Good cop, bad cop
By SYDNEY P. FREEDBERG
The careers of two stellar FBI agents collided over the most important questions of truth. The collision erupted in scandal. One of the agents was allowed to retire with honor. The other was drummed out. You might not guess which is which.
For years, Michael P. Malone and Frederic W. Whitehurst were supersleuths in the FBI crime lab.
Malone's specialty was hair and fiber. Time and again in cases with no eyewitness, no confession and no motive, Malone would peer into his twin-eyepiece microscope and come up with the evidence that helped send somebody to prison or death row.
Whitehurst was an expert in explosives residue. Hunched over high- tech instruments, he analyzed smokeless powder and rubble left by terrorist bombs to figure out their chemical composition.
Then one blew the whistle on the other, and both highly decorated agents got caught up in one of the biggest FBI scandals in history.
The Justice Department singled out Malone, Whitehurst and 11 other agents in a scathing 1997 report that revealed forensic bungles in 18 high-profile cases, among them the Oklahoma City bombing and the O.J. Simpson murder case.
The report triggered a review of 3,000 potentially flawed FBI cases, including 263 in Florida.
It also laid open a culture war in the FBI, a clash between new forensics and old police values, between change and the status quo, between agents who see themselves as scientists and those who believe they are proxies for prosecutors.
As police crime labs churn out increasingly complex scientific evidence and present it to juries, that conflict grows - and with it, life-and-death consequences for criminal defendants.
Malone and Whitehurst are both out of the FBI now. Both say they're the good guy of this story.
But in the topsy-turvy world of science cops, truth is sometimes a lie and fact fiction. Bad cops can become heroes and good cops can take a fall.
In some ways, Malone and Whitehurst were a lot alike.
Both were big, burly guys with tenacity and charm, driven by an overwhelming desire to succeed. Both seemed to fit the Hollywood image of straight-shooting G-men. Both won fame in the glassed-in laboratories of Washington's J. Edgar Hoover Building, where hundreds of agents, scientists and technicians test everything from paint chips to blood and handwriting.
But in other ways, they were as individual as fingerprints.
Malone, cool and low key, shied away from controversy. Whitehurst, intense and fiery, couldn't avoid it.
Michael Preston Malone, now 55, joined the FBI first, in 197O.
The son of an Army chief warrant officer, he earned bachelor's and master's degrees in biology and taught high school for two years before switching career paths.
"I wanted to serve my country," says Malone. "The FBI had a good reputation and it paid well."
Six-foot-three, with boyishly distinguished looks, he seemed ideal for the role: mature, loyal, a family man well-suited for teamwork in a big organization.
After experience busting criminals in Cincinnati and New York, Malone won a spot at headquarters, to train as a forensic examiner in the lab's hair and fiber unit.
Hair as evidence, first made famous in the 1880s by the fictional detective Sherlock Holmes, was by the 1950s an established form of forensic evidence, especially in murder cases.
The tool of the trade was a microscope. Comparing strands of hair from known and unknown samples, Malone would study similarities and differences in length, color and texture.
By examining a hair, he says, he learned to tell a person's race, the area of the body the hair came from and whether it fell out or was pulled.
Malone quickly became a star. He grabbed headlines for his work in the "Fatal Vision" appeals of Jeffrey MacDonald, the Green Beret Army surgeon convicted of murdering his wife and children at Fort Bragg, N.C. He won praise for helping with the case against John Hinckley, who shot President Ronald Reagan. And Hillsborough County sheriff's deputies credited him with finding the key evidence - tiny strands of fiber - that put away Bobby Joe Long, a Tampa Bay area serial killer who tied up his victims before raping and strangling them.
The more famous Malone got, the more eager police and prosecutors around the country became for his testimony.
"The whole time I was in the lab I got nothing but exceptional and superior ratings," Malone says matter of factly. "This is going to sound like bragging, but we were the best in the world for hairs."
Hair was never an exact science, however. Hairs belonging to two people, for example, often have the same color, thickness and length. There were no accepted standards for analyzing hairs, and examiners had to rely on their eye, on experience and often on educated guesswork.
