Withholding of Critical Lab Memo by FBI Probed

WASHINGTON —  The Justice Department’s inspector general is investigating allegations that the FBI wrongly failed to disclose an internal memo questioning testimony given by an FBI laboratory agent during an impeachment hearing for a federal judge, Atty Gen. Janet Reno confirmed Thursday.

Her announcement responded to complaints from two Republican senators who charged Wednesday that FBI Director Louis J. Freeh should not head an investigation into whether his own agents covered up misleading testimony by lab officials.

Reno’s aides said that the Justice Department inspector general, not the FBI director, already was looking into the allegations. Indeed, the inquiry by Inspector General Michael Bromwich into a whistle-blower’s allegation that the highly trusted FBI lab has provided misleading testimony in a number of instances has been going on for more than a year, the aides said.

“We’re trying to have the inspector general pursue every issue and make sure that we pursue it to its appropriate conclusion,” Reno told reporters.

The whistle-blower, FBI lab scientist Frederic Whitehurst, has charged that the agency’s lab had grown sloppy in its work and had provided crime reports that failed to disclose uncertain test results. Instead, he said, agents sometimes reported the tests as confirming what prosecutors hoped to prove, he said.

Bromwich completed a 500-page draft report on the inquiry last month that was sent to selected members of Congress and to several lawyers who are involved in key cases. Since then, parts of it have been leaked.

The report includes a 1989 memo from FBI lab examiner William Tobin that raised questions about the testimony given by another lab agent, Michael P. Malone, during a judicial hearing that led to the impeachment of U.S. District Judge Alcee L. Hastings, who now serves as a House member from Florida.

In 1981, Hastings was indicted for conspiring with a Washington lawyer to accept a $150,000 bribe to lower the sentences for two drug dealers. Though the Washington lawyer was convicted, Hastings won an acquittal from a Florida jury.

However, an ethics complaint led to a lengthy investigation by a judicial panel, which concluded that Hastings had lied. The strongest evidence against him consisted of a series of phone calls to the Washington lawyer and his behavior when the money was being transferred.

One item of evidence concerned a leather bag that Hastings had discarded. He testified that he had switched to a new bag because a strap on the old bag had torn. But prosecutors said the strap had been cut.

FBI lab technician Malone testified that his tests showed the strap had been cut. But agent Tobin, in a memo, said his colleague failed to disclose the “crucial conditions, caveats, premises and assumptions” that went into that conclusion, a view that could have helped Hastings’ case.

Tobin told Bromwich that his dissenting comments were ignored. Critics now question whether his memo should have been disclosed to Hastings’ defense team.

After the judicial panel recommended his impeachment, Hastings was impeached by the House, convicted by the Senate and ousted. In 1992, however, he won election to the House from Florida’s 23rd Congressional District.

Sens. Charles E. Grassley (R-Iowa) and Arlen Specter (R-Pa.) said that the latest revelations further taint the reputation of the FBI lab.

“It raises questions about the integrity of the criminal justice process, especially the FBI’s role,” Grassley said.

Hastings said that he was “outraged and deeply anguished” to learn of the memo. “I have contended all along that the FBI’s case against me was built entirely on lies, fabrication and misleading testimony,” he said.

But a federal judge who headed the investigation said that the evidence involving the leather strap was insignificant. “It was irrelevant to our decision. It had zero effect on the committee,” said Judge Gerald Tjoflat of the U.S. 11th Circuit Court of Appeals in Atlanta.