Zimmerman: The defense must retain its own experts

May 5, 2013

Sunday, May 5, 2013

Good morning:

Amsterdam1234 provided the inspiration for this post with this comment:

@xena

About the contents of Trayvon’s phone. I listened very carefully to what was requested by the defense, and how the state responded to the requests concerning data on Trayvon’s phone.

The state gave defense 2 reports that listed some information found on Trayvon’s phone. They also gave all the raw data they were able to retrieve, to the defense.

During the hearing West was whining about not being able to read the data without special software. That defense team is an embarrasment. It is very obvious they haven’t hired a forensic digital data expert yet, and they are hoping to find out what was on that phone through the state’s forensic analysis of the data.

Bernie said “we’ve given them the data in the format they requested it, they can hire their own expert to analyze it.

Maybe one of you legal minds can explain what is work product and what is discovery that needs to be given to the defense.

For the following reasons, I believe the defense is committing malpractice by not employing its own team of experts to review all of the raw data and bench notes generated by the State’s experts.

The defense asked the State to turn over the raw data generated by all of the State’s experts and I believe the State has complied with that request.

This was an appropriate request that I would have made.

I specialized in forensics and I was more interested in the raw data and bench notes rather than an expert’s opinion, or interpretation of the raw data, because I was used to seeing interpretations that conflicted with or were not supported by the raw data and bench notes. If the lawyer does not have the raw data and bench notes to compare to the expert’s report, the lawyer has no way of evaluating the accuracy of an expert’s conclusions.

Literally, an expert’s report is worthless without the raw data and bench notes to support it.

Since the vast majority of criminal defense lawyers do not know squat about science and forensics, they would have no idea how to interpret raw data and bench notes. Most do not even know what bench notes are.

Given the alarmingly high rate of forensic fraud in public and privately owned and operated crime labs in this country, I believe every criminal defense lawyer absolutely must have the assistance of their own experts to review all of the raw data and bench notes generated by the State’s experts. This is so important that I believe a criminal defense lawyer cannot provide effective assistance of counsel to a client unless he does so. In other words, the failure to do so would potentially constitute a Sixth Amendment violation pursuant to the test set forth in Strickland v. Washington, 466 US 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

I say, “potentially,” because counsel’s failure to secure the assistance of an expert would have to have materially affected the outcome of the trial. That is, that it is more probable than not that the jury verdict would have been different if defense counsel had retained an expert.

Murder trials differ significantly from regular criminal trials in many ways. One of the most significant differences is the prosecution’s heavy reliance on forensic evidence to prove its case. This heavy reliance means that the forensic evidence will almost always qualify as material evidence that more probably than not affects the outcome. For this reason, I believe a criminal defense lawyer commits malpractice in a murder case, if he does not retain experts to review all of the raw data and bench notes generated by the State’s experts.

That is the only way to effectively evaluate the validity of the conclusions and opinions expressed by the State’s experts. Asking them to interpret their own data is worthless because they are not going to admit that the raw data does not support their conclusions.

This is why I said the defense did the right thing by requesting the raw data.

Of course, it’s useless to them, if they do not know how to interpret it.

This is why the defense should have assembled its own team of experts last summer to review all of the raw data and bench notes generated by the State’s experts. Of course, the assistance of its own expert would ordinarily not be necessary, if the conclusions and opinions of the State’s expert are exculpatory.

However, the defense has no reason to believe that any of the State’s forensic evidence is exculpatory since Bernie de la Rionda did not advise the defense that it was. Therefore, the defense has to assume that the evidence is not exculpatory and this means that it must retain its own experts to review all of the raw data and bench notes generated by the State’s experts. Obviously, that includes the raw data retrieved from Trayvon’s phone.

For this reason, I consider West’s whiny request for assistance from the State in understanding the raw data on Trayvon’s phone to be an admission of malpractice.

Aside from ignorance, the obvious problem for the defense is lack of money. However, the defense created that problem by not setting aside sufficient funds for experts.

