SECTION E: AVIANCA BOMBING

 

I. Introduction

 

On November 27, 1989, Avianca Airlines Flight 203, originating from Bogota, Colombia, exploded shortly after take-off, killing the 107 persons on board including two Americans. SSA Richard Hahn was assigned to this case as part of a team of representatives from the United States. Hahn collected evidence at the crime scene, examined evidence, and prepared a final report. Dandeny Munoz-Mascara (Munoz) was indicted for causing the explosion and in 1994 was tried twice in the Eastern District of New York. The first trial resulted in a mistrial; he was convicted in the second trial. Hahn testified as an explosives expert in both trials.

 

Whitehurst alleges that in the trials Hahn, among other things, fabricated evidence, committed perjury, and testified outside his area of expertise. Whitehurst's principal allegations concern Hahn's testimony about (1) the type of explosive that caused the crash, (2) Whitehurst's scientific results, and (3) the fire and secondary explosion that followed the initial blast.

 

To investigate Whitehurst's claims, we reviewed the pertinent Laboratory reports and, where available, the underlying work papers and test results. We reviewed transcripts of the testimony of Hahn and the closing arguments made by the prosecutor in both trials. We also questioned agents Hahn and Whitehurst and their former unit chiefs, J. Christopher Ronay and James Corby. Finally, we also interviewed others involved in the case, including Edward Bender, James Kearney, Donald Thompson, Dwight Dennett, former Assistant United States Attorneys (AUSAs) Cheryl Pollak and Beth Wilkinson (who jointly tried the Munoz case twice), and DEA agent Sam Trotman.

 

We conclude that Hahn did not commit perjury or fabricate evidence. We further conclude, however, that Hahn gave testimony that was, in part, either scientifically unsound or beyond his expertise. We also conclude that Kearney erred when he failed to resolve a dispute between Hahn and Whitehurst; the result was that Hahn gave incomplete testimony regarding Whitehurst's scientific results. Finally, we conclude that Whitehurst sent a scientifically flawed memorandum to the prosecutor during the first trial and committed other errors in the case.

 

The following section (Section II) summarizes the factual background to the allegations. Section III analyzes the issues relating to Hahn's testimony (Section A) and Whitehurst's conduct (Section B). We state our conclusions in Section IV.

 

II. Factual Background

 

A. The Crime Scene

 

On November 29, 1989, Hahn arrived in Colombia to investigate the crash. While there, he met with and discussed the aircraft explosion with experts from the Federal Aviation Administration (FAA) and the National Transportation Safety Board (NTSB). He and other experts in various fields examined the crime scene, collected evidence, attempted to reconstruct the aircraft, and formed theories as to what happened.

 

After days of investigation, Hahn and the FAA representatives concluded as follows: A small explosive device functioned on the aircraft beneath a seat over the wing. This explosion breached certain portions of the aircraft and caused a fire and a second explosion described as a fuel-air explosion, which blew the aircraft apart and sent it to the ground in pieces.

 

On December 6, 1989, while Hahn was still in Colombia investigating the Avianca crash, a Colombian government building (the DAS Building) was bombed. Later that day Hahn went to the scene of the DAS explosion to offer his assistance. He examined the damage there and took soil samples in which no explosives residues were found.

 

B. The Laboratory Analysis

 

Hahn sent samples of evidence from the Avianca crime scene to the FBI Laboratory. Once the samples arrived, an EU technician catalogued the evidence and sent it to various units in the Laboratory for examination. Whitehurst, as an examiner in the MAU, was asked to examine various items for explosives residues. Edward Bender, the technician then assigned to Whitehurst, received and analyzed this evidence. As was customary in the Laboratory, Bender ran the instrumental analysis and reported the results to Whitehurst. Whitehurst's role as an examiner was to review and draw conclusions from the data provided by the technician.

In January 1990 Whitehurst identified RDX and PETN high explosives on a specimen from a portion of the aircraft. He wrote a report (dictation), which was approved by MAU Chief James Corby and was sent to Hahn who included it verbatim in one of his two reports. In his other report Hahn noted that a portion of the aircraft skin bore pitting and cratering unique to high explosives. Hahn concluded that an explosive device with a relatively small amount of high explosives functioned on board the aircraft, causing a breach of the fuselage and other parts of the aircraft, a fire, and a fuel-air explosion that caused the aircraft to break apart.

 

C. The Confessor

 

In the spring of 1994, on the eve of the first Munoz trial, the Attorney General of Colombia wrote a letter to the District Court Judge in the case and stated that the wrong person was charged in the Avianca case and that the responsible person was in custody in Colombia and had confessed to the crime. In interviews by an ATF agent in Colombia, the Confessor stated, among other things, that he was responsible for making the bomb that destroyed Avianca Flight 203 and that the explosive consisted of 5 kilograms of an ammonium based gelatin dynamite. The Confessor claimed that this dynamite was the same explosive used at the DAS Building.

 

The Munoz prosecutor sought Hahn's advice regarding this development. According to a memorandum Hahn wrote in 1995, he advised the prosecutor [in 1994] that neither was the damage to the aircraft consistent with dynamite, based on the pitting and cratering that was present on the fuselage, nor was the damage consistent with the functioning of a single dynamite device of five kilos in size. Hahn added that his opinion was supported by the finding of residues RDX and PETN and the lack of residues consistent with a dynamite.

 

On June 4, 1994, Hahn telephoned Whitehurst to tell him that he (Whitehurst) might be called as a witness to rebut the claims of the Confessor, which Hahn described. According to Whitehurst, Hahn asked whether Whitehurst could discredit the Confessor's story based on the residue analysis. According to Hahn, he asked Whitehurst, [C]an you say, from your material analysis, whether or not this might have been an ammonia gel dynamite or not.

 

During the June 4, 1994, conversation, Hahn told Whitehurst that Hahn believed the pitting and cratering on the evidence was indicative of an explosive with a VOD of 20,000 feet per second. Whitehurst responded that there are ammonia-gel dynamites capable of detonation velocities of approximately 20,000 feet per second and that therefore the damage may have been possible from such a dynamite. Hahn dismissed Whitehurst's views because Whitehurst was not at the crime scene or aircraft reconstruction and because explosives damage assessment is outside Whitehurst's expertise. Hahn did not ask Whitehurst to prepare any documents regarding his analysis of the Confessor's statement. On June 6th Hahn faxed Whitehurst a copy of one of the Confes sor's statements.

 

D. The Whitehurst Memorandum

 

On June 7, 1994, Whitehurst prepared a memorandum to Corby (the Whitehurst Memorandum) relating to whether the FBI could scientifically disprove the Confessor's story. The following day Whitehurst delivered to Corby the memorandum with technical papers that Whitehurst claimed supported his views. Whitehurst stated in the memorandum that he could not disprove the use of an ammonium gel dynamite and that in fact the data is consistent with the use of an ammonium nitrate based high explosive. The memorandum asserted that the pitting and cratering did not rule out the use of a gelatin dynamite, citing the attached literature. Whitehurst also raised questions concerning possible contamination that would affect the significance of his previous findings of PETN and RDX.

 

Corby reviewed the memorandum overnight, and on June 9, 1994, according to Whitehurst, Corby told him to quickly provide Whitehurst's assessment to the prosecutor. Corby stated that he did not authorize Whitehurst to send the memorandum itself directly to the prosecutor, only to provide the information in the memorandum to the prosecutor. On June 9, 1994, Whitehurst gave the memorandum to an agent on the case (Dwight Dennett) to give to the prosecutor. Dennett delivered the document as promised. Whitehurst did not send a copy of the memorandum to Hahn or discuss this memorandum with him prior to sending it to the prosecutor.

 

On June 14, 1994, Whitehurst received a note from Corby stating that AUSA Pollak wanted to talk to him. Whitehurst called Pollak, who was angry. They discussed the memorandum. According to Whitehurst, Pollak explained the concept of Brady material and told Whitehurst that now she would have to turn the information over to the defense. At about the same time, Pollak also told Hahn that she would have to disclose the memorandum to the defense under Brady. Although Hahn later assumed the Whitehurst Memorandum was disclosed to the defense, it is unclear whether in fact disclosure was made. The prosecutors did not contact Whitehurst further regarding this case.

