Part 5: Convicted by a hair
By Steve Mills and Ken Armstrong
Tribune Staff Writer
November 18, 1999
In her opening words to the newly seated jury, Jefferson County State's Atty.
Kathleen Alling described how one of the most brutal and confounding
murders in local history finally gave way to the wonders of science.
For months, she told the jury, police had been unable to unravel the July 1987
murder of 10-year-old Amy Schulz. Thousands of leads had been followed, yet
each had hit a dead end.
But there was one clue, Alling said, that would prove crucial. Two hairs
apparently left by the murderer had been found on Amy's body, and police
crime lab scientist Kenneth Knight knew they "would be the key in revealing
the identity of Amy's killer."
Describing the forensic testimony as based upon "fact and certainty," Alling
said that Knight and other prosecution experts would prove that the defendant,
Cecil Sutherland, had murdered and sexually assaulted Amy.
The next day, however, Knight testified only that his microscopic examinations
indicated the two hairs "could have" come from Sutherland. They also could
have come from someone else, he acknowledged. As for just how many people
the hairs could have come from, he could not say.
The rest of the prosecution's evidence was similarly limited--fibers, dog hairs
and a tire track that, according to Knight and the state's other experts, "could
have" connected Sutherland to the crime.
But that did not stop Alling's co-prosecutor from violating guidelines
established by appeals courts on how such evidence can be characterized.
Several times in his closing argument, Matthew Schneider dropped the "could
have" required to describe such evidence accurately and fairly, saying, for
example, that fibers from Amy's clothing were found in Sutherland's car.
The jury found Sutherland guilty in 1989 and sentenced him to death.
Even though its reliability has been seriously challenged, the type of haircomparison evidence at the center of the Sutherland case has been used to help
win criminal convictions for more than a century.
In Illinois, prosecutors relied on hair-comparison evidence in at least 20 cases
where the defendant was sentenced to death, and it played a significant role in
at least half of those cases, according to a Tribune investigation of all 285
death-penalty cases in Illinois since capital punishment was reinstated in 1977.
In some death-penalty cases, hair evidence has been especially crucial because
the prosecution's other evidence consisted of nothing more than a jailhouse
informant or accomplice testimony, two types of evidence that often prove
unreliable.
But over the last decade or so, hair-comparison evidence has been exposed as
notoriously untrustworthy. Some courts outside Illinois have begun restricting
or even forbidding its use, saying that visual hair comparisons are scientifically
suspect and have little value as proof.
Noting that hair evidence often is abused and mischaracterized by prosecutors,
some judges and legal scholars across the country have begun criticizing it as
"junk science," "pseudo-science" and even "ignorance masquerading as
science."
The use, and abuse, of hair analysis is one more way prosecutors have shored
up weak cases in Illinois, diluting the credibility of the death-penalty system.
The result can be wrongful convictions and costly court settlements paid to
exonerated inmates.
The dangers of hair evidence have become increasingly apparent thanks largely
to the advent of DNA testing, which offers the very precision that visual hair
comparison lacks.
In a string of cases in the United States and other countries, DNA evidence has
cleared defendants who had been wrongly convicted with the help of hair
comparisons. Some of those defendants had been sentenced to death, including
Dennis Williams and Verneal Jimerson in the infamous Ford Heights Four case
in Illinois and Ronald Keith Williamson in Oklahoma.
In Williamson's case, a prosecution witness said four hairs found at a murder
scene were microscopically consistent with Williamson's hair. But in 1995, a
federal judge vacated Williamson's conviction and ordered a new trial, saying
hair analysis is so "scientifically unreliable" that it should not be permitted as
evidence of guilt. In a dramatic epilogue, the charges against Williamson, who
spent 12 years awaiting execution, were dismissed earlier this year after DNA
evidence cleared him.
Barry Scheck, a professor at New York's Benjamin Cardozo School of Law and
a leading DNA expert, tracks cases nationally where DNA evidence has
exonerated someone convicted of a crime. There have been 65 such cases,
Scheck said, and in 18 of them, prosecutors used hair analysis to help win the
conviction. Scheck calls hair analysis "junk."
In the Canadian province of Ontario, the volume and types of hair and fiber
evidence that helped convict Guy Paul Morin of a 9-year-old girl's murder
strongly resembled those used by Jefferson County prosecutors in Sutherland's
case. A hair found on the victim could have come from Morin. Three hairs
found in Morin's car could have come from the victim. Fibers collected from
the victim's clothing and bag could have come from Morin's car and home.
DNA tests exonerated Morin in 1995, and last year a special inquiry
commission created to investigate what went wrong with the case concluded,
among other things, that jurors had been blinded by bad science.
"Worthless evidence plus worthless evidence plus worthless evidence may still
logically amount to a worthless case, but it may not be properly evaluated as
such by the trier of fact," the commission wrote.
"The jury was inundated with so many pieces of evidence which had dubious
probative value--'it could have been his hair,' 'it could have been her hair,' 'it
could have been his fibers,' . . . that they acquired in the jury's minds a
significance which they did not (or should not) possess, individually or
cumulatively."
