Sniper Lawyers: We Didn't Know

Government lawyers are trying to figure out why Washington sniper case prosecutors and defense attorneys weren't told that a federal expert witness used in the trial has a history of making racially charged statements.

A tougher question may be why the witness still worked for the government at all.

Chemist Edward Bender acknowledged in interviews as early as 1991 he had made comments and told jokes ridiculing blacks while he worked at the FBI's world renowned crime lab. "If you ask me if I've ever used racial statements, I'll say, of course, you know," Bender admitted once to investigators in documents obtained by The Associated Press.

But rather than face discipline, Bender simply moved to the Bureau of Alcohol, Tobacco, Firearms and Explosives, another federal agency, and continued the crime lab work that ultimately brought him to the trial last week in Virginia Beach, Va., of sniper suspect John Allen Muhammad.

Muhammad and his alleged co-conspirator, Lee Boyd Malvo, are black.

CBS News Legal Analyst Andrew Cohen notes that the while the allegations about Bender do not directly address any of the central evidence at Muhammad's trial, they do set the stage for the issue to come up on appeal - if Muhammad is convicted.

The prosecutors and defense lawyers say they weren't told by the government about Bender's admissions or the investigations into his racial remarks before he was allowed on the witness stand despite a legal requirement that the government disclose all evidence that could challenge witnesses' credibility.

"I'm not sure this revelation is going to have an immediate impact" on the Muhammad trial, says Cohen, "especially if the judge is convinced that Muhammad's prosecutors did not know about this information."

Numerous legal experts interviewed by the AP said they believed the government should have divulged Bender's background. Some said it was even more surprising Bender remained as a federal expert witness, given what was learned about him in the 1990s.

"I think it is shocking, but I can't say I'm surprised," University of Michigan law professor Samuel R. Gross said, citing recent scandals that have tarnished the reputations of crime labs from Houston to Washington.

"This is like a doctor who performed operations without washing up in one hospital and then they say 'We'll just get rid of him and let him go work for another hospital,"' Gross said.

ATF officials were mum on why prosecutors and defense attorneys in the sniper case didn't know about the allegations or how Bender continued working for the government as an expert witness. Bender testified on behalf of prosecutors last week that he found residue that indicated a gun was fired from the trunk of Muhammad and Malvo's car as prosecutors have alleged.

Craig Cooley, one of Malvo's attorneys, said he was unaware of the Bender allegations but probably wouldn't challenge his findings.

ATF spokesman Bill King said, "We're looking into the matter. As these cases are in litigation, further comment is inappropriate at this time."

Justice investigators concluded in 1997 that the chemist had made repeated, inappropriate racial remarks inside the FBI lab but that his work on cases wasn't skewed.

"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 investigators reported in 1997.

Bender offered his own defense.

"I'm not puritan by any stretch of the imagination," he told investigators. "I'm sure that at some period of time I have made racial comments, sure. But they were probably used in context with maybe a joke or something like that. But there was no overt racism there."

But an FBI supervisor said 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, FBI whistleblower Frederic Whitehurst.

FBI lab worker Russell A. Gregor told FBI internal affairs 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 dismissed Whitehurst's concerns, saying he often overreacted and seemed to only make allegations when "racism is at the peak in the news, when it gets a lot of attention."

Whitehurst, who left the FBI after making a series of allegations that rocked the FBI lab and prompted numerous changes, said he was shocked when he learned that Bender was a witness in the Muhammad trial.

"The racism was so horrible," Whitehurst said in an interview. "It was so bad, and everyone knew it."