II. COMMENTS ON THE OIGS FINDINGS AND RECOMMENDATIONS CONCERNING INDIVIDUALS
A. Roger Martz
The draft report is highly critical of Roger Martzs review of Terry Rudolphs casework. [Part Three, Section A at 15-16.] While Martzs response to Kenneth Nimmichs request to conduct that review was somewhat misleading, the OIG fails to recognize the fact that Martz was neither Rudolphs supervisor nor responsible for his work. His only part in the review was to respond to Nimmichs admittedly imprecise oral request. The OIG's findings, in our view, are disproportionate in the blame they assess to Martz. Ultimately, the failure to recognize the seriousness of the allegations concerning Rudolphs manner and methods of work was a management failure for which Martz should not be held responsible.
In the Trepal case, we disagree with the conclusion that Martz overstated the significance of his results by testifying that thallium nitrate had been added to the Coca-Cola. [Part Three, Section H13 at 1.] We believe that Martz was correct and the draft report wrong in its analysis of the results of his examinations. Furthermore, as pointed out above, the draft report errs in stating that Martz did not himself identify thallium. [Part Five at 4.] The SEM results, as performed by Martz, show the presence of thallium on Q1.
The comments that Martz appeared to have a "lower threshold of scientific proof" and "to lack appropriate scientific rigor in his approach to examinations" are unduly sweeping. In fact, as shown by the draft report, Martzs conclusions in the Simpson case and, we believe, in Trepal, fully comport with appropriate levels of proof and scientific rigor. We believe that the accusation that he "sometimes formed conclusions too quickly without acknowledging legitimate questions about their validity" is again too sweeping, and only holds true for the urea nitrate incident in the World Trade Center case, where Martz was not the original examiner.
As indicated above with respect to VanPac, we take issue with the draft reports finding that Martz testified "ambiguously," when in fact, the draft report actually objects to the form of the question put to Martz, something not within his control.
In the Simpson criminal case, also addressed previously, we believe that the draft report unfairly singles out Martz for criticism of his "demeanor" as opposed to the substance of his testimony. The criticism unfairly obscures the reliability of his scientific results in this case.
We do not quarrel with many of the draft reports criticisms of Martz, such as inattention to note taking and failure to properly mark charts and exhibits. However, the language used by the OIG, especially the attack on Martz's general credibility, does a grave disservice to someone whose ultimate scientific conclusions in the cases under investigation, with one exception, have withstood scientific scrutiny. The conclusion that Roger Martz "lacks the credibility, judgment, and temperament that is essential for a unit chief" seems to be an overly broad condemnation in light of the record.
B. David Williams
1. World Trade Center
With regard to the World Trade Center investigation, the OIG draft report concludes as follows:
Most egregiously, Williams gave a scientifically unsupportable opinion in stating that the main charge was urea nitrate. That opinion was improperly based on information linking the defendants to urea nitrate that was not related to any scientific analyses of the bomb scene. [Id. at 8.]
As set forth in our response to the OIG's findings with respect to the World Trade Center case, [Part Three, Section C.] we believe it is unfair to criticize Williams testimony in this regard when that testimony was elicited by unartful questioning by defense counsel. We therefore object to the draft reports finding that Williams opinion was "improperly based on information linking the defendants to urea nitrate." [Part Five at 8. We note that Williams opinion in his Laboratory report and on direct examination was that urea nitrate could have been the main charge.] Williams only stated this opinion in response to an open-ended question on cross-examination which allowed him to consider more than the "scientific analyses of the bomb scene."
Moreover, according to AUSA Gil Childers, the lead prosecutor in the Salameh case, Williams testimony on cross-examination was proper and none of the inaccuracies criticized by the OIG were significant in the jurys determination of guilt.
To the extent we disagree with the draft reports findings regarding Williams role in the manufacturing of urea nitrate, we object to the report's conclusion in that regard. In addition, we object to the conclusion that Williams testimony "appears intended" to reach the most incriminating result. [Id. at 8.]
2. Oklahoma City Bombing
Again, we object to the OIGs speculative conclusion that Williams opinions "appear to be biased in favor of the prosecution." [Id. at 9.]
In addition, because we believe Williams consideration of search results was proper in the context of his World Trade Center testimony, we object to the OIGs conclusion that Williams "again" improperly relied on information linking the defendants to ANFO. [We note, however, that Williams opined that the main charge was approximately 4,000 pounds of ANFO prior to the search of the defendants residences.]
