Convicted by a hair. The jury found Sutherland guilty in 1989 and sentenced him to death.

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Convicted by a hair Steve Mills and Ken Armstrong, Tribune Staff Writer In her opening words to the newly seated jury, Jefferson County State's Atty.

1 Convicted by a hair Steve Mills and Ken Armstrong, Tribune Staff Writer 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 hair-comparison 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.

2 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

3 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-thanconvincing 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 ill-informed 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.

4 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

5 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.

6 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.

7 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.

8 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?" Copyright 2015, Chicago Tribune

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