Forensic Fraud and the ‘Insidious’ Culture of U.S. Courtrooms

Flawed forensic evidence is a key reason for many wrongful convictions in criminal cases. Setting rigorous standards for judges and prosecutors to follow in pretrial discovery would reduce its use, argues a study published in the Northwestern University Law Review.

Rigorous rules for pretrial discovery in criminal cases will curb the use of flawed forensic science, and reduce the wrongful convictions arising from the “insidious” prosecutor-dominated culture of American courtrooms, argues a study published in the Northwestern University Law Review.

Criminal justice proceedings, unlike civil and tort trials, too often rely on questionable forensic evidence that is rarely challenged by judges or prosecutors, according to the study.

The study authors suggest the root of the problem is not necessarily individual misconduct by court officers, but the lack of consistent rules that govern the presentation of critical forensic evidence before trial.

“Systems-level procedural problems…all too often contribute to the admission of flawed forensics in criminal proceedings,” the study says.

The study added: “These dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are ‘repeat players’ in criminal litigation and, as such, routinely support reduced pretrial protections for defendants.”

The study, entitled “Discovering Forensic Fraud,” was written by Jennifer D. Oliva, Associate Professor of Law and Public Health at West Virginia University; and Valena E. Beety, Associate Professor of Law at West Virginia University College of Law.

Pretrial discovery and disclosure rules similar to those used in civil cases could “halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions,” the authors claimed.

The study focused on forensic odontology—the study of bite marks—which both the American Board of Forensic Odontology (ABFO) and the White House Office of Science and Technology Policy (OSTP concluded in 2015 were an “unreliable forensic discipline.”

But, the study noted, “shockingly, courts continue to admit bite mark evidence in criminal trials and do so virtually exclusively on the bases of precedent.”

Several states have already begun to adopt more rigorous rules. Texas, North Carolina and West Virginia, for example, strengthened their criminal discovery standards following disclosures of wrongful convictions.

In 2014, Texas passed the Michael Morton Act, requiring full open-file discovery of favorable evidence after the prosecution receives a request. The Act was named after a man who was found to have been wrongfully convicted of his wife’s murder after his prosecutor—who later became a judge—hid exculpatory evidence.

The study called on other judicial systems around the country to follow suit.

“Such leveling of the playing field may return integrity to prosecutors’ offices and restore trust in our criminal adjudications,” the authors said.

This study was prepared by TCR news intern Julia Pagnamenta. She welcomes readers’ comments.


NY Defense Lawyers Challenge DNA Analysis Methods

Lawyers and some scientists question the validity of two DNA analysis techniques formerly used by New York City’s chief medical examiner. The result could affect thousands of criminal cases.

A coalition of defense lawyers is asking the New York State inspector general’s office to launch an inquiry into the use of disputed DNA analysis methods in thousands of criminal cases, the New York Times reports, with ProPublica. Over the past decade, the DNA laboratory of New York City’s chief medical examiner emerged as a pioneer in analyzing the most complicated evidence from crime scenes. It developed two techniques that went beyond standard practice at the FBI and other public labs for making identifications from DNA samples that were tiny or that contained a mix of more than one person’s genetic material.

As its reputation spread, the lab processed DNA evidence supplied not only by the New York police, but also by about 50 jurisdictions as far away as Bozeman, Mt., and Floresville, Tx., which paid the lab $1,100 per sample. Some scientists question the tests’ validity. In court testimony, an ex-lab official said she was fired for criticizing one method. A former member of the New York State Commission on Forensic Science said he had been wrong when he approved their use. The first expert witness allowed by a judge to examine the software source code behind one technique said its accuracy “should be seriously questioned.” This year, the lab shelved the two methods and replaced them with newer, more broadly used technology. The medical examiner’s chief of laboratories, Timothy Kupferschmid, said the discarded techniques were well-tested and valid, and that the lab adopted newer methods to align with changing FBI standards. He compared it to a vehicle upgrade. “So just because we’re switching to the new model, I mean, our old pickup truck worked great, but my new pickup truck is so much better,” he said.