C. J. Thomas Thurman
Tom Thurman's performance as an explosives examiner and unit chief is discussed in several sections of the draft report [Primarily in Part Three, Sections B, G, H1, H10, and H12.] because Whitehurst alleges that Thurman is responsible for 12 types or instances of misconduct, William Tobin alleges Thurman engaged in misconduct in two respects, and Steve Burmeister alleges that Thurman acted improperly in one instance. [Whitehurst has alleged that Thurman engaged in the following misconduct: (1) purposely slanted reports to favor the prosecution (We are unable to specify Whitehurst's precise allegation concerning Thurman because the FBI has not been provided a list of these allegations or permitted to review materials that may assist us in identifying Whitehurst's concerns. We assume that Whitehurst has alleged that Thurman "slanted" reports because the draft report indicates that "Whitehurst has generally alleged that FBI examiners in explosives-related cases have purposefully slanted reports to favor the prosecution," (Part Three, Section A at 10) and the OIG has drawn conclusions regarding Thurman's culpability in this regard.); (2) circumvented Laboratory procedures in VanPac by having Martz analyze material from the mail bombs; (3) improperly based his opinion on Martz's flawed analysis in VanPac; (4) improperly testified outside his field of expertise regarding various matters in VanPac; (5) lacked a factual basis for certain testimony regarding explosives used in the bombs in VanPac; (6) lied on the stand about examinations done by the Laboratory in Yu Kikumura ; (7) violated FBI procedures or protocols by testifying outside his expertise in Yu Kikumura ; (8) failed to inform the court that his undergraduate degree was in political science in Yu Kikumura ; (9) otherwise misled "the jury" in Yu Kikumura ; (10) incorrectly suggested that the defendant intended to make a large and powerful bomb from ammonium nitrate, aluminum powder, and mercury fulminate in Yu Kikumura ; (11) altered Whitehurst's AE dictation during the period 1987-1992; and (12) erroneously approved Dave Williams' Laboratory report regarding the Oklahoma City bombing. William Tobin has alleged that EU examiners inappropriately and inaccurately reported wire gauges and that EU Chief Thurman failed to arrange for necessary training. In an unrelated matter, Tobin asserted his belief that examin ers in the Firearms and Toolmarks Unit (FTU) and EU reported results of metals-related examinations in the La Familia case in a mislead ing or incorrect manner. Steve Burmeister alleged that Thurman included inappropriate conclusions in a 1993 case (William Wirt Middle School) in which Burmeister was AE and Thurman was PE.] Although the OIG found that Tobin's allegations of misconduct were without merit, ten of Whitehurst's allegations were unfounded, and one of Whitehurst's allegations involved a misunderstanding regarding procedure for handling AE dictation which was resolved in 1992 with a simple oral request, the treatment of these allegations leads the reader to believe that, by their sheer weight, they must imply some serious misconduct on Thurman's part. The laborious treatment of each allegation without clear indication that these allegations were unfounded inaccurately creates the impression that "where there is smoke, there is fire." This deprives the reader of a clear road map to the OIG's conclusions and deprives Thurman of the recognition to which he is entitled as a dedicated civil servant of 27 years who has committed a few minor mistakes and one significant managerial error in approving Williams' report on the Oklahoma City bombing.
In addition to the draft report's tone, we request review of the following findings to ensure that the report is both accurate and fair.
OIG Finding: In the William Wirt Middle School case, Steve Burmeister had validly informed Thurman of misstatements in his report, but Thurman failed to revise the report accordingly. [Part Three, Section H10 at 14-16.]
Response: There does not appear to be a valid basis to infer that Thurman was aware of Burmeister's concerns regarding the William Wirt Middle School report. The draft report recognizes that Thurman does not recall these complaints, [Id. at 15 n.5.] but reaches the conclusion that he must have known, solely because "Burmeister . . . wrote a contemporaneous memorandum documenting the complaints, in which he stated he told Thurman about them." [Id.] Our reading of the draft report suggests that the "contemporaneous memorandum" to which the draft report refers is a single page note written by Burmeister entitled, "Comments by Steven Burmeister regarding case #30422012." Burmeister informed us that: (1) he does not recall advising Thurman of this information; (2) he is fairly certain that he did not show Thurman his memorandum; (3) he does not recall an instance in which Thurman was not receptive to his corrections or suggestions; and (4) it would be inconsistent with his relationship with Thurman, both then and now, for Thurman to have disregarded Burmeister's input. In the absence of documentary or other evidence that Thurman was aware of Burmeister's concerns in this case or that Burmeister conveyed his concerns to Thurman, the conclusion that Thurman was culpable in failing to revise the report should be reevaluated.
