SECTION H4: PAOLO BORSELLINO
In July 1992, Italian judge-prosecutor Paolo Borsellino and five police escorts died in a car bombing in Palermo, Sicily. At the request of Italian authorities, FBI personnel, including Explosives Unit examiner Robert Heckman and Whitehurst, traveled to Sicily to participate in the investigation. Whitehurst examined various items from the explosion scene and reported residues consistent with RDX explosive. Heckman later testified in Sicily at the trial of several individuals charged with the bombing. Upon his return to the United States, Heckman described his testimony to Whitehurst and Burmeister.
Based on that conversation, Whitehurst claims that Heckman may have testified outside of his area of expertise and improperly rendered an opinion concerning the explosives residue analysis. Specifically, Whitehurst reports that the Italian prosecutor asked Heckman whether Whitehurst's findings were consistent with the use of Semtex, an explosive containing both RDX and PETN. According to Whitehurst, Heckman responded that he lacked the expertise to testify about that subject; however, the prosecutor reportedly requested that Heckman testify about the subject anyway. Thus, Whitehurst said that Heckman testified that the presence of RDX residues would be consistent with the use of Semtex because different energetic components in the same explosive material could deposit themselves in a nonhomogeneous manner throughout the crime scene. Whitehurst charges that this testimony, in addition to being outside of Heckman's area of expertise, was unreliable because of the potential for contamination at the scene.
We obtained from Italian authorities a videotape of Heckman's testimony at the trial in Italy. We further reviewed the Laboratory reports and dictation and pertinent work papers in the case. Finally, we interviewed a number of FBI personnel involved in the investigation, including Explosives Unit examiners Robert Heckman and Wallace Higgins, Explosives residue examiner Steven Burmeister, FBI Special Agent Jack Barrett of the Organized Crime/Drug Operations Section, FBI Special Agent and Rome Legal Attaché Joseph Genovese, and Whitehurst.
We conclude that Heckman did not testify outside his area of expertise or improperly render an opinion in this case. Nor do we find that Heckman's testimony was unreliable due to his failure to consider potential contamination. As with other cases, we conclude that this case illustrates the need for clearer guidelines for examiner testimony, particularly when a principal examiner is asked to report the findings of another examiner.
II. Factual Background
On July 19, 1992, Italian judge-prosecutor Paolo Borsellino and five police escorts died in a car bombing in Palermo, Sicily. The bomb inflicted significant structural damage on buildings in the area and damaged or destroyed some 20 to 25 cars nearby. Italian authorities believed that an organized crime group planted the bomb as a reprisal for Borsellino's investigation of that organization. Following this bombing, the Italian authorities requested assistance from the FBI's Organized Crime/Drug Operations Section and the FBI Laboratory.
In response to that request, various FBI personnel including FBI Special Agents Jack Barrett of the Organized Crime/Drug Operations Section, Explosives Unit examiner Robert Heckman, and explosives residue examiners Frederic Whitehurst and Steven Burmeister traveled to Sicily to assist in the investigation. Whitehurst brought to Sicily a Barringer Ion Mobility Spectrometer (IMS) and conducted on-scene explosives residue analysis. Whitehurst intended to confirm any on-scene preliminary findings from the IMS through later Laboratory testing with a mass spectrometer.
After several days of sifting through the evidence, the FBI identified and marked 85 questioned specimens, including fragments of wire, metal, magnets, cable, circuit boards, batteries, and other items. Whitehurst prepared acetone extracts from these specimens and left the specimens for further testing by Italian authorities. Several weeks later, Italian authorities sent Whitehurst approximately half of the specimens, specimens Q41 through Q85, for examination at the FBI Laboratory in Washington, D.C. After receiving the specimens, Whitehurst conducted examinations using gas chromatograph/mass spectrometry. Whitehurst reported that he found residues consistent with RDX on three of the specimens, Q46, Q69, and Q72. Whitehurst's dictation states in pertinent part:
The results of these analyses are consistent with the presence of RDX on the samples as follows:
Q46 (Your item A5)
Q69 (Your item C8)
Q72 (Marked as item 32 at the crime scene)
Chemical and physical analyses of specimens Q41 through Q45 and Q47 through Q68 did not locate the presence of explosives residues. Specimens Q74 through Q85 were not analyzed for the presence of explosive residues.
