Guest Blog Post From Dr. Frederic Whitehurst PhD JD: Circuitous thought-the myth of reliable and valid marijuana identification in the courtroom

On March 1, 2012, in Analysis, Chemistry, Contextual Bias, Equipment, Ethics, Identification, In The Courtroom, by Justin J. McShane

Cir­cuitous thought-the myth of reli­able and valid mar­i­juana iden­ti­fi­ca­tion in the courtroom

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

As sci­en­tists we all agree that the hall­marks of sci­ence are valid­ity and reli­a­bil­ity. What do we mean by that? Well, the gov­ern­ment sci­en­tist has to agree that his method of answer­ing a ques­tion put to him has to be valid and reli­able. So no mat­ter how he iden­ti­fies mar­i­juana that method must be valid and reli­able. Sci­en­tists deter­mine valid­ity and reli­a­bil­ity with data. What does valid­ity mean? It means that the method we use to answer a ques­tion must appro­pri­ate for the use to which we put it. Bet­ter said, just because we have a ham­mer does not mean every­thing is a nail.

The ques­tion we are ask­ing about mar­i­juana is “Is this mate­r­ial mar­i­juana?” That means is it mar­i­juana to the exclu­sion of all other plants? So we have to have a pro­to­col that will show us that the mate­r­ial we have is mar­i­juana to the exclu­sion of all other plants. In order to show that our pro­to­col is valid we must either have tested all other plants or have a the­o­ret­i­cal argu­ment as to why no other plant can be mis­taken for mar­i­juana using our pro­to­col. The only attempt at val­i­da­tion that has been con­ducted in the past is the work of George Naka­mura and John Thorn­ton back in the early 1970’s. That did not show the pro­to­col iden­ti­fied mar­i­juana to the exclu­sion of all other plants but only tested the pro­to­col on 31874 plants. So no one has val­i­dated the pro­to­col. The gov­ern­ment sci­en­tist can not show that. In a Frye state we accept the opin­ion if the method used to arrive at it is accepted by the com­mu­nity of peers. The com­mu­nity of peers do not accept that the mar­i­juana analy­sis pro­to­col is valid because no one has val­i­dated the pro­to­col. They just use the method. No one has val­i­dated it. As for reli­a­bil­ity, that means if the tests is per­formed by one per­son many times or by many peo­ple will one get the same answer. How­ever, there are no reli­a­bil­ity stud­ies known. Gov­ern­ment sci­en­tists sim­ply say that they always get the right answer and never have got­ten the wrong answer but they are not being tested for reli­a­bil­ity with known stan­dards. They are sim­ply say­ing that the unknowns must be mar­i­juana because the police say they are mar­i­juana so they must be marijuana.

Cir­cuitous thought. Wrong think­ing. Com­pound that with the paucity of sci­en­tific data that exists to test the reli­a­bil­ity hypoth­e­sis and you have noth­ing to refer to to indi­cate that the pro­to­col is actu­ally reli­able. So the peer group would agree that in order for the pro­to­col to be used it must be shown to be valid and reli­able and it has not been shown to be so it can’t be used…but they use it anyhow.

_______________

[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.

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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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The Confrontation Clause: Who has to show up in court and why

On February 24, 2012, in Analysis, Ethics, In The Courtroom, Lectures, by Justin J. McShane

The below is a full lec­ture on the Con­fronta­tion Clause and the expla­na­tion of the “Pri­mary Pur­pose Rule,” the “Par­tic­u­lar Wit­ness Rule,” and an exam­i­na­tion of all of the cur­rent cases as decided or pend­ing before the United States Supreme Court. This lec­ture is pre­sented from a prac­ti­cal point of view for the ben­e­fit of all parties.

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

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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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The definition of courage and personal integrity

On February 21, 2012, in Ethics, by Justin J. McShane

The life of a crim­i­nal defense attor­ney is not glamorous.

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).

In the United States, an African American man was gagged and shackled
In the United States, an African Amer­i­can man was gagged and shack­led as he was act­ing as his own coun­sel not some long ago time, but in 1968

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!”

Judge Julius Hoffman
Judge Julius Hoffman

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.

Courage
Courage

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

 
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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Why not stipulate to a forensic science result?

On February 14, 2012, in Analysis, Chemistry, Contextual Bias, Equipment, Ethics, General Information, In The Courtroom, by Justin J. McShane

I was recently asked a ques­tion which is basi­cally this: “Justin, why don’t you stip­u­late to any foren­sic sci­ence result ever?”

Why make a Government scientist take the stand?

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 régime 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.

