In re Ronald H. Brown ) Division No. 95-2
______________________________)
PETITION TO ORDER CONTINUATION OF THE INDEPENDENT COUNSEL'S
INVESTIGATION INTO MATTERS RELATED TO FORMER
SECRETARY OF COMMERCE
RONALD H. BROWN
Judicial Watch, Inc. ("Judicial Watch"), a public interest group, hereby petitions the Division for the Purpose of Appointing Independent Counsels ("Judicial Panel") to order the Independent Counsel appointed to investigate the activities of Ronald H. Brown, formerly the Secretary of Commerce of the United States to continue with his inquiry as set forth below. This Judicial Panel has authority to undertake this step because new evidence indicates that the death of Secretary Brown -- who was the target of a criminal investigation commenced under the Independent Counsel statute and a material witness in another important federal case involving political corruption -- was not sufficiently investigated in light of prima facie forensic evidence demonstrating that his death may not have been accidental. Additionally, career military personnel, including some of the armed services' top forensic pathology personnel, have been subjected to investigation, intimidation (including intimations about the theoretical applicability of the death penalty), and retaliation because they have voiced concerns about the inadequate investigation of the death of Ron Brown.
More important, Attorney General Reno has announced that the Clinton-Gore Justice Department will not investigate the scientifically insufficient inquiry into Secretary Brown's death, even given this credible, new evidence about his death. See Associated Press dispatch, January 8, 1998, attached as Exhibit 1. Because the Court on its own motion declined to terminate the Office of the Independent Counsel in this matter as "not currently appropriate," it continues to have jurisdiction over this case. See Order of July 14, 1997, attached as Exhibit 2. Thus, the Court has ample reason and authority, as well as the responsibility to the public, to order the resumption of the Independent Counsel's investigation and to expand the investigation into matters connected with Secretary Brown's death, including violations of the witness tampering statutes, 18 U.S.C. §§ 1512 and 1513, the laws against obstruction of justice, 18 U.S.C. §§ 1509 and 1510, and conspiracy. See In re Espy, 80 F.3d 501 (D.C. Cir. 1996). MEMORANDUM OF LAW
I. INTRODUCTION.
A. Background on Investigations of Secretary Brown.
At the time of Secretary Brown's death on April 3, 1996, while on a United States Department of Commerce trade mission in Bosnia and Croatia, an Independent Counsel appointed by this Judicial Panel was investigating him for alleged bribery and corruption. See Order Appointing Independent Counsel in re Ronald H. Brown, July 6, 1995, attached as Exhibit 3.
When Ron Brown died, he was also enmeshed in what was quickly becoming a landmark Freedom of Information Act ("FOIA") suit brought by Judicial Watch concerning the alleged sale of seats on Clinton-Gore Commerce Department trade missions in exchange for political contributions to the Democratic National Committee and the 1996 Clinton-Gore re-election campaign. In the course of discovery in this FOIA case, Judicial Watch had noticed Secretary Brown for a deposition. Inadvertently, Judicial Watch had noticed this deposition for the same week Secretary Brown was to travel to Bosnia and Croatia on his fateful trade mission. See Notice of Deposition Duces Tecum of Ron Brown, attached as Exhibit 4. At the request of the Clinton-Gore Justice Department, which was defending Secretary Brown's Commerce Department in the suit, the deposition was postponed until after his return. As Ron Brown was a material witness to the allegations of political corruption, the Court has since confirmed that it would have required his deposition, had he lived. See Transcript of Hearing, August 7, 1996, in Judicial Watch, Inc. v. U.S. Department of Commerce, Civil Action No. 95-2123 (D. District of Columbia), before the Honorable Royce C. Lamberth, attached as Exhibit 5 at 41.(1)
Following the death of Ron Brown, Judicial Watch's suit uncovered the role Mr. John Huang had played in campaign fund-raising as a Deputy Assistant Secretary at the Clinton-Gore Commerce Department. On the eve of the 1996 Presidential Election, Judicial Watch forced Mr. Huang out of hiding and took his deposition. In doing so, Judicial Watch sparked the campaign fund-raising scandal that continues to date. The sale of seats on trade missions was just one of a myriad of taxpayer-financed goods and services sold by the Clinton-Gore Administration for campaign contributions, in violation of 18 U.S.C. § 600, among other relevant criminal statutes. See fund raising materials of the Democratic National Committee and documents obtained from the files of Harold Ickes, former Deputy White House Counsel, attached as Exhibit 6.