In mid-May 1995, Italian authorities asked Heckman to testify at trial in Palermo, Sicily. Shortly before his testimony, Heckman met for several hours with Italian prosecutors in Sicily. Also present were Joseph Genovese of the FBI Legal Attache Office in Rome and FBI Special Agent Jack Barrett. Heckman reportedly told the prosecutor during this meeting that Whitehurst had conducted the explosives residue examinations and that he could not interpret Whitehurst's findings. The prosecutor asked Heckman to introduce those findings at trial anyway. Heckman told us:
I said, if you want, we can have Mr. Whitehurst over here; we can get him over on the next flight to testify. They said, no, we don't want him, we don't need him. He said, under our law -- this is being translated -- under our law, you as the man in charge of the team that was here and the one that wrote the report giving the results from another individual can testify to those results -- basically read them out of the report. . . . Basically, that's what I told him that, you know, I am not an expert in that area; that's not my work; I cannot testify as a an expert in the analysis of explosive residues. They said, no problem, no problem; we still want you to testify.
Barrett also reported that Heckman made clear to the Italian prosecutor that Heckman was not responsible for Whitehurst's findings and was not comfortable testifying about those findings. Genovese also recalled that Heckman expressed concern about testifying about the chemical analysis.
On May 17, 1995, Heckman, along with Barrett and Genovese, testified for approximately one and one-half hours. According to the videotaped testimony, Barrett and Genovese testified about the role played by the FBI during the investigation. Following this testimony, Heckman testified concerning his own forensic examinations of the evidence and his conclusions concerning the approximate size and placement of the bomb based on the damage.
In the course of that testimony, Heckman also testified about the explosives residue examinations by Whitehurst. Specifically, Heckman testified that the FBI collected vials of acetone extracts from swabbings at the scene and analyzed the vials using the Ion Mobility Spectrometer. Heckman noted that in selecting items for examination, they looked for debris that showed the effects of the explosion. When asked if the FBI found any traces of explosives, Heckman testified that specimens Q41 through Q72 in particular gave indications on the mass spectrometer of RDX. Heckman added that those findings required confirmation in the United States. Heckman said that after a second analysis in the United States, specimens Q46, Q69 and Q72 gave confirmation of RDX. Heckman further testified that the FBI did not find traces of any other explosives, but that did not necessarily mean that other explosives were not used.
In response to further questions, Heckman stated that RDX can be used alone or with other explosives. Heckman stated that one such explosive is PETN. When asked what kind of explosive would result from a combination of RDX and PETN, Heckman said that the most common kind is Semtex. Heckman also testified that in the United States, RDX is mixed with a plasticizing compound to create C-4. Heckman testified that C-4 is primarily a military explosive, but is becoming more common in the commercial sector for use in quarry operations, mining, and building demolition. Heckman also stated that RDX usually takes solid block form as a crystalline substance, but can be pulverized into a powder. When asked whether the RDX traces could have come from the detonator, Heckman responded that most detonators use RDX as a charge.
At the conclusion of this testimony, the prosecutor excused Barrett, Genovese, and Heckman. As of April 1997, the trial in Italy is continuing.
III. Analysis of Whitehurst's Allegations
Whitehurst alleges that Heckman testified outside of his area of expertise.
Our review of the videotape of Heckman's testimony did not support Whitehurst's allegation. Heckman did report the results obtained by Whitehurst. He also testified that RDX can be used alone or with other explosives, including PETN; that RDX can be mixed with plasticizers to make C-4; that the most common explosive combining RDX and PETN is Semtex; and that the FBI Laboratory's failure to find other residue does not exclude the possibility that other explosives were used. Heckman did not testify that Whitehurst's results were consistent with the use of Semtex, as suggested by Whitehurst. Nor did he testify that components of Semtex, such as RDX, might have deposited themselves in a nonhomogeneous manner at the explosion site.
The testimony given by Heckman was accurate and was not outside the knowledge and experience of an FBI explosives examiner. Explosive examiners are expected to be familiar with the composition of prominent explosives, to maintain and use specific product data sheets, and to generally understand compositional characteristics. Heckman did not testify improperly in this regard.
