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Early review finds 900+ cases where debunked science was used by prosecutors

WBTV Investigates: Attorney General’s Office continues review, years after promising to start
Published: Oct. 7, 2021 at 6:02 PM EDT|Updated: Oct. 7, 2021 at 6:47 PM EDT
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RALEIGH, N.C. (WBTV) - The North Carolina Attorney General’s Office has begun its review of case files to identify cases in which now-debunked science was used in an effort to secure convictions.

The science, called microscopic hair comparison, or MHC, was widely used in North Carolina from the early 1980′s through the early 2000′s, until in was proven to be flawed.

Even though the forensic technique’s use dragged into the early 2000′s, a bulk of convictions using MHC evidence came before 1990.

The method has been known to be flawed for nearly a decade. In 2016, then-FBI Director Jim Comey wrote a letter to governors addressing the use of the flawed science and asking each state to undertake a review of cases in which MHC evidence may have been used.

“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.”

Related: Bad science sent innocent men to prison. N.C. DOJ wouldn’t review other cases where it was used.

Read: Comey’s letter regarding microscopic hair comparison

But a review of case files in North Carolina stalled for years.

The North Carolina Center on Actual Innocence, led by attorney Chris Mumma, has been working since 2014 to facilitate a review of cases.

In 2019, Mumma and the N.C. Department of Justice entered into an agreement to begin a review, with Mumma’s group offering to provide staff support to help review old case files.

Any review is made more difficult because pre-1990 case files are still on paper.

Despite the 2019 agreement, N.C. DOJ did not begin any review of the pre-1990 case files until after a WBTV investigation in March of this year.

In September, WBTV inquired as to the status of the review. Two weeks later, N.C. DOJ sent Mumma a letter and names for three years of case files, 1987-1989.

The list, covering a three-year period, included 963 names of defendants whose cases included the use of MHC evidence.

Related: Innocent men were sent to prison and released decades later. Now Gov. Cooper won’t pardon them

Related: State clears man wrongly convicted in 1987 rape case, a witness could face charges

It is not clear why the agency could only review three years’ worth of files in six months, other than the agency was conducting its review by hand.

Previously, the agency said it had been working to digitize old records. But, in an email to Mumma, Vanessa Martinucci, Director of the N.C. State Crime Lab, said the agency stopped digitizing files with cases from 1996 because it ran out of funding.

But a list of funding requests from N.C. DOJ to state lawmakers submitted earlier this year did not include additional money for digitizing crime lab records nor reviewing cases for MHC evidence, despite a recommendation from the Forensic Science Advisory Board that lawmakers give “adequate appropriation and funding to review the approximately 350,000 case files that are not digitized or indexed in order to find those in which microscopic hair comparison was conducted.”

Martinucci’s emails to Mumma did not provide a timeline on which cases from other years would be reviewed.

Dwayne Dail, who was wrongfully convicted in 1989 of a rape he did not commit, questioned the continued delay by Attorney General Josh Stein to review MHC cases.

“I just don’t understand why the attorney General Josh Stein will not, you know, make that happen,” Dail said of reviewing old case files to identify cases where MHC was used.

Early review finds 900+ cases where debunked science was used by prosecutors
Early review finds 900+ cases where debunked science was used by prosecutors(WBTV)

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That is something that they and they alone have the records and that is in the interest of justice. That should be a top priority and it should not take years.”

The only physical evidence in Dail’s case was a microscopic hair comparison, which was offered as evidence to show he was at the scene of the crime. DNA evidence eventually proved otherwise.

“It’s extremely infuriating, also, to know that there are others who were just like me, who were still in prison by using junk science,” Dail said.

A spokeswoman for Stein refused multiple requests to make him available for an on-camera interview and did not address specific issues raised in an email requesting an interview for this story.

“We agree that this review is important and we are continuing to work through these cases. As we do so, our office will continue to produce this data as it’s ready,” spokeswoman Nazneen Ahmed said in an email.

Related: Dwayne Dail exonerated after 18 years

Editor’s note: This story has been updated to correct the fact that the cases identified by the Attorney General’s Office are cases where MHC evidence was used. It is not yet known whether those cases resulted in conviction.

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