SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC
THE ACTIVITIES OF THE FEDERAL BUREAU OF INVESTIGATION
(Part I)
TUESDAY, MAY 13, 1997
House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:08 a.m., in room 2141, Rayburn House Office Building, Hon. Bill McCollum (chairman of the subcommittee) presiding.
Present: Representatives Bill McCollum, Stephen E. Buyer, Steve Chabot, Bob Barr, Asa Hutchinson, George W. Gekas, Howard Coble, Sheila Jackson Lee, and Robert Wexler.
Also present: Representative John Conyers, Jr.
Staff present: Paul J. McNulty, chief counsel; Glenn R. Schmitt, counsel; Kara Norris, staff assistant, and David Yassky, minority counsel.
OPENING STATEMENT OF CHAIRMAN MCCOLLUM
Mr. MCCOLLUM. The Subcommittee on Crime will come to order.
Page 2 PREV PAGE TOP OF DOC
Today's subcommittee holds the first of a series of hearings concerning the Federal Bureau of Investigation. It is the responsibility of Congress to determine whether the laws passed by the legislative branch are properly and faithfully executed and that the monies authorized and appropriated by Congress are being expended as this Congress intended.
As the largest Federal law enforcement agency, the Federal Bureau of Investigation is deserving of special attention in relation to the oversight duties of the Subcommittee on Crime. Accordingly, the subcommittee's hearings will examine a number of important issues facing the Bureau today.
Over the last few years troubling allegations have been raised concerning the FBI. These allegations have been raised principally by Dr. Frederic Whitehurst, a supervisory special agent who works in the FBI lab. The numerous allegations that Dr. Whitehurst raised eventually resulted in an investigation by the Department of Justice's Inspector General. The results of that investigation were released just last month, and a 500-page report is the subject of today's hearing.
For years the FBI has been considered among the best forensic laboratories in the world. Each year scientific analysis in connection with thousands of cases is conducted at the FBI lab, both in Federal investigations and in State and criminal local law enforcement investigations. The results of those analyses often form the basis of criminal prosecutions. The accuracy of those investigations can determine the guilt or innocence of an accused. For that reason alone, the work of the lab cannot be too carefully scrutinized.
Page 3 PREV PAGE TOP OF DOC
Today we consider whether the findings of the Inspector General, which sustain a significant number of Dr. Whitehurst's allegations and point out other instances of inappropriate conduct, evidence systemic problems within the FBI lab which undermine its credibility as an objective and impartial finder of scientific fact.
We will consider ways in which the FBI laboratory can be improved and when those reforms may be implemented, and we will consider Dr. Whitehurst's disturbing allegations that the FBI has retaliated against him because of the allegations he has made concerning the lab.
The FBI laboratory is an integral part of the role the FBI plays in our criminal justice system. Congress must ensure that the investigations in the lab are performed in an impartial manner, that the best qualified people work there, and that the highest scientific standards are required of them at all times.
I think it is also essential that we assure that the FBI's personnel, when they testify at trial, not only testify from the best scientific basis, but give the most objective statements they possibly can in the witness stand.
It is, again, as I've said earlier, a question often of guilt or innocence of someone when an expert witness is called from the FBI lab, and the honesty and integrity of the process of the criminal justice system is at stake any time a witness from this laboratory testifies. This oversight is essential to helping restore public confidence that our criminal justice system is fair and just as much as humanly possible that it can be.
I welcome each of the witnesses here today and look forward to receiving their testimony.
Page 4 PREV PAGE TOP OF DOC
Are there any others who wish to make opening statements this morning? Mr. Gekas.
Mr. GEKAS. I thank the chairman. I think that the chairman is embarking on a series of very important hearings so that we can determine not only past actions or non-actions on the part of the FBI, particularly with its lab system, but also as a means for projecting a better future for the integrity and capacity of the FBI laboratory and the FBI in general.
In pre-reading some of the testimony, and specifically with respect to Dr. Whitehurst, I'm confused a little bit and will pose my questions to try to clear my own muddiness in this regard as to whether or not the case at the World Trade Center, for instance, or the current cases, are all in jeopardy because of what Dr. Whitehurst alleged or what the Office of Inspector General determined.
Those are important questions, not just to determine what we can do in the future, but how they have affected cases that are already completed and cases that may be currently in the court system. I'm very worried about all of that and am complimentary of the chairman for giving us this opportunity to examine these issues more thoroughly.
I thank the chairman.
Mr. MCCOLLUM. Thank you very much, Mr. Gekas.
Page 5 PREV PAGE TOP OF DOC
Mr. Hutchinson.
Mr. HUTCHINSON. Mr. Chairman, I want to express my appreciation to you for holding this hearing. I've been in the courtroom when experts from the FBI lab have presented their testimony and I've seen how the juries respect and have confidence in the expert testimony from the FBI laboratory. And that's something that I can assure you should never be changed. We have to maintain that confidence and professionalism. In light of that, these allegations are disturbing.
I'm grateful for the OIG and their report, but it is critical to the Federal prosecution and the fairness of our system that we have accurate information coming out of the FBI laboratory, and so for those reasons I'm very grateful for your holding these hearings. I look forward to the testimony.
Mr. MCCOLLUM. Thank you very much.
Mr. Coble.
Mr. COBLE. Mr. Chairman, I, too, appreciate your having seen fit to conduct these hearings, and thank you all for being here.
Not unlike the gentleman from Arkansas, I have witnessed jurors' responses to FBI agents who testify, and these jurors seem to respond as if the testimony came from Mount Olympus. However, when I hear about the imperfections and the mistakes that have been forthcoming, it is evident that something transpired between the trip from Mount Olympus to the witness box.
Page 6 PREV PAGE TOP OF DOC
And I think that in many instances innocent people, Mr. Chairman—and this may be revealed today—innocent people may well have been awarded active prison sentences based upon imperfect and inaccurate testimony. Now I'm not interested in seeing any guilty person walk away from the slamming door behind him, but neither do I want to see an innocent person walk into that cell. I hope that we will be illuminated today as we hear testimony, and I thank the chairman.
Mr. MCCOLLUM. Thank you very much, Mr. Coble. I might add to my colleagues, and for everybody else's information, as I indicated at the outset, this is the first of a series of oversight hearings on the Federal Bureau of Investigation.
There may be still another one on the lab, but there are certainly going to be others on such topics as the Richard Jewell matter and the Filegate question at the White House and a number of other of the more controversial concerns we have, because that's our responsibility as the Crime Subcommittee.
We have a statement from John Conyers, who is our ranking minority member on the full Judiciary Committee, that I would like to enter into the record. He will be here, but is not here at the moment. Without objection, I'd like to do so. Hearing no objection, it is so entered.
[The prepared statement of Mr. Conyers follows:]
PREPARED STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Page 7 PREV PAGE TOP OF DOC
I commend Chairman McCollum for holding today's hearing on this very important issue. I am very concerned about the crime lab and the effect the lab's problems has had and will have on criminal cases. I am also concerned about the FBI's treatment of the person who brought these problems to public attention in the first place, Dr. Frederick Whitehurst.
Some of the most serious cases criminal cases in recent years—including the World Trade Center bombing, the Oklahoma City bombing and the Unabomber attacks are all in jeopardy as a result of shoddy work at the Crime Lab. In the Oklahoma City case, Inspector General Bromwich found that some errors made by the crime lab were ''tilted in such a way as to incriminate the defendants.'' This is unforgivable and it was avoidable.
Dr. Whitehurst has been complaining about conditions at the lab since 1989—his complaints have been ignored and he has been persecuted for making them for nearly 8 years.
That means that 8 years of cases may have been mishandled—and this is 8 years after who knows how many years of cases being mishandled before Dr. Whitehurst appeared on the scene—when efforts could have been made to resolve the problems at the crime lab. This means there was plenty of time to fix things before the evidence in one of the most devastating crimes in America—the Oklahoma City case—was irrevocably tainted.
The Inspector General's report makes clear that there have been problems at the crime lab. What is most worrisome about the report, however, is what it doesn't say. The investigation only looked into specific allegations made by Dr. Whitehurst and it focused only on three of the 23 units that comprise the FBI lab. Although investigators heard of problems in other units, particularly the polygraph unit, none was addressed in the report.
Page 8 PREV PAGE TOP OF DOC
This is unacceptable. First we have allegations of misconduct ignored for over 8 years, while the man who has done us the favor of pointing out these problems is vilified by an agency more concerned with its image than with ensuring the integrity of its lab, and then, when an investigation finally is conducted, it is so narrow in scope as to ensure that significant problems go un-examined.
Clearly, it is time—actually, it is long past time—for an exhaustive review of the crime lab, its procedures and its personnel. If this report validating many of Dr. Whitehurst's allegations is not enough to convince the Justice Department to undertake such a review, perhaps it is up to Congress to arrange for one.
Our criminal justice system depends on the integrity of all of its parts—including its crime labs. Congress has the responsibility to ensure that the FBI crime lab is run in a professional and impartial manner. Nothing less can or will be tolerated.
Mr. MCCOLLUM. And at this time I will call our first panel of witnesses today.
Frederic Whitehurst—when I call you, if you could come forward, please, and be seated. Frederic Whitehurst is a supervisory special agent with the Federal Bureau of Investigation. A 15-year veteran of the FBI, he has worked in the FBI laboratory since 1986. He holds a bachelor's degree in chemistry from East Carolina University, a Ph.D in chemistry from Duke University, and a law degree from Georgetown University.
Page 9 PREV PAGE TOP OF DOC
He is accompanied today by his attorney, Stephen Kohn, of the Washington firm of Kohn, Kohn and Colapinto.
Did I pronounce that correctly, Mr. Kohn?
Mr. KOHN. Colapinto.
Mr. MCCOLLUM. Colapinto.
The second member of the panel today is Daniel Alcorn. He is an attorney with the firm of Fensterwald & Alcorn in Vienna, Virginia. Among the areas in which he concentrates his practice is litigation concerning the Freedom of Information Act. He received his bachelor's and his law degree from the University of Virginia and appears today as counsel to the National Association of Criminal Defense Lawyers.
Because this is an oversight hearing as opposed to an ordinary fact-finding hearing, I'm going to ask that each of the panelists today be sworn. That is the normal procedure for oversight hearings, so if you could stand and raise your right hand I would appreciate it.
[Witnesses sworn.]
Let the record reflect that all of the witnesses responded in the affirmative.
Page 10 PREV PAGE TOP OF DOC
Mr. Whitehurst, you're our first panelist today. We have a copy of your testimony, and we will enter the full copies of all written testimony into the record. You may summarize or give us whatever portion you wish of your statement. Please proceed to do so.
STATEMENT OF FREDERIC WHITEHURST, SUPERVISORY SPECIAL AGENT, FEDERAL BUREAU OF INVESTIGATION
Mr. WHITEHURST. Mr. Chairman, I understand that I've got about 15 or 20 minutes.
Mr. MCCOLLUM. Yes, you may take that, the appropriate length. I realize you could probably go on a lot longer than that——
Mr. WHITEHURST. No, sir.
Mr. MCCOLLUM [continuing]. But if you could put that in that parameter, then it would help us, because we need to lay the predicate to ask you some questions and so on.
Mr. WHITEHURST. Yes, I would like to, first of all, thank you for inviting me here to speak about these issues.
As a supervisory special agent of the FBI, I must inform you that the opinions I give and the statements I make are mine. They're not necessarily the opinions or the statements of the FBI.
Page 11 PREV PAGE TOP OF DOC
I would like to thank also, while I'm here, Congressman Conyers for supporting me since I first came forward in about 1993 to get the IG investigation going, and also to thank Senator Grassley for his interest and concern over the past year.
I'd like to start out by saying that I have read the report, and I find myself very much in agreement with most of that report. The report, I recognize, was put together with a great deal of effort and in my opinion is a courageous document to put forth. I know that the people that worked on that report—Mr. Bromwich's staff—put a lot of effort into it. There was a great deal of personal sacrifice and soul-searching put into that report.
I don't necessarily agree with everything in the report, but that's human. And I think as the days go into months and into—let's hope not—years, that we'll come to agreements on those issues. There are some issues that I raised, as I was supposed to, that have not panned out. There are some issues that I raised that do not appear from the report to have panned out, to have been validated. I think there are some technical errors and some errors of judgment there, and then there—the most important issues have been proven to be very real issues that we need to deal with.
I'd like to also express my concern about how we infer the data in the report. Congressman Coble expressed a concern, and Congressman Hutchinson, I believe, expressed a concern about my laboratory, the FBI laboratory, losing its credibility. That report is about a small group of apples in a bushel of apples, and before the whole bushel went rotten we came forward and said, ''Let's fix these apples.''
Page 12 PREV PAGE TOP OF DOC
The apples themselves are not necessarily all rotten. They made some bad mistakes; it's obvious from the report. But I would hope that we, number one, don't over-infer or that we don't under-infer the significance of what's in that report. If we over-infer, I'm not going to be standing with those people that choose to do that. The over-inference is that we paint a broad brush, point it at the whole FBI laboratory and say we can't trust it. We are going to be doing ourselves a disservice under those circumstances.
I've worked in that laboratory for 11 years. I've worked with some of the most professional people that I've ever had an occasion to work with. I don't think we do ourselves a good service by distrusting the product that comes out of the laboratory. But at the same time I don't think we should under-infer what is going on there.
An examiner such as myself in a 10-year period of time can examine 1,000 cases or 3,000 cases. If I go astray, I can affect the lives of hundreds or thousands of people. If 10 like me, out of the 600 and some people in the lab, go astray we can be speaking about tens of thousands of peoples' lives that might be affected.
If we be conservative and realistic, we can talk about hundreds of lives that can be affected. If we look at the reaction in this country over the matter involving the bombing in Atlanta and the errors that were made there, and multiply that times 100 or 500, we then begin to see that we can't under-infer what's going on at the FBI laboratory.
We can't say, ''Well, only one guy was doing it, or six guys were doing it, and they only did it five or six times.'' If I have 500 cases of malfeasance that have shown up in courts of law that have affected justice, then we begin to wander into a field that I've heard a lot of people talk about here up on the Hill, and that is people begin to lose faith in their Government. And I think that's very dangerous. I'm not going to over-infer the data, but I'm not going to sit back and say, ''Well, only one or two American citizens were hurt, and so it's really not that big a deal.''
Page 13 PREV PAGE TOP OF DOC
I'd like to give you a succinct summary of what I've been through in the FBI laboratory and why I'm sitting here today. I came into the FBI in 1982 and worked in FBI field offices for four years in Houston, Sacramento, and Los Angeles as a criminal investigator.
Upon my arrival at the FBI laboratory in 1986, I was met in the first week by one of my colleagues, one of our senior examiners there and warned about the bad work of one of the other fellows working there and told to stay away from him. He was shortly—that fellow that I was told to stay away from—was shortly thereafter assigned to me as a training agent. I couldn't stay away from him. I wondered, why is a senior examiner in the FBI lab telling me, a new kid on the block, about this? This is something that should have gone forward to management. I asked that question. It had gone forward to management again and again, and people were frustrated because nothing was done.
And so I introduce you to chapter one of the IG report. I personally decided that people might be being hurt. It was a sloppy work product. There were racist comments. It was an appalling thing that I was looking at.
I spent three years in combat, with combat units in Vietnam, fighting for fairness and justice and all of those things that some people have come to feel are hokey, but I believe they are the basis for this country's strength, and I wasn't going to give it up to a sloppy work product. So I just decided I'm going to ride this horse all the way in; and so I went forward. And as I went forward, my managers told me, ''Yes.'' The first one told me, ''Well, we know about it Fred. He's our cross to bear.'' He's not our cross to bear at the FBI. He is the cross to bear of every citizen whose lives he affects.
Page 14 PREV PAGE TOP OF DOC
Then they told me, ''We know there's a problem. Come on line as fast as you can and we'll move him out.'' But they never told me, ''We're going to find out who'd been hurt, and we're going to stop this work product.'' And I continued to hear complaints from my fellow examiners, from people in the laboratory who had just given up. I couldn't give up, and I won't give up.
That lasted from 1986 until 1992. That was essentially what was on the docket. How can we allow this to happen? How can we allow a guy to have an office so sloppy in a trace analysis laboratory that he's allowed to put a sign up that says, ''Garbage pit'' on it? That wasn't the FBI laboratory that I wanted to be associated with.
In 1992, the FBI had heard about this issue from me again and again, and there were a number of look-sees at it and a number of casting it aside: ''Well, it's not that bad a problem.'' In 1992 my technician came to me and advised me that she had carried my work product to another examiner who told her he really didn't care what I wrote, that he'd fix it. That was absolutely unheard of.
As astonished as this Nation was by the IG report, that's how astonished we were as examiners in the laboratory—that an unqualified individual is rewriting my reports, and as it turned out, after my investigation had been going on for 5 years, without my authorization or permission.
And then things started falling into place. There was some malfeasance going on; there were people afraid to come forward and really say something about it. A lot of us were talking about it in the hallway. That is in violation of executive order. If we have any indication of misconduct, we're supposed to come forward with it. We're not supposed to decide whether it's right or wrong; we're supposed to come forward with those indications.
Page 15 PREV PAGE TOP OF DOC
I started on a trail through my management that went from my immediate supervisor through the Director of the FBI, and at each point where I felt that the issues were not being settled I decided that—I was told to go to appropriate authority, and if they weren't going to settle it at that level that they had deemed themselves inappropriate, and I went to the next level, because the issues just were not settled—they just were not.
I found myself in the World Trade Center, coming under pressures, seeing some things that were going wrong there. I brought those issues forward. The prosecution dealt very professionally with my concerns and the concerns of my colleagues, and then a number of other cases came falling out of the woodwork.
Just because I have come forward with indications of misconduct does not mean there is misconduct, and I know that. The inference that I draw is drawn from the data I have, and it may not be as complete as it ought to be. It's as complete as I'm allowed it to be, as an FBI agent and a guy that works for the President of the United States, who puts out an executive order that tells me to come forward with these indications.
I think that I am very proud to have worked with the Inspector General's office, and I think that they finally listen. And I think that I've found the appropriate authority, and I think we've got a pretty fair analysis. Again, as I said, there are some technical errors that I perceive to be technical—excuse me—technical errors. There are also judgment errors, in my opinion. We may end up agreeing to disagree on some things.
But, finally, the report is there, and what do we do with it? And I have some suggestions. I don't see my suggestions as the only suggestions. In 1994, I wrote a paper for publication called ''Black Magic and the Bureau'' to thrust into the nose of my supervisors to tell them, ''I am not going to stop. I can't stop. It's illogical that you've told me to do this, and now you're punishing me or suppressing me when I do this.'' And I suggested what needed to happen; and most importantly, for me, the suggestions were we needed rigid oversight in that laboratory. But before the oversight, I want to know who has been hurt.
Page 16 PREV PAGE TOP OF DOC
A long time ago I saw a program in which Mr. Freeh was being featured, and they called him the New Centurion. And he brought out those concerns, that it was our job to protect the American people; we were the centurions. I believe that people could very well have been hurt. I have indication that people have been hurt. I want to know who got hurt.
And I think, finally, once we worked on who got hurt, we have proven over a 25-year period of time—and that's the time that my colleagues and I have been able to determine these things have been going wrong; the apples have been rotting—that we have not been able as an organization to handle this problem. We have inspectors. We have offices of professional responsibility. We just didn't handle this problem. We're human; we need some help.
And I think I'll close by saying that I brought some of these issues to a manager at one time, and he told me, ''Fred, there's nothing we can do about it. We're in a quicksand, a personnel quicksand. We've allowed it to go on too long.'' If I were sinking in quicksand, I'd reach my hand out to anyone with a stick or a rope and say, ''Please give me a hand. I made a big mistake, and I need some help.''
I thank you for your attention, sir.
[The prepared statement of Mr. Whitehurst follows:]
PREPARED STATEMENT OF FREDERIC WHITEHURST, SUPERVISORY SPECIAL AGENT, FEDERAL BUREAU OF INVESTIGATION
Page 17 PREV PAGE TOP OF DOC
INTRODUCTORY NOTE
Dr. Frederic Whitehurst submits an article he wrote in 1994 as his pre-filed testimony in this proceeding. The article, ''Black magic and the Bureau'' was originally submitted to the General Counsel of the FBI for pre-publication clearance review, as required under FBI regulations, on October 4, 1994. As a result of the internal reaction to this article, Dr. Whitehurst formally withdrew his request for pre-publication review on October 7, 1994. At this time, Dr. Whitehurst's Section Chief asked that he ''destroy'' all copies of the article.
In 1995 Dr. Whitehurst re-submitted the identical article for review. An ''expert'' attorney at the Department of Justice informed the FBI that the Bureau was ''likely not to prevail in court'' if the FBI attempted to suppress publication of the article. (Moschella to Maddock, October 17, 1995). Subsequently, the FBI weighed other methods to induce Dr. Whitehurst not to publish the article, including cautioning him that ''the publication of false and highly disruptive allegations could result in disciplinary action.'' Id. This advice was followed and Dr. Whitehurst was warned not to publish the article. Dr. Whitehurst internally appealed this decision. On April 15, 1996, the Acting Director of the FBI informed Dr. Whitehurst of the results of his appeal and instructed him to ''delete'' all references to the World Trade Center case from the article. In regard to publishing the remainder of the article Dr. Whitehurst was advised as follows: ''While the FBI will not withhold authorization to publish these passages, we reiterate our concern that publication of the passages may have an adverse impact on the FBI's ability to conduct its authorized functions efficiently and effectively and wish to make clear to SSA Whitehurst that his publication of these materials may not be without consequences to both the Bureau and himself.'' (Kennedy to Colapinto, April 15, 1996). As a result of the warning issued by the Acting Director, the article was not published.
Page 18 PREV PAGE TOP OF DOC
In February, 1997, as a result of a Court Order in a Freedom of Information Act suit filed by Dr. Whitehurst, the article was unconditionally cleared in its entirety by the FBI. This article is publicly released, for the first time, as Dr. Whitehurst's pre-filed testimony before the U.S. House of Representatives Committee on the Judiciary, Subcommittee on Crime. The biography contained on the last page of the article is accurate only as of October, 1994, Since that date Dr. Whitehurst was removed from his position within the crime lab and subsequently placed on administrative leave. At the time the article was submitted to the FBI for pre-publication review Dr. Whitehurst had not read the testimony of David Williams in the World Trade Center bombing cases.
The opinions expressed in the article are solely those of its author. The article does not reflect the official position of the FBI. This introductory note was prepared by Stephen M. Kohn, Michael D. Kohn and David K. Colapinto, attorneys for Dr. Whitehurst.
BLACK MAGIC AND THE BUREAU
BY FREDERIC W. WHITEHURST, PH.D. AND SUPERVISORY SPECIAL AGENT, FEDERAL BUREAU OF INVESTIGATION
Washington, D.C.—Last month, in the office of the Director of the FBI, surrounded by various law enforcement dignitaries, the Assistant United States Attorney who prosecuted the World Trade Center case handed me a plaque ''in recognition'' of my ''outstanding contribution to the successful investigation and prosecution of the World Trade Center Bombing Case.'' Instead of the pride of accomplishments on that case, I felt a profound sense of sadness.
Page 19 PREV PAGE TOP OF DOC
Originally designated as a prominent expert witness for the prosecution, I had blown the whistle on FBI misconduct which had threatened the integrity of critical scientific evidence which the government intended to submit to the jury. In the Trade Center case scientific fraud was prevented. However, I was fully aware that the fraud which crept into the World Trade Center Bombing Case had also tainted many other cases handled by the FBI. I knew that innocent people may be sitting in prison because of misconduct within the FBI Laboratory and I knew that the misconduct was still on-going.
As an FBI agent and scientist employed in the Bureau's crime laboratory I first started to raise concerns about misconduct in 1986. Among the problems I witnessed were:
A lack of quality assurance/quality control safeguards designed to protect the integrity of the Bureau's science;
Lack of accreditation and formal education needed to properly practice in the disciplines for which FBI agents were practicing;
Fabrication and misinterpretation of data;
Officials rendering biased and unprofessional opinions regarding forensic data;
Mishandling of evidence within the lab;
Pressure on scientists to change the contents of reports in order to bolster a prosecutor's case;
Page 20 PREV PAGE TOP OF DOC
The failure of the FBI administration to correct these and other problems which had been identified by forensic scientists over a period of many years.
Modern scientist techniques were being caught up, in the words or one of my supervisors to whom I expressed my concerns, by the practice of ''black magic.'' Instead of properly and objectively reviewing evidence, certain individuals in the Lab were engaged, too often, in biasing the outcome of supposedly scientific tests. Scientific data was being (and still is being) manipulated or fabricated in order to ''support'' the prosecutor. The Frankenstein of forensic science is real.
The power of scientific evidence in courts of law cannot be underestimated. Its phantasmic objectivity can blind not only jurors, but also prosecutors, judges and high government officials. Consequently, as science continues to add to the efficiency of law enforcement and continues to provide mechanisms to detect and deter criminal activity, so too must safeguards against the abuse of this technology be instituted.
In his recent article in the New York Times op ed page (August 21, 1994), Paul C. Giannelli correctly identified the biggest problem facing the FBI crime laboratory: ''Unlike clinical laboratories, which perform tests for hospitals and doctors' offices, the nation's crime laboratories are exempt from regulation and external review.'' The article went on to allege that the scientific quality assurance procedures for diagnosing ''strep throat'' require paradoxically ''higher standards than those required of forensic labs'' to put a person on death row.
Page 21 PREV PAGE TOP OF DOC
The problem facing forensic criminal labs, such as the FBI crime lab, can be easily and quickly addressed. First the FBI Lab and other such forensic labs relied upon by the courts, must be opened to outside oversight by credible scientific bodies. Second, mandatory protocols concerning qualifications of examiners, the analyses of evidence, the implementation of objective QA/QC programs and review mechanisms must be implemented and enforced. Finally, without full disclosure and rectification of past misconduct, any future reform effort will fail.
The World Trade Center prosecution could have been a disaster for American law enforcement. If the prosecution had used the tainted forensic report originally presented by the FBI, at a minimum, the convictions would have been subject to reversal. In fact, the entire prosecution was placed in jeopardy by the FBI's original handling of the data, given the risk of jury outrage over the ''black magic'' originally intended to be presented as science.
Given the rise in the use of forensic science in criminal prosecutions, the failure to immediately implement rigid oversight of forensic laboratories poses a threat to the integrity of our justice system and the safety of our streets. Misconduct will lead not only to the innocent being jailed, but the guilty escaping their just punishment. During a recent discussion about this problem with a fellow forensic scientist in the Laboratory, he noted that these problems will not go away until the ''old men'' have retired. As a professional scientist and a professional law enforcement officer I can not wait that long. To quote the present Director of the FBI, Louis Freeh, ''Where there is no rule of law, there is only chaos.''
Frederic Whitehurst earned his Ph.D. in Chemistry from Duke University in 1980 and has worked as an FBI agent for the past twelve years. Since 1987, he has worked in the FBI Crime Lab as a qualified forensic chemist. He has examined evidence in over 900 cases for the FBI and has worked as a scientific expert in numerous high profile prosecutions, including the World Trade Center Bombing case, the murder cases of the Italian Judges Giovanni Falcone and Paulo Borcellino and the Pan An 103 bombing case. He served with U.S. Army combat units in Vietnam from 1969 to 1972.
Page 22 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. Thank you very much, Mr. Whitehurst.
Mr. Kohn, I understand you're here in a supportive role. Although you'll answer questions, you don't have a statement. Is that correct?
Mr. KOHN. That's correct. On any issue related to the matter pending in Federal court, which are the retaliation concerns, I'm more than willing to answer any questions that the committee may have.
[The prepared statement of Mr. Kohn follows:]
[See also Appendix B.]
PREPARED STATEMENT OF STEPHEN M. KOHN, CHAIRPERSON OF THE NATIONAL WHISTLEBLOWER CENTER, AND ATTORNEY FOR DR. FREDERIC WHITEHURST
STEPHEN M. KOHN
Stephen M. Kohn, is the chairperson of the National Whistleblower Center, a partner in the Washington, D.C. law firm of Kohn, Kohn and Colapinto, P.C. and an attorney for Dr. Frederic Whitehurst. Mr. Kohn wrote the first legal treatise on whistleblowing and has successfully litigated many of the nation's landmark whistleblower cases. He has a J.D. from Northeastern University School of Law; an M.A. in Political Science from Brown University; and a B.S. in Social Education from Boston University. Prior to joining the Center, he was the Director for Corporate Litigation and Clinical Director of the Government Accountability Project and a former Clinical Supervisor at the Antioch School of Law. Mr. Kohn is author of numerous books and law review articles on whistleblowing and the rights of political dissidents, including: The Whistleblower Litigation Handbook, (Wiley Legal Publishing, 1990 and 1995 update); The Labor Lawyers Guide to the Rights and Responsibility of Employee Whistleblowers; (Quorum, 1988); Protecting Environmental and Nuclear Whistleblowers; A litigation Manual (NIRS, 1985); Jailed for Peace (Greenwood Press, 1986); American Political Prisoners (Preager, 1994).
Page 23 PREV PAGE TOP OF DOC
Good morning. My name is Stephen M. Kohn, and I am an attorney for Dr. Frederic Whitehurst. Thank you very much for inviting Dr. Frederic Whitehurst to testify before the U.S. House of Representatives Committee on the Judiciary, Subcommittee on Crime. As counsel for Dr. Whitehurst in litigation currently pending in the U.S. District Court for the District of Columbia, we are submitting this testimony on his behalf.
DR. WHITEHURST'S BACKGROUND AND PERFORMANCE
Dr. Whitehurst has been an employee of the Federal Bureau of Investigation (''FBI'') since 1982. Prior to joining the FBI, he volunteered for three active combat tours with the Army during the Vietnam War. He received a number of military honors while serving in Vietnam, including four Bronze Stars and the Army commendation medal. He was also offered, but declined to accept, a Purple Heart. His war record was summarized by his commanding officers in his official military performance rating:
WHITEHURST is a truly outstanding soldier. His knowledge and ability have been demonstrated time and again. . . . He energetically applies himself to all duties and promptly and efficiently completes them. Devoted and personable, he stands out above personnel one and two grades above his.
Exhibit 1, ENLISTED REPORT (September 18, 1971).
In addition to his army commendations, at the age of 17 he was awarded the Navy-Marine Corps Medal for Heroism for risking his life to save a person drowning in a frozen lake. It is our understanding that at the time of the award he was the youngest person ever to obtain this honor. Exhibit 2 (newspaper article appearing in the January 17, 1965 edition of The Virginian-Pilot).
Page 24 PREV PAGE TOP OF DOC
After his honorable discharge from the military, Dr. Whitehurst obtained a B.S. degree in Chemistry in 1974 from East Carolina University and in 1980 received a Ph.D. in Chemistry from Duke University Graduate School. He then performed post-doctoral research in chemistry at Texas A&M University from 1980 to 1982.
In 1981 Dr. Whitehurst applied for a position as a Special Agent with the Federal Bureau of Investigation (FBI). He was subjected to extensive pre-acceptance testing and background screening. He was ''ranked'' 69 out of the ''2152 applicants in the system who were qualified for selection'' as an FBI agent. Butler to Revell (January 27, 1982), excerpt attached as Exhibit 3. In addition, of the 52 ''qualified Science applicants'' he was rated number three. Id. The background screening found him to be ''an outstanding person whose character, reputation, associates and loyalty are unquestionable.'' Id. The FBI noted that he was ''thorough'' and ''would not quit when the chips were down.'' He was praised for having ''high standards'' and for his ''commitment to this country.'' Id.
Dr. Whitehurst accepted an offer of appointment to the New Agents Class convening on February 22, 1982. He successfully completed his training as an FBI agent and was assigned to the field upon graduation from the FBI Academy. On June 6, 1989, Dr. Whitehurst was promoted to a position within the FBI Crime Lab in Washington, D.C. as a Supervisory Special Agent. Until 1996, Dr. Whitehurst worked as a chemist and an explosives bomb residue analyst in the FBI Materials Analyst Unit. His performance reviews and numerous letters of commendation demonstrate that Dr. Whitehurst's performance within the Crime Lab was exceptional. See Exhibit 4 (the cover pages of all of Dr. Whitehurst's official performance reviews from 1989–1995) and Exhibit 5 (a sampling of letters of commendation Dr. Whitehurst received between 1989–95).
Page 25 PREV PAGE TOP OF DOC
Dr. Whitehurst's 1993 performance review accurately reflects his contributions to the FBI during the course of his employment:
Through SSA Whitehurst's exceptional dedication, perseverance and analytical abilities, the Unit has been able to respond to important cases, crime scenes and special events in a timely, very professional manner. . . No other matter of greater importance than the World Trade Center bombing investigation offers a better example of SSA Whitehurst's exceptional ability to get the job done under the most extreme, stressful, high visibility circumstances. . . .
Exhibit 6, Declassified Performance Review of Dr. Whitehurst, executed by two levels of supervision on October 13, 1993.
In this performance review the FBI recognized that Dr. Whitehurst's scientific knowledge in the area of explosives residues was ''unequaled in any other laboratory.'' The FBI properly considered him a ''very valuable asset.'' The review stated as follows:
SSA Whitehurst has acquired a tremendous amount of experience, developed contacts throughout the world in the scientific community, and currently possesses skills in the forensic analyses of explosives and explosives residues which is unequaled in any other laboratory. He is a very valuable asset to the FBI Laboratory.
Exhibit 6, Declassified 1993 Performance Review of Dr. Whitehurst
Page 26 PREV PAGE TOP OF DOC
As set forth in Exhibit 6, Dr. Whitehurst was considered by the FBI to be its most highly qualified bomb residue examiner and explosives expert between 1989 and 1995. As recently as April 17, 1995, just two days before the bombing of the federal building in Oklahoma City, Oklahoma, the FBI again evaluated Dr. Whitehurst and found that his expertise in the ''chemistry of explosives and explosives residues is rivaled by no one else in the [FBI] Laboratory.'' See, Declassified 1995 Performance Review of Dr. Whitehurst (executed by first and second line supervisors on April 10, 1995 and April 17, 1995, respectively).
At the time Dr. Whitehurst joined the Crime Lab, he began raising concerns about scientific misconduct within the FBI. He raised these concerns with his supervision, the FBI Office of Professional Responsibility (''OPR''), the Director of the FBI, the Department of Justice (''DOJ'') Office of Inspector General (''OIG'') and other administrative units within the DOJ and FBI. In spite of severe criticism from the DOJ and FBI for raising ''indications'' of misconduct, Dr. Whitehurst's ''whistleblowing'' did not impact on his actual work performance or his ability to perform exceptionally as a scientist. For example, on December 28, 1995 Dr. Whitehurst received his last performance review as an employee of the Crime Lab. Despite having provided public testimony critical of the FBI's conduct in the World Trade Center case, having been publicly identified as a ''whistleblower'' as a result of publicity surrounding the O.J. Simpson case and having been involuntarily transferred from all duties within the Crime Lab, he was still rated ''exceptional'' or ''superior'' in every performance category.
REPORTING REQUIREMENTS FOR FBI AGENTS
There are a number of regulations and an Executive Order which govern the reporting requirements of FBI agents. Dr. Whitehurst was fully familiar with these requirements and based his reporting activities on these various rules and regulations. These regulations required Dr. Whitehurst to report ''indications'' of ''possible'' misconduct, even if these indications were based on hearsay. In addition, these regulations require all FBI agents to ''over-report'' indications of misconduct. Dr. Whitehurst's reporting activities were fully consistent with these requirements. The FBI and DOJ, which have been highly critical of Dr. Whitehurst's reporting activities, have failed to properly apply the disclosure requirements when reviewing Dr. Whitehurst's conduct. For example, the Inspector General's report did not even cite to these mandatory disclosure requirements, let alone properly apply the regulations.
Page 27 PREV PAGE TOP OF DOC
Executive Order 12731 (''EO''), was signed into law by President George Bush on October 17, 1990, and established standards of conduct for federal employees. Exhibit 7. The Office of Government Ethics (OGE) implemented a formal rule concerning this EO which covered all federal employees, including FBI agents. The U.S. Department of Justice (DOJ) circulated a copy of the EO and the OGE rules to every employee of the DOJ and FBI, including Dr. Whitehurst. Exhibit 7. The importance of complying with EO 12731 was emphasized by the DOJ in a cover memo attached to the material: ''These standards apply to all Department of Justice employees. Please read and retain them for future reference.'' Exhibit 7, Excepts from the U.S. Department of Justice ''This Package Contains Important Ethics Materials, etc.,'' (undated).
Dr. Whitehurst, in compliance with DOJ requirements, read EO 12731 and the explanatory notes which clarified the meaning of the EO. Thereafter, he acted in accordance with these standards of conduct.
In relevant part, EO 12731 states: ''Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.'' Exhibit 7, quoting from Executive Order 12731, Part I Section 101(k)(emphasis added). The EO placed all FBI agents under a mandatory duty to report allegations of misconduct to the ''appropriate authorities.'' Pursuant to this obligation Dr. Whitehurst made disclosures to the FBI OPR, the Director of the FBI, the FBI General Counsel and the DOJ. These reporting activities were required under the mandate of EO 12731.(see footnote 1)
A specific concern was raised over the existence of ''conjecture'' contained in some of the letters Dr. Whitehurst filed with the OIG. This concern is without merit. The explanatory notes interpreting Executive Order 12731, written by the Office of Government Ethics (''OGE'') and included as part of the final rule making governing the Executive Order, clarifies that even ''conjecture'' is protected under the mandates of EO 12731. These comments make explicit what is implicit in the Executive Order—that federal employees had a duty to ''over report'' indications of misconduct and that the appropriate authorities would determine whether allegations were ''spurious.'' The OGE explained this reasoning as follows:
Page 28 PREV PAGE TOP OF DOC
Five agencies suggested changes to §2635.101(b)(11) [the OGE Code of Federal Regulations provision which incorporated the requirements of Executive Order 12731, Part I Section 101(k)], the principle requiring disclosure of fraud, waste, abuse and corruption. The recommendation by two agencies to change ''shall'' to ''should'' was not adopted. Section 2635.101(b)(11) is a verbatim restatement of the principle enunciated in the Executive order and the recommended substitution of precatory for mandatory language would change the principle. The Office of Government Ethics does not share those agencies ''concern that the principle will elicit frivolous reporting. The Government's interest in curbing waste, fraud, abuse and corruption is better served by over reporting than by under reporting, and the authorities to whom such disclosure are to be made can best determine the merits of allegations and ensure that harm does not result from any that are spurious.
Exhibit 7, quoting from Federal Register p. 35007 (emphasis added).
In addition, the OGE warned that agencies could not require employees to apply complex legal principles'' when determining whether to report potential ''improprieties.'' Id. Thus Dr. Whitehurst, who read these regulations prior to filing any allegations with the Office of Inspector General, acted pursuant to mandatory authority when he reported potential violations of complex legal matters such as improper withholding of Brady information, potential perjury, and improper scientific procedures.
Not only was Dr. Whitehurst required to report his concerns pursuant to EO 12731, the OGE regulations, and the DOJ, the FBI's own internal procedures regarding employee conduct required that Dr. Whitehurst report every ''indication'' of misconduct, whether proven or not, to the appropriate authorities. The FBI Manual Administrative Manual of Operating Procedure, Section 1–22, states as follows:
Page 29 PREV PAGE TOP OF DOC
Each employee has the responsibility to report promptly, any indication of possible exploitation or misuse of Bureau resources; information as to violations of law, rules or regulations, personal misconduct. . . .
