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
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