 

E. The Trials

 

Hahn testified in the first Munoz trial on June 7, 1994. This was two days before Whitehurst gave his memorandum to Dennett, and thus Hahn did not have the memorandum when he testified. Among other things, Hahn testified to his opinion as to how the initial and secondary explosions occurred on the aircraft and related the conclusions regarding RDX and PETN as set forth in Whitehurst's dictation. Hahn also gave testimony that tended to contradict the Confessor's story by asserting that the damage to the aircraft indicated the use of a fast-moving explosive like RDX or PETN while the damage to the DAS Building indicated a slower-moving explosive like dynamite.

 

On June 14, 1994, Hahn received a copy of the Whitehurst Memorandum from Pollak. He then sent a copy to his former unit chief, J. Christopher Ronay, and discussed the matter with him. Between the two trials, SAS Chief James Kearney, MAU Chief Corby, and Ronay addressed the issues raised by Whitehurst's Memorandum but made no communication to Hahn regarding any resolution of the controversy. Hahn, therefore, proceeded to the second trial with no guidance from management about how to testify in light of the views expressed in the Whitehurst Memorandum.

 

On November 22, 1994, during the second trial, Hahn repeated essentially the same testimony he gave in the first trial. No mention was made of any of the opinions discussed in the Whitehurst Memorandum.

III. Analysis

 

A. Hahn's Testimony

 

1. Contradiction of Confessor, Pitting and Cratering

 

In both trials Hahn opined that the pitting and cratering on the fuselage of the aircraft was caused by an extremely or very high explosive but that the DAS Building was damaged by a slower-moving explosive such as dynamite. This testimony contradicted the Confessor's story that the same explosive--a dynamite--was used at the DAS Building and on the aircraft. We conclude that Hahn's opinions correlating the pitting and cratering to a high velocity explosive were unsound and not justified by his experience or by the scientific literature. Although a high velocity explosive may have been used on the aircraft, Hahn's opinions at the trials regarding pitting and cratering were flawed.

 

a. Trial Testimony

 

In the first trial, Hahn testified that an extremely high explosive caused the pitting and cratering on the aircraft, that RDX and PETN are explosives in that category, that no dynamite could have caused that damage, and that the damage at the DAS Building was indicative of a heaving explosive such as dynamite and not a brisant explosive like RDX or PETN. Hahn further testified that by extremely high explosive he meant the ones that do travel at 22, 24 thousand feet per second. Hahn was certain that this testimony contrasting dynamite with RDX and PETN was elicited to anticipate and contradict the Confessor's story should it be introduced by the defense. A defense based on the Confessor, however, was not interposed in either trial.

 

In the second trial Hahn testified that the pitting and cratering on the fuselage was caused by a very high explosive here functioning in the area of 20,000 feet per second. Regarding the damage at the DAS Building, he testified:

 

It indicated to me that again the explosive that was used here, unlike the explosive device or an explosive that would cause pitting and cratering, this was a much slower moving explosive. This was going to be like a dynamite or ammonia-base type nitrate explosive that would have a long period heaving effect, if you will.

 

b. Validity of Hahn's Correlation of the Pitting to a VOD Range

 

In the first trial, Hahn testified that no dynamite could have caused the pitting and cratering on the aircraft. This testimony was clearly erroneous even under Hahn's own theories, since Hahn firmly maintains that the pitting was caused by an explosive with a VOD of about 20,000 feet per second and he testified at the first trial and the OIG interviews that some dynamites have a VOD in that range.

Taken literally, Hahn's testimony in the second trial indicated that he believed the phenomenon of pitting and cratering can only occur with a very high explosive --that is, an explosive with a VOD of about 20,000 feet per second or more. This is implied from his testimony that the damage at the DAS Building was indicative of an explosive such as a dynamite rather than an explosive that would cause pitting and cratering. Hahn told us in his first interview that at the time of the Munoz trials he had only experienced pitting and cratering with explosives having a VOD of at least 20,000 feet per second and believed that pitting and cratering would only occur with such explosives. Hahn's experience, however, was , at best, incomplete. In fact, pitting and cratering can be achieved with some high explosives with a VOD as low as 10,000 feet per second. Most dynamites have a VOD in excess of 10,000 feet per second.

 

In a letter after his first OIG interview and in a second interview, Hahn insisted that his testimony should not be taken literally. He maintained that when he said the explosive at the DAS Building was not the type of explosive that would cause pitting and cratering, he meant it was not the type of explosive that would cause the distinctive pitting and cratering on the Avianca aircraft. The pits on the aircraft had diameters of about one-eighth to one-quarter inch. By contrast, the pitting and cratering discussed in the articles attached to the Whitehurst Memorandum contained much smaller pits (.1 to .5 millimeters). To Hahn the size of the pits on the Avianca aircraft indicated a VOD of about 20,000 feet per second or more. Hahn insisted that it was this type of pitting and cratering ( the large pits ) that he was referring to in his tria l testimony.

 

Hahn believed that large pits, as in the Avianca case, are indicative of a VOD of about 20,000 feet per second or more because he had never seen pitting of that size or anything closely resembling that except with explosives in the range of 20,000 ft/second detonation velocity. Hahn has seen such pitting in his tests of shaped charges at the FBI range. In these tests Hahn used explosives with a VOD of at least 20,000 feet per second. Hahn theorized that the pitting on the Avianca aircraft was caused by jetting resulting from a deformation on the explosive's surface that was, in effect, a small shaped charge. See also Hahn OIG Interview: I speculated far enough to sa y, there had to be some imperfection in this explosive charge to cause this shape, to form this jet.

 

Hahn admitted, however, that in his tests with shaped charges at the range he had never seen such pitting at all except when he was trying to deliberately achieve that effect with a shaped charge that was lined (e.g., with an old vehicle headlight) and that he had never experimented with shaped explosives with a VOD less than 20,000 feet per second. Based on this experience, therefore, Hahn was unqualified to say whether it was the shaping, the fragmentation from the lining, or the high velocity, or some combination of these elements, that was necessary to produce the large pits.

 

Moreover, the pitting here was found on aircraft aluminum, and Hahn had no experience using aircraft aluminum as a target material with any type of explosive. Hahn acknowledged that pitting would occur more readily on aircraft aluminum than on steel, which Hahn used in his tests.

 

Hahn assumed that the perpetrators of the Avianca blast did not take the time to create an intentionally shaped charge. Hahn's tests at the FBI range, in which he obtained pitting similar to Avianca's, involved lined, intentionally shaped charges and targets of steel, which had little connection to the scenario he posited in the Avianca case--an explosive not intentionally shaped with a target of aircraft aluminum.

 

Hahn theorized that the jetting that caused the large pits on the aircraft came from random imperfections at the surface of the explosive. Hahn acknowledged, however, that he has no experience, documentation, or anything that validates the proposition that such pits can be created from accidental imperfections on the explosive.

 

Additionally, Hahn admitted at one point in the OIG interviews that the pitting and cratering in this case is merely consistent with an explosive with a VOD of at least 20,000 feet per second. He stated that, because we don't have the experimental data, he cannot exclu[de] other explosives.

 

Accordingly, for all these reasons, we conclude that Hahn's experience was inadequate to support his opinion that the large pits found on the aircraft aluminum in this case were necessarily caused by an extremely or very high explosive with a VOD of at least 20,000 feet per second.

 

Hahn's correlation of the pitting to a VOD range was not based on his experience but was a speculative extrapolation from his experience. This speculation was based on Hahn's understanding of the science of pitting and cratering (his jetting theory). Hahn admitted, however, that the science of pitting and cratering is beyond his expertise: I'm not qualified to talk to you about exactly how this process functions. I'm not even sure that the scientific community knows exactly what goes on here, to be honest with you. Hahn was qualified to render opinions based only on his experience, which did not justify his attempt to correlate the pitting with the VOD of the e xplosive.

 

Hahn asserted that he relied on his jetting theory because I don't know how else you would get that damage. That Hahn could conceive of no other theory, however, did not make his jetting theory valid.

