Thursday, July 16, 2015

Justice Breyer in Glossip v. Gross on "flawed testimony from an FBI hair examiner"

Justice Stephen Breyer recently proposed that the Supreme Court reconsider the constitutionality of the death penalty. One of his concerns is that despite the level of scrutiny capital sentences are supposed to receive, innocent defendants may be executed. Justice Breyer's worry on this score cannot be dismissed as historically unfounded. Neither can it be written off as the predictable moaning of a bleeding-heart liberal, coming as it does from the "high court's raging pragmatist."

A related concern articulated by Justice Breyer is the "uncertainty as to whether a death sentence will in fact be carried out" and when that day will arrive. "Willie Manning," for example, "was four hours from his scheduled execution before the Mississippi Supreme Court stayed the execution. See Robertson, With Hours to Go, Execution is Postponed, N.Y. Times, Apr. 8, 2015, p. A17. Two years later, Manning was exonerated after the evidence against him, including flawed testimony from an FBI hair examiner, was severely undermined. Nave, Why Does the State Still Want to Kill Willie Jerome Manning? Jackson Free Press, Apr. 29, 2015."

Without questioning the main point about the uncertainty of confinement, I want to probe the use of the Manning case -- or rather cases -- as an exoneration in which "flawed testimony from an FBI hair examiner was severely undermined."  Justice Breyer has been called a "technocrat," and it is not surprising that he would call attention to the hair evidence against Manning and to "the more general problem of flawed forensic testimony" as illustrated by reports that "FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review," including capital ones like Manning's. But what was the erroneous hair evidence against Manning, and in what sense was it erroneous?

The answers are complicated, and it turns out that hair evidence played no role in the case in which Manning was exonerated. Manning was convicted in not one, but two, capital cases. The hair evidence applies to a different pair of murders for which Manning has yet to be exonerated, and it is hard to see how the hair testimony there has been "severely undermined." For clarity, I discuss the separate cases separately. 

I. The Jimmerson-Jordan Murders

According to the article cited by Justice Breyer,
An Oktibbeha County jury convicted Manning for killing nonagenarian Emmoline Jimmerson and her daughter, Alberta Jordan, in the winter of 1992. The women were beaten and their throats slashed during an apparent robbery attempt at their Brookville Gardens apartment in Starkville. Manning was convicted of the crime at age 26 and sentenced to death.

The state's star witness, a man named Kevin Lucious, told police and later testified in court, that he saw Manning enter the victims' apartment from his own apartment, but police found the apartment where Lucious claimed to live was vacant at the time of the crime. The apartment manager also had no record of Lucious being a tenant.

Presiding Justice Michael K. Randolph, on behalf of the supreme court's majority, ordered the case back to circuit court for a new trial, agreeing with Manning's attorneys that "there is no question that defense counsel would have had the opportunity to meaningfully impeach Lucious' testimony that he lived in the apartment at the time of the crime and saw Manning enter the victims' apartment." ...

[Later], Luscious recanted most of his statements, saying he only testified because he feared being charged with the crime himself. ... Luscious claimed that he told Sheriff Bryan that another man, Tyrone Smith, had confessed to the murders. With the state's material witness now changing material parts of his story, the case had to be thrown out [rather than retried].
Neither this article nor the entry in the University of Michigan's National Registry of Exonerations refers to any forensic-science evidence in the case. The Registry lists the factors that contributed to the conviction as follows: "perjury or false accusation, official misconduct."

II. The Miller-Steckler Murders

In 1992, two Mississippi State University students, Tiffany Miller and Jon Steckler, who were dating, were shot and killed near the fraternity house in which one of them lived. Steckler's fraternity brother had a car that was burglarized at around the same time. The state produced evidence that Manning, who had a record of convictions for theft and other crimes, was distributing items stolen from the car. Manning conceded that he was selling stolen goods but said that he did not know who stole them. Among the other evidence introduced against Manning was hair found in Miller's car. The car was found near campus, and it had been used to run over Steckler.

An FBI criminalist testified that he could "microscopically determine if the hairs look alike and determine with some degree of certainty, although not absolutely, but with some degree of certainty if hairs, for example, found in vacuum sweepings from an automobile originated from a particularly named individual." Manning v. State, 726 So.2d 1152, 1180 (Miss. 1998). He also testified that hairs from the car "exhibited characteristics associated with the black race." Id. The examiner "went on to testify that as the hairs were only fragments, he could not compare the hairs to a known sample, and that he was limited to a determination as to the racial characteristics of the hair." Manning v. Epps, 695 F.Supp.2d 323, 380 (N.D. Miss. 2009). This determination was significant because the two victims were white, and Manning is black. Knowing that the hair had the latter "racial characteristics" made it more probable that it was Manning's and thus that he was in the car.

The DOJ issued not one, but two letters about the 1994 testimony of its agent. The first letter, dated May 2, 2013, reported that
the microscopic hair comparison analysis testimony or laboratory report presented in this case included statements that exceeded the limits of science and was, therefore, invalid. While this case did not involve a positive association of an evidentiary hair to an individual, the examiner stated or implied in a general explanation of microscopic hair comparison analysis that a questioned hair could be associated with a specific individual to the exclusion of all others -- this type of testimony exceeded the limits of the science. The examiner also assigned a statistical weight or probability or provided a likelihood that, through microscopic hair comparison analysis, the examiner could determine that a questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of a positive association that could lead the jury to believe that valid statistical weight can be assigned to n microscopic hair association -- this type of testimony exceeded the limits of the science. (A copy of the documents upon which this determination was based is enclosed.)
I have not seen a copy of the testimony, but the letter does not suggest that the testimony used to link Manning (and all other African Americans) to the hair in the car was erroneous or undermined. Apparently, the criminalist overstated the power of hair features as the basis for a probabilistic or categorical statement that an individual was in fact the source of a hair, but as we saw, the expert here shied away from either of those statements. He testified only to the race of the unknown individual whose hair was in the car.

