The forensic scientist as an automaton

Hogwash. Simply put, everyone is biased about nearly everything. In the common vernacular the word “bias” has taken on a very negative connotation. In science, bias also has a negative connotation meaning the degree of difference from the true value. However, in reality bias is not a bad thing necessarily. It is a very important function of our evolution as a species. Bias is what keeps us from getting into cars with strangers. It is part of what keeps us safe and sound.

In the courtroom and the laboratory, the people who scare me the most are those who ascribe to this claim that they are totally free of bias. What is worse perhaps are the folks who work in private laboratories who claim that because they work in a for-profit laboratory setting that they are immune from all forms of bias.

If you are biased, I am totally fine with that. I don’t see that as a flaw. Embrace it. Declare it. However, you have to institute remediation measures designed to mitigate it. You are a flawed person and a flawed scientist/technician/expert if you believe that you have no bias.

As no one is free from bias, forensic laboratories need to start teaching everyone who works there that they are biased and stop the foolish claim. If we are interested in promoting error free work that is the highest quality, then we need to acknowledge it and take steps to mitigate it.

Please visit the www.TheTruthAboutForensicScience.com FaceBook fan page.

The week 86 “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week” honors goes to: George Schiro

According to our Geek, the following is offered:

George Schiro, MS, F-ABC is a consulting Forensic Scientist operating a consulting company called “Forensic Science Resources” located in Cade, LA. He received a Master of Science in Industrial Chemistry-Forensic Science which included five hours of credit in Forensic DNA Analysis of Biological Materials and accompanying lab course, three hours of credit in Quality Assurance and Bioinformatics, three hours of credit in Biochemistry, two hours of credit in Forensic Analysis of DNA Data, and three hours of credit in Experimental Statistics University of Central Florida, Orlando, FL. He received his Bachelor of Science in Microbiology including three hours of credit in Genetics from the Louisiana State University, Baton Rouge, LA. He holds a certificate of Professional Competency in Criminalistics, and is Fellow of the American Board of Criminalistics, Specialty Area: Molecular Biology.

George Schiro is a forensic scientist with over 25 years experience. He has been court qualified as an expert in crime scene investigation/reconstruction, DNA analysis, shoeprint identification, blood spatter interpretation, latent fingerprint development, serology, forensic science, trajectory reconstruction, fracture match analysis, and hair comparison. He has qualified over 160 times in 30 Louisiana parish courts, two Louisiana city courts, federal court, and county courts in Arkansas, California, Florida, Mississippi, Missouri, Nevada, New York, Texas and West Virginia. He has also consulted on cases in 24 states, for the United States Army and Air Force, and the United Kingdom. Throughout his career he has worked approximately 3200 cases.

His work has been featured on TV shows and in books. He regularly consults with TVs and movies.

The CV of our Geek of the Week can be found here.

Congratulations to our Forensic Science Geek of the Week winner!

OFFICIAL QUESTION:

2. Are there known issues with the method of testing, if so what, if not, why not?

Our Geek of the Week answered:

1. This is a diagram demonstrating the results of a “positive” paraffin test showing the presence of nitrates. Given the date and description, it is most likely from the right hand of Lee Harvey Oswald.

2. In 1933, Teodoro Gonzalez of the Criminal Identification Laboratory in the Mexico City introduced this test into the United States. The test was conducted by applying melted paraffin to an individual’s hand(s), allowing it to cool, then removing the solidified paraffin casts. The casts were then treated with diphenylamine and diphenylbenzidine. Nitrates would then show up as blue or violet dots in the cast. At one time, this was thought to be conclusive for the presence of nitrates and nitrites originating from gunpowder; however, it has since been shown that nitrates and nitrites are quite ubiquitous. The diphenylamine and diphenylbenzidine react with many common oxidizing reagents, soil, fertilizer, tobacco, pharmaceuticals, urine, cosmetics, and many other compounds. The paraffin test is non-specific and is of no use in detecting gun shot residues. To the best of my knowledge, it is no longer used by crime labs.

[BLOGGER’S NOTE: There are still some local crime laboratories that use this form of testing. Otherwise, we cannot possibly add to this entry. It was perfect! Well done. Check out next week’s contest soon.]

The Hall of Fame for the www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week:

Week 1: Chuck Ramsay, Esquire

Week 2: Rick McIndoe, PhD

Week 3: Christine Funk, Esquire

Week 4: Stephen Daniels

Week 5: Stephen Daniels

Week 6: Richard Middlebrook, Esquire

Week 7: Christine Funk, Esquire

Week 8: Ron Moore, B.S., J.D.

Week 9: Ron Moore, B.S., J.D.

Week 10: Kelly Case, Esquire and Michael Dye, Esquire

Week 11: Brian Manchester, Esquire

Week 12: Ron Moore, B.S., J.D.

Week 13: Ron Moore, B.S., J.D.

Week 14: Josh D, Lee, Esquire

Week 15: Joshua Dale, Esquire and Steven W. Hernandez, Esquire

Week 16: Christine Funk, Esquire

Week 17: Joshua Dale, Esquire

Week 18: Glen Neeley, Esquire

Week 19: Amanda Bynum, Esquire

Week 20: Josh D. Lee, Esquire

Week 21: Glen Neeley, Esquire

Week 22:  Stephen Daniels

Week 23:  Ron Moore, B.S., J.D.

Week 24: Bobby Spinks

Week 25:  Jon Woolsey, Esquire

Week 26: Mehul B. Anjaria

Week 27: Richard Middlebrook, Esquire

Week 28:Ron Moore, Esquire

Week 29: Ron Moore, Esquire

Week 30: C. Jeffrey Sifers, Esquire

Week 31: Ron Moore, Esquire

Week 32: Mehul B. Anjaria

Week 33: Andy Johnston

Week 34: Ralph R. Ristenbatt, III

Week 35: Brian Manchester, Esquire

Week 36: Ron Moore, Esquire

Week 37: Jeffrey Benson

Week 38: Pam King, Esquire

Week 39: Josh D. Lee, Esquire

Week 40: Robert Lantz, Ph.D.

WEEK 41: UNCLAIMED, IT COULD BE YOU!

Week 42: Steven W. Hernandez, Esquire

Week 43:Ron Moore, Esquire

Week 44: Mehul B. Anjaria

Week 45: Mehul B. Anjaria

Week 46:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 48: Leslie M. Sammis, Esquire

Week 49: Ron Moore, Esquire

Week 50: Jeffery Benson

Week 51: Mehul B. Anjaria

Week 52: Ron Moore, Esquire

Week 53: Eric Ganci, Esquire

Week 54: Charles Sifers, Esquire and Tim Huey, Esquire

Week 55: Joshua Andor, Esquire

Week 56: Brian Manchester, Esquire

Week 57: Ron Moore, Esquire

Week 58: Eric Ganci, Esquire

Week 59: Ron Moore, Esquire

Week 60: Brian Manchester, Esquire

Week 61: William Herringer, Esquire

Week 62: UNCLAIMED IT COULD BE YOU!

Week 63: Ginger Moss

Week 64: Richard L. Holcomb, Esquire

Week 65: John L. Buckley, Esquire

Week 66: Jeff Sifers, Esquire

Week 67: Josh D. Lee, Esquire

Week 68: Dr. Barbara Vonderhaar, PhD.

Week 69: Christine Funk, Esquire

Week 70: Mehul B. Anjaria

Week 71: Ron Moore, Esquire

Week 72: Mehul B. Anjaria

Week 73: Josh D. Lee, Esquire

Week 74: Kim Keheley Frye, Esquire

Week 75: Mehul B. Anjaria and Peter Carini, Esquire

Week 76: Kim Keheley Frye, Esquire

Week 77: Mehul B. Anjaria

Week 78: Steven W. Hernandez, Esquire

Week 79: UNCLAIMED. IT COULD BE YOU!

Week 8o: Justin Harris, Esquire

Week 81: UNCLAIMED. IT COULD BE YOU!

Week 82: Jay Tiftickjian, Esquire

Week 83: UNCLAIMED. IT COULD BE YOU!

Week 84: Steven W. Hernandez, Esquire

Week 85: Pat Arata, Esquire

Week 86: George Schiro

Week 87: Jay Tiftickjian, Esquire

Please visit the www.TheTruthAboutForensicScience.com FaceBook fan page.

The week 87 “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week” honors goes to: Jay Tiftickjian, Esquire

According to our Geek, the following is offered:

Denver attorney Jay Tiftickjian carries a Preeminent AV® rating in Martindale-Hubbell, the highest rating an attorney can achieve based on confidential ratings by members of the Colorado Judiciary and Colorado Bar. Martindale-Hubbell is the nation’s oldest and most respected legal directory, and a Preeminent AV® rating is an outstanding achievement, demonstrating an attorney’s superb legal ability and professional ethics. A Preeminent AV® rating demonstrates an attorney has reached the height of professional excellence.

In 2010, Mr. Tiftickjian was granted Life Membership status with the Colorado Criminal Defense Bar based on his contributions to criminal defense in Colorado. There are currently fewer than 20 Life Members of the CCDB, and attorney Tiftickjian is proud to be the youngest Life Member.

Mr. Tiftickjian is listed in the prestigious Bar Register of Preeminent Lawyers™ for criminal defense. The Bar Register of Preeminent Lawyers is a national directory for only those practicing attorneys at the top of their field, and is the definitive guide of the most distinguished lawyers and law firms in the United States.

In 2010 and 2011, Mr. Tiftickjian was nominated as a Super Lawyer: Rising Star for recognition of the up and coming defense attorneys in Colorado. This award recognizes the best criminal defense attorneys in Colorado under 40 as voted on by the Colorado Bar. No more than 2.5 percent of attorneys receive this award. Mr. Tiftickjian was also profiled in 2010 and 2011’s 5280 Magazine for Denver DUI/DWI defense and criminal defense.

Mr. Tiftickjian is a member of The National Association of Criminal Defense Lawyers (NACDL), The National College of DUI Defense (NCDD), The Colorado Bar Association (CBA) and The Colorado Criminal Defense Bar (CCDB). He has also received certification in the National Highway Traffic Safety Administration (NHSTA) DUI field sobriety test practitioner and instructor course.

Mr. Tiftickjian regularly attends sessions within the National College for DUI Defense, including its yearly DUI training conducted at Harvard Law School. This is the NCDD’s signature program to develop DUI trial skills, including innovative ways to attack breath tests, blood tests, field sobriety tests, and the prosecution’s police officers and expert witnesses.

Congratulations to our Forensic Science Geek of the Week winner!

OFFICIAL QUESTION:

Our Geek of the Week answered:

Hello to Ötzi the iceman, the world’s oldest and best-preserved mummy. Discovered in 1991 in a melting glacier in the Ötztal Alps by the German hiker Helmut Simon, Ötzi is thought to have died at age 45 following a violent hand-to-hand encounter with one or more assailants.

[BLOGGER’S NOTE: A very honorable mention goes to two others who answered after Attorney Tiftickjian.

Dustin Johnson, Esquire wrote:

1) Oetzi the Iceman

2) He was found in 1991 in the Alps. He’s a natural mummy. He lived (and died) over 5000 years ago.