The solution is to admit the egregious and grossly negligent mistake and apply to the court for the relief that the defendant is entitled to pursuant to Ake v. Oklahoma, 470 US 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). However, that would require a finding that the defendant is indigent. Apparently, he has too much pride to do that and his lawyers have too much pride to admit that they screwed up.

That brings us to where we are today, a little over 30 days before a murder trial with a stubborn defendant represented by two lawyers who do not know what they are doing.

Finally, Amsterdam1234 specifically asked about discovery violations.

The State has not committed a discovery violation and the defense should STFU and get its own expert instead of whining about not being able to comprehend the raw data retrieved from Trayvon’s phone.

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Rain Did Not Wash Away Defendant’s Blood and DNA in Trayvon Martin Murder Case

January 6, 2013

Absence of evidence is not evidence of absence.

The defendant claims that Trayvon Martin punched him repeatedly in the face (24 times) after breaking his nose and knocking him to the ground with a sucker punch. He told the police that Trayvon straddled him as he lay on his back and rained down blow after blow striking him in the nose and face approximately 24 times. When he started screaming for help, Trayvon then grabbed his head and started slamming it into a cement sidewalk until he thought his head would explode. Then Trayvon pinched his nose and covered his mouth to silence his screams for help and suffocate him to death. He said he suddenly remembered that he had a gun concealed in a holster inside the waistband of his pants behind his right hip when he thought he felt Trayvon reaching for it, so he pulled it out, extended his right arm and shot Trayvon to death.

There are a multitude of problems with this story, not the least of which is the absence of any significant wounds that one would expect to see from such a beating. We have examined and discussed photos of the defendant’s wounds taken by a professional photographer at the police station several hours after the shooting and concluded that his minor wounds are not consistent with his story. We have several medical professionals commenting on this blog who have treated patients who were beaten as badly as the defendant claimed he was beaten and their wounds were far more serious than the defendant’s and required medical treatment. The defendant was treated at the scene and declined multiple offers to transport him to the ER for treatment. The photos taken at the police department do not support his claim that his nose was broken. In fact, we have not found any persuasive evidence that Trayvon ever struck the defendant.

For example, if the defendant’s story were true, we would expect that the crime lab would have detected the presence of the defendant’s blood and DNA on the lower sleeves and cuffs of his two sweatshirts and his fingernail cuttings obtained by the Assistant Medical Examiner at the autopsy. The crime lab did not detect the presence of blood on the lower sleeves and cuffs of Trayvon’s sweatshirts and the only DNA detected in the fingernail cuttings excluded the defendant and was was consistent with Trayvon Martin.

The defendant’s supporters contend that no blood was detected on the cuffs and lower sleeves of Trayvon Martin’s two sweatshirts because the rain had washed away all of the defendant’s blood and the scrapings from only one fingernail were tested. They also claim that no blood was discovered on Trayvon’s hands because Trayvon covered them with plastic bags before he assaulted the defendant.

Let’s deal with the last claim first because it is the most ridiculous. Police routinely bag the hands of homicide victims to preserve trace evidence and that is what they did to Trayvon’s hands.

They also complain that Trayvon’s hands were not swabbed, but that is not surprising since the standard practice is to cut a homicide victim’s fingernails and examine them for trace evidence. Forensic scientists do this because trace evidence can transfer from a victim’s hands to another person, surface or fall off. Trace evidence, particularly blood and DNA gets trapped under fingernails and that is why fingernail cuttings are the preferred location to check for trace evidence.

They soak the fingernail cuttings in a solution of purified water overnight and spin it out in a centrifuge to obtain all of the cellular debris present. Then they examine the debris under a microscope. If they find intact cells, the extract the DNA and type it. They do not scrape one fingernail and throw the rest away. Whoever conjured up that explanation has absolutely no idea what they are talking about. It’s probably the same person who said Trayvon wrapped his hands in plastic bags before assaulting the defendant.

