Page:Glossip v. Gross.pdf/57

 Cite as: 576 U. S. ____ (2015)

7

BREYER, J., dissenting

who is not willing to impose the death penalty. See Rozelle, The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation, 38 Ariz. S. L. J. 769, 772–793, 807 (2006) (summarizing research and conclud­ ing that “[f]or over fifty years, empirical investigation has demonstrated that death qualification skews juries toward guilt and death”); Note, Mandatory Voir Dire Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification, 10 Roger Williams Univ. L. Rev. 211, 214– 223 (2004) (similar). Another is the more general problem of flawed forensic testimony. See Garrett, supra, at 7. The Federal Bureau of Investigation (FBI), for example, recently found that flawed microscopic hair analysis was used in 33 of 35 capital cases under review; 9 of the 33 had already been executed. FBI, National Press Releases, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review, Apr. 20, 2015. See also Hsu, FBI Admits Errors at Trials: False Matches on Crime-Scene Hair, Washington Post, Apr. 19, 2015, p. A1 (in the District of Columbia, which does not have the death penalty, five of seven defendants in cases with flawed hair analysis testimony were eventually exonerated). In light of these and other factors, researchers estimate that about 4% of those sentenced to death are actually innocent. See Gross, O’Brien, Hu, & Kennedy, Rate of False Conviction of Criminal Defendants Who Are Sen­ tenced to Death, 111 Proceeding of the National Academy of Sciences 7230 (2014) (full-scale study of all death sen­ tences from 1973 through 2004 estimating that 4.1% of those sentenced to death are actually innocent); Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & C. 761 (2007) (examination of DNA exonerations in death penalty cases for murder-rapes between 1982 and 1989 suggesting an analogous rate of between 3.3% and 5%).