An Investigation of the Belated Production of Documents
in the Oklahoma City Bombing Case
March 19, 2002
Office of the Inspector General
EVENTS OF 2000-2001
In this chapter we explain how the belated documents came to be found. In the first section we set forth the chronology of events beginning in early 2000 through May 2001. The evidence shows that FBI officials were aware of a "potential" problem by the end of January 2001. By March 2001, Oklahoma City Division personnel knew that there were problems with the OKBOMB discovery and more senior OKBOMB personnel should have recognized the problem as well. Nonetheless, OKBOMB prosecutors, FBI Headquarters officials, and Department of Justice officials were not notified until May 7 and May 8, 2001, just a week before McVeigh's scheduled execution.
We conclude that senior FBI officials did not manage the review process appropriately. They waited far too long before notifying others, and they did not aggressively seek to resolve what they had been told was a potentially serious problem involving OKBOMB discovery. We analyze these officials' actions in this chapter.
We show a timeline of the chronology on the following page.
[ Image of an OKBOMB timeline of chronology is not available electronically.]
In 1998, after the conclusion of Nichols' trial, the FBI Task Force shipped the OKBOMB evidence, documents, and working files to the Oklahoma City Division. The materials were placed in a large warehouse for storage.
In early 2000, the OKBOMB case agent in the Oklahoma City Field Office became concerned that the warehouse used to store the OKBOMB materials was inadequate for long-term preservation because of the warehouse's insufficient heating and cooling systems. After speaking with his supervisors, the case agent sent an EC dated February 18, 2000, to FBI Headquarters requesting that an archivist examine the warehouse and make appropriate recommendations for long-term storage of the materials. In May 2000, FBI archivist William Shackelford and an employee from the National Archives visited Oklahoma City and examined the warehouse and storage of the OKBOMB materials. They agreed that the warehouse was unsuited for long-term preservation of the OKBOMB files. Shackelford told the OIG that beginning the archival process this early was unusual and that the process normally did not start until 25 years after a case was closed. Nonetheless, because of their concern about the long-term storage of OKBOMB materials, FBI personnel wanted to proceed with the preservation process.
Because Shackelford did not consider the OKBOMB archival process to be a priority, he did little on the matter for six months until December 2000. By EC dated December 20, 2000, Shackelford informed all FBI Field Offices that they were authorized to destroy copies of OKBOMB material that remained in the Auxiliary Office's files. The EC required that before destruction could take place, the field office had to ensure that the documents had been uploaded into ACS. The EC stated that original documents, material that had not been uploaded, and documents that had been uploaded but which had original writing on them were not to be destroyed. The items that could not be destroyed were to be itemized and the listing sent to Oklahoma City. We show the EC at Exhibit 12 at p. A-40.
Shackelford told the OIG that he initiated the destruction process because he had received inquiries from the field asking whether they could destroy copies of documents that had already been sent to the OKBOMB Task Force. Shackelford noted that although the archival process was being initiated earlier than usual, destruction was a standard process, and it was initiated consistent with the FBI's administrative manual.
The EC was directed to the Administrative Officers in all field offices. Although four FBI Headquarters supervisors initialed the EC as approving it, including FBI Deputy Director Thomas Pickard, none of the supervisors were from Oklahoma City, and none were OKBOMB supervisors. Shackelford said that he consulted with administrative personnel in Oklahoma City regarding the EC and that they added language requiring the field offices to send a list of documents to Oklahoma City rather than the actual documents. The OKBOMB FBI supervisors, prosecutors, and document managers, as well as the Oklahoma City Field Office investigative supervisors, told the OIG they were not aware of this December 20, 2000, EC.
In late January 2001, two field offices, Miami and Birmingham, sent a few boxes of OKBOMB material to the Oklahoma City Field Office. The Oklahoma City File Supervisor notified Financial Analyst Linda Vernon, who handled discovery during OKBOMB, and Peggy Richmond, an Oklahoma City Division Intelligence Research Specialist, that OKBOMB material had arrived and needed to be handled. Both Richmond and Vernon had dealt extensively with OKBOMB documents during the investigation and trial. Richmond and Vernon told the OIG that they were unaware of the December 20, 2000, EC, and this was the first time they had been informed that the field offices were sending in OKBOMB material.58 Richmond said that she opened a box from one office and saw inside what appeared to be original 1As. A box from the other field office also contained original 1As. Richmond said she was immediately concerned because she did not believe the field offices should have retained any 1As. Vernon told the OIG that she did not recognize the 1As from her prior work organizing the OKBOMB discovery and thought that there was a "chance" that the 1As had never been disclosed in discovery.
Vernon and Richmond told the Oklahoma City Supervisory Administrative Specialist (SAS) that 1As had come in that they had possibly not seen before. The SAS instructed Vernon and Richmond to send the originals back to the field offices.59 Vernon and Richmond said that they were concerned about the 1As and concerned about the instruction to send the 1As back to the field offices so they decided to contact the senior OKBOMB officials.
On January 29, 2001, Vernon sent an e-mail to Mark White, then a Supervisory Special Agent in the FBI Dallas, Texas, Field Office. White had previously been a Supervisory Special Agent on OKBOMB and had dealt with the OKBOMB discovery process.60 Vernon stated in the e-mail:
Headquarters has sent an EC out to all offices sayings [sic] it's okay to send Okbomb files to OKC. So the files are coming back with guess what Original 1As that I have never seen. 1As that all offices were suppose [sic] have sent in back in December 1996 or early 1997.… My concern is this is a big Discovery problem since we told the defense they have seen everything….
Also Birmingham has the Time line Indexed in there [sic] file. Which also can up [sic] as a Discovery concern too. I don't think this will be a problem but I thought it was weird they had copies of it. I figure you can tell Danny [Defenbaugh] about this little problem. I have not contacted Sean [Connelly] about this.
So what do you think would be best way to handle this situation?
This e-mail was also copied to William Teater, the supervisor of the Oklahoma City Division Counterterrorism Squad. Teater had also worked on the OKBOMB investigation but not as a supervisor.
White told the OIG that he spoke with Vernon and then with Danny Defenbaugh, who had been the Inspector in Charge of OKBOMB and who was currently the SAC of the FBI Dallas Field Office and White's supervisor. After speaking with Defenbaugh and relaying what Vernon had told him, White replied by e-mail to Vernon and Teater on January 29, 2001. White said that Defenbaugh agreed with White's assessment that the files should not be sent back to the field. In the e-mail, White instructed Vernon, Richmond, and Teater not to send any material back to the field offices and to check if there were duplicates of the 1As in the OKBOMB files. White wrote:
In the near future, when it appears all Divisions who are going to send files into Oklahoma City have done so, SAC Defenbaugh and myself will come up to Oklahoma City and sit down with all of you, see what you have received and decide what to do to proceed. The NCIC checks and things like that are not of any concern … but photo's [sic] and other reports could be a big problem…
Please keep me informed of the status of this. As I stated once the flow of reports/1A's slow down to where it appears all offices have forwarded their info, then we will come to visit.
