I. COMMENTS ON THE OIG'S ANALYSIS OF PARTICULAR MATTERS
A. World Trade Center
The OIGs investigation of Whitehursts allegations against FBI Laboratory chemists Lynn Lasswell and Roger Martz in the World Trade Center case revealed no misconduct on the part of either chemist. The draft report also finds that Whitehurst "grossly overstated" his allegations against Donald Haldimann and that a Christmas Party conversation which Whitehurst considered "suppression of evidence" ultimately "signified nothing." [Part Three, Section C at 63.]
The remaining issues with regard to the World Trade Center case focus upon explosives examiner, David Williams, the principal examiner (PE) in the investigation. We found that the draft reports discussion of the World Trade Center case contained several findings with which we disagree, in whole or in part. These matters and the bases for our objections are set forth below.
OIG Finding: Williams gave inaccurate testimony regarding whether the urea nitrate was made pursuant to Arabic formulas from bomb-making books linked to defendants.
Response: Williams testified in the first-person that he personally performed certain tasks, including following the formulas from the defendants blue books to produce urea nitrate. According to Williams and others present during the Eglin Air Force Base project, Williams relied on the chemists representation to him that the formula being used was "the same" as that in the Arabic formula. Although the chemists apparently indicated to the OIG that they do not recall this conversation, two of the bomb technicians we contacted did. [The bomb technicians, Ron Wirth and Dennis Durden of the Jacksonville FBI office, stated that it was " common knowledge " that the purpose of the Eglin experiment was to " duplicate " the formula associated with the World Trade Center defendants. They also agreed that Whitehurst was so aware. ] Both of the bomb technicians agreed that Williams specifically asked how the formulas compared because he would be the one called to testify in that regard. The better approach at trial, however, would have been for Williams to explain that he is not a chemist and that he was told by a chemist that the formulas were the same.
OIG Finding: Williams gave inaccurate testimony regarding his role in the manufacture of urea nitrate.
Response: Again, Williams testified in the first-person that he performed certain tasks during the Eglin experiment which were actually performed by others. We disagree with the OIG, however, as to the significance of this inaccuracy. While Williams may havetestified in the first-person, he also made it clear that several people were involved in the manufacturing process. He even named them in his trial testimony. We do not believe that, when viewed in its entirety, Williams testimony misled the jury into believing that he alone manufactured urea nitrate. [The lead prosecutor in the case, AUSA Gil Childers, advised that neither he nor the jury were under the impression that Williams individually and personally manufactured urea nitrate. He also advised that Williams first-person testimony as to acts performed by others was inconsequential.]
The OIG also concludes that Williams was wrong to consider himself a supervisor of the project because he did not determine the types and amounts of chemicals to be added during the actual mixing process. We disagree with the OIGs assessment in this regard, as do the on-site bomb technicians we contacted. The Jacksonville FBI Agents involved in the project considered Williams to be the supervisor even though he did not direct the chemists on the specifics of the mixture. [Agents Wirth and Durden stated that Williams was " in charge " ; was " running the show " ; " gave us our marching orders " ; and " was there the whole time supervising. "] In addition, Williams was the official PE in the World Trade Center case and, as such, was ultimately responsible for all of the Laboratorys work in connection with the case.
It is undisputed that Williams was responsible for assembling the team that manufactured the urea nitrate at Eglin Air Force Base. He personally requested that the Jacksonville Division of the FBI assign two bomb technicians to the project. He also coordinated their schedules and those of Eglin personnel on a daily basis. As Steve Burmeister, another examiner, told the OIG, Williams was responsible for supervising the logistics of the project. We, therefore, find it reasonable for Williams to have considered himself the supervisor and to refer to the individuals involved in the project as "my workers." The OIG, however, finds that Williams testimony in this regard "manifests an intent to downplay the role of the others and to aggrandize his own." [Part Three, Section C at 12.] We disagree with this characterization and with the OIGs speculation as to Williams intent.
The significance of Williams role, according to the draft report, is that it reflects on his expertise in the manufacture of urea nitrate. We disagree. Williams testimony that he supervised the events at Eglin did not make him "appear to be an expert" in the manufacture of urea nitrate. [Id.] We believe, and AUSA Childers has confirmed, that the jury was not misled as to Williams role or expertise in the manufacture of urea nitrate.
OIG Finding: Williams testified beyond his expertise regarding the defendants capability to make urea nitrate and in a way that makes the testimony appear tailored to the most incriminating result.
Response: While we understand the tendency of an expert witness to try to respond to questions posed to him, we also understand the need to resist such testimony. [See Section III.A.9 below regarding changes the FBI Laboratory has adopted to ensure that Laboratory personnel limit their testimony to their areas of expertise.] The better approach in the World Trade Center case would have been for Williams to defer these questions to Steve Burmeister, the prosecutions expert witness on chemistry issues. While the draft report questions Williams' scientific calculations in determining the defendants' capability to produce between 1,200 and 1,800 pounds of urea nitrate, it concedes that any error in his calculations was inconsequential to the case against the defendants. As the draft report notes, had Williams accurately calculated the defendants capability to make urea nitrate, "the result would have been perfectly acceptable to the prosecutions theory of the case." [Part Three, Section C at 22.] Furthermore, we object to the OIG's commentary that Williams' calculations "conveniently produced the exact amount of urea nitrate -- 1,200 pounds -- that he later testified was used in the Trade Center bombing." [Id. at 18.] Williams testified to a range of 1,200 to 1,800 pounds and to "about 1,200 pounds."
We also maintain that the draft reports commentary that Williams testimony appeared tailored to the most incriminating result is speculative and should be omitted.
OIG Finding: Williams gave incomplete testimony concerning the VOD of urea nitrate.
Response: Williams testified at trial that the velocity of detonation (VOD) of urea nitrate is 14,000 feet per second (fps) in smaller quantities and approaches 15,500 fps in larger quantities. The recognized VOD of urea nitrate, however, is 11,155 to 15,420 fps. [Encyclopedia of Explosives and Related Items (U.S. Armament Research and Development Command 1983, p. U103). ]
We disagree with the draft reports commentary that "[a]t best, the testimony was incomplete. At worst, it was intentionally false." [Part Three, Section C at 26.] According to Williams, he arrived at the 14,000 to 15,500 figure after consulting several experts in the field. While the experts told the OIG that they "did not recall" discussing the VOD of urea nitrate with Williams,none of them stated categorically that it did not happen. We therefore object to the OIGs assertion that Williams testimony may have been "intentionally false" when there is no evidence to support such a claim. In the same vein, we find it inappropriate for the OIG to express "grave doubts" about Williams veracity. [Id.]
OIG Finding: Williams gave an invalid opinion regarding the VOD of the main charge.
Response: Williams testified that the blast damage he observed at the scene led him to conclude that the VOD of the main charge was approximately 14,000 fps. [As noted in the draft report, Williams testified at the Salameh trial that the VOD was 14,000 to 15,500 fps " with a little bit of give on each side " ; at the Sheik Omar trial, that it was 14,000 fps " with a bracket on both sides of a couple thousand feet " ; and in a letter to the OIG, that it was " faster than 11,000 and slower than 16,000 fps. " Part Three, Section C at 29-30.] We agree with the OIG that a broader range should have been given. We disagree, however, with the OIG's criticism of Williams' methodology.
