WaPo Reporter: FBI Admits Misreporting Forensic Data in Dozens of Capital Cases

RUSH TRANSCRIPT:
HALL: "We are back with a disturbing report about our criminal justice system. The Washington Post reports that for over two decades before the year 2000, the D.O.J. Relied on flawed forensic testimony against criminal defendants, including capital cases. The post reports 26 of 28 examiners at the FBI's microscopic hair comparison unit overstated evidence in at least 95% of cases reviewed thus far, including 32 in which defendants were sentenced to death, 14 of whom were either executed or died in prison. In a joint statement, the FBI and Justice Department says they are committed to ensuring defendants are notified of past errors and that the justice Department has done in every instance that. Joining me live now, the man who broke that story, legal reporter Spencer Shu. Thank you so much for your time. 
HSU: "Thank you." 
HALL: "There are a number of questions, first of which, obviously, is what happens now that this information has been revealed?" 
HSU: "What is happening is that defendants in all these 257 trials are being notified, so are prosecutors, that 46 states and the district. The FBI is reviewing and establishing -- one of the things it says is a problem here is they lacked until 2012 written standards for appropriate, versus erroneous testimony in terms of hair comparison. They are now completing so those standards there year for 19 forensic disciplines, one of the challenges for defendants now is, you know, the FBI offered to retest DNA in these cases if requested by a prosecutor or a judge, the Justice Department has offered to lower procedural objections to appeals, but many of these cases the DNA is no longer available or never was available, or has been lost, and many states there are not laws that allow defendants to get back to appeal their convictions when the forensic evidence against them has been undermined or recanted." 
HALL: "You quote Brandon L. Garrett, he said the results reveal a mass disaster inside the criminal justice system. The problem is, there may be few judges, prosecutors, or defense lawyers who are willing to do anything about it. Take us inside this laboratory and this particular -- specific unit at the heart of this report and how they got this so wrong, if these allegations are true?" 
HSU: "Right. Hair comparison has been done since the 1800s, the FBI lab started using it in the 1950s. They kind of reached its heyday in the '70s and '80s before the era of DNA, viewed as almost sort of second best to fingerprints. Fingerprints could be used to identify an individual, hair was sort of the next best thing, even though they said they could not say with, like fingerprints, they could say it was highly unlikely hairs of two people might be a match. They went on to say maybe in their own experience, only twice in ten years, doing 10,000 examinations, could they ever not tell the hairs of two different people apart. In reality, there is no scientific basis for saying how often the hairs of two different people might look alike. After DNA came along, FBI discovered their matches were wrong at least 12% of the time, after two agents had confirmed it. And while the era we are talking about, problem was judges, defense attorneys, didn't know the statistics, didn't know the science, didn't know the right questions to ask, even though the FBI was aware of these doubts, other government agencies, other forensic experts raised questions in the '70s, the inspector general discredited unscientific activity by several FBI agents in the late '90s. They identified one hair examiner, they said at the time, off the reservation, now turns out all the examiners testified in the same way, the problem was, the FBI didn't know who was doing it, didn't keep track of testimony. And in some ways, was trying to protect these convictions after that period of time, rather than do what they've done now." 
HALL: "As you well know, the debate as of late, it's been cocktail will be used in states that carry out the death penalty. The real question people want to know after reading your report and seeing this information, is the impact this could have on cases, particularly those people who are still on death row and whether or not people were executed with this bad information. Or this faulty information." 
HSU: "So we know, you're right, absolutely right, we know that 18 of the defendants are still alive, they have this information. We are told that many of them are trying to act on it. There's a question what happens to those who have already been executed, you know, their estates, their families may seek posthumous testing if evidence is still available. We know in the district of Columbia, where public defenders and prosecutors alone, we think it's the only jurisdiction where they've reinvestigated every FBI hair case, there were seven of these 257 trials that were discovered in the district, three of those cases have been exonerated through DNA. That doesn't count another two cases where there was an exoneration and the conviction vacated for similar reasons. It's an open question and one last disturbing note, these 28 FBI hair examiners over this period trained another 500 to 1,000 state examiners to testify the same way. 
HALL: "Wow, it's an incredible report. Spencer Hsu, thank you so much"