The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“UPSIDE-DOWN MANAGEMENT IN THE CRIME LAB” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S2607-S2610 on March 20, 1997.
The publication is reproduced in full below:
UPSIDE-DOWN MANAGEMENT IN THE CRIME LAB
Mr. GRASSLEY. Mr. President, this is the fifth time I have taken the floor to make observations about the FBI's upside-down management of its crime lab.
In my view, the FBI's Director, Louis Freeh, continues to mislead the public about the lab. He would have us think that the FBI lab has met the highest standards. He has maintained that the allegations of the lab's whistleblower, Dr. Frederic Whitehurst, are all wrong. He has said that no other scientist in the lab has come forward with similar accusations. His testimony before Congress recently was totally consistent with that image.
But documents belie the Director's rosy portrayal of the lab., and of his dark portrayal of Dr. Whitehurst.
Thus far, I have released documents showing there is credibility to some of Dr. Whitehurst's allegations. I have pointed to press accounts in which the public has learned the IG's still-secret report uncovers problems in three specific cases. thus backing up Dr. Whitehurst with specifics. I released documents showing that Director Freeh was aware of the exact same allegations, investigated them, yet covered them up. I revealed that there was a second scientist who came forward with serious allegations that paralleled those of Dr. Whitehurst.
I do not know what it will take for Mr. Freeh to admit these things, Mr. President. Perhaps the public needs to see more of the FBI`s documents that underscore my points. That's fine by me. Because documents don't mislead. They do not have a motive to. But, people do. And when leaders of the people mislead, there's a breakdown in confidence and trust.
And so, I am here today, Mr. President, to test the boundaries of Mr. Freeh's denials. Today, I am releasing yet more FBI documents, obtained through the Freedom of Information Act. These documents contradict Mr. Freeh's own assertions. The American people have a right to know this.
Today, I will reveal a third scientist in the FBI lab, who substantiated some of Dr. Whitehurst's more serious allegations. He substantiated them just months after the FBI Director and his team of lawyers whitewashed them. This third scientist, in fact, was Whitehurst's unit chief in the lab.
Here are the facts. In December 1992, Dr. Whitehurst made the serious allegations that his lab reports were being altered by other agents who lacked authority to do so. Altered reports could constitute tampering with evidence and obstruction of justice, and could therefore be criminal.
The universe of cases being looked at was 48 cases. Not all of them were altered. But all had to be checked. Some appeared to contain substantial changes. The Whitehurst memo of allegations went to the Assistant Director of the FBI for the Laboratory Division.
In May 1994, a review of the Whitehurst allegations--much more extensive than just the altered reports issue, but including them--was done by Mr. Freeh's lawyers, rather than by an independent body with some scientific background. Ironically, it was the IG's investigation that supplied the needed independence and a scientific approach, and only then did these problems get aired.
But, the FBI's review was headed by Mr. Freeh's general counsel, Howard Shapiro. He's the Director's top lawyer, himself a controversial figure with Congress. Mr. Shapiro felt there was no need to have an independent review because, as he said, the FBI has a long, proud history of doing its own reviews. Upon completion, the review was eventually read and signed-off-on by Director Freeh.
So, here is what the FBI's own review found. First, there were no major problems in the lab. Everything was hunky dory. On the specific issue of altered lab reports, here is what Mr. Shapiro found.
[Laboratory Division] management made it clear that this will not be tolerated and has instructed the Unit Chief's
(sic) to reiterate this policy.
How about that for a finding for this crack review team, Mr. President. They're investigating serious, possibly criminal activities. Instead of finding out whether it happened, Mr. Shapiro merely said it's not supposed to happen. His recommendation? If there were alterations, just correct the written report.
You see, Mr. President, under the long-standing Brady decision, the government is required to provide the accused with any information that might point to their innocence. Material alterations of lab analysis might fit into that category. If changes had been discovered in some reports, the proper thing to do was to judge the impact of any alterations on each court case. Instead, Mr. Shapiro thought justice would be served by simply correcting the paperwork. Cases closed.
By October 1994--about 5 months after Mr. Shapiro's review was issued--the IG got hold of the same allegations. The IG began its own review of the 48 cases.
