Next witness.
MR. TRITICO: Dr. Fred Whitehurst.
THE COURT: All right.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Frederic Whitehurst affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
THE WITNESS: Yes.
THE COURTROOM DEPUTY: Would you state your full name
for the record and spell your last name.
THE WITNESS: Yes. My name is Frederic William
Whitehurst. My last name is spelled W-H-I-T-E-H-U-R-S-T.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Mr. Tritico.
DIRECT EXAMINATION
BY MR. TRITICO:
Q. Dr. Whitehurst, how are you employed?
A. I'm a supervisory special agent of the FBI.
Q. And you're appearing here today under subpoena from
Mr. McVeigh and his defense team?
A. Yes, sir.
Q. Would you describe for the ladies and gentlemen of the jury
briefly your educational background. Where did you go to
college?
A. Yes. I got a bachelor of science degree in chemistry from
East Carolina University in 1974. I received a doctorate from
chemistry in Duke University in 1980. I received -- well, I
completed a couple of years of post-doctoral research at Texas
A & M University.
Q. What was your post-doctoral work at Texas A & M?
A. X-ray crystallography, theoretical applications.
Q. I'm sorry?
A. X-ray crystallography.
Q. What is that, briefly?
A. Some solid materials are ordered; they're not random. The
atoms that are in them are ordered. We use various and sundry
pieces of equipment to find out what that order is. And I also
completed a law degree at Georgetown University.
Q. With respect to your law degree, did you sit for the bar in
any state?
A. No, I haven't.
Q. You do not practice law, but you do have a doctorate of
jurisprudence in law; is that correct?
A. Yes, I do.
Q. Have you had any practical experience in your lifetime with
the use of explosives?
A. Yes, sir, I have.
Q. And when did you obtain this practical experience?
A. I spent three years with combat units in Vietnam.
Q. And what were you assigned to in Vietnam?
A. Well, I spent about six months in the infantry. I was a
mortarman, a rifleman. I worked a lot with explosives,
assisting engineers in blowing up tunnels, blowing down trees,
that sort of thing.
I spent two and a half years in military intelligence.
I went to the field quite often. I had a lot of -- of
experience with explosives being used very close to me.
Q. With respect to the explosives, have you during Vietnam --
did you participate in or explode things, if you will, on few,
or many occasions?
A. Many occasions.
Q. Since you left the military, would you briefly describe for
the ladies and gentlemen of the jury your work history with
respect to chemical trace analysis, or explosives trace
analysis.
A. Yes. I -- excuse me. I entered the FBI Laboratory in
1986, and I underwent about 13 months of training to qualify to
be a forensic chemist with a specialty in the area of
explosives and explosive residue analysis.
And then I -- between August of 1987 and June of 1994,
I worked cases, criminal cases and other cases in explosives,
explosive residue analysis.
Q. Prior to 1986, when you joined the lab, were you a special
agent for the Federal Bureau of Investigation?
A. Yes, I was.
Q. Is that somebody working in the field conducting
investigations?
A. Yes.
Q. And what year did you join the Federal Bureau of
Investigation?
A. It was in 1982.
Q. And I believe you testified that you joined the lab in
1986; is that correct?
A. Yes, that's correct.
Q. What unit were you assigned to in the lab when you first
joined the lab?
A. To the Materials Analysis Unit.
Q. And in 1986, was that the unit of the lab that conducted
trace analysis, explosives trace analysis?
A. Yes, it was.
Q. Is that the same thing as explosives residue analysis?
A. Yes.
Q. Has -- during the time that you've been employed at the FBI
lab, has the trace analysis section, if you will, always been
assigned to the Materials Analysis Unit?
A. Well, there is many types of trace analysis. The
explosives and explosives residue analysis was assigned to the
materials analysis until, oh, I don't know -- I think it's
maybe a couple of years ago now.
Q. Where did it go?
A. It was moved over to the Chemistry/Toxicology Unit.
Q. Now, when it was moved to the Chemistry/Toxicology Unit,
did that require the members of the lab to physically move the
equipment, or was this a flowchart change?
A. It was a flowchart change.
Q. Now, are you a member of any professional organizations?
A. Yes, sir.
Q. Which ones?
A. I belong to the American Chemical Society, the Federation
Societies of Coatings Technology, Pyrotechnic Guild
International that I belong to. Sigma Psi Scientific Honor
Society, the International Society of Explosives Engineers.
That's all I can remember right now, sir.
Q. Do you from time to time attend international symposiums in
the field of chemistry and/or explosives residue analysis?
A. Yes, sir, I do.
Q. Do you do that on few, or many occasions?
A. Excuse me?
Q. You do that on few, or many occasions?
A. I'd say on a few occasions.
Q. And do you regularly read journals and treatises on the
subject of explosives trace analysis?
A. Yes, I do.
Q. And have you had occasion to contribute to those journals
and/or treatises as a contributing author or editor, if you
will?
A. Yes, but not very often.
Q. I'd like to show you, sir, what's already been introduced
into evidence as McVeigh Exhibit J400.
A. Excuse me. I've got J444, also. Am I supposed to?
Q. We'll get to that in a minute.
A. All right.
Q. J400, it has been represented here, are the protocols that
were in effect in the FBI lab from April 1, 1995, to present,
which, according to the letter, would have been December 19,
1996.
My question to you, Dr. Whitehurst: Are those
protocols?
A. Some of this that I'm looking at is data that was generated
to help us understand a piece of equipment that we had in the
laboratory that was a new piece of equipment.
That is -- that does not fit within my understanding
of what a protocol is.
Q. Do you recognize some of those documents?
A. Yes. My handwriting is on them, and some of them are
documents that I wrote.
Q. Down at the bottom right-hand corner of each document
should be a number. Can you identify the document that you
wrote that make up Exhibit J400?
A. There is a stamp on the bottom that says 000895.
Q. 895?
A. Yes.
Q. Okay. Any others that you wrote?
A. 000896 is something that I believe I generated.
000897, 898, and part of 899, 900. I wrote 901, 902,
903, 904, 905. I generated 906 in conjunction with
Mr. Burmeister and Monica Knuckles in the laboratory. Let's
see. Yes.
I generated, I believe, 921, 922, 923 -- yes, 923,
924 --
Q. Let's talk about some of these, Dr. Whitehurst.
A. Yes.
MR. TRITICO: May I have the ELMO?
BY MR. TRITICO:
Q. Looking at page 000895 --
A. Yes.
Q. -- now, this is the first one that you identified as
something that you had written; is that correct?
A. Yes.
Q. What is this?
A. It appears to be laboratory notes associated with the
testing of the echo gas chromatography electron capture
detector instrument that we had in the laboratory.
Q. Is this a document that you prepared to be used as a
written protocol for the FBI lab?
A. No, sir. It was -- it was the notes from the results of
testing of the instrument.
Q. And 000896: Does this have to do with the same machine?
A. Yes, it does.
Q. Is this -- was this prepared, this chart printed off for
use as a written protocol, for the FBI lab?
A. No, sir.
Q. And 897: Is that part of the same document?
A. That's correct. And --
Q. And 898?
A. Yes.
Q. And I guess 899 is also a part of the same document. Is
that correct?
A. Yes. It appears to be.
Q. Are any of the documents or the page numbers that you've
identified incorporated within McVeigh Exhibit J400, the
documents that you wrote -- were they written to be written
protocols for the FBI lab?
A. Yes, some of them were.
Q. Which ones?
A. The description of analysis on 901 was not. Okay. It goes
through after that.
Q. I'm sorry. 000901?
A. Yes. That says what we do, but it wasn't to be part of a
protocol.
