[Congressional Record Volume 143, Number 91 (Wednesday, June 25, 1997)]
[Senate]
[Pages S6387-S6388]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         CALLING FOR FURTHER INVESTIGATION OF THE FBI CRIME LAB

  Mr. GRASSLEY. Mr. President, I have spoken before this body several 
times about the serious problems in the FBI crime lab. The Justice 
Department's Inspector General has done the country a great service by 
uncovering the sloppiness and wrongdoing of certain lab examiners.
  A dozen such examiners are criticized in the IG's April 15 report for 
testifying beyond their expertise, and for changing lab reports. The IG 
found no criminal violations. Yet the wrongful testimony and the 
altering of reports by these examiners almost all redounded to the 
benefit of the prosecution, rather than to the defendant.
  This is a curious phenomenon, in my mind. Why weren't the changes 
more randomly distributed? How come they all benefitted the 
prosecution? Those are rather obvious questions.
  And so I thought a lot about what was done by the IG to determine 
motive or intent on the part of the examiners whose actions he 
criticized. And I have come to the conclusion that the IG's methodology 
was insufficient for determining motive or intent. And so, further 
investigation is warranted.
  The reasons for why further investigation is warranted were laid out 
in a letter I sent to the Attorney General on June 11. For starters, 
there was the April 16 Wall Street Journal front-page story on lab 
examiner Michael Malone. In that article, Agent Malone is cited for 
improper testimony in several cases, by judges and others.
  The Wall Street Journal broke new ground in uncovering problems in 
the FBI lab. First, it showed that wrongdoing by lab examiners has not 
been relegated to the three units investigated by the IG. Malone was 
assigned to a fourth unit--hairs and fibers. And second, it underscored 
the fundamental flaw in the IG's investigative methodology; namely, 
that it failed to review, for patterns of wrongdoing, all the cases of 
each examiner who was severely criticized in his report.
  To illustrate the point, it is interesting to note that in the IG's 
report, Agent Malone is criticized for wrongdoing in only one case--
that of Alcee L. Hastings. Yet, the Journal reporter researched open-
source case data and found numerous instances of apparent wrongdoing by 
Malone in other cases. If an enterprising reporter could do such a 
review, why couldn't the IG?
  And so I asked the Attorney General to conduct further investigation 
of those examiners, including Malone, who were severely criticized in 
the IG report. All cases worked on by each one of these examiners 
should be reviewed independently to determine if there is a pattern 
similar to what the Journal found in the case of Malone. Only then 
would we see the full scope of each agent's actions. If any patterns 
exist, those cases should be reviewed for administrative action, for 
undisclosed Brady material, for civil liability, or for misconduct 
involving obstruction of justice or perjury.
  There's some importance and urgency attached to my request. I 
understand that the IG has referred the findings of his report to the 
Pubic Integrity Section for possible criminal prosecution. In my view, 
they have been referred without sufficient follow-up investigation, 
thereby increasing the likelihood of declinations. I do not intend to 
stand by and watch declinations being handed out when some very obvious 
stones have been left unturned.
  My request was that the following agents' cases be reviewed by DOJ 
prior to any decision by Pubic Integrity:
  For possible involvement in altering reports: J. Thomas Thurman; J. 
Christopher Ronay; Wallace Higgins; David Williams; Alan Jordan.
  For possible false testimony: David Williams, Roger Martz; Charles 
Calfee; Terry Rudolph; Michael Malone; John Hicks; Richard Hahn.
  For possible undisclosed Brady material: Robert Webb.
  On April 16, I met with the IG, Michael Bromwich, and raised with him 
the subject of the Wall Street Journal article on Malone. I discussed 
my belief that his methodology was flawed, and that I would request in 
writing, after studying his report, that all cases involving lab 
examiners whose work he severely criticized in his report be 
investigated further. Thus, the IG has been aware for some time that my 
request would be forthcoming.
  In my discussions with the IG on April 16, one notable issue came up. 
I asked the IG if he had found possible criminal wrongdoing on the part 
of any of the lab personnel. He said ``no.'' I then asked him if he had 
detected a patter of wrongdoing by any agent, as the Journal seemed to 
find with Malone. He said ``no.'' I asked him if he even reviewed all 
the cases of any of the criticized agents. He said ``no.''
  These responses are troubling to me because the IG has gone out of 
his way to say he found no possible criminal activity by lab personnel. 
It sounds to me like he didn't even look for it. In fact, he told me in 
my office way back in February--well after his investigation was 
finished--that it wasn't in his charter to look for possible criminal 
activity. Therefore, due diligence requires further investigation such 
as I have requested. Otherwise, the public's full confidence cannot be 
restored.
  In a specific instance, for example, the IG had critized Agent 
Williams for ``backwards science''; i.e., tailoring evidence at the 
crime scene to evidence found elsewhere, such as at a suspect's home. I 
asked the IG if his finding of backwards science conducted by Williams 
didn't warrant further investigation for possible criminal intent.
  The IG responded that Williams gave a plausible explanation in his 
defense; namely, that Williams actually believed that was the proper 
way to conduct an investigation--in other words, ``backwards.'' The IG 
said the five blue ribbon scientists who investigated the lab believed 
Williams' explanation.
  Mr. President, I could not believe my ears. First of all, the 
scientists are not prosecutors. Second, whether Williams' explanation 
was believed or not, the IG should have reviewed the rest of Williams' 
cases.
  Such a review would have shown one of two things: Either he did do 
all of his investigations backwards, in which case his explanation 
would hold up but all of his cases should be considered suspect; or, he 
did some investigations correctly and some backwards, in which case his 
explanation would be undermined, and intent would be an issue. At the 
moment, because of the IG's flawed methodology, we don't know which is 
correct.
  The IG did not even review the second World Trade Center case to see 
if Williams gave similarly false testimony in court, as he had in the 
first World Trade Center case. I understand Williams' testimony in the 
second case was the same as in the first case. If so, this might have 
established a pattern in the IG's investigation.
  Meanwhile, at a May 13 hearing before the House Subcommittee on 
Crime, the IG admitted, under questioning from Congressman Robert 
Wexler, that alterations to lab reports appeared to be biased in favor 
of the prosecution's position. This is a serious matter because it 
could go to the issue of motive.
  It is also not clear to me whether the IG was aware of an FBI 
internal review in 1994 and 1995 of alterations and changes of lab 
reports after allegations were made by two lab scientists. James Corby, 
chief of the Materials Analysis Unit, conducted the review. Dr. Corby 
verified numerous instances of alterations, many of which were material 
changes. He concluded that they were clearly intentional. In a memo to 
his section chief, J.J. Kearney, dated January 13, 1995, Dr. Corby 
stated the following, with respect to the intentional changes:

