RESPONSE BY: ATTORNEY JOHN DOAR TO SECTION H12, TOBIN ALLEGATIONS, (February 7 and l3, 1997)
LAW OFFICES OF
DOAR DEVORKIN & RIECK
WOOLWORTH BUILDING
(212) 619-3730
JOHN DOAR
MICHAEL S. DEVORKIN
JOHN JACOB RIECK, JR.
CHRISTOPHER E. CHANG
WALTER MACK
JEREMY M. KLAUSNER
10TH FLOOR
233 BROADWAY
NEW YORK, N.Y. 10279-0173
FACSIMILE: (212) 962-5037
February 7, 1997
By Federal Express
Michael R. Bromwich
Inspector General
U.S. Department of Justice
Washington, D.C.
Dear Mr. Bromwich:
This will acknowledge your letter of January 20, 1997 which arrived in my office on January 28, 1997 while I was away on business in northwestern Wisconsin. When I returned to my office on February 5th, I read the draft report carefully. I write to advise that I intend to comment on your report. I believe your quotations from the report make it appear that the Investigating Committee placed some weight on Agent Malone's testimony and that was not the case.
I also know that I did not tell Malone that I had forqotten to subpoena Tobin. Before I send you my comments, I intend to review the Committee's report carefully as well as the record that I have preserved of my work for the Investigating Committee. The report and the records are in storage and I will not be able to retrieve them until this weekend, but you will hear further from me early next week. I have discussed the draft of the report which you sent me with Judge Gerald Tjoflat, formerly the Chief Judge of the Court of Appeals for the Eleventh Circuit. Judge Tjoflat was a member of the Investigating Committee. He has asked me to advise him further after I have reviewed the records.
Sincerely,
John Doar
cc: Hon. Gerard B. Tjoflat (by Federal Express)
LAW OFFICES OF
DOAR DEVORKIN & RIECK
WOOLWORTH BUILDING
(212) 619-3730
JOHN DOAR
MICHAEL S. DEVORKIN
JOHN JACOB RIECK, JR.
CHRISTOPHER E. CHANG
WALTER MACK
JEREMY M. KLAUSNER
10TH FLOOR
233 BROADWAY
NEW YORK, N.Y. 10279-0173
FACSIMILE: (212) 962-5037
February 13, 1997
By Federal Express
Michael R. Bromwich
Inspector General
U.S. Department of Justice
Washington, D.C.
Dear Mr. Bromwich:
This letter is in further reply to your letter of January 20, 1997 in which you enclosed a section of the draft report into allegations of misconduct relating to certain sections of the FBI laboratory. The section of the draft report purported to be a detailed examination of the investigation conducted by a Special Committee of Judges of the Eleventh Circuit of the United States into allegations contained in two complaints filed against then United States District Judge Alcee L. Hastings.
You requested that I review the section of the draft report for any factual inaccuracies. As I indicated in my letter to you of February 7, 1997, I have advised Judge Gerald B. Tjoflat, formerly the Chief Judge of the United States Court of Appeals for the Eleventh Circuit and a member of the Special Committee, of your letter and on February 7th, I sent him a copy of the section of the draft report.
My reactions upon reading the report were twofold. First, I am concerned that a reader of the report might conclude that Agent Malone's testimony had a significant bearing on the findings of the Investigating Committee and might also assume that in making its findings, the Investigating Committee had strictly observed the Federal Rules of Evidence in considering the matters that were brought to its attention. Neither the conclusion nor the assumption was the case.
Second, the meeting described by Malone when he conferred with me before testifying is not factually accurate. I am certain he did not tell me that Agent Tobin, rather than Malone, had conducted the tensile tests. I know that I did not tell Malone that "I forgot to subpoena Tobin", or ask Malone if "he could read Tobin's results into the record". Contrary to what Malone told your investigators, I am certain that I did not have "something in writing regarding the tensile tests."