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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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Guest Blog Post From Dr. Frederic Whitehurst PhD JD: “Matches” An Over inference of Data? A Giglio Obligation? The case of Paint Examination

On February 9, 2012, in Analysis, Chemistry, Contextual Bias, Ethics, Identification, In The Courtroom, Trace Evidence, by Justin J. McShane

“Matches” An Over infer­ence of Data? A Giglio Oblig­a­tion?: The case of Paint Examination

By:  Fred­eric White­hurst, J.D., Ph.D. [1] and Dar­lene R. Brezin­ski, Ph.D.[2]

Foren­sic chem­i­cal analy­ses of com­plex matri­ces such as plas­tics, paints, or paper prod­ucts, may lead to incon­clu­sive results with­out ana­lysts or review­ing coun­sel aware of the fail­ing of the analy­ses. Com­plex matri­ces are mate­ri­als which con­tain many com­po­nents in vary­ing mass ratios.  These types of mate­ri­als are reg­u­larly pre­sented as evi­dence to the mod­ern foren­sic chem­i­cal analy­sis lab­o­ra­tory. An exam­ple of such evi­dence is paint.

When vehi­cles col­lide there is often a trans­fer of paint from sur­face to sur­face. When homes are bur­glar­ized, paint pried from entrance points can adhere to tools used to make forced entry. Parts of home-made bombs at times are painted and, when those bombs explode, parts from the bombs still have paint adher­ing to them.

Paint trans­fer on an auto­mo­bile surface

Paint is there­fore evi­dence con­sid­ered in mod­ern foren­sic lab­o­ra­to­ries. Dif­fer­ent chem­i­cal analy­sis pro­to­cols are fol­lowed in the analy­ses of this type of evi­dence. Many dif­fer­ent opin­ions are ren­dered con­cern­ing the sig­nif­i­cance of the ana­lyt­i­cal chem­i­cal data from this type of evi­dence.  In fact so many dif­fer­ent opin­ions can be found in the legal lit­er­a­ture con­cern­ing the sig­nif­i­cance of foren­sic paint evi­dence[3] that one might begin to ques­tion the real value of such evi­dence. The ques­tions arise not so much from a con­sid­er­a­tion of the pro­to­cols used but from the opin­ions rendered.

Cer­tainly foren­sic paint evi­dence is not all the same. Some paint spec­i­mens are sim­ply smears of paint on sur­faces while other paint spec­i­mens are multi-layered spec­i­mens with many lay­ers of paint of dif­fer­ent color and type.  One must keep this in mind when ques­tion­ing the cor­rect­ness of opin­ions ren­dered by foren­sic paint analysts.

This paper will deal with a sub­class of foren­sic paint analy­sis and the opin­ions that may be ren­dered based upon the data gleaned from analy­sis. We will explore the pos­si­ble over infer­ences of data that can occur as well as ques­tion the oblig­a­tions of the foren­sic sci­en­tist to report alter­na­tive expla­na­tions for the data acquired, expla­na­tions which may prove to be excul­pa­tory in nature. The sub­class of paint evi­dence con­sid­ered will be the single-layered paint sys­tem.  These sys­tems can be viewed as some­where between the one extreme of paint smears which, due to their lim­ited quan­ti­ties, are very dif­fi­cult to ana­lyze and the other extreme of multi-layered paint chips, which can have a great deal of infor­ma­tion sug­gest­ing unique­ness.  Single-layered paint sys­tems can appear in evi­dence which has been painted only once or where lay­ers of paint have not adhered to each other dur­ing impact and only one layer is avail­able for analysis.

Multi=layer paint chip

The ana­lyt­i­cal scheme that will be referred to here as an exam­ple is that which has been uti­lized for a num­ber of years in the foren­sic lab­o­ra­tory of the Fed­eral Bureau of Inves­ti­ga­tion[4] and fol­lowed some­what in other foren­sic lab­o­ra­to­ries[5]. The details of the pro­to­col are not so impor­tant here as the impli­ca­tions of the data itself.  The pur­pose of this paper is to give an under­stand­ing of those impli­ca­tions and pos­si­ble lim­i­ta­tions of the data.

The Sam­ple

Foren­sic sci­en­tists describe foren­sic evi­dence as class evi­dence and indi­vid­ual evi­dence.[6] The FBI’s Hand­book of Foren­sic Sci­ence describes indi­vid­ual evi­dence as “This evi­dence can be pos­i­tively iden­ti­fied as hav­ing come from a spe­cific source or per­son…” and class evi­dence as “This evi­dence, no mat­ter how thor­oughly exam­ined, can only be placed into a class. A def­i­nite iden­ti­fi­ca­tion as to its source can never be made since there is the pos­si­bil­ity of more than one source for the evi­dence found. (Exam­ples are: soil, blood, hairs, fibers, single-layered paint…)” Many foren­sic inves­ti­ga­tions result in a ten­sion between efforts to deter­mine the degree of unique­ness of items of class evi­dence and the lim­i­ta­tions of time, tech­nol­ogy and knowl­edge about the par­tic­u­lar type of mate­r­ial rep­re­sented by that class.  Foren­sic paint analy­sis is often in the cen­ter of this struggle.

