Yesterday, Senator Chuck Grassley announced that 11 whistleblowers have come forward revealing that FBI managers are now using Loss of Effectiveness orders to retaliate against FBI employees who report wrongdoing in the agency.

“Every time we bring this to the administration’s attention, more whistleblowers come forward,” Grassley said.  “These whistleblowers never have the opportunity to make their case.  It’s stereotypical treatment of whistleblowers for the executive branch.”

An FBI internal inquiry reportedly agrees that this is a problem.  According to whistleblowers, the FBI Office of Integrity and Compliance has drafted a report calling for reform and more transparency in the use of Loss of Effectiveness orders.
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On Tuesday, August 12, 2014, Senators Charles Grassley and Ron Wyden sent a letter to President Obama pressing him to release a report on effectiveness of the Federal Bureau of Investigation (FBI) regulations for protecting whistleblowers.  President Obama requested the report from the Attorney General almost two years ago.  The report “Protecting Whistleblowers with Access

The following is from guest contributor Jon C. Hopwood.
This article was originally published in 2009 on Yahoo Voice and is reprinted here by permission of the author.

Summary: Donald Eugene Gates, who was convicted of the 1982 rape-murder of a Caucasian college coed, was released on the basis of new DNA evidence.

Donald Eugene Gates, a 58 year-old African American wrongfully convicted in 1982 of the rape-murder of Caucasian college coed Catherine Schilling, was freed by the D.C. Superior Court after a DNA test revealed that he could not be the culprit.

The prosecution of Gates was heavily dependent on the testimony of F.B.I. Crime Lab analyst Michael P. Malone, who testified that two hairs found on Schilling’s body came from an African American male. Schilling, who was a student at Georgetown University, was murdered in Rock Creek Park in Washington, D.C. in 1981.

Gates, who has always maintained that he was innocent of the crime, had been imprisoned for nearly 30 years until ordered release by Senior Judge Fred B. Ugast. Ugast had overseen his trial back in 1982.

In 1988, Ugast had ordered a DNA test of the evidence used to convict Gates, but DNA testing a generation ago was primitive. The more sophisticated DNA testing of the 21st Century proved that Gates was right: He was innocent.

Crime Lab Corruption

Since the Gates trial, former F.B.I. agent Michael Malone has become notorious as an unreliable and unethical expert witness who likely committed perjury in hundreds of trials. Dr. Frederic Whitehurst of the National Whistleblower Center’s Forensic Justice Project first revealed the widespread corruption at the F.B.I. Crime Lab back in 1993, when he, too, was an F.B.I. employee.  
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The following is from guest contributor Jon C. Hopwood.
This article was originally published in 2009 on Yahoo Voice and is reprinted here by permission of the author.

Summary:  The testimony of Special Agent Michael P. Malone was instrumental in convicting Donald Eugene Gates of a rape-murder he did not commit. Gates was exonerated but scores of others convicted with Malone’s testimony are still in jail.

The testimony of Special Agent Michael P. Malone, an employee of the Federal Bureau of Investigation’s Crime Lab, was instrumental in convicting Donald Eugene Gates of a rape-murder he did not commit. After spending 27 years in prison, Gates was exonerated by a federal judge who denounced Malone and excoriated the Federal government for not revealing to him in a timely manner that Malone’s testimony amounted to perjury.

The Washington Post, in its lead editorial on Friday, December 18, 2009, lambasted the office of the U.S. Attorney for the District of Columbia for failing to report that it knew that Malone’s testimony was bogus. Donald Gates finally achieving justice, but scores of others convicted with Malone’s testimony are still in jail.

“Justice Delayed”

Donald Eugene Gates, a 58 year-old African American wrongfully convicted in 1982 of the rape-murder of Caucasian college coed Catherine Schilling, was exonerated by D.C. Superior Court Senior Judge Fred B. Ugast on December 18, 2009. Ugast, the judge who oversaw Gates’ original trial, had earlier freed him after a DNA test revealed that he could not be the man who killed Schilling.

Due to the improper conduct of the U.S. Attorney’s Office, which prosecuted the Gates case, Schilling’s rapist-killer remains free.

The prosecution of Gates was heavily dependent on the testimony of F.B.I. Crime Lab analyst Michael P. Malone, an F.B.I. agent, who testified that two hairs found on Schilling’s body came from an African American male. Schilling, a Georgetown University student, was murdered in 1981.

The Washington Post, in the lead editorial in its Friday edition that came out before Ugast exonerated Gates, quoted a statement Gates made at the time of his trial, 27 years ago: “I didn’t kill her. I never saw her. I am sorry she died, because her death has ruined my life.” 
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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. 
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On July 22, 2014, Cynthia Schnedar, Deputy Inspector General at the Justice Department, was interviewed by Federal News Radio about the DOJ OIG’s recent bombshell report documenting how DOJ failed to properly review criminal convictions that were impacted by the FBI Lab scandal in the 1990s.

Notably, the OIG report found that 16 people were executed and 8 prisoners died before there was a complete review of the scientific flaws in the evidence used to obtain those convictions. The OIG report lists 402 cases that the earlier DOJ review found were impacted by the FBI Lab scandal.

However, Deputy Inspector General Schnedar conceded in her radio interview that the number of cases actually impacted by the FBI Lab scandal “is really unknown” twenty years after the Justice Department started looking at problems in the FBI crime lab.

She also stated that many other defendants “may have died” or been deported before there was a review, and the DOJ’s earlier review improperly narrowed the scope leaving doubt as to whether innocent people were convicted with evidence from the FBI Lab.

Deputy IG Schnedar also stated in passing that the DOJ’s earlier review grew out of allegations raised by a FBI whistleblower.
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A major newspaper has published an editorial highly critical of the Federal Bureau of Investigation in light of the Justice Department Inspector General’s bombshell report on the FBI Lab scandal.  Last week, the DOJ IG documented serious flaws in the Justice Department’s review of thousands of criminal cases that were impacted by tainted forensic evidence from the FBI Lab.  As a result of the Justice Department’s serious lapses and delays in reviewing thousands of cases affected by the FBI Lab scandal, 16 people were executed and 8 prisoners died before there was a complete review of the scientific flaws in the evidence used to obtain those convictions.

As pointed out by the Charlotte Observer, the “malfeasance” of the FBI, and the lack of a thorough or professional review by the DOJ, raises serious questions as to how many innocent people remain in jail, and how many people have been executed, as a result of thousands of convictions that relied on flawed forensic evidence from the FBI Lab.  
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Additional Reviews of FBI Lab Scandal Still Needed 20 Years Later

On July 21, 2014, more than twenty years after a FBI whistleblower came forward to report serious problems at the FBI Lab that could impact thousands of cases, another FBI Lab scandal victim was found innocent and freed by the D.C. Superior Court.

Kevin Martin, age 50, spent 26 years in prison for crimes he did not commit.  He pleaded guilty to rape and murder under an Alford Plea (pleading guilty acknowledging the government has evidence of guilt but maintaining one’s innocence).  He did so only after his attorney was shown hair evidence that the FBI Lab had examined and claimed Martin’s hair matched a hair from the crime scene.  DNA testing has now proven the FBI’s claim to be false, resulting in Mr. Martin’s release and exoneration.

See Washington Post: Man exonerated in 1982 D.C. killing; DNA reveals FBI error in conviction

And Fox5 News:  Man officially exonerated in 1982 DC rape and murder

Significantly, Mr. Martin has maintained his innocence for more than 30 years, even after he accepted the Alford plea.  But nobody believed Mr. Martin until yesterday.
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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).]  
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