And in time, with all the glory Malone achieved came whispers, whispers that turned to murmurs and then a steady buzz: Mike Malone was sloppy. He was a government shill. He stretched the truth, maybe even made things up.
Defense lawyers, once seemingly awestruck by his testimony, began to challenge it.
In 1987 and again in 1988, the Florida Supreme Court threw out murder convictions that hinged on his hair testimony.
In 1989, William Tobin, the FBI's chief metals expert, accused Malone of intentionally giving false testimony in a case.
It wasn't just any case, either. A judicial panel was deciding whether to recommend the impeachment of then-federal Judge Alcee Hastings of South Florida.
A jury in Miami had acquitted Hastings of taking a bribe to fix a case, but the FBI suspected he lied to win acquittal.
The alleged payoff was made in Georgetown, near a leather shop. Hastings had testified he was in Georgetown to find a shop to fix a broken purse.
The FBI asked Malone to test the purse strap to see if it had been broken accidentally by snagging it on something, as Hastings said, or whether it was too strong to break and had been cut.
Among other exams, Malone said he performed a "tensile test," measuring the force needed to break an object, and concluded the strap had been cut.
His testimony, and the judicial panel's subsequent report, helped prompt the U.S. Senate to remove Hastings from the bench. (Three years later, Hastings was elected to Congress.)
Tobin agreed the strap had been cut. But Tobin said he, not Malone, had performed the tensile test, and, in a six-page memo, he detailed 26 other instances where Malone made "false . . . contrived/ fabricated . . . deceptive" statements under oath.
Things looked bad for Malone. "Sad to say, you are right on every point," Tobin's supervisor wrote on a Post-it note.
But when the memo reached a higher up, then nothing happened. Instead, the quiet, easygoing Malone kept moving up the FBI's career ladder - nominated twice for the bureau's top award.
Turning over rocks
Almost from day one, the muscular, 6-2 chemist began turning over rocks.
In Houston and Los Angeles, he complained about agents who padded time cards. And when the FBI moved him to the lab to be its top explosives-residue expert, he immediately stirred things up. He questioned a colleague's work and wanted to know why there was so much dirt, clutter and "black rain" - smut, dust and fly ash - spewing from the ventilation system.
How could anyone know if vapors from one bombing interacted with vapors from another? How would anyone know if hairs came from a crime scene or from the crime lab? How in the world had this lab gained a reputation as the pinnacle of forensic science?
Unlike Malone, whose field was a subjective art, Whitehurst saw his work as an objective science. To figure out what was in a bomb, he sifted through reams of data, researched rare chemical compounds and sometimes even experimented by concocting his own blasting devices.
Whitehurst spent nights, weekends and holidays scrubbing the lab, retrofitting it with state-of-the-art equipment and throwing himself into pressure-filled international cases. He analyzed chemicals in a Kuwait car bomb aimed at former President George Bush. And he served as a liaison between American and British scientists after Pan Am Flight 103 exploded over Lockerbie, Scotland.
His love for the precision of science helped put him at the top - "unequaled in any laboratory," an FBI evaluation said. But his intensity and cocky ebullience also rubbed some people the wrong way.
"They wanted to dictate truth," Whitehurst says, "instead of discovering it."
One day in the fall of 1990, he ran into Bill Tobin, a kindred spirit. They groused about agents misusing frequent flier miles. Tobin mentioned getting heartburn when he saw Malone manipulate evidence in the Hastings case.
"Forensic prostitution," Tobin called it.
Whitehurst was floored. He had worked next door to Malone for three years and never heard anything bad about him.
"Some people in the lab were real testosterone tyrants," Whitehurst recalls. "They were going to make a case for prosecutors no matter what. Malone didn't strike me that way."
Shortly after that conversation, Whitehurst was suspended for a week. His offense: Without first notifying prosecutors, he told a defense expert in a San Francisco bomb-trafficking case that another agent had misstated forensic evidence.
When he returned to work, Whitehurst was angry. But instead of playing it safe, he asked for an audience with his superiors. For two hours, he complained about scientific misconduct within the lab and innocent defendants who could get hurt by bad science. He cited, among others, the Hastings case.
Whitehurst says he left the meeting relieved. Finally, he thought, the FBI was going to take his complaints seriously.
