U. S. Department of Justice

Office of the Inspector General

, I

A Review of the FBI's Handling of the

Brandon Mavfield Case

UNCLASSIFIED AND REDACTED

Office of the Inspector General

Oversight and Review Division

March 2006
TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................... i

INDEX OF FIGURES AND TABLES .............................................................. vii

TABLE OF APPENDICES .............................................................................. ix

EXECUTIVE SUMMARY ................................................................................ 1

I. Background ............................................................................................ 1

II. The Methodology of the OIG Investigation ................................................ 4

III. Organization of the OIG Report ............................................................... 5

IV. OIG Assessment of the Causes of the Misidentification ............................ 6

A. The Primary Causes of the Error ..................................................... 6

1. The unusual similarity of the prints ............................................ 6

2. Bias from the known prints of Mayfield ....................................... 7

3. Faulty reliance on extremely tiny (Level 3) details ....................... 8

: 4. Inadequate explanations for differences in appearance .............. .8

5. Failure to assess the pnnr n,,,1;*,, of similarities 9

6. Failure to reexamine LFP 17 following the April 13 Negativo

Report ...............................................................9

B. OIO Assessment ofOther PotentialSources ofError ...................... 10

C. The R01e ofMayfield'sReligionin the Identification........................ 11

D. Explanations Found by the OIG Not To Have Contributed

to the Error ............................... _...........................................12

V. OIG Assessment of the FBI Laboratory's Responses to the Error ............ 13

VI. Analysis of the Investigation, Arrest, and Confinement of Mayfield ........ 14

A. _ Effect of the Patriot Act on the Mayfield Investigation .................... 14

1. Sections 2 18 and 504 of the Patriot Act ......... ........................... 15

2. National Security Letters .......................................................... 16

3. Other Patriot Act provisions ...................................................... 17

4. Conclusion regarding the impact of Patriot Act amendments

on the Mayfield investigation .................................................... 17

B. The Role of Mayfield's Religion in the Investigation ........................ 18

C. The FBI's Participation in the Preparation of the Material Witness

and Criminal Search Warrants ...................................................... 19

D. The Role of Media Leaks in the Arrest of Mayfield .......................... 19

E. The Conditions of Mayfield's Confinement ..................................... 20

F. Recommendations ......................................................................... 20

CHAPTER ONE: INTRODUCTION ................................................................ 21

I. Background .......... :............................................................................... 21

II. Methodo!o_, of this Review ................................................................... 22

III. Organization of the OIG Report ............................................................. 25
IV. Description of Organizations Involved in the Mayfield Matter ................. 25

CHAPTER TWO: CHRONOLOGY OF EVENTS RELATED TO THE

MAYFIELD CASE ........................................................................................ 29

I. Pre-Arrest Events .................................................................................. 29

A. The Madrid Train Bombings and the Recovery of Latent

Fingerprints 17 and 20 ................................................................. 29

B. The Identification of Latent Fingerprint 17 by the FBI .................... 29

C. Initiation of the FBI Investigation of Mayfield ................................. 34

1. Notification of the Mayfield identification to the FBI's CTD and

Portland Division ...................................................................... 34

2. Initiation of the field investigation of Mayfield by the Portland

Division .................................................................................... 36

3. Authorization for covert electronic surveillance and physical

searches ................................................................................... 38

4. Early concerns about a leak ..................................................... 40

D. The FBI Laboratory's Response to Initial Concerns of the SNP ........ 41

E. Course of the Investigation from Late March until Mid-April .......... 42

!. "v_,_.... _ _tq_ ,,- of _o,,¢_1,_j........................................ ,_ _,¢_,,_ 42

2 ........................................................... 43

3. The FISA search of Mayfield's residence ......................... 48

4. The FISA search of Mayfield's residence ....................... 49

F. The April 13 Negativo Report ......................................................... 51

G. The April 21 Meeting in Madrid ..................................................... 54

H. Late April - Early May ................................................................... 56

1. The aftermath of the I search ......................................... 56

2. The FBI's investigative plan and theories regarding Mayfield's

involvement in the bombin s 57

3. The FBI discovers material

I 59

I. The Decision to Arrest Mayfield on a Material Witness

Warrant ..................................................................... ................... 60

T D-,.._.,...,,-,-,..,.-, +;,-,.,.., C.LI,,,.,._I-I-_._CLVILO Ill _JL._lJ_l c _1 ul_ ivzC_c,_-lcc- vv .czl_oo

and Search Warrants .................................................................... 62

1. Affidavit description of the FBI Laboratory's identification

of Mayfield ................................................................................ 63

2. Affidavit description of the SNP doubts and the April 21

meeting .................................................................................... 64

3. Affidavit description of the FBI's beliefs regarding travel by

Mayfield to Spain ...................................................................... 66

II. The Arrest of Mayfield and Subsequent Events ...................................... 67

A. Arrest of Mayfield .......................................................................... 67

B. Criminal Searches and Witness Interviews .................................... 69

C. Post-Arrest Developments ............................................................. 70

1. Mayfield's initial court appearance ............................................ 70

ii
2. The FBI's continuing investigation of Mayfield .......................... 71

3. Subsequent court proceedings involving Mayfield ...................... 71

D. Mayfield's Detention ...................................................................... 73

E. The SNP's Reexamination of Latent Fingerprint 17 ........................ 76

F. The Court-Appointed Fingerprint Expert ....................................... 80

G. The SNP's Identification of Daoud .................................................. 81

H. The Release of Mayfield ................................................................. 82

I. The FBI Laboratory's Reexamination of Latent Fingerprint 17 ........ 83

J. Dismissal of the Material Witness Proceeding ................................ 88

K. Aftermath ...................................................................................... 89

L. The FBI's Identification of Daoud as the Source of

Latent Fingerprint 17 and Latent Fingerprint 20 ........................... 92

M. Mayfield's Civil Action ................................................................... 93

CHAPTER THREE: BACKGROUND FOR THE OFFICE OF THE

INSPECTOR GENERAL'S ANALYSIS OF FINGERPRINT ISSUES RAISED

BY THE MAYFIELD CASE ........................................................................... 95

I. Description of the FBI Laboratory LPU .................................................. 95

ii. Overview of the Latent Fingerprint Examination Process in the FBI

Laboratory LPU ........................................................................................... 97

A. Policies and Procedures Governing the LPU ................................... 97

B. Friction Ridges and the Premises of Fingerprint Identification ....... 98 J

C. Latent Fingerprints ....................................................................... 99

D. Known or Exemplar Prints .......................................................... 104

E. The ACE-V Process for Latent Print Identification ........................ 105

1. Analysis ................................................................................. 105

2. Comparison ............................................................................ 107

3. Evaluation ................... ........................................................... 109

a. Individualization (identification) .... ..................................... 109

b. Exclusion .......................................................................... 112

c. Inconclusive 113

4. Verification ............................................................................. 115

F. Standard for Declaring a Match ................................................... 116

G. Integrated Automated Fingerprint Identification System

(IAFIS) ......................................................................................... 118

H. Simultaneous Impressions .......................................................... 121

I. Documentation and Review Requirements ................................... 122

J. Errors .................................................... ..................................... 123

CHAPTER FOUR: OFFICE OF THE INSPECTOR GENERAL'S ASSESSMENT

OF THE CAUSES OF THE FINGERPRINT MISIDENTIFICATION 127

I. The International Panel Review ........................................................... 127

A. Findings of the International Panel .............................................. 127

B. Differences Between the OIG Investigation and the International

Panel Review ............................................................................... 128

iii
II. OIG Assessment of Causes of the Erroneous Identification .................. 129

A. Major Contributing Causes of the Error ....................................... 130

1. The unusual similarity of the prints ........................................ 130

2. Bias from the exemplar prints (circular reasoning) .................. 138

3. Faulty reliance on Level 3 Detail ............................................. 150

4. Inadequate explanations for differences in appearance ............ 153

a. The _double touch" explanation for the upper left portion of

LFP 17 ............................................................................... 156

b. Other differences ............................................................... 166

i. Differences in ridge flow 167

ii. Differences in distances between points ........................ 168

iii. Cumulative impact of differences ................................... 169

5. Failure to assess the poor quality of similarities ...................... 170

6. Failure to reexamine LFP 17 following the April 13 Negativo

Report .................................................................................... 172

B. OIG Assessment of Other Potential Sources of Error .................... 172

1. Ridgeology versus Numerical Standards ................................. 173

2. Independence of FBI verification procedures ........................... 175

3. Pressure_ _f a terrorism investigation i_ °° °,°°,,°,°°o,°,,°,°°°°,°°°°°,,o °°°°° I I

C. The Role of Mayfield's Religion in the Identification ...................... 178

D. Explanations Found by the OIG Not to Have Contributed to

the Error ..................................................................................... 179

1. Lack of access to the original evidence .................................... 179

2. Image quality .......................................................................... 183

3. Failure to detect interruptions in ridge flow ............................ 185

4. Whether LFP 17 was of _no value" because it could

_work with" two different people .............................................. 188

5. Excessive faith in IAFIS technology ......................................... 189

6. The LPU verifier's prior errors ................................................. 190

E. Summary of Causes .................................................................... 191

CHAPTER FIVE: OFFICE OF THE INSPECTOR GENERAL'S ASSESSMENT

OF THE FBI LABORATORY'S RESPONSES TO THE FINGERPRINT

MISIDENTIFICATION ................................................................................ 195

I. The Latent Review Team Recommendations ........................................ 195

A. Research Projects ........................................................................ 196

B. Revision of the Standard Operating Procedures (SOPs) ................ 197

C. Documentation ........................................................................... 201

D. Verification Procedures ............................................................... 204

E. Training ...................................................................................... 206

II. Review of Prior IAFIS Identifications from Digital Prints ....................... 207

III. Capital Case Review ............................................................................ 209

IV. Corrective Action ................................................................................. 209

V. Conclusions Regarding the FBI Laboratory's Responses ...................... 217

iv
CHAPTER SIX: OFFICE OF THE INSPECTOR GENERAL'S ANALYSIS OF

THE INVESTIGATION, ARREST, AND CONFINEMENT OF MAYFIELD ........ 221

I. Analysis of the FBI's Use of FISA and the Patriot Act ........................... 221

A. The Impact of the Patriot Act Amendments on the FISA

Surveillance and Searches of Mayfield ......................................... 222

1. Sections 218 and 504 of the Patriot Act .................................. 222

a. The '_Primary Purpose" test and the "Wall" ......................... 222

b. How Sections 218 and 504 of the Patriot Act facilitated the

removal of the "wall" .......................................................... 223

c. Effects of Sections 218 and 504 on the decision to seek

FISA searches and surveillance in the Mayfield case .......... 224

2. Section 207 of the Patriot Act 226

3. Section 206 of the Patriot Act ................................................. 227

4. Section 213 of the Patriot Act ................................................. 228

5. Section 214 of the Patriot Act ................................................. 229

B. The Impact of the Patriot Act Amendments on the Use of National

Security Letters in the Mayfield Investigation .............................. 230

C. Effects of Patriot Act Amendments on Information Sharing in the

Mayfield Case .............................................................................. 231

D. Minimization Requirements ......................................................... 234

E. OIG Conclusions Regarding Impact of Patriot Act Amendments

on the Mayfield Investigation ....................................................... 236

II. Analysis of the Role of Mayfield's Religion in the Investigation ............. 237

III. The FBI's Participation in the Preparation of the Material Witness and

Criminal Search Warrants ......................................................................... 240

A. Representations Relating to the FBI's Fingerprint

Identification ............................................................................... 241

B. Representations Relating to the SNP ............................................ 243

C. Representations Relating to Mayfield's Travel and

Risk of Flight ............................................................................... 252

l\l Th_ I_RT'._ Rffnrt Tn Ohtnin n Finnl Fin_arnrint l_ennrt frnrn the ,qNP

Laboratory ................................................................................................ 253

V. Problems in the Execution of the Surveillance and Searches ............... 255

A. Problems in the Execution of FISA Surveillance ........................... 255

B. Problems with the FBI's Searches of the Residence ...................... 256

VI. The Role of Media Leaks in the Arrest of Mayfield ................................ 258

VII. Conditions of Confinement .................................................................. 259

A. Whether Mayfield's Detention was in Compliance with the

Material Witness Statute ............................................................. 260

B. OIG Review of Other Allegations Regarding Mayfield's

Confinement ................................................................................ 262

C. Problems with Mayfield's Alias ..................................................... 264
VIII. Summary ......................................................................................... 266

CHAPTER SEVEN: CONCLUSION .............................................................. 269

vi
INDEX OF FIGURES AND TABLES

Page

Figure ! Time!ine of Major Events 28

Figure 2A March 22 Charted Enlargement (Latent Print) 44

Figure 2B March 22 Charted Enlargement (Mayfield Exemplar) 45

Figure 3 Common Level 1 Patterns 100

Figure 4 Common Level 2 Details 101 -

Figure 5 Common Level 3 Details 102

Figure 6A Level 2 Details Used To Identify Mayfield Also Used To Identify 132

Daoud (LFP 17)

Figure 6B Level 2 Details Used To Identify Mayfield Also Used To Identify 133

Daoud (Mayfield Exemplar)

Figure 6C Level 2 Details Used To Identify Mayfield Also Used To Identify 134

Daoud (Daoud Exemplar)

Figure 7A Level 2 Features Used To Identify Mayfield That Have No Source 140

in the Daoud Exemplars (Do Not Exist) (LFP 17)

Figure 7B Level 2 Features Used To Identify Mayfield That Have No Source 141

in the Daoud Exemplars (Do Not Exist) (Mayfield Exemplar)

Figure 7C Level 2 Features Used To Identify Mayfield That Have No Source 142

in the Daoud Exemplars (Do Not Exist) (Daoud Exemplar)

Figure 8A Original IAFIS Coding {LFP 17) 146

Figure 8B Revised Interpretation of IAFIS Points Following Mayfield 147

Comparison (Mayfield Exemplar)

Figure 8C Actual Feature Types in Daoud Exemplar 148

Figures 9A- 9F Differences in Appearance Between LFP 17 and Mayfield 156

Exemplar (See Table 1)

vii
Figure 10 Photograph of Blue Plastic Bag, Showing Locations of LFP 17 181

(Near Top Edge) and LFP 20

Figure 11 Interruptions to Ridge Flow 186

Table 1 Differences in Appearance Between LFP 17 and the Mayfield 162

Print (See Figures 9A-9F)

Table 2 Point _Types" in Mayfield Misidentification 171

viii
TABLE OF APPENDICES

Appendix A Organizational Chart for the Counterterrorism Division

Appendix B Green's Charted Enlargements and Textual Descriptions for

April 21 Meeting in Spain

Appendix C Meagher's Charted Enlargements of the Daoud

Identification

Appendix D Verifying Examiners' Charted Enlargements of the Daoud

Identification

Appendix E Peer Reviewer's Charted Enlargements of the Daoud

Identification

Appendix F Standard Operating Procedures for Examining

Friction Ridge Impressions

Appendix G SWGFAST Friction Ridge Examination Methodology for

Latent Print Examiners

Appendix H SWGFAST Standards for Conclusions

Appendix I Level Two Details Used To Identify Both Mayfield and Daoud

(Figures 6A-6C)

Appendix J Level Two Details Utilized in Mayfield Identification but

Lacking Correspondence in Daoud Exemplars

(Figures 7A-7C)

Appendix K FBI Response

Appendix L December 13, 2005 Letter from U.S. Attorney

Karin Immergut to Glenn A. Fine, Inspector General

ix
[BLANK PAGE]
EXECUTIVE SUMMARY

In May 2004, the Federal Bureau of Investigation (FBI) arrested

Brandon Mayfield, an Oregon attorney, as a material witness in an

,,;.....v_o_;_;_'_L,_L.u,Iof _'_,e terrorist _t__'_tt_t__'-- on commuter trains in Madrid, Spain, in

March 2004. Mayfield had been identified by the FBI Laboratory as the source

of a fingerprint found on a bag of detonators in Madrid that was connected to

the attacks. Approximately two weeks after Mayfield was arrested, the Spanish

National Police (SNP) informed the FBI that it had identified an Algerian

national as the source of the fingerprint on the bag. After the FBI Laboratory

examined the fingerprints of the Algerian, it withdrew its identification of

Mayfield and he was released from custody.

As a result of these events, the Office of the Inspector General (OIG)

initiated an investigation into the misidentification, investigation, and detention

of Mayfield. We sought to determine the causes of the misidentification and to

assess the FBI Laboratory's responses to the error. We also examined whether

the FBI used the USA PATRIOT Act (Patriot Act) in connection with the

........ Sc_,u** u_ svxay_lt_,u, w_l_tiici uic r Dl L_tl-gULUQ iviaynelci because of his

Muslim religion, and whether the FBI's representations to the UnitedStates

District Court in support of the requests for a material witness warrant and

search warrants were accurate. In addition, we examined Mayfield's conditions

of confinement and whether they were consistent with the material witness

statute.

I. Background

On March 1 1, 2004, terrorists detonated bombs on several commuter

trains in Madrid, Spain, killing approximately 200 people and injuring more

than 1,400 others. The SNP recovered fingerprints on a bag of detonators

connected with the attacks and transmitted them to INTERPOL with a request

_'_ the _r_T T_.-_ ..... "_ .z' l...Jl .L_O.UUI i:/LUly p_ uviue assistance in identifying the fingerprints. On LI*CI. L

March 19, the FBI Laboratory's Latent Print Units (LPU) identified a United

States citizen, Brandon Mayfield, as the source of one of the fingerprints on the

bag, referred to as Latent Fingerprint Number 17 (LFP 17). Mayfield's

fingerprints had been initially retrieved, along with others, as a potential match

to LFP 17 based on a computerized search of millions of fingerprints in FBI

databases. This automated search by the FBI's Integrated Automated

Fingerprint Identification System (IAFIS) generated a list of 20 candidate prints

from the FBI's Criminal Master File. An FBI examiner then began side-by-side

comparisons of LFP 17 and the potential matches, one of which was Mayfield's

fingerprint. Following a detailed comparison of LFP 17 and Mayfield's known

fingerprint, the examiner concluded that Mayfield was the source of LFP 17.
This conclusion was verified by a second LPU examiner and reviewed by a Unit

Chief in the LPU, who concurred with the identification.

As a result of this identification, the FBI immediately opened an intensive

,iv,.o_a_.u. of Mayfield, including 24-hour surveillance. The FBI determined

that Mayfield was an attorney in Portland, Oregon. The FBI also learned,

among other things, that Mayfield was a Muslim who had married an Egyptian

immigrant, had represented a convicted terrorist in a child custody dispute in

Portland, and had contacts with suspected terrorists. However, the FBI's

investigation did not turn up any information specifically linking Mayfield to

the Madrid train attacks.

As part of the investigation, the FBI obtained authority to conduct covert

electronic surveillance and physical searches of Mayfield pursuant to the

Foreign Intelligence Surveillance Act of 1978 (FISA). 1 The FBI's electronic

surveillance of be and included, among other things,

monitoring The FBI also conducted FISA-authorized

searches of Mayfield's law office on and of the Mayfield residence on

"" I 'f

I"

On April 13, the FBI learned that the SNP Laboratory's examination of

Mayfield's fingerprints had yielded a "negativo" (negative) result. The FBI

therefore dispatched an examiner to meet with the SNP in Madrid on April 21

to explain the basis of the FBI's identification of LFP 17 as belonging to

Mayfield. At the end of that meeting, the SNP Laboratory representatives said

they would reexamine Mayfield's fingerprints and LFP 17 in light of the FBI's

presentation.

In early May, the FBI began receiving media inquiries about a possible

American suspect in the Madrid bombings case. The FBI became concerned

that its investigation of Mayfield would become publicly known and that

Mayfield might flee or destroy evidence. As a result, on May 6 the FBI and

_,_1_1 _..,_1_ v, _ou_._ t_u! _Ltu_ys ctppu_u Lu ul_ uxuL_u States District

Court in Oregon for a warrant to detain Mayfield as a "material witness"

1 FISA provides for the use of, among other things, covert electronic surveillance and

physical searches to gather foreign intelligence information. To obtain FISA authorization to

conduct covert surveillance and searches, the government must submit a written application to

a special court, the Foreign Intelligence Surveillance Court (FISA Court), which has the

authority to grant or deny the application. The written application must establish, among

other things, probable cause for the FISA Court to find that the target of the surveillance and

searches is either a foreign power or an agent of a foreign power, and that a significant purpose

of the surveillance and searches is to obtain foreign intelligence information. A foreign power is

defined broadly to include any group engaged in international terrorism.
pursuant to 18 U.S.C. § 3144. 2 The FBI and DOJ also applied to the Court for

criminal search warrants for Mayfield's home and office. The FBI submitted

affidavits to the Court in support of these requests. On the basis of the

representations in these affidavits, the Court issued the material witness

warrant _ _"a _. _,,,u u,e criminal search warrants.

The FBI arrested Mayfield on May 6 and executed the search warrants

that same day, seizing evidence from his home and office. When Mayfield was

brought before the Court on May 6, he denied that the fingerprint on the

detonator bag was his and said he had no idea how it got there. The Court

denied Mayfield's request to be released to home detention and he was

incarcerated at the Multnomah County Detention Center (MCDC) in Portland,

Oregon.

On May 17, the Court appointed an independent expert to review the

FBI's fingerprint identification. On May 19, the independent expert concurred

with the FBi's identification of LFP i7 as being Mayfield's fingerprint.

i Iu vv b v bl, Oi_ tilE, OCUlIg UtlJ, iVl_J I_ tll_ Ol_r IIIIUI-IIIUtl the FBI that it had

positively identified LFP 17 as the fngerprint of a different person, an Algerian

national named Ouhnane Daoud. At the request of the Portland prosecutors,

the Court released Mayfield to home detention on May 20. After reviewing

Daoud's prints, the FBI Laboratow withdrew its identification of Mayfield on

May 24, and the government dismissed the material witness proceeding.

The FBI initially provided a variety of explanations for the fingerprint

misidentification, including the poor quality of the digital image of LFP 17, lack

of access to the original fingerprint on the bag of detonators, and the similarity

of LFP 17 to Mayfield's fingerprint.

After the FBI withdrew its identification, it convened a 2-day session with

an International Panel of fingerprint experts to determine how the examination

_LFP 17 _:1^_ _._.a __, ............. _,__.__ _ ul ' lall_u cuiu to luet_ l_CUiilillUIiUaL1ons for changes in FBi fingerprint

procedures. The Panel met at the FBI Laboratory in June 2004, and was

provided information about the Mayfield case. Several panelists concluded that

the initial examiner failed to conduct a complete analysis of LFP 17 before

conducting the IAFIS search, which in turn caused him to disregard important

differences in appearance between LFP 17 and Mayfield's known prints.

Several panelists cited overconfidence in the power of IAFIS and the pressure of

working on a high-profile case as contributing to the error. Some panelists

2 Pursuant to 18 U.S.C. § 3144, a court may order the arrest of a person if it appears

that the testimony of the person is material to a criminal proceeding, and it is shown that it

may become "impracticable to secure the presence of the person by subpoena."
stated that the verification was "tainted" by knowledge of the initial examiner's

conclusion. The panelists made recommendations for changes in the FBI

Laboratory, including expanded documentation requirements and modified

verification procedures.

On July 16, the FBI Laboratory issued a formal report identifying Daoud

as the source of LFP 17.

In October 2004, attorneys for Mayfield filed a civil action against the

FBI, DOJ, and several individuals. The complaint includes claims for violations

of Mayfield's civil rights, violations of the Privacy Act, and violations of the

United States Constitution in connection with the FBI's investigation and

arrest of Mayfield.

II. The Methodology of the OIG Investigation

The OIG's investigation examined the conduct of the FBI in the Mayfield

,....... _t .oo_ n-_..... _ . Ol_,_._.,,_t. .u.k_uj_t_v_ .._ .... x_ __ u_ uic t_Jl___ b ,-,,,_,_ tig inves ation were: (i) Lo determine

the causes of the fingerprint misidentification; (2) to assess the Laboratory's

responses to the error and, if appropriate, to make additional recommendations

for changes in Laboratory procedures to prevent future errors of this type; (3) to

determine whether the FBI unfairly targeted Mayfield in the fingerprint

identification or in the ensuing investigation because of his religion; (4) to

assess the FBI's conduct in the investigation and arrest of Mayfield; (5) to

assess the FBI's conduct in making certain representations to the United

States District Court in support of the requests for a material witness warrant

and search warrants; and (6) to assess the conditions under which Mayfield

was confined prior to his release.

The OIG's investigation was conducted by a team of attorneys and a

program analyst. The OIG interviewed approximately 70 individuals, including

_. ou_,,_, from the D"a,.,oT,_uu,,L_,_ .... _........L_u_sm" --- o_cuon_--_'-(CTS),the DOJ Office of

Intelligence Policy and Review (OIPR), the FBI Laboratory, and the FBI

Counterterrorisrn Division (CTD). In Portland, Oregon, the OIG interviewed

personnel from the Portland Division of the FBI, the United States Attorney's

Office (U.S. Attorney's Office), the United States Marshals Service (USMS), the

Multnomah County Sheriff's Office (MCSO), and the Multnomah County

Detention Center (MCDC). The OIG also interviewed four officials of the SNP by

telephone. In addition, the OIG interviewed two members of the International

Panel of fingerprint experts convened by the FBI Laboratory, as well as the

Executive Director of American Society of Crime Laboratory Directors/

Laboratory Accreditation Board (ASCLD/LAB), the organization responsible for

accrediting the FBi Laboratory. Mayfieid's attorneys declined the OIG's request

to interview Mayfield.
In addition, the OIG reviewed thousands of pages of documents

generated by the FBI, DOJ, the U.S. Attorney's Office, the USMS, and the

MCDC pertaining to the fingerprint identification and the investigation, arrest,

and detention of Mayfield. This documentation included e-mails, internal

memoranda and reports, notes, briefing materials, policy and procedural

manuals, timelines, and investigative records, as well as pleadings, transcripts,

and orders from court proceedings.

In evaluating the causes of the fingerprint misidentification, the OIG

consulted with three distinguished latent fingerprint examiners outside the FBI

Laboratory: John D. "Dusty" Clark, formerly of the California Department of

Justice and currently with the Western Identification Network; Michael R.

Grimm, a Forensic Supervisor with the Virginia State Police; and John R.

Vanderkolk, Regional Laboratory Manager for the Indiana State Police. These

expert consultants were selected for their achievements and reputations within

the latent fingerprint community and for the diversity of viewpoints that they

have expressed within the latent fingerprint discipline.

ill ctuuluuil LU tiIC LJi_/ _ ICVICW, LII_ l.)k_)O UIII(]_ UI r'i-oiCSslonal

Responsibility (OPR) also conducted an investigation into aspects of the

Mayfield case that involved the conduct of Department attorneys. Initially, the

OIG intended to investigate the entire Mayfield matter, including the conduct of

DOJ attorneys working with the FBI. We believed that one DOJ oversight

entity should investigate the matter, and we also concluded that the O!G had

jurisdiction under Section 1001 of the Patriot Act to investigate allegations of

civil rights or civil liberties abuse made against all DOJ employees, including

DOJ attorneys. However, OPR disagreed, stating that it has the authority

generally to investigate allegations involving the professional conduct of DOJ

attorneys. Eventually, the Deputy Attorney General decided that OPR would

investigate the conduct of DOJ attorneys in the Mayfield case and the OIG

would investigate the actions ofthe FBI.

As a _dlt, urr_ t_tulcl tll_tll the ulo)'-"'_'evaiua_ecl' ' -' DOJ attorneys conduct

in the Mayfield case, such as the decision to obtain a material witness warrant

and the accuracy and sufficiency of the evidence presented by attorneys in

support of the warrant. In addition, OPR examined representations made by

DOJ attorneys in connection with their request that Mayfield be held in

custody and the decision by DOJ attorneys to include certain information

about Mayfield in court pleadings.

III. Organization of the OIG Report

The OiG's Report is divided into seven chapters. Chapter One provides

an introduction to the report, including the methodology of the OIG's
investigation. Chapter Two sets forth a detailed chronology of events regarding

Mayfield's fingerprint identification, investigation, arrest, detention, and

subsequent release. Chapter Three provides background information regarding

fingerprint identification issues, including a description of the operations of the

FBI's " n,, _,_,ru anu an overview of the ' ...... latenL fingerprint examination process utilized

by the Laboratory.

Chapter Four contains the OIG's substantive review of the causes of the

erroneous fingerprint identification. Chapter Five presents a review of the

Laboratory's responses to the error, including various reforms underway in the

LPU, and additional OIG recommendations for the FBI Laboratory.

Chapter Six evaluates the conduct of the FBI with respect to its

investigation and arrest of Mayfield. It addresses the issue of whether Mayfield

was improperly targeted because of his religion, examines the FBI's use of FISA

and the Patriot Act in the investigation, and assesses representations made by

the FBI in affidavits submitted in support of the requests for a material witness

warrant and criminal search warrants. Chapter Six also examines Mayfield's

O_V_ll kiLlllllllk:k L_L)I IL;1LI _1(31"-I_ .llE_5 tll_ k.llk_l bUIIUILIUII_ UI IJUIIIIII_III_IIL. _.vll_l.ptlZ_l

IV. OIG Assessment of the Causes of the Misidentification

In this section of the Executive Summary, we discuss the O!G's

assessment of the causes of the FBI Laboratory's misidentification of LFP 17.

A. The Primary Causes of the Error

The OIG found several factors that caused the FBI's misidentification of

the fingerprint. The unusual similarity between LFP 17 and Mayfield's known

fingerprint was a major factor in the misidentification that confused three

experienced FBI examiners and a court-appointed expert. However, we

l,_J--J .,L.I_ .,L.,L I I

uunu_uu_u that m_ examiners commiLLea errors in Lhe examination proceclure,

and that the misidentification could have been prevented through a more

rigorous application of several principles of latent fingerprint identification.

I. The unusual similarity of the prints

In identifying Mayfield as the source of LFP 17, the FBI examiners relied

in significant part on the relationship of "minutiae" or "points" within the

prints. These points are places where individual ridges in the fingerprint end

("ending ridges") or split ("bifurcations"). Ten of the points in LFP 17 that were

used to identify Mayfield were also later used by different FBI examiners to
identify Daoud as the source of the print. These 10 features in LFP 17 formed

a constellation of points that was generally consistent with the constellation of

points in the known fingerprints of both Mayfield and Daoud. The unusual

similarity is reflected in the relative location of the points, the orientation of the

ridges coming into the points, and the number of intervening ridges between

the points. Although the OIG found no systematic study of the rarity of such

an event, anecdotal reports suggest that this degree of similarity between prints

from two different people is an extremely unusual circumstance.

Despite the unusual similarity in the relationship between points on the

Mayfield and Daoud prints, however, Mayfield and Daoud did not have

identical fingerprints. In several instances, a bifurcation in one print

corresponded to an ending ridge in the other. There were also other subtle but

important differences between the prints in the positioning of the features. But

the unusual similarity in position and ridge counts was a critical factor that

misled four examiners and contributed to their overlooking other important

differences between LFP 17 and Mayfield's fingerprint.

m auuluon, the tvlayllelG case illustrates a particular hazard of the iAFiS

computer program. IAFIS is designed to find candidate fingerprints having the

most minutiae arrangements similar to the encoded minutiae from the latent

print. These candidates should include the correct match of the print (if it is in

the FBI database), but will also include the closest possible non-matches. In

this case, the true source of the" print was not in the !AFIS database, but the

computer found an unusually close non-match. The enormous size of the

IAFIS database and the power of the IAFIS program can find a confusingly

similar candidate print. The Mayfield case demonstrates the need for

particular care in conducting latent fingerprint examinations involving IAFIS

candidates because of the elevated danger of encountering a close non-match.

2. Bias from the known prints of Mayfield

The unusual similarity of the Mayfieid and Daoud fingerprints was not

the sole cause of the misidentification. The OIG found that a significant cause

of the misidentification was that the LPU examiners' interpretation of some

features in LFP 17 was adjusted or influenced by reasoning "backward" from

features that were visible in the known prints of Mayfield. This bias is

sometimes referred to as "circular reasoning," and is an important pitfall to be

avoided. Having found as many as 10 points of unusual similarity, the FBI

examiners began to "find" additional features in LFP 17 that were not really

there, but rather were suggested to the examiners by features in the Mayfield

prints. As a result of this process, murky or ambiguous details in LFP 17 were

erroneously identified as points of similarity with Mayfield's prints.

7
3. Faulty reliance on extremely tiny (Level 3) details

The OiG also found that the FBI examiners gave significant weight to the

purported agreement between extremely tiny details in LFP 17 and Mayfield's

•Inge, p**_,_. These details, including shapes interpreted as individual pores,

incipient dots between ridges, and ridge edges, are known as "Level 3" details.

Because Level 3 details are so small, the appearance of such details in

fingerprints is highly variable, even between different fingerprints made by the

same finger. As a result, the reliability of Level 3 details is the subject of some

controversy within the latent fingerprint community.

The OIG found that none of the purported Level 3 features in LFP 17

used to identify Mayfield corresponded to features in the known prints of the

true donor (Daoud). Thus, unlike the case with larger details, the examiners

were not confused by any unusual similarity in Level 3 details on the fingers of

Mayfield and Daoud. Rather, they apparently misinterpreted distortions in LFP

17 as real features corresponding to Level 3 details seen in Mayfield's known

fingerprints.

There were several indications available to FBI examiners at the time of

the identification that the purported Level 3 similarities did not provide reliable

support for the identification. Although several different examples of Mayfield's

known fingerprints were available to the FBI, some of the details that the FBI

examiners considered to be important were only visible on one version of those

fingerprints, suggesting the possibility that these details were not reliable

characteristics for identification. In addition, the examiners involved in the

identification appear to have relied on selected Level 3 similarities, while

dismissing or discounting other apparent Level 3 details, such as pores, ridge

edge shapes, and small between-ridge details in LFP 17, that were not in

agreement with the known Mayfield fingerprints. Several other examiners

interviewed by the OIG questioned whether the clarity of LFP 17 was sufficient

to support any reliance on Level 3 details. The OIG concluded that the

examiners'_l; .... T.... 1 3 _:I_ " _-:- " '-- '

•.**a11._ on _v_, U_tCtll_b in Cili_ case was niispiaceci and

contributed to the erroneous identification.

4. Inadequate explanations for differences in appearance

FBI fingerprint examiners are governed by the "one discrepancy rule" in

which a single difference in appearance between a latent print and a known

fingerprint must preclude an identification unless the examiner has a valid

explanation for the difference. Latent fingerprint identifications are subject to a

standard of 100 percent certainty. Implicit in this standard is the requirement

that the examiner have equivalent certainty in the validity of each explanation

for each difference in appearance between prints.

8
The OIG found that the available information did not support this degree

of certainty for the explanations that the examiners adopted for several

differences in appearance between LFP 17 and Mayfield's fingerprint. For

example, the FBI recognized that the entire upper left portion of LFP 17 did not

correspond with _ ""_" M_yimm s fingerprint. The examiners explained this difference '_'

as being the result of a separate touch, possibly by a different finger or a

different person. This explanation required the examiners to accept an

extraordinary set of coincidences. The OIG found that the support for this

explanation was, at best, contradictory. Although there was a gap in the

fingerprint separating the upper left portion from the rest of the print, the ridge

flow was consistent across the gap, suggesting a single touch. Most of the "red

flags" that would typically indicate a second touch were not present in LFP 17.

Deposition pressure was consistent in both parts of the print, indicating that

both areas were part of a single print. In light of this conflicting information,

the FBI examiners should not have found sufficient certainty in the "double

touch" explanation to support an identification.

There were several other differences between LFP 17 and Mayfield's

_,-,,t_"",,'_',,-s,--_ - ;"..... t,,--;'+L. Althou _,1_ _Xplm_ctuun_ u_aL m_ examiners gave for each

difference were individually plausible, they cumulatively required too many

rationalizations to support an identification with the requisite certainty. The

OIG concluded that the FBI examiners did not apply a sufficiently stringent

standard for their explanations and thereby failed to appropriately apply the

"one discrepancy rule."

5. Failure to assess the poor quality of similarities

The OIG also found that the FBI examiners failed to give adequate

consideration to the incomplete nature of the agreement in points between

LFP 17 and Mayfield's fingerprint. As previously described, there was a

constellation of as many as 10 points in LFP 17 that bore an unusual similarity

to points in the Mayfield fingerprint. However, the limited clarity of LFP 17

_,__ _ examiners from mai-cing an accurate determination of the type of

many of these points (that is, whether they were ending ridges or bifurcations).

The OIG found that many of the points utilized by the FBI to support the

identification suffered from this shortcoming (ambiguity as to feature type), and

that accordingly the "quality" of the agreement was inadequate to support the

conclusion of identification.

6. Failure to reexamine LFP 17 following the April 13

Negativo Report

The FBI Laboratory missed an opportunity to catch its error when the

SNP informed the FBi on April i3 that it had reached a "negativo" (negative)

conclusion with respect to matching LFP 17 to Mayfield's fingerprints. At that
time, the FBI Laboratory did not adequately explore the possibility that it had

erred in identifying Mayfield. Moreover, the FBI examiners did not attempt to

determine the basis of the SNP's doubts before reiterating that they were

"absolutely confident" in the identification on April 15, a full week before the

FBI Laboratorz_-met with the SNP. We believe that the FBi Laboratory's

overconfidence in the skill and superiority of its examiners prevented it from

taking the "April 13 Negativo Report" as seriously as it should have. A better

response to a conflicting determination by another forensic laboratory would

have been first to determine the complete basis for the other laboratory's

disagreement before committing anew to the validity of the original

determination, and also to arrange for a fresh examination of the relevant

prints by a new examiner who had not previously committed himself to a

particular conclusion. The FBI Laboratory took neither of these steps.

B. OIG Assessment of Other Potential Sources of Error

The OIG evaluated three additional factors that potentially caused the

FBI's erroneous identification. While we can not definitively state that these

umci_nL potential for

other erroneous identifications to merit discussion in this report and

recommendations for changes in the FBI Laboratory.

First, the OIG examined whether the standard used by the FBI

Laboratory for declaring an identification contributed to the error. The FB!

Laboratory employs the "Ridgeology Standard" for identification, which does

not require the agreement of a predetermined minimum number of

characteristics (sometimes referred to as a "Numerical Standard"), but rather

emphasizes the expert examiner's assessment of the quality of agreement as

well as the quantity. The OIG concluded that the error would not necessarily

have been avoided by the application of a Numerical Standard. The examiners

believed that they had found at least 15 "points" in LFP 17 in agreement with

Mayfield's fingerprint, which would have satisfied the 12-point threshold

--J ..... L__I 1 - "I_T....... *. - -1 _ 1 1

_uvu_L_U oy many proponents of a i_um_rlcai _tanciarcl, and the threshold

used in several other countries (including Spain). The methodological errors

committed by the examiners - such as applying circular reasoning and failing

to apply the "one discrepancy rule" with adequate rigor - could lead to an

erroneous identification under either the Ridgeology Standard or a Numerical

Standard. However, we agree with the Laboratory's decision following discovery

of the error to research and develop more objective standards for fingerprint

identification.

Second, the OIG examined whether the FBI's verification procedures

contributed to the error. FBI procedures require that every identification be

verified by a second examiner. However, under procedures in place at the time

of the Mayfield identification, the verifier was aware that an identification had

10
already been made by a prior FBI examiner at the time he was requested to

conduct the verification. Critics of this procedure assert that it may contribute

to the expectation that the second examiner will concur with his colleague. It

was difficult for the OIG to assess whether the FBI's verification procedures

L;UIILIIULILCU LU LIIC IVI_LVIICIU _IIUI, pl-llIlail-lly because the retired examiner who

verified the Mayfield identification declined to be interviewed for this

investigation, and because he was not required to document the features or

mental processes that led to his conclusion. Yet, the OIG found it significant

that the court-appointed expert reached the same conclusion regarding the

identification. The pressures that might cause an FBI examiner to hesitate to

dispute a colleague's identification should not have impacted the independent

expert's impartiality. Thus, the OIG did not find compelling evidence that the

FBI's verification procedures introduced a bias that prevented or discouraged

the official verifier from challenging the identification in this case. The OIG

believes, however, that the existing Laboratory procedures could be improved

to assure that verifications involve complete and independent examinations

and provide a more stringent safeguard against erroneous identifications.

illliu 9 tiib vi_l bUiiOiUEiEti WlIELIIEI tll_ lJl_55tll_ UI ......_-: .... on a

high-profile terrorism case was a significant contributing cause of the error in

this case. We found no evidence to support this conclusion. FBI examiners

work on many high-profile cases without committing such errors. In addition,

the examiners were unable to identify most of the latent fingerprints submitted

by the SNP as part of its investigation of the Madrid bombings, and the

pressure to identify LFP 17 was no greater than the pressure to identify the

other prints. The OIG did find, however, that the FBI Laboratory's stated

criteria,for reporting an '(inconclusive" result from a latent fingerprint

examination could result in implicit pressure on the examiner to make an

identification in a difficult comparison in a case involving a particularly

heinous crime, and the OIG recommends that the FBI take several specific

steps to reduce any such pressure in the future.

The OIG also investigated whether the FBI fingerprint examiners were

aware of and improperly influenced by knowledge of Mayfield's religion when

they made the identification of LFP 17. We determined that the FBI examiners

were not aware of Mayfield's religion at the time they concluded Mayfield was

the source of LFP 17. The records available to the examiners did not reveal his

religion, his marriage to an Egyptian immigrant, or his representation of other

Muslims as an attorney. The OIG found no evidence that the FBI Laboratory

had knowledge of Mayfield's religion until the FBI Portland Division learned

this fact in the early stages of the field investigation, after the identification had

been made and verified by the FBI Laboratory.

11
However, whether Mayfield's religion was a factor in the Laboratory's

failure to revisit its identification and discover the error in the weeks following

the initial identification is a more difficult question. By the time the SNP

issued the April 13 Negativo Report, the Laboratory examiners had become

aware of :- _.... _'- _ "--- j l,.ul,l_uun about Mayfield obtm_u in the course of the Portland

Division's investigation, including the fact that Mayfield had acted as an

attorney for a convicted terrorist, had contacts with suspected terrorists, and

was a Muslim. One of the examiners candidly admitted that if the person

identified had been someone without these characteristics, like the "Maytag

Repairman," the Laboratory might have revisited the identification with more

skepticism and caught the error.

The OIG concluded that Mayfield's religion was not the sole or primary

cause of the FBI's failure to question the original misidentification and catch its

error. The primary factors Were the similarity of the prints and the

Laboratory's overconfidence in the superiority of its examiners. However, we

believe that Mayfieid's representation of a convicted terrorist and other facts

developed during the field investigation, including his Muslim religion, also

icuiui _ LU _Ulllt;l_lltly I-_CUIISltl_r the

identification after legitimate questions about it were raised.

D. Explanations Found by the OIG Not To Have Contributed to

the Error

The OIG found that several explanations for the error proposed by

various sources, including FBI Laboratory spokespersons, were not persuasive.

First, the OIG reviewed the FBI's initial claim that the FBI's lack of

access to the original evidence on which LFP 17 was deposited was a cause of

the error. The FBI examiners made the identification of Mayfield based on a

digital photograph provided by the SNP, and the examiners did not have access

to the original bag with the fingerprint. Some FBI examiners suggested that

+1,_;,-, 1_,r,1_- ,-,i" ..... _-_...1 _-1..._

_.o ,_. _i __ p,_v_,t_u ui_ FBI from _ ........ " u_rmining, from the positioning of -:

several fingerprints on the evidence, that LFP 17 was made by a right middle

finger, not by a left index finger (the Mayfield digit to which it was erroneously

matched). Although the positioning of the prints on the evidence certainly

suggested the possibility that LFP 17 was made by a right middle finger, that

finger was not the only plausible digit. The OIG reviewed the evidence and

concluded that, contrary to the FBI's claims, having access to the bag would

not necessarily have prevented the LPU from misidentifying Mayfield.

FBI spokespersons also offered another explanation immediately after the

error was discovered: that the FBI was working with a degraded or distorted

third-generation digital image of LFP 17 provided by the SNP. The OIG found

12
that although there was a modest improvement in clarity in the photographic

image of LFP 17 that the SNP eventually made available to the FBI, the quality

of the digital image initially supplied to the FBI did not cause the error.

We also examined the suggestion made by Laboratory spokespersons

that the initial examiner should have determined that LFP 17 was not "of

value" for identification because there were many lines of separation or

demarcation in the fingerprint creating interruptions to ridge flow. The OIG

found that this explanation was inconsistent with the Laboratory's subsequent

determination that the fingerprint was in fact suitable for comparison and

could be identified as being made by Daoud. The OIG concluded that the

purported interruptions to ridge flow within LFP 17 were not a cause of the

erroneous identification.

We also considered the suggestion by some members of the International

Panel that the FBI examiners were misled by an excessive faith in the IAFIS

technology. The OIG did not find this explanation to be persuasive. The FBI

examiners were aware that many IAFIS searches do not result in

identifications, and the initial examiner conducted IAFIS searches of at least

seven other latent fingerprints submitted by the SNP without declaring an

identification. IAFIS did not suggest a single candidate to the FBI examiners; it

generated a list of candidate fingerprints from which the initial examiner found

Mayfield.

V. OIG Assessment of the FBI Laboratory's Responses to the Error

Following discovery of the misidentification, the FBI Laboratory initiated

several actions, including: (1) an internal review of LPU policies and

procedures, (2) a review of prior IAFIS identifications from digital prints, (3) a

monthly review of prisoners scheduled for capital punishment who may have

been convicted or sentenced based on an FBI fingerprint identification, and

(4) corrective action with respect to the examiners involved in the Mayfield

misidentification.

The OIG concluded that these are significant steps, and we concur with

many of the reforms that the Laboratory has adopted, particularly with respect

to the development of more objective criteria for declaring an identification,

revision of the Standard Operating Procedures (SOPs) to provide greater detail

and more specific procedures, and establishment of meaningful minimum

documentation requirements for identifications. These reforms will result in

significant modifications of practices in the LPU of the FBI Laboratory that we

believe will help prevent future errors.

13
However, we found that the actions proposed by the Laboratory were not

fully responsive to the issues raised by the Mayfield misidentification and that

additional or more specific modifications to Laboratory practices should be

adopted. Accordingly, the OIG made additional recommendations. These

include recommendations that the Laboratory develop criteria for the use of

Level 3 details to support identifications, clarify the "one discrepancy rule" to

assure that it is applied in a manner consistent with the level of certainty

claimed for latent fingerprint identifications, require documentation of features

observed in the latent fingerprint before the comparison phase to help prevent

circular reasoning, adopt alternate procedures for blind verifications, review

prior cases in which the identification of a criminal suspect was made on the

basis of only one latent fingerprint searched through IAFIS, and require more

meaningful and independent documentation of the causes of errors as part of

the Laboratory's corrective action procedures.

VI. Analysis of the Investigation, Arrest, and Confinement of Mayfieid

lilt[; VII,_I i;tl_U IISVII:;WI:U LIII: I'DI _ L,UIIUU.L,L III tllq:;IIIVEbLI_CI. LIUII CI.IIU i_1.111:_)t

of Mayfield that followed the FBI Laboratory's identification of him as the

source of LFP 17. This portion of our review included an examination of

whether the FBI used the Patriot Act in connection with the investigation and

an assessment of the role of Mayfield's religion in the FBI's field investigation.

We also examined the accuracy and completeness of the FBI's representations

in affidavits filed in support of the material witness and criminal search

warrants. Finally, we examined the effect of media leaks on Mayfield's arrest

and issues related to his conditions of confinement.

A. Effect of the Patriot Act on the Mayfield Investigation

In the following sections, we summarize the OIG analysis of the Patriot

Act provisions that may have had an impact on the Mayfield investigation. We

co_lc,,_.udeu that "--' .,_ _1 tll_ l-'dtl l_t ACL ._-A_ ^ .... _1 .... _,o ^ _tlll_llUn"lEllt_ to did not -_ .... ""..... '-- P 10i'l. _illl3tCL ClLII_I LIIC

government's decision to seek FISA search and surveillance authority in the

Mayfield case or the scope of information the government collected about

Mayfield pursuant to FISA. We found that the FBI likelywould have sought

and been able to obtain FISA authorization for the searches and surveillance

even without the Patriot Act amendments to FISA. We also found that,

contrary to public speculation after Mayfield's arrest, the FBI did not use

certain provisions of the Patriot Act in the Mayfield case. However, the Patriot

Act did affect the sharing of information about Mayfield with law enforcement

agents and intelligence agents and the amount of information that the

government collected through the use of National Security Letters (NSLs).

14
1. Sections 218 and 504 of the Patriot Act

As mentioned previously, the FBI obtained authority to conduct covert

surveillance and searches of Mayfield pursuant to FISA. To obtain FISA

authority, the government must submit an application to the FiSA Court

certifying that a significant purpose of the requested surveillance and searches

is to gather foreign intelligence information. The application must also

establish probable cause for the FISA Court to find that the target of the

requested surveillance and searches is either a foreign power or an agent of a

foreign power. A foreign power is defined broadly to include any group engaged

in international terrorism.

Prior to the Patriot Act amendments, FISA required the government to

certify that '_the purpose" of the requested surveillance was to gather foreign

intelligence information. In assessing such requests, the Department of

Justice and courts applied the "primary purpose" test. This allowed the use of

FISA-derived information in a criminal case only if the primary purpose of the

FISA surveillance or search was to gather foreign intelligence information

_,_ _,o,, _.... _,,_ __._-__1 i tig ti

Beginning in the 1980s, the Department of Justice developed procedures

that limited the circumstances under which information from intelligence

investigations could be shared with criminal prosecutors and criminal law

enforcement personnel. As a result, a "wall" developed between Department

intelligence personnel and criminal personnel that limited information sharing.

In addition, while pre-Patriot Act FISA-derived information could be shared

freely with intelligence agencies such as the Central Intelligence Agency (CIA)

and the National Security Agency, that same information could not be shared

with criminal law enforcement officials without consultation and approval from

senior officials in the Department of Justice.

Section 218 of the Patriot Act amended FISA to replace the phrase "the

,,,,_,,_o_,, ,,,_k _ phrase "a " "_"....... __o_ _ _,,_ signmcanL purpose.- Accordingly, the government

can now obtain a FISA warrant by showing that the collection of foreign

intelligence information is a "significant purpose" of the investigation, rather

than the primary purpose as under the previous standard. In addition, Section

504 of the Patriot Act amended FISA to specify that intelligence investigators

conducting FISA surveillance or searches may consult with criminal

investigators to coordinate efforts to investigate or protect against international

terrorism.

To determine if the Patriot Act affected the course of the Mayfield

investigation, the OIG examined whether the government, prior to the Patriot

Act, would have sought FISA authority to conduct covert searches and

15
surveillance of Mayfield, and whether FISA authority could have been obtained

under the more rigorous pre-Patriot Act primary purpose standard.

Based on our interviews and review of the evidence known to the FBI

when it made the decision to seek emergency FiSA authority, we concluded

that the government likely would have proceeded with a FISA application even

before the Patriot Act. Witnesses from the FBI and DOJ who worked on the

Mayfield matter and had both pre-Patriot Act and post-Patriot Act experience

stated that even before the Patriot Act, the government would have treated the

Mayfield matter at the outset primarily as an intelligence case rather than a

criminal case. All of the witnesses stated that the primary purpose at the

outset of the Mayfield investigation was to collect foreign intelligence

information and that the prospect of criminal prosecution of Mayfield was

incidental. In addition, some of the witnesses expressed doubts that the

government could have obtained the electronic surveillance information it

sought had it attempted to use traditional criminal investigative methods.

We concluded that the Patriot Act did not affect the government's

decision to pursue _'_ ....... '.... -' ....... "" ....... '.... "_--"-- _'-'- 111 [11115 r lO/-_ 15CaICII aIIU 15tlIVCIII£1IICC auulurlty niatter.

Further, we believe that the government could have met the more stringent

primary purpose standard that existed prior to enactment of the Patriot Act.

However, we found that the Patriot Act did affect the government's

dissemination of intelligence in_formation about Mayfield. By dismantling the

'_wall" between criminal and intelligence investigators, the Patriot Act allowed

the government to freely share intelligence information about Mayfield gathered

in the FISA surveillance and searches with prosecutors and other criminal law

enforcement officials. In addition, Section 203 of the Patriot Act allowed the

government to share grand jury information with the intelligence community,

some of which could not have been obtained and shared through intelligence

methods prior to the Patriot Act.

. National _....... ecur,ty Letters

We found that Section 505 of the Patriot Act also affected the amount of

information the government collected through the use of NSLs in the Mayfield

investi ation NSLs in the _field case g

Section 505 of

the Patriot Act relaxed the certification requirements for issuing NSLs to allow

issuance upon a showing that the information sought is '_relevant" to an

authorized investigation to protect against international terrorism, rather than

requiring specific and articulable facts that the information sought pertained to

an agent of a foreign power. Based on our review, we concluded that the FBI

, 16
may not have been able to meet the requisite certification under the more

rigorous pre-Patriot Act standard to issue some of the NSLs in the Mayfield

case.

3. Other Patriot Act provisions

The OIG found that, contrary to some public speculation about the

Mayfield case, certain other Patriot Act provisions either were not used in or

had no significant effect on the Mayfield investigation. For example, Section

213 of the Patriot Act authorizes delayed notification of the execution of

criminal search warrants, which are sometimes referred to as !'sneak and peek"

searches. We found that there were no such searches conducted in the

Mayfield investigation. The covert searches that were conducted of Mayfield's

home and office before his arrest were all conducted pursuant to a FISA

warrant, not pursuant to criminal search warrants. After his arrest, the

searches were based on overt criminal search warrants and the Patriot Act was

not implicated in those searches. _"

A __ _..1 .... n_ • ._, _ J A . 1

tmuul_ provision of the t_acrloc _cc, Section 206, amended FiSA to allow

the government to seek multi- or "roving"

Thus, Section

206 of the Patriot Act had no impact on the Mayfield investigation.

4. Conclusion regarding the impact of Patriot Act

amendments on the Mayfield investigation

In sum, the OIG concluded that the Patriot Act amendments to FISA did

not affect the government's decision to seek FISA authority in the Mayfield case

and did not affect the scope of information the government collected about

Mayfield pursuant to the FISA surveillance and searches. We also found that

the FBI did not use certain provisions of the Patriot Act in the Mayfield case,

such as those relating to delayed notification searches. Moreover, the evidence

indicated that, even prior to the Patriot Act, the FBI would likely have sought

and been able to obtain identical FISA authorization for the searches and

surveillance of Mayfield that it conducted.

However, the Patriot Act did permit a significant amount of information

about Mayfield to be shared with a wide variety of law enforcement agents and

intelligence agents that could not have been shared prior to the Patriot Act. By

dismantling the wall between intelligence and criminal investigations, the

Patriot Act allowed the government to freely share intelligence information

about Mayfield gathered in the FISA surveillance and searches with

prosecutors and other criminal law enforcement officials. The Patriot Act also

allowed the government to share grand jury information with the intelligence

17
community that could not previously have been shared. In addition, the

Patriot Act affected the amount of information the government collected

through use of NSLs in the Mayfield investigation by relaxing the certification

requirements for issuing NSLs.

We did not find any evidence that the FBI misused any of the provisions

of the Patriot Act in conducting its investigation of Mayfield. However, the

increased information sharing allowed by the Patriot Act amplified the

consequences of the FBI's fingerprint misidentification in the Mayfield case.

B. The Role of Mayfield's Religion in the Investigation

The OIG evaluated whether Mayfield's religion improperly influenced the

FBI's actions in the field investigation and arrest of Mayfield. As discussed

previously, the OIG concluded that the FBI did not initiate its investigation of

Mayfield because of his religion• The FBI Laboratory examiners did not know

Mayfield's religion when they made the initial fingerprint identification.

Similarly, when the Laboratory's fingerprint identification was communicated

LU LZZt5 t' l..)t %., I 1.2 ¢:tlIkA[ tll_ rUl tlttllU l_21VtkilUll, lil_ltIl_I" eli knew about eid's

religion. The FBI first learned of Mayfield's religion only after it had opened a

full field investigation of Mayfield to gather all intelligence available on him.

Thus, we concluded that Mayfield's religion played no role in the FBI's decision

to initiate a full field investigation of Mayfield.

In addition, we concluded that the field investigation of Mayfield was not

improperly influenced by the FBI's knowledge of Mayfield's religion. Some

government witnesses acknowledged, however, that Mayfield's religion was a

factor in the investigation. The FBI learned that the SNP believed the Madrid

bombings had been carried out by radical Muslims. Thus, several DOJ and

FBI witnesses stated that they expected to discover in investigating the case

that the suspects would be Muslim. For example, a Portland Assistant United

States Attorney (AUSA) called Mayfield's religious beliefs a _'mildly corroborating

factor " ,_, u_ r B_ w _t.__ _ , itnesses - -" -' '" " • sam Mayfield's renglon was not a factor in the

investigation, but that his contacts with other suspected terrorists were.

We concluded that the FBI's field investigation of Mayfield was initiated

because of and largely driven by the identification of his fingerprint on evidence

associated with the train bombings, not by his religious beliefs. We believe the

FBI would have sought covert search and surveillance authority irrespective of

Mayfield's religion. Moreover, we did not find evidence suggesting that the

investigation was prolonged because Mayfield is a Muslim.

In our view, the FBI's field investigation appropriately sought information

about a subject who had been positively identified by the FBI Laboratory as

having left a fingerprint on a bag of detonators found in Madrid. When the FBI

18
Laboratory continued to declare that the fingerprint was Mayfield's, we do not

believe it was unreasonable for FBI agents to aggressively pursue this

investigation.

C. The FBI's Participation in the Preparation of the Material

Witness and Criminal Search Warrants

Several FBI agents, a Laboratory Supervisory Fingerprint Specialist, and

the FBI's Legal Attach_ in Madrid participated in the preparation or review of

the affidavits submitted to the United States District Court in support of the

material witness and criminal search warrants. We examined the accuracy

and supportability of representations made in these affidavits. 3

We found that the affidavits contained several inaccuracies that reflected

a regrettable lack of attention to detail. In addition, we found the wording of

the affidavits to be troubling in several respects. In particular, the affidavits

provided anJambiguous description of the April 21 meeting between the FBI

,and the SNP, which apparently led the judge to believe that the SNP had agreed

wiul tll_ DDI _ llllg_l-pl-lllt _u_nulicanon. in Iacr, the SNP had on agreed to

conduct a reexamination of LFP 17. Finally, we believe the material witness

warrant affidavit contained an unfounded inference concerning the likelihood

of the existence of false travel documents regarding Mayfield.

D. The Role of Media Leaks in the Arrest of Mayfie!d

The FBI discovered in early May 2004 that several media outlets had

,inquired about an American suspect in the Madrid bombings. This information

_caused the FBI, in conjunction with the DOJ CTS and the Portland U.S.

Attorney's Office, to obtain a material witness and criminal search warrants on

May 6. The media leak disrupted the FBI's investigative plan, which had called

for the FBI to finish its intelligence gathering and analytical work concerning

Mayfield near the end of May. The FBI then intended to approach Mayfield in

_lly June and attempt to interview him voluntarily, but not necessarily arrest

him.

We found insufficient evidence to conclude that anyone in either the FBI

or the DOJ caused or contributed to the leak of information about Mayfield in

3 The Portland U.S. Attorney's Office participated in the drafting, editing, and approval

of the final versions of the affidavits. The DOJ CTS reviewed the affidavits (for legal sufficiency)

and made a recommendation to the Deputy Assistant Attorney General and Assistant Attorney

General of the Criminal Division regarding the final versions of the affidavits. The Deputy

Assistant Attorney General and the Assistant Attorney General were involved in the review and

approval of the final versions of the affidavits. As noted previously, DOJ OPR evaluated the

conduct of DOJ attorneys in this case.

19
order to facilitate his arrest. Further, we did not find sufficient evidence to

determine who leaked this information about Mayfield to the media.

E. The Conditions of Mayfield's Confinement

After Mayfield was arrested on the material witness warrant and the

Court denied his request to be released to home detention, the USMS assigned

Mayfield to be confined at the MCDC. From May 6 until May 12, he was

housed in the administrative segregation unit where he was kept in his cell for

up to 22 hours per day. On May 12, the MCDC moved Mayfield to the less

restrictive protective custody unit, where he was still housed in a solitary cell

but was permitted more recreation time outside his cell.

We found that Mayfield's conditions of confinement did not violate the

material witness statute. We also did not find evidence that Mayfield was

mistreated during his confinement. We found that he was housed under

conditions that were consistent with the normal practices of the USMS and the

MCDC for criminal defendants and material witnesses.

However, the OIG found that the MCDC failed to communicate important

information about Mayfield to appropriate prison personnel, including the

instruction to keep him separated from other prisoners for his own safety and

the fact that he had been booked under an alias to protect grand jury secrecy.

These failures resulted in an inadvertent disclosure of the alias to the media

and an unnecessary confrontation between Mayfield and a correctional officer

who did not know who he was and confronted Mayfield about his true identity.

F. Recommendations

As a result of our investigation, we provided a series of recommendations

to the FBI to address the problems we found in the Mayfield case. While we did

not find any intentional misconduct by FBI employees, either in the Laboratory

or by *_,_o_...... _,_u**_A"^_:"__.-u,_r B, **_,d investigation, we did find performance

issues by various FBI employees. Most significantly, we found a series of

systemic issues, particularly in the FBI Laboratory, that helped cause the

errors in the Mayfield case. While the FBI Laboratory has taken significant

steps to address these issues, we made a series of additional recommendations

to the FBI to address the Laboratory issues raised by the Mayfield

misidentification. We believe our recommendations, if fully adopted, can help

prevent similar errors in the future.

2O
CHAPTER ONE

INTRODUCTION

T B J.. ackground

This report sets forth the results of an investigation by the Office of the

Inspector General (OIG) into the misidentification, investigation, arrest, and

detention of Brandon Bieri Mayfield, an Oregon attorney. Mayfield was

arrested on a material witness warrant in connection with the terrorist attack

that took place on March 11, 2004, on commuter trains in Madrid, Spain. On

March 19, Mayfield was identified by the Federal Bureau of Investigation (FBI)

Laboratory Division as the source of a fingerprint found on evidence from the

Madrid attack recovered by the Spanish National Police (SNP). The FBI

immediately initiated an intensive investigation of Mayfield, including 24-hour

surveillance. Among other things, the FBI learned that Mayfield was a Muslim

and had represented a convicted Muslim terrorist in a child custody dispute.

On May 6, after receiving media inquiries about an American suspect in the

ivlauliu _oLOb, _ilb i'l-_i Ctli_J_tk_U iVI_ylIGIU 0n LIIG lllcttGlicti W" ness warrant.

OnMay 19, however, the SNP informed the FBI that it had identified an

Algerian national, Ouhnane Daoud, as the source of the fingerprint. After

receiving Daoud's prints, the FBI Laboratory withdrew its original identification

and the FBI apologized to Mayfield and his family. Mayfield was released from

detention on May 20 and the material witness proceeding against him was

formally dismissed on May 24.

The OIG initiated this investigation on June 16, 2004, approximately

three weeks after news of the FBI Laboratory's erroneous identification of

Mayfield became public. 4 The objectives of the OIG's review were' (1) to

determine the causes of the fingerprint misidentification and to assess the FBI

Laboratory's conduct in the matter; (2} to assess the Laboratory's responses to

_ _-_ if appropriate, to _A, ......... u,_ error _,,u, 1nerve additional r¢commenaanons for changes , ..

in Laboratory procedures to prevent future errors of this type; (3) to determine

whether the FBI unfairly targeted Mayfield in the fingerprint identification or in

the ensuing investigation because of his religion; (4) to assess the FBI's

conduct in the investigation and arrest of Mayfield; (5) to assess the FBI's

conduct in making certain representations to the United States District Court

in support of the request for a material witness warrant and search warrants;

and (6) to assess the conditions under which Mayfield was confined prior to his

release.

4 After the OIG opened the investigation on its own initiative, several members of

Congress also requested that the OIG investigate the Mayfield case.

21
In addition to the OIG's review, the Department of Justice (DOJ) Office of

Professional Responsibility (OPR) also conducted an investigation into aspects

of the Mayfieid case that involved the conduct of Department attorneys.

Initially, the OIG intended to review the entire Mayfield matter in its

investigation. We believed that one DOJ oversight entity should investigate the

matter. We also concluded that the OIG had jurisdiction under Section 1001 of

the USA PATRIOT Act (Patriot Act) to investigate allegations of civil rights or

civil liberties abuse made against all DOJ employees, including DOJ attorneys.

However, OPR disagreed, stating that it has the authority generally to

investigate allegations involving the professional conduct of DOJ attorneys.

Eventually, the Deputy Attorney General decided that OPR would investigate

the conduct of DOJ attorneys in the Mayfield case and the OIG would

investigate the actions of the FBI.

As a result, OPR (rather than the OIG) evaluated DOJ attorneys' conduct

in the Mayfield case, such as the decision to obtain a material witness warrant

and the accuracy and sufficiency of the evidence presented by attorneys in

support of the warrant. In addition, OPR examined representations made by

_.._.u _,.,_,..,.,.,.,yo i_._u_***e_uu,_w,m u_c,_request tlllIivlayncio L be held in

custody and the decision by DOJ attorneys to include certain information

about Mayfield in court pleadings.

The OIG conducted its investigation of the FBI's conduct in coordination

with the OPR investigation, although the two offices' findings were developed

separately.

II. Methodology of this Review

In the course of our review, the OIG interviewed over 70 individuals. In

Washington, D.C., the OIG interviewed personnel from the DOJ

Counterterrorism Section (CTS), the DOJ Office of Intelligence Policy and

Review i_¢,l_l_j, _lu ul_ FBI _Too_ _-._ _-^ Counterterrorism Division (CTD). OiG investigators

toured the FBI Laboratory Latent Print Units (LPU) located in Quantico,

Virginia, and interviewed Laboratory and LPU management and staff, including

the LPU fingerprint examiners directly involved in the misidentification. S The

OIG also obtained a written explanation of the misidentification from Kenneth

Moses, the court-appointed fingerprint expert who also verified the

identification.

s John T. Massey, the fingerprint examiner who verified the Mayfield identification, was

an FBI contractor at the time, but his contract has since expired. Massey declined to be

interviewed for this investigation. Massey cited the pendency of legal action by Mayfield

against him personally as the reason for declining to be interviewed for this investigation.

22
OIG investigators traveled to Portland, Oregon to interview personnel

from the FBI Portland Division, the United States Attorney's Office (U.S.

Attorney's Office), the United States Marshals Service (USMS), the Multnomah

County Sheriff's Office (MCSO), and the Multnomah County Detention Center

(MCDC) who were directly involved in the investigation, arrest, and detention of

Mayfield. Additionally, the OIG toured the MCDC where Mayfield was detained

for two weeks.

The OIG sought to interview Brandon Mayfield regarding this matter, but

Mayfield's attorneys declined this request. Therefore, the OIG reviewed

numerous press accounts describing Mayfield's statements regarding the

investigation and the conditions of his confinement.

The OIG obtained and reviewed thousands of pages of documents

generated by DOJ, the FBI, and the U.S. Attorney's Office pertaining to the

fingerprint identification and the investigation and arrest of Mayfield. This

documentation included e-mails, internal memoranda and reports, notes,

briefing materials, policy and procedural manuals, timelines, and investigative

..... .-.1 ....... 11 1 -- --1 ==

l_t_uiu_, _t_ w_l_ as p_eaumgs, transcripts, and orders from court proceedings.

While in Portland, the OIG reviewed court records, U.S. Attorney's Office

documents, and documents seized by the FBI during searches of Mayfield's

office and residence. OIG investigators also reviewed USMS and MCDC records

pertaining to Mayfield's detention, including Mayfield's prisoner file, MCDC

daily shift logs, internal memoranda, and prisoner tracking system logs.

We also interviewed four officials of the SNP by telephone, including the

former director and deputy director of the SNP Laboratory, the commissioner of

the unit responsible for processing and identifying fingerprints, and the crime

scene investigations division section chief, all of whom were either present at

one or more meetings with the FBI to discuss the fingerprint identification or

who had subsequent contacts with the FBI on the matter.

In addition, the OiG reviewed the unpublished individual reports of all

eight members of an International Panel convened by the FBI in June 2004 to

review the fingerprint analysisperformed by the FBI Laboratory and to make

recommendations to help prevent future errors. The OIG also conducted

interviews of two of the panelists who provided information on the panel's

review process and explained their assessments of the reasons for the

fingerprint error.

The OIG also interviewed the Executive Director of the American Society

of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB),

the organization responsible for accrediting the FBI Laboratory, to ascertain the

accrediting process and to determine the organization's policy and procedures

for addressing situations where an accredited laboratory has made a significant

23
error. ASCLD/LAB also provided a copy of an October 2004 report of an

interim inspection it conducted of the FBI Laboratory in response to the

Mayfieid fingerprint misidentification.

t_ A_ "1 C_/"_/'_ _-1.._ 1"_1-1T T --1--- 111npru -._vo, ul_ r r_l _auoratory provided the OiG with a copy of

detailed reports prepared by seven separate Latent Review Teams asked by the

Laboratory to perform a comprehensive internal review of LPU policies and

procedures. The OIG reviewed and analyzed the Latent Review Teams'

recommendations to assess their responsiveness to the causes of the Mayfield

error.

The OIG recruited the following recognized experts in latent fingerprint

identification to provide expert input and guidance on latent fingerprint

examination issues:

(1) John Dustin "Dusty" Clark, a latent fingerprint examiner formerly with

the California Department of Justice and now employed by the Western

Identification Network. Clark has been certified by the International

r_ut_lcttluii Iu1ltl_llLlllt_tUUll tl/-_i) and is a member of the Scientific

Working Group for Friction Ridge Analysis, Study, and Technology

(SWGFAST), an organization of latent fingerprint examiners from many

laboratories that establishes guidelines for the discipline. He has

provided expert identification testimony on over 280 occasions. In

addition to providing his expertise to the. O!G's investigation, Clark

prepared many of the graphic illustrations of the fingerprint comparisons

used in this report.

(2) Michael R. Grimm, Forensic Science Supervisor, Western Laboratory,

Division of Forensic Science, Virginia State Police. Grimm has been a

latent fingerprint examiner for 30 years and has qualified to testify as a

latent print expert more than 250 times. He is certified by the IAI and

has served on the IAI Certification Board. He is also a member of

_11 T#"_ _ A C"_r_l

0 VV I_TP 2-_.0 I.

(3) John R. Vanderkolk, Regional Laboratory Manager, Indiana State Police.

