PART TWO: BACKGROUND TO THE OIG INVESTIGATION
In September 1995, the Department of Justice announced that the Office of the Inspector General (OIG) was investigating allegations made by Frederic Whitehurst about the FBI Laboratory. Whitehurst is an FBI Supervisory Special Agent (SSA) with a doctorate in chemistry who has worked in the FBI Laboratory since 1986. During most of his career in the Laboratory, Whitehurst performed chemical analyses of explosives and explosives residue, and his criticisms relate primarily to bombings and explosives cases.
Over several years, Whitehurst has accused other FBI personnel of serious misconduct and even illegal acts. Whitehurst alleges that Laboratory examiners have improperly testified outside their expertise, presented insupportable conclusions, perjured themselves, fabricated evidence, and failed to follow appropriate procedures. He also contends that FBI management retaliated against him for making these accusations. His allegations involve some of the most highly publicized and significant cases investigated by the FBI in recent years, including the mail bomb assassination of United States Circuit Judge Robert Vance, the World Trade Center bombing, the attempted assassination of former President George Bush in Kuwait, and the bombing of the Alfred P. Murrah Federal Building in Oklahoma City.
The OIG investigation focused on Whitehurst' s allegations, which largely concern three components of the Laboratory: the Explosives Unit, the Chemistry-Toxicology Unit, and the Materials Analysis Unit. At the outset, the Inspector General emphasized that the investigation would not be restricted to Whitehurst' s specific allegations, and that the report would also address any other pertinent issues identified in the course of the investigation and comment on ways to further enhance the quality of the Laboratory' s work. We have not, however, attempted to review the Laboratory overall. This report should not be interpreted as either criticism or approval of the Laboratory as a whole or of particular components that are not addressed in the report.
We also think it appropriate to state explicitly our perspective in conducting the investigation and reaching our conclusions. The FBI Laboratory aspires to provide forensic services of the highest quality, and we did observe some impressive work by Laboratory personnel. We recognized, however, that one cannot expect an examiner' s work or testimony to have been perfect in every case if it is subjected to a detailed, after-the-fact analysis such as we employed in our investigation. Laboratory examiners work under time constraints and other pressures; scientists can legitimately differ in their interpretation of data; and knowledge and practices in forensic disciplines evolve over time. We also reviewed, with the benefit of hindsight, certain testimony given under courtroom examination, where a witness generally cannot reflect at length on the questions or answers. Bearing these points in mind, when we critically evaluated individual conduct or Laboratory practices, we attempted to apply standards that were generally accepted at the time of the events in question.
Whitehurst' s allegations encompass events dating from the early 1980s to the present. During this period, there have been significant changes in the Laboratory and the broader legal and scientific environment in which it operates. To place Whitehurst' s allegations and the OIG investigation in context, this Part of the report provides background information. Section I briefly describes the organization of the FBI Laboratory, the Laboratory units that are central to Whitehurst' s allegations, and some recent developments affecting the Laboratory in general. Section II describes Whitehurst' s background and career in the Laboratory and then reviews the history of his complaints about Laboratory practices and personnel. Section III summarizes the OIG' s role in investigating Whitehurst' s allegations and how this Report was prepared.
I. The FBI Laboratory
This section of the report describes the Laboratory' s organization and the particular units that are the focus of Agent Whitehurst' s allegations. We also discuss three developments over the last several years that have affected, or will likely affect, the Laboratory' s operations. These are: (1) the Laboratory' s adoption of a formal quality assurance program and the decision to pursue accreditation from the American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB); (2) the FBI' s decision to reduce the number of agents assigned as examiners within the Laboratory and to replace many of them with professional support examiners who are not agents; and (3) changes in the legal standard for the admissibility of scientific testimony as a result of the Daubert decision and changes in the federal rules for pretrial disclosure concerning expert witnesses.
A. Organization of the Laboratory
The FBI' s Laboratory is formally known as the Laboratory Division. Approximately 583 FBI personnel now work in this division. As shown in the organizational chart that appears in Attachment B to this Report, the Laboratory Division comprises five sections: the Scientific Analysis Section (SAS), the Latent Fingerprint Section, the Special Projects Section, the Forensic Science Research and Training Center (FSRTC), and the Investigative Operations and Support Section. Sections within the Laboratory Division are divided into different units according to function. Although there have been certain organizational changes since the 1980s, the Laboratory' s basic organizational structure and managerial hierarchy have largely remained the same.