Meanwhile, in September 1994, the FBI lab managers discovered another agent making the same allegations of altered reports as Dr. Whitehurst was making. The allegations by then were being investigated thoroughly by lab personnel.
By January 1995, the lab's investigation was completed. An FBI unit chief, whose name I will not divulge, wrote a memo of investigation to his section chief. In it, he stated that 13 of Whitehurst's 48 cases had significant alterations. He recommended the following:
That [Supervisory Special Agent] (blank) be held accountable for the unauthorized changes he made in the
[Auxilliary Examiner] dictation of SSA Whitehurst by administrative action to include both oral reprimand and a letter of censure.
The unit chief concluded his memo this way: ``(Blank) committed errors which were clearly intentional. He acted irresponsibly; he should be held accountable; he should be disciplined accordingly.''
The scientist-unit chief writing the memo, and who backed up Dr. Whitehurst's allegations, identified the culprit. I won't reveal who either one is. But the memo is significant. It reveals yet another scientist--a unit chief, no less--who substantiated Whitehurst's allegations. It is another apparent example of an FBI lab agent shaving the evidence to get a conviction.
What was covered over by Mr. Shapiro's team of crack lawyers less than 1 year before, was now popping up. The lab's management was finding the opposite of what Shapiro and his lawyers found. That meant there were conflicting findings. And that is serious. The lab unit chief's report was at odds with Director Freeh's. What was senior management--those above the lab managers--to do?
The answer was not long in coming. During this time frame, FBI management indeed found a suitable discipline for this rogue agent. Mr. President, they promoted him. They made him a unit chief. The agent found to have intentionally altered evidence was promoted. That tells us how senior management resolved the dilemma. They promoted the rogue, and shot the messenger.
That set the stage for the coverup. Because just 10 months later, when the Whitehurst allegations became public, Mr. Freeh issued the following statement in response. This was on November 8, 1995. He said:
The FBI has vigorously investigated his (Whitehurst's) concerns and is continuing to do so. The FBI alone has reviewed more than 250 cases involving work previously done by the Laboratory. To date, the FBI has found no evidence tampering, evidence fabrication, or failure to report exculpatory evidence. Any finding of such misconduct will result in tough and swift action by the FBI.
Is that what happened to the rogue agent, Mr. President? Yes. The FBI took swift action to get him promoted.
The fact is, the statement by Mr. Freeh on November 8, 1995, was utterly false. Lab reports are evidence. If altered substantially--and 13 reports were--that is evidence of possible evidence tampering, and more.
Ultimately, the IG caught up with the rogue agent. The FBI did not. But the IG did. When the IG report finally reached the Bureau, this rogue agent became one of the three who were transferred from the lab. Yet no other action has been taken against him by the FBI. I aim to find out why not.
Mr. President, what is clear about all this is, the FBI is buried under a mountain of evidence showing it cannot police itself. It took the inspector general's investigation to finally root out what the FBI had covered up. Some good people in the FBI tried to do the right thing. But senior management got in the way. Senior management apparently places a higher value on maintaining image, rather than rooting out wrong.
Therefore, the time may have come for independent review of the FBI. Someone needs to police the police. They cannot police themselves. That is for sure. Perhaps the way to go is to beef up the independent IG, instead of the FBI's Office of Professional Responsibility, as the Director has proposed.
Growing up on the family farm in Iowa, my father taught us to revere and respect the FBI. They were the champions of right versus wrong in our society. We looked up to them, whether justified or not.
I still have that same respect for the FBI. There are literally thousands of good, decent men and women serving their country as FBI employees.
But those honest, hardworking agents need and deserve leadership that has integrity and credibility. They need leaders who will go after bad guys, and protect good guys. Not the other way around. They need leaders who reward honesty and punish wrongdoing--not the other way around, as we see in this case.
The issue of bad management in the crime lab is serious. Bad scientific analysis used in court means good guys can go to prison, and bad guys can walk. That's not what we want. That is un-American. That's what they have in dictatorships. There is no room for that in a democracy.
Mr. President, I have talked to my colleagues about the culture at the FBI under the present management. It seems to reward those who rush to a conviction. It seems to punish those who, in the FBI's eyes,
``commit truth.''
