SECTION H11: HIGGINS' ALLEGED ALTERATION OF DICTATION

 

I. Introduction

 

In late June 1996, we asked Whitehurst about differences that we had observed between Whitehurst's dictations and the Laboratory reports prepared by Explosives Unit examiner Wallace Higgins in certain cases. Whitehurst subsequently wrote to the OIG expressing concern that Higgins may have improperly changed his dictations in these cases as well as other Laboratory cases. According to Whitehurst, these unauthorized changes to his dictations violated FBI Laboratory policy. At the time, the unwritten policy in the Laboratory required that principal examiners incorporate auxiliary examiner dictations into reports verbatim unless the auxiliary examiner agreed to the changes.

 

To determine the extent and significance of any changes, we obtained Laboratory reports prepared by Higgins in 69 Laboratory cases in which Whitehurst served as the auxiliary examiner. We also reviewed the corresponding dictations where available, along with work papers, notes, and charts where appropriate. We also interviewed former Materials Analysis Unit Chief James Corby, former Explosives Unit Chief J. Christopher Ronay, Chemistry-Toxicology examiner Ronald Kelly, former Materials Analysis Unit examiner Mary Tungol, former Explosives Unit secretary LaTonya Gadson, Whitehurst, and Higgins. During our first interview about these alleged changes, Higgins terminated the interview early and refused to voluntarily complete the interview. As a result, we had to administratively compel Higgins to appear and complete the interview.

 

We find that in 29 Laboratory cases, Higgins included Whitehurst's dictations verbatim or made insignificant transcription errors. In six Laboratory cases, Higgins altered Whitehurst's dictations without Whitehurst's authorization, but did not materially change the meaning of the dictations. In 13 Laboratory cases, Higgins prepared Laboratory reports that contained substantive changes to the meaning of Whitehurst's dictations without Whitehurst's authorization. Specifically, Higgins misreported the number of specimens that Whitehurst had examined, omitted important qualifying language from the dictations, eliminated Whitehurst's forensic opinion altogether, changed Whitehurst's findings, or identified the presence or absence of chemical compounds not identified by Whitehurst. Finally, in 21 Laboratory cases, we could not reach a conclusion as to whether Higgins changed Whitehurst's dictations because the FBI could not locate and provide Whitehurst's dictations for comparison purposes.

 

In the body and conclusion of this section, we provide the bases for our conclusions that Higgins did not have authorization to change these reports. We also make further findings and recommendations in the conclusion of this section.

 

II. Factual Background

 

As explained in Part Two of this Report, although many examiners from different units in the FBI Laboratory may work on a given Laboratory case, only one examiner, the principal examiner, issues the final Laboratory report. The auxiliary examiners submit their reports or dictations to the principal examiner for inclusion in the final Laboratory report. Before submitting their dictations to the principal examiners, auxiliary examiners provide the dictations to their unit chiefs, who edit and approve the dictations. Similarly, before issuing the final Laboratory report, the principal examiner submits the Laboratory report to his or her unit chief for review and approval. When the principal examiner issues the final Laboratory report, he or s he is supposed to send the report, dictation, and accompanying workpapers to the official FBI case file.

 

In order to compare Whitehurst's dictations as approved by his unit chief with the final Laboratory reports prepared by Higgins, we asked the FBI to provide copies of Laboratory reports, approved dictations and, in some cases, the entire official FBI case file. The FBI produced Laboratory reports prepared by Higgins in 69 Laboratory cases, but could not locate Whitehurst's dictations in 21 of those Laboratory cases. With respect to many of these 21 Laboratory cases, Whitehurst furnished copies of the dictations, which he reprinted from his computer hard drive. However, because Whitehurst prepared these computer versions of the dictations before editing and review by his unit chief, we determined that we could not rely on these computer versions of the dictations as the final, approved dictations in these cases. Therefore, we did not reach any conclusion as to whethe r Higgins altered Whitehurst's dictations without permission in these 21 cases.

 

In addition to gathering these documents, we interviewed Whitehurst, Higgins, Corby, and Ronay at length about their practice with respect to documenting changes to auxiliary examiner dictations. Whitehurst stated that if he agreed to any such changes, he would edit the dictations in his computer and reissue the dictations to his unit chief for approval. Whitehurst made clear that he would generate a new dictation for even minor changes. Corby confirmed that when MAU examiners agreed to change their dictations, they were supposed to initial the changes or prepare new dictations incorporating the changes. Corby added that he also asked his examiners to send substantial changes to him for review, although he did not recall any particular case in which Whitehurst sent such revisions to him. Corby added that he believed that when Whitehurst agreed to change his dictations, Whitehurst would generate new dictations or initial the dictations and bring them to Corby for review.

