USA - More details about the allegation of inaccurate testimony by FBI experts in many capital cases.

More details about the allegation of inaccurate testimony by FBI experts in many capital cases. (see also JULY 16, 2014). Following, the full report. - An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory. U.S. Department of Justice Office of the Inspector General. This is the third review by the Office of the Inspector General (OIG) since 1997 related to alleged irregularities by the Federal Bureau of Investigation (FBI) Laboratory. The first two OIG reports focused on alleged FBI Lab deficiencies, the conduct of individuals were brought to the attention by a whistleblower, and remedial actions the FBI took in response to the Department recommendations. This report addresses how the Criminal Division Task Force (Task Force), created by the Department in 1996 and whose mission was redefined in 1997, managed the identification, review, and follow-up of cases involving the use of scientifically unsupportable analysis and overstated testimony by FBI Lab examiners in criminal prosecutions. This report analyzed the Task Force’s review of cases involving 13 FBI examiners the Task Force determined had been criticized in the 1997 OIG report and included in the review a close examination of cases handled by 1 of the 13 examiners, Michael Malone, the Lab’s Hairs and Fibers Unit examiner whose conduct was particularly problematic. Although the Task Force made a diligent effort to manage a complex review of thousands of cases, this report found the following serious deficiencies in the Department’s and the FBI’s design, implementation, and overall management of the case review process. 1 - Despite some effort by the Task Force to segregate for priority treatment cases involving defendants on death row, the Department and the FBI did not take sufficient steps to ensure that the capital cases were the Task Force’s top priority. It took the FBI almost 5 years to identify the 64 defendants on death row whose cases involved analyses or testimony by 1 or more of the 13 examiners. The Department did not notify state authorities that convictions of capital defendants could be affected by involvement of any of the 13 criticized examiners. Therefore, state authorities had no basis to consider delaying scheduled executions. As a result, one defendant (Benjamin H. Boyle) was executed 4 days after the 1997 OIG report was published but before his case was identified and reviewed by the Task Force. The prosecutor deemed the Lab analysis and testimony in that case material to the defendant’s conviction. An independent scientist who later reviewed the case found the FBI Lab analysis to be scientifically unsupportable and the testimony overstated and incorrect. Two other capital defendants were executed (Michael Lockhart in 1997 and Gerald E. Stano in 1998) 2 months and 7 months, respectively, before their cases were identified for Task Force review as cases involving 1 or more of the 13 examiners. Another capital defendant (Joseph Young) died in prison of natural causes in 1996 before the 1997 OIG report was published. However, the Task Force did not refer his case to the FBI for review by an independent scientist even though the prosecutor had deemed the FBI Lab analysis and testimony to be material to the conviction. It is not known whether the outcome of this defendant’s trial or his sentence would have been different without the examiner’s testimony, which in other cases was deemed scientifically inaccurate, exaggerated, and unreliable. In all, the Task Force referred only 8 of the 64 death penalty cases involving the criticized examiners for review by an independent scientist. We found evidence that the independent scientists’ reports were forwarded to capital defendants in only two cases. The Department should have handled all death penalty cases with greater priority and urgency. This report concluded that the Department should have directed the Task Force to review all cases involving Michael Malone, the FBI Lab examiner whose misconduct was identified in the OIG’s 1997 report and who was known by the Task Force as early as 1999 to be consistently problematic. Malone’s faulty analysis and scientifically unsupportable testimony contributed to the conviction of an innocent defendant (Gates), who was exonerated 27 years later, and the reversal of at least five other defendants’ convictions because of Malone’s unreliable analysis and testimony. Malone retired from the FBI in 1999, but we learned, and the FBI confirmed, in May 2014 that Malone had been performing background investigations as an active contract employee of the FBI since 2002. After we brought Malone’s contract employment to the attention of the FBI and the Department, the FBI reported that, effective June 17, 2014, Malone’s association with the FBI was terminated. While recognizing that resource management is an appropriate consideration in the Department’s decision-making, some