Carey Mathews analyzed FOIA documents while working at NACDL prior to accepting a direct appointment to the USAF Judge Advocate General's Department. A 1997 graduate of George Washington Law School, she is a member of the MA bar. She would like to thank Dr. Frederic Whitehurst for taking his concerns about misconduct in the FBI lab to the Office of the Inspector General, and attorneys Clark Brewster and Guy Fortney, for sharing the cross-examination notes and materials from the trial of Carol Howe.
During an interview conducted by the Office of the Inspector General (OIG) while investigating allegations of misconduct in the Federal Bureau of Investigation laboratory, an FBI examiner stated that "as a rule, almost every examiner in the laboratory is not challenged by the defense and their word is taken." This sentiment was referenced at a September Senate Hearing, A Review of the Federal Bureau of Investigation Laboratory; Beyond the Inspector General Report, when Subcommittee Chairman Charles Grassley (R-Iowa) asked NACDL President Gerald B. Lefcourt why defense counsel have not more aggressively challenged the FBI in court. Lefcourt quickly pointed out that defense attorneys, especially poorly paid indigent defense counsel, frequently do not have the resources and access to materials they need to discredit FBI witnesses. He urged prompt congressional reform of the discovery rules to combat the unfair "trial by ambush" that the average accused currently endures.
Such systemic inadequacies must be corrected by Congress. The Inspector General cannot do it. And prosecutors cannot be counted on to suddenly expand their vision of their Brady obligations.
For now, though, the bar must work with what it has. Facing current reality, this article uses information culled from the thousands of pages NACDL has received through its Freedom of Information Act (FOIA) lawsuit, to remind defense attorneys to cross-examine these "experts" aggressively -- e.g., by revealing weaknesses in their education, errors in their handling of evidence, and their oft-times overbroad, unduly pro-prosecution reports.
Read the Report
When faced with preparing the examination of an FBI examiner, thereport issued by the OIG is frequently the best place to begin.1 It provides valuable information about mismanagement in the laboratory and highlights specific examiners who have testified beyond their expertise, altered reports, or failed to conduct adequate analysis. (SeeAmerica's Criminal Justice System's 10 Most Unwanted , available on the website's homepage). From reading the documents on which the report is based, however, it is clear that the OIG report often fails to address misconduct that was raised during the investigation, such as problems within the DNA Unit and racism of FBI employees beyond that alleged by Frederic Whitehurst, the FBI scientist who blew the whistle on lab misconduct. Yet, as a basic introduction into the structure and operations of the laboratory, the report is certain to assist attorneys whose cases involve the FBI laboratory.2
Government Forensic Witnesses
Know the Witness
One of the most troublesome facts revealed in the FOIA documents is the lack of scientific training of many examiners.For example, Richard Hahn, who identifies himself as a forensic examiner and has given scientific testimony concerning explosions and medical pathology, has a Bachelor of Arts degree in English literature. He began working for the FBI at the age of 18 as a clerical employee and became an agent in 1973. In 1987 he was trained as an examiner in the explosives unit and has attended classes through the FBI at Indianhead, MD, as well as the Central Intelligence Agency (CIA) school. He admitted during the OIG investigation that he did not "take any training classes or training schools that focus solely on the science of bombs or explosives," yet he saw no problems when challenged about the conclusive testimony he gave concerning a fuel air explosion.3 Although no longer working in the FBI laboratory, the OIG report recommends that if Hahn is called to testify about his work as an examiner, his testimony should "be reviewed subsequently by appropriately qualified examiners in the laboratory to assure that he has appropriately limited his testimony."4
Richard Hahn's background is consistent with that of other examiners in the FBI lab. they received on-the-job training either through FBI schools and/or actual crime scenes. Many have no background in forensics but testify fearlessly because their qualifications are rarely contested. A defense attorney must examine the educational background of the witness, and look for aggrandizement. If the prosecutor addresses the witness as "Dr.," know whether the individual has a Ph.D and object if necessary; it is almost guaranteed that the witness will not correct the prosecutor, and the jury is inclined to give the testimony of a "doctor" greater weight than that given by someone with a bachelor's degree.
Find out also how well FBI lab witnesses performed at school and at work. Did they fail or barely pass their chemistry/biology/physics courses; did they graduate with honors? How has the witness performed on proficiency tests conducted within the lab? Were the tests open or blind? According to the FOIA documents, all proficiency test results are kept on record (unless they are destroyed because they are unfavorable, which has happened at least once). Such results should be discoverable and could assist in further challenging the witness' expertise.
