|FBI Laboratory |
Statement of James M. Maddock, Deputy General Counsel, and Donald W. Thompson, Jr., Acting Assistant Director, Laboratory Division, Federal Bureau of Investigation, Before the House Subcommittee On Crime of the Committee On the Judiciary, Washington, D.C., May 13, 1997.
Good afternoon, Mr. Chairman and Members of the Committee. Thank you for the opportunity to appear before you this afternoon to discuss some of the issues raised recently concerning the FBI Laboratory.
For the past year and a half, the FBI Laboratory has undergone an unprecedented investigation by the Department of Justice Inspector General. The FBI fully cooperated with the Inspector General's investigation by providing thousands of pages of documents, making employees available for interviews, and providing any and all assistance requested by the Inspector General and his staff during the course of the investigation. We do not believe that such a complete and comprehensive investigation of the Laboratory would have been possible without the full cooperation of the FBI.
As you know, the Inspector General's investigation was triggered by the allegations that Special Agent Frederic Whitehurst made against fellow FBI employees. The Inspector General found that the vast majority of those allegations were unsubstantiated. We think it is important to note that many of Mr. Whitehurst's allegations suggested that several of his colleagues were guilty of criminal misconduct -- tampering with evidence, obstruction of justice, perjury, suppression of evidence -- none of which were substantiated by the Inspector General.
We acknowledge that there were problems with former Lab management and with the performance of several Lab examiners. But none of these problems amounted to criminal misconduct. Rather, the problems identified by the Inspector General involved individual performance failures; failures which led the Inspector General to make a number of recommendations to improve the FBI Laboratory. We have agreed to each of these recommendations and have either implemented, or are taking steps to implement, each of them. As a result, we are confident that the management and individual performance problems identified by the Inspector General are being resolved and will not recur.
In addition, it is important to note that the FBI Laboratory currently consists of 35 units, each of which specializes in a particular forensic discipline. The Inspector General's investigation focused on three of those units: the Explosives Unit, the Chemistry-Toxicology Unit, and the Materials Analysis Unit. Moreover, the Inspector General's most serious criticisms apply to the performance of only a few individuals within those units. We do not have any indication that the remaining 32 units have experienced similar performance and management problems. We are confident that the extensive audit procedures that the entire Lab is undergoing in preparation for accreditation by the American Society of Crime Laboratory Directors/Lab Accreditation Board will identify any remaining problems in the Lab. The FBI is committed to eradicating any weaknesses in the Lab and to performing its duties with the highest scientific and ethical standards. In particular, we would like to briefly address four of the major areas of interest concerning the FBI Lab.
1. Task Force Review of Past Cases
The FBI has been working closely with the Department of Justice Criminal Division and prosecutors for over a year to ensure that no pending or future prosecutions will be compromised and no defendant's right to a fair trial will be jeopardized by the problems identified in the Lab. We are confident that we can achieve this goal.
With respect to past cases, the FBI and DOJ are committed to continuing to review the cases of each of the 13 Lab employees criticized in the Inspector General's report which resulted in a conviction. We believe that this is the only way to ensure that no defendant's right to a fair trial was jeopardized. This review process is being conducted by a task force comprised of FBI and Department of Justice Criminal Division personnel.
The review process for past cases is being conducted as follows. The task force has identified the past cases involving the 13 Lab examiners who were criticized by the Inspector General. The task force will contact the contributing agency or the prosecuting office in each case to determine whether a conviction was obtained. In each case which resulted in a conviction, the task force will consult with the appropriate prosecuting authority to determine whether the Laboratory's work was material to the conviction. Where a determination is made that the work of Lab personnel was material to the conviction, the Laboratory's finding and any testimony offered by Lab personnel will be submitted to a qualified outside scientist for review. If the scientist's evaluation identifies a problem with the Lab's findings or testimony in a particular case, the FBI and DOJ will make all necessary disclosures to the prosecutor for his or her determination as to whether the disclosure must legally be made to the defense.
By adopting these procedures, the FBI will be able to fulfill its commitment to the public and to restore public confidence in the FBI's role in the criminal justice system.
