By Washington Post Editorial Board, Published: April
KIRK L. ODOM was incarcerated for 20 years and Donald E. Gates for nearly 30 for crimes they
did not commit. Santae A. Tribble spent 28 years behind bars, even though
DNA evidence now shows he almost undoubtedly was not the culprit.
All of the men were erroneously convicted in the District, in part,
on the basis of forensic evidence analyzed by the FBI. Problems within the FBI
lab, particularly with hair-sample analysis, were well known to the agency and
the Justice Department; a task force spent some nine years reviewing cases after
a whistleblower revealed possible shortcomings.
In a series of articles, The Post’s Spencer S. Hsu and a team of
reporters documented how the Justice Department failed to notify lawyers
representing prisoners whose fate hinged on the FBI analysis. Some prisoners
spent years behind bars before becoming aware of the lab issues.
The problem continues to this day. The full results of the Justice
Department task force’s investigation have not been made public. Even when the
task force discovered flaws in a case, the information was turned over only to
prosecutors, who were then left to decide whether the results needed to be
brought to the attention of defense lawyers. In addition, the task force
reviewed only cases involving one FBI analyst whose work was called into
question; The Post identified cases where other analysts’ work resulted in
convictions of innocent defendants.
The FBI argues that hair-sample analysis — in which samples from a
suspect are analyzed microscopically and compared with samples found on a victim
or crime scene — is a vital and legitimate tool. Advances in DNA testing, which
allows for genetic analysis of evidence, “should not be perceived as diminishing
the value of prior practices and testimonies,” according to an FBI statement.
Administration law enforcement officials say that all hair samples collected
after 1996 have been subjected to DNA testing, when possible; they point out
that such testing is sometimes off limits because of the size or condition of
the sample. “In cases where microscopic hair exams conducted by the FBI resulted
in a conviction, the FBI is evaluating whether additional review is warranted,”
the statement said.
This does not go far enough. The agency should not be considering
“whether additional review is warranted” but how such a review should be
conducted; members of the defense bar should be part of these discussions. Any
review should, as a start, include DNA testing of hair samples in all cases that
ended in conviction — regardless of which analyst performed the work — for which
the defendant is still imprisoned or on parole. The Justice Department should
make its task force results public; if such broad disclosure presents privacy or
security problems, the department should at least make all FBI forensic analysis
and task force material available to defense lawyers.
The failings documented by The Post point to the need for better
scientific standards in forensic testing and a more open process for the
disclosure of evidence and information in criminal proceedings. Sen. Jay
Rockefeller (D-W.Va.) is weighing legislation to expand the role of the National
Science Foundation and the National Institute of Standards and Technology to set
Congress also should change the law regarding discovery. Prosecutors
should not be deciding which pieces of evidence seem exculpatory and must be
turned over to the defense. They should be required to open their files to
defense lawyers, with exceptions for witness protection or national security.