Washington, DC (September 29, 1997) -- "Our review of documents thus far generated by the Department of Justice Inspector General's 18-month investigation of the FBI Lab reveals systemic problems scarcely addressed by the April 15 report -- bad science, sloppy record-keeping and professional misconduct," Gerald B. Lefcourt, President of the National Association of Criminal Defense Lawyers said today as he prepared to testify before a Senate hearing on problems in the FBI's Crime Laboratory. "So far we've only seen the tip of the iceberg. We are greatly concerned that for some American citizens convicted by 'bad science,' the time for filing appeals and writs of habeas corpus is fast running out," Lefcourt said.
Lefcourt was invited to testify regarding ongoing problems with the FBI Lab by the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, chaired by Sen. Charles Grassley (R-IA). <- Click here for Lefcourt's testimony. ->
In April, the Office of the Inspector General issued its 517-page report, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases, following an 18-month investigation which generated some 60,000 pages of documents. The report methodically reviews allegations against particular examiners and offers a dozen recommendations to prevent future abuses within the FBI laboratory. The report, however, fails to adequately spell out how misconduct uncovered in the course of the investigation will be addressed, and does not consider the appropriate action the government should take to right past wrongs to citizens unjustly accused.
NACDL sued the Justice Department under the Freedom of Information Act in federal court February 25, to force public release of both the original draft report and the voluminous working papers leading to it, some of which are just now slowly being released by the Inspector General's Office. Altogether, NACDL has received 4,326 of the estimated 60,000 pages which will ultimately be made public.
"Basically, we're looking for the smoking guns, but the process is more like looking for needles in a haystack," said NACDL attorney Daniel Alcorn, lead counsel in the Association's FOIA suit. "The Inspector General's investigation was a lot more thorough than the April 15 report would indicate.
"Also, in my experience in dealing with the Justice Department in other FOIA cases, the good stuff is always in the 'last box.' That raises concerns with the criminal defense bar that some defendants who would clearly deserve a new trial may not be able to get one. Federal law imposes a one-year time period in which a defendant can file a petition of habeas corpus, and the disclosure process is moving at a snail's pace."
A glaring example of the superficial treatment of some misconduct reviewed in the OIG Report deals with the bombing of William Wirt Middle School. An FBI Lab examiner, Special Agent Steven Burmeister, told investigators from the IG's Office that his supervisor, Tom Thurman, was unqualified to interpret Burmeister's dictated report and drew unfounded conclusions. That serious allegation, however, was barely addressed in the Inspector General's final report. The status of the Wirt Middle School case is unknown.
"There's a case . . . still out there where Tom Thurman, who is the current unit chief, put out a report," Burmeister told OIG Special Agent Barry Elden in a transcribed interview obtained by NACDL. "[H]e took information from my dictation and drew up a conclusion, a summary conclusion. The summary conclusion is wrong.
"Even after going back and telling him that it's wrong, nothing was ever changed. And now that case is floating out there in the world of cases."
Agent Elden asked Burmeister, "Is that the bombing of the William Wirt Middle School?" Burmeister responds, "Yeah."
Later, Burmeister says, "When I go to testify in a court of law and the attorney who happens to ask me questions about that summary says, 'Is that a fair and accurate statement?' I'd have to say 'no.' There would be a lot of people starting to shake, especially on the prosecution side."
"So you're saying that somebody knowingly has sent something out which they know to be untrue," Elden asked.
"Yes," Burmeister replied.
Attorneys for NACDL and the Justice Department will be back in court Wednesday (October 1, 1997) before U.S. District Judge Gladys Kessler, to report on the status of the needlessly tedious document release process.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.