LAB TECH QUESTIONS

Chapter 1: Initial Discovery Motions for Information and Documents Exposing Drug Analyst and Laboratory Inadequacies, Inadherence to Scientific Principles and Practices, and  Fraud

 

The following is an actual discovery motion in a marijuana case which was dismissed without going to trial. These discovery requests would be the same in every state.

In order to satisfy the requirements established by State v. Cunningham, State v. Fair, State v Dunn and State v. Goode, the defendant through counsel requests the following items be provided through discovery.

Evidence collection forms or logs (description of evidence, packaging, identification of specimens, identification of individuals collecting samples, sample collecting procedures).

Chain-of-custody records (filed-to-lab transfers, and all transfers of evidence and associated analytical samples within the laboratory).

Laboratory receiving records (records documenting the date, time and condition of receipt of the evidence in question; laboratory-assigned identifiers; storage location).

Laboratory procedures for subsampling (collection of analytical aliquots) and contamination control.

Copies of technical procedures in effect at the time the subject testing was performed (often termed Standard Operating Procedures. Or SOP’s) for each procedure used during sample screening and confirmation, including: sample preparation, sample analysis, data reporting, and instrument operation.

Copies of the two bracketing controlled substance proficiency results for each analyst and technician responsible for preparation or analysis of subject specimens, including: raw data and reported results, target values and acceptance ranges, performance scores, and all related correspondence.

Copies of traceability documentation for standards and reference materials used  during analysis, including unique identifications, origins, dates of preparation and use, composition and concentration of prepared materials, certifications or traceability records from suppliers, assigned shelf lives and storage conditions.

Sample preparation records, including dates and conditions of preparation, responsible analyst, procedural reference, purity, concentration and origins of solvents, reagents, and control materials prepared and used, samples processed concurrently, extract volume.

Copies of bench notes, log books, and any other records pertaining to case samples or instruments, records documenting observations, notations, or measurements regarding case testing.

Instrument run log with identification of all standards, reference materials, sample blanks, rinses, and controls analyzed during the day/shift  with subject samples (as appropriate: run sequence, origins, times of analysis and aborted run sequences).

Record of instrument operating conditions and criteria for variables.

Record of instrument maintenance status and activities for instruments used in subject testing, documenting routine and as-needed maintenance activities in the weeks surrounding subject testing.

Raw data for the complete measurement sequencer (opening and closing quality control included) that includes the subject samples.

A description of the library used for spectral matches for the purpose of qualitative identification of controlled substances, including source(s) and number of reference spectra.

Copy of records documenting computation of the laboratory’s theoretical production yield, including the basis for the computation, and the algorithm used, as appropriate.

Procedure(s) for operation and calibration checks of analytical balances used to weigh controlled substances.

Results of calibration checks and documentation of mass traceability for gravimetric determinations.

Results of contamination control surveys for trace level analytes relevant to test methods at the time of analysis, including sample design and analytical procedures.

Records and results of internal reviews of subject data.

Method validation records documenting the laboratory’s performance characteristics for qualitative identification and quantitative determinations of the controlled substance, to include data documenting specificity, accuracy, precision, linearity, and method detection limits.

Copy of the  laboratory’s Quality Manual in effect at the time the subject samples were tested as well as the laboratory’s most recent Quality Manual (however named, the document that describes the laboratory’s quality objectives and procedures.

Copy of the laboratory’s ASCLD-LAB application for accreditation, and most recent Annual Accreditation Review Report, as appropriate.

Statement of qualifications of each analyst/technician responsible for processing case samples to include all names, locations, and jurisdictions of cases in which these personnel testified concerning the same substances found in the present case.

Copy of the laboratory’s ASCLD-LAB on-site inspection report, as appropriate, as well as any reports of on-site inspections by any other testing laboratory audit organization.

Copy of internal audit reports generated during the period subject samples were tested.

List of capital instrumentation in the laboratory at the time subject testing was performed, including manufacturer, model number, and major accessories.

Production throughput data for the drug testing section: number of tests performed per month or per year, and the number of Full Time Equivalent personnel in the drug testing section of the laboratory.

