US Justice Department alerted to false testimony allegations in McVeigh case

WASHINGTON (AP) _ Less than two weeks before Timothy McVeigh was executed, the Justice Department received a letter suggesting a key prosecution witness had given false testimony. Prosecutors didn't

Thursday, May 1st 2003, 12:00 am

By: News On 6

WASHINGTON (AP) _ Less than two weeks before Timothy McVeigh was executed, the Justice Department received a letter suggesting a key prosecution witness had given false testimony. Prosecutors didn't disclose the allegations to McVeigh's lawyers and later sought to recover all copies of the letter in exchange for a lawsuit settlement.

The letter, marked ``urgent,'' was sent by fax and courier to the attention of Attorney General John Ashcroft on June 1, 2001, by a law firm representing several current and former FBI lab employees. At the time, a judge was deciding whether to delay McVeigh's execution because of evidence the government withheld from his trial.

The letter's allegations involved Steven Burmeister, now the FBI lab's chief of scientific analysis, and were recently turned over to bombing conspirator Terry Nichols, who faces another trial on Oklahoma state murder charges.

``Material evidence presented by the government in the OKBOMB prosecution through the testimony of Mr. Burmeister appears to be false, misleading and potentially fabricated,'' said the letter to Ashcroft obtained by The Associated Press.

The letter cited Burmeister's testimony in a civil case as evidence contradicting his earlier McVeigh testimony. It specifically challenged Burmeister's testimony that chemical residues found on evidence came only from McVeigh's bomb, not other sources such as lab contamination.

Prosecutors are obligated by law to disclose any potentially exculpatory evidence to the defense.

Justice officials said Wednesday they believed the allegations against Burmeister were false and that the letter was routed to Ashcroft's clerical office in the Maryland suburbs of Washington, where it sat for nearly two months before being forwarded to the FBI _ well after McVeigh was executed.

Neither Ashcroft nor other top officials in the Justice Department who handled the McVeigh case saw the letter, spokeswoman Barbara Comstock said. It was never reviewed to determine if it should be handed over to McVeigh's lawyers, officials said.

Comstock said the Justice Department does not believe the allegations would have affected the outcome. ``Court after court has found that the evidence of guilt against McVeigh was overwhelming,'' she said.

Law enforcement officials, however, divulged that last year Justice Department lawyers made a lawsuit settlement offer to the law firm and one of its clients, a fired FBI lab employee, that would have required the firm to give up all copies of the letter. The offer was eventually dropped.

``We were not trying to suppress embarrassing information,'' one official said, speaking only on condition of anonymity. ``We think it was erroneous information. All these discussions took place in a legal setting where it is commonplace for both sides to disarm each other's strategies.''

McVeigh's lawyers expressed dismay that they weren't told of the letter. At the time it was sent, a judge had dramatically delayed McVeigh's execution by one month because of other evidence the FBI failed to turn over during his trial.

``It is truly shocking and just the latest revelation of government conduct that bankrupts the prosecution, investigation and verdict,'' said Stephen Jones, McVeigh's lead trial attorney.

Rob Nigh, an Oklahoma attorney who represented McVeigh from trial through his final appeal, added, ``Had we had this letter, we would have had additional arguments to make ... why the execution should be stayed.''

The allegations surfaced in mid-May 2001 when Burmeister, who made a key forensic discovery in the McVeigh case, was being questioned by lawyers for FBI lab employees who had sued the agency. One of the lab employees had been dismissed recently.

A transcript of the deposition obtained by the AP shows that Justice and FBI lawyers became concerned that statements Burmeister might make would be helpful to McVeigh and Nichols, and they ordered lawyers to cut off that line of questioning.

``We can't have him now second guess his testimony in the McVeigh case,'' a Justice lawyer interjected. ``I mean the effect of that is to embarrass the FBI.''

The FBI said Burmeister was unavailable for comment, but it stood by his work.

``It didn't happen,'' FBI lab director Dwight Adams said when asked about the allegations of false testimony. ``Steve Burmeister is one of the FBI's finest experts. He is meticulous and honest.''

Burmeister rose to prominence in the case after he made a surprise discovery of ammonium nitrate crystals embedded in a single piece of the Ryder truck McVeigh used to detonate his deadly explosive that killed more than 160 people at the Alfred P. Murrah building on April 19, 1995.

Burmeister's discovery was key to the government's proof that McVeigh and Nichols had used a giant fertilizer bomb to carry out their attack. Ammonium nitrate is a key ingredient in such a bomb.

McVeigh's lawyers attacked the evidence. At the time of the 1997 trial, the FBI lab had been stung by whistleblower Frederic Whitehurst's allegations of shoddy science and some forensic evidence was kept out because of contamination issues.

But Burmeister's discovery was permitted. He testified the evidence he found could not have been contaminated because he kept his lab examination area locked and that only FBI personnel wearing sterile lab coats and other protective gear had access to the area.

Outsiders ``were restricted basically from coming into my work area, into my room,'' Burmeister testified. ``My room was specially locked, and that's where I conducted the examinations.''

However, the law firm letter to Ashcroft provided sworn testimony from Burmeister in an unrelated civil case showing cleaning crews and a fellow chemist had unrestricted access to Burmeister's work area _ without protective clothing.

``Mr. Burmeister testified that while this chemist shared an office with him, no extra precautions were taken to prevent contamination,'' the letter said.

The letter further offered Burmeister's own description of the access cleaning crews had to his lab area. ``There was a service staff that would come in and buff and wax the floors,'' he testified.

``I've known them to clean windows in offices and I've seen them stand on the heating elements by the windows,'' Burmeister added.

Adams, the FBI lab director, said the lawyers took Burmeister's deposition testimony out of context and that the fact that cleaning crews or lab employees accessed his workspace could not account for the ammonium nitrate crystal.

``You can make what you want to about who has access to the room but the key fact is that crystal was embedded with great force and that could only come from an explosion ... not contamination from some cleaning crew,'' he said.

The lawyers' letter also stated that during his deposition, Burmeister contradicted testimony on a second matter in the McVeigh case when he testified that the chemical PETN found on McVeigh's clothing was ``not used for drug purposes anymore.''

``At his deposition, Mr. Burmeister contradicted his OKBOMB testimony and admitted that PETN was 'still used for some heart medications,''' the letter to Ashcroft said.

The letter questioned why prosecutors had never corrected the trial record.

Adams said Burmeister qualified his answer at the McVeigh trial by saying it was to the best of his knowledge, and he did not intend to mislead the court.