 

Finally, Hahn's recent involvement in the Oklahoma City case has broadened his experience. The pitting in that case is similar in size to the pitting in the Avianca case, although the VOD of the explosive in Oklahoma City, according to Hahn, is significantly below 20,000 feet per second. Given the Oklahoma City case, Hahn acknowledged that big pits can be obtained from an explosive with a VOD substantially less than 20,000 feet per second. Based on the Oklahoma City case and our own experience, we conclude that there is no scientific basis for correlating large pits, as in the Avianca and Oklahoma City cases, with a VOD of about 20,000 feet per second or more.

c. Other Theories in Support of Hahn's VOD Opinion

 

Hahn also told us that his opinion that the explosive had a VOD of at least 20,000 feet per second rested on two factors in addition to the pitting and cratering: (1) the shattering of an I-beam on the aircraft showing that the explosive was very brisant and (2) the short amount of time the gas jet would have had to cause the pitting before the explosive shock wave and the depressurization of the cabin pushed the fuselage away. This explanation is problematic for three reasons. First, Hahn's VOD opinions at the trials only relied on the pitting and cratering. Second, the evidence that the I-beam in fact was shattered by the explosive is weak. All that one can say with certainty is that a porti on of the I-beam, like many other portions of the aircraft, was missing. Hahn made no scientific comparison between (1) the ends of the I-beam that were adjacent to the missing piece and (2) the ends of other items adjacent to missing pieces, to determine whether the breakage of the I-beam was necessarily from a brisant explosive. Further, in the opinion of Walter Korsgaard, the FAA expert who investigated the Avianca crash, the wing box that contained the I-beam was violated after the second (fuel-air) explosion. Third, regardless of the VOD of the explosive, a gas jet will precede the shock wave and hit the target before the shock wave pushes it away. Hahn made no calculations of the difference in speed between a jet from an explosive with a VOD of 20,000 feet per second and a jet from an explosive with a VOD of, say, 16,000 feet per second. Needless to say, jets from either explosive would travel extraordinarily fast. Hahn has no scientific basis for concluding that the depressurization of the cabi n would have pushed the fuselage away before it could have been hit by a jet from an explosive with a VOD below 20,000 feet per second.

 

On January 8, 1997, an attorney representing Hahn submitted a letter arguing, among other things, that, quite apart from the pitting and cratering, Hahn's VOD opinion was reasonable in light of (1) the shattering of the I-beam and (2) the detection of residue of RDX and PETN. The letter asserts that these two factors, taken together, alone establish the reasonableness of Agent Hahn's conclusion. (Emphasis in original). Again, this justification is not the one Hahn used in his trial testimony, in which he asserted that the pitting established the explosive's VOD. In any event, as discussed in the preceding paragraph, the evidence that the I-beam was shattered in such a way as to show high brisance is weak. As to the second factor, if the explosive device on the aircraft used RDX and PETN as the explosive main charge, then by definition the main charge would have had a VOD in excess of 20,000 feet per second since the VODs of RDX, PETN, and Semtex (which combines RDX and PETN) exceed 23,900 feet per second. The residue evidence does indicate that the main charge may have consisted of RDX and PETN and that therefore the VOD of the main charge may have exceeded 23,900 feet per second. Had Hahn so testified, his testimony would have been reasonable, but he testified to something else. The problem with Hahn's testimony was that he correlated the pitting to a particular VOD range. That testimony was scientifically unsound and not justified by Hahn's experience, regardless of what the residue evidence may have shown.

 

d. Hahn's Rejection of the Whitehurst Literature

 

On June 14, 1994--a few days after his testimony in the first trial and 5 months before his testimony in the second trial--Hahn received the Whitehurst Memorandum with its attached scientific literature. One of the attached articles indicated that pitting and cratering could be achieved on aircraft aluminum with a 40% Forcite gelatin dynamite. Although Hahn assumed in 1994 that this dynamite had a VOD of 20,000 feet per second, in fact its VOD is about 13,800 feet per second.

 

Hahn told us that he ignored the literature when he testified in the second trial, because the pitting depicted in the literature (pits with a diameter of .1 to .5 millimeters) was vastly different in dimension from the pitting in the Avianca case (pits with a diameter of 1/8 to 1/4 inch). Hahn stated in his interview that [u]ntil such time as I saw Mr. Whitehurst's paper, I never paid attention to, looked for, [or] was even aware of this sort of microscopic pitting and cratering that that paper refers to.

 

The literature also discussed how pitting and cratering is caused. One article (by H. P. Tardif and another author) stated:

 

This phenomenon can be produced by two separate mechanisms. The first is due to the shaped charge effect caused by tiny imperfections at the surface of the charge. These imperfections, such as holes and cavities, collapse to form extremely high velocity jets of gases which impinge on the surface to form small crater-like pits. The second appears to be caused by the high velocity impact of small amounts of unconsumed explosive with a nearby surface or by friable extraneous material placed between the charge and the nearby surface.

 

A second article (by D. G. Higgs and T. S. Hayes) stated: It is thought that the pits are caused by the impingement of high velocity particles of partially combusted explosive and/or fused extraneous matter encountered between the explosive charge and the witness' material.

 

The Tardif and Higgs explanations differed from Hahn's jetting theory in two respects. First, Hahn believed that pitting was derived from gas jets. Both articles, however, provide another mechanism for pitting--namely, the impingement of particles of unconsumed explosive or extraneous matter placed between the explosive and the target. Second, the Tardif article does include as one mechanism Hahn's theory that pits can be caused by jets formed from imperfections at the surface of the explosive. But Tardif states that these pits will be small, presumably within the size range discussed in the article (.1 to .5 millimeters). The Tardif article thus at least raises the question whether Hahn's jetting theory can account for the large pits on the Avianca aircraft.

 

After Hahn received the Whitehurst memorandum and the attached scientific literature, he made no inquiries before the second trial concerning the soundness of his theories regarding pitting and cratering. Because Hahn was unfamiliar with microscopic pitting and had no experience with pitting on aircraft aluminum and because the articles raised questions concerning the validity of his jetting theory, we conclude that Hahn erred when he failed to look into these matters before he testified in the second trial.

 

2. Hahn's Testimony About the Results of Whitehurst's Examination

 

Whitehurst contends that in both trials Hahn gave inappropriate testimony regarding the findings of RDX and PETN, because Hahn failed to mention the conclusions set forth in the Whitehurst Memorandum. We conclude that Hahn's testimony in the first trial was unobjectionable but that his testimony in the second trial was incomplete. Further, we conclude that SAS Chief James Kearney contributed to Hahn's incomplete testimony by not properly resolving the issues raised by the Whitehurst Memorandum. As discussed in Section B, infra, however, the Whitehurst Memorandum was a deeply flawed document. Accordingly, the impact of Hahn's failure to mention the opinions in the document may have been insignificant.

 

a. Background

 

In 1990 Whitehurst submitted AE dictation in which he identified the presence of RDX and PETN high explosive[s] on a specimen consisting of a piece of the rubber fuel bladder Hahn had cut from the Avianca wreckage in Colombia. The dictation contained no other findings on any specimen. The instrumental analyses upon which Whitehurst based his conclusions were performed by a technician, Edward Bender.

 

On June 8, 1994, the Whitehurst Memorandum was submitted to Corby. In the memorandum, Whitehurst reviewed this matter and offered opinions that supplemented or questioned his 1990 dictation. Whitehurst stated: It is my opinion at this time that the data we acquired from analysis of the evidence provided to us in this matter does not disprove the use of an ammonium nitrate based high explosive and in fact is consistent with but not proof of the use of such an explosive. Regarding his 1990 chemical analysis that detected PETN and RDX, Whitehurst stated that [a] number of questions [about possible contamination] need to be answered before we can determine the significance of that data. He then listed a series of questions concerning possible contamination at the crime scene, during transportation of the evidence, and during the processing of the evidence at the Laboratory. He further opined that [t]he upshot of all of this is that the data we have at this time cannot be used to successfully disprove the statement that a gelatin dynamite was used in this bombing.

