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Justice Delayed? Justice Cancelled?

7:04 pm in Government by Bill Fisher

The time is late Autumn 2006. A middle-aged African American inmate sits in the jail cell in Arizona he has occupied for 24 years.

He has little reason to hope he’ll ever see the outside of this prison again – except for one possibly monumental new development – the perfection of a new approach to DNA testing that was not available at the time of his conviction.

He has requested the DNA tests and has heard rumors that such advanced testing is being done in his case – but he’s heard all the jailhouse rumors before and tends to minimize their value.

According to the Innocence Project, On June 22, 1981, Catherine Schilling, a 21-year-old Georgetown University student, was found raped and murdered in Rock Creek Park in Washington, D.C. She was nude and had been shot five times in the head.

The Project reports that on July 20, 1981, Gates, 30, “was arrested for failing to appear in court on an unrelated case. Gates, who had been arrested six times for robbery and assault between 1980 and 1981, gave up a hair sample as part of a processing procedure.”

It’s what was done and said about hair samples and other forensics in the years ahead that would reveal enough lying and corruption to blow the lid off the so-called state of the art FBI Laboratory and force it to forfeit its reputation as the gold standard among forensic crime labs.

The Innocence Project reports that Gates was charged with the rape and murder after a police informant, Gerald Mack Smith, claimed that he and Gates were drinking in the park when Gates said he wanted to rob the victim, but when she resisted, he killed her.”

The Project added, “Smith later picked out Gates’ photo. He was paid $50 for the initial tip and $250 for picking out the photograph. In all, Smith would be paid $1,300 for his help on the case.”

Trial records and memoranda to this reporter from trial observers at Gates’ trial in 1982, reveal that key testimony came from FBI forensic analyst Michael Malone who said that Gates’ pubic hairs were “microscopically indistinguishable” from hairs found on the victim’s body.

On September 16, 1982, Gates was convicted. He was sentenced to 20 years to life in prison.

In 1997, a scathing internal review of the FBI laboratory was conducted by the DOJ Inspector General, who found that Malone and other analysts made false reports on cases across the country and performed inaccurate laboratory tests.

In January 2002, the U.S. Justice Department sent a letter to prosecutors in the case, informing them that Malone’s lab report was not supported by his notes and advising them to determine whether the defense should be notified. The defense was not notified.

In 2007, Gates sought DNA testing again. Two years later, the request was granted and the tests, conducted on a sample of biological evidence found at the District of Columbia medical examiner’s office, eliminated him as the killer and rapist.

So a grievous miscarriage of justice was arguably corrected, albeit far too late. Nonetheless, it was a bittersweet moment for Gates, who was released on December 15, 2009 – after 27 years in prison.

On December 18, 2009, the charges were dismissed. Gates was given $75 and a bus ticket to Ohio.

But the joy for the system was short-lived. The reason is that hundreds, perhaps thousands, of people had possibly been unlawfully tried and sentenced partly based on the junk science that applies to all forensics, with the exception of DNA. In Gates’s case, the analysis of his single hair was the only physical evidence introduced in court, and thus probably heavily responsible for his conviction.

In the many other trials that took place across the country before, during and after the Gates case, the approach to forensics had not changed. Forensic “scientists” were still intent on stretching a flimsy spandex shield over a mountain of unscientific interpretation.

The use of unscientific evidence to obtain convictions was not limited to Malone, according to Dr. Frederic Whitehurst, considered to be the premiere whistle-blower in this whole sordid episode.

It was Whitehurst and his colleagues, lawyer David Colapinto, and the staff at the National Whistleblowers’ Center, who kept this story alive. Dr. Whitehurst originally exposed forensic flaws that may have led to many wrongful convictions, as reported in last week’s Washington Post front-page story. For years, Dr. Whitehurst has urged the Justice Department to act on systemic flaws that he witnessed while serving as the top explosives expert in the FBI Crime Lab. The NWC and Whitehurst assisted the Washington Post in its investigation into the Justice Department’s failure.

In response to the widespread outrage and condemnation of the FBI lab and Dr. Whitehurst’s original whistleblower disclosures, the Justice Department formed a Task Force to review thousands of cases impacted by Dr. Whitehurst’s allegations and to determine if any individuals were wrongly convicted.

Although the Justice Department and FBI pledged to correct their mistakes, documents obtained by the NWC through the Freedom of Information Act (FOIA) suggest a government attempt to suppress embarrassing mistakes at the expense of innocent defendants, lawyer Colapinto said.

As reported by the Washington Post, convicted defendants were left uninformed of serious flaws in the forensic evidence presented in their cases long after the Justice Department had confirmed that serious problems existed, according to Colapinto.

When he left the FBI Crime Lab in 1998 after 16 years of service, Dr. Whitehurst vowed to continue his work to find all the defendants harmed by the FBI’s misconduct. It was then he established the NWC’s Forensic Justice Project.

Whitehurst said, “The (Washington ) Post came to us after the Washington DC Public Defender Sandra Levick proved Gates innocent with DNA evidence. It was only after I got out of the FBI that I started researching the Malone cases. I have a tremendous file that the Post also has that will show you the over 1800 files we have identified where Malone was involved.”

