by Jayson Hawkins
Despite the constant glamorization of forensic evidence analysis that has become so common on TV shows, regular readers of CLN should be well aware that what passes for “science” in many actual cases amounts to little more than wishful thinking on the part of prosecutors and law enforcement. An October 2021 opinion from the Maryland Court of Appeals disbarring a former prosecutor for decades of documented deceit serves as a painful reminder and a glimpse into how much damage may have been done by the institutional acceptance of these fabrications and falsehoods.
In the 1982 Maryland murder trial of John Huffington, for example, the somewhat dubious method of microscopic hair comparison took center stage when Agent Michael Malone of the FBI testified that evidence from the crime scene “microscopically matched the head hairs of Mr. Huffington—that is, they were indistinguishable from Mr. Huffington’s head hairs; you could not tell them apart.” Although Malone admitted during cross-examination that positive identification of a suspect cannot be made through this forensic method, the incriminating damage had already been done. Huffington was found guilty of two counts of murder.
If junk science had been the only issue with his trial, Huffington could well still be in prison four decades later. A bribery investigation into a judge in a separate case called Agent Malone’s credibility into question when he revealed he had lied about conducting a forensic test. William Tobin, who actually performed the test, later testified before Congress that Malone had also “presented apparently and potentially exculpatory information as incriminating.”
A 1997 report on FBI lab procedures filed by the DOJ Inspector General again referred to Malone as having “testified outside his expertise and inaccurately concerning the test results.” The report was forwarded both to Huffington’s attorneys and to Joseph Cassilly, who had prosecuted Huffington’s case. Despite the implications that Malone may have offered false testimony in that case as well, Cassilly made no effort to investigate the issue.
A subsequent FBI analysis of the Huffington evidence found several inconsistencies between the original testing and Malone’s statements in court concerning it. The ensuing report about these issues was sent to Cassilly, who did not forward it to Huffington’s lawyers. During disbarment hearings for his actions, Cassilly said of both reports that he had “discarded them and forgot about them.” The court found that the information Cassilly had kept from Huffington’s defense was exculpatory. When a motion was filed to retest the hair samples in 2003, Cassilly reacted by asking the court’s permission to destroy them. The court ruled for Huffington, and further examination of the evidence by an expert “was not able to identify which hair Agent Malone had matched to Huffington,” according to Cassilly’s disbarment proceedings.
The proceedings also noted that the National Academy of Sciences had found “no scientific support for the use of hair comparison for individual identifications in the absence of DNA testing.”
When Cassilly finally agreed to release hair samples to the FBI for DNA testing over 30 years later, the results eliminated Huffington as the source of the hair found at the crime scene.
Huffington stood trial for a third time in 2016, and Cassilly withheld yet another report from the defense that stated Agent Malone’s testimony in the original trial had “exceeded the limits of science.” Still, Huffington remained in prison until 2018 when his attorneys filed a complaint with the bar about Cassilly. Huffington was allowed to plead for a suspended sentence and, having been incarcerated for 32 years, was released with time served.
As for Cassilly, the proceedings against him resulted in his disbarment, though the sanctions will not affect him personally, as he has already retired (though the court ruling in favor of the Grievance Commission did order Cassilly to pay nominal court costs). At best, it is hoped the sanctions will deter other prosecutors from covering up information that could help defendants, though perhaps that’s wishful thinking.
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