Reviews of cases went nowhere
The reason: The process for investigating flawed cases is flawed. Florida cases get lost in a bureaucratic morass.
By SYDNEY P. FREEDBERG
© St. Petersburg Times, published March 5, 2001
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 Sloppy lab
work casts doubt on some Florida cases Part One: Fallout from an FBI Scandal -- Good cop, bad cop (March 5, 2001) |
She set in motion a procedure to flag prosecutions that might have been tainted by bad lab work so the defendants could get a chance for a new hearing.
U.S. prosecutors identified 3,000 federal and state cases, from burglaries to serial murders to white-collar crimes, with potential flaws. Two hundred and sixty-three of those federal and state cases came in Florida.
Yet almost nothing came of it.
Not one conviction has fallen anywhere in the country because of tainted FBI evidence.
Not one defendant has been freed.
Not one FBI lab examiner suspected of twisting scientific facts has been criminally charged.
And some of Florida's questionable cases have fallen into a bureaucratic black hole, a review by the St. Petersburg Times shows.
The key reason: The system for investigating flawed convictions was flawed.
• Defense lawyers, judges and watchdogs were usually shut out of the review process.
• Decisions were left to the same local prosecutors who had relied on questionable lab work to win convictions. Although those prosecutors were in the best position to expose flawed evidence, they also had a self-interest in preserving their convictions.
• Some prosecutors did an inadequate job of following up on possible forensic errors.
• When experts hired by the Justice Department found tainted evidence, local prosecutors sometimes sat on the information for months before disclosing it to defense attorneys.
Attorney General John Ashcroft has yet to say what, if anything, he will do about the review of FBI lab cases.
In the past, Reno's aides defended the review and dismissed the notion that it is stacked against defendants.
But critics say the procedures used were bad public policy and might violate defendants' right to a fair trial. They want the government to turn over the lab reviews to defense lawyers who handled the questionable cases.
"They're doing damage control to limit the depth of the problem," said Terri Backhus, a Tampa lawyer who represents a death row inmate convicted in part by sloppy lab work.
Time-consuming and costly
The federal review was triggered by an 18-month investigation by the Justice Department's former inspector general, Michael Bromwich. He found that 13 FBI examiners had made scientific errors in 18 of the bureau's biggest cases in recent years.
Reno created a task force to review other cases in which those same examiners analyzed evidence.
The task force identified 7,600 FBI lab exams performed in about 2,000 state and local cases and 1,000 federal cases. The exams covered everything from chemical analyses of smoke bombs to pieces of glass left at crime scenes.
Next, the task force sent copies of those lab reports, as well as the inspector general's report, to local prosecutors who had handled the cases.
They were asked to look at the new documents and decide if they were "material" to the conviction: Was there a "reasonable probability" that information known now would have led to a different outcome -- an acquittal or a lesser sentence?
Prosecutors have concluded that potentially faulty lab work compromised at least 126 convictions nationwide. The Justice Department won't disclose the names of those defendants or say in which county their cases were heard.
From the start, the review process in Florida was a morass -- time-consuming, costly and confusing to some local prosecutors.
Packets of case-review papers sometimes arrived from Washington addressed to prosecutors who no longer worked there.
The local case files, dating back 22 years, were sometimes missing or destroyed. Specimens that might have cleared defendants had been destroyed. Some defendants who might have been hurt by bad lab work had been released from prison. At least one -- a Pinellas County woman convicted at age 75 of vehicular homicide in 1980 -- was dead.
The review process
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| [AP photo] Janet Reno set in motion a procedure to flag prosecutions that might have been tainted by bad lab work so the defendants could get a chance for a new hearing. But almost nothing came of it. |
When the Times sought records under Florida's Public Records Law, prosecutors produced documents involving only about 75 defendants -- far fewer than the number of defendants who cases are potentially flawed.
The Palm Beach state attorney's office disclosed part of only one letter, saying it couldn't find the rest of the letter or any other records about case reviews. The Miami-Dade state attorney produced no records.
"This office has no tracking mechanism in place for researching this," said Donald R. Ungarait, the county's administrative assistant state attorney.
The available documents show that the local review process was mixed. It varied from county to county, prosecutor to prosecutor.
For starters, some prosecutors said they were confused about the meaning of "material" evidence.
In Broward County, documents show that prosecutor Ralph J. Ray Jr. changed his mind on the materiality issue three times during his review of the 1994 murder conviction of Paul Hamwi. The case is weak, and Hamwi, who was sentenced to life for having his ex-wife killed, has maintained his innocence since his arrest.
After thorough reviews, some prosecutors concluded that defendants were not hurt by potentially flawed evidence or testimony. There was plenty of other evidence, the prosecutors said, to find the defendants guilty.
Other reviews were more cursory.
In a Pinellas murder case, Assistant State Attorney Garry Potts wrote that a hair exam performed by FBI examiner Michael Malone was "inconclusive." Thus, it played no role in the conviction of Samuel H. Stevens, now 74, sentenced to life for beating, choking and smothering his wife to death with long strips of duct tape.
A review of the trial transcript shows Potts allowed Malone to give speculative, overstated testimony about a hair analysis, tailored in a way to make it look incriminating.
Potts acknowledges Malone's testimony helped win a conviction, but he says there was plenty of other evidence to win the case. Stevens never denied committing the murder but said he was drunk.
A 'big-time drain'
In Pinellas, about 30 cases have come under review, many involving work done by examiner Malone. A few of those reviews have taken more than a year to complete.
"This was a big-time drain to pick up all these old cases," said Doug Crow, Pinellas' executive assistant state attorney. "We tried to respond to every inquiry, but maybe we didn't do it as promptly as we'd like."
In some cases with potential flaws, prosecutors sought to brush off the Justice Department. In interviews, they explained that reviews of lab cases might delay justice for crime victims or block executions that were in the pipeline.
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But in his first week in office, new State Attorney Mark Ober reversed the old administration. He decided to notify every defendant and his or her lawyer that bad evidence might have been used.
"It's just the right thing to do," Ober said, adding that it is not his job to review the potentially tainted evidence. The decision, he said, should be made by someone "neutral" -- a judge who weighs the information after hearing from prosecutors and defense attorneys.
Under a Supreme Court ruling, Brady v. Maryland, defendants have a right to know every piece of "material" information that might help their case.
In most Florida cases, however, prosecutors kept the case-review reports to themselves.
After a long delay, Hillsborough prosecutors eventually notified three convicted murderers flawed evidence was in their cases. In Florida v. Jay Vernon Moss and Joseph Hayden Johnson, an Orange County murder case, Assistant State Attorney Chris Lerner wrote a memo to his boss saying he thought the case-review reports should be turned over to the defendants, even though Lerner didn't think FBI testimony was material to the convictions.
But Lerner's boss, William C. Vose, decided not to notify the defendants.
Other prosecutors, however, began rethinking their decisions to keep the reports from defense lawyers after the Times requested information about the potentially flawed cases. In Broward, for example, they immediately turned over paperwork to attorneys representing Hamwi, the convicted murderer.
And in Pinellas, prosecutor Crow said his office is weighing whether it, too, will track down all the defendants and hand over the lab information "and let them do with it what they want."
Bromwich, the former inspector general whose investigation prompted the broader review, is puzzled by the lack of fallout.
"I'm surprised that no convictions have been overturned," said Bromwich, now a private lawyer in Washington. "The number zero surprises me."