FBI's Forensic Test Full of Holes
By John Solomon
The Washington Post
Sunday 18 November 2007
Lee Wayne Hunt is one of hundreds of defendants whose convictions
are in question now that FBI forensic evidence has been discredited.
Hundreds of defendants sitting in prisons nationwide have been
convicted with the help of an FBI forensic tool that was discarded more
than two years ago. But the FBI lab has yet to take steps to alert the
affected defendants or courts, even as the window for appealing
convictions is closing, a joint investigation by The Washington Post and
"60 Minutes" has found.
The science, known as comparative bullet-lead analysis, was first
used after President John F. Kennedy's assassination in 1963. The
technique used chemistry to link crime-scene bullets to ones possessed
by suspects on the theory that each batch of lead had a unique elemental
makeup.
In 2004, however, the nation's most prestigious scientific body
concluded that variations in the manufacturing process rendered the
FBI's testimony about the science "unreliable and potentially
misleading." Specifically, the National Academy of Sciences said that
decades of FBI statements to jurors linking a particular bullet to those
found in a suspect's gun or cartridge box were so overstated that such
testimony should be considered "misleading under federal rules of
evidence."
A year later, the bureau abandoned the analysis.
But the FBI lab has never gone back to determine how many times its
scientists misled jurors. Internal memos show that the bureau's managers
were aware by 2004 that testimony had been overstated in a large number
of trials. In a smaller number of cases, the experts had made false
matches based on a faulty statistical analysis of the elements contained
in different lead samples, documents show.
"We cannot afford to be misleading to a jury," the lab director
wrote to FBI Director Robert S. Mueller III in late summer 2005 in a
memo outlining why the bureau was abandoning the science. "We plan to
discourage prosecutors from using our previous results in future
prosecutions."
Despite those private concerns, the bureau told defense lawyers in a
general letter dated Sept. 1, 2005, that although it was ending the
technique, it "still firmly supports the scientific foundation of bullet
lead analysis." And in at least two cases, the bureau has tried to help
state prosecutors defend past convictions by using court filings that
experts say are still misleading. The government has fought releasing
the list of the estimated 2,500 cases over three decades in which it
performed the analysis.
For the majority of affected prisoners, the typical two-to-four-year
window to appeal their convictions based on new scientific evidence is
closing.
Dwight E. Adams, the now-retired FBI lab director who ended the
technique, said the government has an obligation to release all the case
files, to independently review the expert testimony and to alert courts
to any errors that could have affected a conviction.
"It troubles me that anyone would be in prison for any reason that
wasn't justified. And that's why these reviews should be done in order
to determine whether or not our testimony led to the conviction of a
wrongly accused individual," Adams said in an interview. "I don't
believe there's anything that we should be hiding."
The Post and "60 Minutes" identified at least 250 cases nationwide
in which bullet-lead analysis was introduced, including more than a
dozen in which courts have either reversed convictions or now face
questions about whether innocent people were sent to prison. The cases
include a North Carolina drug dealer who has developed significant new
evidence to bolster his claim of innocence and a Maryland man who was
recently granted a new murder trial.
Documents show that the FBI's concerns about the science dated to
1991 and came to light only because a former FBI lab scientist began
challenging it.
In response to the information uncovered by The Post and "60
Minutes," the FBI late last week said it would initiate corrective
actions including a nationwide review of all bullet-lead testimonies and
notification to prosecutors so that the courts and defendants can be
alerted. The FBI lab also plans to create a system to monitor the
accuracy of its scientific testimony.
The Post-"60 Minutes" investigation "has brought some serious
concerns to our attention," said John Miller, assistant director of
public affairs. "The FBI is committed to addressing these concerns. It's
the right thing to do."
The past inaction on bullet-lead contrasts with the last time the
FBI's science was called into question, in the mid-1990s, when 13 lab
employees were accused of shoddy work and of giving overstated testimony
involving several disciplines, including explosives as well as hair and
fiber analysis. Back then, the Justice Department reviewed hundreds of
cases in which FBI experts testified, and it notified prisoners about
problems that affected their convictions. The government did so because
prosecutors have a legal obligation to turn over evidence that could
help defendants prove their innocence.
Current FBI managers said that they originally believed that the
public release of the 2004 National Academy of Sciences report and the
subsequent ending of the analysis generated enough publicity to give
defense attorneys and their clients plenty of opportunities to appeal.
The bureau also pointed out that it sent form letters to police agencies
and umbrella groups for local prosecutors and criminal defense lawyers.