He was wrong. He continued to challenge each rung of the management but kept running into stone walls.
Blackmail and black magic
By 1993, the pressure had become enormous. Whitehurst, who was attending law school at Georgetown, was in the law library one day when he got a call: The World Trade Center had exploded.
In New York, working 22-hour days, he says his supervisors tried to get him to doctor a report to say he had found traces of urea nitrate at the bomb scene. He refused.
At an Arab suspect's home, the FBI had discovered urea nitrate crystals that some agents were claiming were mixed into a urea- nitrate bomb.
But Whitehurst, one of only two agents on the scene qualified to say what was in the bomb, didn't know for sure.
His analysis showed that residue left by the bomb could have been urea nitrate. It also could have been left by dynamite. Or any number of ammonium nitrate fuel oil mixtures. What's more, even if it was urea nitrate, it didn't necessarily come from a bomb. Maybe it was from car exhaust. Or it could have come from sewage pipes in the skyscraper that burst in the explosion.
Convinced that a fellow agent had decided the Arab was guilty, then filled in the blanks with bogus chemical data, Whitehurst and his partner set up a trap.
They prepared two samples - one using Whitehurst's urine, the other commercial grade fertilizer.
They labeled them as evidence from the suspect's home and handed them to agent Roger Martz. He quickly reported that they were from a urea-nitrate bomb. "These results are blowing my machine away!" Whitehurst quoted Martz. (Martz testified later that he never said the samples were urea nitrate, only that his instruments detected urea and nitric acid.)
When Whitehurst notified a supervisor, his bosses were not amused. He says a supervisor got furious and told him never again to embarrass a fellow agent.
By then, however, he had begun sharing everything he suspected with the Justice Department's inspector general, the office that investigates misconduct in any part of the Justice Department, including the FBI.
In 237 letters, he alleged examiners had committed perjury in big bombing cases. He fingered managers for closing their eyes to misconduct. He charged that there was a code of silence in the lab and that the system counted arrests and convictions as if they were adding corpses to the weekly body count.
He mused about blackmail, black rain and "modern scientist techniques . . . being caught up . . . by the practice of 'black magic.' "
The impact of Whitehurst's whistle-blowing reverberated through the lab. Behind his back, some fellow agents labeled him a rat. Rumors circulated that Whitehurst was a far-right gun nut, so over the top that once he burned his arm with a Bic lighter to prove a case against a child abuser.
Finally, in May 1994, despite a file bulging with commendations, the FBI transferred Whitehurst involuntarily to the lab's paint section.
Shortly thereafter, Malone was transferred, too. But for him, it was a matter of choice. The bureau was looking to reassign agents from headquarters to the street. Always the dutiful soldier, Malone left for the FBI's Norfolk field office.
The lab furies boiled over in September 1995, when ABC's Prime Time Live obtained some of Whitehurst's 1,000 pages of letters to the inspector general.
The program's broadcast turned him into an instant celebrity. A covey of reporters descended on him. Defense attorneys subpoenaed him in the O.J. Simpson murder and Oklahoma City bombing cases. And at the Justice Department, the inspector general finally began investigating with zeal.
Isolated in the paint unit, Whitehurst continued to push himself, sometimes with tears rolling down his cheeks. He thought about shooting at an invisible enemy at a tree line in Vietnam. He thought about his family's future. He thought about FBI buddies who lied to advance their own careers. And he thought about Mike Malone.
"I began to hear more and more from people in the forensic world questioning Malone's work product," he says. "Something was just not right."
Whitehurst's misgivings deepened when a section chief told him the FBI was pursuing DNA analysis for hair because microscopic exams were proving so prone to error.
He also heard from Florida Department of Law Enforcement examiners that, for some reason, Malone, a native Floridian, always seemed to be on the lookout for Florida cases to get involved in.
They were worried, Whitehurst says, that Florida prosecutors were "witness shopping" for Malone's testimony.
One FDLE man recounted how he had tried without success to get his superiors to do something about Malone. The reason nothing happened: "Malone is very popular with the prosecution and (the FDLE) is reluctant to criticize the FBI," Whitehurst says he was told.
