People charged with soliciting a prostitute in D.C. could be eligible to participate in a “diversion” (i.e., non-trial) program called the “John Diversion Program.” A person who decides to take advantage of this program pays a $300 fee and attends a one-day course on health and other risks associated with prostitution. In exchange for successful completion of these requirements, the government will drop the charges.

A person charged with solicitation of a prostitute should find out at his first court appearance whether or not he is eligible to participate in the program. (While the government does not specifically spell out the criteria for eligibility, it is generally available to first-time offenders.) Whether or not to participate in the diversion program is a decision the person will need to make in consultation with his lawyer. It will depend on the specific facts of the case.

A person who decides to participate in the program is directed to the Misdemeanor Unit Room 1305-B of the U.S. Attorney’s Office at 555 4th Street on any Tuesday or Thursday between the hours of 9:00 am and 12:00 pm. Bringing a check for $300 made out to Angels and Associates, Inc., the person can sign up for the one-day course, which is usually offered once-a-month on a Saturday. Clients who have taken the course have told me that they were pleasantly surprised at how interesting the course was.

If the person brings a certificate of completion to the next court date, the government will dismiss the charges. At this point, the person may want to consider filing a motion to have his arrest record “sealed.”

According to Section 22-2701.1 of the D.C. Crimes Code, “solicit for prostitution” means to invite, entice, offer, persuade, or agree to engage in prostitution or address for the purpose of inviting, enticing, offering, persuading, or agreeing to engage in prostitution.” The penalty for prostitution is a fine of $500 and/or not more than 90 days imprisonment for the first offense; a fine of $750 and/or up to 135 days imprisonment for a second offense; and a fine of $1000 and/or not more than 180 days for a third and each subsequent offense. The court may “suspend” the sentence (that is, order probation in lieu of incarceration) for a conviction of prostitution. It may also order the person to stay away from the area in which the offense occurred, submit to medical and mental health treatment or fulfill any other conditions the court may impose.

With thanks to Jonathan Turley of the Res Ipsa Loquitur Blog, here is a video of a Toronto woman apparently being arrested for assaulting a police officer with bubbles. If this had happened in Philadelphia (at least under the old regime), the woman would also have been charged with disorderly conduct, failure to disperse, and breaching the peace.

How great is it to live and blog in D.C.?  We get all the fun stories.

The Washington Post reported this morning on the arrest of Peruvian actress Q’orianka Kilcher earlier this month for chaining herself to the fence outside the White House.  Ms. Kilcher was using a visit to the White House by Peruvian President Alan Garcia to protest Peru’s development of indigenous lands for oil and minerals.

Ms. Kilcher covered herself with a blend of vegetable oil, black fingerprint and baby shampoo and then chained herself to the fence, with her arms linked together through a PVC pipe. The mixture looked so much like oil that a hazardous materials crew was called.  The slippery substance also made it more difficult for Park police to grab her.

The Huffington Post identifies the charge as disorderly conduct; the Washington Post says it was unlawful entry. I imagine she may also be asked to pay restitution for the hazmat team.

Ms. Kilcher is best known in this country for playing Pocahontas in the 2005 movie “The New World.” She is quoted in the Post as saying:  “I love film roles because I’m a person who doesn’t keep quiet about certain things.  But if my heart tells me something is wrong, I’m going to go and do something about it.”

Disorderly conduct is a really annoying charge.

The first problem is that the offense is usually so broad and poorly defined that it is too easy for police to charge and too easy for the government to prove at trial.  For example, since intent to cause a “public inconvenience” is a major element of the offense in Pennsylvania, the problem I had in Philadelphia was that any police activity, any gathering of curious onlookers as a result of this activity, and anything less than absolute compliance by the suspect with the officer instructions inevitably resulted in the inclusion of this offense in the list of charges against a client.

The second problem with the offense is that, while it is only a minor misdemeanor, an arrest on this charge often serves as the legal basis for more serious charges.  For example, once the police arrest the suspect for disorderly conduct, they are now legally entitled to search him for weapons and contraband.  This means that an arrest for disorderly conduct often leads to felony drug and firearms charges.

