National Whistleblower Day
Dr. Frederic Whitehurst

July 30, 2014 – Another front-page story about the FBI Lab Scandal appeared in the Washington Post today.  In this story, we learned that the FBI unilaterally stopped reviewing thousands of criminal cases to determine if tainted forensic evidence was used to obtain convictions simply because the FBI did not like the results of the review.  It turned out that “nearly every case” the FBI reviewed included flawed evidence or testimony from the FBI Lab.  So the FBI stopped looking at the cases in August of 2013.

It didn’t matter that the review was pointing to possibly thousands of tainted convictions and that some of those included death penalty cases.  The FBI stopped looking after it determined that its review might cast serious doubt on nearly all of the convictions that relied on FBI Lab hair analyses.  Apparently that was too much for the FBI stomach so they stopped the review and sought to change the rules governing the review last August.

According to today’s front page Washington Post article, the FBI did not get approval from the Justice Department to change the way it would review these cases.  The Post quotes a Justice Department official as saying, “The Department of Justice never signed off on the FBI’s decision to change the way they reviewed the hair analysis.”

To keep this in context, this particular review was required because the FBI and Justice Department had previously promised in 1996 to conduct reviews of cases impacted by the FBI Lab scandal.  That’s right.  The Attorney General and the FBI Director both promised in 1996 that they would get to the bottom of who was hurt by tainted forensic evidence from the FBI Lab.  After it was shown in a series of articles that the reviewed ordered in 1996 was seriously flawed, the FBI and DOJ agreed in 2012 to undergo the current hair analysis review.

This leads us to four questions about the FBI Lab Scandal. 

Question #1:  What does the FBI Lab scandal have to do with National Whistleblower Appreciation Day?

July 30th was declared “National Whistleblower Appreciation Day” by the U.S. Senate in a unanimous resolution last year.  And, of course, there was a whistleblower at the FBI Lab whose revelations in the 1990’s set off the series of events known as the FBI Lab scandal and the subsequent reviews and cover-ups by the Justice Department.

Not only did Dr. Frederic Whitehurst blow the whistle on serious misconduct and flawed evidence while he worked at the FBI Lab in the 1990’s, he continued to hold the FBI and Justice Department accountable by obtaining under the Freedom of Information Act documents from the DOJ’s flawed review of the FBI Lab scandal.  It was Dr. Whitehurst’s FOIA documents and persistence that eventually led to the Washington Post series in April of 2012.

So it is fitting that the latest Washington Post article on the FBI Lab scandal was published on July 30th, National Whistleblower Appreciation Day.

Question #2:  Who covered up the FBI Lab scandal during the 1996 Justice Department review?

It remains to be answered who was responsible for closing down the DOJ task force review that was started in 1996 without ensuring that defendants whose cases were tainted were notified and without issuing a final report.  It is now known through FOIA documents and media reports that the Justice Department knew the scope of this scandal at the FBI Lab was much wider, but they closed their eyes to the problems.  The Justice Department was informed and knew there was more than “one bad apple” committing forensic fraud.  The Justice Department knew that death penalty cases were implicated by the wrongdoing and yet the DOJ closed their eyes to the problems – letting 16 people (to date) be executed without a review of the tainted evidence in those cases.  Additionally, the Justice Department knew during the 1996-2004 review that there were thousands of cases implicated, and scientific reviews confirmed problems in more than 400 cases, but the defendants and the defense attorneys in most of those cases were not properly notified.  Despite knowing all of that the Justice Department secretly shut down the task force review and never issued a final report.

Somebody in the Justice Department was responsible for shutting down the task force and closing the Department’s eyes to what now appears to be evidence of “massive” forensic fraud.  Who did ordered this cover up?  Where are they now?

The American people deserve answers to these questions and the Department of Justice must be held accountable for closing its eyes to these problems and breaking its constitutional duty to conduct these reviews in a timely manner.

Question #3:  Who is responsible for halting the hair analysis review in 2013?

In response to the April 2012 Washington Post series the Justice Department and FBI publicly announced that they would be conducting “a thorough and meaningful” review of more than 20,000 FBI Lab hair analysis cases to determine if there was tainted evidence used to obtain convictions.  However, there was no public announcement by the FBI or Justice Department that they had abruptly halted this review in August of 2013 because the FBI did not like the results of that review.

If the history of the FBI Lab scandal were not bad enough, who authorized the FBI to stop reviewing hair analysis cases that might be tainted?  Why has this nearly one year delay in that review been kept secret from the public?

Question #4:  Will there ever be any meaningful oversight of this scandal to hold those accountable for the massive miscarriage of justice committed by the FBI Lab and the subsequent 18-year cover up of these problems?

It is no longer appropriate to use the words “flawed,” “mistake,” ”neglect” or “failure” to describe what has happened in the FBI Lab scandal.  Twenty years of sticking heads in the sand to ignore problems, and halting reviews mid-stream once it is realized the problems are worse than expected, are not flaws or failures to provide notice.  It is a cover-up.

The FBI and Department of Justice have a constitutional duty to make disclosures to defendants of information that could be exculpatory (i.e., evidence that exonerates or tends to exonerate the defendant of guilt.).  This constitutional duty has been avoided for nearly 20 years, through FBI delays and Justice Department gimmicks to ignore and minimize the true scope of the FBI Lab scandal.  For years after the FBI Lab scandal the FBI made a point of saying that no criminal convictions were overturned as a result of the Justice Department’s 1996 task force review.  They can no longer say that.  It has been proven that 6 people in the District of Columbia, alone, were wrongfully convicted.  And there are many more waiting who have been waiting more than 20 years to have their convictions based on tainted evidence reviewed.

This is not a public relations game where the FBI can find ways to sweep damaging information under the rug.  The due process rights of thousands of persons – many of whom may have been wrongfully convicted – have been violated.

Who is going to take responsibility for the FBI Lab scandal and hold officials who condoned this twenty-year cover up of justice?

For our prior posts on this issue please click here.