U.S. Department of Justice
Criminal Division
Office of the Assistant Attorney General
Washington, D.C. 20530
January 4, 1996
MEMORANDUM FOR ALL UNITED STATES ATTORNEYS
FROM: John C. Keeney, Acting Assistant Attorney General
SUBJECT: Allegations by FBI Laboratory Examiner Frederic Whitehurst
As most of you know, Supervisory Special Agent (SSA) Frederic Whitehurst, who serves as an examiner in the Laboratory Division of the Federal Bureau of Investigation (FBI), has made allegations, some of which are public, relating to the scientific analysis of evidence in the FBI laboratory. These allegations may involve disclosure obligations in cases that have been or are being prosecuted in your district.
For a period of time, Dr. Whitehurst has been making allegations of perceived problems in the FBI's laboratory to officials within the FBI's Office of Professional Responsibility and the Office of the Inspector General of the Department of Justice. Those Department components have endeavored to examine the allegations in accordance with their respective missions. In addition, written materials prepared by Dr. Whitehurst were made available to attorneys in this Division.
Upon receipt of Dr. Whitehurst's materials, the Criminal Division created a task force of attorneys to conduct a preliminary review of the materials in an effort to determine the nature and scope of the allegations and the identity of criminal cases and examiners involved in the allegations. Generally, Dr. Whitehurst contends that certain FBI examiners who testify in criminal cases are not qualified to perform the testing and analysis of the evidence involved in those cases; that certain examiners slant their scientific conclusions to favor the prosecution's case; and that certain units within the FBI's laboratory maintain insufficient scientific protocols and procedures.
The Department is in the process of evaluating the validity of the wide-ranging allegations raised by Dr. Whitehurst. That evaluation will be time-consuming, and will require substantial legal and scientific resources. The purpose of this memorandum is to advise you of the nature of the allegations made by Dr. Whitehurst; to request that your office determine whether the Government may have disclosure obligations in specific cases prosecuted in your district; and to seek information from your office that will assist the Criminal Division in its further assessment of the discovery issue.
Categories of Whitehurst AllegationsFollowing our initial review of the written materials, we categorized the allegations in an effort to deal with them in an efficient and comprehensive manner. We have concluded that there are three general categories of allegations, as follows:
Category 1Dr. Whitehurst has identified specific federal cases and investigations in which he alleges one or more improprieties occurred in the analysis and/or presentation of evidence by FBI laboratory personnel. We have notified or will shortly notify the U.S. Attorney's Office that handled or is handling each case. Each of these offices should assign an attorney to review Dr. Whitehurst's written materials that relate to the case. That review is necessary to determine whether the Government may be obligated to disclose the materials to the defendant[s] involved, under Brady v. Maryland and its progeny. Attached to this memorandum is an analysis of the application of the Brady principle, prepared by this Division's Appellate Section. The memorandum is intended to provide you with general guidance on the issue of disclosure.
With respect to cases already prosecuted, each affected U.S. Attorney's Office needs to analyze the importance of the laboratory evidence used in each case to decide whether such evidence meets the threshold materiality standard established in United States v. Bagley, 473 U.S. 667 (1985). In accordance with the Supreme Court's pronouncement in Bagley, Whitehurst's information would be material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682. The attached memorandum also sets forth general guidance on disclosure obligations in cases pending trial. Of course, the general principles set forth in the memorandum should be considered in light of relevant precedent in your circuit.
Each office that concludes that disclosure of Whitehurst materials is necessary should notify the Criminal Division so that appropriate technical assistance can be provided to evaluate the allegations and, if appropriate, rebut them for litigation purposes. The Division will assign an attorney to work with your office in an effort to ensure that the Government takes consistent positions on similar issues that may arise in other matters. Additionally, as discussed infra, every decision made by a U.S. Attorney's Office not to disclose Whitehurst materials in a specific matter should likewise be reported to the Criminal Division.
Category 2In his materials, Dr. Whitehurst criticizes the work of a number of FBI laboratory personnel. He contends that certain examiners lack proper qualifications, are not competent to perform the scientific analysis required in a case, slant their opinions to favor the prosecution, or have inappropriately changed Whitehurst's reports. A list of the FBI laboratory personnel criticized by Whitehurst is set forth below. While we are providing a list of the examiners' names to accommodate an effective and speedy review, we wish to emphasize that there is no basis to conclude at this time that any of the examiners acted inappropriately in any case. The presence of an examiner's name on the list is solely a result of the fact that Dr. Whitehurst has criticized the individual in the information he has provided to Department officials.
