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Kretchmar v. Federal Bureau of Investigation

United States District Court, D. Columbia.

March 27, 2014


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For FEDERAL BUREAU OF INVESTIGATION, FEDERAL BUREAU OF INVESTIGATION - LABORATORY DIVISION, D. CHRISTIAN HASSELL, Ph.D; Director of Federal Bureau of Investigation - Laboratory Division; In his official capacity, Defendants: Kimberly J. Duplechain, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; William Mark Nebeker, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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KETANJI BROWN JACKSON, United States District Judge.

Plaintiff Gary Kretchmar (" Plaintiff" or " Kretchmar" ) is serving a life sentence following his 1988 conviction in Pennsylvania state court for first-degree murder. (Compl., ECF No. 1, ¶ 17.) At his trial, a Federal Bureau of Investigation (" FBI" ) Special Agent testified about a forensic technique known as " Comparative Bullet Lead Analysis" (" CBLA" ) that the FBI laboratory conducted on certain evidence that investigators recovered from the murder scene. ( Id. ¶ ¶ 15-16.) Shortly after Kretchmar's conviction, there was widespread public criticism of the scientific work of thirteen FBI laboratory examiners, and as a result, the FBI issued a memorandum recommending that the forensic work of these particular examiners be reviewed under certain specified circumstances. ( Id. ¶ ¶ 20-21.) That FBI memorandum forms the basis of Kretchmar's lawsuit, which he filed pro se in September 2012, against the FBI, the FBI Laboratory Division, and the Director of the FBI Laboratory Division (collectively, " Defendants" ). Kretchmar's complaint here alleges that Defendants deprived him of his Fifth Amendment due process rights (Count I), and violated the Administrative Procedure Act, 5 U.S.C. § 702 (" APA" ) (Count II), when the agency proceeded to review the forensic testimony that its agent had provided during Kretchmar's murder trial--review that was done as part of a broader program to ensure that witnesses had not provided misleading CBLA-related testimony (the " Bullet Lead Transcript Review" )--but, according to Kretchmar, did not follow the FBI memorandum's specific guidance in conducting that review. (Compl. ¶ ¶ 22-26, 36, 46.)[1]

Before this Court at present is Defendants' motion to dismiss or, in the alternative, motion for summary judgment, which argues that Kretchmar cannot maintain a claim under either the Due Process Clause or the APA based on Defendants' alleged non-adherence to the FBI memorandum's recommendations. ( See Mem. in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J. (" Defs.' Mot." ), ECF No. 16; Suppl. Br. in Support of Defs.' Mot. to Dismiss or in the Alternative, for Summ. J. on Counts I & II, ECF No. 39 (" Defs.' Suppl. Br." ).) Because Kretchmar cannot establish that Defendants deprived him of due process, nor can he claim any injury under the APA, the Court will GRANT

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Defendants' motion and DISMISS Kretchmar's case in its entirety. A separate order consistent with this opinion will follow.


In 1998, Kretchmar stood trial for first degree murder in Pennsylvania state court. ( See Compl. ¶ ¶ 13, 15.) The prosecutor in Kretchmar's case asked the FBI to conduct forensic analysis, including CBLA, on certain pieces of crime scene evidence. ( Id. ¶ 14.) FBI Special Agent John Riley, who was a member of the FBI's crime lab, testified at trial about the results of the CBLA. ( Id. ¶ ¶ 15-16.) See also Kretchmar v. Penn., 2009 PA Super 63, 971 A.2d 1249, 1252, 1256-57 (Pa. 2009) (recounting Special Agent Riley's CBLA testimony). The jury convicted Kretchmar, and the Pennsylvania court sentenced him to a term of life imprisonment. (Compl. ¶ 17.)

On May 17, 1999, the Civil Discovery Review Unit (" CDRU" ) of the FBI's Office of General Counsel (" OIG" ) issued a memorandum naming thirteen lab examiners whose scientific work OIG had criticized in a report dated April 15, 1997. (Pl.'s Opp'n, App. A (" CDRU Memo" ), ECF No. 23, at 1-2.)[2] The CDRU Memo stated that " [t]he allegations and criticisms concerning these individuals var[y] greatly and in some instances [are] case specific." ( Id. at 1.) The CDRU Memo directed that " this document" be placed " in every investigative file containing forensic work performed by any of [the named examiners]." ( Id. ) In addition, the memorandum stated that " [i]f the forensic work contained in this file is used in any way in the future, both the OIG's findings and the forensic analysis of the [named] examiners should be reviewed" and " legal advice should be obtained as to the FBI's disclosure obligations." ( Id. ) The FBI placed a copy of the CDRU Memo at the top of Kretchmar's FBI Laboratory file. (Pl.'s Opp'n at 2.)[3]

Five years after the CDRU Memo issued, " a study published by the National Research Council of the National Academies ('NAS') assessed the reliability of the science of CBLA and its usefulness as a forensic evidentiary tool and [ ] raise[d] questions as to the usefulness of CBLA evidence." Kretchmar v. FBI, 882 F.Supp.2d 52, 54-55 (D.D.C. 2012) (alteration in the original) (internal quotation marks and citation omitted). Thereafter, in 2007 and 2008, Kretchmar submitted two separate FOIA requests to the FBI, the first of which sought " release of [Kretchmar's] bullet-lead case file" ; and the second of which requested " release of an April 15, 1997, Office of the Inspector General Report" that criticized the forensic work performed by certain lab examiners. Id. at 55.

Then, in 2009, as part of a broader CBLA review program that the FBI conducted in conjunction with the Innocence Project, the FBI and the Department of Justice reviewed the transcript of the CBLA-related testimony that Agent Riley had provided in Kretchmar's state murder case. ( See Compl. ¶ ¶ 22-25.) See also FBI Press Release, FBI Laboratory to Increase Outreach in Bullet Lead Cases (Nov. 17, 2007) (describing plan to review transcripts of proceedings " to determine

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whether the [CBLA] testimony was consistent with the findings of the FBI Laboratory in 2005, particularly concerning the inability of scientists and manufacturers to definitively evaluate the significance of an association between bullets . . . in the course of a bullet lead examination." ).[4]

On July 17, 2009, at the conclusion of Kretchmar's transcript review, the director of the FBI Laboratory sent a letter to the office that had prosecuted Kretchmar (the Buck's County Pennsylvania District Attorney's Office) informing it that the FBI had completed its review of the transcript from Kretchmar's trial. (Compl. ¶ ¶ 27-28; see also Ex. D. to Decl. of David M. Hardy (" Hardy Decl." ), ECF No. 16-2 (" Transcript Review Letter" ).) The letter explained that the " goal of the review was to determine if there was a suggestion by the examiner that a bullet fragment or shot pellet was linked to a single box of ammunition without clarification that there would be a large number of other bullets or boxes of bullets that could also match those fragments or shot pellet" because any such suggestion was not supported by science and would be " potentially misleading." (Transcript Review Letter at 1.) The letter explained that the testimony in ...

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