There is a document in the back that starts at 922 or
921 -- excuse me -- which was meant to be the initial attempts
at a protocol.
Q. Is this the page you're talking about? Look at the screen
there, please.
A. Yes, that's correct.
Q. Now, I believe I understood you to say a moment ago that
this was the initial attempt at a written protocol?
A. Yes.
Q. What do you mean by that?
MS. WILKINSON: Your Honor, could I object just as to
timing so we can figure out what time this protocol
Mr. Whitehurst or Dr. Whitehurst --
THE COURT: All right. Let's establish time.
BY MR. TRITICO:
Q. When did you write this?
THE COURT: What page is this?
MR. TRITICO: I'm sorry, your Honor. It's 000922.
THE COURT: Thank you.
BY MR. TRITICO:
Q. When did you write this?
A. Sometime back in the early 90's. I think it was in 1991 or
1992. I don't know for sure.
Q. Now, if I understood your testimony a moment ago, this was
your attempt at a protocol?
A. Yes. Yes, sir.
Q. What do you mean by that?
A. We became aware that the flowchart that we were using
didn't have enough specific instructions in it. Somebody
couldn't just review that and see what we had done; and we
realized that, you know, real scientific protocol needs to be
more specific than the flowchart was. So Mr. Burmeister and I
sat down to try to build a protocol to -- you know, to flesh
out that -- that flowchart that we were using. And, you know,
to the best of my memory, this is part of that attempt.
Q. Did you complete the project?
A. No. Not during my tenure.
Q. Look at the very first page of McVeigh Exhibit J400 for me,
please.
A. Yes.
Q. The first sentence of this says, "The enclosed materials
reflect the protocols and procedures in effect from April 1,
1995, to present." And the date of this letter is December 19,
1996. Do you see that?
A. Yes, I do.
Q. Do you view that as an accurate statement?
MS. WILKINSON: Objection, your Honor. I don't
believe that Mr. -- Dr. Whitehurst was a member of this unit
during that time period.
THE COURT: Well, he's read the attached. The
question goes to the attached; is that correct?
MR. TRITICO: Yes, sir.
THE COURT: Overruled.
BY MR. TRITICO:
Q. Do you view that as an accurate statement?
A. Well, some of these documents are not to my understanding
part of a protocol. They're just laboratory notes. Some of
these documents do represent the -- I don't know the state of
April 1, 1995. I wasn't working this April 1, 1995; but
they -- if that's all they had for a protocol, then that
represents -- that represents the protocol that was used, sir.
Q. However, the documents that you've identified that we've
discussed in your view as a scientist are not protocols; is
that correct?
A. They don't satisfy the protocol requirements of the
organization that I work for.
Q. What do you mean by that?
A. Well, the FBI has a standard operating procedure for making
protocols, for writing protocols which they've developed in the
last while. And I know -- I'm the author of some of this
stuff, and I know that these don't satisfy those requirements
that I've read.
Q. Now, let me talk to you for a minute about contamination
studies at the FBI lab while you were there.
Have you ever conducted a contamination study at the
FBI lab?
A. Yes.
MS. WILKINSON: Objection, your Honor, to relevance
and timing.
THE COURT: Well, we need foundation to make it
relevant, so . . .
BY MR. TRITICO:
Q. How many studies have you conducted?
A. I've conducted a number of studies.
Q. When was the last one?
A. In May of 1995, I believe.
Q. What was that study? What were you doing?
A. I was trying to determine if there were organic
explosives -- particular types of organic explosives in the
laboratory in various places that I felt at the time were
important to the handling of explosive residues evidence.
Q. Did you complete the study?
A. Yes.
Q. What were your results?
A. We found -- I think we took 50 swabs. I'd have to look at
the study myself, but we found that there were some places that
had -- there were four or five, maybe -- yes, that had some
organic explosives.
Q. Where were those places? Do you recall?
A. The best I can recall now is they were in areas of the
Explosives Unit's evidence-handling area and evidence-storage
area.
Q. If you know, is that the area where evidence is checked in
when it's brought into the lab?
A. Yes.
Q. Yes, you know, or yes, it is?
A. Yes, that's correct.
Q. Okay. What contamination did you find in those areas?
A. We found residues of PETN and residues of RDX.
Q. In April and May of 1995, did the FBI lab have a procedure
for regular monitoring with respect to contamination in the
Explosives Units?
A. Not to my knowledge.
Q. What efforts, if any, were taken, other than the
contamination study that you testified about, to determine the
existence of contamination in the Explosives Units?
A. I was told about a study that --
MS. WILKINSON: Objection, your Honor.
THE COURT: Sustained.
BY MR. TRITICO:
Q. Do you know of any other efforts that were taken to
determine the existence, if any, of contamination other than
the one you just testified about in 1995?
A. Can you repeat that again, sir.
Q. Sure. Other than the contamination study that you did that
you just testified about, are you aware of any other testing in
and around April and May of 1995 to determine the existence of
contamination?
THE COURT: In the entire laboratory?
MR. TRITICO: In the Explosive Units, is what I'm
talking about.
MS. WILKINSON: Your Honor, he's saying "Explosive
Units." I'm not sure what he's referring to in the plural.
THE COURT: Let's clarify.
BY MR. TRITICO:
Q. How many units of the lab handle explosives?
A. Um --
Q. Let me ask it this way.
A. Very many would, because evidence -- Should I wait?
Q. Let me ask you this: Does the Explosives Unit -- is that
the area that in April and May of 1995 that would have checked
in evidence from the Oklahoma City case?
A. I believe so.
Q. The chemistry/toxicology area: Was that the area of the
lab that conducted explosives trace analysis in April and May
of 1995?
A. Yes.
Q. And the Explosives Unit would have conducted their testing,
if you will, on other evidence from the Oklahoma City case in
April or May of 1995; is that correct?
A. That would be standard procedure.
Q. Are those the two areas -- and the Materials Analysis Unit:
Would they handle certain evidence of an explosives nature with
respect to Oklahoma City in April and May of 1995?
A. Yes, they would.
Q. Those three areas: Are you aware of any other testing for
contamination other than the one that you did in -- I believe
you said May of 1995?
A. During that period, no.
Q. Are you aware of any monitoring performed by the FBI lab or
the FBI in those three units of the lab in April or May of 1995
to determine the existence, if any, of contamination?
A. No, sir.
Q. Why is it important in your mind to determine if there is
contamination in the lab in those three areas?
A. If we're processing evidence and we are contaminated
ourselves, then we don't know whether our finding of explosives
residues on material is a result of our contaminating the
material ourselves or the result of the explosives residue
having been on the evidence before it ever got to us.
Q. Can you see explosives residue?
A. Sometimes.
Q. Can you generally?
A. I don't know that I've done a study. There are explosive
residues that are invisible. There could be explosive residues
on my hand right now, sir, that you just couldn't see.
Q. Can explosives residue travel around?
A. It can and does.
Q. And have you ever conducted any studies wherein you
determined that explosive residues had traveled around and
contaminated other items?
A. The FBI has.
Q. Have you participated in those?
A. Yes, I have. I have looked --
THE COURT: I don't know what you mean by "traveled
around." That doesn't sound very scientific.
MR. TRITICO: It probably wasn't, your Honor.
BY MR. TRITICO:
Q. Can it move around in the air?
A. Yes.
Q. Some explosives residues?
A. Yes, I'm aware that some can move around in the air.
Q. Can explosives residues be transferred by people like on my
hands or clothes or shoes?
A. Yes, it can.
Q. How does that happen?
A. You touch the explosive. A study we did at Quantico, where
you touch the individual and the individual touched the
explosive, went and touched door handles throughout our
Quantico facility -- and I think it was up to 30 door handles
that they could find explosives on it. Don't quote me on that
number. But I've seen the studies, also, where a thumb is put
on C-4 plastic explosive; and for 100 thumb prints, you can
still find explosive residue.
