JUNK SCIENCE, WRONGFUL CONVICTIONS AND TERRORISM

By John Kelly

Gemar Clemons is a free man thanks to former FBI chemist Fred Whitehurst. On April 19, 2006, the Maryland Court of Appeals overturned his conviction solely on the basis that comparative bullet lead analysis (CBLA) is an invalid technique. Clemons is the first one ever to be so exonerated. No one has done more to discredit CBLA than Whitehurst and his colleague Bill Tobin who performed the scientific work demonstrating the invalidity of CBLA. Now he and Tobin have forced the FBI to stop using CBLA, and no one will ever again be convicted on the basis of CBLA, CSI Miami, not withstanding.

This is an unprecedented achievement. It means that thousands of cases will have to be re-opened and the potential for exonerations dwarfs the numbers of those released by DNA analysis. Not resting on his laurels, Whitehurst is now identifying and notifying prisoners and their attorneys around the U.S. He is also attempting to bring criminal charges against the FBI which never even attempted to validate CBLA during its 30 years of use. FBI lab agent Charles Peters, who has done tens of thousands of comparative bullet lead analyses, testified at Clemons' trial that he had validated CBLA, but this was a lie. Whitehurst is also taking this action because the FBI cannot be trusted. Some six months after the FBI publicly announced it would no longer use CBLA evidence in court, it did exactly that in a murder trial in London.

This comes at a time when Science magazine has confirmed Whitehurst's charges against the FBI: there is no science to forensic science. The king has no clothes. Yet operating under self-anointed authority and deceit, the FBI continues to wrongfully convict. In a poll of wrongful convictions, 14 of which resulted in death sentences, Science found that 90% were due to a combination of forensic science testing errors and false/misleading testimony by forensic scientists.

Like Whitehurst before, Science found supreme arrogance at the FBI which acts as if it is "perfect" and practices "an error-free science" where errors of method are "impossible." "For example," wrote Science, "an FBI document section chief asserted that all certified document examiners in the United States would agree with his conclusions in every case." In fact, the FBI used CBLA evidence in Gemar Clemons' trial even though it knew it was an invalid technique Science added that the FBI continues to "seek to preserve the illusion of perfection [even] after the disclosure of [errors]." Not only does this arrogance lead to wrongful convictions, but it also undermines the war on terrorism. "Such hubris," reported Science, "was on display in spring 2004 when the FBI declared that a fingerprint recovered from a suspicious plastic bag near the scene of a terrorist bombing in Madrid provided a "100 percent match" to an Oregon attorney.

" On March 11, 2004, terrorists detonated bombs on several commuter trains in Madrid, Spain, killing about 200 people and injuring more than 1,400 others The Spanish National Police (SNP) recovered a fingerprint from a bag of detonators connected with the attacks and sent copies to the FBI for identification. On March 19, the FBI's Latent Print Unit (LPU) identified Brandon Mayfield, an attorney in Portland Oregon as the source of the fingerprint known as LFP 17. This conclusion was verified by a second LPU examiner as well as a Unit Chief in the LPU. The FBI immediately opened an intensive investigation of Mayfield, who is a Muslim, including 24-hour surveillance.

On April 13, the FBI learned that the SNP's examination of Mayfield's fingerprints yielded a negative result, i.e. did not match the fingerprint recovered from the bag of detonators. On April 21, the FBI despatched its examiner to Madrid who insisted there was a "100 percent match." The SNP agreed to re-examine Mayfield's fingerprints and LFP 17. On the basis of the match, the FBI arrested Mayfield on May 6 and seized alleged evidence from his home and office. In court, Mayfield denied the fingerprint was his and said he had no idea how it got on the detonator bag. He was immediately incarcerated in the Multnomah County Detention Center in Portland.