Exhibit 8, (emphasis added).
Under the FBI MAOP requirements, Dr. Whitehurst had a ''responsibility'' to ''promptly'' report each and every ''indication'' of a ''possible'' violation of law. This is an extremely broad disclosure requirement consistent with EO 12731. Dr. Whitehurst's reporting activities were consistent with this regulation. The importance of aggressively supporting FBI employees who make disclosures under FBI MAOP rule Section 1–22 cannot be underestimated. In this case, many of Dr. Whitehurst's most important disclosures were based upon hearsay. For example, his allegation over false testimony in the Alcee Hastings case was based on second hand information. In order to perform his duty under the EO and FBI/DOJ requirements, Dr. Whitehurst was obligated to report unproven ''indications'' of misconduct to the appropriate authorities.
The FBI and DOJ's concern that Dr. Whitehurst's reporting activities somehow was wrong has no support under the law and controlling regulations. Indeed, it was the responsibility of the FBI and DOJ to actively encourage Dr. Whitehurst's reporting activities and to insure that these reports were properly investigated in order to determine which ''indications'' of ''possible'' misconduct were accurate.
THE FAILURE OF THE ATTORNEY GENERAL AND FBI TO IMPLEMENT THE WHISTLEBLOWER PROTECTION ACT OF 1989 HARM DR. WHITEHURST AND ALL FBI EMPLOYEES
Page 30 PREV PAGE TOP OF DOC
Shortly before Dr. Whitehurst made his first disclosure of misconduct within the FBI crime lab to a non-FBI employee, Congress passed the Whistleblower Protection Act of 1989 (''WPA''). In that law a special provision was created to assist FBI whistleblowers. See, 5 U.S.C. §2303 and the two statutory provisions referenced in that section, 5 U.S.C. §1214 and 1221, attached hereto as Exhibits 9, 10 and 11. This required the Attorney General to implement protections for FBI whistleblowers. 5 U.S.C. §2303(b). Moreover, it required the President of the United States to insure that regulations protecting FBI whistleblowers were created which were, at a minimum, ''consistent'' with the protections afforded other federal civil servants. 5 U.S.C. §2303(c).
The President of the United States, the Attorney General, and the FBI flagrantly ignored this law. Between 1989 and March of 1997, no regulation or rule was implemented by the DOJ, the FBI, or the President protecting FBI whistleblowers in the manner mandated under the Whistleblower Protection Act of 1989.
A brief history of the WPA of 1989 is necessary in order to understand how mandatory whistleblower protections within the FBI were never implemented. In 1978, Congress passed the Civil Service Reform Act (''CSRA'') of 1978, Pub.L. No. 95–454, which contained a very weak and ineffective section purportedly protecting federal employee whistleblowers. The federal government (including the DOJ and FBI) issued very weak whistleblower protection rules. See, e.g., Vol. 41 Federal Register 27754, codified as 28 C.F.R. §0.39 et seq. (Subpart G–2-Office of Professional Responsibility).
The CSRA of 1978 (and the DOJ regulations implementing these rules) did not provide employee whistleblowers a private right of action to adjudicate the legality of adverse actions, did not provide for monetary damages or attorney fees, and did not provide any time constraints for resolving disputes. Within the FBI, protection of whistleblowers was purely discretionary. Even if the Attorney General deemed protection appropriate, the whistleblower's only remedy was the granting of a mere ''stay'' of an adverse personnel action if the ''facts and circumstances involved'' justified such a stay. 29 C.F.R. §0.39(c).
Page 31 PREV PAGE TOP OF DOC
In 1989, Congress recognized that the CSRA of 1978 did not adequately protect whistleblowers, and became concerned about the ''dismal effectiveness'' of the 1978 CSRA. Marano v. Department of Justice, 2 F.3d 1137, 1140 (Fed Cir. 1993), citing 135 Cong. Rec. 564 (1989)(remarks of Sen. Levin). Congress enacted the Whistleblower Protection Act of 1989 to amend the serious flaws in the CSRA of 1978 and to ''send a strong, clear signal to whistleblowers that Congress intends that they be protected from any retaliation related to their whistleblowing.'' 135 Cong.Rec. 5033 (1989)(Explanatory Statement of S. 20).
The WPA of 1989 significantly enhanced both the substantive and procedural remedies afforded to whistleblowers under the CSRA. Congress enacted a number of significant reforms, including the following:
Whistleblowers would have a private right of action;
Whistleblowers would be afforded due process in this private right of action, including the right to a discovery and an on-the-record hearing before an impartial administrative judge;
All of the burdens of proof necessary to prove an unlawful reprisal were lowered;
The government's burden of proof to rebut that an unlawful reprisal was taken was raised to the ''clear and convincing'' evidence standard;
Damages afforded whistleblowers were expanded, and attorney fees and costs were recoverable.
Page 32 PREV PAGE TOP OF DOC
See, 5 U.S.C. §1214 and 1221.
The U.S. Court of Appeals for the Federal Circuit summarized the policies behind the WPA of 1989:
The policy goal behind the WPA was to encourage government personnel to blow the whistle on wasteful, corrupt or illegal government practices without fearing retaliatory action. . . . Such encouragement is guaranteed by the substantially reduced burden that must be carried by the whistleblower to earn the WPA's protection. . . . A principal office of the WPA is to eliminate that disincentive and freely encourage employees to disclose what is wrong with our government.
Marano v. Department of Justice, 2 F.3d 1137, 1142 (Fed Cir. 1993).
The legislative history of the WPA of 1989 demonstrates that Congress was aware of the chilling effect on whistleblowers caused, in part, by the lack of protections afforded employees under the CSRA of 1978. Based on a number of studies, it became ''clear'' to Congress that the CSRA of 1978 ''did not go far enough in its protection for whistleblowers. This included two surveys relied upon by Congress which showed that'' an astonishing 70 percent of Federal employees with knowledge of fraud, waste, and abuse did not report it ''to the proper authorities. In addition, the surveys found that the number of employees who'' did not report government wrongdoing because of fear of reprisal ''actually'' rose dramatically ''during the time period in which the CSRA of 1978 was in place. See, e.g., Vol. 135 Congressional Record at 4517–18 (March 16, 1989) (Remarks of Sen. Byrd)(''In 1978, as a part of the Civil Service Reform Act of 1978, provisions were included to protect Federal whistleblowers. The need to strengthen these provisions were clearly demonstrated, however, by surveys conducted in 1980 and 1983 . . .'')(emphasis added); Id. at 4519 (Remarks of Sen. Metzenbaum)(''Under the current law, Federal employees increasingly are afraid to come forward with information about Government fraud.'')(emphasis added).
Page 33 PREV PAGE TOP OF DOC
Congress recognized that, without the added protections afforded in the WPA of 1989 the ''vast majority'' of employees would be intimidated and not raise concerns:
We need stronger protections for whistleblowers. Under the current system, the vast majority of employees choose not to disclose the wrongdoing they see. They are afraid of reprisals. . . .
Id., p. 566 (Remarks of Sen. Grassley).
This is precisely the problem which Dr. Whitehurst and other FBI employees who witnessed the misconduct within the crime lab faced between 1989 and 1997. The very fear and intimidation Congress identified as existing within the federal work force under the pre-WPA conditions still exists within the FBI today.
When Congress passed the WPA of 1989 it determined that FBI employees would be subject to its protection. For example, Congress amended the statute covering FBI employees, 5 U.S.C. 2303, to expressly provide that important reforms included in the WPA of 1989 (i.e., 5 U.S.C. §1214 and 1221) also would be applicable to FBI employees. Congress explicitly mandated that the rights of FBI employees would be protected ''consistent with the applicable provisions of'' 5 U.S.C. §1214 and 1221. See, 5 U.S.C. 2303(c).
However, during the pendency of Dr. Whitehurst's concerns with the FBI and DOJ, the President, FBI, and Department of Justice never implemented this law. Not one regulation was placed into effect codifying the new laws for FBI agents and nothing was done to ensure that FBI whistleblower protection was consistent with the new standards set forth in the WPA of 1989.
Page 34 PREV PAGE TOP OF DOC
Dr. Whitehurst was forced to pursue his ''whistleblower'' case without any of the protections Congress had given him. Instead of due process, he faced numerous investigations and attacks on himself and his reputation. Beginning in 1989, when he was suspended and placed on probation merely for disclosing truthful information about contamination within the crime lab, Dr. Whitehurst faced an unending campaign to terminate him from employment within the FBI and to discredit his scientific concerns. These attacks were outlined in a letter to President Clinton filed on January 29, 1996. Exhibit 12, Letter to President Clinton and request for an Individual Right of Action under the WPA.
Incredibly, the President, FBI, and DOJ simply refused to implement the mandated requirements and continued to utilize procedures which violated numerous important legal requirements when reviewing Dr. Whitehurst's allegations of retaliation. In fact, all of the procedures utilized by the DOJ IG in investigating Dr. Whitehurst's retaliation allegations were improper and did not follow the mandates of the 1989 WPA. Not only was Dr. Whitehurst denied all due process rights guaranteed under the WPA, the IG illegally commingled the investigation into Dr. Whitehurst's allegations of misconduct within the crime lab with its investigation into the unlawful retaliation and published the results of the retaliation investigation in a manner completely inconsistent with the WPA. See, e.g., Exhibit 10 (which prohibits the use of retaliation findings in administrative or civil proceedings without the express consent of the whistleblower). The DOJ explicitly denied Dr. Whitehurst's numerous requests that he be permitted to have his retaliation concerns adjudicated in a manner consistent with the WPA of 1989.
Some of the problems caused by the DOJ's denial of due process and WPA protection to Dr. Whitehurst are summarized as follows:
Page 35 PREV PAGE TOP OF DOC
1. Denial of right to counsel. Both the FBI and DOJ ordered Dr. Whitehurst not to discuss certain matters with his own private attorneys. This unconstitutional interference with the right to counsel prevented Dr. Whitehurst from properly addressing many of the issues raised in the draft and final IG report;
2. Denial of basic due process. In order to present his concerns before the IG, Dr. Whitehurst requested access to FBI documentation which would have verified or otherwise corroborated his allegations. This request was denied. In addition, Dr. Whitehurst requested the right to prepare formal testimony to the IG, instead of relying merely on informal letters sent to an investigator. This request was denied and Dr. Whitehurst never had the opportunity to be called by his attorney and questioned under oath before the IG experts about any matter in which he had raised a concern.
3. The FBI and DOJ ignored Dr. Whitehurst's need to obtain documents in order to prove his concerns. In 1993 and 1995, Dr. Whitehurst filed a number of Freedom of Information Act requests in order to obtain these materials. The FBI illegally violated the Freedom of Information Act and prevented Dr. Whitehurst from obtaining the needed documents. After being forced to file a suit to obtain the documents, the Court ordered the production of the requested material. However, the FBI did not release any of the material until after the IG issued its draft report and none of the over 10,000 pages in released documents have been properly presented by Dr. Whitehurst to the IG. A cursory review of these materials demonstrates how important the FBI documents would have been in any fair or just review of Dr. Whitehurst's concerns. See, e.g. Exhibit 13 (which documents the abuse of the pre-publication clearance procedures); Exhibit 14 (which documents that the FBI was aware of the validity of many of the types of issues raised by Dr. Whitehurst); Exhibit 15 (which demonstrates that the FBI was fully aware of the validity of Dr. Whitehurst's concerns about the evidence introduced in a major bombing case, yet both the FBI and apparently the U.S. Attorneys office failed to provide this information to the defendant); Exhibit 16 (which demonstrates that the FBI was fully aware of a major contamination issue within the lab (i.e. the ''walk-through area in the Materials Analysis Unit), yet took no action to correct this matter); and Exhibit 17 (which documented that scientific reports within the crime lab had been intentionally and materially altered in violation of lab policy).
Page 36 PREV PAGE TOP OF DOC
4. One of the most disturbing revelations contained in FBI-released documents was correspondence between the FBI and DOJ IG. Exhibit 18. Letter from FBI OPR to DOJ IG. They reveal a high level of cooperation between the FBI and IG. Instead of the independence Dr. Whitehurst had expected from the IG, the IG and FBI had entered into a secret deal, in violation of their own operating procedures, to allow the FBI full access to all of Dr. Whitehurst's letters, full access to the interviews of FBI employees and a co-equal role in writing the final IG report (although only the IG's name would be on the report). These agreements were reached behind Dr. Whitehurst's back and, had they been known, Dr. Whitehurst would have ceased cooperating with the IG. Only the intense public pressure resulting from the public attention concerning the crime lab generated by the public disclosure of Dr. Whitehurst's allegations during the O.J. Simpson matter forced the IG to back off from the agreements with the FBI. However, the complete lack of written procedures and the failure to institute regulations required under the WPA allowed this collusion to occur.
5. The failure to discipline FBI employees in the crime lab for engaging in racist conduct. Exhibit 19, FBI OPR documentation confirming Dr. Whitehurst's allegation regarding racist conduct exhibited by personnel. No disciplinary action was taken to correct the conduct identified in these documents.
6. The failure to undertake the review requested by Dr. Whitehurst's counsel which would have resulted in the identification and potential correction of all of the problems identified by the DOJ IG back in 1994. Exhibit 20, Kohn to Shapiro, Feb. 7, 1994.
PRESIDENT CLINTON'S APRIL 14TH ORDER
Page 37 PREV PAGE TOP OF DOC
As previously stated, on January 29, 1996, Dr. Whitehurst, through counsel, formally requested that the President implement the WPA of 1989 for all FBI whistleblowers and filed a ''private right of action'' on behalf of Dr. Whitehurst. The President and Attorney General initially ignored this formal request. When pressed, the Department of Justice denied Dr. Whitehurst the right to pursue his rights under the WPA of 1989 and stated that the IG investigation was the only remedy he would be afforded. Thereafter, on March 26, 1996, Dr. Whitehurst filed a complaint for injunctive and mandamus relief against the President, Attorney General, and FBI requesting that the WPA remedies be made available to Dr. Whitehurst and all other similarly situated FBI employees.
The government continued to vigorously defend its failure to implement the WPA of 1989. Dr. Whitehurst pressed on and filed a motion for preliminary injunction concerning the FBI and DOJ's failure to implement the WPA of 1989 for FBI employees. Finally, the government conceded that it must obey the law. On April 14, 1997 President Clinton issued a ''MEMORANDUM FOR THE ATTORNEY GENERAL.'' Exhibit 21. This Memorandum ''direct(ed)'' the Attorney General to ''establish appropriate processes'' to implement the WPA of 1989 on behalf of all FBI employees. This historic directive was a necessary first step in establishing the legal protections mandated by Congress over eight years ago. The crucial question facing the DOJ and FBI is the manner in which the Attorney General implements the WPA of 1989. Congressional oversight is needed in order to insure that the ''processes'' established by the Attorney General to protect FBI whistleblowers is both fully consistent with the WPA and provides realistic protections to FBI employees.
RECOMMENDATIONS
Page 38 PREV PAGE TOP OF DOC
In order to encourage FBI employees to report possible indications of misconduct within the FBI, it is imperative that the procedure established by the Attorney General to implement the WPA of 1989 is both fully consistent with that law and fully consistent with the goal of properly protecting FBI employee-whistleblowers. Without proper protections, misconduct within the FBI will never be uncovered and corrected. Congress must insure that the Attorney General's regulations implementing the WPA contain the following features which are either required under the law or are necessary in order to fulfill the Congressional intent behind the law:
1. The definition of protected activity must remain broad and consistent with President Bush's Executive Order and the FBI MOP. In addition, reporting misconduct to Congress and/or the DOJ IG must also be fully protected. Likewise, because misconduct will often implicate disclosure requirements of prosecutors as required under the U.S. Constitution (e.g., Brady v. Maryland), FBI employees who disclose potential Brady information in the course of official state or federal court proceedings must also be fully protected.
2. The body which adjudicates FBI whistleblower cases must be fully independent of the DOJ and FBI. It must have a sensitivity to the unique problems which face whistleblowers and an expertise in these matters.
3. The due process afforded FBI whistleblowers must be ''consistent'' with the WPA. The ex parte and arbitrary procedures currently employed by the DOJ and FBI must be completely abandoned.
4. The regulations initially drafted by the Attorney General must be submitted for public comment and submitted to the federal court currently reviewing this matter for final approval.
Page 39 PREV PAGE TOP OF DOC
Respectfully submitted,
| Stephen M. Kohn, |
| Chairman, National Whistleblower Center and |
| Private Attorney for Dr. Frederic Whitehurst |
Dated: May 12, 1997
LIST OF EXHIBITS TO THE Testimony of Stephen M. Kohn
Exhibit 1—September, 1971 Performance Review of Dr. Frederic Whitehurst.
Exhibit 2—Sunday, January 17, 1965 Newspaper Article.
Exhibit 3—January 27, 1982 Memorandum from Butler to Revell concerning White- hurst background investigation.
Exhibit 4—Excerpts of FBI Performance Reviews of Dr. Frederic Whitehurst for the years 1989 through 1996.
Exhibit 5—FBI Commendations to Dr. Frederic Whitehurst for the years 1989 through 1995.
Exhibit 6—1993 FBI Performance Review of Dr. Frederic Whitehurst.
Page 40 PREV PAGE TOP OF DOC
Exhibit 7—The Executive Order on Conduct and the Standards of Conduct; Federal Register/Vol. 55, No. 203/Friday, October 19, 1990/Presidential Docu- ments.
Exhibit 8—Manual of Administrative Operations and Procedures; Part I, Section 1. ACTIVITIES AND STANDARDS OF CONDUCT.
Exhibit 9—5 U.S.C. §2303. Prohibited personnel practices in the Federal Bureau of Investigation.
Exhibit 10—5 U.S.C. §1214. Investigation of prohibited personnel practices; correc- tive action.
Exhibit 11—5 U.S.C. §1221. Individual right of action in certain reprisal cases.
Exhibit 12—January 29, 1996 letter to President William J. Clinton from Stephen M. Kohn and Individual Right of Action Appeal of Dr. Frederic White- hurst.
Exhibit 13—Prepublication clearance material regarding ''Black Magic in the Bureau''.
Exhibit 14—March 24, 1991, Memorandum to Mr. Hicks from ASCLD Study Com- mittee regarding ASCLD Study Laboratory Division.
Page 41 PREV PAGE TOP OF DOC
Exhibit 15—July 6, 1994, Memorandum to Mr. Kearney from FBI Management re- garding Bombing of Avianca Flight 203, 11127/89.
Exhibit 16—May 29, 1992 Memorandum to Mr. Hicks from K. W. Nimmich regard- ing Internal ASCLD Lab Inspection.
Exhibit 17—January 13, 1995 Memorandum to Mr. Kearney regarding Alterations and Changes in Auxiliary Examiner Reports (AE) by Principal Exam- iner Without Approval of AE.
Exhibit 18—June 15, 1995 letter to T.J. Bondurant from D.V. Ries regarding Inves- tigation Concerning FBI Laboratory.
Exhibit 19—FBI OPR documentation regarding racial remarks in crime lab.
Exhibit 20—February 7, 1994 letter to Howard M. Shapiro from Stephen M. Kohn regarding FBI SSA Frederick Whitehurst.
Page 42 PREV PAGE TOP OF DOC
Exhibit 21—April 14, 1997 Memorandum For The Attorney General From William J. Clinton.
INSERT OFFSET RING FOLIOS 1 TO 117 HERE
Mr. MCCOLLUM. All right; fair enough.
Mr. Alcorn, welcome, and you may give your testimony at this point. Summarize it in any way you wish, and, again, your written testimony will be submitted in its entirety into the record, without objection.
STATEMENT OF DANIEL S. ALCORN, COUNSEL, ON BEHALF OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
Mr. ALCORN. All right; thank you very much, Mr. Chairman, and to the other members of the subcommittee.
My name is Dan Alcorn. I represent the National Association of Criminal Defense Lawyers, which is a group of over 9,000 lawyers, both private lawyers, public defenders, judges and law professors who are concerned about the administration of criminal justice in the United States, and the organization is dedicated to see that we have a fair administration of criminal justice in the United States.
Our organization brought the Freedom of Information lawsuit which resulted in this report being released publicly on April 15. We felt it was very important that the Inspector General's report be released to the public. We are pursuing additional materials in our Freedom of Information suit, which we expect will take an additional period of months, but we will be pursuing additional materials that relate to the investigation.
Page 43 PREV PAGE TOP OF DOC
The concern of the National Association of Criminal Defense Lawyers is what the Inspector General's report means to the administration of criminal justice in this country. One thing that we have to point out is that there have been three prior investigations of Mr. Whitehurst's allegations within the FBI before the Inspector General came along and issued the report that has the very troubling findings that it has.
And I think one of the key things that I would urge on this subcommittee is to look into why, internally, three prior reviews of this situation did not come to the conclusions which the Inspector General did when he made his commitment to make a full investigation of this. We think that this raises issues about the ability within the FBI to police internally and to review their actions internally, and we think this is a very important governmental issue.
We see it in the courtrooms of the country every day, but at this level of the U.S. Congress, we think it's an issue that you need to grapple with, about how do we in a national law enforcement organization, how do we have effective self-policing? How do we get the organization to perform in the way that we want as a seeker of truth and a seeker of justice?
We are very concerned as defense lawyers that the Department of Justice has put out a report, which we provided to the committee the copies that we had. It's a 1996 Department of Justice report called, ''Convicted by Juries and Exonerated by Science,'' and what it is is a case study of 28 cases that were found around the United States in which individuals had gone through trial—all but one had gone through trial; one pleaded guilty—had gone through trial by jury, had been convicted. Later, DNA testing, which wasn't available at the time of their trials, indicated that they were innocent of the crime of which they were convicted, and they were all released from prison and had their convictions overturned.
Page 44 PREV PAGE TOP OF DOC
This has all occurred within the last 10 years; it was the 10-year period immediately before us. These 28 individuals served a total of 197 years in prison. You know, our country has been around a little longer than that, but innocent individuals served 197 years combined total in the prisons of the United States.
Now, we think that this describes a kind of problem that exists in the system that the committee needs to be concerned about. As we engage in crime fighting, as we engage in increasing the budgets of these organizations we also need to keep as our guide star justice and truth in our system, and to have innocent people serving 197 years in prison is something that we simply should not tolerate as we go about the important work of crime-fighting.
Another aspect of this report that was very interesting was that the conclusion was that scientific testimony, scientific evidence other than DNA evidence was not really very reliable in these cases about pointing to guilt or innocence of these individuals.
The other scientific evidence, such as hair sample testing and the other types of testing that were performed, did not in any case lead to the innocence of the individual, and, in fact, most of the cases helped to inculpate them; in other words, helped to make them appear more guilty, although in none of the 28 cases did the other scientific testimony actually point specifically and individually to that person. But the other scientific evidence was used to say it narrows the field of this individual.
And one of the policy conclusions of the Department of Justice is that we have to be careful in our use of scientific evidence. As a result of these cases, it's clear that we need to be careful in the way we use scientific evidence in these trials, because we now have cases in which the science did not help us keep innocent people from going to prison.
Page 45 PREV PAGE TOP OF DOC
In concluding, our concern is the following: The current management of the FBI has overseen the problems that have developed to the point today. The Inspector General made recommendations for changes. The recommendations went to current FBI management, and they have said that they will try to implement the changes that were recommended.
But here's the problem for the Congress, I think. How can you have certainty that the management that supervised the problems and allowed them to fester and develop, and conducted three reviews that didn't find the problems, how can you have certainty that that management is going to be able to implement the appropriate reforms in order to get us to the point where we want to be, where we have a properly functioning criminal justice system?
And I think this is terribly important, because I think that what Dr. Whitehurst describes and what is described in the Inspector General's report is a problem of management—systemic management—within the Federal Bureau of Investigation that has permitted these situations to develop and to continue.
And so we call—our organization feels that the Congress has an extremely important role here, in its oversight role and in its appropriations role, that if an executive agency, if there are problems identified and they need to be corrected, and they involve fundamental issues of our values as Americans, that Congress should become very involved in oversight and should use its role as a co-equal branch of the Government to see that the executive branch does begin to perform in the way that we want them to perform.
And we think that the concept of checks and balances and co-equal branches of Government is very applicable here in this situation, that the Congress can identify problems that exist in this executive agency. We think that Congress should take up the responsibility of continuing oversight and see that these problems are actually corrected in the real world, rather than to have some press releases put out that changes be made, but not have them actually happen. We think that today would be the beginning of your oversight to see that changes are implemented.
Page 46 PREV PAGE TOP OF DOC
Finally, we would call into question whether, in fact, a scientific laboratory should be within the Federal Bureau of Investigation at all. And we think that you should put on the agenda for consideration whether it's really reasonable to expect that a law enforcement organization such as the FBI is the appropriate place to have an objective scientific laboratory, and that as part of considering these issues that exist of whether proper management can be applied within the FBI to the laboratory and whether that executive branch agency is going to be able to clean up this problem, you may want to consider whether the laboratory would become an independent organization and would have a governance which would be more likely to provide the kind of objective results that we're talking about.
Some of the ideas that have come to us have been that either judges or lawyers or other public officials might serve on a board of such a national crime laboratory, whose entire mission and focus would be one of seeking objective results in cases, seeking truth in the science of cases.
And so in conclusion, let me just say that we hope that in your deliberations that you will not ignore that the management at the FBI, which has been in place for some years, has, in fact, supervised the conduct which is at issue here today, and that we hope that the Congress will not, in its oversight, ignore the problems that that evidences and that the Congress will take seriously its oversight responsibility to see that reforms are actually implemented in the real world, on the ground, in this crime laboratory.
Thank you very much, Mr. Chairman.
Page 47 PREV PAGE TOP OF DOC
[The prepared statement of Mr. Alcorn follows:]
PREPARED STATEMENT OF DAN S. ALCORN, COUNSEL, ON BEHALF OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
Mr. Chairman and Other Distinguished Members of the United States House Judiciary Subcommittee on Crime:
Thank you for affording me this opportunity to speak on behalf of my client, the National Association of Criminal Defense Lawyers (NACDL), a non-profit, non-partisan, professional bar association with 9,000 direct members, and 78 state and local affiliates with another 25,000 members, including private criminal defense lawyers, public defenders, judges and law professors committed to preserving fairness within America's criminal justice system.
We commend you, Mr. Chairman, for convening these important oversight hearings into the recent revelations by the report of the Department of Justice (DOJ) Inspector General (IG) into the liberty-threatening misconduct and mishaps of the forensic laboratory of the Federal Bureau of Investigation (FBI). The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (DOJ April 1997) (''Lab Report''). We speak from a non-governmental perspective about the importance of restoring integrity to, and citizen confidence in the FBI lab.
I. INTRODUCTION—NEED FOR CONTINUATION AND EXPANSION OF SUBCOMMITTEE'S OVERSIGHT
Whether you like him or not, whether you believe everything he says or not, one thing is undeniable: were it not for the courage and determination of a ''good cop,'' FBI Supervisory Special Agent Frederic Whitehurst, Ph.D., the public never would have been apprised of ongoing, systemic wrongdoing in the FBI lab. But for his perseverance, no DOJ Inspector General would ever have been assigned, and no investigation and no report would have been undertaken. The report documents an absence of integrity within the lab—an integrity upon which many American lives depend.(see footnote 2)
Page 48 PREV PAGE TOP OF DOC
Keep in mind, the IG's inquiry, by his own admission, was a very limited one. In fact, only 3 lab units out of 23 were investigated. His report raises this obvious question: if so much is wrong with the few units dealing with primarily high-profile cases, how much more is awry with the rest of the lab?
Also keep in mind, the American public still does not even have the underlying notes, interviews, and original source material from the IG's very limited investigation. What patterns of prejudgment, lack of scientific method, and outright bias might these show? American citizens have a right to know.
It is the American people, and the media on behalf of the public, who need to have access to all of this information about the lab, and not just the undoubtedly sanitized, thumbnail sketch that is found in the IG's nonetheless disturbing report that was released. The public has a right to know this information. If the IG's report tells us anything, it teaches that we simply can't let the government police itself, nor keep this information to itself. At the core, what is involved here is lab misconduct that has undoubtedly resulted in some number of innocent Americans being unjustly convicted and losing their lives or liberty. And, conversely, some number of guilty people are being left to roam America's streets as a result of the lab's faulty analyses pointing the government's finger of guilt at the wrong people.(see footnote 3)
There is an overriding public interest in this Subcommittee undertaking not just this worthy hearing but indeed, continued and expanded oversight hearings into all of the units of the FBI lab. The FBI lab has long been regarded as the preeminent lab within government investigatory agencies. If this much has been voluntarily disclosed by the DOJ as being wrong with but 3 of 23 units in the once-highly-regarded FBI lab, not only does the public need to know what may be wrong with the other FBI units, but also what corrective measures are suggested within the labs of other federal law enforcement agencies—most particularly, the Drug Enforcement Agency (DEA), Bureau of Customs, the Immigration and Naturalization Service (INS), and the Bureau of Alcohol, Tobacco and Firearms (BATF).
Page 49 PREV PAGE TOP OF DOC
Mr. Chairman and other distinguished members of the Subcommittee, we urge you to not only persist in these oversight hearings into the other areas of the FBI lab left unexamined by the IG, but also, to expand your oversight hearings into the similar work affecting so many American lives and citizen liberties conducted each and every day by the many other federal enforcement agencies.
My client, the National Association of Criminal Defense Lawyers, is interested in America having a rational and fair criminal justice policy. Our goal in this instance is to help make the FBI lab (and the labs of all other federal investigatory agencies) a reliable center for forensic excellence. We want to help restore integrity to the FBI lab. That is our goal. That is why we filed a lawsuit in February to overcome the institutional reluctance on the part of the Department of Justice to release to the American people the IG report.(see footnote 4)
We are more than willing to participate, because justice is not served by a ''conviction at any cost'' mentality among government actors—least of all, among the forensic scientists who are supposed to give us ''just the facts,'' just science, and not predisposition, bias, or embellishment.(see footnote 5) We are more than willing to help because we are interested in a rational criminal justice system for America—one Americans deserve and the one envisioned by the Founders of our nation. A rational and humane criminal justice policy promotes fairness for all; due process for even the least among us who may be accused of wrongdoing; compassion for witnesses and victims of crime; and just punishment for the guilty. Such a policy respects cherished civil rights and liberties so fundamental to our democracy.
Page 50 PREV PAGE TOP OF DOC
Whatever the disagreements among policymakers about the precise contours of a rational and humane criminal justice policy, this much is axiomatic: There can be no rational criminal justice policy when the scientific and forensic ''facts'' upon which the government's criminal cases are based are themselves irrationally derived, or even contrived. Science must be neutral and detached. Bad science by the FBI lab strikes at the very heart of our society's highest aspirations for fairness within America's criminal justice system.
We believe that if the FBI lab is again to become the center for excellence in forensic science that it once had the reputation for being, vigilant, external oversight is necessary. Forensic science is neither pro-prosecution nor pro-defense. It is a search for facts—facts which will help a judge or jury determine the truth. When institutional pressures or bias drive forensic examiners to produce only reports which corroborate the prosecution's ''theory of the case,'' the whole of America's criminal justice process is undermined.
II. WHAT THE INSPECTOR GENERAL'S REPORT SAYS AND DOES NOT SAY
For too long, the FBI laboratory has operated beyond oversight and beyond any meaningful external review and accountability. The recent IG report just scratches the surface, yet demonstrably and saliently points up the need for real reform. Although the IG was quite limited in the areas he was allowed to investigate and he rejected some of Dr. Whitehurst's assertions, he still calls his findings ''deeply troubl[ing].''(see footnote 6)
Page 51 PREV PAGE TOP OF DOC
As United States District Court Judge Gladys Kessler has found, misconduct and mishaps in the FBI lab ''call into question the scientific integrity of the FBI crime lab and the thousands of prosecutions that rely on evidence it has processed.''(see footnote 7) Out of these thousands of cases, some unknown number of defendants have been victimized by unfair trials tainted by shoddy lab work and exaggerated and biased testimony by FBI lab examiners. There is a substantial probability that some of the lab's subjects are actually innocent of the crimes for which they were convicted. Moreover, innocent people behind bars or on death row means that there are guilty people left unapprehended and walking free among us. This injustice cannot be tolerated.
Today, public confidence in the lab is at an ebb. Newspapers and broadcast media of all political stripes across the country have editorialized on the need to impose uncompromising, external oversight over the lab.
For example, The New York Times has called the Inspector General's report a ''damning indictment'' which ''essentially vindicates long-ignored complaints by Frederic Whitehurst.''(see footnote 8) The Washington Post says the lab's myriad troubles ''are the kinds of problems that won't be corrected by an administrative reorganization. They go to the culture of the institution, the . . . bias of the examiners toward the prosecution and the disinclination of supervisors to hold personnel to a high, truly scientific standard.''(see footnote 9) The Arizona Republic suggests: ''Perhaps the ultimate solution is the transfer of the laboratory to an independent agency, one that can objectively administer the science and even serve as an educational base for state police crime labs.''(see footnote 10) And, calling the lab's bias toward the prosecution ''outrageous,'' USA Today condemned the lab, noting that the Inspector General's praise for FBI's meager efforts to improve the laboratory is ''like praising the Good Humor man for selling ice cream.'' The paper went on to remind its readers that ''[t]he job of the lab isn't to pursue convictions but to find the truth. And it fell down on that job.''(see footnote 11)
Page 52 PREV PAGE TOP OF DOC
The Inspector General stresses that he only looked at 3 out of the lab's 23 lab units. Yet the types of problems he found suggest a rampant ''culture'' of substandard work and deliberate deception, where poorly-trained FBI agents would testify wrapped in a mantle of near-infallibility. Among the IG's most troubling findings are the following types of folly and wrongdoing.(see footnote 12)
Scientifically flawed and inaccurate testimony.
Testimony beyond the examiner's expertise.
Outright fabrication of test results.
Tampering with lab reports.
Inadequate or nonexistent record-keeping and test result documentation.
Unqualified examiners, with little training and little or no formal education in their assigned areas of expertise.
Failure by management to resolve serious and credible allegations of incompetence.
Already we know that FBI Lab incompetence and bias have forced prosecutors to forgo use of what could have been important evidence in a number of high-profile cases. For example, Robert Cleary, the lead prosecutor in United States v. Kaczynski, the so-called ''Unabomb case,'' has been forced to repudiate work done by the lab in that case and has asked for new explosive experts from outside the FBI to re-examine the evidence.(see footnote 13) What has been identified as incredibly shoddy work performed by FBI examiner David R. Williams and his supervisor J. Thomas Thurman has forced prosecutors in the Oklahoma City cases to do the same.(see footnote 14)
Page 53 PREV PAGE TOP OF DOC
More disturbing still, the IG's investigation indicates that misconduct and incompetent testimony occurs not just in high-profile cases, where there is bound to be the most pressure from prosecutors. The lab's culture of deception is apparently so pervasive that even the ''little cases'' are corrupted, involving the far greater number of ordinary Americans. For example, FBI examiner Roger Martz, of the FBI's Chemistry and Toxicology Unit, testified under oath in State v. Trepal that Coca Cola found in the murder victim's home had been laced with the rat poison thallium nitrate, and that a quantity of thallium nitrate had been found in defendant George Trepal's garage. But the IG's investigation proved that Martz did not perform the tests needed to conclude the soft drink contained thallium nitrate.(see footnote 15) Such misconduct in a state prosecution, where there is no arguable federal interest, raises a number of red flags indicating the lab needs vigilant congressional or other significant and neutral oversight, as well as overhauling from top to bottom.
Following are more specific known examples documented by the IG of the systematic damage wreaked by the lab over the years—
Carelessness in Scientific Investigation
In 1992 and 1995, Materials Analysis Unit Chief James Corby was directed to review all cases in which Terry Rudolph, Frederic Whitehurst's predecessor, worked as an examiner. The first review covered approximately 200 cases and found significant flaws, such as Rudolph's failing to follow his own explosives residue protocol, to form conclusions from valid scientific bases, and to conduct necessary tests. In 1995, Corby found that nearly one-quarter of Rudolph's files did not meet the administrative or technical guidelines at the time the cases were worked. It took FBI management nearly six years to perform the type of comprehensive review that should have occurred in 1989 after Rudolph's performance in the Psinakis case was sharply criticized by the very same Assistant United States Attorney who handled that case.
Page 54 PREV PAGE TOP OF DOC
Chemistry-Toxicology Unit Chief Roger Martz failed to conduct certain tests that were appropriate under the circumstances of the Florida v. George Trepal case, in which the defendant was accused of adding the poison thallium nitrate to bottles of Coca Cola. Martz' negligent conduct resulted in the death penalty for Trepal.
Inaccurate/Incomplete Testimony
In the Oklahoma City bombing case, Explosives Unit Examiner David Williams claimed the velocity of detonation indicated that the main explosive charge was ammonium nitrate fuel oil (ANFO). His categorical identification of the main charge as ANFO was inappropriately based on the evidence available to him. He did not draw a valid scientific conclusion, but rather, speculated from the fact that one of the defendants purchased ANFO components. His estimate of the weight of the main charge was too specific, and again was based in part on the improper, non-scientific ground of what a defendant had allegedly purchased. According to the IG report, ''In other respects as well, [Williams'] work was flawed and lacked a scientific foundation. The errors he made were all tilted in such a way as to incriminate defendants. We conclude that Williams failed to present an objective, unbiased, and competent report.'' (emphasis added)
In the Salameh World Trade Center bombing case, Explosives Unit examiner David Williams opined 1) that the defendants had the capacity to manufacture approximately 1200 pounds of urea nitrate, an explosive rarely used for criminal purposes, and 2) that the main explosive used in the bombing consisted of about the same amount (1200 pounds) of the urea nitrate. The FBI chemists specializing in the examination of explosive residue, however, did not find any residue identifying the explosive at the World Trade Center. To quote the IG report: ''[Williams'] opinions about the explosive used in the bombing were based on invalid inference concerning the velocity of detonation (VOD) of the main charge, an incomplete statement of the VOD of urea nitrate, invalid and misleading statements about the type of explosive used, and speculation beyond his scientific expertise that appeared to be tailored to the most incriminating result.'' (emphasis added)
Page 55 PREV PAGE TOP OF DOC
The Avianca case involved the midair explosion aboard Avianca Airlines Flight 203 shortly after its takeoff from Bogota, Colombia, on November 27, 1989. Everyone aboard, including two Americans, were killed in the crash. Agent Richard Hahn collected evidence at the crime scene, examined evidence, and prepared a final report which resulted in the 1994 conviction of Dandeny Munoz-Mosquera (Munoz). However, Hahn's correlation of fuselage indentations to a high-velocity explosive within a narrow range of velocity of detonation was, according to the Bromwich report, scientifically unsound and not justified by his experience. Moreover, in light of scientific literature Frederic Whitehurst submitted to Hahn before the Munoz trial, Hahn erred by not inquiring about the validity of the theory upon which he based his testimony concerning the fuselage indentations. Finally, Hahn supported a theory claiming that a fuel-air explosion followed the initial blast and that certain passengers' injuries were indicative of such an explosion. That testimony was flawed and exceeded Hahn's expertise, the IG found.