Failure to provide this information will deny defendant of his rights to due process, a fair trial, confrontation, and the right to compulsory processes guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution.

Chapter 2: Drug Laboratory and Drug Analyst Scientific and Legal Requirements

 

The U.S. justice system’s addressing questions of guilt and innocence through discovery in an adversarial process should theoretically act as the quality assurance/quality control mechanism for forensic crime laboratories.  However that QA/QC process has been found to have failed across the nation.  This chapter will attempt to provide some guidance toward a fairer review of forensic science.  The chapter will begin with examples of recent forensic failures in order to create the awareness that was born in the British Royal Courts of Justice in the Court of Appeal, Criminal Division in the matter Regina v.Judith Theresa Ward.  Lord Justices Glidewell, Nolan and Steyn on June 4, 1992 opined that "For the future is it important to consider why scientists acted as they did.  For lawyers, jurors and judges a forensic scientist conjures up the image of a man in a white coat working in a laboratory, approaching his task with cold neutrality, and dedicated only to the pursuit of scientific truth.  It is a somber thought that the reality is sometimes different.  Forensic scientists may be partisan."  And they may also make mistakes.  The chapter will then go on to offer a model of discovery of materials which are necessary for a forensic scientist to review in order to render an opinion as to the validity of work product of a fellow forensic scientist.

We begin with examples of forensic failure with most recent revelations.  A March 19, 20032 story in the Houston Chronicle, “Feds May Cut HPD Access to DNA Database,” reported that the “FBI may terminate the Houston Police Department’s (HPD) access to its national DNA database by the end of the week depending upon the outcome of a federal review of the growing controversy that has enveloped the HPD crime laboratory... Those problems uncovered in an independent audit of the lab include untrained staff, shoddy science and a leaky roof, and have possibly compromised the integrity of evidence used during criminal trials.  Last week, 21-year-old Josiah Sutton of Houston was released from prison after retesting of the evidence used to convict him of rape found that HPD’s analysis was flawed.” DNA analyses, accepted as positive evidence of guilt had been flawed without anyone realizing it for a number of years.  Anyone except innocent though convicted victims of the flaws.  Significantly the article quotes the FBI Laboratory’s Forensic Science System Chief, John Behun, in Quantico, Va. as not being able to explain how the HPD lab had access to the FBI’s national DNA database in the past without meeting the federal operational standards.  One must wonder what other outside laboratories have access to alter the national DNA database without any oversight.

And Rod Ohira of the Honolulu Star Bulletin authored a September 9, 2000 article3 which interestingly brings to light problems with another “HPD” crime lab, this time the Honolulu Police Department’s DNA Serology Unit.  The article notes that “A Florida-based organization will conduct an independent audit of the Honolulu Police Department’s DNA Serology Unit amid recent allegations of procedural impropriety.”  We begin to ask if we can trust any DNA results originating from a police crime lab. 

Our concerns turn to other disciplines as we review the December 15, 2002 article4 posted on CNN’s web site concerning the exoneration of Jimmy Ray Bromgard.  According to the article Bromgard sat in prison for 15 years for committing a rape of an 8-year-old.  His conviction was based on the testimony of the former director of the Montana State Crime Lab, Arnold Melnikoff.  Melnikoff, a 19 year veteran of Montana’s state crime lab, had testified that hairs recovered from the victim’s bedroom matched “characteristics” of Bromgard’s hair and that there “was less than a 1-in-10,000 chance that hairs found in the girl’s bedroom came from someone other than Bromgard.”  This testimony was given despite the fact that there is no scientific literature that supports that opinion according to Walter Rowe, a professor of forensic science at George Washington University. 

If we go back in time to 1997 we find an article “When a Lab Gets It Wrong” in the Washington Post5. “Authorities were confident that they had the right suspect, however...” begins to sound like a repeat song.  Robin McLaughlin of the Virginia State Crime Lab committed a “monumental error with enormous implications” according to the article.  Karl Roush, a 44-year-old itinerant house painter was wrongly charged with murder and abduction with intent to defile based on a fibers analysis.  The article asks “How could Virginia’s Division of Forensic Science assert that several types of fibers incriminated Mr. Roush in Miss Silva’s death when in fact none did?” The errors were not found until an independent fibers analyst re-analyzed the same fibers.  That analyst immediately detected significant microscopically visible differences between fibers which the Virginia crime lab had matched.  Why?

