EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, November 24, 2015

The Hairs That Came From Neither Hae Nor Adnan: The Most Exculpatory Physical Evidence in the Case?

In yesterday's Addendum Episode of the Undisclosed Podcast, we discussed an important piece of physical evidence: the two hairs recovered from Hae's body and/or clothes that were determined not to be the hairs of either Adnan or Hae:

Screen Shot 2015-11-24 at 6.29.58 AM 

This information is hugely important, both legally and factually. As we discussed during the Addendum Episode, the hair analysis report done by Sal Bianca was first turned over to the defense on December 2, 1999, just days before Adnan's first trial. According to that report, none of the hairs recovered from Hae's body and clothes matched Adnan.  In response, the defense immediately requested clarification of the report, specifically seeking to verify that while none of the removed hairs belonged to Adnan, they did belong to Hae. During Adnan’s first trial, however, no such clarification was given by the State.

It wasn’t until two weeks after Adnan’s first trial ended in a mistrial, on December 30, 1999, that the State disclosed that, in addition to the hairs not matching Adnan, two of the hairs recovered from Hae’s body or clothes did not match Hae’s hair. This was the Amended Disclosure posted above.

Simply put, this was a Brady violation, and it would have resulted in a new trial if Adnan's first trial ended in a conviction rather than a mistrial. To illustrate this point, consider Hoffman v. State, 800 So.2d 174 (Fla 2001), in which the defendant was convicted of murder(s) based in part on his own confessions and a cigarette pack with his fingerprints found at the murder scene. In Hoffman, the State disclosed that a hair analysis was done but failed to disclose that a hair found in one of the victim's hands was not a match for the defendant, his co-defendant, or the victims. According to the court, "[i]n failing to do so, the State committed a Brady violation when it did not disclose the results of the hair analysis pertaining to the defendant" because those results created the reasonable probability of a different outcome.

That's the legal importance of the State's late disclosure of Bianca's findings. There was a clear Brady violation at Adnan's first trial. Now, that violation can't lead to a new trial because Adnan's first trial ended in a mistrial, but it certainly can be used as circumstantial evidence in support of Adnan's current Brady/cell tower claim.

That takes us to the factual importance of the evidence. There's a reason that the court found the hair evidence in Hoffman was material. There, as in Adnan's case, the presence of hair that belonged to neither the victim nor the defendant strongly points toward a third person being involved in the murder. 

In Adnan's case, who could that be? Jay claims that he never touched Hae's body. Hae's body was mostly covered while she was in a secluded part of Leakin Park, making it unlikely that multiple hairs came from some random person who was in that park, such as Mr. S. Could the hair have come from someone working for the State, including Sal Bianca himself? It's always a possibility, but the likeliest scenario certainly seems to be that the hairs came from someone involved in Hae's death or burial.

Now, it's true that problems with hair analysis have been discovered recently. It's important to note, though, that these flaws typically have a funny way of helping the State. 

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

This is because hair analysis is highly subjective, and analysts frequently misidentify hairs as belonging to victims and defendants. Of course, this is not what happened here. Bianca concluded that neither Adnan nor Hae were the sources of two hairs found on Hae's body or clothes. In the hair analysis realm, exculpatory conclusions are much more reliable than inculpatory conclusions, and Bianca's conclusion was certainly exculpatory. In fact, it might just me the most exculpatory piece of physical evidence in the case.



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And they never found any of Adnan's hair on Hae's body, right? Sounds pretty exculpatory to me. WHY would CG not hammer that over and over during his trial? It seems so obvious.

Posted by: Eric Wolff | Nov 24, 2015 7:05:39 AM

Do they still have the hairs in evidence or are they amongst the missing as well?

Posted by: Lorraine | Nov 24, 2015 7:27:28 AM

One would think they'd at least determine the source of the hairs (human/animal). Another fine example of a shoddy investigation and associated defense.

Posted by: Anne | Nov 24, 2015 9:52:46 AM

The next project should be getting Kevin Urick disbarred. I would suggest making a chart of factual statements to the Court that were demonstrably false, and then add several of the clearest-cut Brady violations, for a grievance with the Maryland Bar.