Some Judges Still Allowing Disputed Forensic Evidence

Analysis of bite marks, latent fingerprints, burn patterns in arson investigations, footwear patterns and tire treads was once considered sound. It is now being denounced by lawyers and scientists who say it has not been studied enough to prove its reliability and in some cases has led to wrongful convictions. Even so, judges nationwide continue to admit such evidence regularly,

Hundreds of people have been convicted at least partly on the basis of forensic science that has come under fire during the past decade. Some of that science — analysis of bite marks, latent fingerprints, firearms identification, burn patterns in arson investigations, footwear patterns and tire treads — was once considered sound, but is now being denounced by lawyers and scientists who say it has not been studied enough to prove its reliability and in some cases has led to wrongful convictions. Even so, judges nationwide continue to admit such evidence regularly, reports the Associated Press. “Courts — unlike scientists — rely too heavily on precedent and not enough on the progress of science,” said Christopher Fabricant of the Innocence Project. “At some point, we have to acknowledge that precedent has to be overruled by scientific reality.”

See also: When New Research Proves Courtroom ‘Experts’ Wrong

Defense lawyers say prosecutors and judges are slow to acknowledge that some forensic science methods are flawed because they have for decades helped win convictions. Such evidence can be persuasive for jurors, many of whom who have seen it used dramatically on “Law & Order” and “CSI.” Rulings in the past year show judges are reluctant to rule against long-accepted evidence even when serious questions have been raised about its reliability. Two reports by scientific boards have sharply criticized such forensic evidence, and universities are moving toward more precise biometric tools. Some defense lawyers fear any progress on strengthening forensic science may be lost under President Trump. In April, Attorney General Jeff Sessions announced the Justice Department would disband the National Commission on Forensic Science, an independent panel of scientists, researchers, judges and attorneys that had been studying how to improve forensic practices.


Arrestees Not Convicted Rarely Remove DNA Samples

Thirty states collect DNA samples from arrestees. In states like Ohio, it’s rare for those who are not convicted to take their sample out of crime databases.

Ohio is among more than 30 states that have expanded their reach to collect DNA samples from people when they are arrested, rather than convicted, of serious crimes. For those who are never convicted, removing a DNA profile from state and federal databases used to solve crimes, is rare and, some say, burdensome, the Cleveland Plain Dealer reports.  Cuyahoga County officials have made a push to make sure all DNA samples are collected in all arrests for a felony offense, which has been required by Ohio law since 2011. The Plain Dealer reported in June that thousands of DNA samples — often on cheek swabs — were going uncollected here, a problem identified by the prosecutor’s office as it reinvestigated thousands of old rape cases. The prosecutor’s office, with researchers from Case Western Reserve University’s Begun Center, is formulating a plan to collect some of the missing or “owed” samples from people with active court cases or on parole or probation.

However, there is a flip side to the issue. It is just as important to make sure that people who are found not guilty, who have charges dropped or dismissed, or who never end up being charged after an arrest, can easily have their DNA removed — or expunged — from crime databases, said Cuyahoga County Chief Public Defender Mark Stanton and his deputy, Cullen Sweeney. The issue disproportionately affects low-income people of color who are more often stopped, searched and arrested, and already are unfairly overrepresented in government DNA databases. The process is not simple in Ohio, and the burden is placed on a person who was wrongfully accused to get a court order to remove DNA from the databases, often referred to as CODIS. The public defender’s office handles thousands of requests each year to help people seal criminal records.


When New Research Proves Courtroom ‘Experts’ Wrong

Many wrongful convictions are based on forensic testimony based on science later exposed as flawed. A California statute this year laid out the terms for granting relief to defendants challenging ‘expert’ evidence—but striking the right balance between evolving scientific research and trial pressures remains a challenge, says a UC law professor.

The advent of nuclear DNA typing was a watershed in criminal justice. It has helped to convict the guilty, while also permitting the exoneration of wrongfully convicted individuals—more than 300, according to a 2014 study[i].