The Laboratory Division is headed by an Assistant Director of the FBI. Donald W. Thompson has served as Acting Laboratory Director since January 16, 1996. His predecessor as Laboratory Director was Milton Ahlerich, who held the position from July 1994 until his retirement in January 1996. John Hicks was the Laboratory Director from 1989 until his retirement in July 1994.
The Scientific Analysis Section (SAS) is responsible for forensic examinations, except those involving the examination of latent prints or documents. Until recently, the SAS was divided into seven units: Chemistry-Toxicology, Explosives, DNA Analysis, Firearms and Toolmarks, Hairs and Fibers, Materials Analysis, and Forensic Science Systems. The SAS is headed by a Section Chief, currently Randall S. Murch, and each unit is headed by a Unit Chief.
Cases submitted for analysis in the SAS are typically assigned to a Principal Examiner, who may also be referred to as the Primary Examiner or PE. The Principal Examiner is responsible for preparing the Laboratory' s final report on the case, which may include analyses performed by that examiner and other Laboratory examiners designated Auxiliary Examiners or AEs. When Auxiliary Examiners complete their examinations, they submit reports, called dictation, for inclusion in the Principal Examiner' s official report. For example, an explosives case might be assigned to a Principal Examiner in the Explosives Unit, who prepares a Laboratory report based on his or her own work and on dictation submitted by Auxiliary Examiners in other units.
In bombing and other explosives-related cases, two different units normally have important roles. The Explosives Unit (EU) has been responsible for the analysis of the overall construction of explosive devices, and examiners from that unit have been assigned as the Principal Examiners in most explosives-related cases. EU examiners, however, are not chemists and do not perform a chemical analysis of the explosive material of unexploded devices or the explosives residue of exploded devices. The EU examiners generally do not have academic degrees or significant experience in scientific disciplines; most of them are experienced FBI agents with backgrounds in military explosive ordnance disposal (EOD).
Until mid-1994, the chemical analysis of most explosives and explosives residue was largely conducted by examiners in the Materials Analysis Unit (MAU). From 1989 until 1994, Frederic Whitehurst was the Laboratory' s senior examiner of explosives residue. In 1993, Steven Burmeister also began examining explosives residue, and since mid-1994, Burmeister has been the Laboratory' s senior examiner in that field. Before 1994, the Chemistry-Toxicology Unit (CTU) also worked on certain explosives cases because that unit performed analyses to identify smokeless powder. The CTU had one or more mass spectrometers (a sophisticated instrument used to identify chemical materials), which the CTU used to analyze various substances for its own examinations or for other units, including the MAU. In the summer of 1994, SAS Chief Kearney transferred responsibility for explosives residue analysis from the MAU to the CTU. Burmeister was reassigned to the CTU, while Whitehurst remained in the MAU and later began training to become an examiner of paints and polymers.
B. The Laboratory' s Quality Assurance Plan and Accreditation
Changes in Laboratory practices are occurring due to the Laboratory' s decisions over the last several years to implement a formal quality assurance plan and to seek accreditation by ASCLD/LAB. These changes merit comment for two reasons. In evaluating Whitehurst' s accusations that others have violated Laboratory policies or otherwise acted unprofessionally, it is important to recognize that the Laboratory' s practices related to quality assurance have evolved significantly. This fact is also relevant in attempting to identify ways to further improve the quality of the Laboratory' s work.
Before November 1992, there was no formal quality assurance plan for the Laboratory. Instead, the Laboratory sought to promote quality through practices that included: (1) assigning agents to the Laboratory only after they had worked for at least three years in the field and requiring one to two years of on-the-job training in the Laboratory for agents to qualify to work as examiners; (2) consultation among examiners about the interpretation of their results; (3) review and approval of work by unit chiefs before reports were released; and (4) proficiency tests. Because there was no comprehensive quality assurance plan, however, separate units within the Laboratory largely implemented quality assurance measures on an individual basis.
In August 1991, Laboratory Director Hicks approved a recommendation by James Kearney, then the Chief of the FSRTC, to create a quality assurance group to develop a quality assurance and safety program for the entire Laboratory. At that time, an ASCLD Study Committee within the Laboratory was already conducting an internal review of practices and procedures based on standards used by the American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB). ASCLD/LAB administers a voluntary program for accreditation of forensic laboratories based on several objective criteria.
On September 6, 1991, the Study Committee reported to Hicks that it had completed its self-review of the Laboratory. The Study Committee observed that the Laboratory could meet the requirements for accreditation, provided that ASCLD/LAB clarified certain requirements and the Laboratory implemented certain recommendations made by the Study Committee. Within a week of the self-review, however, the Study Committee advised Hicks that the internal inspection showed that several units had not incorporated recently approved policies, including policies related to protocols and the handling of evidence, into their respective manuals.