2. Ability of FBI to Self-Police
In the wake of the FBI's handling of Mr. Whitehurst's allegations, questions have arisen about the FBI's ability to investigate itself. It must be remembered, however, that the FBI has successfully investigated many significant and sensitive allegations of misconduct by FBI employees. For example, the FBI successfully investigated and assisted in the prosecution of an FBI Special Agent who was convicted of killing a confidential informant; the FBI investigated its former Director for misuse of his position; and, most recently, the FBI investigated and arrested one of its own Special Agents for espionage (Special Agent Earl Edwin Pitts).
Unlike most police agencies, the FBI has not one, but two, independent watchdogs that provide oversight of the FBI's employees and activities. In addition to the FBI's Office of Professional Responsibility, the Department of Justice Office of Professional Responsibility also has oversight of the FBI in certain circumstances. Moreover, the Department of Justice Inspector General may request authority from the Attorney General to take responsibility for investigating a particular allegation under investigation by the FBI's OPR. Further, the FBI can recuse itself from a particular investigation, as it did in the case of the Lab.
The FBI remains committed to an effective internal integrity program. We are dedicating more resources to our own OPR and have hired a career prosecutor from the Department of Justice to head the office.
With respect to Mr. Whitehurst's allegations, we recognize that we did not adequately investigate all of those allegations internally. We are reviewing prior management failures to prevent such failures in the future. In that regard, we are confident that the changes we have and are continuing to implement in the Laboratory will ensure that there will be no recurrence of the problems identified in the Inspector General's investigation.
3. Treatment of FBI Laboratory Employees
After reviewing the Inspector General's January 21, 1997, draft report, the FBI made temporary personnel changes with respect to four Laboratory employees whose performance and conduct were severely criticized by the Inspector General. On January 24, 1997, one employee was reassigned within the Lab (Special Agent J. Thomas Thurman), two employees were temporarily reassigned to perform duties outside of the Lab (Special Agent Roger Martz and Special Agent David Williams), and Mr. Whitehurst was temporarily placed on administrative leave with pay.
The actions are temporary and each employee has retained his full pay and benefits pending review of the final report. These interim moves were necessary to ensure that the Laboratory operated as effectively and efficiently as possible pending the release of the Inspector General's final report.
The reason that Mr. Whitehurst was temporarily placed on administrative leave with pay was because of a failure to cooperate with a separate inquiry in addition to the findings of the Inspector General. It was not motivated by Mr. Whitehurst's protected whistle-blowing activities, but to avoid even the appearance of retaliation, the FBI has requested that a separate component of the Department of Justice (Justice Management Division) make any final personnel decisions with respect to Mr. Whitehurst and all of the Lab employees criticized by the Inspector General.
4. Recommendations and Changes by the Lab
The FBI has agreed to each of the major recommendations contained in the Inspector General's report and has invited the Inspector General to reinspect the Lab every six months until both he and the FBI are satisfied that all issues have been resolved. In addition, the FBI has adopted a number of measures to improve the quality of the Laboratory's work that exceed the recommendations of the Inspector General. The following list outlines some of the most significant recommendations to improve the Laboratory and describes some of the actions the FBI has taken to implement these recommendations.
Accreditation. In 1994, prior to the Inspector General's inquiry into the Laboratory, the FBI had begun the process of seeking accreditation by the American Society of Crime Laboratory Directors/ Laboratory Accreditation Board (ASCLD/LAB). In preparation for accreditation, the FBI Laboratory has undergone extensive internal audits and is taking follow-up action with respect to those audits. The Lab will also undergo an external, pre-accreditation review conducted by qualified inspectors under the aegis of the National Forensic Science Technical Center. The Laboratory anticipates that it will submit its formal application for accreditation to ASCLD/LAB by the end of this year.
Laboratory Restructuring. The FBI is in the process of restructuring the Explosives Unit in order to clarify its mission and to ensure that both supervisory personnel and examiners have appropriate scientific and technical training. In connection with that restructuring, the Lab has merged the Explosives Unit with a portion of the Materials Analysis Unit, to form the Materials and Devices Unit, in order to link two related scientific areas.
