By Jeremy Goh, Reynard Chua and Ng Yeeting
Santae Tribble, 52, was convicted for the murder of a Southeast Washington taxi driver in 1978. The killer was witnessed to be wearing a stocking. A piece of hair was subsequently recovered from a stocking found near the crime scene. A FBI examiner found that piece of hair microscopically matched Tribble’s. After serving his 28-year sentence, Tribble was exonerated in 2012, following a DNA test that conclusively proved that the hair found on the stocking was not his.1
Donald Eugene Gates, 60, was charged and convicted for the rape and murder of a 21 year-old university student in 1981. At trial, the FBI forensic analyst said Gates’ hairs were “microscopically indistinguishable” from hairs found on the victim’s body. Following a subsequent DNA test conducted in 2007, it was proven that Gates was neither the rapist nor the killer. By the time of his exoneration, Gates had served 27 years of his sentence.2
Kirk Odom, 50, was only 18 years old when he was arrested, charged, and convicted for raping a 27 year-old woman. The FBI special agent testified that a strand of hair found on the victim’s nightgown was microscopically similar to Odom’s hair and that “the [two] samples were indistinguishable”. In 2011, a DNA test excluded Odom’s involvement. He spent over 22 years in prison.3
Odom’s DNA exoneration on 13 July 2012 exposed problems with the FBI’s use of forensic hair analysis which sparked off a federal inquiry into convictions based on microscopic analysis of hair samples found at crime scenes. The three cases of D.C. men exonerated through DNA testing showed that forensic hair analysis had contributed to their wrongful convictions for rape or murder in the early 1980s. The review will see an examination of more than 21,000 federal and state cases referred to the FBI Lab’s hair unit between 1982 through 1999.4
What is interesting here is that the review sees an unusual collaboration between the FBI and the Justice Department, in consultation with the United States Innocence Project and the National Association of Criminal Defense Lawyers (“NACDL”).5 This collaboration appears to be the first of its kind, and this article shall examine the merits of such collaborations, their relevance in Singapore’s context, and ultimately propose a viable framework to deal with obsolete forensic methods.
Ad-hoc Committees vs. Perennial Committees
The collaboration between the FBI, the Justice Department, the United States Innocence Project and the NACDL was clearly in response to the increasing awareness of the inaccuracy of matching microscopic analyses of hair samples found at crime scenes, and the disquieting discovery that these samples were in fact wrongly identifying entirely innocent persons as perpetrators of offences.
The formation of such “ad-hoc committees” seems to be reserved for situations where a significant error was discovered in a widespread forensic practice.
The advantage of ad-hoc committees is that they allow for highly focused and specialised inquiries into particular issues of concern. In this instance, the collaboration focuses on the more than 2000 criminal cases in which the FBI conducted microscopic hair analysis, which is the process of matching the physical microscopic details of hair. The inquiry will look into, amongst other things, whether lab analysts have overstated the significance of their findings. This is to prevent situations from arising akin to Odom’s case, where the hair sample found at the crime scene was claimed to be “microscopically indistinguishable” from Odom’s hair samples, but DNA testing subsequently proved otherwise. The inquiry will also look into whether the laboratory reports and testimonies used during the convictions were scientifically valid. DNA testing, which is scientifically more accurate,6will be used on the available evidence to determine conclusively whether the hair sample belonged to the convicted person. With a single committee (i.e. the collaboration) administering the review, the aims of the previously separate organisations are now more closely aligned. This will also allow the different organisations to pool their resources and expertise.
The downside of ad-hoc committees, however, is the fact that its formation is reactive, rather than preventive. The problem of inaccurate microscopic analysis of hair was only discovered when, as in the above-mentioned cases of wrongful convictions, a pattern of systemic error became glaringly obvious. This review may have come too late for the convicted persons who spent significant time in prison, especially in the case of death row inmates. In some tragic cases, the convicted person may have long since been executed.7
The need for constant vigilance against such wrongful convictions is apparent.
In the United Kingdom, the Criminal Cases Review Commission (“CCRC”) is an example of a “perennial” committee. The CCRC was set up by the Criminal Appeal Act 1995 in response to worries regarding possible miscarriages of justice. It was intended that the CCRC be an independent body that conducted thorough re-examinations of alleged miscarriages of injustices.8
The draw of such a permanent, institutional approach as opposed to an ad-hoc committee is that with cases constantly being reviewed by an independent body, any pattern or possible wrongful convictions based on inaccurate scientific analysis can be more readily identified. This stands in contrast to an ad-hoc committee that convenes only when it is called – as is the present case in the US – after news of the inaccuracy of microscopic hair analysis went public. To this end, a perennial institutional body is best placed to play an active role in flagging any possible systematic causes of miscarriages of justice, such as inaccurate scientific analyses. Examples of perennial committees include the CCRC as mentioned above, as well as the various Innocence Projects around the world.