In December 1991, Study Committee member James Mudd participated as an observer in an ASCLD/LAB inspection of another laboratory. Mudd was impressed by the thoroughness of the inspection. Based on Mudd' s experience, Kearney sent a January 17, 1992, memorandum to Hicks noting that:
Compared to the ASCLD/LAB inspection, the initial internal inspection conducted by the [Study Committee] lacked sufficient depth to be a true reflection of what might be encountered during a[n] actual ASCLD/LAB inspection. Therefore, before the Laboratory Division applies for accreditation by ASCLD/LAB, a more thorough and in-depth self-evaluation, based on ASCLD/LAB accreditation criteria, should be undertaken by the Laboratory Division.
Kearney also noted that the ASCLD/LAB inspection placed a great deal of emphasis on documentation and the extent to which a laboratory followed documented procedures. Hicks endorsed Kearney' s recommendation that the Laboratory undertake a more thorough self-evaluation. During 1992, Mudd and others at the FSRTC developed a formal Quality Assurance Program Implementation Plan (the QA plan ) based primarily on the ASCLD/LAB standards for accreditation.
Hicks approved the QA plan and distributed it to the section chiefs in November 1992, with a memorandum noting that the plan would be administered by the Quality Assurance and Safety Group (QASG) at the FSRTC. The plan outlined the organizational structure, procedures, and implementation schedule for a comprehensive, Laboratory-wide QA program. In 1993, Hicks approved a recommendation that each unit chief designate a quality control coordinator for each unit. The QASG also began developing a program to audit quality assurance within the Laboratory. Training of representatives from different units for the QA program was conducted in May and November 1993. Over the next two years, the Laboratory continued to refine its QA program and to conduct further internal reviews.
The Laboratory has also implemented several new policies since 1991 as it has formalized its quality assurance program. In May 1991, Hicks approved recommendations by the Study Committee that the Laboratory adopt policies related to the marking and storage of evidence, the use of new technical procedures, corrective actions, and open proficiency testing. Examiners know they are being tested in open proficiency tests; in contrast, they are not aware they are being tested in blind proficiency tests. In September 1991, Hicks endorsed the Study Committee' s recommendation that individual units establish manuals for protocols, quality control, training, and safety. Hicks recirculated these policies in January 1994, along with a directive that each unit chief prepare a memorandum describing his unit' s compliance.
Two reviews of the Laboratory were completed in the summer of 1994. In June 1994, the Audit Division of the OIG issued a report on the Laboratory. The Audit Report noted that not all Laboratory units had implemented the QA plan uniformly and recommended, among other things, that the Laboratory improve its procedures for documenting casework. That summer, the QASG evaluated the implementation of the QA plan by different units. The QASG review found inconsistent policies and procedures among units on such matters as the unit manuals, evidence handling policies, and protocol format. The review also noted a lack of Laboratory-wide guidelines for casework documentation, report writing, and proficiency testing.
In July 1994, FBI Director Louis J. Freeh appointed Milton Ahlerich to succeed John Hicks as Laboratory Director after Hicks retired. Freeh directed Ahlerich to improve quality assurance generally in the Laboratory and to actively pursue accreditation. Consistent with this directive, and as a result of the Laboratory' s internal reviews and the OIG audit, Ahlerich implemented several new policies.
In September 1994, Ahlerich issued a memorandum restating Laboratory-wide policies for case review, documentation, evidence handling, and safety. In January 1995, the Laboratory adopted revised policies for blind proficiency testing. The next month, Ahlerich approved guidelines for standard operating procedures in the Laboratory. In July 1995, new policies concerning the preparation of case notes and the monitoring of testimony by Laboratory examiners were adopted. In September 1995, Ahlerich approved a new open proficiency testing program. That same month, Ahlerich also approved a new policy for the control of evidence.
Implementation of a formal QA plan is important to the quality of the Laboratory' s work and is a preliminary step to obtaining accreditation by ASCLD/LAB. Many federal, state, and local forensic laboratories in the United States have been accredited, including eight operated by the Drug Enforcement Administration and three operated by the Bureau of Alcohol, Tobacco, and Firearms. Laboratories in Australia, Canada, Hong Kong, New Zealand, and Singapore also have been accredited by ASCLD/LAB.
