Our regular guest blogger here, Dr. Frederic Whitehurst, JD, PhD was featured for his courageous work in exposing invalid science with the FBI. He is a true American hero! Way to go Dr. Whtiehurst!

Dr. Whitehurst will be presenting the Donald Gates case and his efforts at the American Chemical Society national meeting and the symposium titled “Forensic Science, Chemistry and the Law: Innocence! The work of the Innocence Project” which will be held in Philadelphia on August 21, 2012. We hope to see you all there.

FBI to review thousands of old cases for flawed evidence

By Isolde Raftery, msnbc.com

Updated at 9:51 p.m. ET: Months after the Washington Post revealed that lab technicians at the FBI possibly exaggerated evidence, resulting in at least three wrongful convictions, the Department of Justice has announced it will review thousands of old cases.

The review, the largest in U.S. history, will focus on work by FBI Laboratory hair and fiber examiners since at least 1985, the Post reported.

In April, the Post wrote about two men who were convicted largely because of contaminated FBI hair analysis. A review of the evidence has since resulted in the release of both men.

A reporter at the Post had been working on a story about Donald Gates, a D.C. man released after DNA evidence proved his innocence, when he learned about Frederic Whitehurst, an FBI lab chemist who blew the whistle on the FBI Laboratory in the mid-1990s. Whitehurst said he watched colleagues contaminate evidence and, in court, overstate the significance of their matches.

“There was a lackadaisical attitude,” Whitehurst said.

When Whitehurst, a chemist with a doctoral degree from Duke, arrived at the FBI crime lab in 1986, the first thing he noticed was that the place was, as he called it, a pigsty. The equipment was outdated and there was a film of black soot coating the counters – a dust from the vents that the agents called “black rain.”

It surprised him, too, he said, that outsiders were allowed to tour the lab, which he said should have been a controlled environment.

When he raised these issues, a coworker told him, “Before you embarrass the FBI in a court of law, you’ll perjure yourself. We all do it.”

After the first World Trade Center bombing, Whitehurst testified that supervisors pressured him to concoct misleading scientific reports. When he refused to testify that a urea nitrate bomb had been the source of the explosion, the FBI found another lab technician to testify.

Over the years, Whitehurst said, he brought in almost-new equipment that had been turned over by the National Institutes of Health. He implemented protocols, because there hadn’t been any when he arrived.

NBC San Diego video: Thousands of cases under review

But other problems arose, Whitehurst told msnbc.com. He learned that an agent had, for the previous nine years, rewritten his scientific reports to support the prosecution. When he complained, he said he was told the agent hadn’t done anything wrong.

“You get patted on the head if you’re the guy who saves the case,” Whitehurst said, explaining why agents would provide misleading information. “They get promoted; they’re the guys everyone crowds around. It’s a very tight family. A scientist who asks a question and doesn’t go along, he gets isolated.”

Corrupt lab technicians remained employed even after Whitehurst started speaking out about the lab, said David Colapinto, general counsel for the National Whistleblowers Center.

In 1995, Whitehurst told Larry King on CNN, “I dislike being called a whistleblower, I’m a law enforcement officer and if I see violations of the law abuses of authority corruption. I’m required to report those.”

As an agent, Whitehurst wrote 237 letters to the Inspector General, complaining about the lab. The longest was 640 pages.

“The pressure was so crazy that every so often, I’d just break down and cry,” he said.

Sarah Fox, Occupy Wall Street link could be due to lab error

The Justice Department ultimately did review thousands of cases in response to Whitehurst’s reports, Colapinto said, but he said the task force assigned to investigate operated in secret and the findings were not published. Rather, Colapinto said, prosecutors who had originally tried those old cases decided whether the new evidence should be disclosed to the defense.

Dissatisfied with the Justice Department’s review, Whitehurst requested the task force’s findings through the Freedom of Information Act. Over several years, he received tens of thousands of pages.

Some changes were made, however. The FBI moved its lab from the FBI’s J. Edgar Hoover building in Washington, D.C. to a separate building in Quantico, Va.

The National Academy of Sciences recently pushed for further independence, however. The organization, made up of elite scientists from around the U.S., recommended the creation of an independent federal agency to review evidence. That agency, ideally, should not be connected to the academic community, the scientists said.

