Report Faults FBI's Dallas Chief
Defenbaugh defends handling of evidence in McVeigh case
The Dallas Morning News
By MICHELLE MITTELSTADT
March 20, 2002
WASHINGTON – The head of the FBI's Dallas office and two other supervisors should be disciplined for failing to speedily disclose that thousands of pages of evidence had been withheld from Timothy McVeigh's lawyers, the Justice Department inspector general said in a report issued Tuesday.
Despite learning of possible document production problems in January 2001, the FBI's Dallas chief, Danny Defenbaugh, and others in the Dallas and Oklahoma City field offices waited until May 7 – just days before Mr. McVeigh's scheduled execution – before alerting their superiors, said Inspector General Glenn Fine.
"We believe these delays by the FBI supervisors were a significant neglect of their duties," Mr. Fine stated in his 192-page report. "They could have, and should have, notified FBI headquarters and the prosecutors much earlier about the potential problem, not wait until one week before the scheduled execution date."
Special Agent Defenbaugh defended his handling of the matter, saying he wanted to assess the scope of the problem before notifying FBI headquarters.
While concluding that there was no deliberate effort to conceal evidence from lawyers for Mr. McVeigh or accomplice Terry Nichols, the inspector general was sharply critical of the conduct of Special Agent Defenbaugh, who headed the investigation into the 1995 bombing of a federal building in Oklahoma City, and his deputy, Mark White, a Dallas supervisory special agent. Mr. Fine also recommended that Oklahoma City supervisory Special Agent William Teater be disciplined.
Praising the inquiry as "thorough, objective and independent," FBI Director Robert Mueller said, "We are reviewing these criticisms and will quickly move to take any appropriate disciplinary actions."
Now that the inspector general's inquiry is complete, the FBI's Office of Professional Responsibility will examine the findings and evaluate the agents' conduct to determine whether to take disciplinary action. A decision is expected in a matter of weeks, "not months," one FBI official said, declining to discuss the range of possible sanctions.
"We have a process in place to quickly consider the issue and make the appropriate recommendations and the appropriate decision, while at the same time ensuring [that] employees' due-process rights are protected," said FBI Assistant Director John Collingwood.
Appearing before TV cameras in Dallas to read a brief statement, Special Agent Defenbaugh pointed to the inspector general's finding that there was no deliberate effort to conceal evidence.
"I accept this criticism as it has been presented and respect the diligence which was exhibited in the investigation," he said. Decisions about the documents were "based on my honest evaluation of the situation, my many years of experience, and out of my desire to do the right thing."
Echoing Mr. Mueller's statement, he also noted that the FBI already has undertaken a series of reforms – including retraining all employees in document handling and moving to replace the bureau's legendarily antiquated paper-based case management system with a computerized version.
Special Agent Defenbaugh, 51, who joined the bureau in 1969, said he has no intention of resigning.
Gary Johnson, an FBI spokesman in Oklahoma City, declined to comment on the report, referring a reporter to Mr. Mueller's statement. In addition to proposing disciplinary action against the three men, the inspector general said sanctions should be weighed against Oklahoma City chief Richard Marquise for his "inaction" during the document incident.
The inspector general singled out for praise the two Oklahoma City FBI analysts, Linda Vernon and Peggy Richmond, who warned Special Agents Defenbaugh, White and Teater about their fear that documents had been mislaid.
The pair became concerned after an examination of bombing investigation documents, shipped to Oklahoma City in January 2001 by field offices in Miami and Birmingham, Ala., suggested that some original documents had not been given to the defense. They alerted Special Agent White on Jan. 29, 2001, with Ms. Vernon stating in an e-mail: "My concern is this is a big discovery problem since we told the defense they have seen everything."
The analysts were directed to continue their review, sending out an FBI-wide directive again reminding field offices that all bombing investigation documents had to be turned over to the Oklahoma City office. The inspector general faulted Special Agent Defenbaugh for not setting deadlines for the review, even though the execution date was drawing near. It wasn't until May 7, when the review was completed and more than 700 mislaid documents had been shipped to Dallas, that Special Agent Defenbaugh notified headquarters.
Mr. McVeigh was scheduled to be executed on May 16, 2001. But confronted with the document disclosure, Attorney General John Ashcroft intervened to delay the execution until June 11. He also ordered the inspector general to investigate how the failure occurred.
"The American people have a right to have confidence in our justice system," Mr. Ashcroft said Tuesday. "The Department of Justice is committed to implementing necessary reforms at the FBI."
A leading FBI critic on Capitol Hill, Sen. Charles Grassley, R-Iowa, said the findings indicate the need for "swift and sure action that holds accountable the people who are responsible."
Special Agent Defenbaugh defended his conduct during interviews with investigators from the inspector general's office, saying it was up to Oklahoma City officials to supervise the laborious process of examining whether any of the millions of pages of interviews, photographs and other evidence compiled by FBI offices around the nation had not been given to lawyers.
He told investigators that he did not notify FBI higher-ups earlier because he wanted to ascertain the scope of the problem and feared that word would quickly leak to reporters if the Justice Department was notified.
"Yeah, I should have sped it up, no question about that," he said during one interview excerpt included in the report. "However, I wasn't going to let [McVeigh] get executed either. ... If I was going to blow the whistle and stop the juice from flowing, I was going to make sure that we were right and I was thorough."
An attorney for Mr. Nichols, Michael Tigar, rejected the inspector general's conclusion that the documents were of little value to the defense.
"I read the documents. I identified a very large number of them that I thought were material to Terry Nichols' defense," he said, adding that he could not discuss specifics because the documents remain under seal.