Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than...

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WASHINGTON — Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by The Washington Post and “60 Minutes” found.

The science, comparative bullet-lead analysis, was first used after President Kennedy’s assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.

In 2004, however, the nation’s most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI’s testimony about the science “unreliable and potentially misleading.” Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect’s gun or cartridge box were so overstated that such testimony should be considered “misleading under federal rules of evidence.”

A year later, the bureau abandoned the analysis.

But the FBI lab has never gone back to determine how many times its scientists misled jurors. Internal memos show the bureau’s managers were aware by 2004 that testimony had been overstated in a large number of trials. In a smaller number of cases, the experts had made false matches based on a faulty statistical analysis of the elements contained in different lead samples, documents show.

“We cannot afford to be misleading to a jury,” the lab director wrote to FBI Director Robert Mueller in late summer 2005, outlining why the bureau was abandoning the science. “We plan to discourage prosecutors from using our previous results in future prosecutions.”

Despite those private concerns, the bureau told defense lawyers in a general letter dated Sept. 1, 2005, that although it was ending the technique, it “still firmly supports the scientific foundation of bullet-lead analysis.” In at least two cases, the bureau has tried to help state prosecutors defend past convictions by using court filings that experts say are misleading. The government has fought releasing the list of the estimated 2,500 cases over three decades in which it performed the analysis.

For most affected prisoners, the typical two- to four-year window to appeal their convictions based on new scientific evidence is closing.

Dwight Adams, the now-retired FBI lab director who ended the technique, said the government has an obligation to release all the case files, to independently review the expert testimony and to alert courts to any errors that could have affected a conviction.”It troubles me that anyone would be in prison for any reason that wasn’t justified,” he said.

The Post and “60 Minutes” identified at least 250 cases nationwide in which bullet-lead analysis was introduced, including more than 12 in which courts have either reversed convictions or now face questions about whether innocent people were sent to prison. The cases include a North Carolina drug dealer who has developed significant new evidence to bolster his claim of innocence and a Maryland man who was recently granted a new murder trial.

In response to the information uncovered by The Post and “60 Minutes,” the FBI late last week initiated corrective actions.

The Post-“60 Minutes” investigation “has brought some serious concerns to our attention,” said John Miller, assistant director of public affairs.

Current FBI managers said that they originally believed that the public release of the 2004 National Academy of Sciences report and the subsequent ending of the analysis generated enough publicity to give defense attorneys and their clients plenty of opportunities to appeal. The bureau also pointed out that it sent form letters to police agencies and umbrella groups for local prosecutors and criminal defense lawyers.

Even the harshest critics concede that the FBI correctly measured the chemical elements of lead bullets. But the science academy found the lab used faulty statistical calculations to declare that bullets matched even when the measurements differed slightly. FBI witnesses also overstated the significance of the matches.

“Frankly, the letters that they sent them, you know, were minimizing the significance of the error in the first place,” said defense lawyer Barry Scheck, whose nonprofit Innocence Project has helped free more than 200 wrongly convicted people. The letters said “our science wasn’t really inaccurate. Our interpretation was wrong. But the interpretation is everything.”

Since 2005, the nonpartisan Forensic Justice Project, run by former FBI lab whistle-blower Frederic Whitehurst, has tried to force the bureau to release a list of bullet-lead cases under the Freedom of Information Act. The Post joined the request. But the government has stalled, among other things seeking $70,000 to search for the documents.

“60 Minutes” correspondent Steve Kroft and producers Ira Rosen and Sumi Aggarwal, Post researchers Alice Crites and Madonna Lebling, and freelance researcher Jilly Badanes contributed to this report.

Footnotes

“60 Minutes” 7 p.m. today, KIRO-TV

Part 2: A former Baltimore police sergeant imprisoned on a web of evidence that has come unraveled. > Monday