Associated Press

Conviction Tossed on FBI Lab Misconduct

By JOHN SOLOMON
The Associated Press

WASHINGTON (AP) - The conviction of an inmate who spent 10 years in prison has been overturned because an FBI scientific expert gave inaccurate testimony and withheld evidence - one of the first reversals arising from an investigation of the FBI lab.

The FBI agent, Michael Malone, was transferred from the lab after the problems were discovered but continued to work for the bureau until his retirement in December 1999.

The government disclosed to defense lawyers in 2001 that Malone had engaged in misconduct as a witness in the case of Anthony E. Bragdon, officials said.

Bragdon was convicted by a jury in 1992 in District of Columbia Superior Court of assault with intent to rape. By the time the government divulged Malone's problems to Bragdon's lawyers and the appeals process started, the inmate had already served 10 years in prison and had been released on parole.

The same court recently overturned his conviction, and federal prosecutors told the judge they wouldn't retry him.

``I did all that time. That is a major part of my life,'' Bragdon said in a telephone interview Tuesday. ``When I went to prison I was just 19. This was my first adult conviction. I had never been locked up. ... So they never gave me a chance to establish myself in the real world as far as getting a job.''

Bragdon's freedom is an outgrowth of a sweeping investigation in the 1990s prompted by FBI whistleblower Frederic Whitehurst's allegations that his FBI lab colleagues had performed shoddy work and shaded the truth to help prosecutors.

The internal investigation concluded in 1997 that there were problems with the work and testimonies of several FBI scientists, including Malone, and the FBI lab made changes to ensure the quality of its future work.

The Associated Press reported in March that a review had identified about 3,000 cases that could have been affected by the shoddy work but only 150 defendants had been notified of problems.

That same month, the judge overturned Bragdon's conviction.

Bragdon, 31, who is considering suing the government and is still looking for a fulltime job since his release from prison last summer, said he was angered by Malone's conduct and the fact that it took 10 years to come to light.

Malone's testimony made a difference, the court said. ``If the jurors had known that Mr. Malone testified falsely ... the outcome of the trial reasonably could have been different,'' the judge wrote.

Malone has an unlisted phone number in southern Virginia and could not be located for comment Tuesday. In a 2001 interview with the St. Petersburg Times, Malone was quoted as saying: ``Nobody's convinced anybody in a black robe that I've done anything wrong. I did the best I could. Crime labs aren't perfect. People aren't perfect.''

The FBI said as a result of the internal review of the lab in the mid-1990s, Malone was moved from his job in the hair and fiber analysis section and sent back to field work until his retirement.

FBI officials said the lab is a much different place today after changes that earned it its first scientific accreditation and after the creation of safeguards against future abuses. ``We complied fully with the inspector general investigation in 1997, implementing all of the recommendations and then some,'' spokesman Paul Bresson said Tuesday. ``Significant changes have resulted.''

Whitehurst, the former FBI whistleblower, said the delay of four years from the end of the internal investigation until Bragdon was notified was ``appalling.''

``It takes so long because everybody is covering for everybody else in the government. They wait until everyone retires and gets their pension,'' he said.

Malone had testified at the trial that carpet fibers he found on a woman's clothing linked her to Bragdon's apartment. It was the only scientific evidence corroborating the victim's allegation she had been raped, according to court records.

Jurors ultimately settled on a lesser charge of assault with intent to rape and use of a firearm in a violent crime. Bragdon was sentenced to 30 years in prison.

According to court records, prosecutors disclosed in 2001 to Bragdon's lawyers that Malone:

Testified falsely as to the absence of other possible sources of the fibers found on the victim's clothing, wrongly telling the jury that only carpet fibers exist in a trilobal form when there are in fact several other such sources.

Failed to disclose the existence of other, nonmatching fibers recovered from the victim's clothing.

Failed to performed the necessary tests to support his conclusions that the fibers found on the victim's clothing probably came from Bragdon's carpet.

The government argued Bragdon's conviction should be allowed to stand, saying prosecutors had no prior knowledge the testimony was wrong. The judge scoffed.

``The government should not be able to escape the gravity of such a situation by asserting lack of knowledge,'' wrote Judge Stephanie Duncan-Peters.

Despite the FBI's changes at the lab, the AP reported recently that one technician has since mistested more than 100 DNA samples and another of its expert witnesses has been charged with knowingly giving false testimony.

Bragdon's appeals lawyer, Michael Imbroscio, credits the government for coming forward and disclosing Malone's problems but said the case shows scientific expertise introduced in courts is still ripe for abuse.

``I think this case demonstrates that the expert analysis system is especially susceptible to human manipulation,'' he said. ``This kind of expert evidence is very powerful and without strong oversight authority it really gave an agent who thought in their heart they were doing the right thing by putting away bad people the chance to embellish their testimony.''


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