Look around you.  Paint and coat­ing mate­ri­als are vir­tu­ally every­where you look.  To say that two items were coated with paint would not be very pro­ba­tive of their ori­gins.  To say that two items were coated with a par­tic­u­lar color of paint, gray paint for instance, that one could not dif­fer­en­ti­ate with the human eye under incan­des­cent illu­mi­na­tion, would be a bit more pro­ba­tive.  But then many things (includ­ing vir­tu­ally the whole U.S. Navy) are coated with gray paint.  There­fore one would not sig­nif­i­cantly nar­row the field of alter­na­tive expla­na­tions for sources of paints sim­ply by describ­ing paint as gray.  Triers-of-fact rec­og­nize that.  They deal with the prac­ti­cal side of rec­og­niz­ing paint every day and under­stand the lim­ited pro­ba­tive value of two objects being painted the same color. For instance a find­ing that white paint was on a pry­ing tool found in the pos­ses­sion of a defen­dant accused of break­ing into a white-painted house would not be remark­able.  There are many houses and objects painted white.  And so the foren­sic sci­en­tist tries to nar­row down the field.

Nar­row­ing Down the Field

One method of nar­row­ing down the field of sources of paint is to look at sur­face tex­ture of the paint par­ti­cles.  Scratches or sur­face blem­ishes which appear to be the same on two paint spec­i­mens are con­sis­tent with though not proof of the fact that paints could have orig­i­nated from the same source.  Of course if a paint spec­i­men which has bro­ken from a painted sub­strate can be refit­ted exactly into the pat­tern that par­ti­cle left when it was detached then a pos­i­tive iden­ti­fi­ca­tion of two paints as orig­i­nat­ing from the same source can be made.[7,8]

Another method of nar­row­ing the field of paints down is to sub­ject paint spec­i­mens to chem­i­cal spot tests.[9] Paint par­ti­cles react with var­i­ous sol­vents and chem­i­cals. Vis­i­ble man­i­fes­ta­tions of those reac­tions are observ­able under a micro­scope. Paint par­ti­cles that react dif­fer­ently to chem­i­cals can be rea­son­ably deter­mined to have not orig­i­nated from the same source.  How­ever two paint par­ti­cles that react in the same man­ner to chem­i­cals can only be said to have orig­i­nated from paint types that react in the same man­ner to those chem­i­cals.  With­out an under­stand­ing of the sig­nif­i­cance of reac­tions of paints to par­tic­u­lar chem­i­cals, one can not be sure even if paints that react the same are of the same type. Stoeck­lein sug­gests that a thor­ough under­stand­ing of paint chem­istry is nec­es­sary before one ren­ders opin­ions in this very com­plex field.[10]

The micro­scopic and chem­i­cal spot test work do not nar­row down the field of pos­si­ble sources of paint very far and can leave the ana­lyst with less than pro­ba­tive results at times when single­ lay­ered paint chips are ana­lyzed.  There­fore an attempt to fur­ther char­ac­ter­ize the unique­ness of paint spec­i­mens then enters into chem­i­cal instru­men­tal analysis.

Instru­men­tal Analysis

Mod­ern foren­sic chem­i­cal analy­sis of paint evi­dence depends very heav­ily on a num­ber of types of tech­nol­ogy to assist in iden­ti­fi­ca­tions of mate­ri­als. X-ray pow­der dif­frac­tom­e­try, x-ray flu­o­res­cence spec­troscopy, energy dis­per­sive x-ray analy­sis cou­pled with scan­ning elec­tron microscopy, Fourier trans­form infrared spec­trom­e­try and pyrolysis/gas chromatography/mass spec­trom­e­try are among the more pop­u­lar tech­nolo­gies in use today.[11] Stock­lein also rec­om­mends a num­ber of other instru­men­tal tech­niques that are not in wide use today in foren­sic paint analy­sis lab­o­ra­to­ries[12]. The x-ray pow­der dif­frac­tome­ter con­firmed with the energy dis­per­sive x-ray analy­sis or x-ray flu­o­res­cence can be used to iden­tify major crys­talline com­po­nents of paint matri­ces.  The Fourier trans­form infrared spec­trom­e­ter can be used to char­ac­ter­ize major organic com­po­nents of the paint matrix. And pyrolysis/gas chromatography/mass spec­trom­e­try can also be used to char­ac­ter­ize intact paint com­po­nents as well as decom­po­si­tion prod­ucts of paint matri­ces sub­jected to extremely high heats as part of the analy­sis scheme. The decom­po­si­tion prod­ucts hypo­thet­i­cally can be related back to the orig­i­nal com­po­nents but such hypothe­ses must be tested and validated.

There are known lim­i­ta­tions to each of these instru­men­tal tech­niques. For instance, all these ana­lyt­i­cal tech­niques have min­i­mum detectable lim­its.[13] If com­po­nents placed in paints are of such a small quan­tity that one can not detect them then one can not rea­son­ably say whether they are present, whether they dif­fer between sam­ples, or even whether they effect the ana­lyt­i­cal data. This sit­u­a­tion might at first be addressed with an argu­ment that, if com­po­nents are in such small mass quan­ti­ties that they can not be detected, they are not impor­tant in dif­fer­en­ti­at­ing paint sam­ples. How­ever that argu­ment flies in the face of the real­ity of the eco­nom­ics of man­u­fac­tur­ing com­mer­cial prod­ucts. No man­u­fac­turer will put com­po­nents into a prod­uct that cost money with­out rea­son.  Even minor com­po­nents in terms of mass cost money to place in prod­ucts.  There­fore such com­po­nents are impor­tant whether we can detect them or not.  Again, if we can not detect them, we do not know if they are dif­fer­ent in dif­fer­ent spec­i­mens and there­fore we can not nar­row our paint sources beyond that level.

