Lots more Hatfill exhibits are due today. In opposing a motion for summary judgment, a party will point to what they view as creating a triable issue of fact. If their adversary has said the fact is established, they will seek to show that there is a genuine issue by introducing or pointing to some deposition testimony or document that shows that there is an issue for trial. On the pond story, Attorney Seikaly is the one who pointed out that the box could be used for a meth lab. I don’t know the technology and can’t comment — but my research caused me to think the plastic sweater box with holes in it was a minnow trap.
By way of background, Marilyn Thompson, author of The Killer Strain, reported in the Washington Post on May 11, 2003 that in its search of the ponds, the FBI found what appears to some to be be an improvised”glove box” and also (supposedly) wrapped vials. I believe that we never heard more about wrapped vials supposedly found but Ed might know. Marilyn T. described it as a “clear box” — other reports describe it as a plastic tub. There was no claim that the glove box has been tied to Dr. Hatfill or that the vials had been. The pond is located near Ft. Detrick. It certainly makes one wonder what fascinating things might lurk in the ponds of nearby parks. The box reportedly had a rope — later described as more like a shoestring) attached. This is what pointed to it being a minnow trap as that is how such a thing is retrieved.
”If there is anthrax in the water, I am relatively sure that the water is safe,” the Mayor of Frederick said to the local paper. No trace of anthrax was found. The story was hugely prejudicial. Attorney Seikaly’s leaking of the story may have handed Hatfill’s attorneys a meritorious Section 1983 claim under the civil rights statute, particularly after the similarly sourced ABC and CBS stories about agents who were convinced he was guilty. If the Department of Justice permitted those leaks to occur — or if the leaks were by a “managing agent” — it risks Section 1983 liability itself. Now we have seen the FBI did a media leak investigation in 2002 that was patently insufficient and so Dr. Hatfill’s attorneys seemed to have remained on track in developing their theory. Moreover, as to a Privacy Act claim, they have established that the list of “persons of interest” is kept in a database. And so in both respects, the DOJ is going to have to do some fancy footwork. The results of litigation are always uncertain and so it is anyone’s guess how a decision-maker, after studying the legal arguments and case precedent, will decide.
Newsweek, on the plastic tub story, reported: “While some law-enforcement officials are taking the novel theory seriously, others have dismissed it as fantasy. ‘It got a lot of giggles,’ says one FBI source.” As many schoolboy knows (or at least any schoolboy with google available to him could readily learn), a rope or shoestring is used to retrieve a minnow trap from the bottom of a pond. The USA Today first reported that a rope was found attached to the plastic container. That reporter confides that her sources insist that no gloves were in fact found as reported in the Washington Post. Allan L. had a sole source for that.
“While some law-enforcement officials are taking the novel theory seriously, others have dismissed it as fantasy. ‘It got a lot of giggles,’ says one FBI source.”
Clawson relying on details from their own “sources,” reportedly said it was “like a K-Mart sweater box; like a piece of Tupperware that just happened to have a hole in it.” Then he added, “From what I understand it doesn’t have anything to do with bioweapons.” School children are even taught online to study the flow of water systems using plastic sweater boxes with a hole cut in it and take it to the pond or stream.
TOP 10 USES OF A PLASTIC SWEATER BOX FOUND AT A POND
1. to incubate snake or turtle eggs,
2. breeding crickets,
3. snake feeding room,
4. live bait dispenser,
5. common school project to study the flow of water systems,
6. minnow or turtle trap,
7. turtle transporter,
8. breeding waxworms,
9. illicit use of the street drug meth,
10. pumping up someone’s litigation claims.
The area they were searching is a quarter mile west of Fishing Creek Road. According to the Gambrill Park webpage, a small pond, located in the Rock Run area is popular for fishing for large mouth bass, bluegill and channel catfish. As explained by one web thread “Minnow trap advice,” even bluegill can be caught using a minnow trap (not just minnows) There are many species of minnows in ponds. A common minnow is the Golden Shiner. Minnows or shiners, mostly stocked as food for bass. The photo in Newsweek of the diver in the wetsuit from last December or January might best be captioned, as Brer Fox once asked Brer Rabbit, “Did you catch minnows or a cold?”
Some minnow traps are rectangular boxes such as illustrated by Pat No. 5,131,184 (1992) that look even more closely like a glove box . As the Baltimore Sun reported, explains, what was found was NOT a commercial glove box. If the gloves don’t fit, you must acquit. My favorite suggestion is that it relates to the infestation of Maryland ponds of the Crofton snakehead, a species ruinous to ecosystems that someone released from an aquarium. Numerous traps were set to rid Maryland ponds of the creature.