Williams cited numerous factors which he considered during his assessment of the crime scene, including damage to vehicles, concrete, steel-reinforcing rods, steel beams, other fragments of metal, as well as the size of the crater, and pushing and heaving effects. We believe such a visual examination is not only proper, but necessary. The OIG, however, criticizes Williams for filtering these observations through his 10 to 15 years experience as an explosives examiner to produce his VOD estimate. It calls such an assessment "an unscientific, unverifiable process of intuition," lacking any empirical data. [Id. at 36.] We find such criticism of Williams methodology inappropriate, especially in light of the following passage in the draft report:
We have no doubt that an experienced explosive examiner may properly draw certain inferences from observations at a crime scene. For example, an experienced expert will be able to discern the difference between the damage left by a high versus a low explosive, and can differentiate the damage caused by a heaving high explosive (like most commercial products) versus a brisant (like most military explosives) high explosive. Similarly, an observation of "pitting and cratering" will tell an experienced expert that the explosive used was a high explosive with a VOD typically in excess of 10,000 feet per second. Allof this involves the use of experience to recognize certain distinctive characteristics of explosive damage. [Id. at 38-39.]
We believe that the criticism of Williams methodology, i.e., assessing a crime scene and filtering it through his experience to estimate VOD, is unfounded. It is the precision with which Williams estimated the VOD that was improper, not the methodology he applied.
OIG Finding: Williams gave invalid and misleading opinions identifying the main charge that appear tailored to the most incriminating result.
Response: Although the draft report finds that Williams testimony about the limited type of explosives that fit in the 14,000 to 15,500 fps range was "literally correct," it expresses "concern" that the court "may not have understood" that each type contains numerous commercial products. [Id. at 43.] We believe the OIG is overreaching in this criticism. There is nothing in the record to suggest that the court was unclear on this matter. Furthermore, if such were the case, Williams was available to answer clarifying questions.
As for Williams identification of the main charge as urea nitrate, we note, as did the OIG, that he testified accurately on direct examination that the category of explosives that fit his VOD estimate and the damage he observed included, but was not limited to, urea nitrate. The OIG then criticizes Williams for his responses during cross examination in which defense counsel elicited Williams opinion that the main charge was, in fact, urea nitrate. The questions posed by defense counsel were admittedly unclear and opened the door to Williams opinion that urea nitrate was the main charge.
We believe that the draft report unfairly criticizes Williams for considering the results of the auxiliary searches in formulating his response to defense questioning. Defense counsel did not limit his questions to Williams observations at the scene (as the prosecutor did) and, as a result, provided Williams with an opening to consider the results of the searches. We believe it is fundamentally unfair for the OIG to opine that defense counsel "clearly meant" to limit the question to Williams analysis of the crime scene and that Williams, therefore, acted "unprofessionally" in not explaining that he was also considering the search results. [Id. at 47-49.] A trial is an adversarial proceeding and it is the responsibility of counsel to formulate precise questions. The fact that defense counsel failed to do so in this instance should not reflect on Williams professionalism. Williams gave a truthful answer to the question posed.
Finally, we object to the draft reports conclusion that Williams testimony regarding the identification of the main charge appeared "tailored to the most incriminating result." [Id. at 63.] Had this been the case, Williams testimony on direct examination by the prosecutor would have categorically identified urea nitrate as the main charge, rather than merely one of several possibilities. The fact that Williams did not identify the main charge as urea nitrate until he was asked an open-ended question on cross examination militates against a conclusion that Williams tailored his testimony to favor the prosecution.
OIG Finding: Williams gave misleading testimony concerning his attempt to modify Whitehursts dictation.
Response: We agree that Williams was incorrect in testifying that he was not dissatisfied with certain conclusions in Whitehursts report. It is clear, however, that he mistakenly believed defense counsel was questioning him about a format change, not a substantive change, he had made to one of Whitehursts reports. [The OIG, which found these format changes to be " innocuous, " acknowledges that this was the matter to which Williams referred in his testimony. Id. at 61.] The OIG concedes that defense counsels questions "lack precision," but, again, holds Williams accountable for making the appropriate interpretation.
B. Oklahoma City
The OIG findings regarding the Oklahoma City investigation focus primarily on the conclusions formed by the PE, David Williams, an explosives examiner in the Explosives Unit of the FBI Laboratory. While the OIG concludes that Williams' report on the bombing was flawed, we believe it is important to note that these flaws reflect inadequate analysis and ineffective management; they do not evidence individual misconduct. The errors identified in the draft report involve Williams' incomplete, categorical, and otherwise too specific conclusions. Many of the changes which are already being implemented in the Laboratory will ensure that such errors do not recur and that conclusions are scientifically supportable and are not overstated.
Finally, we note several statements within the OIG's discussion of the Oklahoma City case with which we disagree. These matters and the bases for our objections are set forth below.
OIG Finding: Williams categorical identification of the main charge as approximately 4,000 pounds of ANFO was inappropriate.
Response: We agree that Williams should not have stated categorically that the main charge consisted of approximately 4,000 pounds of ANFO. We disagree, however, with the draft reports suggestion that Williams tailored his opinion to implicate the defendants by using prior knowledge of the explosive components purchased by the defendant.
The draft report's use of the word "tailored" [Part Three, Section G at 4.] unjustifiably suggests that Williams had the specific intent to mislead when he rendered a categorical opinion in his report that the main charge was approximately 4,000 pounds of ANFO without revealing that the opinion was based in part on his knowledge of Nichols' purchases. There is nothing in the record to suggest that this was anything other than a lack of care and precision on the part of Williams in preparing his final report.
The lack of an intent by Williams to mislead is supported by the fact that in reaching the categorical conclusions in his report that the main charge was approximately 4,000 pounds of ANFO, Williams was verifying the preliminary opinion he had reached before knowing of the results of the search of the suspects' residences.
Williams arrived in Oklahoma City on the day of the explosion, April 19, 1995. After observing the scene of the blast and the surrounding areas, Williams formed the preliminary opinion that the blast was caused by approximately 4,000 pounds of ANFO. This opinion was based on the extent of damage he observed and his assessment of the approximate VOD of the explosive. More importantly, we have confirmed that no later than the morning after the blast, Williams advised high-ranking FBI officials at the scene, including Special-Agents-in-Charge (SACs) Weldon Kennedy, Neil Gallagher, and James Adams, that he believed the explosion was caused by approximately 4,000 pounds of ANFO. Each of these SACs is certain that Williams expressed this opinion before any suspect had been apprehended in connection with the bombing and before any search of the suspects residences had been conducted.
OIG Finding: Williams errors were all tilted in favor of the prosecutions theory of the case.
Response: We disagree. In addition to stating this finding in its conclusion, the draft report makes no fewer than six references in its discussion of the Oklahoma City investigation to Williams conclusions being biased in favor of the prosecution. [Id. at 1 (Williams conclusions are " biased in favor of the prosecution " ); at 2 (his statements " supported the prosecution s theory of the case " ); at 4 (he " appears to tailor the opinion to evidence associated with the defendants " ); at 5 (his opinion " appears tailored to present the case in a way most incriminating to the defendants " ); at 7 (his opinion " may have been tailored to conform to the evidence associated with the defendants " ); and at 7 (his conclusions " appear tailored to conform to evidence associated with the defendants " ).]
We object to each of these references and believe that they unfairly characterize Williams conclusions. As discussed above, several of Williams conclusions which the OIG portrays as being "tailored" to favor the prosecution were reached prior to the development of any prosecution theory in the case. Therefore, each of these references is speculative and unwarranted given the fact-finding mission of the OIG and should be deleted from the draft report.
