After learning that its own hair and fiber analysis methods were faulty, the FBI has tried to identify all criminal convictions that relied on such evidence. The agency has initiated a nationwide review of all cases involving such evidence before 2000, when the FBI switched to the use of mitochondrial DNA analysis instead of the older techniques.
The FBI has acknowledged at least 13 flawed prosecutions in Wisconsin, according to the Wisconsin Center for Investigative Journalism. Those are among hundreds that have been discovered nationwide. The Center suspects there may be more, but writes that its efforts to identify these wrongful convictions "have been thwarted by district attorneys" and U.S. Attorneys who have shielded prosecutorial records and been non-responsive to Freedom of Information Act requests.
Last year, former FBI director James Comey entreated governors to ensure that state prosecutors notified all defendants whose cases were affected by the faulty evidence. Several states including Arizona, Iowa and Massachusetts, immediately began reviewing cases. Wisconsin did not, according to the Center.
The Wisconsin Department of Justice said it is not planning to conduct a proactive review. Instead, it will review cases whenever they are brought to the agency's attention.
"If you don't look for them, you're never going to find them," counters the head of the Arizona Justice Project which is involved in the FBI review.
When Arizona performed its review, it quickly found 218 cases in which hair or fiber analysis had tied a suspect to a crime. It is now reviewing how the evidence was presented in those cases in order to determine if the use of the evidence was crucial to the conviction.
In Iowa, 20 cases have been identified despite flooding that damaged the paper records at several major courthouses. The state remains committed to finding the trial transcripts in more cases.
In Massachusetts, 46 cases have already been flagged as needing review. That's in spite of the fact that many of the records are in the process of being digitized for more efficient review.
Would Wisconsin find more than 13 questionable cases if it proactively went through its past case files? It seems very likely. Read the Center's two investigative pieces at the links above and make up your own mind.
Whenever someone is convicted based on evidence that is later found to be faulty, the situation is very serious. The person may have been falsely convicted and suffered years or decades wrongly incarcerated. If so, the real perpetrator of the crime may remain at large.
Prosecutors have an ethical duty to seek justice, not just convictions. Our district attorneys and the U.S. attorneys serving our district should reexamine these cases.