[url=apnews1.iwon.com/article/20030528/D7RA54C00.html]Conviction Tossed on FBI Lab Misconduct[/url]

May 28, 2:07 AM (ET)

By JOHN SOLOMON


WASHINGTON (AP) - Three years before FBI scientific expert Michael Malone helped put a young man behind bars wrongfully, FBI superiors were alerted that Malone may have given false testimony in an earlier case that led to the rare impeachment of a federal judge, documents show.

The warning about Malone in 1989 was not heeded and the FBI hair and fiber expert was permitted to continue as a key prosecution witness for several more years, including in the 1992 rape case against Anthony E. Bragdon. The government now concedes Malone gave false testimony and withheld evidence in that case.

The government rectified its misdeed against Bragdon just a few weeks ago. It informed the District of Columbia Superior Court in April it did not plan to retry Bragdon after the judge threw out his conviction.

It was the first overturned conviction to result from problems inside the FBI's renowned crime lab that date to the mid-1990s. But for Bragdon, it was too late. He already had spent 10 years in prison and was on parole when he got the news.

"I did all that time. That is a major part of my life," Bragdon said in a telephone interview Tuesday. "When I went to prison I was just 19. This was my first adult conviction. I had never been locked up. ... So they never gave me a chance to establish myself in the real world as far as getting a job."

Despite the 1989 memo to FBI superiors, and a subsequent 1997 internal investigation that recommended discipline against Malone, the FBI permitted him to retire in December 1999 with a pension and no discipline.

It wasn't until 2001 that the government finally alerted Bragdon's lawyers to the problems. According to court records reviewed by The Associated Press, Malone had testified at the 1992 trial that carpet fibers he found on a woman's clothing linked her to Bragdon's apartment. It was the only scientific evidence corroborating the victim's allegation she had been raped, according to court records.

Jurors ultimately settled on a lesser charge of assault with intent to rape and use of a firearm in a violent crime. Bragdon was sentenced to 30 years in prison.

In 2001 the government divulged to Bragdon's lawyers that Malone:

_Testified falsely as to the absence of other possible sources of the fibers found on the victim's clothing, wrongly telling the jury that only carpet fibers exist in a trilobal form when there are in fact several other such sources.

_Failed to disclose the existence of other, nonmatching fibers recovered from the victim's clothing.

_Failed to performed the necessary tests to support his conclusions that the fibers found on the victim's clothing probably came from Bragdon's carpet.

Malone has an unlisted phone number in southern Virginia and could not be located for comment Tuesday. In a 2001 interview with the St. Petersburg Times, Malone was quoted as saying: "Nobody's convinced anybody in a black robe that I've done anything wrong. I did the best I could. Crime labs aren't perfect. People aren't perfect."

The FBI said as a result of the internal review of the lab in the mid-1990s, Malone was moved from his job in the hair and fiber analysis section and sent back to field work until his retirement.

FBI officials said the lab is a much different place today after changes that earned it its first scientific accreditation and the creation of safeguards against future abuses. "We complied fully with the inspector general investigation in 1997, implementing all of the recommendations and then some," spokesman Paul Bresson said Tuesday.

But Frederic Whitehurst, the FBI whistleblower whose allegations brought attention to the lab's problems, said the delay of four years from the end of the internal investigation until Bragdon was notified was "appalling."

"It takes so long because everybody is covering for everybody else in the government. They wait until everyone retires and gets their pension," he said.

Internal FBI memos obtained by AP show that FBI lab colleague William Tobin informed his superiors in 1989 - three years before the Bragdon case - that he had reviewed Malone's testimony during the 1980s bribery case against then-federal judge Alcee Hastings and found widespread problems.

Tobin wrote that Malone had provided "scientifically unfounded, unqualified and biased testimony" in Hastings' trial and questioned whether the information had been withheld from Congress when it impeached Hastings as a judge. Hastings has since revived his career and won a seat in Congress.

Tobin wrote at the time he was bringing the information to the attention of FBI superiors because the problems might cause "serious conflict and substantial embarrassment to the bureau."

The 1997 review of the FBI lab concurred with Tobin's assessment that Malone had given false testimony in the Hastings case but the Justice Department said the case was too stale to warrant discipline.

AP reported in March of this year that a review had identified about 3,000 cases that could have been affected by shoddy work at the FBI lab but only about 150 defendants had been notified of problems.

That same month, the judge overturned Bragdon's conviction.

The judge in the case, Stephanie Duncan-Peters, said, "If the jurors had known that Mr. Malone testified falsely ... the outcome of the trial reasonably could have been different."