Examiner Reports. In order to prevent alteration of auxiliary examiner findings by the principal examiner in a case, the FBI now requires each examiner who analyzes evidence to prepare and sign a separate report. In addition, prior to release, reports must be reviewed by a unit chief or other qualified examiner for compliance with all applicable requirements. Lastly, all matches or identifications that could inculpate one or more suspects will be afforded a confirmatory review by a qualified peer which exceeds the aforementioned technical reviews that all reports undergo.
Quality Assurance. The FBI has created a Quality Assurance Unit to enhance the quality of all of the Lab's work. The FBI has also adopted an internal audit program, pursuant to which examiner reports will be subject to annual audits by the Quality Assurance Unit to confirm that all necessary documents are included in the case file. In addition, the FBI is establishing a separate audit group to review a representative sample of closed cases to ensure that all aspects of the Lab's Quality Assurance Plan are strictly followed.
Examiner Training. In addition to the specialized examiner training already provided for each unit of the Laboratory, the Laboratory is strengthening its uniform curriculum for examiner training to ensure common issues such as case documentation, report preparation, and examiner ethics are thoroughly addressed. The Lab is also improving its moot court training to provide examiners with guidance in recognizing the limits of an examiner's expertise, when and how it is appropriate for an examiner to act as a summary witness, and the general care and precision with which examiners' opinions must be stated.
New Assistant Director for Laboratory Division. The FBI has retained an executive search firm to seek a world-class scientist with strong credentials to run the Laboratory. Not only have we begun a search for a new director of the Lab, but we have also actively recruited and hired forensics experts to fill a number of key positions in the FBI Laboratory. Currently, the chiefs of both the Scientific Analysis Section and the Forensic Science Training and Research Center are scientists who hold Ph.D.'s in their respective fields. In addition, we have placed Ph.D.-level scientists into other key forensic positions, including the unit chiefs of both DNA units and the Materials and Devices Unit which has responsibility for metallurgy, as well as evidence from explosions. We are also in the process of creating positions for four Ph.D.-level scientists to report directly to the Assistant Director and advise him in matters relating to the fields of biology, chemistry, physics and materials, and computers and informatics. These individuals will be responsible for special problem solving, scientific and technical advancement, liaison with the relevant scientific communities, and most importantly, assuring the quality of the scientific practices in the Laboratory. In addition, over the last several years we have hired more than 100 new professional forensic examiners, many of whom hold advanced scientific degrees.
While we acknowledge the findings of the Inspector General, we also believe that they should not overshadow the outstanding work that the Laboratory has performed on thousands of cases over the past sixty years. This work has consistently withstood the test of court proceedings all over the country. Our successes transcend federal, state, and local criminal cases. In addition, the amount of evidence examined has varied. For example, the FBI Laboratory Latent Fingerprint Section positively identified a palm print from the bedroom of 12-year old Polly Klaas as having come from Richard Allen Davis, the man convicted of kidnapping and murdering her. On the other hand, more than 10,000 separate examinations of over 400 specimens were performed for an investigation into Peter Kevin Langan and Scott Stedeford's involvement in a rash of Midwest bank robberies. The two trials resulted in convictions of these defendants on all counts.
Since its creation, the FBI Laboratory has pioneered numerous advances in forensic technology and methods which have revolutionized the manner in which evidence can be analyzed. One of the most recent advances is the FBI Laboratory's development of the capability for mitochondrial DNA analysis. This capability enables the use of additional types of biological evidence, such as hair, bones, and teeth for forensic DNA analysis. Heretofore, this type of analysis was not possible -- only nuclear DNA obtained from body fluids and tissues could be analyzed. The FBI Lab is currently the only forensic Laboratory with this capability in the U.S.
This recent development has already been successful in assisting law enforcement agencies with the solution of violent crimes. In addition, this method has been used to exonerate a previously convicted individual. This individual was arrested, charged and convicted of a violent sexual assault which occurred in Wisconsin in 1989. A biological sample from the convicted offender was re-typed using mitochondrial DNA technology, and the results excluded him. Based on these results, the individual was subsequently released from prison.
The FBI Laboratory has also been at the forefront in developing a coordinated and effective response to the criminal use of nuclear, biological and chemical materials. We established the Hazardous Materials Response Unit to provide the capability to respond effectively to criminal actions or crime scenes involving these dangerous elements. The two foremost objectives of this unit are to ensure public safety considerations are addressed at these incidents and to maximize proper identification, collection and preservation of evidence. The Hazardous Materials Response Unit has responded four times in the last month to suspected chemical/biological terrorist events including the recent mailing of a biological sample to the B'nai B'rith International facility in Washington, D.C.
