Assessment of the 1996 DOJ Review of the FBI Laboratory

Assessment of the 1996 DOJ Review of the FBI Laboratory

• July 1, 2014 • Locations: United States of America • Topics: DNA Testing/Samples, Crime Labs

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An Assessment of the 1996

Department of Justice Task Force

Review of the FBI Laboratory

U.S. Department of Justice
Office of the Inspector General
July 2014

EXECUTIVE SUMMARY1
This is the third review by the Office of the Inspector General (OIG)
since 1997 related to alleged irregularities by the Federal Bureau of
Investigation (FBI) Laboratory (Lab).2 The first two OIG reports focused on
alleged FBI Lab deficiencies, the conduct of individuals brought to our
attention by a whistleblower, and remedial actions the FBI took in response
to our recommendations. This report addresses how the Criminal Division
Task Force (Task Force), created by the Department in 1996 and whose
mission was redefined in 1997, managed the identification, review, and
follow-up of cases involving the use of scientifically unsupportable analysis
and overstated testimony by FBI Lab examiners in criminal prosecutions.
We analyzed the Task Force’s review of cases involving 13 FBI examiners the
Task Force determined had been criticized in the 1997 OIG report. We
included in our review a close examination of cases handled by 1 of the
13 examiners, Michael Malone, the Lab’s Hairs and Fibers Unit examiner
whose conduct was particularly problematic.
Although the Task Force made a diligent effort to manage a complex
review of thousands of cases, we found the following serious deficiencies in
the Department’s and the FBI’s design, implementation, and overall
management of the case review process.
First, despite some effort by the Task Force to segregate for priority
treatment cases involving defendants on death row, the Department and the
FBI did not take sufficient steps to ensure that the capital cases were the
Task Force’s top priority. We found that it took the FBI almost 5 years to
identify the 64 defendants on death row whose cases involved analyses or
testimony by 1 or more of the 13 examiners. The Department did not notify
state authorities that convictions of capital defendants could be affected by
involvement of any of the 13 criticized examiners. Therefore, state
authorities had no basis to consider delaying scheduled executions.

Department of Justice Inspector General Michael E. Horowitz recused himself
from this review because he occupied senior management positions within the Criminal
Division from 1999 through 2002. We did not interview Mr. Horowitz or review his conduct
because of the inherent conflict for this office to evaluate the role of the Inspector General.
Although auditing standards are not applicable to this review, which is not an audit, they
provided useful guidance on this issue. See Generally Accepted Government Auditing
Standards (December 2011).
1

U.S. Department of Justice Office of the Inspector General, The FBI Laboratory:
An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and
Other Cases (April 1997) and The FBI Laboratory One Year Later: A Follow-Up to the
Inspector General’s April 1997 Report on FBI Laboratory Practices and Alleged Misconduct in
Explosives-Related and Other Cases (June 1998).
2

As a result, one defendant (Benjamin H. Boyle) was executed 4 days
after the 1997 OIG report was published but before his case was identified
and reviewed by the Task Force. The prosecutor deemed the Lab analysis
and testimony in that case material to the defendant’s conviction. An
independent scientist who later reviewed the case found the FBI Lab
analysis to be scientifically unsupportable and the testimony overstated and
incorrect. Two other capital defendants were executed (Michael Lockhart in
1997 and Gerald E. Stano in 1998) 2 months and 7 months, respectively,
before their cases were identified for Task Force review as cases involving
1 or more of the 13 examiners. Although we found no indication in the Task
Force files that the Lab analyses or examiners’ testimony were deemed
material to the defendants’ convictions in these cases and, according to the
FBI, the OIG-criticized examiner found no positive associations linking
Lockhart or Stano to the crimes for which they were convicted and executed,
the Task Force did not learn this critical information before the executions
so that appropriate steps could have been taken had the analyses or
testimony been material to the convictions and unreliable.
Another capital defendant (Joseph Young) died in prison of natural
causes in 1996 before the 1997 OIG report was published. However, the
Task Force did not refer his case to the FBI for review by an independent
scientist even though the prosecutor had deemed the FBI Lab analysis and
testimony to be material to the conviction. It is not known whether the
outcome of this defendant’s trial or his sentence would have been different
without the examiner’s testimony, which in other cases was deemed
scientifically inaccurate, exaggerated, and unreliable. In all, the Task Force
referred only 8 of the 64 death penalty cases involving the criticized
examiners for review by an independent scientist. We found evidence that
the independent scientists’ reports were forwarded to capital defendants in
only two cases. The Department should have handled all death penalty
cases with greater priority and urgency.
Second, we concluded that the Department should have directed the
Task Force to review all cases involving Michael Malone, the FBI Lab
examiner whose misconduct was identified in the OIG’s 1997 report and
who was known by the Task Force as early as 1999 to be consistently
problematic. Malone’s faulty analysis and scientifically unsupportable
testimony contributed to the conviction of an innocent defendant (Gates),
who was exonerated 27 years later, and the reversal of at least five other
defendants’ convictions because of Malone’s unreliable analysis and
testimony. Malone retired from the FBI in 1999, but we learned, and the
FBI confirmed, in May 2014 that Malone had been performing background
investigations as an active contract employee of the FBI since 2002. After
we brought Malone’s contract employment to the attention of the FBI and
the Department, the FBI reported that, effective June 17, 2014, Malone’s
association with the FBI was terminated.
ii

Third, while we recognize that resource management is an appropriate
consideration in the Department’s decision-making, we found that
categories of cases were inappropriately eliminated from the Task Force’s
scope, including most cases that pre-dated 1985, to reduce its work to a
more manageable level. The decision not to review these categories of cases
devalued the liberty of and collateral consequences potentially suffered by
the defendants in these cases whose convictions may have been supported
by unreliable FBI Lab analysis or testimony. In our view, the Department
fell short of the Task Force’s articulated mission to ensure that defendants’
rights were not jeopardized by the conduct of any of the 13 examiners when
it excluded categories of cases from the Task Force’s review.
Fourth, we concluded that the Department failed to ensure that
prosecutors made appropriate and timely disclosures to affected defendants,
particularly in cases where the prosecutor determined that Lab analysis or
testimony was material to the conviction and the report of the independent
scientists established that such evidence was unreliable. Some federal and
state prosecutors failed to disclose the independent scientists’ reports or did
so months or years after they received them from the Task Force. As a
result, some defendants learned very late – or perhaps never – that their
convictions may have been tainted. The Department should have required
federal prosecutors, and strongly encouraged state prosecutors, to disclose
the independent scientists’ reports to defendants when the reports
concluded that material Lab evidence was unreliable.
Fifth, we found that the Department failed to staff the Task Force with
sufficient personnel to implement a case review of the magnitude it
undertook. We also concluded that the FBI did not consistently maintain
the project as a sufficiently high priority, as reflected by the irregular
staffing it committed and its manner of hiring and managing independent
scientists to review the work of the Lab examiners. In our view, 8 years was
much too long for the Task Force and the FBI to complete the case reviews.
The delays had significant consequences for individual defendants’ cases.
Lastly, we found that the Department failed to require prosecutors to
notify the Task Force of their disclosure determinations to enable the Task
Force to track disclosures of independent reports to affected defendants.
We found evidence that the prosecutors disclosed the reports in only 13 of
the 402 case files we reviewed. As a result of the Department’s failure to
incorporate a tracking component in the case review process, the Task Force
was unable to determine whether effective notification to defendants or their
counsel had been achieved. In addition, the Task Force’s communications
to prosecutors did not emphasize the importance of acting swiftly to disclose
the reports, particularly in death penalty cases.

iii

In this report, we make five recommendations to the Department and
the FBI regarding additional review of and notification to defendants whose
convictions may have been tainted by unreliable scientific analyses and
testimony. We also note that almost all of the problems we identified with
the Department’s and the FBI’s design and management of the FBI Lab case
review occurred long ago and most of the employees responsible for the
review have left the Department or the FBI. During the course of this
review, we provided the Department and the FBI with information about
certain defendants – including all capital cases and all cases reviewed by
independent scientists – so that the Department could take immediate
action to ensure these defendants received appropriate notice of the
possibility that their convictions were supported by unreliable evidence.
The Department and the FBI have worked cooperatively with us to expedite
potentially remedial action.

TABLE OF CONTENTS

CHAPTER ONE: INTRODUCTION................................................................ 1

II.

Background ...................................................................................... 1

OIG Investigation of Whitehurst Allegations, 1994–1997 .......... 2

Criminal Division Task Force ................................................... 4

Defendants Whose Convictions Were Tainted by Unreliable Lab

Analysis or Testimony .............................................................. 5

This Review ....................................................................................... 6

CHAPTER TWO: TASK FORCE CASE REVIEW PROCESS............................ 9

Overview ........................................................................................... 9

II.

Key Participants in the Case Review Process ................................... 11

III.

Case Review Process in Detail ......................................................... 14

Review Scope and Case Identification Process ........................ 14

Materiality Determinations by Prosecutors............................. 20

Referrals for Review by Independent Scientists ...................... 23

Review by Independent Scientists .......................................... 24

CHAPTER THREE: INDEPENDENT SCIENTISTS’ REVIEWS

AND REPORTS................................................................................ 30

II.

Timeliness of Independent Scientists’ Reviews ................................. 30

Difficulties in Retaining Experts............................................. 31

Too Little Time Allotted for the Scientists to Conduct Reviews 33

Delays Caused by Batching ................................................... 36

Transmissions of Scientists’ Reports ............................................... 39

Transmissions from FBI to Task Force Not Timely .................. 39

Transmissions from Task Force to Prosecutors Provided Limited

Information and Little Guidance ............................................ 40

Prosecutors’ Disclosures to Defense Counsel Not Tracked ...... 42

CHAPTER FOUR: FORENSIC ANALYSIS AND TESTIMONY BY MICHAEL

MALONE......................................................................................... 45

Background .................................................................................... 45

II.

Findings of Independent Scientists Regarding Malone’s Forensic

Evidence Analysis and Testimony .................................................... 47

III.

FBI and Department Response to Independent Scientists’ Findings

Regarding Malone’s Analyses and Testimony ................................... 53

CHAPTER FIVE: DEATH PENALTY CASES ................................................ 56

Failure to Provide Immediate and Broad Notice ............................... 57

II.

Failure to Design and Implement Case Review Procedures to Ensure

Expedited Handling of Capital Cases ............................................... 58

III.

The FBI Failed to Immediately Identify Death Penalty Cases... 59

The Task Force Did Not Request or Receive Materiality

Determinations from State Prosecutors for All Capital Cases.. 60

The Task Force Did Not Refer All Capital Cases to the FBI for

Independent Review............................................................... 62

The FBI Caused Delays in Death Penalty Case Reviews .......... 63

Task Force Transmittal Letters to Prosecutors Enclosing

Scientists’ Reports Did Not Highlight Capital Cases ............... 63

The Task Force Did Not Track Prosecutors’ Disclosures to

Defendants ............................................................................ 64

Case Studies Demonstrating Inconsistent Treatment....................... 65

CHAPTER SIX: OIG ANALYSIS AND CONCLUSIONS ................................. 68

Death Penalty Cases Not Handled with Sufficient Urgency

and Priority..................................................................................... 69

II.

Inadequate Task Force Review Scope for Non-Death Penalty Cases.. 72

III.

Categories of Cases Inappropriately Eliminated from the Task Force’s

Review Scope .................................................................................. 73

IV.

Insufficient Task Force Resources ................................................... 74

FBI Caused Significant Delays to Independent Scientists’ Reviews... 76

VI.

Limited, “Paper” Review by Independent Scientists .......................... 77

VII.

Inadequate Efforts to Ensure Appropriate and Timely Disclosures to

Defendants ..................................................................................... 78

VIII. Failure to Track Disclosures to Defendants ..................................... 79

CHAPTER SEVEN: RECOMMENDATIONS TO THE DEPARTMENT AND THE

FBI ................................................................................................. 81
APPENDIX A: SELECT DEFENDANTS REFERENCED IN REPORT............. 86
APPENDIX B: THIRTEEN CRITICIZED FBI EXAMINERS ........................... 87
APPENDIX C: CATEGORIES OF CASES ELIMINATED BY THE TASK FORCE

AND THE FBI.................................................................................. 88
APPENDIX D: FEDERAL CASE REVIEW (MATERIALITY) FORM ................ 92
APPENDIX E: REDACTED STATE AND LOCAL CASE REVIEW

(MATERIALITY) FORM..................................................................... 93
APPENDIX F: INDEPENDENT CASE REVIEW REPORT AND GUIDELINES 94
APPENDIX G: DEFENDANTS WHO RECEIVED DEATH PENALTY, LIFE, OR

LESSER SENTENCES ................................................................... 100
APPENDIX H: DEFENDANTS WHOSE CASES WERE REVIEWED BY

INDEPENDENT SCIENTISTS ......................................................... 103
APPENDIX I: DEPARTMENT RESPONSE TO OIG REPORT ..................... 128
APPENDIX J: OIG ANALYSIS OF DEPARTMENT RESPONSE .................. 136

CHAPTER ONE:

INTRODUCTION

Background

This is the third report the Office of the Inspector General (OIG) has
published since 1997 related to alleged irregularities by the Federal Bureau
of Investigation (FBI) Laboratory (Lab).3 This report addresses the effort by
the Department of Justice (Department) from 1996 to 2004 to remedy
improprieties in the Lab analysis of evidence, or in the testimony by FBI Lab
personnel, that was used to support convictions in federal and state
criminal cases. In particular, this report focuses on how the Criminal
Division Task Force (Task Force), created by the Department in 1996 in
response to alleged improprieties in the Lab, managed the identification,
review, and follow-up of cases involving the use of unreliable analysis and
overstated testimony by FBI Lab examiners in criminal cases.4
We conducted this review to assess the process and implementation of
the Department’s Task Force case review and to determine whether
additional cases warrant review to meet the Task Force’s objectives. We
found critical deficiencies in the case review process and implementation.
Given that there are at least seven defendants whose convictions were
tainted by unsupportable FBI Lab analysis or testimony after they each
served lengthy prison terms (see Appendix A), this report includes
recommendations to the Department and the FBI regarding additional
review of and notification to certain defendants whose convictions may have
been tainted by unreliable scientific analyses and false, inaccurate, or
misleading testimony.
In view of the potential effect of our report on individual defendants’
cases, we have taken steps during this review to enable the Department to
U.S. Department of Justice Office of the Inspector General, The FBI Laboratory:
An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and
Other Cases (April 1997) and The FBI Laboratory One Year Later: A Follow-Up to the
Inspector General’s April 1997 Report on FBI Laboratory Practices and Alleged Misconduct in
Explosives-Related and Other Cases (June 1998).
3

move forward with ensuring that defendants receive notice, even if long
overdue, of unreliable Lab analysis or examiner testimony that may have
affected their convictions. To that end, we provided information regarding
all capital cases, regardless of whether they were reviewed by independent
scientists, and all cases reviewed by independent scientists (described in
Chapter Two) to the Department and the FBI at several points during this
review. We did this to enable the Department and the FBI to begin remedial
action we anticipated recommending without awaiting completion of this
report.
This report is divided into seven chapters. In the remainder of this
Introduction, we describe the events that led to the OIG’s current review and
report. In Chapter Two, we describe the Task Force case review process and
the independent scientists’ review process, which the FBI managed.
Chapter Three addresses our analysis of the timeliness of the independent
reviews and transmissions of the independent scientists’ reports. Chapter
Four presents our findings about Michael Malone, the FBI examiner in the
Hairs and Fibers Unit of the Lab who repeatedly created scientifically
unsupportable lab reports and provided false, misleading, or inaccurate
testimony at criminal trials. Chapter Five outlines the Task Force’s and the
FBI’s death penalty case review process and the capital cases affected by the
faulty FBI Lab analysis and examiner testimony. Chapter Six contains our
analysis and conclusions. In Chapter Seven, we set forth our
recommendations to the Department and the FBI.
A.

OIG Investigation of Whitehurst Allegations, 1994–1997

The OIG first investigated the FBI Lab in 1994 when Frederic
Whitehurst, an FBI Supervisory Special Agent and Ph.D. scientist who
worked in the Lab between 1986 and 1998, complained to the OIG and the
Department’s Criminal Division about irregularities at the FBI Lab.
Whitehurst, who performed chemical analyses of explosives and explosives
residue, made allegations related primarily to bombings and explosives
cases concerning the reliability of the procedures employed by the Lab to
analyze evidence, the integrity of the Lab analysts, and the trustworthiness
of testimony provided by Lab examiners. In particular, Whitehurst alleged
that some Lab examiners improperly testified outside their expertise,
presented unsupportable scientific conclusions, committed perjury,
fabricated evidence, and failed to follow appropriate procedures. These
allegations, along with subsequent allegations that Whitehurst made after
his initial complaint to the OIG in 1994, encompassed events dating from
the early 1980s through 1997. The allegations involved some of the most
highly publicized and significant cases investigated by the FBI during that
period.

The OIG’s investigation focused on Whitehurst’s allegations, as well as
on additional problems either identified by the OIG or brought to the OIG’s
attention by Lab employees during the course of the investigation.
Whitehurst’s allegations primarily concerned three Lab components: the
Explosives Unit, the Chemistry-Toxicology Unit, and the Materials Analysis
Unit. Another purpose of the OIG’s investigation was to determine whether
the performance of Lab personnel and Lab practices satisfied general
standards of conduct for forensic scientists and complied with Lab policies
in effect at the time the work was performed. While the OIG’s investigation
of the Whitehurst allegations did not include an examination of all
examiners or the operations of the Hairs and Fibers Unit of the Lab, it did
review the conduct of one examiner from that unit.5
On April 15, 1997, the OIG issued a report of its investigation (1997
OIG Report), and in June 1998, the OIG issued a follow-up report. The
1997 OIG Report addressed 28 FBI employees – including Lab examiners
and Whitehurst himself – whose conduct was the subject of Whitehurst’s
allegations, merited comment, or was otherwise identified to the OIG in the
course of its investigation. While the 1997 OIG Report exonerated 11 of the
individuals Whitehurst identified as having committed misconduct and did
not substantiate his allegations against 3 others, it found significant
instances of testimonial errors, substandard analytical work, and deficient
practices by many Lab examiners. The 1997 OIG Report described
scientifically flawed and inaccurate testimony, testimony beyond the
examiner’s expertise, improper preparation of Lab reports, insufficient
documentation of test results, and scientifically flawed reports in some
cases. In addition, the Report found that the Lab had an inadequate record
management and retention system, a flawed staffing structure in the
Explosives Unit, and various other management failures.
The 1997 OIG Report recommended reassignments and other actions
for 9 of the 28 FBI employees investigated, including Whitehurst, and made
40 recommendations to enhance the quality of the FBI Lab’s forensic work.
The 40 recommendations were in the areas of: (1) accreditation,
(2) structure of the Explosives Unit, (3) the roles of Lab examiners and
resolutions of disputes, (4) report preparation, (5) peer review, (6) case
documentation, (7) record retention, (8) examiner training and qualification,
(9) examiner testimony, (10) protocols, (11) evidence handling, and (12) the
role of management.
In particular, the OIG evaluated the work of Michael Malone, but only because a
witness whom the OIG interviewed in connection with Whitehurst’s allegations raised
questions about the scientific integrity of specific testimony Malone had provided years
earlier. The OIG concluded in its 1997 Report that Malone had testified falsely before a
congressional committee about having conducted a tensile test on a leather strap – a test
that measures the force required to break material.
5

Criminal Division Task Force

In January 1996, 2 years after the OIG had commenced its first
investigation but prior to the release of the 1997 OIG Report, the Criminal
Division, at the direction of Deputy Assistant Attorney General (DAAG)
John C. Keeney, created a task force to conduct a preliminary review of the
Whitehurst allegations and the materials Whitehurst provided in support of
his allegations.6 According to a January 4, 1996, memorandum from DAAG
Keeney to all United States Attorneys and another memorandum of the
same date to Louis Freeh, FBI Director, the purpose of the review at that
time was to: (1) assess the validity of Whitehurst’s allegations of
“improprieties in the analysis and/or presentation of evidence by FBI [Lab]
personnel”; (2) determine whether those allegations gave rise to any
constitutionally required disclosures in specific prosecuted cases of
exculpatory or impeaching material; and (3) inform federal and state
prosecutors of such information so they could make disclosures if
appropriate.7
In June 1997, 6 weeks after the OIG released its report, the Task
Force determined that the work of 13 FBI Lab examiners (identified in
Appendix B) addressed in the OIG Report warranted closer scrutiny.8
Accordingly, the Task Force narrowed its scope from a broad review of all
Whitehurst allegations to those cases involving only the 13 FBI examiners it
determined had been criticized by the OIG (13 criticized examiners). A
June 6, 1997 memorandum to all United States Attorneys from DAAG
Keeney provided new guidance on the Task Force’s mission in light of the
OIG Report. Specifically, the Task Force’s mission became: (1) identifying
cases involving the 13 Lab examiners where the evidence at issue was
material to a defendant’s conviction, relying on the prosecutors to make that
6 Keeney’s positions changed during the period 1995 through 2005. In addition to
serving as a Criminal Division DAAG, he served as Acting Assistant Attorney General and
Principal Deputy Assistant Attorney General.

The seminal authority on prosecutors’ disclosure obligations is the United States
Supreme Court decision in Brady v. Maryland, 373 U.S. 83, 87 (1963), in which the Court
held that “the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” In a subsequent ruling,
United States v. Bagley, 473 U.S. 667, 682 (1985), the Supreme Court held that evidence is
“material” for Brady purposes “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.”
7

Malone was not one of the examiners initially criticized by Whitehurst, and even
after the OIG expanded its review to include Malone, the OIG did not criticize Malone for his
work in the field of hair and fiber analysis. Rather, the crux of the OIG’s criticism was
Malone’s false testimony.
8

materiality determination; (2) advising prosecutors in all cases resulting in a
conviction about the criticisms of the 13 Lab examiners and providing a
copy of or link to the 1997 OIG Report so prosecutors could determine and
comply with their disclosure obligations;9 (3) in cases where the evidence
was deemed material, collecting and submitting available Lab reports,
bench notes, and examiner testimony, if any, for review by independent
scientists; and (4) transmitting the independent scientists’ reports to the
prosecutors so that the prosecutors could determine the need for any
disclosures of such reports to defendants or defense counsel and make such
disclosures as they deemed appropriate. Ultimately, as described by Louis
Freeh, FBI Director, in a June 1997 letter to Congressman Robert Wexler,
“This review . . . will ensure that defendants’ rights to a fair trial were not
jeopardized by the conduct of any of the 13 affected examiners.”
It was the efforts of this Task Force, beginning largely in 1997, that
were the focus of this OIG review, and which are discussed in the following
chapters. The Task Force completed its work in July 2004 and officially
dissolved in August 2005. According to former Task Force members, the
Task Force did not issue a final report summarizing its work, its findings, or
the number or nature of disclosures made to defendants.
C.

Defendants Whose Convictions Were Tainted by Unreliable
Lab Analysis or Testimony

In April 2012, media reporting concerning tainted convictions of
several criminal defendants whose convictions relied upon forensic evidence
analyzed by the FBI Lab drew public and congressional interest.10 The OIG
confirmed, as reported, that three defendants, Donald E. Gates, Santae A.
Tribble, and Kirk L. Odom, had served sentences in excess of 21 years
based in part on FBI hair analyses and testimony that DNA analysis
subsequently proved erroneous. All three defendants were exonerated. In
addition, another defendant, Benjamin H. Boyle, had been convicted of a
capital offense and executed, in part, on the basis of FBI hair and fiber
forensic analysis that an independent scientist later determined to be
flawed.11

9 The June 1997 Keeney memorandum provided federal prosecutors with a link to
the OIG Report on the OIG website and offered additional copies of the Report upon
request. However, as stated in Chapter Two of this report, we found that the Task Force
did not always provide this same information to state prosecutors.

Spencer S. Hsu, “Convicted defendants left uninformed of forensic flaws found by
Justice Dept.,” The Washington Post, April 16, 2012; Spencer S. Hsu, “DOJ review of flawed
FBI forensics processes lacked transparency,” The Washington Post, April 17, 2012.
10

We do not know whether Boyle’s capital conviction would have been upheld or
overturned based on remaining evidence because Boyle was executed before having the
(Cont’d.)
11

As explained in Chapter Two, the Task Force’s review scope,
implemented in 1997, did not include the Tribble and Odom cases because
the examiners involved in those cases were not among those whom the OIG
criticized in the 1997 OIG Report and because the Task Force limited its
database search to cases dating back only to 1985. As we discuss in
Chapter Five, however, we believe the Task Force had sufficient information
to expand the scope of its review in September 1999 to include the review of
all FBI Lab work involving hair comparison analysis and should not have
limited its review to cases beginning 1985 or later. Had the Task Force not
limited the scope of its review in these ways, the deficiencies involving the
Tribble and Odom cases would have been identified much earlier.
The Task Force review scope did include the Gates and Boyle cases
and those two cases were analyzed by both the Task Force and the FBI’s
independent scientists. The Task Force review process identified
deficiencies in the Lab analysis or testimony in both cases. However, in
Gates, the prosecutor failed to convey the identification of deficiencies to the
defendant or defense counsel. In Boyle, the identification of deficiencies
came too late to be of value to the defendant, who was executed 4 days after
issuance of the 1997 OIG Report.
II.

This Review

Shortly after media reporting about the exonerated defendants,
Congressman Frank Wolf, Chairman of the Commerce, Justice, Science,
and Related Agencies Subcommittee of the U.S. House of Representatives
Committee on Appropriations, requested that the OIG evaluate the work of
the Task Force. We decided to conduct this review as a follow-up to our
1997 Report concerning allegations of improper FBI Lab practices and
misconduct by Lab examiners.12
For this report, we studied the Task Force case review process
developed and implemented between 1996 and 2004 – the period when the
Task Force conducted its work – and analyzed the results of that process.
We considered the Department’s initial response to earlier allegations made
in 1994 by FBI Lab examiner Frederic Whitehurst that called into question
the reliability, integrity, and trustworthiness of work performed by Lab
opportunity to learn of the flawed forensic analysis or to appeal his conviction on that
basis.
Our review was separate from a currently ongoing effort by the Department and
the FBI, begun in the summer of 2012, to identify and review thousands of cases where
testimony about the results of microscopic hair examinations conducted by the FBI Lab
was included as evidence in cases that resulted in conviction.
12

examiners, primarily in the FBI Lab Explosives Unit, Chemistry-Toxicology
Unit, and Materials Analysis Unit. The Department’s initial response to the
Whitehurst allegations was relevant to this review because it influenced
many of the later decisions made in connection with the Task Force’s review
process and constitutionally required disclosures – decisions which
determined the Task Force’s approach for the next 8 years. In addition, we
explored the FBI’s role in identifying cases resulting in convictions, hiring
independent scientists to review FBI Lab examiners’ analyses and
testimony, and managing the independent scientists’ work.
Our review identified the key participants and decision-makers
involved in the Task Force, determined which decisions had the most
significant impact on the case review process, and evaluated the
consequences of those decisions. We also assessed the timeliness of the
overall case review process, including how that process affected the death
penalty cases the Task Force reviewed. We evaluated the timeliness of case
identifications, initial Task Force notifications of the case review process to
prosecutors, materiality determinations by prosecutors, the scientific review
process, the transmissions of the scientists’ reports by the FBI and the Task
Force, and – when we were able to find and document them – the
disclosures made by prosecutors to defendants or defense counsel.
We also examined the decisions the Task Force made related to former
FBI Lab Hairs and Fibers Unit examiner Michael Malone, who handled a
disproportionately large number of cases and provided seriously flawed
analyses and testimony in many cases the Task Force reviewed. We found
that, of the 13 FBI Lab examiners whose cases the Task Force reviewed,
Malone’s conduct was the most egregious. He repeatedly created
scientifically unsupportable lab reports and provided false, misleading, or
inaccurate testimony at criminal trials.
The OIG review team consisted of OIG attorneys and program
analysts. We conducted our fieldwork from May 2012 through August
2013. Our fieldwork included data collection and analyses of Task Force
case files and electronic databases; reviews of correspondence by and
between the Task Force, the FBI, federal and local law enforcement officials
who requested FBI assistance, prosecutors, defense counsel, and
defendants; reports of independent scientists and other related documents;
trial testimony, congressional hearings, and press articles; and factual and
legal research on the status of defendants whose cases the Task Force
reviewed and who were sentenced to death or lengthy prison terms. We
reviewed thousands of pages of documents.
We interviewed former Task Force staff members and former and
current senior Department and Criminal Division officials, including a
former Department Associate Deputy Attorney General and a former

Criminal Division DAAG. At the FBI, we interviewed former and current
Assistant General Counsels in the Office of General Counsel and a former
Section Chief of the FBI Lab, as well as two independent scientists whom
the FBI had hired as part of the Task Force and FBI case review process
described in Chapter Two.
We faced several challenges in reviewing the work of the Task Force.
For example, we were unable to interview certain people who played
important roles in the 1996 Task Force review of the Lab, the most
significant of whom was the late John C. Keeney, formerly a DAAG in the
Criminal Division. Others who had left the Department or the FBI prior to
our review were unavailable or unwilling to be interviewed.
Another challenge we experienced was understanding the organization
and degree of completeness of the files maintained by the Criminal Division.
A former Task Force member explained the filing system created for this
case review and told us that the Task Force had intended to maintain a
system that would capture all correspondence by and between it, the FBI,
prosecutors, defense counsel, unrepresented defendants, and other third
parties. Yet, despite what appears to have been considerable effort on the
part of the Task Force to document its actions, the files we reviewed were
not complete and certain files, folders, and boxes were missing in their
entirety.
We understand that multiple individuals, including Whitehurst, made
extensive requests pursuant to the Freedom of Information Act and that as a
result of producing documents to comply with those requests, some
documents may have been misplaced or misfiled. We also recognize that the
passage of time since the conclusion of the Task Force’s work may have
affected the Department’s ability to locate and produce some files. Although
we reviewed every file available to us, the Task Force’s failure to document
certain critical events, such as disclosures made by prosecutors to
defendants or defense counsel, and case-specific decisions, such as the
elimination of cases falling into as many as 18 categories (discussed in
Chapter Two), made it impossible for us to identify all cases and defendants
eliminated from review.
In Chapter Two we provide more details about the Task Force case
review process, including the key participants, the case identification
procedures, the review scope, and the elimination of certain case categories.
We also discuss the prosecutors’ materiality determinations and the review
of cases by independent scientists at the FBI.

CHAPTER TWO:

TASK FORCE CASE REVIEW PROCESS

Overview

According to many witnesses we interviewed, the magnitude and
complexity of the Task Force case review process and implementation were
unprecedented. We were told that never before had the Department
undertaken such a massive case review with such potentially serious
consequences. Former Task Force members told us they had many
challenges to overcome, including negotiating roles and responsibilities with
the FBI; managing communications and documentation concerning
thousands of cases; compensating for imperfect case identification methods,
unavailable or unresponsive prosecutors, missing, destroyed, or incomplete
case files; managing an overwhelming number of cases; and developing a
comprehensive system to document the Task Force case review process.
Participants said that these challenges were compounded by insufficient
resources, a lack of decision-making authority delegated to the Task Force,
and a lack of continuity in both Task Force staffing and Department
leadership.
Through our witness interviews and file review, we determined that
there was an absence of planning and forethought with regard to
disclosures to defendants that might be required as a result of the Task
Force’s findings. In particular, other than deciding to inform prosecutors of
relevant information and deferring to the prosecutors about their disclosure
obligations, we found no evidence that senior management considered the
threshold for when disclosures of information to defendants would be legally
required in cases involving 1 or more of the 13 examiners. Nor did we find
any evidence that senior management considered the kind of information
that should be disclosed or the importance of tracking such disclosures.
As we discuss later in this report, the initial Task Force review
included over 7,600 federal and state cases involving the 13 criticized
examiners. With the assistance of the FBI and federal and state
prosecutors, the Task Force determined that approximately 2,900 of those
cases: (1) resulted in a conviction (either by trial or guilty plea), (2) were
cases awaiting trial or pending appeal, or (3) were sealed. For cases in
active litigation, the Task Force worked directly with the prosecutors to
ensure appropriate and timely disclosure to defendants or defense counsel.
The majority of the 2,900 cases, however, were closed. According to FBI
and Task Force documents we reviewed, these 2,900 cases also included a
limited number of sealed cases without indication of the litigation status.

