Photo: Willie Jerome Manning had been sentenced to death in Mississippi for the 1992 murder of two studentsStory 1 – Scandal for American Justice: FBI Could be at Fault in 27 Death Row Cases
By Spencer S Hsu, Independent – July 18, 2013http://tinyurl.com/pocw7tf
Unprecedented federal review rules that the FBI may have exaggerated forensics in case of Willie Jerome Manning – a decision that puts other convictions in doubt
An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony.
At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.
Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. However, on the witness stand, several agents went beyond the science and testified that their hair analysis was a near-certain match.
It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardise valid convictions. Those questions will be explored as the review continues.
But it has already led to an 11th-hour stay of execution in Mississippi in May, after the Justice Department acknowledged flaws in forensic testimony by the FBI that helped convict Willie Jerome Manning of the 1992 murders of two university students.
The 44-year-old had been hours away from receiving a lethal injection. Federal officials have offered to retest the DNA in the case.
The number of other cases under review places the examination firmly at the heart of the debate about the death penalty. The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined.
The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).
The unusual collaboration came after it emerged last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.
The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others”, or to suggest a probability for such a match from past casework.
Whatever the review’s findings, the initiative is pushing state and local labs to take similar measures. Last week, the Texas Forensic Science Commission directed all labs under its jurisdiction to take the first step to scrutinise hair cases, in a state that has executed more defendants than any other since 1982.
Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.
“We didn’t do this to be a model for anyone – other than when there’s a problem, you have to face it, and you have to figure how to fix it, move forward and make sure it doesn’t happen again,” FBI general counsel Andrew Weissmann said. “That tone and approach is set from the very top of this building,” he said, referring to FBI director Robert S Mueller.
David Christian “Chris” Hassell, director of the FBI Laboratory, said the review will be used to improve lab training, testimony, audit systems and research, as it has done when previous mistakes were uncovered.
The lab overhauled scientific practices when whistleblowers revealed problems in 1996, and again after three highly skilled FBI fingerprint experts declared that Oregon lawyer Brandon Mayfield’s fingerprint matched a partial print found on a bag in Madrid that contained explosive detonators in 2004, during the investigation into the train bombings which killed 191 people.
US officials had called the match “absolutely incontrovertible” and Mayfield was taken into custody, but the FBI later admitted it had got it wrong, and the print actually belonged to Ouhnane Daoud, an Algerian.
“One of the things good scientists do is question their assumptions. No matter what the field, what the discipline, those questions should be up for debate,” Hassell said. “That’s as true in forensics as anything else.”
Advocates for defendants and the wrongly convicted have called the review a watershed moment in police and prosecutorial agencies’ willingness to reopen old cases because of scientific errors uncovered by DNA testing.
Peter J Neufeld, co-founder of the Innocence Project, which supports inmates who seek exoneration through DNA testing, applauded the FBI, calling the review historic and a “major step forward to improve the criminal justice system and the rigour of forensic science in the United States.”
Norman L Reimer, executive director of the NACDL, also praised the effort, predicting that it would have “an enormous impact on the states” and calling on the defence bar to represent impoverished convicts. “That’s going to be a very big job as this unfolds,” said Reimer.
Unlike DNA analysis, there is no accepted research on how often hair from different people may appear the same.
The federal inquiry came after the Public Defender Service helped exonerate three men from Washington DC through DNA testing that showed that three FBI hair examiners contributed to their wrongful convictions for rape or murder in the early 1980s.
The response has been notable for the department and the FBI, which in the past has been accused of overprotecting its agents. Twice since 1996, authorities conducted case reviews largely in secret after the scientific integrity of the FBI Lab was faulted.
Weissmann said that although earlier reviews lawfully gave prosecutors discretion to decide when to turn over potentially exculpatory material to the defence, greater transparency will “lessen scepticism” about the government’s motives.
It also will be cheaper and more effective because private parties can help track down old cases.
The review terms could have wide repercussions. The FBI is examining more than 21,000 federal and state cases referred to the FBI Lab’s hair unit from 1982 through 1999 – by which time DNA testing of hair was routine – and the bureau has asked for help in finding cases before lab files were computerised in 1985.
Of 15,000 files reviewed to date, the FBI said a hair association was declared in about 2,100 cases. Investigators have contacted police and prosecutors in more than 1,200 of those cases to find out whether hair evidence was used in a conviction, in which case trial transcripts will be sought.
However, 400 of those cases have been closed because prosecutors did not respond. While the FBI employed 27 hair examiners during the period under review, FBI officials confirmed for the first time this week that records indicate that about 500 people attended hair comparison classes given by FBI examiners from 1979 to 2009.
