Investigation of Forensic Evidence – New 4th Circuit Case Involving Standards of Representation

On November 22, the Fourth Circuit decided a case involving a Sixth Amendment ineffective assistance of counsel claim based on the failure of counsel to investigate the State’s forensic evidence. In Elmore v. Ozmint, the Court found Elmore was entitled to relief, reversing and remanding the state capital murder conviction and directing the district court to award a writ of habeas corpus unless the State of South Carolina prosecutes Elmore in a new trial within a reasonable time.

The Fourth Circuit determined that the State’s case hinged on forensic evidence, though there was also evidence of a jailhouse confession, the defendant’s alleged guilty demeanor, and the lack of a corroborated alibi for the time when the medical examiner said the crime occurred. Despite the apparent significance of the forensic evidence and the fact that their client was asserting innocence, the attorneys’ only examination of the forensic evidence was a request to see the exhibits that the State intended to introduce a day or two before the trial in 1982. The Court found:

To paraphrase Rompilla, “[i]t flouts prudence to deny that a defense lawyer should try to look at [forensic evidence] he knows the prosecution will cull for [inculpatory] evidence, let alone when the [forensic evidence] is sitting in the [prosecutor’s office], open for the asking.” See Rompilla v. Beard, 545 U.S. 374, 389 (2005). (p. 144, full citation added.)

The forensic evidence presented by the State that was not challenged by Elmore’s attorneys included fingerprint evidence and evidence regarding scientific indicators of the time of death. Defense counsel also failed to expose the crime scene investigators’ failures to photograph, collect and package physical evidence at the crime scene and failed to question the misreporting of the contents of one item of evidence.

Given the significance of the forensic evidence, the Court found that the attorneys had a “professional obligation to investigate critical prosecution evidence” and that their failure to examine and investigate the evidence pre-trial was deficient. (p. 143) It stated:

…the circumstances necessitated that the defense work to engender doubt about the forensic evidence. Elmore’s lawyers attempted as much in their cross-examinations of the State’s witnesses, but, because the lawyers had twice squandered opportunities to investigate the forensic evidence (prior to the 1982 and 1984 trials), they were unarmed for the battle. (p. 146-147)

The Court critiqued the lawyers’ failure to investigate the State’s proposed exhibits, failure to investigate the other (possibly exculpatory) evidence that the State was bypassing, and failure to conduct an independent analysis of a single item of forensic evidence that was to be presented by the State. (p. 143)

This decision highlights the importance of investigating forensic evidence, including investigating evidence that the State may be bypassing, and conducting independent analysis, where appropriate. Attorneys should be aware this case and should consider citing to it when arguing that investigating and challenging forensic evidence is part of a constitutionally effective representation.

Law and Neuroscience Resource

The MacArthur Foundation Research Network on Law and Neuroscience is a centralized location where you can find publications, cases, news articles, training information and other resources on the intersection of law and neuroscience. The Network has a listserve that you can sign up for here. There is also a Law and Neuroscience Blog which provides an online forum for discussion of current research and court cases by members of the Research Network, other researchers and the public.

The Network maintains a searchable law and neuroscience bibliography, which now includes over 700 items.

According to a press release, research conducted by the program will include brain imaging and other studies to examine detecting deception, detecting recognition, cognitive and brain development in adolescents, and when neuroscience evidence (such as fMRI brain scans) should and should not be admissible in court.

Forensic Library at Indigent Defense Services

I recently posted on the IDS Forensics website a list of the books that I have available for attorneys to use at the IDS Main Office in Durham. For attorneys who cannot travel to Durham, please call me (919-354-7217) if you need access to these texts. If you are a North Carolina public defender, assistant public defender or private appointed counsel, I am available to assist you with legal or scientific research on topics of forensic science.