A defense attorney might also raise the education issue where a technician operated laboratory machinery and tested the evidence. Try to find what training the technician received in running the machine, what level of education s/he obtained, and whether s/he cleans or calibrates the equipment.
Determine How Evidence Was Handled
and Scrutinize the Lab Report
A number of issues arise when considering the actual processing of evidence within the FBI laboratory, beyond the traditional "chain of evidence" queries. The lab has written procedures for evidence processing, policies for evidence control, and protocols for evidence analysis. The fact that such guidelines exist, however, does not mean they are followed. NACDL has filed a FOIA request to obtain these procedures, policies and protocols.Most lab reports issued by the FBI represent the combined efforts of a principal or primary examiner (PE) and an auxiliary (AE) examiner. PE's are responsible for writing the final laboratory report, although dictation from AE's should be included exactly. Failure to include proper AE dictation and the changing of reports was a major issue in the OIG investigation and it is now purportedly a firm policy to incorporate the AE dictation verbatim.
It is important to note that some agents interviewed by the OIG question the discoverability of AE reports, and examiners stated that not even the prosecution receives a copy. Defense attorneys should still request AE reports and, when refused, cite the OIG report to substantiate the necessity of such a request.
Reports also need to be scrutinized to see whether proper scientific analysis is conducted. In copies of lab reports obtained by NACDL, the absence of alternative explanations is astounding. Consider the following dictation pulled directly from reports issued by the FBI:
An instrumental analysis of specimen Q1 revealed the presence of nitrate which is common in explosives. However, nitrates are also found in nature and therefore the exact identity and source of the nitrate found on specimen Q1 could not be determined. . . . This examination failed to reveal sufficient characteristics which would permit the conclusion that the vehicle had been damaged by an improvised explosive device (IED). However, based on the examination of this one specimen, the possibility of an IED being used in this matter cannot be excluded.
[VERSUS]
Present in the submitted specimens are components of an improvised explosive device (IED) which utilized a main charge consistent with a high explosive. . . . An instrumental analysis of specimens Q1 through Q5 revealed the presence of nitrates consistent with post detonation of dynamites or water gel / slurries. No other residues were found on any of the other submitted specimens.
The disparity between the two reports is clear, as the second report withholds a complete scientific analysis. Defense attorneys should see red flags when reading a report such as this, which fails to mention alternative explanations. It may be necessary to retain a chemist who can offer such alternatives as well as comment on the impact of the environment on the evidence (E.g., how long was the evidence exposed? What were the weather conditions prior to the discovery of the evidence? Is there a possibility of UV degradation?).
Defense attorneys may also wish to obtain the examiner's notes that are created during the analysis of the evidence However, it is unlikely that they will be found in the official file : "I can tell you what my new examiners are doing now. They're not letting their notes go to file. They're keeping them. They're not even sending them down to the mail room. It's unfortunate, but there is a real problem with file keeping at the FBI."5
Such notes can provide valuable information into what the examiner knew about the evidence before
he began to examine it and whether his ultimate conclusions represent all of the information that was
available to him.
Know Your Limits
Although simple suggestions, these suggestions allow control over the FBI witness and illustrate that you
are not a defense attorney who simply "takes their word" without a challenge. But to truly have success in
cross-examining an FBI expert, a defense attorney not only needs to know the above weaknesses and those
in the prosecution's case, but also their own weakness in handling a scientific expert. Purchase The
Reference Manual on Scientific Evidence, published by the Federal Judicial Center, to refine your trial
skills. Or find someone who "speaks science" to have a dialog with the prosecution's expert and
communicate the deficiencies in the expert's opinion or analysis to the jury. No FBI agents or examiners
should be able to brag about not really being cross-examined, especially now that the accute shortcomings
of the FBI laboratory are being revealed.
Notes
1.
and Alleged Misconduct in
Explosives-Related and Other Cases,
Office of the Inspector Gen.
2. The report is available on NACDL's website: www.criminaljustice.org/media/fbilabreport. For those who wish to review or obtains copies of documents obtained through NACDL's FOIA lawsuit against the OIG and FBI, contact Jack King, Director of Public Affairs, at (202) 872-8600 (x228).
3. Interview with Richard Hahn conducted March 8, 1996 during the Whitehurst Review, Bates Stamps 036262-036274, 036535-036546.
4. OIG Report, at 453.
5. Interview with Roger Martz conducted February 26, 1996 during the Whitehurst Review, Bates Stamp 037759.