Cleveland
Wright has asked a D.C. Court judge to clear his name after new DNA
test results in 2012 exonerated his co-defendant in two similar 1978
murders. (Alexandra Garcia/The Washington Post)
Nearly every criminal case reviewed by the FBI and the Justice Department as part of a
massive investigation started in 2012 of problems at the FBI lab has included flawed forensic testimony from the agency, government officials said.
The
findings troubled the bureau, and it stopped the review of convictions
last August. Case reviews resumed this month at the order of the Justice
Department, the officials said.
U.S. officials began the inquiry after
The Washington Post reported
two years ago that flawed forensic evidence involving microscopic hair
matches might have led to the convictions of hundreds of potentially
innocent people. Most of those defendants never were told of the
problems in their cases.
The inquiry includes 2,600 convictions
and 45 death-row cases from the 1980s and 1990s in which the FBI’s hair
and fiber unit reported a match to a crime-scene sample before DNA
testing of hair became common. The FBI had reviewed about 160 cases
before it stopped, officials said.
(Related: ‘Irreversible harm’ when FBI didn’t reveal flawed lab work in death-row cases)
The investigation resumed after the Justice Department’s inspector general
excoriated the department and the FBI
for unacceptable delays and inadequate investigation in a separate
inquiry from the mid-1990s. The inspector general found in that probe
that three defendants were executed and a fourth died on death row in
the five years it took officials to reexamine 60 death-row convictions
that were potentially tainted by agent misconduct, mostly involving the
same FBI hair and fiber analysis unit now under scrutiny.
“I
don’t know whether history is repeating itself, but clearly the
[latest] report doesn’t give anyone a sense of confidence that the work
of the examiners whose conduct was first publicly questioned in 1997 was
reviewed as diligently and promptly as it needed to be,” said Michael
R. Bromwich, who was inspector general from 1994 to 1999 and is now a
partner at the Goodwin Procter law firm.
Bromwich would not
discuss any aspect of the current review because he is a pro bono
adviser to the Innocence Project, which along with the National
Association of Criminal Defense Lawyers is assisting the government
effort under an agreement not to talk about the review. Still, he added,
“Now we are left 18 years [later] with a very unhappy, unsatisfying and
disquieting situation, which is far harder to remedy than if the
problems had been addressed promptly.”
Deputy Attorney General James M. Cole this month ordered that reviews resume under the original terms, officials said.
(Related: U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors)
According
to the FBI, the delay resulted, in part, “from a vigorous debate that
occurred within the FBI and DOJ about the appropriate scientific
standards we should apply when reviewing FBI lab examiner testimony —
many years after the fact.”
“Working closely with DOJ, we have
resolved those issues and are moving forward with the transcript review
for the remaining cases,” the FBI said.
Emily
Pierce, a Justice Department spokeswoman, said: “The Department of
Justice never signed off on the FBI’s decision to change the way they
reviewed the hair analysis. We are pleased that the review has resumed
and that notification letters will be going out in the next few weeks.”
During
the review’s 11-month hiatus, Florida’s Supreme Court denied an appeal
by a death-row inmate who challenged his 1988 conviction based on an FBI
hair match. James Aren Duckett’s results were caught up in the delay,
and his legal options are now more limited.
Revelations that the
government’s largest post-conviction review of forensic evidence has
found widespread problems counter earlier FBI claims that a single rogue
examiner was at fault. Instead, they feed a growing debate over how the
U.S. justice system addresses systematic weaknesses in past forensic
testimony and methods.
“I see this as a tip-of-the-iceberg
problem,” said Erin Murphy, a New York University law professor and
expert on modern scientific evidence.
“It’s not as though this is
one bad apple or even that this is one bad-apple discipline,” she said.
“There is a long list of disciplines that have exhibited problems,
where if you opened up cases you’d see the same kinds of overstated
claims and unfounded statements.”
Worries about the limitations
and presentation of scientific evidence are “coming out of the dark
shadows of the legal system,” said David H. Kaye, a law professor at
Penn State who helped lead a Justice Department-funded study of
fingerprint analysis and testimony in 2012. “The question is: What can
you do about it?”
