PART FIVE: FINDINGS AND RECOMMENDATIONS CONCERNING INDIVIDUALS

 

This part summarizes the OIG's findings and recommendations with respect to various individuals, including Whitehurst and those he has accused of misconduct or other impropriety. Our recommendations reflect the analysis and conclusions presented earlier in this Report, and the different parts of the report should be read together. Moreover, our recommendations are based solely upon facts found in this investigation. Any disciplinary action or other personnel decisions resulting from these recommendations may properly take into account other factors relating to the person's employment history and record. We further understand that the Brady review team within the Criminal Division of the United States Department of Justice will review these findings and recommendations to determine what disclosure should be made in particular cases.

 

Section I of this part addresses persons who have been the subject of Whitehurst's most serious allegations, including that certain examiners have fabricated evidence, perjured themselves, or otherwise engaged in misconduct. In this section, we also discuss other individuals whose conduct we think merits critical comment. Section II addresses the conduct of particular Laboratory managers. The third section of this part discusses, in alphabetical order, other persons who were named in allegations by Whitehurst. Section IV briefly summarizes our findings concerning allegations made by Whitehurst that individuals in the FBI Office of Professional Responsibility (FBI OPR) or the FBI Office of General Counsel (OGC) either failed properly to investigate certain allegations made by W hitehurst or have engaged in retaliation against him. Section V concludes this part with our findings and recommendations regarding Whitehurst.

 

Before turning to our discussion of particular individuals, we comment briefly on an allegation that persons other than Whitehurst raised during our investigation concerning alcohol consumption by examiners in the Explosives Unit. We questioned several witnesses about this matter. Some persons recalled that alcoholic beverages had been available during holiday office parties within the EU, but this practice ceased as result of directives imposed after Mr. Freeh became the FBI Director. Others recalled that examiners had consumed alcoholic beverages with meals or after hours. We did not identify any particular instance where an EU examiner was drinking while on duty or an examiner's work performance was impaired because of consumption of alcohol.

 

I.Individuals Central to Whitehurst's Allegations or Whose Conduct is Criticized in this Report

 

This section begins with a discussion of Terry Rudolph, followed by our findings concerning CTU Chief Roger Martz, EU Chief J. Thomas Thurman, and EU examiner David Williams. The remainder of this section discusses other individuals in alphabetical order.

 

A.Terry Rudolph

 

Terry Rudolph worked as an explosives residue examiner in the Laboratory from 1979 until 1988, when he began teaching at the FBI Academy in Quantico, Virginia.

 

As we explained in Part Three, Sections A and H9, we conclude that Terry Rudolph failed to conduct appropriate scientific analyses or to adequately document his work in the Psinakis case, in the UNABOM investigation, and in a substantial number of other cases in which he performed examinations while working in the Laboratory. The fact that unit chiefs approved conclusions reached by Rudolph or gave him favorable performance reviews does not excuse the shortcomings we noted in our investigation; instead, it suggests that the Laboratory failed appropriately to supervise Rudolph. The Laboratory did not adequately discipline him in 1992 when he was orally admonished for the condition of his files. Rudolph should then have been more severely disciplined. A notation concerning this Report's findings should be placed in each case file in which Rudolph was the principal or auxiliary examiner.

 

In light of Rudolph's performance and his views about how analyses should be performed and case work documented, we conclude that Rudolph should not be teaching others about forensic science. If Rudolph were still in the Laboratory Division, we would recommend his removal from that Division. Rudolph has retired from the FBI, but we understand he later did some work at Quantico on a contractual basis. We recommend that the FBI not employ Rudolph in any capacity in the future.

 

B.Roger Martz

 

Roger Martz became an examiner in the CTU in 1980 and has been the chief of the CTU since July 1989. Based on our investigation, we criticize certain of Martz's actions both as a supervisor and as an examiner in particular cases.

 

In 1989, Martz as the CTU Chief reported the results of his review of 95 of Rudolph's cases in a manner that misleadingly suggested that Martz had reviewed the technical sufficiency of Rudolph's work and found it adequate and that he also approved Rudolph's work in Psinakis. As noted in Part Three, Section A, Martz conducted his review after former MAU Chief Jerry Butler had found numerous administrative shortcomings in a preliminary review and had recommended an in-depth review because of the serious impact these weaknesses could have on the administration of justice.

 

Martz reviewed 95 of Rudolph's cases and described his findings in a memorandum which referred to Butler's earlier review. In the memorandum, Martz characterized his review as a technical review, stated that the analyses were sufficient and that no technical errors had been found in the final reports, and noted that while other techniques could have been employed, it is believed that no changes would be made in the reporting of the reviewed cases. Martz recommended that no further technical reviews be performed of Rudolph's work.

 

The language in Martz's memorandum was misleading. Martz stated in the memorandum that the analyses were sufficient, yet he admitted to the OIG in this investigation that he had not reviewed whether Rudolph's work was analytically sufficient to support the stated conclusions. Indeed, Martz acknowledged to us that in some case files there was little or no documentation to review. Given the limited review that Martz conducted and the fact that Butler had already identified the need for an in-depth review, Martz could not properly conclude and should not have recommended that no further review be conducted.

 

Problems with the adequacy of his review are partly attributable to the fact that SAS Chief Kenneth Nimmich did not give Martz written instructions concerning the objective or methodology of the review. Nonetheless, whatever instructions he received, Martz worded his memorandum in a misleading way that obscured serious deficiencies in Rudolph's work. Nimmich erroneously relied on Martz's memorandum in concluding in 1989 that a further review of Rudolph's work was unnecessary. Martz's misleading wording thus contributed to the Laboratory's failure to adequately review and resolve the allegations about Rudolph. As a supervisor, Martz should have recognized the seriousness of the concerns noted in B utler's memorandum and the need for them to be adequately addressed.

 

In the Trepal case, discussed in Part Three, Section H13, we found that Martz overstated the significance of his analytical results by testifying he had concluded thallium nitrate had been added to three samples of Coca-Cola identified as Q1, Q2, and Q3. Given the tests that Martz actually performed, he could have properly stated in his dictation and testimony that two samples of Coca-Cola, identified as Q1 and Q2, were consistent with thallium nitrate having been added to them. Alternatively, he correctly could have observed that Q1 and Q2 had elevated levels of thallium and nitrate ions as compared to unadulterated Coca-Cola. He did not limit his testimony this way.

 

Martz's work in the Trepal case was deficient in several respects: (1) his dictation stated that the nitrate ion was identified in samples Q1 through Q3 and those samples were consistent with thallium nitrate having been added to them; this was incorrect insofar as he had not performed tests necessary to reach these conclusions with regard to Q3; (2) Martz did not acknowledge certain data obtained from the tests he performed; (3) he failed to perform additional tests that were appropriate under the circumstances; (4) in testifying, Martz improperly offered a stronger opinion about the identification of thallium nitrate than he had expressed in the dictation reviewed by his supervisor and included in the Laboratory report; (5) Martz did not adequately document his work, his cases notes were incomplete, undated and inaccurate, and the charts were not accurately or clearly labeled; (6) he lacked a sufficient analytical basis to opine that a bottle containing thallium nitrate found in Trepal's garage, identified as Q206, contained no other drug residues ; (7) he also gave an unsupported opinion about the purity of the thallium nitrate in Q206; and (8) Martz in his deposition and trial testimony made various inaccurate, incomplete, or unsupported statements.

 

In the World Trade case, as discussed in Part Three, Section C, Martz as the chief of the CTU approved Lynn Lasswell's conclusion that mass spectrometry (MS) had identified urea nitrate on certain evidence, when the results in fact merely established the presence of urea and nitrate ions. Martz was reluctant to acknowledge the limitations of the MS data. Initially in his OIG interview, Martz persisted in asserting that the results identified urea nitrate. After being further challenged by the OIG investigative team and reflecting overnight, Martz acknowledged that the MS analysis could not, by itself, identify the substance.

 

In reporting conclusions of his 1989 review of Rudolph's cases, in his defense of Lasswell's interpretation of the MS results in the World Trade case, and in his work in Trepal, Martz appeared to have a lower threshold of scientific proof than is generally accepted in forensic science and to lack appropriate scientific rigor in his approach to examinations. A forensic scientist, especially one in a supervisory position, should be conservative in forming conclusions and willing to consider possible limitations in the analyses. Martz instead has sometimes formed conclusions without acknowledging legitimate questions about their validity.

