SECTION H10: THURMAN'S ALLEGED ALTERATION OF DICTATION
As explained in Part Two, supra, although many examiners from different units in the FBI Laboratory may work on a given case, the Laboratory requires one of the examiners (the principal examiner or APE ) to issue the official Laboratory reports in the case. The other examiners (the auxiliary examiners or AAEs ) submit their reports (Adictation ) to the PE for incorporation in the official report. Whitehurst alleges that during the period 1987-92 SSA J. Thomas Thurman, as PE, presented altered versions of Whitehurst's AE dictation in some of the reports. Also, SSA Steven Burmeister alleges that Thurman, as PE, included inappropriate conclusions in a report on a 1993 case in which Burmeister was AE.
To investigate these allegations, we interviewed Thurman, Whitehurst, Burmeister, James Corby (former MAU Unit Chief), J. Christopher Ronay (EU Unit Chief 1987-94), Kenneth Nimmich (SAS Chief 1987-93), James J. Kearney (SAS Chief 1993-95), and other FBI Laboratory personnel. Additionally, we reviewed applicable FBI documents.
It is undisputed that many of Whitehurst's dictations were not included verbatim in Thurman's reports during the period 1987-92. Thurman maintains that before 1993 there was no firm policy requiring verbatim inclusion of AE dictation, that he had no sinister motive in writing the reports as he did, and that his only intent was Ato try to make the reports more understandable by lay people. As explained below, we conclude that Thurman did not engage in willful misconduct with respect to Whitehurst's dictation, but we do find that some of Thurman's reports contained ambiguities and other errors. We also conclude that Unit Chief Ronay failed to enforce the FBI policy of requiring verbatim inclusion of AE dictation in reports.
With respect to Burmeister's allegation, we conclude that Thurman should have revised his report in accordance with Burmeister's objections and that Kearney was remiss in failing to take action once he learned of the objections.
We address the Whitehurst (Section II) and Burmeister (Section III) issues in turn, and then state our conclusions (Section IV).
II. Alteration of Whitehurst's Dictation
On November 27, 1992, Laboratory examiner Kelly Mount (formerly Hargadon) told Whitehurst that Thurman told her that Thurman, as PE, had changed Whitehurst's AE dictations before including them in the official reports. Mount told the OIG that Thurman said he had Astreamlined the dictations. In December 1992 Whitehurst obtained sixteen reports Thurman had written with Whitehurst as the AE, and found that many of the reports did not include Whitehurst's dictation verbatim. He wrote a memorandum containing his findings and submitted it to Corby, his Unit Chief. The memorandum asserted that several of the reports Achanged the meaning or significantly altered the content of the dictations.
Corby discussed the matter with SAS Chief Nimmich, who asked Corby to meet with Ronay and Thurman and resolve the matter at the unit chief level. On December 10, 1992, Corby personally told Thurman not to alter any MAU dictation. On December 14, 1992, Corby reported back to Nimmich. At his OIG interview, Corby could not recall any further action taken with respect to Whitehurst's memorandum.
On February 7, 1994, Whitehurst's personal attorney wrote a letter to the FBI Office of General Counsel (FBI OGC) setting forth numerous allegations against the FBI Laboratory, including the claim that Thurman had altered Whitehurst's dictation. The FBI OGC completed a preliminary review of the allegations on May 26, 1994. The Director of the FBI concurred in the FBI OGC's recommendations, which were transmitted to the head of the Laboratory on June 8, 1994. With respect to the claim of alterations of dictation, the FBI OGC recommended that all of the past dictations of Whitehurst and Burmeister be compared to the applicable final reports Ato ensure there were no changes. If changes were made, appropriate action should be taken to correct any substantive errors in the reports.
In response to the FBI OGC recommendations, SAS Chief Kearney assigned Corby to review all of the dictations and reports in which Thurman was the PE and Whitehurst the AE. On September 7, 1994, Kearney wrote a memorandum to Laboratory Director Milton Ahlerich, in which Kearney stated that the review had begun and would be completed by October 15, 1994. Kearney stated that A[following some review, it appears that the practice [of altering AE dictations] is isolated to one Explosives Unit Examiner, SSA James T. (Tom) Thurman.