The Chicago Tribune6 on January 14, 2001 reported that “[A] supervisor at the Illinois State Police crime lab gave false testimony in nine cases, including trials that resulted in wrongful rape convictions of three Chicago men, according to an analysis by a leading forensic expert for a lawsuit against the City of Chicago.”   And on January 15, 2001, the Chicago Tribune7 went on to reveal how a report by the “former director of the New York City police laboratory...describes the Chicago lab as disorganized, poorly supervised, almost completely lacking in written procedures and performance standards, and staffed by inadequately trained workers.”  Why?

The Cleveland, Ohio paper, The Plain Dealer, reported on August 18, 20008 about testimony by a crime lab analyst in the Ohio State crime lab in which the analyst stated that “the state lab rarely analyzes trace evidence it gets from police and does not fully disclose the evidence it has.”  The analyst, Dale Laux, “testified he took samples of trace evidence from the alleged rape victim’s clothes in December, but never told police or prosecutors.  He said this was because of a standing policy. Laux also testified August, 10 that he found a hair on the woman’s bra that was never analyzed.” Why?

The Washington Post reported another problem with a local crime lab on November 23, 1999.9  A crime lab analyst, Kelly Campbell, had reported that the director of the Prince George County, Maryland crime lab was altering the parameters in mass spectrometers used to analyze drugs without notifying analysts in the lab.10 Once Ms. Campbell reported the issues an investigation resulted in drug cases being dropped and Ms. Campbell being fired.  Why?

Interestingly, flawed drug analysis has not been limited to state and local crime labs.  We see that in the July 19, 1996 Dallas Morning News article, “Hundreds of drug cases may be in jeopardy”11 which describes the flawed work product of veteran DEA chemist Anne Castillo. The article notes that “Veteran DEA chemist Anne Castillo was suspended last month after reportedly being confronted and acknowledging that she had been filing false reports since February of this year.”  Howard Schlesinger, director of the DEA laboratory in Dallas told reporters “If you’re talking about what happened since February, it’s hundreds of cases, but she’s been an employee here for many years and we don’t know the possible extent.  No one knows what happened before.”  Apparently poor record management existed in that DEA forensic lab... a convenient means of ignoring the fate of the wrongfully convicted.  Why?

Lest the reader should suspect that media coverage is the only suggestion of failure in crime labs, we are referred to government and academic descriptions of these issues.  For instance, in 1997 the United States Department of Justice Inspector General’s Office, upon the completion of a lengthy investigation of problems within the FBI crime lab,12 found the following problems within that lab: scientifically flawed testimony, inaccurate testimony, testimony beyond the examiner’s expertise, improper preparation of laboratory reports, insufficient documentation of test results, scientifically flawed reports, inadequate record management and retention systems, failures by management to resolve serious and credible allegations of incompetence, and a flawed staffing structure of a unit in the crime lab.             

The premier forensic crime lab in the world had failed to police itself, to place proper quality assurance/quality control procedures in place.   And despite the efforts made by the FBI lab to put quality assurance measures in place, we find that again the FBI lab has failed in its efforts.  A recent Associated Press article13 by John Solomon mentioned that over 3000 cases have been identified by the US Department of Justice as possibly having been affected by the poor work product of the 13 individuals whose work the US DOJ IG investigated before issuing its 1997 report.  But the same article goes on to describe a FBI DNA technician’s having failed to follow proper scientific procedures when analyzing DNA in at least 103 cases over the past few years.  The article also points to the recent indictment in Kentucky of an FBI lab bullet lead analyst, Kathleen Lundy, on a charge of knowingly giving false testimony in a 2002 pretrial hearing of a man accused of murdering a University of Kentucky football player. 