While the draft report reflects that when interviewed by two of your investigators on August 6, 1996, I disputed Malone's recollection, the draft's failure to resolve this "dispute" may be construed as a reflection on me and I do not like it.
When I was interviewed I had not had a chance to go back to review my files, and I was not asked to do so.
During my interview I told your investigators that I had detailed records of my work product as counsel to the Investigating Committee and I would be glad to research my records to see if there was any information in the files that would assist them. During the interview, I produced for your investigators the detailed index to my records and from those records determined that Malone had testified on October 2, 1985. I believe your investigators had assumed that Malone testified later in October.
At that time I was told that it probably would not be necessary to search my records but if there were a need, I would be so advised.
Thereafter, someone from your office called to ask if I could provide a full transcript of Malone's testimony from storage. I did obtain the transcript, but thereafter my office was advised that the transcript had been obtained from another source.
Last weekend after reading the draft report, I went to my farm where my records are stored and now provide you with the following information:
With respect to the procedure of the Investigating Committee, I enclose the notice to U.S. District Judge Alcee L. Hastings that then Chief Judge John Godbold of the United States Court of Appeals for the Eleventh Circuit and Chairman of the Investigating Committee sent to Judge Hastings on April 2, 1985. (Exhibit 1) You will note that on page 3 of that notice Judge Godbold told Judge Hastings the following:
The Federal Rules of Evidence, and common law rules of evidence, will be utilized when in the judgment of the committee they are appropriate.
Thus, under the Committee's procedure, if Agent Malone had told me that Agent Tobin had conducted part of the FBI Laboratory tests on Judge Hastings' purse, I would have had Agent Malone read Tobin's report into the record. That did not happen because when Agent Malone testified I did not know that Agent Malone had not conducted the so-called tensile tests nor did I have any written report from the FBI to that effect. As to this latter matter, I will return to it later.
On page 15 of your draft report, you refer to two sentences of the Investigating Committee's report with respect to Malone's testimony to the effect that the separation of the strap on Judge Hastings' purse "wasn't a tear at all, it was a cut."
Your draft report then states that the Investigating Committee's report concluded that there was clear and convincing evidence that Hastings had participated in a bribery scheme and had later sought to conceal his participation and explain away evidence connecting him to the scheme.
This is not a fair summary of the Committee's findings. Rather, it suggests that the Committee, in makings its findings, put some weight on Malone's testimony. However, anyone reading the report would readily appreciate that was not the case.
The Investigating Committee's report is in three volumes. The first two volumes consist of the Committee's summary of the evidence received and considered during the course of its investigation. As your draft report indicates the Committee heard testimony from approximately 110 witnesses and considered nearly 2,800 exhibits. Near the end of its summary on page 228 of Volume 2, the Committee devoted one-half page to the testimony of Agent Malone and one sentence to the finding on his microscopic examination. No reference was made to the results of the tensile test.
In Volume 3 of its report the Committee carefully analyzed the evidence. The purpose of the report was to advise the Judicial Council of the Eleventh Circuit of the results of its investigation. The Committee first reported to the Judicial Council that in analyzing the evidence, fourteen circumstances must be kept in mind, each of which the Committee documented in detail. The Committee then discussed what it called "further corroboration" of various items of evidence. It is not possible for me to adequately convey to you the extent of the corroborative evidence, but I suggest that you read pages 291-317 of the report.
On page 318, the Committee analyzed the evidence as to events that occurred on October 9th, the day Judge Hastings "attempted to have a piece or pieces of luggage repaired" and how he purchased a new bag to replace the damaged item. On page 319, the Committee made only the following observation:
The testimony concerning acquisition of an additional man's purse is troublesome because the strap which Judge Hastings claimed he tried to have repaired was not torn, worn, or broken; it was cut.
Thereafter, beginning on page 324, the Committee set forth its findings. The findings consisted of thirty-two separate specific findings to support its conclusion that:
The evidence, considered in its totality, clearly and convincingly establishes that Judge Hastings was engaged in a plan designed to obtain a payment of money from defendants facing jail sentences imposed in his court by promising that with the payment they would receive lenient non-jail sentences.