We include the sealed cases in our discussion of closed cases resulting in
convictions.
For those cases resulting in a conviction, the Task Force requested
that federal and state prosecutors determine the materiality of the forensic
evidence to each defendant’s conviction and, where the FBI Lab evidence
was material to the conviction, provide relevant case materials to the Task
Force. Where the Lab evidence was material to the defendants’ convictions,
the Task Force transmitted to the FBI, for review by at least 1 of 14
scientists selected by the FBI, the Lab reports, any underlying
documentation from the Lab (such as bench notes and dictation notes), and
the examiner’s testimony, if any.13 We found that the Task Force referred a
total of 338 cases to the FBI. We determined that the independent
scientists reviewed and completed reports for 312 of the 338 cases, relating
to 402 defendants.14
After the independent scientists completed their reviews, the FBI
forwarded the scientists’ reports to the Task Force. The Task Force then
transmitted copies of those reports to the federal or state prosecutors who
handled the cases, and requested that the prosecutors determine if
disclosure of the report, or other information, to defendants or defense
counsel was required. The prosecutor determined what should be disclosed
to the defense without input from the Task Force. Because the Task Force
neither required notification of nor tracked the prosecutors’ disclosures, we
were unable to determine, with limited exceptions, which independent
scientists’ reports or other information were disclosed to defendants.
In April 2014, after reviewing a draft of this report, the FBI provided to the OIG
for the first time a list of all independent scientists who reviewed cases for the Task Force.
The list contained 14 scientists – 10 from independent agencies and 4 from the FBI Lab.
Because 4 of the 14 scientists were employed by the FBI Lab, they were not, in our view,
“independent.” Nevertheless, for purposes of this report, our use of the term, “independent
scientists” includes all 14 individuals who reviewed cases for the Task Force.
13

The independent scientists did not review all of the 338 cases the Task Force
referred to the FBI for a variety of reasons, including: (1) the bench notes and Lab report
could not be located; (2) the FBI examiner’s analysis was deemed inconclusive or not
material after the case had been referred for independent review; (3) the FBI examiner only
confirmed the work of another examiner and, therefore, the Task Force deemed
independent review unnecessary; or (4) the case was eliminated from the Task Force’s
review scope after the referral but prior to the completion of the independent scientists’
review. We discuss eliminated case categories later in this report.
14

In April 2014, after reviewing a draft of this report, the FBI provided to the OIG for
the first time undated documents stating that the Task Force referred 333 cases to the FBI
for review by independent scientists, resulting in 368 completed reports. This discrepancy
may be attributable to the fact that some reviews by independent scientists involved the
work of multiple FBI examiners under scrutiny, multiple evidence types, and multiple
defendants.

Below, we describe the key participants in the Task Force case review
process and the process as designed and implemented.
II.

Key Participants in the Case Review Process

There were four sets of participants in the case review process:
(1) Department management personnel within the Criminal Division, the
Office of the Deputy Attorney General (ODAG), and the Office of the Attorney
General (OAG); (2) the Task Force staff; (3) the FBI; and (4) the federal and
state prosecutors.
Department Management: Senior management officials in the
Department’s Criminal Division, ODAG, and OAG took the lead in designing
the case review process and supervising the Task Force. Through our file
review and interviews, we found that at least 12 management level attorneys
in the Criminal Division and Department, including the Attorney General,
an Assistant Attorney General, an Associate Deputy Attorney General, and a
DAAG, oversaw the Task Force at various times during its 8-year operation.
Those senior officials were responsible for important policy decisions and
legal interpretations related to the Task Force case review process and
implementation but did not work on the day-to-day case review. The time
periods during which senior Department officials oversaw the Task Force
varied; some officials were involved for only 1 or 2 years. In addition, these
officials had other concurrent responsibilities within the Department.
Former Task Force members told us about frequent changes in senior
management leadership. One former member who remained on the Task
Force throughout its duration stated that the lack of continuity in
Department leadership resulted in different interpretations of how to
implement the case review process and difficulty obtaining necessary
guidance and decisions from senior management. In the following chapters
we discuss how delays in the Department’s decision-making affected the
general pace of the review and how decisions such as whether and when to
eliminate certain case categories from the review scope resulted in delays
due in part to changing senior management leadership. We also discuss
how the lack of continuity in Department leadership contributed to the Task
Force’s inability to provide authoritative guidance to the FBI and
prosecutors and to address the serious problems with cases Malone
handled.
Task Force Staff: The Task Force staff members were responsible for
implementing the case review process as designed, including coordinating
with the FBI and prosecutors, and managing the records and
communications concerning the thousands of cases that were the subject of
the review. Through our interviews and file review, we determined that for

the most part, none of the Task Force members participated in or made
significant decisions about how the Task Force would operate. Rather, the
Task Force received guidance and direction about its operation from
Department management and implemented that guidance.
At the outset, the Task Force staff was comprised of one senior trial
attorney supervised primarily by John Keeney, then serving as Acting
Assistant Attorney General (AAG). DAAG Kevin DiGregory also provided
oversight of the Task Force. In January 1996, a second trial attorney was
hired to work full time on the Task Force. The second attorney became the
head of the Task Force in October 1996 when the original senior trial
attorney was promoted to another position in the Department. Between
1996 and 2004, the Task Force was also supported by two to three
paralegals and, on some occasions, by a few student interns and
administrative personnel. In June 2000, staff leadership of the Task Force
changed again with the departure of the second trial attorney and elevation
of another attorney to the position of lead attorney on the Task Force.
During its 8 years of operation, we found that the Task Force staff included
no more than two attorneys, three paralegals, and a few student interns and
administrative personnel. For many of those 8 years, the staffing level was
even lower. Moreover, only one person served continuously on the Task
Force, first as a student intern, then as a contractor, and finally as a
Department paralegal.
FBI: The FBI was responsible for identifying criminal cases handled
by 1 or more of the 13 criticized examiners and for identifying, hiring, and
managing the independent scientists it retained to review the cases referred
by the Task Force. According to FBI and Task Force witnesses we
interviewed, the FBI was not involved in discussions or decisions relating to
notifications to defendants or defense counsel and had no responsibility for
communicating with defendants or their counsel at any stage of the process.
The FBI witnesses we interviewed told us that the FBI acted in a “support
capacity” to the Task Force, not as co-leaders or co-managers of the case
review process. In particular, these witnesses told us that the FBI’s role
was limited to communicating information about case identification to the
Task Force staff, managing the hiring and work of independent scientists,
and transmitting the completed independent reports to the Task Force.
During our review, however, we found that the FBI was actively involved in
decisions related to narrowing the scope of cases subject to review by the
Task Force. We discuss these decisions and the FBI’s role in making them
in more detail below.
The FBI assigned one team – a supervisory paralegal and five
paralegals – from its Civil Discovery Review Unit (CDRU) of the OGC to work
full-time on the Lab case review beginning April 1997. In September 1999,
the FBI temporarily reassigned the CDRU team to work on other matters. In
12

April 2000, the same team, minus one paralegal, resumed work on the Lab
case review. In addition, the FBI added OGC attorneys, Chief Division
Counsels in field offices, Lab personnel, and staff in other divisions to assist
the CDRU team. We found no indication that the FBI assigned other staff to
replace the CDRU team to ensure continued progress on the Lab review
during the team’s 7-month unavailability.
Prosecutors: Federal and state prosecutors assisted in the
identification of cases within their jurisdictions that resulted in convictions
and that would be subject to the Task Force’s review. Their primary
responsibilities, however, were to assess the materiality of specific evidence
to the convictions in the cases they prosecuted and to make disclosures to
defendants or defense counsel when constitutionally required. The
responsibility for assessing materiality entailed retrieving case materials
from their office or off-site storage files and reviewing the case materials to
determine the role, if any, the evidence played in the defendant’s conviction.
If prosecutors deemed the FBI Lab analysis or testimony material to the
conviction, then they were responsible for providing the case materials to
the Task Force, which would then transmit those materials to the FBI for
review by independent scientists. In addition, under the law, the
prosecutors were required to disclose appropriate information, such as the
independent scientist’s report, to the defendant or defense counsel if there
were a reasonable probability that had the evidence been disclosed to the
defense, the result of the proceeding would have been different. Moreover, if
prosecutors decided to disclose the independent scientists’ reports to the
defendants or defense counsel, then they were responsible for doing so in a
timely way.15 The prosecutors’ materiality determinations and ultimate
disclosure decisions were fundamental to the objectives that gave rise to the
creation of the Task Force: preservation of the rights of the defendants
whose cases involved analysis or testimony handled by 1 or more of the
13 Lab examiners.
The Department elected not to include as part of the case
identification process any outreach to defense counsel or defense
On April 15, 1997, immediately following publication of the OIG Report, thenActing AAG Keeney sent a memorandum attaching a copy of the Report to all federal
prosecutors and senior Criminal Division management attorneys, requesting that all state
and local prosecutors be notified of the Report and be given access to it. In our review of
Task Force files, we found that some federal and state prosecutors disclosed to defense
counsel in individual cases the OIG Report and its potential relevance to the conviction of
the defense counsel’s client. Our research revealed, however, that the OIG Report was not
uniformly provided to defense counsel in closed cases where the defendant’s conviction
might have been affected by the OIG Report. See, e.g., Moss v. State of Florida, 860 So.2d
1007, 1009 (2003) (defendant learned of OIG Report from newspaper article 4 years after
publication of the OIG Report).
15

organizations. Our review of the Department’s policy with respect to the
work of the Task Force showed this decision was based on settled legal
authorities and was approved by Attorney General Janet Reno on the
recommendation of her senior advisors.16
III.

Case Review Process in Detail
A.

Review Scope and Case Identification Process

At the direction of Acting AAG Keeney, the case review process called
for the Task Force to identify, with the assistance of the FBI and federal and
state prosecutors, all cases that resulted in a conviction (by trial or guilty
plea) in which forensic evidence had been analyzed or the subject of
testimony by any of the 13 criticized Lab examiners.17 The FBI identified
most of the cases using its databases of federal, state, and local cases and a
case identification checklist for use by its field offices. With regard to
federal cases, Acting AAG Keeney asked all U.S. Attorneys’ Offices to search
their files for cases involving the 13 examiners. In addition, Acting AAG
Keeney directed that each U.S. Attorney’s Office review FBI-generated lists
of federal cases to determine whether prosecution in the identified cases had
resulted in convictions.
With regard to state and local cases, which together outnumbered the
federal cases, there is evidence that Acting AAG Keeney or the Task Force
considered seeking assistance directly from state attorneys general and
district attorneys. We reviewed a draft memorandum and two draft letters
addressed to those respective offices but we found no evidence in the Task
Force files, that the draft letters were approved and sent. An internal Task
Force e-mail, written by a then-senior Task Force attorney prior to the April
1997 OIG Report, stated that the FBI was concerned that sending a blanket
notice to all state attorneys general and district attorneys regarding
Whitehurst’s allegations would “tarnish” the reputation of the Lab when the
OIG had yet to make any adverse findings. Our file review showed that the
Task Force ultimately did not seek assistance directly from state attorneys
general and district attorneys. Instead, we found that after issuance of the
1997 OIG Report, the FBI tasked its field offices with conducting examinerspecific inquiries, directing those offices to contact the state and local
prosecutors and local law enforcement officials who had requested the
16 Attorney General Reno was criticized at the time for this decision by Gerald
Lefcourt, President of the National Association of Criminal Defense Lawyers.

Task Force members told us that the Department lacked authority to direct state
prosecutors to assist in the case identification process or to demand their immediate
assistance with the case review process.
17

original FBI Lab examination of evidence handled by the 13 examiners. The
purpose of those contacts was to assist the Task Force in determining which
cases had resulted in convictions.
Based on our file review and interviews, we found that the case
identification process was long and arduous due to the sheer volume of
cases, the decentralized search efforts, and frequent changes in Task Force
staffing and management decisions. In total, the process of identifying
cases at the federal, state, and local levels took approximately 8 years,
beginning in 1997 and ending in 2004. We also determined that the scope
of review for the universe of cases DAAG Keeney sought to capture was
subsequently narrowed in significant ways, as described below.
1.

Most Cases Pre-dating 1985 Eliminated from Task
Force Review

The first scope limitation was one imposed by the FBI, which informed
the Task Force during the case identification effort that it would not identify
cases prior to 1985 because it did not have a computerized database of
cases dating before that time.18 No Task Force or FBI document we
reviewed and no witness we interviewed stated that the Task Force staff,
Criminal Division management, or other Department officials inquired of the
FBI as to what resources would be required for the FBI to manually identify
those cases arising before 1985.19 The Criminal Division seems to have
accepted the FBI’s decision not to identify cases prior to 1985 and
addressed identification of such cases only by encouraging prosecutors to
make “appropriate efforts” to identify any cases pre-dating 1985.
Thereafter, the Task Force focused its case search on the period between
1985 and 1996.

It remains unclear to us, despite interviews of multiple former FBI and Task
Force personnel, what stage of investigative, prosecutorial, or court action determined
whether a case was captured in the FBI database as of January 1, 1985. We determined,
however, that defendants convicted and sentenced prior to 1985 were not captured in the
database.
18

In the course of our document review, we discovered an FBI Lab document
purporting to memorialize a May 1, 1998, telephone call with an FBI Assistant General
Counsel concerning the use of 1985 as the cut-off date for case retrieval. The typed notes
referenced a “manual log” of hair and fiber cases that captured Lab reports between 1982
and 1987 and the existence of a separate computer database, “Express System,” that
captured reports in the Explosives Unit going back to 1972. The notes stated further that
the Lab “demonstrated that we can pull up the old reports.” Although the notes referenced
the “[n]eed to determine if any other units maintain databases or tickler copies of
Laboratory reports prior to 1985,” we did not find any other document that discussed or
referred any other sources of case information pre-dating 1985 and potentially helpful to
the Task Force review.
19

As a result of this narrowed scope, an unknown number of cases prior
to 1985 that included forensic evidence handled by 1 or more of the
13 examiners and potentially material to a defendant’s conviction were, with
limited exceptions, not reviewed by the Task Force. Moreover, given that at
least 6 of the 13 examiners joined the FBI Lab before 1985, the possibility
exists that additional problematic cases warranting independent review and
disclosure to defendants eluded Task Force review as a result of the decision
not to search FBI records for cases pre-dating 1985. Appendix B lists the
13 examiners and the years (where known) they joined the FBI. Our
examination of cases the Task Force referred to the FBI for review showed
there were at least 68 cases with convictions pre-dating 1985 and involving
1 or more of the 13 examiners. The Task Force did include those 68 cases
in its review. The combination of the FBI’s limiting the scope of the Task
Force’s review to cases beginning in 1985, and the Task Force’s failure to
expand its initial scope to all examiners in the Hairs and Fibers Unit, as
discussed in Chapter Four, also resulted in an additional unknown number
of cases with potentially tainted convictions. Notably, among the cases not
reviewed because of the Task Force’s artificially limited scope were those of
Tribble and Odom, referenced in Chapter One. Both cases involved
defendants who were exonerated by DNA testing and whose convictions
were later determined to have been tainted by discredited hair evidence after
they served lengthy prison terms (see Appendix A).20
Excluding the pre-1985 cases, the FBI reported in a 2007 summary
document that the identification process yielded 7,609 cases involving the
13 examiners. Of those 7,609 cases, at least 2,893 cases resulted in
convictions and, barring elimination for other reasons, would proceed to the
next stage in the case review process: the prosecutor’s determination of the
materiality of the Lab evidence to the conviction. Figure 1 (next page)
illustrates the case identification process and shows the number of cases
identified.

The testimony about hair evidence used to convict Tribble in 1980 and Odom in
1981 (and ultimately questioned) was analyzed by FBI Lab examiners James Hilverda and
Myron Scholberg, respectively, according to court documents. Tribble spent 27 years in
prison and Odom spent 21.5 years in prison before they were exonerated by DNA testing.
20

FIGURE 1: TASK FORCE CASE IDENTIFICATION PROCESS

Note: Regarding the Task Force review scope, a June 6, 1997, memorandum from John C.
Keeney, Acting Assistant Attorney General, Criminal Division, to all United States
Attorneys, First Assistant United States Attorneys, Criminal Chiefs, Criminal Division
Section Chiefs, and Office Directors stated: “. . . there is no database which identifies pre1985 cases. Therefore, each United States Attorney’s Office should make appropriate
efforts to identify any pre-1985 cases involving examiners identified in the OIG report.”
Sources: The process for identifying cases was reported in a July 23, 1997 letter from
William Esposito, Deputy Director, FBI, to Paul Fishman, Associate Deputy Attorney
General. The numbers of cases were reported in a 2007 FBI summary document, “Lab
Task Force Summary.”

Other Cases Eliminated from Task Force Review

According to former Task Force members we interviewed, at the outset
of the case identification process in 1996, the Task Force made as its top
priority determining constitutionally required disclosures in pending
litigation. For those active cases, the Task Force provided Lab reports and
other related documents to prosecutors for disclosure to defendants or
defense counsel. Once it made the necessary disclosures to the
prosecutors, the Task Force did not subject the active cases to further
review. We found no documentation indicating that the Task Force referred
any active cases to the FBI for review by an independent scientist.
Thereafter, between September 1998 and April 2003, Task Force staff,
senior Department management officials, and FBI personnel held meetings
and exchanged correspondence in an effort to streamline the review process.
The concerns each participant expressed focused on the large volume of
cases the FBI had identified, the insufficiency of the resources available to
review all the cases that resulted in convictions, and what the participants
believed to have been an overbroad initial reading by the Task Force of the
1997 OIG Report. The Task Force’s initial interpretation of the 1997 OIG
Report had led it and the FBI to include in the review a Lab examiner whom
the OIG did not find to have engaged in misconduct and other examiners
whose primary work the OIG did not criticize at all.
We ascertained that as a result of the communications between 1998
and 2003, senior Department management officials and the FBI agreed to,
and did, eliminate from the case review process 18 additional categories of
cases. Appendix C provides a complete list of the case categories eliminated
by the Task Force and the reasons cited for the elimination of each category.
In one such category – the “small” cases – the Task Force notified
prosecutors of the 1997 OIG Report.21 However, elimination from review
generally meant that the Task Force did not seek a determination by the
prosecutor as to whether the Lab evidence was material to the conviction.
Therefore, in those cases, no review of the Lab evidence was conducted by
an independent scientist.
We found that the Department and the FBI provided a rationale in the
correspondence for eliminating some of the 18 categories of cases, including
that no defendant’s constitutional rights were or could have been adversely
affected by the lack of review. For example, cases involving defendants who
were not convicted of an offense for which the evidence was handled by a
Small cases were defined by the Task Force as cases in which the defendants
“were fined, not incarcerated, or should have finished their sentence more than 6 years
ago.”
21

criticized FBI examiner were not included in the review process because the
evidence was not relevant to the defendant’s conviction. Similarly, cases
where the conviction was vacated or reversed without subsequent retrial
were not included in the review process because any Lab work related to the
prosecution was no longer relevant or had no bearing on the defendant’s
constitutional rights.
According to an FBI summary dated April 18, 2003, 448 cases were
eliminated either because allegations against the examiners had not been
substantiated in the OIG Report, the examiners had not been criticized for
their primary forensic analyses, or the cases were deemed “small” and not
worthy of review. However, the 448 cases eliminated from review were
associated with only 4 of the 18 categories of cases the Department and the
FBI eliminated. Three of those categories (278 cases) related to
unsubstantiated allegations against each of 3 examiners. The fourth category
(170 cases) entailed “small” cases – defined in the FBI summary as those in
which defendants were fined, not incarcerated, or should have finished their
sentence more than 6 years earlier. Although the Task Force maintained a
database that identified some of the categories of cases that were later
eliminated, we were unable to identify which cases and individual defendants
the Task Force eliminated from review as a result of the Department and FBI
decisions described above.
The Department and the FBI eliminated other categories of cases,
however, without an explanation articulated in the correspondence we
reviewed. We highlight below five categories of cases excluded from the
review process even though there was a potential that the defendants in
these categories would suffer serious, adverse consequences if their
convictions were tainted by unreliable Lab analysis or testimony.22 These
categories include cases where:
 The defendant had died (whether by natural causes or
execution).
 The defendant “should have finished [his] sentence more than
6 years ago.” (Date unspecified.) This category is among the
“small” cases described above.

Potential collateral consequences to criminal convictions include: loss of job,
housing, and educational opportunities; loss of the right to vote; harm to family and other
personal relationships; loss of physical and mental health; and the possibility of an
enhanced prison sentence in the event of a subsequent conviction after release. In the
event of a tainted criminal conviction, the integrity of the criminal justice system also
suffers because such incidents undermine the public’s respect for and trust in our system
of justice.
22

 The FBI Lab’s assistance was requested to support a foreign
prosecution.
 The defendant had been deported.
 Malone confirmed the Lab results of another examiner but did
not perform the hair examination.
B.

Materiality Determinations by Prosecutors

In a June 6, 1997 memorandum to Department attorneys, Acting AAG
Keeney directed that after cases involving the 13 examiners and resulting in
a conviction were identified, the federal prosecutors were to assess the
importance of the Lab evidence and examiner testimony to determine their
materiality to the defendant’s conviction. The Task Force designed a case
review form for federal prosecutors to complete – one form for each
defendant and FBI Lab examiner involved in each identified case that
resulted in a conviction. Appendix D contains a blank federal case review
form the Task Force designed and sent to federal prosecutors. If the federal
prosecutor determined that the Lab evidence was not material to the
conviction, the case review form directed the prosecuting office to explain in
writing the basis for its conclusion.
In cases where the federal prosecutor indicated that the forensic
evidence or testimony was material to a defendant’s conviction, the Task
Force followed up with the prosecutor to request information concerning the
role of the FBI Lab examiner in the prosecution and relevant case materials,
including transcripts of the examiner’s testimony (if any). The Task Force
would then transmit these materials, along with any additional information
it obtained, to the FBI for review by independent scientists. For general
disclosure guidance, the Task Force included with its letter to federal
prosecutors a legal memorandum prepared by the Appellate Section of the
Criminal Division, referred to as the “Brady Memorandum.” This
memorandum described the relevant Supreme Court rulings on
constitutionally required disclosures, which legal requirements should have
been well known to all of the prosecutors. In keeping with the approach
described in earlier memoranda to the U.S. Attorneys, the Task Force
reiterated that the responsibility to assess these disclosure obligations and
to make such disclosures rested with the prosecutors.
We found through our review of hundreds of case files that in the
course of requesting the conviction status of each identified defendant, the
Task Force sent a copy of the OIG Report to the federal prosecutor
associated with each prosecuted case. The Task Force usually indicated the
OIG Report page numbers referencing the particular Lab examiner involved
in the defendant’s case. Generally, although not in every instance, the Task
Force requested that if the federal prosecutor were to disclose the OIG

Report to the defendant or defense counsel, then the prosecutor should
send to the Task Force a copy of the transmittal letter he or she sent to the
defendant or defense counsel. Figure 2 (next page) illustrates the case
review process.

FIGURE 2: CASE REVIEW PROCESS

Task Force requested materiality
determinations

2,893 cases

Materiality
Determination
Prosecutors determined
whether FBI examiner' s
work was material to
d efendant's conviction.

Prosecutors provided
written assessments
explaining why evidence
was not material to
defendant's conviction.

Material

Prosecutors notified
Task Force that FBI
examiner's work was
materia l to defendant's
conviction ,

Task Force requested
independent review of
FBI examiner's work.

Independent Review
Independent scientists
conducted paper review
of FBI examiner's work .

FBI provided scientists'
completed reports to
Task Force.

Task Force provided
scientists' completed
reports to prosecutors.

Disclosure
Determination
Prosecutors determined
whether, when, and how to
disclose independent
scientists' rep orts to
defendants.

Source: OIG analysis of Task Force and FBI documents.

With respect to materiality determinations for state and local cases,
the process was similar. Task Force members worked with state and local
prosecutors to collect the same kind of information regarding their cases as
sought from the federal prosecutors, described above. The Task Force
designed a case review form for state cases similar to the one it designed for
federal cases. Appendix E contains a state and local case review form with
case information redacted.
Unlike the protocol used for federal cases, however, the Task Force
did not consistently provide the state prosecutors a copy of the Brady
Memorandum or any other legal guidance of the kind provided to federal
prosecutors, or a copy of or link to the OIG Report. Although there may
have been some state cases in which this information was provided, it was
not consistently done , according to Task Force correspondence we reviewed
and former Task Force members we interviewed. These decisions were likely
driven by considerations of the relationship between the Department, a
federal government agency, and the state prosecuting entities, which were
independent of the Department. In addition, one noteworthy modification
arose with the state cases: because many state prosecutors responded that
they lacked sufficient resources to make materiality determinations in a
timely fashion or failed to respond at all to repeated requests for materiality
determinations, the Task Force notified those prosecutors that in the
absence of a materiality determination by the prosecutors, it would refer
those cases to the FBI for independent review.
Upon learning of cases where the prosecutor determined that the
evidence handled by 1 or more of the 13 examiners was material to a
defendant’s conviction, the Task Force did not communicate with the
prosecutors – federal or state – about steps they should take to fulfill their
disclosure obligations. Specifically, the Task Force did not provide any
direct guidance to the prosecutors about what they should do in cases
where the prosecutor determined that the Lab evidence was material to the
defendant’s conviction, such as a recommendation that the prosecutor
disclose to the defendant or defense counsel that a Department case review
was underway concerning potentially unreliable FBI Lab analysis or
testimony material to the defendant’s conviction. We found no documents
and learned from no witnesses why the Department did not direct the Task
Force to include such guidance.
C.

Referrals for Review by Independent Scientists

Once the Task Force decided to obtain an independent scientist’s
review of a case (because a prosecutor either determined that the Lab
evidence was material to the defendant’s conviction or requested an

independent review without such a determination), it sent a referral letter to
the FBI requesting such a review.23 Although the Task Force requested
independent reviews on a rolling basis, the FBI permitted the accumulation
of referred cases until, in its view, there were enough to justify bringing
scientists to FBI Headquarters to conduct reviews.
According to the documents we found, the Task Force sent 37
separate referral letters concerning 338 cases to the FBI between July 1998
and January 2004. The letters identified each case by examiner, case
name, associated FBI-assigned identification numbers and, sometimes, the
type of analysis performed by the Lab. Although we found no
documentation reflecting a Department or Task Force decision to prioritize
capital cases, former Task Force staff members told us they did make these
cases their top priority. According to those witnesses, they color-coded and
separated capital cases from non-capital cases. However, the impact of this
segregation was not apparent to us. The Task Force case referral letters did
not flag for the FBI that any of the referred cases involved a defendant on
death row, as we discuss further below.
For example, the first Task Force referral letter in July 1998
contained 60 cases, including cases for 4 death penalty defendants, 3 of
whom were awaiting execution at the time and 1 of whom had been
executed 4 weeks earlier. Yet the referral letter did not provide any of the
death penalty or execution information to the FBI for those cases. Also
noteworthy was that when the FBI Office of General Counsel (OGC)
transmitted the July 1998 case list to the Lab for reviews by independent
scientists, it made no mention of the death penalty cases included on the
list or of a priority for the review of those cases, even though the FBI had
knowledge of which defendants were on death row because it originally
identified such cases.
D.

Review by Independent Scientists

The FBI retained 14 scientists (10 independent scientists and 4 from
the FBI Lab) with expertise in a variety of disciplines – including 2 scientists
with hair and fiber expertise – to review written materials related to the
cases the Task Force referred. In total, we found these scientists reviewed
312 cases related to 402 defendants. Of the 312 cases, 162 contained hair
and fiber analyses performed by Malone relating to 172 defendants. The
independent scientists’ reviews did not involve examination of the physical
There were some cases, mostly from Florida, for which prosecutors requested an
independent review without regard to the materiality of the evidence to the defendants’
convictions. The Task Force granted such requests when made. In addition, if the Task
Force did not receive a response to a request for a materiality determination, it referred the
case to the FBI for an independent review.
23

evidence. Rather, their evaluation was strictly a “paper” review of the Lab
examiners’ work and testimony, as described below.
Figure 3 shows the total universe of cases identified and defendants
whose cases were evaluated during the Task Force case review process.
FIGURE 3: TOTAL UNIVERSE OF CASES
• Cases Identified in which the 13 Examiners Conducted
7,609 Analysis/Testified

2,893

N/A
338

312

172

• Cases Resulting in a Conviction
• Cases with Materiality Requests or Materiality Determinations:
Unknown
• Cases Sent for Review by Independent Scientists

• Cases Reviewed by Independent Scientists
• Defendants Whose Cases Contained Hair or Fiber Analyses
Conducted by FBI Lab Examiner Michael Malone

Sources: FBI, “Lab Task Force Summary,” (2007) and OIG analysis.

Protracted Identification and Retention of Experts

The FBI took responsibility for identifying and retaining qualified
experts for each scientific discipline associated with the referred cases and
for working through the needed security clearance for each outside scientist.
The FBI Lab employee responsible for overseeing the independent review
process from 1997 to 2003 explained that the independent scientists were
generally brought to FBI Headquarters using a “batching” system. This
meant that, although the Task Force requested independent reviews on a
rolling basis, the FBI did not respond in like manner – at least with respect
to the two hair and fiber scientists who lived and worked outside the
Washington area. In those cases, the FBI allowed the hair and fiber cases
referred by the Task Force to accumulate in its offices until there was a
large enough set to justify, in its view, the scientists’ travel to FBI
Headquarters to conduct the reviews. Then, the FBI copied the relevant
case materials (bench notes, lab reports, correspondence, and testimony
transcripts) for the scientists’ reviews, set up physical space for the reviews
25

(located on a different floor from the Lab), and made arrangements for the
scientists’ travel to Washington.24
Although the Lab did not wait for case referrals from the Task Force
before beginning to identify potential scientific experts, the process of
identifying, retaining, and bringing several experts to Washington to perform
case reviews was protracted, taking as many as 6 years in one instance
before an expert was retained. For example, in October 2000, 2 years and
3 months after the Task Force referred the first 60 cases to the FBI for
independent review in July 1998, the FBI wrote to the Task Force that it still
had not been able to identify an explosives expert necessary to review some
of the referred cases. As of early spring 2002, the FBI was still attempting
to identify military weapons and shoeprint experts. Remarkably, it was not
until April 2004, that the FBI located an independent scientist to review five
pending cases with plant evidence, all of which had been analyzed by
Malone. The independent scientist reviewed those plant cases on
September 22, 2004.
With regard to hair and fiber experts, the FBI began to identify
potential expert scientist candidates in the summer of 1997 but did not
contact state law enforcement agencies for the purpose of hiring such
experts until after the Task Force referred the first 60 cases to the FBI for
independent review in July 1998. Furthermore, the first (and only) two hair
and fiber scientists the FBI retained did not begin their case reviews until
mid-May 1999 – over 10 months after the Task Force requested the reviews.
Notably, included in the first set of cases sent for independent review were
five death penalty cases, each of which had been handled by Malone.25 In
one of those cases, Texas v. Boyle, the defendant had been executed
8 weeks before the FBI identified his case as having been handled by one of
the criticized examiners. We discuss the Boyle case in more detail in
Chapter Five of this report.
2.

