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 H9: THE UNABOM ARTICLE

The July 1994 issue of the Crime Laboratory Digest contained an article by EU examiner Thomas Mohnal describing fourteen explosive devices attributed to the so-called Unabomber. The characteristics of the bombs as described in the article were based on forensic examinations that had been performed over several years by the FBI Laboratory and the laboratories of the Bureau of Alcohol, Tobacco and Firearms (ATF) and the U.S. Postal Inspection Service (USPIS). Some statements made in the article were based on work done by Terry Rudolph when he was conducting explosives residue examinations in the Laboratory in the 1980s. The article was published in an effort to develop investigative leads by describing the devices used by the Unabomber and disseminating this information to crime laboratories throughout the world.

Shortly after the article appeared, Whitehurst wrote to the OIG complaining that it contained false information and that, before it was published, the Laboratory should have addressed concerns raised by Steven Burmeister about the validity of conclusions reached earlier by Rudolph. He repeated this allegation in later correspondence and in an interview in this investigation. Whitehurst alleged that, when Burmeister attempted to raise his concerns, he was rebuffed by Mohnal and Christopher Ronay, the chief of the EU. Finally, Whitehurst maintained that work done some years ago by the ATF or the USPIS should be reevaluated in light of current scientific knowledge.

To evaluate Whitehurst's allegations, we reviewed documents provided by the FBI related to the article and to Burmeister's review of work done by Rudolph on the UNABOM investigation. We also interviewed Whitehurst, Burmeister, Mohnal, Tom Roberts, Ronay, and Rudolph.

Based on our investigation, we conclude that neither Mohnal nor others in the Laboratory acted improperly in publishing the UNABOM article in July 1994 without first addressing Burmeister's concerns. This conclusion reflects both the limited purpose of the article and our inability to determine if Mohnal knew of Burmeister's concerns before the article was published. In retrospect, given the significance of this case and the fact that by July 1994 the Laboratory was on notice of possible deficiencies in Rudolph's work, it would have been desirable to review Rudolph's findings and confirm them before they were described in the article.

Furthermore, the concerns raised by Burmeister about Rudolph's conclusions appear in several instances to be well-founded. These concerns were brought to the attention of Mohnal and Laboratory management not later than September 1995. Mohnal then attempted to prepare a response based on information he obtained from Rudolph. As set forth below, the response does not adequately address Burmeister's concerns. Nor did we find that Rudolph persuasively addressed those concerns in his OIG interview. Accordingly, we recommend that a qualified explosives residue examiner undertake a detailed review of all of Rudolph's UNABOM work before it is used further in the case.

Neither Whitehurst nor Burmeister has reviewed the examinations done by the ATF or the USPIS in this matter. The thoroughness of those examinations and the validity of any resulting conclusions are beyond the scope of this Report, and we do not address them here.

EU examiner Thomas Mohnal became the Laboratory's principal examiner (PE) in the UNABOM investigation in June 1993. Before then, Ronay had been the PE. As the PE, Mohnal began writing an article about the case for an FBI-published periodical, the Crime Laboratory Digest.

Mohnal intended to describe features of the fourteen explosive devices attributed to the Unabomber in the hope that investigative leads might develop after the article was disseminated to crime laboratories around the country. In preparing the article, Mohnal relied on Laboratory reports prepared by the ATF, the USPIS, and the FBI. For many of the earlier bombings, the ATF and the USPIS had done all the forensic work. In the instances where the FBI had examined the explosive devices, former MAU examiner Terry Rudolph had done the explosives residue analysis.

After becoming involved in the case, Mohnal also asked Burmeister in the MAU to assist with explosives residue analysis of the UNABOM evidence. In the summer of 1993, Mohnal asked Burmeister to review the files reflecting the Laboratory's prior explosives residue analyses on the case. Mohnal and Burmeister agreed that such a review was desirable to see whether there was any pattern developing over time that could tie the bombings together.