3) Initially it was believed that he died from the cold. Closer review of his corpse have lead to the conclusion that he was involved in a struggle. The evidence for that is the arrowhead in his shoulder, corresponding tear in his coat. He also had bruises and cuts to the hands and wrists (one might call those defensive wounds) as well as to his chest. There was cerebral trauma that indicates a blow to the head. The current theory is that the head blow killed him but it’s not know if that came from him falling to the ground or if he was struck by someone.

Joseph Rome, Esquire wrote:

The dude is Otzi the iceman aka: Similaun Man or Man from Hauslabjoch)
– natural mummy from about 3300 BC. He was found in Otztal Alps in 1991 between Austria and Italy. He is Europes oldest natural human mummy. The cause of death was likely a blow to the head. He is on display in the South Tyrol Museum of Archaeology in Bolzano, Northern Italy.

Thank you all for participating. Check out next week’s contest soon.]

The Hall of Fame for the www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week:

Week 1: Chuck Ramsay, Esquire

Week 2: Rick McIndoe, PhD

Week 3: Christine Funk, Esquire

Week 4: Stephen Daniels

Week 5: Stephen Daniels

Week 6: Richard Middlebrook, Esquire

Week 7: Christine Funk, Esquire

Week 8: Ron Moore, B.S., J.D.

Week 9: Ron Moore, B.S., J.D.

Week 10: Kelly Case, Esquire and Michael Dye, Esquire

Week 11: Brian Manchester, Esquire

Week 12: Ron Moore, B.S., J.D.

Week 13: Ron Moore, B.S., J.D.

Week 14: Josh D, Lee, Esquire

Week 15: Joshua Dale, Esquire and Steven W. Hernandez, Esquire

Week 16: Christine Funk, Esquire

Week 17: Joshua Dale, Esquire

Week 18: Glen Neeley, Esquire

Week 19: Amanda Bynum, Esquire

Week 20: Josh D. Lee, Esquire

Week 21: Glen Neeley, Esquire

Week 22:  Stephen Daniels

Week 23:  Ron Moore, B.S., J.D.

Week 24: Bobby Spinks

Week 25:  Jon Woolsey, Esquire

Week 26: Mehul B. Anjaria

Week 27: Richard Middlebrook, Esquire

Week 28:Ron Moore, Esquire

Week 29: Ron Moore, Esquire

Week 30: C. Jeffrey Sifers, Esquire

Week 31: Ron Moore, Esquire

Week 32: Mehul B. Anjaria

Week 33: Andy Johnston

Week 34: Ralph R. Ristenbatt, III

Week 35: Brian Manchester, Esquire

Week 36: Ron Moore, Esquire

Week 37: Jeffrey Benson

Week 38: Pam King, Esquire

Week 39: Josh D. Lee, Esquire

Week 40: Robert Lantz, Ph.D.

WEEK 41: UNCLAIMED, IT COULD BE YOU!

Week 42: Steven W. Hernandez, Esquire

Week 43:Ron Moore, Esquire

Week 44: Mehul B. Anjaria

Week 45: Mehul B. Anjaria

Week 46:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 48: Leslie M. Sammis, Esquire

Week 49: Ron Moore, Esquire

Week 50: Jeffery Benson

Week 51: Mehul B. Anjaria

Week 52: Ron Moore, Esquire

Week 53: Eric Ganci, Esquire

Week 54: Charles Sifers, Esquire and Tim Huey, Esquire

Week 55: Joshua Andor, Esquire

Week 56: Brian Manchester, Esquire

Week 57: Ron Moore, Esquire

Week 58: Eric Ganci, Esquire

Week 59: Ron Moore, Esquire

Week 60: Brian Manchester, Esquire

Week 61: William Herringer, Esquire

Week 62: UNCLAIMED IT COULD BE YOU!

Week 63: Ginger Moss

Week 64: Richard L. Holcomb, Esquire

Week 65: John L. Buckley, Esquire

Week 66: Jeff Sifers, Esquire

Week 67: Josh D. Lee, Esquire

Week 68: Dr. Barbara Vonderhaar, PhD.

Week 69: Christine Funk, Esquire

Week 70: Mehul B. Anjaria

Week 71: Ron Moore, Esquire

Week 72: Mehul B. Anjaria

Week 73: Josh D. Lee, Esquire

Week 74: Kim Keheley Frye, Esquire

Week 75: Mehul B. Anjaria and Peter Carini, Esquire

Week 76: Kim Keheley Frye, Esquire

Week 77: Mehul B. Anjaria

Week 78: Steven W. Hernandez, Esquire

Week 79: UNCLAIMED. IT COULD BE YOU!

Week 8o: Justin Harris, Esquire

Week 81: UNCLAIMED. IT COULD BE YOU!

Week 82: Jay Tiftickjian, Esquire

Week 83: UNCLAIMED. IT COULD BE YOU!

Week 84: Steven W. Hernandez, Esquire

Week 85: Pat Arata, Esquire

Week 86: UNCLAIMED. IT COULD BE YOU.

Week 87: Jay Tiftickjian, Esquire

Forensic Science Geek of the Week

Thanks to the combined inspiration of Christine Funk, Esquire and Chuck Ramsay, Esquire, a new twist of this blog is being introduced. A weekly fun forensic science challenge/trivia question. The winner will be affectionately dubbed “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week.”

Rules:

1. The challenge will be posted Sunday morning 12 noon EST.
2. Answers to the challenge will be entered by responding to this blog post or thewww.TheTruthAboutForensicScience.com FaceBook fan page.
3. All comments that are answers to this blog will released after 9pm EST.
4. The first complete and correct answer will be awarded the envious title of “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week”
5. “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week” is entitled a one time post of his/her picture on this blog and the www.TheTruthAboutForensicScience.com FaceBook fan page. The coveted title will be his/her for that week. Additionally, a winner will be allowed one link to one webpage of his/her choice. Both the picture and the weblink is subject to the approval of Justin J McShane, Esquire and will only be screened for appropriate taste.
6. The winner will be announced Sunday night.
7. A winner may only repeat two times in a row, then will have to sit out a week to be eligible again. This person, who was the two time in a row winner, may answer the question, but will be disqualified from the honor so as to allow others to participate.
8. This is for learning and for fun. EVERYONE IS ENCOURAGED TO TRY TO ANSWER THE WEEKLY QUESTION. So give it a shot.

Here it is:

The www.TheTruthAboutForensicScience.com “Forensic Science Geek of the Week” challenge question. Remember the first full and complete answer wins the honor and also gets his/her photo displayed, bragging rights for the week and finally website promotion.

OFFICIAL QUESTION:

2. What is the theory associated with the cause and manner of death?

The Hall of Fame for the www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week:

Week 1: Chuck Ramsay, Esquire

Week 2: Rick McIndoe, PhD

Week 3: Christine Funk, Esquire

Week 4: Stephen Daniels

Week 5: Stephen Daniels

Week 6: Richard Middlebrook, Esquire

Week 7: Christine Funk, Esquire

Week 8: Ron Moore, B.S., J.D.

Week 9: Ron Moore, B.S., J.D.

Week 10: Kelly Case, Esquire and Michael Dye, Esquire

Week 11: Brian Manchester, Esquire

Week 12: Ron Moore, B.S., J.D.

Week 13: Ron Moore, B.S., J.D.

Week 14: Josh D, Lee, Esquire

Week 15: Joshua Dale, Esquire and Steven W. Hernandez, Esquire

Week 16: Christine Funk, Esquire

Week 17: Joshua Dale, Esquire

Week 18: Glen Neeley, Esquire

Week 19: Amanda Bynum, Esquire

Week 20: Josh D. Lee, Esquire

Week 21: Glen Neeley, Esquire

Week 22:  Stephen Daniels

Week 23:  Ron Moore, B.S., J.D.

Week 24: Bobby Spinks

Week 25:  Jon Woolsey, Esquire

Week 26: Mehul B. Anjaria

Week 27: Richard Middlebrook, Esquire

Week 28:Ron Moore, Esquire

Week 29: Ron Moore, Esquire

Week 30: C. Jeffrey Sifers, Esquire

Week 31: Ron Moore, Esquire

Week 32: Mehul B. Anjaria

Week 33: Andy Johnston

Week 34: Ralph R. Ristenbatt, III

Week 35: Brian Manchester, Esquire

Week 36: Ron Moore, Esquire

Week 37: Jeffrey Benson

Week 38: Pam King, Esquire

Week 39: Josh D. Lee, Esquire

Week 40: Robert Lantz, Ph.D.

WEEK 41: UNCLAIMED, IT COULD BE YOU!

Week 42: Steven W. Hernandez, Esquire

Week 43:Ron Moore, Esquire

Week 44: Mehul B. Anjaria

Week 45: Mehul B. Anjaria

Week 46:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 48: Leslie M. Sammis, Esquire

Week 49: Ron Moore, Esquire

Week 50: Jeffery Benson

Week 51: Mehul B. Anjaria

Week 52: Ron Moore, Esquire

Week 53: Eric Ganci, Esquire

Week 54: Charles Sifers, Esquire and Tim Huey, Esquire

Week 55: Joshua Andor, Esquire

Week 56: Brian Manchester, Esquire

Week 57: Ron Moore, Esquire

Week 58: Eric Ganci, Esquire

Week 59: Ron Moore, Esquire

Week 60: Brian Manchester, Esquire

Week 61: William Herringer, Esquire

Week 62: UNCLAIMED IT COULD BE YOU!

Week 63: Ginger Moss

Week 64: Richard L. Holcomb, Esquire

Week 65: John L. Buckley, Esquire

Week 66: Jeff Sifers, Esquire

Week 67: Josh D. Lee, Esquire

Week 68: Dr. Barbara Vonderhaar, PhD.

Week 69: Christine Funk, Esquire

Week 70: Mehul B. Anjaria

Week 71: Ron Moore, Esquire

Week 72: Mehul B. Anjaria

Week 73: Josh D. Lee, Esquire

Week 74: Kim Keheley Frye, Esquire

Week 75: Mehul B. Anjaria and Peter Carini, Esquire

Week 76: Kim Keheley Frye, Esquire

Week 77: Mehul B. Anjaria

Week 78: Steven W. Hernandez, Esquire

Week 79: UNCLAIMED. IT COULD BE YOU!

Week 8o: Justin Harris, Esquire

Week 81: UNCLAIMED. IT COULD BE YOU!

Week 82: Jay Tiftickjian, Esquire

Week 83: UNCLAIMED. IT COULD BE YOU!

Week 84: Steven W. Hernandez, Esquire

Week 85: Pat Arata, Esquire

Week 86: UNCLAIMED. IT COULD BE YOU!

This video is specifically dedicated to my colleagues, friends, and fellow members of the National College for DUI Defense, Inc.