There was something else that didn't fit together - something Bill Tobin had mentioned: In the Alcee Hastings case, Malone had said that one reason he knew the purse was deliberately cut was because he was a weightlifter and he couldn't manually break the strap.
Whitehurst, a weightlifter himself, had never seen Malone in the FBI gym. Neither had Tobin.
With a lull in the inspector general's investigation, Whitehurst strode into Tobin's office one day in the spring of 1996. He asked for a copy of the Malone/Hastings memo. Then he carried it over to the Justice Department and dumped it into an investigator's lap.
Finally, Mike Malone began feeling some heat.
In 1996 and again in 1997, Justice Department investigators grilled him about the Hastings case. Malone acknowledged that at times, he testified as a "layman," not an expert, but he insisted the prosecutor knew that. He said he made minor misstatements but denied deliberately lying under oath. He said he didn't perform the tensile- test on Hastings' purse; Tobin did.
"I guess I said that because I was right there," Malone told the investigators. "Technically, it's wrong."
(He says now that he did work out at the FBI gym and other places; Tobin and Whitehurst just didn't see him).
When then-Inspector General Michael Bromwich released his 517- page report in April 1997, he hammered Malone for "testifying falsely."
The report stopped short of accusing anyone of fabrication of evidence, as Whitehurst alleged, but it criticized 12 other agents, including Whitehurst, for errors in testimonyand scientifically flawed reports in some of the most celebrated criminal cases of the century.
Suddenly, Malone found himself in the downdraft of celebrity, avoiding reporters who, he says now, were unfairly trashing him.
Bromwich recommended that Malone be disciplined, but the "false testimony" allegation ultimately went nowhere. The FBI defended him, saying he might have been misleading but "was not intentionally deceptive."
The Justice Department agreed. Saying the Hastings case was too old and the mistakes too small, prosecutors declined to discipline Malone or even give him a letter of censure.
He again voluntarily transferred, this time to the Richmond field office to be near his aging mother-in-law. The FBI kept assigning him big cases and prosecutors kept praising him.
Still, his work in up to 5,000 cases - including 500 trials (more in Florida than anywhere) - became suspect.
"Oh, my God,' Nick Cox, a former Hillsborough prosecutor, remembers telling himself. "This is going to be unbelievable. A gob of cases are going to be in trouble."
In Lake County, Malone fended off a charge he embellished evidence against James Duckett, a former police officer on Florida's death row for raping and killing an 11-year-old girl.
And he shrugged off a new nickname: Jay C. Smith, a former Pennsylvania school principal freed from death row, dubbed Malone "Agent Death" because, Smith says, Malone could find hair and fiber evidence where none existed.
By the fall of 1999, new reports trickled in from the Justice Department, showing Malone had made forensic errors in at least four Tampa Bay area homicide cases. But like past obstacles, the new ones didn't prove to be a problem. In December 1999, Malone quietly retired, leaving the FBI on good terms, with a full pension.
'Dumbo or Rambo?'
There was no graceful exit for Whitehurst, however.
Inspector General Bromwich criticized him for some of the same mistakes the chemist had laid at his colleagues' door: failing to document forensic tests, overstating allegations, using "hyperbole and incendiary language that blurred the distinction between facts and his own speculation."
Investigators depicted him as a G. Gordon Liddy type, some sort of loose cannon or war casualty still haunted by memories of Vietnam.
In tacit acknowledgement that some of Whitehurst's criticisms were well-founded, the FBI ordered reforms in the lab. But Whitehurst himself was suspended, escorted from the FBI building and stripped of his gun and gold badge.
On Capitol Hill, lawmakers expressed outrage. A whistle-blower had revealed serious management failures at the FBI, and he was neither praised nor thanked. Instead, said Sen. Charles E. Grassley, R-Iowa, a "true national hero" had been "punished for committing truth."
Disappointed and hurt, Whitehurst admitted mistakes but dismissed many of the Justice Department's criticisms as "internal marketing." He sued the federal government for retaliating against a whistle- blower and vowed to get back his job.
