SECTION H1: YU KIKUMURA
The FBI's comments regarding Thurman's testimony in this case are set forth in our discussion of Thurman in Part Five, below.
U.S. Attorney's Response
The U.S. Attorney objects to our criticism of Thurman for his testimony that a finding of three prills of ammonium nitrate in a paper bag indicated that the person "likely had a much larger quantity of amonium nitrate." The U.S. Attorney argues that Thurman's testimony was an accurate statement because "one would not purchase three prills of ammonium nitrate, because that quantity has no useful value."
OIG Reply
The U.S. Attorney misunderstands our conclusion, stating that we concluded that Thurman should have said that it was "logical" as opposed to "likely" that a person would have had a larger quantity. Our point was that Thurman erred when he stated that it was "likely" that a person in possession of three prills of ammonium nitrate once had a larger quantity. The most Thurman could have said was that possession of a larger quantity was a possibility. Accordingly, we have revised the wording of this paragraph to clarify our point but have otherwise not changed the conclusion.
SECTION H2: NORFOLK TANK FARMS
The FBI did not make any comments on this section.
SECTION H3: MELISSA BRANNEN
The FBI did not make any comments on this section.
SECTION H4: PAOLO BORSELLINO
FBI Response
The FBI argues that Robert Heckman does not deserve criticism for testifying (1) that C-4 is increasingly used in mining and quarry operations, (2) that RDX usually appears as a solid block, (3) that most detonators use RDX, and (4) that the FBI had "electronically examined" fragmented circuit boards. The FBI seems to concede that Heckman’s testimony was imprecise, but argues that we should recognize what Heckman meant to say. FBI Response at 31-32.
OIG Reply
The FBI’s objections are not persuasive.
(1)Heckman testified that it is increasingly common for C-4 to be used in quarry and mining operations. The FBI argues that Heckman only meant to say that C-4 is no longer exclusively a military explosive. That may be true, but he did not say that. Moreover, it is still relatively rare for C-4 to be used in mining.
(2)Heckman testified that RDX usually appears as a solid block but can be pulverized into powder. The FBI argues that Heckman nevertheless recognizes that RDX is manufactured as a powder. Again, that may be true but Heckman did not say that. In any event, RDX is normally not found as a solid block unless it is in a block of C-4 or some other explosive.
(3)Heckman testified that most detonators use RDX. The FBI argues that Heckman did not testify inaccurately since most detonators use either RDX or PETN. Still, RDX is not the most common ingredient of detonators.
(4)Heckman testified that the FBI had "electronically examined" the circuit board fragments. The FBI argues that Heckman only meant to say that the FBI "did an electronic analysis of the circuit to determine what electrical component were in the circuit board fragments." Again, however, Heckman did not say that. His testimony implies that a more extensive electronic examination had been performed by the FBI.
SECTION H5: GINO NEGRETTI
FBI Response
The FBI objects to the way we characterized Alan Jordan's conduct in the draft Report. (1) The FBI contends that we should not have stated that Jordan "inaccurately" reportedWhitehurst's findings. Rather, we should have stated that the testimony "could have been more accurate." (2) Also, according to the FBI, we should not have stated that Jordan "doubted" that the explosion was caused by low explosive, since Jordan was sure that it was not caused by a low explosive. (3) The FBI contends that we should not have stated that there was no basis to conclude that Jordan colluded with counsel to prevent Whitehurst from testifying, because there was no allegation that Jordan colluded with counsel. FBI Response at 32-33.
OIG Reply
(1)Contrary to the FBI's suggestion, Jordan did not accurately testify to Whitehurst's findings. Jordan was asked on direct examination if Whitehurst sent Jordan a positive chemical analysis on a piece of evidence. In response, Jordan stated that Whitehurst sent back "findings of materials, residues consistent with RDX and HMX." In fact, Whitehurst identified RDX and found residues consistent with HMX.
The FBI suggests that we should be less critical of Jordan because Jordan's misstatement actually favored the defense. In fact, Jordan's misstatement favored the prosecution. The prosecution's cooperating witness said that he used dynamite to construct the bomb. As a rule, dynamite does not contain RDX. Thus, by characterizing the identification of RDX less positively, Jordan's misstatement tended to favor the prosecution by not so directly undercutting the prosecution's witness.
The FBI also argues that Jordan's testimony should be viewed in context, since immediately before this testimony he was asked whether the device was "consistent with" a booster. Thus, according to the FBI, Jordan was predisposed to use the phrase "consistent with." Contrary to the FBI's suggestion, an examiner is not free to paraphrase another examiner's findings based on the way the question is asked. Findings are findings. The way those findings are reported should not turn on the vagaries of the phraseology used by the attorney at trial.
(2)We have revised this portion of the section to reflect that Jordan formed the opinion that a low explosive could not have caused the damage he saw. We sought to convey this point in the draft Report by saying that Jordan "doubted" that a low explosive could have caused the damage, but, as the FBI suggests, a reader might perceive that Jordan was not sure about this.
