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Inside the scandals at the FBI Crime Lab
by John Kelly & Phillip K. Wearne

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It's an unusually cool June day in Washington, but Dr. Frederic Whitehurst is hot under the collar. "Have you seen this?," he asks, waving a copy of the Inspector General's (IG) follow-up report on its earlier investigation and report on the FBI's laboratory. "Tom Jourdan is an idiot. He's a criminal," exclaims Whitehurst referring to the head of the explosives unit which was severely criticized by the original IG report.

Whitehurst is the recently vindicated and resigned FBI lab agent and inspiration for this book who singlehandedly forced the IG's investigation of the lab after complaining internally for ten years with no response from the FBI or Justice Department. He's upset on this June day because the FBI has notmet a single major demand made by the IG over a year ago. At that time, the IG found serious deficiencies in the explosives unit -- now known as the Explosives Operations Group (EOG) -- and a strong bias toward conviction. By any definition, the EOG did not qualify as a scientific unit.

So the IG made essential recommendations which the FBI could have met in weeks, if not sooner. The FBI fully agreed with the recommendations, and FBI director Louis Freeh promised to implement them quickly. First and foremost, the IG said the EOG should hire qualified scientists. At the time, the EOG had vacancies and employing professional scientists costs the FBI much less than special agents. A second recommendation was to bring contamination under control since it was widespread in the unit. Contamination testing and monitoring as well as a quality control program could have begun immediately.
A third recommendation called for written orders that lab reports be objective and that their conclusions logically follow from the underlying data. One would have thought there would be no need for such orders in a scientific unit, but the IG found reports based on speculation and personal information about a defendant rather than hard forensic evidence. The reports also had a prosecutorial bias and overstated the significance of the evidence against the defendant.

Related to this recommendation was that lab reports be peer-reviewed by another qualified scientist before being used by the prosecution. Yet another recommendation was that a sampling of court testimonies be reviewed annually
for objectivity, accuracy, and scientific integrity. In short, truthfulness. This recommendation also seemed unnecessary but was necessitated by the IG's finding that FBI examiners gave false testimony and lied on the witness stand.

The need for these recommendations are evident to a high school general science student, but not a single one had been implemented a year after the IG report. Quite the contrary. Tom Jourdan had filled every position in the EOG with special agents because he wanted his examiners to have the authority to manage crime scenes, execute search warrants, and personally break into buildings to conduct searches. He wanted cops, not scientists, and this is what he was allowed to hire. These, of course, were the types of examiners, like Tom Thurman, David Williams, and Wallace Higgins who saw themselves as an arm of the prosecution. This is what got the EOG in trouble in the first
place, and yet it has been re-created in its original form.

Jourdan and the chief of the entire Scientific Analysis Section (SAS), Dwight Adams, told the IG that he was required to hire special agents. Not so, said Richard Kerr, the new, much-ballyhooed head of the lab whose first promise was to hire more qualified scientists. Well, did he know this was going on for a year right under his nose? The IG follow-up report doesn't say. But now that it's happened, Kerr is leaving things as they are while assuring the IG that if vacancies open up in the "years ahead," he will try, no promises, but he will try to fill them with scientists.

During this year, there was also no contamination monitoring or testing. Jourdan told the IG that he thought the Chemistry Unit (CU) had been testing
for contamination, but he had never bothered to read any of the reports. So even if they found contamination, he would not have corrected it. The chief of the CU, Steve Burmeister said he didn't know what Jourdan was talking about because the CU had conducted no contamination testing. And where was Richard Kerr during all this? The IG doesn't say. Clearly, he wasn't on the case during the year in which his main mission was to clean up the lab.

No explanation was given as to why the FBI had not created written instructions about the nature of lab reports, and the FBI claimed it had not reviewed court testimonies because of the difficulties in obtaining court transcripts which are available to anyone off the street. The FBI also had not instituted any measures to prevent non-scientist agents from altering lab
reports so that they would favor prosecution and conviction. This had been a relatively common occurrence in the EOG, and a year later the IG found indications that it was still occurring but let it slide.