Mail bombs in Alabama killed U.S. Eleventh Circuit Court Judge Robert Vance and a civil rights attorney in 1989. A massive investigation ensued, ultimately leading to the indictment and conviction in 1991 of Walter Leroy Moody, Jr. The conclusions of Materials Analysis Unit examiner Robert Webb were crucial to the conviction. The recent IG investigation charitably found that some of Webb's conclusions were stronger than warranted by the results of his examinations.
During Former U.S. District Court Judge (now U.S. Congressman) Alcee Hastings 1985 impeachment hearing before a judicial committee of the Judicial Council of the Eleventh Circuit, the IG report notes that former Hairs and Fibers Unit examiner Michael Malone falsely testified that he had performed a tensile test. Malone compounded that mistake by testifying beyond his area of expertise. Hastings was impeached as a result of that testimony.
Page 56 PREV PAGE TOP OF DOC
Managerial Failures
Upon request of the Assistant United States Attorney in the 1989 Psinakis case, Chemistry-Toxicology Unit Chief Roger Martz was assigned to review the files of agent Terry Rudolph, Frederic Whitehurst's predecessor. Martz reviewed 95 files, concluded that Rudolph's analyses supported his results, and reported finding no technical errors. The recent IG investigation showed that Martz's review was seriously deficient, that he failed to engage in the type of technical review that would actually have assessed the competence and sufficiency of the work purportedly performed by Rudolph, and that Martz's written reporting led Laboratory managers to believe that there were no problems with Rudolph's work or his files.
J. Thomas Thurman, supervisor of Explosives Unit examiner David Williams of the Oklahoma City bombing case, did not properly review Williams' report, the IG report notes. Thurman allowed certain conclusions to stand even though he now does not agree with them and cannot justify them.
The Avianca Airlines midair explosion produced two trials, the first a mistrial, the second the Munoz trial. On the day investigating agent Richard Hahn testified in the first trial, Frederic Whitehurst wrote a memorandum advancing theories that Hahn had not considered. Scientific Analysis Section Chief James Kearny contributed to agent Richard Hahn's incomplete testimony in the Munoz case by not resolving the issues raised earlier in Whitehurst's memorandum.
Explosives Unit supervisor J. Thomas Thurman and Explosives Unit examiner Wallace Higgins changed Frederic Whitehurst's reports in numerous instances, according to the IG report. Some of those changes resulted in inaccuracies and unsubstantiated conclusions. Both the Thurman and Higgins alterations underscore the need for lab personnel to follow clear-cut policy to ensure that reports of analytical work prepared by scientists are not substantively altered unless agreement is reached on the changes.
Page 57 PREV PAGE TOP OF DOC
These cases confirm that the FBI lab needs ongoing and expanded, neutral oversight and overhaul. They demonstrate what an unstinting effort it will take to discover and undo the long-lasting damage brought on by the lab's culture of dishonesty and sloppiness. While the precise magnitude of remedying the problem is unknown, there could well be thousands of cases which need revisiting. For instance, just one of the agents criticized in the report reportedly worked on 4,000 cases, and another faulted for sloppy work was intricately involved in 600 cases.(see footnote 16)
III. WHERE WE STAND
NACDL is attempting to help on two fronts. Our Freedom of Information Act lawsuit forced out the public version of the report, released by a reluctant Department of Justice on April 15. During settlement discussions with DOJ, NACDL offered to mediate our remaining Freedom of Information Act requests and discuss the broader policy issues of improving the lab with Justice Department lawyers, through the Court's cost-reducing Alternative Dispute Resolution program. Unfortunately, DOJ continues to demur. The only reason given is that the ''feeling'' at the ''higher levels'' of Main Justice is that a revamp of the lab is a problem within the sole domain of the Justice Department and the FBI—that is, the very agencies with these deep-seated problems and who for so long ignored them.
We respectfully disagree, and trust that your oversight hearings reflect that Congress disagrees as well. As I stated at the outset, NACDL's position is that the American people need to have all of this information about the lab, and not just a sanitized version. The public has a right to know this information. If the IG's report tells us anything, it teaches that we cannot let the government police itself and keep this information to itself. The FBI lab's misconduct has undoubtedly resulted in some number of innocent Americans being convicted and losing their lives or liberty. Conversely, the lab has made us all less secure in another sense: guilty people have been left to roam our streets as a result of the lab's faulty analyses pointing the government's finger of guilt at the wrong people.
Page 58 PREV PAGE TOP OF DOC
IV. CONCLUSION
Notwithstanding the DOJ's reluctance to work with NACDL and other interested parties toward unbiased lab reform, we anticipate that we will prevail in the remaining facets of our litigation. NACDL is forming a Task Force of volunteer forensic scientists and attorneys to sort through any agency records released, in order to identify cases in which defendants have been wrongfully convicted. We welcome the opportunity to make these findings available to this Committee in a much-needed, continuing and expanded deployment of its vital oversight responsibilities on behalf of the American people. We respectfully offer the following suggestions for the Committee to consider as it continues its arduous efforts to help restore integrity to the FBI lab, and other federal law enforcement agencies.
Continue and expand your oversight, like that begun by this hearing. Congress must expand its probe into all aspects of the FBI lab, and other federal law enforcement agencies forensic centers, as well.
Perhaps this undertaking is so complex that Congress should provide for an independent commission to be convened to more intensely study and make recommendations about it. This could well be a commission like that already envisioned by Section 806 of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104–132, April 24, 1996) (''Commission on the Advancement of Federal Law Enforcement'') (still unfunded by Congress).
Currently, the FBI lab does not even submit itself to the independent review of the very minimal industry standards of the independent American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB). At the very least, Congress should ensure that the FBI laboratory meet these minimum industry, ASCLD/LAB standards: lab personnel must be properly trained and must hold at least a Bachelor's degree in their field of expertise or related field; protocols must be established in order to assure high levels of accuracy; management must be held accountable for fostering the necessary environment, in which the search for the truth—and not ''convictions at any cost''—is paramount and where scientists are permitted to be scientists. And we urge that other labs in the other federal law enforcement agencies also at least meet these minimum standards of the industry. But more, if the FBI lab's integrity is truly to be restored to the preeminent place its has historically held, Congress must ensure that its standards are above and beyond the bare minimum industry standards.
Page 59 PREV PAGE TOP OF DOC
Congress also should weigh a measure like that introduced by Representative Joseph McDade (R–PA), to make it plain that lawyers who work for the federal government—be they DOJ prosecutors or FBI agents working in or out of the lab—cannot be allowed to operate only according to their own boss's special set of legal ethics rules, but rather, must abide by the same rules of ethics as those by which all other lawyers must abide. See H.R. 232 (105th Congress) (''Ethical Standards for Federal Prosecutors Act''); see also hearing record on H.R. 3386 (104th Congress), Before the Subcommittee on Courts and Intellectual Property of U.S. House Judiciary Committee, September 12, 1996. This should ensure ongoing, neutral oversight and accountability not only for those agents working in the lab who are also licensed lawyers. It should also serve to deter FBI case agents who are lawyers, and federal case prosecutors, from encouraging or suborning lab misconduct. It would certainly discourage federal prosecutors from seeking to improperly influence FBI agents and scientists to falsify or hide evidence in the lab. It clarifies the principle that neutral and detached, external state bar licensing, ethics commissions could hold accountable the lawyers they license—even if these lawyers work for the federal law enforcement community—should they remain undeterred and act ''above the law.''
Congress should consider amending Rule 16 of the Federal Rules of Criminal Procedure and the federal ''Jencks Act,'' 18 U.S.C. sec. 3500, to ensure a more open discovery process for federal criminal cases. Lab errors or misconduct could be revealed much earlier, and more often, under such procedures. Such beneficent ''sunshine'' procedures are statutorily required in many states (including the Chairman's state of Florida, for instance), and by practice or judicial order in many federal districts (including my own Eastern District of Virginia). This could be done in a ''pilot program'' fashion, conducted under the auspices of the U.S. Judicial Conference and studied by the Federal Judicial Center, in much the same way the cost and delay reduction reforms in the civil litigation system have been undertaken by Congress pursuant to the Civil Justice Reform Act of 1990.(see footnote 17)
Page 60 PREV PAGE TOP OF DOC
Finally, Congress should consider whether the forensic lab now housed within the FBI should be made an independent agency, separate from the FBI. Perhaps a national crime lab should be created, governed by an independent board of judges and lawyers.
Thank you again for considering our testimony and suggestions regarding how to make the FBI lab a reliable center for forensic excellence in which the American people can have renewed faith, confidence and pride.
Daniel S. Alcorn is counsel for the National Association of Criminal Defense Lawyers in its Freedom of Information Act (FOIA) suit to force the Department of Justice to release the Inspector General's various draft reports on the FBI lab, and underlying working papers and interviews to the American public. He is a partner in the Vienna, Virginia law firm of Fensterwald & Alcorn, where he specializes in Freedom of Information Act and constitutional issues litigation.
He graduated with distinction from the University of Virginia in 1977, and from the University of Virginia School of Law in 1980. He is a member of the Virginia and District of Columbia Bar Associations, and the National Association of Criminal Defense Lawyers.
He has also devoted himself to public service in Virginia and the Nation's Capital Area, including service as Special Counsel to the Office of the Attorney General, Commonwealth of Virginia; Director and Vice-Chairman of the Metropolitan Washington Airports Authority; and a member of the Dulles Corridor Task Force.
Page 61 PREV PAGE TOP OF DOC
The only client Mr. Alcorn represents at this hearing is the National Association of Criminal Defense Lawyers (NACDL). Neither he nor his firm have received any federal grant or contract in the past two years. Nor has NACDL.
INSERT OFFSET RING FOLIOS 118 HERE
Mr. MCCOLLUM. Thank you, Mr. Alcorn. We'll now go to a 5-minute rule, which we have as a process for asking questions. We may go through more than one round depending on the needs of the committee.
I'll recognize myself first.
Mr. Whitehurst, do you have any reason to believe that Director Freeh knew, actually intended to ignore the material concerns that you had expressed prior to the Inspector General getting involved in doing his analysis? In other words, how high up in management did, in your opinion, the neglect of this laboratory go?
Mr. WHITEHURST. Sir, I took the issues to the Office of General Counsel, and the Office of General Counsel—oh, I think in the 1993–1994 period. If we had left it at that, at their findings, the IG report would not be showing the Rudolph, the Oklahoma City, the Avianca, all of those issues where there were real issues. The response, really, that I got was that these are overblown issues you are presenting to us, and that was out of Mr. Freeh's Office of General Counsel.
Mr. MCCOLLUM. But that wasn't Director Freeh, himself. As far as you know, do you know whether that was ever brought to his attention? Or that he, personally, was involved in making those decisions early on?
Page 62 PREV PAGE TOP OF DOC
Mr. WHITEHURST. I believe, sir, that I've got documentation—a memo, or whatever—that Mr. Freeh signed off on about those matters. I went to Mr. Session with these matters just before he left office, left his position, but I haven't personally talked to Mr. Freeh about that.
Mr. MCCOLLUM. What was Mr. Session's reaction to your complaint and allegations?
Mr. WHITEHURST. He took them very seriously. He told me that—I took chapter one, essentially, of the IG report to him—and he said, ''If this is true, this is really significant.'' And he wanted to—and in fact he called me in for another session in which I talked to him for about an hour, both he and his legal counsel chief, but I think he took the issues very seriously, sir.
Mr. MCCOLLUM. You've indicated in your testimony that you think that the Inspector General's report is something you generally concur with—I think you used those kinds of words or something to that effect. What is your reaction with regard to the recommended reforms in terms of, do they go far enough if they're fully implemented? Are they adequate?
Mr. WHITEHURST. You know I go back to wanting outside oversight. If the American Society of Crime Laboratory Directors can go into that laboratory unhindered, with the support of this Nation, then I think that the report makes a good recommendation. I have a concern from having worked there for 11 years that there might be things written on paper, but not actually instituted.
Page 63 PREV PAGE TOP OF DOC
I think accreditation is a step where mechanisms are put into place to make sure things don't go wrong, but despite the fact that a lab can be accredited, you can still find that, although the mechanisms are there, a bad product can come out of a lab. I think that's where further oversight is important.
Mr. MCCOLLUM. Well, in particular, the recommendation includes having non-agents in positions of senior management and more agents that have scientific backgrounds; I would think that that could be very helpful.
I don't want to go down the whole litany, but it would appear that on the face of it—I realize you have some apprehension about whether they will be fully implemented—but on the face of it, these recommendations are relatively solid, at least to the layman, and that's why I was asking you. You're not the layman; you're working in the lab, and I'm curious as to whether you think the actual recommendations themselves, if implemented—and I realize that's the big ''if''—would be corrective of the problems that you saw? Or would you suggest other things that should be done that they did not suggest in the IG report?
Mr. WHITEHURST. Yes, I think to make the lab better. If ASCLD comes in, there's a public record of what they found in the laboratory, and there's a public record of what measures were taken. In other words, if there's some oversight beyond ASCLD, I think that we could depend on that process being viable, working. Again, I would like to see an oversight body beyond ASCLD that's there after ASCLD is gone to be sure that what supposedly is implemented is actually implemented.
Page 64 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. And who could that oversight body be—the Inspector General, or some scientific panel, or Congress?
Mr. WHITEHURST. I think a scientific panel would be appropriate.
Mr. MCCOLLUM. Of outside experts——
Mr. WHITEHURST. Yes.
Mr. MCCOLLUM [continuing]. From other agencies, or the private world, or where?
Mr. WHITEHURST. We have the National Academy of Science out there, the National Research Council. We do have bodies out there that can conduct that kind of oversight.
Mr. MCCOLLUM. One last question from my perspective, Mr. Whitehurst, as far as the work product of most of the scientists that are working there with you in the laboratory: From your observations you have testified that there have been problems, specifically, here. You've given a lot of evidence as a whistleblower. But the work product of most of the scientists who are there—is that work product good, adequate, exceptionally good? How do you rate the work product of most of your colleagues?
Page 65 PREV PAGE TOP OF DOC
Mr. WHITEHURST. I would say this, sir; I am very proud to have worked with them. And I've worked with them, for instance, on the World Trade Center bombing case where we were working 20 to 22 hour days and sleeping on the floor for days and days on end. They are the kind of people that don't quit, don't want to quit. They are totally dedicated, completely dedicated—most of them. We've got, again, some bad apples.
Mr. MCCOLLUM. And you are convinced that the quality of the product they've produced generally, in most instances, has been a good, quality product—those scientists you're talking about?
Mr. WHITEHURST. I believe there are some issues of protocol validation, which are catching up with us now as a result of the Supreme Court ruling in Daubert v. Merrill Dow, requiring reliability, and for years we've depended upon the fact that our teacher said, ''This is reliable.'' Now the courts are demanding of us to prove the reliability beyond peer review, and some of those issues are catching up with us.
But I don't think they're issues of—I think the word is malfeasance—people not doing their job correctly on purpose, or whatever; I think they're just because the world is becoming more complicated, and these kinds of materials we analyze are getting beyond our present capabilities.
Mr. MCCOLLUM. Thank you very much, Mr. Whitehurst.
Ms. Jackson Lee.
Page 66 PREV PAGE TOP OF DOC
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and I appreciate these hearings for the reason that we do have a responsibility to ensure the integrity of the highest legal system in our country, and certainly a justice system that all the world watches.
Mr. Chairman, I would ask unanimous consent to have my opening statement submitted for the record.
Mr. MCCOLLUM. Without objection, so ordered.
[The prepared statement of Ms. Jackson Lee follows:]
PREPARED STATEMENT OF SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Thank-you Mr. Chairman for convening the first in a series of oversight hearings examining the activities of the Federal Bureau of Investigation (FBI). This particular hearing is important because Congress needs to look at the recent findings of the report of the Department of Justice (DOJ) Inspector General(IG) into the misconduct and mishaps of the forensic laboratory of the Federal Bureau of Investigation. I am very interested in discussing with the Department of Justice Inspector General, Michael Bromwich the findings of his 18 month investigation conducted by the (OIG) that addressed a number of allegations made by Dr. Frederic Whitehurst of the FBI. Even though all of Dr. Whitehurst's allegations were not substantiated, I think it is important that this Committee take a look at these types of inquiries, because the FBI laboratory is absolutely essential in putting together many important criminal cases. I am interested in the IG'S findings of significant instances of testimonial errors, substantiated analytical work, and deficient practices on the part of FBI employees. Among some high profile cases, the OIG found that there was scientifically flawed testimony, inaccurate testimony, and testimony beyond the examiner's expertise. It also troubles me that the OIG found that the laboratory division maintained an inadequate records management retention system and that the staffing structure of one of the units in the laboratory division was flawed. I am concerned about revelations that the FBI laboratory has erred in high profile cases such as the World Trade Center Bombing case, the Oklahoma City Bombing case, and even in U.S. v. Kaczyuski, the so-called ''Unabomb case,'' where the lead prosecutor in the case has been forced to repudiate work done by the lab in that case and has asked for new explosive experts from outside the FBI to re-examine the evidence. I am also particularly troubled by the case concerning Former U.S. District Court Judge (now my distinguished colleague in the House) Congressman Alcee Hastings. During Congressman Hastings 1985 impeachment hearing before a judicial committee of the Judicial Council of the Eleventh Circuit, the IG report notes that a former Hairs and Fibers Unit examiner falsely testified that he had performed a tensile test. He compounded that mistake by testifying beyond his area of expertise. Our colleague was impeached as a federal judge as a result of this testimony. I am interested in learning what the Justice Department is doing about the finding that an examiner connected to the FBI laboratory falsified testimony in the Hastings case.
Page 67 PREV PAGE TOP OF DOC
Finally Mr. Chairman, let me say that I am a friend of the FBI and am grateful for the wonderful work that it has done and continues to do for American citizens. FBI agents put there life on the line every day for each and everyone of us. However, it is imperative that the Justice Department and the FBI make sure that the recommendations proposed by the OIG be implemented, and that the FBI laboratory be brought up to the standard of being one of the finest scientific laboratories in the law enforcement community.
Ms. JACKSON LEE. Mr. Whitehurst, first of all, I appreciate your presence, along with Mr. Alcorn.
You raised several interesting points in your testimony of which I'd like to follow up, and it is likely that we may have a second round and I may not complete my questioning. First of all, let me get your present status at the FBI. What status are you in terms of employment with the FBI?
Mr. WHITEHURST. I'm on administrative leave as of the present time. I'm a supervisory special agent assigned to the hazardous materials response unit, but right now I'm on administrative leave.
Ms. JACKSON LEE. Would one be led to believe that your present employment status would color your testimony here today? Do we hear—would I be led to believe, or have any reason to believe that your being placed on administrative leave places you in an adversarial position where you are out to get the FBI?
Page 68 PREV PAGE TOP OF DOC
Mr. WHITEHURST. Well, I think you can answer that very clearly if you see that what I'm saying today is what I've said since 1986. I'm not an adversary of the FBI. My loyalty, I would hope, wouldn't be questioned. I placed my future, my family's future, my fortune, on the line. We have a few bad apples.
If I were an adversary of the FBI, I wouldn't sit here and ask you to use a very thin brush on that OIG report; I'd say, ''Paint the whole laboratory; paint the whole FBI.'' I don't believe that, and that would be a disservice to all of us. The administrative leave is with full pay. I haven't been hurt financially—well, at least paywise, anyhow—by this process.
Ms. JACKSON LEE. Have you been hurt personally?
Mr. WHITEHURST. Excuse me?
Ms. JACKSON LEE. Have you been hurt personally?
Mr. KOHN. Ms. Jackson, Dr. Whitehurst has a complaint in Federal District Court under the First Amendment which deals with a lot of the retaliation issues, and I'm more than glad to answer those questions. But the parties have agreed to mediation of the employment dispute, and I'm here to resolve that, but for the record, we do believe that Dr. Whitehurst has been damaged in his reputation.
Ms. JACKSON LEE. And you would consider that he's been hurt personally?
Page 69 PREV PAGE TOP OF DOC
Mr. KOHN. Yes.
Ms. JACKSON LEE. Dr. Whitehurst, if you were to look at this long history of problems and you started reporting this in 1988, where would you most—and I don't like the terminology ''blame''—but where would you most think the solution could have begun, looking and assessing the issues that you were raising, where could we have most begun to solve those problems?
Mr. WHITEHURST. I think, ma'am, most of all we're afraid of ourselves. Everybody's afraid. And the issues that I've raised were not raised by me; they were raised by me and my colleagues, and we're afraid to go forward. I think it has to do with embarrassment; it has to do with fear of retaliation, fear of losing our jobs. But we're afraid of ourselves in that laboratory.
A scientific laboratory is a place where ideas are shared, arguments are welcome. That's part of the scientific process. We're afraid. We're afraid to come forward, and we need to address that to be most effective as scientists.
Ms. JACKSON LEE. Let me follow up on that, because I guess I can glean from your answer that the first place we could have started to remedy this would have been internally. And so my question is, Did other scientists in the crime lab share your concerns regarding scientific misconduct, and are you able to share with us who those scientists are or were? Are they still in the lab? And what actions did they make individually and separate from you, maybe in the internal process, to make those concerns known?
Page 70 PREV PAGE TOP OF DOC
Mr. WHITEHURST. Yes, other scientists in the lab did share my concerns. If I can go back to 1986 and my very first week in the laboratory, or the second week—I can't remember exactly which—our chief chemist, Roger Martz, came to me to warn me about the man who turned out to be my training agent. I took Martz's words as kind of confusing to me initially, but Martz knew there was a bad product, and he knew people had tried to fix it. Roger Martz is one of the individuals, by the way, that is spoken about in that report.
My supervisor—my unit chief, James Corby—was the guy that I went to for a reality check all the time. It was unbelievable, some of the things I was seeing. I went to other examiners: David Nichols, Roger Palmer, Ed Kelso, Pat Welsh, Steve Burmeister, just so many people that were concerned; scientists at Quantico in our research facility that were concerned about the science that we were doing, concerned about issues of who we were and were not employing, about who was putting their names on papers and things like that.
There were—it's kind of a boiling pot of people that do have very real concerns, concerns about contamination in the laboratory. For years—this is the example I use—for years our ventilation system was blowing out something we came to refer to as black rain. It turned out it had lead particulate in it, and nobody would do anything about it. Lead in a lab looking for lead creates a reasonable doubt if it's blowing in from the outside, do you know? So this—I can go on and list more people.
We had women in the lab that were concerned about health problems. The chemist working with me, Kelly Hargidan, was concerned about a child she has now had. There were just many people expressing these concerns and very angry about some of the things.
Page 71 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. Thank you, Ms. Jackson Lee.
Mr. Chabot, you're recognized for 5 minutes.
Mr. CHABOT. I thank the chairman, and thank the gentleman for the testimony here this morning.
I represent the city of Cincinnati, and there's just this story that's broken back there this week about a police officer that has apparently admitted planting drugs on a particular defendant who, as a result, went to prison, and it certainly does shatter to some extent the confidence we have, assuming that this is all true, in police officers. And I think it's a bit similar to what some of the allegations are that have been made recently with reference to the FBI.
I mean, I think the public would like to think, and I certainly would like to think, that when you hear that something has gone through the FBI crime lab, for example, I mean what could be more motherhood and apple pie than the FBI?
Whether it's a reliance upon fingerprinting or investigation of various bombing incidents which have taken place, I mean I think we want to assume that everything's above-board, that completely accurate scientific evidence and experimentation has been carried out. And that's why I think the allegations that have been made are so disturbing.
And, Mr. Whitehurst, I would ask that you would comment on the allegations that you've brought forth and the OIG's report and the changes which are being made. Could you comment on the confidence, the loss of confidence, perhaps, in law enforcement and the FBI labs that allegations such as you've brought forth bring to the public?
Page 72 PREV PAGE TOP OF DOC
Mr. WHITEHURST. I think, sir, you were able to name one policeman on the whole police force. That leaves me confident. I believe we are a microcosm of society. We're going to pick up bad wood—we just are. I don't think that we can afford to lose confidence. When I, as an FBI agent, go to someone's front door and ask questions, I can't have them closing the door on my face every time, so I think that it's sort of a wake-up call.
We're not, as law enforcement officers, above review; we shouldn't be. But it doesn't mean we're bad; it just means we need some outside oversight. And there's oversight in citizens' groups, or whatever, for police departments. Why should there be no regulation of forensic labs in this country? Before the problem goes bad, before the problems like this show up, let's catch them. Let's nip them in the bud.
I'm an FBI agent, and I will open my door to an FBI agent and let him in the house. I'm confident that the FBI lab, by and large, is putting out a good product. I don't want to over-infer that data, sir.
Mr. CHABOT. I think that's exactly right. I think that as unpleasant as oversight hearings like this may be on occasion—the fact that they may shake our confidence a bit in some of our institutions—I think the strength of those institutions over the long run is dependent upon having these types of hearings, where we let the chips fall where they may and let the whole agency air out. And if there are problems, then certainly fix those problems so that the FBI is as good as it possibly can be.
And I want to thank you for coming forward with your testimony. Would you like to comment on the OIG report itself? I know you did a little bit already, but are you basically satisfied with the recommendations that have been made as a result of your allegations and others?
Page 73 PREV PAGE TOP OF DOC
Mr. WHITEHURST. I am in the process of reviewing the report. I expect it to take me a bit longer. What I've seen so far indicates to me, as I've said, they really took a close look; they really listened. Mr. Glendening and Mr. Mellado ran that crew, and they really looked deeply into what I was talking about. I didn't just get the brush-off, and I think we can feel confident about that.
There are some scientific issues in there that I, you know, take issue with. There are some scientific technical issues that I disagree with, but I'm elated. You know, when they showed me the report to review I was like a kid in a candy shop. It was, ''My gosh, we've gotten there. We've gotten there. It's on the table and now we can move forward after all of these years.''
Mr. CHABOT. Okay, and the final question: Certainly, what you've brought forward and some of the things which you're alleging would give some defense attorneys—and Mr. Alcorn, I might want to bring you in on this, also—maybe a field day on some cases, which is one of the unfortunate things about this, that some cases that may not merit review will have attorneys filing appeals, and when in overturned convictions, certainly if people were convicted and are behind bars and are innocent we want to know that.
But, Mr. Alcorn, if you could comment, do you know how many cases that we may be talking about here that may be under jeopardy, either appeals or as a result of what's happened in the crime lab?
Mr. ALCORN. Well, hundreds and perhaps thousands will be looked at, and you know, of course, the result is that we want to get to good science, good objective results. I do want to say that on the issue of—we do no one any favor; we don't do law enforcement any favor if we give them a kind of power that is not checked by some sort of oversight, because no human being can resist the temptation that comes with that kind of unbridled power.
Page 74 PREV PAGE TOP OF DOC
You know, none of us can resist that if given that, and I think the problem that we're trying to submit to the Congress is, how do we check in an appropriate way the kind of power that we're giving to some of our law enforcement institutions because of the problem of crime that we have? And I think that's an important national policy issue.
I think Dr. Whitehurst has done his part by coming forward, but we're advocating some systemic changes so that we have a check and balance in these law enforcement agencies.
Mr. CHABOT. Thank you very much.
Mr. MCCOLLUM. Mr. Hutchinson, you're recognized for 5 minutes.
Mr. HUTCHINSON. I thank the chairman, and I appreciate the testimony that the witnesses presented today.
Let me start, Mr. Whitehurst, with you. It's my understanding that the OIG report looked at the explosives unit, the materials analysis unit, and the chemistry toxicology unit. Now how many units all totaled are there in the laboratory division of the FBI?
Mr. WHITEHURST. I've heard 25 or 30, but that is reconfiguring all the time. And since I've been gone since the 20th of January, I would imagine they might have reconfigured since then.
Page 75 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. But this would be dealing with problems in about three of the 25 units of the FBI laboratory?
Mr. WHITEHURST. Yes; it was actually four, because the issue involving the matter of bad testimony in the Alcee Hastings matter came out of the hairs and fibers unit, so it was actually four units that were reviewed.
Mr. HUTCHINSON. I've been handed a note indicating there are about 35 units in the FBI laboratory.
Mr. WHITEHURST. OK.
Mr. HUTCHINSON. Does that sound reasonable to you?
Mr. WHITEHURST. That sounds reasonable.
Mr. HUTCHINSON. And the OIG report, whether it would be three or four if you include that last unit, dealt with only four units of the FBI laboratory?
Mr. WHITEHURST. Yes.
Mr. HUTCHINSON. And the other units, like the document unit and the fingerprint unit; in both of those there's not been any problem, either in your review or the OIG's review?
Page 76 PREV PAGE TOP OF DOC
Mr. WHITEHURST. I'm not—you know I wasn't working in those units, and so what I did, sir, was when problems were presented to me I brought them forward, you know? And I wasn't in those units, so——
Mr. HUTCHINSON. You're not aware of any problems then?
Mr. WHITEHURST. No.
Mr. HUTCHINSON. Not to say that no one can say that there's not a problem that doesn't exist, but you're not aware of any problems in those units, and the OIG did not become aware of any problem in those units?
Mr. WHITEHURST. No, not right now, sir. I just wasn't acquainted with those units.
Mr. HUTCHINSON. Mr. Whitehurst, one thing I wanted to ask you about—and I admire your struggle first of all, because I know that you've been through a lot and that the result, I believe is something that's been beneficial for our court system. But one thing did disturb me a little bit and I wanted you to comment on it. Did you ever communicate your concerns with defense counsel and expert witnesses in a criminal case?
Mr. WHITEHURST. Yes, I did.
Mr. HUTCHINSON. And can you tell me what case that was?
Page 77 PREV PAGE TOP OF DOC
Mr. WHITEHURST. Yes. That was a matter——
Mr. HUTCHINSON. Just tell me the——
Mr. WHITEHURST. The U.S. v. Stephen Psinakas, P-S-I-N-A-K-A-S.
Mr. HUTCHINSON. And what was the criminal subject matter? Was this is a robbery case?
Mr. WHITEHURST. It was a bombing.
Mr. HUTCHINSON. Pardon.
Mr. WHITEHURST. It was an explosives-related matter.
Mr. HUTCHINSON. Prior to going to defense counsel, did you go to the United States Attorney?
Mr. WHITEHURST. No, sir; I didn't.
Mr. HUTCHINSON. Is this not a severe breach of the ethical standards and responsibilities of the FBI?
Mr. WHITEHURST. You mean on my part?
Page 78 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. Yes.
Mr. WHITEHURST. I recognized what I was doing was unorthodox when I did it. I didn't know where else to go.
Mr. HUTCHINSON. Well, you could have gone to the United States Attorney, could you not have?
Mr. WHITEHURST. Yes, I could, but I reached a judgment based upon an interaction with him that said to me, this man is also going to take what I've said as, you know, ''so what,'' that sort of situation, sir, and that's why I went to the defense expert. I didn't talk to the attorney, himself, but I talked to the defense expert.
Mr. HUTCHINSON. And you gave him the information that they could use in cross examination?
Mr. WHITEHURST. I told him, essentially, that the testimony of what this fellow, this other agent, was presenting was suspect.
Mr. HUTCHINSON. And you never told the United States Attorney that.
Mr. WHITEHURST. I didn't tell him until after the fact.
Page 79 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. After the trial?
Mr. WHITEHURST. No, the trial was still going on. I met with him in his office and explained to him at that point my misgivings.
Mr. HUTCHINSON. Now, Mr. Alcorn, let me talk to you, because as my colleague indicated this is a field day for defense attorneys. Can you just be very specific and tell me in your view, what's the best way for the credibility to be returned to (and we should put it in perspective) the three or four units of the FBI laboratory out of the 35 units?
Mr. ALCORN. Well, let me on that point—when the Inspector General released his report, he said that no one should take it that it validates the rest of the laboratory because he made no investigation of anything other than the specific allegations that were brought to him in those units, though we really have had no review or investigation, and he did not want anyone to take it that this was validating the rest of those units.
Our concern is independence. We believe that what's happened here is that in the chain of command down the FBI, because the laboratory is in the chain of command, that that creates a problem and has created a problem in objectivity.
Mr. HUTCHINSON. Let me interrupt you, because my time is going to wind up here. Other than the independence of the laboratory, which is a big issue, but other than that, what would be the most significant thing the FBI can do at this point?
Page 80 PREV PAGE TOP OF DOC
Mr. ALCORN. We need to have more open discovery in criminal cases. Your questioning Dr. Whitehurst about speaking to defense counsel, I think, is actually a positive when a case is tried with as much truthful information as possible about the case. We do not have open discovery in many districts in the country. I've tried cases in districts where we do, and we prevented mistakes from being made in the cases, which we don't want mistakes made in the system.
And my final point is that defense counsel—they talk to defense counsel—but defense counsel are in the U.S. Constitution by specific wording and name, and so we're all sworn to uphold the U.S. Constitution and that includes defense counsel.
Mr. HUTCHINSON. But we do have an adversarial system of justice.
Mr. ALCORN. Right, but we're seeking truth.
Mr. HUTCHINSON. Absolutely, and we should all remember that.
Thank you very much, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Hutchinson.
Mr. Gekas, you're recognized for 5 minutes.
Mr. GEKAS. Yes, I thank the chairman.
Page 81 PREV PAGE TOP OF DOC
Mr. Whitehurst, the article that you wrote, ''Black Magic and the Bureau,'' begins by talking about the plaque that you received in recognition of your outstanding contribution to the successful investigation and prosecution of the World Trade Center bombing case, so that I take it you did good work there, or at least that seemed to be good work to those who awarded you the plaque; it was the U.S. Attorney who did it.
Then you go on to say in this same article in the next paragraph that, ''in the Trade Center case scientific fraud was prevented.'' Are you saying that it was prevented because you had blown the whistle and, thus, what might have been tainted testimony did not get to the jury?
Mr. WHITEHURST. Yes. It wasn't just me that blew the whistle, if you will, or brought the issues forward. It was myself and another individual in the lab.
Mr. GEKAS. So that as far as you were concerned, when the matter went to trial in the World Trade Center case, there was no discrepancy about what you had complained. Is that correct?
Mr. WHITEHURST. Yes. The specific complaint was about a report that had gone out that had been—it represented the opinion of unqualified examiners about a particular area of expertise, and that did not go forward.
Mr. GEKAS. That did not go forward?
Page 82 PREV PAGE TOP OF DOC
Mr. WHITEHURST. No.
Mr. GEKAS. You prevented it, in other words.
Mr. WHITEHURST. I did my——
Mr. GEKAS. Others did.
Mr. WHITEHURST. Yes, yes; that's correct.
Mr. GEKAS. But then the OIG report, in commenting on the World Trade Center bombing, centers on the testimony of Williams and almost is a scathing review of his lack of expertise, and so forth. What was your relationship to Williams?
Mr. WHITEHURST. Agent Williams was a fellow who worked in the explosives unit. He was a principal examiner of evidence, and I was an auxiliary examiner, which meant I worked on evidence, did analysis of evidence that he sent to me.
Mr. GEKAS. Well, then the clearance that you gave or prevented, the evidence that you prevented from going, Williams did not prevent. Is that correct?
Mr. WHITEHURST. Yes, that's correct. What happened was that a report was issued and it went forward to the prosecutor. The report was flawed. It was flawed, and I and another examiner raised issues about the flawed report, and my supervisor told me, ''Go get it. Go get everything that goes into it and rewrite it because it shouldn't have been written.''
Page 83 PREV PAGE TOP OF DOC
Mr. Williams allowed that report to go forward, but Mr. Williams wasn't in a position to understand when he reviewed the report what was wrong with it at that time.
Mr. GEKAS. So you didn't think there was anything wrong with the Williams report?
Mr. WHITEHURST. No, no. This is confusing, isn't it?
Mr. GEKAS. Yes; that's why I'm trying to de-confuse myself.
Mr. WHITEHURST. What went on with New York, with the situation in the World Trade Center, was that a report was issued that was flawed. We raised issues. We said, ''This is a flawed report.'' It was not removed. But Steve Burmeister and I said, ''Well, okay, we'll expose the fraud in court. You will bring that report back or we'll testify to this on the stand.'' My supervisor said, ''Bring the report back.'' He recognized that it was flawed. He said, ''Bring the report back.'' We brought it back, and we fixed it.
The issues in the IG report have to do with Mr. Williams's testimony during the trial itself, and I did not find out about that testimony; I didn't review that testimony until a couple of years after the testimony took place.
Mr. GEKAS. Well, then, why, if you didn't know anything about what Williams might say in court and which later you found surprising—but you express sadness at receiving the award for your contribution to the World Trade Center case, even though you had prevented fraud.
Page 84 PREV PAGE TOP OF DOC
Mr. WHITEHURST. It was a sad thing that it even got to that.
Mr. GEKAS. It was sad—what?
Mr. WHITEHURST. It was a sad thing that we got to that, that a report came out of the FBI laboratory that was that flawed, that we knew had problems with it, and that we wouldn't do anything about it. That's a sad situation.
Mr. GEKAS. Did you say anything about that when you received the plaque?
Mr. WHITEHURST. No, it wasn't an appropriate time to say something about it, sir.
Mr. GEKAS. You didn't think about refusing to take it?
Mr. WHITEHURST. There's different ways of raising issues, and I didn't think it was appropriate at that time to raise that issue, sir. I was in the Director's office——
Mr. GEKAS. Do you feel you deserve the plaque?
Mr. WHITEHURST. I think that I did a very good job in the World Trade Center bombing case. Whether I deserve a plaque or not, that's up to others to decide, sir.
Page 85 PREV PAGE TOP OF DOC
Mr. GEKAS. But you felt a sadness at the moment that you received it.
Mr. WHITEHURST. Yes.
Mr. GEKAS. Did you feel good about what you had prevented from going into the case? Was that your contribution to the case?
Mr. WHITEHURST. Well, my contribution was the hard work, the laboratory that we set up there, the management of the analysis of samples, and to also stopping that flawed science from going forward.
Mr. GEKAS. And then you wouldn't feel good about that?
Mr. WHITEHURST. Sure I would.
Mr. GEKAS. But you expressed sadness in your——
Mr. WHITEHURST. Yes. It is a sad thing that the FBI would allow such a report to go out of its laboratory, sir. It is, and I think that we've heard that here.
Mr. GEKAS. But you were successful in preventing it from being entered into evidence.
Page 86 PREV PAGE TOP OF DOC
Mr. WHITEHURST. Only by taking the methods that we took.
Mr. GEKAS. And you should feel good about that.
Mr. WHITEHURST. Yes.
Mr. GEKAS. I have no further questions in this round.
Mr. MCCOLLUM. Thank you, Mr. Gekas.
Mr. Coble, you're recognized for 5 minutes.
Mr. COBLE. I thank the chairman. Gentlemen, it's good to have you all with us.
Dr. Whitehurst, let me talk to you a minute about retaliation. First of all, it is my belief that any whistleblower probably has felt the sting of retaliation. If I work for a guy and I think the work is imperfect and inaccurate and I blow the whistle, common sense tells me that my supervisor is not going to come up to me and say, ''Gee, thanks for blowing the whistle on our sloppy job.'' I think the gut reaction is going to be, ''I'm going to nail the whistleblower.''