That said, it has to be recognized that a “perennial” committee cannot realistically be expected to relook all claims of miscarriages of justice. Perennial committees often rely on the initiative and application of convicted persons who feel that they were wrongfully convicted. This necessarily excludes potentially wrongfully convicted individuals who have resigned to their fate and have not been actively policing their rights, or individuals who are not even aware of the perennial committee and therefore miss their opportunity for exoneration. In this aspect, it can be said that a reactive ad-hoc committee has far greater reach. This is because this committee can review all cases that come within its designated scope of review; and that scope may capture the particular categories of individuals which perennial committees might not. In this particular case, the collaboration between the FBI and the Justice Department, in consultation with the United States Innocence Project and NACDL will be looking at the over 2000 cases in which the individual was convicted on the basis of forensic hair analysis. This encompasses all cases, regardless whether the convicted persons have applied for a review. Seen in this light, ad-hoc committees are certainly attractive in their own right.
Relevance to Singapore
Incidences of inaccurate forensic testing are not foreign to Singapore. Between October 2010 and August 2011, it was discovered that the Health Sciences Authority (“HSA“) had used a DNA test reagent at a higher concentration than usual.9 Such a mistake could have caused a marginal reduction in the sensitivity of any DNA tests conducted using that reagent. This incident affected a total of 412 criminal cases.10 Experts confirmed that no false positives, nor in fact any substantial difference in test results arose from this mistake.11 Nevertheless, in light of the possible impact on legal proceedings and consequences to accused persons such an error could possibly cause, the HSA Board Review Committee was set up on 1 January 2012 to identify the relevant cases for re-testing.12 This committee comprised stakeholders from both the legal and forensic science communities.
|“As humanity’s understanding of science and its limits improve gradually over time, it is inevitable that more accurate methods will supersede older ones and it is entirely conceivable that outdated forensic methods may have an impact on the accuracy of convictions.”|
HSA consulted with the committee and eventually resolved the matter by retesting 87 criminal cases. All information from the re-testing was given to the Attorney-General’s Chambers to facilitate it in arriving at the appropriate prosecutorial decision in each case.13 Since then, the HSA Board Review Committee has recommended several measures to prevent a similar incident from happening.14 Nevertheless, this incident highlights the need to stay vigilant against possible mishaps.
A three-pronged approach?
How then, should such dangers be avoided, or if unavoidable, corrected?
It is recommended that a perennial committee should be the basic building block of a system to prevent injustices arising from inaccurate forensic practices. The three D.C. men secured their own exonerations through lengthy and tedious legal journeys, which included multiple tries at attempting post-conviction DNA re-testing.15 It is not simply the credit of the NACDL, the FBI or the Innocence Project that the inaccuracy of microscopic hair analysis as a forensic practice had been brought into the public spotlight; it was the perseverance and determination of the three men in clearing their names that uncovered a cause of wrongful conviction which may have potentially incriminated others like them. Regardless, it would be dangerous for our criminal justice system to expect the wrongfully convicted to rely solely on their own efforts and resources to get their due justice. A “perennial” committee such as the CCRC in the UK would have been invaluable source of legal recourse to the 3 wrongfully convicted D.C. men. Arguably, this reasoning applies with equal force to Singapore.
As humanity’s understanding of science and its limits improve gradually over time, it is inevitable that more accurate methods will supersede older ones and it is entirely conceivable that outdated forensic methods may have an impact on the accuracy of convictions. Of course, investigating officers and prosecutors are doing the best that they can with the prevailing tools at any particular time. However, when presented with the opportunity, obsolete forensic evidence should be reviewed using the latest, most accurate scientific methods and technology to ensure that there have been no miscarriages of justice. This particularly applies to cases which turn exclusively on the weight of such forensic evidence. To this end, it is heartening to see that the legal community in Singapore has recognised the importance of keeping up with scientific developments in their legal work.16
Forensic watchdogs in the US are now conducting reviews of crime labs across the country to determine whether law enforcement’s previous reliance on hair analysis has resulted in any grievous errors in forensic testing.17 However, it is submitted that such reviews should be done as a preventive measure, instead of a reactive one. After all, prevention is better than cure, particularly when a wrongful conviction is at stake.