On January 30, 2001, Richmond responded to White by e-mail:
So far we only have 3 offices in and we will handle per your instructions. We will send you a weekly update to let you know how things are going[.]
Richmond told the OIG that she was concerned that other offices might still be in possession of OKBOMB material that had not been forwarded to the Task Force. She said that she also was concerned that some office might destroy documents, as they had been authorized to do, before she and Vernon had an opportunity to examine them. Therefore, in an effort to get a complete understanding of the magnitude of the potential problem, Richmond asked Teater for permission to send out an FBI-wide EC requesting offices not to destroy OKBOMB documents and instructing them to send material to the Oklahoma City Division. Teater approved the EC, although he requested that she check with Shackelford to ensure that he had no objection. Shackelford did not have any objections, but he told Richmond that she might be deluged with materials.
On January 30, 2001, Richmond sent an EC to all field offices instructing them to send all OKBOMB material to Oklahoma City.
Due to review of files received thus far and the delicate nature of the case, Oklahoma City desires to evaluate files prior to their being destroyed. Oklahoma City is requesting complete files be furnished and Oklahoma City will handle destruction.
The EC was sent to the attention of the Administrative Officers in all the field offices with a notation that it was for immediate action.61 Richmond said she sent it to the Administrative Officers because those were the individuals to whom Shackelford sent his EC. Because Richmond sent the EC to the Administrative Officers and because the file number on the EC was an administrative file number, the EC was handled in the field by administrative personnel rather than investigative personnel. (We show this EC at Exhibit 13 at p. A-44.)
White told the OIG that at this point he was not particularly concerned about the documents. He said that he recalled Vernon talking to him about one original 1A that contained interview notes, which did not concern him because interview notes were not discoverable. He said that he also assumed the other material consisted of photographs although he acknowledged that Vernon did not identify them all as such. Even though his e-mail to Vernon noted that photographs could be a "big problem," White told the OIG that he was not particularly concerned about photographs because he assumed that they were probably photographs that OKBOMB had sent to the field offices. White also told the OIG that he was not concerned because he recalled the field offices had certified that everything had been sent to the Task Force prior to the defendants' trials. White said he was not aware that Richmond had sent the January 30, 2001, EC.
Teater told the OIG that he was not consulted about Shackelford's December 20, 2000, EC and did not see it until mid-January. With respect to Vernon's January 29 e-mail, Teater said that in late January or early February 2001, when he returned from a business trip, Vernon told him that she had sent him an e-mail about something that had come up, and in his absence she had contacted White. Teater told the OIG that a "flag went up," but he believed that based on the systems used in OKBOMB that they would have the material in question. He also said that his main concern was ensuring that White and Defenbaugh were aware of the problem.
Defenbaugh also said that he had not been consulted about the December 20, 2000, EC authorizing field offices to destroy documents and instructing the field to send a listing of all OKBOMB material to Oklahoma City.62 He stated that he also did not review the contents of Richmond's January 30 EC but he was aware of it and agreed with the idea behind it.
Defenbaugh recalled White telling him that Vernon had found some agent interview notes in one of the boxes a field office had sent. He said that he was not concerned because interview notes were not discoverable items. When asked whether he gave White any instructions as to how to handle the problem, Defenbaugh said:
No, because it's archival process. I wasn't gonna worry about it, it didn't have anything to do with me.
* * *
It's the Oklahoma City Division, in fact, if anything, … I really [did] not have anything to do with it, they didn't give me a copy of it so they probably thought that, you know, this is kind of, this is all administrative to take care of these documents. It wouldn't have anything to do with me.
Defenbaugh, however, also said that he told White that "they better go through every bit of those items to make sure we don't have a problem there." When asked whether he gave anyone a timetable to complete the review, Defenbaugh stated that he had not.
On February 2, 2001, White responded to Richmond's January 30 e-mail notifying him that three offices had responded:
Great! When it appears you have gotten sent to you most if not all what you are going to get, we can discuss further any problems, such as the 1A's. SAC Defenbaugh and myself may end up coming to OKC to sit down with you, look at the material, and determine how we will proceed.
(We show this series of e-mails among White, Vernon, and Richmond at Exhibit 14 at p. A-47.) White told the OIG that he assumed that they were not going to get in much more material because only three offices had sent material and other offices had responded that they did not have any OKBOMB material.63
In response to Richmond's EC of January 30, 2001, boxes of field office material arrived in Oklahoma City. Richmond and Vernon established a process to review the items in order to determine whether they had been disclosed to the defense. With respect to each item that fit into the categories of discoverable material (FD-302s, inserts, and most of the 1A material), Richmond, Vernon, and a few other support personnel checked ZyIndex, ACS and, to a limited extent, the discovery databases. Although Vernon had created a discovery database to track the documents disclosed to the defense, the database could not be easily used for these purposes because the database primarily relied on the OKBOMB serial number to track items, and the documents sent from the field offices did not have the OKBOMB serial numbers on them. Furthermore, the discovery databases contained only limited descriptive information about the documents turned over to the defense. Without an OKBOMB serial number on the document, the only practical way to determine whether the defense had received the document was to find the document and a corresponding serial number in other OKBOMB databases.
The easiest method to find FD-302s and inserts was to use ZyIndex. The searcher, usually Richmond, entered key information from the questioned document, such as the name of the author or even phrases from the document itself. If there was a "hit," Richmond would check the document in the database to determine if it matched the questioned document. If there were no hits, the material was put in a "problem" box. ACS was used to track 1As, 1Bs, and 1Cs.64 Vernon dealt with the problem box and did a final search, usually using her discovery databases, to try to find the item. Vernon and Richmond told us that several different databases and employees were used because they wanted to try different ways of describing a document to see if it could be found. A flowchart of this process is shown on the following page.
[ Flowchart of the Process Used in 2001 to Identify FD-302s and Inserts Not Previously Disclosed to OKBOMB Defendants is not available electronically.]
Vernon and Richmond told the OIG that they continued this process through February 2001. By the end of February, 31 field offices had responded to Richmond's EC by sending OKBOMB materials to Oklahoma City.
Vernon told the OIG that she knew they definitely had a problem in February when they had the first 1A that could not be located in the OKBOMB databases even after repeated attempts to locate it. When asked whether in February she realized the depth of the problem, Vernon stated:
At the very beginning I'm thinking, there's a potential of a problem. As I, we're going through this more, my potential factor is creeping higher and higher. I feel like the thermometer going up.
