But IG Recommendations Fall Far Short

Twenty. Years. Yesterday, July 16, 2014, the Justice Department Office of the Inspector General (OIG) released its third report of Federal Bureau of Investigation (FBI) Lab misconduct first alleged twenty years ago – in 1994 – by Dr. Frederic Whitehurst.

Washington Post Investigative Reporter Spencer S. Hsu, in his coverage of this latest report, summed it up by saying, “Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.”

To review the timeline:

In 1994 Fred Whitehurst first made his whistleblower allegations of shoddy science and manipulated evidence during court proceedings in the first World Trade bombing case and later to the Justice Dept. Inspector General.

In 1996, the Department of Justice (DOJ) set up a Task Force to investigate Dr. Whitehurst’s claims in order to determine if anyone was wrongfully convicted. At the same time, the OIG conducted its own evaluation, and issued the “1997 OIG Report” that found problems with 13 FBI Lab examiners and suggested that all of the forensic work of the criticized examiners be reviewed by the DOJ Task Force. The ensuing DOJ Task Force review was done in secret, they never issued a final report, and the FBI and DOJ later claimed that no convictions were overturned as a result of their intensive reviews.

In 1998, the FBI and DOJ agreed to settle Dr. Whitehurst’s whistleblower retaliation claims and paid him a record-breaking settlement amount of $1.16 million. [CNN, “FBI whistle-blower leaves, gets $1.16 million” (Feb. 27, 1998).]  

In 2001, the St. Petersburg Times ran a multi-part series of articles examining how sloppy FBI Lab work might have compromised several murder cases in Florida and why “almost nothing came of” the DOJ Task Force review.  [Sydney P. Freedburg, “Review of Cases Went Nowhere,” St. Petersburg Times (March 5, 2001).] The St. Petersburg Times concluded in 2001 that the DOJ’s Task Force review itself was “flawed” because: (a) “defense lawyers, judges and watchdogs were usually shut out of the process;” (b) “Decisions were left to the same local prosecutors who had relied on questionable lab work to win convictions…” and who “had a self-interest in preserving their convictions;” (c) “Some prosecutors did an inadequate job of following up on possible forensic errors;” and (d) “When experts hired by [DOJ] found tainted evidence, local prosecutors sometimes sat on the information for months before disclosing it to defense attorneys.”

In the summer of 2001, the Senate Judiciary Committee held a hearing entitled, “Oversight: Restoring Confidence in the FBI.”  At that hearing, former DOJ Inspector General Michael Bromwich stated, “Dr. Whitehurst was the principal source of allegations for our FBI Lab investigation, and it is true that in retrospect I think we were perceived as being too critical of him rather than commending him sufficiently for the service he performed … I think that we were perceived as more critical of him and not sufficiently appreciative of the service he rendered by bringing his allegations forward. And there is no doubt that but for his persistence in bringing the allegations again and again and again over a long period of time within the FBI and finally to the IG’s office that the reforms that have subsequently been made in the FBI Lab would not have been made, and he deserves credit for that.”

 

In 2002, the DOJ Task Force wound down its operations and over the next year it ceased to exist.

In 2003, Fred Whitehurst (now a private citizen) and the National Whistleblower Center’s (NWC) Forensic Justice Project (FJP) submitted Freedom of Information Act (FOIA) requests to DOJ to obtain the work product of the DOJ task force review.  DOJ stonewalled those requests and forced him in to court.  In 2005 there was a settlement whereby the DOJ finally agreed to process the FOIA request.  It took another 6 years to actually obtain the documents.

In 2004, the NWC and FJP file a lawsuit against the FBI and DOJ to obtain access to the DOJ Task Force files.  Forensic Justice Project v. FBI, No. 1:04-cv-01415-PLF (D.D.C.).

On December 9, 2005, a settlement of the FOIA lawsuit is reached and approved whereby the DOJ agreed to release records from the DOJ Task Force review of the FBI Lab.  The DOJ dropped its demand that the plaintiff pay copying, search and processing fees (estimated to be more than $77,000) and the plaintiff dropped its demand for payment of attorneys fees and costs.