Vanderkolk is a practicing latent fingerprint examiner, an Editorial Board

Member of the Journal of Forensic Identification, and a member of

SWGFAST. He has published several articles regarding latent fingerprint

examination and has conducted latent fingerprint training on numerous

occasions.

These experts were selected for their reputations within the latent fingerprint

community and for the diversity of views they have expressed in various

24
debates within the discipline about issues the OIG believed were implicated by

the Mayfield misidentification. 6

III. Organization of the OIG Report

This report is divided into seven chapters. In the remainder of this

chapter, we briefly identify the various law enforcement organizations that are

relevant to this report. Chapter Two sets forth a detailed chronology of events

regarding the fingerprint identification, investigation, arrest, detention, and

subsequent release of Mayfield. Chapter Three provides background

information regarding fingerprint identification issues, including a description

of the FBI Laboratory LPU and an overview of the latent fingerprint

examination process utilized by the LPU. Chapter Four contains the OIG's

substantivereview of the causes of the erroneous fingerprint identification.

Chapter Five presents a review of the Laboratory's responses to the error,

including various reforms under way in the LPU, and additional

recommendations for consideration by the Laboratory.

Chapter Six evaluates the conduct of the FBI with respect to the

investigation and arrest of Mayfield. It addresses the issue of whether Mayfield

was improperly targeted because of his religion, examines the FBI's use of the

Foreign Intelligence Surveillance Act of 1978 (FISA) and the Patriot Act in the

investigation, and assesses representations made by the FB! in seeking a

material witness warrant and criminal search warrants. It also sets forth the

OIG's assessment of the conditions of Mayfield's confinement. Chapter Seven

presents a summary of the OIG's conclusions.

IV. Description of Organizations Involved in the Mayfield Matter

Several federal and international law enforcement organizations and

components participated in the investigation, arrest, and detention of Mayfieid.

Background information regarding those organizations and components of

particular relevance to the OIG's investigation is provided here.

The FBI Laboratory provides forensic and technical services to federal,

state, and local law enforcement agencies, and occasionally to foreign police

departments. The Laboratory analyzes crime scene evidence, provides expert

6 It should be emphasized that although the OIG's conclusions were informed by

opinions and information provided by these consultants, the conclusions are the OIG's alone,

are based on all of the information obtained by the OIG, and should not be attributed to the

consultants except where specifically stated in this report. The OIG is extremely grateful for

the assistance provided by Messrs. Clark, Grimm, and Vanderkolk.

25
witness testimony, and assists domestic and international law enforcement

agencies in large-scale investigations and disasters. Among the components of

the Laboratory are the Latent Print Units (LPU), which conduct latent

fingerprint examinations. 7 The LPU identified Mayfield as the source of the

fingerprint found in Spain. More detailed information regarding the Laboratory

and the LPU is provided below in Chapter Three.

The FBI's CTD is responsible for investigating and dismantling terrorist

cells and operatives within the United States and worldwide. The CTD is

divided into branches, sections, and units, each of which focuses on a different

aspect of terrorism. The Investigative Operations Branch of the CTD supports,

coordinates, and manages terrorism-related investigations. It is made up of

four sections, one of which is the International Terrorism Operations Section I

{ITOS I). ITOS I is responsible for FBI international counterterrorism

operations related to al Qaeda and Sunni extremist groups. In March 2004,

ITOS I encompassed five geographical units- four Continental United States

(CONUS) Units and the Extraterritorial Unit (ETIU}. CONUS 4 had

geographical responsibility for the Portland, Oregon area. The ETIU serves as a

• _._o_J_l vv_tl _11_,_ l'l._l O l._l.*_OLl Z-I. LL_LblIk:,_:3 m ULIIC;I bULIIILII_:;_:_. V

The FBI's Legal Attach6 (referred to in this report as the Madrid Legat) in

Madrid acts as a liaison between the FBI and law enforcement agencies in

Spain and several other countries, and has responsibility for coordinating all

FBI investigations in those countries.

The FBI has 56 separate Field Offices located across the United States.

The Por:tland, Oregon Division of the FBI (Portland Division) was the Field

Office primarily responsible for the field investigation of Mayfield. The Portland

Division worked closely with the U.S. Attorney's Office for the District of

Oregon, which is responsible for prosecuting federal cases in Oregon.

DOJ CTS supports law enforcement efforts in combating international

and A.... +:_ terrorism The _o _ • _ _o suppo_ teu and ..... ".... -' muniLur_u the efforts of the

Oregon U.S. Attorney's Office and worked closely with the FBI's CTD in the

Mayfield investigation. The DOJ OIPR is responsible for the preparation and

filing of all applications for electronic surveillance and physical searches under

FISA.

7 Although there were three Latent Print Units within the Laboratory at the time of the

Mayfield identification, the FBI sometimes referred to the units collectively in the singular as

the LPU. The OIG will follow that convention in this report.

8 Appendix A to this report contains an organizational chart for the CTD and other

selected organizations involved in the Mayfield matter as of the time of the Mayfield

identification.

26
The USMS takes custody of those individuals arrested or detained by

some federal agencies, including the FBI. This requires housing and

transporting the prisoners from the time they are brought into federal custody

until they are either sentenced, acquitted, or otherwise released. If sentenced,

the _°_° _ ..... *_ _ " " "-

uoivio tretil_lJOi ta them to designated prison lacihtms. Seventy-five percent

of the prisoners in USMS custody are detained in state, local, and private

facilities under contract to the USMS; the remainder are housed in Federal

Bureau of Prisons facilities.

The MCDC, located in Portland, Oregon, is one of the 1,300 detention

facilities under contract with the USMS to house federal prisoners under USMS

custody. Mayfield was detained in the MCDC.

The SNP is the national police force of the Government of Spain. Like the

FBI, the SNP has its own forensic laboratory. The SNP was responsible for

investigating the March 11 Madrid train bombings.

INTERPOL is the world's largest international police organization, with

it.)*', iIIE, IIIUtT_I bUtliiLile¢). 11'_ iblkl-Ub iigttclllt_tL_ tJIU_CS-UUIUlE:I pUlltJg EUUpelaLiOli

by providing a global police communication system and a range of criminal

databases and analytical services. INTERPOL facilitated initial

communications between the SNP and the FBI Laboratory regarding the

fingerprint that was identified as belonging to Mayfield.

27
FIGURE 1

Timeline of Major Events

EXplosions on corrmmter trains in The FBI I_U identifies Mayfie!d as the

Madrid kill nearly 200 people, source of a fingerprint (I_P 17) recovered by

the SNP. The FBI opens an investigation of

Mayfleld, including 24-hour surveillance.

[ The SNP issues a report ]

I concluding that its comparison of[ [ FBI LPU Unit Chief Wieners meets with

[ Mayfleld's prints was "negative." _ ] SNP representatives in Madrid to discuss \

the FBI's identification of Mayfield.

i

3_ne US Attome3es Office seeks a material

Media inoj_A_n'es bem_n witness warrant and search warrants based

_ regarding a possible [ I °n the IJ_Lrs identification of May field as

American suspect in the the source of I_P 17. Judge Jones issues

Madrid train bombings, the warrants and Mayfield is arrested and

his home and office are searched.

w

ammmlim_m_lm__

Nenneth Moses, a eourt-appointed / The SNP informs the FBI that it has

latent fingerprint exan_er, testifies | identified Daoud as the source of I_PP

that Mayfleld is the source of LFP 17.] 17 and of another fingerprint (I.FP 9.01.

"/I _. •

I

Judge Jones releases ' FBI LPU representatives meet with the

Mayfield to home detention. SNP in Madrid, and obtain high quality

copies of Daoud's known fingerprints.

I

After

an overnight re-examination, [ Judge Jones dismisses the

the FBI IPU declares I_FP 17 to be [ material witness proceeding.

of "no value" for idenfiflcalJon. [ The FBI apologizes to Mayfield.

i

_FBI representatives meet with the SNP [

in Madrid for a third time, to discuss [ The FBI IPU issues a report

the SNP's identification of Daoud, J identifying Daoud as the

J

source of IJFP 17 and I_P 20.

28
CHAPTER TWO

CHRONOLOGY OF EVENTS RELATED TO THE MAYFIELD CASE

In this chapter, the OIG provides a detailed chronolo_v of events in the

Mayfield matter. A timeline of major events is provided in Figure 1.

I. Pre-Arrest Events

A. The Madrid Train Bombings and the Recovery of Latent

Fingerprints 17 and 20

On March 11, 2004, terrorists detonated a series of devastating bombs

on several commuter trains in Madrid, Spain. The explosions killed

approximately 200 individuals and injured more than 1,400 others, including

3 United States citizens.

On the day of the attacks, Spanish law enforcement officials located a

stolen van near one of the train stations serviced by the commuter trains.

Eyewitnesses interviewed by the Spanish National Police (SNP) reported seeing

three individuals handling backpacks next to the van before heading toward

the train station. During a search of the van, the SNP recovered a blue plastic

bag containing several detonators and remnants of explosives. The SNP

determined that the detonators and explosives were similar to those recovered

from an unexploded bomb found at one of the March 11 bomb sites.

The SNP processed the blue plastic bag for fingerprints. Although

numerous fingerprints were found on the plastic bag, the SNP determined that

only two of the fingerprints were of sufficient quality to be useful for

identification. These were designated as Latent Fingerprint Number 17

(LFP 17) and Latent Fingerprint Number 20 (LFP 20). 9 The SNP also recovered

additional fingerprints from the van and from other objects found inside the

van.

B. The Identification of Latent Fingerprint 17 by the FBI

In an effort to obtain international assistance with identifying potential

suspects in the March 11 attacks, the SNP forwarded digital images of

fingerprints recovered from its investigation to INTERPOL.

On Saturday, March 13, 2004, INTERPOL Madrid submitted digital

images of 14 latent fingerprints recovered during the investigation of the

9 The term '_latent" refers to fingerprints left on evidence, as distinguished from '_inked"

or _known" fingerprints collected intentionally.

29
Madrid train bombings to INTERPOL Washington, including LFP 17 and LFP

20. INTERPOL Washington forwarded the images by e-mail to the FBI

Laboratory the same day. The only information provided about the images in

the initial INTERPOL communication forwarded to the FBI was that they had

been recovered in connection with the Madrid train bombings. The

communication requested that the Laboratory inform INTERPOL Washington of

its results, implicitly requesting the Laboratory to attempt to identify the

prints.

Michael Wieners, one of three Unit Chiefs in the FBI Laboratory Latent

Print Units (LPU), reported to work that Saturday to respond to this

high-priority request. He requested assistance from Terry Green, a supervisor

in the LPU. Wieners told the OIG that he selected Green in part because Green

had extensive experience and strong skills in conducting computer searches of

latent fingerprints using the FBI's Integrated Automated Fingerprint

Identification System (IAFIS). IAFIS is an automated system that permits

computer searches of FBI databases containing the fingerprints of over 47

million individuals.

Green and Wieners quickly determined that the images from INTERPOL

were of low resolution and lacked a scale showing the size of the prints. They

attempted IAFIS searches of the images but did not make any identifications.

Wieners called the FBI's Supervisory Special Agent (SSA) assigned to

INTERPOL Washington to request that the SNP resubmit the latent prints in

higher resolution images, with a scale. Wieners told the SSA that without

these enhancements, IAFIS results would be unreliable.

On Sunday, March 14, the Laboratory received higher resolution images

from Spain, including LFP 17 and LFP 20, with a scale. Green _coded" the

prints he found to be suitable for further examination (including LFP 17) by

marking selected features on each latent print to permit the computer to

compare the print with millions of known prints in the IAFIS databases.

On Monday, March 15, Green searched three databases in IAFIS: a

Criminal Master File (containing fingerprints from criminal arrests); a Civil File

(containing fingerprints taken in a non-criminal context, such as for military

service or government employment); and a Special Latent Cognizant File

(containing fingerprints of suspected terrorists).

The IAFIS searches generated separate lists of up to 20 candidate

fingerprints for each latent print and each database searched. The program

also generated a %core" for each candidate print indicating the degree of

similarity detected by the computer. Depending on the database being

searched, IAFIS identifies the top 10 to 20 highest scoring candidate

fingerprints. The candidate print that receives the highest score from the

30
computer may not be the true match, which is why the system generates a list

of candidate prints rather than just the highest-scoring candidate. The final

identification decision is made by the examiner, not by the computer.

On Tuesday, March 16, Green began his comparisons of the latent prints

from Spain with the IAFIS candidates. Green made the comparisons on the

computer screen and with high resolution printouts of the digital images that

he was able to generate in the LPU. According to LPU documents, Green

conducted comparisons of LFP 17 to the candidate prints that IAFIS listed from

the Civil File and the Special Latent Cognizant File, but did not find a match.

Green also compared LFP 17 to candidate prints from the Criminal

Master File. Green told the OIG that during his comparison he began to think

he had a match for LFP 17 with one of the candidate prints generated from this

search. The computer had scored this candidate fourth-highest on a list of 20.

Green asked Wieners to view the images side by side on the computer screen.

Green told the OIG that Wieners said the comparison looked good. Wieners

..likewise told the OIG that he recalled saying words to the effect that Green was

_,L_ SO_t_1_IL S.

Green completed his examination and reached the conclusion that LFP

17 was made by the same source as the fourth candidate print On the list

generated by IAFIS from the Criminal Master File. Green told the OIG that,

consistent with established LPU practices, he then terminated his comparison

of LFP 17 with the other candidate prints on the IAFIS-generated list. Green

stated that at the time of the identification decision, he did not know anything

about the person whose print he had matched other than the FBI identification

number and the fact that the print was from the subject's left index finger. The

candidate lists generated by IAFIS did not indicate any of the candidates'

names, and the OIG did not find any records suggesting that the Laboratory

had additional information about the individual at that time.

Green told the OIG that after making the identification he used the FBi

identification number for the candidate print to access FBI identification

records in order to determine whether other versions of the candidate's known

prints were available. The identification record revealed the name of the

subject, Brandon Bieri Mayfield. It also showed that Mayfield's fingerprints

were in the Criminal Master File as the result of a 1985 arrest for burglary of

an automobile (when Mayfield was a teenager), and that the charge had been

dismissed.

31
The identification record indicated that Mayfield's fingerprints also were

recorded in 1989 in connection with Mayfield's service in the United States

Army. i0 Nothing on the FBi identification record indicated Mayfieid's religion,

occupation, current address, or marital status. There was no alias indicating

an Arabic or __"-':-- v,u_mn name. Greet, *-' Lu_d_t.- u_c v'_" * _ a_v_th_tLnone of _-me information on

the printout affectedhis identificationdecision in any way.

Green did not find matches forany of the other latent fingerprints

submitted by the SNP, including LFP 20. Green did determine that Mayfield

was not the source of any of these other latent fingerprints.

On March 16, after reaching his conclusion that Mayfield was the source

of LFP 17, Green ordered Mayfield's original civil and criminal inked 10-print

cards, which are maintained by the FBI's Criminal Justice Information Services

Division (CJIS). Green told the OIG that it was routine procedure to retrieve

the original inked prints for comparison with the latent print. He said that

when he reviewed these originals within the next few days and compared them

with LFP 17, he felt they confirmed his prior determination.

On March 16, Unit Chief Wieners telephoned the SSA assigned to

INTERPOL Washington to request that the original evidence (the bag on which

LFP 17 was deposited) be obtained from Spain "due to a comparison with a

possible person of interest." LPU examiners told us that they generally prefer

to work with the original fingerprint if it is available, but it is not unusual for

the LPU to examine photographs of latent fingerprints submitted by outside

agencies. Wieners stated that he did not expect that the SNP would comply

with his request for the original evidence because most law enforcement

agencies will not surrender control over evidence of this nature and

importance. Wieners also requested information from the SNP about the

substrate (the surface on which the print was deposited) and the processing

technique used to develop the print.

Pu, _ua,,_to u,c _uu_ _ttu, y requirement _-* U,_L any iing_i prnit

identification be "verified" by a second examiner, Wieners asked John T.

Massey to examine LFP 17 and the Mayfield known prints. _1 Massey is a

retired FBI latent fingerprint examiner with 35 years of experience who was

providing services to the LPU on a contract basis. Wieners told the OIG that he

10 The inked prints taken during Mayfield's military service were not contained in the

IAFIS Civil File, which precluded the computer from retrieving those prints as a possible

match. The FBI began including civil prints in the IAFIS databases subsequent to the time

that Mayfield's Army prints were taken in 1989, and did not retroactively enter older civil

prints.

11 As noted in Chapter One, Massey declined to provide an interview to the OIG in

connection with this investigation.

32
selected Massey because of Massey's skill and extensive experience. Wieners

stated that Massey waited to see Mayfield's original inked prints from CJIS

before making his decision, which Wieners considered to be a routine and

prudent step. According to Wieners, Massey did not tell him about any

particular prubleis, s or concerns in _'^ comparison. On Friday, March In

Massey formally verified the identification of Mayfield as the source of LFP 17.

Wieners stated that after Massey verified the identification, Wieners

discussed the examination with Green and Massey. At this stage, however,

Wieners had not performed his own complete and independent examination of

LFP 17 and Mayfield's known print. Wieners told the OIG he recalled

discussing with Green and Massey the fact that there were some differences in

appearance between LFP 17 and the Mayfield known prints. Wieners told the

OIG that he saw the differences and was satisfied that Green and Massey had

reasonable explanations for them. In particular, the upper left portion of LFP

17 contained distinct features that could not be matched to the known

Mayfieid prints, and Wieners told the OIG that this area gave him "heartburn

from the get-go." Green told Wieners that he had concluded that this area was

of Mayfield's finger. Wieners told us that he concurred with Green's

explanation.

At least two other examiners in the LPU also looked at the comparison

between LFP 17 and Mayfield's prints shortly after Green made the

identification. The first examiner told the OIG he was not acting as an official

examiner or verifier, and stated that he could not recall who asked him to

:conduct an informal examination of the prints. He told the OIG that he noticed

both similarities and dissimilarities in the comparison. He stated that he had

problems with the clarity of the latent image andthat he decided the

comparison was too difficult to complete in the time he had available.

The other examiner stated that Green asked him to look at the print

u_c_us_ he "_'^ ut,_e, _t,_ _x_,,_,,erj was u,_ program manager in major ,_,c_u_,t

cases, and because Green was proud of the identification. This examiner told

the OIG he also noticed both similarities and dissimilarities in the prints. He

told the OIG he was concerned about several dissimilarities, including the

upper left portion of the latent print, which had several clear details that did

not match the Mayfield known prints. He stated that he did not consider the

upper left part of the print to be a separate touch. He also stated that he did

not have enough time to study the prints, so he returned them to Green. This

examiner told the OIG he might have briefly expressed some concerns about

the identification in a passing conversation with Green.

33
On March 19, Wieners called the SSA at INTERPOL Washington to advise

him that the Laboratory had identified Mayfield as the source of LFP 17. On

March 20, Green finalized the written report formalizing the identification.

Later on March 20, another LPU Unit Chief performed a _:peer review"

and "administrative review" of the report to confirm that it was properly

formatted and contained the information required under applicable LPU

procedures. The third LPU Unit Chief told the OIG that these reviews did not

involve a substantive evaluation of the basis for Green's conclusion that

Mayfield was the source of LFP 17.

On March 21, INTERPOL Madrid provided INTERPOL Washington with a

description of the blue plastic bag and an explanation of the processing method

used to develop and photograph LFP 17. This information was translated and

submitted to the Counterterrorism Division (CTD) at FBI Headquarters on

March 22. This information was apparently provided in response to the

request originally made by Wieners to INTERPOL Washington on March 16 for

•information about the substrate and the processing method. Wieners and

...... 1-- _.,El ...... 11

vTr_n uotn stated they -"-' uzu not receivingthisinformationin the LPU at rccan

that time, and the information was not included in the files made available to

the OIG by the FBI Laboratory. It appears that the CTD did not forward this

information to the Laboratory.

By March 23, the CTD also had obtained at least one photograph of the

blue plastic bag containing detonators that showed multiple prints on the bag.

Again, there is no evidence that the CTD forwarded this photograph to the

Laboratory at the time. Green stated that one to three weeks after making the

identification he learned that the print was made on a plastic bag, but this

information was not useful because it did not specify the type of plastic.

Wieners told the OIG that the first time he saw a photograph of the bag was in

mid-April, at FBI Headquarters in Washington, D.C. 12

C. initiation of the FBI investigation of Mayfieid

1. Notification of the Mayfield identification to the FBI's

CTD and Portland Division

Shortly after noon on March 19, 2004, the SSA at INTERPOL Washington

sent an e-mail to the FBI CTD which stated that, with regard to the Madrid

bombings investigation, the FBI LPU had "confirmed that one of the latents is a

12 Some examiners suggested to the OIG that if the Laboratory had known about the

relative positioning of LFP i 7 and other latent fingerprints on the plastic bag, it might not have

made the erroneous identification. We address this issue in Chapter Five of this report.

34
match to U.S. citizen Brandon Bieri MAYFIELD." The e-mail referenced

Mayfield's date of birth and social security number, stated that Mayfield had

served in the military from 1985 through 1994, and stated that he possibly

resided in the Portland, Oregon area. FBI documents indicate that this

uuurmauun w-as obtained by a ChoicePoint search of Mayfieid's name. la The

e-mail contained no other information about Mayfield.

Arthur Cummings, the Section Chief of International Terrorism

Operations Section I (ITOS I) at FBI Headquarters, told the OIG that he received

word of the Mayfield identification on March 19.14 Cummings said that he was

initially concerned that Mayfield might be part of a "second wave" of terrorist

attacks. He said he ordered a 'ffull-court press" on Mayfield, meaning that he

authorized the use of every lawful investigative tool on Mayfield, including

24-hour surveillance.

An SSA in Continental United States 4 (CONUS 4), the CTD unit with

geographical responsibility for Portland, Oregon, said he first learned of the

Mayfield identification during the afternoon of March 19. (We refer to this

,-,_.,_4- _ _L_ ,_I"_TTTC-_ C_C'_ A _ #'T'_l_ ]%11 Tt"_ C_(_ A

oo_.1 i ne _tJn uo 4 oo_ told us that all he knew at

that point was Mayfield's name and that he lived in Portland. He said

CONUS 4 ran Mayfield's name through various databases and located

Mayfield's last known address in Portland.

After reading the e-mail from INTERPOL Washington, an analyst in

CONUS 4 (referred to in this report as the CONUS 4 analyst) passed along the

information in an e-mail to the FBI Portland Division. Responsibility for the

Mayfield investigation was assigned to one of the International Terrorism

,squads in the Portland Division, headed by an SSA (referred to in this report as

the Portland SSA). The CONUS 4 analyst said shethen checked FBI databases

to see if the FBI had any investigations related to Mayfield. She said she found

no FBI investigations directly related to Mayfield, but when she conducted a

search of in FBI databases, she found that several

to other suspected terrorists.

13 ChoiceP0int is a commercial provider of identification and credential verification

services to businesses and government.

14 For simplicity, all titles used in this report refer to the position of the person at the

time of the event being discussed. In many cases, the individuals are now in different

positions.

35
2. Initiation of the field investigation of Mayfield by the

Portland Division

The Portland SSA told the OIG that the March 19 e-mail from the

t:ul_ ub 4 analyst contained everything she knew about Mayfieid at the time.

The Portland SSA said she gave copies of the e-mail to two Special Agents (SAs)

who were members of her squad and told them to find out everything they

could about Mayfield. The SAs were subsequently designated as the lead case

agents (referred to in this report as Lead Case Agent 1 and Lead Case Agent 2)

for the Portland Division field investigation of Mayfield. The Portland SSA said

she also notified Robert Jordan, the Portland Division Special Agent in Charge

(SAC), and the Assistant Special Agent in Charge (ASAC), of the identification of

Mayfield. She said that at the time the Portland Division knew Mayfield's

fingerprint was associated with the Madrid bombings but did not know where

the fingerprint was found.

Lead Case Agent 1 told the OIG he was able to locate current addresses

for Mayfield's home and office on March 19. The Portland SSA said that later

that afternoon the Portland Division _ to confirm that Mayfieid

was in his office. The FBI began 24-hour surveillance of Mayfield that

afternoon.

The Portland SSA said that the Portland Division also ran Mayfield_

FBI databases and found (as did CONUS 4 that

made

5

She also said that some members of the "Portland Seven" had attended this

mosque. 16

is As discussed in greater detail in Section I.C.3 of this chapter, after the FBI learned of

fh_ M_,rfi_lrl f_na_rnrln_ _rl_,_flr-_inn if sought authorization to conduct ...... _ ...... m ....

and searches of Mayfield pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA).

In a written application later submitted in su of the uest for FISA auth_ to conduct

the covert surveillance and searches,

16 The "Portland Seven" matter involved the federal prosecution in Oregon of seven

individuals, six of whom had allegedly plotted to travel to Afghanistan and engage in combat

against the United States armed forces on behalf of the Taliban and al Qaeda. To date, six of

the seven have pied guilty to various charges stemming from their actions, such as conspiracy

to levy war against the United States and money laundering, and have been sentenced. A

seventh individual charged in the case was killed in Pakistan.

36
The Portland SSA said that when learned that

that Mayfield

attended the Biiai mosque, another mosque in the Portland area that was also

attended by members of the Portland Seven. Thus, according to the Portland

SSA and FBI documents, the FBI first learned that Mayfield was a Muslim after

the FBI had been notified of the FBI LPU identification of Mayfield and had

initiated the field investigation.

Witnesses and documents reflect that by the end of Friday, March 19,

the FBI had Mayfield under 24-hour physical surveillance and identified

Mayfield's home and business addresses and telephone numbers. The FBI also

learned that Mayfield was a lawyer with his own law practice, that he served in

the military from 1985-1994, and that there was no evidence that he had

recently traveled abroad. :7 In addition, the FBI learned that Mayfield was a

Muslim, was married to a naturalized United States citizen born in Egypt, and

:had three children. The government also began issuing numerous grand jury

subpoenas.

,,

On Saturday, March 20, the FBI learned from a database of court filings

that Mayfield had previously represented Jeffrey Leon Battle, who was a

member of the Portland Seven, in a child custody dispute. Battle pleaded

gui!_ in Octnher 200,_ tn cnn,_nir_cvr.... J tn...........levy w_r _,_in,_to the. 1 lnite.d ,_t_te.._ _nct

was subsequently sentenced to an 18-year prison term.

On March 20, Mayfield was placed on the State Department's Visa

,}Lookout list and in the Department of Homeland Treasu

Enforcement Communications _stem.

On March 23, at the request of the FBi, the un:tea _tates Attorney's

Office S Office obtained court authorization for the FBI to

17 The Portland SSA told us that sometime during the first week of the investigation,

the FBI learned that Mayfield's law practice consisted largely of immigration and domestic

relations matters.

37
3. Authorization for covert electronic surveillance and

physical searches

ITOS I Section Chief Cummings said that once he learned about the

Mayfield fingerprint identification, he ordered agents in ITOS I to seek

emergency authorization from the Attorney General to conduct covert

surveillance and physical searches concerning Mayfield pursuant to FISA. The

ITOS I Assistant Section Chief said he notified the Department of Justice (DOJ)

Office of Intelligence Policy and Review (OIPR) of a forthcoming request to the

Attorney General for emergency FISA authorization. The ITOS I Assistant

Section Chief also said that the CONUS 4 SSA and the CONUS 4 analyst, with

input from the Portland Division, were responsible for providing OIPR with

justification for the emergency FISA authorization request.

FISA provides for the use of, among other things, covert electronic

...... "" _ -' .... "--' --'- -- _ui v_mmmc mlu p_ly_lt:ai _aI-_:n_s to gather fore n inte ence ig ilig .... lnlormatlon.

To obtain FISA authorization to conduct covert surveillance and searches, DOJ

OIPR must submit a written application to a special court, the Foreign

Intelligence Surveillance Court (FISA Court), which has the authority to grant

or deny the application. The written application must establish, among other

things, probable cause for the FISA Court to find that the target of the

surveillance and searches is either a foreign power or an agent of a foreign

power, and that a significant purpose of the surveillance and searches is to

,obtain foreign intelligence information. A foreign power is defined broadly to

:include any group engaged in international terrorism. The written application

must also include a declaration or affidavit from the FBI establishing the facts

justifying the authorization for a FISA warrant. If the Attorney General (or

Deputy Attorney General) determines that an emergency situation exists and

that there is a factual basis for the issuance of a FISA warrant, the Attorney

General (or Deputy Attorney General) may authorize electronic surveillance or a

physical search without prior approval from the FISA Court, provided that the

FISA Court is notified of the emergency authorization and a written FISA

application is submitted to the FISA Court within 72 hours.

The CONUS 4 SSA said that sometime during the day on _, he

made an oral presentation to an OIPR ' of the uest _r

emer FISA authorization.

38
An OIPR attorney (referred to in this report as the OIPR Attorney) said he

received the emergency FISA request. Another attorney from OIPR

subsequently made an oral presentation to the Attorney General or Deputy

Attorney General in support of the emergency FISA a lication. The emergency

a uested electronic surveillance on

OIPR immediately notified the FISA

Court of the emergency FISA authorization.

Subsequently, as required by emergency FISA procedures, OIPR

submitted a written FISA application to the FISA Court on _.

The OIPR Attorney prepared the written FISA application and the CONUS 4 ..

oo ^ ..... -, -- _ - _--' ....... oo ppli rt _1 v_u et_ ut_ u_cimeulL. The written FISA a cation and declaration

stated that there was probable cause to believe that _ was a foreign

power, that Mayfield was an agent of _, that the facilities and places at

which electronic surveillance would be directed were being used by Mayfield,

and that the premises to be searched contained foreign intelligence

information. In su of these assertions, the declaration set forth the

In addition to the authorization requested in the emergency FISA

application, the written FISA application requested authorization to conduct

searches of home and office and

18 The FISA Court approved the FISA application

18 :ordin to the Portland SSA, the FBI never

39
on _ and issued several orders authorizing the requested FISA

warrants. 19 The FISA warrants were set to expire in 90 days.

4. Early concerns about a leak

ITOS I Section Chief Cummings told the OIG that because information

regarding the FBI's identification of Mayfield had been channeled through

INTERPOL, he realized it would be disseminated to other government agencies,

and he became concerned that the identification of Mayfield would become

public. Cummings said he immediately called a high-ranking official at the

State Department to restrict the dissemination of information regarding the

investigation.

The Portland SSA said that by either Friday afternoon or Friday evening

on March 19, the Portland Division had discussed with the U.S. Attorney's

Office for the District of Oregon a contingency plan in case Mayfield tried to

flee. According to the Portland SSA, the U.S. Attorney's Office suggested using

a material witness warrant to detain Mayfield. 20 The Portland SSA said that

the next day, she, Karin immergut (the U.S. Attorney for the District of

Oregon), and two Assistant U.S. Attorneys (referred to in this report as AUSA 1

and AUSA 2) participated in a conference call with FBI SAC Jordan to discuss

contingencies in the event that Mayfield tried to flee. AUSA 2 began drafting a

material witness warrant for the arrest of Mayfield and criminal search

warrants for Mayfield's home and office. 21 The Portland SSA said they also

discussed the possibility of a leak regarding the FBI's interest in Mayfield and

viewed the material witness warrant as a means of dealing with the possibility

of Mayfield fleeing or a leak. The Portland SSA, who was the coordinator for

the Joint Terrorism Task Force (JTTF) in Portland, also said she was instructed

to restrict the information flow concerning the Mayfield investigation. Based on

this, she said she advised all members of her squad, including JTTF personnel,

to restrict the information flow to those who were working on the case.

19

20 Pursuant to 18 U.S.C. § 3144, a court may order the arrest of a person if it appears

that the testimony of the person is material to a criminal proceeding, and it is shown that it

may become "impracticable to secure the presence of the person by subpoena."

21 Criminal search warrants are different than the FISA-authorized search warrants

referred to previously in this report. FISA-authorized search warrants permit the government

to conduct covert searches to gather foreign intelligence information without providing

immediate notice to the target of the search. Criminal search warrants permit the government

to conduct overt searches to gather evidence of a crime. The target of a criminal search is

usually provided with immediate notice of the search.

40
Specifically, JTTF members were told not to provide information to their

respective agencies and that briefings regarding the investigation would be

conducted at Headquarters level.

)

AI_ '_ ,'r _ . 1

t_so on lwarcn 22, SAC Jordan sent an e-mail to Gary Bald, the Assistant

Director for the CTD, alerting him to the Portland Division's contingency

planning. Jordan stated that because Mayfield's identity and potential

connection to the Madrid bombings was known to INTERPOL and other

agencies, there was an increased danger of a media leak.

Bald told the OIG that on March 21 and 22, he learned of inquiries about

Mayfield made by the Secret Service, the Department of Homeland Security,

and other law enforcement agencies who were members of the Portland JTTF.

Bald said the FBI's biggest concern was that it did not know if Mayfleld was

part of a second wave of terrorist attacks planned for the United States. Bald

said he was also afraid that if information about Mayfield became public,

Mayfieid might disappear.

T-__ I ..I _ __ _1

_,u _L_tt_Uthat as a result of these inquiries, he telephoned contacts at

other law enforcement agencies to try to restrict the flow of information

concerning Mayfield, and asked Cummings to do the same. Furthermore, on

March 25, Bald traveledto Spain to meet with the SNP to address the FBI's

concerns that information in the Mayfield matter not be divulged to the

international community. Bald said that concerns about potential leaks began

to drive the pace of the investigation.

On March 27, David Nahmias, the Deputy Assistant Attorney General of

the Criminal Division, authorized the execution of the material witness warrant

relating to Mayfield in "truly exigent circumstances." Nahmias told the OIG he

was referring to a possible situation in which the FBI's interest in Mayfield

became public and he tried to flee.

D. The FBi Laboratory's Response to initial Concerns of the SNP

Early on Monday, March 22, the Madrid Legat in Madrid reported in an

e-mail to the CTD that the SNP "expressed some concern about the

identification of Mayfield through the latent print .... They just want to be

absolutely sure, as this is so out of character for the subjects they are dealing

with." The Madrid Legat told the OIG that at this stage, the SNP's concerns

reflected amazement that an American's fingerprint would show up on the

evidence, given that the other suspects were local Moroccans. The FBI had not

yet provided the SNP with Mayfield's known prints for comparison to LFP 17.

41
In an e-mail sent later that morning, an SSA from the Extraterritorial

Unit (ETIU) requested that the Laboratory prepare "a product like a court room

exhibit showing the known prints with the points of comparison to the latents"

in order to respond to the SNP's concerns. He also requested "good copies of

the known plints to share with the Spanish." Green responded by providing

digital copies of Mayfield's criminal and civil prints to ETIU that same day. 22

Later that day, March 22, Green sent ETIU charted enlargements of the

identification (the March 22 Charted Enlargements) showing 15 numbered

similarities along with several additional "Level 3" details (tiny features such as

pores and incipient dots) circled in both prints. The March 22 Charted

Enlargements are reproduced below as Figure 2A (showing the charted features

on LFP 17) and Figure 2B (showing the corresponding features on Mayfield's

inked fingerprint). Because the official March 20 FBI Laboratory Report of the

identification contains no description of the features or similarities on which

the Laboratory's conclusion was based, Figures 2A and 2B provide the earliest

written record of the basis of the FBI's identification.

E. Course of the Investigation from Late March until Mid-April

1. The _ FISA search of Mayfield's office

The FBI began making preparations to conduct covert searches of

Mayfield's office and residence as soon as the FISA Court granted the FISA

application. In a document dated the Portland Division

uested the assistance of the

to gain covert entry into Mayfield's office and

residence.

22 The LPU provided photographic copies of the known fingerprints of Mayfield to ETIU

on March 30, and these were apparently delivered to the SNP on April 2.

23

42
The Portland SSA said that the search team included two FBI agents who

were also attorneys and that their role was to review documents for

client privilege. 24 The search team also included

who photographed selected documents. FBI records indicate that

approximately_ documents were photographed during the search. Two

Computer Analysis Response Team examiners from Portland also participated

in the search and mirrored the hard drives of the two com in the

rr.

OlI1Ce.

The Portland SSA told the OIG that the search wasvery successful and

the team "was out , She also said that she believed that

unaware of thesearch,

The Portland SEA said that the initial review of the documents

photographed in Mayfield's office revealed no obvious explanation as to how

Mayfield's fingerprintgot on the bag ofdetonators.

On _, Portland Division FBI a began reviewing the

documents photographed during the covert office search. The review

of those documents was completed

24 The procedures the FBI followed concerning the handling of privileged documents

are discussed in Chapter Six.

43
FIGURE 2A 

March 22 Charted Enlargement 

Latent Print 

"4 *- 'a*: 
FIGURE 2B 

March 22 Charted Enlargement 

Mayfield Exemplar 
Also, by _, documents that were marked as potentially privileged were

reviewed by an FBI "taint agent. "25

The examination of the computer hard drives from Mayfield's office took

significantly longer. Witnesses told us that "_'_aood initial review" of the hard

drives was completed by

, the

FBI searched the trash (_a trash pull") at the complex where Mayfield's office

was located, searching for pertinent information and plastic bags similar to the

one on which LFP 17 was found. Nothing pertinent was found during this

search. The FBI also planned to conduct a trash pull at the Mayfield residence

on _, but decided not to do so because of concerns the agents would be

discovered.

2s The Portland SSA told us that the taint agent was a Portland Division FBI agent who

was otherwise minimally involved in the Mayfield investigation. She said the taint agent's sole

purpose was to review documents seized from Mayfield's office for possible attorney-client

privilege. The Portland SSA said that at one point she felt that the taint agent had marked too

many documents as privileged, and thus directed an AUSA to assist in reviewing the

documents. This second review, by the AUSA, was completed over the weekend of

46
surveillance of the residence was terminated on because of

fears of bein discovered.

26

47
to

1"_1" C"_A

conduct a r 1_ search of the home as

the

FBI postponed the FISA home search until

3. The _ FISA search of Mayfield's residence

The Portland SSA said that after this search, the agents conducting,

surveillance of Mayfield noted that he began

At the time, FBI witnesses told the OIG that the FBI did not make the

connection (as they would that Mayfield was suspicious. She said they

thought he was

48
4. The _ FISA search of Mayfield's residence

According to the Portland SSA, the FBI wanted to attem another FISA

search of the Mayfield residence on _, but

She said the FBi planned another FiSA search of the home for

collected 10 DNA swabs and 6 ci arette butts. 27

27 In connection with their investigation of the Madrid bombings, SNP investigators

collected DNA samples from items inside a vehicle which they believed had been occupied by

people associated with the bombings. Accordingly, the FBI wanted to obtain DNA sam

from to them to those collected in S

49
in addition, the search

team photographed several documents. Thesearch team did not find any

evidence of obvious connection to the Madrid bombings.

The Portland SSA said that after the search was completed, the

returned to the Portland Division office and began o!_nni_

She then learned

that there were with the

28

29 In newspaper articles after her husband was arrested, Mona Mayfield indicated that

there were other things that had aroused her suspicions concerning a covert entry in her

(continued)

50
The Portland SSA said she advised her supervisors of these problems.

She said that Jordan decided they would not conduct any additional covert

" rsicai searches because of the Mayfieids' suspicions, and also because of

F. The April 13 Negativo Report

On April 13, the Madrid Legat met with an SNP official with responsibility

for terrorism investigations. According to a memorandum dated April 14 and

approved by the Madrid Legat, the official advised him that the SNP fingerprint

examiners had reached an "inconclusive finding" with respect to whether LFP

17 was made by Mayfield. The same memorandum reports that on April 14,

the Madrid Legat told the official that he had consulted with the FBI Laboratory

and that the FBI "maintains the integrity of the identification" of Mayfield and

was willing to send fingerprint examiners to Madrid to explain its identification.

l _4- .... A_--'I 1 ,,1 4..1L.,_ _..I_.'..I T _.--_- _1._._._" _1

•.aL_l u,l npl. 1,, ulc _v_tul_u _g_L uuLmneu a copy- of the written report from

another member of the SNP. The report stated that the result of the SNP's

examination was "negativo" (negative). It will be referred to as the April 13

Negativo Report.

The April 13 Negativo Report was prepared in the form_ of an official letter

from the Forensic Science Division of the SNP to the Spanish National High

Court. The FBI translated the April 13 Negativo Report as follows:

SUBJECT: ANALYSIS AND COMPARISON OF FINGERPRINTS

In response to your document of reference, in which you

requested the analysis and comparison of three deca-dactylar

[ten-print] cards belonging to BRANDON BIERI MAYFIELD, from

m_ FBI ,_auuracory in the United States, we inform you that the

Special Proceedings Sections performed the appropriate studies of

the above mentioned, with the latent prints discovered during the

different crime scene inspections carried out as a result of the

11 March, 2004 terrorist attacks investigations, as well as the

deca-dactylar cards of the varied suspects that were given to this

Police Precinct. The result was NEGATIVE. We also report that

the fingerprints have been entered in our Automatic Dactylar

System for their respective study regarding matters connected to

house. Mona Mayfield stated that she saw footprints in the carpeting and that some blinds in

the home were not in their usual position.

51
the March 11, 2004 attacks, as well as any other criminal activity.

The result was also NEGATIVE.

The study of the deca-dactylar impressions is ongoing. 30 If

the results are positive, you will be notified accordingly.

The April 13 Negativo Report was signed by the Section Chief of the SNP Crime

Scene Investigations Division (referred to in this report as the SNP Section

Chief). A translated copy of the report was transmitted to FBI Headquarters,

the Portland Division, and the FBI Laboratory. The DOJ Counterterrorism

Section (CTS) informed the Portland U.S. Attorney's Office about the report.

FBI Laboratory examiners Green and Wieners both stated that after

seeing the April 13 Negativo Report, they took another look at the Mayfield

identification. Wieners told the OIG that he was still concerned about the

upper left area of the print, and that he searched unsuccessfully on the known

prints for all 10 of Mayfield's fingers for details that would correspond to the

upper left portion, consistent with a "separate touch" explanation. Green and

T.,r-,,. f",,,'rf'_ .... 1___1__1 .LI_ _a- J-l_ " _._,,= .... JL" ¢1_

wieners both told the uiu that they again conciuucu uiaL un_ pu_ uun ui u_

print was either made by a different person or was made by a different part of

Mayfield's finger (such as the extreme tip) that was not recorded on the inked

10-print cards. As a result, the Laboratory told the CTD that it stood by its

identification of NIayfield. Early on April 15, the CONUS 4 SSA of the CTD

reported in an e-mail to the Portland Division that, "! spoke with the lab this

morning and they are absolutely confident that they have a match on the

print. - No doubt about it!!!! - They will testify in any court you swear them

into."

On the evening of April 16, the Madrid Legat met with the Director of the

SNP Laboratory, and obtained further information regarding the April 13

Negativo Report. The Madrid Legat described this meeting in an e-mail to the

CONUS 4 SSA, Cummings, and others, dated April 17:

[The Director of the SNP Laboratory] advised that his fingerprint

technicians had reached a preliminary conclusion that the latent

was not a match [with Mayfield] based on the number of ridges

between two identifiable points to the left of the arch going up to

the top left corner and the measurement of a small ridge in that

same area. They did see many points of similarity but the above

criteria led them to the conclusion of a negative match.

30 "Deca-dactylar impressions" are fingerprints for a known individual recorded on a

10-print fingerprint card.

52
[The Director of the SNP Laboratory] added that the finding was

being considered preliminary at this time, NOT FINAL, and that he

would be happy to receive [an] FBI expert, to discuss their

differences any time next week.

The Madrid Legat's April 17 e-mail reveals that the SNP examiners, like

the FBI examiners, found that details in the upper left portion of LFP 17 could

not be matched to Mayfield. Unlike the FBI examiners, however, the SNP did

not explain this dissimilarity as a separate touch by a different person or a

different part of Mayfield's finger.

Several officials in the FBI and DOJ independently came to the

conclusion that a meeting should be arranged between the FBI Laboratory and

the SNP to discuss the April 13 Negativo Report. SAC Jordan and the U.S.

Attorney's Office in Portland urged the FBI Laboratory to send someone to

Spain to find out exactly why the SNP was disagreeing with the identification of

Mayfield and to resolve any differences between the laboratories. The CTD also

believed that the meeting was a way to begin to improve overall

cunmiunicatiun_ between the FBI and the SNP. Thus, an SSA from ETiU told

the Laboratory in an e-mail that "the fingerprint identification gives us the

perfect lead to get people on the ground [in Spain] to assist and to open the

flow of information .... "

On April 16, the Acting Section Chief in the FBI Laboratory responsible

for the LPU cautioned the ETIU in an e-mail response that "we can't be about

the business to try and convince another Laboratory to change their conclusion

to concur with ours," but agreed that "in light of the situation, it would be

productive to have face to face talks with the Spanish to help all involved

understand what the Spanish mean when they say 'Negative.' Does that mean

their examination resulted in a 'non-identification' conclusion or was the result

of their examination 'fnconclusive.' This is a very important distinction, _w}iich

needs to be fleshed out." 31

The Acting Section Chief in the FBI Laboratory decided to send Wieners

to Madrid to meet with the SNP regarding the Mayfield fingerprint

identification. In advance of that meeting, Green prepared a new set of charted

enlargements for Wieners to use in Spain, along with a textual description of

31 As explained in Chapter Three, the FBI LPU distinguishes between an "exclusion"

result (which is what the Acting Section Chief was referring to as "non-identification") and an

"inconclusive" result. An exclusion result is a finding that the subject did not make the latent

fingerprint; an inconclusive result occurs when the examiner is unable to identify or exclude

the subject. The SNP witnesses interviewed by the OIG indicated that the SNP does not

formally recognize this distinction, but rather assigns a "negative" determination to any

comparison that does not result in an identification.

53
the similarities used to support the identification. The new charted

enlargements included several additional Level 3 details (very tiny features

such as incipient dots or ridges, pores, and ridge edge shapes) that Green had

not previously marked on the enlargements he prepared on March 22. The

enlargements and textual descriptions were delivered to the Madrid Legat in

Madrid on April 19 and the descriptions were translated into Spanish for the

meeting, a2

Wieners told the OIG that, although he had not performed a complete

examination of LFP 17 and the known prints for Mayfield at the time of the

original identification, by the time he left for Madrid he had become as familiar

with the prints as if he had conducted a complete examination. On

approximately April 17, Wieners visited ITOS I in preparation for his April 21

meeting with SNP officials. Wieners told the OIG that this visit was the first

time he saw a photograph of the bag. Wieners stated that the photograph

made the bag look like a small shopping bag. Wieners did not notice anything

in the photograph indicating that more than one fingerprint was found on the

bag.

G. The April 21 Meeting in Madrid

On April 2 1, Wieners met with officials of the SNP in Madrid to discuss

the identification of LFP 17. Wieners was accompanied by the Madrid Legat

and an ETIU SSA who was stationed in Madrid at that time. Approximately 10

officials of the SNP attended the meeting. The Director of the SNP Laboratory

was unavailable to attend the meeting. A Deputy Director attended the

meeting as the senior representative of the SNP Laboratory. The meeting was

also attended by the SNP Section Chief who authored the April 13 Negativo

Report, and his supervisor, along with other fingerprint specialists from the

SNP. The Madrid Legat served as translator.

According to Wieners and other participants in the meeting, Wieners

made a presentation of the characteristics that the FBi relied on in making its

identification, utilizing the charts and textual descriptions that Green had

prepared earlier. Among other things, Wieners explained how the FBI relied on

Level 3 details to make its identification. According to witnesses and

contemporaneous written accounts, an SNP representative acknowledged that

the SNP did not utilize such details in comparing the latent print to Mayfield's

prints.

32 These charted enlargements and textual descriptions are included in Appendix B to

this report.

54
After Wieners completed his presentation, one of the examiners from the

SNP gave a presentation regarding the SNP's findings. According to the FBI

participants at the meeting, the SNP examiner said that the SNP found eight

points of similarity between LFP 17 and Mayfield's known prints, but that the

SNP found several differences that concerned them. Among other things, the

SNP found that details in the upper left portion of the latent fingerprint did not

match Mayfield's prints. The SNP also pointed out that the ridges in the very

bottom part of the fingerprint, corresponding with the area of the finger below

the joint, were shaped differently in LFP 17 than in Mayfield's print.

According to the FBI participants at the meeting, Wieners provided

explanations for each of the dissimilarities identified by the SNP. He explained

that the FBI saw a gap between the main part of LFP 17 and the upper portion,

possibly related to a wrinkle in the plastic bag, and that the FBI concluded that

the upper part of the print was the result of a second touch. _Wieners also

explained the difference in the area below the joint as being caused by pressure

or a separate touch, as evidenced by the large gap in the print in this area.

fT_l.... ^ T'_T'_I ..... L" ---' ..... L -- IJL.I_ _

i ii_ P Dl p_U Ll_JIp_tlIL_ tLne Madrid Legat, an ETiU SSA, and Wieners) told

the OIG that most or nearly all of the SNP examiners seemed to be impressed

by Wieners' presentation. The Madrid Legat described the SNP's reaction to

Wieners' presentation in a memorandum that he prepared the next day:

Unit Chief Wieners provided satisfactory explanations for each of

their questions and at the conclusion of the meeting all of the SNP

personnel seemed satisfied with the FBI's identification.

In his interview with the OIG, however, the Madrid Legat clarified this

statement. He stated that at the end of that meeting he felt that the SNP

representatives were sufficiently impressed with Wieners' presentation to agree

to go back and conduct a reexamination of t_e priflt. The Madr:id -Legat stated

that the SNP was not at the point of agreeing with the identification of Mayfield.

He _-'-' T LUIU the OiL,__ that at that time he had no confidence one way or another

about what the results of the SNP's reexamination would be. 33 An ETIU SSA

33 During his interview, the Madrid Legat also clarified the statement in his

memorandum that "all of the SNP personnel seemed satisfied" (emphasis added). He told the

OIG that there was one SNP examiner who specifically expressed disagreement with Wieners

during the meeting, but that other SNP examiners disagreed with the one examiner, who

eventually stopped arguing. Wieners and an ETIU SSA also recalled that there was at least one

SNP examiner who emphatically disagreed with Wieners during the meeting. The Madrid Legat

•admitted in his interview that he was not sure whether the dissenting examiner was

persuaded; he said that the dissenting SNP examiner did not ever explicitly say he was

persuaded that Wieners was right. The Madrid Legat's description of the dissenting SNP

examiner during his interview also differed from a statement that he made in a declaration filed

in Mayfield's civil action that "I believe there were one or two SNP Laboratory officials who

(continued)

55
(who spoke Spanish) and Wieners (who was relying on the Madrid Legat for a

translation) both told the OIG that they came away from the meeting with the

expectation that the SNP would eventually agree with the FBI's fingerprint

identification of Mayfield.

However, two SNP officials who participated in the meeting (the SNP

Section Chief and his supervisor) gave a different account of the meeting to the

OIG. These witnesses stated that the SNP participants were impressed with

the detail and meticulousness of Wieners' presentation, but they denied that

anyone from the SNP expressed agreement with the FBI's conclusions. The

SNP witnesses said that at the end of the April 21 meeting, they agreed to take

another look at the identification. The Director of the SNP Laboratory (who has

since accepted another position) told the OIG that following the April 21

meeting he ordered three teams from the Laboratory to reexamine LFP 17 and

the Mayfield prints.

H. Late April- Early May

According to FBI witnesses and documents, the Mayfields continued to

be sus after the FISA search of their home.

Also, FBI documents reported that

on the evening of Mayfield _began an attempt to make surveillance, as

apparent from his driving. He engaged in pulling into driveways and cul-desacs, only to quickly turn around. He would drive into parking lots, sit for a

few moments and then pull out. He circled his residence several times and

drove slowly. When he eventually pulled into the driveway, he sat in the car for

an e-xte-rided pe-_iod." ................

Mayfield located the van at the store

whose name appeared on the outside of the van. The FBI believed that

Mayfield was checking to ensure that the van belonged to a legitimate business

enterprise. On April 16, Mona Mayfield was observed using binoculars in the

lot of _,ld's law office.

initially expressed disagreement, but they eventually appeared to be persuaded by their SNP

colleagues that Unit Chief Wieners' explanations were satisfactory."

56
2. The FBI's investigative plan and theories regarding

............ Mayfield's involvement in the bombings ................

In mid'to-late April, as the investigation of Mayfield neared the end of its

first month, the FBi evaluated the status of the investigation and the theories

regarding Mayfield's involvement in the bombings. For instance, in an e-mail

dated April 16, the CONUS 4 SSA told the Portland Division that he was being

asked for a "game plan" concerning the Mayfield investigation and asked the

Portland Division how long it would take to review the evidence _ to date.

He proposed the following investigative timetable:

Our FISA expires _- to date we have no additional evidence

linking Ma¥field to the bombings. As [Portland Lead Case Agent 2]

expressed- if he is guilty- he is one cool customer. Thus - after

you have reviewed all the evidence- and feel comfortable stating

that you have exhausted all investigative avenues in linking

Mayfield to the bombings- I would suggest bringing him in for an

57
interview (Polygraph?) -

_. If we use the first week in June as a target date for an

interview- that would give us a solid 5-6 weeks to review the

evidence we have and to make a well founded investigative

determination as to Mayfieid's invoivement. 34

In an e-mail to an ETIU SSA and the Madrid Legat dated April 19, the

CONUS 4 SSA stated"

To date- we have found no corroborating evidence linking Mayfield

to the bombing. _, searches on his home and office

are negative to date - but we continue to review

physical surveillance has

revealed very little. Records reveal no travel by Mayfield or his wife

as both have expired passports .... At this time, we are leaning

toward the theory that Mayfield touched the bag in the U.S. and

the bag was transported by a third unknown party to Europe. If

no additional evidence is found - our rough/preliminary

investi is to cc " an interview oi lvlaynela

If additional evidence is found,

we will continue with FISA coverage and the investigation.

FBI witnesses stated that the FBI intended to follow the investigative

plan outlined in the e-mails setforth above. Lead Case Agent ! told us that the

FBI anticipated having the analytical work corn _d or substantially

completed at which point FBI

agents would approach Mayfield and request an interview. He said that the

plan did not call for them to arrest Mayfield at that time. Similarly, Lead Case

Agent 2 said that the plan was to continue surveillance of Mayfield, continue

analyzing the information already collected, and then approach Mayfield in late

May or early June for an interview. ThePortland SSA said that the Portland

Division wanted to use the remainder of April and May to complete its review

and analysis of the material seized pursuant to the FISA searches and then

have Lead Case Agent 1 and Lead Case Agent 2 approach Mayfield for an

interview. She also said that FBI Headquarters and the U.S. Attorney's Office

were in agreement with this plan. AUSA 2 told the OIG that the investigative

plan called for the FBI to conduct a "_ approach" of Mayfield in June, which

34 Lead Case Agent 2 told us that she had referred to Mayfield as "one cool customer"

because after the Madrid bombings there were several related events (primarily an April 3

apartment s in Madrid involving sus in the SNP's March 1 1 train bombin s

investigation)

_. She said that if Mayfield had any connections to these activities, "he was the

coolest person I've ever seen."

58
meant that the FBI would attempt to interview, but not necessarily arrest,

Mayfield at that time.

Witnesses and documents also indicated that, by late April, the FBI was

primarily pursuing two theories regarding Mayfieid's involvement in the Madrid

bombings. According to an FBI summary of the Mayfield investigation

prepared by the CONUS 4 analyst and approved by the Portland SSA and Lead

Case Agent 1"

Either Mayfield himself traveled to Spain and had contact with the

bag there, perhaps while knowingly participating in the bombings;

or Mayfield came into physical contact with the bag while it was in

the United States, after which he or some other individual shipped

the bag to Spain or some other individual traveled with it to Spain.

To date, investigation suggests it is extremely unlikely Mayfield

traveled under his own name to Spain, although the possibility

exists that he has an alias that has not yet come to light. Given

the character and known terrorism ties of several of his associates,

IL.'_- _pp ........... Cctl ;5 pU_lUIG :L1-- LLI_II_t _J-L 5UIIICUII_ _1_ 111 LII_ _1__ _'_- _LI__ comm-uni is the link t'_

between Mayfield and the Madrid

bombings.

Indeed, ITOS I Section Chief Cummings told us that while he initially

believed that Mayfield was knowingly involved in the Madrid bombings,

as time passed and the results of the investigation were reviewed, he

came to believe that Mayfield was probably an unwitting participant.

3. The FBI discovers material

59
i. The Decision to Arrest Mayfieid on a Material Witness Warrant

The Madrid Legat told the OIG that on May 4, 2004, he received a

telephone call from a reporter in the Paris Bureau of the Los Angeles Times,

who asked whether two fingerprint experts could disagree over a single print.

According to the Madrid Legat, the reporter also asked _what about this

American" whose print was found in connection with the Madrid bombings.

The Madrid Legat said he referred the reporter to the SNP and he notified the

ETIU of the reporter's inquiry. Based on our investigation, this was the first

indication of a leak of information about Mayfield.

The Portland SSA said that she learned about the possible media leak

early on May 4, and notified others in the Portland Division and the U.S.

Attorney's Office. Later that day, a meeting was held between Immergut (the

U.S. Attorney), SAC Jordan and others from the Portland Division, and the U.S.

Attorney's Office to discuss the appropriate steps in light of the leak. According

to witnesses, Jordan stated at this meeting that he wanted to execute the

material witness warrant because he could not guarantee that the Portland

Division would be able to keep Mayfield under 24-hour surveillance and

prevent him from fleeing if a media leak occurred. Immergut told the O!G that

shortly after the meeting, she called Chris Wray (Assistant Attorney General for

the DOJ Criminal Division) and David Nahmias (Deputy Assistant Attorney

General for the DOJ Criminal Division) to discuss the leak issue and whether

to seek a material witness warrant at that time. She said that, among other

things, they discussed whether to delay using the material witness warrant to

gather additional intelligence. According to Immergut, Nahmias told her that

the DOJ Criminal Divisioi_ would approve filing the material Witness wa_rrant

against Mayfield and pursuing criminal search warrants if the FBI felt strongly

that it was necessary to proceed quickly to ensure against risk of flight and

destruction of evidence. At this stage, the information known to the FBI and

the U.S. Attorney's Office regarding the fingerprint dispute between the FBI and

SNP was that the SNP was still reviewing the relevant prints after Wieners'

April 21 meeting in Madrid with SNP officials and they had not yet issued a

final report.

According to numerous witnesses interviewed by the OIG, there was

considerable discussion, and some disagreement, both within and between the

FBI and DOJ concerning whether to seek a material witness warrant as a

result of the leaks. Cummings (Section Chief of ITOS I) told the OIG that FBI \

Headquarters got into a _heated" discussion with FBI Portland about what to

60
do as a result of the leaks. Cummings said that the Portland Division wanted

to "take Mayfield down" because of the leaks, since agents were worried they

might lose him. Cummings said he told the Portland Division that its job was

intelligence collection and that agents should not take Mayfield into custody

until all intelligence had been gathered. Cummings said he told Portland to get

more people for surveillance if needed. He said he also told Portland that there

was more work to be done and he did not want to lose the opportunity to

possibly "recruit" Mayfield to cooperate with the FBI concerning additional

potential suspects. Ultimately, Cummings agreed to let Portland agents

approach Mayfield for an interview with a material witness warrant "in their

pocket" to be used only if needed. Cummings told us that he stressed to the

Portland Division that the goal was to approach Mayfield quietly and privately

so that Mayfield might cooperate. Cummings said he was adamant that he did

not want Mayfield simply arrested

One of the Deputy Chiefs in the DOJ CTS said that from the outset he

had reservations about authorizing the arrest of Mayfield as a material witness.

The Deputy Chief said, "I was concerned that we didn't have enough to show

that Mr. Mayfield was unlikely to appear if we served him with a subpoena."

The Deputy Chief said he discussed his concerns with others, including the

Portland AUSAs and "the leadership of the [DOJ]," some of whom shared his

concerns. However, he said he also felt that if Mayfield was involved in any

way with the Madrid bombings, it would provide him with an extremely strong

incentive to flee and "that it really wasn't that much of a stretch to conclude

that we had enough." In that regard, the Deputy Chief further said he did not

think the use of a material witness warrant was inappropriate but rather a

judgment call as to whether there was enough evidence to support a finding

that Mayfield was unlikely to appear in response to a subpoena. He said,

"[A]nd to the extent that it mighthave been a close case, that the way to go was

to let the judge decide conclusively whether there was enough."

Immergut said that because of the gravity of the Madrid bombings, the

escalating leaks in the case; and because Mayfieid appeared to suspect he was

under surveillance, the SAC of the FBI Portland Division felt strongly that the

government should seek a material witness warrant. 35 She said she supported

the SAC's judgment on this issue.

3s On May 5, the Madrid Legat reported that the Spanish magazine, E1 Tiempo, had

called the U.S. Embassy in Spain to ask about an American suspect in the Madrid bombings.

E1 Tiempo indicated it would publish a story about the bombings in the near future. Also, on

May 6, while Mayfield was in custody but before the details of his arrest had been made public,

a reporter from Newsweek called the SAC of the Portland Division and advised that he was are

of specific facts concerning the investigation, including the existence of a latent fingerprint, a

subject residing in Portland, and an impending arrest.

61
Nahmias told us that there was a significant concern about risk of flight

and that the Mayfield matter was a _classic case for a material witness

warrant." In an e-mail dated May 5, Nahmias said of Mayfield, _He is at this

point what the 'material witness' designation is all about, and that is how we

should approach him." Nahmias said that Assistant Attorney General Wray

ultimately made the decision to authorize the use of the material witness

warrant based upon Immergut's recommendation. Wray acknowledged that he

authorized the material witness warrant.

Witnesses from the FBI CTD, the FBI Portland Division, the DOJ CTS,

and the U.S. Attorney's Office stated that they did not believe the government

had enough evidence to charge Mayfield with a criminal offense at that time.

We found no evidence that anyone in the FBI or at DOJ advocated that course

of action, a6

Witnesses from the FBI Portland Division and the U.S. Attorneyls Office

said the prosecutors planned to present the material witness and criminal

search warrants to the judge for authorization on the morning of May 6. The

FBI and DOJ wanted the Portland Division agents to approach Mayfieid and

seek to interview him. The plan contemplated that if he agreed to be

interviewed, the agents would call the U.S. Attorney's Office to see if they

should still execute the material witness warrant. If Mayfield refused to be

interviewed, the agents would execute the material witness warrant and take

Mayfleld into custody.

J. Preparation of the Affidavits in Support of the Material

Witmess and Search Warrants

As previously noted, FBI Portland and the U.S. Attorney's Office had

begun preparing a material witness warrant and supporting_affidavit in late

March as a '_contingency plan" in the event that the FBI's in, e-rest in Mayfield

became public. The U.S. Attorney's Office also prepared criminal search

warrants and affidavits for Mayfieid's home, cars, and law office. The U.S.

Attorney's Office prepared a separate affidavit for the law office search because

36 In an e-mail dated May 5, 2004, the Public Affairs Specialist for the FBI Portland

Division stated that _'there is not enough other evidence to arrest [Mayfield] on a criminal

charge." She told the OIG that as a Public Affairs Specialist, she knew the Mayfield case would

be a high-profile matter and she attended several briefings in the Portland Division concerning

the Mayfield investigation to learn more about the case. She said that agents in the Portland

Division did not believe there was sufficient evidence to charge Mayfield criminally. In an

August 4, 2005, letter to the OIG and OPR, Mayfield's attorneys stated that the May 5 e-mail

demonstrates that'_the FBI did not have probable cause to arrest [Mayfield] for a crime." As

stated previously, numerous government witnesses told the OIG that they believed that there

was not sufficient evidence to charge Mayfield criminally, but there was sufficient evidence to

arrest him as a material witness.

62
of the need to describe additional safeguards to minimize the disclosure of

material subject to the attorney-client privilege. A Portland SA (referred to in

this report as the original FBI affiant) was originally assigned to serve as the

affiant and participated in preparing early drafts of the affidavits. AUSA 2 was

the primary participant from the U.S. Attorney's Office.

In April, the decision was made that Lead Case Agent 1 would be the

affiant because he was a more experienced investigator than the original FBI

affiant. In early May, however, Lead Case Agent 1 became concerned that he

might be "tainted" as an affiant because he had previously reviewed

privileged documents seized from Mayfield's law office during the

FISA search.

On May 5, 2004, the Portland SSA decided to replace Lead Case Agent 1

as the affiant with SA Richard Werder. Werder had only limited involvement in

the Mayfield investigation prior to that time. Werder said he then spent two to

three hours reviewing a stack of documents provided to him by Lead Case

Agent 1 to verify the information in the affidavits. Lead Case Agent 1 and

wcrucr LUiUthe _,Jl_ LII_iLVV_IU_/- Ill,lUg, dt 111U_L_ 111111U1 _UIL_ LU _IlIIU_IVIL_,

which previously had been drafted by AUSA 2, the original FBI affiant, and

Lead Case Agent 1. On May 6, Werder signed the affidavits and they were

submitted to the Court.

The Werder affidavits contain a detailed summary of the FBI's

investigation of Mayfield and the basis for the FBI's belief that Mayfield was a

material witness and that he was in possession of evidence relevant to the

investigation of the Madrid train bombings. Three sections of the affidavits

became the focus of the OIG's review: a paragraph describing the original

identification of Mayfield by the FBI Laboratory LPU, a paragraph describing

the doubts expressed by the SNP regarding the FBI's fingerprint identification

and the April 21 meeting in Madrid, and two paragraphs describing the FBI's

beliefs regarding the likelihood that Mayfield had traveled to Spain under a

false or fictitious name. These paragraphs are discussed in the subsections

below.

1, Affidavit description of the FBI Laboratory's

identification of Mayfield

Paragraph seven of the affidavit submitted in support of the material

witness warrant stated:

On March 17, 2004, the SNP provided the FBI with

photographic images of latent fingerprints that were recovered from

the plastic bag containing the detonators that was found in the

Kangoo van, including Latent Finger Print # 17 (hereinafter

63
LFP# 17). All the fingerprints were provided to the Latent Print Unit

at the FBI Laboratory in Quantico, Virginia. Senior Fingerprint

Examiner Terry Green, submitted LFP# 17 into the Automated

Fingerprint Identification System (AFIS) for possible matches.

BRANDON BiERi MAY'FiELD was identified as a potential match to

the unknown print. Senior Fingerprint Examiner Green then

requested and received two known fingerprint cards of MAYFIELD.

The first card contained the known prints of MAYFIELD's obtained

in connection with a criminal arrest for burglary in Wichita,

Kansas on December 22, 1984. The second fingerprint card

contained the known prints of MAYFIELD obtained during his

service in the United States Army. Both cards containing the

known fingerprints of MAYFIELD were compared to LFP# 17

received from Madrid. Senior Fingerprint Examiner Green

identified in excess of 15 points of identification during his

comparison and has advised the affiant that he considers the

match to be a 100% identification of BRANDON BIERI MAYFIELD.

The 100% identification was verified by Supervisory Fingerprint

Specialist Michael Wieners, Unit Chief, Latent Print Unit, and

Fingerprint Examiner John T. Massey, who is a retired FBI

fingerprint examiner with over 30 years of experience on contract

with the Latent Fingerprint Section of the FBI Laboratory.

This paragraph was originally drafted by the original FBI affiant and by

AUSA 2. AUSA 2 and the original FBI affiant said they each called Terry Green

at the FBI Laboratory LPU on March 23, to obtain detailed information about

the identification of Mayfield for the affidavit. AUSA 2's handwritten notes of

her conversation with Green shortly after the identification was made include

the words "positive - 100% identification." Green and AUSA 2 both stated that

AUSA 2 read the draft language regarding the identification of LFP 17 to Green

on March 23, and that Green approved it. Lead Case Agent 1 told the OIG that

he confirmed this language again in late April by reading it over the telephone

to Green.

2. Affidavit description of the SNP doubts and the April 21

meeting

In late April, Lead Case Agent 1 took responsibility for drafting language

for the affidavits describing the April 13 Negativo Report and the April 21

meeting in Madrid. The language submitted to the Court in paragraph eight of

the affidavit supporting the material witness warrant stated"

In mid-April it became apparent that the preliminary

findings of the Forensic Science Division of the SNP concerning the

fingerprint were not consistent with those of the FBI Laboratory.

64
As a result, a meeting was held between a representative of the

FBI's Latent Fingerprint Unit and approximately ten members of

the Forensic Science Division of the SNP, including representatives

from both the automatic fingerprint identification section and the

latent fingerprint section on April 2 i, 2004. Before the meeting

SNP personnel indicated that their report of the examination of

LP# 17 was preliminary and that a final determination had not

been rendered. The SNP also indicated that they had not gone into

the level three characteristics (ridge edges, ridge breaks, pores, and

incipient ridge events) utilized by the FBI when making their initial

comparison. At the conclusion of the meeting it was believed that

the SNP felt satisfied with the FBI Laboratory's identification of

LFP# 17 and indicated that the Forensic Science Division intended

to continue its analysis of the latent print comparison. I have been

advised that the FBI lab stands by their conclusion of a 100%

positive identification that LFP# 17 as [sic] the fingerprint of

BRANDON BIERI MAYFIELD.

This language, which does not specifically- mention the April 13 Negativo

Report, was considerably less specific in its final form than the language in

earlier drafts regarding the SNP's doubts about the fingerprint identification.

Lead Case Agent 1 had originally drafted language that stated:

On April 13, 2004, the Forensic Science Division of the SNP

issued a report indicating that it conducted an analysis and

comparison of three photographic copies of fingerprint cards of

BRANDON BIERI MAYFIELD with the "latent prints discovered

during the different crime scene inspections" carried out after the

March 11, 2004 terrorist attacks. An English translation of the

laboratory report indicates that the result of the comparison was

negative, although it is unclear whether this term was used to

indicate that the examination resulted in a "non-identification,"

was "inconclusive," or carried some other meaning. The report

also indicates that analysis of the impressions is ongoing leaving

uncertainty whether the comparison was complete and a finale

[sic] determination rendered. Given the FBI Laboratory's definitive

identification and uncertainties over the SNP report, a meeting was

arranged ....

On April 29, Lead Case Agent 1 sent the draft affidavit to the Madrid

Legat for his review to ensure that the affidavit was accurate. The Madrid

Legat responded by e-mail that the April 13 Negativo Report had been provided

by sources in the SNP in confidence, without the approval of the judge in

charge of the investigation in Spain, and should not be described in detail in

the affidavits. However, the U.S. Attorney's Office insisted that some reference

65
to the April 13 Negativo Report be disclosed in the affidavit. In the next draft,

dated May 4, the U.S. Attorney's Office and the Portland Division had

substituted the less specific language that was contained in the final version of

the affidavit. This less specific description was included in the affidavit despite

the Madrid Legat's continued objection to making any reference to the April i3

Negativo Report public.

