EXECUTIVE SUMMARY

1) Whitehurst alleged that Thurman committed willful misconduct by changing Whitehurst's Laboratory reports. This, and a similar allegation regarding other examiners, ar ose because one of the supervisors in the Laboratory who has since retired did not strictly adhere to an unwritten policy that auxiliary examiner reports were to be included verbatim in final reports unless the person preparing the final report and the p erson who had prepared the auxiliary report agreed on the changes. We found numerous instances in which Whitehurst's reports were changed by Thurman. Some of those changes resulted in inaccur acies and unsubstantiated conclusions. Other modifications did not concern matters of substance but were stylistic changes.

2) Whitehurst also contended that EU examiner Wallace Higgins had significantly changed a number of Whitehurst's dictations without his authorization. We substantiated t hat charge. Both the Thurman and Higgins alterations underscore the need for Laboratory personnel to follow Laboratory policy to ensure that the reports of analytical work prepared by Laboratory scientists are not substantively altered unless agreement i s reached on the changes. Our views on the preparation of Laboratory reports are detailed in a later section stating general recommendations.

3) William Tobin, a metallurgist now working in the Materials Analysis Unit (MAU), brought several matters to the OIG's attention. These included cases in which he belie ved that other examiners (principally in the EU) had incorrectly conducted or reported metals-related examinations. He also contended that Michael Malone, who was formerly in the Hairs and Fibers Unit, testified inaccurately and outside his area of exper tise in a 1985 hearing by a judicial committee of the Judicial Council of the Eleventh Circuit relating to then-U.S. District Judge Alcee Hastings, who was subsequently impeached. With respect to the Hastings matter, we concluded that Malone falsely test ified that he had performed a tensile test and that he testified outside his area of expertise and inaccurately with respect to the test results. Tobin himself acknowledged that Malone's miss tatements did not affect the assessment they both shared that a particular purse strap had been cut. The judicial committee appeared not to place any significance on Malone's testimony with r espect to the purse, since there is no mention of it in the specific findings articulated by the committee to support its conclusion that Hastings had committed misconduct. Nonetheless, we found Malone's testimony inexcusable and criticized the Laboratory's failure properly to deal with Tobin's complaint about it.

4) Late in our investigation, Whitehurst wrote a letter to the OIG expressing concerns about testimony given by CTU Chief Roger Martz in Florida v. George Trepal, a case that resulted in the conviction and death sentence of T repal for having added the poison thallium nitrate to bottles of Coca-Cola. We found that Martz could have properly opined that certain samples were consistent with thallium nitrate having been added to them. Martz, however, did not limit his conclusions that way, but instead offered an opinion stronger than his analytical results would support. He also failed to conduct certain tests that were appropriate under the circumstances, failed to document adequately his work, and testified inaccurately on var ious points. Martz's work in this case was seriously deficient.

A recurring theme in Whitehurst's complaints and allegations to the OIG has been that the FBI retaliated against him for raising concerns about the FBI Laboratory to the FB I and others. Retaliation is a difficult issue to investigate, because it rests on the motivations of persons taking actions with respect to the complainant. Neutral explanations may sometimes mask an unstated intent to take harmful actions. Some of the allegations in lawsuits filed by Whitehurst against the FBI and the Department of Justice involve actions taken after the OIG launched this investigation. We did not attempt to assess whether recent actions taken by the FBI -- such as placing Whitehurst on administrative leave with pay after the OIG draft report was issued -- constituted acts of retaliation. Rather, our focus was on retaliatory conduct Whitehurst alleged was directed at him before November 1995. With respect to all but one of Whitehurst 's contentions, we concluded that the evidence did not substantiate his allegations of retaliation because we discerned no retaliatory purpose behind the FBI's decisions that he questioned. As for the remaining contention, we were unable to complete our investigation due to Whitehurst's decision not to provide a relea se form that would have permitted key personnel to speak to us about medically sensitive information regarding Whitehurst.