On May 19, the SNP informed the FBI that it had positively identified LFP 17 as the fingerprint of an Algerian national named Ouhnane Daoud. Still, an FBI counterterrorism supervisor e-mailed the Portland prosecutors to disregard this finding. "I spoke with the lab this morning," wrote the supervisor, "and they are absolutely confident that they have a match on the print -- No doubt about it!!!" On May 20, the court released Mayfield to home detention. The FBI requested court permission to continue monitoring Mayfield's communications. This was denied, but the FBI continued to monitor and surveill Mayfield's attorney, Thomas Nelson, and subject him to warrantless wiretapping. On May 24, the FBI withdrew its identification of Mayfield, and the government dismissed the material witness proceeding.

The Inspector General (IG) of the Justice Department found that the FBI made some ten errors, and that the second examiner's conclusion was biased by the first examiner's match. "However," found the IG, " we concluded that the examiners committed errors in the examination procedure, and that the misidentification could have been prevented through a more rigorous application of several principles of latent fingerprint identification.

" The IG, however, failed to point out that while the FBI was insisting on its match even to the point of muscling the SNP to agree with it, the real culprit was roaming free and undetected just like the Unabomber did for eight years while the FBI fumbled his investigation. This attitude is the antithesis of scientific investigation and counterproductive to effective police and anti-terror work. This "hubris," as Science magazine called it, has led to bullying and unspeakable retaliation against those who simply question the FBI.

Fred Whitehurst, almost single-handedly has brought the legal and forensic community to the cusp of momentous changes and awareness. According to Science magazine: "Converging legal and scientific forces are pushing the traditional forensic identification sciences toward fundamental change … Scientists have begun to question the core assumptions of numerous forensic sciences. Federal funding has materialized to support research that examines long-asserted but unproven claims. Courts have started taking challenges to asserted forensic science expertise seriously. A dispassionate scientist or judge reviewing the current state of the traditional forensic sciences would likely regard their claims as plausible, underresearched, and oversold.

" Still, Whitehurst isn't waiting for the FBI or the legal and forensic communities to catch up and is in the process of researching and proving the invalidity of ballistics and tool mark analysis, hair and fiber analysis and paint analysis among others. Ironically, when Whitehurst was internally exiled by the FBI, they transferred him to the paint analysis section thinking it would shut him up. He quickly mastered the subject and discovered that it was an invalid technique used to wrongfully convict and produced a study of his findings. Whitehurst is also constantly speaking around the country as well as working as a defense expert and attorney for potential FBI victims. While he was at the FBI, Whitehurst attended Georgetown University Law School. At the time, he was so besieged by the FBI to the effect that he was wrong and out of line with the law that he thought maybe they were right. Maybe he was ignorant of what was and wasn't lawful. So he went to law school to learn and understand law. Needless to say, law school confirmed his belief that the FBI was a criminal organization.

In short, Whitehurst is spearheading a revolution in forensics and criminal investigations that bears little resemblance to CSI, CSI Miami, or CSI New York . In fact, it casts a poor light on FBI agents and CSI practitioners while showing a way out of the morass of post-9/11 violence and terror. At the same time, the FBI acts as if it embodies the infallible super-sleuths and counter-terrorists of CSI while ignoring or suppressing anyone who would claim otherwise. This attitude and practice have led to countless wrongful convictions as well as misidentifications of bombers that allows the actual bombers to continue to terrorize.

It is fortunate for the FBI and the rest of us, that it did not snuff out Whitehurst. It beat him to a pulp, and sicced 100 PR agents down his throat, but he continues to circle the FBI like the Duracell bunny, offering insightful critiques and a way for the FBI to do the right thing. He also serves as a living example to the thousands of rank-and-file FBI employees that you can speak truth to power and survive and continue. If only a few of these rank-and-filers take on the FBI, it could save the rest of us. Failing this, the American people have to step in, and Whitehurst has provided justification for drastic demands and changes. An FBI is needed now more than ever. But the current FBI needs to be reconstituted ASAP.

Ironically, Whitehurst is providing an invitation to power. Not the brutal power of J Edgar Hoover but an invitation to the FBI to know itself which is necessary so it can be true to itself. In being true to itself, necessary so it can be true to itself. In being true to itself, it will attain the only real power: the power to do good. To do good for itself as well as the American people.

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