Courts and law enforcement authorities have
been reluctant to allow defendants to retroactively challenge old
evidence using newer, more accurate scientific methods.
The
Justice Department and FBI inquiry, which examines convictions before
2000, could provide a way for defendants to make that challenge. Because
the government is dropping procedural objections to appeals and
offering new DNA testing in flawed cases if sought by a judge or
prosecutor, results could provide a measure of the frequency of wrongful
convictions.
Responding
to the FBI review, the accreditation arm of the American Society of
Crime Lab Directors last year recommended that labs determine whether
they needed to conduct similar reviews, and New York, North Carolina and
Texas are doing so.
According to a Justice Department spokesman,
officials last August completed reviews and notified a first wave of
defendants in 23 cases, including 14 death-penalty cases, that FBI
examiners “exceeded the limits of science” when they linked hair to
crime-scene evidence.
However, concerned that errors were found
in the “vast majority” of cases, the FBI restarted the review, grinding
the process to a halt, said a government official who was briefed on the
process. The Justice Department objected in January, but a standoff
went unresolved until this month.
After more than two years, the
review will have addressed about 10 percent of the 2,600 questioned
convictions and perhaps two-thirds of questioned death-row cases.
The
department is notifying defendants about errors in two more
death-penalty cases and in 134 non-capital cases over the next month,
and will complete evaluations of 98 other cases by early October,
including 14 more death-penalty cases.
No crime lab performed
more hair examinations for federal and state agencies than the 10-member
FBI unit, which testified in cases nationwide involving murder, rape
and other violent felonies.
Although FBI policy has stated since
at least the 1970s that a hair association cannot be used as positive
identification, like fingerprints, agents regularly testified to the
near-certainty of matches.
In
reality, there is no accepted research on how often hair from different
people may appear the same. The FBI now uses visual hair comparison to
rule out someone as a possible source of hair or as a screening step
before more accurate DNA testing.
This month, the inspector
general reported that inattention and foot-dragging by the Justice
Department and the FBI led them to ignore warnings 15 years ago that
scientifically unsupported and misleading testimony could have come from
more than a single hair examiner among agents discredited in a 1997
inspector general’s report on misconduct at the FBI lab.
The
report said that as of 1999, Justice Department officials had enough
information to review all hair unit cases — not just those of former
agent Michael P. Malone, who was identified as the agent making the most
frequent exaggerated testimony.
By 2002, Maureen Killion, then
director of enforcement operations, had alerted senior criminal division
officials to “the specter that the other examiners in the unit” were as
sloppy as Malone, the inspector general said.
“This issue has
been raised with the FBI but not resolved to date,” Killion wrote to
then-Assistant Attorney General Michael Chertoff and his principal
deputy, John C. Keeney, in July 2002, the report said.
Twelve years later, the Florida case shows the continued inadequacy of officials’ response.
Duckett,
then a rookie police officer in Mascotte, Fla., was convicted of raping
and strangling Teresa McAbee, 11, and dumping her into a lake in 1987.
After
a state police examiner was unable to match pubic hair found in the
victim’s underwear, prosecutors went to Malone, who testified at trial
that there was a “high degree of probability” that the hair came from
Duckett.
Such testimony is scientifically invalid, according to
the parameters of the current FBI review, because it claims to associate
a hair with a single person “to the exclusion of all others.”
The
Florida court denied Duckett’s request for a new hearing on Malone’s
hair match. The court noted that there was other evidence of Duckett’s
guilt and that the FBI had not entirely abandoned visual hair
comparison.
Duckett attorney Mary Elizabeth Wells confirmed this
week that Duckett’s case was under the FBI’s review. Both Wells and
Whitney Ray, a spokeswoman for Florida Attorney General Pam Bondi, said
Thursday that parties had not been notified of results, but they
otherwise declined to comment.
Duckett’s case was eligible for
the 1996 review as a Malone case but was omitted, even though the
inspector general stated that “it was important to the integrity of the
justice system” that all of Malone’s death-penalty cases be immediately
reviewed.
The Justice Department declined to comment on the omission.