I suggest that you attach as an exhibit to your report pages 324-329 (Exhibit 2) and note in your report that none of the findings make any reference to Judge Hastings' purse being cut.
As to that part of your draft report that discusses Agent Malone's meeting with me, there are several factual inaccuracies including incompleteness that might cause a reader to draw an inaccurate conclusion.
By way of background, among the persons in my office who worked on the investigation with me was Joseph Sullivan, a former FBI inspector with whom I had worked extensively while I was in the Civil Rights Division.
In May 1985 as we were in the process of preparing for hearings before the Committee, one of our paralegals observed that it seemed strange that the strap to Judge Hastings' purse broke in the middle. I discussed this with Mr. Sullivan and he suggested that we send the purse to the FBI Laboratory to see if it were feasible to obtain a Laboratory examination of the strap.
On about May 22, 1985, Mr. Sullivan discussed the matter with Special Agent Peter W. Keller and arranged to forward the purse to the Laboratory through the Atlanta office of the FBI. On May 22, 1985, Mr. Sullivan drafted a letter to Mr. Keller for my signature in which he explained the purpose of the proposed examination. I do not know whether this letter was sent because in my file which I obtained last weekend from storage, I located two copies of a letter to the FBI with respect to Judge Hastings' purse (Exhibits 3 and 4). You will note that on one of the letters are my handwritten words "not sent". This letter was in my "Contacts with FBI File". The other copy of the letter was in my correspondence file.
On July 5, 1985, I sent an FBI request to Special Agent Dennis Aiken with respect to certain information we requested the Bureau to obtain about Judge Hastings' purse (Exhibit 5). Such a request was the customary and regular way I sought investigative support from the Bureau.
With respect to Agent Malone's testimony with respect to his contacts with me, at page 12 your draft report states that "According to Malone, he met with Doar to discuss his testimony the same day Malone appeared before the Investigating Committee."
This statement is factually inaccurate. Malone met me on Tuesday, October 1, 1985, the day before he testified. I have very rough notes of my interview with him dated October 1, 1985. Those notes were in Michael Malone's witness file together with a report of the FBI Laboratory dated September 30, 1985. The September 30, 1985 FBI report (Exhibit 6) and my notes as well as my witness outline (Exhibit 7) are enclosed.
My handwriting is bad so it may be difficult for someone to make out what I had written, but I can tell you that my notes clearly reflect that Malone described to me a tensile test that he participated in and observed.
The report states that the purse was delivered to the Laboratory on August 8, 1985. Malone testifiedthat he conducted certain microscopic tests on September 25, 26 and 30, 1985.
Your draft report then states that Malone maintains that he then told Doar that he did not conduct the tensile tests but that Tobin had done so. According to your report, Malone recalls that I stated "Damn, I forgot to subpoena Tobin."
Malone's statement is factually inaccurate. I did not say that. In the first place, while approximately 25 FBI agents testified before the Committee, no FBI agent was ever subpoenaed to testify. That was not our practice. I have bound a copy of all of the subpoenas the Committee issued. Nowhere is there a subpoena for an FBI agent. My practice was to write a letter to S.A. Aiken and request that a certain agent be present on a day certain to provide testimony.
Malone did not ever mention Tobin's name to me and I have searched my records high and low and I cannot find any reference to the name Tobin. My notes contain no reference to Tobin or any other agent in the FBI Laboratory who conducted any tests.
Next, the draft report states that "Malone says Doar asked if he could read Tobin's results into the record and Malone agreed to do so." At that time, all that had been provided to me was the Laboratory's September 30th report.
The draft report continues: "Malone thinks he may have then had Tobin's handwritten October 2, 1985, dictation, and says that Doar must have had something in writing regarding the tensile test because Doar knew about the 29.5 pound figure."