That's my belief; I can neither prove nor disprove that belief. But let me ask you this, Dr. Whitehurst, regarding your performance review of December 1995. Now I realize that a performance review is not the only available route that one need pursue to impose retaliation, but it is a convenient route. Now, in that performance review of yours, your supervisor rated you superior or exceptional. Now that would tend to support the FBI's position that they have, in fact, not retaliated. What say you to that?
Page 87 PREV PAGE TOP OF DOC
Mr. WHITEHURST. Mr. Counselor.
Mr. KOHN. Again, the retaliation issues are currently in Federal court, and we're moving into mediation on that. We've agreed to that, but I think that what the record would show is that Mr. Corby, who is his unit chief, actually supported Dr. Whitehurst's whistle blowing and supported the vast majority of the scientific concerns he was raising.
And what you'll see in the FBI is that there was a disconnect, often, between some of what the scientists were saying and what was happening out of groups such as the Office of Professional Responsibility and the Office of General Counsel. It's from those groups that most of the retaliation came from.
Mr. Corby, who signed off on five or six glowing evaluations of Dr. Whitehurst, was a supporter. And if you look at the 1993 evaluation, you'll see right—and the words he used to describe Dr. Whitehurst on World Trade are glowing and exceptional.
That brings us to the oversight issue, and it brings us to how do you protect whistleblowers? And as in the pre-filed remarks that I filed, President Clinton has recently directed the Attorney General to set up legally-mandated protections for whistleblowers that did not exist—although in law they existed—had not been implemented from 1989 to 1997. And in terms of oversight, an effective mechanism to protect whistleblowers is absolutely critical. That's where we would go with that.
Page 88 PREV PAGE TOP OF DOC
Mr. COBLE. I thank you for that answer, and as I said, I realize that a performance review is not an exclusive route to be pursued, that retailigtion that could be gamed one way or the other.
Dr. Whitehurst, does the FBI culture reward one's status as an agent as opposed to a non-agent?
Mr. WHITEHURST. Does it reward your status as an agent as opposed to a non-agent?
Mr. COBLE. In other words, does one who enjoys the status of an agent, does he or she enjoy preferential treatment compared to his or her colleague who does not have the status of agent, but rather is known as a non-agent?
Mr. WHITEHURST. You know it's interesting that you ask that question. The special agent that recruited me, Carl McCleod, in Houston, Texas back in 1981, told me that. I wanted to come into the FBI as a scientist, not as an agent, and he said, ''You need to be an agent. You'll go further; you'll get more out of the FBI as an agent.''
Mr. COBLE. All right. Well, did you in fact find that to be the culture then?
Mr. WHITEHURST. Yes. I believe that a lot of people do harbor that concern also and speak about it, that we treat non-agents as second-class citizens.
Page 89 PREV PAGE TOP OF DOC
Mr. COBLE. All right, sir. Now given that culture, do you think that it may have contributed to some of the problems at the lab?
Mr. WHITEHURST. Yes, I do.
Mr. COBLE. Mr. Alcorn, you may have said this, and if so, I apologize for having not picked up on it. Were you involved as defense counsel with any of the defendants whom you mentioned earlier who were victims of the inaccurate laboratory findings?
Mr. ALCORN. No, I was not. That comes out of the Department of Justice report from last year in which they did research to try to find—they had heard about cases, and they were able to find 28.
Mr. COBLE. Mr. Chairman, I have no further questions. Thank you.
Mr. MCCOLLUM. Thank you, Mr. Coble.
Mr. Wexler, you're recognized for 5 minutes.
Mr. WEXLER. Thank you, Mr. Chairman.
I just have one question of Mr. Whitehurst, and I apologize if it has been asked before, before I came into the hearing room. With respect to your experience, are you concerned that there are people that have been convicted, wrongfully convicted, as a result of some of what appears to be less than prudent behavior at the FBI in terms of the crime lab?
Page 90 PREV PAGE TOP OF DOC
Mr. WHITEHURST. Yes, sir; I am concerned about that.
Mr. WEXLER. And if I may then, just to follow that up—and, again, I apologize if this is material that has been asked and answered. With respect to that concern, which seems in my mind to be a very legitimate one, and I admire you for it, what is the appropriate course of action, either in terms of your course of action at this point or in terms of what you might recommend to this committee in terms of what it should do?
Mr. WHITEHURST. I think that the IG report says there are some problems. It doesn't go far enough to look into the history of the problem-causers, if you will, or the problem employees. In the matter involving the false testimony, as the IG referred to it, in the trial of Congressman Hastings, for instance, the individual that was involved in that probably worked on 4,000 to 5,000 cases in his career.
I have reviewed a Wall Street Journal article which indicates there might be some other problems, and I think we need to—if we can say that there's clearly a problem with this employee and the way this employee had testified in this matter, we need to look backwards and see if that's indeed the case in other cases.
Mr. WEXLER. OK. Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Wexler.
Mr. Buyer, you're recognized for 5 minutes.
Page 91 PREV PAGE TOP OF DOC
Mr. BUYER. Thank you. I have just a couple of questions. One, I want to get to the culture question so I can understand the lab a little bit better. If, in fact, the culture is that they do not want specialists, then agents will come into the lab, spend a few years there, and then move in and out of the lab? Tell me about how that works.
Mr. WHITEHURST. Well, in the past, agents have come in and they've sort of divided into a couple of groups. If they came in under the science program, and they're doing their stint in the lab, they just want to leave. Then there's also agents that have come in, like my supervisor, James Corby, that spent over 30 years in the FBI laboratory. For a scientist, it's a fascinating, beautiful place to work. It's really great, and so, you know, you get all of the neat equipment, good solid problems to work on, and that sort of thing. So a scientist would see it as being like a kid in a candy shop.
Mr. BUYER. But are there agents that come in, spend three or four years there, and then go back out into the fields with their knowledge and expertise?
Mr. WHITEHURST. Yes. I don't know about three——
Mr. BUYER. Is that the normal flow of personnel?
Mr. WHITEHURST. No. My experience is that most people come in and stay for a number of years, for a long time.
Mr. BUYER. If, in fact, there's a culture within the FBI that perpetuates this problem in the lab, what is your recommendation to cure?
Page 92 PREV PAGE TOP OF DOC
Mr. WHITEHURST. I think that—well, that's a difficult one, sir. I think that——
Mr. BUYER. Sir, you've written 235 memorandums; you've written letters.
Mr. WHITEHURST. Yes.
Mr. BUYER. You have an opportunity now to present a cure to a panel that's going to listen. I don't think you should have to stutter.
Mr. WHITEHURST. But I am stuttering. I would like to know that our managers recognize all of us as very valuable members of the team. I'm not sure that's part of our management culture. I'd like anyone that's been associated with any matter to be recognized, which ought to be, when you talk about chain of custody and who actually ran the equipment and who actually understands the science.
I don't know how you solve the problem of supreme arrogance, sir. I don't know how you address it if you don't recruit people with some humility, if you don't fill them with some understanding that supreme arrogance is very destructive.
Mr. BUYER. Well, do you flush the lab and have solely non-agents as scientists that work just in the lab?
Page 93 PREV PAGE TOP OF DOC
Mr. WHITEHURST. You know, I don't think that's a good idea. Some people have suggested that, but there are definitely cases where science is needed, where a practicing scientist is needed, but he also needs to be an FBI agent. And so I don't see us flushing the laboratory. That's been a long-running argument back and forth. I don't see flushing all of the agents out of the lab.
Mr. BUYER. Egos within the realms of science can be pretty large because you hold on tight to your theories, do you not? So I don't think you ever want to flush the word ego out from a scientist.
Mr. WHITEHURST. I understand what you're saying.
Mr. BUYER. Well, I won't take up the time to do this.
Mr. WHITEHURST. Sure.
Mr. BUYER. What I would ask you to do though is to think about that question and submit in writing to the panel what you recommend to cure with regard to the lab. Would you do that for us?
Mr. WHITEHURST. Sure.
[No information submitted.]
Mr. BUYER. I think that would be very helpful.
Page 94 PREV PAGE TOP OF DOC
The other thing I have to ask—real quick—is this failure to cooperate with the professional responsibility into the allegations that you had improperly disclosed information to the media. Why did you fail to cooperate, and are continuing to fail to cooperate, with the investigation?
Mr. WHITEHURST. I defer to counsel.
Mr. KOHN. Mr. Buyer, that is again a matter that is subject to our suit in Federal court, and, as I mentioned before, we are attempting to go into mediation. It's important to understand that it is our position that Dr. Whitehurst did not fail to cooperate.
The issue turned on the right to counsel. It was the second time in Dr. Whitehurst's career in the Bureau that he was asked to, quote, unquote, ''cooperate'' with some form of investigation, and that he was not allowed full access to counsel. The first time, we instructed Dr. Whitehurst not to go forward until the right to counsel issue was resolved. That matter was laid to rest.
Mr. BUYER. But now they have a new policy.
Mr. KOHN. The second time it came up, the same issue arose and we again gave that instruction. I understand there's a new policy, and as I say, that issue is now in court. We did raise the constitutional right to counsel as one of the claims in court. It's under mediation now. I know I'm speaking on behalf of my client to say we hope that those matters can be settled and resolved through a very respected mediation process in Federal court.
Page 95 PREV PAGE TOP OF DOC
Mr. BUYER. All right. Thank you, Mr. Chairman. Thank you, Dr. Whitehurst.
Mr. MCCOLLUM. Thank you, Mr. Buyer.
We don't have the time to go through a full, complete two rounds of questions for every panel, but we are going to attempt a little bit of that with you, Mr. Whitehurst, because we had so few Members here to begin with in the questioning. And I'm going to yield myself another 5 minutes—I don't know if I'll consume all of it—and ask a couple of questions.
I want to pursue, first, the culture question with respect, particularly, to the expert witness testimony of those at the laboratory that you've observed—your opinions, your observations about the attitude of those agents going in as experts.
Are those who testify from the laboratory currently, or have they been in the past, generally prosecution-oriented? Is it a culture that suggests that ''our'' job is to go in and to prove the case or help the prosecutor prove the case? Or is it the the attitude, normally, of one who goes to testify that he's there just to let it all hang out scientifically?
Mr. WHITEHURST. You know, we divide into different groups in the laboratory about that, and it's a discussion that goes on quite often. For a long time I understood it to be not desirable to be working—you know, some people were expressing the fact that, ''I'm not there for the prosecutor; I'm there for the science.'' I went off to law school and found out the prosecutor is looking for justice. I am, too, and so I work for the prosecutor.
Page 96 PREV PAGE TOP OF DOC
If my concept of a prosecutor is of a fellow who's just trying to prove guilt, then, of course, I find myself appalled when somebody wants me to leave out my understanding of the data that doesn't support a finding of guilt. But there are quite a number of people in the laboratory that are still left with that feeling, or there were on the 20th of January when I left, that are troubled by our giving opinions that leave out so much of our understanding of the data.
Mr. MCCOLLUM. I've looked at the IG's report in the details with respect to some of these cases, and those who are most criticized individually for expert witness testimony appear to be people who have just stretched it. They went out and tried to make it sound as good as possible. And that's where the trouble came from. Not necessarily that the underlying evidence was there or not there. It's just that they wanted to make the case. I don't know if it's true. But that's what the IG report in some of these cases looks like to me as the outside observer. So I'm concerned about that and I'm interested very much in what you've had to say.
I'm also interested in whether or not you have observed during your tenure there a rivalry with the Bureau of Alcohol, Tobacco, and Firearms' Explosives Unit in terms of getting the scientific evidence, in terms of getting there faster, sooner, quicker, and whether or not (a) if that rivalry exists, in your opinion, and (b) the degree to which that might negatively affect the work product. Do FBI scientists and agents at the laboratory attempt to move too quickly to beat the ATF, so to speak?
Mr. WHITEHURST. I think over my tenure—and I raised this issue in one of my letters to the IG—that I heard so many times from men that declared themselves to be the premier experts in explosives, our Explosives Unit personnel, that the ATF couldn't do their job, were incompetent, whatever. It was rivalry.
Page 97 PREV PAGE TOP OF DOC
Then I asked this question: ''If this is what the FBI believes, isn't this exculpatory information in any court of law in which the ATF laboratory appears?'' It's a valid question from my point of view. If they're not doing their job right and the FBI believes the ATF can't do their job right and we're articulating it loudly: ''Well, don't defendants in a court of law deserve that?''
I personally don't agree with that point of view. I have worked closely with the AFT for—with their lab for, ever since I've been in the laboratory—and I think they have a very professional product.
Mr. MCCOLLUM. Has that rivalry ever negatively affected the work product that you've observed at the FBI lab?
Mr. WHITEHURST. When personnel in the FBI laboratory no longer wanted to conduct explosive residue testing because of allegations I had raised—the testing that I was doing—I went to AFT and said, ''Can we work together?'' And I very quickly thereafter got a note from my section chief through my unit chief that said, ''You can't talk to them. Stay away from them. They won't do the testing.''
At this point, sir, there are many parts of our explosives analysis protocol that haven't been validated.
Mr. MCCOLLUM. All right. Let me ask you a question about the Oklahoma City bombing, very briefly. Did you work on that?
Page 98 PREV PAGE TOP OF DOC
Mr. KOHN. Mr. McCollum, the FBI, in discussions we've had, have asked that because of the protective order issued by the judge in that case that my client not directly address matters related to Oklahoma City.
Mr. MCCOLLUM. Well, that's satisfactory, but let me ask one question that won't focus the details of that and maybe he can answer it, and if he can't, he can't. The Office of the Inspector General particularly criticized Supervisory Special Agent David Williams and in that criticism there's reference being made to a letter, a 30-page letter that you sent, dated September 5, 1995, regarding that particular agent. Is that something that you sent from your own knowledge? Or was this criticism a letter that you prepared based upon what others represented to you? In other words, I'm not clear on whether or not this is one of those cases where you personally observed the deficiencies that you set forth or whether or not you were merely transmitting other people's observations.
Mr. WHITEHURST. OK, OK. Certainly. We need to dance with this one.
Mr. MCCOLLUM. That's fair enough, but I want to be sure that you understand I'm not asking for substantive information.
Mr. WHITEHURST. Yes, I understand.
Mr. MCCOLLUM. I'm asking procedural.
Page 99 PREV PAGE TOP OF DOC
Mr. WHITEHURST. Yes, Mr. Chairman, Mr. Williams gave me his report to review. I reviewed the report. We initially started a process where he and I were going to discuss it. It had already been issued. I don't know why he gave me the report. The process of our discussion was stopped by management and at that point I went to my manager and said, ''There's problems here and we're about to go through this again.'' But my 30-page memo came from my personal review of that particular report.
Mr. MCCOLLUM. All right. Not from work on the subject of Oklahoma City, but on your review of that report. All right, I understand. Thank you.
Ms. Jackson Lee, you're recognized.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
Let me, just for the record, state that in the last Congress we had the very sensitive duty to oversee and to review the Waco tragedy and several other incidences, and I hope that we proceed with these hearings over the next couple of days in the context in which I think is most appropriate to restore the faith of the American people in the criminal justice system.
Mr. Alcorn, I welcome your statement, not in an adversarial way, but you are part of the Constitution. We should recognize that. Mr. Whitehurst, in particular, I think that we do ourselves a disservice if we give suggestions that this is not a place where you'd be welcome. We don't want any suggestions, I believe, as an oversight committee, that individuals who have something to say about our whole system of government or our whole system of justice are not welcomed in the United States Congress.
Page 100 PREV PAGE TOP OF DOC
So, with that, I would like to ask some more pointed questions. Did the Whistleblower Act of 1989 protect you, from your perspective? Is that something—Mr. Kohn, if you have to answer that—is that something that is sufficiently in place that we can be comfortable that we will have the opportunity to hear information as it is needed?
Mr. KOHN. Yes, I think that's a very important question. The Whistleblower Protection Act of 1989 amended a provision to protect FBI agents and strengthened it considerably to give FBI agents a right to a hearing, a right to discovery, a right to an attorney, attorneys' fees if they win, other damages. It set strict time limits.
And if you look at when Dr. Whitehurst first started blowing the whistle in a more public way, 1989, there—he had a right to a hearing within a specified time limit. But the FBI did not implement that law. The Attorney General did not implement that law. The President did not implement that law. So between 1989 and 1997 you had a situation in which whistleblowers at the FBI were in a lawless institution. It's no wonder why people were afraid to come forward. The mandated procedures were not implemented.
Ms. JACKSON LEE. They were in place, but not implemented?
Mr. KOHN. No, no. They weren't even in place. Nothing. Nothing was done to implement the law. President Clinton on April 14, 1997, as a direct result of Dr. Whitehurst's First Amendment suit in which we sought a mandamus against the President, an injunction against the Attorney General, ordered the Attorney General to finally implement that law. It's still not in place.
Page 101 PREV PAGE TOP OF DOC
But what is incredible is that Dr. Whitehurst had to be in this Franz Kafka type of reality in which there was no due process, where laws were passed and they meant nothing. And he had to go through procedure after procedure after procedure in Franz Kafka's castle.
Ms. JACKSON LEE. Thank you. Let me——
Mr. KOHN. I hope——
Ms. JACKSON LEE. Let me—if you finish your last sentence.
Mr. KOHN. Sure. I just hope that that will change.
Ms. JACKSON LEE. Thank you. Dr. Whitehurst, you started in 1988. You operated under more than one Director of the FBI. What is your assessment of the role that a Director of the FBI could have taken in the circumstances that you spoke of?
Mr. WHITEHURST. Actually, Ma'am, I started in 1986, but I think that a lot of the issues I raised were very complex issues. I think that the Director could be, could be very clear with us what our role is. We're investigators. That's what we do. We don't decide guilt and fill in the blanks. I think that message could have been very clearly put forward again, and again, and again.
Ms. JACKSON LEE. And you're saying that it was not done during your time of making mention of these concerns?
Page 102 PREV PAGE TOP OF DOC
Mr. WHITEHURST. Yes, during my time, we were concerned. We talked among ourselves.
Ms. JACKSON LEE. But the Directors, whoever they might have been, say from 1986 to now, to the present, you're saying that you did not get a sense that there was a response from the top down on the concerns you were making. Is that my understanding?
Mr. WHITEHURST. Yes.
Ms. JACKSON LEE. All right. Let me just go on very quickly. You had mentioned the concern about the procedures used by the FBI lab in determining the composition of paint. Might you just briefly expand on that?
Mr. WHITEHURST. Yes. When I was taken out of Explosives, I was put in as a trainee in the paint analysis area. My supervisor, Jim Corby, had been really the foremost forensic paint analyst in this country for many years and he realized we were running into problems because the paint was changing and we were using the old techniques to analyze them. And what really turned out was we didn't have a very clearly written protocol and we don't have any documentation of having validated that protocol. That's to know that the answers we're getting out of it are correct. That doesn't mean they're wrong. It's just we don't know if they're right.
When Dawbert was—ruled on the Dawbert case in the Supreme Court—we ended up with it being sort of put in our face. You've got to say whether that what you're doing is reliable or not; before it was just peer review.
Page 103 PREV PAGE TOP OF DOC
Ms. JACKSON LEE. Let me get the rest of that in writing and ask this question so that you can answer it. All eyes were on Atlanta this past summer, and, of course, with Richard Jewel. My question is, How much lab work and lab participation was in the initial investigation dealing with the Richard Jewel matter?
Mr. WHITEHURST. I don't know that. I wasn't involved in that.
Ms. JACKSON LEE. And so you're not aware whether any lab analysis, or you're not, I guess, involved enough to know what lab analysis was utilized in that investigation? Would you say that there was lab analysis?
Mr. WHITEHURST. I know that there was a lab analysis, but I don't know what it was.
Ms. JACKSON LEE. And was it out of the Atlanta office or out of Washington, D.C.
Mr. WHITEHURST. Washington, D.C. is the only—that's the only lab we have.
Ms. JACKSON LEE. The only home?
Mr. WHITEHURST. Yes.
Page 104 PREV PAGE TOP OF DOC
Ms. JACKSON LEE. All right. Thank you.
Mr. MCCOLLUM. Thank you, Ms. Jackson Lee. Mr Chabot, you're recognized.
Mr. CHABOT Thank you, Mr. Chairman. In the interest of time, I'll keep my questions real brief. I just have a very brief question here.
Mr. Whitehurst, in your testimony here this morning, you stated that among the problems that you witnessed—there was pressure on scientists to change the contents of reports in order to bolster a prosecutor's case. Could you give any specific examples of that taking place?
Mr. WHITEHURST. Yes. In the World Trade Center case I had a report brought to me. We had detected some materials which were consistent with a particular type of explosive. However, they were also consistent with materials on your hand right now, and in sewage, and in a number of other things.
I had marked through—when the paper was handed to me—marked through the statements that gave the alternative explanations for the data and my supervisor told me that they, and I didn't know who ''they'' were, but ''they'' wanted me to take those statements out. He said he disagreed with that. But there wasn't a basis at all to take the statements out.
That was an example of—you know, what's—there's something out there called a ''scientific argument,'' which you can enter into if you get somebody coming at you that says, ''I don't want it,'' ''I don't want it.'' That kind of pressure is inappropriate.
Page 105 PREV PAGE TOP OF DOC
Mr. CHABOT You also mention in here that there was fabrication of data and misinterpretation of data. Are there any particularly egregious examples of that that you'd like to bring up at this particular hearing?
Mr. WHITEHURST. I think when I look at the IG report and the things that I've reported—overall, I have an understanding that if a man walks into a court of law and he testifies to something that he doesn't know anything about, he's got to get his testimony from some place. Do you know? I mean—well, you make it up. You want an answer? I'll give you an answer. You know, I don't have any data to base my answer on, but let me give you an answer.
So if you have a guy who's got a degree in English and goes into court and testifies about chemical analysis, though he's never had any background in chemical analysis at all, where is he getting that information? He's just—from my point of view—he must be just fabricating it right there in front of you.
Mr. CHABOT And my final question or point here is, in the time that you were serving in your capacity in the lab, and these various examples that you've talked about where either data was fabricated or people were bolstering prosecutors' cases, do you have a feel for how many of your colleagues were involved in that type of behavior versus the number who were doing their jobs appropriately and were dotting all the i's and crossing all the t's? I mean, was it a small number of people? Was it significant? Would you comment on that?
Mr. WHITEHURST. No, it was a small number of people. I understand at this point there's over 600 people in the laboratory. I could be wrong about that. But I think there were less than 10 people, you know, that were actually involved in some sort of getting outside the bounds of where they were supposed to be operating.
Page 106 PREV PAGE TOP OF DOC
Mr. CHABOT Do you know how many of those people are still there?
Mr. WHITEHURST. No, I haven't been there now since the 20th of January, sir.
Mr. CHABOT Do you know if any of them are still there? I mean, do you know that they're all gone?
Mr. WHITEHURST. I—you know, I understood—I read in the newspaper that there were four of us that were removed from our positions. I don't know where the other three—you know, I really don't know where they went to.
Mr. CHABOT Would you comment on the FBI's, the higher-ups' response to your allegations about this, as to whether they were interested in perhaps acting upon the evidence that you brought forth?
Mr. WHITEHURST. I think—I made allegations for quite a long time. I think this is very demonstrative of what you want to know. My—a training agent came online and in one of the first cases he worked he started running into the same problems I did and he went to the section chief and he came back from the section chief almost with tears in eyes and he says, ''That guy sat right there and told me that the people that I was complaining about have been stretching the truth in testimony in court for years.'' And that was the end of it.
Page 107 PREV PAGE TOP OF DOC
The problem going on inside those walls, sir, was very well-known. It's just—it's embarrassing and it was sort of out of control. They didn't seem to be able to control.
Mr. CHABOT OK. Thank you, gentlemen. I yield back the balance of my time.
Mr. MCCOLLUM. Thank you, Mr. Chabot. Mr. Wexler. You're recognized for 5 minutes.
Mr. WEXLER. Dr. Whitehurst, if I could just follow a question earlier with respect to your concern that there are people who have, in fact, been wrongfully convicted as a result of a mistake or inappropriate behavior on behalf of the crime lab, how many people are we talking about? A few? A dozen?
Mr. WHITEHURST. I don't know, sir. I—for a long time I didn't know any. I just knew that this has to have hurt somebody. And then the issue with Congressman Hastings came forward and it was, my gosh, it's surprising me that the first guy that was denied due process is now a U.S. Congressman, you know.
I'm beginning to hear and I read the media, the news stories about this, been getting indications, and there are some people that communicate with me through my attorney about issues. But we haven't settled those yet.
Page 108 PREV PAGE TOP OF DOC
Mr. KOHN. And just to clarify the record, my office has obtained some confidential communications from defendants whom were found, were—had been convicted—were found to be innocent, and it's under review and it looks fairly clear to us at this time that it was based upon improper lab work. Those defendants have asked for confidentiality and we hope to get an outside scientific review before that allegation goes forward.
Mr. WEXLER. OK, when you say those defendants were convicted and now found to be innocent—found to be innocent by the people—who?
Mr. KOHN. Yes, the charges were dropped by other circumstances; the real——
Mr. WEXLER. Oh, OK.
Mr. KOHN [continuing]. Criminals were surfaced after the convictions.
Mr. WEXLER. So those people are not sitting in prison today?
Mr. KOHN. No. No.
Mr. WEXLER. Are there people sitting in prison today that may fall under your category of concern?
Page 109 PREV PAGE TOP OF DOC
Mr. WHITEHURST. It remains a concern, sir.
Mr. WEXLER. OK. The OIG report concludes that along with the significant problems that you identified that you expressed unsupported allegations against many of your colleagues regarding perjury, fabrication, and conspiracy. Do you take exception to that finding?
Mr. WHITEHURST. You know, any law enforcement officer gets complaints all the time. I found myself in a position one day where three different senior agents—senior, excuse me, scientists—were telling me that another individual had committed perjury. They wouldn't repeat those allegations when I went forward with them. I can understand, as embarrassing as this is and as problematic as it is for anybody that comes forward, that people might not come forward.
Mr. WEXLER. Have you made any unsupported allegations?
Mr. WHITEHURST. No. What I did, sir, was to bring forward indications of misconduct. If I made allegations, I had a lot of data to go forward with them. But most often, my letters, if you ever get a chance to read them, if you haven't, say, ''This seems to be what's going on, but I don't know. I'm not an attorney. Could you guys look at this and give me some feedback? Because I can't get it in the FBI.''
Mr. WEXLER. Thank you.
Mr. MCCOLLUM. Thank you, Mr. Wexler. Mr. Hutchinson.
Page 110 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. Thank you, Mr. Chairman. I'll see if I can just ask a couple of questions.
Mr. Whitehurst, Mr. Alcorn indicated that he thought there should be consideration given to transfering authority for the laboratory to an independent agency. What is your view of that?
Mr. WHITEHURST. Sir, I've seen that view. I was—I'd like to go back to a period of history where I saw something like this happen before. I was in Vietnam for three years, and when the My Lai incident broke, some unit commanders took the guns away from their soldiers.
Forensic science is a tool of law enforcement. We've got to have it on our hands. There just has to be oversight of what's going on, because the pressures on law enforcement are extensive. You know, an Oklahoma City happens; we have got to find who did it. The pressure is there. And it's reasonable and it's human. If you take that lab too far away from the law enforcement agencies, it's going to start doing things that are not productive.
I think, with my experience, I'd like to see the labs remain with the law enforcement agencies, but I'd like to see very clear oversight, protocols developed and validated, that sort of thing, sir.
Mr. HUTCHINSON. What you're saying makes a tremendous amount of sense. I mean, investigative responsibilities are critical and that has to remain with the FBI or the law enforcement agency, at least it would appear to me. Are you satisfied with the accreditation process that the FBI has agreed to under the OIG's recommendation?
Page 111 PREV PAGE TOP OF DOC
Mr. WHITEHURST. As a first step, sir. Yes, I am.
Mr. HUTCHINSON. Thank you.
Mr. MCCOLLUM. Thank you, Mr. Hutchinson. And thank you, Dr. Whitehurst, Mr. Alcorn, and Mr. Kohn. We appreciate very much your coming to testify today.
Mr. ALCORN. Mr. Chairman, if I could just ask that the DOJ report ''Convicted by Juries, Exonerated by Science'' be made a part of the record of the proceedings.
Mr. MCCOLLUM. Without objection, it will be done, Mr. Alcorn.
[Information on file with the Subcommittee:]
Mr. ALCORN. Thank you.
Mr. MCCOLLUM. Thank you all very, very much, again, for coming to contribute today.
Our second panel consists of just one witness, but a very important witness, Michael Bromwich, who was confirmed as Inspector General of the Department of Justice in June of 1994. As such, Mr. Bromwich oversees the work of approximately 360 employees nationwide. His office has broad authority to conduct investigations into allegations of employee misconduct against the 100,000 employees of the Department of Justice, its contractors, and grant recipients. From 1983 to 1987, Mr. Bromwich was an assistant United States attorney in New York City prosecuting a number of matters ranging from white collar fraud to narcotics trafficking. From 1987 to 1989, he served as associate counsel in the Office of the Independent Counsel investigating the Iran-Contra matter. From 1989 to 1993, Mr. Bromwich was engaged in private practice, specializing in white collar criminal defense work. He received his bachelor's degree and master's degree in public policy, and his law degree, from Harvard University.
Page 112 PREV PAGE TOP OF DOC
We welcome you today, Mr. Bromwich. As you probably understand, I'm swearing all the witnesses today. So if you'd stand and raise your right hand, I'd appreciate it.
[Witness sworn.]
Mr. MCCOLLUM. Thank you. You may be seated.
You may proceed with your testimony today. Your entire written testimony will be entered into the record, without objection, and you may summarize any portion of it that you wish. Please proceed.
STATEMENT OF MICHAEL R. BROMWICH, INSPECTOR GENERAL, DEPARTMENT OF JUSTICE
Mr. BROMWICH. Thank you very much. Mr. Chairman, members of the subcommittee. Thank you for inviting me to appear before you today to testify about the investigation conducted by my office into allegations of wrongdoing and improper practices within certain sections of the FBI lab. The complex and technical subject matter of the issues under investigation made this investigation one of the most difficult ever undertaken by my office. My testimony today will briefly describe the background and process of the investigation, outline our conclusions, and describe our recommendations for changes at the FBI lab.
In late 1993 and early 1994, my office was conducting an audit of the FBI laboratory—forensic services in the FBI lab. When we became aware of certain general allegations about improper laboratory practices being made by Dr. Whitehurst, a Ph.D. scientist employed in the lab, these allegations were referred to the Investigations Division of the OIG, which conducted an initial preliminary investigation. This preliminary inquiry discovered evidence corroborating at least some of Dr. Whitehurst's allegations. At that point, I decided that a much more extensive investigation involving an investment of significant resources was warranted. That happened in July of 1995.
Page 113 PREV PAGE TOP OF DOC
It was clear to me that an investigation of scientific practices required the expertise of experienced forensic scientists. We conducted a search for individuals with international reputations who had expertise in the relevant scientific fields and in the operation of scientific labs. Ultimately, we were able to enlist the services of five internationally-renowned scientists to consult with us, including Mr. Nicholas Cartwright, the Officer in Charge of the Science and Technology Branch of the Royal Canadian Mounted Police; Dr. Paul Ferrara, the Director of the Division of Forensic Science for the Commonwealth of Virginia; Dr. Gerard Murray, the Principal Scientific Officer of the Forensic Science Agency of Northern Ireland, and one of the principal experts called in on IRA bombing cases; Mr. Douglas Lucas, the retired Director of the Centre of Forensic Sciences of the Province of Ontario; and Dr. Richard Schwoebel, the retired Director of the Surety Assessment Center of the Sandia National Laboratory in Albuquerque, New Mexico. These men spent countless hours reviewing files, interviewing witnesses, and reviewing and editing the OIG's investigative report. The Department of Justice, the Congress, and the American people owe them an immense debt of gratitude for their services in this matter.
In addition to the scientists, the investigative team consisted of four prosecutors of considerable experience, three of whom are Assistant United States Attorneys and one of whom is a trial attorney from the Department's Criminal Division, as well as OIG investigators and support staff.
The most intensive phase of the investigation took 18 months, required interviews of over 100 individuals, many of whom were interviewed more than once, and the review of over 60,000 pages of documents. The result was a 517-page report, released publicly on April 15, 1997, in which we detailed and analyzed the evidence we found, set forth our conclusions, and made recommendations for changes in laboratory practices.
Page 114 PREV PAGE TOP OF DOC
Mr. Chairman, if I may depart just for a moment from my prepared statement, I did hear the early part of the hearing and I heard Mr. Alcorn state that it was the result of lawsuits filed by his organization that the report was released on April 15. I can tell you, Mr. Chairman, that from the time we began our expanded inquiry in the summer of 1995, it was absolutely clear to me that this was to be a report that had to be publicly disseminated because the issues raised were of such extreme importance. It was never my intention, nor the intention of the Attorney General of the United States or the FBI, to keep the report secret. So that any suggestion that we had such an intention is completely unfounded.
Mr. CHABOT Sir, could you pull the mike a little closer?
Mr. BROMWICH. I'm sorry, sure.
Mr. MCCOLLUM. And I think the mike is on, but the light doesn't appear to be. You want to double-check to make sure that it is? No, there's the light.
Mr. BROMWICH. I have a loud voice, so it may have appeared to be.
Mr. MCCOLLUM. Thank you.
Mr. BROMWICH. In the report, we examined 18 specific cases, including some of the most significant prosecutions in the recent history of the Department, such as the Oklahoma City bombing case, the World Trade Center bombing case, the mail bomb assassination of the U.S. Circuit Judge Robert Vance, and the bombing aboard an Avianca Airlines jet. Despite the significance of these prosecutions and the potential impact of our investigation, Department officials were supportive of this office and our work on the investigation.
Page 115 PREV PAGE TOP OF DOC
After the completion of a draft report in January, the OIG solicited comments from the FBI and from prosecutors, primarily in the United States Attorneys' Offices, and from other lawyers who handled the cases we examined to ensure that no factual errors appeared in the draft report. Although we made some changes to the report in response to those comments, in most cases we did not make requested changes in the draft, and we explained our reasoning either in the final report or in a separate appendix that was publicly distributed that contains the responses and our replies to those responses.
Dr. Whitehurst ultimately submitted over 200 letters to the OIG setting forth allegations against many of his colleagues in the lab, as well as others in the FBI. His allegations implicated some of the most fundamental aspects of Federal law enforcement, including the reliability of the procedures employed by the laboratory to analyze evidence, the integrity of the persons engaging in that analysis, and the objectivity of the testimony given in cases by lab examiners.
His allegations primarily concerned practices in three units of the FBI lab—the Explosives Unit, the Materials Analysis Unit, and the Chemistry-Toxicology Unit. Accordingly, our investigation focused on those three units, although we did consider the work of some personnel in other units when we had specific information.
Our investigation did not substantiate the vast majority of the allegations Dr. Whitehurst made against laboratory examiners. Most significantly, the investigation did not substantiate Dr. Whitehurst's claims that examiners had committed perjury and fabricated evidence in various cases. However, we did find deficient practices in the lab and unprofessional conduct by several examiners. In a number of key instances, we found problems that Dr. Whitehurst had not raised, but that were discovered independently by our investigative team.
Page 116 PREV PAGE TOP OF DOC
We found significant instances of testimonial errors, substandard analytical work, and deficient practices. In several cases, we found instances of examiners giving scientifically-flawed testimony; that is, testimony that relied on speculation or collateral evidence to reach conclusions rather than on scientifically valid methods of analysis.
For example, in the case of United States versus Psinakis, the FBI explosives examiner reached the conclusion that tools found in the defendant's home contained residue of an explosive by relying in part on collateral evidence that was collected during a search of the defendant's garbage, rather than conducting appropriate scientific tests of the tools themselves. We specifically concluded that the examiner's work in the Psinakis case was inadequate and unprofessional.
In the case involving the bombing of an Avianca Airlines jet, we determined that the FBI explosives examiner's testimony regarding the type of bomb used was based on a theory that was scientifically unsound and beyond the examiner's expertise.
We found other instances of examiners giving inaccurate testimony. In a hearing conducted by the Investigating Committee of the Judicial Council of the Eleventh Circuit regarding then-judge Alcee Hastings, the lab examiner testified falsely that he had performed a certain scientific test, when in fact another examiner had performed the test, and he also testified inaccurately regarding the results and significance of the test.
In a death penalty case in Florida, another examiner, who was the chief of the Chemistry-Toxicology Unit, testified inaccurately on several points, including testimony about tests he had performed or the results of those tests.
Page 117 PREV PAGE TOP OF DOC
Three Explosives Unit examiners altered, omitted, or improperly supplemented some of Dr. Whitehurst's internal reports as they were being compiled into an official report of the lab. Some of these alterations or omissions resulted in material changes to Dr. Whitehurst's conclusions.
We also found instances of examiners giving testimony beyond their expertise, insufficient documentation of test results, and an inadequate record management system in the lab.
Although we found instances where examiners gave inaccurate or misleading testimony, we did not conclude that any examiner had committed perjury. This was not because the OIG investigators did not look for evidence of perjury. Indeed, all four attorneys leading the investigation were experienced prosecutors, as am I. In the Alcee Hastings matter, for example, we determined that the examiner had testified falsely. Nonetheless, after examining all of the evidence, we determined that there was insufficient evidence from which to conclude that the examiner in the Hastings matter, or any examiner in the other cases we looked at, intentionally lied or made a false statement while under oath. We have, however, and this is important, referred the entire investigative report to the Public Integrity Section of the Criminal Division for its review to determine whether further investigation or prosecution of any matter is warranted.
In addition to problems of specific examiners, we also noted numerous management deficiencies. The issues arising out of the case of United States versus Psinakis illustrate not only the failings of an individual examiner, but also systemic management failures. In 1989, an Assistant United States Attorney wrote to the laboratory strongly criticizing the conduct of the explosives residue examiner who testified for the government in the Psinakis case. Although the FBI conducted various reviews of the examiner's work in 1989, 1991, and 1995, the lab never adequately investigated or resolved the concerns about the examiner's work that were raised by the Psinakis prosecutor or by FBI scientists who performed the later FBI reviews. The lab's inability to resolve in a timely way serious and credible allegations of incompetence made against the examiner allowed the problem to fester for almost six years.
Page 118 PREV PAGE TOP OF DOC
Other management lapses included an inability to resolve scientific disagreements among lab examiners, a failure to establish procedures and protocols or to enforce existing ones, and a failure to establish a climate in which meaningful peer reviews were the norm. These management failures contributed substantially to the types of examiner problems that we documented in the report.
It is important not only to identify problems, but to prescribe solutions as well. We take that part of our mission very seriously. We made numerous recommendations that we believe will help the FBI lab move into the next century as an outstanding and world-leading forensic lab.
Our first recommendation was one already accepted by the FBI by the time we made it—that the lab pursue prompt accreditation by the American Society of Crime Laboratory Directors' Laboratory Accreditation Board. I know you have a witness from that board scheduled to testify in the panel after me.
The FBI's response to the OIG draft report acknowledged that ''the lab could and should have sought accreditation a decade ago,'' and we commend the FBI for now making such accreditation a top priority for the lab. Although accreditation should not be seen as a panacea for all the ills of the lab, the criteria used in the accreditation process should promote valuable and productive interchanges with other labs, as well as to assist the lab in modernizing policies and practices.
