(3) Ethics and Bullet Lead
Content
Ethics and Forensic Science
Dwight E. Adams
Director, Forensic Science Institute
University of Central Oklahoma
The Wrongful Conviction of Forensic Science
By: John Collins and Jay Jarvis
July 16, 2008
In the 200 wrongful convictions studied by the Innocence Project,
failures were ranked as follows:
54%
15%
11%
10%
9%
1%
Eyewitness misidentifications
False confessions
Forensic Science malpractice
Government misconduct
Informants
Bad lawyering
Of the instances of forensic science malpractice shown above, only 1
was found to have occurred in an accredited laboratory.
Forensic science malpractice was identified as the sole systemic failure
in only two overturned convictions (1%). Both were associated with the
work of Fred Zain.
Bexar County Medical Examiner’s
Office, San Antonio
West Virginia State Police
Fred Zain
Fred Zain was a chemist at West Virginia's state crime lab for 12
years. But in 1993, a report by the West Virginia Supreme Court
discredited his work, finding that "any testimonial or documentary
evidence offered by Zain at any time in any criminal prosecution
should be deemed invalid, unreliable and inadmissible." False
laboratory work by Zain helped put at least six men in prison
erroneously in two states. He was indicted for false testimony, but
died before he could be brought to trial.
FBI conducted a review of DNA testing procedures and results (Bexar County ME
Lab) and issued reports on July 19, 1994 and February 13, 1995
1
Trial and Error (Over-zealous San Antonio
police serologist Fred Zain)
Article from: Texas Monthly October 1, 1994
Alejandro, who adamantly maintained his innocence, voluntarily gave authorities a
blood sample. They sent the blood, along with the victim's robe and slip, which
contained traces of semen, for DNA testing at the crime lab in the Bexar County
Forensic Science Center in San Antonio.
On July 30 Fred Zain, then the lab's chief serologist, wrote in a report that the DNA
from the semen on the clothing matched the DNA of Gilbert Alejandro's blood
sample. During the trial, in December 1990, Zain's testimony unequivocally linked
Alejandro to the rape, convincing jurors that the man was guilty.
"Zain sat there on the stand and said he was a hundred percent sure the DNA results
from the semen and the blood were a match," recalls Alejandro's lawyer, Emmett
Harris of Uvalde. "What were the police supposed to think? What were the jurors
supposed to think? Alejandro was sentenced to twelve years in prison.
The only problem was that Zain's testimony was wrong.
Ethical and Quality Issues in
Forensic Laboratories
“Dry lab” – Fred Zain
Theft of evidence
Tampering with evidence – Annie Dookhan
Overstating the significance of laboratory examinations –
Joyce Gilchrist – Oklahoma City Police Dept.
An ethical issue: to make overblown claims about your
work.
Oklahoma City Police Department
Joyce Gilchrist
Joyce Gilchrist collected and analyzed evidence for the
Oklahoma City Police for 21 years before her mistakes were
caught. After a judge criticized her testimony, FBI and internal
police reviews turned up problem after problem with Gilchrist's
work. Her misidentification of hairs helped send Jeffrey Pierce to
prison. Pierce is one of at least three men whose convictions
have since been overturned, including one who was on death
row. Gilchrist was fired in 2001, and hundreds of cases spanning
two decades were reviewed.
2
“…..people who are working at the state crime lab
should not take the position that ‘we are an arm of
the prosecution.’ They’re scientists. They should be
an arm of the truth.”
Judge Daniel Locallo
Cook County Circuit Court, Illinois
Chicago Tribune, October 20, 2004
Felon’s assault case presents governor with tough choice
Weatherly seeks expungement of record
The Oklahoman Editorial
Published: August 20, 2009
“Yet it also was based in part on forensic evidence processed by Joyce Gilchrist,
and that’s troubling. Gilchrist, former chemist for the Oklahoma City Police
Department, tied Weatherly to the crime via microscopic fibers taken from his
tennis shoes. She was fired in 2001 after the FBI found that her analysis of
evidence in this case and others was, at best, grossly inept.