The FBI Laboratory also pioneered the development of automated forensic database systems, such as Drugfire and the Combined DNA Index System (CODIS). Drugfire is a computer system which matches cartridge cases and bullets to each other and to recovered firearms. CODIS links biological evidence recovered from a crime scene with evidence from other crime scenes and convicted sexual offenders. These systems were designed to enable state and local officials to associate evidence from multiple crimes and share information across jurisdictions with other laboratories. These national networks have already proven their worth. More than 200 successful links have been made by CODIS since 1991. Drugfire has enabled more than 1500 pairs of criminal investigations to be associated.
These links are extremely helpful in investigations and enable crimes to be solved. In 1996, the proprietor of a jewelry store was shot during a botched robbery in Dade County, Florida. Drugfire matched a cartridge case recovered from this scene to a second cartridge recovered from a shooting into an occupied dwelling near Fort Lauderdale. Witnesses of the later shooting knew the shooter's identity. Once Drugfire linked the two investigations, this suspect was identified by the jewelry store proprietor as the individual who shot him.
The FBI Laboratory has provided training to hundreds of forensic practitioners from state, local, and international law enforcement organizations who have and continue to be a credit to the profession. The courses we offer range from basic DNA analysis, to latent fingerprint identification, to analysis of computer evidence. During the past fiscal year, the FBI Laboratory presented 15 in-service classes to 448 FBI personnel and 22 scientific and technical schools to 612 state and local forensic scientists from through the U.S. In addition, we offer symposia which enable forensic practitioners from across the country to gather and exchange information and learn about the latest developments in this ever-growing and changing field. For example, this past year the FBI hosted an international trace evidence symposium attended by 203 scientists from around the United States and 18 other nations. In addition, the Laboratory has played an important role in assisting the emerging democracies of Eastern Europe and the former Soviet Union develop sound forensic capabilities.
The FBI has and continues to be a leader within the forensic community. We have led the effort to form technical working groups within the forensic science community to develop analytical/scientific standards in the forensic disciplines, including the DNA Advisory Board, Twigdam (DNA), Twigmat (materials) and Twigfast (fingerprints). These working groups have been formed to establish standards for all laboratories that perform analyses in these areas. The standards include the use of consistent protocols, the setting of minimum qualifications for examiners, and the development of training and quality assurance measures to ensure that the products from every laboratory are consistent. We are currently in the process of forming a working group in explosives (Twigbomb) and will be exploring a partnership with the newly formed National Forensics Center at the University of Central Florida to further this effort.
As we move into the next century, the types of forensic testing and technology which will become commonplace will continue to expand. For example, DNA testing, which is used with increasing frequency in criminal investigations, has only been in use for the past ten years. In order to perform effectively, the crime lab of the future will require sophisticated equipment and top-notch facilities. The FBI has recognized the need for updated laboratory facilities and began serious discussions to construct a new facility in 1994. Our existing facility remains virtually unchanged since its movement to the Hoover Building in 1973. The existing location of the FBI Laboratory suffers from severe space limitations, safety and health risks, and inadequate utility and environmental support. Consequently, the FBI has begun the process of constructing a new state-of-the-art, stand-alone facility at the FBI Academy in Quantico, Virginia. The first phase of construction will begin in October 1997 with the construction of the parking garage. Construction of the main building is projected to begin in the spring of 1998, with completion anticipated in 2000.
While we continue to remain proud of the accomplishments of our Laboratory, we must recognize that there is always room for improvement and that we must be committed to doing so. The Inspector General inquiry is culminating a period of critical self-examination by the Laboratory which began three years ago when we decided to open ourselves up to external scrutiny and pursue ASCLD/LAB accreditation. The Inspector General has clearly identified a number of past deficiencies, and we have and will continue to strengthen our quality assurance processes to ensure that these problems do not recur. The FBI is committed to making the required changes to ensure that the Laboratory remains a leader among forensic laboratories and that its work meets the rigors of both science and the law. We are confident that through this process we are emerging better and stronger than ever.