Between 2006 to 2011, documents trickled in from the DOJ and FBI in the form of tens of thousands of pages in hundreds of boxes. The NWC – FJP took the FOIA files to the Washington Post and over the next several months, Fred, an intern and I, and the Washington Post reporter Spencer Hsu and his staff, combed through these tens of thousands of pages of records to piece together the actions of the Task Force. We found in these DOJ and FBI documents several shortcomings, sloppy work, lack of follow up, inexplicable delays and an effort that minimized the problems.  We were able to document several cases in which defendants were not timely notified – or in most cases never notified – about significant problems with the forensic evidence in their cases.  More appallingly, the Task Force never really itemized the cases and failed to prioritize review of cases involving the death penalty.

In April of 2012, the Washington Post published a series of front page articles documenting the failures of the DOJ to timely notify defendants who may have been wrongfully convicted and also published a list of cases that were still awaiting review to determine if defendants were wrongfully convicted.  The Post also reported on the cases that had become known where defendants’ criminal convictions were overturned.

On July 16, 2014, the DOJ OIG issued its latest review of the FBI Lab scandal, “An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory.”  The Washing Post articles from 2012 apparently prompted a request for additional review by Congressman Frank Wolf of Virginia that culminated in yesterday’s OIG report.

Too late for some:

The OIG report is broad ranging, and scathing in its analysis.  While the OIG should be commended for its thoroughness, these critical inadequacies and failures of the DOJ Task Force review would be obvious to anyone who looked at the task force documents, as we and the Washington Post did several years ago leading up to the Post’s series of articles in 2012.  The OIG report further documents what the media has reported on for years, that “questionable cases have fallen into a bureaucratic black hole,” as the St. Petersburg Times reported in 2001.

It is now official:  the OIG has confirmed what everyone has suspected, that the DOJ and FBI failed to properly look into the impacted cases and failed to prioritize cases involving defendants on death row, many of whom have now died. It took the FBI nearly five years to identify the 64 defendants on death row whose cases involved one or more of the 13 criticized examiners, and it is questionable whether this is a complete list of the impacted death row cases.

For some defendants, that was too late.  According to Appendix G to the OIG Report, sixteen (16) defendants were executed after Dr. Whitehurst’s allegations were raised, and another eight (8) defendants died in prison while awaiting reviews of their cases – reviews that either never occurred or were never disclosed to these 24 defendants while they were alive.  During the last 18 years, while these 24 prisoners either died or were executed, the DOJ did little or nothing.

Michael Malone:

The latest OIG report issued yesterday singles out Michael Malone as the worst of the 13 criticized examiners and his many faulty analysis and testimony. The OIG lists Malone as testifying in half of the 64 cases where defendants received the death penalty, life or lesser sentences.

During the OIG investigation in 1996 Dr. Whitehurst asked a colleague for a copy of a memo written years earlier documenting Malone’s false testimony in the Judge Alcee Hastings judicial inquiry (which led to the impeachment of Judge Hastings).  Dr. Whitehurst then carried a copy of that memo to the OIG and gave it to an OIG investigator.  After receiving the Hastings/Malone memo, the 1997 OIG report “hammered Malone for ‘testifying falsely” and the OIG recommended that Malone be disciplined for giving “false testimony.”  [Sydney Freedberg, “Good Cop, Bad Cop,” St. Petersburg Times (March 4, 2001).]

In response to the OIG recommendation, the FBI defended Malone by claiming that while Malone may have been misleading he “was not intentionally deceptive.”  The DOJ itself refused to take action against Malone saying that the Hastings case was “too old” and the “mistakes” were “too small.”  The Department of Justice refused to take any disciplinary action against Malone or even give him a letter of censure.

Malone escaped punishment by retiring from the FBI in 1999 “with a full pension.” Although the Inspector General who wrote the 1997 OIG report was troubled by the DOJ’s failure to hold Malone accountable, Malone not only got away with no punishment, and collected his full pension, he was rewarded by the FBI with a new job following his retirement.