Two days later, the DOJ distributed a second letter referring to an "additional error." This letter addressed the racial identification. One might well wonder about the "racial characteristics" of hair. How definitive of race are these features? Can criminalists really zero in on African Americans this way?The letter had this to say:
We have determined that the microscopic hair comparison analysis testimony or laboratory report presented in this case included additional statements that exceeded the limits of science and was, therefore, invalid. In response to inquiries regarding whether the errors identified in the notification letter had any bearing on the examiner’s opinion regarding the racial classification of the hair, the FBI states the following: The scientific analysis of hair evidence permits an examiner to offer an opinion that a questioned hair possesses certain traits that are associated with a particular racial group. However, since a statistical probability cannot be determined for classification of hair into a particular racial group, it would be error for an examiner to testify that he can determine that the questioned hairs were from an individual of a particular racial group. Thus, an examiner cannot testify with any statement of probability whether the hair is from a particular racial group, but can testify that a hair exhibits traits associated with a particular racial group. (A copy of the FBI Microscopic Hair Analysis Report, dated May 4, 2013, is attached.)
This paragraph is hardly a repudiation of the testimony that the hairs from the car "exhibited characteristics associated with the black race." To the contrary, it endorses this testimony as a permissible "scientific analysis." (It is not clear to me that this assessment of the science is correct, but I have not researched the scientific literature.) What "would be error," in the DOJ's view, is "any statement of probability whether the hair is from a particular racial group." But it is impossible to tell from the letter whether the FBI agent gave any such testimony. The federal district court's opinion denying Manning's habeas corpus petition makes it sound like the testimony was not of the sort later deprecated by the FBI. Manning v. Epps, 695 F.Supp.2d 323, 380 (N.D. Miss. 2009).

The letter added that the FBI was prepared to perform DNA tests on the hairs or other biological material if desired. The Mississippi Supreme Court called off the execution to allow Manning "to proceed in the circuit court with his request for DNA testing ... ." Manning v. State, 119 So.3d 293, 293 (Miss. 2013). In 2015, Manning's lawyer "said several items have been sent to a lab in Houston, Texas, for analysis" and that "the timing of the testing and issuing of results is up to the lab and the FBI." 1/.

It is entirely possible that DNA testing will soon exonerate Manning in the Miller-Steckler murder case (to the extent of showing that the hair in the car was not his). As of May, 2015, this had not happened. 2/ If it does, it would mean that either the original determination of the racial characteristics of the hair was wrong -- something that the FBI has not conceded -- or that the determination was correct but that Manning was not the person whose hairs were in the car -- something that the criminalist never purported to resolve.

  1. R. I. Nave, Why Does the State Still Want to Kill Willie Jerome Manning? Jackson Free Press, Apr. 29, 2015, available at
  2. Maurice Possley, Willie Manning, Nat'l Registry of Exonerations, ("Manning remains on Mississippi’s Death Row for the Miller-Steckler murders as the physical evidence in that case was still undergoing DNA testing as of April 2015.").


  1. Perhaps that's "something that the criminalist never purported to resolve," but posing that implication is of course the reason the prosecutor presented his or her testimony. When they're reviewing these cases, the issue isn't just whether the forensic examiner erred but also if prosecutors overstated or misused the evidence to ask the jury to draw invalid conclusions. (In Texas' review of state-level examiners, with which I'm more familiar, they examine both the forensic testimony AND the prosecutor's closing arguments.)

    If the DNA testing comes back excluding Manning, IMO it'd be fair to say that the use of hair testimony in his case has been "severely undermined," since it would have treated exculpatory evidence as inculpatory.

    That said, good on you for distinguishing the cases and catching Breyer's error. These discussions deserve the rigor and clarity you're attempting to bring to them.

  2. Interesting comment. My thoughts it are in the next posting, entitled "Validity, Overclaiming, and Error: More on Willie Manning's Exoneration," at

  3. I’m by no means an expert on any of the issues here, but you may find the following of interest:
    A letter from Cellmarks Forensics, Dallas, (June 8 2015) shows the DNA evidence being tested as: swabs from the rape kit, pubic hair and pubic hair combings, fingernail scrapings and hair from the victims’ hands (though the last of these could not be tested because the box was empty). The letter also mentions arrangements for fingerprint analysis. Hair from the victim’s car is not mentioned.
    Neither the order granting a stay of execution nor the order granting leave to proceed with DNA testing and fingerprint comparison gives any reason for these decisions.

    1. Thanks for this link to Cellmark's interim report. I suspect that the hairs are in the "other items of evidence" that the laboratory has not gotten to yet because it is hoping for a definitive result from some of the items you list. We'll have to wait and see what emerges.

    2. I think you're right. Now that I've checked, I see that 'the hairs found in Tiffany Miller’s car' is an item on the list of evidence that Mr Manning asked the court for permission to test re DNA. I would imagine that the items selected for initial testing are more central as regards establishing innocence.