Nature of the Independent Review: “Paper” Review

In the course of setting parameters for the independent scientists’
case reviews, the FBI took the lead on making certain decisions about how
the reviews would be conducted. In particular, the FBI decided that the
scientists would review the Lab examiners’ bench notes and reports, trial
24 The FBI required the independent scientists to travel to FBI Headquarters to
conduct the paper review of case materials. Not until late in the process, after the events of
September 11, 2001 made air travel more burdensome, did the FBI permit at least one
scientist, Steve Robertson, to review the materials at an FBI field office.
25 Those defendants were Benjamin H. Boyle, Brett A. Bogle, Billy Rae Irick, and
Bryan M. Jones (who was a defendant in two of the five cases).

transcripts, and any other related materials provided by the Task Force, but
would not re-examine the physical evidence originally analyzed by the
13 examiners. The decision not to re-examine any physical evidence led a
senior Task Force attorney to characterize the scientists’ review, in an
August 1997 memorandum to the DAAG then overseeing the work of the
Task Force, as a “cursory paper review.” In documents we examined, that
senior Task Force attorney expressed concern to senior Department officials
about the process the FBI had designed, including the decision not to have
the physical evidence re-examined and the FBI’s stated intent to have
scientists review as many as 100 cases per day. There was no indication
from witnesses we interviewed or documents we reviewed, however, that
Department officials agreed with the views expressed by the Task Force
attorney or took issue with the FBI’s approach.
Through our file reviews and interviews, we found that the decision to
conduct a paper review was not viewed uniformly within the FBI as the most
appropriate or meaningful method for evaluating the examiners’ work. We
found that some Lab employees expressed their disagreement with this
approach, commenting that it “severely limited” the review project. In
particular, in a document that appears to have been drafted by an FBI
attorney and purports to summarize comments from a meeting with Lab
employees, the attorney’s notes state: “As a matter of practice, our
laboratory would never review the case work of another laboratory or
examiner solely on the basis of documentation (without conducting a re
examination of the items of evidence).”
Former FBI Lab personnel and the FBI-retained independent
scientists we interviewed also commented on the inherent limitations of
paper-only reviews. In particular, the FBI Deputy Section Chief of the
Scientific Analysis Section stated that the paper-only reviews were “the
reason why this process was really form over substance – there was an
inherent limitation in not having the physical evidence to review.”
Independent scientist Steve Robertson told us, “[W]hen it comes to hair
examinations . . . the only thing you have [are] the examiner’s handwritten
notes. There are no spectra, machine printouts, [or other analytical
data]. . . . It’s just what [the examiner] writes down.” Robertson stated that
the examiner “can write down almost anything [he] want[s] and say it’s a
hair match . . . and so there’s really no way, just from looking at written
notes, particularly for the hair exams” to determine if the examiner correctly
made a comparison. As explained further in this report, although some did
not regard the paper review as an effective means to provide a thorough
review of the Lab examiners’ work, it was ultimately sufficient to confirm, at
a minimum, that there were problems associated with some of the
examiners’ Lab analyses, reports, and testimony provided at trial.

We also found that the independent scientists were directed to review
the hair and fiber analyses in each case, considering the forensic techniques
in practice at the time the analyses were conducted by the Lab examiners,
rather than considering the forensic techniques in practice by the scientific
community at the time of the Task Force case review work. This direction
appears to have reflected the original intent of the Task Force scope but
failed to take into consideration compelling reasons to modify the review
based on findings and technological advances. Specifically, the FBI had
begun using mitochondrial DNA (mtDNA) analysis in conjunction with
microscopic hair comparisons in 1996, a technique which, used in
combination with microscopic analysis, can provide a stronger analysis than
microscopic hair comparisons alone.26
Thus, the independent scientists had no opportunity to consider
examinations of the physical evidence using the microscopic standards in
practice at the time of the Task Force case review or the aid of mtDNA
analysis.27 Moreover, with one exception – a Tennessee case in which the
mtDNA testing was ordered by the court and did not exclude the defendant
as a suspect – we did not discover any documents or learn from any witness
that the FBI or the Department considered re-testing evidence material to
the conviction of any of the defendants encompassed in its case review
using mtDNA analysis. Nor did our review reveal that any discussions took
place among senior management in the Department or the FBI concerning
broadening the scope of the case review to include other pre-1996 cases in
which microscopic hair comparison analysis was used alone.

26 FBI press release, “FBI Clarifies Reporting on Microscopic Hair Comparisons
Conducted by the Laboratory,” July 13, 2012, http://www.fbi.gov/news/pressrel/press
releases/fbi-clarifies-reporting-on-microscopic-hair-comparisons-conducted-by-the
laboratory (accessed February 28, 2014).

We recognize that the two scientists who reviewed Malone’s hair and fiber work
were not qualified to perform or interpret DNA analysis. Therefore, the FBI would have had
to contract with additional scientists if it had elected to include the review of physical
evidence in the Task Force case review – a step that would have added time and cost to the
overall process.
27

To implement the process it designed, the FBI developed a form and
corresponding guidelines for the independent scientists to use in each of
their case reviews. Known as the Independent Case Review Report
(independent report form), the independent report form required the
scientists to respond to five questions (see text box, below) with one of three
fixed responses: “Yes,” “No,” or “Unable to Determine.” The scientists were
required to provide
Independent Case Review Report Questions
comments for any
“No” or “Unable to
(1) Did the examiner perform the appropriate tests in a
Determine”
scientifically acceptable manner, based on the methods,
responses. The
protocols, and analytic techniques available at the time of
independent report
the original examination(s)?
included
(2) Are the examination results set forth in the laboratory
supplemental blank
report(s) supported and adequately documented in the
pages for the
bench notes?
scientists to
(3) Testimony consistent with the laboratory report(s)?
summarize their
(4) Testimony consistent with the bench notes?
findings or add
(5) Testimony within bounds of examiner’s expertise?
comments.
Appendix F
contains a blank Independent Case Review Report and the corresponding
Independent Review Guidelines.
In Chapter Three we describe the remaining elements of the Task
Force case review process, including the FBI’s retention of independent
scientists, the FBI’s transmissions of the scientists’ reports to the Task
Force, the Task Force’s transmissions of the reports to prosecutors, and the
prosecutors’ disclosures to defendants. We also discuss our findings related
to the timeliness of each of these stages.

CHAPTER THREE:

INDEPENDENT SCIENTISTS’ REVIEWS AND REPORTS

The timeliness of the independent scientists’ case reviews and the
content of the correspondence transmitting the independent scientists’
reports were critical to a successful implementation of the Task Force case
review process. We examined these two aspects in detail and describe our
findings below.
I.

Timeliness of Independent Scientists’ Reviews

In his initial January 1996 memorandum creating the Task Force and
in his subsequent correspondence, Acting AAG Keeney described in very
broad terms how the case review would proceed. We found no evidence,
however, of a target timeframe the Department, the Task Force, or the FBI
contemplated for completing each step of the case review process. To
measure the timeliness of the review as it actually occurred, we examined
specific time intervals in the review process after the Task Force referred
cases to the FBI.
As discussed below, we examined the FBI’s efforts to retain all
14 scientists (10 from independent agencies and 4 from the FBI Lab) for the
disciplines associated with the referred cases. We concluded that there
were significant delays associated with those efforts. We also calculated the
length of time between the date the Task Force referred each case to the FBI
and the date the FBI transmitted the independent scientists’ reports to the
Task Force. By studying these time intervals, we determined that for all
312 cases that the 14 scientists reviewed, it took the FBI an average of
380 days – more than a full year – to provide the Task Force a completed
independent scientist’s report.28
During our review, we learned that Malone had handled a
disproportionately greater number of referred cases than those involving any
other Lab examiner. It also became clear during our review that the two
independent scientists who reviewed Malone’s hair and fiber cases found the
most egregious errors. For these reasons, we narrowed most of our analysis
of the timeliness of the scientists’ reviews to the 162 hair and fiber cases
involving Malone. We determined there were other delays, in addition to
those associated with the retention of hair and fiber experts, leading up to
The shortest interval between a Task Force referral and an FBI transmittal of the
corresponding completed report was 28 days; the longest was 6 years and 3 months. For
the Malone hair and fiber cases alone, the average time from Task Force referral to the
FBI’s transmission of the scientists’ reports was 231 days.
28

the reviews of the cases Malone handled. To analyze the time that elapsed
between the Task Force referrals to the FBI of Malone’s hair and fiber cases
and the independent scientists’ reviews of those cases, we examined the
time allotted for those scientists to conduct their reviews, the FBI’s
“batching” of the scientists’ visits to the FBI to conduct their reviews, and
other delays between the scientists’ visits.
We also examined the length of time those scientists spent reviewing
each hair and fiber case handled by Malone. According to the time reported
by the scientists on the independent report forms, they completed each of
those reviews in approximately 1 hour, excluding the 16 hours required to
review the Boyle case. We concluded, therefore, that the delays between the
Task Force case referrals and the FBI’s transmission of the completed
independent scientists’ reports to the Task Force were not attributable to
the scientists.
As explained below, we concluded that the delays in the scientists’
reviews were largely attributable to the FBI for the following reasons: (1) the
agreed upon independent scientists’ review criteria and other factors caused
difficulties in identifying and retaining scientific experts; (2) the relatively
small number of expert scientists the FBI retained to conduct the reviews
and insufficient time the FBI allotted these few scientists to review the large
number of cases rendered the scientists unable to complete their reviews in
a timely manner; and (3) the FBI’s process of accumulating or “batching” of
numerous cases before arranging for the scientists to conduct the reviews
caused some cases to languish without review long after the Task Force
referred them to the FBI. In addition, there were significant, unexplained
delays between the two hair and fiber scientists’ visits to the FBI to review
cases. As discussed below, these delays in the scientific review process had
significant, adverse effects on some defendants’ cases.
We do not know whether the delays associated with the scientists’
reviews of cases involving examiners other than Malone were caused by the
same factors, other than those related to the retention of experts. Our
findings regarding the FBI’s treatment of cases involving Malone hair and
fiber cases, however, create concern that the FBI handled the reviews of the
other 12 examiners’ cases in a similar manner.
A.

Difficulties in Retaining Experts

A significant factor that contributed to the delay of the FBI’s retention
of independent scientists was the need to locate and engage experts with the
appropriate educational and professional qualifications and ability to obtain
security clearances for the review. This difficulty was exacerbated by the
small number of qualified scientists in certain disciplines and the need to
retain experts for each scientific discipline associated with the 13 criticized

examiners. As a result of these challenges, it took the FBI more than
6 years to hire all the scientists required to complete the reviews.
Former FBI and Task Force participants we interviewed recalled the
FBI’s difficulty in retaining scientists to perform the independent reviews.
According to those witnesses and the terms of the FBI’s solicitation for the
scientists, the scientists were required to: (1) have at least 5 years of
experience as a “senior court qualified examiner” in the specified disciplines;
(2) have provided forensic analysis services at the competency level of a
Senior Forensic Examiner; (3) have provided expert witness testimony in
court at least 100 times; and (4) obtain a security clearance at the Secret
level.
The limited availability of independent scientists due to competing
work responsibilities and, in the hair and fiber area, the few experts
employed in federal, state, and local crime labs, constituted additional
obstacles the FBI confronted in its effort to retain experts, according to the
former Deputy Section Chief of the Scientific Analysis Section of the FBI
Lab. In addition, a former FBI Assistant General Counsel involved in hiring
the scientists told us that the FBI did not seek scientific experts from
academia or private industry because the latter sources were not likely to
employ scientists with experience in law enforcement. Further, a few of the
witnesses we interviewed stated that some candidates viewed the FBI’s
contract requirements as too rigid and that other experts were simply not
interested in participating. Another former FBI Assistant General Counsel
also stated that outside labs were reticent to get involved in the case reviews
because of their work with the FBI and concerns about their future
relationships with the FBI.
The first set of cases the Task Force referred to the FBI illustrates the
impact on the timeliness of the case reviews resulting from the delays in the
FBI’s retention of scientists in the hair and fiber discipline. There were
31 hair and fiber cases involving Malone among the first 60 cases the Task
Force referred to the FBI for independent review in July 1998. The 31 cases
included 5 death penalty cases (involving 4 defendants).29 However, the FBI
had not yet hired scientists with hair and fiber expertise at the time of those
case referrals. The two hair and fiber scientists the FBI ultimately hired did
not begin reviewing cases until May 1999 (Visit 1) – more than 10 months
after the first set of case referrals. As a result, those 31 cases – plus an
additional 17 cases the Task Force referred to the FBI prior to Visit 1
(48 total) – all suffered delays in the timeliness of their review attributable to
the lengthy time taken to retain experts.
As previously noted, the defendants were Boyle, Bogle, Irick, and Jones (who was
a defendant in two of the five cases).
29

Below, we discuss the additional factors we identified as significant to
the delays in the scientists’ reviews of the 162 hair and fiber cases involving
Malone.
B.

Too Little Time Allotted for the Scientists to Conduct
Reviews

The FBI did not allot sufficient time for the two hair and fiber
scientists to review all the cases that awaited them during their scheduled
trips to the FBI. Put another way, the FBI failed to hire enough experts to
handle the number of cases awaiting review within the time period it allotted
for the scientists’ visits. Either way, the effect was the same: the scientists
were unable to review all cases awaiting them at the start of each visit.
We determined that two hair and fiber experts, Cathryn Levine and
Steve Robertson, reviewed the 162 Malone hair and fiber cases in 10 visits
to the FBI between May 1999 and August 2004. Robertson reviewed most
of the cases in 9 of the 10 visits because Levine resigned after the first visit
(for reasons we discuss in Chapter Four). Levine and Robertson were
employed by state crime labs in New York and Texas, respectively. Though
the contract between the FBI and the scientists’ employers did not stipulate
the number of cases to be reviewed or the amount of time the reviews would
require, the FBI told us in April 2014 that, prior to Levine’s departure, both
scientists were scheduled to travel to Washington to review cases for 1 week
every 4 months. However, as we describe below, 1-week visits were
insufficient for the scientists to conduct their reviews and we found delays
of over 14 months between some visits.
To illustrate the insufficient time allotted for Levine and Robertson to
conduct their reviews, Figure 4 (below) shows the hair and fiber cases
involving Malone that the scientists did not review during their visits.
During 8 of the 10 visits, the scientists were unable to finish reviewing all
the cases – up to 64 percent in 1 visit. Yet, the FBI neither extended the
time period allotted for the scientists to conduct the reviews nor retained
additional scientists after Levine resigned.
In addition, the FBI’s initial requirement that, with limited exceptions,
the reviews be conducted at FBI Headquarters in Washington compounded
the limitation on the scientists’ time available for case reviews.30 For Levine
and Robertson, who lived and worked in New York and Texas, this travel
The FBI’s contract with the scientists stipulated that all reviews be performed at
Headquarters “except as specifically directed by the FBI.” The contract stated that this was
due to “the nature of this work and for security purposes.” FBI, attachment to contract
with independent scientist Steve Robertson for the contract period November 1, 1998
through October 31, 1999, Section 6, Work Location and Equipment.
30

consumed valuable time that they otherwise could have spent conducting
the reviews had they initially been permitted to do so close to their
workplaces. The FBI’s travel requirement also limited the scientists’ ability
to complete the cases awaiting their review because they needed to travel
back home at the end of the prescribed review period. The FBI’s initial
requirement that the reviews be conducted in Washington seemed
unnecessary in view of the fact that the scientists’ reviews encompassed
access only to bench notes, lab reports, correspondence, and testimony, not
a re-examination of any physical evidence. It was not until travel became
more burdensome following the events of September 11, 2001, nearly
2½ years after the reviews began, that the FBI sent files to a field office
geographically convenient to Robertson so that the reviews could be
accomplished more quickly.

FIGURE 4: MALONE HAIR AND FIBER CASES NOT REVIEWED BY

INDEPENDENT SCIENTISTS DURING EACH VISIT, 1999–2004

70%

64%

60% 60%

60% 58%
50%
40%
30%
18%

20%
10%
0%

10%

Visit Visit Visit Visit Visit Visit Visit Visit Visit Visit
1
2
3
4
5
6
7
8
9
10

Percentage of Cases Not Reviewed 58%

Number of Cases Awaiting Review

Number of Cases Reviewed

Number of Cases Not Reviewed

64% 18%

10% 60% 60%

Notes: “Cases Awaiting Review” includes any cases not reviewed from the prior visit

plus new cases the Task Force referred to the FBI after the prior visit. “Cases

Reviewed” reflects cases the scientists reviewed during each visit. “Cases Not

Reviewed” reflects cases the scientists were unable to finish reviewing during a given

visit and deferred to a future visit. Some cases were reviewed more than once in more

than one visit and others awaiting review were later eliminated from the review scope.

For these reasons, the number of cases reviewed and not reviewed during each visit do

not always equal the number of cases awaiting review.

Source: OIG analysis.

These delays are best illustrated by examining Levine and Robertson’s
visits to FBI Headquarters in 1999. The Task Force had referred the first
31 hair and fiber cases to the FBI for review in July 1998. By the time the
FBI retained Levine and Robertson and brought them to Washington in May
1999, the Task Force had referred another 17 hair and fiber cases, bringing
the number of cases awaiting review to 48. During the 5 days the FBI
scheduled for Levine and Robertson to review cases, the scientists reviewed
20 of the 48 cases. Levine subsequently resigned from the project for
reasons we describe in Chapter Four, leaving only Robertson to review the
remaining 142 Malone hair and fiber cases. The FBI did not bring
Robertson back to Washington to review the remaining 28 cases for another
4 months (in September 1999), more than 14 months after the Task Force
had referred some of those cases to the FBI. Figure 5 shows the delays

related to the reviews of the first 48 Malone hair and fiber cases the Task
Force referred to the FBI.
FIGURE 5: DELAYS IN INDEPENDENT SCIENTISTS’ REVIEWS OF THE

FIRST 48 MALONE HAIR AND FIBER CASES THE TASK FORCE

REFERRED TO THE FBI

20 of 48 Cases Reviewed
During Visit 1

8%
(4 cases)

28 of 48 Cases not Reviewed
During Visit 1
6%
(3 cases)
Length of Delay from
Task Force Referral
Over 14 months

Over 10 months

Over 8 months
27%
(13 cases)

58%
(28 cases)

Over 3 months

Source: OIG analysis.

Among the defendants whose cases were not reviewed during the first
visit and were delayed by over 14 months were Brett Bogle and Bryan M.
Jones, both of whom were on death row. Also among the cases not reviewed
was that of John Norman Huffington, whose case awaited review of Malone’s
flawed testimony for over 14 months after referral to the FBI. We discuss
the Huffington case later in this chapter.
Similarly, during Robertson’s third 5-day trip to the FBI to conduct
reviews in November 2000, Robertson completed 20 out of 56 cases awaiting
his review, leaving a balance of 36 cases for the next visit, nearly 4 months
later. During his fourth visit in March 2001, Robertson completed 45 out of
56 cases, the balance of which was not reviewed until more than 7 months
later. We observed, based on our analysis of the timeliness of the Malone
hair and fiber reviews, that Robertson was able to complete the later reviews
of Malone’s cases more quickly than the earlier reviews.
C.

Delays Caused by Batching

The FBI’s process for independent reviews involved accumulating
numerous cases before arranging for the independent scientists to conduct
36

the reviews. This “batching” system meant that the FBI allowed cases for
which the Task Force had requested independent reviews to remain
unexamined until the FBI determined there were enough to warrant
bringing a scientist from his or her lab of employment to FBI Headquarters
to conduct the reviews. Because we focused most of our analysis of the
review timeliness on the 162 hair and fiber cases involving Malone (for
reasons described above), we did not calculate the review timeliness of cases
handled by the other 12 independent scientists the FBI retained. However,
in April 2014, the FBI provided for the first time documentation showing
that three independent scientists who worked in the Washington, D.C. area
reviewed cases involving examiners other than Malone on a more frequent
basis – approximately once per month in some instances – than the two
independent scientists who reviewed Malone’s hair and fiber cases.
In an example of the Malone hair and fiber case review delays caused
by batching, the Task Force referred 55 new Malone hair and fiber cases to
the FBI between January and October 2000, after Robertson’s second visit
in September 1999. Yet, it was not until November 2000 – nearly
14 months after the second visit – that Robertson returned to Headquarters
to start reviewing the new cases. When Robertson returned for the third
visit in November 2000, there were more cases for him to review than was
feasible in the time allotted, just as there had been during the first visit.
Robertson reviewed 20 cases and departed, leaving 36 cases still awaiting
review.
One case, Florida v. John Walter Smith, was not reviewed by a scientist
for 2 years and 7 months after the Task Force referred the case to the FBI.
Rather than arranging for Robertson to review the Smith case as soon as
possible after it was referred in July 1998, the FBI waited until more
referred cases had accumulated. Although one of the delays in this case
was attributable to a second independent review of wood particles
conducted after Robertson’s hair analysis review, we concluded that other
serious delays occurred as a direct result of both the FBI’s batching and the
insufficient time it allotted for scientists to review cases during each visit.
Even if the batching approach made sense from a resource
perspective, the approach caused significant delays in the review of many
defendants’ cases, the disclosure of the independent scientists’ reports, and
judicial determinations about whether the defendants should be released
from custody because they were wrongfully convicted based on tainted FBI
Lab analysis or testimony. By our analysis, the FBI batched cases for
review for 8 of Robertson’s 10 visits, causing many delays for defendants
whose convictions or sentences may have resulted from tainted Lab analysis
or testimony.

Two cases illustrate the adverse effects of this batching approach. In
United States v. Donald Gates, the defendant spent 27 years in prison and
was ultimately exonerated on the basis of DNA testing. Among the delays
contributing to the injustice in Gates’s case was that the FBI did not have
the independent scientist review Malone’s analysis in the case until
December 4, 2003, more than 7½ months after it received the request from
the Task Force. It took the independent scientist only 45 minutes to review
Malone’s Lab report and related case materials and to complete his report in
the Gates case.
In United States v. Bragdon, the defendant was convicted and
sentenced to 30 years on the basis of tainted FBI Lab analysis and false
testimony concerning fiber analysis Malone provided. Bragdon spent nearly
11 years in prison before his conviction was set aside on the grounds that,
without Malone’s unreliable testimony, the jury might have reached a
different verdict. In addition to other delays in this case, almost 14 months
elapsed between the Task Force’s referral of Bragdon’s case to the FBI
(January 31, 2000) and the date when the independent scientist reviewing
Bragdon’s case signed his completed report (March 14, 2001). It took the
independent scientist only 2 hours to review the case materials and
complete his report.31
In addition to the FBI’s batching of cases the Task Force sent for
independent review, we also found unexplained time lapses between
scientists’ trips to the FBI to review cases. The intervals between visits
ranged from 9 days to almost 14 months, when at least 1 and as many as
36 Malone hair and fiber cases awaited review. We were unable to
determine the reasons for these delays using the available documents and
witness interviews. Nor did we find any evidence of discussions among FBI
officials, the Task Force, or Department officials of the need to minimize the
time between scientists’ visits to the FBI, even after one of the scientists,
Levine, found egregious mistakes in Malone’s analysis. Specifically, Levine
determined in May 1999 that Malone’s analyses were scientifically
unsupportable and that his testimony was overstated and incorrect in the
capital cases of Boyle (executed prior to Levine’s review) and Billy Rae Irick
(currently on death row). Such early, serious findings should have
motivated the FBI to ensure that the scientists reviewed the remaining cases
as soon as the Task Force referred them.

The delay caused by the FBI’s batching was further compounded by the
prosecutor, who forwarded the report to the defendant’s counsel more than 4 months after
receiving it. The defendant’s conviction was vacated 19 months later.
31

II.

Transmissions of Scientists’ Reports

The internal FBI protocol for the independent scientists’ reviews called
for the FBI Lab, which managed the scientists’ visits, to send the completed
reports to the FBI OGC for review. The OGC then would transmit copies of
the reports to the Task Force. Upon receipt, the Task Force was to transmit
the reports to the prosecutors for their determination of whether the reports
should be disclosed to defendants or defense counsel. Below, we describe
our findings on how this process worked in practice.
A.

Transmissions from FBI to Task Force Not Timely

Based on our review of the available FBI and Task Force
correspondence, we believe the FBI OGC reviewed some or all of the
completed independent reports it received from the Lab, although no
witnesses we interviewed described such reviews. From our interviews with
former FBI OGC staff, we learned only that the Lab sent the reports to the
OGC and that an OGC administrative employee was responsible for copying
and transmitting the reports to the Task Force. We focused our analysis on
the transmission of reports in hair and fiber cases referred for independent
review and for which Malone had served as an examiner. We examined the
report transmittal letters and the transmission intervals in those cases.
Our analysis of the FBI transmissions to the Task Force was based on
160 Malone hair and fiber cases with available data.
We examined 30 OGC transmittal letters to the Task Force and found
that an OGC attorney signed all the letters and identified the cases for
which reports were enclosed. The first four such letters contained
references to the findings of the independent scientists’ reviews, such as
that they had identified problems or raised “issues of concern.” However,
the 26 subsequent letters from the OGC to the Task Force that we examined
made no such references to the independent scientists’ findings.
With regard to the timing of the FBI OGC’s transmission of the
scientists’ reports to the Task Force, we found that in the Malone hair and
fiber cases, the transmissions occurred on average within about 1 month of
the scientist’s signature on the completed reports. It took the OGC between
1 week and 2 months to transmit most (84 percent or 134 of 160 cases) of
those cases to the Task Force; the remaining 16 percent were transmitted
over a period that ranged from 9 weeks to over 2 years in one case (the
Smith case). We also noted that in the seven death penalty cases handled
by Malone, the FBI’s transmission of the completed reports to the Task
Force occurred on average almost 3 months after completion of the
scientists’ work. The reasons for the substantial delays in transmissions of
completed reports to the Task Force were unclear from Task Force and FBI
documents and our interviews. However, we found that for each of the

scientists’ 10 visits, the FBI OGC sent the completed reports to the Task
Force in batches, rather than when they were completed by the scientists at
the end of each visit.
B.

Transmissions from Task Force to Prosecutors Provided
Limited Information and Little Guidance

The protocol for the Task Force transmission of the scientists’ reports
to prosecutors, as articulated by senior Department management, was
described only in very broad terms. Although Department management
approved a standard letter for transmission to prosecutors, it did not
provide specific guidance to the Task Force regarding: (1) language to
address the findings of the scientists’ reports; (2) the necessity or
presumption, based on the findings and the law, that prosecutors disclose
the scientists’ reports to defendants; (3) whether, how, and when
prosecutors should inform the Task Force about their disclosure
determinations regarding the scientists’ reports and the reason for any non
disclosure; or (4) tracking the reports transmitted to prosecutors and any
disclosures of such reports by prosecutors.
As a general rule, the Task Force sent a transmittal letter with boiler
plate language notifying prosecutors of the report being transmitted and
requesting that the prosecutors determine whether disclosure of the report
to the defendant or defense counsel was warranted. The letters contained
no reference to the independent scientists’ findings about the Lab reports
or trial testimony provided in the defendant’s case. Nor was there any
language in the letters to alert prosecutors that the reports contained any
issues of concern warranting immediate attention. This was true in the
death penalty cases as well as in the non-death penalty cases. For example,
in the Bragdon case, the Task Force letter to the state prosecutor contained
standard language, which we determined from our analysis was approved
by senior Department officials. The letter stated:
Enclosed are the results of the independent scientific review of
the forensic work performed by FBI laboratory examiner
Michael Malone in the Bragdon case. The review was limited to
the laboratory file and trial transcript. Also enclosed for your
information is a copy of the laboratory report(s) reviewed by the
scientist.
Please review the enclosed documents, the OIG report, and any
other information you may have to determine whether the
report of the independent scientist should be disclosed to the
defendant or to the defendant’s counsel pursuant to Brady v.
Maryland and its progeny.

The Task Force letters to federal prosecutors also contained no
guidance about disclosure of the scientific report to the defendant or
defense counsel, other than simply enclosing the Brady Memorandum,
which was a general statement of well-established law. The letters did not
provide any case-specific guidance about the prosecutor’s obligations. The
transmittal letters to state prosecutors contained less information because
those letters generally did not include the Brady Memorandum or any other
disclosure guidance. Further, all the transmittal letters to prosecutors were
silent on a timeframe for making disclosures and conveyed no urgency for
making any required disclosures to defendants.
Through our file review, we found that for the first 10 months of
report transmissions, the standard Task Force letters requested that
prosecutors send copies to the Task Force of any disclosures made to the
defense. However, there was no deadline attached to the request and, after
the senior trial attorney on the Task Force left the Department in June
2000, the request for copies of any disclosures was omitted from subsequent
transmittal letters to prosecutors enclosing the scientists’ reports.
According to one former Task Force member we interviewed, the new Task
Force lead attorney decided to remove the language requesting copies of
disclosures to the defense, reasoning that because the Task Force had no
control over prosecutors and was not tracking disclosures, there was no
point to continue requesting copies of the prosecutors’ disclosure letters.
The Task Force did receive copies of a limited number of letters from
prosecutors indicating they had disclosed the scientists’ reports to
defendants or defense counsel. However, according to former Task Force
members we interviewed, the Task Force did not generally follow up with
prosecutors from whom it did not receive disclosure notifications to
determine whether a disclosure had been made. For this reason, after the
prior Task Force senior attorney left the Department in June 2000, the Task
Force received few notifications from prosecutors and was unable to track
disclosures to defendants in the vast majority of cases.
Our file reviews and interviews showed that the Task Force members
believed they had an important role but limited authority when it came to
ensuring that prosecutors satisfied their legal disclosure obligations in cases
where the independent scientist found that the Lab analysis or testimony
was problematic. Although we found no memoranda addressing the
authority delegated to the Task Force, the former Task Force members we
interviewed uniformly stated they believed, based on statements from senior
management, that they did not have authority to tell prosecutors, federal or
state, how to handle their cases, including providing guidance on their
disclosure obligations. Instead, they were told by senior management that
the Task Force’s role was to facilitate the identification of cases involving the
13 examiners, to coordinate with the FBI by providing cases for the
41

independent scientists’ review, and to transmit the independent scientists’
reports to the prosecutors. Upon completing those duties, the former Task
Force members told us, they believed the Task Force would have fully
discharged its responsibilities.
With regard to the timeliness with which the Task Force transmitted
the scientists’ reports to prosecutors, we found that in most cases
(79 percent or 125 of 158 cases with available data), the Task Force
transmitted the reports to prosecutors in 3 weeks or less – most commonly
between 8 and 14 days – of receiving them from the FBI.32 However, there
were some exceptions, including one death penalty case (Irick), where the
Task Force did not transmit the report to the prosecutor until more than
10 weeks after receiving it from the FBI. We also learned from one former
Task Force member we interviewed that, although the Department did not
expect the Task Force to follow up with federal or state prosecutors to
ensure receipt of the scientists’ reports, or to track disclosures made by
prosecutors to defendants, the Task Force ensured that the prosecutors
received the reports it sent. This witness stated that the Task Force staff
called the prosecutors in advance of sending the reports and sent the
packages by Federal Express so that the delivery could be tracked and
confirmed. According to this witness, after these confirmations, the Task
Force took no further action to communicate with the prosecutors about
whether disclosures of the independent reports were made.
C.