C. Florida v. George Trepal
The draft report accuses Roger Martz of overstating the significance of his identification of thallium nitrate after examining adulterated Coca-Cola. We believe that Martzs expert opinion that thallium nitrate had been added to the Coca-Cola is supported by the forensic examinations performed in this case [We agree that since ion chromatography (IC) was not performed on Q3, Martz s opinion should have been confined to Q1 and Q2.] as well as Martzs own experience with poisoning cases. [Although the draft report notes correctly that Martz acknowledged that another examiner had originally identified thallium in the Coca-Cola, the draft report is incorrect when it implies that Martz did not identify thallium himself. The SEM/EDXA results, directed and evaluated by Martz, confirm the presence of thallium in Q1.] We further believe that once Martz was qualified as an expert by the court, he was permitted to give his expert opinion when asked.
As an initial matter, we take issue with the draft report's characterization of Martzs "overstatement" in this case as being similar to "what he did in the World Trade Center case, where he concluded that mass spectrometry had identified urea nitrate on certain evidence." [Part Three, Section H13 at 1.] Although Martz was the Unit Chief who signed the World Trade Center report, Lynn Lasswell originally authored it. The OIG makes it appear, erroneously, that Martz was the examiner who drew this conclusion about urea nitrate. While Martz was certainly responsible as the Unit Chief for approving the report, the OIG draft report unfairly places virtually all of the blame for the error on Martz.
Based upon our review, discussed in detail below, we believe that the draft report is wrong both in concluding that Martz overstated the significance of his analytical results and also in positing an erroneous scenario (not borne out by the tests) that a mixture of thallium chloride/sodium nitrate had been added to the Coca-Cola. If sodium nitrate had been added as one of the adulterants, the SEM/EDXA elemental profile in Q1 would have indicated an elevated level of sodium, which it did not.
While we concede certain deficiencies here, such as inadequate notes and charts, we disagree with the assertion that "Martz appeared to have a lower threshold of scientific proof than is generally accepted in forensic science and to lack appropriate scientific rigor in his approach to examinations." [Id. at 5.] This sweeping condemnation is especially harsh given the variety of analytical techniques employed by Martz in this case and the correctness of his ultimate conclusion. [The language at the beginning of the OIG's discussion of Trepal which suggests that Martz should have been more tentative in forming his hypothesis and more open to alternative explanations of his analytical results seems seriously misplaced in light of our conclusions. This is especially so in light of Martz s concession on cross-examination that he could not, as a matter of absolute certainty, exclude the possibility that the nitrate could have come from some other substance. Of course, if the nitrate anion arose from some other source, this scenario does not account for the lack of ion chromatography to identify the counterion associated with the thallium cation addition.] We have set forth below the analysis by which Martz determined that thallium nitrate had been added to the Coca-Cola at issue:
Martz initially screened Q1-Q3 and K61 with silver nitrate (AgNO3) and barium chloride (BaCl2). [Although these reagents were mistakenly recorded in Martz s notes as " AgCl " and " BaNO3. "] Silver nitrate reacts with free halides (e.g., chloride ion) and barium chloride reacts with the sulfate ion. In both cases, the questioned specimens and the known specimen exhibited the same qualitative results [We agree that the observations supporting the " same for all " comment in Martz's notes should have been recorded.] -- these spot tests indicated no differences in any chloride ion or sulfate ion concentrations between the questioned and the known specimens.
Martz next tested the four specimens with the diphenylamine/sulfuric acid reagent, which is a presumptive test for nitrates. [A few other oxidizers (alkali halogenates, chlorates, periodates, permanganates, persulfates, peroxides and ferricyanides) will also give a positive reaction, as well some organic nitro compounds.] In this instance, the spot test did differentiate the questioned specimens from the known -- Q1-Q3 gave a positive response, while K61 was negative. The preliminary conclusion at this early stage was that the anion added to the questioned specimens is not chloride or sulfate.
Martz then submitted a dried sample of Q1 for examination by x-ray diffraction (XRD). The match given for this specimen in the instruments 32060-pattern library is for thallium chloride, although the confidence level for this match, 4.9 out of 15.0, is low. However, thallium nitrate is the least thermally stable of the three thallium salts under discussion (the chloride, sulfate, and nitrate), i.e., it is the first to decompose with increasing temperature. This may also have had some impact on the XRD analysis -- if the thalliumnitrate had been the thallium -- containing salt added to the questioned specimens, it may have decomposed to some extent as Q1 was taken to dryness on the hot plate, leaving the thallium cation to scavenge for available anions, for example, chloride.
Next, Martz took samples from Q1 and K61 to dryness and submitted them for examination by scanning electron microscopy with energy dispersive X-ray analysis (SEM/EDXA). In addition to these two specimens, standards of thallium chloride and thallium sulfate were run. Thallium nitrate was not run because the SEM in operation at that time was sensitive only to elements with atomic number 11 (sodium) and higher, and thus would not have detected nitrogen (N) or oxygen (O) of nitrate (NO3). In specimen Q1, phosphorous, thallium, chlorine, and calcium were detected. When this specimen was further heated, sodium and potassium were also detected. The thallium chloride and sulfate standards gave the expected thallium and chlorine as well as thallium and sulfur peaks. The K61 specimen gave indications of phosphorous, sulfur, chlorine, and calcium. The striking difference between the questioned and known Coca-Cola specimens was that the former contained thallium. At that point, it was of note that the Q1 and thallium chloride standard thallium/chlorine ratios were different (with Q1 being higher), which is consistent with the chlorine evident in Q1 not being the result of the addition of thallium chloride.
Specimens K61, K66, Q1 and Q2 were analyzed via liquid chromatography (LC) with an ultraviolet detection system set to optimize the caffeine sensitivity (273nm). The LCs inability to differentiate the caffeine concentrations between the Q and K specimens suggested that no appreciable dilution of the questioned samples had taken place. This is consistent with a powder, rather than a bulk liquid adulterant, being added to Q1 and Q2.
Mass spectrometry was twice applied in this case. In the first instance, gas chromatography/mass spectrometry (GC/MS) in the electron impact (EI) mode located caffeine (194 m/z) in Q1 as well as K61. The two chromatograms are qualitatively the same. [Apparently, the initial temperature/temperature ramping over the course of the two injections was not the same since the retention times for caffeine are 337 and 289 seconds, respectively. However, the relative retention times for the numerous GC peaks in Q1 appear to correspond to those on K61, and there is evidence that Martz confirmed some of these. Since caffeine has a retention time corresponding to about one third of a normal toxicology screening analysis GC run, Martz s analysis did not rule out the possible presence of an organic foreign substance with a retention time greater than the caffeine. ] In the second application of mass spectrometry, negative ion chemical ionization (methane) (NICI) direct exposure probe (DEP) mass spectrometry was employed. This turned out to be of no real utility since an analysis of a thallium sulfate standard resulted in Martz's identification of a number of other thallium salts. Thus, this technique would be useless for differentiating the thallium salts under discussion here. A thallium nitrate standard was run and found not to be stable under these conditions because of its thermal decomposition sensitivity.