Another com­pli­ca­tion is in the use of pyrolysis/gc/ms. This analy­sis tech­nique ana­lyzes pyrolyzates, not unpy­rolyzed mate­ri­als. Paint sam­ples are lit­er­ally burned (pyrolyzed) in a tiny vile and the gases from the burned mate­r­ial, pyrolyzates, are ana­lyzed. Though one can hypoth­e­size from the mate­ri­als which are left after the pyrol­y­sis what the orig­i­nal mate­r­ial was, val­i­da­tion of such hypothe­ses are nec­es­sary.  Because even as far back as 1982 we find Thorn­ton not­ing that “the paint indus­try is one of the most com­plex seg­ments of the total chem­i­cal indus­try, uti­liz­ing over 600 dif­fer­ent kinds of raw mate­ri­als and inter­me­di­ates[14], and because paint for­mu­las are being changed so quickly to keep up with envi­ron­men­tal reg­u­la­tions[15] val­i­da­tions of such hypothe­ses can be very time con­sum­ing and expensive.

A third com­pli­ca­tion arises in the use of the Fourier trans­form infrared spec­trom­e­ter. This tech­nol­ogy actu­ally char­ac­ter­izes groups of chem­i­cal struc­tures which are found in these com­plex matri­ces.  From the data derived from a pure mate­r­ial one may hypoth­e­size and be some­what sure of val­i­dat­ing a hypoth­e­sis that a par­tic­u­lar mate­r­ial is present. How­ever unless one is very skilled in the use of this tech­nique, putting all the chem­i­cal groups or parts of mol­e­cules together in the cor­rect man­ner can be dif­fi­cult, espe­cially when there are many mate­ri­als com­bined in one com­plex matrix.  One can eas­ily mis­in­ter­pret the data from this tech­nique unless one has a solid foun­da­tion in mol­e­c­u­lar spectroscopy.

FTIR spec­tra of an epoxy and an acrylic paint illus­trate dif­fer­ences which allow identification

The Con­se­quences

The fact that one can not nar­row down the size of the pop­u­la­tion of alter­na­tive sources beyond a par­tic­u­lar level can be viewed to be excul­pa­tory to defen­dants in courts of law. Rea­son­able alter­na­tive expla­na­tions for data which do not point toward guilt could be used to prove defen­dants inno­cent.  What oblig­a­tion then do foren­sic sci­en­tists have to explain fully the inabil­ity of their analy­sis pro­to­cols to nar­row down to unique sources their paint spec­i­mens? We can be sure that this oblig­a­tion is addressed by Giglio and prog­eny[16]. One could rea­son­ably expect that alter­na­tive expla­na­tions for data from paint analy­sis would be an expected part of any expert opin­ion because it is vir­tu­ally impos­si­ble to source-specify paint beyond a cer­tain point.  The breadth of the spread of alter­na­tive sources of paint could be viewed in some mat­ters as excul­pa­tory information.

The Exper­i­ment

With such con­sid­er­a­tions as described above in mind, the authors attempted a blind analy­sis of a known paint stan­dard and an inter­pre­ta­tion of the data from those analyses.

The paint was pur­chased in Octo­ber 1996 from Davis Frost, Inc.[17] for actual use in paint­ing a part of a build­ing. The paint was labelled “I-47 Bat­tle­ship Gray.”  The authors did not know the chem­i­cal com­po­si­tion of the paint when the can was pur­chased.  A few weeks after the paint was con­sumed, dry paint film on the inner walls of the paint can was removed for analysis.

The paint was ini­tially micro­scop­i­cally observed under an incan­des­cent light source. Then chem­i­cal spot tests were con­ducted. Nei­ther of these analy­ses, of course, deter­mined what the chem­i­cal com­po­si­tion of the paint was.  These analy­ses deter­mined that the paint was gray, that it was not a nitrocellulose-based paint and that it was com­posed in part of a cross-linked binder (a binder that would not dis­solve in the sol­vents applied to it.) The sub­se­quent instru­men­tal analy­sis included energy dis­per­sive x-ray analy­sis cou­pled with scan­ning elec­tron microscopy, x-ray pow­der dif­frac­tom­e­try, Fourier trans­form infrared spec­trom­e­try and pyrolysis\gas chromatography\mass spec­trom­e­try. The data was inter­preted by the authors and ana­lysts who pro­vided the data.  The inter­pre­ta­tion of the data indi­cated the following:

The ele­men­tal analy­sis con­ducted with energy dis­per­sive x-ray analy­sis in con­junc­tion with scan­ning elec­tron microscopy indi­cated the pres­ence of alu­minum, sil­i­con, zir­co­nium, molyb­de­num or sul­fur, tita­nium, cal­cium and iron.  The x-ray pow­der dif­frac­tion data was con­sis­tent with the pres­ence of tita­nium diox­ide, and pos­si­bly iron oxide.  The Fourier trans­form infrared (FTIR) analy­sis data was con­sis­tent with the pres­ence of an alkyd binder (pos­si­bly a medium oil alkyd), tita­nium diox­ide mainly in the form of rutile, and fer­ric oxide.  The FTIR could not deter­mine dri­ers and minor com­po­nents if any existed. The pyrolysis/gas chromatography/mass spec­trom­e­try data (Py/GC/MS) data was con­sis­tent with the pres­ence of an alkyd binder.