OIG Finding: Thurman as the EU chief should have taken more seriously Tobin's
concern that EU examiners were not measuring or reporting the wire gauge in accordance with industry standards [Part Three, Section H12 at 3.] and should have issued an appropriate directive to EU examiners so they understood the industry practice and reported their findings in a clearly understandable manner. [Part Five at 7.]
Response: The draft report's finding implies that the OIG inquired into Thurman's response to Tobin's concerns and found this response inadequate. It is our understanding, however, that the OIG did not so inquire. We are advised that Thurman attempted to arrange for Tobin to conduct the requested training but, because Tobin often worked off-site, was unsuccessful. Unable to obtain this training from Tobin, Thurman contacted a non-Agent examiner who assisted Tobin (Mr. Michael Smith), Greg Carl, Thomas Mohnal, and an industry contact specializing in threading machines for pipes and related issues, such aswire gauge, for assistance. Thereafter, Thurman instructed the EU regarding wire gauging as Tobin had requested; Tom Mohnal recalls this instruction, a number of those present, and a subsequent occasion on which Thurman required that a report be redrafted to clarify the gauging measurements in compliance with Tobin's request. Because it appears that the questions that would elicit this information were not asked, we request that the conclusions regarding Thurman's response to Tobin's request be omitted. We also note that a factual recitation would be preferable to repeated expressions of "concern."
We also request review of the following matters which do not affect the OIG's ultimate findings or conclusions but which are important to the accuracy of the report.
· Tobin alleged that examiners in the Firearms and Toolmarks Unit (FTU) and EU reported results of metals-related examinations in the La Familia case in a misleading or incorrect manner. The draft report states that "[b]oth Thurman and Mohnal seemed to be concerned more about Tobin's motive for issuing [dictation conflicting with EU and FTU reports] than about the merits of the points [Tobin] raised," and that "Thurman appeared to be chiefly concerned with defending the report issued by EU examiner Mohnal and attempting to persuade others that Tobin's February 13 dictation should be withdrawn." [Part Three, Section H12 at 8.] According to Thurman, however, the OIG did not interview him about his concerns. The OIG also indicated no basis for establishing the issues that actually concerned Thurman. [We understand Thurman's primary concern was resolution of the potential problems created by the submission of conflicting Laboratory reports.] We would request that the OIG either further investigate this matter or delete this conclusion.
· With respect to the allegation that Thurman altered Whitehurst's AE dictation during the period 1987-1992, the draft report fails to note that none of the 13 cases in which AE reports were substantively altered resulted in prosecution; in 10 of the cases no subject has been identified and in the remaining 3 cases unexploded devices were recovered intact and resulting prosecutions would be unlikely to rely on the PE reports involved. Consequently neither defendants' rights nor prosecution efforts were affected in any way. [Memorandum from J. J. Kearney to Mr. Ahlerich regarding Alter ations and Changes in AE Reports by PE Examiners Without Approval of the AE Examin er dated 3/31/95 at 6 (provided to the OIG by the FBI on 9/27/95, but not dis cussed in the draft report).] The draft report also fails to note that Thurman has not revised Whitehurst's reports, whether to improve their readability or otherwise, since 1992. [Id. at 7 ("The practice of altering AE dictation . . . was discontinued by Thurman in December 1992 when the potential difficulties of continuing the practice were brought to his attention by SSA Corby, Unit Chief, MAU. Thurman's discon tinuance of the practice is borne out by the fact that no reports after November 1992 where Whitehurst was an AE examin er to Thurman have been shown to be altered.").]
· With respect to the finding regarding Yu Kikumura that "[i]n some areas, Thurman's testimony contains ambiguities or minor inaccuracies," [Part Three, Section H1 at 1.] this finding cannot be understood in context unless the OIG's previously discussed understanding of the pressures of in-court testimony is restated along with this criticism. To expect a reader to relate a qualifying statement appearing in the early pages of the draft report [The draft report itself acknowledges 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 like that employed in our investigation." The OIG 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." Part Two at 1-2.] to a criticism appearing sections later is unrealistic. Therefore, we request that the OIG either omit the comments concerning "ambiguities or minor inaccuracies," an issue with respect to which no allegations were made and regarding which no conclusions of misconduct were reached, or add the qualifying language regarding the pressures of in-court testimony contained in Part Two.