Burmeister reviewed the UNABOM case files and, sometime in the spring of 1994, summarized his conclusions in an informal memorandum entitled UNABOM review by SSA Steven Burmeister. As reflected in this memorandum, Burmeister found that certain files lacked documentation such as work notes or any information on how the Laboratory had processed the evidence. In several of the files, Burmeister criticized Rudolph's previous work for failing to include sufficient standards, to perform confirmatory tests, to address all significant substances found, or to include data sufficient to support the stated conclusions.

Mohnal and Burmeister have conflicting recollections about any discussion of Burmeister's memorandum. Burmeister remembers giving it to Mohnal and says he most likely discussed it with him shortly after preparing it in the spring of 1994. In contrast, Mohnal denies that Burmeister gave him the memorandum or discussed it with him. Mohnal told us during an interview that he did not know of the memorandum until September 1995, when it was given to him by Tom Roberts, a prosecutor from the Department of Justice who then headed the UNABOM Task Force. In May 1994, Burmeister did give a copy of his UNABOM memorandum to John Sylvester, an Assistant General Counsel in the FBI's Office of General Counsel (FBI OGC). Sylvester was one of the attorneys then working on the FBI OGC investigation of allegations made by Whitehurst concerning Rudolph and other matters within the Laboratory. In an interview, Sylvester asked Burmeister if he had seen any of Rudolph's work. Burmeister responded by describing his review of Rudolph's UNABOM examinations. On May 31, 1994, Burmeister sent Sylvester a copy of the memorandum.

About a month later, Mohnal's article appeared in the July 1994 issue of the Crime Laboratory Digest. Burmeister said he had not seen drafts of the article before its publication, and when he read the published article, he questioned its statement that the person making the bombs was using potassium chlorate, AN and AL [sic] as constituent chemicals for the explosive charge. Burmeister thought this statement incorrectly implied that all the mentioned chemicals were found in the later bombs, and he thought that he should have reviewed the article before its publication.

Mohnal and Burmeister also differ in their recollections of conversations after the article appeared. Burmeister said he told Mohnal his concerns, and Mohnal responded that the article was already published and there was little to be done. In an OIG interview Mohnal said that he did not recall telling Burmeister this and that, in any event, Burmeister's concerns did not really affect the information being presented in the article. Mohnal said that while the article may not have been worded as precisely as it could have been, there was no harm insofar as it was intended to disseminate general information about the devices to develop investigative leads.

More than a year after the article appeared, Mohnal was contacted by UNABOM prosecutor Roberts concerning allegations by Whitehurst that the article contained questionable information. Roberts gave Mohnal an excerpt from a July 13, 1994, letter from Whitehurst to the OIG. Enclosed with Whitehurst's letter were copies of the article and Burmeister's memorandum. Whitehurst in his letter compared statements from Burmeister's memorandum with statements in the article and observed, The data concerning the type of charge used in the bombs that SSA Mohnal reported in the article is either in question or there appears to be no hard data to back it up.

After receiving the Whitehurst letter and Burmeister memorandum from Roberts, Mohnal approached Laboratory Director Milton Ahlerich to discuss what should be done. Ahlerich told Mohnal to draft a written response. Mohnal prepared a memorandum dated October 3, 1995, that addressed allegations made by Whitehurst as well as certain concerns raised by Burmeister in his review. In his memorandum, Mohnal noted that in some instances where Whitehurst had asserted there was a lack of hard data to support statements in the article, the statements were in fact supported by forensic examinations done by the ATF or USPIS. With regard to the accuracy of certain conclusions reached by the FBI Laboratory, Mohnal attempted to describe the underlying examinations. To prepare the memorandum, Mohnal talked with Rudolph about his explosives residue work, although Mohnal's memorandum does not mention this fact.

Mohnal recalls that Ahlerich, EU Examiner J. Thomas Thurman, and Randall Murch, who then was chief of the SAS, each reviewed a draft of his memorandum. He also believes that each of them knew he had consulted with Rudolph in preparing it. Neither Burmeister nor Whitehurst was asked to review Mohnal's memorandum, and no explosives residue examiner other than Rudolph provided information to Mohnal for the memorandum. Mohnal told us that his primary objective in preparing the memorandum was to rebut Whitehurst's accusations that he had deliberately included incorrect information in the article, and Mohnal said he was less concerned about responding to issues raised by Burmeister.

