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FBI to alert courts to forensics problem

A criticized bullet analysis was abandoned, but not all defendants have known about it.

By Washington Post
Published November 18, 2007


WASHINGTON - Hundreds of defendants nationwide were convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by the Washington Post and 60 Minutes has found.

The science, known as comparative bullet-lead analysis, was first used after President John F. Kennedy's assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.

In 2004, however, the nation's most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI's testimony about the science "unreliable and potentially misleading." Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence."

A year later, the bureau abandoned the analysis.

"We cannot afford to be misleading to a jury," lab director Dwight Adams, now retired, wrote to FBI Director Robert Mueller III in a 2005 memo outlining why the bureau was abandoning the science. "We plan to discourage prosecutors from using our previous results in future prosecutions."

Despite those private concerns, the bureau told defense lawyers in a general letter dated Sept. 1, 2005, that although it was ending the technique, it "still firmly supports the scientific foundation of bullet lead analysis." And in at least two cases, the bureau has tried to help state prosecutors defend past convictions by using court filings that experts say are still misleading. The government has fought releasing the list of the estimated 2,500 cases over three decades in which it performed the analysis.

For the majority of affected prisoners, the typical two-to-four-year window to appeal their convictions based on new scientific evidence is closing.

In response to the information uncovered by the Washington Post and 60 Minutes, the FBI has initiated corrective actions including a nationwide review of all bullet-lead testimonies and notification to prosecutors so that the courts and prisoners can be alerted. The FBI lab also plans to create a system to monitor the accuracy of its scientific testimony.

The Washington Post and 60 Minutes investigation "has brought some serious concerns to our attention," said John Miller, assistant director of public affairs.

Current FBI managers said that they originally believed that the public release of the 2004 National Academy of Sciences report and the subsequent ending of the analysis generated enough publicity to give defense attorneys and their clients plenty of opportunities to appeal. The bureau also pointed out that it sent form letters to police agencies and umbrella groups for local prosecutors and criminal defense lawyers. The FBI said that the letters "should have been clearer."