Nearly all of them came from state and local labs. State and local prosecutors handle more than 95 per cent of violent crimes.
In April, the accreditation arm of the American Society of Crime Laboratory Directors declined to order state and local labs to conduct reviews, but issued a public notice recommending that each laboratory evaluate the impact of improper statements on past convictions.
FBI Lab officials say they have not been contacted by other labs about their review or who completed the FBI classes.
Story 2 – Only 1 Percent of “Terrorists” Caught by the FBI are Real
By Joshua Holland, Salon – July 10, 2013
http://tinyurl.com/l37pgv9
“The Terror Factory” author Trevor Aaronson exposes the Bureau’s undercover sting operations for the farce they are
In the dozen years since the 9/11 attacks, we’ve watched as a classified new legal regime for government surveillance has been hashed out, local police forces have become heavily armed military-type units and a whole new layer of bureaucracy has hatched to provide us with an abundance of “homeland security.”
Proponents of this build-up argue that it’s made us safer. They point to hundreds of foiled plots to make their case. But Trevor Aaronson, author of The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, dug into these supposedly dastardly plots and found that they are much less than meets the eye.
Aaronson recently appeared on the AlterNet Radio Hour. Below is a lightly edited transcript of the discussion.
Joshua Holland: Trevor, the raw statistical data say that Americans have a significantly better chance of being struck dead by lightning than of being killed in a terrorist attack here at home. It’s obviously different for people in some other countries.
I got that from the official terrorism statistics put out by the FBI and other related agencies. And they also track foiled attacks. These law enforcement agencies say that these foiled attacks prove that they are saving American lives. How would you respond to that?
Trevor Aaronson: I’d say that the majority of the foiled attacks that they cite are really only foiled attacks because the FBI made the attack possible, and most of the people who are caught in these so-called foiled attacks are caught through sting operations that use either an undercover FBI agent or informant posing as some sort of Al-Qaeda operative.
In all of these cases, the defendants, or the would-be terrorists, are people who at best have a vague idea that they want to commit some sort of violent act or some sort of act of terrorism but have no means on their own. They don’t have weapons. They don’t have connections with any international terrorist groups.
In many cases they’re mentally ill or they’re economically desperate. An undercover informant or agent posing as an Al-Qaeda operative gives them everything they need… gives them the transportation, gives them the money if they need it, and then gives them the bomb and even the idea for the terrorist attack.
And then when that person pushes a button to detonate the bomb that they believe will explode—a bomb that was provided to them in whole by the FBI—agents rush in, arrest them and charge them with conspiracy to use a weapon of mass destruction and then parade that person out to the public saying, “Look at us. We caught a terrorist. This is us keeping you safe.”
If you look at the record of prosecutions in the decade after 911, there has yet to be a case of some Al-Qaeda operative providing the means for a wannabe terrorist to do an act of terrorism.
It’s only the FBI that’s providing the means through these sting operations. What this has done is really inflate the threat of terrorism within the United States—particularly from Muslim terrorists—because in almost all of these cases sting operations target men on the fringes of Muslim communities who might be mentally ill, economically desperate or otherwise very easily manipulated by an informant who can make a lot of money in these sting operations.
JH: The thing that I find eye-opening about this is—I’ve certainly known that many of these supposed plots were basically inventions of the FBI, but I didn’t know it was that consistent. You’re saying that this is the case with all of the suspects we’ve heard of in the post-911 era?
TA: For the purposes of my book, I used the 10 years after 9/11 as the area that I was going to analyze data in, and what we know is that in the 10 years after 9/11, there were a little more than 500 defendants who were charged with federal crimes involving international terrorism. About 250 involved people who were charged with things like immigration violations or lying to the FBI and who are somehow linked to terrorism.
Their charges did not involve any sort of terrorist plot. Of the 500, you have about 150 who were caught in sting operations; these operations that were solely the creation of the FBI through an FBI informant or undercover agent providing the means and the opportunity, the bomb, the idea and so on.
Then if you’re really being generous, you can find only about five people of the 500 charged with international terrorism who were involved in some sort of plot that either had weapons of their creation or their acquisition or were connected to international terrorists in some way.
These include Najibullah Zazi who came close to bombing the New York City subway system, Faisal Shahzad, who delivered a bomb to Times Square that fortunately didn’t go off, and then you have Jose Padilla—the dirty bomber—the underwear bomber and the shoe bomber, for example.
