Tuesday, May 2, 2017

Richard Beranek; Wisconsin. FBI flawed hair matching evidence. Dee J. Hall. Wisconsin Center for Investigation. Very disturbing case. (One of far roo many Wisconsin flawed hair evidence cases); Hearing set for May 9); Photo caption: "Retired Dane County Circuit Judge Daniel Moeser hears arguments on Feb. 14, 2017 in the case of Richard Beranek, who is seeking a new trial after DNA testing excluded him from key evidence in a 1987 sexual assault. The FBI also has acknowledged its analysis of the hair that had purportedly linked Beranek to the attack was scientifically invalid. He is serving a 243-year sentence."

STORY: "Innocent  people convicted from flawed hair evidence: FBI admits error in 90% of hair and fiber cases, including 13 in Wisconsin," by Dee J. Hall,  Wisconsin Center for Investigation. Published by The USA Today Network on April 30, 2017.

PHOTO CAPTION:  "Retired Dane County Circuit Judge Daniel Moeser hears arguments on Feb. 14, 2017 in the case of Richard Beranek, who is seeking a new trial after DNA testing excluded him from key evidence in a 1987 sexual assault. The FBI also has acknowledged its analysis of the hair that had purportedly linked Beranek to the attack was scientifically invalid. He is serving a 243-year sentence."

PHOTO CAPTION: "Richard Beranek sits with his attorneys, from left, Jarrett Adams, Keith Findley and Bryce Benjet in Dane County Circuit Court on Feb. 14, 2017. At right is the prosecution team, Assistant Attorney General Robert Kaiser and Assistant Dane County District Attorney Erin Hanson. Beranek, who has been in prison for 27 years, is seeking a new trial after DNA testing excluded him as the source of hair and semen found at the scene of a 1987 sexual assault."

PHOTO CAPTION: "FBI whistleblower Frederic Whitehurst is credited with exposing fraud and misconduct at the FBI laboratory, including unscientific hair analysis. Thousands of cases are now under review nationwide in large part because of Whitehurst, including at least 19 in Wisconsin. He called the FBI’s use of false and misleading hair analysis a “national tragedy.”

PHOTO CAPTION: "Prosecutor Robert Kaiser is seen during a hearing in Dane County Circuit Court on Feb. 14, 2017. Richard Beranek, who was convicted in 1990 of sexually assaulting a woman in her Stoughton, Wis.-area home, is arguing that new DNA testing proves his innocence. Those findings contradict FBI hair analysis that the agency now admits was not scientific."

PHOTO CAPTION: "Skip Palenik, founder of Microtrace LLC of Elgin, Illinois, testified at a recent evidentiary hearing that Oakes’ statements in the Beranek case violated professional standards in place even back then. Palenik has more than 40 years’ experience in the field of finding, analyzing and comparing materials, including those found in minute amounts."