On November 4, 1994, Kearney wrote another memorandum to Ahlerich stating that Corby's review of Thurman's reports had been completed, with the following findings: Of the fifty-two reports in which Thurman was the PE and Whitehurst the AE, twenty dictations were found to be unaltered; eighteen were altered but not significantly; thirteen were altered resulting in a change of the meaning of the dictation; and one report did not contain an altered dictation but did have another mistake.
In December 1994 and January 1995, Kearney, SSA Steven P. Allen, and Corby independently analyzed the thirteen cases with altered dictations, and wrote memorandums of their findings. Kearney concluded that Athe alterations made to SSA Whitehurst's dictation by SSA Thurman were not done to bias the reports in favor of the prosecutions but were done simpl[y] to clarify the reports by integrating the findings of SSA Whitehurst into the full context of the report. Kearney recommended no administrative action other than the oral counseling of Thurman not to alter the dictations of AE examiners. Allen also concluded that no administrative action was warranted. Corby, on the other hand, recommended that AThurman be held accountable for the unauthorized changes . . . by administrative action to include both oral reprimand and a letter of censure.
On April 12, 1995, Thurman responded to the allegations in a memorandum, asserting that he did not willfully violate FBI policy and that his Unit Chief was aware of what he did.
On May 22, 1995, Kearney submitted a memorandum to Ahlerich. Kearney wrote that the three reviewers recommended: (1) that the policy of not changing dictation be Are-emphasize[d] with the Explosives Unit; (2) that the OGC review the matter to determine what should be done with the altered Laboratory reports; and (3) that the FBI Office of Professional Responsibility (OPR) review the matter for any appropriate action. Corby told the OIG that he agreed to this memorandum without recommending an oral reprimand or letter of censure because Kearney told him that such recommendations would be inappropriate.
Ahlerich and the FBI General Counsel approved the recommendations in Kearney's May 22, 1995, memorandum.
Kearney stated in his May 22, 1995, memorandum to Ahlerich that, of the fifty-two cases in which Thurman was the PE and Whitehurst the AE, Ait was determined that in twelve (12) case reports, SSA Thurman significantly altered SSA Whitehurst's dictation. In one other report, SSA Thurman reported technical results without supporting laboratory analysis. We have reviewed the reports and dictation in these thirteen cases, and we present our analysis of them below. First, however, we discuss the FBI policy that AE dictations be included verbatim in the PE's official report.
1. The Verbatim Inclusion Rule
The evidence establishes that during the applicable period (1987-92) the policy of the Laboratory was to include AE dictation verbatim in the official Laboratory reports, but Unit Chief Ronay did not always enforce the policy in the EU.
On September 1, 1994, the Director of the Laboratory issued a memorandum explicitly requiring verbatim inclusion of AE dictation in the official reports. Although there was nothing in writing on the subject before this, the memorandum purported to be a Arestatement of long-standing policies. Before September 1, 1994, the policy of verbatim inclusion of AE dictation was, in the words of the OGC, Aan unwritten LD [Laboratory Division] rule. See also October 7, 1994, letter by Associate General Counsel John T. Sylvester (AOGC contacted the LD management regarding this allegation who advised that the LD had a longstanding policy prohibiting any changes in AE dictation by the PE without the express permission of the AE ); December 15, 1994, memorandum from Kearney (Ain October 1994, the longtime understood practice of not altering AE dictation without the permission from the AE examiner was stated as policy for the entire Laboratory Division ); January 13, 1995, memorandum from Corby (AIt has always been understood practice (perhaps not written policy) that PEs do not change/alter/reword/revise AE dictation without consulting with and receiving permission from the AE, or their respective Unit chief in combination with the AE ) (emphasis in original). Nimmich, the SAS Chief during the pertinent period (1987-93), stated that SAS policy was to incorporate auxiliary examiner reports verbatim; the policy was Aingrained in the Laboratory.
In his OIG interview, Ronay testified that throughout his career in the FBI Laboratory (1977-94) Ait was a general policy that the dictation by any auxiliary examiner or AE would stand on its own and would not be changed without his knowledge or his permission. He continued:
OIG: . . . Just your own understanding. It has always been the policy that you do not change the findings of an AE.
OIG: You put them in there exactly the way he wrote it?
OIG: Exactly the way he wrote it --
RONAY: Well, yes.
