The following is from guest contributor Jon C. Hopwood.
This article was originally published in 2009 on Yahoo Voice and is reprinted here by permission of the author.
Summary: The testimony of Special Agent Michael P. Malone was instrumental in convicting Donald Eugene Gates of a rape-murder he did not commit. Gates was exonerated but scores of others convicted with Malone’s testimony are still in jail.
The testimony of Special Agent Michael P. Malone, an employee of the Federal Bureau of Investigation’s Crime Lab, was instrumental in convicting Donald Eugene Gates of a rape-murder he did not commit. After spending 27 years in prison, Gates was exonerated by a federal judge who denounced Malone and excoriated the Federal government for not revealing to him in a timely manner that Malone’s testimony amounted to perjury.
The Washington Post, in its lead editorial on Friday, December 18, 2009, lambasted the office of the U.S. Attorney for the District of Columbia for failing to report that it knew that Malone’s testimony was bogus. Donald Gates finally achieving justice, but scores of others convicted with Malone’s testimony are still in jail.
Donald Eugene Gates, a 58 year-old African American wrongfully convicted in 1982 of the rape-murder of Caucasian college coed Catherine Schilling, was exonerated by D.C. Superior Court Senior Judge Fred B. Ugast on December 18, 2009. Ugast, the judge who oversaw Gates’ original trial, had earlier freed him after a DNA test revealed that he could not be the man who killed Schilling.
Due to the improper conduct of the U.S. Attorney’s Office, which prosecuted the Gates case, Schilling’s rapist-killer remains free.
The prosecution of Gates was heavily dependent on the testimony of F.B.I. Crime Lab analyst Michael P. Malone, an F.B.I. agent, who testified that two hairs found on Schilling’s body came from an African American male. Schilling, a Georgetown University student, was murdered in 1981.
The Washington Post, in the lead editorial in its Friday edition that came out before Ugast exonerated Gates, quoted a statement Gates made at the time of his trial, 27 years ago: “I didn’t kill her. I never saw her. I am sorry she died, because her death has ruined my life.”
The Post editorial was entitled “Justice Delayed.”
According to the Post, Judge Ugast was “appalled” by the fact that Malone’s reliability as an expert has been discredited in 1997, but neither he or Gates’ defense lawyers had been informed. Ugast was extremely angry that, in January 2002, the prosecutors had been informed that Malone’s testimony in the Gates trial was bogus, yet they had done nothing about it.
Federal law mandates that the prosecutors should have revealed that the F.B.I. Crime Lab report conducted by Malone did not support his testimony at the trial.
A Victim of FBI Crime Lab Corruption
Donald Gates, who has always maintained that he was innocent of the crime, had been imprisoned for nearly 30 years until his release was ordered by Ugast earlier this week. Since the 1982 Gates trial, former F.B.I. Special Agent Michael P. Malone has become notorious as an unreliable and unethical expert witness who likely committed perjury in hundreds of trials, including the Jeffrey MacDonald trial.
Malone’s conduct was first exposed by famed F.B.I. whistleblower Dr. Frederic Whitehurst, who now heads the National Whistleblower Center’s Forensic Justice Project. Dr. Whitehurst first revealed the widespread corruption at the F.B.I. Crime Lab back in 1993, when he, too, was a Lab employee.
Whitehurst charged that Malone and other F.B.I. Crime Lab employees were not only manufacturing evidence to support prosecutors, but were engaged in providing perjured trial testimony. Malone had a profitable sideline as an expert witness whose testimony favored prosecutors.
A 1997 report from the Department of Justice’s Office of the Inspector General validated Whitehurst’s charges, and cited Malone as one of 14 F.B.I. Crime Lab that conducted inaccurate tests and made false reports. This is the report that Judge Ugast referred to when admonishing the U.S. Attorney’s Office for the District of Columbia, which should have informed him as the sentencing judge and Gates’ attorneys that the testimony used to convict him had been called into question.