 

Both as an examiner and as a unit chief, Martz appears not to have recognized the importance of protocols in forensic examinations. After the explosives residue program was transferred to the CTU from the MAU in 1994, Martz as CTU chief failed to integrate the protocols that had been previously used by the two units. This meant, as was illustrated in the Shaw case, discussed in Part Three, Section H7, that the analysis of certain evidence could vary depending on the examiner assigned to the case. As noted in Part Three, Section G, in the Oklahoma City case, Martz did not follow the FBI's explosives residue protocol when he failed to examine certain evidence microscopically. Martz told the OIG that a protocol is a guideline and that examiners should have discretion in determining the procedures to apply in a particular case. Based on his conduct and rema rks, Martz does not seem to appreciate the importance of following authorized protocols or the need to document the reasons for departing from them.

 

We find that Martz did not perjure himself or improperly circumvent or violate Laboratory protocols in the VANPAC case, as was alleged by Whitehurst. As noted in Part Three, Section B, Martz should have testified more clearly in that case about his inability to determine if smokeless powder samples came from the same batch. Martz was asked if he had compared smokeless powder from the mail bombs to powder from a gun shop where the defendant allegedly had bought powder before the bombings. Martz ambiguously stated that he had not been able to successfully compare the powders, and only when questioned further on cross-examination did he say that he could not determine from his comparisons if the powders came from the same batch. Martz should have stated clearly that he had compared certain samples, had found differences and similarities, but could not determine from the data if the powders came from the same batch.

 

As discussed in Part Three, Section F, we also conclude that Martz did not perjure himself, give misleading testimony, or improperly erase digital data in the Simpson case. Martz undermined his credibility by his poor choice of words in stating that he had decided to be more truthful in his testimony and by agreeing with defense counsel that he had destroyed certain data. By his lack of adequate preparation, his deficient record-keeping and note-taking practices, and certain aspects of his demeanor at trial, Martz did not serve the Laboratory well in that case.

 

Based on our investigation, we conclude that Roger Martz lacks the credibility and judgment that are essential for a unit chief, particularly one who should be substantively evaluating a range of forensic disciplines. We found Martz lacking in credibility because, in matters we have discussed above, he failed to perform adequate analyses to support his conclusions and he did not accurately or persuasively describe his work. We recommend that Martz not hold a supervisory position. The Laboratory should evaluate whether he should continue to serve as an examiner or whether he would better serve the FBI in a position outside the Laboratory. If Martz continues to work as an examiner, we suggest that he be supervised by a scientist qualified to review his work substantively and that he be counseled on the importance of testifying directly, clearly and objectively, on the role of protocols in the Laboratory's forensic work, and on the need for adequ ate case documentation. Finally, we recommend that another qualified examiner review any analytical work by Martz that is to be used as a basis for future testimony.

 

C.J. Thomas Thurman

 

J. Thomas Thurman has worked as an examiner in the Explosives Unit (EU) since 1982, and he became chief of that unit in December 1994.

 

Whitehurst has alleged that Thurman improperly altered dictation that Whitehurst prepared as an auxiliary examiner. Contrary to the unwritten policy in the Laboratory, Thurman from 1987 through 1992 prepared several reports that failed to incorporate verbatim the dictation Whitehurst prepared as an auxiliary examiner. As described in Part Three, Section H10, Thurman's reports contained certain inaccuracies or ambiguities as a result of the changes he made to the dictation. We also concluded that he should have revised his report in the case concerning an attempted bombing at the William Wirt Middle School after examiner Steven Burmeister questioned certain conclusions.

 

We do not conclude that Thurman intended to write his reports with a prosecutorial bias, although the effect of his overstating AE conclusions in certain reports was favorable to the prosecution, or that he engaged in willful misconduct in this respect. We also acknowledge that J. Christopher Ronay, the unit chief for the EU from 1987 through October 1994, approved reports by Thurman and other EU examiners that did not incorporate auxiliary examiner dictation verbatim. Thurman should, however, have recognized the potential problems posed by his actions and should have at least obtained the auxiliary examiner's approval before modifying language in the dictation.

 

After Thurman became unit chief of the EU in 1994, he incorrectly approved certain conclusions that examiner David Williams included in a report in the Oklahoma City case. Specifically, Thurman should not have approved Williams' conclusions that the VOD of the explosive used was 13,000 feet per second; that the explosion was caused by approximately 4,000 pounds of ANFO; that the initiator for the booster was either a detonator from a Primadet Delay system or sensitized detonating cord; that the initiator was a non-electric detonator; and that the time delay was 2 minutes, 15 seconds. For reasons set forth in Part Three, Section G, these conclusions were more specific or definite than could be validly supported. Thurman also should have directed Williams to rewrite the internally inconsistent statement that [t]races of PETN were located on specimen Q18, however could not be confirmed. Based on Thurman's OIG interview, we find that he did not sufficiently review the substantive validity of the conclusions stated in the report, but instead inappropriately deferred to Williams.

 

Thurman, as EU Chief, should have taken further steps to address concerns voiced by FBI metallurgist William Tobin that EU examiners were incorrectly describing metal wire in their reports. As noted in Part Three, Section H12, Tobin contends that EU examiners have not followed the industry standard for reporting gauge based on the total cross-sectional area of a multi-strand wire, and instead have reported the gauge of individual strands. Tobin has noted that if the gauge is described this way in reports it may be misunderstood. In light of Tobin's concerns, Thurman should have issued an appropriate directive to EU examiners so they understood the industry practice and reported their findings in a clearly understandable manner.

 

We conclude that Thurman did not perjure himself, fabricate evidence, improperly testify outside his expertise, or improperly circumvent FBI Laboratory procedures in the VANPAC case as was alleged by Whitehurst. We did find that Thurman inaccurately testified on two minor points: while he correctly stated that there had been no DNA match to the defendant, Thurman erred in saying that DNA analysis is based on an enzyme in saliva; and he incorrectly distinguished high and low explosives by referring to the speed of the explosive shock wave.

 

Whitehurst also alleged that in the Kikumura case, discussed in Part Three, Section H1, Thurman testified falsely, misled the jury, gave biased or speculative testimony, and violated FBI policies or procedures. We do not find that Thurman testified falsely in this case, which involved a sentencing hearing rather than a jury trial. Nor do we find that his testimony was improperly biased or speculative. Thurman did testify inaccurately or ambiguously on four points: the type of fireball that would result from the bombs; the common use of mercury fulminate in blasting caps; the direction in which the bombs would have released their lead shot contents; and the distinction between high and low explosives. The inaccuracies or ambiguities in Thurman's testimony that we noted in the VANPAC and Kikumura cases represent performance issues of the sort that are best addressed through an effective program of testimony monitoring.

 

In evaluating Thurman's conduct as a manager, we recognize that he did not become the unit chief of the EU until December 1994. We also note that he apparently has supported the development of protocols, training programs, and other quality assurance measures for the EU. In his interview with the OIG, Thurman seemed sincere in stating his desire to improve his unit and to learn from the experience of other forensic laboratories in the explosives field.

 

Given our recommendation that the EU be restructured so that its unit chief and examiners have scientific backgrounds, we conclude that when the restructuring is accomplished, Thurman should be reassigned to a component of the FBI outside the Laboratory. In the interim, the Laboratory should assess, given the findings in this Report, whether Thurman should continue to occupy a supervisory position. While Thurman remains unit chief, the SAS Chief should monitor his work, and Thurman should be counseled to substantively review all reports issued by the EU and to enlist the assistance of other qualified examiners if necessary to assure that the conclusions stated by EU examiners have a reasonable scientific basis. Consistent with our general recommendations concerning peer review and report preparation as discussed in Part Six, any reports that Thurman prepares himself should be reviewed by another qualified examiner.

 

D.David Williams

 

David Williams has worked as an examiner in the EU since 1987.

 

In Part Three, Section C, of this Report, we discuss at length the testimony by Williams in the Salemeh trial related to the World Trade Center bombing. As noted in that section, we conclude that Williams in testifying failed to display the objectivity, competence, and credibility that should be expected of examiners from the FBI Laboratory. Most egregiously, Williams gave a scientifically unsupportable opinion, based on speculation beyond his scientific expertise, in stating that the main charge was urea nitrate. That opinion was improperly based on information linking the defendants to urea nitrate that was not related to any scientific analyses of the bomb scene.

 

In the Salemeh trial, Williams also testified inaccurately about his role in the Laboratory's manufacturing of urea nitrate and about the use of Arabic formulas associated with the defendants to manufacture the sample; he testified outside his expertise about the defendants' capacity to make urea nitrate and did so in a way that appears intended to reach the most incriminating result; he gave incomplete testimony about the VOD of urea nitrate; he gave a scientifically unsupportable opinion about the VOD of the main charge in the bombing; and he gave misleading testimony about his attempt to modify dictation authored by Whitehurst.