In its 2009 report, the National Research Council declared that nuclear DNA typing is the only “forensic method [that] has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

But the exonerations have raised questions about why those wrongful convictions occurred in the first place. In many of them, the conviction rested in part on expert testimony that later scientific research exposed as flawed. In one study of 156 DNA exonerations, overstated expert testimony was presented at 60% of the trials.

These developments have prompted state legislatures to amend their post-conviction statutes to grant relief to defendants convicted on the basis of subsequently invalidated expert testimony.

While there is a growing consensus that there should be relief in some circumstances, articulating the circumstances in statutory language is challenging.

A California statute which came into effect this year appears to grant relief whenever the expert later “repudiate[s]” her opinion” without an express requirement that the expert specify a basis for the repudiation.

A 2015 Texas statute seems to grant relief only when new research flatly “contradicts” prior expert testimony. In the final analysis, these statutes must balance two fundamental interests: our abhorrence of wrongful convictions, and the finality of convictions that represent a substantial investment of time and resources.

How should that balance be struck? Consider three examples:

Bullet “Matching”

In some cases, later analysis almost completely discredits prior testimony. The FBI once employed Comparative Bullet Lead Analysis (CBLA). When the police recover an intact crime scene bullet, an expert can compare its striations to those on bullets fired from the defendant’s weapon.

However, when the crime scene bullet was too deformed, the FBI previously resorted to CBLA, analyzing seven elements in the crime scene bullet and bullets recovered from the defendant’s possession.

An expert often relied on CBLA as a basis for opining that the bullets came from the same batch (a single day’s manufacturing production) or the same box from the defendant’s possession. 

But CBLA critics pointed out that even the limited testimony about a batch is valid only if each batch is unique and uniform. Later analyses of bullet-manufacturer data indicated that neither assumption was true. A 2004 National Research Council report endorsed that criticism, and the FBI discontinued the use of CBLA.

Situations involving the use of CBLA are rare. 

 It is unrealistic to demand conclusive proof of the invalidity of a scientific technique or theory.

In its 1993 Daubert decision, the Supreme Court remarked that “arguably, there are no certainties in science.”

The most important aspect of the Daubert decision is its frank acknowledgment of the limits of the scientific enterprise. A requirement that the prior expert testimony be utterly discredited will deny relief to most defendants convicted on the basis of flawed expert testimony.

Shaken Baby Syndrome

 However, it is not enough for the defense to show that post trial, a competing school of thought emerged. Shaken baby syndrome (SBS) is a case in point.

There was formerly a consensus, especially among pediatricians and pathologists, that violently shaking an infant can cause fatal brain injury. In many cases, the autopsy revealed such injuries, a caregiver acknowledged shaking the child, but there was no evidence that the child’s head had struck a surface or object.

Later, biomechanical experts conducted experiments with primates and anthropomorphic models of infant necks. The experiments suggested that shaking alone cannot generate enough force to cause fatal brain injury.

Nevertheless, in 2016 the Ninth Circuit Court of Appeals ruled that the biomechanical research had not invalidated the SBS theory to the extent that a defendant convicted on the basis of SBS was entitled to relief. In the court’s words, although the new research had prompted “a vigorous debate” over SBS, the research did not discredit SBS to the same extent that CBLA has been exposed.

There are doubts about whether the biomechanical findings can be extrapolated to human infants. And further research is complicated by the fact that medical ethics precludes subjecting infants to violent shaking to test the premise.

In the official Note accompanying the 2000 amendment to Federal Evidence Rule 702, the Advisory Committee stated that if proponents of two “competing scientific theories” can each satisfy 702’s reliability threshold, the judge should allow both to testify. In other words, the advent of a competing theory does not automatically invalidate a prior theory or mandate a new trial.

Hair Analysis

 In the previous example, the emergence of a new theory merely raises doubts about the prior theory. But in some cases, new scientific research seriously undermines the theory.

An example is microscopic analysis of hair. Although trace evidence experts have recently given more circumscribed testimony, in the past they frequently went to the brink of opining that two hairs came from the same person because the hairs were “microscopically indistinguishable.”

