Tuesday, April 1, 2014

Kevin Martin: Innocent.

Kevin Martin
In order to ensure justice and credence in our legal system, a series of checks and balances are in place.  Nowhere are these checks and balances so essential than in the criminal justice system.  In 1982, a seventeen-year-old boy named Kevin Martin was sent to prison for over twenty-six years for a rape homicide that he did not commit based on misrepresented FBI hair analysis.  Although Mr. Martin’s claim to innocence has finally been publically and scientifically acknowledged, there are still many questions left unanswered.

In November 1982, the body of nineteen-year-old Ursula Brown was found between a school yard and an apartment building in Southwest D.C., where she had been shot and raped.  Kevin Martin became a suspect in the case after being implicated by another individual who was originally charged with this very same offense.[1]  A pair of tennis shoes belonging to the victim was found near the scene, from which the prosecutor claimed a pubic hair had been recovered.  In addition to this claim, the prosecutor assigned to the case told Kevin Martin’s defense attorney that the FBI hair analysis report stated that the pubic hair found on the tennis shoes was, in fact, a direct match to the sample taken from Kevin Martin, and that the FBI would testify as such at trial.  Without any further inquiry into the FBI’s testing technology or independent testing conducted by the defense, Kevin Martin’s attorney told him that the hair, being a match, was enough to connect him to the crime scene.

In fact, however, the pubic hair was never actually recovered by either the police at the scene or by the original FBI Hair and Fiber examiner; rather, an FBI technician claimed that it had fallen out of the evidence bag when he opened it.[2]  Additionally, the original FBI report had merely stated that the hair strand was “like” that of Kevin Martin’s.[3]  More shockingly—the FBI agent’s notes had also indicated that the hair found in the evidence bag was “like” the hair on the victim’s own head.[4]  The reason for this extreme non-conclusiveness is because at the time, no forensic technology was available to draw a definite conclusion about whether the hairs were a match. At most, the FBI was able to determine that certain characteristics of a hair strand were “like” that of another’s, and therefore, that it “could” be a match.[5]  Accordingly, the FBI report was misleading to conclude that the hair found at the scene was “like” Kevin Martin’s and not further explain that the hair was also “like” essentially all other African American hair with similar characteristics; and the prosecutor’s claim that the hair allegedly found at the scene belonged to Kevin Martin was not only an intentional fabrication, but also scientifically impossible.

What’s even more disturbing is that, in violation of Brady v. Maryland, Mr. Martin was never informed of any of this for over twenty years.  Moreover, Mr. Martin’s attorney did not conduct any further investigation, failed to canvass the crime scene, never requested to examine the hair or even consult with an expert who would have repudiated and demolished the government’s knowingly false statement of the evidence.  To make matters worse for Mr. Martin, the government somehow mysteriously “lost” both the pubic hair and the semen sample, such that no additional or re-testing could be performed for over two decades.[6]

Ultimately, under North Carolina v. Alford, Mr. Martin took an Alford plea, in which he agreed to take a plea in order to avoid an even lengthier jail sentence, acknowledging that the prosecutor had enough evidence to convict him, however still maintaining his innocence.  The presiding judge, Judge Donald Smith, a former U.S. Attorney, asked the government at the plea hearing what the government’s evidence would show if the case had proceeded to trial.[7]  The prosecutor answered that the government’s evidence would have proven that the pubic hair discovered at the crime scene in fact belonged to Kevin Martin.[8]  Judge Smith, along with both the prosecutor and Mr. Martin’s defense attorney, should have known that this proffer of evidence was scientifically impossible.  Accordingly, Judge Smith should never have accepted Mr. Martin’s plea to murder.  

In 2007, Kevin Martin continued to maintain his innocence by writing a letter to the judge and asking for his freedom.  A few years later, with the help of his new attorney Bernie Grimm, and later on the Mid-Atlantic Innocence Project, a new DNA analysis was conducted after the government miraculously found both the original pubic hair and the semen, and Kevin Martin was found to be excluded as a potential perpetrator through the testing of the semen.[9]  Since 2009, Kevin Martin is one of five men who have been wrongly convicted based on false FBI hair analysis.  