Essen­tially then what we know from these analy­ses is that the paint was a gray alkyd-based paint which con­tained tita­nium diox­ide and iron oxide pig­ments.  We do not under­stand the pres­ence of zir­co­nium, alu­minum, sil­i­con, or cal­cium which was detected by the energy dis­per­sive x-ray analy­sis but was not iden­ti­fied by the x-ray pow­der dif­frac­tome­ter. The data then nar­rows this gray paint down to an alkyd-type paint with tita­nium diox­ide pig­ment (both types of tita­nium diox­ide, rutile and anatase, are present) and iron oxide pig­ment.  We must ask how many gal­lons of such paint are man­u­fac­tured which fit this descrip­tion in order to under­stand the pro­ba­tive value of this evi­dence. Fol­low­ing the analy­sis and inter­pre­ta­tion of the data the man­u­fac­turer of the paint [18] pro­vided a list of the com­po­nents that she com­bined to form the prod­uct. That list con­tained the fol­low­ing com­po­nents as well as rough per­cent­ages of the com­po­nents present:

The reader can already see that the foren­sic analy­sis did not detect all of the com­po­nents present in the paint sam­ple but only major components.

The man­u­fac­turer also pro­vided the Mate­r­ial Safety Data Sheets (MSDS) for the com­po­nents and sam­ples of the mate­ri­als that her com­pany com­bined to make the paint.  The MSDS data lists those com­po­nents of mate­ri­als that might cre­ate a safety haz­ard for per­son­nel han­dling the mate­ri­als.  There­fore all com­po­nents of such mate­ri­als are not nec­es­sar­ily listed.  How­ever it is instruc­tive to list here the mate­ri­als which were indi­cated on the MSDS documentation:

As one can see, the MSDS sheets indi­cate the pres­ence of at least 38 chem­i­cals in the orig­i­nal paint for­mula of which foren­sic analy­sis “iden­ti­fied” only about four or five. The reader should under­stand that many of the com­po­nents listed in the MSDS sheets are volatile and evap­o­rate once the paint is applied.  There­fore these mate­ri­als would not be detected dur­ing analy­sis of a dried paint film.  How­ever this com­pli­cates the process even fur­ther.  If one does not know what volatile mate­ri­als were used in the orig­i­nal paint for­mula and can not deter­mine this due to their absence, then one can not fur­ther nar­row down the list of pos­si­ble sources of wet paint sim­ply from an analy­sis of dried paint film.

One can quickly see that the foren­sic analy­sis pro­to­col that was fol­lowed did not deter­mine the chem­i­cal com­po­si­tion of the paint specimen.

It is also very impor­tant to under­stand that even if one could deter­mine the qual­i­ta­tive chem­i­cal com­po­si­tion of these com­plex chem­i­cal matri­ces, with­out a deter­mi­na­tion of the quan­ti­ta­tive chem­i­cal com­po­si­tion, one could still not say that paints were chem­i­cally iden­ti­cal.  These issues are very impor­tant when one hears a foren­sic paint exam­iner opine that paints ana­lyzed had iden­ti­cal com­po­si­tions or were “alike in chem­i­cal composition.”

One could only know that to be true if one of three con­di­tions applied:

1.) The quan­ti­ta­tive and qual­i­ta­tive chem­i­cal analy­ses were pos­si­ble and were con­ducted and data was derived and pre­sented which indi­cated the paints were iden­ti­cal. Lower lim­its of detec­tion for ana­lyt­i­cal equip­ment might very well stand in the way of estab­lish­ing this data.

2.) Paints of chem­i­cal com­po­si­tion known to be the same as the unknown spec­i­mens were ana­lyzed and the data from the analy­sis of the known was con­sis­tent with the data from the unknowns.  But then the unknowns are not known so how could one test paints of chem­i­cal com­po­si­tion known to be the same as the unknown specimens?

3.) The paints had a unique chem­i­cal marker in them which was only placed in that par­tic­u­lar batch of paint and would def­i­nitely indi­cate that the paints were the same and there­fore had the same chem­i­cal composition.