Even the harshest critics concede that the FBI correctly measured
the chemical elements of lead bullets. But the science academy found
that the lab used faulty statistical calculations to declare that
bullets matched even when the measurements differed slightly. FBI
witnesses also overstated the significance of the matches.
The FBI's umbrella letters, however, glossed over those problems and
did little to alert prosecutors or defense lawyers that erroneous
testimony could have helped convict defendants, one of the recipients
said.
"Frankly, the letters that they sent them, you know, were minimizing
the significance of the error in the first place," said defense lawyer
Barry Scheck, whose nonprofit Innocence Project has helped free more
than 200 wrongly convicted people. The letters said that "our science
wasn't really inaccurate. Our interpretation was wrong. But the
interpretation is everything."
The FBI said last week that the 2005 letters "should have been
clearer." Scheck has now been asked to assist the FBI's review.
Since 2005, the nonpartisan Forensic Justice Project, run by former
FBI lab whistle-blower Frederic Whitehurst, has tried to force the
bureau to release a list of bullet-lead cases under the Freedom of
Information Act. The Post joined the request, citing the public value of
the information. But the government has stalled, among other things
seeking $70,000 to search for the documents.
"By stonewalling and delaying the release, Justice has ensured that
wrongfully convicted citizens are deprived of their right to appeal or
seek post-conviction relief because the statute of limitations in many
states has expired," said David Colapinto, the lawyer for the group.
As part of its review, the FBI will release all bullet-lead case
files involving convictions.
The Scope of the Cases
Most of the estimated 2,500 instances in which the FBI performed
bullet-lead exams involved homicide cases that were prosecuted at the
state and local levels, where FBI examiners often were summoned as
expert witnesses for the prosecution.
To compile an independent list, The Post and "60 Minutes" conducted
a nationwide review, interviewing dozens of defense lawyers, prosecutors
and scientific experts. The effort also included a sweep of electronic
court filings conducted by four summer associates at the New York law
firm Skadden Arps Slate Meagher & Flom.
In many of the cases that raise the most compelling questions, the
inmates might have a hard time winning the public's sympathy. Some had
criminal backgrounds and most were convicted with at least some
additional circumstantial evidence linking them to gruesome crime
scenes. But the common thread is that removing the flawed bullet-lead
evidence has created reasonable doubt about guilt in the minds of legal
experts, the courts and at least one juror.
In North Carolina, Lee Wayne Hunt, 48, remains in prison after being
convicted 21 years ago of a double murder. Hunt was an admitted
marijuana dealer, but has steadfastly denied involvement in the
killings. The FBI testified that its bullet-lead analysis linked
fragments from the victims to a box of bullets connected to Hunt's
co-defendant. That was the sole forensic evidence against Hunt. State
prosecutors recently conceded that the analysis should not be considered
"scientifically supported and relied upon."
In addition, the attorney for Hunt's co-defendant, who committed
suicide in prison, has since declared that his client carried out the
murders alone.
Despite both developments, Hunt has been denied a new trial.
"What they're relying on here is technicalities to keep an innocent
man in prison," said Richard Rosen, Hunt's attorney.
Another North Carolina case highlights the impact that FBI
bullet-lead testimony had on local jurors. James Donald King faces
execution after being convicted of killing his two wives. He admitted to
killing his first wife, spent time in prison, was released on parole,
remarried and then was convicted of murdering his second wife.
The court is considering whether to grant a new trial.
"If the state had not introduced evidence linking a bullet in Mr.
King's car to the bullet fragments in the victim, there would have been
reasonable doubt in my mind as to Mr. King's guilt," juror Michelle Lynn
Adamson said in an affidavit supporting his appeal.
Other defendants have had mixed results:
In Maryland, the Court of Appeals last year reversed the murder
conviction of Gemar Clemons and ordered a new trial, concluding that the
FBI's bullet-lead conclusions "are not generally accepted within the
scientific community and thus are not admissible."
In New Jersey, courts have reversed and reinstated convictions in
cases involving bullet lead. The conviction of one defendant, Michael
Behn, was reversed, but he recently was re-convicted on other evidence.
Shane Ragland's conviction in the 1994 killing of a University of
Kentucky football player was reversed after Kathleen Lundy, an FBI
bullet-lead examiner, pleaded guilty to giving false testimony in his
case about bullet-lead manufacturing. A few weeks ago, Ragland pleaded
guilty to a lesser charge and is now free.