Because of the death of Ron Brown, the Independent Counsel requested that this Judicial Panel authorize the transfer of his investigation to the Clinton-Gore Justice Department. See Order of the Special Division, November 14, 1996, and Washington Post, November 15, 1996, attached collectively as Exhibit 8. Importantly, however, this was done before Ron Brown's death was thought to be anything other than accidental. Credible new evidence suggests that this may not be the case.
B. The Flawed and Insufficient Investigation of the Death of Secretary Brown.
1. The Clinton-Gore Administration Departed From Standard Military
Procedures Concerning Air Craft Crash Investigations in Investigating the
Brown Crash.
Secretary Brown and his high-level Department of Commerce trade mission delegation were traveling on an United States Air Force CT-43 executive transport(2) piloted by an United States Air Force ("USAF") aircrew when it crashed while attempting to land at the airport in Dubrovnik, Croatia. On board were thirty-four (34) other persons, including government employees and business executives who had been invited on the Bosnia-Croatia trade mission. Lieutenant Colonel Steven Cogswell, a USAF forensic pathologist and who investigated the crash of Ron Brown's aircraft, states that long-standing Air Force crash investigation procedures were not followed, and that the USAF moved almost immediately to declare the crash to be accidental. See statements of Lieutenant Colonel Steven Cogswell in the Pittsburgh Tribune-Review, December 3, 1997, and December 9, 1997, and verified in the Affidavit of Lieutenant Colonel Cogswell, attached collectively as Exhibit 9. Although USAF policies require that all plane crashes initially be considered as resulting from undetermined causes, this was not done in the case of Secretary Brown's plane. See Transcript of Interview with Lieutenant Colonel Steven Cogswell attached as Exhibit 10 at 12-13. Instead, there appears to have been a "preconceived notion," perhaps brought about by ulterior motives on the part of the Clinton-Gore Administration, that the crash was nothing more than an accident. On the day Secretary Brown's plane went down, both the Clinton-Gore White House and the Pentagon strongly indicated that the crash was caused by bad weather. See Exhibit 8 [Pittsburgh Tribune-Review article of December 3, 1997]. Later, the USAF report on the crash concluded that weather conditions were not a contributing factor in the crash. See USAF Safety Board Report, attached as Exhibit 11 at 1, 65. Also, other high Clinton-Gore Administration officials "rushed to judgment" by labeling the crash an accident. For example, Secretary of Defense William Perry told the Associated Press a day after the crash, before any accident investigation could even be commenced, that "it was a classic sort of accident that good instrumentation should be able to prevent." See Associated Press dispatch, April 4, 1996, attached as Exhibit 12. This departure from standard USAF procedures raises questions about the thoroughness of the investigation into the causes of the crash and whether hasty conclusions were drawn for reasons of political expediency and/or to prevent the truth from being known.
2. The Clinton-Gore Administration Departed from Standard Medical and Scientific Practices in its Limited Medical Inquiry into the Death of Ron Brown and its Failure to Order an Autopsy Despite Evidence of Foul Play.
a. Overview.