Lead Case Agent 1 told the OIG that the description of the April 21

meeting used in the final affidavit, including the statement that the SNP "felt

satisfied with the FBI's identification," was derived from the April 22

memorandum written by the Madrid Legat regarding the meeting. As

previously noted, the Madrid Legat's April 22 memorandum stated that "at the

conclusion of the meeting all of the SNP personnel seemed satisfied with the

FBI's identification." Lead Case Agent 1 told the OIG that he did not read this

description to Green, and that he could not recall whether he reviewed it with

anyone who attended the April 21 meeting. The Madrid Legat told the OIG that

he did not recall discussing this statement in the affidavit with Lead Case

Agent 1.

3. Affidavit description of the FBI's beliefs regarding travel

by Mayfield to Spain

The affidavit submitted in support of the material witness warrant also

contained statements pertaining to Mayfield's alleged travel in connection with

the Madrid bombings. Specifically, paragraph 21 of the affidavit stated: "The

investigation thus far has revealed no records of travel outside the United

States in the name of BRANDON BIERI MAYFIELD." Paragraph 23 stated:

"Since no record of travel or travel documents have been found in the name of

BRANDON BIERI MAYFIELD, it is believed that MAYFIELD may have traveled

under a false or fictitious name, with false or fictitious documents." Paragraph

24 stated: "I believe that based upon the likelihood of false travel documents in

existence, and the serious nature of the potential charges, Mayfield may

attempt to flee the country if served with a subpoena to appear before the

federal grand jury." Variants of these statements appeared in the earliest

drafts of the affidavit prepared by AUSA 2 and the original FBI affiant in late

March.

The Portland SSA told us she reviewed the affidavits in her role as

supervisor. She stated that the basis for the statement in paragraph 24 of the

affidavit about "the likelihood of false travel documents in existence" was that

when the FBI had conducted the FISA search of Mayfield's home,

Werder signed the affidavit) also told

us that he was avcare that the FISA search

66
However, we determined that the language referrin_ to "the likelihood of

false travel documents in existence" was first drafted in before the FISA

searches of the Mayfield residence were conducted. The FBI and U.S.

Attorney's Office witnesses we questioned about this language did not identify

any other evidence supporting "the likelihood of false travel -' ....... " cmcumcnLs, except

the Laboratory's identification of Mayfield as the source of a fingerprint found

in Spain.

II. The Arrest of Mayfield and Subsequent Events

A. Arrest of Mayfield

The Portland SSA told the OIG that she had a meeting with Lead Case

Agent 1 and Lead Case Agent 2 prior to May 6 (the day of the arrest), to discuss

the approach of Mayfield. She said the agents concurred with the plan to

attempt to "smooth talk him and try to get him to cooperate." The Portland

SSA selected another FBI SA (referred to in this report as the Assisting Agent)

WILI1 IIIL_YIII:tL1UII_LI kei°i°orisin experience to assist I.J_du__T _1 k..db_r'_ /'_-g_llL^ _- zn Oil---

approaching Mayfield. The Assisting Agent said he met with Lead Case Agent 2

on May 4, to "get up to speed on the case." On May 5, there was a briefing on

the matter with Portland Division agents and the U.S. Attorney's Office.

Witnesses stated that SAC Jordan emphasized at this meeting that Mayfield

should be approached and treated professionally.

On the morning of May 6, the government presented to Robert E. Jones,

Senior District Court Judge for the District of Oregon, the material witness

warrant and criminal search warrants for Mayfield's office, residence, and four

vehicles. The judge authorized all of the warrants. With respect to the search

of Mayfield's law office, the judge imposed specific procedures to be employed

during the search to safeguard materials subject to attorney-client privilege.

Lead Case Agent 2 said she and the Assisting Agent went to Mayfield's

office at approximately 9 or 9:30 a.m. on May 6. She said there was no one

other than Mayfield in his office. Another FBI agent waited outside in case any

of Mayfield's clients came to the office. Lead Case Agent 2 and the Assisting

Agent said that they knocked on the door to the office and Mayfield let them in.

They said they identified themselves as FBI agents and that Mayfield

immediately made it clear that he did not want to talk with them. Lead Case

Agent 2 said Mayfield said, "I don't want you in my office. I have client files in

here. I don't want to talk with you." The Assisting Agent also told the OIG that

Mayfield stated that he had client files in his office.

67
Both Lead Case Agent 2 and the Assisting Agent said that they did not

get a chance to explain their presence to Mayfield because as soon as he saw

their FBI identification he said he wanted them out of his office. They said that

the Assisting Agent then told Mayfield he was under arrest and that they had

search warrants for his house and oIIiCe_r". _'lne Assisting Agent 'nahum---'-_-_uu_u

Mayfield's arms behind his back. He said Mayfield was cooperative but would

not ((engage" with the agents. Lead Case Agent 2 said that the Assisting Agent

read the material witness and search warrants to Mayfield. The Assisting

Agent said he read the search warrants to Mayfield and let Mayfield read the

cover page of the material witness warrant. Neither the Assisting Agent nor

Lead Case Agent 2 gave Mayfield the affidavit supporting the material witness

warrant at that time.

Lead Case Agent 2 and the Assisting Agent said that the Assisting Agent

then tried to talk to Mayfield about why the FBI was there. They said Mayfield

responded that he wanted to have his hearing, that he knew the judge, and

that he could not believe that the judge had signed the warrant. Lead Case

Agent 2 said that neither she nor the Assisting Agent mentioned the Madrid

S_tI-tJll I:tlILI lll_tLt::;l l_tl WltllU_) Wi:a.l I _IlL_ bombings at that point, but that the ..... '.... -' "--'-' ---'_- -*_

mentioned the nature of the potential charges against Mayfield. The Assisting

Agent said they were at Mayfield's office for approximately 20 minutes.

The Assisting Agent and Lead Case Agent 2 led Mayfield to the FBI squad

car. The Assisting Agent asked Mayfield for his car keys to conduct the search

of Mayfield's car. The Assisting Agent told us that at that point, he told

Mayfield, "as far as I know, the media is right behind us and we don't want to

make a scene. "37 The Assisting Agent and Lead Case Agent 2 both said that

Mayfield declined to provide his car keys. Mayfield then asked for his

handcuffs to be placed in the front because he had an old shoulder injury that

caused him discomfort. Lead Case Agent 2 said they normally do not comply

with such requests, but they did so in this case. The Assisting Agent said he

agreed to switch the handcuffs in the hope that it would encourage Mayfield to

talk and be cooperative.

Lead Case Agent 2 said they drove Mayfield to the courthouse, which

took approximately 15 minutes. The agents asked Mayfield if there was anyone

they could call for him, and Mayfield said no. The Assisting Agent said that

after discussing the matter with the AUSAs, he gave a copy of the material

witness warrant affidavit to Mayfield and asked Mayfield if he had an attorney

37 The Assisting Agent told us that he had no specific knowledge that the media would

be there, but was aware that the media follows FBI activity via scanners and that the reason

the arrest was happening on that date was because of a possible media leak. He also said that

his mention of the media was part of his effort to get Mayfield to talk and cooperate in the

search of the car.

68
they could call for him. Mayfield asked them to call Tom Nelson, a local

attorney. AUSA 1 called Nelson and informed him of Mayfield's arrest.

The FBI then transferred custody of Mayfield to the United States

Marshals Service ( k:l.lIU u Olvi_}, wnicn iing_rplintcu pnutugi etpiicu ivietoViiCiu, l lie

FBI did not request or receive fingerprints or photographs from the USMS.

B. Criminal Searches and Witness Interviews

The FBI executed all of the search warrants on May 6. According to FBI

documents, the search of Mayfield's office began at 10:18 a.m. and was

concluded at 3 p.m. The search team removed approximately six boxes of

documents and items, including approximately two boxes of client files, a

Rolodex, numerous business cards, telephone logs, two computer hard drives,

multiple computer CDs and diskettes, a cellular telephone, and receipts and

bills.

In conducting the search of the law office, the FBI assigned two lawyeragents taznt)ng ULII_I-_} tO UlC tc_uu, t_

the court, the search team seized no material from the law office until the

lawyer-agents made an initial determination that the material fell within the

scope of the warrant. The search team reported that it seized approximately 25

percent of the office files. The files that were seized were further screened by a

"privilege AUSA" to identify and segregate privileged and non-privileged

material.

FBI documents indicate that the FBI spent three hours searching the

Mayfield residence on May 6, beginning at approximately 11:15 a.m. Prior to

executing the search warrant at the Mayfield residence, two Special Agents

interviewed Mona Mayfield, who denied that she or her husband had any

involvement in the Madrid bombings or any other terrorist acts. FBI agents

also interviewed or attempted to interview other Mayfield family members and

Jl P ]1 1 .... J-1 ....... --1 --L ....... L1 ....

relatives, including Mayfield's morner, iarner, []romer, anti NLEpIII(JLII_I.

The two Special Agents who interviewed Mona Mayfield sat with her while

the search was conducted. Lead Case Agent 1 was present for this search,

along with six other FBI agents. He said he was in charge of the search of the

residence and that the search team did a "good job" of getting in and out

without alerting the neighbors or the media. He also said that the search team

left the house in good condition, as From the home, the FBI seized

as Mona Mayfield was quoted in press accounts as stating that after the search, the

house looked as if it had been robbed, with rooms ransacked, closets emptied, and drawers

overturned.

69
approximately 80 items, including 4 computers, numerous computer diskettes

and CDs, credit cards, checkbooks, shipping receipts, passports, bank receipts,

videotapes, cassette tapes, 2 firearms, and other miscellaneous papers.

C. Post-Arrest Developments

1. Mayfield's initial court appearance

On the afternoon of May 6, Mayfield was brought before Judge Jones for

his initial appearance on the material witness warrant. Mayfield was

represented by Tom Nelson. The judge advised Mayfield that, as a material

witness, he was subject to being held without bail pending his appearance

before a grand jury. The judge also advised Mayfield that his options were to

"take the Fifth Amendment before the grand jury or... to testify in deposition

in perpetuation of your testimony or to testify before the grand jury." The

judge also told Mayfield that as soon as his testimony was obtained, Mayfield

could be released. The judge then ordered that the grand jury be brought in on

May 1 1 or that Mayfield be permitted to give deposition testimony by May 1 1.

Mayfield stated in court that the fingerprint was not his and if it was, he

had no idea how it got there. After consulting with his attorney, Mayfield asked

the judge if he could be released if he consented to a deposition that day. The

judge declined, stating that a deposition on that date would not be meaningful

]_0_:11.1_O _'hO _v, aav_rnrnont hncl nnt h_cl ennllgh time to finish conducting the .........

searches of the Mayfield residence, law office, and vehicles. Mayfield also

requested that he be released on special conditions pending his appearance

before the grand jury. The judge declined to release Mayfield, stating that

because of the "gravity of the matter, there is no way I can ensure the

appearance.., of this material witness at this time." 39

The judge placed a "gag order" on the government and Mayfield's

counsel, but he told Mayfield that he could tell people he was being held as a

material witness. The judge also prohibited the release of the aflqdavit by

anyone, including Mayfield. Further, the judge ordered that the agents

executing the search warrants return the premises to the condition they were

prior to the search. The Portland SSA, who attended the initial appearance,

a9 Although Mayfield was not charged with any criminal offenses at the time of his

arrest, the application and affidavit for the material witness warrant set forth several potential

federal crimes being investigated by a federal grand jury in connection with the Madrid

bombings. A conviction for those crimes carried a maximum sentence of death. In a

subsequent court hearing on May 17, Judge Jones stated: "If it's his fingerprint, unexplained

in - with detonators in Spain, [it] is a powerful reason for him to flee if he's facing capital

punishment."

70
told us she left the hearing and called the search team to make sure they left

the house in good condition.

2. The FBI's continuing investigation of Mayfield

During the May 6 searches, the FBI discovered keys to a bank safe

deposit box. On May 10, the government obtained a search warrant for that

safe deposit box. Inside the box the FBI found, among other items, $10,000 in

$100 bills. It was subsequently determined that the cash was the legitimate

property of Mona Mayfield, acquired pursuant to an inheritance.

In addition, after the execution of the searches, the FBI began reviewing

and analyzing the items, documents, and computer materials seized during

those searches. Among other things, the FBI found that the home computers

had accessed websites relating to the Spanish rail system, Spain's largest

airline, a Spanish airport, and a Spanish terrorist group known as "ETA." The

FBI also discovered pilot training logs demonstrating Mayfieid's experience as a

small aircraft pilot in the 1980s and a book chronicling the development of al

Qaeda.

3. Subsequent court proceedings involving Mayfield

On Friday, May 7, the Federal Public Defender, Steven Wax, and one of

his assistants, _;_*""_ _o_ we_ appnlnt_d tn replace Nelson as

Mayfield's counsel. On that same day, according to the court docket, the judge

advised counsel for Mayfield and the government that Mayfield's deposition

could begin at 1:30 p.m. that day, Mayfield could be released for the weekend

on electronic monitoring, and the deposition could resume on the morning of

Monday, May 10. After consulting with his counsel, Mayfield declined to be

deposed on that date. As a result, Mayfield remained incarcerated.

In a court hearing on May 10, the judge expressed concern about leaks

of sealed information to the media and noted that "there's been leakage on both

sides." The judge read into the record portions of several newspaper articles

that quoted anonymous government officials, Mayfield's prior counsel, and

Mayfield's relatives and family members discussing a variety of topics,

including the fingerprint identification, the conduct of the FBI's investigation of

Mayfield, Mayfield's detention under a false name, and the Mayfield family's

suspicion that his home had recently been entered surreptitiously. 40 Counsel

4o Documents indicate that almost immediately after the arrest of Mayfield, the DOJ,

the FBI, and the U.S. Attorney's Office began receiving numerous press inquiries concerning

Mayfield's arrest. As a result, the judge imposed a general "gag order" on May 6. However, the

newspaper articles read into the record by the judge on May 10 cited, among others,

anonymous government officials as their sources, in clear violation of the judge's May 6 "gag

order." An e-mail from a DOJ Public Affairs Officer said that he was told by two reporters that

(continued)

71
for both parties indicated to the judge that they were also concerned about

leaks and had begun drafting a joint "gag order. "41

Also on May 10, Mayfield's counsel requested that the grand jury session

be postponed from May i i to allow him additional time to consult with his

client. The attorney requested an adjournment until May 20, and later agreed

to May 21 as the date for Mayfield's grand jury appearance. The attorney also

agreed to notify the judge and the government in advance if Mayfield planned

to assert his Fifth Amendment privilege and refuse to testify. The judge stated:

"Apparently he is willing to remain in custody until this grand jury- until he

gets your advice." Mayfield's attorney responded: "That's correct, Your Honor."

Mayfield's counsel asked the judge to halt the government's review of the

evidence seized from Mayfield's law office, alleging that the review was

improper, and instead asked the judge to appoint a special master to assume

control of the evidence. The government objected and explained to the judge

the "taint procedure" it had followed as ordered by the judge upon execution of

the law office search warrant. The judge declined to halt the ongoing review

and instead ordered that the client files that were already reviewed by the taint

AUSA be brought to his chambers for his review. Those files were delivered to

the judge that same day.

On May 11 and May 14, Mayfield's counsel filed numerous motions

challenging the material witness procedure and the criminal searches of

Mayfield's home, office, and vehicles. Also on May 1 1, the judge entered an

order indicating that he had reviewed all of the seized attorney-client files and

withdrew from further government review certain privileged matters. All nonprivileged files were copied by the government and subsequently returned to

Mayfield's counsel.

During this period, counsel for both the government and Mayfield met

frequently to discuss possible scenarios under which Mayfield's testimony

their sources were from Portland. However, witnesses from both the FBI Portland Division and

the U.S. Attorney's Office denied that anyone from their offices leaked information about the

Mayfield case to the media. In addition, both the FBI Portland Division and the U.S. Attorney's

Office in May 2004 jointly requested that the FBI Office of Professional Responsibility, in

conjunction with the DOJ Office of Professional Responsibility, conduct an internal

investigation to attempt to discover the source of the leaks. The source of the leaks was never

uncovered.

41 Counsel subsequently presented to the judge a more stringent "gag order" which

prohibited the dissemination of sealed information by any government official, employee, or

counsel associated with Mayfield. The judge approved the gag order on May 11.

72
could be obtained prior to May 21. To that end, on May 13, the government

presented Mayfield's counsel with a "proffer letter" outlining the terms under

which an interview of Mayfield could be arranged before or in lieu of the

scheduled May 21 grand jury appearance. The parties thereafter exchanged

correspondence negotiating the terms of a proposed proffer, but could not agree

on several issues, including the scope of any immunity that would be granted

to Mayfield in connection with his interview.

In a court hearing on May 17, the parties indicated to the judge that they

were thus far unable to negotiate the terms of a mutually agreeable proffer

agreement. The judge noted the challenges faced by both parties:

As I look at it, both sides are in a catch-22 position. Legally, the

defense doesn't want to commit to giving a proffer or deposition or

grand jury testimony until they know what the Government's got

against them. The Government doesn't want to tell the ....

material witness what they have.., so that answers can't be

tailored to any questions that they normally have to ask of a

witness. And so they don't want to . . . get rehearsed testimony to

questions.

The judge also asked AUSA 1 what the government would do in the event that

Mayfield asserted his Fifth Amendment privilege before the grand jury. AUSA 1

responded "umt it would be r.... A to .,_ _'_ ' r.o decision whethor to compel

Mayfield's testimony pursuant to a grant of immunity. AUSA 1 also added that

the government would probably ask that the Court continue the matter for

several weeks in order to allow the government to finish its review of the

evidence seized during the May 6 searches in order to make the decision

whether to immunize Mayfield.

D. Mayfield's Detention

Following Mayfield's court appearance on May 6, the USMS transported

Mayfield to the Multnomah County Detention Center (MCDC), a maximum

security adult correctional facility in Portland. 42 The material witness statute

provides that if detention is ordered, the witness shall be confined in a

corrections facility and kept "separate, to the extent practicable, from persons

awaiting or serving sentences or being held in custody pending appeal."

18 U.S.C. § 3142(i)(2). The MCDC is under contract to the USMS to provide

detention facilities to the federal government. The USMS chose this facility to

42 Following his release, Mayfield made statements to the media regarding the

conditions of his confinement and its appropriateness in light of his status as a material

witness. The OIG addresses these issues here and in Chapter Six.

73
house Mayfield because its location is convenient to the courthouse where

Judge Jones ordered Mayfield's detention.

On May 6, 2004, AUSA 2 sent a memorandum to the USMS stating that

1........ 11_r _ i"_ 1 1

u_cause lwaynelci was being detained as a material witness, not a criminal

defendant, his arrest was governed by Federal Rule of Criminal Procedure 6(e)

and was considered to be secret. The AUSA's memorandum instructed the

USMS that neither the USMS nor the jail should release any information

regarding Mayfield's custody status, including his photographs. Because the

MCDC booking records are open to the public, the USMS and the MCDC

agreed that Mayfield would be booked under an alias, "Randy Taylor."

The AUSA's memorandum to the USMS did not give any further guidance

regarding how or where Mayfield should be confined. The Operations

Supervisor for the USMS made a handwritten notation on AUSA 2's

memorandum that stated "SUBJECT SHOULD BE KEPT SEPARATE FROM ALL

INDIVIDUALS FOR HIS OWN SAFETY," and forwarded the memorandum, by

facsimile, to the MCDC. The Operations Supervisor told us that she had a

L_lgpllUll_ UUIIVCI-_tLIUIIwith AUSA 2 at the time, but that she did not recall

whether she made the notation in response to something AUSA 2 said or on

her own initiative out of concern for Mayfield's safety.

At the MCDC Mayfield was searched for contraband, screened for

medical conditions, and sent to the classification station where a deputy

conducted a risk assessment to determine the section of the MCDC in which

Mayfield would be housed. The deputy on duty at the classification station told

us that at the time he was unaware that Mayfield was using an alias. He

stated that when he did a database search for prior arrest records under

Mayfield's alias, he found several from Florida. He then confronted Mayfield

about his failure to disclose these arrests. Mayfield did not reveal his identity,

but did deny the prior arrests. The deputy stated that he sent Mayfield back to

the waiting area while he completed his risk assessment. He stated that he

assessed Mayficld as low-risk, and accordingly assigned him to a ceil within the

general prison poPulation. The deputy told the OIG that he then happened to

recognize Mayfield from an internet news report. The deputy stated that he

then called Mayfield up to the desk and confronted him about not being

truthful regarding his identity. Mayfield responded that the USMS had told

him not to disclose his real name. The deputy told the OIG he became

concerned that other prisoners would recognize Mayfield, so he assigned

Mayfield to a cell in closed custody for Mayfield's protection.

From May 6 through May 12, 2004, Mayfield was housed in the MCDC's

fourth floor administrative segregation unit, a restrictive area where the more

dangerous and high-profile inmates are also maintained. Prisoners in the

segregation unit are each housed in separate cells and locked inside their cells

74
for 22 hours a day. The MCDC Captain said that although Mayfield still

needed to remain in restrictive custody for his protection, it was subsequently

determined that Mayfield was not a threat to the guards or to other prisoners

and therefore he was transferred on May 12 to the protective custody unit, the

lesser of the two restrictive custody units. The MCDC also houses other

prisoners in this unit who it considered to be "vulnerable" (those who are

physically weaker, who are new to the prison system, or have minor mental

disorders). Like other prisoners in this sixth floor unit, Mayfield was allowed to

commingle with other inmates in a common area for several hours per guard

shift. The cells in both the administrative segregation and the protective

custody units are enclosed by walls on all sides with a small, square opening in

the door, allowing the inmate to look out.

MCDC and Multnomah County Sheriff's Office (MCSO) officials told us

that their detention facility procedures reflect their sensitivities to the large

Muslim population that lives in the Portland area. The Multnomah County

detention facilities contain the only two Halal-certified kitchens in the states of

Oregon and Washington. 4a In addition, the detention facilities maintain a

supply of Korans and prayer rugs which are available to prisoners upon

request. Mayfield was provided with both.

According to USMS records, during his 2-week incarceration, Mayfield

was transported to the courthouse by the USMS four times. In addition, on

May 12, 2004, the USMS transported Mayfield to a judicial conference room so

he could meet with Oregon State Bar Professional Liability Fund counsel to

arrange to have another attorney cover his clients while he was incarcerated.

In accordance with USMS procedures, each time Mayfield was transported he

was handcuffed and shackled.

Also, in accordance with MCDC procedures, Mayfield was allowed to have

"contact" visits with his attorneys and "non-contact" visits (separated by a

window wall) with designated family members and friends. Because of the

possibility of contraband being provided to the inmate either intentionally or

unintentionally during "contact" visits, Mayfield was, according to MCDC

officials, routinely strip searched after these visits. He was also strip searched

when he was first booked in and each time he returned from court. Mayfield

had visitors, either family members or attorneys, on 9 of the 13 days that he

was incarcerated (excluding the day he was first incarcerated and the day he

was released). According to MCDC records, the only times visitors were denied

access to Mayfield were when Mayfield was at court and therefore unavailable,

when visits occurred outside the standard visiting hours, or when a visitor was

not on the approved list of visitors that had been designated by Mayfield.

43 In Halal-certified kitchens, the meat is prepared as prescribed by Muslim law.

75
According to the Chief Deputy for Corrections for the MCSO, special

accommodations were made for Mayfield regarding his attorneys' visits.

Mayfield's attorneys wanted to use a separate room, bring in documents, and

use a tape recorder. The Chief Deputy said that the MCDC was concerned

about the volume of materials that Mayfieid's attorneys wanted to bring into

i the MCDC because of the possible introduction of contraband, but they made

an exception and allowed them to do so. He said that it was a matter of trying

to balance Mayfield's legal needs against the MCDC's security needs. He also

stated that, while these meetings were observed by MCDC personnel for

security reasons, they were not monitored for content.

At the direction of the judge, the USMS made a conference room

available for Mayfield to work on his client files and to meet with a member of

the Oregon bar to arrange for another attorney to take over his cases.

E. The SNP's Reexamination of Latent Fingerprint 17

At the same time that the events leading to Mayfield's detention were

unfolding, the SNP was conducting its own reexamination of b_t" l / as

promised at the April 21 meeting in Madrid. In the weeks following the

April 21 meeting, the Madrid Legat repeatedly asked officials in the SNP for

updates regarding the status of the SNP's reexamination of LFP 17 and

Mayfield's prints. On May 4, the FBI CTD transmitted an FBI Letterhead

Mernn_nrtllrn II.HMI_.... _ tn the Madrid Legit fnr di._._ernin_tinn tn _he Spanish

government. The Madrid Legat told the OIG that he did not specifically recall

this LHM, but he had no reason to believe that it was not delivered to the

Spanish government. The LHM stated, among other things"

Because Mayfield's name and/or FBI investigation of Mayfield

appears likely to become public in the very near future, our plans

to intervie_v Mayfield have been significantly advanced. To

effectively interview Mayfield, we need the authority to detain him;

currently we cannot obtain such authority from our courts without

an official Spanish report identifying Latent Print # 17 from the

plastic bag recovered by your service from within the suspect

Kangoo van as Mayfield's. We would greatly appreciate a final

forensic report from your service as soon as possible, in an

unclassified format suitable for use in U.S. judicial proceedings.

As we discuss in Chapter Six, however, the statement in the LHM that Mayfield

could not be detained unless the SNP Laboratory_ identified him as the source

of LFP 17 was inaccurate.

76
As noted above, the former SNP Laboratory Director told the OIG he had

assigned three teams to reexamine LFP 17. The findings of these teams were

reported to him on or shortly after May 5. The findings of these review teams

were described to the OIG by three SNP officials who were involved in the

process. No written report of this reexamination was ever shared with the FBi

or the OIG.

According to the SNP officials we interviewed, the Spanish review teams

found that there were seven characteristics in LFP 17 that appeared to match

Mayfield, but that there were differences between the prints that could not be

reconciled. In particular, the SNP found that the dissimilarity in the upper left

portion of LFP 17 could not be explained as a "second touch" because the

pressure applied in that portion of the print was consistent with the rest of the

print and therefore indicated a single touch. The SNP also found discrepancies

in the spacing between details in the lower portion of the prints and

discrepancies in the curvature of some ridges in the prints. The former SNP

Laboratory Director told the OIG that on May 7 or May 8, he requested

additional opinions regarding LFP 17 from two outside experts affiliated with

other Spanish forensics laboratories, lie stated that only one of the outside

experts had time to review LFP 17 and the Mayfield prints, and that this expert

told him that the print did not match Mayfield's prints.

There are conflicting accounts as to whether the SNP immediately

informed the FBI of the findings of these review teams. The %rmer SNP

Laboratory Director told the OIG that he informed the Madrid Legat of the

results of the SNP's reexamination on May 11 or 12, when the SNP asked the

Madrid Legat for additional fingerprints of Mayfield. The Madrid Legat denied

to the OIG investigators that anyone from the SNP informed him that the SNP

had concluded that the FBI was wrong prior to May 19, when the SNP informed

him that it had identified Ouhnane Daoud. The OIG found no documentary

evidence showing that the SNP informed the FBI that it had concluded that

Mayfield was not the source of LFP 17 prior to May 19.

The contemporaneous documentation reviewed by the OIG reveals,

however, that at least by May 7, the day after Mayfield was arrested, the FBI

had been told by the SNP that there were disagreements within the SNP

Laboratory regarding the Mayfield identification, and the FBI had related this

fact to the U.S. Attorney's Office. During the period following the April 21

meeting, the Madrid Legat had made a number of calls to the SNP seeking

information on the status of the SNP's reexamination of LFP 17. On May 7, the

Madrid Legat wrote the following in an e-mail to an ETIU SSA and the ITOS I

Assistant Section Chief:

Regarding the SNP fingerprint report, it is still undecided as of

today. Some of their people agree with our finding, there is still a

77
few who don't, according to the [Deputy Director], they hope to

resolve this tomorrow when the Director General [of the SNP

Laboratory Director] returns.

On the same day, a t)uJ t2"l'N attorney (referred to in this report as the

CTS Attorney) sent an e-mail to DOJ and the U.S. Attorney's Office that

described the same conversation, as related to her by the Madrid Legat:

With respect to the fingerprint report, it is still incomplete. [The

Madrid Legat] met with the laboratory guys today and there is

apparently still some disagreement among the Spanish. He will

meet with them again on Monday.

The CTS Attorney stated during her OIG interview that she did not recall

what the '_disagreement" was, but told the OIG she did not interpret this

information from the Madrid Legat to mean that the SNP was about to exclude

Mayfield. However, her use of the word '_still" in the e-mail suggests that this

was not the first time the FBI or DOJ had been made aware of disagreements

within the _l_t _ baboratory.

The OIG interviewed the Madrid Legat and the SNP Deputy Director

regarding their May 7 conversation. The Madrid Legat said he had no

recollection of the conversation beyond what was stated in his May 7 e-mail.

The SNP Deputy Director said he recalled only that the Madrid Legat called him

frequently and that the SNP Deputy Director always referred him to the

Director of the SNP Laboratory for information. The SNP Deputy Director told

the OIG he did not believe that he told the Madrid Legat that there was

disagreement within the SNP about the identification.

On May 8, a Spanish newspaper (El Pais) reported that the SNP was

%ery doubtful" that Mayfield was the source of LFP 17. By May 10, media

reports regarding SNP doubts had reached Mayfield's attorneys and the U.S.

Attorney's Office. On May 12, the Madrid Legat sent an e-mail to FBI

Headquarters and the Portland Division stating:

This past weekend, there were a series of articles in the Spanish

press which quoted Spanish officials as stating... It]he SNP

Laboratory disagrees with the FBI findings and do not consider our

fingerprint identification techniques sound ....

As of yesterday afternoon [May 11], the SNP Laboratory still had

not finalized their report on the fingerprint, informing me they

would let me know whenever they finished.

78
The Madrid Legat did not comment on the accuracy of the Spanish media

reports in his e-mail. He told the OIG that he was generally skeptical of the

accuracy of reports in the Spanish newspapers. He stated that by this time,

however, he was beginning to think that the SNP Laboratory might not agree

with the FBi because it was taking them so long to complete their report.

Later on May 12, the SNP delivered a letter to the Madrid Legat

requesting additional inked fingerprints for Mayfield. The Madrid Legat

arranged for the translation of the letter and forwarded it to the CTD and the

Portland Division.

As translated, the letter stated that the available inked prints for

Mayfield "do not contain sufficient detail in all areas and in particular the

upper portion, as to compare with the prints lifted during the [March 1 1

attacks], information that is essential to proceed with the issue of a

corresponding forensic report." Accordingly, the May 12 letter requested that

the FBI obtain "[t]hree complete, original fingerprint cards, of the 10 fingers

with the largest print area possible, including the marginal upper area and

marginal area on both sides." _'ne ' ......... ' ............ -' "_'^ ....... '-- _--

Mayfield.

The SNP officials we interviewed each told the OIG that after Mayfield

was arrested, the SNP realized that there was an opportunity to obtain a better

set of inked prints from Mayfielda In addition, the former Director of the SNP

Laboratory told the OIG that at the time he delivered the May 12 letter to the

Madrid Legat, he specifically told the Madrid Legat that the SNP had reached

the conclusion that LFP 17 was not a match to Mayfield.

The Madrid Legat provided a different version of events to the OIG. He

told the OIG that he inferred from the SNP's May 12 letter that the SNP was

still considering Mayfield as the possible source of LFP 17. He said he spoke to

the SNP Laboratory Director around May 12 but that the Director did not

indicate which way the SNP Laboratory was leaning.

The FBI obtained a new set of inked fingerprints from Mayfield in

Portland late on May 13, and these prints were forwarded to the FBI

Laboratory. Green told the OIG he examined these prints to determine whether

additional details from the extreme tips of Mayfield's finger could be matched to

the upper left portion of the print to substantiate the theory of a second touch,

but he discovered that once again that area of Mayfield's finger was not

recorded. 44

44 Before the fingerprints were forwarded to Spain, the SNP identified Daoud as the

source of LFP 17 and withdrew its request for additional Mayfield prints.

79
On May 14, the CTS Attorney wrote an e-mail describing a .telephone call

from the Madrid Legat in which he said that the SNP had "probably determined

that their initial report is wrong and that they have requested an additional

copy of the prints in order to save face." During his interview with the OIG, the

Madrid Legat said he could not recall any details regarding this conversation or

the basis of his statement to the CTS Attorney.

F. The Court-Appointed Fingerprint Expert

On May 17, Judge Jones held a hearing on a motion by Mayfield's

attorneys seeking his release. Among other things, Mayfield's attorneys argued

that the primary basis on which the government sought Mayfield's detention -

the validity of the FBI's identification of LFP 17 - had come into question as a

result of press reports indicating that the SNP had doubts about the FBI's

conclusions. Judge Jones responded by stating "I have no affidavit from any

Spanish authorities as to questioning the fingerprint. The only information I

have is that after consulting with the FBI, that they agreed with the 100

percent identification." However, the judge ordered the United States to

Ul proc_uce a copy- LFP 17 to a m_gerprmL expert chosen by- the -'-_ ...... '-

U.S. Attorney's Office provided the names of three potential experts

recommended by the FBI Laboratory to Mayfield's attorneys, including Kenneth

R. Moses of Forensic Identification Services in San Francisco. Mayfield's

attorneys designated Moses as the fingerprint expert. 4s

Moses was certified as a latent print examiner by the International

Association for Identification (IAI). He served as a crime scene investigator in

the San Francisco Police Department Crime Laboratory from 1971 to 1998, and

received numerous honors and awards. The judge found him to be qualified as

an expert, and digital images of LFP 17 were delivered to him later on May 18.

On May 19; Moses testified telephonically as to the results of his

identification. He stated, "I compared the latent prints to the known prints

that were submitted on Brandon Mayfield, and i concluded that the latent print

is the left index finger of Mr. Mayfield." Moses stated that there were 16

4s On May 18, at the request of the United States and with the agreement of Mayfield's

counsel, the judge modified his order to provide that the expert would be designated as a court

expert rather than a defense expert. The government obtained this modification with the

consent of counsel for Mayfield in order to avoid the precedent of being ordered to provide

discovery to a grand jury witness to justify seeking the witness's testimony. During the hearing

on that day, AUSA 1 stated: "There have been leaks in the press indicating some question

about [the FBI's identification of Mayfield] by the Spanish government. To the extent that we

had any knowledge of that, we provided that to the Court in the material witness affidavit. As

far as I know the Spanish position hasn't changed one way or another since then."

8O
minutiae in the latent print that corresponded to the minutiae on Mayfield's

finger. He stated that the identification was "quite difficult," citing distortion

and blotting out by residue from the development process. He stated that he

would have liked to examine the original evidence, but he testified that the

digital image of the latent print that he received was sufficient to make the

identification.

G. The SNP's Identification of Daoud

On May 19, the same day that Moses testified that LFP 17 was Mayfield's

print, the FBI and the U.S. Attorney's Office learned that the SNP had identified

LFP 17 as belonging to a different person, an Algerian named Ouhnane Daoud.

The events that led the SNP to Daoud began on April 3, when Spanish law

enforcement authorities raided an apartment building in suburban Madrid in

an effort to arrest suspects in the March 11 train bombings. The suspects blew

themselves up, also killing a Spanish policeman. In the course of sifting

through evidence found at the site of the suicide blast, the SNP discovered

documents bearing Daoud's name. The SNP discovered that Daoud's

fingerprints were on me as a result of an imm ration molauon, un

approximately May 15, the SNP fingerprint examiners determined that Daoud's

right middle finger was the source of LFP 17, based on a correspondence of 14

points of identity. The SNP also determined that Daoud's right thumb was the

source of LFP 20, found on the same bag, based on a correspondence of eight

points of identity.

The SNP found that Daoud's print was consistent with the upper left

portion of LFP 17 (which did not match Mayfield and which the FBI had

explained as a separate touch). According to notes taken by the Portland SSA

at a June 9 meeting between the SNP and the FBI, the SNP officials stated that

they examined the bag and determined there was no fold in it that would

explain the appearance of a break in the print separating that portion of the

print from the rest of the print. The SNP told the FBI that they concluded that

the gap or separation between the upper left portion of the print and the center

of the print was the result of an imperfection in the development technique

rather than a second touch or a fold in the bag.

The Director of the SNP Laboratory told the OIG that before announcing

the identification, he sought independent verification from the three groups he

had convened to study the Mayfield prints and from the outside expert. All

agreed that Daoud was the source of LFP 17 and LFP 20.

On May 19, the SNP delivered a letter to the Madrid Legat advising him

that the SNP Laboratory had identified Daoud as the source of LFP 17 and LFP

20. He immediately forwarded the letter and digital copies of Daoud's prints to

an SSA in ETIU, who in turn forwarded the material to the third LPU Unit Chief

81
and Terry Green at the Laboratory. The Madrid Legat also alerted the Portland

Division, which in turn alerted the U.S. Attorney's Office.

Judge Jones called the U.S. Attorney's Office at approximately 9:15 a.m.

on May i9 to inform it that Moses had concluded that b_ 1 / matched

Mayfield's known prints and that Moses would testify about his conclusion at

10:30 a.m. that day. During that telephone call, AUSA 1 informed the judge

that the U.S. Attorney's Office had received information from Spain casting

doubt on the identification, that the U.S. Attorney's Office was trying to gather

additional information, and would address the issue with the judge at the

10:30 a.m. hearing.

On May 20, the SNP completed its detailed Expert Report explaining the

identification of Daoud as the source of LFP 17 and LFP 20. This report was

turned over to the FBI on May 26, but FBI records do not reflect when it was

received by the Laboratory.

H. The Release of Mayfield

Immediately after receiving the new information from the SNP on May 19,

the FBI Laboratory began reexamining LFP 17. Wieners told the OIG that as

soon as he saw the upper left portion of Daoud's print, his "heart sank," as he

realized that it matched LFP 17 in the area that Mayfield's prints did not. The

Laboratory requested that the Madrid Legat obtain higher resolution copies of

Daoud's prints from the SNP to use in the examination. On the same day, the

major case prints (10-print cards) obtained from Mayfield after his arrest in

Portland were delivered to the LPU. Wieners told AUSA 2 that it would take a

couple of days for the LPU to resolve the issue.

The Moses testimony took place at approximately 10:30 a.m., Pacific

Time, on May 19. Immediately after Moses testified, AUSA 1 reported to the

judge, in vague terms, that classified information from Spain had cast doubt on

the identification. Judge Jones accepted AUSA l's offer to brief him in camera

regarding the information from Spain. After hearing the information, Judge

Jones returned to open court and stated that the new information "is not of

such a caliber that would justify immediate release of the material witness."

The judge did not explain or elaborate on this conclusion.

Early on May 20, the Madrid Legat obtained higher resolution digital

copies of Daoud's known fingerprints from the SNP and e-mailed them to the

Laboratory. That same morning, Wieners called AUSA 2 to reiterate that it

would take more time to resolve the conflicting identifications. Wieners had

heard that Mayfield was scheduled to go before the grand jury and wanted to

warn the U.S. Attorney's Office about where things were going. AUSA 2

memorialized the conversation in a file memorandum. According to the

82
memorandum, Wieners told AUSA 2 that the LPU %ee[s] what the Spanish see"

and that there may be merit in the SNP comparison. AUSA 2's memorandum

quoted Wieners as stating (in reference to the discovery of a second potential

match to LFP 17} that he had '_never seen anything like this" in 25 years of

fingerprint examination. According to AuSA 2, Wieners stated that _in light of

the potential industry wide effect beyond this matter, the lab would be taking a

cautious and judicious approach to this issue realizing time is sensitive." He

indicated that the FBI Laboratory would likely be sending examiners to Spain

to discuss the matter with the SNP.

In light of this development, the U.S. Attorney's Office recommended to

DOJ that the government disclose the information to Mayfield's attorneys and

seek Mayfield's immediate release. By early afternoon on May 20, Criminal

Division Deputy Assistant Attorney General David Nahmias authorized the U.S.

Attorney's Office to move for release on strict conditions.

At a hearing that afternoon, AUSA 1 informed the judge and Mayfield

that the Spanish government had identified another individual in Spain as the

source of LFP i7. AUSA i stated that -_-_itis our position that it is still Mr.

Mayfield's print on that blue bag. But in light of this information, it is our

request that Mr. Mayfield be released pending further proceedings in this

material witness proceeding." Judge Jones granted Mayfield's release to _home

detention" but denied the government's request for electronic monitoring.

I. The FBI Laboratory's Reexamination of LFP 17

As noted above, the FBI Laboratory began a reexamination of LFP 17 on

May 19, when it received a copy of Daoud's known prints from the SNP.

Wieners, Green, and two other examiners became involved in the

reexamination. Green told the OIG that at that time, he still thought LFP 17

was Mayfield's print. Wieners told the OIG that he quickly became persuaded

that the source of the print was Daoud, but he lacked confidence in his

objectivity and did not voice his opinion. The two other examiners

hypothesized that the lower portion of the print might have been made by

Mayfield and the upper portion made by Daoud. Wieners also reported that a

fifth examiner also looked at the prints and told Wieners he thought it was

Daoud's. The fifth examiner told the OIG he did not do a complete

examination.

The Laboratory did not resolve the issue immediately after receiving

Daoud's known prints. The examiners were unwilling to identify Daoud as the

source because there were a few dissimilarities between LFP 17 and Daoud's

known prints that they were not sure could be explained, and at least one

place in LFP 17 that seemed to match Mayfield's prints better than Daoud's.

83
DOJ pushed for a resolution of the issue. The Assistant Attorney

General for the Criminal Division, Christopher Wray, discussed the matter with

Deputy FBI Director Bruce Gebhardt on May 20, and stated that answers were

needed immediately. Gebhardt called Joseph DiZinno, Assistant Director of

the l_kil Laooratory, and EID ;_ection Chief Cummings and told them to

develop a strategy in consultation with Nahmias to resolve the issue quickly.

At approximately 6 p.m. Eastern Time on May 20, DiZinno contacted an

LPU Unit Chief and instructed him to catch the next flight to Spain to gather

firsthand information and the evidence, if possible, from the SNP so that the

Laboratory could make its own determination regarding whether Daoud was

the source of LFP 17. The LPU Unit Chief took DiZinno's instructions to mean

that he should obtain a high-quality photograph of the latent print, the original

evidence (if possible), and the known prints of Daoud. The LPU Unit Chief was

selected for the trip because Wieners was unavailable to travel. An additional

Senior Fingerprint Specialist who had not previously been involved in the case

was selected to accompany the LPU Unit Chief to Spain.

On May 2 i, after DiZinno instructed the examiners to go to Spain, the

Laboratory received better digital images of Daoud's prints from the SNP.

Nevertheless, the Laboratory examiners were unable to resolve the

identification issues.

The earliest flight the LPU Unit Chief and the other examiner could catch

left Washington on May 21 and arrived in Madrid early on Saturday,

May 22. The Madrid Legat met the examiners at the airport and drove them

directly to a meeting with approximately 10 officials of the SNP Laboratory,

most of whom had also attended the April 21 meeting with Wieners. The SNP

Laboratory Director displayed the blue plastic bag on which LFP 17 was found.

He explained that the original latent fingerprints had been destroyed as a

result of processing, but that their locations were marked on the bag. The

Director explained that the SNP examiners believed that LFP 20 and LFP 17

corresponded to Daoud's thumb and middle finger and that a third,

unidentifiable latent print (LFP 19) likely corresponded with his index finger, so

that all three prints were made simultaneously. He also displayed the original

inked fingerprint cards for Daoud. The LPU Unit Chief took digital

photographs of the bag and the original fingerprint cards. The SNP Laboratory

Director also gave the third LPU Unit Chief a copy of LFP 19.

The Madrid Legat gave the third LPU Unit Chief additional materials that

the SNP Laboratory Director had provided to him the day before, including

photographs of Daoud and photographs of Daoud's 10-print cards. It is not

clear whether the SNP provided additional photographs of LFP 17 to the third

84
LPU Unit Chief at this time; if so, they apparently were not distinguishable

from the digital images previously provided to the FBI.

The representatives of the SNP were prepared to explain their

identification of Daoud at the May 22 meeting, but the LPU Unit Chief told the

OIG he declined to enter into such a discussion because he had been up all

night, did not have much background on the case, and wanted to remain

independent in his review of the materials. The Madrid Legat told the OIG that

the SNP representatives were disappointed at the unwillingness of the FBI to

discuss the identification at that time.

The LPU Unit Chief and the other examiner traveled back to Washington

on Sunday, May 23, and arrived in Quantico at about 10 p.m. The LPU Unit

Chief delivered the materials he had obtained in Spain to the LPU, including

better quality known prints for Daoud. Green, Wieners, Stephen Meagher

(another LPU Unit Chief), and a fourth examiner were waiting to examine the

new materials. Wieners told the OIG that he asked Meagher to get involved in

the reexamination of LFP 17 because Meagher had not been involved in the

loenoi1caiilon up to that _"....... -' """ ....... _-'_ "'-- -' .......... '- - ' .... _'---_ • I ,.r. _ _-- LIIII_, k:I.llU VVI_II_I-_5 I_IL IVl_d._ll_l W_I.;:5LII_ IE:k:t_L UIk:t;SEU

examiner and the most able to conduct an objective examination. The

witnesses told the OIG that the LPU Unit Chief who had traveled to Madrid

briefed Meagher and Wieners on what the SNP had told him, including the

potential for simultaneous impressions. The LPU Unit Chief and the examiner

who traveled with him to Spain did not participate further in the effort to

resolve the issue that night.

The team of FBI Laboratory examiners worked through the night. They

told the OIG that they had been directed by DiZinno or Dwight Adams (Director

of the Laboratory) to produce an answer first thing in the morning.

The four examiners had slightly different recollections of events during

the overnight examination, but all agreed that Meagher ultimately decided to

declare LFP i7 to be of :'no value." Meagher told the OIG that after examining

the materials and asking some questions, he went to his office by himself to

conduct a detailed examination, which took about an hour and a half. He told

the OIG that he concluded that because he was lacking key information

regarding the fingerprint and its processing technique, he could not offer a

reasonable explanation for the dissimilarities that he found between LFP 17

and both the Mayfield and Daoud prints. Meagher stated he needed to see the

original evidence (the plastic bag) and know more about the processing and

photographic techniques used to make the image in order to reach a proper

conclusion. He stated that he therefore concluded that without this additional

information, LFP 17 was of "no value" for identification.

85
Wieners stated that after Meagher completed his independent

examination, Meagher pointed out that they still did not have the best image

available. Wieners said Meagher noted the issue of possible simultaneous

prints and the existence of multiple lines of demarcation and separation in the

print. According to Wieners, Meagher stated that '-vasea--' on _'-m_-fact *'-L11etL-_he

could "make it work" with both Daoud and Mayfield, which should never be the

case, it was necessary to declare this print of no value. Thus, the

determination of no value was based in part on the fact that by using proper

identification techniques, it was possible to match this latent to two different

sources. However, Meagher did not mention this rationale in his interview with

the OIG.

Green told the OIG that Meagher made the determination that the print

was of no value because he saw inconsistencies with both the Daoud and

Mayfield prints. Green stressed that this was strictly Meagher's decision.

Green stated that in his view there were parts in the latent fingerprint that

seemed to match Mayfield better than Daoud. Green told the OIG that nothing

that happened during the May 23-24 overnight reexamination convinced him

that he had made a ml_La_C.

The fourth examiner told the OIG that when Meagher emerged from his

office that night, he stated that he believed Mayfield could be excluded, but

that he thought that the latent was not necessarily "of value" for identification.

He said he thought the FBI Laboratory should err on the side of caution and

not make another mistake.

Meagher and Wieners prepared a written summary of the Laboratory's

reexamination, which was circulated to the CTD and the FBI Portland Division

on the afternoon of May 24. The summary describes how the Laboratory

reached the "no value" determination:

As this controversy burgeoned, the LPU supervisory staff began

analyzing the latent print in question and many differing opinions

arose. Some were convinced the latent print belonged to

Mr. Mayfield. Others were equally convinced the latent print

belonged to [Daoud]. Obviously, since fingerprints are unique and

can only be attributed to a single source, only one position can be

correct. Still others thought the latent print was actually two

prints overlaid and that one portion belonged to Mr. Mayfield and

the other belonged to [Daoud]. Each camp, in reaching their

conclusion, noted dissimilarities between the latent print and the

respective known prints that were difficult to explain. As the four

Examiners met on Sunday night/Monday morning, the same

schisms were manifest. At that point, the focus returned to the

latent print and it was re-analyzed. The four Examiners

86
conducting this re-analysis consisted of two Unit Chiefs and two

Supervisory Fingerprint Examiners with a combined total of

ninety-three years of experience in the latent print science. The

one constant in all of their arguments was that the latent print had

muiupic scparauons, in other woros, the ia[en[ print was divided

by many lines of demarcation possibly caused by creases in the

plastic bag, multiple touches by one or more fingers or both.

Based on the lack of sufficient quality and/or quantity of ridge

detail in any one area of the latent print, a no value determination

was made.

In the morning, after the reexamination was complete, Wieners and Meagher

briefed Adams and DiZinno.

At this point, miscommunications within the FBI and DOJ about the

LPU's conclusions and the reasons for the error began to proliferate. Meagher

told the OIG that he probably left Adams and DiZinno with the impression that

there was enough information available to conclude that the latent print was

lIUt ivlct_ii_lU _, UUt iiOt _ilU tlgii to iUCIILUy uttOUU. ,v AS the baooratory s

findings were conveyed to the Director and to DOJ, however, this message

became confused. An e-mail from a senior DOJ official to the U.S. Attorney's

Office and the Criminal Division at DOJ on May 24 stated:

At the briefing this morning with the Director, we learned that the

Lab has concluded that the Spanish are correct about the printthe FBI lab has now concluded it belongs to the Algerian. They no

longer think it is a match for Mayfield. FBI management found out

this morning. FBI management does not yet have an

understanding of how this happened, except that the image they

were looking at was not as clear as the original.

Later on May 24, Assistant Attorney General Wray set up a conference call

involving Adams, U.S. Attorney Immergut, and others. According to immergut,

Adams stated that the problem was caused by the FBI's use of a thirdgeneration image. Immergut said she understood from this call that the FBI

examiners who met with the SNP in Madrid on May 22 saw a better image of

LFP 17.

46 Meagher told the OIG that he advised Adams and DiZinno that the Laboratory lacked

sufficient information about the evidence and processing techniques to provide proper and

adequate explanations for certain dissimilarities between LFP 17 and Daoud's known

fingerprint.

87
Contrary to the e-mail describing the Director's briefing, the Laboratory

had not determined at that time that Daoud was the source of the print, and

had not determined that the image they had used to identify Mayfield was not

as clear as the original. Indeed, nobody from the Laboratory had ever seen the

original print or anything other than a digital copy of a photograph taken of

LFP 17.

The OIG believes that Meagher's explanation to Adams and DiZinno

regarding the error became garbled because the Laboratory personnel involved

in the overnight reexamination were not involved in the subsequent briefings of

the Director and of the DOJ. In addition, there was a miscommunication of

what the examiners had brought back from Spain. They retrieved a better copy

of Daoud's known prints during the May 22 meeting with the SNP, not a better

version of LFP 17. 47

J. Dismissal of the Material Witness Proceeding

On May 24, after learning that the Laboratory had withdrawn its

;_1 _ __ J__JL'_"_ _ ___*_ _ "_At___1"_1_1 a .,LI_ _

I(/ClILIIICkiLIUil of lvzayli_lu at_ d_u_e source of LFP I,, Ln_ U _" ^.......... ,_ _. kJlllc_.__ tJ_

. .o. _r_t toH1_y

filed a Motion To Dismiss Material Witness Proceeding. The Motion described

the Laboratory's overnight reexamination of the print, and repeated the

explanation from the summary provided by Meagher and Wieners:

The four examiners concurred that the latent print had multiple

separations - i.e. that it was divided by many lines of demarcation

possibly caused by creases in the underlying material, multiple

touches by one or more fingers, or both. Utilizing the additional

information acquired this weekend in Spain, the FBI lab has now

determined that the latent print previously identified as a

fingerprint of MAYFIELD to be of no value for identification

purposes.

The Court dismissed the material witness proceeding and ordered the return of

materials seized from Mayfield.

On the same day, the FBI National Press Office issued a press release

which apologized to Mayfield and his family and which described the discovery

of the misidentification as follows:

Soon after the submitted fingerprint was associated with Mr.

Mayfield, Spanish authorities alerted the FBI to additional

47 The LPU Unit Chief who traveled to Madrid was unavailable to clarify this confusion

until May 26.

88
information that cast doubt on our findings. As a result, the FBI

sent two fingerprint examiners to Madrid, who compared the image

the FBI had been provided to the image the Spanish authorities

had.

Upon review it was determined that the FBI identification was

based on an image of substandard quality, which was particularly

problematic because of the remarkable number of points of

similarity between Mr. Mayfield's prints and the print details in the

images submitted to the FBI.

In Portland, SAC Jordan also held a press conference on May 24 in

which he apologized to Mayfield.

K. Aftermath

During the period from May 25 into early June, FBI and DOJ officials

sought to clarify the causes of the misidentification, to provide explanations for

Congress and others, and to address the inconsistency between the SNP's

identification of LFP 17 to Daoud and the FBI LPU's declaration that LFP 17

was of "no value." On May 25 and 26, FBI Laboratory Director Adams briefed

several congressional committees about the error. Adams described these

briefings in an e-mail to Meagher, Wieners, and others in the Laboratory that

stated "[a]ll groups seem to understand the reasons behind the identification

after I explain the quality issue, lack of complete information and access to

originals, and the remarkable similarity to Mayfield." During these briefings,

Adams indicated that the FBI examiners who met with the SNP in Madrid on

May 22 had seen a better quality image of LFP 17. 48

U.S. Attorney Immergut also raised questions about the FBI Laboratory's

change inposition, which led to a conference call on May 26 between the U.S.

Attorney's Office, the Portland Division, and the FBI Laboratory. During this

call, the Laboratory explained that the examinerS had not seen a better image

of LFP 17 in Spain. The LPU examiners also stated it was unlikely that seeing

a better quality image of LFP 17 would change the Laboratory's conclusion,

because the problem was the quality of the latent print, not the image.

According to an e-mail recounting the call, Wieners indicated that at least part

of the decision to classify LFP 17 as being of "no value" included a

consideration that it should not be possible to identify a single latent

fingerprint (LFP 17) to two different sources (Mayfield and Daoud). Both SAC

Jordan and SA Werder told the OIG that they came away from the call with the

4s Again, this inaccurate information resulted from a misunderstanding of what the

examiners who met with the SNP on May 22 had retrieved from Spain.

89
impression that at least some examiners in the Laboratory still felt on May 26

that Mayfield could not be ruled out as the source of the print- an impression

that Wieners later confirmed. Jordan, Immergut, and AUSA 1 all expressed

frustration with the Laboratory's _no value" determination in light of the fact

that the Laboratory had never seen the best available image.

On May 27, Green signed a memorandum to the Acting Section Chief in

charge of the LPU acknowledging his error in identifying Mayfield as the source

of LFP 17. He stated: _After reviewing my original analysis of Latent 17, I

determined that I was in error in concluding it was of value for comparison. I

should have made an initial decision that Latent 17 is not of value for

comparison purposes, not only because of the quality of the image, but that

there was no background information about the image to aide in my findings of

explainable dissimilarities." Green told the OIG he was instructed to prepare

this memorandum as part of the corrective action process. He said that at the

time he wrote the memorandum, he had not yet excluded Mayfield or accepted

that the print was Daoud's, so the _no value" conclusion was the only possible

result.

On May 28, the FBI Office of Legislative Affairs circulated draft talking

points intended to be used in telephone calls to the congressional committees

to correct the information that Adams had provided earlier. These draft talking

points suggested that information gathered during the Madrid trip enabled the

FBI _to exclude Mr. Mayfie!d __sthe contributor of the questioned laten_ _ _nr_nt,"

and described the _challenges" the Laboratory faced in making the original

identification. This draft elicited a strong response from U.S. Attorney

Immergut, who pointed out that the LPU still had not excluded Mayfield, but

instead declared the print of no value, and that the Laboratory had never

mentioned any challenges or uncertainties when Green told the U.S. Attorney's

Office it was a _100 percent" identification.

In response to the issues raised by Immergut, Deputy Assistant Attorney

General Nahmias scheduled a meeting at DOJ in Washington on June 2 ::to

sort through exactly what the facts are." The meeting was attended by a large

number of officials from DOJ, the U.S. Attorney's Office, the FBI Portland

Division, FBI Headquarters, and the FBI Laboratory. At the June 2 meeting,

the Laboratory acknowledged that Mayfield still could not be excluded as the

source of LFP 17 because the print was of _no value." The Laboratory also

attributed its mistake to _practitioner error" as distinguished from a failure of

the science. The Laboratory representatives stated that the latent print was

divided into small segments by many creases and lines of interference and that

there were not enough details within any one contiguous area to make an

identification.

90
During the June 2 meeting, Gary Bald, the FBI's Assistant Director of the

CTD, pointed out that the FBI Laboratory's position that the print was of _no

value" could have an adverse impact on the SNP's case, which was based on

the SNP Laboratory's positive identification of the print as Daoud's. Bald,

Assistant Attorney General Wray, and others stated that another trip to _-_-" _ IVI _tUl IU

was needed to reconcile the inconsistent positions between the FBI and the

SNP. Among other things, Wray's list of action items at the end of the meeting

included the trip to Spain, the preparation of new talking points explaining the

error, and a closer look at other cases which might be adversely affected by the

Mayfield misidentification.

An ETIU SSA was directed to work with the Madrid Legat to arrange

another meeting with the SNP in Madrid. In an e-mail circulated on June 2,

later in the same day as the meeting at DOJ, the ETIU SSA stated:

The purpose of this trip is to examine the original photographic

image of the latent print (i.e. the best evidence available) and to

discuss the SNP's findings relative to Mayfield .... The primary

concern which win be shared by everyone, is how we went _---- "" 11 ui11 a

positive identification to an inconclusive and the Spanish have

arrived at a positive identification of a different suspect. We need

to know if there is something in the Spanish comparison/

presentation which can conclusively illustrate that latent # 17, is

indeed that of their suspect [Daoud], and not of Mayfield.

On June 9, a contingent of FBI and DOJ personnel met with the SNP for

a third time to discuss LFP 17. The U.S. representatives included the Madrid

Legat, an ETIU SSA, LPU Unit Chiefs Meagher and Wieners from the FBI

Laboratory, the Portland SSA and Lead Case Agent 1 from the Portland

Division, the Portland AUSA, and the CTS Attorney. The SNP contingent

included many of the same persons who attended prior meetings, except that

the Director of the SNP Laboratory had been replaced as a result of the change

in Spanish governments.

The meeting lasted approximately three hours. According to the

participants we interviewed, the SNP representatives provided a detailed

description of how the fingerprints on the blue plastic bag were discovered,

developed, and photographed. They also explained how they reached the

_negativo" finding in the April 13 Negativo Report. In addition, the SNP

representatives described their reexamination of LFP 17 after the April 21

meeting with the FBI and the sequence of events leading to the identification of

Daoud as the source of LFP 17 and 20. They acknowledged that LFP 17 was a

_bad quality" print that was _difficult" to identify, and described how they

determined that the LFP 17, 19, and 20 might have been placed

simultaneously by someone holding the rolled-up or crumpled bag. At the

91
same time, however, the SNP acknowledged that the bag was laid out fiat

before it was processed for prints and that there was no way to determine or

reconstruct the configuration of the bag as it was found in the van.

During the June 9 meeting, the FBI wa_ given the opportunity to

examine the bag closely with a magnifier, and to see the relative positioning of

the prints from the outlines that remained on the bag. The SNP also provided

the FBI with high-quality photographs of the latent prints made from the

original silver halide negatives. This was the first time the FB1 obtained copies

of the latent prints that had not been digitized.

At the end of the meeting, Meagher and Wieners indicated that the LPU

would be reexamining LFP 17 and 20 in light of the new information made

available by the SNP.

L. The FBI's Identification of Daoud as the Source of

Latent Fingerprint 17 and Latent Fingerprint 20

/-I_ILI:;I LIIU t.JEIIIE :_ IIIEELIII_ 111 OIJalll , exalTilnero 11_ *_ i OTT _,_,,,_,,,.*_A E1 I_L_ .ILJI U _.,,_.,/llV_l. L_l.lk_. E_,._,.L

another reexamination of LFP 17 and officially concluded that the print was

made by Daoud. On June 14, Meagher began the formalreexamination of

LFP 17 and LFP 20. By June 15, he concluded that LFP 17 was made by

Daoud's right middle finger, and that LFP 20 was made by Daoud's right

thumb. Meagher charted 18 points of similarity on LFP 17 and 15 points of

similarity on LFP 20. 49 Meagher found enough matching detail in both prints

to identify each individually, without relying on the prints having been

deposited simultaneously.

On June 15, Meagher asked another examiner in the Laboratory to

perform a verification of his identifications. Meagher told the OIG that he

selected an examiner who had never seen the relevant prints before. The

examiner subsequently verified the identification of Daoud. On June 22,

Meagher requested verification as a "technical/peer review" by a um d LPU

examiner, who also verified the identification of Daoud. Meagher instructed

the two verifying examiners each to prepare charted enlargements of their

identifications. 5° The charts prepared independently by Meagher and the two

verifying examiners revealed that the three examiners all relied on many of the

same points of similarity in identifying Daoud as the source of the prints.

Meagher completed the final report of this identification on July 16.

49 Meagher's charted enlargements of the Daoud identification are provided in

Appendix C.

50 The charts are provided in Appendices D and E. We have not included copies of the

charts for LFP 20 (the thumbprint) as this print was never identified to Mayfield and hence was

not the source of the error.

92
M. Mayiield's Civil Action

On October 4, 2004, attorneys for Mayfield filed a civil action in the

United States District Court in Oregon against the FBI and DOJ. The complaint

also named Werder, Green, Massey, Wieners, and __John Does i-X," as

individual defendants. Mayfield's complaint includes claims for civil rights

violations based on the allegation that Mayfield was selected for arrest and

imprisonment based upon his Muslim religion, a Privacy Act claim relating to

the leaking of confidential information to the media regarding Mayfield, and a

claim challenging the constitutionality of the provisions of the Patriot Act and

FISA allegedly used to collect and retain information about the Mayfields. The

case remains pending.

93
[BLANK PAGE]

94
CHAPTER THREE

BACKGROUND FOR THE OFFICE OF THE INSPECTOR GENERAL'S

ANALYSIS OF FINGERPRINT ISSUES RAISED BY THE MAYFIELD CASE

in this chapter, OiG provides background information regarding the FBi

Laboratory Latent Print Units (LPU) and latent fingerprint examination

methodology. This information is relevant to the OIG's assessment of the

causes of the FBI Laboratory's misidentification of Latent Fingerprint 17

(LFP 17) and the OIG's review of the Laboratory's programmatic responses to

the error. Part I of this chapter describes the LPU. Part II provides an overview

of the latent fingerprint examination process.

I. Description of the FBI Laboratory LPU

Organization. At the time of the Mayfield fingerprint identification, latent

fingerprint examinations were conducted by three latent print units (referred to

collectively as the LPU), located within the FBI Laboratory's Forensic Analysis

Section. Each latent print unit included tw-o teams of fingerprint examiners

(each headed by a team leader) and one or more programmatic groups (each

headed by a program manager). The examiner teams were responsible for

casework while the programmatic groups were responsible for a variety of other

functions, including quality control, technology development, and other

management and administrative issues. The team leaders each supervised

three to five fingerprint examiners, and the program managers were

responsible for administering their programs and the personnel assigned to

those programs. As of September 2004, the 3 LPUs consisted of 92 employees:

78 fingerprint examiners, 8 photographers, 5 technicians, and 1 management

analyst.

Case Work. Although the LPU performs fingerprint examinations

primarily in connection with FBI investigations, it also conducts examinations

on behalf of state, local, and other federal agencies. In FBi investigations, the

LPU typically has custody of the evidence on which the fingerprint was

deposited and processes the fingerprints itself. In other investigations, the

requesting agencies sometimes send photographs of the latent prints to the

LPU for examination. LPU supervisors assign cases to individual examiners

based on various factors, including examiner caseload, case priority (more

experienced examiners may be assigned to high-priority cases), and the

examiner's prior experience with the case.

Along with the latent fingerprint, the LPU may also be provided with the

known fingerprints or the name of a suspect. If known prints for the suspect

are available to the LPU, the examiner will first compare the suspect's prints

with the latent print. If an identification occurs, the examination is concluded.

95
If no identification occurs, the examiner initiates a search for potential

candidates through the FBI's Integrated Automated Fingerprint Identification

System (IAFIS). IAFIS is an automated system that permits computer searches

of FBI databases containing over 470 million fingerprints. An IAFIS search is

also initiated if the examiner is not provided with any potential suspects. Once

the examination is completed, the examiner prepares a report of the results

which is sent to the originating agency.

Accreditation. Since 1998, the FBI Laboratory has been accredited by

the American Society of Crime Laboratory Directors/Laboratory Accreditation

Board (ASCLD/LAB). ASCLD/LAB accreditation is voluntary. As of June 12,

2005, 289 laboratories were accredited by ASCLD/LAB. Accreditation requires

a demonstration that the laboratory's management, personnel, procedures,

equipment and facilities satisfy minimum standards. ASCLD/LAB makes its

accreditation decisions based on documentation submitted by the applicant

laboratory and periodic on-site inspections.

Training and Certification. Prior to 1999, the Laboratory certified its

U.L

latent fingerprint speclail_L_ ua_cu upu_l _u_l_uw, y _ump,_ uu,, L,l_ Ll_',',,'a

program, which included competency testing throughout the training period,

moot court testimony, and casework review. All individuals hired into the

position of fingerprint specialist up to 1999 were required to have at least five

years of prior experience in fingerprint classification and searching fingerprint

files. Upon successful completion of their training within the Laboratory, they

were certified by the Laboratory as latent fingerprint specialists. Green,

Wieners and Massey followed this career path.

Beginning in 1999, the pre-requisite of five years of experience was

removed and a new formal certification process was adopted. Prospective LPU

examiners (now called "Physical Scientists") now undergo a 24-month training

program within the LPU. LPU certification requires passing a 3-day test that

includes a written examination and fingerprint comparisons. Examiners who

had previously been ceruneo uno_r the pre- 1999 procedures ar_ g_m_u,_m_, _u

into certification.

In 1977, the International Association for Identification (IAI), the leading

professional organization of forensic identification specialists in the United

States, initiated a testing and certification program for latent fingerprint

examiners. The IAI Program is voluntary; it is not a prerequisite to performing

latent fingerprint examinations or testifying as an expert in most courts.

Wieners was certified by the IAI after taking the IAI test. Massey was

grandfathered into IAI certification. Green never sought certification by the IAI.

96
Periodic Proficiency Testing. ASCLD/LAB requires accredited

laboratories to implement annual proficiency testing. The LPU has conducted

annual proficiency testing of all of its latent fingerprint examiners, including

supervisors and unit chiefs, since 1995. Initially, the LPU developed its own

proficiency tests, but since 2002 the LPU has ....us_uJ tests plUvlU_U'J-_by

Collaborative Testing Services, the only supplier of latent fingerprint proficiency

tests approved by ASCLD/LAB. To pass the proficiency test, LPU examiners

are required to obtain a perfect score. A corrective action plan is implemented

for any examiner who fails the test.

II. Overview of the Latent Fingerprint Examination Process in the FBI

Laboratory LPU

This section describes basic principles and procedures of latent

fingerprint examination as practiced by the FBI Laboratory LPU. It is not

intended to provide an exhaustive or definitive treatment of latent fingerprint

examination techniques, but rather to provide background for understanding

the _"'_ ' .... "..... _ _,_ __ _,__ _-_ -., -_ __ IUEIILIIILCI ,-.LrIU-^II ..,;__ el _ ul 111 L_lll,._ Ulk/ S TCVICW Illtile cau_c_ Ul LIIE llllg_llJillIt i

Mayfield case.

A. Policies and Procedures Governing the LPU

The FBI Laboratory has adopted several Standard Operating Procedures

(SOPs) to govern the LPU, including Standard Operating Procedures for

Examining Friction Ridge Impressions (the Examination SOPs). The

Examination SOPs cite two brief references prepared by The Scientific Working

Group for Friction Ridge Analysis, Study, and Technology (SWGFAST) for

further detail regarding the examination process: The SWGFAST Friction Ridge

Examination Methodology for Latent Print Examiners, (the SWGFAST

Methodology) and the SWGFAST Standards for Conclusions (SWGFAST

Standards). 51 The versions of the Examination SOPs, the SWGFAST

Methodology, and the SWGFAST Standards that were in effect at the time of

the Laboratory's identification of LFP 17 are provided in Appendices F, G, and

H. In general, the examination processes described in the following sections

are those set forth in these three documents.

In addition, the Examination SOPs cite David R. Ashbaugh's text,

"Quantitative-Qualitative Friction Ridge Analysis" (hereinafter "Ashbaugh"), as

51 SWGFAST is an organization sponsored by the FBI Laboratory comprising latent

fingerprint examiners from many laboratories. Since 1995, SWGFAST has established

guidelines for latent fingerprint examination.

97
a reference for FBI latent fingerprint examiners. 52 Accordingly, Ashbaugh is

cited and quoted extensively in the following description of the latent

fingerprint examination process. Other references are cited to explain

additional aspects of the latent print examination discipline of relevance to the

iviayiieiu matter. Areas of disagreement--"_-'-wit, u_ the u,_,p=l_A;"_;_'l;'_- =_luu,_,a;-_l-'A;-_-

disagreements that some examiners have raised with the approach set forth in

Ashbaugh- are also described below.

B. Friction Ridges and the Premises of Fingerprint Identification

A fingerprint is a reproduction of the pattern of friction ridge formations

of the surface of a finger, made as the result of the transfer of oil or other

matter during contact between the finger and an object. Friction ridges are the

ridges on the skin of the fingers, palms, and feet, which produce increased

friction for gripping. Friction ridges form prior to birth in patterns that are

attributed to a combination of genetic and environmental causes. 53

Friction ridge patterns and fingerprints are frequently described in terms

familiar patterns such as loops, whorls, and arches. Figure 3 depicts common

Level 1 patterns. 54

Level 2 detail refers to the details that occur on individual ridge paths,

including the turns that each ridge takes, the size and shape of each ridge, and

the places where ridges terminate or split, also known as ridge path deviations.

