1997 Congressional HearingsIntelligence and Security
1997 Congressional HearingsMr. Chairman and Members of the Subcommittee,
Thank you for inviting me to appear before you today to testify about the investigation conducted by my office into allegations of wrongdoing and improper practices within certain sections of the FBI Laboratory. The complex and technical subject matter of the issues under investigation made this investigation one of the most difficult ever undertaken by my office. My testimony today will briefly describe the background and process of the investigation, outline our conclusions, and describe our recommendations for changes at the FBI Laboratory.
Background
In late 1993 and early 1994 my office was conducting an audit of the FBI Laboratory when we became aware of certain general allegations about improper laboratory practices being made by Dr. Frederic Whitehurst, a Ph.D. scientist employed in the Laboratory. These allegations were referred to the Investigations Division of the OIG, which conducted an initial, preliminary investigation. This preliminary inquiry discovered evidence corroborating at least some of Dr. Whitehurst's allegations. At that point I decided that a much more extensive investigation, involving an investment of significant resources, was warranted.
It was clear to me that an investigation of scientific practices required the expertise of
experienced forensic scientists. We conducted a search for individuals with international
reputations, who had expertise in the relevant scientific fields and in the operation of
scientific laboratories. Ultimately, we were able to enlist the services of five internationally
renowned scientists to consult with us, including Mr. Nicholas Cartwright, the Officer in
Charge of the Science and Technology Branch of the Royal Canadian Mounted Police; Dr.
Paul Ferrara, the Director of the Division of Forensic Science for the Commonwealth of
Virginia; Dr. Gerard Murray, the Principal Scientific Officer of the Forensic Science
Agency of Northern Ireland; Mr. Douglas Lucas, the retired Director of the Centre of
Forensic Sciences of the Province of Ontario, Canada; and Dr. Richard Schwoebel, the
retired Director of the Surety Assessment Center of the Sandia National Laboratory in
Albuquerque, New Mexico. These men spent countless hours reviewing files, interviewing
witnesses, and reviewing and editing the OIG's investigative report. The Department of
Justice, the Congress, and the American people owe them an immense debt of gratitude for
their services.
In addition to the scientists, the investigative team consisted of four prosecutors of considerable experience, three of whom are Assistant United States Attorneys and one trial attorney from the Department's Criminal Division, as well as OIG investigators and support staff.
The most intensive phase of the investigation took 18 months, required interviews of over 100 individuals, many of whom were interviewed more than once, and the review of over 60,000 pages of documents.
The result was a 517-page report, released publicly on April 15, 1997, in which we detailed
and analyzed the evidence we found, set forth our conclusions, and made recommendations
for changes in Laboratory practices. In the report, we examined 18 specific cases,
including some of the most significant prosecutions in the recent history of the Department,
such as the World Trade Center bombing, the mail bomb assassination of U.S. Circuit
Judge Robert Vance, and the bombing aboard an Avianca Airlines jet. Despite the
significance of these prosecutions and the potential impact of our investigation, Department
officials were supportive of this office and our work on the investigation.
After the completion of a draft report in January, the OIG solicited comments from the FBI and from prosecutors (primarily in the United States Attorneys' Offices) and other lawyers who handled the cases we examined to ensure that no factual errors appeared in the draft report. Although we made some changes to the report in response to those comments, in most cases we did not make requested changes in the draft, and we explained our reasoning either in the final report or in a separate Appendix that contains the responses and our replies.
Allegations and Conclusions
Dr. Whitehurst ultimately submitted over 200 letters to the OIG setting forth allegations
against many of his colleagues in the Laboratory as well as others in the FBI. His
allegations implicated some of the most fundamental aspects of federal law enforcement,
including the reliability of the procedures employed by the Laboratory to analyze evidence,
the integrity of the persons engaging in that analysis, and the objectivity of the testimony
given in cases by Laboratory examiners. His allegations primarily concerned practices in
three units of the FBI Laboratory -- the Explosives Unit, the Materials Analysis Unit, and
the Chemistry-Toxicology Unit. Accordingly, our investigation focused on those three
units, although we did consider the work of some personnel in other units.
Our investigation did not substantiate the vast majority of the allegations Dr. Whitehurst made against Laboratory examiners. Most significantly, the investigation did not substantiate Dr. Whitehurst's claims that examiners had committed perjury and fabricated evidence in various cases. However, we did find deficient practices in the Laboratory and unprofessional conduct by several examiners. In a number of key instances, we found problems that Dr. Whitehurst had not raised but that were discovered by our investigative team.
We found significant instances of testimonial errors, substandard analytical work, and deficient practices. In several cases we found instances of examiners giving scientifically flawed testimony, that is, testimony that relied on speculation or collateral evidence to reach conclusions rather than on scientifically valid methods of analysis. For example, in the case of United States v. Psinakis, the FBI explosives examiner reached his conclusion that tools found in the defendant's home contained residue of an explosive by relying in part on collateral evidence that was collected during a search of the defendant's garbage rather than conducting appropriate scientific tests of the tools. We specifically concluded that the examiner's work in the Psinakis case was inadequate and unprofessional. In the case involving the bombing of an Avianca Airlines jet, we determined that the FBI explosives examiner's testimony regarding the type of bomb used was based on a theory that was scientifically unsound and beyond the examiner's expertise.