Sutherland, now 44, was convicted before DNA tests began regularly
debunking convictions that had been based on hair analysis. When Sutherland's
initial appeal was denied in 1992, two Illinois Supreme Court justices
expressed grave doubts about the prosecution's case.
Dissenting from the court's decision to uphold Sutherland's conviction, Justice
William Clark--joined by Justice Charles Freeman--wrote that "nearly half of
the proffered circumstantial evidence had holes in it."
"In my opinion," Clark wrote, "the sum total of all of this circumstantial
evidence leads one to the less-than-convincing belief that it 'could have been'
the defendant who committed this brutal crime."
Inflating evidence's value
In the world of forensic science, some evidence, such as DNA or fingerprints,
can be so telling that it all but seals a suspect's guilt, linking the suspect to a
crime scene or to the victim while excluding everyone else.
But other forensic evidence, such as the visual comparison of hairs and fibers,
has far less value because it lacks the unique qualities that allow for a match, or
positive identification.
Nonetheless, prosecutors in Illinois and elsewhere have turned to such evidence
in all kinds of criminal cases--sometimes dressing it up as hard science for illinformed jurors and exaggerating its meaning with sweeping language and
spurious statistics, according to the Tribune investigation.
As a form of evidence, hair analysis has changed little since the 19th Century.
A technician takes different hairs, puts them under a microscope and looks for
similarities when studying such characteristics as color and diameter. It is a
highly subjective test, one in which the examiner's skill and integrity are
crucial. Such examinations are typically performed by police crime-lab
technicians.
Some prosecutors have taken liberties in describing lab results and
probabilities, which never have been established through rigorous science.
Prosecutors have turned "similar" into "identical," or, worse yet, stated flat out
that certain hairs came from a defendant or victim--a conclusion that hair
comparisons cannot support.
Reviewing courts in Illinois have, on occasion, thrown out convictions because
prosecutors used language or statistical sleight of hand that inflated hair
evidence's value. But more often, those courts have deemed such actions
harmless.
When Williams was convicted of a double murder and placed on Death Row in
1978, Illinois State Police forensic examiner Michael Podlecki testified that
two scalp hairs found in Williams' car were "similar" to victim Carol Schmal's
and a third hair was "similar" to victim Larry Lionberg's. Podlecki provided the
same testimony at co-defendant Jimerson's 1985 trial, in which Jimerson was
sentenced to die.
But in 1986, a different examiner for the state police put hair analysis'
imprecise nature on full display by disputing Podlecki's findings that the three
hairs were similar to the victims' hair. This examiner said one of the three hairs
did not even come from a person's scalp. It was "a body hair of some sort," the
examiner wrote in his report. Three years ago, Williams and Jimerson were
exonerated by DNA evidence and freed.
Some courts across the country have become so wary of hair analysis that they
say it can support a guilty verdict only if it is combined with other substantial
evidence.
Last year, the Missouri Supreme Court vacated the death sentence in a case
with forensic evidence of questionable value. The evidence included analysis of
hairs, fibers and metal shavings, and DNA testing that indicated the victim's
genetic profile was consistent with hairs found in the defendant's van. Less than
one half of 1 percent of the population shares that profile, the evidence showed.
Under an unusual state law requiring it to consider "the strength of the
evidence" when reviewing a death sentence, the court ruled the evidence was
sufficient to convict but not to execute. The court reduced the defendant's
sentence to life imprisonment.
The evidence in that case, which included DNA, appeared stronger than that
used to put Sutherland on Illinois' Death Row.
A case with few clues
On the night of July 1, 1987, Amy Schulz left her home in the small town of
Kell, in Downstate Marion County, to search for a brother who had gone out
earlier looking for one of the family dogs, Biscuit. Amy never returned.
Rescue workers searched for her until 2 a.m. The next day, a worker checking
on an oil well spotted Amy's body on an access road in adjacent Jefferson
County.
The scene offered few clues. There were no fingerprints and no DNA suitable
for testing. Sheriff's detectives found no witnesses. The autopsy showed Amy
had been choked to death or at least to unconsciousness and then sexually
assaulted. Her throat was slit.
Amy's murder generated outrage among local residents and pressure on
authorities to find the killer. The director of the state police vowed that no
expense would be spared in solving the case.
Two dozen men in Jefferson County provided hair samples for comparison to
the two hairs found on Amy's body. Still, investigators could not make an
arrest.
Cecil Sutherland, an industrial maintenance worker from nearby Dix, became a
suspect in October 1987 after he was arrested in Glacier National Park in
Montana for sniping at passing cars. One bullet, according to authorities,
pierced a park employee's car door and grazed the employee.
Montana authorities called the Jefferson County sheriff's office for background
information on Sutherland. That sparked an interest in Sutherland as a potential
suspect in Amy's killing, in part because he had lived near the Schulz family.
Soon after, detectives from Jefferson County went to Montana to examine
Sutherland's car.
Sutherland pleaded guilty in Montana to the federal charges and was sentenced
to 15 years in prison. He was being held at the federal penitentiary in
Leavenworth, Kan., when, nearly a year to the day after Amy's murder, he was
indicted on charges of murder, aggravated kidnapping and aggravated criminal
sexual assault.
