[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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