The DOJ and FBI began their investigation after three men whose cases involved flawed microscopic hair analysis were later exonerated by DNA evidence. In May, evidence of these flaws spared Willie Manning from execution by mere hours, although his DNA has not yet been tested. The FBI began reviewing a few hundred cases, but notified only prosecutors of flaws, with the Department of Justice claiming they were not required to inform defendants or their lawyers. In more than half of the 250 cases in which errors were initially identified, prosecutors never contacted defendants to inform them of the potentially exonerating evidence. The DOJ since expanded its review to involve thousands of older cases from the 1980s and 1990s.
But cases as recently as 2000 included flawed analyses and overstatements about the accuracy of these analyses. In a deal brokered by several advocacy organizations, the Department of Justice and FBI have now agreed to review an additional 2,000-plus cases between 1985 and 2000 in which testimony may have exaggerated the significance of hair sample analyses, which cannot be linked to one person, but only categories of people.
Particularly noteworthy in this agreement is that the Justice Department is tasked with directly notifying defendants of any flaws, and has also agreed to waive deadlines and procedural hurdles that typically make it difficult to challenge convictions. The lawyer for one man whose case relied upon flawed hair sample evidence said he did not know the DOJ had uncovered flaws until the Washington Post informed him. After 32 years in prison, DNA testing called the murder conviction into question and John Norman Huffington was granted a new trial.
The U.S. Supreme Court made clear in 2009 that defendants do not have a right to have their available DNA tested, even at their own expense. So it is particularly relevant that the FBI has also agreed to provide DNA testing to every defendant whose case involves evidence deemed flawed by the FBI. Since its emergence as a criminal justice tool, DNA testing has exonerated 310 people in the United States after their conviction, revealing key misconceptions about who is guilty and what evidence is probative of guilt. But defendants face immense obstacles to testing their own DNA, even when it may be the only available scientific evidence of their innocence. In most states, defendants do not even have access to a national DNA database. And while some individual prosecutors are supportive of greater access to DNA evidence, many launch legal battles to block access to testing, incentivized by their interest in preserving their own convictions. These FBI admissions of error are yet another reason to question why defendants don’t have as much access to their own DNA as police and prosecutors pit against them in adversarial proceedings.