 

On June 14, 1994, a week after he testified in the first trial, Hahn received the Whitehurst Memorandum. He discussed the memorandum with EU Chief Ronay and sent Ronay a copy of the memorandum on June 14, 1994. On June 16, 1994, Ronay sent a memorandum to SAS Chief Kearney regarding the Whitehurst Memorandum, which he attached. On June 22, 1994, Hahn also sent Kearney a memorandum. Shortly after receiving Ronay's memorandum, Kearney sent a list of questions to Corby about the events surrounding the Whitehurst Memorandum and its dissemination to Pollak. Corby responded to Kearney's questions in writing on July 6, 1994. Corby supported many of Whitehurst's opinions.

 

Kearney told us he thought both Hahn and Whitehurst should have testified at the trials. However, neither Kearney, Ronay, nor any other supervisor advised Hahn on how he should deal with the Whitehurst Memorandum in his testimony at the second trial.

 

Hahn regarded the Whitehurst Memorandum as a rejection of his [Whitehurst's] own scientific findings. Hahn stated, In this case, Mr. Whitehurst has, in writing, offered an opinion contrary to his own scientific findings. Nevertheless, on November 22, 1994, Hahn testified in the second Munoz trial that in 1990 he submitted pieces of the aircraft and swabbings to

 

the Materials Analysis Unit of the F.B.I. laboratory to try -- who specialize in looking for explosives residue to try to determine what explosive was used here.

 

Q. What were the results of those tests?

 

A. The results were although they found no residue that they could identify here on this piece, or any other piece, except a piece of the fuel bladder, and on that piece of fuel bladder taken from the area right immediately underneath the blast, they found residue of two explosives, Research Development Explosive, RDX, which is again a very fast brisant explosive; and PETN, or Penta-erithrit[o]l tetranitrate. . . .

 

In his testimony Hahn made no mention of anything in the Whitehurst Memorandum.

 

Hahn maintains that he properly ignored the Whitehurst Memorandum in his testimony for the following reasons:

 

What he says in the letter [referring to the Whitehurst Memorandum] is not based on any sort of analysis. What he says in the letter is based on speculation, it's not the results of his material analysis.

 

I mean, Fred does nothing in that letter [but] speculate as to what could have been or what might have been or what may have occurred. His scientific analysis, his instrumental analysis that he conducts, still remains that the results were PETN and RDX.

 

Furthermore, I spoke to Bender, who actually conducted it, who, again, was completely comfortable with those results, felt they could be relied upon. Why should I not rely on them.

Further, Hahn told us that he answered the questions raised by Whitehurst regarding contamination and assured himself that there was no contamination of the evidence. Finally, Hahn relied on his belief that the defense had a copy of the Whitehurst Memorandum so that the defendant could call Whitehurst as a witness to elicit any of the information in the memorandum.

 

b. Discussion

 

(1) Hahn

 

Because Hahn was unaware of the Whitehurst Memorandum when he testified in the first trial, he cannot be faulted for failing to include it in his testimony.

 

Regarding Hahn's testimony in the second trial, Whitehurst alleges that Hahn committed perjury by reciting the MAU results without supplementing or amending them with the information in the Whitehurst Memorandum. Although we find no perjury, we conclude that the testimony was incomplete.

 

When one Laboratory examiner testifies to the results or conclusions of another examiner, the testifying examiner has a duty to report the results accurately and completely--whether he agrees or disagrees with his colleague's opinions. Although in 1990 Whitehurst concluded that RDX and PETN were on the fuel bladder and that, according to his dictation, he reached no other conclusions regarding explosives residue, Whitehurst stated in 1994 that he reached additional conclusions from a review of the data. It was beyond Hahn's expertise as an EU examiner, and beyond his discretion as a witness purporting to recite the results of another examiner, to selectively omit the 1994 conclusions because Hahn thought they were speculative or otherwise meritless. What was requested of Hahn on the witness stand was not his evaluation of Whitehurst's conclusions but merely a factual restatement of them. When Hahn was asked to state the MAU results, a complete answer would have been that the MAU chemist found RDX and PETN in 1990 but on a further review in 1994 also found that the data did not prove but was consistent with an ammonium nitrate explosive and thought that the significance of the data for RDX and PETN could not be determined without answering certain questions about contamination. Since Hahn believed that in 1994 Whitehurst reject[ed] the scientific findings made in 1990, Hahn's testimony about the 1990 findings was potentially mis leading without the caveat that the author of the 1990 findings now had misgivings and additional findings.

 

We recognize that Whitehurst neither withdrew the original dictation nor submitted a supplemental dictation. Nor do we consider the Whitehurst Memorandum a complete rejection of Whitehurst's dictation. Nevertheless, when Hahn testified in the second trial, Hahn was aware that Whitehurst had reached additional conclusions supplementing those reflected in his 1990 dictation. To ignore the Whitehurst Memorandum because it lacked the form of a supplemental dictation would be an elevation of format over substance. At a minimum, Hahn had an affirmative duty to obtain explicit permission from a supervisor before he omitted reference to the Whitehurst Memorandum, because such omission was potentially incomplete and misleading. He failed to obtain such supervisory approval.

 

That Bender was comfortable with the original dictation is immaterial. Bender was a technician. Whitehurst, as the examiner, was responsible for the MAU results and conclusions. Moreover, all Bender could say was that the instrumental results were accurate--something Whitehurst never disputed. The Whitehurst Memorandum concerned additional conclusions concerning an ammonium nitrate explosive and the significance of the instrumental results--matters on which Bender was unqualified to comment.

 

Similarly, that Hahn believed there was no contamination did not justify omitting language Whitehurst used to qualify his conclusions.

 

Finally, that the defense may have had the Whitehurst Memorandum does not mean Hahn could ignore it in his testimony. Regardless of what the defense possesses, an examiner has a duty to present accurate testimony. By not testifying to the information in the memorandum, Hahn gave testimony that was incomplete. Moreover, Hahn did not know for a fact that the memorandum was disclosed. Although Hahn told us I'm certain the prosecutor gave the memorandum to the defense, he also told us, So, I mean, I don't really know, but I imagine that [Cheryl Pollak, the prosecutor] recognized that it was incumbent upon her to provide it [to the defense] and she discharged her duties. I have no reason to presume otherwise.

 

When one examiner testifies to another examiner's conclusions, the testifying examiner is only a messenger. He has no discretion to omit language supplementing or qualifying the conclusions, even if he believes the language is speculative or groundless. We recognize that Hahn was presented with a very unusual and difficult situation and that he received no guidance from his supervisors. We nevertheless conclude that he had an affirmative duty to resolve the controversy before he gave potentially incomplete and misleading testimony and that he therefore erred when he testified, without explicit supervisory approval, as though the Whitehurst Memorandum did not exist.

 

(2) Kearney

 

Although Hahn erred in his testimony, Kearney contributed to that error. Kearney told us he believed that the Whitehurst Memorandum would not affect the Laboratory results or Hahn's testimony. Yet Kearney recognized that in the memorandum Whitehurst was attempting to qualify his initial results, and Kearney thought that Whitehurst should have testified to his examination and results at trial. Had Whitehurst testified, the qualif[ications] to his initial results would have been put before the jury. Yet Kearney took no action either to cause Whitehurst to testify in the second trial or to tell Hahn to include the qualif[ications] in his own testimony if Hahn was asked to restate Whitehurst's conclusions.

 

Moreover, Corby supported much of Whitehurst's analysis, but we can detect no steps taken by Kearney to consult with other qualified experts to resolve the scientific issues. Without further review of the technical and scientific issues that had been raised, we do not see a valid basis for Kearney's decision to dismiss the concerns raised by the Whitehurst Memorandum.

 

One example of a scientific issue in the memorandum that Kearney dismissed without proper consideration related to Whitehurst's observations concerning the VOD necessary to cause pitting and cratering. Despite Corby's support for Whitehurst's position, Kearney apparently rejected Whitehurst's position without thorough scientific research and analysis.

 

The most glaring mistake made by Kearney was his failure to communicate to Hahn or Whitehurst, and document, any decisions he did make. Whitehurst waited but was never called as a witness in the first trial. He was not even informed of the second trial. Hahn heard nothing regarding his complaints about the memorandum and thus proceeded to the second trial with no further guidance on how to handle any questioning on this topic. If the memorandum had been turned over to the defense, questions regarding it were certainly possible at the second trial. Kearney should have informed Hahn of his reasoning in dismissing the concerns in the memorandum so that Hahn could be prepared to respond to defense questions. Instead, management left Hahn and Whitehurst totally unprepared for the embarrassing situation in which they might be forced to take the stand and contradict each other.

