Some Defendants Unaware Of FBI's Flawed Forensics

Sloppy work by forensic examiners at an FBI lab produced unreliable evidence for trial — and may have helped send innocent people to jail. A Justice Department review turned up the problems and prosecutors were notified. But many representatives for the defendants themselves were never told. Audie Cornish talks to Washington Post reporter Spencer Hsu.

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AUDIE CORNISH, HOST:

In 2004, a justice department taskforce completed a review of thousands of criminal cases with one thing in common, questionable forensic work that might have led to wrongful convictions. But eight years later, The Washington Post now reports that prosecutors have yet to notify defendants or their attorneys of the findings in many of these cases. The story comes from Post reporter Spencer Hsu, who joins me now.

And Spencer, first, a little background. This taskforce began its work back in the mid-'90s. Tell us more about sort of how it started up and the questionable forensic work they were investigating.

SPENCER HSU: The Justice Department created this taskforce in January, 1996 in anticipation of an inspector general report into allegations by an FBI whistleblower of misconduct at the FBI lab. And the investigation, when it came out in April, '97, ultimately found misconduct by 13 agents involving some of the nation's highest profile cases, including the O.J. Simpson murder investigation, the first World Trade Center attack and the Oklahoma City federal building bombing in '95.

CORNISH: So how many cases did that mean looking into?

HSU: The Justice Department set out to review what it thought was 6,000 to 7,000 cases or examinations performed by the discredited agents. Of those, about 1,200 resulted in convictions. Of those, we found records of more than 250 cases where the agent's work was so critical to conviction or otherwise problematic, for example, that files had disappeared or prosecutors weren't cooperating, that they ordered an independent scientific review of the FBI agent's work.

CORNISH: So you're talking about the taskforce review sort of being triggered by one FBI analyst. I mean, what is it that you found in your reporting that led you to believe they should've cast a much wider net?

HSU: It turned out that the 250 or so cases that were separately reviewed overwhelmingly had to do with one discipline, hair and fiber analysis, and one examiner. The reviewers went on to keep that focus on those cases, even though the types of errors that that analyst was making, you know, testifying outside his expertise, beyond his notes, not adequately documenting his findings, were not unique to him.

CORNISH: You've done considerable legwork on some specific cases here. In your reporting, you talk about one man in Texas who was executed after the taskforce began its review of his case. Do you have any idea how many people are still in prison because of questionable forensic work?

HSU: We do not. The best way we can answer that right now is that from a period from, you know, say the '70s until the mid-'90s, FBI rules lacked written protocols and that the FBI itself determined when it introduced DNA, was wrong 11 percent of the time. It's that universe of cases that leads us to our conclusion that hundreds of people might be sitting in prison and parole nationwide based on flawed science. And we found documentation and confirmed by interviews with lawyers that indicate that fewer than half of the defendants have been notified.

CORNISH: So help me out here. It's a Department of Justice taskforce, so whose job was it to notify these defendants that, hey, your case was under review?

HSU: The Justice Department made a pivotal decision that was criticized at the time, that they were going to rely on prosecutors only and not the defense and that they would turn over the results to prosecutors for the ultimate decision on whether to turn over the information again to the defendant. This is a constitutional requirement, the letter of the law that prosecutors make the final call.

In this case, they can also point out that, you know, half the cases originally that they looked at were state and local cases. Ultimately, of those that reached this final stage of review, 90 percent of those were state and local. They didn't want to be in a position of telling the state and local officials what to do, but the toll, district attorneys and defense lawyers told us, was that arguably the department shirked its ethical responsibility or moral responsibility to notify defendants, given that it was federal agents who were the ones whose misconduct was implicated.

CORNISH: Spencer Hsu is a reporter for The Washington Post. Thank you, Spencer.

HSU: Thank you.

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