Forensic science commission to review convictions based on hair samples

Posted Sunday, Aug. 11, 2013  comments  Print Reprints

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Claude Jones had always claimed that he was innocent of the 1989 murder of an East Texas liquor store owner. But DNA testing wasn’t available in time to save his life.

Not until a decade after Jones was executed did scientists using DNA analysis confirm that a hair found at the crime scene did not belong to Jones. It was the murder victim’s.

Across the nation, more than 70 exonerations have involved the improper use of hair sampling — a practice, now considered “junk science,” in which a strand of hair is examined under a miscroscope to identify the people who were at a crime scene.

The Texas Forensic Science Commission wants to determine whether anyone has been wrongly imprisoned by identifying older criminal cases in which microscopic hair fibers were used to convict people of rape, murder, robbery and lesser crimes. The goal is to use DNA to find out whether any other miscarriages of justice have occurred.

“We have a moral responsibility to find out,” said Arthur J. Eisenberg, a forensic science commissioner who is a DNA expert and a co-director of the University of North Texas Center for Human Identification in Fort Worth.

The state’s top forensic watchdog agency is surveying crime labs large and small to learn the methods used to conduct hair analysis that did not involve verification with DNA. The Forensic Science Commission’s review is part of a national effort by the FBI and the Justice Department to clear up any false convictions due to improper hair comparisons.

The commission hopes that labs will self-report examples of miscroscopic hair analysis and dig up old reports, transcripts and testimony.

“We want to make sure convictions are based upon responsible forensic evidence,” Eisenberg said. “And we want to make sure there aren’t cases where undue weight has been put on that evidence.”

Hair is the most common evidence found at crime scenes, Eisenberg said. “It is often abundant in sample,” he said.

But it has been established in recent years that it is impossible to “match” a hair under the microscope to a specific person.

Only DNA analysis can match hair to a specific person, Eisenberg said.

A properly trained hair examiner can make an “association” between a hair that is brought into evidence and a hair from a suspect, said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers in Washington, D.C.

“But the notion that the examiner can provide a scientifically valid estimate of the rareness or the frequency is not valid,” Reimer said.

“It is a popular misconception that a hair comparison is a one-to-one match … where all of the characteristics” present in both the question hair and the sample hair are the same, Reimer told the state commission July 12 at a meeting. “There rarely is ever a one-to-one match between intra-individual variation from hairs even on an individual person.”

Reimer’s lawyers association and the Innocence Project, working with the FBI, are putting a priority on contacting people serving death sentences. Then, DNA testing will be conducted on any evidence that remains, Reimer said.

“We are looking for cases where there was a positive association through lab reports,” Reimer said. “The FBI is then looking to contact contributors, law enforcement agencies, prosecutors to get the names and parties to review.”

Small bit of hair

The key evidence against Jones, the man executed in the murder of the liquor store owner in San Jacinto County, was a small hair found near the victim’s body. A chemist on the case originally said the sample hair was too small to identify. But at trial he apparently changed his mind and testified that the hair could belong only to Jones.

Tarrant County is unlikely to have very many cases in which microscopic hair was improperly introduced as evidence in court, some say.

Tarrant County Assistant District Attorney Bob Gill said his office has used the evidence in criminal cases but not as primary evidence.

“We’ve never had trace scientists in our jurisdiction who believed that hair could be individualized just on a visual comparison,” Gill said.

It has also been a well-accepted fact in the local criminal justice community that a single hair follicle can’t be the only piece of evidence that connects a person to a crime, said Mark Daniel, a Fort Worth criminal defense attorney.

“You really have a two-tiered approach,” Daniel said. “There’s just a small piece of evidence versus it being the one connecting piece of evidence.”

But if any local cases do come up, Eisenberg says, his DNA lab will be ready to cover the cost of DNA testing.

“Our lab would be happy to do it,” Eisenberg said. “We have that responsibility.”

Yamil Berard, 817-390-7705

Twitter: @yberard

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