Notwithstanding more advanced scientific forensic methods being employed, an unforeseeable margin of error, human or otherwise will always be present. On this front, ad-hoc committees still have a role to play. Ad-hoc committees form the reactive arm of the framework that prevents injustice arising from inaccurate forensic practices. When wide-reaching mistakes occur despite preventive measures, ad-hoc committees are best equipped to quickly identify all cases where the mistake could potentially have an impact on. Counter-measures can then be efficiently rolled out, so as to contain and eventually eliminate any adverse impacts the mistake would have on legal proceedings. In this regard, the HSA Board Review Committee is a good example of the ability of ad-hoc committees to rectify potential forensic errors posthaste.
In conclusion, the above analysis shows us that there is no one type of review committee that is fully equipped to deal with obsolete forensic methods. Each type of committee has its own strengths and shortcomings. A holistic approach to reviewing forensic methods would preferably adopt facets from both types of review committees: First, a perennial committee as the basic building block providing the relevant institutional framework and guidelines. Second, preventive measures involving regular reviews of the forensic methods employed in securing convictions, educating the various branches of law enforcement on the developments of new forensic methods. Lastly, the reactive arm in the form of ad-hoc committees, which has the ability to respond quickly and efficiently to any glaring mistakes identified. It is hoped that by synthesizing the best of each facet, we will create a framework in which wrongful convictions due to inaccurate forensic practices are minimized.
Jeremy Goh, Reynard Chua, both 22, and Ng Yeeting, 20, are second-year students at the National University of Singapore (Law), and one of the Investigation Teams in the Innocence Project.
1 The Innocence Project, Know the Cases: Browse Profiles: Santae Tribble, online: The Innocence Project <http://www.innocenceproject.org/Content/Santae_Tribble.php>.
2 The Innocence Project, Know the Cases: Browse Profiles: Donald Eugene Gates, online: The Innocence Project <http://www.innocenceproject.org/Content/Donald_Eugene_Gates.php>.
3 The Innocence Project, Know the Cases: Browse Profiles: Kirk Odom, online: The Innocence Project <http://www.innocenceproject.org/Content/Kirk_Odom.php>.
4 Spencer S Hsu, “U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors”, The Washington Post (18 July 2013), online: The Washington Post <http://www.washingtonpost.com/local/crime/us-reviewing-27-death-penalty-convictions-for-fbi-forensic-testimony-errors/2013/07/17/6c75a0a4-bd9b-11e2-89c9-3be8095fe767_story.html>.
5 The Innocence Project, Press Release, “Innocence Project and NACDL Announce Historic Partnership with the FBI and Department of Justice on Microscopic Hair Analysis Case” (18 July 2013), online: The Innocence Project <http://www.innocenceproject.org/Content/Innocence_Project_and_NACDL_Announce_Historic_Partnership_with_the_FBI_and_Department_of_Justice_on_Microscopic_Hair_Analysis_Cases.php>.
6 The Innocence Project , <http://www.innocenceproject.org/understand/Unreliable-Limited-Science.php>
7 The Innocence Project, News and Information: Cameron Todd Willingham: Wrongfully Convicted and Executed in Texas, online: The Innocence Project <http://www.innocenceproject.org/Content/Cameron_Todd_Willingham_Wrongfully_Convicted_and_Executed_in_Texas.php>
8 UK Ministry of Justice, About the Criminal Cases Review Commission, online: Ministry of Justice <http://www.justice.gov.uk/about/criminal-cases-review-commission>.
9 Health Sciences Authority, Press Release, “HSA Re-tests DNA Cases As A Precautionary Measure” (3 January 2012), online: Health Sciences Authority <http://www.hsa.gov.sg/publish/hsaportal/en/news_events/press_releases/2012/hsa_re-tests_dna_cases.html>.
10 Andy Ho, “The case for post-conviction DNA testing”, The Straits Times (14 January 2012), online: The Wrongful Convictions Blog <http://globalwrong.files.wordpress.com/2012/02/st-the-case-for-post-con-dna-testing1.docx>; Paul Lim, “Health Minister apologises for HSA’s DNA lab error”, AsiaOne (6 January 2012), online: AsiaOne <http://news.asiaone.com/News/Latest+News/Singapore/Story/A1Story20120106-320291.html>.
11 Supra note 4 at .
12 Health Sciences Authority, Press Release, “HSA Committee Completes Review and Releases Recommendations” (16 April 2012), online: Health Sciences Authority <http://www.hsa.gov.sg/publish/hsaportal/en/news_events/press_releases/2012/hsa_committee_completes.html>.
13 Ibid at -.
14 Ibid at -.
15 Supra note 2.
16 The Singapore Academy of Law organized a talk by Professor Maryanne Gary on 4th December 2013, titled Implications of Scientific Memory Research for the Law.
17 Yamil Berard, “Forensic science commission to review convictions based on hair samples”, Star-Telegram (11 August 2013), online: Star-Telegram <http://www.star-telegram.com/2013/08/11/5071996/forensic-science-commission-to.html>.