OKC Bombing Trial Transcript - 05/27/1997 21:46 CDT/CST
05/27/1997
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TIMOTHY JAMES McVEIGH,
Defendant.
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REPORTER'S TRANSCRIPT
(Trial to Jury - Volume 117)
컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴�
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 1:30 p.m., on the 27th day of May,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK M. RYAN, United States Attorney for the
Western District of Oklahoma, 210 West Park Avenue, Suite 400,
Oklahoma City, Oklahoma, 73102, appearing for the plaintiff.
JOSEPH H. HARTZLER, BETH WILKINSON, SCOTT MENDELOFF,
JAMIE ORENSTEIN, AITAN GOELMAN, and VICKI BEHENNA, Special
Attorneys to the U.S. Attorney General, 1961 Stout Street,
Suite 1200, Denver, Colorado, 80294, appearing for the
plaintiff.
STEPHEN JONES, ROBERT NIGH, JR., ROBERT WYATT, and
AMBER McLAUGHLIN, Attorneys at Law, Jones, Wyatt & Roberts, 999
18th Street, Suite 2460, Denver, Colorado, 80202; JERALYN
MERRITT, 303 East 17th Avenue, Suite 400, Denver, Colorado,
80203; CHERYL A. RAMSEY, Attorney at Law, Szlichta and Ramsey,
8 Main Place, Post Office Box 1206, Stillwater, Oklahoma,
74076, and CHRISTOPHER L. TRITICO, Attorney at Law, Essmyer,
Tritico & Clary, 4300 Scotland, Houston, Texas, 77007,
appearing for Defendant McVeigh.
* * * * *
PROCEEDINGS
(In open court at 1:30 p.m.)
THE COURT: Be seated, please.
(Jury in at 1:31 p.m.)
THE COURT: Please resume the stand.
Ms. Wilkinson, you may resume your questioning.
MS. WILKINSON: Thank you, your Honor.
(Frederic Whitehurst was recalled to the stand.)
CROSS-EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Dr. Whitehurst, on direct examination with Mr. Tritico, you
discussed your opinion about the crystals on Q507. Do you
recall that?
A. Yes, uh-huh.
Q. And Q507, again, we're referring to Government's Exhibit
664 which is that portion of Ryder truck, that panel that has
yellow and red paint on the side; is that your understanding?
A. I know what I was talking about, Q507, but --
Q. Do you know what Q507 looks like?
A. Yes, I do.
Q. What does it look like?
A. It's a piece of material that's got like a red and some
yellow and some weaving material in it.
Q. How big is it?
A. Oh, I guess it's about 9 by 9 or 8 by -- or something like
that.
Q. 9 inches by 9 inches?
A. It's not a very big piece of whatever it is.
Q. What shape is it?
A. Excuse me?
Q. What shape is it?
Frederic Whitehurst - Cross
A. Well, it's not round. It's irregularly shaped.
Q. And that's the piece that you're referring to when you
mentioned Q507; correct?
A. Yes, ma'am, uh-huh.
Q. Now, you told Mr. Tritico, I believe, that you do not
believe or in your opinion it would be impossible for those
crystals to have remained on Q507 after a rainstorm; is that
right?
A. Yes, it's just very strange to me that it's still there.
Q. And are you saying based on that that you believe Q507 was
contaminated; that is, someone placed those crystals there?
A. No, ma'am, not at all.
Q. What are you saying?
A. I have -- there's just not enough data for me. Please,
just very frankly, I didn't analyze it, I didn't collect it.
What I understand about it was it was in a rainstorm. And what
I know as a chemist about ammonium nitrate is it's very soluble
in water, and it's just -- it's -- there's something wrong with
that thing sitting out in a rainstorm. There's just something
missing. Is the word an enigma that says that's out in a
rainstorm and there's still ammonium nitrate crystals on it.
Q. Well, you've said before that explosions are chaotic and
unpredictable events; correct?
A. Yes.
Q. And that random things occur; correct?
Frederic Whitehurst - Cross
A. Yes, uh-huh.
Q. And that sometimes you find residues, but often you don't
find any; right?
A. Yes, but that doesn't apply to this situation.
Q. Just let's stick to the question, Dr. Whitehurst.
A. Yes, ma'am, sure.
Q. And you've said sometimes you don't find any residues;
correct?
A. Yes.
Q. And in this case you thought Agent Burmeister's work was
brilliant in part because he was able to find these crystals
and not just ions, but the actual crystals themselves, correct?
A. Yes, I thought.
Q. And when you talked about the rainstorm with us, you
suggested that somehow prills might still be found at the crime
scene, even though you're telling us now you can't understand
how crystals would survive; is that correct? You said that on
your direct?
A. Yes, yes.
Q. So you're telling us that ammonium nitrate is porous and
soluble, but somehow you would expect prills that have the same
qualities to survive the rainstorm, but not crystals; is that
what you're saying today?
A. Yes.
Q. So somehow these prills would survive the rainstorm but the
Frederic Whitehurst - Cross
crystals wouldn't?
A. They're different than the crystals.
Q. They're an amalgamation of crystals, aren't they?
A. They're coated.
Q. And those coatings aren't soluble when placed in?
water?
A. Well, my data from the laboratory shows me that ammonium
nitrate itself will gather up water, but the prills -- when I
had prills, they just sit around.
Q. So if I put prills -- if you put prills in a cup of water,
you're telling me they wouldn't dissolve?
A. No, that's not what I'm saying.
Q. You're saying, then, that the prills are also soluble,
aren't they?
A. Well, sure, they're soluble.
Q. So the coating doesn't protect them totally from the
moisture of the rain, does it?
A. No, of course not.
Q. So if there was a large rainstorm, you might expect if
there were any unconsumed prills -- and we're just assuming now
in the hypothetical there were -- that they could be destroyed
by the rain; correct?
A. If they were out in the rain.
Q. Even if they were protected in part, as you said, because
the moisture would get to them just like the crystals.
Frederic Whitehurst - Cross
A. No.
Q. If there was a hundred percent humidity, that's what you
said, didn't you? You said a hundred percent humidity, didn't
you?
A. No, I think you misunderstood me.
Q. Okay. Go ahead. Why don't you explain.
A. My experience with prills and crystalline ammonium nitrate
that's not prills comes out of the environment of my laboratory
which is a controlled humidity. If I have prills, I can set
them on my desk and they just stay. If I have ammonium
nitrate, my ammonium nitrate crystals, they're not protected,
coated with wax or clay or whatever. They very often just --
Q. Dr. Whitehurst, are you familiar with how ammonium
nitrate --
MR. TRITICO: Your Honor, I'm going to object to Miss
Wilkinson interrupting him in his --
THE COURT: Yes, go ahead.
MS. WILKINSON: I apologize, your Honor.
BY MS. WILKINSON:
Q. Go ahead, Dr. Whitehurst, finish.
A. The ammonium nitrate crystals, themselves, if I sat them
possibly even in this courtroom -- I don't know the humidity --
they might sit there and within five minutes, you'd see a drop
of water there because they absorb the moisture from, you know,
from the air in the courtroom.
Frederic Whitehurst - Cross
Q. So how do you think those crystals survived getting
transported back from the crime scene to Agent Burmeister's
laboratory?
A. You know, that's -- I'm missing some data. And I'm trying
to be very frank with you. I'm missing some data. I just
don't know. You know, those crystals, for me, if I saw those
crystals -- if they were in a rainstorm, I don't know how they
survived. But you see, I don't know. It's kind of a unique
situation.
Q. So you don't have enough information to make an opinion, do
you, Dr. Whitehurst?
A. About what?
Q. About these crystals. You don't have enough data and as a
scientist, you know how important that is to have all the data
before you come to an opinion, don't you?
A. My --
Q. You've said that before, haven't you?
A. Yes, my opinion is expressed. I don't know with the data
I've got how those crystals could have survived a rainstorm.
Q. Dr. Whitehurst, you don't have enough data to issue an
opinion on Q507, do you?
MR. TRITICO: Excuse me. I'll object. It's been
asked and answered twice.
THE COURT: Overruled.
BY MS. WILKINSON:
Frederic Whitehurst - Cross
Q. Yes or no?
A. But I haven't offered an opinion.
Q. Yes or no?
THE COURT: What opinion are you asking?
MS. WILKINSON: The opinion that the crystals would
have been dissolved or would not remain on Q507 if there had
been a rainstorm.
MR. TRITICO: I'll object. That's a misstatement of
his testimony.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Why don't you tell me what your opinion was that you said
on direct examination with Q507, Dr. Whitehurst.
A. I don't believe that the crystals on that wood subjected to
a deluge could survive. I don't based on my experience of the
data that I've got.
Q. And what I'm asking you is: Do you have sufficient data to
make that opinion, yes or no?
A. Yes. Because I made it.
Q. Do you know how Q507 was found at the crime scene?
A. Well, I understand it was laying on the ground.
Q. You believe it was face down on the ground; is that right?
A. That's what --
Q. And if you found out you were wrong, would that change your
opinion?
Frederic Whitehurst - Cross
A. I would have to reevaluate, yes.
Q. If you found out that Q507 was seated on an angle at the
crime scheme with the wood face down that had the crystals,
therefore not exposed to the ground, if you found that out,
could that change your opinion?
A. No, ma'am.
Q. So it doesn't make any difference how Q507 was found?
A. Well, sure it does. If Q507 was in the building, inside
the Murrah Building, very well protected, you know -- no, I
misspeak that. That thing out on the rainstorm, I just --
ma'am, I just don't know how the ammonium nitrate crystals can
survive the rainstorm.
Q. Well, you saw the crystals on Q507, you have no doubt about
that?
A. I have no doubt about that.
Q. And you have no doubt that Agent Burmeister correctly
identified those crystals as ammonium nitrate.
A. I have no doubt.
Q. You're familiar with the multitude of tests that he
conducted before he made his conclusion; correct?
A. Yes, I'm also familiar with Mr. Burmeister's
professionalism, and I know those were ammonium nitrate
crystals if he called them that.
Q. And haven't you said on a prior occasion that if Agent
Burmeister checked into the chain of custody on the evidence,
Frederic Whitehurst - Cross
you would have no question about it?
A. That's correct.
Q. Now, you've told us that you don't know how the crystals
could have survived the rainstorm; correct?
A. Yes, ma'am.
Q. Do you have any hypothesis on how those crystals got there,
if they didn't come from the crime scene?
A. I know possible alternative explanations, but I'm not sure
that it wouldn't be just plain conjecture.
Q. So you have no idea how they got there?
A. No, ma'am.
Q. And you don't believe, though, that they were -- it was
contaminated there or placed there by a human being; is that
correct?
A. I have no reason to believe that, that's correct.
Q. In fact, you've said that on a prior occasion, that based
on the size of the crystals, that it isn't reasonable to you
that that item was contaminated; isn't that correct?
A. That's correct.
Q. I'd like to go back to contamination at the laboratory with
you and talk about the procedures. You don't have any personal
knowledge about what procedures were followed in this case with
regard to Mr. McVeigh's clothing, do you?
A. I wasn't present when the analyses were conducted.
Q. So you don't know what Mr. Mills did with the clothing;
Frederic Whitehurst - Cross
isn't that correct?
A. That's correct.
Q. And you don't know what Mr. Martz did; correct?
A. That's correct.
Q. And you don't know what Mr. Burmeister did, do you?
A. That's correct.
Q. You mentioned a hypothesis that perhaps Mr. Mills placed
the box on the floor and somehow PETN or some other residue
could have been there and contaminated the box; correct?
A. No, the counsel raised that with me.
Q. And you said that there was a possibility of that; right?
A. Yes; that's correct.
Q. And there's always a possibility of something like that
happening; correct?
A. Yes, there is.
Q. If you found out that Agent Burmeister had tested the box
and found out that it was negative for any high-explosive
residue, would that make you believe that it was less likely
that contamination had occurred?
A. In that manner, yes.
Q. And if you found out that Mr. Mills had cleaned his table
top, placed down butcher paper, and worn gloves and only used
those gloves to deal with the items that were in that box, the
sealed box, would that make you believe that contamination was
less likely?
Frederic Whitehurst - Cross
A. Yes.
Q. And if you found out that Mr. Hupp, who took custody of the
clothes, had gone through the clothes with a pair of gloves,
had never been to the crime scene, had sealed the box and
delivered it back to the FBI Laboratory in that same condition,
would that make you believe that contamination was less likely?
A. I don't know Mr. Hopp. Is he a scientist?
Q. He's a fingerprint analyst. He was not at the crime scene.
If you found that out, would that make you believe that
contamination was less likely?
A. I have not defined Mr. -- is his name Hopp?
Q. Hupp, H-U-P-P.
A. Hupp as a -- you know, who he is, I don't know about his
expertise or where he was or all of that stuff. So I -- you
know, I don't know who he is. I can't comment on that.
Q. Well, he's not from the Explosives Unit.
A. Yes.
Q. And he hasn't dealt with explosives. If you knew that,
would you believe that it was less likely that the evidence had
been contaminated?
A. You say he's a fingerprint examiner?
Q. Yes.
A. I couldn't say that, ma'am.
Q. Even though he wore gloves, that wouldn't make it less
likely there was contamination?
Frederic Whitehurst - Cross
A. If he wore gloves, that would make it less likely. But I
don't know what he comes in contact with on a daily basis.
Q. Okay. And what if you were to learn that in the Noble
County Jail where Mr. McVeigh's clothes were seized, there was
no evidence of any high explosives had been in the area where
Mr. McVeigh's clothes were stored, would that make it less
likely there had been contamination?
A. Yes.
Q. And would it make it less likely that there's no evidence
that anyone had handled those clothes other than the law
enforcement officials who were turning those clothes over to
the FBI? In other words, there weren't civilians who had
touched those clothes or anyone else, would that make it less
likely that there was contamination?
A. Yes, the fewer people that touch it, the less likely there
is contamination.
Q. And if those people hadn't dealt with high explosives
before, would it make it less likely that there had been
contamination prior to the seizure of the clothes by FBI?
A. If who hadn't dealt with high explosives, ma'am? The law
enforcement officers?
Q. Yes, the local law enforcement at Noble County Jail.
A. Yes; that's correct.
Q. If Mr. Hupp took custody of those clothes and sealed the
box and you found that the clothes had been in paper bags, had
Frederic Whitehurst - Cross
been in a sealed box and they had been transported back to the
FBI laboratory to Mr. Mills' custody, would it make it less
likely that there had been contamination?
A. Sure.
Q. And you know of no evidence or no research, do you, that
PETN somehow travels through cardboard boxes, through paper
bags, and into the pants pockets of the defendant; correct?
A. Yes, and I would doubt that it would.
Q. And you doubt that because you know what PETN -- the
chemical characteristics of PETN; correct?
A. Yes, I know the physical characteristics.
Q. And you've called it a hard and sticky substance; correct?
A. Yes, it has a low vapor pressure, ma'am.
Q. And in contrast to nitroglycerine or EGDN which would
potentially vaporize and transfer in the air as you've stated;
correct?
A. Yes, ma'am.
Q. So you don't believe, do you, Dr. Whitehurst, that PETN
could be transferred from the cardboard box through the paper
bag and into Mr. McVeigh's pants pockets; correct?
A. I couldn't see that happening.
Q. And if you found out that Mr. Mills had handled the clothes
and bagged them individually in plastic bags and hadn't touched
the pants pockets, the inside pants pockets of Mr. McVeigh's
clothes, would you believe that it would be less likely that
Frederic Whitehurst - Cross
there was contamination?
A. Yes.
Q. And if you found out that Mr. Burmeister had identified
high-explosive residue on different portions of Mr. McVeigh's
clothes, therefore not just random contamination, but high
explosives on two T-shirts and on pants, wouldn't you say that
it was less likely there had been contamination?
A. No.
Q. No. So you would have -- that then that would not be
random anymore; correct? If you found it on three of the five
items or six items that were tested?
A. I would have to ask a question at that point of how the
clothes were actually collected. Do you know? If . . . can I
explain?
Q. Sure, go ahead.
A. If when they were collected, a law enforcement officer,
say, collected them and there was PETN on one of them, okay.
There would be -- you know, if the law enforcement officer
didn't know what to do, as far as didn't understand a
contamination issue, he could contaminate all of the items.
Q. What if Mr. McVeigh took off his clothes, himself, and put
them into the bag?
A. Then we wouldn't have to worry about that. It would
still -- if Mr. McVeigh had, or the clothes anywhere had PETN
on them and you handled -- suppose I had it in my pocket, but
Frederic Whitehurst - Cross
then I handled the shirt or I handled whatever. There would be
a likelihood that you could cross-contaminate.
Q. Meaning Mr. McVeigh would have cross-contaminated, you're
saying, as he took off his clothes?
A. Or whoever handled them. One item could contaminate of
them is what I said.
Q. I understand from your direct testimony that you're not
really concerned about cross-contamination if they're all from
the same individual or the same crime scene -- correct --
because you know it came from that person; whether it came from
their shirt or their pants and moved is not really of great
concern to you.
A. If the issue is whether it came from that person, then that
would be correct.
Q. And you're not aware of any evidence showing that PETN
transfers from one piece of clothing to another; right? It's
just sitting there in the bag -- correct -- for the same
reasons that you said that it's a sticky, hard substance?
A. Well, if they rub against each other in transport, if
they're all in the same bag. If you put them in separate bags,
I wouldn't expect them to cross-contaminate.
Q. Now, if you also found out that the individuals testing the
items had cleaned their area, had worn clean lab coats, had
used gloves and had done what you all called blanking the table
top and putting blanks in between the test, would that make it
Frederic Whitehurst - Cross
less likely there was any contamination of the evidence in the
laboratory?
A. Yes, it would.
Q. And aren't those the procedures that should be followed in
testing items such as these?
A. Yes.
Q. And are these procedures that you always followed when you
conducted tests, Dr. Whitehurst?
A. No, ma'am.
Q. In fact, these procedures have evolved since you started in
the laboratory, haven't they?
A. Yes, they have.
Q. And in large part, they've evolved because of
Mr. Burmeister, haven't they?
A. Absolutely.
Q. In fact, you told us about an incident during direct
examination about this fancy machine that cleans containers.
What's that called?
A. It's a Turbo Vap.
Q. Turbo Vap.
A. Yes.
Q. You weren't the one that discovered contamination in that,
were you?
A. No, I wasn't.
Q. Agent Burmeister discovered it, didn't he?
Frederic Whitehurst - Cross
A. Yes, he did.
Q. And he told you not to use the machine. You had been using
it, right, because you didn't know?
A. Sure, we were using it on raw explosives.
Q. And once he brought it to your attention, you no longer
used the machine; correct?
A. That we didn't use it on residues any longer.
Q. So as you've been in the laboratory and you've been testing
items and your knowledge has been evolving, you've been
changing your procedures; correct?
A. Yes, ma'am.
Q. And that's good science, isn't it?
A. Yes, ma'am.
Q. And your protocols have changed, haven't they?
A. Yes, they have.
Q. And those documents that Mr. Tritico showed you did have
some protocols for the explosive residue analysis, didn't they?
Ones you had written, yourself, and I think titled "Explosive
Residue Protocols." Do you recall that?
A. Yes, I did. But they're not really protocols. They're an
initial attempt at it.
Q. Well, why don't you turn to J400, the defense exhibit.
A. Yes.
Q. And why don't we start with page 921.
MS. WILKINSON: Could I have the ELMO, your Honor?
Frederic Whitehurst - Cross
THE COURT: All right.
BY MS. WILKINSON:
Q. This is page 921, isn't it, Dr. Whitehurst? You can look
down at your screen.
A. Yes. Yes. Oh, excuse me. Yes, ma'am.
Q. And isn't that entitled "Protocol for Explosives Analysis"?
A. Yes.
Q. And you wrote that, didn't you?
A. Yes, I did.
Q. And you used the word "protocol," correct, that was your
choice?
A. Yes, I did.
Q. And the next page, 922, says visual and optical
microscopic -- you can tell me.
