"Second, the United States has not responded to our request for a broader investigation to include all cases where the prosecution relied on FBI microscopic analysis of hair or fiber without DNA testing to obtain a conviction. As is more fully set forth in our letter of April 14, 2010, hair or
fiber microscopy has been proven too lacking in a scientific basis and too unreliable to support the kind of testimony that was used to convict Mr. Gates and, it is feared, many others. This is so whether or not the individual examiner's integrity has been called into question as was Mr. Malone's."
"Third, the United States has not responded to our request for a more transparent investigation and a greater opportunity for adversarial testing and judicial oversight. As is discussed at length in our April 14, 2010, letter, the United States risks repeating the failures of the DOJ Task Force and the United States Attorney's Office to apprise Mr. Gates of the results of the OIG Report by yet again resorting to a secret inquiry with respect to others who may have been affected."
The court ordered DOJ to turn over its review of Gates case to Levick. DOJ never had transmitted the report to the prior attorney even though it had been completed many years before as part of he review of lab cases resulting from Whitehurst's allegations about the lab.
As it turned out, DOJ had conducted a paper review of Malone's work in the Gates case, but the review was not conclusive and no trial transcripts existed. Levick then asked the court for an order to locate the original hair evidence in Gates case for DNA testing. When the sample was later found the DNA test ruled out Gates thus contradicting Malone's testimony that the hair evidence matched Gates. As a result, the court released Gates in late 2009.
David Colopinto, counsel to the National Whistleblowers Center, tells us that "Malone's misconduct in cases was known in the FBI dating back to the 1980s and the knowledge that Malone was testifying falsely in many cases became more widespread as a result of Dr. Whitehurst's whistle blowing and the subsequent IG investigation. DOJ was certainly on notice of the magnitude of the problem by the mid-1990s."
Of the inmates and former inmates who were convicted with unlawful evidence, it is safe to say that no one knows precisely how many there are or where they are. Nor does the government appear to have any plan to identify them and provide new trials or rehearings. Some doubtless died in prison. Others have been paroled. But whistleblowers believe the bulk of prisoners continue to be prisoners.
And they vow to keep up the pressure until justice is done.