Remarks of Gerald B. Lefcourt,
President,
National Association of Criminal Defense Lawyers
Washington, D.C.
Nov. 25, 1997
LEFCOURT: Good Morning.
At a press conference two weeks ago, FBI Lab Director Donald Kerr announced a new policy in which FBI DNA Lab examiners will state flatly, under oath, that an individual on trial is the source of a DNA sample collected as evidence during a criminal investigation. That policy is scientifically unsound and belies a history of problems in the FBI's DNA Unit which is only now coming to light.
The Justice Department's Office of Inspector General (OIG), which conducted the 18-month investigation and released the report this year, has been on notice of problems in the FBI's DNA Analysis Unit (DNAU) as far back as December 1995, when OIG Investigative Counsels and Special Agents interviewed FBI Special Agent Martin Alevy regarding allegations of incompetence and misconduct in the DNA Unit. Unlike many FBI Lab examiners, Alevy has a strong background in science -- a BS in chemistry and a Ph.D. in microbiology. Prior to working with the FBI, he did recombinant DNA research at Baylor University in Houston, TX.
In an OIG memorandum obtained by NACDL, and which is one of your handouts, Dr. Alevy listed numerous concerns about questionable practices in the DNA Unit. Among them:
- Plastic pipettes were used to extract DNA which had been dissolved in chloroform. Chloroform also dissolves plastic pipettes.
- Quantities of DNA placed in the testing gel to study band patterns were not measured properly. Amounts too great could cause problems.
- Examiners commonly overexposed autoradiographs so that DNA bands appeared football-shaped rather than as a line. This makes it difficult for an examiner to accurately locate the center of a band for analysis. Some examiners would manually move a band for analysis, which could cause a misreading.
- Regarding the problem known as "band-shifting," in which the bands from supposedly identical DNA samples do not match exactly for technical reasons, the FBI's Laboratory Division accepted a 2-2.3 percent variation in band matches. Dr. Alevy stated he thought this was too great a variation and noted that the issue was not addressed in scientific literature outside the FBI Lab.
Dr. Alevy also had concerns about the FBI's limited database of known DNA samples, which is a key component of the "new" technique. This problem, which eventually should be surmountable, was also addressed in the May 1996 National Research Council Report, The Evaluation of Forensic DNA Evidence, which recommends a conservative estimate of the statistical likelihood of a match. Instead, the FBI now wants to be able to state to a "scientific certainty" that two DNA samples match. This is an assertion no other forensic DNA laboratory would dare make -- because there are no certainties in science, only probabilities.
Moreover, such testimony directly violates the laws of evidence in many states, which prohibit an expert witness from stating an opinion on a ultimate fact in issue -- namely, the guilt of a criminal defendant. It is the job of the jury to decide guilt or innocence, not a "13th juror" paid or prompted by the prosecution.
Nor was Special Agent Alevy the only insider to express concerns about the DNA unit. According to Special Agent Greg Parsons, who eventually transferred out of the DNA Unit, all DNA/serology examiners in the DNA Unit (except possibly one) failed an open proficiency serology test in 1989. (An "open" test is one in which the examiner knows he or she is being tested, as opposed to a "blind" test, in which the examiner does not know he or she is being tested.) A supervisor threw away the test results because, according to an FBI agent in the lab, "he feared they would be discoverable" by defense lawyers. The test was re-administered and all examiners passed. Former DNA Unit Chief Alan Robillard has acknowledged to OIG investigators that he ordered the results of the proficiency test destroyed, claiming the test was flawed. Whether or not his assertion is true, destruction of the test results still amounts to the withholding of exculpatory evidence in countless cases.
That same examiner who witnessed destruction of the proficiency test results also stated to Justice Department investigators that there was a DNA lab technician or examiner -- to quote from another one of your handouts -- "who would determine if suspects were Afro-Americans. If so, he would manipulate test results to prove guilt." Reportedly that examiner was terminated, but the OIG apparently did not proceed to learn which cases were corrupted by the examiner's malfeasance; indeed, the Inspector General's office apparently did not even bother to learn the agent's name.
And yet another FBI agent tried to point investigators toward internal confusion within the DNA lab as to the relative capabilities of PCR DNA testing and RFLP DNA testing:
[READ THIS VERBATIM]:
"'BLANK' -- and we did not redact these, the justice department did, but we know who most of the interviewees are -- believes that if FBI examiners are being taught to testify that a PCR test -- that's one kind of DNA test -- cannot contradict an RFLP test -- that's a less sophisticated DNA test -- they are being taught to testify incorrectly. She stated she believes examiners are taught to testify in this manner in order to favor the prosecution."
As you are probably aware, the Department of Justice's Office of the Inspector General recently completed an 18-month investigation of the FBI Lab and released its final report last this spring. That report, however, only dealt with allegations of incompetence, misconduct and perjury coming out of the Explosives Unit, the Chemistry and Toxicology Unit and the Materials Analysis Unit.
NACDL's Freedom of Information Act suit relating to the investigation has produced some of the documents we are releasing today.There are 24 units in the Lab's 5 sections, and the Department of Justice's Inspector General investigated only three. NACDL obtained some of the documents in the handout from Sarah Webster, a reporter in Lexington, Kentucky, who is writing a book about misconduct within the West Virginia Laboratory. These are documents that are included in the material NACDL will obtain from the Dept. of Justice, but that we have not yet received. The fact that we have not received these documents directly from the Office of the Inspector General is especially interesting in light of their promise to turn over the most important documents first.
