Nonprofit Schuster Institute Sparks First Overturn of a Conviction Based on FBI’s Flawed Hair Analysis

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January 26, 2016; WCVB-TV (Boston, MA)

On Tuesday, January 26th, a Massachusetts judge has, for the first time, overturned a conviction on the grounds that hair analysis as a science cannot produce conclusive evidence admissible in court today, potentially affecting thousands of other similar cases on appeal. George Perrot, 48, was convicted at the age of 18 for unarmed robbery and rape in 1987 and has been appealing the verdict for the last thirty years based on inadequate police investigation and the use of hair evidence at trial, a now-discredited practice that has led the FBI to review thousands of cases that relied on such expert testimony.

Judge Robert J. Kane admits in the thorough and the researched decision that “justice may not have been done” in Perrot’s case, overturning the conviction based in part on the use of the original hair evidence.

As is often the case, the voice behind the campaign for Perrot’s innocence was a nonprofit, the Schuster Institute for Investigative Journalism at Brandeis University in Massachusetts. In particular, it was the student researchers and staff involved with the Justice Brandeis Law Project who have helped Perrot, Angel Echavarria, and other individuals receive the attention their cases needed. Perrot’s specific case was brought to Florence Graves, director and founder of the institute, back in 2011 by Sherrie Frisone, whom the institute credits as first recognizing the flaws in Perrot’s case. Echavarria was exonerated last year after more than twenty years in prison. Lisa Kavanagh, director of the Innocence Project at the Committee for Public Counsel, and lawyers from law firm Ropes & Grey are currently representing Perrot.

Before Judge Robert J. Kane’s decision to overturn Perrot’s conviction, the Massachusetts Supreme Court has already overturned his conviction once before, but he was tried and convicted again in 1992. Since then, as noted by Judge Kane’s decision, the 2008 National Academy of Science voiced concerns about hair analysis, leading to the FBI’s admission in 2013 that the testimony used to convict thousands of individuals was scientifically invalid, including FBI analyst Wayne Oakes’s testimony in Perrot’s trial.

“It is well understood now that hair analysis can only tell you so much,” said Kirsten Mayer, an attorney from Ropes and Gray and a member of Perrot’s legal team. “When Mr. Perrot was convicted, the FBI expert who testified at his trial overstated what the limits of science are now understood to be.”

While it is possible to extract a DNA profile from a hair strand and root, the hair analysis used in Perrot and other cases only compared the characteristics and physicality of hair strands found at the crime scene to the suspect’s. In Perrot’s case, FBI expert Oakes testified, “The hair found on the sheet exhibits all the same microscopic hair arranged in the same way as the characteristics present in the known hair from [Perrot]. I conclude that the hair was consistent with coming from the defendant.” Oakes also testified something similar in Perrot’s second trial. In fact, he said, “It’s been my experience in 10 years it’s extremely rare I will have known hair samples from two different people I can’t tell apart.”

In reality, Oakes’s testimony has been debunked, and five defendants have already been exonerated on the erroneousness of the science. Among those, Kevin’s Martin’s conviction was vacated last year after newly tested DNA evidence contradicted the hair analysis used in his case. It’s possible Perrot may be next in line.

With his conviction overturned, prosecutors in Hampden County, Massachusetts, must decide if Perrot will be tried in court for a third time. Judge Kane notes in his decision, “Oakes’s hair opinions presented enormously influential testimony.” Undoubtedly, an FBI analyst providing expert testimony of what appears to be definitive scientific proof a defendant is guilty would have been incredibly influential to a jury. The significance of this testimony in Perrot’s case would not have been lost on the prosecutors who have been on the other side of Perrot’s appeals. Yet, Hampden prosecutors have fought against a retrial for years, despite knowing the fallibility of hair analysis.

Given the implications of the faulty science, some, like Chris Fabricant from the Innocence Project, are taking real issue with states’ inability to address the possible wrongful convictions that could have resulted from these testimonies. “Tens of thousands of people may have been caught in this trap,” said Fabricant. “When even the FBI has admitted liability, then states who were trained to use this discredited technique are now legally and morally obligated to step up to the plate.”—Shafaq Hasan

Editor’s Note: The writer of this article was employed by the Schuster Institute for Investigative Journalism as a student researcher from 2011 to 2014 and worked tangentially on George Perrot’s case during her time there.