SECTION H5: GINO NEGRETTI
In December 1989, a car bomb exploded, seriously injuring Miami criminal defense attorney Gino Negretti. In 1994, Florida authorities arrested and tried Victor Seijas for the attempted murder of Negretti. Seijas was ultimately acquitted by the jury. EU examiner Alan R. Jordan examined the debris from the explosion and reported finding remains of a pipe bomb and damage consistent with a high explosive main charge. Whitehurst conducted explosives residue examinations and reported finding RDX, residues consistent with HMX, and residues consistent with a potassium nitrate/sulfur based low explosive. Shortly before trial, the prosecution and defense entered into a stipulation that permitted Jordan to testify to Whitehurst's results.
Whitehurst claims that Jordan may have changed or misreported his dictation while testifying at trial. Whitehurst also alleges that the prosecutor in the Seijas case may have stipulated to allow Jordan to present Whitehurst's results because she sought to alter or misrepresent those results at trial.
We reviewed a transcript of Jordan's testimony at trial, along with pertinent Laboratory reports, dictation, work notes, and memoranda. We also interviewed various individuals involved in the Seijas case, including the prosecutor, Florida Assistant State Attorney Catherine Vogel, defense counsel Jack Blumenfeld, FBI Explosives Unit examiner Alan Jordan, Explosives Unit technicians Keith Rogers and Wynn Warren, and Whitehurst.
We conclude that Jordan did not change or misreport Whitehurst's results while testifying in this case. We likewise find no basis to conclude that the prosecutor stipulated to Whitehurst's results because she sought to misreport those results at trial through Jordan. Although Jordan's testimony contains a minor inaccuracy, we find that this inaccuracy does not reflect conscious misreporting or knowing misconduct. As with other cases we have reviewed, however, this case illustrates that the Laboratory would benefit from written guidelines for examiner testimony that, among other things, require examiners to be accurate in describing the analyses and conclusions of other examiners.
II. Factual Background
On December 15, 1989, a bomb exploded under the car being driven by Miami criminal defense attorney Gino Negretti. Negretti survived the explosion, but sustained a broken arm and fragmentation injuries to his hands, arms, and upper body. In 1994, Florida authorities tried Victor Seijas for the attempted murder of Negretti. The jury ultimately acquitted Seijas of those charges.
The FBI assisted in the investigation of the crime scene. Preliminary crime scene examination indicated that the explosive device was a pipe bomb, at least six inches in length, containing a high explosive main charge. Investigators shipped seven boxes of evidence to the FBI Laboratory for examination.
Explosives Unit examiner Alan R. Jordan and Whitehurst conducted examinations for the Laboratory. After examining several items from the crime scene, Whitehurst reported in his dictation that he found residues consistent with black powder and potassium nitrate/sulfur based low explosives. Jordan issued a December 17, 1990, Laboratory report, which reported these findings verbatim.
Some time later, Jordan told Whitehurst that notwithstanding the finding of low explosives residue, Jordan believed the damage was consistent with the use of a high explosive. In particular, Jordan formed the opinion that a low explosive could not have caused the type of damage he had observed in certain pipe fragments. Therefore, Jordan asked Whitehurst to examine other items for possible high explosives residue. Whitehurst examined several additional items of evidence, including a combined specimen taken from two metal fragments, Q44 and Q69. In that specimen, Whitehurst identified RDX and residues consistent with HMX, both high explosives, and stated in his dictation:
The results of chemical and physical analyses of specimens Q44 and Q69 identified the presence of RDX and are consistent with the presence of HMX. The combination of these two explosives is found in C-4 plastic explosive manufactured in the United States.
Jordan subsequently issued another Laboratory report, dated July 9, 1991, which incorporated Whitehurst's dictation although without any reference to specimen Q44.
Florida authorities later identified Victor Seijas and Richard Wolfferts as suspects. Wolfferts subsequently agreed to cooperate and told authorities that Seijas had hired him to manufacture and install the explosive device. In 1994, the Florida State Attorney's Office charged Seijas with the attempted murder of Negretti.