There is no better image to show this than how they treated the rogue agent--they promoted him--and how they treated Dr. Whitehurst--they went after him.
Mr. President, I do not have to say anything else. That says it all.
Mr. President, I ask unanimous consent to have relevant documents to which I referred, plus others that will help provide additional context, printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
From SSA Frederic WhitehurstTo Asst Director John Hicks
Re alteration of laboratory report of SSA Whitehurst.
Purpose: to document the alterations of auxiliary examiner
* * * laboratory reports of SSA Whitehurst * * *
Recommendation: That any alteration of AE dictation of SSA Whitehurst be done with the full concurrence of SSA Whitehurst and the Unit Chief of the Materials Analysis Unit.
Details: On 11/27/92 * * * of the Materials Analysis Unit advised SSA Whitehurst, * * * that * * * had been told by * *
* that he was changing the auxiliary examiner dictation of SSA Whitehurst before publishing reports from the Laboratory. This information was the first that SSA Whitehurst has had concerning the changing of his dictation in the five and one half years that SSA Whitehurst has been a examiner in the Laboratory. At no time has SSA * * * consulted SSA Whitehurst concerning these changes.
As a result of receiving this information, SSA Whitehurst reviewed his files to determine the cases that SSA Whitehurst as worked as an auxiliary examiner since 1987 * * * which these alterations have been taking place and the possible effect of the alterations on the reported expert opinion of SSA Whitehurst.
During the period from 1987 to present SSA Whitehurst has written forty eight auxiliary examiner reports * * *. Of those reports SSA Whitehurst was able to retrieve sixteen files from records. The other files were listed as checked out and their location was not pursued. Review of the files indicates that * * * has often paraphrased or totally altered the reports. Of the sixteen files reviewed, the Laboratory reports were placed into four groups: 1.) Those where no change was made to the auxiliary examiner report. 2.) Those where paraphrasing of the report was such that the meaning was the same but the words different. 3.) Those where paraphrasing could cause possible problems in court. 4.) Those where paraphrasing changed the meaning or significantly altered the content of the report. In group one there were three reports (70921005, 91121007, and 90615067). In group two there were five reports (71116047, 71221007, 70921006, 91121008, and 71116048). In group three there were three reports (80217150, 71125046 and 91207016). In group four there were five reports (71124001, 90823043, 70920045, 90623042, and 91130017). Copies of the AE report and the final Laboratory report from each matter are included in the attached package.
This communication has been submitted to bring attention to possible problems during testimony if AE dictation is arbitrarily changed in the manner described. For example, in Laboratory matter 90823043 the AE dictation is as follows:
``Chemical and physical analyses of specimen Q4 have identified the presence of Pyrodex low explosive.
The results of chemical analyses of specimen Q6 are consistent with the presence of residues of Pyrodex low explosive.
It is the opinion of this examiner that the residues in Q6 originated from a low explosive mixture which contained Pyrodex.
Pyrodex is a commercial low explosive produced by Hodgdon Powder Co.''
On the other hand the final report dictation reads,
``Present in specimen Q6 are explosive residues which chemical analysis show to have originated from a low explosive mixture which contained Pyrodex. Pyrodex is a commercial low explosive produced by Hodgdon Powder Co. . . .
Present in specimen Q4 is a quantity of black-colored powder which has been identified as Pyrodex low explosive.''
Though the wording in the first paragraph is a paraphrase of the contents of the AE dictation, the contents of the second paragraph do not say at all what was said in the AE dictation. There is a big difference between determining that Pyrodex is present and saying that the powder is Pyrodex. In this particular matter there happened to be other materials present in the powder. If faced on the stand with that argument the examiner would have to admit that the dictation was wrong. Opinions presented in the AE reports from the Materials Analysis Unit have been thought out very carefully and reviewed by the Unit Chief very carefully.
In FBI Laboratory matter 70920045 the AE dictation reads:
``Specimen Q4 has the chemical and physical characteristics of C-4 explosive. Semi-quantitative analysis determined that Q4 is composed of 2.5% polyisobutylene, 7.0% Di-(2-ethylhexyl) adipate plasticizer and oil and 91.5% high explosive RDX containing a small amount of HMX high explosive. C-4 is a military plastic explosive.
