FBI agents' work faulted

THE BALTIMORE SUN

A Department of Justice inspector general report obtained by The Sun found "credible evidence of serious misconduct" by agents from the Federal Bureau of Investigation's Baltimore division who investigated the death of federal prosecutor Jonathan P. Luna two years ago.

The previously undisclosed report gives new insight into the frenzied first days of the unsolved Luna investigation - with FBI agents delving into the private life and mysterious death of the assistant U.S. attorney discovered dead Dec. 4, 2003, with 36 stab wounds, lying in a remote Pennsylvania creek.

As investigators interviewed his former colleagues in the high-profile case, FBI agents soon turned against one of their own, asking about rumors of an affair between the female agent and Luna, the report said.

The female agent later filed an internal complaint charging that the FBI's then-acting special agent in charge of the Baltimore division, Jennifer Smith Love, improperly ordered two agents to interrogate her and approved an illegal search of her computer.

The FBI's internal investigators found that the interview cut out the very investigators assigned to lead the probe into Luna's death, focused on an FBI agent who had been ruled out as a likely suspect and caused dissention in an office under enormous pressure to find out how the federal prosecutor died, the report said.

But senior FBI officials cleared Love, as well as the two agents who conducted the interrogation, of misconduct and took no disciplinary action, according to the report.

About two months later, on Aug. 17, 2004, the Justice Department's inspector general's office opened its own investigation, eventually finding enough "credible evidence" of wrongdoing to conclude that the case should have been sent through the FBI's formal disciplinary process, rather than handled as a less severe performance issue.

"There was at least something there that should have been investigated more," Bruce Gebhardt, who was the FBI's deputy director during the initial investigation, said in an interview.

The inspector general's 28-page report - authenticated to The Sun by the FBI - reached no final conclusion about whether Love, acting assistant Special Agent in Charge Linda B. Hooper and Special Agent Marina Murphy did anything wrong.

But the report chastised the FBI officials for ending their internal investigation too quickly. Even before the inspector general's office completed its investigation in February, two of the three agents were promoted, including Love, who became a section chief in the FBI's now-revamped counterterrorism division in Washington.

The inspector general's inquiry also concluded that the premature ending of the internal investigation perpetuated a widely held belief inside the FBI that "senior managers are given more lenient treatment in the disciplinary process."

On Friday, the FBI confirmed that the agents, including Love, were investigated again after the inspector general report was finished. Again, senior FBI officials said they concluded that no wrongdoing had been committed.

In a prepared statement, Love denied the "false, malicious" accusations, saying she had been formally cleared by the FBI of any wrongdoing this past September.

Hooper, who is retired, could not be reached for comment. Murphy, who is still in the Baltimore office, did not return a call last week.

Publicly, investigators say they remain puzzled how Luna, 38, ended up facedown in a shallow creek in rural Lancaster County, Pa., 70 miles from his downtown Baltimore office. His Honda Accord was nearby with its engine running. Authorities say the cause of death was drowning.

The Lancaster County coroner's office ruled Luna's death a homicide. But other evidence - his knife at the scene, his significant debt and his failure to take a polygraph test for an internal investigation into $36,000 of missing money from drug cases - could indicate that he committed suicide by stabbing, according to law enforcement sources.

The female agent who filed the initial complaint - dubbed "Agent Smith" in the inspector general's report as an alias to protect her identity - never became a suspect in his death. Her attorney refused to confirm her name, adding that she did not want to talk about the case.

A source familiar with her situation said that the FBI will continue to pay off her student loans, which the bureau could have declined to do. The bureau also gave her a choice for her next post, a relatively rare move for a junior agent, according to the source. The source spoke on the condition of anonymity because the issue is an internal FBI personnel matter.

In a prepared statement released Friday, FBI officials in Washington said they followed through on the recommendations of the inspector general and referred the case to the FBI's Office of Professional Responsibility for adjudication.

"As a result, the actions of several employees were examined, and while no misconduct was found, performance issues were identified and for the on-board employees, remedial action was taken," the statement said. Michael R. Kortan, section chief of the FBI's office of public affairs, declined to comment further on the remedial action.