(3)In the draft Report, we stated: "Likewise, we find no basis to conclude that Jordan colluded with counsel to prevent Whitehurst from testifying." The FBI claims that there is no allegation that Jordan colluded with the prosecutor in Negretti. We made this statement based on statements by Whitehurst during his interview. We agree, however, that "collude" is too strong, and we removed the word "collude" from the final Report.
SECTION H6: CONLON CASE
FBI Response
The FBI complains that we criticized Heckman too harshly. Specifically, the FBI argues that: (1) Heckman's addition to Whitehurst's dictation was based on Heckman's discussions with Whitehurst and therefore, strictly speaking, Heckman did not "add his own observations about the IMS results from the explosion scene," as stated in our draft Report; and (2) since Heckman was just trying to be helpful by making the report more understandable, it is unduly harsh to criticize Heckman's additions as "improper." FBI Response at 34.
OIG Reply
(1)The FBI is incorrect. Heckman added three paragraphs immediately after Whitehurst's findings. Heckman told us that the first paragraph of his addition to the dictation was a reiteration of his discussion with Whitehurst. In that paragraph, Heckman essentially states that an IMS was used at the scene but the results were not confirmed. But Heckman told us that the second paragraph concerning the degradation of explosive residues was "my information that I have picked up from discussions with experts like Fred Whitehurst and Steve Burmeister. . .also from reading different books. . . . It's knowledge that I have through my background, training and experience. . . ." As to the third paragraph, which states that the results of the IMS test at the crime scene "may well have been true," Heckman told us that it is "almost a reiteration of what Fred said . . . ." Whitehurst, on the other hand, commented that he did not agree with the statements in the third paragraph and that Heckman "was on his own" in arriving at the conclusion that the IMS results may well have been true. In sum, the evidence indicated that Heckman added his own observations about the IMS results and his own erroneous interpretation of what Whitehurst may have told him about the results. Contrary to the FBI's suggestion, this is not a case where Heckman simply reported what Whitehurst told him.
(2)The FBI also errs in contending that our criticism of Heckman's actions is too harsh since Heckman was only trying to be helpful. Heckman seriously erred when he added to Whitehurst's dictation without authorization, no matter what his motive. Heckman's overstatement of the data is not excused by his allegedly pure motives.
SECTION H7: JUDGE JOHN SHAW
FBI Response
In its response to the draft Report, the FBI states that because Ron Kelly did not microscopically observe inorganic materials in the smokeless powders, nothing suggestedadditional testing was necessary. FBI Response at 34.
OIG Reply
The OIG considered the FBI’s response and concluded that no revisions to the draft Report were appropriate. As noted in the draft Report, it is conceivable that other inorganic materials may have been present that Kelly did not observe microscopically and that would not have been identified by the analytical tests performed. Examiner Steven Burmeister, who is now the Laboratory’s senior examiner of explosives residues, told the OIG that he thought smokeless powders generally should be tested for the presence of inorganic materials and that he understood Kelly is now doing so. This fact underscores the OIG’s more general point that the protocols for the examination of smokeless powders and explosives residues should be integrated, so that the tests performed do not fortuitously vary depending on the examiner assigned.
SECTION H8: GHOST SHADOW GANG
The FBI did not make any comments to this section.
SECTION H9: THE UNABOM ARTICLE
U.S. Attorney Response
In response to the draft Report, Robert Cleary, a Special Attorney to the U.S. Attorney General, advised the OIG that the government would not be relying upon any of Rudolph’s work in the UNABOM case in prosecuting Theodore J. Kaczynski. Cleary further requested that the Report be amended to reflect this information.
OIG Reply
The OIG concurs in this request, and the final Report has been revised accordingly.
FBI Response
The FBI in its response also urged that the OIG omit a reference in the draft Report to an October 5, 1995 letter from James Maddock of the FBI OGC. The letter stated that the AUSA determined that Whitehurst's allegations were unsubstantiated. The FBI OGC concluded that the AUSA's determination bore on the credibility of Mr. Whitehurst and also illustrated the disruptive impact that his allegations have had on FBI operations. The draft Report noted that the FBI OGCwas not justified in drawing its conclusion based on a non-scientist prosecutor's evaluation of the merits of Whitehurst's allegations. The FBI complains that this is unfair criticism of FBI OGC. FBI Response at 36.
OIG Reply
As explained in the report, given the other information that the FBI OGC had at the time, we do not think the FBI OGC could justifiably rely on conclusions from a non-scientist prosecutor to evaluate the merits of the allegations raised by Whitehurst, who had largely repeated concerns raised by examiner Steven Burmeister. Accordingly, we have considered the FBI’s response on this point and concluded that no revisions to report are appropriate.
SECTION H10: THURMAN’S ALLEGED ALTERATION OF DICTATION
FBI Response
In the William Wirt Middle School case, one of the cases discussed in this section, we conclude that J. Thomas Thurman failed to revise his report in light of Burmeister’s objections. Based on a recent interview of Burmeister by the FBI (in which he said he did not remember telling Thurman about his objections), the FBI argues that we should reevaluate our conclusion finding Thurman "culpable." FBI Response at 41.