 

We also found significant problems with a report Williams prepared in the Oklahoma City bombing case. As explained in Part Three, Section G, we conclude that in his report, Williams repeatedly reached conclusions that incriminated the defendants without a scientific basis and that were not explained in the body of the report. Williams here opined that a particular explosive -- ANFO -- was the main charge by again improperly speculating from information that linked the defendants to that explosive but that was not relevant to his scientific analysis of the evidence. We criticized other conclusions that Williams reached. He concluded that the VOD of the explosive used was 13,000 feet per second; that the explosion was caused by approximately 4,000 pounds of ANFO; that the initiator for the booster was either a detonator from a Primadet Delay system or sensitized detonating cord; that the initiator was a non-electric detonator; and that the time delay was 2 minutes, 15 seconds. These conclusions were more sp ecific or definite than could be reasonably supported by his examination of the evidence.

 

We also found that Williams erred in the Oklahoma City case by failing to incorporate AE dictation verbatim into a report and instead including an internally inconsistent statement. With regard to sample Q18, Steven Burmeister prepared dictation noting that instrumental analysis was consistent with the presence of . . . PETN and that [t]he presence of PETN . . . could not be confirmed. Williams paraphrased Burmeister's dictation by noting, [t]races of PETN were located on specimen Q18, however could not be confirmed. Williams claims that Burmeister approved this language. In any event, Williams should have recognized the internal inconsistency in the sentence and should not have included it in his report.

 

With regard to the Ghost Shadow case described in Part Three, Section H8, Whitehurst alleged that Williams improperly presented an expert opinion concerning the main charge of an improvised explosive device. Whitehurst further alleged that Williams gave opinions for which he lacked qualifications or analytical support and that he fabricated evidence. The facts do not support these allegations. Williams completed a Laboratory report on June 14, 1995, that described the results of certain examinations and noted that additional examinations were continuing. A second report dated July 18, 1995, accurately incorporated dictation by examiner Steven Burmeister describing the results of the additional tests. With regard to the June 14, 1995, report, we conclude that Williams did not fabricate evidence or state opinions for which he lacked qualifications or support.

 

Based on our investigation, we conclude that Williams lacks the objectivity, judgment, and scientific understanding that should be possessed by a Laboratory examiner. We recommend that the FBI reassign him to a position outside of the Laboratory Division. To the extent Williams is called upon to testify in the future concerning reports or other work he did as an examiner, we recommend that a qualified examiner review his proposed testimony and any related reports in advance of trial. We further recommend that a qualified examiner review any testimony after it is given to assure that Agent Williams has limited his testimony to reasonably supportable conclusions.

 

E.Richard Hahn

 

Richard Hahn was an examiner in the EU from 1987 until early 1992, when he transferred to the FBI's office in Long Beach, California.

 

As discussed in Part Three, Section E, we conclude that in the Avianca trials Hahn did not commit perjury, fabricate evidence, or intend to mislead the court. We also conclude that he erroneously testified in the first trial that no dynamite could have caused the pitting and cratering on the aircraft, gave scientific opinions correlating the pitting and cratering with a VOD range that were unsound and not justified by his experience, erroneously failed to make inquiries about the validity of his jetting theory before the second trial, gave incomplete testimony concerning the MAU results, testified incorrectly and outside his expertise concerning a fuel-air explosion, the injuries to passengers, and other areas, and slightly overstated his experience.

 

Hahn is no longer working in the Laboratory. If in the future he is asked to testify about his work as an examiner, we recommend that he be specifically counseled about the importance of not testifying on matters outside of his expertise. Such testimony should also be reviewed subsequently by appropriately qualified examiners in the Laboratory to assure that he has appropriately limited his testimony.

 

F.Robert Heckman

 

Robert Heckman has worked as an examiner in the EU since 1990.

 

As described in Part Three, Section H6, we found that in the Conlon case Robert Heckman made improper additions to Whitehurst's dictation by adding statements outside of his expertise to the section of the report designated Instrumental Analysis. Heckman stated his personal opinion that the results of a field test of explosives residue with an ion mobility spectrometer (IMS) may well have been correct, despite the lack of confirmatory results when the evidence was later examined in the Laboratory. Furthermore, Heckman erred by including in the Instrumental Analysis section of the Laboratory report statements that reflected his own opinion, rather than any work performed by Whitehurst as the auxiliary examiner. While Heckman erred by adding these statements to the Instrumental Analysis section of the report, we also recognized that former EU Chief J. Christopher Ronay shared some responsibility because he approved the report.

 

We also noted that Heckman stated his conclusion in a way that might be misinterpreted. Because the contributing agency had asked if the explosive could have been of military origin, Heckman concluded in the report that the explosion was caused by a very brisant high explosive consistent with those used by the military. Although this statement was not inaccurate, Heckman later acknowledged in a deposition and our interview that the explosive could have been of commercial origin. We suggested that to avoid any possible misunderstanding, Heckman could have either limited his conclusion to a finding of a very brisant high explosive, or, alternatively, noted that the explosive could have been of military or commercial origin.

 

As explained in Part Three, Section H4, we do not find evidence supporting Whitehurst's allegations that Heckman improperly testified outside his expertise in the Borsellino case or that Heckman's testimony was unreliable because he did not consider potential contamination of the evidence. Given the particular circumstances of that case, including the Italian prosecutor's request that Heckman testify as the representative of the Laboratory, Heckman was permitted to report Whitehurst's findings while testifying at the trial before the Italian magistrate. In the Borsellino case, Heckman did erroneously state that Whitehurst had confirmed the presence of RDX, when in fact Whitehurst had found residues consistent with RDX. This case illustrates that if examiners describe analyses or conclusions made by other examiners, they must do so accurately.

 

We do not think that Heckman engaged in willful misconduct in either the Conlon or Borsellino cases. Conlon presents, in our judgment, a performance issue that is best addressed through supervisory counseling and monitoring of future report preparation. Similarly, the minor inaccuracy in Heckman's Borsellino testimony is the sort of thing that can be addressed by adequate monitoring of testimony.

 

G.Wallace Higgins

 

Wallace Higgins has worked as an examiner in the EU since 1989.

 

Whitehurst alleged that Higgins may have changed dictations that Whitehurst prepared as an auxiliary examiner without Whitehurst's permission. As described in Part Three, Section H11, we found that between 1991 and 1994, Higgins prepared several reports that failed to incorporate verbatim the dictations prepared by Whitehurst. In these laboratory reports, 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.

 

We had difficulty determining why Higgins made particular alterations. Higgins was not helpful in this regard, because he generally maintained that he did not recall the circumstances surrounding these changes. Furthermore, Higgins insisted that he would not have changed the dictations without authorization from Whitehurst. Higgins did indicate in some cases that he thought that Whitehurst's dictations were speculative, repetitious, or strayed into the EU's area of responsibility. Ronay also stated that a major issue in the EU at this time was Whitehurst's tendency to express opinions concerning possible alternative explanations for the presence of explosive residues. Ronay believed that such opinions were outside of Whitehurst's area of expertise, and accor dingly Ronay did not consider the removal of such opinions to be a substantive change. Ronay indicated that there may have been a time when he authorized EU examiners to make non-substantive changes to Whitehurst's reports without Whitehurst's authorization.

 

Given the foregoing, the evidence did not support the conclusion that Higgins intentionally altered Whitehurst's reports to bias the dictations in favor of the prosecution. Higgins, however, should have recognized the potential problems posed by unauthorized changes to Whitehurst's dictations and obtained Whitehurst's express approval before making such alterations. Ronay also bears responsibility for the unauthorized changes to Whitehurst's dictations because he approved Higgins' reports and fostered a permissive attitude toward changes to Whitehurst's dictations.

 

In view of our recommendation that the EU be restructured so that its unit chief and examiners have scientific backgrounds, we conclude that Higgins should be reassigned to a component of the FBI outside the Laboratory. In the interim, while Higgins remains in the EU, the SAS Chief should counsel Higgins on the proper preparation of reports and monitor his work. A qualified explosives examiner also should review any reports prepared by Higgins.

 

H.Alan R. Jordan

 

Alan R. Jordan was the EU examiner involved in the investigation of the attempted assassination of former President George Bush in Kuwait in April 1993. Whitehurst suggested that someone may have misinterpreted his analytical results to link the explosives involved in the attempted assassination to other explosives found in devices known to be associated with Iraq. As explained in Part Three, Section D of this Report, we did not find that Jordan or any one else misstated Whitehurst's results comparing the explosives in the Bush device and explosives linked to Iraq that were found in Southeast Asia.

 

Jordan prepared a report dated June 18, 1993, that incorporated dictation by Whitehurst but did not restate it verbatim. This dictation did not concern the Southeast Asia explosives, and Whitehurst never prepared dictation describing his work on that material. Jordan should have included Whitehurst's dictation verbatim. His changes do not, in our opinion, evidence any effort to misstate Whitehurst's conclusions. Moreover, J. Christopher Ronay as his unit chief allowed Jordan and other EU examiners to prepare reports that did not include Whitehurst's dictation verbatim.