The July 2014 OIG report shows that the FBI rehired Malone as a contractor for the FBI from 2002 until June 17, 2014.

Many questions remain as to who in the FBI and Justice Department allowed Michael Malone to be rehired as an FBI contractor for 12 years in light of the documentation that he committed misconduct and caused wrongful convictions with false evidence and false testimony.

Systemic Failures:

According to the OIG report, the DOJ eliminated cases that pre-dated 1985 to “reduce its work to a more manageable level.” The DOJ failed to ensure prosecutors made appropriate and timely disclosures to affected defendants. As a result, some defendants learned very late – or never – that their convictions may have been tainted. Further, prosecutors were not required to report disclosures to defendants. The Task Force was understaffed and took far too long to complete its case reviews.

The report is no easy read. It names affected defendants. It details executions and 20+ year prison sentences of wrongly-convicted men. It describes paper instead of scientific reviews of evidence. It describes the reasons why some independent reviewers on the Task Force quit the process in frustration.

OIG Recommendations Fall Far Short:

After documenting years of gross neglect and numerous examples of what amounts to a severe breach of the public’s trust, the OIG’s recommendations are a disconnect and fall far short of what is necessary to fix this problem and restore public confidence in the DOJ and FBI.  On pages 81-85 the OIG report contains very gentle suggestions that the FBI track down the affected defendants and maybe share the OIG’s report with the 26 defendants currently on death row.  In an interview with the Washington Post, Fred Whitehurst said it’s “preposterous” that two decades after he reported the forensic problems, the FBI is still allowed to re-examine its own mistakes. “When we divert our attention, we’ll be back where we were before.”

Rather than give the FBI and the DOJ another chance to further botch this review, we suggest something different.

First, the Attorney General could start by ordering a re-analysis of hairs not at the FBI but by an independent, non governmental, forensic DNA lab capable of doing mitochondrial DNA analysis with a proven quality assurance program.

Second, additional reviews and new scientific analyses should be conducted by scientists and others not associated with the FBI or DOJ.  These reviews should not be limited to hair analysis, but also include paint and other coatings, plastics, explosives, and bombing crime scene evidence – all areas that were called into question by Dr. Whitehurst’s original whistleblower allegations. While the most notorious FBI Lab examiner, Michael Malone, worked on hairs and fibers, the other 12 examiners whose cases were also supposed to be reviewed worked in other scientific areas and no credible review of those cases has been conducted to date despite promises that they would be included as part of the 1996 DOJ Task Force review.  The Attorney General should ensure that sufficient resources are devoted to conduct a real, independent and thorough review of the FBI Lab scandal.

Third, from the start of this process over 20 years ago, the internal reviews of the FBI Lab scandal by the FBI and DOJ have suffered and been hampered by the lack of transparency.  Even efforts to include outside groups to assist the FBI in reviewing hair cases suffers from a lack of transparency.  Not only did the FBI and DOJ attempt to cover up these problems for years, they fought Dr. Whitehurst, the NWC and FJP in court when they sought to get the DOJ Task Force documents released under FOIA.  Even after agreeing to release the task force records it took more than eight years for all of the records to be processed and released by DOJ and the FBI.  All files of the several reviews and task force for each affected case should be shared with the defendants and defense counsel and appropriate resources should be devoted to conducting a real independent review of who got hurt by the FBI Lab scandal.

Thank you, Dr. Whitehurst:

It is easy for people to lose track of the fact that only reason these issues are still being reviewed is because of the courageous efforts and persistence of Fred Whitehurst.  None of this would have been known but for Fred blowing the whistle on the FBI Lab in the 1990s and continuing to press for accountability of the FBI and DOJ on these issues during the past 20 years.  In addition, the problems with the DOJ task force review would not be known but for Fred continuing his work through the NWC – FJP to pursue FOIA requests and giving that information to the Washington Post and working with them to develop the story in 2011-2012, and for his persistence in seeking oversight of the FBI and DOJ.

Hats off to Dr. Whitehurst who has yet to be adequately thanked and compensated for his tireless efforts to pursue justice in this matter.