By William Fisher
Back in April, this reporter did a story about the scandal that arose in the mid-1990s at the FBI criminal laboratory when it was revealed that results of forensic tests on as many as 10,000 cases had been falsified or otherwise presented to juries in ways that were scientifically unfounded and virtually guaranteed to produce guilty verdicts.
The head of the FBI and the Attorney General of the US acknowledged at the time that serious mistakes had been made. But no one ever told the defense attorneys or the defendants.
The DOJ brass formed a Task Force to investigate. They concentrated on the work of a senior forensics analyst, Michael Malone, who was dismissed. That so-called investigation went on for years. In silence.
Until yesterday, that is.
Two days ago was the day the Washington Post announced that the DOJ would now perform analyses of an undetermined number of the cases that were tried during this period and resulted in guilty verdicts. Those convicted are scattered throughout prisons all of the US. Some have completed their sentences and have been released.
Prism talked yesterday with C. Fred Whitehurst, the former FBI agent who played the pivotal role in blowing the whistle on the FBI lab. He recalled his previous talk with Prism:
“It is exactly what we were talking about a few months ago. The right angle to this is huge. The FBI is agreeing to look at 10,000 cases when in fact the FBI taught local, state and federal crime lab personnel this analytical technique for decades. That means in this nation alone there are virtually hundreds of thousands of cases in jeopardy where forensic hair analysis was conducted. We are seeing a holocaust of law enforcement comes to light which has been taking place now for decades under the nose of an unsuspecting American nation,” Whitehurst told Prism.
A holocaust of law enforcement comes to light which has been taking place now for decades under the nose of an unsuspecting American nation — C. Fred Whitehurst, Former FBI Agent
He added: “What changed their minds was the innocence cases in DC that recently were established. And the Washington Post article from Spencer Hsu. What you would look for as a tell in cases is if hair was the only real significant evidence that tied defendants to crimes. Guys in the lab wanting to ‘solve’ the case and be heroes might have pushed the envelope and been the guy who did what no one else could do. I have no doubt there will be more exonerations.”
Mike German of the ACLU, a former FBI Special Agent, believes the DOJ/FBI decision was triggered by pressure over failing to notify defense lawyers or judges that the forensics information was being provided only to prosecutors.
“I think the answer to your ‘why’ question is the Washington Post investigative expose from a few months ago that revealed that the FBI/DOJ had not made a significant effort to find persons convicted based on the suspect FBI forensics, “ German told Prism.
In April, the Washington Post identified two men convicted largely on the testimony of FBI hair analysts who wrongly placed them at crime scenes. The Post wrote: “The government has moved to overturn the conviction of one of the men, who was convicted of a sexual assault. A judge has vacated the conviction of the other man, who was convicted of killing a taxi driver.”
Whitehurst told Prism the FBI would not be using its old, outdated methods to analyze hair samples. He explained: “The FBI quietly changed its protocol a few years ago so that now any hairs that it matches must be then analyzed with DNA analysis.”
He added: “Sadly, though, the FBI changed its protocol realizing that the previous was seriously flawed, convicted defendants were never notified in any way at all. As for the FBI teaching local, state and federal crime lab personnel, that is true. What does that say for all the convictions based on hair analysis conducted by local, state and federal crime labs across the US?”
The Post reported that the Justice Department is partnering with the Innocence Project, a private group, to provide an independent, third-party assessment of the government’s review. The advocacy group is dedicated to reforming the criminal justice system and to exonerating the wrongfully convicted through DNA testing.
The National Association of Criminal Defense Lawyers also will work with the government on the effort.
The Post quoted former Justice Department inspector general Michael R. Bromwich, who investigated the FBI lab in the 1990s and uncovered serious problems with some FBI lab analyses, called the review “an important and necessary response to the multiple documented cases in which flawed hair microscopy analysis and testimony have led to wrongful convictions.”
The Post quoted him as saying, “Working with the Innocence Project and the National Association of Criminal Defense Lawyers is a step in the right direction. Nothing can give back the many years those wrongfully convicted defendants spent in prison, but at this point all participants in the criminal justice system — prosecutors, defense lawyers, and the courts — need to make extraordinary efforts to ferret out as quickly as possible any similar cases,”
Sources close to the DOJ told Prism that there could also be a connection between the speed of the FBI lab announcement and Attorney General Eric Holder’s current difficulties with Republicans in Congress over the “Fast and Furious” operation, for which Holder has been held in contempt of Congress.
The American Bar Association wrote today that, “According to the Post, hundreds of defendants are still in prison or on parole for crimes in which FBI hair and fiber experts may have wrongly identified them as suspects. And the review of hair evidence issues focused on just one FBI agent while ignoring other problems that may have led to false evidence matches,” the story says.
The ABA added, “Justice Department officials maintain they fulfilled their legal obligations by telling prosecutors of errors and they did not need to directly contact defendants.”
DNA tests this year in two Washington, D.C., cases virtually clear a man convicted of killing a taxi driver in 1978 and completely clear a man convicted of a 1981 sexual assault. Both prosecutions relied on evidence of hair matches. But the cases weren’t included in the crime lab review. The Post has a separate story on one of the defendants, Santae Tribble, who was arrested at 17 and served 28 years in prison after his conviction, the ABA reports, adding:
“The review came too late in another case, the Post investigation found. According to a prosecution memo, Benjamin Herbert Boyle would not have been eligible for the death penalty because of problems in the FBI lab work. He was executed in 1997, a year after the investigation of the lab began.”