Sum­mary

Foren­sic paint ana­lysts who opine in reports and courts of law that chem­i­cal com­po­si­tions of paint spec­i­mens or any other com­plex chem­i­cal mix­tures are iden­ti­cal should be closely ques­tioned about their inter­pre­ta­tion of their data.  There are lim­i­ta­tions to tech­nol­ogy, as well as time and expense lim­i­ta­tions which dic­tate that foren­sic ana­lysts might not be able to estab­lish these iden­ti­ties as eas­ily as some may think.  There is a huge dif­fer­ence between say­ing that no dif­fer­ences were found between paint sam­ples as a result of foren­sic chem­i­cal tests and say­ing that there were no dif­fer­ences, that paints sam­ples were iden­ti­cal. In the first state­ment, that no dif­fer­ences were found, one is left with the very real fact that the ana­lyst may not know if there were chem­i­cal dif­fer­ences or not if the tech­nol­ogy used did not detect all the com­po­nents present. By cor­rectly say­ing that no dif­fer­ences were found as opposed to say­ing that there were no dif­fer­ences, the expert could very well open the door to valu­able exam­i­na­tion.  That exam­i­na­tion could allow coun­sel to elicit the fact the paint ana­lyst does not know if two paint sam­ples are dif­fer­ent or not. That could be very impor­tant excul­pa­tory infor­ma­tion. The sec­ond opin­ion closes that door, very pos­si­bly, inappropriately.

___________________

[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.

[2] Pres­i­dent, Con­sol­i­dated Research, Inc. Kings­ford, MI, B.S. Chem­istry & Biol­ogy, 1964, Mundelein Col­lege, MS, Chem­istry, Iowa State Univ., 1967, Ph.D. Chem­istry, Iowa State Univ., 1969. (906) 779‑9498.

[3] A West­Law com­puter data base analy­sis of 1966 to 1995 fed­eral and state cases which con­tained the words “foren­sic” and “paint” within the same para­graph noted a spec­trum of reported opin­ions con­cern­ing the sig­nif­i­cance of foren­sic paint analy­sis data. The opin­ions described the level of cer­tainty of paint sam­ple matches as vary­ing from a “cor­re­spon­dence” between paint sam­ples to opin­ions that sam­ples orig­i­nated from the same man­u­fac­turer and batch of paint, up to paint sam­ples being chem­i­cally “iden­ti­cal” to each other.

[4] Dr. White­hurst was taught this ana­lyt­i­cal scheme as a foren­sic paint analy­sis trainee in the FBI Lab­o­ra­tory in 1994 through 1996.

[5] S.G. Ryland & R.J. Kopec, The Evi­den­tial Value of Auto­mo­bile Paint Chips, 24 J. Forens. Sci. 140 (1979).

[6] Fed­eral Bureau of Inves­ti­ga­tion, U.S. Depart­ment of Jus­tice, Hand­book of Foren­sic Sci­ence, 1984.

[7] Fed­eral Bureau of Inves­ti­ga­tion, U.S. Depart­ment of Jus­tice, Paint Exam­i­na­tion Tech­niques Uti­lized in the FBI Lab­o­ra­tory, 2,1980.

[8] John I. Thorn­ton, D. Crim., Foren­sic Paint Exam­i­na­tion, FORENSIC SCIENCE HANDBOOK 529 547 (1982).

[9] Id. at 550.

[10] W. Stoeck­lein, Paints, var­nishes and lac­quers, THE ENCYCLOPEDIA OF ANALYTICAL SCIENCE (Aca­d­e­mic Press Ltd. 1995).

[11] Amer­i­can Soci­ety of Test­ing and Mate­ri­als, Stan­dard Guide for Foren­sic Paint Analy­sis and Com­par­i­son, 1993.

[12] Supra note 10. 7

[13] Roy-Keith Smith, Hand­book of Envi­ron­men­tal Analy­sis, 89–91(Genium Pub­lish­ing Cor­po­ra­tion, 1994).

[14] Supra note 8, at 1.

[15] Marc. S. Reisch, Paints and Coat­ings, CHEMICAL & ENGINEERING NEWS, Sep­tem­ber 25, 1995, at 30.

[16] Giglio v. U.S., 405 U.S. 150 (1972) spells out the oblig­a­tion of the pros­e­cu­tor to know of evi­dence in the pos­ses­sion of the pros­e­cu­tion or mem­bers of the pros­e­cu­tion team. Excul­pa­tory infor­ma­tion with­held by foren­sic sci­en­tists would be in vio­la­tion of Giglio.

[17] Davis Frost, Inc., 3416 Candler’s Moun­tain Rd. Lynch­burg, Vir­ginia, 24502. (804) 846‑5277.

[18] Denise Hen­ning, Vice Pres­i­dent, Research and Devel­op­ment, Davis Frost Inc..

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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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Quality Control in GC-FID: Teaching the machine right from wrong

On February 7, 2012, in Analysis, Chemistry, Equipment, Ethics, Identification, In The Courtroom, Laboratory Procedure, Metrology, Standards, by Justin J. McShane

It is shock­ing but very true state­ment that most sophis­ti­cated instru­ments such as a Gas Chro­mato­graph (GC) with var­i­ous detec­tors whether it is a mass spec­trom­e­ter (MS) or flame ion­iza­tion detec­tor (FID) when pro­duced and man­u­fac­tured are inca­pable of pro­duc­ing mean­ing­ful results “straight out of the box.” These machines have to be “taught” what it is look­ing for and how much there is. Inher­ently and orig­i­nally they “know” noth­ing. They have to be taught what it is ana­lyz­ing and also taught how much there is. This method of teach­ing is gen­er­ally referred to as Qual­ity Con­trol (QC). This series of teach­ing when it comes to GC-FID is really a process of teach­ing the machine what it is look­ing for (the tar­get ana­lyte which, for exam­ple, in GC-FID for EtOH deter­mi­na­tion for pur­poses of Blood Alco­hol Con­tent is ethanol oth­er­wise known as EtOH) and then once it has iso­lated (hope­fully) the tar­get ana­lyte, it then has to be taught to mea­sure how much there is. This process of teach­ing it what it is look­ing for in the case of GC-FID is really a process of teach­ing it what is not the tar­get analyte.