In an FBI study of 268 microscopic hair analysis cases, reviewers found that prosecution experts had overstated at 96% of the trials. Another FBI study compared microscopic hair analysis opinions with mtDNA test results. In 11% of the cases in which the analysts opined that the defendant was a possible source of the two “microscopically indistinguishable” hair samples, the DNA established that the defendant was not the source.

One jury decided to convict after an expert testified that “it’s my experience in 10 years [that] it’s extremely rare I will have known hair samples from two different people I can’t tell apart.” In 2016, a Massachusetts Superior Court granted a new trial because the mtDNA research had gravely undermined confidence in microscopic hair analysis.

To gain post-conviction relief, a defendant ought to be required to demonstrate more than the emergence of a new school of thought. Moreover, even when the new scientific research is at odds with prior testimony, the defendant must show that the expert testimony played a major role in securing the conviction.

We must balance the competing interests.

A defendant should not receive a new trial simply because a new school of thought has emerged. Yet we cannot be illiberal and revise post-conviction relief statutes to grant new trials only when later research “certainly” debunks the prior testimony.

The standard ought to be whether new scientific insights seriously undermine our confidence in testimony that prompted an earlier conviction.

Edward Imwinkelried

That standard is the best test for identifying and correcting convictions that are miscarriages of justice.

Edward Imwinkelried is the Edward L. Barrett, Jr. Professor of Law Emeritus at the University of California, Davis. He is a co-author of Giannelli, Imwinkelried, Roth & Campbell Moriarty, “Scientific Evidence” (5th ed. 2012) and author of the “Methods of Attacking Scientific Evidence” (5th ed. 2014). He welcomes readers’ comments.

 [i] Beldock, Feldman & Steel, The Death of the “Hurricane” and the Criminal Justice System’s Failures, NAT’L L.J., Apr. 28, 2014, at 47.


Lizzie Borden to O. J. Simpson: The Disappointing History of Forensic Science

     The historical trajectory of forensic science can be illustrated by three celebrated murder trials: The Lizzie Borden case in 1892; the 1932 murder of the Lindbergh baby and trial of Bruno Richard Hauptmann; and the O. J. Simps…

     The historical trajectory of forensic science can be illustrated by three celebrated murder trials: The Lizzie Borden case in 1892; the 1932 murder of the Lindbergh baby and trial of Bruno Richard Hauptmann; and the O. J. Simpson double murder and marathon trial of the mid-1990s. Starting with the Borden case, the arc rises to the Lindbergh investigation and trial, then falls to the bungled Simpson crime scene investigation and subsequent trial featuring investigative and forensic incompetence, hired-gun testimony, and televised courtroom showboating and baffoonery.

Lizzie Borden

     While Lizzie Borden may have had the opportunity, motive, and means of hacking her stepmother and father to death in their Fall River, Massachusetts home on August 4, 1892, the police, without the benefit of forensic serology and latent fingerprint identification, had no way to physically link her to the bludgeoned victims, or to the never identified hatchet believed to be the instrument of death.

     In England, the year of the Borden murders, a biologist named Francis Galton published the world's first book on fingerprint classification. As early as 1880, another Englishman, Henry Faulds, had been writing about the use of finger marks (latent prints) as a method of placing suspects at the scenes of crimes. When Mr. and Mrs. Borden were brutally beaten to death in Fall River, the so-called "exchange principle"--conceived by the French chemist Edmond Locard--that a criminal leaves part of himself at the scene of a crime and takes part of it with him--had not evolved from theory into practice. In 1901, nine years after Lizzie Borden's arrest, scientists in Germany discovered a way to identify and group human blood, a forensic technique that, had it existed in 1892, may have changed the outcome of the Borden case.

     The all-male jury at Lizzie Borden's spectator-packed trial, without being presented with physical evidence linking the 32-year-old defendant to the bludgeoned and bloodied bodies, and believing that upper-middle-class women were too genteel for such brutality, found her not guilty. Had expert witnesses identified the stain on her dress as human blood, and matched a bloody crime scene latent to one of her fingers, the evidence, albeit circumstantial, may have convinced the jurors of her guilt. Assuming that she did in fact commit the double murder, Lizzie, confronted by investigators in possession of such damning, physical evidence, may have confessed, or in the very least, made an incriminating remark.

