“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
By Jeff Deskovic
Bullet Lead Analysis is a junk science that has been used to convict thousands of people. It has been defined by expert William Tobin as “a nuclear technology that measures the composition of bullet lead by quantifying the percentages of other metals associated with lead bullets, chiefly antimony, arsenic and copper.” It has been used in thousands of criminal investigations, and offered as “scientific evidence” in many hundreds, probably thousands, of cases over the past few decades. The National Research Council of the National Research Council of the National Academies casts grave doubt on the extrapolation of trace metal analyses for the purpose of stating, under oath, the likelihood that a fragment of a bullet found at a crime scene “matched” other bullets found in the possession of a criminal defendant. Comparative Bullet Lead Analysis is now completely discredited as probative evidence of guilt in American courtrooms.
Fraud Exposure and Institutionalized Silence and Complicity
An investigative report by CBS News’ 60 Minutes and the Washington Post revealed that thousands of convictions nationwide may have been secured based on false FBI testimony about the ability to “match” bullet used in one crime to a small number of other bullet manufactured at the same time. As a result of the investigation report, the FBI admitted that its agents may have provided misleading testimony in thousands of cases. The FBI knew, as far back as at least 1991, the Bullet Lead Analysis was junk science. Yet they kept using it, and allowing their agents to testify as expert witnesses, in evidence used to convict defendants.
Reporter John Solomon, in an article in The Washington Post, reported the following chronology: In the 1980’s the FBI began routinely testing in cases using Bullet Lead Analysis to link bullet fragments to defendants. Over the next quarter century, the Bureau performed bullet lead analysis in more than 2500 cases; In 1991 the FBI conduction its first substantial study on the reliability of Bullet Lead Analysis, which raised, which raised two red flags: The study found that the lead composition of bullet in the same box didn’t always match. Furthermore, it found that two bullets made at two different times and from different batches of lead unexpectedly match. Nonetheless, FBI witness’s continued to suggest to juries that bullets could be matched to suspect’s boxes.
In 1995-96 the FBI switches its bullet lead analysis from Neutron Activation Analysis to inductively coupled Plasma Mass Spectrometry to increase the precision of its measurements. It also doubled the standard deviation of error for concluding when bullets match from one standard deviation to two standard deviations, thus increasing the chances of matching them.
In September of 2001 retired FBI Chief Metallurgist, William Tobin, and Livemore Labs scientist William Randich completed a study challenging the scientific underpinnings of the FBI’s Bullet Lead Analysis testimonies in courts across the nation. The study began appearing in court cases launched by defendants like Michael Behn in New Jersey who is challenging convictions based upon Bullet Lead Analysis.
In the Spring of 2002 FBI bullet lead examiner Kathleen Lundy admitted she gave false testimony in a Kentucky murder case. She was eventually prosecuted and conviction of the defendant involved was reversed.
In the Fall of 2002, confronted with Tobin’s study and increasing legal challenges, the FBI lab asked the Nationals Academy of Science’s National Research Council to create a panel of experts to study the scientific underpinnings of the Bureau’s Lead Bullet Analysis.
In 2004, the National Academy of Science issued its report stating that while the lead analysis measurements the FBI had conducted in its lab were accurate and reliable, bureau examiners had been overstating the significance of those findings to jurors. It specifically cited problematic testimonies by several FBI examiners and urged that the FBI stop telling jurors it can match bullets to suspects’ boxes. It also recommended several changes to the statistical analysis the FBI uses to link bullets to defendants.
In March of 2005, the New Jersey Court of Appeals ordered a new trial for Michael Behn, one of the first cases to use Tobin’s challenges to the lead bullet science as a basis for reversing a conviction. In the Spring of 2005 FBI lab personnel discussed by email the problems with continuing to practice Bullet Lead Analysis in light of the National Academy of Science’s report. The lab’s chemistry chief also told the lab di- rector that if the FBI used the new statistical method recommended by NAS, numerous prior matches of bullets would actually be reversed.
In September of 2005 the FBI lab announced it was ending Bullet Lead Analysis, citing the concerns raised by the National Academy of Sciences. It sent a letter to law enforcement nationwide and the Defense Lawyer’s Lobby stating that, despite those concerns, the Bureau’s lab “still firmly supports the scientific foundation of Bullet Lead Analysis.
In Nov. of 2006, the FBI introduced an affidavit seeking to uphold the murder conviction of James Kulbocki based on Bullet Lead Analysis. The affidavit uses the figure that one bullet likely matches about 1.3 million others, a statistic that predates the National Academy of Sciences study and was far more favorable to prosecutors than the figures the Academy urged the FBI to use.