Investigators from the Inspector General's Office interviewed dozens of FBI agents during the course of their 18-month investigation. During that time, they turned up evidence that the prevailing culture of the lab -- which one agent , William Tobin, likens to a "fraternity" --is a "shoot from the hip" culture favoring the prosecution, rather than a culture of objective science, and honest search for the truth.
Tobin told Justice Department investigators -- and you should all have a copy of the transcript -- "We are far and away in too high tech an age to be sending one person, who is not even a scientist, to a crime scene, and then letting him shoot from the hip to the public, to the press, to other agencies or whatever."
These so-called experts are usually not even scientists. They are FBI agents posing as scientists in court, performing tests they are not qualified to perform, and offering 'expert' opinions, under oath and under penalty of perjury, that they are not qualified to give. For too long, these supposed experts have taken the witness stand, taken an oath to tell the truth, and then said whatever came into their heads so long as it favored the prosecution, unchallenged by the court and defense counsel. When an expert from the FBI lab was called to testify, his testimony might as well have come from the Burning Bush.
Based on the Inspector General's findings, NACDL has compiled a list of the Ten Most-Unwanted Forensic Experts from the FBI Lab. More will be added as we receive more internal records from the Department of Justice.
Take for example, Richard Hahn, who has posed as an explosives expert for years. Hahn has a bachelor's degree in chemistry from DePaul University. Hahn is criticized in the OIG report for giving scientific opinions that were far outside his area of expertise, and which were unsupported by the evidence.
Robert Heckman was criticized for changing reports by the Office of the Inspector General, and was recently impeached at the trial of "militia debutante" Carol Howe for testifying in direct contradiction of testimony he gave at an earlier trial. Heckman holds a bachelor's degree in business administration.
Roger Martz, the former Chief of the Chemistry and Toxicology Unit, holds a bachelor's degree in biology -- not chemistry, not toxicology. The Inspector General's report recommends that he not hold a supervisory position in the Scientific Analysis Section of the FBI, and if he continues to work as an examiner, he should himself be supervised by a qualified scientist. The report also recommends that another qualified examiner review any analytical work performed by Martz that is to be used in any pending or future case.
Supervising Special Agent Terry Rudolph was found to have failed to conduct the appropriate scientific analysis in numerous cases, and then lost his files. But that didn't prevent him from testifying.
Special Agent Michael P. Malone worked in the Lab's Hair and Fiber Unit. That was NOT one of the units investigated outright by the OIG. In 1991, Malone was asked by the New York State Police Crime lab, to examine a blanket for evidence in a murder case. At the trial, Malone testified that there was a "very, very strong possibility" that hair in the victim's van came from the defendant. In a devastating blow to the defense, Malone further testified that a hair he believed belonged to the victim was found on a white blanket found in a van belonging to the defendant's alleged accomplice. In contrast, the New York State Police Crime Lab investigator reported that she had found "unaccountable dissimilarities" between the victim's hair and the hair in the van.
No wonder: It turned out that the evidence in the case had been mislabeled, and that Malone had actually examined a plain white blanket that had never been near the crime scene.
Confronted with the mislabeled evidence, Malone continued to insist his analysis was accurate: "I matched a hair on the blanket. I don't know how it got there, but all I knew is . . . it's consistent" with the victim's.
NACDL is calling on Congress and the Justice Department to investigate the other 21 units in the FBI Lab. The integrity of the entire Lab is in question. As one agent said, and this is in the handout, "I tried to kind of keep my eyes closed and ears closed, keep my blinders on about the abuses."
[READING VERBATIM]: "Frankly, to have untrained, non-scientists in positions of drawing these very substantive issues . . is just asking for trouble, and it's existed for a long time."
[VERBATIM]: "Asking for botched crime scenes, asking for borderline -- I hate to say the term PERJURED TESTIMONY -- but let's just say some people have a tough time saying 'I DON'T KNOW.'
[VERBATIM]: "And you call somebody an expert, and they start sitting around cutting their clippings out, and keeping a scrapbook, and going home and telling the kids and the wife that they're the world's only Bubba, you're asking for trouble, WHEN THEY'RE NOT EVEN TRAINED.
[VERBATIM]: "They're on a witness stand. I say asking for trouble. You're talking about incomplete examinations, incorrect examinations, erroneous conclusions that are either favorable or unfavorable to the defendant and/or the prosecution.
[VERBATIM]: "It's just you're asking for trouble because the court is not being presented with technical testimony that is reliable."
[VERBATIM]: "Biased both by the person's ego and/or biased by a feeling -- and particularly with the fraternity -- that they feel that they develop with the Police Departments or whatever. One of the difficulties that I've seen through the years is too strong an association, and affiliation, and a fraternization with the boys in blue. They are not detached scientists."
[quietly]: This isn't a whistleblower, ladies and gentlemen. These are the words of an FBI lab employee-- one of the few trained scientists in the lab -- who had to get a few things off his chest.
NACDL is in the process of analyzing, indexing and digesting 60,000 pages of these documents collected by the Office of Inspector General during it's 18-month investigation, which we will be making available to defense lawyers, the press and the public. We hope that some defendants, wrongfully convicted, will get new trials or be freed. We hope that others, not yet tried, will get fair trials, by bringing honesty back to the courtroom.
Perhaps there were good reasons at the time why such leads were not followed up by OIG investigators and not made a part of the OIG's final report on the FBI Lab. But there is no good reason now for not fully investigating the DNA Unit, particularly if the FBI wants to claim infallibility and "perfect" matches in court, when the lives and liberty of American citizens are at stake.
National Association of Criminal Defense Lawyers (NACDL)