[Vision2020] Justice in America: Not!

[Art Deco]

From:  *The Washington Post   *
http://www.washingtonpost.com/local/crime/doj-review-of-flawed-fbi-forensics-processes-lacked-transparency/2012/04/17/gIQAFegIPT_print.html
------------------------------
   DOJ review of flawed FBI forensics processes lacked transparency By Spencer
S. Hsu<http://www.washingtonpost.com/spencer-s-hsu/2011/03/02/ABJ7xmP_page.html>,
Jennifer Jenkins and Ted Mellnik, Published: April 17

The bombshell came at the most inopportune time.

An FBI special agent was testifying in the government’s high-profile
terrorism trial against Omar Abdel Rahman, the “blind sheik” suspected of
plotting the first attack on the World Trade
Center<http://www.washingtonpost.com/wp-dyn/content/article/2008/02/17/AR2008021700601.html>
.

Frederic Whitehurst, a chemist and lawyer who worked in the FBI’s
crime lab<http://voices.washingtonpost.com/spy-talk/2010/03/whitehursts_legacy_still_haunt.html>,
testified that he was told by his superiors to ignore findings that did not
support the prosecution’s theory of the bombing.

“There was a great deal of pressure put upon me to bias my interpretation,”
Whitehurst said in U.S. District Court in New York in 1995.

Even before the Internet, Whitehurst’s extraordinary claim went viral. It
turned out he had written or passed along scores of memos over the years
warning of a lack of impartiality and scientific standards at the famed lab
that did the forensic work after the World Trade Center attack and in other
cases.

With the FBI under fire for its handling of the 1993 trade center attack, the
Oklahoma City bombing<http://www.washingtonpost.com/wp-srv/national/longterm/oklahoma/oklahoma.htm>and
the O.J.
Simpson murder case<http://www.washingtonpost.com/wp-dyn/content/article/2007/09/12/AR2007091202605.html>,
officials had to act.

After the Justice Department’s inspector general began a review of
Whitehurst’s claims, Attorney General Janet
Reno<http://www.washingtonpost.com/wp-srv/politics/govt/admin/reno.htm>and
FBI
Director Louis J.
Freeh<http://www.washingtonpost.com/wp-srv/politics/govt/admin/reno.htm>decided
to launch a task force to dig through thousands of cases involving
discredited agents, to ensure that “no defendant’s right to a fair trial
was jeopardized,” as one FBI official promised at a congressional hearing.

The task force took nine years to complete its work and never publicly
released its findings. Not the results of its case reviews of suspect lab
work. Not the names of the defendants who were convicted as a
result.<http://www.washingtonpost.com/wp-srv/special/local/fbi-crime-lab-case-reviews/>And
not the nature or scope of the
forensic problems<http://www.washingtonpost.com/local/crime/investigating-flaws-in-forensics/2012/04/16/gIQAMSDSMT_gallery.html>it
found
.

Those decisions more than a decade ago remain relevant today for hundreds
of people still in the U.S. court system, because officials never notified
many defendants of the forensic
flaws<http://www.washingtonpost.com/local/crime/convicted-defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_story.html>in
their cases and never expanded their review to catch similar mistakes.

A review of more than 10,000 pages of task force documents and dozens of
interviews demonstrate that the panel operated in secret and with close
oversight by FBI and Justice Department brass — including Reno and Freeh’s
top deputy — who took steps to control the information uncovered by the
group.

“It was not open,” said a person who worked closely with the task force and
who spoke on the condition of anonymity because the bureau and Justice
Department maintain a strong influence in forensic science. “Maybe [a
coverup] wasn’t the intent, but it did seem to look that way. . . . It was
too controlled by the FBI.”

The documents and interviews tell a story of how the Justice Department’s
promise to protect the rights of defendants became in large part an
exercise in damage control that left some prisoners locked
away<http://www.washingtonpost.com/local/crime/2012/04/16/gIQAbndgMT_story.html>or
in the dark for years longer than necessary. The Justice Department
continues to decline to release the names of defendants in the affected
cases.