Q. Can explosives residue travel from, say, box to box?
A. Some can.
MS. WILKINSON: Your Honor, could we talk about a
specific residue? Explosive residue and the timing.
THE COURT: Well, you can on cross. This is
permissible direct.
BY MR. TRITICO:
Q. Can explosives residue travel from box to box?
A. There are explosive residues that have high vapor pressure,
like nitroglycerine and ethylene glycol dinitrate that can.
Q. What does high vapor pressure mean?
A. The material evaporates. Just molecules of nitroglycerine,
for instance, evaporate, travel through objects over a period
of time.
Q. How about explosives residue traveling from item to item
within a box?
A. If you're dealing with, again, explosives residue that have
high vapor pressures.
Q. Did you ever conduct a study wherein you used blue jeans?
A. Yes, I did.
Q. Can you tell me about when -- well, when did you perform
that study?
A. We started in 1992, I believe.
Q. And what was the purpose of this study?
MS. WILKINSON: Objection, your Honor, as to
relevance, timing.
THE COURT: Overruled.
BY MR. TRITICO:
Q. What was the purpose of this study?
A. Initially what we were trying to do was find out how long
ethylene glycol dinitrate would last on blue jeans. So it was
going to be a multiyear study.
Q. Is that EGDN?
A. Yes, EGDN.
Q. Okay.
A. Excuse me.
Q. So what did you do?
A. We carried, I believe, eight pairs of blue jeans down to
the Quantico bomb range and put some aside, blew up an
explosive that didn't have any EGDN in it near them and put
some others that were hanging up on like a clothesline there
and blew up explosives that had EGDN up close to the others.
And we tested them to see if EGDN was on them. Then we placed
them in plastic bags. We put them all together in a box,
cardboard box. We stored the box over a period of time and
found that EGDN was on the original blue jeans that had EGDN on
them, but it was also on the blue jeans that didn't have the
EGDN on them to start out with.
Q. Did you find any other substances on the blue jeans when
you tested them later?
A. No.
Q. Did you make any findings with respect to PETN in that
study?
A. Yes. One of the things I wanted to do in 1996 -- I believe
it was '96 when the study was over -- was to find out if EGDN
had come out of the box. And so I did a test on the outside of
the box and found PETN, which wasn't -- it was nonsensical.
Q. What do you mean?
A. We hadn't used it. It wasn't an explosive we were using;
the box was a brand-new box out of a stack of boxes. It didn't
make sense that there was -- I say we found EGDN. The data we
had was consistent with the presence -- excuse me -- of PETN
being on the box.
Q. On the outside of the box?
A. Yes, on the outside of the box.
Q. Was PETN used in the initial explosion when you started the
test?
A. No, it wasn't.
Q. Do you know how the PETN got on the box?
A. No, I don't. It didn't make any sense to me.
Q. Where was the box stored?
A. It was stored on top of some book shelves up over close to
the -- close to the ceiling in my office.
Q. How long did you store it there?
A. Four years.
Q. I'm sorry?
A. Four years.
Q. Four years? What is Turbo Vap?
A. It's an instrument that's used to evaporate many containers
of solvent all at the same time, and it -- if you want to know
if a material is in, say, this pen or whatever this object is,
you might immerse it into a solvent and soak out of that pen
some material that you're looking for. Well, now you've got
solvent and material. You want to get rid of the solvent so
you can analyze the material, and so what you do is blow a
stream of gas such as nitrogen into a test tube that you've got
the solvent and the material in and evaporate it.
Q. You have -- in April and May of 1995, did you have one of
those in the FBI lab?
A. Yes.
Q. Have you ever tested the Turbo Vap yourself for the
existence of contamination?
A. Yes, I have.
Q. And when that?
A. It was terribly contaminated.
Q. When. I'm sorry.
A. Oh, when? It was sometime -- I think it was around 1992.
Q. Have you tested it since?
A. No. Not that I remember.
Q. Was there any regular monitoring or testing of the Turbo
Vap while you were in the FBI lab?
A. No, no.
Q. What did you find in 1992 when you tested the Turbo Vap?
A. There were a number of explosives on there. I had been
processing raw explosives in the Turbo Vap.
Q. What was the policy and procedure of the FBI lab in April
or May of 1995 for regular cleaning, if any, of the Turbo Vap?
A. There wasn't one because we abandoned the use of it.
Q. Have you ever known individuals to keep raw explosives in
the trace analysis area of the lab?
A. Yes.
Q. Who?
MS. WILKINSON: Your Honor, again, timing.
THE COURT: Yes. Let's be more specific.
BY MR. TRITICO:
Q. April and May of 1995, were you aware of any?
A. Yes.
Q. Who?
A. Mr. Burmeister did.
Q. What did he keep? Do you know?
A. Very small containers of standards, screw-cap vials.
Q. What's a standard?
A. They're known explosives.
Q. Like what?
A. Hexanitrostilbene or RDX or TNT or PETN or -- there is a
number of types of explosives. I think we have 15 or 20 of
them.
Q. What do you use the standard for?
A. If you run -- if you know what the material is, you run an
unknown, you could run the standard to find out what the
unknown is. We use the standards for testing equipment that's,
you know -- if you get a new piece of explosive detection
equipment, you want to know could it detect this type of
explosive. We know what is in the jar or in the little bottle,
so we use the equipment for that -- I mean the standards for
that.
Q. Let me see if I can break that down a little bit. The
standard is used when you run an unknown sample through, for
instance, a GC/Chem machine so that you have something to
compare the charts with against each other; right?
A. Yes.
Q. And you're looking to see with the known standard if it
matches up with the unknown sample, then you know if you have
identified explosives residue on that unknown sample. Is that
fair?
A. Well, it's not -- you don't quite identify it that way, but
you know your data is consistent with the same type of material
going through the instrument.
Q. In your opinion, should raw explosives like standards be
kept in the trace analysis area of the lab?
A. The way those explosives are stored, I -- I'm not that
concerned about it. They're handled very carefully, and I
don't have a great deal of concern about that.
Q. Have you ever found contamination in Steve Burmeister's
work area?
A. We did one time a long time ago.
Q. When?
A. It was in the early 90's, just after Steve came that we
found something.
Q. What did you find?
A. There was an RDX signal off his computer keyboard.
Q. Have you tested his office since you found the RDX?
A. I don't know if -- when we did the test in '95 that it
included that office. I'd have to review the test results.
Q. Now, the -- each -- some of the examiners -- you, for
instance, and Mr. Burmeister -- had individual offices within
the trace analysis area of the lab; is that right?
A. Yes.
Q. And these offices: Did they have locks on the doors?
A. Yes, they did.
Q. Was there a policy or procedure for regular monitoring of
each individual office for contamination in April and May of
1995?
A. Not that I'm aware of.
Q. Does the FBI permit tours by the general public through the
FBI lab?
A. No longer as far as I understand.
Q. Let me break that down. In April and May of 1995, were
tours permitted by the -- for the general public through the
FBI lab?
A. There were tours that came through. Not of the general
public. They were special tours that came through.
Q. Through the trace analysis area is what you're talking
about?
A. Yes.
Q. And who generally would be invited into the trace analysis
area on these special tours?
A. I've seen lots of different groups, visiting dignitaries
from places even like Russia and Czechoslovakia, Japan,
Southeast Asia, the Middle East. We have a number of visits
from Israelis. Those kinds of people come through.
Q. Foreign dignitaries?
A. Foreign dignitaries. We also have, you know, at times
Americans, civilians that come through the lab.
