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Wednesday, April 18, 2012

American Bar Association Wants Changes After Report Slams DOJ

Years Of Prosecutors Not Divulging Tainted Evidence And Flawed Lab Reports Coming To Light... by Jack Swint 

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

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.

How Bad Is It Still?

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.

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.

 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.


DNA segments from a sample are compared to DNA profiles collected from convicted felons, crime scene investigations and unidentified individuals. Scientists calculate the probability that two DNA profiles are from different people. Errors can occur if DNA samples are damaged or contaminated from improper handling. Limited amounts or mixtures of DNA profiles can increase misinterpretation of results. One case study ended up shutting down the Houston Police Department Crime Laboratory DNA division for several years after 2002 because of problems with the education and training of examiners, misleading testimony and improper evidence storage, leading to at least three exoneration's and retesting of thousands of cases.


A crime scene print is compared to a suspect's print or to those in a database. Analysts compare factors such as ridge count, shape, thickness, creases or scars and determine matching feature "points." Matching and interpreting prints can be subjective and vary between examiners, whose level of training can range from formal programs to informal monitoring. Another case study inside the Houston Police Department Crime Laboratory in 2009, found crime lab audit irregularities in more than half of fingerprint examinations sampled. Officials hired consultants to review 4,300 cases and work through a 6,000 case backlog.


Professionals declared erroneous handwriting matches or genuine signatures in 6.5 percent and 3.4 percent of cases, respectively, in recent studies. Handwriting from the same individual can be naturally inconsistent, so determining whether a comparison represents two different people can be unreliable.


Polygraph equipment measures the variability of a person's heart rate, blood pressure and respiratory rate when asked a series of questions. Body changes registered by polygraph equipment can be subjective to interpret, caused by anxiety rather than guilt. A 2003 National Academy of Sciences panel found polygraph testing lacks sufficient scientific validity and accuracy to justify its use in screening federal employees but useful as an investigative tool. Several federal circuit and state courts deem polygraph evidence inadmissible.

Firearm Evidence

Bullets and shell casings are measured and examined for striation marks transferred from a gun barrel or for other impressions. Marks are compared to data collected from crime scenes or test firings. Marks or "striations" on bullets are not necessarily unique to a specific firearm, and visually matching them can be subjective. One case study Detroit Police Department closed its police crime lab in 2008 after errors were found in 10 percent of 200 criminal cases, prompting several re-trials.

Bullet Lead Composition

A bullet is analyzed to determine the ratio of lead or other chemicals it contains. Information is traced to a manufacturer, point of production, distribution or sale. Tracing a bullet back to a specific box of ammunition is unreliable based on manufacturers' variations in packaging and frequency and range of distribution. The FBI abandoned bullet lead analysis in 2005 after the National Academy of Sciences called its work "unreliable and potentially misleading" and claims of linking a bullet to ones found in a suspect's gun or cartridge box misleading under federal rules of evidence.

Hair And Fiber

Hair sample characteristics such as color, shaft thickness and length are compared to hairs from a known source. Fibers from clothing, carpet, rope, etc., are analyzed to determine type of material and environmental exposure. Hair and fiber cannot be identified to one source. Hair comparisons must be confirmed by mitochondrial DNA analysis. After one case study in Santa Clara County, California, the district attorney replaced his crime lab chief after a murder case was dropped in 2007 and a wrongful armed robbery conviction was overturned in 2003 because of errors by a laboratory fiber expert.

Pattern And Impression

Characteristics of a tire impression are compared to the actual tire suspected of leaving the track. Bite marks are compared to dental casts of a suspected individual. The method can also be used to exclude people of interest. Visually matching impressions to sources can be subjective and varies between examiners. Skin may not accurately or consistently register bites. The North Carolina State Bureau of Investigation eliminated its bloodstain pattern analysis unit in 2011 after an examiner was videotaped celebrating after reproducing a result sought by a prosecutor.

Veil Of Secrecy

A review of the task force documents, as well as Post interviews, found that the Justice Department struggled to balance its roles as a law enforcer defending convictions, a minister of justice protecting the innocent, and a patron and practitioner of forensic science. By excluding defense lawyers from the process and leaving it to prosecutors to decide case by case what to disclose, authorities waded into a legal and ethical morass that left some prisoners locked away for years longer than necessary.