A. Yes, ma'am, microscopic.
Q. Microscopic analysis.
A. Yes, ma'am.
Q. And doesn't that tell you how to do that analysis?
A. Yes.
Q. That's a protocol, isn't it?
A. It's not . . . I work for the FBI, and the FBI doesn't call
this a protocol, ma'am.
Q. Let's look at the top of the page, Dr. Whitehurst.
A. Yes.
Q. "Residue Analysis Protocol"?
Frederic Whitehurst - Cross
A. Yes, ma'am. I'm not at liberty to call this thing a
protocol if my employer says that doesn't measure up. Do you
know? At the time, you know, as far as I was concerned, it was
a protocol. It's not -- it's not according to what the
Bureau's -- the FBI's telling us now, it's not a valid -- it's
not an appropriate protocol.
Q. So you're telling us that the FBI has higher standards than
what you had when you wrote these protocols, correct?
A. Oh, no. The FBI actually had lower standards than I had,
but we decided what is it that is really a protocol. And this
was the beginning. And they have added other things to it.
Q. And it's evolved over time; correct?
A. Yes, it has, yes, ma'am.
Q. And that's appropriate in the scientific community, isn't
it?
A. Sure, sure, it is.
Q. And in fact, in 1993, you went to -- you had a conference
on explosive residues, didn't you, analysis?
A. Yes.
Q. And you discussed your protocol at the time with people
from other countries?
A. Yes.
Q. And your protocol was very similar to some of the other
countries who do this type of analysis, wasn't it?
A. Yes, it was.
Frederic Whitehurst - Cross
Q. So, it fell within the generally accepted standards, didn't
it, at the time?
A. I don't know that.
Q. Well, you discussed it with other people who are experts in
this field, didn't you, Dr. Whitehurst?
A. Yes, we did.
Q. And you kept using it after that conference, didn't you?
You kept conducting tests, didn't you?
A. Yes, what we --
Q. You issued opinions based on that protocol, didn't you?
MR. TRITICO: Your Honor, I'm going to object to
Ms. Wilkinson interrupting when he's still trying to answer the
question.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Dr. Whitehurst, did you use this protocol after the
conference in 1993?
A. Yes.
Q. And did you issue results and opinions based on your
testing using that protocol?
A. Sure, uh-huh.
Q. And you wouldn't report out results that you didn't believe
in, would you?
A. No, I wouldn't.
Q. I want to go back to the recovery of prills. There has
Frederic Whitehurst - Cross
been a question in this case about an article by a man named
Dr. Robin Hiley. You know Dr. Hiley?
A. Yes.
Q. He's a well-known researcher in this field, isn't he?
A. Yes, I've met him.
Q. And it was suggested that there was some article published
by him on the recovery of uninitiated ammonium nitrate prills.
Are you familiar with that article?
A. No.
Q. It doesn't exist, does it?
A. I'm not familiar with the article.
Q. Well, you know that in Great Britain, most of the
ammonium-nitrate-based bombs don't use ammonium nitrate prills,
do they?
A. I don't know about that.
Q. Oh, you don't. You're not familiar with ammonium
nitrate --
A. I know they use ammonium nitrate. Whether they're using
prills or not, I'm not --
Q. Do you know that ammonium nitrate is usually ground and
mixed with sugar by the IRA?
A. I've heard that.
Q. So there wouldn't really be any reason to look for
uninitiated prills over in Great Britain, would there?
MR. TRITICO: Excuse me. I'm going to object. That
Frederic Whitehurst - Cross
calls for speculation on the part of the witness, based on his
testimony.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Dr. Whitehurst, how familiar are you with
ammonium-nitrate-based explosives?
A. Well, I know there's quite a few of them out there.
Q. And are you familiar with crime scenes where ammonium
nitrate prills were a component of the explosive device?
A. From my training, from my teaching, from my discussions
with my colleagues.
Q. What about crime scenes?
A. Well, let me see; what crime scenes have I been to?
I've been -- I haven't been to that many, so -- no.
Q. So you don't have any evidence or studies that show that an
uninitiated ammonium nitrate prills are recovered at
ammonium-nitrate-based crime scenes, do you?
A. What I have is what I was taught. The discussions that I
had, for instance, with Mr. Hiley -- with Dr. Hiley, about
those things.
Q. About prills being recovered?
A. About ammonium nitrate being recovered.
Q. I'm asking you -- I'm sorry if I'm not being clear. I'm
asking you about ammonium nitrate prills, not crystals that
could have come from gels or emulsions or anything like that.
Frederic Whitehurst - Cross
A. Yes, uh-huh.
Q. I'm talking to you about prills.
A. I'm trying to remember the situations. But, you know, I
haven't been to those crime scenes where ammonium nitrate
prills were used. I've heard about them in my, you know, my
training.
Q. Well, you told us on direct examination that --
A. Yes.
Q. -- when a device doesn't function properly, you sometimes
find prills; correct?
A. When it didn't function properly.
Q. Right. When it didn't detonate or only a small portion
detonated.
A. That's what I was taught, yes.
Q. Now, you've seen the crime-scene photos in the CNN coverage
of Oklahoma City, haven't you?
A. Yes, uh-huh.
Q. You have no reason to believe that that device did not
function properly, do you?
A. I don't think I can say that.
Q. Is that beyond your area of expertise?
A. Hmm. That's a difficult one. I don't think that I can say
it didn't function or did function correctly. It certainly
went off, but --
Q. Have you seen the truck parts?
Frederic Whitehurst - Cross
A. Excuse me?
Q. Excuse me. Go ahead, finish.
A. But to say that it all went, that it was a very efficient
explosion, I can't say that.
Q. And you can't say that because you weren't at the crime
scene, were you? So you don't know what was recovered.
A. I don't think anybody can say that that thing functioned
the way it was designed or not designed to function. I just
don't think so.
Q. Are you saying that if there's no recovery of any large
portions of the device, there's no recovery of portions of the
components of the bomb, that no one can say the device
functioned efficiently or properly? Is that what you're
saying?
A. It may not have functioned a hundred percent. It may have
functioned at 85 percent. At that crime scene, there was a lot
of environmental impact on whatever was left. We don't look at
every, every piece of everything from everywhere. We just
can't. It's not physically possible. You know, we might have
gone around a corner and found a chunk of ammonium nitrate
someplace or HMTD or TNT or whatever; do you know? The
possibility of finding everything that came out of that bomb in
the way of energetic material is kind of small.
Q. Dr. Whitehurst, do you know there were 250 agents at the
crime scene searching for evidence?
Frederic Whitehurst - Cross
A. Yes.
Q. And have you heard they searched every street, every
rooftop, every alley?
A. Okay.
Q. Wouldn't you say that it would be likely they would find
major portions -- I'm not talking about teeny, tiny portions
that you might like to see to determine what the fusing
mechanism is or the initiation system. But major components,
if they were there, don't you think they would have found them?
A. Ma'am, if they didn't know what they were looking for --
MR. TRITICO: Excuse me, I'm going to object. That
question calls for speculation on the part of the witness.
THE COURT: Overruled.
THE WITNESS: If they didn't know what they were
looking for, they could look right at something and not tell at
the time that they were looking at a pile of material. I know
of crime scene, for instance, where there's powder all over the
place and were it not for one guy there collecting it, we'd
have never known what was there.
BY MS. WILKINSON:
Q. You're aware that Agent Burmeister was on the scene
April 20, 1995, aren't you?
A. Yes, I am.
Q. And he has the expertise to make those types of
determinations, doesn't he?
Frederic Whitehurst - Cross
A. Yes, he does.
Q. And he has the ability to advise others on what to look
for, doesn't he?
A. Yes.
Q. And you would rely on him, would you not, to determine
whether that type of uninitiated matter or components of the
explosive device were recovered?
A. If he looked where everybody else looked. You can't teach
somebody in 5 or 10 or 15 minutes what you learn in years of
experience.
Q. You know that bomb technicians, while they have not the
expertise you do in chemistry, but they have some understanding
and knowledge of explosive devices, don't they?
A. Sure, they do, yes.
Q. And they understand what to look for when they go out to
crime scenes, don't they?
A. Sometimes.
Q. You're not aware of anything that was collected in this
case, are you, Agent Whitehurst, that would suggest that this
device didn't function efficiently -- are you?
A. Yes, you're right about that.
Q. So when Miss Jones testified here earlier that the device
functioned properly, based on her review of the crime scene,
the damage, the residue analysis, you can't disagree with that,
can you? Based on the information you have today.
Frederic Whitehurst - Cross
A. I don't know that it functioned 80 percent, 75 percent. I
don't know that.
Q. So you can't disagree with her; correct?
A. I don't know -- I've been to the crime scenes. I know what
happens at the crime scenes. I have experience with it, and I
know the level of expertise of people that are assisting. And
they're doing a good job, they're trying very hard, but they're
blind to some things and they don't recognize things when they
see them. And it could very well be there were pieces of that
device -- not the device, but the energetic material itself --
that were just missed, that were just missed or that washed
away in the deluge, the rain, okay?
Q. And there's also a possibility that no residues were left
at the crime scene; isn't that right?
A. Yes, ma'am.
Q. And in fact, if PETN were used as a component of the bomb,
let's say in detonation cord, you believe it's very unlikely
that those residues would be recovered; correct?
A. Yes, ma'am.
Q. And that's because the PETN would be right at the seat of
the explosion; correct?
A. Yes, ma'am.
Q. And it would be consumed during the detonation; right?
A. I think it would be virtually impossible to find it, yes.
Q. And what if Primadet had been used as part of the explosive
Frederic Whitehurst - Cross
train --
MR. TRITICO: Excuse me, your Honor, I'm going to
object as beyond the scope of the direct.
THE COURT: Overruled.
BY MS. WILKINSON:
Q. Would you -- let's assume the Primadet was used as part of
the explosive train, again right there in the middle of the
bomb; would you believe it would unlikely to find any remains
of that, of the Primadet?
A. Yes, ma'am.
Q. And unlikely to find the residues HMX or the PETN in the
blasting cap at the end of the Primadet?
A. Absolutely.
Q. And if dynamite were used as a booster in the device,
therefore, EGDN being part of dynamite, don't you believe it
would be very unlikely you would find EGDN residues at the
crime scene?
A. Especially at that crime scene, yes.
Q. And why is that?
A. It was raining.
Q. And what about the size of the device?
A. That would be a good reason, also. Yes, uh-huh.
Q. So you wouldn't be surprised to find out that no
high-explosive residues were recovered at the crime scene;
correct?
Frederic Whitehurst - Cross
A. Oh, no, ma'am.
Q. That's common in your experience and expertise in trying to
extract any kind of residues from these crime scenes; correct?
A. No, my data is limited from, you know . . . I don't
think -- I wouldn't be surprised if we didn't see it, but I
think it's a very chaotic situation, so I can't predict.
Q. You don't have any concern about Brett Mills' ability to
handle evidence in this case, do you?
A. I think he's a very professional examiner.
Q. And you've had discussions with him, haven't you, on how to
avoid contamination?
A. I think Brett and I've talked about it. I know -- yes, I
think we've talked about it, sure, uh-huh.
Q. And he was aware of those precautions that could be taken
back in April of 1995, wasn't he, based on your conversations
and his conversations with Agent Burmeister and others in --
A. Well, I've been told that he put this box on the floor of
the Explosive Unit, so it indicates to me that he had some lack
of an understanding of, you know, what the implications of that
were. But I think overall -- I think overall Brett Mills is
very professional; and I think, you know, if he's aware that
there could be an issue with a particular practice, that he'll
certainly not -- you know, he'll avoid that practice.
Q. You don't know whether Mr. Mills cleaned the floor before
he put down that box, do you?
Frederic Whitehurst - Cross
A. No, I don't.
Q. At the crime scene, it would not be beneficial to test for
fuel oil, would it?
A. Fuel oil is sort of like everywhere. I mean, you know,
it's -- there are a lot of automobiles. If you had a diesel
fuel truck or something like that, it would be --
Q. If you were looking to determine or test the hypothesis
that this had been an ammonium nitrate fuel oil bomb, as a
scientist, you wouldn't rely on any findings of fuel oil
because they could come from so many other factors; correct?
A. If I were to find prills, for instance, with ammonium
nitrate -- I mean with fuel oil in them, I think I could, you
know, say that that's consistent.
Q. But other than finding them in the prills themselves.
Finding them in the area, finding fuel oil samples would not
tell you anything, would it?
A. Yes, it would be suspect.
Q. And you wouldn't suggest that those type of tests be done,
would you, knowing that rescue vehicles are in there and other
large trucks are in the area?
A. I could see that that would probably be useless, especially
when it was raining.
Q. Dr. Whitehurst, when you're determining whether there's
been contamination of evidence, one of the most important
things is to go back over the chain of custody; correct?
Frederic Whitehurst - Cross
A. Yes.
Q. And you would consider that part of your responsibility as
a chemist before you issued any findings; correct?
A. You would consider that your mind, yes.
Q. And you might do some collecting before and some checking
afterwards, but you would want to ensure yourself that there
had been a proper chain of custody; correct?
A. You would want to understand where this stuff came from,
who -- if you had a question whether there was contamination or
not, you would ask that.
Q. And it's your experience working with Mr. Burmeister that
he engages in that kind of research; isn't that right?
A. Yes.
Q. He's concerned with contamination, isn't he?
A. More so than I was when I was in his position.
Q. Now, knowing what you do know now about contamination,
would you agree that it's very unlikely that an item has been
contaminated if you find three different high-explosive
residues on one item?
A. No, I don't think so, ma'am. I work in a laboratory where
people go to the bomb range and explosives, demolition
technicians come and go; and those people could very possibly
be contaminated with all of the kinds of explosives they come
in contact. So I have a -- you know, I would differ with you
on that.
Frederic Whitehurst - Cross
Q. And it wouldn't matter what those residues are?
A. I couldn't say that. You know, with explosives that are
organic explosives that stick to your hand, PETN, HMX, RDX,
those sorts of things, it wouldn't surprise me to test
people -- maybe not today, because they have a heightened
awareness of the problem -- but to have tested people two or
three years ago in the Explosive Unit and to have found them to
have been contaminated with any number of explosives.
Q. Well, if you learned that Mr. Mills had handled some
earplugs seized from Mr. McVeigh and he had followed the
procedures that you and he have discussed; that is, cleaning
his table, wearing gloves, and he placed those earplugs in a
plastic bag and sent them to Agent Burmeister for testing, who
followed the same procedures you're familiar with, wouldn't you
agree that -- and he found three residues -- three different
high-explosive residues on those earplugs -- wouldn't you agree
that it was less likely there was contamination?
A. From Brett Mills, yes.
Q. And from Mr. Burmeister?
A. Yes, I wouldn't concern myself about contamination by
Mr. Burmeister.
Q. I want to talk to you about one final issue about
contamination, and that's the carpet that you've been
discussing with Mr. Tritico. You drew this drawing for us,
J750, and you told us that you were very concerned about this
Frederic Whitehurst - Cross
carpet; correct?
A. Yes; that's correct.
Q. And you're worried that it could have some kind of residues
held in the carpet; right?
A. Yes.
Q. High-explosive residues?
A. It could, yes.
Q. And vacuuming it wouldn't be sufficient because those
residues could be so persistent that even a vacuuming wouldn't
clean them; is that correct?
A. Yes.
Q. Now, that carpet was there back in May of 1995, wasn't it?
A. Yes, ma'am.
Q. And when you did your contamination study where you were
looking in the areas that you thought would be most likely to
have contamination, you didn't have the carpet tested, did you?
A. I guess I didn't -- if I read this and I didn't, I didn't.
Yes.
Q. Now, for this carpet to actually contaminate something that
Mr. Burmeister tested, it would take quite a bit of work,
wouldn't it?
A. I can't follow you.
Q. Well, let's start here.
A. Yes.
Q. Agent Burmeister's office is right here; correct?
Frederic Whitehurst - Cross
A. Yes; that's correct.
Q. And it's in that office behind a locked door where he
extracts samples from evidence; correct?
A. No, ma'am. His door's not locked. It's open.
Q. Well, the door can be locked; isn't that right?
A. Yes, ma'am, but -- sure.
Q. And that's where he takes out samples from the evidence
that he's testing; correct?
A. Yes.
Q. And he takes that sample, if he extracts it with some kind
of solution, then dries it down, and puts it in a small test
tube; correct?
A. Uh-huh.
Q. That test tube is sealed; right?
A. I think so.
Q. That's the procedure you and Mr. Burmeister followed during
your testing, isn't it?
A. Well, he extracts and puts it in a test tube, yes, uh-huh.
Q. And he walks out here and goes up to the equipment;
correct?
A. Yes.
Q. And what you're telling the jury is somehow these residues
that are stuck in the carpet -- and because they're fibrous --
correct -- because the carpet is fibrous, it's holding those
residues in, just like earplugs; correct?
Frederic Whitehurst - Cross
A. Yes, uh-huh.
Q. So they're not jumping out of that carpet; correct?
A. Yes, ma'am.
Q. So somehow the residues you're worried about in this carpet
would have had to go through these paint files right here --
and you and I both know that that's a whole group of paint
files that are hanging on both sides; correct?
A. Yes.
Q. And those residues would have to jump over that paint file?
A. Yes.
Q. And jumped in Agent Burmeister's sealed test tube; correct?
A. Well, if you wanted them in the test tube, yes, uh-huh.
Q. That's not very likely, is it?
A. The way it would happen --
Q. I'm just asking you to answer my question, Dr. Whitehurst.
A. I can't say that. I can't say that.
Q. You can't say whether it's likely jumped over the paint
file --
A. -- jumped right in the test tube?
Q. Okay.
A. Excuse me? I'm confused, ma'am.
Q. I think you've answered my question. Thank you.
A. Oh, okay. Excuse me.
Q. You've told us that you're aware that PETN, which is this
sticky, hard substance, is in smokeless powder; is that right?
Frederic Whitehurst - Cross
A. I'm aware of it from this Thornton paper here.
Q. And is that the only source you have for PETN being in
there?
A. Yes; that's correct.
Q. You didn't do any other research, did you?
A. No, I didn't.
Q. Why don't you tell us what you consider kind of the seminal
work on explosives, the textbook. Or series of textbooks.
A. There's a Picatinny Arsenal Encyclopedia of Explosives and
Explosives and Related Compounds.
Q. Are you familiar with Mr. Urbanski's series of textbooks?
A. Yes, I am.
Q. You've relied on those in the past, haven't you?
A. Yes, I have.
Q. And are you familiar with Dr. Yinon from Israel?
A. Yes.
Q. And his Forensic Applications for Mass Spectrometry?
A. Yes.
Q. And would you consider both of those reliable sources for
determining whether PETN is in smokeless powder?
A. I don't know that, because I don't know if they treat that
particular issue. Do you have a reference in there that treats
that?
Q. I do. From Volume 3 entitled "Smokeless Powder with" --
and you're going to have to help me with this pronunciation --
Frederic Whitehurst - Cross
penthrite?
A. Yes.
Q. Which I understand is PETN.
A. Yes.
MR. TRITICO: I'll object to this witness introducing
this evidence -- commenting on this evidence. It's not been
introduced.
THE COURT: I think the correct procedure is to show
him what you're referring to as a learned treatise and let him
comment.
MS. WILKINSON: I'll be happy to do that. I'll hand
him both Mr. Yinon and Mr. Urbanski, your Honor.
MR. WYATT: Do you have a copy?
MS. WILKINSON: No, I don't.
THE WITNESS: Ma'am, should I say something?
BY MS. WILKINSON:
Q. Could you just review and see if you're familiar with them.
A. I've reviewed them.
Q. Pardon? I'm sorry?
A. I've reviewed them.
Q. And do they indicate that there's any PETN in smokeless
powders manufactured in the United States today?
A. The Urbanski article indicates -- does not indicate that.
The article in Dr. Yinon's book --
MR. TRITICO: Excuse me, your Honor. I'm going to
Frederic Whitehurst - Cross
object to this procedure. He's not agreed these are learned in
the field.
THE COURT: Yes. You have to ask him if he agrees
with those sources.
BY MS. WILKINSON:
Q. Dr. Whitehurst, do you recognize both of these gentlemen as
experts in the field?