The good news in this city is that the D.C. Court of Appeals issued a decision last week, In Re T.L., in which it narrowed the scope of the offense in the District.  Specifically, it held that, in order to satisfy the “breach of peace” requirement under the statute, the government must prove either that (1) the defendant’s speech or conduct was likely to trigger violence or (2) it was “unreasonably loud and disruptive.”

In D.C., the government must prove two elements in order to secure a conviction for disorderly conduct.  The government must first prove specific intent; in this case, that the defendant acted with intent to provoke a “breach of the peace” or under circumstances such that a breach of peace might occur.  Second, the government must prove that the defendant either: (1) acted in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregated with others on a public street and refused to move on when ordered by the police; (3) shouted or made a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interfered with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of such person’s pocketbook or handbag; or (5) caused a disturbance on public transportation.

In the case at hand, the Court was faced with situation in which the defendant had been stopped on the street by a police officer who confiscated a large sum of cash from the defendant.  When the defendant objected, calling out loudly for his mother to come help him, the officer placed him under arrest for disorderly conduct.  Upon searching the defendant incident to arrest, the officer discovered 24 ziplock bags of crack cocaine hidden in the defendant’s pants and placed him under arrest for possession of cocaine with the intent to distribute.

In denying the defendant’s pretrial motion to suppress the evidence, the trial court reasoned that, because the defendant “continued to scream and shout and began drawing a crowd of people to come out from the neighborhood,” the officer had probable cause to arrest him for disorderly conduct.  The recovery of the cocaine was then legally valid under the “search incident to arrest” exception to the Fourth Amendment requirement for a warrant.

In overturning this decision, and in vacating both the misdemeanor and felony charges, the Court of Appeals spelled out two ways in which the government could have proven the “breach of peace” requirement.

The first way would have been to prove that the defendant’s speech or conduct was likely to trigger violence.  A police officer who has “objective reason to believe that violence is imminent need not stand by and await its outbreak before he attempts to control the situation with a disorderly conduct arrest.”  However, in this case, the Court held that the government failed to meet this burden:  “[T]hough T.L. loudly protested Officer Elliott’s seizure of his money (and called upon his mother for help), he did not urge the onlookers to intervene on his behalf or otherwise manifest an intent to provoke them to violence.  And while T.L.’s yelling may have annoyed the neighbors who were attracted to the commotion, there is no evidence they were hostile or likely to become violent.”

The second way would have been for the government to prove that the defendant’s speech was “unreasonably loud and disruptive.”  “The government has a substantial interest in protecting its citizens from unwelcome noise, an interest that is perhaps at its greatest when government seeks to protect the well-being, tranquility, and privacy of the home.”

Again, however, the Court held that the government had not met this requirement in the T.L. case.  It was the police officer’s wrongful conduct – the confiscation of the defendant’s money without cause to do so – that created the disturbance in the first place. And the defendant’s yelling lasted only a few minutes before he was arrested.  The Court therefore held that the defendant’s “loud but peaceful protestations and calls for his mother’s help in reaction to [the officer’s] unjustified seizure of his money were a response to an emergency situation and were not unreasonable under the circumstances.”

I am proud to say that the Spring 2010 issue of Ms. Magazine features my wife, Susan Burke, and her class action suit against the military on behalf of rape victims. Entitled “Culture of Rape” and now available on newsstands (but not online), the article cites a 2003 study by the Veteran Affairs Medical Center which estimates that at least one-third of all female veterans experienced rape or sexual assault during their service. Of my wife, the article includes the following:

Susan Burke wants to dramatically change this brutal, unjust state of affairs.

The Washington, D.C. attorney, who heads the firm Burke PLLC, is preparing to file a class-action lawsuit this summer to revamp how the U.S. military deals with sexual violence and assault committed by its personnel. The suit . . . will ask for damages as well as changes in the military’s practices. As Burke puts it, “You shouldn’t have to agree to be raped in order to sign up and serve your country.”

