Dennis Butler: District of Columbia: From our 'enough to make one weep' department: As Reporter Tim Cushing reports in Techdirt: "After 48 Years, DC Appeals Court Overturns Murder Conviction Based On FBI's Garbage 'Hair Match' Evidence."..."The DC Appeals Court has just overturned a conviction based on faulty hair match analysis. It comes nearly fifty years after the conviction, meaning the government exchanged bad testimony for most of a person's life." (Link to pdf of the appeal court decision. HL):

PASSAGE OF THE DAY: "The DC Appeals Court has just overturned a conviction based on faulty hair match analysis. It comes nearly fifty years after the conviction, meaning the government exchanged bad testimony for most of a person's life. The opening of the decision [PDF] lays out the facts concisely. Almost fifty years ago, appellant Dennis Butler was convicted of murder. At his trial, an FBI forensic expert testified that hairs found on the victim were microscopically identical to Butler’s hair. The government recently acknowledged, though, that hair evidence of the kind introduced against Butler was false and exceeded the limits of science, and that the prosecution knew or should have known as much at the time of his trial. Butler has spent decades in prison because the FBI spent decades saying having a microscope was the same thing as being a scientist. The court says it's not even close… and it's a statement made using the FBI's own findings. Hair microscopy called for forensic examiners to conduct side-by-side, microscopic comparisons of hair samples in an effort to ascertain whether hairs from a crime scene matched hairs from a suspect. The government used ostensible matches at trial as scientific evidence linking defendants to crimes. There was, however, a significant problem with that field of analysis: science had not validated its foundational premises. Existing studies failed to support a trained examiner’s ability to identify a “match” based on any objective system of visual hair comparison or to validly estimate the frequency of hair characteristics (and therefore of matches) in the general population. This lack of scientific confirmation didn't stop the FBI from using hair matches in court, even after it knew the "science" behind it was lacking. It wasn't until the National Academy of Sciences called the FBI out in its report on hair analysis that the FBI began reining in its expert witnesses. Following this public fisking by actual scientists, the government reviewed thousands of convictions obtained with hair analysis prior to the year 2000. Butler's was one of them. So, the question is: did the prosecution rely on the FBI's faulty testimony to secure this conviction? The answer is "yes.""

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PASSAGE TWO OF THE DAY: "The FBI convinced itself it could craft new forensic techniques out of thin air and deploy them without making sure they actually had some scientific basis. This is the end result of this hubris -- acts that took decades to correct and even longer to result in actual justice, rather than unearned convictions. Some of the people screwed by the FBI's junk science are already dead. Others, like Butler, may finally see their lives given back to them -- but with hardly any life left to live."

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STORY: "After 48 Years, DC Appeals Court Overturns Murder Conviction Based On FBI's Garbage 'Hair Match' Evidence," by Reporter Tim Cushing,published by Techdirt on April 22, 2020.

GIST: "For decades, the FBI pushed junk science on the courts, resulting in the wrongful convictions of an untold number of people. It wasn't until 2009 that it started trying to undo the damage. And even then, the FBI wasn't 100% sure it shouldn't hold onto to at least someof its favorite junk, even if it had been repeatedly shown there was very little verifiable science behind their expert witnesses' assertions.

All that seemed to matter were the convictions. Appealing a conviction is hard work -- something that takes years to do and requires the assistance of experienced lawyers. The damage has been done and the FBI's belated recognition of its contribution to the farce that is our criminal justice system isn't going to give back years of wrongfully-obtained lives.

By the FBI's own admission, "nearly every" forensic expert deployed to criminal trials gave flawed testimony that overstated the certainty of their findings. This included experts testifying about fingerprints, DNA, and hair analysis, not just those discussing complete garbage like bite-mark matching or asserting mass-produced clothing is as unique as someone's fingerprints.

The DC Appeals Court has just overturned a conviction based on faulty hair match analysis. It comes nearly fifty years after the conviction, meaning the government exchanged bad testimony for most of a person's life. The opening of the decision [PDF] lays out the facts concisely.

Almost fifty years ago, appellant Dennis Butler was convicted of murder. At his trial, an FBI forensic expert testified that hairs found on the victim were microscopically identical to Butler’s hair. The government recently acknowledged, though, that hair evidence of the kind introduced against Butler was false and exceeded the limits of science, and that the prosecution knew or should have known as much at the time of his trial.

Butler has spent decades in prison because the FBI spent decades saying having a microscope was the same thing as being a scientist. The court says it's not even close… and it's a statement made using the FBI's own findings.

Hair microscopy called for forensic examiners to conduct side-by-side, microscopic comparisons of hair samples in an effort to ascertain whether hairs from a crime scene matched hairs from a suspect. The government used ostensible matches at trial as scientific evidence linking defendants to crimes.

There was, however, a significant problem with that field of analysis: science had not validated its foundational premises. Existing studies failed to support a trained examiner’s ability to identify a “match” based on any objective system of visual hair comparison or to validly estimate the frequency of hair characteristics (and therefore of matches) in the general population.

This lack of scientific confirmation didn't stop the FBI from using hair matches in court, even after it knew the "science" behind it was lacking. It wasn't until the National Academy of Sciences called the FBI out in its report on hair analysis that the FBI began reining in its expert witnesses. Following this public fisking by actual scientists, the government reviewed thousands of convictions obtained with hair analysis prior to the year 2000. Butler's was one of them.

So, the question is: did the prosecution rely on the FBI's faulty testimony to secure this conviction? The answer is "yes." The government's evidence (beyond the supposed hair match) were two unreliable witnesses whose stories changed frequently, some paint chips (from the recently-painted apartment Butler had visited while it was being painted), and some eyewitnesses who put Butler near the crime scene (with the prosecution dodging the fact that Butler was often in the area where the murder took place for non-murderous reasons).

Here's the prosecutor during closing arguments, discussing the expert witness' testimony.

He said when he compared the hairs that were found on the victim’s clothing with the defendant’s hairs that were taken by [the detective] from him at the infirmary, when he compared those two, what were they? They were the same in every microscopic detail, the same. I said, how often . . . does it happen? You can’t be positive, yes, but how often does it happen that two people’s hair, two different people, are so similar and so alike that you would be unable to tell? Out of 10,000 examinations, he said he recalls it happening approximately four times.

And again:

You have the FBI report saying that this man’s hair compared with the hairs found on the body of the dead man. They are the same in every microscopic characteristic—every one. You heard the sixteen possible combinations, lack thereof, etc. Every one matched.

This influenced the jurors, the Appeals Court says. The jurors could have found the other evidence circumstantial, at best. But the repeated (incorrect) assertion that hair match analysis could positively identify Butler as the murderer most likely swayed the jury, resulting in a conviction that resulted in Butler being behind bars since late 1970.

We found it satisfied in Ausby, and we do likewise here. And we thus conclude that the government’s presentation against Butler of evidence that it knew (or should have known) was false denied him a fair trial.

For the foregoing reasons, we reverse the judgment of the district court and remand with instructions to grant Butler’s motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

The FBI convinced itself it could craft new forensic techniques out of thin air and deploy them without making sure they actually had some scientific basis. This is the end result of this hubris -- acts that took decades to correct and even longer to result in actual justice, rather than unearned convictions. Some of the people screwed by the FBI's junk science are already dead. Others, like Butler, may finally see their lives given back to them -- but with hardly any life left to live."

The entire story can be read at:

https://www.techdirt.com/articles/20200415/17550144307/after-48-years-dc-appeals-court-overturns-murder-conviction-based-fbis-garbage-hair-match-evidence.shtml

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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