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

In December 2009, Donald Gates, an innocent man, who spent 28 years in jail after being convicted for crimes he did not commit, was set free by D.C. Superior Court after DNA testing confirmed that forensic testimony presented in court by FBI analyst Michael Malone was false. On the basis of Malone’s fabricated tests and false testimony Gates was wrongfully convicted of rape and murder.

Gates’ case was on a list of cases ordered to be reviewed following the DOJ IG’s report verifying Whitehurst’s whistleblower allegations. Notably, Whitehurst specifically blew the whistle on Michael Malone, who the IG confirmed deliberately lied and falsified evidence in the judicial inquiry brought against Alcee Hastings (then a sitting federal judge and now a member of Congress). As a result of verifying that Malone lied in the Hastings case, the DOJ decided to conduct a review of all of Malone’s cases.

However, Gates’ case was not properly reviewed by DOJ and he continued to sit in jail until December 2009 when new DNA testing confirmed that he could not have committed the crime for which he had been convicted.

This is another reason why FBI whistleblower protections should not be weakened as proposed by the Senate in S. 372 and reported last week in Politico.

But for Whitehurst blowing the whistle on Malone, the FBI lab analyst who lied in this case, Gates’ case never would have been reviewed and he likely would still be in jail. When efforts were made by Gates’ attorneys in 2008 to seek new DNA testing they were able to persuade the judge to order that test because the IG had verified Whitehurst’s allegations against Malone in the 1997 IG report. Had Whitehurst not come forward nobody would ever have looked at Gates’ case or anyone else’s case handled by the FBI crime lab. Gates would still be sitting in jail even though he is an innocent man.

By weakening FBI whistleblower protections to permit the FBI to investigate and adjudicate whistleblower retaliation claims by its own employees and agents, the Senate is ensuring that nobody will blow the whistle on misconduct at the FBI. If you want to know the consequences of that, go ask Donald Gates.

Please TAKE ACTION and tell the Senate to fix the repeal of existing FBI whistleblower protections.

Mr. Gates' case was covered by the Washington Post, and the Post has run 2 editorials (12/18/2009 and 12/27/2009) calling for further investigation as to how the government could hold a man wrongfully convicted after it was reported that Malone's findings in other cases were questioned as a result of the DOJ's review of the FBI Lab scandal in the 1990's.

Not reported in the Washington Post or other media coverage of the Gates case, is the role of Dr. Frederic Whitehurst in uncovering the misconduct of Malone. In the mid-1990s, Dr. Whitehurst blew the whistle on Malone for lying under oath to help remove Judge Alcee Hastings from the federal bench. In 1997, the U.S. Department of Justice Inspector General confirmed Dr. Whitehurst's allegations that Malone lied under oath and the IG raised questions about the work of a dozen other FBI lab examiners who Whitehurst also reported to the IG for misconduct.

However, the Justice Department failed to take prompt or effective corrective action in the aftermath of the Whitehurst investigation on the FBI Lab scandal. In fact, under records released to the National Whistleblowers Center, the Forensic Justice Project and Dr. Whitehurst under the Freedom of Information Act (FOIA), it is evident that the DOJ Criminal Division reviewed the Whitehurst allegations to minimize disclosure of allegations misconduct to the courts and criminal defendants. Instead, the DOJ relied on the state, local and federal prosecutors as well as the FBI Lab to make key decisions about whether misconduct occurred in thousands of criminal prosecutions where the FBI Lab's evidence and testimony was questioned. In most cases, the defendants who were convicted and the courts where misconduct by the FBI may have occurred were never notified.

In 2002, the Justice Department closed its review of 6,000 cases impacted by Whitehurst's allegations without issuing a final report, without notifying the defendants whose cases were reviewed and without reporting on the work that DOJ had conducted in secret.

In Mr. Gates' case the DOJ apparently was aware as early as the year 2000 that Gates' case was impacted by Whitehurst's allegations about Malone, but according to the Washington Post the government never notified Mr. Gates or his attorney or the court that there was any problem with the evidence used to convict Mr. Gates.

However, this problem is not limited to cases in Washington, D.C. Malone and the other FBI lab examiners who were subject of the IG review in the 1990's testified in nearly 6,000 cases nationwide.

A nationwide effort must be undertaken to disclose all of the cases to the public and the defendants and to permit the criminal justice system, not prosecutors or the FBI, to decide whether there are any more wrongfully convicted (or even wrongfully executed) individuals who have been victimized by the FBI Lab scandal.

Other stories have appeared in the Jacksonville Observer, Associated Press, National Public Radio, and Cleveland's WJW. Stay tuned for future updates on this issue.