Bruno Richard Hauptmann

     In 1935, when Bruno Richard Hauptmann, an illegal alien from Germany living in the Bronx went on trial in Flemington, New Jersey for the March 1, 1932 murder of the 20-month-old son of Charles and Anne Lindbergh, America had confidence in forensic science, and considered it the wave of the future. Because no one had seen the 35-year-old defendant climb the homemade, wooden extension ladder to the second story nursery window at the Lindbergh estate near Hopewell, New Jersey, prosecutors didn't possess direct evidence of his guilt. Moreover, no one knew exactly how Hauptmann had killed the baby--had he been strangled, suffocated, or bludgeoned to death?--or even exactly where the murder took place. (A truck driver who had pulled over to relieve himself along the road, found the baby's remains in a shallow grave about two miles from the Lindbergh house.) If Hauptmann were to be convicted, it would have to be entirely on physical evidence. In other words, jurors, based on the physical evidence and its expert analysis, would have to infer his guilt.

     Having eluded detection for two and a half years following the hand-off of $50,000 in ransom money to a shadowy figure in a Bronx cemetery, the kidnapper had been passing the ransom bills, identified by their recorded serial numbers, around New York City. In September 1934, a squad made up of FBI agents, troopers from the New Jersey State Police, and officers with the New York City Police Department, pulled Hauptmann out of his car in Manhattan as he drove from his rented house in the Bronx to Wall Street where he had lost $25,000 in the stock market. From his wallet, the arresting officers recovered one of the ransom bills, and back at his house, found bundles of the ransom money--totaling $14,000--hidden in his garage. Confronted with this and other circumstantial evidence of his guilt, Hauptmann, a low-grade sociopath, refused to confess.

     At Hauptmann's January 1935 trial, the most publicized and celebrated event of its kind in America, and perhaps the world, eight of the country's most prominent questioned document examiners testified that Hauptmann had written the note left in the nursery as well as the fourteen ransom negotiation letters sent to the Lindberghs prior to the cemetery payoff. A federal wood expert from Wisconsin took the stand and identified a board from the kidnap ladder as having come from Hauptmann's attic floor. This witness also matched tool marks on the ladder with test marks from the blade of Hauptmann's wood plane. (Although a carpenter by trade, Hauptmann had not used his tools since the ransom payoff in April 1932.)

     On February 14, 1935, the jury, based upon Hauptmann's possession of the ransom money, and the physical evidence linking him to the extortion documents and the kidnap ladder, found him guilty. On April 3, 1936, following a series of appeals, prison personnel at the state penitentiary in Trenton, New Jersey strapped him into the electric chair and threw the switch. The handful of protestors gathered outside the death house, when informed of Hauptmann's execution, went home.

O. J. Simpson

     Sixty years after Hauptmann's execution, detectives in Los Angeles arrested O. J. Simpson for the murders of his ex-wife Nicole and her friend Ronald Goldman. The blooding knifings occurred at a time when most big city detectives had at least some college education, and months of police academy training. Human blood could not only be identified as such and grouped, it could be traced, through DNA science, to an individual donor. Unlike the Borden murders, the double homicide in California produced identifiable blood stains, drops and pools at the death site, in Simpson's vehicle, and inside his house. The prolonged, nationally televised trial featured the testimony of DNA analysts, crime scene technicians, blood spatter interpretation witnesses, footwear impression experts, and forensic pathologists. The Simpson trial introduced forensic DNA science to the American public, and could have been a showcase for forensic science in general. Instead, the case featured investigative bungling, batteries of opposing experts, prosecutorial incompetence, and a jury so confounded by the conflicting science, they found Simpson not guilty of a crime most people believe he committed.

     Like Lizzie Borden, O. J. Simpson, while acquitted, was not exonerated. He was destined to live out the rest of his life in that gray area between innocence and guilt. In the Borden case, prosecutors did the best they could with what they had. In the Simpson case, the state squandered cutting edge science and an embarrassment of riches in physical, crime scene evidence. Perhaps the greatest lesson of the Simpson case is this: in a time of cutting edge science and relatively high-paid, well-educated police officers, criminal investigation has become a lost art, and forensic science, a failed promise.


