Informant (74 page)

Since July, Lassar and Griffin had been set on charging Whitacre with price-fixing. The evidence from the Japanese and Koreans proved that the conspiracy started many months
before
Whitacre began cooperating, and showed Whitacre was central to the scheme during that time. Since he had blown his immunity, the prosecutors argued, the jury would be angered if Whitacre wasn’t charged.

Shepard and Herndon were unconvinced. They couldn’t accept the idea of indicting the man who brought them the case.

“This is wrong,’’ Shepard said in a conference call. “We wouldn’t have anything if it wasn’t for Whitacre.’’

Lassar explained his reasoning, adding that even if Whitacre were convicted, his sentence would likely run concurrent with his prison term in the fraud case.

“Then what difference does it make, Scott?’’ Herndon asked. “It seems unfair.’’

“He’s not going to be able to handle it,’’ Shepard said. “He’s too fragile. If we indict him, there’s no telling what he’ll do.’’

In the end, the agents lost the argument. On December 15, 1996, a federal grand jury in Chicago handed up indictments against Mick Andreas, Terry Wilson, and Mark Whitacre, as well as Kazutoshi Yamada of Ajinomoto, charging them each with one count of violating the Sherman Act.

After flying from North Carolina, Whitacre arrived for a visit to Dr. Miller, seeming agitated and out of control. He had come with his new lawyers, and, with Whitacre’s permission, Miller told Walker and Kurth about their client’s bipolar illness. They had known nothing about it and asked for a book on the subject.

For a time, Miller sat with his patient alone. He had no doubt that Whitacre’s lithium levels were low. He was manic, babbling about some lawsuit he was planning that he thought would solve all of his problems.

“When I’m finished with this court case,’’ Whitacre told Miller, “I’m going to become the new CEO at ADM.’’

Brian Shepard walked into the mail room in the Decatur Resident Agency on the morning of January 9 to check the office answering machine. The digital display showed that there was a message waiting, and Shepard pushed the button.

“This is Ron Henkoff from
Fortune
magazine. I have something important to talk with you about, if you could return my call.’’

Shepard knew of Henkoff; he was the reporter who had written the Whitacre cover story in
Fortune
. At 11:20, Shepard returned the call. Henkoff got right to the point.

“I was calling to get your comments regarding some allegations by Mark Whitacre,’’ Henkoff said.

“I’m sorry,’’ Shepard replied. “I can’t comment.’’

“Well, I’m giving you the opportunity to comment because of the nature of the information.’’

Henkoff said that he had heard a tape of what purported to be a conversation between Shepard and Whitacre. In the tape, Henkoff said, someone who sounded like Shepard could be heard playing a recording of Mick Andreas, and then instructing Whitacre to destroy it.

The bad news kept coming. Henkoff said that Whitacre was planning to sue Shepard. The suit would accuse the agent of hitting him with a briefcase and forbidding him from contacting a lawyer or a doctor during the investigation.

Shepard felt his insides tearing out.

“I can’t comment, I’m sorry,’’ he replied.

Hanging up, Shepard called Mutchnik. “We need to talk,’’ he said.

Mutchnik patched in Herndon in Springfield.

“Okay, Brian, what’s up?’’ Mutchnik asked.

“I was contacted by a reporter from
Fortune
magazine, the one who did that first article,’’ Shepard said. “Mark’s saying he’s going to file a lawsuit against me. He’s saying I told him to destroy tapes.’’

“Ahh, jeez,’’ Herndon moaned. “What a jerk.’’

Shepard was beside himself. How could Whitacre’s new lawyer file this suit based on his word? There couldn’t be a tape—none of this had ever happened.

“What do we do?’’ Shepard asked, distraught. “Can we just go to court and get him to take it back?’’

“Brian, it doesn’t work that way,’’ Mutchnik replied. “I don’t know what court it’s going to be filed in, but you can’t just make it go away. Once it’s filed, you have to go through a process. It’ll take time.’’

Shepard seethed. “This isn’t right!’’ he shouted.

“Brian, don’t worry,’’ Herndon said. “It’s crap. It’s just Whitacre. Nobody will believe it.’’

Shepard wasn’t persuaded. “I told you!’’ he said bitterly. “I told you something like this would happen.’’

