Frederic Whitehourst
FEW WASHINGTON employees suffer from a more odious legacy than the Federal Bureau of Investigation, whose pillbox-like headquarters on Pennsylvania Avenue still carries the name of its founder and director-for-life, J. Edgar Hoover.
Unfortunately for the dedicated majority, there’s still a small holdout corps of Hoover clones inside the building, as exemplified by the bureau’s ham-handed conduct at Waco, Texas, and Ruby Ridge, Idaho, and the videotaped attendance of some FBI agents at a “no niggers” law officers’ barbecue in Tennessee last summer.
At last, however, Attorney General Janet Reno and FBI Director Louis Freeh appear ready to root out the rot.
One of thorniest battles they’re taking on is the FBI crime lab, whose awesome reputation was tarnished in the last hectic days of the O.J. Simpson trial when a veteran agent surfaced to charge that the lab had been rigging its reports for years.
FBI Special Agent Frederic Whitehurst, some may remember, was the briefly ballyhooed “mystery witness” that Johnnie Cochran promised would blow the trial testimony of an FBI lab official, Roger Martz, out of the water. Mr. Martz had testified that the presence of a preservative in blood samples found on the Simpson estate didn’t mean that Los Angeles police had planted the evidence.
But for years, it was reported, Mr. Whitehurst, the lab’s top chemist, had been complaining internally about Mr. Martz and other FBI lab officials. When Mr. Cochran was tipped off that Mr. Whitehurst had given a sworn deposition questioning Mr. Martz’s reports in the World Trade Centerbombing case, the agent was subpoenaed to testify in Los Angeles.
As it turned out, Judge Lance A. Ito refused to allow Mr. Whitehurst’s testimony, and the much-anticipated fireworks fizzled. Mr. Whitehurst’s allegations, however, haven’t been dropped. They’re ticking like a time bomb inside the Justice Department, where a special investigative panel is studying evidence that top FBI lab officials slanted or mishandled evidence in as many as 1,400 cases over the years, including the alleged attempt to assassinate former President George Bush in Kuwait in 1993 and the upcoming trial of Timothy F. McVeigh in the Oklahoma City bombing.
Mr. Whitehurst, informed sources said, has been contacted by Mr. McVeigh’s lawyers to testify that Mr. Martz mishandled evidence in the Oklahoma City case.
Reached at FBI headquarters, Mr. Martz declined to comment on the allegations, recorded in a series of more than 70 impassioned memos Mr. Whitehurst wrote to the FBl’s inspector general and other officials beginning in 1983. Mr. Martz, who has an undergraduate degree in biology, has never been charged with any wrongdoing at the lab.
An intense, mustachioed, decorated Vietnam combat veteran with a Ph.D. in chemistry from Duke University, Mr. Whitehurst was the FBl’s top explosives expert until last summer, when he was demoted to examining paint samples by superiors who had tired of his complaints.
Violating the law
The gist of his charges is that FBI lab officials have been changing his reports for years without telling him, taking out any evidence that might cast doubt on a suspect’s guilt — which is not only a violation of scientific ethics but a serious violation of federal criminal law. That was what he complained about in the World Trade Center case, and eventually forced the FBI to admit.
In the last week of September, lawyers for all sides in the Simpson case, including Justice Department officials, assembled in a closed hearing room at the Los Angles County Courthouse to take Mr. Whitehurst’s statement.
There, defense lawyers were astonished to read an FBI memo, and hear Steve Robinson, the FBl’s associate general counsel, brashly reassert the prerogative of lab officials to sanitize Mr. Whitehurst’s reports.
“He said that if there was too much information favorable to the defense [in a lab report] it could be taken out,” one of the lawyers recalled. ” They conceded reports were changed. lt was a way of concealing exculpatory information that the defense would find very useful.”
The record of the meeting, and associated government documents, was sealed at the request of the Justice Department.
