The myth of specific identification of Marijuana in criminal court Part 7: Is there a better way to test for marijuana?

On January 31, 2012, in Analysis, Chemistry, Equipment, Ethics, Identification, In The Courtroom, by Justin J. McShane

Through­out this series of posts we have exam­ined the Thorton-Nakumura pro­to­col that is used through­out the United States for the pros­e­cu­tion of ille­gal pos­ses­sion mar­i­juana. A fair exam­i­na­tion of the ques­tion reveals that there is no valid­ity to the notion that the 3 test reg­i­men pro­duces a valid con­clu­sion that the unknown exam­ined in fact con­tains THC.

Here are those series of posts:

  1. What is the goal and the pur­pose of test­ing of unknowns gen­er­ally? How do we best design a test for marijuana?
  2. How is most mar­i­juana test­ing con­ducted in the United States?
  3. What is micro­scopic mor­pho­log­i­cal exam­i­na­tion? Is it a “good” test?
  4. What is the mod­i­fied Duquenois-Levine test? Is it a “good” test?
  5. What is Thin Layer Chro­matog­ra­phy? Is it a “good” test?
  6. Is the com­bi­na­tion of all three tests cre­ate a “good” test­ing scheme?
  7. Is there a bet­ter way to test for marijuana?

There is a bet­ter way: Mod­ern Instru­men­ta­tion

There is an instru­ment dri­ven way that is very spe­cific and pro­duces ver­i­fi­able data. This instru­ment dri­ven tech­nique has been val­i­dated and if use in the val­i­dated man­ner with a prop­erly trained oper­a­tor uti­liz­ing proper sam­ple col­lec­tion, proper sam­ple selec­tion, proper sam­ple prepa­ra­tion, per­fect instru­men­ta­tion, and legit­i­mate inter­pre­ta­tion of the data will arrive at a valid result. This mod­ern day instru­men­ta­tion is called the Gas Chro­matog­ra­phy with Mass Spec­trom­e­ter (GC-MS).

Gas Chromatography with Mass Spectrometer

Gas Chro­matog­ra­phy with Mass Spectrometer

When the lab­o­ra­tory ana­lyst is pro­fi­ciency tested on unknowns and then graded to see whether or not they can con­duct a proper analy­sis of an unknown, the ana­lyst uses GC-MS. When the lab­o­ra­tory wants to check that the known that they have pur­chased from a third party ven­dor that is used and needed in Thin Layer Chro­matog­ra­phy (TLC) to com­pare against the unknown, the lab­o­ra­tory requires that it be ver­i­fied by GC-MS.

So when the lab­o­ra­tory really wants to know or really needs to know whether or not some­thing con­tains delta 9 THC, it uses the most spe­cific device avail­able that pro­duces ver­i­fi­able data. The ver­i­fi­able data are the print­outs that result from the analy­sis. This is called a Total Ion Cur­rent (TIC) chro­matogram and the result­ing spec­trum that is com­pared against an adju­di­cated known that is pro­duced by the National Insti­tutes of Stan­dards and Tech­nol­ogy (NIST).

Here are other blog posts on the GC-MS process:

  1. Introduction-The dif­fer­ent con­fig­u­ra­tions and the Elec­tron Impact process
  2. What types of mass ana­lyz­ers are there?
  3. What type of detec­tors are there?
  4. What types of analy­sis can be done?
  5. How do you read the output?
  6. How do they come to a qual­i­ta­tive mea­sure using software?
  7. How do they quan­ti­tate the results?
  8. Do you need chro­matog­ra­phy if you are using Mass Spectrometry?
  9. Other top­ics of inter­est about GC-MS

In the analy­sis of  unknowns that are seized, the process of deriva­ti­za­tion can be used to volatilize the sam­ple for intro­duc­tion the the GC-MS. For exam­ple, the ana­lyst can use MTBSTFA (N-methyl-N-(tert-butyldimethylsilyl)-trifluoroacetamide) or BSTFA/TMCS N,O-bis (trimethylsi­lyl) trifluoroacetamide/ Trimethylchlorosi­lane or MSTFA: N-methyl-N-trimethylsilyltrifluoroacetamide to deriv­a­tive the unknown.

A pop­u­lar tech­nique includes:

A sam­ple prepa­ra­tion that includes 500 mg of dry and homog­e­nized herbal cannabis are extracted with 5 ml methanol : chlo­ro­form (9:1 v/v) by the fol­low­ing pro­ce­dure: 10 sec­onds on a vor­tex, 15 min. ultra­sonic bath includ­ing again vor­tex­ing after 5, 10 and 15 min­utes, then cen­trifu­ga­tion. The sam­ple then needs to go through decar­boxy­la­tion. A 200 μl of the above extract are trans­ferred into a deriva­ti­za­tion ves­sel. The sol­vent is evap­o­rated under nitro­gen gas to dry­ness. The sam­ple is decar­boxy­lated for 15 min­utes at 210°C. The residue is dis­solved in 200 μl methanol : chlo­ro­form (9:1 v/v). The prepa­ra­tion of the final solu­tion next involves tak­ing the above decar­boxy­la­tion solu­tion and dilut­ing it with methanol by a fac­tor of 100 (in two steps, each 100 μl + 900 μl) and is then used for the analysis.

Also, THC is very much amenable to Head­space Solid Phase Microex­trac­tion (HS-SPME). It is a non-derivatization-based tech­nique where there is a extrac­tion from the solid dose itself. It is a more direct mea­sure as one is not chem­i­cally chang­ing the sam­ple. Dif­fer­ent types of fil­ters and fibers can be used such as poly­di­methyl­silox­ane 100 μm.

GC based test­ing for THC has been dis­cussed in  the sci­en­tific lit­er­a­ture since 1971. In 1991 the UNDCP study dis­cussed both GC-based meth­ods and HPLC meth­ods to iden­tify THC.

Other for­eign gov­ern­ments require much more test­ing than we do here in the United States. For exam­ple, Canada requires four tests includ­ing two instrument-based analy­sis that pro­duce ver­i­fi­able infor­ma­tion such as a spectrum.

There is a bet­ter way, but it is not used. This cer­tainly can­not be fair and just. It is time that we as cit­i­zens demand proof in the court­room and end the myth of spe­cific iden­ti­fi­ca­tion of mar­i­juana in crim­i­nal courtrooms.

The way to close this series is by an apt obser­va­tion made by Dr. Fred­eric White­hurst, PhD JD who wrote:

Many a defense attor­ney has looked in amaze­ment at the court­room “iden­ti­fi­ca­tion” of Cannabis Sativa L. by a law enforce­ment offi­cer sport­ing a gilded pot metal badge and a high school diploma who has writ­ten a report that would turn a ninth grade Eng­lish teacher’s hair gray and deny that same offi­cer a high school diploma. Obvi­ously the award­ing of a Basic Law Enforce­ment Train­ing (BLET) diploma ele­vates such high school grad­u­ates to the doc­toral level in botany, enabling them to con­duct a visual leaf archi­tec­tural analy­sis and the court accepted alchemy of the Duquenois Levine test to reach a con­clu­sion that the green veg­etable mate­r­ial in that lit­tle baggy can be iden­ti­fied as mar­i­juana to the exclu­sion of all other plant material.