The FBI Laboratory has not previously applied for accreditation, although the FBI supported the formation of ASCLD and the later development of the accreditation program. Former Laboratory Director Hicks told us that the FBI had not sought accreditation during his tenure for reasons that included: (1) the costs and time demands of the ASCLD/LAB inspection; (2) the fact that accreditation was not required for examiners to testify; and (3) doubts by management whether the Laboratory needed to be formally accredited. ASCLD/LAB itself acknowledges that the fact that a laboratory chooses not to apply for accreditation does not imply that the laboratory is inadequate or that its results cannot be trusted.
To prepare for accreditation, in January 1995, the Laboratory created a separate Quality Assurance Unit (QAU) as part of the FSRTC in Quantico, Virginia. The QAU was charged with working with other units of the Laboratory and management to review practices and procedures and to assure that the standards for accreditation are met. James Mudd, who had worked on the Laboratory' s quality assurance programs since 1990, was named the Quality Assurance Program Manager.
The QAU gave a presentation about the accreditation process to all Laboratory Division employees in March 1995. Subsequently, Ahlerich circulated a memorandum dated May 31, 1995, asking all Laboratory employees to read the ASCLD/LAB manual and to return a signed acknowledgment that they had done so. The Laboratory initially planned to submit an application in 1995, but that goal was not met because the QAU and other units of the Laboratory have continued to review and revise various policies and procedures.
Accreditation will be an on-going process. It begins with a self-evaluation by the applicant laboratory, which then submits an application to ASCLD/LAB. Teams of inspectors, who are from other accredited laboratories, inspect the applicant laboratory to determine if it meets specified criteria. After the inspection report is prepared, the applicant laboratory has a one-year period in which to remedy any deficiencies before ASCLD/LAB decides on the application. Once a laboratory is accredited, it must submit annual accreditation review reports to ASCLD/LAB. To remain accredited, a laboratory must complete the entire application process again after five years.
The FBI advised the OIG in February 1997 that it now intends to submit its written application to ASCLD/LAB later this year. Because the decision on accreditation may not occur until as long as a year after the on-site inspection, it will still be some time before the Laboratory obtains accreditation.
C. The Hiring of Non-Agent Examiners
While attempting to implement a formal QA plan and to otherwise prepare for accreditation, the FBI Laboratory in the last few years has seen major changes in its staff of forensic examiners. Until 1994, the Laboratory Division generally required its examiners to also be FBI agents, except in the Latent Fingerprint section, where the examiners have always been non-agent professional staff. The FBI in 1993 reduced the number of agents assigned to FBI Headquarters in Washington, D.C., a step that had a substantial impact on the Laboratory Division. Many experienced agent examiners have left the Laboratory Division and have been transferred to FBI offices around the country, where they are working as investigative agents rather than as forensic examiners.
The Laboratory Division has begun training civilian professional support examiners to replace some of the former agent examiners. New examiners have been hired from other forensic laboratories and from personnel who have worked in the Laboratory but were previously ineligible to become examiners because they were not agents. As of September 1996, the Laboratory had approximately 204 examiners, including 61 agent examiners and 143 professional support examiners. Of the latter, 102 had fully completed their training and had been deemed qualified by the FBI to testify to their examinations. Within the SAS, there were 68 examiners, including 38 agent examiners and 30 professional support examiners. In contrast, at the end of 1993, there were 60 agent examiners in the SAS and 103 agent examiners in the Laboratory Division overall, as well as 84 non-agent fingerprint examiners.
The reduced agent staff has continued to do case work while also assisting in the training of new examiners. The Laboratory Division acknowledges that these personnel changes have caused some disruption and delays in the processing of cases. Over time, the FBI intends to have professional support examiners occupy nearly all examiner positions in the Laboratory.
D. Changing Legal Standards for Admissibility and Disclosure
In the last several years, the legal standards for the admissibility of scientific expert testimony and for pretrial disclosure concerning expert testimony have significantly changed. Because these evolving standards are part of the context in which the Laboratory operates, and they may affect the operations of forensic laboratories in general, we comment briefly on them here.
The United States Supreme Court in June 1993 adopted a new standard for the admissibility of scientific evidence in its decision in Daubert v. Merrill Dow Pharmaceuticals, Inc. The Court there held that Federal Rule of Evidence 702 supersedes the general acceptance test established nearly 70 years earlier in Frye v. United States. Rule 702, the Supreme Court concluded, does not require general acceptance in the relevant scientific community as an absolute prerequisite for the admissibility of scientific evidence. Instead, when presented with proposed scientific testimony, the district court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and is therefore reliable in an evidentiary sense.