Pathetic and laughable nonsense.

What about the claim that rain washed away the blood and DNA?

That claim is almost, if not quite as ridiculous, because we are discussing whether the rain would wash away all blood present on fabric leaving no detectable trace amount. To understand why the rain would not wash away any detectable amount of blood, let us take a look at presumptive tests for blood and failed efforts to remove all detectable trace amounts of blood invisible to the human eye.

Experience has shown that it’s virtually impossible to clean-up blood spatter at a crime scene so that no DNA can be detected. And that is after using water, solvents, cleaning fluids and other assorted chemicals in multiple washings to remove all visible traces of blood. Even though the human eye cannot see trace amounts of blood residue, luminol will detect it. Luminol is so sensitive that it can detect the presence of blood in serial dilutions down to 1:100,000. If luminol can detect it, PCR testing certainly will type the DNA present.

Other chemicals used in presumptive testing for the presence of blood are leuchomalachite green, phenolphthalein, Hemastixs, Hemident, and Bluestarr. All are as equally sensitive to blood as Luminol except for leuchomalachite green (1:10,000). For more information, please read this Technical Note in the Journal of Forensic Science, published in 2006. JFS is a peer reviewed professional journal.

The defendant’s supporters do not realize that a complete DNA profile can be developed from the DNA contained in a single white blood cell by using the STR/PCR process (red blood cells do not have a nucleus). In practice, they require more than a single cell to avoid copying a contaminant DNA introduced extraneously into the testing process, but they do not need very much sample.

In the mid 80s, Dr. Kary Mullis developed a new DNA typing system that involved using chemicals and bacteria present in high temperature hot springs to mimmick cellular division and create more DNA, or PCR product to type. PCR is short for the polymerase chain reaction. The process can produce millions of copies of specific sequences of genetic material or loci called STR’s (short tandem repeats) The FBI Crime Lab later standardized the DNA extraction and typing process. By the end of the 90s, all public and private crime labs were using the same kit to type DNA and that is what the Florida Crime Lab did in this case.

In 1993, Dr. Mullis was awarded the Nobel Prize in Chemistry for his discovery.

Therefore, the argument that rain washed away even invisible trace amounts of blood and DNA is ridiculous and not supported in any of the peer reviewed literature.

For more information on Dr. Mullis, please visit his website and Wikipedia. He is a genius, avid surfer and fascinating character, even if some of his political views and opinions are a bit odd.


Crime Lab Fraud

October 23, 2012

This post is by Crane-Station

By now, most of us have heard of Massachusetts crime lab chemist Annie Dookhan. Ms. Dookhan was arrested in September for allegedly obstructing justice by falsifying her lab work, providing false testimony and lying about her credentials. The lab has shut down and the investigation is ongoing. Her fake work may have affected as many as 60,000 lab results involving as many as 34,000 accused. Many wrongfully convicted inmates have already been released. Ms. Dookhan faces 20 years in prison if she is convicted.

In my opinion, twenty years is a slap on the wrist, given the egregious amount of damage a wrongful conviction inflicts on a person’s life and family. A twenty-year sentence for a crime of nonviolence can in reality only amount to as little as three to four years served before parole eligibility. I am personally in favor of per se zero-tolerance laws regarding forensic fraud: Any time a lab analyst falsifies lab results, falsely claims not to have the ability to test for items, lies about education or credentials, presents fake, made-up science to juries, or passes him or herself off as an ‘expert’ in clinical medicine and presents inappropriate and false clinical testimony to juries, that person should be subject to life in prison without the possibility of parole. Such actions amount to nothing less than rape, under color of a white coat.

The Massachusetts lab scandal is anything but unique. Most of the media attention to forensic fraud thus far has been related to DNA technology and exonerations, however. Now it is time to look at non-DNA lab analyst fraud that, while it may not lead to a death sentence, it does lead to irreversible destruction of lives and careers.

