Evidence Grows That Fbi Lab Tainted As Many As 1,000 Cases May Be Affected By Concerns That Evidence Mishandled

SUNDAY, FEB. 9, 1997

Thousands of times each year, state and local police ask the prestigious FBI lab to help them out by examining fingerprints, blood, handwriting samples and other evidence.

When the cases go to trial, prosecutors rely on the FBI’s word.

Now, there’s concern that the word has become tarnished - and that flaws in the lab may lead to cases across the country being dismissed and old convictions re-examined.

With criticism of the lab circulating from the Justice Department’s own investigators, some prosecutors expect to face an extra burden persuading juries to rely on FBI tests for guilty verdicts. At the least, legal experts expect delays as defense attorneys challenge evidence examined by the FBI lab, for decades the most respected forensics lab in the world.

As many as 1,000 cases could be affected, according to a government source familiar with the FBI crime lab inquiry.

“This scandal will haunt the FBI for some time to come,” said Neal Sonnett, a criminal defense attorney who once headed the criminal division in the U.S. attorney’s office in Miami.

“Obviously, we are concerned,” said Michael Levy, an assistant U.S. attorney in Philadelphia. “I don’t know if any of our cases will be affected, but we certainly use their crime lab. Obviously, I feel uneasy about it.”

Critics of the lab have powerful ammunition - a draft report by the Justice Department’s inspector general charging that procedures are lax and handling of evidence is sloppy.

With such troubling findings, senators were startled last week when the FBI outlined a plan for a new $20 million lab to analyze the world’s deadliest diseases and toxins, such as the ebola virus and sarin gas.

The lab, which would employ about 60 technicians, would be located at the FBI’s training center in Quantico, Va., where the bureau is planning a new $130 million forensics lab. The bureau plans to ask for the money in 1999, according to a congressional source who attended the closed briefing.

The FBI wants the lab to fight terrorism, but critics say the need is met by existing facilities run by the Defense Department at Fort Detrick, Md., and the Centers for Disease Control and Prevention in Atlanta. In addition, critics say the FBI lacks the skill for such a lab.

“We thought ‘these guys are crazy,”’ the congressional source said. “They can’t even handle their own stuff and they’re thinking about creating a lab that has the most dangerous toxins in the world.”

Whether Congress will approve the request was unclear, but the timing was odd as the controversy swirled over the inspector general’s critical report.

The final report won’t become public for weeks, but already the lab’s work in the Oklahoma City bombing case is drawing questions. And the effects could spread.

“The report will provide a lot of fodder, and defense lawyers will try to exploit it,” said John Hicks, the former FBI assistant director who was in charge of the lab from 1989 to 1994. “A lucky defense attorney might just be persuasive enough to convince the court that there is a problem, but when those cases are subjected to scrutiny in a courtroom, they will hold up in the long run.”

Hicks said one allegation - that the lab would slant findings to support the prosecution - was “absolutely false.” Instead, he said that the lab stressed objectivity. He noted that in roughly a third of rape cases, for instance, the lab eliminates the suspect through DNA testing.

As the FBI recently removed with pay four key lab explosives staffers, the bureau said the inspector general’s two-year inquiry concentrated on three of the lab’s 23 units - explosives, chemistry/toxicology and materials analysis, which handles items such as paints, plastics, cosmetics and glass.

The Justice Department has taken “steps to preserve our prosecutions,” said Deputy Attorney General Jamie S. Gorelick, and over the past year has been quietly warning prosecutors of the potential problems.

In some cases, the prosecutor will then share the information about the lab tests with defense attorneys and the court. Or the prosecutor may decide to bypass a particular witness or to have a test redone.

Gorelick told reporters that the Justice Department has confidence in the lab generally, but acknowledged: “There are some problems with it.”

The retiring deputy director of the FBI, Weldon Kennedy, said the problems cited by the inspector general have not “compromised any past, present or future prosecutions … The FBI does not believe that any defendant’s right to receive a fair trial has been jeopardized.”

But some legal experts said questions about the lab’s credibility will linger and make extra work for prosecutors, judges and FBI agents.

“There will be big headaches,” predicted Joseph DiGenova, a former U.S. attorney in Washington, D.C. “People will file motions and this will have to be dealt with. I don’t think many cases will be affected, but there will be time-consuming litigation.”

A former senior FBI official, Oliver “Buck” Revell, expects defense attorneys to jump at the chance to challenge the lab’s reliability.

Frederic Whitehurst, once a supervisor in the FBI’s explosives lab, was demoted after he criticized the FBI lab for its handling of the World Trade Center bombing. Whitehurst, who is testifying as a defense witness in the Oklahoma City trial, has publicly said that the FBI slants its findings in favor of the prosecution, especially in high-profile cases.

Scientific misconduct denies the government information that can prove guilt or innocence, said Steven Kohn, Whitehurst’s attorney.

“Law enforcement needs accurate science,” Kohn said, “and they have messed around with the science.”

Click here to comment on this story »