White powder found in specimen Q6 has the physical and chemical characteristics of pentaerythritol tetranitrate
(PETN), a high explosive commonly found in detonating cord.''
The final Laboratory report reads:
`` . . . Present in specimen Q4 is a white putty-type material which has been identified as United States Military explosive type M112 commonly referred to as `C-4.' . . .
Present in specimen Q6 are two (2) lengths of detonating cord which are yellow in color with three black tracer threads that contain the high explosive PETN.''
In this particular matter no mention is made of the analysis conducted on specimens Q4 or Q6 nor could the Laboratory notes or AE report be found in the file.
In order to determine if the practice of altering the AE dictation of SSA Whitehurst's explosives analysis results is endemic to the Explosives Unit the reports of three other examiners who are now or have been in the Explosives Unit were reviewed. That review included reports from SSA * * *, SSA * * * and SSA * * *. In not one of their reports were the AE dictation reports of SSA Whitehurst changed even to paraphrase the reports. SSA * * * practice of altering AE reports appears to be an isolated situation.
____
October 7, 1994.Re allegations regarding changes in FBI laboratory reports by
Frederick Whitehurst.
David R. Glendinning,Office of Inspector General, Department of Justice,
Washington, DC.
Dear Mr. Glendinning: As you will recall, several months ago you contacted me regarding numerous allegations your office had received against the FBI Laboratory Division (LD) from Supervisory Special Agent Frederick Whitehurst who is an explosive residue examiner in the LD. You explained that Whitehurst had made numerous allegations regarding problems in the FBI LD, but that only one, involving the changing of auxiliary examination dictation, warranted further investigation by your office. I told you that the FBI's Office of the General Counsel (OGC) had also received the same allegations from Whitehurst and was already conducting an investigation. As you know, our preliminary investigation is complete, and the report dated May 24, 1994, was made available to your office.
As you will recall, the allegation you were interested in investigating involved Whitehurst's claim that in some cases, Principal Examiners (PE) from the Explosives Unit had changed his Auxiliary Examiner (AE) dictation without his approval or knowledge. OGC contacted the LD management regarding this allegation who advised that the LD had a longstanding policy prohibiting any changes in AE dictation by the PE without the express permission of the AE. The LD immediately reaffirmed this policy with all its examiners. The May report made the following recommendation regarding Whitehurst's allegations on this matter:
Recommendation: We feel that LD management has appropriately addressed this issue. However, we are making the following recommendations to correct any past unapproved AE dictation changes and ensure that the AE has a chance to review final reports:
1. Examine all past reports where SSA Whitehurst and * * *
(the other explosive residues examiner) were the AE's, and compare with the language of the final reports to ensure there were no changes. If changes were made, appropriate action should be taken to correct any substantive errors that were contained in the final report(s).
2. Require a copy of the final report be distributed to the AE examiners at the same time the final report is mailed to the contributor.
The FBI adopted the recommendations from the report which are currently being implemented by the LD. The deadline for the review conducted pursuant to recommendation number one is October 15, 1994, and I will forward a copy of the report to your office as soon as it becomes available.
The LD examiner who is reviewing the Whitehurst and * * * PE/AE reports advised that he believes there are still one or two reports that have not yet been retrieved. Once a final accounting of every report is completed, I will send you a copy of any remaining reports not enclosed with this letter. The only redactions in the enclosed reports are the case names and other personal identifying data.
The following is a list of the enclosed reports which are identified by the FBI LD number:1. 005300462. 707240753. 709210054. 709210065. 709280456. 710190297. 711160478. 711160489. 7112504610. 7122400111. 7122807812. 8012100713. 8021715014. 8080301815. 8080301916. 8110802917. 8122300418. 9040303219. 9050906320. 9061506721. 9062304222. 9062605523. 9080807424. 9082304325. 9112100726. 9112100827. 9113001728. 9120407929. 9120701630. 2012401131. 2020702332. 2041604333. 2061803934. 2062400935. 2072902636. 2081203237. 2111801338. 2112302439. 2121407040. 2122109341. 2122109442. 3042201243. 3061105444. 3070803145. 3080204546. 3081204347. 3081603248. 31001027
Please do not hesitate to contact me if you need any further information or additional assistance. I can be reached at * * *.