After the FBI report was issued, one inmate convicted in part on Gilchrist’s
testimony was promptly released and his record expunged. Weatherly was
already out of prison by then. If he hadn’t been, there is every reason to believe
he would have been treated similarly. Bad timing essentially left him having to
settle for a pardon that didn’t pack much of a punch.”
Massachusetts Department of
Public Health Drug Lab
Annie Dookhan – Accused, not convicted
About 300 to 500 defendants, including some "pretty dangerous
people," may be released into Boston streets because of the
alleged mishandling of evidence at a Massachusetts drug lab, a
prosecutor said Friday.
Tampering with evidence – drug weights
3
Ex-FBI Biologist Admits
Falsifying DNA Data
Washington: Scientist
Falsified DNA Reports
Jacqueline Blake
A report by the Justice Department's inspector general found that FBI lab
employee Jacqueline Blake failed to complete a critically important test in 90
cases. The test, which detects whether or not a DNA sample has been
contaminated, is called a negative control. Blake also "falsified her laboratory
documentation to conceal" her improper work, according to the inspector
general's report. Retests of Blake's work did not turn up any results that were
wrong. She resigned from the FBI in 2002. Last year she pleaded guilty in
federal court to making false statements in her lab reports.
4
Ballistics Evidence
Comparison Microscope
40X
Land Impression
Bullet comparison vs bullet lead analysis
5
National Research Council
The NRC was asked three questions: (1) was the current analytical method
sound? (2) was the statistical analysis for comparison sound? and, (3) were the
interpretations or conclusions reached with the analytical method and statistical
comparisons valid?
A. Regarding the analytical method, the NRC stated that the "current analytical
instrumentation used by the FBI is appropriate and is the best available technology,
(and) the elements* selected by the FBI for analysis are appropriate."
B. Regarding the statistical analysis, the NRC recommended that the FBI use a
different statistical approach from the one currently used.
C. Regarding the interpretation issues per the NRC analysis, to have value as evidence
in court, the interpretation of results depends on the quality of the chemical analysis,
the statistical comparison, and the determination of the significance of the
comparison.
*Relevant elements in bullet lead are antimony, arsenic, copper, bismuth, silver, tin, and cadmium
Conclusion
NRC “. . . to have value as evidence in court,
the interpretation of results depends on the
quality of the chemical analysis, the statistical
comparison, and the determination of the
significance of the comparison.”
It is this last point which leads to the discontinuance of the technique. The
following excerpts from the NRC report speak directly to the underlined
portion:
“Variations among and within lead bullet manufacturers make any
modeling of the general manufacturing process unreliable and
potentially misleading in (bullet lead) comparisons.“ NRC
6
It did not matter that the FBI Laboratory was using the
best available technology. What mattered was the
FBI Laboratory’s inability to determine the
significance of it’s comparisons. The FBI laboratory
could not afford to be misleading to a jury or state
that two samples are indistinguishable, but then not
state the significance of that fact or what it means.
In 1998, Panhandle high school teacher Jimmy
Ates was convicted of murder for shooting his
wife seven times in the couple's Okaloosa
County home. There were conflicting witness
accounts and a time line with wiggle room.
What did the jury hear in the Ates case?
“. . . the testimony of an FBI expert was indisputable: The
bullets that murdered Norma Jean Ates in the couple's
bedroom came from Jimmy Ates' box of bullets.”
“Prosecutor Rod Smith hammered the point home to jurors:
"Of all the millions and billions of bullets that are made by any
given company in any given time frame, the bullets that killed
Norma Jean were manufactured from the same batch that were
found in the box in the back room.“”
Discredited forensics may upend rulings
Meg Laughlin, Times Staff Writer
In Print: Saturday, December 13, 2008
7
Dec. 10, 2007 Florida
Break in his case came from the FBI: The evidence used to
convict Derrick Smith was based on shaky science.
