RALEIGH, N.C. (WBTV) – The North Carolina State Crime Lab used now-debunked science to help prosecutors send innocent men to prison. Efforts to review cases where that science was used have been stymied by Attorney General Josh Stein, despite promises to do so.
The cases against each of them had relied on testimony from scientists at the State Crime Lab using microscopic hair comparison. Essentially, the crime lab said, hair from the men matched hair found at the crime scene.
Microscopic hair comparison without DNA confirmation is now known to be unreliable. The FBI and crime labs across the country have undertaken an effort to review old cases where the technology was used to win convictions in an effort to identify instances where the faulty forensic evidence sent innocent people to prison.
Then-FBI Director Jim Comey wrote a letter in 2016 highlighting the problematic use of microscopic hair comparison at the FBI crime lab through 1999 – which the FBI taught to staff at state labs across the country – and urging governors and other state officials to review microscopic hair comparison cases from their labs.
“I encourage you to ask your state and local labs to ensure their examiners were staying within the bounds of science and, if they weren’t, to take appropriate corrective action,” Comey wrote.
“Like you, we care deeply about justice, which is both about obtaining convictions and making sure that mistakes are fixed.”
But, years later, that review has not happened in North Carolina. And efforts to start a review of these cases had been stonewalled until questions from WBTV for this story.
Flawed science, little action
Chris Mumma has spearheaded efforts to review microscopic hair comparison cases in North Carolina in her role as executive director of the North Carolina Center on Actual Innocence.
Letters provided by Mumma show she has worked with the state crime lab to try and get funding and other support to review the crime lab’s files to identify cases where microscopic hair comparison was used since 2014.
While the technology was used into the early 2000′s, a majority of the cases where crime lab staff overstated the science to win convictions happened before 1990.
Reviewing pre-1990 case files is an arduous task because the files are still on paper in a warehouse.
That fact has been cited by the last two attorneys general – Roy Cooper and Stein, who oversee the state crime lab – and crime lab staff as a barrier to reviewing the files.
But that didn’t stop Stein from writing Mumma in May 2017, shortly after he took office, pledging to work towards a comprehensive review of all microscopic hair comparison files.
Two years later, in June 2019, Mumma’s organization entered into an agreement with the N.C. Department of Justice to conduct a review of all microscopic hair comparison cases.
Under the agreement, NCDOJ agreed to “when available, provide the Center with a list of pre-1990 names of cases which underwent microscopic hair comparison,” among other things.
In exchange, NCCAI would review which cases from the list resulted in convictions, narrow those cases to ones where convictions hinged on the microscopic hair comparison and then review those case files.
The list of pre-1990 cases has never been produced.
“I get words of cooperation, I don’t get actions of cooperation,” Mumma said of her work with the crime lab and NCDOJ.
Mumma said her organization offered to pay for interns to review the paper files and help digitize them under the direction of NCDOJ staff but that offer was rebuffed.
Attorney General refuses to answer questions, takes action
Stein, through a spokeswoman, refused seven requests since February 10 to answer questions for this story on camera.
Initially, in an emailed statement on February 12, Stein’s spokeswoman said all microscopic hair comparison cases had already been reviewed.
“The North Carolina State Crime Lab (SCL) has conducted a thorough review of cases that included testimony related to hair analysis,” spokeswoman Laura Brewer said.
But weeks later, after additional questions from WBTV for this story, Stein’s office unveiled a plan to review the pre-1990 paper files.
On March 2, the day before this story was set to run, the director of the state crime lab sent a letter to Mumma informing her that the crime lab’s ombudsman, Sarah Jessica Farber, would oversee a review of the files.
“Extensive searching will be required to locate the cases in which MHC was conducted,” crime lab director Vanessa Martinucci wrote in the letter.
“Therefore, it is yet to be determined how long this project will take to complete.”
In a new statement sent to WBTV along with the March 2 letter, Brewer said more work hadn’t been done to review the pre-1990 case files because of a lack of funding.
“As you know, the Lab is extremely under resourced and continues to ask the Legislature for funding for additional scientists,” Brewer said. “In addition, in 2017, DOJ experienced a $10 million budget cut. This has led to some work taking longer than is ideal.”
But lawmakers responsible for appropriating money to NCDOJ said they were unaware of the need to review old case files until questions from WBTV for this story.
Sen. Warren Daniel (R-Burke), who chairs the committee that approves funding for NCDOJ, said Stein has never requested money or other resources to review these files.
“I don’t recall the department ever coming to us and saying we need resources for this,” Daniel told WBTV.
Daniel compared the importance of this issue to providing additional money to clear the backlog of untested rape kits, an issue Stein championed starting in 2017 and that has received bipartisan support in the legislature.
“If they needed resources, they should have asked us for it,” Daniel said. “I think this would have been something that we would have put to the top of the list.”
After our questions, Daniel said he planned to hold a hearing on this issue.
Brewer defended NCDOJ not specifically asking for money to review the old files.
“Our budget requests to the legislature are not always itemized,” she said in an email. “If we had an adequate working budget – i.e. an appropriately funded Laboratory and a DOJ that isn’t working to make ends meet after a $10 million budget cut – we’d have the flexibility to take on projects such as this when necessary.”
A lack of independence?
Mumma said the stonewalling of efforts to review microscopic hair comparison cases is illustrative of a larger issue where NCDOJ and the crime lab are slow to cooperate on matters that could lead to the basis for criminal convictions being questioned.
For one, Mumma said, the crime lab does not update prosecutors and defense attorneys when science changes; for instance, when a forensic method that was used to convict people years earlier is later to found to not be scientifically sound.
“When there is a change in science, there’s no looking back,” Mumma said.
Mumma pointed to other crime labs across the country that have been separated from prosecutors or law enforcement agencies, unlike North Carolina’s, which is still overseen by the state’s top prosecutor.
“I don’t think anybody would have confidence in the state lab or the district attorneys or the attorney general saying ‘hey, it’s all good here, we’ve looked at it and you can trust us that it’s all good,’” Mumma said.
“That’s not going to bring confidence.”
In her March 2 statement, Brewer, the NCDOJ spokeswoman, suggested Mumma’s push to have these cases examined to ensure no innocent person was sent to prison was politically motivated because Mumma unsuccessfully ran in the Republican primary for attorney general in 2020.
“I’m sure you’ve taken this into account, but I trust you’ll also be letting your viewers know that she unsuccessfully ran to unseat Attorney General Stein in 2016 (sic) and is widely quoted disparaging his work,” Brewer said.
Mumma, who has worked since 2014 to have these files reviewed, rejected the suggestion that politics motivated her to speak out about the delay in reviewing these files.
“It’s very frustrating that they don’t want to cooperate in the pursuit of justice,” Mumma said. “Which is not a partisan issue.”
This story has been updated to note an inaccuracy in a quote from NCDOJ about when Chris Mumma ran for Attorney General. Mumma ran in the 2020 election, not 2016.