April 20, 2012

KIRK L. ODOM was incarcerated for 20 years and Donald E. Gates for nearly 30 for crimes they did not commit. Santae A. Tribble spent 28 years behind bars, even though DNA evidence now shows he almost undoubtedly was not the culprit.

All of the men were erroneously convicted in the District, in part, on the basis of forensic evidence analyzed by the FBI. Problems within the FBI lab, particularly with hair-sample analysis, were well known to the agency and the Justice Department; a task force spent some nine years reviewing cases after a whistleblower revealed possible shortcomings.

In a series of articles, The Post’s Spencer S. Hsu and a team of reporters documented how the Justice Department failed to notify lawyers representing prisoners whose fate hinged on the FBI analysis. Some prisoners spent years behind bars before becoming aware of the lab issues.

The problem continues to this day. The full results of the Justice Department task force’s investigation have not been made public. Even when the task force discovered flaws in a case, the information was turned over only to prosecutors, who were then left to decide whether the results needed to be brought to the attention of defense lawyers. In addition, the task force reviewed only cases involving one FBI analyst whose work was called into question; The Post identified cases where other analysts’ work resulted in convictions of innocent defendants.

The FBI argues that hair-sample analysis — in which samples from a suspect are analyzed microscopically and compared with samples found on a victim or crime scene — is a vital and legitimate tool. Advances in DNA testing, which allows for genetic analysis of evidence, “should not be perceived as diminishing the value of prior practices and testimonies,” according to an FBI statement. Administration law enforcement officials say that all hair samples collected after 1996 have been subjected to DNA testing, when possible; they point out that such testing is sometimes off limits because of the size or condition of the sample. “In cases where microscopic hair exams conducted by the FBI resulted in a conviction, the FBI is evaluating whether additional review is warranted,” the statement said.

This does not go far enough. The agency should not be considering “whether additional review is warranted” but how such a review should be conducted; members of the defense bar should be part of these discussions. Any review should, as a start, include DNA testing of hair samples in all cases that ended in conviction — regardless of which analyst performed the work — for which the defendant is still imprisoned or on parole. The Justice Department should make its task force results public; if such broad disclosure presents privacy or security problems, the department should at least make all FBI forensic analysis and task force material available to defense lawyers.

The failings documented by The Post point to the need for better scientific standards in forensic testing and a more open process for the disclosure of evidence and information in criminal proceedings. Sen. Jay Rockefeller (D-W.Va.) is weighing legislation to expand the role of the National Science Foundation and the National Institute of Standards and Technology to set such standards.

Congress also should change the law regarding discovery. Prosecutors should not be deciding which pieces of evidence seem exculpatory and must be turned over to the defense. They should be required to open their files to defense lawyers, with exceptions for witness protection or national security.