Militia Case Shows Problems Wrought by FBI Lab

SEATTLE —  As top FBI officials assured the public last winter that widely reported troubles at the bureau’s crime lab would not jeopardize any criminal prosecutions, those very problems were eroding the case against seven allegedly violent militia leaders here.

In an example of how mistakes at the lab could reshape pending cases around the nation, defense attorneys used reports of shoddy lab practices to try to impeach the testimony of the lab examiner who analyzed evidence against members of the Washington State Militia and the Montana Freeman organization.

As lab examiner Robert Heckman was testifying in February, prosecutors abruptly dropped one important criminal charge, possessing an explosive device, saying that they did so “to avoid jury confusion.”

The jury ultimately convicted four of the seven defendants on other illegal explosives and firearms charges. But it was unable to reach a verdict on the most serious charge--that the group conspired to assault federal agents and destroy federal installations. U.S. District Judge John C. Coughenour declared a mistrial on the conspiracy count.

Three of the seven defendants were not convicted of anything, although they since have been indicted again.

Although federal prosecutors insisted that doubts about Heckman’s credibility played no significant role in the five-week trial, the episode clearly demonstrates how zealous defense attorneys will use the questionable lab work to aid their clients.

At the time of the Seattle trial, Justice Department inspectors had documented problems at the lab in a draft report that was not circulated publicly. That report is now final, and its release last week set off a series of events.

Jack King, a spokesman for the National Assn. of Criminal Defense Lawyers in Washington, said that his organization has been besieged by defense attorneys from around the nation wanting to know every scrap of detail about the crime lab investigation and how it might affect their cases.

King said that the association is suing the government, seeking all of the inspector general’s records, interviews, documents and other internal working papers. They hope to parcel that information out to defense attorneys to determine how it might be useful.

“What happened in Seattle shows the pervasive culture that has been going on,” King said. “They thought they could do anything they wanted just because they run the FBI lab.”

At the bureau, top law enforcement officials have set up a task force that is reviewing hundreds of cases the FBI believes may have been touched by problems at the lab. As those cases are identified, officials said, prosecutors will be notified and, if the problems are serious, the information will be turned over to defense lawyers.

The seven Seattle defendants were accused of chilling crimes. The FBI said that a paid informant and an undercover agent turned up evidence that the seven were stockpiling illegal machine guns, building bombs and plotting the deaths of federal agents and assaults on several installations.

Authorities said that the militia was preparing to “respond with military action to what they believe would be a confrontation with the federal government of the United States.” Officials had hoped that convictions would send a message to other anti-government malcontents.

The trial began in January in the U.S. courthouse in Seattle. Heckman testified for the government on Feb. 10 and 11.

An 18-year FBI employee with six years’ experience in the lab’s explosives unit, Heckman described tests he had performed on various explosive devices allegedly manufactured by the defendants.

Under cross-examination, however, he acknowledged that his lab report included some “inaccuracies,” specifically over the type of detonation cord used in one explosive device. He further admitted that his report included a “misstatement.”

Defense attorneys also quizzed Heckman about his shortcomings in two earlier cases that the Justice Department inspector general had investigated. Shortly before Heckman was called to the stand, one defense lawyer, Thomas W. Hillier, had learned that the FBI lab examiner was the subject of the inspector general’s inquiry.

Coughenour ordered prosecutors to produce a copy of the draft report, then provided a copy to defense lawyers and allowed them to bring it up in court.

The inspector general’s report also criticized Heckman for two of his previous cases:

* In the 1992 death of James Conlon, a hydraulic crane operator who died in an explosion while he was working in a scrap metal yard in New Jersey, the inspector general found that Heckman made “improper additions” to another lab official’s report by adding statements that were outside his expertise, according to the inspector general. He was also criticized for stating his “personal opinion” about a field test of explosives residue, despite the lack of confirmation from results at the lab.

* The inspector general found a “minor” problem with Heckman’s examination of a 1992 car bombing in Palermo, Sicily, that killed Italian judge-prosecutor Paolo Borsellino and five police escorts. He concluded that Heckman “erroneously” stated that another lab expert had confirmed the presence of a certain bomb component in the debris, when in fact that expert had only found residues “consistent with” the component.

In summing up Heckman’s performance, the inspector general said: “We do not think Heckman engaged in willful misconduct in either the Conlon or the Borsellino cases.

“Conlon presents, in our judgment, a performance issue that is best addressed through supervisory counseling and monitoring of future report preparation. Similarly, the minor inaccuracy in Heckman’s Borsellino testimony is the sort of thing that can be addressed by adequate monitoring of testimony.”

The FBI, in its official response to the inspector general, strongly defended Heckman.

“While Heckman could have been more precise in his testimony [in the Borsellino case], characterizing his testimony as inaccurate seems overly critical,” the FBI said.

Federal prosecutors in the Seattle case said that they will stand by Heckman’s credibility and will call him to the witness stand at the new trial. Mark Bartlett, head of the major cases unit in the U.S. attorney’s office here, said “our feeling is that his testimony the last time was effective and very believable.”

The militant anti-government defendants who were not convicted said that the lab scandal had only deepened their anger of federal law enforcement. “I think he should be put in jail and he should be fined,” said Frederick Benjamin Fisher, who spent seven months in jail while awaiting the first trial.

Co-defendant Tracy Lee Brown said in a jailhouse interview that he should be immediately let go and not forced to stand trial again. “A hung jury is all hogwash,” Brown said. “If we weren’t guilty, then we’re not guilty.”

He added: “There are more crimes done in the courtroom today than there are in the streets.”

How the revelations about Heckman’s performance played to the jury is difficult to gauge. Under federal court rules here, lawyers are not allowed to talk to the jurors after a trial. But according to notes that some jurors wrote the judge while they were deadlocked in their deliberations, it is clear that much of the disagreement was over bombs and bomb components, including a tin can device allegedly constructed by the defendants.

Prosecutors believe that the jury discussions broke down because the issues were complex. “It was just a difficult case, a tough case,” Bartlett said. “One of the problems was that there were multiple counts and multiple defendants.”

But Robert Leen, one of the defense attorneys, said that the Seattle trial pointed up for the first time the grave implications of the inspector general’s investigation.

“The lab just can’t be trusted anymore,” he said.