RESPONSE BY: FBI SUPERVISORY SPECIAL AGENT ROGER MARTZ , February 4, 1997
Reply to IG report from Roger M. Martz
At times employees of the FBI are called upon to perform duties which are far beyond what are required of them. The majority of the work for which I have been criticized involves cases in which I and others at the FBI went far beyond our normal duties. Throughout my career in the Laboratory, the majority of my performance appraisals, made by several different supervisors, have been exceptional. It is noteworthy that even after the allegations against me, my latest performance appraisal was an exceptional rating.
In the SIMPSON case, the FBI Laboratory was asked to perform an analysis for which the Los Angeles County Laboratory did not have the capabilities As it turned out, the requested EDTA analysis in blood had not been performed by any Forensic Laboratory previously. I and other FBI employees worked long hours to develop a procedure for EDTA analysis in blood stains. When it was determined that the FBI had the capability to perform the requested analysis, FBI management agreed to work the case and assigned the analysis to me. I arranged for the evidence to be delivered to the Laboratory, and I and a Research Chemist went in on the weekend to perform the analysis.
After spending two days on the stand in the most grueling testimony of my career in a nationally televised case, I am now criticized in the IG preliminary report for the usage of certain words, lack of preparedness and demeanor. In testifying it often happens that people under extreme pressure don't perform to their maximum.
The IG's opinion differs somewhat from some individuals at the FBI. The Director took time out of his busy schedule to call me to his office and inform me that he had watched me testify. He then congratulated me on my testimony. The Assistant Director of the Laboratory gave me a letter of gratitude for my work on the SIMPSON case. This letter was written after the letter from Mr. Nimmich to Mr. Ahlerich which unfairly criticized my testimony. On 5/17/96, I received an exceptional performance rating from the Section Chief Dr. Murch. In this appraisal, Dr. Murch specifically mentions my testimony in the SIMPSON trial.
With these discrepancies between the IG's opinion and that of the Director, a different way to characterize my testimony could be to say that the main allegations of perjury were completely unfounded, that as a whole the testimony was unexceptionable but that Mr. Martz should have chosen better ways of answering several questions.
In the TRADEBOMB case Mr. Lasswell was the examiner in CTU assigned to this case. It was Mr. Lasswell's dictation that urea
nitrate was identified. I never provided dictation for an FBI report in this case. As Unit Chief, I was responsible for assuring that no administrative errors were present on SA Lasswell's dictation. When Laboratory management decided that all explosive residue dictation, in this case, was to be reviewed by the Materials Analysis Unit, no objections came from CTU.
When assigning and reviewing cases, I take many things into account to include the magnitude of the case and the experience of the examiner. Mr Lasswell was the senior examiner in CTU with approximately 20 years of experience. Mr Lasswell was given proportionately more difficult cases because of his experience, attitude, demeanor and his attention to detail. Ever since I began reviewing Mr Lasswell's cases in 1989, I do not remember ever asking him to change his conclusion. Also, Mr. Lasswell always passed the proficiency tests he was assigned.
The IG's characterization of my role in this case appears to be overstated. I suspect that my reluctance to concede to the inadequate identification of Urea Nitrate was mostly due to the hostile treatment I was given by Mr. Cartwright and the fact that I was not prepared to defend Mr. Lasswell's work. Hopefully I will be given the time to review my transcript on the urea nitrate questioning and Mr Lasswell's notes before a closure is brought to this matter.
It is unfortunate, but it is almost impossible for a reviewer to have all the insights of the original examiner in a very complex case. I think this is best exemplified in the review Mr. Whitehurst did of Mr. Lasswell's work on the TRADEBOMB case and the mistake I found in Mr. Whitehurst review of the identification of nitroglycerin.
In the VANPAC case, after it was determined that primer material was present in the two unexploded bombs, the CTU was asked to determine the source of the primer material. Primer material had never been sourced in the Laboratory. Again, this request goes far beyond what is expected of an examiner in the Laboratory. As it turned out, the information I provided was used by investigators in the field to search for someone who had recently purchased the materials that I identified. During this investigation, it was determined that WALTER LEROY MOODY had purchased the ingredients which I identified.
Recently, WALTER LEROY MOODY was tried in Alabama for murder. In his possession, as well as the prosecutor's, were all the available allegations against me. In spite of this, not only did the prosecutor call me as a witness, but he resubmitted some evidence because of new techniques which I had become aware of since the first trial. If the prosecutor in this case had had any doubts whatsoever concerning me, he could have had the evidence
re-examined by another expert. To show his appreciation, the Deputy Attorney General of Alabama, sent a thank you letter to me stating "This has been an intrusion into your life".
The IG's summation of my testimony in the VANPAC case appears to stress the confusion in my testimony over the comparison of smokeless powder, which did not appear to me to be a relevant issue, and did not stress the positive fact that I was cleared of perjury and fabrication of evidence.
Shortly after the responsibility of explosive residue analysis was assigned to CTU, the bombing of the Federal Building in Oklahoma City took place. The only examiner doing explosive residue analysis at that time was Mr. Burmeister. I immediately sent Mr. Burmeister and Mr. Kelly to Oklahoma City and later sent Mr. Jourdan. To complicate matters, the two technicians who could have assisted Mr. Burmeister were not available. When the first samples from Oklahoma City arrived at the Laboratory, I was the person in CTU with the most experience in trace explosive analysis. I began the analysis; however, the only reports in this case on explosive analysis were provided by Mr. Burmeister.
