February 25, 1997
Court Action Commenced to Disclose
Report Critical of FBI Lab
"It is in everyone's best interest -- the public's, the Justice Department's, the
FBI's, the literally thousands of defendants who may be affected -- to expose these
findings to the sunshine. It's a question of integrity. The integrity of the Lab affects the
integrity and fairness of our criminal justice system, in America and before the world.
The longer they keep this report in the dark, the more public doubts will be raised about
the credibility of Lab findings in individual cases," Moffitt said.
Dan Alcorn, name partner in the Vienna, Va. firm Fensterwald & Alcorn who filed
the lawsuit on NACDL's behalf, said the requirements of Freedom of Information Act
(FOIA) are perfectly clear: an agency has 10 working days to either respond to a
request or state that it intends to withhold the requested information and why. "The
Justice Department hasn't done either," he said.
The investigation of the FBI Lab by the Justice Department's Inspector General began in 1995 after a supervising special agent in the lab charged that physical evidence in several high profile cases, including the World Trade Center and Oklahoma City bombing cases, had been mishandled. The Justice Department took the allegations seriously enough in January 1996 to issue a memorandum advising all 93 U.S. Attorneys around the country that some cases could be in jeopardy. The whistleblower, FBI Special Agent Frederic Whitehurst, who has been openly critical of the Lab's procedures since 1982, was summarily relieved of his duties last month.
On February 4, Dr. Whitehurst won his own Freedom of Information Act suit
against the FBI in the U.S. District Court for the District of Columbia. In that case
(Whitehurst v. Federal Bureau of Investigation, C.A. No. 96-572 (GK)), U.S. District
Judge Gladys Kessler observed that "Dr. Whitehurst has made a number of serious
allegations that call into question the scientific integrity of the FBI crime lab and the
thousands of prosecutions that rely on evidence it has processed." But because Dr.
Whitehurst's suit was against the FBI, rather than the Justice Department's Inspector
General's office, Judge Kessler could only order disclosure of those portions of the
report that are in the possession and the control of the FBI.
NACDL's Freedom of Information Act suit is directed at the Inspector General's
office, which conducted the investigation and generated the report.
NACDL lawyer Dan Alcorn anticipates that the suit will be assigned to Judge
Kessler a related case, as she is already familiar with the facts underlying the two
cases.
"The intense public interest in the report supports expedited treatment as it does
not serve the public interest to prolong the doubt and confusion created by news
reports of the Inspector General report. The Department of Justice has released small
portions of the report in some pending cases around the country, demonstrating that
the material is of urgent importance to the ongoing administration of justice," the
complaint states.
According to Judge Kessler's decision in Whitehurst's case, cited in NACDL's complaint, Justice Department regulations call for expedited processing of FOIA requests if (1) the information request is exceptionally newsworthy; and (2) the information sought involves questions about the government's integrity.
In a statement Saturday, NACDL President Judy Clarke noted, "Cases are often
made or broken on scientific evidence, and the Inspector General has apparently
uncovered numerous instances in which scientific evidence at the FBI Laboratory has
been mishandled or handled so casually as to cast doubt on the validity of test results.
There are many defendants facing execution or prison because of evidence analyzed in
the FBI's Lab. They and their counsel desperately need this report to adequately
prepare their cases."
Clarke, the Federal Public Defender in Spokane, Wash., has been appointed to
represent UNABOM suspect Theodore Kaczynski, a case in which the FBI's scientific
evidence could come under close scrutiny.
NACDL Public Affairs Director Jack King, the plaintiff who filed the FOIA request on behalf of the criminal defense lawyers association, added, "If evidence has been mishandled at any stage, then it calls into question the expert's opinions, and often the entire case. Scientists call analyzing bad data 'GIGO.' It means 'Garbage In -- Garbage Out.'"
NACDL is the preeminent organization in the United States advancing the mission of the
nation's criminal defense lawyers to ensure justice and due process for persons accused of crime.
A professional bar association formed in 1958, NACDL's 9,000 direct members -- and 78 state and
local affiliates with another 25,000 members -- include private criminal defense lawyers, public
defenders, judges and law professors committed to preserving fairness within America's criminal
justice system.
National Association of Criminal Defense Lawyers (NACDL)