The news stories suggest the image of someone sticking their gloved hands into the box while underwater. Well, how does water not rush through the holes? Did Hatfill stick his hands into the box outside the water, walk awkwardly into the water, then submerge the box? Water would seep through. Here is another question in this fanciful scenario imagined by some in the press and their unnamed sources: where are the “port” or “securing ring” -like devices? If this box was used as alleged, why would these devices be taken away by the perp instead of left there too?
William Patrick’s formula for making BG — using silica — is online. (I have no idea why Ed for five years argued silica was not used in making simulants (even when dispersed by aerosol rather than bombs or missiles). Dr. Patrick’s protestations that he would only talk about it at conferences with those who had a “need to know” lies in contrast to what is available to someone using google (from a conference where the audience did not have a need to know such specifics). But if Dr. Patrick and Dr. Alibek felt some comfortable giving details while talking about the threat of terrorists using anthrax, then I can appreciate that the theory they might have shared the information with Dr. Hatfill is perfectly reasonable. Patrick and Alibek spoke alongside Dr. Hatfill for example at a 1998 conference when the three were the speakers at a conference. A Hatfill theory may have been wrong but it always needed to be vigorously explored. But given someone working with Bin Laden’s sheik and lecturing on the end of times was drinking from the same water cooler — he was the far better POI. To the extent there was compartmentalization between squads even at that time, the members of the one squad might not have known that. But Howard, Seikaly, and Van Harp should have known that — after February 2003, Attorney Seikaly’s leaks are even more dumbfounding unless, for whatever reason, they were intended to distract attention from a theory involving Al-Timimi’s access to know-how.
I’ve emailed Attorney Seikaly, his sister-in-law (who with his brother) spoke and wrote about not assuming terrorism was related to Bin Laden. Then his daughter, who came to represent Al-Timimi, pro bono, in the sedition case. The pro bono assets for the Virginia Paintball defendants arranged by a colleague (Nubani) who has worked with Lynne Stewart and Stanley Cohen in defending the blind sheik and affiliates (according to an article online in the ABA Journal). I first wrote Attorney Seikaly and his relatives in December 2007 and haven’t heard since. I called another lawyer at the daughter’s firm and he refused to discuss it. And so by all means, if there is any information they would like to point out as incorrect, they should contact me. But, I, for one, am very disappointed that all the most senior people did not follow Lambert’s example in January 2003 and waive any release of confidentiality and agree to a polygraph.
In the event the plastic tub was homemade, note that frugal fishermen on the internet post directions on how to make a homemade minnow trap:
“I don’t take credit for this I saw it on Rec. Ponds awhile ago Take an empty 2 liter bottle, cut off the top where it is as round as the rest. (making a funnel) invert it back into the rest of the bottle and staple it back together. Put in some food (I used bread)I also tie a string onto it by putting a small hole on the bottom and fishing the string through the funnel hole. Drop it in and wait about an hour an pull it back up. I caught about 20 per container The fish can swim in but can’t get out.”
“A basic rule of aquatic research,” another poster explains, “is that you have to be prepared to lose anything you put in the water.”
The way a minnow or turtle trap works is that the small fish or turtle can swim in but can’t swim out — sort of like being named a Person of Interest.
A Washington Post article on May 30, 2003 characterized the false positive as merely a conflicting lab report and the tantalizing (albeit casually dropped) new discovery of gloves wrapped in plastic. Can you imagine the leaker gleefully seizing the issue of the gloves allegedly found, challenging detractors to a duel, and saying “Take that!” We are also told that investigators were “surprised” not to find traces of anthrax at the places they searched. Other “agents fear that draining the pond, estimated to cost $250,000, could prove useless and embarrassing.” The article states: “The business acquaintance’s tip offered a clue to how the bioterrorism crimes could have been carried out.” (He then went on to be a supervisory analyst at the FBI and write a 600+ page thesis on anthrax in Zimbabwe supervised by Ken Alibek.) The same suggestion that a glove box could be used — or that insertion could be made outdoors — was made by numerous people in a group called anthrax_fans (at) coollist.com. It would occur to anyone naturally — even though it went against the suggestion that a million dollar containment facility would be needed. We shouldn’t blame the press (too much). At the time of the leaks, I would never have imagined that the leaks were as senior. If you cannot trust the folks in charge of the investigation, who can you trust?
