Tainting Evidence: Behind the Scandals at the FBI Crime Lab.
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert qualified by "knowledge, skill, experience, training, or education" can give an opinion. So say our rules of evidence. This opens the courtroom door to opinions from experts about, say, whether a defendant left his DNA on the bloody pavement, his John Hancock on a ransom note, or his senses before he committed the crime.
But what happens when experts aren't what they claim to be? That's the question posed in this book. The subject is the "forensic science" experts of the FBI crime labs: agents who specialize in things like trace analysis, ballistics, bomb reconstruction, even psychological profiling. The FBI has long enjoyed a reputation for solving crimes too slick for the local constabulary. But what did the feds know that the locals didn't? Not much, say the authors, who, as their title suggests, posit that the FBI was solving crimes by "tainting evidence" in its fabled crime lab. The result was phony evidence cooked up by pretend experts who were really just G-men in lab coats.
According to the authors, in 1996 the FBI lab staff of 694 handled 136,629 pieces of evidence and performed nearly 700,000 examinations. While screw-ups are not unique to the FBI (one county coroner, for example, lost a head), they were apparently endemic The problems ranged from the occasional "rogue" agent who made up credentials and tests, such as Special Agent Thomas Curran, who in 1974 lied about his degrees and the tests he had done, to more prosaic flaws in lab procedure. Without accepted standards and protocols to guide them, the bureau's men and women of science didn't document their work, didn't identify who did what, didn't do confirmatory testing, didn't sign, date, seal, and the like.
All of which was compounded by the pressure to make cases in court. Agents were not scrupulous in their science because, say the authors, they wanted to make the conclusions come out the right way and were loath to create paperwork that might undermine those conclusions. When they got to the witness stand, they often fudged the limits of their work, in effect painted over the gray with strong coats of rhetorical black. "Could have been" was transformed to "was," possibility became probability. The bureau hid this sorcery from the prying eyes of outside scientists.
Kelly and Wearne's account of these mishaps is both good and original. But as Samuel Johnson once observed, the part that is good is not original, and the part that is original is not good. The mind-numbing recitation of instances in which lab chemists didn't keep good bench notes, bickered over standards and protocols, or gave unconvincing trial testimony because they were trying too hard to help the home team, is by this point old news. The sloppy practices and procedures have been under the hot lights before Congress and a detailed investigation by the Justice Department's Inspector General (mined to good effect by the authors). The FBI has, for the most part, confessed and vowed to straighten out the lab. That story is told here again, and convincingly.
But what's new? For that we have a more sinister tale about supposed efforts to frame innocent men by unprincipled zealots masquerading as forensic scientists. That FBI agents are not disinterested scientists, but rather have a pro-prosecution bent, will not surprise any in the world of law enforcement. It is the authors' claim that the bureau's lab was stocked with Inspector Javerts, bound at any cost to get their man, rather than humbling Clouseaus, that goes beyond the routine lab flogging that has emerged to date.
What's the proof? We begin with the book's protagonist and number one source, FBI chemist Frederic Whitehurst (to whom the book is dedicated). Whitehurst is portrayed, not surprisingly, as a star agent of courage and conscience, a "brawny six-foot-two-inch" Vietnam vet, "[p]edantic, methodical, straight as an arrow." His complaints about unsound practices in the FBI lab seem well-founded, and his critiques of the work of his colleagues may be correct. But even in the one-sided telling, there are hints that Whitehurst is, well, something of a nut. When others failed his standards -- even where he personally had confirmed the lab's conclusions -- he decided to sabotage the prosecution by going secretly to work for the defense. As the authors note, "It was a strange case for which to break all the rules and risk his career."
Whitehurst's efforts at martyrdom might make sense if, say, he was preventing the execution of innocent people on the strength of fake evidence. But in substantial part he appears to have been expressing a fastidious revulsion at the Pigpen practices of his fellow chemists. When the authors hold their magnifying glass to the FBI's scientific work, they find no case in which the lab concocted false evidence and thereby secured the conviction of an innocent person.
Perhaps that's because their examples were picked for their high profile rather than their reliance on fake forensic proof. Take Ted Kaczynski, the "Unabomber" seized in his shack in the midst of bomb supplies and written records amounting to a confession. It's hard to make the case that he was framed, and indeed the point seems to be that better forensic science would have found and stopped him more promptly. In other celebrated cases the authors rehash the evidence but make no convincing claim that an injustice was done.
The most interesting example may be the prosecution of Walter Leroy Moody, twice-convicted of the mail-bomb murder of federal judge Robert Vance. The authors claim Moody's first trial was tainted by phony forensic science. The bureau erred by honing in on Moody based on one of his prior bombs. As Whiteburst could have told them, that bomb was not identical to the Vance bomb. And it hadn't been conclusively proved that Moody had built the prior bomb; he'd only been convicted of possessing it. They hadn't even found bomb ingredients in Moody's house. According to the book, the bomb comparisons were highly subjective, prosecution-oriented pseudo-science.
Yet all of this and more was pointed out in detail by Moody's lawyer. There was no shortage of cross-examination on the basis or lack of basis for the experts' conclusions. In the end, the jury convicted Roy Moody. And while one suspects that the full story of the trial is left untold, enough is hinted about the evidence to understand why quibbling over bomb "signature" was unlikely to spring Roy Moody. For instance, there was the wiretap tape that had him muttering about having "killed two.... Now you can't pull another bombing." And there was his wife, the bombardier's assistant (she kept receipts when she went out, "in disguise, pay[ing] cash, wear [ing] gloves," and parked away from the stores to buy his boxes, tapes, string, wire, solder, rubber gloves, etc.). And his friend, Ted Banks, who testified that he had cut pipes (as in pipe bomb) and acquired gunpowder for Moody.
The Moody trial proves nothing about junk science in the courtroom, much less FBI complicity in "tainting evidence" The limitations on the expert testimony were there for the jury to see. The authors' -- and Moody's -- real beef is with the defense attorney, Mr. Tolley, who in their view was insufficiently zealous in his rooting out of the heresy. But they fail to show any respect in which Tolley failed to provide appropriate representation. His decision not to call defense experts is hard to challenge, based on the apparent success of the defense cross-examination of the government experts. His choice to stipulate to certain summary testimony from a single FBI agent, rather than require squads of agents to take the stand, cannot fairly be criticized based on the limited evidence provided. The barely veiled suggestion that Tolley "acquiesced" in his client's conviction -- threw the case -- is unfounded and unfair.
Ironically, this is precisely the kind of overstepping for which the authors chide the FBI lab. But perhaps it's human nature. Authors attempting to make a persuasive case, agents trying to bring the guilty (in their view) to justice, all have the motive to reach for conclusions that may or not be supported. Juries are properly instructed to be on their guard, and to look for the support behind the conclusions. Experts should not be and typically are not permitted to cloak themselves and their conclusions in mystery.
To be fair, there appears to have been much Mr. Whitehurst could and would have done better in some of the cases described. The book becomes tendentious, however, in its single-minded focus on "forensic science" to the exclusion of almost all else. Grant that the science offered by the prosecution in some or even all of these cases was deeply flawed -- call it utter junk. The issue is whether the evidence in the cases, all the evidence, was sufficient to convince the jury of guilt beyond a reasonable doubt. On that critical point the book has little to tell us.
Mark C. Hansen, a Washington-based lawyer, is a former federal prosecutor