Whitehurst claimed that he was retaliated against for accusing Terry Rudolph of misconduct in the Psinakis case. After he criticized Rudolph, Whitehurst was suspended without pay for seven days and placed on probation for six mo nths. We did not substantiate Whitehurst's claim. FBI management had reason to criticize Whitehurst's actions in the Psinakis case because he erred in making his concerns known only to the defense attorneys, without first discussing them with the prosecutor, case agent, or his supervisors. The evidence further showed that the FBI' s internal discipline unit imposed the suspension despite opposition from Laboratory managers, who recommended the least severe form of discipline possible for Whitehurst. The disparity in treatment between Whitehurst and Rudolph appe ared to reflect a failure by management adequately to appreciate the seriousness of Rudolph's conduct rather than an attempt to retaliate against Whitehurst.

Whitehurst also contended that FBI OPR ignored and covered up his allegations that personnel in the Criminal Investigative Division were unlawfully using computer software and that an agent assaulted Whitehurst's wife, who also works at the FBI. Although the evidence showed that the OPR investigation was not as thorough as it should have been, we did not substantiate charges of a coverup. Indeed, Mrs. Whitehurst herself to ld the OPR investigator that she did not suffer any retribution or continuing harm, although she did feel threatened by the agent at the time of the incident.

Whitehurst next maintained that FBI OPR improperly initiated an investigation into his disclosure of information to the Senate Judiciary Committee. FBI OPR investigated the disclosures, which were admitted by Whitehurst, because of con cerns that confidential FBI records had been disclosed to unauthorized persons. When the Judiciary Committee refused to disclose Whitehurst's letters on the ground of protecting confidentiali ty, FBI OPR closed its investigation and no administrative action was taken against Whitehurst. We found no retaliatory purpose in the actions taken by FBI OPR with respect to this allegation.

In addition, Whitehurst alleged that FBI OPR improperly disclosed derogatory information about him to prosecutors in the World Trade Center and O.J. Simpson cases. After reviewing the disclosures of materials made by the FBI in those cases and interviewing the relevant FBI and U.S. Attorney personnel, we concluded that the FBI did not improperly disclose derogatory information about Whitehurst in those cases, but rather attempted to provide appropriate material regarding witnes s credibility.

In May 1994, the FBI reassigned Whitehurst from the explosives residue program to be an analyst of paints and polymers. Whitehurst alleged that this reassignment was in retaliation for reporting misconduct in the Laboratory and especia lly in the Explosives Unit. The Chief of the Scientific Analysis Section, James Kearney, made the decision to transfer the explosives residue program from the Materials Analysis Unit (MAU) to the Chemistry-Toxicology Unit (CTU). He gave two reasons for t hat move. One was to more closely balance the responsibilities and staffing of the CTU and MAU after a reorganization. A second was to place the explosives residue analysis program under a single unit chief; before that time responsibilities had been div ided between the CTU and MAU. Although there was internal opposition to the transfer in responsibilities on the ground that CTU Chief Martz lacked the expertise to supervise the program, we found no evidence of a retaliatory purpose in the transfer of th e explosives residue program from the MAU to the CTU.

Similarly, Kearney explained that the reason he moved Whitehurst out of the explosives residue program was because of Whitehurst's poor working relationship with EU and oth er personnel. Whitehurst acknowledged tension between himself and the EU examiners. MAU Chief Corby also noted that transferring Whitehurst to the CTU with the explosives residue program would have been problematic because of friction between Whitehurst and Martz. Thus, substantial credible evidence showed that the decision to move Whitehurst out of the explosives residue program was not made for a retaliatory purpose.

We also investigated other information proffered by Whitehurst in support of his retaliation claim, but we did not find the anecdotes he supplied to be sufficient to support his claim that an atmosphere of retaliation existed in the La boratory.

Finally, Whitehurst alleged that in 1993, the FBI ordered him to undergo psychiatric evaluation and therapy in retaliation for his raising various complaints against the FBI Laboratory. We concluded that the Laboratory personnel did no t act with a retaliatory purpose in referring the matter to the FBI Health Care Program Unit (HCPU) and the FBI Employee Assistance Program (EAP). However, because Whitehurst did not provide the necessary medical release forms to allow us to interview ke y personnel with the HCPU, EAP, and Personnel Section, we could not reach any definite conclusions concerning the motives of any such personnel in referring Whitehurst to psychotherapy.