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About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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First, let’s educate all of the lawyers

On January 3, 2012, in Analysis, Chemistry, Ethics, Identification, Laboratory Procedure, Lectures, by Justin J. McShane

The great Bard once penned:

All: God save your majesty!

Cade: I thank you, good people—there shall be no money; all shall eat and drink on my score, and I will apparel them all in one liv­ery, that they may agree like broth­ers, and wor­ship me their lord.

Dick: The first thing we do, let’s kill all the lawyers.

Cade: Nay, that I mean to do.

Henry The Sixth, Part 2 Act 4, scene 2, 71–78

Shakespeare’s char­ac­ter Dick the Butcher’s idea of a per­fect soci­ety was one where jus­tice pre­vailed because there were no lawyers. The trai­tor­ous Jack Cade had not so noble a rea­son for want­ing to get rid of all of the lawyers. He wanted to become the auto­crat in a quasi-communistic social rev­o­lu­tion. Cade alleges that all lawyers do is use laws and lan­guage set up by fel­low lawyers to oppress and ruin the life of every day man. There­fore, in his esti­ma­tion, no jus­tice results.

That is an extreme view.

I sug­gest that per­haps jus­tice best results when we have an edu­cated and orga­nized defense bar who is sci­en­tif­i­cally edu­cated in foren­sic sci­ence. As I have blogged before, the foren­sic sci­ence com­mu­nity as cur­rently prac­ticed in the United States today is very flawed. Extremely flawed. Fun­da­men­tally flawed. In some cases, if not the major­ity of cases, it is utterly unsci­en­tific. I agree with the sen­ti­ments that the crim­i­nal defense com­mu­nity shares a large por­tion of the blame. Many lawyers well before our times, let come into evi­dence prac­tices, tech­niques, and “the­o­ries” that had just but the very veneer of sci­ence and were, how­ever, any­thing but sci­en­tific and far from valid. This insti­tu­tional prop­a­ga­tion of error is a large hur­dle for many of us to over­come now where busi­ness as usual or sim­ple rep­e­ti­tion is some­how equated with validity.

So what are we to do?

Set up pro­grams where we edu­cate the defense bar.

I would like to high­light one of these: The Amer­i­can Chem­i­cal Soci­ety Hands-on Foren­sic Chro­matog­ra­phy course.

It is a five-days hands-on class con­ducted at Axion Ana­lyt­i­cal Lab­o­ra­to­ries, Inc. in Chicago, Illi­nois. This hands-on course is taught by three icons of chro­matog­ra­phy (Dr. Harold McNair, PhD, Dr. Lee Polite, PhD and Mr. Lew Fox) and two attor­neys who spe­cial­ize in eval­u­at­ing chro­matog­ra­phy and foren­sic sci­ence related cases (Justin J. McShane and Josh D. Lee).

 

The agenda includes:

Day 1

8:15am Reg­is­tra­tion and Snacks
8:30am Intro­duc­tion to Gas Chromatography
9:30am Inlet Sys­tems for Liq­uid Injections
10:30am Lab 1: GC Famil­iar­iza­tion and Parameters
11:45 Lab Review
12:00pm Lunch
1:00pm Fun­da­men­tals of Sep­a­ra­tion — Resolution
2:30pm GC The­ory
3:30pm Cap­il­lary Columns
4:30pm Lab 2: Col­umn Installation
6:00pm End of Session
7:30pm Group Din­ner

Day 2

8:30am Quan­ti­ta­tive Analysis
9:30am Dis­cus­sion of QC in the Foren­sic World
10:30am Lab 3: GC Quantitation
12:00pm Lunch
1:00pm Lab Review
2:00pm Head­space GC
4:00pm Lab 4: Head­space Demo
5:00pm End of Session
6:30pm Axion Labs spon­sored Group Dinner

Day 3

8:30am GC-MS The­ory
10:30am LC-MS The­ory
12:00pm Lunch
1:00pm Labs 5–7: Wet Lab –Sam­ple Preparation/ Inte­gra­tion / GC-MS Instrumentation
3:00pm FID Detec­tor
4:00pm Dis­cov­ery
5:30pm End of Session
7:05pm Sport­ing event

Day 4

8:30am Ethics
9:30am Lab 8: Walk­ing Down a Case-How to Sort, Iden­tify and Exam­ine Data (Con­fronta­tion Clause)
11:00 am Gen­eral Review of Major Concepts
12:00pm Lunch
1:00pm Defenses That Work
3:00pm Lab 9: Trou­bleshoot­ing GC Problems
4:30pm Lab 10: Beers and Data Round­table (Bring your own data set eval­u­ate with your small group)
8:30pm End

 

Day 5

8:30am Trou­bleshoot­ing Lab Review
9:00am Cross exam­i­na­tion of an Analyst
10:30am Direct Exam­i­na­tion of an Expert
12:00pm Trou­ble Shoot­ing Lab Review
12:30pm Soft stop of the course with gen­eral discussion
2:00pm Hard Stop-End of Course

This class attracts full of attor­neys from all across the United States. In this class atten­dees not only are instructed in the class­room the­ory that under­lies chro­matog­ra­phy (both liq­uid and gas chro­matog­ra­phy) in gen­eral and the spe­cific the­o­ries that allow for head­space analy­sis and how Flame Ion­iza­tion Detec­tor, UV-DAD and Mass Spec­trom­e­try (EI and EC based) works, and get to see the instru­ments, but they also get to do the fol­low­ing with their own two hands and more:

Hands-on Lab 1

Instru­ment Famil­iar­iza­tion where the atten­dees pre­form direct injec­tions into a Gas Chromatograph-Flame Ion­iza­tion Detec­tor (GC-FID) using EtOH sam­ples, and learn to inter­pret GC-FID chro­matograms, import and manip­u­late a method, change the dif­fer­ent vari­ables on the GC-FID and elu­ci­date the results.

Hands-on Lab 2

The atten­dees on their own GC machine remove and install cap­il­lary columns and all of the com­po­nents of the injec­tor (septa, liner, gold seal, etc.), check for effi­cien­cies, res­o­lu­tion, the­o­ret­i­cal plates, and learn about split ver­sus split­less injec­tor settings.

Hands-on Lab 3

The atten­dees on their own GC machine estab­lish a cal­i­bra­tion curve from CRMs for EtOH. The atten­dees on their own GC machine ana­lyze the response and pro­gram a cal­i­bra­tion curve (exter­nal stan­dard) and also use the Inter­nal Stan­dard method to assure qual­ity. The atten­dees on their own GC machine estab­lish meth­ods and report­ing of this cru­cial part of testing.

Hands-on Lab 4

The atten­dees con­tinue to use Head­space Gas Chromatograph-Flame Ion­iza­tion Detec­tor and also use Gas Chro­matog­ra­phy Mass Spec­trom­e­try (GC-MS) sys­tem, and use an High Per­for­mance Liq­uid Chro­matog­ra­phy (HPLC) system.

Hands-on Lab 5

Sam­ple Preparation-sampling ver­sus sam­ple selec­tion is demon­strated. The atten­dees do their own Pipet­ting. The atten­dees do their own con­trol chart­ing. The atten­dees use vol­u­met­ric flasks. The atten­dees learn about pre-analysis error hands-on and how it affects quan­tifi­ca­tion. The atten­dees are intro­duced to issues of metrol­ogy and Uncer­tainty Measurement.