Recently, career military officers and a ranking non-commissioned member of the armed forces have come forward with credible information, including sworn statements, which suggest that the cause of Secretary Brown's death was not properly and scientifically evaluated, and that the available scientific evidence raises questions about whether it was caused by a gunshot wound to the head. These personnel include medical doctors and board-certified forensic pathologists and a senior forensic photographer working at the Office of the Armed Forces Medical Examiner ("OAFME") in the Armed Forces Institute of Pathology ("AFIP") (the branch of the military which conducted "external examinations" of the bodies of Secretary Brown and the others aboard the ill-fated flight)(3). These professional military personnel and experts in different forensic pathology disciplines have come forward in the interests of medical science, the credibility of the forensic pathology profession, and, as will be seen, at considerable risks to their careers. The testimony of these career military experts reveals an apparent gunshot wound in the crown of Secretary Brown's skull when his body was examined by the OAFME staff immediately upon its return to the United States. Based on the training and experience of these experts, as well as the opinions of other independent forensic pathology experts who have since examined available evidence about the wound, the likely prima facie explanation for the hole is that it resulted from a .45 caliber bullet. Most important, the X-rays of Secretary Brown's skull, taken during an examination by OAFME personnel, clearly show what forensics experts call a "lead snowstorm," which is typically associated with gunshot wounds. Inexplicably, these X-rays can no longer be found in the military's official files, and there is evidence that other scientific evidence relevant to this point may have been deliberately altered.
b. Evidence of a Gun Shot Wound to Secretary Brown's Head Was Observed
During an External Examination, but No Follow-up Autopsy was Ordered,
as Standard Forensic Practice Requires.
When the remains of Secretary Brown and the other crash victims were returned from Croatia to the USAF Base at Dover, Delaware, OAFME personnel were on hand to conduct a medical and forensic examination of the bodies. The external examination of Secretary Brown was performed by Colonel William Gormley, an Assistant Armed Forces Medical Examiner. Chief Petty Officer Kathleen Janoski, the Chief of the Forensic Photography Division at OAFME and a twenty-two year veteran of the United States Navy ("USN"), was assigned to photograph Ron Brown's remains during Colonel Gormley examination.(4) She has offered an affidavit of her observations of the examination of Secretary Brown conducted by Colonel Gormley and subsequent events. See Affidavit of Chief Petty Officer Kathleen Janoski, USN and Pittsburgh Tribune-Review article of January 13, 1998, attached collectively as attached as Exhibit 13. Chief Janoski was present for the entire course of the external examination of Secretary Brown. Exhibit 13 at paragraph 8. Chief Janoski testified that she observed a circular hole in the crown of Secretary Brown's head while photographing the body. Based on her training and experience, which includes work with the Federal Bureau of Investigation and many cases involving deaths due to gunshot wounds, she believed the hole suggested the presence of a gunshot wound. Exhibit 13 at paragraph 8. When she remarked in an audible voice that the hole resembled a gunshot wound, she was overheard by Colonel Gormley, told to "be quiet," and "not to remark about the wound." Exhibit 13 at paragraph 8. Chief Janoski also testifies that, based on her training and experience, Colonel Gormley did not conduct a thorough examination of Secretary Brown's remains for further evidence of a gunshot wound, as she had seen doctors do in other cases when visible evidence suggested such an injury. Exhibit 13 at paragraph 10. She specifically observed that no tests for gunshot residues were ordered by Colonel Gormley, as she had observed other pathologists do in cases involving possible gunshot wounds. Id.
Lieutenant Colonel David Hause of the United States Army ("USA"), another military pathologist present during the examination of Secretary Brown, has stated he also examined the suspicious wound in Secretary Brown's head and concluded that it resembled a .45 caliber bullet wound. Colonel Hause is considered to be one of the military's leading experts on gunshot wounds. See, Pittsburgh Tribune-Review, December 9, 1997, attached as Exhibit 15. Colonel Hause states that he believes the possibility that the wound was caused by a gunshot was not properly considered during the examination of Secretary Brown's body, and that an autopsy should have been ordered in light of this possibility. Id. Another high-ranking forensic pathologist at OAFME who has examined the available evidence, including color slides showing the apparent gunshot wound in Secretary Brown's head, also has concluded that the nature of the injury is indicative of a gunshot wound, and that sound forensic practice required that an autopsy be conducted on Ron Brown. See the statements of Major Tom Parsons, M.D., USAF, in the Pittsburgh-Tribune Review, January 11, 1998, attached as Exhibit 16.
Both Colonel Hause and Major Parsons vigorously dispute that a proper death investigation was conducted by the military. Their views on this matter have been deliberately misrepresented to the press and the public by the military hierarchy, for no apparent reason other than to prevent the public from demanding a thorough scientific inquiry. This deliberate falsification of the scientific opinions offered by two high-ranking military officers alone should raise profound questions.