By Meg Laughlin, St. Petersburg Times
. . . .trying . . . .to persuade a judge to hear new evidence for a death row inmate convicted of killing a
St. Petersburg cab driver.
“I hoped the judge would reverse his opinion," said McClain. "But I knew it was an uphill climb.“ Then
something remarkable happened.
On Nov. 18 McClain got a call from his colleague Terri Backhus: "Did you see 60 Minutes? This could
be huge for Derrick Smith."
That evening 60 Minutes had aired a segment about a joint investigation with the Washington Post.
The segment began: "There are hundreds of defendants imprisoned around the country who were
convicted with the help of a now discredited forensic tool."
That tool, called "FBI bullet lead analysis," which had been relied upon since the 1960s in more than
2,500 cases across the country, was the very test that had produced the main forensic evidence in
the Smith case.
But now FBI officials were admitting on camera that "the science doesn't support it."
"The testimony was misleading and inappropriate in criminal trials," former FBI lab director Dwight
Adams told 60 Minutes.
Improper Closing: People v. Linscott,
159 Ill.App.3d 71, 78 (Ill.App. 1 Dist.,1987)
The examiner very carefully avoided testifying that they (hairs) matched:
Prosecutor: So again all we are talking about is that they match in
every respect, is that correct?
Examiner: They were consistent.
Yet, the prosecutor told the jury in his rebuttal closing argument:
“The like hairs, more than one, more than two, more than three and you
heard the probabilities . . . . hair matching Mr. Linscott”
ALL I REALLY NEED TO KNOW ABOUT ETHICS
I LEARNED IN KINDERGARTEN
Adapted from KENDALL M. GRAY
15th Annual Conference on State and Federal Appeals
June 2-3, 2005
Austin, Texas
Things I learned in Kindergarten
Share
Be Polite
Help Others
Don’t Fight
Take Naps
8
Dwight E. Adams
Director, Forensic Science Institute
University of Central Oklahoma
The Wrongful Conviction of Forensic Science
By: John Collins and Jay Jarvis
July 16, 2008
In the 200 wrongful convictions studied by the Innocence Project,
failures were ranked as follows:
54%
15%
11%
10%
9%
1%
Eyewitness misidentifications
False confessions
Forensic Science malpractice
Government misconduct
Informants
Bad lawyering
Of the instances of forensic science malpractice shown above, only 1
was found to have occurred in an accredited laboratory.
Forensic science malpractice was identified as the sole systemic failure
in only two overturned convictions (1%). Both were associated with the
work of Fred Zain.
Bexar County Medical Examiner’s
Office, San Antonio
West Virginia State Police
Fred Zain
Fred Zain was a chemist at West Virginia's state crime lab for 12
years. But in 1993, a report by the West Virginia Supreme Court
discredited his work, finding that "any testimonial or documentary
evidence offered by Zain at any time in any criminal prosecution
should be deemed invalid, unreliable and inadmissible." False
laboratory work by Zain helped put at least six men in prison
erroneously in two states. He was indicted for false testimony, but
died before he could be brought to trial.
FBI conducted a review of DNA testing procedures and results (Bexar County ME
Lab) and issued reports on July 19, 1994 and February 13, 1995
1
Trial and Error (Over-zealous San Antonio
police serologist Fred Zain)
Article from: Texas Monthly October 1, 1994
Alejandro, who adamantly maintained his innocence, voluntarily gave authorities a
blood sample. They sent the blood, along with the victim's robe and slip, which
contained traces of semen, for DNA testing at the crime lab in the Bexar County
Forensic Science Center in San Antonio.
On July 30 Fred Zain, then the lab's chief serologist, wrote in a report that the DNA
from the semen on the clothing matched the DNA of Gilbert Alejandro's blood
sample. During the trial, in December 1990, Zain's testimony unequivocally linked
Alejandro to the rape, convincing jurors that the man was guilty.