After completing his memorandum, Mohnal gave a copy to Roberts and further discussed Whitehurst's allegations with the prosecutor. Roberts concluded the allegations were not substantiated because Whitehurst had not worked on the case himself, he was applying current Laboratory practices to criticize examinations done years before, certain conclusions reached by the FBI Laboratory had been independently corroborated, and the Unabomber's writings themselves supported conclusions reached by the Laboratory. Roberts said he knew Rudolph had been criticized for sloppy work habits, but he did not think Rudolph had been found to have fabricated conclusions.

In a letter dated October 5, 1995, James Maddock of the FBI OGC advised the OIG that Roberts had apparently concluded that Whitehurst's allegations were unsubstantiated. Maddock further stated, This information is being provided because it bears on the credibility of Mr. Whitehurst and also illustrates the disruptive impact that his allegations have had on FBI operations.

In this discussion we evaluate Whitehurst's allegations about the article and concerns raised by Burmeister about Rudolph's work on the case.

Whitehurst alleges that the Laboratory improperly failed to address the concerns raised by Burmeister before the article was published. Mohnal, as noted above, said he was unaware of Burmeister's concerns until September 1995 -- more than a year after the article was released. Moreover, Mohnal noted in his October 3, 1995, memorandum:

We are unable to find that Mohnal or others in the Laboratory deliberately ignored Burmeister's concerns in publishing the article in July 1994. Mohnal and Burmeister have conflicting recollections of whether they discussed Burmeister's concerns, and we cannot conclude that Mohnal knew of them before the article was released. We also recognize that the article was intended as a general summary of the devices in order to develop investigative leads.

In retrospect, however, given the significance of this case and the fact that by July 1994 the Laboratory was on notice of possible deficiencies in Rudolph's work, it would have been desirable to review Rudolph's findings and confirm them before they were described in the article. Mohnal acknowledges that he had asked Burmeister to work on UNABOM before the article was released, and we find it astonishing that Mohnal would publish an article purporting to summarize the features of the different bombs without soliciting input from Burmeister, the explosives residue examiner then assigned to the case.

Moreover, we think Mohnal erred in his statement that the article was subject to peer review before its publication. Insofar as the article described conclusions based on the examination of explosives residue, a peer review would involve substantive review by someone knowledgeable in that field. Neither Kearney nor Ronay had such expertise. Moreover, neither could specifically recall reviewing the article, and Kearney noted that if he had done so, his review would have been purely administrative. Similarly, any review directed by the staff of the Crime Laboratory Digest would have been largely administrative, because the reviewer would not have had access to the case files or scientific data.

Whitehurst alleges that Mohnal blew . . . off Burmeister when the latter first expressed his concerns about Rudolph's work on UNABOM. Our investigation did not substantiate this allegation. Burmeister told us he did not recall Mohnal reacting negatively or expressing a lack of concern. Burmeister also said he did not recall telling Whitehurst that Mohnal had been unreceptive to Burmeister's findings.

Whitehurst also alleges that Burmeister told him about a conversation involving Ronay, Thurman, and Burmeister, in which they recognized that there were some problems in previous analyses in the case and Ronay said, [D]on't open that can of worms, don't open it. In an interview with the OIG, Burmeister said that he did not recall this conversation and that the alleged phrase about a can of worms would be out of character for Ronay. Burmeister also said that he could not recall discussing his review of Rudolph's UNABOM work with Ronay or Thurman, although he had discussed it with MAU Chief James Corby and Whitehurst.

