“Convicted defendants left uninformed of forensic flaws found by Justice Dept.”

Tuesday, April 17th, 2012

When you cover and read about this sort of thing everyday, you can sometimes build up a resistance to headlines like the one above.

But I mean holy hell. This ought to be pictchforks-in-the-streets stuff.

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

If it isn’t there already, the next sentence should put your chin on the floor.

Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.

I mean, think about that. Taxpayer-paid employees of the Justice Department had direct and exclusive knowledge that there may be hundreds of innocent people in prison, they knew that flawed forensics in these cases needed to be reviewed, and their justification for not doing more as these people continued to rot in prison was, Hey, we did the bare minimum required of us by law.

The immediately obvious problem here is that the ethical requirements need to be strengthened. If the task force charged with investigating possible wrongful convictions is only required to report what it finds to the prosecutor offices that won those convictions—and who obviously have a strong incentive to keep the new information under wraps—what the hell was the point of forming the task force in the first place? And why keep the task force findings from the public?

But even beyond the problematic ethical requirements, I’m having a hard time fathoming how no one on this task force felt morally compelled to go beyond those requirements—to, you know, actually reach out defense attorneys, or attempt to actually reach the convicts or their families. How in the world can you possess this sort of information, then still sleep at night, year after year, knowing that (a) the information obviously isn’t reaching the people who have an incentive to actually put it to use,  (b) you’re one of the few people who could make that happen, and (c) because the information was only available to select group of people, if you or one of your colleagues doesn’t act, no one else will?

I’m obviously fairly skeptical of government. And the criminal justice system is loaded with bad incentives. But I can’t really even think of what poorly-structured incentive would have prevented the members of this task force from doing more than the bare minimum that was required of them. It isn’t as if they were personally responsible for these mistakes. The mind boggles at the mental firewalls an otherwise decent person would have to construct to know this was happening, and still do nothing to stop it.

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63 Responses to ““Convicted defendants left uninformed of forensic flaws found by Justice Dept.””

  1. #1 |  Juice | 

    Did anyone watch Frontline last night? It was a pretty good take down of forensics “experts”.


  2. #2 |  Juice | 

    Let me try a closed italics tag and see if that works.

    Did it work?

  3. #3 |  Cyto | 

    I watched the Frontline report on forensics last night. It is a pretty good watch – particularly for the intended audience. They use the Kaylee Anthony case as a hook in the second half of the show – which might draw in a few viewers.

    My wife loves “CSI” type things, so I was telling her about the Hayne/West part of the story this morning. She wondered why this isn’t a national news story – how it doesn’t make the “CBS Evening News”…. then proceeded to check out of the conversation before I could tell her about the video of West and the dental mold. Unfortunately most people – even people who are interested and receptive to the topic – most people are just not able to hold on for a difficult and complicated argument. They want something that is feel-good, or it has to fit neatly into a 60 second package.

    I was chatting with some parents at the kids’ baseball game last night. A fairly tea-party-ish group was discussing the excesses of local and state government. They got off onto the police pay (higher than you’d believe, they said), but universally believed they were doing a dangerous job and we need more SWAT teams. They were firmly convinced that “a hundred police are killed in the line of duty just in Miami every year”. I tried to point out that not even a hundred are shot and killed every year nation wide, but they quit listening. I was the kook who thinks that cops should’t shoot child molesters and drug dealers on sight (’cause if they don’t shoot them, the cops won’t go home to their families). Forget bringing up the fact that a few hundred unarmed citizens are killed by police every year during arrest… they checked out long before that point. Any nutter who thinks that the police are not being gunned down every day is to be avoided.

    I mourn my lack of rhetorical skills – I had a somewhat receptive audience and I couldn’t move them off of the idea that hundreds of police are being slaughtered in our city, and they almost never shoot the wrong people. That should have been a slam-dunk. But even with FBI statistics at hand, all I was able to elicit was “you can find a website that will spin any statistic any way you want”. In fact, having actual facts at hand was something of a disadvantage. People don’t like having opinion confronted with fact, so they do the mental gymnastics of moving your “fact” into the realm of “opinion” and then invalidate the facts. If anything they dug in to their position even more tenaciously when I pulled out FBI police fatality statistics.

  4. #4 |  Yizmo Gizmo | 

    53..Yeah, I tell parents, strangers, students the “Land of the Free” has 2.3 million people locked up. All I get is this blank stare.

