Years Of Prosecutors Not Divulging Tainted Evidence And Flawed Lab Reports Coming To Light.
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.
Michael R. Bromwich, a former federal prosecutor and the inspector general who investigated the FBI lab, said in a statement that even if more defense lawyers were notified of the initial review, "that doesn't absolve the task force from ensuring that every single defense lawyer in one of these cases was notified." He added: "It is deeply troubling that after going to so much time and trouble to identify problematic conduct by FBI forensic analysts the DOJ Task Force apparently failed to follow through and ensure that defense counsel were notified in every single case."
Problems Never Fully Disclosed By Feds
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.
How Bad Is It Still?
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.
Available records did not allow the identification of defendants in roughly 100 of those cases. Records of an unknown number of other questioned cases handled by federal prosecutors have yet to be released by the government.
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.