Watery Graves: The Mystery of Foss Lake

     There’s no telling how many murder victims lay on the bottom of America’s lakes, rivers, and ponds. Most people don’t realize that these boating, swimming, and fishing sites are also the unmarked graves of people who have gone missi…

     There's no telling how many murder victims lay on the bottom of America's lakes, rivers, and ponds. Most people don't realize that these boating, swimming, and fishing sites are also the unmarked graves of people who have gone missing and might never be found. It's a sobering thought.

     Whenever a lake goes dry or is drained, law enforcement officers often gather to recover guns, knives, cars, safes, cellphones, computers, wallets, and other potential indicia of foul play. Occasionally, the remains of missing persons are exposed as well. When that happens, one mystery is solved and another is created.

     On September 10, 2013, Oklahoma Highway Patrol officer George Hoyle, while testing a sonar detection device from a boat on Foss Lake 110 miles west of Oklahoma City, discovered a pair of vehicles sitting under twelve feet of murky water.

     A week after the vehicles were detected, Darrell Splawn, a member of the state's underwater search and rescue team, dove into the lake for a closer look. At this point, officers believed they had found a pair of stolen cars.

     When officer Splawn opened the door to one of the vehicles and probed its interior, his hand came in contact with a shoe. He also discovered, near the car, a human skull. The diver surfaced to report his finds. When the diver slipped back into the muddy water to check on the other vehicle, he saw skeletal remains inside the second car.

     Once the heavily corroded cars--a 1952 Chevrolet and a 1969 Chevy Camero--were pulled out of the reservoir, they revealed their gruesome secrets. Each vehicle contained the skeletal remains of three people. Officers also recovered, among other items, a muddy wallet and a purse.

     On April 8, 1969, 69-year-old John Alva Porter, the owner of a 1952 green Chevy, went missing. In the car with him that night were his brother Arlie and 58-year-old Nora Marie Duncan. These three residents of nearby Elk City, along with the Chevy, disappeared without a trace. No one had any idea what had happened to them.

     Jimmy Williams, a 16-year-old from Sayre, Oklahoma, a town of 4,000 a few miles from the lake, owned a 1969 Chevrolet Camero. On the night of November 20, 1970, he and two friends--Thomas Michael Rios and Leah Gail Johnson--both 18, were riding in Williams' car. Instead of going to the high school football game in Elk City, the trio had gone hunting on Turkey Creek Road. The teenagers and the Camero were never seen again.

     While the six skeletal remains are presumed to match the two sets of missing persons, it would take months to scientifically confirm their identities. Forensic scientists in the Oklahoma Medical Examiner's Office compared DNA from the bones with DNA samples from surviving family members. Dr. Angela Berg, the state forensic anthropologist, determined the gender, general stature, and approximate ages of the people pulled out of the lake. She did this by analyzing leg and pelvic bones along with the skulls. This data was compared with information contained in the missing person reports.

     What the 44-year-old remains did not reveal was the manner and cause of these deaths. While the six people presumably drowned, they could have been murdered by gun, knife, or blunt instrument then dumped into the lake. To rule out foul play, the forensic pathologist and the anthropologist looked for signs of trauma such as bullet holes, knife wounds; and smashed or broken bones. The forensic scientists also attempted to determine if the fates of the people inside the two cars were somehow connected.

     Custer County Sheriff Bruce Peoples told an Associated Press reporter that it was possible these underwater victims had been driven accidentally into the lake where they had drowned. "We know that to happen even if you know your way around," he said. "It can happen that quick." While that is certainly possible, until murder is ruled out, it should be presumed.

     In October 2014, the forensic pathologist officially confirmed the identities of the six sets of remains. Two months later, the medical examiner's office ruled out foul play. Some of the victims' family members, however, remained skeptical and suspected foul play in the deaths.