OIG: -- or do you change it around, I mean, just to make it sound better.
RONAY: No. You wouldn't do that. Well, that would be ridiculous, wouldn't it.
Ronay believed that Nimmich did not allow the changing of dictation: AHe enforced the policy as it was. A[T]he management, according to Ronay, Anever gave us permission to . . . unilaterally eliminate something.
Ronay was equivocal as to the propriety of omitting dictation from a report. At one point in the interview he acknowledged A[t]hat it would not be proper to leave it out in its entirety. Ronay, however, also stated:
[A] confirmatory type of test, you might not even include it.
That was something that was, I say, allowed, was normally -- it was acceptable depending on what, you know, what it was. Now, if it was a scientific test that had to go towards something you knew was discoverable type scientific material, you put it in there. . . . [T]he policy on it or the enforcement on it were a little drifty over the years.
Ronay often approved omitting portions of AE dictation that Awere not substantive to the findings, but did not think he would have approved leaving out a dictation in its entirety. Ronay stated that he allowed all the examiners in the EU to change Whitehurst's dictation, but he could not recall allowing anyone to change the dictation of another AE. Ronay stated that the reason he allowed Whitehurst's dictation to be changed was that he thought the dictation sometimes included a description of the instrumental analysis that was Aconfusing and the dictation sometimes included matters outside Whitehurst's area of expertise.
2. The Cases
An analysis of the thirteen cases identified by Kearney show that Whitehurst's dictation was not included verbatim, and in some cases Thurman's reports were ambiguous and contained other errors.
a. Case 20624009 (1992)
Laboratory Case 20624009, written in 1992, is illustrative. In that case Whitehurst's dictation stated:
RESULTS : The results of chemical and physical analyses of specimen Q1 are consistent with the presence of ammonium nitrate. Ammonium nitrate is one of the two components used in binary high explosives.
The results of chemical and physical analyses of specimen Q2 are consistent with the presence of nitromethane. Nitromethane is one of the two components used in binary high explosives.
The results of chemical and physical analyses of specimen Q4 are consistent with the presence of pentaerythritol tetranitrate (PETN) high explosive. PETN is used in detonation cord.
(Emphasis added). Thurman's report stated:
Present in specimens Q1 and Q2 are the two components which comprise the Kinestik two-component explosive system. The white powder, which was identified as ammonium nitrate, for this explosive is contained within a white plastic container in specimen Q1 and is labeled by the manufacturer AKinestik 1 Solid . . . .
The second part (liquid) of this two-component system is present in specimen Q2 and contained in a clear plastic tube and labeled by the manufacturer as Akinapouch Kinestik 1 Liquid . This liquid, which is red in color, was identified as nitromethane. . . .
Present in specimen Q is a 28 1/4 length of Austin AA-Cord detonating cord having a high explosive core load of 25 grains per foot of PETN.
(Emphasis added). No further mention of Whitehurst's dictation is in the report.
The difference between the dictation and the report is significant. When an examiner concludes that results are Aconsistent with the presence of a substance, he is expressing an expert opinion that the substance may be present in the specimen, but not necessarily (because he has not confirmed it). Such a conclusion is equivocal. When an examiner Aidentifie[s] the presence of a substance, or states that the specimen Aha[s] a substance, he is expressing an expert opinion that the substance is definitely in the specimen.
Obviously, Whitehurst's dictation was not included in Thurman's report verbatim, and it appears that Thurman misreported or changed the analytical conclusions Whitehurst had reached.
Thurman's response is that the opinions expressed in his report were his own. He chose to omit Whitehurst's dictation entirely.
Thurman explained that Specimens Q1 and Q2 were the two components which
comprise the Kinestik two-component explosive system, were in their original packaging, and showed no signs of tampering. Based on his A25+ years of explosive experience, touring factories where these actual materials were manufactured, and the manufacturer literature in the unit Explosive Reference Files (ERF), he knew what the specimens contained, and thus he could Aidentif[y] the substances in the specimens. Thurman stated that he referred the specimens to the AE only to Aconfirm conclusions he had already drawn. He felt the Aconsistent with results did confirm those conclusions, and thus he wrote his report as he did.