In 1995, after Roberts gave Mohnal copies of Whitehurst's July 13, 1994, letter and Burmeister's memorandum, the Laboratory failed to respond adequately to the concerns raised by Burmeister. By this time, Laboratory Director Ahlerich was aware that serious questions had been raised about the quality of Rudolph's work and a review of all of that work was under way. Mohnal at the least knew that Burmeister, who then was the Laboratory's only examiner working in the field of explosives residue analysis, had raised serious questions about Rudolph's work on the UNABOM case in particular. Mohnal was not himself qualified to evaluate the criticisms raised by Burmeister or Rudolph's response. In these circumstances, the Laboratory should have sought a thorough review of Rudolph's work by a qualified explosives examiner. Mohnal's October 3, 1995, memorandum -- prepared with Rudolph's input without any opportunity for Burmeister to comment further -- was not an adequate response.

We do not criticize Roberts for concluding, based on his discussions with Mohnal, that Whitehurst's allegations were not substantiated. Roberts evidently relied on the principal examiner (Mohnal) for guidance on the scientific issues. In contrast, we find that the OGC was not justified in concluding, as was stated in Maddock's letter to the OIG, that Roberts' conclusions bore on Whitehurst's credibility and Whitehurst's disruptive effect on the FBI. The OGC had received Burmeister's review in May 1994, questioning Rudolph's work on UNABOM, and the OGC was also aware of general concerns about Rudolph's work. Given these facts, we do not think the OGC could justifiably rely on conclusions from a non-scientist prosecutor to evaluate the merits of the allegations raised by Whitehurst, who had largely repeated the concerns noted by Burmeister.

During the OIG investigation, Burmeister for the first time reviewed Mohnal's October 3, 1995, memorandum. Burmeister observed that Mohnal himself was not qualified to comment on explosives residue analyses, and that Rudolph should have responded himself. Moreover, Burmeister thought some statements in Mohnal's October 3, 1995, memorandum were incorrect, failed to account for missing notes and charts, or did not address why standards and confirmations were not run on particular samples. We also interviewed Rudolph regarding his work on the UNABOM case. Rudolph strongly disagreed with Burmeister's criticisms, defended the statements in Mohnal's October 3, 1995, memorandum, and acknowledged he had supplied the underlying information to Mohnal.

For purposes of this investigation, we considered the comments in Burmeister's initial review; Mohnal's response in the October 3, 1995, memorandum; Burmeister's further comments in an OIG interview, and Rudolph's defense of Mohnal's statements in an OIG interview. The remainder of this section summarizes their respective views with regard to six of the devices attributed to the Unabomber. In most instances, we find that Burmeister's concerns are well founded. As a result, we conclude that a qualified explosives examiner should review all of Rudolph's work on UNABOM before it is used further in the case.

Burmeister wrote in his review that Rudolph's findings indicated smokeless powder was removed from the device and that the ATF had found smokeless powder and match heads, but there was no data in the files to review. Burmeister also noted that there was no information on how the FBI processed the evidence.

Mohnal wrote the following in his response to Burmeister's comments:

Burmeister stated in his OIG interview that the information cited by Mohnal was not in the case file. If instrumental analysis was used in this instance, Burmeister questioned why it was not used in the examination of some later devices in which Mohnal stated smokeless powder was identified by physical characteristics alone.

In an OIG interview, Rudolph could not recall what instrumental techniques were used, but he speculated that it could have been infrared spectrometry (IR). Rudolph could not explain the absence of charts relating to the alleged instrumental tests. Rudolph also could not explain why he would have used instrumental analysis to identify smokeless powder in this device, when it evidently was not used to make such an identification in a later device. Rudolph said that when this work was done, there was no set protocol for identifying smokeless powder and that he pretty much left it up to Bender [his technician], who Rudolph said was the expert in the lab for such work.

Rudolph's responses are unpersuasive, and his performance in this case lacks competence. The case files do not contain sufficient information to identify the analyses performed, if any, or to understand the basis for the stated conclusions. Rudolph, as the examiner, was responsible for determining what tests were performed, and he cannot excuse the inadequacy of the file by saying he simply left things to his technician.

Burmeister's review noted that smokeless powder was provided to the FBI but there was no data in the file to review and no information describing how the evidence was processed.

Mohnal's response stated:

Mohnal also noted that the FBI Laboratory had not conducted instrumental analysis of unconsumed smokeless powder.