Teater told the OIG he inquired regularly as to the status of the project, and Richmond described Teater as supportive, stating that he checked to see if they needed more resources. Teater said that he asked Vernon and Richmond if they found anything that indicated that perpetrators other than McVeigh and Nichols were involved. He said that when Richmond told him no and told him what they were finding, he was less concerned because it appeared the information was not new information but related to information the Task Force had previously seen, such as John Doe # 2 material.65 Teater acknowledged, however, that he recognized that it was something of a problem that Task Force personnel had not seen the material before, and it was information that had to be disclosed to defense counsel. When asked what steps he took to deal with the problem, Teater told the OIG that Vernon and Richmond spoke with White and Defenbaugh periodically. They were told that White and Defenbaugh would come to Oklahoma City and review the materials after all the divisions that were going to send files had done so. Although vague on the details, Teater thought he had some conversation with his "front office," most likely Oklahoma City Division ASAC David Cid, to the effect that Richmond was busy searching through materials that OKBOMB personnel had not seen before. Richmond told the OIG that it was her impression that Teater believed White was handling the problem.
Defenbaugh did not take any steps to actively manage the review process in February. Defenbaugh said he did not recall even receiving information about the status of the review project in February. The OIG asked Defenbaugh:
Q: Why didn't you call out to, or get Mark [White] to call out to find out how things were going between …
A: It wasn't his job or my job. It was Oklahoma City's job. It was still the archival process there.
White also said that he was not involved in the project during February and that he did not learn anything more about the problem until March. We asked White what steps he took to resolve the potential problem that discoverable materials had not been properly disclosed to the defendants. White said that he took no specific action other than letting Richmond and Vernon's review process run its course. White said that he did not set any deadlines for completing the file review because it was not his place to set deadlines. He added that he knew Vernon and Richmond were responsible people, and they would get it taken care of immediately. White told the OIG that the fact that Richmond had e-mailed him, rather than Teater e-mailing Defenbaugh, led him to believe the situation was not particularly serious. He said that if it was a major issue then Teater should have notified Defenbaugh. White said that he was acting more as a "consultant" to the OKBOMB case and that it was Teater's responsibility to determine the seriousness of the problem.
In our second interview with White, he again asserted that he was not in the chain of command for what he considered to be an administrative issue and therefore had no responsibility for supervising it, for making decisions, or for ensuring that it was completed timely. White argued that the individuals who should have been responsible for supervising the project were Oklahoma City personnel - the OKBOMB case agent, Teater, and Oklahoma City SAC Richard Marquise - as well as Defenbaugh.66
Richmond, however, told the OIG that she spoke with White a couple of times during February. He asked her if she was finding any information in the documents that was different than what they had seen previously. Richmond said that she told him no but that they were not able to establish that they had disclosed the documents. She said that she did not press the issue with White because she was aware that he and Defenbaugh were scheduled to travel to Oklahoma City early in March. She said that she thought they would be able to personally view the documents during that visit and take appropriate action.
Vernon, Richmond, and Teater told the OIG that they expected White and Defenbaugh to examine the problem more thoroughly in March 2001 when White and Defenbaugh were expected to come to Oklahoma City for a conference relating to OKBOMB. On March 7, 2001, White and Defenbaugh arrived in Oklahoma City.67 While the meetings generally dealt with the FBI's plan to try to interview McVeigh, White and Defenbaugh discussed the problem documents with Vernon and Richmond.
Richmond and Vernon showed White boxes of material they had received from the field offices. By March 7, 31 field offices had responded by sending files to Oklahoma City. White said that he was shocked at the number of boxes that had come in because he thought the field offices would not have kept so much OKBOMB materials. White said he recalled Richmond and Vernon showing him a half-filled box of material, primarily consisting of material from the desk of Larry Tongate, a Kansas City agent who had worked extensively on OKBOMB. White told the OIG that he was not alarmed by seeing the "problem box" because he did not believe original material would be in Tongate's desk. White said Vernon and Richmond told him that they were continuing to do research and that they still had not resolved the question of whether the material had been disclosed to the defense. White acknowledged, however, knowing that they had done extensive work already and that he did not know or inquire what other research was going to be done. He also did not inquire as to how long it was going to take to do the additional research. White told the OIG that after this he was "back out of the picture again. I'm in, I'm out, I'm in, I'm out." White said that he showed Defenbaugh the box of materials before they left Oklahoma City, and then "I'm back out again."
White said that he did not speak to Teater about the problem documents while he was in Oklahoma City because Teater was out of town. White also did not say anything to the OKBOMB prosecutor, Sean Connelly, even though he spoke with Connelly both before and after the conference, because "it wasn't my place to do that."
Vernon told the OIG she showed White three boxes of material: a box of evidence, a box of items to be rechecked, and a "problem box" full of documents. The "problem box" contained items that she and the other searchers had already spent considerable time and effort trying to find in the OKBOMB files, without success. Vernon said that while there were some materials from Tongate in that box, most of the material was from other locations. Vernon told the OIG that she knew by that time that they had spent a considerable amount of time researching most of the documents in the "problem box" without success. She said that she told White about their efforts and that while it was possible they might find some of the items at some point, she did not believe that it was likely.
Neither Richmond nor Vernon recalled showing Defenbaugh the "problem box," and they believed that he had returned to Dallas early. Defenbaugh, however, told the OIG that he recalled seeing a half-filled box of "problem" material. He also said that Richmond or Vernon told him that they were still doing research on the material. Defenbaugh said that he was not surprised that some items had not been found because they had had continual problems throughout the OKBOMB investigation trying to locate items in the Task Force files.68 On the other hand, Defenbaugh did acknowledge being somewhat concerned about the documents. We asked Defenbaugh:
Q: Did this cause you any concern when she gave you this information?
A: Yes. I was, we could have a problem here.
Q: And what instructions did you give her?
A: Try to look for everything as fast as she possibly could and to let me know.
Q: Did you set any timetable for her, to report back to you at a certain date?
A: No, I did not.
Defenbaugh also said that he did not notify anyone about the problem at this time.
And the last thing I want[ed] to do and I hope that anybody could appreciate that, is cry wolf, and then, well it doesn't matter, it didn't have to be turned over anyway. So, [I] wanted to make sure that there was a full complete and thorough search before, and that I reviewed those items and Mark and I reviewed them before I made any advisements that, wait we got a problem here.
Both Vernon and Richmond said that nothing was resolved following the March meeting. They believed that White would come back to Oklahoma City at some later date to conduct a more thorough review, and they would continue their review of the documents until they had finished examining everything the field offices sent.
Sometime after the March conference, Richmond learned that, despite her January 30, 2001, EC, field offices continued to retain OKBOMB materials, including 1Bs.69 Therefore, on March 15, 2001, Richmond, with Teater's approval, sent another EC for immediate action to the Administrative Officers requesting that all OKBOMB materials be sent to Oklahoma City.
