SECTION H6: CONLON CASE

 

I. Introduction

 

In 1992, James Conlon, a hydraulic crane operator, died in an explosion while working at a scrap metal yard in New Jersey. New Jersey authorities suspected that the explosion might have been caused by an explosive device sold as scrap metal by the nearby military base. New Jersey authorities asked the FBI Laboratory to attempt to determine the origins of the explosive device. Explosives Unit examiner Robert Heckman and Whitehurst conducted examinations in the case. Heckman prepared a Laboratory report in which he concluded that the explosion was caused by a very brisant high explosive consistent with those used by the military.

 

In letters to the OIG, Whitehurst alleges that Heckman made unauthorized additions to Whitehurst's dictation in the Laboratory report. Whitehurst claims that Heckman made statements about Ion Mobility Spectrometer (IMS) results and sample degradation that were outside of Heckman's expertise. Whitehurst also criticizes Heckman's reported conclusion that the explosion was caused by an explosive consistent with a military explosive. Whitehurst maintains that commercial and industrial explosives also could have caused the explosion, and therefore Heckman's conclusion was too narrow and categorical.

 

We reviewed the Laboratory reports, police reports, memoranda written by various personnel in this matter, and depositions in the underlying case. We also interviewed Assistant United States Attorney Irene Dowdy, who represented the government in the Conlon civil case, FBI Assistant General Counsel Laura Blumenfeld, former SAS Section Chief James Kearney, former MAU Unit Chief James Corby, former EU Unit Chief J. Christopher Ronay, EU examiner Robert Heckman, and Whitehurst.

 

We conclude that Heckman made improper additions to Whitehurst's dictation by adding statements outside his area of expertise to the section of the report designated Instrumental Analysis. This case illustrates the need for Laboratory policies that ensure that examiners prepare separate Laboratory reports, that reports receive meaningful and substantive review, and that disputes between examiners are effectively addressed and resolved. Finally, we note that Whitehurst acted inappropriately by accusing SAS Section Chief Kearney of seeking to suppress a memorandum Whitehurst wrote in this case.

 

II. Factual Background

 

On November 8, 1992, James Conlon died in an explosion at the Beacon scrap metal recycling yard in Freehold Borough, New Jersey. At the time of his death, Conlon was operating a hydraulic crane with a pincher arm designed to cut scrap metal. New Jersey State Police believed that Conlon may have detonated an explosive device hidden in a container in the scrap yard. Conlon died from injuries from the resulting metal fragmentation. Conlon's wife, Denise Conlon, subsequently filed a civil wrongful death action against the United States, Denise Conlon v. United States, Civ. No. 94-3140 (D.N.J.). In that lawsuit, Denise Conlon claimed that the explosion was caused by a military ordnance sold as scrap by the nearby Earle Naval Weapon Station.

 

In November 1992, New Jersey authorities sent the FBI Laboratory various fragments and items from the scene of the explosion. In their correspondence, they asked the Laboratory to [a]nalyze [the items] and identify any explosive residue, in an attempt to establish explosive device/item. Explosives Unit examiner Robert Heckman reported that he later spoke by telephone with one of the New Jersey Police bomb technicians. In that conversation, Heckman learned that the Beacon scrap yard may have accepted a live military explosive round as scrap metal from the adjacent military base. Thus, according to Heckman, the bomb technician asked him to determine if this was or could have been a military piece of ordinance [sic].

 

Heckman examined fragments from the explosion scene, but reported that he was unable to find any casing fragments that permitted him to identify the explosive device. Thus, he submitted the fragments and debris to Whitehurst for explosives residue analysis. When Whitehurst received this evidence, he also received the results of explosives residue analyses conducted at the explosion scene using a Barringer IMS. According to those analyses, the IMS detected the presence of explosives residue consistent with tetrytol, a military explosive containing tetryl and TNT.

 

After receiving the samples, Whitehurst conducted examination using the Barringer IMS as a screening test and the gas chromatograph/mass spectrometer (GC/MS) for confirmation. Whitehurst also conducted x-ray powder diffraction analysis. In his resulting dictation, Whitehurst reported that the IMS results were consistent with TNT, but because he could not confirm those results using GC/MS, he was unable to say that any explosives residue was present:

 

Gas chromatograph/mass spectrometric analysis of acetone extracts of specimens Q1, Q3 through Q5, Q10 through Q12, Q14 from Laboratory Number 21113027 and Q18 of Laboratory Number 21218030 did not detect the presence of explosives residues. The results of ion mobility spectrometric analysis of specimens Q1, Q3 through Q5, Q10 through Q12 and Q14 were consistent with the presence of trinitrotoluene (TNT) but because the TNT could not be confirmed by mass spectrometry a conclusion concerning the presence of TNT could not be rendered.