Take a look at the titles below and contact me if you need research assistance:

• John M. Butler, Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers (2d ed. 2005).
• Larry E. Daniel & Lars E. Daniel, Digital Forensics for Legal Professionals: Understanding Digital Evidence From the Warrant to the Courtroom (2012).
• Vincent J.M. DiMaio, Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques (2d ed. 1999).
• David L. Faigman et al., Modern Scientific Evidence: Forensics (Student ed. 2008).
• David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony, Vol. 1: Statistics & Research Methods (2010-2011).
• James C. Garriott, Ed., Garriott’s Medicolegal Aspects of Alcohol (5th ed. 2008).
• Brian J. Heard, Firearms and Ballistics: Examining and Interpreting Forensic Evidence (2d ed. 2008).
• National Fire Protection Association 921: Guide for Fire and Explosion Investigations (2008).
• Richard Saferstein, Ed., Forensic Science Handbook: Volume I (2d ed. 2002).
• Richard Saferstein, Ed., Forensic Science Handbook: Volume II (2d ed. 2005).
• Richard Saferstein, Ed., Forensic Science Handbook: Volume III (2d ed. 2010).
• James Shellow, Cross-Examination of the Analyst in Drug Prosecutions (2009).
• William W. Shockley & Harold C. Pillsbury III, The Neck: Diagnosis and Surgery (1994).
• Werner U. Spitz, Ed., Spitz and Fisher’s Medicolegal Investigation of Death: Guidelines for the Application of Pathology to Crime Investigation (4th ed. 2006).

Digital Forensic Evidence

On Tuesday, the Supreme Court considered the constitutional limits on police use of new forms of technology as it heard oral arguments in United States v. Jones. The Court examined how the Fourth Amendment applies to warrantless tracking of cars using GPS devices. The Justices considered the extent to which the police could use a GPS device placed on a suspect’s car and collect data from the device (in that case, for a month). The case is expected to be decided next year.  For more coverage, click here or here.

If you have a case involving digital evidence, such as computer or network evidence, cell phone evidence, cell phone tower information being used to “track” a suspect, GPS devices, digital images or other types of electronic or digital evidence, take a look at the new Digital Evidence page of the IDS Forensics website. I’ve posted reference materials, articles, information about experts, and links to other online resources.

As always, if you have filed motions, subpoenaed records or researched a related topic, please email me if you’re willing to share what you’ve done with other attorneys.

New Forensic Science Technology Center of Excellence to be located in RTP

The National Institute of Justice has awarded a $6 million grant to RTI International and its partners to form a new Forensic Science Technology Center of Excellence in Research Triangle Park.

RTI International states that it will work to increase the capabilities of state and local criminal justice agencies to effectively and professionally serve the public in matters involving forensic science technology. The University of North Texas Health Science Center, Duquesne University Center for Forensic Science and Law, and Virginia Commonwealth University Department of Forensic Science will work with RTI International as partners in this project.

The project will include training and outreach as well as testing, evaluation, technology assistance for use by crime laboratories. Click here for the announcement of the project. I will post additional information about how the Center of Excellence will improve capacities of state and local crime laboratories as specific projects are announced.

NC Court of Appeals decides NarTest case

In State v. Jones, __ N.C. App. __ (November 1, 2011), the NC Court of Appeals issued an important decision regarding the admissibility of NarTest evidence. NarTest is a private company that produces the NarTest NTX 2000 machine which has been used by local law enforcement in several cities and counties in North Carolina to test samples of suspected controlled substances. The NarTest machine uses a technique that is different from techniques used in crime labs. NarTest also has a lab located in Morrisville that tests samples of suspected controlled substances using methods of analysis similar to those used in state crime labs.

State v. Jones involves the testing of substances by a sheriff’s detective using the NarTest machine as well as the testing of the same substances at the NarTest lab by retired SBI analyst Trot Raney. The defendant argued that the testing performed by the detective using the NarTest machine and the testing performed by Mr. Raney in the NarTest lab failed to satisfy the first prong of the Howerton test which requires that the “proffered method of proof [be] sufficiently reliable as an area for expert testimony[.]” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458 (2004).

