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Déjà Vu All Over Again at FBI Lab

I expected to find the blawgosphere abuzz this morning over yesterday's joint investigative report by 60 Minutes and The Washington Post revealing that hundreds of defendants remain incarcerated even though their convictions came about with the help of a discredited FBI forensic tool known as comparative bullet-lead analysis. Even though the FBI discarded the test two years ago as having no scientific validity, it never notified the affected defendants or courts. As I write this, response so far among legal bloggers has been muted, but it is still early the morning after the 60 Minutes broadcast.

One blogger who has commented is Andrew Cohen, author of the Washington Post blog Bench Conference. It is déjà vu all over again, Cohen suggests, conjuring up the memory of FBI whistleblower Frederick Whitehurst, who a decade ago identified systemic problems within the FBI crime lab and helped expose the agency's cover-up when cornered. "Somewhere, Frederick Whitehurst is saying: See? I told you so," Cohen writes. And he could not be more prescient, because Whitehurst's Forensic Justice Project put out a statement this morning saying, in so many words, We told you so. The statement indicates -- and the Washington Post report confirms -- that the work of the project and of the affiliated National Whistleblower Center helped expose the weaknesses in bullet-lead analysis. For Cohen, there is a lesson in all this that Whitehurst might well agree with:

Remember this story -- and the ones like Whitehurst's that have preceded it -- the next time government lawyers stand up in court and vouch for the accuracy and reliability of federal 'experts' offering conclusions about the import of evidence. Remember it, too, when a Justice Department lawyer tells a federal judge that the executive branch is worthy of trust and deference in the legal war on terrorism because law enforcement officials have deemed someone to be a terror suspect.

Another blogger to comment on the report is Mark Obbie at LawBeat. Obbie dons his journalism-professor hat to find fault with the over-hyping of the Washington Post piece written by reporter John Solomon. The story, says Obbie, "suffers from excessive hype" and left him "feeling I was hoodwinked." The trouble comes, in part, from the FBI's preemptive strike: It released a statement on Friday promising to do everything the report on Sunday would criticize it for failing to do. "Solomon's revelation of this 'problem-solved' turn in his story comes too late, in the 13th graf, after 12 grafs that seem to say the problem persists and is being addressed for the first time publicly in this story," Obbie complains. Another problem: It is not until the 21st paragraph that the piece mentions the role of the Forensic Justice Project in exposing this injustice. "The chest-thumping tone of the report suggests a level of originality that, it turns out, is lacking," he says.

One footnote to the story, on this very day that The American Lawyer publishes its Summer Associates Survey, is that four summer associates at Skadden, Arps, Slate, Meagher & Flom in New York played a central role in helping compile this report. The Post and 60 Minutes conducted a nationwide review of cases in which this tainted evidence played a role. As part of that review, the four associates picked through electronic court filings in search of cases.

Posted by Robert J. Ambrogi on November 19, 2007 at 01:46 PM | Permalink | Comments (0)


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