If any of the listed individuals participated in a case (by testifying for the Government, preparing a report, whether or not it was disclosed in discovery, or conducting laboratory analysis) that is currently being litigated in your district (including at the appellate level), or in an active grand jury investigation, we request that an attorney from your office contact Ms. Ronnie Edelman, a senior attorney with the Criminal Division, at (202) 616-2505. We will promptly provide your office with the materials we have obtained relating to that individual. Upon review of the materials, a determination can be made as to whether the Government should disclose the information to the defense. If your office has such a case in which trial is about to commence, we will assist in expediting the review so that required disclosures can be made on a timely basis.
Even if the information provided to you may not relate specifically to an examiner's work on the particular case or cases within your district, the allegations may be such that disclosure may still be required under applicable legal standards (e.g. that the examiner habitually slants his scientific conclusions to favor the prosecution). If a determination is made that Whitehurst materials relating to a specific examiner should be disclosed to the defense, it will be necessary to coordinate the disclosure with the Criminal Division so that a consistent approach to evaluating the allegations can be taken.
The list of FBI laboratory personnel and their assigned units follows:
Personnel Units1. Rod Asbury Former Chief, Scientific Analysis Section
2. SSA Edward Bender Materials Analysis Unit
3. SSA Richard Hahn Explosives Unit
4. SSA Don Haldiman Case Agent, Atlanta Field Office
5. SSA Robert Heckman Explosives Unit
6. SSA Al Jordan Explosives Unit
7. SSA James Kearney Former Chief, Scientific Analysis Section
8. SSA Lynn Laswell Chemistry and Toxicology Unit
9. SSA Richard Laycock Materials Analysis Unit
10. SSA Roger Martz Chief, Chemistry and Toxicology Unit
11. Dr. Bruce McCord Forensic Science Research & Training Center, Quantico
12. SSA Thomas Mohnal Explosives Unit
13. Kenneth Nimmich Deputy Assistant Director, Research Section Quantico
14. SSA Wayne Oakes Hair & Fibers Unit
15. SSA Mark Olson Administration Unit
16. SSA Al Robillard Former Assistant Chief, Scientific Analysis Section
17. SSA James C. Ronay Explosives Unit
18. SSA Terry Rudolph Materials Analysis Unit
19. SSA James T. Thurman Chief, Explosives Unit
20. SSA David Williams Explosives Unit
Category 3The third category of allegations relates to specific units within the FBI's laboratory. Dr. Whitehurst contends that the Explosives Unit and the Chemistry and Toxicology Unit inappropriately structure their conclusions to favor the prosecution. He also alleges that the Materials Analysis Unit and the Documents Unit maintain insufficient scientific protocols for the work conducted in those units. It will be necessary to obtain more specific information concerning these generic allegations to be able to evaluate their validity. That inquiry will be undertaken, in conjunction with the Inspector General's Office, by a team of attorneys assigned by the Criminal Division, who will be assisted by technical experts.
To assist the Criminal Division in its evaluation of these allegations, please identify cases still in litigation within your office that may be implicated by Dr. Whitehurst's contentions relating to these units. Accordingly, we ask each office to report to the Criminal Division on cases currently being litigated (including at the appellate level) in which FBI laboratory personnel from the four identified units either testified or are expected to testify, prepared a report for purposes of the case, whether or not it was disclosed in discovery, or conducted laboratory analysis in the case.
Please provide the following information to the Criminal Division for all cases still in litigation in your district in which the units of the FBI's laboratory identified above contributed (or will contribute) evidence: (1) the name and docket number of the case; (2) the date of indictment and the status of the case; (3) the identity of the FBI laboratory unit involved in the case and the examiners who performed analysis and/or testified for the Government; and (4) a short synopsis of the work performed by the unit and an assessment of the importance of the evidence presented by laboratory personnel.
In addition to cases still in litigation, the team of attorneys that will be assigned to review these issues will also focus on the Government's obligations with respect to closed cases. After the team evaluates the allegations and has an opportunity to analyze the legal issues involved in closed cases, we will inform you of our conclusions and, if necessary, seek additional information from you as to past cases litigated in your district that involved specific examiners or the affected units of the FBI's laboratory.
At this time, we are requesting the FBI to conduct a thorough search of its files in the Laboratory Division relating to the cases identified by Dr. Whitehurst and the examiners whom he has impugned. The purpose of that review is to help identify all matters, open and closed, that may be impacted by Whitehurst's allegations. Combined with the searches conducted by the U.S. Attorneys' Offices, a complete list of all cases and matters that may require a Brady review should be developed, As the Criminal Division identifies matters from the FBI's files that are or where venued in your district, we will forward all pertinent file materials to your Office.