Sincerely yours,
------ ------,Associate General Counsel.
____
To: Mr. AhlerichFrom: J. J. Kearney
Re alternations and changes in AE reports by PE examiners without approval of AE examiner scientific analysis section [SAS] Laboratory Division [LD].
Reference Mr. H. M. Shapiro memorandum to Mr. Hicks, dated 6/8/94 and Messrs * * * and * * * memorandum to Mr. Shapiro, dated 5/25/94.
Purpose: To Advise you of the actions being taken to resolve the captioned issue.
Recommendation: None, for information only.
Details: As described in the * * * and * * * memorandum to Mr. Shapiro, SSA Frederic Whitehurst, Materials Analysis Unit, SAS, has alleged that in some instances Principal Examiners (PE) from the Explosives Unit have changed his Auxiliary Examiner (AE) dictation without his approval. Following some review it appears that the practice is isolated to one * * * .
In addition, prior to issuance of the referenced memoranda. I was approached by * * * a second * * * who rendered a similar complaint concerning the work of * * * I met with * *
*. Explosives Unit in an attempt to resolve the issue. During the meetings, it was apparent there was a deeper unresolved issue which existed between the examiners of the two units. The issue centered around what each unit believed their individual roles were when reporting the examinations of evidence in bombing matters. It was the position of the Explosives Unit that examiners in the Materials Analysis Unit should limit their reporting to the chemical analysis of the explosive residues and not discuss the nature of explosive materials. On the Other hand, the Materials Analysis Unit's position was that the Explosives Unit periodically went too far in their interpretation of the residue data when they formulated their conclusions and summary statements in their reports.
In these meetings, the practice that a PE not change an AE's dictation without first discussing the matter with, and getting the AE's approval was reemphasized with each of the Unit Chiefs and the Examiners. It was agreed that the two units would follow the practice. In addition, in order to ensure that the AE examiner is kept informed as to what is being reported on regarding his work, it was reemphasized that a tickler copy of the final report would be provided to the AE examiner for his review and records.
Further, I recommended that when bombing cases go to trial, we send both the explosive expert and explosive residue expert to testify to their results. This policy is in keeping with how testimony is handled in other cases in the Laboratory having both AE and PE testimony and would prevent any further confusion or possible misrepresentation of the AE dictation in bombing cases.
In order to resolve the issue * * * I have asked * * * to review * * *. Some of the cases have already been reviewed by
* * *. The remainder of the cases will be reviewed by * * * and all cases will be placed into two categories:
Category One will include all those cases where no alteration occurred or if an alteration occurred, it did not change the meaning of the dictation.
Category Two will include all those cases where an alteration of the dictation occurred which caused a change in the meaning of the dictation and may have resulted in a misrepresentation of the data.
It is anticipated that the remainder of the review will be completed by October 15, 1994. A summary report of * * * findings will be prepared. At that time, it will be determined * * *.
I have enclosed * * * copy of this memorandum * * * so that the review of this matter will be comprehensive and efficient.
____
January 13, 1995.To: Mr. KearneyFrom: * * *
Re alterations and Changes in auxiliary examiner (AE) reports by principal examiner (PE) without approval of AE examiner; Scientific Analysis Section (SAS) Laboratory
Division (LD).
Reference J.J. Kearney's directive on 1/4/95, to document recommendations resulting from a review of captioned matter.
Purpose: To make recommendations regarding the documented alterations of auxiliary examiner dictation from the Materials Analysis Unit (MAU) by SSA Explosives Unit (EU).
Recommendations: 1. That SSA * * * be held accountable for the unauthorized changes he made in the AE dictation of SSA WHITEHURST by administrative action to include both oral reprimand and a letter of censure.
2. That the Assistant Director in Charge of the Laboratory Division mandate that all PEs provide a copy of all outgoing reports that include AE dictation to the respective AEs to avoid the possibility of mistakes/errors being furnished to a contributor as a result of misuse or misinterpretation of the AE dictation by the PE.
