ML20249C648

Expresses Appreciation to NRC for Actions Throughout Past Two Years Re Licensed Employee at Mit Research Reactor Indicted by Commonwealth of Massachusetts on Eight Felony Counts Plus Perjury.Trial Held & Individual Acquitted

ML20249C648
Person / Time
Site:	MIT Nuclear Research Reactor
Issue date:	06/25/1998
From:	Bernard J MASSACHUSETTS INSTITUTE OF TECHNOLOGY, CAMBRIDGE
To:	Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM)
References
NUDOCS 9806300496
Download: ML20249C648 (3)

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NUCLEAR REACTOR LABORATORY AN INTERDEPARTMENTAL CENTER OF ,

MASSACHUSETTS INSTITUTE OF TECHNOLOGY f JOHN A. BERNARD 138 Albany Street, Cambridge, MA 02139-4296 Actwation Analysis Dir:ctor Teletar No. (617) 2gN02 ' ' " '

• D Dir:ctorof ReactorOperations Tet No. (617) Nuclear Medmine Pnncipal Research Engineer Ructor Engineenng June 25,1998 Shirley Ann Jackson, Ph.D Chairman U. S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Chairman Jackson:

I am writing to thank the U. S. Nuclear Regulatory Commission for its actions throughout the past two years relative to a licensed employee at the MIT Research Reactor.

As you may be aware, one of our senior reactor operators was indicted by the Commonwealth of Massachusetts on eight felony counts plus perjury in June 1996. These charges had nothing to do with the individual's MIT responsibilities. Also, they did not involve substance abuse. The felony charges carried a sentence of five years in prison while that for perjury was as much as twenty years. After repeated delays by the prosecution, a trial was finally held for the individual in May 1998 on four of the felony counts plus the perjury charge. I am very pleased to inform you that the individual was acquitted on all five counts and that the prosecution then dismissed the remaining four charges. Those of us, both at MIT and at NRC, who knew the individual realized from the outset that the charges had to be a mistake because the accused was a person ofintegrity.

This was established during the trial. Specifically, the original allegations that formed the basis of the indictment were shown to be the combined result of a deliberate frame-up undertaken by the actual perpetrator, sloppy police investigatory work, and in one instance an outright " misstatement" by the police investigator. These charges should never have been filed.

In June 1996, the U.S. Nuclear Regulatory Commission chose to respect the /g '

defendant's right to due process. The Massachusetts Institute of Technology did likewise.

Both the NRC and MIT deserve enormous credit for having acted responsibly so as to discharge their resoective obligations for public safety and at the same time to have preserved the accused's ability to defend himself by allowing him to retain his SRO license - 7f20 and thereby remain employed.

Situatices of this type are infrequent and no set policy could possibly anticipate every eventuality. Accordingly, the consequences that can result from the actions of employer / regulator under these circumstances are enumerated here. The point is that continued employment is vital to an accused person's capability to defend himself or herself successfully. This is particularly true if the individual is innocent and hence unprepared both financially and emotionally for the possibility of an indictment.

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Chairman Jackson Y June 25,1998 f Page 2

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-A successful defense requires many person-months of preparatory time, superb ,

legal counsel, and a positive emotional state. The first two of these conditions require money. The third de xnds on there being continuity in one's life. - All three can be

- significantly impactec. by the actions of one's employer, and in this case, also by a

- regulator.

f(a) Preparation: The defendant and colleagues at MIT who volunteered their time, spent evenings and weekends for months pouring through telephone bills, console logs, minutes of meetings,. inspection reports, and other records in order to establish alibis.- Also, every word of Grand Jury testimony, every police interview, and every prosecution exhibit was carefully reviewed for accuracy and inconsistencies. This was necessary in order to dislodge the prosecution's case.

An activity of this type simply cannot be done if the defendant is in jail. Hence bail is crucial and bail requires money, $50K cash in this case. (In fact, it appears that a

- prosecution strategy is to impose an excessive bail, imprison the accused, and then delay trial If the accused has a family, he has little choice but to plead to whatever

. deal can be arranged. To risk a trial and hence a full sentence without the

- opportunity for proper preparation would be foolish.)