 

Higgins told us that during this period, he frequently asked Whitehurst to clarify his dictations and then incorporated the resulting changes directly in the Laboratory report. Higgins denied that he ever changed Whitehurst's dictations in substance without Whitehurst's permission. Higgins said that he would not necessarily document his conversations with Whitehurst or send Whitehurst a copy of the final Laboratory report containing the changes. Higgins observed that there was no Laboratory policy that required such documentation of these changes.

 

Ronay stated that during this time period, however, he told Explosives Unit examiners to create a record whenever Whitehurst agreed to make changes. Ronay added that to the best of his recollection, Explosives Unit examiners would document such changes by making a notation on the dictations or the Laboratory worksheets. Ronay also recalled that in 1992 or 1993, he met with Corby and SAS Chief James Kearney and agreed that examiners in the Explosives Unit would incorporate Whitehurst's reports verbatim. According to Ronay, as part of that agreement, Whitehurst was supposed to re-issue his dictations initialed by Corby if Whitehurst agreed to any changes.

 

III. Analysis of Laboratory Reports

 

The FBI produced 69 Laboratory reports prepared by Higgins between August 1990 and May 1994 in cases in which Whitehurst provided dictations. For the purpose of our analysis, we assigned sequential numbers to those Laboratory reports and grouped the reports in three categories:

 

Category One includes all Laboratory cases in which Higgins did not alter Whitehurst's dictations or made an insignificant transcription error.

Category Two includes all Laboratory cases in which Higgins altered Whitehurst's dictations without Whitehurst's authorization, but did not materially change the meaning of the dictations.

 

Category Three includes all Laboratory cases in which Higgins altered Whitehurst's dictations without Whitehurst's authorization and materially changed the meaning of the dictations.

 

As noted above, we did not attempt to analyze or categorize Laboratory reports in the 21 Laboratory cases in which the official FBI case files did not contain Whitehurst's dictations.

We list the 69 Laboratory reports, their dates, and their categories in Chart A at the end of this section. We set forth our findings in the following sections.

 

A. Category One

 

Twenty-nine Laboratory case reports fall under Category One. In most of those Laboratory case reports, Higgins presented verbatim versions of Whitehurst's dictations in the Laboratory reports. In three of the Laboratory reports, Higgins reproduced the dictations with a transcription error. See Report Nos. 19, 27, and 44. In two of these Laboratory reports, Higgins did not incorporate Whitehurst's dictations and thus did not change the dictations in any fashion. See Report Nos. 8 and 50.

 

B. Category Two

 

Six Laboratory case reports fall under Category Two, which includes Laboratory reports containing grammatical changes to Whitehurst's dictations that did not materially change the meaning of the dictations.

 

In Report No. 2, Higgins' Laboratory report reordered two sentences from Whitehurst's dictation. In Report Nos. 5 and 43, Higgins' Laboratory reports added the words specimen and specimens before the questioned sample numbers. In Report No. 15, Higgins added the words in the cans in place of in them. In Report No. 18, Higgins substituted words, made grammatical changes, and made a minor transcription error. In Report No. 45, Higgins rewrote sentences from Whitehurst's dictations. Many of these changes tended to clarify Whitehurst's dictations and thus improved them without affecting their substance.

 

Whitehurst stated that he did not give Higgins permission to make even non-substantive changes to his dictations, and that he would have generated new dictations and submitted them to Unit Chief Corby had he done so. Higgins, on the other hand, told us that in 1991 and for some time thereafter, he understood that principal examiners were permitted to make grammatical changes to auxiliary examiner dictations without authorization, as long as the changes were not substantive. Explosives Unit Chief J. Christopher Ronay likewise told us that during this time period, he would approve unilateral changes to Whitehurst's dictations as long as they did not substantively change the findings.

 

Even though the changes above did not materially change the meaning of Whitehurst's dictations, they did constitute technical violations of the Laboratory's policy requiring verbatim reporting of dictations. We do not conclude that Higgins purposely violated Laboratory policy, however, because it appears that Ronay authorized Explosives examiners to make such non-substantive changes. In this respect, Ronay was at fault for allowing Explosives Unit examiners to unilaterally make changes they determined to be nonsubstantive, since Explosives Unit examiners lacked the qualifications to determine whether changes to explosive residue analyses are substantive and such changes violated the rule requiring verbatim inclusion of dictations.

 

C. Category Three

 

Thirteen Laboratory reports fall under Category Three, which includes Laboratory reports in which Higgins changed the meaning of Whitehurst's dictations without authorization. In these reports, Higgins misreported the number of specimens that Whitehurst had examined (Report No. 34), omitted important qualifying or explanatory language from the dictations (Report Nos. 13, 16 and 36), eliminated Whitehurst's forensic opinion altogether (Report Nos. 20, 22, 35, 36, 46, and 47), changed Whitehurst's findings (Report Nos. 17, 20, 34, and 46), or identified the presence or absence of chemical compounds not identified by Whitehurst (Report Nos. 17, 20, 30, 37, 42, and 47).

