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Spencer Hsu, investigative reporter for The Washington Post, was the keynote speaker at the 2018 Georgia State Law Review Symposium. (Photo: Courtesy of Georgia State University)

“Many times our legal system has blind spots that those of us who are in the trenches—the lawyers, judges, forensic scientists—don’t necessarily see or uncover even when they are right in front of us,” said Jessica Gabel Cino, associate dean for academic affairs and associate professor of law. “So we have to rely on investigative journalism to bring the issue to light and to also bring accountability to bear. The journalists who cover those topics pull back the curtain on the key limitations of the criminal justice system that we don’t readily divulge on our own…revealing wrongdoing on all levels and exposing structural deficiencies that must be addressed.”

Spencer Hsu, investigative reporter for The Washington Post and keynote speaker at the 2018 Georgia State Law Review Symposium, is one of those reporters, Cino said.

His 2012 series on weaknesses in forensic science was a finalist for the Pulitzer Prize gold medal for public service. He reported that the Justice Department had been aware for years that certain forensic testing was flawed, which may have led to innocent people being convicted. The focus was on the unit dealing with miscroscopic hair analysis.

“What’s remarkable is this was the gold standard of the gold standard, it’s the FBI lab, it’s the Department of Justice,” Hsu said in the keynote luncheon. “This was a unit that viewed as the next best thing after fingerprinting, especially in violent crimes.”

The Justice Department had reviewed a limited number of cases, focusing mainly on one examiner, Special Agent Michael Malone. He had routinely given identical assurances to juries that he had examined the hairs of 10,000 people in his career and that there were only two or three occasions where the hair from two different people were so similar that they couldn’t be distinguished. A review of non-FBI scientists found that Malone testified beyond the limits of science and exaggerated the misstated research.

“Those assertions of a likelihood of a match, implications of statistical certainty, and the liability of the theories of statements were misleading if not outright false,” Hsu said. “In reality, examiners didn’t compare every hair they ever tested to ever other one, only a pair at a time.” They also didn’t keep full notes, statistics or photographs.

Because of its focus on Malone, the department had not reviewed many other cases of other examiners. Hsu, believing the practices were more systemic, dug deeper. “We found others who testified as Malone did,” he said.

In addition, the Justice Department had failed to notify defendants of the flawed forensic work.

“This is also a story about how agencies limited disclosure of past problems because of the adversarial system,” Hsu said.

After Hsu’s stories ran, the Justice Department and FBI took steps to review the cases. Three years later, they formally acknowledged that nearly every forensic hair examiner gave flawed testimony of the discredited technique in almost all trials, offering evidence and overstating matches in a way that favored prosecutors 95 percent of the time. Among those trials included 32 defendants sentenced to death.

While there was abundant evidence of many of the defendants’ crimes, and many pled guilty, the review of cases has also led to exonerations of people who had served decades in prison.

The question, Hsu said, is why it took so long to discredit this junk science.

“In 1974, researchers concluded that visual hair comparisons were so subjective that a different panelist can reach different conclusions about the same hair, in fact even the same examiner examining the same hair could reach different conclusions at a different time,” he said.

In 1984, the FBI acknowledged that hair can’t be used as a positive match for positive identification, and in 1996, the DOJ stopped declaring matches based on visual comparison alone.

“Part of the problem here is a ‘prove me wrong’ attitude, or an attitude that ‘we know the evidence is good, but we don’t know how to say how good,’” Hsu said.

Without pushback and more science and research, the faulty system went unchecked.

However, now there are many are working to strengthen the scientific integrity of the forensic science system despite any professional toll it may take on them personally, or how long it might take. It’s important to continue the conversations such as the ones at this symposium, Hsu said, to uphold the principles of liberty, equality and justice for all.

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