In June 1994, the prosecutor Assistant State Attorney Catherine Vogel and defense counsel Jack Blumenfeld traveled to Washington, D.C. to take the depositions of Jordan and Whitehurst. Before the depositions, Vogel met with Whitehurst and Jordan. During that conversation, Vogel asked Whitehurst to explain his findings. After listening to Whitehurst, Vogel found Whitehurst to be difficult to understand and therefore decided to ask Blumenfeld to stipulate to allow Jordan to testify to Whitehurst's findings. Blumenfeld agreed, and Whitehurst's deposition was canceled. Shortly thereafter, Vogel and Blumenfeld entered into a written stipulation, which provided in part:
Special Agent Allen [sic] Jordan shall be allowed to testify to the results of the chemical analysis performed by Fred Whitehurst on metal fragments from the scene.
At trial in October 1994, Vogel asked Jordan about Whitehurst's findings and Jordan responded as follows:
Q. Okay. Was this evidence sent to Fred Whitehurst for chemical analysis?
A. Yes, ma'am.
Q. I am going to show you I believe Q-69, which is the long length of pipe fragment. I mean pipe nipple, which is marked as state's exhibit number 173. Was this sent to Mr. Whitehurst for chemical analysis?
A. Yes, ma'am. I recall sending this to Mr. Whitehurst.
Q. And did Mr. Whitehurst send you back a positive chemical analysis on this piece of evidence?
A. What he sent back was his findings of materials, residues consistent with RDX and HMX. Both of which are explosive material. HMX is a by product of RDX.
Q. Now, sir, would the presence of RDX and the HMX on this nipple fragment be consistent with the explosive that was used having been a booster?
A. Yes, ma'am. Both are high explosives. And high explosives were used in this particular device. Those are the certain characteristics that are imported to metal and other pieces, I knew that it had to be a high explosive material and it is consistent with that.
During cross-examination, Blumenfeld also asked Jordan about Whitehurst findings and Jordan responded as follows:
Q. Mr. Jordan, you talked about RDX and HMX. It sounds like a commercial for Hooked on Phonics. RDX and HMX are components, is that correct?
A. Yes, sir.
Q. They are components found in a number of different explosives?
A. Yes, sir.
Q. They are found in C-4
A. Yes, sir.
Q. C-4 is a plastic explosive?
A. Yes, sir.
Q. This is a -- it is a plastics form like a play dough.
A. It is a molded type of explosive and generally characterized as a military explosive when someone talks about a plastic explosive.
Q. If RDX was found in one of these ammo cans that has been shown to you, it would be consistent also with C-4 being in that ammo can?
A. Yes, sir.
Q. Was C-4 used in that device?
A. No, sir. I don't believe so.
Q. RDX is also found in military dynamite?
A. Yes, sir.
III. Analysis of Whitehurst's Allegations
Whitehurst claims that Jordan may have misreported Whitehurst's findings at trial. As observed above, Jordan testified on direct examination that Whitehurst found residues consistent with RDX and HMX. Jordan later testified on cross-examination that RDX and HMX are components of C-4, a plastic explosive. Whitehurst, by comparison, reported that his results identified the presence of RDX residues and are consistent with the presence of HMX. Whitehurst further reported that, [t]he combination of these two explosives is found in C-4 plastic explosive manufactured in the United States.
We find that contrary to Whitehurst's suggestion, Jordan did not purposely misreport Whitehurst's results. While Jordan failed to make clear that Whitehurst actually identified RDX, there is no evidence that Jordan acted intentionally or that his lack of precision was material. Vogel observed that in the context of this case, it was not important whether the residue was identified as or merely consistent with RDX. According to Vogel, the outcome of the trial had nothing to do with the kinds of explosives used in the bomb. Additionally, Jordan denied any intention to understate the strength of Whitehurst's findings. Even Whitehurst acknowledged that he was not left ill at ease with Jordan's testimony since if it's identical to RDX it's, of course, consistent with RDX.
Although Jordan did not misreport Whitehurst's findings, Jordan's failure to distinguish between identified and consistent with does highlight the importance of accurately reporting the dictation of other examiners. Jordan told us that in his view, this distinction was not a big deal. We do not agree. Although the distinction was not especially meaningful in this case, such a distinction may be important in another case. Thus, where the parties stipulate to permit one examiner to testify to the findings of another examiner, the Laboratory should encourage the testifying examiner to accurately recite those findings.