We also recommended in our report restructuring certain units in the lab, changing procedures for reporting results of scientific analyses, improving case documentation practices, developing and implementing a coordinated training program for examiners, and monitoring more closely the court testimony of examiners. The FBI has said it agrees with and intends to implement all of these recommendations.
Page 119 PREV PAGE TOP OF DOC
The systemic recommendations that we made in the report will help the lab avoid in the future the problems we encountered in the matters we had under investigation. We also made recommendations with respect to individuals, based on our review of their work, and as part of the organizational and cultural changes that should be undertaken by the FBI. These recommendations included transferring certain examiners and removing others from supervisory responsibilities. The FBI has referred all matters involving the discipline of agents criticized in the report to the Justice Management Division of the Department of Justice; that is, it will not be undertaken by the FBI, but by the Justice Management Division of the Department of Justice.
Since the release of the report, concerns have been expressed about our recommendations concerning Dr. Whitehurst, and I'd like to address those just for a moment. We concluded that Dr. Whitehurst could no longer effectively function in the lab and recommended that the FBI consider what role, if any, he could usefully serve in other components of the FBI. I want to assure you, Mr. Chairman and the other members of this subcommittee, that our conclusion and recommendation were not influenced in any way by any desire to ''shoot the messenger.'' Indeed, my organization depends on individuals like Dr. Whitehurst coming forward and providing information to us. Nonetheless, we are obligated to hold him to the same standards by which we evaluated other individuals in the lab. I can unequivocally say that it was Dr. Whitehurst's performance as a scientist and the manner in which he made sweeping, unsubstantiated allegations against numerous individuals that caused us to draw the conclusions that we did.
In assessing the FBI lab as a whole, it is important to bear in mind that we did not review the entire lab or the work of every examiner even in the units we did look at, and consequently, our findings should not necessarily be applied to other units or to all examiners in the lab. Indeed, we saw examples of superb work and encountered lab personnel dedicated to the highest traditions of forensic science.
Page 120 PREV PAGE TOP OF DOC
Our objective in the investigation was not only to review and resolve Dr. Whitehurst's allegations in a fair and impartial manner, but also to identify and comment on issues that should be addressed by the lab to achieve excellence in forensic science. We believe that full implementation of these recommendations, although requiring a significant commitment of time, effort, and resources, will bring the FBI closer to its goal of having one of the finest scientific labs in the law enforcement community—in the international law enforcement community.
Mr. Chairman, that concludes my prepared statement. I have one other comment to make based on submitted printed testimony and then I'm happy to answer any questions that you or other members of the subcommittee may have.
Mr. Chairman, I note that in the prepared testimony filed by Mr. Kohn on page 12 of his letter that begins his submission, at item No. 4, he says the following: ''One of the most disturbing revelations contained in FBI-released documents was correspondence between the FBI and DOJIG''—and the letter appears at Exhibit 18—''They reveal a high level of cooperation between the FBI and the IG. Instead of the independence Dr. Whitehurst had expected from the IG, the IG and FBI had entered into a secret deal, in violation of their own operating procedures, to allow the FBI full access to all of Dr. Whitehurst's letters, full access to the interviews of FBI employees, and a co-equal role in writing the final IG report, although only the IG's name would be on the report. These agreements were reached behind Dr. Whitehurst's back, and had they been known, Dr. Whitehurst would have ceased cooperating with the IG. Only the intense public pressure resulting from the public attention concerning the crime lab generated by the public disclosure of Dr. Whitehurst's allegations during the O.J. Simpson matter forced the IG to back off from the agreements with the FBI. However, the complete lack of written procedures and the failure to institute regulations required under the WPA allowed this collusion to occur.''
Page 121 PREV PAGE TOP OF DOC
Virtually every statement in that paragraph, Mr. Chairman, is false or materially misleading. In fact, there was a time when my office was investigating certain of Dr. Whitehurst's allegations and the FBI OPR continued to investigate some of Dr. Whitehurst's allegations. You will notice that the letter that appears at Exhibit 18 is dated, I believe, June of 1995. That was at a time before the corroborating evidence had been brought to my attention, which occurred in late July, and before I sought to take over the entire investigation.
What happened, Mr. Chairman, is when I found out about the corroborating information about Dr. Whitehurst's claims, under the Attorney General order that governs jurisdiction involving my office, FBI, OPR, and other internal misconduct organizations within the Department of Justice, I went to the Deputy Attorney General and said that I believed that we needed to conduct the entire investigation and that the investigative results would not be credible if the FBI did a part of the investigation.
The Deputy Attorney General asked me to talk directly with the Director of the FBI to find out whether he had any opposition to my taking over the entire investigation. I met with Director Freeh on August 2, 1995 and I told him of my conversation with the Deputy Attorney General, and I asked him whether he had any objection to our taking over the entire investigation. I pointed out to him, which he already knew, that some of Dr. Whitehurst's allegations were made against him personally in connection with the VANPAC investigation and the Moody prosecution. Director Freeh immediately agreed that we, that is, the Office of the Inspector General, should take over the entire investigation, although he offered any support that the Bureau could provide.
Page 122 PREV PAGE TOP OF DOC
From that point forward, Mr. Chairman, it was people under my leadership that conducted the entire investigation. The lawyers, the scientists, the investigators—none of them was FBI personnel; all of them worked directly for me. So the suggestion that there was ''collusion'' between my office and the FBI could not be more false.
[The prepared statement of Mr. Bromwich follows:]
PREPARED STATEMENT OF MICHAEL R. BROMWICH, INSPECTOR GENERAL, DEPARTMENT OF JUSTICE
Mr. Chairman and Members of the Subcommittee, Thank you for inviting me to appear before you today to testify about the investigation conducted by my office into allegations of wrongdoing and improper practices within certain sections of the FBI Laboratory. The complex and technical subject matter of the issues under investigation made this investigation one of the most difficult ever undertaken by my office. My testimony today will briefly describe the background and process of the investigation, outline our conclusions, and describe our recommendations for changes at the FBI Laboratory.
Background
In late 1993 and early 1994 my office was conducting an audit of the FBI Laboratory when we became aware of certain general allegations about improper laboratory practices being made by Dr. Frederic Whitehurst, a Ph.D. scientist employed in the Laboratory. These allegations were referred to the Investigations Division of the OIG, which conducted an initial, preliminary investigation. This preliminary inquiry discovered evidence corroborating at least some of Dr. Whitehurst's allegations. At that point I decided that a much more extensive investigation, involving an investment of significant resources, was warranted.
Page 123 PREV PAGE TOP OF DOC
It was clear to me that an investigation of scientific practices required the expertise of experienced forensic scientists. We conducted a search for individuals with international reputations, who had expertise in the relevant scientific fields and in the operation of scientific laboratories. Ultimately, we were able to enlist the services of five internationally renowned scientists to consult with us, including Mr. Nicholas Cartwright, the Officer in Charge of the Science and Technology Branch of the Royal Canadian Mounted Police; Dr. Paul Ferrara, the Director of the Division of Forensic Science for the Commonwealth of Virginia; Dr. Gerard Murray, the Principal Scientific Officer of the Forensic Science Agency of Northern Ireland; Mr. Douglas Lucas, the retired Director of the Centre of Forensic Sciences of the Province of Ontario, Canada; and Dr. Richard Schwoebel, the retired Director of the Surety Assessment Center of the Sandia National Laboratory in Albuquerque, New Mexico. These men spent countless hours reviewing files, interviewing witnesses, and reviewing and editing the OIG's investigative report. The Department of Justice, the Congress, and the American people owe them an immense debt of gratitude for their services.
In addition to the scientists, the investigative team consisted of four prosecutors of considerable experience, three of whom are Assistant United States Attorneys and one trial attorney from the Department's Criminal Division, as well as OIG investigators and support staff.
The most intensive phase of the investigation took 18 months, required interviews of over 100 individuals, many of whom were interviewed more than once, and the review of over 60,000 pages of documents.
Page 124 PREV PAGE TOP OF DOC
The result was a 517-page report, released publicly on April 15, 1997, in which we detailed and analyzed the evidence we found, set forth our conclusions, and made recommendations for changes in Laboratory practices. In the report, we examined 18 specific cases, including some of the most significant prosecutions in the recent history of the Department, such as the World Trade Center bombing, the mail bomb assassination of U.S. Circuit Judge Robert Vance, and the bombing aboard an Avianca Airlines jet. Despite the significance of these prosecutions and the potential impact of our investigation, Department officials were supportive of this office and our work on the investigation.
After the completion of a draft report in January, the OIG solicited comments from the FBI and from prosecutors (primarily in the United States Attorneys' Offices) and other lawyers who handled the cases we examined to ensure that no factual errors appeared in the draft report. Although we made some changes to the report in response to those comments, in most cases we did not make requested changes in the draft, and we explained our reasoning either in the final report or in a separate Appendix that contains the responses and our replies.
Allegations and Conclusions
Dr. Whitehurst ultimately submitted over 200 letters to the OIG setting forth allegations against many of his colleagues in the Laboratory as well as others in the FBI. His allegations implicated some of the most fundamental aspects of federal law enforcement, including the reliability of the procedures employed by the Laboratory to analyze evidence, the integrity of the persons engaging in that analysis, and the objectivity of the testimony given in cases by Laboratory examiners. His allegations primarily concerned practices in three units of the FBI Laboratory—the Explosives Unit, the Materials Analysis Unit, and the Chemistry-Toxicology Unit. Accordingly, our investigation focused on those three units, although we did consider the work of some personnel in other units.
Page 125 PREV PAGE TOP OF DOC
Our investigation did not substantiate the vast majority of the allegations Dr. Whitehurst made against Laboratory examiners. Most significantly, the investigation did not substantiate Dr. Whitehurst's claims that examiners had committed perjury and fabricated evidence in various cases. However, we did find deficient practices in the Laboratory and unprofessional conduct by several examiners. In a number of key instances, we found problems that Dr. Whitehurst had not raised but that were discovered by our investigative team.
We found significant instances of testimonial errors, substandard analytical work, and deficient practices. In several cases we found instances of examiners giving scientifically flawed testimony, that is, testimony that relied on speculation or collateral evidence to reach conclusions rather than on scientifically valid methods of analysis. For example, in the case of United States v. Psinakis, the FBI explosives examiner reached his conclusion that tools found in the defendant's home contained residue of an explosive by relying in part on collateral evidence that was collected during a search of the defendant's garbage rather than conducting appropriate scientific tests of the tools. We specifically concluded that the examiner's work in the Psinakis case was inadequate and unprofessional. In the case involving the bombing of an Avianca Airlines jet, we determined that the FBI explosives examiner's testimony regarding the type of bomb used was based on a theory that was scientifically unsound and beyond the examiner's expertise.
We found other instances of examiners giving inaccurate testimony. In a hearing conducted by the Investigating Committee of the Judicial Council of the Eleventh Circuit regarding then-judge Alcee Hastings, the Laboratory examiner testified falsely that he had performed a certain scientific test, when in fact another examiner had performed the test, and he also testified inaccurately regarding the results and significance of the test. In a death penalty case in Florida, another examiner, who was the chief of the Chemistry-Toxicology Unit, testified inaccurately on several points, including testimony about tests he had performed or the results of those tests.
Page 126 PREV PAGE TOP OF DOC
Three Explosives Unit examiners altered, omitted, or improperly supplemented some of Dr. Whitehurst's internal reports as they were being compiled into an official report of the Laboratory. Some of these alterations or omissions resulted in material changes to Dr. Whitehurst's conclusions.
We also found instances of examiners giving testimony beyond their expertise, insufficient documentation of test results, and an inadequate record management system in the Laboratory.
Although we found instances where examiners gave inaccurate or misleading testimony, we did not conclude that any examiner had committed perjury. This was not because the OIG investigators did not look for evidence of perjury. Indeed, all four attorneys leading the investigation were experienced prosecutors. In the Alcee Hastings matter, for example, we determined that the examiner had testified falsely. Nonetheless, after examining all of the evidence, we determined that there was insufficient evidence from which to conclude that the examiner in the Hastings matter, or any examiner in the other cases we looked at, intentionally lied or made a false statement while under oath. We have, however, referred the entire investigative report to the Public Integrity Section of the Criminal Division for their review to determine whether further investigation or prosecution of any matter is warranted.
In addition to problems with specific examiners, we also noted numerous management deficiencies. The issues arising out of the case of United States v. Psinakis illustrate not only the failings of an individual examiner but also systemic management failures. In 1989, an Assistant United States Attorney wrote to the Laboratory strongly criticizing the conduct of the explosives residue examiner who testified for the government in the Psinakis case. Although the FBI conducted various reviews of the examiner's work in 1989, 1991, and 1995, the Laboratory never adequately investigated or resolved the concerns about the examiner's work that were raised by the Psinakis prosecutor or by FBI scientists who performed the later FBI reviews. The Laboratory's inability to resolve in a timely way serious and credible allegations of incompetence made against the examiner allowed the problem to fester for almost 6 years.
Page 127 PREV PAGE TOP OF DOC
Other management lapses included an inability to resolve scientific disagreements among Laboratory examiners, a failure to establish procedures and protocols or to enforce existing ones, and a failure to establish a climate in which meaningful peer reviews were the norm. These management failures contributed substantially to the types of examiner problems that we documented in the report.
Recommendations
It is important not only to identify problems but to prescribe solutions as well. We made numerous recommendations that we believe will help the FBI Laboratory move into the next century as an outstanding and world-leading forensic laboratory. Our first recommendation was one already accepted by the FBI—that the Laboratory pursue accreditation by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. The FBI's response to the OIG draft report acknowledged that ''the Laboratory could and should have sought . . . accreditation a decade ago,'' and we commend the FBI for now making such accreditation a top priority for the Laboratory. Although accreditation should not be seen as a panacea for all the ills of the Laboratory, the criteria used in the accreditation process should promote valuable and productive interchanges with other laboratories, as well as to assist the Laboratory in modernizing policies and practices.
We also recommended restructuring certain units in the Laboratory, changing procedures for reporting results of scientific analyses, improving case documentation practices, developing and implementing a coordinated training program for examiners, and monitoring more closely the court testimony of examiners. The FBI has said that it agrees with and intends to implement all of these recommendations.
Page 128 PREV PAGE TOP OF DOC
The systemic recommendations that we made in the report will help the Laboratory avoid in the future the problems we encountered in the matters we investigated. We also made recommendations with respect to individuals based on our review of their work and as part of the organizational and cultural changes that should be undertaken by the FBI. These recommendations included transferring certain examiners and removing others from supervisory responsibilities. The FBI has referred all matters involving the discipline of agents criticized in the report to the Justice Management Division of the Department of Justice.
Since the release of the report, concerns have been expressed about our recommendations concerning Dr. Whitehurst. We concluded that Dr. Whitehurst could no longer effectively function in the Laboratory and recommended that the FBI consider what role, if any, he could usefully serve in other components of the FBI. I want to assure the Subcommittee that our conclusion and recommendation were not influenced in any way by any desire ''to shoot the messenger.'' Indeed, my organization depends on individuals like Dr. Whitehurst coming forward and providing information to us. Nonetheless, we are obligated to hold him to the same standards by which we evaluated other individuals in the Laboratory. I can unequivocally say that it was Dr. Whitehurst's performance as a scientist and the manner in which he made sweeping, unsubstantiated allegations against numerous individuals that caused us to draw the conclusions that we did.
In assessing the FBI Laboratory as a whole, it is important to bear in mind that we did not review the entire Laboratory or the work of every examiner in the units that we did look at, and consequently our findings should not necessarily be applied to other units or to all examiners in the Laboratory. Indeed, we saw examples of superb work and encountered Laboratory personnel dedicated to the highest traditions of forensic science.
Page 129 PREV PAGE TOP OF DOC
Our objective in the investigation was not only to review and resolve Dr. Whitehurst's allegations in a fair and impartial manner, but also to identify and comment on issues that should be addressed by the Laboratory to achieve excellence in forensic science. We believe that full implementation of these recommendations—although requiring a significant commitment of time, effort, and resources—will bring the FBI closer to its goal of having one of the finest scientific laboratories in the law enforcement community.
That concludes my prepared statement. I will be happy to answer any questions that you may have.
Mr. MCCOLLUM. Thank you very much, Mr. Bromwich. We will now go to a question period. I think you very accurately and technically walked through that dating issue. I yield myself 5 minutes. We'll try to abide by the 5-minute rule with probably only one round of questions because of the time.
First of all, Dr. Whitehurst has raised allegations of misconduct on the part of FBI Director Louis Freeh. Did you substantiate any of those allegations, Mr. Bromwich?
Mr. BROMWICH. No, we did not. There were specific allegations against Director Freeh in connection with his role as a prosecutor in the VANPAC investigation and the Moody prosecution. We did not substantiate any of those allegations.
Mr. MCCOLLUM. Your investigation, as you've said, has only concentrated on three of the thirty-five units within the FBI laboratory. Is there any way you can know from your investigation whether or not the same type of problems you found were limited to just those three or whether they were more broadly-based?
Page 130 PREV PAGE TOP OF DOC
Mr. BROMWICH. No, we can't tell based on the work that we have done. We did focus on the three sections of the lab, because those were the only sections of the lab for which we had specific allegations. I am comforted to a substantial extent by the fact that the accreditation process is going to be going forward and going forward promptly. I think that accreditation process with what it entails—that is, bringing in forensic scientists from other labs to take a comprehensive view of the lab, not just the three sections we looked at, but the many sections we didn't—means that if there are such problems that exist in those other sections, the greater likelihood is that they will surface.
Mr. MCCOLLUM. Do you have the authority or the resources to investigate all of the remaining 32 units or divisions of the laboratory?
Mr. BROMWICH. I don't have the resources to do it. I think I could get the authority to do it as an expansion of this investigation. I, frankly, don't view that as an optimal use of either my resources or the resources of the Department of Justice. We did a very intense review of these three sections of the lab. We made certain systemic findings and recommendations that we generalized to the entire lab. The FBI has embraced all 40 of those recommendations and I don't believe—in the absence of specific allegations—I don't believe it is appropriate for us or any other body to go running in right now and start crawling around other sections of the lab.
Mr. MCCOLLUM. Your entire report, of course, is highly critical of those three units. Putting it in context, can you give us an evaluation of the overall performance of the FBI lab? Does this mean it's rotten to the core? Is that the contention of your report?
Page 131 PREV PAGE TOP OF DOC
Mr. BROMWICH. Our report does not say, nor should it suggest, that the FBI lab is rotten to the core. Far from it—we believe it is a good forensic lab, as things stand now. We think that, with the recommendations that we have made that have been embraced by the FBI and through going through the very rigorous accreditation process, that a good lab will be made far better.
Mr. MCCOLLUM. In terms of the FBI's relationship with your office, this letter, obviously, was disturbing—even if it was dated in June and even though your explanation has been good about it. Where it says, ''Subsequent to the conclusion of all investigations, our offices will collaborate on the jointly-prepared report which will be written as an Office of the Inspector General document,'' I find that to be somewhat offensive, even though you went on and became very independent in your work product after that.
Mr. BROMWICH. I find it offensive too, Mr. Chairman. I was not aware of that letter. And had I been made aware of it, I would have immediately instructed the FBI that that is not the way we were going to proceed.
Mr. MCCOLLUM. And the other question I have has to do with the Office of Professional Responsibility. Do you believe that you generally have sufficient opportunities to do the external review of the FBI that you would like to do or that should be done, or do we defer all too often to the Office of Professional Responsibility to do it?
Mr. BROMWICH. I have a view, Mr. Chairman, that I've stated publicly before and that I'll state publicly again: with respect to powerful public institutions like the FBI that play major roles in our national life, it is important to have external review. And I think that means external review by the Congress, but it also means Executive Branch external review. And we are the entity best situated to do that. Given the current configuration of the entities within the Department that do internal misconduct matters, we do very little investigation into allegations of misconduct against FBI personnel. I don't have the resources to do it, even if the jurisdictional orders read differently than they do.
Page 132 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. Do you believe you should have the resources and jurisdiction?
Mr. BROMWICH. Yes.
Mr. MCCOLLUM. Would it be better government?
Mr. BROMWICH. Yes, I think so.
Mr. MCCOLLUM. The FBI has stated it doesn't believe that full-scale, external inspections of segments of the lab should be done at 5-year intervals because it would unduly interrupt lab operations. Do you agree or disagree?
Mr. BROMWICH. I disagree with that. And I'm not sure that is still their position, given their commitment to the accreditation process and the periodic reviews that that accreditation process requires.
Mr. MCCOLLUM. The last question I have for you: There has been some raising of the question of the Congressman Alcee Hastings situation. Did you explore that in the context of this investigation? Did that Hair and Fiber Unit, Mr. Malone, and all the questions raised by The Wall Street Journal piece get covered by your work product? Or is that something beyond the scope of what you did? I would like for you to explain to me what you did and didn't do with the Hastings matter.
Page 133 PREV PAGE TOP OF DOC
Mr. BROMWICH. That's fine. The Hastings allegation we did investigate and we investigated fully. And it is presented fully in our report. We were not aware of the other allegations against Mr. Malone until The Wall Street Journal article, which I believe was either published the day after or two days after our report was published. We had no knowledge of those matters and therefore we did not investigate them. So all that we looked at in terms of Mr. Malone was the one allegation that we had in the Hastings case, which we did investigate fully and we did find that Mr. Malone engaged in misconduct.
Mr. MCCOLLUM. Then you did not do a thorough review of that unit? That was the fourth unit referred to by Dr. Whitehurst.
Mr. BROMWICH. That's correct. We did not do really any review of that unit other than the review entailed in pursuing that particular allegation.
Mr. MCCOLLUM. Do you have any plans to do further reviews, or to make requests to do them?
Mr. BROMWICH. We don't right now. Again, my view is that we would all be better served by allowing the Bureau to try to seek as rapidly as possible the implementation of our recommendations and to seek prompt accreditation by ASCLD. If, in the course of any of those reviews, there are specific allegations that warrant investigation, I would certainly give serious consideration to doing so.
Mr. MCCOLLUM. Lastly, because I don't want to come around for another round of questions, on April 14, just one day before your report was released, President Clinton directed the Attorney General to establish appropriate processes within the Department of Justice to ''carry out the functions'' vested in the President in the Whistleblower Protection Act of 1989. The question is, Why didn't the Department of Justice establish these procedures before this point?
Page 134 PREV PAGE TOP OF DOC
Mr. BROMWICH. I don't know the answer to that, Mr. Chairman.
Mr. MCCOLLUM. All right. Thank you very much. Thank you, Mr. Bromwich.
Ms. Jackson Lee, you're recognized for 5 minutes.
Ms. JACKSON LEE. Thank you very much. And thank you for your testimony.
Can you tell me why so long—as I understand Dr. Whitehurst's testimony—these issues of concern he raised starting in 1986, and as I understand, your investigation began in 1994 or 1995. So why did it take so long for the involvement of the OIG in this issue?
Mr. BROMWICH. We didn't exist until the spring of 1989. My office was created through the Inspector General Act amendments of 1988. And my organization opened its doors in the spring of 1989. We——
Ms. JACKSON LEE. Still, my question is, Why so long?
Mr. BROMWICH. We don't have—we have very limited jurisdiction, as I tried to indicate in my responses to the chairman's question, to investigate internal misconduct matters within the FBI, and the answer is that I'm not aware that anybody in my organization had knowledge of Dr. Whitehurst's allegations until they surfaced in the course of our Forensic Services' audit in 1993. I don't think Dr. Whitehurst suggests that he or anyone else brought those allegations to our attention before late 1993, early 1994.
Page 135 PREV PAGE TOP OF DOC
Ms. JACKSON LEE. And in your opinion, or in your assessment, would there not have been anyone else in the Department of Justice that could have appropriately investigated this matter, inasmuch as your doors opened about 1989? Would there have been any other procedures that could have been utilized to get this information forward and to have the least amount of damage on the justice system that we now are facing at this point?
Mr. BROMWICH. There has been, since 1974, an Office of Professional Responsibility within the Department of Justice, separate and apart from FBI's internal Office of Professional Responsibility, and some matters over the years have been undertaken by that Office of Professional Responsibility, frequently in tandem with the FBI's Office of Professional Responsibility. DOJ's OPR does not have its own investigating agents and therefore must rely on FBI agents. My situation is very different. I've got my own agents.
Ms. JACKSON LEE. Why—I guess, what I'm trying to determine is where we might have corrected it from that perspective—is that to investigate it earlier, and possibly, why didn't OPR find out about it and be able to provide assistance?
Mr. BROMWICH. I can't answer that question, Congresswoman, I'm sorry.
Ms. JACKSON LEE. In your report, you mention several points, if I might recount them: that the lab was determined to have had scientifically flawed and inaccurate testimony or maybe those participating in the lab's outright fabrication of test results, inadequate or non-existing record-keeping in test result documentation, and failure by management to resolve serious and credible allegations of incompetence.
Page 136 PREV PAGE TOP OF DOC
In a note or a paragraph that you make in citing Mr. Hastings' situation, you note in particular that there was no—if I have it correctly—intentionally—no one intentionally lied or made false statements under oath. Just moving beyond those facts, circumstances, even if one did not lie intentionally or make false statements under oath, there is still the potential for damage to existing cases. And so that minor clarification does not in any way take away from the seriousness of the impact on some of the cases that might have been tainted by these investigations.
Mr. BROMWICH. That's entirely correct.
Ms. JACKSON LEE. And is that clear in your report? Because I see the qualifier of your statement, and being that your report is very extensive, I'm not sure whether you also qualified it in the report.
Mr. BROMWICH. I think we do make it clear in the report. If it's insufficiently clear, I aim to make it clear now. What we do not seek to do in the report is to try to assess the particular damage that may have been done within the context of the specific cases that we have examined. That's not something that we should be doing and given the extensive trial records that exist in many of these cases, I don't think it's something that we could have done.
So what we aimed to do was to investigate as thoroughly as possible the specific misconduct allegations against the individuals and to say as straight as we possibly could what our findings were on them. But we do not seek to minimize our findings. I think that the findings in here are very powerful and very critical of many aspects of the work that was done.
Page 137 PREV PAGE TOP OF DOC
Ms. JACKSON LEE. Well, first of all, I think it's very important that you raised the issue of the accreditation and I appreciate that, but I wanted to make sure that we clarified that very finite distinction, under oath, there is still damage.
Let me follow up by also commenting on your statements regarding Dr. Whitehurst. And I'm not even going to suggest—I think they were—you attempted to politely—and this is in your testimony—couch them in polite terms. But I would beg to differ and believe that you have in fact killed the messenger. You're suggesting that there was a level of incompetence on the part of Dr. Whitehurst, and correct me if I'm wrong, that he can no longer effectively function in the laboratory and that you recommended that he be put in another role and responsibility. That really concerns me. And I'd also like to ask as to whether or not you looked at the fact that the Whistleblower Act was not implemented and seemingly could not protect Dr. Whitehurst. Was that part of your report as well? But I'm very concerned about statements made by Dr. Whitehurst.
Mr. BROMWICH. Let me—even with the light on, I'd like to give her as full an answer as I possibly can. We did not look at the Whistleblower Protection Act aspect of this. But let me turn to your other concerns. We tried to be as balanced as we could. And we are at some pains in our report to specifically credit Dr. Whitehurst for his courage, his perseverance, and his tenacity in continuing to bring these allegations to the attention of people within the FBI for years, and then ultimately to us. I think he deserves a tremendous amount of credit for that. I don't think that giving him that credit ought to disassemble our critical faculties and prevent us from properly evaluating both Dr. Whitehurst's own scientific work and the allegations that he made against his colleagues. He, in essence, accused his colleagues in the lab of being criminals, perjurers, fabricators of evidence, fabricators of testimony, obstructors of justice, suppressors of exculpatory material. It is one thing to bring factual matters to the attention of an entity like mine, and that is what we credit Dr. Whitehurst for doing, but the labels that he attached to them and the terms in which he condemned his colleagues are just without any evidentiary support.
Page 138 PREV PAGE TOP OF DOC
The people in the lab, because they were interviewed, because there's a grapevine of knowledge in the lab, they know what Dr. Whitehurst has said about them. They know that he has accused them of being criminals. When we see those allegations and we made our findings that none of those allegations was supported, that is what led us to the view that Dr. Whitehurst could not effectively function in the lab any longer. Dr. Whitehurst admits that as a result of his allegations there are substantial—or were when he was still in the lab—substantial tensions between him and other examiners.
Ms. JACKSON LEE. So it was from that perspective, a discomfort because of the accusations being made, that you made this conclusion?
Mr. BROMWICH. Yes.
Ms. JACKSON LEE. Thank you.
Mr. MCCOLLUM. Thank you, Ms. Jackson Lee. Mr. Barr. You're recognized for 5 minutes.
Mr. BARR. Thank you, Mr. Chairman.
Mr. Bromwich, I know that the work that brings you here today concerns primarily the—or maybe exclusively—the allegations by Mr. Whitehurst and these concern, I think, three components of the FBI lab—the Explosives Unit, the Materials Analysis Unit, and the Chem-Toxicology Unit. And you've gone through, both in your verbal testimony and in your written testimony, some specific matters that you've looked into with regard to specific cases.
Page 139 PREV PAGE TOP OF DOC
This subcommittee currently has scheduled for a week from today some additional hearings focusing specifically on the Centennial Olympic bombing case in Atlanta. During the course of your review of the allegations in this case, have you come across anything, either directly or indirectly, that would indicate problems with regard to the investigation thus far in the Centennial bombing case?
Mr. BROMWICH. No, we have not. Just so you know, Mr. Barr, I actually met, within the last two weeks, with the current U.S. Attorney for the Northern District of Georgia (I know it is the office you used to hold) Mr. Alexander, who sought my advice and suggestions on how to deal with various issues relating to forensic science in the lab. So my impression is that he's being extremely responsible and trying to make sure that the work that's done in that case, in the Olympic Park bombing case, does not suffer from some of the same infirmities that we discovered in the cases that we reviewed.
Mr. BARR. Good. Thank you. Now, I know that you have no vested interest in the bureaucracy at the crime lab or its structure or its functioning. With that in mind, let me ask you the following question: The most serious findings of misconduct seem to have occurred within the explosives unit at the lab, and you recommend a significant restructuring of the Explosives Unit, including transferring its responsibility for crime scene management to components outside the scientific analysis section at the lab. Have you given any consideration and do you have any opinion on a different approach, and that would be to transfer it to another to another Federal agency such as ATF, the lead or perhaps exclusive jurisdiction as a Federal agency to investigate cases in which explosives have been used or appear to have been used?
Page 140 PREV PAGE TOP OF DOC
Mr. BROMWICH. Mr. Barr, we didn't consider that. Our focus was limited to the FBI lab. I believe that with the implementation of the recommendations that we've made and with the accreditation process, there is no reason to believe the FBI cannot do the kind of work in explosives that it has done in the past. I don't have a view on whether it's a good policy judgment to make such a transfer to ATF but I don't see any need for it based on what we reviewed. And just to underscore the obvious, we didn't look at ATF's lab in our investigation at all.
Mr. BARR. OK. In addition to the failings of specific examiners, you also find that there were systemic management failures that affected the work performed in the three units—Explosives, Materials Analysis, and Chem-Toxicology. Wouldn't these same management problems have affected the work of the other units within the same section of the lab or within the entire lab division?
Mr. BROMWICH. That's a good question. There's not a simple answer to that. We think that flaws like an inadequate case management system, improper documentation of reports, may carry over to other sections of the lab. We just don't know because we didn't look at those. And that is why we couched our recommendations in more general terms, because we had a sense that if we found, for example, poor record management retention policies, poor case management, and so forth, that that was more than likely not just limited to those three sections of the lab, but might exist lab-wide. And that's why we really exceeded the scope of the three sections when we came to make our systemic recommendations. Those recommendations have been made as to the entire lab and they have been embraced by the FBI as to the entire lab.
Mr. BARR. OK. Thank you.
Page 141 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. Thank you, Mr. Barr. Mr. Wexler. You're recognized for 5 minutes.
Mr. WEXLER. Thank you, Mr. Chairman.
Mr. Bromwich, I certainly respect your integrity and the effort that you and those who joined with you put forth with respect to the preparation of this report.
Mr. BROMWICH. Thank you.
Mr. WEXLER. I'm troubled, however, by what I think I understand the logic to be in some of the conclusions and also troubled with respect to what may have been an incomplete response, because you didn't have time, to Ms. Jackson Lee's question. Let me quote the report, as it relates to Dr. Whitehurst. Most significantly, I quote: ''The investigation did not substantiate Dr. Whitehurst's claims that examiners had committed perjury and fabricated evidence.''
Going down to the next paragraph, I quote: ''We found significant instances of testimonial errors, substandard analytical work and deficient practices.''
And I quote, again, the following page, the conclusion that ''three executive unit examiners altered, omitted, or improperly supplemented some of Dr. Whitehurst's internal reports as they were being compiled into an official report of the laboratory. Some of these alterations or omissions resulted in material changes to Dr. Whitehurst's conclusions.''
Page 142 PREV PAGE TOP OF DOC
With all due respect, let's go back to the first sentence: ''The investigation did not substantiate Dr. Whitehurst's claims that examiners had committed perjury and fabricated evidence.'' What is improperly supplementing reports? What is omissions? What are altercations [sic] that do not then amount to fabricating evidence?
Mr. BROMWICH. As you know, Mr. Wexler, perjury is a crime. And that is the crime of lying under oath with the intent to lie under oath. It is not a matter of misstating evidence by mistake. It is not a matter, because of lack of scientific knowledge or sophistication, going beyond the bounds of your expertise. It is flat-out lying, making statements that say ''A'' when you know ''not-A'' is true, or when you know ''B'' is true. So there is I don't believe, with all due respect, any inconsistency. But we are saying that we found no perjury and no fabrication of testimony, while at the same time making very specific and pointed criticisms of the conduct that was engaged in by a number of examiners in the lab. We chose those words carefully, both in what we said our proof didn't support and in what we said it did support.
Mr. WEXLER. I took very keen notice of the distinction between what may be the proof required for establishing perjury and what I thought—and maybe I misunderstood the sentence—fabricating evidence is. Is fabricating, fabricating evidence a specific crime?
Mr. BROMWICH. Pardon me?
Mr. WEXLER. Is fabrication of evidence a specific crime?
Page 143 PREV PAGE TOP OF DOC
Mr. BROMWICH. No, but it would constitute obstruction of justice.
Mr. WEXLER. OK. And am I not reading the sentence correctly? It says, ''did not substantiate Dr. Whitehurst's claims that examiners had committed perjury''? I understand your conclusion with respect to perjury, but the second part of the sentence, quite damning as it is to Dr. Whitehurst, ''and fabricated evidence''——
Mr. BROMWICH. We did not find that examiners in the lab, quote, ''fabricated evidence.''
Mr. WEXLER. And I assume that to be the case because these reports that were altered, omitted, or improperly supplemented were not then used as evidence?
Mr. BROMWICH. It's two things. Either they were not used as evidence or the changes—fabricating evidence, as I said, constitutes the crime of obstruction of justice—and, again, you require the element of intent. Did this person by this conduct mean in fact to make up evidence, as opposed, maybe even unconsciously, to stretching the limits of what the science permits?
Mr. WEXLER. If I may, then, you seem to get quite agitated with respect to Dr. Whitehurst's assertions with respect to certain members of the FBI, that they in fact engaged in criminal behavior. What were the motives, then, of the unit examiners as they fabricated, altered, and modified his reports? What were their motives?
Page 144 PREV PAGE TOP OF DOC
Mr. BROMWICH. I don't know what their motives were, sir.
Mr. WEXLER. But you've concluded that it wasn't an ''intentional'' motive.
Mr. BROMWICH. We found no evidence that they intentionally—that they had made the changes or alterations they did with the specific intent necessary to make them guilty of obstruction of justice or perjury.
Mr. WEXLER. If their intent wasn't criminal, then what legitimate law enforcement purpose would their be to alter, omit, or supplement someone's report?
Mr. BROMWICH. What a number of the witnesses said, Mr. Wexler, was that the dictations, or that is, the preliminary reports that they got from Dr. Whitehurst were unreadable or incoherent. And so they changed them. Now, we didn't take those claims at face value and the changes tended to be of a particular sort, but it doesn't support the suggestion that you're making.
Mr. WEXLER. Well, you use the—if I may, Mr. Chairman—you use the adjective ''material'' changes, not just changes, ''material'' changes.
Mr. BROMWICH. And the specific kinds of changes that we have in mind were from saying that the discovery of a substance was ''consistent with'' a chemical or a compound to the evidence was ''identified as'' something. So that is what we view as a material difference, and we stated it as material because we didn't think it was appropriate to minimize what they had done. It still doesn't amount to a crime.
Page 145 PREV PAGE TOP OF DOC
Mr. WEXLER. Last question: All of these changes that were made because they apparently couldn't decipher Dr. Whitehurst's writing—and I apologize if I've mischaracterized your statement—but did you ever find any of those changes made to disfavor the prosecution's position?
Mr. BROMWICH. We did not, to my recollection.
Mr. WEXLER. So these changes always happened to favor the prosecution's position?
Mr. BROMWICH. I think that's right. I think there was one exception.
Mr. WEXLER. Mr. Bromwich, with all due respect, isn't that a little coincidental?
Mr. BROMWICH. The report was written——
Mr. WEXLER. Doesn't that get to the motive of the person doing it?
Mr. BROMWICH. It suggests things about motives of the person doing it and I don't deny for a moment that there may have been pressures within the lab to push evidence to the limits. That's something that we discussed at great length in the report.
Page 146 PREV PAGE TOP OF DOC
I am reminded that not all of the changes favored the prosecution. Some of the issues we discussed were very technically complex and I think my statement agreeing with your suggestion that they all favored the prosecution was incorrect.
Mr. WEXLER. OK. Thank you.
Mr. BARR. OK. I thank the gentleman from Florida. The gentleman from Alabama, Mr. Hutchinson, is recognized.
Mr. HUTCHINSON. Thank you.
Mr. BARR. Arkansas.
Mr. HUTCHINSON. Going to your report, Mr. Bromwich, I want to refer to page 4, and you can recall your testimony, but in one place you indicated that after the draft report was made in January, you solicited comments from the FBI and from prosecutors, and also other lawyers who handled cases. Did this include defense attorneys that you solicited input from on the evaluation of the crime laboratory?
Mr. BROMWICH. It did not, by and large, Mr. Hutchinson, because we were interested in people who had had firsthand contact with the people who had conducted the science. I think the one exception to that is that we did, with respect to the Hastings matter, speak with both Mr. Hastings himself and his counsel—I think it's Mr. Anderson, Terry Anderson. So that was the one exception to it. But, by and large, we did not talk to defense counsel.
Page 147 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. In your discussions with the prosecutors—I assume most of these were Assistant United States Attorneys—was the information they provided to you generally supportive? Were they critical of your draft report? Or what was their reaction to your draft report?
Mr. BROMWICH. They submitted—actually, it's a matter of public record. We published a separate volume of the responses, the written responses that we got from the prosecutors and the other lawyers who were involved in the cases that we examined. And then we, in the same volume, we published our reply to those responses. And there really was very little, if any, interaction between my office and theirs, other than what's on paper.
In general—in general, they took issue with some of the factual assertions that we made in our report, sometimes based on their more detailed knowledge of the record of their cases. Sometimes we just agreed to disagree with them.