A. Yes, uh-huh.
Q. And would you accept their research and writings?
A. Yes.
Q. Now, tell me what you were going to say about Dr. Yinon and
his findings.
A. This is not Dr. Yinon's finding. This is Dr. Fetterolf's
finding. Chapter 6, "Detention and Identification of
Explosives by Mass Spectrometry." And Dr. Fetterolf has
rendered some -- in Mr. Burmeister's and my opinion in the
past -- some inappropriate opinions about the materials that
you find in explosives. So I would question Mr. Fetterolf.
Tadeusz Urbanski is from a foreign country. If I were to place
these articles together, I know Mr. Hardy from long many years
ago.
Q. So you would rely on Mr. Hardy?
A. But these articles would cause me to question Mr. Hardy.
It would.
Q. And would you be surprised to learn that the chart that
Frederic Whitehurst - Cross
Mr. Tritico pointed out to you that says "Organic Compounds for
Smokeless Powder" came from an FBI chart that used to be
entitled, "Smokeless Powder Constituents and Explosives"?
A. I would -- you know, I didn't know that.
Q. And wouldn't that account for PETN being listed, because of
course PETN is found in explosives; correct?
A. Well, that could be a reason; yes, that could be an
explanation.
Q. Dr. Whitehurst, based on your knowledge of this case and
your experience with working with Mr. Burmeister, do you have
any knowledge of any actual contamination of any of the
evidence in this case?
A. I have no knowledge of any actual contamination of any
evidence in this case.
MS. WILKINSON: Thank you, very much.
THE COURT: Mr. Tritico.
MR. TRITICO: Yes, your Honor.
REDIRECT EXAMINATION
BY MR. TRITICO:
Q. Miss Wilkinson, before we broke for lunch, was asking you a
series of questions about this once-in-a-lifetime possibility
of contamination; you recall that?
A. Yes.
Q. Is there a machine in the FBI lab that was in use in April
or May of 1995 that has a capture end or a detection end that
Frederic Whitehurst - Redirect
looks like a flashlight?
A. Yes.
Q. What is that?
A. It's a thermetics instrument. It's called -- it's a
GC/Chemiluminescence detection instrument called an EGIS.
Q. And how do you use the flashlight end -- it's not a
flashlight, is it?
MS. WILKINSON: Objection, your Honor. I'm not sure
how this goes to the cross-examination. It's beyond the scope.
THE COURT: Well, can you tie it up some way with
anything that's in evidence?
MR. TRITICO: Yes.
BY MR. TRITICO:
Q. Have you found a problem with contamination, random
contamination, with respect to that EGIS machine?
A. Yes.
Q. How?
A. One of the things that happens --
MS. WILKINSON: Your Honor, I'm going to object again.
The timing and how it's relevant to this case. If it was used
in these items.
THE COURT: At this point, the objection is sustained.
BY MR. TRITICO:
Q. When did you find this?
A. The problem?
Frederic Whitehurst - Redirect
Q. Yes.
A. About 1993.
Q. And in your opinion, was that problem still persistent in
April and May of 1995?
A. I couldn't say that it wasn't, sir.
Q. Was the same instrument still in use?
A. Yes. The same design.
Q. How did it work?
MS. WILKINSON: Your Honor, again, I'm going to --
THE COURT: Well, was it used on any of the evidence
that's been introduced in this case?
BY MR. TRITICO:
Q. Do you know if it was used on any of the evidence in this
case?
A. If . . . I don't absolutely know. It's part of what we do
in the protocol, but I didn't stand in front of the instrument
while somebody absolutely -- actually used it.
Q. I'm sorry, I didn't mean to interrupt you. If there are
some EGIS results or GC/Chem results in this case, would it
have come from that machine?
A. Yes. I would imagine so, yes.
Q. Now, how did the flashlight end work, if you will? It
wasn't a flashlight, was it?
A. No, it wasn't --
MS. WILKINSON: Objection, your Honor.
Frederic Whitehurst - Redirect
THE COURT: Sustained. It's speculative.
BY MR. TRITICO:
Q. Now, Miss Wilkinson was asking you a series of questions
about the collection of the clothes. Do you recall that?
A. Yes.
Q. If you found that the clothes had been placed in a paper
bag all together in the Noble County Jail and left unattended
for a period of time, would that be something important to you
in making a determination as to whether they may or may not
have been contaminated?
A. Yes.
Q. Would it matter if one or more of the items were
contaminated if -- if only one of the items was contaminated,
if they're all thrown in the same bag together, does that
enhance the possibility that the others will be contaminated?
A. Yes.
Q. With respect to the residents of the Noble County Jail and
the employees of the Noble County Jail, would you,
Dr. Whitehurst, have taken any reasonable effort to determine
if those people had been in recent proximity of explosives?
Would you have wanted to know that, is my question.
A. If that were an issue, yes, I would have.
Q. And if you found that the jail took no procedures and no
effort to segregate those clothing from contamination, would
that have been an issue?
Frederic Whitehurst - Redirect
A. Yes.
Q. Miss Wilkinson was asking you about J400. Now, the
document that -- the part of J400 -- the protocol is what I'm
talking about. The part of J400 that she showed you, that's
entitled "Protocol," that's what I was asking you about this
morning that you said was your first attempt at a protocol?
A. Yes.
Q. Is that correct?
A. Yes.
Q. Was that ever validated?
A. Sort of partially.
Q. Did you ever finish it, is what I'm asking you.
A. No, we -- we were working on validation studies, and they
came to an end.
Q. Why? Do you know?
A. We were --
MS. WILKINSON: Objection, your Honor.
THE COURT: Overruled.
THE WITNESS: We were too busy with other things.
BY MR. TRITICO:
Q. Now, with respect to searching this scene of any
explosion -- and this explosion -- for unconsumed prills of
ammonium nitrate, I understand that you are not aware of any
paper written by Dr. Hiley, but have you had discussions with
Dr. Hiley about that very subject?
Frederic Whitehurst - Redirect
A. Yes.
Q. When was that?
A. The 1993 conference.
Q. Have you at any time relayed the information that you
received from Dr. Hiley to Steven Burmeister?
A. Yes.
Q. And is that the memo that's in evidence as McVeigh Exhibit
J444?
A. Yes.
Q. If you had been sent to the scene in Oklahoma City in April
of 1995, would you have searched for unconsumed prills of
ammonium nitrate, if you thought that might have been the
explosive device?
A. It's according to how much time I had, sir. It really is.
If I were, if I only had a limited amount of time, you know, I
would be looking around for prills, I would be looking around
for the kinds of materials that hold residues in them. It
would be reasonable to go -- go looking for prills, if you
will, among other things.
Q. In your view, is time a factor in an investigation like
this?
A. It is practically; it is. We just can't do everything that
needs to be done.
Q. In April and May of 1995, was the FBI working on a case
bigger than this one?
Frederic Whitehurst - Redirect
A. Well, I can't say that.
Q. Did you have a discussion with Steven Burmeister, Special
Agent Burmeister, about looking for unconsumed prills at the
scene in Oklahoma City?
A. Yes, we did.
Q. And where did you advise him to look for those unconsumed
prills?
A. I felt that the prills would be in areas that were
protected from the inclement weather.
Q. Such as?
A. Inside the building itself.
Q. Now, with respect to a prill lasting in the humidity as
opposed to the crystal, why is it that you -- you said you
could -- you might be able to find the prills as opposed to the
crystal in the humidity? Does that make any sense?
A. Yes.
Q. Okay.
A. The prill is coated. It's got a coating on the outside.
And, you know, it makes it a free-flowing material. And the
water doesn't come through as well.
Q. Now, is that why you were suggesting to look inside the
building?
A. Yes, because if those prills were out in the weather and
getting rained on, these probably break down, anyhow.
Q. Now, if I understand your testimony, if you take a prill
Frederic Whitehurst - Redirect
and put it on your desk in your office and you take a crystal
of ammonium nitrate and put it on your desk in your office, in
a controlled environment such as this room here, that crystal
is still going to absorb water and turn into water, right,
possibly?
A. It ends up as a solution on the page. I've had that
experience, yes. On the desk. Uh-huh.
Q. But the prill wouldn't necessarily do that because of the
coating; is that what you're trying to say?
A. Yes, that's my understanding of it, uh-huh.
Q. Now, the failure to find PETN at the scene in Oklahoma City
doesn't mean that there was ever any PETN there, does it?
A. If you don't find something, it doesn't mean that it wasn't
there.
Q. That would be the same for shock tube, wouldn't it?
A. Yes.
Q. Dynamite, certainly. EGDN?
A. Yes.
Q. In your 1995 study on contamination, were you allowed to
sample the safe in the Explosives Unit?
MS. WILKINSON: Objection, your Honor.
THE COURT: Sustained.
BY MR. TRITICO:
Q. If you found that the earplugs in this case were stored in
the safe in the Explosives Unit, would you want to know if that
Frederic Whitehurst - Redirect
safe was contaminated prior to the time that you put the
earplugs in it?
A. Yes.
Q. In 1995, when you conducted your contamination study, were
you allowed to sample the safe?
A. I don't --
MS. WILKINSON: Objection.
THE COURT: Allowed to? Isn't the question did he?
BY MR. TRITICO:
Q. Did you?
A. I'd have to look at the notes themselves, sir, to find out
if the safe was --
Q. Do you still have them there?
MR. TRITICO: May I approach?
THE COURT: Yes.
THE WITNESS: I don't see that it was checked.
BY MR. TRITICO:
Q. Now, did you complete that study after you started it?
A. Well, this -- this particular contamination study was
written up; and then I went to do another one, but I didn't
complete that.
Q. All right. With respect to the locking of Mr. Burmeister's
door -- Special Agent Burmeister's door: Have you seen his
door locked on few, or many occasions?
A. Well, he locks it every night, but it's open during the
Frederic Whitehurst - Redirect
daytime.
Q. And have you seen others in his office?
A. Yes, all the time.
Q. Have you had occasion to see individuals in his office that
have been at the bomb range, if you know?
A. I know there are Explosive Unit personnel in his office.
Q. And would that have been occurring in April and May of
1995?
A. Yes.
Q. Would Mr. Burmeister have conducted extracts in his office?
A. I don't know that, sir. Excuse me --
Q. How about acetone extract?
A. I don't understand why he would, because acetone's a
noxious stuff. I would do it under the fume hood, but he might
have.
Q. Miss Wilkinson asked you if the particles of explosive that
may be contained within the carpet are likely to jump over the
bookcase and into the test tube. Do you recall that?
A. Yes.
Q. Is that your concern with the carpet?
A. Yes.
Q. What are your other concerns with the carpet?
A. It's in a trace analysis laboratory. The concern is that
when you vacuum it -- materials on the carpet isn't just going
to move on its own. And when you vacuum it, you suck the
Frederic Whitehurst - Redirect
materials and all the dust and dirt particles into your vacuum
cleaner, and these are explosive materials or sticky materials;
and you can see dust come out of those vacuum bags when they go
through the lab, you know, when they're vacuuming, and that
dust could -- we could do a contamination study today and find
we were totally clean and the cleaning people come through
tonight and vacuum that thing, and tomorrow we'd be dirty
again; and we wouldn't know it unless we tested it tomorrow.
It would be a random contamination. We wouldn't know we were
contaminated unless we tested.
Q. And when the vacuum cleaner goes over there and throws the
dust around, you don't know necessarily where it lands, do you?
A. That's correct.
MR. TRITICO: I thank you, sir.
I pass the witness.
THE COURT: Any other questions?
MS. WILKINSON: No, your Honor.
THE COURT: Are you excusing this witness?
MR. TRITICO: Yes, your Honor, I believe so.
MS. WILKINSON: Yes.
THE COURT: You may step down. You're excused.
Next, please.
MR. TRITICO: Also, your Honor, can the attorneys be
excused from the courtroom as well?
THE COURT: Yes.
MR. TRITICO: Dr. John Lloyd, your Honor, please.
THE COURT: All right. If you'll come forward,
please, and be sworn.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(John Lloyd affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: John Brian Ford Lloyd, L-L-O-Y-D.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Mr. Tritico.
DIRECT EXAMINATION
BY MR. TRITICO:
Q. Dr. Lloyd, you're not from Texas, are you?
A. That is correct.
Q. Where are you from?
A. I'm from England.
Q. And what town? What city in England?
A. From the West Midlands near Birmingham.
Q. What is your profession?
A. I'm a forensic scientist.
Q. How long have you been a forensic scientist?
A. Since 1966.
Q. Can you describe for the ladies and gentlemen of the jury
John Lloyd - Direct
your educational background.
A. My academic qualifications are doctor of philosophy, doctor
of science. My professional qualifications are charter chemist
and fellow of the Royal Society of Chemistry.
Q. What's a charter chemist?
A. It is a -- I think comparable to your licensed practitioner
of chemistry or engineering and so on in this country.
Q. And you said you were a fellow chemist?
A. I am.
Q. What is that?
A. The fellowship of the Royal Society of Chemistry is the
senior rank within the Royal Society of Chemistry, and one is
appointed to that post by election of a constituted committee.
Q. And what is the Royal Society of Chemistry?
A. It is the senior body representing professional and
academic chemists in England.
Q. How long have you been a charter chemist?
A. For about 20 years.
Q. And how long have you been a fellow of the Royal Society of
Chemistry?
A. For a similar length of time.
Q. What is the order -- are you an officer in the Order of the
British Empire?
A. Yes, I am.
Q. What is that?
John Lloyd - Direct
A. It is an honor conferred by the Queen, conferred by -- for
contribution to forensic science.
Q. And when was that honor conferred upon you?
A. In 1990. 1991.
Q. Now, I believe you testified that you've been working in
forensic science for approximately 30 years; is that right?
A. Yes.
Q. Does your work include working on particular individual
cases?
A. Yes, it does.
Q. And would that include explosions and bombings?
A. Yes, it does.
Q. Have you performed any research in the field of forensic
science?
A. Yes, I have pursued research in forensic science for a
number of years. I have published a number of scientific
papers concerning forensic science and including explosives
work.
Q. And how many papers have you published on explosives work?
A. Up around 20.
Q. And have you been called upon from time to time to testify
as an expert witness?
A. Yes, I have.
Q. And approximately how many times have you testified as an
expert witness?
John Lloyd - Direct
A. Overall, I suppose on the order of a hundred times
throughout my career.
Q. And of those hundred times, approximately or what percent
of those were relating to explosives-related cases?
A. Around 20 or 30, I suppose.
Q. What is the United Kingdom's Government Home Office of
Forensic Science Service?
A. It was the government forensic science service. It was
supported by the government, providing a service, mainly to the
police forces. It has now been converted to a self-financing
agency.
Q. It's been converted to what?
A. An agency.
Q. Of the government, sir?
A. Yes. It's controlled by the government, but it has to be
self-financing now.
Q. And were you employed there?
A. Yes, I was.
Q. For how long?
A. Until 1991.
Q. What was your position there?
A. For a large part of the time, I was a senior principal
scientific officer on a special merit personal promotion.
Q. What does that mean?
A. It's a special post of which are there only three holders
John Lloyd - Direct
at that particular time which is created for particular people
to work very much more on their own initiative than they might
otherwise be able to do and to free them from administrative
work.
Q. Now, you left there in 1991; is that correct?
A. That's correct.
Q. And what have you done since then?
A. I set up a consultancy. In forensic science.
Q. And in the casework that you've -- that you've done in your
career, for either prosecution or defense, either side, does
that involve the chemical and physical scientific evidence?
A. That is right.
Q. And would that include chemical and physical scientific
evidence as it relates to explosives?
A. Yes.
Q. Have you had occasion in England to work on some notable
cases?
A. Yes, I have. Cases which have received quite a lot of
publicity; that is right.
Q. And briefly can you tell us some of the notable cases that
you've been able to work on.
A. I worked on the Birmingham 6 appeal and was largely
responsible for the evidence that resulted in success --
MS. WILKINSON: Objection, your Honor.
THE COURT: What's the objection?
John Lloyd - Direct
MS. WILKINSON: He's going to talk about conclusions
of the case instead of just the cases that he worked on. I'm
not going to object to him talking about the cases, but the
conclusions.
BY MR. TRITICO:
Q. What was the case, the Birmingham 6, appeal?
A. I worked on that case.
Q. Was that case reversed?
MS. WILKINSON: Objection, your Honor.
THE COURT: Sustained.
BY MR. TRITICO:
Q. What other cases have you worked upon?
A. The Judith Ward appeal.
Q. And any others?
A. I was a representative of the Maguire family in the
investigations into their miscarriage of justice.
Q. And have you had occasion to testify in courts, aside from
today, outside of England?
A. I've testified in Germany and in the Republic of Ireland.
Q. And the United States?
A. I haven't testified in the United States.
Q. Oh, this is your first time?
A. It is.
Q. Okay. Have you authored any, any works that were included
in books, any chapters, I guess, for books is what I'm trying
John Lloyd - Direct
to say.
A. I authored a chapter in Advances in Criminatography on the
HBLC explosives, and I have authored two other chapters on
forensic on -- I beg your pardon -- on fluorescent spectrometry
which were not concerned with the explosives.
Q. And have you been invited to lecture both in England and
internationally on your work in forensics?
A. That is correct.
Q. And would that be on few or many occasions?
A. I beg your pardon?
Q. Few or many occasions?
A. A few occasions.
Q. As a matter of fact, were you invited to lecture to the FBI
in Quantico, Virginia?
A. I've lectured at a symposium held by the FBI at Quantico,
yes.
Q. I see. Now, you have either been present or read the
testimony regarding the forensics and the scientific matters in
this case; is that right?
A. Yes.
Q. And you missed some of the testimony because you had to go
back to England; is that right?
A. Yes.
Q. You have either seen or read the testimony regarding
protocols that has been introduced thus far in this case; is
John Lloyd - Direct
that fair?
A. Yes.
Q. Just tell us briefly why is it important for a forensic lab
to have a protocol.
A. A protocol is a document specifying a scientific procedure.
It would include the basis of the procedure, it will include
specifications for how the procedure is followed, and it will
include specifications for how the results obtained by that
procedure are to be interpreted and used.
Q. What do you mean by the last part, how they're going to be
interpreted and used?
A. Any scientist embarking upon an analysis or an
investigation of any sort should have clearly defined
objectives. He should be fully aware of how he will interpret
whatever results he is likely to get. He should because of his
protocol know what sort of windows of variation within which he
can allow his results to fall. A scientific measurement is not
something which is absolutely precise; it can vary. The
measurement, for example, might be 50, and on another occasion
it might be 51 or 49 and so on.
The scientist must have determined before he starts
the experiment precisely what latitude he is going to allow for
his results to take up.
Q. And that's the window of variation you were talking about?
A. Yes, it is.
John Lloyd - Direct
Q. Now, a window of variation, if you can explain it, is
that -- well, explain what you mean by a window of variation.
A. It allows for some free play in the results. As I say, a
scientific measurement is not something which is precise. It
can vary. It can vary within limits. And it is important that
those limits should be predetermined before any work is done
using the protocol.
Q. Briefly what items, what entries would you expect to see in
a proper protocol at a forensic lab, trace analysis lab?
A. I could except -- I could expect to see fully defined the
basis of the technique, the qualifications of the people who
are fitted to carry out the technique. I would expect to see
specifications for the reagents, for the instrumental settings.
I would expect to see specifications for the standards used. I
would expect to see a step-by-step detail of the procedure to
be followed, and as I've just been referring to, I would expect
to see how the results should be interpreted and used.
Q. Would this be for each machine or just a general protocol?
A. A protocol might include the use of several machines. It
might be split up into parts.
Q. Let me show you what's been introduced into evidence as
Government Exhibit 914.
Do you see that on your screen?
A. Yes.
Q. And you've seen this before?
John Lloyd - Direct
A. I have. I believe so.
Q. Is that a protocol?
A. No.
Q. Why?
A. It's a flowchart.
Q. This doesn't have the items that you just discussed
specifying what should be done at each step of the way; is that
right?
A. That is correct.
Q. And it doesn't tell you the parameters for the experiment
at the end, or the window of variation; is that right?
