DNA, Update
Here is a draft of my latest findings on DNA. I invite comments and suggestions:
Chapter 16
Emergence of DNA as a forensic tool
One of the primary dynamics fueling the resurgence of the Cooper case has been the widespread use of DNA to evaluate suspects. Developed initially in the 1980s, DNA analysis was in full swing by the late 1990s, and with it came the ability to trump Cooper’s careful efforts to mask his identity. In essence, DNA testing has re-opened the case, and the FBI has re-examined its top Cooper suspects.
However, the DNA in Norjak is suspect, as not all sources of DNA are equal. Apparently, the best samples come from bodily fluids, such as saliva, which should be available from the eight cigarette butts retrieved in Reno. Next are skin tissues, such as epithelial cells. Last are hair samples, which were reported obtained from the head-rest cloth of seat 18-E. However, it is unknown if any hair samples have been tested for DNA.
But finding appropriate physical samples to be sources for Cooper's DNA is problematic. Carr confirmed that the eight cigarette butts are now missing. In addition, Carr has acknowledged that he and the Seattle FO never had possession of them, and that the cigarettes had been stored in the Las Vegas FO. Why Carr and other Norjak case agents in Seattle did not have absolute authority to gather all pertinent evidence from all FBI field offices has never been explained. Nevertheless, the best source for DB Cooper's DNA is now officially missing.
But, were they ever tested for DNA? Carr posted a cryptic message at the DropZone on December 18, 2007 that suggests they might have been. Carr stated that the FBI had possession of the cigarettes for at least a period of time and had “processed” them. Does that mean analyzed? Carr isn't available to clarify this, but his post at the DZ was in response to a question from 377 and Smokin99 about the fate of the cigarette butts:
“Still looking for the cigarettes, after they were processed in the lab they were sent back to the field. So they are somewhere between Washington,DC and Seattle or disposed of.”
Nevertheless in 2008, Cooper case agent Larry Carr told me that epithelial cells found on the clasp of the clip-on tie were being used to extract the DNA to compare Cooper suspects. Carr also acknowledged that the skin samples on the clasp could be DB Cooper’s, or any number of people who have handled the tie since the recovery in Reno.
“The DNA could be Cooper’s, or not,” Carr told me, acknowledging the unreliably of this sample. In fact, Carr posted the disturbing truth at the DZ on December 13, 2007, “Yes, there were multiple male donors on the tie.”
Adding more concern to the chain of custody issue of whose epithelial cells are on the clasp, the tie was four days late to Seattle, held somewhere by somebody over the Thanksgiving holiday weekend. The leading suspect for this gaff is Las Vegas SAC Red Campbell, who led the evidence retrieval team in Reno.
Carr also told me that the DNA sample the FBI had from the epithelial cells was a “partial,” and could only be used to rule-out suspects, not necessarily prove DB Cooper's identity. This element of “partiality” remains a controversial aspect of Norjak. Specifically, how partial is the sample, and what are the exact limitations of the sample?
Additionally, the information from the Formans puts this dilemma into an even darker light—the best DNA samples went missing just as their contributions were called upon to solve the case. The Formans also say the FBI did have the Reno cigarette butts, based upon a TV news broadcast they viewed in 2001 or 2202, which described how the FBI had profiled Cooper’s DNA derived from dried saliva. The Formans say they learned this from the NBC Seattle affiliate, KING-5 nightly news, reportedly delivered by Dennis Bounds, their longtime news anchor. Here is one of several emails the Formans sent to me on this subject:
“The KING 5 news story we heard was before 2003. We both remember Dennis Bounds reporting that the FBI now had DNA from the Raleigh cigarettes. We remember it because we were excited that we could finally prove that Barb was Cooper. Barb was still alive at the time. We also saw articles back then about the FBI doing comparisons to the DNA from the Raleigh cigarettes.
“We apparently missed the 2003 story that the cigarettes were lost and there was a partial from the tie. We found out about that much after 2003.”
To confirm the Formans' story I enlisted the help of “Linda” at KING TV, who searched the stations' archives. She found nothing on the cigarette butts, but recommended that I also contact KIRO TV, as the two stations are often confused for each other. Hence, I spoke with a “Sharon” at KIRO, who diligently searched her archives but could only access back to 2004.
I also contacted Chris Ingalls, a long-time KING TV news reporter who has covered the DB Cooper case in-depth. He graciously responded to my request for clarification on what he knew about Norjak DNA:
“I’ve spoken with Dennis Bounds. He’s our main news anchor, and he has not produced any DB Cooper stories. However, he introduced several of the stories that I reported – so that may be where the confusion lies.
