Several States Searching Out Flawed FBI Hair, Fiber Cases; Wisconsin Is Not

States including Massachusetts, Iowa and Arizona are initiating their own reviews of microscopic hair and fiber analysis cases, prompted by the FBI’s nationwide inquiry. Wisconsin — which has seen at least three convictions overturned after such analysis has been proven to be wrong — has no plans to do the same.

A spokesman for the Wisconsin Department of Justice, Johnny Koremenos, said the department is not conducting a review in Wisconsin. The DOJ will handle cases “where such analysis was used and was critical to the conviction” as they are brought to its attention, Koremenos said.

In the case of Richard Beranek, the department deployed Assistant Attorney General Robert Kaiser — the prosecutor in the original case — to vigorously defend the state’s case, including filing motions in an unsuccessful attempt to keep Beranek in custody even after his conviction was overturned. A judge vacated Beranek’s 243-year sentence in June based on DNA evidence that contradicted the FBI testimony that hair found at the scene of a sexual assault “matched” Beranek’s hair.

On top of the cases reviewed by the FBI, the Center has obtained from the Wisconsin Department of Justice a list of 15 microscopic hair analysis cases from the State Crime Laboratory.

One person on that list, Anthony Hicks, was exonerated in 1997 after serving about four and a half years of a 19-year sentence for a sexual assault in Madison. Ralph Armstrong, who was not on the list, also was cleared after serving nearly 29 years in prison for a murder that likely was committed by his brother. Analysts had tied hair from the 1980 Madison murder to Armstrong, but DNA testing later refuted that.

Lindsay Herf, executive director of the Arizona Justice Project — a leading organization in that state’s review process — said states must take a proactive approach.

“If you don’t look for them, you’re never going to find them,” said Herf, who also represented the National Association of Criminal Defense Lawyers for the FBI review.

After former FBI director James Comey implored governors last year to prod reluctant prosecutors in their states to notify defendants of flawed FBI microscopic analysis, Herf said, Arizona’s justice officials decided to undertake a review of their own.

The Arizona Department of Public Safety, which houses the state crime lab, reached back into its digitized case files to identify cases in which microscopic hair or fiber analysis matched a sample to a suspect. The department’s search returned 218 cases.

A task force that includes, along with Herf, a DPS crime lab manager, a prosecutor from the state attorney general’s office and a state appeals court judge is now reviewing those 218 cases for errors and overstatements in lab reports or trial testimony.

In addition, city crime labs in Mesa, Tucson and Scottsdale have identified cases to add to the statewide review, Herf said, and Phoenix is awaiting grant money from the National Institute of Justice to do so.

Iowa state officials have initiated a similar statewide review of microscopic analysis cases, said Erica Nichols Cook, director of the wrongful conviction division for the state public defender’s office.

But the process in that state has been hampered by flooding in several of Iowa’s major courthouses, which damaged or destroyed much of the evidence in need of review. The flooding also damaged the courthouses’ paper records, crucial to the project because many of the relevant cases likely predate the digitization of court records.

“We have to make sure to turn over every rock to find these transcripts,” Cook said.

Despite these practical challenges, Cook said, at least 20 cases in Iowa have been flagged as potentially affected by bad microscopy.

In Massachusetts, a partnership consisting of the state crime lab, the Middlesex District Attorney’s office, the state public defender agency and the New England Innocence Project is working to digitize the crime lab’s case files from 1980 to 2000 so they can be efficiently reviewed for microscopic analysis errors.

Lisa Kavanaugh, director of the state public defender’s Innocence Program, said that once the cases needing review have been identified, court records will be reviewed for misleading statements about hair and fiber evidence.

So far, 46 cases have been flagged as candidates for inclusion in the review, and Kavanaugh said the team hopes to have identified all candidates by the end of the year.

Given the numerous barriers to defendants who seek to have their cases reviewed, Kavanaugh said, state officials must take proactive measures to ensure that cases potentially affected by bad microscopy do not go unaddressed.

“Ad hoc reviews make systemic changes virtually impossible,” she said.

Herf said that, for other states seeking to conduct their own reviews of microscopic analysis cases, collaboration across the justice system is key.

“Having an agreement with various stakeholders in the system — judges, prosecutors, defense — really helps streamline the process,” she said. “And it provides a variety of voices. It’s not just the defense yelling about it.

“We all have a duty, everyone in the justice system, not just to get it right from here forward but to correct any mistakes from the past,” Herf continued.

