Professionalism/Frederic Whitehurst and the FBI

Background of FBI

After a controversial court case ruling in the 1886 Supreme Court case, Wabash, St. Louis & Pacific Railway Company v. Illinois, it was determined that states had no power to regulate interstate commerce. As a result of this, the Interstate commerce Act and committee were created delegating the responsibility of interstate law enforcement to the national government. However, due to the committee’s staff and funding shortage, in the early 1900’s attorney general Charles Bonaparte moved to create a formal Bureau of Investigation (BOI), which was originally staffed by 12 secret service agents. By the early 1930’s under the leadership of John Edgar Hoover, the BOI expanded to several hundred Federal employees and was officially renamed the Federal Bureau of Investigation or FBI. In 1932, the Scientific Crime detection Laboratory was opened to provide forensic analysis for evidence such as hair, fingerprints, and is the central location of Mr. Frederic Whitehurst’s story.

Frederic Whitehurst and Michael Malone

Frederic Whitehurst had a Ph.D. in chemistry from Duke and a J.D. from Georgetown. He joined the FBI in 1982. He worked in Houston and Los Angeles as a special agent, and at this time, his biggest gripe was about how other agents padded their time cards. When he was moved to the lab to be the top explosives-residue expert, he immediately found many problems in the lab. He questioned colleagues’ work, and had an issue with the clutter in the labs, he felt there was too much contamination of evidence. He cared so much about the state of the lab that he spent nights, weekends, and holidays cleaning the lab and replacing equipment with state-of the-art equipment.

In the fall of 1990, he had a conversation with Bill Tobin, who also worked for the FBI, about how they hate when agents misuse their frequent flier miles. Tobin told Whitehurst about a colleague who might have been conducting his lab work while staying faithful to his law enforcement team. That would be Michael Malone. He had a bachelor’s and master’s degree in biology, after teaching high school for two years he joined the FBI as a special agent in 1970. After four years as a criminal investigator, he was assigned to the crime lab.

He worked in the lab for 25 years as a hair and fiber analyst. He testified in 5000 criminal trials. He was extremely popular with prosecutors, and was famous for being able to come up with evidence when there were no eyewitnesses, no confessions, and no motives to send people to prison or death row. The more he seemed to do this, the more prosecutors sought him out for their cases. He worked in many high-profile cases.

Tobin actually told Whitehurst that he saw Malone manipulate evidence in a high-profile case. His accusations referenced the Hastings case, in which was a federal judge was convicted of taking a bribe. He also testified against Charles Fain, who was sentenced to death row for murder and rape of a nine- year-old girl; he had served 18 years on death row before the Department of Justice acknowledged the mistakes Malone made, and that real evidence showed it his innocence. Donald Gates was another innocent man found guilty on Malone’s testimony for rape and murder, but he had to do 28 years before they let him out.

When Whitehurst blew the whistle, he got suspended from work, and the FBI immediately came down on him for “bashing” the FBI crime lab. Malone himself claims he never did anything wrong; he admits that sometimes he testified as a laymen, not an expert, but claims that was always known. He admits that he “misspoke” on several occasions, but denies doing it on purpose. He says he never favored prosecutors.

Department of Justice Report

Incited by Whitehurst's numerous allegations, the Department of Justice (DOJ) and Office of the Inspector General (OIG) carried out an investigation into the practices and alleged misconduct of the FBI Laboratory culminating in a special report released April 1997. This investigation looked into possible FBI misconduct in the investigation of the following high profile cases:

• Mail Bomb murder of judge Robert Vance and others (VANPAC Case)
• 1993 World Trade Center bombing
• 1993 Kuwait assassination attempt on President Bush
• 1989 Avianca Airlines flight 203 bombing
• The O.J. Simpson Case
• 1995 Oklahoma City Bombing

In each case Frederic Whitehurst provided allegations against the FBI Lab both in their analysis of the evidence and statements made during the subsequent trials. After investigation into these allegations, the DOJ agreed with some dismissed others, and provided their suggestions into the future course of the FBI Laboratory.