· We agree with the draft report's conclusion that Thurman should not have approved Williams' report in the Oklahoma City bombing case. The discussion of this case is, however, misleading and inaccurate in at least two respects.
First, although the draft report concludes that Thurman's reference to "homemade-type mixtures . . . is an inadequate ground to eliminate the commercial explosives in total," [Part Three, Section G at 23.] the OIG did not ask whether Thurman had advised them of all bases for his approval of this conclusion and, in fact, this was only one factor raised in the discussions between Thurman and Williams. During Thurman's interview, he began his response to the OIG inquiry as indicated, but was asked unrelated questions before he had completed his response. If the OIG believes Thurman's bases for approving this conclusion to be important to their investigation, they should permit him to clarify this issue in another interview.
Second, we believe it is inaccurate to state that "Thurman acknowledged that 2000 pounds of ANFO and 500 pounds of commercial dynamite could have been used in the [Oklahoma City] blast." [Id. at 23.] According to Thurman, the inquiry concerning this composition was posed as a hypothetical scenario rather than as a specific reference to the Oklahoma City explosive.
D. Other Individuals
Whitehurst made numerous allegations of impropriety including unethical conduct, scientific fraud, and prosecutorial misconduct against many individuals within the FBI. The OIG concluded, after investigating these allegations, that in many cases Whitehurst's allegations were "grossly overstated" and "without merit." [Part Five at 28.] The OIG found that the following individuals engaged in no misconduct: Rod Asbury, Louis J. Freeh, Donald Haldimann, Alan Jordan, Ronald Kelly, Lynn Lasswell, Richard Laycock, Bruce McCord, Thomas Mohnal, Mark Olson, Alan T. Robillard, and Howard Shapiro. [The OIG has not yet provided us with its findings regarding Wallace Higgins.]
1. Michael Malone
William Tobin, a metallurgist with the Materials Analysis Unit (MAU), told the OIG that Michael Malone, formerly of the Hair and Fibers Unit, testified inaccurately and outside his area of expertise during the 1985 hearing related to the impeachment of former U.S. District Judge Alcee Hastings. [Part Three, Section H12 at 1.] The draft report agrees, and repeatedly states that Malone testified "falsely," [Id. at 17, 18, 21; Part Five at 13, 14.] thereby implying that Malone deliberately attempted to deceive the impeachment panel.
There is no evidence to support such an implication. The OIGs draft report itself finds that Malone did not knowingly and deliberately testify contrary to Tobin's report in the Hastings case -- a report which was not issued until nearly one month after Malone's testimony. [Part Three, Section H12 at 18. ] Moreover, the OIG fails to give sufficient weight to the fact that Malone was present at the time Tobin conducted the tensile test on the purse strap being analyzed. Because he was present when the test was conducted, Malone had a legitimate basis for testifying about how that test was performed (i.e., that the purse strap had to be "jury rigged" before the test could be completed).
While Malone may not have been entirely accurate in this regard, it is not appropriate to characterize his testimony before the impeachment panel as "false." [See Webster s II New Riverside University Dictionary (1994) at 463 (including "deliberately untrue and "intentionally deceptive" as two meanings of the word "false").] Malone's testimony may have been misleading, but it was not intentionally deceptive. To the contrary,Malone specifically told the impeachment panel that he was not an expert regarding the tensile test. [See Part Three, Section H12 at 14 ( " You are getting out of my area of expertise now as far as exactly what that figure means. I am a person who does microscopic examinations . . . . " ).] Malone's testimony is more properly described as inaccurate, and we would request that the reports findings be revised accordingly.
2. Richard Hahn
After an exhaustive analysis of Hahn's Avianca testimony, the OIG concludes that Hahn did not commit perjury, fabricate evidence or mislead the court. We concur in that judgment. We believe, however, that the OIG's findings regarding Hahn are unfair and erroneously suggest that his conclusions were structured to help the prosecutor's case. Hahn's conclusions, some of which were independently buttressed by Colombian and other authorities, were reached after his consideration of a number of factors that he could properly rely upon as an expert witness.
The suggestion that Hahn should have done more to validate his jetting theory before the second trial unfairly implies that additional effort would have established the weaknesses of that theory when, in fact, there was a paucity of literature and scientific analysis on this issue at the time. The suggestion that Hahn should have restated Whitehurst's 1994 memorandum verbatim mischaracterizes the nature of that document and Hahn's role as an expert.
