National Law Journal

Defense Counsel View Report as New Weapon
Tresa Baldas
05-11-2009

For decades, police have been putting away criminals by matching bullets to guns, bite marks to teeth or fingerprints to suspected killers' hands. And for decades, defense lawyers have argued that such forensic evidence is unreliable.

Now the defense side has a new weapon in its arsenal when it seeks to discredit forensic testimony or fight to overturn convictions that were based on such evidence.

They're using a February report by the National Academy of Sciences (NAS) that concluded that, with the exception of DNA, a number of forensic techniques are unreliable and insufficiently scientific to produce consistent and reliable results. The report cites flawed techniques in fingerprinting, hair and bite-mark analysis, and firearms identification. The report, for instance, found that markings on bullets and shell casings are not unique, which means that one can't prove — beyond a reasonable doubt — that a bullet came from particular gun.

"What a dramatic development this is. This shakes all of forensic science down to its core," said criminal defense attorney Brian Zubel, a solo practitioner in Holly, Mich., who is citing the report in a handful of post-conviction motions, alleging that invalid firearms testimony contributed to wrongful convictions.

Other defense lawyers as well are already using the findings in post-conviction motions, appeals and pending trials. The NAS report was cited in New York's high-profile murder trial of Darryl Littlejohn, the Manhattan bouncer charged with murdering a John Jay College student who was killed after a night on the town. Littlejohn's lawyer cited the NAS report in an effort to preclude the admission of hair and fiber evidence, as well as cell tower data, from the trial, stating in court documents: "This report shows that many forensic techniques, which are relied on in courtrooms everyday, lack scientific support."

It remains to be seen, however, whether the report will have an impact on judges. In the Littlejohn case, the judge ruled on April 30 to allow the evidence. And prosecutors are attacking defense efforts to use the report, saying the report is being used to keep legitimate evidence out of the courtroom. "The idea that we shouldn't allow any ballistics evidence in front of the jury — we think this is absurd," said Joshua Marquis, the district attorney in Clatsop County, Ore., who sits on the board of directors for the National District Attorneys Association (NDAA). "The science of this has been tested over and over and over again. The problems are not with the science, but with the people who apply it."

'THE SCIENCE DOES NOT SUPPORT THAT'

Because of the report, Zubel said, "it has come to light that, for a generation, firearms examiners have been going into court and claiming to be able to make fingerprint-style identifications between bullets and guns. The problem with that is: The science does not support that. The conclusion from the National Academy of Sciences is that it's impossible. You can't do that."

That's what criminal defense lawyer Richard Rosenbaum of the Fort Lauderdale office of Chicago's Arnstein & Lehr has been arguing for years, "but not with anything to back me up." He, too, is using the NAS report in two post-conviction filings, including a case involving Charlie Gibbs, a man who alleges that prosecutors never proved what gun was actually used in a homicide but convicted him anyway using faulty ballistics evidence. "It's going to be used a whole lot more," Rosenbaum said of the report.

Bradford Kessler, a solo criminal defense lawyer in St. Louis, also plans to cite the NAS report as he plans his appeal for Lance Shockley, who was convicted in March of first-degree murder for killing a Missouri State Highway Patrol trooper. Kessler argues that the prosecution relied heavily on faulty ballistics evidence to convict. He said that there was no weapon to test and that two weapons experts couldn't agree at trial as to whether the bullet came from a specific weapon.

But Kessler isn't optimistic that the report will carry any weight. He fears "it will make absolutely no difference."

"I'll have it, and then it won't be admissible," said Kessler, who believes that judges will dismiss the report. "They'll just say, 'that's their opinion.' "

Lets hope so, said Marquis of the NDAA. "There's a wholesale attack on forensic sciences by the defense bar," said Marquis, who believes that defense lawyers are trying to use the report to keep legitimate evidence out of the courtroom.

Marquis also argued that ballistics evidence is corroborative evidence, not the entire basis of a case. "I've prosecuted hundreds of trials, and I have never tried a case where my entire case hinged on whether or not a jury believed a fingerprinting or shell casing was right," Marquis said. "The spin that's being put on the NAS study is causing grave concern among America's prosecutors."

James P. Fox, the district attorney in San Mateo, Calif., and chairman of the NDAA, echoed similar concerns, saying that defense lawyers "basically want to take away what has been a very effective tool.

"Ballistics still proves a very valuable tool in arriving at truth," Fox said. "There are individual characteristics with the weapons themselves that will place a unique identifying mark on the bullet that can identify which weapon fired that bullet."

ULTIMATELY UP TO JUDGES

Fox noted that it will be up to judges to decide the validity of the NAS report and whether it offers grounds for excluding testimony. Historically, he said, courts have typically favored letting ballistics evidence in, even when judges question its validity.

In 2008, in U.S. v. Glynn , a federal judge in New York held that ballistics identification analysis cannot be called science. Judge Jed S. Rakoff found that "ballistics examination not only lacks the rigor of science but suffers from greater uncertainty than many other kinds of forensic evidence." Still, however, he allowed the firearms examiners to testify but held that their "ballistics opinions may be stated in terms of 'more likely than not,' but nothing more."

Prosecutors noted that the NAS report did not make any recommendations as to whether ballistics evidence should be admissible. It merely made observations and suggestions.

That's precisely what Congress asked the NAS to do when it commissioned the report in 2005, said New York attorney Marvin Schechter, one of several legal experts who worked on the report for two years. "The charge was to study the forensic needs of the nation and to set forth any problems and identify those and make recommendations," Schechter said. "It wasn't ours to decide questions of admissibility. That's best left to the courts."

As for the panel's message on the reliability of ballistics evidence, he said, "All we can say is: Based upon everything we've studied, everything we've looked at, this does not give us scientific reliability....It will be up to the attorneys on both sides of the fence to battle it out over the next couple of years."

Tresa Baldas can be contacted at tresa.baldas@incisivemedia.com.


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