The FBI will solicit help from The Innocence Project, located in New York, and the National Association of Criminal Defense Lawyers to review some 18,000 convictions where the FBI gave testimony related to hair and fiber analysis. This collaboration will look for errors and omissions in the analyses and testimony provided by the FBI analysts. Since some of these cases date back to as early as 1985, this review could, at first blush, simply be viewed as necessary in light of the improvements in science. Sadly, that is not the case.
The FBI lab initially investigated only the errors of FBI Special Agent Michael P. Malone, who conducted the hair and fiber analyses on thousands of cases. This initial review found that many of Mr. Malone’s results were not only wrong, but in some cases Malone’s results and live testimony in courts all across the country were either bogus or fraudulent. Often Malone embellished the importance of results and even withheld exculpatory results from the prosecutors and defense attorneys.
Former Justice Department inspector general Michael R. Bromwich says that this review is “an important and necessary response to the multiple documented cases in which flawed hair microscopy analysis and testimony have led to wrongful convictions.” Bromwich did much of the lab investigation in the 1990s of the erroneous forensic work coming out of the FBI laboratory.
We applaud the Justice Department for performing internal reviews of its own work and rooting out bad actors. The problem, as the The Washington Post reported in April, is that the Justice Department knew about the tainted procedures since the 1990s. Despite this knowledge, the Justice Department failed to disclose any of of its findings to the defendants or their attorneys in the thousands of cases where this tainted evidence could have caused a miscarriage of justice. Instead, the results of FBI reviews of conclusions and testimony in individual cases were given only to the prosecutors of the trials, who often did nothing with them but stash them in the case file.
But Justice Department officials constitutionally and legally only have to turn this reviewed evidence over to the prosecutor. It is ultimately the responsibility of the prosecutor to retrieve all favorable evidence from other government actors, like the FBI, and provide that to the defense. The FBI is not required to directly inform defendants. The problem arises when the prosecutor receives evidence such as this in an older, “closed” case–evidence indicating that an agent of the preeminent law enforcement agency in the Nation misrepresented or even fabricated incriminating evidence and presented it at a defendant’s trial. There is little incentive for the prosecution to turn it over to the defense. They already have their guy. He has likely been in prison for many years already. And the urgency of current case loads take precedence over fixing past mistakes.
Since the legality of passing information only to the prosecutors has let so much life-changing evidence fall through the cracks, the 18,000 cases that the FBI has promised to review must make its way into the appropriate hands. The Innocence Project’s involvement must at least partially assure that the evidence reviews reach both the possibly wrongfully convicted individual and his attorney.
To avoid wrongful convictions, for the sake of the innocent, and make these reviews actually have value, this conclusions that false or misleading evidence was presented in these reviewed cases must be turned over to the party it is of most pertinence to: the defense.
We applaud the FBI in trying to clean up past injustice. They just can’t go halfway and must do everything possible to make sure evidence favorable to the defense actually sees the light of day. The Innocence Project of Florida stands ready to assist in reviewing any Florida-based cases found in this review.