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Spurred by the FBI's admission that its forensic work involving hair analysis – and its training of crime lab workers – has been deeply flawed, several states have decided to review thousands of criminal convictions.

But apparently Montana won't be one of them – even though three imprisoned convicts have been exonerated and another granted clemency in cases that included such hair evidence.

Attorney General Tim Fox told Lee Montana Newspapers in a written statement that a 2003 internal review of some Montana convictions involving microscopic hair comparisons included notifying defendants about potential problems and that practices at the state Crime Lab have since changed.

“While the FBI is addressing concerns that its own analysts have overstated the significance of their findings, Montana’s hair analysts have used scientifically and legally sound reporting methods,” he said in the statement. “This administration has received no information calling into question other microscopy work performed at the lab.”

Four retired state Supreme Court justices joined the Montana Association of Criminal Defense Lawyers in a 2004 petition asking the Montana Supreme Court to order an in-depth audit of hair microscopies by independent forensic experts, citing flaws with the scope and methodology of the 2003 review ordered by then-Attorney General Mike McGrath. The court rejected the petition on the grounds that it did not have jurisdiction to order a review.

This week, many petitioners reaffirmed their call for a more thorough audit.

“If Attorney General Tim Fox hasn’t done a broader review, how would you know cases haven’t been affected?” asked Matthew Wald of Hardin, president of the Montana Association of Criminal Defense Lawyers. “Especially when the FBI has essentially acknowledged the problem and is urging states to take a closer look.”

The FBI is not alone in suggesting states review microscopic hair comparison testimony and reports. Statements also have been issued by the U.S. Department of Justice, national Innocence Project, National Association of Criminal Defense Lawyers and the American Society of Crime Laboratory Directors, the accrediting body for the Montana Crime Lab.

“We’ve now learned all over America how frequently people are wrongfully convicted when hair microscopy was used in the original trial,” said Peter Neufeld, co-founder of the Innocence Project who also pushed for Montana to audit its hair microscopies. “Literally, it is the most frequent cause of any scientific evidence going awry.”

***

DNA testing spread as an investigative technique in the 1990s and has since proved hundreds of people were imprisoned for crimes they did not commit, leading attorneys and judges to evaluate the reliability of other forensic testimony. Many disciplines had evolved in crime labs and among police investigators without the usual academic rigor applied to other sciences, concluded a 2009 National Academy of Sciences report.

This was complicated by the fact that techniques like microscopic hair comparison were qualitative analyses, while DNA testing is quantitative, but many jurors gave them the same credence. They trusted experts who linked defendants to crimes. Some forensic examiners exaggerated the conclusiveness of their findings – and the ongoing audits show the practice was more widespread than previously known.

The idea to compare two hairs under a microscope to see if they belonged to the same person first appeared in Sherlock Holmes stories from the 1800s, but it wasn’t until the 1950s that crime labs started using the technique. Today, it is used as a preliminary tool to rule out some suspects – if a blonde hair with Caucasian qualities is found at the scene, you can exclude an African-American man with black hair as the contributor – and to narrow down samples that might be suitable for costly DNA tests.

“Microscopic comparisons can reliably exclude hairs,” but the technique “has never been considered a positive form of identification,” wrote the authors of a study published in a 2002 edition of the Journal of Forensic Sciences.

Nonetheless, many forensic hair examiners told jurors that a hair found at the crime scene almost certainly proved a defendant was there.

Nationwide, at least 74 people have been exonerated by DNA in cases in which microscopic hair comparison testimony was a factor in conviction, including nine who were executed and five others who died while on death row, according to a joint press statement by the FBI and Innocence Project.

Pushed by a series of stories in the Washington Post and three Washington, D.C., exonerations, federal leaders launched an audit of 3,000 cases in which FBI analysts provided reports or testimony on microscopic hair comparisons before 2000, the year the agency’s policy changed to prefer DNA tests. The review has cataloged three types of testimony errors not supported by science: concluding that a hair could only belong to one person, stating a probability or likelihood that the hair came from a particular person, or citing the number of hair analyses completed in which contributors contributors could be distinguished as a way to validate their methods.

The FBI has notified hundreds of defendants and their attorneys about problems with testimony identified during its audit, offering to conduct DNA tests if the physical evidence has not been destroyed. The agency also has offered to provide information to states interested in starting their own audits.

Because local labs handle the majority of evidence used to prosecute crimes, the problems could extend to thousands of cases not covered by the FBI audit. The agency has said its records are incomplete, but at least 1,000 local forensic analysts received microscopic hair comparison training at a five-day course first offered in 1973.

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Melnikoff attended one of the first FBI classes.

“Hair examination was something most law enforcement was very interested in at the time,” Melnikoff said. “Except for fingerprinting and limited blood typing, it was very difficult to associate physical evidence with people who were at a crime scene. The FBI had offered the service for numerous years, so there was interest in providing that locally.”

Melnikoff, who held a masters in organic chemistry but had no forensic experience, founded Montana’s crime lab in 1970 as its sole employee, at first offering only drug analyses. After the FBI course, he asked colleagues to submit sample hairs so he could practice. After 10 such mock analyses, he felt comfortable offering microscopic hair comparisons to the state’s law enforcement agencies. Before he left Montana in 1989 following a critical state audit of lab management, Melnikoff conducted hundreds of hair comparisons.