 

We do not find that Jordan improperly misstated results reached by Whitehurst or otherwise engaged in misconduct in his work on the investigation of the Bush assassination attempt.

 

Whitehurst also alleged that Jordan may have misstated Whitehurst's findings in the Seijas case which concerned the attempted assassination of Miami attorney Gino Negretti. As noted in Part Three, Section H5, we conclude that Jordan did not misstate Whitehurst's results in this case.

 

We do not find any misconduct by Jordan with respect to those matters we investigated and we do not recommend any action concerning him.

 

I.Michael Malone

 

Michael Malone worked as an examiner in the Hairs and Fibers Unit from 1974 until 1994, when he transferred out of the Laboratory. As described in Part Three, Section H12, Malone in 1985 examined a purse that then United States District Judge Alcee Hastings had introduced as an exhibit in his 1983 trial related to an alleged bribery scheme. At his trial, Hastings had testified that he had sought to have the purse repaired because its strap was broken. The purse was later sent to the FBI Laboratory for examination in 1985, when a judicial committee for the Judicial Council of the Eleventh Circuit Court of Appeals was investigating allegations of misconduct by Hastings in connection with the alleged bribery and other matters.

 

Malone examined the strap microscopically and found indications that it had been deliberately cut. He also asked FBI metallurgist William Tobin to test the strap with a tensile tester, a device that measures the force required to break an object. Tobin did so and found that the strap broke at 29.5 pounds of force. As part of the judicial committee's investigation, Malone testified before the committee in October 1985 and again in April 1996.

 

Malone's 1985 testimony was incorrect and misleading in several respects. First, Malone falsely stated that he had actually conducted the test himself. He also opined, inaccurately, that the machine at 29.5 pounds would be pulling much harder than Malone could pull himself. He further testified inaccurately in stating that metal displays a sudden or instantaneous break, which Malone distinguished from the break he observed in the purse strap. Finally, Malone said that the 29.5 pounds figure was almost a meaningless figure other than it's a lot more than an average person could exert. This statement is inaccurate both in diminishing the significance of the tensile test results and asserting that the identified force was a lot more than an average person could exert. These various misstatements, as Tobin himself acknowledged, did not affect the conclusion that the strap had been partially cut.

 

We also conclude that Malone was incorrect in telling the OIG as part of this investigation that he in 1985 had told John Doar, the chief counsel for the judicial committee, that Tobin had conducted the test. For reasons set forth in Part Three, Section H12, we find that Doar did not know that Malone had not performed the tensile test. Recognizing that we are reviewing events that occurred more than ten years ago, and given the record before us, we cannot conclude that Malone engaged in intentional misconduct by failing in 1985 to tell Doar that Tobin had performed the test or by inaccurately describing to the OIG his conversations with Doar before Malone testified.

 

Malone falsely testified before the judicial committee that he had himself performed the tensile test and he also testified outside his expertise and inaccurately concerning the test results. The FBI should assess what disciplinary action is now appropriate and should monitor his testimony in future cases to assure that Malone is accurate and testifies to matters within his knowledge and competence.

 

J.J. Christopher Ronay

 

J. Christopher Ronay was the unit chief of the EU from 1987 through October 1994.

 

As chief of the EU, Ronay did not sufficiently review reports prepared by examiners in his unit. Ronay told the OIG that he read the EU reports to check their format, but he did not reexamine the evidence with regard to conclusions reached by EU examiners and he did not always review the work notes, test results, or the original dictation by other examiners. A specific example is provided by the Conlon case, in which Ronay acknowledged to the OIG that he would have questioned certain statements made by examiner Robert Heckman if he had read the report more carefully. Former SAS Chief James Kearney told the OIG that he had directed Ronay to review EU reports technically as well as administratively but that Ronay had responded that he did not want to second guess his examiners. In his review of EU reports, Ronay did not recognize the importance of assuring that each examiner's conclusions are reviewed by another qualified examiner to assure that the conclusions stated are scientifically reasonable and supported by the data.

 

Ronay also erred by allowing EU examiners to revise auxiliary examiner dictation when incorporating it into Laboratory reports. Ronay claimed that he did this only where the changes did not, in his opinion, affect the substantive results and he said he did not recall approving revisions to the dictation of any examiner other than Whitehurst. By allowing the EU examiners unilaterally to revise auxiliary examiner dictation, Ronay departed from the Laboratory's unwritten rule that dictation would be incorporated verbatim unless the examiner who provided the dictation approved changes. Ronay's actions have created a serious problem for the Laboratory with those reports containing language significantly different from that of the underlying dictation. The examiner responsible for the dictation may not b e able to support the language used in the report, and the EU examiner may not be able to either since that person did not perform the examinations or reach the conclusions described in the dictation.

 

As discussed in Part Three, Section D, Whitehurst alleges that Ronay or someone else may have misstated the results of Whitehurst's comparison of explosives used in the 1993 assassination attempt of former President George Bush and other explosives that had been found in Southeast Asia and linked to Iraq. Whitehurst alleges that he told Ronay that the Bush explosive material was different from the Southeast Asia explosives. Whitehurst did not prepare any dictation regarding this comparison. We do not find evidence to support Whitehurst's claims that Ronay or someone else misstated the results of Whitehurst's comparison in order to link the Bush explosive device to known Iraqi devices.

 

Ronay exhibited poor judgment as a manager when he approved EU reports that did not incorporate auxiliary examiner dictation verbatim and, at least in some instances, failed substantively to review the reports. Ronay should have recognized that these actions had potentially detrimental effects and that the alterations in auxiliary examiner dictation were contrary to unwritten, but generally understood, practices in the Laboratory. Ronay retired from the FBI in 1994, and we do not recommend any action by the FBI concerning him.

 

K.Robert Webb

 

Robert Webb worked as an examiner in the Materials Analysis Unit from 1976 through 1991, when he transferred out of the Laboratory. As is discussed in Part Three, Section B, we conclude that, in the VANPAC case, Webb stated conclusions about the common origin of certain tape, paint, sealant, and glue more strongly than was justified by the results of his examinations and the background data. We find that Webb did not attempt to fabricate evidence or to present biased conclusions. As part of this investigation, we did not undertake a general review of Webb's work in cases other than VANPAC. We recommend that another qualified examiner review any analytical work by Webb that is to be used as a basis for future testimony.

 

II.Laboratory Management

 

In this section we discuss several persons in managerial positions within the Laboratory whose conduct either was the subject of allegations by Whitehurst or otherwise merits comment.

 

Before addressing specific individuals, we think some general observations are appropriate. As the Rudolph matter powerfully demonstrates, we found that Laboratory management failed to assure that questions about the quality of the Laboratory's work were adequately investigated and appropriately resolved. Evidently, the Laboratory failed even to review Rudolph's testimony in Psinakis despite the detailed, and serious, criticisms made by the AUSA handling the case. Second, as illustrated by such matters as Avianca and World Trade, we found that management failed to assure that disagreements among examiners were resolved on a scientific basis and that any resolution was clearly communicated to all concerned. We also found that Laboratory management in several instances failed to assure that there was sufficient follow up to decisions or directives. One example is the direction to Rudolph that he return documents to his case files and prepare memoranda describing his actions. Another is the failure to establish guidelines regarding the respective responsibilities of the CTU and MAU in the area of explosive analysis after the issue surfaced in connection with the World Trade case in 1993.

 

Many of the problems we identified might have been avoided if work by examiners had been adequately reviewed by a qualified unit chief or another peer. The absence of such a review partly reflects that the Laboratory did not adopt a formal quality assurance plan until November 1992 and even then did not have written procedures or policies on various matters. The Laboratory, for example, lacked an adequate system of peer review. In the past several years, the Laboratory has begun addressing these issues as it prepares to seek accreditation from the American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB). In Part Six of this Report we address accreditation and the role of management as part of our general recommendations for enhancing quality in the Laboratory. As we note there, management should reaffirm that providing reliable and objective forensic results is the Laboratory's primary goal, and management must expres s through its actions a strong commitment to the Laboratory's quality assurance program.

 

A.Charles Calfee

 

Charles Calfee was the unit chief of the Instrumental Analysis Unit (later renamed the Materials Analysis Unit) from 1975 through 1986, when he became the chief of the Explosives Unit (EU). In October 1987, Calfee retired from the FBI. Before Calfee became a unit chief in 1975, he had worked as an examiner in the EU from 1969 to 1975 and in the Spectrographic Unit, which later became the Instrumental Analysis Unit, from 1967 to 1969.