 

The results of x-ray powder diffraction analysis of specimen Q19 of Laboratory Number 21218030 are consistent with the presence of magnesium sulfate hexahydrate.

Heckman reported these results verbatim in the January 29, 1993, Laboratory report. Heckman, however, added his own observations about the IMS results from the explosion scene, as indicated in italics:

 

INSTRUMENTAL ANALYSIS:

 

Gas chromatograph/mass spectrometric analysis of acetone extracts of specimens Q1, Q3 through Q5, Q10 through Q12, Q14 from Laboratory Number 21113027 and Q18 of Laboratory Number 21218030 did not detect the presence of explosives residues. The results of ion mobility spectrometric analysis of specimens Q1, Q3 through Q5, Q10 through Q12 and Q14 were consistent with the presence of trinitrotoluene (TNT) but because the TNT could not be confirmed by mass spectrometry a conclusion concerning the presence of TNT could not be rendered.

 

The results of x-ray powder diffraction analysis of specimen Q19 of Laboratory Number 21218030 are consistent with the presence of magnesium sulfate hexahydrate.

 

It is known to this Laboratory that an Ion Mobility Spectrometer (IMS) was utilized by crime scene personnel during the crime scene investigation and an indication of Tetryl, TNT. [sic] It must be noted that an IMS is merely a screening indicator and non-confirmatory. Additional more specific instrumental examinations must be conducted in order to confirm the IMS results.

 

It is also known to this Laboratory that residues of many explosives degrade rapidly over time and may result in a negative finding even though the residues were originally present. Water, sunlight and temperature are the most common causes of sample degradation.

 

Therefore the results of the IMS test conducted at the crime scene may well have been true. However, without additional positive instrumental results this Laboratory cannot confirm the presence of these explosives.

 

CONCLUSIONS:

 

Based upon the destruction observed at the crime scene which was caused by the explosion and a physical analysis of several fragments submitted to this Laboratory it is the opinion of this examiner that the explosion was caused by a very brisant high explosive consistent with those used by the military.

In February 1995, counsel for plaintiff Denise Conlon subpoenaed Robert Heckman and Frederic Whitehurst for depositions on March 30, 1995. The purpose of these depositions was to explore statements in the Laboratory report that the explosion had been caused by a very brisant high explosive consistent with a military explosive. In preparation, Whitehurst read Heckman's Laboratory report for the first time and discovered Heckman's additions. Whitehurst wrote a ten-page memorandum to MAU Unit Chief James Corby, dated February 13, 1995, setting forth his objections to the Laboratory report. That memorandum stated in part:

 

I have reviewed the report that was written by SSA Heckman and found that he added some statements to the Instrumental Analysis Section of the report which though, I am sure, were an attempt to clarify my report, I do not agree with. SSA Heckman's addition of those statements also places him in a position of having to defend them given the new rules of discovery in civil procedure. Bob has noted that the IMS is merely a screening device; degradation of many explosives residues is rapid; water, sunlight and temperature are the most common caused of sample degradation, and that the IMS results from the other analyst may very well have been true but can not be confirmed. He is on his own on those statements.

 

Heckman has also noted that it is his opinion that the explosion was caused by a very brisant high explosive consistent with those used by the military. I agree with the statement however believe that it is too categorical, tending to narrow down the blast damage as originating from a military explosive. . . . [T]hough one may be able to say from blast damage that the explosive was a high explosive, one can not say what type of high explosive. I would have rendered an opinion that the damage was consistent with both military and industrial types of explosives.

 

Whitehurst also expressed other concerns and raised the possibility that individuals at the explosion scene may have contaminated the evidence.

 

After Corby received Whitehurst's memorandum, he brought it to the attention of SAS Section Chief James Kearney. Corby told Kearney that Heckman's conclusion was unsupportable and that Heckman was not in a position to interpret IMS data. Kearney agreed, but also criticized Whitehurst for preparing the memorandum in an unofficial format, for failing to provide a copy to Heckman, and for including personal opinion and comments in the memorandum. Kearney reportedly told Corby that he did not want the memorandum floating around to the attorneys unless necessary or requested. Corby reportedly passed on Kearney's statements to Whitehurst.

 

Kearney subsequently met with Whitehurst and Heckman. During that meeting, Heckman acknowledged that he should have concluded that the results were consistent with both a military and commercial explosive. Heckman, however, also maintained that he had not written the additional paragraphs under the Instrumental Analysis section, according to Kearney. Kearney instructed Heckman and Whitehurst to figure out who wrote the questioned paragraphs and to work out their remaining differences. The next day, Heckman sent a memorandum to Kearney acknowledging that he had written the questioned paragraphs. Heckman added that the paragraphs were not part of Whitehurst's dictation and should have appeared under a separate heading.

