Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit has done a real service to the bar through his Georgetown Law Journal article “Criminal Law 2.0.”[1] As is typical of Judge Kozinski’s writings, it is clear, articulate, insightful, and provocative. In that article, he says, “there are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the fairness of criminal trials.”

Over the course of my career, I have met some prosecutors who I thought exercised extremely bad judgment by pursuing cases that never should have been filed. Recent examples of this that come to mind over the last couple of years would include the Bond[2] and Yates[3] cases. The current indictment of former Texas Governor Rick Perry would, in my view, also fall into that category.

When it comes to ethical violations, however, that is a different story. The vast majority of the prosecutors and investigators I have met over the course of my career have been honorable people who are well aware of and comply with their ethical obligations, and that includes turning over Brady[4] and Giglio5 material to defense counsel.

This does not mean, of course, that there won’t be an occasional prosecutor or investigator who becomes too intent on winning and who fails to comply with those obligations. Obvious examples of this would include the Duke Lacrosse case,[6] the Ted Stevens case,[7] and the recent prosecution of the five former New Orleans police officers for the murders that occurred on Danziger Bridge in the immediate aftermath of Hurricane Katrina.[8]

There are bad apples in every profession, but I suspect that this kind of blatant misconduct by prosecutors is extremely rare. I will acknowledge, though, that it is difficult to assess how often prosecutors and investigators skirt their ethical obligations, because they have a lot of power and control a lot of information, and abuses are often difficult to uncover. I will also acknowledge that when abuses are uncovered, they shake people’s faith in the criminal justice system.

Charges of ethical lapses should be vigorously investigated, and investigative agencies and prosecutor’s offices should not “circle the wagons” to prevent such abuses from coming to light, which is something that clearly happens from time to time. Indeed, one of the five police officers convicted in the Danziger Bridge case was convicted of covering up the shootings, not for engaging in the shootings themselves. Like a malignant tumor, an unethical prosecutor or investigator needs to be excised and dealt with accordingly, and that includes possible disbarment and prosecution.

Forensic Evidence and the Importance of Objectivity

I would like to focus my remarks on the role of forensic evidence and the problems that ensue when forensics experts lose their objectivity in their zeal to help the prosecutor obtain a conviction. In his law review article, Judge Kozinski does an admirable job of setting up and then shooting down various forms of “accepted wisdom” in the criminal justice system. One of these is that all forms of forensic evidence are scientifically proven and, therefore, infallible.

As Judge Kozinski points out, many types of forensic tests that have long been accepted by courts and admitted into evidence have high error rates. He even goes so far as to say that “[s]ome fields of forensic expertise are built on nothing but guesswork and false common sense.”[9] I am not going to take issue with that, but I want to discuss another, more insidious problem that occasionally arises with forensics experts.

Forensic evidence can and often does play an extremely powerful role in a criminal trial. Jurors watch programs like CSI New York and NCIS Los Angeles. When forensics experts speak, jurors—and many judges, too—listen and give them more credence than other witnesses, perhaps more than they deserve. People assume that men and women wearing white lab coats know what they’re talking about.

This reality places, in my opinion, a special obligation on forensics experts not to overstate the value of the evidence they present. Forensics scientists may work for law enforcement agencies, but they are not, or at least shouldn’t be, simply an arm of the prosecution team. Some forensics examiners act, however, as if their one-and-only job is to see to it that the defendant gets convicted. This can sometimes lead to tragic results.

In 2013, Annie Dookhan, a former chemist at the Hinton State Laboratory Institute in Massachusetts, pled guilty to evidence tampering.[10] Her actions may have tainted cases involving as many as 40,000 people, hundreds of whom have already been released with many more seeking new trials. In 2014, Sonja Farak, another forensic chemist in Massachusetts, pled guilty to evidence tampering and stealing some of the drugs she was supposed to be examining.[11] Hundreds of her cases are now being reviewed. Dookan and Farak intentionally tampered with the evidence, increasing the likelihood that the defendants in the underlying cases would be convicted. Other forensics labs have had similar problems.[12]

Irregularities at FBI Laboratory

In July 2014, the Justice Department’s Office of Inspector General released its third review since 1997 of alleged irregularities at the Federal Bureau of Investigation Laboratory.[13] This process began in 1994 when FBI forensics expert Frederic Whitehurst became a whistleblower and revealed irregularities in the FBI forensics lab, primarily in bombings and explosives cases, which was his area of expertise.

His allegations involved some very significant, highly publicized cases. I know; I was a member of the prosecution team in one of them, the successful mail bombing prosecution of Walter LeRoy Moody, Jr., who assassinated 11th Circuit Judge Robert Vance and civil rights attorney Robert Robinson and who sent two other pipe bombs that were discovered before they exploded.[14] For his heroic act, Whitehurst was initially vilified but ultimately largely vindicated. And other irregularities were brought to light.

