SECTION H7: JUDGE JOHN SHAW
In a letter to the OIG dated April 8, 1995, Whitehurst alleged that CTU examiner Ronald Kelly, without being properly qualified, had prepared a report that identified smokeless powder in a pipe bomb sent to a federal judge. Whitehurst further contended that the analysis in the case was flawed because it did not determine if materials other than smokeless powder were present in the bomb. He also suggested that Roger Martz, as chief of the CTU, violated FBI policies by assigning the case to Kelly.
To investigate the allegations, we reviewed the Laboratory report and Kelly's notes and other work papers. We also interviewed Kelly, Roger Martz, Steven Burmeister, and Robert Heckman.
We conclude that Kelly did not violate any FBI policies or procedures through his work on the case. His identification of smokeless powder appears to be technically correct and is supported by his notes and analytical data. We also conclude that Martz did not violate any FBI policy in assigning Kelly to work on the case.
Whitehurst makes a valid point in noting that the analysis performed may not have identified all substances present in the bomb. Our investigation revealed that Laboratory personnel had different understandings concerning the applicable protocols for this type of analysis.
The case illustrates the need to integrate the CTU's different protocols for the identification of explosives and to clarify the respective roles of the EU and CTU examiners in determining the type of analysis to be done.
II. Factual Background
Ronald Kelly became qualified as a forensic chemist examiner in the FBI Laboratory in February 1995. Before then, he had worked in the CTU since September 1978 as a physical science technician. Because Kelly is not an FBI agent, he was not eligible to become an examiner until relatively recently. Kelly told us that his particular expertise is in arson and fire examinations. He also has worked on the analysis of smokeless powders since 1985. During 1995, he was training to become qualified as an explosives residue examiner.
On March 18, 1995, the FBI Laboratory received evidence related to an improvised explosive device found on March 16, 1995, at the offices of United States District Judge John Shaw in Lafayette, Louisiana. EU examiner Robert Heckman was the principal examiner on the case. The evidence included samples of what appeared to be smokeless powder that had been taken from the unexploded device. By this time, Steven Burmeister had been reassigned to the CTU, where he was performing explosives residue examinations. Roger Martz, chief of the CTU, recalled assigning the case to Ronald Kelly because Burmeister was unavailable.
Kelly did not think there was anything unusual about the analysis in the case, as he had previously worked on many smokeless powder cases. Heckman, Kelly stated, asked him only to identify, by brand name if possible, the suspected smokeless powder in the device. Accordingly, Kelly did not understand Heckman to have requested a comprehensive analysis of the materials to determine if substances other than smokeless powder may have been present. Heckman's recollection was slightly different. He initially stated that he had sent the sample for an explosive analysis in general, and he thought that Kelly had made the decision to conduct only the smokeless powder analysis. Heckman added that because the bomb had not exploded and there was an intact powder sample, it would be logical to follow the smokeless powder protocol, and he did not think Kelly should have followed the more comprehensive protocol. Heckman also acknowledged that he may have asked Kelly only to confirm and identify the smokeless powder.
On receiving the evidence, Kelly followed the CTU's written protocol for the identification of smokeless powders. Initially, he examined the samples with a microscope and measured and otherwise noted the physical characteristics of the powder, which in this case included the presence of yellow dots. Kelly then prepared an extraction with methylene chloride and conducted an analysis on the Gas Chromatograph/Mass Spectrometer (GC/MS). The results indicated that particular samples were double base smokeless powder. He also confirmed the presence of nitrocellulose, a component of smokeless powder, in one sample through the use of Fourier Transform Infrared Spectroscopy (FTIR).
Based on his examination of the evidence, Kelly prepared dictation for a Laboratory report dated March 18, 1995. That report notes that, [s]pecimens Q1, Q2, Q4, and Q7 were identified as double base smokeless powders suitable for future comparison. After performing some additional work on the GC/MS, Kelly prepared a second dictation on April 6, 1995, noting that the identified specimens were physically and chemically consistent with Hi-Skor 700-x smokeless powder.
No suspect was identified in the Shaw case. We understand that no further analytical work has been done by the Laboratory since April 1995.
III. Analysis of Whitehurst's Allegations
Whitehurst contends that Kelly should not have examined the evidence because Kelly had not been qualified as an examiner of explosives residue. Whitehurst also maintains that the analysis was flawed because it may have overlooked certain materials present in addition to smokeless powders. Finally, he suggests that Roger Martz violated Laboratory policies in assigning the case to Kelly. Whitehurst did not work on the Shaw case himself, and he did not discuss any of his concerns with either Kelly or Heckman.
We do not find that Kelly performed the analysis without qualifications then required within the Laboratory. Kelly became qualified as an examiner in forensic chemistry in February 1995. Forensic chemist examiners in the CTU had been analyzing smokeless powders since the 1980s. When Kelly worked on the Shaw case, there was no stated FBI policy that the analysis of smokeless powders had to be done by explosives residue examiners as distinct from forensic chemists such as Kelly.