Daubert explicitly contemplates that the district courts will have a gatekeeping role with respect to scientific expert evidence. While declining to adopt a definitive checklist or test, the Supreme Court noted several factors a court should consider. Those factors include: (1) does the theory or technique involve testable hypotheses; (2) has the theory or technique been subject to peer review and publication; (3) are there known or potential error rates and are there standards controlling the technique' s operation; and (4) is the method or technique generally accepted in the scientific community? The trial court must also consider the relevance or fit of the proposed testimony by determining if the reasoning and methodology can properly be applied to the facts at issue.
The application of Daubert in criminal cases will be clarified through further court decisions, and we do not attempt in this Report to assess Daubert' s implications for testimony by Laboratory examiners in particular areas. Nor do we address how courts should distinguish scientific expert testimony from non-scientific expert testimony or what standards should determine the admissibility of the latter.
The federal rules concerning the disclosure of expert testimony changed effective December 31, 1993. Although the Federal Rules of Criminal Procedure previously allowed defendants to obtain certain test results and reports, some courts had held that the rules did not necessarily require pretrial disclosure of the identity of expert witnesses who had not prepared reports. Under the amended rules, the government, if requested by the defendant, must provide a written summary of intended expert testimony. The summary must describe the opinions of the witness, the bases and reasons therefore, and the qualifications of the witness.
Expert testimony may be subject to increased scrutiny as a result of Daubert and the changes in the disclosure rules. If so, these new legal standards will have an impact on forensic laboratories as well as the courts. Laboratories will need to provide sufficient information so counsel can make the required written disclosures, including the bases and reasons for opinions and the expert' s qualifications. Such information in turn will likely be part of the material considered by district courts in those cases where Daubert is applied to evaluate proposed expert scientific testimony.
II. Whitehurst and His Allegations
This section describes Agent Whitehurst' s background and career in the FBI and provides a brief history of his allegations about misconduct in the Laboratory.
Frederic Whitehurst entered college in 1965 at East Carolina University in Greenville, North Carolina. In 1968, he interrupted his college studies to enlist in the U.S. Army. Whitehurst served in the Army until 1972, when he was honorably discharged after three tours of duty in Vietnam. In 1974, Whitehurst received a bachelor' s degree in chemistry from East Carolina University. He received a doctorate in chemistry from Duke University in 1980 and then worked for two years as a research associate in chemistry at Texas A & M University.
In 1982, Whitehurst joined the FBI. After completing training at the FBI facility in Quantico, Virginia, he worked as a field agent on criminal investigations in Houston, Sacramento, and Los Angeles. In 1986, he began working in the Laboratory at FBI Headquarters in Washington, D.C., where he was assigned to the Materials Analysis Unit (MAU). As a matter of FBI policy, Laboratory scientists generally do not testify until they have been qualified as examiners. Whitehurst was qualified by the Laboratory as an examiner in forensic chemistry in 1987. From that time until 1994, his work focused on the analysis of lubricants, explosives, and explosives residue.
After the explosives analysis program was transferred to the CTU in June 1994, Whitehurst remained in the MAU, where he was reassigned to begin training to become an examiner of paints and polymers. He maintains that the transfer of the explosives analysis program to the CTU and his reassignment were in retaliation for his allegations that Laboratory scientists improperly performed analyses in certain cases, including the World Trade Center bombing case. In 1996, Whitehurst was reassigned to the newly-formed Hazardous Material Response Group (HMRG) after the MAU' s paint and polymer analysis program was transferred to the CTU. In the HMRG, Whitehurst conducted studies related to environmental crimes investigations while he also continued to work on becoming qualified as an examiner in paints and polymers.
Whitehurst' s complaints about other FBI scientists arose soon after he joined the Laboratory. Whitehurst trained as an examiner under Terry Rudolph, who also has a doctorate in chemistry and who was the Laboratory' s senior examiner in the field of explosives residue analysis from 1977 to 1988. According to Whitehurst, Rudolph was very sloppy in his work habits. Whitehurst maintains that Rudolph kept his work area dirty and in disarray, that he was indifferent to problems of contamination, and that he reached conclusions that were not supported by adequate analyses. Whitehurst also maintains that he voiced his concerns about Rudolph to the MAU chiefs and others in the Laboratory to no avail.