Hands-on Lab 6

Inte­gra­tion. The atten­dees on their own Chem­Sta­tion work­sta­tion learn about inte­gra­tion and how easy it is to manip­u­late the data. The atten­dees manip­u­late their own data. The atten­dees learn what to look for that shows that the data was manip­u­lated, and the atten­dees learn how to manip­u­late data so that it is not dis­cov­er­able with­out the raw com­puter data in the soft­ware files.

Hands-on Lab 7

GC-MS Instru­men­ta­tion. The atten­dees see how easy life is for an ana­lyst. The atten­dees get to see the analy­sis of the raw data on a GC-MS and dis­cover how a true novice can turn into an “expert” with a sim­ple push of a but­ton. The atten­dees see with their own two eyes the “hid­den” data that the Gov­ern­ment and its lab­o­ra­tory doesn’t want any­one to see that will reveal the truth that the sup­posed “gold stan­dard” that pro­vides for the alleged “unequiv­o­cal iden­ti­fi­ca­tion” of test­ing of unknowns that is GC-MS is not perfect.

Hands-on Lab 8

How to Obtain Discovery/Walking Down a Case/Defenses that Win-Advanced Issue Spot­ting: In this lab, the best prac­tices in how to obtain dis­cov­ery with a spe­cial empha­sis on how to strate­gi­cally and prac­ti­cally build a record so that the atten­dees can get the raw data in its un-manipulated raw com­puter form and also in its print form. The atten­dees go through an actual case that was lit­i­gated that fea­tured experts on both sides, and issue spot all of the prob­lems with the dis­cov­ery and the data as it was presented.

Hands-on Lab 9

Trou­bleshoot­ing. The atten­dees on their own GC machine run an unknown sam­ple which may result in some sort of “prob­lem” in the chro­matogram. The atten­dees issue spot the prob­lem and ratio­nal­ize what is wrong, and fix it.

Hands-on Lab 10

The atten­dees with their lab part­ners go over their own data set from real cases to fig­ure out what is wrong with the atten­dees’ local laboratory.

Grad­u­ates of the group include:

STATE LAST NAME FIRST NAME   STATE LAST NAME FIRST NAME
Alaska Slone Fred New Jer­sey Her­nan­dez Steven
Ari­zona St. Louis Joe New Jer­sey Levow Evan
Cal­i­for­nia Barba Manny New Mex­ico Frechette Rod­er­ick
Cal­i­for­nia Brehmer Jeremy Okla­homa Edge Bruce
Cal­i­for­nia Ganci Eric Okla­homa Fabian Stephen
Cal­i­for­nia Gore­lick Lynn Okla­homa Hosty Tom
Cal­i­for­nia Laun­dry Vir­ginia Okla­homa Lee (x5)
 Josh D.
Cal­i­for­nia Mid­dle­brook Richard Okla­homa Pat­ter­son Clint
Cal­i­for­nia Moore Ron Okla­homa Sifers Jeff
Cal­i­for­nia Sturm Craig Ore­gon Carini, Jr. Peter
Cal­i­for­nia Tie­mann Roland Penn­syl­va­nia Bar­rouk Tim
Cal­i­for­nia Was­son James Penn­syl­va­nia Man­ches­ter Brian
Cal­i­for­nia Wap­ner Terry Penn­syl­va­nia McShane (x6)
 Justin
Col­orado Bussey Tim Penn­syl­va­nia Sher­man Mike
Col­orado Cessna Christo­pher Ten­nessee Garza (x2)
 Mar­cos
Col­orado Her­ringer William Ten­nessee May Roger
Col­orado Savela Jason Ten­nessee McK­in­ney Rob
Col­orado Orr Rhid­ian Ten­nessee Ryan Edward
Florida Kessler Mike Texas Bal­a­gia Jaime
Florida McIn­tosh Brett Texas But­ler Jim
Geor­gia Adams Clark Texas Boatwright Nicky
Geor­gia Bab­son Rocky Texas Case Kelly
Geor­gia Caron Brian Texas Cof­fey Mimi
Geor­gia Frye Kim Texas de la Paz Brent
Geor­gia Par­man Ann Texas del Cueto Andrew
Geor­gia Stein George Texas DeLuca Matt
Illi­nois Ram­sell Don­ald Texas Flood Tyler
Illi­nois Toney Sarah Texas Grant Dean­dra
Kansas Hul­nick Les Texas Hamil­ton Stephen
Louisiana Delatte (x2)
 Glynn Texas Hunter David
Louisiana Bates, Jr. James Texas McK­in­ney Troy
Mary­land Alpert Andrew Texas Mur­phy Doug
Mary­land Bruck­heim Michael Texas Ray Ben­nie
Mary­land Stamm Lenny Texas Segura Anthony
Mass­a­chu­setts Ober­hauser Gre­gory Texas Stauf­fer Phil
Michi­gan Boyle Michael Texas Trichter (x2)
 Gary
Min­nesota Ram­say Charles Texas Wilder Dou­glas
Mis­souri East­man Jef­frey Utah Schatz Jason
Mis­souri Holling­shead Jeremy Vir­ginia Keefer Bob
Mis­souri Ward Carl Vir­ginia Solak– (x2)
 Michael
Nebraska Dowd­ing Steve Wash­ing­ton Calla­han Linda
Nebraska Island Bell Wash­ing­ton DeBray Ted
Nevada Hayes Dale West Vir­ginia Wag­ner Harley
New Hamp­shire Russ­man Ryan Wis­con­sin Stuck­ert Lau­ren
New Hamp­shire Tenn John

There have been 89 grad­u­ates to date.

The next class (which is full) will be in April is sched­uled to have the fol­low­ing folks:

Patrick Maher

MD

Hunter Bie­der­man

TX

Wayne R. Foote

ME

John Hun­sucker

OK

Andrew Mishlove

WI

Michael J Snure

FL

Clark Adams (2nd time through)

GA

Andrew Bucher

OH

N. Cole Williams

NC

Jay M. Tiftickjian

CO

Bruce Edge (2nd time through)

OK

Brent de la Paz (2nd time through)

TX

Paul Liam McGlone

VA

Kevin Leck­er­man

PA

Jon W Woolsey

CA

Gor­don Senerius

SC

Nico La Hood

TX

Bryan E DePowell

PA

Joseph Cit­ron

GA

John j Eastland

TX

Jonathon Rands

WA

Shawn Dor­ward

PA

Jared Bartell

CA

To insure jus­tice, we need to have an edu­cated defense bar. We need more sci­en­tific pro­grams like this one.

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About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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What criminal defense attorneys do, matters

On December 19, 2011, in Ethics, by Justin J. McShane

You know what? Stand­ing up for what is right, good and legal is not easy. Being a crim­i­nal defense lawyer is dif­fi­cult. it takes daily re-dedication. It can be depress­ing in that the cards are stacked against the accused, the sys­tem largely is imper­vi­ous to sys­temic changes. We get yelled at by judges. The behav­ior that lands us in trou­ble is excused if done by pros­e­cu­tors. Dif­fer­ent stan­dards are applied in the appel­late courts based upon who the pro­po­nent of the posi­tion is. Where there are flaws that are exposed in the method or in the val­i­da­tion of the foren­sic tech­nique used in court, the sys­tem does not demand it be cor­rected, but instead it just keeps on grind­ing away with busi­ness as usual or only minor changes.