A. That is correct.
Q. Let me show you what's been introduced as McVeigh Exhibit
J400. And you've seen this before; is that right?
A. Yes.
Q. Have you reviewed the attachments to McVeigh Exhibit J400?
A. Yes.
Q. Are these protocols?
A. No.
Q. Why?
A. They do not contain what I consider to be essential in a
protocol which is a definition of how the results are going to
be evaluated at the end of the experiments. Some of the
details contained in there are a step towards protocols, but
they are in my view incomplete.
John Lloyd - Direct
Q. Dr. Lloyd, would you please explain to us what is meant by
the term "quantification" in trace analysis.
A. Simply that the analysis should determine or estimate as
far as possible how much of the detected substance is present.
Q. And what's the purpose of quantifying your results in trace
analysis?
A. Oh, quite simply and obviously, the evidential significance
of the trace depends on how much there is of it.
Q. Why?
A. For example, a person who had been in recent contact with
explosives might be contaminated with a substantial amount of
explosives. He might be contaminated with a very small amount
if the contamination was an event that had occurred sometime
ago. Of course one can't be precise, but at least it is of
some assistance to an investigator to know these things.
Q. We've heard several times throughout this trial the term
"microgram," "nanogram," and "picogram." What are those?
A. If we start off with an ounce. In an ounce there are
28 grams. A microgram is a millionth of a gram. A nanogram is
a billionth, and a picogram is a trillionth of a gram. It
should be respected that these are of course very small amounts
of material and that when one is considering quantities in
terms of nanograms, one is considering dust-sized quantities.
Dust -- I beg your pardon.
Q. There's some water there if you --
John Lloyd - Direct
A. Thank you very much. Excuse me.
In considering nanogram quantities, one is considering
dust-like particles of material.
Q. At the nanogram -- does that mean you can see a nanogram or
you can't, a nanogram of substance?
A. Not as a rule. One might be able to see a particle of that
size perhaps in a sunbeam as one can see dust particles in a
sunbeam.
Q. Would these measurements, the microgram, the nanogram, and
the picogram, are these the amount of substance that you are
sometimes testing in a trace analysis lab?
A. That is correct.
Q. How far down generally can you, can you test in a level at
a trace analysis lab; in other words, how many picograms or how
many nanograms can you test down to?
A. This does depend upon the instrumentation that is in use
and upon its level of maintenance, but one would expect to be
able to detect usually around the nanogram region and sometimes
less, going down into the picogram region.
Q. For instance, the CZE, would it go down to the picogram
region?
A. That probably would not. That is mainly used for the
determination of ions, the pizoelectrophoresis.
Q. I see. How about IMS?
A. The IMS would go down to the nanogram level, certainly.
John Lloyd - Direct
Perhaps below.
Q. And the GC/Chem?
A. That would have a similar sort of sensitivity.
Q. A GC ECD?
A. Again, comparable.
Q. How about an LCMS?
A. That would be less sensitive.
Q. It wouldn't go down to the picogram area?
A. No, I think not.
Q. How about a GCMS?
A. That would be intermediate, I think, between the GC ECD and
the liquid chromatography mass spectrometry.
Q. Now, is the quantification of the amount of residue that
you're testing on a questioned sample important with respect to
contamination issues?
A. Yes, it is.
Q. Why?
A. If, for example, one was working in a laboratory where
background levels of contamination were of the order of ten
nanograms, then if one obtained quantitatively a result of ten
nanograms on a specimen, then clearly one could not accept that
as a valid result. It is really too near -- or it is on the
base-line level. One would expect to see substantially more
than ten nanograms on your questioned sample if you are going
to say this is a significant result.
John Lloyd - Direct
Q. In reviewing the evidence in this case, have you found any
evidence or any charts showing that the FBI lab quantified any
of the results of the testing that they did with respect to the
Oklahoma City case?
A. I have seen no quantitative data.
Q. If you have no quantitative data, how can you ever rule out
the possibility of background contamination?
A. You cannot rule out the -- I beg your pardon. Without
knowing the level of background contamination, one can't attach
significance to the results one obtains from questioned
samples. I may have misread your question.
Q. Can you explain that a little bit better.
A. Could you repeat the question, please?
Q. Sure. If you don't quantify the results of the testing
that you're performing on the questioned samples, how can you
ever rule out the existence of background contamination?
A. The background contamination is something which will have
to be separately determined. And unless you know that figure,
then you can't rule it out.
Q. And so, in other words, if I understand your testimony, you
would have to make some efforts, reasonable efforts, to
determine what the level of background contamination is in your
lab; right?
A. Yes, that is crucial.
Q. Is it possible that every lab -- strike that.
John Lloyd - Direct
Is it possible that any lab on any given day is going
to be free of contamination?
A. No.
Q. Why?
A. Any laboratory which handles explosives is inevitably going
to acquire some level of contamination. It may be very small.
It may be very high. One can't make assumptions about it. It
is something which has to be experimentally determined.
Q. And once you determine what the level of your background
contamination is, then what can you do with that information?
A. It will provide with you a guide of what you should
consider to be significant in your questioned samples. Given
that you have determined the quantities in those.
Q. Let's say, for instance, you're working in a lab that
you're employed at, and you know the background contamination
level is ten nanograms, if I can use that as just a figure. If
you tested a sample, questioned sample and quantified it and
got ten nanograms or less of PETN, what would you do with the
information?
A. I would disregard it.
Q. Why?
A. Because I could not exclude the possibility that there was
a contamination of my questioned sample due to the
circumstances in which the analysis had been made.
Q. Have you seen any evidence in this case that the FBI lab in
John Lloyd - Direct
April and May of 1995 had any regular monitoring of background
contamination in the explosive trace analysis lab?
A. I see no evidence that there was regular monitoring.
Q. Do you have an opinion as to whether or not that is a
scientifically sound method for a trace -- explosives trace
analysis lab to employ?
A. I think it's crucial that a trace explosives laboratory
should employ routine monitoring for contamination.
Q. Have you reviewed the testimony of Special Agent Burmeister
and the testimony of Miss Jones in this case?
A. I have seen those transcripts, yes.
Q. You were not able to be present for that; is that right?
A. I beg your pardon?
Q. You were not able to be present for that; is that right?
A. That is correct.
Q. Now, have you read Special Agent Burmeister's testimony
regarding why the FBI lab did not monitor for background
contamination levels in the trace analysis area?
A. Yes, I have read that.
Q. What is your understanding of his reasoning?
A. I found it rather difficult to follow. But it is my
understanding that he states if he analyzes a particular
section of the garment for contamination, he will not be able
to reproduce that analysis with another garment. And that is
my understanding. I'm afraid it doesn't really seem very clear
John Lloyd - Direct
to me.
Q. In other words, I guess the question more is about
quantitative analysis than the background contamination; is
that right?
A. Yes.
Q. If I understand what you're trying to tell me -- and
correct me if I'm wrong -- his testimony was that if you test
this area around my button on the jacket, you'd have to do that
on every jacket after that in the same area; right?
A. That is my understanding, yes.
Q. What -- do you agree with that?
A. Well, I don't see any problems of doing it, if you would so
wish to do it.
Q. Do you have to do it that way?
A. No.
Q. To do quantitative analysis?
A. No. One can do other particular areas, like the pockets or
one can do the whole garment. I mean there is no difficulty in
doing that.
Q. Do you accept the findings in your -- personally, a
forensic chemist and science, scientist, do you accept the
results from trace analysis work if there is not any
quantitative analysis done?
A. I think under those circumstances the, the results are of a
very limited value because one cannot exclude the possibilities
John Lloyd - Direct
of the inference of background contamination and so on. And if
one does not know the quantities, it's very difficult to place
an interpretation on them in terms of how long the
contamination may have been there, whether it's recent, whether
it's long standing, and so on.
Q. If you haven't set the parameters or the window of
variation for the experiments that you're conducting, do you
feel as a forensic scientist and chemist that those are good,
solid results?
A. It is not at all acceptable, not in any way, that results
can be produced which haven't been referred to the expected
level of variation of the technique. It is in my view not
simply playing a game without goal posts -- it is in fact
playing a game with no goal posts whatsoever.
Q. How do you -- how do you as a forensic chemist interpret
the results when you don't know what the window of variation is
for the particular test that you're looking at?
A. It's not possible to do that.
Q. Why?
A. Because the judgment is an entirely subjective judgment.
It is open to the objection that it seems to be the so-called
scientific results are being used to justify some preconceived
opinion.
Q. Now, we've talked generally about background contamination
in a lab. You're familiar with the testimony regarding the
John Lloyd - Direct
packaging of Mr. McVeigh's clothes, are you not?
A. Yes, I am.
Q. And what is your opinion about the way in which those
clothes were packaged? Is that forensically sound or not?
A. It is not forensically sound.
Q. Why?
A. They were packaged in paper, which was -- it's permeable to
some explosives, as has already been described. I understand
the bag wasn't sealed. It seemed to have just been folded over
at the top.
Q. What's wrong with that?
A. It isn't airtight, so that particulate matter can go in and
out.
Q. What about plastic Ziploc bags?
A. For explosives such as ethylene glycol dinitrate, EGDN, and
nitroglycerine, they are totally unsatisfactory.
Q. Why?
A. Because the polythene of which they're made is permeable to
such explosives. One can show that -- very easily that
explosives can permeate those bags within a matter of hours.
Q. Now, if we place -- if we're going to use the paper bag,
should we place all of the clothes in the same bag?
A. Well, if you so wish. If you're interested in examining
the residues on any particular article of clothing, then
clearly that is not an acceptable practice.
John Lloyd - Direct
Q. Now, let's say we put it in the paper bag, all the clothing
in the paper bag, and then we put it in a box and tape the box
up. Is that sufficient?
A. It might. It would not prevent the ingress of EGDN and
nitroglycerine. How well it was taped up would depend upon
whether it was accessible to particulate material. It's
impossible to know.
Q. Now, we've talked about the paper bags and the Ziploc bags.
Is there other methods whereby you can protect the items of
potential evidence from contamination, other than a paper bag
and a Ziploc bag?
A. Yes. There are other forms of containment. Bags made of
nylon film are impermeable on the whole. Metal-foil-lined bags
have been mentioned, and I understand that the FBI is now using
paint cans for containing exhibits which are susceptible to
contamination.
Q. And are all three of those better methods than a paper or a
nylon bag -- a plastic bag?
A. Yes.
Q. You said a nylon bag. It's not a nylon like a Windbreaker.
Are we talking about something like that, or something
different?
A. No, we're talking about nylon film. It looks a bit like
polythene, but it has a different feel to it.
Q. And in your opinion, has it been a recent discovery that
John Lloyd - Direct
Ziploc or polyethylene bags are not suitable or not the best
method for containing evidence on a trace analysis issue?
A. It's been known for many years that polythene containers
are not suitable.
Q. Now, earlier you mentioned -- we talked about -- I think we
did, anyway -- transportation issues with respect to levels of
contamination. What issues come up in your mind with respect
to transporting evidence, from a contamination standpoint? Did
my question make sense?
A. No.
Q. Well, I don't blame you.
Are there issues related to the transportation of
evidence in the contamination area? In other words, can
evidence be contaminated in the transportation?
A. Yes, that is a possibility. Depends upon the level of
contamination of the vehicle.
Q. How do you know, if you don't check the vehicle?
A. You can't know. I think this is the whole point of all of
this argument concerning contamination: that it isn't adequate
to make assumption and speculation that contamination could not
have occurred. It's something which should be determined by
experiment. If it's not determined by experiment, then any
test results that you get on a specimen is meaningless. It has
no basis.
Q. What about an airplane with respect to the air pressure:
John Lloyd - Direct
Does that pose a problem or a risk?
A. The variation in air pressure in an airplane could pump air
in and out of the contents of a bag or of a box.
Q. Now, can you briefly describe the control measures that you
feel should be taken to protect evidence from contamination
from the collection to the entry into the lab.
A. Quite simply that when the clothing is removed -- if we are
concerned with clothing -- it should go straight into an
appropriate container; and that should go to the laboratory,
where it should not be opened or touched until it is received
by the person who is going to do the analysis.
Q. How do you feel about a situation where the person checking
in the clothing -- since we're talking about the clothing --
sets the box of the clothing on the ground and then places it
up on his prepared examination table?
A. I understand this was done in an Explosive Unit. It is a
matter of experience that such places are subject to
contamination, particularly the floors. If the box was put on
the floor, it would become contaminated. It was then put on
the table, the table surface would become contaminated, which I
understand is brown paper. And generally, anything else which
was put on the brown paper would be very vulnerable to
contamination.
Q. Have you seen any information which would indicate to you
that the FBI lab in April and May of 1995 had tested the floor
John Lloyd - Direct
in the Explosives Unit for contamination?
A. I have seen no evidence that I'm aware of that refers to
this particular procedure concerning the box and the table.
Q. Now, you said, "especially the floor," a moment ago. Why
especially the floor?
A. Partly it is a matter of experience that that is what
happens in units such as the Explosive Unit. It's happened at
laboratories in England. It's expected because it's carried
onto the floor by people's feet.
Q. Do you -- have you seen labs that take special precautions
with respect to people's feet?
A. Yes. Both the laboratory in which Linda Jones works and
the Belfast laboratory adopt disposable overalls and booties to
go on the feet and many other precautions for people working in
those laboratories.
Q. Are you familiar with any studies with regard to
contamination in the environment and places like planes and
trains and taxi and military planes and things like that?
A. Some work has been done in England by Dr. Hiley, of whom we
have already heard.
Q. Robin Hiley?
A. Yes.
Q. And what did he find with respect to contamination? I'm
talking about -- this is explosive residue; is that right?
A. Yes.
John Lloyd - Direct
Q. What did he find with respect to contamination in the
environment in places like the trains or the taxi or things
like that?
A. He found contamination by RDX in some taxis and some
airports and in police stations. If I might add, I beg your
pardon, that the contamination in police stations went far
beyond RDX but included PETN and nitroglycerine.
Q. Now, you've had occasion, have you not, to review the notes
that were provided from the FBI lab in this case; is that
correct?
A. Yes.
Q. Based on your overview and your review of the notes that
were provided, do you have any concerns about the method and
manner in which the clothing and personal possessions in this
case were handled by the FBI lab?
A. Well, it is a matter of concern that they were unpackaged
and that they were taken to various units before they were
finally subjected to trace analysis by Mr. Burmeister.
Q. Why do you find the fact that they were taken to various
units in the lab of concern? And I'm assuming you mean other
than the residue analysis area.
A. Yes. Because I have seen no evidence that there were
precautions taken to ensure that contamination should not have
occurred whilst the exhibits were being walked around these
various other parts of the laboratory.
John Lloyd - Direct
Q. Now, you heard the evidence that Mr. Mills removed the
items of clothing from the box and placed them in individual
polyethylene bags. Have you heard that?
A. Yes.
Q. Do you have an objection to what you know about the
procedure that he utilized in doing that?
A. Well, it's unacceptable that items should be repackaged
when they're received in laboratory, particularly in the
Explosive Unit. It doesn't seem acceptable to me.
Q. If I understand you correctly, the objection is that it was
done at all in the Explosives Unit. Is that what you're
saying?
A. That it was done in an Explosives Unit is -- makes it even
worse. But, I mean, really it shouldn't happen in any case,
because one would hope that the person analyzing the -- finally
analyzing the item will be able to answer for the state of the
packaging when he receives it. Clearly, that's impossible
under the arrangements which were in place.
Q. What's a control sample?
A. The meaning is ambiguous. It can mean either a sample
which is intended to show that we have a blank, a blank sample,
or it is also more commonly in analytical laboratories used to
mean a sample which is being deliberately made up to simulate a
real sample in order that one can check that the system is
working properly.
John Lloyd - Direct
Q. And what's the purpose in using control samples?
A. Well, on the one hand, to make sure the system is working
properly; and on the other, in the other sense, to make sure
that there is no contamination involved in the procedure.
Q. Should control samples be taken only in the lab, or should
they be taken in other places as well?
A. If the items have been exposed in other places, then it
clearly would be helpful to have control samples taken in those
places, though clearly, if the procedures have been appropriate
and proper packaging have been used, then that would not be
necessary.
Q. So I understand what you're telling me correctly is, for
instance, the clothes: Control samples possibly should have
been taken at the Noble County Jail?
A. If the clothing had been exposed to the environment there,
yes.
Q. And from the box from which they were put -- the box that
they were put in prior to them being put in it?
A. Yes.
Q. The plane that they were transported in to the lab?
A. That is quite correct.
Q. And the surface upon which they were extracted from the box
to be repackaged; right?
A. Yes.
Q. Have you seen any evidence in this case that those control
John Lloyd - Direct
samples were taken with respect to Mr. McVeigh's clothes?
A. No.
Q. In your mind, is there -- what's -- well, we've already
gone over that. We'll just skip that.
Who was the first forensic examiner that you can tell
from what you've reviewed and read in this case to handle or
analyze Tim McVeigh's clothes?
A. The first examiner to analyze them appears to be Mr. Martz.
The first person to handle them appears to be Mr. Mills.
Q. And Mr. Martz handled the clothing how many days after
Mr. McVeigh's arrest, if you know?
A. A day or two. I can't remember precisely the number of
days.
Q. Now, this is what we've already talked about. Mr. Martz
had them, and then they went to Hair and Fiber and Special
Photo and then to Mr. Burmeister; is that right?
A. Yes.
Q. Have you reviewed the tests that were performed by the lab
on the pants, Mr. McVeigh's pants?
A. Yes, I have.
Q. And who at the lab performed forensic testing or forensic
analysis on the pants; do you know?
A. Mr. Martz and then Mr. Burmeister.
Q. What were Mr. Martz's findings with respect to the pants?
A. May I refer to my notes?
John Lloyd - Direct
Q. Yes, sir.
MS. WILKINSON: Objection, your Honor. Mr. Martz made
no findings. If he's asking for the data he generated -- but
he made no findings.
THE COURT: I don't know of any findings.
BY MR. TRITICO:
Q. Can you tell, from looking at the notes and the charts that
you've read, the results of Mr. Martz's testing?
A. Yes.
Q. And what was the result of that testing?
A. May I refer to some summary notes that I made?
Q. Yes. Please.
MS. WILKINSON: Your Honor, while Dr. Lloyd is looking
at his notes, may I make an objection?
THE COURT: Well, I don't know what notes he's looking
at. Is he looking at notes from the FBI Laboratory, or what?
MR. TRITICO: This is just a summary that he made, so
he wouldn't have to go through all of the pages of them.
THE COURT: I don't know how counsel or I or the jury
or anyone know what notes he made notes from.
MR. TRITICO: Do you want me to ask him a few
questions about them?
THE COURT: I think you better.
BY MR. TRITICO:
Q. What are those notes you're looking at?
John Lloyd - Direct
A. A summary of the results that I've culled from the bundle
of Burmeister's laboratory notes.
Q. How many pages of notes did you go through that you
received from me or that I got from the Government?
A. The total size of Mr. Burmeister's bundle was about 5,000
pages.
Q. And from that 5,000 pages, you made some notes with respect
to the clothing and Q507 and a few other items; is that right?
A. That is correct.
Q. And that was for the purpose of assisting you in recalling
what the notes said without having to go back and look through
all 5,000 pages?
A. That is correct.
Q. Have you had a chance to refresh your recollection with
respect to the pants?
A. Yes.
Q. What did you find with respect -- I'm sorry.
MS. WILKINSON: I'm going to object, again, to
discussing Mr. Martz's findings when they're not --
THE COURT: These are Burmeister's notes, he said.
MR. TRITICO: These are the notes that we received
from the Government that included Mr. Martz's work, and they
were stamped --
THE COURT: My understanding of what the witness said
is they're from Burmeister's notes.
John Lloyd - Direct
Is that right?
THE WITNESS: Yes. It is correct that Mr. Martz's
charts and conclusions were included within Mr. Burmeister's
bundle of laboratory notes, your Honor.
THE COURT: All right.
MS. WILKINSON: Could I just ask Counsel to point out
to me what notes Dr. Lloyd is --
THE COURT: We'll do that at the recess, and then
you'll have a better opportunity to understand what's being
done here.
