to Reopen Crime Cases
Is Left to Individual Prosecutors
Laurie P. Cohen
at the Justice Department and the Federal Bureau of Investigation
are leaving it to individual prosecutors to decide whether to reopen
criminal cases in the wake of an internal report blasting the work
of the FBI crime lab.
disclosed in affidavits filed in federal court in Fayetteville,
N.C., earlier this week, was devised by a joint Justice Department-FBI
task force charged with reviewing cases involving 13 FBI crime-lab
examiners criticized in the report. The task force was formed after
Justice Department Inspector General Michael Bromwich released the
500-page report in April, saying FBI lab scientists gave inaccurate
testimony and produced scientifically flawed analyses in such high-profile
cases as the bombings of New York's World Trade Center and the Oklahoma
City federal building.
force's practice is already drawing criticism from defense lawyers
and at least one member of Congress. "The FBI has breached
the trust of the American people, but rather than come clean and
admit that FBI agents have fabricated and suppressed evidence, the
FBI and Justice Department have set up a system where the fox is
guarding the henhouse," said Rep. Robert Wexler (D., Fla.).
are the worst people to evaluate materiality of evidence,"
he said in an interview Wednesday. "They would be admitting
that their own conviction or guilty plea was based on faulty evidence."
spokeswoman declined to comment. A Justice Department spokesman
said a 1963 U.S. Supreme Court decision mandates that prosecutors
review their own cases.
the critical report was released, FBI and Justice officials said
prosecutors in about 50 criminal cases were notified of potential
problems. They said that while defense lawyers were informed in
about half these cases, so far none of the convictions seem to have
affidavit filed with the Fayetteville court, Kevin V. Di Gregory,
a deputy assistant attorney general who is supervising the task
force, said the group is now using a computer printout supplied
by the FBI to identify cases involving the 13 examiners criticized
in the inspector general's report. The task force will then determine
which of these FBI examinations led to convictions or guilty pleas
and then inform prosecutors, he said. The prosecutors will then
be asked to determine whether the FBI lab work was "material
to any such conviction" and, if so, to possibly retry the cases,
Charles E. Grassley (R., Iowa) has called for the Justice Department's
inspector general to conduct criminal inquiries into the work of
the 13 examiners cited in the report. But in an affidavit submitted
to the Fayetteville court this week, Mr. Bromwich said that "there
are no pending
investigations into allegations related to ... any of the 13 FBI
laboratory examiners criticized in the report."
were filed in connection with a bid for a new trial by lawyers for
Jeffrey R. MacDonald, the former Army surgeon who was convicted
of murdering his wife and two daughters. The lawyers allege that
courts denied an earlier effort to reopen his case on the basis
of allegedly false affidavits filed by FBI Agent Michael P. Malone,
one of the 13 crime lab examiners criticized in the inspector general's
who was the senior hair and fibers examiner in the FBI laboratory
until 1994, was the subject of a page-one article in The Wall Street
Journal in April. The article reviewed Mr. Malone's role in more
than a dozen cases, including Dr. MacDonald's, in which he was accused
of overstating the value of certain evidence and of providing inaccurate
testimony. Mr. Bromwich's report made no mention of Mr. Malone's
role in the MacDonald case.
lawyers have said that after the 1979 trial that resulted in his
conviction, they learned that synthetic blond fibers were found
at the crime scene. Dr. MacDonald believes these fibers came from
a wig worn by one of his family's assailants. Mr. Malone examined
the fibers in connection with Dr. MacDonald's 1990 bid for a new
trial and said they couldn't have come from a wig, a statement that
federal appeals court judges cited in denying Dr. MacDonald's bid
for a new trial.
are opposing Dr. MacDonald's latest effort to reopen his case. Mr.
Di Gregory says in his affidavit that the prosecutors handling this
litigation, including the one who originally tried the case in Fayetteville
in 1979 and who remains at the Justice Department, "have made
examination of the materiality of Agent Malone's findings and have
determined that they weren't material" to prior court rulings.
Silverglate, a lawyer for Dr. MacDonald, characterized the affidavits
as "damage control." He said, "Everytime an attack
has been filed, the Justice Department has assigned the [MacDonald]
case to the same prosecutors who have tried it and handled the appeal.
These people have a very strong interest in preventing their own
conduct from being examined."