"Zain sat there on the stand and said he was a hundred percent sure the DNA results
from the semen and the blood were a match," recalls Alejandro's lawyer, Emmett
Harris of Uvalde. "What were the police supposed to think? What were the jurors
supposed to think? Alejandro was sentenced to twelve years in prison.
The only problem was that Zain's testimony was wrong.
Ethical and Quality Issues in
Forensic Laboratories
“Dry lab” – Fred Zain
Theft of evidence
Tampering with evidence – Annie Dookhan
Overstating the significance of laboratory examinations –
Joyce Gilchrist – Oklahoma City Police Dept.
An ethical issue: to make overblown claims about your
work.
Oklahoma City Police Department
Joyce Gilchrist
Joyce Gilchrist collected and analyzed evidence for the
Oklahoma City Police for 21 years before her mistakes were
caught. After a judge criticized her testimony, FBI and internal
police reviews turned up problem after problem with Gilchrist's
work. Her misidentification of hairs helped send Jeffrey Pierce to
prison. Pierce is one of at least three men whose convictions
have since been overturned, including one who was on death
row. Gilchrist was fired in 2001, and hundreds of cases spanning
two decades were reviewed.
2
“…..people who are working at the state crime lab
should not take the position that ‘we are an arm of
the prosecution.’ They’re scientists. They should be
an arm of the truth.”
Judge Daniel Locallo
Cook County Circuit Court, Illinois
Chicago Tribune, October 20, 2004
Felon’s assault case presents governor with tough choice
Weatherly seeks expungement of record
The Oklahoman Editorial
Published: August 20, 2009
“Yet it also was based in part on forensic evidence processed by Joyce Gilchrist,
and that’s troubling. Gilchrist, former chemist for the Oklahoma City Police
Department, tied Weatherly to the crime via microscopic fibers taken from his
tennis shoes. She was fired in 2001 after the FBI found that her analysis of
evidence in this case and others was, at best, grossly inept.
After the FBI report was issued, one inmate convicted in part on Gilchrist’s
testimony was promptly released and his record expunged. Weatherly was
already out of prison by then. If he hadn’t been, there is every reason to believe
he would have been treated similarly. Bad timing essentially left him having to
settle for a pardon that didn’t pack much of a punch.”
Massachusetts Department of
Public Health Drug Lab
Annie Dookhan – Accused, not convicted
About 300 to 500 defendants, including some "pretty dangerous
people," may be released into Boston streets because of the
alleged mishandling of evidence at a Massachusetts drug lab, a
prosecutor said Friday.
Tampering with evidence – drug weights
3
Ex-FBI Biologist Admits
Falsifying DNA Data
Washington: Scientist
Falsified DNA Reports
Jacqueline Blake
A report by the Justice Department's inspector general found that FBI lab
employee Jacqueline Blake failed to complete a critically important test in 90
cases. The test, which detects whether or not a DNA sample has been
contaminated, is called a negative control. Blake also "falsified her laboratory
documentation to conceal" her improper work, according to the inspector
general's report. Retests of Blake's work did not turn up any results that were
wrong. She resigned from the FBI in 2002. Last year she pleaded guilty in
federal court to making false statements in her lab reports.
4
Ballistics Evidence
Comparison Microscope
40X
Land Impression
Bullet comparison vs bullet lead analysis
5
National Research Council
The NRC was asked three questions: (1) was the current analytical method
sound? (2) was the statistical analysis for comparison sound? and, (3) were the
interpretations or conclusions reached with the analytical method and statistical
comparisons valid?
A. Regarding the analytical method, the NRC stated that the "current analytical
instrumentation used by the FBI is appropriate and is the best available technology,
(and) the elements* selected by the FBI for analysis are appropriate."
