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.
For more than a decade the FBI and the Justice Department have been sitting on records relating to serious misconduct on the part of FBI Lab examiners in scores of criminal cases.
Both the FBI and DOJ have dragged their feet in responding to FOIA requests forcing Dr. Whitehurst and the FJP to file three separate FOIA suits in federal court to get access to records about the government’s misconduct.
All of these records, should have been made public long ago. It should not have taken three FOIA suits to force the release of some of the records while the FBI continues to stall and prevent release of the FBI Lab’s case files where it misused scientifically flawed comparative bullet lead analysis in thousands of criminal cases.
Even worse is the secret process by which the DOJ reviewed Dr. Whitehurst’s whistleblower allegations about the FBI Lab’s serious misconduct.
It is only now, as more information comes to light as a result of these FOIA suits, that portions of the FBI’s misconduct in these are matters are being pieced together thanks to the investigative efforts and determination of the Washington Post, 60 Minutes, attorneys and groups like the Innocence Project and the Forensic Justice Project, and scientists like Bill Tobin and Dr. Frederic Whitehurst.
The FBI and DOJ should have disclosed all of this information to the courts as well as criminal defendants and their attorneys years ago. Instead, the DOJ and the FBI deliberately chose to operate in the dark, out of public view, and conceal the evidence that is scientifically flawed but which was still used in criminal cases. This has severely prejudiced people who have been hurt by the FBI Lab’s misconduct.
By stonewalling and delaying the release of this information, the FBI and DOJ have ensured that wrongfully convicted citizens are deprived of their right to appeal or seek post-conviction relief because the statute of limitations in many states have already likely expired.
David K. Colapinto
General Counsel
National Whistleblower Center
Last month we reported on a key Whistleblower/Civil Rights tax case that was filed with the Supreme Court by attorneys working with the National Whistleblower Center. See Whistleblowers Blog (December 13, 2007). The case is Murphy v. IRS, No. 07-802 (Supreme Court), and the principal issue is whether the IRS can tax as income plaintiffs' court awards for non-physical compensatory damages, such as make whole awards for emotional distress and loss of reputation. 