 

In sum, we conclude that Kearney erred in not properly resolving the issues raised by the Whitehurst Memorandum and not communicating his decisions to Hahn and Whitehurst.

 

3. Secondary Explosion

 

Hahn testified in both trials that, after the explosive device was detonated on the Avianca aircraft, a fire started resulting in a secondary explosion, which he described as a fuel-air explosion, that destroyed the aircraft. In the first trial he stated that we reached the conclusion as to what happened. By implication, this meant that Hahn reached the conclusion in consultation with the FAA and NTSB representatives at the crime scene. In contrast, in the second trial Hahn stated that the scenario he described was my conclusion. This statement of the conclusion is problematic because Hahn is not an expert in fuel-air explosions.

 

When asked by the OIG what experience he had in linking particular damage with the occurrence of a fuel-air explosion, Hahn stated, The FAA has conducted experiments where they've done fires on board an aircraft fuselage and have had areas of flashover, and I've seen videos of that. And other than that, and being aware of fuel-air explosions, I don't have any experience. Hahn further explained that he based his testimony on other experts and things that he had read about fuel-air explosions. Hahn readily admitted to the OIG that he was not an expert in fuel-air explosions.

 

We find Hahn's testimony in the second trial regarding fuel-air explosions to be beyond his own experience and expertise. As proof of his lack of expertise, we cite the fact that Hahn interchangeably refers to the secondary explosion as a fuel-air explosion or a flash fire. These two phenomena are not the same, and Hahn's use of the two descriptions interchangeably is incorrect. Hahn admitted that he was using the two words to mean the same thing; however, he clarified that what he was really talking about was a flashover or the point at which matter suddenly burns explosively. This distinction was not made in his testimony at tria l.

 

Walter Korsgaard was the FAA representative who investigated the Avianca crash; he is an expert on fuel-air explosions on aircraft. Like Hahn, Korsgaard concluded that a fuel-air explosion occurred on the Avianca flight. Korsgaard's opinion as to what happened, however, differed from Hahn's in certain respects. Korsgaard's report states:

 

Based on the above evidence and various eye witness accounts, the following sequence of events can be developed:

 

-- [1] IED [improvised explosive device] detonates in area under seat number 14F and frame station 783 on passenger cabin floor.

 

-- [2] Passenger cabin floor penetrated.

 

-- [3] Passenger cabin fuselage skin and top of center fuselage fuel tank middle bladder section penetrated.

 

-- [4] Passenger cabin relatively slowly begins to decompress and pressurize[d] center fuselage fuel tank.

 

-- [5] A fuel/air explosion and fuel ignition is initiated in top of center fuselage fuel tank spreading rapidly thru [sic] vent holes to right and left number 2 fuel tank wet wing sections and back into passenger cabin as pressure in fuel tank exceeds cabin pressure.

 

-- [6] Structure integrity of center fuselage wing box section and right and left wet wing fuel tank sections of number 2 fuel tank bulkheads are violated.

 

-- [7] Fuel in wet wing fuel tanks numbers 1 and 2 is ignited.

 

-- [8] The APU [auxillary power unit] located at rear of center fuselage wing box section is blown to rear of aircraft by the force of the fuel/air explosion within this center section fuel tank.

 

Korsgaard continues the sequence of events by describing how the aircraft broke up and came to the ground.

 

In the two trials and in his OIG interview, Hahn testified to a scenario different from Korsgaard's. Hahn agreed with the first three events described by Korsgaard: an IED detonated under seat 14F, breaching the center fuselage fuel bladder tank and the side of the aircraft. Then their accounts diverge. Hahn made no mention, as Korsgaard did (Event 4), that the passenger cabin relatively slowly beg[an] to decompress and pressurizes center fuselage fuel tank. In fact earlier in Hahn's testimony in the second trial he said that certain aircraft damage indicated rapid depressurization of the cabin.

 

The next event, according to Korsgaard (Event 5), was that a fuel/air explosion and fuel ignition is initiated in top of center fuselage fuel tank. According to Hahn, on the other hand, the next event is a fire that burned dirty, throwing a lot of hot gaseous material into the air, a lot of hot matter into the air. According to Hahn, the fuel-air explosion did not come until later:

 

[W]hat I believe happened is that a small explosive device functioned, breaching the aircraft, opening the side of the fuselage, opening up the bladder box or the bladder fuel cells inside the wing, blasted and started a fire.

 

That fire burned for a number of seconds, probably in the neighborhood of a minute, at which point in time the hot gases and hot particula[te] matter from that fire caused the secondary explosion of fuel air explosion. That broke the aircraft apart.

 

Moreover, according to Hahn, the fuel-air explosion did not occur in the fuel tank, as Korsgaard stated, but rather inside the fuselage (first trial). As Hahn described it in his OIG interview:

 

So the fire [that was set off by the explosive device] is burning as that fuel is venting and it's burning not only fuel, but it's going to be burning carpeting and seat cushions and fabrics, rugs, whatever is there on board that aircraft. . . . [E]ventually it reaches a point where you have enough heat and hot gasses and hot flammable gasses and particulate matter in the air where it flashes over, and when it flashes over, the aircraft comes apart.

 

In the first trial and in the OIG interview, Hahn compared the fuel-air explosion in Avianca to a fuel-air explosion in a grain elevator, in which small particulate matter from the grain is suspended in the air. Korsgaard said nothing about particulate matter from the interior of the cabin playing a role in the fuel-air explosion.

 

Thus, Hahn's theory regarding a fuel-air explosion differed from Korsgaard's in three principal respects. The first difference related to the sequence of events: Korsgaard thought the event that followed the detonation of the IED was the fuel-air explosion and the fire, whereas Hahn testified that the detonation led to a fire that burned probably for about a minute and then the fuel-air explosion occurred. The second difference related to the location of the fuel-air explosion: the center fuel tank (Korsgaard) as opposed to the fuselage (Hahn). Finally, Korsgaard did not say, as Hahn did, that particulate matter played a role in the explosion.

 

Because Hahn is not an expert in fuel-air explosions, he should have simply testified to the opinion of Korsgaard (or to the opinion of another qualified expert)--with an attribution and without embellishment. Hahn ventured beyond his expertise when he developed and testified to his own theory of a fuel-air explosion.

4. Injuries to Passengers

 

Hahn testified in both trials that certain injuries observed on the passengers' bodies--hard, burnt skin and skulls that had been cracked open--supported his theory of a secondary explosion. In the first trial he stated that these injuries were consistent with extreme heat, flash-fire type of damage. In the second trial he stated the injuries were consistent with a flash fire or a fuel-air explosion. We conclude that this testimony was beyond Hahn's expertise and was incorrect.

 

Hahn told us that he drew the connection between these injuries and the flash fire because the only other place he had heard of the same type of injuries was in lectures regarding a flash fire at Dupont Plaza in Puerto Rico. He also told us that he was familiar with the subject matter because he attended lectures on fire damage by a former agent where this was discussed and had read articles about these same types of injuries and their causes. We conclude that this experience was inadequate to make him an expert on the relationship between the injuries and an explosion.

 

In fact, the injuries are not consistent with a flash fire or fuel-air explosion, which are of short duration. Rather, the injuries indicate that the bodies were subjected to substantial heat for a significant period of time. When we pressed Hahn on this point, he acknowledged that the injuries to the bodies did not justify the opinion that a fuel-air explosion occurred but rather that there was a hot fire burning for a continuous period of time. Hahn admitted that it might have been more accurate for him to say that the injuries to the bodies were consistent with his theory of how the fuel-air explosion came about--that is, that there was a preexisting condition (the continuous hot fire) which could have led to a fuel-air explosion. As Hahn also admitted, however, this preexisting condition would not always result in a fuel-air explosion, and a fuel-air explosion would not always require a fire such as the one he believed occurred in this case. Essentially, the injuries to the bodies told Hahn nothing ab out whether a fuel-air explosion occurred; they only told him that an intense fire burned for a period of time. This is quite different from his testimony that the injuries to the bodies were consistent with a flash fire or fuel-air explosion.