A Washington Post review of the department’s actions shows an agency
struggling to balance its goal of defending convictions in court with its
responsibility to protect the innocent. The Justice Department’s decision
to allow prosecutors to decide what to disclose to defendants was
criticized at the time and allowed most of the process to remain secret.
But by cloaking cases in anonymity, failing to ensure that defendants were
notified of troubles with their cases and neglecting to publicly report
problems or recommend solutions, the task force obscured problems from
further study<http://www.washingtonpost.com/wp-srv/special/local/forensic-analysis-methods>.


Justice Department spokeswoman Laura Sweeney said the federal review met
constitutional requirements by allowing prosecutors in the affected cases
to make the final decision whether to disclose potentially exculpatory
information to the defendants.

“In January 1996 the Department established a Task Force to advise
prosecutors of the Office of Inspector General investigation of the FBI
lab,” Sweeney said in a statement. The task force worked with prosecutors
and the FBI “to notify the relevant prosecutors [local, state and federal]
so that they could determine what information needed to be disclosed to
defense counsel.”

*Scathing report*

If the Justice Department was secretive, the agency’s independent inspector
general was not. Michael R. Bromwich’s probe culminated in a devastating
517-page report in April 1997on misconduct at the FBI
lab<http://www.fas.org/irp/agency/doj/oig/fbilab1/00exesum.htm>.


His findings stopped short of accusing agents of perjury or of fabricating
results, but he concluded that FBI managers failed — in some cases for
years — to respond to warnings about the scientific integrity and
competence of agents.

The chief of the lab’s explosives unit, for example, “repeatedly reached
conclusions that incriminated the defendants without a scientific basis” in
the 1995 Oklahoma City bombing, Bromwich wrote. The head of toxicology
lacked judgment and credibility and overstated results in the 1994 Simpson
investigation. After the 1993 World Trade Center attack, the key FBI
witness “worked backward,” tailoring his testimony to reach the result he
wanted. Other agents “spruced up” notes for trial, altered reports without
the author’s permission or failed to document or confirm their findings.

The investigation led to wide-ranging changes, including higher laboratory
standards and requirements for examiners.

Meanwhile, the Justice Department set out to evaluate discredited agents’
work in thousands of cases that had gone to trial.

Jim Maddock, the FBI’s assistant general counsel, told reporters that the
goal of the new task force was to identify any potentially exculpatory
information that had arisen in any criminal case involving agents
criticized in the report.

“We are undertaking that review,” Maddock said at an April 15, 1997, news
conference. “And when it is done, we will give a full accounting of our
findings.”

Interviews and documents show that key decisions about the task force’s
work were made at the highest levels, including the decisions to exclude
defense lawyers from the review and not publicly release the findings.

Task force participants said Reno signed off on the decision allowing
prosecutors to decide what to disclose, because normal legal and
constitutional requirements give prosecutors that discretion.

Justice Department officials also believed that the public release of the
1997 inspector general report generated enough publicity to give defense
attorneys and their clients opportunities to appeal, task force
participants said.

“Our job was to do the scientific reviews and then to send the results to
the prosecutors, and they were responsible for determining whether they
were going to disclose or not,” Lucy L. Thomson, the chief of the task
force, said in an interview. “That was just the way Janet Reno decided to
do it.”

Reno is physically ailing and was unable to comment for this article.

Her deputy attorney general until April 1997, Jamie Gorelick, said Reno
“was very, very interested in assuring that we weren’t keeping in prison
people who deserved to have their convictions reviewed.”

“I am sure she tried as hard as she could to keep the pressure on the
bureau and on the criminal division,” Gorelick said.

*Delays, omissions*

Documents show that the FBI and Justice Department set strict rules about
what information would be disclosed as they prepared to battle defendants
who challenged convictions.

The department planned to “monitor all decisions” by federal prosecutors
over whether to disclose information, the head of the criminal division,
John C. Keeney, wrote in a memo to all U.S. attorneys on Jan. 4, 1996. The
division stood ready, if necessary, to “evaluate the allegations and, if
appropriate rebut them,” he wrote.

In addition, the Justice Department and the FBI negotiated over the limit
and scope of the task force review, the documents show.