In her statement, Love said in part that "for the past two year[s], my family and I have watched in painful silence as my eighteen-year career, and my personal and professional reputations were viciously attacked and tarnished."

Love said she filed her own complaint with the FBI director about abuses she suffered at the hands of FBI internal investigators.

The inspector general's report on the Luna investigation comes on top of several previous examinations of unfair treatment of FBI employees in the disciplinary process.

In 2002, the Justice Department's inspector general concluded that "the FBI suffered and still suffers from a strong, and not unreasonable, perception among employees that a double standard exists within the FBI" regarding lenient treatment of supervisors while junior agents face more severe discipline. An independent commission report in February 2004 echoed those concerns about how agents are investigated and disciplined.

FBI officials in Washington said Friday that reforms recommended by the commission have been implemented, including the separation of those responsible for investigating allegations of wrongdoing from those making disciplinary decisions. Egregious cases are now automatically referred to the Office of Professional Responsibility for possible discipline, officials said.

But FBI Agents Association President Frederick E. Bragg believes that a review of the inspector general's report on the Luna case shows that more must be done.

"We're confident the director will take these important findings and recommendations under advisement and make any necessary adjustments in the OPR process," Bragg said, referring to the Office of Professional Responsibility. "Equity in this process is essential for its credibility."

U.S. Sen. Charles E. Grassley, an Iowa Republican and longtime critic of FBI disciplinary practices, said Friday that the report is just another indication that the bureau's system of policing its own needs constant monitoring.

"This is going to be an ongoing battle because of the culture in the FBI is still that there is more lenient treatment for senior managers than the lower-ranking FBI employees," he said.

In the inspector general's report on the Luna investigation, witnesses describe an intense, at times chaotic environment, in which FBI agents grilled a fellow agent for more than four hours in the days after the prosecutor was found dead.

Agents decided to question everyone listed in Luna's personal digital assistant device. The agent known as Smith in the report was interviewed two days after Luna was found.

According to the report, Smith said she had worked with Luna on four of her cases. They had also worked out at the same Baltimore health club and socialized in group settings, she told an investigator on the case.

Their relationship, Smith said, had always been "professional and appropriate," according to the report.

It was a second interview of Smith, on Dec. 12, 2003, that raised concerns, the inspector general found.

Hooper and Murphy - and not the lead agents looking into Luna's death - were selected to speak with Smith, but the inspector general wrote that it was unclear who ordered them to conduct the interview.

Love said the idea came from Peter Brust, who supervised the Luna investigation, according to the inspector general's report. But Brust disputed the account, recounting to the inspector general's office that he told Love the second interview was "irrelevant to the murder investigation."

Smith's interview with Hooper and Murphy was "adversarial from the moment we entered the room," according to Smith's account in the inspector general's report.

"There was no 'good cop/bad cop' technique, just 'bad cop/worse cop,'" Smith told internal investigators. According to the report, Hooper denied that it was confrontational.

Smith said Hooper and Murphy accused her of being "sexually aggressive, advertising her sexual availability within and outside the FBI, and of having inappropriate personal and sexual relationships with married" federal prosecutors, according to the report.

When Hooper and Murphy talked to internal investigators, they denied the charge but acknowledged that they asked Smith about her "flirting."

At the end of the interview, Smith said, she was humiliated, according to her account to investigators. Colleagues later described her as "extremely distraught" and an "emotional wreck."

Smith gave the FBI permission to search her personal laptop and PDA, according to the report. But after talking to an attorney, she revoked her consent three days later, on the morning of Dec. 15, 2003.

The FBI searched her laptop anyway the next afternoon. Several witnesses told investigators that Hooper pushed for the search despite knowing about the revocation. Hooper denied the allegations, according to the report.

Smith filed an official complaint about her treatment in January 2004. On Feb. 11, 2004, CBS News broadcast a segment about the internal investigation and named Love as a possible subject of the internal FBI probe.