As a result of the exposure, the FBI agreed to take concrete steps, in consultation with independent experts, to identify potential wrongful convictions resulting from Bullet Lead Analysis and to prevent misleading testimony in future cases. The Innocence Network and the National Association of Criminal Defense Lawyers released a statement declaring that, “We are forming a Joint Comparative Bullet Lead Analysis Task Force to ensure that convictions resulting from discredited FBI bullet analysis are properly reviewed.” A statement released by The Innocence Network declared, “The Joint CBLA Task Force formed by the Innocence Network and the NACDL will assist the FBI in reviewing closed cases and serve as a resource for defense counsel and for defendants who may have been wrongfully convicted based on erroneous or misleading FBI testimony.”
While the Task Force will work with the FBI, the Innocence Network and NACDL said the FBI should notify defendants and defense attorneys (beyond only notifying prosecutors) in individual cases where CBLA testimony contributed to convictions.
The Task Force will vet and respond to cases as the FBI releases them and will ensure that attorneys handling the cases have access to legal and forensic expertise to weigh the impact of false or misleading CBLA testimony. The Joint CBLA Task Forces will also monitor the FBI’s compliance with its own newly announced commitments to review old cases and prevent misleading testimony in future cases.
“The Task Force will be comprised of legal and scientific experts who will review trial transcripts, scientific reports and related materials in cases in order to independently weigh the likely impact of the dis- credited testimony on the jury’s verdict,” said NACDL President Carmen Hernandez. “Our team of experts will work with staff from the Department of Justice to help make sure no case is neglected.”
The CBLA Task Force will also assist defense and post-conviction counsel in assessing the impact of the discredited testimony on the trial and verdict.
“Our organizations bring a particular expertise in deconstructing post-conviction cases to determine whether unreliable forensic evidence merits vacating convictions or seeking other remedies. We know that FBI Bullet Lead Analysis played a role in thousands of convictions nationwide, and once the FBI releases full details of these cases, we will have a sense of how many cases should be reopened,” said Theresa Newman, Co-President of the Innocence Network, an association of nearly 40 organizations that handle post-conviction innocence cases. “The FBI’s plan to deal with this serious and deeply troubling problem is good, but long overdue,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This should have happened in 2004, when the scientific community made it clear that Bullet Lead Analysis is not reliable. A serious review of old cases is critical because innocent people – such as Lee Wayne Hunt in North Carolina – may well have been convicted based on discredited unreliable FBI analysis.””
In 1986, Hunt was convicted of murdering two people in North Carolina, and sentenced to two life sentences. The evidences against Hunt consisted of a fellow jail inmate who said he heard Hunt describe details of the killings, and from a man who said he drove Hunt and two others to the victim’s home. The jailhouse informant had his sentence reduced in return for his testimony, a second informant, Gene Williford, who prosecutors didn’t charge in the Matthews’ murders, gave him immunity in a slew of unrelated drug and weapons charges, along with the Bullet Lead Analysis testimony.
An FBI agent had testified that bullets taken from the victims’ bodies “most likely” came from a box of bullets tied to the defendants. This testimony had the effect of seeming to corroborate the snitch’s testimony. Hunt offered alibi evidence and testimony by himself and several of his friends that one of the other men, Jerry Cashwell, who was convicted in a separate trial, admitted committing the murders alone.
Hunt was nonetheless convicted. After Cashwell’s suicide in prison, his lawyer, Staples Hughes, came forward and revealed that early on in the proceedings in this case, Cashwell had admitted to his lawyers that he had committed the murders alone, and that he had provided details. The lawyer had not come forward because of the attorney/client privilege.
However, now that Cashwell had died and he wanted to see the wrongful incarceration of Hunt ended, the attorney came forward. At a hearing on January 8, 2007, in Cumberland County Superior Court, the Prosecution in Hunt’s case stipulated to the unreliability of the Prosecution’s “expert” witness.
Earlier this year, Hunt’s new lawyers unsuccessfully attempted to present all of this evidence of innocence to North Carolina Superior Court Judge Jack Thompson. When Hughes got on the stand to offer his testimony of Hunt’s innocence, Judge Thompson’s reaction first to warn Hughes that he would report Hughes to the North Carolina State Bare for violating Cashwell’s attorney/client privilege. Hunt also had subpoenaed West to the hearing, but when the Prosecution stated that they might charge West with perjury if he testified about Hunt’s innocence, West also refused to testify. Judge Thompson later issued an order dismissing the FBI’s discredited lead bullet analysis evidence as irrelevant, and held that he could not even consider Hughes’ testimony about Cashwell’s admissions. The North Carolina Court of Appeals refused to even review Judge Thompson’s decision. It is unclear at this point whether Hunt will ever be granted another opportunity to have a trial at which the junk science could be debunked.
“Jeffrey Deskovic, JD, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 7 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction”, and there episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University.
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