WASHINGTON – A discredited ex-FBI agent whose “unreliable” testimony helped put away defendants later found innocent was hired back by the agency as a private contractor years after his misdeeds were uncovered, The Post has learned.
Michael Malone, a former forensics expert specializing in hair and fiber analysis, retired from the FBI in 1999 — two years after a 1997 inspector general’s report found he had testified falsely in an important criminal case.
But in its third review of bungling at FBI labs, the Justice Department’s Inspector General found that Malone had been performing background check investigations for the FBI as an “active contract employee of the FBI” since 2002.
In fact, he was still indirectly on the FBI payroll two months ago, as the IG wrapped up its report on “scientifically unsupportable analysis and overstated testimony by FBI Lab examiners” in a long series of criminal prosecutions.
After the IG raised the issue with the FBI, the agency reported back that Malone’s “association with the FBI was terminated” as of June 17.
Justice Department and FBI officials didn’t answer questions from The Post about how many background checks Malone performed or why he was re-hired.
Although he was never disciplined and got to retire with a pension, Malone’s criminal forensics work has come under heavy scrutiny by investigators – including his involvement in a case that sent former DC resident Donald Gates to prison for 28 years for a murder he didn’t commit.
“Malone’s faulty analysis and scientifically unsupportable testimony contributed to the conviction of an innocent defendant” and at least five other convictions that were later reversed, the IG wrote in its report, released last week.
Malone testified at trial that one of Gates’ hairs scientifically matched one found on the body of Georgetown University student Catherine Schilling, 21. DNA evidence later proved him to be wrong.
His testimony before a judicial inquiry of Florida federal Judge Alcee Hastings was also found to be off base. Malone testified that he conducted a “tensile” test on a piece of evidence – a purse strap. It was later revealed he didn’t do the test.
Independent scientists found 96 percent of Malone’s caseload to be “problematic” for reasons such as making statements that “had no scientific basis.” Contrary to normal standards, Malone produced lab notes that were “in pencil and not dated.”
The prior IG investigation found Malone testified “outside his expertise and inaccurately” and cited him for misconduct.
Malone denied any wrongdoing.
“The whole time I was in the lab I got nothing but exceptional and superior ratings,” Malone told the St. Petersburg Times in 2001. “This is going to sound like bragging, but we were the best in the world for hairs.”
Attempts to contact him last week were unsuccessful.
“It’s absolutely unbelievable considering what the FBI knows about this individual that he’s been allowed to continue as an FBI contractor,” whistleblower Fred Whitehurst, a former top FBI explosives expert, told The Post.
Early on, the FBI appears not to have considered looking into more systemic problems in its hair and fibers unit. Investigators uncovered a 2002 memo from DOJ’s criminal division to Michael Chertoff, then assistant attorney general, raising concerns about “the specter that the other examiners in the [Hairs and Fibers] unit were either as sloppy as Malone or were not adequately conducting confirmations [of his work]. This issue has been raised with the FBI but not resolved to date.”
A footnote in the report states that the agency “did not produce” a response to investigators’ request for old FBI manuals. But investigators “located on the Internet” an FBI manual from 1977, the report notes.
The Justice Department, in its formal response to the inquiry, wrote that Justice and the FBI in 2012 “initiated a comprehensive review of microscopic hair comparison analysis or testimony provided in more than 20,000 cases prior to December 31, 2009,” when DNA testing became routine.
The purpose, it stated was to make sure testimony “properly reflected the bounds of science, and that no person is or has been deprived of a fair trial based on flawed analysis or testimony.”
The Justice Department said it was looking at testimony of “all FBI hair comparison examiners” who found positive associations between hair in evidence and a known hair sample.