Finally, the most useful and revealing technique employed in this examination was ion chromatography (IC). Specimens Q1, Q2, K61, K66, a nitrate standard, as well as a water blank were run. The striking difference between the questioned specimens and the known specimen is that elevated levels of nitrate were indicated in Q1 and Q2. No elevated level of the chloride anion, whose position Martz provisionally established with the water blank, was noted in the questioned specimens versus the known soft drinks. This supports Martzs opinion that nitrate, rather than chloride, was the anion associated with the thallium added to the Coca-Cola. [While this argument is not as conclusive as it might be because of the " congestion " in the region of the chromatogram in which chloride elutes, it can fairly be asserted that although there is congestion in the early eluters in the ion chromatograms, had the chloride been present in the concentrations approaching that of the nitrate anion observed, that peak would have risen out of the manifold of early eluters, making its presence known, and demanding an explanation. This argument also rebuts the draft report s suggestion of a simultaneous thallium chloride/sodium nitrate addition to the Coca-Cola.]
Moreover, while thallium sulfate -- the compound initially mistakenly identified by the local Medical Examiners Office as being present [This initial misidentification by the local Medical Examiner s Office was caught by Martz in his initial screening with the silver nitrate, barium chloride, and diphenylamine/sulfuric acid spot tests.] -- is 15 times as soluble in water as thallium chloride, thallium nitrate is 25 times as soluble. Thus, thallium nitrate is the most efficient of these three to employ as a poison. Also, at refrigerator temperatures, had the thallium containing salt added to Q2 in particular been thallium chloride, it would have been borderline insoluble (on the edge of precipitating out), while thallium nitrate has no solubility problems under these temperature and concentration conditions. Finally, the experience of forensic chemists who are familiar with poisoning cases suggests that it is more likely that one, as opposed to two, adulterants will be added to a substance in order to poison someone.
The OIG's conclusions concerning the Avianca case (United States of America v. Dandeny Munoz-Mosquera) pertain in large part to the testimony of Richard Hahn, who testified as an FBI explosives expert based upon his post-blast examination findings. The draft report contains 40 pages devoted to the Avianca case, including a detailed critique of Hahns trial testimony. While the OIG concluded that Hahn committed "error" by offering some opinions that under microscopic examination after the fact [For example, the OIG's conclusion that Hahn "slightly overstated his experience" when citing, as prior experience, crime scene processing and assessments made during the Pan Am 103 and World Trade Center cases, Part Three, Section E at 25, mischaracterizes Hahn's claim of "assessing" evidence as "analyzing" evidence -- two very different processes. The OIG's conclusion that Hahn's testimony in describing the location of different parts of the aircraft "appears to require expertise that Hahn lacked. . ." ( id. at 26) ignores the fact that Hahn testified from official Boeing diagrams and with the knowledge base of other investigative team members.] lacked an adequatescientific basis or were beyond his expertise, we are convinced that Hahn acted in good faith and based his testimony on a number of factors that he could properly rely on as an expert witness. Hahns testimony, which was subject to cross examination, was not material to the ultimate finding of guilt, since there were numerous other witnesses who testified before Hahn and who supported the prosecutions theory of the case. Furthermore, as stated below, the draft report fails to note several factors relied upon by Hahn in forming his conclusions which belie the suggestion that his "errors" were intended to help the prosecutions case. We suggest that the OIG reexamine its findings regarding Hahn's testimony in Avianca. At a minimum, we request that the OIG delete any suggestion that Hahn formed his conclusions to support the prosecution's theory of the case.
OIG Finding: Hahn gave scientific opinions correlating the pitting and cratering to a high velocity explosive that were unsound and not justified by his experience or by the scientific literature.
Response: Hahn's testimony regarding the pitting and cratering has been taken out of context by the OIG. This word-for-word reading of one aspect of Hahn's testimony does not take into account its overall purpose and intent -- to describe the extent of the observable physical damage to the plane, verify the use of an explosive as the cause of the damage, and posit a theory and expert opinion, based on his experience and empirical knowledge, as to the type of explosive and the approximate VOD that could have caused the observable damage, including the pitting and the cratering.
The draft report states that, "taken literally," Hahn's testimony in the second trial indicated that he believed pitting and cratering "can only occur with a "very high explosive'--that is, an explosive with a VOD of about 20,000 feet per second or more." [Id. at 9.] However, Hahn's testimony was geared to photographs presented as exhibits at trial and, therefore, his statement was focused on the pitting and cratering found on the particular piece of evidence depicted in the photograph presented by the prosecutor.
If Hahn's testimony is followed in sequence, it tracks a series of photographic exhibits, which depict the particular damage to Avianca Flight 203 indicating that an explosive device had been used on the aircraft. For example, Hahn discussed the missing double I-beam -- "shattered, broken away"; [Transcript at 2910.] the wing box cracked in half; [Id. at 2912.] the "very specific explosives damage" on pieces of the aircraft shown in exhibits 623 to 626, namely the shattering effect of a brisant explosive; [Id. at 2919.] and the generation of jets of gases causing pitting and cratering. [Id. at 2919. Hahn testified "that pitting and cratering is unique to explosives -- high explosives functioning. There's nothing else in the world that could cause it, and when you see it, when you have been trained to look for it and recognize it, there's nothing else that could have caused that." Id.]
Then Hahn pointed out the pitting and cratering on Exhibit 626 and stated in part: "High explosives did that damage. I'm talking about a very high explosive here functioning in the area of 20,000 feet per second. . . ." [Id. at 2920 (emphasis added).] He did not say that such pitting and cratering can only occur with an explosive with a VOD of 20,000 feet per second or more, only that the particular pitting and cratering depicted in that exhibit was sufficiently unique to have been caused by an explosive of that velocity. [In the first trial, using a series of photographic exhibits, Hahn reviewed the extent of the damage, commenting as follows: "[t]he fuselage metal has been blasted out. It suffered severe blast damage here, and it's therefore been misshapen." Id. at 2257. He also noted "this particular piece of aircraft is so significant because this has what we call pitting and cratering on it." Id. at 2260. Finally, Hahn explained "that damage right there is damage done by a functioning extremely hot explosive. That is the only thing in the world that can do that kind of damage. No drill, no impact, nothing like that will do that particular type of damage. That is caused by extremely hot gasses at extremely high pressure that actually come at the metal and erode the metal away." Id. at 2261. ]
We recognize that drawing specific conclusions about VOD based on observable blast damage is problematic due to a lack of supporting scientific data. In this case, however, the draft reports criticism that Hahns opinion, as seen with the benefit of hindsight, was offered in an attempt to help the prosecutions case is not justified. Hahn offered a broad range for the VOD and a number of other factors supported the VOD conclusions. For example, the draft report does not mention a report issued by the Colombian criminalistics laboratory (signed by a chemical engineer and an explosives technician) which Hahn reviewed prior to testifying, and which also concludes that the explosive had a VOD of from 20,000 to 23,000 feet per second. The Colombian report states in pertinent part:
The marks of impact which appear on one of the metal sheets that was collected and analyzed, show the effects of violent collision with other metal flung with great force. This is a physical action characteristic of high explosives traveling at a velocity of 20,000 to 23,000 feet per second, that is 7,000-8,000 meters per second. Other metal parts, which were examined, did not exhibit this type of impact. Only the tearing caused by the strong impact, normally caused by a fall of elements from air to land, was noticed. [See Policia Nacional Direccion de Policia Judicial e Inteligencia, Atentado Terrorista Avion de Avianca HK-1803, Discriminalistica Seccion Laboratorio , Conclusion at 7. ]
This report corroborates Hahn's conclusions and illustrates that he was not alone in his view as to the approximate range of the VOD.
