How the FBI Helped Prosecutors Railroad Criminal Defendants

FBI forensic examiners provided flawed testimony in hundreds of cases.


“And this also,” says Marlow in Conrad’s Heart of Darkness, “has been one of the dark places of the Earth.” He was referring to England.

Those words are brought to mind by a pair of events: An important speech by FBI Director James Comey, and the bureau’s admission, less than a week later, that its forensic analysts had been helping prosecutors railroad defendants.

Comeyâ€"at one time managing assistant U.S. attorney in Virginiaâ€"gave a speech at the Holocaust Museum’s 2015 National Tribute Dinner, explaining why he makes every new agent visit that museum. In it he mentions that on a recent flight he had been rereading Holocaust survivor Viktor Frank’s “Man’s Search for Meaning”(n.b.: not reading, but re-reading), and he has wondered how the Holocaust is “consistent with the concept of a loving God.”

Comey also finds two lessons in the Holocaust: mankind’s inhumanityâ€"and, more troubling, its humanity. He wants his agents “to learn about the abuse of authority on a breathtaking scale,” but also “humanity and what we are capable of. … Sick and evil leaders were joined by, and followed by, people who loved their families, took soup to a sick neighbor, went to church and gave to charity. Good people helped murder millions.”

Comey served in the Justice Department during the George W. Bush administration. In probably his most famous moment, he refused to certify the legality of a domestic eavesdropping program. White House Chief of Staff Andrew Card and White House counsel Alberto Gonzales figured they could get it certified by Attorney General John Ashcroft, who was in a hospital intensive-care unit at the time. Comey raced them to the hospital and stopped them from prevailing upon Ashcroft. Then he and others threatened to resign unless the program were changed.

That act of courage and integrity earned him much acclaim, and rightfully so. Comeyâ€"a Republican who contributed to Mitt Romney’s presidential runâ€"also has signed an amicus brief supporting gay marriage. He has been raked over the coals by Sen. Jeff Sessions for daring to suggest the bureau might need to hire people with certain skill sets who also might smoke pot now and then.

During the Bush administration, he also spoke out against waterboarding, warning that future generations would judge it “simply awful”â€"although he did not, or could not, find a legal basis to declare the practice out of bounds. (During his confirmation hearings he declared it both torture and illegal.)

Less commendably, he has criticized Apple and other cellphone makers for including encryption technology that can keep even sophisticated snoopers in law enforcement from snooping on private communications.

He also has defended federal surveillance programs, as well as the indefinite detention without charge of American citizens and the FBI’s use of national-security letters, which allow the bureau to demand all sorts of information from libraries, companies and others, with precious little justification or oversight.

No one is going to confuse Comey with Rand Paul. Then again, it’s probably unrealistic to expect any director of the FBI to epitomize the Platonic ideal of a civil libertarian.

Still, Comeyâ€"who keeps on his desk the order from J. Edgard Hoover and Robert F. Kennedy to wiretap Martin Luther King, Jr. as a reminder of how the bureau can go astrayâ€"seems more keenly attuned to the danger of concentrated power than most people in such powerful roles.

As he said in his speech about the Holocaust Museum: “I want (our agents) to … realize our capacity for rationalization and moral surrender. I want them to walk out of that great museum treasuring the constraint and oversight of divided government, the restriction of the rule of law, the binding of a free and vibrant press. I want them to understand that all of this is necessary as a check on us because of the way we are.”

That sensitivity will be needed as the FBI moves forward with an investigation into what could be one of the most damaging foul-ups in its history.

The FBI has now admitted that nearly every forensic examiner in a unit dedicated to microscopic hair analysis provided flawed testimony in hundreds of cases. And 95 percent of the time, they did so in a manner helpful to the prosecution.

This isn’t some minor technical detail without real-world consequences. In the District of Columbia, defendants and prosecutors have reviewed several convictions that relied on FBI hair analysis. In five out of seven cases, men convicted in rape or murder trials where the FBI gave flawed testimony have been exonerated by DNA or the courts. Five out of seven.

Around the nation, roughly 1,200 similar cases remain to be examined. Even if the ratio in those cases is far smaller, one unit in one department in one branch of the FBI could have sent scoresâ€"perhaps hundredsâ€"of innocent people to prison for decades. Not by accident, but by repeatedly overstating their findings to help prosecutors.