Whether or not Adnan is factually guilty, this guy shouldn't be practicing law.

Posted by: RR | Nov 24, 2015 10:14:44 AM

Was looking for a "like" or "heart" button to praise your post RR.

Posted by: Chris | Nov 24, 2015 12:45:07 PM

RR, I am in full agreement!

Posted by: June | Nov 24, 2015 1:29:10 PM

Colin, didn't the judge give the State and defense ten days to contact the court to schedule a hearing? Has that happened? Is there a date? Thanks –

Posted by: Bev | Nov 24, 2015 1:32:58 PM

Don’t you feel a little hypocritical accusing the State of Brady violations after Undisclosed confidently declared the visit to Cathy’s house was not January 13, even though you possessed (and withheld) Cathy’s police interview where she indicated the visit did in fact take place on Stephanie’s birthday?

Posted by: Seamus Duncan | Nov 24, 2015 2:41:49 PM

Are these the hairs which were going to be tested at the conclusion of Serial? What's happened with that?

Posted by: Emily | Nov 24, 2015 3:20:00 PM

Eric: None of Adnan’s hairs were found on Hae. I don’t know why Gutierrez failed to press this issue more at trial.

Lorraine: Good question. We don’t know.

Anne: The two hairs were determined to be human hairs, not animal hairs.

RR: Prosecutors are rarely disciplined. It will be interesting to hear what comes out at the reopened PCR proceeding.

Bev: We should know soon.

Seamus: There were two different transcriptions of the Cathy interview, so we put it aside (and didn't notice the Stephanie comment) at the time we discussed her earlier in the podcast. That was a mistake, and I wish our statement about her having the wrong day were less definitive. Personally, I think she’s confabulating a few days, but it’s also not a big deal to me whether she has the right or wrong day. We will discuss Cathy more next episode. Nonetheless, a mistake was made. I wish that the State owned up to some of its own mistakes.

Emily: The DNA petition would be done after the current appeal, which deals with other issues.

Posted by: Colin | Nov 24, 2015 6:49:19 PM

Seamus, not sure that bloggers can commit Brady violations.

Posted by: FarFarAway | Nov 24, 2015 8:02:02 PM

Colin the Brady violations are just piling higher all the time. Will this all be used by Justin once there is a hearing?

Posted by: Elizabeth MM | Nov 25, 2015 3:51:59 AM

Leaving a hair on someone's body does not mean that you murdered them. I'm pretty sure the hair analysis info was presented at the second trial and it was not, in fact, exculpatory for Adnan.

Posted by: BonaFide | Nov 25, 2015 4:43:11 AM

RR, +1.

Posted by: Sandra | Nov 25, 2015 6:32:20 AM

BonaFide, leaving a hair on someone’s body doesn’t, indeed, prove you murdered them. But, the presence of a foreign unidentified hair on Hae’s body does raise the possibility that it belonged to Hae’s killer. If this information had been well presented and with the support of an expert witness, the jury just might have decided that this issue along with others created reasonable doubt as to Adnan’s involvement.

Posted by: HSMockTrialCoach | Nov 25, 2015 7:54:56 AM

Regarding prosecutorial misconduct, note that falsely convicted Michael Morton (who spent 25 years in jail for the murder of his wife & was freed in 2011 by the Innocence Project) actually held out & I believe he voluntarily stayed in prison longer until his relief package included some element of securing better ability to pursue justice against the prosecutor who withheld evidence, influenced witnesses, etc. Ken Anderson (prosecutor in the Morton case) did receive some punishment (10 days in jail and loss of license) and the rules in Texas were changed to help bring these out of control prosecutors to justice. Still just a slap on the wrist, but Morton's commitment to justice is notable. Perhaps Adnan can use his case to hold out for a better legal framework for pursuing justice against corrupt prosecutors in MD.

Posted by: ccatx | Nov 25, 2015 8:32:23 AM

Hi Colin. Is there any information on where on Hae's body the two unidentified hairs were found (is under her body, on an exposed part of her body etc).