Nev­er­the­less, it is noble and hon­or­able to be a crim­i­nal defense attorney.

What a great pro­fes­sion and area of prac­tice that we work in as crim­i­nal defense attor­neys! We make a dif­fer­ence in count­less people’s lives for the pos­i­tive every day win lose or draw. We to help keep fam­i­lies together. We help to make sure jus­tice works. We look to mit­i­gate or elim­i­nate the con­se­quences that come by way of gov­ern­ment accu­sa­tion. We should be proud. We all have courage. Keep it up. One brave per­son, one brave attor­ney can make a dif­fer­ence. Win, lose or draw, we make a dif­fer­ence every day. As proof pos­i­tive that one brave per­son can make a dif­fer­ence, I offer you the fol­low­ing video that you can click on the pic­ture to make run. I know it inspires me, I hope it inspires you…

Some­times on the var­i­ous list­servs that I belong to there comes an email writ­ten in frus­tra­tion that basi­cally laments that what we do doesn’t mat­ter. In response to one such email, I authored the fol­low­ing. I would like to share it with you.

I fig­ure if another crim­i­nal defense attor­ney can stand up to what was wrong, then I fig­ure that when I have dif­fi­cult cases or a dif­fi­cult judge or dif­fi­cult pros­e­cu­tors or dif­fi­cult clients, then I should con­sider myself lucky because I can make a difference.

But it’s not just one attor­ney, it’s each and every per­son who hon­or­ably chooses to defend the accused. Every time you say ready for trial, then you inspire me. Every time you demand dis­cov­ery, you inspire me. Win, lose or draw. It takes courage to stand up when there is wrong, to raise your hand and cry foul, to say no to the leviathan when it seeks to crush for no legit­i­mate rea­son, to exclaim “Not on my watch!” to the unfet­tered power of the tyrant who in the case rules unjustly. Good­ness knows it’s so hard to do on a day-in and day-out basis to do the right thing. I find inspi­ra­tion in these words that are below in this YouTube video. It’s 2:21 sec­onds long. If you have never watched it, then you MUST. I don’t care if you have seen it 100 times. Every­one should invest a moment and click on the pic­ture and truly lis­ten (and not just hear)

The sim­ple fact of the mat­ter is that it is never easy to be first at any­thing that is good and right and socially con­tro­ver­sial. The foren­sic sci­ence com­mu­nity as cur­rently prac­ticed in the United States today is very flawed. Extremely flawed. Fun­da­men­tally flawed. In some cases, if not the major­ity of cases, it is utterly unsci­en­tific. It is per­haps that mod­ern day tyrant that Kun­stler speaks of that does its dirty work under the veneer of order and this aura of legit­i­macy and legal­ity within our system.

I agree with the sen­ti­ments that the crim­i­nal defense com­mu­nity shares a large por­tion of the blame. Many lawyers well before our times, let come into evi­dence prac­tices, tech­niques, and “the­o­ries” that had just but the very veneer of sci­ence and were, how­ever, any­thing but sci­en­tific and far from valid. This insti­tu­tional prop­a­ga­tion of error is a large hur­dle for many of us to over­come now where busi­ness as usual or sim­ple rep­e­ti­tion is some­how equated with validity.

In my time prac­tic­ing in this spe­cific area of law, I can give wit­ness to the tremen­dous amount of base­line shift in the aver­age lawyer’s sci­en­tific IQ. This is due in no small part to lead­er­ship and many mem­bers of var­i­ous orga­ni­za­tions and the many fine experts who vol­un­teer to teach. The sci­en­tific pro­gram­ming in the crim­i­nal defense com­mu­nity has con­sis­tently improved and what was advanced a year ago is now very basic.

While not every crim­i­nal defense attor­ney is fully edu­cated in the ways of sci­ence, by our actions and exam­ple of pro­fes­sion­ally fight­ing and being sci­en­tific skep­tics, we are mak­ing a dif­fer­ence. Other attor­neys see there is another way, a bet­ter way, the sleep­ing giant that is the core of the crim­i­nal defense com­mu­nity (exclud­ing those who dab­ble in it) is awakening.

While in iso­la­tion we might see our­selves as that sharp knife that whose effect on the glass of water might be minor, but the rip­ple effect can be awe­some. Tsunamis are made this way.

I am blessed in that this year alone I have lec­tured in 17 dif­fer­ent states and over 28 times and I see first­hand that peo­ple, our broth­ers and sis­ters, want to learn this “sci­ence stuff.” They know what many of us have known for many years, that the day of smoke and mir­rors is over. They are eager and charged up and inspired that they can make the sys­tem work and maybe even work better.

I agree that there can be a lim­i­ta­tion that is placed in front of our col­lec­tive enthu­si­asm that is insti­tu­tional and systemic—the judi­cial branch. Some in the judi­cial branch are edu­cated on sci­ence, and to those rare jurists I am very thank­ful. How­ever, most jurists are sim­ply not even intel­lec­tu­ally curi­ous or open to hear­ing about sci­ence. I find it hard to relate sci­ence (or basi­cally any­thing) to folks whose frame of ref­er­ence is that when they were grow­ing up the most sophis­ti­cated piece of machin­ery that they had reg­u­lar ready access to was per­haps an auto­mo­bile or a radio (prob­a­bly not even a TV). They grew up by in large in a time where no one “nor­mal” ques­tioned the gov­ern­ment and in terms of soci­ety the result of Brown v. Board of Edu­ca­tion was some­thing that was even debat­able and not some­thing that was a given and fundamental.

With that extreme lim­i­ta­tion in place, there is hope. As we grow in num­bers and in sophis­ti­ca­tion within our num­bers, there is gath­er­ing momen­tum. It will take time. It will be mea­sured in decades not sim­ply years. I real­ize this is of no solace to the crim­i­nally accused now. But we live in a time of the begin­ning and not at the end. What we have to do is con­tinue to be an inspi­ra­tion to each other, and to oth­ers to do right.

So if you see a crim­i­nal defense attor­ney today, stop her or him and thank them for all that they do. They pro­vide for my daily inspi­ra­tion. I thank them too.

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Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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Williams v. Illinois: The Confrontation Clause Rights in light of modern forensic science

On December 8, 2011, in Analysis, Ethics, by Justin J. McShane

On Decem­ber 6, 2011, the Unites States Supreme Court heard argu­ment in the case of Williams v. Illi­nois. The tran­scripts of the oral argu­ment can is avail­able on the Supreme Court of the United States web­site.

