Convictions tied to controversial gun-residue test
Prosecutor's office counts several cases over 5 years; Defenders seek further reviewBy Julie Bykowicz
March 27, 2005
The Baltimore state's attorney's office said last week that it has found about half a dozen convictions in cases that may have involved the controversial identification of gunshot residue evidence.
The preliminary review of shooting and weapons cases from the past five years came after a Circuit Court judge decided last month to exclude a two-element particle of gunshot residue evidence from a trial. He said a particle containing three elements -- lead, barium and antimony -- is required to meet the scientific community's threshold for establishing that a substance is gunshot residue.
Prosecutors insist that no one has been wrongly convicted. But defense attorneys say that enough questions have been raised to demand further review.
"We've said all along that the judge's ruling would not affect many, if any, cases, and our review proves that," said Margaret T. Burns, spokeswoman for the state's attorney's office. She said the assessment was preliminary and that prosecutors were still analyzing the findings. Burns also said it was too soon to tell how big of a role the disputed gunshot residue evidence played in the convictions.
Burns said gunshot evidence is used sparingly in the 10,000 felony cases prosecutors handle each year -- and that it is never presented to a jury without other corroborating evidence.
Defense attorneys said the prosecutors' review points to the ripple effect of evidence that some view as flawed. Of about 100 gunshot residue tests over the past five years that were deemed positive based on two-element particles, about 70 became part of criminal cases -- though often the suspected residue was collected from a person who ended up as a witness.
This could be problematic, the defense attorneys said, because some witnesses could originally have been co-defendants who agreed to cooperate with prosecutors only after learning that their hands tested positive for gunshot residue. On the flip side, prosecutors might have kept gunshot residue-positive witnesses from testifying, fearing credibility problems.
"The important point is that we're talking about bad science," said Patrick Kent, chief of the public defender's forensic division, which is examining gunshot residue evidence. "Unreliable evidence is unreliable evidence, and it has an impact on the criminal justice system that is simply unacceptable."
Burns said prosecutors see the issue differently.
"It appears that the forensic dream team is grasping at straws to prove a point," she said in a statement. "They have hit a dead end on their original theory that there were 'staggering' numbers of cases where this is an issue.
Gunshot residue is made up of tiny particles composed primarily of lead, barium, antimony and fusions of those three elements. It has been used for decades in courts across the country. But the Baltimore Police Department's collection and analysis of gunshot residue is being closely scrutinized by Kent and other public defenders who say the police crime laboratory has a pattern of problems with contamination.
More recently, the public defenders said, they have discovered that the lab uses what they believe to be too low of a standard for determining what it identifies as gunshot residue. Although many police departments define gunshot residue as particles with three elements, Baltimore says that some two-element particles can conclusively be called gunshot residue.
At a hearing last month, Baltimore Circuit Judge John C. Themelis agreed with the defense contention that only particles containing a fusion of lead, barium and antimony can conclusively be called gunshot residue. Themelis did not allow the jury to hear about a two-element particle that crime lab analyst Joseph Harant labeled gunshot residue. Police spokesman Matt Jablow has said the department "respectfully and vigorously" disagrees with Themelis.
The American Society for Testing and Materials considers some two-element particles to be gunshot residue, and the Maryland State Police also use that standard, Jablow said. However, the FBI and many police crime labs consider only three-element particles to be uniquely gunshot residue.
A media request after Themelis' Feb. 22 ruling prompted the state's attorney's office to research how often prosecutors have presented two-element particles as gunshot residue evidence, Burns said.
The prosecutors' office looked at test results from 2000 to present -- the same time period that public defenders are using in their search for two-element cases that they said could have resulted in wrongful convictions.
Public defenders announced this month that of the 600 or so laboratory reports they had reviewed, they'd found about 100 gunshot residue tests with positive findings based on two-element particles.
Public defenders chose to begin in 2000 based on testimony from Harant, the city's only gunshot residue analyst. He testified in April that he had attended a conference in April 2000 at which he learned that "the scientific or gunshot residue analyst community changed the definition" of gunshot residue to be only three-element particles.
Harant testified differently before Themelis last month, saying that he still considers some two-element particles to be conclusively gunshot residue. Themelis said the seemingly contradictory testimony was "disturbing."
Kent said public defenders would examine hundreds of pre-2000 gunshot residue tests to see whether any positive conclusions were based on two-element particles. Some defense attorneys also said that Harant should no longer be qualified to testify, although he has done so at least three times since Themelis' ruling in February.
As the public defenders conduct their review, they and other defense attorneys are engaging in a case-by-case attack on gunshot residue evidence:
Campbell's attorney, Catherine Flynn, said her case became stronger when Harant was not permitted to testify about his conclusion. Campbell, who was accused of shooting at a city police officer, was acquitted of attempted first-degree murder and all other charges related to the firing of a weapon.
Kent said these individual cases should be viewed as evidence of a systemic problem within the Police Department's crime lab. He said his office sent a letter last week to Jessamy, urging her to meet with the public defenders. Burns said Jessamy received the letter and will meet with them soon.
"Both of us have pieces of information, and I think we can get an accurate picture of what's going on only if we sit down together and talk," Kent said. "This should be a concern for the entire legal community -- not just public defenders."