By:  Frederic Whitehurst, J.D., Ph.D. [1]

If we accept that forensic crime laboratories are completely overwhelmed, understaffed, underequipped, and exhausting environments in which to function, we see reality.  Despite political rhetoric to the contrary, there has been little, if any, relief for those folks in crime labs who are toiling everyday under impossible workloads.  The US War on Drugs is brought to the doors of crime labs hundreds of times a day because, finally, powders and vegetable materials must be chemically and physically analyzed in order to charge offenders properly. If we believe the Chemical Abstracts Registry, which tells us that there are over 56,000,000 known chemical compounds, and if we realize that a large portion of those materials can occur as powders, then we see the daunting task faced by forensic chemists. White powders seized by law enforcement personnel are not proven to be controlled substances simply because they are white powders which give positive results for presumptive field tests. Those powders must be subjected to rigorously validated scientific analytical protocols in order to test the hypotheses of seizing officers that the materials are actually controlled substances. These tests take an enormous amount of time, time that crime labs do not have.  In order to address the issue of limited resources, the North Carolina State Bureau of Investigation (NC SBI) Crime Laboratory in the past has turned to case law, State v. Brenda Harding, and sampling protocols which allow one to determine the whole from an analysis of a part of that whole.  This article will discuss the scientific and legal implications of the sampling protocols which the SBI Laboratory has utilized to achieve determinations of seized multiunit samples of alleged controlled substances.

When law enforcement officers seize suspected controlled substances, often those seizures are in many small units of powders. An investigation may end in the seizure of hundreds of small bags or bindles. The chemical analyst cannot realistically analyze every small bag; therefore, for many years the NC SBI Lab utilized a sampling protocol referred to as the “square root of n plus 1” protocol. That protocol in its entirety is produced here:

Name of Procedure:

Random Sampling

Random Sampling of Multiple Packages or Units

Suggested Uses:

Random sampling is a procedure that is used when analyzing an item of evidence that consists of multiple packages or units.  This procedure allows a chemist to determine the composition of the evidence by analyzing some randomly selected packages or units and extrapolating the results.  Random sampling is an accepted procedure used in forensic science and has been upheld by the Appellate Courts of North Carolina (see literature references).

Random Sampling Procedures:

1. Visually examine all of the packages or units in the item of evidence, as well as the contents, for differences in size, weight, color, packaging, markings, signs of tampering, labeling or other characteristics.  If there are no appreciable differences, all of the packages or units should be considered together for the selection of random samples.  If there are appreciable differences, segregate the packages or units into individual groups, based upon such observed differences.

2. To determine the number of random samples to be selected from a total number of packages or units, where n equals total number of packages or units:

a. If n is less than or equal to 4, then random sampling is not done.

b. If n is greater than or equal to 5, then the number of random samples selected is equal to the square root of n plus 1, expressed as:

random samples = √n + 1

c. Weight determination — the total weight of all packages or units may be extrapolated from the weight of a random sample of the packages or units.

d. Weight count — the total number of all packages or units may be extrapolated from the weight of a random sample of the packages or units.

Classification of Evidence:

There are three main forms of controlled substances:

1. Plant material.

2. Controlled substances consisting of marked dosage units from legitimate pharmaceutical manufacturers.

3. Controlled substances derived from clandestine manufacturers.

a. Packages or units containing powder or solids.

b. Packages or units containing liquid.

c. Packages or units consisting of any substance which is used as a median to absorb or contain a controlled substance (plastic bags, glassine bindles, paper bindles, blotter paper, gelatin, sugar cubes, tea leaves, parsley, etc.)

Application of Procedure on Evidence:

1. Random sampling of plant material:

a. Visual examination of all packages or units and a complete analysis of one package or unit is required to confirm identification (minimum requirements).

2. Random sampling of marked dosage units from legitimate pharmaceutical manufacturers:

a. The visual examination and the markings on the dosage units provide identification of the controlled substance and a complete analysis of one dosage unit is required to confirm identification (minimum requirement).

3. Random sampling of controlled substances derived from clandestine manufacturers:

a. Random samples of packages or units must be selected and subjected to at least one screening test.  A complete analysis of a portion of the random samples is required to confirm identification (minimum requirement).

Safety Concerns:

Not applicable.

Literature References:

Colon, Rodriguez, and Diaz, Representative Sampling of Street Drug Exhibits, Journal of Forensic Sciences, Vol. 38, No. 3, May 1993, pp. 641–648.

Siegel, and Saferstein, Forensic Identification of Controlled Substances, Forensic Science Handbook, Vol. 2, Prentice Hall, 1988.

Tzidony and Ravreby, A Statistical Approach to Drug Sampling: A Case Study, Journal of Forensic Sciences, Vol. 37 November, 1992, pp. 1541–1549.

Frank, Hinkley, and Hoffman, Representative Sampling of Drug Seizures in Multiple Containers, Journal of Forensic Sciences, Vol. 36, March 1991, pp. 350–357.

Waggoner, R.W., t Distribution and Prediction Intervals, North Carolina State Bureau of Investigation, 1996.

State v. Myers, 301 S.E. 2d 401, 402 (N.C. App. 1983)

State v. Wilhelm, 296 S.E. 2d 664, 667 (N.C. App. 1982)

State v. Absher, 237 S.E. 2d 1325, 1328 (N.C. App. 1977)

State v. Clark, 197 S.E. 2d 81, 82 (N.C. App. 1973)

Literature References (continued):

State v. Riera, 172 S.E. 2d 535, 539 (N.C. App. 1970)

State v. Harding, 429 S.E. 2d 416 (N.C. App. 1993)

Complete with scientific literature references and case law, the protocol might at first seem to be an unaddressable issue when one is questioning its validity. Indeed State v. Harding seems at first glance to stand solidly behind the protocol. Recall that, Harding stands for the premise that one can determine the whole from an analysis of a part. However, Harding does not address which sampling protocol one must utilize. Furthermore, Harding does not support the use of the protocol listed above. In order to demonstrate this lack of support, let us look at an example of a bindle of heroin seized as evidence.

This bindle is a cellophane container which has been folded twice over and then sealed with a piece of tape. Powder within the bindle cannot be seen. One cannot, therefore, follow the protocol that is repeated in part below by visually examining the contents for differences in size, weight, or color…:

1. Visually examine all of the packages or units in the item of evidence, as well as the contents, for differences in size, weight, color, packaging, markings, signs of tampering, labeling or other characteristics. If there are no appreciable differences, all of the packages or units should be considered together for the selection of random samples. If there are appreciable differences, segregate the packages or units into individual groups, based upon such observed differences.

The opaque nature of the bindle stops an examiner from determining the color and the morphology (size/shape) of the powder crystals inside the individual packages. Furthermore, street samples of heroin found in these bindles are usually in the hundredths of a gram size.

To give us some idea of the size of those samples, notice that a package of sugar substitute that one finds on the table in a restaurant contains 1 gram of material.

Now imagine two to four hundredths of a gram is all the powder within the bindle. Imagine then closing your eyes while someone removes 10% of the powder in that package without your knowledge and being asked to look back at the material. One cannot really detect such an appreciable change in such a small amount of material. Therefore, the protocol set forth above does not accurately function for such samples. Additionally color is not a very probative characteristic of materials when numerous chemicals and combinations of chemicals in the world might very well have the same color.

Because the visual examination through a multilayered semi-opaque material is not possible, the examiner must open all the bindles in order to visually analyze the contents of those bindles. In the experience of the author, Dr. Whitehurst, at the point of opening these packages, very often the analyst will simply mix the contents of the packages, thus destroying information concerning those contents. The undisturbed contents of these packages is evidence which a defendant has a right to review and an act, such as mixing these contents, is a direct violation of N.C. GS 14–221.1 and 15–11.1 which prohibit the destruction of evidence without court authorization.  Mixing contents often accomplishes the aim of anyone wishing to establish guilt of trafficking. However, assuming that the prosecution’s duty is to uphold justice, this mixing circumvents both the role of the prosecution as well as defense counsel.

The random sampling protocol above also neglects to instruct an analyst regarding how to actually conduct a random sampling. Analysts should be instructed that in order to prove a lack of bias in choosing which samples to weigh and analyze one must “randomly” select samples.

One way to achieve this random sample is to assign a number to each sample. Then, utilizing a random number generator computer program, select those samples directed by that program. An inexpensive version of the random sampling consists of putting all the samples into a box or bag and picking out samples without looking at the samples chosen for analysis. Thus, despite being named “Random Sampling” procedure, the randomness of the sampling is not defined to ensure random selection.

Let’s review how this protocol directs us to look at the number of samples to be analyzed:

2. To determine the number of random samples to be selected from a total number of packages or units, where n equals total number of packages or units:

a. If n is less than or equal to 4, then random sampling is not done.

b. If n is greater than or equal to 5, then the number of random samples selected is equal to the square root of n plus 1, expressed as:

random samples = √n + 1

c. Weight determination — the total weight of all packages or units may be extrapolated from the weight of a random sample of the packages or units.

d. Weight count — the total number of all packages or units may be extrapolated from the weight of a random sample of the packages or units.

For the reader who successfully may have forgotten any lessons from math classes in high school the “square root” of a number is another number which when multiplied by itself will equal the number. For example the square root of one hundred is ten. The square root of sixteen is four. Therefore, if there are one hundred bindles in a seizure, one will then randomly select ten plus one and analyze eleven samples. In Dr. Whitehurst’s experience, examiners in the NC SBI lab will sometimes choose the square root of n plus one samples and then immediately mix them together. Once mixed, the court will never know which samples contained what material. Using our common sense we know that if we mix unknown powders together (in order to prove a trafficking weight), this mixture is a newly created mixture. Because NC statutes criminalize the manufacture of powder containing controlled substance x, the state’s analyst is possibly in violation of these manufacturing statutes by mixing together samples of this powder containing x.

Furthermore, suppose, for example, that the defendant has 100 bags of powder, produced by an average street pharmacist (consisting of unreliable contents), and some of those bindles contain a controlled substance while others consist of a non-controlled substance. There is no quality control in those street pharmacies. This problem is evidenced by statutes in NC which prohibit the sale of false controlled substances. We will not assume naively that the buyer, upon finding he has been cheated by purchasing a non-controlled substance, will go to the better business bureau. In fact the level of lawlessness in the illicit drug business is legendary.

Complicating this picture further, the US Drug Enforcement Scientific Working Group on Drugs has published its 2008 “Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) Recommendations” which can be found at www.swgdrug.org. Page 8 of that document describes sampling strategy and notes that the sampling procedures are divided into statistical and non-statistical procedures.  Among the statistical procedures the hypergeometric, Bayesian, and other probability-based approaches are listed and among the non-statistical procedures are the square root n, management directive, and judicial requirements standards. One can infer from this list that the NC SBI lab’s random sampling protocol is a non-statistical sampling procedure because page 9 explains that: “If an inference about the whole population is to be drawn from a sample, then the plan shall be statistically based and limits of the inference shall be documented.”

Page 11 goes on to say: “Depending upon the inference to be drawn from the analysis for a multiple unit population, the sampling plan may be statistical or non-statistical…Statistical approaches are applicable when inferences are made about the whole population. For example:  b) The total net weight of the population is to be extrapolated from the weight of a sample.”

