Kretchmar v. Fed. Bureau of Investigation, Civil Action No. 12-1551 (KBJ)
| Decision Date | 27 March 2014 |
| Docket Number | Civil Action No. 12-1551 (KBJ) |
| Parties | GARY L. KRETCHMAR, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
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 thatDefendants 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. ( ), ECF No. 16; Suppl. Mot. to Dismiss or in the Alternative, for Summ. J. on Counts I & II, ECF No. 39 ( ).) Because Kretchmar cannot establish that Defendants deprived him of due process, nor can he claim any injury under the APA, the Court will GRANT 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., 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 whether the [CBLA] testimony was consistent with the findings of the FBI Laboratory in 2005, particularly concerning the inabilityof 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 Kretchmar's case had been reviewed in light of that goal, and stated that "it is the opinion of the FBI Laboratory that the examiner properly testified to the results of [the CBLA] examination." (Id.)5
Thereafter, in response to Kretchmar's outstanding FOIA requests, the FBI released to him (1) a copy of the 1999 CDRU Memo, (2) a copy of the 2009 Transcript Review Letter that the FBI Laboratory had sent to the Pennsylvaniaprosecutor, and (3) copies of various working papers associated with the FBI's transcript review. (Pl.'s Opp'n at 4-5.) See also Kretchmar 882 F. Supp. 2d at 55 (). Upon receiving and reviewing these materials, Kretchmar requested that the FBI amend the Transcript Review Letter and the related working papers because, in his view, those documents were "not accurate or complete, because the FBI Laboratory Bullet Lead Transcript Review agency action did not include a mandatory review of the April 15, 1997 OIG Report findings and/or the forensic analysis of the Laboratory Examiner(s) who analyzed the evidence contained in" his file. (Ex. A. to Hardy Decl., ECF No. 16-2, at 2-3 (emphasis in original).) The FBI denied Kretchmar's request (Compl. ¶¶ 52-53), and this lawsuit followed.
As noted above, Kretchmar alleges in the complaint that Defendants violated the Due Process Clause and the APA by failing to (1) evaluate the impact of the 1997 OIG findings as discussed in the CDRU Memo on the forensic testimony presented in his case, or (2) "review the forensic analysis contained in [plaintiff's] Laboratory file[.]" (Pl.'s Opp'n at 18-20.) Significantly, Kretchmar maintains that these actions were required pursuant to "the May 17, 1999 CDRU intra-agency memorandum." (Compl. ¶ 34.) In their motion to dismiss, or in the alternative, motion for summary judgment, Defendants maintain that Kretchmar's due process claim fails to state a claim upon which relief can be granted because he has failed to identify any life,liberty, or property interest that Kretchmar was deprived of when the agency did not review the forensic analysis in his file and the 1997 OIG findings addressed in the CDRU Memo, nor does he state any facts to support his claim that Defendants had any obligation to conduct such a review. (Defs.' Suppl. Br. at 7-8.) Defendants further argue that Kretchmar's APA claim fails because he has not identified any injury-in-fact that he suffered as a result of Defendants' actions. (Id. at 9-10.) In opposition to the motion, Kretchmar argues that he has "a right, or right of expectation" under the Due Process Clause that Defendants would follow the guidance in the CDRU Memo when reviewing the transcript and evidence from his trial, and that he "has identified the loss of a liberty interest due to a procedurally deficient [Bullet Lead Transcript Review] administrative decision." Summ. J. on Counts One & Two, ECF No. 42 ( ), at...
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