Prosecutors’ Disclosures to Defense Counsel Not Tracked

With regard to the prosecutors’ disclosures of the independent
scientists’ reports to defendants or defense counsel – a critical step resulting
from the work of the Task Force – we found very little documentation in the
Task Force files evidencing disclosure to defendants. As a result, we had a
limited basis on which to determine whether and when prosecutors
disclosed the scientists’ reports. Our review established that there were
402 defendants for whom the independent scientists completed reports. We
identified evidence of confirmed disclosures by prosecutors to only
15 defendants. For 13 of those disclosures, the Task Force files included
copies of transmittal letters from prosecutors to defense counsel. In two
instances, court records established that the defendants received copies of
the independent report. We provided the list of 402 defendants to the FBI
and the Department in September 2013 to enable them, without awaiting
completion of this report, to begin remedial action we anticipated
recommending. The list is shown in Appendix H.

32 Our analysis of the Task Force transmissions to prosecutors was based on
158 Malone hair and fiber cases with available data.

Additional defendants may have received copies of the independent
scientists’ reports, but we were unable to confirm disclosure from our review
of the Task Force’s files. For example, we found correspondence from
prosecutors and Task Force members’ notes memorializing conversations
with prosecutors who expressed their intention to disclose the reports to
43 additional defendants or defense counsel. However, the Task Force files
contained no documentation confirming transmission or receipt by the
defendants or their counsel of those reports.
We also found two instances in which prosecutors definitely did not
disclose the independent scientists’ reports to defendants. In the wellpublicized Gates case, the U.S. Attorney’s Office for the District of Columbia
failed to transmit Robertson’s report documenting Malone’s inaccurate and
scientifically unreliable analysis.33 In December 2009, approximately
6 years after the Task Force transmitted the report to the prosecutor,
Gates’s conviction was vacated. Gates was exonerated on the basis of DNA
testing, requested and performed before Gates or his counsel learned of
Robertson’s report, which Gates’ counsel received later in response to a
Freedom of Information Act request to the FBI. Gates’s counsel wrote in
Gates’s Motion to Vacate Convictions on the Ground of Actual Innocence
that the U.S. Attorney’s Office never notified Gates or any of his past
defense counsel of Robertson’s report.
In the Huffington case, the defendant learned of Robertson’s report,
which described Malone’s testimony as false, misleading, and unscientific,
when an investigative reporter informed his defense counsel of the
independent scientist’s report more than 12 years after the Task Force
transmitted the report to the state prosecutor. In a court filing in support of
Huffington’s petition for a finding of actual innocence on the basis of DNA
evidence, Huffington’s counsel asserted that neither he nor his client had
been aware of Robertson’s report until the reporter contacted them. The
filing stated that Huffington, through counsel, had “for many years”
attempted repeatedly without success to obtain information from the FBI
regarding Malone’s hair analysis and that the FBI had claimed it was unable
to locate any relevant files. Yet, Task Force files reflect that the Task Force
sent a copy of Robertson’s report to the state prosecutor 1 week after the
FBI transmitted the report to the Task Force.

Although Gates was most harmed by the failure by the U.S. Attorney’s Office for
the District of Columbia to forward to Gates’s counsel the independent scientist’s report,
the FBI contributed to the delay in Gates’s ultimate release because it took over 7½ months
to complete the independent report and return it to the Task Force. By the time the Task
Force forwarded Gates’s report to the prosecutor, over 9 months had passed since the Task
Force referred the case to the FBI for independent review.
33

We also found that while some prosecutors disclosed the independent
reports to the defendants they prosecuted, they did not do so immediately
after receiving the reports from the Task Force. For example, in the case of
Anthony Bragdon, the Florida state prosecutor waited 4 months before
sending the Robertson report to the defendant. Bragdon’s conviction was
reversed on appeal on the basis of the independent report; he had served
11 years in prison. Thus, in addition to the tainted convictions of
defendants like Gates and Bragdon, the failure of the prosecutors to
transmit the reports to these defendants in a timely fashion delayed these
defendants’ appeals and extended their incarcerations.
Finally, it was also important for prosecutors to disclose reports to
those defendants already released from prison because of the potential
collateral damage those defendants suffered if, in fact, they would not have
been convicted but for the unreliable Lab analysis or testimony used against
them. Those defendants should have been notified in a timely way so that
they could pursue their legal remedies.
There was a lack of evidence in the Task Force files that the
independent scientists’ reports were consistently provided to defendants. In
addition, we found cases firmly evidencing non-disclosure of reports. The
failure to disclose any reports that found flawed Lab analysis or testimony
deprived those defendants of the opportunity to challenge their convictions
on the basis of potentially unreliable evidence.
We asked each Department and Task Force witness we interviewed to
explain why the Task Force failed to consistently document prosecutors’
completion of this critical step in the case review process. Former Task
Force members we interviewed all stated that senior Department
management never directed the Task Force to follow up with prosecutors to
ensure that necessary disclosures had been made or to track the
prosecutors’ disclosures. Rather, Task Force members told us, as we
discussed above, that senior Department managers limited the final role
and authority of the Task Force to transmitting the completed independent
scientific reports to prosecutors. We found no other information in the Task
Force’s files to explain why the Department did not follow up with
prosecutors about whether disclosures were made.
In Chapter Four we discuss the forensic analysis and testimony by
former FBI Lab Hairs and Fibers Unit examiner Michael Malone. We
describe the independent scientists’ findings about Malone’s work and how
the FBI and the Department responded to those findings.

CHAPTER FOUR:

FORENSIC ANALYSIS AND TESTIMONY

BY MICHAEL MALONE

Of the 13 FBI Lab examiners whose work the Task Force reviewed,
1 examiner, Michael Malone, repeatedly created scientifically unsupportable
lab reports and provided false, misleading, or inaccurate testimony at
criminal trials. At the height of his career with the FBI, Malone was a senior
examiner for the Hairs and Fibers Unit and handled a disproportionately
large number of cases. We include this discussion to illustrate the
significance of the problems that became known to the Task Force and the
FBI about Malone’s work and testimony in criminal cases. The stark
revelations about Malone resulting from the Task Force’s work, and the lack
of a corresponding response by the Department, the Task Force, or the FBI
exposed a major deficiency in the Department’s implementation of the Task
Force’s mission.
I.

Background

Michael Malone earned a Bachelor’s Degree from Towson State
University in Baltimore, Maryland in 1968 and then became a high school
teacher where he taught biology and general science in Maryland, Virginia,
and Florida. In 1970, Malone earned a Master’s Degree in Biology from
James Madison University in Harrisonburg, Virginia. He joined the FBI in
the same year as a Special Agent. In 1974, Malone transferred to the Hairs
and Fibers Unit in the Lab, then located at FBI Headquarters in
Washington, D.C., where he received training to become a hair and fiber
examiner. Upon completion of his training, Malone was designated a
Forensic Microscopist specializing in trace evidence. In that capacity,
Malone analyzed evidence as the primary examiner, testified about his
analyses in criminal trials, and served as a “confirming examiner” of his
colleagues’ hair and fiber analyses.
Malone became well known to many judges and the law enforcement
community because of his forensic work on several high profile cases,
including those of Jeffrey MacDonald, a Green Beret Army surgeon
convicted of murdering his wife and children at Fort Bragg, North Carolina,
and John Hinckley, who attempted to assassinate President Ronald Reagan.
In Florida, Malone was instrumental in helping to achieve multiple capital
convictions of a serial killer, Robert (Bobby) Joe Long.
Problems with Malone’s analyses and testimony began to surface
publicly in Florida, starting in the late 1980s, when several courts reversed
murder convictions on the grounds that microscopic hair comparisons were
45

insufficiently reliable to constitute a basis for positive personal identification
without other evidence to link a defendant to the murder with which he was
charged. In several of these Florida cases, Malone had been the hair and
fiber expert who conducted the forensic examinations and testified at trial.
In one murder case, Florida v. Jackson, the court also found that Malone’s
hair analysis was unreliable because it failed to identify hair strands of
other potential suspects found on the victim’s body and submitted by local
authorities for examination.
Malone’s credibility also came under attack as the result of his
testimony in 1985 before the Investigating Committee for the Judicial
Council of the Eleventh Circuit regarding the proposed impeachment of
then-federal Judge Alcee Hastings. In particular, William Tobin, an FBI Lab
metallurgy expert whom OIG investigators interviewed for the 1997 Report,
alleged that Malone had testified falsely, outside his expertise, and
inaccurately. The OIG expanded the scope of its 1994–1997 review to
include Tobin’s allegations about Malone’s testimony and found that Malone
had testified falsely before the Committee when attesting that he had
performed a tensile test which he had not done.34 The OIG also found that
Malone had testified “outside his expertise and inaccurately” concerning the
tensile test results. The OIG recommended in the 1997 Report that the FBI
assess the need for disciplinary action against Malone for this misconduct
and monitor his testimony in future cases. However, the FBI did not take
disciplinary action against Malone, deferring such a decision to the
Department. The Department also elected not to take any action against
Malone. By the time the OIG issued its report in 1997, Malone had already
left the Lab to return to work as a Special Agent in the field. He was
assigned to the Norfolk, Virginia office. Malone retired from the FBI in
1999.
Just 3 years after his retirement, however, Malone began conducting
background investigation services for the FBI. In May 2014, the OIG
learned, and the FBI confirmed, that since 2002, Malone had been actively
employed by Background Investigative Contract Services, an FBI contractor,
performing background investigations. After we brought Malone’s
employment to the attention of the FBI and the Department, the FBI
reported that, effective June 17, 2014, Malone’s association with the FBI
was terminated. Although not the focus of this report, we believe that
Malone’s employment as an FBI contractor was a consequence of the failure
of the FBI and the Department to discipline Malone for the misconduct we
identified in our 1997 Report.

A tensile test measures the force required to break material, such as a leather

strap.

II.

Findings of Independent Scientists Regarding Malone’s Forensic
Evidence Analysis and Testimony

In 1999, the FBI hired two hair and fiber experts, Cathryn Levine and
Steve Robertson, to serve as independent scientists for the Task Force
review.35 Both scientists began their reviews on May 17, 1999. After the
first week’s review, however, Levine withdrew from the project, unhappy
with the way the FBI had designed the review and the terms of her
engagement. Levine expressed these concerns in a resignation letter to the
FBI and in our interview with her (see text box below). The findings and
conclusions Levine reached regarding the cases she reviewed during her
week at FBI Headquarters were consistent with those reached by Robertson
who, thereafter, reviewed all of the Malone hair and fiber cases the Task
Force referred to the FBI for independent review. The FBI did not hire
another hair and fiber expert scientist to take Levine’s place, despite
comments from Levine and Robertson during an FBI debriefing that it had
been helpful to work in tandem for the purpose of consultation.
Cathryn Levine’s Main Reasons for Withdrawing from
the FBI’s Team of Independent Reviewers

1. The FBI’s lack of standard operating procedures governing examiners’ work at

the time prevented the independent scientists from verifying the examiners’

analysis methods; the examiners’ bench notes did not include information on

methods used. Levine said the FBI’s case review form should have asked

whether the testimony was accurate instead of whether the testimony was

consistent with the bench notes.

2. The FBI’s policy of not permitting the independent scientists to retain copies

of their case notes or their completed case review forms compromised her

independence and would expose her to criticism when she would inevitably

have to testify in future litigation of the cases she reviewed.

3. The FBI’s requirement that independent scientists not disclose their review

findings created a “moral and ethical dilemma” by preventing Levine from

reporting Malone to the ethics committee of the forensic science board to

which they both belonged.

According to Levine and Robertson, due to the inherent limitations of
the paper-only reviews and the fact that the FBI Lab was not accredited
until 1998, they inquired about established Lab policies or protocols that
guided the Unit examiners and that Robertson and Levine could use to
evaluate the Lab examiners’ compliance. The head of the Hairs and Fibers
Unit informed them that no policies or protocols existed within the FBI at
the time Malone and his colleagues performed their analyses of the cases
35 The FBI hired these experts through their state crime laboratories. The scientists
were not personally compensated by the FBI for their work.

Robertson and Levine were reviewing.36 The lack of policies or protocols
rendered it extremely difficult for the independent scientists to assess the
consistency or accuracy of the scientific approach used by Malone. The
same would have been true had the scientists been asked to review the
forensic work of any other examiners in the Hairs and Fibers Unit.
As mentioned above, of the 312 cases the independent scientists
reviewed for the Task Force, 162 cases contained hair and fiber analyses
performed by Malone, relating to 172 defendants. Approximately one-third
of those 162 cases also included testimony provided by Malone. According
to the former Deputy Section Chief of the FBI Lab’s Scientific Analysis
Section, Malone handled significantly more cases than any other Hairs and
Fibers Unit examiner, causing many examiners in the Lab to question the
integrity of Malone’s methodology. The fact that the number of cases
handled by Malone and reviewed by the independent scientists was
disproportionate to the number of cases handled by the 12 other Lab
examiners subject to the Task Force review may also have reflected other
factors. For example, the Tampa, Florida, State Attorney’s Office had
requested that the Task Force refer all cases in his district involving
Malone’s work to the FBI for review by the independent scientists.
We determined that the independent scientists deemed approximately
96 percent of the Malone cases to be problematic in one or more areas
corresponding to the five questions on the case review form and as defined
by the Independent Review Guidelines the FBI provided to the scientists at
the start of the case reviews. The guidelines are in Appendix F. In
summarizing his reviews of Malone’s cases, Robertson, who reviewed over
150 Malone cases, told us the most significant, recurring problems with
Malone’s work were:
1. His testimony that an individual hair could be determined to
belong unequivocally to only one person in the world, based solely
on microscopic analysis, had no scientific basis at the time Malone
testified. Robertson described Malone’s testimony to this effect in
many cases as “outlandish.”
2. His testimony to the statistical probability of a match was
inappropriate in hair analyses based solely on microscopic
analysis.
At the outset of this review, the FBI did not produce in response to our request
any FBI manuals or other internal guidance concerning hair or fiber analysis. However, we
subsequently located on the Internet a 1977 FBI manual that specifically addressed how to
analyze hair and testify in court about findings derived from hair microscopy analysis:
John W. Hicks, Special Agent, Microscopy of Hairs: A Practical Guide and Manual, Federal
Bureau of Investigation, U.S. Department of Justice (Jan. 1977).
36

3. His conclusions, as described in his reports, had unclear and
unsupported bases.
4. His documentation was inadequate and often indecipherable.
5. His testimony included analysis that was not documented in his
lab report or bench notes.
Levine and Robertson found serious and consistent flaws in Malone’s
work. They concluded that Malone had failed to use appropriate tests in a
scientifically acceptable manner and that Malone’s testimony was often
unsupportable on the basis of his bench notes, lab reports, or accepted
standards in the scientific community. Further, they told us that had the
FBI Lab been accredited at the time Malone conducted his forensic work
and provided testimony, Malone’s work would not have satisfied the
standards then required of accredited hair and fiber laboratories (discussed
further below). Finally, the scientists concluded that Malone testified
outside his area of expertise in almost half of the cases involving testimony.
We analyzed the independent scientists’ responses to the five
questions using a sample of 50 reports concerning hair and fiber cases
handled by Malone. The scientists concluded in 94 percent (47 of 50) of the
cases that either the appropriate forensic tests were not conducted or it was
impossible to determine whether Malone conducted the appropriate tests
(Question 1). Similarly, in the same percentage of cases, the scientists
concluded that the results Malone described in his lab reports were not
supported by his bench notes (Question 2). Testimony was available for the
independent scientists’ review in 26 of the 50 reports we analyzed. The
scientists concluded that in 54 percent (14 of 26) of the cases, Malone’s
testimony was inconsistent with his lab reports (Question 3) and that in
65 percent (17 of 26) of the cases, his testimony was inconsistent with his
bench notes (Question 4).
With regard to whether Malone’s testimony in cases involving both
hair and fiber analyses was within the bounds of his expertise (Question 5),
Levine and Robertson found that Malone’s testimony was consistently
overstated and much stronger than either his lab reports or bench notes
supported, resulting in misleading and inaccurate testimony. Moreover,
Malone testified in some cases to conclusions that were outside his area of
expertise – the same criticism we noted of Malone in the OIG Report.
With regard to fiber analyses, the scientists wrote in their reports that
they did not believe Malone understood the appropriate use and limitations
of an instrument known as a microspectrophotometer and, therefore, that
he often came to scientifically inaccurate conclusions in his reports and
testimony. For example, testifying about carpet fibers in the 1994 trial
involving Bryan M. Jones, who was convicted of murder and sentenced to

death, Malone stated that “we have a machine that can get it down to one
specific dye from all others . . . [and] they had exactly the same dyes.”
Robertson wrote in his independent report that Malone’s statement was
incorrect and misleading: “The microspectrophotometer is used to measure
color. Articles published in the Journal of Forensic Sciences [the
professional scientific journal of the American Academy of Forensic
Sciences] in 1988 and 1990 specifically point out that spectra cannot be
used to identify dyes – they only allow determination of color.” Robertson
also wrote in an additional report that Malone failed to use other fiber tests
available to him at the time of his lab work.
Levine and Robertson also told us that Malone’s notes regarding both
fiber and hair analyses he performed were inadequate. For example, Levine
told us that Malone’s bench notes about his fiber analysis did not indicate
which tests he performed, such as how he identified a particular fiber.
Without knowing the specific tests Malone used to conduct his
examinations – and without conducting her own forensic analysis of the
evidence – Levine could not verify the accuracy of Malone’s analyses.
Robertson also told us that hair comparisons are typically described in an
examiner’s handwritten notes. However, Malone’s notes often lacked detail
or were indecipherable, leaving Robertson no choice but to select the
“unable to determine” response on the independent report form.
Similarly, whereas accreditation standards would have required that
all notes be in permanent ink, initialed, and dated by the examiner,
Malone’s notes were in pencil and not dated. According to the former
Deputy Section Chief of the FBI Lab’s Scientific Analysis Section, there were
no peer reviews of hair and fiber examinations performed by the FBI Lab,
also required by the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board standards.37 Robertson stated
that there was no evidence of annual monitoring of testimony provided by
Hairs and Fibers Unit examiners at trial – yet another Accreditation Board
requirement (then and now). In addition to a lack of documentation
standards, the FBI Lab’s Hairs and Fibers Unit did not adhere to its own
standards and protocols for hair analysis – the 1977 FBI manual we located
and cited above. We did not find any standards or protocols for fiber
analysis.38

In the course of our file review, we identified a limited number of documents
reflecting confirmations of hair and fiber examinations, but the documents did not indicate
the nature of the reviews conducted.
37

38 The FBI Lab had not yet been accredited by the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board at the time the first OIG Report was
published in April 1997. In response to the 1997 OIG Report recommendations, the FBI
Lab applied for accreditation in December 1997 and received the accreditation in
(Cont’d.)

In their independent reports of Malone’s hair and fiber analysis and
testimony in four cases (including two capital cases), both Levine and
Robertson documented
Excerpt from Independent Scientist Cathryn
Malone’s work as
Levine’s Findings on Malone’s Trial Testimony
particularly unreliable,
in Boyle
inaccurate, and
unscientific. In Texas v.
Malone “does not understand this [microspectro
Boyle, a death penalty
photometer] instrument – its limitations and/or its
inability to identify certain dyes. The testimony does
case in which the
not support that he understands this instrument.”
defendant was executed
4 days after the OIG
“[T]his testimony would not be generally accepted as
Report was published
scientifically accurate by the majority of hair and
and 2 years before
fiber examiners.”
Levine’s independent
— Boyle Independent Report, pages 7-8.
review in 1999, Levine
noted many serious
problems with Malone’s analysis and testimony. Levine answered “no” to all
five questions on the independent report form and provided eight pages of
detailed commentary (see text boxes above and in Chapter Two). In
addition, she wrote 18 pages of notes about the case to support her
findings, all of which were transmitted to the Task Force. In total, Levine
spent 16 hours reviewing Malone’s work and testimony in the Boyle case.
Among her findings, Levine noted that the conclusions Malone reached
when comparing nylon and acrylic fibers (using microspectrophotometer
data) were unacceptable because the comparisons lacked supportable
documentation. Levine noted a misidentification of fibers in another
evidence sample in the case and recommended that the fibers be re
examined to clarify the issue. She also wrote that Malone’s trial testimony
about his fiber findings was overstated and incorrect.
With regard to Malone’s testimony in the Boyle case about hair
comparisons, Levine found that Malone’s statement about the “uniqueness”
of hair was without scientific basis and that his statement “that only on
2 occasions had he found similar hair in the 10,000 people he [had]
examined” was confusing and misleading. Levine further wrote that
Malone’s testimony in Boyle that “at least 15 characteristics are needed for
a hair comparison” was scientifically unsupportable, and she took issue
with testimony in which Malone claimed to have conducted certain
examinations which were, in fact, conducted by a technician in the Lab.
Such testimony was both inaccurate and inconsistent with Malone’s bench
notes, she wrote. In Boyle, the Task Force requested a materiality
September 1998. The FBI maintains, and we have no basis to question, that there were no
universally accepted standards and protocols approved by the scientific community at the
time of Malone’s examinations.

determination from the prosecutor, who responded that but for Malone’s
testimony, Boyle would not have been convicted of the capital offense that
rendered him eligible for the death penalty.
In another death penalty case, that of Billy Rae Irick, who is still on
death row, Levine wrote about Malone’s hair analysis conclusions as
reflected in his lab report and explicitly found that he had omitted
exculpatory evidence:
The [Lab] report [references] ‘some individual microscopic
characteristics.’ The word ‘individual’ is confusing and may be
misleading. Examples exist (see [Malone’s] handwritten notes)
where exculpatory evidence is not in [the Lab] report. Hairs
that may be exculpatory are identified in notes and testified to –
but they are omitted from [lab] report . . . . Omitting possible
exculpatory evidence is problematic and possibly unethical.
In Irick, the Task Force transmitted Levine’s report to the prosecutor
who, in turn, disclosed the report to defense counsel. The defendant took
broad discovery and unsuccessfully sought a new trial on the basis of the
independent scientist’s report.
Robertson’s reviews of Malone’s cases resulted in similar findings. In
the Gates case, the file provided to Robertson for review did not contain
testimony, so his review was limited to bench notes, lab reports, and letters
from the submitting law
Excerpt from the Independent Scientist Steve
enforcement agencies.
Robertson’s Findings on Malone’s Bench Notes
Robertson indicated that
in Gates
he was unable to
“The [lab report] results are not adequately documented
determine whether
in the [bench] notes. The notes are not dated and are
Malone performed the
in pencil instead of ink. Abbreviations are used that
appropriate tests in a
are hard to interpret. There is documentation that
scientifically acceptable
hairs were recovered from suspect [Gates’s] clothing,
manner due to
but there is no documentation that hairs were
recovered from the victim’s items. Documentation is
inadequate
lacking that explains if the examiner looked only for
documentation (see text
Negroid hairs on Q1-Q4 or if there were other hairs on
box).
them. If other hairs were detected, one must wonder if
they are the victim’s hairs.”

In the review of
another case, that of
— Gates Independent Report, page 3.
Derrie Nelson,
Robertson’s comments also echoed those of Levine in her report on the
Boyle case. In particular, Robertson wrote that Malone had “testified that
hair must have at least 15 characteristics to have value for comparison.
This has no scientific basis known to this reviewer.” In support of

Robertson’s comment above, we found in our review of the January 1977
FBI manual on hair microscopy the following statement:
It is pointed out that hairs do not possess a sufficient number
of unique microscopic characteristics to be positively identified
as having originated from a particular person to the exclusion of
all others.39
In cases involving hair analysis, Robertson also found that Malone
frequently and inappropriately testified to the probability of a match when
there was no scientific basis for doing so. In his independent report on the
Nelson case, Robertson commented:
In response to the question, “What percentage of the Negro
population would have hairs with all 20 of these
characteristics?” examiner testified “one in 5,000.” The same
answer was given to the same question concerning Caucasian
hair . . . . While the examiner bases his answer on his
experience, there has been no published scientific study to
confirm this. In fact, the only published study concerning
probability of a hair match has been criticized and debated and
does not have the support of the forensic community.
According to a document the FBI provided to us summarizing a
debriefing of Robertson at FBI Headquarters in September 1999, the experts
recommended that the physical evidence in some of the Malone cases be re
examined, if available. Our review of the Task Force files and interviews of
former Task Force members and FBI personnel revealed, however, that no
re-examinations of physical evidence were conducted, whether
recommended by the independent scientists or requested of the Task Force
by a prosecutor.
III.

FBI and Department Response to Independent Scientists’
Findings Regarding Malone’s Analyses and Testimony

Our file review and interviews of former Task Force members and FBI
personnel made clear that beginning in May 1999 and July 1999,
respectively, the FBI and the Department learned that the independent
scientists were finding almost all of the cases involving hair or fiber evidence
analyzed by Malone to be seriously flawed. The Boyle case was one of the
first of such cases. Yet, we found no indication in the thousands of Task
Force and FBI documents we reviewed or from the interviews we conducted
John W. Hicks, Special Agent, Microscopy of Hairs: A Practical Guide and
Manual, Federal Bureau of Investigation, U.S. Department of Justice (Jan. 1977), p. 41.
39

to suggest that the FBI or Department ever considered submitting for
independent review all cases handled by Malone where the evidence was
material to the conviction, regardless of the length or nature of sentence
imposed or the date of conviction. Nor was there any documentation to
suggest that the FBI or Department considered reviewing all cases Malone
had handled (in any capacity) at any time that had been eliminated from the
Task Force review process for one or more of the categories listed in
Chapter Two or for other reasons listed in Appendix C.40
Similarly, it appeared that neither the FBI nor the Department
considered the potential for a more widespread set of problems in the Hairs
and Fibers Unit, which had handled many cases prior to 1985, having
opened sometime in the 1960s. Nor did the FBI or the Department consider
the wisdom of expanding the scope of the review to include other examiners
in the Unit.41 Our research revealed that between 1975 and 1996, at least
seven FBI Hairs and Fibers Unit examiners testified to the probability of a
hair match using testimony very similar to that which Malone so frequently
offered at trial. Finally, we found no evidence that any consideration was
given to disclosing broadly, to prosecutors or defendants, the nature and
extent of the problems with Malone’s analyses and testimony.
To ensure that all defendants are notified about deficiencies in the FBI
Lab analysis or testimony in their cases – whether by Malone or another
examiner, including cases reviewed and not reviewed by the Task Force – we
make several recommendations to the Department. Chapter Seven contains
a full list of those recommendations.

Malone also analyzed and testified about plant evidence in an unknown number
of criminal cases. Our file review reflected that the Task Force referred only five Malone
plant cases to the FBI for review by an independent scientist. The independent plant
scientist the FBI retained found that Malone did not perform appropriate tests in a
scientifically acceptable manner and that Malone testified outside the bounds of his
expertise.
40

41 We found one Criminal Division memorandum referencing “the specter that the
other examiners in the [Hairs and Fibers] unit were either as sloppy as Malone or were not
adequately conducting confirmations [of Malone’s work]. This issue has been raised with
the FBI but not resolved to date.” Maureen Killion, Director, Office of Enforcement
Operations, Criminal Division, memorandum to Michael Chertoff, Assistant Attorney
General, Criminal Division, through John C. Keeney, Principal Deputy Assistant Attorney
General, Criminal Division, Pending Considerations Regarding the Criminal Division’s Case
Review Related to the Inspector General’s Investigation and Report on the FBI Laboratory,
July 11, 2002, footnote 1. It was unclear from Task Force and FBI documents we reviewed
and our interviews whether other Hairs and Fibers Unit examiners had received the same
training and applied the same standards, to the extent they existed, as those received and
applied by Malone.

In Chapter Five we discuss the death penalty cases that fell within the
Task Force’s review scope. We describe how the Task Force and the FBI
identified and reviewed captial cases and how the Task Force notified
prosecutors of the independent scientists’ reviews of those cases.

CHAPTER FIVE:

DEATH PENALTY CASES

The OIG closely examined the capital cases falling within the scope of
the Task Force’s review. We identified two serious deficiencies in the way
the Department and the FBI approached these cases.
First, following publication of the OIG Report in April 1997, and
before any defendants on death row had been identified, the Department did
not provide immediate notice to the relevant prosecuting authorities of the
potential need to stay the imminent executions of defendants whose capital
convictions may have been tainted by FBI Lab analysis and testimony. As a
result, the executions of at least three defendants, Benjamin Boyle, Michael
Lockhart, and Gerald E. Stano, were carried out prior to a case review by
the Task Force.42 Boyle was executed just 4 days after the OIG Report was
published.
Second, the Department and the FBI did not design and implement
case review procedures to ensure that the handling of capital cases would
be the Task Force’s top priority, despite recommendations from a senior
Task Force attorney to a senior Department official that they do so. As a
result, the FBI identified capital cases no differently from non-capital cases
and with no particular urgency. It took the FBI almost 5 years, from 1996
through 2001, to identify all the death penalty cases falling within the
1985–1996 timeframe the FBI and Department had established for cases
subject to review. Eventually, the FBI identified 64 defendants on death row
whose cases involved analysis or testimony handled by 1 or more of the
13 examiners.
In our view, these two deficiencies show that the Department and the
FBI failed to recognize the priority that the Task Force should have given to
capital cases and to adjust the Task Force’s priorities as information
became known about the effects of tainted Lab analysis and testimony on
death penalty cases. Moreover, these deficiencies resulted in a lack of
uniformity and urgency in the way capital cases were treated by the Task
Force and the FBI. For example, case-specific determinations about the
reliability of the Lab analysis and testimony were made in some capital
cases but not others, and delayed notice or no notice at all was provided to

According to the FBI, although Stano and Lockhart were executed before the
Task Force reviewed their cases, the OIG-criticized examiner who analyzed the evidence in
those cases did not find any positive associations linking either of the defendants to the
crimes for which they were convicted and executed.
42

defendants convicted of capital offenses about the Task Force’s case review
process.
I.

Failure to Provide Immediate and Broad Notice

In our file review and witness interviews, we found no evidence that
immediately after publication of the 1997 OIG Report and before any death
penalty cases were identified, the Department provided, or even considered
providing, notice to relevant state and federal prosecuting authorities of the
potential that death row inmates had been convicted on the basis of tainted
Lab analysis or testimony. No steps were taken or considered to reduce the
likelihood that a condemned defendant could be executed without a case
review. In particular, we found no evidence that anyone in the Department
or the FBI contacted governors’ offices or state attorneys general, or
attempted to swiftly identify federal death row prisoners whose convictions
could have been affected by tainted Lab analysis or testimony. Nor did the
Department inform or consider informing defense organizations or death
penalty organizations of the potential grounds to challenge imposition of the
death penalty. Had the Department or the FBI provided such notice, three
defendants – Boyle, Stano, and Lockhart – would have had grounds to argue
for a stay of their executions while they litigated the impact of this discovery
on their cases.
Boyle and Stano were executed after the OIG Report was published,
but before the FBI had identified their cases as involving 1 or more of the
13 examiners. In those cases, the Task Force had 4 days and 11 months,
respectively, to provide notice but failed to do so (see Figure 6, next page).
The FBI identified 2 death penalty convictions for Lockhart – 1 in Indiana
and 1 in Texas – that involved 1 or more of the 13 examiners. The FBI had
identified the Indiana case 8 months prior to the defendant’s execution by
the State of Texas, but did not identify the Texas case until after Lockhart
was executed.

FIGURE 6: BOYLE, LOCKHART, AND STANO DEATH PENALTY

CASE TIMELINE

Source: Task Force case files.

II.

Failure to Design and Implement Case Review Procedures to
Ensure Expedited Handling of Capital Cases

The Department and the FBI did not design and implement case
review procedures to ensure that the handling of capital cases would be the
Task Force’s top priority, despite recommendations from a senior Task Force
attorney to a senior Department official that they do so. We found no
Department correspondence to the FBI that discussed the need for the Task
Force to make identification and handling of capital cases its top priority.
We also found no evidence that the Department directed the Task Force to
promptly gather information about pending execution dates. We found two
memoranda from a senior Task Force attorney to DAAG DiGregory raising
the issue of capital case review prioritization. The first memorandum, dated
August 19, 1997, explicitly stated, “The Criminal Division should request
expedited review of death row cases.” The second memorandum, dated
September 15, 1997, listed proposed questions for an upcoming meeting
with the FBI regarding independent reviews. Among the questions was
whether the FBI had designated a “priority order” for the scientists’ case
reviews based on factors such as length of sentence, including death penalty
cases. DAAG DiGregory told us during his interview that he did not recall
whether capital cases were prioritized.