Page 12 also indicates that: “Non-statistical approaches are appropriate if no inference is to be made about the whole population.”

Based on these passages, it seems as though the NC SBI lab has been utilizing a non-statistical sampling protocol from which one cannot determine the total weight of a sample of multiple units. Furthermore, these passages indicate that the total net weight for multiunit samples has been determined without valid foundation. If one reviews the protocol as provided under discovery by the NC SBI lab during past cases, one will see that this protocol has been in use since 1996. The use of this non-statistical protocol for nearly 15 years is troubling and leads us to A.J. Izenman’s “Statistical and Legal Aspects of the Forensic Study of Illicit Drugs in Statistical Science, 2001, Vol. 16, No. 1, 35–57.  On page 47 Izenman writes: “The square-root and other popular rules. A worldwide survey of sampling practices and choices of sample sizes for forensic drug analysis …found that the most popular rule for deciding how many containers or items, whether homogeneous or not, to sample for drug testing was not a statistically motivated one. Instead, the most popular rule was the square-root rule, … used by laboratories in Australia, Austria, Canada, England, New Zealand, Hong Kong, Northern Ireland and the United States and U.S.A. Army-Europe. One would assume, therefore, that the square-root rule would be an accepted part of sampling practice. Yet, in an informal, but extensive, survey of sampling practitioners, we found that most sampling experts had never encountered the square-root rule and no textbook on sampling theory or practice nor review of the field…even refers to it…

The square-root rule apparently originated in the 1920’s from a need to provide agricultural regulatory inspectors (specifically, those who knew how to extract a square root) with a convenient, memorizable rule for sample size determination.”

The historic context of the use of this protocol versus its present application is troubling. Since 1996 has the North Carolina SBI laboratory been deciding weight of total population in drug trafficking cases with a sampling protocol which the community of statisticians opines is not valid for such a use? Have law enforcement, prosecutors and juries decided a defendant possessed a certain amount of material when in fact the NC SBI Laboratory could not accurately make that determination with the protocol that it utilized?

Recently a colleague requested a review of the lab discovery material in a criminal matter. Under Item 1 on the SBI Laboratory report dated September 2010 one can read that a statistical sampling plan that demonstrates 95% confidence was utilized.  That report goes on to call that plan the “hypergeometric” sampling plan. Does this protocol change indicate  that the NC SBI lab is now recognizing that the previous non-statistical sampling plan was indeed fundamentally flawed? If there truly is a new sampling plan—a statistical sampling plan—what consequences will this changed protocol have not only for post conviction relief matters, but also for the many trafficking cases which were analyzed using the square root of n plus one sampling plan, a plan which the NC SBI lab may now admit to itself, if not to defendants in courts of law under Brady, proliferated mistakes and possibly caused miscarriages of justice?

__________

[1] Executive Director, Forensic Justice Project, Washington, D.C., B.S. Chemistry, 1974, East Carolina University, Ph.D. in Chemistry, 1980, Duke University, J.D., 1996, Georgetown University School of Law. (202)342‑6980.

Typically, it’s far from it.

We are derided by society for simply existing. When we take on socially controversial cases or causes or category of accused, we become the embodiment of that case or cause or that category and frequently become the focal point of all related and unrelated criticism surrounding the particulars. We frequently face impossible odds in a system that has seldom even has the veneer of justice that does lip-service to the principles that are enshrined in the Constitution and has been protected by the blood of patriots for over 200 years such as the presumption of innocence and the burden of proof. Judges, who are frequently anything other than neutral and detached, see their job as political and to become the masters of expedience where pressure is put on the innocent or incorrectly charged to plead, plead, plead. The jury pool is frequently tainted by prosecution-biased media. Jurors are apathetic, unengaged and anything but the final protection for their fellow man against the unfettered power of the leviathan.

One of the very best summaries of the difference between the vision of the Founding Fathers and what we live  in today is the last big speech of William Kunstler. I believe this words to be so very true:

Perhaps the best way to describe this breakdown of ethical concepts in this country is a history of the attempts to establish some form of ethos in this country.

As you know, the American Revolution was not a revolution engineered by poor people or by people who sold rats for a penny a pound down on the Long Wharf in Boston. It was engineered by the wealthy who wanted to transfer the power of wealth from London to New York, Philadelphia, and Boston. The people who fought it were those people who sold rats on the Long Wharf–the tinsmiths, the blacksmiths, and so on. But those who gained the most from it were the wealthy, the slave owners.

They met in Philadelphia in 1787. They met at what’s called Independence Hall, designed by a very famous lawyer, Andrew Hamilton, who defended John Peter Zenger in that famous freedom of speech trial in 1735 in New York. They blacked out the windows with paint so that no one would know they were going to violate their orders from those who sent them there by writing a new constitution and not reforming the Articles of Confederation, which was why they had been sent to Philadelphia. They were so afraid that people would find out what they were doing that they had Benjamin Franklin followed home every night and then followed from his lodgings to Independence Hall, because old Ben liked to tip a glass or two at the local tavern and they were afraid that he would give away the story before it was ready to be given away. They worked all summer and they evolved this document.

The document is fine. It sets up a tripartite form of government, and so on, but it says nothing about human rights whatsoever. And while they were talking about the supremacy clause in that document, somebody stood up and said, “How about a bill of rights?” This man was George Mason of Virginia. They voted on it. They voted twelve to one against a bill of rights. The only one that didn’t vote against it was, strangely enough, North Carolina. I guess those delegates from North Carolina would be very surprised to see that the man who sits in the United States Senate from that state today is Jesse Helms. They voted again. Again, twelve to one against a bill of rights.

And so, Mason left the convention, joined by John Randolph of Virginia and Elbridge Gerry of Massachusetts. The Constitution went out for ratification and they were so afraid that it would not be ratified that they made a two-thirds vote the ratification number, rather than unanimous. Five states immediately ratified–Georgia and Connecticut among them. But the big states of Virginia, New York, and Massachusetts did not ratify immediately. In fact, as you know, the Federalist Papers were created by Hamilton and Jay and Madison to try to sell the Constitution to the New York ratifying convention. Finally, Massachusetts–meeting in the Long Wharf in Boston and led by Elbridge Gerry–had an idea: Massachusetts will ratify if you agree to have a bill of rights in the first congress. There was agreement on that score and the three big states voted narrowly–three votes in New York and ten in Virginia–and the Constitution became law.

There was an election, George Washington and John Adams were elected president and vice president, and a congress was elected. It met in Federal Hall (still standing in New York) in 1791 and there was a vote on a bill of rights. After thrashing it out for months, they finally got a bill of rights.

The Senate voted that it should not be binding on the states; the House voted that it should be binding on the states. The Senate won. It took six hundred thousand lives between 1861 and 1865 to begin to make the Bill of Rights binding on the states. It went out for ratification. Virginia ratified on December 15 of that year, and that became the anniversary year of the Bill of Rights.

It had twelve amendments. The first two were meaningless for present purposes; they were never voted in. They had to do with salaries for representatives and senators. You can see what was on their mind with reference to what came first. The third, Freedom of Speech became the First, and so on.

And this great ideal of the Revolution, theoretically at least, became the Bill of Rights. We were the first nation on Earth to have crystallized human rights in a document that was binding at least on the Federal government.

And, yet, over the years it has been demolished amendment by amendment by amendment. One after the other, you’ve had these terrible onslaughts, until today, the Contract With America–as you know the lunatics are running the asylum these days–the Contract With America takes out of the Bill of Rights the Fourth Amendment entirely. It consecrates all searches and seizures, whether there is or isn’t a warrant, with the phrase, “if the constable believes that he or she was acting constitutionally.” That obviates the application of the Fourth Amendment.

The Fifth Amendment with its due process of law: this execution in Alabama yesterday of an insane man who did not even know he was being executed will show you how far the inroads go into the Fifth Amendment. You also know that they are executing fifteen– and sixteen-year-olds and they are going to work on fourteen-year-olds very shortly. We have become the charnel house of the Western world with reference to executions; the next closest to us is the Republic of South Africa. We are the only nation in the western world to have capital punishment today. All of western Europe has abolished it.

On the Sixth Amendment: we have taken lawyers away from their clients. Just witness John Gotti losing his lawyer, Bruce Cutler, on the eve of trial. We’ve utilized all sorts of devices to neutralize lawyers across the country, such as contempt citations and Rule 11 of the Federal Rules of Civil Procedure, which gives them the right to penalize lawyers, fine them, if some judge says the civil rights action you brought should not have been brought. I stand before you, the recipient of a $125,000 fine; the head of the NAACP legal defense fund, $40,000; the Christic Institute, a Roman Catholic civil rights legal and educational foundation–one million dollars and out of business today.

I could go through all the amendments, one by one and you would see how the First has been whittled down. Doctors, for example, not permitted to tell patients who are before them of the option of abortion.

The Second Amendment is very lively, of course. The only ones who subscribe to it are members of the National Rifle Association. So, it is of small importance to us, except they only read the gun part of it–“all citizens shall be entitled to bear arms,” and they don’t read at all the part saying those citizens should be in “a well-regulated militia.” But that’s not one of the Bill of Rights that gives any meaning today to us.

The Third doesn’t either. That’s about quartering troops in private homes. I don’t think any of you have troops quartered in private homes, unless it be your sons and daughters occasionally home from the post.

The Fourth Amendment was so vital to the colonists, because, you will remember, the King of England issued what were called writs of assistance–open-ended search warrants. They lasted as long as the king lived, and all the constable had to do was fill in the name. There was a famous case in Boston in the 1760′s where James Otis, a fiery lawyer, defended sixty-eight ministers to try to end writs of assistance. John Adams was a young lawyer in that courtroom, and when he heard Otis address the court, he said, “Then and there was the child independence born in that courtroom.” In any event, it was so important to them they enacted the Fourth Amendment: no unreasonable searches and seizures. But now, it has been dribbled away, bit by bit.

The Fifth Amendment, I’ve already mentioned–due process.

The Sixth Amendment, right to counsel. I’ve already hinted at it, and this is not a law school class, so we don’t have to go into all the details.
The Seventh doesn’t mean anything to you. It has to do with juries and civil trials.

The Eighth is the Amendment that talks about unreasonable penalties, bail, and so on. We’ve completely eliminated that. Our penalties are draconian, from the death penalty to sentences of life imprisonment for possession of cocaine, for example, and the famous “three strikes and you’re out” concept of the Contract With America. And bail has gone out the window. We have a new statute from 1984, one of Reagan’s little droppings, that says essentially that the judge can deny you bail in bailable cases if the judge comes to the conclusion you are a risk to flee or you are essentially a danger to the community. But it is not decided on ‘beyond a reasonable doubt’ or even on ‘probable cause.’ The statute says clear and convincing evidence and no one knows quite what that means.

We also have anonymous juries now, as you know–that would probably come under the Fifth Amendment or the Sixth Amendment–where the jurors have numbers instead of names. I tried a case in New York some years ago where juror 318 took the stand to be questioned, a white woman. My co-counsel leaned over to me and said, “Bill, Is 318 a Jewish name?” Because you cannot tell anything except from physical characteristics of the identity of the jurors, whether they are Italian, French, German extraction, Scandinavian, or what have you. Because you don’t have the names.

