Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

Back in 1993, world renowned FBI scientist Dr. Frederic Whitehurst (pictured right) brought to light astonishing deficiencies and scientific fraud at the FBI Crime Lab. These allegations would lead to a massive reform of forensic science at the FBI. The FBI labs were just the beginning, and since that time, Dr. Whitehurst, as director of the National Whistleblowers Center's Forensic Justice Project, has been a vocal advocate for reforms nationwide. In 2007, his work was highlighted in a 60 Minutes/Washington Post Special Investigation, and Congress took action to force the review of the cases of thousands of criminal defendants who had been convicted on potentially tainted bullet-lead evidence.

A new study by the National Academy of Sciences has put forensic science and crime laboratories back in the news, and not in a good way. The two-year congressionally funded report, issued February 18th, details the need for reform in our nation's forensic science programs. Specifically, it calls for an independent oversight organization called the National Institute of Forensic Science. Among other deficiencies, the report finds:

• hundreds of thousands of backlogged an delayed requests for analysis
• understaffing at 80% of the nation's crime labs.
• a lack of certification and accreditation standards leading to inconsistencies between federal, state, local governments.
• hundreds of convictions have been based on flawed science

These findings are extremely troubling, and we are happy that Congress took the initiative to fund this study. Now the New York Times is reporting that the Senate Judiciary Committee is planning to hold hearings on this report, and we believe that there would be no one better to testify on these issues than Dr. Whitehurst.

 

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Today's Washington Post has an update on the FBI Bullet-Lead debacle. Lee Wayne Hunt , a North Carolina man who has maintained his innocence since being convicted of murder in 1986, is appealing his case to the North Carolina Supreme Court. 

This is not Mr. Hunt's first appeal, but this time he is doing so with the help of information obtained by the National Whistleblower Center's Forensic Justice Project. The FJP's lawsuits against the FBI produced a wealth of documents detailing how thousands of cases, including Mr. Hunt's, were prosecuted on the basis of a faulty forensic science known as bullet-lead analysis.

Dr. Frederic Whitehurst, a former FBI Special Agent and forensic expert, is the Executive Director of the FJP.

• Click here to see the website devoted to the Washington Post / 60 Minutes investigation on Bullet-Lead.
  
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Yesterday, John Solomon of the Washington Post reported that the Senate Judiciary Committee is requiring that the FBI turn over records related to all criminal cases in which bullet-lead analysis was presented as evidence. There are over 2,500 such cases nationwide.

Dr. Frederic Whitehurst, the Executive Director of the Forensic Justice Project (a project of the National Whistleblower Center) has filed three lawsuits against the FBI since 1996 in an effort to obtain release of these records. Unfortunately, the FBI has never been fully compliant with the FJPs FOIA requests, and has engaged in extensive feet-dragging and stonewalling, even so far as demanding that the FJP pay over $70,000 for access to these public records.  

The Senate's action is in response to years of work by the FJP, which led to a joint investigation by the Washington Post and 60 Minutes.

 

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On November 18, 2007, the results of an investigation into the operations of the FBI crime lab were printed in the Washington Post and broadcast on CBS News 60 Minutes. The Forensic Justice Project (“FJP”), a project of the National Whistleblower Center, in Washington, D.C., and FJP Executive Director Dr. Frederic Whitehurst, cooperated with the joint Post-60 Minutes investigation by providing records released by the FBI to FJP and Dr. Whitehurst under the Freedom of Information Act (“FOIA”). These FBI FOIA records document the serious misconduct and other problems reported in the joint Post-60 Minutes investigation.

By way of background, since 1996 it has taken no fewer than three separate lawsuits filed on behalf of either Dr. Frederic Whitehurst or the Forensic Justice Project (or both) under the Freedom of Information Act to obtain records regarding FBI Laboratory scandals. In each and every case, the FBI has delayed and stonewalled the release of records documenting misconduct in the FBI Lab, including the problems identified in the Washington Post-60 Minutes investigation.

