Suspicions about FBI analysts growing By Keith L. Alexander Washington Post Staff Writer Sunday, March 14, 2010; C01 The U.S. attorney's office in the District has found more than 100 cases since the mid-1970s that need to be reviewed because of potentially falsified and inaccurate tests by FBI analysts. The report, filed in D.C. Superior Court late Friday, stems from an internal investigation by prosecutors after the exoneration in December of Donald E. Gates, who was falsely imprisoned for 28 years for the 1981 rape and slaying of a Georgetown University student. The review was launched to examine 20 cases in which Justice Department officials questioned the validity of statements made by six FBI forensic analysts who were identified in a 1997 report by the department's office of inspector general. After weeks of reviewing FBI lab reports, court transcripts, criminal history databases and police records, Patricia A. Riley, a special counsel to newly appointed U.S. Attorney Ronald C. Machen Jr., concluded that only the Gates case resulted in a wrongful conviction. During the review, Justice identified an additional 100 cases since the 1970s involving the suspect FBI experts. Riley wrote that since December, her office performed a "preliminary review" of 78 of the cases and found "no misconduct." Prosecutors have presented no findings so far on the remaining 22 cases. "We intend to fully research the remainder of the cases to determine whether additional disclosures are required or appropriate," Riley wrote. A database of the FBI analysts names has been created to allow prosecutors to collect and research cases. None of the defendants in those cases has been publicly identified, but prosecutors said they intend to contact defense attorneys. But Sandra Levick, chief of the special litigation division for the District's Public Defender Service, said the new report is "troubling" because "the government still does not know the number of people hurt by testimony from discredited FBI analysts, although it was given names beginning in 1997." One of the analysts accused of providing false testimony was Michael P. Malone, who testified in the Gates's trial that one of Gates's hairs scientifically matched a hair found on the body of Georgetown student Catherine Schilling, 21. DNA testing 28 years later proved that was not true. The latest review was ordered by Superior Court Judge Fred B. Ugast at Gates's hearing in December. At the time, Levick, Gates's attorney, requested the DNA tests that later proved Gates, who had maintained his innocence since his arrest, did not rape or murder Schilling. In the initial 20 cases Riley reviewed, she concluded that the FBI analysis did not affect the outcome of the case for various reasons. In some cases, the suspect was not prosecuted. In others, the analysis was not completed before the plea, or the evidence was not relevant to the charge. "We do not believe that the [inspector general's report] contains information that undermines or was material to the outcome of any of the cases," Riley wrote. In 2003, prosecutors alerted defense attorneys for Anthony E. Bragdon, who in 1991 was convicted of assault with intent to rape, about problems with testimony. Malone testified in Bragdon's trial. Superior Court Judge Stephanie Duncan-Peters ordered a new trial for Bragdon after ruling that there was "reasonable likelihood" that Malone's "false testimony" in Bragdon's trial affected the verdict in the case. Prosecutors later dropped the charges against Bragdon. Justice officials were notified three times, the first as early as 1997, about Malone's testimony in the Gates case, but they never contacted Gates or his attorney. According to court documents, after a second notice in 2000, prosecutors within the U.S. attorney's office reviewed the case in 2002 and said the Malone hair analysis was "material" to Gate's conviction. Yet, nothing more was done. Then, in 2004, Justice officials sent another letter to District prosecutors encouraging them to review the Gates case again. Ben Friedman, a spokesman for the U.S. attorney's office, said that although his office was alerted to the analyst's testimonies three times, prosecutors do not think they had an obligation to contact Gates's attorney until 2004. "The DOJ directed us to do something in 2004, and nothing was done," Friedman said. "This is a tragic case. As a prosecutor it kills you to see this happen." The Gates case is under review by the Justice Department's Office of Professional Responsibility. Laura Sweeney, a spokeswoman for the department, declined to comment on the review.

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