Outside editorial: FBI has responsibility to correct its mistakes

Posted: Friday, November 30, 2007

The FBI is taking corrective action in hundreds of cases where flawed FBI forensic analysis and testimony helped convict defendants. These are welcome measures, but they should have come years ago. The FBI technique in question, bullet-lead analysis, has been discredited by a 2004 National Academy of Science study - and the FBI actually stopped using the technique two years ago.

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Still, the FBI decided on corrective action when The Washington Post published a critical assessment and "60 Minutes" broadcast a similar report. The FBI and Justice Department now will look for defendants who may have been convicted because of FBI errors. Corrective steps must follow quickly to ensure justice for the innocent among an estimated 2,500 people who have been convicted. Many of them soon face deadlines for appealing cases based on new scientific evidence.

Fixing these errors is a moral and legal imperative. It is wrong to knowingly use unreliable testimony or bad forensic evidence. The law, moreover, compels prosecutors to notify the courts of any evidence that may help prove a convict not guilty. The government has a responsibility to ensure that defendants get a fair trial.

The FBI began bullet-lead analyses in 1963. The technique was used to link bullet fragments to suspects in cases where other ballistic tests were not applicable. The assumption was that bullets from the same lead batches have the same chemical composition. But that assumption was debunked by the 2004 National Academy of Sciences study that found the FBI exaggerated the technique's precision. The study found that for decades FBI testimony connecting crime-scene bullets to other bullets in a suspect's possession was "misleading under the federal rules of evidence."

The Washington Post and "60 Minutes" examined 250 bullet-lead cases. They found more than a dozen in which convictions had been reversed or were being questioned. Yet even after dropping the technique in 2005, the FBI stonewalled a Freedom of Information Act demand by the Forensic Justice Project for a list of cases affected by lead evidence.

Ironically, Justice and the FBI took quicker corrective action after FBI lab employees were accused of botching analyses and overstating findings in 1997.

Now the FBI has seen the light. It promises to identify all cases and to carefully check FBI expert testimony to ensure that what is said in court is consistent with lab reports. Justice, not conviction, should be the goal.

The cases also will be independently reviewed by the National Association of Criminal Defense Lawyers and the Innocence Network. The lawyers' groups aim to identify and help those wrongfully convicted.

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