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Now and Then
By Delaney Bruce (For the Friends of Peltier Coalition)
A recent Washington
Post article ("States Stalled on Probing Lab Problems" by
Robert Tanner, Associated Press, March 24, 2007) examined the
states’ reluctance to truly address the failings of their
crime laboratories. It was suggested that states are unwilling
to act and the lack of concern is symbolic of the justice
system's overall refusal to dig into its own failings. As
regards such failings: "Prosecutors and law enforcement people
[would] rather not know the answers about why we have these
muckups."
We have these
"muckups" because forensic scientists at state- and federally
controlled laboratories often mistakenly feel they work for
prosecutors and believe their job is to provide prosecutors
with the “evidence”--even if fabricated and/or
misrepresented--to effect a conviction. In this scenario,
forensic laboratories impose the prosecutor’s beliefs on the
evidence, rather than finding the truth--in clear violation of
the precepts of good science.
In recent years,
throughout the entire United States, miscarriages of justice
have been uncovered at an alarming rate. While some estimates
place the number of innocent people wrongfully convicted at
one percent of all cases, some say it is probably higher. If
one percent is accurate, however, the number of people
currently wrongfully imprisoned is approximately 200,000. Many
of these wrongful convictions have been based on the work of
the nation’s forensic laboratories.
The reality: Forensic
laboratories play an integral role in developing cases for
prosecution and also have been shown to engage in misconduct.
Crime laboratories across the nation have come under scrutiny
for poor scientific techniques and handling of evidence,
providing misleading data to juries or skewing data to support
prosecution claims, or providing completely false testimony
and fabricated evidence.
The laboratory
operated by the Federal Bureau of Investigation (FBI) is no
exception (although the above article neglected to touch on
the FBI’s shortcomings).
Government reports in
the recent past have found serious fault with FBI lab
procedures: "FBI abandons disputed test for bullets from crime
scenes," Associated Press, 02 Sep 2005; and "DOJ faults FBI
for fingerprinting error," Associated Press, 11 Mar 2006. The
FBI laboratory has come under fire frequently enough in the
past 10 years that a clear pattern of misconduct has emerged
and this pattern of misconduct at the U.S. Department of
Justice, and that of the FBI, remains consistent.
But this behavior on
the part of the FBI lab began a long time ago.
In the Peltier case,
specifically, critical ballistics evidence has been proved to
have been fabricated. Contrary to what the government would
have you believe, the actual test performed by the FBI lab
proved Peltier’s INNOCENCE. This fact was, of course, hidden
from his attorneys and therefore from the jury at Peltier’s
1977 trial. Peltier was convicted and sentenced to two
consecutive life terms. At age 62, Peltier has now been
imprisoned for half of his life for a crime he did not commit.
Bureau tests
conclusively determined that the rifle attributed to Peltier
had not fired the cartridge casing allegedly recovered from
the trunk of Special Agent Coler's car. FBI firearms expert
Evan Hodge testified to the opposite at trial.
View the FBI's own documents. They tell the tale.
The shameful record on
the ballistics evidence in the Peltier case runs much deeper
yet.
Beginning on October
1, 1984, in connection with a Habeas Petition filed by
Peltier’s attorneys, an evidentiary hearing was held on the
ballistics evidence, specifically the FBI teletype of October
2, 1975, which, contrary to prior testimony by the FBI’s
expert, stated that the "Wichita AR-15" allegedly used by
Peltier during the shoot-out could not be linked to the
critical .223 casing found near the bodies of the FBI agents.
The teletype had been discovered well after the trial via a
Freedom of Information Act action brought on Peltier’s behalf.
The evidentiary
hearing was conducted before Judge Paul Benson (hardly an
objective jurist given the fact that he had presided over
Peltier’s trial and had a personal interest in seeing that the
conviction was upheld, and despite his reputed anti-Indian
bias and an attorney's affidavit attesting to Benson's
derogatory extrajudicial references to Peltier, specifically).
During the hearing,
Special Agent Evan Hodge surprisingly divulged that he had
testified before the grand jury on November 24 and 25, 1975,
just prior to Peltier's indictment and that he had not written
(but merely signed) the ballistics affidavit used to help
extradite Peltier to the U.S. from Canada. Not surprisingly,
the government had illegally withheld the grand jury
testimony--and proof of when the lies began--from the defense
team.