Ernest Roger Peele, a retired FBI agent who testified about bullet
matching in 130 cases, stands by his testimony but said that sometimes
the nuances of science get "lost in the adversarial nature of the
courtroom." He said he would no longer tell jurors that bullets can be
linked to specific boxes because of the science academy's findings.
Peele, who said he was frustrated that he was never contacted by the
academy, added that his bullet matches were meant to be "a part of a
puzzle" and never the only forensic evidence. "Is it possible there are
innocent people in jail? Yes. Is it possible that bullet lead was part
of that process? Yes."
The Origins of the Science
The FBI's bullet-lead analysis was created more than four decades
ago to link suspects to crimes in cases in which bullets had fragmented
to the point where traditional firearms tracing - based on gun-barrel
groove markings - would not work.
So FBI scientists used chemistry to try to find matches. Their
assumption was that bullets made from the same batch of lead would have
the same chemical composition. U.S. bullet-makers recycle lead from car
batteries and melt it down in huge amounts, and it was believed that
each batch would produce bullets sharing the same trace elements.
The FBI first used the technique after Kennedy's assassination,
hoping to determine whether various bullet fragments came from the same
gun. In July 1964, then-FBI Director J. Edgar Hoover wrote to the
commission investigating the assassination that the bureau's findings
were "not considered sufficient" to make any matches.
By the early 1980s, the bureau was the only practitioner of the
science and routinely used it to help state and local police link
crime-scene bullets to those in a gun or a box owned by a suspect. There
are few federal murder statutes, but the FBI routinely helps local law
enforcement by providing forensic expertise in homicide cases.
In the mid-1990s, Lundy used the science to help prove that Clinton
White House lawyer Vincent W. Foster committed suicide, internal FBI
documents show.
In the early days, bullet fragments were subjected to neutron beams
that would allow scientists to measure the presence and amounts of at
least three chemical elements: antimony, arsenic and copper. If two
bullets had similar measurements of those three elements - the FBI
allowed for a small margin of error - they were declared a match.
In 1996, the bureau switched to a new method called "inductively
coupled plasma optical emission spectroscopy," in which scientists
identified and measured seven trace elements in the bullets, adding the
elements bismuth, cadmium, tin and silver. The goal was to increase the
precision of the tests. But at the same time that it was measuring more
elements, the FBI doubled the margin of error for declaring matches.
"Not enough suspects were being caught in the new net using seven
elements, so they chose to use a bigger net," said Clifford Spiegelman,
a statistician at Texas A&M University who reviewed the FBI's
statistical methods for the science academy.
The bureau conducted a study in 1991 that called bullet-lead
analysis a "useful forensic tool" that produced "accurate" and
"reproducible" matches.
The study, however, raised two concerns.
First, it found that bullets packaged 15 months apart - a span that
assumed separate batches of lead - had the exact composition,
potentially undercutting the theory that each batch was unique.
Second, it found that bullets in a single box often had several
different lead compositions. That finding, it cautioned, should have
"significant impact on interpretation of results in forensic cases."
Peele, the retired bullet-lead examiner, was the primary author of
that study. He said he still felt comfortable having told jurors in the
past that bullets from the same box could be expected to match, as long
as his remarks were carefully qualified.
In the Hunt case, he testified that his match of the crime-scene
bullets to those in the suspects' box was "typical of everything we
examined coming from the same box or the next closest possibility would
be the same type, same manufacturer, packaged on or about the same day."
Peele said that he always tried to tell jurors that some bullets in
the same box might not match. Still, he said it was reasonable for
jurors to conclude that matching bullets could have come from the same
box. "I don't think it's misleading as long as it's fully explained," he
said.
Some of Peele's colleagues went further. FBI examiner John Riley
told a Florida jury: "It is my opinion that all of those bullets came
from the same box of ammunition." A New Jersey prosecutor suggested that
the bullets matched by the FBI were as unique as a "snowflake or
fingerprint."
Today, the FBI regards all such testimony as inaccurate. "The
science does not and has never supported the testimony that one bullet
can be identified as coming from a particular box of bullets," said
Adams, the retired FBI lab director.
A Challenge From Within
The FBI's about-face was prompted by a challenge from within its
ranks.
William Tobin, an FBI lab metallurgist for a quarter-century, won
accolades working on cases such as the crash of TWA Flight 800, in which
he helped prove that the plane was downed by an accidental fuel-tank
explosion, not terrorism. Shortly before he retired, Tobin was
approached by a woman who believed that the bullet-lead science used
against her brother, a New Jersey murder defendant, was flawed. Still
employed by the bureau, Tobin was not permitted to help.