B. Regarding the statistical analysis, the NRC recommended that the FBI use a
different statistical approach from the one currently used.
C. Regarding the interpretation issues per the NRC analysis, to have value as evidence
in court, the interpretation of results depends on the quality of the chemical analysis,
the statistical comparison, and the determination of the significance of the
comparison.
*Relevant elements in bullet lead are antimony, arsenic, copper, bismuth, silver, tin, and cadmium
Conclusion
NRC “. . . to have value as evidence in court,
the interpretation of results depends on the
quality of the chemical analysis, the statistical
comparison, and the determination of the
significance of the comparison.”
It is this last point which leads to the discontinuance of the technique. The
following excerpts from the NRC report speak directly to the underlined
portion:
“Variations among and within lead bullet manufacturers make any
modeling of the general manufacturing process unreliable and
potentially misleading in (bullet lead) comparisons.“ NRC
6
It did not matter that the FBI Laboratory was using the
best available technology. What mattered was the
FBI Laboratory’s inability to determine the
significance of it’s comparisons. The FBI laboratory
could not afford to be misleading to a jury or state
that two samples are indistinguishable, but then not
state the significance of that fact or what it means.
In 1998, Panhandle high school teacher Jimmy
Ates was convicted of murder for shooting his
wife seven times in the couple's Okaloosa
County home. There were conflicting witness
accounts and a time line with wiggle room.
What did the jury hear in the Ates case?
“. . . the testimony of an FBI expert was indisputable: The
bullets that murdered Norma Jean Ates in the couple's
bedroom came from Jimmy Ates' box of bullets.”
“Prosecutor Rod Smith hammered the point home to jurors:
"Of all the millions and billions of bullets that are made by any
given company in any given time frame, the bullets that killed
Norma Jean were manufactured from the same batch that were
found in the box in the back room.“”
Discredited forensics may upend rulings
Meg Laughlin, Times Staff Writer
In Print: Saturday, December 13, 2008
7
Dec. 10, 2007 Florida
Break in his case came from the FBI: The evidence used to
convict Derrick Smith was based on shaky science.
By Meg Laughlin, St. Petersburg Times
. . . .trying . . . .to persuade a judge to hear new evidence for a death row inmate convicted of killing a
St. Petersburg cab driver.
“I hoped the judge would reverse his opinion," said McClain. "But I knew it was an uphill climb.“ Then
something remarkable happened.
On Nov. 18 McClain got a call from his colleague Terri Backhus: "Did you see 60 Minutes? This could
be huge for Derrick Smith."
That evening 60 Minutes had aired a segment about a joint investigation with the Washington Post.
The segment began: "There are hundreds of defendants imprisoned around the country who were
convicted with the help of a now discredited forensic tool."
That tool, called "FBI bullet lead analysis," which had been relied upon since the 1960s in more than
2,500 cases across the country, was the very test that had produced the main forensic evidence in
the Smith case.
But now FBI officials were admitting on camera that "the science doesn't support it."
"The testimony was misleading and inappropriate in criminal trials," former FBI lab director Dwight
Adams told 60 Minutes.
Improper Closing: People v. Linscott,
159 Ill.App.3d 71, 78 (Ill.App. 1 Dist.,1987)
The examiner very carefully avoided testifying that they (hairs) matched:
Prosecutor: So again all we are talking about is that they match in
every respect, is that correct?
Examiner: They were consistent.
Yet, the prosecutor told the jury in his rebuttal closing argument:
“The like hairs, more than one, more than two, more than three and you
heard the probabilities . . . . hair matching Mr. Linscott”
ALL I REALLY NEED TO KNOW ABOUT ETHICS
I LEARNED IN KINDERGARTEN
Adapted from KENDALL M. GRAY
15th Annual Conference on State and Federal Appeals
June 2-3, 2005
Austin, Texas
Things I learned in Kindergarten
Share
Be Polite
Help Others
Don’t Fight
Take Naps
8
