music was composed by Jay Ralfe.

[00:35:31]

You can follow me on Instagram at Duban. Josh, follow the wrongful conviction podcast on Facebook and on Instagram at wrongful conviction and on Twitter at wrongful conviction.