I also throw into the Bill of Rights the Thirteenth, Fourteenth, and Fifteenth, Amendments, which are the great Civil War Amendments. The attacks on affirmative action and so on are gradually destroying them as well.

We’ve come to the point, I guess, where we fear so much–crime in the streets, bombings, domestic terrorism, and the like–that we are virtually willing to countenance giving up of rights because we think it will safeguard us in our daily lives, particularly in the urban centers of this country. We are succumbing, in a way, and I don’t make the analogy too close, to what the German people did when the Third Reich began to plant its foot on human rights in Germany. It was better to have a strong man; it was better to curtail rights, to be safe from the Bolsheviks, to be safe from the Versailles Treaty, and so on. And they gave in to that fear, and fear is the most dangerous quotient in any community, democratic or otherwise. Once fear takes root, then people will say, “What does it matter really if he didn’t get his Fifth, or Fourth, or Sixth or Eighth Amendment rights? That doesn’t affect me. I’m not on trial for anything; I’m not in jail. What does it matter? That’s the question Pastor Niemoller faced, when he said, “They first came for the Jews and I did not raise my voice, and then they came for me.”

It’s a hard question. Politicians pander to that fear. They talk about getting tough on crime, more executions, more prisons, prisons that would put the Marquis de Sade to shame. They thrive and get re-elected on that score and the public duly applauds: “We’ve got a man, a woman in there who’s tough on crime, ergo, let’s follow whatever he or she says. Let’s put the elected stamp of approval on the trampling of the Bill of Rights.”

Last night I watched Judge Ito cry on television when he attended an anniversary meeting of the time when Japanese-American citizens of this country were snatched from their homes and put in concentration camps, their property confiscated for the sole reason that they were Nisei, American citizens of Japanese ancestry. And that was countenanced by a supine Supreme Court as being perfectly valid and constitutional. Slavery was countenanced by another supine supreme court as being perfectly constitutional. Segregation of the races after the civil war was countenanced as being perfectly constitutional. So we have these terrible lapses, because the ethics, the ethos, somehow vanishes in the exigencies of the moment, the perceived exigencies of the moment.

Every generation has its time to struggle. There are no green pastures.

Jefferson warned against this when he said if anyone really starts to trample on the Bill of Rights, we ought to throw over the traces once more. Not quite his language, but the gist of it was there. He also said “I tremble for my country when I think that God is just.” No sooner had the ink dried on the Bill of Rights when John Adams became president, succeeding George Washington. Then we had the Alien and Sedition laws, as evil a set of statutes against civil rights and human rights as ever been enacted in this country. President Lincoln suspended the Writ of Habeas Corpus. The know-nothings take control from time to time. All sorts of things are done that show how weak and fragile this Bill of Rights is.

Last night I watched Judge Ito cry on television when he attended an anniversary meeting of the time when Japanese-American citizens of this country were snatched from their homes and put in concentration camps, their property confiscated for the sole reason that they were Nisei, American citizens of Japanese ancestry. And that was countenanced by a supine Supreme Court as being perfectly valid and constitutional. Slavery was countenanced by another supine supreme court as being perfectly constitutional. Segregation of the races after the civil war was countenanced as being perfectly constitutional. So we have these terrible lapses, because the ethics, the ethos, somehow vanishes in the exigencies of the moment, the perceived exigencies of the moment.

Every generation has its time to struggle. There are no green pastures.

What makes it worse is within our own ranks, there has developed a sickening culture of the quasi-professional talking heads. As a group of colleagues we allow and perhaps even foster this culture of the “talking head” commentators on television and in the broader media who take to the airwaves and criticize the abilities of our fellow defenders of liberty. Too frequently, those talking heads and related folks presume incompetence of counsel when they are seldom fully informed and even dreadfully ignorant.

Why would anyone in this day and age ever want to be a criminal defense lawyer?

It takes courage. It takes strength. It takes personal integrity. All of these need to be the driving force in all criminal defense attorneys.

If, we want the definition of courage and personal integrity above all else, I would offer this scene to you:

Imagine this scene.

Judge Julius Hoffman had Bobby Seale bound shackled and gagged in his own trial where he was acting pro se (in defense of himself) as part of the 1968 Democratic National Convention trial (the Chicago 7 trial).

William M. Kunstler: “Your Honor, when are we going to stop this medieval torture that is going on in this courtroom? This man wants to defend himself. Your Honor, this is an unholy disgrace to the law that is going on in this courtroom.”

Judge Hoffman: “When you begin to keep your word around here that you gave to the Court perhaps things can be done.”

Kunstler: “I just feel so utterly ashamed, Your Honor, to be an American lawyer at this moment.”

Judge Hoffman: “You should be ashamed-”

Kunstler: “I know I should be! And I am!”

Later on…

Kuntsler: “Your Honor, I have the right to stand here and talk about the defense of a client.”

Judge Hoffman: “I asked you to sit down.”

Kunstler: “Your Honor, I think the Marshal is going to have to this time put me in my seat. I am not going to sit down unless I am forced to sit down.”

Judge Hoffman: “I have had enough of your insults this morning.”

Kunstler: “Your Honor, I am not being insulting.”

Judge Hoffman: “You sit down sir or we’ll…”

Kunstler: “What?”

Judge Hoffman: “arrange to have you put down.”

Abbie Hoffman (one of the 7 accused): “You’re going to gag the lawyers too?”

Thereafter, William Kunstler who had literally stood up for what was right and refused to sit down to the government and the abusive system was sentenced to 40+ months for contempt of court. The conviction was later overturned. This is a remarkable profile of courage and personal integrity.

Not every criminal defense attorney is called upon to be “radical,” but every criminal defense attorney is called upon every day to stand up against wrong. I used to openly wonder (and to a degree I still do) that if called upon would I have the courage to take on such an opponent as the full strength of our federal and state government as William Kunstler did on a frequent basis. I would like to think I would. But I wonder if I would recognize it when it comes? Sometimes the greatest opportunity to exercise courage might not be on a big issue, but in every day overall small scale issues that are instead a big issue to the particular person accused.

I would commend to you all to view and then own “William Kunstler: Disturbing the Universe.”

Forensic Science Geek of the Week

Thanks to the combined inspiration of Christine Funk, Esquire and Chuck Ramsay, Esquire, a new twist of this blog is being introduced. A weekly fun forensic science challenge/trivia question. The winner will be affectionately dubbed “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week.”

Rules:

1. The challenge will be posted Sunday morning 12 noon EST.
2. Answers to the challenge will be entered by responding to this blog post or thewww.TheTruthAboutForensicScience.com FaceBook fan page.
3. All comments that are answers to this blog will released after 9pm EST.
4. The first complete and correct answer will be awarded the envious title of “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week”
5. “www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week” is entitled a one time post of his/her picture on this blog and the www.TheTruthAboutForensicScience.com FaceBook fan page. The coveted title will be his/her for that week. Additionally, a winner will be allowed one link to one webpage of his/her choice. Both the picture and the weblink is subject to the approval of Justin J McShane, Esquire and will only be screened for appropriate taste.
6. The winner will be announced Sunday night.
7. A winner may only repeat two times in a row, then will have to sit out a week to be eligible again. This person, who was the two time in a row winner, may answer the question, but will be disqualified from the honor so as to allow others to participate.
8. This is for learning and for fun. EVERYONE IS ENCOURAGED TO TRY TO ANSWER THE WEEKLY QUESTION. So give it a shot.

Here it is:

The www.TheTruthAboutForensicScience.com “Forensic Science Geek of the Week” challenge question. Remember the first full and complete answer wins the honor and also gets his/her photo displayed, bragging rights for the week and finally website promotion.

OFFICIAL QUESTION:

2. Are there known issues with the method of testing, if so what, if not, why not?

The Hall of Fame for the www.TheTruthAboutForensicScience.com Forensic Science Geek of the Week:

Week 1: Chuck Ramsay, Esquire

Week 2: Rick McIndoe, PhD

Week 3: Christine Funk, Esquire

Week 4: Stephen Daniels

Week 5: Stephen Daniels

Week 6: Richard Middlebrook, Esquire

Week 7: Christine Funk, Esquire

Week 8: Ron Moore, B.S., J.D.

Week 9: Ron Moore, B.S., J.D.

Week 10: Kelly Case, Esquire and Michael Dye, Esquire

Week 11: Brian Manchester, Esquire

Week 12: Ron Moore, B.S., J.D.

Week 13: Ron Moore, B.S., J.D.

Week 14: Josh D, Lee, Esquire

Week 15: Joshua Dale, Esquire and Steven W. Hernandez, Esquire

Week 16: Christine Funk, Esquire

Week 17: Joshua Dale, Esquire

Week 18: Glen Neeley, Esquire

Week 19: Amanda Bynum, Esquire

Week 20: Josh D. Lee, Esquire

Week 21: Glen Neeley, Esquire

Week 22:  Stephen Daniels

Week 23:  Ron Moore, B.S., J.D.

Week 24: Bobby Spinks

Week 25:  Jon Woolsey, Esquire

Week 26: Mehul B. Anjaria

Week 27: Richard Middlebrook, Esquire

Week 28:Ron Moore, Esquire

Week 29: Ron Moore, Esquire

Week 30: C. Jeffrey Sifers, Esquire

Week 31: Ron Moore, Esquire

Week 32: Mehul B. Anjaria

Week 33: Andy Johnston

Week 34: Ralph R. Ristenbatt, III

Week 35: Brian Manchester, Esquire

Week 36: Ron Moore, Esquire

Week 37: Jeffrey Benson

Week 38: Pam King, Esquire

Week 39: Josh D. Lee, Esquire

Week 40: Robert Lantz, Ph.D.

WEEK 41: UNCLAIMED, IT COULD BE YOU!

Week 42: Steven W. Hernandez, Esquire

Week 43:Ron Moore, Esquire

Week 44: Mehul B. Anjaria

Week 45: Mehul B. Anjaria

Week 46:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 47:Ron Moore, Esquire

Week 48: Leslie M. Sammis, Esquire

Week 49: Ron Moore, Esquire

Week 50: Jeffery Benson

Week 51: Mehul B. Anjaria

Week 52: Ron Moore, Esquire

Week 53: Eric Ganci, Esquire

Week 54: Charles Sifers, Esquire and Tim Huey, Esquire

Week 55: Joshua Andor, Esquire

Week 56: Brian Manchester, Esquire

Week 57: Ron Moore, Esquire

Week 58: Eric Ganci, Esquire

Week 59: Ron Moore, Esquire

Week 60: Brian Manchester, Esquire

Week 61: William Herringer, Esquire

Week 62: UNCLAIMED IT COULD BE YOU!

Week 63: Ginger Moss

Week 64: Richard L. Holcomb, Esquire

Week 65: John L. Buckley, Esquire

Week 66: Jeff Sifers, Esquire

Week 67: Josh D. Lee, Esquire

Week 68: Dr. Barbara Vonderhaar, PhD.