In response, Cassandra Chandler, the head of the FBI's public affairs, authorized a press release the next day saying that "at no time was acting Special Agent in Charge Jennifer Smith Love the focus of the internal inquiry."

The statement was technically true at the time, according to the inspector general's report. But Love became a focus of the internal inquiry a month after the statement was released, according to the report.

More disturbing to other senior FBI officials was the idea of any press release commenting on an open internal investigation, the inspector general found.

Chandler and Love have been close friends for years and godmothers to each other's children, according to the report. Several senior FBI officials told internal investigators that the press release could have been seen as a favor to Love, according to the report. But Chandler told internal investigators the press release was issued only because she believed that the allegations were false, the report said.

The report said FBI official William Chase told internal investigators that he was "horrified" by the release, fearing it would be seen as a "put up job."

Through a spokesman, Chandler, now the special agent in charge of the FBI office in Norfolk, Va., declined to comment.

During the initial internal FBI investigation, Hooper and Murphy received harsh criticism, including from one investigator who called the agents' work "shoddy," according to the inspector general's report.

As evidence, Toni Fogle, a section chief for the FBI's Internal Investigations Section, cited "confusion in the [Luna] investigation, Love and Hooper isolating themselves from the rest of the investigation, little or no sharing of information, the exclusion of the original case agents from the second Smith interview and only women conducting the second interview," according to the report.

Fogle concluded that the agents didn't need to be disciplined, according to the inspector general's report. But the report said Fogle was so disturbed by the actions of Love, Hooper and Murphy that she took an unusual step - ordering that poor performance letters be written for their personnel files.

Baltimore FBI Special Agent in Charge Kevin Perkins received the letters but never acted on them before Love and Hooper received promotions, according to the inspector general. Perkins declined to comment through a spokesman.

A source familiar with the process said that other senior officials in Washington knew about the letters when the promotions were under consideration and that Perkins was not intimately involved in the promotions process. The source spoke on the condition on anonymity because the FBI does not talk publicly about specific personnel issues.

The fates of Love, Hooper and Murphy were in the hands of Steven McCraw, the FBI's assistant director of the inspection division. McCraw, who is now the director of homeland security for Texas Gov. Rick Perry, declined to comment last week.

During the investigation, McCraw was contacted by Gary Bald, now head of the FBI's intelligence and terrorism branch, the report said. Bald knew Love from their days when he ran the Baltimore division, and he wanted Love for a job in his counterterrorism office, according to the report.

"Bald said he was not trying to influence the outcome of the investigation in his conversations with McCraw," the report said.

McCraw could have sent the case to the Office of Professional Responsibility, where Love, Hooper and Murphy might have been disciplined, or he could have decided to treat the issue less severely as a "performance matter," according to the report.

Hooper and Murphy were "so fundamentally stupid, he would not want them investigating anything for him," McCraw told internal investigators. He added that he thought Love showed "poor judgment."

Nevertheless, McCraw ruled that the agents acted poorly but had not committed misconduct.

Among his critics was Jody Weis, who worked in the FBI's disciplinary division and now leads the FBI's criminal division in Los Angeles. He later told the inspector general's office that McCraw had made a "huge mistake," according to the report.

The report also showed that McCraw had a deep distrust of the FBI's disciplinary system. He told internal investigators that he had "no confidence" in the Office of Professional Responsibility, saying that cases there go to "OPR hell."

In the end, the inspector general's office concluded that McCraw had not been improperly influenced by senior officials like Bald in reaching his decision. Instead, the inspector general concluded, McCraw himself exhibited "poor judgment."

Gebhardt, who is retired from the FBI and is now senior vice president for global security at MGM Mirage in Nevada, told the inspector general's office that he had voiced concerns to McCraw about the decision.

In an interview last week, Gebhardt cautioned that there are a lot of people who fall under investigation accused of things that they didn't do.

Still, he said, the probe of the Luna investigation should have received a deeper examination earlier. "There were just a lot of issues going on, and we didn't have the answers to all of them."

matthew.dolan@baltsun.com

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