You may step down, now, sir, and we'll be taking our
afternoon recess.
And, members of the jury, you'll be excused now for
the usual rest period of 20 minutes, with the usual cautions of
avoiding discussion of the case or any aspect of it. And
anything outside the evidence should not come to your attention
during this period.
Excused, 20 minutes.
(Jury out at 3:11 p.m.)
THE COURT: All right. Recess, 20 minutes.
(Recess at 3:12 p.m.)
(Reconvened at 3:31 p.m.)
THE COURT: Be seated, please.
(Jury in at 3:31 p.m.)
THE COURT: Dr. Lloyd, if you'll -- if you'll resume
John Lloyd - Direct
the stand, please.
Mr. Tritico, you may continue.
MR. TRITICO: Thank you, your Honor.
BY MR. TRITICO:
Q. We were talking about the pants before we took the break.
Do you recall that?
A. I do.
Q. With respect to the testing that you have viewed, that you
have examined from the lab notes that were provided, were
consistent results obtained with respect to the pants?
A. No.
Q. Can you tell us why, how you found that.
A. Mr. Martz conducted IMS tests on the pockets and found that
RDX was present. Mr. Burmeister did the same experiment, and
he obtained response typical of nitroglycerine.
Q. What conclusions, if any, do you draw from that
inconsistent testing?
A. It is difficult to draw any conclusion except that one
explanation is a contamination.
Q. With respect to the testimony of Special Agent Burmeister
that Mr. McVeigh was right-handed, do you find that important?
A. I find it unsurprising.
Q. Okay. Assuming that he is right-handed, do you find that
important in your view of the testing that was done on the
pants?
John Lloyd - Direct
A. I don't see what importance is attached to it.
Q. Now, you're familiar with the testing that was performed on
Mr. McVeigh's car, are you not?
A. Yes.
Q. Are you familiar with any results of the testing, the
forensic trace analysis testing, on the car that are consistent
with the PETN that the Government claims was found on
Mr. McVeigh's clothing?
A. I see no evidence of the presence of PETN in Mr. McVeigh's
car if, in fact, Mr. McVeigh had PETN on his right hand, which
would have been the reason that it was in his right pocket.
Q. Where in his car would you have expected them to find PETN?
A. There would have been PETN quite likely present on the
steering wheel and on any other instruments or any other parts
of the car which came into contact with the hand.
Q. The gear shift?
A. Yes, if it was a right-handed one.
Q. The door handle?
A. Yes.
Q. Have you seen any testing by the FBI lab that showed PETN
on any of those items?
A. I have not.
Q. Have you reviewed any forensic testing of the fingerprint
card that was taken from Mr. McVeigh at the Noble County Jail
upon his arrest?
John Lloyd - Direct
A. Yes.
Q. What was the result of the forensic testing of the
fingerprint card of Mr. McVeigh?
A. There was no explosive found on it.
Q. If, in fact, Mr. McVeigh had enough PETN on his hand to
contaminate his pants pockets, would you have expected to find
PETN on the fingerprint card?
A. I think that is quite possible, yes.
Q. Have you viewed, Dr. Lloyd, any forensic testing of
fingernails and hair samples taken from Mr. McVeigh?
A. I recollect fingernail scrapings were taken and tested.
Q. What was the result of those tests?
A. They were negative.
Q. For explosives residue?
A. Yes.
Q. If, in fact, Mr. McVeigh had had PETN on his hands, enough
to contaminate his pants pockets, would you have expected to
find PETN in the fingernail scrapings?
A. Yes.
Q. Now, you've reviewed the testing, forensic testing,
performed on Mr. McVeigh's T-shirts. Is that correct?
A. I have.
Q. What are your conclusions with respect to the testing
performed on the T-shirts?
A. I think if one is prepared to ignore the contamination
John Lloyd - Direct
issues, to ignore the fact that there has been no quantitation
done, and that there have been no parameters specified, then I
can see that a person taking that point of view could conclude
that traces of PETN could have been present.
Q. In England, would you have reported the findings with
respect to the T-shirts if you had analyzed them there under
these circumstances?
MS. WILKINSON: Objection.
THE COURT: What's the objection?
MS. WILKINSON: Relevance, your Honor, what he would
do in -- under another legal system.
THE COURT: Well, does it make any difference whether
it would be in England or anywhere else?
MR. TRITICO: I was trying to tie it to where he
worked, but I'll ask him if he was working here.
THE COURT: Well, the objection is based on a legal
system; and I take that objection as valid.
BY MR. TRITICO:
Q. Would you have reported the findings as a forensic
scientist -- would you have reported these findings on the
T-shirts under these circumstances? Do you understand my
question?
A. I do, yes.
They would not have been reported.
Q. Why?
John Lloyd - Direct
A. Because of the considerable doubt raised by the
considerations that I have just mentioned.
Q. Now, let me talk to you for just a minute, Dr. Lloyd, if I
may, about the earplugs. Have you reviewed the testing that
was performed upon the earplugs?
A. Yes, I have.
Q. Do you agree with the findings of Special Agent Burmeister
with respect to the forensic testing of the earplugs?
A. No.
Q. Why?
A. If I may refer to my note.
I do not accept the presence on the earplugs of PETN.
The results that were obtained were a GCECD, which was a
negligible response; and GCECD, in the conditions used, is a
technique that is of very little value to the detection of
explosives.
There was a very weak GC/Chem response. The GCMS was
negative. The LCMS was negative. It is not reasonable that it
could be claimed that this result is consistent with PETN.
Q. What are the earplugs made of?
A. They're made of foam plastic.
Q. Are you familiar with Dr. Robin Hiley's work regarding
DNPNT?
A. Yes, I am.
Q. What is that?
John Lloyd - Direct
A. The full name is dinitrosopentamethylenetetramine.
Q. At some point, would you write that down for Mr. Zuckerman?
A. It's used as an additive in foamed plastics, particularly
polyurethane, to cause the plastic to foam.
Q. What findings did Mr. -- Dr. Hiley make with respect to
DNPNT and forensic testing?
A. He found that by GC/Chemiluminescence techniques it was
confusable with PETN and RDX.
Q. When you say "confusable," what does that mean?
A. That they would give rise to a response that could be
mistaken for these explosives, depending on the conditions.
Q. Have you seen anything performed -- any tests performed by
the Federal Bureau of Investigation on these earplugs to
determine if the PETN they were finding was in fact the result
of the earplugs mimicking the PETN?
A. I haven't -- I have seen no tests. It's possible that the
GCMS might have picked it up; but if it was present in small
amounts, which evidently it was, I think that is perhaps
unlikely.
Q. Now, who is Dr. Robin Hiley? We've been talking about him.
A. He is in Linda Jones' laboratory. He's responsible for the
research unit there.
Q. In summary, what are your conclusions after you have
reviewed all of the testing by the FBI regarding the earplugs?
A. I don't accept the identification of PETN. I also have
John Lloyd - Direct
reservations over the nitroglycerin and the EGDN
identifications.
Q. Okay. With respect to the EGDN, why do you have
reservations about that?
A. The three techniques that have been employed are basically
measuring the same thing. They are what is known as
"correlated techniques."
Q. What does that mean?
A. Perhaps as an example, if I wish to travel to the
airport -- hopefully I shall soon be able to do that -- I might
buy a map to find the route. And perhaps I might wish to
cross-check the route I'm taking, so I suppose I could go and
buy another map made by somebody else in a different package
and in a different color. But really, this isn't an
independent check on my route, because they would both give me
the same information.
And this is the situation here: If I wanted an
independent advice on how to get to the airport, then I suppose
I would go and ask somebody who had been there before and who
could cross-check the route that I had already chosen.
Q. Now, did you review the lab testing, the FBI lab testing,
with respect to Mr. McVeigh's boots?
A. Yes, I did.
Q. And what did you find?
A. That there are no traces of explosives on those boots.
John Lloyd - Direct
Q. How about ammonium nitrate?
A. One might have supposed that ammonium nitrate prills had
been present or ammonium nitrate in some form, given the
allegations that have been made.
Q. And were there any found, to your knowledge?
A. No.
Q. Do you find the fact that there was no ammonium nitrate and
no explosives residue on Mr. McVeigh's boots significant?
A. I find it very surprising that anybody could have handled
the quantity of ammonium nitrate that has been alleged and not
become contaminated even with a single prill or a single
particle. I think that is quite remarkable.
Q. Have you examined the boots personally?
A. Yes, I have.
Q. How is the tongue of the boots constructed?
A. It's stitched to the uppers all the way up.
Q. Stitched to the uppers?
A. Yes.
Q. The side of the boot?
A. Yes.
Q. And do you find that significant?
A. It will provide a cavity or a space in which particles
could be readily trapped if a spillage of them had occurred.
Q. Now, with respect to all the testing on the clothes, the
blue jeans, the T-shirts and the boots, have you seen any
John Lloyd - Direct
results with respect to fuel oil?
A. No.
Q. And have you seen any testing performed by the FBI lab
to -- I'm going to try that one more time.
Have you seen any testing by the FBI lab to determine
the existence, if any, of fuel oil on the T-shirts, the pants,
or the boots?
A. No.
Q. Do you find that significant?
A. It is testing that could have been readily applied.
Q. How about nitromethane?
A. That, too, could have been characterized.
Q. You stated a moment ago before I moved on to the boots that
you did not agree with the finding of nitroglycerin on the
earplugs. Can you explain that, please.
A. Similar reasons concerning EGDN. There was a positive
GC/Chem result, a weak GCECD response, and a positive GCMS; and
again, all these are related techniques that are measuring
basically the same kind of thing like the two maps.
Q. Now, with respect to the clothes and the boots, after
everything that you have seen, lab notes that you've received,
the testimony that you've seen or read and what you know about
the packaging, do you have an opinion as to the scientific
integrity of the conclusions drawn by the Federal Bureau of
Investigation with respect to those items?
John Lloyd - Direct
A. I'm afraid I don't accept that they have any scientific
integrity.
Q. Now, have you had opportunity to view what's become known
as Q507?
A. I have.
Q. Now, you examined it personally, did you not?
A. I did.
Q. Were any crystals on Q507 when you were allowed to examine
it?
A. No.
Q. And I take it since there were no crystals, you did not
perform any testing on Q507. Is that correct?
A. That is correct.
Q. Would you have liked to have had the opportunity to test
the crystals on Q507?
A. I would have been very interested to see them, yes.
Q. Have you been provided a copy of a report prepared by ICI
Explosives on some analysis of ammonium nitrate in this case?
A. Yes, I have.
Q. Have you reviewed that report?
A. Yes.
Q. Now, the testing by ICI was on some ammonium nitrate seized
from Mr. Nichols' house; is that right?
A. Yes.
Q. And the control sample was a known ICI prill; is that
John Lloyd - Direct
right?
A. Yes.
Q. Upon -- after reviewing that testing, was ICI able to
isolate the prills from Mr. Nichols' house as having come from
ICI Explosives?
MS. WILKINSON: Objection, your Honor. It isn't ICI
who issued the finding. It's Agent Burmeister.
THE COURT: Do you accept that correction?
MR. TRITICO: Well, as I read the report, I think it
came from ICI, also.
THE COURT: Well, my understanding from
Mr. Burmeister's testimony was that he went there and
participated.
MR. TRITICO: Okay. I'll go along with that.
BY MR. TRITICO:
Q. Mr. Burmeister's finding is that the prills could not be
solely identified ICI prills. Is that correct?
A. That is correct. They could not be solely identified as
ICI prills.
Q. And why is that?
A. Because there were certainly two other manufacturers in
which substances were present that were confusable with the ICI
prills.
Q. What, in Mr. Burmeister's analysis of the crystal off of
Q507 -- Is your understanding that ICI did not test the
John Lloyd - Direct
crystals off of Q507? Is that correct?
A. That is my understanding.
Q. And Special Agent Burmeister did; right?
A. Yes.
Q. What was his findings on the crystal with respect to the
compounds present in the crystal? Do you recall?
A. I do. Mr. Burmeister concluded there was present
aluminium, sulfur and silicon.
Q. Are those compounds -- what is that? Is that compounds you
can find in nature?
A. They are chemical elements which are very common in nature.
Q. Have you from reviewing the report from ICI -- have you
been able to determine if those compounds are consistent with
or in ICI prills?
A. They are in ICI prills, yes.
Q. Are they in other prills?
A. They are in other prills, too.
Q. What have you found to be the coating on an ICI Joplin
prill?
A. This appears to be magnesium silicate. Talc.
Q. And you call that magnesium silicate?
A. Yes.
Q. Now, you heard the testimony of Special Agent Burmeister
that the testing he did would only go down to an atomic level
of 11. Am I saying that correctly?
John Lloyd - Direct
A. An atomic number of 11, yes.
Q. What is the atomic number of magnesium silicate?
A. Of magnesium, the atomic number is 12.
Q. That's higher than 11?
A. Yes.
Q. If magnesium was present on the crystal that Special Agent
Burmeister extracted from Q507, would you have expected to find
that on this test?
A. That obviously depends on how much there was of it, but it
is more likely than not that he would have picked it up.
Q. Are the other items that he picked up off of the crystal
from Q507 the same type of things that you would find on
coating or an interior additive to an ammonium nitrate prill?
A. Yes.
Q. Do you find it significant that he did not find magnesium
on the crystal that he extracted from Q507?
A. I think some significance must be attached to it. ICI
material did contain magnesium; and as we've pointed out, there
was none on the crystals from Q507.
Q. Based on the findings that you've seen, the testing done by
Special Agent Burmeister, and the report from ICI, do you have
an opinion as to whether or not the crystals from -- extracted
from Q507 came from ICI Joplin ammonium nitrate prills?
A. It's impossible to say.
Q. Now, when you -- when you examined Q507 and looked at it
John Lloyd - Direct
personally, did you find any evidence of scorching or burning
or charring or something like that?
A. It appeared to me the surface had been scorched.
Q. And at what temperature would you expect wood to scorch?
A. Around 250 centigrade, some 500 Fahrenheit, in that order.
Q. And at what temperature does ammonium nitrate vaporize?
A. Around 200 degrees centigrade.
MR. TRITICO: May I have a moment, Judge?
THE COURT: Yes.
BY MR. TRITICO:
Q. Finally, Dr. Lloyd, based on everything that you've seen,
read or heard in this case, do you have an opinion as to the
quality of the forensic testing performed by the FBI in this
case?
A. I have been very -- I have been very surprised at the --
I'm afraid what seems to me the inadequacy of it.
MR. TRITICO: I thank you very much, sir.
Pass the witness.
THE COURT: Ms. Wilkinson.
CROSS-EXAMINATION
BY MS. WILKINSON:
Q. Good afternoon, Dr. Lloyd.
A. Good afternoon.
Q. As Mr. Tritico would say, we've never had the pleasure of
speaking, have we?
John Lloyd - Cross
A. I believe we have met last December.
Q. We've never talked about the case, have we?
A. That is correct.
Q. When did you start working for the defense on this case?
A. Last December.
Q. Meaning December of 1996?
A. I think it would be about September.
Q. September. I'm sorry. So about nine months ago?
A. Yes.
Q. And how much have you gotten paid to this point?
A. I don't know. I haven't worked it out yet. I haven't
claimed yet.
Q. What's your fee?
A. My fees -- I believe it's $125, $150 an hour.
Q. Approximately how many hours have you put in to date?
A. Without checking my records, I can't tell you precisely;
but a few hundred.
Q. So you're getting paid quite a bit of money to come in and
testify today; correct?
MR. TRITICO: I'll object. That's argumentative and
badgering.
THE COURT: Well, "quite a bit of money" is not very
scientific.
BY MS. WILKINSON:
Q. Dr. Lloyd, you said a couple hundred hours; correct?
John Lloyd - Cross
A. Possibly that order. I really haven't come to the figures.
Q. Could you take a moment and do that, please.
A. I'm sorry. My records are at home.
Q. Would it be fair to say you've spent over 200 hours on this
case?
A. Yes, it would.
Q. At $125 an hour; correct?
A. I think that's the figure, yes.
Q. And since you left the forensic home office in Great
Britain, you have always testified for the defense; is that
correct? Since you left the --
A. In criminal cases, yes.
Q. And you've always been paid to testify that there was
always a possibility of contamination; correct?
A. No.
Q. Well, if I had your transcripts from prior testimony, I
could rely on those transcripts as accurate; correct?
A. That depends upon which cases you were taking them from.
I've worked on very many cases.
Q. Well, you testified under oath in those cases, didn't you?
A. Yes, of course, I did.
Q. And so I could rely on the principles that you discussed in
there about explosive trace analysis as fair and accurate;
correct?
A. Yes.
John Lloyd - Cross
Q. And in every one of those cases, you've testified that
there is always a possibility of contamination; correct?
MR. TRITICO: Excuse me, your Honor. I'm going to
object that this is improper impeachment, because she hasn't
told him what cases she's talking about.
MS. WILKINSON: I can talk about a specific case, your
Honor.
THE COURT: All right. But I understood your question
to be in all testimony.
MS. WILKINSON: That's true.
THE COURT: That question is not objected to -- should
not be objected to. If it is, it's overruled.
BY MS. WILKINSON:
Q. Dr. Lloyd, in criminal cases that you've worked on since
you left the home office in 1991, haven't you always testified
there is always a possibility of contamination?
A. No. That is nonsense.
Q. Okay. Let's talk about Regina vs. Sean McNulty, back in
1994. Do you recall that case?
A. I do recall it, yes.
Q. Didn't you testify in that case that there is always a
possibility of contamination?
A. I did.
Q. And in fact, you testified that even when Ms. Jones, who
was the expert on the other side in that case, took extensive
John Lloyd - Cross
measures to avoid contamination using the booties that you've
described that I think are appropriate and other things that
that was not sufficient to avoid contamination; correct?
A. Perhaps I might point out that this case is now the subject
of an appeal. Based --
Q. I would appreciate it if you'd just answer the question.
MR. TRITICO: I'm going to object. He was attempting
to answer the question.
THE COURT: No, he's answering a different question.
The question is what his testimony was.
Please answer that question.
THE WITNESS: My testimony was that contamination was
an issue.
BY MS. WILKINSON:
Q. And it was an issue despite the fact that the experts in
that case and the police had taken into account or followed the
procedures that you've described here for the jury today;
correct?
A. Not entirely, no. They had not entirely followed those
procedures.
Q. Well, they had taken control swabs, hadn't they?
A. In some cases, they had.
Q. And they had worn Tyvex protective suits?
A. No. In some -- in the investigation, they were half naked,
which was -- it was hot weather, and most of them had discarded
John Lloyd - Cross
their protective clothing. It was really most objectionable.
Q. And did you raise that in your testimony?
A. Yes.
Q. If I showed you your transcript, could you find it?
A. It was -- it was raised by the barristers in the
cross-examination and in the examination of Ms. Jones.
Q. No, I'm talking about your testimony, not Ms. Jones'
testimony.
A. It was raised in the case. I mean --
Q. But you didn't testify to it, did you?
A. I probably didn't testify to the way they were not wearing
their protective garments. I can't really remember.
Q. And you testified that the laboratory took control samples;
right? They do background samples over at Ms. Jones'
laboratory?
A. They do, yes.
Q. And they wear the protective suits; correct?
A. Quite correct, yes.
Q. And they wear the protective boots?
A. Yes, they do.
Q. And you said despite that, there was still the chance of
contamination; correct?
A. The chances of contamination in that case were the chances
of contamination arising at the scene itself and because the
police officers concerned had visited both the scene and the
John Lloyd - Cross
houses where Mr. McNulty had been.
Q. You weren't willing to eliminate the chance of
contamination even at the laboratory, were you?
A. No, that can't be eliminated, because on occasion, we do
find that it does occur.
Q. So the possibility again exists no matter what one does to
try and eliminate the chances of the contamination, right? The
possibility.
A. I quite agree.
Q. Now, you've also said, haven't you, that just because you
don't find certain residues at a scene doesn't mean they're not
there? Correct?
A. Yes. One doesn't necessarily detect residues. They can be
missed.