Mr. HUTCHINSON. I would think that if you contacted the United States Attorney's office and asked them what kind of job and what experience have you had with the FBI crime laboratory, that they would generally be very supportive and say that, by and large, 99 percent of the time they do excellent work, and so on. Is that the kind of response you got or not?
Mr. BROMWICH. We did it on the basis of specific cases. I can tell you from my own experience as a prosecutor that that certainly was the general view in my office of the people from the FBI lab who we got to testify as our witnesses. We had very high collective regard for their abilities and the work that they did.
Page 148 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. And that has been my experience as well. You don't know my background, but I was a United States Attorney.
Also in your report you referred to different instances in which various lab experts gave inaccurate testimony. You also cited a number of specific examples, one of them was a case in which they included collateral evidence that they should not have examined, and one of them involved improperly supplementing some of their reports. In any of these instances, did you find examples of where a supervisor would have pressured a witness or an examiner that might have influenced their testimony?
Mr. BROMWICH. We didn't find that.
Mr. HUTCHINSON. All right. So it is sort of a self-motivation among the examiners that they simply went a little bit too far and made conclusions they should not have made?
Mr. BROMWICH. That's generally what we found, yes.
Mr. HUTCHINSON. But you find no examples of where a supervisor would have told them to do this or pressured them to do this?
Mr. BROMWICH. We did not.
Mr. HUTCHINSON. Did you ever find any example of an Assistant United States Attorney ever pressuring an examiner to alter the testimony?
Page 149 PREV PAGE TOP OF DOC
Mr. BROMWICH. We did not.
Mr. HUTCHINSON. Now, lastly, in your report you state that the FBI has agreed to pursue accreditation with the American Society of Crime Laboratory Directors. And I was just curious, why has this never been done before?
Mr. BROMWICH. It's a good question and I think it's probably a complicated answer and I know you have two people from the FBI on the next panel. They could probably give a fuller answer than I'm able to give. Interestingly, the FBI has participated, since the inception of ASCLD, in various aspects of its activities. And yet for, I think for the 18 years that it has been in existence, the FBI made no move to seek accreditation. I think that may be part of the culture of the FBI that, if I may say, historically, has resisted external review. But I think you can get a fuller answer from the FBI witnesses who follow me.
Mr. HUTCHINSON. Is this the best accreditation board that we can pursue accreditation with?
Mr. BROMWICH. I think it is the best one that I know of. I don't claim extensive knowledge, but I do know enough to know that it is a very thorough accreditation process and one that should give Congress and the American people confidence, assuming the FBI is, in fact, accredited.
Mr. HUTCHINSON. Thank you. Thank you, Mr. Chairman.
Page 150 PREV PAGE TOP OF DOC
Mr. BARR. The gentleman from North Carolina, Mr. Coble, is recognized for 5 minutes.
Mr. COBLE I thank the Chairman. Mr. Bromwich, I apologize to you. I had to be at other meetings while you were testifying, and I have not yet mastered being at three places simultaneously. So with your permission, I'm going to revisit an issue raised when Dr. Whitehurst was with us. It is my belief, Mr. Bromwich, that there's probably not a single Federal agency in existence that is not guilty of reckless spending, because they're spending money that belongs to others.
Mr. BROMWICH. Except my agency, of course.
Mr. COBLE Your agency may be the lone exception, Mr. Bromwich, but the point is they're spending money that belongs to others. I can spend your money; you can spend mine. That's the premise. I can't prove it scientifically, but common sense tells me that.
Common sense furthermore tells me that there would be more whistleblowers who could step forward, and their testimony would probably result in reduced reckless spending, but they fear retaliation. Now, it is my belief that every whistleblower who has come forward probably has felt the painful imposition of retaliation in one way or another. Now, Mr. Bromwich, you may not be able to, but can you confirm or reject my conclusion?
Mr. BROMWICH. I can reject it in part, because we looked very closely at Dr. Whitehurst's specific allegations of retaliatory measures that were taken against him from 1989 through 1995, and we determined that there were good and sufficient reasons for the various steps that had been taken, such that we did not believe any of them constituted retaliation.
Page 151 PREV PAGE TOP OF DOC
Now, I do believe that the fear and threat of retaliation do discourage whistleblowers from coming forward. That's why we consider the well-being of whistleblowers to be a very important issue. My organization and other Inspectors General rely on that kind of information, but we don't assume retaliation, and when we have specific allegations of it, we do our very best within our scarce resources to, in fact, investigate those claims.
If you examine the lengthy chapter we have in our report that focuses specifically on Dr. Whitehurst's allegations of retaliation, I think you'll see that we did not simply give the allegations the back of our hand. Far from it. We subjected them to very close and extended scrutiny.
Mr. COBLE. I want to revisit an issue my friend from Florida raised, and prior to Mr. Wexler's having raised it, the chairman himself, also from Florida, got into this. The Chairman—and I'm paraphrasing now—he was concerned that the lab may have just been a mere extension of the U.S. Attorney's office. You know, we have this guy here; he's accused of A, B, and C. ''Let's nail him; Mr. Lab, you do your work; get it back to us as quickly as you can.'' Mr. Wexler has more or less charted that same course, and, sir, if there's any truth to this, it greatly disturbs me. Now, I'm not here, Mr. Chairman, to defend guilty defendants; I want to nail them, but if there's a defendant who is, in fact, not guilty, I don't want him nailed as a result of inaccurate and imperfect documentation that comes—as I said before—that comes down from Mt. Olympus as though it's impeccable, and don't dare—you don't dare challenge that. Now, am I some screwball, off-the-wall with these sort of concerns?
Mr. BROMWICH. No, you're not, but as I——
Page 152 PREV PAGE TOP OF DOC
Mr. COBLE. Thank you. I was afraid you might say yes. [Laughter.]
Mr. BROMWICH [continuing]. But as I responded to Mr. Hutchinson's more specific questions, we did not find overt or really even any subtle pressure imposed by prosecutors that the testimony of FBI examiners be slanted in a particular way.
I heard in the panel that preceded me some back and forth about possible cultural pressures that exist within the lab because of its association with the law enforcement agency. That's a lot more subtle, but still very important, and I don't think we can rule out of hand that those pressures, in fact, have existed historically. Indeed, Mr. Maddock, who's a witness on the panel that follows me, has acknowledged that that is a tension within a law enforcement agency like the FBI when it has a forensic laboratory associated with it. I think that what that requires, then, is extra special effort by laboratory management, supervisors, and examiners in the lab to make sure that their analysis is absolutely right down the middle in every case, and to do everything that they possibly can to make sure that no external influences that may tilt them in favor of conviction take hold and affect either the preparation of reports or the presentation of testimony.
I share your concern about the possibility of slanting testimony and, therefore, of convicting defendants improperly. I was a defense lawyer for four years so I've seen this from both sides of the street. So, I think there may be cultural pressures, but the kind of overt pressuring, or muscling that you're suggesting, we did not find.
Page 153 PREV PAGE TOP OF DOC
Mr. COBLE. Well, I thank you, Mr. Bromwich.
Mr. Chairman, I don't think we can emphasize too strongly the importance of objectivity as these tests are conducted, and, as you know, this is our first leg on what may well be a long journey. I hope it will be illuminating.
Thank you Mr. Bromwich for being with us.
Mr. BARR. Thank you, and for the record, the Chair would like to also go on record that it does not find the gentleman from North Carolina's ideas and notions to be screwball either. [Laughter.]
Mr. COBLE. And I thank the chairman for that.
Mr. BARR. Thank you. The gentleman from Ohio, Mr. Chabot, is recognized for 5 minutes.
Mr. CHABOT. I thank the chairman. I'll keep my remarks relatively brief. I have another hearing that was going on at the same time as this one, so I'm trying to cover two hearings at the same time here.
The first question I wanted to ask you is that in the report that your office did, you recommended that several FBI employees be removed from their positions in the FBI lab, and has that taken place at this time, and are you satisfied with the results?
Page 154 PREV PAGE TOP OF DOC
Mr. BROMWICH. There were temporary measures that were taken after our draft report was issued. Any final decisions on personnel moves will be ultimately decided, not by the FBI, but by the Justice Management Division of the Department of Justice. I don't know how long that process will take, but it will be a process where the results are made known publicly.
Mr. CHABOT. OK, thank you. Mr. Whitehurst, this morning in his testimony made some—if true—some very disturbing allegations, and just to make sure that I'm perfectly consistent with what he said at that time, I wanted to read a couple of the things he said here to you. He said that among the problems that he witnesses at the FBI, he said there was ''fabrication and misrepresentation of data;'' that there was ''pressure on scientists to change the contents of reports in order to bolster a prosecutor's case,'' and then he went on and said things of that same ilk in different language. It's my understanding that you feel that his statements in that area are not accurate. Is that true?
Mr. BROMWICH. That's correct.
Mr. CHABOT. OK, and would you tell us why it is that you have that feeling that his allegations about fabrication of data and reports being changed in order to bolster a prosecutor's case are out of bounds?
Mr. BROMWICH. Because in every specific instance in which Mr. Whitehurst alleged that that had happened, through an exhaustive review of the relevant documents and detailed interviews using those documents with the specific individuals who were involved in the particular case in the context of which the allegations were made, we did not find that that happened.
Page 155 PREV PAGE TOP OF DOC
Mr. CHABOT. That's somewhat reassuring. Obviously, as I mentioned before, I think most Americans—certainly when you think of the FBI crime lab and the number of cases that it's been used, and very important cases, oftentimes, over the years, you would hope that this type of behavior never occurs or, certainly, that it's not a very common thing, and I'm—it's reassuring that in your report this wasn't found to be rampant or really in existence at all.
Mr. BROMWICH. I certainly share your view, but as you well know, our report is extremely critical. I mean, this is a report for which there really is no precedent with respect to the FBI lab and I don't know whether there's any precedent for any other law enforcement or part of a law enforcement agency. So, this is a very critical report, but we felt a duty and obligation to make sure that, particularly with respect to the most extreme allegations—that is those alleging fabrication of evidence; suppression of exculpatory material; perjury, and so forth—that we subjected the allegations to the cold test of evidence, and we did not find evidence to support those claims.
Mr. CHABOT. Thank you. Mr. Whitehurst had also testified this morning that he felt that there were—although he couldn't put a number on it—a significant number of cases that might have been jeopardized by the content, the activities that he alleged. Mr. Alcorn, of course, is the council for the National Association of Criminal Defense Lawyers, so that certainly would tell you where he's coming from on the issue, but he said that he thought hundreds or perhaps thousands of cases that may be in jeopardy could be appealed as a result of the allegations contained. Would you comment on that?
Page 156 PREV PAGE TOP OF DOC
Mr. BROMWICH. There certainly will be a huge number of cases that are challenged and in which new trial motions will be made. That's a far cry from meaning that, in fact, the conviction will be overturned. I believe that there is growing up right now a mini-cottage industry among defense lawyers to make on a routine basis, with respect to people already convicted, claims that the conviction rests in crucial part on the evidence and the testimony that came out of the crime lab.
Now, I predict—I think it's a safe prediction—that a lion's share of those will not even relate to any of the three sections that we looked at. It will relate to latent fingerprints; it will relate to DNA; it will relate to other sections in the lab that we didn't examine.
So, I think that Mr. Alcorn is correct to suggest that there will be many, many, many challenges that are made. That is not to say that there will be lots of cases that will be overturned. I think if we're going to be honest with each other, nobody knows the answer to that. That would be pure guesswork on anybody's part.
Mr. CHABOT. The light is telling me I'm out of time. If I could just, Mr. Chairman, just have an additional 30 seconds?
Mr. BARR. Without objection, the gentleman is recognized for an additional minute.
Mr. CHABOT. OK, thank you. And, I guess the thing that I keep thinking about, this whole matter with respect to the hundreds or perhaps thousands of cases that could be appealed if there are innocent people that have been unjustly accused, we certainly want to know that; I'm sure everybody wants to know that, and we want justice to be done. On the other hand, one can fathom that we're talking about millions and millions of dollars if you're talking about hundreds or thousands of cases being appealed when you consider the Government Attorney's time involved. Oftentimes, these defendants are indigent and, therefore, the taxpayers are also paying for their legal counsel; the defense counsel's in this case; the courts time.
Page 157 PREV PAGE TOP OF DOC
So, it's—those of us that are very concerned about trying to balance the budget and keep the cost of Government within reason, it's particularly disturbing to think that we may be looking at hundreds or thousands of cases and, hopefully, there aren't innocent people behind bars or the number is extremely small, but these hearing are important to make sure that citizens of this country are satisfied that justice is being done.
I thank the chairman.
Mr. BARR. Thank you. Without objection, the—did the distinguished ranking member have questions?
Mr. CONYERS. Yes, good morning.
Mr. BARR. The ranking member, the honorable Mr. Conyers, is recognized for 5 minutes.
Mr. CONYERS. Good morning, Mr. Bromwich.
Mr. BROMWICH. Good morning, Mr. Conyers.
Mr. CONYERS. Are things okay, not so good, or terrible?
Mr. BROMWICH. If those are my three choices, I would say that in the three sections of the lab that we looked they were not so good.
Page 158 PREV PAGE TOP OF DOC
Mr. CONYERS. What happened to the laboratory examiner who testified falsely in the Judge Alcee Hastings matter?
Mr. BROMWICH. I am not aware that anything has happened to him, sir.
Mr. CONYERS. Well, isn't that—well, I thought that would be within your jurisdiction.
Mr. BROMWICH. Let me clarify that; it's not. We do not have the responsibility to impose discipline on any other part of the Department of Justice, whether it be FBI employee or a DEA employee or a Justice Department——
Mr. CONYERS. I didn't suggest that you did.
Mr. BROMWICH. Oh, I'm sorry. I must have misunderstood.
Mr. CONYERS. I know the Inspector General's responsibilities are pervasive, but not that wide. What happened to him? I mean, it's a matter that you bring to our attention, and we congratulate you for that. OK, now it's been brought to our attention. So, that's it?
Mr. BROMWICH. No, that's not it. We've referred our entire report to the Public Integrity Section of the Criminal Division to determine whether any criminal charges can be brought against Mr. Malone, the examiner in that case, or anybody else who was discussed in the course of our 517 page report. In addition to that, there will be a disciplinary process that I think you might well expect Mr. Malone to be subjected to that will be carried out by the Justice Management Division of the Department of Justice. All disciplinary matters have been taken away or moved away from the Bureau, and will be handled by the Justice Management Division of the Department of Justice.
Page 159 PREV PAGE TOP OF DOC
Mr. CONYERS. I see. Now this occurred, what, over 5 years ago?
Mr. BROMWICH. The false testimony? It happened longer ago than that. It happened 12 years ago. It happened in 1985.
Mr. CONYERS. OK. More than twice as long. Has any disposition been reached on it yet?
Mr. BROMWICH. I'm sorry.
Mr. CONYERS. Has any disposition been reached on it yet?
Mr. BROMWICH. No. To my knowledge, no disposition has been reached on it, and, in fact, we were, in our report, extremely critical of senior managers in the lab for having utterly failed, in our judgment, to deal with what was a very serious allegation.
Mr. CONYERS. So, 12 years later we don't know what's happened, and I guess it's on our watch to follow up now.
Mr. BROMWICH. I think we do know what happened. We found that Mr. Malone testified falsely in the 1985 hearing. Have disciplinary steps been taken against him? No, they have not, but our report is out there, and I think it is fairly clear what our conclusions are as to his conduct, and we find that he engaged in some very substantial misconduct.
Page 160 PREV PAGE TOP OF DOC
Mr. CONYERS. Was he under oath when he testified?
Mr. BROMWICH. I don't know. I believe he was, but let me provide you with an answer in writing to be 100 percent sure.
Mr. CONYERS. Well, that would be helpful.
[See Appendix E]
Mr. CONYERS. So—well, let me ask you, is Mr. Malone still on his post?
Mr. BROMWICH. My understanding is that he is, but I don't know what recent steps may have been taken by the FBI in response to our report. I just don't know the answer to that, Mr. Conyers. At the time that the report was released it was my understanding that he was no longer in the lab, but he was a working agent in one of the FBI's field offices; that's all I know.
Mr. CONYERS. Well, let's see, whose—within whose range of assignments in the Federal Government is it to determine—when we find something as unconscionable as this among a—happening from a sworn agent—whose job is it, in your view, to see that 12 years don't elapse before we finally, if ever, do anything about it?
Mr. BROMWICH. I think that the blame for what went wrong in the Malone matter lies squarely at the door of the FBI.
Page 161 PREV PAGE TOP OF DOC
Mr. CONYERS. Oh, I don't doubt—I don't think anybody will argue with that, but 12 years goes by, 13 years go by, 14, 15, 16, 17; isn't there somewhere along the line somewhere in our duties and yours and the Integrity Section and the Department of Justice and Janet Reno and the White House, isn't there somebody's job to say, ''This terrible matter that we all know about that happened, and the agent was under oath, and it was awful.'' and blah, blah, blah? Doesn't somewhere along the line in this whole thing somebody says, ''Well, yes, but what do we do about it?''
Mr. BROMWICH. We belatedly, Mr. Conyers, we—when we had the allegation brought to our attention in the midst of our investigation, we did what we could do which is to investigate the allegations thoroughly and to do what I think it was our responsibility to do which is, in a public report, to specifically describe what we found which is not in any way, shape or form complimentary of Mr. Malone or anybody in the FBI. We are sharply critical of Mr. Malone and all the people in his chain of command who failed to do anything about this, and failed to give the information to anyone outside the FBI. So, we have done something about it. Was it belated? You bet it was, but our action was not belated. As soon as we found out about it, we investigated it to death.
Mr. CONYERS. Well, I guess it's on—I've tried to push this into your box, and you pushed it pretty effectively into mine—I guess it's up to us now to figure out what we do about it, and, by the way, all these other incidence that you've reported which are pretty numerous, I understand—about how many are there?
Could I have an additional minute, Mr. Chairman?
Page 162 PREV PAGE TOP OF DOC
Mr. BARR. Without objection, the gentleman is allowed an additional minute.
Mr. CONYERS. How many transgressions have you brought to public attention and the Judiciary Committee, in particular, that are encompassed in your report?
Mr. BROMWICH. There are scores of——
Mr. CONYERS. I know scores——
Mr. BROMWICH [continuing]. Findings—I don't have an exact number for you, Congressman. Is the question: Did we not do it before?
Mr. CONYERS. No.
Mr. BROMWICH. OK.
Mr. CONYERS. No. The question is this, sir: How many instances of potential violations of duty, perhaps law, have taken—have occurred that you have noted—you and your group have noted—and put in the report?
Mr. BROMWICH. It's a large number; all those that we found, we put in the report. There was nothing kept out of the report.
Page 163 PREV PAGE TOP OF DOC
Mr. CONYERS. Yes, I know that.
Mr. BROMWICH. I don't have the specific number. I could go through the text of the report, and count them up, and I'll be happy to submit that to you.
Mr. CONYERS. Well, OK; that's good.
[See Appendix E:]
Mr. CONYERS. Now, but let's just you and I, talking between us in the room up on the Hill—was it a hundred or a thousand?
Mr. BROMWICH. It was not—in terms of findings of improper practices and procedures—no, it was not even a hundred; it certainly was not anywhere approaching a thousand.
Mr. CONYERS. OK, so we're under a hundred?
Mr. BROMWICH. Right.
Mr. CONYERS. Was it more than 25?
Mr. BROMWICH. Yes, it was more than 25.
Mr. CONYERS. Could it have been 50?
Page 164 PREV PAGE TOP OF DOC
Mr. BROMWICH. It could have been 50.
Mr. CONYERS. Well, thank you very much. You, of course, offered to stay in touch with the committee as we try to work through this?
Mr. BROMWICH. Absolutely, Mr. Conyers.
Mr. CONYERS. Because it may require us meeting not in a formal hearing, you know, to pursue some of these matters in greater detail.
Mr. BROMWICH. Absolutely. I think it's important—you probably know this—but let me just say so: We have a very limited oversight role over the FBI. They have their own internal OPR, and it is only in the extraordinary circumstance that we can go to the Deputy Attorney General, and get the ability to investigate misconduct allegations in the FBI. That's what I did in this case.
Mr. CONYERS. I congratulate you for that.
Mr. BROMWICH. Thank you.
Mr. CONYERS. Thank you, Mr. Chairman.
Mr. BARR. OK, thank you, Mr. Conyers. The gentleman from Florida has asked for a unanimous consent for an additional three minutes, and he is, therefore, recognized for three minutes. Mr. Wexler.
Page 165 PREV PAGE TOP OF DOC
Mr. WEXLER. Thank you, Mr. Chairman, for your indulgence.
Mr. Bromwich, if I may, again, back to the report—the finding was ''some,'' and I believe the operative word was ''some'' of Dr. Whitehurst's internal reports were altered, omitted or improperly supplemented. How many other people's internal reports did you find were altered, omitted or improperly supplemented?
Mr. BROMWICH. My memory is that there was at least one other examiner who did similar work to Dr. Whitehurst's who had those kinds of changes made, but you should keep in mind that, of course, we looked primarily at Whitehurst's cases, because those are the cases that he had personal knowledge of, and, therefore, those were the cases in which he made the specific allegations. So, I don't want to suggest to you that there may not have been instances in which it happened with respect to other examiners.
Mr. WEXLER. When you say, ''some''—I don't want to get into it; Mr. Conyers got into it—what are we talking about?
Mr. BROMWICH. In terms of some of Dr. Whitehurst's conclusions?
Mr. WEXLER. Yes. Well, how many reports of his did you examine?
Mr. BROMWICH. We examined—I'd like to submit you a specific number—but a couple of hundred I would estimate.
Page 166 PREV PAGE TOP OF DOC
Mr. WEXLER. Then what does ''some'' represent in terms of the ones that were altered, omitted or supplemented?
Mr. BROMWICH. Again, let me get back to you with the specifics. Again, it's a relatively small number.
Mr. WEXLER. OK.
[See Appendix E:]
Mr. WEXLER. Would you share for me again your explanation as to why those alterations and supplementations and so forth were not intentional and that they were just technical—you didn't use the word technical; I don't want to use——
Mr. BROMWICH. No, it's not a word I would use.
Mr. WEXLER. OK. Would you share with me that explanation again, one more time if you don't mind?
Mr. BROMWICH. Sure. The reason why we found that the people against whom Dr. Whitehurst alleged criminal conduct did not commit criminal acts is that we did not find evidence to support that they had the specific intent to commit the crimes. That does not mean that we exonerated them from any allegations that they engaged in improper practices, in fact, we found to the contrary. That's the meaning of our conclusions; that they produced scientifically flawed work; that they exceeded their expertise when they testified on the witness stand in specific cases. The finding that we made that they didn't commit crimes is a significant finding, but so is the finding that they engaged in shoddy practices, poor science, and that kind of work should not be acceptable in the FBI lab.
Page 167 PREV PAGE TOP OF DOC
Mr. WEXLER. I realize you didn't give weight to a substantial amount of the vast majority of the allegations that Dr. Whitehurst made, but he responded to a question earlier that he was concerned that there are people who were wrongly convicted and that may be sitting in prison today. Do you share that concern?
Mr. BROMWICH. I do share it to some extent. I would hope that Dr. Whitehurst and Mr. Kohn and everyone else who claims that they have received information that lead to that conclusion, that they would produce that to me or to the Department of Justice so we can find out whether there is something to that. I think those are very serious allegations——
Mr. WEXLER. Sure they are.
Mr. BROMWICH [continuing]. And I care deeply about them, and I think it ought to be everybody's objective to find out whether, in fact, it's true, and if evidence is brought to people's attention suggesting that it is true, it ought to be looked at very carefully.
Mr. WEXLER. Well, with all due respect, you've reviewed the matters or most of the matters that Dr. Whitehurst is involved with—that's the ones he would know about. You've reviewed the testimony provided by the FBI in those cases, because, otherwise, you certainly couldn't have concluded that there was no perjury. So, is there or is there not somebody who was convicted as a result of the actions that are the subject of this hearing today?
Page 168 PREV PAGE TOP OF DOC
Mr. BROMWICH. I don't think it would be responsible of me, Mr. Wexler, to give you that kind of conclusion. We specifically say in our report that we do not come to any conclusion as to what the impact of the improper work or the shoddy scientific work was on the outcome of any particular case. The trial records in many of these cases are extensive. Some of them include trials that lasted for months and months and months. So, I think that we ought to leave it to the process that exists; that is defendants who are convicted have the opportunity to raise, based on newly discovered evidence, evidence that suggests that they may have been convicted improperly—they will make such motions; their defense lawyers will make such motions; prosecutors will oppose those motions, and judges will decide those motions. It is not my institutional role to make that decision, and I'm very uncomfortable in even guessing at it.
Mr. WEXLER. And I appreciate that. You have——
Mr. BARR. If the gentleman from Florida could wrap it up, please——
Mr. WEXLER. Yes. You have concluded that there was no perjury on behalf of any testifying FBI employees. Is that correct?
Mr. BROMWICH. That's correct.
Mr. WEXLER. Thank you.
Mr. BARR. OK. Thank you, and I'd like to extend the thanks to the entire subcommittee to Mr. Bromwich; we appreciate your indulgence and your testimony, both direct and in answer to questions.
Page 169 PREV PAGE TOP OF DOC
We will hear from the third and final panel at 12:30. We will stand at recess until 12:30.
[Recess.]
Mr. MCCOLLUM. The hearing on the Subcommittee on Crime will come to order.
Our third panel, today—after this brief recess—on the FBI investigation and into the crime lab questions—consists of three people: James Maddock, the Deputy General Counsel for the Federal Bureau of Investigation. Mr. Maddock joined the FBI as an agent in 1980. He has served in the Washington, New York, Detroit, and San Juan offices, and has served as Assistant Special Agent in charge of the Jackson Mississippi office. He holds both bachelor's and law degrees from the University of Virginia.
The second member of the panel is Donald Thompson, the Acting Assistant Director of the FBI for the Laboratory Division. Mr. Thompson first began working at the FBI in 1971, and became a Special Agent in 1973. He served in the El Paso, Chicago, and Washington offices. In 1994, he became Deputy Assistant Director of the Laboratory Division at FBI headquarters. In January of 1996, he assumed his present duties as Acting Assistant Director of the Laboratory Division. He received his bachelor's degree from the University of Minnesota.
And the third member of our panel is Kevin Lothridge, president of the American Society of Crime Laboratory Directors, a nonprofit, professional society devoted to the improvement of crime laboratory operations through solid management practices. Mr. Lothridge is also director of the Pinellas County Florida Forensic Laboratory where he has worked for over 10 years. He holds a bachelor's degree in forensic science from Eastern Kentucky University and a master's degree in management from National Louis University.
Page 170 PREV PAGE TOP OF DOC
I must say that I have met Mr. Lothridge before—as a Floridian, I've got to pay special attention to the fact that you're here today and welcome you, Mr. Lothridge, but we always welcome our guests from the FBI when you come before us.
All of the testimony that you've submitted in writing will be admitted to the record without objection, and you may feel free to summarize it. I've got Mr. Maddock listed first, but whichever order you wish to go in, I'll let you proceed; please do.
STATEMENT OF JAMES M. MADDOCK, DEPUTY GENERAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION
Mr. MADDOCK. Thank you, Mr. Chairman.
I would just like to briefly summarize, if I could, the testimony to place my role in this overall investigation in perspective. Since September, 1995 I have served as the FBI's point person on the Inspector General's investigation of the lab. I supervised the Bureau's response to the IG's draft report and insured the FBI's full cooperation with the IG's investigation.
During the course of that investigation we provided thousands of pages of documents; made employees available for interview, and provided any and all assistance requested by the IG and his staff. We do not believe that such a complete and comprehensive investigation of the lab would have been possible without the full cooperation of the FBI.
Page 171 PREV PAGE TOP OF DOC
As you know, the IG's investigation was triggered by the hundreds of allegations that Special Agent Frederic Whitehurst made against fellow FBI employees. The IG found that the vast majority of those allegations were unsubstantiated. I think it's important to note that many of Mr. Whitehurst's allegations suggested that his colleagues were guilty of criminal misconduct—tampering with evidence, obstruction of justice, perjury, suppression of evidence; none of which were substantiated by the IG.
We acknowledge that there were serious problems with former lab management and with the performance of several lab examiners, but none of those problems amounted to criminal misconduct as Mr. Whitehurst so often alleged. Rather the problems identified by the IG involved individual performance failures; failures which led the IG to make a number of major recommendations to improve the FBI lab. We have agreed to each of these recommendations and have either implemented or are taking steps to implement each of these.
As a result, we're confident that the management and individual performance problems identified by the IG are being resolved and will not recur. Additionally, it's important to note that the FBI lab currently consists of 35 units each of which specializes in a particular forensic discipline. The IG's investigation focused on three of those units: the Explosives Unit, Chemistry Toxicology Unit and the Materials Analysis Unit. Moreover, the IG's most serious criticisms apply to the performance of only a few individuals within those units. We have no indication that the remaining 32 units have experienced similar performance and management problems. We're confident that the extensive audit procedures that the entire lab is undergoing in preparation for accreditation by the American Society of Crime Lab Directors, Lab Accreditation Board will identify any remaining problems in the lab. The FBI is committed to eradicating any weaknesses in the lab and to performing its duties with the highest scientific and ethical standards.
Page 172 PREV PAGE TOP OF DOC
Before responding to your specific questions, I'd like to briefly address three lab-related issues. The committee has inquired as to the impact that the problems identified in the lab will have on criminal cases. For over a year, the FBI has been working closely with the Department of Justice Criminal Division and with prosecutors to insure that no pending or future prosecutions will be compromised. By this I mean that no prosecution will be declined, and no defendant's right to a fair trial will be jeopardized by the problems identified in the lab. We're confident that we will achieve this goal.
With respect to past cases the FBI and DOJ are committed to continuing to review the cases of each of the 13 lab employees criticized in the IG's report in which a conviction resulted. We believe that this is the only way to insure that no defendant's right to a fair trial was jeopardized. This review process is being conducted by a task force comprised of FBI and Department of Justice Criminal Division personnel. The review process for past cases will be conducted as follows: The FBI has identified the past cases involving the 13 lab examiners criticized by the IG; the task force will contact the contributing agency or the prosecuting office in each case to determine whether a conviction was obtained. In each case which resulted in a conviction the task force will consult with the appropriate prosecuting authority to determine whether the lab's work was material to the conviction. Where a determination is made that the work of lab personnel was material to the conviction, the lab's findings and any testimony offered by lab personnel will be submitted to a qualified outside scientist for review. If the scientist's evaluation identifies a problem with the lab's findings or testimony in a particular case, the FBI and DOJ will make all necessary disclosures to the prosecutor for his or her determination as to whether the disclosure must legally be made to the defense. By adopting these procedures the FBI will be able to fulfill its commitment to the public to restore public confidence in the FBI's role in the criminal justice system.
Page 173 PREV PAGE TOP OF DOC
In the wake of the FBI's handling of Mr. Whitehurst's allegations, questions have also arisen about the FBI's ability to investigate itself. It must be remembered, however, that the FBI has successfully investigated many significant and sensitive allegations of misconduct by FBI employees. For example, the FBI successfully investigated and assisted in the prosecution of an FBI Special Agent who was convicted of killing a confidential informant. The FBI investigated its former director for misuse of his position, and, most recently, the FBI investigated and arrested one of its own Special Agents for espionage.
Unlike most police agencies, the FBI has not one, but two, independent watchdogs that provide oversight of the FBI's employees and activities. In addition to the FBI's Office of Professional Responsibility, the Department of Justice Office of Professional Responsibility also has oversight of the FBI in certain circumstances. Moreover, the Department of Justice Inspector General may request authority from the Attorney General to take responsibility for investigating a particular allegation under investigation by the FBI's OPR. Further, the FBI can recuse itself from a particular investigation as it did in the case of the lab. The FBI remains committed to an effective internal integrity program. We are dedicating more resources to our own OPR and have hired a career prosecutor from the Department of Justice to head that office.
With respect to Mr. Whitehurst's allegations, we recognize that we did not adequately investigate all of those allegations internally. We are reviewing prior management failures to prevent such failures in the future. In that regard, we're confident that the changes we are implementing in the laboratory will insure that there will be no recurrence of the problems identified in the IG's investigation.
Page 174 PREV PAGE TOP OF DOC
After reviewing the IG's draft report, the FBI made temporary personnel changes with respect to four lab employees whose performance and conduct were severely criticized by the IG. On January 24th, 1997 one employee was reassigned within the lab; two employees were temporarily reassigned to perform duties outside of the lab, and Mr. Whitehurst was temporarily placed on administrative leave with pay. The actions are temporary, and each employee has retained his full pay and benefits. These moves were necessary, however, to insure that the lab operated as effectively and efficiently as possible pending the release of the IG's final report.
The reason that Mr. Whitehurst was temporarily placed on administrative leave with pay rather than temporarily reassigned to another role within the FBI like the other employees was in no way motivated by Mr. Whitehurst's protected whistle-blowing activities. Rather, the FBI took this action with respect to Mr. Whitehurst for two reasons: The findings, conclusions and recommendations regarding Mr. Whitehurst contained in the IG's draft report—including the determination that Mr. Whitehurst appears to lack the judgment and common sense necessary for a forensic examiner, as well as the recommendation that the FBI consider what role, if any, he can usefully serve in other components of the FBI—and Mr. Whitehurst's refusals to answer questions, in direct contravention of an order to cooperate with regard to an investigation into allegations that Mr. Whitehurst without authorization disclosed official information to an outside party.
In order to avoid even the appearance of retaliation, however, the FBI requested that the Department of Justice make any final personnel decisions with respect to Mr. Whitehurst and all of the lab employees criticized by the IG. The Department of Justice has assigned that responsibility to the Justice Management Division.
Page 175 PREV PAGE TOP OF DOC
Finally, I'd like to reemphasize that the FBI has agreed to each of the major recommendations contained in the IG's report. In fact, we've invited the IG to inspect the lab every six months until both he and the FBI are satisfied that all the issues have been resolved.
At this time the Acting Assistant Director of the lab, Don Thompson, will outline some of the most significant recommendations to improve the lab and the actions the FBI has already taken to implement those. Thank you.
STATEMENT OF DONALD W. THOMPSON, ACTING ASSISTANT DIRECTOR, LABORATORY DIVISION, FEDERAL BUREAU OF INVESTIGATION
Mr. THOMPSON. Mr. Chairman, members of the committee——
Mr. MCCOLLUM. You need to turn your microphone on, Mr. Thompson. There's a little button there—there you go—a little switch. Thank you.
Mr. THOMPSON. Mr. Chairman and members of the committee, I also thank you for the opportunity to appear here today, and I want to first state that we in the FBI laboratory do acknowledge the findings of the Inspector General, and agree that there were performance shortcomings on the part of a small number of our employees. While these deficiencies did not rise to the level of perjury or fabrication of evidence we, nonetheless, take them very seriously, and we believe they should not be characteristic of the high standards that we demand of ourselves and those which the American people expect and deserve of us. However, I also believe that they should not overshadow the outstanding work that the laboratory has performed on thousands of cases over the past 60 years. This work has consistently withstood the test of court proceedings all over the country at all levels of government.
Page 176 PREV PAGE TOP OF DOC
Since its creation, the FBI laboratory has pioneered numerous advances in forensic technology and methods which have revolutionized the manner in which forensic evidence can be detected and analyzed. We have advanced the use of DNA analysis techniques and, for example, very recently brought on-line a technique which enables us to exploit hair, bone, and teeth evidence in a manner, heretofore, not possible. Besides assisting in the solution of several recent violent crime cases, this technique recently enabled the exoneration of an individual who had been in jail for a violent sexual assault that occurred in 1989.
We've also pioneered the development of automated forensic database systems such as DRUGFIRE and the combined DNA index system, also known as CODIS, and these systems have enabled law enforcement officials to link evidence from multiple crimes, and share information across jurisdictions. CODIS has linked more than 200 sexual assaults since 1991, and DRUGFIRE has produced more than 1,500 evidentiary associations from crimes involving the use of firearms. The laboratory has also provided training to hundreds of forensic practitioners from the State, local, and international organizations who have and continue to be a credit to their profession.
The FBI has and continues to be a leader within the forensic community in forming technical working groups which are designed to develop standards for conducting analyses; for training; for qualifications of examiners; and for quality assurance methods. Working groups in the areas of DNA, materials, and fingerprints have proved immensely productive, and we are forming working groups in the handwriting and bombing areas.
We have long recognized the need for an updated laboratory facility, and we will be building a new state of the art facility in Quantico, Virginia. This new project, which is scheduled for completion in the year 2000, will provide us a world class facility which will enhance the quality of our current forensic capabilities, and enable us to better exploit new and emerging technologies.
Page 177 PREV PAGE TOP OF DOC
Consistent with the recommendations made by the Inspector General the laboratory has already or is in the process of implementing measures to enhance and assure the quality of our work. In 1994 we decided to seek accreditation with the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, and having undergone extensive preparations we expect to apply for accreditation before the end of the year.
We are in the process of restructuring our Explosives Unit and have revamped our report-writing procedures. We've also fine tuned a number of procedures that we have promulgated the last couple of years commensurate and consistent with the IG's recommendations. We created a new Quality Assurance Unit in 1995 which has been charged with coordinating a total quality program. We are also strengthening our uniform training program for examiners with additional emphasis being placed on case documentation, report preparation, and testimony. Finally, the FBI has begun a search for a world class scientist to run the laboratory.
In closing, I would like to say that we continue to remain very proud or our accomplishments, but most certainly, we do recognize that there is always room for improvement and that we must commit ourselves to doing so. The Inspector General inquiry is culminating a period of critical self examination by the laboratory which begun three years ago when we decided to open ourselves up to external scrutiny and pursue accreditation. The Inspector General has clearly made excellent recommendations and we have and will continue to strengthen our quality assurance processes to insure that the problems he surfaced do not recur.
The FBI is committed, Mr. Chairman, to making the required changes to insure that the laboratory remains the leader among forensic laboratories and that its work meets the rigors of the science and the law. We are confident that through this process we are emerging better and stronger than ever. Thank you.
Page 178 PREV PAGE TOP OF DOC
[The prepared statement of Mr. Maddock and Mr. Thompson follows:]
PREPARED STATEMENT OF JAMES M. MADDOCK, DEPUTY GENERAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, ACCOMPANIED BY DONALD W. THOMPSON, JR., ACTING ASSISTANT DIRECTOR, LABORATORY DIVISION, FEDERAL BUREAU OF INVESTIGATION
Good afternoon, Mr. Chairman and Members of the Committee. Thank you for the opportunity to appear before you this afternoon to discuss some of the issues raised recently concerning the FBI Laboratory.
For the past year and a half, the FBI Laboratory has undergone an unprecedented investigation by the Department of Justice Inspector General. The FBI fully cooperated with the Inspector General's investigation by providing thousands of pages of documents, making employees available for interviews, and providing any and all assistance requested by the Inspector General and his staff during the course of the investigation. We do not believe that finch a complete and comprehensive investigation of the Laboratory would have been possible without the full cooperation of the FBI.