 

Calfee was the unit chief who supervised Terry Rudolph during most of his career as an examiner. We conclude that, at least in certain cases, Calfee did not sufficiently review Rudolph's work to assure that the conclusions were supported by adequate analyses and that the casework was properly documented. Calfee's failure to adequately review Rudolph's work reflects, in our view, that Calfee himself did not appreciate the importance of complete file documentation and case notes, the role of protocols, or the need to limit conclusions to those logically supported by the scientific analyses and data.

 

Our conclusions regarding Calfee are based on the condition of Rudolph's case files and statements made by Calfee during our investigation. Calfee defended Rudolph's use of liquid chromatography (LC) to identify PETN in the Psinakis case by noting that the powder Rudolph analyzed had been removed from a tool evidently designed to strip detonating cord. This observation does not excuse Rudolph's failure to conduct an appropriate test to confirm his LC findings, which themselves were merely consistent with the presence of PETN. Calfee also suggested that substances might, in some circumstances, be identified without a confirmatory technique. He also indicated that he had sometimes approved Rudolph's dictation without reviewing all the documentation, but would instead tell Rudolph to make sure that the documentation was collected and appropriately identified before the dictation went to the PE.

 

Calfee told us that he did not think it necessary that Rudolph record in his work notes all the tests performed. To justify this position, Calfee said that he told Rudolph not to use all the evidence in his tests so it could later be reexamined if necessary. When asked how another examiner could later tell from incomplete notes what Rudolph had done, Calfee said he thought it would be a very good test of the capability of any explosive examiner if they could testify based on the incomplete notes of another examiner. Calfee also remarked that he thought it was good not to have a set protocol because examiners could then work on a case-by-case basis. He acknowledged that Rudolph did not always follow the protocol for explosives residue analysis that Rudolph had described in a 1983 symposium, and Calfee did not require Rudolph to document why he chose to depart from the protocol on particular occasions.

 

The views stated by Calfee fundamentally misapprehend the importance of accurate case notes and protocols in the work of a forensic laboratory. As illustrated by the Psinakis case, the absence of accurate notes may mean that an examiner cannot credibly explain his or her conclusions. Moreover, no meaningful peer or supervisory review can occur if the case notes are incomplete. Protocols are intended to assure that examiners follow sufficient, validated procedures for their analytical work. They should be followed absent articulated reasons for departing from them, and any such departures should be explained in the case notes.

 

As a supervisor, Calfee failed adequately to review Rudolph's work. His failure to do so evidently reflects that he did not himself understand that examiners should limit their conclusions to those that logically follow from their data and scientific analyses; that case files and notes must be accurate and complete; and that adherence to protocols is a foundation for credible and objective forensic work.

 

B.Kenneth Nimmich

 

Kenneth Nimmich was the chief of the SAS from July 1987 until February 1993, when he became chief of the Forensic Science Research and Training Center (FSRTC). Nimmich retired from the FBI in November 1996.

 

As noted in Part Three, Section A, we find some fault in Nimmich's handling of the Rudolph matter. In 1989, after AUSA Burch complained in writing to the Laboratory about Rudolph's work in Psinakis and Butler prepared his memorandum noting that there were numerous administrative shortcomings in the cases he reviewed, Nimmich should have assured that more adequate reviews were completed of Rudolph's work in Psinakis and his case work overall. Although he did assign Martz to make a review, Nimmich's understanding of the nature of the review apparently differed from Martz's. In retrospect, it would have been desirable for Nimmich to provide written instructions to Martz concerning the object or methodology of his further review. Martz's deficient report led Nimmich to conclude that further action was unnecessary.

 

When the Laboratory again reviewed Rudolph's cases in 1992, Nimmich assigned responsibility to Corby to make the review together with Martz and Lasswell. It is now apparent that Nimmich should have put his instructions for this review in writing because, although Corby and Lasswell believe that Martz was part of the review panel, Martz does not recall participating. The review did not occur as Nimmich contemplated. When Nimmich decided to prepare a memorandum describing the review, he should have circulated drafts of pertinent parts of the memorandum to the three individuals he thought comprised the review panel. Their comments would have been relevant to Nimmich's recommendations and may have corrected his misunderstanding about how the review was conducted. To his credit, Nimmich did recommend th at Rudolph be reprimanded based on the 1992 review. Without discussing the matter with Nimmich, Hicks decided merely to admonish Rudolph. Nimmich also recommended that Rudolph review the files and prepare a memorandum to be placed in each file documenting any changes made.

 

The 1992 review should also have led Nimmich to conclude that a review of all of Rudolph's cases should have been undertaken at the time. He also should have put in place some process to monitor Rudolph's preparing memoranda describing any additions made to the questioned case files.

 

Nimmich also failed to assure that an appropriate investigation was made in 1989 after FBI metallurgist William Tobin complained that Michael Malone, an examiner in the Hairs and Fibers Unit, had inaccurately testified in the Alcee Hastings matter. As noted in Part Three, Section H12, we conclude that Malone's testimony was in certain respects false and misleading. Tobin expressed his concerns to Nimmich orally and prepared a memorandum detailing significant problems with Malone's testimony. Nimmich states that he does not recall this issue. Although we could not confirm that Nimmich in fact reviewed Tobin's 1989 memorandum, we are persuaded that Tobin expressed his concerns orally to Nimmich. Given the serious nature of Tobin's allegations, Nimmich should h ave taken steps to assure that they were adequately investigated.

 

We also think that Nimmich should have taken additional steps in December 1992 in response to allegations that EU examiner Thurman had prepared reports that did not include verbatim the auxiliary examiner dictation prepared by Whitehurst. It would have been preferable if Nimmich had then directed that all of Thurman's reports including dictation by Whitehurst be reviewed for possible changes -- a review that did not begin until 1994. In addition, Nimmich should have then circulated a written statement of the Laboratory's policy that dictation would be incorporated verbatim into reports unless the responsible auxiliary examiner approved changes.

 

We do not find that Nimmich intentionally failed to address concerns about the quality of the Laboratory's work or attempted to conceal problems within the Laboratory. Nimmich retired from the FBI in 1996, and we do not recommend any action by the FBI concerning him.

 

C.James Kearney

 

James Kearney was the chief of the SAS from February 1993 until his retirement from the FBI in June 1995.

 

We do not find that Kearney acted with a retaliatory purpose in deciding to transfer the explosives residue program to the CTU in 1994 or to leave Whitehurst in the MAU after the transfer occurred.

 

In some cases, we think Kearney should have taken further steps to see that disagreements among examiners over analyses or the interpretation of data were resolved on a scientific basis and that the resolution was clearly communicated to all involved.

 

In the Avianca case, Kearney failed to give clear and sufficient direction when the controversy developed between Richard Hahn and Whitehurst in the summer of 1994. Shortly after Hahn testified in the first trial in June 1994, Whitehurst sent a memorandum to the prosecutor that raised questions about conclusions Whitehurst had made in dictation he prepared after examining the evidence in 1990. Among other things, Whitehurst questioned whether his previous findings reflected contamination of the evidence. Hahn concluded that Whitehurst's concerns were not well founded and that he had raised certain matters outside his expertise. Kearney, after reviewing memoranda prepared by each examiner and discussing the matter with MAU Chief James Corby, concluded that Hahn could properly testify about Whitehurst's 1990 findings.

 

Certain aspects of Kearney's handling of the Avianca matter are troubling. First, in attempting to resolve the conflict between Whitehurst and Hahn regarding the significance of the questions Whitehurst raised in the summer of 1994, Kearney should have solicited input from other examiners with appropriate expertise. Kearney was right to talk to both Corby and EU Chief Ronay, but he should have sought further expertise to evaluate the scientific issues Whitehurst had raised. Second, Kearney failed to communicate his conclusion to the persons involved. Although Kearney states he thought both Hahn and Whitehurst should testify at the second trial, that view evidently was never communicated to Hahn, Whitehurst, or the prosecutor. Hahn simply assumed that Laboratory management did not object to his again testifying about Whitehurst's 1990 findings, and Hahn testified in the second trial without knowing what Kearney had decided. Whitehurst claims he was surprised to learn that Hahn had testified in the second trial and says he was never told what Kearney had concluded.

 

We also think Kearney should have followed up further when Steven Burmeister complained in 1994 that he disagreed with conclusions that J. Thomas Thurman had included in a report related to an attempted bombing at the William Wirt Middle School. Given Burmeister's concerns, Kearney should have asked another qualified examiner to assess the validity of Burmeister's concerns and, if appropriate based on that review, Kearney should have directed that the report be amended or supplemented.

 

We do not find that Kearney intentionally failed to address concerns about the quality of the Laboratory's work or attempted to conceal problems within the Laboratory. Kearney retired from the FBI in 1995, and we do not recommend any action by the FBI concerning him.