Another key “leak” issue related to the use of bloodhounds and the claim they strongly alerted to Dr. Hatfill. Attorney Seikaly gave an “exclusive” in the summer of 2002 about how the bloodhounds, he claimed, alerted to Hatfill. We have FBI Special Agent Bradley Garrett’s deposition, testimony, I believe, describing the events (having been there).
For those who believe in Tinkerbelle (one of the dogs used) , while most jurisdictions allow bloodhound evidence, courts generally have reservations about the possibility of inaccuracy of the evidence (when dogs, in fact, have alerted to a particular individual). The dog cannot be cross-examined. There is always the possibility that the dog may make a mistake. Accordingly, there are strict foundational requirements. The notion that such evidence is of slight probative value or must be viewed with caution stems at least in part from fear that a jury will be in awe of the animal’s apparent powers and will give the evidence too much weight (as the ABC and Newsweek reports amply illustrated). Putting aside for a moment use of the scent transfer device, five specific requirements are commonly required to establish an adequate foundation for dog-tracking evidence: (1) the handler was qualified to use the dog; (2) the dog was adequately trained; (3) the dog has been found reliable; (4) the dog was placed on the track where the guilty party had been; and (5) the trail was not stale or contaminated. Attorney Glasberg, in an email, expressed pleasure over an article by Shane that discussed the limitations of bloodhound evidence on bloodhounds. But Shane’s reporting has always been good even when pursuing the evidence underlying a Hatfill Theory.
A bloodhound provided with the deceased tennis shoes might very reliably lead authorities to the deceased’s body in the woods. What would have been used for the scent pack here is the human scent, if any, on the letter on which the perpetrator rested his hand in writing the letter. Tennis shoes are far more likely to carry a scent than a piece of paper on which the perp rested his hand (while possibly using gloves) to write a 28-word letter. Just ask my wife. The dogs would not have been clued to the biological agent as biological agents such as anthrax tend not to have a distinctive scent.
Here, there would be no such log because the use of the dog would not have been the subject of pre-911 testing and training showing the dog performed reliably under similar circumstances. At a minimum, the “trail” would have been contaminated by the irradiation and anthrax, and would have grown stale by the passage of time. The FDA concluded that irradiation can produce small changes in the taste, smell, and sometimes texture of foods and that consumers should be informed of this. Jurors should too. Remember that scene from “Miracle on 34th Street” where the official finding of the agency of the United States’ government was deemed binding on the prosecution? Imagine Attorney Connolly or Grannis calling FDA scientists who found irradiation caused changes in smell, no doubt amplified by the much keener sense of a bloodhound.
The United States Post Office explains in a FAQ that “the materials in the mail are heated and may become chemically altered. Paper dries out and may become dusty, discolored, and brittle.” Some postal workers and federal agency staff have reported symptoms such as eye, nose, throat and skin irritation, headache, nausea and occasional nosebleeds. What does the USPS do under these circumstances? Their solution includes “[u]sing hypoallergenic deodorizers to eliminate any smells.” “Testing each batch of aired-out mail to ensure no detectable amoungs of gas exist before delivery.” Alas, Tinkerbelle’s lengthy pre-911 log shows that perfume does not confuse her, but likely is silent on this question of irradiated paper. The prosecution witness who might testify that a bloodhound’s sense of smell is 200 times as powerful as a human’s sense of smell would merely be helping the defense argument. No amount of log keeping or experiments after the fact would serve to permit admissibility under the court precedent. The bloodhound evidence was always a bogus and hugely prejudical diversion since the first sensational Newsweek story leaked by Daniel Seikaly, head of the Criminal Division of the District of Columbia United States Attorneys Office.
In any event, the mailer would have worn gloves and only briefly handled the letter. More broadly, there is an article that collects cases from 40 or so states and nothing approaching the delays has ever been found admissible. In a city landscape, the time period is much more restrictive. The Leahy letter, written by the perp sometime prior to the October 9, 2001 postmark, was not discovered until mid-November, and as of November 19, 2001 a protocol was still being developed for its opening. Thus, the 40 day period that had been passed by the (likely glove-wearing) perp already would have resulted in a stale trail.