Some infor­ma­tion so you can under­stand the facts and the sub­se­quent analy­sis that I offer:

Sum­mary of the Facts: Defen­dant Williams was arrested on another offense about six months after a sex­ual assault had been com­mit­ted. The defen­dant pro­vided a blood sam­ple. A foren­sic sci­en­tist entered a deoxyri­bonu­cleic acid (DNA) pro­file into the state crime lab data­base. A match between the Cell­mark DNA pro­file was made with the defendant’s DNA pro­file. A foren­sic biol­o­gist tes­ti­fied at trial about the results of the DNA test con­ducted by a non-testifying ana­lyst. The Cell­mark DNA test was not admit­ted at trial. In a bench trial, defen­dant Williams was con­victed of aggra­vated crim­i­nal sex­ual assault, aggra­vated kid­nap­ping and aggra­vated rob­bery. See Peo­ple v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268 (July 15, 2010). (Source: federalevidence.com)

Very briefly and over sim­pli­fied, I offer the fol­low­ing expla­na­tion of DNA analy­sis. You are attempt­ing to “match” a known exem­plar to an unknown (typ­i­cally from the scene of the crime). In this case, the known exem­plar came directly from the accused, but not in the case of the typ­i­cal con­text that they have a sus­pect devel­oped and a search a war­rant is then exe­cuted.  The known came instead as a result of his arrest on an unre­lated crime that required DNA sam­pling and the pro­file placed into a data­base. Before his arrest, Cell­mark ana­lyzed an unknown that was the vagi­nal swab from an unre­lated alleged sex­ual assault for the pur­poses of pro­duc­ing the DNA pro­file (alle­les present). Cell­mark was con­tracted with the state to do so in order to try to free up the DNA back­log which is a very com­mon prac­tice nowa­days. Cell­mark is phys­i­cally located in Mary­land. The folks from Cell­mark who did the elec­trophore­sis step on the unknown being the most cru­cial step that pro­duces the DNA typ­ing and deter­mines what alle­les are present in the unknown sam­ple did not actu­ally tes­tify at trial. In fact, no one even famil­iar with Cell­mark and its process was at trial. The only evi­dence was that it was an accred­ited laboratory.

Abbinanti was the per­son at the Illi­nois State Police who did the analy­sis of the known. Lam­batos was the state’s expert wit­ness who the state claimed did an inde­pen­dent analy­sis of the orig­i­nal genetic mark­ers (the alle­les and the pro­file) of the DNA from Cell­mark that was the unknown com­par­ing it to the sam­ple by Abbinanti which was the known in order to arrive at his own con­clu­sion that it was a “match” between the unknown that was from the assault. The pros­e­cu­tion at trial being unable to admit the Cell­mark report through any of its tes­ti­fy­ing wit­nesses did not or could not admit that report, but attempted to “link” the results of the report as pre­sented through Lam­batos to it by way of the ship­ping man­i­fest for the item. There­fore, argu­ing through the cir­cum­stan­tial evi­dence this link (none of which Jus­tice Kennedy cor­rectly points out has any­thing to do with the actual accu­racy of the test).

This is clearly not a clean record for which to argue con­fronta­tion violation.

Here is the best anal­ogy that Attor­ney Car­roll, who argued for Williams, offered that I think makes sense:

Attor­ney Don Ram­sell of Illi­nois who is a very fine trial attor­ney in his own right, is on the board of Regents of the National Col­lege for DUI Defense, Inc. and has argued before the SCOTUS, said that per­haps the bet­ter anal­ogy rather than a pho­to­graph would be that of a sketch artist who gen­er­ated a pic­ture. I tend to agree with Attor­ney Ram­sell that the sketch artist anal­ogy would have been stronger. How­ever, the pho­to­graph anal­ogy is still apt.

Here is the way that I see this whole case as aptly sum­ma­rized and ques­tioned by Jus­tice Kagan in the fol­low­ing passage:

 Some not so brief analysis:

  1. Jus­tice Gins­burg early on seized in on one of my major fac­tual con­cerns in this case which was that the per­son who actu­ally ana­lyzed the known DNA did tes­tify live in trial. Jus­tice Gins­burg does cor­rect Jus­tice Breyer to cor­rectly point out the myth that has devel­oped in this case. There were not 10 ana­lysts who con­tributed to the pro­file made by Cell­mark, but only one. So the pros­e­cu­tion chose not to call this one wit­ness. She did shut down the Illi­nois advo­cate when she was try­ing to char­ac­ter­ize Lam­batos analy­sis as inde­pen­dent when in fact it was entirely depen­dent upon the input provided.
  2. Jus­tice Soto­moyer is not a given for either side. Jus­tice Soto­moyer was the first jus­tice to argue each advo­cate. In fact, she did not even let the state’s advo­cate hardly get out a salu­taiton before some very dif­fi­cult ques­tions came to be.
  3. Jus­tice Scalia still appears to think this whole sit­u­a­tion has vio­lated con­fronta­tion and the under­ly­ing data from Cell­mark, although not admit­ted, is utterly tes­ti­mo­nial because but for the analyst’s data there would no other infor­ma­tion upon which the tes­ti­fy­ing expert could have used to come to an “inde­pen­dent” con­clu­sion of a “match.” In the event that it is not admit­ted for the truth of the mat­ter asserted, then it seems that if Scalia was the trial judge, then he would have pre­cluded the Cell­mark evi­dence as irrel­e­vant to the issue at hand unless the except was asked in the form of a hypo­thet­i­cal where he was asked to accept it as true. Fur­ther, he would have likely pre­cluded Lambats’s opin­ion as hav­ing improper foun­da­tion (unless offered in the con­text of a clas­si­cal hypoth­e­sis). This was not the case here, there was no hypo­thet­i­cal. Every­thing was tes­ti­fied to as fact. In fact as he sees it Lam­batos was actu­ally a straight con­duit for the Cell­mark infor­ma­tion. He also really ham­mers home the need to know if the ana­lyst or the lab­o­ra­tory such as the one at Cell­mark is com­pe­tent and dili­gent. In this case they knew noth­ing about Cell­mark on the record. (Harken­ing back to his famous quote from M-D: The Con­sti­tu­tion pro­vides for con­fronta­tion even if they have “the sci­en­tific acu­men of Mme. Curie and the verac­ity of Mother Teresa.) This is pre­cisely the type of argu­ment that was fea­tured and devel­oped in The Cham­pion arti­cle that Josh Auriemma, Sebas­t­ian Watt and I offered that was enti­tled “In a Post-Bullcoming World: Does Jus­tice Sotomayor’s Con­cur­rence Under­mine the Major­ity Opinion?”
  4. SHOCKINGLY, JUSTICE KENNEDY SEEMED TO AGREE WITH THIS ANALYSIS (point 3). He even seemed to agree that it is viola­tive of hearsay and con­fronta­tion to a degree.
  5. Per­haps even Jus­tice Breyer agrees that it is viola­tive of both, but he appeals to the orig­i­nal­ist notion that Pro­fes­sor Wig­more notes that there were excep­tions sim­i­lar to this as far back as the 17th cen­tury. He keeps his orig­i­nal thoughts in place that expe­di­ence (not requir­ing the Gov­ern­ment to pro­duce 10 wit­nesses) and clas­si­cal bur­den shift­ing (if the defense wants them, then they can sub­poena them and a com­pli­cated notice and demand type notion that the defense should dis­cover a flaw and only then be able to demand the DA to make pres­ence in trial of the ana­lyst) should trump all con­cerns. He car­ries the doom and gloom line that if this were to go for­ward then the more reli­able evi­dence of DNA will not be pre­sented or even asked to be ana­lyzed from crime scenes and instead the unre­li­able eye­wit­ness tes­ti­mony will be the be all and end all. Scalia came to Carroll’s the res­cue. Scalia sug­gested that Wig­more was writ­ing exclu­sively about hearsay and not con­fronta­tion. Car­roll picked up on the sug­ges­tion and agreed.
  6. Alito seems to still be firmly in the camp of gov­ern­ment. He basi­cally par­roted the government’s pre­ferred fram­ing of this argu­ment in that for time eter­nal experts have been rely­ing upon inad­mis­si­ble hearsay (not offered for the truth of the mat­ter asserted) and even per­haps inadis­si­ble tes­ti­mony to pro­vide the basis of their opin­ion. He also seems to firmly be entrenched in the sky is falling bunch.
  7. Jus­tice Kagan, and to a degree Alito, seem to think that this whole record is not an issue of fed­eral con­fronta­tion but rather of Illi­nois evi­dence law where it should have been argued that there was insuf­fi­cient foun­da­tion laid to intro­duce Lam­batos opinion.
  8. Jus­tice Roberts seems to think that cross exam­i­na­tion will fer­ret out the inher­ent weak­ness of the tes­ti­fy­ing expert’s opin­ion in not hav­ing the Cellmark-type of per­son there. In other words, that the defense would be able to dis­cover and expose the con­di­tion prece­dent to the con­clu­sion of “match” as being per­haps not a valid one in that it requires proof that both the exem­plar was from the accused and that the unknown was actu­ally ana­lyzed correctly.
  9. Jus­tice Kennedy at one point com­pares the evi­dence in Bull­com­ing to the evi­dence here with Cell­mark and opines that at least in Bull­com­ing there was some­one there from that par­tic­u­lar lab­o­ra­tory wo could answer ques­tions. In Williams, there was no one famil­iar with any of the par­tic­u­lars of the analy­sis or ana­lyst that was con­ducted at Cell­mark so there­fore under Scalia’s analy­sis, if he were so inclined to adopt it, this case is a worse vio­la­tion of Con­fronta­tion than Bull­com­ing. He goes on to fur­ther say that under Bull­com­ing the SCOTUS found that merely being accred­ited was not enough (Cell­mark was accred­ited in this case). Then the pros­e­cu­tor tried to say the elec­tro­phero­gram was just machine gen­er­ated mean­ing­less infor­ma­tion until inter­preted. Kennedy said that that argu­ment was tried in Bull­com­ing and M-D and failed both times. This seemed to stymie the pros­e­cu­tor. Then the pros­e­cu­tor tried to argue that the evi­dence sub­mit­ted to Cell­mark and its cor­re­spond­ing results (remem­ber this is the vagi­nal swab from the crime scene of the sus­pected and alleged sex­ual assault) was not for the pri­mary pur­pose of pros­e­cu­tion which fell flat for some­what obvi­ous reasons.