The eas­i­est way of think­ing about this process from a global per­spec­tive is to think about colors.

When we are born we do not know our col­ors. This is some­thing that needs to be taught. Just like all things in life, our teacher is vitally impor­tant. Every time we are asked “What color is this?,” in real­ity that “this” that is shown to us is an unknown that we are asked to ana­lyze. We know what red is because we were taught through some sort of process that the hue that our eyes detect (our eyes are a detec­tor just like a FID or MS) is this “red” and there­fore from that point on we use this “red” that we were taught to become our stan­dard against which all future unknowns are com­pared to see if it is “red.” We fur­ther “know” that some­thing is “red” because it is not “yel­low,” “orange,” “blue” or “vio­let.” The more col­ors we learn, the stronger our con­fi­dence in the con­clu­sion that “red” is “red” and not some­thing else.

But what if our teacher, taught us “red” wrong when we were lit­tle? Let’s say that our teacher taught us what we believe is “red,” based upon show­ing us what is objec­tively in real­ity green (the com­ple­men­tary or oppo­site color of “red”). Then, we would learn incor­rectly or wrongly that what is objec­tively and in real­ity is green is in fact “red.” All of this results in the cir­cum­stance of when we are pro­duced an unknown and asked “what is this?” and this “this” (which is our unknown hue that we are asked to iden­tify) is objec­tively and in real­ity green but is hon­estly but mis­tak­enly inter­preted as “red” and reported out with con­fi­dence as “red” because we were taught incor­rectly and wrong. When we do so (incor­rectly but hon­estly report the green as “red”), we are not lying or inten­tion­ally deceiv­ing the per­son who is ask­ing us, we are just taught incor­rectly and wrongly. So the moral of the color exam­ple is if we are taught the wrong way, then the result we report will be wrong.

Well, a GC is not any dif­fer­ent. If you teach the machine wrong, it will report the wrong result. The machine does not inher­ently know any­more what any­thing is qual­i­ta­tively than an infant does who is being taught his/her colors.

The goal of all ana­lyt­i­cal chem­istry is to pro­duce a valid result. A valid result is really com­prised of two sep­a­rate, dis­tinct and impor­tant aspects: to pro­duce a spe­cific qual­i­ta­tive result and to pro­duce as close as pos­si­ble to a true quan­ti­ta­tive result as can be pro­duced, mean­ing it is as free from cal­i­bra­tion and bias related error as possible.

We cov­ered the con­cept of Qual­ity Con­trol (QC) before, but let’s do so in more detail with this post. QC is strictly speak­ing a process that is used to try to insure valid­ity of the results. QC is the pro­ce­dure or the method used to demon­strate that the machine has achieved the two chro­mato­graphic commandments.

The 2 commandments of chromatography
The 2 com­mand­ments of chromatography

This nec­es­sary act of QC is best pre­formed by a series of tests that (1) proves through ver­i­fi­able data the qual­i­ta­tive strength of the test­ing régime, and (2) the quan­ti­ta­tive sen­si­tiv­ity of the method. As there are no uni­ver­sal nomen­cla­ture for foren­sic chro­matog­ra­phy, this qual­i­ta­tive test­ing régime should be com­prised at a min­i­mum the following:

