By Laurie P. Cohen

June 12, 1997

Officials at the Justice Department and the Federal Bureau of Investigation are leaving it to individual prosecutors to decide whether to reopen criminal cases in the wake of an internal report blasting the work of the FBI crime lab.

The procedure, disclosed in affidavits filed in federal court in Fayetteville, N.C., earlier this week, was devised by a joint Justice Department-FBI task force charged with reviewing cases involving 13 FBI crime-lab examiners criticized in the report. The task force was formed after Justice Department Inspector General Michael Bromwich released the 500-page report in April, saying FBI lab scientists gave inaccurate testimony and produced scientifically flawed analyses in such high-profile cases as the bombings of New York's World Trade Center and the Oklahoma City federal building.

The task force's practice is already drawing criticism from defense lawyers and at least one member of Congress. "The FBI has breached the trust of the American people, but rather than come clean and admit that FBI agents have fabricated and suppressed evidence, the FBI and Justice Department have set up a system where the fox is guarding the henhouse," said Rep. Robert Wexler (D., Fla.).

"Prosecutors are the worst people to evaluate materiality of evidence," he said in an interview Wednesday. "They would be admitting that their own conviction or guilty plea was based on faulty evidence."

An FBI spokeswoman declined to comment. A Justice Department spokesman said a 1963 U.S. Supreme Court decision mandates that prosecutors review their own cases.

After the critical report was released, FBI and Justice officials said prosecutors in about 50 criminal cases were notified of potential problems. They said that while defense lawyers were informed in about half these cases, so far none of the convictions seem to have been compromised.

In his affidavit filed with the Fayetteville court, Kevin V. Di Gregory, a deputy assistant attorney general who is supervising the task force, said the group is now using a computer printout supplied by the FBI to identify cases involving the 13 examiners criticized in the inspector general's report. The task force will then determine which of these FBI examinations led to convictions or guilty pleas and then inform prosecutors, he said. The prosecutors will then be asked to determine whether the FBI lab work was "material to any such conviction" and, if so, to possibly retry the cases, he said.

Sen. Charles E. Grassley (R., Iowa) has called for the Justice Department's inspector general to conduct criminal inquiries into the work of the 13 examiners cited in the report. But in an affidavit submitted to the Fayetteville court this week, Mr. Bromwich said that "there are no pending
investigations into allegations related to ... any of the 13 FBI laboratory examiners criticized in the report."

The affidavits were filed in connection with a bid for a new trial by lawyers for Jeffrey R. MacDonald, the former Army surgeon who was convicted of murdering his wife and two daughters. The lawyers allege that courts denied an earlier effort to reopen his case on the basis of allegedly false affidavits filed by FBI Agent Michael P. Malone, one of the 13 crime lab examiners criticized in the inspector general's report.

Mr. Malone, who was the senior hair and fibers examiner in the FBI laboratory until 1994, was the subject of a page-one article in The Wall Street Journal in April. The article reviewed Mr. Malone's role in more than a dozen cases, including Dr. MacDonald's, in which he was accused of overstating the value of certain evidence and of providing inaccurate testimony. Mr. Bromwich's report made no mention of Mr. Malone's role in the MacDonald case.

Dr. MacDonald's lawyers have said that after the 1979 trial that resulted in his conviction, they learned that synthetic blond fibers were found at the crime scene. Dr. MacDonald believes these fibers came from a wig worn by one of his family's assailants. Mr. Malone examined the fibers in connection with Dr. MacDonald's 1990 bid for a new trial and said they couldn't have come from a wig, a statement that federal appeals court judges cited in denying Dr. MacDonald's bid for a new trial.

Prosecutors are opposing Dr. MacDonald's latest effort to reopen his case. Mr. Di Gregory says in his affidavit that the prosecutors handling this litigation, including the one who originally tried the case in Fayetteville in 1979 and who remains at the Justice Department, "have made a careful
examination of the materiality of Agent Malone's findings and have determined that they weren't material" to prior court rulings.

Harvey Silverglate, a lawyer for Dr. MacDonald, characterized the affidavits as "damage control." He said, "Everytime an attack has been filed, the Justice Department has assigned the [MacDonald] case to the same prosecutors who have tried it and handled the appeal. These people have a very strong interest in preventing their own conduct from being examined."