This morning's Washington Post article titled FBI overstated forensic hair matches in nearly all trials before 2000 doesn't answer the question. Instead, it simply cites the Innocence Project and the National Association of Criminal Defense Lawyers as the sources of data indicating that FBI experts "overstated" the significance of hair comparisons on a wide scale.
According to the Post, "Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far."
It is noteworthy that no representatives of the Department of Justice, including the FBI, are quoted in the Post's article.
The FBI previously announced a partnership with the Innocence Project and the National Association of Criminal Defense Lawyers to assist in the review of past forensic hair comparisons. But it is likely that having a representative of the Innocence Project publicly state that "The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster" was not part of the deal.
A serious problem has emerged for our justice system over the last two decades. A new, hybrid form of legal practice that involves both professional jurisprudence and unrestrained activism has been permitted to author a one-sided narrative about the fairness of our criminal justice system with virtually no accountability nor application of generally accepted professional standards.
This observation, in itself, is certainly not evidence that the claims against the FBI are entirely without merit. But as the scientific enterprise requires, some degree of cynicism is warranted given the win-at-all-costs legal culture that pervades criminal justice in America.
A reasonable question can be asked of the Innocence Project and the National Association of Criminal Defense Lawyers: are you overstating your results?
Post-conviction litigation is certainly a legitimate and necessary function that brings relief to individuals who've become victims of an imperfect system. But it's becoming increasingly clear that it is a dangerous game with few rules and even fewer checks and balances to prevent the influences of bias and the cultural incentives to crush and demoralize one's legal opposition.
The recent railroading of Alstory Simon in Illinois, at the hands of innocence activists, validates this assertion.
Long before any study was to be conducted on cases worked by the FBI or any other forensic science laboratory for that matter, national standards of care and professionalism should have been agreed upon for how to review scientific evidence in past convictions.
So far this has not happened, and the risks are numerous.
Injustices should be rectified, of course. But the Washington Post was perhaps negligent in not explaining the considerable progress that has been made in forensic science over the last 15 years. This omission left its readers with a skewed perception of the state of the art.
It is time to establish standards of professional practice and conduct for those engaged in the post-conviction review of scientific evidence and the reporting of their results, either in the courtroom or in the press. This would build much needed confidence in the practice of post-conviction litigation, elevating its stature from activism to professionalism.
Don't count on the FBI or the Department of Justice to have much to say about the Post's article. When there are no rules to the game, there is no sense in playing it.