Burke already has a well-deserved reputation as a crusader against violence by the military and its contractors. She spearheaded a series of lawsuits in 2004 against private security forces who allegedly committed torture and abuse on behalf of the U.S. military in Iraq’s notorious Abu Ghraib prison. Later, she sued the infamous Blackwater firm on behalf of Iraqis killed and wounded in two allegedly unprovoked 2007 attacks on civilians in Baghdad. (The Blackwater suits were settled for a confidential amount; the Abu Ghraib ones are pending.)

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.

My client is in town on a business trip.  He goes out to dinner with some colleagues and, even though he is not accustomed to alcohol, he has a few drinks. The next thing he remembers is waking up in a jail cell.  After being charged with unlawful entry and released from custody, my client returns home to the Middle East.  When he first contacts me, he still has no idea what happened.

I get a copy of the police report, which alleges that my client went into the public area of an establishment and was “disruptive.”  The manager asked him to leave.  When he refused, the police came and arrested him.

If true, the allegations make out the criminal offense of unlawful entry in D.C.. Burglary is the entering of a building or dwelling with the intent to commit a crime.  Unlawful entry encompasses just about every other form of trespass, including remaining within a property “without lawful authority” and against the will of the lawful occupant.  Unlike burglary, which is a felony, unlawful entry is a misdemeanor punishable by a maximum fine of $1000 and up to 180 days of imprisonment.

Assuming the government decides to proceed with the prosecution, a first-time offender such as my client should be able to qualify for a diversion program or, at worst, a deferred sentencing agreement.  In other words, if he can complete a set of agreed upon conditions – in this case, possibly restitution, a fine, some community service and an alcohol awareness programs – he should be able to come out of the whole unfortunate incident without a conviction on his record.

My client’s greatest concern at this point, however, is not a conviction.  It is avoiding a bench warrant.  A bench warrant is a court order directing that the subject of the warrant be arrested and brought back before the court.  It is typically issued for contempt, after issuance of an indictment, for disobeying a subpoena, or for failing to appear for a hearing or trial.

The problem is, my client has another court date in a week.  But he is back in his home country in the Middle East and won’t be able to get a visa to return to the U.S. for many months if at all.  It takes 6 weeks just to get an appointment at the U.S. Embassy.  Processing of the visa takes even longer, and that’s assuming the visa is eventually approved for someone with an open criminal charge.

The judge allowed me to accept service for the client at the first listing yesterday but she was reluctant to do this (“Where is your client?  Why isn’t he here?”) and she is completely unsympathetic to his dilemma. She provides me with just an extra week to try to work things out.  If I can’t, she will issue a bench warrant for his arrest for failing to appear.

The State Department is a nightmare. I go through one list of menu options after another. When I am finally able to secure a live voice on the line, I am shuttled back and forth between multiple offices until I end up back at the beginning of the menu options.

The U.S. consulate office in my client’s home country is no more help.  I get a return email informing me that they will not be able to answer my questions without knowing my client’s full name and passport number.

While my client sits at home fretting, I wait for the government to assign a prosecutor to handle his case.  At least there will be someone in a position of authority at that point for me to talk to.  And I am cautiously optimistic.  I have found the overwhelming majority of prosecutors here in D.C. to be fair and open-minded individuals.  I am thinking a prosecutor will look at the facts of this case and see it roughly the same way that I do.

Yes, assuming the allegations contained in the police report are true, the government should be able to make out the elements of unlawful entry. But this is not a felony. No one was hurt, just inconvenienced. My client is in his thirties and has never been arrested before.  Having spent the night in prison and forking out mega-bucks to hire me, he has already been punished whether or not he actually committed any crime.  It will cost him thousands of dollars more to fly back to the U.S. to fight these charges. My client has a Ph.D from a university in the West, and he has studied in the U.S.  His job requires him to come to the U.S.  If he is unable to do so, he will lose his job.

My client would like to come back to the U.S. to face the charges.  Alternatively, he might decide to apologize to the court, to the police, and to the owners of the establishment he allegedly inconvenienced. But he can’t do any of this if he is not allowed back into the country.  .

For the time being, my client and I sit and wait.  Our only hope is that the prosecutor will see things the same way we do.

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.