Q. And there is multiple reasons for that; right?
A. There could be.
Q. You might not have searched or swabbed the correct area?
A. That is a possibility, yes.
Q. Or they may not have used the appropriate swabbing or
collection technique to collect that type of residue; correct?
A. That is right.
Q. So if there is a finding that there is no residue in
Mr. McVeigh's car, that doesn't mean there weren't residues
there; correct?
A. The possibility that there were residues there that were
John Lloyd - Cross
not detected does remain. I would be surprised, though --
Q. I'm just asking you whether -- residues could still be
there even if they weren't detected?
A. I mean, it seems to me something of a contradiction. I
would accept that -- I mean mistakes can be made and that the
searching might be inefficient, which could result in items not
being seen. I can accept that; but I think it's not very --
not very possible given the circumstances of the case when one
might expect to see a substantial contamination.
Q. So are you saying, then, Agent Burmeister and his
colleagues did a good job collecting samples for residues?
A. I have no idea. I would accept that they were experienced
and would have done an adequate job in searching that
particular car, so far as I know. I haven't seen any full
details of it.
Q. So you're telling us now, unlike what you said on direct,
that the FBI did a good job in collecting the residues and you
assume because you know Agent Burmeister; correct?
A. I have met him briefly.
Q. And you have no doubt about his professionalism, do you?
A. I'm not able really to comment on that. I can only comment
on Mr. Burmeister so far as I'm acquainted with his results and
conclusions.
Q. Well, you reviewed his work in other cases, haven't you?
A. I have in the World Trade Center, yes.
John Lloyd - Cross
Q. And you didn't raise any issues there, did you?
A. I did raise issues. It was rather unclear in that case who
was responsible for the chemistry in it, and some of it was
inadequate; but who was responsible for it is not really clear
from the --
Q. Well, you didn't testify to that, did you, Dr. Lloyd?
A. I didn't testify in that case, no.
Q. And today you're telling us that you believe the FBI did a
sufficient job collecting residues in the car to determine
whether they were actually present. Is that what you're
saying?
A. I don't know whether they did a sufficient job or not. I
think they may well have done. I mean you're asking me to
comment on something that is not fully accessible to me.
Q. So you just don't know, do you?
A. Well, I'm prepared to accept that they did a reasonable job
when they searched the car. I'm --
Q. So there is --
MR. TRITICO: Excuse me --
THE COURT: Let him finish his answer.
MS. WILKINSON: Excuse me.
BY MS. WILKINSON:
Q. Go ahead, Dr. Lloyd.
A. It has been put to me in this case that Mr. McVeigh handled
large quantities of ammonium nitrate and he was contaminated
John Lloyd - Cross
with PETN. I would expect under those circumstances, if that
is correct, that these materials would be present in his car in
very substantial amounts, particularly the ammonium nitrate;
yet not one single prill of that material has been found. I
would imagine that Mr. Burmeister would know what an ammonium
nitrate prill looks like, and I would imagine he would have
searched carefully for it.
Q. And you reviewed his testimony and saw that he said that he
searched for those prills in the car and didn't see them;
correct?
A. Yes.
Q. So what you're saying is that he did a sufficient or
acceptable job in collecting residues or looking for these
residues in this case; correct?
A. Well, presumably.
Q. With the data that you have?
A. Yes.
Q. Now, would it change your testimony if you found out that
Mr. McVeigh's car was left in Oklahoma City and he didn't get
into that car until after he detonated the explosive device?
MR. TRITICO: Excuse me, your Honor. I'm going to
object to that as totally outside the record of any evidence in
this case, and I object to it.
THE COURT: Overruled. This is hypothetical, you
understand.
John Lloyd - Cross
THE WITNESS: Yes.
THE COURT: All right.
THE WITNESS: If he had been involved in constructing
this device, he would have been contaminated with ammonium
nitrate prills, if that is the allegation against him. If he
had then got into another car, the Mercury car, then he would
have transferred ammonium nitrate to that.
BY MS. WILKINSON:
Q. Well, that's not the hypothetical, Dr. Lloyd.
A. I understood you were telling me that after he had parked
the Ryder truck, he got into the Mercury car.
Q. Well, let's assume he built the bomb the day before
April 19, on April 18. Okay?
A. Yes.
Q. And you don't know what boots he was wearing when he built
that bomb, do you?
A. I do not.
Q. So he could have been wearing different shoes, couldn't he?
A. That is a possibility.
Q. And you don't know whether -- after he constructed the
device and dealt with the ammonium nitrate, whether he washed
his hands, do you?
A. I don't.
Q. And if he washed his hands, ammonium nitrate is porous and
soluble, it easily would have washed away?
John Lloyd - Cross
A. He would have removed it from his hands, yes.
Q. So there is a great chance that if he built the device on
April 18, washed his hands or changed his boots or did a
variety of things and then got into the Ryder truck and drove
it to the Murrah Building that he wouldn't have residue on his
hands or on his boots; correct?
A. If he changed his boots and washed his hands, there would
be no -- clearly no ammonium nitrate upon those.
Q. So based on those facts, you wouldn't be so surprised that
there wasn't any finding of ammonium nitrate prills on his
boots -- correct -- if you would take those assumptions --
A. Yes.
Q. -- as correct?
And you wouldn't be surprised to find out that there
was no PETN on the steering wheel; correct?
A. I think PETN is a rather different matter from ammonium
nitrate.
Q. Well, haven't you testified in previous cases -- in fact, a
case I just mentioned, Regina vs. Sean McNulty -- if someone
were to wash their hands, powdery substance of PETN would wash
away, on page 44 of your transcript?
A. I don't recall the circumstances of that testimony.
Q. Well, would you like to see your testimony to refresh your
recollection?
A. Yes, I would like to, please.
John Lloyd - Cross
Q. Does that refresh your recollection, Dr. Lloyd?
A. I beg your pardon. I'm only a short way through it.
MR. TRITICO: Your Honor, I don't know what's been
provided him, but I don't know if he needs more than what she's
given him to review.
THE COURT: Well, he can speak for himself, I'm sure,
if he does.
MS. WILKINSON: Your Honor, perhaps I could help by
pointing to the question.
THE COURT: All right.
BY MS. WILKINSON:
Q. I believe it ends with, "Does rain wash away traces of
either RDX or PETN?" Do you see that, Dr. Lloyd?
A. No, I haven't found that yet.
That's on page 44, perhaps? At what point?
THE COURT: Are there line numbers in this?
MS. WILKINSON: There aren't, your Honor. Not in
these transcripts.
THE WITNESS: This does seem to me quite irrelevant.
BY MS. WILKINSON:
Q. Dr. Lloyd, if you could stick with the question. Did you
testify in a previous case that PETN residues could wash away
fairly readily?
A. Yes. This seems to be referring to the effect of a fire
brigade spraying --
John Lloyd - Cross
Q. Dr. Lloyd, please, if you could just answer the question,
which I think you did. You said yes?
MR. TRITICO: I'm going to object. I believe he was
trying to answer the question.
THE COURT: Well, he's talking about other parts of
it. The question is very specific.
You can repeat it.
BY MS. WILKINSON:
Q. Did you testify that PETN residues, especially in a powdery
form, could wash away fairly readily?
A. Yes.
Q. Thank you.
MS. WILKINSON: Could I retrieve the documents so
Mr. Tritico can see?
THE COURT: Yes.
BY MS. WILKINSON:
Q. Dr. Lloyd, you're not changing your testimony today, are
you, that PETN wouldn't wash away?
A. Not one jot.
Q. Pardon?
A. Not one jot.
Q. So you wouldn't be surprised if Mr. McVeigh had handled
detonation cord and had gotten that fine, powdery PETN on his
hands, washed his hands, and didn't get into the Mercury until
the next day that he wouldn't leave any PETN residue on the
John Lloyd - Cross
steering wheel; correct?
A. I think he would have left residue, and perhaps you might
allow me to explain my answer to the last question.
Q. Sure. Go ahead.
A. The piece -- the document you have shown me was referring
to the loose deposition of PETN on a surface, a metal surface.
And of course, powdery PETN under those circumstances is very
readily washed away.
But when PETN becomes adsorbed on the skin's surface,
which is I think the point that we are concerned with here,
those residues are very persistent indeed. It's possible to
pick up a PETN adsorbed on skin surface for days afterwards.
That is a well-established experimental fact.
Q. Dr. Lloyd, didn't you also testify that PETN would be
removed by the force of water from a hose?
A. Clearly, but not applied to somebody's hands.
Q. So if it was absorbed into the skin, it would be retained
in the skin; correct?
A. It's available on the skin surface -- it is strongly
retained on the skin surface. But I mean, this does become
available for transfer to something grasped like a steering
while.
Q. So Dr. Lloyd, you're trying to have it both ways, aren't
you?
A. I am not.
John Lloyd - Cross
Q. You're saying it's absorbed into the skin; therefore, it
will stay, but it's on top of the skin enough to transfer
readily to the steering wheel. That's what you're telling this
jury?
A. This is experimentally demonstrated that a person
contaminated by PETN on the skin surfaces can contaminate a
steering wheel. I've done it. I've demonstrated it.
Q. And doesn't it depend on the quantity of PETN and whether
the person has washed their hands and how long that PETN has
been on the person's skin?
A. It does depend on those factors, of course.
Q. So you wouldn't be surprised if Mr. McVeigh had handled
PETN but not left residue in the vehicle; correct?
A. I beg your pardon?
Q. You wouldn't be surprised if he did not leave residue on
the vehicle. You wouldn't be surprised if he did, but you
wouldn't be surprised if he didn't -- correct -- depending on
all of those circumstances?
A. Yes. There is a probability that there would be some
remaining on the steering wheel. One can't specify what those
probabilities are, but certainly the event could occur.
Q. And it could just as easily not occur.
A. Yes.
Q. And you don't have any information about whether
Mr. McVeigh in this hypothetical changed his shoes or whether
John Lloyd - Cross
he washed his hands or took a shower, do you?
A. I have no such information.
Q. And that could affect your conclusions in this case, could
it not?
A. It could do.
Q. Clearly could affect them as to the ammonium nitrate --
correct -- because of the solubility of ammonium nitrate?
A. Yes.
Q. Now, you talked quite extensively on direct examination
about quantitative analysis of explosives, and I don't want to
get into too much detail of that. But quantitative analysis of
explosives residue or trace amounts is only of limited benefit,
is it not?
A. I don't accept that at all.
Q. You don't. So if someone were to test one corner of a
jacket and find a certain quantity of residues, these nanograms
that you've been talking about, and then tested an entire
jacket, the quantitative analysis would be quite different,
wouldn't it, if you're comparing two different surfaces?
A. Yes.
Q. And size of surfaces?
A. Yes, of course.
Q. So if you found 10 nanograms of PETN on my collar, in a
small area, that would tell you something quite different than
if you found it all over my jacket; correct?
John Lloyd - Cross
A. It could do.
Q. So qualitative (sic) analysis of the amount of explosives
doesn't tell you when the explosives was placed there, does it?
A. No, it doesn't tell you when it was placed there; but at
least it provides you with some guide.
Q. It doesn't tell you how long it's been there, does it?
A. If the contamination of the garment was substantial, then
one might infer it was the consequence of a recent contact.
Q. But these are all relative concepts -- correct -- the
quantitative analysis? It's not exact numerical comparison but
kind of the relative comparison of relatively large amounts
with relatively small amounts; correct?
A. It is a comparison between amounts relative to one another,
yes.
Q. So in this case, when Agent Burmeister found relatively
large amounts of PETN on the shirts, that tells you something
about the amount of PETN that Mr. McVeigh came in contact with;
correct?
A. I don't know what amounts he found on the shirts.
Q. Well, you've reviewed all the tests that he conducted;
correct?
A. I have.
Q. And all of the machines despite their varying sensitivities
found PETN on the shirts; correct?
A. May I just refer to my notes?
John Lloyd - Cross
Q. Sure.
A. I think it depends really upon what you mean by "found."
Some of these results would be open to challenge, I should have
thought. But yes, in general, there was a detection of PETN on
these garments.
Q. And in sufficient amount so that this amount could be seen
by various machines. I mean, common sense tells you if you
have a sample and it's very small, it can be used up by one
machine -- correct -- and you might not detect it by the next
machine, but that doesn't mean it wasn't there? Correct?
A. Yes. Well, let's suppose that the sensitivity of each
machine was 1 nanogram and we have 1, 2, 3, 4, 5, 6, 7
detections of PETN, each of them 1 nanogram, 7 nanograms in
total. That is really a rather small amount, particularly if
you're suggesting that the person concerned has been cutting
detonation cord.
Q. Well, you don't know how much of that PETN powder got on
the person to begin with, do you?
A. No, but one --
Q. One could speculate?
A. One would expect that the quantities would be very much
more than 7 nanograms -- very, very much more.
Q. And what is that based on, Dr. Lloyd? What kind of
scientific study do you have to show that?
A. Examination of military personnel who have been cutting
John Lloyd - Cross
detonation cord.
Q. And you have a study that shows how much of that PETN
powdery substance was on those military personnel?
A. Yes.
Q. That's been documented?
A. It has been documented some years ago, yes.
Q. What's the name of the study?
A. It was published in 1983. I think it was -- the results
were presented in the Quantico results.
Q. In the what results?
A. No, I beg your pardon. The results of particular
relevance -- there are some results at Quantico which were
reported on the levels of PETN and other explosives found on
military personnel. The particular example which I have in
mind here is the case of a laboratory colleague who attended a
military establishment in which PETN cord had been used, and he
was contaminated as a consequence for six weeks afterwards.
And he was cons -- he was contaminated with microgram amounts.
Q. Now, are you saying the study was presented in Quantico in
1983?
A. No. This particular one concerning my colleague was not
presented at Quantico. It was presented in an internal report.
Q. So it's never been published?
A. That is right.
Q. So it's had no peer review; correct?
John Lloyd - Cross
A. That is correct, yes.
Q. Now, there is another study of PETN and its availability in
public places, isn't there? You discussed it with Mr. Tritico
during your direct examination.
A. That is right.
Q. And that was by Dr. Hiley?
A. Yes.
Q. Who you recognized as an authority in this area; correct?
A. Yes.
Q. And you misstated his conclusions, didn't you?
A. I apologize if I did.
Q. I think you said that there was PETN found in police
stations through his study; correct?
A. Yes, I did. Now you remind me. I believe that was in a
police vehicle, was it not?
Q. And that was the only finding of PETN based on all the
sampling they did in public places, vehicles, buildings, and
other public areas. Correct?
A. Yes.
Q. And didn't they conclude that based on that study that the
presence of PETN in public -- in a public environment was very
rare?
A. So far as the English environment is concerned, yes.
Q. And isn't that the only known study you know of of the
availability or likelihood of finding PETN residues in public
John Lloyd - Cross
places?
A. Yes.
Q. That has been subject to peer review; correct?
A. Yes.
Q. Now, PETN doesn't have the same qualities as nitroglycerin
and EGDN, does it?
A. That is correct.
Q. And PETN does not transfer through cardboard boxes, paper
bags, and onto clothing; correct?
A. That would depend upon how well the containing -- the
containers were sealed.
Q. Dr. Lloyd, are you aware of any studies that show PETN
migrating through cardboard boxes and paper bags?
A. No.
Q. So you have no evidence of that, do you?
A. That is correct.
Q. And in fact, the chemical or physical properties of PETN
show just the contrary, don't they? It's a hard, sticky
substance?
A. That is not correct. It depends upon the source of the
PETN. If it's from a plastic explosive such as Semtex, then
this is a sticky material and persists in that form.
If the PETN is from detonating cord, it is a finely
divided material which does spread very readily between items
and is transported as very small particles.
John Lloyd - Cross
Q. So if you had that powdery substance in the laboratory, it
would be easy to wipe away, wouldn't it, especially on the
surface of a bench or a metal surface as you've described?
Correct?
A. Yes, it would be -- well, I don't think it would be easy to
completely wipe away, because you must remember we're dealing
with such vanishingly small quantities of material that if you
attempt to wipe a surface free of an explosive, there is going
to be some left in crevices and so forth.
Q. But, Dr. Lloyd, you're telling us this is different from a
sticky substance that's in Semtex. You're saying it's the
powdery form?
A. That's correct.
Q. That's easy to get on yourself if you're cutting detonation
cord; correct?
A. Yes.
Q. And therefore easy to wipe off a hard surface; correct?
A. Well, it's easy to wipe the bulk off a hard surface, but it
would be very difficult to completely remove it from a surface.
You'd really need to use chemical cleaning to totally eliminate
it.
Q. So if Agent Burmeister washed his table with solvents and
cleaning solvents, that should be sufficient to wipe away any
chance of that powdery PETN being on his table; correct?
A. Yes, if it was efficiently cleaned in that way. Yes.
John Lloyd - Cross
Q. And are you aware that he did that in this case?
A. I understand that he did, yes.
Q. And you believe that's a sufficient or reasonable procedure
to take to avoid contamination; right?
A. Yes, so far as the surfaces upon which he would operate;
yes.
Q. And it's also reasonable to put down that disposable
butcher paper on the tables; correct?
A. It is.
Q. And if you follow the hypothetical that Mr. Tritico gave
you about Mr. Mills' placing down that disposable paper and
placing the box on it, you believe that the box could actually
have contaminated the disposable paper. Correct?
A. Yes, I do. Yes, I heard Mr. Mills in evidence state that
he placed the box upon the table.
Q. Now, when you say that, are you assuming that the PETN that
you think theoretically on the floor is sticky and therefore
grabbed the cardboard box, then got on the table and then stuck
to the butcher paper? Is that what you're telling the jury?
A. No, I'm not suggesting that it was necessarily sticky
material. It would have been picked up on the box just like
any other dust-like material could have been picked up.
Q. So you believe it could be this powdery substance?
A. A few particles of it, yes.
Q. And if it got on that disposable paper and Mr. Mills threw
John Lloyd - Cross
that paper away before he handled the next piece of evidence,
wouldn't be it unlikely that there would be contamination of
the remaining evidence that he was looking at?
A. That is right; though to me, it didn't seem clear that that
was the procedure that he followed.
Q. Well, were you here for Mr. Mills' testimony?
A. I was.
Q. And did you hear him say that he switched the butcher
paper?
A. I did. But he put the box on the table on top of the new
butcher tape -- excuse me -- on top of the new butcher paper,
as I understand it, prior to his emptying the box onto the
fresh butcher paper.
Q. You objected during Mr. Tritico's examination to Mr. Mills'
taking those pieces of Mr. McVeigh's clothing out of the paper
bags and putting them into individually sealed plastic bags,
didn't you?
A. I did.
Q. And wouldn't you agree that it's better for that evidence
to be in plastic bags that would protect it from any kind of
contamination?
A. Well, the plastic bags wouldn't have protected it from
contamination.
Q. From PETN?
A. It would have protected it from PETN, from any
John Lloyd - Cross
subsequent --
Q. Well, those are the residues that we're talking about on
the shirts and the pants; correct?
A. We are talking about nitroglycerine, too.
Q. We're focusing -- because we've explained that
nitroglycerine can come from other sources, we're focusing on
the PETN; correct?
A. Yes.
Q. And you're not aware of any reason or any research or
studies that show that PETN migrates through plastic bags, are
you?
A. That is correct.
Q. And if that clothing was seized from Mr. McVeigh at the
time of his arrest before anyone knew his connection to the
bombing, it wouldn't be unreasonable for the Noble County Jail
folks to put those clothes in a paper bag, would it?
A. It might be considered by them reasonable to put it in a
paper bag. It's not a reasonable way for handling evidence.
Q. Well, they didn't know it was evidence at the time, did
they?
A. They did not.
Q. So when the FBI lab got the materials back and they put
them in the plastic bag, isn't that consistent with what you
recommend as the best way to store evidence that may have
explosive residue on it?
John Lloyd - Cross
A. It seems to me to be just too late. I suppose that's
perhaps the best thing that could be done; but I understand it
was a normal, standard practice.
Q. Well, it's "too late." You're not aware of any information
that shows there was any actual contact with high explosives at
the Noble County Jail, are you?
