[Congressional Record Volume 160, Number 122 (Thursday, July 31, 2014)]
[Senate]
[Pages S5290-S5291]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUSTICE FOR ALL REAUTHORIZATION ACT
Mr. LEAHY. Madam President, last week I came to the floor to talk
about the FBI's extensive use of flawed evidence in thousands of cases.
It is tragic just days later there is yet another scandal involving bad
science used to send people to jail and some to death row.
According to an internal investigation by the FBI and the Department
of Justice, nearly 2,600 convictions and 45 death row cases from the
1980s and 1990s may have involved flawed forensic evidence.
Specifically, these cases involved microscopic hair matches, a form of
forensic science that has been discredited. The scope of this scandal,
which is the focus of a front-page article in the Washington Post
yesterday, goes well beyond the problems we have previously seen when
it comes to forensic evidence. Even more troubling than the statistics
outlined in the Post's story is that the FBI, after recognizing these
egregious mistakes, stopped their full review after examining just a
small fraction of these cases. The Department of Justice has rightly
ordered the FBI to resume its internal review, but the FBI's conduct is
inexcusable.
Once again, we are reminded that our criminal justice system is not
infallible and that we are all less safe when the system fails. FBI
investigators should have redoubled their efforts to uncover these
mistakes and rushed to tell those affected defendants. Instead it
appears they dragged their feet and stopped their review. I intend to
get to the bottom of this. I have a lot of questions for the Bureau,
and I will not stop until they are answered.
When we have evidence that could prove that someone is innocent, we
must get it processed immediately. It is not only the right thing to do
for that person wrongfully accused but it is the right thing to do to
keep our communities safe. That is why I again urge the Senate to take
up and pass the Justice for All Reauthorization Act, a bill I
introduced with Senator Cornyn last year. This bipartisan legislation
includes the Kirk Bloodsworth Post Conviction DNA Testing Grant
Program, named for the first person exonerated from a death row crime
through the use of DNA evidence. This program seeks to correct these
most grievous mistakes. Senate minority leader Mitch McConnell is a
cosponsor of the bill. All Senate Democrats support passage of this
legislation. There is no reason why the Senate should not take up and
pass this important bill without further delay.
I also will continue my efforts to pass commonsense forensic science
reform legislation. The Criminal Justice and Forensic Science Reform
Act that I introduced earlier this year with Senator Cornyn would
improve the use of forensic science in criminal cases and ensure that
labs throughout the Nation are operating according to the highest
scientific standards.
I thank the many law enforcement, victim services, and criminal
justice organizations that continue to highlight the need for reform to
ensure the proper application of forensic evidence in criminal cases,
and who have urged the Senate to pass the Justice for All
Reauthorization Act.
I ask that the Washington Post article by Spencer Hsu be printed in
the Record, and I urge all Senators to join me in getting to the
serious business of providing justice to the wrongfully convicted and
passing the Justice for All Reauthorization Act.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S5291]]
[From the Washington Post, July 30, 2014]
Review Finds Two Decades of Forensic Errors by FBI
(By Spencer S. Hsu)
Nearly every criminal case reviewed by the FBI and the
Justice Department as part of a massive investigation started
in 2012 of problems at the FBI lab has included flawed
forensic testimony from the agency, government officials
said.
The findings troubled the bureau, and it stopped the review
of convictions last August. Case reviews resumed this month
at the order of the Justice Department, the officials said.
U.S. officials began the inquiry after The Washington Post
reported two years ago that flawed forensic evidence
involving microscopic hair matches might have led to the
convictions of hundreds of potentially innocent people. Most
of those defendants never were told of the problems in their
cases.
The inquiry includes 2,600 convictions and 45 death-row
cases from the 1980s and 1990s in which the FBI's hair and
fiber unit reported a match to a crime-scene sample before
DNA testing of hair became common. The FBI had reviewed about
160 cases before it stopped, officials said.
The investigation resumed after the Justice Department's
inspector general excoriated the department and the FBI for
unacceptable delays and inadequate investigation in a
separate inquiry from the mid-1990s. The inspector general
found in that probe that three defendants were executed and a
fourth died on death row in the five years it took officials
to reexamine 60 death-row convictions that were potentially
tainted by agent misconduct, mostly involving the same FBI
hair and fiber analysis unit now under scrutiny. ``I don't
know whether history is repeating itself, but clearly the
[latest] report doesn't give anyone a sense of confidence
that the work of the examiners whose conduct was first
publicly questioned in 1997 was reviewed as diligently and
promptly as it needed to be,'' said Michael R. Bromwich, who
was inspector general from 1994 to 1999 and is now a partner
at the Goodwin Procter law firm.
Bromwich would not discuss any aspect of the current review
because he is a pro bono adviser to the Innocence Project,
which along with the National Association of Criminal Defense
Lawyers is assisting the government effort under an agreement
not to talk about the review. Still, he added, ``Now we are
left 18 years [later] with a very unhappy, unsatisfying and
disquieting situation, which is far harder to remedy than if
the problems had been addressed promptly.''
Deputy Attorney General James M. Cole this month ordered
that reviews resume under the original terms, officials said.
According to the FBI, the delay resulted, in part, ``from a
vigorous debate that occurred within the FBI and DOJ about
the appropriate scientific standards we should apply when
reviewing FBI lab examiner testimony--many years after the
fact.''
``Working closely with DOJ, we have resolved those issues
and are moving forward with the transcript review for the
remaining cases,'' the FBI said.