Reflective of the inherent unfairness of the OIG's highly detailed, retrospective analysis of Hahn's testimony is the OIG's implicit recognition that science is an evolving process and that new events and new information frequently dispel or alter extant hypotheses. As evidence of this point, we note the OIG's reliance on evidence acquired from the Oklahoma City bombing, which occurred in April 1995, to dispel an opinion expressed by Hahn in his Avianca testimony in 1994. [Part Three, Section E at 12.] It is unknown whether the OIG's "experience," absent the Oklahoma City case, would have been sufficient to fault Hahn's opinion in Avianca that the pitting was caused by an explosive with a VOD of at least 20,000 feet per second. We request that the analysis of Avianca be reevaluated, and that any suggestion that Hahn's actions or conclusions were intended to support the prosecution's theory of the case be deleted.
3. Robert Heckman
The OIG found that in Conlon, Robert Heckman made improper additions to Whitehurst's dictation by adding statements outside of his expertise to the section of the report designated "Instrumental Analysis." [Part Five at 11.] The OIG also found that Heckman's conclusion about whether the explosive could have been of military origin was stated in a way that may have been misinterpreted. [Id. at 11.]
Heckman did not add his own observations about the IMS results from the explosion scene but was paraphrasing Whitehurst in an attempt to make the report more understandable. We do not think it is accurate to characterize his additions as Heckman's "personal opinion" since they were only a reiteration of what Whitehurst had told him. While we agree that Heckman should have labeled his inserts, it is not appropriate to characterize his attempt at clarification as "improper" or "unauthorized" additions.
4. J. Christopher Ronay
The draft report states, "[J. Christopher] Ronay told the OIG that he read the EU reports to check their format, but he did not reexamine the evidence with regard to conclusions reached by EU examiners and he did not always review the work notes, test results, or the original dictation by other examiners." [Id. at 14 (emphasis added).] To the extent this implies that Ronay only reviewed EU reports for stylistic checks, Ronay informs us it is in error. Ronay states that he used the term "format" before the OIG to describe a review for facial validity of the report (i.e., a review that the examiner was trained and properly qualified to reach the conclusions in the report, and that the conclusions appeared valid).
5. Robert Webb
As discussed above in connection with the VanPac case, the OIG's draft report finds that Robert Webb, the examiner who analyzed the packaging tape, black paint, RTV sealant and glue found in the bombs, overstated his conclusions. We request that the OIG consider whether its findings regarding Webb are overly critical and potentially inaccurate in light of information provided to us. Although the OIG does not specifically identify that test, we have been informed that Webb performed polarized light microscopy on all of the materials. We have also been informed that the tests that the OIG does identify would permit Webb to conclude that materials came from the same manufacturer.
6. Charles Calfee
The draft report states:
[Charles] Calfee told us that he did not think it necessary that [Terry] Rudolph record in his work notes all the tests performed. To justify this position, Calfee said that he told Rudolph not to use all the evidence in his tests so it could later be reexamined if necessary. When asked how another examiner could later tell from incomplete notes what Rudolph had done, Calfee said he thought it would be a very good test of the capability of any explosive examiner if they could testify based on the incomplete notes of another examiner. [Id. at 17.]
It appears that this passage misstates Calfee's intentions. Calfee informed the FBI that he was trying to express to the OIG his more rigorous view that an examiner should not rely on notes taken some time before a trial, but should be forced to go back and do an analysis of the underlying charts and data. According to Calfee, reliance on old notes could make an examiner complacent and lead to a lack of preparation at trial. Similarly, Calfee told us that under no circumstances would he want an examiner to testify from the incomplete notes of another examiner (as recounted by the OIG), because he does not believe it is best for an examiner to testify from the notes of another examiner at all -- rather, the second examiner should do the analysis themselves and prepare their own notes from the charts and data. We believe this portion of the report should be revised to more accurately reflect Calfee's statement.
7. Wallace Higgins
The draft report provided to the FBI does not include its section labeled "Wallace Higgins." The FBI is, consequently, unable to comment on that section.
8. Alan Jordan
Whitehurst claims that Alan Jordan may have changed or misreported Whitehurst's dictation while testifying at trial. [Id. at 12.] The OIG found that Jordan did not change or misreport Whitehurst's results but that his testimony contained a minor inaccuracy. [Id. at 13.]