 

1. Report No. 13. With respect to Report No. 13, Higgins omitted important explanatory language from Whitehurst's dictation. Whitehurst stated in his dictation, in part:

 

The results of chemical and physical analysis of specimen Q1 are consistent with the presence of residues of a low explosive mixture based on perchlorate and nitrate oxidizers. Such residues could have resulted from commercial and homemade perchlorate flash powders initiated with a black powder fuse or a low explosive mixture composed of nitrate and perchlorate oxidizers.[]

 

Higgins omitted the underscored clause and simply reported: Such residues could have resulted from commercial and/or homemade perchlorate flash powders.

 

Higgins told us that he would not have omitted the underscored passage without Whitehurst's permission. However, Whitehurst stated that he did not authorize the omission of this passage. Whitehurst indicated that he purposely included this clause to explain the presence of the nitrate ions in the residues. It is unlikely that Whitehurst agreed to remove the passage. The resulting Laboratory report suggests that a commercial and/or homemade perchlorate flash powder alone could have been the source of the nitrate ions seen by Whitehurst. Whitehurst clearly knew that straight flash powder could not be such a source. The evidence indicates that Higgins omitted this language without authorization from Whitehurst.

 

2. Report No. 16. In Report No. 16, Higgins again omitted explanatory language. In his dictation, Whitehurst stated in part: The results of preliminary chemical and physical analysis of specimen Q1 are consistent with the presence of TNT. Report No. 16, however, omits the word preliminary and states: Instrumental and physical analysis of specimen Q1 are consistent with the presence of Trinitrotoluene (TNT).

 

Higgins could not recall the circumstances that prompted removal of the word preliminary, but acknowledged that such a change would be substantive. On the other hand, Whitehurst stated that he did not change the report. Whitehurst also reviewed the official FBI case file and found no evidence that he had agreed to remove the word preliminary. By designating the results as preliminary, Whitehurst told the reader that the results were not confirmed and therefore additional testing was needed. The omission of the word preliminary in Report No. 16 made the testing appear more complete than it actually was. We think that Higgins erred in omitting this qualifyin g language.

 

3. Report No. 17. Report No. 17 contains two substantive changes to Whitehurst's dictation. First, Whitehurst reported in his dictation:

 

The results of chemical and physical analysis of specimen Q4 are consistent with the presence of components of a blasting cap composed of a PETN base charge, polyvinylchloride insulated leg wires and an electric match composed in part of zirconium.

 

In Report No. 17, however, Higgins reported: Instrumental analysis of the main charge inside the detonator reveals it as pentaerythritol tetranitrate (PETN).

 

When we asked Higgins about this passage, Higgins could not recall how this change had occurred. Higgins observed that Report No. 17 is dated October 3, 1991, and Whitehurst's dictation is dated October 23, 1991. Thus, Higgins suggested that he possibly received this information verbally from Whitehurst before Whitehurst issued his dictation. Whitehurst, however, doubted that he verbally communicated any results to Higgins. Whitehurst also could not explain the discrepancy between his dictation and Report No. 17. Given this record, and especially the dates of these reports, we are unable to determine whether Higgins received and purposely changed Whitehurst's dictation regarding PETN.

 

In the same dictation, Whitehurst also reported: No indication of the presence of lead organic primary explosive was found. Report No. 17 did not include this sentence, but instead reported: An electrical match inside the detonator initiates lead styphnate and lead azide which in turn initiates the PETN. Higgins explained that he added this statement based on his own x-ray work showing a high density material. When pressed, Higgins acknowledged that his x-ray work did not specifically identify lead azide and lead styphnate. Higgins also stated that it would have been more correct to report that the electric match in a detonator commonly initiates lead styphnate and lead azide. We agree that Higgins' statement is not supportable in this case. Higgins could not determine from an x-ray image alone that the high density material was lead styphnate and lead azide. Furthermore, Higgins had no reason even to suggest that lead compounds might be present, absent some indication from the chemical analyses by Whitehurst. Higgins erred in adding this sentence.

 

4. Report No. 20. With respect to Report No. 20, Higgins misreported Whitehurst's findings and omitted part of Whitehurst's forensic opinion. Specifically, Whitehurst reported in his dictation:

 

The results of these analyses [of specimens K1 and K2] are consistent with the presence of a mixture of aluminum powder, sulfur and potassium perchlorate. The combination of these materials form a low explosive/energetic mixture generally referred to as flash powder.

 

Higgins included this paragraph, but then added the following in Report No. 20:

 

The two items in specimen K1 contained approximately 45.4 grams and 41.9 grams of flash powder. The two items in specimen K2 contained approximately 3.7 grams and 4.3 grams of flash powder.