Whitehurst, now a forensic consultant and a criminal defense lawyer in North Carolina, and the National Whistleblowers Center worked with the Post for a year on the expose that came out in April. That story apparently pushed the Justice Department to conduct another, more transparent review of old evidence.

The Justice Department says that this time, the review will include outsiders such as the Innocence Project, according to The Associated Press. The Innocence Project, which focuses on exonerating the wrongfully convicted, would watch over the government’s review.

The FBI did not respond to request for comment. 

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Of moos and clucks-the myth of FTIR identification

By:  Frederic Whitehurst, J.D., Ph.D. [1]

OK, so we will now discuss moos and clucks. Which is the basis for the problem with Fourier Transform Infrared Spectroscopy (FTIR) in forensic science. [2] If you close your eyes in a stock yard you can’t tell what moo came from what cow. If you close your eyes in a chicken house you can’t tell what cluck came from what chicken.
FTIR

FTIR

Infrared spectra can be seen to be “fingerprints” of organic compounds. However, we seldom if ever see organic compounds by themselves in forensic samples. (We have what can be described as stock yards or chicken houses full of organic cows/chickens.) What we see are complex samples the content of which is unknown. The infrared spectra are based upon absorption of infrared radiation by particular moieties (functional groups) (parts of the) molecule. But different molecules can have the same functional groups. So when we have a mixture of materials we can’t tell what molecule containing what functional group gave rise to the peak on the spectrum.
The forensic analyst in order to cut short his work load simply decides that because he sees, for instance, carbonyl groups together in a particular area of the spectrum, must have cocaine when in fact there are tens of thousands of molecules which have carbonyl groups. We don’t know what is in the alleged cocaine plus diluent mixture so we don’t know what molecules are giving rise to those carbonyl peaks. The forensic analyst ignores the problem and with a magic wave of his or her hand simply assigns the peaks based upon a request from the field to “check for the presence of controlled substances.” The protocol he is using has not been validated nor determined to be reliable. He or she seldom if ever separates the components with chromatography, leaves the data in the file, and upon questioning says he or she knows that he or she is looking at cocaine peaks based upon his or her vast knowledge and experience. Then he or she may run a GC/MS with its separation powers and detect the presence of cocaine.
However, the FTIR and GC/MS must stand alone. The FTIR gives an answer and the GC/MS tests the hypothesis. But with the FTIR data in the file the FTIR data is different from cocaine and proves the null-hypothesis presented by the GC/MS and the government data proves that cocaine is not present.
The proper way to use FTIR in a forensic setting is GC/FTIR or solvent or mechanical separation.
Another trick that the government lab is using everywhere is to present the spectra without the peaks labeled according to their absorption energy. The x-axis on the spectra goes from 400 to 4000 cm-1.  The resolution on that axis is of such poor quality that one can not discern with the naked eye what the actual absorption energies are so two spectra may look alike but can not be compared.
an analysis of an unknown by FTIR
an analysis of an unknown by FTIR (note that the peaks are not labelled)
standard by FTIR of cocaine (note it the peaks are not labelled)

standard by FTIR of cocaine (note that the peaks are not labelled)

The way to bring that out is to ask the analyst on the stand to label each peak in the spectrum. If he or she can’t do that, which he or she can’t ever, then you ask how you compare one spectrum on paper to another.  When the spectroscopist uses a resolution of 4 cm-1 on the energy axis and a protocol that demands that peaks be within +/-4cm-1 to match then without the labeled peaks he or she can’t say he or she is within the variance required by the protocol in order to make a match.
Another issue with FTIR is that even very small differences in spectra can mean very large differences in structure of molecules. The government analyst normally ignores small differences. One can see that clearly in the size of the peaks. Two peaks together have not only location but amplitude (size). If you compare the FTIR spectrum to another the ratios of the two peaks or any number of peaks should remain the same or else the analyst must be able to explain why the ratios are the same. Peaks on the edge of larger peaks are often ignored also. These issues can be detected by carefully putting two spectra in front of you and simply comparing them for the slightest differences. You will find those differences in almost all government IR spectra comparisons.
To teach about how this is performed in the real world, one needs to present what the government presents: the spectra without the peaks labeled, and then what the government knows: the same spectra with the peaks labeled. The information concerning the energies absorbed is information the government has and yet does not present, in violation of discovery requests and Brady-like obligations. If energies are not within acceptable range then the information is Brady information when the government opines that two spectra are the same. Attorneys should be able to see how this information is hidden.
Cocaine base with no peaks labeled