3. That the issue as to whether or not revised reports should be prepared and furnished to the contributors in the thirteen (13) cases where I have concluded significant alterations were done SSA * * * be referred to General Counsel for resolution.
4. That Laboratory policy be re-emphasized to insure that PEs never be allowed to testify to the results/meaning of AE dictation furnished to them that clearly falls outside their expertise.
Details: Based upon a memorandum to each Laboratory Unit Chief from J.W. HICKS dated 5/24/91, the approved, current Laboratory policy for errors made by a person in the Laboratory is clearly documented. This memorandum lists four types of errors. The alteration of another examiner's dictation without consultation with that examiner or his/her Unit Chief would fit, in my opinion, the criteria of the most serious type of error defined by the ``willful or grossly negligent error.''
It has always been understood practice (perhaps not written policy) that PEs do not change/alter/reword/revise AE dictation without consulting with and receiving permission from the AE, or their respective Unit chief in combination with the AE.
The problems that could arise during testimony when AE dictation is arbitrarily changed cannot be over-emphasized. The wording in all MAU dictation is carefully thought out, discussed, peer reviewed often times, and results from correct interpretations of the data. Any dictation signed out by the MAU Unit Chief or his designee should not be changed in any manner without the proper notification and consent of the AE.
In my opinion, SSA * * * chose to ignore this longstanding practice, a practice that everyone else adheres to.
It is clear that SSA * * * does not understand the scientific issues involved with the interpretation and significance of explosives and explosives residue composition. He therefore should realize this deficiency and differentiate between his personal opinions and scientific fact. An expert's opinion should be based upon objective, scientific findings and be separated from personal predilections and biases.
In order to identify a given material, it is necessary for the examiner to acquire sufficient data using acceptable scientific techniques/protocols and instrumentation to specifically identify it. If that level of data is not acquired or does not exist, then complete identification is not possible and words such as ``consistent with'' or
``similar to'' are used. This is nothing new. It is taught in our colleges and universities. It is a standard set by MAU based on experience/background, education, discussions, research and peer review of the analytical procedures in place. By rewording AE dictation, SSA * * * places an examiner in the position where he/she would be required to advise the court that the report overstates the findings and therefore is incorrect.
A FBI Laboratory report is evidence. Often times the report itself is entered into evidence during the trial proceedings. The fact that SSA * * * did make unauthorized changes in these reports could have resulted in serious consequences during legal proceedings and embarrassment to the Laboratory as well as the entire FBI.
In conclusion, SSA * * * committed errors which were clearly intentional. He acted irresponsibly; he should be held accountable; he should be disciplined accordingly. The problems regarding AE alterations by SSA * * * are verified. All of the AE dictation furnished to SSA * * * by SSA WHITEHURST has been reviewed. The causes, reasons and events which led to the occurrence of the errors has been discussed. The appropriate administrative action, in my opinion, should be that SSA * * * be given a letter of censure.
____
Department of Justice,
Federal Bureau of Investigation,
Washington, DC, November 8, 1995.
FBI Director Louis J. Freeh today released the following statement:
The FBI looks forward to working with the Blue Ribbon Panel named today. The FBI will assist the panel in every manner possible to ensure an objective review of our examinations and policies.
Over the past several years, Special Agent Frederic J. Whitehurst has raised a variety of concerns about forensic protocols and procedures employed in the FBI Laboratory. The FBI has vigorously investigated his concerns and is continuing to do so. The FBI alone has reviewed more than 250 cases involving work previously done by the Laboratory. To date, the FBI has found no evidence tampering, evidence fabrication or failure to report exculpatory evidence. Any finding of such misconduct will result in tough and swift action by the FBI.
The FBI Laboratory conducts over one million examinations per year and our experts testify hundreds of times annually in state and federal courts of law. At trials, FBI Laboratory examinations are constantly subject to extraordinarily vigorous challenge through cross-examination and the presentation of expert testimony by defense witnesses.
The PRESIDING OFFICER (Mr. Brownback). The Senator from Virginia.
Mr. ROBB. Thank you, Mr. President.
____________________