categories of cases were inappropriately eliminated from the Task Force’s scope, including most cases that pre-dated 1985, to reduce its work to a more manageable level. The decision not to review these categories of cases devalued the liberty of and collateral consequences potentially suffered by the defendants in these cases whose convictions may have been supported by unreliable FBI Lab analysis or testimony. In our view, the Department fell short of the Task Force’s articulated mission to ensure that defendants’ rights were not jeopardized by the conduct of any of the 13 examiners when it excluded categories of cases from the Task Force’s review. The conclusion is that the Department failed to ensure that prosecutors made appropriate and timely disclosures to affected defendants, particularly in cases where the prosecutor determined that Lab analysis or testimony was material to the conviction and the report of the independent scientists established that such evidence was unreliable. Some federal and state prosecutors failed to disclose the independent scientists’ reports or did so months or years after they received them from the Task Force. As a result, some defendants learned very late – or perhaps never – that their convictions may have been tainted. The Department should have required federal prosecutors, and strongly encouraged state prosecutors, to disclose the independent scientists’ reports to defendants when the reports concluded that material Lab evidence was unreliable. The Department failed to staff the Task Force with sufficient personnel to implement a case review of the magnitude it undertook and it was evident that the FBI did not consistently maintain the project as a sufficiently high priority, as reflected by the irregular staffing it committed and its manner of hiring and managing independent scientists to review the work of the Lab examiners. 8 years was much too long for the Task Force and the FBI to complete the case reviews. The delays had significant consequences for individual defendants’ cases. The Department failed to require prosecutors to notify the Task Force of their disclosure determinations to enable the Task Force to track disclosures of independent reports to affected defendants. There is evidence that the prosecutors disclosed the reports in only 13 of the 402 case files we reviewed. As a result of the Department’s failure to incorporate a tracking component in the case review process, the Task Force was unable to determine whether effective notification to defendants or their counsel had been achieved. In addition, the Task Force’s communications to prosecutors did not emphasize the importance of acting swiftly to disclose the reports, particularly in death penalty cases. This report has dedicated one chapter to Michael Malone, one of the 13 FBI Lab examiners whose work the Task Force reviewed, who repeatedly created scientifically unsupportable lab reports and provided false, misleading, or inaccurate testimony at criminal trials. At the height of his career with the FBI, Malone was a senior examiner for the Hairs and Fibers Unit and handled a disproportionately large number of cases. Michael Malone earned a Bachelor’s Degree from Towson State University in Baltimore, Maryland in 1968 and then became a high school teacher where he taught biology and general science in Maryland, Virginia, and Florida. In 1970, Malone earned a Master’s Degree in Biology from James Madison University in Harrisonburg, Virginia. He joined the FBI in the same year as a Special Agent. In 1974, Malone transferred to the Hairs and Fibers Unit in the Lab, then located at FBI Headquarters in Washington, D.C., where he received training to become a hair and fiber examiner. Upon completion of his training, Malone was designated a Forensic Microscopist specializing in trace evidence. In that capacity, Malone analyzed evidence as the primary examiner, testified about his analyses in criminal trials, and served as a “confirming examiner” of his colleagues’ hair and fiber analyses. Malone became well known to many judges and the law enforcement community because of his forensic work on several high profile cases. Problems with Malone’s analyses and testimony began to surface publicly in Florida, starting in the late 1980s, when several courts reversed murder convictions on the grounds that microscopic hair comparisons were insufficiently reliable to constitute a basis for positive personal identification without other evidence to link a defendant to the murder with which he was charged. In several of these Florida cases, Malone had been the hair and fiber expert who conducted the forensic examinations and testified at trial. Malone’s credibility also came under attack as the result of his testimony in 1985 before the Investigating Committee for the Judicial Council of the Eleventh Circuit regarding the proposed impeachment of then-federal Judge Alcee Hastings. In particular, William Tobin, an FBI Lab metallurgy expert