In his OIG interview, Burmeister stated that Mohnal's response referred to analyses that were not contained in the case file. Rudolph said that Mohnal's response was not based on anything Rudolph had located in the file, but instead was based on Rudolph's recollection. Rudolph wasn't sure what tests he conducted but thought it was probably x-ray powder diffraction (XRD).

Again, Rudolph's answers strongly suggest a lack of competence. Rudolph's response illustrates the general problem with his inadequate case documentation that was discussed in Part Three, Section A, supra. His work is of little value if the files do not document the basis for the stated conclusions and Rudolph must rely only on his uncertain memory of what he probably did in the particular case.

Burmeister's review noted that there was no data in the file concerning a finding of smokeless powder in the debris. With regard to certain ion chromatography (IC) results, Burmeister observed that Rudolph had failed to mention the presence of sulfate, that no standards were run, that there were some unidentified peaks, and that there were no confirmations.

Mohnal responded with the following:

In his OIG interview, Burmeister stated that there were no notes or data in the case file to establish how smokeless powder was identified. He also noted that Mohnal had not addressed the comments about the lack of standards, confirmations, and peak identifications.

Rudolph addressed the issue of lack of standards and peak identification as follows:

Rudolph added, So it was not uncommon not to have a standard in the file, and it was not uncommon not to identify those peaks. I mean, I just run the chart and throw it in there. I mean, I'm only going to be -- the only person that's going to identify them.

With regard to confirmations, Rudolph stated that, given his expertise, he at the time didn't think it was necessary to do a confirmation like they do today. He also said that his failure to identify sulfate and other substances in his report was not significant in my view.

Rudolph's approach to the use of standards and confirmations was flawed, measured by the generally accepted procedures used in forensic science at that time. Without a protocol, Rudolph had no guide to determine when a standard or confirmation was required, and his failure to document his work means his conclusions cannot be verified. Here, a confirmation test was a necessary prerequisite to a positive identification. Rudolph's shortcomings in this case, including his misplaced reliance on his expertise as a substitute for confirmatory tests, were also displayed in the Psinakis case. Rudolph's responses to Burmeister's concerns are similar to his response to Corby's 1995 file review of Rudolph's cases. As previously noted in Part Three, Section A, we find Rudolph's reasoning unacceptable and unprofessional.

Burmeister's review noted that Rudolph should have run additional tests to confirm an identification of ammonium nitrate based on x-ray powder diffraction (XRD). Burmeister also questioned why a confirmatory test had not been done for the identification of aluminum with a scanning electron microscope (SEM) and why no organic extraction had been done to test for the presence of organic explosives.

Mohnal's October 3, 1995, memorandum observed:

In reviewing Mohnal's memorandum, Burmeister strongly disagreed with the statement that x-ray powder diffraction has long been considered a positive form of identification. Burmeister said, I don't believe that XRD by itself is a confirmational tool. You have to have backup. Burmeister indicated that SEM/EDXA would be used at bare minimum . . . but I personally would back that up one more step with ion chromatography which I do. Burmeister also noted that Rudolph wrote a paper in 1983 in which he described organic extraction during residue examination yet he failed to conduct one in this case.

Rudolph maintained that XRD has long been a positive form of identification, and disputed Burmeister's statement that use of an SEM was necessary to confirm the identification of ammonium nitrate.

In principle, XRD can be used to obtain a positive identification. However, because of the characteristics of ammonium nitrate, we accept that an examiner may feel it is appropriate to confirm its presence with a second test.

In his review, Burmeister indicated that Rudolph could not conclude from the presence of potassium sulfate that the explosive device contained black powder. He also questioned how Rudolph had identified aluminum on specimen Q5, as the results were not in the file.

Mohnal's response referred to this device as the 6-13-85 device. He stated the following regarding SSA Rudolph's analysis of the evidence:

Mohnal admitted that no SEM chart could be located to confirm the aluminum on specimen Q5. He stated that [d]ue to the amount of unsolicited and unauthorized reviews of these enclosures, this chart could have been misfiled and additional reviews are underway to locate this chart.

