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.
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.”
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.
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