The Federal Bureau of Investigation faces scrutiny as hundreds of convictions over the course of years now come under question. Undoubtedly, many of the convicted are, in fact, guilty, but the American concept of justice demands such reconsideration.
An investigation by the Washington Post and CBS’ 60 Minutes has identified at least 250 convictions nationwide in which a technique called bullet-lead analysis was introduced as evidence against the accused. John Solomon explains for the Post:
The science, known as comparative bullet-lead analysis, was first used after President John F. Kennedy’s assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.
In 2004, however, the nation’s most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI’s testimony about the science “unreliable and potentially misleading.” Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect’s gun or cartridge box were so overstated that such testimony should be considered “misleading under federal rules of evidence.”
A year later, the bureau abandoned the analysis.
But the FBI lab has never gone back to determine how many times its scientists misled jurors. Internal memos show that the bureau’s managers were aware by 2004 that testimony had been overstated in a large number of trials. In a smaller number of cases, the experts had made false matches based on a faulty statistical analysis of the elements contained in different lead samples, documents show.
A retired FBI lab director named Dwight E. Adams, who ended the Bureau’s use of the technique, said that the government is obliged to release all case files in which Bureau experts testified about bullet-lead analysis. The FBI, as part of its review, will do exactly that.
The ripple effect, of course, is massive, and may be disastrous. Lee Wayne Hunt, an admitted marijuana dealer, has spent over two decades in prison for a double murder he claims he never committed. And while the FBI sent form letters to 300 police agencies and various local groups representing lawyers, Hunt—who has thus far been denied a new trial despite the bullet-lead controversy and the revelation by attorney Staples Hughes that co-defendant Jerry Cashwell confessed to sole responsibility before committing suicide in 2003—told Post and 60 Minutes investigators that the FBI never informed him of the problem, and that his attorney only found out about the flawed science while attending a conference. The bullet-lead analysis was the only forensic evidence introduced against Hunt, and Hughes has been referred to the state bar; his admission of what he knew may well have violated attorney-client privilege.
Even the harshest critics concede that the FBI correctly measured the chemical elements of lead bullets. But the science academy found that the lab used faulty statistical calculations to declare that bullets matched even when the measurements differed slightly. FBI witnesses also overstated the significance of the matches.
The FBI’s umbrella letters, however, glossed over those problems and did little to alert prosecutors or defense lawyers that erroneous testimony could have helped convict defendants, one of the recipients said.
“Frankly, the letters that they sent them, you know, were minimizing the significance of the error in the first place,” said defense lawyer Barry Scheck, whose nonprofit Innocence Project has helped free more than 200 wrongly convicted people. The letters said that “our science wasn’t really inaccurate. Our interpretation was wrong. But the interpretation is everything.”
Meanwhile, the Maryland Court of Appeals reversed the murder conviction of Gemar Clemons, ordering a new trial after concluding that the FBI analysis was faulty and therefore not admissible. New Jersey courts have reversed convictions, and in one case—that of Michael Behn—convicted the defendant on the merit of other evidence. The 1994 conviction of Shane Ragland was overturned after an FBI examiner pleaded guilty to giving false testimony. Depending on statistical methods, there could be many more convictions thrown out:
In March 2005, the chief of the FBI chemistry unit that oversaw the analysis wrote in an e-mail that he applied one of the new statistical methods recommended by the National Academy of Sciences to 436 cases dating to 1996 and found that at least seven would “have a different result today.” Marc A. LeBeau estimated that at least 1.4 percent of prior matches would change.
If the FBI employed other statistical methods the number of non-matches would be “a lot more,” LeBeau wrote. In fact, when the bureau tested one method recommended by the academy on a sample of 100 bullets, the results changed in the “large majority of the cases,” he wrote.
Despite the controversy, the FBI has since provided affidavits in at least two cases in which bullet-lead analysis was used in hopes of attaining a conviction. The affidavit cites the NAS report, but downplays the importance of the FBI’s statistical methods:
That omission concerns the chairman of the academy panel.
The affidavit “does not discuss the statistical bullet-matching technique, which is key and probably the most significant scientific flaw found by the committee,” said Kenneth MacFadden, a private chemistry expert.
MacFadden and Spiegelman said they also believed the affidavit was misleading, because it estimates that the maximum number of .22-caliber bullets in a batch of lead was 1.3 million. The academy said the number could be as high as 35 million.
It is too early to measure the depth of the federal government’s embarrassment. It is too early to accuse any scope and scale of impropriety. And for some convicts it may be too late to do anything about what may or may not have happened, and may or may not be true. It is easy enough for some—myself included—to assert that we would rather let a thousand guilty men go free than hang an innocent, but such idealism seems nearly puerile considering the implications. And it would be easy enough to sink deeply into cynicism, except that it is too early to start blaming anyone. Given the potential scale of the bullet-lead controversy, it would be best to simply encourage our government to do the right thing as best it can, and wait to see what honest numbers say.
Honest numbers. Now there is a tough decision between puerile idealism and useless cynicism. Let us just hope for the best.
Hunt has taught himself how to read and write. “I’m not as bitter as I used to be about being put in this prison,” he said, recounting how he missed his mother’s funeral and his son’s childhood.
“I never told nobody that I was an angel, that I didn’t do this and I didn’t do that,” he said. “What I’ve said from the word get-go is that I ain’t never killed nobody.”
B.D.'s Last Refuge 