 

D.John Hicks

 

John Hicks was the Laboratory Director from August 1989 until his retirement from the FBI at the end of June 1994. Before becoming the Laboratory Director, Hicks had served as the Deputy Laboratory Director from 1986 until 1989, as the chief of the SAS from 1983 until 1986, and as the assistant chief of the SAS from 1979 until 1983. He worked as an examiner in the Microscopic Analysis Unit, which later became the Hairs and Fibers Unit, from 1971 until 1976.

 

As the Laboratory Director, Hicks failed to assure that the concerns raised by AUSA Burch about Rudolph's work in the Psinakis case were adequately investigated. In his July 8, 1989, letter to Hicks, Burch noted that Rudolph had improperly relied on hearsay from a field agent and had not conducted sufficient analyses to support his conclusions. Burch detailed his criticisms in four pages that also raised questions about contamination of evidence, protocols, and peer review within the Laboratory. By a letter dated July 28, 1989, Hicks responded to Burch by stating that he shared Burch's concerns and that as a result of Psinakis, Hicks had instituted an internal audit of the protocols used for the identification of explosives residue.

 

After receiving Burch's letter, Hicks should have directed that the transcript of Rudolph's testimony be reviewed. Hicks told the OIG, however, that he did not recall reviewing the testimony or hearing that anyone else had reviewed it. Moreover, if Hicks intended there to be an internal audit of the FBI protocols in explosives cases, as he stated in his response to Burch, Hicks failed adequately to communicate that intent to others in the Laboratory. Given the conclusions reached by Butler in his 1989 review, which found numerous administrative shortcomings in 200 of Rudolph's cases, Hicks should have then initiated a complete review of Rudolph's case work.

 

Hicks also did not satisfactorily resolve the Rudolph matter after the 1992 case review. By deciding to give Rudolph merely an oral admonishment, despite Nimmich's recommendation for a severe reprimand, Hicks downplayed the significance of Rudolph's misconduct. We do not find, however, that Hicks improperly attempted to cover up the allegations against Rudolph or deficiencies in his work.

 

As explained in Part Four of this Report, we do not find that Hicks engaged in improper retaliation in connection with the suspension of Whitehurst for one week in 1990 for his conduct in the Psinakis case.

 

In hindsight, the Laboratory would have benefitted greatly if Hicks had more strongly articulated the importance of quality assurance, more aggressively promoted the adoption of policies and procedures like those required for accreditation, and more thoroughly investigated and addressed concerns about the quality of the Laboratory's work. Hicks retired from the FBI in 1994, and we do not recommend any action by the FBI concerning him.

 

E.Alan T. Robillard

 

Alan T. Robillard joined the Laboratory Division in 1977 and worked as an examiner in both the Hairs and Fibers Unit (HFU) and the Questioned Documents Unit (QDU). In 1988, Robillard became unit chief for the HFU; in 1989, he became unit chief for the DNA Unit. Robillard in 1990 became the Assistant Section Chief for the Scientific Analysis Section. In 1994, after briefly serving as the chief for a newly formed QDU, Robillard voluntarily transferred out of the Laboratory as part of the general reassignment of agents from FBI Headquarters.

 

We do not find that Robillard violated FBI policies or otherwise engaged in improper conduct with respect to any of those matters we investigated.

 

Whitehurst asserts that Robillard once told him that the FBI wanted to sweep the Rudolph matter under the rug. Robillard denies making this statement and notes that he was not involved in any of the reviews of Rudolph's work. We did not find any corroboration for Whitehurst's allegation and did not otherwise discover facts suggesting any wrongdoing by Robillard related to the Rudolph matter. We also do not find that Robillard engaged in improper retaliation in connection with the suspension of Whitehurst for one week in 1990 for his conduct in the Psinakis case.

 

Whitehurst also states that Robillard, as acting unit chief of the HFU, pressured serology examiner Robert Grispino to change his results in the Melissa Brannen case to agree with those of DNA examiner Dwight Adams. As explained in Part Three, Section H3, we did not find any evidence to support this allegation. Grispino had issued a report stating that serology tests indicated that a missing girl could have been the source of blood stains found in the defendant's car; Adams later conducted DNA tests that excluded the girl as a possible source. Robillard, Grispino, and Adams each deny that there was any effort to pressure Grispino to change his results.

 

On a different point, in correspondence to the OIG, Whitehurst stated that Robillard had once told him that the QDU lacked protocols and had been winging it for years. Our investigation indicates that Robillard did not make the broad statement attributed to him by Whitehurst. Instead, Robillard in 1994 asked Whitehurst to assist in a research project to distinguish laser printer copies from photocopies, which examiners in the QDU had not been able to do. Robillard acknowledges that in this context he may have said something about winging it, but states that he never suggested that the QDU generally lacked protocols or a proper basis for its conclusions. Whitehurst in an OIG interview acknowledged that Robillard's comments may have been limited to the research project they were discussing and that Whitehurst does not know what protocols the QDU may generally use.

 

III.Other Individuals

 

This section discusses several other individuals who allegedly engaged in some form of misconduct. Included within this section are persons who were the subject of allegations by Whitehurst or who were otherwise identified to the OIG in the course of its investigation.

 

A.Roger Asbury

 

Roger Asbury worked as an examiner in the Firearms Identification Unit from 1974 to 1978 and in the Elemental Analysis Unit from 1978 to 1984. In 1984 he worked with the FBI Inspections Staff, and in 1985 he became the chief of the Forensic Science Research Unit in Quantico. Asbury was chief of the Materials Analysis Unit (MAU) from August 1986 through August 1987, a time in which Whitehurst was training to become an examiner and Terry Rudolph was still working in the Laboratory. Asbury became the chief of the Laboratory's Administrative Unit in 1987. From 1989 until his retirement from the FBI in 1993, Asbury worked in the International Criminal Investigative Training Assistance Program (ICITAP) within the Office of the Deputy Attorney General.

 

Whitehurst alleges that Asbury, while serving as MAU chief, told Whitehurst that Rudolph was blackmailing the FBI and that the Laboratory practiced Black Magic rather than science. Asbury did not recall making either of these statements and told the OIG that Whitehurst may have taken some other remarks out of context. Asbury said that he may have told Whitehurst that the Laboratory could not allow Rudolph to leave the Laboratory before someone else was trained to examine explosives residue, and that Whitehurst may have concluded this meant Rudolph was blackmailing the FBI. Similarly, Asbury suggested that comments he made that forensic science is not considered to be real science and is looked down upon by the scientific community may explain Whitehurst's recollection of some reference to Black Magic.

 

Asbury acknowledged to the OIG that as MAU Chief he did not feel qualified to scientifically critique work by examiners in the unit. He also noted that quality control suffered as a result, because the FBI did not have a process for peer review other than review by the unit chief. Asbury also stated that he was generally dissatisfied with Terry Rudolph's documentation of his work, that he directed Rudolph to provide more documentation in certain cases that Asbury reviewed, and that he came to conclude that Rudolph should leave the Laboratory.

 

We do not find that Asbury engaged in misconduct with regard to those matters that we investigated. To his credit, Asbury did observe in a 1987 progress review that Rudolph's communication of results would improve with more comprehensive and detailed notes in preparing reports. In retrospect, it would have been desirable if Asbury had taken further steps to address his concerns about Rudolph's casework. We recognize, however, that Asbury was cast into a supervisory position in the MAU for only about one year and he did not have a sufficient background to substantively evaluate Rudolph's casework.

 

B.Edward Bender

 

Edward Bender worked as a technician in the FBI Laboratory from August 1979 until January 1990. As noted in Part Three, Section A, we did not generally evaluate the quality of Bender's work as a technician. We also did not evaluate any of Bender's forensic work after he left the FBI to work for the Bureau of Alcohol, Tobacco and Firearms within the Department of the Treasury.

 

As an FBI employee, Bender did not himself prepare reports or dictation or testify about conclusions reached in the Laboratory -- that responsibility rested with the examiner for whom Bender performed his technical work. Because we concluded that the FBI OPR had not sufficiently investigated Whitehurst's allegations that Bender was a racist and this affected his work, we did investigate those matters further. Our investigation confirms that Bender inappropriately made racial comments while employed as a technician in the Laboratory, but we do not find evidence that his remarks or his racial views affected his work in particular cases.

 

C.Louis J. Freeh

 

Whitehurst suggested that Director Freeh, when an Assistant United States Attorney, may have engaged in misconduct in the VANPAC case through the presentation of testimony by Martz and Thurman or by statements made in the closing argument. As described in Section Three, Part B, based on our investigation we do not find any basis to conclude that Freeh knowingly presented any improper evidence or otherwise engaged in prosecutorial misconduct in this case.

 

In correspondence to the OIG, Whitehurst has also noted that certain other FBI employees who are eligible for retirement do not have to fear retaliatory actions from Director Freeh. Whitehurst also has alleged that Thurman said that Freeh would fire Whitehurst if he kept making allegations. Based on our investigation, we do not find any basis to conclude that Director Freeh directed or otherwise participated in any retaliation against Whitehurst.