In a February 28, 2003 appellate opinion in the matter William Sybers v. Florida,14 the court found that “We conclude that the state has failed to carry its burden of establishing by ‘independent and impartial proof’ that the testing procedures used are generally accepted in the relevant scientific community.  The only testimony offered by the state to establish the general scientific acceptance of the testing procedures came from Dr. Ballard and Mr. LeBeau [the FBI’s chief chemist], each of whom either had a personal stake in the procedure or was prone to potential institutional bias.  Such assertions are not, alone, sufficient.”  Most importantly the court noted that “No scientific literature has been cited by the parties, or uncovered by our independent research, which addresses similar testing procedures for succinylmonocholine in embalmed tissues, especially tissues that are many years old.”  The FBI simply went forward with an unvalidated testing protocol, unable to prove to the court that opinions rendered were indeed valid.  Why?

The problems with flawed forensic science are coming to be widely recognized in the profession.  Barry A. J. Fisher, in his recent book, Techniques of Crime Scene Investigation,15 notes in his introduction “the following situations, unfortunately, refer to actual incidents:

* Planting evidence at a crime scene to point to a defendant

* Collecting evidence without a warrant by claiming exigent circumstances

* Falsifying laboratory examinations to enhance the prosecution’s case

* Ignoring evidence at a crime scene which might exonerate a suspect or be a mitigating factor

* Reporting on forensic tests not actually done out of a misguided belief that the tests are unnecessary

* Fabricating scientific opinions based on invalid interpretations of tests or evidence to assist the prosecution

* Examining physical evidence when not qualified to do so

* Extending expertise beyond one’s knowledge

* Using unproved methodologies

* Overstating an expert opinion by using ‘terms of art’, unfamiliar to juries

* Failing to report a colleague, superior, or subordinate who engages in any of the previously listed activities to the proper authorities.

That Fisher would openly discuss these issues is significant. Fisher is the Crime Laboratory Director of the Los Angeles County Sheriff’s Department, Los Angeles, California, Adjunct Professor, Department of Criminal Justice, California State University, Los Angeles, and past president of the American Academy of Forensic Science, past chairman of the American Society of Crime Laboratory Directors, and past president of the International Association of Forensic Sciences. 

Some have suggested a need for independent crime laboratories in open discussions of flawed forensics.   Northwestern University’s School of Law Seminar Task Force Report, The Status of the Death Penalty in Illinois, as of January 13, 2003,16 describes the March 9, 2000 appointment by Illinois Governor Ryan of members to the Commission on Capital Punishment.  “The first specific recommendation offered by the Committee in this chapter proposes the establishment of an independent state forensic laboratory, operated by civilian personnel, with its own budget, separate from any police agency or supervision. This solution will simply hide the problems of forensic fraud under another agency’s wing.  There can be no doubt that some independent crime labs will surely go the way of some independent environmental labs with the flawed science among those labs described in a January 22, 2003 Associated Press article17 entitled “Private labs fake environmental experiments, jeopardize enforcement.”.

Randolph N. Jonakait,18 in an exhaustive review of perceived issues within forensic science laboratories, describes a regulatory system that has produced better quality in clinical labs and shows how similar regulations would improve forensic laboratories.  The reader realizes from Jonakait’s presentation that real problems within forensic crime labs have been recognized for at least 30 years, and yet there seems to be no real move toward fixing those problems. 

There is a wide spread recognition of problems within forensic crime labs and yet no action taken.  This is confusing in light of the legal profession’s in-depth review of other aspects of the work product of criminal investigators.  For instance let us consider a search and seizure incident.  We hypothesize a group of law enforcement officers breaking down the front door of a house, rushing in to apprehend the inhabitants, searching virtually every surface, closet, drawer, under every bed, behind every wall if necessary and finding, among other things, white powder.  As attorneys we immediately begin to ask 4th Amendment questions.  Was the search by a government agency?  Did the search violate reasonable expectations of privacy?  Did the law enforcement officers have a warrant?  If they did not have a warrant then was the search valid under the warrantless search exceptions?  These questions come to mind almost intuitively.   We learned them in first year law school classes and carry them about effortlessly.