Being generous, those are the five that you can point to in the decade after 9/11 who seemed to pose a significant threat. Fortunately, none of them were successful. That’s a handful compared to the more than 150 who were caught in these sting operations, and in these sting operations the men never had access to weapons; it was only the FBI that provided it as part of the sting operation that they were controlling from beginning to end.
JH: I’m no attorney, but this sounds like it gets close to entrapment. Have defense attorneys raised that?
TA: Yeah, and this is an interesting area of this story. Obviously, a layman like you or me looking at this thinks this is definitely entrapment. Unfortunately, the legal definition of entrapment is very different, and what we know is that 11 defendants have formally argued entrapment in these cases and none have been successful.
A large reason for that is the government is able to argue against entrapment in two ways; one is to say the person was predisposed to commit the crime. That he had done something that suggested he was interested in committing a crime before the introduction of the government agent.
Traditionally speaking, if this was a bank robbery plot, the government would have to prove that the defendant was researching bank robberies or casing banks prior to the FBI informant getting involved. The FBI and the Department of Justice are able to do this very easily in these terrorism cases in part because they are able to introduce evidence that is really sketchy to prove that there was predisposition.
For example, often the government will cite the fact that someone watched a jihad video and they’ll put on the stand a government expert who will testify that, “Hey, you know, because he watched the jihad video and this is one of Al-Qaeda’s classics,” that meant he was becoming a terrorist and the government line essentially, rather an absurd one, is that if you watch a Jihad video then, trance-like, you become a terrorist.
It’s absurd on its face because I’ve watched those videos. You’ve watched those videos and I don’t think either of us are going to become terrorists.
At the same time, how the government is able to argue against entrapment is to really weight the jury in its favor and it does that by – in these sting operations, the government controls every aspect of the plot so they could have a guy who wants to commit violence and they say to him, “Okay, here’s a nine millimeter handgun. Go to the mall and shoot a couple people in the knee.”
That would be awful but it wouldn’t be something that would necessarily shatter the security of the United States of America. Instead, in these sting operations, they give the defendants these bombs that are so enormous and so big that even a sophisticated criminal organization would have trouble obtaining them.
Then they have them unleash those bombs at subway stations or downtown skyscrapers and it makes the jury think, You know what? I ride that subway system. I have a son who works at that skyscraper. What that does is effectively erode any empathy that the jury might have for the defendant and that empathy is necessary for a jury to say, You know what? That person was entrapped.
What we’ve seen is a very effective role by the government in battling against this entrapment defense and now that we have 11 cases where entrapment has been formally argued, none being successful. I’m among those who say if you’re a Muslim charged with terrorism in the United States there really is no such thing as entrapment today.
JH: I’m a fan of that show Breaking Bad, and yet I have not started cooking meth in my backyard.
TA: If you ever got involved in a sting operation with meth, the fact that you’re a “Breaking Bad” fan might be used against you.
JH: Now, you said that a lot of people caught up in this dragnet, if you will, are poor, have mental health problems, are disenfranchised and sound like they are marginal people. Can you give us a few examples, specific case studies in the book to illustrate this point?
TA: Yes. One example which is really an absurd one is a man named Derek Shareef. Derek was this recent convert to Islam and he worked at a video game store in Rockford, Illinois. As it happens, his family has ostracized him as a result of his conversion and he was living in his car, which also happened to have just broken down.
Derek, who is earning close to minimum wage at this video game store, was really down on his luck. We don’t know exactly why the FBI targeted him but they sent an informant into the video game store.
This informant was a convicted drug dealer who then started working with the FBI and it happened to be the day before Ramadan and the informant strikes up a conversation with Derek and Derek explains the hard circumstances he’s found himself in.
The informant says, “You know what? I’ve got an extra bedroom at my place. I don’t use my car very often; you’re welcome to use it. Why don’t you stay with me while you get back on your feet?”
Derek, being newly religious and devout, thinks this is the work of God since it’s the day before Ramadan and he goes and lives with this man, and over the course of weeks, this man’s slowly stoking Derek’s anger about his circumstances and about American foreign policy. Derek at some point says, “I want to do something about this. I want to kill a judge.” The informant says, “Okay, which judge?”
Of course, Derek couldn’t name the name of any judges and so the informant then gets Derek involved in a more manageable plot. He suggests that they go attack a shopping mall on Christmas Eve. For whatever reason, as in a lot of these plots, Derek agrees that he wants to do that, but the problem for the FBI informant and the FBI agent in this case was that Derek didn’t have any money.