Q. And have you seen -- had occasion to see military personnel
on these special tours?
A. Yes, I have.
Q. From the United States, or abroad, or both?
A. Both.
Q. I'm sorry?
A. Both.
Q. Now, does the general public: Are they allowed to tour in
and around or around the trace analysis area?
A. No longer.
Q. My questions are only referring to April and May of '95.
Okay?
A. Okay.
Q. Were they allowed then to tour around the trace analysis
area?
A. To the best of my recollection, that practice had been
stopped before that time.
Q. How soon before?
A. That, I don't know. I know I myself have brought groups as
many as 15 to 20 people through the lab.
Q. Members of the general public?
A. Yes.
Q. In April or May of '95, or around that time frame?
A. No. To the best of my recollection, that practice had
halted by that time, sir.
Q. Okay. Now, is there a carpeting in the FBI lab?
A. Yes, there is, in a number of places.
Q. I'm talking about the trace analysis area.
A. Yes, there is.
Q. Excuse me. Can you draw me a picture of the interior, a
sketch, if you will, of the trace analysis area, if I give you
a piece of paper?
A. Yes.
MR. TRITICO: May I approach?
THE COURT: Yes.
THE WITNESS: You want me to go ahead and draw?
BY MR. TRITICO:
Q. Yes. And can you write and me ask questions at the same
time?
A. We'll try.
Q. Okay. In April and May of '95, were there locks on
exterior doors of the trace analysis area?
A. No.
Q. You want to go ahead and draw?
A. You want me to start drawing?
Q. Go ahead and draw that.
A. Okay. Understand I'm a scientist, not an artist, sir.
Q. Yes, sir.
I just need a sketch, Dr. Whitehurst, not a van Gogh.
A. Yes. It's a rather complex area. I'm sorry. I'm holding
you up.
Q. That's okay. Are you through?
A. Well, sure.
Q. If you're not, I want you to finish it.
A. I wasn't sure if that was a hint or not.
Q. Okay.
A. I think that I should be able to explain what I need with
what I've got here, sir.
MR. TRITICO: May I retrieve that, your Honor?
THE COURT: Yes.
MR. TRITICO: May I show this --
THE COURT: Will you show it to counsel first?
MR. TRITICO: Oh, yes, I guess I will.
BY MR. TRITICO:
Q. Now, I'm showing you what's now been marked as McVeigh
Exhibit J750. Is this the sketch that you drew?
A. Yes, it is.
Q. Would this assist the jury in understanding your testimony
about the lab and the egress and the ingress into and from the
lab and --
A. Yes, I believe it would.
Q. This is not a Vincent van Gogh drawing, is it?
A. It's not completely accurate.
Q. Okay.
MR. TRITICO: I'll offer McVeigh Exhibit J750, your
Honor.
MS. WILKINSON: No objection.
THE COURT: All right. It's received to illustrate
the testimony.
MR. TRITICO: Yes, sir.
BY MR. TRITICO:
Q. Now, can you see what I'm pointing at right here?
A. Yes, I do.
Q. What is this?
A. That's a doorway.
Q. Is this the doorway -- the main entrance into the trace
analysis section of the lab?
A. It is one of the entrances. On the other corner, there is
another entrance.
Q. Over here?
A. Yes, uh-huh.
Q. Is the area that is enclosed in here within the page
between these two doors: Does that comprise the trace analysis
area of the lab?
A. Well, there is other -- there is other areas in the lab
where explosive trace analysis takes place, also.
Q. Is this where the majority of it is done?
A. During my tenure, that's where the majority was done.
Q. Is this the area where you officed when you were at -- in
the explosives residue analysis for the lab?
A. Yes, that's correct.
Q. What is this right here that I'm pointing at right here?
A. It's an area that leads through the national automotive
paint file area, where the carpet is.
Q. Was this carpet here in April and May of 1995?
A. Yes, it was.
Q. How big is that carpet?
A. I'd say it's 3 or 4 feet wide and maybe 15 feet long.
Something like that.
Q. What was the regular practice for cleaning the carpet in
this area in April and May of 1995?
A. The facilities management personnel would vacuum it.
Q. Do you have an opinion as to whether or not vacuuming the
carpet in the trace analysis area is appropriate?
A. Yes, I have an opinion.
Q. What is that opinion?
A. I think, first of all, it's inappropriate to have the
carpet there; and second of all, it's inappropriate to vacuum
it with an industrial-grade vacuum cleaner.
Q. Let's break that down. Why is it inappropriate to have the
carpet in that area?
A. It's very difficult to really clean and to characterize as
to whether it's been contaminated with anything. It acts as an
area where individuals that are undefined coming through can
walk across and leave materials that we can't -- we can't mop
up, we can't clean very often, so that that carpet could be
absolutely clean now, and five minutes from now when traffic
comes through, it's no longer clean. We just can't monitor it.
Q. What type of traffic would this carpet see? From whom, I'm
asking you? Other people in the lab?
A. Other people in the lab, other people in the FBI building.
Just all kinds of people.
Q. Have you had occasion to see people that have come from the
bomb range in Quantico walk across that carpet?
A. Yes.
Q. Now, you -- I got past what we were talking about with
respect to vacuuming. Why is that inappropriate, vacuuming the
carpet?
A. Vacuum cleaners that you normally use around your house
throw a lot of dust out. They vacuum up the big particles, and
a lot of dust goes out. In fact, you know if you clean, you
know that if you vacuum then you dust, you know because if you
vac -- I mean if you dust first, you're going to have to dust
again after you vacuum.
Q. What studies while you were -- In or around April or May of
1995, were any studies conducted with respect to this carpet
and contamination that you're aware of?
A. I don't know that the study we did actually tested the
carpet.
Q. How many times did you see the carpet shampooed while you
were in the lab?
A. I don't remember it ever being shampooed.
Q. Now, over here on -- along here are -- I take it offices is
what you've drawn. Is that correct?
A. Yes, that's correct.
Q. Are these the offices where the examiners officed?
A. Yes.
Q. One of which was yours?
A. Yes, that's correct.
Q. Which one was yours?
A. I don't know how to point at this thing.
Q. This one?
A. Let me see.
Yes, that's correct.
Q. This was your office?
A. Yes, that was my office.
Q. Take that pen, go underneath the glass onto the screen.
You can just put a little X or whatever you want, just right on
the screen. There you go.
A. Fascinating.
Q. Which one was Mr. Burmeister's office?
A. It's this one right here.
Q. I can't see it --
A. Excuse me. I apologize.
Q. Thank you. Now, this door you testified a moment ago was
not locked; is that right? In April and May of '95?
A. Yes, that's correct.
Q. Were any efforts taken by the lab to control the egress and
ingress of individuals who did not work in that trace analysis
area of the lab in April and May of 1995?
A. Yes. I'm aware of a 1991 memo requesting that locks be put
on those doors to provide proper security for our evidence and
to keep people from going through the area.
Q. And was that done?
A. No.
Q. Do you know why?
A. No.
Q. Do you feel that the doors should have been locked and the
egress and ingress of individuals who did not work in the trace
analysis area should have been controlled?
A. Yes.
Q. Why?
A. I've had a concern about chain of custody ever since I got
in the lab. We very often don't have a place to store our
evidence, so it stays out overnight in the hoods, or even out
in the lab. And I don't know how -- I don't know how we can
legally justify that to say that evidence was, you know,
totally under our control.
I also have a concern that if the door isn't locked,
people don't think before they go through it. They don't
think, "Am I dirty? Should I not go in there?" You know? And
when I mean dirty, I mean, "Am I contaminated with something
that shouldn't be in that room?"
