By Washington Post Editorial Board, Published: April 20
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
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 such standards.
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.