Further, although all the former Task Force members we interviewed
recalled that they had made capital cases their top priority, we found no
evidence suggesting that this prioritization was done immediately after the
Task Force narrowed its scope in June 1997 to focus on the 13 criticized
examiners. We found one document listing some capital cases, dated
April 30, 1998, 1 year into the Task Force project. That document did not
indicate anything, however, about how the Task Force treated those cases or
the priority of those cases among the universe of cases under review. We
found a second Task Force document addressing only federal death penalty
cases, none of which involved the 13 examiners.43 That document was
dated April 10, 2000, more than 4 years after the Task Force began its
work. Similarly, we found no FBI documents that referenced a specific
protocol for handling capital cases, and two FBI employees actively involved
with the case review whom we interviewed told us they did not recall making
these cases a priority.
Below, we describe the key stages in the case review process at which
both the Department and the FBI could have made, but did not explicitly
make, capital cases their top priority. We also explain how our examination
of the review process for death penalty cases revealed repeated and material
delays traceable to the Task Force, the FBI, and state prosecutors.
A.

The FBI Failed to Immediately Identify Death Penalty Cases

We found no evidence that when the FBI first identified the 7,609
cases involving the 13 examiners, it explicitly requested its field offices to
prioritize the identification of capital cases. The FBI had created a case
identification checklist for use by its field offices, but did not include a line
dedicated to the identification of defendants on death row. We concluded
that neither the FBI field offices nor FBI Headquarters treated the capital
cases differently from the other cases in the identification process. It
appears that the FBI directed its field offices to focus on identifying cases
based on the examiner involved and that the field offices followed those
instructions.44 In addition, we found no evidence that when the FBI sent all
7,609 identified cases to the Task Force, it segregated or flagged the death
Our review of the Task Force death penalty files yielded no federal cases between
1985 and 1996 involving any of the 13 Lab examiners at issue.
43

This direction was referenced in an August 1997 internal Task Force
memorandum, which indicates that in prioritizing the review of cases by FBI field offices for
purposes of determining which prosecutions resulted in convictions, the FBI’s “examiner
priority” identified Malone as top priority. We did not find any document in our file review
that explained why the FBI made Malone its top priority. We determined, however, that
prior to July 1999, the Task Force had no reason to suspect that Malone’s analyses and
testimony would be deemed by the independent scientists to be any more unreliable than
those of the other 12 examiners.
44

penalty cases to alert the Task Force to their urgency. The death penalty
cases were among thousands of identified cases and, therefore, the Task
Force could not readily determine which defendants were at risk of
imminent execution.
B.

The Task Force Did Not Request or Receive Materiality
Determinations from State Prosecutors for All Capital Cases

The Task Force did not request or receive a materiality determination
on the Lab analysis or testimony for all capital defendants. Our review
showed the Task Force requested materiality determinations in cases
related to only 55 of the 64 defendants on death row. We found no evidence
that the Task Force requested or received a materiality determination for the
remaining 10 defendants, 6 of whose cases involved analysis or testimony
handled by Malone.45 With regard to the 55 defendants for whom the Task
Force requested materiality determinations, the Task Force did not receive
determinations for 14 defendants, as illustrated in Figure 7 (next page). In
total, our review revealed that the Task Force did not obtain determinations
from prosecutors about the materiality of the evidence for 24 of the
64 (38 percent) death penalty defendants.

The fact that Lockhart was sentenced to death in two separate jurisdictions and
that his cases were handled differently by the Task Force accounts for the total number of
materiality determination requests having been increased by one.
45

FIGURE 7: DEATH PENALTY MATERIALITY DETERMINATIONS

Note: As discussed above, one defendant, Lockhart, was sentenced to death in two
separate jurisdictions and his cases were handled differently by the Task Force. As a
result, the total number of materiality determination requests reflected in this figure
is increased by one.
Source: OIG analysis.

Using available case file documentation for 34 of the 55 death penalty
defendants for whom materiality determinations were sought, we
determined that it took the Task Force an average of approximately
5 months after the FBI’s identification of a death penalty case to request a
materiality determination from the prosecutor. In the case of Tennessee v.
Wayne Bates, the Task Force requested a materiality determination very
quickly – only 2 days after the case was identified. However, it took the
Task Force between 6 months and 1 year to request a materiality
determination from the prosecutor for nine other defendants. In the case of
Idaho v. David Card, the Task Force requested a materiality determination
from the prosecutor approximately 1 year and 4 months after first becoming
aware of the case. It is noteworthy that the Task Force neither requested
that prosecutors respond quickly in the capital cases nor set any deadline to
respond with the requested information.

We also found that state prosecutors contributed to the delays at this
stage in the case review process for some defendants on death row. Among
the 39 cases for which we could determine the length of time between the
Task Force request for a materiality determination and the prosecutor’s
response, we found that it took an average of approximately 5 months for
prosecutors to respond to the Task Force. In one case, the prosecutor
responded in a single day; in another, the prosecutor took almost 2½ years
to respond. These delays had the potential for obviously severe and
irreparable consequences.
C.

The Task Force Did Not Refer All Capital Cases to the FBI
for Independent Review

The Task Force referred to the FBI for independent review capital
cases involving eight defendants.46 It did not refer for independent review
all capital cases for which the prosecutor deemed the evidence material to
the defendant’s conviction or for which the prosecutors provided no
materiality determination at all. For example, in the case of Pennsylvania v.
Young, the prosecutor deemed the evidence material to the defendant’s
conviction, but the Task Force did not refer the case for an independent
review (see below). Young was sentenced to death in 1987 but died of
natural causes in 1996 while awaiting execution. We discuss his case in
more detail in Part III of this chapter. In addition, as reflected in Figure 7
(above), the Task Force requested from prosecutors but did not receive
materiality determinations related to 14 of the 64 defendants and did not
refer those cases to the FBI for an independent review.47

The eight defendants whose capital cases the Task Force referred to the FBI for
independent review are: (1) Brett Bogle, (2) Benjamin H. Boyle, (3) Michael T. Crump,
(4) Billy Rae Irick, (5) Bryan M. Jones (two cases), (6) Robert (Bobby) Joe Long, (7) Michael
Mordenti, and (8) Hector R. Sanchez. Cases related to all but one of these eight defendants
(Sanchez) involved hair and/or fiber evidence handled by Malone. Yet, there were
27 additional death penalty defendants with hair and/or fiber evidence that Malone
handled which the Task Force did not send for independent review.
46

The 14 defendants for whom the Task Force requested materiality determinations
from prosecutors but received no response, represented in Figure 7, were: (1) Oscar R.
Bolin (2 cases), (2) Victor J. Cazes, (3) Jeffery R. Ferguson, (4) Donald H. Gaskins,
(5) Anthony Larette, (6) Michael Lockhart (2 cases), (7) Alan Matheney, (8) Hugh W. Melson,
(9) Leon J. Moser, (10) Kenneth W. O’Guinn, (11) Nathan J. Ramirez, (12) Danny H. Rolling,
(13) Gerald E. Stano, and (14) Laron R. Williams. According to comments the Department
provided to a draft of this report, these cases were not referred for an independent review
for 1 or more of the following reasons: they involved Lab work that resulted in “no match”
to the defendant; they involved a defendant who died before the Task Force began its
review; they involved a primary FBI examiner who was not among the 13 criticized
examiners who conducted the analysis; the defendant knew of the criticisms in the OIG
Report and was pursuing litigation; no Lab exam was actually performed; the defendant
had been executed for a crime for which no FBI Lab work was performed; or the examiner
(Cont’d.)
47

Further underscoring our finding that the Task Force did not make
death penalty cases a priority, we determined that although there were
cases involving 4 defendants on death row among the first 60 cases the
Task Force sent to the FBI for independent review in July 1998, the Task
Force letter to the FBI did not specifically identify those death penalty cases
or request that they be reviewed first. Nor in later Task Force requests to
the FBI for independent reviews was there specific identification of cases
involving defendants on death row, much less a request that the FBI give
priority to their review.
D.

The FBI Caused Delays in Death Penalty Case Reviews

The FBI also contributed to the delays in the review process for
defendants in capital cases. In particular, we found that the FBI took a full
year, on average, from the time the Task Force requested an independent
review in the capital cases to return a completed report to the Task Force.
In one case, Florida v. Bobby Joe Long, the FBI responded within a month;
in another case, Florida v. Michael T. Crump, the FBI responded 2 years and
3 months later. Moreover, just three of the seven FBI letters to the Task
Force transmitting independent reports involving defendants on death row
mentioned that the enclosed independent reports included some for
defendants sentenced to death.
E.

Task Force Transmittal Letters to Prosecutors Enclosing
Scientists’ Reports Did Not Highlight Capital Cases

As explained above and in Chapter Three, for both death penalty
cases and non-death penalty cases, the Task Force used a form letter with
boilerplate language to notify prosecutors that it was transmitting the
independent scientists’ reports and to request that prosecutors determine
whether disclosure of the reports to the defendants or defense counsel was
warranted. For the death penalty cases, the Task Force did not highlight in
any of its transmittal letters to prosecutors that the enclosed reports
warranted immediate attention because they concerned defendants
sentenced to death. Nor did the letters include any direction, instruction,
guidance, or suggestion to the prosecutors to disclose the reports promptly
to the defendants or defense counsel for the affected defendants. The
strongest language suggesting that prosecutors disclose the reports read as
follows:

analyzed hair of a suspect who was not the defendant. The Department also stated that in
a number of these cases, the defendants had admitted guilt and accepted responsibility
(through a plea or an insanity defense, through unchallenged confessions, or through postsentencing acceptance of responsibility).

Please review the enclosed documents, the OIG report, and any
other pertinent information you may have to determine whether
the report of the independent scientist should be disclosed to
the defendant or to the defendant’s counsel. . . . If you decide
to disclose any of these documents to the defense, please
provide a copy of the transmittal letter to the Task Force.
The last sentence of the excerpt, requesting that prosecutors notify
the Task Force if they disclosed any of the documents to the defense, is the
language that appeared in the first 10 months of the Task Force’s letters but
was omitted from subsequent letters after the senior Task Force attorney left
the Department in June 2000. We found that only four of the eight Task
Force letters to prosecutors transmitting independent reports for death
penalty cases contained this direction because they pre-dated June 2000.
Furthermore, as discussed in Chapter Three, these transmittal letters did
not impose a deadline for the prosecutors to notify the Task Force of
disclosures made, let alone a deadline for disclosure of the reports to the
defendants.
F.

The Task Force Did Not Track Prosecutors’ Disclosures to
Defendants

Of the cases involving the eight defendants on death row referred to
the FBI for independent review, we found evidence of disclosures of the
completed reports by prosecutors to defense counsel for only two living
defendants – Irick and Bogle, as illustrated below in Figure 8. The
prosecutor in Irick’s case disclosed the independent scientist’s report to the
defendant’s counsel within 3 weeks of his receipt of the report from the Task
Force. The prosecutor in Bogle’s case did not make the disclosure to the
defendant’s counsel for almost 9 months. In total, the length of time
between the FBI’s case identification and the prosecutors’ disclosures of the
independent reports to the defendants in both the Irick and Bogle cases was
more than 2 years.

FIGURE 8: INDEPENDENT REPORT DISCLOSURES IN CAPITAL CASES

64
Defendants
on Death Row

8 Defendants’
Cases Sent for
Independent Review

2 Defendants
Received Independent
Scientists’ Reports
Source: OIG analysis.

III.

Case Studies Demonstrating Inconsistent Treatment

We concluded that the lack of a formal protocol for handling death
penalty cases resulted in irregular treatment and handling of those cases by
the Task Force, as evidenced by the following cases.
Pennsylvania v. Joseph Young
In Young, although the prosecutor determined that the FBI Lab
analysis and testimony were material to the defendant’s conviction, the Task
Force did not refer the case to the FBI for independent review. Malone was
the FBI Lab examiner in Young’s case. Upon review of Malone’s testimony,
we determined that Malone had testified in a manner strikingly similar to
that in other cases where the independent scientists concluded that
Malone’s testimony was overstated and inaccurate. Whether the outcome of
Young’s trial and his sentence would have been different without Malone’s
testimony is a serious question in view of the fact that the analysis and
testimony Malone provided in others cases was deemed scientifically
inaccurate, exaggerated, and unreliable. Young was sentenced to death in
1987 but died of natural causes in 1996 while awaiting execution. He had
served 9 years.

Texas v. Benjamin Boyle
In Boyle, discussed previously, the Task Force requested a materiality
determination from the prosecutor, who responded that but for Malone’s
testimony, Boyle would not have been convicted of the capital offense that
rendered him eligible for the death penalty. The case review form the Task
Force sent to the prosecutor, which was based on information the FBI
collected during its case identification process, indicated that Boyle had
been executed on May 21, 1997.48 Aware that Boyle was deceased, the Task
Force still referred Boyle’s case to the FBI for independent review – a review
which did not occur until 2 years later – in May 1999. None of the Task
Force or FBI documents we reviewed and none of the witnesses we
interviewed revealed why the Task Force referred the Boyle case, but not the
Young case for independent review.
The Task Force’s subsequent transmission to the prosecutor of the
independent report in the Boyle case seems to illustrate an effort by the
Task Force to follow the case review process as designed, regardless of the
defendant’s incarceration status. The independent scientist’s report in the
Boyle case unequivocally concluded that Malone’s analysis lacked scientific
integrity. As set forth in Chapter Four, the independent scientist, Cathryn
Levine, described Malone’s hair and fiber examinations and testimony as
“confusing,” “incorrect,” “not consistent,” “misleading,” “overstated,”
“without scientific basis,” and “not generally accepted as scientifically
accurate by the majority of hair/fiber examiners.” Levine also noted a
misidentification of fibers in an evidence sample and recommended that the
fibers be re-examined.
Yet, in its letter transmitting Levine’s report to the prosecutor, the
Task Force said nothing about the substance of the report or the fact that
Boyle had already been executed. Instead, the Task Force letter contained
the standard boilerplate language used in all such letters, including a
sentence that stated, “Please review the enclosed documents . . . to
determine whether the report of the independent scientists should be
disclosed to the defendant or the defendant’s counsel.” The letter further
requested the prosecutor to advise the Criminal Division in the event of
developments or litigation, including “motions for new trial, motions
attacking the validity of the conviction, or ongoing prosecution, related
appellate issues, and Brady disclosures of FBI laboratory-related
documents.” The Task Force files we reviewed contained no written
response from the prosecutor; instead, there was merely a Task Force letter
Although the FBI’s case review checklist indicated Boyle’s execution date was
May 21, 1997, the correct date was April 21, 1997. This error had no bearing on the
consequences of the Task Force’s actions.
48

to the FBI requesting, on behalf of the prosecutor, a copy of supplemental
notes Levine mentioned in her report. Neither the FBI nor the Department
publicly acknowledged that Boyle’s conviction was tainted.
To ensure that all defendants involved in the 52 death penalty cases
reviewed by the Task Force are notified about deficiencies in the Lab
analysis or testimony in their cases, we make several recommendations to
the Department. Chapter Seven contains a full list of those
recommendations.
In Chapter Six we provide our analysis and conclusions of the
Department’s design, implementation, and management of the Task Force.

CHAPTER SIX:

OIG ANALYSIS AND CONCLUSIONS

We concluded that there were serious deficiencies in the Department’s
and the FBI’s design, implementation, and management of the 1996 Task
Force case review process. We found that the process lacked adequate
planning for cases and scenarios that the Department and the FBI should
reasonably have anticipated. We also identified significant, avoidable delays
in multiple phases of the case review process and the primary reasons for
those delays. For many defendants, the delays were very prejudicial and,
for some, they caused irreversible harm. Finally, although we found that
the individuals assigned to the Task Force were dedicated, hardworking,
and conscientious, the Department seriously understaffed the Task Force
for the scope of the review assigned to it.
The Department’s lack of adequate planning resulted in its failure to
define as the Task Force’s main priorities the identification and review of
capital cases with a sense of urgency commensurate with the consequences
of a tainted conviction or, worse, the conviction of an innocent person in
such cases. The failure to adequately plan also: (1) limited the universe of
cases subjected to the Task Force review process, unjustifiably leaving
unreviewed categories of convictions that were potentially based on faulty or
unreliable Lab analysis or testimony; (2) resulted in the Department not
providing case-specific guidance to prosecutors that would have allowed
them to make timely disclosures of potentially unreliable Lab analysis,
testimony, or both that they had already determined was material to a
conviction; and (3) led to the Task Force not tracking information about any
disclosures made by prosecutors to defendants with potentially tainted
convictions.
The planning deficiencies and the delays in the case review process
had a significant adverse impact on defendants whose convictions relied
upon Lab analysis or testimony handled by Malone. Some of the affected
defendants are among the seven defendants whose tainted convictions were
not discovered until after they had served many years in prison and, in two
instances, were deceased, either by execution (Boyle) or natural causes
(Young). (See Appendix A for all seven cases.) Furthermore, the case review
process was narrowed to exclude from review potentially tainted convictions
of numerous other defendants, at least two of whom have since been
exonerated of crimes for which they served over 21 years in prison,
Santae A. Tribble and Kirk L. Odom.49 Although the allocation of limited
As explained in Chapter One, it was the combination of the FBI’s exclusion of
cases pre-dating 1985 and the Task Force’s failure to expand the scope of review to include
(Cont’d.)
49

resources always presents difficult choices for management, we believe that
some of the cases excluded from the Task Force’s review on account of the
Department’s and the FBI’s resource allocation concerns were difficult to
justify.
Below, we discuss the major deficiencies of the Task Force case
review, all of which had the potential to adversely affect defendants’ rights.
In order of greatest consequence and concern, this chapter finds that:
(1) death penalty cases were not handled with sufficient urgency and
priority; (2) the Task Force review scope for non-death penalty cases should
have been expanded based on information about Malone during the Task
Force’s case review process; (3) categories of cases were inappropriately
eliminated from the Task Force’s review scope for resource-related reasons;
(4) Task Force resources were insufficient; (5) the FBI caused significant
delays to the independent scientists’ reviews; (6) independent scientists’
reviews were limited to a paper review; (7) inadequate efforts were made to
ensure appropriate and timely disclosures to defendants; and (8) the Task
Force failed to track disclosures to defendants. At this juncture, 17 years
after the commencement of the Task Force review, only some of these
deficiencies can be remedied by corrective action, a matter we discuss in the
next chapter.
I.

Death Penalty Cases Not Handled with Sufficient Urgency and
Priority

The Department and the FBI should have made the handling of death
penalty cases their highest priority. Yet, we found that no one involved in
developing and implementing the Task Force case review process placed a
sufficiently high priority on the identification and review of death penalty
cases to ensure they were handled in an effective and time-sensitive
manner. In fact, at no time did Department leadership, the FBI, or Task
Force members take any meaningful action to treat death penalty cases
differently from other cases or to develop a strategy for doing so. As
discussed in Chapter Five, none of the Task Force letters to prosecutors
transmitting independent reports for capital cases stated that the enclosed
reports warranted immediate attention because they concerned defendants
sentenced to death. Nor did the Department broadly notify federal or state
prosecutors that the Task Force review included cases of defendants on
death row.

cases involving all Hairs and Fibers Unit examiners that resulted in the Task Force’s failure
to identify the Tribble and Odom cases.

A reasonable and expected design of the review process would have
included direction by Department leadership to the Task Force and the FBI
to make every effort to identify as quickly as possible all death penalty cases
involving any of the 13 examiners. Then, the Department could have
attempted to expedite the state prosecutors’ determination of the materiality
of the Lab evidence to convictions by closely coordinating and encouraging
state officials to establish and enforce deadlines for those determinations.
Alternatively, the Department could have described to the public, in more
detail, the case review it was undertaking. This would have allowed
defendants, defense organizations, and others to be notified of the potential
effect on capital convictions.50
In addition, a reasonable and expected case review design would have
included explicit direction to the Task Force to promptly gather information
about pending execution dates. This would have allowed the Task Force to
have ordered the priority of death penalty cases for review or provided
information to the appropriate authorities to enable informed decisionmaking on whether any impending executions should be stayed based on
the possibility that the capital conviction relied on unreliable Lab analysis or
testimony. The failure to treat death penalty cases with any sense of
urgency resulted in one defendant, Boyle, not having the opportunity to
challenge his conviction and death sentence on the ground that the capital
conviction relied on analysis and testimony that an independent expert
retained by the FBI found “confusing,” “incorrect,” “not consistent,”
“misleading,” “overstated,” “without scientific basis,” and “not generally
accepted as scientifically accurate by the majority of hair/fiber examiners.”
The prosecutor in the Boyle case, when asked about the materiality of the
evidence presented at trial, stated that “the examiner’s testimony was
‘material’ on the issue of whether the defendant committed capital murder
by murdering the victim in the course of committing or attempting to
commit the offense of kidnapping.”
With respect to the capital cases involving analysis, testimony, or both
handled by Malone, the Department and the FBI had ample reason by July
1999 to be concerned that virtually all of those convictions may have been
tainted. By then, the Department had learned about the scientifically
unsound examinations Malone conducted and his consistently overstated
and scientifically unsupportable testimony. In our view, the Department
should have directed that all of Malone’s death penalty cases – including
those where he served as the confirming examiner for analysis performed by
another examiner in the Lab – be referred for immediate review by the
50 This latter approach would have reached a greater number of defendants whose
capital convictions were supported by unreliable evidence because the Task Force review
did not include all cases handled by the 13 examiners. The review excluded cases before
1985.

independent scientists. In each of those capital cases, it was important to
the integrity of the justice system to establish whether the forensic analysis
and testimony underlying the conviction and sentence of the defendant were
free of material defect, even if the defendant had already been executed or
died in prison.
Apart from the failure of the Department and the FBI to react in a
focused and meaningful way to the severity of the problems found in the
Malone cases, we also concluded that the Task Force, supervised by the
Department, failed to handle all death penalty cases in a similar manner
without reason. We concluded that the inconsistent handling of death
penalty cases demonstrated the inattentiveness of everyone involved in the
process and a lack of focus on the need to treat those cases with urgency
and as the Task Force’s highest case review priority. For example, the Task
Force treated differently capital cases in two different states involving the
same defendant (Lockhart), where the evidence in both cases was handled
by 1 or more of the 13 criticized examiners. Upon learning that the
defendant had already been executed, the Task Force requested a
materiality determination only from the prosecutor in Texas, where the
defendant had been executed, and not from the prosecutor in Indiana,
where the defendant had also been sentenced to death. Thereafter, the Task
Force did not refer either case to the FBI for review by an independent
scientist. We attribute the Task Force’s poor handling of these cases to the
fact that the Department had not developed specific protocols or guidance
for the Task Force or the FBI with regard to death penalty cases. Moreover,
to ensure the thoroughness and integrity of the review process, the
Department should have directed the Task Force to thoroughly review all
identified death penalty cases, even if the defendants had been executed or
had died in prison before publication of the 1997 OIG Report.
Finally, the Department and the FBI did not acknowledge publicly in a
timely way that the conviction that led to Boyle’s execution was tainted. In
Boyle, the prosecutor stated that there would not have been a capital
conviction without the testimony presented by the FBI examiner at trial and
the independent scientist stated that the evidence presented by the FBI
examiner at trial (Malone) was “incorrect” and “without scientific basis.”
While we understand that this is not dispositive as to whether Boyle’s
conviction would have been overturned and his execution halted in light of
this new evidence, we do believe it raises a serious question as to whether
execution would have been the outcome. We concluded that Boyle was not
given an opportunity to challenge his conviction and death sentence based
upon this new and compelling evidence. Failures of this nature undermine
the integrity of the United States’ system of justice and the public’s
confidence in our system. Moreover, the failure to acknowledge
contemporaneously the error also injured the reputation of the FBI and the
Department.
71

II.

Inadequate Task Force Review Scope for Non-Death Penalty Cases

Although we did not examine in detail all the non-death penalty cases
in which 1 or more of the 13 examiners were involved, our review was
thorough enough to enable us to conclude that an unknown number of
defendants, including some sentenced to decades or life in prison, were
convicted in cases where the labanalysis or testimony was deficient. These
deficiencies, if challenged, might not have caused a defendant’s conviction
to be overturned because there could have been other evidence to sustain
the conviction. However, the defendants should have had the opportunity
to challenge their convictions. This was particularly true in cases where
Malone performed the forensic analysis or provided testimony. The Bragdon
case is one example of a case (shown in Appendix A) where a court found
that there was a significant possibility that the outcome of the defendant’s
trial would have been different had the state not used Malone’s faulty
analysis or testimony. In the Gates case, in which Malone performed the
Lab analysis and testified at trial, the court found that the defendant was
actually innocent.
We believe the Department should have directed the Task Force to
review all cases Malone handled at any point during his tenure in the FBI
Lab beginning in 1975, whether as a primary, secondary, or confirming
examiner, where the evidence was deemed material to the defendant’s
conviction. A discussion about potential scope expansion should have
occurred no later than fall 1999, since the FBI and the Department learned
in May and July 1999, respectively, after the glaring findings by the
independent scientists, that Malone’s forensic analysis and testimony were
unreliable. Plus, the Department and the FBI were already aware of the
OIG’s 1997 finding that Malone falsified testimony in the Hastings matter.
Finally, the fact that the FBI was not accredited and could not locate
standard protocols for hair and fiber analysis during Malone’s tenure at the
FBI Lab constituted additional bases to compel the Department and the FBI
to consider expanding the scope of review.
We also believe the Department should have considered directing the
Task Force to review a sampling of cases handled by examiners in the Hairs
and Fibers Unit other than Malone where the evidence was deemed material
to the defendants’ convictions. Given the lack of FBI Lab accreditation, the
questionable reliability of microscopic hair comparisons within the scientific
community, and Malone’s inappropriate testimony regarding the probative
value of hair evidence, we seriously question whether the work of Malone’s
peers may have also suffered the same or similar deficiencies, as was later
determined to be the problem in the Tribble and Odom cases. To determine
the scope of the problem and to assess the reliability and scientific integrity
of the analysis and testimony used in those cases, the Department should

have called for a review of at least a sampling of cases performed by the Unit
where the forensic evidence was material to the defendants’ convictions.
III.

Categories of Cases Inappropriately Eliminated from the Task
Force’s Review Scope

We recognize that resource management is an appropriate
consideration in the Department’s decision-making. Clearly, categories of
cases were eliminated to reduce the number of cases to a more manageable
level. Although resource management is an understandable consideration
in decision-making, we concluded that by eliminating case categories to
make the review process more manageable, the Task Force and the FBI
inappropriately excluded certain cases involving defendants with potentially
tainted convictions. Below are the most significant categories of cases
eliminated from the Task Force’s scope that we believe should have been
reviewed.
 Cases Pre-Dating 1985. We concluded that the Department
acquiesced to the FBI’s unilateral decision not to search for cases pre
dating 1985 during the case identification phase. We recognize that
FBI Lab databases did not contain pre-1985 cases and that additional
labor would have been required to review paper files to identify these
cases, including those identified in the manual log of hair and fiber
cases back to 1982. However, as initially revealed by media reporting
and confirmed by our review, challenges to two pre-1985 cases,
Tribble and Odom, involving hair and fiber examiners others than
Malone, resulted in the exoneration of these defendants. In our view,
Acting AAG Keeney’s guidance to federal prosecutors to use
“appropriate efforts” to identify pre-1985 cases should have been
much more prescriptive, requiring federal prosecutors to conduct a
more comprehensive search for cases not retrievable through a
database search. In addition, the Department should have engaged
directly with state prosecutors and state attorneys general to identify
pre-1985 state cases involving the 13 examiners. The Department
should also have given greater consideration to engaging other
resources, such as associations of criminal defense attorneys, to
discover additional cases warranting review by the independent
scientists.51 As a result of the Department’s acquiescence in the FBI’s
decision to limit its searches, there still may exist unreviewed, pre
1985 cases involving the FBI Lab in which potentially tainted
The Department and the FBI announced that they are taking these very
measures in connection with their ongoing 2012 review of hair cases referenced in
footnote 12, above.
51

convictions were supported by unreliable analysis and testimony
including, but not limited to, Malone’s cases.
 Five of the 18 categories of cases described in Chapter Three. Between
1998 and 2003, the Department and the FBI identified 18 categories
of cases they decided would be eliminated from the review process
(see Appendix C). Those categories included cases where: (1) the
defendant had died; (2) the defendant “should have finished [his]
sentence more than 6 years ago; (3) the defendant had been
prosecuted in a foreign country; (4) the defendant had been deported;
or (5) Malone only confirmed the lab results of another examiner. In
our view, the decision not to review these five categories of cases
devalued the liberty and collateral consequences potentially suffered
by the defendants in these cases whose convictions may have been
supported by unreliable FBI Lab analysis or testimony. In addition to
the loss of liberty for any period of incarceration to which these
defendants may have been subjected, criminal convictions can have
many collateral consequences, including: loss of job, housing, and
educational opportunities; loss of the right to vote; harm to family and
other personal relationships; loss of physical and mental health; and
the possibility of an enhanced prison sentence in the event of a
subsequent conviction. In our view, the Department fell short of the
Task Force’s articulated mission when it excluded these cases from
review.
IV.

Insufficient Task Force Resources

The findings and deficiencies we identified throughout this review led
us to conclude that the Department failed to staff the Task Force with
sufficient personnel to implement a case review of the magnitude it
undertook. At no time during its 8 years of operation did the Task Force
include more than two attorneys, three paralegals, and a few student
interns. For much of that time, the staffing level was even lower. Only one
individual served on the Task Force continuously, initially as a student
intern, then as a contractor, and finally as a Department paralegal.
Although the Task Force worked diligently to accomplish its mission, its
numbers were simply too small relative to the task at hand. Despite the
language of various memoranda and statements by Department leadership
about the importance and priority of the Task Force’s work, the Task Force’s
staffing level clearly demonstrated that the Department did not dedicate the
resources required to accomplish its mission. Similarly, we concluded that
the FBI did not always maintain the project as a sufficiently high priority.
During one time period, for example, the FBI transferred some attorneys
and support staff from Task Force-related work to other pressing matters.
We found no indication that the FBI assigned other staff to replace the

CDRU team to ensure that progress on the Lab review would not be
impeded as a result of this staffing depletion.
We also concluded that while the Department’s senior leaders
assumed responsibility for critical decisions regarding the Task Force’s case
review process and its implementation, the lack of continuity in senior
Department leaders overseeing the Task Force undermined the Task Force’s
mission. The lack of continuity contributed to delays, changes in the case
review approach and priorities, and a lack of authoritative guidance the
Task Force was able to provide in its dealings with the FBI and prosecutors.
In addition, the lack of focused attention by senior Department officials on
the developments of the case review process resulted in the Department’s
failure to address the grave problems the Task Force staff identified with
cases handled by Malone.
We recognize that the Department’s resources were finite and that its
decisions reflected a valuation of how its resources should be allocated to
meet the varied needs of the Department and the public. However, having
appropriately undertaken the Task Force’s important mission of ensuring
that convictions had not been tainted by faulty and unreliable FBI Lab
analysis and testimony, the Department was obligated to devote sufficient
resources to the project throughout its tenure to enable the Task Force to
accomplish its mission. That the scope of the review was great and would
take substantial resources to complete did not lessen the compelling nature
of the Task Force’s mission or the Department’s responsibility to ensure
that the case reviews were completed in a timely and effective manner.
In our view, enhanced Task Force staffing would have led to quicker
case identification, closer attention to the cases warranting highest priority,
and potentially more informed judgments about how to achieve effective,
timely case reviews and disclosures to defendants. Greater attentiveness by
senior Department leadership to the work of the Task Force would have kept
the reviews moving in a more timely manner and would likely have resulted
in more disclosures to defendants that Lab analysis or testimony lacking
scientific integrity was material to their convictions. In addition, as
discussed below, a larger staff could have enabled the Task Force to create
and maintain more comprehensive and accurate documentation and to
achieve a faster resolution for those defendants whose cases were adversely
affected by faulty and unreliable Lab analysis or testimony.
In addition to not adequately staffing the Task Force, the Department
did not produce a final written report of the Task Force’s work for any
audience. There was no written summary of the total number of cases the
Task Force reviewed, how many independent reports the FBI generated
through its retained experts, the results of the prosecutors’ disclosure
determinations, or the impact of the disclosures and non-disclosures on the

defendants affected by the FBI Lab’s erroneous handling of the analysis or
testimony in their cases. The lack of any such assessment reflects the low
priority that Department and FBI leadership placed on the importance of
this project by the end of its 8-year operation.
V.