Week 69: Christine Funk, Esquire

Week 70: Mehul B. Anjaria

Week 71: Ron Moore, Esquire

Week 72: Mehul B. Anjaria

Week 73: Josh D. Lee, Esquire

Week 74: Kim Keheley Frye, Esquire

Week 75: Mehul B. Anjaria and Peter Carini, Esquire

Week 76: Kim Keheley Frye, Esquire

Week 77: Mehul B. Anjaria

Week 78: Steven W. Hernandez, Esquire

Week 79: UNCLAIMED. IT COULD BE YOU!

Week 8o: Justin Harris, Esquire

Week 81: UNCLAIMED. IT COULD BE YOU!

Week 82: Jay Tiftickjian, Esquire

Week 83: UNCLAIMED. IT COULD BE YOU!

Week 84: Steven W. Hernandez, Esquire

Week 85: Pat Arata, Esquire

By:  Frederic Whitehurst, J.D., Ph.D. [1]

While reviewing case opinions in criminal matters involving forensic examinations one is often presented with various adjectives of comparison such as “matches,” “consistent with,” and “identical to.” Counsel seeing these adjectives in forensic reports may be elated if legal theories are supported or disturbed if not. However, one way or the other, there is a wealth of information behind these adjectives which may go unexplored and if brought up during trial can leave prosecutors defending new ground during litigation and defense counsel scoring important points in discrediting proffered expert testimony. One should be drawn to question whether these words are an indication that data has been over-inferred by the expert offering them. One is also drawn to ask, if following Giglio², the information behind these words should have been presented as possible exculpatory information to unsuspecting prosecutors before trial. Comparison adjectives left dangling alone to describe the results of comparisons may not properly educate the trier-of-fact to the true significance of the data. And more importantly, the true significance of the data may not be known by the forensic scientist. For example Jonakait³ tells us that “The conclusions of forensic science are often based on skimpy, nonexistent, or shoddy research. Forensic scientists do not give juries a thorough presentation of information about the scientific technique.”

The FBI expert and the prosecutor from the hit comedy My Cousin Vinny used the word “Identical” to attempt to prove source of tire marks to a particular set of tires to the exclusion of all other tires in the universe

This paper will address the adjective “matches” as an example pointing out the very wide door of opportunity it opens for future probing during examination. The adjectives, if not properly supported by empirical data, can offer counsel the opportunity to point out to the trier-of-fact what may be a flawed opinion, possibly even a “forensic scam” being perpetrated upon the court through the hiding of exculpatory information. This paper will also explore the Giglio obligation of the prosecution’s forensic scientists to reveal the empirical data or lack thereof and their total understanding of the data to full view.

The world of man-made products is composed of complex materials constructed with many components each with its own manufacturing signature. When the forensic expert testifies that two complex materials “match,” counsel is encouraged to ask of what the materials are composed, which of the components match, how the expert has determined this, what components were not and/or can not be detected with the analyst’s tools and the implications of not being able to determine if these components matched or not. As an initial example we will look at a very simple and very old man-made material, black powder, an explosive.

Black Powder

Though the origins of black powder are debated, it was the major explosive used in warfare, firearms and industries such as mining until the late 1800’s. The black grains of material are composed of potassium nitrate, sulfur and charcoal. Black powder has been produced essentially in the same manner for hundreds of years. At first glance it appears to be a simple material of three components. However a closer “hard look” reveals a fascinatingly complex material of many, many possible subcomponents and physical characteristics. The expert witness who opines that two black powders “match” then can be asked to explain what about the materials is it that matches … and what is the significance of that match. Let us explore the world of information behind the word “match” when it is applied to two black powder samples.

We may ask first who manufactures the components of black powder. This knowledge allows us to check proffered expert opinions against actual manufacturers’ understandings of their own products. We can easily determine the manufacturers of a material and ask a number of questions. How is potassium nitrate manufactured? How is sulfur manufactured? How is charcoal manufactured? What are the raw products that go into the manufacture of these materials and what chemical and physical signatures do they carry with them to the final black powder mixture. What are the various grades of these materials and what grades are utilized in the manufacture of black powder? What possible minor impurities are found in these components that might change the types of black powder in minor but important ways? Who manufactures black powder itself? How much of the material is manufactured? What are the physical characteristics of black powder? What grades of black powder are manufactured? The expert who is prepared under oath to render the bare opinion that black powder specimens “match” should surely have considered these questions at length and have ready answers, data and the scientific literature to support his opinion.

Potassium Nitrate

A quick trip to the chemistry library to look into the Encyclopedia of Chemical Technology⁴ tells us that “Potassium nitrate, which was essential in the manufacture of black gunpowder, was produced centuries ago by the Chinese.… The process involved leaching soil in which nitrogen from urine had combined with mineral potassium. By the time of the Napoleonic wars, potassium nitrate was a strategic chemical and was still obtained in the same manner, primarily from India.” One can certainly imagine that if potassium nitrate were still manufactured in this manner it would carry a lot of impurities out of the soil with it. However we are not to be treated to such a simple answer.

We find from the same reference⁵ that “Most of the potassium nitrate, KNO3, produced commercially in the United States is based on the reaction of potassium chloride and nitric acid.” So here we have two other materials the origins and purity of which we must consider. We are advised of the following composition of potassium chloride⁶:

One can see that with all of these materials in the potassium chloride used in the manufacture of potassium nitrate, their occurrence in the potassium nitrate derived in part from the potassium chloride is possible. Indeed reference to the certificate of analysis on a bottle of a Fisher Certified Reagent grade potassium nitrate from lot number 745536 found in the laboratory in which the author works notes the following impurities: Component Guaranteed Composition wt % Fe (iron) .0001% Heavy metals (as lead) .0001% SO4 (sulfate) .001% Na (sodium) .005% Insoluble matter .001% Cl (Chorine total) .002% PO4 (phosphate) .0001% Ca + Mg .002%

As small as the percentages are they are still measurable and have obviously been measured in the assay of this reagent grade material. Counsel should not have to accept the opinion that the materials are not present in sufficient quantity to measure and are therefore not important to establishing a match. That kind of statement should be backed up with empirical data, data that indicates that minor components do not change significantly between batches or grades of black powder. What does “significantly” mean? That is another question for the expert to answer.

Sulfur

We read in the Encyclopedia of Chemical Technology⁷ that “Sulfur has been known since antiquity.… One contemporary use was developed in 500 BC, when the Chinese used sulfur as an ingredient of gunpowder.” And further we read that⁸ “Sulfur occurs in a number of different allotropic modifications, that is, in various molecular aggregations which differ in solubility, specific gravity, crystalline form, etc. Like many other substances, sulfur also exhibits dynamic allotropy, ie. the various allotropes exist together in equilibrium in definite proportions, depending on the temperature and pressure.… The particular allotropes that may be present in a given sample of sulfur depend to a large extent upon its previous thermal history, the amount and type of foreign substance present, and the length of time that has passed for equilibrium to be attained.”

These are statements full of the wonderful potential for exploration. There is mention of impurities. What impurities exist in sulfur? An expert in a particular type of material might reasonably be expected to have considered this question in the past just as he might have been expected to consider the impurities in potassium nitrate. After all, if an expert is going to say that the chemical composition of two materials such as black powder match, then he can reasonably be expected to have some understanding of what those chemical compositions are. And then we can ask what allotropes are present in the sulfur that is in the black powder. Interestingly the encyclopedia⁹ notes the many grades of sulfur as follows: amorphous sulfur, bright sulfur, brimstone, broken rock sulfur, broken sulfur, colloidal sulfur, crude sulfur, dark sulfur, dusting sulfur, elemental sulfur, flour sulfur, flowable sulfur, flowers of sulfur, Frasch sulfur, insoluble sulfur, lac sulfur, liquid sulfur, molten sulfur, native sulfur, precipitated sulfur, prilled sulfur, recovered sulfur, refined sulfur, roll sulfur, rubbermaker’s sulfur, run-of-mine sulfur, screened commercial sulfur, slated sulfur, specialty sulfurs and wettable sulfur. Now who would imagine that sulfur could come in so many forms? Dare we ask if the different forms might have different impurity signatures? An expert who professes to know that two black powder samples “match” without describing those characteristics that match might be inclined to have asked and to have answered that question. Or possibly the “match” did not include consideration of trace impurities.

Charcoal

The most impressive complex component of black powder is the charcoal. It is this component that contains the greatest wealth of opportunity for examination, both legal and scientific. The Handbook of Charcoal Making¹⁰ defines charcoal as “The residue of solid non-agglomerating organic matter, of vegetable or animal origin, that results from carbonization by heat in the absence of air at a temperature above 300 degrees centigrade.”

The definitions also include those of charcoal’s components as follows¹¹:

1.)“Content of Volatiles: If charcoal is heated to 900 degrees under confined conditions, it will lose weight because hydrocarbons and nitrogen are driven out. This weight loss is extremely important to industrial charcoal consumers when defining the utilization properties.”

2.) “Ash content: The ash is composed of the natural minerals contained in almost any organic matter and contaminations. The quantity is related to the composition of the raw material mix, e.g. wood branches with a high proportion of bark will give high ash containing charcoal. Charcoal ashes are distinguished by their solubility in water and by chemical analysis.”

3.) “Sulphur and phosphorus content: The low sum of these substances normally found in charcoals makes them especially attractive for use in blast iron furnaces and for metallurgical purposes.”

4.) “Pyrolysis Oil: The oil varies very much with the type of raw material. It contains more than one hundred different substances, which once made it a valuable feedstock for the chemical industry.”

With these definitions we realize that charcoal could be considered the most complex component of black powder.

An important field of research in black powder charcoals has been conducted by military laboratories in attempts to better define the explosive power of this explosive.¹² Black powder is used to propel military projectiles. If the black powder is not well characterized then high explosive rounds may fall on friendly lines or may not hit intended targets. The work of Ronald Sasse et. al. for the U.S. Department of Defense is particularly instructive in characterizing black powder. In Sasse’s papers “Organic substitutes for charcoal in ‘black powder’ type pyrotechnic formulations¹³,” “Characterization of maple charcoal used to make black powder¹⁴″ and “Characterization of charcoal used to make black powder¹⁵,” we see a treasure of information that can be explored by counsel. Charcoal used in black powder originates from different vegetable sources. These sources invariably originate from different areas and therefore nutrient environments. Each batch of charcoal is consequently very likely different. Even the manufacturer who uses the same type of tree for his charcoal utilizes trees that originate from different sources. These sources imprint their own nutrient and growth signature on the charcoal product.

Expert testimony that is offered that black powder samples “match” should raise questions concerning the chemical and physical characterization of the charcoals found in the black powder. Remembering that charcoal particles will have different contents of organic and inorganic chemicals as well as different shapes and structures, counsel can ask for the data that totally defines these characteristics. If they have not been defined then a dangling “match” must be better defined.