We object to the assertion that Jordan failed to include dictation verbatim when he prepared a brief summary report for the White House concerning the attempted assassination of former President George Bush in Kuwait in April 1993. Due to the unique circumstances involved, we find this criticism to be unduly harsh given the nature of the report and the reason it was requested. It seems inevitable that there will be some circumstances that will require that dictation be summarized and a blanket rule requiring that dictation be included verbatim in any document generated for any purpose whatsoever appears to us to be not only unnecessarily inflexible but inappropriate. It is important to emphasize that this document was not a laboratory report and that Jordan did subsequently prepare an official laboratory report which incorporated the dictation verbatim as now required.
The OIG's report should indicate that Jordan's testimony in the Negretti case could have been "more accurate" in discussing whether the residue found was "identified" or "consistent with" RDX instead of characterizing his testimony as "inaccurate." "Consistent with" is certainly more conservative than "identified" and it is unfair to characterize this as an inaccurate or incorrect statement. In fact, if there was any effect from Jordan being more conservative in his response, it was in favor of the defense, not the prosecution. Furthermore, this exchange is taken out of context. Prior to the excerpted section, Jordan had been asked on direct examination questions 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."
9. Kenneth Nimmich
The draft report states that "Kenneth Nimmich was the chief of the Scientific Analysis Section from January 1987 until February 1993." [Id. at 19.] Nimmich informs us, however, that he was chief of that Section from July 1987 until February 1993. The draft should be corrected accordingly.
10. Rod Asbury
Whitehurst alleged that Rod Asbury told him that Rudolph was "blackmailing" the FBI and that the Laboratory "practiced Black Magic" rather than science. The OIG did not find that Asbury engaged in any misconduct. [Id. at 25.] In fact, the OIG even appeared to praise Asbury for realizing that he did not have a sufficient background to substantively evaluate Rudolph's casework and for noting in a 1987 progress review that Rudolph's communication of results would improve with more comprehensive and detailed notes in preparingreports. [Id. at 25.] The OIG noted, however, that it would have been desirable if Asbury had taken further steps to address his concerns about Rudolph's casework. [Id. at 25.]
There are some minor inaccuracies in this portion of the draft report. For example, "Forensic Science Research Division" should read "Forensic Science Research Unit." [Id. at 24.] Asbury was not Associate Director of ICITAP from 1989 to 1993. [Id. at 25.] While he did work in ICITAP during this period, he was only Associate Director for the last year or so before he retired (he could not remember the exact dates but believes it was 1992 to 1993).
11. Thomas Mohnal
The OIG did not find any misconduct on the part of Thomas Mohnal yet its conclusion implies that perhaps there was misconduct but action need not be taken against him. The OIG concludes as to Mohnal that "[w]e do not recommend that any action be taken against Mohnal with respect to this matter." [Id. at 30.] The OIG concludes as to other similarly situated individuals, however, that "we do not find any misconduct by" the subject with regard to those matters investigated. [See , e.g. , Part Five at 29-31 (OIG findings regarding Richard Laycock, Bruce McCord, and Mark Olson).] We believe that the conclusion regarding Mohnal should mirror that of others who engaged in no misconduct.
12. Howard Shapiro
Whitehurst claimed that FBI General Counsel Howard Shapiro engaged in misconduct while prosecuting the VanPac case in 1991. [Part Three, Section B at 1-2.] Whitehurst also claimed that Shapiro is a "liar" because he assured Whitehurst that he would suffer no retaliation, and yet Whitehurst was subsequently reassigned to become a paints and polymers examiner. [Part Five at 31.] The OIGs draftreport does not find any misconduct by Shapiro or Louis Freeh, the prosecutors in the VanPac case, and we concur fully in that finding. [Part Three, Section B at 2, 19; Part Five at 31.]
We note, however, that although the draft report also rejects Whitehursts retaliation claim against Shapiro, the manner in which it does so is misleading. The draft report states that the OIG found no basis to conclude that Shapiro "was involved in the decision to reassign Whitehurst or that Shapiro directed or otherwise participated in any retaliation against him." [Part Five at 31.] This erroneously suggests that there was some retaliation against Whitehurst, even if not committed by Shapiro. In fact, the immediately preceding section of the draft report states that the OIG has no factual basis to believe that Whitehursts reassignment to a different unit constituted retaliation, or that he suffered retaliation for raising concerns about the Laboratory. [Part Four at 39, 43.] Accordingly, Shapiro could not have directed or participated in any such retaliation, and the report should expressly recognize that fact.
13. Frederic W. Whitehurst
The FBI understands that the OIG will take the steps it deems appropriate to allow Whitehurst the opportunity to review and comment on the draft report, including the OIG's findings regarding him.