OIG Reply
In a 1996 OIG interview, Burmeister stated that he did tell Thurman about his concerns. Based on Burmeister's contemporaneous memorandum noting that he told Thurman about his objections to Thurman's report and Burmeister's 1996 OIG interview, we reject the FBI's argument.
FBI Response
The FBI complains that we failed to note (1) that no prosecutions resulted in any of the 13 cases in which AE dictation was substantively altered and (2) Thurman has not revised Whitehurst’s dictation since 1992.
OIG Reply
In the Report we included the information provided by the FBI, but as we note in the Report, Thurman's conduct cannot be excused on the ground that there were few prosecutions in cases where he made the errors.
SECTION H11: HIGGINS’ ALLEGED ALTERATION OF DICTATION
FBI Response
The FBI contests our conclusion that Higgins should be reassigned. FBI March 24, 1997 Response at 1.
OIG Reply
The FBI’s comments are not persuasive. Our reasons for recommending the reassignment of Higgins are set forth in Part Five of the Report.
FBI Response
The FBI states that David Williams, not Higgins, was the PE for Laboratory report No. 51. Therefore, the FBI requests that we omit this report from the ten reports for which the FBI could not produce signed dictation. FBI March 24, 1997 Response at 1.
OIG Reply
We have made the requested change based on the FBI’s representation that an error was made and that Williams’ name was erroneously omitted from this document.
FBI Response
The FBI objects to our statement that Higgins prematurely terminated his initial interview and had to be compelled to appear for future interviews. FBI March 24, 1997 Response at 1-2.
OIG Reply
We commented upon Higgins’ abrupt termination of the interview because we considered his actions in reaching our conclusions. Thus, it is proper for us to mention those actions in our report. Higgins was one of only two FBI employees who refused to appear voluntarily for an interview. He chose to terminate his initial interview when questioned about his alteration of one of Whitehurst’s dictations. Our questions to Higgins about those alterations were appropriate and certainly were no more difficult than he might face at trial. Accordingly, we think that Higgins' conduct in terminating the interview was not warranted. The fact that Higgins was given the right to terminate the interview does not mean that we cannot consider the appropriateness of his actions.
FBI Response
The FBI contends that we made a "blanket assumption" that Whitehurst was more credible than Higgins. The FBI maintains that this assumption is flawed because (1) Whitehurst has made numerous factually unsupportable statements as discussed in other parts of our report, and (2) Whitehurst did not always generate new dictation when he agreed to alterations, contrary to his claims. FBI March 24, 1997 Response at 2.
OIG Reply
The OIG did not make blanket assumptions about credibility but considered each of the contested reports on a case-by-case basis. Specifically, with respect to each contested report, we considered the explanations provided by Whitehurst and Higgins during their interviews. In many cases, their explanations were wholly contradictory. We made certain credibility determinations based on the manner in which these examiners responded to our questions. We also considered their responses in light of other evidence, including (1) the dictation as initialed by Whitehurst’s unit chief, (2) the presence or absence of documentation showing that the alterations were authorized, (3) the presence or absence of data supporting the changes made to the dictation, (4) the cogency of the explanations provided by Whitehurst and Higgins, (5) Higgins’ admissions that he made what we considered to be substantive changes to dictations in at least some of the cases, (6) comments by Unit Chief Ronay concerning the practices of the Explosives Unit in making unilateral changes to AE dictation, and (7) the views expressed by Higgins and Whitehurst about the appropriateness of such unilateral changes.
The FBI seems to suggest that we must discount Whitehurst’s allegations on this issue because in other parts of our draft Report, we found some of Whitehurst’s allegations to be unsupportable. We disagree. Just as we did not make a blanket assumption about Higgins’ credibility based on his answers to some questions, we did not make a blanket assumption about Whitehurst’s credibility based on our findings in other parts of the Report. Again, we looked at each Laboratory report on a case- by-case basis.
The FBI also observes that while Whitehurst claimed he generated new dictation whenever he agreed to make a change to his dictation, he changed his own dictation without generating new dictation in at least three Laboratory cases. We note that in two of the three cases, Whitehurst personally documented the changes by making and initialing the change in his own handwriting on the face of his dictations. (See dictations for Reports No. 2 and 31.) In the remaining case, Whitehurst generated dictation that was initialed by his unit chief and then generated new dictation when he added the results from Dr. Mary Tungol’s FTIR examination of three additional specimens. This evidence suggests that when Whitehurst added to or changed his own dictation, he would either re-issue such dictation or at least make the changes on the face of the dictationsin his own handwriting. [ In a footnote, the FBI also refers to the dictation for Report No. 25 as another instance in which Whitehurst failed to revise his dictation after adding a sentence. Because the FBI could not locate or produce the signed dictation in this Laboratory case, however, it is inappropriate to speculate as to what may appear in the signed dictation. ] In contrast, we saw no evidence of such documentation with respect to the changes made by Higgins.
FBI Response
With respect to Report No. 16, the FBI states that it is unfair to conclude that Higgins altered the report by omitting reference to the fact that Whitehurst’s results were "preliminary." The FBI argues that we should determine whether Whitehurst satisfied his own obligation to finalize his conclusion. FBI March 24, 1997 Response at 4.
