The FBI was ordered Friday to build and detonate six bombs similar to the one 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 “secretly conducting” tests on August 15 at the FBI’s Quantico, Va., headquarters and not inviting defense attorneys and defense experts.
“This is the government’s fault for doing this alone without the defense [present],” Quackenbush said during a 90-minute court hearing.
Federal prosecutors and the FBI built and tested three devices — videotaping the explosions and their destructive impact on mannequins — after Harpham’s public defenders disclosed they have an expert witness who questions whether the backpack bomb discovered along the parade route could have detonated.
“I’m not criticizing the government for doing this at all,’’ Quackenbush told U.S. Attorney Mike Ormsby and three Justice Department prosecutors. “What 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’s 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. “It seems like the [FBI’s test] components were cherry-picked,’’ she told the court.
The FBI’s bomb tests are “not a true and accurate depiction” of the actual bomb, Deater said, and if the video of those tests is played for the jury “it’s misleading” and prejudices the defendant’s right to a fair trial.
In the FBI tests, bomb expert Richard Stricker used an “electronic match” 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.
“This becomes a constitutional issue,’’ Deater argued to the court. “We can’t do these tests ourselves.’’ To that, the judge said he would issue a court order allowing the defense’s bomb expert — retired Alcohol, Tobacco, Firearms agent Jerry Taylor, who teaches at the FBI Academy in Quantico — to build and detonate his own test devices.
“We would need additional time to do that,’’ Deater responded. “We didn’t put ourselves in this position; the government did.”
“If you’re suggesting a delay in the trial, that’s not going to happen,’’ 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.