The IG follow-up report dealt only with the explosives unit. But since the publication of our book in the United States, we have investigated the operations of the DNA unit which the IG claimed was a model of scientific integrity. We found that the original IG investigation discovered quite the contrary. That the DNA unit was seriously negligent, but the IG covered up this finding. We discovered that Drs. Greg Parsons and Martin Alevy of the DNA unit had refused to testify on behalf of the FBI because they felt the DNA testing could be faulty, unreliable, and inaccurate. They felt so strongly about this that they left the lab to resume being street agents with a cut in pay and rank.

The head of the DNA unit, Dr. Jenifer Lindsey Smith, and her subordinates totally botched the DNA testing in the Unabomber case such that the prosecution would not have been able to use the results if Unabomber suspect Ted Kaczynski had gone to trial. Smith did not even bother to obtain a sample of Kaczynski's actual DNA, and an FBI affidavit lied that there was a match found between the Unabomber's DNA and Kaczynski's DNA.

In November 1997, the FBI announced their new DNA identification policy wherein under certain arbitrary conditions, they would declare in court that a defendant is the only possible source of DNA evidence found at a crime scene. They will no longer say there is such and such a probability. They will identify the defendant with 100 percent certainty. This policy has been met with shock by the forensic scientific community which points out that science does not deal in absolutes and that the FBI did not scientifically validate its identification policy before implementing it. At the press conference, the FBI stated that Dr. Bruce Budowle, who had made the new identification policy possible, would be publishing a validation study after the fact in the International Journal of Legal Medicine. In May 1998, the authors received a letter from the editor of the journal saying that he had received no such submission for publication from Budowle.

The DNA unit has also recently begun using mitochondrial DNA test results in court. DNA as it's commonly referred to is nuclear DNA. Mitochondrial DNA is DNA found outside of the cell's nucleus. A survey of DNA specialists found that they do not feel mitochondrial DNA testing can be legitimately used to
incriminate suspects. Secondly, as was the case with the identification policy, the FBI performed no adequate scientific validation studies before applying this technique which has been used in a least seven convictions.

Overriding these serious problems is the fact that the DNA unit refuses to do double blind external proficiency testing of its examiners. This is the only universally accepted method for determining an examiner's competency, reliability, and accuracy. In effect, there is no reason to believe DNA test
results from the FBI because there is no measure of their truthfulness. This is especially true because the FBI did a secret study and found that their examiners made a lot of errors trying to match DNA profiles between the same person.

In its original investigation, the IG found that Wallace Higgins, an examiner in the exposives unit, had secretly altered scores of Whitehurst's lab reports for years. In his rewrites of Whitehurst's reports, Higgins omitted important qualifying language, sometimes eliminated Whitehurst's forensic opinion altogether, changed findings, and even managed to identify the
presence or absence of chemical compounds not identified by Whitehurst. In one instance, Whitehurst wrote: "No indication of the presence of lead organic primary explosive was found." Higgins left out this sentence altogethe, inserting his own: "An electrical match inside the detonator initiates lead styphnate and lead azide which in turn initiates the PETN." This was pure alchemy. Higgins had turned the absence of lead into a presence and detailed how he supposed it all worked.

Higgins had faked it which is what he did recently for Japanese forensic scientists in examining and explaining evidence in a bombing case in Japan. Higgins told an FBI colleague that he didn't know what he was talking about, but the Japanese were too polite to correct him. There are many on-going collaborations between FBI lab personnel and Japanese officials. This is a
very dangerous situation particularly since the Japanese are unaware of the systemic corruption and inadequacy of the FBI lab. We recently discovered that a top Japanese forensic scientist who works for the police and with the FBI did not know about the IG investigation or report about the FBI lab.
Hopefully, our book will lead to a examination and alteration of this relationship.

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Tainting Evidence - Inside the Scandals at the FBI Crime Lab
from The Free Press

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Copyright 1998 Tainting Evidence
Last modified: July 10, 1998