Probe of FBI Lab Reviews 3,000 Cases, Affects None

Three years ago, a Justice Department investigation into sloppy work at the once highly revered FBI Crime Laboratory called into question more than 3,000 criminal cases. Many of them had landed defendants on death row.

So concerned was Washington that a special Task Force on the FBI Crime Laboratory was created to find out whether any of those cases should be reopened.

But today, as the task force is wrapping up its review, not a single conviction has been overturned and no new trials have been ordered. Only a handful of defense attorneys have even been told about the potential flaws in the cases against their clients.

A key reason defendants have been stymied is that Atty. Gen. Janet Reno has assigned prosecutors to decide which of their convictions were compromised.

In the one case closest to a new trial, George Trepal on Florida’s death row is hoping to hear any day now whether his conviction for poisoning his neighbor--a verdict based at least in part on a since-discredited FBI lab examiner--may be overturned.

Ralph E. Plotner Jr., a wealthy Oklahoma oilman, sued the federal government last month to win back his good name after he served time in jail on a sexual assault conviction won partly on the basis of questionable lab analysis of paint chips.

And in Louisiana, attorneys for death row inmate Nathaniel Code have been forced to file time-consuming public record requests just to get lab notes and other background material that might clear their client of murdering four people in Shreveport.

No one is as surprised by the lack of results as former Inspector General Michael R. Bromwich. “I thought it likely that some cases would be disturbed, either cases overturned outright, new trials held or evidentiary hearings ordered,” Bromwich said in a recent interview.

Bromwich suggested that the task force should have allowed defense attorneys to participate in the case review process.

“The least effective way” to determine if any cases were compromised, Bromwich said, “is just to have the prosecutors review them.”

Justice Department officials argue that their reexamination of the lab work has been fair and exhaustive.

“This probably is among the most extensive case reviews ever done by the department,” said Lucy Thomson, the task force’s senior attorney who recently stepped down as the group neared the end of its mission. She described it as a “painstaking and incredibly thorough review of a huge number of cases.”

To be sure, in the three years since Bromwich’s investigation, no clear evidence has been developed showing that innocent people were sent to prison. In many of the cases, the crimes were heinous, and the defendants evoke little public sympathy.

Defense attorneys conceded that they never expected the problems with the crime lab to flatly exonerate their clients. But they had hoped that prosecutors would be more forthcoming in sharing evidence that could be used in new trials.

The Task Force on the FBI Crime Laboratory was set up in 1997 as Bromwich was completing his 18-month investigation into allegations raised by a whistle-blower. Bromwich’s inquiry, which focused on a small number of mostly high-profile cases, determined that 13 lab examiners and supervisors had performed shoddy work, overstated their conclusions and sometimes misrepresented their findings in trial testimony.

Ultimately, none of the 13 lab examiners was fired. Only two--Roger Martz and David Williams--were formally disciplined through letters of censure. Many of the others simply retired.

What got much less notice, however, was how law enforcement officials would go about reviewing all of the work done by the 13 lab examiners. This included about 7,500 individual pieces of evidence in about 3,000 criminal cases.

William J. Esposito, then FBI deputy director, pledged to create “procedures to ensure no one’s right to a fair trial was jeopardized by a problem in the lab.”

“We are being extremely cautious,” he added, “and erring on the side of full disclosure to prosecutors.”

The key word was “prosecutors.”

Under something called the Brady rule, which came out of a 1963 Supreme Court decision, prosecutors must give defense attorneys any evidence that would be considered exculpatory--that could exonerate a defendant.

But it is solely up to prosecutors to determine what might be exculpatory.

As the task force set to work reviewing the 7,500 pieces of evidence analyzed by the lab, the National Assn. of Criminal Defense Lawyers urged Reno to let defense attorneys in on the review process.

Reno refused, telling the group there were “safeguards in place to insure that the case reviews are conducted in a thoughtful, thorough and objective manner.”

She said that prosecutors were making decisions based on whether the evidence was “material to the conviction”--in other words, whether the lab work was a significant reason behind a guilty verdict.

But Frederic Whitehurst, the PhD scientist and former FBI lab examiner who blew the whistle on problems at the lab, believes that the Justice Department system was not fair.

“They should have notified defense attorneys,” he said. “Of course they should have.”

Some of the cases the inspector general had studied included well known matters that had not yet gone to trial, such as the Oklahoma City bombing case against Timothy J. McVeigh. In some of those cases, prosecutors had the scientific work redone by forensics experts from outside the FBI--thereby skirting the lab problems altogether.

But the task force looked only at past convictions. Half were federal cases and the other half were state and local prosecutions. They ran the gamut from bank robberies to murder.

Once the FBI identified the cases, the task force sent prosecutors a five-page memo and a one-page form. The memo outlined procedures, and asked prosecutors to review the case to determine how important the lab work was to the conviction.

In the one-page form, prosecutors were asked to fill in the name of the case and other identifiers, and to check either a YES or NO box in response to the question: “Was the FBI lab work material to the verdict?”

Fewer than 200 forms came back marked YES. Those cases were then sent out for an independent scientific review and only 14 came back with the determination that they indeed had been based on flawed lab work.

The independent reviews were forwarded to prosecutors. It was up to them to decide whether the new evidence should be shared with defense lawyers.

*

* State of Florida vs. George Trepal

Reviewing this capital murder case, the inspector general determined that lab examiner Roger Martz overstated his conclusion by testifying that thallium nitrate, a lethal poison, was added to a bottle of Coca-Cola. His testimony was a direct indication to the jury that Trepal spiked the soda and killed his neighbor.

Further, the inspector general said, Martz did not adequately document his work and his case notes were incomplete, undated and inaccurate.