Ridge path deviations include features such as ending ridges (where a single

ridge comes to an end); bifurcations (where a single ridge splits to form two

adjacent, roughly parallel ridges); and dots (extremely short ridges). An

"enclosure" is formed where a ridge bifurcates into two ridges that rejoin at a

second bifurcation to form a single ridge again. A human fingerprint may

contain 75-175 ridge path deviations. Common Level 2 details are shown in

Figure 4. As a major ridge path deviation develops in the friction skin, other

ridge formations develop around it. For example, when a ridge ends, the

adjacent ridges will tend to converge, as illustrated in Figure 4. Ridge path

deviations, sometimes called "points" or "minutiae," have long been a major

focus of latent print examination, but the evaluation of Level 2 details also

considers ridge paths and the absence of deviations (continuous ridges). Some

s2 David R. Ashbaugh, Quantitative-Qualitative Friction Ridge Analysis, An Introduction

to Basic and Advanced Ridgeology (CRC Press 1999).

53 See generally Ashbaugh, Ch. 3.

54 The images contained in Figures 3-5 were obtained from http://finKerprints.tk/, and

are reproduced with permission.

98
examiners identify Level 2 details by making tracings of individual ridge paths

on an enlargement of the fingerprint.

Level 3 detail refers to extremely tiny features of the friction ridges, such

as the shape of ridge edges, the width of i-lug,s,--"J-- and _'-ulcA_ii_ipc-_-_tiiuJ _A,_,:i_i_ttvelocation of pores along the ridges. Each ridge is made up of "ridge units."

Each ridge unit includes one sweat gland and one pore opening. According to

Ashbaugh, Level 3 features are created by differential growth or random

damage (such as from scarring) at the ridge unit level. 55 Common Level 3

details are shown in Figure 5.

One premise of fingerprint identification is that friction ridge formations

persist throughout life except for (1) changes associated with growth,

(2) temporary damage to the skin surface, and (3) permanent damage due to

scarring of the underlying tissues. A second premise is that friction ridges and

their formations are unique to each individual, even within a very small area of

the friction skin. These premises are commonly referred to as "permanence"

and "uniqueness." Some critics of latent fingerprint identification claim that

these premi_c_ 1_iibtV_ ii_v_i 1u-._li _Ji_litliiu_iiy -" 4-'.c:_11.. l_l u ven,56 ..wllii_ l .1_;lo 1,-, aL_li_ llliS_i +_.-,+ 1_;...... ;,_ pl _it-,+

examiners respond that the premises are firmly grounded in more than a

century of experience as well as in principles of genetics, fetal development,

and cellular biology. 57

C. Latent Fingerprints

The term "latent fingerprint" is commonly used to describe an accidental

fingerprint left at a crime scene. Forensic laboratories use a variety of physical

and chemical processing techniques to enhance the visibility of latent prints

and to photograph them for comparison purposes.

Latent fingerprints are typically assessed in terms of both the quantity

and quality of friction detail that is reproduced. Quantity refers generally to

the amount of detail available and is _c_.... _ auc_Lcu by many factoi_, • , _. inc_uuing the

size of the latent prints. In many latent prints, only a small fraction of the

friction ridge detail on a complete finger is reproduced. 58 Quality is used

ss Ashbaugh, p. 143.

$6 E.g., Robert Epstein, "Fingerprints Meet Daubert: The Myth of Fingerprint 'Science'

Is Revealed," Southern Cal. L. Rev. Vol. 75, 2002, pp. 612 and 625; David A. Stoney, "Scientific

Status, Fingerprint Identification," Modern Scientific Evidence: The Law and Science of Expert

Testimony, 2002, § 27-2.1.216].

57 E.g., Ashbaugh, pp. 61-85.

5s United States v. Mitchell, 365 F.3d 215,221, 225 n. 5 (3d Cir. 2004) (testimony

suggested that the typical latent print is perhaps 1/5 the size of a full fingerprint)

99
FIGURE 3

Common Level 1 Patterns

Co.right: _;_p:l!_.:_ FINGERPRJNTS._ _

Images obtained from http://www.fin_erprints.tk/. Reproduced with permission.

100
BIFURCATION 

FIGURE 4 

Common Level 2 Details 

ENDING RIDGE 

(iizlte zoiiverger;ce zlf adjacent ridges) 

ENCLOSURE 

DOT 

Images obtained from http: / /www.finaerprints. tk/ . Reproduced with permission. 
FIGURE 5

Common Level 3 Details

PORES

RIDGE EDGE SHAPES

INCIPIENT RIDGES

SCARS

Images obtained from http://www.fin_erprints.tk/. Reproduced with permission.

102
interchangeably with "clarity" and is defined as how well the details from threedimensional ridges are reproduced in a two-dimensional fingerprint. 59

Numerous factors may affect the transfer of detail from the friction ridges

of a nnger to an _mprcsston on an o[Jject, potenuauy ODSCurmg some of the

differences between one finger and another. Unlike friction ridges, fingerprints

are usually two-dimensional. Inevitably, some unique detail is lost when a

three-dimensional friction ridge pattern is reproduced as a two-dimensional

print.

One factor affecting the clarity of a latent fingerprint is the surface or

"substrate" upon which a latent fingerprint is deposited. Different substrates

affect the amount of detail from the friction ridges that is transferred to the

print, and may introduce distortions to the print. 6° For example, a flexible

substrate (such as a plastic bag like the one on which LFP 17 was found) can

cause distortion as a result of the pliability of the material or the existence of

folds or wrinkles. "Double taps," where a single print is deposited in two

distinct applications of pressure, are a common type of distortion with flexible

;_ L.i. U_ LI Ct.L_ ;_. _ -

Distortion can also be introduced by the substance that is actually

deposited by the finger to form the impression of the friction ridge details (the

"matrix"), such as sweat, sebaceous oils, blood, or mud. Matrices differ in

viscosity, adherence, and other attributes that affect how clearly and

accurately friction ridge features are recorded in latent prints. 62

"Deposition pressure" refers to downward pressure during the deposition

of a print. Among other things, it will affect the apparent width of the ridges

and furrows, and can significantly affect the appearance of ridge edge shapes.

"Lateral pressure" refers to a sideways or lateral force that may result in sliding

of the friction ridges resulting in smearing in the fingerprint or a double tap. 63

Both types of pressure can distort the appearance of a latent print.

There are many different development media used to enhance the

visibility of latent fingerprints, such as fingerprint powder and various

chemicals. The development medium utilized in a particular case will depend

59 SWGFAST Methodology § 3.1.1.; SWGFAST Glossary (definitions of "clarity" and

"qualitative"); Ashbaugh, p. 93.

60 Ashbaugh, pp. 114-118.

61 Ashbaugh, p. 114.

62 Ashbaugh, pp. 118-120.

63 Ashbaugh, pp. 123-129.

103
on the substrate and other factors. Each development medium can affect the

appearance of a latent print and the accuracy with which details are

reproduced. _4 Some development media will tend to fill in gaps in the

fingerprint, obscuring Level 3 details and even causing ending ridges to appear

as uuurc_uun_. UL[Z_[ media may cause apparent bz c_L1_ in _ continuous __

ridge. Once developed, latent prints are often photographed for purposes of

dissemination and comparison; photographic processes and digital imaging can

also affect the appearance of a latent print.

Each of the foregoing factors may affect the clarity of a latent print.

Because of these factors, latent fingerprints are not perfect reproductions of the

friction skin, even over a small area. The premise that friction skin is unique

in a very small area only applies to a fingerprint to the extent that clarity is

present in the print. 65 The problem for the latent print examiner is to

determine whether there is sufficient reliable detail in a latent print to

determine that it was made by a particular finger, to the exclusion of all others.

D. Known or Exemplar Prints

The identification of a latent fingerprint is established through the

agreement of friction ridge formations between the latent print and the known

print of a particular candidate. "Known" or "exemplar" fingerprints are friction

ridge impressions known to be those of a particular person, taken under

controlled circumstances, such as during an arrest. Historically, exemplar

prints have been made with ink, although in recent years the use of electronic

fingerprint capture devices has become more commonplace. In a "rolled print,"

the image is made by rolling the surface of the finger from nail edge to nail edge

in an effort to capture as much detail as possible. A "fiat impression" or "plain

impression" is made by pressing the fingers onto the card simultaneously,

without rolling. In many cases when a subject is fingerprinted, a record is

made of both individual rolled prints for all 10 fingers plus fiat prints, and

sometimes palm prints.

Because known prints are taken under controlled conditions, the

quantity and quality of detail captured in known prints is typically (but not

always) greater than is available in the latent print of interest. Factors such as

over-inking may adversely affect the quality of known prints, however.

64 Ashbaugh, pp. 120-122.

65 Ashbaugh, p. 93.

104
E. The ACE-V Process for Latent Print Identification

The FBI Laboratory and many other crime laboratories utilize the "ACEV" method for examining latent fingerprints. ACE-V is an acronym for the four

steps of the method: Analysis, Comparison, Evaluation, and Verification. The

Examination SOPs in effect in the FBI Laboratory at the time of the

identification of LFP 17 did not describe the ACE-V process in detail. They

referenced the SWGFAST Methodology, the SWGFAST Standards, and

Ashbaugh, and stated that the methodology "includes both qualitative and

quantitative analysis." The individual steps of the ACE-V process are described

below.

I. Analysis

The SWGFAST Methodology defines "Analysis" as "the assessment of a

friction ridge impression to determine suitability for comparison," and lists

various factors to be considered in the analysis stage, including the quality

(clarity) of detail at all three levels and the various factors described above that

_ .IF'J_ J- _-1 ................... --1 .__1_"--1__'1_'L- 1 _J _ ".1 _.

....... lll_l.y _I.IICCL LIIC dppck;I.l-_l.llL;C allU f_naVlllLy of .... a_ cans reproGucea a in latent print

(e.g., substrate, matrix, deposition, development method).

Another function of the analysis stage is to establish the friction ridge

details that can be seen in the latent print and hence are available to utilize in

the comparison phase. The examiner considers all three levels of detail in this

phase. According to LPU Unit Chief Meagher, the analysis should be

performed on the latent print before consideration of any available known

prints, in order to "limit or try to restrict any bias in terms of what appears in

the known exemplar. "66 In other words, analysis of the latent is performed

prior to the examination of the relevant exemplar, in order to avoid having the

66 Testimony of Stephen Meagher in United States v. Llera-Plaza, No. 98-CR-00362-10

(E.D. Pa.), February 25, 2002, p. 40. An internal LPU document titled "Questions Following a

Review of the International Expert Panel Review," dated 7/21/05, revised as of 8/16/05, states

at page 9 that "[c]omparisons proceed only after full analysis is complete." Another

experienced examiner expressed the point as follows:

The reason for working from the unknown image to the known has its

foundation in human psychology. When dealing with a less clear image, usually

the latent or unknown print, the brain is subjectto influence by "mind-set." If a

feature is first observed in a clear image, the brain may form an expectation and

be tricked into seeing the same feature in an unclear image even though it does

not actually exist there .... To avoid this possibility, a cautious examiner

always finds the features in the unknown print first, free from mind-set, then

locates and evaluates the corresponding features in the known print.

Pat A. Wertheim, "Scientific Comparison and Identification of Fingerprint Evidence," The Print,

Vol. 16, No. 2, September-October 2000, p. 18.

105
known print suggest features in the latent print to the examiner. Ashbaugh

describes the problem this way:

During forensic comparison one must maintain an objective state

of ---'-- j mmu to guard against seeing things that are not there _or . "_

example, during the comparison process, examining the clear

inked known impression prior to carrying out an analysis of an

unknown print could cause the brain to jump to a conclusion and

see details in the murky unknown ridge structures that may not

actually be there. 67

Several examiners we interviewed inside and outside of the FBI described

analysis as an iterative process in which the examiner's initial interpretation of

a latent fingerprint may be adjusted during the comparison phase as it is

informed by features seen in the known print. John Vanderkolk, a SWGFAST

member and experienced examiner with the Indiana State Police who served as

an OIG consultant in the Mayfieid matter, described this as a "recurring,

reversible and blending" application of the analysis, comparison, and

'EVE_LIUCI.LIUII IJlIE:I._E;_) UII tilE3 A%.,,J_- V IIIUUI31_ i::tllU UI;SLIII_:)LII;511E:;U IL IIU111 k:t lllI(3kil"

process of proceeding from analysis to comparison to evaluation. 6s

During the analysis phase, the examiner brings to bear his

understanding of how friction ridges form and how they tend to appear in

latent prints. For example, the examiner must attempt to distinguish between

an incompletely reproduced ridge (a gap in the reproduction of a continuous

ridge resulting from the circumstances under which the latent print was

deposited) and an ending ridge (a Level 2 detail in the friction skin where a

ridge terminates). In the case of an ending ridge, the adjacent ridges on either

side will tend to fill in any void left by the ending ridge and this directional

change will be visible on the ridge path of those adjacent ridges. An example of

this convergence of ridges is shown in Figure 4. Analysis of this type enables

the examiner to distinguish those features on a latent print that reflect true

events in _-- friction skin _---- uum those features that result from the imperfect tl 1 E;

conditions under which latent prints are often made or developed.

Another function of the analysis step is to evaluate the factors that might

cause distortion of the friction ridge impression. These factors may be

apparent from the appearance of the print (such as indications in the

appearance of a latent print that a "double tap" occurred), or evidence external

to the image (such as information about how the substrate might distort the

67 Ashbaugh, p. 105 (emphasis added).

6s See also John R. Vanderkolk, At "--E+; V: A Model," Journal of Forensic Identij%ation,

Vol. 54, No. 1, 2004, pp. 45-52.

106
appearance of the print). Understanding such factors is critical to determining

whether dissimilarities between a latent print and an exemplar are

"explainable" or whether they compel a conclusion that the subject did not

make the print. (See discussion in Section II.E.3.b below regarding the

treatment of J'--' cu_bl_nua --" -'_'- rtu_S during the " .... '- "'- " evaluauon phase of ACE-V.)

Ashbaugh recommends that the results of the analysis stage be

committed to writing in certain cases:

When the print is complex, involving more than two distortion

issues, a written report should be prepared by the expert carrying

out the analysis, describing the details of the distortions

observed .... In very serious cases a complete written analysis

should always be completed ....

Preparing a written analysis prior to comparison promotes

objectivity and demonstrates professionalism. It also removes the

opportunity for anyone to suggest that one is seeing friction ridge

.-1_4-_:1 .... 1.,^_ :_4- r_lTll.._ a-l.. : a- 1...

lilt Ugtiatllb VVIIEI I:7 IIUIIE: K;;2kl_t .... [VVJlIEII tile pl

distortions which may require explanation at a later date . .., then

a written analysis should be used. 6g

However, FBI policies in place at the time of the Mayfield identification did not

require the examiner to create a written record of the analysis in any category

of case.

2. Comparison

The SWGFAST Methodology defines the "Comparison" phase of ACE-V as

"the direct side-by-side observation of friction ridge detail [in the latent and

known prints] to determine whether the detail in two impressions is in

agreement based on similarity, sequence, and spatial relationship." Ashbaugh

describes comparison as a process of making comparative measurements,

which are commonly performed visually by the examiner but sometimes are

conducted physically. 70

The comparison of the latent print with the exemplar may be conducted

under a magnifier utilizing a one-to-one scale (life-sized) photograph of the

latent, which permits direct comparison with the original inked fingerprint

card. Alternatively, the examiner may utilize photographic enlargements or

scanned images on a computer screen. This is a matter of preference for the

69 Ashbaugh, pp. 112-1 13.

70 Ashbaugh, p. 136.

107
examiner; no FBI standards or protocols dictate that a comparison be

conducted at a particular scale.

The examiner often uses Level 1 detail to place the latent and exemplar

prints in the same orientation in order to _- "'_-_-II:iCilIL_L__t comparison. _"_ ........ L/ilI_I_II(_;_ S

in ridge flow, such as a "whorl" pattern in the latent versus an arch pattern in

the exemplar, may enable the examiner to exclude the exemplar even without a

comparison of Level 2 or Level 3 detail.

Assuming the exemplar is deemed sufficiently similar to merit a more

rigorous side-by-side comparison, the examiner compares the prints on a

ridge-by-ridge basis, looking for similarity and dissimilarity at all three levels of

detail. Major ridge path deviations (Level 2 details) are a primary focus during

the comparison, although if clarity is excellent Level 3 details may also be

compared. 71

Matching Level 2 ridge deviations in the latent and known prints are

sometimes referred to as "points of similarity," and are often used in

_llli::ilgElllEllt_2i LU tll3111Ull_tl i:::ttEIEIE;IILIIIIJtlLIUII_, UEIL tilE; tel III btlll U_ llll_:_IE_tltllll_

because the comparison process involves more than the mere tallying of such

features. Each such ridge deviation is compared with respect to its

relationship to other features (measured by distance, direction, and the

number of intervening ridges), its location within the print, its type

(e.g., bifurcation versus ending ridge), and its orientation (e.g., which way an

ending ridge points). Moreover, the comparison is not limited to the

consideration of ridge deviations; what happens along the ridges between the

deviations is also important identifying information. 72

Level 3 details are sometimes used to support identifications, but the

reliability of these very small details in latent prints is the subject of continuing

debate within the fingerprint community. For example, John D. "Dusty" Clark,

a SWGFAST member and former California Department of Justice examiner

(currently with the Western Identification Network) who served as an OIG

consultant in this matter, has written:

There is such a degree of variation of appearance in the 3rd level

detail due to pressure, distortion, over or under processing, foreign

or excessive residue on the fingers, surface debris and surface

irregularity, to name a few. The repeatability of the finite detail

that is utilized in the comparison process has never been subjected

71 Ashbaugh, p. 93.

72 Ashbaugh, p. 14 1 ("It is just as important to establish where the path goes as where

it starts, stops, or bifurcates.").

108
to a definitive study to demonstrate that what is visible is actually

a true 3rd level detail or an anomaly. 7a

An additional factor complicating comparison of Level 3 detail is the fact

that each ridge unit contains a pore, so that pores occui lcpc_tLCtliy _uzu

frequently along every ridge in the friction skin. Accordingly, finding a pore at

a particular location in a latent print has limited identifying power, compared

to a Level 2 ridge deviation. Ashbaugh emphasizes the need to consider

relative pore location by triangulation across adjacent ridges, but cautions that

this practice "is not advised over more than one ridge. "74 Unlike pores, Level 2

ridge deviations do not repeat in regular intervals across all ridges.

3. Evaluation

Section 3.3 of the SWGFAST Methodology defines the "Evaluation" phase

of the ACE-V process as "the formulation of a conclusion based upon analysis

and comparison of friction ridge impressions." There are three possible

conclusions that an FBI examiner may reach under the Examination SOPs and

LilC OVVUf'/-_OI IVICLIIUUUIU_vY. /IILIIVILILIi:_II/Ji=tLIUII _ILICIILIlIL, E1.LIUII}, E,_'N.L, JLLIOI.UII, OLJLI.LI

inconclusive.

a. Individualization (identification)

Individualization is a determination that two friction ridge impressions

(e.g., the latent print and the exemplars) "originated from the same source, to

the exclusion of all others." The SWGFAST Methodology states that the

individualization is the result when the compared impressions contain

"sufficient quality (clarity) and quantity of friction ridge detail in agreement."

The SWGFAST Standards for Conclusions state: "The standard for

individualization is agreement of sufficient friction ridge details in sequence."

SWGFAST provides no elaboration regarding how much "agreement" is

"sufficient" beyond stating that the determination must be based on both the

"quantity" and "qualiFy" of friction ridge details. Indeed, the SWGFAST

Standards state that "[t]here is no scientific basis for requiring that a

predetermined number of corresponding friction ridge details be present in two

impressions to effectuate individualization." Accordingly, the FBI's

Examination SOPs state that "no minimum number of friction ridge detail is

[sic] required to establish an identification."

73 Dusty Clark, "What is the Point," http://www.latent-prints.com/id criteria idc.htm,

December 15, 1999.

74 Ashbaugh, p. 155, Fig. 5.2.

109
Despite rejecting a minimum point standard for declaring an

identification, the FBI Laboratory SOPs in place at the time of the Mayfield

identification required that "when less than 12 points of level two detail are

utilized in making an identification, it must receive supervisor approval before

being reported as an :oen:nicanon. This requirement was imposed in auu:uo_,

to the verification requirement applicable to all identifications, as described in

Section II.E.4 below. The Laboratory has since discarded this requirement.

As noted above, the Examination SOPs and the SWGFAST Standards

require that an identification determination be based on both qualitative and

quantitative considerations. The SWGFAST Glossary defines "quantitative" in

the context of the identification conclusion as "the amount of information

contained in a friction ridge impression." In practice, this means that although

no minimum number of features in agreement is required to establish

individualization, the more features in agreement, the easier it is for the

examiner to exceed his threshold of doubt and reach the conclusion of

identification, vs

I ne O VV Urt_O I UIUl2i_i_tl,y (,.ICIIIIC_ t,IEIi_I.IILi_I.LIVC i_l.;_ LIIE; tJli_l.l ILy UI

information contained within a friction ridge impression." The clarity of a

latent print will dictate whether extremely small Level 3 details can be used to

support an identification. The clarity of the print will also affect the ability of

the examiner to distinguish between different types of Level 2 details, such as

bifurcations and ending ridges.

According to the SWGFAST Methodology, an individualization cannot be

determined solely on the basis of agreement in Level 1 detail, for the simple

reason that many people share similar overall ridge patterns such as whorls,

arches, and loops. An individualization may be based on sufficient agreement

of Level 2 details such as ending ridges and bifurcations and the individual

ridge paths between these ridge events. The SWGFAST Methodology states

that Level 3 detail is used "in conjunction with" Level 1 and Level 2 detail to

individualize, but the Methodology permits an examiner to identify on the basis

of agreement of Level 1 and Level 2 detail without reference to Level 3.

In practice, it appears to be an unusual event to encounter a latent print

lacking sufficient ridge deviations or other Level 2 details to support an

identification but having clear Level 3 details that are in agreement with an

7s See, e.g., John R. Vanderkolk, "Levels of Quality and Quantity in Detail," Journal of

Forensic Mentification, Vol. 51 No. 5, 2001, pp. 461-468 (describing the process of achieving

"sufficiency" as the examiner finds increasing quantity or quality of detail in agreement,

crossing a threshold or "gray area" of doubt).

110
exemplar. 76 As previously noted, there is dispute within the discipline as to the

reliability with which Level 3 friction ridge details are reproduced in latent

fingerprints. Ashbaugh clearly advocates utilizing Level 3 detail to make

identifications, but cautions that: "Identifications based mostly on the

.'._...1.'__.'.,.I.._I" • "_I.-._ _-£ ._-1-.'_.-.1 1.... I .,I_I_ ".-.1_...,I _ _.-,1 ...... .-.I

lllUlVlULli::tll_lllg VElgllt_ UI tllllU IE;VEI UE;ti::tll_ i:::UE bUIIblLIEIEU i::tll i::tUVi:/llbEU

identification technique. Novices should seek the advice of an experienced

identification specialist when this type of print is encountered. ''77

Neither the Examination SOPs nor the SWGFAST Standards provide any

further criteria or thresholds for declaring an identification. As described in

more detail below in Section II.F., there is a vigorous debate within the

discipline regarding the need for objective minimum criteria for declaring an

identification.

FBI Laboratory fingerprint examiners 0nly express a conclusion of

individualization in terms of absolute certainty, with a zero likelihood that the

latent fingerprint was made by a different person. 78 This approach is

consistent with the SWGFAST Methodology, which states: "Probable, possible

UI ll£'_lz;ly IIIUIVIULICIlIIJCI.LIUII _lk.lk.,llLlllk.,O_l.lUllJ I_,UIIL, IL.IL_Z)IUIIC:) OLlk., UL._LC)IIJLI.., I.llk., (i_.k.,_,._l..,IJtClUlk_

limits of the friction ridge identification science." This certainty, based on

finding sufficiency of detail in agreement, is achieved in the course of an

examination as the examiner evaluates the quality and the quantity of

information available in the images. 79 However, the claim of absolute certainty

has been questioned by some academics and defense counsel, s°

76 John Thornton, "Setting Standards In The Comparison and Identification,"

(transcript of speech), http://www.latent-prints.com/Thornton.htm, May 9, 2000, ("If I have a

print that is clear enough to show reliable level three detail, it invariably has an abundance [of]

level two detail as well."). An example of an identification based solely or primarily on the

agreement of Level 3 details such as incipient (incompletely formed) ridges and ridge edge

shapes is described in Robert D. Reneau, "Unusual Latent Print Examinations," Journal of

Forensic Identification, Vol. 53, No. 5, 2003, pp. 531-534 (2003). An example of an

identification that relies heavily on Level 3 detail appears in Ashbaugh, p. 159.

77 Ashbaugh, p. 143.

78 See, e.g., David L. Grieve, "Possession of Truth," Journal of Forensic Identification,

Vol. 46 (1996), pp. 521, 527-528. See also CBS News Transcripts, 60 Minutes, January 5,

2003, which includes the following exchange between Leslie Stahl and LPU Unit Chief Meagher:

STAHL: Does an FBI agent or any fingerprint expert ever go into court and say, "I

believe it's a match with 80 percent certainty" or 90 percent certainty?

Mr. MEAGHER: No. We go in with a- a 100-percent certainty that we have an

identification.

79 See, e.g., Vanderkolk, Levels of Quality and Quantity, pp. 463-465.

80 See, e.g., Simon A. Cole, "Grandfathering Evidence: Fingerprint Rulings from

Jennings to Llera Plaza and Back Again," American Criminal Law Review, Vol. 41, 2004,

pp. 1196-1202; Epstein, pp. 611-612; Stoney, §§ 27-2.1.217] and 27-2.3.1[1].

iii
b. Exclusion

The second permissible conclusion under the Examination SOPs is

"exclusion," which is defined in the SWGFAST Methodology as a determination

that "..... _ LWO --:-_"..... "J-- :.......... : ....... "-:--- ea' um_ren-"_.............L " _' iriuuon riug_ iinpr_ions origmat from sources, i ne

SWGFAST Standards define the standard for exclusion as "disagreement of

friction ridge details." Unlike an individualization, an exclusion may be

declared in some circumstances merely on the basis of Level 1 detail, such as

when the exemplar is clearly a whorl pattern and the latent is clearly an arch

pattern.

The SWGFAST Standards state that "It]he presence of one discrepancy is

sufficient to exclude." This is known as the "one discrepancy rule." As a

logical counterpart, the standards also require the absence of any

"discrepancy" as a condition of individualization. The SWGFAST Glossary

defines a "discrepancy" as a "difference in two friction ridge impressions due to

different sources of impressions." The SWGFAST Standards state that:

"Distortion is not discrepancy and is not a basis for exclusion." "Distortion" is

_^c UIZ;IIII:E;_^_ -_ _t._ o,, LI 111 tllI2; OVVk,,.IP_.^ o,- /-$OI ,gl_, U_i;tloy i=L_ Vi= "..... " tlli_tlltJ_i5 ill _1tn_.......... _p_vuucuvn v_ friction _1____- .... r

skin caused by pressure, movement, force, contact surface, etc." Under these

definitions, events such as smears, double taps, and incomplete impressions

may cause differences in appearance that are considered "distortions." Under

the SWGFAST Standards, a "distortion" need not preclude an identification

that is otherwise supported by sufficient detail in agreement elsewhere in the

print.

Thus, one critical task for the examiner in the evaluation stage is to

determine whether any differences in appearance between the prints are

"discrepancies" (requiring exclusion) or "distortions" (which may permit

individualization). According to several LPU examiners interviewed by the OIG,

the "one discrepancy rule" means that if there is a difference in appearance

between a latent print and an exemplar, an identification cannot be declared

unless the examiner has an explanation for the difference, s:

The nature of the explanation required is an extremely case-specific

analysis and there are no criteria stated in the Examination SOPs or the

SWGFAST Methodology or Standards for adopting an explanation. Among

sl Latent fingerprint examiners are not consistent in their use of this terminology for

differences in appearance. Some LPU examiners use the term dissimilarity to refer w an

explainable difference and the term "discrepancy" to refer to an unexplained difference that

precludes identification. However, the SWGFAST Glossary defines both "dissimilarity" and

"discrepancy" the same way, as "a difference in two friction ridge impressions due to different

sources of the impressions (exclusion)."

112
other things, explanations will depend on the level of detail at which the

difference occurs. As noted above, Level 3 details, such as pores and ridge

edge shapes, are extremely small and are understood to vary in appearance

from one impression to another as the result of differences in pressure, matrix,

• A " ' ' d " or substrate _ccoramgly, aepen lngon the clarity of tne prints, examiners are

generally tolerant of differences in appearance in Level 3 details and are more

willing to explicitly or implicitly explain them as being the result of distortions.

Indeed, some examiners told the OIG that they would not declare an exclusion

based on Level 3 detail, and Unit Chief Meagher has testified that "you have to

be very carefully [sic] with Level 3 in exclusion," because factors like processing

technique and substrate can distort Level 3 details, s2 By contrast, a difference

in appearance at Level 2 - such as a bifurcation occurring in a latent print

when the corresponding location in the exemplar appears as a single

continuous ridge- may be much more difficult to explain as the product of

mere distortion, and therefore may be more likely to require a conclusion of

exclusion•

c. Inconclusive

The third permissible conclusion in latent print examination under the

SWGFAST Standards is "inconclusive," defined as a determination that the

latent examiner is "unable to individualize or exclude the source of an

impression." The SWGFAST Methodology cautions, however, that

"[i]nconclusive results must not be construed as statements of probabi!i_.

Probable, possible or likely individualization (identification) conclusions are

outside the acceptable limits of the friction ridge identification science." This

rejection of probabilistic identifications is consistent with the philosophy of

absolute:certainty in identification decisions desct_ibed above.

There is an important but subtle relationship between the "inconclusive"

conclusion and the purpose of the analysis phase as adopted by SWGFAST. As

noted above, the SWGFAST Methodology states that the purpose of the analysis

phase is to "deterfnine suitabiliFy [of the relevant fingerprints] for comparison."

According to OIG consultant John Vanderkolk, a member of SWGFAST who

participated in the deliberations regarding this definition, the "suitability for

comparison" standard represented a meaningful revision of the benchmark

traditionally employed in the discipline, which was "sufficient for identification"

or "of value for identification." Vanderkolk stated that historically, many

examiners were reluctant to utilize the "inconclusive" conclusion in a case in

which they had previously found the latent print to be "of value for

identification." If the examiner was unable to identify or exclude, he would

revert to the analysis phase and declare the latent print to have "no value."

82 Meagher testimony in LIera Plaza, p. 48.

113
Vanderkolk stated that the purpose of SWGFAST's adoption of the

"suitable for comparison" benchmark was to eliminate the tension in the

SWGFAST definitions that was discouraging examiners from utilizing the

"inconclusive" result in appropriate cases. Under the revised definitions, a

print might be deemed ':suitable for comparison" during the analysis phase and

yet during the comparison phase, the examiner might find that there is too

much uncertainty to declare a result of individualization or exclusion. For

example, the examiner might find differences between the prints, but be unable

to resolve uncertainty regarding whether these differences were mere

distortions, or the result of having been made by different people. A conclusion

of "inconclusive" would be appropriate in such a case. Dusty Clark and

Michael Grimm, two other SWGFAST members who served as consultants to

the OIG, agreed with this interpretation of the revised SWGFAST

Methodology. 8a

Although the FBI LPU has incorporated the SWGFAST Standards into the

Examination SOPs by reference, it is not clear that this change in terminology

and attitude toward the "inconclusive" result has been integrated into LPU

practice. The FBI examiners that we interviewed still generally described the

analysis step as involving a determination of whether the print is "of value,"

i.e., whether there is sufficient information in the print to effect an

individualization, and not merely whether the print is "suitable for

comparison." LPU Unit Chief Meagher told the OIG that most instances of

"inconclusive" results in the LPU occur when the exemplar print turns out to

be of poorer quality than the latent print. 84 If the quality of the exemplar is

s3 The shift to a "suitable for comparison" standard that admits to the possibility that

the latent fingerprint will nevertheless ultimately prove to be unidentifiable was advocated at

least as early as 1988 in David L. Grieve, "The Identification Process: Attitude and Approach,"

Journal of Forensic Iclentij_cation, Vol. 39, No. 5, 1988, p. 211.

s4 Meagher's characterization of the Laboratory's usage of the "inconclusive" result is

confirmed by a recent revisions to the Laboratory's Examination SOPs, which state in relevant

part that "[i]nconclusive evaluation results when a qualified latent print examiner is unable to

individualize or exclude the source of an impression because the corresponding areas of

friction ridge detail are absent, i.e. the impression to be compared is from the tip or lower joint

of a finger and the corresponding area (tip or lower joint) is not captured on the known card or

second impression, or is unusable due to distortion." According to the Laboratory, this revision

does not reflect a change in FBI Laboratory practice but rather is consistent with practice

existing at the time of the misidentification of LFP 17. Apparently this circumstance (lack of

usable detail in a relevant portion of the exemplar print) is not unusual. According to the

Laboratory, a recent sampling of cases indicated that approximately 50 percent of all FBI

Laboratory latent print reports include at least one comparison that resulted in an

"inconclusive" determination. (Because many case reports involve a large number of

comparisons, the 50 percent does not represent the frequency of the inconclusive result among

all individual comparisons.) We do not believe that the Laboratory's definition of the

"inconclusive" result is consistent with the revised SWGFAST Methodology, as described above.

114
good but the examiner is unable to reach the level of certainty required to

declare a conclusion of either individualization or exclusion, it is the practice of

some FBI examiners to revisit the analysis phase and declare the latent print to

be of "no value." For example, Terry Green told the OIG that this was his

practice. Meagher stated that in the case of an ::inconclusive" result, the LPU

would not normally inform the investigators that there is a potential subject

who cannot be excluded as the source of the latent fingerprint.

4. Verification

The Examination SOPs and the SWGFAST Methodology require that all

identifications be verified. "Verification" is defined simply as "the independent

examination by another qualified examiner resulting in the same conclusion."

The verification procedures in the LPU are undergoing revision as a result of

the Mayfield matter. The following description pertains to the procedures that

were in place at the time of the Mayfield identification.

The LPU Quality Assurance Manual, Procedures for Reviewing a Report

of Examination, required that a supervisor select the second examiner for

verification comparisons. LPU Unit Chief Meagher told the OIG that in

practice, if the supervisor was unavailable, the examiner could simply ask

another examiner in the LPU to perform the verification. Meagher stated that

although the verifier was aware of the fact that the first examiner had made an

identification, the verifier would not know which features in the print were

relied upon by the initial examiner in reaching his conclusion.

There was no policy within the LPU addressing the issue of whether

consultation between the initial examiner and the verifier is appropriate. In

practice, LPU verifiers sometimes consulted with the initial examiner,

particularly for the purpose of assisting in an initial orientation of the prints so

that the verifier did not spend too much time simply finding the portion of the

exemplar that the initial examiner found to be a match to the latent print.

The LPU Quality Assurance Manual provided that if the second examiner

reached a different conclusion, the matter "must be referred to the supervisor

and/or the Unit Chief for resolution." No formal statistics regarding the

frequency of this occurrence have been maintained by the LPU, but LPU

witnesses interviewed by the OIG stated that a refused verification was as an

extremely unusual event. One option available to the supervisor was to select

another verifier if the first verifier declined to confirm the identification. In that

instance, there was no policy requiring that the first verifier's disagreement be

documented in the case file.

115
F. Standard for Declaring a Match

Neither the Examination SOPs nor the SWGFAST Standards for

Conclusions specify how much "agreement" is "sufficient" to support a

conclusion of identification. Historically, many examiners have required that a

minimum number of Level 2 ridge deviations be in agreement in order to

declare an identification, although the specific threshold varied among

jurisdictions, laboratories, and examiners. The FBI Laboratory and SWGFAST

currently reject any requirement that a "predetermined number of

corresponding friction ridge details" be in agreement, however. Instead, the

determination is committed to the judgment and expertise of the individual

examiner, who is instructed to take into account both the quantity and quality

of available friction ridge detail. Ashbaugh explains this standard as follows:

A frequently asked question is, "How much is enough?" The

opinion of individualization or identification is subjective. It is an

opinion formed by the friction ridge identification specialist based

on the friction ridge formations found in agreement during

comparison. The validity of the opinion is _uupl_u'--' ---'_'-wlulm_ _umLy-_"'_--

to defend that position, and both are founded in one's personal

knowledge, ability and experience .... [I]t must be clearly

understood that if there is any doubt whether there is sufficient

specific detail present to individualize, then an opinion of

individualization cannot be formed.

How much is enough? Finding adequate friction ridge

formations in sequence that one knows are specific details of the

friction skin, and in the opinion of the friction ridge identification

specialist that there is sufficient uniqueness within those details to

eliminate all other possible donors in the world, is considered

enough. At that point individualization has occurred and the print

has been identified. The identification was established by the

agreement of friction ridge formations in sequence having sufficient

uniqueness to individualize. 8s

This standard is utilized not only by the FBI LPU, but by many other

forensic laboratories in North America and Great Britain. This standard is

often associated with "Ridgeology," an expression coined by David Ashbaugh to

mean "the study of the uniqueness of friction ridge structures and their use for

personal identification. "s6 Ashbaugh states that "over the years ridgeology has

85 Ashbaugh, p. 103 (emphasis in original).

86 Id. at 8.

116
gained acceptance as a word describing a friction ridge identification process

based on a quantitative-qualitative analysis as opposed to the old static

[numerical threshold] method. "s7 For convenience, therefore, the standard in

place in the FBI Laboratory at the time of the Mayfield identification is referred

to as the "Ridgeoiogy Standard" in this report.

The alternative to the Ridgeology Standard is the utilization of a

numerical standard for declaring an identification based on a specific number

of minutiae or "points" in correspondence as to type, orientation, and relative

position (the "Numerical Standard"). The premise of establishing such a

standard is that the probability of encountering two different fingers that share

that number of minutiae in common is infinitesimal and can be disregarded.

Although the Numerical Standard approach has been rejected by

SWGFAST, the FBI, and other forensic laboratories in the United States, this

approach is utilized in many other countries. A 2002 survey reported a variety

of numerical standards utilized in different European countries ranging from 8

to 16 points, ss The Spanish National Police Forensic Science Division utilizes a

ninuliiLliii ui o to I z pOlilt_, OUt permits ml examiner to attestto an

identification based ona smaller number under certain circumstances.

There is a vigorous debate among fingerprint examiners, other forensic

scientists, academics, and lawyers regarding the comparative merits of the

Ridgeology Standard and the Numerical Standard. Opponents of the

Ridgeology Standard have made the following criticisms, among others:

® Because the Ridgeology Standard lacks objective criteria, there can be no

assurance that different examiners will reach the same result.

• Because the Ridgeology Standard provides no statistically or

experientially based margin of safety, its use increases the risk that an

erroneous identification will occur.

• The Ridge01ogy Standard encourages increased reliance on Level 3

details, the reliability and reproducibility of which are in dispute.

• Although the standard purports to permit the examiner to take into

account the "uniqueness" of different kinds of friction ridge details,

research into the relative frequencies with which different characteristics

87 Id.

88 "European Fingerprint Standards (A 'Pointless' Exercise), Fingerprint Whorlcl, Vol. 28,

No. 107, January 2002, p. 19. Great Britain abandoned a 16-point standard in 2001.

117
or combinations of features appear is lacking, and there is no consensus

among examiners about which characteristics are more unique and

hence have more identifying power.

Opponents of utilizing a Numerical Standard have made the following

arguments, among others:

• The numerical thresholds utilized by many examiners were based on

little more than educated conjecture. There is no formal scientific

probability study or other validation study justifying a minimum point

standard.

• The Numerical Standard omits consideration of the clarity of the

minutiae.

• The Numerical Standard lacks consideration of Level 3 detail, which may

have significant identifying power.

• The Numerical Standard fails to take account of the greater

individualizing power of particularly rare features in the prints.

• The practice of merely counting minutiae tends to distract the examiner

from conducting a complete comparison of all aspects of the print,

including the distance and ridge path between points.

It is beyond the scope of the OIG's investigation to offer conclusions or

recommendations regarding the relative merits of Ridgeology or a Numerical

Standard. In Chapter Four of this report, however, the OIG examines the

relationship between the standard utilized by the FBI Laboratory in the

Mayfield case and the erroneous identification.

G. Integrated Automated Fingerprint Identification System

(IAFIS)

The FBI's IAFIS is a system for conducting computerized searches of FBI

databases containing the known fingerprints of over 47 million individuals

(over 470 million separate prints). The LPU examiners use IAFIS to attempt to

identify latent fingerprints in cases lacking known subjects. The IAFIS

databases include a Criminal Master File containing known prints taken

pursuant to local, state, and federal arrests; a Civil File containing known

prints taken in a non-criminal context, such as for military service or

government employment; a Special Latent Cognizant File containing the known

fingerprints of terrorism suspects and victims; and an Unsolved Latent File

containing unidentified latent fingerprints from unsolved crimes.

118
To conduct an IAFIS search, the examiner "encodes" the latent print on

his computer screen by marking selected ridge deviations such as ending

ridges and bifurcations. The IAFIS program compares the pattern of points in

the latent print, as encoded by the examiner, with the patterns of points in

millions of known fingerprints in its databases.

When encoding a latent print for an IAFIS search, the examiner marks

both the location of the point and its orientation (the direction of the ridges as

they leave the point). The encoder distinguishes between ending ridges and

bifurcations by marking the direction of the point differently, s9

The examiner does not necessarily encode every point he can find in the

latent print. LPU examiners have learned through experience with the IAFIS

program which types of points are most likely to yield a correct match. LPU

Unit Chief Meagher told the OIG that examiners are taught to avoid encoding

points in areas of high curvature ridge flow, such as the extreme core of a

print. Unit Chief Wieners and Supervisor Green told the OIG that IAFIS does

not do well when asked to search prints in which points have been encoded in

twu ur niu_ _lu_L_ _pm_t_u uy _ gap. One reason is that IAFi_ gives

significant weight to the ridge count between points. If the ridge count between

two clusters of points in a latent is unclear, IAFIS may fail to retrieve the true

source of the print. Thus, an examiner will not necessarily encode every point

that can be seen in a latent fingerprint, but rather may limit his encoding to

points in a defined area in which the ridge count between points is clear.

There is an important distinction between the IAFIS encoding process

and the analysis phase of the ACE-V process as described above. To encode a

print for IAFIS, an examiner utilizes only part of the information that is

collected during the analysis phase- specifically, the location and orientation

of the selected minutiae. Among other things, the encoding process does not

utilize information about the complete ridge path betweenpoints, and does not

utilize Level 3 details. Nevertheless, as to the encoded points, the encoding

record does reflect the examiner's contemporaneous analysis at a stage prior to

the introduction of any possible bias as a result of comparison to an exemplar

print.

89 For an ending ridge, the encoder marks the direction of the point by drawing a line

back up the ridge itself. For a bifurcation, the encoder indicates the orientation by drawing the

line between the two forking ridges, essentially bisecting the angle formed by the bifurcating

ridges. In some cases the encoder will not be certain whether a point in a latent fingerprint is a

bifurcation or an ending ridge, and the way he encodes the point is an educated guess. The

IAFIS program does not distinguish between ending ridges and bifurcations, and has sufficient

tolerance for differences in the orientation of points to find the proper candidate even if a

particular bifurcation is incorrectly marked as an ending ridge or vice-versa.

119
The examiner selects which databases to search and uses available

_-_f_'_o_,_ to ,_o,-_,,, _h_ __ _ _h_ _o_oho_ that are .......... j .............................._"................ _h_l h,, the

computer. Because no more than 30 percentof the huge Criminal Master File

database can be searched at one time,the examiner must narrow the scope of

the search by specifyinginformationabout the fingerprintor the subject.This

informationmight includethe race or sex ofthe subject,the particulardigit

being searched (suchas a rightindex finger),or the Level 1 pattern (such as

whorls,loops,orarches). Ifthe availableinformationabout the latent

fingerprintisinsufficientto achievethislimitation,itcan be achieved

artificially,such as by breaking the search intoten separatesearches,one for

each possibledigit.

The IAFIS program generates a list of 10 or 20 candidates whose known

•fingerprints score the highest according to a complex algorithm that measures

the correspondence of points in the known prints with the encoded points,

considering location, orientation, and relationship to other points. Contrary to

the impression given by some popular television crime shows, the computer

does not make an identification of the latent fingerprint. The examiner

conducts a manual examination of the candidate prints, utilizing the ACE-V

procedure described above. The examiner initially compares the candidate

prints side-by-side with the latent fingerprint on his computer screen, but he

may retrieve the original lO-print cards for further comparison before reaching

a final conclusion.

Many IAFIS searches do not result in identifications. Among other

reasons, the known fingerprints of the person who made the latent fingerprint

may not be in any of the IAFIS databases. Since IAFIS was placed in service in

1999, the LPU has declared approximately 1200 identifications of latent

fingerprints from IAFIS searches. This is a small fraction of the IAFIS searches

that have been conducted during that time.

The examiners interviewed by the OIG stated that the numerical score

generated by IAFIS is less significant than the gap between the top scoring

candidate and the other candidates. If there is a large gap, this tends to be

suggestive that the top candidate is in fact the source of the print. Data

provided by the FBI Laboratory indicates that the scoring formula is quite

effective in ranking the candidates. In those cases in which an IAFIS search

resulted in an identification, the candidate identified by the LPU as the source

of the print received the highest score over 80 percent of the time, and received

one of the top three scores over 90 percent of the time. However, the

Laboratory does not use a print's IAFIS score as a criterion for declaring an

identification, and there is no FBI SOP, policy, or fingerprint identification

reference that suggests it should do so. The algorithm used by IAFIS to

generate candidate rankings does not take into account much of the

information that human examiners use to reach the conclusion of

120
identification, such as the path taken by a ridge between two points or Level 3

details. IAFIS is a tool for narrowing the field of candidates to a manageable

size utilizing computer technology; it is not a substitute for a complete ACE-V

examination.

H. Simultaneous Impressions

Latent fingerprints sometimes appear on evidence in a relationship to

one another that permits the examiner to infer that the prints were deposited

simultaneously by different fingers of the same hand. There are a variety of

potential indicators that a simultaneous touch may have occurred, such as

when the location and anatomy of latent prints on opposite sides of a piece of

paper suggest that the paper has been grasped by a thumb and index finger.

The determination that two latent prints were deposited simultaneously

has several potential uses in identification. The determination may reveal

which digit was associated with each separate print (as in the thumb-index

finger example above), which may permit the examiner to specify the digit to be

searched in IAFIS and to _- _,_ A__-_-_ __ _ __-__ ___ _..=__

the comparison phase.

A second use of simultaneous impressions is to permit identifications in

cases where the detail in each individual latent print is insufficient to support

an identification standing alone, but the cumulative detail in both prints in

agreement with the exemplar prints is sufficient to individualize. 9° At the time

of the identification of LFP 17, Section 5.1 of the Examination SOPs stated:

"When the friction ridge impressions of two or more fingers of one hand, each

in a natural relationship with the other, are found then the information from

all impressions is used to reach a conclusion." The LPU Quality Assurance

Manual, Procedures for Reviewing a Report of Examination, required the

approval of a supervisor and/or Unit Chief for any identification of

simultaneous prints in which neither latent print contains 12 or more Level 2

characteristics.

Neither the LPU's SOPs nor the SWGFAST Methodology specify any

methodology or criteria for determining whether two latent prints were

deposited simultaneously, although such modifications are currently under

consideration in the LPU. Ashbaugh provides a brief 2-page discussion of the

issue, cautioning that an identification based on cluster prints is an "advanced

9o Ashbaugh, pp. 134-135.

121
technique" and that novices should seek advice from senior specialists before

attempting such a comparison. 91

I. Documentation and Review Requirements

Fingerprint identifications by the FBI LPU are documented in reports

compiled pursuant to procedures set forth in the FBI LPU Quality Assurance

Manual. As detailed in Chapter Five, the LPU documentation requirements are

undergoing substantial revision. The following description relates to the

procedures that were in place at the time of the Mayfield identification.

The procedures required that a fingerprint identification report contain

the following sections: (1) administrative information about the request for

examination; (2) a listing and description of the evidence submitted to, or

examined in, the LPU; (3) a remarks section; and (4) a "Results of Examination"

section. The wording used to convey the results was left to the discretion of the

examiner, subject to the approval of the Unit Chief. There was no requirement

that the different phases of the ACE-V examination process be described or

explained in any way beyond the statement of ...... '---" ....... '- -- "' ...... k:t EUIIIJILIkilL;II, bUEll dki Ii=LL_IIL

fingerprint X was identified as a fingerprint of John Doe." The examiner was

not required to identify any matching details upon which the identification was

based, specify any differences in appearance between the latent print and the

exemplars, or document any explanations adopted by the examiner with

respect to such differences. The documentation could include a set of

photographs that the examiner had "pin-punched" to mark important points on

which he had relied. Detailed charted enlargements of the comparison were

usually not prepared unless needed for a trial. The documentation

requirement for a verification was satisfied when the second examiner wrote

the word "verified" on the case notes followed by his signature and date. The

FBI's documentation requirements, which were similar to those in place in

other forensic laboratories, satisfied ASCLD/LAB standards. The FBI

Laboratory was accredited by ASCLD/LAB beginning in 1998.

The LPU Quality Assurance Manual required that a supervisor conduct a

Peer Review and an Administrative Review of each Report of Examination

before the report was issued. The Peer Review involved ensuring that

appropriate examinations had been performed and that any identifications had

been verified and documented. According to the LPU Quality Assurance

Manual, the Peer Review also ensured that "conclusions are supported in the

examination documentation and are within the limitations of the discipline."

The LPU examiners interviewed by the OIG confirmed, however, that in practice

the Peer Review did not involve a substantive review of the basis of the

91 Id.

122
examiner's conclusion and did not constitute a separate examination of the

relevant fingerprints. In the absence of any requirement that the basis of the

examiner's conclusions be described or recorded in the Report of Examination,

in practice the Peer Review could not actually involve a determination uf

whether an identification was _within the limitations of the discipline."

The Manual required the Administrative Review to ensure that the Report

of Examination was '_clear, concise, accurate and complete," and that the

documentation conformed to the FBI Laboratory Caseworking Procedures

Manual: Procedures for Examination of Evidence. The LPU examiners

interviewed by the OIG described the Administrative Review as ensuring that

the format of the Report is in compliance with applicable policies. Like the Peer

Review, the Administrative Review did not involve a separate examination of the

fingerprints.

The LPU Quality Assurance Manual also required that at least one

Technical/Casework review be conducted per month for each case-working

examiner. Case reviews "..... ' _1_,.... ,___- .... _ _ _ __ _._

latent fingerprint development techniques used by the examiner (processing

reviews) or a complete review of the ACE-V examination carried out in the case

(comparison reviews).

J. Errors

Conceptually, there are two kinds of errors that an examiner can make in

reaching a conclusion about a latent fingerprint: an erroneous

individualization (_false positive") or a missed identification ("false negative").

According to Section 2.2.1 of the SWGFAST Quality Assurance Guidelines for

Latent Print Examiners, _[a]n erroneous identification is the most serious error

a latent print examiner can make in casework." By contrast, a missed

identification may or may not be the result of a deficiency in the examination.

For example, even if two friction ridge impressions are from the same source,

there may not be sufficient detail available in one of the prints to permit the

examiner to reach a conclusion of identification, or the examiner may not be

able to explain perceived differences in appearance between the prints with

sufficient certainty to effect an identification. In such a case, the proper

conclusion for the examiner would be either a determination that the print was

not _suitable for comparison" or an _qnconclusive" determination. A missed

identification may be the result of applying a conservative approach to

identification in order to prevent false positives. A missed identification of a

fingerprint is only considered an error if the examiner should have been able to

make the identification with a proper application of the ACE-V methodology.

123
According to SWGFAST, two experts having different levels of training,

experience, and ability may differ in their conclusions between inconclusive

and identification, or between inconclusive or exclusion, without either of them

having committed an error. 92 However, conflicting opinions of identification

and exclusion denotes an error on the part of one expert. 93

In addressing the question of whether mistakes can be made in the

examination of fingerprints, SWGFAST states: "In any human endeavor, there

is a potential for error. Adherence to SWGFAST guidelines for training and

quality assurance minimize the risk for human error. Human error should not

be confused with methodological or scientific error." 94 In the same document,

SWGFAST describes erroneous identifications and missed identifications as

types of "human error" but does not explicitly identify any types of

"methodological or scientific" errors. 9s Some examiners have testified in court

that the error rate for the ACE-V methodology, properly applied, is zero or

?

nearly zero, and several examiners interviewed by the OIG made the same

assertion. 96 Critics of such claims have argued that in the absence of an

objective standard for identification, it is impossible to distinguish between a

k:tllU nX_LUUUUIUgIL;_U error rate a practitioner error rate, because the

examination process is inextricably linked with the human examiner. 97

In 2002, prior to the misidentification of LFP 17, LPU Unit Chief Meagher

testified that to his knowledge, no FBI fingerprint examiner had ever testified to

an erroneous identification in court. 98 Meagher testified that he was unaware

of any instance in which any other fingerprint expert had ever testified that an

FBI examiner had made an erroneous in-court identification. Meagher testified

that he was aware of one instance in which an FBI examiner discovered her

own erroneous identification in 1999 while preparing for trial. The verifier had

also made an erroneous identification of this latent print. Meagher testified

that, on the basis of conversations with other LPU Unit Chiefs and other

examiners, "on average, the FBI has made an erroneous identification about

once every 1 1 years. "99 However, other instances of erroneous identifications

92 SWGFAST Press Kit, Section 13, available at www.sw_fast.or_.

93 Id.

94 Id., Section 7.1.

95 Id., Section 8.

96 See, e.g., U.S.v. Mitchell, 365 F.3d at 239 ("the existence of any error rate at all

seems strongly disputed by some fingerprint examiners"), 246 ("some latent fingerprint experts

insist that there is no error rate associated with their activities").

97 See, e.g., Stoney, § 27-2.3.2; Cole, p. 1232.

98 Meagher testimony in LIera Plaza, pp. 108-114.

99 Id., p. 114. The OIG did not attempt to confirm this reported error rate.

124
by non-FBI fingerprint examiners have been reported, some of which have

received significant publicity. 100

Section 7.1. of the LPU Quality Assurance Manual governs steps that

must be taken in the event of an error. These provisions are discussed in

greater detail in Chapter Five of this report in connection with their application

to the examiners involved in the Mayfield error.

100 See, e.g., cases described in Cole, p. 1231, n. 176, including State v. Caldwell, 322

N.W.2d 574, 581-82 (Minn. 1982). In the Caldwell case, the Minnesota Supreme Court

reversed a murder conviction that had been based, in part, on the testimony of the

prosecution's latent fingerprint expert. The court found the identification was erroneous,

based on the post-trial testimony of other examiners, that the print was illegible or that the

comparison was inconclusive. See also CBS New Transcript, 60 Minutes, January 5, 2003,

describing the Ricky Jackson case. In that case, the FBI examiners helped to uncover an error

made by local police department examiners that resulted in a murder conviction. After the

trial, the defendant's experts obtained a determination by the IAI that the identification was

erroneous. According to the CBS News transcript, the district attorney asked the FBI for an

opinion, and the FBI Laboratory determined that the identification was wrong. Jackson was

released after more than two years of incarceration.

125
[BLANK PAGE]

126
CHAPTER FOUR

OFFICE OF THE INSPECTOR GENERAL'S ASSESSMENT

OF THE CAUSES OF THE FINGERPRINT MISIDENTIFICATION

In this chapter, the OIG presents its analysis of the causes of the FBI's

misidentification of Latent Fingerprint 17 (LFP 17). At the outset, we note that

the OIG's investigation was not the only review of these causes. Shortly after

the error was discovered, the FBI Laboratory assembled an International Panel

of seven latent fingerprint experts to determine how the examination of LFP 17

failed, and to make recommendations for changes in the FBI Laboratory Latent

Print Units (LPU). Part I of this chapter summarizes the findings of the Panel

and describes the difference in scope and procedure between the Panel's review

and the OIG's investigation. Part II of this chapter sets forth the OIG's analysis

of the causes of the misidentification of LFP 17.

I. The International Panel Review

A. Findings of the International Panel

The FBI Laboratory recruited five latent fingerprint examiners to serve on

the International Panel: Alan McRoberts (Chairman of SWGFAST), C. Lee

Fraser (Royal Canadian Mounted Police), Ron Smith (Ron Smith & Associates),

Bruce Grant (New Scotland Yard), and Gregoire Michaud (Michigan State

Police). In addition, the Laboratory requested that the International

Association for Identification (IAI) and the American Society of Crime

Laboratory Directors (ASCLD) nominate two other panelists. The IAI selected

Ken Smith (U.S. Postal Inspection Service) and ASCLD selected Frank

Fitzpatrick (Orange County Sheriff, Coroner Laboratory). The OIG interviewed

panel members Ron Smith and Ken Smith for this investigation.

The Panel met at the FBI Laboratory-in Quantico, Virginia, on

June 17-18, 2004. The Laboratory provided the Panel with two volumes of

documentation consisting primarily of numerous images of the latent

fingerprints that were transmitted to the Laboratory from the Spanish National

Police (SNP) (many of which were not copies of LFP 17 or LFP 20), copies of the

known prints of Mayfield and Daoud, and the FBI Laboratory reports regarding

the SNP submissions. LPU Unit Chief Wieners also made a PowerPoint

presentation to the Panel demonstrating the similarities and dissimilarities

with the Mayfield prints observed by the FBI examiners during the examination

of LFP 17. The panelists were not permitted to take the documents with them

at the end of the meeting for further review. The Panel was permitted to

interview LPU personnel Green, Wieners, and Meagher. Following the 2-day

meeting, each panel member prepared a separate report. The Laboratory

127
prepared a synopsis of the comments submitted by the individual panelists,

which was published in the Journal of Forensic Identification. 1°1 The panelists

identified the following as the primary causes of the misidentification:

• Failure to follow properly the Analysis, Comparison, Evaluation and

Verification (ACE-V) steps in fingerprint examination. In particular,

Green failed to conduct a complete analysis of LFP 17 before conducting

the Integrated Automated Fingerprint Identification System (IAFIS)

search, which in turn caused him to disregard important differences in

appearance between LFP 17 and Mayfield's known prints.

® The power of the IAFIS match and the pressure of working on a highprofile case influenced Green's initial judgment and created a mind-set in

which his examination became biased by an expectation that the prints

were a match.

• The subsequent examinations by Massey and Wieners were "tainted" by

knowledge of Green's conclusion.

The panelists made several recommendations for changes in the procedures

utilized by the FBI Laboratory. Chief among these was the adoption of

procedures to require more detailed documentation of all steps of the

examination process, including documentation of any discrepancies in the

prints and explanations for those discrepancies. The panelists also

recommended that the Laboratory implement several changes to its verification

procedures, including blind verifications (i.e., previous conclusions unknown to

the verifier) and second verifications in designated cases.

B. Differences Between the OIG Investigation and the

International Panel Review

The scope of the OIG's investigation of the Mayfield matter was much

broader than the questions posed by the Laboratory to the International Panel.

For example, part of the OIG's investigation involved determining the sequence

of events leading up to and following the error. The OIG collected much more

information about the identification process than was provided to the Panel.

The FBI Laboratory also provided the Panel with many facts as a "given," prior

to any detailed investigation of what occurred. In addition, the OIG addressed

many non-fingerprint issues raised in connection with the Mayfield matter,

issues that were outside the scope of the International Panel Review.

101 Robert B. Stacey, "A Report on the Erroneous Fingerprint Individualization in the

Madrid Train Bombing Case," Journal of Forensic Identification, Vol. 54, No. 6, 2004, p. 707.

128
With respect to the question of the causes of the erroneous identification,

which both the OIG and the International Panel addressed, the OIG had

advantages in preparing this report that were not available to the Panel. The

Panel was convened very quickly after the FBI withdrew its identification of

x_yu_u and met two uays At IUI- umy , the time the Panel met (June 17 i _,

2004), the FBI Laboratory still had not issued its final report identifying Daoud

as the source of LFP 17. The Laboratory's determination that the print was of

"no value" had not yet been formally withdrawn. Although the Panel was given

access to the relevant fingerprint images, Panel members were not permitted to

remove those images from the meeting room and could not utilize the images in

their individual reports. Probably as a result, the conclusions of the Panel

members tended to be expressed in highly generalized terms and did not

reference specific features in the prints.

The OIG had access to a far larger collection of materials than did the

International Panel and was able to interview a much larger number of

witnesses over a longer period of time. The OIG had access to the charted

enlargements prepared by the LPU examiners who ultimately identified Daoud,

Wlllt.ll VV_l_ llUt llliZttlg t:_VCtll_tUl_ to tile IIILEIII_tLIUIIt[I l-'tUl_l- IFltl_tl, some of the

charted enlargements apparently did not yet exist at the time the Panel met.

The availability of these enlargements assisted the OIG and its consultants to

conduct a comprehensive, ridge-by-ridge and feature-by-feature assessment of

the erroneous identification that included a comparison of the features used in

the Mayfield identification with the features later used to identify Daoud. This

information provided an opportunity for a detailed examination of the

erroneous identification that was informed by access to exemplars from the

true source of the latent- information that is often unavailable in the case of

erroneous identifications. We believe that the differences in time and

information available to the OIG are the primary reasons for the differences

between the conclusions reached by the OIG and those of the Panel.

II. OIG Assessment of Causes of the Erroneous Identification

In this section, the OIG describes its assessment of the causes of the

misidentification of LFP 17. In the first subsection, the OIG sets forth the

factors that it determined to be major contributing causes to the error. In the

second subsection, the OIG addresses three additional potential causes of the

error. Although we did not find sufficient evidence to conclude that these three

additional factors caused the error in this case, we did find that there is

potential for these factors to contribute to future errors. We therefore made

specific recommendations for action by the Laboratory to address these factors.

In the third subsection, we address the specific allegation that the LPU error

was the result of discrimination based on Mayfield's Muslim faith. In the

fourth subsection, the OIG discusses explanations for the error that have been

129
suggested previously by the FBI and other sources, but that the OIG

specifically found did not contribute to the misidentification.

A. Major Contributing Causes of the Error

I. The unusual similarity of the prints

The OIG concluded that the unusual similarity in the pattern of Level 2

details within the friction ridges on the fingers of Mayfield and Daoud was a

significant factor in the misidentification. Although the friction ridges of

Mayfield and Daoud were not identical, there was sufficient similarity between

them to cause confusion in identifying the source of an imperfectly reproduced

latent fingerprint (LFP 17). This unusual similarity confused at least three

experienced examiners in the FBI (as well as the expert selected by Mayfield's

attorneys), and was an important factor contributing to the erroneous

identification. This conclusion was based on interviews of witnesses,

consultation with experts, and detailed review of the documentation relating to

the identification of Mayfield and Daoud.

This similarity is illustrated by considering the Level 2 features in the

latent print that were utilized by different LPU examiners to identify both

Mayfield and Daoud. As previously noted, on March 22, 2004, shortly after

making the identification of Mayfield, Green prepared charted enlargements for

the SNP showing 15 Level 2 details in common between LFP 17 and Mayfield's

known fingerprint (Figures 2A and 2B). Of these 15 features in the latent print,

10 were also later used by other examiners in the Laboratory to identify Daoud

as the source of the print. These common features are illustrated in Figures

6A-6C. A detailed description of these features is presented in tabular form in

Appendix I.

As shown in the Figures, these 10 Level 2 details in the latent print were

at least generally consistent with features in the known prints for both Mayfield

and Daoud in location, direction, and ridge count, and hence were utilized in

both identifications. An appreciation of the consistency can be obtained by

working one's way from point to point on all three images. The useful starting

point in the comparison of these prints is the distinctive feature in the bottom

center of the latent print that Green marked as Point 6 in the March 22

Charted Enlargements. This feature was incorrectly interpreted as a "dot" in

the Mayfield exemplar, but it turned out to be the top edge of an incompletely

reproduced "enclosure" visible in the Daoud exemplar. 1°2

102As shown in Figure 4, an "enclosure" is formed by two opposing bifurcations, so

that a single ridge splits into two and then rejoins into one over a short distance.

130
Using Point 6 as a starting point, it appears that the direction from one

point to the next is similar in all three prints, and the number of intervening

ridges is consistent as well. For example, Point 5 on LFP 17 and on the

Mayfield exemplar is an ending ridge three ridges up from Point 6 and to the

right. There is an ending ridge three ridges up from the enclosure and to the

right on the Daoud exemplar as well. In charting Point 5 (and all the other

points shown in Figures 6A-6C, for that matter) as a similarity to Mayfield, the

LPU examiners were misled by the fact that there was indeed a Level 2 detail in

the friction ridge patterns of Daoud, the true source of LFP 17, bearing a

similar relationship in ridge count and location to the other plotted details.

What is remarkable is that this relationship in location and ridge count

maintains a general consistency among as many as 10 points in the exemplars

for both Mayfield and Daoud.

The fact that many features were utilized in both identifications is not in

itself surprising. The use of the same features in the correct identification of

Daoud confirms, however, that based on his analysis of LFP 17, Green did not

err in finding that Level 2 ridge deviations occurred at or very near to these 10

llli=tlr_Eu IUL:_ctLIUII_ 111 LII_ I_tL_IIL print. As to these features at least, the LPU

examiners were misled not by distortions in the print, but rather by close

similarities in the friction ridge formations on the fingers of Mayfield and

Daoud, which complicated the problem of determining the true source of

LFP 17.

The OIG confirmed during interviews of Supervisory Fingerprint

Specialist Green and Unit Chief Wieners that these 10 points were an

important factor in reaching their conclusion that Mayfield was the source of

the print. _1°3 Kenneth Moses, the court-appointed expert who agreed with the

Mayfield identification, described the reasoning that led to his conclusion in

presentations at two forensic science conferences. Moses pointed out eight

corresponding Level 2 details between the latent print and the Mayfield

exemplars that strongly influenced him toward making an identification. Most

of the minutiae that Moses identified were among the same 10 features marked

in Figures 6A-6C.

In observing the similarity in the location, direction, and ridge count for

these features as between the Mayfield and Daoud prints, the OIG is not

suggesting that the prints, or these 10 features, are identical. As can be seen

103 As noted above, John T. Massey, the examiner who verified the identification, did

not consent to be interviewed for this investigation. FBI policies at the time did not require

Massey to document the similarities forming the basis for his verification, and there is no

written record of whether he also relied on these 10 "common points," although it seems highly

likely that he did.

131
FIGURE 6A 

Level 2 Details Used To Identify Mayfield Also Used To Identify 

Daoud (LFP 17) 

&:!*> 

Ir- k 
FIGURE 6B 

Level 2 Details Used To Identify Mayfield Also Used To Identify 

Daoud (Mayfield Exemplar) 
FIGURE 6C 

Level 2 Details Used To Identifg Mayfield Also Used To Identify 

Daoud (Daoud Exemplar) 
[OPEN]

135
in Figures 6B and 6C, in many instances the type of feature (ending ridge

versus bifurcation) turned out to be different on the Mayfield exemplars

compared to the Daoud exemplars. As explained in Chapter Three, it can be

difficult to distinguish between an ending ridge and a bifurcation in a latent

print of imperfect clarity, and it is not extraordinary for an examiner to

withhold final determination of the type of feature until the comparison phase.

There are also other subtle dissimilarities in the positioning of these 10

features between the prints, and other dissimilarities in appearance between

the latent print and the Mayfield exemplars.

Even taking into account the ambiguity as to whether particular features

were ending ridges or bifurcations, the correspondence of 10 Level 2 details in

prints from different sources, in sequence and with consistent ridge counts, is

an extremely unusual event. Although the OIG found no exhaustive or

systematic study of the rarity of such an event, anecdotal reports in the

literature of similar fingerprints from different sources suggest that nobody has

yet demonstrated more than eight or nine Level 2 details in sequence from

different sources, even using prints that were artificially cropped to omit

dissimilarities. :°4 in describing his error, Moses emphasized the unusual

nature of this many minutiae in agreement:

It was at this point that my mind shifted toward agreement with

the Bureau's identification. I had never personally seen or read in

the literature where two friction ridge images could share eight

minutiae and still belong to different persons. Many state, local,

and federal labs currently use eight minutiae as their ex officio

comfort level for quality assurance purposes, l°S

Thus, the OIG concluded that there were as many as 10 Level 2 ridge

formations on the fingers of both Daoud and Mayfield, forming a similar

constellation with consistent intervening ridge counts on both fingers, which

104 See, e.g., Thornton (describing spurious comparison of cropped palm prints with

nine points of agreement); John D. "Dusty" Clark, "ACE-V- Is it Scientifically Reliable and

Accurate?" Journal of Forensic Mentification, Vol. 52, No. 4, 2002, pp. 401-408 (illustrating

cropped impressions _vith eight matching ridge deviations, with some variance in relative

location); Y. Mark and D. Attias, "What is the Minimum Standard of Characteristics for

Fingerprint Identification?" Fingerprint WhorId, Vol. 22, No. 86, October 1996 (reporting

discovery of non-identical prints with seven matching characteristics). The correspondence of

features in the Mayfield matter may not be as dramatic as in these other cases due to the

ambiguity in the latent as to the types of features (bifurcation versus ending ridge) and the

dissimilarities in other parts of the prints.

105 Kenneth Moses, "The Mayfield Case - Anatomy of an Error," PowerPoint

presentation, 2005, p. 6. See also Stoney, p. 381, stating that in the United States, seven or

eight corresponding ridge characteristics are generally regarded as sufficient for identification if

they satisfy an experienced examiner.

136
contributed substantially to an erroneous identification made by 4 different

experienced examiners. In making this finding, the OIG is not suggesting that

the error could not have been avoided, however. Despite the unusual

similarities between the fingers of Daoud and Mayfield, there were differences

in appearance between LFP 17 and Mayfieid's prints that should have alerted

the examiners that an identification should not have been made. The

Laboratory's treatment of dissimilarities is addressed below in Section II.A.4 of

this chapter.

The fact that the FBI examiner found a candidate fingerprint that was so

unusually similar to LFP 17 without being an actual match demonstrates a

particular hazard associated with the use of IAFIS. IAFIS is designed to select

candidates whose prints most closely resemble the subject print. The inclusion

of Mayfield's print among the candidates selected by IAFIS reflects IAFIS

performing exactly as intended.

The Mayfield case demonstrates the potentially misleading power of

IAFIS. Working with databases containing the fingerprints of more than 47

***re,u,1 **lu, v,uuetl_ . _/u lnnnun bcpeuetLC princsj, IAFiS is designed to find

not only the source of the print (if it is in the database), but also the closest

possible non-matches. In other words, although no two people have identical

fingerprints, there are some that may be sufficiently close to confuse an

examiner dealing with a latent of imperfect clarity. An IAFIS search of a huge

database is designed to find those prints most likely to confuse an examiner.

The likelihood of encountering a misleadingly close non-match through an

IAFIS search is therefore far greater than in a comparison of a latent print with

the known prints of a suspect whose connection to a case was developed

through an investigation.