Thurman stated that during this period he had an arrangement with Whitehurst for Aconfirmatory exams in which Whitehurst would not perform all the tests necessary to make an identification. When Whitehurst reached a conclusion of Aconsistent with in these exams, Thurman assumed the reason was that Whitehurst had not run all the tests necessary for an identification. Whitehurst, however, did not recall having such an arrangement.
Thurman acknowledged in his OIG interview that Ain retrospect it would have been better to include the AE dictation even though it was only Aconfirmatory, but he thought he could do it the way he did because his Unit Chief approved of it.
Thurman also acknowledged that the phrase Awhich was identified was Aambiguous because it did not indicate who made the identification and because it could have been misconstrued as an instrumental identification. Thurman insisted, however, that in all the cases, including this one, Athere was no attempt, absolutely, on my part whatsoever to mislead anyone.
Thurman also acknowledged Aon hindsight and with the standards that we have today that it is inappropriate to positively identify a substance, as he did in this case, solely from the physical characteristics and the fact that the substance was in its original packaging.
Thurman's response is basically the same with respect to Specimen Q4, the detonating cord. From its physical appearance Thurman recognized the specimen as a particular detonating cord manufactured by Austin Powder Company, which uses PETN in this particular cord according to the ERF. Hence, he believed, as an expert in explosives, he could say that the cord Aha[d] PETN, when Whitehurst found the instrumental results Aconsistent with PETN.
Based on the packaging, absence of evidence of tampering, physical characteristics, and Thurman's experience, we conclude that he could reasonably and properly presume that the specimens were what they appeared to be. Nevertheless, as Thurman largely acknowledged, his report was poorly drafted in several respects. First, it not only failed to include the AE dictation verbatim, it omitted it entirely. This was contrary to an unwritten FBI rule, but was apparently sanctioned by Thurman's unit chief.
Second, the report was misleading. We cannot reject Thurman's OIG testimony that he had no intent to mislead, but the reader could easily assume that when the report said a substance was Aidentified, this meant the substance was identified scientifically. Thurman should have stated explicitly in the report that the Aidentification was made from the packaging and physical characteristics.
Third, it was imprecise for Thurman to say he had Aidentified the substances. In a forensic science sense, the only way to identify a chemical material is by some defensible form of analysis. Just recognizing the packaging and physical characteristics is insufficient.
Fourth, the arrangement that Thurman claims he had with Whitehurst, in which Whitehurst would not perform all the tests necessary to reach a positive identification, was inadvisable. Because Whitehurst presumably did not run all appropriate tests and could only say the results were Aconsistent with the presence of the substances, he did not really Aconfirm Thurman's understanding as to the substances' identities. Had Whitehurst conducted a full analysis, he presumably could have made positive identifications, which would have mooted the issues raised by this case.
Finally, Thurman acknowledged that his report, in part, did not meet Athe standards that we have today. We note that the report here was written in 1992 and that the standards then were not significantly different from the standards now.
b. Case 80803018
In this case the dictation stated that the results for certain specimens were Achemically consistent with PETN and TNT. Thurman's report stated that one specimen contained a powder Aidentified as PETN and the other specimen Acontain[ed] TNT. Thurman explained that his language was based on reports from a Spanish laboratory. He acknowledged that he should have stated the source of his identifications in the report.
The report also stated that two specimens Aare from the same source, although the AE dictation only says one sample Aresembles the other. The two samples had some common characteristics (same waxes and percentage of aluminum), but there is no basis in the reports to conclude that they were necessarily from the same source. In his OIG interview, Thurman could offer no explanation for his statement that the specimens came from the same source.
We conclude that this report is deficient because it failed to mention the Spanish laboratory and because it contained an unsubstantiated conclusion that two of the specimens came from the same source. Additionally, Thurman erred in his 1995 response to the allegations when he stated that the meaning of the dictation was not changed.
c. Other Cases
The other eleven cases present issues similar to those presented above.
In Case 70928045 (1987) the dictation stated that ASpecimen Q4 has the chemical and physical characteristics of C-4 and AWhite powder found in specimen Q6 has the physical and chemical characteristics of . . . PETN. The report stated that C-4 was Aidentified and Q6 Acontain[ed] PETN. Thurman felt he could use this language because he recognized both specimens from their distinctive physical characteristics--specimen Q4 was labeled ADemolition M112 and specimen Q6 was a particular detonating cord made by the Coast Fuse Company.