 

D.Donald Haldimann

 

As described in Part Three, Section C, Whitehurst alleged that SSA Donald Haldimann approached him on December 15, 1993, at an office Christmas party and told Whitehurst that his dictation in the World Trade case was too complex and that the U.S. Attorney's office was seeking to circumvent Whitehurst's testimony. Whitehurst claims he felt pressured by Haldimann to remove qualifying statements from his dictation and that Haldimann's statements may have reflected an effort by the U.S. Attorney's office to suppress evidence in a fraudulent and unethical way.

 

Whitehurst's allegations in this matter are unsupported. The reports in question were completed before Haldimann spoke to Whitehurst; Haldimann denies any effort to convince Whitehurst to modify the reports, but admits he asked Whitehurst why he worded things in a confusing way; and Haldimann states that no one directed him to talk with Whitehurst before they coincidentally met at the party. We do not find that Haldimann acted improperly in this matter or that it reflects any effort by the U.S. Attorney's Office to suppress evidence.

 

E.Ronald Kelly

 

Ronald Kelly worked as a technician in the Laboratory from 1978 until February 1995, when he became an examiner in the CTU.

 

In the Shaw case discussed in Part Three, Section H7, Whitehurst alleged that CTU examiner Kelly, without being properly qualified, prepared a report concerning a pipe bomb sent to a federal judge. Whitehurst also claimed that the analysis was flawed because Kelly failed to determine if materials other than smokeless powder were present in the bomb. We find that Kelly did not violate any FBI policies or procedures through his work on the case. His identification of smokeless powder appears to be technically correct. Although the analyses he performed may not have identified other materials had they been present in the bomb, that point illustrates the need to integrate the CTU's protocols for the identification of smokeless powders and explosives rather than any improper conduct on Kelly's part.

 

F.Lynn Lasswell

 

SA Lynn Lasswell worked as an examiner in the CTU from 1975 through 1994, when he transferred to the FBI's San Antonio field office as part of the general reassignment of agents from FBI Headquarters. We do not find that Lasswell engaged in misconduct in any of the matters we investigated.

 

In several letters to the OIG, Whitehurst has alleged: (1) that Lasswell was not trained as an examiner of explosives residue; (2) that he incorrectly identified smokeless powder as the main charge in an explosive device used in an attempted bombing of a federal building in San Diego, California; and (3) that in the World Trade case, Lasswell incorrectly identified urea nitrate on a tire fragment and altered the output of an IMS to incorrectly indicate the presence of urea nitrate.

 

These criticisms of Lasswell in part reflect Whitehurst's view that only examiners qualified by the MAU to examine explosives residue should have been analyzing explosives within the Laboratory. As we have noted earlier in this Report, the CTU also had some responsibility in explosives cases, as that unit had for several years worked on the identification of smokeless powders. The Laboratory never adopted written guidelines regarding the respective roles of the CTU and MAU in the analysis of explosives. Lasswell's working on smokeless powder cases or other cases involving the chemical analysis of explosives does not imply that he lacked necessary qualifications or violated Laboratory policies.

 

We did not identify a San Diego bombing case in which Lasswell incorrectly described the main charge by identifying only smokeless powder. In a subsequent letter to the OIG, Whitehurst claimed that the work was corrected in that case and no harm was done. As noted in our discussion of the Shaw case in Part Three, Section H7, we did observe that the protocol followed by the CTU for the identification of smokeless powder may not identify all materials present in a specimen. We also noted that the CTU needs to integrate the protocols for the analysis of smokeless powder and explosives residue.

 

In the World Trade case, Lasswell was incorrect in concluding that the concurrent identification of urea and nitrate with a MS was sufficient to identify urea nitrate on a tire fragment. We note that urea nitrate is not a common substance, and that when the identification was made, Lasswell's unit chief Roger Martz supported his interpretation of the data. As a result of concerns raised by Whitehurst and Burmeister, the Laboratory corrected the identification in a later report, and we do not think Lasswell's incorrect identification reflects misconduct on his part.

 

Finally, Lasswell did not improperly alter the output of an IMS to indicate the identification of urea nitrate. Whitehurst's claims that Lasswell had done something unethical or amounting to scientific fraud are grossly overstated. The IMS is used as a screening device and its output does not conclusively identify a substance. In the World Trade case, Lasswell ran a sample of urea nitrate through an IMS, which produced a particular peak as its output. Lasswell then programmed the IMS to indicate the presence of urea nitrate when that peak reappeared. As discussed above in Part Three, Section C, Lasswell in ide ntifying urea nitrate in sample Q65 did additional tests to confirm the preliminary indication from the IMS. We do not find that Lasswell attempted to misrepresent the output of the IMS or that he misinterpreted the significance of the results for Q65.

 

G.Richard Laycock

 

Richard Laycock has worked in the FBI Laboratory as a technician since 1964 and currently is assigned to the Materials Analysis Unit. Whitehurst has alleged that Laycock has little education or training in the field of mass spectrometry, that he once failed to calibrate a mass spectrometer for two years, and that he had unknowingly used a mass spectrometer with a cracked injector port.

 

Laycock told the OIG that the instrument he primarily works with is an Incos 50 Mass Spectrometer. He said that he had not been formally trained by the FBI to use this device, but he had received training from various manufacturers of mass spectrometer equipment and he had also learned from working with an FBI examiner. Laycock said he maintains the mass spectrometer through regular tuning and calibration, and denies he ever failed to calibrate a mass spectrometer for two years. He acknowledged that he once discovered a cracked injector port on a particular mass spectrometer that was primarily used to identify polyethylene. Laycock said that after replacing the port he reanalyzed certain materials and found that the results were the same and that the examiner involved knew of the situation.

 

We did not further investigate Whitehurst's allegations concerning Laycock or attempt ourselves to evaluate the adequacy of Laycock's training for his present assignment within the Laboratory. We do not find any misconduct by Laycock with regard to those matters that we investigated.

 

H.Thomas Mohnal

 

Thomas Mohnal has worked as an examiner in the EU since 1989. As noted in Part Three, Section H9, we do not conclude that Thomas Mohnal acted improperly in publishing the article about the UNABOM case in July 1994 without first addressing concerns Steven Burmeister had raised about Rudolph's earlier work on that case. We could not confirm that Mohnal knew of Burmeister's concerns before the article was published, and the article was intended to develop leads in the investigation. We do not find any misconduct by Mohnal with regard to those matters we investigated.

I.Bruce McCord

 

Bruce McCord is a research chemist in the Forensic Research Unit of the Laboratory. Whitehurst alleged that McCord had once told him he thought the Explosives Unit personnel could rightfully block Whitehurst's publication of papers on explosives. Whitehurst observed, If McCord feels that truth can be suppressed by these goons then he has lost any possibility of his opinion being respected by me. He will be guided by fear of these men that he feels dictate whether he can keep his job. In later letters to the OIG, Whitehurst stated that, to his knowledge, McCord had never committed any impropriety and Whitehurst did not believe he would do so. We do not find any misconduct by McCord with regard to those matters that we investigated.

 

J.Mark Olson

 

Mark Olson currently is a supervisor in the Automation and Analysis Unit of the Laboratory. Whitehurst wrote in a December 5, 1994, memorandum to James Corby that Olson had not determined if his staff had followed his instruction to remove certain unauthorized game software from computers in the Explosives Unit. In a letter to the OIG, Whitehurst stated that his wife Cheryl, who works in Olson's unit, and other personnel had not removed the software because they were afraid of crossing EU Chief Thurman.

 

Whitehurst later wrote the OIG stating that he was thoroughly puzzled by any suggestion that he had accused Olson of impropriety and that he understood from his wife that Olson is a good supervisor. We do not find any misconduct by Olson with respect to those matters that we investigated.

 

K.Howard Shapiro

 

Whitehurst suggested that FBI General Counsel Howard Shapiro, when an Assistant United States Attorney, may have engaged in misconduct in the VANPAC case through the presentation of testimony by Roger Martz and J. Thomas Thurman or by statements made in the closing argument. As described in Part Three, Section B, based on our investigation we do not find any basis to conclude that Shapiro knowingly presented any improper evidence or otherwise engaged in prosecutorial misconduct in this case.

In correspondence to the OIG, Whitehurst has complained that Shapiro is a liar because Shapiro assured Whitehurst that he would not suffer retaliation as a result of Whitehurst's deposition in connection with the January 1994 Salemeh trial, but within a few months after the trial, Whitehurst was reassigned to begin training as a paints and polymers examiner. Based on our investigation, we do not find any basis to conclude that Shapiro was involved in the decision to reassign Whitehurst or that Shapiro directed or otherwise participated in any retaliation against him.