Of what use are the search and seizure questions if the white powder seized is flour or sugar or salt or gypsum from the wall boards or soap or any of a myriad of other white powders that exist in our lives and which are not illegal to possess?  Why do we bother to go through the whole issue of the legality of the search if no contraband was found?  Your immediate response is that the laboratory results are positive for the presence of substance X. Does it not seem strange to the reader that we are willing to question law enforcement officers concerning every single detail of their search and seizure when those law enforcement officers are wearing the gun, badge and uniform.  And yet if we dress those same officers in a white lab coat and station them in a crime lab then we assume their work product is correct.  We don’t question them at all.  We too often accept their work product as valid.                                                                       

How would we go about questioning lab work product as closely as we question the acquisition of the analyte submitted to the analytical chemistry lab.  We know that if any one of the search and seizure questions, any link in the chain, results in revelations of mistakes or unlawful activity on the part of law enforcement, we may very well see an acquittal.  By the same token, if any link in the lab chain is flawed, we may be able to show that the government has not carried the burden of proof that the evidence analyzed is contraband or whatever it alleges it to be.              There are simple questions that need to be asked which are easily understood and easily analogized to the questions one would ask of a witness who had searched a residence and seized suspected contraband.  But where would one get the answers?  Let’s be more specific and go through these questions one by one.

Understand that just as an attorney might be accused of ineffectiveness of counsel for failing to address 4th Amendment issues, so a scientist asked to review the work of another scientist might also be accused of ineffectiveness/lack of professionalism for not asking for and reviewing all the items needed in discovery which are listed below.  We will use as an example that white powder in our hypothesis above.  The crime lab analyst will invariably have received along with the evidence a communication from a field agent which will describe what the material is suspected of being.  We need to know what happens to that evidence from the time it is collected until an opinion is rendered by the forensic scientist who handles it.  And so we ask for and must receive the following items in discovery:19

1. Evidence collection forms or logs (description of evidence, packaging, identification of specimens, identification of individuals collecting samples, sample collection procedures.

             

If we think about this, it becomes obvious that very often those individuals who have acquired the samples in the field are not trained scientists, have no forensic training at all, and very seldom are even college graduates. Police officers who have not received forensic training can contaminate evidence, package it improperly, not preserve it in an appropriate environment, essentially make more mistakes than we can imagine. An old analytical chemistry text, A Brief Introduction to Quantitative Chemical Analysis, by Robert Fischer and Dennis Peters,20 notes that “In practical situations, however, obtaining a sample suitable for analysis is often a source of major difficulty and frequently limits the validity of the final result. The analytical chemist must be very concerned about the origin of his samples and, insofar as is possible, should exercise some control over how samples are obtained.”  But the modern forensic crime lab chemist has little if any control over how samples are collected, stored, packaged, and transported to his location.  A scientist who is reviewing scientific work product for counsel must know everything about the collection, preservation, transportation and handling of the evidence before the evidence was ever analyzed in the crime lab.

2. Chain-of-custody records (field-to-lab transfers, and all transfers of evidence and associated analytical samples within the laboratory).

             

There are situations in which the evidence presented in court as relevant to a finding of guilt or innocence was not that actually retrieved from any person or place associated with the trial at hand.  For instance, an April 16, 1997 article in the Wall Street Journal21 describes a mix up with evidence that when detected saved Jay William Buckley from a death chamber.  “On May 21, 1991 ,... [FBI Special Agent Mike Malone] testified in a case that would call his credibility into question more sharply than any previous trial.  The Warren County, Pa. case involved the 1988 murder of a 33-year-old woman, Kathy Wilson. The defendant, Jay William Buckley, had been accused by an alleged accomplice.  Hair evidence was sent to the New York State Police Crime Laboratory for evaluation because Mrs. Wilson was from upstate New York.

Cathryn Oakes, the examiner there, reported that she was unable to conclude that any of the hair belonged to Mr. Buckley. Lacking fingerprints or other physical evidence, District Attorney Joseph Massa Jr., says he decided to call upon the FBI’s top hair-and-fiber man, Mr. Malone, to lend his expertise.

