The use of unscientific evidence to obtain convictions was not limited to Malone, according to Dr. Frederic Whitehurst, considered to be the premiere whistle-blower in this whole sordid episode.
It was Whitehurst and his colleagues, lawyer David Colapinto, and the staff at the National Whistleblowers' Center, who kept this story alive. Dr. Whitehurst originally exposed forensic flaws that may have led to many wrongful convictions, as reported in last week's Washington Post front-page story. For years, Dr. Whitehurst has urged the Justice Department to act on systemic flaws that he witnessed while serving as the top explosives expert in the FBI Crime Lab. The NWC and Whitehurst assisted the Washington Post in its investigation into the Justice Department's failure.
In response to the widespread outrage and condemnation of the FBI lab and Dr. Whitehurst's original whistleblower disclosures, the Justice Department formed a Task Force to review thousands of cases impacted by Dr. Whitehurst's allegations and to determine if any individuals were wrongly convicted.
Although the Justice Department and FBI pledged to correct their mistakes, documents obtained by the NWC through the Freedom of Information Act (FOIA) suggest a government attempt to suppress embarrassing mistakes at the expense of innocent defendants, lawyer Colapinto said.
As reported by the Washington Post, convicted defendants were left uninformed of serious flaws in the forensic evidence presented in their cases long after the Justice Department had confirmed that serious problems existed, according to Colapinto.
When he left the FBI Crime Lab in 1998 after 16 years of service, Dr. Whitehurst vowed to continue his work to find all the defendants harmed by the FBI's misconduct. It was then he established the NWC's Forensic Justice Project.
Whitehurst said, "The (Washington ) Post came to us after the Washington DC Public Defender Sandra Levick proved Gates innocent with DNA evidence. It was only after I got out of the FBI that I started researching the Malone cases. I have a tremendous file that the Post also has that will show you the over 1800 files we have identified where Malone was involved."
Sandra Levick found out about Gates as a result of a DOJ disclosure made to Gates' prior attorney that DOJ was looking at Gates' case as a result of the 1997 DOJ Inspector General report on FBI Lab practices and alleged misconduct raised by Whitehurst. DOJ never provided any further notification to the prior attorney about what happened. The judge appointed the Public Defender Service and the case was assigned to Levick.