Tainting Evidence: Behind the Scandals at the FBI Crime Lab. - book reviews

Washington Monthly, June, 1998 by Mark C. Hansen

By John Kelly and Philip Wearne Simon and Schuster, $25

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert qualified by "knowledge, skill, experience, training, or education" can give an opinion. So say our rules of evidence. This opens the courtroom door to opinions from experts about, say, whether a defendant left his DNA on the bloody pavement, his John Hancock on a ransom note, or his senses before he committed the crime.

But what happens when experts aren't what they claim to be? That's the question posed in this book. The subject is the "forensic science" experts of the FBI crime labs: agents who specialize in things like trace analysis, ballistics, bomb reconstruction, even psychological profiling. The FBI has long enjoyed a reputation for solving crimes too slick for the local constabulary. But what did the feds know that the locals didn't? Not much, say the authors, who, as their title suggests, posit that the FBI was solving crimes by "tainting evidence" in its fabled crime lab. The result was phony evidence cooked up by pretend experts who were really just G-men in lab coats.

According to the authors, in 1996 the FBI lab staff of 694 handled 136,629 pieces of evidence and performed nearly 700,000 examinations. While screw-ups are not unique to the FBI (one county coroner, for example, lost a head), they were apparently endemic The problems ranged from the occasional "rogue" agent who made up credentials and tests, such as Special Agent Thomas Curran, who in 1974 lied about his degrees and the tests he had done, to more prosaic flaws in lab procedure. Without accepted standards and protocols to guide them, the bureau's men and women of science didn't document their work, didn't identify who did what, didn't do confirmatory testing, didn't sign, date, seal, and the like.

All of which was compounded by the pressure to make cases in court. Agents were not scrupulous in their science because, say the authors, they wanted to make the conclusions come out the right way and were loath to create paperwork that might undermine those conclusions. When they got to the witness stand, they often fudged the limits of their work, in effect painted over the gray with strong coats of rhetorical black. "Could have been" was transformed to "was," possibility became probability. The bureau hid this sorcery from the prying eyes of outside scientists.

Kelly and Wearne's account of these mishaps is both good and original. But as Samuel Johnson once observed, the part that is good is not original, and the part that is original is not good. The mind-numbing recitation of instances in which lab chemists didn't keep good bench notes, bickered over standards and protocols, or gave unconvincing trial testimony because they were trying too hard to help the home team, is by this point old news. The sloppy practices and procedures have been under the hot lights before Congress and a detailed investigation by the Justice Department's Inspector General (mined to good effect by the authors). The FBI has, for the most part, confessed and vowed to straighten out the lab. That story is told here again, and convincingly.

But what's new? For that we have a more sinister tale about supposed efforts to frame innocent men by unprincipled zealots masquerading as forensic scientists. That FBI agents are not disinterested scientists, but rather have a pro-prosecution bent, will not surprise any in the world of law enforcement. It is the authors' claim that the bureau's lab was stocked with Inspector Javerts, bound at any cost to get their man, rather than humbling Clouseaus, that goes beyond the routine lab flogging that has emerged to date.

What's the proof? We begin with the book's protagonist and number one source, FBI chemist Frederic Whitehurst (to whom the book is dedicated). Whitehurst is portrayed, not surprisingly, as a star agent of courage and conscience, a "brawny six-foot-two-inch" Vietnam vet, "[p]edantic, methodical, straight as an arrow." His complaints about unsound practices in the FBI lab seem well-founded, and his critiques of the work of his colleagues may be correct. But even in the one-sided telling, there are hints that Whitehurst is, well, something of a nut. When others failed his standards -- even where he personally had confirmed the lab's conclusions -- he decided to sabotage the prosecution by going secretly to work for the defense. As the authors note, "It was a strange case for which to break all the rules and risk his career."

Whitehurst's efforts at martyrdom might make sense if, say, he was preventing the execution of innocent people on the strength of fake evidence. But in substantial part he appears to have been expressing a fastidious revulsion at the Pigpen practices of his fellow chemists. When the authors hold their magnifying glass to the FBI's scientific work, they find no case in which the lab concocted false evidence and thereby secured the conviction of an innocent person.