The Future of Forgeries

This article argues that AI technologies will make image, audio, and video forgeries much easier in the future. Combined, the trajectory of cheap, high-quality media forgeries is worrying. At the current pace of progress, it may be as little as two or three years before realistic audio forgeries are good enough to fool the untrained ear, and only five or…

This article argues that AI technologies will make image, audio, and video forgeries much easier in the future.

Combined, the trajectory of cheap, high-quality media forgeries is worrying. At the current pace of progress, it may be as little as two or three years before realistic audio forgeries are good enough to fool the untrained ear, and only five or 10 years before forgeries can fool at least some types of forensic analysis. When tools for producing fake video perform at higher quality than today's CGI and are simultaneously available to untrained amateurs, these forgeries might comprise a large part of the information ecosystem. The growth in this technology will transform the meaning of evidence and truth in domains across journalism, government communications, testimony in criminal justice, and, of course, national security.

I am not worried about fooling the "untrained ear," and more worried about fooling forensic analysis. But there's an arms race here. Recording technologies will get more sophisticated, too, making their outputs harder to forge. Still, I agree that the advantage will go to the forgers and not the forgery detectors.


Decades Later, TX Couple Exonerated in Daycare Sex Case

Fran and Dan Keller served 21 years in prison for one of Austin’s most notorious and lurid cases — the alleged sexual abuse of children in their daycare center in 1991. They were freed in 2013 based upon errors in physical evidence used against them but had awaited the official declaration of innocence that came this week.

The district attorney in Austin, Tex., filed court documents Tuesday declaring that Fran and Dan Keller were innocent of one of Austin’s most notorious and lurid cases — the alleged sexual abuse of children in their South Austin day care center in 1991, reports the Austin American-Statesman. “It seems like we can breathe again,” Fran Keller said. “We can sleep again without nightmares. We can go out without having to worry about people recognizing us in the grocery store.”

The accusations against the couple made national news after three children accused them of participating in satanic rituals that included videotaped orgies, dismembered babies and tortured pets. No evidence of such activities was ever discovered. Two decades after the Kellers were convicted, the case against them collapsed when the only physical evidence of abuse was acknowledged as a mistake by the examining physician. They were freed in 2013 after serving more than 21 years in prison. A state appeals court overturned their convictions in 2015 but stopped short of declaring the couple innocent. On Tuesday, DA Margaret Moore filed a motion to dismiss their criminal case.


Flawed Forensics: Wrong by a Hair

The FBI has acknowledged that at least 13 individuals in Wisconsin were convicted as a result of flawed evidence involving hair and fiber, according to Wisconsin Watch. Such errors –a factor in one-fifth of all DNA exonerations— add fuel to the burgeoning national debate over the validity of forensic evidence.

The 28-year-old mother of two was raped by a stranger in her home in the rural Wisconsin community of 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. Local 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.

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.

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.

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.”

Hair Cases Under Review

The Wisconsin Center for Investigative Journalism has learned that among the 19 reviewed cases are the 1995 prosecution of Patrick W. Greer in La Crosse County in which numerous errors were identified; and the 1985 case brought against Glenn Lale in Walworth County, in which no errors were identified.

Records provided by the Wisconsin Department of Justice under the public records law also mention a third unnamed case from McHenry County, Illinois, which has a tie to Vilas County.

In addition to the FBI cases, there are 15 cases in which Wisconsin State Crime Laboratory analysts trained by the now-discredited FBI hairs and fibers unit performed microscopic hair comparisons, the DOJ says. Those cases are not part of the FBI review.


Not all defendants whose cases included flawed hair analysis are innocent. But it is a significant factor in wrongful convictions nationwide. Defendants in about one-fifth of exonerations by DNA evidence were convicted at least in part on hair analysis that turned out to be wrong, according to the NACDL.

In some instances, hair testimony and analysis by the FBI, although faulty, may be immaterial to the conviction.


Notification Lags Nationwide

Last year, FBI Director James Comey implored governors to prod reluctant prosecutors in their states to notify defendants of the bad FBI hair analysis, warning it “could have misled a jury or judge.”

The FBI itself was criticized in 2014 for failing to ensure that prosecutors notified defendants of the problematic forensic work. The U.S. Office of the Inspector General said that among 402 reviewed cases, it found verification that the defense was notified in just 15 of them.