       A[n] FBI Laboratory report is evidence. Often times the 
     report itself is entered into evidence during the trial 
     proceedings. The fact that SSA [redacted name] did make 
     unauthorized changes in these reports could have resulted in 
     serious consequences during legal proceedings and 
     embarrassment to the Laboratory as well as the entire FBI.

  The FBI's Office of the General Counsel [OGC] apparently concurred. A 
memorandum from General Counsel Howard Shapiro to the Lab's director, 
M.E. Ahlerich, dated June 12, 1995, reiterated the lab's policy of not 
altering

[[Page S6388]]

reports, and warned that, ``* * * failure to follow this policy could 
subject the FBI and/or individual employees to civil or criminal 
liability.''
  Mr. President, I previously placed these documents in the Record on 
March 20, 1997.
  The documents and arguments I have advanced on this issue present a 
compelling case for further investigation. We have yet to hear an 
equally compelling counter-argument from either the Attorney General, 
or the IG. The issue of my request came up at the Attorney General's 
weekly press conference of June 12. A wire story later that evening by 
the Associated Press, quoted Ms. Reno as simply saying the following:

       We have not seen any basis for criminal inquiry.

  Mr. President, I don't know whether or not the Attorney General had 
read my letter before giving that quote. But I assure you, that if the 
AG had read it, she would see there is plenty of basis for criminal 
inquiry.
  I also asked Ms. Reno for a response by last week. I have yet to hear 
a peep out of her office. In my view, the Attorney General needs to act 
quickly and provide a compelling rebuttal to the facts I laid out in my 
June 11 letter to her. To simply say ``We have not seen any basis for 
criminal inquiry'' is simply not credible. I, for one, have seen 
sufficient basis.
  In the same June 12 AP story, the IG took issue with my statement 
that he did not do a criminal investigation. The IG said he did a 
hybrid, criminal/administrative inquiry. The IG may not recall the 
conversation we had in my office in February. He was asked to respond 
to a comment in a letter I had received dated February 21, 1997 from 
then-Deputy FBI Director Weldon Kennedy. The comment was the following:

       * * * [T]he Department of Justice Office of the Inspector 
     General found no instances of perjury, evidence tampering, 
     evidence fabrication, or failure to report exculpatory 
     evidence.

  In my office, the IG was asked if he even looked for that. He 
responded no, because that wasn't in his charter.
  Regardless of what is or isn't in his charter, the fact is the IG did 
nothing to establish intent. If he wants to cite the questioning of 
David Williams and the backwards science as a probing of intent, well 
I'll simply rest my case.
  It is not my intention to criticize the IG's work. To the contrary, I 
consider it a landmark effort and an important service for the American 
people. I have nothing but praise for Mr. Bromwich, his team of 
investigators, and the five blue ribbon scientists.
  But it cannot stop there. There are too many stones left unturned. 
There is a culture that needs reforming. There's still a cowboy element 
running loose in that lab.
  It seems to me that the IG investigation is merely a point of 
departure. It identified individuals whose work should be more 
thoroughly scrutinized. Failure to conduct follow-up investigation can 
only further erode the public's dwindling confidence in Federal law 
enforcement.
  Meanwhile, Mr. President, I await the Attorney General's overdue 
response to my letter.

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