Sandra Levick found out about Gates as a result of a DOJ disclosure made to Gates’ prior attorney that DOJ was looking at Gates’ case as a result of the 1997 DOJ Inspector General report on FBI Lab practices and alleged misconduct raised by Whitehurst. DOJ never provided any further notification to the prior attorney about what happened. The judge appointed the Public Defender Service and the case was assigned to Levick.

Whitehurst adds, “The (then) Inspector General, Michael Bromwich, has publicly spoken in anger that nothing was done beyond the IG report about Malone. There are potentially thousands and thousands of victims of this subjective practice.”

However, the DOJ put together a Task Force, presumably to follow up on the IG investigation into the FBI Lab practices and to investigate and identify the other inmates convicted based on inaccurate forensic evidence. That Task Force convened for eight years (between 1996-2004) and the consensus among knowledgeable observers is that is achieved zero.

The Task Force first said it would fully examine all the cases that might have been infected by false evidence. Then they came up with about 250 cases, and announced they would only do paper reviews of the cases, not going back to examining evidence. They sent these paper assessments to the prosecutors of the respective cases, leaving it at the prosecutors’ discretion as to whether to share the information with defense counsel.

As Gates’s lawyers were never notified, hundreds of other defense lawyers were passed over as well.

The Task Force also consistently ignored instructions from presiding judges to send their reports up the food chain to their superiors.

Now Sandra Levick is writing to the D.C. judges requesting the assignment of a judge to sit for whatever remaining cases there are. She wrote:

“The investigation that the United States has thus far conducted (at least insofar as is known to undersigned counsel) has not been adequate to the task. It has been too narrow in scope, too one-sided in execution, and the results have been too slow in coming. Moreover, as more fully set forth in our letter of April 14, 2010 – to which the government has never responded – the investigation and its initial results lack transparency and an opportunity for meaningful adversarial or judicial oversight.”

“First, the government’s investigation remains incomplete even by its own narrow terms. The United States reported on March 12, 2010, that there were “more than one hundred additional names.”

“Second, the United States has not responded to our request for a broader investigation to include all cases where the prosecution relied on FBI microscopic analysis of hair or fiber without DNA testing to obtain a conviction. As is more fully set forth in our letter of April 14, 2010, hair or
fiber microscopy has been proven too lacking in a scientific basis and too unreliable to support the kind of testimony that was used to convict Mr. Gates and, it is feared, many others. This is so whether or not the individual examiner’s integrity has been called into question as was Mr. Malone’s.”

“Third, the United States has not responded to our request for a more transparent investigation and a greater opportunity for adversarial testing and judicial oversight. As is discussed at length in our April 14, 2010, letter, the United States risks repeating the failures of the DOJ Task Force and the United States Attorney’s Office to apprise Mr. Gates of the results of the OIG Report by yet again resorting to a secret inquiry with respect to others who may have been affected.”

The court ordered DOJ to turn over its review of Gates case to Levick. DOJ never had transmitted the report to the prior attorney even though it had been completed many years before as part of he review of lab cases resulting from Whitehurst’s allegations about the lab.

As it turned out, DOJ had conducted a paper review of Malone’s work in the Gates case, but the review was not conclusive and no trial transcripts existed. Levick then asked the court for an order to locate the original hair evidence in Gates case for DNA testing. When the sample was later found the DNA test ruled out Gates thus contradicting Malone’s testimony that the hair evidence matched Gates. As a result, the court released Gates in late 2009.

David Colapinto, counsel to the National Whistleblowers Center, tells us that that “Malone’s misconduct in cases was known in the FBI dating back to the 1980s and the knowledge that Malone was testifying falsely in many cases became more widespread as a result of Dr. Whitehurst’s whistle blowing and the subsequent IG investigation. DOJ was certainly on notice of the magnitude of the problem by the mid-1990s.”

Of the inmates and former inmates who were convicted with unlawful evidence, it is safe to say that no one knows precisely how many there are or where they are. Nor does the government appear to have any plan to identify them and provide new trials or rehearings. Some doubtless died in prison. Others have been paroled. But whistleblowers believe the bulk of prisoners continue to be prisoners.

And they vow to keep up the pressure until justice is done.

The FBI laboratory has once again assumed a position of credibility, largely based on DNA, the only scientific tool anywhere in the forensics lab. It is now located in a state-of-the art complex at Quantico Virginia.

But for those who pay attention when our government fails, the thousands of unlawfully convicted prisoners remain as a grim legacy caused by lies and corruption and faux science that will haunt the lab forever.

Steven Aftergood, editor of the Government Secrecy Report for the Federation of American Scientists, summed up the situation this way:

“It’s an astonishing, scandalous story. What we have is a systemic failure. It’s not just the FBI lab itself that failed, which it did, egregiously. So did the Justice Department, by withholding its knowledge of the matter from those who could have acted on it. So did congressional oversight, and so did the courts, by failing to demand and deliver accountability. The price was paid by those who were wrongfully convicted.”

He added: “I would like to see some congressional involvement in charting a path forward, which should include providing remedies for past errors and developing new mechanisms for preventing future errors.”