 

Following this meeting, Whitehurst revised the February 13, 1995, memorandum. The day before the deposition, Whitehurst showed this revised memorandum, dated March 29, 1995, to Corby and Laura Blumenfeld of the FBI Office of General Counsel (OGC). Corby reportedly told Whitehurst that he had no problems with the March 29, 1995, memorandum. Blumenfeld acknowledged to Whitehurst that the March 29, 1995, memorandum would be discoverable under the terms of the subpoena.

 

On March 30, 1995, plaintiff's counsel took Heckman's deposition. During the deposition Heckman stated that he had written the paragraphs under Instrumental Analysis based on information from the New Jersey State Police bomb technician. Heckman acknowledged that he should not have placed the paragraphs under that heading because their placement made them appear to be part of Whitehurst's dictation. Heckman also testified that he reached the conclusion that the explosion was caused by an explosive consistent with those used by the military based on the high explosive damage at the scene, including evidence of metal thinning and deformatio n. He conceded that an equal number of commercial explosives could have caused the damage, but stated that he sought to answer the specific question posed by the New Jersey bomb technician.

 

In his own deposition, Whitehurst testified that Heckman should have said that the explosion was caused by a high explosive consistent with those used by the military and industry. Whitehurst also stated that he had become so concerned about contamination from bomb technicians on the scene that he could no longer render an opinion in the case. Whitehurst then disclosed that he had written the March 29, 1995, memorandum, along with an earlier version. Whitehurst testified that he did not bring the earlier version with him, because he understood that his section chief wanted him to suppress that information. When asked to explain his use of the word suppressed, Whitehurst responded that there was a desire not to publish. And in my opinion, that is suppression.

 

Following the deposition, Whitehurst wrote a memorandum explaining his conduct in the case. In that memorandum, Whitehurst stated that Kearney did not order or suggest that Whitehurst withhold the memorandum. Laboratory Director Milton Ahlerich reviewed the matter and determined that Whitehurst's suppression allegation did not warrant further investigation.

 

III. Analysis of Whitehurst's Allegations

 

Whitehurst alleges that Heckman improperly added three paragraphs to the Instrumental Analysis section of the Laboratory report.

 

We agree that the paragraphs added by Heckman were inappropriate for inclusion anywhere in the Laboratory report, much less in the Instrumental Analysis section. By referring to the IMS results, Heckman suggested that TNT and Tetryl may have been present, even though Whitehurst expressly declined to render such a conclusion. Heckman's statement that the IMS results from the explosion scene may well have been true undercut the conclusion reached by Whitehurst. Although Heckman was apparently motivated by an intention to provide helpful information, the addition of these paragraphs made the report less, not more, clear.

 

Heckman's additions to the Instrumental Analysis section of the report also were improper because the information was clearly outside of Heckman's area of expertise. Heckman told us that he obtained information about the causes of sample degradation from Whitehurst, Steven Burmeister, and reading different books on the subject of explosives, explosive residue and so forth . . . . He said he believed that he was qualified because of his background, training, and experience to conclude that water, sunlight and temperatures are common causes of sample degradation. Contrary to his suggestion, Heckman was not qualified to interpret the unconfirmed results of explosives residue analysis from the Barringer IMS. Nor was he qualified to render an opinion about sample degradation and its causes. These areas were within the expertise of the explosives residue examiner. As an Explosives Unit examiner, Heckman was qualified to testify concerning his own forensic examinations of explosive devices and the reconstruction of explosive devices. Heckman should have left any discussion of the significance of unconfirmed IMS results to the explosives residue examiner.

 

Whitehurst also complains that Heckman's placement of these paragraphs under the heading Instrumental Analysis erroneously suggested the Whitehurst had rendered the opinion. Again, we agree with Whitehurst's criticism. During our interview with Heckman, he acknowledged that he should not have placed these paragraphs under that heading for this reason. Heckman explained that inclusion of these paragraphs under this heading was an oversight. We considered but rejected the idea that Heckman purposely sought to mislead the reader concerning authorship of the questioned paragraphs. We became concerned about this issue when we learned that Heckman initially denied even writing these paragraphs. After Whit ehurst questioned these paragraphs, however, Heckman quickly acknowledged his authorship. He also told us that he did not intend to mislead the reader on this point.

 

Whitehurst also claims that Heckman's conclusion -- that the explosion was caused by a very brisant high explosive consistent with those used by the military -- was too narrow and categorical. While Heckman's conclusion was not inaccurate, Heckman could have been more clear and complete if he had acknowledged in his report, as he did in his deposition, that the explosive could have been of military or commercial origin. There are several high explosives used in both commercial and military applications that have similar threshold detonation velocities, brisance, and capacity to inflict site damage. Heckman, by referring only to an explosive used by the military, risked conveying the erroneous impression that he had some basis for identifying the origins of the explosive as mi litary in particular. An examiner should avoid phrasing conclusions in a way that might be misconstrued.

