WASHINGTON -- A government chemist who testified in the Washington sniper case kept a "sloppy" office that raised concerns of contaminated evidence and has made numerous racially insensitive remarks, according to evidence the government has had for more than a decade.
The Virginia prosecutor handling the trial of sniper defendant John Muhammad said Thursday he wasn't aware of the information, obtained by The Associated Press, before he put government chemist Edward Bender on the witness stand last week.
Mohammad's attorneys declined comment.
The government and prosecutors are required under a Supreme Court ruling known as Brady v. Maryland to provide defendants with all "material" information affecting their case, including derogatory information that could impact the credibility of prosecution witnesses.
FBI and Justice Department documents obtained by AP detail testimony from colleagues and supervisors that Bender made racist comments raising doubts about his impartiality.
A supervisor and "Bender continually and loudly expressed strong racial prejudice using such words as 'jungle bunnies' and 'niggers' repeatedly," a 1991 FBI memo stated, recounting allegations from one of Bender's lab colleagues.
In government interviews, Bender never admitted using those words but acknowledged making racial comments. He insisted it never affected his work.
"If you ask me if I've ever used racial statements, I'll say, of course, you know," Bender told Justice officials in 1996. "But do I have, you know, is there like some kind of history that you would look and say, oh, this is black, he's got to be guilty? No."
Officials of the Bureau of Alcohol, Tobacco and Firearms said Thursday they were aware of the documents and were meeting with lawyers and prosecutors. They declined immediate comment.
The documents state that Bender escaped possible punishment or further investigation when he transferred from the FBI to ATF.
Bender also told Justice officials he kept a messy office near his lab analysis area where explosives evidence occasionally was brought, acknowledging it was possible evidence could have been contaminated.
Bender, now an ATF chemist, testified on behalf of prosecutors last week at the trial of Muhammad, who along with Malvo is black. The chemist testified he found residue that indicated a gun was fired from the trunk of their car as prosecutors have alleged.
Craig Cooley, one of Malvo's attorneys, said the defense team, which is set to begin his trial Thursday, was unaware of the Bender allegations.
Jonathan Shapiro, an attorney for Muhammad, was sent Wednesday night a summary of the information gathered by AP but did not return repeated calls for comment as he prepared for closing arguments Thursday.
Richard A. Hibey, a former federal prosecutor, said the evidence of Bender's specific racial statements should have been disclosed by the government to defense lawyers under the Brady requirement. Hibey compared the situation to racist comments Los Angeles police detective Mark Fuhrman was questioned about in the O.J. Simpson double-murder case.
"What has happened here is there is a black defendant and there is a witness in the past who apparently made racist remarks and who by making those statement has opened himself up to cross-examination on his credibility," Hibey said.
Allegations that Bender made derogatory comments about the facial characteristics of blacks and made other racial statements inside the FBI lab first surfaced in 1991 from then-Agent Frederic Whitehurst, a whistleblower on problems inside the FBI lab.
By 1996, Justice officials had confirmed the comments.
"Our investigation confirms that Bender inappropriately made racial comments while employed as a technician in the laboratory, but we do not find evidence that his remarks or his racial views affected his work in particular cases," the Justice inspector general reported.
FBI internal affairs investigators had interviewed several lab employees, including Bender himself, and were told about racial comments Bender made, often in conversations with a supervisor named Terry Rudolph.
"During numerous conversations with SSA Rudolph, Rudolph acknowledged Bender's strong racial prejudice," a Jan. 4, 1991, FBI memo stated. "His attitude and suggestions at the time made it clear that Bender's racial prejudice drove his work product and had effected (sic) even who could receive training," the memo stated, relating Whitehurt's concerns.
FBI lab worker Russell A. Gregor provided a sworn statement to FBI internal affairs investigators in December 1991 that "I have had occasions where I have heard Ed Bender make remarks which I would consider racial remarks."
"He joked a lot about blacks' facial features," Gregor said. "I do not consider Bender to be a serious bigot. He would make offensive remarks about anybody."
Bender insisted he wasn't a racist, but that he made racial remarks and jokes.
A 1992 FBI interview report quoted Bender as recounting "discussions which occurred after either he or Rudolph saw a street person out the window who was generally black. The comments would include a question as to whether that individual was formerly the mayor of a given city."
In his 1996 interview with Justice officials, Bender said his racial statements never affected his work.
"I'm sure that at some period of time I have made racial comments, sure," Bender said. "But they were probably used in the context with maybe a joke or something like that. But there was no overt racism there."
Bender said he never got along well with Whitehurst and accused him of overreacting.
The same documents also raised questions about Bender's work habits.
A 1995 Justice Department interview with former FBI lab supervisor James Corby stated that "Bender's work was also sloppy, but he was capable and generally did a good job." A year later, Corby told investigators "Ed Bender's a very good chemist. He's sloppy though. He is sloppy."
Whitehurst raised similar concerns in a 1995 memo to Corby.
Bender "would not label instrumental output, follow protocols, wash glassware, clean the laboratory, leave his work area in clean condition though he worked trace analysis, was generally insubordinate and openly and extremely racially biased using racial slurs often in my presence."
Bender acknowledged he kept his work area and desk, adjacent to where he performed lab tests, unkempt with lots of paper. "I mean that would, in the dictionary definition, probably be sloppy," he said.
But he insisted he followed procedures to protect against contaminating evidence.
When Bender acknowledged he and others occasionally brought evidence from the lab area into his messy office, Justice investigators questioned whether it was possible evidence could have become contaminated or left behind trace explosive residue that could contaminate future evidence.
"There's always a possibility," Bender replied. But he added, "Paper on a desk is not a contaminant."