The draft report further states that "Hahn's experience was inadequate to support his opinion" that the large pits were "necessarily caused" by a high explosive with a VOD of at least 20,000 feet per second. [Part Three, Section E at 11.] While we agree that Hahn's opinion may have lacked adequate supporting scientific data, Hahn did in fact have sufficient experience to offer that opinion at that time. He had set off charges in range tests at lower velocities under various conditions and had never seen similar pitting and cratering. He had, however, achieved such pitting with "shaped charges." He also saw similar pitting and cratering in the Pan Am 103 investigation. Given the nature of forensic explosive examinations and the varied circumstances which the examiner must confront, every incident will involve unique circumstances, which must be interpreted in light of the explosives examiner's knowledge and experience at the time. The fact that Hahn may not have realized at the time he testified in Avianca that some degree of pitting could be caused by an explosive with a lower VOD does not suggest that his testimony was intended to buttress the prosecutions case.
OIG Finding: Hahn erroneously failed to make inquiries about the validity of his jetting theory before the second trial.
Response: While Hahn could have made additional efforts to validate his jetting theory before the second trial, that aspect of his testimony was neither material to a finding of guilt nor susceptible, at that time, to ready validation. Even the Whitehurst memorandum on this issue expresses doubt about the adequacy of the literature on pitting and cratering: "The literature leaves us unsure about the detonation velocity/power of high explosives required to cause pitting. . . ." [Whitehurst memorandum at 2.] We think this section of the draft report is unfairly critical and we request that the OIG reconsider this finding.
OIG Finding: Hahn testified incorrectly and outside his expertise concerning a fuel-air explosion, the injuries to passengers, and other areas.
Response: The draft report criticizes Hahn for testifying outside his area of expertise both with regard to a fuel-air explosion and injuries to passengers. For the reasons that follow, we believe both criticisms are unfounded and should be modified.
Conclusions as to fuel-air explosion: The draft report concludes that Hahn testified outside his expertise and experience in the second trial [Part Three, Section E at 23.] by citing his use of the terms "fuel-air explosion" and "flash fire" interchangeably. Hahn stated at trial: "That sort of damage was seen in this particular incident, also again consistent with a flash fire or a fuel air explosion." [Transcript at 2930-31.] At another point, in describing the "potential" for a fuel/air explosion on board an aircraft, he stated: "Simply put, a fuel air explosion inside a diesel engine every time it fires you have a mixture of fuel and air. You compress it, [it] gets hot, it flashes over a fuel air explosion." [Id. at 2926 (emphasis added).]
While Hahn may have confused the two terms during his testimony, this does not support the OIG's suggestion that he attempted to mislead the jury. [Hahn readily acknowledged to us that he mistakenly used the two words interchangeably and that they do not mean the same thing. The report of Mr. Walter Korsgaard, FAA Program Manager, one of the individuals with whom Hahn investigated the scene, discussed the damage typical of "flashover" and "fuel-air explosion." Korsgaard's report states: "Evidence indicated severe burning in the area below the cabin floor and damage typical of flashover in the passenger cabin area." "Technical Investigative Findings of HK1803, Mr. Walter Korsgaard, FAA Program Manager and National Resource Specialist for Aviation Explosives Security," Notes for November 29. The next page of the report discusses problems with the number 3 fuel tank boost pump: "I believed that this pump could be a possible fuel/air explosion initiation source. . . ." Id. , Notes for December 1.] Both prosecutors in Avianca have informed us that Hahn's role at trial was, at least in part, to summarize the conclusions of other witnesses. That summary witness role was apparently what led to some of Hahn's difficulty and we believe the OIG is unnecessarily critical of Hahn in this regard.
The Avianca investigation was conducted by a team of investigators, including National Transportation Safety Board (NTSB) investigators, industry specialists, and agents of the Federal Aviation Administration (FAA) who have explosives background and training. The investigative team reached joint conclusions, supported by the observable physical evidence. Throughout most of his testimony, Hahn noted the joint effort by frequently usingthe term "we" to preface his discussion. [For example, "We did not find any other evidence . . . as far as the high-powered device, . . . we still . . . ." Transcript at 2925; "At this point we were satisfied that a device had functioned . . . ." Id. at 2926. Hahn did use some "I" statements in discussions regarding fuel-air explosions. In the middle of that discussion, he states: "Now, again, that's the type of blast damage I would expect to find from a fuel air explosion." Id. at 2928. Then he was asked to "summarize for the jury what you believe happened on November 27, 1989 to Avianca Flight 203." Id. at 2928. Although he began his answer: "what I believe happened . . . ," later in the discussion Hahn reverted to the pronoun "we." Id. at 2929. Thus, Hahn's isolated uses of the term "I" appear to have been minor misstatements.] As a result, we believe the OIG's conclusion that "[w]e are troubled by Hahn's willingness to testify . . . to areas about which he has no expertise and do so without making known . . . findings of other experts" [Part Three, Section E at 23.] is groundless in this context, where the prosecutors themselves confirmed his use as a summary witness. The same is true of the OIG's conclusion that Hahn's testimony is "problematic" because Hahn is not an expert in "fuel-air explosions." [Id. at 22.] As is apparent from Hahn's entire testimony, he made a good faith attempt to summarize other witness' findings fairly, even if he unintentionally misspoke on some occasions.
Conclusions as to injuries to passengers: The OIG concludes that Hahn's testimony regarding injuries to passengers, which in the first trial he described as "consistent with extreme heat, flash-fire type of damage" [Transcript at 2269.] and in the second trial as "consistent with a flash fire or fuel-air explosion," [Id. at 2930-31.] were beyond his expertise and incorrect. [Part Three, Section E at 23.] The OIG further concludes that Hahn's "testimony about the injuries was misleading, inaccurate, and outside his area of expertise" and that "he improperly used this testimony to support his theory of a fuel-air explosion." [Id. at 24.]
Hahn has informed us that he was used as a summary witness in this regard as well and that he simply discussed the findings of the medical examiner about which he was aware. In the first trial, Hahn's testimony regarding passenger injuries was prompted by the following question from the prosecutor: "Was there other damage to the passengers or other parts of the plane that were consistent with the physical findings and conclusions that youhave just stated?" [Transcript at 2268.] Hahn's answer began: "We were informed by the medical pathologist . . ." and ended with the comment quoted above, that the injuries were "consistent with extreme heat . . . ." [Id. at 2269.] His testimony in the second trial tracked a similar course, beginning with: "In talking to the medical examiners, they found damage to the bodies . . ." [Id. at 2930.] and concluding as quoted above, "again consistent with a flash fire or fuel air explosion." [Id. at 2930-31.]