The FOIA cases are:

1. Whitehurst v. FBI, Civil Action No. 96-572 (GK) (D.D.C.):

This was the original case filed on behalf of Dr. Whitehurst and it alleged that the FBI was refusing to process FOIA requests made on Dr. Whitehurst’s behalf in 1993 and 1995. These requests sought access to records about Dr. Whitehurst’s whistleblower allegations about serious problems in the FBI Lab, which also became the subject of a U.S. Department of Justice Office of Inspector General (“OIG”) review of the FBI Lab. Dr. Whitehurst’s lawsuit also alleged that records about Whitehurst and his allegations that were responsive to the FOIA requests were being selectively released by the FBI to criminal defendants, the courts, members of Congress, but were being denied to Dr. Whitehurst.

On February 5, 1997, Judge Gladys Kessler ordered the FBI to release all records responsive to these requests. See the order here

This lawsuit was later expanded to include Dr. Whitehurst’s FOIA requests for copies of the Justice Department’s OIG report and work product.

Ultimately, this lawsuit was settled and part of the settlement covered granting Dr. Whitehurst a fee waiver and access to thousands of pages of records on his whistleblower allegations and the FBI Lab scandal.

2. Forensic Justice Project v. FBI, Civil Action No. 04-1415 (PLF) (D.D.C.):

This FOIA case against the FBI was filed on behalf of the FJP in 2004 and requested access to records of various FBI Lab examiners who had testified in criminal cases regarding bullet lead. The case against the FBI was settled in March 2006, with the FBI agreeing to grant a fee waiver and provide the FJP with the names of defendants and case numbers of cases in which these examiners testified.

This FOIA case also was filed by the FJP against the DOJ for the records of DOJ Criminal Division Brady Task Force review of the FBI Lab scandal and Dr. Whitehurst’s whistleblower allegations. The FOIA case against DOJ on the Brady Task Force records was settled on December 9, 2005, with the DOJ agreeing to grant a fee waiver to FJP and produce on a rolling basis records from the Brady Task Force review.

The FJP provided all of these records to the Washington Post and these FBI records on bullet lead provided important leads for the Washington Post-60 Minutes investigation.

3. Forensic Justice Project and Whitehurst v. FBI and DOJ, Civil Action No. 06-1001 (RWR) (D.D.C.):

This FOIA action was filed in 2006 and is currently pending. See the Complaint 

The FOIA request was filed with the FBI in September 2005 seeking copies of all records related to the comparative bullet lead cases and records related to the decision to stop using comparative bullet lead analysis that were referred to in a September 2, 2005 FBI press release. See the Original FOIA Request With FBI Press Release Attached

The FBI has refused to grant a fee waiver forcing the FJP and Dr. Whitehurst to appeal and then go to court. Reporter John Solomon of the Washington Post also wrote a letter informing the FBI and DOJ that he was interested in reviewing the records requested by FJP and Whitehurst. In February 2007 the FBI acknowledged that there exist approximately 250,000 records responsive to this request but the FBI demands that Dr. Whitehurst and the FJP pay approximately $70,000 to process this FOIA request.

The records responsive to this request are the actual case file records for all of the comparative bullet lead cases handled by the FBI Lab based on flawed science prior to the FBI’s decision to stop using comparative bullet lead analysis in criminal cases. In its September 2, 2005 Press Release, the FBI itself identified more than 500 cases where convictions were obtained using the scientifically flawed comparative bullet lead analysis. In addition, the FBI identified thousands of other criminal cases where comparative bullet lead analysis had been used prior to its discontinuance.

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The entry below is a special contribution from Dr. Frederic Whitehurst, the Executive Director of the Forensic Justice Project (a special project of the National Whistleblower Center)

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The justice system needs answers, and science never comes up with final answers. Science often discovers that previous answers to questions were not valid. When forensic science renders opinions in courts of law that are in the future found to be no longer valid, such as in the case of bullet-lead analysis, then we have no mechanisms to revisit the cases where people were unfairly accused. The FBI and the DOJ have for the past nine years strongly resisted efforts by the Forensic Justice Project to determine the names of those defendants who were treated unfairly as a result of bad forensic science.