In May 1989, Whitehurst communicated his concerns about Rudolph' s work to persons outside the Laboratory during the trial in United States v. Psinakis. In that case, Whitehurst reexamined evidence that Rudolph in 1982 had determined contained traces of the explosive PETN. While the trial was under way, Whitehurst approached a defense expert and told him that he thought the identification of PETN on the evidence might have resulted from contamination due to Rudolph' s work habits. Whitehurst did not tell the prosecutor or Rudolph about his misgivings before he spoke with the defense expert.
After returning to the Laboratory from the Psinakis trial, Whitehurst advised his unit chief and the Laboratory Director of his actions because he was concerned that he may have violated FBI policy. In August 1989, the FBI' s Office of Professional Responsibility (FBI OPR) began an investigation of Whitehurst' s actions in the Psinakis trial. John Hicks, the Laboratory Director, wrote to FBI OPR in November 1989, recommending that Whitehurst receive an oral reprimand. Hicks later repeated this recommendation in the fall of 1990. Consistent with FBI procedures, the FBI Administrative Service Unit (ASU) reviewed the matter to determine an appropriate sanction. On October 26, 1990, Whitehurst was suspended for one week without pay and placed on six months probation.
In July 1989, the Assistant United States Attorney (AUSA) in Psinakis wrote to Laboratory Director Hicks and stated that Rudolph' s analysis was deficient, that the judge had nearly excluded Rudolph' s testimony, and that the defense had seriously impeached Rudolph. This was the first formal, written complaint against Rudolph. It came from a reliable source, independent of Whitehurst. The prosecutor did not criticize Whitehurst, but instead noted that he appeared sincerely committed to the integrity of the judicial process.
As a result of the letter from the prosecutor, MAU chief Jerry Butler reviewed 200 of Rudolph' s cases and found administrative shortcomings including missing notes and lack of documentation. After Butler recommended a more thorough technical review, CTU chief Roger Martz reviewed 95 of Rudolph' s case files. In August 1989, Martz reported that Rudolph' s analyses supported the results and that Martz found no technical errors in the final reports. The Laboratory concluded that further inquiry was not required. Despite the prosecutor' s written complaint, the Laboratory did not then review a transcript of Rudolph' s testimony in Psinakis, and Rudolph was never disciplined for his actions in that case.
In December 1990, Whitehurst again complained within the Laboratory about Rudolph' s work habits and also alleged that Rudolph was a racist, had abused annual leave, had perjured himself, and had lied to an AUSA. As a result, FBI OPR opened an investigation on Rudolph and the Laboratory in March 1991 directed MAU Chief James Corby to review a number of Rudolph' s cases. After reviewing 200 cases, Corby found that 57 lacked sufficient information to support certain of Rudolph' s conclusions. Based on this review, in April 1992, SAS Chief Kenneth Nimmich recommended to Director Hicks that Rudolph review the 57 cases and attempt, based on his recollection or personal notes, to add documentation to support the findings and then prepare a memorandum for each file describing any additional information. Nimmich also recommended that Rudolph be severely reprimanded for his casework. Instead, Director Hicks admonished Rudolph orally at a meeting in which Hicks also gave Rudolph a cash bonus.
After the FBI OPR completed its investigation, the FBI Administrative Services Division (ASD) advised Rudolph in June, 1982 that the inquiry had not developed facts warranting any administrative action. In March 1993, Nimmich reported to Hicks that Rudolph had reconstructed 57 files and that the action taken was documented in the files. Nimmich further recommended that the matter be closed. Whitehurst apparently was not formally told by Laboratory management about the results of the FBI OPR investigation or the various reviews of cases worked by Rudolph.
In the spring and summer of 1993, Whitehurst became embroiled in controversies within the Laboratory about the analysis of certain evidence from the February 1993 bombing of the World Trade Center. Briefly stated, he contended that Lynn Lasswell improperly labeled certain peaks on the output from an Ion Mobility Spectrometer (IMS) as indicative of the explosive urea nitrate; that Lasswell incorrectly concluded that urea nitrate could be identified with the use of mass spectrometry in a report approved by his Unit Chief Roger Martz; and that another examiner had pressured Whitehurst to remove qualifying language from his conclusions in a report. In July 1993, Whitehurst sent Hicks memoranda describing these complaints and also asserting that Lasswell and Martz were not qualified to examine explosives.
Whitehurst' s allegations first came to the attention of the OIG in the fall of 1993 during an OIG audit of the Laboratory Division. When OIG auditors interviewed Whitehurst in October and December 1993, he described his complaints about other Laboratory personnel in the World Trade Center investigation and Rudolph. He later wrote two memoranda to OIG auditor Dan Strohl in December 1993 that primarily concerned the World Trade Center case.