In Case 90823043 (1989) the dictation stated, AIt is the opinion of this examiner that the residues in Q6 originated from a low explosive mixture which contained Pyrodex. The report stated, APresent in specimen Q6 are explosive residues which chemical analysis show to have originated from a low explosive mixture which contained Pyrodex. Thurman insisted that he did not eliminate the language concerning the AE's opinion to avoid the suggestion that there was an examiner, in addition to the EU examiner, that might have to testify.
In Case 81108029 (1988) Thurman replaced the phrase Aconsistent with TNT with Adetermined to be TNT because he recognized distinctive flakes of TNT. Thurman acknowledged that based on his 1996 standards he would not make a positive identification solely on the physical appearance of the TNT.
In Case 20416043 (1992) reference to Achemical and physical analyses and the chemical name for RDX were eliminated. Both the dictation and report used the word Aidentified. The changes here were not material.
In Case 20618039 (1992) Thurman identified the specimen as a particular military blasting cap and stated in the report that it contained lead styphnate and lead azide, although the AE did not test for these substances. Thurman acknowledged that Alogically it would have been better only to say that such chemicals Anormally are in the particular blasting cap.
In Case 80217150 (1988) the dictation stated that the specimen, from a blasting cap, had the Achemical and physical characteristics of a mixture of certain chemicals, while the report stated that the specimen was a blasting cap Acontaining the chemicals. Thurman explained that when he extracted the chemicals from the cap they Acommingled. Thurman acknowledged as a Apoint well taken that he could have stated that the AE found a Amixture but that the mixture occurred in the extraction process.
Case 90623042 (1989) involved, according to Thurman, Aan oversight by him, in which he stated that the analytical results were Aconsistent with the presence of PETN when the AE stated that the results Aidentified the presence of PETN. Of the thirteen cases analyzed in this subsection, this is the only one in which Thurman Aaltered the dictation to make the findings less definite. On the surface, the change here would seem to rebut the notion that there was a pattern of overstating the significance of the AE's dictation. Upon analysis, however, this case seems to be Athe exception that proves the rule. According to Thurman, all the alterations except this one were intentional. But for Thurman's Aoversight, the pattern would be unvarying.
In Case 91207016 (1989) the dictation stated (1) that the results of the analyses were Aconsistent with residues of certain chemicals and (2) that A[i]t is the opinion of this examiner that the explosive was most likely a homemade mixture of those chemicals Aand an undetermined fuel. The report stated that the results of the analyses were Aconsistent with residues of the chemicals Aand an undetermined fuel. By combining the two sentences in the dictation into one sentence in the report, Thurman implied that the AE found residues of the undetermined fuel, which was incorrect. Additionally, the report stated that Athe absence of identifiable remains could indicate that a non-electric means of main charge initiation was used. Explosives residue examiners maintain that such initiators do leave identifiable remains. Thurman now reports that no Aconstruction materials can be recovered from such initiators. The problem here may have derived from the word Aremains, which Thurman used to mean unconsumed materials and the explosives residue examiners interpreted to include residue from consumed materials.
In Case 71224001 (1987) the discrepancy between Whitehurst's dictation and the report was explained by the fact that Thurman also used an AE from the CTU in addition to Whitehurst. Also, Whitehurst's language (the specimen Ahad the chemical and physical characteristics of a substance) was changed to the specimen Awas determined to be the substance. Thurman claimed not to believe he was changing the meaning of the dictation.
In Case 91130017 (1989) Thurman supervised an agent-in-training who wrote a report that substantially altered the AE dictation in several respects (e.g., Aconsistent with residue of certain powder was changed without authorization or justification to Aoriginated from the powder). Thurman acknowledged his Aresponsibility for these errors. Thurman also erred in his 1995 response to the allegations when he stated that the AE dictation Awas not changed.
In Case 21118013 (1992) Thurman stated that the only explosive constituent of U.S. military C-4 is RDX. This is incorrect. HMX is also a component. Thurman stated he omitted mention of HMX Aso that it would not be misunderstood by the reader -- a reason we find unpersuasive.