  5. #5 |  Jay | 

    I emailed a few newspapers and smaller weeklies, and was basically told, ‘unless there is a Colorado connection this story won’t ever be reported on here.’.

    Any way to get more info on this stuff?

  6. #6 |  CyniCAl | 

    “I can’t really even think of what poorly-structured incentive would have prevented the members of this task force from doing more than the bare minimum that was required of them. ” — RB

    Some quick brainstorming: apathy, groupthink, more apathy, viewing the convicted as “the other,” pressure from superiors to remain quiet, more groupthink, crimethink, desire to not rock the boat, satisfaction with minimal acceptable effort instilled by the group culture, feelings of helplessness when faced with the bureaucracy, fear of retribution for whistleblowing and a whole lot more apathy, apathy apathy.

    Plenty of incentives there. Maybe not the monetary sort, unless you count preserving one’s [pathetic, evil] career as monetary, and I’m sure the average bureaucrat thinks exactly that.

  7. #7 |  Screwed over military whistleblower | 

    To 35-year Lawyer. U said, “The Manual for Courts Martial, Rule 701, provides for two-way 100% information exchange. The sky has not fallen on Military Justice.”. I guess you never heard of any abuses by military police. I guess you never heard of junior JAG’s bowing before the power and authority of senior officer commanders. And I suppose you never in your 35-year career ever witnessed or personally experienced the full blown effect of “undue command influence”. Didn’t you know since 2003, Navy CO’s have been granted “wide latitude” in their exercise of military justice? Sure, 100% information exchange, cognitive dissonance

  8. #8 |  Fascist Nation | 

    And this?


    Frederic Whitehurst, a chemist and lawyer who worked in the FBI’s crime lab, 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.

  9. #9 |  Lowly2L | 

    I was under the impression that prosecutors have a continuing duty to disclose Brady material that extends, essentially, in perpetuity. Not only does caselaw support this but here is the the relevant ABA ethics rule (3.8):

    (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

    (1) promptly disclose that evidence to an appropriate court or authority, and

    (2) if the conviction was obtained in the prosecutor’s jurisdiction,

    (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

    (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

    Presumably, most states have adopted a similar rule. For those SA’s who were informed of this info and chose not to disclose, they should be looking at a serious bar complaint. However, I won’t hold my breath waiting for them to be disciplined.

  10. #10 |  PersonFromPorlock | 

    But I can’t really even think of what poorly-structured incentive would have prevented the members of this task force from doing more than the bare minimum that was required of them.

    Simple: “Do nothing and you’ll do nothing wrong.”

  11. #11 |  PersonFromPorlock | 

    But I can’t really even think of what poorly-structured incentive would have prevented the members of this task force from doing more than the bare minimum that was required of them.

    Simple: “Do nothing and you’ll do nothing wrong.”

    Also: “One ‘dumbshit’ wipes out 14,000 ‘attaboys’.”

  12. #12 |  Helmut O' Hooligan | 

    #17 Marty: “this makes tax day even better. damn.”

    Good point. This is one of those depressing “your tax dollars at work” stories.

    Today in my local paper, I saw to interesting “Red Team, Blue Team” stories. In the first, a protest for tax fairness was being covered. The reporter said that the crowd was chanting “tax the rich, tax the rich.” Boring. I then flipped the page and saw a story about how Republicans in congress are trying to cut food stamp programs. Nothing unusual there either. Same old, same old.

    Team Red and Team Blue need to read more stories about the massive waste–in lives and public funds–that is being promoted by the prison-industrial complex and the war on drugs. You want to save money? You want to lowere your taxes? Well we could save a whole lot of money by ending the war on drugs and the obsession with incarceration. Oh, and we could also stop intervening in the affairs of other countries.

    But Team Red and Team Blue would rather just pick on rich people and welfare recepients. Why? I guess its just the way we’ve always done it ’round here.

  13. #13 |  supercat | 

    #62 | Helmut O’ Hooligan | “…and saw a story about how Republicans in congress are trying to cut food stamp programs. Nothing unusual there either. Same old, same old.”

    Unexpected charity can sometimes benefit giver and recipient, but expectations of charity are **HIGHLY TOXIC**. The government has spent decades encouraging a substantial segment of society to become OPM addicts (“Other People’s Money). Weaning all those people from the government teat isn’t going to be easy or pleasant, but OPM addiction is horribly destructive to the recipients of “government largesse”; those who want to continue to enable people’s addictions are doing the addicts no favors.