Donald E. Gates. Photo: Wade Payne/Washington Post
Donald E. Gates served 28 years in prison for a crime he did not commit. In 1981, Gates was convicted of raping and murdering a Georgetown University student, whose body was found in Rock Creek park with five bullet wounds to her head. The key piece of evidence against Gates – providing what the prosecutor described as both the “link” to and “corroboration” of all the rest of the evidence – was a hair found on the victim’s body that, according to an FBI analyst, matched a hair taken from Gates. Gates was not released until last December when DNA tests finally disproved this evidence.
The Washington Post ran a story this weekend about Gates’ release in which it emphasized the prosecutor’s reaction. In fact, the Post devotes the first six paragraphs of the story to J. Brooks Harrington, the former Assistant U.S. Attorney for the District of Columbia, who handled the case for the United States.
We find out in the first paragraph about Harrington receiving the type of news that “no prosecutor wants to hear.” Two paragraphs later, we learn that Harrington is unable to express “how sick” this made him feel. We find out in the next paragraph that other prosecutors are concerned that this type of thing will happen to them. Harrington attempts some self-justification in the fifth paragraph: “You do your best with the evidence you have. I was just flatly wrong about it. I did my best, and it wasn’t good enough.” Finally, we learn in the sixth paragraph that Harrington is “emotion fractured” and that he keeps a photograph of Gates in a frame over his desk.
It is not until the seventh paragraph – barely still on the first page — that we finally hear something from Gates. Even then, it is in connection with the prosecutor. “I forgive you,” Gates wrote Harrington after he was released. “I forgave you a long time ago. Now I consider you my friend.”
And it is not until the eighteenth paragraph of the Post story that we finally learn why Gates was falsely convicted. It turns out that the FBI analyst who reviewed the hair sample had fabricated his testimony against Gates at trial. And apparently this same analyst had committed similar fabrications in cases across the country. Even then, the Post hastens to bring us back to Harrington, because of course we are all viewing this from his perspective. Harrington had no way of knowing about this, the Post assures us. “None of us knew the hair examiner was dishonest,” Harrington says.
So where is the true story in this case? Is it that Harrington feels really, really bad? Or is it that we find out once again that misconduct on the part of law enforcement personnel has resulted in an innocent person spending years behind bars – in this case, 28 years – for a crime he or she did not commit?
For me, the true story arising out of the FBI analyst’s malfeasance in this case – the story that the Post seems to have missed – is that we need to overhaul the way our legal system currently approaches forensic science. This was the conclusion the National Academy of Sciences reached — in its typically understated way — in its report, entitled “Strengthening Forensic Science in the United States: A Path Forward,” that came out in February 2009.” Click here for a full copy of the report. Click here for access to an ABA article on the report.
Two of the report’s most controversial recommendations merit mention here because, if adopted, they could go a long way toward preventing the type of injustice that befell Donald Gates from re-occurring. The first recommendation is establish a National Institute of Forensic Sciences (NIFS), a federal entity to be created by Congress, to set national standards for forensic science professionals and laboratories. As microbiologist Eric Lander pointed out in 1989, current forensic science is virtually unregulated. As a result, there are now more stringent requirements for diagnosing strep throat than for performing the types of tests that could put a man onto death row.
The second recommendation would be to further the independence of forensic science laboratories by removing them from the “administrative control” of law enforcement. As one expert has noted, “the police agency controls the formal and informal system of rewards and sanctions for the laboratory examiners. Many of these laboratories make their services available only to law enforcement agencies. All of these factors raise a legitimate issue regarding the objectivity of laboratory personnel.”
The expert who made this statement was named Joseph Peterson. He made the statement in 1983. At that point, Donald E. Gates had only been in jail for two years.