With respect to the substances that were tested by the detective, the Court held that the detective’s testimony regarding his use of the NarTest machine was erroneously admitted under the Howerton standard. Among the factors considered by the Court were that the detective “did not testify as to whether the NarTest had been recognized by experts in the field of chemical analysis as a reliable method of testing, nor did he compare the NarTest to other testing method currently used to identify controlled substances.” Jones at 8. Additionally, the detective “had been ‘trained to operate the NarTest, but he had no ‘professional background in the field of chemical analysis of controlled substances.'” Id. at 8-9. Finally, the detective “did not testify as to any independent research he had conducted, nor did he supplement his testimony with a visual aid.” Id. at 9.

Previously in State v. Meadows, 201 N.C. App. 707 (2010) the Court came to the same conclusion regarding this detective’s testimony, concluding that with respect to the detective’s testimony, the “expert’s proffered method of proof [is not] sufficiently reliable as an area for expert testimony” because the State failed to proffer evidence of indicia of reliability required by Howerton.  Meadows at 712. Because the detective’s testimony in Jones was similar to his testimony in Meadows, the Court held his testimony was erroneously admitted. Jones at 9.

With respect to Mr. Raney’s testimony regarding the NarTest machine used by the detective, the Court also found that admission of that testimony was erroneous. In making this determination, the Court considered several factors: Mr. Raney’s testimony that the NarTest had not been licensed or certified by the Department of Health and Human Services or any other agency or department of the State; the fact that Mr. Raney had not conducted any independent research on the NarTest machine outside of his duties as a NarTest employee; that the State did not present any evidence that the NarTest machine had been recognized as a reliable method of testing by experts other than Mr. Raney; that the State did not point to any publications or research performed by anyone not associated with NarTest; and that the only visual aid used to support Mr. Raney’s testimony was a promotional video created by NarTest. Id. at 11-12.

Additionally, the Court found that admission of Mr. Raney’s testimony regarding the testing of the substances in the NarTest lab was erroneous. Recently in State v. McDonald, __ N.C. App. __ (Oct. 4, 2011) Mr. Raney testified while the NarTest lab was not independently accredited by any agency, the lab was licensed by the State of North Carolina and the DEA to perform analytical testing on controlled substances. Mr. Raney’s testimony regarding the testing in the NarTest lab was allowed. In Jones, there was no evidence introduced that Mr. Raney or the NarTest lab was licensed or accredited by any agency. Mr. Raney testified in Jones that in the NarTest lab he used chemical analysis protocols similar to those used by the SBI, and his testimony regarding chemical testing in the NarTest lab was not allowed. Id. at 13-14.

The Court additionally held that a visual identification of a substance as cocaine was inadmissible under State v. Ward, 364, N.C. 133, 147 (2010), but that the visual identification of a substance as marijuana was admissible.

In sum, the defendant’s convictions involving cocaine were overturned and a new trial was ordered. His convictions involving marijuana were upheld as the Court held that the testimony regarding visual identification of marijuana was sufficient to render the admission of the NarTest results harmless with respect to that evidence. Jones at 15-16.

In light of these holdings, defenders should be aware of the successful challenges to the admission of testimony regarding the NarTest machine. With respect to testing completed in the NarTest lab, defenders should determine whether the NarTest lab is licensed or accredited by any agency, and if it is licensed, whether testing was done before or after the lab became licensed.

Additionally, attorneys may want to examine the procedures and protocols of the NarTest lab to determine whether they are equivalent to the procedures used at the State Crime Lab, particularly as the Crime Lab works to meet new ISO standards in its Drug Chemistry Section. Attorneys could compare the quality assurance procedures for each lab, the sampling procedures for each lab, and the presumptive and confirmatory tests used by each lab to determine whether they meet the minimum standards for the forensic identification of commonly seized drugs. (See p. 14 of the SWGDRUG Recommendations for an explanation of what analytical techniques should be used.)

Attorney Anne Bleyman argued Jones and Meadows before the Court of Appeals and is available to attorneys who would like additional information about confronting this type of evidence. Her email address is abtigerlaw@earthlink.com.