OIG Reply
As indicated in our draft Report, Whitehurst reviewed the official FBI case file and found no evidence that he had agreed to remove the word "preliminary." The evidence suggests that Whitehurst would have generated new dictation if he had changed his dictation or otherwise documented such changes. Even if Whitehurst failed to "satisf[y] his obligation to finalize his conclusion," that failure did not permit Higgins to represent that a final conclusion had been reached.
FBI Response
With respect to Report No. 17, the FBI argues that we cannot conclude that Higgins altered the dictation, because according to the dates of the Laboratory report and dictation, Whitehurst did not prepare the dictation until after the Laboratory Report. FBI March 24, 1997 Response at 4-5.
OIG Reply
For the reason cited by the FBI, we stated in our draft Report that we are unable to determine whether Higgins improperly changed the dictation regarding PETN. We did conclude that Higgins improperly added the statement regarding lead styphnate and lead azide. Higgins acknowledged that he added this statement based on his own x-ray work, even though that x-ray work alone would not support such a finding. The FBI does not comment on this finding. Thus, we find no reason to change this conclusion.
FBI Response
With respect to Report No. 20, the FBI objects to our conclusion that Higgins "misreported" Whitehurst's findings. The FBI contends that (1) Higgins accurately included Whitehurst’s finding that specimens K1 and K2 are "consistent with" flash powder, but simply added to that finding by noting that specimens K1 and K2 "contained" flash powder; (2) in any event, Higgins was qualified to identify flash powder in specimens K1 and K2; and (3) the OIG should not characterize the omission of Whitehurst’s opinions as "selective." FBI March 24, 1997 Response at 5.
OIG Reply
(1)Contrary to the FBI’s suggestion, when Higgins stated that the specimens "contained" flash powder, he misreported Whitehurst’s finding that the specimens were only "consistent with" flash powder.
(2)The FBI argues that Higgins was qualified to identify flash powder based on, among other things, physical characteristics and the circumstances of its seizure. In the context of a Laboratory report, the identification of a substance like flash powder requires expertise beyond that possessed by Higgins. This is especially true where, as here, Higgins identifies flash powder in the instrumental analysis section, suggesting that the results were obtained through instrumental analysis. If Higgins wished to identify flash powder based on physical characteristics alone, at the very least he should have included that opinion in another part of the report and clearly identified the basis for that opinion. (We note, however, that since Higgins submitted the specimen to Whitehurst for an opinion, there was no reason for him to include his own opinion, which necessarily would be less specific.)
(3)The use of the word "selective" is appropriate. It is clear that in many cases, Higgins chose to omit only those portions of Whitehurst’s dictation expressing his forensic opinion. He included the remainder of the dictation verbatim. Thus, it is appropriate to conclude that Higgins selectively omitted portions of these dictations.
FBI Response
With respect to Report No. 22, the FBI contends that Higgins properly omitted Whitehurst’s opinion statement because it was stronger than his earlier finding and was not supportable. The FBI also reports that Higgins believes that it was appropriate to omit the opinion statement because it was repetitive. FBI March 24, 1997 Response at 6.
OIG Reply
(1)The FBI’s response ignores the real issue. Whether Higgins had reason to question Whitehurst’s dictation is not the point. Whitehurst prepared the dictation, Whitehurst's unit chief approved the dictation, and hence Higgins had no authority to unilaterally change it. If Higgins objected to the dictation, he had every right to seek to change the dictation through the procedures established within the Laboratory for that purpose. Specifically, he should have discussed his objections with Whitehurst and/or Whitehurst’s unit chief and sought their permission to change the dictation.
(2) Contrary to the FBI's assertion, the sentences at issue are not inconsistent. In the first sentence, Whitehurst states his specific analytical findings; in the next sentence, he states his forensic opinion based on those findings.
(3) Higgins did not have the mandate or the qualifications to determine the technical correctness of Whitehurst's report. For example, even if one of the sentences was "stronger" than the other, as the FBI contends, Higgins was not qualified to determine on his own which of the two statements should remain in the Laboratory Report.
(4) The FBI's contention that "Higgins properly omitted a statement by Whitehurst that did not appear to be supported by the evidence" constitutes an acknowledgment, contrary to the FBI's earlier argument, that Higgins was "selective" in omitting Whitehurst's opinion.
FBI Response
With respect to Report No. 30, the FBI acknowledges that the report could have been clearer, but states that Higgins erred in formatting the Laboratory report, not in altering the dictation. FBI March 24, 1997 Response at 7.
OIG Reply
The FBI's comments are not persuasive. We agree that Higgins' additions were potentially misleading because of the format, but they were equally misleading because of their content and substance. Higgins stated that the results obtained by Whitehurst were consistent with Portuguese PE-4A, even though Whitehurst, the explosives residue expert, told us that he did not have enough information to reach that conclusion. Higgins added this opinion to Whitehurst's dictation under the heading "Instrumental Analysis," suggesting that the opinion was the result of Whitehurst's instrumental analysis. Higgins also suggested that this opinion was based on "these results," when it was based on markings on the wrapper containing the explosives. Finally, contrary to the FBI's assertion, we note that we did not use the phrase "alteration of dictation" in the subsection describing Report No. 30.