The latest IG report addresses how well a Criminal Division task force that was created in 1996 did in identifying, reviewing, and following up on cases involving the use of scientifically unsupportable analyses and overstated testimony by FBI lab examiners in criminal trials. Specifically, the IG analyzed the task force’s review of cases involving 13 FBI examiners who had been criticized in the original 1997 report, paying special attention to cases handled by Michael Malone, a former hair and fiber examiner whose conduct was determined to be particularly problematic.

Malone testified in several high-profile trials including against John Hinckley, who attempted to assassinate President Ronald Reagan, and against Jeffrey MacDonald, the Green Beret Army surgeon who was convicted of murdering his wife and children and became the subject of a well-known book called Fatal Vision. The Inspector General determined that Malone not only testified falsely in several criminal trials, but also testified falsely before Congress during the impeachment proceedings against then-Judge Alcee Hastings.

Consequences of DOJ and FBI Failures

The report makes for some disturbing reading. First, the report concluded that the department failed to adequately staff the task force and that the FBI did not treat this as a sufficiently high priority. Second, the task force did not do an adequate job of prioritizing cases involving defendants on death row. It took the FBI almost five years to identify 64 capital cases in which one of these 13 examiners was involved.[15]

By that time, one of the defendants had died of natural causes while awaiting execution. The prosecutor in that case stated that Michael Malone’s testimony, which was determined to have been scientifically inaccurate, exaggerated, and unreliable, was instrumental in obtaining that conviction. Three of the defendants had already been executed, although the examiners in two of those cases did not find any positive link between the defendants and the crimes for which they were convicted and executed, so their involvement in those cases was irrelevant.

That was not the case, however, with respect to the third defendant. In that case, not only did Michael Malone testify for the prosecution and provide evidence that was “overstated” and “without scientific basis,” but the prosecutor informed the IG that but for Malone’s testimony, the defendant would not have been convicted of a capital offense that rendered him eligible for the death penalty.[16] If that doesn’t send a chill up your spine, nothing will.

The department also failed to prioritize its review of other, non-capital cases handled by Michael Malone. Three other defendants whose convictions hinged on Malone’s testimony were completely exonerated. Each of the three had already spent over 21 years behind bars. And several other defendants have had their convictions overturned because of Malone’s testimony.

Of the 7,609 cases that the FBI identified in which one of these 13 examiners had testified, only 338 were sent for review to independent scientists—in many cases, years later—and of those, only 312 were actually reviewed.[17] Moreover, that review consisted of only a “paper review” of the examiner’s work and testimony, not a reexamination of the actual physical evidence from the case. Suffice it to say, this was an inherently limited process.

The report further concluded that the department failed to ensure that prosecutors made appropriate and timely disclosures to counsel for the affected defendants. In some cases, it was affirmatively established that prosecutors had not made timely disclosures or any disclosures at all to defense counsel.

According to the IG, this process “devalued the liberty of and collateral consequences potentially suffered by the defendants in these cases whose convictions may have been supported by unreliable FBI Lab analysis or testimony.”[18] Absolutely! The department’s failure to examine all of these cases in a thorough and timely manner or to provide proper guidance to prosecutors displayed a shocking indifference that only perpetuated and exacerbated this injustice.

Perhaps embarrassed by this report, the FBI has now picked up the pace, and what have they discovered? Of the 28 examiners in the FBI Laboratory’s microscopic hair comparison unit, 26 of them overstated forensic matches in ways that favored the prosecution in over 95 percent of the trials that have been reviewed.[19] Thirty-two of those defendants were sentenced to death, and 14 have been executed or died in prison. Many others have been exonerated.

The FBI has also acknowledged that until 2012, its hair examiners lacked written standards defining scientifically appropriate ways of explaining the results of forensic tests in court. I would add that many state examiners received their training from these same FBI examiners, and the FBI still has another 1,200 cases to review.

With respect to all of these examples, how could this have been allowed to happen in so many cases over such a long period of time? These scientists didn’t operate in a vacuum. Whether such problems occur as a result of improper training, inadequate oversight, or a lack of peer review of testing procedures and results, it is inexcusable.

Conclusion

Scientific evidence can be very powerful evidence. When properly employed, it can be a prosecutor’s ace in the hole.

But when forensics experts tamper with or fabricate evidence, utilize shoddy testing procedures, testify about areas outside their expertise, overstate the value of their testimony, or present unsupportable scientific conclusions in order to obtain a conviction, this will not only likely lead to an injustice in the particular case; it will also hasten the arrival of the day when judges and jurors no longer trust the government’s experts. That would be a dark day indeed, and if it happens, the government will have only itself to blame.

—John G. Malcolm is Director of and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. These remarks were originally presented as part of a panel discussion on “Prosecutors Run Amok?” at the 2016 Federalist Society National Convention.