Black Powder, The Product

Black powder utilized in the United States originates from a number of sources. The largest of those sources is Goex, Inc.¹⁶ The GOEX black powder plant in Moosic, Pennsylvania, has been producing black powder since 1912. Kosanke¹⁷ advises that there are also sources of Chinese, Russian, Brazilian and Scottish black powders in the United States at this time as well as black powder which originates from military surplus. A simple review of the GOEX sales brochure notes that black powder comes as superfine black sporting powder, military powder, fireworks powder, blasting powder and commercial powder. Each of those headings has subclasses. Under superfine black sporting powder one finds cannon, Fg, FFg, FFFg, FFFFg, and cartridge powders. Under military black powder one finds type Mil-P-223B powder further subdivided into class 1 through class 8 and propellant composition, type JAN-P-663A subdivided into type I fuze and type II fuze powders, and type JAN-P-362 powders. Under fireworks powder one finds 1Fa through 7Fa, meal D, Fine meal, and extra fine meal. Under Blaster Powder one finds 1FBB, through 4FBB powder. Under commercial fuse powder one finds powders with speeds of 85, 108, 111, 116, 124, 126, 132, 140 and 165 seconds/yard.

As the reader can see, these powders, though all composed of potassium nitrate, sulfur and charcoal may have different characteristics. For instance, no two black powder granules, which have the appearance of blackened coarse grains of sand, are exactly alike in size and shape. Sasse and Rose can therefore tells us that there is a size distribution of these powder particles in any one product type.¹⁸ According to information the author received from a representative of GOEX, because of this size distribution, particles of one size may be found in more than one type of black powder. For example, particles of a particular size which are found in FFg may also be found in FFFg powder. Therefore while noting that particles from two different sources match in size the expert must also honestly put forth the information that other sources of different types of black powder are not excluded as possible sources. It would also be helpful to let counsel and the trier-of-fact know just how many other sources of a particular type of black powder there were. This may be impossible as the black powder particles fracture in the can¹⁹. Another problem with black powder size comparison may very well be in comparing uninitiated black powder with black powder particles found in residue from exploded improvised explosives devices. If powder can fracture in the can, one can be certain that it will fracture when subjected to explosive forces.

Though quantities of black powder that exist in the United States are not known accurately one can get an estimate from looking at black powder usage as well as the published scientific literature on black powder. Jon Uithol, of the National Muzzle Loading Rifle Association²⁰ advises that there are three to seven million muzzle loading state hunting licenses issued per year in the U.S.. These firearms utilize black powder or a black powder substitute called Pyrodex. Black powder is sold in smallest units of pounds. This would indicate that millions of pounds of black powder presently exist in this country as purchased product. Rose notes about black powder that “the civilian consumption alone must be more than a thousand metric tons annually.“²¹

A Range of Choices

The Federal Judicial Center’s Reference Manual on Scientific Evidence²² asks the question “Have alternative explanations been ruled out?” explaining further that “Alternative explanations and confounding factors should be examined and ruled out to avoid reaching an erroneous conclusion. However, it is never possible to rule out every alternative explanation.” Another source²³ describes Judge Weinstein in Agent Orange²⁴, recognizing that unless research that seeks to establish causation for one agent also takes into account other factors that may explain the plaintiff’s injuries, the finding may improperly overestimate causation. Because the evidence presented failed to take into account factors other than Agent Orange dioxin that could have caused the veteran’s illnesses, it was not scientifically valid, and Judge Weinstein properly excluded the evidence as legally unreliable.” This is very much on point here. Complex materials and their components are manufactured in many forms with many uses, and with upper and lower limits of acceptance of physical and chemical characteristics. Those limits translate into products having different chemical and physical characteristics even though produced on the same production lines for identical purposes. When those limits are very tight, differences are difficult if not impossible to detect with modern analytical tools. The result of this is that alternative explanations can not always be ruled out no matter how thorough the analysis is.

In the case of black powder the manufacturers upper and lower limits must be carefully controlled so that the powder initiates only upon command and not spontaneously, resulting in unplanned damage and/or death. The range of differences in black powder do exist, however, and preclude absolute matches.²⁵ The analyst is compelled to determine the limits of ranges and if possible to determine if suspect materials fit within those ranges and therefore could have originated from the same sources. Ultimately, however, the scientist reaches the point at which available technology can not assist in the further characterization of materials. At that point the legal system must determine if the scientist should be compelled to report that failure as a scientist and the significance of that failure in light of what alternative explanations for the data can not be ruled out. Apparently Judge Weinstein would suggest that alternative explanations that can not be ruled out should be presented as evidence.

Giglio v. United States

One would assume that a prosecutor would want to know the weaknesses of opinions presented by forensic experts if for no other reason than to avoid problematic revelations during testimony on cross examination. But does the forensic scientist have a duty to present his total understanding of data or just that part that gives strength to the prosecutor’s theory of guilt?

One approach to the reporting of the limitations of scientific protocols is that established under Giglio. It is strange that a forensic scientist would even have to consider the law in dealing with the completeness of his reports. One would hope that there would be no taint of bias, that the scientific opinions would be rendered objectively. However as noted in the British case Regina v. Judith Theresa Ward²⁶, “the disclosure of scientific evidence was woefully deficient. Three senior RARDE scientists took the law into their own hands, and concealed from the prosecution, the defence and the court, matters which might have changed the course of the trial.” Forensic scientists do at times take the law into their own hands and become partisan. Therefore guidance in the reporting of the significance of forensic evidence might be necessary.

We are taught in “The Prosecutor’s Duty of Disclose: From Brady to Agurs and Beyond“²⁷ that Giglio and progeny establish that “Generally a prosecutor ‘should know’ of a piece of evidence if it is in his possession or in the possession of any agency involved in the prosecution.” Other agencies can include other prosecutors in the office²⁸, law enforcement officers²⁹, and any other investigative agencies involved in criminal prosecution³⁰. This would naturally include government forensic laboratories. And in footnote 130 of this article, quoting U.S v. McCord³¹, “The prosecution involves all agencies of the federal government involved in any way in the prosecution of criminal litigation.” Giglio and progeny establish that failure to present exculpatory information is not excused as a result of the prosecutor having no personal knowledge of such information while members of the agency assisting in the prosecution do have such knowledge. What does this say for forensic scientists who present their findings as “matches” without describing the underlying meaning of the adjective? Do these scientists have an obligation to present the underlying meaning of the data that establishes the match? If the matches are not absolute should the level of uncertainty be exposed to the prosecutor? If the level of uncertainty is unknown should that also be reported to the prosecutor? If forensic scientists are not willing to report the significance of their data objectively then how can the prosecutor decide if Brady material and a Giglio obligation exist as a result of scientific investigations?

What obligation does the prosecutor have to provide possibly exculpatory forensic information. Agurs³² teaches that:

“Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever excusable.”

But how does defense make specific requests about complex scientific information which may be exculpatory in nature, may prove or be favorable to establishing innocence? The “matching” of complex forensic samples is generally not a skill that is employed outside the government’s own laboratories. How can defense counsel even know to ask about the morphological structure of the charcoal in black powder samples or the volatile organic compounds, or the pyrolysis oils, or the impurity content of potassium nitrate or the size distribution characteristics of particular types of black powder? Generally neither prosecution nor defense counsel have appropriate backgrounds to delve into or understand this type of information.

Agurs³³ identified this situation in describing the prosecution’s failure to disclose allegedly favorable evidence that the defense had not specifically requested. This failure could be inexcusable under Giglio and yet the prosecutor, defense and court never pick up on the failure when forensic evidence is concealed. One can imagine testimony that established that two black powder samples “matched” and yet the “match” was only in qualitative content of potassium nitrate, sulfur and charcoal. A trier-of-fact could wrongly infer from this testimony that both black powder samples had unique characteristics that set them apart from all the other hundreds of thousands, possibly millions of pounds of black powder in existence in the United States. Without explaining the meaning and limitations of “match” and without the prosecutor or defense counsel being able to see through the problem, the trier of fact might not be able to place the proper weight on evidence and injustice might result.

What evidence would be considered exculpatory? It would not take a great leap of faith to believe that if black powder were found at a crime scene and at a defendant’s residence that the defendant would argue that there are thousands of tons of black powder available and in the hands of the American public and that the black powder found at the crime scene did not originate from the defendant’s black powder. The expert who opined simply that the two black powders “matched” could very well mislead the trier of fact into believing that the two samples of black powder originated from the same source. That expert would be concealing evidence that very well could be considered to be exculpatory. One can also imagine the trier-of-fact who has been led by the expert to believe that two black powder samples which “match” most likely originated from the same source. Under these circumstances, any information which revealed the limited weight of that evidence could be considered favorable to the defense. Such evidence, if unsuccessfully concealed, might even lead jurors to question the credibility of the proffered expert. Imagine the trier-of-fact who has been led to believe through the “dangling adjective of comparison” that two samples originated from the same source. Imagine now the effect on that same trier­of-fact when she learns that there are thousands if not millions of sources of the same material, that the analyst can not, in reality, determine if the two materials are chemically and physically identical, and that the analyst did not present that information in his report or in his testimony.

Solutions

Counsel should look behind the adjectives of comparison, demanding to know what they mean. Forensic scientists should report their full understanding of the meaning of the comparison adjectives, remembering that the oath is to “Tell the truth, the whole truth, and nothing but the truth.” A list of possibly useful exploratory questions is presented as a guide, using black powder as an example:

1.) What is black powder composed of? 2.) What analytical techniques were used to determine the composition of these pieces of evidence? 3.) What information about the components did each of these instruments present? 4.) Are each of the materials used in the manufacture of black powder pure? 5.) If not, then did the instruments measure the impurities? 6.) If the instruments did not measure the impurities, how can one be sure that the black powders “match.” 7.) What does “match” mean? 8.) If you can not measure impurities such as pyrolysis oils, phosphorous and sulfur, and minerals in black powder particles then how can you say that the particles match without revealing in what specific ways they do match? 9.) Are all black powder particles of the same size? 10.) If they are not of the same size, then what is the size distribution of the particles that you analyzed and how did you measure the distribution? 11.) Was the black powder used in an improvised explosives device that exploded? 12.) Wouldn’t such an explosion break apart black powder particles? 13.) If you say that it would not, please present your empirical data and results of your scientific analyses to show that an explosion would not fracture larger black powder particles into smaller particles. 14.) Did you conduct a scanning electron microscope comparison analysis of the morphology, size and shape, of the charcoal in the black powder particles that you had as evidence. 15.) Did you determine whether the black powder particles that you had were manufactured with charcoal from different types of trees? 16.) If you did not, why didn’t you before you simply said that the two powder samples matched? 17.) Do you know what types of trees are used in the manufacture of black powder particles? If you do, then would you name them? 18.) Did you look for these different types of wood charcoal? How do you recognize the different charcoals? 19.) If you believe that the black powder particles “match” and yet you have not measured all the characteristics of the particles, can you explain what is the basis for your saying that the particles match? 20.) Can you explain why even though you were not able to and/or did not measure some very important characteristics of the black powder particles, you still wrote a laboratory report that said the black powder particles matched and did not further explain the significance of the “match.”

