Examiner Targeted African-Americans
Washington, DC (November 25, 1997) -- The Justice Department's Office of Inspector General, which conducted an 18-month investigation of the FBI lab, has been on notice of problems in the FBI's DNA analysis unit (DNAU) since as far back as December 1995, the National Association of Criminal Defense Lawyers announced today. "Investigators from the Inspector General's Office interviewed dozens of FBI agents during the course of their 18-month investigation," NACDL President Gerald B. Lefcourt noted. "During that time, they turned up evidence that the prevailing culture of the lab -- which one agent likens to a "fraternity" -- is a 'shoot from the hip' culture favoring the prosecution, rather than a culture of objective science, and honest search for the truth."
U.S. Department of Justice documents obtained by NACDL identify numerous examples of questionable practices in the DNA Unit. Among them:
- Plastic pipettes were used to extract DNA which had been dissolved in chloroform. However, chloroform also dissolves plastic pipettes, which could contaminate the sample.
- Quantities of DNA placed in the testing gel to study band patterns were not measured properly. Amounts too large could cause problems in analysis.
- Examiners commonly overexposed autoradiographs so that DNA bands appeared football-shaped rather than as a line. This makes it difficult for an examiner to accurately locate the center of a band for analysis. Some examiners would then manually move a band for analysis, which could cause a misreading.
- Regarding the problem known as "band-shifting," in which the bands from supposedly identical DNA samples do not match exactly for technical reasons, the FBI's Laboratory Division accepted a 2-2.3 percent variation in band matches. This can lead to erroneous "matches."
One scientist who formerly worked in the DNA Unit also had concerns about the FBI's limited database of known DNA samples, which is a key component of the FBI's 'landmark' new policy, announced by recently-installed FBI Lab Director Donald M. Kerr two weeks ago. This problem, which eventually should be surmountable, was also addressed in the May 1996 National Research Council Report, The Evaluation of Forensic DNA Evidence, which recommends making a conservative estimate of the statistical likelihood of a match. Instead, the FBI now wants to be able to state to a "scientific certainty" that two DNA samples match. This is an assertion no other forensic DNA laboratory would dare make -- because there are no certainties in science, only probabilities.
Moreover, such testimony directly violates the laws of evidence in many states, which prohibit an expert witness from stating an opinion on a ultimate fact in issue -- namely, the guilt of a criminal defendant. It is the job of the jury to decide guilt or innocence, not a "13th juror"demonstrating bias in favor of the prosecution, as documented by the OIG report on the FBI Lab released last spring.
According to another document released by NACDL today, in April or May 1989, all DNA/serology examiners in the DNA Unit (except possibly one) failed an open serology proficiency test. (An "open" test is one in which the examiner knows he is being tested, as opposed to a "blind" test, in which the examiner does not know he is being tested.) A supervisor discarded the test results because, according to an FBI agent in the lab, "he feared they would be discoverable" by defense lawyers. The test was re-administered and all examiners passed.
In another document, FBI special agent Alan Robillard, identified as a former DNAU Unit Chief, admits he ordered the results of the proficiency test destroyed, but claims that "everyone" in the unit failed because "the test itself was flawed." Whether or not his assertion is true, destruction of the test results amounts to the withholding of exculpatory evidence from countless cases involving citizens accused of crimes. And the now-established fact that the test results were destroyed, for whatever reason, is also exculpatory information which by law should be turned over to the defense in every DNA case involving the FBI.
That same examiner who witnessed destruction of the proficiency test results also stated to Justice Department investigators that there was a DNA lab technician or examiner -- to quote from a DOJ document released today -- "who would determine if suspects were Afro-Americans. If so, he would manipulate test results to prove guilt." Reportedly, that examiner was terminated, but the OIG apparently did not proceed to learn which cases were corrupted by the examiner's malfeasance and racial bigotry; indeed, the Inspector General's office apparently did not even bother to learn the agent's name.
"Perhaps there were good reasons at the time why such leads were not followed up by OIG investigators and not made a part of the OIG's final report on the FBI Lab. It is possible they were part of the original 'draft' report still not publically released. But there is no good reason now for not fully investigating the DNA Unit, particularly if the FBI wants to claim infallibility and 'perfect' matches in court, when the lives and liberty of American citizens are at stake," Lefcourt concluded.
Both the full text of Mr. Lefcourt's remarks and the Inspector General's report, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April 1997), are available by clicking on the appropriate buttons below.
Mr. Gerald B. Lefcourt's remarks are here.
The Inspector General's report, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April 1997) is here.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.