Monday, Nov. 19, at noon ET

Silent Injustice

John Solomon
Staff Writer, The Washington Post
Monday, November 19, 2007; 12:00 PM

At noon ET on Monday, Nov. 19 Washington Post staff writer John Solomon responded to reader questions and comments about "Silent Injustice" his 6-month investigation with 60 MINUTES correspondent Steve Kroft into a flawed science used in the convictions of thousands of defendants, scores of whom may be innocent.

To keep up to date on the latest investigation news and projects in the Post, read the Washington Post Investigations blog.


John Solomon: Folks, thanks for your interest in this project. I'm looking forward to spending the next hour or so answering your questions.


Fredericksburg ,Va.: Hi John. Great work.

1. You worked with several groups and one other news agency for this series. Can you walk us through how you first got involved, and how you were able to connect with 60 Minutes and the other groups to work together on this series? Did someone basically provide you the foundation for the story and you pieced it together?

John Solomon: Absolutely. I had written extensively on FBI lab problems in the 1990s and earlier this decade. And I had worked for the last several years with some groups to pursue Freedom of Information Act requests seeking documents about how the FBI was handling the end of its bullet lead science. When the bureau announced the end of the science, it had claimed publicly that it remained confident in the "scientific foundation" of its past work. But when we started to get internal emails and documents under FOIA and from sources, we realized the bureau was aware that large numbers of its scientists had given testimony that was inaccurate and not supported by science. And that is what got us started. We began by reviewing trial transcripts and finding cases where the now-discredited bullet lead science had been a crucial piece of the prosecution's evidence. As for 60 Minutes, I had been talking with producers there for about a year about possible collaborations and this project just made sense. It had strong visual elements and characters to go along with a compelling issue of justice and fairness.


Washington, D.C.: Do you think that laboratories are resistant to change that would help weed out bad science, such as more oversight, blind testing, or redundant independent testing?

John Solomon: This is a good question, which is resonating in courts around the country as defense lawyers begin to identify flaws in many local crime labs work. While it is hard to make sweeping conclusions, the internal FBI documents we obtained provided some fascinating insight into why the FBI was so slow to end the science in the face of questions. As early as 1991, the FBI lab had done a study that raised questions about some of the assumptions being made about lead bullet matches. But rather than seeing the red flags, the scientists dismissed them as coincidences. In 2002 when one of the FBI's own retired metallurgist questioned the science, the FBI sought to drown out his concerns by flooding the forensic science journals with articles praising the bullet lead science. And even after the National Academy of Sciences concluded the science was flawed in both its statistics and testimony, many in the lab fought to continue its use or at least to minimize the problems when informing the public. When asked why, FBI officials told us that it was hard for scientists who practiced a particular science for decades in good faith to admit they were wrong. What should not have been so hard, the FBI officials said, was for the lab to do the right thing and to review all cases were misleading testimony was given. That didn't happen back in 2005. But now that these are issues are public, the FBi has belatedly agreed to do that.


Washington, D.C.: Mr. Solomon,

Have you found a difference in the way courts are handling these appeals in jurisdictions that have the death penalty as opposed to those that do not?

Thank you.

John Solomon: We did not see any difference. The states where convictions were reversed because of bullet lead were split between death penalty and non-death penalty states. More noticeable was the difference in opinion between the trial courts and the appeals courts. The trial courts were more likely to uphold the original convictions that had occurred in their courts, claiming their was other evidence to support a conviction. The appeals courts were more likely to reverse convictions, citing the broader legal principle of fairness. Last year in Maryland, a murder conviction based on fairly strong evidence was reversed at the appellate level on the grounds that bullet lead matching was no longer considered generally accepted science. Most states have a requirement that forensic science be generally accepted as accurate before it can be used in courts. I suspect that if more convictions are reversed, they will be based on that concern.


What's next?: Will you follow this with more stories/investigations on this issue?

John Solomon: We have some additional stories coming out in the next month as part of this series. So stayed tuned. Also, we are committed to following the developments in the cases and events that these first two stories raised. The FBI is taking the fairly dramatic step of launching a nationwide review of cases. We'll be following that closely to see how often defendants have been alerted to prior flawed testimony. Also, we will be watching to see how the bureau implements a new monitoring system designed to routinely check the accuracy of its scientists' court testimonies.


Richmond, Va.: I think it was prosecutors, not scientists, who held back concerns about the accuracy.

John Solomon: This is a question that courts often have to weigh. In the cases we reviewed, we did not find much evidence that prosecutors knew during the original trials that the FBI science was flawed. For three decades it was simply assumed to be accurate. But we did see a couple of cases where prosecutors have tried to sustain old convictions by trying to defend the science even though it is now widely accepted that the science was flawed. The most interesting development to watch going forward is to see how prosecutors react when they get notified by the FBI about bad testimony in prior cases. We'll be watching to see if those prosecutors actually follow through on their obligation to notify the affected courts and defendants.


Leesburg, Va.: John,

I wrote a series of articles a few years ago on the state of indigent defense in Virginia. I think the problems here stretch throughout the country. Do you have any evidence that indigent defense attorneys knew about this faulty testing, but never followed up on it for their clients because of the heavy workloads and low fee schedules in most states?

John Solomon: Many of the cases did involve defendants represented by public defenders. But the most noticeable thing I saw going through the transcripts was that defense lawyers in general _ whether privately paid or appointed by the courts _ paid enormous deference to the FBI witnesses and did little to challenge their scientific conclusions in the 1980s and 1990s. Famed defense attorney Barry Scheck told me that one of the lessons from the bullet lead saga is that defense attorneys must do more "homework" studying scientific issues so they are better prepared to challenge prosecutors' experts in the CSI era where most jurors are more likely to give enormous weight to forensic science.