  1. A vial is pre­pared which pur­pose­fully con­tains sev­eral dif­fer­ent com­pounds. This addi­tion is called spik­ing (adding) the com­pounds into the vial. The vial is then sam­pled and injected into the instru­ment to see what pro­duces. If the method is a valid method, then the pur­pose­fully spiked com­pounds must be shown to have com­plete chro­mato­graphic sep­a­ra­tion in the resul­tant chro­matogram. Oth­er­wise, com­mand­ment num­ber one (thou shall sep­a­rate) has not been sat­is­fied. The prover­bial Achilles heel of any ana­lyt­i­cal chem­istry method is in this step. It is a test of speci­ficity. In the case of GC-FID, some crime lab­o­ra­to­ries skip this step alto­gether and oth­ers use only a sin­gle col­umn analy­sis and only prove sep­a­ra­tion between 4 or 5 ana­lytes. Four or five ana­lytes is a foren­si­cally inde­fen­si­ble amount in the con­text of test­ing EtOH in human blood. Lab­o­ra­to­ries have dif­fer­ent nam­ing schemes for this proof of res­o­lu­tion. Some lab­o­ra­to­ries call it a volatile mix, sep­a­ra­tion matrix, sep­a­ra­tion con­trol, res­o­lu­tion mix, res­o­lu­tion con­trol, or res­o­lu­tion matrix.
  2. A series of blanks must be used. Blanks are an essen­tial com­po­nent of QC. There are dif­fer­ent types of blanks. There are true blanks, inter­nal stan­dard blanks, and tar­get ana­lyte blanks. There are two essen­tial pur­poses of blanks. First is to prove the reten­tion time of a given ana­lyte to serve as a stan­dard and serves an essen­tial part of this teach­ing process. The sec­ond rea­son, is to demon­strate that there is no carry-over. Carry-over is a form of con­t­a­m­i­na­tion where the con­di­tions of one injec­tion car­ries over to another. It is con­trib­u­tory error that leads to an invalid result. (For more on the carry-over effect, see gen­er­ally: The Car­ry­over Effect: Lack of Blanks between tests leads to false pos­i­tive or inflated BAC results, Car­ry­over effect part Deux: Autodi­lu­tion may be part of the prob­lem for false blood results in DUI and Car­ry­over effect part 3: Flush­ing of inert gas is not enough to prove there is no carryover)
  • A true blank is a sam­ple in a vial that is designed to have noth­ing mean­ing it is one in which there are no detectable ana­lytes. If the method is valid and the prepa­ra­tion of the sam­ple is per­fect and accord­ing to design, then the result­ing chro­matogram is sup­posed to be just the base­line sig­nal with noth­ing else. If there is any sub­stances detected at all, then the true blank is invalid.
  • An inter­nal stan­dard blank is a sam­ple in a vial that is designed to have only the inter­nal stan­dard (usu­ally n-propanol) mean­ing it is one in which there is only one detectable ana­lyte. The result­ing chro­matogram is sup­posed to fea­ture one peak at a reten­tion time that is char­ac­ter­is­tic to the inter­nal stan­dard accord­ing to the method and the chro­mato­graphic con­di­tions. If the method is valid and the prepa­ra­tion of the sam­ple is per­fect and accord­ing to design, then the result­ing chro­matogram is sup­posed to be just the base­line sig­nal with one peak and noth­ing else. If there is any other sub­stances detected at all, then the inter­nal stan­dard blank is invalid.
  • A tar­get ana­lyte blank is one in which there is only one detectable ana­lyte. The result­ing chro­matogram is sup­posed to fea­ture one peak at a reten­tion time that is char­ac­ter­is­tic to the true tar­get ana­lyte (in the case of GC-FID for EtOH deter­mi­na­tion this would be EtOH oth­er­wise known as ethanol) accord­ing to the method and the chro­mato­graphic con­di­tions. If the method is valid and the prepa­ra­tion of the sam­ple is per­fect and accord­ing to design, then the result­ing chro­matogram is sup­posed to be just the base­line sig­nal with one peak and noth­ing else. If there is any other sub­stances detected at all, then the tar­get ana­lyte blank is invalid.

The sec­ond part of QC is the proper con­struc­tion of  the cal­i­bra­tion curve that our knowns are tested and then an unknowns are tested against. This is the teach­ing com­po­nent of the quan­ti­ta­tive mea­sure­ment. This is typ­i­cally per­formed in the begin­ning of the run. If not, then there are legit­i­mate issues about the valid­ity of the quan­ti­ta­tion. See gen­er­ally, Is it legit­i­mate for a crime lab­o­ra­tory to use ‘his­tor­i­cal data’ to prove its test results are valid? For infor­ma­tion gen­er­ally about cal­i­bra­tion and cal­i­bra­tion curves, I offer to you the fol­low­ing posts: When is a straight line a curve: Cal­i­bra­tion curve and Why do instru­ments need to be cal­i­brated? The only metro­log­i­cally accept­able method for estab­lish­ing the cal­i­bra­tion of any device is to employ the 5x5 and 120% method. The 5x5 and 120% method is to test at least five dif­fer­ent con­cen­tra­tions five times each time at those spe­cific con­cen­tra­tion points along a wide lin­ear dynamic range that sets as low as pos­si­ble limit of quan­tifi­ca­tion based upon a legit­i­mate val­i­da­tion stud­ies and a last cal­i­bra­tor that is 120% of the high­est expected value in the unknown sam­ples that will be tested.

The most impor­tant aspect of all of QC is that the mate­ri­als that are used for it must be derived and orig­i­nate from cer­ti­fied ref­er­ence mate­ri­als (CRMs) or United States Phar­ma­copeia (USP) grade or Amer­i­can Chem­i­cal Soci­ety (ACS) grade raw mate­ri­als. (See gen­er­ally our posts on the def­i­n­i­tions of CRMs and USP grade cal­i­bra­tors, stan­dards and con­trols: Stan­dards, Con­trols, Cal­i­bra­tors, and Ver­i­fiers, Oh my…) Even if pur­chased from rep­utable third party ven­dors such as the NIST SRM line of third party prod­ucts, these mate­ri­als when pur­chased or made must be ver­i­fied before they are placed into the QC process in the test­ing of unknowns.

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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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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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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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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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