There is a separate additional issue of use of the “scent transfer unit” here. A “scent transfer unit” such as used here looks like a Dustbuster, modified with a small frame at the end to secure a piece of gauze over its intake opening. The user attaches a piece of sterile gauze to the unit, activates the unit, and holds it against the item from which the scent is to be taken (such as where the person sat the night before). Depending on the jurisdiction, the scent transfer unit, which is a new technology, may be subject to the rule regarding new scientific methodology. Under that rule, the proponent of such evidence must establish the new scientific principle or technique is sufficiently established to have gained general acceptance in the particular field in which it belongs under the circumstances of the case. Here, there is no such general acceptance as explained by Scott Shane in an article in the Baltimore Sun relying on experts in the Maryland area. The purpose of the requirement is to avoid factfinders from being misled by the `aura of infallibility’ that may surround unproved scientific methods. This would constitute a possible third independent grounds for excluding the evidence. Absent a training log showing the dog performed reliably under similar circumstances, given the time period that had passed, and in light of the use of the scent transfer unit, there is nothing the FBI or trainers would be able to do to save the admissibility of the bloodhound evidence because it will be found by a court to be unreliable. The trainers reportedly tested their dogs on irradiated paper — presumably before actually doing the search but after being asked to do so. That would not pass muster that past training be substantiated by a training log.
Absent a pre-911 training log showing the dog performed reliably under similar circumstances, given the time period that had passed, and in light of the use of the scent transfer unit, there is nothing the FBI or trainers would be able to do to save the admissibility of the bloodhound evidence because it will be found by a court to be unreliable.
Both of the major police bloodhound associations howl against the reliability of the Scent Transfer Unit used by the three blood handlers. One of the dog handlers, Dennis Slavin, is an urban planner and reserve officer with the South Pasadena Police Department. One of the other dog handlers is a civilian who runs his own bloodhound business. Shane, in his very impressive Baltimore Sun article, explained that an FBI agent, Rex Stockham, examining the technology for the FBI lab says: “It’s going to be criticized. I’m critical of it myself.” The President of the Bloodhound Association, who is critical of the technology used by these handlers, had testified 21 times, and likely will have testified 22 if the FBI attempts to rely on the evidence in a prosecution. Shane notes that a federal jury awarded $1.7 million last year to a man wrongly accused of rape after police identified him in part based on the use of Slavin’s bloodhound, TinkerBelle. Shane’s article gives the further example of their use in the sniper investigation, where “given the scent taken from spent shell casings, followed two false trails in Montgomery County. One led to a house, for which a search warrant was obtained and which turned out not be relevant. The other led to a dog-grooming parlor, the officer said.” Phew. It’s no wonder Lucy responded to Hatfill. He is a ladies’ man, after all.
The New York Times also had an excellent article in December 2002 surveying the field that noted the case where dogs falsely indicated the presence of explosives in the cars of three medical students bound for Miami. The country watched the drama unfold on television as the men were held and authorities closed a major highway across Florida. No trace of explosives was found. When dog handlers are excited, dogs can overreact and give a false positive. “Dogs want rewards and so they will false alerts to get them. Dogs lie. We know they do,” an expert told the Times. One of ‘TinkerBelle’s most incredible talents,”her homepage touts, is her ability to find the person responsible for loading a gun using scent from an expended bullet casing.” Indeed, she finds the “smoking gun.” Most of all, the page notes, she too is a people person.
With the investigation going to the dogs, nearly 100 law enforcement officers gathered to watch some of their colleagues jump in a lake near where Dr. Hatfill lived, and in late January 2003, the FBI continued searching the forest in Frederick. Locals were amused that some of the ponds had been dry earlier that year. While they may seem to enjoy their dinners at Georgetown, FBI agents and surveillance specialists do not have an easy job. The public demands that they exhaustively pursue all leads, but then there is an uproar if they cross some unpredictable line and step on — or run over someone’s toe. They did just that in Hatfill’s case and he got ticketed for putting his foot under the car’s tire.
No, I don't. The subject was apparently just forgotten. On May, 11, 2002, UPI reported:
Two sources familiar with the items recovered from the pond described a clear box, with holes that could accommodate gloves to protect the user as he worked. Also recovered were vials wrapped in plastic.
The Washington Post reported exactly the same thing on the same day, word for word. So, one copied from the other or they both copied from the same source.
On the 12th of May I made this comment on my web site:
At this point in time I certainly wouldn't be surprised if the "clear box, with holes that could accommodate gloves to protect the user as he worked" turned out to be some kind of fish finder box. I wouldn't even be surprised if the "vials wrapped in plastic" turned out to be a couple empty Jim Beam pints in a plastic liquor store bag.