How did this tragedy occur?  Mr. Martin’s defense attorney Bernie Grimm answered this question, stating: “Every check and balance our Constitution puts in place to protect the rights of a defendant failed Kevin Martin: a negligently conducted investigation, his incompetent former defense lawyer, misleading FBI analysis, a prosecutor who knowingly misrepresented the evidence to the court, and an indifferent judge who could care less about a 17 year old boy accused of a serious crime, all contributed to the heartbreaking event of Mr. Martin being sent to prison for over 26 years based on a false scientific conclusion surrounding a single pubic hair.”[10]  In so many words, it was our own justice system that failed Mr. Martin in this case, just as it failed the other four men in his similar situation, along with many others that have been exonerated after serving lengthy prison terms.  Had the police been more thorough, had the FBI produced more credible or honest results, had the prosecutor acted ethically and honestly, had the defense attorney done his due diligence, or had the judge been more interested in Kevin Martin’s story at the time, perhaps the unfortunate circumstances surrounding Mr. Martin’s fate could have been avoided.  

But that’s not what happened in this case. And unfortunately, we will never know why.  We will never know why the FBI chose to provide a report with a misleading result against an innocent man, why the prosecutor chose to completely misrepresent the report, why no further investigation was done on this case by neither the police nor Mr. Martin’s attorney, or why the Judge acted so indifferent toward the concept of justice in this case.  The most important truth we do know, however, is that Kevin Martin is innocent and it took over thirty years for that discovery to be made.  Thus, we can only hope that future law enforcement authorities, the government, defense attorneys, and even judges will work toward preventing situations like this from reoccurring in the future.  Hopefully, law enforcement, prosecutors, and defense attorneys can agree on one thing: Kevin Martin’s past fate should not be repeated.  And hopefully, as a result of Kevin Martin’s story, prosecutorial actions will be consistently carried out with integrity and good-intent, and defense attorneys will appreciate the importance of their obligation to provide competent and zealous representation.

Most significantly, however, is the importance that prosecutors, defense attorneys, and even judges remain actively knowledgeable on forensic sciences, including their technological advancements as well as their limitations.  With new forensic processes coming out while old procedures are invalidated, all criminal law practitioners should remain current on forensic technology, starting, for instance, by reading the NAS report in order to better and more fully understand these sciences and types of evidence.  Ultimately, abiding by these standards will not only help our justice system act more effectively and efficiently in affecting criminal prosecutions, but—more importantly—will prevent innocent persons similar to Kevin Martin from being wrongly accused and convicted by our system.

As for Kevin Martin, he is happy to be finally getting the recognition that he deserves after serving a lengthy prison sentence for a crime he did not commit—a tragic life circumstance that most of us can’t even begin to imagine.  In an interview with Mr. Martin himself, he stated “I believe the truth will be known,” noting that “I’m here to tell my truth [and] what I lived through”—an experience that no person should ever be subjected to in our criminal justice system.[11]

Monika Mastellone
Senior Editor, Criminal Law Practitioner 

[1] Interview with Bernie Grimm, Criminal Defense Attorney, The Law Office of Bernard Grimm, in Washington, D.C. (March 27, 2014) (noting that the gun used in the commission of the crime was actually found in the home of this other individual).
[2] 2005 Defense filing of “Finding of Facts” at 1-3, United States v. Kevin Martin, F-6679-82 (citing the FBI hair analysis report).
[3] Id. at 1 (citing the FBI hair analysis report).
[4] Id. at 3 (citing FBI Hair Examiner’s notes).
[5] See Strengthening Forensic Science in the United States: A Path Forward, National Research Council, (The National Academic Press 2009) 157-161 (describing the unreliability and development of hair analysis).
[6] Interview with Bernie Grimm, supra note 1.
[7] Finding of Facts, supra note 2, at 4 (citing the 1984 plea hearing transcript).
[8] Id.
[9] Interview with Bernie Grimm, supra note 1.
[10] Id.
[11] Telephone Interview with Kevin Martin (March 29, 2014); E-mail from Kevin Martin, to Monika Mastellone (March 30, 2014) (on file with author). 


  1. An excellent article that covers a tragic case and offers suggestions as to what's necessary going forward to avoid such travesties in the future. However, it's not the justice system that fails the wrongfully convicted, it's the people that are charged with ensuring that the system works. I'm an advocate of reward and punishment when it comes to all work and it should be especially applied within the justice system to those who manage the system. Prosecutors who lie and mislead, police who botch investigations and defense lawyers asleep at the wheel all need to face their own "bar of justice." There are enough awards that are conferred so let's also figure out a way in which prosecutors, cops, defense attorneys, investigators, judges, etc. are called out when such appalling mistakes put an innocent man or woman behind bars. Though it may be years later, promoting who did what to whom may not be directly possible, but at least the publicizing of the errors will serve to embarrass the contributors, perhaps affect their then current position and serve notice on those currently working in the justice system that bad acts have consequences.

  2. I have a friend who needs a lawyer. Is there someone that I can call for a criminal lawyer? I need a lawyer who does a good job.