In addition however, respected civilian experts who examined the evidence have also concluded that the government did not properly investigate the cause of Secretary Brown's death. For example, Dr. Cyril Wecht, the medical examiner for Allegheny County, Pennsylvania, who is familiar with the evidence,(5) has rendered a professional opinion that all of the forensic evidence is consistent with a gunshot wound, and that sound practice required that an autopsy be performed on Ron Brown. See Pittsburgh Tribune-Review article of December 17, 1997, and transcript of interview with Dr. Wecht, CNBC Television, December 31, 1997, at 4, attached collectively as Exhibit 17.
Additionally, a careful examination by Lieutenant Colonel Cogswell of the aircraft wreckage and the crash site yielded no crash debris that could have caused such a wound. See generally Exhibit 9. Despite this, and despite apparent evidence of a .45 caliber gunshot wound in Secretary Brown's head, which caused trained observers to agree that further inquiry was necessary, no further investigation was ordered, nor were the necessary authorizations for an autopsy secured. This is a gross and inexplicable lapse of acceptable forensic practice, especially given the sudden, violent death of a cabinet member and thirty-four (34) other Americans on official government business in a foreign country.
Astoundingly, Colonel Gormley has offered inconsistent and changing explanations for his omissions. First, he stated that the wound in Secretary Brown's skull, which he examined after it was pointed out to him by Chief Janoski, was not a bullet wound because it did not penetrate the skull and because the brain was not visible. See Exhibit 15. He has subsequently admitted that a photograph of the wound, as well as photographs of Secretary Brown's X-rays, showed that the skull was penetrated and that Secretary Brown's brain was visible. Transcript of Television Interview with Colonel William Gormley, Black Entertainment Television, December 11, 1997, attached as Exhibit 18 at 18. He also has admitted that the hole in the crown of Ron Brown's head looked like an entrance wound from a gunshot, and that it was a "red flag" for a forensic pathologist which should have triggered a further inquiry. Exhibit 18 at 19. In fact, and even more damning, Colonel Gormley now admits that he consulted with other high-ranking pathologists present during the external examination of Ron Brown's body and they "agreed that [the hole in his head] look[ed] like a gunshot wound, at least an entrance gunshot wound." Exhibit 18 at 19. Finally, Colonel Gormley confesses that, even in such extraordinary circumstances, no autopsy of Secretary Brown was ever requested:
[b]ased on discussions at the highest level from in Commerce, at the
Joint [Chiefs of Staff] and the [Department of Defense], the White House
. . . .
Exhibit 18 at 8-9. Thus, the conclusion that the medical investigation into the causes of Secretary Brown's death was improperly influenced by pressure from the highest level of the Clinton-Gore Administration is inescapable.
Most important, because cabinet secretaries such as Ron Brown are covered by federal laws that deal with assassinations of federal officials and certain acts of terrorism, the matter should have been referred to the Federal Bureau of Investigation as soon as the apparent gunshot wound was discovered. See, e.g., 18 U.S.C. § 351. Even were this not so (as the military may contend), standard forensic practice, medical ethics, not to mention common decency, require that the Clinton-Gore Administration should have notified Secretary Brown family upon the discovery of the apparent gunshot wound and sought their permission to conduct an autopsy.
Also of importance is the additional fact that critical forensic evidence was tampered with at some point following the initial examination of Secretary Brown's remains by the military, and after political pressure prevented a thorough examination, including an autopsy. Chief Janoski, as part of her duties during the external examination by Colonel Gormley of Secretary Brown, was present when X-rays of his body, including two (2) views of his head, were placed on a light table in the examination area. She made slide photographs of these X-ray images on her own initiative and stored them away at OAFME. Exhibit 13 at paragraph 9.