We found other instances of examiners giving inaccurate testimony. In a hearing conducted by the Investigating Committee of the Judicial Council of the Eleventh Circuit regarding then-judge Alcee Hastings, the Laboratory examiner testified falsely that he had performed a certain scientific test, when in fact another examiner had performed the test, and he also testified inaccurately regarding the results and significance of the test. In a death penalty case in Florida, another examiner, who was the chief of the Chemistry-Toxicology Unit, testified inaccurately on several points, including testimony about tests he had performed or the results of those tests.
Three Explosives Unit examiners altered, omitted, or improperly supplemented some of Dr. Whitehurst's internal reports as they were being compiled into an official report of the Laboratory. Some of these alterations or omissions resulted in material changes to Dr. Whitehurst's conclusions.
We also found instances of examiners giving testimony beyond their expertise, insufficient
documentation of test results, and an inadequate record management system in the
Laboratory.
Although we found instances where examiners gave inaccurate or misleading testimony, we did not conclude that any examiner had committed perjury. This was not because the OIG investigators did not look for evidence of perjury. Indeed, all four attorneys leading the investigation were experienced prosecutors. In the Alcee Hastings matter, for example, we determined that the examiner had testified falsely. Nonetheless, after examining all of the evidence, we determined that there was insufficient evidence from which to conclude that the examiner in the Hastings matter, or any examiner in the other cases we looked at, intentionally lied or made a false statement while under oath. We have, however, referred the entire investigative report to the Public Integrity Section of the Criminal Division for their review to determine whether further investigation or prosecution of any matter is warranted.
In addition to problems with specific examiners, we also noted numerous management deficiencies. The issues arising out of the case of United States v. Psinakis illustrate not only the failings of an individual examiner but also systemic management failures. In 1989, an Assistant United States Attorney wrote to the Laboratory strongly criticizing the conduct of the explosives residue examiner who testified for the government in the Psinakis case. Although the FBI conducted various reviews of the examiner's work in 1989, 1991, and 1995, the Laboratory never adequately investigated or resolved the concerns about the examiner's work that were raised by the Psinakis prosecutor or by FBI scientists who performed the later FBI reviews. The Laboratory's inability to resolve in a timely way serious and credible allegations of incompetence made against the examiner allowed the problem to fester for almost 6 years.
Other management lapses included an inability to resolve scientific disagreements among Laboratory examiners, a failure to establish procedures and protocols or to enforce existing ones, and a failure to establish a climate in which meaningful peer reviews were the norm. These management failures contributed substantially to the types of examiner problems that we documented in the report.
Recommendations
It is important not only to identify problems but to prescribe solutions as well. We made numerous recommendations that we believe will help the FBI Laboratory move into the next century as an outstanding and world-leading forensic laboratory. Our first recommendation was one already accepted by the FBI -- that the Laboratory pursue accreditation by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. The FBI's response to the OIG draft report acknowledged that "the Laboratory could and should have sought ... accreditation a decade ago," and we commend the FBI for now making such accreditation a top priority for the Laboratory. Although accreditation should not be seen as a panacea for all the ills of the Laboratory, the criteria used in the accreditation process should promote valuable and productive interchanges with other laboratories, as well as to assist the Laboratory in modernizing policies and practices.
We also recommended restructuring certain units in the Laboratory, changing procedures for reporting results of scientific analyses, improving case documentation practices, developing and implementing a coordinated training program for examiners, and monitoring more closely the court testimony of examiners. The FBI has said that it agrees with and intends to implement all of these recommendations.
The systemic recommendations that we made in the report will help the Laboratory avoid in the future the problems we encountered in the matters we investigated. We also made recommendations with respect to individuals based on our review of their work and as part of the organizational and cultural changes that should be undertaken by the FBI. These recommendations included transferring certain examiners and removing others from supervisory responsibilities. The FBI has referred all matters involving the discipline of agents criticized in the report to the Justice Management Division of the Department of Justice.
Since the release of the report, concerns have been expressed about our recommendations
concerning Dr. Whitehurst. We concluded that Dr. Whitehurst could no longer effectively
function in the Laboratory and recommended that the FBI consider what role, if any, he
could usefully serve in other components of the FBI. I want to assure the Subcommittee
that our conclusion and recommendation were not influenced in any way by any desire "to
shoot the messenger." Indeed, my organization depends on individuals like Dr. Whitehurst
coming forward and providing information to us. Nonetheless, we are obligated to hold
him to the same standards by which we evaluated other individuals in the Laboratory. I
can unequivocally say that it was Dr. Whitehurst's performance as a scientist and the
manner in which he made sweeping, unsubstantiated allegations against numerous
individuals that caused us to draw the conclusions that we did.
In assessing the FBI Laboratory as a whole, it is important to bear in mind that we did not review the entire Laboratory or the work of every examiner in the units that we did look at, and consequently our findings should not necessarily be applied to other units or to all examiners in the Laboratory. Indeed, we saw examples of superb work and encountered Laboratory personnel dedicated to the highest traditions of forensic science.
Our objective in the investigation was not only to review and resolve Dr. Whitehurst's allegations in a fair and impartial manner, but also to identify and comment on issues that should be addressed by the Laboratory to achieve excellence in forensic science. We believe that full implementation of these recommendations -- although requiring a significant commitment of time, effort, and resources -- will bring the FBI closer to its goal of having one of the finest scientific laboratories in the law enforcement community.
That concludes my prepared statement. I will be happy to answer any questions that you
may have.