World Trade Center Bombing

On February 26, 1993 a truck exploded at the world trade center, killing 6 and injuring many more. The FBI explosives lab ran an analysis of the debris in order to identify what type of explosive was used. During the investigation of a piece of debris, unit chief Roger Martz and chemist Lynn Lasswell claimed they detected urea nitrate. Urea Nitrate is a component found in fertilizer and can be used to create an explosive device. The confirmation of the presence of urea nitrate would have been useful to the prosecution in proving a urea nitrate explosive was used. However, the laboratory’s conclusions concerned Whitehurst. Whitehurst knew that the lab was only capable of detecting urea and nitric acid separately, and both could have come from other sources such as sewage. To test the practices of the lab, Whitehurst sent two samples to the lab: one sample containing urea nitrate and another contained a sample of Whitehurst’s own urine. The FBI lab concluded both samples tested positive for urea nitrate, proving that the lab’s conclusions about the WTC debris were unfounded. However it is important to note that this issue was resolved to Whitehurst’s content before the trial commenced.

During the trial United States vs. Salameh, SSA David Williams testified as an examiner of the FBI Lab Explosives Unit. Whitehurst raised several concerns about William’s testimony, stating he misrepresented the truth, testified outside his area of expertise, and presented biased testimony in favor of guilt. Specifically, Whitehurst was concerned about the validity of the specific formula Williams used to create urea nitrate to be used as a comparison, William’s opinion on the ability of the defendant to create urea nitrate, and whether urea nitrate was even used in the explosion. After the investigation, the DOJ concluded that Williams had committed troubling errors. “We are profoundly disturbed by Williams' testimony in the Salameh trial… the testimony lacked the objectivity, credibility, and competence demanded of examiners in the FBI Laboratory“.

Avianca Bombing

On November 27, 1989, Avianca Airlines flight 203 from Bogota Colombia exploded shortly after takeoff, killing 107 people on board including 2 Americans. The FBI explosives lab aided in the investigation and eventually the trial USA vs Munoz commenced to prosecute for the bombing. SSA Richard Hahn from the explosives unit was assigned both to the investigation and to testify during the trial. Whitehurst claimed that during the investigation the trial, Hahn fabricated evidence, committed perjury, and testified outside his area of expertise. Specifically, Whitehurst was concerned about Hahn’s conclusions on the type of explosive used, and Hahn’s disregard for Whitehurst’s findings that proved contradictory to Hahn’s testimony. In this case, the DOJ disagreed with Whitehurst on most cases stating Hahn did not commit perjury, fabricate evidence, or intend to mislead the court. However, the DOJ report did conclude that this case exemplifies the need for FBI lab technicians to “base conclusions on confirmed findings and testify within their areas of expertise”.

The DOJ findings on these two cases shed light on both the FBI Laboratory and Frederic Whitehurst. The WTC bombing case showed that the FBI lab was capable of prematurely coming to conclusions that appeared to benefit the prosecution. Both examples also shared the issue of FBI agents testifying in court outside of their expertise. However, the Avianca case reveals that, at least according to the DOJ, Whitehurst could sometime be overzealous in his accusations. It is clear that Whitehurst allegations caused much needed changes to the FBI laboratory, but is it possible he took his allegations too far?

Whitehurst's Legacy

Some of the major findings and subsequent outcomes of Whitehurst's whistleblowing can be found below.

Whitehurst's Findings

As discussed above, Whitehurst made hundreds of specific claims and allegations against the Laboratory’s procedures. Some of the more commonly reported problems included:

• Scientifically flawed and Inaccurate testimonies
• Insufficient documentation of test results and inadequate record management
• Scientifically flawed reports and improperly prepared lab reports
• Testimony beyond an examiner’s expertise
• Management failures and an overall flawed staffing structure (particularly within the Explosives Unit)

FBI Reforms

As a result of Whitehurst’s whistleblowing, the FBI was forced to undergo forty major reforms and procedural overhauls. Some of the more significant reforms included:

• The Lab was required to receive accreditation from the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB). This highly criticial accreditation board required a strict overhaul of many of the laboratory’s policies and practices
• A complete reconstruction of the Explosives Unit (EU). One issue addressed was that the EU personnel were not forensic scientists. The reform required that all EU personnel have both the necessary scientific background in a relevant scientific field as well as proper technical training to ensure accurate conduction of tests and experiments.
• Final reports were required to be signed by all authors instead of just the principal author. This was to ensure that all those who took part in the experiments or preparation of the report could be held responsible for its contents. Also, all papers had to be peer reviewed by another examiner with the scientific knowledge to provide good judgment on the reports quality.
• Records of all case files must be thorough in their recount of the examiner’s data and analysis and must be easily retrieved upon request.
• Written protocols were required to be developed for all the scientific procedures utilized within the lab. This was in order to ensure that outside sources could effectively reproduce the results of any given experiment.