In the Fall of 1996, Chief Janoski learned from Jeanmarie Sentell, a Special Agent with the Naval Criminal Investigative Service, that the X-rays of Secretary Brown's head had been destroyed after the "lead snowstorm" was discovered. Exhibit 13 at paragraph 12. Chief Janoski was told by Special Agent Sentell that such a "lead snowstorm" on X-rays is caused by the disintegration of bullet on impact. Exhibit 13 at paragraph 12. Chief Janoski also testifies that she was told by Special Agent Sentell that a second set of X-rays of Secretary Brown were made "less dense" (apparently by manipulation of the X-ray apparatus) to diminish or eradicate the "lead snowstorm" image, and that Colonel Gormley was involved in the creation of this second set of X-rays. Exhibit 13 at paragraph 12. Chief Janoski testifies that, although she had photographed the first set of X-rays of Secretary Brown's skull, she never made photographs of this second set, nor did she order the other AFIP photographer's under her command at Dover to make such photographs. Exhibit 13 at paragraph 13. Tellingly, Colonel Gormley admits that it is standard AFIP practice for remains readied for examination to be X-rayed before being presented to pathologists in the examination area. Exhibit 18 at 9. Thus, it seems likely that no "second set" of X-rays of Ron Brown were ever made, and that, because a second set of X-rays has never been located, this story is simply a red herring concocted after the fact.
Upon being informed by Special Agent Sentell of the destruction of the first set of X-rays, Chief Janoski recalled that she had also made slide photographs of these same X-rays showing the "lead snowstorm." Exhibit 13 at paragraphs 9 and 13. Chief Janoski showed these slides to Colonel Cogswell after her discussion with Special Agent Sentell, and he concluded that the images indeed showed a "lead snowstorm" effect indicative of a gunshot wound. Id.
In fact, Chief Janoski determined that official photographs of the X-rays of Ron Brown's head showing the "lead snowstorm" had never been made part of official military file, as is standard OAFME operating procedure. Exhibit 13 at paragraphs 15 and 16. Thus, the slides made by Chief Janoski on her own initiative, with their tell-tale signs of a "lead snowstorm" typically associated with gunshot wounds, are likely the only remaining images of Secretary Brown's head X-rays, and the Court should order them taken into safekeeping by the Independent Counsel immediately
Not surprisingly, after the Pentagon learned of this evidence that contradicted the official explanation for the cause of Secretary Brown's death, it ordered a "Command Investigation" into the circumstances surrounding the disclosure of this evidence, as well as the disclosure of information about the dispute within OAFME concerning the cause of Secretary Brown's death and the adequacy of the OAFME inquiry into that cause. See Exhibit 13 at paragraphs 17 and 18. Despite being told that the investigation was an informal inquiry into improving administrative and communications procedures at OAFME (see Exhibit 13 at paragraph 18), persons subject to this investigation, including Chief Petty Officer Janoski, were warned by the investigators to seek legal counsel. See Exhibit 13 at paragraph 24. During the course of this investigation, OAFME also placed senior military officers under the equivalent of "house arrest," searched their homes without a search warrant, and even raised the theoretical applicability of the death penalty to these matters under certain provisions of the Uniform Code of Military Justice. See Washington Times, December 28, 1997, attached as Exhibit 19 and Letter, Larry Klayman, Esq. and Don Bustion, Esq., to Colonel Barry Thompson, OAFME, December 31, 1997, attached as Exhibit 20. Yet, on January 8, 1998, Attorney General Reno announced that the Clinton-Gore Administration would not investigate the the military's inquiry into Secretary Brown's death. See Exhibit 2.
II. DISCUSSION.
The Independent Counsel statute allows this Judicial Panel to order the continuation of the investigation of Secretary Brown. See 28 U.S.C. § 591 et seq. Under the statute, after an Independent Counsel is appointed, the appointing judges retain jurisdiction over all matters relating to the tenure and activities of the Independent Counsel. They also retain full authority to expand the mandate of the Independent Counsel to investigate matters related to the original appointment. See 28 U.S.C. § 594(e) and In re Espy, 80 F.3d 501 (D.C. Cir. 1996). Surely, the failure to inadequately investigate the violent death of the target of an investigation, who was also a material witness in another major case, is a matter related to the subject of the original investigation. Importantly, it would not be an expansion of the original investigation, since Secretary Brown was its target and his death may have been related to frustrating its conclusion.