Oklahoma City by teletype dated 11/14/96, and Director teletpye [sic] dated 11/15/96, requested all Field Offices and Legats to forward all documents and evidence pertaining to this case to the OKBOMB Command Post and on 1/30/01, Oklahoma City again requested all files, etc, relative to the OKBOMB investigation … be forwarded to Oklahoma City. Review of files received thus far indicates some offices are still in possession of 1A's, 1B's, 1C's or Elsur material.
Due to extremely sensitive nature of this case and the fact that Oklahoma City is receiving evidence that should have been forwarded to this office in 1996, it is requested that all offices immediately conduct a search of your offices for any additional documents, sub files, etc., relating to 174A-OC-56120 that may have been previously missed. Please forward any 1A's, 1B's, 1C's Elsur, or 56120 that may have been previously missed. Please forward any 1A's, 1B's, 1C's, Elsur, or ANY OTHER MATERIAL still in your possession pertaining to OKBOMB to the Oklahoma City Division ….
It is also requested that after this search is conducted, Oklahoma City be furnished name of individual in your office responsible for certifying that all documentation has been transmitted to Oklahoma City.
(Italics added; underline in original.) (We show this EC at Exhibit 15 at p. A-50.)
Richmond said that after sending the March 15 EC she spoke with White by telephone to tell him that more "stuff" was coming in. She said that White asked her again if there was anything that would make a difference to the case but that he did not offer advice, guidance, or instructions. White told Richmond that he would come back to Oklahoma City and review the materials again at some point. Richmond told the OIG that Oklahoma City personnel always contacted White; White did not initiate contact with them. Richmond said that it was her impression that the supervisors were not "overly concerned" about the situation. She thought that Teater was not concerned because he believed the same as she did, that Defenbaugh and White were handling the situation. Richmond told the OIG that in her opinion, in March they had examined the documents sufficiently to indicate they did have a problem and that the documents likely had not been disclosed to the defense.
Field offices responded to Richmond's March 15 EC by sending in more material. Indeed, three offices reported to the OIG that even though they had sent material to Oklahoma City in response to the January 30, 2001, EC, they found additional material when they looked again in response to the March 15, 2001, EC.
In addition to White, Defenbaugh, and Teater, the SAC of the Oklahoma City Division, Richard Marquise, also received some information regarding Vernon and Richmond's work.70 In the Oklahoma City Division, supervisors sent weekly summaries of their squads' activities to Marquise. In a March e-mail summarizing the week of March 12-16, Teater noted:
Richmond advised all but six offices have sent their remaining OKBOMB files to OC. The six offices are preparing to ship their records to OC in the very near future. Hundreds of items have been cross-checked against what is in file however, there are many items which the status is yet to be determined.
In a March 23, 2001, e-mail, Teater informed Marquise:
OKBOMB files are now in from each Field Office which re-re-checked their files for serials, 1-a, 1-b, 1-c. The support employees have completed a considerable amount of work but there are numerous items of concern which are being checked thru the various data bases. Another EC was sent to all offices asking them to check in a number of places to ensure everything has been sent.
Marquise told the OIG, however, that he did not learn about the problem with the OKBOMB documents until May 7, 2001. When showed the March e-mails from Teater, Marquise acknowledged that he probably read them. He stated that he obviously did not appreciate the significance of what Teater was discussing, and he therefore took no action in response. He said that it was possible that he thought that Teater was referring to the only OKBOMB project of which he was aware, getting OKBOMB material to the Oklahoma City District Attorney.71 In his written response following a review of the draft report, Marquise also stated that the e-mails should be put into context, specifically that the portions referenced were part of lengthy e-mails sent by Teater describing his squad's activities. Marquise noted that the e-mails did not make any reference to discovery or that information was being received in Oklahoma City that had not been disclosed to the defense.
Oklahoma City ASAC David Cid also received Teater's e-mails.72 Cid told the OIG that he discussed the OKBOMB documents project with both Teater and Richmond at various times but that he believed they were working on finding documents for the District Attorney. Cid stated that "no one ever framed the issue in terms of, we have a problem with discovery in the original trial. And I never came to grips with that as, as an issue."
The OIG investigation disclosed that FBI Headquarters also received some indication that there was a problem with the OKBOMB documents as early as March 2001. Supervisory Special Agent Keith Moses, who was assigned to the Domestic Terrorism Operations Unit in FBI Headquarters, had questioned White and Teater by e-mail regarding allegations made by a journalist that the FBI had not adequately considered evidence of foreign involvement in the Oklahoma City bombing. White sent an e-mail response to Moses providing background information about the journalist, and Teater followed up in a March 26, 2001, e-mail to Moses and White agreeing with White's response. Teater also wrote:
Also, FYI all analysts and support employees, familiar with OKBOMB, are busy providing support to the state prosecution team and handling the receiving of reporting and other items such as 1as, 1bs, 1cs, etc. not previously forwarded to OC even though this was requested on several occasions.
Moses told the OIG that he "just missed" the reference to the OKBOMB documents. He said that when he responded to the e-mail that his focus was on the issue regarding the journalist. He said that it was entirely possible that he might not have even read the last part of the email that said "not previously forwarded." He explained that often he is so busy responding to different e-mails and correspondence that he quickly reads the message to determine the substance and then responds. He said that if he had fully read and digested the contents of the e-mail that the logical question for him to ask would have been, "what documents are you talking about?"
Moses said that he had no discussions with White, Teater, or Defenbaugh concerning OKBOMB documents. Although he said that he was vaguely aware that administrative personnel were working on some project, he thought the project was related to the state prosecution of Nichols, and he said he was totally unaware of any problem with the OKBOMB documents.
During March, Vernon reported issues about the documents to White, who reported them to Defenbaugh. In a March 29, 2001, e-mail, White advised Defenbaugh:
Linda Vernon advised Buffalo Division, as part of what they recently sent, included FD-302's from Rose Woods, Carl LeBron and William McVeigh, which Linda states were not in the OKBOMB file. She is continuing to try and research this issue. She advised she doesn't think the contents have much information of importance, but because of who they are, not having them prior to this, and not having provided them the attorney's [sic] could be a problem.
White told the OIG that this e-mail was probably the result of a telephone call from Vernon. He did not recall Defenbaugh's response to the e-mail. In our initial interview, White said that because of the names of the individuals involved that he recognized that it was serious and "red flags should be flying at this point." When we asked what he did in response, White said he passed the information to Defenbaugh and "from this point again it becomes, I'm in, I'm passing information, I'm back out." In our second interview with White, however, he said that he construed Vernon as meaning that she was concerned about only three documents that might not have been disclosed. White said, "She's right now, almost batting 100, and I'm thinking she's going to finish batting 100 here." Accordingly, he said he was not concerned about the timetable.73
White also said that the e-mail made him think that he needed to have Dallas Field Office personnel check to see if Dallas had any OKBOMB files. White said that even though Dallas had previously sent material into Oklahoma City in response to Richmond's ECs, when they searched again they found three more files on his squad's rotor. White said that he did not hear anything more until April 30, 2001, when Richmond advised him that their review was complete.