The report of the medical examiner (a pathologist) theorized that both the loss of brain matter from the opened skulls and the lesions and burns to the bodies were produced during (and caused by) the explosions inside the aircraft. [That report (as translated from Spanish) states in a relevant portion of its "Summary": "Generalized explosion of head, apparently produced during the explosion (supposition made because no remains of the encephalic mass [brain tissue] was found where the head was recovered." "1.13 Informacion Medica y Patologica ," Informe de Accidente de Aviancio ," Departamento Administrativo de Aeronautica Civil Division de Seguridad Aerea , Resumen at 29, ô 1.(d). Additionally, the "Summary" includes the information that "the lesions and the burns observed on the bodies were caused by an explosion inside the airplane while it was still in flight and subsequently was aggravated by the detonation of some type of gas (oxygen, combustible vapors, or some other element)." Id. at 29, Resumen at ô 2.] Hahn informed us that he was aware of and had reviewed that report, which was included in the lengthy report of the "Air Security Division of the Department of Civil Aeronautics." [Report of the Departamento Administrativo de Aeronautica Civil Division de Seguridad Aerea .] In addition, the medical examiner testified at the trials. If the report of the medical examiner (and it is assumed his testimony at the trials was the same as the report) is to be accepted as true, then the following statements in the draft report are not accurate: "Essentially, the injuries to the bodies told Hahn nothing about whether a fuel-air explosion occurred; they only told him that an intense fire burned for a period of time. This is quite different from his testimony that the injuries to the bodies were consistent with a flash fire or fuel-air explosion." [Part Three, Section E at 24.] Hahn was only called upon to testify to the compatibility of the injuries with his theory of the cause of the damage to the aircraft. The purpose of Hahn's testimony was not to describe the extent of the damage to the bodies, but merely to give an opinion as to whether the injuries were consistent with the events believed to have occurred on board the aircraft. The jury was able to evaluate his testimony in light of that given by the medical examiner.
OIG Finding: Hahn gave incomplete testimony regarding Whitehurst's scientific results.
Response: The draft report faults Hahn for giving incomplete testimony regarding a memorandum prepared by Whitehurst. The draft also concedes, however, that "the impact of Hahn's failure to mention the opinions in the document was insignificant." [Id. at 15.] If, as the draft report notes, the Whitehurst memorandum was a "deeply flawed" document and that "Hahn's failure to mention the opinions in the document was insignificant," [Id.] then we believe that criticism of Hahn for "incomplete testimony" in failing to mention those opinions is unsupported. Hahn's testimony at trial was responsive to the questions asked.
The Whitehurst memorandum was not a Laboratory report, and should not be considered one. [As an indication of the way the Whitehurst memorandum was regarded by management, we note that Corby stated in his memo to James Kearney that "Whitehurst's memo to me is not a report . . . ." Memorandum dated 7/6/94 at 3 (emphasis in original).] Moreover, the information included in the document did not change the results of scientific tests which Bender, Whitehurst's technician, and not Whitehurst, had conducted on the items of actual evidence.
Discussions of the information provided in the Whitehurst memorandum among Unit Chief Corby, former Unit Chief J. Christopher Ronay, and Scientific Analysis Section (SAS) Chief James Kearney did not result in any instruction to Hahn to consider the memorandum as a supplementary "report." The draft report makes clear that Kearney, Corby, and Ronay knew about Whitehurst's memorandum, had discussed it among themselves, and did not relay to Hahn any concerns they may have had in this regard. Hahn was left with a document that he justifiably did not consider a Laboratory report, which discussed speculations appearing to be a defensive reaction to the "confession" of Arete (which was not even introduced into evidence at trial) but contained no reported results of actual chemical tests done on the specimens involved. If Kearney, Corby, and Ronay were aware of the document and as managers failed to convey its status to Hahn, then Hahn is not to be faulted for disregarding its value to the trial proceedings.
E. Other Matters
Whitehurst alleged that Tom Thurman and Roger Martz violated FBI policies and procedures, fabricated evidence, perjured themselves, and obstructed justice, and that then-prosecutors Louis Freeh and Howard Shapiro engaged in prosecutorial misconduct. [Part Three, Section B at 1.] The OIG found no misconduct by any of these individuals. [Id. at 2, 29.] The OIG did, however, conclude: (1) that Martzs testimony regarding his comparison of smokeless powder samples was ambiguous; [Id. at 24.] and (2) that Robert Webb, the examiner who analyzed the packaging tape, black paint, RTV sealant and glue found in the bombs, overstated his conclusions. [Id. at 15.]
OIG Finding Regarding Martz: Martzs testimony on direct examination that he had been unable to "successfully compare" powder from the bombs with powder obtained from the Shootin Iron Gun Shop sometime after the defendant had bought powder there was "ambiguous." [Id. at 23-24. The draft report further concludes, however, that Martz did not suppress exculpatory information regarding his comparison. Id. at 24.]
Response: The draft reports characterization of Martzs trial testimony appears erroneous, and should be deleted. Contrary to the OIG's findings, we believe an examination of Martzs trial testimony in VanPac reveals that he did not testify ambiguously and instead that he truthfully answered the questions put to him. Martz was asked: "Were you asked to compare the four specimens in front of you with the off-the-shelf can?" and he replied that he was. Martz was then asked, "Did you do that?" and he responded that he did. The next question was "Could you determine anything at that point?" to which Martz replied, "No, I was not able to determine it," and went on to explain why. [Transcript at 1933. ]
This excerpt from the trial transcript in VanPac demonstrates that Martz simply answered the questions that were posed to him. Even if those questions were not as direct or artful as they might have been, that lack of clarity should not now be determined to be Martzs fault. Moreover, when Martz was specifically asked on cross-examination whether he could determine from his comparison of the powder samples whether they came from thesame batch, he answered that specific question truthfully, and said that he could not: Q. "They were both the Red Dot [powder] but you could not determine from your comparisons that they came from the same batch?" A. "I was trying to determine if they came from the same batch and I was not able to." [Id. at 1950.] Thus, Martz expressly acknowledged the limits of his examination, and did not, even unintentionally, fail to provide the jury with complete and accurate information.
OIG Finding Regarding Webb: Webb overstated his conclusions.
Response: The draft report also concludes that Robert Webb, a former examiner in the Laboratory, overstated his findings in the VanPac case. [Part Three, Section B at 15.] Based on that conclusion, the draft report recommends that any analysis by Webb be reviewed by another qualified examiner if used in future cases. [Part Five at 16.] We submit that the OIG should consider whether these findings are overly critical and potentially inaccurate in light of information provided to us. First, it is unclear whether the OIG is aware of all of the tests performed by Webb in VanPac. The draft report states that Webb conducted "microscopic examination, so-called wet chemical analyses, analysis with fourier transform infrared spectroscopy (FTIR), and pyrolysis gas chromatography (PGC)." [Part Three, Section B at 14.] However, Webb informed us that he also examined the items at issue using "polarized light microscopy" (PLM), a technique that could permit a determination whether two items came from the same batch or lot.
Second, it is our understanding that the tests that the draft report does identify would be sufficient to allow an examiner to determine whether two items came from the same manufacturer. [Contrary to Whitehurst s allegations, those tests have been validated by both internal and external proficiency testing. We note that the draft report apparently disagrees with Whitehurst s assertion that " data do not exist to allow one to say that two samples with a similar chemical composition necessarily came from the same source, " since the report specifically recognizes that a determination of origin may be possible with sufficient information. Id. at 16 n.8. However, the report never expressly refutes Whitehurst s claims.] The report does not take a firm position on this, but merely questions Webbs views regarding the efficacy of the tests. [Id. at 15.]
The draft report appears to reflect a misunderstanding of the nature and use of the FBIs databases to evaluate whether two items have a common origin. It is true that, at the time of the VanPac case, neither Webb nor the FBI had a database that would confirm thatmaterials like those involved in the samples "did in fact differ among manufacturers in terms of their chemical composition and physical characteristics." [Id. at 15.] No such database exists. While the FBI does have some databases and reference files with respect to certain items (such as automotive paints and tape), those resources merely allow an examiner to determine what, if any, characteristics an unidentified sample has in common with known samples. The ultimate comparison and determination whether the two samples are from the same source is made by the examiner, based on all of the information available, including such factors as the color and texture of the item.