But it contains another bombshell that has gone unreported until now: that four FBI blood experts had complained that Mr. Martz had “committed perjury” during his testimony in the Simpson trial. That memo, too, has been sealed.
Mr. Martz, again, would not discuss the allegation during several phone calls to his office and home. Mr. Robinson has recently left the FBI and did not return a phone call seeking comment.
“The whole thing was amazing,” recalled one participant. The meeting had hardly begun when an FBI agent barged in and told Mr. Whitehurst that his wife would have to leave the room.
“Point her out, why don’t you?” Mr. Whitehurst, an 18-year FBI veteran, said.
The agent gestured at a female member of his lawyer’s team.
“Well that’s not Mrs. Whitehurst,” the lab expert said, smiling. “Mrs. Whitehurst is not here.”
When the embarrassed agent left, Mr. Whitehurst explained to the roomful of puzzled lawyers that he had bought airline tickets for himself and his legal team with his wife’s credit card; the FBI had apparently poked into the airline’s computers, fielded a surveillance team, and mistakenly concluded that the female legal assistant traveling with them to Los Angeles was his wife.
Bringing in experts
All this will be reviewed by the special panel of experts and prosecutors assembled by the Justice Department’s inspector general, Michael R. Bromwich, who has appointed a sharp new arrival to ride herd on the investigation. David Frederick, 34, once handled complex international investigations for the blue-chip Washington law firm of Shearman and Sterling, but his main attribute may be that he’s new to this turf.
After all, Mr. Whitehurst had been writing to the inspector general for years without results.
The panel includes five of the world’s top forensic scientists, including Gerard Murray of the Northern Ireland Forensic Science Laboratory, a highly respected explosives expert. The four federal prosecutors on the panel are all highly experienced; three of the four are from outside Washington.
With this, Mr. Whitehurst has already gained a victory: For years, he had agitated for an outside, independent review of the FBI lab, which top officials resisted but which is standard procedure at other scientific establishments.
The panel is scheduled to present its findings to the Senate Judiciary Committee in the spring. “It’s being taken very seriously,” said an informed Capitol Hill source — and not just for the implications the findings may have for the FBI.
“It’s in the interest of all citizens,” he said. Most defendants don’t have the resources to investigate whether a solemn, well-tailored FBI lab expert on the stand is telling the truth. As every lawyer knows — and as every expert witness knows — it’s almost unheard of for juries to doubt the testimony of an FBI agent.
But for years, Mr. Whitehurst charges, the lab’s unstated credo was to shave its reports in a way that would help agents solve cases. Instead, he maintains, the lab should let the evidence speak for itself: If a trace of ammonium nitrate is found in a room, it doesn’t automatically mean a bomb was constructed there. Somebody could have spilled oven cleaner, or plant food, or a dozen other things. All that has to go into a forensic scientist’s lab report. It’s the job of the lawyers and juries to sort it all out, not the lab.
Mr. Whitehurst has no shortage of critics inside the FBI, who call him “a nut,” “a loose cannon,” “a head case,” or worse.
Sen. Arlen Specter of Pennsylvania, a ranking Republican member of the Judiciary Committee, said he “had very good experiences with the [FBI] lab” when he was a prosecutor himself. But after hearing disturbing testimony from another lab official during congressional hearings on Ruby Ridge, he called Mr. Whitehurst to Capitol Hill for a personal interview.
“I really couldn’t give you a meaningful evaluation based on a single meeting,” Mr. Specter said in an interview, “but they’re certainly worthy of being checked out.”
The implications of Mr. Whitehurst’s charges, if true, are incalculable. Hundreds of convictions involving the FBI lab could be reopened.
“Trials are not supposed to find people guilty, they’re supposed to find the truth,” says Mike Hubbard, a former Green Beret in Vietnam, and now a Senate Judiciary Committee lawyer.
“People forget that.”
Jeff Stein is the author of “A Murder in Wartime: The Untold Spy Story that Changed the Course of the Vietnam War.” He writes frequently on criminal justice.