Hold your breath, cross your fin­gers, and say a prayer for the poor cit­i­zen accsued.

I won­der if the “miss­ing” wit­ness had not been the one who had con­ducted the analy­sis on the unknown, but instead was the per­son who con­ducted the analy­sis on the known instead, would the Court have viewed this case dif­fer­ently? I would think not, but there is no doubt that it helped Williams that the “miss­ing” wit­ness was the per­son who pro­duced the results on the main piece of tan­gi­ble evi­dence (the vagi­nal swab).

Here is some addi­tional infor­ma­tion from the SCOTUSblog:

Williams v. Illinois

Docket No. Op. Below Argu­ment Opin­ion Vote Author Term
10–8505 Supreme Court of Illinois Dec 6, 2011
Tr.		 TBD TBD TBD OT 2011

Issue: Whether a state rule of evi­dence allow­ing an expert wit­ness to tes­tify about the results of DNA test­ing per­formed by non-testifying ana­lysts vio­lates the Con­fronta­tion Clause, when the defen­dant has no oppor­tu­nity to con­front the actual analysts.

Plain Eng­lish Issue: Whether a court vio­lates a crim­i­nal defendant’s rights under the Con­fronta­tion Clause by allow­ing an expert wit­ness to tes­tify about the results of DNA test­ing con­ducted by another ana­lyst who has not appeared as a wit­ness at the trial.

SCO­TUS­blog Coverage

Briefs and Documents

Mer­its briefs for the Petitioner

Ami­cus briefs in Sup­port of the Petitioner

Mer­its briefs for the Respondent

Ami­cus briefs in sup­port of the Respondent

Certiorari-stage doc­u­ments

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Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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A collosial waste of taxpayer money all in the name of forensics

On November 29, 2011, in Analysis, DNA, Equipment, Ethics, by Justin J. McShane

I have seen a lot of gov­ern­ment waste all in the name of foren­sic sci­ence, but this one is utterly fool­ish. It needs noth­ing but it’s straight fact reporting…

The DNA Bus

The DNA Bus

Flashy $330,000 DNA Bus Bought by County

Designed by the com­pany that built Dr. Oz’s jumbo bus, the vehi­cle will col­lect DNA sam­ples and serve as a mobile com­mand post for law enforce­ment. It comes loaded with flat-screen TVs, com­put­ers and an Aqua-Magic toilet.

It’s not as cool as the heav­ily armed Urban Assault Vehi­cle dri­ven by Bill Mur­ray in Stripes, but a flashy law-enforcement motorhome will soon be rolling to Orange County crime scenes.

On Tues­day, the county Board of Super­vi­sors ordered a $330,000 DNA Col­lec­tion Vehi­cle that can dou­ble as a mobile emer­gency com­mand cen­ter. The 36-foot-long vehi­cle was requested by the county Dis­trict Attorney’s office, which will use a fed­eral grant to buy it.

Right now, when the D.A. inves­ti­gates an officer-involved shoot­ing, for exam­ple, its eight-man team has no place to inter­view wit­nesses or go to the bath­room, Assis­tant Dis­trict Attor­ney Bruce Moore told the supervisors.

That won’t be a prob­lem with the DNA bus, which comes with a slide-out con­fer­ence room and awning, as well as an Aqua-Magic toi­let that is “styl­ish, con­tem­po­rary and home­like” and fea­tures “a vig­or­ous flush with 100 per­cent bowl coverage.”

Built by LDV Inc., a Wis­con­sin com­pany that also designed Dr. Oz’s High­way to Health bus, the DNA vehi­cle is decked out with black­out cur­tains for the cab, flat-screen TVs, com­put­ers, a mini-kitchen and assorted gadgets.

In addi­tion to mak­ing appear­ances at crime scenes, the vehi­cle would be dis­patched to col­lect DNA sam­ples at parole offices, courts, gang injunc­tions and other loca­tions, Moore said. It could also be used to haul away com­puter hard­ware and doc­u­ments when busi­nesses are served with search warrants.

Super­vi­sor Shawn Nel­son ques­tioned the price of the vehi­cle, won­der­ing if the county couldn’t find a suit­able RV at a frac­tion of the cost. What does the DNA vehi­cle have that a big motorhome lacks, he asked.

“I don’t know the answer to that,” Moore replied. How­ever, in a phone inter­view after the meet­ing, he men­tioned the vehicle’s stain­less steel con­struc­tion, radio sys­tem and elec­tronic gear. “It’s a lot more than a motorhome.”

Con­struc­tion of the vehi­cle will take nine months to a year to com­plete, Moore said.