Burmeister maintained that the presence of potassium sulfate does not in itself establish that explosives residue came from black powder. In a later interview, Rudolph stated that Burmeister was dead wrong in this respect. Rudolph stated that [t]here is no chemist that I know that when they're dealing with pipe fragments, explosive-type residues, if they don't find potassium sulfate, would not make a finding of black powder or black powder-related. Rudolph also informed the OIG that he did not look for the missing chart.

We agree with Burmeister's reasoning in this instance. Rudolph is incorrect in thinking that black powder can be identified solely by the presence of potassium sulfate. Even Mohnal's response only says potassium sulfate is indicative of black powder. Moreover, we find unpersuasive the suggestion in Mohnal's memorandum that Rudolph could identify black powder based on the presence of potassium sulfate because in Rudolph's experience the latter substance was not found except in black powder-related explosives. As we have observed earlier, an examiner's subjective or impressionistic experience is no substitute for scientifically valid procedures. Finally, assuming Rudolph in fact used the SEM, either Rudolph erred by failing to include the SEM/EDXA chart in the file, or this case provides another example of inadequacies in the Laboratory's system for the storage and retrieval of case files.

Burmeister criticized the results for specimens Q23 and Q28 in his review. He stated that Rudolph should have done tests in addition to XRD before identifying ammonium nitrate on these specimens, and noted that Rudolph had failed to mention the presence of sulfates. Burmeister further stated, Data not complete and hard to review, no confirmations. Burmeister also noted that certain IC charts were not labeled.

Mohnal wrote that [a]mmonium nitrate and Aluminum powder were found on specimen Q91 by x-ray powder diffraction. Again this is considered a positive form of confirmation and in 1985 the FBI Laboratory protocol did not require conducting any other analyses. It is unclear why Mohnal addressed specimen Q91 rather than the specimens criticized by Burmeister.

After reviewing Mohnal's memorandum, Burmeister reiterated that based on the information in the case file he could not see how ammonium nitrate was identified through XRD and that IC charts were not labeled and therefore could not be matched with specimens.

Rudolph could not explain why specimen Q91 was addressed by Mohnal. With respect to the unlabeled charts Rudolph stated, I mean, just like I mentioned before, the peaks were not labeled. I mean, I could take this, this is nitrate and sulfate, and I would know that. I'm going to be the guy testifying to it. Rudolph further opined, I mean, I just felt -- nobody ever told me that, you know, 15 years later I was going to have a review, that people needed to know in the review what those things were. Rudolph also stated that [h]e [Burmeister] comments I do not address sulfates. Again, I didn't see the significance, like before.

We conclude that Burmeister's criticisms are well founded. Because the XRD chart was unclear, a confirmation was needed to make a positive identification. Moreover, the lack of documentation is unacceptable and is consistent with the pattern that we have seen in Rudolph's cases.

We do not find that Mohnal or others in the Laboratory acted improperly in publishing the UNABOM article in July 1994 without first addressing Burmeister's concerns. Given the significance of this case and the fact that the Laboratory was on notice of possible deficiencies in Rudolph's work, it would have been desirable to review Rudolph's findings and confirm them before they were described in the Crime Laboratory Digest article.

Furthermore, the concerns raised by Burmeister about Rudolph's conclusions appear in several instances to be well-founded. The Laboratory did not adequately address these concerns after they were brought to the attention of Mohnal and Laboratory management in September 1995. Rudolph's work on UNABOM displays the same problems of inadequate documentation and conclusions not supported by sufficient data that we noted in the more general discussion in Part Three, Section A above.

A qualified explosives residue examiner should undertake a detailed review of all of Rudolph's UNABOM work before it is used further in the case. In response to a draft of this section of the report, Robert Cleary, a Special Attorney to the U.S. Attorney General, advised the OIG that the Government would not be relying upon any of Rudolph's work in the UNABOM case as part of the prosecution of Theodore J. Kaczyski, who has been indicted on charges related to bombings attributed to the Unabomber. Cleary stated that to the extent the Government will offer explosive residue evidence in the Kaczyski case, it will be relying upon the conclusions of Burmeister and other, non-FBI laboratories.

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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