Although Heckman did not testify beyond his expertise, it is noteworthy that Heckman did make several minor misstatements during his testimony. Because these errors were not significant, they do not change our conclusions about Heckman's conduct. Specifically, Heckman testified that it is becoming increasingly common for C-4 to be used commercially in quarry and mining operations. In fact, C-4 is not generally used for such purposes because it is so expensive. Heckman also stated that RDX usually appears as a solid block, but can be pulverized into a powder. This statement could be misleading, in that RDX initially is manufactured as a powder. Heckman further testified that most detonators use RDX in the charge. This is not correct; rather PETN is most commonly used for this purpose. Finally, Heckman testified that the FBI had electronically examined fragments of electronic components and determined that they were part of a transmitter/receiver. During our interview Heckman acknowledged that he was mistaken, in that the FBI only visually examined the circuit board fragments. The foregoing examples highlight the importance of examiners testifying accurately even within their own areas of expertise.
Whitehurst also claims that Heckman should have refused to testify concerning Whitehurst's results, because Heckman was not an expert in the area of explosives residue analysis. We do not agree. The evidence shows that Heckman made clear to the Italian prosecutors that he did not conduct the explosives residue analysis in the case and did not have the expertise to interpret those findings. In response, the Italian prosecutor asked Heckman to recite Whitehurst's results from the Laboratory report. Laboratory policy permitted a principal examiner to accurately recite the results of an auxiliary examiner at trial, as long as the principal examiner did not attempt to interpret those results. Given these circumstances, it was appropriate for Heckman to report the explosives residue findings.
Although Heckman was permitted to report Whitehurst's findings, Heckman should have been more precise in reciting those results. Heckman mistakenly testified that during initial examinations in Italy, explosives residue examiners detected traces of explosives using a mass spectrometer. In fact, Whitehurst and Burmeister used an Ion Mobility Spectrometer to initially screen these specimens. More importantly, Heckman testified that Whitehurst later examined specimens Q46, Q69, and Q72 at the FBI Laboratory and that those samples gave confirmation of RDX. By using this phrase, Heckman erroneously suggested that Whitehurst had actually identified RDX on those specimens. In fact, Whitehurst reported that residues from these specimen were consistent with the presence of RDX on those specimens, a somewhat weaker finding.
Finally, Whitehurst charges that Heckman's testimony was unreliable in view of the potential for contamination in this case. We do not agree that concerns about contamination precluded Heckman from reporting the explosives residue results. The evidence shows that the FBI personnel at the explosion scene were aware of the potential for contamination because the site was so large and so many people were present. FBI personnel told us that they recognized that the Italian authorities were not as well trained in crime scene preservation and evidence collection as their FBI counterparts. Moreover, FBI personnel arrived two days after the bombing and could not be sure that all precautions against contamination had been taken by Italian authorities. Heckman told us that in view of these facts, he considered the potential for contamination at the explosion scene. However, Heckman knew of no specific reasons to be concerned that the explosives residues gathered and analyzed by Whitehurst had been affected by contamination. Notably, Whitehurst also failed to reflect any such concern in dictations that he prepared in this case.
In view of the foregoing, Whitehurst's non-specific concerns about possible contamination were not a sufficient reason to preclude Heckman from reporting the explosives residue results. If the prosecutor had asked Heckman to discuss or interpret those findings, or more specifically the effect of contamination on those findings, our conclusion might be different. Here, however, the Italian prosecutor did not ask Heckman to testify concerning the potential for contamination. The videotape of the testimony shows that the prosecutor simply asked whether the FBI had found traces of any explosives. In response, Heckman was permitted to report the results from the explosives residue examinations.
The evidence does not support Whitehurst's allegations that Heckman testified beyond his expertise or rendered unreliable testimony due to the potential for contamination. Under the circumstances of this case, Heckman was permitted to report Whitehurst's findings while testifying at trial.
As in other cases we have reviewed, however, this case illustrates the importance of principal examiners accurately reporting the results of other examiners. Heckman attempted to paraphrase the explosives residue results at trial, and in so doing, suggested that Whitehurst confirmed the presence of RDX, when in fact Whitehurst found residues consistent with RDX. Guidelines should direct examiners to be accurate in describing analyses or conclusions made by others and to be careful not to stray beyond their own expertise.