In this case, the Independent Counsel reported to this panel that his investigation "should not continue" solely because of the death of Ron Brown. This conclusion was reached when the death of Secretary Brown was thought to be wholly accidental, and before credible, non-partisan expert witnesses of the highest professional standing and with direct personal knowledge of the facts came forward to make public their concerns about the need for a credible inquiry into his death and the previous investigation of it.
For if the death of Ron Brown was other than an accident, then it may also be part of a plan to obstruct the Independent Counsel's investigation, especially because there are indications that the matters under his inquiry may have reached persons beyond Ron Brown.(6) This would also constitute a fraud upon the Court and a complete miscarriage of justice.
Because this investigation was prematurely terminated on the basis of incomplete and erroneous evidence, including the wholly premature and unwarranted assumption that the death of Ron Brown was only an "accident," this Court has full authority under the independent counsel statute to order the resumption of the investigation. While not even necessary given the fact that a putative defendant was killed, without the concurrence of the Attorney General, the Court may even expand the expand the scope of the independent counsel's investigation by referring to him the obviously related matters concerning the cause of Ron Brown's death and the demonstrably inadequate investigation of his death by government officials. See In re Espy, 80 F.3d 501 (D.C. Cir. 1996) and 18 U.S.C. § 594(e). Moreover, aside from any statutory provisions preserving the Court's authority to order the Independent Counsel to resume this investigation, the federal courts have inherent constitutional authority to protect their jurisdiction and to take steps necessary to make that jurisdiction effective. U.S. v. Alsbrook, 336 F. Supp 973 (D.D.C. 1966).
III. CONCLUSION.
Were not for the dedicated, professional military personnel from the Armed Forces Institute of Pathology who have come forward, the public would have never known the truth about the inadequate forensic investigation into Secretary Brown's death and the apparent cover-up of evidence of a gunshot wound to his head.
Petitioner respectfully submits that these matters should be of grave concern to this Judicial Panel, since they provide credible evidence that the Panel's authority and processes may have been deliberately flaunted, to put it mildly. Under these circumstances, the Court has ample authority, both under the Independent Counsel statute and its inherent supervisory powers, to address this apparent obstruction of justice. Thus, the investigation of the Independent Counsel into the activities of the late Commerce Secretary Ron Brown should be continued to include the unusual circumstances surrounding his death.
Respectfully submitted,
JUDICIAL WATCH, INC.
_______________________
Larry Klayman, Esq.
D.C. Bar No. 334581
_______________________
D. R. Bustion, II, Esq.
D.C. Bar No. 268094
501 School St., S.W.
Suite 725
Washington, DC 20024
(202) 646-5172
Attorneys for Petitioner
1. Petitioner also respectfully calls the Court's attention to another apparently as yet unsatisfactorily investigated death at the Clinton-Gore Commerce Department. Mrs. Barbara Wise, reportedly an employee in the International Trade Administration -- the same section that employed John Huang and which was the instrumentality for illegal activities at Clinton-Gore Commerce Department -- was found dead and naked in a locked office at the Department's headquarters. To Petitioner's information and belief, her death is still without a satisfactory explanation. See Washington Times article, November 30, 1996, attached as Exhibit 7. This perhaps related death should also be investigated by the Independent Counsel.
2. This the military equivalent of a Boeing 737 commercial aircraft.
3. No autopsy was done on Secretary Brown. See the discussion below.
4. Chief Janoski is a Democrat and a former volunteer at the Clinton White House. See Exhibit 14.
5. Dr. Wecht is a registered Democrat.
6. As reflected in this Court's Order appointing an independent counsel, a number of other individuals were also under investigation for alleged acts in concert with Secretary Brown, and those persons surely have evidence and information which may lead to relevant evidence. For instance, Secretary Brown's son, Michael, was also involved in the inquiry, and has recently pleaded guilty to criminal charges in the probe which was commenced by the U.S. Department of Justice when the independent counsel investigation terminated upon the Commerce Secretary's death. See Associated Press dispatch, November 11, 1997, attached as Exhibit 21. As a condition of Michael Brown's probation, he is required to cooperate with investigators. See Exhibit 22.