Q. What efforts were taken in and around April and May of 1995
to determine if individuals entering the trace analysis area of
the lab were contaminated with explosives residue?
A. I don't remember any -- there was no -- there was no
procedure of checking people out that came into the lab that I
remember.
Q. What efforts could have been taken in and around April or
May of 1995 to check individuals for explosives residue
contamination?
A. We could have -- well, the efforts could be like what I saw
in 1989 in the British lab that I --
MS. WILKINSON: Objection, your Honor.
THE COURT: Sustained.
BY MR. TRITICO:
Q. What efforts could you have taken in and around April or
May of 1995 to check individuals for the existence of
explosives residue?
A. We could have checked their hands to find out if their
hands were contaminated. We could have checked their shoes to
find out if their shoes were contaminated. We had an
explosives detector; and anybody coming through that area could
have been interrogated with that detector, could have been
sampled with that detector.
Q. Other than checking their shoes, are there ways that you
could have further protected from contamination with respect to
shoes?
A. I understand there is materials that you can put at
entranceways, but I've not actually seen that stuff myself.
Q. I'm sorry. I didn't understand what you said.
A. There are materials that you can put in entranceways,
sticky materials where you walk over it and your shoes -- you
know, stuff that's on your shoes --
Q. Would stick to the mat?
A. Stick to the mat.
Q. How about covering?
A. Yes. There could have been booties put on people.
Q. In your opinion, what is the -- if you have a contamination
problem in a lab, what is the most highly contaminated area
generally? Do you know?
A. I would expect that it would be where raw explosives and
evidence with explosive residues were on it would be found.
Q. My question wasn't fair --
A. Okay.
Q. -- and I don't think it was clear. Floor, wall, table,
things like that, in the trace analysis area: What would be
the most contaminated area?
A. From what I know about explosives, sir, it would be
anywhere.
Q. Okay. What was the FBI's protocol or procedure in April or
May of 1995 for testing the floors of the Explosives Unit,
Chemistry/Toxicology Unit and the Materials Analysis Unit for
contamination?
A. I'm not aware that there was one.
Q. Have you ever personally done it?
A. No. The contamination study that was done in May -- I
don't know if swabs were taken off the floor. It's been a long
time since that was done.
Q. Do you feel -- do you have an opinion as to whether or not
the FBI lab in and around April or May of 1995 should have
regularly tested the floors and other areas of the Materials
Analysis Unit, the Chemistry/Toxicology Unit, and the
Explosives Unit for contamination?
A. Yes, I believe we should have.
Q. There has been evidence in this case that when Mr. Mills
received the -- Mr. McVeigh's clothes, he brought them into the
Explosives Unit and put them on the floor. After preparing his
table, he put the box onto the table. Do you have an opinion
as to whether or not that is an appropriate method for checking
in evidence?
A. I think it could lead to a contamination issue with the
evidence.
Q. Why?
A. Because the people in the Explosive Unit that go to the
bomb range come home from the bomb range -- or I've -- you
know, I've experienced that where they come back from the bomb
range and go into the Explosive Unit area with the clothes
they've had on at the range, with the shoes they've had on at
the range. There is a high likelihood that they've brought
explosive residues back from the bomb range, and so it's -- it,
you know -- if you put something on that floor, there is a high
likelihood that you're going to pick up some contamination from
the floor.
Q. Without taking control samples of the floor on a regular
basis or at the time you placed the box on the floor, how would
you ever know if you had contaminated that evidence?
A. You wouldn't.
Q. Is packaging evidence, more than one single item of
evidence, in a brown paper bag in your opinion an appropriate
method for packaging and transporting evidence?
A. It's according to what you want to do with it when you do
the analysis. It's according to what your concerns are with
the evidence. If you're not concerned about, for instance, is
there residue on this and not residue on this one, it wouldn't
concern me.
Q. Would you agree that you might not know at the time that
you package it?
A. Certainly.
Q. And based on that, would you agree that it would be better
to package it separately?
A. Yes.
Q. You're familiar with the explosive PETN, are you not?
A. Yes, I am.
Q. If you know, is PETN used in any other method than a high
explosive?
A. Yes, I'm aware that it's used as a medicine, as a component
of smokeless powder, gunpowder.
Q. With respect to the medicine, have you checked to see if
PETN was used in medicines in the United States in and around
1994 and 1995?
A. Yes, I have.
Q. And what did you find?
A. I found there are a number of products, quite a number of
products that have PETN in them. There is quite a number of
references out there to medicinal products with PETN in them.
Q. Where did you check? What books or research did you do to
find this out?
A. I went to the U.S. Pharmacopeia, to the American Drug
Index.
Q. I'm sorry. Slow down. What?
A. The American Drug Index.
Q. What was the first one?
A. I hope I'm saying it right, sir. I'm a chemist.
Pharmacopeia.
Q. Okay.
A. I checked in references that nurses and doctors would use,
and I guess four or five of them. I looked in the Merck Index,
which is sort of a general reference that people -- that
chemists use to find out what are the uses of the drug, what
are the characteristics of -- not the drug but the chemical.
Q. And based on that research, you found that PETN was used in
certain medicines in the United States in and around 1994 and
1995?
A. I think we need to be specific about that.
Q. All right.
A. I called a couple of -- one particular drug company, and
the individual I talked to there said it was commonly used.
The references showed medicines that were -- the names of
medicines that I took to be manufactured. I -- you know,
they're American medicines, so I would expect they are
marketed.
Q. Now, you also testified a moment ago that PETN is used in
smokeless powder. Is that what you said?
A. Well, I know a reference that says that it is in smokeless
powder.
Q. Would you take a look at McVeigh Exhibit J444A there in
front of you.
A. Yes.
Q. Is that the reference that you were referring to -- 444A.
Do you have 444A?
A. No, no. I'm afraid I don't. I apologize.
Q. Well, then, I'll give it to you.
A. Okay. I'm acquainted with this reference, sir.
MR. TRITICO: Your Honor, so that we may be clear,
this is the article that was previously attached to Exhibit
J444 that was removed.
THE COURT: I understand, yes.
BY MR. TRITICO:
Q. Now, do you have McVeigh Exhibit J444 there in front of
you?
A. Yes, I do.
Q. This is a memo that you wrote to Special Agent Burmeister
on May 4, 1995?
A. Yes.
Q. Did you attach anything to the memorandum?
A. Yes.
Q. What?
A. Well, this was -- I've attached -- according to the text,
attached two papers to this. I attached this paper, this 4 --
Q. Don't hold it up yet.
THE WITNESS: Excuse me, your Honor. I'm sorry.
I attached that paper and another paper and another
document to this.
BY MR. TRITICO:
Q. Did you give this memo with the attachments to Special
Agent Burmeister?
A. Yes.
MR. TRITICO: I'll offer McVeigh Exhibit J444A, your
Honor.
MS. WILKINSON: No objection.
THE COURT: It's received.
BY MR. TRITICO:
Q. Now, does McVeigh Exhibit J444A discuss compounds --
component parts of smokeless powders?
A. Well, there is on the second page of it a Table 1 which is
entitled "Organic Compounds that May be Found in Smokeless
Gunpowder."
MR. TRITICO: Publish this?
THE COURT: Yes.
BY MR. TRITICO:
Q. This is the table you were referring to?
A. Yes, that's correct.
Q. And is PETN listed among those organic compounds that may
be found in smokeless gunpowder?
A. Yes.
Q. When we say the term "smokeless gunpowder," is that the
same thing that's inside of a bullet?
A. Yes, that's correct.
Q. Who compiled this list? Do you know?
A. No, I don't. I've got some references here, but I -- I
don't know that.