Many of you know that I was convicted of a DUI in Kentucky with no bad driving and two exculpatory lab results, indicating 1) 0.00 alcohol content of blood and 2) “no drugs detected” in the blood. This DUI led to other charges and convictions related to a controlled substance the arresting officer supposedly ‘found’ in his cruiser after an hour-and-a-half long roadside search of my vehicle and my person revealed no illegal substances. I received an eight-year sentence.

At trial the prosecution advanced its theory: that I was dangerously impaired on my prescription medication, Klonopin. The dangerous impairment was obvious: I had supposedly “failed” a roadside HGN (horizontal gaze nystagmus) test. The reason the lab missed such a high level of this commonly prescribed medicine is that 1) the lab had no idea what to look for and 2) the lab had no way of testing for its presence and 3) if only the lab had known, it would have sent the blood to a third-party contract lab.

Six-and-one-half years after the arrest and affirmed convictions, I began looking at the trial testimony in my own case. I also made some inquiries. I learned, to my utter horror, that the lab did, in fact, have notification to look for this drug in my blood. I also learned that the crime labs typically do presumptive testing for substances. If nothing is detected during the preliminary testing, there is no need for confirmatory further identification and quantification because the drug in question was either 1) not present or 2) not present at any level of toxicological (or therapeutic) value or interest. I learned from a conversation with the maker of Klonopin that any trial testimony departure from the FDA-approved product insert is inappropriate.

At my trial, after misleading the jury in my case about the lab’s notification that this was indeed a drug to look for, as it was listed which as a valid prescription at the time of the arrest, the lab analyst put on his physician’s hat and provided a rather impressive false testimonial about 1) the drug’s “immediate effects” at therapeutic levels, including, but not limited to “both vertical and horizontal gaze nystagmus.” His testimony stands in stark contrast to the FDA-approved product insert (separating adverse events into two distinct and clear categories), the peer-reviewed PubMed literature, wherein at least fourteen articles discuss the use of this drug for therapeutic treatment of various types of pathological nystagmus, as well as at least one study specifically addressing impaired driving that found no correlation between HGN and Klonopin. All of these studies were completed and published before the lab analyst took the stand and provided the testimony that led to my convictions. To bolster his credibility and qualifications he offered a nonsensical explanation that sounded sort of technical nonetheless by stating that the “chlorine atom makes it so that liquid-liquid extraction is incapable of pulling [Klonopin] out of the blood.”* Having taken Organic Chemistry myself and having grown up with a father who co-founded a clinical laboratory in the Northwest, I was, to mildly understate, shocked to see these words come out of a lab worker’s mouth, when I reviewed the tapes.

If I get nothing else across in this post, I would like to convey some key concepts as follows. Forget CSI. Just because someone calls him or herself an ‘expert,’ a ‘chemist’ or an ‘analyst’ does not mean that they are. A white coat is meaningless. Crime labs are most often another police department and nothing more. Lab analysts are techs working for the prosecution and if they have to misrepresent an unambiguous exculpatory result as somehow inculpatory, they will. If they have to make up science, they will, just to get a conviction at all costs. With nothing more than a bachelor’s degree at most, crime lab analysts can and will misrepresent themselves and testify as clinical ‘experts,’ even if, as in my case, they have never seen or tested for the drug in question. Crime labs receive millions of dollars from the government (Paul Coverdell grants) with little or no oversight or accountability. When you give your blood in accordance with your state statutes, please, please, do not ever assume that you will be ‘cleared’ if the results come back negative. It is absolutely essential that you get extra tubes of blood drawn and sent to a competent clinical laboratory.

For further reading on this issue, please visit this University of Virginia Law Review article:

http://virginialawreview.org/content/pdfs/95/1.pdf

*During jury selection (voir dire) in my case, the prosecutor excused a prospective juror who was a chemical engineer because the prosecutor did not want someone with knowledge of chemistry to serve on my jury.


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