“The bottom line is that we have not reported that saliva was taken from the cigarette butts. In 2003, I reported that a weak sample of DNA was retrieved from Cooper and it was now considered somewhat usable for ruling out a suspect. In 2007, I reported that Agent Carr said that this DNA came from the tie clasp and tie clip recovered on the plane.
“I don’t know that I ever reported it – but I have been told by at least a couple of FBI agents that the cigarette butts were lost at some point.”
Yet, the possibility of TV broadcast on DNA from cigarette butts suggests that the FBI had developed a press release to assist journalists in developing their story.
Further, the Formans heard the broadcast just as they were beginning the research on their Barb Dayton book, so they fully expected that the documentation would be available to them as investigators. Hence, they were shocked in 2006 when Special Agent Jeremy Blauser told them that it wasn’t, which suggests that the possible documentation on the cigarette saliva DNA tests is also missing.
I sought the assistance of Seattle PIO Ayn Dietrich-Williams in locating any FBI press releases that could confirm the testing of saliva from the cigarettes. However, her answer not only set new levels for opaqueness, she officially slammed the door on any future efforts to assist open-sourced journalists investigating Norjak:
“ I’m sorry to disappoint you, yet again, but it would not be appropriate at this time for me to provide details about the investigation. As you are aware, there was a time when the FBI’s Seattle Division answered media questions and proactively sought coverage. At that time, the FBI thought it might be beneficial to the investigation to share information publicly.
“The FBI’s (current) media policy prohibits discussing ongoing investigations unless a release is specifically thought to have potential benefit to the investigation. Following further investigative efforts, the FBI in the fall of 2011 determined that media coverage of the case was more detrimental than helpful. We’ve found that media coverage generates considerable new interest, which is not proportional to where we are in allocating resources to this investigation.
“I understand your continued interest in our investigation and apologize that I will not be able to share additional information to answer your questions.”
So, the cigarettes remain a mystery, and apparently will remain so until a breakthrough occurs at the FBI. But related questions linger: is anyone looking for the cigarette butts, and if not, why not? Plus, where is the paper work that surely was developed when the cigarette butts were tested? In effect, we have two major missing pieces of evidence—the cigarette butts and its documentation.
Fortunately, these inquiries have given us confirmation that Larry Carr told another news reporter the FBI had obtained DNA samples from the tie and clasp, and those elements are sufficient for the FBI to advance the hunt for DB Cooper.
Unfortunately, these investigatory kerfuffles exist in a larger environment of questionable practices at the FBI's Forensic Science Research and Training Center in Quantico, Virginia and its crime lab at its Washington, DC headquarters.
In the mid-1990s, the FBI's National Crime Laboratory (NCL) was subjected to an 18-month investigation by the Inspector General of the Department of Justice, triggered by a decade's worth of allegations and persistent whistleblowing by one of the NCL's former supervising agents, Dr. Frederic Whitehurst.
Beginning in 1986, Whitehurst charged that the NCL was compromised by corruption, incompetence, and conflicts of interest—most notably the hiring of special agents without scientific degrees to do lab investigations, thereby insuring a prosecutorial bias. At its worst, though, Whitehurst charged that the lab had falsified, altered or suppressed evidence in thousands of case.
In April 1997, the Inspector General released a 517-page report of its investigation, and according to the New York Times it confirmed Whitehurst's assertions of “testimonial errors, substandard analytical work and poor practices at the lab's chemistry-toxicology, explosives and material analysis units.”
But it found no criminal wrongdoing. Nevertheless, an oversight panel recommended forty changes for the laboratory. Since the IG's report only examined three of the FBI's 21 lab divisions and confined itself primarily to Dr. Whitehurst's allegations, the US Congress launched its own investigation: "A Review of the FBI Laboratory: Beyond the Inspector General's Report."
The findings are shocking. Decades later, convictions are reportedly still being overturned due to the evidentiary errors revealed by this process. The Atlantic Magazine published a review of the Washington Post's investigation of the IG's findings, stating:
"Nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000," the newspaper reported, adding that 'the cases include those of 32 defendants sentenced to death.'
"The article notes that the admissions from the FBI and Department of Justice 'confirm long-suspected problems with subjective, pattern-based forensic techniques—like hair and bite-mark comparisons—that have contributed to wrongful convictions in more than one-quarter of 329 DNA-exoneration cases since 1989.'"
PBS-TV broadcast a special documentary on these travesties, and the chief producer, John F Kelly, in conjunction with Phillip K Wearne, wrote a book about his discoveries: Tainting Evidence—Inside the Scandals at the FBI's Crime Lab. Below is one example of how egregious an FBI agent performed at the National Crime Lab—the infamous Special Agent Thomas N Curran:
“In February 1975, an internal FBI investigation into the activities of Special Agent Thomas N. Curran, an examiner in the FBI lab's serology unit, revealed a staggering record of perjury, incompetence and falsification.