The first trial related to the bombing of the World Trade Center began in September 1993. The government submitted copies of the Strohl memoranda to the district court, which in turn directed the government to give the memoranda to the defense attorneys and to allow Whitehurst to be interviewed by them. Defense counsel interviewed Whitehurst in January 1994; the transcript of the interview was placed under seal by the district court. Neither the prosecution nor the defense called Whitehurst as a witness at this trial.
In February 1994, Whitehurst' s attorney, Stephen Kohn, wrote to the FBI describing various allegations regarding the Laboratory and stating that an investigation should be conducted by a special counsel. FBI General Counsel Howard Shapiro responded to Kohn that the FBI Office of General Counsel (FBI OGC) would conduct an investigation itself. Over the next several months, the FBI OGC interviewed Whitehurst and other persons, reviewed documents, and reviewed the previous internal investigations. The FBI OGC investigation is described in a May 1994 memorandum to Shapiro from Steven Robinson, the Principal Deputy General Counsel, and John Sylvester, an Assistant General Counsel. Robinson and Sylvester concluded that, except for the Rudolph matter, the Laboratory had fully investigated each of Whitehurst' s allegations and taken appropriate action. Regarding Rudolph, the authors of the May 1994 memorandum noted that they did not think his work product would withstand significant scientific or legal scrutiny and they recommended that MAU chief James Corby review all of Rudolph' s casework.
During the spring of 1994, the OIG Audit Division was completing a draft report based on its review of the Laboratory. In May 1994, the Audit Division referred the allegations made by Whitehurst to the OIG Investigations Division (OIG INV). That month, OIG INV agents interviewed Whitehurst, who repeated allegations he had made earlier to OIG audit personnel. After meeting with the FBI OGC and reviewing the May 1994 memorandum by Robinson and Sylvester, OIG INV concluded that the issues raised by Whitehurst were largely being addressed by either the OIG audit process or the FBI OGC investigation.
OIG INV did, however, decide to review further Whitehurst' s allegations that conclusions or dictation he had prepared as an auxiliary examiner had not been accurately incorporated by EU examiner J. Thomas Thurman into final Laboratory reports. This was an issue that the FBI OGC had also determined merited further investigation. In the fall of 1994, the FBI gave the OIG copies of reports prepared by Thurman that incorporated dictation by Whitehurst. After reviewing these reports, Whitehurst identified to the OIG what he maintained were material alterations in several of his dictations. In January 1995, the OIG interviewed James Corby, then the unit chief of the MAU, who had also reviewed Thurman' s reports and concluded that some of Whitehurst' s dictations had been significantly changed.
OIG INV sought to interview MAU examiner Steven Burmeister to determine if his dictation, like Whitehurst' s, had been changed in reports prepared by Thurman. Because Burmeister was involved in several on-scene bombing investigations, this interview did not occur until May 1995. In the interview, Burmeister did not identify any significant changes to his dictation, but he did support Whitehurst' s allegations that some CTU examiners in the World Trade Center case had examined explosives residues without having been qualified by the Laboratory to perform such examinations and they had incorrectly concluded that urea nitrate had been identified in certain evidence.
Based on the Burmeister interview and additional correspondence from Whitehurst, the OIG concluded that it should review Whitehurst' s allegations more broadly. Over the spring and summer of 1995, the OIG discussed with FBI OPR possibly conducting a joint investigation. In July 1995, the Inspector General determined that the OIG should expand its investigation to include those allegations previously being reviewed by FBI OPR. FBI Director Freeh agreed with this determination and advised the OIG that the FBI would cooperate fully in the investigation.
Whitehurst' s allegations became publicized in the late summer and early fall of 1995. On August 14, 1995, he was called by the defense to testify in the trial of Sheik Omar Abdel-Rahman, who was charged with various co-defendants with a conspiracy that included the World Trade Center bombing as an overt act, other bombings in New York, and the murder of two individuals. In testifying, Whitehurst claimed that he had been pressured to bias his interpretation of evidence in the World Trade Center investigation and that initial reports about the presence of urea nitrate were incorrect.
Nearly one month later, on September 12, 1995, defense attorneys subpoenaed Whitehurst to testify in People v. O.J. Simpson, the California state court trial of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman. Shortly thereafter, Whitehurst made several media appearances, appearing on the television programs Prime Time Live on September 13, 1995; The Larry King Show on September 14, 1995; and The Today Show on September 25, 1995. An article about Whitehurst' s allegations also appeared in the September 25, 1995, issue of Newsweek magazine.