At first, the May 1991 trial went badly for the prosecution, with the alleged accomplice admitting hundreds of times that he had lied or changed his story.  But Mr. Malone seemed to turn the tide.  In two days of testimony, he tried hard to link Mr. Buckley to the murder.  At one point, Mr. Malone said he believed there was a ‘very very strong possibility’ that hair in Mrs. Wilson’s van came from Mr. Buckley, who police had said was driving the vehicle.  In a devastating blow to the defense, he further testified that a hair he believed was Mrs. Wilson’s was found on a white blanket in the van belonging to Mr. Buckley’s alleged accomplice.  In contrast, Mrs. Oakes, the New York State examiner, had found what she termed ‘unacceptable dissimilarities’ between the victim’s hair and the hair in the van.

There was good reason for Ms. Oakes’s conclusion: It turned out that the evidence had been mislabeled and that Mr. Malone had actually tested a plain white blanket belonging to Mr. Buckley that had never been anywhere near the crime scene.”

Had defense counsel not questioned the chain of custody in that matter Mr. Buckley would most likely be dead today.

3. Laboratory receiving records (records documenting the date, time and condition of receipt of the evidence in question; laboratory-assigned identifiers; storage location).

             

As a forensic scientist in the 1980's and 1990's while working in the FBI crime lab the author on many occasions was forced to return evidence to contributors due to leaking containers, improper packaging, and cross contamination.  Forensic lab technicians who document evidence which must be returned due to improper packaging may find the same evidence re-shipped to them later repackaged with no concern about possible contamination during the first shipment. 

Evidence is most often received with an incoming communication from the contributing agency.  Reviewing those communications can be very revealing in ferreting out bias.  For instance, in a March 7, 1986 letter22 from Lieutenant Charles H. Vaughan, Crime Laboratory Director of the Oregon State Police Crime Detection Laboratory to Dr. Terry Rudolph of the Federal Bureau of Investigation, Lieutenant Vaughan requests an examination of material he had previously determined to be smokeless powder.  The letter ends: “Time is of the essence now because of a lawsuit one of the suspects is bringing against the police department for false arrest. I would appreciate any help you can give.”

The contents of this communication speak for themselves.  Sadly the bias imported into the forensic scientific work product directly led to the imprisonment of two individuals who were proven eight years later to be absolutely innocent of the crime of homicide for which they were charged, tried, convicted and sentenced.  Not until the actual perpetrator admitted guilt were the two defendants set free.  The state of Oregon admitted wrong doing and awarded them each one million dollars in damages in a subsequent civil suit.                                                       

4. Laboratory procedures for subsampling (collection of analytical aliquots) and contamination control.

If an examiner renders an opinion concerning the identity of a quantity of material of which he analyzed only a small part, he must be prepared to defend why he believes that the material analyzed is representative of the total. Alan Julian Izenman, in his article “Statistical and Legal Aspects of the Forensic Study of Illicit Drugs”23 quoting Young, D. notes that: “The quantity of drugs may reflect significant facts about the defendant.  It may demonstrate an individual’s high level of trust within the drug distribution network.  It may reflect how long he has been involved.  It may correlate with the amount of money the offender may earn from the crime.  A prosecutor’s traditional allocution at the sentencing of a drug distributor with a large quantity of drugs who had no prior record is ‘He may not have any prior arrests your honor, but the quantity of drugs alone suggests that he is no novice to drug dealing.”24

Where sentencing addresses quantity of drugs present, the subsampling procedure for analysis of small portions of a total amount of the total material must be justified.

5. Copies of technical procedures in effect at the time the subject testing was performed (often termed Standard Operating Procedures, or SOP’s) for each procedure used during sample screening and confirmation, including; sample preparation, sample analysis, data reporting, and instrument operation.

Testing laboratory procedures/protocols are very specific.  Each step of a protocol is spelled out completely.  For instance for a laboratory to simply note that in an analysis a mass spectrometer is utilized gives the reviewer nothing to work with.  The mass spectrometer, though simple in theory, is a complex instrument.  In order to properly utilize it to analyze chemicals one must be sure not only that it is functioning correctly but that all the parameters are set at valid values established by validation studies.  In other words, all the buttons and knobs need to be set right.  When the instrument is functioning correctly for the analysis at hand, there will be a readout of all the parameters.  A reviewer needs those printouts to determine if the analysis is being conducted correctly.  And parameters which are correct for one type of analysis may not be correct for another.