A. I'm not aware of any contact, no.
Q. Quite the contrary. You heard the testimony in this case
about the lack of contact; correct?
A. I don't think you can make that assumption, because it's
equivalent to basing the whole of the detection of explosives
traces on conjecture and speculation that contamination could
not occur. That is not a matter which should be left to
speculation. It's far too important. It should be
demonstrated as far as possible experimentally by appropriate
monitoring procedures that contamination is not an issue. You
cannot assume that contamination could not have occurred and
assume that as a basis for your results. It is not adequate.
Q. Well, checking with the officials and reviewing records to
see whether there had been any high explosives in the area
would be a reasonable step, wouldn't it?
A. It might be of some help, but I don't really think it's the
answer to the problem.
Q. So there is no way, then, to eliminate the chance of
contamination for you, is there?
John Lloyd - Cross
A. Contamination can never be totally eliminated. I agree
with that.
Q. I want to ask you a few questions about the testing on the
clothes; and you told, I believe, Mr. Tritico that the three
different tests that were done on the shirts were not different
techniques. Is that correct?
A. They're different techniques, but they are dependent on
essentially the same characteristics of the substances that
were detected.
Q. Are you familiar with this fancy word that Dr. Whitehurst
and Mr. Burmeister have used called "orthogonal techniques"?
A. Yes, I am.
Q. And aren't these techniques orthogonal?
A. They're not.
Q. It's your testimony that the GC/Chem and the GCECD and the
MSCI are all the same based on the same scientific principle?
A. In many respects, they are, yes.
Q. In all respects?
A. In respects of the GC, they are. In terms of the
detectors, they're not. But the problem is that the detectors,
although they are different, are responding to the same
characteristic of the substance that is being detected.
They're detecting a nitrate ester, for example.
Q. Well, isn't the detector what gives you the identification,
not the gas chromatography, which just gives you the retention
John Lloyd - Cross
time? Correct?
A. I think both factors are important.
Q. Which one is more important, Dr. Lloyd? Isn't it the
detector and not the retention time?
A. That is incorrect. The detector -- for example, the mass
spectrometer: You're saying that it is more important or more
specific. It is not, because the mass spectrum of
nitroglycerin of EGDN and of PETN are all the same. So in that
case, it is clearly the gas chromatography which is important
to controlling specificity of the technique.
Q. Let's turn finally to Q507. You said you examined it and
saw no crystals; correct?
A. That is correct.
Q. Isn't it true that you just requested to examine Q507
shortly before the trial started?
A. That is correct. Well, I requested to see it some time
ago, but it only became available or practical --
Q. You weren't here in the United States; correct?
A. Pardon?
Q. You weren't here in the United States. You didn't make
yourself available to test it or look at it until recently;
correct?
A. I don't think that's a fair way of putting it at all. I
had requested to see it some time ago but; for various reasons
of practicality, I was only able to see it a few weeks ago.
John Lloyd - Cross
That is right.
Q. And you said that when Mr. Burmeister identified some of
the substances that were on Q507, the crystals and those
elements that we've identified, that there were two substances
that he could have been confusing. Is that correct?
A. I think we were talking about different products of
ammonium nitrate prills.
Q. Were you talking about the prills that came from
Mr. Nichols' house?
A. I was talking about the prills listed by the ICI. And
there are three -- three types of prills which would not have
been distinguishable as far as Q507 was concerned.
Q. All right. Well, let's leave Q507 and go to the prills at
Mr. Nichols' house. You said that you believe that
Mr. Burmeister could not identify those prills as being ICI
prills; correct?
A. Yes.
Q. And are you familiar with the formula for the ICI prill in
1994 from the Joplin, Missouri, plant?
A. I've been shown a tabulation.
Q. And is it your testimony that that is not a unique formula?
A. It is not unique so far as the particular elements are
concerned.
Q. Including the coating and the additives; is that what
you're saying?
John Lloyd - Cross
A. That's right. For example, one of the other prills
contains Kaolin. Well, this would be confusable with talc.
Q. So you're saying Agent Burmeister could not identify those
elements as being consistent with the recipe for the ICI
prills; is that correct?
A. So far as Q507 is concerned.
Q. I'm not talking about Q507. I'm sorry. I'm talking about
the prills at Mr. Nichols' house where we have the full prill,
the coating and the additive.
A. I would need to remind myself of the contents of the ICI
table.
Q. Okay. So there is a difference, then. When Agent
Burmeister testified, he could identify the prills, but all he
could say about Q507 was that the other elements were
consistent with ICI. And you wouldn't disagree with that,
would you?
A. I would agree that they could -- yes, they could be
consistent with ICI prills.
Q. And that's all he said in his testimony; correct?
A. I don't recall his precise words.
Q. Well, you reviewed his testimony, didn't you?
A. I did, yes.
Q. And the other elements that you said should be there, the
magnesium, would only be present if the coating was present on
Q507; correct? The magnesium is not present in the additive,
John Lloyd - Cross
is it?
A. I do remember in Mr. Burmeister's testimony that he did
refer to the coating of the prills and the elements that were
present in it.
Q. On Q507?
A. Yes.
Q. Well, let's assume that Agent Burmeister distinguished for
the jury between the crystals, saying there were certain
elements present that were consistent with the additive and not
with the coating because he didn't find the magnesium. Would
you agree with that?
A. I beg your pardon?
Q. If Agent Burmeister testified that he found elements which
were consistent with the additive -- that is, the element
that's added inside the prill -- but didn't find the magnesium
which you would find if you had the coating, that he can just
say that Q507 is consistent with the ICI prill formula?
A. But he did find silicon, and silicon is associated with the
magnesium, or one might have expected it to have been, so that
if silicon was present and the prill was from ICI, one would
have expected to see magnesium as well, because one would infer
from that --
Q. Even if those crystals were embodied in Q507 after an
explosion of ammonium nitrate prills?
A. I have some difficulty in following how it is now described
John Lloyd - Cross
as being "embedded," because when I referred to
Mr. Burmeister's notes, the crystals were referred to as a
glaze. There was --
Q. You're saying in his notes on Q507 it wasn't referred to as
embedded?
A. It was referred to as a glaze.
Q. Do you recall where that was in his notes?
A. I've got the page here, if you care to see it.
MS. WILKINSON: Your Honor, may I?
THE COURT: Yes.
MS. WILKINSON: Your Honor, may I have a moment,
please?
THE COURT: Yes, certainly.
BY MS. WILKINSON:
Q. Dr. Lloyd, did you examine the photographs that Agent
Burmeister took of Q507?
A. I did.
Q. And were you able to determine from those photographs
whether the crystals were embedded in the piece?
A. So far as I could determine, the crystals were not
embedded; but it was rather difficult to distinguish them on
the photographs.
Q. And if they had been a glaze on them, how would they have
stayed on the piece?
A. Well, they would have stuck to the surface.
John Lloyd - Cross
Q. And you could tell that from looking at the photograph?
A. Well, they were clearly on selected areas of the surface,
yes.
Q. But you couldn't tell whether they were actually embedded
into the plywood, could you?
A. Well, if they were embedded, they wouldn't have been easy
to see.
Q. Are you saying, then, that Mr. Burmeister couldn't have
seen them through the microscope?
A. Well, clearly, he saw them, yes.
Q. So if he testified that he saw them embedded into portions
of the plywood that had been blown apart, you wouldn't quarrel
with that, would you?
A. I don't know. It seems to me a contradiction of his notes,
so really I -- I can't comment any further on that.
Q. Well, let's go back to how the crystals got there. Let's
assume that it was a glaze of crystals. Is it consistent with
an explosive device made of ammonium nitrate prills to find
those crystals on a portion of the Ryder truck?
A. Is it consistent? No, it is not consistent. It's quite a
unique observation. And whether it is characteristic of the
alleged explosion or of any other effect, we can't tell. I
mean, if it's going to be used as evidence of an ammonium
nitrate bomb and that the thing is absolutely unique, which I
think is agreed, then one would require to see experiments to
John Lloyd - Cross
show that this was in fact a reproducible phenomenon.
Q. Doctor, I wasn't asking you if it's unique. I'm asking you
if it's consistent with an explosion.
A. I have no idea. It's impossible to say.
Q. So you don't agree that the finding of the elements and the
crystals is consistent with those ammonium nitrate crystals
coming from a prill?
A. I don't agree.
Q. So you don't think they got there -- there is no way they
got there from an explosion. Is that correct?
A. It's impossible to know. There are too many
inconsistencies.
Q. Well, you're either saying it's impossible, or it is
possible.
A. I'm saying I don't know. It's not possible to say.
Q. So you can't eliminate the possibility that those crystals
came there from an explosion, can you?
A. I cannot eliminate the possibility.
Q. Dr. Lloyd, you would not be surprised to find out that
Agent Burmeister and others did not find high-explosive residue
at the crime scene, would you?
A. It is not surprising that no residue was found.
Q. And in your experience, it's often typical in these type of
cases that no high-explosive residues are found at the bombing
crime scene; correct?
John Lloyd - Cross
A. Particularly with large explosions, yes.
Q. But despite that, it's still consistent with Mr. McVeigh
having built or had contact with explosives components to find
PETN on his clothing; correct?
MR. TRITICO: Your Honor, I'll object to the form of
that question.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Is it consistent, Dr. Lloyd, with Mr. McVeigh being in
contact with explosives to find PETN on his clothing?
A. No.
MR. TRITICO: Object to the form of that question,
also.
THE WITNESS: No.
THE COURT: Well, the objection is overruled. The
answer stands.
BY MS. WILKINSON:
Q. It's not consistent with?
A. Because there are so many other -- there are other possible
sources. I understand, for example, that he was involved in
the sale of surplus military equipment. As I have pointed out
to you, military personnel and their attachments and belongings
are subject to very high levels of contamination with PETN. I
mean, there is no way, it seems to me, of excluding that
possibility for the PETN on his clothing.
John Lloyd - Cross
Q. There is really no way of excluding any possibility, is
there, Dr. Lloyd?
A. That is correct.
MS. WILKINSON: No further questions.
THE COURT: Redirect.
MR. TRITICO: Yes, your Honor.
May I approach, Judge?
THE COURT: Yes.
REDIRECT EXAMINATION
BY MR. TRITICO:
Q. Dr. Lloyd, you've been handed what's been marked for
identification purposes as McVeigh Exhibit J317. Do you have
that?
A. Yes, I do.
Q. And is this the note from Special Agent Burmeister's
collection of notes that you were referring to regarding the
glaze of crystals on Q507?
A. That's correct.
Q. Is this the note that you relied upon in reaching your
conclusion that it was a glaze instead of them being embedded?
A. Yes. Well, I took it that this was what Mr. Burmeister had
observed.
MR. TRITICO: I'll offer McVeigh Exhibit J317, your
Honor.
MS. WILKINSON: No objection, your Honor.
John Lloyd - Redirect
THE COURT: Received, J317.
Do you wish to publish it?
MR. TRITICO: Yes, your Honor.
THE COURT: All right.
BY MR. TRITICO:
Q. This is kind of hard to read, but can you read the first
line from -- you can read it from the one you've got there,
Dr. Lloyd. Can you read the first line of McVeigh Exhibit
J317?
A. "Microscopic portion of wood," brackets, "[see photo],"
close brackets, "has glaze of crystals."
Q. You weren't making that up. You read that out of Agent
Burmeister's notes; right?
A. That's correct.
Q. Now, with respect to the fees that you're being paid in
this case, you don't work for free, do you?
A. That's correct.
Q. As your fees, the hourly rate that you're charging -- have
they been approved by this Court prior to the time that we
hired you?
MS. WILKINSON: Objection.
THE COURT: Overruled.
THE WITNESS: Yes, they have.
BY MR. TRITICO:
Q. Before you began your private -- well, let me ask you this:
John Lloyd - Redirect
Since you began your private consulting work, has any
prosecutor ever asked you for your help?
A. Yes. On occasions, I have had the inquiries, yes.
Q. And have you helped them when they asked?
A. So far as I could, yes.
Q. Now, prior to your retirement and beginning your private
consulting business, were you working for law enforcement
entities in Great Britain?
A. Yes.
Q. Which ones?
A. All of -- mainly the police forces within the Midlands of
England and -- but providing a national service in some
particular areas in which I had an expertise.
Q. How many years of your professional career did you spend
assisting law enforcement in their forensic investigations?
A. 25, 26 years.
Q. In the United Kingdom, is it true that several bombing
convictions have been reversed in the last 10 or 15 years for
faulty forensic work?
MS. WILKINSON: Objection, your Honor.
THE COURT: Overruled.
THE WITNESS: That is correct.
BY MR. TRITICO:
Q. Ms. Wilkinson took you through quite a few questions
regarding the contamination issues that you discussed and
John Lloyd - Redirect
talked to you about some specific testimony that you gave in
England about that. Do you recall that?
A. I do.
Q. Now, I thought I heard you say when you were trying to
explain your testimony in that case -- you said something about
the fire brigade.
A. Yes.
Q. What did you mean by that?
A. The issue was the fire brigade trying to put out a fire in
a gas holder, and they were spraying the area with hoses,
high-pressure hoses.
Q. You weren't talking about a garden hose?
A. I beg your pardon?
Q. You weren't talking about a garden hose?
A. That is correct.
Q. Was that the issue in that case regarding the contamination
or the lack of forensic evidence?
A. The issue that -- the issue that was raised was could
powdered PETN be washed off a metal surface by a hose; and, of
course, it can be very readily, but it certainly couldn't be
washed off of the hand by applying a hose to a hand.
Q. Now, you were trying to explain your answer about the
contamination issue in this specific case; and I'm sorry I
don't recall the name of this case that Ms. Wilkinson was
asking you about that she showed you the transcript from.
John Lloyd - Redirect
A. Yes, yes.
Q. You were attempting to explain the contamination issue in
that case and didn't get the opportunity. Why don't you take a
moment to explain the contamination issue that you raised in
this case.
A. There were two contamination issues at least: that first of
all, the people who examined the scene weren't wearing
protective clothing or not properly wearing it; that they went
from the scene to search the defendant's house, so that there
was a possibility of transfer, cross-transfer between the scene
and the house.
This was the issue; and as I was saying, it is now
subject to appeal.
Q. Now, we've talked quite a bit about contamination in the
last few days, and you've talked quite a bit about -- quite a
bit about it today. Why don't you take a moment to compare and
contrast the contamination controls that you have seen with
respect to the FBI Laboratory and their explosives residue
program and labs like the one where Linda Jones works. You've
been there, haven't you?
A. Yes, I have.
Q. Take a moment to compare and contrast the controls that are
taken between those two entities. Can you do that?
A. Well, the contrast is fairly complete. In Ms. Jones'
laboratory and in the Belfast laboratory, there is an
John Lloyd - Redirect
exclusion, a total exclusion, of anybody who has had recent
contact with explosives. The laboratories are subject to a
monitoring program, a weekly monitoring program, and a weekly
cleaning program.
If levels of contamination over the order of 10
nanograms are found, then there is a cleanup instituted almost
immediately; and if much higher levels are found, then the work
is stopped.
So it goes on.
Q. What you're telling me is they've set an upper limit on
background contamination and they won't allow their lab to get
beyond that; is that correct?
A. That's correct.
Q. And to do that, to have a program like that, you have to
regularly monitor that area to make sure that you haven't
exceeded your upper-level limit of background contamination.
Is that right?
A. That is quite correct.
Q. Would you expect that any quality forensic lab would do
that?
A. I would expect every quality forensic lab would have a
thorough cleaning and monitoring program.
Q. Ms. Wilkinson was asking you a moment ago about the car and
the testing that was performed on the car. Now, you understand
that Agent -- Special Agent Burmeister did that himself; right?
John Lloyd - Redirect
A. Yes.
Q. She was asking you if they did the searches and if there
was no residue found, it would show that they did a good job.
Right?
A. Yes.
Q. Do you recall that?
A. Yes.
Q. It also suggests that if they did the searches, no one ever
put any -- and they didn't find any, no one ever contaminated
that car with PETN, did they?
A. Yes.
Q. How long ago did you request first to examine Q507? Do you
recall?
A. It would be some time ago. As I said, I wished to see it.
I don't remember specifically when. October, perhaps,
November.
Q. If you know, was the answer always given that Q507 was
still at the FBI lab and couldn't be viewed by you?
A. I don't know what reasons were given.
Q. But your requests were denied. Is that right?
A. Yes.
Q. Would you have come from Great Britain to the United States
to view Q507 sooner if you had been allowed the opportunity by
the Government?
A. Yes, of course.
John Lloyd - Redirect
Q. What's a -- could the crystals on Q507 have been preserved
by the FBI?
A. Yes, they could have been, if the item had been kept in a
desiccator to save the crystals' picking up moisture. I would
assume that they have disappeared because they picked up
moisture from the atmosphere.
Q. What is a desiccator?
A. It's a large vessel, normally of glass, which contains a
substance within it which absorbs moisture.
Q. Did you hear or read actually Agent Burmeister's testimony
about why he didn't take any steps to preserve the crystals on
Q507?
A. I don't recall the reasons he gave.
Q. Do you recall his reason being that he was through
examining it, so it didn't matter anymore? Words to that
effect?
A. Yes.
Q. Is that sound forensic science, Dr. Lloyd?
A. No. It is a shame that crystals weren't preserved. I
would very much like to have been able to have the opportunity
to examine them.
Q. Would you have expected a quality forensic laboratory to
have preserved those crystals?
A. Well, I would have hoped that they would have done. I
mean, I don't know all the circumstances involved, but I think
John Lloyd - Redirect
they should have been preserved.
MR. TRITICO: May I have a moment, Judge?
THE COURT: Yes.
MR. TRITICO: Thank you, sir.
I pass the witness, your Honor.
THE COURT: Do you have any follow-up?
MS. WILKINSON: No, your Honor.
THE COURT: Okay.
MR. TRITICO: May he be excused?
THE COURT: Any objection to excusing the witness?
MS. WILKINSON: No, your Honor.
THE COURT: You may step down. You're excused.
THE WITNESS: Thank you.
THE COURT: Next?
MR. NIGH: Your Honor, may we approach?
THE COURT: Yes.
(At the bench:)
(Bench Conference 117B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
THE COURT: Next witness?
MR. NIGH: Marion Laird, your Honor.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Marion Laird affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Marion Day Laird, L-A-I-R-D.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Mr. Nigh.
MR. NIGH: Thank you, your Honor.
DIRECT EXAMINATION
BY MR. NIGH:
Q. Good afternoon, Ms. Laird. You're going to have to speak
up so that everyone can hear you. There is a microphone there.
If you'll lean forward into it, we'll be better able to hear
you.
A. Okay.
Q. Where do you currently live, Ms. Laird? What city?
A. Burlingame, California.
Q. Is that pretty close to San Francisco?
A. Yes.
Q. How long have you lived in Burlingame?
Marion Laird - Direct
A. Almost two years.
Q. And before moving to Burlingame, did you live in Kingman,
Arizona?
A. Yes.
Q. All right. Did you first live in -- move to Kingman when
you were in the eighth grade?
A. Yes.
Q. And did you attend high school in Kingman, Arizona?
A. Yes.
Q. And graduate there in 1990?
A. Yes.
Q. While you were in school in Kingman, did you know Michael
Fortier?
A. While I was in school?
Q. Yes.
A. No.
Q. Did you know Lori Fortier?
A. Yes.
Q. Was she an acquaintance of yours during your school years?
A. Yes.
Q. I'm sorry, Ms. Laird. I forgot to ask you. In Burlingame,
are you studying for a profession right now?
A. Yes.
Q. What --
A. I'm studying to be a registered nurse.
Marion Laird - Direct
Q. How much more school do you have to go?
A. I've got two more years on a bachelor's degree.
Q. All right. Okay. Now let's go back to Kingman. Was Lori
Fortier a close friend of yours while you were in school, or
just an acquaintance?
A. No. I -- I knew her as an acquaintance.
Q. All right. After school, did you continue to live in
Kingman?
