Local cases overlooked in national review of flawed hair evidence

In “Under the Microscope: The FBI Hair Cases,” Fault Lines looks at how, for decades, the FBI used the flawed forensic method of microscopic hair analysis to convict thousands of criminal defendants. The film airs on Monday, Aug. 17, at 10 p.m. Eastern time/7 p.m. Pacific on Al Jazeera America. | Click here to find Al Jazeera in your area.

On May 15, 1989, outside Charlotte, North Carolina, an elderly woman named Modine Wise was found naked and beaten in her bedroom. Dazed, she could only remember that the intruder who attacked her was “a boy” with “blond” or “blondish-brown” hair.

Ten months later, Timothy Scott Bridges, a 23-year-old white man, was arrested and charged with her rape and assault.

At Bridges’ trial, Elinos Whitlock, a trace evidence expert from the Charlotte-Mecklenburg Police Department, testified that he could make a “strong identification” between Bridges’ hair and two hairs found at the crime scene. Furthermore, he told the jury that he had studied approximately 500 to 800 Caucasian head hairs in his career and he had never failed to differentiate between two of them under a microscope. The chance that two Caucasian people could have indistinguishable head hair, he testified, was 1 in 1,000.

Timothy Scott Bridges was convicted and given a mandatory life sentence. He remains in North Carolina prison.

The kinds of claims that the forensic examiner made at Bridges’ trial are now widely understood to be scientifically worthless. Since 1989, at least 74 Americans convicted in cases involving microscopic hair comparison have been exonerated by DNA testing.

In response to those exonerations, the Department of Justice is currently reviewing more than 2,500 criminal cases where testimony of a FBI hair analyst contributed to a conviction. It announced in April that in cases reviewed so far, FBI testimony was erroneous 95 percent of the time.  

Crucially, in federal cases with invalid testimony, the DOJ has agreed to waive procedural obstacles for defendants to appeal. But because the hair expert at Bridges’ trial worked for local law enforcement, the DOJ is not considering his case.  

Bridges’ conviction is one of thousands involving hair analysis by local or state examiners for which no systematic government review presently exists.

“The hair comparison audit must be extended to the states,” said M. Chris Fabricant, director of special litigation at The Innocence Project and one of Mr. Bridges’ attorneys. “The overwhelming majority of violent crimes are prosecuted by local prosecutors using local crime labs. Those violent crimes are where hair comparison evidence was most likely to be introduced.”

In 2013, the American Society of Crime Laboratory Directors/Laboratory Accreditation Board published a memo urging state and local labs to review their hair analysis case files. Since then, two states, Texas and Massachusetts, have begun that process.

In 2014 Texas created a hair microscopy review panel, which is now reviewing about 700 cases from 20 crime labs across the state. In Massachusetts, the state police announced in May 2015 that it would launch an inquiry into cases between 1980 and 2000. Once hair convictions are identified, state prosecutors, the state public defender’s office and the Innocence Project will jointly review them.

But with little action in other states, some criminal defense groups have begun their own reviews. Christine Mumma, director of the North Carolina Center for Actual Innocence, said that her organization is currently assessing about 1,700 cases in which the North Carolina state lab conducted microscopic hair comparison without the benefit of DNA testing.

Many old cases, however, present a major difficulty: the physical evidence no longer exists.

“The question is: Is the evidence still there?” Mumma said. “If you can't test the evidence, then it's just this questionable testimony.”

Timothy Scott Bridges’ case falls into this category. In 2005, the hair evidence from the crime scene was destroyed in state custody.

Sandra Levick, a public defender in Washington, D.C., said that lack of physical evidence is a huge barrier to relief for a defendant, even if invalid testimony helped persuade a jury.

In the last six years, her work has led to five exonerations in hair microscopy cases. All of them included DNA testing.

“I think the next challenge,” she said, “is to take on those cases where there's been arguably a due process violation in materially false testimony being used to convict – where the result was an unfair verdict, regardless of whether one can prove actual innocence.”

In October 2014, Timothy Scott Bridges filed a motion in Mecklenburg County Superior Court, arguing for a new trial because his constitutional right to due process was violated when the state presented evidence that was scientifically flawed. The brief contends that the recently established consensus that hair microscopy is unreliable constitutes “newly discovered evidence.”

“There's generally a reluctance to go back and reexamine convictions,” said The Innocence Project’s Fabricant. “But the criminal justice system must be able to address these problems. Due process precludes the admission of false and misleading evidence. Courts must open the courthouse doors, and accept these pleadings and consider the merits of the case.” 

If the court were to find that Bridges’ rights were violated, the burden would then shift to the state to prove that he would have been convicted even without the hair testimony.

Bridges previously appealed his conviction in 1992, arguing that Elinos Whitlock’s testimony should never have been admitted. The state court of appeals held that Bridges was not entitled to a new trial because he failed to show that the testimony had a prejudicial effect.

Whitlock left the Charlotte police in 1998, and now works as a financial advisor. He did not respond to requests to comment on the case.