FBI malfeasance undercuts death penalty

Jul. 26, 2014 @ 07:30 PM

This editorial appeared in The Charlotte Observer

The death penalty's flaws have been well-documented. But a new report from the Justice Department's Inspector General reveals some of the most troubling evidence yet, and provides a fresh reminder of why North Carolina and other states will forever be on shaky ground until they abolish it.

The FBI used flawed forensic evidence and overstated testimony by 13 lab examiners to help convict up to 64 murder suspects and put them on death row, the report said. Yet Justice and the FBI took five years to identify those suspects and delayed telling state prosecutors that it was reviewing the cases, so the states had no way of knowing that the convictions might be flawed.

At least three men were executed before a Justice Department task force fully reviewed those cases. In at least one, the defendant would not have been eligible for the death penalty without the FBI's flawed work, the report said. (The Justice Department generally agreed with the report's findings.)

Among the 64 on death row with questionable cases were two from South Carolina: Donald Gaskins was executed in 1991 and Leroy Drayton was executed in 1999. In addition, 17 Carolinas cases were among 402 in which defendants were convicted on evidence so problematic that the task force ordered an independent scientific review of the FBI examiners' work. The report was able to confirm that prosecutors revealed the findings to only 15 of the 402.

This all started in the early 1990s, when FBI whistleblower Fred Whitehurst alleged that examiners were producing unreliable forensics. A Justice Department task force worked from 1996 to 2004 reviewing cases and informing affected defendants. The Inspector General reviewed the task force's work after the Washington Post raised questions in 2012 about its performance and showed that at least three D.C. men had been convicted using sloppy FBI work. All three have been exonerated.

Besides the FBI's delays and failure to communicate, the Inspector General found that the task force failed to review entire categories of cases, including some of those involving the most notorious FBI examiner.

All of this swipes another leg out from under the death penalty defenders' stool. The number of people on death row later found to be innocent continuously climbs. In North Carolina, Alan Gell sat on death row for six years before being exonerated in 2004. This month, Durham Judge Orlando Hudson called the murder conviction of Darryl A. Howard the most "horrendous" he's seen in 34 years as a judge and ordered him released. On Monday in Washington, a Superior Court judge called Kevin Martin, who spent 26 years in prison for murder, "actually innocent."

The possibility of executing an innocent person used to be a hypothetical argument against the death penalty. Now we know there's nothing hypothetical about it.