 

Additionally, while Whitehurst reported that he could not confirm the presence of perchlorate ions on specimen Q1, Higgins went farther and added that no low explosive energetic material residue could be detected on specimen Q1. Whitehurst reported that he did not authorize these changes.

 

Higgins acknowledged that he made these changes to Whitehurst's dictation without conferring with Whitehurst. Higgins stated that we were splitting hairs and arguing semantics by suggesting that these alterations changed the meaning of the dictation. Higgins added that he reported the absence of all low explosives energetic materials based on his assumption that Whitehurst had looked for and failed to find any such materials. Higgins also told us that he did not think that these changes would raise an issue if the matter went to trial, since he and Whitehurst could simply testify to their respective opinions.

 

Contrary to Higgins' suggestion, these changes would be difficult to explain at trial. While Whitehurst only reported results consistent with flash powder, Higgins indicated that the Laboratory had positively identified flash powder in specimens K1 and K2. Similarly, while Whitehurst ruled out only perchlorate ions, Higgins reported the absence of all low explosive energetic materials, including perchlorate compounds and many other materials. Higgins erred in altering Whitehurst's dictation.

 

Additionally, with respect to Report No. 20, Higgins failed to include the following underscored sentence from Whitehurst's dictation:

 

Residue from specimen Q1 was analyzed with high performance liquid ion chromatography and capillary ion electrophoresis. These analyses could not confirm the presence of perchlorate ions. Therefore an opinion can not be rendered concerning the possible common origin of the flash powder mixtures found in K1 and K2 and the energetic material which caused the explosive damage found on items in specimen Q1.

 

Higgins could not explain why this sentence was omitted. Higgins stated that he would not have omitted the sentence without first speaking with Whitehurst. Whitehurst, on the other hand, told us that he would not have authorized the removal of this sentence. As will be seen, this is only one of several cases involving the selective omission of Whitehurst's forensic opinion. Given this pattern and Whitehurst's statement, we think that Higgins erroneously omitted Whitehurst's opinion in Report No. 20 without authorization.

 

5. Report No. 22. With respect to Report No. 22, Higgins again omitted a sentence from the dictation that expressed Whitehurst's forensic opinion. Specifically, Higgins omitted the following underscored sentence:

The results of the analyses are consistent with the presence of residues of double-based smokeless powder.

 

It is the opinion of this examiner that the energetic material utilized in specimens Q1 and Q2 was at least in part double based smokeless powder.

Higgins told us that he did not recall the circumstances leading to the removal of this sentence. Higgins stated that he would have spoken with Whitehurst before making such a change. Higgins added that he did not consider the change to be substantial because Whitehurst said the same thing in the prior sentence. Whitehurst told us that he did not authorize the omission of this sentence and considered this to be a substantial change. Whitehurst added that he purposely stated that the specimen was in part a double-base smokeless powder because his chemical analysis could not exclude the possibility that other materials were present before the explosion.

 

By using this language, Whitehurst signaled to the reader that other chemicals could have been present. The two sentences were not repetitive, since Whitehurst reported his findings in one sentence and his forensic opinion based on those findings in the next. Thus, we consider this change to be substantive. In view of Whitehurst's insistence that he purposely included this language, we think that Higgins omitted this sentence erroneously.

 

6. Report No. 30. In Report No. 30, Higgins reported a more positive identification of explosive material than authorized by Whitehurst. Specifically, Whitehurst prepared the following dictation with respect to specimen Q1 in Report No. 30:

 

The results of these analyses are consistent with the presence of a moldable plastic explosive composed of 95% cyclotrimethylene-trinitramine (RDX), 2% poly (vinyl isobutyl ether) and the remainder a hydrocarbon oil and small amounts of phthalate plasticizer. The RDX explosive portion was not contaminated with HMX.

 

Higgins reproduced this dictation verbatim in Report No. 30 under the heading, Instrumental Analysis, but then immediately added: These results are consistent with a PE-4A explosive manufactured in Portugal.

 

Whitehurst told us that he did not authorize the addition of this sentence. Whitehurst added that he did not have sufficient information about the formula for Portuguese PE-4A to permit him to make this statement. Higgins acknowledged that he did not obtain Whitehurst's permission to include this sentence, but stated that the sentence reflected his own opinion after examining the wrapper containing specimen Q1. Specifically, Higgins told us that the wrapper referred to PE-4A and SPE or Society of Portuguese Explosives. Higgins added that he was aware that the Laboratory had previously detected PE-4A in similar wrappers.