As you know, the Inspector General's investigation was triggered by the allegations that Special Agent Frederic Whitehurst made against fellow FBI employees. The Inspector General found that the vast majority of those allegations were unsubstantiated. We think it is important to note that many of Mr. Whitehurst's allegations suggested that several of his colleagues were guilty of criminal misconduct—tampering with evidence, obstruction of justice, perjury, suppression of evidence—none of which were substantiated by the Inspector General.
Page 179 PREV PAGE TOP OF DOC
We acknowledge that there were problems with former Lab management and with the performance of several Lab examiners. But none of these problems amounted to criminal misconduct. Rather, the problems identified by the Inspector General involved individual performance failures; failures which led the Inspector General to make a number of recommendations to improve the FBI Laboratory. We have agreed to each of these recommendations and have either implemented, or are taking steps to implement, each of them. As a result, we are confident that the management and individual performance problems identified by the Inspector General are being resolved and will not recur.
In addition, it is important to note that the FBI Laboratory currently consist of 35 units, each of which specializes in a particular forensic discipline. The Inspector General's investigation focused on three of those units: the Explosives Unit, the Chemistry-Toxicology Unit, and the Materials Analysis Unit. Moreover, the Inspector General's most serious criticisms apply to the performance of only a few individuals within those units. We do not have any indication that the remaining 32 units have experienced similar performance and management problems. We are confident that the extensive audit procedures that the entire Lab in undergoing in preparation for accreditation by the American Society of Crime Laboratory Directors/Lab Accreditation Board will identify any remaining problems in the Lab. The FBI is committed to eradicating any weaknesses in the Lab and to performing its duties with the highest scientific and ethical standards. In particular, we would like to briefly address four of the major areas of interest concerning the FBI Lab.
1. THE TASK FORCE REVIEW OF PAST CASES
Page 180 PREV PAGE TOP OF DOC
The FBI has been working closely with the Department of Justice Criminal Division and prosecutors for over a year to ensure that no pending or future prosecutions will be compromised and no defendant's right to a fair trial will be jeopardized by the problems identified in the Lab. We are confident that we can achieve this goal.
With respect to past cases, the FBI and DOJ are committed to continuing to review the cases of each of the 13 Lab employees criticized in the Inspector General's report which resulted in a conviction. We believe that this is the only way to ensure that no defendant's right to a fair trial was jeopardized. This review process is being conducted by a task force comprised of FBI and Department of Justice Criminal Division personnel.
The review process for past cases is being conducted as follows. The task force has identified the past cases involving the 13 Lab examiners who were criticized by the Inspector General. The task force will contact the contributing agency or the prosecuting office in each case to determine whether a conviction was obtained. In each case which resulted in a conviction, the task force will consult with the appropriate prosecuting authority to determine whether the Laboratory's work was material to the conviction. Where a determination is made that the work of Lab personnel was material to the conviction, the Laboratory's finding and any testimony offered by Lab personnel will be submitted to a qualified outside scientist for review. If the scientist's evaluation identifies a problem with the Lab's findings or testimony in a particular case, the FBI and DOJ will make all necessary disclosures to the prosecutor for his or her determination as to whether the disclosure must legally be made to the defense.
By adopting these procedures, the FBI will be able to fulfill its commitment to the public and to restore public confidence in the FBI's role in the criminal justice system.
Page 181 PREV PAGE TOP OF DOC
2. ABILITY OF FBI TO SELF-POLICE
In the wake of the FBI's handling of Mr. Whitehurst's allegations, questions have arisen about the FBI's ability to investigate itself. It must be remembered, however, that the FBI has successfully investigated many significant and sensitive allegations of misconduct by FBI employees. For example, the FBI successfully investigated and assisted in the prosecution of an FBI Special Agent who was convicted of killing a confidential informant; the FBI investigated its former Director for misuse of his position; and, most recently, the FBI investigated and arrested one of its own Special Agents for espionage (Special Agent Earl Edwin Pitts).
Unlike most police agencies, the FBI has not one, but two, independent watchdogs that provide oversight of the FBI's employees and activities. In addition to the FBI's Office of Professional Responsibility, the Department of Justice Office of Professional Responsibility also has oversight of the FBI in certain circumstances. Moreover, the Department of Justice Inspector General may request authority from the Attorney General to take responsibility for investigating a particular allegation under investigation by the FBI's OPR. Further, the FBI can recuse itself from a particular investigation, as it did in the case of the Lab.
The FBI remains committed to an effective internal integrity program. We are dedicating more resources to our own OPR and have hired a career prosecutor from the Department of Justice to head the office.
With respect to Mr. Whitehurst's allegations, we recognize that we did not adequately investigate all of those allegations internally. We are reviewing prior management failures to prevent such failures in the future. In that regard, we are confident that the changes we have and are continuing to implement in the Laboratory will ensure that there will be no recurrence of the problems identified in the Inspector General's investigation.
Page 182 PREV PAGE TOP OF DOC
3. TREATMENT OF FBI LABORATORY EMPLOYEES
After reviewing the Inspector General's January 21, 1997, draft report, the FBI made temporary personnel changes with respect to four Laboratory employees whose performance and conduct were severely criticized by the Inspector General. On January 24, 1997, one employee was reassigned within the Lab (Special Agent J. Thomas Thurman), two employees were temporarily reassigned to perform duties outside of the Lab (Special Agent Roger Martz and Special Agent David Williams), and Mr. Whitehurst was temporarily placed on administrative leave with pay.
The actions are temporary and each employee has retained his full pay and benefits pending review of the final report. These interim moves were necessary to ensure that the Laboratory operated as effectively and efficiently as possible pending the release of the Inspector General's final report.
The reason that Mr. Whitehurst was temporarily placed on administrative leave with pay was because of a failure to cooperate with a separate inquiry in addition to the findings of the Inspector General. It was not motivated by Mr. Whitehurst's protected whistleblowing activities, but to avoid even the appearance of retaliation, the FBI has requested that a separate component of the Department of Justice (Justice Management Division) make any final personnel decisions with respect to Mr. Whitehurst and all of the Lab employees criticized by the Inspector General.
4. RECOMMENDATIONS AND CHANGES BY THE LAB
Page 183 PREV PAGE TOP OF DOC
The FBI has agreed to each of the major recommendations contained in the Inspector General's report and has invited the Inspector General to reinspect the Lab every six months until both he and the FBI are satisfied that all issues have teen resolved. In addition, the FBI has adopted a number of measures to improve the quality of the Laboratory's work that exceed the recommendations of the Inspector General. The following list outlines some of the most significant recommendations to improve the Laboratory and describes some of the actions the FBI has taken to implement these recommendations.
Accreditation. In l994, prior to the Inspector General's inquiry into the Laboratory, the FBI had begun the process of seeking accreditation by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB). In preparation for accreditation, the FBI Laboratory has undergone extensive internal audits and is taking follow-up action with respect to those audits. The Lab will also undergo an external, pre-accreditation review conducted by qualified inspectors under the aegis of the National Forensic Science Technical Center. The Laboratory anticipates that it will submit its formal application for accreditation to ASCLD/LAB by the end of this year.
Laboratory Restructuring. The FBI is in the process of restructuring the Explosives Unit in order to clarify its mission and to ensure that both supervisory personnel and examiners have appropriate scientific and technical training. In connection with that restructuring, the Lab has merged the Explosives Unit with a portion of the Materials Analysis Unit, to form the Materials and Devices Unit, in order to link two related scientific areas.
Examiner Reports. In order to prevent alteration of auxiliary examiner findings by the principal examiner in a case, the FBI now requires each examiner who analyzes evidence to prepare and sign a separate report. In addition, prior to release, reports must be reviewed by a unit chief or other qualified examiner for compliance with all applicable requirements. Lastly, all matches or identifications that could inculpate one or more suspects will be afforded a confirmatory review by a qualified peer which exceeds the aforementioned technical reviews that all reports undergo.
Page 184 PREV PAGE TOP OF DOC
Quality Assurance. The FBI has created a Quality Assurance Unit to enhance the quality of all of the Lab's work. The FBI hen also adopted an internal audit program, pursuant to which examiner reports will be subject to annual audits by the Quality Assurance Unit to confirm that all necessary documents are included in the case file. In addition, the FBI is establishing a separate audit group to review a representative sample of closed cases to ensure that all aspects of the Lab's Quality Assurance Plan are strictly followed.
Examiner Training. In addition to the specialized examiner training already provided for each unit of the Laboratory, the Laboratory is strengthening its uniform curriculum for examiner training to ensure common issues such as case documentation, report preparation, and examiner ethics are thoroughly addressed. The Lab is also improving its moot court training to provide examiners with guidance in recognizing the limits of an examiner's expertise, when and how it is appropriate for an examiner to act as a summary witness, and the general care and precision with which examiners' opinions must be stated.
New Assistant Director for Laboratory Division. The FBI has retained an executive search firm to seek a world-class scientist with strong credentials to run the Laboratory. Only have we begun a search for a new director of the Lab, but we have also actively recruited and hired forensics experts to fill a number of key positions in the FBI Laboratory. Currently, the chiefs of both the Scientific Analysis Section and the Forensic Science Training and Research Center are scientists who hold Ph.D.'s in their respective fields. In addition, we have placed Ph.D.-level scientists into other key forensic positions, including the unit chiefs of both DNA units and the Materials and Devices Unit which has responsibility for metallurgy, as well as evidence from explosions. We are also in the process of creating positions for four Ph.D.-level scientists to report directly to the assistant Director and advise him in matters relating to the fields of biology, chemistry, physics and materials, and computers and informatics. These individuals will be responsible for special problem solving, scientific and technical advancement, liaison with the relevant scientific communities, and most importantly, assuring the quality of the scientific practices in the Laboratory. In addition, over the last several years we have hired more than 100 new professional forensic examiners, many of whom hold advanced scientific degrees
Page 185 PREV PAGE TOP OF DOC
While we acknowledge the findings of the Inspector General, we also believe that they should not overshadow the outstanding work that the Laboratory has performed on thousands of cases over the past sixty years. This work has consistently withstood the test of court proceedings all over the country. Our successes transcend federal, state, and local criminal cases. In addition, the amount of evidence examined has varied. For example, the FBI Laboratory Latent Fingerprint Section positively identified a palm print from the bedroom of 12-year old Polly Klaas as having come from Richard Allen Davis, the man convicted of kidnaping and murdering her. On the other hand, more than 10,000 separate examinations of over 400 specimens were performed for an investigation into Peter Kevin Langan and Scott Stedeford's involvement in a rash of Midwest bank robberies. The two trials resulted in convictions of these defendants on all counts.
Since its creation, the FBI Laboratory has pioneered numerous advances in forensic technology and methods which have revolutionized the manner in which evidence can be analyzed. One of the most recent advances is the FBI Laboratory's development of the capability for mitochondrial DNA analysis. This capability enables the use of additional types of biological evidence, such as hair, bones, and teeth for forensic DNA analysis. Heretofore, this type of analysis was not possible—only nuclear DNA obtained from body fluids and tissues could be analyzed. The FBI Lab in currently the only forensic Laboratory with this capability in the U.S.
This recent development has already been successful in assisting law enforcement agencies with the solution of violent crimes. In addition, thin method has been used to exonerate a previously convicted individual. This individual was arrested, charged and convicted of a violent sexual assault which occurred in Wisconsin in 1989. A biological sample from the convicted offender was re-typed using mitochondrial DNA technology, and the results excluded him. Based on these results, the individual was subsequently released from prison.
Page 186 PREV PAGE TOP OF DOC
The FBI Laboratory has also been at the forefront in developing a coordinated and effective response to the criminal use of nuclear, biological and chemical materials. We established the Hazardous Materials Response Unit to provide the capability to respond effectively to criminal actions or crime scenes involving these dangerous elements. The two foremost objectives of this unit are to ensure public safety considerations are addressed at these incidents and to maximize proper identification, collection and preservation of evidence. The Hazardous Materials Response Unit has responded four times in the last month to suspected chemical/biological terrorist events including the recent mailing of a biological sample to the B'nai B'rith International facility in Washington, D.C.
The FBI Laboratory also pioneered the development of automated forensic database systems, such as DRUGFIRE and the Combined DNA Index System (CODIS). DRUGFIRE is a computer system which matcher cartridge cases and bullets to each other and to recovered firearms. CODIS linings biological evidence recovered from a crime scene with evidence from other crime scenes and convicted sexual offender. These systems were designed to enable state and local officials to associate evidence from multiple crimes and share information across jurisdictions with other laboratories. These national networks have already proven their worth. More than 200 successful links have been made by CODIS since 1991. DRUGFIRE has enabled more than 1500 padre of criminal investigations to be associated.
These links are extremely helpful in investigations and enable crimes to be solved. In 1996, the proprietor of a jewelry store was shot during a botched robbery in Dade County, Florida. DRUGFIRE matched a cartridge case recovered from this scene to a second cartridge recovered from a shooting into an occupied dwelling near Fort Lauderdale. Witnesses of the later shooting knew the shooter's identity. Once DRUGFIRE linked the two investigations, this suspect was identified by the jewelry store proprietor as the individual who shot him.
Page 187 PREV PAGE TOP OF DOC
The FBI Laboratory has provided training to hundreds of forensic practitioners from state, local, and international law enforcement organizations who have and continue to be a credit to the profession. The courses we offer range from basic DNA analysis, to latent fingerprint identification, to analysis of computer evidence. During the past fiscal year, the FBI Laboratory presented 15 in-service classes to 448 FBI personnel and 22 scientific and technical schools to 612 state and local forensic scientists from through the U.S. In addition, we offer symposia which enable forensic practitioners from across the country to gather and exchange information and learn about the latest developments in this ever-growing and changing field. For example, this past year the FBI hosted an international trace evidence symposium attended by 203 scientists from around the United States and 18 other nations. In addition, the Laboratory has played an important role in assisting the emerging democracies of Eastern Europe and the former Soviet Union develop sound forensic capabilities.
The FBI has and continues to be a leader within the forensic community. We have led the effort to form technical working groups within the forensic science community to develop analytical/scientific standards in the forensic disciplines, including the DNA Advisory Board, TWIGDAM (DNA), TWIGMAT (materials) and TWIGFAST (fingerprints). These working groups have been formed to establish standards for all laboratories that perform analyses in these areas. The standards include the use of consistent protocols, the setting of minimum qualifications for examiners, and the development of training and quality assurance measures to ensure that the products from every laboratory are consistent. We are currently in the process of forming a working group in explosives (TWIGBOMB) and will be exploring a partnership with the newly formed National Forensics Center at the University of Central Florida to further this effort.
Page 188 PREV PAGE TOP OF DOC
As we move into the next century, the types of forensic testing and technology which will become commonplace will continue to expand. For example, DNA testing, which is used with increasing frequency in criminal investigations, has only been in use for the past ten years. In order to perform effectively, the crime lab of the future will require sophisticated equipment and top-notch facilities. The FBI has recognized the need for updated laboratory facilities and began serious discussions to construct a new facility in 1994. our existing facility remains virtually unchanged since its movement to the Hoover Building in 1973. The existing location of the FBI Laboratory suffers from severe space limitations, safety and health risks, and inadequate utility and environmental support. Consequently, the FBI has begun the proceed of constructing a new state-of-the-art, stand-alone facility at the FBI Academy in Quantico, Virginia. The first phase of construction will begin in October 1997 with the construction of the parking garage. Construction of the main building is projected to begin in the spring of 1998, with completion anticipated in 2000.
While we continue to remain proud of the accomplishments of our Laboratory, we must recognize that there is always room for improvement and that we must be committed to doing so. The Inspector General inquiry is culminating a period of critical self-examination by the Laboratory which began three years ago when we decided to open ourselves Up to external scrutiny and pursue ASCLD/LAB accreditation. The Inspector General has clearly identified a number of past deficiencies, and we have and will continue to strengthen our quality assurance processes to ensure that these problems do not recur. The FBI is committed to making the required changes to ensure that the Laboratory remains a leader among forensic laboratories and that its work meets the rigors of both science and the law. We are confident that through this proce6e we are emerging better and stronger than ever.
Page 189 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. Thank you, Mr. Maddock and Mr. Thompson; we appreciate that.
Mr. Lothridge, you're recognized.
STATEMENT OF KEVIN L. LOTHRIDGE, PRESIDENT, AMERICAN SOCIETY OF CRIME LABORATORY DIRECTORS
Mr. LOTHRIDGE. Good afternoon, Mr. Chairman McCollum and members of the subcommittee. I'm pleased to have this opportunity to discuss with you ASCLD's role in the professional management of crime laboratories and to act as a resource for the committee.
The American Society of Crime Laboratory Directors is a not-for-profit professional society devoted to the improvement of crime laboratory operations through sound management practices. Its purpose is to foster the common professional interests of its members; to promote and foster the development of laboratory management principles and techniques; to acquire, preserve and disseminate information related to the utilization of crime laboratories; to maintain and improve communications among crime laboratory directors; to promote, encourage and maintain the highest standard of practice in the field of crime laboratory services. ASCLD's mission is the enhance the quality of the criminal justice system through forensic science by applying the best technologies, training, resources and practices for the timely availability of quality forensic products and services.
Membership in ASCLD is open to all individuals whose major duties include the management or direction of a crime laboratory, a branch crime laboratory, or a crime laboratory system. A crime laboratory is defined as a laboratory which employs one or more full-time scientists whose principal function is the examination of physical evidence for law enforcement agencies in criminal matters and who provide opinion testimony with respect to the physical evidence to the criminal justice system. The society is compose of crime laboratory directors, managers and supervisors from the United States and 17 foreign countries. The membership consists of biologists, chemists, document examiners, physicists, toxicologists, and law enforcement officers whose major function is the management of a crime laboratory.
Page 190 PREV PAGE TOP OF DOC
Accomplishments of ASCLD: ASCLD has developed several different programs that have been beneficial to the forensic science profession. These include the ASCLD/Lab Accreditation Program and the National Forensic Science Technology Center, a not-for-profit corporation designed to develop training and advanced degree programs to forensic scientists by distanced learning methods. The NFSTC also provides pre-accreditation audits to the laboratories preparing for ASCLD/Lab Accreditation. The ASCLD Scholarship Program which recognizes outstanding graduate and undergraduate forensic science students. Each year two students in a forensic science degree program from an accredited university are selected to each receive a monetary scholastic award and a certification of recognition. ASCLD members have served on many panels and committees including: the Office of Inspector General's panel on the FBI laboratory; the DNA advisory board, and the search committee for the new Director of the FBI laboratory.
Laboratory Accreditation which seems to be of interest today—the Crime Laboratory Accreditation Program of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board is a voluntary program in which any crime laboratory may participate to demonstrate that its management, operations, personnel, procedures and instruments, physical plant and security, and personal safety procedures meet certain standards. The accreditation process is one form of a quality assurance which may be combined with proficiency testing, continued education, and other programs to help the laboratory strive to give better overall service to the criminal justice system. The process of self evaluation that leads to accreditation is an invaluable management tool for the crime laboratory director. The fact that the laboratory chooses not to apply for accreditation does not imply that a laboratory is inadequate or that its results cannot be trusted.
Page 191 PREV PAGE TOP OF DOC
The Laboratory Accreditation Board has adopted four accreditation objectives that clearly define the purpose and nature of the program. They are: To improve the quality of laboratory services provided to the criminal justice system; to offer to the general public and users of the laboratory services a means of identifying throughout the Nation, and virtually the world, those laboratory facilities which satisfy accreditation criteria; to develop and maintain criteria which can be used by a laboratory to assess its level of performance and to strengthen its operation, and lastly, to provide an independent, impartial and objective system by which laboratory facilities can benefit from a total organizational review.
Main areas inspected include: facilities and equipment, written operation and technical procedures, interviews of all technical staff, and a review of casework reports and supporting documents.
The Major requirements. It is required for a quality assessment and quality control that the crime laboratory participate in a program or a combination of programs that include the following: One, periodic case report and case note review done on an internal basis. This type of review assures that the examiners are following the laboratory's established procedures and that the findings are properly documented, and, two, proficiency testing, internal and or external, involving the use of blind and or open samples of which the true results are unknown to the examiner prior to the analysis.
The accreditation process. Crime laboratory directors seeking information about laboratory accreditation direct their inquiries to the executive assistant at ASCLD/Lab. The reply to such inquiries is a copy of the accreditation manual. The process need not go any further; there is no obligation on the part of the crime laboratory director. He may elect to evaluate his own laboratory for the purpose of self improvement without seeking accreditation. This is done without incurring obligation or expense beyond the cost of the manual. When the crime laboratory director determines that his laboratory is prepared, he may elect to apply for formal accreditation following the instructions in the manual.
Page 192 PREV PAGE TOP OF DOC
The process may continue as follows: One, self-evaluation of the applicant laboratory; two, application and supporting documents filed by the applicant laboratory; on-site inspection by a team of trained inspectors; the inspection report considered by the ASCLD Laboratory Accreditation Board, and one year to remedy deficiencies before the final decision by the board; accreditation review completed by the laboratory annually and a full reinspection required every 5 years, and an annual maintenance fee of $500 must be paid by the accredited laboratory.
There are three types of standards that go into the accreditation program. The first one is essential: Standards that directly affect and have fundamental impact on the work product of the laboratory or the integrity of the evidence. The laboratory must meet 100 percent of the essential standards. Two, important standards, standards that are considered key indicators of the overall quality of the laboratory but may not directly affect the work product or the integrity of the evidence. The laboratory must meet 70 percent of the important standards. Lastly, the desirable standards, standards that have the least affect on the work product or the integrity of the evidence but which nevertheless enhance the work product of the laboratory. The laboratory must meet 50 percent of the desirable standards.
ASCLD has several goals that we want to accomplish to help the profession of forensic science. They include the delivery of quality forensic science service by supporting current and future forensic science initiatives such as the accreditation of 80 percent of all crime laboratories by the year 2000; the continued support of federal programs that provide research and development and technology transfer to State and local forensic laboratories. These include programs of the National Institute of Justice, Bureau of Alcohol, Tobacco and Firearms, the Drug Enforcement Administration, the Federal Bureau of Investigation, and the Department of Energy. And developing a continual funding source to help laboratories improve quality and provide the timely necessary forensic services to the criminal justice community.
Page 193 PREV PAGE TOP OF DOC
And in conclusion, Mr. Chairman, I have attempted to describe for the subcommittee what role ASCLD has in the professional management of crime laboratories and some goals we want to accomplish. I believe that in the future the scientific analysis of physical evidence will aid more investigations and enhance the criminal justice process. ASCLD wants to be the resource to this committee on matters concerning forensic science.
At this time I would be pleased to answer any questions the subcommittee has regarding ASCLD and forensic science.
[The prepared statement of Mr. Lothridge follows:]
PREPARED STATEMENT OF KEVIN L. LOTHRIDGE, PRESIDENT, AMERICAN SOCIETY OF CRIME LABORATORY DIRECTORS
The American Society of Crime Laboratory Directors (ASCLD) is a nonprofit professional society devoted to the improvement of crime laboratory operations through sound management practices. Its purpose is to foster the common professional interests of its members; to promote and foster the development of laboratory management principles and techniques; to acquire, preserve and disseminate information related to the utilization of crime laboratories; to maintain and improve communications among crime laboratory directors; to promote, encourage and maintain the highest standards of practice in the field of crime laboratory services.
ASCLD's mission is to enhance the quality of justice through forensic science by applying the best technologies, training, resources and practices for the timely availability of quality forensic products and services.
Page 194 PREV PAGE TOP OF DOC
I. ACKNOWLEDGMENTS
Good morning, Chairman McCollum, and Members of the subcommittee. I am pleased to have this opportunity to discuss with you ASCLD's role in the professional management of crime laboratories and to act as a resource for the committee.
II. INTRODUCTION
The American Society of Crime Laboratory Directors (ASCLD) is a nonprofit professional society devoted to the improvement of crime laboratory operations through sound management practices. Its purpose is to foster the common professional interests of its members; to promote and foster the development of laboratory management principles and techniques; to acquire, preserve and disseminate information related to the utilization of crime laboratories; to maintain and improve communications among crime laboratory directors; to promote, encourage and maintain the highest standards of practice in the field of crime laboratory services.
ASCLD's mission is to enhance the quality of justice through forensic science by applying the best technologies, training, resources and practices for the timely availability of quality forensic products and services.
III. MEMBERSHIP
Membership in ASCLD is open to all individuals whose major duties include the management or direction of a crime laboratory, a branch crime laboratory, or a crime laboratory system. A ''crime laboratory'' is defined as a laboratory which employs one or more full-time scientists whose principal function is the examination of physical evidence for law enforcement agencies in criminal matters and who provide opinion testimony with respect to physical evidence to the Criminal Justice System.
Page 195 PREV PAGE TOP OF DOC
The Society is composed of crime laboratory directors, managers and supervisors from the United States and 17 foreign countries. The membership consists of biologists, chemists, document examiners, physicists, toxicologists and law enforcement officers whose major function is the management of a crime laboratory.
IV. ACCOMPLISHMENTS
ASCLD has developed several different programs that have been beneficial to the forensic science profession. These include the ASCLD/LAB accreditation program and the National Technology Center (NFSTC), a not-for-profit corporation designed to deliver training and advanced degree programs to forensic scientists by distanced learning methods. The NFSTC also provides pre-accreditation audits to laboratories preparing for ASCLD/LAB accreditation. The ASCLD scholarship program, which recognizes outstanding graduate and undergraduate forensic science students. Each year two students in a forensic science degree program from an accredited university are selected to each receive a monetary ($1000.00) scholastic award and a certificate of recognition.
ASCLD members have served on many panels and committees including:
The Office of Inspector General's panel on the FBI Laboratory
The DNA advisory board
The Search committee for the New Director of the FBI Laboratory
Page 196 PREV PAGE TOP OF DOC
V. LABORATORY ACCREDITATION
The Crime Laboratory Accreditation Program of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) is a voluntary program in which any crime laboratory may participate to demonstrate that its management, operations, personnel, procedures and instruments, physical plant and security, and personnel safety procedures meet certain standards. The accreditation process is one form of a quality assurance program, which may be combined with proficiency testing, continuing education, and other programs to help the laboratory strive to give better overall service to the criminal justice system. The process of self-evaluation that leads to accreditation is in itself a valuable management tool for the crime laboratory director. (The fact that a laboratory chooses not to apply for accreditation does not imply that a laboratory is inadequate or that its results cannot be trusted.)
THE OBJECTIVES:
The Laboratory Accreditation Board has adopted four accreditation objectives that clearly define the purpose and nature of the program. They are:
1. To improve the quality of laboratory services provided to the criminal justice system.
2. To offer to the general public and to users of laboratory services a means of identifying throughout the nation those laboratory facilities which satisfy accreditation criteria.
Page 197 PREV PAGE TOP OF DOC
3. To develop and maintain criteria which can be used by a laboratory to assess its level of performance and to strengthen its operation.
4. To provide an independent, impartial and objective system by which laboratory facilities can benefit from a total organizational review.
Main Areas Inspected:
1. Facilities and Equipment
2. Written operating and technical procedures
3. Interviews of all technical staff
4. Review of casework reports and supporting documentation
The Major Requirements:
It is required for quality assessment and control that a crime laboratory participate in a program or combination of programs that include the following:
1. Periodic case report and case note review done on an internal basis. This Ape of review assures that the examiners are following the laboratory's established procedures and that the findings are properly documented; and
Page 198 PREV PAGE TOP OF DOC
2. Proficiency testing (internal and/or external) involving the use of blind and/or open samples of which the ''true'' results are unknown to the examiner prior to the analysis.
The Process:
Crime Laboratory directors seeking information about laboratory accreditation directs their inquiries to the Executive Assistant of the ASCLD/LAB. The reply to such inquiries is a copy of the Accreditation Manual. The process need not go any further; there is no obligation on the part of the crime laboratory director. He may elect to evaluate his own laboratory for the purpose of self-improvement without seeking accreditation. This is done without incurring obligation or expense beyond the cost of the manual. When the crime laboratory director determines that his laboratory is prepared, he may elect to apply formally for accreditation following the instructions in the manual.
The process may continue as follows:
1. Self-evaluation by applicant laboratory.
2. Application and supporting documents filed by applicant laboratory.
3. On-site inspection by a team of trained inspectors.
4. Inspection report considered by ASCLD/Laboratory Accreditation Board.
Page 199 PREV PAGE TOP OF DOC
5. One year to remedy deficiencies before final decision by the Board.
6. Accreditation review completed by the laboratory annually.
7. Full re-inspection required every five years.
8. An Annual maintenance fee of $500.00 must be paid by each accredited laboratory.
Types of Standards:
ESSENTIAL:
Standards that directly affect and have fundamental impact on the work product of the laboratory or the integrity. The laboratory must meet 100% of the Essential Standards.
IMPORTANT:
Standards that are considered key indicators of the overall quality of the laboratory but may not directly affect the work product or the integrity of the evidence. The laboratory must meet 70% of the Important Standards.
DESIRABLE:
Standards that have the least affect on the work product or the integrity of the evidence but which nevertheless enhance the work product of the laboratory. The laboratory must meet 50% of the Desirable Standards.
Page 200 PREV PAGE TOP OF DOC
VI. GOALS
ASCLD has goals that we want to accomplish to help the profession of forensic science. They include: The delivery of Quality Forensic Science Service, by supporting current and future forensic science initiatives. Such as:
1: The accreditation of 80% of all crime laboratories by the year 2000.
2 The continued support of federal programs that provide research and development and technology transfer to state and local forensic laboratories. These include programs of NIJ, ATF, DEA, FBI and DOE.
3: Developing a continual funding source to help laboratories improve quality and provide the timely necessary forensic services to the criminal justice community.
VII. CONCLUSION
Mr. Chairmen, I have attempted to describe for the subcommittee what role ASCLD has in the professional management of crime laboratories and some goals we want to accomplish. I believe that in the future the scientific analysis of physical evidence will aid more investigations and enhance the criminal justice process.
ASCLD want to be the resource to this committee on matters concerning forensic science.
Page 201 PREV PAGE TOP OF DOC
At this time, I would be pleased to answer any questions the subcommittee has regarding ASCLD and forensic science.
Thank you.
Mr. MCCOLLUM. Thank you very much, Mr. Lothridge. We will now go into the 5-minute rule, and I'll recognize myself for 5 minutes.
Mr. Maddock, today your testimony is consistent with that which we heard in the draft criticism or response by the FBI to the Inspector General's report which said, that the FBI, ''takes full responsibility for the failings which have been identified within its laboratory.'' That particular official response then goes on to take issue with many of the findings of serious misconduct by the FBI employees. I'm curious, just what is the Bureau taking responsibility for? I don't fully appreciate where you're drawing the line between what you're taking responsibility for and where you're saying, ''Hey, there really wasn't much of anything that was really wrong here.''
Mr. MADDOCK. Mr. Chairman, we take responsibility for the findings that the Inspector General rendered in his final report. We accept those. During preparation of our response we advocated positions that we felt were justified in support of our employees. They were considered; some of those positions were adopted by the Inspector General when formulating the final report; some were not. We stand by the findings of the Inspector General and accept the failings that he identified in his report.
Page 202 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. Well, the thing that strikes me the most about much of what I see in the Inspector General's report is the number of occasions where witnesses from the laboratory testified in court about things that either were beyond their expertise or things they fudged. Whether they did it intentionally or they did it unintentionally, it's pretty clear from that report, assuming we accept the basic premise of that report, that that's what they did. It is also clear that some of them did it, more than one time and that there was nobody checking them; nobody saying, ''Hey, wait a minute now. What's the quality of what we're saying on the witness stand?'' And that's a separate issue, of course, from the technical findings. How could that have happened? How could it have gone on as long as it did without anybody recognizing it as a really a serious problem?
Mr. MADDOCK. Mr. Chairman, there is no excuse for some of the management failures which occurred in the lab in the past, and I would concur with your observation that there was inadequate oversight of courtroom testimony. Even though the instances identified by the Inspector General were relatively few, there should have been no such instances that occurred.
Mr. MCCOLLUM. Mr. Whitehurst told us this morning that he first started writing these letters and making these concerns known about 1986 or 1987. He talked about how he talked to Former Director Sessions personally about it and was assured that Mr. Sessions was concerned and going to look into it. When Director Freeh took over he said he didn't personally talk with him, but he did talk with your office, the General Counsel's office, about this at some length. How do you explain that it took an Inspector General's audit to trigger the actual unearthing of the magnitude of this problem? How do you explain how your office, the General Counsel's office, and the FBI, internally, failed at the top to recognize these many, many allegations that Mr. Whitehurst and, I guess, some others were making and take them seriously enough to go question the people who were below you and management who obviously were ignoring the facts?
Page 203 PREV PAGE TOP OF DOC
Mr. MADDOCK. Mr. Chairman, I would respectfully contest some of your observations. The Office of the General Counsel did take many of the allegations raised by Mr. Whitehurst very seriously. In fact, we prepared a report for Director Freeh which noted that there was a substantial basis to some of the allegations raised by Mr. Whitehurst while also noting that many appeared not to be substantiated.
Before many of those recommendations could be implemented, the entire process was subsumed into the IG's investigation which resulted in this report. Having said that, I recognize that the FBI had failures in recognizing some of Mr. Whitehurst's early allegations particularly as they concerned the work of examiner Terry Rudolph. There were a number of internal reviews which failed to go far enough; which failed to recognize the seriousness of the issues presented, and I can offer no excuse for that. I am confident, however, in the procedures that we have in place and are implementing in preparation for accreditation. We're also having a review of the entire lab done by our Inspection Division with the assistance of outside scientists. That process will take several months and will begin next month.
Mr. MCCOLLUM. Well, I'm pleased that you're doing what you're doing; don't get me wrong. I sense that the whole picture of the lab is not as bad as the public may perceive it to be. On the other hand, I am extremely concerned about the fact that there seems to be a lack of willingness to truly lay responsibility on the doorstep of somebody above the immediate management in the laboratory. This matter had been perking around there for nearly nine years before it was fully explored by anybody—before anybody dug their feet into it. And to say, ''It's a management problem and a check problem down at the laboratory'' is not, to my way of thinking, sufficient. Somebody—it might not be Director Freeh and it might not be Director Sessions—but somebody in between had some responsibility that they didn't fulfill in my judgment. Now we talk about moving some people around who were the ones particularly pointed out by the IG, but that doesn't explain the lack of accountability by somebody in middle management or above who certainly should have been paying attention to this.
Page 204 PREV PAGE TOP OF DOC
Mr. MADDOCK. Mr. Chairman, I couldn't agree with you more, in fact, the responsibility lies with the former senior executive management of the lab. If you'll look at the Inspector General's report, he criticized management from the supervisory level all the way up to the Assistant Director level. The fact of the matter is that all of those executives are now retired from the FBI, and are no longer subject to accountability for their actions, but there were serious management failures which we hope through the processes that we're putting in place will not recur.
Mr. MCCOLLUM. Ms. Jackson Lee, you're recognized for 5 minutes.
Ms. JACKSON LEE. I think the real crux of this oversight hearing and our concern is restoring the integrity and as well the impact—negative impact that all of this may have had on the justice system as it relates to the FBI involvement. Now, I think we all have to make the commitment that even with retired executives and others that there has to be a steady and continuing concern and ability to solve this what seems to be an ongoing problem. So, I am likewise sort of at a loss on the length of time that it took to review this and turn ones attention to this matter, and I'm going to ask a series of questions along those lines.
First, I'd like to ask Mr. Lothridge: What is the world wide reputation of the FBI forensic lab?
Mr. LOTHRIDGE. It has been a leader since its beginning. We, at State and local laboratories have looked for them to implement technologies for us; provide training for us, as well as, handle cases that we could not do at our State and local laboratories.
Page 205 PREV PAGE TOP OF DOC
Ms. JACKSON LEE. And what do you perceive—I don't know if you have any international reach—but what do you perceive the reputation of the lab is now after the Inspector General's report; where does the lab stand in the eyesight of those who are in the business of criminal investigation, internationally and nationally?
Mr. LOTHRIDGE. I believe everyone's looking at the Inspector General's report and digesting what they can of it; making their own decisions based on that. Internationally, I have not heard anything related to that.
Ms. JACKSON LEE. And you think, however, that if the Inspector General's report is as we see it and read it, that the FBI can recoup their integrity and their respectability on the national forensic level?
Mr. LOTHRIDGE. I believe the steps they've taken to respond to the IG's report have been very good. I think seeking accreditation as well as bringing in outside scientists for a pre-accreditation audit shows that their asking for the community—they're trying to go out and get the communities feeling on their procedures and how they manage their laboratory, and I think that once they complete the accreditation process, I think a lot of the questions will be answered.
Ms. JACKSON LEE. Mr. Maddock, accreditation cannot be the only answer, and one of the accusations or allegations made was poorly trained FBI agents in these matters. How are you all responding to those allegations?
Page 206 PREV PAGE TOP OF DOC
Mr. MADDOCK. After Director Freeh took over, he instituted a program, whereby, a number of agents would be reassigned from their headquarters responsibilities to the field, basically, to get agents out in the field as investigators. A collateral benefit of that in terms of the lab was the ability to bring in non-agent scientists and, in fact, we're in the process of still bringing in a number of qualified scientists to fill vacancies in the lab.
Additionally, as Mr. Thompson mentioned in his statement, we are aggressively looking for a national caliber scientist to head up the lab; we are in the process of getting approval for additional high-level senior executive science positions in the lab and have recognized the need for enhanced science in the lab. We have instituted new programs in terms of training examiners for courtroom testimony, including a rigorous moot court program for new examiners; annual review of testimony; annual seminars for testimony, and, generally, taking a number of steps to make it clear to every examiner in the lab what the acceptable limits of courtroom testimony are, and at the same time, as I said, enhancing the level of science throughout the laboratory.
Ms. JACKSON LEE. One of the points that was made in the Inspector General's report was that he found—or at least in certain instances, and I refer to the Hastings case—that there was no intentional lying under oath, and I made the point that intentional lying under oath is certainly one aspect of intent, but if you lied there has to be impact.
I understand through your testimony and Mr. Thompson's testimony that with respect to past cases the FBI and the DOJ are committed to continue to review the cases of each of the 13 lab employees criticized in the Inspector General's report which resulted in a conviction. This review process is being conducted by a task force comprised of FBI and Department of Justice Criminal Division personnel. Why not outside involvement to truly give a sense that this is an independent review? And then, secondly, would you answer the question as what the status of the whistleblower implementation—Whistleblower Act implementation is in the FBI at this time?
Page 207 PREV PAGE TOP OF DOC
Mr. MADDOCK. Certainly, Congresswoman. We are going to employ outside scientists and are in the process now of contracting with those individuals to review the laboratory findings and testimony in cases that resulted in a conviction and the lab's work was material to that conviction. Thus, an outside individual who is experienced in a particular forensic discipline will be making an assessment of whether the laboratory findings were adequate and whether the testimony was in accord with those findings. We are going to insure ourselves that we look at the past cases of these individuals and identify any problems that could have arisen, and with regard to the whistleblower questions—I'm sorry, could you repeat your questions?
Ms. JACKSON LEE. Just—has it been implemented? The previous testimony suggested there was some difficulty implementing the Whistleblower Act to the FBI even though it had been amended for such; is that, in your opinion, in place, implemented in the FBI at this time?
