By John Solomon, Associated Press
May 1, 2003

WASHINGTON — Ten days before Timothy McVeigh was executed, attorneys for FBI lab employees sent an urgent letter to the attention of Attorney General John Ashcroft alleging that a key prosecution witness in the Oklahoma City bombing trial might have given false testimony about forensic evidence.

The allegations involving Stephen Burmeister, now the FBI lab's chief of scientific analysis, were never turned over to McVeigh or the trial court, though they surfaced as the judge was considering whether to delay the execution because the government withheld evidence.

The letter, however, was 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 June 1, 2001, letter to Ashcroft obtained by The Associated Press. The attorneys represented several FBI lab employees, including one who sued after being fired.

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

It was sent to Ashcroft's general fax number and by courier with the notation "URGENT MATTER FOR THE IMMEDIATE ATTENTION OF THE ATTORNEY GENERAL."

Justice officials said Wednesday the letter was routed to Ashcroft's clerical office in the Maryland suburbs of Washington, where it sat for nearly two months and then was 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 attorneys, officials said.

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

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

The officials, who spoke only on condition of anonymity, said Justice did this to keep erroneous information from being circulated later in the legal system.

"We were not trying to suppress embarrassing information," one official said. "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 attorneys 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 to Judge (Richard) Matsch why the execution should be stayed."

Justice officials could not explain how a letter marked for urgent attention by Ashcroft on an issue that was dominating the headlines could be misrouted, except to say that the outside lawyers should have done more than send it by fax and courier.

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

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 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 attorney 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."

The law firm that sent the letter represents several FBI lab employees, including a fired chemist who worked with Burmeister as well as Frederic Whitehurst, who trained Burmeister and later made whisteblower allegations that led to widespread reforms inside the FBI lab.

"We believe that these concerns are most serious and that we are under an obligation to turn this information over to you so that you may fulfill your obligation to notify the defendants in the OKBOMB cases about these serious matters and take corrective action," the letter to Ashcroft stated.

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 defense attorneys attacked the evidence, suggesting the ammonium nitrate, which dissolves in moisture, could not have survived the rain that fell on the Murrah site shortly after the bombing and that it might have come from contamination inside the lab.

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

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