FBI Caused Significant Delays to Independent Scientists’ Reviews

We concluded that the FBI was responsible for significant, avoidable,
and costly delays in the independent scientists’ reviews of cases the Task
Force referred. We based our conclusion on our interviews, close
examination of case files, and analyses of multiple time intervals relating to
when the FBI began its efforts to retain experts, when the Task Force
referred specific cases for independent review, and when the reviews
occurred. The first delay occurred early on. Once the Department identified
in June 1997 the 13 FBI examiners whose cases would be subject to
scrutiny, the FBI was in a position to identify the scientific disciplines for
which it would need to retain experts. As discussed in Chapter Three,
however, the FBI did not move expeditiously to retain the needed experts
and, in fact, took more than 6 years to hire some of the experts it needed to
complete the reviews. This was true in several scientific disciplines, but it
had the largest impact on hair and fiber cases, including eight capital cases
referred for review by independent scientists.
The second cause for delays stemmed from the FBI’s initial decision
that all reviews by the independent scientists would be performed at FBI
Headquarters. This on-site requirement added delays to the reviews
because of the travel logistics and the scientists’ competing professional
responsibilities and busy schedules. We are not convinced that the case
reviews needed to be conducted at Headquarters or that there was any
benefit to this practice given that the experts reviewed only copies of paper
files and were not permitted to re-examine physical evidence or to discuss
their case reviews with any Lab members or attorneys involved in the cases.
That the FBI later permitted at least one expert, Steve Robertson, to review
case files in an FBI field office following the events of September 11, 2001,
further demonstrates that the requirement that reviews be conducted at
Headquarters was unnecessary.
The third cause of delays was revealed in our analysis of the number
of cases Malone handled that the hair and fiber experts were not able to
review during their visits to Headquarters. The FBI knew how many cases
required the expertise of these scientists at the beginning of each visit,
including after the first visit when only Robertson remained. Yet, the FBI
did not allocate sufficient time for the scientists to conduct their reviews or,
alternatively, failed to retain enough scientists to conduct the reviews in a
timely fashion. Either way, the result was that for 8 of the 10 visits, the

scientists were unable to finish reviewing all the cases – up to 64 percent in
1 visit. The remaining cases were not reviewed until Robertson could return
to the FBI, which ranged from 4 to more than 14 months later (see below).
The fourth cause of delays was the FBI’s decision to “batch” cases for
the independent scientists’ reviews, which resulted in cases unnecessarily
sitting at FBI Headquarters for lengthy periods of time awaiting review –
over 2½ years in one case. Although we analyzed data related only to the
hair and fiber cases handled by Malone, an FBI Lab witness we interviewed
described this approach as having been used for all the case reviews.
Finally, our analysis revealed there were unexplained delays of up to
14 months between visits by the hair and fiber expert, leaving as many as
36 hair and fiber cases handled by Malone awaiting review between each
visit. Given the egregious findings about Malone’s analyses and testimony,
which had been made at the outset of the independent experts’ reviews, we
believe the FBI should have ensured an expeditious review of these cases.
VI.

Limited, “Paper” Review by Independent Scientists

At no point during the Task Force review was any of the forensic
evidence in any of the cases at issue physically re-examined. Instead, the
FBI explicitly limited the independent scientists’ reviews to a paper review of
the available testimony, lab reports, lab notes, and other papers created
during or associated with the original physical examination. However, in
some cases, including Boyle, the independent scientists who reviewed the
FBI Lab work expressly recommended that the evidence be re-examined; in
other cases, prosecutors requested a re-examination of the physical
evidence. Yet, our review confirmed that the FBI made no effort to search
for or provide the evidence for such re-examination in Boyle or any other
case. We also concluded that the Department and the FBI gave no
meaningful consideration to these recommendations and requests.
We believe this approach to the reviews was short-sighted. We
recognize that the evidence would likely not have been available in every
case and that where it was available, physical re-examination of the
evidence would have added considerable time to an already lengthy review
and additional cost to the overall case review project. However, that time
and cost should have been weighed against the serious issues the Task
Force identified regarding the scientific integrity and reliability of Lab
analysis and testimony supporting convictions in capital cases as well as
other serious crimes. Moreover, while the number of cases that fell within
the scope of the Task Force review was overwhelming, independent paper
reviews were conducted only in cases involving the 13 examiners and, with
limited exceptions, only where a prosecutor had opined that the Lab
analysis or testimony was material to the conviction – a total of 312 cases.

Moreover, physical re-examination appears to have been requested or
recommended only in a very small subset of those cases. We believe,
therefore, that to ensure justice was done, the FBI should have arranged for
a physical re-examination of available evidence in all instances where
prosecutors requested that it be done or where an independent scientist
concluded that a physical re-examination was necessary to fairly evaluate
the scientific integrity and reliability of the evidence.
VII. Inadequate Efforts to Ensure Appropriate and Timely Disclosures
to Defendants
Senior Department officials made critical decisions about when and
what to communicate to federal and state prosecutors about the 1997 OIG
Report, findings of materiality, and constitutionally required disclosure
obligations. These decisions had the potential for enormous impact on
defendants whose convictions were tainted by unreliable or faulty Lab
analysis or testimony, particularly given how many years the case review
process lasted. We were troubled by the failure of Department leadership to
require federal prosecutors to make disclosure of the independent scientists’
reports to convicted defendants. We recognize that the Department does not
have authority to mandate that state prosecutors take any action, including
disclosures that may be required by constitutional standards. However, the
Department could have directed the Task Force to engage more assertively
with state prosecutors and state attorneys general on the importance of
making timely and meaningful disclosures in the affected cases and to
strongly urge state prosecutors to do so.52
The Task Force’s request that prosecutors determine whether the Lab
evidence was material to the defendants’ convictions was apparently
designed to identify cases in which the government might have an obligation
to disclose such information to defendants or their counsel. When the Task
Force received a prosecutor’s determination that Lab evidence handled by
1 of the 13 examiners was material to a defendant’s conviction, and an
independent scientist concluded that the Lab evidence, testimony, or both
was faulty or could not be verified, the Task Force should have provided the
prosecutor with guidance about the independent report’s relevance to the
prosecutor’s disclosure obligation. Yet, the Task Force provided no such
case-specific guidance to the prosecutors when it transmitted the completed
reports.
Pending cases, whether at the trial or appellate level, were handled differently:
federal and state prosecutors notified defense counsel of Lab examinations conducted by
the 13 examiners criticized by the OIG, providing an opportunity to litigate the admissibility
of the subject Lab reports and testimony.
52

We believe the Department, through the Task Force, should have
required federal prosecutors, and strongly encouraged state prosecutors, to
disclose the independent scientists’ reports to the defendants or defense
counsel when the reports concluded that the material Lab analysis or
testimony was unreliable. This would have afforded affected defendants the
same opportunity to pursue legal recourse that was given to defendants in
pending cases. As discussed in Chapter Three, the Task Force never
articulated to any prosecutor, federal or state, the Department’s position
about whether disclosure of the independent reports to defendants was
legally required when it transmitted the completed reports. We believe the
Department, through the Task Force, should have provided firm guidance to
federal and state prosecutors about the effect of an independent scientist’s
conclusion that the Lab analysis or testimony was unreliable on a
prosecutor’s disclosure obligation.53
The consequence of the Task Force’s silence on the prosecutors’
disclosure responsibilities was that some prosecutors may have made an
erroneous determination that disclosure was unnecessary. This would have
precluded defendants who should have been notified of the problems
identified in their cases from seeking legal recourse. Indeed, in one Task
Force case, the failure of federal prosecutors to disclose the independent
scientist’s report likely lengthened the sentence served by an innocent man
who was subsequently exonerated by DNA testing. In Gates, the Task Force
verified that the U.S. Attorney’s Office for the District of Columbia received
the letter containing an independent review of Malone’s analysis. The
U.S. Attorney’s Office, however, never transmitted that report to Gates or his
counsel. At the time the Task Force sent the letter to the U.S. Attorney’s
Office in 2004, Gates had served approximately 21 years for a rape and
murder he did not commit. Gates was exonerated on the basis of DNA
testing in 2009, after serving 27 years in prison, approximately 6 of which
were served after he should have received a copy of the independent report
finding fault with Malone’s analysis.
VIII. Failure to Track Disclosures to Defendants
The Task Force also failed to require that prosecutors notify the Task
Force of their disclosure decisions – whether or not they decided to disclose
the independent reports to defendants or defense counsel. Nor was there
Our conclusion is focused on those independent reports that document problems
with the FBI Lab’s work in cases where the prosecutor determined that the Lab evidence
was material to the conviction. If the reports concluded that the FBI Lab work was not
problematic, then there would be no constitutional requirement that the prosecutors
disclose those reports to defendants even if the evidence were material. See Brady v.
Maryland, 373 U.S. 83, 87 (1963) and United States v. Bagley, 473 U.S. 667, 682 (1985).
53

any mention in the Task Force letters to prosecutors about the importance
of acting swiftly to make disclosures to defendants or their counsel, even in
death penalty cases.
The Task Force’s failure to track prosecutors’ disclosures or follow up
with the prosecutors reflects the same deference to prosecutors that appears
to have led the Department not to take a more active role in providing
guidance to prosecutors about disclosures the law would seem to clearly
require. From our review of Task Force files, we believe many disclosures
that should have been made may not have been made. We identified a
limited number of case files that included copies of independent report
disclosure letters that prosecutors sent to defense counsel; most files we
reviewed did not contain any evidence that any such disclosure was made.
Appendix H shows that copies of such letters were contained in case files for
only 13 of the 402 defendants whose cases were reviewed by independent
scientists. Although the FBI has informed us that it has identified
additional cases where disclosures were made, the Task Force’s decision not
to track prosecutors’ disclosures of independent reports to defendants
precluded the Task Force from alerting Department leadership to cases that
may have required their intervention to avoid the denial of defendants’
rights.
These failures, some alone and some in combination, played a crucial
role in determining whether a given defendant received the full benefit of the
case review process originally envisioned by the Department when it created
the Task Force, and as its mission was refined in response to the 1997 OIG
Report. Therefore, while the Department satisfied the Task Force’s mission
for many of the affected defendants, it failed to achieve the Task Force’s
objectives and to perform its core function of ensuring that justice was
served in matters within its purview when it came to defendants adversely
affected by deficiencies in the process.
In Chapter Seven, we make five recommendations to the Department
and the FBI to address those deficiencies we believe can still be remedied.

CHAPTER SEVEN:

RECOMMENDATIONS TO THE DEPARTMENT AND THE FBI

Deficiencies identified in this report warrant action on the part of the
Department and the FBI. We make five recommendations regarding certain
deficiencies. These recommendations address specific categories of cases
involving a conviction and evidence handled by 1 or more of the 13 Lab
examiners. Other deficiencies we identified cannot be remedied at this
juncture. However, we recommend that the Department consider these
other deficiencies in designing, implementing, setting priorities for, and
making resource allocation decisions in future reviews of a similar nature it
may undertake.
In view of the potential effect of our review on individual defendants’
cases, we have taken steps during this review to enable the Department to
move forward with ensuring that affected defendants receive notice, even if
long overdue, of unreliable Lab analysis or testimony that may have affected
their convictions. To that end, we provided information to the Department
and the FBI at several points during this review to enable them to begin
remedial action we anticipated recommending without awaiting completion
of this report. For example, in January 2013, after completing our initial
analysis of capital defendants whose convictions or sentencing may have
relied on evidence handled by 1 or more of the 13 examiners criticized in the
1997 OIG Report, we provided the names of these defendants and their
case-related data to the Department and the FBI. The list of capital
defendants – which includes those who received reduced sentences of life or
a lesser amount – that we provided to the Department and the FBI is
included in Appendix G. In addition, in September 2013, we provided the
Department and the FBI with identifying information on 402 defendants for
whose cases independent scientists completed reports. We were able to
determine in only 15 of those cases that the reports were disclosed to the
defendants or their counsel. The list of these 402 defendants provided to
the Department and the FBI is included in Appendix H.
During our review, the Department informed us of its efforts to notify
potentially affected defendants of the 1997 OIG Report and Task Force
review. We acknowledge and appreciate representations by the Department
concerning its efforts to effectuate meaningful notice to certain potentially
affected defendants. We are not in a position at this juncture, however, to
evaluate the adequacy of the Department’s recent efforts in response to the
interim briefings we provided.
We encourage the Department and the FBI to consider working with
defense organizations, such as the National Association of Criminal Defense
Lawyers or entities which work to ensure protection of defendants’ rights,
81

such as the Innocence Project and the American Civil Liberties Union, to
ensure a comprehensive and effective plan designed to achieve maximum
and effective notice to all potentially affected individuals. We further
encourage the Department and the FBI to coordinate with and use the
resources of state attorneys general, district attorneys, public defenders,
and the federal, state, and local courts to implement these
recommendations.
With respect to three categories of cases listed below, we recommend
that the Department and the FBI take the following corrective actions:
52 State Death Penalty Cases Reviewed by the Task Force54
1.

Provide case-specific notice to defense counsel for 26
defendants currently on death row or awaiting resentencing or
retrial. The notice should include the following information:
a. The 1997 OIG Report;
b. A brief description of the 1997 Criminal Division Task
Force review;
c. Whether the prosecutor made a determination of the
materiality of the FBI Lab evidence;
d. Whether the Task Force referred the case to the FBI for
review by independent scientists;
e. Whether an independent scientist completed a report
for the defendant’s case; and
f. Completed independent scientist’s report for
defendant’s case, if applicable.
Exceptions – No notice is necessary if there is:
 A determination that the materiality and integrity of the
evidence was previously litigated, specifically with regard
to the deficiency of the Lab examiner’s analysis or
testimony;
 Definitive evidence of prior notification, regardless of
whether the matter was litigated; or
 A prior determination by a prosecutor that the Lab
evidence was not material to the conviction and there is
no indication undermining the objectivity of the
prosecutor’s determination.

54 This figure represents the 64 death penalty defendants discussed in this report
less 12 defendants who were resentenced to a term of life or less.

Urge states to allow FBI retesting of physical evidence, if
available, for 24 of the 26 death row defendants who were
executed or who died in prison while on death row.55
a. Request assistance from state attorneys general and
district attorneys to obtain physical evidence for
testing;
b. Retest using the most scientifically reliable and
accurate technology available today; if Lab evidence
included hair analysis, retest using mitochondrial DNA
analysis;
c. If test results are contrary to original Lab finding or
are potentially exculpatory or impeaching, work with
offices and organizations such as state attorneys
general, district attorneys, defense counsel, the
Innocence Project, and the National Association of
Criminal Defense Lawyers to ensure effective and
appropriate notification; and
d. If physical evidence is not available, conduct a review
of available testimony, Lab report, bench notes, and
any other relevant materials to assess the integrity of
the Lab evidence in the case.
Exceptions – No retesting is necessary if there is:
 A determination that the materiality and integrity of the
evidence was previously litigated, specifically with regard
to the deficiency of the Lab examiner’s analysis or
testimony;
 Definitive evidence of prior notification, regardless of
whether the matter was litigated; or
 Prior determination by a prosecutor that the Lab evidence
was not material to the conviction and there is no
indication undermining the objectivity of the prosecutor’s
determination.

Non-Death Penalty Cases Reviewed by Task Force
3.

Provide case-specific notice to currently and previously
incarcerated defendants whose cases were reviewed by the Task
Force (approximately 2,900). The notice should include

This number excludes 2 defendants (Victor Cazes and Anthony Larette) because
the Department recently learned and informed us that their convictions and death
sentences did not rely on the work of any of the 13 criticized FBI Lab examiners.
55

elements a through f described in Recommendation 1
concerning death penalty defendants.
a. Start by providing notice to the 402 defendants for
whom the independent scientists completed reviews
(101 defendants in federal cases; 301 defendants in
state cases).56
b. For state and local cases, coordinate with offices and
organizations such as state attorneys general and
district attorneys, public defenders, defense
organizations, and state and local courts to maximize
likelihood of effective notice or constructive (broad,
public) notice.
Exceptions – No notice is necessary if there is:
 A determination that the materiality and integrity of the
evidence was previously litigated, specifically with regard
to the deficiency of the Lab examiner’s analysis or
testimony;
 Definitive evidence of prior notification, regardless of
whether the matter was litigated; or
 Prior determination by a prosecutor that the Lab evidence
was not material to the conviction and there is no
indication undermining the objectivity of the prosecutor’s
determination.
Cases Not Reviewed by the Task Force
4.

Provide the broadest possible notice to offices and organizations
such as defense and civil liberties groups, state attorneys
general and district attorneys, governors’ offices, and federal,
state, and local courts. The notice should state that the Task
Force did not review all criminal cases resulting in a conviction
that involved 1 or more of the 13 FBI Lab examiners and that,
as a result, notification may not have been provided to
convicted defendants about deficiencies in the Lab analysis or
testimony used in their cases.

The OIG previously provided the list of 402 defendants to the FBI. See
Appendix H. The 301 state defendants include 7 sealed cases for which jurisdictions were
not identified.
56

Tracking for all Three Case Categories
5.

Consistently track the notice provided to specific defendants or
defense counsel and the steps taken to provide constructive
notice to categories of defendants whose identities are unknown
or unidentifiable.

APPENDIX A:

SELECT DEFENDANTS REFERENCED IN REPORT

Defendant
Benjamin H. Boyle

Sentence Year
and Penalty
1986

Time Served
from Date of
Conviction Until
Date of Death or
Release
11 years

Executed 4/21/97, prior to
identification and review by the Task
Force. Would not have been eligible for
death sentence without Lab evidence.

9 years

Died of natural causes on 2/28/96
while awaiting execution.

27 years

Exonerated.

27 years

Exonerated.

21.5 years

Exonerated.

11 years

Conviction reversed and remanded.
Defendant not retried.

32 years

Conviction reversed and remanded.
State appealing ruling.

Death

Joseph L. Young

1987
Death

Donald E. Gates

1982

Case Status as of June 2014

20 years to life

Santae A. Tribble

1980
20 years to life

Kirk L. Odom

1981
22 to 66 years

Anthony E. Bragdon

1992
30 years

John N. Huffington

1981
Two consecutive
life terms

Sources: Court records, Task Force files, and other information provided by the Department
and the FBI.

APPENDIX B:

THIRTEEN CRITICIZED FBI EXAMINERS

This table lists the 13 FBI examiners whose cases the Task Force
determined in June 1997 warranted further scrutiny based on the OIG’s April
1997 report.57
FBI Lab Examiner

FBI Lab Division Affiliation
(Per 1997 OIG Report)

Year Examiner
Joined FBI Lab

1. Richard Hahn

Explosives Unit

1987

2. Robert Heckman

Explosives Unit

1990

3. Wallace Higgins

Explosives Unit

1989

4. Alan Jordan

Explosives Unit

1983*

5. Lynn Lasswell

Chemistry-Toxicology Unit

1975

6. Michael Malone

Hairs and Fibers Unit

1974*

7. Roger Martz

Chemistry-Toxicology Unit

1980*

8. J. Christopher Ronay

Explosives Unit

1977*

9. Terry Rudolph

Materials Analysis Unit

1979*

10. James Thomas Thurman

Explosives Unit

1981

11. Robert Webb

Materials Analysis Unit

1976

12. Frederic Whitehurst

Materials Analysis Unit

1986

13. David Williams

Explosives Unit

1987

*Indicates a discrepancy we found in the examiner’s employment date on Task Force and FBI
documents. Some of the documents provided to us listed only an examiner’s start date with
the FBI, but not with the Lab specifically (Jordan and Ronay) whereas other documents listed
two different employment dates.
Sources: 1997 OIG Report; Task Force and FBI correspondence; FBI employment dates.

At least six of the examiners joined the FBI Lab prior to 1985 – Lasswell,
Malone, Martz, Rudolph, Thurman, and Webb. Another two examiners – Ronay
and Jordan – likely joined the FBI Lab prior to 1985 but we could not verify
those dates due to the discrepancies described above.
At least eight of the examiners had left the FBI Lab by the time the OIG
Report was published in April 1997, including two who had temporarily
transferred out of the Lab following issuance of the draft Report in January
1997 – Hahn, Williams, Lasswell, Malone, Martz, Rudolph, Webb, and Ronay.
John C. Keeney, Acting Assistant Attorney General, Criminal Division, memorandum
to all United States Attorneys, First Assistant United States Attorneys, Criminal Chiefs, and
Criminal Division Section Chiefs and Office Directors, Inspector General’s Report on the FBI
Laboratory, June 6, 1997.
57

APPENDIX C:

CATEGORIES OF CASES ELIMINATED BY THE TASK FORCE AND THE FBI

Case Category and Description

Proposed
by

Reason Cited by the
Task Force or FBI

Date
Eliminated

Number of
Cases
Eliminated

1-10

Cases falling into 10 “other” sub-categories:
1. defendant deceased/deported
2. case dismissed/charges dropped/nolle
prosequi
3. defendant pardoned
4. conviction vacated/overturned/reversed and
defendant not retried
5. foreign prosecution
6. defendant not convicted for offense worked
on by criticized examiner
7. defendant pleaded guilty before laboratory
report was issued
8. criticized examiner did not work on case/
replaced by another examiner
9. no laboratory work performed or laboratory
work was discontinued
10. insufficient evidence for examination/
comparison/identification.

FBI and
Task
Force

No reason given

December
1998

Not documented
by the Task
Force

Cases where Malone only confirmed the lab
results of another examiner: Cases in which
former FBI Lab examiner Michael Malone did not
perform the examination but confirmed the hair
examination of another examiner.

FBI and
Task
Force

No reason given

December
1998

Not documented
by the Task
Force

Inconclusive lab evidence: Cases that had
“inconclusive” lab evidence, not defined by the
Task Force but illustrated by the example of not
finding a hair that matched the defendant at the
scene of a crime.
Exception: The Task Force stated that death
penalty cases would be reviewed and materiality
determinations obtained even if the lab results
were inconclusive.58

FBI and
Task
Force

Rarely used by the
prosecution in
criminal cases so “the
results are very rarely
material to a
conviction.”

December
1998

Not documented
by the Task
Force

Non-explosives Lasswell cases: Cases in which
former FBI Lab examiner Lynn Lasswell conducted
non-explosives forensic work. (The Task Force
stated that the majority of Lasswell’s cases
involved the identification of controlled
substances, red dye on evidence from bank
robberies, and other types of chemical analysis.)
The Task Force stated it would review only those
Lasswell cases involving explosives-related forensic
work, the area of analysis for which Lasswell was
criticized in the OIG Report.

FBI and
Task
Force

No evidence of any
wrongdoing or
routinely sloppy work
by Lasswell.

January
2003

245 out of 1,652
cases Lasswell
handled59

Notwithstanding the Task Force’s statement in its December 1998 correspondence that it would review death penalty
cases and obtain materiality determinations even if the Lab results were inconclusive, we found that this did not occur.
58

Of the 245 cases, 218 resulted in a conviction. In addition, there were 26 federal cases for which the conviction status
was not determined and 1 case which was sealed with an unknown conviction status, according to an April 18, 2003, FBI summary
document. We found no further information in Task Force or FBI documents to explain why the conviction status of the 26 federal
cases was not determined.

No record of case/files purged/unresponsive:
Cases where the records for a known defendant
could not be located or the prosecutor was
unresponsive to the Task Force’s requests for
materiality determinations. The Task Force stated
that prosecutors’ offices, law enforcement
agencies, and courts occasionally purge case
files – particularly older ones – after a certain
number of years.60

FBI and
Task
Force

If files from these
offices are not in
existence and the
prosecutor could not
be identified or was
unavailable, it would
not be possible to
obtain materiality
determinations.

January
2003

Not documented
by the Task
Force61

Ronay and Higgins cases: Cases reviewed by
former FBI Lab Explosives Unit Chief
J. Christopher Ronay and Explosives Unit primary
examiner Wallace Higgins.

FBI

The OIG Report
criticized Ronay and
Higgins for “lapses in
judgment in their
roles as supervisors,”
but not for their own
lab work.

January
2003

27 cases, all of
which resulted
in a conviction
(19 of 199 cases
Higgins handled
+ 8 of 350 cases
Ronay handled)

Jordan cases: Cases reviewed by former FBI Lab
examiner Alan R. Jordan

FBI

The OIG Report found
no evidence of any
misconduct by Jordan
and did not
recommend any
disciplinary action.

January
2003

6 of 291 cases
Jordan handled,
all of which
resulted in a
conviction

A former Task Force member we interviewed told us that these cases differ from cases where there was no record of a
defendant or a subject. The Task Force did not pursue materiality determinations for the latter case category.
60

A January 2003 FBI letter to the Task Force stated that the Task Force forwarded to the FBI for independent scientific
review nine cases in which the prosecutor’s office did not respond to repeated requests by the Task Force for materiality
determinations. Seven of the nine cases involved Malone analysis. The letter stated that both the FBI and the Task Force agreed to
review those cases. Although we could not determine from Task Force documentation whether those nine cases represent the full
universe of eliminated cases in this category, we found evidence that independent reviews were conducted for additional cases in
this category. For example, we found Task Force letters to the FBI requesting independent reviews for cases where prosecutors
were unresponsive to the Task Force’s requests for a materiality determination, had insufficient records to make a materiality
determination, or requested an independent review in lieu of making a materiality determination.
61

Small cases: Small cases, defined by the Task
Force as cases in which the defendants “were
fined, not incarcerated, or should have finished
their sentence more than 6 years ago.”62

Task
Force

Reviewing these cases
for both prosecutors
and the Task Force
would be labor and
time-intensive
because many were
about 20 years old.

January
2003

170 cases, all of
which resulted
in a conviction63

Cases with missing lab reports: Cases in which
the Task Force’s files lacked the corresponding lab
reports.

FBI

Without the lab
reports and
corresponding bench
notes the examiners
prepared, a
meaningful
independent scientific
review could not be
conducted.

January
2003

Not documented
by the Task
Force

Sources: Eight documents from December 1998 through January 2003 – seven letters and memoranda between the Task Force
and the FBI and one FBI summary document – discussing cases to be eliminated from the review scope. The source for the 4 case
categories that identified the number of cases eliminated (totaling 448 cases) was an April 18, 2003, FBI document, “Lab Task Force
Summary 4/18/03.”
These eight documents represented all relevant documents related to case eliminations the OIG discovered in the information
provided by the Criminal Division and the FBI. Many of the case categories eliminated in January 2003 were also discussed and
proposed for elimination in earlier correspondence.

62 FBI letter to Office of Enforcement Operations, Criminal Division Re: FBI/DOJ Task Force to Review FBI Laboratory
Cases, January 2, 2003, page 4.
63 According to the FBI’s April 18, 2003, document, the “small cases” category included 39 additional Lasswell cases;
6 additional Jordan cases; and 6 additional Ronay cases beyond those listed in the Lasswell, Jordan, and Ronay categories.

APPENDIX D:

FEDERAL CASE REVIEW (MATERIALITY) FORM

U. S. Department of Justice
Criminal Division

IVDshington. D. C. 20SJD

FBI LABORATORY FEDERAL CASE REVIEW
INVESTIGATION/CASE NAME: DISTRICT:

- -- - - - - - - - - - - - -

---------------------- FBI CASE ID NO: - - - - -

AUSA: _________________________ PHONE: - - - - - - - STATUS:

CONVICTION OBTAINBD?
PURSUANT TO GUILTY PLEA?
TRIAL ON TilE MERITS?

0
0
0

YES
YES
YES

0
0
0

NO
NO
NO

(If a conviction was obtained, please provide the information rcqliested below,

If there was oo conviction, sign and submit this fonu to the CrinUnal Division Taslt Force.)

SENTENCE IMPOSED AND DATE(S): - - - - - - - - - IS DEFENDANT INCARCERATED?
0
YES 0
NO
APPEAL AND DATE(S): - - - - - - - - - - - - - COURT NUMBER: - - ----JUDGE:
OFFENSES, DATE OF OFFENSE AND FACTS:

FBI

LAB EXAMINER(S):

FORENSIC ANALYSIS PERFORMED BY FBI LAB: - - - - - - - - - -

WAS THE FBI LAB WORK MATERIAL TO THE VERDICT?

0 YES

0 NO

(If yes, or you need more information to ~D:~de this 11SSCSSmt:nl, please contact the Cdminal

Division Task Force at 202/616-2505. lf no, attach a m~mo signed by the proseGUtor with the
reason$ for this determination.)

Ptosecuto.r's Signature

Print Name

Date

CRM - 18946

APPENDIX E:

REDACTED STATE AND LOCAL CASE REVIEW (MATERIALITY) FORM

U. iS. Department of Justice

Criminal Division

WiiJhiiJIIDif, D.C. 105JO

TIU. Force on the FBI Lob11rt>lory
/001' G StreeJ, N.W.. Suitt 200 West
TtltjohOM 102-616 -210.5

Fqcrltrrllt 202·616-IOJ2

FAX TO:

FBI LAB ORATORY STATFJLOCAL CASE REVIEW
INVESTIGATION/CASE NAME: _
COURT NUMBER:

FBIHQ FILE NO: - - -·
PRONE:~~=-=-

PROSECUTOR: - - - - - - -·
OFFICE/ADDRESS: =
- =~~--
CITY/STATE:

TITLE:

STATUS:

TRIAl. ON '11tli MBRITS7 XO
SENTENCE IMPOSED AND DA:r:E(S):
IS DBPENDANT INCARCERATED~
APPEAL AND DATE(S):
POST-CONVICOON MOTIONS:
FBI LAB I!XAMINER(S):
l..AB I!XAMINER.(S) TESTIPI£0:
.DA'IC: LAB REPORT(S):..

TRAJIISCRIPT:

GUILTY PLEA?

YES

N/A

OFFENSES, DATE(S) OF OFFENSE(S} AND FACTS:

FORENSfC ANALYSTS PERFORMED BY MART2~:
WAS MARTZ'S LAB WORK MATERIAL TO TilE VERDICT?

DYES

ONO

If oo, please attach a memo witb the reas;on(s) for this determination.

Prosec:otor's Signature

Print N"ame.