 
About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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We are the problem-Criminal Defense Attorneys

On November 22, 2011, in Analysis, Ethics, by Justin J. McShane

Has the crim­i­nal defense com­mu­nity been like Bill Buck­ner and let­ting the easy grounders gen­tly roll past us?

I think so.

Per­haps too fre­quently in this blog, we high­light what is wrong with foren­sic sci­ence. What is one of the biggest prob­lems (and may even be the biggest prob­lem) is the incred­i­ble lack of inter­est in sci­ence by the crim­i­nal defense attor­ney. This is some­thing that the National Acad­emy of Sci­ences noted in its ground break­ing pub­li­ca­tion Strength­en­ing Foren­sic Sci­ence in the United States: A Path Forward.

Edu­ca­tion and Train­ing. Stu­dents in the phys­i­cal and life sci­ences should be encour­aged to pur­sue grad­u­ate stud­ies to improve and develop applic­a­ble research method­olo­gies in foren­sic sci­ence through schol­ar­ship and grant pro­grams admin­is­tered by The new fed­eral entity. Con­tin­u­ing legal edu­ca­tion pro­grams for law stu­dents, prac­ti­tion­ers and judges should also be estab­lished and supported.

The only way we can insure that a just result comes is if we make sure that the only thing that stands between the accused and the leviathan that is the gov­ern­ment (which is the crim­i­nal defense attor­ney) is edu­cated. The sad real­ity is the hor­ri­ble under­fund­ing of the office of the pub­lic defender in the var­i­ous juris­dic­tions. Even pri­vate attor­neys infre­quently have clients who can both afford them and then an appro­pri­ate expert. Part of the solu­tion is to either man­date edu­ca­tion in sci­ence to those who han­dle crim­i­nal defense cases or shame them into it. We need to become bet­ter educated.

 
About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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Dry-labbing leads to.… early retirement

On October 25, 2011, in Analysis, Ethics, by Justin J. McShane

Perhaps noth­ing irks me more than read­ing about dry-labbing. In case you have never heard of it dry-labbing is a phe­nom­e­non whereby the lab­o­ra­tory ana­lyst reports out a result but actu­ally did no test­ing what­so­ever. Dry-labbing in a crime lab­o­ra­tory is par­tic­u­larly dan­ger­ous given that crime lab­o­ra­to­ries are noto­ri­ously opaque and absolutely not trans­par­ent. Data of any sort is infre­quently pro­vided and instead only one sen­tence con­clu­sory state­ments are provided

It is an act of fabrication–lying. If it is reported out then it can lead to a false conviction.

What hap­pens if a lab­o­ra­tory ana­lyst gets caught?

Surely they are pros­e­cuted, right?

Wrong!

They get to retire.

Dry lab means retirement on the beach

Dry lab means retire­ment on the beach

Their vic­tims go to jail. Lives are ruined. Sounds fair, right?

CLAYTON • A crime lab sci­en­tist has resigned after police say she did not prop­erly test for mar­i­juana in drug cases.

The sci­en­tist had worked for the lab for more than 20 years, but police are con­fi­dent she only skipped proper test­ing pro­ce­dures dur­ing the month of Sep­tem­ber. Her name will not be released until the inter­nal affairs inves­ti­ga­tion is com­plete, said St. Louis County Police Chief Tim Fitch.

“We’re con­fi­dent that we’ve nar­rowed it to only seven cases,” Fitch said, adding that inves­ti­ga­tors still are try­ing to deter­mine the employee’s motive.

The woman’s cowork­ers tipped off a super­vi­sor that she had been tak­ing short­cuts on test­ing pro­ce­dures. She had been sus­pended with pay on Fri­day, but resigned today, Fitch said.

“She sub­mit­ted lab reports say­ing she tested it when in fact she didn’t,” Fitch said.

A dif­fer­ent sci­en­tist con­ducted new tests in the seven cases and con­firmed the tested sub­stances are mar­i­juana, Fitch said.

Whether the woman will be crim­i­nally charged is up to St. Louis Pros­e­cu­tor Bob McCulloch.

“The good thing is that it was caught by our qual­ity assur­ance pro­ce­dures,” Fitch said. “I credit the other sci­en­tists’ ethics.”

Fitch said the St. Louis County police will be hir­ing an inde­pen­dent audi­tor to review the employee’s work. That could take about 60 days to complete.

 
About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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Help wanted: External Quality Assurance Officer for Forensic Laboratories

On September 29, 2011, in Analysis, Ethics, by Justin J. McShane

On occa­sion I attend var­i­ous sci­en­tific short courses such as the ones put on by the Amer­i­can Chem­i­cal Soci­ety, the National Fire Pro­tec­tion Asso­ci­a­tion, The Chro­matog­ra­phy Forum of Delaware Val­ley or var­i­ous man­u­fac­tur­ers such as Restek, Agi­lent and the like. I highly com­mend any lawyer to go to these con­fer­ences and sem­i­nars. In my opin­ion it is far bet­ter to gain the fun­da­men­tal knowl­edge from the source as often these sem­i­nars are taught sub­ject mat­ter pre­em­i­nent experts and thought lead­ers in the par­tic­u­lar field.

I try my best to main­tain a very low pro­file when I attend these courses. I feel as though I am an invited guest into this won­der­ful world and as such it is best to be an inter­ested, but not ter­ri­bly actively engaged, par­tic­i­pant. This is not to mean that I don’t pay great atten­tion or refuse to answer ques­tions when they are asked of me or don’t ask ques­tions when I don’t under­stand con­cepts, but I also don’t vol­un­teer to answer ques­tions or hijack the course in an effort to get the answer some eso­teric aside that is not gen­er­ally applic­a­ble to the core audi­ence. As a gen­eral propo­si­tion, these classes are made up entirely of peo­ple who are in indus­try. Rarely, if ever are there state sci­en­tists there. I never run into another attor­ney (unless I recruit a friend to come to the course with me).

Invari­ably, no mat­ter how big the short course is, there comes a time when the class par­tic­i­pants intro­duce them­selves to each other in the class. Some­times I cringe a lit­tle bit as I am not a cre­den­tialed sci­en­tist and am not actively involved in the test­ing of sam­ples or in the direct appli­ca­tion of the sci­ence. When that is revealed, there are typ­i­cally one of two types of reac­tions by the audi­ence or the instruc­tor: a witty one or an accept­ing one. Largely, every­one is very accept­ing. It is funny that at these short courses, in the rare case when they are there, state sci­en­tists who you may pre­sume are most likely not to accept my exis­tence on the planet earth turn out to be the most accept­ing of my pres­ence and involve­ment. Per­haps it is because we are out­side of the court­room and the adver­sar­ial sys­tem. In fact, many of them make it a point to come up to me and com­mend me for attend­ing the class and com­ple­ment me for answer­ing ques­tions cor­rectly or ask­ing thought­ful ques­tions. The witty recep­tion moments are usu­ally based upon the default posi­tion that they think that I have absolutely no prior expo­sure to the topic. Then after it is revealed that I do, an equi­lib­rium is achieved where I am treated just as any other student.

All of this leads me to highly rec­om­mend to my col­leagues that they take these types of courses. You learn a lot. You net­work a great deal.