III. Burmeister's Allegation
Case 30422012 involved the explosion of a pipe bomb in the school library of the William Wirt Middle School. Burmeister, as AE, examined wood and book fragments that were struck by the bomb, and he found residues that he subjected to instrumental analysis. His results were Aconsistent with residues Aformed upon the initiation of some black powders. Burmeister did not examine the recovered metal fragments (which were presumably from the pipe of the pipe bomb) apparently because Thurman sent them to the fingerprint section instead of to Burmeister.
Thurman, as PE, stated in his report:
Present in the submitted specimens are the fragmented remains of an exploded Improvised Explosive Device/pipe bomb (IED) which utilized a low explosive main charge, consistent with black powder, that was contained within a sealed length of metal tubing. Although not present in the submitted specimens, this device was logically initiated through a nonelectrical fuzing system consisting of a length of burning-type fuse. Fuse of this type, such as, hobby or fireworks fuse, consumes its length when burning and leaves little, if any, residues or unburned fuse which can be recovered following the explosion of the IED.
Before this report was issued, Burmeister complained to Thurman about two aspects of the passage quoted above. First, Burmeister disagreed with the statement that the main charge was Aconsistent with black powder, since Burmeister did not examine the pipe fragments and the residue on the wood and books could have come from the fuse. Second, Burmeister disagreed with the statement that a Aburning-type fuse . . . leaves little, if any, residues. Thurman, however, chose not to change the report. Burmeister also complained to Kearney about these matters. Nevertheless, the report went out unchanged, and nothing was ever done about it.
As to the issue concerning the main charge, Thurman acknowledged in his OIG interview that the residue found by Burmeister could have come from the fuse. As to the issue concerning the fuse, Thurman stated that he only meant that such fuses do not leave any Aunconsumed fuse, not that they would not leave Arecoverable explosive residue. Thurman acknowledged he should have said Aconstruction materials instead of residue.
We conclude that Burmeister's objections were valid and Thurman should have revised the report accordingly. We further conclude that Kearney erred when he took no corrective action after Burmeister informed him of the objections.
We conclude that Ronay improperly allowed EU examiners to revise dictation without consulting the AE. Kearney recognized that Ronay's inadequate review of reports contributed to the problem of Thurman's revision of Whitehurst's dictation. We also note that during Ronay's tenure as EU Chief, another EU examiner (Higgins) also altered Whitehurst's dictation in many of the same ways Thurman did. See Part Three, Section H11, infra. Ronay, however, had already left the FBI by the time Corby finished his review of Thurman's reports. During Ronay's last month in the FBI, Kearney authored a memorandum issued by Ahlerich requiring thorough substantive review of reports by unit chiefs and verbatim inclusion of AE dictation.
Of the fifty-two reports written by Thurman in which Whitehurst was the AE, only twenty included the dictation verbatim. This violation of the Aunwritten LD rule is attributable largely to Ronay. We conclude that Thurman is also responsible (1) for ambiguities and errors in his reports and (2) for not revising his report in the William Wirt Middle School case in accordance with Burmeister's objections.
Although there seems to be a pattern here of overstating AE dictation, which normally would be favorable to the prosecution, we do not find that Thurman intended to write reports with a prosecutorial bias. We recognize the responsibility of the PE to produce a report to the submitting agency for investigative purposes providing as much information as possible within the constraints of reasonable scientific principles. The report should convey an expert opinion based upon all information available in a form that is understandable to the layperson and scientifically accurate. Thurman asserts that his only intent was to fulfill this responsibility, and there is no concrete evidence to the contrary. Nevertheless, the alterations to the dictation that we have identified were inappropriate and could have misled the finder of fact.
We also conclude that it would have been preferable for Nimmich to have done in 1992 what was later done in 1994-95 -- namely, (1) requiring a review of all of Thurman's reports in which Whitehurst was the AE, and (2) putting in writing the rule requiring verbatim inclusion of dictation.
As to Kearney, we conclude that he should have directed that a revised report be issued in the William Wirt Middle School case. We do not find fault with his handling of the Whitehurst allegations because the main person responsible was Ronay who had already left the FBI by the time the review was completed. On the other hand, it appears that Kearney was incorrect in his conclusion that the practice of altering AE dictation was Aisolated to Thurman. See, e.g., Part Three, Section H11, infra.
Finally, as discussed in Part Six, infra, we recommend that each examiner submit and sign his or her own report. Adoption of this recommendation would alleviate the problems identified in this section.