Confronted by the FBI
teletypes, Hodge invalidated his earlier trial
testimony--according to the government prosecutors, the most
crucial testimony in Peltier's trial.
While Hodge had
testified that only he and an assistant had examined the
evidence, notes in a third style of handwriting were present
on the lab report. Denying on the stand a third participant in
the evaluation of evidence, therefore again committing
perjury, Hodge later claimed he had misspoken. The court
ignored the pattern of perjury that was evident and accepted
Hodge's explanation.
The hearing was
suspended to give the government time to identify the third
party and for the defense to question that individual.
Although the information became immediately available
following the hearing, the FBI waited one month before
officially identifying the third person to handle the
ballistics evidence.
Also, at Peltier's
trial, the prosecutor had referred to the weapon alleged to
have been used in the killings of the agents: "There is only
one AR-15 in the group. There is no testimony concerning any
other AR-15 at Tent City or at the crime scene or anywhere
else in the area…"
The prosecutor
intentionally misled the jury, it was later found, by
concealing evidence of the presence of other AR-15 rifles, and
thus other potential weapons used in the killings of the
agents--none of which were attributed to Leonard Peltier.
Judge Benson
nevertheless denied Peltier's Habeas Petition. All the
government’s machinations were deemed a "mistake," only simple
human error rather than anything done with intent.
On October 15, 1985,
oral arguments regarding a Motion for a new trial were held
before the Eighth Circuit Court of Appeals. At this time,
faced with proof of its own misdeeds as regards the AR-15 and
the actual ballistics evidence, the government suddenly
changed its prosecutorial theory to one of "aiding and
abetting," even though they also admitted that they "can't
prove who shot those agents."
Given that Peltier’s
co-defendants were acquitted on grounds of self-defense and no
others have been tried, it isn’t at all clear who Peltier
allegedly aided and abetted. Also, many others were present at
the shoot-out that took place on the Pine Ridge Reservation on
June 26, 1975. None of those estimated 30 to 40 individuals
was ever charged with aiding and abetting.
Some of the nation’s
experts say the only fix to the use of junk science and
laboratory misconduct is to establish a system of
accreditation, as well as licensure and certification.
Necessarily there must be standards set, too, for the use of
forensic science, i.e., ensuring that only valid sciences are
utilized, making certain that quality assurances and quality
controls are employed, and establishing an oversight mechanism
that requires reporting, investigation, and remedial action
upon the incidence of laboratory error.
However, "because no
entity that is responsible for serving the public good can be
expected to identify its shortcomings or pinpoint the source(s)
of its own problems, independent forensic science commissions
should be established--in states and as regards the FBI
laboratory--that direct independent, external investigations
into allegations of misconduct, negligence or error committed
by employees or contractors of labs or entities that produce
forensic findings."
As regards the FBI
laboratory, "independent" and "external" are key elements in
identifying its shortcomings because the U.S. Congress, which
has oversight for FBI activities and procedures, simply has
failed to do its job.
Had an independent
oversight entity been in place to identify lab "errors,"
ensure that only valid sciences were employed, and review the
use of “expert” testimony, it is likely that the perjuries
made by Mr. Evan Hodge in Leonard Peltier’s trial would have been
recognized. It also would have been more likely that Mr.
Hodge’s misconduct and that of federal prosecutors would have
been identified much earlier. At minimum, Leonard Peltier may have
been given a new trial.
Instead, Mr. Hodge
continued his work and went on to provide testimony in many
more cases, and Leonard Peltier languishes in a federal prison.
NOTE: To better understand this critical ballistics evidence,
we recommend that you view "Incident at Oglala" (a documentary
film produced and narrated by Robert Redford). "Incident at Oglala" is out of
print. Copies still in circulation are often available for purchase from
Amazon.com, eBay, etc. You also may locate a VHS tape or DVD at your favorite
movie rental outlet. In addition, Amazon.com offers a downloadable, low-cost
digital version. Restrictions apply. Of course, you may view the documentary
on our
home page and also on our
video
page.
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