Also, please could you explain how this information could be used as circumstantial evidence to support the Brady/cell tower claims.

Finally I would like to thank you for your honesty in actually admitting an error.


Posted by: liz | Nov 25, 2015 12:46:44 PM

Hi Colin, can you provide some examples of how Cristina might have pressed the hair sample issue more than she already did at trial?
Thank you!

Posted by: Anonymous | Nov 25, 2015 1:38:03 PM

ive listened to the autopsy podcast but im not clear on how they determined Hae was killed the same day she went missing...isnt it possible that she was held captive for a while

Posted by: Tra | Nov 25, 2015 3:33:34 PM

Elizabeth: He can use a lot of what we’ve found.

BonaFide: Your first sentence is correct. The hairs could have come from an innocent person, or even Bianca, as we noted. The second sentence is not correct. Evidence that two hairs found on a buried victim belonged to neither the victim nor the defendant is clearly exculpatory. We might debate the extent to which it was exculpatory, but it was clearly exculpatory, as HSMockTrialCoach notes.

ccatx: Thanks.

liz: Unfortunately, Bianca didn’t provide that information. Evidence of other Brady violations is circumstantial evidence that the State could have committed a Brady violation with the cell tower evidence. If the State withheld a key piece of the hair analysis until after the first trial, it makes I likelier that they withheld a key piece of the cell tower evidence.

Anonymous: As I said on the episode, Gutierrez tried to pin down Bianca during cross-examination but failed. She really needed to have the documentation with her during cross-examination and make it clear to the jury that two hair found on Hae belonged to neither Adnan nor Hae. That fact was not made clear enough during cross-examination.

Tra: The medical examiner testified that Hae could have died several days or a week after January 13th. The difficulty with a later death theory is the lack of marks of restraint on Hae.

Posted by: Colin | Nov 26, 2015 4:45:15 AM

Colin, when the prosecution states 'as a courtesy to the defence', are they implying they didn't have to find this answer out under Brady? Is this a way of pretending they didn’t commit a violation by implying they didn’t have this info, so couldn’t hand it over, until they kindly asked Bianco for more info? Is this their ‘don’t write anything down’ strategy again? Or, given Bianca must have tested this to be able to answer the question during a chat (without doing further analysis), is it still Brady as Bianco didn’t record this exculpatory info in a report, and/or because the defence did ask for it prior to trial?

Posted by: Cupcake | Nov 26, 2015 9:53:08 AM

Or could/should Christina have hired her own expert to analyse the hairs if she wasn't getting the info she needed from the state?

Posted by: Cupcake | Nov 26, 2015 9:53:56 AM

Colin - thanks for this.

Seamus - why so sensitive / defensive ???

Posted by: Michael | Nov 27, 2015 5:30:13 PM

Michael - Seamus and his cohort have been stridently braying about Adnan's guilt since Serial aired. Confidence in their proclamations is underscored by Serial producer Dana Chivvis' mocking assertion that either 1) Adnan murdered Hae or 2) Adnan is the unluckiest man on the planet.

They've shouted down every bit of evidence that points to any scenario that differs from the State's case. That was fairly easy initially, but as the potential exculpatory evidence keeps stacking up, and as information that contradicts the State's case keeps being uncovered, they're flailing. They've created an egregore of such dark negativity that it's taken on a life of it's own.

They've invested so much of their identity in "proving" Adnan's guilt, that no matter what the evidence to the contrary is, no matter how tenuous the links between Adnan and Hae's death are, they can't just sit back and say "You know what? I don't think he did it".

The sunk cost of all of that time and energy, the effort put into microscopically analysing transcripts and notes, it can't be recouped. So, they'll keep marching in their parade, and drumming that beat of "Adnan did it, Adnan did it" until they're completely drowned out.

Posted by: Squatch | Nov 30, 2015 6:10:23 AM

Colin - Was it mentioned anywhere if the two hairs appeared to be from the same person or each of the two could have been from two different individuals? Do we know any details about the length, relative appearance, color, etc?

Posted by: Emily | Nov 30, 2015 3:19:03 PM

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