One would assume that the reason for this lack of cooperation would be the perceived liability from discovery of falsely accused individuals who have spent years, possibly decades, incarcerated after being falsely accused by forensic science. Whatever the reason, Special Agents of the Federal Bureau of Investigation take an oath of office before receipt of their badges and credentials. That oath includes their willingness to enforce the law and uphold the US Constitution. That oath means that citizens become more important to FBI Agents than those agents are to themselves. It would seem that the US Department of Justice would agressively seek to protect the safety of all citizens, regardless of the source of any harm coming to those citizens. And therefore when the FBI Crime Laboratory makes mistakes and those mistakes harm US citizens, the FBI and the US DOJ should aggressively pursue making those citizens aware that they have been tried unfairly and offer any assistance necessary to make those citizens whole. The last thing the US DOJ should do is what has been done, to aggressively stop parties from discovery of those citizens harmed. It is obvious that the US DOJ does not have the assets or moral fiber needed to function fairly in this way. Therefore private citizen groups need to acquire the information from investigative files and make that information available and assist individuals who have been harmed by bad forensic science from the FBI Lab or any other crime lab.

Following revelations in 1997 of wrong doing and invalid science at the FBI Crime Lab, the Forensic Justice Project set about determining those individuals who had been harmed. With the mantra, "Stop It, Fix It, and Find Out Who Was Harmed" the Forensic Justice Project acquired a vast amount of information to determine the real reasons for the perceived problems. FJP makes that information available to parties all over the world, looking only for feedback of information from the recipients. The model built has been one of acquiring transcripts, data, lab reports and other information in order to determine the real issues associated with "bad" forensic science. Going beyond the simple "He said, She said" arguments that get nowhere, FJP has acquired the underlying data for open review. The team built around any issue involves criminal defense attorneys (who provide transcripts of testimony and laboratory work product), aggressive Freedom of Information inquiries, scientists who have been willing to provide a great deal of research resulting in papers written in the scientific literature, and victim defendants who are more than willing to share all of their data.

The project works on a shoe-string budget with individual participants conducting their individual parts on a pro-bono basis.

Dr. Frederic Whitehurst
Executive Director
Forensic Justice Project

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The Washington Post-60 Minutes investigation, published in today's Washington Post, has confirmed that the convictions of hundreds of defendants have come into question because a bullet-lead analysis used for 40 years has been discredited and the FBI has failed for more than 2 years to properly notify those convicted about these problems. Read The Article 

Later tonight, after the 60 Minutes special begins, you can visit this blog for further information on the bullet-lead issue. We will have original documents from the FOIA lawsuit, as well as blog posts from former FBI Crime Lab whistleblower (and Executive Director of the Forensic Justice Project) Dr. Frederic Whitehurst and the General Counsel for the National Whistleblower Center, David Colapinto.

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This Sunday, The Washington Post and 60 Minutes will be breaking a major story detailing appalling injustices committed by the FBI. This story has been over 10 years in the making, and is the direct product of work done by the National Whistleblower Center. We urge you to read Sunday’s Post and watch 60 Minutes on Sunday night for more details.

Then, after the show …

Come back to this blog where Dr. Frederic Whitehurst, the original FBI whistleblower whose shocking disclosures were the impetus for many of the so-called “reforms” in the FBI Crime Lab, will be posting his thoughts on the current scandal. Dr. Whitehurst is now the Executive Director of the Forensic Justice Project.

Also blogging will be David Colapinto, the General Counsel of the National Whistleblower Center. Dave has been representing whistleblowers (including Dr. Whitehurst) for over 20 years.

Stay Tuned!

Click here to see 60 Minutes’ article about the upcoming show

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