 

IV.FBI OPR and FBI OGC

 

This section discusses our findings with respect to allegations by Whitehurst that FBI OPR or FBI OGC improperly failed to investigate certain of his allegations or retaliated against him because of concerns he raised about the Laboratory. The retaliation allegations are discussed at length in Part Four of this Report, and we only summarize our findings here.

 

As discussed in Part Three, Section A, we do not find that FBI OPR improperly attempted to dismiss or ignore allegations that Whitehurst made in 1991 concerning Terry Rudolph and Edward Bender. We do find that FBI OPR should have then investigated further Whitehurst's allegations about Bender's racial bias and Rudolph's perjuring himself and lying to an AUSA.

 

We also do not find that FBI OPR retaliated against Whitehurst in its handling of the investigation of his conduct in the Psinakis case; its investigations of his allegations that FBI personnel had improperly used bootleg software or that Agent Kenneth Neu had assaulted Whitehurst's wife, FBI employee Cheryl Whitehurst; or in its investigation concerning possible unauthorized disclosures by Whitehurst. With regard to specific individuals, we find no evidence suggesting that either Stephen Largent, who was involved in the investigation of the allegations of software theft and the assault, or Sarah Pickard, who was involved in the investigation of the possible unauthorized disclosures, engaged in retaliatory conduct against Whitehurst.

 

With regard to Whitehurst's allegations of software theft and the assault against Mrs. Whitehurst, we find no evidence that James Summerford, Joseph Koletar, or Kenneth Neu engaged in any retaliatory conduct. Nor do we find evidence suggesting that FBI OPR or other components of the FBI sought to ignore or cover-up Whitehurst's allegations on these matters.

 

Whitehurst alleges that he was subjected to retaliation when the FBI required him to submit to psychotherapy. We found no evidence that Thomas Pickard of the Personnel Unit acted with retaliatory intent in this matter. We are not able to reach a conclusion regarding employees in the EAP and HCPU, however. These employees informed us that they required a release from Whitehurst before they could discuss confidential medical information relating to the decision to refer Whitehurst to psychotherapy. Despite our repeated requests, Whitehurst did not provide such a release. Our investigation of this allegation was limited, and our findings are therefore qualified, because Whitehurst would not give a release to allow certain individuals to talk with us.

 

Finally, Whitehurst alleged that the FBI OGC retaliated against him by the release of so-called Henthorn materials (information that might materially impeach Whitehurst) to the prosecutors in the World Trade and Simpson cases. We do not find that the FBI OGC generally, or former Principal Deputy General Counsel Steven Robinson in particular, engaged in retaliatory conduct by the release of these materials.

 

V.Frederic Whitehurst

 

Whitehurst is a complex figure. He is an experienced scientist who has expressed concern about the integrity and validity of the Laboratory's forensic work. He has identified significant problems in some cases and in certain practices by the Laboratory which have been confirmed in our investigation. In addition, however, Whitehurst has accused many of his colleagues of perjury, fabrication of evidence, conspiracy and similar intentional misconduct. Those allegations are not supported by the facts identified in our investigation. In his complaints within the FBI and to the OIG, Whitehurst has often accused others of wrongdoing when he did not know the pertinent facts, he has used hyperbole and incendiary language that blurs the distinction between facts and his own speculation, and he has otherwise displayed a serious lack of judgment.

 

Whitehurst justifiably raised concerns within the Laboratory about Rudolph's work habits, and Whitehurst's persistence on this issue ultimately resulted in the FBI directing a review of all of Rudolph's cases. Similarly, Whitehurst correctly complained that EU examiners in certain cases have testified outside their expertise or issued opinions that are not scientifically supportable -- the World Trade, Avianca, and Oklahoma City cases being prominent examples. Whitehurst brought the Trepal case to the OIG's attention, and we identified several deficiencies in work done by Roger Martz in that case. We recognize also that Whitehurst's complaints have resulted in both internal reviews within the FBI and this OIG investigation, and thereby may have helped achieve changes that will enhance the objectivity and reliability of the Laboratory's forensic work, particularly in explosives-related cases.

 

In raising his concerns, however, Whitehurst has also made numerous serious allegations that are not factually supportable. For instance, we did not find facts to support his allegations that examiners J. Thomas Thurman and Roger Martz perjured themselves, fabricated evidence, and improperly circumvented Laboratory protocols in the VANPAC case. Nor did we find facts showing perjury by examiners Hahn in the Avianca case, Thurman in the Kikumura case, or Martz in the Simpson case.

 

Whitehurst himself has demonstrated poor judgment in several matters we reviewed. In the Psinakis case it was improper for him to communicate his concerns to defense experts without first talking with Rudolph himself, the MAU chief, or the prosecutor. Although Whitehurst reported what he had done to his superiors because he thought he may have violated an FBI policy, when he was later disciplined he did not appear to accept that he had done anything wrong.

 

In the Avianca case, Whitehurst failed adequately to review his own work and otherwise acted unprofessionally. As discussed in Part Three, Section E, Whitehurst in 1990 had examined evidence from the bombing of an Avianca airplane and found residues of PETN and RDX. According to Whitehurst, EU examiner Richard Hahn contacted him in June 1994 on the eve of the first trial and asked Whitehurst if he could rebut claims by an alleged confessor that an ammonium nitrate dynamite was in the bomb. Whitehurst then prepared a memorandum which raised certain questions about his own earlier identification of PETN and RDX and concluded that his findings were consistent with the possible use of an ammonium nitrate explosive. Without talking to Hahn or sending him the memorandum, Whitehurst sent the memorandum directly to the prosecutor.

In his June 1994 memorandum, Whitehurst speculated that an instrumental overload in an LC/Chemiluminescence analysis performed in 1990 might have obscured the presence of nitroglycerine, a component of dynamite. In 1990, Whitehurst should have recognized this potential problem and had the test re-run in light of the overload. Moreover, in 1994 Whitehurst failed adequately to review his case notes. Those notes reflected that a thin layer chromatography (TLC) test was also performed in 1990, and it did not detect nitroglycerine. These results rebut Whitehurst's speculation that nitroglycerine may have been present but was obscured by an overload in the LC/Chemiluminescence analysis. Without adequately reviewing his own test results, Whitehurst concluded that his 1990 analyses might have obscured the presence of nitroglycerine, and he disseminated this incorrect information to the prosecutor.

 

Whitehurst committed several other errors in connection with his 1994 memorandum: 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 possible 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. All of the errors in the memorandum tended to create problems for Hahn, the FBI, and the prosecution in an ongoing trial.

Whitehurst should have discussed his concerns with Hahn before sending the memorandum to the prosecutor. Had he done so, some of the questions he raised might have been resolved or at least narrowed. We find unconvincing Whitehurst's explanation that he did not tell Hahn about his concerns or send him a copy of the memorandum because Whitehurst believed Hahn would simply ignore him. Whitehurst was asked by Hahn to address a particular issue shortly before a trial began. Whatever their personal differences, it was inappropriate and unprofessional for Whitehurst to not respond directly to Hahn.

 

In his work on the investigation of the attempted assassination of former President George Bush, Whitehurst should have described in writing his comparison of explosives used in the Bush device with explosives found earlier in Southeast Asia. If Whitehurst had presented his conclusions in writing, it would have helped avoid his subsequent concerns that his results had been misreported by EU Chief J. Christopher Ronay or others.

 

Over the last two years, Whitehurst has written more than 200 letters to the OIG expressing his concerns about various aspects of the Laboratory. Many of those concerns seem to reflect an effort to identify any possible grounds to criticize other examiners who in his view are not appropriately qualified for their positions. Whitehurst has faulted others for drawing conclusions based on insufficient evidence. Ironically, he has exhibited that same fault in many of the accusations he has made against others in the Laboratory.

 

As described in Part Four, we do not find that Whitehurst was subjected to retaliation by the decisions to transfer the explosives residue program from the MAU to the CTU, to have Whitehurst remain in the MAU after the transfer, or to have Whitehurst begin training to become qualified as a paint examiner and then later to work on environmental crimes. Partly as a result of the sweeping accusations Whitehurst has made against others, it has become increasingly difficult for him to work with examiners in the EU and other units of the Laboratory. Moreover, Whitehurst appears to lack the judgment and common sense necessary for a forensic examiner, notwithstanding his own stated commitment to objective and valid scientific analysis.

 

Based on our investigation, we do not think that Whitehurst can effectively function within the Laboratory. We recommend that the FBI consider what role, if any, he can usefully serve in other components of the FBI. In making its decisions about Whitehurst, the FBI should bear in mind that some of his complaints were valid and that it is important not to discourage employees from appropriately raising concerns about the quality of the Laboratory's work.

 

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