Defenbaugh said that he did not recall his reaction to White's e-mail, but he did not believe that he set any timetable for completion of the project. He said that he did not want to "harass" Vernon and Richmond because they were very diligent workers. In a second interview, Defenbaugh stated that it was Oklahoma City's responsibility to supervise the project because the files were in Oklahoma City, it was an archival project, and Oklahoma City had started the process. Defenbaugh further stated that his responsibility only "kicked in" when it was clear that an FD-302 had not been timely disclosed. Because he was told by Richmond and Vernon that they were continuing to research the documents, he did not feel that the issue was his responsibility. Defenbaugh acknowledged, however, that he probably should have called Marquise after receiving White's March 29 e-mail. He said that he did not know why he did not make the call. Defenbaugh said that he did not recall receiving any further information about the review project until the end of April.
Teater continued to inform Marquise of the status of the effort to review the OKBOMB material. In an April 6, 2001, e-mail, Teater stated:
IRS P. Richmond advised they should finish reviewing all material regarding OKBOMB by the end of next week at which time she will advise the nature of 302s, inserts, Elsur material, etc. which was never forwarded to OC. A report will be made and forwarded to SAC Defenbaugh-DL. SAC, OC will be briefed before the report is forwarded to DL.
Teater's e-mail dated April 20, 2001, stated:
OKBOMB documents will be further reviewed in the upcoming week to determine which documents OC has not seen.
Teater's e-mail dated April 27, 2001, noted yet another problem:
OKBOMB review of records received from other Field Offices continues. Many of the files sent to OC have classified documents in files not properly marked. The classified documents are being pulled and placed in a classified file as was done in the past and as per procedure.
Marquise told the OIG that, like the other e-mails, he did not recall reading them, did not recognize their significance, and did nothing in response.
Q: Do you think that this first line [of the April 6, 2001, e-mail] should have caught your attention?As reflected in the e-mails, during April 2001, Richmond, Vernon, and various other personnel continued their analysis of the materials the field offices were sending. The analysis was completed at the end of April.
A: Yeah. It probably should have. And again, obviously hindsight's 20/20.
A: In looking at that, I may have focused only on that last sentence. I'll be briefed before anything sent to, to Dallas. I never got a briefing. And that was a month or so before I found out the conversation that kind of, as I said even, even when Bill [Teater] called me, uh, from De--, from, uh, Charlotte on the 7th of May, it didn't really register to me until, and, and maybe that's my fault. I got a lot of things going on here and there's lots of supervisors that ask for your attention and ask for things. And, that's no excuse. I mean, obviously if I'm, I got a responsibility to do things. I only wish it had been framed.
* * *
But it was never framed for me at the beginning saying this is what we're doing and this is what we're getting. And obviously it didn't click, didn't click with me.74
White e-mailed Defenbaugh on April 30, 2001:
I spoke to Peggy Richmond this morning. She advised their review was completed. They have one full and one half full legal size box, and one full Xerox box of FD-302's and inserts. These are documents that cannot be matched against anything they have found. I asked Peggy about the Rose Woods, Bill McVeigh FD-302's and she stated she did not think the information was matched with other documents. (I do not know what these reports contain)
Peggy has asked for us to go to Oklahoma City to review the documents. I know you are out of town this week. I am in Charlotte next week. When do you want to do this?
White told the OIG that he did not recall Defenbaugh's response and that Defenbaugh was probably out of town when he sent the e-mail.
Richmond recalled calling White because she was concerned about McVeigh's approaching execution date of May 16 and she thought that White and Defenbaugh needed to review the documents soon. She called White to see when he would come back to Oklahoma City. She recalled there being some issue that prevented him from traveling to Oklahoma City at that time. Richmond said she asked Teater if they should just send the documents to Dallas, and he agreed.
Teater also told the OIG that he expected White and Defenbaugh to return to Oklahoma City to review the documents. He said that Richmond and Vernon had told him that White and Defenbaugh would return after all the field offices had responded and sent in their files. By the end of April, Teater said he became concerned about the approaching execution date. He called White to find out when they were returning to deal with the OKBOMB material. According to Teater, White said they would not be coming back, and Teater told White that they would send the material to Dallas. White responded that he would be at a training conference but that his "relief" would get the documents to Defenbaugh. Teater instructed Richmond and Vernon to make copies of the documents and send them to Dallas.
White said that he did not recall specifically talking to Teater but agreed that it would have been a "logical thing" for Teater to have called him.
The documents arrived in Dallas on Monday, May 7, 2001. Teater's e-mail to Marquise summarizing the week of May 6 - 12, 2001, stated:
OKBOMB documents are being copied and sent to SAC Defenbaugh-DL for review. These are documents which never reached OC or DN command posts despite at least 6 requests for same. Two support employees are working authorized overtime this evening and tomorrow to complete the review and copying process and forward same by 5PM Saturday to SAC-DL.
Defenbaugh said that he reviewed the documents when they arrived in Dallas on May 7 and quickly saw that they contained FD-302s, which were to have been turned over during discovery. He said he realized at that point that they had a problem.
On the same day, he contacted White, who was in Charlotte, North Carolina, for a conference. Late that evening, White contacted James Jarboe, the FBI Headquarters Domestic Terrorism Section Chief, who was at the same conference, and told him that Defenbaugh had received two to three boxes of documents related to the OKBOMB investigation that may not have been turned over to the defense. Other than the e-mail to Moses in late March, this was the first notification to FBI Headquarters of the problem. Jarboe told the OIG that White said Defenbaugh was so upset that he was almost ill. Jarboe said that he had the impression that Defenbaugh had just found out about the problem, but Jarboe said he did not ask any questions at the time about who knew what and when.
Late in the evening of May 7, 2001, Defenbaugh contacted Dale Watson, Assistant Director for the FBI's Counterterrorism Division, and briefly described the issue. Watson said that it was his sense from this conversation that it was not definite that the defense did not have the documents. However, he said that he realized at the time that it would be a very big problem if in fact there were documents that should have been turned over to the defense that never had been turned over. Jarboe said that he also telephoned Watson to inform him of the possible problem with the documents.