 

Hahn told us he thought he could render opinions about matters if I know more than a layman, which is your test of whether or not you're an expert. He also stated that if I know the answer it would be permissible for him to respond to questions outside his expertise. As exemplified by this case, Hahn's views are incorrect and dangerous. All educated laymen are not experts. That a witness thinks he knows the answer to a question does not mean he does. To assure that erroneous and unreliable information is not presented in court, a Laboratory examiner must only answer questions within his expertise.

 

In sum, we conclude that Hahn's testimony about the injuries was misleading, inaccurate, and outside his area of expertise. We further conclude that he improperly used this testimony to support his theory of a fuel-air explosion.

5. Other Allegations

 

Concerning Hahn's testimony, Whitehurst makes numerous other allegations, which we will address summarily. Because Whitehurst makes the same basic criticisms to Hahn's testimony in both trials, the references below are to the second trial unless otherwise noted.

 

a. Whitehurst contends that Hahn misstated his qualifications and background. We conclude that only one contention has merit. Hahn was not required to volunteer his major in college (English), and, when Hahn testified to his participation in scores of bombing cases, he was not required to volunteer the percentage relating to aircraft explosions.

 

Hahn also testified that [m]y experience includes being called upon to do crime scene processing and make assessments of such notable causes of explosives [sic] in criminal cases such as Pan Am 103 over Lockerbie, Scotland and the World Trade Center in New York. This testimony overstated Hahn's experience. In the Pan Am 103 case, Hahn's only involvement in explosive assessments was that he examined the passengers' personal effects for blast damage. In the Trade Center case, Hahn's role was limited to management of the crime scene and did not include analysis of the evidence.

 

b. During his testimony Hahn was shown numerous photographs (most of which he took) of the aircraft wreckage and debris and a diagram of the aircraft, and he was asked to state his observations. Regarding one photograph he stated that on the inside wall of this fuselage is where we actually found charring and heat damage, which told us that, again, this side of the aircraft from the outside was not on fire, but inside smoke was filling out, circulating throughout the fuselage, and heating up terribly, melting down things on the inside of the aircraft on the left-hand side. (Emphasis added.) Although Hahn may not be an expert on fire damage to aircraft, his testimony here implicitly meant that the other experts at the scene, who do have expertise on this subject, participated in the assessment. Accordingly, we do not fault this testimony.

 

Regarding another photograph Hahn testified:

 

That is a wing of the aircraft and it show[s] very severe fire damage. That fire damage is very evident here (indicating) where you see this white area on the far right-handside of the photograph, but that is actually where the aluminum has become oxidized from the heat. Cooked, if you will, almost to a boiling point.

 

We conclude that this testimony exceeded Hahn's expertise and was inaccurate. Hahn had no expertise in the oxidation of aluminum. Without a scientific examination of the white area, Hahn could not say categorically that it was the result of oxidation. In his OIG interview Hahn told us that the oxidation would not occur just from heat, as he testified at trial, but from the burning process in the presence of air (oxygen). Hahn had no scientific basis for saying that the aluminum was [c]ooked . . . almost to a boiling point.

 

Regarding the diagram and other photographs, Hahn commented on the structure of the aircraft. Kearney felt Hahn drifted outside his expertise on some of this testimony. Some of Hahn's comments were merely descriptive, requiring no special expertise ( debris at the crime scene, main landing gear ). Other testimony, however, appears to require expertise that Hahn lacked (position on aircraft of fuel tanks, position and function of wing box ). Also, Hahn commented on what he perceived as non-explosive damage (deformation of fuselage by depressurization of aircraft). In these examples, Hahn should have made clear tha t he was basing his testimony on information received from other experts. In contrast, regarding the lack of information from the voice data recorder, Hahn testified that [w]e believe the lines were cut by the detonation of the explosive device (emphasis added), implying that the assessment came, at least in part, from the aircraft experts at the scene.

 

c. We reject Whitehurst's contention that an EU examiner such as Hahn, because he is not a metallurgist, is unqualified to testify about his observations of unique explosive damage such as pitting and cratering. Such observations and conclusions are within a qualified EU examiner's expertise. Similarly, Hahn was qualified to say that (1) a portion of the emergency exit was probably in . . . many pieces because it was situated near the seat of the explosive device, (2) certain damage was probably impact rather than explosive pitting, and (3) the explosive pitting would occur within a certain distance of the explosive. We do not consider the latter comment fabricate[d] testimony, as Whitehurst claims.

 

d. We conclude that Hahn was beyond his expertise and inaccurate in his use of certain terms (the gas causing pitting and cratering was in the form of a plasma, the metal in the pits was crystallized, the explosive Semtex contains a butylene binder). These terms were unnecessary to Hahn's presentation and should have been avoided.

 

e. Contrary to Whitehurst's claims, Hahn, in our opinion, did not give fabricate[d] explanations of brisant explosives and the functioning of a high explosive ( [h]igh explosives function not by burning, but by molecular breaking apart ). These were not unacceptable lay explanations for these matters.

 

f. We find no fault with Hahn's testimony about the uses of PETN and RDX and the composition of Semtex. In fact, these explanations track Whitehurst's dictation. Similarly, Hahn's testimony that Semtex and C-4 are not, and nitroglycerine is, impact sensitive was accurate.

 

g. Hahn testified as to how his duties differed from the duties of the NTSB and FAA representatives, by saying that his assignment was to determine whether an explosive device functioned on the aircraft and the duties of the others were primarily to determine whether the crash resulted from a mechanical failure. We think this testimony was slightly inaccurate. Needless to say, if it was determined that the crash resulted from a criminal act, the FBI would have been the exclusive agency of the United States to investigate the crime. But the NTSB and FAA are, without limitation, mandated to determine the cause of the crash, which would include an inquiry by them as to whether an explosive device was used.

 

h. Whitehurst expressed concern that Hahn's testimony showed that his presence at the DAS crime scene may have led to contamination of the Avianca evidence. Hahn, however, told us that he had sent the Avianca evidence to the Laboratory before the DAS Building was bombed.

 

i. In the first trial, after Hahn testified to the findings of RDX and PETN, he was asked whether those chemicals would be found in any other part of the plane other than an explosive device --in, for example, the seats or the paneling. Hahn replied:

 

They are both extremely unstable molecules, as any explosive would be. And they, in fact, they can break down with something as simple as sunlight. You would not find them in the environment, no.

 

This answer was partially inaccurate. Although RDX and PETN do not occur naturally in the environment, they are not extremely unstable and would not readily break down from sunlight under normal circumstances.

 

B. Whitehurst's Conduct

 

As explained below, we conclude that Whitehurst's conduct in this case was deeply flawed in several respects.

 

1. Overload

 

On June 4, 1994, Hahn called Whitehurst about the Confessor. According to Whitehurst, Hahn asked whether Whitehurst could discredit the Confessor's claim that an ammonium nitrate gelatin dynamite was used on the aircraft. As Whitehurst told Hahn on June 4th, and as Whitehurst acknowledged in his memorandum, he would have expected to find residues of nitroglycerine (NG) on the evidence if a dynamite had detonated on the aircraft. (NG is a primary component of dynamite. See n.98, supra.) According to the Whitehurst Memorandum, however, no residues of NG were found on the specimens Whitehurst examined. Nevertheless, Whitehurst concluded in the memorandum that he could not disprove the dynamite claim. One of the reasons for this conclusion was that Whitehurst noticed in his 1994 review that the liquid chromatography test (LC) for PETN was overloaded, which may have obscured the presence of NG. Because, therefore, NG may have been present but not detected due to the overload, Whitehurst asserted in the memorandum that he could not eliminate the possibility of a dynamite.

 

What Whitehurst overlooked in his 1994 review, however, was that, in addition to the LC test, a thin layer chromatography test (TLC) was conducted. The TLC would have detected NG if present. It did not. A thorough review of the file by Whitehurst would have revealed this information. When we confronted Whitehurst with the TLC results, he admitted that he erred in not reviewing the TLC data in 1994 and in concluding that due to the overload he could not exclude the presence of NG. Thus, we fault Whitehurst for failing to conduct an adequate review of his own file prior to issuing his memorandum, a review that would have invalidated his theory that NG may have been present and was obscured by the overload.