 

In defense of his conclusion, Heckman explained that he tailored his conclusion to the specific question asked by investigators, namely, whether the explosive device could have been a military ordnance. We agree that a forensic scientist should seek to answer the specific question asked by investigators. However, examiners also should recognize when investigators have requested a conclusion or explanation that may be open to misinterpretation. In such cases, the examiner may choose to limit the conclusion to one directly supported by the data. Alternatively, the examiner may decide to provide other reasonable explanations to ensure that the significance of the conclusion is not misinterpreted. In this case, for example, Heckman could have limited his conclusion to a finding that the explosion was caused by a very brisant high explosive, or added that the explosion was consistent with both a military or commercial explosive.

 

We think this case illustrates the need for clearer Laboratory guidelines in several respects. First, Laboratory policy should have ensured that the auxiliary examiner received a copy of the Laboratory report for review before release. Such a practice would have allowed Whitehurst to discover the improper additions before Heckman distributed the report. Both Heckman and Explosives Unit Chief Ronay indicated that at the time of these events, each principal examiner decided whether to provide the final version of the Laboratory report to the auxiliary examiner. Later, in the fall of 1994, the Laboratory issued written guidelines requiring that auxiliary examiners receive tickler copies of the Laboratory report when released. However, even this policy would not have ensured review by the auxiliary examiner before distribution of the report. Thus, in our recommendations in Part Six, we recommend that th e auxiliary examiner prepare and release his or her own separate report.

 

The Explosives Unit also would have benefitted from a practice of meaningful review by Unit Chief Ronay. The evidence shows that Ronay generally conducted administrative and grammatical reviews of reports, but not substantive reviews of the conclusions. Such a practice is not acceptable in a modern Laboratory. Ronay should have questioned Heckman's conclusion that the explosive was consistent with those used by the military, since the explosives residue results were inconclusive and the report provided little basis for distinguishing between a military and a commercial explosive. Ronay also should have questioned Heckman's statement that the on-scene IMS results may well have been true, inasmuch as those results had not been confirmed. The evidence shows that Ronay's review of this Laboratory report was inadequate.

 

Additionally, the Laboratory should have had clearer guidelines in place for addressing disputes between the principal and auxiliary examiners. Those guidelines should have required that Whitehurst and Heckman discuss their differences and prepare a supplemental Laboratory report if necessary. The unit chiefs for both examiners could have reviewed that supplemental report and resolved any remaining disagreements. In the absence of such guidelines, Whitehurst initially failed to share his concerns with Heckman. Rather, he prepared a memorandum for Corby, who immediately elevated the matter to the level of Section Chief Kearney. Because Whitehurst prepared an informal memorandum, there were no procedures in place to ensure that it found its way to Heckman, the Explosives Unit Chief, or the parties in the case. The foregoing demonstrates an uncooperative atmosphere within the Laboratory that complicated this dispute and ultimately placed the Laboratory in a bad light.

 

Finally, we observe that Whitehurst unnecessarily inflamed the situation by testifying that Kearney sought to suppress his original memorandum. The evidence did not support that assertion by Whitehurst. Whitehurst testified that he made this statement based on his conversations with Corby. Corby, however, told us that he never told Whitehurst that Kearney wanted to suppress the memorandum. Corby reportedly told Whitehurst that Kearney did not want to produce the original version of the memorandum at the deposition unless requested or necessary. Thus, Whitehurst later acknowledged that Kearney had not pressured him to suppress the document. Whitehurst added, I am not an attorney and therefore can not be expected to understand all of the legal meanings of all of the words in my otherwise normal vocabular y.

 

It is difficult to credit Whitehurst's assertion that he did not understand the implications of the word suppress. Even in its ordinary sense, the word suggested that Kearney improperly sought to withhold this information. In any event, Whitehurst was both a third year law student and an experienced law enforcement witness who should have understood the implications of using the word suppress. In the opinion of Laura Blumenfeld of the FBI OGC, who attended the deposition, Whitehurst appeared to use that word to incite. The evidence supports the conclusion that Whitehurst purposely used the word suppress, aware of its implications.

 

IV. Conclusion

 

We find that Heckman made improper additions to Whitehurst's dictation by adding statements outside his area of expertise to the section of the report designated Instrumental Analysis. This case illustrates the need for Laboratory policies that ensure that examiners prepare separate Laboratory reports, that reports receive meaningful and substantive review, and that disputes between examiners are effectively addressed and resolved. Finally, the evidence shows that Whitehurst acted inappropriately by accusing SAS Section Chief Kearney of seeking to suppress a memorandum Whitehurst wrote in this case.

 

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