FBI Response
With respect to Report No. 31, the FBI claims that Higgins did not omit Whitehurst's forensic opinion in this case as alleged in the draft Report. FBI March 24, 1997 Response at 7.
OIG Reply
The FBI is correct and the OIG has removed this subsection from the Report. In our draft, we stated that Report No. 31 was another instance in which Higgins prepared a report that omitted Whitehurst's forensic opinion. When we investigated the FBI's claim that the forensic opinion had not been omitted, we determined that the copy of Report No. 31 that the FBI provided on August 2, 1996 was incomplete. That copy did not include page 3, the page containing the missing forensic opinion. We relied on that incomplete copy in our investigation and in interviews with Higgins and Whitehurst, leading both examiners to believe that the forensic opinion had been omitted. (Our records further show that we requested and received a copy of the entire official FBI case file for Report No. 30 in mid-November 1996. That copy of the official FBI case file contained a complete copy of the Laboratory report; however, because we did not suspect the error, we did not compare the first copy of Report No. 30 provided by the FBI to the copy in the official FBI case file and did not discover the discrepancy.)
In light of these events, the FBI requests that we re-evaluate our finding that there were any improper omissions of Whitehurst's forensic opinions. We decline to do so. The evidence still establishes that Higgins omitted Whitehurst's forensic opinions without authorization from several reports, including Report Nos. 20, 22, 35, 36, 46 and 47.
FBI Response
With respect to Report No. 35, the FBI contends that Higgins properly omitted Whitehurst’s forensic opinion, in this instance because it was redundant and potentially misleading. FBI March 24, 1997 Response at 7-8. With respect to Report No. 36, the FBI again contends that Higgins properly omitted Whitehurst's opinion, in this instance to ensure the report was "unambiguous, clear, and defensible." FBI March 24, 1997 Response at 8-9.
OIG Reply
The FBI acknowledges that Higgins violated the policy requiring verbatim incorporation of dictation, but attempts to justify that breach of policy. We reject that approach. The issue is not whether Higgins was correct in wanting to change the dictation, but whether he made those changes pursuant to established Laboratory procedures.
FBI Response
With respect to Report No. 37, the FBI asks that we revise our conclusion that Higgins altered this report. The FBI states that because Higgins and Whitehurst had a miscommunication about this report, it is not accurate to characterize this result as an alteration of dictation. FBI March 24, 1997 Response at 10.
OIG Reply
In our subsection concerning Report No. 37, we do not characterize Higgins' actions as an alteration of the dictation. We do state that Higgins erred by adding dictation concerning accelerants analysis reportedly done by Whitehurst without Whitehurst's express permission. We also stated that Higgins should have requested new dictation from Whitehurst, a request that would have revealed their possible miscommunication.
FBI Response
With respect to Report No. 42, the FBI requests that we re-evaluate our finding because Higgins "vehemently denies" adding "6% binders" to the dictation and Whitehurst stated that this addition was "not that big a deal." FBI March 24, 1997 Response at 10.
OIG Reply
In our interview of Higgins, Higgins did not "vehemently deny" making this addition; rather, he stated that he did not specifically recall this matter but assumes that he would not have written "6% binders" without being told by Whitehurst. Whitehurst has told us that he did not know why he said in his earlier interview that this alteration was "not that big a deal," and added that "it is a big deal when somebody changes your report." Whitehurst also told us, "To say it was 6 percent binder, it could have been wrong." We see no reason to change our conclusion.
FBI Response
With respect to Report No. 46, the FBI contends that Higgins properly omitted Whitehurst's opinion, in this instance because Whitehurst rendered an opinion outside his area of expertise. FBI March 24, 1997 Response at 10-11.
OIG Reply
As previously noted, the issue is not whether Higgins was correct in wanting to change the dictation, but whether he made those changes pursuant to established Laboratory procedures.
We also do not agree that Higgins merely omitted an opinion that encroached into his area of expertise or merely "rephrased" Whitehurst's opinion as suggested. Although Higgins apparently objected to part of the sentence describing the "red colored hobby fuse," he changed the entire sentence, including Whitehurst's analytical explosives residue results.
Finally, we reject the FBI's suggestion that the procedures in place in the Laboratory worked in this case. Those procedures required that Higgins obtain permission from Whitehurst before changing his dictation.
FBI Response
With respect to Report No. 47, the FBI again contends that Higgins properly omitted Whitehurst's opinion, in this instance because Whitehurst rendered an opinion outside of his area of expertise. FBI March 24, 1997 Response at 11.
OIG Reply
Our responses with respect to Report No. 46 apply to this matter as well.
FBI Response
The FBI objects to our statement that completion of this section was delayed for several weeks because of the FBI's failure to produce documents. The FBI explains that its ability to respond to document requests was impeded by erroneous case numbers on several of Whitehurst's dictations. FBI March 24, 1997 Response at 11-12.
