Wisconsin inmate says flawed FBI hair, fiber analysis forced him to take 50-year prison plea deal – Channel3000.com – WISC-TV3
MADISON, Wis. – In 1991, in a string of attacks, three women were sexually assaulted by a man in a ski mask in and around Baraboo, a Sauk County community just north of Devil’s Lake State Park.
One victim was kidnapped after finishing her shift at a Hardee’s, bound and gagged with duct tape in the trunk of a car. The others were assaulted at knifepoint in their homes, one while her young son slept in the next room.
Two years later, then-Sauk County Assistant District Attorney Kevin Calkins charged 31-year-old Larry Fandrich with the kidnapping and sexual assaults.
Each woman’s description of her attacker — a thinly built man of medium height, with a soft voice — seemed to point to Fandrich, who had been convicted of a prior kidnapping. And during the Baraboo Police Department’s 1991 investigation, officers found a small paring knife, a jacket with a roll of duct tape in the pocket and a ski mask in Fandrich’s truck.
Fandrich said he had been prepared to plead not guilty. But when state prosecutors said FBI forensic experts had overwhelming evidence tying Fandrich to the crimes, he reluctantly decided to take a deal, pleading no contest.
“I was forced to accept a plea deal, as there is no jury that would disregard an FBI expert’s testimony,” Fandrich, now 55, wrote in a letter to the Wisconsin Center for Investigative Journalism.
Among the prosecution’s forensic evidence were gray carpet fibers collected from duct tape left at two of the crime scenes, which an FBI crime lab report claimed exhibited “the same microscopic characteristics and optical properties” as the fiber samples taken from the duct tape roll seized from Fandrich’s truck.
A single pubic hair found in one victim’s underwear also showed “the same microscopic characteristics” as Fandrich’s pubic hair, according to the lab.
In 1995, after 18 months of court proceedings, Sauk County Circuit Judge James Evenson sentenced Fandrich to 50 years in prison for the crimes. Had he gone to trial, Fandrich said, he would have faced a sentence of up to 265 years. He remains incarcerated today.
Fandrich’s case is among at least 13 prosecutions in Wisconsin in which the FBI has acknowledged its hair or fiber analysis was faulty. The FBI is conducting a nationwide review of criminal cases involving microscopic hair and fiber analysis prior to 2000, when mitochondrial DNA testing became a routine forensic practice.
The Center has identified seven of those cases through dozens of public records requests to state prosecutors and a trove of documents provided by FBI whistleblower Frederic Whitehurst. In addition, there are at least two more cases in which Wisconsin State Crime Laboratory analyses tying suspects to specific hairs have been proven to be wrong by later DNA testing.
The Wisconsin cases are among hundreds nationwide that have been found to be tainted by FBI analysis that falsely implied or claimed that hairs or fibers could be matched to specific sources. The task force reviewing the cases — which includes the Innocence Project and the National Association of Criminal Defense Lawyers — has acknowledged that more than 90 percent of hair and fiber cases involve flawed analysis or testimony by the FBI.
The Center has identified defendants in Dane, La Crosse, Milwaukee, Sauk and Waukesha counties and four federal defendants whose cases included flawed hair or fiber comparison by the FBI or the state crime lab. In some of those cases, while the FBI made errors, prosecutors said the hair or fiber evidence was not a key factor in the conviction.
Attempts by the Center to discover all of the cases tainted with flawed FBI hair and analysis have been thwarted by district attorneys who have invoked their power under state law to shield prosecutorial records from public view. Federal Freedom of Information Act requests to the U.S. attorneys in Milwaukee and Madison sent in March seeking records of federal cases remained unfulfilled as of mid-October.
In Dane County, the conviction of Richard Beranek was overturned in June after DNA testing found the hair the FBI claimed was a match to Beranek was, in fact, not his. He was released after spending 27 years in prison. Prosecutors, who are pursuing additional DNA testing in the case, have not announced whether they will retry him.
In response to a records request from the Center, the state’s largest county, Milwaukee, released records related to two homicide cases that have undergone FBI review. Deputy District Attorney James Martin said in a letter that he would not make the FBI records available, however, because they are shielded under a previous court decision and an agreement with the FBI not to disseminate records for “purposes unrelated to criminal prosecution and investigation.”
Martin did, however, provide testimony from the two cases, noting that such trial transcripts are public records.
Milwaukee prosecution flawed
One of them involved Booker Shipp, convicted in the 1994 killing of a Glendale police officer following a masked bank robbery. His appeals have been unsuccessful. An FBI expert testified in Shipp’s case that there were “no meaningful differences” between Shipp’s hair and a hair from the mask worn by the robber who shot Officer Ronald Hedbany.
FBI analyst Harold Deadman testified that the comparison was not an “absolute identification.” But he went on to say that “the chance of going out and selecting someone at random from a population and finding that person to have the same hairs as a particular individual would be small.”