 

With respect to his original 1990 examination, we also fault Whitehurst for failing to recognize the overload and run a second test.

 

2. Misstatement of the June 4th Conversation and of the Pertinent Issue

 

The Whitehurst Memorandum began with a summary of Whitehurst's June 4, 1994, conversation with Hahn about the Confessor. The summary, however, misstates the conversation on a material point. According to the memorandum, Hahn said in this conversation that the Confessor claimed to have used an ammonium nitrate based explosive (emphasis added) and that the damage was not consistent with an ANFO type explosive. (ANFO consists of ammonium nitrate and fuel oil.) In fact, as Whitehurst acknowledged in his OIG interview, Hahn said that the Confessor claimed to have used an ammonium nitrate based dynamite. When Whitehurst wrote the memorandum, he, of course, knew the claim concerned a dynamite, since he discussed dynamite throughout the memorandum, and he attached to the memorandum one of the Confessor's statements, which described the use of a dynamite.

 

One important difference between an ammonium nitrate based explosive and an ammonium nitrate based dynamite is NG, which is an essential component only of the latter. By misstating the June 4th conversation by omitting reference to a dynamite and by including reference to ANFO, Whitehurst made it seem that the important issue to be addressed in the memorandum was the use of an explosive that may not contain NG. As noted, Whitehurst detected no residues of NG on the evidence.

 

In the second paragraph of the memorandum, Whitehurst stated the following conclusion:

 

It is my opinion at this time that the data we acquired from analysis of the evidence provided to us in this matter does not disprove the use of an ammonium nitrate based high explosive and in fact is consistent with but not proof of the use of such an explosive.

 

Later in the memorandum, Whitehurst stated the basis for this conclusion:

 

The presence of white powder in the pits and the initial data consistent with the presence of nitrate and nitrite ions is consistent with though not proof of the presence of an ammonium nitrate based explosive.

 

This conclusion tracked Whitehurst's misstatement of the June 4th conversation and begged the real question in the case--namely, whether the data disproved or was consistent with the use of an ammonium nitrate based dynamite. As Whitehurst stated in his interview, The question that [Hahn] asked me was essentially, was an ammonium nitrate gelatin based dynamite used, or can you discredit that.

 

Because Whitehurst detected no NG residue, it would have been difficult for him to conclude that the evidence in fact is consistent with the use of a dynamite. We are unable to find that Whitehurst deliberately misstated the June 4th conversation to avoid that difficulty but still render an opinion that the evidence was consistent with a large class of explosives that would appear to include an ammonium nitrate dynamite. In any event, the conclusion about an ammonium nitrate explosive did not address the exact question asked by Hahn. Nowhere in the Whitehurst Memorandum does the author say that the data is consistent with an ammonium nitrate dynamite.

 

Whitehurst may have rendered an opinion that the data was consistent with an ammonium nitrate explosive because he thought this was the only conclusion justified by the evidence and he thought, in good faith, that he should set forth any conclusions he could reach. If so, he should have stated explicitly that he could not conclude that the data was in fact consistent with an ammonium nitrate dynamite, the Confessor's alleged explosive. As written, the conclusion is, at best, confusing, because it erroneously suggests that Whitehurst thought the data was consistent with the Confessor's story.

 

3. Validity of Opinions

 

a. Ammonium Nitrate Explosive

 

As noted, Whitehurst opined that the data (1) does not disprove, and (2) in fact is consistent with, an ammonium nitrate based high explosive. The first part of the opinion appears valid. Indeed, because all the remnants of the aircraft were not recovered and because the recovery did not begin until several days after the crash, it would have been virtually impossible to disprove the use of any explosive based on the residue analysis. Finding one or more explosives on the recovered residue (e.g., RDX and PETN) would not preclude the possibility that the residue of another explosive either was on an unrecovered remnant or, before the recovery began, was washed away by rain, was dislodged by the crash, decomposed, etc. The failure to find residue of an ammonium nitrate explosive, therefore, would not constitute proof that the explosive was not used on the aircraft.

 

In contrast, Whitehurst's opinion that the data in fact is consistent with an ammonium nitrate explosive is an overstatement by any reasonable measure. Whitehurst stated in the memorandum: The presence of white powder in the pits and the initial data consistent with the presence of nitrate and nitrite ions is consistent with though not proof of the presence of an ammonium nitrate based explosive. Whitehurst's technician found white powder in certain pits on the fuselage. This white powder possibly could have been ammonium nitrate. The technician, however, attempted to examine this powder instrumentally and was unable to determine what it was. The identity of the white powder is unknown.

As for the ions, Whitehurst's technician produced initial data consistent with the presence of nitrate and ammonium ions on specimen Q13. A second test, however, could not confirm[] the presence of the ions. Accordingly, it is not certain that the ions were in fact present. In any event, because nitrate and ammonium ions occur naturally in the environment, the mere detection of them has only very limited probative value.

 

Whitehurst himself later maintained that similar results were not significant when he criticized certain work by David Williams in the Oklahoma City case. There, Williams stated in his report that [a]mmonium ions and nitrate ions were found to be present on specimen Q171. This statement was apparently made in support of Williams' theory that ANFO was the main charge in the explosive device. Whitehurst had this to say about Williams' statement:

 

Why is Mr. Williams being allowed to introduce this into his report. He knows perfectly well that that means absolutely nothing at all. But the prosecutors will not. After an explosion the presence of nitrates are ubiquitous. Before an explosion nitrates are ubiquitous, everywhere. We are only now conducting background studies to determine just how prevalent. Many explosives give off ammonium. It means nothing, UNLESS TAKEN OUT OF CONTEXT.

 

(Capitalization in original; emphasis added.) When confronted with the contradiction between his comments about ions in the Avianca and Oklahoma City cases, Whitehurst could provide no explanation.

 

The laboratory notes in the Avianca case for specimen Q13 state that the ammonium and nitrate ions could not be reasonably associated because ammonium nitrate was not detected on a particular test and both ions could be formed by other than ammonium nitrate explosives. In his dictation, neither did Whitehurst mention the ions, nor did he say the data was consistent with an ammonium nitrate explosive.

 

Because (1) the white powder could not be identified, (2) the presence of the ions could not be confirmed, and (3) the ions have been found to occur naturally in the environment, we conclude that Whitehurst's statement that the data is consistent with the use of an ammonium nitrate explosive is overstated and suggests too strongly that such an explosive may have been used on the aircraft.

 

b. Ammonium Nitrate Dynamite

 

In his memorandum Whitehurst also opined that the data we have at this time cannot be used to successfully disprove the statement that a gelatin dynamite was used in this bombing. This opinion is valid for the reasons stated above concerning the inability to disprove the use of an ammonium nitrate explosive (failure to recover all remnants of the aircraft, etc.).

 

In his OIG interview Whitehurst addressed whether the data was consistent with the presence of an ammonium nitrate dynamite. He stated there was a weak consistency. He stated that the bases for this opinion were the factors discussed above regarding an ammonium nitrate explosive (the white powder and ions) and the fact that the presence of NG might have been obscured by the instrumental overload. As discussed above, Whitehurst's overload theory was invalid. Given Whitehurst's failure to detect NG residue and given the weakness of the data showing the use of an ammonium nitrate explosive, we conclude that Whitehurst's data did not warrant the opinion (given in his OIG interview) that the evidence was consistent with the use of an ammoniu m nitrate dynamite.

 

Whitehurst's data only allowed him to opine: (1) the data does not disprove the use of an ammonium nitrate dynamite; (2) no data points to the use of a dynamite; (3) some data (the unconfirmed presence of ions and the unidentified white powder in the pits) have very limited probative value; (4) the ions (if they were present) could have come from an ammonium nitrate dynamite or from numerous other explosives or from the environment, and he cannot say which alternative is most likely; and (5) the unidentified white powder could have been ammonium nitrate or some other white substance, and he cannot say which alternative is most likely.