As this memorandum makes apparent, the disclosure issue raised by the Whitehurst allegations is nationwide in scope, affecting a substantial number of criminal cases in numerous districts throughout the country. For this reason, it is important at the outset for supervisory personnel in each affected U S. Attorney's Office to participate in the decision-making process regarding the disclosure or nondisclosure of Whitehurst materials in individual cases. It is also necessary for the Criminal Division, at least on an interim basis, to monitor all decisions in the U.S. Attorneys' Offices relating to the Whitehurst materials. Accordingly, we request that the Chief of the Criminal Division for each U.S. Attorney's Office, or an equivalent or higher supervisory official, be involved in the decision-making process in every case in which the Government must decide whether Whitehurst materials should be disclosed. In addition, we request that every such decision be reported to the Criminal Division prior to implementation.
I am appointing a team of Criminal Division personnel, under the direction of Ronnie Edelman, to coordinate the matters involving the Whitehurst allegations that I have detailed in this memorandum. Accordingly, to obtain the written materials described in Category 2, and to report to the Criminal Division every decision regarding disclosure of Whitehurst materials, please contact Ms. Edelman at (202) 616-2505. With respect to the information in Category 3 requested from your offices, please fax that information to Ms. Edelman at (202) 305-4624. Thank you for your cooperation in this matter of importance to the Department and the FBI.
Attachment
M E M O R A N D U M
SUBJECT: The Whitehurst Matter: Some Principles Governing the Brady Analysis1. Governing Principles. A defendant is entitled to evidence in the hands of prosecutors under Brady v. Maryland, 373 U.S. 83 (1963), if that evidence is favorable to him and is "material" to guilt or punishment. United States v. Bagley, 473 U.S. 667 (1985). In order to be favorable to the defendant, evidence does not have to point directly to innocence; it is enough if the evidence does no more than demonstrate that a factor that "could link the defendant to the crime do[es] not." Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974). Nor need the evidence defeat this factor conclusively; it need only tend to do so.
Evidence is "material" for Brady purposes "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682. The "mere possibility" that undisclosed evidence might have affected the trial outcome does not establish materiality for Brady purposes. United States v. Agurs, 427 U.S. 97, 109-110 (1976). As a general matter, the courts find that inadmissible evidence is not material for Brady purposes. See, e.g., Wood v. Bartholomew, 116 S. Ct. 7 (1995); United States v. Kennedy, 890 F.2d 1056, 1059 (9th Cir. 1989), cert. denied, 494 U.S. 1008 (1990); United States v. Ranney, 719 F.2d 1183, 1190 (1st Cir. 1983). However, inadmissible evidence may qualify as Brady if it could lead to witnesses or other evidence that would be admissible. See, e.g., United States v. Phillip, 948 F.2d 241, 249 (6th Cir. 1991); Sellers v. Estelle, 651 F.2d 1074, 1077 n. 6 (1981), cert. denied, 455 U.S. 927 (1982).
In addition to purely exculpatory evidence. a defendant is entitled to disclosure of information that could be used to impeach government witnesses. Giglio v. United States, 405 U.S. 150, 154-155 (1972). The same "reasonable probability" standard of materiality applies with respect to impeachment evidence an to other types of evidence. See 2 LaFave, Criminal Procedure sec. 19.5, 184 (1991 Supp.).
Generally, the good or bad faith of the prosecutor in withholding exculpatory evidence is irrelevant to the Brady analysis. In other words, a prosecutor's failure to produce all material evidence favorable to the defense constitutes a Brady violation even if the prosecutor acted in good faith -- that is, under the mistaken belief that the evidence in question was not exculpatory. Conversely, withholding evidence in bad faith does not require reversal if the evidence is not exculpatory. See Agurs, 427 U.S. at 110. However, a court might consider the prosecutor's bad faith in determining whether or not withheld evidence is material on the theory that "[]the fact that the government seeks in bad faith to suppress certain evidence indicates that such evidence may indeed be material." United States v. Jackson, 780 F.2d 1305, 1311 n.4 (7th Cir. 1986).
2. Application of Principles to Pending Cases. As a practical matter, the Brady standard of materiality is difficult to apply at the pretrial or early trial stages because, at those stages, prosecutors cannot know how the trial will play out and thus whether a particular item of evidence is likely to affect the final outcome. For this reasons prosecutors, in the name of prudence, ordinarily turn over questionably material evidence that is favorable to the defense in order to avoid jeopardizing their cases (and being cited for misconduct). In other words, the best Brady policy is to resolve all doubts concerning materiality in favor of disclosure. See Kyles v. Whitley, 115 S. Ct. 1555, 1568 (1995). At the very least, a prosecutor should ask the court to review the evidence in camera to determine if it should be disclosed, instead of taking it on himself to suppress evidence that might qualify as Brady material. See United States v. Schwimmer, 649 F. Supp. 544, 549 n.5 (E.D.N.Y. 1986).
