COLORADO, USA — A plan to review old criminal convictions involving the now-discredited practice of microscopic hair comparison includes cases involving a notorious Denver street murder, the killing of a state trooper, and the slaying of a teenage girl, 9Wants to Know has learned.
Defendants in those cases are among 51 men – almost all of them still in the state’s prison system – convicted between 1976 and 1995 after investigations in which hair microscopy was used.
A common practice around the country for decades, hair microscopy involved examiners using microscopes to compare strands of hair found at crime scenes with hair from suspects.
Those examiners would then testify in court as to the probability that hairs found at a crime scene matched a given suspect.
In reality, that testimony involved opinions, not science.
“That’s how we look at it now,” longtime criminal defense attorney Phil Cherner said. “We thought it was science back then.”
This discredited science was used in the investigations of the murders of Tom Hollar in Denver in 1993, state trooper Lyle Wohlers near Georgetown in 1992, and 14-year-old Cissy Foster in Arapahoe County in 1993.
The review is expected to start in the spring after an agreement between the Korey Wise Innocence Project at the University of Colorado Law School and the Colorado Bureau of Investigation.
“There were people that were convicted based on this evidence,” said Anne-Marie Moyes, the head of the Korey Wise Innocence Project. “And then when DNA did become available and the hairs were tested, and other biological evidence in the case was tested, it often showed that the hair examiners were just completely wrong.”
The ultimate goal is to determine whether any of the 51 could actually be innocent of the crimes for which they were convicted.
“If we think there’s a credible claim of factual innocence, and the hair evidence was part of the conviction, then we would be pursuing DNA testing,” Moyes told 9NEWS.
Neither the Korey Wise Innocence Project nor the CBI has made public the list of cases set for review. However, 9Wants to Know independently obtained a copy and found that the men fall into three categories – those where hair was the only forensic connection between a defendant and a crime, those where hair and other forensic evidence connected the defendant to a crime, and those where hair evidence was examined but did not establish a connection to a defendant.
- About two-thirds of the men – 33 of 51 – were convicted of murder.
- About one-third were convicted of sexual assault.
- Six of the men had two cases involving hair evidence.
- A total of 30 different law enforcement organizations have cases involving at least one of the 51 men.
- The Denver Police Department has the most cases, at 15.
The FBI pioneered hair microscopy, touting it for years as a valuable tool for investigators trying to solve serious crimes. A 1969 FBI film extolling the practice’s value included the following narration over images of a lab-coat-wearing agent examining evidence: “The trained eye can learn many things. Is it human hair? Of what race? Animal hair? What family? Was it bleached? Dyed? Crushed? Cut? Burned? Pulled out? This vital information may help to establish guilt or innocence.”
But the advent of DNA testing changed things.
“There was one particularly outrageous case where a hair examiner said two hairs matched, that a hair from the crime scene came from the defendant, and in fact it was a dog hair,” Moyes said. “You know, that’s how egregious some of the cases were.”
The FBI stopped using hair microscopy in 2000. In 2015, the FBI acknowledged, after an analysis of old cases, that hair examiners’ testimony in at least 90% of the criminal cases looked at during the review “contained erroneous statements.”
In 2016, then-FBI Director James Comey urged governors around the country to undertake a review of cases involving hair microscopy, writing, “Like you, we care deeply about justice, which is both about obtaining convictions and making sure that mistakes are fixed.”
One of those whose conviction is set to be reviewed is a man named Shane Davis.
He and a co-defendant, Steve Harrington, are serving life terms after being convicted of the murder of Tom Hollar and the savage beating of his wife, Christina, in Denver’s Capitol Hill neighborhood.
> Watch 9NEWS coverage of the case from 1993-1994
It is not clear why Davis’ conviction is being reviewed but Harrington’s isn’t. The hair testimony in the case centered around an examiner’s conclusion that there was a “high probability” that a hair found on a shirt near the crime scene came from Harrington.
After questions from 9Wants to Know, CBI spokeswoman Susan Medina said further work would be done to make sure the list doesn’t need to be refined before the review actually begins. That is expected in the spring.
“There are some people who suffer wrongful convictions,” said Craig Silverman, who prosecuted the case against Davis and Harrington. “I don't want to be a part of that.”
He said evidence tying the two men to the crime went well beyond that single hair. A coin purse, a watch and a torn business card found in the Hollars’ car were all tied to Davis. And multiple eyewitnesses – including Christina Hollar – identified Harrington as the one who fired the bullets that killed Tom Hollar.
“I'm all for subsequent reviews, and if there's bad technology, then let's get to the bottom of it,” Silverman told 9Wants to Know. “I'm not worried about this, but everybody is entitled to justice and I don't want to be part of an injustice. I don't think I was, here.”
Marcus Fernandez, convicted of killing Wohlers, is also on the list of cases up for review, as is Kenyon Tolerton, who admitted to raping and strangling Foster.
Cherner, the longtime defense attorney, said making sure convictions aren’t based on discredited evidence is in the best interest of defendants and victims alike.
“Nobody wants an innocent person in custody,” he said. “From the victim viewpoint, I assume, if the innocent person is in custody, the real bad guy’s out there.”
He faulted the criminal justice system for not doing a better job over the years of reacting to scientific advances that call into question previous investigative practices.
“We've overemphasized the need for finality and underemphasized the need to have the system evolve as the science evolves,” he said.
Moyes, the head of the Korey Wise Innocence Project, said the review will take time.
“These cases are old,” she said. “Getting the records alone can be a time-consuming process. And so we anticipate in the range of two or three years to complete a review of the cases.”
9Wants to Know data producer Zack Newman contributed to this story.
Contact 9Wants to Know investigator Kevin Vaughan with tips about this or any story: kevin.vaughan@9news.com or 303-871-1862.
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