But then he slipped away. After the bureau agreed to reinstate him and pay a settlement of $1.16-million (plus legal expenses), Whitehurst quit and moved his family to the eastern North Carolina town of Bethel, a snug tobacco community where the first Whitehurst bought land in 1760.
He kept the heat on the FBI by demanding documents about suspect examiners and by campaigning to get labs across the country audited, inspected and regulated. He also found mellower missions - singing in the United Methodist church choir, leading the Rotary Club, tangling with oldtime politicians on the town council, and studying for the bar exam.
"People still tell 'crazy Whitehurst' stories," he says, adding that he enjoys "hiding" in Bethel and watching his 9-year-old daughter grow up.
Whitehurst's forensic consulting office, located in a former bank building, is cluttered with FBI files. He answers volumes of e-mails from lawyers and reporters seeking forensic advice, pores over reports seeking innocent victims of lab misconduct and lectures from Mexico to Michigan on whistle-blowing and government secrecy.
From time to time, he drives his red Ford pickup to Washington to mingle with the Beltway crowd or push for grant money for his Forensic Justice Project, which reviews forensic evidence and points out errors that could compromise a fair trial.
Whitehurst earns an average of $150 an hour for consulting work, and his whistle-blower settlement, paid out through annuities, totals $95,000 a year. That's $8,000 less than his FBI salary. He doesn't get cost-of-living allowances or health insurance. His wife, Cheryl, whom he credits with getting him through his ordeal, was forced to quit her $60,000-a-year job at the FBI.
"We beg for whistle-blowers," he says, "and then we cut their guts out and stomp them when they come forward."
Does he blame himself at all? Does he think excessive pride ever got in the way of his judgment?
"I don't think so but others have felt that way at times," he says. "What drove me was confusion over how all of this could have been so open, with everyone knowing and talking about how bad all this was, and doing nothing, nothing at all but talking about it in the hallways of the Hoover Building."
Whitehurst's bafflement about Malone never left him. He still collects reports of Malone's work, searching to understand why the FBI and the Justice Department treated him with kid gloves.
For at least 20 years, Whitehurst discovered, the FBI had no proper protocols to analyze hair, even though it had a pretty good idea that hair evidence had a high error rate. Then, in the mid '90s, DNA technology began to expose hair as notoriously unreliable; "junk science," its critics call it.
A possible motive for official inertia was becoming clear. "Mike worked too many high-profile cases," Whitehurst says. "If they (the FBI) took him out, he could turn on his keepers."
Whitehurst kept puzzling over something else: Were Malone's problems a case of extreme sloppiness or intentional lying? Was he "a dumbo or a Rambo?"
Malone could have simply misunderstood the significance of his data, Whitehurst says. Or he could have been a victim of a lab culture that rewarded, instead of punished, examiners who stretched the truth. Or maybe he wanted to be a hero too much.
"To survive in that laboratory, Mike had to do what he did," Whitehurst says. "He had to quit asking questions about the correctness of his work. He had to render opinions that produced convictions or someone else would have."
Bromwich, the former inspector general, says he wishes now his report had made it clearer that Whitehurst deserves "full credit" for exposing serious misconduct, despite his mistakes. "Many of the positive changes taking place in the lab today are attributable largely to Dr. Whitehurst's persistence," says Bromwich, now a private lawyer in Washington.
Bromwich says he, too, remains troubled by the Justice Department's failure to hold Malone accountable. "I don't think any agent should be able to get away with intentionally testifying falsely without suffering punishment," he says.
Two and a half hours away from Bethel, Mike Malone lies low in a middle-class, tree-shadowed suburb of Richmond. He does carpentry jobs for his wife in the garage of their $197,000 house. He works on his golf game. And he rarely thinks about hair.
"Nobody's convinced anybody in a black robe that I've done anything wrong," Malone says. "I did the best I could. Crime labs aren't perfect. People aren't perfect."
His black dachshund, Otto, barks on the front porch in the sun.
At his front door in khaki pants, blue polo-shirt, white socks and baseball cap, Malone is a little "gun shy" at first about talking to a St. Petersburg Times reporter. Then, he agrees to a series of interviews over the next few months, and he describes how he fell victim to a hostile press, politically motivated prosecutors and colleagues he suspects were jealous , disloyal or incompetent.