To relate this to the instant matter: Suppose an independent investigation reveals Whitehurst's allegations of sloppiness in the FBI lab to be unmeritorious. That probably would not be a sound basis for withholding disclosure of the allegations. The trial court could refuse to admit the allegations on the ground that, in light of the independent investigation, the probative value of the allegations is substantially outweighed by the danger of jury confusion or considerations of undue delay. See Fed R. Evid. 403. Or the jury could refuse to credit the allegations in light of the independent investigation. But it would be inadvisable for the prosecutor to act unilaterally to suppress the evidence on his own belief -- with which the trial or appellate court might disagree--that the evidence would net be credited by the jury and thus could not affect the trial outcome. None of this is to say that it is never appropriate for a prosecutor to make a materiality determination at the pre-trial or trial stage; he could, for example, justifiably withhold production of an allegation of historical fact that is patently and demonstrably untrue.
3. Application of Principles to Closed Cases. An already convicted defendant may challenge him Conviction on Brady grounds through a motion for a new trial under Fed. R. Crim. P. 33 or a collateral attack on his conviction under 28 U.S.C. 2255. With the full trial record in hand, the prosecution, at the post-trial stage, is in a position to resist such claims on materiality grounds -- that is, by demonstrating that there is no reasonable probability that the withheld evidence would have affected the verdict. In the instant matter this could be accomplished, for example, by a showing that Whitehurst's allegations are unmeritorious, or that the evidence of the defendant's guilt was so strong that Whitehurst's allegations, even if credited by the jury, could not have made a difference in the final result. Courts making a post-trial determination of materiality commonly turn the evidence oven to the defense so as to allow the defense an opportunity to show how it could have used the evidence to its benefit. See 2 LaFave, supra, at 185 (1991 Supp.). Under appropriate circumstances, however -- as where the evidence is arguably confidential or privileged -- the determination of materiality may be made in camera. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
In any closed case that was tried after we came into possession of Whitehurst's allegations and in which we determine, upon a review of the trial record, that there is a reasonable probability that disclosure of the allegations would have affected the verdict, we have an affirmative obligation to bring the Brady violation to the attention of the defendant. On the other hand, we have no obligation to make any post-trial disclosure if our review of the record shows that the allegations would not have been material. Again, any doubts concerning materiality should be resolved in favor either of disclosure or turning the evidence over to the district court for in camera review.
Because a defendant has two years after final judgment to seek a new trial based on newly discovered evidence, see Rule 33, our obligation under the Due Process Clause to disclose Whitehurst's allegations might arguably extend to closed cases that reached final judgment within two years before the allegations came into the government's possession, assuming of course that the allegations would have been material. Moreover, the courts might find that we have a duty, in cases in which the allegations would have been material, to notify defendants of our failure to make post-final-judgment disclosure within the two-year period, since defendants might have recourse to Section 2255 for relief from any resulting constitutional violation. With respect to cases that reached final judgment outside the two-year period, a defendant has no judicial recourse for obtaining a new trial based on newly discovered evidence, unless the new evidence establishes a violation of the defendant's constitutional rights (as would, for example, evidence of knowing use of perjured testimony by the prosecution). See Guinan v. United States, 6 F.3d 468, 470-471 (7th Cir. 1993).
4. Production of Materials other than the Whitehurst Allegations Themselves. The question arises as to what material, beyond Whitehurst's allegations, we might be obligated to produce, such as laboratory reports or notes of tests. First, under Fed. R. Crim. P. 16, a defendant is entitled, regardless of Brady, to discovery of laboratory reports that are material to the preparation of his defense. Second, laboratory paperwork would qualify as exculpatory only to the extent it supported Whitehurst's allegations; the prosecution is not required to produce evidence that is not in itself exculpatory but "might merely lay the groundwork for a favorable argument on the defendant's behalf." See United States v. Whitehorn, 710 F. Supp. 803, 827 (D.D.C. 1989). Finally, the production of Whitehurst's allegations will itself put a defendant on notice of the potentially exculpatory nature of the laboratory paperwork, which the defendant can then attempt to obtain by subpoena. It is well settled that a prosecutor's constitutional obligation is not violated, notwithstanding the nondisclosure of apparently exculpatory evidence, where the existence and possibly exculpatory content of the evidence is known to the defense. See, e.g., United States v. Valera, 845 F.2d 923 (11th Cir. 1988), cert. denied, 490 U.S. 1046 (1989); United States v. Young, 618 F.2d 1281 (8th Cir. 1980), cert. denied, 449 U.S. 844 (1980); 2 LaFave, supra, sec. 19.5, 546 (1984). Having said this, we nonetheless note that, in the event we judge any otherwise nondiscoverable laboratory paperwork to be exculpatory, the cautious approach would be to turn it over; a reviewing court might disagree with our contention that the defense should have known about it.
National Association of Criminal Defense Lawyers (NACDL)