 

Thus, Whitehurst's opinion that the data was consistent with the use of an ammonium nitrate explosive was not only overstated but begged the real question--namely, whether the data was consistent with the use of an ammonium nitrate dynamite (the explosive the Confessor said he used). As to that question, we conclude that Whitehurst's data did not justify an opinion that the evidence was consistent with any dynamite. Accordingly, Whitehurst's conclusion in the second paragraph of the memorandum--that the data in fact is consistent with an ammonium nitrate explosive--was not only overstated, but also misleading, because it suggested, without a valid scientific basis, that Whitehurst 's data supported the Confessor's story.

 

4. Contamination

 

Although not directly relevant to the discrediting of the Confessor's story, Whitehurst addressed in the memorandum whether possible contamination prevented the Laboratory from determining the significance of the data identifying the presence of RDX and PETN. In his original dictation Whitehurst stated:

Chemical analysis of specimen Q15 identified the presence of RDX and PETN high explosive. These two explosives are used in conjunction in the explosive SEMTEX. They also can be used in separate components of explosive systems.

 

It is the opinion of this examiner that the RDX and PETN identified on specimen Q15 originated either from an explosive such as SEMTEX or from a combination of components of an explosive system containing both PETN and RDX.

 

The Whitehurst Memorandum sets forth a series of questions about possible contamination at the crime scene, in transit, and at the Laboratory. See n.115, supra. Unlike Whitehurst's dictation, in which he opined that the RDX and PETN came from Semtex or an explosive system, in the memorandum he raised the question whether the RDX and PETN may have come from contamination rather than from the aircraft remnants before they were recovered in Colombia. Whitehurst asserted that the contamination questions need to be answered before we can determine the significance of the data -- that is, before it could be determined whether the RDX and PETN came from the aircraft or from contamination.

 

Whitehurst told us that when he wrote the memorandum, I had no evidence at all about contamination. He stated, So what you've asked me is, do I know there was contamination. No, but I don't know there wasn't contamination. Whitehurst acknowledged that the contamination questions he raised were not specific to the Avianca case, but applied to any case involving organic explosives like PETN, RDX, TNT, nitroglycerine. Nevertheless, at the time of Whitehurst's March 1996 OIG interview, he had never raised these questions in any of his numerous cases, before or after Avianca, unless there was specific evidence of contamination.

 

Despite Whitehurst's assertion that he had no evidence at all about contamination when he wrote the memorandum, we think the circumstantial evidence available to him pointed to the unlikelihood that the PETN and RDX were present as a result of contamination. The RDX and PETN were both found on the same specimen, and none of the other eight specimens contained either explosive. According to Whitehurst's original dictation, and the prosecution's theory, the substances were found together because they were components of Semtex or an explosive system used in the bombing. If, instead, the specimens had been contaminated by RDX and PETN, it would have been likely that the contaminants would have been randomly distributed on the specimens, pro ducing contamination with either or both of the explosives on more than one specimen. In an OIG interview Whitehurst cited a 1995 contamination study in the Laboratory to show the real possibility of contamination there, but in that study, of the four locations that contained either RDX or PETN, none contained both substances. Although it is of course possible that there was contamination of a single specimen with two separate explosives and no other specimen was affected by either contaminant, this is not the likeliest scenario.

 

We question the manner in which Whitehurst raised the issue of contamination. We do not fault an examiner for raising a relevant issue at a late date if it does not occur to him earlier, and vigilance concerning contamination should be an integral part of the work of a forensic scientist. Here, however, the contamination questions raised in the Whitehurst Memorandum could and should have been addressed within the Laboratory before the memorandum was disseminated to a prosecutor in the middle of a trial. Hahn was knowledgeable about the procedures followed at the crime scene and how the evidence was transported to the Laboratory. Other personnel could have explained how the evidence was processed once it arrived at the Laboratory. Whitehurst should have addressed the contamination questions to these people before he disseminated the memorandum outside the Laboratory. Finally, Whitehurst should have noted in his memorandum that the lack of a random distribution of the RDX and PETN was indicative of the abse nce of contamination.

 

Since (1) the contamination issue was only indirectly relevant to contradicting the Confessor's story, (2) there was no affirmative evidence of contamination, (3) the circumstantial evidence was indicative of a lack of contamination, and (4) Whitehurst never wrote a memorandum with questions like these in any other case before or since Avianca, we conclude that Whitehurst erred when he raised the issue, in the manner that he did, for the first time in an ongoing trial.

 

Corby told us he would not have authorized the release of the information in the Whitehurst Memorandum to the prosecutor had he known Whitehurst had not contacted Hahn first. Nevertheless, it is apparent from the face of the memorandum that Whitehurst had taken no steps within the Laboratory to determine the validity of any of the contamination issues raised in the memorandum. We therefore conclude that Corby erred when he told Whitehurst to provide the information in the memorandum to the prosecutor without also directing Whitehurst to make the necessary contamination inquiries in the Laboratory first.

 

5. Circumvention of Hahn

 

Whitehurst wrote the memorandum on June 7, 1994, and gave it to Corby the next day. Corby reviewed it overnight and told Whitehurst on June 9, 1994, to give the memorandum to the prosecutor. That day Whitehurst gave the memorandum to an agent working on the case; he in turn gave it to the AUSA. Whitehurst did not consult with Hahn, or give him a copy of the memorandum, before it was disseminated outside the Laboratory.

 

Whitehurst justified his failure to consult with Hahn, or send him a copy of the memorandum, on his assertion that Hahn is a bully, will not listen to any reason at all, and does not receive information. We have already noted Whitehurst's error in failing to discuss the contamination questions with Hahn before disseminating the memorandum to the prosecutor. More generally, we conclude that Whitehurst's failure to consult with Hahn on any issue, or at least send him a copy of the memorandum, before releasing it outside the Laboratory was unprofessional.

 

IV. Conclusion

A. Hahn

 

We conclude that in the Munoz trials Hahn did not commit perjury, fabricate evidence, or intend to mislead the court. We also conclude that he committed several errors: he erroneously testified in the first trial that no dynamite could have caused the pitting and cratering on the aircraft; he gave scientific opinions correlating the pitting and cratering with a VOD range that were unsound and not justified by his experience; before the second trial, he made no inquiries about the validity of his jetting theory, even though the literature attached to the Whitehurst Memorandum conflicted with that theory; he gave incomplete testimony concerning the MAU results; he testified incorrectly and outside his expertise concerning a fuel-air explosion, the injuries to passengers, and other areas; and he slightly overstated his experience. Hahn's conduct exemplifie s the need (discussed in Part Six, infra) to train examiners to base conclusions on confirmed findings and validated theories and to testify within their areas of expertise.

B. Whitehurst

 

We conclude that Whitehurst committed several errors in connection with the Whitehurst Memorandum: he reached an invalid conclusion that an instrumental overload may have obscured the presence of NG; this error occurred because he neglected to thoroughly review the Laboratory file including the TLC results; he misstated his June 4, 1994, conversation with Hahn on a material point; he rendered a misleading and overstated opinion that suggested that his data was consistent with a potential defense; he raised questions whether contamination may account for his original findings of RDX and PETN, although there was no affirmative evidence of contamination, the circumstantial evidence was indicative of a lack of contamination, and he made no inquiries inside the Laboratory to determine whether his contamination concerns might have validity; and he released the memorandum outside the Laboratory without consulting with Hahn or at least sending him a copy. Finally, he also erred in his 1990 examination by failing to recognize the instrumental overload and run a second test. All of the errors in the memorandum tended to create problems for Hahn, the FBI, and the prosecution in an ongoing trial.

 

C. Kearney

 

We conclude that SAS Chief Kearney erred by not properly resolving the controversy raised by the Whitehurst Memorandum and by not communicating his decisions to Hahn and Whitehurst. After the second trial Kearney reviewed Hahn's testimony in that trial and felt Hahn testified outside his expertise regarding the construction of the aircraft and the injuries to the passengers. Kearney also erred by failing to discuss these matters with Hahn, and define and document the corrective action taken, to avoid such problems in the future.

 

D. Corby

 

We conclude that Corby erred when he authorized Whitehurst to release the information in the memorandum to the prosecutor without also directing Whitehurst to address the contamination questions to personnel inside the Laboratory first.

 

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