Designed to Fail – The 1996 FBI Analysis of Flaws in Lab Analysis and Its Relevance Today

If you were to design a process to ensure that false and misleading testimony and reports received at trial that may have led to wrongful convictions were discovered and disclosed to the necessary parties to right the wrongs, what would you do?  Now write that down, consider how to do the opposite, and you will have created the steps taken by the DOJ Task Force in its 1996 and subsequent review of cases mishandled by FBI lab analysts.

In a review of cases which included death penalty cases, in which lab analysts misstated and overstated test results, sometimes leading to wrongful convictions, capital cases were not prioritized, scientists were given little time and barred from retesting or considering a variety of significant aspects of testing that was done, and in which prosecutors were given inadequate information about errors in testing and then charged with their determining importance and whether to release them to the defense, some were executed, many served years in prison they should not have, and good staffers were left drowning in an impossible volume of work.  Most importantly, twenty years later the case review and notifications have not been completed.

The body of the report details the disturbing and disappointing follow-up that occurred once an FBI lab analyst, Dr. Frederic Whitehurst, one of the few heroes of the story, blew the whistle about defects in FBI lab analysis.  (He currently works with whistleblower.org.)The report highlights the flawed and fraudulent work done by Michael Malone, but reviews all of the aspects of the case review commenced in 1996 which continues to this day, due to the series of actions, inactions, steps and missteps undertaken by the federal government during this process. 

On October 30th of this year, Chief Defenders in New York received notice through the New York State Defenders Association that 20,000 cases prosecuted before January 1, 2000 subject to possibly flawed FBI analysis of hair and fibers were still under review, and that defenders' assistance was being sought.   If you handled cases in the 1990s or before in which FBI lab analysts participated in forensics this letter may be the first you learn of the ongoing review of the lapses and failures that may have affected your cases.  The letter was sent as a result of recommendations contained in a 2014 report issued by the Office of the Inspector General which reviewed the sorry history of these cases and suggested that defense counsel be notified of the misleading and inaccurate testimony that had occurred in so many cases.  The letter stated:

The (NYSDA) Backup Center recently received a letter from the federal Department of Justice (DOJ) [attached]. The letter, which DOJ urged be shared with other public defender organizations and offices, concerns efforts to deal with the past work of FBI Laboratory examiners that “may have failed to meet professional standards.” DOJ is trying to get information about substandard lab work out to those whose cases may have been affected. This is a follow-up regarding the Office of Inspector General’s July 2014 report entitled "An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory." That report is available here.

More specifically, DOJ is trying to provide notice to:

(1) defendants whose non-capital cases involved work by the identified examiners that was submitted for independent scientific review, as well as to defense counsel, if known, or a public defender agency where the prosecution took place; and 

(2) defense and civil liberties offices and organizations and others emphasizing that the old Task Force did not review all criminal convictions that involved one or more of the criticized FBI Laboratory examiners. The age of these cases, particularly those where convictions occurred before 1985, is hampering DOJ’s current efforts to notify those potentially affected.

Lawyers who recall FBI lab evidence playing any role in a client’s conviction before the problems were revealed should read the attached letter and contact DOJ with any questions or information.

A footnote indicates that DOJ has in progress “a comprehensive review of microscopic hair comparison analysis or testimony provided in more than 20,000 cases prior to December 31, 1999” – before mitochondrial DNA testing became routine – to ensure that no one was deprived of a fair trial by that type of flawed forensic evidence. Additional information about the microscopic hair comparison review, both by DOJ in conjunction with the Innocence Project and NACDL and by NYS DCJS, is available from the Backup Center.

We hope that you will act on this information – circulating the letter to lawyers who might have had cases from the era in question, checking files, etc. – to help ensure (re)discovery of any clients’ cases that may involve conviction based on flawed forensic evidence.

The letter included a link to the 2014 report.

Appearing on page 69, a summary of the failed history of the 1996 task force states,

In order of greatest consequence and concern, this chapter finds that:

(1) death penalty cases were not handled with sufficient urgency and priority; (2) the Task Force review scope for non-death penalty cases should have been expanded based on information about Malone during the Task Force’s case review process; (3) categories of cases were inappropriately eliminated from the Task Force’s review scope for resource-related reasons; (4) Task Force resources were insufficient; (5) the FBI caused significant delays to the independent scientists’ reviews; (6) independent scientists’ reviews were limited to a paper review; (7) inadequate efforts were made to ensure appropriate and timely disclosures to defendants; and (8) the Task Force failed to track disclosures to defendants.

From my perspective, if defense counsel were notified at the outset (see finding 7), then the rest would have been handled.  But as with so much information held by law enforcement and  favorable to the defense, we're always the last to know.  If we're ever told at all.