We also find no basis for Whitehurst's suggestion that prosecutor Catherine Vogel stipulated to Whitehurst's results because she sought to alter or misreport those results at trial. Vogel told us that she decided to stipulate to Whitehurst's testimony based primarily on her conversation with Whitehurst before the deposition. Vogel explained that she thought Whitehurst was intelligent but difficult to understand. Vogel stated that Whitehurst used terms that were hard to comprehend. Vogel recalled that she thought the jury would be overwhelmed by Whitehurst's testimony, noting that prospective jurors in Dade County, Florida were not especially well-educated. Jordan, who was present during the conversation between Whitehurst and Vogel, also told us that Whitehurst's explanation was confusing:
[Whitehurst] might as well have been talking Chinese -- she had no clue as to what he was saying. And I had very little clue. And when Fred left, I remember her making some kind of a comment, and then I said I couldn
Although Vogel reported that her primary reason for not calling Whitehurst was her belief that he might confuse the jury, she also concluded that Whitehurst's testimony was not especially important to the case. Vogel explained that the principal issue at trial was whether the State's informant witness, Richard Wolfferts, was telling the truth in implicating Seijas. Whitehurst's testimony about the explosives used was not especially probative of that issue, according to Vogel. Vogel explained that Wolfferts was imprecise in describing the explosives and recalled only that the explosives resembled dynamite. Because Wolfferts' description was so vague, Whitehurst was not in a position to corroborate Wolfferts. She therefore decided to forego calling Whitehurst to further explain his results. In sum, the evidence does not support Whitehurst's allegation that the prosecutor stipulated in order to misreport his finding at trial.
Likewise, we find no basis to conclude that Jordan sought to testify in place of Whitehurst, contrary to Whitehurst's suggestion. Vogel told us that she made the decision not to call Whitehurst; Jordan did not discourage her from using Whitehurst at trial. Defense counsel Jack Blumenfeld also told us that he made the decision not to call Whitehurst for his own reasons. Blumenfeld recalled that the Laboratory report containing Whitehurst's results was clear, and therefore it was not necessary to depose Whitehurst or to call him as a witness.
Whitehurst raised an additional issue during our interview. Whitehurst questioned the basis for Jordan's testimony on cross-examination that Jordan did not believe that C-4 was used in the device. When we asked Jordan about this conclusion, Jordan stated that he based his testimony on his observations of the damage. Jordan said that he did not see the type of damage to metal fragments consistent with the use of C-4 explosive. Jordan also stated that based on the estimated size of the device under Negretti's car, a pipe bomb composed of C-4 explosive would have caused greater damage to the car. We find no reason to take exception to Jordan's testimony.
Finally, during our interview, Whitehurst reported that other auxiliary examiners had also complained that their findings had been stipulated to and possibly misreported. When we asked Whitehurst to identify these other examiners, Whitehurst stated that he did not recall specifically which examiners voiced these concerns. Whitehurst added that MAU Chief James Corby and metallurgical examiner William Tobin had commented that Explosives Unit examiners frequently testified to the results of other examiners. During our interviews, we routinely asked other auxiliary examiners from the MAU, CTU, and EU whether their results were altered or misstated. No other examiner voiced the concern that stipulations were being used for the purpose of misreporting forensic results at trial. We conclude that Whitehurst's allegations in this regard are unfounded.
We conclude that Jordan did not misreport Whitehurst's results in the Seijas case. The evidence also did not support Whitehurst's allegations that the prosecutor stipulated to allow Jordan to report Whitehurst's results because she sought to alter or misrepresent those results at trial. Notably, Whitehurst himself reviewed the transcript of Jordan's testimony at trial and acknowledged that his concerns did not prove to be the case with the Negretti matter. To the extent that we noted an inaccuracy in Jordan's testimony, we think that it illustrates the need for written guidelines that ensure that examiners accurately report the conclusions by others in the Laboratory.