Cocaine base with no peaks labeled

The way to label peaks is to simply push the button that says “Label Peaks” either on the face of the screen or in a set of tools in the FTIR handling algorithm. So  what about peak resolution? Do you (the resenting analyst in court) understand the difference between digital and analog data collection? It can make a huge difference  in spectral interpretation. It can mean match or no match.
Cocaine base with peaks labeled

Cocaine base with peaks labeled

A way to handle the mixture problem is to do a peak subtraction using the computer stored spectra. Suppose you think you have cocaine and caffeine and lidocaine. You can’t say you have cocaine but you think you have cocaine. So you ask that the spectra of caffeine and lidocaine be subtracted from the total spectrum to see if you get cocaine. But no one knows how much caffeine and lidocaine are present or even if they are present so when you subtract those spectra you will never get a good spectrum for cocaine. Just won’t.
Unknown possibly with cocaine

Unknown possibly with cocaine

The difference between an academic course and the practical application is that you learn theory in the academic courses but academia has not yet really entered into the extremely complex world of forensic samples. We are at the front lines of applying science to real world situations, finding the government underfunded, undereducated, undermanned, while trying to complete impossible tasks.  So they ignore the small stuff, which in science is always very important.

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[1] Executive Director, Forensic Justice Project, Washington, D.C., B.S. Chemistry, 1974, East Carolina University, Ph.D. in Chemistry, 1980, Duke University, J.D., 1996, Georgetown University School of Law. (202)342-6980.

[2] FTIR is an instrument that is used primarily in solid drug dose (per-consumption) form identification of an unknown. The result of the analysis is a spectrum. The spectrum of the unknown is compared against a known standard. In interpretation of the spectra is made by the analyst with some sort of conclusion offered typically as an absolute identification as if with perfect specificity.

Circuitous thought-the myth of reliable and valid marijuana identification in the courtroom

By:  Frederic Whitehurst, J.D., Ph.D. [1]

As scientists we all agree that the hallmarks of science are validity and reliability. What do we mean by that? Well, the government scientist has to agree that his method of answering a question put to him has to be valid and reliable. So no matter how he identifies marijuana that method must be valid and reliable. Scientists determine validity and reliability with data. What does validity mean? It means that the method we use to answer a question must appropriate for the use to which we put it. Better said, just because we have a hammer does not mean everything is a nail.

The question we are asking about marijuana is “Is this material marijuana?” That means is it marijuana to the exclusion of all other plants? So we have to have a protocol that will show us that the material we have is marijuana to the exclusion of all other plants. In order to show that our protocol is valid we must either have tested all other plants or have a theoretical argument as to why no other plant can be mistaken for marijuana using our protocol. The only attempt at validation that has been conducted in the past is the work of George Nakamura and John Thornton back in the early 1970’s. That did not show the protocol identified marijuana to the exclusion of all other plants but only tested the protocol on 31874 plants. So no one has validated the protocol. The government scientist can not show that. In a Frye state we accept the opinion if the method used to arrive at it is accepted by the community of peers. The community of peers do not accept that the marijuana analysis protocol is valid because no one has validated the protocol. They just use the method. No one has validated it. As for reliability, that means if the tests is performed by one person many times or by many people will one get the same answer. However, there are no reliability studies known. Government scientists simply say that they always get the right answer and never have gotten the wrong answer but they are not being tested for reliability with known standards. They are simply saying that the unknowns must be marijuana because the police say they are marijuana so they must be marijuana.

Circuitous thought. Wrong thinking. Compound that with the paucity of scientific data that exists to test the reliability hypothesis and you have nothing to refer to to indicate that the protocol is actually reliable. So the peer group would agree that in order for the protocol to be used it must be shown to be valid and reliable and it has not been shown to be so it can’t be used…but they use it anyhow.

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[1] Executive Director, Forensic Justice Project, Washington, D.C., B.S. Chemistry, 1974, East Carolina University, Ph.D. in Chemistry, 1980, Duke University, J.D., 1996, Georgetown University School of Law. (202)342-6980.