 

We think that Higgins' identification of the material as consistent with Portuguese PE-4A was potentially misleading. By placing this sentence under the heading, Instrumental Analysis, and referring to [t]hese results, Higgins suggested that the examiner performing the instrumental analyses (Whitehurst) had determined that the chemical results were consistent with Portuguese-manufactured PE-4A. In fact, Higgins had reached that conclusion based primarily on the wrapper, not the particular chemical results obtained by Whitehurst. If Higgins wished to include this opinion, he should have separately reported the information as his own opinion and more clearly identified the basis for the opinion.

 

7. Report No. 34. In Report No. 34, Higgins misreported the number of specimens that had been examined and identified compounds more positively than reported by Whitehurst.

 

Specifically, in connection with Report No. 34, the Laboratory received two electric blasting caps (detonators) labeled specimens Q3 and Q4. Whitehurst examined only specimen Q4 and reported in his dictation:

 

The results of chemical and physical analyses of specimen Q4 are consistent with the presence of explosive materials found in a blasting cap composed of a PETN high explosive base charge, lead azide and lead styphnate primary explosive and an initiating material based on a nitrate/chlorate low explosive mixture.

 

In Report No. 34, however, Higgins rewrote Whitehurst's dictation and, referring to specimens Q3 and Q4, reported:

 

The results of chemical and physical analyses of the components of the detonators determined they have a base charge composed of PETN with lead azide and lead styphnate used to initiate the PETN. The material used to initiate the lead styphnate and lead azide is a nitrate/chlorate low explosive mixture.

Higgins told us that he made this change after a lengthy discussion with Whitehurst. During that discussion, according to Higgins, Whitehurst stated that specimens Q3 and Q4 looked the same, and therefore Whitehurst only analyzed one of the specimens. Whitehurst, however, told us that his notes did not reflect any discussion with Higgins about specimens Q3 and Q4. Moreover, Whitehurst stated that one could not safely assume that specimens Q3 and Q4 were identical without examining both specimens. We think that Higgins erred in writing Report No. 34 to indicate that both detonators had been examined. By his own admission, Higgins knew that Whitehurst had not examined the detonator labeled specimen Q3. Higgins should have reported Whitehurst's dictation as written or requested new dictation from Whitehurst concerning specimen Q3.

 

Additionally with respect to Report No. 34, Whitehurst reported in his dictation that the material in the detonator was consistent with the presence of explosive materials found in a blasting cap composed of a PETN high explosive base charge, lead azide and lead styphnate primary explosive and an initiating material based on a nitrate/chlorate low explosive mixture. Whitehurst further reported that the lead wires and the end cap were consistent with the presence of polyvinylchloride. Higgins, however, reported that the detonators have a base charge composed of PETN with lead azide and lead styphnate, that the initiating material is a nitrate/chlorate low explosive mixture, and that the insulation and end cap are composed of polyvinylchloride.

 

Higgins stated that he would not have changed or rewritten the dictation without conferring with Whitehurst. Whitehurst, however, was clear that he did not authorize these changes. In view of Whitehurst's statement and in the absence of any documentation of such a change, we conclude that Higgins altered Whitehurst's dictation without authorization. Higgins should have reproduced Whitehurst's dictation verbatim or asked Whitehurst to prepare additional dictation.

 

8. Report No. 35. With respect to Report No. 35, Higgins made grammatical changes to Whitehurst's dictation and omitted the underscored opinion that appears in Whitehurst's dictation:

 

. . . These analyses identified the presence of Pyrodex propellant in specimen Q5. The results of analyses of material on specimen Q2 are consistent with the presence of residues of Pyrodex propellant.

 

It is the opinion of this examiner that the energetic material originally found in specimens Q2 and Q5 consisted in part of Pyrodex propellant. Pyrodex is a commercial propellant manufactured by Hodgdon Powder Company. This propellant can function as a low explosive if properly confined and initiated.

 

Higgins could not explain why the underscored sentence was not in Report No. 35. Higgins stated that he would have talked to Whitehurst before removing the sentence. Whitehurst, however, told us that he would not have authorized the removal of the sentence. Whitehurst stated that he could not exclude the possibility that black powder was present with the Pyrodex, and therefore he purposely stated that the specimens consisted in part of Pyrodex. Given this explanation by Whitehurst, we think that Whitehurst did not agree to omit this opinion sentence. Higgins erred in not reproducing Whitehurst's dictation as written.

 

9. Report No. 36. In Report No. 36, Higgins omitted Whitehurst's forensic opinion and other explanatory language. Specifically, the following underscored sentences that appear in Whitehurst's dictation were omitted from Report No. 36:

 

The presence of chloride, nitrite, nitrate, sulfate and carbonate ion in the explosive residues is consistent with residues of smokeless powders, nitrate/sulfur/hydrocarbon energetic mixtures and also with naturally occurring materials. The relatively large abundance of carbonate in these residues is also consistent with the use of a hydrocarbon based, nonefficient energetic mixture. Such mixture might include improvised explosive components which were combined in improper ratios leading to inefficient reaction. When such inefficient energetic materials are initiated, the post initiation residues normally contain unreacted hydrocarbon fuels such as sugar, vaseline or charcoal. Microscopic examination did not reveal any of these materials on the specimens examined but their absence does not preclude their having been there in the original energetic mixture.