Title

Date

CRM- 74 11

APPENDIX F:

INDEPENDENT CASE REVIEW REPORT AND GUIDELINES

INDEPENDENT CASE REVIEW REPORT
~~~br.

__________________________

Atca(s) olEicpc:nbe: - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - R.ovicw~ac - ' - - - - (rJIIII:),

_ _1_____1_ _ (Pale)

File 1:

l.AbotaiOryii(J): - - - - -- -- --

Examiner(•) & Symbols
0

Trill...._,.lnUctipl(s)d:. - - - - - - - - - - - - - - - - T..a-,.Doft(s): _ __ _ _ __ _ P.,...: _ _ _ _ _ _ _ __
Labanlary Rqoort(a):

_______
~~------------ouc _____
~~--------------------DMc

!.A~

Number•. _ _ _ _ __

_ _ _ __ _ Ollie: _ _ _ _ __

Examiner Bcoch NOles of

l.A~~ecyNum~.-----------l.Abota~ecyNwDMr.

_ __ _ _ _ __ _ ___

w~yNWn~------------

Paae _ _ or _ _
wtl&la:

Jfyca.pla.~ed/01-lheaw.ria!J - - - - - - - -- - - - - - - -- -

Results of Review
File tl:

JICnlorSpccimc:Dtl~ - --

- - - -- --

!lr:Yiew of Laboratory Rcpot\(a} and Beod1 Not~
Note: Numkrod - u arc nquii'O<I bdoW<Il' oa
o.ddlll"""' pace. for oay "No" or •Oa.obiO to De«emaloo'" llcipODia

lcSISm

Did the .,..,.u..,. perform tbc ~
a ooiaWlically ~•I• ~. bued on 11>e methods.
~ IIIOd ..w,titiCcbniquco owiloble &Ilk ll8o« of tile ortahuol-atloa(•)?

As>;

ov..

o,..,

OUnoblciD~

u.: cxamltlalloa results .... ronb In the lobora~Dq~ rcpol1(1) ..._ud and ldeq\laldy docwmclll<:d ia lhe

bcuoh DOia'l

o Yes

a No

a Unab lc to lkt<:nllim

Review of Testimony:
Note.: Numl>«rcd ..,..._to arc roqebecl bdoW ,,.. oa
•4dlUoaal P•la D>r aii:J "No• or "'uble to Dd.cnaiiH•"ltMpOMa
o n - i p t DOl available.

)) Testimaay- W\lhlbo llbonoolyn;px1(s)7
4) T IOIIimaQy _,.._, will> lhe "'-~> """""'

o Yes

o No

a Upable 10 Oela'lnloe

S) Toslimony wilhill boulldl otex.unlocr'• Cllq>CI'IiJc7

a Yes

0 No

a Unable to Dclcnnlno

PIJC _

<I_ __

laillllls

CommentJ
(Set forth b)r above quelliCil I, ilopplicablc.
Uoe "Addiliaoal Coa>~Qcoa." 5'-t, ICDCCdod)

_.....__

_ (T'mc),

- - ' - - ' - - (0&1<:)

TCII&IIilllo .,mCCJGduo&iDa..,.,;c.,(IO _.-at II~ boll<) : - - - --

1 borcb)' ca1i,fy lha!J c:oocluclal Ibis reW:w iD &G indq>aldall. UDtrluo<lllllllll<r &Dd lblli!Je ~~~ ol l1l1 review arc
fulb' docualaiiOd oa lhlo report OOIISistiJlc olaiCC&l ol
ptp.

Pap _

or_ _ _

Initial• - - -

(Oala)

Adclidonal Comlneotl

(Set

b-e"'.-...'·

il..,&c.ble)

.·
INDEPENDENT REVIEW GUIDEUNES
Oocvmenlatlon to be reviewed

Incoming CO('Aispondence/req~:

laboratory report(s);

Examiner bench notes and/or cfielallor); Qnd

Triallransaipts of test.imony.

Slandards of Review

Were the appropriat.e ~st(s) performed In a scienlificaUy
acceptable manner based on the methodG, protocols or analytic
techniques available at !he lime or the original eKarnlnallon.

Are the al'amlnatlon results set forth In the laboratory report(sJ
supported and adeQuately documented in the bench notos?

Are lhe written lab«aloty report(s) llJ'Id the e~lner benc:n notes
consistent?

Testimony

(i) Was the examiner's testimony Within the bounds or the
examiner's el(l>ertl&&? tr not, explain brlenv.
· {li) Was the examlnel"s teslimO(l)' consistent with the labofaloty
report(s) and bench notes? If not, explalt~ brieny.

Reporting Requirements

When a response oi "No• ex "Unable to Oelem"llne" Is given to any
question, the revTewer must ~In why such a response was
given.

Upon compteUon or the review. the Independent scientist will
document his or her findings and conclusions In the Independent
C<lse Review Report (a copy of which Is 8Ullcl'led hereto).

lhe reviewer may also doc:unent the rosutts or his or her review in
lhe ronn of a narrative rePOfl. if the rev1ewer believes such a
written fep<>rtls

,_,.sary,

...

IV.

All notes, doeumeniS, oommunlcaliona and reports relating to the
review are 1t1e property of fhe, Federal Bureau of Investigation (FBI)
and shall.be prollldel;l to the FBI at the conclusion of the review Of
upon the FBI's requesL

Non-Disclosure
e.

AlllnfocmaUon provided to the revlewii'IQ aclenllst by the FBI,
lnclucllng, but notllmltedlo, scientific analyses. repo~. bench
notes, and transa1pt.s, ere coMidered sensitive property of lhe FBI
anr;l may not be released or disclOsed by any party (including
contractors) other than the FBl without lhe FBI's prior writ1en
aulhorizatlon.

1).

All reports or other analyses or lnfonnatlon generated by the
reviewing scientist are considered sensitive property of the FBI and
may not be released or disclosed by any party (lncll)ding
contractors) other than the FBI without the FBI's prior written
euthori:zation.

CIB5lilfied Material
a

Classified materials must.be maintained pursuant to the FBI's
polfcy concemlng the control and use or classtned infonnaticn,

My lnformaUon prepared or maintained by a revlewing scientist
Involving a case which includes dassitlod materials Is to be
considered classified and must be maintained as classllied
lnfonnation unless end unlit de-tennlned by competent FBI authority
to be un<:lasstned.

I flave been ad\ftsed o1 .nd have read the above guidelines.

Signature of s·ctenUst

APPENDIX G:
DEFENDANTS WHO RECEIVED DEATH PENALTY, LIFE, OR LESSER SENTENCES
(OIG PROVIDED TO THE FBI AND CRIMINAL DIVISION IN JANUARY 2013)
Defendant
Count

Jurisdiction

Last Name

First Name

Examiner(s)

Case Status as of January 2013

DEFENDANTS WHO RECEIVED DEATH PENALTY
1

Branch

Eric

Hannon

Patrick

Malone

On death row with no known pending appeals
On death row with no known pending appeals

Hendrix

Robert

Malone

On death row with no known pending appeals

Jones

Bryan

Malone

On death row with no known pending appeals

Krawczuk

Anton

Letner

Richard

Malone

On death row with no known pending appeals

Tobin

Christopher

Malone

On death row with no known pending appeals

Bogle

Brett

Malone

On death row with pending appeals

Bolin

Oscar

Malone

On death row with pending appeals

Card

David

Malone

On death row with pending appeals

Code

Nathaniel

Cone

Gary

Malone

On death row with pending appeals

On death row with no known pending appeals

On death row with pending appeals

Ferguson

Jeffery

Malone

On death row with pending appeals

Happ

William

Malone

On death row with pending appeals
On death row with pending appeals

Hughes IV

Robert

Malone

Irick

Billy Ray

Malone

Lawson

Jerry

Long

Robert

Malone

On death row with pending appeals

Mann

Larry

Malone

On death row with pending appeals

Malone

On death row with pending appeals

Suggs

Donald

Trepal

George

Wogenstahl

Jeffery

Wyatt

Tommy

Copenhefer

David

On death row with pending appeals
On death row with pending appeals

On death row with pending appeals
On death row with pending appeals
Malone

On death row with pending appeals
Pending retrial or resentencing

100

Defendant
Count

Jurisdiction

Last Name

First Name

Examiner(s)

Case Status as of January 2013

Smith

Leonard

Pending retrial or resentencing

Stenson

Darold “RJ”

Pending retrial or resentencing

Mordenti

Michael

Malone
Malone

Capital conviction reversed; defendant released

Boyle

Benjamin

Buenoano

Judy

Executed April 21, 1997

Drayton

Leroy

Executed November 12, 1999

Gaskins

Donald

Executed September 6, 1991

Johnson

Gregory

Executed May 25, 2005

Larette

Anthony

Executed November 28, 1995
Executed February 9, 2011

Executed March 30, 1998

Link

Martin

Lockhart

Michael

Executed December 9, 1997

Matheney

Alan

Executed September 28, 2005

Moser

Leon

Narvaiz Jr.

Leopoldo

Executed August 16, 1995
Malone

Executed June 26, 1998

Ortiz

Ignacio

Powell

James

Executed October 27, 1999
Executed October 1, 2002

Shelton

Nelson

Executed March 17, 1995

Rolling

Danny

Executed October 25, 2006

Schwab

Mark

Executed July 1, 2008

Stano

Gerald

Brooks

Thomas

Cazes

Victor

Malone (confirming scientist)

Melson

Hugh

Malone

Died in prison 1999

Mendyk

Todd

Malone

Died in prison 2002

Malone

Executed March 23, 1998
Died in prison 2000
Died in prison 2000

O’Guinn

Kenneth

Malone

Died in prison 1999

Pettit

Samuel

Malone

Died in prison 2005

Wike

Warfield

Williams

Laron

Malone

Died in prison 1985

Young

Joseph

Malone

Died in prison 1996

Died in prison 2004

101

Defendant
Count

Jurisdiction

Last Name

First Name

Examiner(s)

Case Status as of January 2013

DEFENDANTS WHO RECEIVED LIFE OR LESSER SENTENCES
54

Bates

Wayne

Bradley

Jerard

Malone

Reduced sentence: Life
Reduced sentence: 13.5 to 32 years

Crump

Michael

Malone

Lovette

Michael

Malone

Reduced sentence: Life

Mason

Maurice

Malone

Reduced sentence: 15 years to life

Outten

Jack

Reduced sentence: 20 years to life

Ramirez

Nathan

Reduced sentence: Life

Sanchez

Hector

Reduced sentence: Life

Shelton

Steven

Reduced sentence: 20 years to life

Smith

Randall

Reduced sentence: Life

Wiggins

Kevin

Reduced sentence: Life

Note: The data in this table are a subset of the information the OIG provided to the FBI and the Department in January 2013 and
reflect the status of those defendants’ cases at that time.

102

APPENDIX H:

DEFENDANTS WHOSE CASES WERE REVIEWED BY INDEPENDENT SCIENTISTS

(OIG PROVIDED TO THE FBI AND CRIMINAL DIVISION IN SEPTEMBER 2013)

Defendant
Count

Year
Sentenced

Jurisdiction

Last Name

First Name

CDRU
#

Examiner(s)

Definitive
Evidence of
Disclosure?

1987

US/VI

ABEDNEGO

CECIL

163

MALONE

1982

US/CA

ABU-NADI

JAMAL

4503

RUDOLPH

1988

ADKINS

CHET

1813

RUDOLPH

1984

AILLON

GUILLERMO

6598

MALONE

1994

ALEXANDER

DAVID

1210

MALONE

1984

US/OK

ALFORD

CLIFFORD

6720

THURMAN

1987

ALLEN

BLAIR

4723

MARTZ/RONAY

1983

US/MD

ALSTON

ROGER

6855

RONAY

1985

AMMAZ

LOUIS

6561

MALONE

1982

ANOHOUAK

STEVEN

6252

MALONE

n/a

ARMSTEAD

ROOSEVELT

6712

MALONE

1992

US/IL

ARNOLD

JOHN

4464

LASSWELL/WILLIAMS

1984

ARRINGTON

JOSEPH

4847

RUDOLPH/RONAY

n/a

ARROYO

MIGUEL

6415 A

MALONE

1984

ASELTINE

GUY

1890

RUDOLPH

1991

US/TX

ATOR

DEBORAH

3941

LASSWELL

n/a

US/DC

AUSTIN

WAYNE

2558

LASSWELL

1986

BAKER

MARK

1513

MARTZ

1991

BALLARD

BILLY

1898

WEBB

1979

BARKNEK

PETER

7360

WEBB

n/a

US/FL

BARR

DAVID

3838

HECKMAN

103

Notes

n/a

BAZA

JOSE

2184

WEBB

1986

BEASLEY

KEVIN

3309LL

WEBB

1991

US/PA

BECKETT

JAMES

2956

HAHN

1991

US/PA

BECKETT

JAMES

5951

HAHN

1990

BEKTAS

TONY

2842

WEBB

1992

BENNETT

ELLOWOOD

7421

WEBB

1988

US/DC

BENOIT

JEAN

274

MALONE

1992

BETZNER

GEORGE

6405

MALONE/MARTZ

1996

BLACK

KEITH

4924 LL

MARTZ/WHITEHURST/
WEBB

1985

US/PA

BOGERT

RALPH

3266

RUDOLPH/MARTZ/
JORDAN

n/a

US/DC

BONHOM

MICHAEL

6316

MALONE

1991

BORGER

ALLAN

5270

MARTZ

1979

BOSTIC

DWAYNE

7366

MALONE

1996

BOUTIN

DARLENE

979

MALONE

1981

US/CA

BOYD

DAVID

3258

RUDOLPH/MARTZ

1996

BOYLE

BENJAMIN

195

MALONE

n/a

US/FL

BRADFORD

JOHN

3838

HECKMAN

n/a

US/FL

BRADFORD

STEVEN

3838

HECKMAN

1990

US/SC

BRADLEY

TERRANCE

3430

WEBB

1984

BRIDEGAN

JAY

6488

MALONE

1988

BRIGGS

JOHN

513

MALONE

1984

BROCKELBANK

SCOTT

6569

MALONE

1985

BROOKS

ROY

6609

MALONE/RUDOLPH

1985

BROWN

DAVID

1452

MARTZ

n/a

BRYANT

DAVID

860

MALONE

104

1987

US/NE

BUCKLEY

ROBERT

MALONE

n/a

BUCKLEY

JOHN

2171

HIGGINS

1988

BUTLER

MICHAEL

187

MALONE

1979

US/MD

BYROM

JAMES

7050

RUDOLPH

1984

CAMPBELL

CLIFTON

4795

MALONE

1986

CARMICHAEL

JOHN

5150

RONAY

1992

US/NY

CASTELLANOS

LUIS

3653

WHITEHURST/HAHN

n/a

CASTRO

RAMON

2184

WEBB

1992

CATHCART

KIMBERLY

2381

LASSWELL

1992

CATHCART

SCOTT

2381

LASSWELL

1993

CLARK

HADDEN

1357

MALONE

1992

US/AR

CLARK

JAMES

3761

WHITEHURST

1980

US/WI

CLENDENNY

JOEY

6883BB

MALONE

1996

CLEVELAND

WALTER

2249

WHITEHURST

n/a

COLE

JODY

2217

WHITEHURST

1984

COMBS

JUNE

4645

RUDOLPH

1983

COOK

DOUGLAS

6336

MALONE/WEBB

1986

COOPER

MARVIN

5259

MALONE

1987

COVELL

FRED

5151

RONAY/MARTZ

1984

COX

KENNETH

4641

RUDOLPH/RONAY

1993

CRESONG

MICKEY

1274

MALONE

1994

US/PA

CROUSHORE

MARK

3891

LASSWELL

1987

CRUMP

MICHAEL

226

MALONE

1987

CRUMP

MICHAEL

466

MALONE

1984

CRUMP

BENJAMIN

6389A

MALONE

1984

CRUMP

BENJAMIN

6389B

MALONE

1986

US/MT

DANIELS

RAY

1050

MALONE

105

1988

DARNELL

CHARLES

2038

WEBB

1985

DAVID

SAMUEL

4841

MALONE/RUDOLPH

1990

DAVIS

TOMMIE

1686

MARTZ

1990

DENNARD

PEGGY

906

MALONE

n/a

US/MD

DESSER

FRANK

4843

RUDOLPH

1989

DISNEY

DAVID

606

MALONE/WEBB

1986

DONN

DUANE

5150

RONAY

1989

DORFLEI

ROBERT

4991

WILLIAMS

1996

DORRIS

ROBERT

4924 LL

MARTZ/WHITEHURST/
WEBB

n/a

US/DC

DORSEY

ALVIN

2402

LASSWELL

n/a

DRAPER

n/a

4841

MALONE/RUDOLPH

1996

DUCKETT

DARRELL

5103

HECKMAN

1985

DUGAN

BRIAN

6706

MALONE

1985

DUGAN

BRIAN

3LL

MALONE

1986

US/CA

DUPONT

MICHAEL

1047

MALONE

1986

US/CA

DUPONT

PEGGY

1047

MALONE

1989

ELDRIDGE

WOODBURY

812

MALONE

1982

FAULKNER

DONALD

6250

MALONE

1983

FENSTERMACHER

WILLIAM

6365

MALONE

1984

US/OH

FIELDS

KENNETH

7197

THURMAN

1984

US/DC

FINNEY

DON

6741

RUDOLPH/THURMAN

1985

FISHER

TERRY

1911

WEBB

n/a

FODOR

BRIAN

5152

RONAY/MARTZ

1991

FUNK

BYRON

2161

WEBB

1983

GALL

JACK

6329

MALONE

1988

US/DC

GARAY

JOSE

463

MALONE

106

1987

GARCIA

JOSE

7467

MARTZ

n/a

US/DC

GARRETT

GEORGE

1576

MARTZ

1989

GARRETT

CLIFFORD

2112

WEBB

1989

GARRETT

WILLIAM

2112

WEBB

100

1979

US/KY

GASTON

LUIS

7432

MALONE

101

1979

US/KY

GASTON

WILLIAM

7432

MALONE

102

n/a

US/DC

GATES

DONALD

6321

MALONE

103

1994

US/FL

GEOHEGAN

EDWARD

3838

HECKMAN

104

1989

GEORGE

CYRUS

412

MALONE/WEBB

1992

GEORGE

CYRUS

7421

WEBB

105

1992

GILLIAM

THOMAS

735

MALONE

106

1985

US/MD

GILLS

RODRIGUEZ

6759

THURMAN

107

1984

GLOVER

RONALD

6643

MALONE

108

1994

US/IL

GOINS

ANTHONY

1366

MALONE

109

1988

US/IL

GOMETZ

RANDY

2918

MARTZ

110

1986

GONZALEZ

FREDDY

1441

MARTZ

111

1990

GOSTICK

LESLIE

2842

WEBB

112

1984

GRAHAM

JOHN

6391

WEBB

113

n/a

US/WI

GRZELAK

BROOKE

6256 BB

MALONE

114

1985

GUERRERO

ANTHONY

6470

MARTZ

115

1988

US/CA

GUTIERREZ

ALEX

1047

MALONE

116

1988

US/CA

GUTIERREZ

WALTER

1047

MALONE

117

1987

US/MD

HAAFF

ERIC

MALONE

118

1987

HANADA

HIDEKI

449

MALONE

119

1983

US/DC

HANSFORD

TERRENCE

6352

MALONE

120

1987

HANSON

DAVID

245

MALONE

121

1985

HANSON

JOHN

6510

MALONE

107

122

1986

HARRIS

TERRY

1540

WEBB

123

1991

HART

DOMINIC

995

MALONE

124

1984

HEINZ

FOREST

6538 LL

WEBB

125

n/a

US/AL

HENRY

PATRICK

3746

LASSWELL

126

1988

HENSON

JAMES

1603

MARTZ

127

n/a

HERNANDEZ

DANNY

6524

MALONE

128

1988

HILL

CHARLES

2066

WEBB

129

1986

HILL

CHRISTOPHER

6642

WEBB

130

1989

HOEPPNER

KAREN

5174

MARTZ/RONAY

131

1984

US/DC

HONSMAN

WARNIE

6741

RUDOLPH/THURMAN

132

n/a

HORSTMAN

RODNEY

3471

MALONE

133

1987

HUDSON

JIMMY

318

MALONE

134

1982

HUF

JAY

6260

MALONE

135

1987

HUFFINGTON

JOHN

5196

MALONE

136

n/a

HUNTER

KEVIN

176

MALONE

137

1979

US/MD

HUTTON

JOSEPH

7050

RUDOLPH

138

1981

HYDE

ANTHONY

7492

MALONE

139

1988

ICGOREN

NURI

553

WEBB

140

n/a

IGLESIAS

WILLIAM

2184

WEBB

141

1995

IRWIN

DOUG

1281

MALONE

142

1986

IVERSON

JAMES

295

MALONE

143

n/a

JACKSON

KEITH

563

MALONE

144

1985

JACOBS

BRYSON

4841

MALONE/RUDOLPH

145

1982

JACOX

DARREL

6236

MALONE

146

1979

US/MD

JASON

PIERRE

7050

RUDOLPH

147

1985

JOHNSON

RUEBEN

1438

MARTZ

148

n/a

JOHNSON

WARREN

2177

HIGGINS

108

149

n/a

JOHNSON

DAVID

2217

WHITEHURST

150

1981

US/CA

JOHNSON

RODNEY

3258

RUDOLPH/MARTZ

151

1979

US/MD

JOHNSON

ARTHUR

7050

RUDOLPH

152

1986

JONES

ERROL

187

MALONE

153

1994

JONES

BRYAN

869

MALONE

1994

JONES

BRYAN

867B

MALONE

154

1989

US/MO

JONES

MICHAEL

3053

MARTZ

155

n/a

US/FL

JONES

ROBERT

3838

HECKMAN

156

n/a

US/CA

JONES

JEFFREY

3911

LASSWELL

157

n/a

JONES

ALAN

6379

WEBB

158

n/a

JUDE

YANCEY

7089

JORDAN/RUDOLPH

159

n/a

KAISER

DAVID

2217

WHITEHURST

160

1982

KANARAS

DENO

5196

MALONE

161

1987

KAWANO

EIICHI

449

MALONE

162

1981

KELINO

RICO

6897

WEBB

163

1982

KELLEY

RONALD

7488

MALONE

164

1987

US/CA

KELLOGG

ARTHUR

1047

MALONE

165

1985

KENNEDY

RONALD

7177

JORDAN/RUDOLPH

166

1987

KNAPP

JAMES

5157

RUDOLPH/RONAY

167

1991

KOSMAS

STANLEY

253

MALONE

168

1980

KOUTCHAK

FREDDIE

7378

MALONE

169

1984

US/OH

KRACK

CHARLES

7197

THURMAN

170

1991

KROUPA

JAMIE

2217

WHITEHURST

171

1979

KUCABA

GEORGE

7360

WEBB

172

n/a

US/MD

LA FON

HERBERT

7050

RUDOLPH

173

1984

LAMBERT

NEWTON

6358

MALONE

174

1983

US/SC

LANEY

DENNIS

6784

THURMAN

109

175

1984

US/OK

LAUBACH

THOMAS

6720

THURMAN

176

1991

LEE

SAMMY

995

MALONE

177

1994

LEE

MICHAEL

995

MALONE

178

1979

LEWIS

JAMES

5866

MALONE

179

1985

LINDSAY

RICARDO

4847

RUDOLPH/RONAY

180

1989

LOMBARDO

TERRY

702

MALONE

181

1984

LONG

ROBERT

2105

MALONE

n/a

LONG

ROBERT

3559

MALONE

1985

LONG

ROBERT

5319

MALONE

1985

LONG

ROBERT

5521

MALONE

n/a

LONG

ROBERT

5567

MALONE

1985

LONG

ROBERT

5632

MALONE

n/a

LONG

ROBERT

5747

MALONE

n/a

LONG

ROBERT

5748

MALONE

n/a

LONG

ROBERT

5749

MALONE

1985

LONG

ROBERT

6649

MALONE

182

1981

US/CA

LOO

CLDE

3258

RUDOLPH/MARTZ

183

1991

LOY

MICHAEL

2213

WHITEHURST

184

1979

US/KY

LUNSFORD

DENNIS

7432

MALONE

185

1987

MAGOUIRK

KENNETH

310

MALONE

186

1983

MALONE

HENRY

6423

MALONE

187

n/a

MARCA

BRADLEY

4690

RUDOLPH/THURMAN

188

1986

US/FL

MARKS

EDWARD

3113

MARTZ

189

1988

MARTA

JUAN

1992

WEBB

190

n/a

MARTINEZ

ELEVIAL

6524

MALONE

191

1985

MARTINO

JOSEPH

6514

MALONE

192

1979

MASON

GERALD

6897

WEBB

110

193

1991

MATHIS

JOHNNY

995

MALONE

194

1988

US/PA

MCFADDEN

RANDALL

3749

WHITEHURST

195

1986

MCGHEE

GEORGE

172

MALONE

196

1982

MCGOWAN

THOMAS

6269

MALONE

197

1994

MCINTURFF

PAUL

1249

MALONE

198

1982

US/MN

MCIVOR

DONALD

6255

MALONE

199

1983

US/DC

MCLAMORE

RAY

6352

MALONE

200

n/a

MEADOWS

JAMES

4855

RUDOLPH

201

n/a

MEDLEY

BRENT

2217

WHITEHURST

202

1984

MEDWIN

DANIEL

6405

MALONE/MARTZ

203

1988

US/PR

MENA

EDUARDO

3285

MARTZ

204

1990

METCALF

TOMMY

7309

WEBB

205

1994

MILLER

GEORGIA

1280

MALONE

206

1994

MILLS

GARY L.

964

MALONE

207

1993

MILLS

GARY
LORENZO

1023

MALONE

208

1991

US/LA

MINOR

ADOLF

MALONE

209

1995

MITCHELL

THOMAS

1903

WEBB

210

1993

MONTESI

MARYBETH

2271

LASSWELL

211

1987

US/NM

MORGAN

WAYNE

1065

MALONE

212

1987

MORRIS

SAM

450

MALONE

213

1989

MOSER

WILLIAM

1937

WEBB

214

1985

MUGGLEBERG

JOHN

4650

RUDOLPH

215

1987

MULROY

DANIEL

1626

MARTZ

216

1994

NAWARA

JASON

2252

WHITEHURST

217

1986

US/DC

NELSON

DERRIS

130

MALONE

218

1995

NELSON

JOSEPH

2255

WHITEHURST

111

219

1991

NIXON

WILLIE

995

MALONE

220

1986

US/MT

NORUNNER

HAROLD

1054

MALONE

221

1990

NOWLIN

JAMES

3442 LL

WEBB/HAHN

222

1983

OREAR

DAVID

6368

MALONE

223

1991

OWENS

TYRONE

995

MALONE

224

1989

US/TN

OWENSBY

MARVIN

3372

JORDAN/WEBB

225

1993

PAGE

TYRONE

1222

MALONE

226

1993

PAGE

JEROME

1222

MALONE

227

1982

PAINTER

MICHAEL

4624

RUDOLPH

228

1983

PALLITO

RICHARD

6320

MALONE

229

1986

PANNINGONA

ROXY

1920

WEBB

230

1985

PANTOJO

EDWIN

6415 A

MALONE

231

1988

PARKER

JOSEPH

576

MALONE

232

n/a

US/CA

PAYNE

ZERRICK

3911

LASSWELL

233

n/a

PEAKE

ALLEN

5320

MALONE

234

1990

PELTOLA

RONALD

1727

MARTZ

235

1991

PEREZ

AUGUSTINE

967

MALONE

236

1995

US/WA

PETRYKIEVICZ

OLIVER

2645

WILLIAMS

237

1980

US/WI

PHILLIPS

GEORGE

6883BB

MALONE

238

1987

US/CA

PILASKI

PETER

4353

RONAY/RUDOLPH

239

1987

PINCKNEY

MICKELL

7467

MARTZ

240

1983

US/DC

PLATER

DARRYL

6352

MALONE

241

1987

POINDEXTER

RANDY

2036

WEBB

242

1983

POSTON

BILLY

6241

WEBB

243

1986

PREAST

TIMOTHY

4908

THURMAN

244

1991

RAMOS

GABRIEL

902

MALONE

245

1989

RANSON

GERALD

MALONE

112

246

1987

REDD

ALVIN

1596

MARTZ

247

1987

US/KY

REED

CRAIG

3001

MARTZ

248

1987

US/KY

REED

STEPHEN

3001

MARTZ

249

1992

REYNOLDS

DWIGHT

1172

MALONE

250

1989

RICE

GAIL

1648

MARTZ

251

n/a

RICE

n/a

4841

MALONE/RUDOLPH

252

n/a

ROBB

MAURICE

5081

JORDAN

253

1989

ROBINSON

MARK

2054

WEBB

254

1983

ROMPAEY

STEVEN

4494

RUDOLPH

255

1984

SANCHEZ

HECTOR

6538 LL

WEBB

256

1988

SANTOS

HENRY

1614

MARTZ

257

1988

US/IL

SAUNDERS

PETER

5801

HECKMAN

258

1982

SCARBOROUGH

LARRY

6283

MALONE

259

1988

SCHINDLER

PATRICK

1625

MARTZ

260

1988

US/CA

SCHUMAKER

CARL

4719

RUDOLPH/RONAY

261

1989

US/MO

SCHWYHART

JASON

3053

MARTZ

262

1990

SCURRY

WILLIE

709

MALONE

263

1995

SEEMS

GEORGE

5110

HECKMAN

264

1983

SEFTON

SCOTT

6277

MALONE

265

1992

US/CA

SEILER

WILLIAM

3399

THURMAN/WEBB

266

n/a

SHAHAN

DAWSON

278

MALONE

267

1986

SHARP

CARL

187

MALONE

268

1989

SHAW

JOHNATHAN

837

MALONE

269

1992

SHEFFEY

ROLF

5116

LASSWELL/HECKMAN

270

1994

SHEREN

DAVID

1280

MALONE

271

1987

US/CA

SMALL

SHAUN

4353

RONAY/RUDOLPH

272

1991

SMITH

JOHN

995

MALONE

113

273

1993

SMITH

VIRGIL

2490

LASSWELL

274

n/a

US/PA

SMITH

EARL

2579

HAHN

275

1985

SMITH

MITCHELL

4752

LASSWELL/THURMAN/
RUDOLPH

276

1983

US/DC

SMITH

THOMAS

6352

MALONE

277

1989

SNIDER

GEORGE

5174

MARTZ/RONAY

278

1986

SOLOMAN

JERRY

5259

MALONE

279

n/a

SOUSA

LEROY

1680

MARTZ

280

1991

ST. JACQUES

ROGER

4970LL

WHITEHURST

281

1987

STACKHOUSE

ANTHONY

430

MALONE

282

1980

STAFFORD

JIMMY

7225

RUDOLPH

283

1982

US/ID

STONE

LEBURN

6299

MALONE

284

1990

STORDAHL

BRIAN

837

MALONE

285

1990

STRAWHACKER

LONNIE

846

MALONE

286

1992

STYER

BRETT

1165

MALONE

287

1988

TAFT

RANDY

468

MALONE

288

1983

TAIT

TIMOTHY

6282

MALONE

289

1985

US/DC

TERRY

WALTER

6601

MALONE

290

1987

THEBERGE

BARBARA

2039

WEBB

291

1985

THOMAS

CURTIS

6437

MALONE

1985

THOMAS

CURTIS

6446

MALONE

292

1984

US/OH

THOMAS

CARL

7197

THURMAN

293

1989

THOMPSON

KEVIN

588

MALONE

294

1983

THOMPSON

WILLIE

6391

WEBB

295

1985

THORNTON

DAVIS

4495

RUDOLPH

296

1991

TIBBETTS

DAROLD

755

MALONE

297

1987

TILSON

MARTIN

5477

WEBB

114

298

1981

TOLERTON

KENYON

5911

MALONE

299

1994

TOMPKINS

THEODORE

5121

WHITEHURST/
HECKMAN

300

1986

TOOVAK

TIMOTHY

1493

MARTZ

301

1990

TREZELL-BURNS

MARTINNIE

742

MALONE

302

1994

TRINE

TERENCE

2271

LASSWELL

303

1990

TRUTT

FRAN

5022

WILLIAMS

304

n/a

US/FL

TUTTLE

WILLIAM

3838

HECKMAN

305

n/a

VALENCIA

HELMER

6415 A

MALONE

306

1990

VARNER

CHARLES

653

MALONE

307

1987

VELASQUEZ

MARIO

1978

WEBB

308

n/a

VINDUSKA

ERIC

2217

WHITEHURST

309

n/a

VINSON

JERRY

6906

MALONE

n/a

VINSON

JERRY

7402

MALONE

310

n/a

US/CA

WALLACE

CONKLIN

6755 BB

THURMAN

311

n/a

US/CA

WALLACE

ARTHUR

6755 BB

THURMAN

312

n/a

WARAKIA

JOSEPH

2184

WEBB

313

1989

WATERMAN

JEROME

465

MALONE

314

1988

WEAVER

PATRICIA

2023

WEBB

315

n/a

WEBSTER

RICHARD

4787

RUDOLPH

316

1984

WHITE

CURTIS

4669

RUDOLPH

317

1980

US/WI

WIENEKE

DENNIS

6883BB

MALONE

318

1993

WIKARYASZ

ROBERT

2459

LASSWELL

319

1993

WIKARYASZ

JASON

2459

LASSWELL

320

1984

WILKIE

JEFFERY

6577

MALONE

321

1991

WILKINSON

TIMOTHY

2136

WEBB

322

1988

WILLIAMS

ROY

680

MALONE

115

323

1983

US/DC

WILLIAMS

RODNEY

6352

MALONE

324

n/a

US/DC

WILLIS

JAMES

1806

RUDOLPH

325

1993

US/AR

WILSON

ANDRE

1375

MALONE

326

1991

US/ID

WINSLOW

ROBERT

3643

LASSWELL/HAHN/
WHITEHURST

327

1986

US/VI

WONG

ALLAN

1517

MARTZ

328

1984

WOODWARD

JEFFREY

1890

RUDOLPH

329

n/a

US/PA

WOODY

MICHAEL

3379

WEBB

330

1988

WRIGHT

BETTY

671

MALONE

331

SEALED CASE

164

MALONE

332

SEALED CASE

2323

LASSWELL

333

SEALED CASE

4697

RUDOLPH

334

SEALED CASE

5070

MARTZ

335

SEALED CASE

5072

MARTZ

336

SEALED CASE

5172

RONAY

337

SEALED CASE

5552

LASSWELL

338

1984

US/OK

YATES

STEPHEN

6720

THURMAN

339

1988

YEARTY

RICHARD

538

MALONE

340

1989

YELTON

JILL

2836

MARTZ

341

1987

YONEDA

KOICHI

449

MALONE

342

n/a

YOUNG

MELVIN

1680

MARTZ

343

1979

US/MD

YOUNG

MICHAEL

7050

RUDOLPH

344

1979

ZOGRAFOS

IOANNIS
(JOHN)

7404

MALONE

116

345

1988

OSWALT

CHARLES

586

MALONE

Task Force likely
produced
independent
scientist’s report
(ISR) in response
to defendant’s
Freedom of
Information Act
request.

346

1985

DICKERSON

TROY

137

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

347

1988

FRAME

JOHN

634

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

1988

FRAME

JOHN

635

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

348

1990

GRADY

ISAIAH

793

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

349

1982

IGLES

RUDENE

6345

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

117

350

1994

JONES

AUSTIN

124

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

351

1993

KOHUT

MARK

1282

MALONE/LASSWELL

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

352

1998

MCLENDON

DEWAYNE

6544

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

353

1992

MILFORD

ROBERT

1207

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

354

1982

MITCHELL

ROBYN

6345

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

355

1991

MORDENTI

MICHAEL

808

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

118

356

n/a

PATE

STEPHEN

129

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

357

1993

PELLETT

JEFFREY

1282

MALONE/LASSWELL

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

358

1988

PERKINS

BRIAN

634

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

1988

PERKINS

BRIAN

635

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

359

1985

PHOMMARNK

SOVKA

137

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

360

1989

PILGRIM

WALTER

694

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

119

361

1982

REESE

ANGELA

6345

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

362

1991

RICE

LARRY

2304

LASSWELL

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

363

1993

ROURK

CHARLES

1282

MALONE/LASSWELL

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

364

1986

SHEPARD*

CLAYBORN

254A

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

1986

SHEPARD*

CLAYBORN

254B

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

1993

SMITH

DONALD

2055

WEBB

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

365

120

366

1991

TORRES

FELIX

920

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

367

1984

WILLIAMS

TIM

6480

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

368

1990

WILSON

BETTY

1642

MARTZ

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

369

1985

XAYAVONG

SOMATH

137

MALONE

Hillsborough
County case. St.
Petersburg Times
article in file
referencing
disclosure.

370

1984

BARD

JAMES

6427

MALONE

Prosecutors
communicated to
the Task Force
that they would
disclose the ISR.
Forms of
communication
include: call, fax,
and letter.

371

1994

BELL

WILLIE

5403

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

121

372

1986

BENDER

COLUMBUS

55LL

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

373

1986

BENDER

GEORGE

55LL

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

374

n/a

BRIDGER

FRANKLIN

6297

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

375

1996

COFFMAN

BRIAN

4934

HIGGINS/WHITEHURST

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

376

1984

DAVIS

JOETTE

6523

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

377

1992

DOLAN

MICHAEL

862

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

378

1993

GREEN

ANTHONY

6300

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

379

1984

GUNN

GREGORY

6523

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

122

380

1986

HODGE

TERRY

1466

MARTZ

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

381

1980

KINGOSAK

JIMMY

7392

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

382

1988

KYLES

TARRAN

352

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

383

1986

RUTLEDGE

DAVID

250

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

384

1984

SMITH

NATHAN

6558

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

385

1980

SPENCER

RICK

6945

MALONE

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

386

1982

WILLIAMS

WAYNE

5746

WEBB

Prosecutor
communicated to
the Task Force
intent to disclose
the ISR.

387

1989

REUTTER

DAVID

5855

MALONE

St. Petersburg
Times article
referencing ISR
findings.

123

388

1993

BOGLE

BRETT

1029

MALONE

Yes

Evidence of
disclosure
referenced in
court documents.

389

1992

US/DC

BRAGDON

ANTHONY

5497

MALONE

Yes

Evidence of
disclosure
referenced in
court documents.

390

n/a

ASHERMAN

STEVEN

5456

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

391

1993

BLEAU

CARLTON

591

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

392

n/a

CARSON

CLAUDE

1194

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

124

393

1986

US/MO

CARTER

HERMAN

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defense/counsel
and (2) copy of the
disclosure letter.

394

1986

DILORENZO

ALFRED

171

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

395

1984

GIFFING

RONALD

6596

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

396

1986

IRICK

BILLY

5284

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

125

397

1992

JACKSON

JAMES

996

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

398

1987

JACKSON

MICHAEL

1553

MARTZ

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defense/counsel
and (2) copy of the
disclosure letter.

399

1983

MAYO

GERALD

4703

RUDOLPH/
LASSWELL

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defense/counsel
and (2) copy of the
disclosure letter.

400

n/a

US/TX

ORTLOFF

ROBERT

3405

THURMAN

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defense/counsel
and (2) copy of the
disclosure letter.

126

401

1986

PITTMAN

DONALD

168

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

402

1988

SUGATCH

ALEX

443

MALONE

Yes

Two letters in the
file: (1) prosecutor
letter to Task
Force stating that
the ISR was
disclosed to
defendant/counse
l and (2) copy of
the disclosure
letter.

127

APPENDIX I:

DEPARTMENT RESPONSE TO OIG REPORT

U.S. Department of Justice
Office of the Deputy Attorney Gen eral

Oif.:e ofthe Deputy Attorney Gene raJ

Washington, D.C . 20530

July9,2014
MEMORANDUM
TO:

Cynthia Sclmedar
Deputy Inspector General

THROUGH: Nina S. Pelletier
Assistant Inspector General
Evaluation and Inspections
FROM:

Brette L. Steele
Senior Advisor on Forensic Science
Senior Counsel to the Deputy Attorney General

SUBJECT:

Department of Justice's Response to the Office of the Inspector General's
Assessment of the 1996 Department TaskForce Review ofthe FBI Laboratory

