Justice Delayed? Justice Cancelled?

By William Fisher

The time is late Autumn 2006. A middle-aged African American inmate sits in the jail cell in Arizona he has occupied for 24 years.

He has little reason to hope he’ll ever see the outside of this prison again – except for one possibly monumental new development – the perfection of a new approach to DNA testing that was not available at the time of his conviction.

He has requested the DNA tests and has heard rumors that such advanced testing is being done in his case – but he’s heard all the jailhouse rumors before and tends to minimize their value.

According to the Innocence Project, On June 22, 1981, Catherine Schilling, a 21-year-old Georgetown University student, was found raped and murdered in Rock Creek Park in Washington, D.C. She was nude and had been shot five times in the head.

The Project reports that on July 20, 1981, Gates, 30, “was arrested for failing to appear in court on an unrelated case. Gates, who had been arrested six times for robbery and assault between 1980 and 1981, gave up a hair sample as part of a processing procedure.”

It’s what was done and said about hair samples and other forensics in the years ahead that would reveal enough lying and corruption to blow the lid off the so-called state of the art FBI Laboratory and force it to forfeit its reputation as the gold standard among forensic crime labs.

The Innocence Project reports that Gates was charged with the rape and murder after a police informant, Gerald Mack Smith, claimed that he and Gates were drinking in the park when Gates said he wanted to rob the victim, but when she resisted, he killed her.”

The Project added, “Smith later picked out Gates’ photo. He was paid $50 for the initial tip and $250 for picking out the photograph. In all, Smith would be paid $1,300 for his help on the case.”

Trial records and memoranda to this reporter from trial observers at Gates’ trial in 1982, reveal that key testimony came from FBI forensic analyst Michael Malone who said that Gates’ pubic hairs were “microscopically indistinguishable” from hairs found on the victim’s body.

On September 16, 1982, Gates was convicted. He was sentenced to 20 years to life in prison.

In 1997, a scathing internal review of the FBI laboratory was conducted by the DOJ Inspector General, who found that Malone and other analysts made false reports on cases across the country and performed inaccurate laboratory tests.

In January 2002, the U.S. Justice Department sent a letter to prosecutors in the case, informing them that Malone’s lab report was not supported by his notes and advising them to determine whether the defense should be notified. The defense was not notified.

In 2007, Gates sought DNA testing again. Two years later, the request was granted and the tests, conducted on a sample of biological evidence found at the District of Columbia medical examiner’s office, eliminated him as the killer and rapist.

So a grievous miscarriage of justice was arguably corrected, albeit far too late. Nonetheless, it was a bittersweet moment for Gates, who was released on December 15, 2009 – after 27 years in prison.

On December 18, 2009, the charges were dismissed. Gates was given $75 and a bus ticket to Ohio.

But the joy for the system was short-lived. The reason is that hundreds, perhaps thousands, of people had possibly been unlawfully tried and sentenced partly based on the junk science that applies to all forensics, with the exception of DNA. In Gates’s case, the analysis of his single hair was the only physical evidence introduced in court, and thus probably heavily responsible for his conviction.

In the many other trials that took place across the country before, during and after the Gates case, the approach to forensics had not changed. Forensic “scientists” were still intent on stretching a flimsy spandex shield over a mountain of unscientific interpretation.

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.

Whitehurst adds, “The (then) Inspector General, Michael Bromwich, has publicly spoken in anger that nothing was done beyond the IG report about Malone. There are potentially thousands and thousands of victims of this subjective practice.”

However, the DOJ put together a Task Force, presumably to follow up on the IG investigation into the FBI Lab practices and to investigate and identify the other inmates convicted based on inaccurate forensic evidence. That Task Force convened for eight years (between 1996-2004) and the consensus among knowledgeable observers is that is achieved zero.

The Task Force first said it would fully examine all the cases that might have been infected by false evidence. Then they came up with about 250 cases, and announced they would only do paper reviews of the cases, not going back to examining evidence. They sent these paper assessments to the prosecutors of the respective cases, leaving it at the prosecutors’ discretion as to whether to share the information with defense counsel.

As Gates’s lawyers were never notified, hundreds of other defense lawyers were passed over as well.

The Task Force also consistently ignored instructions from presiding judges to send their reports up the food chain to their superiors.

Now Sandra Levick is writing to the D.C. judges requesting the assignment of a judge to sit for whatever remaining cases there are. She wrote:

“The investigation that the United States has thus far conducted (at least insofar as is known to undersigned counsel) has not been adequate to the task. It has been too narrow in scope, too one-sided in execution, and the results have been too slow in coming. Moreover, as more fully set forth in our letter of April 14, 2010 - to which the government has never responded – the investigation and its initial results lack transparency and an opportunity for meaningful adversarial or judicial oversight.”

“First, the government's investigation remains incomplete even by its own narrow terms. The United States reported on March 12, 2010, that there were "more than one hundred additional names.”

“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.

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.

The FBI laboratory has once again assumed a position of credibility, largely based on DNA, the only scientific tool anywhere in the forensics lab. It is now located in a state-of-the art complex at Quantico Virginia.

But for those who pay attention when our government fails, the thousands of unlawfully convicted prisoners remain as a grim legacy caused by lies and corruption and faux science that will haunt the lab forever.

Steven Aftergood, editor of the Government Secrecy Report for the Federation of American Scientists, summed up the situation this way:

"It’s an astonishing, scandalous story. What we have is a systemic failure. It’s not just the FBI lab itself that failed, which it did, egregiously. So did the Justice Department, by withholding its knowledge of the matter from those who could have acted on it. So did congressional oversight, and so did the courts, by failing to demand and deliver accountability. The price was paid by those who were wrongfully convicted."

He added: "I would like to see some congressional involvement in charting a path forward, which should include providing remedies for past errors and developing new mechanisms for preventing future errors."