Q. Who are the authors of this article employed -- were they
employed by the Federal Bureau of Investigation? Do you know?
A. Well, Mr. Hardy was. He's Reference No. 2. And Reference
No. 2 says, "D. D. Hardy, FBI lab, personal communication,
1979."
Q. Looking at the first sentence on the first page of this
J444A, can you -- you can look at your copy, if you want,
instead of looking at the screen. That says, "In connection
with its work on mass spectrometry approach to the analysis of
gunshot residues, the FBI Laboratory has compiled an array of
23 organic compounds that may occur in smokeless gunpowders."
Is that right?
A. Yes, that's correct. So the author of this was Mr. --
Mr. Hardy.
Q. And that's referencing the list on page -- the second page
of J444A. Is that right?
A. Yes.
Q. Now, this article was published in the Journal of Forensic
Sciences; is that correct? See that at the very top?
A. Yes, I do see it.
Q. Do you consider the Journal of Forensic Sciences to be
authoritative in the field of explosives trace analysis or
forensic sciences in general?
A. Yes, I do.
Q. If you know, was any effort made in April or May of 1995 to
determine if the PETN that was found on Mr. McVeigh's clothing
was the result of gunpowder or gunshot residue?
A. I don't know.
Q. Do you have an opinion as to whether or not it would have
been appropriate for the FBI lab to make such a determination?
A. It would have.
Q. It would have been appropriate to do it?
A. Yes.
Q. Now, there is a piece of evidence that's come to be known
as Q507. I want to talk to you for a minute about that. Have
you seen a piece of evidence back in April and May of 1995 that
Mr. Burmeister had located some crystals on?
A. Yes, I did.
Q. Do you know that that's the piece of evidence that's now
called Q507?
A. I believe that it is.
Q. You regarded the finding of the crystals as brilliant by
Mr. Burmeister, did you not?
A. Yes, I did.
Q. Do you agree with the conclusions that Mr. Burmeister drew
with respect to the origin of those crystals?
A. What were the conclusions, sir?
Q. That they were deposited on there as a result of a blast or
an explosion.
A. I'm not sure that I can agree with that.
Q. Why?
A. I -- it may be because I don't have enough data, but I
understand that piece of evidence -- the crystals were ammonium
nitrate. Ammonium nitrate is very hydroscopic -- means it
picks up water very quickly. I understand that the evidence --
and if I'm wrong, please correct me. The evidence lay out
exposed to the environment, specifically rain, a very strong
rain.
Q. Would it change your opinion if you knew that the side that
Special Agent Burmeister found the crystals on was face-down
outside?
A. No, sir. It's -- there is some data missing, and it may be
just me that's missing it. But there is some data missing that
I find it an enigma what I'm looking at: that the ammonium
nitrate crystal survived in 100 percent humidity, didn't pick
up water in that hundred percent humidity situation. I don't
know how that could have happened.
Q. Why is that? You said it was hydroscopic. What does that
mean?
A. Well, it means it just -- it picks up water. It's some --
some materials, if you just lay them out in this room and there
is any humidity at all in this room, they would absorb water;
and pretty soon you'd have a little spot of water, you wouldn't
have a crystal.
In the laboratory, I've analyzed ammonium nitrate for
years; and one of the problems with it is it -- when we try to
analyze it with the X-ray powder diffractometer, very often it
picks up water while the analysis is going on and you end up
with water, with a liquid solution instead of with crystal.
And our lab has a very controlled humidity environment.
So I don't know how that ammonium nitrate survived, if
it went through a rainstorm. I don't know how it could be on
that evidence. It doesn't make sense to me.
Q. Did you have a discussion with Special Agent Dave Williams
regarding paint protocols and with respect to Q507?
A. Yes, I did.
Q. In April or May of 1995?
A. No.
Q. Well, around that time?
A. No. It was in somewhere -- September of 1995.
Q. So, after April 19 is what I was trying to get at.
A. Yes, uh-huh.
Q. Did Special Agent David Williams make to you any statement
or comment regarding the origin or how Q507 was found?
A. Yes.
Q. What did he say?
A. He told me that -- that the -- I need to make sure I say
this right: That the piece of evidence that had the ammonium
nitrate and the paint on it -- that's what we were referring
to -- had been provided to us by -- to the FBI by a civilian.
I'd raised an issue with identifying that piece as actually
coming from the Ryder truck; and he said, "Well, it's a moot
point because a civilian brought it in." And he said, "You
know, we've got a problem with the chain of custody, so we're
not going to use it."
Q. Do you have an opinion, Dr. Whitehurst, as to whether or
not if, in fact, as alleged this bomb was an ammonium nitrate
and fuel oil bomb -- do you have an opinion as to whether or
not unconsumed prills of ammonium nitrate could have been
discovered at the scene?
Did my question make sense?
A. Yes, it made sense, and I'd like to qualify it. My
training taught me that that -- that we could find prills with
these homemade types of devices that -- you know, if they
functioned improperly.
They would have to have been found in a protected
area, but it's possible it could have happened.
Q. Protected area such as what?
A. Where the weather wasn't getting to it.
Q. Like pockets in the building or things like that?
A. Sure.
Q. Could they have been discovered before the rain, if they
were outside?
A. If they were there.
Q. Do you know Mr. Ron Kelly?
A. Yes, I do.
Q. How do you know Mr. Kelly?
A. I've worked with him for 11 years.
Q. In April of 1995, was Mr. Ron Kelly qualified in the area
of explosives analysis?
A. No, sir, he wasn't.
Q. How do you know that?
A. He didn't qualify until the fall of 1995. I went to his
moot courts.
Q. In April and May of 1995, was Mr. Kelly qualified in the
area of evidence analysis and collection at a scene?
A. I don't know that, sir.
Q. Do you know if prior to April and May of 1995 -- or
actually with respect to this case, do you know if Mr. Kelly
had ever gone to a scene to be in charge of evidence collection
and analysis at the scene?
A. I'm not aware that he did, sir.
Q. Do you have an opinion as to whether or not Mr. Kelly
should have been left at the scene in Oklahoma City by himself
to collect evidence?
A. Yes, sir, I do have an opinion about that.
Q. What is that opinion?
A. I don't think at that time Mr. Kelly had the hands-on
experience needed to understand the implications of what he was
doing. I think that he could make mistakes without realizing
it.
Q. In April and May of 1995, was Mr. Kelly qualified in the
area of explosives trace analysis?
A. No, sir.
Q. Do you know Mr. Roger Martz?
A. Yes, I do.
Q. How long have you known him?
A. For 11 years.
Q. Do you have -- when you worked with Mr. Martz, did he --
did he do explosives residue analysis?
A. He conducted some of the subanalyses of the explosive
residue analysis protocol that we did, but he was not an
explosive residue analyst.
Q. What do you mean "subanalysis"?
A. There is a flowchart of what we do. I don't know -- do you
have the flowchart?
Q. Let me show you what's been introduced into evidence as
Government's Exhibit 914.
A. Yes.
Q. Is that what you're referring to?
A. Yes.
Q. Is that a protocol?
A. It's a flowchart, sir. It's not a protocol.
Q. You were talking about the subanalysis that Mr. Martz was
performing when you were there.
A. Yes.
Q. Was Mr. Martz qualified in April or May of 1995 in the area
of explosives residue analysis?
A. No, he was not.
Q. What were -- on Exhibit 914, what were the subanalyses that
Mr. Martz was performing?
A. Do you want me to point at them with a pen?
Q. If you don't mind, yes, sir.
A. I believe that he was performing -- how does this work?
Q. You need to put it on the screen. Right.
A. Okay. The solids probe, mass spec, mass spec, and the GC
mass spec, mass spec.