Defenbaugh told the OIG that he had not notified anyone before this point because he was concerned about leaks of information to the public. He said that they had experienced numerous leaks during the OKBOMB investigation and that he did not want to let anything out, "cry wolf," and then have the information about the documents leaked. He also said that he waited to notify anyone about the potential problem because he wanted to know the full extent of it. Defenbaugh said, "I wanted to be thorough and have everything and give the answer to somebody, here's the problem, here is how many problems you got." When we questioned Defenbaugh further about whether he should have notified OKBOMB prosecutor Sean Connelly earlier, Defenbaugh stated:
No, I wasn't going to blow the whistle. If I, if I talked to prosecutors at that point, that would have been blowing the whistle and saying you have a problem, and I may not have had a problem. I didn't know I had a problem. And I sure didn't have all the answers. Let's think about this for a minute. Let's go back to January 29th and let's do another scenario and let's say that I called Sean [Connelly]. All right, and said, I found one agent interview note. I think we might have a problem here. What's gonna happen? What would have happened? You don't think that he would have called this building here [Department of Justice] that we're sitting in right now? And I guarantee you right now that that would have gotten to the press. And let's say then that it wasn't a problem. It was only the agent interview notes and out of all these hundreds of boxes everybody did right, and there was only duplicates and that's what they were supposed to have, and we found one agent interview note that wasn't supposed to be handed over anyway. Would that make me look like a fool? Yes, is the answer to that. So that, that's my, my thought on this.
Defenbaugh also said that he did not believe that there was any delay in the process because Richmond and Vernon were working diligently. However, at a different point in the OIG's interview, Defenbaugh stated:
Yeah, I should have sped it up, no question about that. However, I wasn't gonna let him get executed either…. I wanted to make sure that we were right. If I was gonna blow the whistle and stop the juice from flowing, I was gonna make sure that we were right and I was thorough. And we were thorough as far as the items we got, as we could possibly be, that was my reasoning.
On Tuesday, May 8, 2001, a conference call was held with Defenbaugh, Teater, Section Chief Jarboe, and attorneys from the FBI Office of General Counsel to discuss the problem. Defenbaugh told them that over 700 documents were at issue, and he described the general nature of the documents. The participants did not discuss when Defenbaugh learned of the problem.
Defenbaugh also contacted Sean Connelly and informed him of the problem. Connelly, an Assistant United States Attorney in Denver, Colorado, had been an OKBOMB trial prosecutor and had continued to work on the appellate issues. Connelly said that Defenbaugh's telephone call was the first he had heard of the archival process and the first mention that problems had developed with the OKBOMB discovery.
Defenbaugh drafted a letter to Connelly stressing that as the OKBOMB Task Force Inspector in Charge he had repeatedly sought and received assurances from the field that all OKBOMB information had been forwarded from the field prior to the defendants' trials. (See Exhibit 16 at p. A-53.) Defenbaugh also informed Connelly that he and his staff had reviewed every problem document sent by Vernon and Richmond to Dallas and had concluded that none of them contained exculpatory information.
After Defenbaugh called Connelly, Connelly called the Department of Justice and left a message for Johnny Sutton, an Associate Deputy Attorney General. The first Department official who Connelly was able to reach was Anthony Murry, a senior attorney in the Criminal Division's Terrorism and Violent Crime Section (TVCS). Connelly informed Murry of the problem, and Murry told his supervisor, James Reynolds, Chief of TVCS. When Connelly finally was able to reach Sutton, he told Sutton that he wanted to notify the defense attorneys immediately. Sutton called Connelly back approximately five minutes later and authorized Connelly to contact the defense attorneys. Connelly immediately called the defense attorneys to inform them about the discovery of the OKBOMB materials.
Within the Department, the information was being passed to senior officials, and eventually to Acting Deputy Attorney General Robert Mueller and staff in the Office of the Attorney General. On May 8, Sutton informed Mueller's Chief of Staff. Mueller learned about the issue during the afternoon of Tuesday, May 8. Mueller said, however, that he did not appreciate about the significance of the belated documents issue until May 10 and that on May 10 he received a copy of the May 9 letter (discussed in the next section) from Connelly to defense counsel that specifically described the documents.
The news was also working its way through the FBI's chain of command. On Tuesday afternoon, Watson informed Deputy Director Thomas Pickard. Watson said that he told Pickard what he knew at that point - that Defenbaugh had not gone through all of the documents but he had seen some FD-302s that should have been, but were not, disclosed to the defense.75 He also told Pickard that Connelly was going to inform the defense counsel. Pickard recalled that Watson did not provide specific information. He recalled being made aware of a "discovery issue" and being told that they were not sure at that point how serious it was. Pickard said that Watson indicated that he would provide an "update" with more information as soon as possible. Pickard told the OIG that based on that information he saw no need at that point to inform FBI Director Freeh, who was out of the office.
Connelly and various Department officials spent Wednesday drafting Connelly's letter to the defense counsel and organizing the documents. Various individuals participating in the project said that they wanted to get the materials to the defense that day.
At the end of the day on May 9, Connelly sent over 700 documents to the defense attorneys. In a cover letter Connelly advised the defense attorneys that he had only learned of the problem on May 8. He, like Defenbaugh, also pointed out that the field divisions had been requested to forward all OKBOMB materials to Oklahoma prior to the trial. Connelly also asserted that the material being produced did not constitute Brady material. He acknowledged, however, that the material should have been produced pursuant to the reciprocal discovery agreement. (We show Connelly's letter at Exhibit 17 at p. A-56.)
Pickard did not inform Director Louis Freeh about the issue until Thursday, May 10, 2001. Director Freeh was out of the office on May 8 and 9 on personal business, visiting his ill father. Pickard saw Freeh Thursday morning and told him that there was a problem with the documents in the McVeigh case and that they were still trying to get a handle on the issue to determine how egregious an error it was. He also gave Freeh Connelly's letter. Pickard said that he did not expect that Freeh read it that morning, however, because Freeh was preparing for a congressional hearing on an unrelated matter.
The Attorney General was first informed about the belated documents on Thursday morning, May 10, by Mindy Tucker, the Director of the Department's Office of Public Affairs, during an event the Attorney General was attending. Once Tucker raised the issue, the Attorney General immediately discussed it with his chief of staff and sometime later, with Mueller.
McVeigh was scheduled to be executed on May 16, 2001.76 On May 11, 2001, Attorney General Ashcroft stayed McVeigh's execution for 30 days to allow the defense more time to review the documents that had been belatedly disclosed. On May 31, 2001, McVeigh filed a Petition for Stay of Execution in the United States District Court. In his pleading, McVeigh asserted that the belatedly produced materials contained exculpatory material that would have aided his trial defense. He identified eight documents in particular that he contended constituted exculpatory material that the defense needed to properly prepare for trial. He also contended that the belatedly produced documents, as well as evidence gathered by the defense, showed that the FBI had intentionally withheld exculpatory evidence from the defense. (The eight documents and other defense evidence are discussed in Chapter Three, Section V B.)
In its response, the government acknowledged that the belatedly produced material should have been produced pretrial pursuant to the reciprocal discovery agreement. However, the government denied that the material contained any Brady information and denied that it intentionally withheld discoverable materials.