Nor do we find that Martz violated any Laboratory policies in assigning the case to Kelly. We do think that Martz as unit chief should have taken additional steps to integrate the protocols for the analysis of explosives and smokeless powders and to assure that examiners properly understood the role of such protocols. Before the analysis of explosives residue was transferred from the MAU to the CTU in the summer of 1994, the Laboratory had identified the need to develop guidelines for the respective roles of the two units in explosives cases. In a memorandum to MAU Chief James Corby dated January 24, 1994, Scientific Analysis Section Chief James Kearney directed Corby to meet with Martz and to develop written guidelines concerning the roles of the two units by March 4, 1994.
No written guidelines were prepared in response to Kearney's memorandum. Corby recalled that he and Martz verbally agreed that all explosives residue cases would be handled by the MAU. Corby said that he understood the CTU might continue to attempt to identify smokeless powder, but that the MAU would be responsible for combining such results with any other work done by the MAU. Martz similarly recalled that, at Corby's urging, all explosives cases were to be sent first to the MAU during an interim period in 1994.
As discussed elsewhere in this Report, the explosives residue program within the MAU was transferred to the CTU in the summer of 1994. Some time thereafter, the CTU added the MAU's explosives residue protocol to the CTU's collection of protocols. At the same time, the CTU retained its separate protocol for the identification of smokeless powders. Consequently, in early 1995 the CTU had written protocols for both explosives residue analysis and smokeless powder analysis, but there was no clear statement of the relationship between these protocols. Thus, despite the transfer of the explosives residue program to the CTU, the basic issue of integrating the protocols remained unresolved.
The protocol for the analysis of explosives residue is more comprehensive than the protocol for smokeless powders. Steven Burmeister, who in March 1995 was the only examiner in the CTU qualified in the field of explosives residue examinations, told us he believed that the explosives residue protocol should be followed in all cases involving suspected explosive materials, including cases where the device is unexploded and apparently contains smokeless powder. Kelly, when interviewed in December 1995, said he understood the explosives residue protocol to apply to the examination of residues from exploded devices. Kelly maintained that the smokeless powder protocol would be sufficient in particular cases, such as Shaw, where the auxiliary examiner is asked merely to identify smokeless powder.
Martz, as unit chief, should have assured that the protocols were integrated. Moreover, he should have confirmed that his examiners understood that the identified protocols were not merely guidelines to be followed at the examiner's discretion. Standardized protocols, by their nature, should normally be followed in cases to which they apply. If for some reason a departure from those protocols is appropriate, that fact and its underlying rationale should be recorded in the case file.
We also find that Whitehurst makes a valid point in noting that the analysis done in the Shaw case may not have identified substances present in addition to smokeless powder. This point relates to our comments concerning the relation between the smokeless powder protocol and the protocol for the analysis of explosives residue. Under the latter protocol, a water extraction would be made and analyzed by high performance liquid chromatography (HPLC) and capillary electrophoresis to identify inorganic materials that may be present. Inorganic materials might not be detected by the GC/MS and FTIR analyses called for under the smokeless powder protocol.
In analyzing the smokeless powder in the Shaw case, Kelly did examine the material with a microscope. He told us that he did not observe anything other than the particles of what appeared to be smokeless powder. It is conceivable, however, that some other inorganic materials were present which, if not identified in the microscopic examination, might also have escaped detection through the GC/MS and FTIR analyses that Kelly performed.
On a related point, we think the Shaw case suggests a general need to clarify the respective roles of the CTU examiner, in this case Kelly, and the EU examiner in identifying procedures to followed. Kelly recalled that he understood Heckman to have requested only a confirmation that smokeless powder was present and a possible identification of its manufacturer. Heckman, although agreeing that he might have made this request, said that he thought the auxiliary examiner generally should determine the range of tests to perform, as that person has the appropriate expertise.
In the area of explosives residue analysis, we think the auxiliary examiner must take responsibility and make the final decision on the procedures necessary for the case. A principal examiner from the EU, or other units for that matter, generally will lack the specialized knowledge to decide what particular analyses should be done. The principal examiner should of course participate in that decision by providing appropriate information to the explosives residue examiner.
We conclude that Kelly did not violate FBI policies by his work on the Shaw case. Nor do we find that Martz violated any policy by assigning Kelly to work on the case.
The case does suggest that the Laboratory should improve its practices in the following ways:
(1) the protocols within the CTU for explosives residue analysis and smokeless powder analysis should be integrated;
(2) the CTU should assure that its examiners recognize that standardized protocols are to be followed in applicable cases, unless there is a noted reason for departure; and
(3) the roles of examiners in the EU and the CTU should be clarified to state that it is the explosives residue examiner who remains ultimately responsible for deciding the particular procedures to use in analyzing explosives residue.