The analysts responsible for that were not among history’s greatest monsters. They were not tyrants maniacally determined to exterminate an entire race. Not even close. They were people who loved their families, took soup to a sick neighbor, went to church and gave to charity.

And yet.

Comey doesn’t have to send new agents to the Holocaust museum to learn that good people can abuse power. To learn that, they don’t even have to leave the building.

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  1. Most people think CSI is a documentary.

    1. Prosecutors will undoubtedly blame CSI because that show has made it harder for them to put forward weakish cases because jurors expect forensics to explain everything.

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  2. Am I an idiot for thinking there would be some sort of technological reason the testimony was flawed? As I was reading I just kept thinking that there was something wrong with their tools or some other explanation. Turns out they were just a bunch of fucks and I am an idiot.

    1. It’s always wise to assume stupidity rather than mendacity, until the evidence really doesn’t leave any doubt. Like here.

      1. Yeah, this definitely crosses the line to malice from negligence. Or maybe they were just too drunk on the power they had over other people’s lives to be self aware of their shortcomings.

      2. I think incentives need to be taken into account. It pushes the probability towards mendacity.

    2. The technology wasn’t good enough to support the analysts’ testimony?

    3. Am I an idiot for thinking there would be some sort of technological reason the testimony was flawed?

      If by “technological reason” you mean “their science was unsound”.

      A lot of forensics that’s being used day-to-day is based on unsound or weak science. That shouldn’t come as a surprise; the same is true for climate change, medicine, economics, psychology, and other areas where recent scientific discoveries are used as the basis of policy or law.

      The only place recently discovered scientific results can be safely used is in engineering: if the science turns out to be wrong, you know it when whatever you’re building isn’t working.

  3. “Comey doesn’t have to send new agents to the Holocaust museum to learn that good people can abuse power. To learn that, they don’t even have to leave the building.”

    Nice ending.

  4. How quickly do you think a flaw in methodology/ technology would have been discovered and corrected if results exonerated 95% of suspects?

  5. “flawed testimony” be damned. Wht the FBI provided in these cases is PERJURED testimony.

    1. Well they were perjuring in the course of their duty so you see… it’s somehow different from perjury. Law enforcement’s privilege to perjure themselves with startling regularity is like an unspoken and unwritten version of ‘qualified immunity’. Judicial deference is unofficial but you can see it easily if you give enough of a fuck about justice.

  6. FBI: Famous But Incompetent

  7. The analysts responsible for that were not among history’s greatest monsters. They were not tyrants maniacally determined to exterminate an entire race. Not even close. They were people who loved their families, took soup to a sick neighbor, went to church and gave to charity.

    And yet.

    And yet they would tare apart your family and send you to a rape cage for a decade just so they can make their lunch appointment by noon.

  8. So why would they usually ‘help’ the prosecution? It would not be a stretch for me to imagine the prosecution persuading the FBI (or vice versa) that an individual (based on psych analysis, prior convictions, the company the individual keeps or is related to, or the people the individual works for) is best kept in a cage rather than in society, regardless of guilt on a single given criminal charge.

    In these cases, it would make the prosecution and the FBI directly involved as acting jurors without due process…

    1. Probably not even as noble as that, it was just their job. And the “better” they did their job the more successful they got.

  9. and will this testimony lead to releasing people from prison?

    1. I believe 19 of them are already dead with 4 of them having been executed.

  10. They might not have been among the greatest monsters but they are definitely monsters. How many hundreds of women were raped and murdered by the real guilty parties?

  11. These are cases from 1980-2000. From the linked WaPo article: “The FBI errors alone do not mean there was not other evidence of a convict’s guilt. Defendants and federal and state prosecutors in 46 states and the District are being notified to determine whether there are grounds for appeals. Four defendants were previously exonerated.”

    What more is the current director supposed to do by way of a fix? Self-flagellation by the Reflecting Pool?

    1. That would be a good start.

  12. To: Comeycat
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  15. No those people are monsters. Putting a bow tie on a pig doesn’t make it a maitre d and bringing soup to your neighbors after railroading people into prison doesn’t make a monster a good person.

  16. Perhaps the rogue agency should be renamed to FIB…. it appears that’s all they do.

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  18. I got news for you: Rand Paul does not epitomize the Platonic ideal of a civil libertarian, either. Not by a LONG shot!

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