He breathed in heavily. “I knew we never should have indicted him for price-fixing,’’ he said. “I knew it.’’

Two days later,
Fortune
magazine sent out a press release with a copy of its latest article, under the headline Betrayal. It was based on another Whitacre interview, but this time with a far different spin.

“The mole has turned,’’ it read, saying Whitacre was blowing his whistle again. “Now, Whitacre is fingering the FBI itself, accusing one of its agents of ordering him to destroy evidence, denying him access to lawyers and doctors, and driving him to the brink of suicide. And once again, he says the charges are backed up by tapes.’’

The article quoted Whitacre saying that Shepard had told him to get rid of tapes that were favorable to ADM. Out of concern, Whitacre said, he had begun taping the agent, several times recording him as he gave instructions to destroy evidence.

“I was realizing the FBI was not much different than ADM,’’ Whitacre said in the article. “They had their own conspiracies. And I was stuck in the middle.’’

The article did not quote any tapes, and said that the recordings were no longer in Whitacre’s possession. But, it added, sources were saying the tapes still existed.

The magazine cautioned that there were reasons to be skeptical of Whitacre’s new claims—particularly since they contradicted his earlier praise for Shepard. But the article said that Whitacre had been in secret anguish for months about agent wrongdoing. It referenced a July 1995 letter to Jim Epstein, in which Whitacre laid out his concerns. In the article, Whitacre said that Epstein had persuaded him not to take on the government as an enemy. But now, he told the magazine, he could no longer bear holding back.

That same day, a faxed copy of the article arrived at my home. I had been covering the bizarre ADM story for the
New York Times
since the fall of 1995, and was familiar with its frequent twists. This new article, I knew, accurately portrayed Whitacre’s latest allegations. For weeks, Whitacre had been telling me tales of FBI corruption; to support his claim, he had provided me with two documents—the Epstein letter later cited in the
Fortune
article and a letter apparently signed by his psychiatrist. Both, Whitacre said, proved that he had been discussing FBI wrongdoing since 1995.

Whitacre had also played a recording for me, which he said showed that Shepard had ordered him to destroy evidence. While I could recognize the voices on the tape as belonging to Whitacre and Shepard, their words were largely incomprehensible. Whitacre had provided a transcript, but would not give me a copy of the tape.

After reading the
Fortune
article that Sunday, I telephoned Whitacre.

“Mark, I need to come visit you right away.’’

Whitacre sounded leery. “Why?’’ he asked.

“Why do you think? The
Fortune
article!’’

After a pause, Whitacre consented to a meeting in North Carolina. He understood how reporters felt when they were beaten on a big story. I asked him to bring Ginger, who had been mentioned in the
Fortune
article as well. He agreed.

•   •   •

The next evening in Chapel Hill, I met Mark and Ginger in Biomar’s lobby and was escorted to a conference room. I took a seat at the head of the table, while the Whitacres sat across from each other. Mark looked at me expectantly.

He didn’t know that I had come with a script.

“Mark,’’ I said, “before I ask anything, I want to talk to you for a minute.’’

Whitacre nodded. “All right.’’

“For the last four years, everyone who met with you has wanted something,’’ I said. “The FBI wanted your help on an investigation. Prosecutors wanted your help to get a conviction. Reporters wanted your help to get a story.’’

Whitacre stared back blankly. He had no idea where this was going.

“I’m not here tonight because I want anything from you,’’ I said. “I’m here because I’m worried about you.’’

Whitacre blinked.

“What do you mean?’’ he asked.

Reaching into my briefcase, I brought out a manila folder filled with documents.

“These are the records you gave me,’’ I said. “I’ve looked them over very carefully.’’

“Okay.’’

I set the documents on the table.

“And they’re not real. They’re forgeries.’’

The room was silent.

For weeks, I had struggled with concerns about the bogus documents. Whitacre’s allegations against Shepard had been built on fraud. The barely audible tape he had played for me was also fake; while it was clearly Shepard’s voice, the background static on the recording repeatedly changed pitch depending on who was speaking—a strong sign that it had been spliced together from different recordings.