Wisconsin’s Tainted Hair, Fiber Cases

The Center has found nine cases in the state involving 12 defendants that featured faulty crime laboratory hair or fiber comparison. Seven cases were flagged by the national task force re-examining cases involving FBI hair and fiber analysis. Two are cases in which DNA testing showed that Wisconsin State Crime Laboratory hair comparisons linking suspects to crime scene hairs were wrong.

Ralph Armstrong

Armstrong was exonerated in 2009 after serving nearly 29 years in prison for a murder likely committed by his brother. DNA testing showed hair from the Madison murder scene deemed by the Wisconsin State Crime Laboratory to be consistent with Armstrong’s was not his.

Earlier this year, Armstrong was awarded $1.75 million by the state of Wisconsin, Dane County and the city of Madison.

Noting the extensive allegations of police and prosecutorial misconduct, a federal appeals court summarized the case as “a single-minded pursuit of an innocent man that let the real killer to go free.”

Richard Beranek

Beranek’s conviction was overturned by a Dane County Circuit Court judge in June.

Prosecutors have not announced whether they will retry Beranek, who had served 27 years of a 243-year sentence.

DNA testing found hair and semen from the rape scene were not Beranek’s, despite FBI testimony that the hair was a “match.”

Roy L. and Clarence Broussard

The Broussards pleaded guilty to the 1986 armed robbery of a clothing store in Brookfield.

Former Waukesha County District Attorney Paul Bucher told the FBI that the agency’s flawed analysis was not “material” to the defendants’ convictions, given other evidence, including eyewitness identification. Efforts to reach the Broussards were unsuccessful.

Joey Dale Clendenny, George T. Phillips and Dennis Wieneke

Clendenny, Phillips and Wieneke were convicted in U.S. District Court in Milwaukee for the 1979 kidnapping of a man and woman in Green Bay and the sexual assault of the woman. Wieneke, who pleaded guilty, said he was not notified until 11 years later of the FBI’s finding of shoddy lab work in 2003 by analyst Michael Malone.

In an interview, Wieneke acknowledged involvement in the crime but said that Malone — whose “scientifically unsupportable testimony” helped launch the agency’s review of hair and fiber cases — had also victimized people. “I think there’s a lot of innocent people out there he (Malone) hurt,” Wieneke said.

Larry Fandrich

Fandrich and his attorney say the flawed FBI hair and fiber analyses in the Sauk County case prompted him to plead no contest rather than not guilty to a string of sexual assaults and kidnappings in and around Baraboo in 1991.

Fandrich, who is serving a 50-year term, plans to seek a sentence modification.

Patrick Greer

In 2016, the FBI identified numerous errors in its analyst’s testimony in the La Crosse County case against Greer, who had maintained that he was not involved in a 1994 masked bank robbery for which he was convicted and served about 13 years in prison.

The analyst falsely testified that his ability to compare Greer’s hair to a strand found on the bag carrying money from the robbery was like a person’s ability to recognize the face of a best friend or spouse. Efforts to reach Greer were unsuccessful.

Brook Grzelak

Grzelak told the Center he does not recall that hair or fiber evidence was used against him as part of a federal case stemming from a 1982 bank robbery in Oconto County — despite the fact that the FBI found shoddy lab work in the case back in 2001.

Grzelak pleaded guilty despite his attorney’s advice. He is now imprisoned in Michigan on burglary-related counts.

Anthony Hicks

Hicks was exonerated in 1997 after DNA testing found that hairs from the scene of a Madison sexual assault — which a state analyst had said were consistent with Hicks’ — were not his. The state paid Hicks $25,000 plus $53,060 in attorney’s fees for the four and a half years he spent wrongfully imprisoned.

Booker Shipp

Shipp is serving a life sentence for two armed masked robberies and the fatal shooting of Glendale Police Officer Ronald Hedbany officer in 1994. The FBI found numerous errors with the testimony of the FBI analyst in that case, who tied Shipp’s hair to a strand found on the mask worn by the robber.

Milwaukee County District Attorney John Chisholm said the prosecutor who conducted an internal review of the case is “absolutely confident” in the jury’s verdict. Chisholm said there was additional “overwhelming” evidence against Shipp.

Shipp said he is looking for an attorney to bring an appeal. “I have always maintained my innocence,” he said. “I always said it was not me.”

This story is part two in a two-part series on cases that included a now-discredited forensic technique. Part one can be read here.

The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.