In Landmark Decision, Massachusetts Court Vacates Conviction Based on Erroneous FBI Microscopic Hair Testimony
Ruling Marks First Time a Court Has Conducted a Thorough Review of
Erroneous Evidence Identified through Government FBI Hair Microscopy Review
(Hampden, MA – February 3, 2016) Late last Tuesday, a Massachusetts court vacated George Perrot’s 1992 rape and burglary convictions based on erroneous testimony of a FBI agent who greatly overstated the significance of a hair used to connect Perrot to the crime scene. Perrot was made aware of the errors in the agent’s testimony as a result of a government review of cases where FBI agents gave either false testimony or submitted false reports regarding microscopic hair analysis used to connect a defendant to a crime.
This is the first case to be litigated where the prosecution disputed the results of the review finding that the agent provided erroneous testimony. Before issuing its 79-page ruling, the court conducted a two-day hearing where experts on both sides of the issue were permitted to testify regarding the scientific merits of the agent’s testimony. Last week’s decision will likely greatly influence how future courts grappling with the errors identified through the review handle cases where the evidence was central to the conviction.
“The decision is vitally important because it will be followed by many other courts around the country which will have to decide how to deal with this erroneous testimony,” said Chris Fabricant, director of strategic litigation for the Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University. “While we don’t know how many cases may ultimately be reversed because of the use of this scientifically invalid evidence,” said Fabricant, “we know from the preliminary findings of the review that FBI agents, over a period of more than two decades, erroneously testified or provided erroneous reports in more than 95% of the cases where microscopic hair analysis was used to connect a defendant to a crime.”
At the urging of the Innocence Project and the National Association of Criminal Defense Lawyers, the FBI and Department of Justice were motivated to conduct the review after three men,
, were exonerated by DNA evidence in three separate cases where different FBI analysts had provided scientifically invalid testimony regarding hair analysis. Erroneous microscopic hair analysis contributed to more than 20 percent of the nation’s 337 DNA exonerations.
The government identified nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis. As of March 2015, the FBI had reviewed approximately 500 cases. The majority of these cases were trials, and the transcript of examiner testimony was reviewed. Some of these cases ended in guilty pleas, limiting the review to the original lab report. In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 or 96% of the cases.
Pursuant to the review, Perrot was notified that the agent in his case, Wayne Oakes, erroneously testified at his trial. Perrot had been convicted of the November 30, 1985, rape and burglary of Mary Prekop based at least in part because of the testimony of Oakes who claimed that a hair from the crime scene was “consistent with” coming from Perrot.
His legal team filed a motion on July 8, 2014, seeking a new trial based on six errors that were identified in the government’s letter to Perrot. In September 2015, the court convened a hearing where the prosecution and defense presented experts to testify about nature of microscopic hair analysis, the evolution of the scientific community’s understanding of the limits of this technique since the time of trial and the significance of the erroneous testimony. After hearing the evidence, the court ruled last week that Perrot is entitled to a new trial “because of the introduction of hair evidence that in numerous and material respects exceeded the foundation of science.”
“Mr. Perrot and his family are extremely pleased with the decision. While this ordeal isn’t over yet, he is relieved that the court has recognized that his conviction was based on false testimony and that he will have another opportunity to prove that he is innocent as he has always maintained,” said Dana Delger, an attorney with the Innocence Project’s strategic litigation department who has been working on the case.
The court declined to reverse a separate burglary conviction against Perrot stemming from the same night. His lawyers are still weighing the legal options on how to best proceed regarding those charges. There was no microscopic evidence presented in that case.
A bail hearing for Perrot is scheduled for Monday, February 8, 2016.
A copy of the decision is available
. Perrot was represented by Lisa Kavanaugh, Kirsten Mayer, partner at Ropes & Gray, and Dana Delger and Chris Fabricant at the Innocence Project.
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