Burke, Va.: Do you ever consider the practical matter of how many murderers are put behind bars because of "faulty" science?

Is it progress to prevent one innocent person from being convicted if you let ten guilty people go free? How about a hundred? A thousand?

There's an obvious cost to convicting the innocent; but there's just as real a cost in allowing the guilty to go free.

John Solomon: The U.S. justice system relies on fairness and it has a built in process for how to handle post-conviction appeals to address the very concerns you raise. Convicted murderers usually don't just go free when a new trial is ordered. They usually are held on bail or remanded to prison until a new trial occurs. So there won't be a whole lot of convicts being freed. But there could be some that are granted new trials. That means they get another chance to prove their innocence because their last trial was unfairly impacted by bad science. That's hardly as threatening as some mass release of murderers. In New Jersey, Michael Behn was one of the first murder defendants to be granted a new trial because of bullet lead. And last year he was re-convicted using other evidence. The system has plenty of experience and safeguards to handle the review that is about to begin.


Maryville, Tenn.: No question, but I would like to mention one case that I am currently handling in the Tennessee Court system. Asata Lowe vs. State of Tennessee. I handled the Post Conviction Petition and it is pending before the Tennessee Court of Criminal Appeals. Even though I raised the issue of the FBI expert's improper testimony (she has since been convicted in KY for "False Swearing") the trial court refused to allow me to have an expert to contest the evidence due to the Tennessee Supreme Court rules which prohibit state funds being used for an expert in a post conviction hearing (he, obviously, could have had an expert if he had the money).

John Solomon: This sounds like an interesting case and the very type of circumstance the National Association of Criminal Defense Lawyers and the Innocence Network had in mind when they announced Sunday that they are forming a joint task force to help defendants affected by this science. I bet they might be able to help find some resources to address your questions. In the meantime, I'd love to learn more about the case if you are willing to drop me an email with the details.


Washington, D.C.: Lead comparisons may be only one of many questionable techniques that erroneously link suspects to crime scenes. The Mayfield case that linked an innocent person to the Madrid bombings showed that a fingerprint could lead the FBI to the wrong person. Given that the FBI has had to give up lead comparisons, are they planning to do anything to make sure their other forensic methods are reliable?

John Solomon: An outstanding question. One of the most dramatic outcomes from the Silent Injustice series is that the FBI has agreed to institute a new monitoring system that will routinely check the accuracy of its experts' testimonies in court. One of the things the FBI is thinking about is dispatching a supervisor unannounced once a year to watch each of his or her scientists testify live in court. If that system gets fully implemented, it would become one of the most significant new safeguards against bad science and testimony in the court system. Barry Scheck said the FBI's proposed new monitoring system could become a "gold standard" that other local crime labs could adopt to ensure similar protections at the state level.


Richmond, Va.:"John Solomon: Last year in Maryland, a murder conviction based on fairly strong evidence was reversed at the appellate level on the grounds that bullet lead matching was no longer considered generally accepted science."

Will you be doing a follow up story about how many convictions are reversed based on these results and what percentage of the reversals were most likely "innocent" or "guilty" of the original charges based on the strength of the other evidence?

John Solomon: Yes, we do plan to keep watching this play out in the courts. The entire process is likely to take two to five years, according to the experts we've talked to. I'd also recommend checking back at the Web site next month for the next round of stories, which will shed some new light on how this process works.


Washington, D.C.: One thing that strikes me about these cases is that bad judges and bad prosecutors could stand in the way of efforts to get back into court and retry the case. This seems like an area in which some prisoners would have to seek executive clemency. Other than that long shot, what other options exist when a person has a good case, but a judge or prosecutor block the path back into court? Is there anything state legislatures or Congress can do about these scenarios?

John Solomon: There is one interesting development to watch in North Carolina, the state where Lee Wayne Hunt has been unable to win a new trial despite significant new evidence of innocence. The state legislature is working to create a new "Innocence Commission" that would give defendants one last resort to appeal their convictions _ even if they lost in the courts. Outside of the courts, sometimes compelling cases can generate political pressure. And that can force an examination by a state governor, who can commute a prison sentence as a way of freeing a person who has significant new evidence of innocence.


Washington, D.C.: Has it been determined that the bullet lead analysis has no meaningful correlation? Or, is it that the correlation is there (say, 80% to 90%) but not strong enough to be beyond a "reasonable doubt" and therefore not admissable?

John Solomon: The National Academy of Sciences concluded that the science was so limited that all an FBI witness could say about two bullets that matched was that it was possible they were made from the same batch of lead, along with as many as 35 million other twins. The FBI decided that was so general a statement that it would have no value to jurors.


Oxon Hill, Md.: What is the best method to get a case reviewed?

John Solomon: In most states, the process begins with a post-conviction review petition that a defendant files with the orignal trial court asking it to order a new trial based on new evidence. If the court turns it down, the defendant can next go to the appeals court or the state supreme court. If a defendant exhausts all avenue of appeals in a state, he or she still can seek a habeas review in the federal courts. If all courts at all levels turn down a defendant, the last avenue is a political solution: seeking a commutation, grant of clemency or pardon from a governor or the president.


John Solomon: Thanks for all the great questions and observations. I look forward to chatting with you again and promise to stay on top of developments in this story.


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