A dramatic, 11th-hour stay of execution in Mississippi earlier this spring gave way to an unprecedented immediate review of 27 federal death penalty cases.
Those are among the first of some 120 federal convictions and nearly 22,000 Federal Bureau of Investigation files that will be undergoing intensive review in the coming months, as officials question the veracity of certain witness testimony.
Our Birmingham criminal defense lawyers understand that at the heart of all of it is the question: Just how "expert" do "expert witnesses" need to be in order to be regarded as such? Also, to what kind of standards should be expect they be held?
There is ample evidence so far to suggest that FBI witnesses not only overstated their own expertise, but also the scope and accuracy of their scientific findings. These findings – and the testimony offered in court – led to hundreds of convictions.
Three men from D.C. were exonerated recently after it was revealed that the FBI-analyzed hair samples used to convict them were improperly upheld as conclusive matches. In fact, they were not. The men were innocent.
The inquiry could further stretch into a greater general question about the "expert" testimony we accept from a variety of sources, from forensic scientists to psychiatrists.
Officials with the FBI have said they are working to complete the probe and release the results by the end of the summer. The agency is working with the U.S. Department of Justice as well as the Innocence Project and the National Association of Criminal Defense Lawyers. Such a collaboration is almost unheard of, and it came after a Washington Post report last year. The expose detailed how the FBI had been aware for years that faulty forensic work by FBI examiners could have led to convictions of people who were potentially innocent. However, federal authorities hadn't taken any aggressive steps to investigate those issues or to notify defendants.
The problems stem primarily from forensic work involving hair samples. Specifically, the question is whether FBI "experts" exaggerated their testimony with regard to the significance of "matches" that were drawn from microscopic analysis of hair samples found at the scene of some crimes. Since the 1970s, reports gleaned from the FBI Laboratory routinely stated that association of two hair samples couldn't be upheld as a positive identification match. And yet, when FBI experts got up on the witness stand during a criminal case, the story was much different. Under oath, these individuals asserted with confidence that a correlation of these samples indicated a "near-certain" match.
Pulling some of those court records, there was testimony that included wording such as "to the exclusion of all others."
Similar problems were noted by whistle-blowers back in 1996 and again in 2003 when the FBI misidentified the fingerprint of an alleged terrorist in a high-profile case.
Regardless of what the FBI finds in its review, the decision to conduct the review is prompting several local and state labs to take similar action.
In a probe in Colorado, some of the lab workers have gone on record to say they were instructed by superiors to overstate their expert qualifications on the stand. It's unclear at this point how many convictions to which this might have led.
The bottom line of course is that forensic science as we know it today is imperfect. Scientists are imperfect and the term "expert" is one that should be used sparingly in a court of law.
Your defense lawyer has a responsibility to challenge all of this as it is presented before the court.
If you have been arrested in Birmingham, call Defense Lawyer Steven Eversole at (866) 831-5292.
The FBI Does Some Much-Needed Soul Searching About Just How "Expert" Its Expert Testimony Is, July 18, 2013, By Sam Brodey, Slate.com