The Department of Justice (Department) appreciates the opportunity to respond to the
Office of the Inspector General's Formal Draft Assessment ofthe 1996 Department TaskForce
Review ofthe FBILaboratory (Assessment). The 2014 OIG Assessment details the findings of,
and recommendations resulting from, the OJG's two-year review of the work of a Department
Task Force (Task Force), which worked from 1996 to 2004 to conduct an unprecedented review
of analysis and testimony performed by certain criticized examiners employed by the
Laboratory Division of the FBI (FBI Lab). The Department created the Task Force to ensure
that defendants' rights to a fair trial were not affected by the conduct of the criticized
examiners. The Assessment recognizes the importance, magnitude, and complexity of the work
undertaken by the Task Force, as well as the dedication of the persons who staffed the Task
Force over that nine-year period. Despite the Task Force's efforts, the OJG concludes that there
were deficiencies in the design and implementation of the Task Force review and makes five
recommendations to address the deficiencies.
The passage of nearly 20 years since the Task Force began its work, the departure from
the Department of all but one of the persons involved in the work of the Task Force, and
incomplete Task Force records have made it difficult authoritatively to answer many of the
criticisms lodged by the OIG. While a number of the OIG's criticisms are valid, below we
discuss the areas in which the Department contends that the OJG's criticisms are unsupported.
The Department nevertheless concurs in all five recommendations and, as noted below, already
has taken significant steps towards their implementation.

128

It should be noted that the allegations of faulty lab work and testimony are historical in
nature. Decades ago, the FBI corrected the deficiencies that led to the creation of the Task
Force and the FBI Lab continues to provide reliable forensic analysis to law enforcement
authorities around the world. In September 1998, the FBI Lab became accredited by the
American Society of Crime Laboratory Director's/Laboratory Accreditation Board and has
maintained such accreditation. In addition, the FBI Lab restructured the Explosives Unit;
changed its report preparation methods and examiner roles; mandated peer review of all reports;
instituted mandatory proficiency testing for examiners; and established requirements for case
file documentation and retention. The FBI Lab also developed written training programs for
each discipline; guidelines for the monitoring of examiner testimony; and formalized protocols
for scientific analyses and evidence handling. In addition, as discussed below, the Department
has partnered with the National Institute of Standards and Technology at the Department of
Commerce to lead a government-wide effort to improve the quality and consistency of work in
the area of forensic science.

1996 TASK FORCE REVIEW
I.

Department Initiated Unprecedented Review of Work of Certain Criticized FBI Lab
Examiners

In early 1996, the Department created a task force to conduct a preliminary review of
allegations by Supervisory Special Agent Frederic Whitehurst (Whitehurst) impugning the
qualifications and performance of certain FBI Lab examiners. Contemporaneous with the
initial efforts by the Task Force, the OIG conducted its own evaluation of Whitehurst's
allegations, which culminated in the issuance of a report entitled The FBI Laboratory: An
Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and
Other Cases (1997 OIG Report). Although the OIG did not find merit in the vast majority of
Whitehurst's allegations, it did identify problems with 13 examiners from three forensic units,
and suggested that the work of the criticized examiners be reviewed. Thereafter, the
Department tailored the scope ofthe Task Force review to address the concerns identified in the
1997 OIG Report.
As recognized by the OIG, the Task Force review was unprecedented both in its
magnitude and its complexity. Given both the volume and the age of cases potentially
implicated by the findings in the 1997 OIG Report, the Department understandably faced
significant challenges defining the parameters and coordinating the logistics of the review.
Despite the challenges, the Department made a diligent effort to conduct the review being
faithful to its ultimate purpose, which was to ensure that no defendant's right to a fair trial was
jeopardized by the performance of a criticized examiner.
II.

Department Leadership Was Active in Formulation of Task Force Mission and Gave
Adequate Consideration to Prosecutors' Disclosure Obligations

With the benefit of hindsight, the Department agrees that certain aspects of the Task
Force review could have been more efficient or effective. However, the Department disagrees
with the OIG's contention that "there was an absence of planning and forethought with regard
to disclosures to defendants that may be required as a result of the Task Force's findings," and
2

129

that there is "no evidence that senior management considered the threshold for when
disclosures of information to defendants would be legally required" in cases involving one or
1
more of the criticized examiners
As reflected in numerous memoranda and other correspondence, some of which are
discussed below, the Department's senior leadership was very active in the formulation of the
Task Force and its mission, and went to great lengths to stress both the seriousness of the
allegations against the questioned examiners and the importance of making disclosures to
defendants where required by law or ethical obligations. For example, in a memorandum to all
United States Attorneys, dated January 4, 1996, then Acting Assistant Attorney General John C.
Keeney stressed the need for high-level involvement by supervisors in the United States
Attorneys' Offices in the case-specific disclosure decisions:
It is important at the outset for supervisory personnel in each affected U.S.

Attorney's Office to participate in the decision-making process regarding the
disclosure or nondisclosure of Whitehurst materials in individual cases [ ... ]
we request that the Chief of the Criminal Division for each U.S. Attorney's
Office, or an equivalent or higher supervisory official, be involved in the
decision-making process in every case in which the Government must decide
whether Whitehurst materials should be disclosed.
To effectuate the OIG-directed review, on April 15, 1997- the same date on which the
1997 OJG Report was issued- the Department disseminated a copy of the report to all United
States Attorneys, and requested that they share the report with their state and local counterparts.
FBI leadership also disseminated the 1997 OJG Report to its field offices, and directed agents to
contact either the local law enforcement official who requested that certain evidence be
examined by the FBI Lab, or the prosecutor who handled any related prosecution.
Moreover, on June 6, 1997, the Department disseminated to all United States Attorneys,
and all Criminal Division Section Chiefs a memorandum both summarizing the 1997 OJG
Report, and providing specific guidance and instruction regarding the steps that both the FBI
and federal prosecutors would need to take to ensure that every criminal defendant was, or had
been, afforded a fair trial. The memorandum highlighted that the Department's receipt of the
1997 OJG Report as well as certain responsive actions triggered consideration of prosecutors'
constitutionally-mandated disclosure obligations. In addition, the Department provided federal
prosecutors with guidance addressing prosecutors' obligations under both Brady v. Maryland
and Giglio v. United States in the context of the specific allegations regarding the qualifications
and performance of certain criticized FBI Lab examiners.
During the summer of 1997, the Department determined that (I) the review would
encompass cases identified as involving the 13 examiners criticized by the OIG; (2) for cases
that resulted in a conviction, the Task Force would seek from the responsible federal, state, or
local prosecuting authority an assessment of whether the work ofthe criticized examiner was
material to the conviction and, if not, to secure a written explanation of why the prosecutor did
not consider it to be material; (3) if the prosecutor determined that the work of the criticized
1

2014 OJG Assessment at 9.
3

130

examiner was material to the conviction, or if the prosecutor either did not provide a materiality
assessment or requested further review of the examiner's findings or testimony, the FBI would
contract with an independent scientist to conduct a complete review of the examiner's findings
and any related testimony (Independent Scientific Review or ISR); and (4) once the ISR was
completed, the FBI was to furnish the results to the Task Force, which would then provide the
same to the responsible (federal, state, or local) prosecutor. The ISRs involved a review of the
Lab examiners' bench notes, reports, and transcripts of any trial testimony; and did not involve
re-examination of physical evidence.
Ultimately, the Task Force identified nearly 8,000 federal and state cases involving the
13 criticized examiners, of which cases approximately 2,900 resulted in convictions 2 The Task
Force provided notice ofthe 1997 OJG Report to the prosecutors who handled the 2,900 cases.
The Task Force referred to the FBI for ISRs approximately 312 cases, which figure includes
both cases in which prosecutors made affirmative materiality determinations, and cases in
which prosecutors either did not make a materiality determination or requested a review by an
independent scientist. Notably, in the vast majority of cases, the prosecutors determined that
the analysis or testimony of a criticized examiner was not material to the conviction. As the
OIG notes, in almost eighty percent of cases, the Task Force transmitted the ISR report to the
responsible prosecutor less than three weeks after the Task Force received the ISR report from
the FBI.
III.

The Task Force Provided Sufficient Information and Guidance to Prosecutors to Enable
Prosecutors to Make Materiality Determinations and Satisfy Disclosure Obligations.

The OIG contends that the Department improperly left with field prosecutors the
responsibility for making appropriate disclosures to defendants or defense counsel where ISRs
were critical of the examiners' work. Regarding the ISRs, in particular, the OIG argues that the
Department "should have required federal prosecutors, and strongly encouraged state
prosecutors, to disclose the independent scientists' reports to the defendants when the reports
concluded that the material Lab evidence was unreliable," and "should have provided firm
guidance to federal and state prosecutors regarding the effect of an independent scientist's
conclusion that the Lab analysis or testimony was unreliable on a prosecutor's disclosure
obligation." 3
As previously noted, in its communications with both federal and state prosecutors
throughout the Task Force review, the Department stressed the significance of 1997 OJG
Report and provided guidance regarding related disclosure obligations. Although the guidance
was not case specific, as the OIG suggests that it should have been in the context of the ISR
report transmittals, it was tailored to the facts and circumstances surrounding the allegations
contained in the 1997 OJG Report regarding the qualifications and performance of specific
criticized forensic examiners.
The Department disagrees with any suggestion that the decisions to rely on field
prosecutors - whether federal or state -to both make materiality determinations and assess their
2

See 2014 OJG Assessment at 26, Figure 3.

2014 OJG Assessment at 89.
4

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disclosure obligations was inappropriate. The decision to leave the materiality and disclosure
obligations to prosecutors in the field recognized that such persons were the most familiar with
both the underlying facts of a particular case and the governing case law and applicable rules
and, therefore, in the best position to make such decisions in accordance with their ethical
responsibilities to satisfy discovery obligations. The decisions also properly took into account
that most of the affected cases were handled by state prosecutors over whom the Department
did not, and does not, have supervisory authority.
As a general matter, the transmissions of the ISR reports included both a reminder that
the prosecutor should consider the results in light of his or her disclosure obligations, and a
copy of the aforementioned Brady Memorandum if the memorandum had not previously been
shared. And transmittal of the ISR report often was the final step in what had been an ongoing
exchange between the Task Force and the prosecutor in which the prosecutor already had
reviewed the 1997 OJG Report and made a materiality determination and, therefore, had
considered the potential import of the independent scientist's conclusions, including whether
the results may require disclosure to the defendant. In addition, the ISR reports were clear and
concise, and a cursory review would have been sufficient to allow any prosecutor to discern
whether there were deficiencies in the examiner's work.
The OIG correctly notes that the Task Force did not monitor, as a matter of course,
whether prosecutors notified defendants or defense counsel of the results of the ISRs. But the
Task Force's failure to monitor does not support the conclusion that prosecutors did not provide
the results to the defendants or defense counsel.
IV.

The Decision to Have Independent Scientists Conduct File Reviews Was Appropriate

The OIG faults the Department for relying on the above-described file reviews of the
analysis and testimony of the criticized examiners, and for failing to require re-testing of
physical evidence in certain circumstances, 4 yet the ISR process was reasonable and effective in
identifying deficiencies in work performed by the criticized examiners, as the ISR process
conformed to ASCLD/LAB accreditation criteria for technical review at that time. Areexamination ofthe physical evidence would have both extended an already protracted review,
and hampered the Task Force's ability to timely notify prosecutors when deficiencies in the lab
work were identified.
CONCURRENCE IN THE OIG'S RECOMMENDATIONS
Throughout the course of the OIG's review of the work of the 1996 Task Force, which
culminated with the Assessment, the OIG shared some of its preliminary findings and
recommendations with the Department- particularly those that the OIG believed required
prompt action. The Department appreciates that the OIG shared information with Department
leadership as this review progressed, which allowed the Department to begin taking corrective
actions well before the OIG's Assessment issued.
In the spring of2013, the Department initiated its own formal review of the Task Force
4

2014 OJG Assessment at 80.
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files (Current Department Review), and currently is reviewing all cases handled by the Task
Force in an effort to determine whether defendants in cases for which the laboratory work was
material to their conviction received actual notice of the criticisms reflected in the 1997 OJG
Report and, where applicable, a copy of any independent scientific review undertaken if it
identified deficiencies in the work of the questioned examiner. If the Department is unable to
confirm that the defendant received notice of the criticisms reflected in the 1997 OJG Report or
a copy of an ISR report critical of an examiner's work, the Department will attempt to locate
such defendants and provide them with such notice and a copy of the ISR report. The
Department is also reviewing cases where there was no materiality determination made by a
prosecutor but where an ISR was nevertheless conducted. This typically occurred in a small
number of cases where prosecutors failed to respond to the Task Force's request for a
materiality determination. In such cases, ifthe ISR report is critical ofthe examiner's work, the
Department will take steps to provide the defendant with a copy of the report.
The Department concurs in all five recommendations in the 2014 OJG Assessment and,
as noted below, already has complied with certain recommendations, either in whole or in part.
•

Regarding the OIG's first recommendation, the Department prioritized the review of
cases in which a defendant is currently awaiting execution. As of October 2013, the
Department either had confirmed that all defendants currently awaiting execution (or
awaiting resentencing or retrial for capital offenses) previously had received appropriate
notice, or provided case-specific notice to those for which notice could not easily be
confirmed through documents in the file or open source material.

•

Regarding the OIG's second recommendation, in death penalty cases in which the
defendant is deceased, the FBI will work with state prosecutors to facilitate the reexamination of available physical evidence previously analyzed by one of the criticized
examiners or, if such reexamination is not possible, the review of the criticized
examiner's reports, bench notes, or testimony. 5 And, if the "results are contrary to [the]
original Lab finding or are potentially exculpatory or impeaching," the Department will
coordinate with state prosecutors and defense organizations to "ensure effective and
appropriate notification" to the decedent's next of kin.

•

Regarding the OIG's third recommendation, the Department is reviewing files in which
either a prosecutor determined that evidence provided by an FBI Laboratory examiner
was material to a defendant's conviction, or where an ISR was performed irrespective of
the materiality determination, to ensure the defendant was on notice of the criticisms
reflected in the 1997 OJG Report, and received a copy ofthe ISR report, if it contained
any criticisms of the work of the questioned examiner. If such disclosures cannot be
documented, the Department will seek to locate the defendant to make that disclosure.
As noted above, this review process is well underway.

Consistent with Laboratory Quality Assurance Standards and ASCLD/LAB requirements, the
FBI's ability to re-test physical evidence will depend on the quality and quantity of the physical
evidence (e.g., whether it has been contaminated or degraded), and whether chain of custody
can be established. At this time, it appears that evidence might be available and capable of
retesting in at most one case out of the 9 cases that are subject to this recommendation.
6

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•

Regarding the OIG's fourth recommendation, the Department intends to partner with
state prosecutors and defense organizations to ensure broad notice that "the Task Force
did not review all criminal cases resulting in a conviction that involved I or more of the
criticized FBI Lab examiners and that, as a result, notification may not have been
provided to convicted defendants about deficiencies in the Lab analysis used in their
cases."

•

Regarding the OIG's fifth recommendation, the Department is, and will continue to,
track "notice to specific defendants or defense counsel and the steps taken to provide
constructive notice to categories of defendants whose identities are unknown or
unidentifiable."

The Department will continue to cooperate with, and update, the OIG regarding the
Department's progress in complying with all of the recommendations.

OTHER CORRECTIVE ACTION
I.

The Department Is Conducting a Comprehensive Review of Hair Comparison Analysis

As noted in the 2014 OJG Assessment, a disproportionate number of problem cases
involved hair and fiber analysis or testimony- in particular by examiner Michael Malone
(Malone). And, following several reports of exonerations based in whole or in part on the
introduction at trial of faulty hair comparison analysis or testimony, in 2012, the FBI, in
coordination with the Department, initiated a comprehensive review of microscopic hair
comparison analysis or testimony provided in more than 20,000 cases prior to December 31,
1999, when mitochondrial DNAt~sting became routine at the FBI Lab6 The purpose of this
review, which is ongoing, is to ensure that analysis or testimony by FBI Lab personnel
regarding hair comparison properly reflected the bounds of science, and that no person is or has
been deprived of a fair trial based on flawed analysis or testimony.
Unlike the 1996 Task Force review, the review of hair comparison analysis or testimony
is not limited to the work of particular examiners. Rather, it focuses more broadly on analysis
or testimony by all FBI hair comparison examiners who found positive associations between
evidentiary hair and a known hair sample.
The Department has been working in cooperation with both the Innocence Project and
the National Association of Criminal Defense Lawyers, and is committed to employing
practices and procedures that are intended to ensure an efficient and meaningful assessment of
the historical work of all hair examiners, and effective and documented notice to affected
defendants.

The Criminal Division has provided the FBI with copies of all case files that were captured by
the 1996 Task Force review that involved hair comparison analysis in which Examiner Malone
was the primary or confirming examiner.
7

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II.

The Department Is Committed to Promoting the Use of Reliable Forensic Evidence in
the Criminal Justice System

Both the 1997 OJG Report and resulting Task Force review were prompted by concerns
that unreliable forensic analysis or testimony may have compromised defendants' fair trial
rights. The Department recently demonstrated its continued commitment to promoting the use
of reliable forensic evidence in the justice system by partnering with the National Institute of
Standards and Technology (NIS T) at the Department of Commerce to lead a government-wide
effort to strengthen and enhance the practice of forensic science.
Through this partnership, the Department established the National Commission on
Forensic Science, which is co-chaired by the Deputy Attorney General and the Acting Director
ofNIST. The Commission's members are drawn from federal, state, and local forensic science
service providers; research scientists and academics; law enforcement officials; and defense
attorneys, prosecutors, and judges. The Department has also consulted in the creation of the
Organization of Scientific Area Committees, which will support the development of best
practices, guidelines, and standards to improve quality and consistency of work in the forensic
science community.
CONCLUSION
The Department appreciates having been afforded the opportunity to respond to the
2014 OJG Assessment. The Department will continue to work in cooperation with the OIG to
effectuate compliance with its recommendations.

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APPENDIX J:

OIG ANALYSIS OF DEPARTMENT RESPONSE

The Office of the Inspector General (OIG) provided a draft of this
report to the Department of Justice (Department), which coordinated its
review of the draft with the Federal Bureau of Investigation (FBI). The
Department’s and the FBI’s consolidated response is attached to this
report as Appendix I. The OIG’s analysis of the Department’s response
and the actions necessary to address the recommendations are
discussed below.
The OIG recognizes the difficulties the Department faced in
responding to a review that examined events that occurred many years
ago and actions of some persons with important roles who are no longer
available. Accordingly, we appreciate the significant effort and resources
the Department committed to facilitate our review, and its detailed
responses to our draft report. The Department’s expressed commitment
to take swift action in response to the information we brought to its
attention during our review was an early indication of the Department’s
determination to fulfill the original mission of the Task Force: ensuring
that no defendant’s right to a fair trial was compromised by the
unreliable analysis or testimony of one or more FBI Laboratory (Lab)
examiners. The Department’s concurrence in each of our
recommendations further demonstrates its commitment to that objective.
We do not agree, however, with the Department’s criticisms of our
report, as described in its response.
First, the Department highlights in its response the measures it
took at different times to stress to prosecutors the importance of making
constitutionally required disclosures to defendants. As we discuss on
pages 20-23 of the report, we found this to be true with regard to federal
prosecutors, but not consistently so with state prosecutors, even taking
into account that the Department had no authority over the actions of
state prosecutors. The Department also stated in its response that it
raised to prosecutors the importance of high-level supervisors being
involved in case-specific disclosure decisions. During our review, we
found that this was the case in 1996 when the Department was initially
addressing the Whitehurst allegations. However, we did not find the
same emphasis in the Task Force’s communications with prosecutors
after the 1997 OIG Report was issued and after the Department modified
the mission of the Task Force to focus on 13 criticized examiners.
Most essential to the success of the Task Force mission was the
disclosure, where appropriate, of the independent scientists’ reports
finding problems with the Lab analysis or testimony to defendants whose
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convictions may have been tainted by such unreliable analysis or
testimony. As explained on pages 78-79 of the report, the Department’s
planning for the communication to prosecutors about the disclosure of
the independent scientists’ reports was not sufficiently clear and
prescriptive. Consequently, some prosecutors failed to disclose
independent scientists’ reports to defendants whose convictions were
potentially tainted by problematic Lab analysis or testimony that the
prosecutor had determined to be material to the defendants’ convictions.
As we concluded, the Department failed to give adequate consideration to
the problematic scenarios that it could reasonably have anticipated
would arise and that, in fact, did arise when it came to prosecutors’
obligations to disclose the independent scientists’ reports to defendants.
Second, the Department maintains that it provided sufficient
information and guidance to enable prosecutors to satisfy their
constitutionally mandated disclosure obligations. The Department
further contends that it was appropriate for both federal and state
prosecutors alone to make the materiality and disclosure determinations.
We agree that it was appropriate for the Task Force to rely on the
prosecutors to determine whether Lab analysis or testimony was material
to the defendants’ convictions, and we did not suggest otherwise in our
report.
However, as stated on pages 78-79 of our report, we believe the
Department should have been much more direct in its communications
with both federal and state prosecutors when it was clear that the
independent scientists’ reports should be disclosed to the defendants.
Specifically, the Department should have been more explicit in cases
where the prosecutor had already determined and informed the Task
Force that the Lab analysis or testimony was material to the defendants’
conviction and the independent scientists’ report concluded that material
Lab evidence was unreliable. We do not agree, as the Department
suggests, that there was always a fluid exchange of communications
between the Task Force and the prosecutors, or that all prosecutors
would readily and immediately take note of an independent scientist’s
report that revealed deficiencies in a Lab examiner’s analysis or
testimony and disclose it as required. Indeed, we found evidence to the
contrary, as described in our report at page 43.
Moreover, although we agree that the Task Force’s failure to track
disclosures by prosecutors to defendants does not mean that prosecutors
did not disclose the independent scientists’ reports, it is indisputable
that in one case (Gates), as we highlight on pages 79-80 of our report,
the U.S. Attorney’s Office did not timely disclose the independent
scientist’s report to the defendant, whose conviction was tainted by FBI
Lab analysis and who was later exonerated after spending 27 years in
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prison. In another case (Huffington), the state prosecutor never disclosed
the independent scientist’s report to the defendant, notwithstanding
repeated requests by the defendant’s counsel for exculpatory information
concerning hair analysis conducted by the FBI. See page 43 of the report
for additional discussion of these cases.
Third, the Department states in its response that it was reasonable
for the independent scientists to conduct file reviews without retesting
physical evidence. The Department posits that its decision was
reasonable and effective in identifying deficiencies in Lab examiners’
work by virtue of having “conformed to ASCLD/LAB [American Society of
Crime Laboratory Directors/Laboratory Accreditation Board]
accreditation criteria for technical review at that time.” Despite our
request during the review for the publicly unavailable documentation
that would support this position, the Department did not produce to us
the ASCLD/LAB accreditation criteria for technical review that existed at
the time. More importantly, as we discussed on page 27 of the report,
even if the Department’s approach had been consistent with the
ASCLD/LAB accreditation criteria for technical review, we found that the
approach was not uniformly viewed by the FBI Lab as appropriate for the
nature of this case review. Also, as we explained on pages 77-78 of the
report, the approach was short-sighted.
We appreciate that the Department has concurred in each of our
recommendations and has begun to implement those recommendations.
We respectfully request that the Department update the OIG on its
progress within 90 days of the date of this report and include a timeline
for completing its work on each recommendation.
We also note that the Department describes a “comprehensive
review of hair comparison analysis” it began in the summer of 2012. As
we state in our report at page 6, footnote 12, that review is distinct from
our examination of the Task Force’s work. We credit the Department for
recognizing the need to undertake this separate review. However,
because the Department’s hair comparison analysis review is outside the
scope of our review and report, we are not in a position to evaluate the
Department’s efforts at this time.

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