Without fingerprints, an eyewitness or a confession, State's Atty. Alling and an
attorney from the Illinois attorney general's office, Matthew Schneider, had to
rely on the forensic evidence--dog hair and human pubic hair, clothing and
automobile upholstery fibers and a tire track at the crime scene.
State police experts who examined the evidence were forced to use qualifying
terms to describe it. Dog hair found on Amy's body was "consistent," the
experts testified, with the dog hair collected from Sutherland's car. The hair in
the car had been shed by Sutherland's dog, Babe.
The human hairs and the fibers were consistent, too, and the tread from the
right front tire of Sutherland's car looked like the tire track from the crime
scene, the experts said. Carpet fibers found on Amy's body were consistent
with fibers from Sutherland's car, and clothing fibers found in the car were
consistent with clothes Amy was wearing the day she died.
Not one of the prosecution's experts could say there was a positive
identification.
Prosecutors said, too, that knives Sutherland had with him while camping in
Montana showed he had a propensity to use them--although nothing tied any of
the knives to Amy's murder.
The defense, led by Jefferson County Public Defender James H. Henson, used
its own forensic expert, Richard Bisbing, to explain the weaknesses of hair and
fiber comparison evidence and how it cannot positively identify a suspect.
"Certainly, we know that hair evidence, in and of itself, is not conclusive
evidence. It's not like fingerprints," Bisbing told the Tribune.
Although Bisbing testified on Sutherland's behalf, he supported many of
Knight's findings, saying certain hairs and fibers could have linked Sutherland
to the crime. But, Bisbing said in the interview, "it doesn't mean that there can't
be another dog or another garment out there that had left that evidence."
To help demonstrate how microscopic analysis cannot link hair to only one
source, Henson had two interns collect hair from five dogs. The hair from one
of the dogs, Bisbing told the jury, also was similar to the hair found on Amy's
clothes.
An executive from Cooper Tire Co., which made the tire that officials said left
the track near Amy's body, testified there were many such tires on the road
throughout the country, though no figures were given.
Moreover, a Sutherland friend has said in an affidavit that he put the Cooper
tire on Sutherland's car--but after the murder. He told Sutherland's lawyers, he
said, but was not called to testify.
A relative of Amy's, who was one of the last people to see her alive, testified
that she asked him for a ride into town so she could look for her dog. He
refused, he testified, because he was in a hurry to get to work--even though he
was going in the same direction.
In 1993, Marion County prosecutors accused the relative of being a sexual
predator and alleged he had molested four boys going back more than a decade.
In a plea bargain, he was convicted of sexually assaulting one boy and received
a 7-year sentence.
Power of closing arguments
In closing arguments, prosecutors have sometimes taken the opportunity to
inflate the value and meaning of evidence. The Sutherland case was no
different.
Schneider, while addressing the jury, once referred to hair and fiber analysis as
an "exact" science. He also repeatedly stated that fiber evidence identified
Sutherland--and no one else--as Amy's killer. In several passages of his
argument, the "could have" was gone.
He told the jury, "Those fibers on her clothing came from the defendant's car."
Later, he added: "Fibers from the shorts were found in the passenger side of the
car."
Despite Schneider's characterization, fiber evidence shares most of hair
evidence's shortcomings. Although some chemical tests can be conducted in
addition to visual comparisons, those tests cannot conclusively identify a fiber
as coming from one, and only one, source.
Earlier this year, the FBI claimed fiber tests implicated a group of drug users in
the slayings of three tourists at Yosemite National Park. But the agency then
suffered the embarrassment of having a motel handyman confess to the
murders, discrediting the agency's touted forensic evidence.
Schneider, in an interview, defended his closing statements in Sutherland's
case. "My argument," he said, "contained conclusions that were based on fair
inferences from all the forensic evidence."
Henson and his co-counsel, Bernard Minton, tried to counter the prosecution's
strong words.
But Schneider's argument proved powerful. "They told us that hair matched.
They said the fibers matched," said juror Michael Werling, who operates a
liquor store near Olney.
Said another juror, a quality-control worker at a dairy: "It was real clear-cut:
the hair, fiber, the tire track. Each pointed to him."
It took jurors only four hours to convict Sutherland. It took them less than two
hours to sentence him to death.
In 1992, the Illinois Supreme Court ruled that Schneider's remarks about the
fiber evidence were improper because they inflated its value. But, in the
majority opinion, Justice James Heiple wrote that the other evidence was so
"overwhelming" it was unlikely the remarks affected the verdict. The court
upheld the conviction and death sentence.
In his dissenting opinion, Justice Clark derided the majority's description of the
evidence as "overwhelming," calling that characterization "grossly in error."
Sutherland's family believes the case's weaknesses eventually will be
recognized by the courts and he will be exonerated.
"They had all this scientific evidence, as they call it. But none of it came back
positive," said his mother, Joan, who visits him regularly at Menard
Correctional Center. "That all came back iffy.
"How can you do what they're doing to him when the best you got is maybe?"