FBI to review thousands of old cases for flawed evidence

By Isolde Raftery, msnbc.com

July 12, 2012

See link for video: http://usnews.nbcnews.com/_news/2012/07/12/12708918-fbi-to-review-thousands-of-old-cases-for-flawed-evidence

Frederick Whitehurst in an undated photo

www.whistleblowersblog.org

Months after the Washington Post revealed that lab technicians at the FBI possibly exaggerated evidence, resulting in at least three wrongful convictions, the Department of Justice has announced it will review thousands of old cases.

The review, the largest in U.S. history, will focus on work by FBI Laboratory hair and fiber examiners since at least 1985, the Post reported.

In April, the Post wrote about two men who were convicted largely because of contaminated FBI hair analysis. A review of the evidence has since resulted in the release of both men.

A reporter at the Post had been working on a story about Donald Gates, a D.C. man released after DNA evidence proved his innocence, when he learned about Frederic Whitehurst, an FBI lab chemist who blew the whistle on the FBI Laboratory in the mid-1990s. Whitehurst said he watched colleagues contaminate evidence and, in court, overstate the significance of their matches.

“There was a lackadaisical attitude,” Whitehurst said.

When Whitehurst, a chemist with a doctoral degree from Duke, arrived at the FBI crime lab in 1986, the first thing he noticed was that the place was, as he called it, a pigsty. The equipment was outdated and there was a film of black soot coating the counters – a dust from the vents that the agents called “black rain.”

It surprised him, too, he said, that outsiders were allowed to tour the lab, which he said should have been a controlled environment.

When he raised these issues, a coworker told him, “Before you embarrass the FBI in a court of law, you’ll perjure yourself. We all do it.”

After the first World Trade Center bombing, Whitehurst testified that supervisors pressured him to concoct misleading scientific reports. When he refused to testify that a urea nitrate bomb had been the source of the explosion, the FBI found another lab technician to testify.

Over the years, Whitehurst said, he brought in almost-new equipment that had been turned over by the National Institutes of Health. He implemented protocols, because there hadn’t been any when he arrived.

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But other problems arose, Whitehurst told msnbc.com. He learned that an agent had, for the previous nine years, rewritten his scientific reports to support the prosecution. When he complained, he said he was told the agent hadn’t done anything wrong.

“You get patted on the head if you’re the guy who saves the case,” Whitehurst said, explaining why agents would provide misleading information. “They get promoted; they’re the guys everyone crowds around. It’s a very tight family. A scientist who asks a question and doesn’t go along, he gets isolated.”

Corrupt lab technicians remained employed even after Whitehurst started speaking out about the lab, said David Colapinto, general counsel for the National Whistleblowers Center.

In 1995, Whitehurst told Larry King on CNN, “I dislike being called a whistleblower, I’m a law enforcement officer and if I see violations of the law abuses of authority corruption. I’m required to report those.”

As an agent, Whitehurst wrote 237 letters to the Inspector General, complaining about the lab. The longest was 640 pages.

“The pressure was so crazy that every so often, I’d just break down and cry,” he said.

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The Justice Department ultimately did review thousands of cases in response to Whitehurst’s reports, Colapinto said, but he said the task force assigned to investigate operated in secret and the findings were not published. Rather, Colapinto said, prosecutors who had originally tried those old cases decided whether the new evidence should be disclosed to the defense.

Dissatisfied with the Justice Department’s review, Whitehurst requested the task force’s findings through the Freedom of Information Act. Over several years, he received tens of thousands of pages.

Some changes were made, however. The FBI moved its lab from the FBI’s J. Edgar Hoover building in Washington, D.C. to a separate building in Quantico, Va.

The National Academy of Sciences recently pushed for further independence, however. The organization, made up of elite scientists from around the U.S., recommended the creation of an independent federal agency to review evidence. That agency, ideally, should not be connected to the academic community, the scientists said.

Whitehurst, now a forensic consultant and a criminal defense lawyer in North Carolina, and the National Whistleblowers Center worked with the Post for a year on the expose that came out in April. That story apparently pushed the Justice Department to conduct another, more transparent review of old evidence.

The Justice Department says that this time, the review will include outsiders such as the Innocence Project, according to The Associated Press. The Innocence Project, which focuses on exonerating the wrongfully convicted, would watch over the government’s review.

The FBI did not respond to request for comment.