Summary

Adjectives of comparison such as “match,” ” consistent with” and “identical to” can be misleading to triers-of-fact and can be used to prove almost anything. The expert witness who opines that two materials match opens the door very possibly to cross examination which could be easily used to discredit the witness. Cross examination can delve into the components of the matching materials, the instrumental data from analyses of the materials and into the basic scientific foundation for the opinion rendered.

We are left with a question as to whether Giglio obligations of the prosecutor require that the prosecutor’s experts reveal the basis for their use of comparison adjectives in their reports to the prosecutor. These revelations would seem to be necessary in order that the prosecutor be able to decide if information held by members of his team was favorable to the defense. Such information would normally be found in scientific reports from other disciplines and should not be left out of forensic reports.

_______________________

¹ Supervisory Special Agent, Federal Bureau of Investigation. Currently assigned to the FBI Laboratory in Washington, D.C.. B.S., Chemistry, 1974, East Carolina University, Ph.D., Chemistry, 1980, Duke University, J.D. 1996,Georgetown University School of Law.

The views expressed in this paper represent those of the author and are not necessarily representative of the views of the Federal Bureau of Investigation, the United States Department of Justice or the United States government.

² Giglio v. United States, 405 U.S. 150(1970).

³ Randolph N. Jonakait, Stories, Forensic Science, andImproved Verdicts, 13 CARDOZO L. REV. 343, 349 (1991).

⁴ W.B.Dancy, Potassium Compounds, 18 ENCYCLOPEDIA OF CHEMICAL TECHNOLOGY 920 (John Wiley & Sons, 1982).

⁵ Id. at 939.

⁶ Id. at 930.

⁷ D.W. Bixby, H.L. Fike, J.E. Shelton & T.K. Wiewiorowski,Sulfur, 22 ENCYCLOPEDIA OF CHEMICAL TECHNOLOGY 78 (John Wiley & Sons1982).

⁸ Id. at 79.

⁹ Id. at 97.

¹⁰ Walter Emrich, HANDBOOK OF CHARCOAL MAKING 13 (D. ReidelPublishing Co., 1985).

¹¹ Id. at 14, 17. 9

¹² R. Sasse, H. Homes, D. Hansen, W. Aungst, O. Doali, & R.Bowman, Evaluation of Black Powder Produced by the Indiana Army Ammunition Plant, 11 PROC. INT. PYRO. SEMIN. 489, Technical Report, Ballistic Research Laboratory, Aberdeen Proving Ground, Md.(1986).

¹³ S. Wise, R. A. Sasse, H.E. Homes, Organic Substitutes forCharcoal in ‘Black Powder’ Type Pyrotechnic Formulations, Technical Report, Ballistic Research Lab, Army Armament Research and Development Center, Aberdeen Proving Grounds, Md. (1984).

¹⁴ R.A. Sasse, Characterization of Maple Charcoal Used To Make Black Powder, Ballistic Research Lab, Army Armament Research Development Center, Aberdeen Proving Ground, Md. (1983).

¹⁵ Sasse. R. A., Characterization of Charcoal Used to Make Black Powder, 9 PROC. INT. PYROTECH. SEMIN. 471 (1984).

¹⁶ GOEX, Inc., Belin Plant, 1002 Springbrook Ave. Moosic, Pennsylvania, 18507. Phone: (717) 457‑6724.

¹⁷ Dr. Kenneth Kosanke, Editor of Journal of Pyrotechnics,1471 Blair Road, Whitewater, Colorado, 81527, (970) 245‑0692.

¹⁸ R. Sasse & J.E. Rose, Comparison of Spherical and Ellipsoidal Form Functions for Evaluating Black Powder, 13 PROC. INT. PYROTECH. SEMIN. 679 (1988).

¹⁹ John Uithol, Executive Vice President, National Muzzle Loading Rifle Association, Friendship, Indiana, (812) 667‑5131,advised the author in a private communication that some black powder rifle enthusiasts wish greater reproducibility of results in shooting. They therefore sieve purchased black powder to achieve a more uniform particle size. The sieving is required not only because of the size distribution which originates with the purchased product but also because of fracture in the can over time from jarring and dropping.

²⁰ Supra note 17.

²¹ J. E. Rose, Black Powder — A Modern Commentary — 1979, 10PROC. SYMP. EXPLOS. PYROTECH. 6a-1 (1979).

²² Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 163 (West Publishing Co., 1993).

²³ Confronting the New Challenges of Scientific Evidence,108 HARV. L. REV. 1481 1539 (1995).

²⁴ In re Agent Orange, 611 F.Supp. 1223 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234(1988).

²⁶ Regina v. Judith Theresa Ward was heard in the Royal Courts of Justice in the Court of Appeal, Criminal Division on June 4, 1992 before Lord Justices Glidewell, Nolan and Steyn. The case is notorious for its exposure of inappropriate forensic practices by government scientists.

²⁷ The Prosecutor’s Duty of Disclose: From Brady to Agurs and Beyond, 69 J. CRIM. L. & CRIMINOLOGY 197 (1978).

²⁸ Giglio v. United States, 405 U.S. 150 (1972).

²⁹ Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964).

³⁰ United States v. Eley, 335 F.Supp. 353 (N.D.Ga. 1972).

³¹ United States v. McCord, 509 F.2d 334 (D.C.Cir. 1974).

³² United States v. Agurs, 427 U.S. 97 (1976). 19

³³ Id. at 106.

Why make a Government scientist take the stand?

My answer is simple. I haven’t found a single analytical test or a single forensic science result that does not have some area of legitimate inquiry whether it is in the data (the test itself), the QC, the traceability of the standards, the QA performed, or the technicians, the expert or the very foundational validation of the technique employed. I know that is a bold statement, but it is true. Having said that, the question becomes does the issue matter to a jury? Now that is the issue. These cases are tried by purposeful design to folks (meaning the jury) who have absolutely no idea of the subject matter. If the science was going to be evaluated by other scientists, then it would a lot easier and a lot fewer miscarriages would occur, in my humble opinion. However, they are not. This is where someone like me comes in who can use transferable concepts to bridge the gap between the world of science and the world of the jury.

A paper audit can only show so much. Even the most detailed instructions that I see still allow for some individual discretion by the user. There may very well be a disconnect between the existence of a truly validated method with robust instructions and actual execution that is not traceable by the paperwork. Knowledge of protocol and protocol adherence are two entirely different concepts. There is also the “x-factor” which is can you, as a witness who is likely very nervous in front of a jury, explain what you do, how you do it and how it results in a specific (or really a near specific) qualitative measurement with a quantitative measurement that is very free of calibration and bias error SO THAT THE JURY CAN UNDERSTAND IT.

Perhaps there will someday where crime laboratories that have truly validated methods for what they do such as what exists in the GLP or EPA regulated world using perhaps the USP guidelines of well-designed validation experiments that investigate and prove at a minimum accu­racy (bias), pre­ci­sion (calibration), speci­ficity, limit of detection, limit of quantitation, lin­ear­ity and range, rugged­ness, robust­ness and uncertainty in their qualitative and quantitative measurement that are all the while verified on the particular instruments used by the particular operators using them. Perhaps someday they will publish and make available these efforts in a true validation report that features:

• Objec­tive and scope of the method (applic­a­bil­ity, type).
• Sum­mary of methodology.
• Type of com­pounds and matrix.
• All chem­i­cals, reagents, ref­er­ence stan­dards, QC sam­ples with purity, grade, their source or detailed instruc­tions on their preparation.
• Pro­ce­dures for qual­ity checks of stan­dards and chem­i­cals used.
• Safety pre­cau­tions.
• A plan and pro­ce­dure for method imple­men­ta­tion from the method devel­op­ment lab to rou­tine analysis.
• Method para­me­ters.
• Crit­i­cal para­me­ters taken from robust­ness testing.
• List­ing of equip­ment and its func­tional and per­for­mance require­ments, e.g., integration perimeters, base­line noise and col­umn tem­per­a­ture range.
• Detailed con­di­tions on how the exper­i­ments were con­ducted, includ­ing sam­ple prepa­ra­tion. The report must be detailed enough to ensure that it can be repro­duced by a com­pe­tent tech­ni­cian with com­pa­ra­ble equipment.
• Sta­tis­ti­cal pro­ce­dures and rep­re­sen­ta­tive calculations.
• Pro­ce­dures for QC in rou­tine analy­ses, e.g., sys­tem suit­abil­ity tests.
• Rep­re­sen­ta­tive plots, e.g., chro­matograms, spec­tra and cal­i­bra­tion curves.
• Method accep­tance limit per­for­mance data.
• The expected uncer­tainty of mea­sure­ment results.
• Cri­te­ria for revalidation.
• The person(s) who devel­oped and val­i­dated the method.
• Ref­er­ences.
• Sum­mary and conclusions.
• Approval with names, titles, date and sig­na­ture of those respon­si­ble for the review and approval of the ana­lyt­i­cal test procedure.

Maybe someday the process (sample preservation, sample prep, instrument running, data collection, and data interpretation) will be done by folks who are fully trained and fluent in the underlying theory of the technique they are employing as opposed to just simply the process employed.

Maybe someday all of the instruments will be control charted.

Maybe someday there will be truly blinded proficiency tests  on each analyst on a relevant sample that contains a target analyte that is something that can be frequently misinterpreted that is intermixed with routine samples run with very tight acceptance criteria with the quantitative result not dependent on the results of other laboratories but rather on the targeted and designed value.

Maybe someday the Quality Assurance officer will be a person who is more qualified in the theory, have demonstrated greater proficiency it the assay, and can actually employ the technique better than the person who runs the assay that they are called upon to evaluate. A lot of what I see is the QA officer is not technically trained in the theory or the process of the assay they are called upon to double-check. Such a regime makes QA little more than a rubber stamp.

Maybe someday there will be verifiable information that is kept by the laboratory that they will readily make available that justifies their data and their opinions. I find that the difficulty in getting the data is due to the typical crime laboratory being ultimately administratively lead by a sworn police officer who has no technical training in science whatsoever. A promoted traffic cop, if you will. This person (who is not steeped in the scientific culture of openness or transparency or has not even been meaningfully exposed to science likely has no idea of the process involved and what constitutes relevant information) has very much a “us-versus-them” mentality. Having said that, I personally don’t have any problem getting whatever data I want because I can explain exactly what I am looking for, why it could matter in a given case, and how it can make a difference in the validity of the measure or opinion offered. I frequently tell my colleagues that if you don’t know what it is and why it matters, then don’t ask for it. I usually do it with a smile first by sending my subpoena to the laboratory directly followed up with a very nice mannerly introductory phone call to their subpoena compliance officer and the person who is in charge of the science of the laboratory. After chatting with them and getting them to understand that while I may have a JD after my name and although I freely admit that I am not a PhD that I am fairly fluent in the science of it all, they generally recognize that I am not asking them to do all of this work for no purpose or as an act of meaningless busywork all wrapped in a game of “got you” but instead in a wholly legitimate effort to meaningfully examine the validity of the opinion expressed. If they choose not to be open, then that is their choice. It is America after all. It just will be a costly and tough process for them as I will force them to be wholly open by going into Court.

Maybe, just maybe, I would consider adjusting my view.