Because Whitehurst made allegations of misconduct against a large number of persons in a large number of cases, we detailed in a separate part of the Report our findings and conclusions about each person against whom allegations were m ade or when our findings led us to conclude that the conduct of a person merited critical comment. In some instances, we made recommendations that persons be transferred from the positions they held prior to completion of our draft report, they be given special supervision, and/or their Laboratory reports be reviewed because of concerns we identified in their work.

CTU Chief Roger Martz lacks the judgment and credibility to perform in a supervisory role within the Laboratory. If Martz continues to work as an examiner, we suggest that he be supervised by a scientist qualified to review his work su bstantively and that he be counseled on the appropriate manner for testifying about forensic work. We further recommended that another qualified examiner review any analytical work by Martz that is to be used as a basis for future testimony.

EU Chief J. Thomas Thurman deserves special censure for his inadequate supervisory review of Williams' report in the Oklahoma City bombing case. Because we concluded that a ll examiners in the EU, including the Chief, should have a scientific background, we recommended that he be reassigned outside the Laboratory when that restructuring occurs.

EU examiner David Williams should be reassigned outside the Laboratory. Although we did not find that Williams had perjured himself in the World Trade Center case, his work in that case and in the Oklahoma City investigation demonstrat e that he lacks the objectivity, judgment, and scientific knowledge that should be possessed by a Laboratory examiner.

EU examiner Wallace Higgins should be reassigned outside the FBI Laboratory when the restructuring of the EU occurs. In the interim, while Higgins remains in the EU, the SAS Chief should counsel Higgins on the proper preparation of rep orts and monitor his work. A qualified explosives examiner also should review any reports prepared by Higgins.

Richard Hahn no longer works in the Laboratory. If in the future he is called upon to testify about his work as an examiner, we recommended that he be specially counseled about the importance of not testifying on matters beyond his exp ertise and that his testimony should be reviewed by qualified examiners to ensure that it is appropriately limited.

Michael Malone no longer works in the Laboratory, having been transferred from the Hairs and Fibers Unit in 1994. We concluded that Malone testified falsely and outside his expertise in the Hastings matter. We recommended that the FBI assess what discipline is appropriate and monitor future expert testimony to assure that it is accurate and limited to matters within his knowledge and competence.

Robert Webb also has been transferred out of the Laboratory. We found that Webb's report in the VANPAC case stated conclusions more strongly than were justified by the resu lts of his examinations and the background data. We recommended that another qualified examiner review Webb's analytical work in the event it is to be used as the basis for future testimony.< /P>

J. Christopher Ronay was the EU Chief from 1987 through October 1994, when many of the problems raised by Whitehurst first surfaced. We found that he exhibited poor judgment as a manager in approving EU reports. Because he is retired, we did not recommend any action concerning Ronay.

Terry Rudolph is now retired from the FBI. Although we were told that he worked as a consultant for a period of time after his retirement, we recommended that he not be employed in any capacity by the FBI in the future. We further reco mmended that a notation referring the findings of this Report be placed in each of his case files.

With respect to managers in the FBI Laboratory, we found important instances of deficiencies and failures to handle situations in an expeditious, thorough, and effective manner. A significant example of that finding occurred at the ver y outset of Whitehurst's criticisms and the weak response of Laboratory management to AUSA Burch's letter to the Laboratory Dire ctor regarding deficiencies in Rudolph's performance in Psinakis in 1989. More recent examples involved significant problems in explosives-related cases. Management lapses included fai lures to supervise appropriately the drafting of Laboratory reports in the EU, to evaluate the competence of examiners, and to establish a climate in which meaningful peer reviews and the professional resolution of scientific disagreements were the norm. The Report singles out for criticism Charles Calfee, Kenneth Nimmich, James Kearney, and John Hicks, all of whom are now retired from the FBI. We did not, however, substantiate criticisms of Alan Robillard, who transferred out of the Laboratory in 1994.