Todd G. Scher, Trepal’s defense attorney, was lucky that the inspector general’s final report extensively documented Martz’ shortcomings.

Scher persuaded a state judge in Bartow, Fla., to conduct an evidentiary hearing to determine if Trepal should receive a new trial.

In February 1999, Martz took the witness stand in Florida again. This time he conceded that some of his findings were “incorrect.”

He also admitted that “in hindsight, I probably should have” conducted more tests on three different samples of thallium nitrate.

“You told the jury you tested all three,” said Judge E. Randolph Bentley.

“That is a mistake, your honor. I did not,” Martz responded.

“It wasn’t true?” asked the judge.

“That was not true,” Martz said.

A second hearing did not take place until last month. At that time, prosecutor John K. Aguero argued that the Martz lab work did not have a significant impact on the jury.

Other evidence in the case showed that Trepal did not like his neighbor and that a similar soda bottle was found in Trepal’s shed.

Aguero also denied that he violated the Brady rule.

“Mr. Martz himself wasn’t aware he made the mistakes until somebody pointed it out to him after they reviewed his notes . . . “ the prosecutor said. “So to say somehow we had an obligation under Brady to give something that was exculpatory, I don’t stipulate to that.”

Scher disagreed, saying that Martz’s testimony was “very damaging.”

“He was the only witness who connected the bottle in the shed with the Coke bottles” at the neighbor’s home, Scher said. “He essentially identified the murder weapon. He connected all the dots to give the state the opportunity to make it all a tidy little picture.”

Judge Bentley is expected to rule soon. If he grants a new trial, it would be the first of all of the cases reviewed by the task force.

“Aren’t there just two conclusions?” the judge asked during the July hearing about Martz.

“Either that he’s an incompetent chemist or that he’s falsely testifying. Or, put most charitably, grossly exaggerating his testimony,” he added.

Trepal waits for word on death row.

“Only the FBI work connects me to the crime,” he told The Times. “I am innocent. Therefore, very soon after my arrest, I knew the FBI did shoddy work. To steal a line from, I think, Queen Victoria, I was not amused. I’m still not.”

Code was sentenced to death in 1990 for slaying four people in Shreveport.

At Code’s trial, FBI lab examiner Robert Webb testified that duct tape used to bind one of the victims matched tape found on wires on Code’s home stereo system.

“All of the pieces of tape are related,” Webb testified.

Seven years later, the inspector general’s report criticized Webb for making similar duct tape and paint analyses in another case.

It said that Webb stated conclusions “more strongly than was justified by the results of his examinations and the background data.”

Webb was not disciplined by his superiors, although he was transferred to Omaha.

Gary Clements, Code’s lawyer, learned of the problems with Webb’s work in other cases only after reading the inspector general’s report.

He said that he repeatedly sought more information about Webb from the government but always was turned away. Clements said that he eventually filed a series of Freedom of Information Act requests to flush out Webb’s background. He said that prosecutors “didn’t reveal the entire story and, to put it best, they covered up exculpatory or at least neutral evidence.”

He now is asking a Louisiana judge for an evidentiary hearing on whether Webb’s testimony was shaded against Code. He admitted, however, that the problem does not mean Code should be released from prison immediately.

“It doesn’t make him walk out the door tomorrow,” Clements said. “But it certainly says we need a new trial.”

Prosecutor Catherine Estopinal insisted that “I really didn’t think it was that important” to tell the defense about Webb’s prior shortcomings.

She also disagreed that Webb’s testimony was critical to the guilty verdict, noting that Code’s palm print was found in a bathroom near one of the bodies.

‘I don’t know if the duct tape featured very large with the jurors,” she said. Looking back at the trial, she said, “the duct tape was just icing after you have the palm print.”

*

* State of Oklahoma vs. Ralph E. Plotner Jr.

A third case illustrates the lengths to which some people have gone to get back at the FBI.

An Oklahoma oilman, Plotner was convicted in 1984 of sodomy and attempting to rape a female acquaintance. He was sentenced to several years in prison, his wife divorced him and his 17-year-old son committed suicide a dozen years later.

Through it all, Plotner’s lawyers said, he has remained determined to clear his name. A state appellate court eventually reversed the rape conviction and he has filed a lawsuit claiming that the FBI--through lab examiner Webb--violated his constitutional right to a fair trial.

The lawsuit charges that Webb “falsified, fabricated and/or bolstered his findings” when he said that a small paint particle on Plotner’s watchband matched the paint on the victim’s doorway.

His lawyer contends that Webb’s findings hurt Plotner because they put him inside her apartment, noting that it was the same kind of faulty analyses for which Webb was criticized by the inspector general.

What was worse, said defense lawyer Mac Oyler, was that Webb entered the courtroom arrogantly and bent on influencing the jury.

“That jackass came in here wearing his cowboy boots and trying to look western,” Oyler said.

“He testified to a match of paint and that he could conclusively prove it came from the door and the defendant’s watch. But there were missing elements he refused to identify. It was real weird,” he said.

Barry Albert, the prosecutor in the case, remembered it differently.

“Webb was highly intelligent,” Albert said. “He was the par excellence expert witness. Very intelligent, very well-mannered, very well-schooled. I think he was a kind of overwhelming witness.”

Albert said that FBI agents traditionally wield an “overwhelming effect” on jurors because of their background and training.

“They have degrees coming out their ears,” he said. “They are truly experts.

“It ain’t some hick from the farm coming in here.”

After the inspector general’s investigation, Albert said he received a phone call from Washington, asking if he thought the case was in jeopardy because of Webb’s involvement.

Albert said no.

“I never heard from anyone else from the Justice Department again after that,” he said. “So I just closed the file.”