GIST: "The 28-year-old mother of two was raped by a stranger in her home in rural Stoughton. Before the attack, the woman was followed around town and received menacing, sexually charged phone calls from an unknown man, whom she suspected lived nearby. Nearly two years after the 1987 rape, Richard Beranek — who was living 130 miles away and had no known ties to the community — surfaced as a possible suspect. Chippewa County law enforcement officials thought Beranek, facing sexual assault charges there, resembled a composite sketch of the suspect in the Stoughton rape. The woman picked Beranek out of a group of photos, telling police that she was almost certain he was the attacker. She then picked Beranek out of a live lineup. Sealing Beranek’s fate, FBI analyst Wayne Oakes concluded that a hair found in underwear left by the rapist in the woman’s bed was a “match” to Beranek’s hair “to a high degree of probability.” At the time, however, the FBI knew microscopic hair comparison had limitations. Hair that looks identical, even under a high-powered microscope, could come from a number of individuals. That did not stop Oakes.  Even though multiple witnesses testified Beranek was hundreds of miles away at the time of the crime, the jury found him guilty on nine felony counts. Dane County Circuit Judge Daniel Moeser sentenced him as a repeat offender to 243 years in prison. While Beranek remains imprisoned, the way the FBI used microscopic hair comparison has been discredited in hundreds of cases nationwide, including Beranek’s. DNA testing has now excluded Beranek, 58, as the source of the hairs found in the perpetrator’s underwear and of sperm from the victim’s underwear, according to a motion for a new trial filed in 2016 by attorneys with the New York-based Innocence Project and the Wisconsin Innocence Project. The Beranek case is among an estimated 3,000 slated for re-examination in which FBI hair or fiber analysis was used before 2000 when DNA testing became widely available. So far, 1,600 have been reviewed, according to Vanessa Antoun, an attorney with the National Association of Criminal Defense Lawyers, who is participating in the effort. The ongoing review has found problems in more than 90 percent of the cases, including 13 in Wisconsin. The agency’s misuse of hair evidence to convict people is “a national tragedy” and a violation of human rights, said Frederic Whitehurst, the whistleblower who revealed scientific misconduct including flawed hair analysis at the FBI laboratory in the 1990s. “We go into court with unvalidated science,” Whitehurst said. “We know it’s unvalidated science. The world of science is saying this is not valid, and we actually use this pseudo science against citizens of this nation.” Testimony powerful - and wrong: Oakes had told jurors that “rarely, extremely rarely” was he unable to tell two hairs apart and that the suspect’s hair and Beranek’s were “microscopically the same.” He claimed he had examined “billions” of hairs. (To reach even 1 billion, Oakes would have needed to analyze 322,321 hairs a day, 365 days a year during his eight and a half years in the FBI hairs and fibers unit.) Further bolstering his case, Oakes said a more experienced analyst at the FBI, Michael Malone — whom he described as having near flawless ability to compare hair samples — had confirmed the match. Six witnesses, however, placed Beranek 600 miles away at the time of the rape, at the home of his sister and her husband in Devils Lake, North Dakota. Four Beranek family members and two non-family members confirmed he was in North Dakota. A food stamp application introduced at trial showed his sister had listed Beranek as a member of her household around the time the rape occurred. Dane County Assistant District Attorney Robert Kaiser had the powerful FBI testimony on his side, however. He drove home its importance during closing arguments in the 1990 trial “What an incredible coincidence,” Kaiser told the jurors. “Somehow (the victim) managed to pick out of a photo array someone in 10,000 people who had a hair that matched a hair that happened to be in her house from some unknown place.”
In 2015, the FBI acknowledged that the Oakes testimony in Beranek’s case included “erroneous statements” in which he said or implied that the hair found at the scene “could be associated with a specific individual to the exclusion of all others.” Those statements “exceeded the limits of science,” the FBI now says. Skip Palinek of Microtrace LLC testified Feb. 14, 2017 at the evidentiary hearing in Dane County Circuit Court on flaws in microscopic hair evidence in the sexual assault case against Richard Beranek, who has served 27 years in prison. Beranek’s case is one of hundreds in which the FBI acknowledges its analysts overstated the reliability of hair analysis. "You can’t individualize to a certain person by microscopy. We thought you could, but we can’t. Absent DNA testing, hair is not unique enough to be tied to one person, he said. Two strands of hair that appear identical could be from the same person, Palenik said. Or just as likely, they could be from two people “with the same type of hair,” he said. “You can’t individualize to a certain person by microscopy,” Palenik said. “We thought you could, but we can’t.”.........Decision pending in Beranek case: Kaiser, who represented the state in the Armstrong appeal, now works for the state Department of Justice as an assistant attorney general. He is leading the prosecution’s effort to block a new trial for Beranek. Moeser, the judge sentenced Beranek 27 years ago, is retired and is hearing the appeal as a reserve judge. At the start of a two and a half day evidentiary hearing in February, Wisconsin Innocence Project co-director Keith Findley said the defense was “a little puzzled” by the state’s opposition to a new trial, given the strength of the new DNA evidence. Moeser will hear final arguments about whether Beranek’s conviction should be overturned on May 9.

The entire story can be found at:


PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog;