Your client loves a woman.  They date for two months, then the woman breaks it off. Something about jealousy and possessiveness.  Something about drinking too much.  Your client is heartbroken.

If your client is John Cusack in Say Anything, he stands outside her house with a boom box on his shoulder blasting out “In Your Eyes.”  Iona Skye, the woman in the movie, loves this.  He wins her back.

Your client doesn’t do boom boxes. He does text messages. Lots and lots of text messages. He doesn’t get the woman back. Instead, he ends up on the wrong end of a temporary restraining order. The purpose of today’s hearing is to determine whether the court will turn this temporary order into a year-long Civil Protection Order.

The girlfriend testifies. She is attractive, well-spoken, assertive. Her lawyer leads her through the relationship in pain-staking details.  You can feel your client, seated next to you at the counsel table, slumping lower with every embarrassing revelation.

It is now time for your cross-examination.  You know many things about this woman, many personal and embarrassing details, and you briefly consider how you might use some of these details against her. But you decide this is not the right approach. You don’t want to bully, embarrass or victimize her. It is your client you want the judge to sympathize with, not his accuser.

You focus first on context.  Yes, she admits, the relationship early on was loving and tender.  Your client was always gentle.  No, there was never any physical violence or threats in the relationship.  Yes, we communicated often through text messages.  Sometimes five or six messages a day. And by phone.  And by email.  And through Facebook.  And, yes, the breakup may have been a surprise to your client.  It shouldn’t have been, he was missing the signals, but, yes, I grant that it may have seemed sudden.

Now you turn to the text messages, the major evidence against your client, the weapon she claims he used to threaten, stalk, and harass her.  You approach the witness and you hand her the stack of the messages she had carefully printed out from her cell phone.  You ask her to read a few of them.  You want the judge to get a sense for the loving and tender tone.

She obliges, but as you are walking back to the counsel table, she accuses you of cherrypicking.  “You only had me read the nice ones,” she says.

You stop and turn, and you smile.  She’s right.  You did pick out a few of the nicest ones for her to read.  “Buenas noches y duerme con los angelitos” which she translates for the judge as “good night and sleep with the angels.”  Or:  “I woke up early missing you.  Remember to dress warmly.”

You don’t discipline her for being an uncooperative witness, for speaking when there was no question on the floor, the way you normally would.  Instead, you head back to the witness stand and you hand the pile of text messages back to her. “You’re absolutely right,” you say.  “I did pick out the nicest ones for you to read.  In fairness, is there another message you would like to read for the judge? Go ahead.  Pick out another one yourself and read it to the court.”

She looks so pleased with herself, you wonder if she has forgotten what it is included in the pile of text messages she herself printed out.  There is not a negative word in the whole lot.

She skims through them quickly, slowing down when she gets toward the end. “Ah,” she says finally and reads one out.

“Thank you,” you say when she has finished. “But that one has already been read.  Is there another one you could pick out that His Honor has not already heard?”

She starts going through the messages again.  When she comes to the end of the pile, you think for a second that she might go through the stack a second time.  But she doesn’t.  Instead, she hands the pile back to you. “Maybe it’s not what was said,” she says, “but how it was said.”

How it was said.  Yes, and this is what makes this whole thing so sad, so depressing.

These two people, you think, were once in love.  The very same words – “I love you, I need you, I want to spend the rest of my life with you” – were welcome, perhaps cherished, in one context.  In another context, they became the weapons that threatened and terrified this woman.

The question for the judge – and the question that will decide this hearing — is the tipping point.  At what point should your client have gotten the message?  At what point should he have realized that his advances, his expressions of love, were no longer welcome?  At what point should he have given up on this woman and decided to move on with his life?

I understand from Kathryn MacDonald that ABC’s Nightline will air a segment this evening (11:30 pm EST) on the Jeffrey MacDonald case.

Jeffrey MacDonald (c) 1970

The U.S. Court of Appeals for the Fourth Circuit today denied the government’s motion to dismiss the defendant’s appeal in the case of United States v. Jeffrey MacDonald. As I discussed in greater detail in an earlier post, MacDonald has always maintained that he was a victim, not the perpetrator, of the murders. MacDonald’s appeal is based on grounds of actual innocence.

In addition to denying the motion to dismiss, the court expanded the range of issues that will be decided during the appeal. For example, it ordered both sides to submit further information/argument on the significance of court-authorized DNA test results.  According to a press release issued by MacDonald’s supporters, DNA tests of hairs found under the fingernail of MacDonald’s two-year-old daughter and under the body of his wife were “unsourced.”  The court will also examine potential misconduct by trial prosecutor James Blackburn, who was later disbarred and imprisoned for crimes of dishonesty.

I talked this afternoon with Kathryn MacDonald who said she was “heartened” and “thrilled” by the news:  “I couldn’t be more gratified that the 4^th Circuit is recognizing the significance of the evidence as a whole, especially the DNA evidence.  It renews my faith that the truth matters.  I have never accepted that an innocent person stays in prison.”

I have written a number of posts over the last couple of months about the Donald E. Gates case. As you will recall, Gates was convicted of a crime he did not commit and initially spent 16 years in jail in large part due to the false testimony of former FBI analyst Michael P. Malone.  In 1997, after the government became aware of problems with Malone’s testimony, Gates then spent another 12 years in prison before the government notified his attorneys of what they had found out. Gates wasn’t released until December 2009. This was 28 years after he was falsely convicted.

Jeffrey and Kathryn MacDonald (c) 2007

A  couple of weeks ago, I got a call from a woman who told me she had been following my posts on Donald Gates.  I am always glad to hear from readers of this blog – either by phone, by email or through a comment on the site – and I thanked her for her kind words.

When I asked her who she was, she told me that she was named Kathryn and that she was the wife of Jeffrey MacDonald.

I was racking my brain to determine why the name sounded so familiar. Had I grown up with him?  Gone to college or law school with him?  Worked with him?  Then it occurred to me:  “You mean the famous Jeffrey MacDonald?  The Jeffrey MacDonald from the book and T.V. show from 20 years ago?”

There was a moment of silence on the other end of the line.  “I don’t know that he’s famous,” the woman said.  “But, yes, there was a book about 30 years ago.”

The caller was Jeffrey MacDonald’s current wife, Kathryn.  She had read my blog entries on Michael Malone and wanted to find out what else I might know.  She told me that Malone had also been involved in her husband’s case through an affidavit filed by the government during MacDonald’s appeal in 1990.  The affidavit played a key role in the court’s denial of the appeal.  And, as with Malone’s testimony in the Gates and other cases, the affidavit was later proven to have been false.

Malone had been, as it turns out, a one-man conviction machine before being transferred out of forensics in 1997, a man whose testimony played a key role in securing convictions for Donald Gates and a number of other defendants. He lied about having done tests and research he never conducted.  He got on the stand and testified to scientific conclusions completely unsupported by the facts. He was the “go-to” guy for prosecutors.  When other analysts refused to testify for the government, citing contrary or inconsistent results, prosecutors knew they could go to Malone for the testimony they were seeking. Malone could always be counted on to testify to whatever they needed him to say.

Jeffrey MacDonald (c) 1970

For those of you who are not familiar with the MacDonald case, the case made national news when, one early morning in February 1970, military personnel were called to the apartment of Jeffrey MacDonald and his family at Fort Bragg.  Upon arrival, response personnel found MacDonald unconscious and lying next to the body of his dead wife.  His two daughters were found brutally murdered in their bedrooms. MacDonald himself had been stabbed with a knife with enough force to puncture a lung. He was also suffering from head and other wounds.

MacDonald told investigators that he had stayed up late that night after his wife and daughters went to bed. He said he was sleeping on the couch in the living room when he heard his wife and children screaming.  He himself was attacked and knocked unconscious by two men, accompanied by another man and a woman wearing a blond wig under a floppy hat. He recalled the woman chanting “acid is groovy” and “kill the pigs.”  When MacDonald awoke, his wife and daughters were dead.

While the case made national news at the time, many people know about the case because of Fatal Vision, a book Joe McGinniss wrote about the case in 1983.  McGinniss claimed he believed in MacDonald’s innocence at the time he began research for the book.  He suggested he was initially enamored with the good-looking, all-American former Green Beret and doctor who had been unable to protect his family from the group of hippies who invaded the house that night.

McGinniss was granted complete access to MacDonald and his legal team during the time period prior to MacDonald’s trial in 1979, in fact becoming a formal member of the MacDonald defense team, and he reportedly shared living quarters with MacDonald during the trial.  While it is unclear exactly when McGinniss began to doubt MacDonald’s innocence, he certainly had no doubts as to MacDonald’s guilt at the time he completed the book.

McGinniss maintained in the book that he had trouble reconciling MacDonald’s account with the lack of evidence suggesting anyone else had been in the apartment that night. He couldn’t figure out why a strong and healthy Green Beret hadn’t been able to ward off the intruders and protect his family or why MacDonald had suffered only superficial injuries given the brutality with which the rest of his family had been murdered.  The saddest part of the book, if I recall it correctly, is the passage in which, according to McGinness’ account, MacDonald had already killed his wife and oldest daughter.  McGinniss is almost compassionate in describing how difficult it must have been for MacDonald to carry out the last act necessary to complete the triple homicide; that is, the killing of his two-year-old daughter Kristen.

The McGinniss book is still controversial in many respects. The relationship of a writer to his subject continues to be as relevant today as it was then. There were, for example, questions as to whether McGinnis lied about his true intentions to MacDonald in order to maintain the unfettered access to MacDonald that McGinniss enjoyed. Throughout the time period from trial to publication of the book, McGinniss maintained that his book “would tell the true story” and help MacDonald clear his name.  McGinniss also lived in MacDonald’s house during this time period, with home-cooked meals prepared by MacDonald’s mother. It is difficult to believe that McGinniss hadn’t begin to question MacDonald’s innocence well before this point.

More importantly, it is unclear to what extent McGinniss was reacting simply to the evidence that was available at the time and to what extent he was eager on writing a book that would sell. McGinniss later admitted that he had been pressured by his publisher to sharpen the manuscript (he eventually settled a lawsuit brought by MacDonald for $350,000), and he did end up with a compelling story.  I remember coming away from reading it with absolute certainty that MacDonald had killed his family.

Jeffrey MacDonald (c) 2008

Since Fatal Vision, a number of other people have looked at the same facts and arrived at a completely different conclusion.  In Fatal Justice from 1995, for example, Jerry Allen Potter and Fred Bost tell a different story.  It turns out that there was plenty of evidence supporting MacDonald’s account of that night, things that were never mentioned in the McGinniss book. Military policemen responding to the scene that night did in fact see a woman standing alone at 3:55 am in a wide, floppy-brimmed hat near the MacDonald apartment.  And a woman named Helena Stoeckley eventually came forward to confess that she had been in the apartment that morning and could name the murderers.  She said she had worn a blond wig, a floppy hat and boots, just as MacDonald described.  She also passed a lie detector test.

Fatal Justice also details a long and horrifying list of abuses committed by prosecutors, investigators, and judges in the MacDonald case. While the list is far too lengthy to describe in detail here, you are left with the conclusion that Malone’s false affidavit was just the tip of the iceberg.  The list includes multiple instances in which the prosecution failed to turn over exculpatory evidence in the government’s possession that would have confirmed large parts of MacDonald’s version of events that night.  Other evidence that implicated MacDonald and that was used at trial to convict him miraculously appeared many years after the initial investigation.

The point is, while I have no more ability to assess the accuracy of Fatal Justice than I had upon reading the McGinniss book more than thirty years ago, there was clearly much more to the story than McGinniss suggested.

On the phone a couple of weeks ago, Kathryn MacDonald tells me that she knows her husband is innocent.  She tells me this without prompting because I never could have asked.  She could never be married to him, she tells me, if she thought he might have done those things.

Kathryn MacDonald is about my age, but she is pretty and her voice is youthful.  She is so pleasant, so unassuming, so convinced of her husband’s innocence that I want very much to believe her.

But I really don’t know what to believe. The problem is, until the government can take the necessary steps to prevent abuses like the Michael P. Malone cases, we can never know what to believe.  Any confidence we might have had in the government’s ability to sort through these same facts and arrive at the right solution through the judicial system is completely belied by the government’s handling of the Michael P. Malone case.

Multiple prosecutors, both federal and state, called Michael Malone to the stand to testify for the government in numerous cases when they either knew or should have known that the testimony he was about to deliver was false. Multiple supervisors within Malone’s chain of command at the FBI refused to take corrective action when alerted to repeated instances of Malone’s perjury.  Malone was relieved of his forensic responsibilities in 1997 and retired in 1999, and while the government claims it is now investigating him and other analysts against whom similar accusations have been leveled, Malone has never, as far as I know, been disciplined or sued.  And, in many cases, Justice officials waited for years (13 years in the Donald Gates case) to notify defense counsel of the Malone abuses.

A couple of month ago, I suggested that the new forensic laboratory currently being built in the District of Columbia should be named after Donald E. Gates, the man who spent 28 years of his life in jail because of the false testimony of Michael P. Malone.  The idea, I argued, would be to remind every single person who worked in the lab upon arriving at work each day of the horrifying injustice that can occur when the public trust is abused.   At the very least, it should remind each person of what happened to Mr. Gates.  Pointing to the National Academy of Science recommendation on the need to preserve the independence of forensic labs, I also argued that D.C.’s new lab should be completely independent of the Metropolitan Police Department or any other law enforcement group operating within the District.

Failing this latter suggestion, you might as well name the facility after Michael P. Malone instead. The failure to ever hold Malone accountable for the injuries he inflicted on Donald Gates, Jeffrey MacDonald and others makes Malone the winner and all the rest of us the losers in this whole sordid mess. A government laboratory dedicated to Malone would be a fitting memorial to this legacy.

Note:  United States v. MacDonald is, after 40 years, under review by the Fourth Circuit on an actual innocence claim.

Sources:  Fatal Vision by Joe McGinniss, 1983;  Fatal Vision by Jerry Allen Potter & Fred Bost, 1995; Tainting Evidence:  Inside the Scandals at the FBI Crime Lab by John Kelly and Phillip Wearne, 1998.

As a public defender, I tried to visit the crime scene as often as possible.  Although I was never able to actually break a case by doing this, that is, find that piece of evidence that would exonerate the client, the visits always provided important information. At the very least, you get a feel for the scene.  Sometimes you see things that never would have occurred to you had you tried to simply imagine the scene in your head. And the knowledge you gain allows you to control the government’s witness on cross examination.  (The difference between the witness’ recollection of the scene and your own is that the witness was merely at the scene, presumably when a lot of other things were going on at the same time.  You were paying attention when you were there.)

People are usually pretty accommodating in allowing you to visit a particular crime scene, though I have to say I have been thrown out of one or two establishments. I think in particular of a nasty restaurant manager in South Philly. In addition, I will never forget the look of betrayal I once saw on the face of a kindly old woman who had escorted me around her church in a burglary case.  Although I had explained to her exactly who I was and what I was doing there, I’m not sure it quite dawned on her that I was the bad guy until she showed up on the day of trial and saw me standing at the bar of the court with the defendant.

But, with the heavy caseload at the PD’s office, it was impossible to visit the supposed crime scene all of the time, or even much of the time.  And that’s one of the advantages of private practice.  I can now visit every crime scene.

An investigator can do much of the leg work for you.  But, apart from the added expense for the client, even a very capable investigator cannot anticipate all of your trial needs.  And there is no substitute for being there yourself.

Yesterday I headed over to an apartment building with a client to investigate a particular incident that led to criminal charges. Mirriam Seddiq of Not Guilty No Way fame came along with us for the ride.

We sat down in the D.C. Superior Court cafeteria beforehand to map out our strategy. My client laid out the floor plan on a piece of paper. Our plan was to get in and out as quickly as possible. My client and I would walk through the front lobby to the freight elevator at the back of the building so that he could show me where everything supposedly happened. Mirriam would hang around casually, trying to glean information from the security guard at the reception desk.  We knew there were other people who had witnessed parts of the incident.  We wanted to find out who they were and what they had seen.  We were also hoping she could distract him.

Mirriam laughed when we suggested this part of the plan to her, but she agreed. Hey, Mirriam is a well-known “grizzly bear” when it comes to this type of thing. Accuse us of sexism if you want, but the client and I both thought a pretty and petite woman such as Mirriam would be much more successful in extracting the necessary information than an ugly, middle-aged man such as myself.

The plan didn’t work out quite the way we had intended. Two of the after-the-incident witnesses were standing outside of the building when we arrived, and Mirriam went ahead and started to do her thing.  What did they see?  Who else was there, etc.?

While she initially had them talking, they clammed up as soon as they saw the client and me in our suits, fresh from court, and our camera. You guys looked like you were here to buy the building, they said. Then they recognized the client. We could go into the lobby, they said, but there been a flood at the building that day, and we would need to speak to the apartment building manager for permission to go back to the freight elevator.

We waited until the two men went back into the building.  Then we went around to the loading dock at the side of the building to see what we could find. Mirriam and the client hung back while I went in search of another way into the back area. There, separated only by a locked door and a maintenance man rinsing down the loading dock, I came tantalizingly close to the freight elevator.  But no luck.  Although the maintenance man didn’t speak much English, it was pretty clear he was not going to let me pass.  It turns out he does know the words for “manager” and “permission.”

We were buzzed into the lobby of the building, and Mirriam and the client hung out there while I went in search of the manager. It turns out the manager was in a meeting, but his assistant told me she would be glad to have someone escort me there.  She walked me back to the lobby and directed the woman at the reception desk to call someone to take me.  But when she asked me for a card and I told her I was a lawyer, her demeanor changed completely.  No, she said.  I would need to talk to the building manager, and he would make me get a court order.

The manager was not available then, and he doesn’t return my calls.  Looks like I’ll be doing a court order.

Now that I know the layout, I will be able to go back to the building without the client.  I’ll lose the suit and Mirriam’s little pink camera. The visit may not add anything to my client’s defense.  Then again, I’ll never know until I see it for myself.

I have written a number of entries over the last couple of months about the case of Donald E. Gates, a man who was imprisoned for 27 years for a crime the evidence now shows he did not commit.  Gates was convicted in large part on the basis of false testimony by FBI analyst Michael P. Malone.

Donald Gates, as it turns out, is not the only person to have been wrongly convicted on the basis of Malone’s testimony.  In 2001, for example, the government notified the defense lawyers of Anthony E. Bragdon that Malone had testified falsely in the trial that led to Bragdon’s conviction for rape in 1992. Malone’s testimony on carpet fibers found on the victim’s clothing was the only scientific evidence linking Bragdon to the offense.

Ten years into Bragdon’s sentence, prosecutors disclosed to Bragdon’s lawyers that Malone had testified falsely as to other possible sources of fibers found on the victim’s clothing.  Malone had also failed to perform the necessary tests supporting his conclusion that the fibers found on the victim’s clothing probably came from Bragdon’s carpet.

Gates and Bragdon were eventually freed as the result of an FBI investigation in the 1990s that arose out of a whistleblower’s allegations questioning the tactics of Malone and 12 other FBI analysts. The AP has reported that despite the identification of over 3,000 suspect cases, only 150 defendants have been notified of problems.  And, as I have noted earlier, Gates was not released until December 2009.

In addition to the Gates and Bragdon cases, Malone testified in the John Hinckley, Bobby Joe Long, and Alcee Hastings cases.  Malone also played a key role, as I will describe in future entries, in the Jeffrey MacDonald case.

I have been fretting about the Donald E. Gates case since I first learned about it last December.  Yesterday I got a call from Sam Harahan, another person who has obviously been thinking about it quite a bit and who came across my blog entries on the case.  Harahan helped found two organizations that focus on law enforcement issues in D.C.:  the Council for Court Excellence and the D.C. Police Foundation.  Mr. Harahan wanted to make sure I was aware of the new forensic laboratory currently being built in D.C.

Scheduled for completion in the Fall of 2011, the Consolidated Forensic Laboratory (CFL) is currently under construction at 4^th and School Streets, SW.  When completed, the CFL will be a 287,000-square-foot new building that houses, all under one roof, the D.C. health laboratory, the chief medical examiner, and a crime laboratory.  As such, the CFL will “play a vital role in advancing and improving public safety support, homeland security and crime investigation capabilities.”

In my initial post on the Gates case, I cited the National Academy of Science recommendation on the need to preserve the scientific integrity and independence of forensic laboratories.  The problem, quite simply, is that laboratory technicians and analysts are mere mortals who can’t help being influenced by the interests of their employers. Putting them under the supervision of a law enforcement agency dedicated to criminal prosecution risks perpetuating the type of abuses that led to the Gates case. In addition, as with any conflict of interest situation, it creates the appearance of impropriety that could undermine public confidence in results.

Website materials on the CFL contain a very helpful list of frequently answered questions (FAQs) that address such issues as why we need such a facility and who will use it.  With respect to the crime lab, for example, the site notes that the Metropolitan Police Department (MPD) will conduct its forensic analysis of physical evidence, including tests related to DNA, trace evidence (hair, fibers, paints, blood), documents, firearms and tool marks, finger prints, and drugs.

What the FAQs do not address is who will be in charge of the crime lab.  If, as the site seems to suggest, the MPD will run the lab in addition to using it, our city will be spending well over $200 million for a state-of-the-art facility while missing an important opportunity to preserve the independence – and therefore quality – of current law enforcement efforts.

If there is anything positive to come out of the Donald Gates case, it should be that we take positive steps to prevent this type of thing from ever happening again.  It is too easy to stick our heads in the sand and believe that the Gates case was a one-time occurrence that resulted from a single bad apple within the FBI.  We have the data – over 100 other cases currently on review – proving to us that this just isn’t so.

It should not be too late to change any of this.  First, I believe that the crime lab should be run by a neutral entity, such as another organization within the city.  Second, I think the lab should be dedicated to and named after Mr. Gates.  The people who work in the lab should reminded every single morning when they go to work of the horrifying injustice that can occur when they abuse the public trust.  Naming the lab after Mr. Gates would also honor the amazing forgiveness he showed to the system that falsely imprisoned him for 28 years.

Photograph of Donald E. Gates by Wade Payne/Washington Post

Last week I posted an entry about Donald E. Gates and how he served 28 years in prison for a crime he didn’t commit.  Gates was convicted on the basis of false testimony by FBI agent Michael P. Malone that matched a hair found on the victim’s body with a hair sample taken from Gates.  According to the prosecution, Malone’s testimony was critical to Gates’ conviction.

The Washington Post reported today that U.S. Department of Justice officials were notified three different times about potential problems with Malone’s testimony in the Gates and other cases.  The first notification was in 1997.  And yet Justice officials never contacted Gates or his attorney.

The Office of Professional Responsibility at the Justice Department is now investigating. The Justice Department is also reviewing 100 other cases since the mid-1970s for potentially falsified and inaccurate tests by FBI analysts.

The Post reported earlier that Gates harbors no ill-feelings toward the Assistant U.S. Attorney who initially prosecuted him and who secured his conviction.  I wonder how he feels about the as yet unnamed Justice Department officials whose failure to fulfill basic ethical obligations could have prolonged his incarceration by as much as eleven years.

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.

This guy has his eye put out in an accident.  He can’t afford a glass eye, so the eye doctor puts in a fake eye made of wood instead. The guy is very self-conscious about his wood eye, but finally his friends talk him into joining them at a dance.  It is time, they say, for him to get back into circulation.

So the guy goes to the dance with his friends. He is standing around in the corner, feeling ashamed of the way he looks, when he notices a woman also standing around by herself.  The woman is attractive but she has these big floppy ears.  He thinks, hey, maybe she won’t mind dancing with me, so he gets up his courage and approaches her.

Excuse me, he says.  Would you like to dance with me?  She responds with great enthusiasm:  “Would I?”

“Wood eye?” he says back, greatly offended.   “Well, at least I don’t have floppy ears.”

I tell this joke for two reasons.  First of all, I tell it because I always look for an opportunity to tell a good joke, however lame some people may think it is.   But I also tell it to make a point about truly listening to what people are saying to you.  And this applies to the courtroom while you are cross-examining a witness.

A couple of weeks ago I was at the D.C. Superior Court with a client, sitting in the gallery waiting for our case to be called.  A group of Georgetown law students participating in a clinical were at the bar of the court, and one of the students was cross-examining the witness.  The student was nervous and had obviously spent a lot of time preparing her questions in advance.  When the witness finished answering one question, she would look down at her piece of paper and proceed to the next question, clearly asking it verbatim from her notes.

I can’t remember the substance of the testimony but I do know that at one point the witness made a very interesting remark that was clearly inconsistent with other things the witness had said.  The judge looked up.  In fact, everyone in the whole courtroom looked up, expecting the student to follow up.  Instead, the student looked down at her sheet of paper and proceeded to the next question.

Yes, cross-examination is difficult, and it takes a while to develop your skills and to get comfortable performing it.  However, no matter how carefully you have read any previous statements given by the witness and no matter how well you think you can anticipate how the witness will testify, witnesses will often surprise you with what they decide to say.

You need to be open to this. Just as the man with the wood eye should have been paying attention to what the floppy-eared woman was really saying to him, you need to listen. You need to be prepared to deviate from your planned areas of cross-examination to take advantage of any unexpected opportunities that may arise.