Mr. MADDOCK. The FBI has whistleblower regulations, but they are not fully adequate as anticipated by the Whistleblower Protection Act. That placed a requirement on the President to develop additional enforcement mechanisms to make sure there was no retaliation against whistleblowers. The President recently delegated that authority to the Attorney General. The Department is in the process now of developing implementing regulations, and once those are developed then we'll be governed by those procedures as well.
Ms. JACKSON LEE. Let me thank you and Mr. Maddock—Mr. Maddock and Mr. Thompson for your integrity and commitment. Might I just suggest that possibly the addition of outside law enforcement officers, chiefs of police, others might be an appropriate addition to your task force.
Page 208 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. Thank you, Ms. Jackson Lee. Mr. Hutchinson, you are recognized for 5 minutes.
Mr. HUTCHINSON. Thank you, Mr. Chairman, and I appreciate the FBI's response to this and trying to address this very serious problem. I wanted to make a short statement, Mr. Maddock, and then ask a follow up of the question.
First, in your testimony you indicated that you are reviewing the cases of each of the 13 lab employees who have been criticized in the OIG report and that you're following a certain procedure: (1) Talking to the United States Attorney's office and determining if there was a conviction in the case; (2) If there was a conviction, talking to them to see if the testimony of the lab employee was material; (3) submitting it to an outside laboratory if it was material; and (4) making a disclosure to the prosecutor if all of that fits in with your framework.
I really believe that if you find that there was a conviction in the case and that the testimony of the lab employee was critical, that there should be a responsibility of the Department of Justice to provide that information beyond simply to the prosecutor. I think in fairness that there should be some consideration of giving that to the court. I hope you'll talk to the Attorney General, and encourage her to review this and set up a more stringent policy with more open disclosure. I do not believe this is sufficient what you've outlined.
Now I want to follow up on what the chairman was asking in regard to your testimony. You indicated that you recognized that we did not adequately investigate all of the allegations internally, referring to the allegations of Mr. Whitehurst. The question is, who did not adequately investigate those allegations? You don't need to give me names, but are there certain positions who failed to do their job in investigating those allegations?
Page 209 PREV PAGE TOP OF DOC
Mr. MADDOCK. Yes, sir. There was a failure from the Assistant Director level on down in terms of insuring an adequate review.
Mr. HUTCHINSON. How many individuals are we speaking of that failed to do their responsibility?
Mr. MADDOCK. There would be four positions in that chain.
Mr. HUTCHINSON. And are these all within the laboratory?
Mr. MADDOCK. Yes, sir.
Mr. HUTCHINSON. But the complaints of Mr. Whitehurst went outside the laboratory, did it not?
Mr. MADDOCK. Some of his complaints did; yes, sir.
Mr. HUTCHINSON. And who do they go to?
Mr. MADDOCK. Some of his complaints were investigated by the Office of Professional Responsibility.
Mr. HUTCHINSON. And did they act responsibly and investigate it appropriately?
Page 210 PREV PAGE TOP OF DOC
Mr. MADDOCK. They investigated some of the allegations very thoroughly, and I believe the IG's report concurs in that assessment, although the IG also noted that there was a lack of thoroughness in some aspects of some of the allegations. There were a number of allegations raised by Mr. Whitehurst some of which centered on forensic procedures; others centered on more individual and personal matters.
Mr. HUTCHINSON. Has any disciplinary action been taken on the four that you identified initially?
Mr. MADDOCK. On the four management positions?
Mr. HUTCHINSON. Yes.
Mr. MADDOCK. No, sir; they have all been retired. I think the last of those individuals to retire was several months ago, but they're all retired now.
Mr. HUTCHINSON. So the problems have been resolved by them retiring?
Mr. MADDOCK. The FBI is not in a position to take disciplinary action against former employees.
Mr. HUTCHINSON. OK. In regard to the latter, where you're speaking of the Office of Professional Responsibility, is there any disciplinary action going to be taken in regard to the way they handled this?
Page 211 PREV PAGE TOP OF DOC
Mr. MADDOCK. The entire report, as I mentioned in my statement, has been referred to the Justice Management Division, and they will be undertaking the review of all of the criticisms that were raised in the Inspector General's report. It will be their determination as to whether any additional action is warranted.
Mr. HUTCHINSON. Last, I'm pleased that you're improving the training of your lab personnel in court testimony. That has been a serious problem, and I know there's a human element here that you work with the U.S. Attorney, and you want to meet their expectations, but you have to guard against that, and I hope that you'll really improve the ethical standards there. I'm grateful for your testimony, and the way you all are addressing this. We have to have the highest quality of our laboratory, and I appreciate your commitment to that goal. Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Hutchinson. Mr. Wexler, you're recognized for 5 minutes.
Mr. WEXLER. Thank you, Mr. Chairman. Mr. Maddock, are you the guy in charge of the lab?
Mr. MADDOCK. No, Congressman. [Laughter.]
Mr. WEXLER. Oh, who—Mr. Thompson, you're in charge of the lab, okay. Who—when it says the FBI response on this stuff—when it says, ''The FBI does not believe that any lab examiner perjured himself.''—who's conclusion is that? I know its the FBI's, but who—is there an individual?
Page 212 PREV PAGE TOP OF DOC
Mr. MADDOCK. Congressman, if I could. I was responsible for the preparation of the FBI's response to the Inspector General's draft report.
Mr. WEXLER. OK, so then, Mr. Maddock, I assume then that you believe and the FBI concurs that no lab examiner appears to have perjured himself. Is that your statement?
Mr. MADDOCK. That was the finding of the Inspector General.
Mr. WEXLER. OK, and what did you examine to reach that conclusion?
Mr. MADDOCK. In making that statement, Congressman, we are recognizing the fact that the Inspector General determined that there was no finding of criminal misconduct or intentional misconduct on the part of any FBI employee.
Mr. WEXLER. OK, so—and again, I'm not trying to put words in your mouth, but your regurgitating the Inspector General's report that nobody perjured himself; is that it?
Mr. MADDOCK. Well, we think it's important to note that after an 18-month investigation, which was very thorough and involved a number of personnel including Assistant U.S. Attorneys and highly qualified scientists, that they did determine that there was no criminal misconduct.
Page 213 PREV PAGE TOP OF DOC
Mr. WEXLER. Well, did you ask any of these guys that worked in your department there—that apparently gave this false information or any of these people that changed these reports in a material manner which we learned the Inspector General concluded—did you ask them what was going on like why they just said they did a test when they didn't do a test just to sort of a—did you wonder why?
Mr. MADDOCK. Congressman, if I could, once the IG began his investigation we were removed from active investigation of issues surrounding the laboratory, and now the whole process has been turned over to the Justice Management Division to make a determination on——
Mr. WEXLER. I'm not trying to give you a hard time. Then, tell me if what I'm saying is a mischaracterization then: The FBI, then, doesn't believe anything; the FBI is regurgitating the Inspector General's report; is that fair?
Mr. MADDOCK. No, Congressman, I don't think that is fair.
Mr. WEXLER. OK. Would you please tell me how it is you've concluded—the FBI has concluded that no lab examiner has perjured him or herself?
Mr. MADDOCK. If I could, the FBI recognizes the serious management and performance failures that were identified in the Inspector General's lengthy investigation.
Page 214 PREV PAGE TOP OF DOC
Mr. WEXLER. I appreciate that.
Mr. MADDOCK. We—because we were not able to independently investigate any of these allegations during the pendency of the IG's investigation, we were not in a position to make any determination as to whether anyone committed any additional acts with criminal culpability. So, it was simply an impossibility for us to proceed.
Mr. WEXLER. OK. So, other than the IG's report then there is no other basis for the FBI concluding that there was no perjured testimony from an FBI examiner? Would that be fair to say—a lab examiner?
Mr. MADDOCK. Congressman, again, I don't mean to argue here, but I did outline the process that we will follow for reviewing past cases; we're going to look at the past cases of the 13 individuals who were criticized in the Inspector General's investigation, and if, during the course of that review, additional problem incidents occur then appropriate action will be taken. Additionally,——
Mr. WEXLER. How many examiners are there, if I may ask, lab examiners?
Mr. MADDOCK. They're divided, Congressman, into two categories: We have agent examiners; we have approximately 40 who are performing work at the bench level; we have over 100 professional support examiners who we've brought on in the course of the last several years, and we will be hiring up to 126 shortly.
Page 215 PREV PAGE TOP OF DOC
Mr. WEXLER. The report earlier, if I understood it, by and large related to Dr. Whitehurst's assertions. Have you limited your examinations to Dr. Whitehurst's assertions, or how about all of the other examiners that Dr. Whitehurst isn't—well, may not be familiar with?
Mr. MADDOCK. Congressman, if I could, I outlined briefly a little bit earlier the fact that our Inspection Division with the assistance of outside scientists from the National Forensic Science Technology Center are going to be conducting a section-by-section review of the entire laboratory. Additionally, as Mr. Lothridge indicated in his statement, in the accreditation process any issues concerning laboratory procedures or protocols will be identified.
Mr. WEXLER. OK, if I understood the testimony earlier, the investigation relating to whether or not perjury actually happened related to the items that Dr. Whitehurst identified. Just for your information—I don't mean to get to crazy over words—but the FBI—and I guess these are yours—the FBI does not believe that any lab examiner perjured himself. The report doesn't, if I understood it correctly, go to any and all lab examiners; it goes to just those that Dr. Whitehurst was courageous enough to identify, and I'm just curious—I mean, today, how many reports are being drafted where somebody is changing the words—I'm sure unintentionally—but is changing the words, and if Dr. Whitehurst doesn't tell us, who will?
Mr. MADDOCK. Congressman, this—the response is obviously limited to the scope of the IG's investigation. In regard to your question about anyone changing reports, that practice has been stopped; it was stopped years ago. It was reiterated that it is an unacceptable procedure. We have adopted a new procedure where each auxiliary examiner signs his own report; it is included verbatim in the overall report so that it is now impossible for a change to be made in an auxiliary examiner's report.
Page 216 PREV PAGE TOP OF DOC
Mr. WEXLER. Do you think the word—any lab examiner—do you think that word, ''any'' in second thought, do you think that that's an appropriate statement? The FBI does not believe that ''any'' lab examiner perjured himself?
Mr. MADDOCK. I do, Congressman, because it's limited to the scope of the Inspector General's investigation.
Mr. WEXLER. And how many examiners did they examine?
Mr. MADDOCK. I don't have the answer for that, sir.
Mr. WEXLER. Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Wexler. Because we have a limited number of people here to ask questions at the moment, I'm going to yield myself some more time. I think we need to explore some of these things to gain a better understanding, and I'll yield to you again, Mr. Wexler, if you wish to stay, in a couple of minutes.
I'm curious about some things, Mr. Maddock, in one particular part of your written testimony, you stressed the report only finds—that's the IG's report—problems in three units of the lab and that the FBI does not have any indication that the remaining 32 units have experienced similar performance and management problems. But since those three units are the only ones that the IG actually looked at, how can you possibly know that the other 32 units don't have any problems?
Page 217 PREV PAGE TOP OF DOC
Mr. MADDOCK. Mr. Chairman, I recognize, obviously, that we can't know the unknown, if you will. However, I would point out that the IG's investigation did look at those three units and found problems regarding only a few individuals in those units and on only a small number of cases. Their investigation went beyond allegations that were raised by Mr. Whitehurst, and encompasses anything that they encountered during the course of that investigation.
I think the best comfort that I can offer for the Congress, for the American public, is the fact that we are undertaking a further inspection of the entire lab with the aid of outside scientists; that we're going to conduct a review of the past cases of all the individuals who were criticized in the report; and that we are going through the accreditation process. All of those procedures should significantly aid us in identifying any remaining problems and in ensuring that corrective action, where warranted, is taken.
Mr. MCCOLLUM. Well, in a recent front page piece of The Wall Street Journal, they particularly criticized Mr. Malone, I think, for something far beyond the Alcee Hastings question that the IG looked at. Are you looking at Mr. Malone's work product, and are you examining that product now? Does anybody have that under review?
Mr. MADDOCK. Yes, Mr. Chairman; we're going to examine the past cases of Mr. Malone.
Mr. MCCOLLUM. In comments that have been made in the past—and I want to clarify this point because I thought I heard you say something different here today—the FBI has stated that it didn't believe that full-scale external inspections of segments of the lab should be done at 5-year intervals, and that some limited outside review and review by the FBI Inspections Division should suffice. Did I hear something today to that effect. Mr. Thompson.
Page 218 PREV PAGE TOP OF DOC
Mr. THOMPSON. No; the FBI laboratory rejected the accreditation process for many years. The accreditation process, as I believe Mr. Lothridge mentioned, commenced back in the early eighties; the FBI laboratory did not embrace that process. We believe that was a bad decision, and it was three years ago in consultations between Director Freeh; my predecessor, Milt Aldrich, and myself that we decided to go ahead and seek accreditation and came to the conclusion that it was indeed profitable and necessary for the FBI laboratory.
Mr. MCCOLLUM. So, do I understand that you now believe that a full-scale external inspection of segments of the lab should be undertaken in 5-year intervals or is that what is then contemplated by the accreditation or how does that work?
Mr. THOMPSON. The 5-year reinspections are part of the ASCLD Laboratory Accreditation process. We do not believe that we should confine our activities in monitoring our work to ASCLD Accreditation. We're implementing, as Mr. Maddock mentioned, a full-scale inspection of our laboratory by our Inspection Division with the assistance of outside experts.
We are layering on a variety of procedures that are designed to enable us to audit past work; for instance, we're going to form an audit group within our Quality Assurance Unit which will be looking at a representative sample of closed cases and doing a top to bottom review of those cases, to include the quality of the testimony, and report directly back on those findings to the Assistant Director with the objective to identify any deficiencies or any trends emerging that we need to address.
Page 219 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. So, you're going to do yours in addition to the external review that will come automatically when Mr. Lothridge's organization finishes its initial accreditation process every 5 years. Is that correct?
Mr. THOMPSON. That's correct, Congressman.
Mr. MCCOLLUM. Now, explain something to me about these examiners: are there non-agent examiners in the lab right now?
Mr. THOMPSON. Yes, we have approximately 63 agents in the laboratory; about 40 of those are actually on the bench conducting forensic examines. Starting in 1992, we undertook a project to create a mix of agent examiners with professional support examiners, and, in fact, the number of professional support examiners exceeds the number of agents.
Mr. MCCOLLUM. There's some concern that's been expressed today about the possibility of the non-agent examiners—the scientists who aren't agents—being treated unfairly. Is there any indication that that concern is true? Do you have any way of making sure that such examiners get as much fair treatment as agents in terms of promotions and opportunities? What do you say about that?
Mr. THOMPSON. Let me first say that the people that we are bringing on board which includes individuals with PhD's, master's and, in addition, extensive experience in forensic science, are of top notch quality. We are extremely pleased with them; they are moving into positions of responsibility; they're being assigned to very significant cases; and thus far, the feedback that we are receiving from prosecutors and other customers of the laboratory is that they are performing in an admirable, outstanding manner. It is our design that we will bring these people along and afford them every opportunity to compete for promotions to the Unit Chief level, and I foresee that occurring when these people mature in their current position, and demonstrate aptitudes in that area. I believe this laboratory is going to be well served by that.
Page 220 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. What's your view of the IG's recommendation that someone with a science background be—from the outside of the laboratory—be brought in to run the lab?
Mr. THOMPSON. At this juncture, I think it's a very excellent decision that the director has made. First and foremost, the position of Assistant Director—and I've spoken with the Director about this—should be a scientist; that individual should bring scientific credentials, certainly, management skills, and leadership skills. I think for the overall credibility of the work that's performed in the laboratory, that it's appropriate to have a world class scientist in the position. Certainly, someone coming in from the outside is going to have to inure himself or herself into the culture of the FBI; there will be a steep learning curve, but it's our intent to bring the type of person in who will have instant credibility in the position and will be up to the job of learning what he or she needs to in order to perform the job——
Mr. MCCOLLUM. Do you have a target date for accomplishing this?
Mr. THOMPSON. We have brought on the services of a headhunting firm which is now assisting us in identifying suitable candidates. We plan to have from that outfit a list of candidates towards the end of June. We will go through an interview process, and it's our objective to have a person selected for the position on August 1st.
Mr. MCCOLLUM. Now, I understand that all of the folks who are employed at the FBI laboratory are subject to the civil service hiring requirements; I don't know if the new head of the lab would be or not, but does this restriction cause a problem that doesn't exist at the CIA or NSA? I know we have some special exceptions over there for allowing higher salaries to be paid to the scientists and it is my impression that we don't have those same kinds of exceptions for this laboratory.
Page 221 PREV PAGE TOP OF DOC
Mr. THOMPSON. No, that is a very real problem in terms of recruiting the types of people that we believe need to be in the laboratory and probably more critical is retaining these people. We are able to bring them in at a fairly comfortable grade level, but unfortunately, to attract the types of people that we need, we have to bring them in at a level where they have topped off, and we thus can offer them little promotional opportunities at the bench level unless they start getting into management positions. For instance, we've paid a price because of those restrictions—we had a computer scientist come in about a year ago; he was, after six months on the job, awarded the Director's award for excellence, and we lost him six months after that because he got a higher paying job that we just could not compete with.
Mr. MCCOLLUM. It sounds like that's something we need to address, and I gather it's going to take legislation to do that.
Mr. THOMPSON. I would agree.
Mr. MCCOLLUM. All right. I want to direct my last question to Mr. Lothridge about State labs and the future of the FBI's work. My impression is that State laboratories are now beginning to grow; that you're accrediting crime laboratories. What do you see for the future with respect to that, and how will that impact the work of the FBI, which has historically done work for States as well as for the Federal prosecutors.
Mr. LOTHRIDGE. Well, I think with the use of more scientific evidence in court the State labs are going to be quite busy, and their going to have to able to develop or, actually, transfer the techniques that the FBI laboratories have. I don't think that, right now, cases are completed in a timely manner. I think for the criminal justice process to really benefit from scientific evidence, cases need to be on the investigative side while they're still investigating the crime versus while they're prosecuting the crime, and with that, I think some resources need to be given to the State and local laboratories to enhance their capability to provide the quality time necessary——
Page 222 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. But what you're saying is that the need is so great that even as the stat laboratory capability has developed, the workload of the FBI crime lab is not going to diminish in the foreseeable future?
Mr. LOTHRIDGE. That is correct?
Mr. MCCOLLUM. Mr. Wexler, would you like some follow up questions?
Mr. WEXLER. Yes, please, Mr. Chairman. I'm going to direct my questions to Mr. Thompson if he doesn't mind, and if it's not your area of expertise, and it's Mr. Maddock's, please just let me know.
I'm floored—well, you had an opportunity to review the Inspector General's report, I assume?
Mr. THOMPSON. Yes, sir.
Mr. WEXLER. OK. I guess I'm somewhat floored by this statement of the FBI: ''The FBI is aware of no instance in which an FBI employee failed to disclose exculpatory evidence,'' and yet, in the Inspector General's report—if you don't mind, I'll just read the sentence or two—''We found other instances of examiners giving inaccurate testimony. In a hearing conducted by the investigating committee, the Judicial Conference of the 11th Circuit, regarding then Judge Alcee Hastings, the laboratory examiner testified falsely that he had performed a certain scientific test when, in fact, another examiner had performed the test, and he also testified inaccurately regarding the results and significance of the test.''
Page 223 PREV PAGE TOP OF DOC
Now, I'm not Congressman Hasting's spokesperson; I know very little about the case, but let's go back to you—the FBI's response: ''No exculpatory evidence?'' Please, is that square with the investigative report?
Mr. THOMPSON. The issue in that case involved whether or not a particular strap had been cut or was broke because it was caught and pulled apart. Both the FBI examiners, including Mr. Malone and the other examiner in the Materials Analysis Section, fully concurred in that opinion, and that was the key piece of evidence. Mr. Malone, as the report found, testified that he had participated and had conducted the test to determine that. In fact, he had not personally conducted the test but was in the same room with another individual. So, the—that discrepancy does not, in my estimation, constitute——
Mr. WEXLER. ''Discrepancy,'' with all due respect—with all due respect, I don't know if it's a discrepancy or a falsehood, but the Inspector General concluded it was a falsehood; I don't know, that's the Inspector General—but I guess for you it's just a discrepancy.
Mr. THOMPSON. I would agree that it was a falsehood.
Mr. WEXLER. Item No. 1, quoting the FBI response—another item, excuse me—''There's no information to support allegations that evidence was 'fabricated' ''—and that's in a quote—''or 'tampered with' ''—in a quote—''by laboratory employees.'' Inspector General's report again, not me, ''Three Explosive Units examiners altered, omitted or improperly supplemented some of Dr. Whitehurst's internal reports as they were being compiled into an official report of the laboratory. Hello? I don't mean to be disrespectful; either three explosive employees unit examiners—either they altered or they didn't alter; which did they do? The Inspector General seems to suggest they did?
Page 224 PREV PAGE TOP OF DOC
Mr. MADDOCK. If I may, because I prepared that response.
Mr. WEXLER. Please.
Mr. MADDOCK. The finding of the Inspector General concerned tampering with evidence or fabricating evidence; there were no such findings. As you're aware, laboratory reports are generally hearsay, and are not evidence. It does not excuse the fact that changes were made to auxiliary examiner reports. That practice has stopped; people who did those things are going to be reviewed for disciplinary action, and there's simply no excuse for it. I'm not trying to excuse it; it was a wrong practice; it has been corrected.
Mr. WEXLER. Is your response here that these reports don't qualify for your statement here, because they're not evidence; is that it? The reports that the Inspector General's citing?
Mr. MADDOCK. Congressman, again, I don't think your——
Mr. WEXLER. It's really fairly simple——
Mr. MADDOCK. No, no, Congressman——
Mr. WEXLER [continuing]. Either evidence has been fabricated or it hasn't; either is has been tampered with or it hasn't.
Page 225 PREV PAGE TOP OF DOC
Mr. MADDOCK. Congressman, it has not; it has not. There was no finding by the Inspector General in a year and a half long investigation, which involved four Assistant U.S. Attorneys and five respected scientists, that there was any evidence tampering or evidence fabrication; there simply was no such finding.
Mr. WEXLER. But on page 6, tell me what in this sentence suggests there was no finding: ''Three Explosive Unit Examiners altered, omitted or improperly supplemented some of Dr. Whitehurst's internal reports as they were being compiled into an official report of the laboratory.'' Are these reports not used at trial to either substantiate somebody's testimony or to corroborate the testimony or to find differences with the testimony?
Mr. MADDOCK. Congressman, the reports themselves are not evidence, so the results of these——
Mr. WEXLER. So, your answer is, then, these reports may have been altered, but it doesn't qualify for your statement, because they're not evidence?
Mr. MADDOCK. Congressman, I believe I explained that the alteration of reports is a wrong practice; it was corrected years ago; there are procedures in place to make sure that it does not happen again. That is a distinguishable thing from the finding of the Inspector General concerning tampering with evidence and fabricating evidence; there was no such finding.
Mr. WEXLER. If I may, Mr. Maddock, what are these reports used for? Are they ever provided to the prosecution or the defense?
Page 226 PREV PAGE TOP OF DOC
Mr. MADDOCK. The reports are provided; yes, sir.
Mr. WEXLER. They are provided; to whom?
Mr. MADDOCK. Well, the reports are given to the prosecutors.
Mr. WEXLER. Are they ever provide to the defense?
Mr. MADDOCK. The prosecutors would make such disclosure.
Mr. WEXLER. OK, and what—and then what—if they're used in the forum of the prosecutor, what does the prosecutor do with them? Sir, does he ever refer to those reports in the course of a trial?
Mr. MADDOCK. Well, the testimony of the examiner is what is at issue.
Mr. WEXLER. Does the defense use the reports to cross-examine the prosecution's witnesses?
Mr. MADDOCK. I'm sure they do.
Mr. WEXLER. Sir, aren't the reports used, then, as evidence?
Page 227 PREV PAGE TOP OF DOC
Mr. MADDOCK. Well, Congressman, I don't want to quibble with you, I mean the reports themselves——
Mr. WEXLER. I'm not quibbling either; we're talking about the integrity of the FBI——
Mr. MADDOCK. Congressman, I am not disputing your point. Your point is that the changing of those reports is wrong.
Mr. WEXLER. No.
Mr. MADDOCK. The FBI understands that the changing of those reports is wrong.
Mr. WEXLER. No, Mr. Maddock, with all due respect, that is your point. My point is you have made a statement on behalf of the FBI of the United States, and the statement is, ''There is no information to support allegations that evidence was fabricated or tampered with by laboratory employees.'' My point is that that is a false statement. Your point is that tampering is wrong; I agree with you. My point is that the FBI's response to the wrong behavior is also, unfortunately, not nearly as forthright as it ought to be.
Mr. MADDOCK. Well, Congressman, I would dispute that, and I would also suggest that you—that that same allegation would apply to the Inspector General, because that was his finding.
Page 228 PREV PAGE TOP OF DOC
Mr. WEXLER. Agreed. Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Wexler.
Mr. Lothridge, I'm just curious if you could tell us what the accreditation standards are; how they're determined, and how they're going to be determined relative to this laboratory?
Mr. LOTHRIDGE. The accreditation standards are put forth in the accreditation manual—do we have a copy? We'll be glad to leave this with you, so you have a copy of the accreditation manual.
Mr. MCCOLLUM. But how are they determined?
Mr. LOTHRIDGE. They're determined by a peer consensus group of the American Society of Crime Laboratories/Laboratory Accreditation Board.
Mr. MCCOLLUM. And those are scientists?
Mr. LOTHRIDGE. Yes, scientists and managers of laboratories.
Mr. MCCOLLUM. And how long has this been done?
Mr. LOTHRIDGE. Since the early eighties.
Page 229 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. All right. Mr. Maddock or perhaps Mr. Thompson, why then did it take so long for the FBI to come to the conclusion that accreditation was something that it should do? Why it did take this report for the FBI to determine that it needed accreditation?
Mr. MADDOCK. We've asked that question during the course of this review, and I think Mr. Thompson would echo these comments: Management had previously failed to consider the benefits of accreditation; there was some sense that, we, the FBI, we're the largest forensic lab; that we knew the best way to approach all these issues; that we had a role in training the individuals who would go then, and accredit these labs, and, clearly, it was a failure to appreciate all the benefits from accreditation, and it was a decision that was far too long in coming, and we regret, obviously, waiting.
Mr. MCCOLLUM. Well, I've kept you a long time today, and I'm not going to keep you longer, but I have one comment—kind of point—that I want to have made today that strikes me about this whole process. I've heard ever since I've been in the Crime Subcommittee, now, almost 17 years, about the culture of the FBI. Some of it is very good; some of it at times is not so good. It seems to me in looking at this that one of the problems with the attitudes that some individuals had, and that the IG unearthed, is that they went to court to prove the case for the prosecution; that they were willing to do whatever it took. It may not be that they did it intentionally, but they were going to do their darndest to prove the case. That culture of being so pro-prosecution in itself is a problem in a scientific environment; in a laboratory where objectivity should be sought. It seems to be a clash between the historical culture of the FBI as being the investigator and the ''Let's go get 'em'' law enforcement pro-prosecution arm. Is that something that can ever be erased, or should it be erased in the situation with respect to this crime lab? Mr. Thompson perhaps that's best for you.
Page 230 PREV PAGE TOP OF DOC
Mr. THOMPSON. Congressman, certainly some concerns have been raised in that regard. I would first submit to you, though, that FBI agents in the laboratory have enjoyed a reputation of being impartial, unbiased, and being fiercely independent. It was commonly known—and I came up on the investigative side of the FBI—that if you wanted a fair and objective opinion on a piece of forensic evidence, you needed and would want to send it to the FBI laboratory. In fact, it was frustrating at certain junctures in the investigation when you, as an investigator, had a certain theory on the case, and you would send some evidence in the FBI laboratory hoping that they would confirm your theory. Very frequently the laboratory rendered an opinion that did not agree with your theory.
And I think, also, if you examine the work of the FBI laboratory over the years, you will realize that much of its work does not incriminate or inculpate subjects, but rather, exonerates them or eliminates them. 25 percent of the work in the DNA Unit, for example, ends up excluding subjects, and I think everyone in the laboratory would embrace the notion that the most important thing for the agency to do is to identify the right individual, the person who is truly responsible for the crime, and conducting analyses that are biased or slanted towards someone's prosecutive or investigative theory is not in the end going to accomplish that.
Mr. MCCOLLUM. But am I reading it wrong that two or three of the principal figures investigated by the IG, who were witnesses in these cases, appear to have crossed that threshold, and were ardently trying to prove the case by giving the best testimony possible to make the case? That's the way it looks to me; doesn't it look that way to you?
Mr. THOMPSON. I would agree that that's, in part, true.
Page 231 PREV PAGE TOP OF DOC
Mr. MCCOLLUM. And that we ought to do everything we can to make sure that doesn't happen in the future?
Mr. THOMPSON. I would agree.
Mr. MCCOLLUM. Mr. Wexler, you have one or two quick ones, I understand, but we've got to let these gentleman go, so please be brief.
Mr. WEXLER. Mr. Thompson, did Mr. Malone report directly to you?
Mr. THOMPSON. No; I came into the laboratory in 1994, and he had left before that.
Mr. WEXLER. Do any of the people that were identified by the Inspector General as having problematic reports or problems with—do you have any association or role with any of those individuals?
Mr. THOMPSON. Yes.
Mr. WEXLER. And what was your role?
Mr. THOMPSON. They were in my chain of command. Most of the individuals that are addressed in the report are either bench level Examiners or Unit Chiefs; they then, in turn, report to a Section Chief and the Section Chief, in turn, reports to the Division front office where I'm assigned.
Page 232 PREV PAGE TOP OF DOC
Mr. WEXLER. And do—I won't take up, Mr. Chairman, any more of your time—but did you, on a fairly routine basis, review their work?
Mr. THOMPSON. The role of actually affording the work of an examiner, both on administrative and technical review, is the responsibility of the Unit Chief, so I did not directly review that work for its technical or administrative accuracy or competence.
Mr. WEXLER. The Unit Chief would have done that?
Mr. THOMPSON. That's correct.
Mr. WEXLER. For each of these individuals?
Mr. THOMPSON. That's correct.
Mr. WEXLER. Thank you.
Mr. MCCOLLUM. Thank you, Mr. Wexler. Mr. Maddock, I just would like to close by commenting that I saw in the reports—that perhaps got under Mr. Wexler's skin a little bit and in some of the comments that were made in your testimony—as a flavor, the same type of thing I saw a little bit of when we were looking at the WACO case a couple of years ago: and that is a tendency for FBI agents and the FBI culture to say, ''We're the best; we're proud of it; we don't make mistakes, and when we do, they're very rare,'' and to minimize those mistakes. I'd like to believe that is true in the whole scheme of things; I think the FBI is the greatest law enforcement agency of any type in the world. It still is; it has been, and it still is.
Page 233 PREV PAGE TOP OF DOC
It's a huge agency, though, and there are mistakes that are made. You've acknowledged some of those today, but the very way that there's this defensive mechanism that appears to be out there, and what reactions there are to those mistakes that are made, compounds in some ways the problem.
It may not be readily apparent when you're preparing the testimony or when the statement is being issued by Director Freeh or someone else, but that is a part of the problem; the public gets the impression there's a bit of an arrogance here, and that the mentality that ''Indeed, we can do no wrong'' is natural. There's human nature involved in this to some extent, but it is greater, it seems to me, within the FBI than it is in other agencies—maybe because of its long history.
But I do not want these hearings to conclude with the impression that this committee feels that the FBI is somehow in a state of collapse or weakened or corrupted or anything of that sort; that is not the impression that I have; that is not the impression this subcommittee has. We are very appreciative of the fact that the efforts have been made immediately to follow the Inspector General's recommendations; that the crime laboratory appears to be on its way to being completely revitalized; that in all probability the number of these kinds of cases are fairly restricted, though you're still looking at them to examine the situation, and that on the whole the FBI is still doing a magnificent job, considering all of the crime it has to fight and all of the scientific research that needs to be done and determinations that need to be made. But there is room for self-criticism; there is room for some of us to be critical, and this is one of those cases which deserves criticism, I think.
Page 234 PREV PAGE TOP OF DOC
So, I want to thank you for coming out today, and thank you for tolerating our little bit of intolerance for a reason that I think is pretty apparent.
Mr. Lothridge, we want to thank you for coming a long way to be with us today. Mr. Thompson, we appreciate what you're doing to try to get the accreditation process implemented; you've provided a good service by being here today. Thank you very much.
This hearing is adjourned.
[Whereupon, at 2:04 p.m., the subcommittee adjourned.]
50–136 CC
1997
THE ACTIVITIES OF THE FEDERAL BUREAU OF INVESTIGATION (PART I)
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
Page 235 PREV PAGE TOP OF DOC
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
ON
ACTIVITIES OF THE FEDERAL BUREAU OF INVESTIGATION
MAY 13, 1997
Serial No. 58
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
Page 236 PREV PAGE TOP OF DOC
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
Page 237 PREV PAGE TOP OF DOC
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTH, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Crime
BILL McCOLLUM, Florida, Chairman
STEVEN SCHIFF, New Mexico
STEPHEN E. BUYER, Indiana
STEVE CHABOT, Ohio
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
CHARLES E. SCHUMER, New York
SHEILA JACKSON LEE, Texas
MARTIN T. MEEHAN, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
Page 238 PREV PAGE TOP OF DOC
PAUL J. MCNULTY, Chief Counsel
GLENN R. SCHMITT, Counsel
DANIEL J. BRYANT, Counsel
NICOLE R. NASON, Counsel
DAVID YASSKY, Minority Counsel
C O N T E N T S
HEARING DATE
February 12, 1997
OPENING STATEMENT
McCollum, Hon. Bill, a Representative in Congress from the State of Florida, and chairman, Subcommittee on Crime
WITNESSES
Alcorn, Daniel S., Counsel, on Behalf of the National Association of Criminal Defense Lawyers
Bromwich, Michael R., Inspector General, Department of Justice
Lothridge, Kevin L., President, American Society of Crime Laboratory Directors
Page 239 PREV PAGE TOP OF DOC
Maddock, James M., Deputy General Counsel, Federal Bureau of Investigation
Thompson, Donald W., Acting Assistant Director, Laboratory Division, Federal Bureau of Investigation
Whitehurst, Supervisory Special Agent, Federal Bureau of Investigation
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Alcorn, Daniel S., Counsel, on Behalf of the National Association of Criminal Defense Lawyers : Prepared statement
Bromwich, Michael R., Inspector General, Department of Justice: Prepared statement
Conyers, Hon. John, Jr., a Representative in Congress From the State of Michigan: Prepared statement
Jackson Lee, Sheila, a Representative in Congress From the State of Texas: Prepared statement
Kohn, Sdtephen M., Chairperson of the National Whistleblower Center and Attorney for Dr. Frederic Whitehurst: Prepared statement
Page 240 PREV PAGE TOP OF DOC
Lothridge, Kevin L., President, American Society of Crime Laboratory Directors: Prepared statement
Maddock, James M., Deputy General Counsel, Federal Bureau of Investigation: Prepared statement
Thompson, Donald W., Acting Assistant Director, Laboratory Division, Federal Bureau of Investigation: Prepared statement
Whitehurst, Supervisory Special Agent, Federal Bureau of Investigation: Prepared statement
(Footnote 1 return)
Numerous other FBI employees violated the disclosure requirements of EO 12731. The problems in the crime lab caused by the misconduct of certain employees and the failure of the crime lab to adhere to the basic standards of accreditation were well known to hundreds of FBI employees. The vast majority to these employees violated the reporting requirement set forth in EO 12731. These performance failures can be attributed to a number of factors, including the failure of the President, Attorney General and FBI Director to implement the Whistleblower Protection Act of 1989, the culture of intimidation which exists within the FBI, and the resistance of the FBI to outside oversight.
(Footnote 2 return)
Dr. Whitehurst has been calling attention to shoddy FBI lab practices since 1986. Three previous internal ''investigations'' of his allegations, conducted by FBI officials, concluded there were no problems.
(Footnote 3 return)
One need only look at the U.S. Department of Justice, OJP–NIJ's own work, the Research Report of June 1996, ''Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial,'' for proof of the importance of scientific analysis in criminal cases [hereinafter referenced as Convicted by Juries, Exonerated by Science]. We have submitted copies of this revealing government report to Subcommittee staff, and ask that it be made a part of the record of this hearing.
(Footnote 4 return)
NACDL, et al v. U.S. Department of Justice, D.D.C., Civil No. 97–372 (GK), filed 2/25/97, amended 3/3/97. While successful in disgorging for the public from the DOJ the Inspector General's conclusory report, we have yet to get for the American people the further information it needs—the underlying notes and original source materials used by the Inspector General in reaching his report conclusions.
(Footnote 5 return)
See e.g., Paul Craig Roberts, ''Whatever Happened to Justice?,'' Washington Times, May 7, 1997, at A13, wherein he observes: ''Getting convictions has become more important than getting the right person. A recent 517-page report by the inspector general of the Justice Department shows what has happened. * * * [For instance,] [t]he report concludes that the FBI's explosives expert and key witness in the World Trade Center trial 'worked backward.' Instead of objectively examining the evidence, the agent 'first determined the result he wanted and then tailored his testimony to reach that result.' The inspector general is 'deeply troubled that his [the agent's] testimony on direct examination may have misled the court.' '' In the Oklahoma City case, the report concludes that the FBI 'repeatedly reached conclusions that incriminated the defendants without a scientific basis.' When the FBI ceases to give suspects the benefit of the doubt and, instead, tailors evidence to obtain their conviction, justice is dead.'' [hereinafter Roberts (quoting IG Bromwich)]
(Footnote 6 return)
See e.g., Roberts, id.
(Footnote 7 return)
Whitehurst v. Federal Bureau of Investigation, No. 96–572 (GK), slip op. (D.D.C. Feb. 4, 1997) (Kessler, J.), at 2.
(Footnote 8 return)
''The Unscientific F.B.I. Lab'' (editorial), New York Times, April 17, 1997, at A34.
(Footnote 9 return)
''Lab Report'' (editorial), Washington Post, April 19, 1997, at A20.
(Footnote 10 return)
''FBI Needs Repair:'' (editorial), Arizona Republic, April 18, 1997.
(Footnote 11 return)
''Poor Lab Work Gives Both FBI, Justice a Black Eye'' (editorial), USA Today, April 17, 1997, at A14.
(Footnote 12 return)
Lab Report, at 2–3.
(Footnote 13 return)
See Steven A. Caps, ''FBI lab probe hits UNABOM case,'' Washington Times, April 17, 1997, at A3.
(Footnote 14 return)
See Jo Thomas, ''A Tarnished Case: Flaws at F.B.I. Lab Offer Latest Setback to Prosecutors in Oklahoma City Bombing,'' New York Times, April 17, 1997, at A1.
(Footnote 15 return)
See FBI Lab Report at 392–399, 446. See also Mireya Navarro, ''Doubts About F.B.I. Lab Raise Hopes for Convict, On Death Row, but Seeking New Trial,'' New York Times, April 22, 1997, at A10.
(Footnote 16 return)
See e.g., Michael J. Sniffen, AP Wire Story, April 16, 1997.
(Footnote 17 return)
28 U.S.C. 471 et seq., enacted as Title I of the Judicial Improvements Act of 1990, Pub.L. 101–650, 104 Stat. 5090–96 (1990).