Sunday, July 19, 2015

What the FBI Hair Examiner Said About Race in State v. Manning

Two previous postings discussed the meaning and import of FBI testimony about hair in a trial of Willie Manning. I questioned Justice Breyer's suggestion that the exoneration in one of these cases came about in part because "the evidence against him, including flawed testimony from an FBI hair examiner, was severely undermined." 1/ The evidence in the case that led to the overturned conviction did not include any hair evidence at all.

The verdict in the other case -- the one with hair evidence -- is still is question. Cellmark Forensics is trying to find and analyze DNA from a rape kit and fingernail scrapings. At a later point, the laboratory may turn to "other items of evidence," including, presumably, the hair fragments from the car of one of the victims. 2/

Testimony about this hair figured prominently in the trial. In closing, the prosecutor asked "how many [people] could leave hair fragments in the car, hair fragments that came from a member of the African-American race because that's what they find when they vacuum the sweepings of the car, that's what they find in both significantly the passenger's seat and the driver's seat, just like it would be if the man rode out there as a passenger and came back as a driver . . . ." 3/

The prosecutor was able to make this argument because of testimony from an FBI examiner about the perceived racial characteristics of the hair. In my posting of July 16, I wrote that the Department of Justice's letter of May 4 confessing scientific error
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." ... 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. 4/
Today, I obtained the motion that persuaded the Mississippi Supreme Court to stay the execution and to order DNA testing. 5/ The FBI agent's testimony is appended to it. The examiner not only presented the characteristics of the hairs as associated with race ("valid" according to the DOJ), but added that "these hairs were hairs from an individual of the black race" 6/ -- not "valid."

  1. David H. Kaye, Justice Breyer in Glossip v. Gross on "flawed testimony from an FBI hair examiner", July 16, 2015, Forensic Science, Statistics & the Law
  2. Letter from Cellmark Forensics to Robert L. Mink, June 5, 2015, available at
  3. Motion to Stay Execution and Set Aside Convictions, Second Motion for Leave to File Successive Petition for Post-Conviction Relief, and Motion in the Alternative for Other Forms of Relief, at 5, Manning v. Mississippi, No. 2013-DR-00491-SCT (May 6, 2013).
  4. Kaye, supra note 1.
  5. Motion, supra note 3.
  6. Transcript at 1048.

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