whom OIG investigators interviewed for the 1997 Report, alleged that Malone had testified falsely, outside his expertise, and inaccurately. The OIG expanded the scope of its 1994–1997 review to include Tobin’s allegations about Malone’s testimony and found that Malone had testified falsely before the Committee when attesting that he had performed a tensile test which he had not done. The OIG also found that Malone had testified “outside his expertise and inaccurately” concerning the tensile test results. The OIG recommended in the 1997 Report that the FBI assess the need for disciplinary action against Malone for this misconduct and monitor his testimony in future cases. However, the FBI did not take disciplinary action against Malone, deferring such a decision to the Department. The Department also elected not to take any action against Malone. By the time the OIG issued its report in 1997, Malone had already left the Lab to return to work as a Special Agent in the field. He was assigned to the Norfolk, Virginia office. Malone retired from the FBI in 1999. Just 3 years after his retirement, however, Malone began conducting background investigation services for the FBI. In May 2014, the OIG learned, and the FBI confirmed, that since 2002, Malone had been actively employed by Background Investigative Contract Services, an FBI contractor, performing background investigations. After Malone’s employment was brought to the attention of the FBI and the Department, the FBI reported that, effective June 17, 2014, Malone’s association with the FBI was terminated. In 1999, the FBI hired two hair and fiber experts, Cathryn Levine and Steve Robertson, to serve as independent scientists for the Task Force review. Both scientists began their reviews on May 17, 1999. After the first week’s review, however, Levine withdrew from the project, unhappy with the way the FBI had designed the review and the terms of her engagement. Cathryn Levine’s Main Reasons for Withdrawing from the FBI’s Team of Independent Reviewers were: The FBI’s lack of standard operating procedures governing examiners’ work at the time prevented the independent scientists from verifying the examiners’ analysis methods. Moreover, the examiners’ bench notes did not include information on methods used. The FBI’s policy of not permitting the independent scientists to retain copies of their case notes or their completed case review forms compromised her independence and would expose her to criticism when she would inevitably have to testify in future litigation of the cases she reviewed. The FBI’s requirement that independent scientists not disclose their review findings created a “moral and ethical dilemma” by preventing Levine from reporting Malone to the ethics committee of the forensic science board to which they both belonged. The findings and conclusions Levine reached regarding the cases she reviewed during her week at FBI Headquarters were consistent with those reached by Robertson who, thereafter, reviewed all of the Malone hair and fiber cases the Task Force referred to the FBI for independent review. The FBI did not hire another hair and fiber expert scientist to take Levine’s place, despite comments from Levine and Robertson during an FBI debriefing that it had been helpful to work in tandem for the purpose of consultation. According to Levine and Robertson, due to the inherent limitations of the paper-only reviews and the fact that the FBI Lab was not accredited until 1998, they inquired about established Lab policies or protocols that guided the Unit examiners and that Robertson and Levine could use to evaluate the Lab examiners’ compliance. The head of the Hairs and Fibers Unit informed them that no policies or protocols existed within the FBI at the time Malone and his colleagues performed their analyses of the cases Robertson and Levine were reviewing. The lack of policies or protocols rendered it extremely difficult for the independent scientists to assess the consistency or accuracy of the scientific approach used by Malone. The same would have been true had the scientists been asked to review the forensic work of any other examiners in the Hairs and Fibers Unit. Of the 312 cases the independent scientists reviewed for the Task Force, 162 cases contained hair and fiber analyses performed by Malone, relating to 172 defendants. Approximately one-third of those 162 cases also included testimony provided by Malone. According to the former Deputy Section Chief of the FBI Lab’s Scientific Analysis Section, Malone handled significantly more cases than any other Hairs and Fibers Unit examiner, causing many examiners in the Lab to question the integrity of Malone’s methodology. The fact that the number of cases handled by Malone and reviewed by the independent scientists was disproportionate to the number of cases handled by the 12 other Lab examiners subject to the Task Force review may also have reflected other factors. For example, the Tampa, Florida, State Attorney’s