Judge in MLK Day Bomb Case Orders FBI to Explode New Test Bombs
The FBI was ordered Friday to build and detonate six bombs similar to the one聽 allegedly built by a man accused of planting an improvised explosive device on a Martin Luther King Jr. Day parade route in Spokane last January.
The order came from U.S. District Judge Justin Quackenbush in Spokane, just 10 days before the scheduled start of the jury trial of Kevin W. Harpham.
The judge scolded the Justice Department for 鈥渟ecretly conducting鈥� tests on August 15 at the FBI鈥檚 Quantico, Va., headquarters and not inviting defense attorneys and defense experts.
鈥淭his is the government鈥檚 fault for doing this alone without the defense [present],鈥� Quackenbush said during a 90-minute court hearing.
Federal prosecutors and the FBI built and tested three devices 鈥� videotaping the explosions and their destructive impact on mannequins 鈥� after Harpham鈥檚 public defenders disclosed they have an expert witness who questions whether the backpack bomb discovered along the parade route could have detonated.
鈥淚鈥檓 not criticizing the government for doing this at all,鈥欌�� Quackenbush told U.S. Attorney Mike Ormsby and three Justice Department prosecutors. 鈥淲hat I am being critical about is it was being done back in Quantico without any notice to the defense.
Assistant U.S. Attorney Joseph Harrington said the prosecution was prepared to show a videotape of the explosions and 101 photographs to the jury.
But the defense team, led by Federal Defender Roger Peven, indicated it will oppose the admissibility of the videotape because of its potential prejudicial effect on the jury.
Assistant Federal Defender Kim Deater said the FBI鈥檚 test devices were not exact representations of the device Harpham is accused of building and placing in a backpack along the parade route on Jan. 18. 鈥淚t seems like the [FBI鈥檚 test] components were cherry-picked,鈥欌�� she told the court.
The FBI鈥檚 bomb tests are 鈥渘ot a true and accurate depiction鈥� of the actual bomb, Deater said, and if the video of those tests is played for the jury 鈥渋t鈥檚 misleading鈥� and prejudices the defendant鈥檚 right to a fair trial.
In the FBI tests, bomb expert Richard Stricker used an 鈥渆lectronic match鈥� and not a replica of the wiring harness found in actual device, the defense attorney told the court.
Deater also questioned whether the FBI used the same amount of duct tape and other backpack components, and whether the test bombs were positioned in physical locations matching that of the actual device.
鈥淭his becomes a constitutional issue,鈥欌�� Deater argued to the court. 鈥淲e can鈥檛 do these tests ourselves.鈥欌�� To that, the judge said he would issue a court order allowing the defense鈥檚 bomb expert 鈥� retired Alcohol, Tobacco, Firearms agent Jerry Taylor, who teaches at the FBI Academy in Quantico 鈥� to build and detonate his own test devices.
鈥淲e would need additional time to do that,鈥欌�� Deater responded. 鈥淲e didn鈥檛 put ourselves in this position; the government did.鈥�
鈥淚f you鈥檙e suggesting a delay in the trial, that鈥檚 not going to happen,鈥欌�� the judge shot back.
Even with the approaching Labor Day weekend, the judge told the Justice Department to attempt to build and test the facsimile devices next Thursday at the FBI laboratory in Virginia. The defense attorneys, their investigators and expert will be in attendance and be permitted to videotape the tests.
The judge ordered the FBI to build three devices exactly like the three tested in August and three more built to the specifications of the defense bomb expert.
Harpham, a 36-year-old unemployed former soldier and electrician, remains in custody. He is charged with attempted use of a weapon of mass destruction, possession of an unregistered destructive device and use of a firearm in relation to a crime of violence. He is only the third person to be charged by the Justice Department with a federal hate crime under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009.