OIG Reply
In mid-January 1997, we discovered that many of the copies of official FBI case files previously produced by the FBI were incomplete and did not include dictations that should have been in the file. At that time, our investigators undertook to personally review the original files at the FBI. We also learned about the FBI's documentation retention practices, which included the use of "Enclosures Behind Files" and "Bulkies" that accompanied the official FBI case files. In several cases, the FBI had not reviewed these accompanying files for missing dictations. As a results of our efforts, which took several weeks, we and the FBI were able to locate many of the missing dictations.
We have omitted any reference to these events in the Report for three reasons. First, this discussion is not germane to the topic of this section, Higgins's alleged alterations of dictation, and may distract the reader from our major points. Second, we have addressed deficient record retention practices generally in our conclusion. Third, we agree with the FBI that it has exerciseddiligence and commitment in producing documents, information, and assistance in response to numerous requests in the course of our investigation.
SECTION H12: TOBIN ALLEGATIONS
IMPROPER WIRE GAUGING
FBI Response
In its response to the draft Report, the FBI states that after Thurman was unable to obtain training for the EU from Tobin on measuring wire gauge and certain other issues, Thurman contacted other examiners and an industry specialist and Thurman then himself instructed the EU on wire gauging as Tobin had requested. FBI Response at 41-42.
OIG Reply
The OIG has revised its draft Report to reflect the information supplied by the FBI. The final Report further notes that the events described by the FBI in its response evidently occurred after Thurman was interviewed by the OIG in September 1996, because he said at the time of the interview he did not know what the industry practice was and that he had told Tobin he could set up the training whenever Tobin wanted to do it.
THE LA FAMILIA CASE
FBI Response
In its response to the draft Report, the FBI asked that the OIG delete its conclusions that Thurman and Mohnal seemed to be more concerned about Tobin’s motive for issuing certain dictation and that Thurman appeared to be chiefly concerned with defending a report issued by Mohnal and attempting to persuade others that Tobin’s dictation should be withdrawn. The FBI states that, according to Thurman, the OIG did not interview him about his concerns. FBI Response at 42.
OIG Reply
The OIG Report has been revised to state that Thurman and Mohnal seemed to be more concerned about Tobin’s motive or manner in raising his concerns than about the merits of the points raised. The OIG’s conclusions in this matter regarding Thurman are based on what he told the OIG in his interview about how he responded to Tobin’s concerns. We do not think any other revisions are appropriate.
THE ALCEE HASTINGS MATTER
FBI Response
In its response to the draft Report, the FBI urges that the OIG omit the conclusion that Malone testified "falsely" in the Alcee Hastings investigation because it incorrectly suggests he was intentionally deceptive. FBI Response at 44.
OIG Reply
The OIG has revised the draft Report to acknowledge the FBI’s response and to note that we here use the term "false" as it is employed in other legal contexts, that is, to describe something that is untrue or not in accord with the facts. Accordingly, we treat as separate issues whether Malone’s testimony was false and, if so, whether Malone gave such testimony deliberately or with an intent to deceive.
Doar Response
The OIG also received an extensive response to the draft Report from John Doar, the attorney who served as the chief counsel for the judicial committee that investigated alleged misconduct by Hastings. Among other things, Doar maintained that the draft Report incorrectly suggested that the judicial committee had been influenced by Malone’s testimony.
OIG Reply
Based on the information supplied by Doar and several additional interviews, we revised and expanded the draft Report to: (1) state explicitly that the OIG investigation focused on Tobin’s allegations concerning Malone’s testimony, and we did not otherwise review or evaluate actions by the FBI or others related to the impeachment of Hastings; (2) expand the discussion of the events related to the alleged bribery scheme between Hastings and William Borders, so that Malone’s 1985 testimony about a purse is placed in better context; (3) recognize that the findings and recommendations in the judicial committee’s report and the articles of impeachment later passed by the House of Representatives do not refer to the purse or the tensile test that was the subject of Malone’s testimony; (4) state explicitly our conclusion that Malone did not tell Doar during the proceedings before the judicial committee that Tobin, and not Malone, had performed the tensile test; and (5) to state that although the Laboratory failed in 1989 to investigate adequately Tobin’s allegations about Malone’s 1985 testimony, we did not conclude that its failure was part of a deliberate or concerted effort to conceal Tobin’s concerns.
The revisions to the draft Report do not alter the OIG’s conclusions that Malone testified falsely before the judicial committee in 1985 and that Laboratory management, specifically
Kenneth Nimmich, failed to assure that allegations Tobin made in 1989 were adequately investigated.
SECTION H13: GEORGE TREPAL
FBI Response
In its response, the FBI maintains that Martz correctly identified thallium nitrate in the adulterated Coca-Cola. The FBI states that the draft Report was wrong in stating that Martz had overstated the significance of his analytical results and in positing an erroneous scenario that thallium chloride and sodium nitrate had been added to the Coca-Cola. On the latter point, the FBI notes that the SEM/EDXA profile on Q1 did not indicate an elevated level of sodium and this result excludes the possibility that sodium nitrate had been added to the Coca-Cola. The FBI response then purports to set forth "the analysis by which Martz determined that thallium nitrate had been added to the Coca-Cola at issue." FBI Response at 17-20.