“At the trial of Thomas Doepel for rape and murder in Washington, D.C. in 1974, Curran testified under oath that he had a bachelor and masters degree in science, that both Doepel and the victim were blood type O and that the defendant's shorts bore a single bloodstain. In reality, Curran had no degree in anything; Doepel, on re-testing, turned out to be blood type B; and the shorts evidenced two, not one blood stain.”
Further, Kelly and Wearne show that these kinds of problems at the Crime Lab were widespread and ignored by supervisors:
“Curran's aberrations...were systemic. Curran had issued reports of blood analyses when "no laboratory tests were done"; had relied on presumptive tests to draw up confirmatory results and written up inadequate and deceptive lab reports, ignoring or distorting tests results.
“'The real issue is that he chose to ignore the virtue of integrity and to lie when asked if specific tests were conducted,' concluded Cochran's report to the then head of the FBI laboratory, Dr. Briggs White.
“It was an early warning of what could happen at the FBI lab. Tom Curran turned out to have lied repeatedly under oath about his credentials and his reports were persistently deceptive, yet no one, FBI lab management, defense lawyers, judges, had noticed. When they did, there was no prosecution for perjury.”
Kelly and Wearne also reveal that the biggest and most persistent problem at the FBI's crime lab has been documentation. Perhaps it's the culture of cops working as forensic scientists and focused on convictions rather than truth. Nevertheless, it has a direct connection to the on-going issue with the cigarette butts and DB Cooper's DNA. Kelly and Wearne state:
“Documentation is a case in point. Examiners have proved remarkably loath to write up their bench notes in any adequate scientific manner. No names, no chain of custody history, no testing chronology, no details of supervisory oversight, no confirmatory tests, no signatures—such omissions are quite normal in FBI lab reports.
“What they do contain is obfuscation and overstated conclusions written in an often-incomprehensible style that some experts have termed 'forensonics.' Terms like 'match' or 'consistent with' are common; chronicled scientific procedures and protocols to justify them are not.”
Another issue that Kelly and Wearne address is the insufficient effort given by the FBI to preserve its evidence, and a systemwide failure to insure adequate protection of the rights of the accused, including irresponsible inaction by the Supreme Court.
“An obligation to preserve evidence would seem to be at the heart of the Brady decision, (the ruling by the Supreme Court that a defendant has the right to evidence that can show their innocence.) If evidence, specimens, reports, or bench notes are destroyed or discarded, how can anyone determine what was exculpatory? But on two separate occasions the Supreme Court has declined to interpret the Brady ruling as including a duty to preserve evidence. Startling amounts of evidence – bullets, blood samples, hair—are routinely trashed at the FBI and other crime labs.
“...At the FBI lab, an even larger amount of paperwork -- reports, bench notes and charts -- has been lost in a filing and record retention system no one, including management, seems to be able to rely on.”
Hence, the loss of DB Cooper's cigarette butts seems in line with how criminal evidence in the United States is often handled, even by the FBI.
Competency at the FBI Crime Lab, and elsewhere in the nation's 400 state and local crime labs, is also highly suspect. Kelly and Wearne reveal that proficiency exams and national certification boards for the forensic sciences are determining that professional expertise is highly variable. In fact, up to 20% of evidence has been shown to be misidentified at the local and national level, as indicated in a recent survey of fingerprinting experts:
“In...more than one-in-five instances 'damning evidence would have been presented against the wrong person' noted David Grieve, editor of the fingerprinters' magazine, The Journal of Forensic Identification.
“Worse still, examiners knew they were being tested and were thus presumably more careful and freer from law enforcement pressures.
“Calling for immediate action, David Grieve concluded: 'If one-in-five latent fingerprint examiners truly possesses knowledge, skill or ability at a level below an acceptable and understood baseline, then the entire profession is in jeopardy.'
“The same must be true of every suspect in the country, the vast majority of whom never get a fingerprint expert onto their defense team or any chance of a re-examination. Many crime laboratories routinely destroy fingerprint evidence.”
Perhaps the greatest example of evidentiary malfeasance regarding DNA is the impact of the Innocence Project. Since its founding in 1992, the Innocence Project has used DNA analysis to exonerate over 300 individuals wrongfully convicted, including twenty from Death Row. The Innocence Project estimates that half of those convictions overturned were due to “unvalidated or improper forensic science,” such as hair microscopy or bite-mark comparisons.
Of course, these acts of injustice occurred nationwide in state and local prisons besides federal penitentiaries, but such a broad view gives us a deeper appreciation of what may have happened to the physical evidence in Norjak.