'.(b) - Legal Counsel: Competent legal counsel and detective services are crucial to a successful defense. But much more is involved than mere knowledge of the law.

The defense attorneys need to learn every aspect of the accused's activities as well as those of the accusers. Trivial details (someone took a smoking break, the name of a bookstore on the street corner where an alleged meeting occurred)'can be used

- to correct honest witnesses with faulty memories and to expose ones who are  ;

deliberately lying. It is an incredible effort that requires both an extraordinary -  !

professionalism in terms of knowledge of the facts of the case and also an l unparalleled emotional commitment in terms of support for the defendant. This in -

turn costs money, more than $100 K in this instance. 'I am pleased to state that the l defendant retained two very exceptional attorneys - men of integrity, compassion, and determination. -

'(c) Emotional State: . People define themselves through their jobs and their

- colleagues. Loss of employment and/or loss of contact with ones colleagues will cause emotional stress. If that stress is added to the one that exists as the result of an indictment, the result can be overwhelming. Continuity is essential under these H circumstances. Work and friends provide relief from the worry and trauma of what might happen if a conviction were to result. Also, they provide a much needed

- perspective that enables a defendant to keep fighting. An employer, and in this L ,

case, a regulator's willingness to retain an accused individual can be vital to the

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outcome. Loss of one's job under these circumstances means that bail cannot be L

raised, that competent legal counsel cannot be obtained, and that the emotional

support that comes with the daily routine of one's life is lost. There is no doubt in ,

n ~my mind that many people plead guilty when they are in fact innocent. They do this i E

- because an unfair prosecutorial syste_m places the burden of proof on them and if

'p they are also abandoned by their employers and friends, they have no alternative.

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This is why, in this instance, the U. S. Nuclear Regulatory Commission and the Massachusetts Institute of Technology both deserve credit and recognition. The

. easy path would have been to dismiss the employee or to have placed him on i

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I . June 25,1998

y. Page 3 unpaid leave. The harder path was to continue his employment as a licensed senior reactor operator while at the same time acting to ensure that public safety was maintained. This was achieved here by recognizing that the charges ' vere unrelated to the accused's duties at MIT. Hence, the only issue was one of emotional stress.

Would the defendant's judgment in the performance of his regular duties be unaffected? NRC and MIT worked together to establish a mechanism for ensuring that any undue stress would be identified and resolved. This approach was previously described to NRC and I am pleased to report that it functioned perfectly.

There are many individuals at NRC who deserve mention for their conduct. I would particularly like to thank Mr. Thomas Dragoun who, at his own expense, provided testimony relative to the defendant's integrity. (In this regard he was joined by myself Dr.

Robert Zamenhof, Co-Principal Investigator of the Neutron Capture Therapy Trials at Beth Israel Deaconess Medical Center; Mr. David O'Connor, Head of the City of Cambridge's Emergency Preparedness Division; and Mr. Lincoln Clark, former Director of Reactor Operations at the MITR.) Dr. Seymour Weiss also merits special appreciation as do Mr.

Alexander Adams, Mr. Marvin Mendonca, and Mr. Theodore Michaels. Dr. Weiss was particularly helpful in June of 1996 when the shock of the situation was at its worst.

In closing, I would reiterate that it is imperative that both individual citizens and organizations such as MIT and NRC recognize that an indictment is not proof of wrong-doing, that accused individuals do have a right to due process, and that our actions as individuals or as members of a corporate entity can greatly affect an individual's capability to exercise that right.

Thank you again.

Sincerely, (k &

John A. Bernard, Ph.

Director JAB /koe cc: USNRC - Document Control Desk (Docket No. 50-20, License No. R-37)

USNRC- Senior Project Manager NRR/ONDD USNRC - Region I - Project Scientist Effluents Radiation Protection Section (ERPS)

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