Emily Pierce, a Justice Department spokeswoman, said: ``The
Department of Justice never signed off on the FBI's decision
to change the way they reviewed the hair analysis. We are
pleased that the review has resumed and that notification
letters will be going out in the next few weeks.''
During the review's 11-month hiatus, Florida's Supreme
Court denied an appeal by a death-row inmate who challenged
his 1988 conviction based on an FBI hair match. James Aren
Duckett's results were caught up in the delay, and his legal
options are now more limited.
Revelations that the government's largest post-conviction
review of forensic evidence has found widespread problems
counter earlier FBI claims that a single rogue examiner was
at fault. Instead, they feed a growing debate over how the
U.S. justice system addresses systematic weaknesses in past
forensic testimony and methods.
``I see this as a tip-of-the-iceberg problem,'' said Erin
Murphy, a New York University law professor and expert on
modern scientific evidence.
``It's not as though this is one bad apple or even that
this is one bad-apple discipline,'' she said. ``There is a
long list of disciplines that have exhibited problems, where
if you opened up cases you'd see the same kinds of overstated
claims and unfounded statements.''
Worries about the limitations and presentation of
scientific evidence are ``coming out of the dark shadows of
the legal system,'' said David H. Kaye, a law professor at
Penn State who helped lead a Justice Department-funded study
of fingerprint analysis and testimony in 2012. ``The question
is: What can you do about it?''
Courts and law enforcement authorities have been reluctant
to allow defendants to retroactively challenge old evidence
using newer, more accurate scientific methods.
The Justice Department and FBI inquiry, which examines
convictions before 2000, could provide a way for defendants
to make that challenge. Because the government is dropping
procedural objections to appeals and offering new DNA testing
in flawed cases if sought by a judge or prosecutor, results
could provide a measure of the frequency of wrongful
convictions.
Responding to the FBI review, the accreditation arm of the
American Society of Crime Lab Directors last year recommended
that labs determine whether they needed to conduct similar
reviews, and New York, North Carolina and Texas are doing so.
According to a Justice Department spokesman, officials last
August completed reviews and notified a first wave of
defendants in 23 cases, including 14 death-penalty cases,
that FBI examiners ``exceeded the limits of science'' when
they linked hair to crime-scene evidence.
However, concerned that errors were found in the ``vast
majority'' of cases, the FBI restarted the review, grinding
the process to a halt, said a government official who was
briefed on the process. The Justice Department objected in
January, but a standoff went unresolved until this month.
After more than two years, the review will have addressed
about 10 percent of the 2,600 questioned convictions and
perhaps two-thirds of questioned death-row cases.
The department is notifying defendants about errors in two
more death-penalty cases and in 134 non-capital cases over
the next month, and will complete evaluations of 98 other
cases by early October, including 14 more death-penalty
cases.
No crime lab performed more hair examinations for federal
and state agencies than the 10-member FBI unit, which
testified in cases nationwide involving murder, rape and
other violent felonies.
Although FBI policy has stated since at least the 1970s
that a hair association cannot be used as positive
identification, like fingerprints, agents regularly testified
to the near-certainty of matches.
In reality, there is no accepted research on how often hair
from different people may appear the same. The FBI now uses
visual hair comparison to rule out someone as a possible
source of hair or as a screening step before more accurate
DNA testing.
This month, the inspector general reported that inattention
and foot-dragging by the Justice Department and the FBI led
them to ignore warnings 15 years ago that scientifically
unsupported and misleading testimony could have come from
more than a single hair examiner among agents discredited in
a 1997 inspector general's report on misconduct at the FBI
lab.
The report said that as of 1999, Justice Department
officials had enough information to review all hair unit
cases--not just those of former agent Michael P. Malone, who
was identified as the agent making the most frequent
exaggerated testimony.
By 2002, Maureen Killion, then director of enforcement
operations, had alerted senior criminal division officials to
``the specter that the other examiners in the unit'' were as
sloppy as Malone, the inspector general said.
``This issue has been raised with the FBI but not resolved
to date,'' Killion wrote to then-Assistant Attorney General
Michael Chertoff and his principal deputy, John C. Keeney, in
July 2002, the report said.
Twelve years later, the Florida case shows the continued
inadequacy of officials' response.
Duckett, then a rookie police officer in Mascotte, Fla.,
was convicted of raping and strangling Teresa McAbee, 11, and
dumping her into a lake in 1987.
After a state police examiner was unable to match pubic
hair found in the victim's underwear, prosecutors went to
Malone, who testified at trial that there was a ``high degree
of probability'' that the hair came from Duckett.
Such testimony is scientifically invalid, according to the
parameters of the current FBI review, because it claims to
associate a hair with a single person ``to the exclusion of
all others.''
The Florida court denied Duckett's request for a new
hearing on Malone's hair match. The court noted that there
was other evidence of Duckett's guilt and that the FBI had
not entirely abandoned visual hair comparison.
Duckett attorney Mary Elizabeth Wells confirmed this week
that Duckett's case was under the FBI's review. Both Wells
and Whitney Ray, a spokeswoman for Florida Attorney General
Pam Bondi, said Thursday that parties had not been notified
of results, but they otherwise declined to comment.
Duckett's case was eligible for the 1996 review as a Malone
case but was omitted, even though the inspector general
stated that ``it was important to the integrity of the
justice system'' that all of Malone's death-penalty cases be
immediately reviewed.
The Justice Department declined to comment on the omission.
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