A. Yes.
Q. And during that period of time, did you marry Robert Long?
A. Yes.
Q. Did you have two children as a result of that marriage?
A. Yes.
Q. Now, if I could, I'd like to direct your attention to the
spring of 1995. Are you familiar with that period in time?
A. Yes.
Q. During that period, did you -- did your relationship with
the Fortiers change?
A. Yes.
Q. In what way did it change? In other words, did you become
closer to them, or was it more distance -- distant than it had
been in the past?
A. We became a little more than occasional acquaintances. We
went to their house about two to three days out of a week. We
saw them a lot more frequently and --
Marion Laird - Direct
Q. Than you had before this --
A. Right. We were merely acquaintances before.
Q. Was that primarily your husband, Robert's initiation?
A. Yes.
Q. Because he was friends with Michael Fortier?
A. Yes.
Q. Did you also have a child that was the same age as the
Fortiers' child?
A. Yes.
Q. Did that have a factor in the amount of time that you spent
with the Fortiers?
A. Yes, it did.
Q. During that period of time in the spring of 1995, did you
spend quite a bit of time at the Fortiers' residence?
A. Yes.
Q. Would you watch movies and play games and do things like
that --
A. Yes.
Q. -- when you were at the Fortiers'?
A. Yes.
Q. Now, I want to direct your attention to the night of
April 18, 1995.
A. Okay.
Q. Are you familiar with that time period?
A. Yes.
Marion Laird - Direct
Q. Where were you that night?
A. We were at Mike and Lori's house.
Q. Do you remember what time you arrived approximately?
A. Be during -- around noon or a little bit earlier on the
18th.
Q. How long did you stay that day?
A. We stayed about all day there and into the night, and then
we left -- we stayed there until about 1:00 in the morning.
Q. So over 12 hours --
A. Yeah, we spent the day there and --
Q. At 1 a.m., did you go home to your own house?
A. Yes.
Q. Did you return to the Fortiers' during the morning of the
19th?
A. Yes.
Q. Approximately what time did you arrive?
A. Between 8 and 9.
Q. All right.
A. Well, I'm not really positive on the hour. It was in the
morning.
Q. While you and Robert had been gone from the Fortiers', did
you hear anything on the news about the Oklahoma City bombing?
A. Yes.
Q. And when you got to the Fortiers', did you discuss that
with Michael and Lori Fortier?
Marion Laird - Direct
A. Yes.
Q. Did Michael and Lori Fortier react the same to the news of
the bombing as you and Robert did, or did they react
differently?
A. They acted the same. They didn't act any differently that
I would notice.
Q. All right. Did they say anything about having any
knowledge of any participants in the Oklahoma City bombing?
A. No.
Q. That morning of April 19, 1995, were you all watching
television there in the Fortiers' residence concerning the
Oklahoma City bombing?
A. Yes.
Q. Were they acting any differently that morning than you had
seen them act over the course of the past several months that
you had been spending quite a bit of time with them?
A. No.
Q. Did either Michael or Lori Fortier appear nervous?
A. No.
Q. About the Oklahoma City bombing?
A. No.
Q. During the rest of that day, did either of them make any
statements about having any knowledge of who would be
responsible for the Oklahoma City bombing?
A. No.
Marion Laird - Direct
Q. Did you see them after that?
A. After?
Q. After April 19 of 1995?
A. Yes.
Q. And during those occasions that you saw them after that,
did they say anything about having any knowledge?
A. No.
Q. Were -- did they appear nervous about the situation?
A. No.
Q. Even after Mr. McVeigh was arrested, did their attitude
change, or did they appear nervous?
A. No.
Q. Did you attend a barbecue on May 8 of 1995?
A. Yes.
Q. And where was the barbecue held?
A. At Mike and Lori's house.
Q. Michael and Lori Fortier's?
A. Yes.
Q. How did that barbecue come about?
A. It was decided that we would all have a big barbecue.
Q. Who decided?
A. Mike and Robert and Lori, and I agreed. It sounded like a
good idea.
Q. When you say Michael, you mean Michael Fortier?
A. Yes. I'm sorry, yes.
Marion Laird - Direct
Q. And Robert, your husband?
A. Yes, and Lori.
Q. And where was the barbecue held?
A. At Mike and Lori Fortier's house.
Q. Was there any discussion about why to have a barbecue?
A. To have fun. It would be a good idea.
Q. Was it in reference to the FBI or the media?
A. Well --
MR. HARTZLER: Judge, I have to object to the hearsay,
if they're offering it for the truth.
THE COURT: Hearsay?
MR. HARTZLER: And relevance.
THE COURT: Overruled.
THE WITNESS: I'm sorry. Can you ask me again.
BY MR. NIGH:
Q. Sure. Was anything said about the reason for the barbecue
involving the FBI or the media?
A. Well, we thought we'd have a good time, basically because
we had been buzzed so much by the FBI -- and CNN had been
there -- and thought -- we'd have a good time and not be
worried about what was going on and be like -- kind of like a
joke, because we were having a good time.
Q. Did Michael and Lori Fortier express those same sentiments?
A. Yeah; that they would have -- we would have -- it was
just -- it was just planned to be a good time, to have the kids
Marion Laird - Direct
together, have a barbecue, have friends over, enjoy and relax.
Q. Did Michael or Lori Fortier say anything about being
concerned about having any knowledge of the Oklahoma City
bombing?
A. No.
Q. Are you familiar with the way Michael and Lori Fortier
looked during the spring of 1995?
A. Yes.
Q. Let me show just you, if I may, what's been marked for
identification as Defendant's Exhibit P165. Do you recognize
the person depicted in that photograph?
A. Yes.
Q. And is that a picture of Michael Fortier?
A. Yes.
Q. Is his appearance there consistent with his appearance
during the spring of 1995?
A. Yes.
MR. NIGH: Your Honor, I'd move for the admission of
P165.
MR. HARTZLER: I didn't understand. This was -- this
is a photo from the spring of 1995?
THE COURT: How he looked in the spring of 1950 -- or
'95.
MR. HARTZLER: I have no objection.
THE COURT: Received. You may publish it.
Marion Laird - Direct
MR. NIGH: Thank you, your Honor.
BY MR. NIGH:
Q. During the course of spring of 1995, did Mr. Fortier
sometimes wear his beard in a goatee and sometimes in a full
beard?
A. Yes.
Q. As is depicted in this exhibit?
A. Yes.
Q. Were you also familiar with Lori Fortier's appearance
during the spring of 1995?
A. Yes.
Q. Let me show just you, if I may, what has been marked for
identification as P166. Do you recognize the person depicted
in that photograph?
A. Yes.
Q. Is that a picture of Lori Fortier?
A. Yes.
Q. Is that picture consistent with her appearance during the
spring of 1995 when she was dressed up?
A. Yes.
MR. NIGH: Your Honor, I'd move for the admission of
P166.
MR. HARTZLER: No objection.
THE COURT: Received. It may be displayed.
MR. NIGH: Thank you.
Marion Laird - Direct
BY MR. NIGH:
Q. Ms. Laird, during the entire course of the spring of 1995,
particularly after April 19 and after Mr. McVeigh's arrest, did
either Michael or Lori Fortier give any indication to you that
they had any knowledge of the Oklahoma City bombing whatsoever?
A. No.
MR. NIGH: That's all I have, your Honor.
THE COURT: Do you have any questions?
MR. HARTZLER: A few.
THE COURT: All right.
With the jury's permission, we'll go ahead and
complete this witness' testimony.
MR. HARTZLER: They're not going to vote on it right
now?
THE COURT: You don't get a vote.
CROSS-EXAMINATION
BY MR. HARTZLER:
Q. Pardon me.
Ms. Laird, we've never had the privilege of meeting;
is that right?
A. No.
Q. Okay. This time that you were in Kingman after the bombing
was a fairly tense time. Is that not fair?
A. I'm sorry. Repeat.
Q. After the Oklahoma City bombing, would you not say that the
Marion Laird - Cross
period of time for the next couple of weeks was a pretty tense
time in Kingman, Arizona?
A. For myself, I know it was.
Q. I mean for yourself and for the Fortiers, there was a lot
of contact with law enforcement. Is that not true?
A. I can't speak for Mike and Lori; but as far as my household
went, yes.
Q. I mean, just in terms of the party that you guys ultimately
had, there was a fair amount of tension in the air because the
FBI was contacting people pretty regularly. There were a lot
of agents in Kingman. Is that not fair?
A. Yes.
Q. And they were contacting you regularly and the Fortiers
were complaining about being contacted themselves.
A. Yes.
Q. Okay. And you said that on the morning after the bombing,
you went over to the Fortiers' household and you had been there
the previous day. Is that right?
A. Yes.
Q. You were watching the bombing and that was on full-time.
Correct?
A. Yes.
Q. You remember you were watching CNN. Is that right?
A. I can't remember specifically. I think it was on almost
every channel.
Marion Laird - Cross
Q. It was on full-time, though, on CNN. Do you recall that?
A. No.
Q. You don't remember what channel you were watching. Is that
right?
A. Right.
Q. Okay. And you don't recall what time you arrived?
A. No, I don't.
Q. But do you remember the previous evening playing cards with
the Fortiers?
A. Yes.
Q. And you played cards with them fairly regularly?
A. Well, fairly.
Q. You remember one time when Mr. McVeigh sat in and took a
hand for Michael Fortier? Did he ever come over there while
you were playing cards?
A. No.
Q. Have you ever met Mr. McVeigh?
A. No.
Q. You've never met him?
A. No.
Q. Okay. He never came to the Fortiers' house when you were
there?
A. No.
Q. You never saw him in the Kingman area?
A. No.
Marion Laird - Cross
Q. Throughout the spring of 1995, you never saw Timothy
McVeigh?
A. No.
Q. The Fortiers' appearance, or at least Michael's appearance
changed fairly regularly. I mean he could clean himself up; is
that not fair?
A. Yes.
Q. For his wedding, for example, and other times he would
shave his beard?
A. Yes.
Q. Okay. But he could look pretty grungy. Is that not also
fair?
A. Yes.
Q. And the picture that we saw here made him look pretty
grungy?
A. Yes.
MR. HARTZLER: I don't think I have anything further.
Could you give me one moment, your Honor?
THE COURT: Yes.
BY MR. HARTZLER:
Q. Do you recall visiting the house in March of 1995?
A. Yes.
Q. Do you recall when Mr. Fortier was in the hospital in
Prescott?
A. No.
Marion Laird - Cross
Q. So you never visited when Mr. Fortier wasn't there?
A. I'm sorry. I don't understand.
Q. You have no recollection of him going to the VA Hospital in
March of 1995?
A. I don't remember if he did or not. I didn't pay attention
to their affairs regarding that.
Q. And you never knew someone was living in the front bedroom
during this entire time?
A. No.
MR. HARTZLER: Thank you. I have nothing further.
THE COURT: Any other questions?
MR. NIGH: No, your Honor.
THE COURT: The witness excused?
MR. NIGH: Yes, please.
THE COURT: Agreed?
MR. HARTZLER: Thank you.
THE COURT: You may step down. You're excused.
Members of the jury, we appreciate your assumed
willingness to work a little bit overtime; and we, of course,
excuse you now until 9:00 tomorrow morning.
And again, of course, I must caution you: Trial is
not complete. You've not heard all of the testimony you're
going to hear or have seen all of the exhibits; and of course
arguments and instructions are a part of the case as well. So
please continue to keep open minds, avoid discussion of the
case with all other persons, and be very careful about the
things that you read, see, and hear to avoid anything that
could influence your judgment in this case, knowing that your
decisions will be based on the law and the evidence presented
to you in the course of the trial.
You're excused till 9:00 tomorrow morning.
(Jury out at 5:07 p.m.)
MR. JONES: Your Honor, may we approach the bench.
(At the bench:)
(Bench Conference 117B2 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
THE COURT: Now, you have a witness that I need to
talk to her.
MR. NIGH: That's right, your Honor. Debbie Brown.
THE COURT: What's her name?
MR. NIGH: Debbie Brown.
THE COURT: Thank you.
I guess she left the witness room but should be back.
Let's take up the matter of the FBI Laboratory report.
That is from the Office of the Inspector General, a report that
was -- is dated April, 1997.
MR. JONES: Your Honor, if the Court please, defendant
moves to introduce as evidence in this case the report of the
Inspector General of the FBI Laboratory, which has been marked
J403, McVeigh Defendant Exhibit 403, and on the basis that the
entire Inspector General's report has to do with the three
units of the laboratory that are at issue in this case. And
it's offered to impeach the representations, testimony, and
work of those units.
THE COURT: Ms. Wilkinson, are you going to speak to
this?
MS. WILKINSON: Yes, your Honor.
THE COURT: All right. I have the J403 and have
reviewed it, I would say, generally; but I have focused
principally on Section G, which appears from pages 217 through
256.
No. That's not true.
I believe it ends at 243.
MS. WILKINSON: That's right, your Honor.
THE COURT: All right.
MS. WILKINSON: Obviously, we'd object to the entire
report being introduced based on relevance. There are many
other cases discussed in this report, as your Honor knows;
other examiners that were --
THE COURT: Yes.
MS. WILKINSON: -- witnesses in this case, so I think
I should focus the discussion on Section G.
THE COURT: Yes.
MS. WILKINSON: Section G in large part deals with
Mr. Williams and the report that he wrote, which has not been
introduced in evidence. He hasn't testified as an expert, and
his conclusions as to the type of device, the velocity of
detonations, have not been an issue in this case. Clearly,
those sections would not be relevant.
The other sections deal with Mr. Thurman's review of
Agent Williams' report. Again, because that report isn't in
evidence and Agent Thurman hasn't been a witness, those
sections would not be relevant to the case.
And the only remaining section, I believe, would be
Mr. Martz' examination of the evidence, which noted his failure
to do a microscopic examination before he did the vacuuming.
I don't believe that's been raised as an issue in the
case. It wasn't elicited from any of the witnesses; and I
believe if Agent Burmeister testified, he wouldn't deny that.
He would give an explanation, but he wouldn't deny that Agent
Martz did not conduct a microscopic examination before he
conducted the vacuuming of certain samples.
So I don't believe there is anything in this section
of the report that's relevant to the testimony the jury has
heard.
THE COURT: Well, it seems to me, though, that Roman
IV on page 239 over to Roman V, "Conclusion," on page 242 do
relate to the work done by Mr. Martz prior to, as I understand
the testimony -- prior to the exhibit going to
Mr. Burmeister -- I mean the -- not the exhibits but the
items --
MS. WILKINSON: That's true.
THE COURT: -- of clothing.
MS. WILKINSON: In large part, I believe -- and let me
look specifically at the statements -- I believe they were
talking about testing of the knife, which we have specifically
not introduced. As you know, there was a finding of PETN on
the knife by Agent Martz. It wasn't confirmed by Agent
Burmeister for a variety of reasons, and we have not introduced
that because we wanted to only introduce Mr. Burmeister's
conclusions. If this is entered into evidence, we would, of
course, want to call Agent Burmeister to explain that on
rebuttal. I'm not sure that's something the defense wants to
elicit.
THE COURT: All right. Mr. Jones, I am agreeing with
the Government, excepting for this Martz' examination of
evidence section. It seems to me that can have relevance to
the case in view of his having handled this -- these matters --
the clothing.
MR. JONES: Yes.
THE COURT: Now, the knife, of course, has not been
testified to.
MR. JONES: Your Honor, may we in view of what your
Honor's announcement of the pages that you're considering --
may we have the opportunity to review this overnight and see if
we want to offer just these pages?
THE COURT: Yes.
MR. JONES: Yes.
THE COURT: By the proffer with respect to the -- all
other parts of the report, I'm ruling, are -- that it's -- the
rest of the report is irrelevant.
MR. JONES: I understand.
THE COURT: Will you advise Government counsel;
because as I understand it from Ms. Wilkinson, she would line
up Agent Burmeister to testify in rebuttal, if this comes in.
MR. JONES: Yes, of course.
THE COURT: All right.
MS. WILKINSON: Thank you.
MR. TRITICO: Your Honor, may I be heard for a moment?
THE COURT: On what subject?
MR. TRITICO: On this subject with respect to Agent
Williams and his testimony today.
THE COURT: No. I've ruled.
MR. TRITICO: Okay.
THE COURT: Bring in this witness.
You can just sit down here to have a place to sit.
DEBBIE BROWN: All right.
THE COURT: You don't see a jury in the box, and we're
not in trial as such right now; but it's -- you're Debbie
Brown.
DEBBIE BROWN: Yes.
THE COURT: I've been informed that you've been
called, or that the defense intends to call you as a witness in
this case to testify with respect to your relationships and
contacts with Lori and Michael Fortier.
DEBBIE BROWN: Yes.
THE COURT: Is that your understanding?
DEBBIE BROWN: Yes.
THE COURT: And I've also been told that in connection
with your contacts with those persons, there may be things
which could expose you to a possible prosecution in connection
with controlled substances.
DEBBIE BROWN: Yes.
THE COURT: You understand that?
DEBBIE BROWN: Yes.
THE COURT: Now, I don't know the exact questions that
are going to be asked of you. The reason that I asked that you
come in here before you're called as a witness is to make sure
you understand your rights under the Constitution of the United
States. It's my obligation, of course, to make sure that all
persons appearing in this court in whatever role, witnesses
included, have their constitutional rights protected. And you
have a right to refuse to answer questions if the answers to
those questions could incriminate you, as we say, but what we
mean is expose you to the possibility of being prosecuted for
some crime based on what you say in truthful testimony.
You understand what I'm saying?
DEBBIE BROWN: Yes.
THE COURT: Now, that doesn't just mean that you come
out and say, I committed a crime. It also means that if that
information tied up with any other information that might be
available to prosecutors, it could result in somebody charging
you with some crime; so it's directly or indirectly.
Do you follow my explanation?
DEBBIE BROWN: Yes.
THE COURT: And of course, there are also two levels
of government that deal with prosecutions for violation of drug
laws, controlled substance: state authorities -- and I guess in
this case you're be -- going to be asked about things in
Arizona.
DEBBIE BROWN: Yes.
THE COURT: And federal law, dealing also with
controlled substance; so there are two governments, in a way,
that could be interested in your testimony and do something
about it, contrary to your interest. Do you understand?
DEBBIE BROWN: Yes.
THE COURT: Now, given that, one of the other things
we need to know is whether if you are -- if you are called as a
witness and asked these questions, you wish to invoke the Fifth
Amendment. That's the privilege I'm talking about.
DEBBIE BROWN: I just recently found out about that.
I'm testifying tomorrow. Is that correct?
THE COURT: Yes. But we could have you talk to a
lawyer before that.
DEBBIE BROWN: I would like that.
THE COURT: All right. We'll get a lawyer to see you
between now and 9:00 tomorrow morning so that you can consult
with that lawyer and then let --
Mr. Nigh, are you the one who is calling her?
MR. NIGH: Yes, your Honor.
THE COURT: Let Mr. Nigh know, because we also do
not -- and the reason we're doing this outside of the presence
of the jury is that we don't want to have this situation arise
where you feel the need to invoke your constitutional
protection with the jury present because that has implications
that we want to avoid.
Okay. We'll get a lawyer to talk with you.
DEBBIE BROWN: Okay. Thank you.
THE COURT: And then you talk to Mr. Nigh.
DEBBIE BROWN: Okay.
THE COURT: Okay. We'll be in recess, 9:00.
(Recess at 5:20 p.m.)
* * * * *
INDEX
Item Page
WITNESSES
Frederic Whitehurst
Cross-examination Continued by Ms. Wilkinson 10936
Redirect Examination by Mr. Tritico
John Lloyd
Direct Examination by Mr. Tritico
Cross-examination by Ms. Wilkinson
Redirect Examination by Mr. Tritico
Marion Laird
Direct Examination by Mr. Nigh
Cross-examination by Mr. Hartzler
DEFENDANT'S EXHIBITS
Exhibit Offered Received Refused Reserved Withdrawn
J317 11064 11065
J403 11099
P165 11086 11086
P166 11087 11087
* * * * *
REPORTERS' CERTIFICATE
We certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 27th day of May, 1997.
_______________________________
Paul Zuckerman
_______________________________
Kara Spitler