 

Whitehurst told us that he did not authorize any changes to this dictation.

 

Higgins stated that he could not explain why these sentences were omitted from Whitehurst's dictation. Higgins recalled that he asked Ronay to review the dictation because another sentence in the dictation encroached upon Higgins' area of expertise. Higgins told us that he gave the dictation to Ronay and [w]hat happened after that, I don't know . . . .

 

Ronay, however, told us that he did not recall the circumstances leading to the removal of these sentences. Ronay acknowledged that he thought Whitehurst expressed opinions outside of his area of expertise when Whitehurst wrote about possible explanations for the presence of residues, and therefore Ronay did not consider the removal of such opinions to be a substantial change. However, Ronay stated that he did not recall if he authorized Higgins to omit such an opinion. Ronay also told us that he would not have changed Whitehurst's dictation without consulting Whitehurst or Corby.

Contrary to Ronay's suggestion, the omission of Whitehurst's forensic opinion was a substantive change. In this case, Whitehurst reported in that opinion that he could not identify certain unreacted hydrocarbon fuels through microscopic examination, but concluded that their absence did not necessarily preclude their presence in the original mixture. Although somewhat speculative, this information was potentially useful in assessing the likelihood that the material was a hydrocarbon based mixture. As the principal examiner who prepared Report No. 36, Higgins was responsible for reviewing the report and ensuring that it included all required dictation, including the missing forensic opinion, before he issued the report. Given this fact, and the repeated omission of such forensic opinions, the preponderance of evidence shows that Higgins omitted Whitehurst's forensic opinion or at least concurred in its omission.

 

Additionally, in Report No. 36, the Laboratory report prepared by Higgins omitted the following, underscored language:

 

The presence of lithium ions is somewhat unique, having been detected by this examiner in explosives residues only one other time during the past six and one half years.

 

Whitehurst again told us that he did not authorize the omission of this language. Higgins stated that he did not think that he omitted this language. The underscored language indicates how rare such lithium ions are in this type of case, and provides potentially useful information to investigators and others. Because Higgins appeared certain that he did not remove this language, we do not conclude that he did so. Higgins was responsible for ensuring that the Laboratory report contained all required dictation, however, a responsibility that he did not meet in this case.

 

10. Report No. 37. In Report No. 37, Higgins added a sentence concerning the absence of accelerants to the section of the Laboratory report containing Whitehurst's dictation, although Whitehurst did not perform any accelerant examination.

 

Specifically, in Report No. 37, Higgins added the following paragraph under the heading, Analysis of Residues :

 

An examination of submitted specimens failed to detect the presence of accelerant however, they may also have never been present; they may have evaporated during transport and storage; or may be present in undetectable amounts.

 

When asked about the origins of this paragraph, Higgins stated that he asked Whitehurst to check for both explosive residues and accelerants and Whitehurst reported verbally that he had found no accelerants. Higgins stated that he may have typed this paragraph as Whitehurst verbally reported these findings to him.

 

Whitehurst, however, told us that he was not qualified to do accelerant analysis and did not do any accelerant analysis in this case. Whitehurst observed that the Chemistry-Toxicology Unit (CTU) had responsibility for conducting such accelerant analyses. Whitehurst speculated that if Higgins had raised the issue of accelerants, Whitehurst might have asked CTU examiner Ronald Kelly whether it was possible to detect accelerants on the specimens. If Kelly said that it was not possible to detect such accelerants, Whitehurst might have passed on that information to Higgins.

 

The evidence suggests, at best, that Whitehurst and Higgins had a miscommunication with respect to Report No. 37: Whitehurst possibly told Higgins that it would be fruitless to conduct accelerant analyses; Higgins may have understood that Whitehurst had analyzed the evidence for accelerants without success. In any event, Higgins should not have added to Whitehurst's dictation without Whitehurst's express permission, but should have reported Whitehurst's dictation verbatim or requested new dictation from Whitehurst.

 

11. Report No. 42. In Report No. 42, Higgins identified the presence of chemical compounds that Whitehurst did not identify. Specifically, in the dictation for Report No. 42, Whitehurst reported only that a sample from the main charge consists of approximately 94% RDX high explosive. . . . In Report No. 42, however, Higgins reported: "The results of an [sic] instrumental analyses of the main charge reveals that it consists of approximately 94% RDX and 6% binders. Higgins also made extensive grammatical changes to Whitehurst's dictation in Report No. 42. Likewise, in a subsequent Laboratory report in the same case, Higgins reported: "The results of an [sic] instrumental analyses of the RDX [sic] revealed that it consists of approximately 94% RDX and 6% plastic izers (binders). See Report No. 17.