I did know about the 29.9 figure because Malone told me that number. It is recorded on page 3 of the notes of my interview with Malone. Prior to receipt of the Laboratory's November 7, 1985 report, I did not have anything in writing regarding the tensile test. At no time has the Bureau ever sent me something unofficial in writing, assuming that Tobin had written something in his handwriting prior to his October 2, 1985 dictation.
On page 3 of my notes of the Malone interview, I have written:
Broke exactly same tensile strength
I couldn't break it normal average person - no more than I can exert
Broke exactly at 29.9 lbs. of tensile strength.
gave us a number
only way break strap
Your report goes on to say that "he told Doar he was not an expert in the 'force test' but that he would try to answer the questions." That did not happen. Malone did describe the tensile test as an "odd ball" test because he said the test had never been done with leather.
Your next paragraph correctly states that I disputed Malone's recollection about the discussion. That was my recollection without any chance to review my records. As a matter of fact, my recollection is that when your investigators came to see me, I believe they said that Malone had told them that I had said to goahead and testify as if he (Malone) had done the test, rather than what your draft report says about me asking Malone to read Tobin's report into the record.
Your draft report then analyzes Malone's testimony in part. It focuses on his testimony about the tensile test but says nothing about his microscopic tests which caused him to conclude that the strap had been partially cut and partially torn.
The testimony about the tensile test that you outlined in your draft report was confusing to the Committee. Therefore, on October 5, 1985 I wrote the Bureau requesting further investigation about the force required to break the strap. (Exhibit 8).
On November 7, 1985, the FBI Laboratory issued a second report about the strap (Exhibit 9). This report, while contradicting Malone's testimony about the amount of static force required to break the strap, did not in any way, as Tobin later wrote, affect the Laboratory's "technical assessment" that the purse strap had been cut.
On November 20, 1985, I received the November 7, 1985 Laboratory report. There was no indication that Tobin had conducted the tests.
The Committee requested me to recall Malone to testify on April 8, 1985. Malone's testimony is summarized as follows:
On April 8, 1986 Malone testified as follows:
He explained the tensile test and the significance of the 29.5 pounds of force. He said he went back to verify how test was done. He said using a "slow steady pulling force" when machine reached approximately 29.5 pounds of pull the strap broke. He said it reflected the breaking point of the strap under slow steady pressure.
He also testified that by examining the two ends of the strap under high magnification, he had been able to determine it had been one continuous strap.
"By fitting it together, looking at torn edges, and the grain of the leather under high magnification, I was able to determine that the point of the strap where it separated was originally adjoining portion of the same strap."
Opinion based in part of his examination of strap under microscope, high magnification.
He was asked was there one break or more than one break. He said one break. He said conclusion was arrived at, in part at least, on the basis of his examination of the ends of the strap under the microscope.
I enclose the transcript of that testimony (Exhibit 10). The Committee did not pursue Malone's testimony any further.
On May 14, 1986, I requested my paralegal to call Agent Malone to obtain more information about the strap on Judge Hastings' purse. Marta Campos reported her conversation with Malone (Exhibit 11).
I also have two objections to the portion of your draft report that quotes Agent Tobin's written opinion that Agent Malone's testimony:
"Presents apparently and potentially exculpatory information as incriminating . . . Malone's testimony about the test breaks 'suppresses apparent exculpatory material behavior' . . ."
I object to including Tobin's opinion as to what is "exculpatory information" because it is an opinion in a vacuum. I also object to the effect of Tobin's opinion on a reader of your report when you provide no details as to the specific evidence of criminal conduct that was before the Committee.
In summary, I am concerned with the factual inaccuracies, the incompleteness, and the tone of your draft report. After you have considered my letter, I believe you have a responsibility to take care to make certain that your final report is factually accurate and not misleading in a way that might reflect, in the eyes of even one reader, badly on the Investigating Committee or on me.
Sincerely,
John Doar
This letter comes to you unsigned by Mr. Doar due to his absence from the City.
cc: Hon. Gerard B. Tjoflat (by Federal Express)
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