In response to the media attention, the FBI issued a press release on September 13, 1995. The release noted that Whitehurst had raised a variety of concerns about forensic protocols and procedures employed in the FBI Laboratory, and stated that the FBI had vigorously investigated his concerns and is continuing to do so. The FBI press release further stated that the FBI had reviewed more than 250 cases involving prior work in the Laboratory and to date had found no evidence tampering, evidence fabrication, or failure to report exculpatory evidence. The press release observed that [a]ny finding of such misconduct will result in tough and swift action by the FBI. The release also stated that the FBI was fully cooperating with the OIG investigation of Whitehurst' s allegations.
On September 16 and 17, 1995, defense attorneys and prosecutors in the Simpson case interviewed Whitehurst regarding Roger Martz and related matters. In July 1995, Martz had testified in the Simpson trial that he had examined certain blood samples and concluded that they did not contain blood that had been preserved with the compound EDTA. The defense in Simpson proposed calling Whitehurst to testify that Martz had a habit or custom of biasing test results to support the prosecution.
In an order issued September 20, 1995, California Superior Court Judge Lance Ito ruled that Whitehurst would not be allowed to testify. Judge Ito noted that Whitehurst had no direct knowledge concerning the EDTA testing in the Simpson case and that whether Martz was qualified to conduct explosives residue testing in other cases had no direct bearing on the EDTA testing.
III. The OIG Investigation
On September 18, 1995, the Department of Justice announced that the OIG was investigating allegations by Whitehurst and that the OIG would select a panel of forensic scientists to assist in the investigation. The OIG invited both the FBI and Whitehurst to suggest names of possible outside experts. Laboratory Director Milton Ahlerich responded with suggestions and also stated that the Laboratory welcomed a review of its work and would cooperate completely with the OIG to facilitate whatever review it deemed appropriate. Whitehurst also said he welcomed an outside review of his allegations, and he too suggested experts who might participate.
In identifying experts to assist in the investigation, the OIG sought scientists who are respected internationally and who have expertise both in the relevant scientific areas and in the operation of scientific laboratories. On November 8, 1995, the OIG announced that five scientists would serve as consultants in the investigation. Those scientists, their positions, and their qualifications are described below:
Four attorneys from the Department of Justice also played central roles in the investigation. These attorneys are Barry Rand Elden, an Assistant United States Attorney and the Chief of Appeals for the United States Attorney' s Office for the Northern District of Illinois; Scott Bales, an Assistant United States Attorney in the District of Arizona; Nicole Cubbage, a prosecutor in the Fraud Section of the Justice Department' s Criminal Division; and Lawrence Lincoln, an Assistant United States Attorney in the Western District of Washington. Also assisting in the investigation were several personnel from the OIG, including Inspector Alison Murphy and Special Agents Robert Mellado, Kimberly Thomas, Joseph LeStrange, and Judson Spring.
After the investigative team was assembled in late 1995, the OIG began obtaining pertinent documents from the FBI and continued reviewing communications received from Whitehurst. Ultimately, the FBI provided more than 60,000 pages of documents in response to requests from the OIG, including case files, work notes, test results, policies, internal memoranda, and other materials. The OIG' s investigative team also interviewed individuals who were identified as possibly having relevant information.
Interviews were conducted by the attorneys and OIG special agents working on the investigation. In some instances, one or more of the scientific experts attended the interviews and asked questions themselves. Certain witnesses, including Agent Whitehurst, were interviewed under oath, and their interviews were transcribed. Other interviews were summarized in memoranda prepared by OIG special agents. More than 100 witnesses were interviewed as part of the investigation, and several were interviewed more than once. The experts and attorneys met in Washington, D.C., beginning in late 1995 and continuing through early 1997 to discuss the course of the investigation, additional information to be obtained, and our conclusions.
After a draft of the Report was completed on January 21, 1997, the OIG invited the FBI to review the draft for factual accuracy. The FBI provided seventy-two pages of written comments on February 12, 1997 and twelve additional pages of comments on March 24, 1997. The OIG also solicited comments on parts of the draft from certain United States Attorneys' Offices or others who had been involved in the prosecution of particular cases. Agent Whitehurst began reviewing a draft of the Report, but declined to provide comments after the OIG refused to allow his private attorney to also review the draft. Based on the responses received from the FBI and others, the experts and attorneys again met and considered whether revisions were appropriate.
This report is the result of the foregoing investigative efforts.