For example, in a June 1997 memo, Keeney told federal prosecutors that the
criminal division and the FBI would “arrange for an independent, complete
review of the Laboratory’s findings and any related testimony” in all
convictions in which they found there was a “reasonable probability” that
work by discredited agents had affected the conviction or sentence.

But two months later, the senior attorney in charge of the task force told
Keeney’s deputy that the FBI indicated that it planned to require “a
cursory paper review” only and generally did not plan to reexamine evidence.

That attorney in charge, Thomson, told Deputy Assistant Attorney General
Kevin V. DiGregory in an Aug. 19, 1997, memo that the FBI also wanted to
keep the focus off the most vulnerable cases by not conducting reviews if a
case was still in litigation or on appeal — even though the panel’s work
would have been most relevant to a judge at those times.

There were other hitches. One year later, in August 1998, Thomson
complained to DiGregory that “no scientists have been retained to date” by
the FBI to conduct reviews of cases in which defendants may have been
wrongly convicted.

Reviews were “needed as soon as possible in order to avoid possibly
undercutting prosecutors’ arguments . . . and to ensure that defendants
will not exhaust opportunities to file post-conviction relief motions,”
Thomson said.

As it turned out, reviews would continue for six years, leaving defendants
in jail after having been convicted in cases with faulty forensics.

Keeney died last year after retiring in 2010 as the longest-serving federal
prosecutor in U.S. history. DiGregory did not return messages left at his
home and passed through an associate.

Thomson, now a privacy expert, said that the reviews were not cursory and
that she did not know whether any defendants had lost opportunities to
appeal their convictions.

*Reduced paper trail*

As the cases became known to state and local prosecutors, many moved
swiftly and made full disclosures. Others stymied the effort, whether
intentionally or not.

Because of the sheer passage of time, files, trial transcripts or other
records often were lost or destroyed. Personnel turnover in prosecutors’
offices often left behind no living memory of cases. Many state and local
prosecutors worked in small offices with enormous active caseloads and had
little stake in the Justice Department process.

As a result, reviewers dropped plans to require that state and local
prosecutors sign statements when they determined a discredited agent’s work
was pivotal to a case, or to explain in writing if they determined it was
not, records show.

That reduced the paper trail. As long as the task force got the
information, a participant said, it did not matter whether it was written
down.

The task force did order reviews for multiple cases in which prosecutors
refused to cooperate. For example, Tampa prosecutor Harry Lee Coe III, now
deceased, told the department that his lawyers were too overworked to
review questioned death penalty cases, documents show.

In South Carolina, the task force completed a scientific review in late
2002 in the case of Roy David Brooks, who had been convicted of murder. But
the review came after the state had destroyed records. And the destruction
of records came days after the task force wrote to prosecutors for the
third time in four years seeking such records.

Even when cases were disclosed to defense counsel, it was not clear what
was disclosed.

In some cases, one-sentence notifications were sent to defendants, many of
whom were indigent, still in prison or without attorneys.

“Please find enclosed a copy of the Attachment to Independent Case Review
Report for CDRU#6480 Case File #95-253567, which we received, from the U.S.
Department of Justice,” stated the entirety of a letter from prosecutors in
Tampa to one defendant in April 2001. That letter came 18 years after the
offense.

The attached three-page report did not contain the defendant’s name — only
strings of four- and eight-digit FBI and Justice Department code numbers.
It had nothing to indicate that it involved the particular defendant’s case
or the meaning of bland statements of scientific results.

In other cases, records indicate that prosecutors told defendants or their
attorneys early on about the inspector general’s report but never mentioned
that the task force found more-specific problems.

The task force gradually wound down when Thomson and DiGregory departed. A
new administration arrived months before the Sept. 11, 2001, terrorist
attacks, which transformed priorities. In 2002, Michael Chertoff, then
assistant attorney general for the criminal division, narrowed the review
to speed its completion, dropping unspecified “small cases.”

Through a spokesman, Chertoff declined to comment.

In addition, the criminal division stopped asking prosecutors to notify it
if they turned over review results to defense attorneys.

* *

Research director Madonna Lebling and researcher Aaron Carter contributed
to this report.




-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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