The only Wisconsin case examined by the OIG found that three defendants in a 1979 kidnapping and sexual assault prosecuted in U.S. District Court in Milwaukee had not been notified of Malone’s faulty hair analysis in their case. One of the defendants, Dennis Wieneke, said the U.S. Department of Justice notified him in 2014; the analysis was done in 2003.

Wieneke, who served 23 years in prison after pleading guilty, said he is deeply sorry for his part in the crime but that Malone victimized people too.

“I think there’s a lot of innocent people out there he hurt,” Wieneke said. “When you go to court, testimony from the FBI — courts look at it as 100 percent correct.”

The OIG also criticized the slow pace of the review, noting that the FBI’s hair and fiber analysis was known to be prone to error or manipulation since the 1990s when Whitehurst — who retired in 1998 from the agency with a $1.45 million settlement for retaliation — blew the whistle.

Three death row inmates were executed before the FBI testimony in their cases could be examined, the OIG found. (Wisconsin does not have the death penalty.)

State Also Got Hair Evidence Wrong

In addition to FBI cases, director Comey has urged state and local authorities to expand upon his agency’s review by examining the work of their own crime lab analysts, some of whom were trained by the FBI’s now-discredited hairs and fibers unit.

Antoun said those cases are “a whole different group of cases that need to be reviewed for scientifically unsupported statements in testimony and lab reports.”

The Wisconsin Innocence Project has sought to team up with the DOJ to examine those cases, but the agency has not responded to messages seeking a meeting, attorney Cristina Bordé said.

The DOJ recently told the Innocence Project that there had been four FBI-trained analysts and 15 cases involving microscopic hair comparison by the state crime lab. The DOJ declined to identify the cases, citing a state law that allows it to block access to forensic reports to anyone outside of law enforcement.

States including IowaMassachusetts and Texas are conducting reviews of their own analysts’ cases.

DOJ spokesman Koremenos said the state crime lab stopped using microscopic hair comparison about 20 years ago because of the “subjective problems of hair analysis and the advent of DNA.”

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.

Co-counsel Bryce Benjet of the New York-based Innocence Project told Moeser that the “DNA evidence clearly contradicts the opinion testimony that was provided by the FBI at trial.”

During the hearing, Kaiser questioned DNA analysts in minute detail about their handling of the hairs, zeroing in on the fact that one lab had placed them on Post-it notes before mailing them.

Kaiser and Dane County Assistant District Attorney Erin Hanson argued in their objection to a new trial filed in April  that the defense cannot prove the strand of hair Oakes linked to Beranek is among the hairs that now exclude him. The objection noted that labs handling the hairs reported either five or six strands of hair.

“What hairs got tested for DNA and where they came from simply has not been proved to a degree that would allow this issue to overcome this jury’s verdict,” prosecutors argued.

The prosecution also contradicted the FBI’s characterization of its own agent’s testimony, arguing that Oakes’ statements at trial were not “vague, misleading, improper or erroneous,” and that “Oakes admitted that he cannot say with absolute scientific certainty that the questioned hair came from the defendant.”

In a closing statement during the February hearing, Findley rejected the notion that a hair had been lost or that an errant hair had made its way into the evidence. The issue, he said, had been “poked and prodded and examined … in painstaking detail” at the hearing.

“We now know that the FBI hair analysis — whether in good faith or not — was simply wrong,” Findley said. “The state was misled by it. The court was misled by it. And most importantly, the jury was misled by it. We now know that the hair that so powerfully tied Mr. Beranek to this crime actually wasn’t his.”

Beranek’s daughter, Desiree Burke, 36, attended the February hearing. She said the flawed FBI analysis ripped her family apart.

“It’s not his hair. He didn’t do it,” Burke said. “I missed my whole childhood with him, my whole adult life. He’s lost so many people (while) inside, all because of this evidence.”

The above is an abridged version of an article published last week by Wisconsin Watch, of the Wisconsin Center for Investigative Journalism. Dee J. Hall is a former John Jay Criminal Justice Reporting Fellow. For the full story, please read here.