The American Bar Association and trial lawyers across the country are outraged over the recent reports circulating of continued integrity issues being found within the Department of Justice Forensic Labs and the duty of prosecutors who know of tainted case evidence, and don't notify defense attorneys. The ABA and others have proposed stronger ethics rules for prosecutors to act on information that casts doubt on convictions; opening laboratory and other files to the defense; clearer reporting and evidence retention; greater involvement by scientists in setting rules for testimony at criminal trials; and more scientific training for lawyers and judges.
They also propose more oversight by standing state forensic-science commissions and funding for research into forensic techniques and experts for indigent defendants. According to an in-depth investigation by Washington Post reporters Spencer S. Hsu, Jennifer Jenkins and Ted Mellnik; Justice Department officials have known for years that flawed forensic work led to the convictions of still potentially innocent people. And prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled. Feds responded to the story by saying this is "old news." It's not old, just ongoing because nothing has changed.
Problems Never Fully Disclosed By Feds
Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials. In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.
As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects. The Post found that while many prosecutors made swift and full disclosures, many others did so incompletely, years late or not at all. The effort was stymied at times by lack of cooperation from some prosecutors and declining interest and resources as time went on. Overall, calls to defense lawyers indicate and records documented that prosecutors disclosed the reviews' results to defendants in fewer than half of the 250-plus questioned cases.
Attorney's representing the case of a Maryland man serving a life sentence for a 1981 double killing is just another case in which federal and local law enforcement officials knew of forensic problems but never told the defendant. Attorneys for John Norman Huffington, say they only recently learned of potentially exculpatory Justice Department findings from the Washington Post investigation. They are seeking a new trial. Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.
Two cases in D.C. Superior Court show the inadequacy of the government's response. Santae A. Tribble, now 51, was convicted of killing a taxi driver in 1978, and Kirk L. Odom, now 49, was convicted of a sexual assault in 1981. Key evidence at each of their trials came from separate FBI experts who swore that their scientific analysis proved with near certainty that Tribble's and Odom's hair was at the respective crime scenes. But DNA testing this year on the hair and on other old evidence virtually eliminates Tribble as a suspect and completely clears Odom.
Donald E. Gates, 60, served 28 years for the rape and murder of a Georgetown University student based on testimony that his hair was found on the victim's body. He was exonerated by DNA testing in 2009. But for 12 years before that, prosecutors never told him about the inspector general's report that claimed their star witness, FBI Agent Michael Malone, was one of the agents the DOJ investigated for providing flawed test results in the FBI lab. After The Post contacted U.S. Attorney Ronald C. Machen Jr. who said his office would try to review all convictions that used hair analysis.
Justice Department spokeswoman Laura Sweeney said the federal review was an "exhaustive effort" and met legal requirements, and she referred questions about hair analysis to the FBI. The FBI said it would evaluate whether a nationwide review is needed. "In cases where microscopic hair exams conducted by the FBI resulted in a conviction, the FBI is evaluating whether additional review is warranted," spokeswoman Ann Todd said in a statement. "The FBI has undertaken comprehensive reviews in the past, and will not hesitate to do so again if necessary."
Seeking to learn whether others shared Donald Gates's fate, The Post worked with the nonprofit National Whistleblowers Center, which had obtained dozens of boxes of task force documents through a years-long Freedom of Information Act fight. Task force documents identifying the scientific reviews of problem cases generally did not contain the names of the defendants. Piecing together case numbers and other bits of information from more than 10,000 pages of documents, The Post found more than 250 cases in which a scientific review was completed.
How Accurate Is Forensic Analysis?
Many forensic techniques developed in crime labs to aid investigators, and research into their limits or scientific validity was never a priority. Except for DNA, no method has been shown to be able to consistently and accurately link a piece of evidence to an individual or single source.