OIG Reply
After receiving the FBI’s response, we interviewed FBI examiners Thomas Jourdan and Steven Burmeister, who assisted in preparing the FBI’s response on this case. The interviews clarified that the FBI’s response was not based on Martz’s explanation of how he had reached the conclusions stated in his reports or testimony, but instead was based on Jourdan and Burmeister’s own interpretation of analytical test results contained in the case file and on discussions with Martz. This distinction is significant, because Martz testified in his deposition and at trial that he had relied only on diphenylamine tests and ion chromatography tests to conclude that thallium nitrate had been added to the Coca-Cola. The FBI’s response discusses the results of several other tests, including SEM/EDXA, MS, and XRPD, which Martz told the OIG that he did not rely upon in reaching his conclusion.
Based on the FBI’s response and the follow-up interviews with Jourdan and Burmeister, we revised the Report in several respects. First, we acknowledge that given the tests 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. Martz, however, did not limit his conclusions this way, and as explained in the Report, we find his work on the 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) Martz 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 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.
Martz also provided a written response to the OIG’s draft Report in which he commented on the Trepal case and certain other matters. Based on Martz’s response, we have revised the draft Report to clarify that in the World Trade Center case, Martz as unit chief approved examiner Lynn Lasswell’s conclusion that mass spectrometry had identified urea nitrate on certain evidence, when the results in fact merely established the presence of urea and nitrate ions. With regard to determining if drug residues were present in Q206, the bottle found in Trepal’s garage containing thallium nitrate, Martz appears to have misunderstood our conclusion that he should have performed a drug screen protocol. We did not mean to suggest that he should have done testing on biological or urine specimens, but rather that he should have made an extraction of the sample and followed a protocol of the type routinely used in forensic laboratories for drug identification. We have revised the draft Report accordingly.
With regard to the purity of thallium nitrate in Q206, we acknowledge in the final Report that Martz in his response states that the XRPD would detect any adulteration with crystalline material exceeding 15 percent and that the FTIR would detect any adulteration with infrared absorbing material exceeding 15 percent. This is different from what Martz stated in his deposition and at trial in Trepal, and we still conclude that he then made unsupported statements in testifying about the purity of the thallium nitrate in the bottle. Finally, we note our disagreement with Martz’s statement in his response that "[t]here is no essential difference between [his] opinion that thallium nitrate was added to the specimen and [his] report dictation that states `is consistent with thallium nitrate having been added. . . .’" For reasons stated in the Report, we think Martz in testifying erred by offering a stronger opinion about the identification of thallium nitrate than he had expressed in the dictation reviewed and approved by his supervisor for inclusion in the Laboratory report.
PART FOUR: WHITEHURST’S ALLEGATIONS OF RETALIATION
The FBI, the U.S. Attorneys' Office, and other responders did not make any comments on this section.
PART FIVE: FINDINGS AND RECOMMENDATIONS CONCERNING INDIVIDUALS
ROGER MARTZ
FBI Response
The FBI contends that our findings assign disproportionate blame to Martz for his 1989 review of Rudolph’s cases.
The FBI also repeated points otherwise made in its response concerning other cases on which Martz worked, such as World Trade Center, VANPAC, and Trepal. FBI Response at 37-38.
OIG Reply
We considered the FBI’s response and concluded that no changes were appropriate in our discussion of the issue of Martz's review of Rudolph's cases.
We have considered the FBI's comments on Martz's work on other cases and made such revisions as are discussed earlier in the sections of this reply that concern the particular cases. Based on the responses of the FBI and Martz’s own response, we did not think our overall findings should be modified. We did revise our comments concerning Martz’s threshold of scientific proof and lack of scientific rigor to clarify that we draw our conclusions based on Martz’s reporting of his 1989 review of Rudolph’s casework, his defense of Lasswell’s interpretation of mass spectrometry results in the World Trade Center case, and his work in Trepal. We also recommend in the final Report that another qualified examiner review any analytical work by Martz that is to be used as the basis for future testimony.
J. THOMAS THURMAN
FBI Response
The FBI complains that Part Five, Section I.C. regarding allegations against Thurman gives the false "impression that ‘where there is smoke, there is fire’" because of the absence of a "road map to the OIG’s conclusions." FBI Response at 40.
The FBI suggests that we omit from the Yu Kikumura section our criticisms that Thurman’s testimony was ambiguous or contained minor inaccuracies in four respects. Alternatively, the FBI asks that we repeat the observation we made in Part Two about the pressures examiners face in giving in-court testimony. FBI Response at 43.
The FBI also makes several comments regarding our discussion of Thurman's conduct in light of Tobin's allegations about the reporting of wire gauging and the La Familia case. FBI Response at 41-42.
OIG Reply
Because Part Five, Section I.C. is a short section, we conclude that a "road map" is unnecessary.
The FBI does not challenge the accuracy of our conclusion that Thurman’s testimony was ambiguous or inaccurate in the identified respects in the Kikumura case. We have considered the FBI’s response on this point and concluded that no revisions are appropriate.
We have previously discussed, in Section H12, the FBI’s response as it concerns Thurman's conduct with respect to Tobin’s allegations about the reporting of wire gauging and the La Familia case.