But when he retired in 1998, he decided to look further. Bullet
matching had always been done by the lab's chemists, and as a
metallurgist, Tobin wondered about their assumptions. Soon he joined
with Erik Randich, a metallurgist at Lawrence Livermore National
Laboratory.
By 2001, the two had finished a study that challenged the key
assumptions that the FBI had been making about bullet lead. They found
that bullets made from the same batch did not always match, because
subtle chemical changes occurred throughout the manufacturing process.
Tobin bought bullets at several stores in Alaska and found that a large
number of bullets with the same composition and manufacturing date were
often sold in the same community, suggesting that it was wrong to assume
that a bullet match could be narrowed to one suspect.
"It hadn't been based at all on science but, rather, had been based
on subjective belief," Tobin said in an interview. "Courts, and even
practitioners, had been seduced by the sophistication of the analytical
instrumentation for over three decades."
Soon, Tobin began appearing as a witness for defendants challenging
FBI bullet-lead matches. Courts began to take notice, too, and the FBI
suddenly faced a barrage of questions about a science that had gone
unchallenged for three decades.
Adams asked the National Academy of Sciences in 2002 to examine the
FBI's work, temporarily halting new bullet-lead matches. Two years
later, the academy's findings stunned the bureau.
The panel concluded that although the FBI had been taking accurate
bullet-lead measurements in its lab, the statistical methods and its
expert testimonies were flawed.
The science "does not ... have the unique specificity of techniques
such as DNA," and "available data does not support any statement that a
crime bullet came from a particular box of ammunition," the panel
concluded. All the FBI could say going forward was that bullets made
from the same batch "are more likely" to match in chemical makeup than
those made from different batches. Adams soon declared that such
testimony was so general that it had no value to jurors, and he ended
the technique.
The FBI Response
The FBI went on the offensive to portray its decision in the best
light.
In a news release dated Sept. 1, 2005, the bureau declared that it
"still firmly supports the scientific foundation of bullet lead
analysis" but that it was ending the technique because of the questions
about its "relative probative value," the "costs of maintaining the
equipment" and the "resources necessary to do the examinations."
The bureau also sent form letters to the more than 300 police
agencies it had assisted with the science and to the umbrella groups
representing local prosecutors and local criminal defense lawyers so
they could "take whatever steps they deem appropriate."
The letters cited the academy's report but did not call attention to
the magnitude of the FBI's internal concerns.
For instance, the letters stated that the impact of the academy's
findings "on previously issued examination reports remains unaddressed."
In fact, the FBI had conducted its own review to determine how often bad
statistics led to mistaken matches.
In March 2005, the chief of the FBI chemistry unit that oversaw the
analysis wrote in an e-mail that he applied one of the new statistical
methods recommended by the National Academy of Sciences to 436 cases
dating to 1996 and found that at least seven would "have a different
result today." Marc A. LeBeau estimated that at least 1.4 percent of
prior matches would change.
If the FBI employed other statistical methods the number of
non-matches would be "a lot more," LeBeau wrote. In fact, when the
bureau tested one method recommended by the academy on a sample of 100
bullets, the results changed in the "large majority of the cases," he
wrote.
Despite the concerns, the FBI provided affidavits in at least two
cases seeking to help prosecutors sustain convictions that were based on
bullet-lead matches.
In one such affidavit introduced in Maryland, the FBI cited the
academy's report but did not mention it faulted the bureau's statistical
methods.
That omission concerns the chairman of the academy panel.
The affidavit "does not discuss the statistical bullet-matching
technique, which is key and probably the most significant scientific
flaw found by the committee," said Kenneth MacFadden, a private
chemistry expert.
MacFadden and Spiegelman said they also believed the affidavit was
misleading, because it estimates that the maximum number of .22-caliber
bullets in a batch of lead was 1.3 million. The academy said the number
could be as high as 35 million.
In a May 12, 2005, e-mail, the deputy lab director told LeBeau, "I
don't believe that we can testify about how many bullets may have come
from the same melt and our estimate may be totally misleading."
FBI officials said Friday they will stop using the affidavit.
"They said the FBI agents who went after Al Capone were the
untouchables, and I say the FBI experts who gave this bullet-lead
testimony were the unbelievables," Spiegelman said.
http://www.truthout.org/docs_2006/111807A.shtml
--
"New York Times has all ready sent me a response stating you have
been warned."
-- prison clerk heishman lying as "Osprey" <noneedtok...@mail.com>
in news:2rCdnZNy7LA5OojdRVn_iw@comcast.com
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