The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April,1997) Office of the Inspector General, Department of Justice

SECTION H2: NORFOLK TANK FARMS

In 1991, Whitehurst analyzed flash powders from two pipe bombs found in fuel storage tanks at a marine terminal in Norfolk, Virginia. He concluded that they could have come from the same source. He alleges that EU examiner Richard Hahn improperly pressured or bullied him to state his conclusions more strongly. According to Whitehurst, Hahn threatened to have him replaced with a bright high school kid when Whitehurst refused to change his auxiliary examiner dictation. Whitehurst asserts that Hahn's actions were subornation of perjury.

To investigate Whitehurst's allegations, we interviewed Whitehurst, Hahn, and James Corby, and we reviewed the Laboratory reports, auxiliary examiner dictation, and other documents from the case file. We also asked other examiners if they knew about this matter or of any instances where examiners were pressured to change their conclusions.

We find no basis to conclude that Hahn suborned perjury or improperly pressured Whitehurst to change his conclusions. Hahn's report set forth Whitehurst's conclusions in the exact language drafted by Whitehurst. More generally, while some in the Laboratory believed that examiners from the EU pressured others to reach certain conclusions, no one identified an instance in which the reported results were changed because one examiner improperly pressured or influenced another.

The case does illustrate that Laboratory examiners should understand that disagreements about methodology or the interpretation of data must be resolved professionally based on pertinent scientific knowledge. As noted in the recommendations that appear in Part Six of this Report, if the examiners involved cannot resolve such disputes among themselves, then the unit chief or chiefs with sufficient expertise should address the issue, with further resolution by the section chief if necessary. Whatever resolution is reached should be clearly communicated to the examiners involved.

On February 4, 1991, two unexploded pipe bombs were found on fuel storage tanks at the Allied Marine Terminals in Norfolk, Virginia. The attempted bombing was later determined to be part of an insurance fraud scheme. During the investigation, the pipe bombs were disarmed and later delivered to the FBI Laboratory for examination. Richard Hahn worked on the case as the principal examiner, and Whitehurst analyzed evidence for explosives residue as an auxiliary examiner.

After examining certain evidence, Whitehurst prepared auxiliary examiner dictation stating:

Whitehurst contends that Hahn pressured him to change the word could to make it stronger. Whitehurst acknowledges that the final report accurately reflected the language Whitehurst used to state his conclusions. Whitehurst further asserts that Hahn improperly threatened to replace him with a bright high school kid and suborned perjury in urging Whitehurst to strengthen his conclusions. We discuss these allegations further below.

Our investigation did not corroborate Whitehurst's allegations about this matter. Whitehurst recalls that Hahn told him that the conclusion that flash powders could have come from the same source should be stated more strongly because the defense might make some trouble with, or otherwise be assisted by, Whitehurst's language. Whitehurst says that he lost his temper, that both examiners began shouting, that Hahn made the remark about a bright high school student, and that MAU Chief James Corby had to break up the argument between Hahn and Whitehurst.

Hahn gives a different account. According to Hahn, he had no dispute with Whitehurst in the Norfolk case and denies ever threatening Whitehurst. Hahn acknowledges making a remark about a bright high school kid to Whitehurst, but says it was in a different case and in a different context than described by Whitehurst. By Hahn's account, he had talked with Whitehurst about analyses for a 1989 attempted bombing of a dormitory at the University of Arkansas. Hahn says Whitehurst stated, All you're going to get out of me is what I get out of those instruments, and that Hahn in turn responded, if that's all you're going to do for this laboratory, we could get some good high school chemistry students to do that. Hahn says that Whitehurst stood up from his desk and started screaming, shaking his finger, and calling Hahn names. Hahn recalled that Whitehurst's unit chief came running in to see what had happened.

James Corby confirmed in an interview with us that he had once broken up a disagreement between Hahn and Whitehurst, but Corby was not sure if it concerned the Norfolk case. He said that he heard yelling and screaming and found Hahn and Whitehurst in an argument that was disrupting the entire unit. Corby further said that he thought the argument concerned the strength of Whitehurst's conclusions. According to Corby, Hahn was doing most of the shouting and was trying to intimidate Whitehurst without success. Corby said that examiners generally resolved between themselves any disputes over dictation, but he intervened in this instance because the shouting match was inappropriate.

Corby observed that EU examiners had tried to pressure other examiners, but did not identify any instance where this had changed the reported results. Corby said that after Steven Burmeister was qualified to examine explosives residue, members of the EU tried to get Burmeister to change his wording, but that Burmeister would not do so. Burmeister denies being pressured in this way and recalls his interactions with the EU as open discussions. Metallurgist William Tobin told the OIG during his first interview that the EU constantly pressured scientists in other units, including himself, to produce conclusions that were consistent with EU theories. Tobin later indicated, however, that he had been pressured to come to some conclusion, rather than to reach a particular result.

Given the conflicting statements by the witnesses, we cannot precisely determine what occurred almost five years ago in the dispute between Whitehurst and Hahn. The Laboratory report for the Norfolk Tank Farms case accurately restates Whitehurst's dictation. Whether the dispute between Whitehurst and Hahn concerned the Norfolk Tank Farms case or the Arkansas dormitory case, we find no basis to conclude that Hahn suborned perjury or improperly threatened Whitehurst. Even accepting Whitehurst's version of events, we do not think that Hahn's actions can be said to evidence an attempt to cause Whitehurst knowingly to make a materially false statement in his reported conclusions. Nor do we think Whitehurst reasonably could have understood Hahn's remark about a bright high school kid to be a serious threat. Hahn was not Whitehurst's supervisor and had no authority to replace Whitehurst.

There is nothing generally improper in one examiner raising questions with another examiner about report language, methodology or the interpretation of data. Such questions should be motivated by the goal of presenting objective and reliable forensic results in a clear and concise manner. Where examiners differ, the issue should be resolved based on relevant scientific knowledge. In this respect, both Whitehurst and Hahn can be faulted for engaging in a verbal altercation over report language. If they could not resolve their differences professionally among themselves, they should have involved their unit chiefs. It goes without saying that no examiner should attempt to influence another examiner to alter his conclusions by the use of threats or improper pressure. If an examiner believes he or she has been subject to such treatment, the incident should be reported to supervisors and appropriate discipline should be imposed.

We conclude that Hahn did not suborn[] perjury or improperly pressure Whitehurst with regard to the Norfolk Tank Farms matter. Rather than engaging in a heated argument, each examiner should have based his position on relevant scientific knowledge and, if they were unable to reach agreement, they should have sought resolution from their supervisors. Although we did not identify any particular case where EU examiners affected the reported results of examinations by pressuring others, the Laboratory should reemphasize that no examiner should use threats or improper pressure to attempt to influence another and that such misconduct will result in appropriate discipline.

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The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April,1997) Office of the Inspector General, Department of Justice