A D.C. Superior Court judge recently released Donald E. Gates, who spent 28 years in prison for a murder and rape he did not commit. The court also expunged Mr. Gates’ conviction after it was determined that the government’s expert, FBI crime lab examiner Michael P. Malone, lied about the hair and fibers evidence that Malone claimed linked Gates to the rape and murder.
Mr. Gates’ case was covered by the Washington Post, and the Post has run 2 editorials (12/18/2009 and 12/27/2009) calling for further investigation as to how the government could hold a man wrongfully convicted after it was reported that Malone’s findings in other cases were questioned as a result of the DOJ’s review of the FBI Lab scandal in the 1990’s.
Not reported in the Washington Post or other media coverage of the Gates case, is the role of Dr. Frederic Whitehurst in uncovering the misconduct of Malone. In the mid-1990s, Dr. Whitehurst blew the whistle on Malone for lying under oath to help remove Judge Alcee Hastings from the federal bench. In 1997, the U.S. Department of Justice Inspector General confirmed Dr. Whitehurst’s allegations that Malone lied under oath and the IG raised questions about the work of a dozen other FBI lab examiners who Whitehurst also reported to the IG for misconduct.
However, the Justice Department failed to take prompt or effective corrective action in the aftermath of the Whitehurst investigation on the FBI Lab scandal. In fact, under records released to the National Whistleblowers Center, the Forensic Justice Project and Dr. Whitehurst under the Freedom of Information Act (FOIA), it is evident that the DOJ Criminal Division reviewed the Whitehurst allegations to minimize disclosure of allegations misconduct to the courts and criminal defendants. Instead, the DOJ relied on the state, local and federal prosecutors as well as the FBI Lab to make key decisions about whether misconduct occurred in thousands of criminal prosecutions where the FBI Lab’s evidence and testimony was questioned. In most cases, the defendants who were convicted and the courts where misconduct by the FBI may have occurred were never notified.
In 2002, the Justice Department closed its review of 6,000 cases impacted by Whitehurst’s allegations without issuing a final report, without notifying the defendants whose cases were reviewed and without reporting on the work that DOJ had conducted in secret.
In Mr. Gates’ case the DOJ apparently was aware as early as the year 2000 that Gates’ case was impacted by Whitehurst’s allegations about Malone, but according to the Washington Post the government never notified Mr. Gates or his attorney or the court that there was any problem with the evidence used to convict Mr. Gates.
However, this problem is not limited to cases in Washington, D.C. Malone and the other FBI lab examiners who were subject of the IG review in the 1990’s testified in nearly 6,000 cases nationwide.
A nationwide effort must be undertaken to disclose all of the cases to the public and the defendants and to permit the criminal justice system, not prosecutors or the FBI, to decide whether there are any more wrongfully convicted (or even wrongfully executed) individuals who have been victimized by the FBI Lab scandal.