Our investigation exonerated a number of persons against whom allegations of misconduct were made. Those persons included: Roger Asbury, Edward Bender, Louis J. Freeh, Donald Haldiman, Ronald Kelly, Lynn Lasswell, Richard Laycock, Thom as Mohnal, Bruce McCord, Mark Olson, and Howard Shapiro. Furthermore, we did not substantiate Whitehurst's allegations against Alan Jordan, and although we did not substantiate allegations ag ainst Robert Heckman in the Borsellino matter, we did find reason to criticize Heckman for his work in the Conlon case.

Finally, the Report discusses Frederic Whitehurst, the complex person whose expression of concern about problems in the Laboratory sparked this investigation. He is an experienced scientist who identified significant problems in certai n cases and in certain practices within the Laboratory. He also accused many of his colleagues of perjury, fabrication of evidence, and conspiracy. Those allegations were not supported by the facts uncovered in the investigation. Any decisions about Whit ehurst must involve a careful weighing of the substantial contribution he made in bringing to light issues in the Laboratory that needed to be addressed against the considerable harm he has caused to the reputations of innocent persons and the fact that his frequently overstated and incendiary way of criticizing Laboratory personnel will make it extremely difficult if not impossible for him to work effectively within the Laboratory. Our own view is that Whitehurst lacks the judgment and common sense nec essary for a forensic examiner, notwithstanding his own stated commitment to objective and valid scientific analysis.

VII. Summary of Recommendations Regarding Laboratory Policies and Practices (Parts Six and Seven)

Although we made recommendations with respect to individuals, we perceived our principal mission to be to make systemic recommendations on Laboratory practices and procedures, the full implementation of which would help the FBI Laborat ory avoid in the future the problems we encountered in the matters we investigated. The recommendations as to individuals are, however, a necessary concomitant to achieving the type of organizational and cultural changes that should be undertaken by the FBI. The FBI has recognized in the immediate past that some aspects of its policies and procedures demand change, and upper management has taken steps to put new policies into effect. It is not clear from those policy changes that Laboratory top manageme nt has acknowledged that appropriate assessments of personnel are also required. Steps must be taken to provide personnel with the appropriate training, background, and commitment to quality that is required in a first-class forensic laboratory.

In its response to our draft report, the FBI concurred with nearly all of the OIG's systemic recommendations, even though it frequently disagreed with how we applied those general principles in assessing individual performances. Our emphasis in the previous section on individuals, therefore, should also be read in light of the importance

of investing personnel in the Laboratory with the appropriate skills and motivations to change old practices, as well as of underscoring the need for personal accountability as those changes are made. Thus, although virtually all of th e following general recommendations are recognized within the FBI as appropriate and have been accepted as valid, the best proof of acceptance will not be in the articulation of new practices, but in their complete implementation in the coming years.

Our first recommendation was one already accepted by the FBI -- that the Laboratory should pursue accreditation by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB). In 1994, Director Freeh a nnounced that the Laboratory would pursue accreditation at the earliest possible time, and the FBI's response to the OIG draft report acknowledged that the Laboratory could and should have sought ASCLD/LAB accreditation a decade ago. We commend the FBI for now making such accreditation a top priority for the Laborato ry. The criteria imposed in the accreditation process should promote valuable and productive interchanges with other laboratories to change some of the insular and parochial views we encountered in the EU, CTU, and MAU, as well as to assist the Laborator y in modernizing policies and practices. Accreditation is not a panacea, nor is the absence of accreditation an indictment of all tests performed in the Laboratory. But the process of undergoing accreditation should enhance quality performance.

Second, we recommended that the Explosives Unit be restructured and its mission clarified. One existing problem in the EU is that its personnel are not forensic scientists. We recommended (and the FBI agreed) that examiners in the EU h ave scientific background in pertinent disciplines such as chemistry, metallurgy, or engineering, as well as technical training in the assembly, deactivation, and use of explosive devices. Although EU examiners should be available to consult at crime sce nes, primary responsibility for conducting investigations and directing crime scene management functions should rest with components of the FBI outside the Scientific Analysis Section. (The recommendation concerning the proper role of EU examiners at the crime scene was the only recommendation discussed in this Section with which the FBI disagreed.)