Finally, the draft report states that questions regarding differences in certain of Webbs test results could not be resolved because documents were missing from some of the case files. [Id. at 16-17.] We do not believe that it is appropriate for the OIG to intimate there were deficiencies in Webbs analysis [Id. at 17.] and make a negative finding against him [Part Five at 16.] when documents that the OIG claims to need to resolve this issue are not available. For all of these reasons, we request that the finding regarding Webb be reassessed.
2. O. J. Simpson
OIG Finding: Roger Martz was not adequately prepared and did not exhibit the proper demeanor at trial.
Response: Whitehurst alleged that after Martz testified in the Simpson criminal case, scientists at the Forensic Science Research Unit (FSRU) claimed that he had committed perjury by testifying that he had developed the method used to examine the blood evidence. Whitehurst also alleged that Martz misled the jury concerning the FSRUs validation studies and events surrounding the protocol, misled the defense by stating that all digital data from the analysis of the evidence had been erased, and generally testified in an arrogant manner. The OIG found that there was no basis to conclude that Martz committed perjury or misled the jury or defense, or that he improperly erased digital data. The draft report does, however, conclude that Martz lacked adequate preparation and had deficient note-taking and record-keeping practices. In the draft, the OIG also expresses its own dissatisfaction with certain non-substantive aspects of Martz's trial presentation and demeanor.
We object to the draft report's criticism of Martzs trial presentation, [Part Three, Section F at 15-16.] and request that it be deleted. The characterization of Martz as "ill-at-ease" and "defensive" appears to be well outside the scope of the OIG's inspection and inherently subjective. Also, we do not believe this investigation subjected any other examiners courtroom testimony to evaluation as to "demeanor." To single out Martz in this regard is unfair. To a great degree, "adroitness or maladroitness" in a witness is in the eye of the beholder. While we agree that it is fair for the draft report to comment on the adequacy of note-taking and record keeping, the manner in which these criticisms are portrayed in the draft appears to obscure the most important finding regarding Martz's testimony in the Simpson case -- that both his science and his testimony were correct and reliable as to whether the blood evidence from the rear gate and socks contained levels of EDTA that were consistent with blood from the test tubes.
3. Paolo Borsellino
OIG Finding: Robert Heckman made several misstatements during his trial testimony.
Response: Whitehurst alleged that Robert Heckman may have testified outside his area of expertise and improperly rendered an opinion concerning the explosives residue analysis. [Part Three, Section H4 at 1.] The OIG rejected this claim and concluded that Heckman did not testify outside his area of expertise or improperly render an opinion in this case and that Heckman's testimony was not unreliable due to his alleged failure to consider potential contamination. The OIG, however, did conclude that Heckman made several minor misstatements during his testimony. Most of the discrepancies noted are relatively minor, and we find the criticism of Heckman to be unwarranted in light of the significance of the issues involved.
First, Heckman testified that it is increasingly common for C-4 to be used commercially in quarry and mining operations. The OIG found, however, that this is inaccurate because C-4 is not used for such purposes due to expense. Heckman acknowledged to us that C-4 is not used in quantity for this reason. His point, however, was that ten (10) years ago C-4 was seldom used commercially, whereas it is now more common to see C-4 used in the commercial sector in quarry operations, mining, and building demolition. During his testimony, Heckman was trying to indicate that C-4 is no longer exclusively a military explosive, but that it may also be found in some commercial contexts as well.
Second, Heckman testified that RDX usually appears as a solid block but can be pulverized into a powder. The OIG found this could be misleading because RDX initially is manufactured as a powder. This criticism is not well founded. Heckman recognized that RDX is initially manufactured as a powder but was trying to convey that RDX is commonlyfound in block form. We do not believe this rises to the level of an inaccuracy in his testimony.
Third, Heckman testified that most detonators use RDX in the charge while the OIG found that PETN is most commonly used for this purpose. Both PETN and RDX are frequently used for this purpose, so again we do not believe this rises to the level of an inaccuracy in Heckman's testimony.
Fourth, Heckman testified that the FBI had "electronically" examined fragments of components and determined that they were part of a transmitter/receiver. [The OIG incorrectly refers to Heckman as "Higgins" when it indicates that he acknowledged he was mistaken.] When Heckman gave that testimony, he did not mean to say that the fragments had been examined with electrical leads, but that the FBI did an electronic analysis of the circuit to determine what electrical components were in the circuit board fragments. While Heckman could have been more precise in this testimony, characterizing his testimony as inaccurate seems overly critical.
4. Gino Negretti
OIG Finding: Alan Jordans testimony contained one minor inaccuracy.
Response: We believe that the draft report contains a number of misstatements regarding Alan Jordan's testimony in court and his interview with investigators. Most significantly, the OIG's draft report incorrectly states that Jordan's testimony was "inaccurate" when it more properly should be said that he could have been "more accurate" in discussing whether the residue found was "identified" or "consistent with" RDX. At trial, Jordan was not asked to state exactly what Whitehurst found. Instead, Jordan was asked "did Mr. Whitehurst send back a positive chemical analysis on this piece of evidence?" and Jordan responded that Whitehurst found residues "consistent with RDX and HMX." [Part Three, Section H5 at 4.] "Consistent with" is certainly more conservative than the term "identified," and it is unduly harsh to characterize this as an inaccurate or incorrect statement. In fact, if there were any effect from Jordan giving a more conservative response, it favored the defense, not the prosecution.
Furthermore, this exchange is taken out of context and the language in the draft report is unnecessarily critical given the context in which Jordan was testifying. In particular, the OIG's statements regarding how Jordan understated Whitehurst's reported results should be modified. [Id. at 6 n.4.] Prior to the excerpted section, Jordan had been asked questions on directexamination regarding the use of boosters and whether the explosion, the damage, and the chemicals found were consistent with a booster having been used. It is in this context, i.e., whether the residues could indicate that a booster was used, that Jordan used the phrase "consistent with."
In the draft report, the OIG indicated that Jordan "doubted whether a low explosive could have caused the type of damage Jordan had observed in certain pipe fragments." [Id. at 2.] Jordan indicated to us that he never said that he "doubted" whether a low explosive could have caused the type of damage observed. Instead, Jordan told the OIG it was his opinion that the damage could not have been caused by a low explosive. That is why he asked Whitehurst to re-examine other items for possible high explosives residue. Based on his experience, knowledge, and training, Jordan formed the opinion that the damage he observed simply could not be from a low explosive.
Finally, the OIG's statement that "we find no basis to conclude that Jordan colluded with counsel to prevent Whitehurst from testifying" is unnecessarily inflammatory. [Id. at 8.] There is no allegation in the draft report that Jordan colluded with counsel. The allegation as reported in the introduction is directed against the prosecutor, not Jordan. This sentence should be re-phrased to more accurately address the allegation and should not erroneously suggest that there was an allegation of collusion directed at Jordan when, in fact, there was none.
OIG Finding: Robert Heckman made improper additions to Whitehurst's dictation.
Response: Whitehurst alleged that Heckman made unauthorized additions to his dictation. While the OIG noted that Heckman was apparently motivated by a desire to provide more helpful information, the OIG agreed that Heckman made improper additions to Whitehurst's dictation by adding statements outside his area of expertise to the section designated "Instrumental Analysis." [Part Three, Section H6 at 1, 8.] The OIG rejected the idea, however, that Heckman purposefully tried to mislead the reader concerning the authorship of the questioned paragraphs. [Id. at 9.]