Office had requested that the Task Force refer all cases in his district involving Malone’s work to the FBI for review by the independent scientists. It turned out that the independent scientists deemed approximately 96 percent of the Malone cases to be problematic in one or more areas corresponding to the five questions on the case review form and as defined by the Independent Review Guidelines the FBI provided to the scientists at the start of the case reviews. Levine and Robertson found serious and consistent flaws in Malone’s work. They concluded that Malone had failed to use appropriate tests in a scientifically acceptable manner and that Malone’s testimony was often unsupportable on the basis of his bench notes, lab reports, or accepted standards in the scientific community. The scientists concluded in 94 percent (47 of 50) of the cases that either the appropriate forensic tests were not conducted or it was impossible to determine whether Malone conducted the appropriate tests. The scientists concluded that in 54 percent (14 of 26) of the cases, Malone’s testimony was inconsistent with his lab reports and that in 65 percent (17 of 26) of the cases, his testimony was inconsistent with his bench notes. With regard to whether Malone’s testimony in cases involving both hair and fiber analyses was within the bounds of his expertise (Question 5), Levine and Robertson found that Malone’s testimony was consistently overstated and much stronger than either his lab reports or bench notes supported, resulting in misleading and inaccurate testimony. Moreover, Malone testified in some cases to conclusions that were outside his area of expertise. With regard to fiber analyses, the scientists wrote in their reports that they did not believe Malone understood the appropriate use and limitations of an instrument known as a microspectrophotometer and, therefore, that he often came to scientifically inaccurate conclusions in his reports and testimony. Levine and Robertson also said that Malone’s notes regarding both fiber and hair analyses he performed were inadequate. For example, Levine said that Malone’s bench notes about his fiber analysis did not indicate which tests he performed, such as how he identified a particular fiber and often lacked detail or were indecipherable. In their independent reports of Malone’s hair and fiber analysis and testimony in four cases (including two capital cases), both Levine and Robertson documented Malone’s work as particularly unreliable, inaccurate, and unscientific. In cases involving hair analysis, Robertson also found that Malone frequently and inappropriately testified to the probability of a match when there was no scientific basis for doing so. This file review and interviews of former Task Force members and FBI personnel made clear that beginning in May 1999 and July 1999, respectively, the FBI and the Department learned that the independent scientists were finding almost all of the cases involving hair or fiber evidence analyzed by Malone to be seriously flawed. In the thousands of Task Force and FBI documents reviewed or from the interviews conducted, there was no indication to suggest that the FBI or Department ever considered submitting for independent review all cases handled by Malone where the evidence was material to the conviction, regardless of the length or nature of sentence imposed or the date of conviction. Similarly, it appeared that neither the FBI nor the Department considered the potential for a more widespread set of problems in the Hairs and Fibers Unit, which had handled many cases prior to 1985, having opened sometime in the 1960s. Nor did the FBI or the Department consider the wisdom of expanding the scope of the review to include other examiners in the Unit. Finally, there was no evidence that any consideration was given to disclosing broadly, to prosecutors or defendants, the nature and extent of the problems with Malone’s analyses and testimony. To ensure that all defendants are notified about deficiencies in the FBI Lab analysis or testimony in their cases – whether by Malone or another examiner, including cases reviewed and not reviewed by the Task Force – this report makes several recommendations to the Department in particular with respect to the categories regarding cases involving a conviction and evidence handled by 1 or more of the 13 Lab examiners, to move forward with ensuring that affected defendants receive notice, even if long overdue, of unreliable Lab analysis or testimony that may have affected their convictions. Moreover it encourages the Department and the FBI to consider working with defense organizations, such as the National Association of Criminal Defense Lawyers or entities which work to ensure protection of defendants’ rights, such as the Innocence Project and the American Civil Liberties Union and to coordinate with and use the resources of state attorneys general, district attorneys, public defenders and the federal, state, and local courts.