Why does he think Whitehurst blew the whistle on him?
"Maybe he needed some sort of scapegoat," Malone replies. Or "do you think he might have Vietnam stress syndrome?"
Why does Whitehurst keep pursuing him now?
"I don't know what's in Fred's head," Malone says. "I know he's on a mission to free all the wrongfully convicted people of the world. But Fred is not a hair expert, in any way, shape or form. Just because he doesn't like the way I did it, that isn't going to get him anywhere."
Malone insists his work was closely checked by supervisors or another hair examiner.
If he made mistakes, he adds, they were honest ones. The Justice Department misunderstood his role in the Alcee Hastings case, he says, calling critiques of his other hair and fiber work "ridiculous," "nitpicky," "splitting hairs, if you excuse the pun."
There was no rational reason for him to lie, Malone says, not for ego or glory.
He doesn't lose sleep over defendants who may have been hurt by his testimony. If anything, he portrays himself as a victim of new technology and changing forensic standards. If DNA testing can right any wrong hair calls he made, that's good, he says.
Malone denies he favored prosecutors. He ticks off cases where he helped clear the wrong suspect or testified for the defense. Occasionally, he says, "cranked-up" prosecutors tried to get him to embellish testimony, but "we always stuck to our guns."
He blames some prosecutors, however, for exaggerating hair evidence's importance. And he says defense attorneys (especially in Hillsborough County) who failed to hire their own experts were lax. "If they thought something I said was out of line, they should have challenged me."
Since leaving the FBI, Malone's hair has gone more silvery. He still is loyal and doesn't criticize his employer. He still revels in putting serial killers behind bars and loves to talk about the high- profile cases, even though he can't remember details of many small ones.
To police and prosecutors, Malone remains a hero. Three months ago, in fact, he was in Tampa having a quiet dinner with two buddies from the Hillsborough County Sheriff's Office. Two mornings later, he was in the spotlight again, testifying for the Hillsborough state attorney in a death penalty case.
But the calls to take the stand don't come much any more. Malone wonders if somebody in the Justice Department is thwarting attempts to get his testimony.
"Maybe," he says, sounding a bit forlorn, "I've been shunned."
- Times researchers Kitty Bennett and Caryn Baird contributed to this report.
FBI lab over the years
1932: Lab created as a small research facility under J. Edgar Hoover. In its first year, scientists examine 963 pieces of evidence, most involving handwriting and firearms analysis.
1950s: Hair and fiber exams become a recognized forensic science.
1974: Lab moved to the newly completed J. Edgar Hoover Building in Washington.
1988: DNA testing begins at the lab. It now accounts for about 2,000 of its exams. The lab also handles growing amounts of chemical evidence, examining drugs, the composition of bombs and claims of product tampering.
1997: Lab rocked by investigation of Justice Department's inspector general, which finds faulty work in 18 high-profile cases.
1999: FBI breaks ground on a new $130-million lab in Quantico, Va. Completion is scheduled for late this year.
2001: The lab now conducts more than 1-million forensic exams a year, analyzing everything from blood and explosives to drugs and firearms.
- Source: FBI
The bombing of the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995, is one of 18 high-profile cases mentioned in a 1997 report that revealed forensic bungles. The explosion killed 168 people, and Timothy McVeigh is scheduled to be executed May 16.
The double-murder case against former NFL player O.J. Simpson was also on the list of 18 cases the FBI forensic labs mishandled.
The case against former federal Judge Alcee Hastings, now a U.S. representative, was the first for which Mike Malone felt heat.
Malone's work in the case against Dr. Jeffrey MacDonald in 1979 earned him headlines. MacDonald was convicted of murdering his wife and children in the "Fatal Vision" case.
Michael Malone now lives in a suburb of Richmond, Va., working on carpentry projects and his golf game. "I did the best I could," he says of his time at the FBI.
Frederic Whitehurst now spends his days hiding in Bethel, N.C., and does consulting work.
FBI agent Roger Martz was a member of the team
investigating the bombing
of the World Trade Center. Frederic Whitehurst says he set a trap in
Martz claimed a substance that was not from the bomb was.