In our discussions with Heckman, he conceded that he has no knowledge of Ion Mobility Spectrometer (IMS), and that it would be inappropriate for him to make comments regarding IMS results. [As noted by the OIG, Heckman also acknowledged that he should not have placed the paragraphs under the "Instrumental Analysis" section without somehow distinguishing his additions from Whitehurst's dictation.] He maintained, however, that he was not inserting his own impressions but was merely paraphrasing Whitehurst in an attempt to make the report "more understandable."
In light of these comments, we think the draft report mischaracterizes the nature of Heckmans additions and the basis for their inclusion in the report. First, Heckman was not "add[ing] his own observations about the IMS results from the explosion scene." [Id. at 4.] Instead, after reading Whitehurst's dictation, Heckman consulted with Whitehurst and, in an attempt to make Whitehurst's report "more understandable," added a section paraphrasing what Whitehurst had indicated in their discussions. Heckman did not add his own observations to Whitehurst's dictation but added a summary of what Whitehurst had explained to him.
Second, the report refers to Heckman's attempt at clarification as "improper" or "unauthorized" additions. Given Heckman's intentions to help the contributor, these characterizations of his actions appear unnecessarily critical.
6. Judge John Shaw
OIG Finding: The analysis performed by the Laboratory may not have identified all substances present in the bomb.
Response: Whitehurst alleged that Ronald Kelly prepared a report that identified smokeless powder in a pipe bomb sent to federal judge John Shaw and that the analysis was flawed because it did not determine if materials other than smokeless powder were present in the bomb. The OIG concluded that the analysis performed may not have identified all substances present in the bomb, and that Laboratory personnel had different understandings concerning applicable protocols for this type of analysis. [Part Three, Section H7 at 1, 5.]
The OIG's findings create the false impression that the Laboratory failed to follow up on important evidence. While it is fair to say that "[i]t is conceivable . . . that some other inorganic materials were present which, if not identified in the microscopic examination, might also have escaped detection through the GC/MS and FTIR analyses that Kelly performed," [Id.] Kelly's microscopic examination did not detect the presence of inorganicmaterial on smokeless powder. That microscopic examination would have revealed significant other material and would have alerted Robert Heckman to have Steve Burmeister do further work. There was nothing to suggest that such additional testing was necessary in this case.
7. The FBIs Office of Professional Responsibility and Office of the General Counsel
a. Office of Professional Responsibility (OPR)
The OIGs draft report addresses a number of different investigations conducted by the FBI's Office of Professional Responsibility (OPR). As an initial matter, we note that in the summary of Whitehursts allegations, the report states that OPR "advised" Terry Rudolph that its inquiry had not developed facts warranting any administrative action. [Part Two at 16.] The report later states that OPR "concluded" that the evidence did not warrant administrative action, and did not support Whitehursts claims. [Part Three, Section A at 17-18.] This characterization of OPRs conduct suggests a lack of understanding of OPRs role within the FBI. OPR investigates allegations of employee misconduct; it neither draws nor offers any conclusions based on its investigations, and it does not advise employees whether action will be taken. Rather, OPR makes its investigation available to the Administrative Summary Unit for evaluation and, ultimately, adjudication. To the extent the draft report suggests some other process, it must be corrected.
With respect to specific findings by the OIG, the draft report addresses an investigation conducted by OPR in 1991 regarding allegations made by Whitehurst against Terry Rudolph. The OIG concludes that OPR should have conducted further investigation with respect to Whitehursts claim that Rudolph committed perjury in an unidentified case in the Southwest. [Id. at 19.] However, in reaching that conclusion, the OIG implies that the only investigation conducted by OPR with respect to that claim was to interview Whitehurst and Rudolph. In fact, we have been informed that even though Rudolph denied Whitehurst's allegation, OPR interviewed other individuals as well, none of whom could corroborate Whitehurst's assertion that Rudolph had talked about perjury or that Rudolph had committed such an act. Moreover, the OIG incorrectly suggests that a review of a transcript of Rudolph's testimony would necessarily disclose whether he had perjured himself. [Id. at 20.] OPR properly exercised its discretion not to expend further resources to investigate a nebulous allegation.
The OIG also concludes that OPR should have further investigated an incident involving Whitehursts wife, Cheryl Whitehurst, and Kenneth Neu to ensure that Neus supervisors had addressed the matter with him. [Part Four, Section B at 12-13.] In reaching that conclusion, the OIG fails to give sufficient weight to Cheryl Whitehursts statement to OPR that Neus supervisors were in fact aware of the incident. [We note that, in quoting Cheryl Whitehurst s sworn statement to OPR, the OIG omits the paragraph in which she describes how she became aware that Neu s supervisors had been notified of the incident. Id. at 12. That omission is misleading because the OIG fails to indicate, through ellipses or other punctuation, that the paragraph had been deleted.] Given that fact and given also that the incident involved a minor conflict between colleagues, not employee misconduct, OPR was justified in determining that the appropriate personnel had been notified of the incident and that no further investigation was required.
b. Office of the General Counsel (OGC)
In the analysis of the FBI's publication of the UNABOM article, the OIG includes a gratuitous finding regarding a statement in an October 5, 1995 letter from Inspector-Deputy General Counsel James M. Maddock. [Part Three, Section H9 at 5-6, 8.] In that correspondence, Maddock forwarded to the OIG a copy of a memorandum prepared by Thomas J. Mohnal for Criminal Division trial attorney Tom Roberts which responded to allegations raised by Whitehurst. Mr. Maddock advised the OIG:
Based on my discussions with Mr. Mohnal, Mr. Roberts has apparently concluded, after reviewing the memorandum, that Mr. Whitehursts allegations are unsubstantiated. This information is being provided because it bears on the credibility of Mr. Whitehurst and also illustrates the disruptive impact that his allegations have had on FBI operations.
The draft report finds that "the OGC was not justified in concluding, . . . that Roberts' conclusions bore on Whitehurst's credibility and Whitehurst's disruptive effect on the FBI." [Id. at 8.] We find this to be an unfair criticism. Maddock was transmitting information he believed may be relevant to the OIG's ongoing investigation concerning the voluminous accusations Whitehurst had made concerning the FBI Laboratory. Maddock, however was not making any finding regarding credibility in his letter but was only providing potentially useful information to the OIG to facilitate the investigation. In any event, we note the OIG's draft report finally concludes that "Whitehurst appears to lack the judgment and common sense necessary for a forensic examiner . . . [and] . . . we do not think that Whitehurst caneffectively function within the Laboratory." [Part Five at 36.] Implicit in this determination is a finding regarding Whitehurst's credibility.
The draft report acknowledges, as Maddock's October 1995 letter implied, that Whitehurst's reckless charges of perjury, fabrication of evidence, conspiracy, and suppression of documents evidenced a serious lack of judgment on Whitehurst's part [Id. at 33.] that contributed to a disruptive and "uncooperative atmosphere" in the Laboratory. [Part Three, Section H6 at 12.] As the draft report indicates, "[p]artly as a result of the sweeping accusations Whitehurst has made against others, it has become increasingly difficult for him to work with examiners in the EU and other units of the Laboratory." [Id. at 36.] The OIG, therefore, recognizes, as Maddock observed in his letter, that Whitehurst's "sweeping accusations" did indeed have a "disruptive effect" in the Laboratory.
We recommend, therefore, that the reference to Maddock and the October 5, 1995 letter be removed as serving no useful purpose.