Lawyers Matter!

12:58 pm in Government by Bill Fisher

 The year was 1953. I was a bureau chief for the Daytona Beach News-Journal, covering the Volusia County seat, Deland, Florida. That beat meant covering the cops and the courts. 

As a young and arguably too idealistic reporter, I was profoundly disappointed in both. I learned that bad lawyering presents a real threat to some of our country’s most precious values.

I learned this by watching, on too many days, lawyers who showed up in county court visibly hung over, unable to address the bench coherently. I learned this by watching lawyers who showed up in court having never met their client and having never read his or her record (most of these defendants were black). I learned this by watching defense lawyers failing to object when prosecutors presented evidence the defense clearly never saw. I learned this by listening to prosecutors engage in rhetoric so inflammatory that it would have been thrown out by most any judge, assuming the judge was paying any attention. I learned this by watching prosecutors totally bamboozle juries by using over-the-top rhetoric and playing fast and loose with the facts of a case (this was a no-brainer in the Jim Crow era in the American South). 

But the lawyers I heard all those years ago were not all bad lawyers; some of them were good lawyers practicing law badly. The reason they were practicing badly is that they were unprepared to defend their clients. And they were unprepared because they were appointed by the court. These reluctant volunteers earned a few dollars a day in fees, had little time for client contact, and had no resources to research the allegations against the accused. 

That situation came about because there was no public defender, no legal aid organization, and virtually no lawyers who saw the defense of poor black men and women as any part of their responsibilities. 

All of these memories came screeching back to me as I watched a meeting of the American Bar Association on C-Span. It was here that I first learned about one of the prices the Republicans in Congress expect us to pay in order to bring down the nation’s budget deficit: cutting $75 million from the budget of the Legal Services Corporation (LSC), the agency that funds civil legal services for the poor. 

The LSC is a private, non-profit corporation established by the U.S. Congress to seek to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. It was created in 1974 with bipartisan congressional sponsorship and the support of the Nixon administration, and is funded through the congressional appropriations process. Among other programs, LSC provides grants to help local legal aid groups to operate more efficiently for more poor people.

But none of this apparently impressed the Republicans in Congress. The cut in the LSC’s funds was part of their global plan to eliminate $74 billion from the federal budget. And to make matters worse, the Republican-led House Appropriations Committee upped its overall cutting goal from $74 to $100 billion, bowing to pressure from the Tea Party. The increase would likely mean an even larger reduction in LSC funding. 

The proposed $75 million funding cut would represent a 17 per cent reduction from the Obama Administration’s proposed increase in LSC funding for Fiscal Year 2011 to $435 million. The Congressional cut would amount to a 14 percent decline from LSC’s current funding of $420 million. 
Read the rest of this entry →

A Second Chance for Second-Class Justice?

11:30 am in Executive Branch, Government, Justice Department, Military, Torture by Bill Fisher

photo: burge5000 via Flickr

The report in yesterday’s New York Times that the Obama Administration is preparing to resurrect Military Commissions to try Guantanamo detainees probably sounds the death knell for the kind of justice meted out by Federal civilian courts in the U.S. for more than two centuries.

Instead, according to some of the nation’s most respected legal authorities, we are about to slither into the quicksand of a regressive judicial “system” designed, not to dispense justice, but to get convictions.

The Administration’s plans can only be characterized as a defeat. They come exactly two years after the President, on his second day in office, vowed to the American people that he would close the iconic prison at Guantanamo.

Since then, that objective has been immobilized by a perfect storm. The President’s Task Force assigned to review each detainee’s case found itself hog-tied by the Bush Administration’s sloppy housekeeping: case files were a shambles, incomplete and scattered throughout the government; before they could be read and assessed they had to be found and assembled. That took time not anticipated.

Then, a Federal judge ruled in the matter of the Uighers – Muslims from China – held at GITMO for years without charge or trial. These men had already been cleared for release – but where were they to go? They couldn’t be sent home to China, where they surely would face China’s merciless justice system. So the DOJ and the State Department worked overtime, trotting out all the blandishments and incentives only a superpower has to dispense in an effort to cajole countries to become Uighur hosts.

Amidst this genuine – and exhausting — effort, a Federal Judge took up the Uighurs’ case. Designated innocent, scheduled for release, and yet still imprisoned for years. The judge stopped just short of a heart attack when he ruled that the Uighurs should be brought to the United States for resettlement with families here that were awaiting them.

Predictably, the government appealed that decision, and the appeals court ruled that courts could not made immigration regulations; that was the job of the Department of Homeland Security.

But while the lower court decision was overturned, the tiger was out of the bag. Congress had picked up on the possibility that exonerated GITMO detainees would soon be running up and down the main streets of America, bumping into you at the Mall.

It didn’t take much for our courageous lawmakers – on both sides of the aisle – to show how much they appreciated Obama’s respect for the rule of law. In record time, they passed a bill stipulating that no Guantanamo detainee would be released inside the U.S. and mandating Obama to give Congress advance notice before moving a detainee to the U.S. for trial.  . . . Read the rest of this entry →