Q. Where is that?
A. This is not writing. It's in this block. Do you see where
the arrow is?
Q. Let me see if I can help you. You're referring to the
GC/MS/MS. Is that correct?
A. Yes, that's correct.
Q. And you're referring to the solid probe MS/MS?
A. Yes, that's correct.
Q. And what else?
A. And then the IMS.
Q. And then the IMS at the top of the box.
A. Yes. He was conducting analysis with IMS of drug materials
at that time.
Q. Now, if you'll push that button on that pen, that arrow
will go away.
A. Oh, I'm sorry. I have two arrows.
Q. Try it again.
A. Okay.
Q. There you go.
Do you have an opinion as to whether or not in April
and May of 1995 Mr. Roger Martz practiced good science in the
area of explosives residue analysis?
A. I don't think he did, sir.
Q. If Mr. McVeigh's clothes were checked in by Mr. Mills and
analyzed by Mr. Martz, then taken to Special Photo, then taken
to Hair and Fiber and then to Mr. Steve Burmeister, do you have
an opinion as to whether or not that is an appropriate method
for handling explosives residue analysis?
A. I don't think it's an appropriate method, sir.
Q. Why?
A. I don't think that Mr. Martz does a reliable job on
explosive residue analysis. He hadn't been trained, tested and
qualified. We don't check the other areas for explosive
residues. We --
Q. You. When you say "the other areas," do you mean Special
Photo and Hair and Fiber?
A. Yes. They receive evidence that we've already determined
there is residues on, but we don't know how they handle that.
And just because we determined residues are on a material
doesn't mean we've taken it all off, and they could have
contaminated their areas without knowing it.
It's not their area of concern, and so it wouldn't be
something they'd be aware of. So if Mr. Martz did the work and
then it went to those other areas and then it went to
Mr. Burmeister, it might not -- it might get to Mr. Burmeister
with stuff on it that it didn't get to Mr. Martz with.
Q. In April and May of 1995, who was the most explosive -- who
was the most experienced explosives residue analyst at the FBI
lab?
A. I was.
Q. Were you sent to Oklahoma City to participate in the
investigation of this case?
A. No, sir.
MR. TRITICO: I thank you, sir. I'll pass the
witness.
THE COURT: Ms. Wilkinson?
CROSS-EXAMINATION
BY MS. WILKINSON:
Q. Good mornings, Dr. Whitehurst.
A. Good morning, ma'am.
Q. We have talked before, haven't we, about some of these
concepts?
A. Yes, we have.
Q. And you have explained to me and some members of the
prosecution about some of the issues involving chemical
analysis of explosive residue and potential contamination;
isn't that right?
A. Yes, ma'am, I have.
Q. In fact, you've given a sworn deposition in this matter,
haven't you?
A. Yes, ma'am, I have.
Q. And you've made some statements in that -- in that
deposition that are contrary to what you've said today, haven't
you?
A. I -- I'm not sure. Can you refer to them?
Q. Do you recall talking about Mr. Kelly and his ability to --
and your opinion about his ability to collect evidence at the
crime scene?
A. Yes.
Q. And at that time, did you say that you believed he was
qualified to collect evidence?
A. Yes. I was very proud of what he did.
Q. So you've changed your opinion since December of 1996. Is
that what you're telling this jury?
A. That's what I'm telling you, yes.
Q. And since that time, you've had some reason to change your
opinion, haven't you?
A. Yes.
Q. You haven't had access to the evidence in this case,
though, have you?
A. No, ma'am.
Q. You've had --
A. I -- Mr. Burmeister was working on the thing with ammonium
nitrate on it, and he asked me to look at that. I mean --
Q. That was long before December of 1996, wasn't it?
A. Sure.
Q. In fact, you saw Q507 under the microscope with
Mr. Burmeister, didn't you?
A. Yes, I did.
Q. And that's when you commented at that time to others that
his work in finding those crystals was brilliant?
A. Yes, absolutely.
Q. And at that time you didn't raise any issue about the
ability of those crystals to be on Q507 after they'd been
recovered from the crime scene; isn't that right?
A. That's correct.
Q. And Mr. Burmeister told you at that time that some of those
crystals were actually embedded into the plywood; isn't that
right?
A. No, not at that time.
Q. You didn't observe that when you looked through the
microscope?
A. No, ma'am.
Q. You didn't look at the piece of evidence very carefully?
A. No, I looked at it. I just didn't see it.
Q. So you don't know all of the conditions of the crystals
that were embedded in Q507, do you?
A. No, ma'am.
Q. Let's talk about the laboratory for a moment. You've told
us on many occasions, haven't you, that there is no systemic
contamination in the FBI Laboratory; isn't that right?
A. In the areas that -- that I have tested, yes, that's
correct.
Q. And that's pretty obvious, because you haven't found these
residues on lots of the evidence that's been tested in this
case or any other case; isn't that right?
A. Yes. That is correct, ma'am.
Q. So by common sense, we know there isn't systemic
contamination in the lab; right?
A. Yes.
Q. And you've told me that before yourself; right?
A. Yes, ma'am. Sure.
Q. So the only thing we're dealing is with potential, random
contamination; correct?
A. Yes.
Q. And that's why you engaged in this study back in May of
1995?
A. Yes, that's correct.
Q. And when you did that, you tested the areas that you
thought would be most likely to have some kind of
contamination; correct?
A. I tested the units, the Explosive Unit, the Materials
Analysis Unit, and Chemistry/Toxicology.
Q. Well, you didn't test the units; you tested specific areas
within each unit, didn't you?
A. Yes, we did, of course.
Q. In other words, for example in the Explosive Unit, you
tested specific examiners' and technicians' bench areas so you
could determine exactly where there was contamination if you
found it, didn't you?
A. That's not -- that's not quite, ma'am -- quite -- we
tested -- you know, if I test this bench right here and I do a
swab right here, if there is contamination here, I wouldn't
know exactly that there is contamination here. Do you know
what I'm saying?
Q. I do.
A. Okay.
Q. Okay.
A. So we did -- we only did 50 swabs.
Q. Are you sure?
A. Well, that's what I thought.
Q. Didn't you say in deposition that there were about 75
swabs?
A. Okay.
MR. TRITICO: Your Honor, excuse me. May I have a
cite to the page and line of the deposition when she uses --
THE COURT: Well, if you're going to cross-examine on
the deposition, you ought to be specific with respect to the --
MS. WILKINSON: I can do that, your Honor.
THE COURT: -- page and line.
MS. WILKINSON: Would you like me to go back to the
other questions I asked, like about systemic contamination?
THE COURT: No, just from here on.
MS. WILKINSON: Okay.
BY MS. WILKINSON:
Q. Dr. Whitehurst, do you recall a contamination -- the
details of a contamination study that you did in May of 1995?
A. Not specifically.
Q. Would it refresh your recollection to see the notes that
you typed up concerning the study?
A. Yes, it would.
Q. Does that indicate all the swabs that you took and the
runs; that is, the tests that you did on those swabbings?
A. I believe it does.
Q. And let's go back to what areas you tested. You were
trying to explain to us that while you did test specific areas,
that couldn't tell you exactly where the contamination was
from; is that correct?
A. Sure. It would give us a general idea of sort of -- was
there any contamination at all.
Q. But you did look at specific areas like the benches in the
Explosives Unit; correct?
A. Yes.
Q. And in fact, not only did you look at those areas, but you
had photographs taken so you could determine where the swabbing
had been taken; didn't you?
A. Yes. That's correct.
Q. So we can go back and look at those photographs and find
exactly where there was or was not contamination; correct?
A. No, ma'am.
Q. Well, didn't you direct the person who took the swabs to
take them in specific areas?