In his allegations that subsequently were supported by the OIG report, Dr. Whitehurst revealed that Malone had perjured himself and falsified evidence when testifying during the impeachment proceedings against federal judge Alcee Hastings. Now a U.S. Representative from Florida’s 23rd Congressional District, Hastings’ impeachment — which was obtained with perjured testimony — was used by House Speaker Nancy Pelosi in denying him the chair of a major subcommittee that has oversight of the intelligence community.
A Perjurer’s Legacy
Facing Bureau discipline for his conduct in the Hastings case, Special Agent Michael P. Malone was allowed to retire from the F.B.I. and receive his pension. The Bureau apparently did not take any adverse action against him.
In contrast to the Bureau’s treatment of Malone, Fred Whitehurst — the man who blew the whistle on Crime Lab corruption and illegal activities by Lab employees — was harassed by the F.B.I. and the Department of Justice. Whitehurst’s wife, who also worked for the Bureau, was likewise victimized by the F.B.I.’s smear campaign against her husband.
In a classic case of the king killing the messenger bearing unwanted news, Dr. Whitehurst was driven from the F.B.I. After years of litigation, the government settled lawsuits targeting its unlawful conduct against Whitehurst for $1.46 million.
Speaking from the bench during the proceeding where he ordered that Donald Gates be released from jail, Judge Ugast termed the prosecution’s conduct in the Gates trial as “outrageous.” He demanded to know why it took the Office of the U.S. Attorney so long to investigate the use of phony evidence in the Gates case, in light of the knowledge that former Crime Lab analyst Malone has been revealed to be a serial perjurer who fabricated evidence.
Ugast ordered that all convictions in the District of Columbia that were obtained with testimony from Malone be reviewed.
A review of all the state and federal court convictions in which Michael P. Malone’s testimony was involved is long overdue. Fred Whitehurst first revealed Michael Malone’s malfeasance at the F.B.I. Crime Lab back in the early 1990s, and his charges were validated by the 1997 report by the Office of the Inspector General.
In the wake of the OIG report on F.B.I. Crime Lab corruption, the Department of Justice set up the Brady Task force to investigate all of the cases Malone and the other 13 lab examiners criticized in the report. The name of the task force refers to the Supreme Court case Brady v. Maryland, in which the High Court ruled that the prosecution must inform the sentencing judge and the defense when information such as Malone’s perjured testimony comes to light.
The Brady Task force was terminated in 2002. No report was ever issued, and Congress was never informed of its findings. However, the Department of Justice informed the D.C. U.S. Attorney’s Office as early as January 2004, according to Judge Ugast, of Malone’s bogus testimony. The OIG report condemning Malone dated back to 1997.
Thus, Donald Eugene Gates languished in prison for five if not 12 years more than he should have. The Washington Post editorial “Justice Delayed,” however, did not draw attention to the fact that scores of other prisoners have been condemned by Malone’s testimony, and hundreds if not thousands of convictions were obtained by the manufactured evidence and perjured testimony of Malone and other F.B.I. Crime Lab employees.
A Scoundrel Rewarded
Ironically, after he retired under threat of disciplinary action that never came, Michael P. Malone continued his relationship with the Bureau. As an F.B.I. contractor, Malone conducts security clearance background checks. Clearly, the Bureau intended to reward him for his falsification of evidence and perjury.
The message the F.B.I.’s continued employment of Malone sends to other wrong-doers in the Bureau and the national security establishment is unmistakable. It also sends a warning to those whistleblowers, like Sibel Edmonds, to think before they reveal corruption. The safety of the United States suffers as a result.
Associated Press: “DNA testing clears man who served 28 years”
Washington Examiner: “Man freed after 28 years in prison by DNA testing”
Washington Post: “DNA sets free D.C. man imprisoned in 1981 student slaying”
Washington Post: “Justice Delayed”
@2009, 2014 by Jon C. Hopwood. Used by permission of the author.