The OIG interviewed Ken Smith, a U,S. Postal Inspection Service

fingerprint examiner who served on the International Panel. Smith served for

14 years on the IAI Certification Board, which was responsible for investigating

complaints of erroneous identifications by IAI-certified examiners. Smith told

the OIG that during his tenure on the Board he encountered 25 to 30

erroneous identifications, mostly by local law enforcement agencies. Smith

said that all but one of these errors occurred in cases involving candidates

selected as a result of automated computer searches. Smith stated that the

Mayfield case, like almost all of the other erroneous identifications he has

encountered, demonstrates the need for special care in conducting

comparisons involving IAFIS candidates because of the elevated danger of

encountering a close non-match. We agree with this conclusion.

137
2. Bias from the exemplar prints (circular reasoning)

We found evidence that the LPU examiners' interpretations of some

features in LFP 17 were adjusted or influenced during the comparison phase by

reasoning "backward" from features that are visible in the Mayfieid exemplars.

This bias is sometimes referred to as "circular reasoning" and has been

described as "a premature assumption of donorship [that] leads to

transplantation of data from the 'original' [the known print] into the latent

print."lo6

Part of the evidence that circular reasoning infected the Mayfield

identification was found in the prints themselves. In this case, knowing the

true source of the latent print enabled us to determine which features were

charted as part of the identification of Mayfield that in fact were not present in

the friction ridges of the true source. We found five examples of features that

the LPU interpreted as Level 2 ridge deviations (ending ridges, dots, or

bifurcations) in identifying Mayfield as the source of LFP 17, which turned out

to correspond to no similar features in the known prints of the true source,

r% .... ...1 rill _ _ _ 1"^ A _.. _1 ....... riguIcb I/-_-I_,wniuii bnuw: (1 i/ where [he

LPU charted these features in LFP 17, (2) the corresponding features that the

LPU charted in the Mayfield exemplar, and (3) the corresponding locations in

the Daoud exemplar showing that no such features actually occurred in these

locations. 107

The OIG discussed these features in detail with Green and Wieners, and

with our three expert consultants. The OIG and its consultants concluded that

there was little or no support within LFP 17, considered without reference to

any known print, for determining that there were Level 2 ridge deviations at

these five locations. There was no evidence that Green identified these five

features as Level 2 details in his initial analysis of LFP 17, prior to seeing the

Mayfield prints. None of these five features were among the seven features in

the latent print that Green encoded for IAFIS prior to the comparison to the

Mayfield exemplars.

The Laboratory's error in relying on the five features illustrated in

Figures 7A-7C cannot be attributed to unusually confusing distortions in the

latent print that gave a strong appearance of true Level 2 detail. Rather, these

five features are all at best ambiguous or blurred in the latent print. Two of the

106 Interpol European Expert Group of Fingerprint Identification II, "Method for

Fingerprint Identification, Part 2; Detailing the method using common terminology and through

the definition and application of shared principles" ("INTERPOL Method Part 2"), available at

http: / / www.interpol, int / Public / Forensic / fingerprints/, § 8.9.1.

107 Further information on these features is provided in Appendix J.

138
features that Green interpreted as ending ridges (Points 1 1 and 8) occur at the

outer edge of the latent, which is an area in which a determination that a ridge

comes to an end can be particularly dangerous, l°s In reality, Daoud's ridges

did not end at these points, but continued beyond the edge of the latent print.

Another feature (Point 7) was also interpreted as..... ml cnaing" riag_"" - u_pl__ -L _,_u__

absence of convergence in the surrounding ridges. Ashbaugh specifically

cautions against such an interpretation:

Distinguishing between ridge endings and ridge breaks

(incompletely reproduced ridges) requires understanding that in

the case of ridge endings, the ridges on either side will fill in any

void left by the ending ridge and this directional change will be

visible on the ridge path. Unless visible in both prints [the latent

and the exemplar], ridge breaks should be treated as if the ridge is

continual, lo9

The other two features (Points 1 and 14) are at best very unclear and the OIG

concluded that they would never have been identified as Level 2 details with

confidence unless they had' ........... -' _- _'-- by

prints during the comparison phase.

Based on these facts and the opinions of its consultants, the OIG

concluded that the LPU examiners' reliance on these particular features was

influenced by "circular reasoning" that occurred after the Mayfield prints were

compared to LFP 17. This reverse reasoning appears to have been an instance

of loss of objectivity that Ashbaugh warned against:

During forensic comparison one must maintain an objective state

of mind to guard against seeing things that are not there. For

example, during the comparison process, examining the clear

inked known impression prior to carrying out an analysis of an

unknown print could cause the brain to jump to a conclusion and

see details in the murky unknown ridge structures that may not

actually be there, il°

We concluded that the other similarities in the prints, described in the

preceding section, which stemmed from the general similarity in the

constellation of Level 2 details between Mayfield and Daoud, caused Green to

begin to see additional similarities based on features that were not in fact

108 See, e.g., Interpol Method Part 2 at § 8.4.

i09 Ashbaugh, pp. 132-133.

110 Ashbaugh, p. 105.

139
FIGURE 7A 

Level 2 Features Used To Identifg Ma-eld Having No Source in the 

Daoud Exemplars (Do Not Exist) (LFP 17) 
FIGURE 7B 

Level 2 Features Used To Identify Mayfield Having No Source in the 

Daoud Exemplars (Do Not Exist) (Mayfield Exemplar) 

'F , - , q . , : .. . - -;". I... " 
FIGURE 7C 

Level 2 Features Used To Identify Mafleld Having No Source in the 

Daoud Exemplars (Do Not Exist) (Daoud Exemplar) 
[OPENI

143
present. 111 In this way, the number of Level 2 similarities that Green was able

to chart increased from 10 to 15.112

There are other, more subtle indications that Green permitted his review

of the Mayfieid prints to influence his interpretation of L_ 1[ in a process of

reverse reasoning. The best available contemporaneous evidence of Green's

unbiased analysis of the LFP 17 is the way he coded the print for the IAFIS

search, as shown in Figure 8A. At that time, he had never seen the Mayfield

exemplar and could not be influenced by it. Green encoded seven Level 2

details for the IAFIS search: four points as ending ridges and three points as

bifurcations. After comparing the Mayfield exemplar, Green changed his

interpretation of three points from bifurcations to ending ridges, as illustrated

in Figure 8B. He also changed his interpretation of another point from an

ending ridge to a bifurcation, and moved the location of yet another point (an

ending ridge) one ridge down. In other words, after seeing the Mayfield prints,

Green changed the interpretation of five of his original seven points in type or

location, with the result that the five points were reinterpreted to be more

consistent with the Mayfield exemplar.

The bias that this reinterpretation introduced can be appreciated by

comparing Green's original coding with the Daoud exemplars. For four of the

five points that Green changed as to type or location after seeing the Mayfield

prints, it turned out that his original interpretation was correct (i.e., was

consistent with the Daoud exemplar), as shown in Figure 8C. For those

points, Green's original analysis, still unbiased by any comparison to Mayfield,

was in fact more accurate than the adjusted interpretation he made after

seeing the Mayfield exemplars. 113

111 Gregoire Michaud, the Latent Print Unit Program Coordinator for the Michigan State

Police, served oh the International Panel and described this process as "confirmation bias" or

"context effect," resulting from the "unique similarity" between some Level 2 details in LFP 17

and the Mayfield prints that induced the examiner to expect to find additional matching

details. See Gregoire Michaud, "Concept Paper for an International Review of the Madrid

Bombing Latent Fingerprint" (unpublished), 2004, at 2, citing "Intuitive Judgment and the

Evaluation of Evidence," commissioned by the National Academy of Science's Committee on

Techniques for the Enhancement of Human Performance, Washington, D.C. 1987, and Saks, et

al., "Context Effects in Forensic Science," Science & Justice, Vol. 43, No. 2, 2003. Ron Smith,

another member of the International Panel, described the same process as a "mindset" in

which the initially detected similarities led to an unintentionally incorrect interpretation of

additional features as matching. Ron Smith, "Report of Case Review, Madrid, Spain Bombing

FBI Latent Print Examination" (unpublished), 2004, p. 2; see also Wertheim, p. 6, describing

the same "mind-set" phenomenon.

112 We found further evidence of bias from the exemplar prints influencing the

examination in the examiners' utilization of Level 3 detail to support the Mayfield identification,

a topic addressed in the next section.

113 Further detail regarding the way points were originally coded for IAFIS and

subsequently reinterpreted may be found in Appendix I.

144
Green's description of his examination of LFP 17, given during his

interview with the OIG, provided further support for the conclusion that Green

allowed the Mayfieid exemplar prints to color his interpretation of the latent

print through a process of circular reasoning. Green stated that during the

comparison phase, his practice was to ignore the way he encoded the latent

print for IAFIS and to reconsider the latent print from a new perspective. When

asked whether it was unusual to change the interpretation of points during the

comparison phase, Green stated that he does not even consider the way he

originally encoded a latent print at this stage of an examination. This

approach appears to be at odds with one of the primary purposes of the

analysis phase of ACE-V: to interpret the latent print before the comparison

phase in order to avoid reasoning backward from the known print. By

discarding at least some of the information developed during the original

analysis, Green was able to modify his initial interpretation of the latent print

to match the exemplar without ever asking or answering the question of why

his initial interpretation was wrong. As discussed above, Green made several

such modifications in his interpretation of the location and type of Level 2

details in order to find a similarity to Mayfield, and also apparently added at

1_----,' £..:'-.-- "T 1 _ ...,31_.¢- _ 21_ 1-,'-- _.L" T 't"_'_'r"_ ,"-7 _l_J__ "1_ J,1 _J. ,C_ _A.

xcetbLnvc _cvc, -'.U_Let,Xbto mb intei-pretation ul _r r 1/, u_t_tliN ti'Xi:itin tacL were

not present. The OIG concluded that these errors were the result of bias

resulting from circular reasoning from the Mayfield exemplars. 114

There is nothing in any Standard Operating Procedure (SOP) or other

policy or standard applicable to the FBI Laboratory that prohibits an examiner

from revising his initial analysis regarding the type or location of a feature in a

latent print to match what he finds in an exemplar more closely, but the

hazards of such a reversible approach to the analysis phase are well

demonstrated in this case. Indeed, in the absence of any requirement to

document the initial, pre'comparison analysis of the latent print and to record

what is seen at that time, it is impossible to know with certainty which features

in the latent were clear to the examiner before the comparison phase and

which features only became apparent to the examiner after being suggested by

the exemplar prints. The IAFIS encoding, if it occurs, is at best an incomplete

record of what features are perceived because the examiner typically will not

encode every Level 2 feature in a latent print. Under these circumstances, with

114Under LPUpolicy in effect at the time, written supervisory approval was required

prior to reporting any identification based on fewer than 12 points of Level 2 detail. By finding

15 Level 2 points of similarity, Green thus potentially eliminated an additional level of review

beyond the verification required for all identifications. The OIG recognized, however, that Unit

Chief Wieners performed an informal review of the identification after it was declared, and

concurred with the result. Unit Chief Wieners likely would have been the supervisor who

would have been required to approve the identification under the "12-point rule." Accordingly,

the OIG did not conclude that additional review pursuant to the "12-point rule" would have

prevented the error.

145
FIGURE 8A 

Original IAFIS Encoding (LFP 17) 
FIGURE 8B 

Revised Interpretation of IAF'IS Points Following Mapfield 

Comparison (Mayfield Exemplar) 

* E* 

= Change in type (e.g., E to B or B to E) 

+= Moved one ridge down 
FIGURE 8C 

Actual Feature Types in Daoud Exemplar 
[OPEN 1

149
an incomplete record of the analysis, over time the examiner may lose track of

which came first, features he saw in the latent or features suggested by the

exemplar.

Of course, Mayfieid's print was not the only print selected as a candidate

as a result of the IAFIS search. It was only after Mayfield's print became a

serious candidate for identification that this process of reverse reasoning began

to influence the examiner. The initial interest in the Mayfield print was

attributable to close similarities with LFP 17, as described in the preceding

section. The OIG concluded that once the similarity was noticed, the process of

circular reasoning began to infect the examiner's mental process, particularly

in the absence of standards or safeguards to require the examiner to keep

distinct which features were seen in the latent during the analysis and which

were only suggested during the comparison.

3. Faulty reliance on Level 3 Detail

The OIG found that the purported agreement of Level 3 details (pores,

incipient dots, and ridge edge shapes) between LFP 17 and the Mayfieid

exemplar fingerprint was an important basis for the FBI Laboratory's

identification of Mayfield. Supervisor Green and Unit Chief Wieners both

described their reliance on Level 3 details in interviews with the OIG. Green

marked five areas of Level 3 agreement with yellow ovals in the March 22

Charted Enlargements (Figures 2A and 2B) prepared shortly after the

identification was declared. Wieners told the OIG that one of these Level 3

features, interpreted as a pair of incipient dots and marked as the upper

rightmost of the five circled features, was a "very persuasive" point within the

identification. According to another LPU examiner interviewed by the OIG,

Green told him at the time of the identification that it was necessary to

consider matching Level 3 details to make the identification.

After the SNP questioned the identification in its April 13 Negativo

Report, Green prepared new charted enlargements that specifically cited a total

of seven different matching Level 3 details in support of the identifications. As

noted above, when Wieners made his presentation to the SNP on April 21, he

gave great emphasis to the FBI's reliance on Level 3 details. According to

AUSA 2's notes regarding a conversation with Wieners after the April 21

meeting, Wieners told her that the SNP's failure to consider Level 3 detail

reflected a lower depth of analysis and level of expertise. The FBI's reliance on

Level 3 detail was explicitly cited in the Werder Affidavit filed in support of the

material witness warrant in connection with explaining the difference of

opinion between the FBI and the SNP.

Wieners told the OIG that he now believes that "Level 3 is what betrayed

us here." The OIG reviewed the relevant prints with the FBI examiners and the

150
OIG's consultants, and determined that none of the Level 3 features utilized by

the FBI examiners to identify Mayfield has any correspondence to any point in

the Daoud exemplar prints. In other words, it appears that the examiners were

confused not by any confirmable Level 3 similarity between the fingers of

Mayfieid and Daoud, but rather by distortions or variations in appearance

within the latent print that the examiners found to correlate with features in

the Mayfield exemplar. Thus, the error in the Level 3 portion of the

examination was fundamentally different from the error that occurred with

respect to Level 2. Unlike the case with Level 2 details (in which there were as

many as 10 roughly similar minutiae present in both the Mayfield print and the

Daoud print), none of the Level 3 details cited by the FBI can be attributed to

an unusual coincidence of similarity between Mayfield and Daoud.

From a review of the available prints, review of literature regarding Level

3, and consultation with experts, the OIG has determined that there were

several indications available to the FBI at the time that the purported Level 3

similarities were not reliable support for the identification. One example is the

feature interpreted as a pair of incipient dots in LFP 17 (the upper rightmost

yeuow-_lrcleu --" .... "--'--' ieacure_.... "..... 2A) in r 1g-are , which Wieners described as a very

persuasive feature in the comparison. Green and Wieners found a

corresponding feature on Mayfield's rolled fingerprint taken in connection with

his military service. That exemplar, however, was not the only image of

Mayfield's fingerprints available to the FBI. The same set of fingerprints

included a "fiat" impression of the finger made without rolling. The "incipient

dots" do not appear in that version of Mayfield's known prints, made the very

same day as the rolled prints. The dots also do not appear in the fingerprints

taken from Mayfield in connection with his criminal arrest as a teenager in

1985. Thus, a feature that the FBI Laboratory considered "very persuasive" did

not in fact appear in most of the known prints of Mayfield. Moreover, even in

the one exemplar print in which the dots do appear, they are significantly

further away from the nearest Level 2 feature (Point 5 in Figures 2A and 2B) in

the latent print than in the exemplar, calling into question whether the dots are

actually in agreement.

Several of the Level 3 details cited by the FBI Laboratory as being in

agreement were described as pores or groups of pores. The non-FBI experts

that the OIG interviewed, including two members of the International Panel

and the OIG's experts, disputed that there was in fact a similarity of

appearance in size and shape between these features in the latent print and

the relevant exemplars. Moreover, the appearance of a pore along a ridge in a

latent print corresponding to another pore in an exemplar has relatively little

individualizing power. Every ridge is made up of a sequence of ridge units,

each of which contains a pore. Thus, unlike Level 2 minutiae, pores occur on

all ridge units throughout the ridge formations in the friction skin. In addition,

because of the variability with which pore sizes and shapes are reproduced in

151
both latent and inked prints, some fingerprint examiners caution against any

reliance on the shape or size of pores. 115

Several of the examiners interviewed by the OIG, including LPU Unit

Chief Meagher, the OIG consultants, and Ron Smith (a member of the

International Panel), even questioned whether the clarity of LFP 17 was

sufficient to support any reliance on Level 3 detail in this image. LFP 17 bears

little or no resemblance in clarity to the examples shown in Ashbaugh to

illustrate Level 3 detail. 116 FBI LPU Unit Chief Meagher, who participated in

the May 23-24 reexamination of the print and ultimately identified the print to

Daoud in June, told the OIG that the quality of LFP 17 was a 2 or 3 on a scale

of 10, and that he did not find usable Level 3 detail in the print.

Another issue raised by the FBI's reliance on selected Level 3 details is

the question of "fair reasoning." The INTERPOL "Method for Fingerprint

Identification" describes this issue as follows:

As a rule the quality of the difference (e.g. explained by distortion)

_IIULIICInot be Kiigiieitll_tlltll_tlU_liityofthe _iiniittiiLi_b. . . in

other words [w]hen a dissimilarity is "explained away," by arguing

that the information is too bad and not valid, then similar

information with equal quality should also not be regarded as

valid ....

A good way to practise fair reasoning is to invert the argument or

to "play the advocate of the devil"; Or in practise ask: what if it was

the other way round? . . .

One finds a similarity in a blurred area and there could be an

inclination to mark it; if there appears to be a dissimilarity in the

same area would one regard this to be genuine as well? 117

It does not appear that FBI examiners applied "fair reasoning" in the

comparison of Level 3 detail during the Mayfield identification. There are

possible pores, ridge edge shapes, and small between-ridge details in many

1is See, e.g., Doede Rijpkema, unpublished presentation to the IAI Educational

Conference in Las Vegas, 2002 (supplied by Dusty Clark).

116 See, e.g., Ashbaugh, p. 151, Figures 5.1 A and B (showing 901 pores with much

greater clarity than in LFP 17); p. 155, Figure 5.2A and B (distinguishing bifurcations in the

same location in different prints by relative pore positioning); p. 159, Figures 5.4-5.6

(illustrating identification of partial palm print from telephone extension wire having clear

impression of ridge edges and numerous pores).

117 INTERPOL Method Part 2 §§ 8.7.1 and 8.8.

152
locations throughout LFP 17. Some of these shapes arguably correspond with

shapes in the Mayfield known prints; they were marked as similarities. Many

other shapes in the latent print do not correspond to the Mayfield known

prints, but there is no evidence that these differences in appearance were

treated as important enough to require explanation. They were apparently

attributed to the variability in appearance that occurs in any transfer of detail

from 3-dimensional friction ridges into a 2-dimensional latent print under

uncontrolled conditions. This selective "cherry-picking" of only those Level 3

details that seemed to support the identification, while dismissing all Level 3

differences elsewhere in the print, falls short of "fair reasoning." Green told the

OIG that he did not try to identify usable Level 3 detail in LFP 17 until after he

began comparing the print to the Mayfield exemplar. Again, it appears that

Green reasoned in a circular manner, using detail in the Mayfield known prints

to determine which pores, edge shapes, and incipient dots in the latent print

were in fact reliable detail rather than distortion.

In Chapter Three we described the debate within the fingerprint

discipline regarding the reliability of Level 3 detail. We believe that the

"RK -- _ _.£'-"-- 1 ....1 ........... .'11 1_ _ ........ ,L _ . _ _ . t 1 _ J •

CO[lSl£1era[lOrl lvl_yn_lu _llut win u_ mi uupult_int case study for in that debate.

It is beyond the scope of the OIG's investigation to weigh in on the debate

regarding the circumstances under which Level 3 detail should be utilized to

effect an identification. The OIG did find, however, that in this case FBI

examiners Green and Wieners relied on features in LFP 17 as Level 3 detail

that turned out to be details which have no significant correspondence with

any features in the known prints of the true source, Daoud.

4. Inadequate explanations for differences in appearance

Several members of the International Panel found that the FBI examiners

had ignored, overlooked, or disregarded a significant number of differences in

appearance between LFP 17 and the Mayfield prints. 118 The individual

members of the Panel did not explain these findings in more than a summary

fashion in their reports. During their interviews with the OIG, Green and

Wieners disputed this finding, stating that they did notice several differences in

appearance but believed them all to be explainable. In this section, the OIG

examines, in detail, the differences in appearance and the explanations that

the FBI Laboratory posited for them. The primary Level 1 and Level 2

differences in appearance that the OIG was able to identify with the help of its

118 See, e.g., Michaud, p. 3; Ron Smith, p. 3; Kenneth O. Smith, "International Expert

Review of the Madrid Bombing Latent Fingerprint Examination by the FBI Latent Print Unit,"

(unpublished), 2004, p. 1.

153
consultants and other examiners who were interviewed are described in Table 1

and illustrated in Figures 9A-9F. 110

In reviewing the questions of differences of appearance and explanations,

the OiG's investigation was hampered by the fact that there was no

contemporaneous written record of what differences the examiners perceived

and what explanations, if any, were posited for them in March 2004 when the

identification was made. As previously noted, no FBI policies or procedures

required the documentation of this aspect of the comparison. Consequently,

the OIG was required to rely solely on the recollection of the participants,

which were by that time informed of the fact that an error had occurred.

In reviewing the adequacy of the explanations posited by the Laboratory

examiners, the OIG took into account the degree of certainty which the FBI

Laboratory and other forensic laboratories require for their identifications. As

previously explained, latent fingerprint identifications are not declared unless

the examiner has crossed a threshold of certainty that the latent and known

prints originated from the same source, to the exclusion of all others. The

SIlTK_I_A _F _ llff_4-1-. ^_.1 _1 ......... " ..... m ,, ,_l.no, iv,_,,_uuiuay is u,l_ttulVUCUi in rejecting "possible" or ":probable"

identifications as outside the acceptable limits of the discipline. Consistent

with this philosophy, Green approved of language in the affidavit supporting

the material witness warrant for Mayfield describing his conclusion as a "100%

identification."

As previously explained, the FBI and other forensic laboratories utilize a

"one discrepancy rule" in which a single difference in appearance that cannot

be explained must preclude the examiner from declaring an identification.

Although,the SWGFAST Standards that governed the FBI's identification in this

case are not explicit regarding the degree of certainty that the examiner must

have in a proposed explanation, the certainty that the discipline requires for its

identifications cannot be provided unless the examiner has achieved equivalent

certainty with respect to the validity of the explanations offered for differences

in appearance between a latent and a known fingerprint.

119 The discussion in this section does not address dissimilarities in Level 3 detail. As

previously noted, there can be substantial variability of appearance in Level 3 detail from one

impression to another, even when the prints are made by the same person. Examiners are

generally tolerant of many differences in appearance in Level 3 details and are more willing to

explicitly or implicitly explain them as distortions. Although it is possible to imagine

circumstances under which there would be adequate clarity in both the latent and exemplar

prints for an examiner to rely on Level 3 differences to declare an exclusion, this is apparently

an extremely unusual situation. In the Mayfield case, there were so many unexplained

differences in Level 1 and Level 2 details that a discussion of Level 3 differences would be

superfluous.

154
[BLANK PAGE]

155
FIGURE 9A 

DifEerences in Appearance Between LFP 17 and Mayfield Exemplar 

(See Table 1) 
FIGURE 9B 

DifEerences In Appearance Between LF'P 17 and Mayfield Exemplar 

(See Table 1) 
FIGURE 9C 

DifEerences in Appearance Between LFP 17 and Mayfield Exemplar 

(See Table 1) 
FIGURE 9D 

Differences in Appearance Between LFP 17 and Mayfield Exemplar 

(See Table 1) 

. I., _ . . 

I : , 

. . 

rqS, 1 
FIGURE 9E 

DiEerences in Appearance Between LFP 17 and Mayfield Exemplar 

(We Table 1) 
FIGURE 9F 

Differences in Appearance Between LFP 17 and Mayfield Exemplar 

(See Table 1) 
(SEE FIGURES 9A-9F)

A Level 2 details in upper left portion of print cannot be correlated to Mayfield exemplars.

Level 2 details in upper right/center are not in agreement in alignment and spacing and are off B

by one ridge count from core.

C Enclosure in Mayfield exemplar cannot be seen in latent.

D Ridge ending at point 2 is downward curving in latent, upward in Mayfield exemplar.

E Ridge flow in SE portion of center of LFP is flatter in Mayfield exemplar than in LFP 17.

F Ridge flow in lower joint is cupped in LFP 17, mounded in Mayfield exemplar.

G Ridges around point 8 are parallel in LFP 17, taper together in Mayfield exemplar.

H Level 2 detail in latent on ridge above Point 14, not present in Mayfield exemplar.

I Level 2 detail NW of Point 3 in latent, not present in Mayfield exemplar.

Distance from Point 2 to Point 3 is much greater on latent (1.52 mm) than on Mayfield exemplar J

(1.09 mm).

K Distance from Point 14 to Point 4 is much greater on latent (2.74 ram) than on Mayfield

exemplar (2.34 ram).

Distance from Point 5 to Point 6 is much greater on latent (3.28 mm) than on Mayfield exemplar L

(3.02 mm).

M Distance from Point 8 to Point 6 is much greater in latent (3.56 mm) than in Mayfield exemplar

(3.0 mm).

162
I I Distance from Point 2 to Point 6 (on N-S axis) is N Mayfield exemplar (5.13 ram). Compare Difference O - opposite distortion along similar axis. larger on LFP 17 (5.28 mm) than on the

I

[ I Distance from Point 2 to Point 14 (on N-S axis) is smaUer on LFP 17 (3.61 mm) than on the

O Mayfield exemplar (3.78 ram). Compare Difference N - opposite distortion along similar axis.

Numbered point references correspond to points marked in March 22 Charted Enlargements

(Figures 2A-2B)

163
However, the information available to the examiners regarding the

validity of their explanation for this difference was contradictory. Although the

gap in detail between the main body of the print and the upper left could be

consistent with a separate touch, other information suggested that both

portions were part of the same print. To begin with, the Level i ridge flow was

consistent across the gap and over the top of the print, suggesting that the

detail in the upper left was part of a single print. Another FBI examiner who

looked at LFP 17 informally at the time of the original identification in March

2004 told the OIG that he was surprised to hear the "double touch"

explanation because the print looked like a single print, with consistent ridge

flow on both sides of the gap. Ken Smith, a U.S. Postal Inspection Service

examiner who served as a member of the International Panel, showed the OIG

how the upper left area of the print could be connected to the main body of the

print by following the sequence of ridges up from the center of the print to the

upper right, and then following the flow of the ridges leftward into the problem

area. Smith said that this analysis of LFP 17, together with recognition of

other dissimilarities, should have led the FBI Laboratory to declare an

exclusion of Mayfield within a short time after beginning a side-by-side

/"_T/"_ ....... 1J.-_J- "lr'%___L-- /""t1_1_ " "1 1

comparison. _JXU_uxx_ulLaxxt _Ju_Ly _ - xm_ stated that it is -'-- also possiaie to trace

the sequence of ridges from the main body of the print into the upper left area

along the left edge of the print, giving more basis to suspect that the upper left

area was not a separate touch.

Ashbaugh devotes considerable discussion to the problem of double taps"

Double taps are a very common distortion with flexible substrates

[such as plastic bags]. A double tap happens when a single print

is deposited with two distinct and separate applications of

pressure. The time between the applications or touches of

pressure can be as little as a split second. The most common

result is two areas of friction ridge print separated by a smear or

smudge. At times the two separate areas of ridge structure may

overlap a few millimeters and, if the ridge ends align, the print will

appear normal but will actually be distorted in size and/or shape.

The telltale sign for this type of distortion is where the two prints

meet. All the ridges in the transition area usually do not join

smoothly and thick areas of friction ridge will be evident, possibly

with the occasional ridge end protruding from the side of a ridge.

Another obvious indicator would be finding the relative position of

the major ridge path deviations to be out of spatial sync or even

missing when compared to a known exemplar print.

164
Crossovers, misaligned ridges, extra thick ridges, and protruding

ridge ends are common features in double taps. These types of

features are called red flags .... 12o

[D]eposition pressure becomes important.., when there is

confusion as to whether one or more prints is involved, possibly a

double tap, in the overall makeup of the developed print. It is very

difficult to deposit two prints with the same deposition pressure.

An analysis of deposition pressure along all the friction ridge paths

of this type of print may assist an identification specialist in

separating the two prints, even when they are from the same donor

and were deposited a split second apart. TM

In light of this discussion, it is clear that the information supporting the FBI's

double touch explanation was limited and required the examiners to believe a

remarkable set of coincidences. The only "red flag" that any examiner could

identify for the OIG indicating that a separate touch had occurred was the

"gap" in detail between the upper left portion of the print and the center. The

_xetniil_ers uiu nok u_crl -" -' -1-- - "- - uc any crossovers, rmsangne " " " " ' " ' a rlages, or protruding

ridge ends in LFP 17 that would signal a double touch. The FBI examiners also

did not identify any difference in deposition pressure between the upper left

and the rest of the print to suggest a second touch. An SNP Laboratory

Supervisor told the OIG that the consistency in deposition pressure between

the upper left portion of the print and the rest of LFP 17 caused one team of

SNP examiners to reject the FBI's "double touch" explanation.

We are not suggesting that the "double touch" explanation was

impossible, but rather that there was, at best, conflicting evidence for and

against it. Acceptance of the double touch explanation required the FBI to

believe that Mayfield touched the bag a second time with a portion of his finger

(such as the extreme tip) that was not recorded in any inked print but that

lined up consistently in ridge flow and deposition pressure with the image left

in the other touch. Alternatively, to acceptthe hypothesis of a touch by a

second person, the FBI had to believe that the second donor coincidentally left

a fragment of a print having a ridge flow consistent with the main part of the

print made by Mayfield, with no detectable difference in deposition pressure, no

crossover ridges, no protruding ridge ends, and no extra thick ridges. Either

scenario assumes an extraordinary set of coincidences. There was no basis for

the examiners to be certain that these coincidences, in fact, occurred in light of

the alternate explanation that Mayfield was not the source of LFP 17.

120Ashbaugh, p. 114.

121Id., p. 125.

165
Moreover, the extremely stringent standard of certainty that the FBI

Laboratory and others in the latent print identification discipline claim for their

identifications must, by implication, apply to any explanation that the

examiner relies upon to justify a difference in appearance, particularly a

difference as obvious and significant as occurred in the upper left portion of

LFP 17. The OIG found that this threshold of certainty was not satisfied in the

Mayfield case. In light of the conflicting information regarding whether a

double touch occurred, an "inconclusive" determination would have been more

appropriate. 122

b. Other differences

There were many other differences in appearance between LFP 17 and

the Mayfield exemplars identified to the OIG by its consultants and by other

examiners interviewed by the OIG. These differences were generally more

subtle than the obvious inconsistency between the upper left portions of the

prints as discussed above. The consultants and other examiners attached

varying significance to each individual difference in appearance between LFP

lr-/ .... .-1 "R K ____'" _ 1 _1

_i mlu the iv1_y_i_lu exemplars, but they agreed that the cumulative impact of

the differences should have been sufficient to preclude the identification of

Mayfield. A few of these differences are discussed in detail in this section.

During his interview, the only difference in appearance that Green

initially remembered being concerned with at the time he identified LFP 17 to

Mayfield was the upper left area discussed in the previous section. When the

OIG shared a list of other differences with Green, his recollection was generally

vague as ,to (1) whether he perceived the differences in appearance at the time

of the initial identification; (2) if so, what explanation he adopted at the time to

justify the difference; and (3) what, if anything, he did at thetime to attempt to

confirm the validity of any such explanation. Wieners' recollection of the

differences and the explanations adopted for them also was incomplete. As

noted above, FBI policies required no documentation of perceived differences

and explanations as part of the identification. As a result, we are unable to

122 The FBI examiners were not alone in this error. The court-appointed examiner,

Kenneth Moses, perceived a break in the ridge flow between the upper left area and the main

body of LFP 17 during the analysis phase of his examination, and stated he "could not

immediately determine if [these areas] were from the same finger." Moses, Anatomy of an

Error, p. 5. Later, during the comparison phase, Moses found "two prominent minutiae [in the

upper left of LFP 17] that were nowhere to be found in the known prints [of Mayfield]. I

concluded that this patch of ridges might belong to a different finger or another person." Id. at

6. Moses thus appears to have jumped from an admission that he was unsure of whether the

upper left was a separate fingerprint to a conclusion that it was, solely on the basis that it was

not in agreement with Mayfield's known prints. Again, absent certainty that the upper left was

a separate print made by a different finger or person, Moses should have been precluded by the

one discrepancy rule from declaring an identification.

166
determine with certainty whether the potential explanations for differences that

were provided during the interviews of Green and Wieners were in fact those

utilized at the time of the Mayfield identification, or whether some had been

reconstructed in hindsight.

i. Differences in ridge flow

The OIG consultants identified several differences in the shape of ridges

between LFP 17 and the Mayfield exemplars that they concluded should have

alerted the FBI examiners to a problem with the identification.

For example, there is a difference in appearance in the ridges at the very

bottom of the print (Difference F in Table 1 and Figures 9A-9B). These ridges

appear to be associated with the second joint of the finger, below the crease. In

LFP 17, these ridges curve upward forming a _cupped" shape, while in the

Mayfield exemplar these ridges are fiat or slightly mounded. This difference

was a major focus of the SNP in questioning the FBI's identification of Mayfield.

Green and Wieners stated that the large gap between the lower portion and the

main body of the latent print made it difficult to be certain whether that area

could be matched to any part of Mayfield's finger and that the quality of detail

in this portion of the latent print was poor.

The consultants utilized by the OIG had varying opinions regarding

whether this difference should haveprecluded the FBI from identifying

Mayfield. Clark and Grimm found the difference in ridge flow in this area to be

an important dissimilarity, although Grimm observed that When the finger is

bent, the reproduction of ridges from a joint below the crease will be greatly

affected and the examiner may not be sure what part of the finger he is seeing.

Vanderkolk did not consider this area of the latent to be an unexplainable

dissimilarity due to the lack of clarity in the latent, and pointed out that this

portion of LFP 17 also lacked any strong details supporting the identification of

Daoud.

Another difference in ridge flow occurs in the southwest portion of the

main body of the latent print (Difference G on Table 1 and Figures 9A-9B}.

This difference relates to the behavior of adjacent ridges on either side of the

ending ridge that Green originally marked as Point 8 on his March 22 Charted

Enlargements (Figures 2A and 2B). In the latent print, the adjacent ridges

continue in paths parallel to the ridge that ends. In the Mayfield exemplar, the

adjacent ridges converge sharply together to fill the space vacated by the

ending ridge. The consultants considered this to be a significant unexplained

167
difference. Green told the OIG, however, that he considered the adjacent ridges

to be sufficiently similar to support the identification. 123

ii. Differences in distances between points

The OIG consultants and other examiners interviewed by the OIG

pointed out several differences in appearance that related to the distance

between Level 2 minutiae originally marked as similarities by Green. These

differences are shown graphically as Differences J-O on Figures 9C-9F, and are

described in detail on Table 1. For example, Dusty Clark measured distance J

on LFP 17 as 1.52 millimeters; he measured the distance between the

corresponding points in the Mayfield known prints as 1.09 millimeters, or 28

percent less. Clark reported similar inconsistencies in distance between

several other points that Green marked as similarities. (See Figures 9E and 9F

and Table 1).

Green told the OIG that he noticed some of these differences in distance

at the time of the identification, but that he attributed them to slippage or

twisting that occurred when the print was deposited. Green pointed out

smudging along the right side of the print that he stated could have been an

indication of slippage during deposition.

The examiners who served as consultants to the OIG stated that these

differences in distance between points constituted important inconsistencies

between the prints that should have alerted the FBI examiners of problems

with the identification. The consultants agreed that friction skin does not

stretch or flex over the small distances between these points to a degree

sufficient to explain these differences in distance. More significantly, the

differences in distance were not consistent across the print. For example, the

distance was larger in the latent in one set of north-south points (Difference N

in Figures 9E and F), and smaller in the latent for another set of points

oriented in the same general north-south direction (Difference O in Figures 9E

and 9F). The OIG consultants stated that such differences could not be

adequately explained by slippage or twisting. In particular, John Vanderkolk

stated that he found no "red flags" to indicate significant twisting or slippage

during the deposition of the print and that the consistent spacing of furrows

throughout the latent print suggested the absence of such twisting or slippage.

123Two other differences in ridge flow are described in Table 1 and shown in Figures

9A-9B (Differences D and E).

168
iii. Cumulative impact of differences

LPU Unit Chief Meagher told the OIG that when he reviewed the

identification, he found more areas of disagreement that required explanation

than high-quality characteristics in agreement, and that the examiners' failure

to recognize the cumulative impact of these differences was a major cause of

the error. In an e-mail written a few months after the error was discovered,

Meagher wrote:

Every comparison.., will have a varying degree of qualitative issues.

Each examiner must assess when too much compensation is being given

for too many dissimilarities. Most examiners err on the side of caution

and will not make the call as soon as three or more dissimilarities exist.

This "rule of thumb" is not formalized in any FBI SOP or SWGFAST

standard. Other examiners we interviewed were not familiar with such a rule.

Nevertheless, Meagher's e-mail highlights the failure of the examiners in the

Mayfield matter to consider the cumulative impact of the differences between

the prints. 12_,

The OIG concluded that the FBI examiners did not exercise this level of

caution with respect to their treatment of the differences between LFP 17 and

the Mayfield exemplars. The explanations posited for the differences, while

individually plausible, cumulatively required too many rationalizations. These

explanations did not have sufficient known support within the print, the

substrate, or the crime scene to support the degree of certainty demanded for a

latent fingerprint identification.

124 Ashbaugh makes the following observation relevant to this point:

[I]f each area of friction ridge detail being compared requires justification for why

the formation appears slightly different or why it is not spatially correct, be

cautious, one may be talking oneself into agreement that is not really there.

Small discrepancies appear in all prints. Most have a rational explanation

based on a distortion during deposition, in the substrate, or in the development

medium. However, when discrepancies appear at each turn in the ridge path,

ensure the explanation for the differences is rational and based in physical fact.

One should be able to point to something physical in the print, substrate or

crime scene to defend one's position, otherwise the explanation may be that the

print is from another donor.

Ashbaugh, pp. 146-147.

169
5. Failure to assess the poor quality of similarities

All of the latent fingerprint experts consulted by the OIG agreed that the

FBI Laboratory examiners failed to assess the poor quality of the similarities

that were used to justify the Mayfieid identification. As noted above, _'quaiity"

is equated with "clarity" in the SWGFAST Methodology that the Laboratory LPU

incorporated into its Examination SOPs. Clarity is sometimes equated with the

ability to discern and utilize Level 3 detail in declaring a match, but clarity can

affect the examiner's assessment of agreement at all three levels of detail. In

this case, the imperfect clarity of LFP 17 limited the ability of the examiners to

find strong agreement in both Level 2 and Level 3 details.

As previously explained, agreement among Level 2 ridge deviations is

assessed according to several dimensions, including the type, location,

orientation of the points, and their relationship to other features. In this case,

the examiners were, in many cases, unable to determine the correcttype

(e.g., bifurcation versus ending ridge) of most Level 2 features accurately.

Shortly after making the original identification, Green charted 15 Level 2

minutiae as similarities in the March 22 Charted Enlargements (Figures 2A

and 2B). He also described his interpretations of these points in a

memorandum he prepared for use by Wieners at the April 21 meeting with the

SNP in Madrid (Appendix B). The subsequent identification of Daoud enabled

the OIG to check the accuracy of the Laboratory's initial interpretation of the

'_type" of these 15 minutiae. Table 2 summarizes the results of this review.

Of the 15 Level 2 minutiae initially used to identify Mayfield, 5 did not, in

fact, exist at all, but rather were distortions misinterpreted as ridge deviations

(see Section II.A.2 of this chapter). Of the remaining 10 minutiae, comparison

with the Daoud exemplars shows that the LPU correctly identified only 3 of

them as to type (bifurcation versus ending ridge) when it declared the Mayfield

identification. Indeed, as shown in Table 2, Green changed his interpretation

of some of these points between the time he encoded the print for IAFIS and the

time he compared the print with Mayfield's exemplar. Green was able to make

such a change because the lack of clarity in the latent print permitted either

interpretation of these points.

Thus, even assuming the 10 minutiae were in agreement as to location,

orientation, and relative positioning (including intervening ridge counts), Green

was unable to accurately establish agreement between most of them as to type.

The examiners consulted by the OIG stated that agreement of points in which

the type of point is unknown has less individualizing power than an agreement

of features that are unequivocally of the same type. These consultants also

agreed that many of the points utilized by Green to support the identification

suffered from this shortcoming (ambiguity as to feature type), and that

170
TABLE 2 - Point "Types" in Mayfield Misidentification

Feature "Type" encoded "_ype"" 1den m_u True "type" "_'^_

No. for IAFIS in Mayfield ID(1) (Daoud ID)(2)

1 Not encoded Bifurcation No ridge deviation at this location

2 Ending Ridge Ending Ridge Bifurcation

3 Ending Ridge Ending Ridge Bifurcation

4 Bifurcation Ending Ridge Bifurcation

5 Bifurcation Ending Ridge Ending Ridge

6 Not encoded Dot Top part of enclosure

7 Not encoded Ending Ridge No ridge deviation at this location

8 Not encoded Dot or Short Ridge No ridge deviation at this location

9 Not encoded Ending Ridge Bifurcation

10 Not encoded Ending Ridge Ending Ridge

11 Not encoded Ending Ridge No ridge deviation at this location

12 Bifurcation Ending Ridge Bifurcation

13 Ending Ridge Bifurcation Ending Ridge

14 Not encoded Bifurcation No ridge deviation at this location

15 Not encoded Bifurcation Bifurcation

(1) Derived from written descriptions presented by FBI to SNP on April 21 [App.B).

(2) Derived from examination of Daoud exemplars.

171
accordingly, the "quality" of the agreement was inadequate to support the

conclusion of identification.

6. Failure to reexamine LFP 17 following the April 13

Negativo Report

The April 13 Negativo Report provided an early warning to the FBI

Laboratory that it had erred in identifying Mayfield and a corresponding

opportunity to take a fresh look at the Mayfield identification. Although the

meaning of the term "negativo" in the report was unclear to the FBI Laboratory,

it was clear that the SNP Forensic Laboratory had at least preliminarily

disagreed with the FBI's conclusions. The OIG found no evidence, however,

that the FBI Laboratory adequately explored the possibility that it had erred in

identifying Mayfield. Although Green and Wieners stated they took another

look at the identification, they did not attempt to find out the basis of the SNP's

doubts before reiterating their conclusions. Instead, Laboratory personnel told

the Counterterrorisrn Division (CTD) on April !5 that they were "absolutely

confident" in the identification. The demand for the April 21 meeting in Madrid

between Wieners and the SNP came not from the Laboratory, but rather from

the CTD, the FBI Portland Division, and the United States Attorney's Office

(U.S. Attorney's Office). Wieners told the OIG that his purpose in making the

trip to Madrid was to explain the FBI's position, and he did not expect the SNP

to make its own presentation. If so, it appears that Wieners did not view the

meeting as an opportunity to learn more about the SNP's position in order to

inform the Laboratory's own reconsideration of the identification.

The OIG believes that the Laboratory's overconfidence in the skill and

superiority of its examiners prevented it from taking the April 13 Negativo

Report as seriously as it should have. A better response to a conflicting

determination by another forensic laboratory would have been, first, to

determine the complete basis for the other laboratory's disagreement before

committing anew to the validity of the original determination and, second, to

arrange for a fresh examination of the relevant prints by a new examiner who

had not previously committed himself to a particular conclusion. The FBI

failed to take both these steps.

13. OIG Assessment of Other Potential Sources of Error

In this section, the OIG addresses three additional factors that

potentially affected the erroneous identification of LFP 17. The OIG did not

find sufficient evidence to conclude with certainty that these factors specifically

contributed to the error in this case. We determined, however, that the

possibility that these factors could contribute to erroneous identifications in

future cases merited specific discussion in this report and recommendations

for action by the LPU.

172
1. Ridgeology versus Numerical Standards

In light of the ongoing debate regarding Ridgeology versus Numerical

Standards, the OIG addressed two questions. First, was the erroneous

identification attributable to the application of the Ridgeology standard, as

required under the Examination SOPs and the SWGFAST Methodology and

Standards? Second, would the error have been prevented by the application of

a more objective Numerical Standard requiring a minimum number of Level 2

details in agreement?

Many advocates of a Numerical Standard consider 12 points in

agreement to provide an adequate margin of safety. 125 A 12-point standard has

been advocated at least since 1914, when it was proposed by Dr. Edmond

Locard. 126 In the Mayfield case, the FBI Laboratory claimed that it found at

least 15 Level 2 details in agreement, and charted these points in enlargements

for the SNP within a week of the identification. It therefore seems likely that

even if the FBI had formally adopted a 12-point standard rather than the

Ridgeology qualitative-quantitative approach, the FBI examiners would likely

have made the erroneous identification anyway, indeed, one might conclude

that the Laboratory in effect did apply a Numerical Standard by citing 15 Level

2 details as the basis for its conclusion in the affidavit submitted in support of

the material witness warrant.

The difficulty with this assessment is that there were not, in fact, 15

Level 2 minutiae in agreement. As previously demonstrated, comparison of the

latent print with the known print of the true source, Daoud, reveals that only

10 of the features originally plotted by Green were in fact attributable to ridge

deviations on the fingers of the true donor. The other five were, at most,

distortions or breaks in the reproduction of ridges that the examiner appears to

have identified as matching details as a result of a faulty process of circular

reasoning. Moreover, of the 10 remaining points, the examiners were unable to

accurately identify the type of point (e.g., bifurcation versus ridge ending) in 7

cases. Due to the ambiguity as to the type of minutiae being observed in the

latent print, most of these points should only have been counted as being in

"partial" agreement with Mayfield's prints. Further, although these 10 points

were in general agreement as to relative positioning and intervening ridge

count, there were subtle differences in ridge flow and the distance between the

points which further undermined the quality of the agreement. Thus, OIG

12s See, e.g., Stoney, § 27-2.1.215] and note 20.

126 Christophe Champod, "Edmond Locard - Numerical Standards & "Probable"

Identification," Journal of Forensic Identification, Vol. 45, No. 2, March/April 1995, p. 136.

Locard proposed permitting identification on as few as eight points in special circumstances

involving particularly clear prints and other factors. Id.

173
consultant Dusty Clark, who is a well known advocate of the Numerical

Standard approach, gave his opinion that, properly applied, a 12-point

standard would have prevented the Mayfield error because in reality there were

not 12 points in adequate agreement.

The Mayfield error also offers support for the argument that the error

was not a failure to apply an objective numerical standard, but rather a failure

to apply Ridgeol0gy. The Ridgeology approach, as described by Ashbaugh,

stresses consideration not only of Level 2 minutiae but also of the more subtle

considerations of ridge paths and measurement between ridge deviations. 127

As shown in Section II.A.4 above, there were many subtle differences of this

type between LFP 17 and the Mayfield prints that the examiners either

overlooked or rationalized. The FBI examiners appear to have been heavily

influenced by the similarity in the relative location of Level 2 ridge deviations

and the ridge counts between them, to the detriment of giving adequate weight

to the more subtle differences occurring in the portions of the prints lying

between the ostensibly similar points. An adherent of Ridgeology might well

attribute this failure to appreciate subtle differences to an excessive focus on

ul_ accummauui_ of points. OiG consultant john Vanderkoik, who is a

prominent advocate of the Ridgeology Standard who consulted with the OIG,

agreed with this assessment.

The OIG concluded that the source of this error was not the failure of the

examiners to apply one standard or another (Ridgeology versus Numerical). We

believe that the errors committed by the examiners would have led to an

incorrect result no matter which standard was incorporated into the

Examination SOPs. The process of circular reasoning that contributed to the

error in this case was not a function of either of these standards. Further, the

choice of standard would not affect the "one discrepancy rule," which should

have precluded the identification of Mayfield. Neither standard would permit

the examiner to adopt rationalizations for numerous dissimilarities that

required the acceptance of extraordinary coincidences. In addition, either

approach would permit the consideration of Level 3 detail under circumstances

of a high-clarity latent print, but neither approach would have explicitly

permitted the examiners to rely on a few selected Level 3 details in a print so

lacking in clarity.

That being said, the OIG believes that a more objectively defined criteria

for declaring an identification could help prevent future misidentifications. The

Ridgeology Standard embodied in the SWGFAST Standards for Conclusions

states only that "the standard for individualization is agreement of sufficient

friction ridge details in sequence." The OIG believes that the absence of any

127 See, e.g.,A_shbaugh 1999 at p. 141.

174
further objective definition or guidelines for determining sufficiency, in terms of

both quantity and quality, heightens the danger that an examiner will be

unduly swayed by an initial or "gut" reaction, or will fail to factor in an

adequate margin of safety in a close case. The OIG's recommendation

regarding the development of such criteria is discussed in Chapter Five.

2. Independence of FBI verification procedures

Several members of the International Panel suggested that the

verifications of Green's identification by Massey and Wieners were "tainted" by

a mindset in which "[t]o disagree was not an expected response. ''128 Several

panel members also called into question the "independent nature of the

verification employed by the LPU. "129 This appears to be a reference to the fact

that verifiers are made aware that an identification has already been made by a

prior FBI examiner at the time they are requested to conduct the verification,

contributing to the expectation that the second examiner will concur with his

colleague. Several members of the Panel recommended that the FBI Laboratory

do more to foster independent verifications in which the second examiner feels

free to challenge an identification. At least one expressed concern that a

"bench-level" verifier might not feel comfortable disagreeing with a supervisor's

identification. 13o

It was difficult for the OIG to assess whether the FBI's verification

procedures contributed to the Mayfield error, primarily because the verifier,

John T. Massey, declined to be interviewed for this investigation, and because

he created no documentation reflecting the mental processes that led to his

conclusion of individualization. (The International Panel faced the same

obstacle.) Information provided by other witnesses, however, does not show

that Massey conducted a superficial examination or that he merely "rubber

stamped" Green's identification. To begin with, the OIG found no evidence that

Massey's verification was hasty or based on a superficial examination. Wieners

told the OIG that Massey waited to see Mayfield's original inked prints from the

FBI's Criminal Justice Information Services Division (CJIS) rather than rely on

128 Stacey, 2004 at 714; Alan McRoberts, "International Expert Review of the FBI-LPU

Madrid Bombing Latent Fingerprint Examination" (unpublished), 2004, p. 2; Ron Smith,

pp. 2-3.

129 Frank Fitzpatrick, untitled report regarding Madrid case (unpublished) (2004) p. 1;

C. Lee Fraser, "FBI Erroneous Identification - Committee Assessment" (unpublished), p. 4; Ron

Smith, pp. 2-3; Bruce Grant, "International Latent Print Panel Review of the FBI Laboratory

Latent Print Unit fingerprint examination in the Madrid Bombing Case" (unpublished), 2004,

p. 3.

130 Fitzpatrick, p. 2.

175
the digital printouts or screen images available at the Laboratory before making

his decision.

Massey was a retired examiner from the FBI Laboratory, but was serving

as a contract examiner. Wieners selected Massey to act as the verifier because

of Massey's extensive experience and skill. Massey did not depend on Green

for assignments, reviews, or promotions. Several examiners interviewed by the

OIG said that Massey would not allow his examination of the prints to be

influenced by the fact that another FBI examiner had made the identification.

However, LPU Unit Chief Wieners told the OIG that his knowledge of the

conclusions reached by Green and Massey did bias his own review of the print,

because of his high regard for the skills of Green and Massey. At the time of

the original identification, Wieners did not perform a complete ACE-V

examination of the prints, but rather reviewed the results reported by Green

and Massey and concurred with them. Wieners' admission reveals little about

the impact of the FBI's verification procedures, however, because he was not

required by any policy to perform a verification and was not acting as a formal

VEI IIIEI.

In considering whether the FBI's verification procedures contributed to

the error, the OIG found it significant that the court-appointed expert, Kenneth

Moses, reached the same conclusion as the FBI examiners regarding the

identification. The pressures that might cause an FBI Laboratory examiner to

hesitate to dispute an identification by one of his colleagues in the LPU

obviously should not have impacted Moses' impartiality. Moses was specifically

appointed to conduct an independent review of the identification.

Thus, the OIG did not find sufficient evidence to conclude that the FBI's

verification procedures introduced a bias that prevented or discouraged Massey

from challenging Green's conclusions with respect to the identification of LFP

17.

Nevertheless, other information made available to the OIG raises the

possibility that the existing verification procedures may provide insufficient

assurance that complete, independent, and unbiased second examinations are

conducted in connection with every identification.

First, all of the FBI examiners interviewed by the OIG indicated that it is

an extremely unusual event for a second examiner to decline to verify an

identification. The verifier begins his examination with the knowledge that

another FBI examiner has already made the identification. We believe that this

information could consciously or subconsciously influence the verifier in favor

of identification.

176
In addition, under the LPU Quality Manual, Procedures for Reviewing a

Report of Examination, any difference in conclusion between an examiner and

a verifier must be referred to a supervisor or Unit Chief for resolution. The

resolution of such a dispute could implicitly involve a determination that one of

the _xan_liners committed an error. This may create an additional disincentive

for a verifier to decline. LPU Unit Chief Wieners told the OIG that since he

became Unit Chief in 2001 he has never had to resolve such a dispute,

although his unit had completed thousands of identifications in that time.

Thismay reflect the exercise of caution by initial examiners who know their

work will always be checked, but it may also reflect that the verification phase

of ACE-V is not serving as a significant screen.

As described in Chapter Five, the LPU is making major changes to its

verification procedures. The OIG's assessment of these changes, and

recommendations for further changes to the LPU verification procedures, are

discussed in Chapter Five as well.

3. Pressures of a terrorism investigation

Several members of the International Panel suggested that the pressure

of working on a high-profile terrorism case created an atmosphere which

contributed to the misidentification. TM In considering this possibility, the OIG

recognized that the FBI Laboratory works on many high-profile matters without

committing errors. The pressure to identify LFP 17 was no greater than the

pressure to identify the other seven latent prints submitted by the SNP for

which Green conducted unsuccessful IAFIS searches. Again, it was the

unusual similarity of up to 10 Level 2 details in the prints that initially misled

Green and led to the other errors.

Yet, there is one respect in which the OIG believes the nature of the

crime could contribute to an error of this type. As noted in Chapter Three, the

FBI Laboratory's criteria for reaching an "inconclusive" result apparently

precludes such a result in cases such as this one in which both the latent print

at issue and the known prints of the subject are deemed to be of sufficient

quality for comparison. According to the FBI examiners interviewed by the

OIG, when an FBI Laboratory examiner is unable to effect an identification or

an exclusion, the usual practice is to declare the latent print to be of "no

value." As noted in footnote 85 above, the LPU primarily uses the

"inconclusive" result when there is an absence of relevant detail in the

exemplar print. The LPU typically does not alert the submitting agency or the

investigating unit of the FBI that there was a potential suspect who could not

131 See, e.g., McRoberts, pp. 1-2; Fraser, p. 2.

177
be identified due to the insufficiency of unique detail, but who also could not

be excluded.

The OIG consultants agreed that, in the case of a particularly heinous

crime and a comparison of a single print in which there are ambiguities such

that the examiner has insufficient confidence to reach a conclusion of

identification, this circumstance could create pressure on the examiner to

declare an identification when he should not. Fear of failing to identify a

terrorist could push an examiner to make a false identification in a close case.

One possible means of preventing this kind of pressure from pushing an

examiner to make a borderline identification would be for the examiner and the

Laboratory to recognize the option of utilizing the "inconclusive" category in

such cases. This conclusion would alert the relevant investigating authorities

that there was a particular subject who could neither be included nor excluded

as the donor of the print. It would be different from a "no value" determination,

which suggests that the print itself was not suitable for comparison to any

subject. The investigating authorities could then make an informed decision

+_,_l_,,,,_ w,,_u,_, to L_t_ aualctonat investigatory steps with regard to the

potential subject. According to the OIG's consulting examiners, all of whom

are members of SWGFAST, the SWGFAST Method and the SWGFAST

Standards would permit this use of the "inconclusive" result. The conclusion

would not have to be couched as a "probable or possible identification" (which

is prohibited under the SWGFAST Method and Standards), but merely as

"unable to identify or exclude." This recommendation is discussed further in

Chapter Five.

C. The Role of Mayfield's Religion in the Identification

The OIG examined the allegation made by some individuals, and in

Mayfield's civil action, that knowledge of Mayfield's Muslim faith may have

influenced the LPU's examination of LFP 17 and the Mayfield exemplar prints.

The OIG determined that Mayfield's religion was unknown to the FBI

Laboratory on March 19, when the Laboratory made the initial identification.

The FBI identification records available to Green, Massey, and Wieners at that

time only revealed the candidate's name, arrest record, and the fact that he

had been fingerprinted at a military installation. Nothing on the FBI

identification record indicated Mayfield's religion, current employment, or

whereabouts, or the fact that he was married to an Egyptian immigrant. The

OIG found no evidence that the FBI had knowledge of Mayfield's religion until

the Portland Division learned this fact in the early stages of the field

investigation, after the identification had been made and verified in the LPU.

178
The question of whether Mayfield's religion was a factor in the

Laboratory's failure to revisit the identification and discover the error in the

weeks following March 19 is more difficult. By the time the SNP issued its

April 13 Negativo Report, the Laboratory examiners had become aware of

information about Mayfieid obtained in the course of the Portland Division's

investigation, including the fact that Mayfield had acted as an attorney for a

convicted terrorist, had associations with other subjects of FBI terrorism

investigations, and was himself a Muslim. Wieners candidly admitted that if

the person identified had been someone without these circumstances, like the

"Maytag Repairman," the Laboratory might have revisited the identification

with more skepticism and caught the error.

The OIG concluded that Mayfield's religion was not the sole or primary

cause of the FBI's failure to question the original misidentification and catch its

error. We concluded that the primary factors in the FBI's failure to revisit the

identification before the SNP identified Daoud were the unusual similarity

between LFP 17 and Mayfield's prints and the FBI Laboratory's faith in the

. expertise and infallibility of its examiners and methods. However, we believe

that May-field's representation of a convicted terrorist and other facts developed

during the field investigation, including his Muslim religion, also likely

contributed to the examiners' failure to sufficiently reconsider the identification

after legitimate questions about it were raised.

D. Explanations Found by the OIG Not To Have Contributed to

the Error

The OIG found that several explanations for the error proposed by

_arious sources were not persuasive. Several of these explanations were

offered by the FBI during the time shortly after the misidentification was

discovered. Others were suggested by the International Panel or in the press.

I. Lack of access to the original evidence

At various times beginning shortly after the discovery of the error, FBI

officials have stated that the error was caused in part by the fact that the

Laboratory did not have access to the original evidence (the plastic bag on

which LFP 17 was found). The New York Times reported that, according to a

congressional aide, FBI "senior officials" emphasized that the FBI made

repeated unsuccessful requests to the SNP for the best possible evidence. This

theme was also reflected in several versions of draft talking points prepared for

the Director of the Laboratory for use in Congressional briefings.

LPU Unit Chiefs Meagher and Wieners told the OIG that if the FBI

examiners had obtained access to the plastic bag on which the fingerprint was

179
found, they would have determined from the positioning of three latent prints

(LFPs 17, 19 and 20) that LFP 17 was deposited simultaneously with two other

latent prints in a single grasp of the bag. Wieners and Meagher claimed that

from this information the Laboratory would have determined that LFP 17 was

in fact made by a right middle finger and therefore would not have been

matched to Mayfield's left index finger. Moreover, the Laboratory determined in

March that LFP 20 was not made by Mayfield. Seeing the bag, the argument

goes, would have enabled the examiners to determine that the same person

made both LFP 17 and LFP 20. Since Mayfield did not make LFP 20, he would

not have been identified as the source of LFP 17.

The OIG reviewed the evidence and concluded that, contrary to these

claims, having access to the bag would not necessarily have prevented the LPU

from identifying Mayfield. Photographs of the bag demonstrate that the three

latent prints in question were located spaced apart on the flattened bag, not

immediately adjacent to one another. (See Figure 10.) Green told the OIG that

in the case of a plastic bag that is laid out for processing, it is difficult to

determine with certainty whether prints deposited at different locations on the

bag were simultaneous prints of a single individual. SNP representatives

acknowledged that there was no way to reconstruct the configuration of the bag

as it was found in the van.

The OIG did not find convincing evidence that a conclusive finding of

simultaneity could be made from the positioning or appearance of the latent

prints on the plastic bag. The OIG found that no such conclusion was ever

reached by any FBI examiner in this case. LPU Unit Chief Wieners reported

that another LPU examiner made a determination that the prints were

deposited simultaneously during his May 22 trip to Madrid, when he inspected

the bag (which had been marked to show the location of the prints). This

examiner told the OIG that he never made his own analysis of the simultaneity

issue and merely concluded that the SNP's hypothesis of simultaneity was

plausible. The OIG consultants were in agreement that the arrangement of

fingerprints on the bag did not compel a conclusion that the prints were

deposited by a single person. The hypothesis that they were deposited in a

single grasp of a rolled or crumpled plastic bag was certainly plausible, but

there were also other plausible ways that three latent prints could have been

deposited on a plastic bag in that pattern at different times or by different

persons.

The SNP apparently made a determination of simultaneity only in

conjunction with the comparison of LFPs 17 and 20 with the known prints of

Daoud. An SNP Laboratory Section Chief told the OIG that the positioning of

the prints alone, without identification of the prints to Daoud, would not have

provided a sufficient basis for a finding of simultaneity. In other words, the

180
FIGURE 10 

Photograph of Blue Plastic Bag, Showing Locations of LFP 17 (Near 

Top Edge) and LFP 20 , 
hypothesis of simultaneity resulted from the identification of both prints to

Daoud rather than the other way around.

Assuming that the examiner had initially adopted the hypothesis that

LFP i7 was deposited simultaneously with LFPs i9 and 20, this theoretically

could have led an examiner to specify a particular digit (right middle) as part of

the initial IAFIS search. Green told the OIG, however, that if he had had any

doubt about whether the prints were simultaneous, he would not have limited

his IAFIS search to a single digit. There is no SOP requiring that the examiner

use such a limitation. Because LFP 17 was a relatively rare arch pattern,

Green was able to conduct a search of the Criminal Master File without limiting

his search parameters to a particular digit.

Even assuming that Green would have initially specified a right middle

finger for the IAFIS search, no identification would have been made. At that

stage, the examiner would be faced with either abandoning the effort to identify

this print or broadening the IAFIS search to include other digits. The latter

course was the more likely in light of the gravity of the investigation and the

uncertainty of the sirnultaneit-y hypo;chesis, in that event, iAFiS would have

retrieved the Mayfield known prints and the same chain of events that

ultimately led to Mayfield's identification could have been triggered. 132

The OIG also found it significant that at the time of the original

identification of Mayfield, the FBI examiners did not consider access to the bag

to be a necessary prerequisite to making an identification. Although at least

one request was transmitted by LPU Unit Chief Wieners to INTERPOL for

access to the "original evidence," Wieners told the OIG that he did not expect

the SNP to give up custody of a key piece of evidence, and he was not surprised

when it did not. Had the Laboratory considered such access to be essential to

completing the identification, it could have informed the SNP that it had a

potential match but that a final determination required access to the evidence.

When Wieners traveled to Madrid in April to meet with the SNP, he did not

request to examine the original evidence. 133

132 Wieners told the OIG that LFP 17 and LFP 20 were similar in tone and ridge width,

further supporting the hypothesis of simultaneity. The same can be said of the two portions of

LFP 17 (the center and the upper left) that the Laboratory concluded were made by separate

touches, possibly by different persons, in order to explain a dissimilarity in the upper left part

of the same print. Assuming the Laboratory would apply the same logic with regard to the

simultaneity question that it applied to the dissimilarity in the upper left portion of LFP 17, the

Laboratory would have readily attributed LFP 20 to a separate, non-simultaneous touch by a

different person once it found that LFP 20 did not match Mayfield.

133 According to the Laboratory, the Madrid Legat advised Wieners to make his

presentation to the SNP without making any requests. In addition, Wieners told the OIG that

he did not wish to irritate the SNP and that he did not consider access to the evidence to be

necessary at that time because the Laboratory had already reached its conclusion.

182
Within a few weeks after the Laboratory's error was discovered,

Laboratory spokespersons began emphasizing that the FBI Laboratory was

solely responsible for the errorand that no blame should be assigned to the

SNP. The FBI witnesses interviewed by the OIG did not fault the SNP for

declining to provide the plastic bag to the _tJi baboratory. Nevertheless, Unit

Chiefs Meagher and Wieners continued to assert in their interviews with the

OIG that access to the bag would have prevented the error. For the reasons

stated in this section, the OIG did not find this explanation to be persuasive.

We recognize that as a general rule it is better for the FBI Laboratory to have

access to the evidence on which an original fingerprint is deposited when

making a latent fingerprint examination. But we believe that the question of

access to the evidence should not distract the Laboratory from the

methodological errors that were the ultimate cause of the misidentification.

2. Image quality

In a press release issued on May 24, the FBI attributed the erroneous

identification to an "image of substandard quality." Laboratory Director Adams

S+,-,+,=,..l;.... 4=....... 11___-_1_ S. _,_,_ 1,_a _ul,,_,el,_c c_t,, wlui U. Attorney immergut and Assistant Attorney

General Wray that day that the problem was caused by the FBI's use of a thirdgeneration image. Consistent with this explanation, on May 25 Wieners

drafted a Concept Paper for the International Panel that included, among the

proposed topics for consideration, "It]he effects of digital capture and

transmission on friction ridge detail." On May 27, Green signed a

memorandum to the Acting Section Chief in charge of the LPU attributing his

error in part to "the quality of the image," which Green told the OIG was a

reference to the potential for distortion resulting from the use of a digital image

that had been compressed for transmission, la4

However, this explanation was not supported by the evidence. The

digital image used to identify Mayfield had a resolution in excess of 1,000

pixels per inch. This degree of resolution satisfied the threshold provided in

the SWGFAST Friction Ridge Digital Imaging Guidelines. LPU Unit Chief

Meagher described 1,000 pixels per inch as the resolution threshold preferred

by the LPU.

The question remains whether there was degradation of the image in the

process of digitizing it that contributed to the error. The OIG consultants

agreed that, although there is a modest difference in clarity between the digital

134 One difficulty with the "image quality" explanations is that at the time they were

proposed, the FBI did not know whether the digital image was materially different from the

original photographic image used by the SNP. As previously noted, the FBI did not see a copy

of the print from the original negative until June 9.

183
image of LFP 17 used to identify Mayfield and the photographic print that was

later made available by the SNP, this difference was not decisive because there

was ample quantity and quality of detail in the digital version to permit the

examiner to avoid the error. All of the members of the International Panel

_ ._ _ _ _._._.._ 1

cone u_, _a in _t. _ ulc finding that :'the quality of the images that were used to make

the erroneous identification was not a factor. "13a

The FBI examiners interviewed by the OIG also agreed that the Mayfield

error was not attributable to the use of a digital image of LFP 17. Green told

the OIG that he did not believe that it would have changed his examination to

have had access to the photographic version of LFP 17 that the SNP later

provided. LPU Unit Chief Wieners stated that the increased clarity of the

photographic image made it easier to track the ridges from the center of the

print into the upper left portion, and thus to see that the upper left was not a

separate touch. 136 Although Wieners stated that the photographic image was

superior, he stated that he did not think that the use of digital media was a

major factor in the error.

..... s_ vl _,l_ vl, _, unanim of o nion among examiners inside and

outside of the FBI Laboratory, including the International Panel and the OIG

consultants, the OIG concluded that the quality of the digital image used by

the Laboratory to identify Mayfield was not a cause of the error.

We also concluded that the reason the FBI offered this flawed

explanation in the period immediately after the error was discovered was that

there was a misunderstanding or miscommunication between the LPU

examiners and Laboratory management regarding what the LPU examiners told

them early on May 24. Although Unit Chief Meagher expressed concern during

the overnight review that the Laboratory had not seen the original fingerprint

on the plastic bag, the FBI examiners had not yet determined whether the

image available to the SNP was significantly better than the image used to

identify Mayfield. Adams also apparently misunderstood what the LPU

examiners saw in Madrid on May 22. As noted in Chapter Three, they only saw

better quality exemplar prints for Daoud during that trip, not a better quality

image of the latent fingerprint.

We found that the LPU examiners who could have corrected this

misunderstanding (Meagher, Wieners, Green, and the examiners who traveled

to Madrid) were not involved in subsequent briefings of senior FBI management

135 Stacey, p. 714.

136 The OIG consultants and International Panelist Ken Smith demonstrated to the OIG

how the ridges could also be tracked continuously from the center of the print to the upper left

using the digital image.

184
or in the preparation of the FBI's press release or Director Adams' statements

for Congress regarding the causes of the error. The suggestion that the FBI

was using an inferior quality image to that available to the SNP was an easily

understandable explanation, and an attractive one for the FBI to disseminate

iiii,_CUl_LLCiy¢_lLei trle error was aiscoverea, but it was not supported by the

evidence in this case. By May 26, the matter was clarified and the FBI stopped

using the "image quality" explanation for the error. As noted above, after

obtaining the best available quality photographic image of LFP 17 from the SNP

in June, the FBI did not revive the "image quality" explanation for the error.

However, we believe that the foregoing explanations for how FBI

spokespersons misunderstood the "image quality" issue do not apply with

respect to Green's May 27 memorandum to the Acting Section Chief, which

also referenced "the quality of the image" as a source of the error. Green

should have been aware, as a result of the May 23-24 overnight review, that

the FBI Laboratory had never seen a better image of LFP 17 than the one used

to identify Mayfield and that there was no basis for his speculation that the

error was caused by image distortion.

3. Failure to detect interruptions in ridge flow

Another explanation offered by Laboratory officials for the

misidentification was that LFP 17 was so divided by creases and separations

that the contiguous areas of the print had too few details to support an

identification. Following the May 23-24 overnight review of LFP 17, LPU Unit

Chiefs Meagher and Wieners prepared an explanation for the Laboratory's "no

value" determination stating that "the latent print was divided by many lines of

demarcation possibly caused by creases in the plastic bag, multiple touches by

one or more fingers, or both. Based on the lack of sufficient quality and/or

quantity of ridge detail in any one area of the latent print, a no value

determination was made." This explanation was cited in the government's

Motion To Dismiss the Material Witness Proceeding filed on May 24.