Third, the Laboratory should abolish its current distinction between principal and auxiliary examiners, in which the auxiliary examiners' reports are combined into

a single report by a principal examiner. In cases in which more than one examiner is called upon to evaluate evidence, we suggested that a coordinating examiner assume the role of ensuring that the correct units of the Laboratory have been enlisted to work on the case and that the reports generated by those units are accurately included in the final set of rep orts. Although we were told that an unwritten policy (prior to a formal written directive in September 1994) had long been that auxiliary examiner reports were incorporated verbatim, we found numerous instances in which that policy was not followed.

Fourth, we recommended that, instead of one report emanating from the Laboratory with analytical results reflected in the body of that report without attribution to individual examiners, each examiner who performs work should prepare a nd sign a separate report, even if such individual reports are ultimately collected together as the unified report of the Laboratory as a whole.

Fifth, analytical reports should also be substantively reviewed by the unit chief or another examiner (if the unit chief lacks the requisite expertise or has performed the analysis) before they are released in final reports. Forensic s cience is sufficiently complex that such substantive review need not always follow hierarchical lines within the Laboratory management structure. A junior examiner who is qualified in the area should be capable of substantively reviewing a unit chief's analysis. Our central point is that peer review by qualified personnel is an essential aspect of a high-performing forensic science laboratory. The Rudolph matter, certain conclusions in the O klahoma City report, and other cases demonstrate the importance of vigorous, substantive peer review.

Sixth, reports must be supported by adequate case files. The Rudolph files and some of Martz's work underscore the importance of case files containing all of the documentat ion necessary for another appropriately qualified examiner to be able to understand and replicate the examiner's data and analysis. We encountered the problem of incomplete or missing documen tation in many case files. Accreditation will require the Laboratory to maintain a rigorous system of case filing, which has not existed in the past.

Seventh, not only must the files contain all relevant documentation of results, but the records themselves must be maintained so as to facilitate ready retrieval. We suggested that the Laboratory keep its own files rather than integrat ing Laboratory files with the Bureau's general case filing system.

Eighth, we recommended that the Scientific Analysis Section of the Laboratory Division develop and implement a coordinated training program for examiners. Training has been conducted at the unit level, and has developed in an ad hoc ma nner. As suggested in the ASCLD/LAB accreditation process, a unified curriculum for common issues and moot courts for testimony would be helpful. At the unit level, managers should clearly articulate training criteria and document completion of curricula .

Ninth, the FBI should develop a uniform program for training examiners with respect to court testimony and monitoring such testimony. We found the problem of examiners testifying to matters beyond their expertise or in ways that were u nprofessional in Hahn's testimony in the Avianca case, Williams' testimony in the World Trade Center case, and Martz' testimony in Trepal and Simpson.

Our tenth and eleventh recommendations addressed the development of written protocols generally for the scientific procedures utilized. For the analysis performed in the FBI Laboratory to have wide-ranging credibility in courts and in the forensic science community, examiners must strictly adhere to established protocols for the analysis of evidence or document the reasons for departing from them. The same is true for the handling of evidence and the adoption of measures to prevent an d detect contamination.

Finally, the role of management is critical to achieving the types of reforms needed in the Laboratory. As we have noted, before and during our investigation Laboratory managers have begun the process of implementing many of the recomm endations we noted above, as the process of preparing for accreditation continues. Those reforms must be substantive and should be structured to address the fundamental issues raised in our Report.

The FBI's cooperation with the OIG investigation and acceptance of our systemic recommendations should be lauded. The process of managing necessary changes will be challeng ing in an environment in which scientific knowledge is expanding and forensic science is increasingly under scrutiny. We welcome the FBI's suggestion of our continued involvement in oversight to assist in ensuring that needed reforms are fully implemented. We will seek to perform that function in a manner consistent with the Laboratory's expeditious efforts to obtain ASCLD/LAB ac creditation and its ongoing development of first-class examiners and standards. Although we have rejected the most inflammatory allegations made by Whitehurst, the FBI Laboratory must fully acknowledge past problems that have been identified as it contin ues its pursuit of excellence in forensic science.

USDOJ/OIG Special Report

EXECUTIVE SUMMARY