In 1991, the Washington State Patrol crime lab barred Melnikoff from analyzing hair evidence when he failed to meet professional standards for the tests, according to news reports from the Seattle Post-Intelligencer. He was fired from the Washington job in 2004.

In an interview, Melnikoff defended the quality of his microscopic hair comparisons. He also insists that his testimony was comparable to that of his peers, including FBI hair examiners. The agency denied that assertion when Melnikoff first came under fire for the Montana exonerations, but now the claim appears to be supported by the audit’s initial results.

Helena attorney Ron Waterman represented Jimmy Ray Bromgard during a civil lawsuit against the state after he was exonerated of the 1987 rape of an 8-year-old Billings girl. The result was a $3.5 million settlement.

Waterman noted that peer reviews submitted during the civil suit concluded Melnikoff’s hair comparisons did not even meet the standards of his day, and that other cases have suggested issues with his drug analyses and arson investigations, which have never been the subject of a Montana audit.

Worried that Bromgard was not the only person convicted with bad science by Melnikoff, attorney Bill Hooks reached out to Dr. Walter Rowe of George Washington University, who serves on panels that set education and accreditation standards for forensic sciences. Rowe organized a group of experts to review trial transcripts.

In their 2002 findings, they wrote that portions of Melnikoff’s testimony contained “egregious misstatements not only of the science of forensic hair examinations but also of genetics and statistics” and was “completely contrary to generally accepted scientific principles.”

The panel urged the state to launch an audit of Melnikoff’s work by independent forensic scientists. Instead, McGrath hired former Lewis and Clark County Sheriff Sam McCormack to lead a review of some testimony.

McCormack, who does not have a listed phone number, did not respond to a request for comment made through social media. And a copy of the 2003 review was not available by press time, which the attorney general’s office said was because it had to be pulled from archival storage.

According to news reports, the Crime Lab identified 244 hair comparison reports by Melnikoff, who has said he did hundreds more analyses that never culminated in a report because the cases did not go to trial. McCormack’s investigation was narrowed to 32 cases in which Melnikoff testified to a positive association. Thirteen where defendants pleaded guilty were not reviewed. Of the remaining 19 cases, McCormack also excluded seven instances in which the defendants were acquitted and four in which a trial transcript could not be found. McCormack focused on the remaining eight transcripts.

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In a 2004 memo, McGrath reported that none of those eight cases had been wrongful convictions. At a January meeting of the Crime Lab’s advisory board, he said there had been other compelling evidence in the cases.

Months later, the petition was filed to the Montana Supreme Court, saying the review had been a “superficial, incomplete review of paperwork.” It pointed out the small number of cases reviewed, the fact that the work of three other hair examiners at the Crime Lab was unchecked, and the fact that McCormack had worked with both McGrath and Melnikoff. Beyond reviewing more trial transcripts, the petitioners urged for DNA tests.

“The Attorney General would have us believe the only people to be wrongfully convicted in Montana just happened to be the first three men asking for post-conviction DNA testing,” read the petition.

McGrath declined to do a new audit, saying in a 2006 civil trial deposition that he “didn’t think any purpose would be served.” He added it would be too expensive to hire outside forensic examiners, although he admitted he had never asked how much it might cost.

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Such concerns have not stopped other states – including Texas, Massachusetts, North Carolina and Iowa – from launching their own audits in the past two years. Although some of those initiatives originated from the governor’s office, Gov. Steve Bullock declined through a spokesman to comment on the need for a similar effort in Montana.

“It’s not (Bullock's) place to decide whether to do a review or not,” spokesman Tim Crowe said. “As a former attorney general, he recognizes Attorney General Fox’s position and doesn’t want to overstep that.”

Fox spokesman John Barnes said in an email that the attorney general was “aware of the general suggestions” from the FBI and others, which he said are being given “all due consideration in terms of the work that has already been done in Montana and whether further actions are needed.”

He declined to answer other questions about whether Fox, or his staff, had read the 2003 review by McCormack and McGrath, what conclusions they had reached about its thoroughness and who in the office is weighing the need for a new audit.

Jeffrey Renz, director of the criminal defense clinic at the University of Montana’s School of Law, said that it doesn’t make sense to hinge a decision about doing a new audit on whether or not someone else comes forward alleging problems with Melnikoff reports.

If prosecutors had said they would present hair testimony that tied someone to a crime scene, Renz said, a defense lawyer would have discussed all options with the client, including taking a plea deal, even if the client insisted on his innocence. That means some of the cases excluded from the 2003 review could include people wrongfully imprisoned based on Melnikoff’s work.

“Some of these guys are mentally ill. A lot of them have minimal education. You’d hope they would come forward, but the fact they haven’t doesn’t mean they aren’t innocent,” Renz said. “A lot of these guys are out of prison, but they still have convictions on their records and have to register as sex offenders.”

Given the volume of Montana cases involving hair testimony and the FBI’s recent findings, Larry Mansch of the Montana Innocence Project said “it’s very likely other people remain incarcerated that didn’t do it.”

This week, McGrath, who now is chief justice of the Montana Supreme Court, said it would be inappropriate for him to comment on the renewed interest in an audit and that he hadn’t “thought about it since then.”

“Our thought at the time was we had conducted an elaborate review,” McGrath said. “Not everybody would agree with that, obviously.”

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