He didn’t have any money to buy guns. He didn’t have any money to buy any weapons that he would need for the plot, so the FBI agents and the undercover informant cook-up this idea where the FBI informant will introduce Derek to an arms dealer who can provide grenades and Derek, in turn, has these two ratty, old stereo speakers, which are the only thing he has of earthly value and the informant tells Derek, “I think if you bring your stereo speakers to an arms dealer, he’ll just say, OK, fair trade and here’s four grenades.”
I don’t know many arms dealers in this world, but I’m pretty sure that none of them is going to accept old stereo speakers for grenades, but of course, Derek didn’t know that.
Derek shows up at the shopping mall dutifully carrying his stereo speakers, gives them to the undercover agent who’s posing as the arms dealer, and the arms dealer hands over the grenades. Agents rush in, arrest Derek and charge him with conspiracy to use weapons of mass destruction, and he’s ultimately serving 17 years in prison.
Clearly that’s an example of a man on the fringes of our society, unlikely to ever commit significant violence on his own and yet through this sting operation he is empowered to get involved in a plot that, were it real, would have been really horrifying.
And when it’s portrayed in the public and through the media, it does seem horrifying. Here is this man plotting with an Al-Qaeda operative, an undercover FBI informant, to blow up people in a shopping mall on one of the busiest shopping days of the year.
Of course, the truth is that that was nothing more than a fantasy by the FBI, controlled at every step by the FBI and no one was really in danger and there’s no evidence to suggest that Derek ever would have met a real Al-Qaeda operative who could have made him the terrorist that he apparently wanted to be.
JH: Trevor, let’s talk a little about the incentives here. It seems to me—and this isn’t an original thought—that there’s a bureaucratic imperative to justify agency budgets. After 9/11, kind of in a panic, we basically doubled the size of our intelligence agencies, created a new Department of Homeland Security, and the FBI refocused its mission.
How much of this tendency to entrap these people comes from that imperative to justify bloated counter-terrorism budgets in your view?
TA: Actually a lot. I’m not of the opinion that there are high-ranking people at the FBI who are saying, You know what? We want to stick it to Muslims in the United States. Although there’s evidence of xenophobia and a certain amount of Islamophobia within the FBI, I don’t think that’s the real reason behind this.
Instead, I think the reason we’re seeing these really aggressive sting operations is the result of something of a bureaucratic evil. That is every year Congress allocates the FBI’s budget, and they set the counter-terrorism budget at $3 billion, which is the largest part of the FBI’s budget, more than it receives for organized crime and financial fraud.
The FBI can’t exactly spend $3 billion and say, Hey; you know what? We spent your money and we didn’t find any terrorists. Even though the truth is that there’s a lot of money for counter-terrorism and just not a lot of terrorists going around today. What happens is that these sting operations are a very convenient mechanism for the FBI to say, Hey look at us. We’re keeping you safe.
From the highest levels of the FBI, there’s pressure to build counter-terrorism cases because they just received $3 billion from Congress and that pressure then flows down to the field offices, which then, in turn, put pressure on individual agents to build counter-terrorism cases and those individual agents then incentivize informants who can make hundreds of thousands of dollars per case.
They’re sent out in the communities looking for people interested in committing acts of terrorism. What they’re not finding are people who are actively building bombs or getting involved in significant terrorist plots.
Instead, they’re finding these outliers, these people on the fringes of communities who for the most part are loudmouths who might aspire to violence but have no means of their own.
And then they’ll bring them into the plot knowing that if they get someone on the hook, they can make lots of money, and then when they get a prosecutable case, that case floats up and you have a situation where FBI director Robert Muller consistently testifies before Congress about counterterrorism and cites these cases involving sting operations and what he describes as, Oh, this would have been a terrible, terrible thing had it been allowed to occur … it was a bombing of synagogues in the Bronx, or whatever it might be and never fully describes how that plot to bomb synagogues in the Bronx was really only made possible through an FBI informant who provided everything that the guy needed.
My criticism of this is not only that this bureaucratic evil exists and this is what is happening, but on a greater level the question people should be asking is, Why, despite all of this money and 15,000 informants employed by the FBI today are they finding it so easy to catch these people who are mentally ill and economically desperate while they’re missing the really dangerous people?
Faisal Shahzad delivered his bomb to Times Square and no one knew about him until that day. If you take the case in Boston with Tamerlan Tsarnaev, this was someone that the FBI even looked at and decided he’s not a threat.
The FBI has proven itself very good at catching these people in sting operations who can be easily manipulated, but they’ve also proven themselves almost incompetent in finding the truly dangerous terrorists who do have these connections overseas.