A. Yes, but again, we need to be very careful here. We can't
determine where there was and was not contamination. We can
determine that there was or was not contamination at the spot
that we rubbed, that we took a swab from. Again, if there
was -- if here -- a thing that said "files near 80," whatever
that was. If we went to the top of the file on the front
corner but we didn't go to the back corner -- do you see -- so
we have to be careful. In a contamination study, you have to
be very specific, but -- you can overinfer the data and say the
whole laboratory is contaminated, or underinfer it.
Q. So all the data can tell is in that specific spot where the
person took the swab, if there was any contamination, it was
found in that one spot. Correct?
A. Yes. And by doing sort of a broad sweep -- this was our
initial -- what do you call it -- "try" at this. By doing sort
of a broad sweep, you get an idea where there might be more
problems that we have to look for.
Q. So even if you had swabbed 100 areas, you could not tell
this jury for sure that there was no contamination in the
laboratory -- correct -- because you could never swab the
entire laboratory; right? It would be --
A. Yes, but it would -- the more that we did, the better idea
we'd get for the level of -- you know.
Q. So you used this study as a general guide -- guideline to
determine if there was contamination in those areas; correct?
A. Yes.
Q. And you didn't just look at one place in the Explosives
Unit; you looked at numerous places. Correct?
A. That is correct, yes.
Q. And you looked in Mr. Burmeister's work area, didn't you?
A. May I read? Do you know particularly where on here?
"Burmeister --"
Q. Please don't read the document out loud.
A. I'm sorry. I apologize.
Okay.
Q. And there was no contamination in Mr. Burmeister's area,
was there?
A. No, there was no contamination at the spots that we
checked.
Q. So when you found it back in the early 1990's and you told
Mr. Tritico you weren't sure whether you had tested his area
again, you had, hadn't you?
A. Yes.
Q. And there was no contamination there.
A. Yes.
Q. And when you tested the Explosives Unit, you tested
numerous areas in there, didn't you?
A. Yes.
Q. And you only found one area where there was a finding
consistent with PETN; correct? That was Bench No. 5?
A. Yes. That's the results.
Q. And that's not the bench where Mr. Mills works, is it?
A. I don't know that. I don't know the numbers on the
benches.
Q. If I showed you the photographs, would that refresh your
recollection?
A. Yes, uh-huh.
MR. TRITICO: May I?
THE COURT: Yes.
MS. WILKINSON: You have them. They're documents from
the contamination study.
MR. TRITICO: Okay.
THE COURT: Do you have copies of this?
MR. TRITICO: I think so.
THE COURT: All right.
THE WITNESS: Excuse me, ma'am.
BY MS. WILKINSON:
Q. Yes.
A. Did you want me to look at this and say something?
Q. I wanted you to determine whether Bench No. 5 was
Mr. Mills' bench.
A. It looks like it from here. It's kind of dark, but it
looks like it.
Q. And how can you tell that?
A. I see there is some lights over behind it, and it --
I've -- you know, I've been going over to where his area is at
for a long time. You know, I could be wrong about that; but it
does look like that.
Q. So if Mr. Burmeister and Mr. Mills reviewed this study and
determined Bench 5 was not theirs, would you agree, or
disagree?
A. If they reviewed the study and said it was not theirs, then
I'd have to go and put this right up next to the bench and, you
know, do a comparison.
Q. Okay.
A. I have no reason to believe that's not the bench, but it's
kind of dark and -- I'm sorry.
Q. When you did this contamination study, you wrote a summary
page, didn't you, about the findings of whether you found
residues or not in certain areas?
A. Yes.
Q. And you noted that there was only one finding of PETN in
the entire Explosives Unit -- correct -- in the unit itself?
A. Yes, that's correct. That's correct.
Q. And that you tested Burmeister's room and Ron Kelly's area
and there were no hits recorded. Correct?
A. Yes, that's correct.
Q. And this was done right at about the time -- shortly after
the evidence in this case that Mr. McVeigh's clothing and Q507
were tested; correct?
A. Yes. It was done in May.
Q. Would you agree, Dr. Whitehurst, that when evidence is
tested and there is no residues found, that's a pretty good
indication that there is no contamination as to that evidence,
if you find no positive hits for explosive residue?
A. Yes.
Q. And you feel comfortable saying there is no contamination
with that evidence; correct?
A. At the spot you've tested, yes. I mean, if there is
nothing there, there is nothing there.
Q. So there is no evidence of contamination; correct?
A. Yes, that's correct.
Q. So in this case, if there were hundreds of tests conducted
by Mr. Burmeister and very few findings of high-explosive
residue, that would make it less likely that there had been
contamination; correct? Less likely?
A. Contamination of what?
Q. Of the evidence, or of the laboratory in the areas in which
he was testing the evidence.
A. It would make it less likely that there was a systemic
contamination.
Q. Okay. Well, if there was random contamination, you would
expect to see it more than once -- correct -- even if it's
random, over hundreds of tests?
A. Not necessarily.
Q. So we're now focusing, then, on one particle of, let's say,
PETN that just happens to --
A. Can I give you --
Q. -- get on a piece of evidence? Correct? Is that what
we're focusing on?
A. Well, I'm not sure --
Q. We've eliminated systemic contamination. Correct?
A. Yes, that's correct.
Q. And we have all these tests that show very few positive
findings, so we're not having repeated random contamination;
correct?
A. I think you're misunderstanding "random contamination."
Q. Random, I take it, is a commonsense definition; correct?
A. No. There is no common sense to this at all. That's what
the problem is. Can I explain?
Q. Sure. Tell us why there is no common sense at all.
A. If Mr. Mills, for instance, was to take one piece of
evidence and drop it on the floor and there was contamination
on that floor -- I mean, suppose he did that. Suppose when he
picked his box up and put it on his lab bench and one piece of
evidence touched that, that represents a potential for
contamination. Just because nothing else touched it, that
doesn't weigh out the possibility for random contamination.
Q. Right.
A. If your practices are such that there is a possibility for
contamination, an alternative explanation for why we found this
is that somebody contaminated his table or whatever. Just
because you didn't see many, many pieces without something on
it doesn't mean that wasn't a contamination.
Am I clear?
Q. Yes, I believe so.
A. Okay. I'm sorry.
Q. You're telling us that there is a chance of a once-in-a-
lifetime contamination -- correct -- that wouldn't repeat
itself, totally random, occurs once and you never see a repeat
of a contamination; correct?
MR. TRITICO: Excuse me. Even though this is cross,
I'm going to object. Argumentative. Badgering the witness.
THE COURT: Do you understand?
THE WITNESS: Yes, I do, your Honor.
There is a chance of contamination if you haven't
ruled it out.
BY MS. WILKINSON:
Q. That's not my question, Dr. Whitehurst. My question is are
you now focusing on this one incident -- you're talking about
the hypothetical with Mr. Mills putting the box down on the
floor, picking it up, taking the piece of evidence and somehow
him putting that piece of evidence in the exact right spot,
that explosive residue, transferring to that piece and then it
getting to Mr. Burmeister and him finding a positive finding.
You're saying that that could occur once and not occur over and
over again; correct?
A. Yes, that is correct.
Q. And that would just be a once-in-a-lifetime, random
contamination; correct?
A. That particular contamination.
Q. And we can never eliminate that, can we?
A. Yes, we can.
Q. We can eliminate the possibility of any contamination?
A. We can eliminate it by maintaining more proper controls.
Q. Can we eliminate it, or can we minimize it?
A. Oh, we would have to minimize it, yes.
Q. So we could never eliminate the possibility of
contamination, could we, Dr. Whitehurst?
A. No, you couldn't.
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