Laboratory Director Adams elaborated on this explanation in an

interview with the OIG. Adams stated that because of these separations and

interferences in the print, there were not enough points within any contiguous

area within the print to effect an identification. He stated that Green's error

was in failing to realize this when he was analyzing the latent print to

determine if it was of sufficient quality for further processing. Similar issues

were raised in the PowerPoint presentation made to the International Panel.

Figure 11 is an illustration used in the PowerPoint presentation. It shows over

30 different lines drawn to indicate interruptions in the ridge flow.

185
FIGURE 11 

Interruptions to Ridge Flow 
The difficulty with this explanation for the error and with the

Laboratory's '"no value" determination was that the Laboratory was forced to

rescind it a few weeks later when it identified Daoud as the source of the print.

This change in conclusions cannot fully be explained by the photographic

image used to identify Daoud that the bill _ provided to the Laboratory in June.

As discussed in the previous section, the difference in clarity between the

digital image used to identify Mayfield and the photographic image later

provided to the Laboratory was not a cause of the error. The FBI has never

claimed that the interruptions to ridge flow that appeared in the digital image

were caused by the digital photography or that they disappeared once a

photographic image became available. Three different examiners later

identified Daoud as the source of LFP 17 and were each able to chart

approximately 20 points of similarity in locations throughout the print despite

the interruptions to ridge flow.

Wierfers and Meagher both suggested that the event that made it possible

for the LPU to revise its "no value" determination to an identification of Daoud

was information obtained from the SNP during a meeting in Madrid on June 9.

But Meagher and Wieners did not identify any specific information that was

provided by the SNP at the June 9 meeting that eliminated the problem of

interruptions to ridge flow. Indeed, the LPU examiner who verified the

identification of Daoud in late June did not attend the meeting in Madrid and

told the OIG that the only thing he recalled that Meagher told him as

background information was the processing method (superglue and dye) and

the possibility that LFP 17 and LFP 20 were deposited simultaneously. The

verifying examiner also told us he made his identification decision without

assuming simultaneity. It is therefore apparent that he did not need any

information about the print that was not already available to the LPU before

the June 9 meeting to make the identification of Daoud, and that the

separations and interferences in the print were not an obstacle to the

identification.

The OIG reviewed Figure 11 and the "no value" determination with its

expert consultants. The OIG consultants all stated that the identification of

Daoud was possible based on the same digital image that the LPU used to

identify Mayfield, notwithstanding the interruptions to ridge flow. John

Vanderkolk told the OIG that he was disturbed by Figure 11 and the

suggestion that discontinuities within the print contributed to the error by

limiting the continuous areas in the print to small areas. In many cases the

ridges continue on both sides of the marked discontinuities or interferences.

Vanderkolk stated that this latent print did not have an unusual number of

these kinds of "red flags," and that he felt that Figure 11 was misleading. If the

discontinuities should have precluded the identification of Mayfield, they

should also have prevented the identification of Daoud. But the OIG

consultants all stated that the Daoud identification was not difficult.

187
In short, the OIG concluded that the interruptions and separations in the

print did not make it "unsuitable for comparison" and the failure to recognize

these separations and interruptions was not a significant cause of the error.

4. Whether LFP 17 was of ::no value" because it could

"work with" two different people

Another suggestion discussed within the FBI during the immediate

aftermath of discovering the mistake was that LFP 17 should have been

declared of "no value" because it could be matched to two different candidates,

Mayfield or Daoud. Green told the OIG this was the basis of the statement in

his May 27 memorandum that he should have declared the print to be of "no

value." Wieners told the OIG that during the May 23-24 overnight review,

Meagher stated LFP 17 should be declared to be of "no value" because it could

be "made to work" with either Mayfield or Daoud. Contemporaneous

documents indicate that this reasoning was also provided by the Laboratory

during one or more internal government briefings regarding the error.

"-" ...... ' ..... "-- "_ 1111__2_pl_il_ttlUll, 11accurate, ....... ' -' -"_" -- wuulu raise -'* a question about latent UlliltJ LIlt

fingerprint identification. If LFP 17 could be '(made to work" with the known

prints of two different people using accepted fingerprint identification methods

and standards, the question arises: are such methods and standards

preventing false identifications in other cases? In the Mayfield case, by good

fortune, the known prints of both subjects eventually came to the attention of

the FBI. There is no way for the Laboratory to determine from an initial

analysis of a latent that it might ('work with" more than one person's

fingerprints in this scenario. If the known fingerprint from only one potential

-subject is available for comparison, the potential for an erroneous identification

is apparent.

We identified in the previous sections of this report several causes for the

error. One of these causes- the unusual similarity of the prints - was outside

the control of the examiners. The other causes involved mental processes,

such as circular reasoning and rationalizing differences in appearance, that

have been cited as potential causes of error in the literature on latent print

identification, and that could have been avoided through the application of a

more rigorous approach. The OIG found that LFP 17 could not "work with"

both Mayfield and Daoud because, among other things, there were many

differences in appearance between LFP 17 and the Mayfield print that could not

be adequately explained.

The OIG recognizes that the Laboratory's "no value" determination was

made early in the morning on May 24 under circumstances of extraordinary

stress and pressure. The examiners involved in the overnight review had been

188
instructed to provide a definitive answer first thing in the morning for a

Director's briefing but had been unable to reach consensus on the result. The

examiners were justifiably concerned with avoiding making another error in

haste and compounding the problem that the Mayfield case was likely to cause

for the Laboratory and the discipline.

The differences between the Mayfield prints and LFP 17 that seemed

apparent to the International Panel and the OIG's consultants in a

retrospective review conducted without time pressure were not so obvious to

FBI examiners working under very different circumstances. The OIG also

believes that at the time of the "no value" determination, the examiners

involved in the reexamination had not yet fully accepted that the Laboratory

could have identified the wrong person as the donor of a latent fingerprint, and

the "no value" determination was in a sense an intermediate point in the

process of correcting the error. The "no value" result was a means for the

Laboratory to provide a conclusion under the pressure of time consistent with

conventional latent fingerprint identification terminology. It was a highly

unsatisfactory result, however, in that it left Mayfield under an unfair

continuing cloud of suspicion because he had not formally been excluded as

the donor of the print. It also left the SNP in the position of having its

identification of Daoud undermined by the FBI's public declaration that LFP 17

was of no value for identification.

5, Excessive faith in IAFIS technology

Some members of the International Panel suggested that the FBI's faulty

examination of LFP 17 stemmed from the suggestive power of the IAFIS results.

For example, panel member Alan McRoberts stated that "the AFIS suggestion of

a candidate with some similarities to the evidence print" contributed to a

"mind-set" of identification. 137 Panel member Ron Smith likewise suggested

that the examiners' "strong belief in the discriminating power of AFIS

technology" affected the examiners' subsequent examination. 138

The OIG found these explanations to be unsatisfactory (or perhaps

imperfectly worded) because IAFIS did not "suggest" a single candidate to the

FBI examiners. Mayfield's print was the fourth-highest scoring candidate

among the 20 candidate prints selected by IAFIS from the Criminal Master File.

The examiner (Terry Green) had apparently already declined to declare an

identification from among the candidates generated by IAFIS during searches of

the Civil File and the Special Latent Cognizant File. Green conducted IAFIS

137McRoberts, p. 2.

13s Ron Smith, p. 2; see also Stacey, pp. 712-713 ("It]he power of the IAFIS match, was

thought to have influenced the examiner's initial judgment and subsequent examination").

189
searches of at least seven other latent prints from the SNP without declaring an

identification. As all three FBI examiners were well aware, most IAFIS searches

do not result in identifications. The OIG concluded that the examiners were

initially misled not by a belief in the discriminating power of IAFIS but rather

by the unusual similarity of the Mayfieid print to LFP i 7. This similarity led

Green to the other errors in his examination, including the process of circular

reasoning and the adoption of inadequately supported explanations for

differences.

6. The LPU verifier's prior errors

Within a few weeks after the misidentification of LFP 17 was discovered,

media reports began to appear that John T. Massey, the contract examiner who

verified the identification of Mayfield, had previously been reprimanded for

erroneous fingerprint identifications. Mayfield's attorneys included this

information in the complaint filed in Mayfield's civil action, alleging that

Massey was selected to verify the identification because this history of

discipline for poor performance would motivate Massey to agree and verify the

iJi iul iugiltiliUtEtlUll.

The OIG obtained the followiflg information from the FBI Laboratory

regarding this allegation. Prior to becoming a latent print examiner in 1975,

Massey worked as a Fingerprint Clerk in the FBI Identification Division. In this

capacity, Massey's job involved comparisons of inked 10-print cards from a

person, such as might be obtained pui_suant to an arrest or job application, in

order to determine whether the individual had a prior arrest record, possibly

under a different name. This was in the era before computerized IAFIS

searches, and Massey's function involved extremely rapid comparisons of the

subject 10-print card with a large number of inked cards already on file. The

comparison process for this job bears only superficial resemblance to a latent

print examination utilizing the ACE-V process. According to the FBI, this

function involved making approximately 60 identification decisions per hour.

The function did not involve evidence in criminal prosecutions or courtroom

testimony. LPU Unit Chief Wieners, who performed the same kind of work in

the Identification Division prior to joining the Latent Print Unit, told the OIG

that errors performing this function were "very commonplace."

According to the FBI Laboratory, Massey made three erroneous

fingerprint identifications while working for the Identification Division in 1969,

1970, and 1974. The FBI Laboratory did not consider errors of this type to

disqualify Massey from selection into the latent fingerprint identification

program, which was a competitive process.

Massey's personnel file also indicates that after he transferred into the

latent fingerprint training program, his promotion from that program to be an

190
examiner was delayed in 1976 because of two missed identifications during

training. According to the Laboratory, there are no records of any other errors

made by Massey during the many years he served as a latent print examiner

prior to the Mayfield matter. Massey's performance as a latent fingerprint

examiner and his reputation for good work within the LPU were reasons that

the Laboratory hired him on a contract basis following his retirement as a

full-time LPU examiner.

The OIG concluded that the errors made by Massey more than 30 years

ago while performing a substantially different function, as well as the 2

identifications that Massey missed during his training as a latent print

examiner nearly 30 years ago, do not indicate that Massey was unqualified to

serve as a verifier in the identification of LFP 17. At the time of the Mayfield

identification, Massey was performing more casework in his capacity as a

contract examiner than either Green or Wieners (who were supervisors), and

Massey was selected because of his reputation as a skilled latent print

examiner. The OIG concluded that the selection of Massey for this function

was not inappropriate or based on any improper motive.

E. Summary of Causes

We determined that the unusual similarity of details on the fingers of

Mayfield and the true source of the print, Ouhnane Daoud, confused the FBI

Laboratory examiners, and was an important factor contributing tothe

erroneous identification. Ten of the "points" in LFP 17 that the examiners used

to identify Mayfield were also later used by different FBI examiners to identify

Daoud as the source of the print. These features formed a constellation of

points in LFP 17 that was generally consistent with the known fingerprints of

both Mayfield and Daoud in location, orientation, and intervening ridge counts.

This degree of similarity between prints from two different people is an

extremely unusual circumstance within the latent fingerprint discipline, and it

misled not only the FBI examiners, but also an independent court-appointed

latent fingerprint expert.

However, we also found that the FBI examiners committed several

methodological errors that compounded the confusion caused by the unusual

similarity of the different prints and resulted in the misidentification. First, the

initial examiner (Green) applied circular reasoning. Having found as many as

10 points of unusual similarity, he began to reason backward and "find"

additional features in LFP 17 that were not really there, but rather were

suggested to him by features in the Mayfield exemplar prints. As a result, he

erroneously interpreted murky or ambiguous details in LFP 17 as points of

similarity with Mayfield's prints. This process of circular reasoning infected the

process, particularly in the absence of standards or safeguards requiring the

examiner to keep distinct which features were seen in the latent fingerprint

191
during the analysis and which were only suggested during the comparison.

This error likely would have been avoided had the examiner firmly established

and documented which features were clearly discernible in the latent

fingerprint in the _analysis" phase, before conducting a comprehensive side-byside comparison. Once Green identified these features as similarities, Wieners

accepted them without adequate skepticism.

Second, the examiners relied on Level 3 details under circumstances that

did not support the reliability of these features. Although several different

examples of Mayfield's known fingerprints were available to the FBI, some of

the details that the FBI examiners considered to be important were only visible

on one version of those fingerprints, suggesting the possibility that these

details were not reliable characteristics for identification. In addition, the

examiners who made the identification appear to have relied on selected Level 3

similarities while dismissing or discounting other apparent pores, ridge edge

shapes, and small between-ridge details in LFP 17 that were not in agreement

with the known Mayfield fingerprints. We found that the examiners should

have had serious doubts whether the clarity of LFP 17 was sufficient to support

any i'_im_ on Level o detail. - -" - ....

Third, the FBI examiners overlooked or excused a significant number of

differences in appearance between LFP 17 and Mayfield's fingerprints, and they

did not apply the %ne discrepancy rule" with sufficient stringency to support

the degree of certainty required for a conclusion of identification. The upper

left portion of LFP 17 was plainly inconsistent with Mayfield's prints. The

examiners accepted a _double touch" explanation for this difference, for which

the evidence was mixed at best. This explanation required the examiners to

accept an extraordinary set of coincidences. The examiners also had to adopt

explanations for numerous other, more subtle differences that may have been

individually plausible but that cumulatively required too much rationalization.

Fourth, the FBI examiners failed to assess the poor quality of the

similarities that were used to justify the Mayfield identification and give

adequate consideration to the incomplete nature of the agreement in points

between LFP 17 and Mayfield's fingerprint. Although there were as many as 10

_points" in LFP 17 that bore an unusual similarity to points in the Mayfield

fingerprint in location and ridge count, the limited clarity of LFP 17 prevented

the examiners from making an accurate determination of the type of many of

these points (whether they were ending ridges or bifurcations). We found that

the examiners should have recognized that these 10 similarities had less

individualizing power than they would if the type of point had been

unambiguously in agreement, and, hence, that they were inadequate to

support an identification.

192
The FBI Laboratory also did not adequately explore the possibility that it

had erred when the SNP reported in mid-April that its comparison of the

Mayfield prints was "negative." The FBI examiners did not attempt to find out

the basis of the SNP's doubts before reiterating that they were "absolutely

confident" in the identification on April i 5, a full week before the FBI

Laboratory met with the SNP. We found that the FBI Laboratory's

overconfidence in the skill and superiority of its examiners prevented it from

taking the April 13 Negativo Report as seriously as it should have.

We did not find sufficient evidentiary support to conclude that several

other potential sources of error were major factors in this case. We found that

particular standard utilized by the FBI examiners for identification (the

Ridge01ogy Standard versus a more objective Numerical Standard) was not a

root cause of the error; the Laboratory's methodological errors could occur

under either standard. We also found insufficient evidence to conclude that

the Laboratory's verification procedures contributed to the misidentification of

LFP 17, or that the particular pressures of a high-profile terrorism investigation

led to the erroneous conclusion. Nevertheless, we found that the potential for

•u_u_ errors arising _ - _ ' _rum these iacmrs was sufficient to support

recommendations for research and changes in Laboratory procedures, which

we discuss in detail in Chapter Five.

We also examined the allegation that the FBI Laboratory's identification

of Mayfield was improperly influenced by knowledge of Mayfield's religion. We

found that the Laboratory had no knowledge of Mayfield's Muslim faith at the

time that it made the initial identification. In the days or weeks following the

identification, however, information acquired in the field investigation regarding

Mayfield's religion became known to the examiners. We believe that the

primary factors in the FBI's failure to revisit the identification were the unusual

similarity between Mayfield's fingerprint and LFP 17, and the FBI's

overconfidence in the superiority and infallibility of its examiners and methods.

However, we believe that Mayfield's representation of a convicted terrorist and

other facts developed during the field investigation, including his Muslim

religion, also likely contributed to the examiners' failure to sufficiently

reconsider the identification after legitimate questions about it were raised.

Finally, we reviewed several other potential causes of the error that have

been suggested by the FBI and others following the discovery of the

misidentification, and found them to be unpersuasive. We found that the

chain of events leading to the error would likely have occurred even if the FBI

had been given access to the original evidence on which LFP 17 was found. We

found that the quality of the digital image used by the FBI Laboratory to make

the original identification was adequate and was not a factor in the error. We

found that the separations and interruptions in ridge flow within LFP 17 did

not prevent the SNP or the FBI from correctly identifying Daoud and, hence,

193
did not cause the rnisidentification of Mayfield. We found no support for the

suggestion that LFP 17 was of _no value" because it could _work with" the

known fingerprints of two different people. We also found no reason to believe

that the FBI Laboratory was misled by an excessive faith in IAFIS technology.

In summary, we believe that the unusual similarity between Mayfield's

fingerprint and LFP 17 was a major factor in the misidentification. However,

we believe that the FBI examiners could have prevented the error by a more

rigorous application of several principles of latent fingerprint examination

methodology.

194
CHAPTER FIVE

OFFICE OF THE INSPECTOR GENERAL'S ASSESSMENT OF THE

FBI LABORATORY'S RESPONSES TO THE

FINGERPRINT MISIDENTIFICATION

Following discovery of the error, the FBI Laboratory initiated several

actions, including: (1) a comprehensive internal review of FBI Laboratory

Latent Print Units (LPU) policies and procedures, (2) corrective action with

respect to the examiners involved in the error, (3) a review of prior Integrated

Automated Fingerprint Identification System (IAFIS) identifications from digital

prints, and (4) an ongoing review of prisoners scheduled for capital punishment

who may have been convicted or sentenced based on an FBI fingerprint

identification. The OIG's assessment of these actions is provided below.

I. The Latent Review Team Recommendations

In response to the International Panel's reports, the FBI Laboratory

;.-,,-,.-,lo'..-,.-.._,.-,,'-a,-1 ...... !_ _-_ .:'--_

l_pl_ll_ll_u a _ulllpl_n_s_v_ review of practices in the LPU. Seven different

Latent Review Teams were assembled, composed of forensic experts from other

units of the FBI Laboratory and from outside organizations. No LPU employees

participated on the teams. Each Latent Review Team addressed one of the

following subject areas:

• Policies for examining and reporting cases with "less than original

evidence;"

,

• Documentation and Case Notes;

• Technical and Administrative Review;

• Management and Organizational Structure;

• Training;

• Standard Operating Procedures Review; and

• Science of Latent Fingerprint Identification.

The Latent Review Teams generated reports addressing 41 separate

issues. Each report contained specific recommendations for action by the LPU.

The recommendations were reviewed by the LPU Unit Chiefs prior to being

finalized. According to Melissa Smrz, the Section Chief in the FBI Laboratory

in charge of the LPU, all recommendations set forth in the Latent Review Team

reports will be implemented by the LPU.

195
The OIG has reviewed these reports and recommendations in light of the

OIG's findings regarding the causes of the misidentification of Latent

Fingerprint 17 (LFP 17), and has discussed these recommendations with its

expert consultants. If implemented, many of these recommendations will

result in significant changes to the procedures, organization, and workload

management of the LPU. In the subsections below, the OIG addresses the

most significant recommendations made by the Latent Review Teams.

Generally, the OIG found that many of the Latent Review Team

recommendations were relevant to the sources of the Mayfield error and are

likely to help prevent future errors of this sort. In some cases, the OIG

suggests refinements to the recommendations, or identifies ambiguities in the

recommendations or tension between recommendations of different teams. We

also present additional recommendations for action in this chapter.

A. Research Projects

The Latent Review Teams issued recommendations for major research

projects relevant to the latent fingerprint discipline. The FBI Laboratory has

already begun funding some of this research. The projects recommended by

the Latent Review Teams include:

• Research aimed at developing and testing the validity of a minimum

quantitative threshold for effecting an identification that takes into

account all levels of detail and the clarity of the print;

• Research to test the hypothesis that Level 2 and Level 3 details occur on

the friction ridges as independent, random events;

• Testing examiner performance in a rigorous, controlled manner to

determine accuracy of performance;

• Comparison of the performance of examiners using a subjective

approach (i.e., the "Ridgeology" approach described in Chapter Three) to

those using a minimum threshold of points; and

• Research to determine the permanence of Level 3 details and features on

the lower joints, soles, and palms.

Recommendation 1 The OIG suggests one modification of this list of research

projects. It appears to the OIG that the debate regarding the utility of Level 3

detail in latent fingerprint examination relates at least as much to the

reproducibility of tiny Level 3 details under the myriad conditions of latent

fingerprint deposition as it does to the permanence of such features in the

friction skin. By reproducibility, we refer to the issue of whether Level 3 details

are reproduced in latent prints with sufficient consistency and reliability of

196
appearance to provide valid individualizing power. As shown above, the

Mayfield identification is an important case study for this debate. Therefore,

the OIG suggests that the FBI Laboratory consider shifting at least some of the

emphasis on research of Level 3 detail from the issue of permanence to the

issue of reproducibility and defining the circumstances under which Level 3

detail should be utilized.

Recommendation 2 The OIG agrees with the recommendations of the Latent

Review Team directed at developing more objective criteria for declaring

identifications and at providing scientific validation for the FBI Laboratory's

methods of latent fingerprint examination. If successful, these projects will

address some of the issues repeatedly raised by critics of both the discipline in

general, and the Ridgeology Standard in particular.

The OIG believes that the utilization of more objective criteria for

identifications, if such criteria can be developed, may provide a greater margin

of safety in latent fingerprint identifications than is provided by a wholly

subjective approach in which an examiner's initial or _gut" reaction to a

corrlparison might lead him to overlook important ambiguities or differences in

the prints.

B. Revision of the Standard Operating Procedures (SOPs)

One of the Latent Review Teams conducted a detailed review of the LPU's

SOPs and made several recommendations for major revisions of the SOPs,

including:

® Defining each phase of the ACE-V (analysis, comparison, evaluation, and

verification) process in greater detail and listing and defining the step-bystep procedures involved in the examination process in greater detail;

• Adopting more specific definitions of each of the three levels of detail;

• Defining the "quality" and _quantity" aspects of examination;

• Establishing criteria to determine a latent fingerprint to be a print _'of

value," including minimum latent print quality considerations;

• Developing a consistent policy for determining and documenting '_cluster

prints" (simultaneous prints), including a requirement that at least one

area of the cluster meets the identification threshold on its own; and

197
• Elimination of the _12-point rule" that required supervisory review of

identifications made on the basis of fewer than 12 Level 2 ridge

deviations.

Recommendation 3 Based on its review of the facts of the Mayfield

misidentification and discussions with our expert consultants, the OIG

concluded that many of these Latent Review Team recommendations are

appropriate and some could help to prevent future errors of the type that

occurred here. We agree that an effort should be made to add detail to the

existing protocols/SOPs regarding the definitions and processes in each

component of ACE-V. We found that although the LPU examiners committed

methodological errors as described above in Chapter Four, the steps taken by

the examiners in this case did not specifically contravene any criterion,

recommendation, method, or prohibition set forth in the applicable LPU or

SWGFAST standards.

As previously noted, the primary documents governing the examination

of LFP 17 were the Examination SOPs (Appendix F), the SWGFAST Friction

Ridge Examination Methodology for Latent Print Examiners (Appendix G), and

the SWGFAST Standards for Conclusions (Appendix H). These documents

comprise a total of 11 pages. Much of the contents are repetitive and all of

them are stated in vague and general terms. Nothing in the existing standards

governing the LPU prohibited, discouraged, or even addressed the process of

circular reasoning by which Green apparently allowed the Mayfield exemplar to

bias his interpretation of LFP 17. Nothing in these documents prohibited an

examiner from "cherry-picking" helpful Level 3 details to support an

identification while discarding those which did not, or described the

circumstances under which Level 3 detail is sufficiently reliable to use.

Nothing in the standards required the examiners to justify their explanations

for differences in appearance between the latent and known prints on the basis

of objective information from the print or the crime scene to demonstrate any

degree of certainty with respect to such explanations, or even to document the

differences or explanations at all. Likewise, although all of the OIG consultants

agreed that lesser individualizing weight should be assigned to a Level 2 ridge

deviation found in agreement when the examiner cannot determine whether

the point is a bifurcation or an ending ridge until he sees the exemplar print,

nothing in the existing standards gives any such instruction to LPU examiners.

In short, the examiners were able to make all of the decisions described above

that contributed to the erroneous identification without violating any specific

provision of the applicable LPU or SWGFAST standards.

The OIG believes that the absence of policies or standards sufficiently

specific to have addressed the errors committed in this case led the Laboratory

to provide the ultimately unenlightening explanation in some internal briefings

that the identification was the result of "human error." Given the fact that four

198
different examiners made the same error, we believe that the more systemic

causes described in Chapter Four were in play. The fact that the examiners'

conduct contravened no existing standards suggests that more detailed and

explicit standards are needed.

A useful example of a document containing more specific standards for

conducting latent fingerprint examinations can be found in INTERPOL's

"Method for Fingerprint Identification" (Parts 1 and 2), which was designed to

accommodate both the Ridgeology Standard and the Numerical Standard for

declaring identifications. 139 We recommend that in carrying out the revision of

the SOPs, the Laboratory consult the INTERPOL Method as an example of a

standard for examinations that provides a much higher level of detail in the

description of examination steps and the application of principles of

identification than is available in the existing SOPs and the SWGFAST

Methodology and Standard.

Recommendation 4 The SOPs should be revised to explicitly require that the

examiner must achieve a degree of certainty with respect to each "explanation

_r'%1." /"I';Tf'T('_,'P'_:Z'V'_r_O,¢ "_" ,i-l,_..-.,,.,l- " ,.-._'^._- 4A._- ----.:.L1 .... ..1 " 1 ,

• _,_ u_sx_.t_.l_o ulat ia _Uli_l_teilt WlLil, _tXiU equivaien_ to, the standard of

certainty required for the conclusion of identification. Accepting explanations

that are merely plausible or reasonable, but for which the available evidence is

mixed, is not consistent with the absolute certainty claimed for latent

fingerprint identifications. Where the requisite certainty for explanations is not

achieved, the appropriate conclusion is "inconclusive" or "exclusion."

Recommendation 5 The SOPs should be revised to define the circumstances

under which the clarity of a latent fingerprint is sufficient to support the

utilization of Level 3 details to support an identification. The SOPs should also

require that the examiner consult all versions of the available known prints of

the subject to determine whether any Level 3 details utilizedto support the

identification are reliably and repeatably reproduced. The SOPs should require

that the examiner apply "fair reasoning" in utilizing Level 3 details that support

the identification so as to avoid the selective use of supporting Level 3 details.

Recommendation 6 The SOPs or other Laboratory policies should be revised to

address the circumstances under which a different forensic laboratory

disagrees with an identification decision by the FBI Laboratory to ensure that

the reasons for the disagreement are fully understood before the FBI

139 Available at http: //www.interpol.int/Public/Forensic/fingerprints/. We refer to

this document without endorsement of all of the substantive standards set forth in it, but

rather as an example of written standards containing a higher level of detail than is contained

in existing SOPs and policies.

199
Laboratory ratifies its initial conclusion. In such cases, the Laboratory should

assign new examiners to conduct a complete ACE-V examination of the

disputed print.

Recommendation 7 The OIG agrees with the Latent Review Team

recommendation that criteria be developed for the use of _cluster prints." The

OIG agrees on the need for such criteria, particularly in light of the

inconsistent statements made to the OIG regarding whether anyone at the

Spanish National Police (SNP) or the FBI Laboratory ever determined that

LFP 17 and LFP 20 were simultaneously deposited on the basis of the relative

positioning of the prints on the blue plastic bag. We found that there are no

clear or consistent standards in the LPU for declaring multiple fingerprints to

have been deposited simultaneously.

There is one aspect of the Latent Review Team recommendation that is

confusing, however. The requirement that one area of the cluster (i.e., friction

ridge detail from a single finger) meet the identification threshold standing on

its own appears to be inconsistent with a major purpose of identifying cluster

p,,,_, wl,l_l is to permit "luc_luncauon based on detail from two fingerprints -' .... "_" -_'-

where the detail in a single print is insufficient. If the recommendation is

adopted, a major reason for making a determination of cluster prints would be

eliminated and there would be much less value to developing criteria for

making such a determination.

Recommendation 8 The OIG recommends that the LPU SOPs be revised to

clarify that the _inconclusive" conclusion is available to examiners in cases

where the latent fingerprint is deemed _suitable for comparison," but the

examiner :is unable to achieve adequate certainty either as to the quantity and

quality of detail in agreement or as to the sufficiency of his explanations for

differences. The LPU examiners we interviewed stated that the usual practice

when an examiner is unable to reach a decision of identification or exclusion is

to revise the analysis and declare the latent print to be of _no value" for

identification, except in a limited category of cases. 14° The _no value"

declaration results in the latent print being discarded with no information

being shared with investigators regarding the existence of a subject who could

not be excluded as the source of the print. This practice is not fully consistent

with the SWGFAST Standards, which acknowledge that a print can be _suitable

for comparison" but an examiner can nonetheless reach an _inconclusive"

' result after comparison. For example, the examiner may find a latent print to

140The example given by several examiners for use of the use the _inconclusive" result

is when the known prints are of poorer quality than the latent. This practice is consistent with

the Laboratory's stated criteria for reaching the _inconclusive" result, which focuses on cases in

which relevant detail is absent from the exemplar print.

200
be clear enough for comparison, but determine during the comparison phase

that he lacks sufficient certainty as to the validity of possible explanations for

dissimilarities. The OIG consultants agreed that LPU should have greater

flexibility to make use of the "inconclusive" result where there is inadequate

certainty to declare a match. Use of the "_'_inconciusive" result could be

consistent with alerting investigators that there is a specific suspect who could

not be excluded as the source of a latent print. 141

Recommendation 9 The OIG concurs with the Latent Review Team

recommendation that the '_12-point rule" be eliminated. This rule is

inconsistent with the Ridgeology standard as currently utilized by the LPU. As

noted above, the Latent Review Teams have recommended research aimed at

developing and testing the validity of a minimum quantitative threshold for

effecting an identification which takes into account all levels of detail and the

clarity of the print. If such research results in the articulation of a new

objective threshold for identification, such a threshold would logically render

the 12-point ruie redundant.

_.,. zJu_ u_:;zz L_L LZOII

As noted above, the LPU standards in place at the time of the Mayfield

identification did not require any documentation of the different phases of the

ACE-V process other than the statement of a conclusion. The Latent Review

Team that examined the LPU documentation requirements recommended a

dramatic expansion of the case documentation requirements for latent print

examinations. The most important of these was the recommendation that the

LPU adopt an SOP or policy regarding the documentation of (1) characteristics

that contribute to an inclusion/exclusion during the comparison process, (2)

discrepancies/dissimilarities observed and explained during the comparison

process, and (3) Level 1, 2, and 3 details utilized during the comparison

process. The same report also recommends that: "If during the comparison

process, an 'Ident' is made, the case notes should reflect the process by which

the 'Ident' was made and the comparison details that were used. This can be

done by enlarging a photograph and annotating it with arrows, lines or other

methods to show details used."

141 The OIG concurs with the Latent Review Team recommendation for the

establishment of criteria to determine a latent fingerprint to be a print "of value," including

minimum latent print quality considerations, to the extent that this recommendation is not

construed as an endorsement of the existing practice of using the "no value" category as a

substitute for an "inconclusive" conclusion. In other words, it will be useful to develop more

specific criteria for declaring a print to be "suitable for comparison," but once having made that

determination as to a particular print, the LPU should not continue the practice of revising that

determination in cases when the examiner can neither identify nor exclude a particular subject

as the source of the print.

201
The Latent Review Team with responsibility for review of the LPU's SOPs

made similar recommendations, to the effect that the "[t]ull and complete detail

of all consistencies, explainable dissimilarities and discrepancies [should be]

documented and retained in the case file."

Recommendation 10 The OIG agrees with the Latent Review Team

recommendations for more extensive documentation requirements. The

absence of substantive documentation requirements is a conspicuous

shortcoming of the current SOPs. We believe that there is a strong possibility

that if the examiner and verifier had been required to document the analysis

and comparison phases of their examinations, they might have noticed more

dissimilarities and appreciated the cumulative impact of them before reaching

their flawed conclusions. They might also have had greater appreciation for

the low quality of the admitted similarities between the latent and the Mayfield

known prints. We believe that documentation would have facilitated a more

objective comparison and evaluation, regardless of the particular standard

utilized to declare an identification.

The avS_lC_-'-....... of any '--_ .... "--- -'--- ....... _ _'- uut_ Uiii_iiLaLiun '- requirement under b M I,Jb Lk:l.l I LiV _

existing guidelines significantly impacted the OIG's ability to determine the

cause of the Mayfield error. The mental processes and criteria utilized in

making the identification are only partially reflected in the documentation in

this case (because of the creation of charted enlargements), and in other cases

are not documented at all. No contemporaneous record exists of the

explanations accepted by the examiner for numerous dissimilarities in the

prints. We therefore had to relyprimarily on the imperfect recollection of

witnesses for this critical information and were unable to obtain the

recollection of the verifier, Massey. Although there was a good

contemporaneous record of the similarities utilized in this case, the existence of

such records was a fortunate anomaly and not the result of any policy.

The OIG believes that more rigorous documentation of the phases of the

examination process will help enhance accuracy and avoid errors like the

Mayfield misidentification by:

• Promotingcompletion of all steps in the examination process, including

the pre-cornparison analysis phase;

• Promoting reproducible application of whatever revised criteria for

identification or exclusion are ultimately adopted by the LPU, making the

identification process more transparent and controllable;

• Promoting full and explicit identification of differences in appearance

between the latent print and the exemplar, as well as greater

appreciation of the cumulative impact of multiple differences; and

202
• Facilitating review of the causes of errors.

Adoption of the Latent Review Team recommendations regarding

documentation will result in dramatic changes in the way the LPU handles

cases. The FBI Laboratory deserves credit for undertaking such a significant

reform. The documentation requirements will obviously have a major impact

on the speed with which the LPU can process cases. Thus, it is important that

the Laboratory and others appreciate that this reform cannot be achieved

without a significant increase in the LPU's manpower or reduction of the LPU's

case load, and that after this reform is adopted, the productivity of individual

examiners in the LPU cannot fairly be compared with pre-reform numbers. It

appears that additional reforms suggested by the Latent Review Teams will

address this matter at least in part by reducing the number of cases accepted

from state and local law enforcement agencies.

Recommendation 11 The OIG recommends that the FBI Laboratory consider a

refinement of the proposed changes to the documentation requirements in the

SOPs. Although the proposals regarding documentation would require

identification of the Level I, 2, and 3 features that contributed to the

examiner's conclusion, they do not appear to require any documentation of the

analysis phase. Documentation of the features and "red flags" observed during

the analysis phase will help prevent circular reasoning in which features in the

known prints can influence an examiner to find such features in the latent

print, even though they may not be there. Where feasible, a record should be

made of the analysis phase of the examination, including recording the location

and type (if known) of the features perceived at that phase. Ashbaugh

specifically recommends such documentation of the analysis phase, at least for

certain complex latent prints. 142 Creation of such a record will help assure

that the examiner assigns lesser individualizing weight to any features in the

latent print that are not discovered until after the exemplar prints are

compared, and lesser individualizing weight to a Level 2 detail found in

agreement when the examiner cannot determine whether it is a bifurcation or

an ending ridge until after he sees the exemplar print.

However, we recognize that creation of a record of the analysis phase

could be burdensome and potentially wasteful in the case of IAFIS searches

that do not result in identifications, which is a common occurrence. We

recommend the following potential solution for this problem. In the case of

IAFIS searches, the requirement to fully document the analysis could be

postponed until the examiner determines, based on a preliminary

non-exhaustive initial comparison, that one of the candidate's exemplars is

sufficiently similar to the latent print to warrant a more rigorous,

142 Ashbaugh, pp. 112-113.

203
comprehensive comparison. At that point, the SOP would require the examiner

to put the exemplar aside and complete the documentation of his analysis of

the latent print before proceeding to the comparison and evaluation phases of

the examination.

D. Verification Procedures

The Latent Review Team found that the existing verification procedures

are informal and may contribute to "confirmation bias" due to the verifier's

knowledge that another examiner in the Laboratory had already made an

identification. In response, the Latent Review Teams recommended that the

verification procedures in the SOPs be modified to require one "blind"

verification per Laboratory report, in which the initial examiner would provide

the verifier with a decoy latent print and decoy exemplar in the verification

along with the latent print and exemplar that had been matched by the initial

examiner. All other identifications in the case would be verified in the normal

manner after the blind verification is completed. Up to 10 percent of the blind

verification packages would involve "challenging" non-identifications, so that

the verifier would know there was a chance that none of the prints in his

package had previously been matched by another examiner. In addition, the

current practice that verifications are documented solely by the verifier's

signature would be modified; all verifications would be required to be

documented using the same procedures used by an examiner during an

"identification" annotation. Further, the Latent Review Team recommends that

a conflict resolution process be formalized and implemented in the LPU. The

circumstances under which this process would be invoked include cases in

which a verifier reaches a different conclusion than an examiner and resolution

cannot be accomplished by consultation between them.

Recommendation 12 The OIG concurs with the Latent Review Team

recommendations regarding verification procedures. As previously noted, the

OIG did not find sufficient evidence to conclude that the FBI's verification

procedures introduced a bias that prevented or discouraged the verifier from

challenging the initial examiner's conclusions in this case. The OIG believes,

however, that the new verification procedures recommended by the Latent

Review Team will promote more diligent and thorough examinations by verifiers

in all cases. In particular, the requirement that each verification include full

documentation of the ACE phases of the verifier's examination, and that the

similarities and explanations for differences utilized by the verifier be recorded,

will enhance thorough verifications.

204
Recommendation 13 The OIG also believes that the use of blind verifications

with decoy prints and up to 10 percent non-identifications may also promote

thorough and independent verifications. 143

We question the efficacy of the particular model of blind verification

selected by some of the Latent Review Team, however. The point of introducing

decoy prints and occasional non-identifications into the blind verification

process is to assure that the verifier is doing a careful examination and not

merely "rubber stamping" the initial identification. Under the proposal adopted

by the Latent Review Team, this benefit may be lost in a case involving multiple

identifications because the verifier will be able to tell which verification

potentially involves decoy prints and non-identifications. (These would

apparently be the first verification in each case, since the proposal states that

other verifications in the case would take place after the blind verification).

Moreover, the blind verification would be the only verification involving two

unmarked photographs of latent prints. While the verifier would clearly be

motivated to conduct a meticulous examination in the course of a blind

verification, the incentive to do so would potentially be lost in subsequent

v_i_._uu,l_ ,_ m_ same case because the venner would know they are not

"blind."

We believe that a better solution would be to submit decoy

non-identifications (latent fingerprints that do not match the exemplar) in a

small percentage of all verifications. As a result, for any comparison the

verifier would be aware of the possibility that no identification has previously

been made. We also believe that to assure independence and objectivity in the

verification process, the examiner who made the initial identification should

not be involved in selecting the decoy prints or challenging non-identifications

for use in the blind verification package'.

Recommendation 14 The OIG recommends that the LPU consider requiring a

second independent verification for those cases in which there is only one

latent print identified to a subject and the subject was identified as the result

of an IAFIS search. This circumstance, which involves an extremely narrow

category of cases but one that would have included the Mayfield case,

addresses the circumstances under which the potential for initial examiner

error may be the greatest and the consequences of the error may be especially

significant.

143 The success of this reform will depend on whether the decoy prints require

sufficiently challenging examinations to prevent the examiner from finding the previously

matched prints with a superficial comparison. One of the OIG's consultants expressed concern

that close non-matches that are challenging to exclude are rarely encountered, so that finding

such prints for use as challenging decoys in the blind verifications may be difficult.

205
Recommendation 15 The OIG recommends that the LPU give consideration to

alternatives to the use of "dispute resolution" in cases of refused verifications.

The OIG perceives a potential tension between the concept of the verification

stage as a significant screen or hurdle in the identification process and the

requirement that any disagreement by a verifier be treated as a ':conflict"

requiring "resolution." SWGFAST has stated that it is possible for two

competent examiners with differing levels of training, experience, and ability to

reach different conclusions about a comparison, such as when one examiner

finds enough detail in agreement to declare an "identification," but another

finds insufficient agreement and reaches an "inconclusive" conclusion.

According to SWGFAST, such a disagreement may not imply an error by one

expert, but rather differences in their training, experience, or ability.

The point of the verification phase is to add a layer of certainty to an

identification by requiring that two independent qualified examiners reach the

same conclusion. Invoking conflict resolution to achieve agreement between

the examiner and the verifier potentially dilutes the stringency of the

verification requirement. The LPU witnesses told the OIG that disagreements

• (" _ 1 1 ._ 1 . 1 .,_.%"r _."_

by- vermers are aireaay ex_remexy runusuai, which suggests to the ul_ that the

verification phase may not be a significant screen in the identification process.

Requiring conflict resolution in those rare situations may undercut the

independence of the verification step by allowing the verifier in some cases to

be "talked into" agreement with the examiner through conflict resolution,

particularly if the alternative is for the verifier to be formally adjudged "wrong"

at the conclusion of the process. 144

The OIG recommends that the LPU consider alternatives to treating

refused verifications as potential errors requiring resolution. For example, the

LPU could respond to such rare cases by requiring a full examination and

verification by different examiners not previously involved with that

identification. In other words, refused verifications would require a new

examiner to start over with the examination.

E. Training

One of the Latent Review Teams assessed training requirements in the

LPU and found that the existing LPU training program is deficient in conveying

the theoretical underpinnings of friction ridge uniqueness. The team made

several recommendations to the Laboratory for action, including:

z44 This tension is already present under existing procedures, which require that

refused verifications be resolved by a supervisor or Unit Chief.

206
• Contracting with an external source to provide comprehensive friction

ridge theory and ACE-V training to the LPU, with testing of all attendees

in each element of the training;

• Preparing a friction ridge theory and ACE-V training module for future

training;

® Incorporating Ashbaugh as required reading in the training module; and

• Increasing attendance of FBI examiners at International Association for

Identification (IAI) conferences.

The OIG agrees that enhanced training could help the LPU avoid

erroneous identifications in the future. We believe that the misidentification of

LFP 17 provides a useful case study in support of several specific principles of

latent print identification that should be emphasized in the training including:

(1) the need to complete the analysis prior to the comparison phase in order to

avoid circular reasoning; (2) the need to assess similarity in terms that go

beyond directions and ridge counts, taking into consideration the distances

between points and along ridges; (3) the circumstances under which Level 3

detail should be deemed reliable; and (4) the need to apply the same degree of

certainty with respect to explanations for each difference in appearance

between prints that is required for declaring an identification. The OIG notes

that a second updated training may have to be implemented if the LPU's stated

plans for future research for modification of the SOPs results in significant

changes to the standards for identification, such as by utilizing more objective

standards for identification.

II. Review of Prior IAFIS Identifications from Digital Prints

In response to the misidentification of LFP 17, the LPU undertook a

review of all cases resulting in a latent print identification from an IAFIS search

in which the latent print was a digital image (e.g., submitted to the LPU on

compact disks or diskettes or submitted via e-mail or facsimile), where no

original evidence was received by the laboratory. According to a Summary

Report prepared by the FBI Laboratory, 16 latent fingerprints meeting these

criteria have been identified from IAFIS searches, or slightly more than 1

percent of all prior identifications from IAFIS searches. According to a

memorandum prepared by LPU Unit Chief Meagher describing this review,

each such identification was reexamined by a different examiner with no

knowledge of the original examiner's conclusions.

207
The Laboratory reported that upon reexamination, all 16 latent

fingerprints were again identified with the same finger of the same person as

originally reported. In other words, no false positives were detected. In

addition, as a result of this reexamination, three additional latent fingerprints

included in the same Laboratory submissions were identified by means of an

IAFIS search.

The Laboratory's decision to conduct a reexamination of this small

category of IAFIS identifications was made shortly after the Mayfield error was

detected. As noted earlier, for a short period of time the Laboratory publicly

stated that the error was attributable at least in part to the allegedly degraded

quality of the digital images made available to the FBI by the SNP. As

previously explained in Chapter Four, the OIG determined that these factors

were not major contributing causes of the erroneous identification. None of the

Laboratory personnel interviewed by the OIG attributed the error to the quality

of the digital images of LFP 17 utilized by the Laboratory to identify Mayfield,

and neither did any of the members of the International Panel or any of the

OIG consultants.

It therefore appears that the Laboratory's reexamination project, while

commendable in purpose and intent, was so limited in scope as to not be

responsive to any significant cause of the Mayfield misidentification. If the use

of digital images did not cause the error, then the reexamination of a handful of

cases that were based on identifications of digitally submitted prints will not

address the root cause of the misidentification.

Recommendation 16 The Laboratory should consider a broader category of

IAFIS identifications for reexamination. The factors that the International

Panel and the OIG found to be causes of the misidentification could have

affected identifications in a larger category of cases than those involving digital

images. The OIG is not necessarily recommending reexamination of every FBI

Laboratory identification that resulted from an IAFIS search, which would

involve approximately 1,200 latent print identifications. One useful narrowing

criterion for the Laboratory to consider would be cases in which the

identification of a criminal suspect was made on the basis of only one latent

fingerprint searched through IAFIS. We recognize that when a suspect has

been identified from two or more latent prints, the likelihood of error arising

from a confusingly similar non-match would appear to be much smaller. The

criterion we are suggesting for reexamination would therefore focus on a

category of cases, like the Mayfield case, in which the existing safeguards

against an erroneous identification based on a confusingly similar non-match

are not as great.

208
III. Capital Case Review

The Laboratory and the Criminal Division of the Department of Justice

began a monthly "Capital Case Review" of prisoners awaiting execution to

determine whether the LPU conducted a fingerprint identification in the case

for which the individual was sentenced to be executed, or in an earlier case

which may have been an aggravating factor in the death penalty phase. If such

a case is identified, the relevant latent print identification will be reviewed for

accuracy. To date, no such case has been identified.

Recommendation 17 The OIG recommends that the FBI consider continuing

the monthly Capital Case Review or adopting another procedure sufficient to

accomplish the same objective. LPU Unit Chief Wieners told the OIG that the

administrative burden of determining whether an upcoming execution is

related to an LPU identification is small. The apparent purpose for the review

is the possibility, however remote, that other misidentifications might have

occurred in prior capital cases. The only basis that the OIG can identify for

suspending this effort would be if its investigation of the Mayfield case revealed

J-l_ _J- ^_C _.! "_ AI'__ J_'" _1 ..1 1 1

Lt_L the causes u_ me _v_ayn_m error couia not have resulted in any other

misidentifications. The OIG believes that the circumstances in the Mayfield

case -especially the close (but not perfect) agreement in the relative location of

as many as 10 Level 2 ridge deviations and the ridge counts between themare probably extremely unusual, but we cannot say with certainty that such

circumstances were never present in any other case. The methodological

errors that the OIG identified, such as circular reasoning and rationalizing

differences in appearance, could occur in other cases. Therefore, the OIG

recommends that the Capital Case Review procedure continue or that another

procedure sufficient to accomplish the same objectives to be adopted.

IV. Corrective Action

Section 7.1 of the FBI's LPU Quality Assurance Manual,

Technical/Casework Review (Revision 2, issued June 2, 2003) (Manual),

describes three types of errors requiring corrective action:

® Administrative errors (those errors resulting from clerical operations,

sample or specimen confusion, or documentation deficiencies that did

not result in an analytical error);

• Systematic errors (those errors determined to be due to equipment,

material, techniques, or environmental influences); and

• Analytical/interpretive errors (those errors resulting in a significant

discrepancy, such as an erroneous identification or a missed

209
identification, determined to be the result of an analytical or interpretive

deficiency).

The FBI Laboratory categorized the Mayfield fingerprint misidentification

as an analytical/interpretive error, the most serious category of error. For this

type of error, the Manual requires that the error be "discussed and/or

documented with the Examiner to determine how and why the wrong

conclusion was reached." The Manual further states that four actions may be

taken with respect to the responsible examiner: (1) immediate removal from

conducting casework, (2) complete technical review of the examiner's past

cases, (3) proficiency testing, and (4) training. The Manual further requires

that the Unit Chief review the examiner's future casework until satisfied that

the discrepancy does not reoccur. According to the FBI Laboratory, corrective

action is intended to remediate or rehabilitate the examiner and to improve a

deficiency, and should not be considered punitive. The LPU Quality Assurance

Manual states that disciplinary action can be taken in addition to the actions

listed above if deemed necessary.

The corrective measures taken by the FBi Laboratory with respect to the

three examiners involved in the misidentification of LFP 17 (Green, Massey,

and Wieners) are described and evaluated below.

Providin_ Written Explanation for the Error. On May 27, 2004, all three

examiners provided a written acknowledgement of the error and an explanation

of why the error occurred. Green's written explanation stated:

On May 19, 2004, I became aware of the Spanish National Police

report. After reviewing my original analysis of Latent 17, I

determined that I was in error in concluding that it was of value for

comparison. I should have made an initial decision that Latent 17

is not of value for comparison purposes, not only because of the

quality of the image, but that there was no background

information about the image to aide [sic] in my findings of

explainable dissimilarities.

Wieners' written explanation stated: "After careful analysis, I determined

that latent fingerprint # 17 should have been declared of no value for

identification purposes. I believe the cause of my error was an insufficient

analysis of latent fingerprint # 17."

Massey's written explanation stated:

My original decision was based on the poor quality of the latent

print and the appearance of it having several lines of separations.

This could have been caused by the item that the latent print was

210
on or the possibility of several touches of a finger or fingers. Based

on the lack of quantity and quality of the characteristics in any of

the areas in the latent print I determined that this latent print was

of no value for identification.

The OIG found these written explanations to be insufficiently specific or

detailed to provide any useful information regarding how or why the error

occurred, and in some cases they were misleading. Green's reference to the

"quality of the image" was inappropriate because as of May 27, the day he

made the statement, neither he nor anyone else in the FBI Laboratory had ever

seen a better image than the one that had been used to identify Mayfield. As

discussed in Chapter Four, Section II.D.2, the digital image used to identify

Mayfield satisfied all applicable FBI Laboratory standards for resolution and

was of sufficient quality for comparison. Moreover, Green's reference to the

"absence of background information" did not explain what information was

missing and how it would have made a difference. As previously noted, we

found that the FBI's lack of access to the evidence on which the fingerprint was

found didmot cause the error.

Wieners' statement that the error was caused by "insufficient analysis"

was not misleading, but it provided too little information regarding the causes

of the error to be helpful in preventing future errors of the same type. As

detailed in Chapter Four, Section II.A.2, the OIG found that the

misidentification was caused in part by bias from the examiner's review of

Mayfield's known fingerprint, whicti might have been prevented had the

examiner been required to complete his analysis of the latent fingerprint and

identify alt:,_clearly discernible features before conducting a detailed

comparisoh. However, Wieners did not provide even that degree of elaboration

to his explanation, merely stating that the analysis was "insufficient," Without

detailing where it _vas deficient and how this led to an erroneous conclusion.

Massey's memorandum was unsigned and could have merely been a

draft. As written in the version provided to the OIG, the statement made no

sense. The memorandum stated Massey based his original decision (which was

to verify the identification) on the "poor quality of the latent print" and that he

determined that the latent print was of no value for identification. Massey

obviously considered the print to be "of value," because he verified the

identification. Moreover, as noted above, we found that the quality of the latent

print was not a cause of the misidentification.

Further, the statement by all three examiners that they erred in

declaring the latent print to be "of value for identification" is unsatisfactory for

all of the reasons set forth in detail in Chapter Four, Sections II.D.3 and 4.

211
These statements cannot be meaningfully reconciled with the LPU's

subsequent identification of LFP 17 as the fingerprint of Daoud.

The OIG believes that the deficiency in the examiners' written statements

may have been related to the haste in which they w-ere prepared. All of them

were dated May 27, just days after the error was discovered and the original

identification had been withdrawn. However, this does not excuse the

misleading, inaccurate, and incomplete explanations that were provided.

Recommendation 18 We recommend that the Laboratory require more detailed

written explanations in the future for any analytical/interpretive errors,

triggering the documentation requirement in the LPU Quality Assurance

Manual. Further, the OIG questions the FBI's practice of assigning primary

responsibility for documenting the causes of the error to the examiners who

committed the error, because these examiners are likely to lack objectivity. As

it was implemented in this case, the documentation requirement in the FBI

LPU Quality insurance Manuai was an empty exercise. The Quality Assurance

Manual requires that the error be "discussed and/or documented with the

exarr.iner," --" ..... :'-" by _ vv_ ueuev-e uiat examiners _'- --

ouiei

than those who committed the error should be responsible for determining the

causes and that their findings should be presented orally or in writing to the

examiners who committed the error.

Removal from Casework. All three examiners were suspended from

performing casework on May 28, 2004, shortly after the error was discovered.

Green and Wieners were cleared to return to casework on August 13, 2004,

after completion of the other aspects of the corrective action plan. Both are in

supervisory positions. Wieners is a Unit Chief and Green is the supervisor of

the LPU's Technology Development and Support Group. According to the Chief

of the FBI Laboratory's Quality Assurance and Training Unit, although Green

and Wieners have been cleared to return to performing casework, neither has

performed any casework since being suspended.

Massey is no longer on contract with the FBI. He worked for the FBI

Laboratory as a contractor from June 23, 2003, through June 10, 2004.

According to the Contracting Agent's Technical Representative for the contract,

Massey's contract was not renewed because of budgetary reasons, not because

of his role in the Mayfield fingerprint error. A modification to his contract

dated February 3, 2004, specified that at the conclusion of the contract period

services would no longer be required for the remaining contract years.

Technical Review of the Examiners' Past Cases. The LPU's Standards

and Practices Group conducted technical reviews of 10 of Green's prior cases,

212
10 of Wieners' prior cases, and 29 of Massey's prior cases. 145 The purpose of

the review was to determine whether, in those prior cases, the fingerprint

examinations were properly conducted, examination notes and results were

properly reviewed, and proper conclusions were rendered. Specifically, the

reviewers performed an ACE-V check of the fingerprint comparisons done by

the examiner and reviewed all of the associated documentation.

They completed their technical review on July 16, 2004. The LPU

reviewers found no errors in Wieners' and Massey's selected cases. However,

the reviewers found 1 error in 1 of Green's 10 selected cases. The LPU's

technical review found that in a bank fraud case Green handled in July 2000,

Green had correctly identified prints on financial records connected with two

different aliases of the subject of the investigation. However, he had failed to

correctly identify fingerprints on financial records connected with one of the

subject's other six aliases. The technical review determined that Green's

processing and analysis of the latent fingerprint was satisfactory, but found

errors in Green's comparison and evaluation of the latent and known

fingerprints. The impact of the error was determined to be minor because the

subject was connected to the crime by the other fingerprints. This error

differed from the Mayfield error in that it was a false negative (missed

identification), not a false positive (misidentification).

Proficiency Testing. A proficiency test obtained from an independent

testing service, Collaborative Testing Services, was administered to the three

examiners in June and July 2004. According to the chief of the FBI

Laboratory's Quality Assurance and Training Unit, all three examiners passed

the proficiency test with no errors.

Training Exercise. The 3 examiners were provided with a training

exercise developed internally, which consisted of a simulated case requiring

1,068 fingerprint comparisons. The examiners completed the training

exercises in June 2004. All three examiners successfully performed the

exercise.

Disciplinary Action. According to the FBI Laboratory Section Chief in

charge of the LPU, FBI laboratory management has concluded that no

disciplinary action beyond the corrective action described above is required

145 For Green and Wieners, the prior cases selected for review included all of the cases

in which these examiners had made identifications in the past 5 years, plus a random

sampling of cases involving non-identifications, to assure that at least 10 cases were reviewed

for each examiner. Because, as supervisors, Green and Wieners performed a limited amount of

casework, the reviewers had to go back five years to find a sufficient number of identifications

to review. For Massey, the prior cases selected for review included all of the 29 cases that

Massey worked on since his hire as a contractor in June 2003.

213
against Green or Wieners. According to LPU management, the corrective action

process and the quality assurance process, both of which are part of the

accreditation process, constituted sufficient action against Green and Wieners

with respect to the error. Management's review of the error determined that

the misidentification was a mistake and not intentional or due to negligence,

and therefore disciplinary action was not required. Massey was a contractor

and therefore disciplinary action was not possible.

Reaccreditation of the FBI Laboratory by ASCLD/LAB. American Society

of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB)

requires its accredited laboratories to have written procedures in place for

reviewing instances where there are indications of a significant technical

problem or where there are concerns regarding the work of an examiner. The

LPU corrective action procedures described are intended to comply with this

requirement. At the time of the Mayfield fingerprint misidentification, the FBI

Laboratory's accreditation was in the process of being renewed. When the

fingerprint misidentification was identified, ASCLD/LAB initiated an interim

inspection focusing exclusively on the Mayfield fingerprint misidentification

a_u on LnCcorrective --_'-_ - a_uuns taken by the _1 in response to the error. On

November 23, 2004, the ASCLD/LAB Board of Directors informed the FBI

Laboratory that %he Board is satisfied that appropriate corrective actions have

been taken with the individuals involved in this matter and that appropriate

actions have been taken with regard to the prior work of these individuals."

ASCLD/LAB subsequently renewed the FBI Laboratory's accreditation.

The OIG's Evaluation/Analysis of the FBI's Corrective Action. Upon

discovery of the error, the FBI quickly moved to implement its corrective action

procedures. In some respects, the OIG found that the FBI's corrective action

was both comprehensive and timely. For example, the Laboratory quickly

implemented a timely review of the examiners' past cases and conducted

retraining and proficiency testing.

However, as noted above, the OIG found that the written explanations for

the error prepared by the examiners were conclusory and unenlightening as to

the causes of the error. We believe that the FBI should have required a more

comprehensive explanation of the causes of the error and should have

considered using examiners other than those involved in the misidentification

to determine and document the causes of the error.

The OIG also reviewed the Laboratory's determination that no discipline

of the examiners was required beyond the corrective actions described in this

chapter. An assessment of the FBI Laboratory's decision not to impose

disciplinary action on Green or Wieners requires a specific review of the

performance of these individuals with respect to the examination of LFP 17. As

detailed above, we determined that the misidentification of LFP 17 resulted

214
initially from the unusual similarity between some friction ridge details on

Mayfield's finger and some details on Daoud's finger that were imperfectly

reproduced in the latent fingerprint, but the examiners made several significant

mistakes and failed to apply principles of latent fingerprint identification that

could have prevented the error. However, we did not find evidence that any

examiner in the Laboratory committed intentional misconduct.

Moreover, although the methodological errors described in Chapter Four

represent, in part, performance deficiencies attributable to Green, Massey and

Wieners, we did not find any conduct by these examiners that specifically

violated explicit FBI Laboratory SOPs or policies. As noted above, some

important principles of latent fingerprint examination that are described in the

relevant literature are not spelled out with any specificity in the SOPs or related

SWGFAST Standards. We cannot state with certainty that other examiners in

the FBI Laboratory, acting in compliance with existing Laboratory policies and

procedures, would not have made the same error. Imposing discipline on

Green and Wieners would, to some extent, unfairly single them out for actions

that we believe were consistent with the Laboratory's prevailing practices at the

time.

However, as discussed above, we believe that the examiners made

significant errors that were partly the cause of the identification. The FBI

Laboratory told the OIG that it assessed the performance of Green and Wieners

in late August and early September 2004 and issued a rating of "Does Not Meet

Expectations" for both employees based on the misidentification of LFP 17. We

address the individual performances of the three FBI examiners involved in the

misidentification of LFP 17 in turn below.

Green. As the original examiner, Green was responsible for conducting

the IAFIS search and the ACE-V examination of LFP 17. We found that Green's

IAFIS search of LFP 17 was competent. Indeed, as noted above, Green's initial

interpretation of ambiguous features in the fingerprint for the purpose of

encoding the print for an IAFIS search later proved to be highly accurate when

the known prints of Daoud were discovered. Green's encoding was designed to

induce IAFIS to locate the closest possible matches to LFP 17 from over 470

million prints within the FBI's databases. The fact that IAFIS found a

confusing similar non-match (Mayfield) actually reflected a successful effort at

encoding the print.

Green was responsible, however, for conducting the detailed comparison

of LFP 17 to Mayfield's prints, and he was the examiner who initially committed

the methodological errors described in Chapter Four, such as applying circular

reasoning, accepting explanations for differences in appearance with

insufficient support, and relying on ambiguous Level 3 details. These errors

did not specifically violate FBI procedures and did not represent intentional

215
misconduct. The FBI conducted a performance assessment of Green, as

described above, and we agree that no further discipline of Green is warranted

in this case.

We were troubled by the fact that Green not only misidentified Mayfieid's

fingerprint, but also was subsequently found to have made an error on a

previous case. Although the error relating to the prior case was not significant

on its own, its occurrence in combination with the Mayfield misidentification

should raise a red flag for Laboratory management. As noted above, the

technical review covered all of Green's casework over the past five years. Green

made identifications in seven cases during that period. This means that,

including the Mayfield case, Green made errors in two of eight cases in which

he made identifications. Accordingly, we believe that the FBI should consider

whether Green should perform any future casework. We note that under

Green's current assignment within the LPU's reorganized structure he is no

longer responsible for casework. He now serves in the Technology Development

and Support Group, which is responsible for managing the IAFIS program,

including conducting research of IAFIS technology and other automated

programs, providing training of iAFIS and other programs, and providing

operational support to the LPU. Given Green's expertise in using IAFIS, which

was demonstrated in thiscase, we believe that his current assignment is not

inappropriate.

Massey. As verifying examiner in this case, Massey was required to

conduct a complete and independent ACE-V examination. Because there was

no requirement that the steps of the examination be documented, and Massey

declined to be interviewed, we could not specifically determine whether Massey

fulfilled this requirement. The available evidence, consisting of the statements

of other examiners in the FBI Laboratory, indicates that Massey was a

meticulous examiner and there is no evidence that he "rubber stamped"

Green's conclusion identifying Mayfield as the source of LFP 17. We therefore

believe that it is likely that Massey committed similar methodological errors to

those committed by Green and have no reason to believe the error resulted

from intentional misconduct. In any event, Massey retired as an FBI employee

and his status as a contract examiner was not renewed, so the issue of

disciplining Massey is moot.

Wieners. There was no FBI Laboratory SOP or other policy that required

Wieners, as Unit Chief, to verify the identification of LFP 17. However, Wieners

told the OIG that he reviewed the identification at the time it was made and

discussed it with Green and Massey. In addition, Wieners reviewed the

identification again in preparation for the April 22 meeting with the SNP. He

was emphatic in accepting responsibility for the misidentification.

216
We found that Wieners did not, and was not required to, conduct a

complete and independent ACE-V examination of LFP 17. Therefore, his role in

the methodological errors that contributed to the misidentification of LFP 17

was lesser than those of Green and Massey. Nevertheless, in reviewing the

identification with Green and Massey, Wieners had an opportunity to

determine, among other things, whether there was adequate support for the

explanations that Green and Massey adopted for the differences in appearance

between LFP 17 and the Mayfield print. Indeed, Wieners told us that one of

those differences gave him "heartburn from the get-go." We found that, like

Green and probably Massey, Wieners did not apply a sufficiently stringent

standard of certainty for these explanations. Wieners was also aware of the

use of Level 3 detail in making the identification (having used those details to

explain the identification to the SNP), and therefore made the same errors that

Green did in relying on such details in a print of dubious clarity. Wieners'

errors, like Green's, did not specifically violate FBI procedures and did not

represent intentional misconduct. The FBI conducted a performance

assessment of Wieners, as described above, and we agree that no further

discipline of Wieners is warranted in. this case. We also note that Wieners

I .... .-,11 ___ . 1 1 1_ 1

pl_ty_u a t:ummenc_ao_ roie in recognizing the error after the bl_' zctentified

Daoud and in alerting the United States Attorney's Office of his concerns with

the original identification quickly thereafter.

V. Conclusions Regarding the FBI Laboratory's Responses

The OIG found that the FBI Laboratory has taken many significant steps

in response to the discovery of the misidentification of LFP 17. We concur with

many of the reforms that the Laboratory intends to implement, particularly

with respect to the development of more objective criteria for declaring

identifications, revision of the SOPs to provide greater detail and more specific

procedures, and establishment of meaningful minimum documentation

requirements for identifications. In addition, we recommend that the FBI

Laboratory consider the following additional steps.

1. Research The FBI Laboratory should consider shifting at least some

of the emphasis on planned research of Level 3 detail from the issue of

permanence to the issue of reproducibility, and defining the circumstances

under which Level 3 detail should be utilized.

2. Explanations for Differences The Laboratory's SOPs should be

revised to explicitly require that the examiner must achieve a degree of

certainty with respect to each "explanation for differences" that is consistent

with, and equivalent to, the stringent standard of certainty required for the

conclusion of identification.

217
3. Use of Level 3 Detail The SOPs should be revised to define the

circumstances under which the clarity of a latent fingerprint is sufficient to

support the utilization of Level 3 details to effect the individualization. The

SOPs should also require that the examiner consult all versions of the available

known prints of the subject to determine whether any Level 3 details utilized to

support the identification are reliably and repeatably reproduced. The SOPs

should require that the examiner apply "fair reasoning" in utilizing Level 3

details that support the identification but explaining those which do not as

mere distortions, so as to avoid "cherry-picking" of selected supporting Level 3

details.

4. Disagreements bv other Laboratories The SOPs or other Laboratory

policies should be revised to address the circumstances under which a different

forensic laboratory disagrees with an identification decision by the FBI

Laboratory to ensure that the reasons for the disagreement are fully

understood before the FBI Laboratory ratifies its initial conclusion. In such

cases the Laboratory should assign new examiners to conduct a complete

ACE-V examination.

5. Use of "Inconclusive" Conclusion The Laboratory should revise the

LPU SOPs to clarify that an "inconclusive" conclusion is available to examiners

in cases in which the latent fingerprint is deemed "suitable for comparison" but

the examiner is unable to achieve adequate certainty, either as to the quantity

and quality of detail in agreement or as to the sufficiency of his explanations

for differences.

6. Documentation of Analysis Phase The Laboratory should require

documentation of the features and "red flags" observed during the analysis

phase of the ACE-V process, including recording the location and type (if

known) of the features perceived at that phase. Documentation of the analysis

phase will help prevent "circular reasoning" of the type that contributed to the

misidentification of LFP 17.

7. Blind Verifications The Laboratory should consider an alternative

process for blind verifications to the one recommended by the Latent Review

Teams. We believe that a better solution would be to submit decoy

non-identifications (latent fingerprints that do not match the exemplar) in a

small percentage of all verifications, so that for any comparison the verifier is

aware of the possibility that no identification has previously been made.

8. Blind Verifications To assure independence and objectivity in the

verification process, the examiner who made the initial identification should

not be involved in selecting the decoy prints or challenging non-identifications

for use in the blind verification package.

218
9. Second Verifications The Laboratory should consider requiring a

second independent verification for those cases in which there is only one

latent print identified to a subject and the subject was identified as the result

of an IAFIS search.

10. Refused Verifications The Laboratory should consider an alternative

to treating refused verifications as potential errors requiring dispute resolution.

Instead, the LPU could respond to such rare cases by requiring a full

examination and verification by different examiners not previously involved

with that identification.

11. Reexamination of Prior Identifications The Laboratory should

consider a broader category of prior IAFIS identifications for reexamination.

Specifically, we recommend that the Laboratory consider a review of prior cases

in which the identification of a criminal suspect was made on the basis of only

one latent fingerprint searched through IAFIS.

12. Corrective Action Procedures The Laboratory should revise its

corrective ^ _" _'- "_-;" _ ............ ,_ .4 -....... ,_. -_ etcuun pluceume_ to require more cumpl_nenslv_ cu_a_ys_ and

meaningful documentation of the causes of any errors. The Laboratory should

consider using examiners other than those involved in the misidentification to

determine and document the causes of the error.

219
[BLANK PAGE]

220
CHAPTER SIX

OFFICE OF THE INSPECTOR GENERAL'S ANALYSIS OF THE

INVESTIGATION, ARREST, AND CONFINEMENT OF MAYFIELD

This chapter of the report analyzes the FBi's investigation and

subsequent arrest of Mayfield after the FBI Laboratory concluded that

Mayfield's fingerprint was on the evidence linked to the Madrid train bombings.

As described in Chapter Two, the FBI conducted electronic surveillance and

physical searches during the Mayfield investigation pursuant to the Foreign

Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. § 1801 et seq., and,

along with the Portland United States Attorney's Office (U.S. Attorney's Office),

obtained a material witness arrest warrant for Mayfield. In this chapter, we

examine the FBI's use of FISA to conduct electronic surveillance and physical

searches. We specifically assess the impact of the Patriot Act on the FBI's use

of FISA in the Mayfield case and on other aspects of the investigation of

Mayfield. We also examine the role of Mayfield's religion in the investigation

and the representations made by the FBI in seeking a material witness and

criminal search warrants. In addition, we discuss the problems the FBI

........ t._._ ..1 _ _ _1.. _.:. _ _--

_.,_uul_L_leu in c_nuucung the surveillance and searches, we also examine the

affect of the media leaks in Mayfield's arrest. Finally, we address the

conditions under which Mayfield was confined as a material witness.

I. Analysis of the FBI's Use of FISA and the Patriot Act

An issue that has received much public discussion in connection with

the Mayfield investigation is whether the FBI used any provisions of the Patriot

Act in conducting the FISA surveillance and searches. 146 To address this issue,

in this section we summarize the pertinent Patriot Act provisions and our

analysis of whether, and how, these provisions affected the surveillance and

searches conducted by the FBI in the Mayfield investigation. We also discuss

the impact of the Patriot Act on the FBI's use of National Security Letters

(NSLs) to gather information about Mayfield. Finally, we discuss.how the

Patriot Act amendments affected the sharing of information gathered about

Mayfield between government criminal and intelligence personnel.

146 After the terrorist attacks of September 11,2001, Congress passed the Uniting and

Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism Act of 2001 (the Patriot Act), which significantly amended some of FISA's provisions.

221
A. The Impact of the Patriot Act Amendments on the FISA

Surveillance and Searches of Mayfield

In this section, we discuss Sections 218 and 504 of the Patriot Act, the

amendments to _ ISA that removed barriers separating criminal and

intelligence investigations. We examine whether those amendments affected

the government's decision to seek FISA authority to conduct covert searches

and surveillance of Mayfield. We then evaluate whether, in conducting the

covert surveillance and searches, the government made use of other Patriot Act

provisions. Those include provisions affecting the time limits for electronic

searches and surveillance, the standards for obtaining pen register and trap

and trace information, authorization for "roving wiretaps" under FISA, and

provisions authorizing delayed notification of the execution of criminal search

warrants (sometimes referred to as "sneak and peek" searches).

