FOX UNDERCOVER (MyFoxBoston.com) -- The FBI is reviewing three criminal cases from two Massachusetts counties in addition to having already found errors in their analyst's testimony in another local murder trial, all part of a national review that is bringing more than 2,500 cases under scrutiny.
Officials in the Plymouth County District Attorney's office tell FOX Undercover that the FBI has asked for information on two cases and the Middlesex DA's office say one case is under review by the Bureau.
Meanwhile, the Massachusetts State Police tells FOX Undercover that they are not initiating a review of their own crime lab experts' testimony to see if they contained inappropriate statements.
The FBI has already written to the Essex County DA saying their review of the 1983 murder trial of James Preston found errors in testimony given by their hair analyst. Preston, a musician, was convicted of murdering Thea Pierce, who lived in the same Lawrence apartment building with Preston.
Preston's family tells FOX Undercover that he always maintained his innocence to them, even as he made a partial confession to the state Parole Board in 2002. Preston was never able to gain his freedom, and he died of natural causes while in custody in 2009. Pierce's family firmly believes in his guilt, and the Essex County District Attorney's office points to other evidence besides the hair analysis that was used to convict him twice – once in 1983 and again at a retrial in 1985.
Preston's family now wants the hair found at the crime scene to undergo DNA testing. The evidence has yet to be located.
The FBI and US Department of Justice began their nationwide review of hair analysis cases after DNA evidence was used to exonerate three Washington D.C.-area men who had all been convicted and imprisoned with the help of FBI hair analysts' testimony.
Microscopic hair analysis, the kind that was done before the advent of DNA testing, cannot be used to definitively match two hair samples, usually hairs found at a crime scene with a suspect's. But the review has found instances where the FBI analyst overstated the match between hairs, directly stating or implying that hairs at a crime scene matched those of a defendant's.
The FBI tells FOX Undercover in a statement that the Bureau has identified 2,546 cases with non-DNA hair analysis and has sent 1,907 letters to prosecutors requesting case information and transcripts.
The Innocence Project, which applauds the FBI review, has called on state and local crime labs to conduct their own review of hair analysts' testimony, noting that the FBI trained many of those experts.
Retired federal judge Nancy Gertner, who has written critically about the misuse of forensic evidence, told FOX Undercover that she thinks state and local police departments should be re-examining these old cases.
"This is not technical issue. What hangs in the balance is whether you have the right guy," Gertner said. "This was not just a problem with hair, this was a problem with ballistics and it was a problem with fingerprinting even and it was a problem with handwriting."
"Experts were basically making claims about the science that they didn't have the right to make," she said.
"Would you be surprised if there's resistance to reviewing that evidence?" Beaudet asked her in an interview earlier this week.
"I would not be surprised, no," Gertner replied.
The Massachusetts State Police said today that they have no plans to conduct a review.
"Prior to the advent of DNA testing, the State Police lab system communicated to police and prosecutors, very clearly, that the evidentiary value of hair analysis was limited. This statement was contained in reports that would have been provided to the defense bar through the discovery process. This language was standard in all such evidentiary reports," State Police spokesman David Procopio said.
Boston police, who have their own crime lab, did not respond to a request for comment, so it's unclear if the department was even conducting hair analysis before the advent of DNA. Meanwhile, other Massachusetts inmates, some of whom were convicted with the help of forensic evidence, are hoping DNA testing will exonerate them. An attorney for the New England Innocence Project tells FOX Undercover he is aware of about 15 cases where inmates are using a new law making it easier for them to pursue DNA testing after a conviction.
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