As men­tioned above, there is a point in time in these courses where intro­duc­tions are made. So, the ques­tion becomes what do you say to this audi­ence. I used to give my stan­dard “ele­va­tor speech” when I was asked which goes some­thing like this: “I am a trial attor­ney who spe­cial­izes in using val­i­dated foren­sic sci­ence and expos­ing non-validated foren­sic sci­ence for the ben­e­fit of the cit­i­zen among us who has been accused of a crime.” That sounds nice. It is wholly accu­rate. It is also a good state­ment to use for a gen­eral audi­ence. How­ever, for this spe­cific type of audi­ence, mean­ing sci­en­tists in short courses, it is not ter­ri­bly descrip­tive. So, I got to think­ing about what is it that I really do and how can I present it in a way that res­onates, and does not seem to be overtly con­fronta­tional so that it would not invite a witty retort or that inac­cu­rate default posi­tion that some would assume with my pro­fes­sion. After a while, it came to me:

I am an exter­nal qual­ity assur­ance offi­cer for lab­o­ra­to­ries who present their con­clu­sions and data in court.

That is cer­tainly true. It is far more descrip­tive. I look at data, reports and cre­den­tials of those per­form­ing assays as any good and con­sci­en­tious QA offi­cer would do in a given lab­o­ra­tory. I just do it externally.

So now I am recruit­ing you my col­league and say­ing “I want you,” not unlike Uncle Sam in World War II, and recruiting/challenging you to become a detail-oriented exter­nal qual­ity assur­ance offi­cer for crime lab­o­ra­to­ries. It is a great job with a bright future where you can make a true dif­fer­ence in someone’s life.

I want you

 
About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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Are we accepting “Moonlight” or the scientific truth in the courtroom

On September 27, 2011, in Ethics, by Justin J. McShane

I am going to write some­thing that may shock you, but:

There is no such thing as moonlight.

Think about it.

Moon­light is sim­ply a reflec­tion of sun­light on the moon’s sur­face. The moon emits no light of its own ori­gin. Yet, peo­ple call it moon­light. Moon­light is a mis­nomer. It is a con­cep­tual myth. For the moon gives noth­ing of itself when it shines, it only reflects a part of the sun­light it has received.

The phrase “moon­light” was a use­ful con­struct that we all devel­oped and adopted a long time ago when we orig­i­nally thought its name was an accu­rate descrip­tion of the phe­nom­e­non whose inac­cu­racy has been soundly rejected by sci­ence, yet its mis­nomer per­sists. It is highly unlikely to be removed from our cul­tural lex­i­con and will prop­a­gate error for as long as humans exist.

Accord­ing to the online ety­mol­ogy dic­tio­nary, the use of the phrase “moon­light” as a noun mean­ing “light of the moon” is began in the mid-14th cen­tury. It began is use in pop­u­lar cul­ture from Edward Lear when he wrote “And hand in hand, on the edge of the sand, They danced by the light of the moon, The moon, The moon. They danced by the light of the moon.” It is per­haps fit­ting that Edward Lear pop­u­lar­ized the mis­nomer as Edward Lear (12 May 1812 – 29 Jan­u­ary 1888) was an Eng­lish artist, illus­tra­tor, author, and poet, renowned today pri­mar­ily for his lit­er­ary non­sense, in poetry and prose, and espe­cially his lim­er­icks, a form that he pop­u­larised. It seem­ingly became most ensconced into our sub­con­scious when Alfred Ten­nyson, the 1st Baron Ten­nyson wrote his famed poem The Lover’s Tale where he repeat­edly fea­tured the mis­nomer some 10 times.

So now, it per­sists. I sug­gest that nearly every­one over the age of 12 knows it is wrong, but we do noth­ing to cor­rect it.

It is per­haps inno­cent and benign hav­ing no mea­sur­able impact on our lives and well-being. Maybe this is why it per­sists and endures.

What would hap­pen if that were not so? What if it did mat­ter? Would we stop it? Would we change?

I sug­gest that to a degree that we are pre­sent­ing “moon­light” in the court­room. Far too fre­quently, we allow into the court­room as com­pe­tent, sub­stan­tive evi­dence that forms the basis of guilt non-validated tech­niques. When, if ever, are we going to stop it. When are we going to let the sun­shine in?

 
About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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The Problem of Modern Forensic Science: Novices can become experts at the push of a button

On September 22, 2011, in Analysis, Equipment, Ethics, by Justin J. McShane

I have lamented before about the hor­ri­ble state of affairs that has devel­oped in mod­ern foren­sic sci­ence and in par­tic­u­lar instru­men­ta­tion. As an indus­try, the machine man­u­fac­tur­ers seek to auto­mate and make these processes so sim­ple that they no longer require true under­stand­ing of the under­ly­ing sci­ence or the process that makes the machine do as it does. So what we end up with are under-trained, une­d­u­cated, and ill-informed but­ton push­ers per­form­ing com­pli­cated sci­ence and report­ing out results with­out a true appre­ci­a­tion or abil­ity to eval­u­ate the results to deter­mine whether or not they are rel­e­vant or correct.

What is worse is that these but­ton push­ers are given the title by the gov­ern­ment of “foren­sic sci­en­tist” and are pro­duced in court as experts. Clearly, they are nei­ther. They are not sci­en­tists, but merely tech­ni­cians. They are not experts, but merely but­ton push­ers. But­ton push­ers are sim­ply repeaters of a pro­to­col or instruc­tion set. They fol­low instruc­tions. They per­form step 1, then 2, then 3 then 4. Experts under­stand and can explain the process as well as the under­ly­ing sci­ence that results in the pro­ce­dure and instruc­tions. They, unlike the but­ton push­ers, can explain why the process is not 1, 3, 4, and 2, but must be 1, 2, 3, and 4. They can also explain why step 2 needs to be per­formed in the spec­i­fied man­ner. They also can explain what hap­pens if step 2 is skipped altogether.

What we should have in court to answer ques­tions and pro­duce evi­dence to the trier of fact are true sub­ject mat­ter experts who under­stand the true sci­ence of it all, yet by and large we have but­ton push­ers in court who are pre­sented to the jury falsely as experts.

The prob­lem of this per­haps is obvious.

As I men­tioned, there is a con­scious effort by the machine man­u­fac­tur­ers to pro­duce these push but­ton solu­tions. If they can dumb down the instru­men­ta­tion to a point where no train­ing or lit­tle train­ing is needed, then they can sell more machines as more folks can use them. Their motive is profit. They make more profit if they can open up the tech­nol­ogy for more peo­ple to use. While I am an affirmed cap­i­tal­ist, this is dan­ger­ous and evil. In fact at the most recent Amer­i­can Chem­i­cal Soci­ety National Meet­ing held in Den­ver, Col­orado while I was vis­it­ing the exhi­bi­tion hall where the var­i­ous machine man­u­fac­tur­ers were sell­ing their prod­ucts, I came across one man­u­fac­turer who was bla­tant about it:

Novices can become experts in a push of a button

From novice to expert in a push of a button
From novice to expert in a push of a button

Just because you get A result, does not mean it is the cor­rect (true) result (free of cal­i­bra­tion error and free of bias). Just because you get a cor­rect result, doesn’t mean you have a rel­e­vant result. This is why we need to make sure that we edu­cate these machine oper­a­tors beyond the task of push­ing a but­ton. Our lib­erty and jus­tice depends on it.

 
About the author

Justin J. McShane

Harrisburg DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency. Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.

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