By adopting a secret process that limited accountability, documents show, the task force left the scope and nature of scientific problems unreported, obscuring issues from further study and permitting similar breakdowns. “The government has hidden behind the veil of secrecy to shield these abuses despite official assurances that justice would be done,” said David Colapinto, general counsel of the National Whistleblowers Center.

A common theme among reform-minded lawyers and experts is taking the oversight of the forensic labs away from police and prosecutors. “It’s human to make mistakes,” said Steven D. Benjamin, president-elect of the National Association of Criminal Defense Lawyers. “It’s wrong not to learn from them.” More specifically, the D.C. Public Defender Service, Benjamin’s group and others said justice would be served by retesting hair evidence in convictions nationwide from 1996 and earlier.

“If microscopic hair analysis was a key piece of evidence in a conviction, and it was one of only a limited amount of evidence in a case, would it be worthwhile to retest that using mitochondrial DNA? I would say absolutely,” said Adams, the former FBI lab director. The FBI and the Justice Department also declined to say why the review should be limited to D.C. cases. The Post found that 95 percent of the troubled cases identified by the task force were outside the District.

Former FBI Agent Whose Tainted Work Started FBI Lab Scandal

The FBI's Hair and Fiber expert, Michael P. Malone would peer into his twin-eyepiece microscope and come up with the evidence that helped send somebody to prison or death row. A big, burly guy with tenacity and charm, driven by an overwhelming desire to succeed, seemed to fit the Hollywood image of straight-shooting G-man. He won fame in the glassed-in laboratories of Washington's J. Edgar Hoover Building, where hundreds of agents, scientists and technicians test everything from paint chips to blood and handwriting.

The tool of the trade was a microscope. Comparing strands of hair from known and unknown samples, Malone would study similarities and differences in length, color and texture. By examining a hair, he says, he learned to tell a person's race, the area of the body the hair came from and whether it fell out or was pulled.

Malone quickly became a star. He grabbed headlines for his work in the "Fatal Vision" appeals of Jeffrey MacDonald, the Green Beret Army surgeon convicted of murdering his wife and children at Fort Bragg, N.C. He won praise for helping with the case against John Hinckley, who shot President Ronald Reagan. And Hillsborough County sheriff's deputies credited him with finding the key evidence, tiny strands of fiber, that put away Bobby Joe Long, a Tampa Bay area serial killer who tied up his victims before raping and strangling them.

The more famous Malone got, the more eager police and prosecutors around the country became for his testimony. And in time, with all the glory Malone achieved, came whispers, whispers that turned to murmurs and then a steady buzz. Mike Malone was sloppy. He was a government shill. He stretched the truth, maybe even made things up. Defense lawyers, once seemingly awestruck by his testimony, began to challenge it. In 1987 and again in 1988, the Florida Supreme Court threw out murder convictions that hinged on his hair testimony.

In 1989, William Tobin, the FBI's chief metals expert, accused Malone of intentionally giving false testimony in a case. It wasn't just any case, either. A judicial panel was deciding whether to recommend the impeachment of then-federal Judge Alcee Hastings of South Florida. When then-Inspector General Michael Bromwich released his 517-page report in April 1997, he hammered Malone for "testifying falsely." Bromwich recommended that Malone be disciplined, but the "false testimony" allegation ultimately went nowhere.

The FBI defended him, saying he might have been misleading but "was not intentionally deceptive."

Malone actually stated in a 2001 St Petersburg FL interview that he doesn't lose sleep over defendants who may have been hurt by his testimony. If anything, he portrays himself as a victim of new technology and changing forensic standards. If DNA testing can right any wrong hair calls he made, that's good, he says. Malone denies he favored prosecutors. He ticks off cases where he helped clear the wrong suspect or testified for the defense. Occasionally, he says, "cranked-up" prosecutors tried to get him to embellish testimony, but "we always stuck to our guns."

End Of Story...

Jack Swint-Publisher
West Virginia News
E-Mail:  WestVirginiaNews@gmail.com
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