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Prosecutor stands up for justice

In print: Tuesday, December 16, 2008

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Christmas will come a little early for Jimmy Ates. On Wednesday, it is expected that his murder conviction for shooting and killing his wife in the couple's Okaloosa County home will be set aside thanks to an acknowledgement by Gainesville prosecutor Geoffrey Fleck that the evidence used to convict Ates was deeply flawed. Fleck is to be congratulated. He is the first prosecutor in the nation to ask for a murder conviction to be vacated due to faulty bullet-lead analysis testimony, and his actions should inspire other prosecutors to do the same.

High school teacher Ates was convicted in 1998. In powerful forensic testimony, an FBI expert said at trial that the bullets that killed Ates' wife came from a box owned by him. The problem is that there was no valid science to back up the statement.

This kind of comparable bullet-lead analysis has been wholly discredited. But for decades before the FBI abandoned its use in 2005, the agency dispatched experts to claim that a crime-scene bullet or bullet fragment could be traced back to other bullets owned by the defendant.

It is estimated that as many as 2,500 cases have been compromised to one degree or another, but according to the Innocence Project of Florida, the FBI has completed fewer than 100 full reviews to determine whether convictions should be revisited.

Ates is one of those. In late May, prosecutor Fleck, who was not the original prosecutor in the case, received a letter retracting the FBI expert's testimony at Ates' trial. This, combined with the fact that police investigators kept from Ates evidence of a suspicious, unidentified fingerprint found in his home, led Fleck to ask a judge in Okaloosa County that Ates' conviction be set aside.

Another case that may be deserving of reconsideration involves a 1983 St. Petersburg murder of a cab driver. The main forensic evidence against defendant Derrick Smith, now on death row, was testimony by an FBI lab director matching a bullet fragment from the victim to a box of bullets at Smith's uncle's house. So far Smith has not been able to win a new trial.

While the FBI continues its survey of cases where bullet-lead analysis was used, Florida's prosecutors should initiate their own reviews of cases in which such testimony was material to a conviction. As difficult as it is to do, they should take a cue from Fleck and look to un-do wrongful convictions. Justice demands it.