 

Whitehurst told us that he did not authorize Higgins to identify the remaining composition of the main charge as 6% binders or 6% plasticizers (binders). Whitehurst added that he did not include such an opinion himself, because he was unclear as to the remaining composition of the main charge. Whitehurst, however, stated that he viewed this addition as not that big a deal. Nevertheless, Higgins was not qualified to report that the remaining constituents were 6% binders, plasticizers, or any other material. Higgins improperly rendered an opinion concerning the remaining chemical composition of the main charge and improperly incorporated that opinion into a sentence reflecting the results of the instrumental analysis.

 

12. Report No. 46. In Report No. 46, Higgins omitted a sentence expressing Whitehurst's opinion and changed Whitehurst's finding. Specifically, the dictation prepared by Whitehurst for Report No. 46 read in part:

 

It is the opinion of this examiner that the device represented by specimen Q1 was composed of a pipe bomb filled with a main charge of Pyrodex and initiated with a red colored hobby fuse.

 

In Report No. 46, however, Higgins replaced this sentence with the following:

 

These results are consistent with a pipe bomb containing a main charge of Pyrodex and initiated with a red colored hobby type burning fuse.

 

The report prepared by Higgins also contained grammatical changes.

 

Higgins stated that he did not recall making these changes. Higgins also told us that he did not know why he substituted the phrase consistent with for composed of. Higgins indicated that he probably showed Whitehurst's dictation to Ronay because he felt that Whitehurst was venturing into his area of expertise by describing the device. Whitehurst, on the other hand, told us that he did not authorize these changes to his dictation. Whitehurst added that he would have had his unit chief approve any such changes to his dictation. In view of Whitehurst's statements and the absence of any documentation supporting these changes, we conclude that Higgins erred in not reproducing Whitehurst's dictation verbatim.

 

13. Report No. 47. In Report No. 47, Higgins omitted Whitehurst's forensic opinion and also reported the absence of chemical compounds not mentioned by Whitehurst. Specifically, Higgins omitted the following underscored sentences that appear in Whitehurst's dictation:

 

The results of chemical analyses of specimen Q3 are consistent with the presence of RDX high explosive.

 

Chemical analyses of specimen Q6 did not find any RDX high explosive.

 

It is the opinion of this examiner that RDX found on specimen Q3 could have come from PE-4A high explosive. PE-4A is a British explosive which according to information held by the FBI Laboratory records contains RDX.

Higgins told us that he discussed the underscored paragraph with Whitehurst. According to Higgins, he suggested that Whitehurst remove the paragraph because the British explosive is called PE-4, not PE-4A and because the RDX on specimen Q3 could have come from other explosives as well. Whitehurst, however, did not recall authorizing the removal of this paragraph. Whitehurst stated that if he had agreed to the change, he would have documented this change by having Corby approve new dictation. In view of Whitehurst's statements and the absence of any documentation of this change, we think that Higgins erred in not reporting Whitehurst's dictation verbatim or requesting new dictation from Whitehurst.

 

Additionally, Whitehurst reported in his dictation for Report No. 47 that the [c]hemical analysis of specimen Q6 did not find any RDX explosive. Higgins, however, replaced this sentence in Report No. 47 with the following:

Specimen Q6, a [sic] residue obtained from a pair of men's black slip-on shoes, size 12, labeled Lidfort and made in Italy, was chemically analyzed and no trace of RDX or any organic or inorganic explosive was found.

 

Higgins told us that he would not have referred to organic or inorganic explosives without checking with Whitehurst. Whitehurst, however, stated that he did not authorize this addition to his dictation and could not explain how Higgins reached this conclusion. Whitehurst reviewed the case file for Report No. 47 and did not find any indication that he had altered his dictation in response to a request from Higgins. In view of Whitehurst's statement that he did not authorize this addition and the absence of any documentation, we conclude that Higgins again improperly changed Whitehurst's dictation.

 

D. The Remaining 21 Laboratory Reports

 

The FBI could not locate and produce Whitehurst's final and approved dictations for comparison purposes in 21 Laboratory cases. The FBI told us in a letter that

 

[a]ny of the following could explain the absence of a document, such as signed AE dictation, from a Bureau file: the person responsible for sending the document to the central files failed to do so; the document was sent to be filed but did not reach the file room; and the document reached the file room but was misfiled. FN: Although it would be improper for an employee to remove a properly filed document from a file, this is a possibility.