I tried to the best of my ability to perform certain analyses in this case. My interpretation of visual and microscopic analysis, which was part of the protocol at that time, was that if something was observed by visual examination, that microscopic analysis would be performed and that is what I did in this case.
Regarding the TREPAL case, I am criticized for overstating the significance of my analytical results in a manner similar to that of the TRADEBOMB case. Before I address this issue, allow me to reiterate that I never prepared a Laboratory report in the TRADEBOMB case. The report dictation was prepared by the case examiner Special Agent Lynn Lasswell.
In the IG report concerning TREPAL, page two suggests that similar IC results might have been derived from the addition of thallium chloride and sodium nitrate. I disagree with this statement because thallium chloride would cause an elevated response for both the chloride ion and the element chlorine in its respective IC and SEM assays.
The IG report criticizes my testimony in this case by indicating that I rendered an opinion stronger than was warranted by my report dictation. Although in my view this did not occur, the accusation is still contrary to my understanding of Rule 702 which treats the subject of opinion testimony by experts. Simply stated, I was asked for my opinion and I duly complied with that request by asserting my opinion. There is no essential difference between my opinion that thallium nitrate was added to the specimen and my report dictation that states "... is consistent with
thallium nitrate having been added...". The only identified chemical difference between the known sample and the suspect sample was the presence of thallium and nitrate in the latter. Both thallium chloride and thallium sulfate, two other available compounds, were eliminated by the tests performed. Not only is it my opinion that thallium nitrate was added, it is the only reasonable explanation for the assay results. I concur with the sentiment that all opinion testimony is not absolute and I tried to convey that thought with my answer "No, not a hundred percent exclusion" which appears on the penultimate page of my transcript.
Forensic hair comparisons demonstrate the difference when statements such as 'is consistent with' and 'in my opinion' are not intended to be synonymous. If a report dictation states that the questioned hair specimen was consistent with the. suspect's hair specimen, an expert should not testify that '...In my opinion the questioned hair came from the suspect'. This is because it is not the only reasonable explanation for the source of the hair sample in question. In my view, the statement "In my opinion thallium nitrate was added to the drink" is the only reasonable explanation for thallium and nitrate being present in the specimen and my opinion is supported by the report dictation.
Between page three and four of the IG report there is a suggestion that I should have performed a drug extraction. I disagree with that position. Drugs (chemicals) that are added to a liquid with the intent to poison are present in that specimen in higher concentrations than when those same amounts are ingested, absorbed, metabolized and distributed throughout the human body. Biological specimens, submitted as a result of drug (chemical) usage, usually mandate some form of an extraction procedure that allows the drug (chemical) to be isolated and concentrated to amounts compatible with analytical detection techniques. Spiked liquids do not mandate an extraction. Caffeine, a drug, is spiked into cola beverages by the manufacturers. I readily detected this drug through the assay methods I used. Of note, biological specimens can also be tested directly by selective immunoassay techniques that circumvent extraction. Urine drug screening programs employ this principle. Here, as elsewhere, extraction is not always mandated. It is also a truism that many more drugs (chemicals) yield SP/MS ionization data than GC/MS ionization data. The former technique is more inclusive than the latter technique due to interfacing gas chromatographic criteria that may preclude its use with certain types of drugs (chemicals). Both GC/MS and SP/MS techniques have been used by the FBI Laboratory since 1975.
Relating to page five of the IG report, I differ with the conclusion that I overstated the purity of the Q206 thallium nitrate specimen. The multiple test results acquired by analyzing that specimen with X-ray diffraction, Infrared Spectrophotometry
and Solids Probe Mass Spectrometry allowed me to infer the purity of that specimen. Any adulteration with crystalline material exceeding 15%(XRD) or infrared absorbing material exceeding 10%(IR) would have been detected by those respective tests. In addition, SP/MS would reveal parts per million contamination of a wide variety of organic substances. I maintain that I was conservative in my opinion on the estimate of thallium nitrate purity.
On the same page of the IG report, I am criticized for not stating that nitrate was found in the known Coca Cola specimen. This specimen did not give a positive diphenylamine color test. The questioned sample did give a positive diphenylamine color test. This test revealed the presence of an oxidizing agent in the questioned specimen in forensically significant amounts relative to the known Coca Cola sample. The Ion Chromatography (IC) testing of the samples further determined that the oxidizing agent response in the color test was due to large quantities of nitrate. As a result of this tandem testing, a meaningful conclusion could be drawn regarding nitrate amounts present in the questioned specimen. Strictly speaking, nitrate was spiked into the questioned specimen via some chemical.
Finally, this page issues a broad statement to the effect that I have a "...lower threshold of scientific proof than is generally accepted in forensic science". Since an opinion of this sort does not have a litmus test, it is difficult to address and either prove or disprove. The multiple testing used in this case generated a pattern of results from which I derived a meaningful conclusion based on my judgment and experience as a forensic scientist. I was asked as an expert for my opinion and under Rule 702 I am entitled to give my opinion. I did not identify thallium nitrate in the Coca Cola specimen but offered the only logical and reasonable conclusion that thallium nitrate was added to this sample. Regarding the statement "...and in certain other matters discussed earlier" that also appears on this page, I find this an indefinite reproach. I can only respond to definitive accusations.
From the beginning of Special Agent Whitehurst's allegations, I have been assigned more responsibilities by the FBI Laboratory management. Both explosive residue and paint analyses have come under my sphere of work as well as Acting Section Chief duties when Special Agent James Kearney retired. While making the effort during my FBI career, the judgment that I have exercised within the latitude of my responsibility has been recognized by my superiors. This recognition along with my work ethic in general will also be attested to by a preponderance of my colleagues.