On June 6, 2001, United States District Court Judge Matsch denied McVeigh's request for a stay of execution. Judge Matsch found that McVeigh did not meet the legal requirements for obtaining a stay in that he had not shown, even with the new materials, his actual innocence. While stating his ruling on McVeigh's petition, Judge Matsch also stated:
It is the function of others to hold the FBI accountable for its conduct here, as elsewhere. And I would expect that there would be consequences upon finding what the defense suggests; but there is a great deal of difference between an undisciplined organization or organization that is not adequately controlled or that can't keep track of its information - those are not the questions here. We're not here for the purpose of trying the FBI.
* * *
Now, I do not doubt that there may be as a result of the requested evidentiary hearing evidence presented of negligence, lack of coordination, lack of organization in the collection and maintaining of the materials. But it has to also be viewed in the context of the massive investigation [that] was undertaken here and the speed with which it was done. There seems in my review of what's been submitted here no pattern of what was not disclosed that would suggest a scheme to keep away from the defense what they needed for trial, including the sentence hearing.
On June 7, 2001, the United States Court of Appeals for the Tenth Circuit denied McVeigh's appeal of Judge Matsch's order. McVeigh was executed on June 11, 2001.
On September 6, 2001, the Oklahoma City District Attorney announced that he would try Nichols on 160 first-degree murder counts. Nichols' appeal for a new federal trial was denied by the Supreme Court on October 1, 2001.
We considered whether FBI personnel acted appropriately upon learning that discoverable items may not have been disclosed properly to the defense. We concluded that Defenbaugh and White failed to properly manage the problem. They failed to notify timely the OKBOMB prosecutors or even the FBI's General Counsel to receive legal advice on managing the issue. They also failed to set deadlines for accomplishing tasks and, as a result, the issue exploded just prior to McVeigh's execution. At that point, there was no time for adequate analysis of the issue. We also believe that Oklahoma City supervisors Teater and Marquise should have intervened more aggressively in the situation.
We believe the failure of senior FBI managers to take timely action to resolve or report the problem of the belated documents was a significant neglect of their duties. They waited until the week before McVeigh's execution to notify anyone in FBI Headquarters or the Department of Justice about the problem. Although the managers did not commit intentional misconduct, we believe the FBI should consider disciplinary action for Defenbaugh and White, and to a lesser extent Teater, for their failure to handle this issue more timely and notify the prosecutors and FBI Headquarters about it sooner. The FBI should also evaluate whether Marquise's conduct warrants administrative action. By contrast, we recommend that Vernon and Richmond be commended for their efforts to report and resolve the issues related to the belated documents.
Defenbaugh was the Inspector in Charge of the OKBOMB investigation and is currently the SAC of the Dallas, Texas, Field Office. By all accounts, he has had an illustrious career, capped off by the successful investigation and prosecution of McVeigh and Nichols. He certainly deserves great credit for his hard work on the OKBOMB investigation. Yet, we believe the evidence shows that Defenbaugh acted inappropriately by failing to ensure that the situation was resolved timely when he learned of the potential problem with the documents.
Defenbaugh was informed by at least January 29, 2001, that there was a potential problem with the OKBOMB discovery. Other than properly directing that the files should not be returned to the field and that Vernon and Richmond should determine whether there was a problem, Defenbaugh took no other action through the month of February. He did not determine how the files were going to be retrieved from the field or in what time frame. He took no part in ensuring that the January EC went to the appropriate field office employees, was drafted properly, or accomplished the goal of retrieving the files. He did not communicate with Vernon and Richmond to determine the status of the project. He did not set any timetable for completing it. Nor did he direct White to actively supervise the project or ensure that Oklahoma City managers were supervising it. Most important, he did not notify the OKBOMB prosecutor, the FBI's General Counsel (who, given the legal ramifications of the problem, could have provided necessary advice as to how to handle it), or anyone else in FBI Headquarters about the potential problem.
Defenbaugh explained to us that he did not want to notify anyone about the issue until he was certain that there was in fact a real problem. He said that OKBOMB had been beset by leaks and that he did not want to have information about an OKBOMB problem getting to the press when there likely was no problem. Defenbaugh said that he wanted to wait until the entire review project had been completed and they knew the true extent of the problem before he notified anyone. Defenbaugh said that he was told throughout this time period that Vernon and Richmond were working on the project and that it was unclear whether the documents had not been disclosed. He said he continued to believe that the items would be found. When asked why he did not supervise Vernon and Richmond more closely, he said that they were very hard workers, they knew what they were doing, and that he believed they were working expeditiously.
Although we question whether it was reasonable to spend the month of February allowing the review process to continue without active supervision, this state of affairs continued even after Defenbaugh and White visited Oklahoma City in March and had an opportunity to speak directly with Vernon and Richmond. Vernon and Richmond told us that by March they realized that there was a definite problem, that they had worked very hard to establish that items had been disclosed, but that a significant number of documents could not be found in their OKBOMB databases. Defenbaugh said he came away from the March meeting believing that few documents were involved and that more checking still needed to be done. We believe Defenbaugh should have notified FBI Headquarters and the OKBOMB prosecutors about the potential problem, even if he hoped - or even believed - that more checking could possibly find the documents. The speculative possibility that the documents might be found did not justify keeping the information from others.
Defenbaugh also argued that supervision of the project was Oklahoma City's responsibility. While we do fault (to a lesser extent) Oklahoma City supervisors, we do not believe their failure excuses Defenbaugh's inaction. Vernon and Richmond had sufficiently apprised Defenbaugh (through White) of the contours of the problem that he should have been aware of its potentially serious ramifications. As the former head of the FBI team, Defenbaugh had an obligation to ensure that a problem of that magnitude was being resolved timely and adequately. He should have done so by either providing more rigorous supervision himself or by ensuring that senior Oklahoma City managers were actively supervising the project.
The evidence shows that Defenbaugh inappropriately chose to wait until every document had been examined before events forced him to take action. This was particularly troublesome given what we know about the field offices' responses to Richmond's ECs - many field offices were not responding or not responding promptly.
Defenbaugh asserted that he wanted to be sure there was a problem and that they conducted a thorough review before anyone was notified of the problem.77 Yet, Defenbaugh's lack of attention to the review, his lack of direction to the individuals conducting the review, and his lack of follow-up between January and May meant that a matter that required expedited handling dragged on until the last possible moment. We believe that he could have and should have done more to bring the issue to a resolution earlier. We do not believe it was necessary or reasonable to wait until every last document had been reviewed before taking action. Timetables should have been set, adequate resources brought to bear, and appropriate FBI and Department of Justice personnel notified. From what we were told, McVeigh's execution date was not discussed among the participants; yet, it stood as a looming deadline that should have caused Defenbaugh to resolve the issue promptly and to notify others sooner.
White also has been praised for his work on the OKBOMB investigation and for his role in assisting the prosecutors to organize the belated documents in 2001. This praise is unquestionably well-deserved. For the reasons that we set forth in the previous section concerning Defenbaugh, however, we also believe that White failed to take appropriate action in response to his learning of the potential problems with the documents.