ALAN JORDAN
The FBI's response to the OIG's discussion of Jordan's testimony in the Negretti case is discussed in Section H5, and its response to the OIG's discussion of Jordan's conduct in the Bush assassination matter is discussed in Section D.
MICHAEL MALONE
FBI Response
The FBI objects to the OIG's conclusion that Malone testified "falsely" before a judicial committee investigating conduct by former federal judge Alcee Hastings, because Malone’s testimony was not intentionally deceptive.
OIG Reply
We clarified our conclusions by noting that we use the term "false" to signify something that is untrue or not in accord with the facts. We find that Malone falsely testified that he had himself performed a tensile test and that he also testified inaccurately and outside his expertise concerning the test results.
ROBERT WEBB
FBI Response
As noted above in our discussion of responses concerning the VANPAC case, the FBI in its response asked the OIG to consider whether its conclusions regarding Webb are overly critical or inaccurate. FBI Response at 46.
OIG Reply
We considered the FBI’s response on this point and concluded that no revisions to the Report were appropriate.
CHARLES CALFEE
FBI Response
The FBI contends that in statements to the OIG, Calfee did not mean to express that one examiner should testify based on the incomplete notes of another examiner, but instead that the second examiner should do the analysis himself and not testify from the notes of another examiner at all. FBI Response at 47.
OIG Reply
We have revised the Report to acknowledge this information provided by the FBI and to observe that this does not excuse Rudolph’s incomplete case notes.
KENNETH NIMMICH
A minor date change was corrected.
ROD ASBURY
Minor inaccuracies in the descriptions of the posts Asbury held were corrected.
HOWARD SHAPIRO
FBI Response
The FBI contends that the draft Report is misleading in stating that we found no basis to conclude that Shapiro was involved in the decision to reassign Whitehurst or otherwise directed or engaged in any retaliation against him. The FBI requests that we note that the OIG has no factual basis to believe that Whitehurst suffered retaliation, so Shapiro could not have directed or participated in any retaliation. FBI Response at 50.
OIG Reply
We have considered the FBI’s response on this point and concluded that no revisions are appropriate. The conclusions regarding Shapiro do not, as the FBI suggests, indicate that Whitehurst in fact suffered any retaliation. Our conclusions regarding Whitehurst’s retaliation claims are set forth in Part Five of the Report. Although we generally rejected Whitehurst’s allegations of retaliation, our conclusion concerning his referral for psychiatric examination was qualified because Whitehurst himself would not consent to the release of certain information.
PART SIX: ENHANCING QUALITY IN THE LABORATORY
FBI Response
The FBI indicates that, with one exception described below, it agrees with each of the recommendations made by the OIG to enhance quality within the Laboratory and that it is taking or has already taken steps to implement those recommendations. In the final Report, we briefly summarize the FBI’s response concerning the particular recommendations made by the OIG. FBI Response at 51-71.
The FBI noted its disagreement with the OIG’s recommendation that the investigative and crime scene management functions of the EU should be transferred out of the Scientific Analysis Section of the Laboratory. The FBI notes that bomb scene investigations are unique and that it is necessary for explosives examiners to be involved at the scene. FBI Response at 55-57.
OIG Reply
As noted above, it appears that the FBI has misunderstood our recommendations in this regard. The OIG did not intend to suggest the EU examiners should be excluded from crime scenes, and we noted in the draft Report that "examiners in the EU should continue to advise and assist in the gathering of evidence at bombing scenes." To clarify our intent on this point, we revised the recommendation concerning the EU to state, "Examiners in the EU should continueto advise and assist in gathering evidence at bombing scenes, but primary responsibility for conducting investigations and directing crime-scene management should rest with components of the FBI outside the Scientific Analysis Section."
PART SEVEN: SUMMARY OF OIG RECOMMENDATIONS FOR LABORATORY
The FBI's comments regarding the OIG's recommendations are set forth in Part Six.
PART EIGHT: CONCLUSION
The FBI, the U.S. Attorneys' Offices, and other responders did not make any comments to this section.
THE FBI REQUEST TO THE OIG FOR FURTHER INSPECTION
FBI Response
In its response to the draft Report, the FBI noted that it remains firmly committed to enhancing the quality of its Laboratory. The FBI further requested that the OIG conduct "progress reviews" on the implementation of its recommendations every six months until both the OIG and the FBI are satisfied that the Laboratory has made the changes necessary to address the issues raised in the draft Report. FBI Response at 71.
OIG Reply
The OIG acknowledges that some form of follow-up review by the OIG may be appropriate. The nature and timing of that review, however, should be the subject of further discussions between the FBI and the OIG to allow the new Laboratory Director to be selected and to settle into the position and to avoid unnecessary duplication with other reviews that are already contemplated. The FBI reports that it will have an external, pre-accreditation review conducted this spring by inspectors from the National Forensic Science Technical Center, and that it contemplates that it will submit its accreditation application to ASCLD/LAB by the end of 1997. Accordingly, at an appropriate time after the new Laboratory Director is named, we suggest that the OIG and the FBI address the issue of further OIG reviews of the Laboratory.
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