Shipp contends he is innocent. He is serving a life sentence.
Shipp said he learned about the FBI’s review of his case from the Center — nearly three years after it was completed. He got a copy after requesting one from the Milwaukee County District Attorney’s Office.
“I was shocked that the DOJ, FBI did this report back in 2014,” he said in an interview. “Everybody knows but me — and I’m sitting in jail for it.”
Milwaukee County District Attorney John Chisholm told the Center that his office had sent the review to Shipp’s trial attorney, Steven Kohn. Kohn said it would not be “appropriate” for him to comment.
“If there’s flaws in the case then, you know, that was the heart of their case right there,” Shipp said from New Lisbon Correctional Institution. “That would be huge.
“I have always maintained my innocence,” he added. “I always said it was not me.”
According to the 2014 letter to Chisholm, the FBI found that Deadman’s testimony was flawed in several ways. The analyst implied that the hair could be related to one individual to the exclusion of others; that his findings had a statistical weight or probability; and he used the experience of the lab to “bolster the conclusion that a hair belongs to a specific individual.” All of those, the FBI warned, “exceeded the limits of the science.”
But Chisholm said the now-retired prosecutor, Norman Gahn, who reviewed the case at Chisholm’s request, is “absolutely confident” in the jury’s verdict.
Chisholm said microscopic hair comparison played a “very minor role” in the case and that evidence linking Shipp to blood left at a related liquor store robbery and DNA from a bandanna worn by the robber was “overwhelming.”
Shipp said he is looking for an attorney to help him appeal based on the flawed testimony and “multiple, multiple things wrong with the case.”
The other Milwaukee County case analyzed by the FBI involved Jesse Anderson, who was found guilty of killing his wife after claiming the white couple had been attacked by two black men. He was murdered in prison in 1994 alongside serial killer Jeffrey Dahmer. Anderson’s attorney, Dennis Coffey, confirmed the FBI had reviewed the case but declined additional comment.
Chisholm said the FBI did not find errors in its review of the Anderson case.
Longstanding problems with analysis
By the early 1990s, when Fandrich’s case was being investigated, the FBI knew that microscopy had its limitations. Hair or fiber samples that look identical, even under a high-powered microscope, could come from a number of individuals or sources.
Twenty years later, in August 2015, the U.S. Department of Justice notified Calkins, now Sauk County’s district attorney, that the microscopic analysis in the FBI lab report in Fandrich’s case contained erroneous statements that “exceeded the limits of science” and “were therefore invalid.” Calkins provided the letter under the state public records law.
The FBI review found that the lab report for Fandrich’s case, which implied that the pubic hair and carpet fibers tied him to the crimes, contained “inappropriate statements.”
Fandrich’s attorney, Raymond Dall’Osto, said the hair evidence was “very important” to his client’s decision to change his plea from not guilty to no contest. That, combined with the “purported DNA match,” made acquittal very unlikely, he said.
“You cannot separate the two forms of forensic evidence and resulting opinions of the FBI,” Dall’Osto said. “If one was knocked out or called into question, it would potentially topple the other or at least raise a substantial reasonable doubt as to the reliability of the so-called match.”
Hair, fiber evidence limit options
The state’s case against Fandrich did not exclusively turn on the FBI crime lab’s microscopy work. Prosecutors also presented DNA testing of semen samples taken from the crime scenes. Dall’Osto vigorously disputed the admissibility of that DNA evidence, arguing that the FBI’s test methodology was so flawed it could not be relied upon. But that argument was never tested in court: Fandrich agreed to a plea deal.
“I became overwhelmed with the circumstantial evidence and the statistical numbers from the experts,” Fandrich wrote in a letter to the Center. “I feared that I would spend the rest of my life in prison, and I would never see my sons again.”
As for whether he is guilty, Fandrich wrote that to qualify for parole, he must complete sexual offender treatment — one condition of which is to accept responsibility for the crimes for which he was convicted. As a result, he said, “I am unable to answer your question as to whether I am innocent of these crimes.”
Fandrich said he is hoping to petition for a sentence modification. Since his 1995 conviction, Fandrich said he has been denied parole 10 times.
“He should be out of prison now,” Dall’Osto said. “He’s been a model prisoner and should have been paroled a lot earlier. I hope some relief can be gotten for him.”
Research intern Emma Schatz contributed to this report. 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.
Several states searching out flawed FBI hair, fiber cases; Wisconsin is not
At least three men convicted in Wisconsin have been cleared in separate cases in which DNA testing proved that earlier microscopic hair analysis was wrong
By Katherine Proctor
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.”
Wisconsin’s tainted hair, fiber cases
The Wisconsin Center for Investigative Journalism 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 analysts. 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.”
— Dee J. Hall