News Release ~ 02/25/1997

Court Action Commenced to Disclose Report Critical of FBI Lab

Life and Liberty versus FBI's "Image"

Washington, DC (February 25, 1997) -- "The first resort of tyrants is secrecy," said William B. Moffitt, Vice President of the National Association of Criminal Defense Lawyers (NACDL) at a press conference today after the Association filed suit to force disclosure of a government report critical of the FBI's crime 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.'"

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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