White told the OIG that he did not believe it was his responsibility to manage the situation. He stated that he had properly notified Defenbaugh and that an Oklahoma City supervisor, Teater, also was involved. White told the OIG that he was acting more as a "consultant," and that he was "in" and then "out" of the situation. He also asserted that it was not his place to notify Connelly or anyone else about the problem. He argued that in the FBI's chain of command, it was Defenbaugh who needed to make the decision about notification.78 In his written response to the OIG, White also disputed the portion of the OIG report that stated that Oklahoma City personnel were aware by March 2001 that discoverable documents had not been disclosed to the defense. White stated that he had been told only that Oklahoma City had "problem" documents and the analysts were still working on finding them. White also reiterated in his written response that he was not an "OKBOMB supervisor" in 2001 and therefore he had no authority to make any decisions, set any deadlines, or take any action with respect to the OKBOMB documents.
We do not agree that the FBI's chain of command absolves White of responsibility for ensuring that the problem documents were handled appropriately. Although Teater was involved, Teater did not know the OKBOMB discovery issues like White did.79 Richmond and Vernon were communicating with White about the problem and the status of the project. They were not communicating directly with Defenbaugh and neither was Teater. We believe White should not have acted simply as a conduit of information between Oklahoma City and Defenbaugh. He should have become involved in setting deadlines for reviewing the documents and making decisions about how to bring the problem to a resolution.
Although White described his actions as being a "consultant" and as being "in" and then "out," the evidence shows that he was fully involved with other OKBOMB issues. There are innumerable e-mails in 2001 to and from White regarding the FBI's attempt to interview McVeigh. Indeed, White appeared to be leading that effort. Determining whether there was a discovery issue that might affect McVeigh's and Nichols' convictions was also an important issue and should have received at least an equal amount of his attention.
While White told us that he did not believe that he was supervising the review project, others were not of the same belief. Richmond, Vernon, and Teater all believed that both White and Defenbaugh were in charge of the issue. During our interview of White, he seemed to be stating that others had erred by including him in the first place. He stated that Teater and Vernon should have gone elsewhere when they saw they had a problem. We believe that it was reasonable for the Oklahoma City personnel to believe that the Inspector in Charge and one of the OKBOMB supervisory agents were the appropriate persons to resolve the problem or at least provide adequate guidance as to what they should do. Indeed, in White's January 29 e-mail response to Vernon, he instructed her to keep him apprised of the status of the situation and what they were finding. Also, given the FBI's chain of command, Richmond, Vernon, and Teater all believed that they needed to go through White to get information to Defenbaugh. If White wanted to be "out," he should have notified the Oklahoma City personnel involved in the matter that he was not handling it and that they needed to contact Defenbaugh directly. As it was, Richmond, Vernon, and Teater acted in reliance upon their belief that White was actively supervising the project. If they had known otherwise, they might have been more insistent upon getting other managers or Connelly involved.
Teater had been involved in some aspects of the OKBOMB investigation, although not in discovery and not in a supervisory capacity. Because he was the squad supervisor for the squad that retained some responsibility for OKBOMB, he became the only Oklahoma City Division supervisor managing the project.
In many ways, Teater performed appropriately. Teater tried to ensure that Vernon and Richmond had adequate resources and that they were communicating with White. We also believe it was reasonable for Teater to look to Defenbaugh and White, as the senior OKBOMB managers, to supervise and make decisions regarding the problem. And Teater also apprised his supervisor, to some extent, of what was going on.
Under the circumstances presented by this unusual case, however, where a potentially significant legal problem had arisen in a case involving a defendant facing the death penalty, we conclude that Teater's limited actions were inadequate. Given the fast approaching upcoming execution, Teater - as the supervisor for the squad handling the post-OKBOMB issues - should have done more to ensure that someone was making the necessary decisions to resolve the matter expeditiously. Teater should have spoken to White, Defenbaugh, or Marquise directly rather than simply assuming that someone else was managing the project.
Marquise became SAC of the Oklahoma City Division in 1999. He told us that he was not aware of any of the issues regarding the documents until May 7, 2001. Yet, Marquise received e-mails from Teater indicating that there was a problem with the OKBOMB documents. Marquise told the OIG that although he read Teater's e-mails, he did not appreciate the problem that Teater was describing. He said he may have assumed that Teater was describing some issue that concerned the FBI's project for providing documents to the Oklahoma City District Attorney who was considering whether to prosecute Nichols on state charges. In his written response to the OIG following his review of the draft report, Marquise asserted that no one could have determined that Oklahoma City personnel were dealing with a serious discovery problem based on Teater's e-mails. Marquise also asserted that the Oklahoma City ASAC should have dealt with Teater and that a failure in communication between Teater and the ASAC led to the problem.
We acknowledge that the import of Teater's e-mails may be somewhat different in light of subsequent events than they could have been interpreted at the time. Consequently, we had difficulty determining whether or how much criticism should be directed at Marquise. Nonetheless, because of the unusual circumstances of this case - an extremely high-profile matter with a defendant who was to be executed shortly - Teater's e-mails seem to provide enough information that should have caused a manager of Marquise's experience to at least question Teater, or to have the ASAC question Teater, about what was going on and to ensure, at a senior level, that someone was in full control of the problem and working to resolve it expeditiously. Marquise did not do this.
We believe that Richmond and Vernon are to be commended for their actions regarding this matter. We believe their dedication and efforts should be recognized, both within the FBI and elsewhere. They almost single-handedly organized and performed the initial review of the documents, provided assistance during the second wave review, and provided immeasurable assistance to the OIG during our investigation.
Moreover, we believe the FBI would do well to use this as an opportunity to help remedy a long-standing FBI problem - the belief among FBI employees that bringing problems to management's attention only results in problems for the employee.80 Absent Vernon's and Richmond's realization that there was a potential discovery problem and their desire to resolve the issue, it is unlikely that the "belated documents" problem would have been uncovered. Their actions also have provided an opportunity for the FBI to focus on long-standing problems with its information management system, problems that also affect the FBI's present investigative capacities.
Accordingly, we believe that Vernon and Richmond should be commended for their recognition and reporting of a problem, in addition to commending them for the assistance they provided in resolving the issue.
addressee(s) must take prompt action or have an urgent need for the information. Immediate teletypes require approval by the SAC, division head or their designated representative (at FBIHQ) and must be given preferred handling throughout each area of dispatch and receipt. Immediate teletypes require prompt delivery to the appropriate receiving official.
The manual also states that "priority" is used when information is needed within 24 hours and "routine" is used when information is needed within the normal course of business. The FBI Manual requires that ECs sent to all FBI offices must be approved by the field office SAC. Teater did not seek the Oklahoma City SAC's approval for Richmond's January 30, 2001, EC.
For the reasons stated in this section, we do not believe that Defenbaugh's inaction was justified.
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