 

Higgins likewise told us that he did not know where we might look for missing dictations at this time. Higgins stated that he generally placed the auxiliary examiner's dictations in the official FBI case file or sent them to the official FBI case file with a routing slip. Higgins added that the dictations may have been submitted as an exhibit at trial, although he considered that possibility to be unlikely. Higgins acknowledged that it was the principal examiner's responsibility to send the auxiliary examiner's dictations to the official FBI case file.

 

Absent these dictations, we could not determine whether Higgins made changes in these 21 Laboratory cases.

 

IV. Conclusion

 

We reviewed Laboratory reports prepared by Higgins in 69 Laboratory cases in which Whitehurst served as an auxiliary examiner. In 29 Laboratory cases, Higgins either did not change Whitehurst's dictations or made insignificant transcription errors. In six Laboratory cases, Higgins altered Whitehurst's dictations without Whitehurst's authorization, but did not materially change the meaning of the dictations. In 13 Laboratory cases, Higgins prepared Laboratory reports that contained material changes to the meaning of Whitehurst's dictations without Whitehurst's authorization. In these reports, Higgins misreported the number of specimens that Whitehurst had examined (Report No. 34), omitted important qualifying or explanatory language from the dictations (Report Nos. 13, 16 and 36), eliminated Whitehurst's forensic opinion altogether (Report Nos. 20, 22, 35, 36, 46, and 47), changed Whitehurst's findings (Report Nos. 17, 20, 34, and 46), and identified the presence or absence of chemical compounds not identified by Whitehurst (Report Nos. 17, 20, 30, 37, 42, and 47). We were not able to reach conclusions regarding the remaining 21 Laboratory reports, because the FBI could not locate and produce Whitehurst's dictations for comparison purposes.

 

Our efforts to identify which dictations had been changed without authorization were hampered by conflicting statements from Higgins and Whitehurst. Higgins repeatedly told us that he never changed Whitehurst's dictations in substance without permission from Whitehurst. Higgins explained that he had a gentlemen's agreement with Whitehurst that permitted him to substantively alter the dictations after conversing with Whitehurst. On the other hand, Whitehurst repeatedly told us that he did not authorize the changes made to his dictations. Whitehurst also denied that he ever had any gentlemen's agreement with Higgins. Whitehurst told us tha t if he had agreed to make substantive changes to his dictations, he would have documented the changes or submitted those changes to his unit chief for approval. We noted that Whitehurst had documented his changes on the face of the dictations in some of the cases. In other instances, Whitehurst observed that his underlying data did not support the changed dictations and therefore he would not have agreed to alter the dictations.

 

In most of these cases, we were not persuaded by Higgins' assertion that he obtained Whitehurst's permission before making substantive changes to the dictations. Contrary to this assertion, Higgins acknowledged during our interviews that he made what we considered to be substantive changes without permission in some of these Laboratory cases. See Report Nos. 17, 20, 34, and 37. As to the remaining Laboratory cases, Higgins told us that he had no idea how or why the changes occurred. We recognize that these events occurred between three to six years earlier, but we find it difficult to accept that Higgins had no explanation for so many of the changes in Laboratory reports, which, it must be recalled, were prepared by him. In contrast, Whitehurst could point to specific reasons why he would not have agreed to change his dictations in many of these cases. Finall y, Higgins' credibility suffered because, when we showed him changes to dictations that were clearly substantive, Higgins refused to agree that the changes were significant or even acknowledge that the changes might pose a problem if those matters ever went to trial.

 

In view of our findings that Higgins made substantive changes to Whitehurst's dictations without permission, we think that the Laboratory should take certain remedial steps. Laboratory management should designate a qualified explosives examiner to review these reports and consider whether to prepare amended reports and advise the submitting agencies of the unauthorized changes. Laboratory management also should make every effort to locate the missing 21 dictations to determine if the corresponding Laboratory reports contain substantive changes.

 

Additionally, given Ronay's statements that he authorized non-substantive changes to Whitehurst's dictations and the omission of Whitehurst's opinions in some cases, we strongly recommend that the Laboratory review all Explosives Unit reports in cases in which Whitehurst served as an auxiliary examiner to determine whether other unauthorized changes occurred. If so, Laboratory management should consider whether, depending on the seriousness of the alterations, additional remedial steps should be taken in those cases.

 

Finally, we think that the manner in which the FBI maintained its official case files in this matter deserves comment. In reviewing those files, we found their organization to be somewhat incoherent. It was difficult to determine if all of the necessary records were present, and the absence of Whitehurst's approved dictations in 21 of the 69 Laboratory cases we reviewed suggests that records in a significant number of cases have been lost. Our review convinces us that an examiner may find it difficult to effectively prepare for trial by reviewing some of these case files. The official FBI case files should be sufficiently complete so that a qualified examiner can understand the examinations performed, the results obtained, and the bases for those results. In Part Six of this Report, we make recommendations that would go far toward alleviating the case documentation problems we encountered.

 

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