At the time, it had hardly seemed newsworthy that someone had lied to a reporter. But then, rumors circulated that
Fortune
would be printing the allegations against Shepard. My editors ruled, and I agreed, that we could not tell
Fortune
about the forgeries, since we didn’t know whether the magazine had obtained other material to support the story—or was even, in fact, planning an article.

Aware by that time that Whitacre had been diagnosed with a bipolar condition, I spoke with several psychiatrists. Laying out the scenario, I asked what would happen if the
New York Times
revealed the forgeries after a
Fortune
article appeared. Most agreed that such a disclosure ran a significant risk of prompting another suicide attempt. It was an impossible situation, a choice between watching the destruction of an agent’s career or potentially prompting the death of a witness. Troubled by those options, I had consulted with another expert, who had devised the third alternative that was being pursued on this night: confrontation.

As planned, I brought out the letter purportedly written by Dr. Miller in 1995. In it, the psychiatrist appeared to discuss Whitacre’s allegations against Shepard. It was Whitacre’s proof that his claim was not something he had thought up once he faced price-fixing charges.

I showed Whitacre a second Miller letter I had obtained, pointing out dramatic differences between them. The typeface changed. The format was different. The 1995 letter was addressed to “Dr. Mark Whitacre’’ and opened with “Dear Mark”; the second, later letter was addressed to “Mark Whitacre’’ and began, “Dear Mr. Whitacre.’’

Mark brushed away these concerns, saying that a new secretary could account for the change. I pointed out other problems with the 1995 letter; as planned, each discrepancy was more difficult to explain than the last. I glanced at Ginger; her face showed doubt. It was time to pull out the stops.

“Another problem is the letterhead,’’ I said. “The office has an area code of 847. But the letter was written on November 14, 1995. That area code wasn’t in use yet.’’

Whitacre didn’t hesitate.

“Well, everybody knew about that area code coming,’’ he said. “Lots of people ordered it early when they bought new stationery. That’s probably what Dr. Miller did.”

“I thought about that,’’ I said, pulling out another document. “So I asked the phone company, Ameritech.’’

I slid the document across the table to him.

“This is the press release they issued in 1995, when they first announced the 847 area code. It’s dated November twentieth, six days after this letter was written.’’

Ginger looked shocked.

“So, Mark,’’ I said, “how did Dr. Miller know the new area code before it was announced?’’

Whitacre stared at the press release, saying nothing. Finally, he looked up.

“Well, I don’t understand why you’re having all these problems,’’ he said sharply. “Ron Henkoff called Dr. Miller, and he told him that this letter is real.’’

Whitacre was lying. This was the turning point I had been told to expect.

“Well, I called Dr. Miller, too. And after I persuaded him there’s no doctor-patient privilege for fake documents, he told me that he’s never seen this letter before.’’

Whitacre didn’t move.

“He also said that he’s very worried about you and wants to speak with you right away,’’ I said.

I slid a piece of paper with a phone number toward Whitacre. “He’s at home right now, waiting for your call.’’

My conversations with Miller had taken place days before. We skated on the edge of the doctor-patient relationship; without ever mentioning Whitacre’s name, I explained my dilemma. The charade continued with Miller instructing me generally on how to handle this type of situation with a severe manic-depressive—and then arranging for the call to his home. Everything—from the words I had chosen to the request that Ginger be present as a witness—had been planned with Miller’s input.

In the next few minutes, Whitacre tearfully confessed that the Miller letter was a forgery. I told him that Jim Epstein was at home and had agreed to comment on the authenticity of the letter cited by
Fortune
, if Whitacre would give permission. Shaken, Whitacre admitted that the Epstein letter was also fake. Ginger covered her face with her hands, telling her husband he was damaging himself with his lies.

We remained in the conference room for another hour. Eventually, the Whitacres went alone to another room, where they phoned Dr. Miller. Thirty minutes passed. When they returned, Mark looked chagrined.

“Looks like I’m going back to the hospital,’’ he said.

Our meeting continued; we eventually moved to the Whitacres’ house so that Ginger could pack for the hospital. There, Mark assured me that his story of FBI corruption was true, even if the documents were fakes. I told the Whitacres that I would be writing an article about his confession, and that it would be appearing as soon as possible. Past one in the morning, there was nothing left to say. I left their home. It was the last time I would speak with Mark Whitacre for several years.