1. Sections 218 and 504 of the Patriot Act

a. The "Primary Purpose" test and the "Wall"

When originally enacted in 1978, FISA required a certification that "the

purpose" of the requested surveillance was to gather foreign intelligence

information. Although Congress anticipated that evidence of criminal conduct

uncovered during FISA surveillance would be provided to criminal

investigators, the statute did not specify the circumstances under which such

information would be made available to them for use in a criminal

investigation. As a result, in interpreting FISA, the Department of Justice

(DOJ) and courts applied the "primary purpose" test. This allowed the use of

FISA information in a criminal case, but only if the primary purpose of the

FISA surveillance or search was to collect foreign intelligence information,

rather than to conduct a criminal investigation. See United States v.

Troung Dinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v. Johnson,

952 F.2d 565 (1 st Cir. 1991), cert. denied, 506 U.S. 816 (1992). In addition, the

FISA Court could reject an application for a FISA warrant because of concerns

that the government's purpose for seeking the warrant was for use in a

criminal case rather than collecting foreign intelligence. 147

The underlying rationale for the "primary purpose" test related to the

standards of proof the government must meet in order to obtain permission to

conduct surveillance. These standards are different in a FISA case than in a

14v For a description of the requirements of FISA and how they were interpreted by the

Department of Justice and the courts prior to the Patriot Act, see the OIG's report entitled

"Review of the FBI's Handling of Intelligence Information Related to the September 11 Attacks,"

(OIG's 9/11 Report) at pages 44-53.

222
criminal case. For example, to obtain authority for FISA surveillance of a

particular telephone line, the government must show probable cause to believe

that the target is an agent of a foreign power and that the target uses that

telephone line to communicate. 50 U.S.C. § 1805(a)(3). In contrast, in a

criminal case the government must show that there is probable cause to

believe that an individual is committing, has committed, or is about to commit

a particular criminal offense specified by statute and that particular

communications about that offense will be obtained through the interception.

18 U.S.C. § 2511.

The interpretation and implementation by the courts and the

Department of Justice of the "primary purpose" test had the effect of limiting

coordination and information sharing between foreign intelligence and criminal

law enforcement personnel. Because the courts evaluated the government's

purpose for using FISA partly by examining the nature and extent of

coordination between intelligence and law enforcement officials, the more

coordination that occurred, the more likely that courts would find that law

enforcement, rather than foreign intelligence, was the primary purpose of the

•_i_o_ su v_._nce or _u. Beginning in the "_°_-• _ous, the Department of

Justice developed procedures that limited the circumstances under which

information from intelligence investigations could be shared with criminal

prosecutors and criminal law enforcement personnel. As a result, a "wall"

developed between Department intelligence personnel and criminal personnel

that limited information sharing. In addition, while pre-Patriot Act

FISA-derived information could be shared freely with foreign intelligence

agencies such as the Central Intelligence Agency (CIA) and the National

Security Agency (NSA), that same information could not be shared with

criminal law enforcement officials without consultation and approval from

senior officials in the Department of Justice. As described below, Sections 218

and 504 of the Patriot Act now allow the sharing of that information without

prior approval. 14s

b. How Sections 218 and 504 of the Patriot Act

facilitated the removal of the "wall"

Section 218 of the Patriot Act amended FISA to replace the phrase "the

purpose" with the phrase "a significant purpose." Accordingly, the government

can now obtain a FISA warrant by showing that the collection of foreign

intelligence information is a "significant purpose" of the investigation rather

than the "primary purpose" as under the previous standard. In addition,

Section 504 of the Patriot Act amended FISA to specify that intelligence

14s For a more extensive discussion of the development and effect of "the wall" on prePatriot Act information sharing, see pages 21-44 of the OIG's 9 / 11 Report.

223
investigators conducting FISA surveillance or searches may consult with

criminal investigators to coordinate efforts to investigate or protect against

international terrorism.

These amendments to FiSA eliminated the need for courts to compare

the relative weight of foreign intelligence versus criminal law enforcement

purposes, which has allowed for more coordination and sharing of information

between intelligence officials and law enforcement officials and an increase in

the use of FISA warrants. Before the passage of the Patriot Act, law

enforcement officials had to determine whether to seek FISA authority to gather

intelligence (which could make it difficult to later pursue a criminal case), or

forgo the use of FISA in order to best preserve the potential for a criminal

prosecution. Sections 218 and 504 eliminated the need for law enforcement

officials to make a choice at the outset of a case which presents both

intelligence and criminal aspects.

c. Effects of Sections 218 and 504 on the decision to

seek FISA searches and surveillance in the

Mayfield case

We attempted to determine whether these Patriot Act amendments

affected the Mayfield investigation. In particular, we sought to determine

whether, prior to the enactment of the Patriot Act, the government likely would

have used FISA to conduct covert searches and surveillance of Mayfield. In

addition, we evaluated whether the government could have obtained identical

FISA authority under the more rigorous pre-Patriot Act primary purpose

standard. Because of Section 218 of the Patriot Act, the government did not

have to certify that intelligence gathering was "the purpose" of the

investigation. Instead, the FISA application submitted in the Mayfield

investigation contained a certification that a "significant purpose" of the

requested surveillance and searches was to obtain foreign intelligence

information.

In reviewing these issues, we interviewed witnesses from the FBI and

Office of Intelligence Policy and Review (OIPR) who worked on the Mayfield

matter and had both pre-Patriot Act and post-Patriot Act experience. All these

witnesses stated that even in a pre-Patriot Act environment in which "the wall"

was still in place, the government would have treated the Mayfield matter at

the outset primarily as an intelligence case rather than a criminal case.

For example, the OIPR Attorney, who assisted in the preparation of the

emergency FISA application and the subsequent written FISA application in the

Mayfield case, told us that the Mayfield fingerprint match and its nexus to the

Madrid bombings was an extremely "disconcerting piece of information and you

would want to gather intelligence to find out what [Mayfield] was doing in the

224
United States, who he was talking to and what he was saying, who his contacts

were. ", The OIPR Attorney said that the Mayfield matter was a classic

intelligence-gathering case and that a FISA warrant was the best tool for

obtaining intelligence both before and after the Patriot Act.

FBI officials held the same view. Arthur Cummings, the FBI Section

Chief of International Terrorism Operations Section I (ITOS I), stated that the

principal objective of the Mayfield investigation initially was to gather as much

information as possible to determine if Mayfield was a threat to the United

States. He said that the FBI would have proceeded with a FISA application

even if the Patriot Act had not been enacted. Similarly, Gary Bald, Assistant

Director for the Counterterrorism Division (CTD) and now the Executive

Assistant Director, said that the FBI was trying to determine who Mayfield was,

whether he had any associates, and whether there would be any subsequent

terrorist attacks in the United States. The Portland SSA who headed the

Portland investigation stated that she believed the government would have

proceeded with the FISA application and would have initiated a parallel

criminal investigation separated from the intelligence investigation by "the

win,. _xi_u_ the witnesses sta -" " ^" -_ tn_ primai_y- purpose at _'_- ted that _' - t_ outset of the

Mayfield investigation was to collect foreign intelligence information and that

the prospect of criminal prosecution of Mayfield was incidental.

In addition, some of the witnesses expressed doubts that the government

could have obtained the electronic surveillance information they sought had it

attempted to use traditional criminal investigative tools. Cummings told the

OIG that he did not believe the FBI could have obtained criminal wiretap

authority at the time the Mayfield FISA application was submitted, because he

did not think the government "could show a criminal violation" by Mayfield.

The Continental United States 4 (CONUS 4) SSA also told the OIG that he did

not believe that the government had sufficient probable cause to obtain a

criminal wiretap on Mayfield's telephones because he did not think the FBI had

probable cause to prove that Mayfield was using a particular telephone line in

facilitation of a crime. However, the OIPR Attorney disagreed, stating that

given the gravity of the Madrid bombings and the fingerprint identification of

Mayfield, he believed the government could have obtained a criminal wiretap.

In addition, these witnesses pointed out that the information obtained

through FISA warrants remains classified, while information obtained

pursuant to a criminal wiretap must eventually be disclosed to the defendant.

They stated that as a result, they believed FISA was the best tool for the

government to identify and disrupt any future planned terrorist acts in the

United States.

225
Based on our interviews and review of the evidence known to the FBI

when it made the decision to seek emergency FISA authority, we believe that

the government likely would have proceeded with a FISA application even

before Sections 218 and 504 of the Patriot Act facilitated the removal of '_the

wail."

Given the devastating

impact of the Madrid train bombings and the uncertainty whether Mayfield

might be part of a plan to conduct similar terrorist acts within the United

States, the FBI's need for intelligence information to help identify and disrupt

any potential plot would have led the FBI to seek a FISA warrant rather than a

criminal warrant. In our view, therefore, Sections 218 and 504 did not affect

the government's decision to pursue FISA search and surveillance authority in

this matter. Further, we believe that the government could have met the

primary purpose standard that existed before the Patriot Act.

In sum, we concluded that, while the wording of the FISA application was

_,_t_u by Sections _" o-..o anu ou_, those sections did not affect the

government's decision or ability to seek a FISA warrant in the Mayfield case.

However, both Section 218 and 504 of the Patriot Act drastically altered

the way in which FISA-derived information was used and shared once it was

obtained. We discuss the Patriot Act's effect on information sharing in this

case in Section C, below.

2. Section 207 of the Patriot Act

Section 207 of the Patriot Act caused a change in the language of the

FISA order but, in our view did not affect the manner in which the Mayfield

investigation was conducted.

Prior to passage of the Patriot Act, the FISA Court could issue an order

authorizing law enforcement agents to conduct electronic surveillance of United

States persons for an initial period of 90 days, with extensions for additional

90-day periods based on renewal applications by the government. The FISA

Court could also authorize physical searches of any agent of a foreign power for

initial periods of 45 days, with extensions for additional 45-day periods.

According to the OIPR Attorney, due to the difference in time limits, OIPR often

had to seek renewal of FISA physical search authority before the expiration of

electronic surveillance authority in the same case, and then file a separate

application for renewal of the electronic surveillance authority.

226
Section 207 of the Patriot Act changed the time period for which the FISA

Court could issue orders authorizing physical searches from 45 days to 90

days. This amendment streamlined the FISA process by allowing FISA

applications for both electronic surveillance and physical searches to be

renewed simultaneously.

The FISA order obtained in the Mayfield investigation authorized physical

searches for an initial period of 90 days, so this provision did affect the time

period for which FISA search authorization was granted in the Mayfield

investigation. However, all FISA-authorized physical searches in the Mayfield

case were completed within the 45-day limit originally imposed by FISA. Thus,

although Section 207 of the Patriot Act affected the length of time during which

the FBI could have conducted physical searches, it had no impact upon the

time Or manner in which the FBI actually used the FISA authorization.

3. Section 206 of the Patriot Act

Some have speculated that "roving wiretaps" were conducted in the

_-'_--'_ _w_y,_c_u .investigation pursuan ul_ r_uiuL t_ct. Section 206 of the Patriot t to _'- - _".... "- _ ^ -_-

Act amended FISA to allow the FISA Court to authorize multi-point or "roving

wiretaps." A multi-point or roving wiretap order attaches to a particular

suspect rather than to a particular telephone. Thus, if the suspect switches

communication providers during the period authorized by a roving wiretap

order, federal investigators do not have to seek a new court order authorizing

surveillance on the new telephone line. In order to authorize a multi-point or

roving wiretap under Section 206, the FISA Court must find probable cause to

believe that the actions of the target of the FISA application have the effect of

thwarting the surveillance (e.g., frequently switching telephones). 50 U.S.C.

§ 1805(c)(2)(B). 149

As discussed in Chapter Two, the government obtained FISA orders

authorizin mrveillance of

Thus, Section

206 of the Patriot Act had no impact on the Mayfield investigation.

149 Prior to the enactment of the Patriot Act, federal investigators had authority to seek

roving wiretap orders in criminal investigations pursuant to 18 U.S.C. § 2511. Section 206 of

the Patriot Act amended FISA to afford parallel authority in foreign intelligence investigations.

227
4. Section 213 of the Patriot Act

Section 213 of the Patriot Act authorized delayed notification of the

execution of criminal search warrants, which are sometimes referred to

colloquially as _:sneak and peek" searches. There has been much public

discussion concerning whether Mayfield was the subject of such searches.

Criminal search warrants typically require law enforcement officials to

immediately notify an individual whose home or office has been searched.

However, federal courts can permit delayed notification of the execution of a

criminal search warrant if immediate notification would cause the suspect to

flee, destroy evidence, or otherwise compromise an ongoing investigation. Katz

v. United States, 389 U.S. 347 (1967); United States v. Pangburn, 983 F.2d 449

(2d Cir. 1993).

Section 213 of the Patriot Act authorized delayed notification of the

execution of criminal search warrants in cases where the government can show

that notice of the search would create an '_adverse result. "15° By doing so,

S_*:_-" 213 .... _-:_11 ..... _-,-,_-,_,!_,-.1 _-!_ .... "1 1_-'1_'_-- " " 1 L,L, LIUII e_3E;iiLiiEl.lly CALCiiLICLI LIIE; _tvanavnlLy of-'-' uclaycu notice CrllTllnai .... -'

search warrants in any federal court in all types of cases, including terrorism

investigations.

However, we found that there were no delayed-notice criminal searches

conducted in the Mayfield investigation. As described in Chapter Two, the

government conducted covert physical searches of Mayfield's home and office,

but the covert searches were conducted pursuant to a FISA warrant, not

pursuantto criminal search warrants.

The searches conducted by the FBI of Mayfield's office, home, and

vehicles on May 6, after his arrest, were conducted pursuant to traditional

criminal search warrants. Mayfield or Mayfield's wife received immediate

notification of those searches. The government did not seek or obtain authority

under Section 213 of the Patriot Act to delay notification of those searches. In

sum, Section 213 of the Patriot Act, which allows for delayed notification

searches, had no bearing on the searches conducted in this case. 151

150 According to 18 U.S.C. § 2705(a)(2), an adverse result includes, among other things,

flight from prosecution, the destruction of or tampering with evidence, or the intimidation of a

witness.

lsl On March 24, 2005, the DOJ Civil Division notified Mayfield's counsel by letter that

Mayfield's residence had been subject to FISA-authorized physical searches. The letter also

stated that Mayfield was the target of other FISA-authorized surveillance and searches, but did

not offer any details regarding the additional FISA surveillance and searches.

228
5. Section 214 of the Patriot Act

As described in Chapter Two, the FBI conducted FISA-authorized

electronic surveillance of Mayfield_ Pursuant to 50 U.S.C.

§ i80 i, the FISA Court can authorize the government to intercept and monitor

the content of, among other things, telephone communications. Prior to the

Patriot Act, when the government sought authority to monitor call content

under this provision of FISA, it also regularly included requests for authority to

obtain what is known as "pen register" or "trap and trace" information on the

calls. This allows the FBI to obtain information on the telephone numbers of

the incoming and outgoing calls and related call data such as the date, time,

and duration of the calls. The OIPR Attorney characterized the authority to

obtain both call content and pen register/trap and trace information under

Section 1801 as "full FISA" authority. Alternatively, pursuant to 50 U.S.C.

§ 1842, the FISA Court can authorize the government to obtain only pen

register/trap and trace information and not the content of the calls.

Section 214 of the Patriot Act changed the standards under which the

gov....... '- "_' ,_l_,_e.,_ can u_,*_.. _';- _"_^ pen "_ _ , _._on regl_ter/uap and trace .... '__' '- -'*--ctuu,u_ _ty under

50 U.S.C. § 1842. In a pre-Patriot Act FISA application seeking only pen

register/trap and trace authority, the government had to show that: (1) the

information sought was relevant to an ongoing foreign intelligence or

international terrorism investigation, and (2) the targeted lines were being used

by an agent of a foreign power. Section 214 of the Patriot Act eliminated the

second requirement, thus making it easier for the government to obtain

authorization solely for pen register/trap and trace information.

However, Section 214 did not affect the showing the government must

make to obtain "full FISA" authority to intercept both the contents of the calls

and the pen register/trap and trace information. Both before and after the

Patriot Act, in order to obtain a "full FISA" the government had to show not

only a probable cause nexus between the target and a foreign power, but also

that the target was using or about to use the targeted device.

Our review of the _A determined that

229
Therefore, Section 214 of the Patriot Act had no bearing

on the Mayfield investigation.

B. The Impact of the Patriot Act Amendments on the Use of

National Security Letters in the Mayfield Investigation

The FBI issued National Letters in the MI case

Pursuant to

18 U.S.C. § 2709, 12 U.S.C. §3414, and 15 U.S.C. § 1681, the FBI can issue

NSLs in intelligence cases to obtain telephone toll and transactional records

and certain financial information.

Section 505 of the Patriot Act amended the certification requirements for

issuing NSLs. Prior to the Patriot Act, the FBI could issue NSLs only upon the

certification of high-level officials at FBI Headquarters. The certification had to

_, ucmaw_,facts ving reason to believe _ti lU

that the information sought pertained to a foreign power or agent of a foreign

power. Section 505 of the Patriot Act amended these provisions in two ways.

First, Special Agents in Charge (SAC) of FBI field divisions may now certify

NSLs. In addition, the certification requirement has been relaxed. The SAC

need only specify that the information sought is _relevant" to an authorized

investigation to protect against international terrorism. Thus, there is no

longer any requirement that the FBI certify thatthe information sought

pertains to a particular target of an investigation.

The FBI issued NSLs in the investi ation to obtain

All of the NSLs were

certified by the Portland Division SAC, who used the lower certification

standard under the Patriot Act amendment.

The Portland SSA said that even though the Patriot Act made it easier to

obtain NSLs, she thought the FBI would have issued most of the NSLs in this

case under the t Act standard because:

230
152 She said, however, that in

order to answer whether the FBI would have issued the identical NSLs under

the pre-Patriot Act standard, she would have to review the entire case file and

determine whether, based on the information in the file at the time the FBI

sought any particular NSL, the i,'ui could have constructed an argument that

the of information sought- suchas

directly pertained to Mayfield. The Portland SSA

acknowledged that as drafted, all of the NSLs sought information that could be

characterized simply as being simply relevant to the investigation.

We reviewed the NSLs the FBI issued in the Mayfield investigation. It is

possible that the FBI would have been able to make the requisite certification

under the pre-Patriot Act standard for some of the NSLs because the

information sought pertained directly to Mayfield. However, it is not clear from

several other of the NSLs whether the FBI could have made the requisite

certification under the old standard because those NSLs appear to seek

information that was simply relevant to the investigation rather than directly

pertaining to Mayfield. It would be difficult to determine now whether, at the

time the FBI issued those _'_" - " '-- -' " -_....... "-- i_b_, itiI_IU llliorriiatiuthat wouio have ....... -' ri -'-' sUppUrL_U

a certification under the old standard. However, based on our review, we

believe that the FBI may not have been able to make the requisite certification

under the pre-Patriot Act standard to issue some of the NSLs in the Mayfield

case.

C. Effects of Patriot Act Amendments on Information Sharing in

the Mayfield Case

Because of the Patriot Act's dismantling of "the wall" between criminal

and intelligence investigators, the FBI was able to use intelligence and criminal

investigative tools simultaneously. The FBI was also able to freely share

between criminal and intelligence personnel the information gathered by the

use of those tools in the Mayfield investigation. As described in Chapter Two,

in conducting the Mayfield investigation, the government used FISA and NSLs

in addition to traditional criminal investigative tools such as grand jury

subpoenas and (post-arrest) criminal search warrants. In addition, FBI •agents

worked closely with criminal prosecutors and law enforcement agents

throughout the Mayfield investigation.

FBI and DOJ employees involved in the Mayfield investigation confirmed

that Sections 218 and 504 of the Patriot Act facilitated the sharing of

152

231
information between criminal and intelligence officers in the investigation. For

example, the Portland SSA told us that the Patriot Act allowed "a free flow of

information" between the FBI and the U.S. Attorney's Office. She said that

members of the Portland-based Joint Terrorism Task Force (JTTF) were so

"embedded" in the investigation that they were privy to most of the information

being discovered through the use of FISA in the Mayfield investigation. 15a The

Portland SSA said that FBI agents freely discussed with the U.S. Attorney's

Office and JTTF members pertinent information contained in Mayfield_

monitored pursuant to the FISA order, is4 The CONUS 4 analyst

and others who worked on this matter confirmed that the Patriot Act made it

much easier to share FISA information in the Mayfield investigation with law

enforcement agents.

We inquired whether, before the Patriot Act, the FBI would have

disclosed all of the FISA-derived information that it provided in this case to

criminal prosecutors and investigators. The Portland SSA told us that she

believed the FBI would have opened concurrent criminal and intelligence

investigations separated by "the wall" prior to the Patriot Act. She said that

ltuuugn she would have sought to pass some information over "the wan in

that circumstance, the extent of information sharing would not have been as

great as occurred in this case. The Portland SSA said, for example, that if the

FBI had obtained information from the FISA that was significant to the criminal

investigation, she would have sought permission to pass that information over

"the wall" but she Could not say whether permission would have been granted.

The Portland SSA also said that the daily discussions of information with

the prosecutors and the JTTF members that occurred in this case would not

_have occurred before the Patriot Act dismantled "the wall." She said the

prosecutors and criminal investigators would not have been embedded in the

investigation and would not have been privy to all of the pertinent FISA

information as they were in this case.

We concluded that the Patriot Act amendments had the effect of greatly

increasing the amount of intelligence information in the Mayfield matter that

was shared with criminal prosecutors and investigators.

153 The JTTF is composed of representatives from approximately 20 federal, state, and

local law enforcement agencies, such as the U.S. Secret Service, the U.S. Coast Guard, and the

Oregon State Police.

154 The Portland SSA said, however, that due to concern over leaks, the JTTF members

were instructed not to share the information with their respective agencies.

232
In addition to expanding the amount of information that could be shared

by intelligence officials with criminal investigators, the Patriot Act also made it

easier for the FBI to share certain criminal grand jury information in the

Mayfield investigation with other intelligence agencies. Section 203 of the

Patriot Act amended Federal Rule of Criminal Procedure 6(e) to permit the

disclosure of federal grand jury information involving intelligence information

to any federal law enforcement, intelligence, protective, immigration, national

defense, or national security official in order to assist that official in the

performance of their duties. Prior to this amendment, the sharing of grand

jury information was more strictly limited. Rule 6(e) was generally interpreted

to prohibit federal prosecutors from disclosing grand jury information to

intelligence and national defense officials unless those officials were themselves

assisting the criminal investigation. Fed. R. Crim. P. 6(e)(3)(B); United States v.

Sells Engineering, 463 U.S. 418 (1983).

In the Mayfield investigation, the government used numerous grand jury

subpoenas to obtain relevant information about Mayfield. According to court

documents filed by the Portland U.S. Attorney's Office, grand jury information

I EI¢:ILIII_ to lVli:ztyii_i_i W'aS Ql_Ciusea or could have been disclosed to the CiA, the

National Security Council, the Department of Defense, the Department of

Homeland Security, the Department of the Treasury, and the NSA. Prior to the

Patriot Act, such grand jury information could not have been shared with

officials in those agencies unless they were participating in the criminal

investigation.

Thus, Section 203 affected the amount of information the FBI was able to

share with intelligence agencies in this case. For exam , we reviewed the

summary case reports that the FBI shared with in this matter.

Although most of the information the FBI included in those reports was FISAderived, the FBI also included some information obtained through grand jury

subpoenas.

However, both before and after the Patriot Act, the FBI could share with

the intelligence community information obtained through FISA and other

intelligence tools such as NSLs and e___xxparte court orders for business

records. 15s The Portland SSA stated that, with limited exceptions, she believed

that most of the grand jury information in this case could have been obtained

is5 Prior to the Patriot Act, pursuant to 50 U.S.C. § 1862, the FBI could apply to the

FISA Court in foreign intelligence cases for an order requiring production of business records

such as common carrier travel records and hotel records. In order to obtain such an order, the

FBI had to show that the records were sought for a foreign intelligence investigation and that

the records pertained to an agent of a foreign power. Section 215 of the Patriot Act amended

this provision, but the amendments are not relevant here because the FBI did not seek e___xparte

court orders for business records in this case.

233
and shared with intelligence agencies prior to the Patriot Act through use of

those alternative tools. The exceptions were certain types of records that, prior

to the Patriot Act, could not be obtained using NSLs or e__xxparte court orders.

We reviewed the grand jury subpoenas issued in this case and concluded

that although the FBI likely could have obtained some of the information

gained through use of those subpoenas prior to the Patriot Act through NSLs or

e___xxparte court orders, the FBI could not have obtained all of it. Thus, Section

203 made it possible for the FBI to share more information with the intelligence

community in this case than it could have prior to the Patriot Act.

D. Minimization Requirements

Although the Patriot Act had a significant impact on the amount of FISA

information that was shared with prosecutors and other criminal law

enforcement agencies, the government was under an obligation to undertake

procedures to "minimize" what it collected and the manner in which it made

the information available to other intelligence and law enforcement agencies.

In this section, we discuss those minimization procedures.

Minimization procedures are designed to protect against the acquisition,

retention, and dissemination of non-public information concerning a U.S.

person which is not foreign intelligence information. Pertinent information is

information which the FBI has determined has potential foreign intelligence

value. The FBI must minimize non-pertinent information, which means,

among other things, that it cannot enter such information into any FBI

database. Each FISA application must contain proposed minimization

requirements concerning the conduct of the surveillance and searches in that

case. 50 U.S.C. §§ 1804(a)(5), 1823 (a)(5), 1801(h), 1821(4).

The FISA Court in this matter ordered the FBI to follow

electronic surveillance and search minimization

234
Lead Case Agent 2 was res "ble for Lrin that

155

157

235
E. • OIG Corlelusions Regarding Impact of Patriot Act Amendments

on the Mayfield Investigation

In sum, we concluded that the Patriot Act amendments discussed above

did not affect the government's decision to seek FISA authority in this case,

and did not affect the scope of information the government collected pursuant

to FISA surveillance and searches. However, the Patriot Act had a significant

effect on the dissemination of intelligence information about Mayfield

throughout the law enforcement community. The Patriot Act allowed the

government to freely share with prosecutors and JTTF members intelligence

information about Mayfield gathered in the FISA surveillance and searches.

The Patriot Act also allowed the government to share grand jury information

with the intelligence community, some of which could not have been obtained

or shared prior to the Patriot Act through intelligence tools. Thus, a significant

amount of information about Mayfield was shared with a wide variety of law

enforcement agents and intelligence agents that could not have been shared

prior to the Patriot Act.

This increased sharing of information that took place between

intelligence and criminal law enforcement personnel in this case was exactly

what was intended by the amendments to the Patriot Act. The Patriot Act was

designed to remove barriers to the coordination of intelligence and criminal

investigations. The FBI used these new tools to aggressively pursue leads

236
when it believed that Mayfield was linked to a terrorist attack through a

fingerprint. While such actions seem appropriate given the fingerprint

identification, this case also demonstrates that, as a result of the increased

information sharing now allowed by Patriot Act, the consequences of a mistake

like the one made in the Mayfieid case have increased.

Finally, we did not find any evidence that the FBI misused " ;ions

of the Patriot Act in conductin the investi ation of

such as Section 206 (roving wiretaps), Section 213

(delayed notification searches), Section 214 (pen registers), and Section 215 (ex

parte court orders for tangible things). While in this case the FBI relied on the

Patriot Act amendments that affected the standard for obtaining a FISA

warrant (Section 218), the certification requirement for obtaining NSLs (Section

505), and the amendments that allowed for increased sharing of intelligence

information (Sections 203, 218, and 504), given its belief that Mayfield's

fingerprints were on the plastic bag containing detonators found in Madrid, we

did not find evidence to conclude that the FBI abused those provisions.

II. Analysis of the Role of Mayfield's Religion in the Investigation

Another important issue raised in the wake of the Mayfield investigation

is whether Mayfield was "targeted" because of his religion. To examine this

issue, the OIG evaluated whether Mayfield's religion improperly influenced the

FBI's actions in the investigation and arrest of Mayfield.

We concluded that the FBI did not initiate its investigation of Mayfield

because of his religion. As described in Chapter Four, the FBI Laboratory

examiners did not know Mayfield's religion when they made the initial

fingerprint identification. Similarly, when the fingerprint identification was

communicated to the FBI CTD and the Portland Division, neither entity was

given information about Mayfield's religion. The evidence indicates that the

FBI first learned of Mayfield's religion only after the FBI had opened a field

investigation of Mayfield and had initiated a "full court press" to gather all

intelligence available on him. Thus, we concluded that Mayfield's religion

played no role in the FBI's decision to initiate a full field investigation of him.

In addition, every witness we interviewed concerning the FBI's

investigation of Mayfield told us that the fingerprint identification was the

primary factor driving the course of the investigation. For example, the

Portland SSA said the fingerprint was the "crucial piece of evidence." The

CONUS 4 SSA concurred, stating that "everything else was secondary." The

237
ITOS I Assistant Section Chief said the fingerprint identification was the

primary impetus for the investigation of Mayfield.

Several witnesses acknowledged, however, that Mayfield's religion was a

factor in the investigation. The FBi had been informed that the SNP believed

the Madrid bombings had been carried out by radical Muslims. Thus, several

witnesses stated that they expected to discover in investigating the case that

the suspects would be Muslim. A Portland Assistant United States Attorney

called Mayfield's religion a "mildly corroborating factor." The CONUS 4 analyst

said that Mayfield's religion "bolstered" the fingerprint identification, and added

that it would have been "puzzling" if the FBI Laboratory Latent Print Units

(LPU) had identified someone who was not Muslim. Karin Immergut, the

U.S. Attorney for the District of Oregon, likewise stated in her interview that, "I

think the fact that he was a Muslim convert couldn,t be ignored."

However, witnesses also said that although Mayfield's religion was

considered a factor, it was not an "overriding" factor and it did not affect the

course of the investigation. For example, the Portland SSA told us that the

goal of her squad was to find out how Mayfieid's fingerprint got on the bag of

detonators, and that her squad would have "followed [Mayfield] just as hard if

he had been a Christian." She said the Portland Division would not have done

anything differently if Mayfield was not a Muslim. Similarly, the ITOS I

Assistant Section Chief told us that if the fingerprint had been matched to a

"librarian in Iowa," the FBI would have conducted an investigation to see where

the librarian "fit in." The CONUS 4 analyst said that if the FBI LPU had

identified someone who was not Muslim, they still would have had to "run it

down."

Several witnesses said Mayfield's religion was not a factor in the

investigation, but that his association with suspected terrorists was. The

Portland SSA said Mayfield's associations with people the FBI viewed as

potential terrorists were more important than his religion. ITOS I Section Chief

Cummings said that what concerned the FBI about Mayfield were his

associations with other Muslims who were considered to be extremists by the

FBI. Similarly, the CONUS 4 SSA told us that Mayfield's telephone contact

with suspected terrorists was a factor in the investigation and that "Mayfield

being a Muslim was not. "1s8

ls8 The CONUS 4 SSA served as the FBI declarant on the declaration submitted in

su of the flication.

238
For his part, Mayfield's attorneys have alleged in the civil suit that the

government submitted an inflammatory, demonizing, and prejudicial affidavit

in support of Mayfield's arrest that made reference to his religion or his

contacts with other Muslims. Paragraphs 13 and 14 of the affidavit detail

Jeffrey Leon i_attie's conviction on federal terrorism charges and Mayfieid's

legal representation of Battle in an unrelated matter. Paragraphs 15-18 of the

affidavit detail Mayfield's telephone contacts with Pete Seda, also known as

Perouz Sedaghaty, then Director of the U.S. offices of the A1-Haramain Islamic

Foundation (AHIF). According to the affidavit, six other AHIF offices had been

designated as terrorist organizations by the U.S. Department of the Treasury.

Paragraph 19 of the affidavit states that Mayfield was observed "[driving] to the

Bilal mosque ... on several occasions." Paragraph 20 states that Mayfield had

placed an advertisement for his law office in a publication called "Business

Link Directory" and that the registered agent of the company that administered

the directory had past business dealings with an individual alleged to be the

personal secretary to Usama Bin Laden and had been convicted in connection

with the 1998 U.S. Embassy bombings in Kenya and Tanzania.

i lithe pai_grapns were mctuuCu in the affidavit not because they refer to

Mayfield's religion but rather because they outline Mayfield's connections with

others who were either known or suspected terrorists. As described above, the

affidavit outlines Mayfield's connection with Battle, a convicted terrorist;

Mayfield's telephone contacts with Sedaghaty, the director of a organization

with offices designated by the U.S. government as terrorist organizations; and

an advertisement placed by Mayfield in a directory administered by an

individual linked in past business dealings to another individual convicted of

bombing a U.S. Embassy (and a known associate of Usama Bin Laden).

With respect to paragraph 19, Immergut told us that the fact that

Mayfield attended the mosque, standing alone, was not meaningful in the

investigation. She said that what was important to the government was the

fact that members of the Portland Seven who had pled guilty to terrorism

charges had attended the Bilal mosque. She said the government wondered

whether there were others in the mosque who were planning "a jihad." When

asked why paragraph 19 of the affidavit did not explain the significance of

Mayfield's attendance at the Bilal mosque, Immergut acknowledged that "we

could have clarified why this was a more significant point." We agree that the

government should have explained what it believed to be the significance of

Mayfield's attendance at the mosque, rather than simply stating that he

attended the mosque.

Based on all the evidence, we concluded that the FBI's field investigation

of Mayfield was initiated because of and largely driven by the identification of

his fingerprint on evidence associated with the train bombings, not by his

239
religion. We also believe that the affidavit provided information that the

government believed was relevant to the investigation.

We believe the FBI would have sought covert search and surveillance

authority irrespective of Mayfieid's religion. Moreover, we did not find evidence

suggesting that the investigation was prolonged because Mayfield is a Muslim.

After the decision to seek covert surveillance and search authority, the FBI's

investigation between March 20 and May 6 largely consisted of carrying out the

FISA searches and seizures, conducting logical follow-up investigation, and

examining the information obtained. By April 19, the government had decided

that it would finish reviewing and analyzing the large volume of evidence

gathered by the end of May and "if no additional evidence was found" to link

Mayfield to the bombings, it would end the covert investigation and seek to

interview Mayfield.

In our view, the FBI's field investigation appropriately sought information

about a subject who had been positively identified by the FBI Laboratory as

having left a fingerprint on a bag of detonators found in Madrid. When the FBI

_-_J-" ..... ,-.! -.1 I .__ .LI_ .,L _1_ L" ...... _,L "!_ff _--L'_1_1' .-.1 .... Laboratoi_-cux,u,u_u to ueciatc real Ltx_ ,ng_xprmL was xvxay,_xu s, we uu nuL

believe it was unreasonable for the Portland FBI agents to aggressively pursue

their investigation.

III. The FBI's Participation in the Preparation of the Material Witness

and Criminal Search Warrants

In this section, we evaluate the accuracy of certain representations made

by the FBI in the affidavits submitted in support of the material witness

warrant and the criminal search warrants. Lead Case Agent 1, the original FBI

affiant, Werder, and Supervisory Fingerprint Specialist Green all participated in

the preparation of the affidavit submitted to the Court in support of the

material witness warrant.

In conducting this assessment, the OIG recognized that the U.S.

Attorney's Office and DOJ Criminal Division were involved in the review and

approval of the final version of the affidavits and were ultimately responsible for

determining how to satisfy the government's ongoing duty of candor.

The OIG is not analyzing whether government attorneys satisfied their

duty of candor. Nor is the OIG evaluating the merits of the decision to seek a

material witness warrant. The decision to seek a material witness warrant,

while clearly supported by Portland Division SAC Robert Jordan, was

ultimately made by Chris Wray and David Nahmias, both of the DOJ Criminal

Division, with input from U.S. Attorney Karin Immergut. As mentioned earlier,

240
DOJ Office of Professional Responsibility (OPR) evaluated the attorneys'

conduct in this case.

The FBI is responsible, however, for assuring that statements in sworn

affidavits regarding information known to its agents and fingerprint examiners

are factually accurate, logically supportable, and not misleading. The OIG

therefore investigated the FBI's conduct with respect to this responsibility, and

we address this issue in this section.

A. Representations Relating to the FBI's Fingerprint

Identification

The FBI described the Laboratory's identification of Latent Fingerprint 17

(LFP 17) in paragraph seven of the affidavit signed by SA Werder and submitted

in support of the material witness warrant. This language was initially drafted

by the original FBI affiant and AUSA 2 in March 2004. As described in Chapter

Two, there were no significant differences between the first draft of this

paragraph circulated by AUSA 2 on March 26 and the final version filed with

the Court on May- 6. The final version states:

On March 17, 2004, the SNP provided the FBI with

photographic images of latent fingerprints that were recovered from

the plastic bag containing the detonators that was found in the

Kangoo van, including Latent Finger Print # 17 (hereinafter

LFP# 17). All the fingerprints were provided to the Latent Print Unit

at the FBI Laboratory in Quantico, Virginia. Senior Fingerprint

Examiner Terry Green, submitted LFP# 17 into the Automated

Fingerprint Identification System (AFIS) for possible matches.

BRANDON BIERI MAYFIELD was identified as a potential match to

the unknown print. Senior Fingerprint Examiner Green then

requested and received two known fingerprint cards of MAYFIELD.

The first card contained the known prints of MAYFIELD's obtained

in connection with a criminal arrest for burglary in Wichita,

Kansas on December 22, 1984. The second fingerprint card

contained the known prints of MAYFIELD obtained during his

service in the United States Army. Both cards containing the

known fingerprints of MAYFIELD were compared to LFP# 17

received from Madrid. Senior Fingerprint Examiner Green

identified in excess of 15 points of identification during his

comparison and has advised the affiant that he considers the

match to be a 100% identification of BRANDON BIERI MAYFIELD.

The 100% identification was verified by Supervisory Fingerprint

Specialist Michael Wieners, Unit Chief, Latent Print Unit, and

Fingerprint Examiner John T. Massey, who is a retired FBI

fingerprint examiner with over 30 years of experience on contract

241
with the Latent Fingerprint Section of the FBI Laboratory.

(Emphasis added.)

The OIG found that the underlined information set forth in this

paragraph was inaccurate in several respects. First, although the images of

latent prints originated with the SNP, they were provided to the FBI by

INTERPOL, not the SNP. Moreover, they were provided on March 13 and 14,

not March 17. Also, Green and Wieners told the OIG that Green made the

identification on March 16, before he requested the original fingerprint cards

from the FBI's Criminal Justice Information Services Division (CJIS), based on

a digital image of Mayfield's criminal print available to him at his computer.

In addition, contrary to the affidavits, Wieners did not %erify" the

identification, as that term is used in the FBI Laboratory's Standard Operating

Procedures (SOPs) and the SWGFAST Methodology. As detailed in Chapter

Three, these documents define a verification as an _'independent examination

by another examiner resulting in the same conclusion." Although Wieners told

the OIG that he had _no problem" with the statement that he had verified the

identification, Wieners acknowledged that he did not perform a complete and

independent examination at the time of the identification. He was not required

to do so under the Laboratory's SOPs. The Laboratory's procedures only

required verification by a single examiner, who in this case was John T.

Massey.

Wieners told the OIG that he studied the print very carefully in the

course of preparing for the April 21 meeting in Madrid, at which time he

became as familiar with the print as he would have been had he done a

complete examination in the time of the identification. However, it does not

appear that the statement in the affidavits that Wieners verified the print was

made with reference to this activity, since the statement first appeared in a

draft of the affidavit circulated on March 26, well before Wieners had seen the

April 13 Negativo Report and begun preparing for his trip to Madrid. We

concluded that the statement in the affidavits that Wieners %erified" the

identification was not accurate. 159

The OIG concluded that these errors in the affidavits reflect a regrettable

inattention to accuracy. AUSA 2 and Lead Case Agent 1 told the OIG that they

read the draft language to Green at various stages in the process. Green

ls9 The affidavits also stated incorrectly that Green _"advised the affiant" (Werder) that

he considered the match to be a 100 percent identification. However, Werder told the OIG that

he had not spoken to the Laboratory. This error was likely the result of the late substitution of

Werder as the affiant instead of Lead Case Agent 1. Nonetheless, Werder did not catch this

error.

242
confirmed that the original FBI affiant and possibly others read the language to

him. Under this circumstance, the OIG concluded that the FB! - probably

Green- should have caught and corrected these errors. 160

B. Representations Relating to the SNP

The FBI described its communications with the SNP regarding the

Mayfield identification in paragraph eight of the Werder affidavit. This

paragraph states:

In mid-April it became apparent that the preliminary

findings of the Forensic Science Division of the SNP concerning the

fingerprint were not consistent with those of the FBI Laboratory.

As a result, a meeting was held between a representative of the

FBI's Latent Fingerprint Unit and approximately ten members of

the Forensic Science Division of the SNP, including representatives

from both the automatic fingerprint identification section and the

latent fingerprint section on April 21, 2004. Before the meeting

i,,uicaLed _-__._-_"- SNP persom_el "'-_'- _ u,ct_ m_lr report of the examination ul-_

LP# 17 was preliminary and that a final determination had not

been rendered. The SNP also indicated that they had not gone into

the level three characteristics (ridge edges, ridge breaks, pores, and

incipient ridge events} utilized by the FBI when making their initial

to continue its analysis of the latent print comparison. I have been

advised that the FBI lab stands by their conclusion of a 100%

positive identification that [sic] LFP# 17 as the fingerprint of

BRANDON BIERI MAYFIELD. (Emphasis added.)

There are several issues with this paragraph, which we discuss below.

Description of the April 13 Negativo Report. The first issue is whether

the FBI failed to disclose the fact that on April 13 the SNP issued a report in

which it stated that it did not agree with the FBI's identification of Mayfield. As

described in Chapter Two, in late April, Lead Case Agent 1 drafted a more

detailed version of this paragraph that specifically identified the April 13

Negativo Report and described the FBI's uncertainty regarding whether the

16oWe concluded that Green's failure to correct the errors in this paragraph of the

affidavits did not constitute intentional misconduct. However, we believe that the FBI

Laboratory should reiterate to its examiners the importance of ensuring the accuracy of

information attributed to them in FBI affidavits. As noted in Chapter Five, Green's current

position in the FBI Laboratory does not involve casework.

243
SNP's finding was equivalent to an "inconclusive" or an "exclusion"

determination, and whether the finding was a preliminary or final

determination. At the time, the Madrid Legat insisted that this information be

removed from the affidavit because it had been provided to the FBI in

confidence. The government then substituted the more general language that

the SNP's "preliminary findings" were "not consistent" with the FBI's

identification. According to contemporaneous e-mail communications between

Lead Case Agent 1 and the Madrid Legat, this language was meant to address

the Madrid Legat's concern while satisfying the government's obligation to be

candid with the Court.

We believe that the change in the language of the affidavit describing the

April 13 Negativo Report was not an intentional effort to mislead the judge

about the contents of the report, but rather the product of an effort to

accommodate the Madrid Legat's concerns about protecting the confidence of

his sources in Spain. The OIG notes that the April 13 Negativo Report itself

provides at most slightly more detail than the "not consistent" language in the

affidavits. The April 13 Negativo Report states that the results of the

comparison-were "negativo" (negative) without further explanation, and

indicates that the SNP would continue its analysis. The final affidavit's

characterization of the report as "preliminary" was consistent with the

statement in the report that the SNP's examination was continuing and with

characterizations of the report provided orally to the FBI by the SNP. The

statements in the affidavit that the SNP's findings were "not consistent" with

the FBI's identification of Mayfield was an accurate characterization of the

"negativo" result contained in the April 13 Negativo Report, even if it did not

specifically identify the written report. The OIG concluded that the final

affidavit adequately conveyed the relevant information.

Description of the April 21 Meeting. The second issue is whether the FBI

accurately described the April 21 meeting in Madrid. Of particular concern is

the statement that "[a]t the conclusion of the meeting it was believed that the

SNP felt satisfied with the FBI Laboratory's identification of LFP# 17." Lead

Case Agent 1 told the OIG that he composed this language based on a

memorandum the Madrid Legat drafted the day after the meeting, which stated

that "at the conclusion of the meeting all of the SNP personnel seemed satisfied

with the FBI's identification." This apparently led the judge to erroneously

conclude that the SNP had agreed with the FBI's identification. During a

hearing on May 17, Judge Jones took issue with Mayfield's attorneys for relying

on reports in the newspapers that the SNP disagreed with the FBI, stating, "I

have no affidavit from any Spanish authorities as to questioning the

244
fingerprint. The only information I have is that after consulting with the FBI,

that they agreed with the 100 percent identification. "161

The OIG interviewed six witnesses who were present at the April 21

meeting in Madrid, including all three FBi representatives (Wieners, the Madrid

Legat, and an ETIU SSA) and three SNP participants. The witnesses differed in

their specific recollections of the SNP's reaction to Wieners' presentation, but

all agreed on one key fact: the SNP had not determined or communicated on

April 21 that it was in agreement with the FBI that Mayfield was the source of

the print. Rather, the SNP agreed to conduct a reexamination of the print in

light of the FBI's presentation.

The Madrid Legat, who served as the translator at the meeting, told the

OIG that the SNP only agreed to reexamine the print. He stated that he

thought that Wieners' presentation was very persuasive, and that most of the

SNP personnel seemed impressed by it, but that the SNP examiners had not yet

agreed with the FBI's identification. The Madrid Legat further stated that he

did not come away from the meeting with any particular confidence that the

SNP ...... '-' --'_" ..... '-- wumu mumaLmy agree with the FBi's conclusions. An ETiU SSA (who

spoke Spanish) and Wieners (who was relying on the Madrid Legat for a

translation) both told the OIG that they came away from the meeting with the

expectation that the SNP would eventually agree with the FBI, but both

acknowledged that the SNP had not specifically done so at the April 21

meeting. Contemporaneous documents appear to confirm that the FBI

participants came away from the April 21 meeting under the impression that

Wieners' presentation had been persuasive, but they do not support the

conclusion that the SNP had communicated that it was "satisfied" that the

FBI's identification of Mayfield was correct. 162

The SNP witnesses we interviewed denied that the SNP expressed

agreement with the FBI's identification at the April 21 meeting. The SNP

Section Chief who signed the April 13 Negativo Report stated that although the

161 In citing this statement, we are not suggesting that Judge Jones' belief about the

SNP's position was a decisive factor in his decision to detain Mayfield. Even after learning that

the SNP had identified Daoud, Judge Jones initially declined to release Mayfield. We disagree,

however, with comments made by the U.S. Attorney's Office that the judge's statement was

merely an "offhand" comment. The judge's statement was made in response to a specific

argument made in support of a motion for Mayfield's release.

162 Later, at a June 9 meeting in Madrid, the SNP representatives told the FBI what

their reaction had been to Wieners' presentation of April 2 1. The Portland SSA, AUSA 2,

Meagher, and Wieners all made notes or memoranda of the June 9 meeting indicating that at

least some of the SNP examiners confirmed that they were initially persuaded by Wieners'

April 2 1 presentation that Mayfield was the source of LFP 17 and that it was only later, upon

further analysis, that these SNP examiners concluded it was not Mayfield's print.

245
SNP participants expressed satisfaction with the detail and meticulousness of

the FBI's presentation, they did not express agreement with the FBI's

conclusions. He told the OIG that there was an exchange of views and that all

of the participants were sticking to their own positions. He stated that the SNP

told the i_'kii during the meeting that the identification of Mayfieid was

incorrect. A supervisor in the SNP Laboratory also told the OIG that the SNP

told the FBI that the identification was negative from their point of view. He

told the OIG that he did not recall that anyone from the SNP agreed with the

FBI's identification. 163

Although the recollections of the FBI witnesses varied from those of the

SNP witnesses on the degree of satisfaction expressed by the SNP

representatives at the meeting, all of the FBI witnesses acknowledged that the

SNP had only committed to reexamine the prints and had not expressed

agreement with the FBI's identification. The FBI witnesses may have been

optimistic about what the SNP might ultimately decide, but they knew that

decision had not been made yet. 164 In light of these facts, the OIG believes that

163 The recollection of the SNP witnesses was generally consistent with statements

attributed to the SNP in a June 5 article in The New York Times. The article quoted a

supervisor in the SNP Laboratory as stating, _The Spanish law enforcement officials kept

pointing out discrepancies between their analysis and that of the F.B.I., but this did not sink in

with the Americans." During our interview, the supervisor suggested that this quote was taken

out of context, and did not reflect the gratitude that the SNP felt toward the FBI for its

assistance. He stated that it was not that the FBI did not want to understand, it was just that

it did not seem that the FBI representative was going to change his mind on the basis of what

the SNP said. The article also quoted the supervisor as stating that the SNP "_refused to

validate' the F.B.I.'s conclusions and maintained the match was negative." The supervisor told

the OIG that this quote was accurate. He reported that he understood that the FBI was

requesting that the SNP validate or corroborate the FBI's identification, but that the SNP was

adamant that it was not Mayfield's print. The SNP Section Chief said he did not recall any

request from the FBI that the SNP state whether it agreed with the identification, but he did

recall that the SNP told the FBI it did not agree with the identification.

The FBI participants, Wieners, the Madrid Legat, and an ETIU SSA, all disputed the

descriptions of the April 21 meeting in The New York Times article. They said that the FBI was

receptive to the issues that the SNP raised, but that Wieners had explanations for each

apparent dissimilarity between LFP 17 and the Mayfield prints. They denied that the FBI ever

requested that the SNP validate its findings during the April 21 meeting, and all three told the

OIG that they came away from the meeting believing that the SNP would reconsider its

examination.

164 The U.S. Attorney's Office told the OIG that AUSA 2 had a conversation with

Wieners shortly after he returned from Spain in which Wieners gave a description of the

April 21 meeting that was consistent with the language used in the affidavit, that the SNP _felt

satisfied" with the FBI's identification of Mayfield. However, AUSA 2's handwritten notes of her

conversation with Wieners do not state that the SNP "seemed to agree" or _felt satisfied" with

the FBI's conclusions, but rather that the _Spanish reserve [the] right to further examine [the

print]." The April 26 telephone log notes of the Acting Unit Chief from the Laboratory describe

a three-way call between Wieners, the Acting Unit Chief, and AUSA 2. According to these

notes, Wieners _stated he was optimistic that they [the SNP] were going to review the evidence

(continued)

246
the FBI should not have made the statement in the affidavits that "[a]t the

conclusion of the meeting it was believed that the SNP felt satisfied with the

FBI Laboratory's identification of LFP# 17." That statement suggested to the

judge that the SNP had expressed more agreement with the FBI than in fact

was the case. Taken together with the statement later in the same sentence

that the SNP "intended to continue its analysis," the language was ambiguous

and subject to misinterpretation by the judge.

Within days after the affidavits were filed and Mayfield was arrested, the

FBI and the U.S. Attorney's Office learned facts that were inconsistent with the

statement in the affidavit that the SNP "felt satisfied" with the FBI's

identification of Mayfield. On May 7 (the day after the affidavit was filed and

Mayfield was arrested), the Madrid Legat reported in an email to an ETIU SSA

and the ITOS I Assistant Section Chief that an SNP official told him that there

was still "disagreement" within the SNP regarding the fingerprint identification.

This disagreement was also described in the CTS Attorney's May 7 e-mail to the

U.S. Attorney's Office. On May 12, the SNP asked the FBI to provide additional

inked fingerprints for Mayfield, stating that such prints were "essential" to

1 _-" ...... 1-- "

coiT_piemig its and the U.S ...... ' ALLurney s r-uulcc was made aware of ,_- m_aiy s_s, this

communication. In our view, the May 7 e-mails and the May 12 letter made it

clear that the SNP had not yet completed its review or reached agreement with

the FBI, and these communications underscore the ambiguous nature of the

affidavit language assessing the SNP's position. 165

We attempted to assess responsibility for the inclusion of this ambiguous

language in the affidavits. As noted above, the description of the April 21

meeting in the affidavits was drafted by Lead Case Agent 1, who relied on the

Madrid Legat's April 22 memorandum stating that "all of the SNP personnel

seemed satisfied with the FBI's identification." Further, Lead Case Agent 1

circulated the draft affidavit to the Madrid Legat for his review before it was

presented to the judge.

During his OIG interview, the Madrid Legat revised his April 22

assessment that the SNP "seemed satisfied" with the identification. He

again, and they might publish a follow-up report." Again, this description falls short of stating

that the SNP agreed or felt satisfied with the FBI's conclusions. Wieners told the OIG that he

would not have made the statement in the affidavit that the SNP "felt satisfied," because he

thought some SNP examiners agreed and some did not.

16s On May 14, 2004, the CTS Attorney sent an e-mail to three AUSAs in Portland

stating, among other things, "Re the never ending saga on the fingerprint report - [The Madrid

Legat] said still no movement. He agreed with your assessment that the Spanish have probably

determined that their initial report is wrong and they have requested an additional copy of the

prints in order to save face." We do not believe that this speculative interpretation of the

May 12 request from the SNP provided sufficient basis for the government to maintain, in light

of other information, that the SNP "felt satisfied" with the FBI's identification of Mayfield.

247
emphasized that while Wieners had been persuasive, and the SNP responded

positively to his presentation, they did not explicitly agree with the FBI's

conclusion and committed only to conducting a reexamination of the prints.

Given the Madrid Legat's characterization of the meeting in his OIG interview,

1 1. ,1 ;

we Deileve mat he should have told Lead Case Agent i not to state that the SNP

"felt satisfied" with the identification when the Madrid Legat saw the draft

language on April 29, before the affidavit was filed. The Madrid Legat told us

that he would have preferred that the affidavit were phrased differently on this

point. We found no evidence, however, that he conveyed that concern to

anyone else at the time. Having participated in the April 21 meeting and

served as translator for it, the Madrid Legat was in the best position to correct

the characterization at the time, but we found no evidence that he made any

effort to clarify or correct the affidavit on this point. Instead, at that time the

Madrid Legat was focusing his attention on a different issue: whether the FBI

should disclose the April 13 Negativo Report in the affidavit. 166

We also believe that the participants involved in drafting the affidavits

should have recognized the ambiguous nature of this language and should

have consulted directly-with the Madrid Legat to seek less ambiguous

language. Failing that, we believe it would have been better practice to omit

this ambiguous language from the affidavit. 167

We also note that the U.S. Attorney's Office was involved in preparation

of the affidavit language and was responsible for decisions regarding what

166 The Madrid Legat is retired from the FBI, so the issue of whether the FBI should

take any action with respect to his conduct is moot.

167 We concluded that the failure of Lead Case Agent 1 and Werder to recognize the

ambiguous nature of this language did not constitute intentional misconduct. However, we

believe that the FBI should remind its agents about the importance of ensuring that

information provided in FBI affidavits is accurate and unambiguous.

Furthermore, in a letter to the OIG dated December 13 (Appendix L), U.S. Attorney

Immergut stated: "[T]here should be no dispute but that Portland personnel did 'consult

directly' with the Legat. We employed best practices by quoting the official report of the

primary witness and then circulating the description of the meeting to that witness in order to

ensure accuracy." As noted above, we do not dispute that the Portland personnel based their

draft affidavit on the Legat's April 22 memorandum, quoted from that draft, and also sent the

draft affidavit to the Madrid Legat on April 29 for his review. Our point is that even without

prompting from the Legat, a better practice for the persons involved in drafting the language of

the affidavit would have been to recognize that the statement that "it was believed that the SNP

felt satisfied with the FBI Laboratory's identification" was potentially ambiguous. Alternatives

included asking the Legat more specifically what the SNP said or leaving the characterizations

of the SNP's "feelings" out of the affidavit altogether.

248
information was disclosed to the Court. DOJ OPR assessed the conduct of the

U.S. Attorney's Office attorneys with respect to these matters. 168

The OIG concluded that the statement about the agreement of the SNP

should not have been included in the affidavits, it predictably had the effect of

persuading the judge that more had taken place at the April 2 1 meeting than

was in fact the case. In the affidavits, the FBI should have stated objective

facts that were known by the participants: that the SNP's initial comparison

yielded a _negative" result, that the SNP representatives agreed on April 22 to

take another look at the prints, and that the FBI Laboratory stood by its

identification of Mayfield. 169

Disclosures to the FISA Court.

168 u.s. Attorney Immergut emphasized to the OIG the fact that the _Portland

investigators did not have direct access to the evidence and were not able to communicate

directly with the Spanish." We believe that Portland's lack of contact with the SNP counseled

particular caution in stating a belief in the affidavit that the SNP _felt satisfied" with the

identification of Mayfield. A better practice would have been to seek clarification from the

Madrid Legat regarding the basis for his April 22 assessment of the SNP's satisfaction. The

Madrid Legat might have provided the same clarification that he later provided to the OIG, to

the effect that the SNP did not explicitly agree with the FBI's conclusion and committed only to

conducting a reexamination of the prints. However, we recognize and agree with U.S. Attorney

Immergut that the Madrid Legat did not offer such a clarification when he was asked to review

the draft affidavit.

169 U.S. Attorney Immergut's letter of December 13 (Appendix L) stated that our report

"fails to account for the fact that on May 4, Portland FBI SAC Jordan and I (along with several

members of our respective staffs) spoke directly with the Madrid Legat by teleconference. The

Legat told us that the SNP were about to issue a final report concurring with the FBI fingerprint

identification. This teleconference was specifically convened to consider whether Portland

should recommend that a warrant be sought to detain Mr. Mayfield as a material witness."

(Emphasis in original.} In interviews with the OIG, however, the Madrid Legat and SAC Jordan

both said they had no recollection of the Legat making such a prediction. When the OIG asked

the Madrid Legat whether at that time he had any idea of whether the SNP was going to agree

with the FBI, the Madrid Legat said _absolutely not."

249
170

Whether the FBI failed to disclose that the SNP disagreed with the

identification. The fourth issue is whether the FBI knew prior to May 19 that

the SNP had completed its reexamination of LFP 17 and had again reached the

conclusion that it disagreed with the identification of Mayfield. If so, the FBI

failed to convey that information (which would have contradicted the

description in the affidavit of the SNP's perceived position) to the U.S.

Attorney's Office for disclosure to the judge. As noted in Chapter Three, the

former Director of the SNP Laboratory told the OIG that the SNP had completed

its reexamination of the prints and reached its determination that Mayfield was

170 DOJ OPR examined the actions of the OIPR attorney on this issue as part of OPR's

investigation of the conduct of DOJ attorneys in the Mayfield case.

250
not the source of LFP 17 before May 12. He told the OIG that he recalled that

he communicated that result to the Madrid Legat at the time.

We reviewed all contemporaneous written communications provided by

the FBi regarding the identification of LFP i 7 during the period between

April 22 (the date of the first meeting in Madrid) and May 19 (the date the SNP

informed the FBI of the identification of Daoud). We found no

contemporaneous written record suggesting that the SNP had informed the

Madrid Legat or anyone else at the FBI before May 19 that the SNP Laboratory

had excluded Mayfield as the source of LFP 17. On several occasions between

April 22 and May 19, the Madrid Legat made reports to the FBI CTD and the

Portland Division describing his conversations with officials of the SNP. Some

of these reports set forth the results of repeated inquiries the Madrid Legat

made to the SNP regarding the status of their reexamination of LFP 17. In

none of these communications did the Madrid Legat ever indicate that the SNP

had told him it had excluded Mayfield. For example, on May 7 the Madrid

Legat wrote, _'Regarding the fingerprint report, it is still undecided as of today.

Some of their people agree with our finding, there is still a few who don't,

according to [the Deputy Director], they hope to resolve this tomorrow morning

when the Director General returns." On May 12, the Madrid Legat wrote, _As of

yesterday afternoon, the SNP Laboratory still had not finalized their

report .... " A major purpose of the Madrid Legat's reports was to let the FBI

and the U.S. Attorney's Office know about the status of the SNP Laboratory's

reexamination, and we would have expected the Madrid Legat to tell them

immediately if he learned anything as dramatic as that the SNP had excluded

Mayfield. We found no compelling reason for the Madrid Legat to conceal this

important fact from his superiors or from the U.S. Attorney's Office, had he

known about it.

As noted above, on May 12, the SNP sent an official letter to the FBI

requesting new inked prints for Mayfield that the SNP said it considered

_essential" to completing its analysis, and requesting a DNA sample for

Mayfield. The Madrid Legat told us that he inferred from this letter that the

SNP still considered Mayfield as a potential source of the print. As previously

noted, this letter indicated that the SNP had not yet completed its

reexamination or reached a conclusion about LFP 17. We agree, however, that

it was reasonable for the FBI to infer from the May 12 letter that the SNP had

not yet excluded Mayfield. In particular, the May 12 letter's emphasis on the

insufficiency of detail in the '_upper portion" of the known prints, and their

request for rolled prints that included the upper area, strongly suggested that

the SNP wanted to determine whether the details in the upper portion of LFP

17 could be matched to a part of Mayfield's known prints that had not

previously been recorded. The SNP was likely investigating the FBI's

explanation that the dissimilarity in the upper left was attributable to a double

touch by Mayfield.

251
Taking all of the evidence into account, we found that although there was

sufficient evidence to conclude that the FBI knew by May 7 that there were

disagreements within the SNP regarding the identification of LFP 17, there was

insufficient evidence to conclude that the FBI learned prior to May 19 that the

SNi_ Laboratory had definitively determined that Mayfieid was not the source of

LFP 17.

C. Representations Relating to Mayfield's Travel and Risk of

Flight

Another issue raised by the affidavit filed in support of the material

witness warrant relates to the existence of false travel documents concerning

Mayfield. Paragraphs 21 and 23 of the affidavit indicate that, at the time the

affidavit was filed, no documents for travel outside the United States had been

found in Mayfield's name. Paragraph 23 states that '_it is believed that

MAYFIELD may have traveled under a false or fictitious name, with false or

fictitious documents. It is also believed that if MAYFIELD did not travel to

Spain utilizing false identification documents that he associated with someone

that played a role in the [Madrid bombings]." Paragraph 23 also states that

_qaw enforcement has been unable to substantiate any other reasonable

explanation for MAYFIELD'S fingerprint to be located on a bag of detonators in

a van in Madrid Spain."

However, paragraph 24 of the affidavit states "that based upon the

likelihood of false travel documents in existence, and the serious nature of the

potential charges, Mayfield may attempt to flee the country if served with a

subpoena to appear before the federal grand jury." (Emphasis added) Thus,

paragraph 24 goes beyond the representation of paragraph 23 that Mayfield

may have traveled to Spain under false pretenses to represent that there was

"likelihood of false travel documents in existence." We believe the latter

amounts to an unfounded inference regarding the 'qikely" existence of false

travel documents. The only factual underpinning for this inference was the

existence of a fingerprint believed to be Mayfield's on the plastic bag. There

were other possible explanations for this fact other than Mayfield using false

travel documents to go to Madrid. Indeed, one of the theories the government

was exploring to explain how Mayfield's fingerprint got on the bag of detonators

was that Mayfield had touched the bag in the United States (which meant that

he did not travel to Spain with false travel documents) and that someone else

took the bag to Spain.

When questioned about this language, the Portland SSA said she

interpreted it to mean that there was a likelihood of false travel documents

252
because they had not been able to review all of the documents in the residence

during the FISA search. 171 We were not persuaded by this explanation

because the language referring to "the likelihood of false travel documents in

existence" was drafted in late March, weeks before the FISA searches of the

residence were conducted.

Given the other potential ways that Mayfield's fingerprint could be

on a bag found in Madrid, we found that there was no logical support for the

FBI's assertion that false travel documents were _qikely" in existence. Indeed,

David Nahmias told us that the representation concerning the _qikelihood of

false travel documents in existence" may have been a _'bit stronger" than the

evidence of which he was aware.

In light of the above, we concluded that it would have been preferable for

the FBI agents who participated in the drafting and review of paragraph 24 to

use the term "possibility" regarding the existence of false travel documents. 172

The DOJ OPR reviewed the actions of DOJ attorneys in the drafting and review

of paragra ph _ A __- _,_ _- /._ of the muu_vlt

IV. The FBI's Effort To Obtain a Final Fingerprint Report from the SNP

Laboratory

As noted in Chapter Two, on May 4 the FBI CTD transmitted a formal

Letterhead Memorandum (LHM) to the Legat in Madrid for dissemination to the

Spanish government. The LHM described the media inquiry from the Los

Angeles Times that changed the FBI's investigative plan for Mayfield. The LHM

stated:

171 We did not interview the original FBI affiant in connection with this issue because

he was detailed to Iraq when we conducted our interviews of the FBI agents in Portland,

Oregon. Lead Case Agent 1 said that he did not recall who drafted paragraph 24, and that he

did not recall having any discussions concerning this paragraph. He agreed that the content of

paragraph 24 is accurate.

172 U.S. Attorney Immergut's letter of December 13 (Appendix L) and the FBI's response

to this report (Appendix K) noted that the affidavit stated that the government believed that

Mayfield may have traveled under a false name with false or fictitious documents, or if he did

not travel to Spain using false identification documents, he associated with someone that

played a role in the bombing. While these statements may be true, the next paragraph of the

affidavit explicitly states that there is a "likelihood of false travel documents in existence." We

believe that this claim of the likelihood of false travel documents was an unsupported inference.

As set forth above, we believe the term '_possibility" more accurately reflected the evidence of

which the government was aware concerning the potential existence of false travel documents

at the time the affidavit was filed.

253
[B]ecause Mayfield's name and/or FBI investigation of Mayfield

appears likely to become public in the very near future, our plans

to investigate Mayfield have been significantly advanced. To

effectively interview Mayfield, we need the authority to detain him;

currently, we cannot obtain such authority from our courts

without an official Spanish report identifying Latent Print # 17 . . .

as Mayfield's. We would greatly appreciate a final forensic report

from your service as soon as possible, in an unclassified format for

use in U.S. judicial proceedings.

The LHM was drafted by the CONUS 4 analyst. She stated that the LHM

was reviewed by one of her supervisors, but she could not recall whom. She

transmitted the LHM to the Madrid Legat. He said he did not recall the

memorandum specifically but told the OIG he had no reason to believe that he

did not receive it or deliver it to the Spanish government as requested.

The CONUS 4 analyst told us that she wrote the LHM based on her

understanding that the issuance of a final report by the SNP would solve

:several problems facing the U.S ^........ ' _" • _twru_y s _mc_ and the FBI in preparing

affidavits in support of the material witness warrant and search warrants. She

stated that she understood that the Madrid Legat was concerned that detailed

information about the April 13 Negativo Report could not be provided in the

affidavit because the report was not official and had been provided in

confidence. Moreover, the CONUS 4 analyst said that she believed a new

report would help resolve the fact that the SNP's initial reportdisagreed with

the FBI's identification of Mayfield. She said that it was the .expectation of the

FBI, based on the April 21 meeting, that the final SNP Report would agree with

:ithe identification of Mayfield. She said the FBI wanted to get an unclassified

revised SNP report agreeing with the FBI Laboratory in time to include it in the

affidavit because it would resolve the issues arising from the April 13 Negativo

Report.

However, the language in the LHM was potentially misleading. There

was no requirement under the material witness statute or any other authority

that the SNP issue a report identifying Mayfield before he could be detained.

Indeed, no such report was ever issued and Mayfield was detained without it.

The CONUS 4 analyst stated that nobody told her that obtaining a final

report from the SNP identifying Mayfield as the source of LFP 17 was a

prerequisite to detaining Mayfield. She described the language in the LHM as

sloppy and stated that it reflected her expectation, based on descriptions of the

April 21 meeting provided to her from others in the FBI, that the SNP was going

to agree with the FBI. She stated that the language she used was intended to

encourage the SNP to accelerate the process of finalizing and releasing the

254
report, not to pressure the SNP Laboratory to agree with the FBI's identification

of Mayfield.

We found that the CONUS 4 analyst's explanation of her expectations

regarding what conclusions the SNi _ Laboratory was likely to reach to be

supported by the documents we reviewed. Several contemporaneous

documents show that the favorable descriptions of the April 21 meeting

provided by the Madrid Legat and Wieners gave the impression to others in the

FBI that the SNP was likely to eventually agree with the FBI Laboratory

regarding the identification of LFP 17. In particular, the Madrid Legat's

April 22 memorandum describing the meeting contributed to this perception.

Although the CONUS 4 analyst understandably formed her expectations

regarding the likely outcome of the SNP fingerprint examination on information

that was provided by others, this does not excuse the inclusion of a potentially

misleading assessment of the requirements of an American court in an LHM

intended for dissemination to the SNP. Regardless of her understanding of

whether the SNP was likely to agree with the FBI Laboratory, she had no basis

for stating that Mayfield --' _' -_ " _' wlmuuL a final report from the co ma not be d_ Lameu ---"_'.....

SNP Laboratory. Moreover, a misstatement of this nature could create the

unintended perception that the FBI was pressuring the SNP to issue a

favorable report by suggesting that otherwise a potential terrorist could not be

detained.

V. Problems in the Execution of the Surveillance and Searches

The OIG's investigation also reviewed several problems in connection

with the FBI's execution of the surveillance and searches in this investigation.

In this section of the report, we discuss those problems and analyze what

impact they had upon the Mayfield investigation.

A. Problems in the Execution of FISA Surveillance

The Portland SSA said that the FBI inadvertently began monitoring I

pursuant to the FISA warrant 30 minutes before

the FISA emer authorization was c obtained.

255
In addition, FBI documents indicate that the FBI inadvertently recorded

on alter covera e

was initiated.

In our judgment, both of these errors were inadvertent and did not

materially affect the case.

.

B. Problems with the FBI's Searches of the Residence

We also reviewed _ during the searches which led

the Mayfields to become sus " " that someone had searched their home.

256
This dissuaded the FBI from conducting additional

covert searches of the residence.

we interviewed the two Computer Analysis Response Team examiners

who participated in the _ FISA search of the residence. 173 told us

that during the search found in the home.

We believe that this was not an unreasonable decision under the

circumstances.

A second problem with the Search was avoidable, however. As discussed

in more detail in Cha ter Two, the Ma fields became suspicious

As a result, although the FBI wanted to conduct another

covert search of the home, it could not do so because of the Mayfields'

suspicions that they were under surveillance.

173 These were the same Computer Analysis Response Team examiners who

participated in the _ FISA search of Mayfield's office.

257
The actions of the technical a_

had a negative impact on the investi ation. Had been a

terrorist, the FBI's failure could have

had serious national security implications.

We also examined how the FBI conducted the May 6 search of the

residence. In press accounts regarding that search, Mona Mayfield was quoted

as claiming that the house looked like it had been _robbed" because every room

had been "ransacked," closets emptied, and drawers overturned. In examining

this issue, we interviewed agents who were present at the search of the

residence and reviewed photographs that were taken by the FBI both before

and after the search. The agents who were present during the search denied

Mona Mayfield's allegations and said the house was left in _good condition" at

the conclusion of the search.

In examining the FBI's photographs of the house, we found that some

items, such as papers, were displaced from cabinets and cabinet drawers as a

result of the search, and that other items, such as boxes in what appears be

the attic of the Mayfield home, were left in disarray. However, the photographs

do not support Mona Mayfield's allegations that the FBI left the Mayfield

residence looking like it had been robbed, or ransacked or that the closets had

been emptied and the drawers overturned.

VI. The Role of Media Leaks in the Arrest of Mayfield

As described in Chapter Two, the investigative plan that the FBI adopted

in mid-April called for the FBI to finish the intelligence gathering and analytical

work concerning Mayfield near the end of May. The FBI then planned to

approach Mayfield in early June and attempt to interview but not necessarily

arrest him.

The FBI first became aware on May 4 that its fingerprint identification of

Mayfield may have been leaked to the media when a reporter from the Paris

bureau of the Los Angeles Times called the Madrid Legat to ask about an

American whose fingerprint was linked to the Madrid bombings. On May 5, the

FBI learned that the Spanish magazine, E1Tiempo, had called the U.S.

Embassy in Spain to ask about an American suspect in the bombings. This

258
information caused the FBI, in conjunction with the DOJ Criminal Division and

the U.S. Attorney's Office, to decide to execute the material witness and

criminal search warrants on May 6.

One of the issues we examined is whether anyone in the FBi or DOJ

caused the leaks in order to justify the immediate arrest of Mayfield. We asked

all the witnesses we interviewed about their knowledge of the source of the

leaks. 174 Each witness denied being the source of the leaks and also denied

knowing who the source was. Several witnesses in the FBI and DOJ told us

that they were surprised and upset by the leaks, and said that the leaks forced

them to approach and arrest Mayfield ahead of schedule.

Most of that

speculation centered on either the SNP or those associated with the Spanish

court system, primarily because the May 4 and May 5 press inquires came

from Spain or were directed to the FBI Legat in Spain. We found insufficient

evidence to conclude that anyone in either the FBI or DOJ caused or

contributed to the leaks in order to facilitate the arrest of Mayfield. We were

unable to determine the source of the leak, however, partly because the

universe of individuals with knowledge of the Mayfield investigation at the time

of the leaks was large. We estimated that at least 50 to 100 people in the

United States and Spain were aware of the Mayfield fingerprint identification

and subsequent investigation before Mayfield was approached and arrested.

VII. Conditions of Confinement

During the first court hearing after Mayfield was arrested as a material

witness, Mayfield requested that he be released to home detention. The court

denied this request, and Mayfield was incarcerated at the Multnomah County

Detention Center (MCDC), a facility that is primarily used to temporarily house

criminal defendants awaiting trials, as well as some prisoners convicted of

crimes who are serving relatively short sentences, or who have upcoming court

appearances. According to a local newspaper report, when Mayfield was

released he questioned the appropriateness of his incarceration in light of his

status as a material witness rather than a criminal defendant. :75 The OIG

sought to interview Mayfield regarding a variety of issues, including his

174 We also asked many witnesses about their knowledge of the source of the postarrest leaks that resulted in the imposition of a gag order as discussed in Chapter Two. Every

witness we asked denied leaking any information or documents to the media and denied

knowing anyone who did.

:75 The Oregonian, June 26, 2004.

259
perception of the conditions of his confinement, but Mayfield declined to be

interviewed.

In this section of the report, the OIG examines whether Mayfield's

detention at the fvlGDG was consistent with the requirements of the material

witness statute. We also address other allegations made by Mayfield regarding

his conditions of confinement, as well as the disclosure of Mayfield's alias to

the media by the MCDC.

A. Whether Mayfield's Detention was in Compliance with the

Material Witness Statute

The material witness statute provides that "if it is shown that it may

become impracticable to secure the presence of the [material witness] by

subpoena, a judicial officer may order the arrest of the person and treat the

person in accordance with theprovisions of Section 3142 of this title."

18 U.S.C. § 3144. Thus, under the material witness statute, if the judicial

officer orders an arrest, the witness must be treated in accordance with

Section 3142, which generally addresses the release or detention of a defendant

pending trial. In other words, Congress did not create a separate set of

detention procedures or requirements uniquely applicable to material

witnesses. Instead, Congress permitted judges to apply the detention

procedures and requirements that are generally applicable to criminal

defendants to material witnesses, even though material witnesses have not

been charged with any crime.

One of the detention procedures that is applicable to a criminal

defendant awaiting trial- and thus is also applicable to a material witness

under detention- is the segregation requirement of Section 3142(i)(2). This

section states that if detention is ordered, the judicial officer "shall" direct that

the criminal defendant (or material witness) be confined in a corrections

facility, and kept "separate, to the extent practicable, from persons awaiting or

serving sentences or being held in custody pending appeal." 18 U.S.C.

§ 3142(i)(2). Thus, if detention is ordered, the statute requires that the

material witness (like a criminal defendant) be placed in a corrections facility,

segregated from convicted criminals "to the extent practicable."

In this case, the judge declined a request by Mayfield's attorneys that he

be released on special conditions, stating that because of the "gravity of the

matter, there is no way I can ensure the appearance.., of this material

witness at this time." Once the judge ordered Mayfield's detention pursuant to

the material witness statute, the United States Marshals Service (USMS)

treated Mayfield like a criminal defendant and confined him in a corrections

facility. The material witness statute did not require the USMS or the MCDC to

treat Mayfield differently from criminal defendants.

260
According to the Chief Deputy U.S. Marshal for Portland, Mayfield was

assigned to the MCDC because this was the contract facility normally used by

the USMS to house all federal prisoners awaiting court appearances. The

Deputy Chief U.S. Marshal stated that there was no discussion about housing

Mayfieid at any other facility.

As noted above, Section 3142(i)(2) requires that criminal defendants

awaiting trial be segregated from criminals serving sentences and awaiting

appeals "to the extent practicable." This requirement is applicable to many

federal prisoners confined in the MCDC, which is the contract facility normally

used by the USMS to house federal prisoners awaiting trial. According to the

Chief Deputy U.S. Marshal and the Chief Deputy for the Multnomah County

Sheriff's Office Corrections Division, the segregation requirement is normally

satisfied by the general practice of housing inmates serving sentences or

awaiting appeal at a different facility. However, some prisoners serving

sentences are housed at MCDC, including federal prisoners who are housed

temporarily at MCDC in order to be available for upcoming court dates, and

state and county prisoners serving sentences of less than 12 months. The

Chief Deputy- U.S. Marshal and the Chief Deputy for the Multnomah County

Sheriff's Office Corrections Division both stated that generally it is not

considered "practicable" to keep pre-trial criminal defendants and material

witnesses segregated from those state and federal prisoners housed in the

MCDC who are serving sentences or awaiting appeals, and such prisoners are

housed together in the general prison population.

In this case, however, the USMS attempted to take additional steps to

keep Mayfield separate from other prisoners. On the date of Mayfield's arrest,

a Portland AUSA sent a memorandum to the USMS stating that Mayfield was

being detained as a material witness, not a criminal defendant. The USMS

Operations Supervisor noted on AUSA 2's memorandum that the "subject

should be kept separate from all individuals for his own safety" and faxed the

memorandum to the MCDC's classification unit. However, the MCDC deputy

on duty at the classification station when Mayfield was booked told the OIG

that he did not receive any instructions regarding keeping Mayfield separate

from other inmates for his safety. He told the OIG that he initially assigned

Mayfield to a cell in the general prison population.

Before Mayfield was sent to the cell in the general population, however,

the deputy recognized him from internet news reports and became concerned

that other prisoners would also recognize him. The deputy told us he then

assigned Mayfield to the administrative segregation unit. This unit, which

housed a small number of prisoners considered to be high-profile or

dangerous, was the most restrictive area of the MCDC. Mayfield, like other

prisoners in this unit, was kept in a 22-hour lockdown status, with a 2-hour

recreation period during which he was allowed to go to a small day room, either

261
by himself or accompanied by one other inmate. This recreation period was

voluntary and inmates could instead opt to remain in their cells.

According to the MCDC Captain, the MCDC performs weekly

assessments of prisoners held in the administrative segregation unit to

determine whether inmates held there can be reassigned to a less restrictive

unit. The Captain told us that as the result of this assessment, on May 12 the

MCDC determined that Mayfield was not dangerous and could be transferred.

The Captain told us that Mayfield was quiet, well-behaved and cooperative.

Therefore, six days after entering the MCDC, Mayfield was moved to the less

restrictive protective custody unit. In that unit,. Mayfield had a separate cell

and was permitted (but not required) to commingle with as many as seven

other prisoners in a common area for several hours per guard shift.

We concluded that the treatment of Mayfield, including his segregation

from the general population, did not violate any provisions of the material

witness statute. Indeed, because Mayfieid was assigned to the administrative

protection unit and later the protective custody unit, Mayfield was kept

separate from prisoners serving sentences to a greater degree than is usually

provided to pre-trial defendants who are also subject to the segregation

requirements of 18 U.S.C. § 3142.

However, we also found that the MCDC did not ensure that instructions

from the USMS regarding the treatment of the prisoner were followed. As a

result, Mayfield was initially going to be placed in the general prison

population. He was only placed in a separate cell as a result of the deputy's

recognition of Mayfield from a photograph on the internet. We believe that the

MCDC should review its procedures to ensure that a more reliable system for

communicating instructions regarding special handling of particular prisoners

exists and that such instructions reach the appropriate personnel in the

MCDC.

B. OIG Review of Other Allegations Regarding Mayfield's

Confinement

Because of Mayfield's decision not to speak to the OIG, we did not receive

directly from him allegations regarding his treatment while confined. However,

we reviewed statements that Mayfield or his friends or relatives made to the

media regarding his confinement. The statementsrelating to conditions of his

confinement, and our analysis of them, follow.

262
Mayfield stated that a prison Kuard told him that he should watch his

back. i76 The MCDC Captain told us it was likely that several deputies would

have said this to Mayfield. He said that this is commonly said by the deputy at

the classification desk and by other deputies to first-time inmates and that it is

meant as a helpful warning. He added that he could understand how Mayfield

could perceive this as threatening, but that it was not meant to be.

Mayfield stated that he was kept in the jail's mental ward. He worried for

his safety, especially after seein_ an inmate in a nearby cell injure his own ear

by jabbing it with a pencil. 177 As described earlier, Mayfield was housed in the

administrative segregation and protective custody units in the MCDC, not in

the MCDC's mental ward. Mayfield may have made this statement because

inmates who have less acute mental problems are also housed in the protective

custody unit where Mayfield was housed. According to the MCDC Captain, the

MCDC has a large population of such inmates. The MCDC houses inmates

with acute mental problems separately from the general prison population in a

special housing unit, while those with lesser mental problems are housed in

the protective custody unit where Mayfield was located.

Mayfield stated that he feared for his safety when inmates began to

recognize him on the niRhtly news. :v8 As noted above, the MCDC took steps to

protect Mayfield from retaliation by other inmates. Mayfield was housed alone

in a cell in restricted parts of the detention center the entire time he was in the

MCDC. During his first week of confinement, like all prisoners housed in the

administrative segregation unit, Mayfield was allowed out of his cell for two

hours a day, and that was under escort by a guard. During his second week of

confinement, he was allowed to commingle with others in the protective

custody unit in a small common area, with a guard present, but was not

required to do so.

Mayfield stated that he was handcuffed, forced to wear leg irons, and

routinely strip searched. 179 According to USMS officials, Mayfield was

handcuffed and shackled when he was transported by the USMS to and from

court. He was also handcuffed when he was transferred between cells.

Mayfield was strip searched for contraband after "contact" visits with his

attorneys. Mayfield was also strip searched when he was first booked by the

MCDC and each time he returned from court. USMS and MCDC witnesses told

the OIG that these procedures are standard for all prisoners. For example, the

176 CBSNews.com, May 25, 2004.

177 CBSNews.com, May 25, 2004; The Oregonian, June 26, 2004.

:78 Associated Press, May 25, 2004.

:79 Los Angeles Times, May 29, 2004.

263
USMS Policies and Procedures Manual states, "[p]risoners will be fully

restrained when transported by the USMS. Full restraints consist of

handcuffs, waist chains, and leg irons."

Mayfieid made a televised statement on the steps of the courthouse

immediately after he was released in which he described his detention as a

"harrowing ordeal," but he thanked jail officials for providing him with a copy of

the Koran and a prayer rug. On May 27, 2004, he stated in an MSNBC

interview, "Hey, there's a lot of people I need to thank. And the professionals

and the guards at the Multnomah County Detention center, which I thought,

for the most part were professional." In addition, we note that while Mayfield

has filed a lawsuit against the FBI, in the lawsuit he did not allege that he was

mistreated by either the USMS or the MCDC.

In summary, we did not find evidence that Mayfield was mistreated either

while in the custody of the USMS or at the MCDC, or that the conditions of

confinement violated the material witness statute. The treatment of Mayfield

also was consistent with the normal practices of the USMS and the MCDC.

C. Problems with Mayfield's Alias

As detailed in Chapter Two, at the time of Mayfield's arrest the U.S.

Attorney's Office sent a memorandum to the USMS explaining that Mayfield

was a material witness. Consequently, his arrest was governed by the Federal

Rule of Criminal Procedure 6(e) and could not be publicly disclosed. The

memorandum further instructed the USMS and the jail not to release any

information regarding Mayfield's custody status, including his photographs.

The USMS Operations Supervisor discussed these conditions with the

Captain of the MCDC. As a result, the USMS and the MCDC agreed that

Mayfield would be booked under the alias "Randy Taylor" in order to protect

the secrecy of his detention pursuant to the Federal Rules of Criminal

Procedure. However, we found two problems in the implementation of the

decision to assign an alias to Mayfield, both of which resulted from the failure

of the MCDC to communicate this decision to all appropriate personnel.

First, the failure to communicate the decision led to inappropriate

confrontations between an MCDC deputy and Mayfield. As described in

Chapter Two, the decision regarding assigning an alias to Mayfield was not

communicated to the MCDC deputy who was staffing the classification station.

The deputy stated that when he did a database search for prior arrest records

for "Randy Taylor," he found several from Florida under this alias. He then

interrogated Mayfield and confronted Mayfield about his alleged failure to

disclose these arrests. According to the deputy, Mayfield denied the arrests

264
but did not reveal his true identity. The deputy later recognized Mayfield from

an internet news report, and chastised Mayfield for lying to him. According to

the deputy, Mayfield responded that he had been instructed not to reveal his

identity. We found that these confrontations were unnecessary and avoidable.

Had the deputy been given accurate information and instructions about

Mayfield he would have not interrogated him, or confronted him for his use of

the alias.

Second, and more significantly, the failure of the MCDC to communicate

the alias to appropriate staff led to the disclosure of Mayfield's alias to the

media. On May 7, 2004, one day after Mayfield was booked into the MCDC, an

article appeared in The Oregonian newspaper stating "It was unclear why

Mayfield was booked into the Justice Center jail under the false name of Randy

Taylor on Thursday evening." The OIG determined that the disclosure of

Mayfield's alias to the press occurred because of MCDC management's failure

to inform its Public Information Officer (PIO) of the circumstances of Mayfield's

arrest and to direct the PIO to refer requests for information to the USMS.

According to the PlO, he began receiving calls from the media at around

noon on May 6, the day that Mayfield was arrested. These callers did not

specifically ask about Mayfield, but made general inquiries as to whether the

MCDC had taken any high-profile prisoners into custody. The PIO responded

"no." The PIO stated that throughout the afternoon he continued to receive

calls from the media specifically asking whether Mayfield was in custody. The

PIO stated that he was surprised at how much information the media seemed

to have about Mayfield. The PIO then checked with the booking desk about

Mayfield and was told that no one was booked under Mayfield's name.

The PIO told us that around 5 p.m., after continuing to be barraged with

calls, he contacted the MCDC control center and asked whether the U.S.

Marshals had transported any prisoners to the MCDC. He was told that the

U.S. Marshals had brought over a Randy Taylor. The PIO stated that he

therefore told subsequent callers that the only person the U.S. Marshals had

transported was Randy Taylor and advised them to contact the USMS to find

out if this was "the guy they were looking for. "18° We could not determine

whether anyone in the USMS confirmed to the reporters whether Taylor was

Mayfield or whether Mayfield had been booked at the MCDC. The Captain of

the MCDC told us that he believed that the information about Randy Taylor

provided by the PIO was the basis of the report in The Oregonian revealing the

alias under which Mayfield was booked.

180 According to the USMS, other persons were transported and booked with Mayfield.

265
The PIO told the OIG that when he later informed the MCDC Captain of

the calls, he was told that Randy Taylor was Mayfie!d's alias and that the

MCDC was not supposed to disclose anything about "Randy Taylor" to the

press. During our interview with the Captain, he confirmed the PIO's

description of events and took responsibility for ":dropping the bail" by not

informing the PIO who Randy Taylor was or instructing the PIO not to disclose

anything about him.

The PIO told us that despite the public disclosure of Mayfield's alias, he

believes that the media could have discerned that Mayfield had been booked at

the MCDC on its own. He explained that booking records are considered to be

public information and that the MCDC routinely provides the media with a

daily register of bookings. He stated that there were limited bookings that day

and the media could have used the process of elimination to figure out which

name was Mayfield's alias. If so, use of an alias is an inadequate means of

complying with Rule 6(e), and the USMS and MCDC should work together to

devise a more effective mechanism to preserve grand jury secrecy.

The Chief Deputy U S. Marshal also told us that he was upset about the

disclosui_e and, after determining that it did not originate from within the

USMS, convened a meeting with Multnomah County Sheriff's Office (MCSO)

officials to discuss how to contain the information and the need to prevent

future occurrences of inappropriate disclosures of confidential information in

similar cases. As a result of this meeting, the MCSO provided written guidance

to the PIOs in their facilities requiring them not to respond to public and media

inquiries regarding federal prisoners, but instead to direct these callers to the

USMS. Furthermore, the USMS agreed that, in addition to its current practice

of providing written notification to detention facility management regarding a

federal prisoner being detained as a material witness, it would concurrently

provide written notification to the MCDC Chief Deputy for Corrections and to

MCDC Counsel.

In short, we found a communications problem in the MCDC that resulted

in two inappropriate and readily avoidable incidents: the confrontations

between a deputy and Mayfield about his alias and the disclosure of Mayfield's

alias to the media. The USMS and the MCDC must assure that appropriate

personnel in the correction facility are made aware of the special status of a

material witness, both to protect grand jury secrecy and to prevent

unnecessary intimidation of material witnesses.

VIII. Summary

The OIG concluded that the government's decision to seek FISA

authorization in the Mayfield case was not influenced by the Patriot Act

266
amendments to the FISA statute. In addition, the Patriot Act amendments did

not affect the scope of information the government collected about Mayfield

pursuant to the FISA surveillance and searches. We also found that contrary

to public speculation, the FBI did not use certain provisions of the Patriot Act

m

in the Ma} m rfieid case, such as those relating to delayed notification searches m

_. Moreover, the evidence indicated that even prior to the Patriot

Act, the FBI likely would have sought and been able to obtain FISA

authorization for the searches and surveillance of Mayfield that it conducted.

The Patriot Act did permit sharing of a significant amount of information

about Mayfield with a wider variety of law enforcement agents and intelligence

agents than prior to the Patriot Act. By dismantling the wall between

intelligence and criminal investigations, the Patriot Act allowed the government

to freely share intelligence information about Mayfield gathered in the FISA

surveillance and searches with prosecutors and other criminal law enforcement

officials. The Patriot Act also allowed the government to share grand jury

information with the intelligence community that could not previously have

been shared. In addition, the Patriot Act affected the amount of information

the government collected through use of NSLs in the Mayfield investigation by

relaxing the certification requirements for issuing NSLs.

In sum, we did not find any evidence that the FBI misused any

provisions of the Patriot Act in conducting its investigation of Mayfield.

However, the increased information sharing allowed by the Patriot Act

amplified the consequences of the FBI's fingerprint misidentification in the

Mayfield case.

We also examined whether Mayfield's religion improperly influenced the

FBI's actions in the investigation and arrest of Mayfield. We concluded that the

FBI's field investigation of Mayfield was initiated on the basis of the fingerprint

identification of Mayfield, and that initially FBI examiners were unaware of his

religion. Several witnesses acknowledged, however, that at a later point

Mayfield's religion was a factor in the investigation, although they said it was

not an overriding factor and did not affect the course of the investigation.

In our view, the FBI's field investigation appropriately sought information

about a subject who had been positively- although erroneously- identified by

the FBI Laboratory as having left his fingerprint on the bag of detonators found

in Madrid. We did not find that the FBI employees who supervised and

conducted the field investigation of Mayfield used his religion to improperly

influence the course of the investigation.

In addition, we analyzed the accuracy of affidavits submitted by the FBI

in Support of the material witness and criminal search warrants. We found

267
several inaccuracies in these affidavits relating to the FBI Laboratory's

identification of LFP 17, which we concluded reflected a regrettable inattention

to detail. We also found that the affidavits contained an ambiguous description

of the April 21 meeting between the FBI and the SNP in Madrid. This

description apparently led to the judge to believe that the SNP had agreed with

the FBI's identification, when in fact the SNP had only agreed to conduct a new

examination of LFP 17. In addition, the material witness warrant affidavit

contained an unfounded inference concerning the likelihood of false travel

documents regarding Mayfield.

We also determined that the FBI sent a LHM to the SNP that inaccurately

stated that Mayfield could not be detained unless the SNP Laboratory issued

an unclassified report identifying him as the source of LFP 17.

With regard to the media leaks concerning the FBI's investigation of

Mayfield, the FBI learned in early May 2004 that the Los Angeles Times and

other media outlets had inquired about an American suspect in the Madrid

bombings. This information caused the FBI, in conjunction with DOJ Criminal

Division and the Portland U.S. Attorney's Office, to seek a material witness

warrant and criminal search warrants. This media leak altered the FBI's

investigative plan, which had called for approaching Mayfield in June for a

voluntary interview after completing additional investigation. Through our

investigation, we found insufficient evidence to conclude that anyone in either

the FBI or DOJ caused or contributed to the leaks in order to facilitate

Mayfield's arrest. We did not find sufficient evidence to determine who leaked

this information about Mayfield to the media.

Finally, with regard to Mayfield's conditions of confinement, we found

that Mayfield's treatment did not violate the material witness statute. We also

did not find evidence to conclude that he was mistreated during his detention.

His treatment was consistent with the normal practices of the USMS and the

MCDC. However, we did find that the MCDC failed to convey important

information about Mayfield to appropriate prison personnel, including the

instruction to keep him separated from other prisoners for his own safety and

the fact that he had been booked under an alias to protect grand jury secrecy.

This resulted in an inadvertent disclosure to the press of Mayfield's alias and

an unnecessary confrontation of Mayfield by the MCDC's classification deputy.

268
CHAFTER SEVEN

CONCLUSION

The FBI Laboratory's misidentification of Brandon Mayfield as the source

of" _^-_ i_t_,,t Fingerprint i 7 (LFP i7) found on a bag with detonators connected to

the Madrid training bombings triggered an intensive investigation that

ultimately led to Mayfield's arrest and incarceration for two weeks on a

material witness warrant. The investigation included covert electronic

surveillance and searches of his home and office pursuant to FISA, and

searches of his home and office pursuant to criminal search warrants after his

arrest. The FBI withdrew its identification after the Spanish National Police

(SNP) identified the fingerprint on the Madrid bag as belonging to an Algerian

national.

The misidentification of LFP 17 was a watershed event for the FBI

Laboratory, which has described latent fingerprint identification as the "gold

standard for forensic science." Many latent fingerprint examiners have

previously claimed absolute certainty for their identifications and a zero error

rate for their _uiscipime. : - i=

Because of the significance of the FBI's misidentification and the

consequences to Mayfield, the OIG conducted an extensive investigation,

assisted by fingerprint experts, which examined the causes of the Laboratory's

error, assessed the actions taken by the Laboratory to respond to the

misidentification and improve its fingerprint examinations, and recommended

additional changes to Laboratory procedures. We also closely examined the

conduct of the FBI's field investigation of Mayfield.

Based on our investigation, we concluded that the three FBI examiners

who misidentified Mayfield's print were confused by the fact that the fingerprint

on the Madrid bag (LFP 17) contained as many as 10 points that corresponded

to details in Mayfield's known fingerprints in relative location, orientation, and

intervening ridge count. This degree of similarity is extraordinarily rare and

confused three FBI fingerprint examiners as well as a fourth outside, courtappointed examiner.

However, we also found that the FBI examiners committed errors in the

examination procedure, and that they could have prevented the

misidentification through a more rigorous application of several accepted

principles of latent fingerprint identification. Among other things, the

examiners applied circular reasoning, allowing details visible in Mayfield's

known prints to suggest features in the murky or ambiguous details of LFP 17

that were not really there. The examiners also relied on selected Level 3 details

to support the identification under circumstances that should have called into

question the validity of these purported similarities. They also accepted a

269
_double touch" explanation for an obvious difference in appearance between

LFP 17 and Mayfield's known print that had insufficient evidentiary support

and assumed a remarkable set of coincidences in order to make the

identification.

In addition, the Laboratory missed an opportunity to correct its error

when it learned in mid-April 2004, that the SNP Laboratory had declared that

its comparison of Mayfield's prints to LFP 17 was _negative." Instead, the FBI

examiners declared that they were _absolutely confident" in their identification

even before determining the basis of the SNP's disagreement. We concluded

that the FBI Laboratory!s overconfidence in its examiners prevented it from

taking the SNP's results as seriously as it should have.

We also assessed whether Mayfield's religion improperly influenced the

FBI Laboratory's actions. We determined that Mayfield's religion and

background were unknown to the examiners when they made the initial

fingerprint identification of Mayfield. After the initial identification, information

about Mayfield's representation of a convicted terrorist, his contacts with other

suspected Muslim extremists, and his religion became known to the examiners.

The OIG concluded that Mayfield's religion was not the sole or primary cause of

the FBI's failure to question the original misidentification and catch its error.

The primary factors were the similarity of the prints and the Laboratory's

overconfidence in the superiority of its examiners. However, we believe that

Mayfield's representation of a convicted terrorist and other facts developed

during the field investigation, including his Muslim religion, also likely

contributed to the examiners' failure to sufficiently reconsider the identification

after legitimate questions about it were raised.

We also found that some of the explanations offered by the FBI

Laboratory after the misidentification was discovered were not supported by

the evidence. For example, contrary to the FBI's initial claims, the error was

not caused by the use of a digital image of LFP 17, and we do not believe that

the FBI Laboratory necessarily would have avoided the error had it obtained

access to the original evidence.

In response to the misidentification, the FBI Laboratory has taken

various actions to determine if other similar errors had occurred in other cases,

and to develop new criteria and procedures for latent fingerprint identification.

Among other things, the FBI Laboratory has undertaken an ambitious research

project to develop more objectiveand accurate criteria for declaring fingerprint

identifications. The Laboratory has also announced that it will: (1) develop

new and more detailed Standard Operating Procedures specifying in detail each

step of the examination process, (2) adopt extensive documentation

requirements to ensure thorough and meticulous comparisons with

reproducible results, and (3) implement blind verification procedures with

270
decoy non-matches to promote complete and independent verifications. These

reforms will require dramatic changes in the way latent fingerprint

identifications are performed in the FBI Laboratory and likely in other forensic

laboratories as well. We believe that these actions will improve the quality of

latent fing_, p_ int _x_n,iuations and help prevent future misidentifications.

However, we found that some of the changes adopted by the Laboratory

were not fully responsive to the issues raised by the Mayfield misidentification,

and that additional or more specific modifications to Laboratory practices

should be adopted. In this report, we offer a series of recommendations for

procedural changes to help address the problems we found in this case. They

include recommendations for: (1) developing criteria for the use of Level 3

details to support identifications, (2) clarifying the "one discrepancy rule" to

assure that it is applied in amanner consistent with the level of certainty

claimed for latent fingerprint identifications, (3) requiring documentation of

features observed in the latent fingerprint before the comparison phase to help

prevent circular reasoning, (4) adopting alternate procedures for blind

verifications, (5) reviewing prior cases in which the identification of a criminal

suspect was made on the basis of only one ,_L_,t fingerprint searched through

the FBI's Integrated Automated Fingerprint Identification System (IAFIS), and

(6) requiring more meaningful and independent documentation of the causes of

errors as part of the Laboratory's corrective action procedures.

The OIG also reviewed the conduct of the FBI in the investigation and

arrest of Mayfield, after the FBI Laboratory had declared that his fingerprint

was on the Madrid evidence. Among other things, we considered the impact of

the Patriot Act on the Mayfield investigation. We found that the Patriot Act

amendments to FISA did not affect either the government's decision to seek

FISA search and surveillance authority in the Mayfield case, or the scope of

information the government collected about Mayfield pursuant to FISA. We

also found that, contrary to public speculation after Mayfield's arrest, the FBI

did not make use of the " " of the Patriot Act relating to delayed

notification searches in the Mayfield case. Moreover, the

evidence indicated that, even prior to the Patriot Act, the FBI likely would have

sought and been able to obtain FISA authorization for the searches and

surveillance of Mayfield that it conducted.

We did not find any evidence that the FBI misused any of the provisions

of the Patriot Act in conducting its investigation of Mayfield. The Patriot Act

did permit a wider variety of law enforcement agents and intelligence agents to

share information about Mayfield than would have been permitted prior to the

Patriot Act. This difference amplified the consequences of the FBI's fingerprint

misidentification by permitting information obtained in the investigation of

Mayfield to be disseminated more broadly than would have been permitted

prior to the Patriot Act amendments.

271
We also investigated whether the FBI's field investigation and arrest of

Mayfield were improperly influenced by knowledge of his religion. Some

government witnesses acknowledged that Mayfield's religion was a factor in the

investigation. However, we concluded that investigation and arrest were driven

plimmily by the erroneous fingerprint identification, and that the same

investigatory tools would have been employed regardless of Mayfield's religion.

In our investigation, we reviewed the affidavits submitted by the FBI in

support of the application for a material witness warrant and criminal search

warrants and found problems with them. The affidavits contained several

inaccuracies that reflected regrettable lack of attention to detail. In addition,

we found the wording of the affidavits to be troubling in several respects. In

particular, the affidavits provided an ambiguous description of the April 21

meeting between the FBI and the SNP, which apparently lead the judge to

erroneously conclude that the SNP had agreed with the FBI's identification. In

fact, the SNP had only agreed to conduct a reexamination of LFP 17. In

addition, the material witness warrant affidavit contained an unfounded

inference concerning the likelihood of false travel documents regard Mayfield.

Finally, we examined the conditions under which Mayfield was confined

at the Multnomah County Detention Center (MCDC). The material witness

statute provides that the same detention procedures applicable to criminal

defendants are also applicable to material witnesses under arrest. Mayfield's

detention did not violate these procedures. We also found no evidence that

Mayfield was mistreated during his detention. He was treated in accordance

with the normal practices in this facility and was segregated from other

prisoners for his own protection to a greater degree than an ordinary criminal

defendant might have been. However, we found that the MCDC failed to

communicate important information about Mayfield to appropriate personnel,

• resulting in unnecessary confrontations with Mayfield by a corrections officer

and the inadvertent public disclosure of the alias assigned to him to protect

grand jury secrecy.

As a result of our investigation, we provided a series of recommendations

to the FBI to address problems we found in the Mayfield case. While we did

not find any intentional misconduct by FBI employees, either in the Laboratory

or by those conducting the FBI field investigation, we did find performance

issues by various FBI employees and we recommended that the FBI assess

these deficiencies. More significantly, we found a series of systemic issues,

particularly in the FBI Laboratory, which helped cause the errors in the

Mayfield case. While the FBI Laboratory has taken significant steps to address

these issues, we made a series of recommendations to the FBI to address

additional issues raised by the Mayfield misidentification. We believe our

272
recommendations, if fully adopted, can help prevent similar errors in the

future,

273
APPENDICIES
A
COUNTERTERRORISM DIVISION 

1 Assistant Director IF e Staff 

-. 

- 

Threat Mt Unit 

Threat Resolution 

' Intt 
B
LATENT PRINT 
KNOWN PRINT 

-7 

PA- 
IDENTIFICATION OF LATENT 17 

Known 

The identification of Mayfield was effected through an Automated Fingerprint 

Identification System (AFIS) search of the Federal Bureau of Investigation (FBI) 

criminal files. The following describes the characteristics used to effect the 

identification, this includes levels 1 (ride flow), 2 (dots, ending ridges, and dividing 

ridges), and 3 (ridge edges, ridge breaks, pores, and incipient ridge events): 

Latent 

A. In the middle of the latent image is the inner-most recurving ridge. 

Inside the recurving ridge is a spike or ending ridge. On the . recurving ridge are two appendages, a dividing ridge at the top of 

the recurve and a dividing ridge on the left shoulder of the recurve. 

B. From pullout A, following the inner dividing ridge from the left 

shoulder, there is and ending ridge. 

C. From the ending ridge in pullout B, the second ridge down, when 

followed to the righf comes to an end. 

D. The ridge directly below the ending ridge in pullout C, when 

followed to the left, comes to an end. 

E. The ridge directly below the endmg ridge in pullout D, when 

followed to the right, bears three level 3 details. These are pores 

present in both the latent and known images. 
F. The ridge directly below the pores in pullout E, when followed to 

the right, comes to an end. 

G. From the ending ridge in pullout F, following that same ridge back 

to the left, there are two level 3 details. These two incipient dots 

are present in both the latent and known images 

H. The second ridge directly below the incipient dots in pullout G has 

level 3 detail. A small break and angling of the ridge that are 

present in both the latent and known images. 

I. Directly left of the small break and angling of the ridge in pullout 

H, is a dot. 

T. Onthe ridge below the dotinpullout1, whenfollowedtothelefiis 

a single level 3 detail. This pore is present in both the latent and 

known images. 

K. Two ridges above the pore in pullout J and slightly to the left, is a 

single level 3 detail. This elongated pore is present in both the 

latent and known images. 

L. On the fourth ridge down fiom pullout K, following its path to the 

left, there is an ending ridge that ends pointing to the left. Note: 

the ending ridge's distinctive shape. 
M. From pullout L, the ridge to the right and above the ending ridge in 

pullout M also ends pointing to the left. 

N. Directly above the ending ridge in pullout M, with two ridges in 

between, there is a dotlshort ridge. 

0. Directly right of the dotlshort ridge in pullout N, there is an ending 

ridge. 

Note: when reviewing the points in pullouts N and 0 they appear 

in the charted known print as a dot and an ending ridge. However, 

in the other impression of the known print, the ridge appears to be 

a continuing ridge with small breaks. This is consistent with the 

appearance of these characteristics in the latent image. 

P. From pullout 0, the third ridge above and slightly left ends 

pointing downward and to the left. 

Q. When the ridge below the ending ridge in pullout P is followed to 

the right, there is a single level 3 detail. This eruption on the upper 

edge of the ridge is present in both the latent and known images. 

R. Flowing to the right on the same ridge in pullout Q, there is a 

single level 3 detail. This eruption on the under side of the ridge is 

present in both the latent and known images. 
C


D


E


F
FBI Laboratory

Latent Print Units

Issue Date: !0/01/03

Revision 2

page 3 of 6

Standard Operating Procedures for Examining Friction Ridge

Impressions

1 Scope

To perform the Analysis, Comparison, Evaluation, and Verification (ACE-V) of friction

ridge impressions utilizing a qualitative and quantitative assessment of level one, level

two, and level three detail.

2 Equipment/Materials

2.1 Unknown friction ridge impression(s) (latent, patent, etched) "_

2.1.1 Photograph(s)

2.1.2 Negative(s)

2.1.3 Lift(s)

2.1.4 Processed item(s)

2.2 Known friction ridge impression exemplar(s) (fingerprints, palm prints, major

case prints, footprints)

2.2.1 Ink

2.2.2 Live Scan

2.2.3 Chemical

2.3 Magnifier(s)

2.3.1 Fingerprint magnifiers

2.4 Microscopes/macroscopes _,,._

2.5 Latent Print Digital Imaging System (LPDIS)

2.6 Integrated Automated Fingerprint Identification System (IAFIS) Latent Print

Workstation (LPW)

2.7 Repository of known exemplars/records

2.7.1 Manual File(s)

2.7.2 Automated File(s)

This is an uncontrolled copy
FBI Laboratory

Latent Print Units

Issue Date: 10/01/03

Revision 2

page 4 of 6

3 Calibration

3.1 Microscopes/macroscopes. The Microscopes/macroscopes undergo external

calibration and maintenance checks yearly. --'_

3.2 !_AFISLPW scarmer. The calibration, maintenance and/or updating of the scapmer

is performed by CJIS Division.

4 Purpose

The purpose of the examination is to reach a conclusion of individualization, exclusion,

or inconclusive.

5 Procedure

Friction ridge impression examinations are conducted using the ACE-V methodology

which includes both qualitative and quantitative analysis. The Scientific Working

Group on Friction Ridge Analysis, Study, and Technology (SWGFAST) Friction Ridge

Examination Methodology for Latent Print Examiners and the Standards.£or

Conclusions are followed for an individualization, exclusion, or inconclusive

decision.

No minium number of friction ridge detail is required to establish an identification.

However, when less than twelve points of level two detail are utilized in making an

identification, it must receive Supervisor approval before being reported as an

identification. The Supervisor will approve by indicating "OK," date, and initials

in the case notes next to the identification statement.

All identifications must be verified. Exceptions may occur when a second qualified

examiner is not available and/or time constraints do not permit waiting for a second

examiner (e.g., an identification effected as a result of a mandate from a judge during a

trial). The ACE-V methodology is applied regardless of the combination of impression

types (i.e., unknown v. known, known v. known, or unknown v. unknown).

This is an uncontrolled copy
FBI Laboratory

,,;'_ Latent Print Units

Issue Date: 10/01/03

Revision 2

page 5 of 6

5.1 Simultaneous impressions

When the friction ridge impressions of two or more fngers of one hand, each in a

natural relationship with the other, are found then the information from all

impressions is used to reach a conclusion.

6 Errors

6.1 Erroneous identifications

• . ","fi

An erroneous identification is the incorrect determination that two areas of

friction ridge impressions originated from the same person. An erroneous

identification is the most serious error an examiner can make in technical

casework.

6.2 Erroneous verifications

Verification of an erroneous identification is equal to having effected the original

• erroneous identification.

6.3 Missed identifications

A missed identification is the failure to make an identification when in fact both

friction ridge impressions are from the same origin. This is not an erroneous

identification.

6.4 Clerical and administrative errors

Clerical and administrative errors are not erroneous identificationS. Examples

include, but are not limited to, writing the wrong finger number or name.

7 Limitations

The following factors affect the qualitative aspects of unknown and known friction ridge

impressions.

7.1 Anatomical aspects

7.1.1 Condition of friction skin

7.2 Transfer conditions

This is an uncontrolled copy
FBI Laboratory

Latent Print Units

Issue Date: 10/01/03

Revision 2

page 6 of 6

7.2.1 Pressure applied during transfer

7.2.2 Slippage or twisting

7.2.3 Sequence of deposition

7.3 Transfer medium _'

7.3.! Eccfine

7.3.2 Sebaceous

7.3.3 Blood

7.3.4 Wet

7.3.5 Paint

7.3.6 Dirt

7.3.7 Corrosive

7.3.8 Oil/grease

7.3.9 Other

7.4 Development method

7.4.1 Forensic light source

7.4.2 Chemical

7.4.3 Powder

7.5 Substrate

7.5.1 Porous

7.5.2 Non-porous

7.5.3 Semi-porous

7.5.4 Smooth

7.5.5 Rough or corrugated

7.6 Environmental

7.6.1 Protected

7.6.2 Unprotected

7.6.3 Wet (excessive)

7.6.4 Hot (excessive)

7.6.5 Dry (excessive)

7.7 Preservation ....

7.7.1 Lifting

7.7.2 Photography

7.7.3 Digitally captured

7.7.4 Electronically captured

This is an uncontrolled copy
FBI Laboratory

'_"_' Latent Print Units

Issue Date: 10/01/03

Revision 2

page 7 of 6

8 Safety (not applicable)

9 References

9.1 SWGFAST, Friction Ridge Examination Methodology for Latent Print

Examiners.

9.2 Ashbaugh, David R. "Quantitative-Qualitative Friction Ridge Analysis, An

Introduction to Basic and Advanced Ridgeology. " CRC Press LLC, Boca Raton,

Florida, 1999.

9.3 SWGFAST, Standards for Conclusions.

Rev.# Issue Date: History

1 4/9/98 Original Issue of Latent Fingerprint Section

Friction Ridge Identification Protocol

2 9/15/2003 SOP for Friction Ridge Analysis in the Latent Print

Units; Complete rewrite of document to emphasis

the ACE-V methodology.

This is an uncontrolled copy

• .,v_
G
SWGFAST

" ,,v.,v,. ,x=_ ....... !=Ymination !Ul=fh_H_l_nll

for Latent Print Examiners

Goal

Describe a method for friction ridge examinations and the bases for conclusion.

Objectives

* Establish principles by which examinations are conducted.

* Establish a method for friction ridge examination.

* Establish the conclusions that may result from an examination.

1. Fundamental principles for friction ridge examinations by a latent print examiner, trained

to competency _

1.1 The morphology of friction ridge skin is unique.

1.2 The arrangement of friction ridges is permanent barring trauma to the basal layer

of the epidermis.

1.3 An impression of the unique details of friction ridge skin can be transferred

during contact with a surface.

1.4 An impression that contains sufficient quality and quantity of friction ridge detail

can be individualized to, or excluded from, a source.

1.5 Sufficiency is the examiner's determination that adequate unique details of the

friction skin source area are revealed in the impression.

2. Levels and uses of friction ridge skin detail for examinations

2.1 Level one detail

2.1.1 Overall ridge flow

2.1.2 General morphology (e.g., presence of incipient ridges, overall size)

2.1.3 Can be used for pattern interpretation

2.1.4 Can be used to determine anatomical source (i.e., finger, palm, foot, toe)

and orientation

1. SWGFASTTrainingto Competencyfor LatentPrintExaminers

SWGFAST page 1of 4 FrictionRidgeExaminationMethodology

08/22/02 ver. 1.01 for Latent PrintExaminers
2.1.5 Cannot be used alone to individualize

2.1.6 Can be used to exclude under certain circumstances

2.2 Level two detail

2.2.1 Individual ridge path

2.2.1.1 Presence of ridge path deviation (e.g., ridge ending,

bifurcation and dot)

1,_. ,.°.1,.,,° ,A,_o,_,,,_,__'..... of,,,_ger;_ , v-',,,"_thd,_,,;_inn,,,.,.,.,_. (,_,,.g,. ,,,,.._..._., tln,,n,,_ ridge) ,__,,n,,

2.2.1.3 Ridge path morphology (e.g., size and shape)

2.2.2 Used in conjunction with level one detail to individualize

2.2.3 Used in conjunction with level one detail to exclude

2.3 Level three detail

2.3.1 Structure of individual ridges

2.3.1.1 Shape of the ridge

2.3.1.2 Relative pore position

2.3.2 Other specific friction skin morphology (i.e., secondary creases, ridge

breaks, etc.)

2.3.3 Used in conjunction with level one and level two detail to individualize

2.3.4 Used in conjunction with level one and level two detail to exclude

2.4 Other features associated with friction ridge skin (e.g., creases, scars, warts, paper

cuts, blisters)

2.4.1 May be permanent or temporary

2.4.2 May exist as level one, two and three detail

2.4.3 May be used in conjunction with friction ridge detail to individualize or

exclude

3. Method of friction ridge examinations.

A recurring application of Analysis, Comparison, Evaluation and Verification (ACE-V)

in each of the following:

3.1 Analysis

Analysis is the assessment of a friction ridge impression to determine suitability

for comparison. Factors considered include the following:

3.1.1 Quality (clarity) and Quantity of detail

SWGFAST page2 of4 FrictionRidgeExaminationMethodology

08/22/02ver.1.01 forLatentPrintExaminers
3.1.1.1 Level one detail

3.1.1.2 Level two detail

3.1.1.3 Level three detail

3.1.2 Anatomical source (finger, palm, foot, toe)

3.1.3 Factors influencing quality include:

3.1.3.1 Residue/matrix

3.1.3.2 Deposition

3.1.3.3 Surface/substrate

3.1.3.4 Environment

3.1.3.5 Development medium

3.! .3.6 Preservation method

3.1.3.7 Condition of the friction skin

3.2 Comparison

Comparison is the direct or side-by-side observation of friction ridge detail to

determine whether the detail in two impressions is in agreement based upon

similarity, sequence and spatial relationship.

3.3 Evaluation

Evaluation is the formulation of a conclusion based upon analysis and comparison

of friction ridge impressions. Conclusions which can be reached are:

3.3.1 Individualization (Identification)

Individualization is the result of the comparison of two friction ridge

impressions containing sufficient quality (clarity) and quantity of friction

ridge detail in agreement.

Individualization occurs when a latent print examiner, trained to

competency l, determines that two friction ridge impressions originated

from the same source, to the exclusion of all others.

3.3.2 Exclusion

Exclusion is the result of the comparison of two friction ridge impressions

containing sufficient quality (clarity) and quantity of friction ridge detail

i. SWGFASTTrainingto Competencyfor LatentPrintExaminers

SWGFAST page3 of 4 FrictionRidgeExaminationMethodology

08/22/02 ver. 1.01 for LatentPrint Examiners
which is not in agreement.

Exclusion occurs when a latent print examiner, trained to competency _,

%,LK, IIIIIIIN, D LIIf..LL I. vT U 1.11%.'I.IVII I l_,l_il_ -'11-" .1 _,2.,,_,.._jlld _,11_I_I:._¢,.i,I._._.:, _._._.."--'l _._I--_': _,..11_.

sources.

3.3.3 Inconclusive

Inconclusive evaluation results when a latent print examiner, trained to

competency _,is unable to individualize or exclude the source of an

irnnra_ic_n

tiler _14_OIU It.

Inconclusive evaluation results must not be construed as a statement of

probability. Probable, possible or likely individualization (identification)

conclusions are outside the acceptable limits of the friction ridge

identification science.

3.4 Verification

Verification is the independent examination by another qualified examiner _

resulting in the same conclusion.

3.4.1 All individualizations (identifications) must be verified.

3.4.2 Exclusion or inconclusive results may be verified.

1. SWGFAST Training to Competency for Latent Print Examiners

SWGFAST page 4 of 4 Friction Ridge Examination Methodology

08/22/02 ver. 1.01 for Latent Print Examiners
H
SWGFAST

Standards for Conclusions

The standard for individualization is agreement of sufficient friction ridge details in sequence.

1.1 Conditions that shall be satisfied:

1.1.1 Determined by a competent _ examiner, and

1.1.2 Applied to a common area in both impressions,

and

!.1.3 Based on quantity and quality of the friction

ridge details, and

1.1.4 Absent any discrepancy, and

1.1.5 Reproducible conclusion.

1.2 Basic principles:

1.2.1 There is no scientific basis for requiring that a

predetermined number of corresponding

friction ridge details be present in two impressions in order to effect individualization, z

1.2.2 Individualization is supported by the theories

of biological uniqueness and permanence,

probability modeling, and empirical data

gained through more than one hundred years of

operational experience.

2. Exclusion:

The standard for exclusion is disagreement of friction ridge

details.

2.1 Conditions that must be satisfied:

' See SWGFAST Guideline for "Training to Competency".

z See SWGFAST Guideline for "Quality Assurance Guidelines for

Latent Print Examiners".

Journal of Forensic Identification S\,_,fGI..ASI

358 / 54 (3), 2004 Star!dards for Conclusions

09/11/03 ver 1,0

pg 1 of 2
2.1.1 Determined by a competent _ examiner, and

2.1.2 Applied to all comparable anatomical areas,

and

2.1.3 Presence of a discrepancy% and

2.1.4 Based on sufficient quantity and quality of the

friction ridge details, and

2.1..5 Reproducible conclusion.

2.2 Basic principles:

2.2.1 The presence of one discrepancy is sufficient

to exclude.

2.2.2 Distortion 3 is not a discrepancy and is not a

basis for exclusion.

2.2.3 Exclusion is supported by the theories of

biological uniqueness and permanence, probability modeling, and empirical data gained

through more than one hundred years of operational experience.

. ,

3. Inconclusive:

The standard for an inconclusive finding is the absence

of sufficient friction ridge details to effect a conclusion of

individualization or exclusion.

3.1 Conditions that must be satisfied:

3.1.1 Determined by a competent _ examiner, and

3.1.2 Based on quantity and quality of the friction

ridge details, and

3.1.3 Insufficient agreement or disagreement in the

friction ridge details, and

3.1.4 Reproducible conclusion.

' See SWGFASTGuideline for "Training to Competency".

2 See SWGFASTGlossary for "discrepancy".

See SWGFASTGlossary for "distortion".

,SWC_;:A_3T Journalof ForensicIdentification

Gtal_dardsfo_ Con.clus}on_ 54 (3),2004\ 359

09..'I_.,"03ve.r1.0

pg 2of 2
I
Appendix I

Level Two Details Used to Identify both Mayfieid and Daoud

(See Figures 6A-6C)

Mayfieid iD(i) Daoud iD(2) Comment

2 * SM (8) Interpreted as an ending ridge pointing northwest in

V2 (10) Mayfield, 9 ridges up from the dot (Mayfield point 6);

V 1 (8) actually a bifurcation in Daoud, forming the right half of

a distinctive "x" formation.

3 * SM (9) Interpreted as an ending ridge pointing southeast in

V1 (18) Mayfield, 8 ridges up from dot; actually a bifurcation in

Daoud. Location in the latent appears to be more to the

right than in the Mayfield exemplar.

4 * SM (10) Initially interpreted as a bifurcation for the IAFIS search;

V2 (2) re-interpreted as an ending ridge pointing southeast in

V1 (12) Mayfield; actually a bifurcation in Daoud (initial

interpretation was correct}.

5 * SM (11) Initially interpreted as a bifurcation for the IAFIS search;

V 1 (19) reinterpreted as an ending ridge pointing east in Mayfield,

3 ridges up from dot; actually an ending ridge in Daoud.

Location in the latent appears to be more to the right

than in the Mayfield exemplar.

6 SM (12-13) Interpreted as a dot in the Mayfield; reinterpreted as the

V2 (21-22) upper half of an incompletely reproduced small enclosure

Vl (13-14) in Daoud.

9 SM (14) Interpreted as an ending ridge pointing west in Mayfield,

V1 (15) two ridges below dot; actually a bifurcation in Daoud.

10 SM (15) Interpreted as an ending ridge pointing west in Mayfield;

V 1 (16) actually an ending ridge in Daoud.

12 * SM (17) Initially interpreted as a bifurcation for the IAFIS search;

V2 (1) re-interpreted as an ending ridge pointing west in

V1 (11) Mayfield, 5 ridges up from dot; actually a bifurcation in

Daoud (initial interpretation was correct}.

13 * V2 (3) Initially interpreted as an ending ridge eight ridges up

V 1 (9) from .the dot, pointing southwest for the IAFIS search; reinterpreted as a bifurcation in Mayfield, 7 ridges up from

dot; actually an ending ridge in Daoud (initial

interpretation was correct). Note also the distinctive "zig"

shape of the .ridge which occurs in the latent print and

both the Mayfield and Daoud exemplars.

15 S1M (7) Interpreted as a bifurcation on the left shoulder of the

V2 (6) recurve in the Mayfield print; actually a bifurcation in

V 1 (7) ,Daoud, .forming the left part of a distinctive "x" formation.

(1) Number references correspond to points marked in 3/22 Charted Enlargements

,(Figures 2A-2B); asterisk indicates point was coded for IAFIS search.

(2) References are to numbered points in charted enlargements prepared by

Stephen Meagher (SM), first verifier (V1) and second verifier (V2) in connection

with LPU identification of Daoud. See Appendices C-E.
J
Appendix J

Level Two Details Utilized in Mayfield identification but Lacking Correspondence in

Daoud Exemplars (See Figures 7A-7C)

Mayfieid iD(i) Comment

1 Marked by LPU as a bifurcation forking to the west above the core of the

print. This point was not included in the charted enlargements prepared

for the 4/21/04 meeting with the SNP. Consultants did not find a basis

for finding a bifurcation at that location. There is no bifurcation on the

corresponding ridge in the Daoud exemplar.

7 Interpreted by LPU as an ending ridge 2 ridges up and to the left of the

dot (6). The LPU noted that the ridge was incompletely reproduced in the

Mayfield's civil exemplar and that the feature appears as a "continuing

ridge with small breaks" in the criminal exemplar. This contributes to

uncertainty over the location of the ridge ending. There is no tapering of

the surrounding ridges on the latent such as might suggest an ending

ridge in this location. There are no apparent breaks on the corresponding

ridge on the Daoud exemplars; the gap in the latent therefore appears to

be an incompletely reproduced ridge rather than an actual Level Two

detail.

8 Interpreted by the LPU as a dot or short ridge two ridges up and to the left

of the dot (6). On the latent, thepoint is near the edge of the impression

and there is no clear tapering of :the surrounding ridges to suggest a Level

Two detail; such tapering is very. clear in the Mayfield exemplars. The

corresponding ridge on the Daoud exemplars does not end or break

anywhere near this location, but rather continues to the southwest.

11 Interpreted by the LPU as an ending ridge five ridges above and to the left

of the dot (6). Green originally plotted an ending ridge one ridge higher

for the AFIS search and apparently moved the point down a ridge after

seeing the Mayfield exemplars. Kenneth Moses also relied on this feature.

On the latent, the point is near the edge of the impression. The

corresponding ridge on the Daoud exemplars does not end or break AT

this location, but rather continues to the southwest. There is, however, a

bifurcation or ending ridge one ridge up.

14 Interpretedby the LPU as a bifurcation six ridges above the dot (6) and

slightly to the left. Two consultants reported seeing nothing in LFP 17 to

support finding a bifurcation in this location, although bifurcations are

apparent on the ridges above and below this point. No Level Two ridge

deviations appear at the corresponding location in the Daoud exemplars.

(1) Number references correspond to points marked in 3/22 Charted Enlargements

:(Figures 2A-2B).
K
Memorandum _i

To • GlennA. Fine Date 12/14/2005

Inspector General A /

From • Charlene B. Tho__----

Assistant DireclKfl/

Inspection Division

Subject• Draft OIG Report on the FBI's

Handling of the Brandon Mayfield Case

We appreciate the work of the Office of the Inspector General (OIG) in providing

additional insights and perspective into how the Federal Bureau of Investigation (FBI) can

strengthen the process of fingerprint identification. We also appreciate the work of the OIG that

puts to rest unfounded speculation by some as to whether there was misconduct by the FB! or

misuse of the Patriot Act. The FBI is confident that the Inspector General's findings and

recommendations, combined with the substantial modifications already implemented, will

significantly enhance our ability to perform our duties to the public. (U)

A. Overview

In May 2004, Brandon Mayfield was arrested based on, as confirmed by the OIG

report, an extraordinary confluence of events including principally an unusual similarity between

Mr. Mayfield's known fingerprint and a copy of an extant fingerprint recovered from the scene of

recent lethal terrorist bombings in Madrid. The fingerprint identification was made by the FBI as

well as by Mr. Mayfield's own fingerprint expert. Other evidence that appeared to corroborate

the fingerprint match included Mr. Mayfield's connections to known and suspected terrorists

which were;documented and outlined to the Court. (U)

As was learned later in May of 2004, the fingerprint identification made by the

FBI and defense experts was wrong. Upon learning of the mistake, at the request of the

government Mr. Mayfleld was immediately released from prison and the charges dismissed. The

FBI also immediately convened a panel of international experts to examine what went wrong and

to propose reforms to minimize the risk or reoccurrence. Those reforms have been undertaken by

the FBI. (U)

The FBI also cooperated completely and exhaustively for months with the

additional investigation undertaken by the OIG to assess what happened and again propose any

further measures to promote the effectiveness of the agency. As did the international panel of

experts convened by the FBI, the OIG identifies as the primary factor for the mistake made by the

FBI and the defense experts the extraordinarily "unusual similarity" between the two prints (the

known fingerprint of Mr. Mayfield and the extant fingerprint recovered from the Spanish crime

scene), which led all the experts to reach the same conclusion. Such a degree of similarity of

fingerprints from two persons is "extremely rare," the OIG report notes. (U)

The OIG report identifies several ways in which the methodology of the FBI can

be enhanced to minimize the risk of reoccurrence. Several of these helpful ideas were identified

and evaluated by the international expert panel immediately after the discovery of the mistaken
i

Memorandum from Charlene B. Thornton to Glenn A. Fine

Re: Draft OIG Report on the FBI's; 12/14/2005

identification. Following that review, the FBI implemented a series of procedural reforms

,_,,:,,._a +........ +_'*.... e_ors. The Ol_ h,¢ nn_xr Gni_h,_cl it_ ovahlatlnn nfth_._, m_l_llr_.q and

concludes in its report that these were "significant steps" undertaken by the FBI. The OIG also

has recommended additional measures that the FBI can implement to strengthen further the FBI's

assessment of fingerprints. You have our assurance that to the extent they have not yet been

acted upon they will all be considered and discussed with leading experts to make sure that the

FBI is employing the most effective means to ensure the integrity of its expert examinations. (U)

The OiG report also finds no merit to several spurious claims and/or r-amors.

First, the OIG report concludes that there was no evidence of misuse of the Patriot Act. The

report finds, "contrary to public speculation," that the FBI did not use certain provisions of the

Patriot Act and that the Act did not affect the scope of the FBI's use of FISA surveillance or

searches. Indeed, the OIG finds that the effect of the Patriot Act on this investigation was to

enable the FBI lawfully to share information with other members of the law enforcement and

intelligence communities. Second, though the question was raised as to whether religion played

any role in the FBI's identification or investigation of Mr. Mayfield, the OIG report concludes

that religion played no part in either. Third, the OIG found no evidence of misconduct on the

part of any FBI employees involved in this investigation. (U)

B. Comments on the Draft OIG Report

As noted previously to you, we believe the following aspects of the OIG report are

incomglete or inaccurate. (U)

(A) The OIG report suggests that the affidavit in support of the arrest of Mr.

Mayfield provided an "ambiguous" description of the April 21 meeting between

the FBI and the Spanish National Police (SNP), which "apparently" led the judge

to believe that the SNP had agreed with the FBI's identification. The facts show

that the language was appropriate given the information available at the time and

more than met the Government's Brady obligations. A fair reading of the

affidavit, as articulated in the submissions by the United States Attorney's Office

for the District of Oregon(USAO Submissions), could not have led to any

confusion. In fact, as specifically noted in the USAO Submissions, there is no

reason to believe that the language caused the Court to labor under a

misirnpression; all evidence is that the Court was well aware of the pertinent facts

then known to us. (U)

(B) The OIG report criticizes certain aspects of the affidavit submitted to the

Court. Although we disagree with these criticisms for the reasons set forth below

and in our prior submission, we note that it is clear that they are immaterial to any

substantive decision made by the Court, an assessment with which the OIG report

does not disagree. For instance, the report states that the images of the latent

prints were provided to the FBI by Interpol and not by the SNP. But the report

fails to explain that the latent prints were provided to Interpol by the SNP. There

is no question that the SNP was the source of the latent print - Interpol was

merely a conduit. Indeed, Interpol is an international organization that facilitates

cross-border police cooperation and assists agencies whose mission is to prevent

or combat intemational crime. Accordingly, the affidavit submitted by law

-2-
Memorandum from Charlene B. Thomton to Glenn A. Fine

Re: Draft OIG Report on the FBI's, 12/14/2005

enforcement to the Court stating the provenance of the fingerprints as being the

SNP was accurate. Criticizing the affiant for not including the irrelevant detail

that Interpol was the conduit is unwarranted. (U)

The OIG report also takes issue with the use of the word "likelihood" in one

sentence of the affidavit, suggesting that its usage suggested an unwarranted

factual inference that Mr. Mayfield used false travel documents. The affidavit,

however, explicitly and clearly states that it was unknown whether Mr. Mayfield

even .._w.,_ to _,_,,_.,,u,u_ ,.,,.,_._ negating a ,_,,.,,_,,.o.,_._.,,_ it v,Tas1HllJt_%,il _ IJll_ L ral,rth_

Mr. Mayfield used false travel documents to go to Spain. Finally, we note that

there is no reason to believe, and the OIG report does not contend, that the Court

was misled by what the report characterizes as at most a "lack of attention to

detail." (U)

(C) The report on page 122, Section A.I., states that the "unusual similarity of

Level 2 features on the fingerprints [prints added for clarification] of Mayfield and

Daoud... was an important factor contributing to the erroneous identification."

We would disagree with this statement factually if it were read to mean that the

known fingerprints of Mr. Mayfield and the known fingerprints of Mr. Daoud are

unusually similar. However, we assume that the draft report means to say that if a

qualified fingerprint examiner were to compare LFP # 17 (the latent fingerprint

found at the crime scene in Spain) to Mr. Mayfield's known fingerprints, he or she

might well find unusual similarities. This is not because of an tmusual similarity

between Messrs. Mayfield's and Daoud's known fingerprints, but rather due to the

unusual similarity between Mr. Mayfield's fingerprint and LFP #17. (U)

-3-
L
.,

U.S. Department of Justice

Karin J. Immergut

United States Attorney

District of Oregon

1000 SW Third Avenue, Ste. 600 (503)727-1000

Portland, OR 97204-2902 Fax:(503)727-1117

December 13, 2005

Glenn A. Fine

inspector General

U.S. Department of Justice

Office of the Inspector General

950 Pennsylvania Ave., NW

Suite 4712

Washington, DC 20530

Dear Mr. Fine:

I am writing in response to your request for comment about the proposed report of the Office

of Inspector General concerning the Brandon Mayfield case (hereafter the "draft report") which my

office received on December 9, 2005. I appreciate the opportunity to provide you with input. The

proposed report fails to account for and appreciate several critically important matters regarding the

actions of employees of the Portland Division of the FBI and my office. To the extent that the

ultimate conclusions contained in the report are based upon these omissions, they are erroneous. I

respectfully request that you reconsider some of your conclusions and include the additional

information detailed below. Although there are many areas in which we view the facts differently

than your report, we will limit our response here to the three most significant. (U)

As you are aware, the Office of Professional Responsibility has now issued its report

exonerating the attorneys in my office and concluding that they exercised good judgment.

Throughout the draft report, the existence of an ongoing OPR investigation is noted. In fairness, we

believe each of those references should be changed to state that OPR has reviewed the conduct of

the attorneys involved and concluded that they committed no misconduct and exercised good

judgment. To do otherwise permits the inference that there is some unresolved issue regarding the

attorneys in my office when there is not. (U)

A. Description of the April 21 Spanish National Police Meeting

First, the drat_report criticizes the description in the affidavits prepared in Portland of the

April 21, 2004 meeting between the FBI and the Spanish National Police which indicated that at the

conclusion of the meeting "it was believed that the SNP felt satisfied with the FBI Laboratory's

identification..." of the latent fingerprint. The draft report's characterization of this language as

"ambiguous" is not supported by the facts as known to Portland personnel at the time the affidavits

were submitted to the Court. Indeed, the draft report notes that the three FBI employees who

attended the April 21 meeting told your own investigators "that most or nearly all of the SNP
Glenn A. Fine

December !3, 2005

Page 2

examiners seemed to be impressed" by the FBI's presentation. Draft Report, p. 52. That was

precisely the message received in Portland and set forth in the affidavit. Moreover, the report

fails to note that the SNP examiner who finally identified the latent print as belonging to the

Algerian suspect spoke to representatives of my office and the FBI during a June 9, 2004

meeting. He acknowledged that at the conclusion of the April 21 meeting he thought "for sure"

that the latent print belonged to Mayfield. This statement corroborates the affidavit and should

be included in the report. (U)

The report also errs by suggesting thatthe alleged ambiguity concerning the meeting

should be blamed on Department personnel located in Portland. The report should note that no

Portland personnel were allowed to go to Madrid during the investigation, despite my and FBI

SAC Jordan's separate requests. The report does correctly note that:

[h]aving participated in the April 21 meeting and served as

translator for it, the Madrid Legat was in the best position to

correct the [alleged ambiguity]...

Draft Report, p. 216. However, the report incorrectly criticizes those who drafted the affidavits

for failing to "consult[] directly with the Madrid Legat to seek less ambiguous language." Draft

Report, p. 216. It is our position that we did precisely that. (U)

As recognized in the report, the affidavits' description of the SNP position following the

April 21 meeting was a virtual direct quote from the official memorandum prepared by the

Madrid Legat the day after the meeting:

Unit Chief Weiners provided satisfactory explanations for each of

their questions and at the conclusion of the meeting all of the SNP

personnel seemed satisfied with the FBI's identification.

Draft Report, p. 53 (emphasis added). The report accurately states that Portland personnel sent

the draft language describing the April 21 meeting to the Madrid Legat on April 29, a week

before its presentation to the Court. We reasonably expected that, if there were a problem with

the language employed, the Madrid Legat would have corrected it. Thus, contrary to the draft

report's suggestion, there should be no dispute but that Portland personnel did "consult directly"

with the Legat. We employed best practices by quoting the official report of the primary witness

and then circulating the description of the meeting to that witness in order to ensure accuracy.

The affidavit correctly informed the Court that the Spanish intended to continue their analysis of

the print. It did not state that they had formally concurred with the FBI's identification. (U)
Glenn A. Fine

December 13, 2005

Page 3

Moreover, the report fails to account for the fact that on May 4, Portland FBI SAC Jordan

and I (along with several members of our respective staffs) spoke directly with the Madrid Legat

by teleconference. The Legat told us that the SNP were about to issue a final report concurring

with the FBlfingerprint identification. This teleconference was specifically convened to

consider whether Portland should recommend that a warrant be sought to detain Mr. Mayfield as

a material witness. Your office has been informed about this teleconference, and a description of

it should be included in your report. Certainly, it directly rebuts the criticism that we should have

consulted directly withthe Legat. (U)

In summary, Portland personnel took several eminently responsible steps to verify the

accuracy of the affidavit. In light of all of those steps, I respectfully request that you reconsider

the conclusion that the affidavit language was ambiguous and the suggestion that Portland

personnel should have done more in summarizing the results of the April 21 meeting with the

Spanish National Police. (U)

B. False Travel Documents Allegation

The report also contends that the affidavit should have stated that there was a

"possibility" that Mayfield possessed false documents rather than that there was a "likelihood"

such documents existed. We contend this criticism ignores both the role of an affidavit in

criminal procedure and the value of a trained law enforcement agent's experience in analyzing

known facts and making deductions and inferences from those facts. (U)

•The purpose of an affidavit is to set forth those facts upon which the government relies in

requesting that a judge draw a particular legal conclusion, while at the same time complying with

our duty to reveal any known facts which detract from our request. Here, the Court was asked to

conclude, and Judge Jones ultimately did conclude, that it was impracticable to assure Mayfield's

appearance before the grand jury by subpoena. The report does not suggest a single known fact

which detracted from that conclusion which was not contained in the affidavit. (U)

There were only two common sense ways to explain how Mayfield's fingerprint could be

on a bag of detonators in Spain - either Mayfield had traveled to Spain and handled the bag or he

had touched the bag in the United States before someone else transported it to Spain. Both

possibilities were explicitly proposed in the affidavit. Both possibilities suggested that Mayfield

had material testimony to provide concerning the Madrid bombings - either as an observer or as

a participant if he had been in Spain or as an associate of someone else who may have

transported the bag to Spain. (U)

The affidavit disclosed that Mayfield had not recently traveled overseas, at least under his

true name. The FBI agent who signed the affidavit was entitled to rely upon his over twenty
Glenn A. Fine

December 13, 2005

Page 4

i

years experience as a federal law enforcement officer, andupon both the classified and the

unclassified information of which you are aware, to infer from those facts that tfMayfield

traveled to Spain he may have used another identity and false papers. If Mayfield had traveled to

Spain, it was indeed likely that he did so using false papers since no record of travel under his

real name could be found. The context in which the affidavit asserted there was a "likelihood" of

false papers does not create any misimpression. Quite the contrary, it candidly discloses thatthe

affiant did not know whether Mayfield had traveled; thus, the "likelihood" referred to is clearly

an inference based on a possibility. To describe this as "an unfounded inference" simply ignores

the context. To claim that instead the affiant should have said that there was "a possibility" of

false papers also ignores that the affidavit Clearly described Mayfield's travel as only one of the

possible scenarios which could have gotten his print on the bag. We respectfully contend this

criticism addresses what are, at best, semantic distinctions. Any fair reading of the affidavit

would conclude that it asserted no more than apossibility that Mayfield used false travel

documents. (U)

In any event, the affidavit's assertion that it was "likely" that Mayfield used false travel

documents was clearly an inference. It did not purport to be a factual representation. The district

judge was free to accept or reject the inferences set forth in the affidavit. Ultimately, a neutral

federal district judge came to the same conclusion as did the affiant and found as a matter of law

that "it appears impracticable to secure the attendance of [Mayfield] at grand jury by subpoena

unless he is arrested and detained..." Order for Arrest Warrant and Detention, filed May 6,

2004. The Portland personnel who drafted the affidavit should not be criticized for making the

same inferences and reaching the same conclusion as did the district court. (U)

C. Attention to Detail

Finally, the Executive Summary, as well as the body of the draft report, characterizes

minor factual inaccuracies contained in the affidavits as reflecting a "regrettable lack of attention

to detail." Draft Report at 19. In all fairness, the final report should note that each of those

minor factual discrepancies were immaterial as a matter of law to the issue of whether Brandon

Mayfield should be held as a material witness or his premises searched. For example, the report

criticizes the affidavit for stating that the FBI obtained the latent print from the SNP, when in fact

Interpol had transmitted the print from the SNP to the FBI. We do not regard this as an

inaccuracy at all, because there is no question that the SNP was the source of the print. This is

rather like criticizing someone for saying they got a bill from the phone company instead of

saying they got it from the mailman. The materially important fact is the source of the print, not

who transmitted it. Such trivial inaccuracies could not have influenced the decision to issue the

warrants, and do not, even when taken together, show a lack of attention to detail. Furthermore,

the Executive Summary, which I understand you intend to release publicly, should also note your

conclusion set out at page 211 of the Draft Report that the fault for these minor factual
Glenn A. Fine

December 13, 2005

Page 5

inaccuracies belongs with the person at the FBI Laboratory who approved the affidavit's

language when it was read to him by personnel from Portland. (U)

Again, I thank you for the opportunity to provide comments on behalf of my office.

Sincerely,

KARIN J. IMMERGUT

-United States Attorney