Forensic labs very often are constrained to use one or two mass spectrometers for a number of different types of analyses.  One technician may set the instrument correctly to analyze for the presence of cocaine and the next technician not change the parameters correctly to analyze for the presence of alcohol. We have an example of improper settings being used on a mass spectrometer in the example given above concerning the Prince George County, Maryland drug crime lab.  Kelly Campbell, a chemist in that lab, advised the author that her boss was changing parameters on the mass spectrometers at night without anyone knowing about the changes. When analyses are complex requiring a variety of analytical instruments, the complexity requires in-depth review of all instrumental parameters as well as comparison to established procedures found in the scientific literature.  If at the end of the review one finds that instrument settings are different from those which the crime lab itself notes are necessary for a valid work product, then counsel can point to the crime lab’s own standards as proof of reasonable doubt.

6. Copies of the two bracketing controlled substance proficiency results for each analyst and technician responsible for preparation or analysis of subject specimens, including: raw data and reported results, target values and acceptance ranges, performance scores, and all related correspondence.

 

In order to determine if an examiner is conducting analyses correctly, that examiner is tested.  Most crime labs test using internal proficiency exams. A more proper method of testing is through the use of external proficiency tests where results are not reviewed by anyone associated with the crime lab.  Invariably the FBI lab will advise that all their examiners pass 100% of their proficiency exams.  However an incident was reported by Supervisory Special Agent Greg Parsons to the U.S. DOJ Inspector General during his investigation of the FBI crime lab where Parsons described a proficiency exam taken and failed by all the examiners in Parsons’ unit at the lab.  Parsons advised that when he brought this to the attention of management the exam’s results were destroyed and the exam was taken again.25 The author personally failed two proficiency exams as an examiner in the FBI crime lab.  There is no record of those failures.  Counsel must ask for the results of the proficiency exams given in order to see if examiners are properly tested to determine if they can do their jobs correctly.

7. Copies of traceability documentation for standards and reference materials used during analysis, including unique identifications, origins, dates of preparation and use, composition and concentration of prepared materials, certifications or traceability records from suppliers, assigned shelf lives and storage conditions.

 

Chemical analytical instruments do not “tell the scientist the answer.”  The instruments simply provide data from which the analyst must infer the presence of particular analytes.  The data from these tests must be compared to data from the analysis of known materials or standards.  How is it that we “know” the identity of the standards?  Laboratories most often acquire standards from commercial sources which have gone to a great deal of trouble to analyze the material fully to determine specifically what the materials are.  The crime lab that “identifies” a material must be able to justify that identification through comparison with a standard or data acquired from a known standard.  Simply observing data and offering an opinion concerning the identity of a material is not good enough for science.  The opinion must be based on something other than “my vast experience in analyzing these types of materials.”

Standards come with records of purity and traceability data.  A scientist must be able to say that he has compared the data from an unknown with the data from a standard from a known source which the scientist can trace back to its origin and purity determination.   The scientist must also be concerned when using standards that the standards themselves have not decomposed.  In other words, what is the shelf life of the standard recommended by the producer of the standard.  That shelf life will depend upon storage conditions such as temperature and exposure to light and moisture.

8. Sample preparation records, including dates and conditions of preparation, responsible analyst, procedural reference, purity, concentration and origins of solvents, reagents, and control materials prepared and used, samples processed concurrently, extract volume.

Let us hypothesize that we are called to make a nitrate solution in water using potassium nitrate.  How did we prepare that solution?  When did we prepare that solution?  Who prepared that solution?  What is the original concentration?  Was the water pure?  How do we know the nitrate is pure, really potassium nitrate?  How do we know the origin of the material?  Referring to the certificate of analysis on a bottle of a Fisher Certified Reagent grade potassium nitrate found at the FBI crime lab in 1997 we see a lot number 745536 and a description of purity.  The lot number allows us to trace the material back to its origin.  The impurities listed below allow us to understand very well what other materials are present in our standard.  We see on the documentation that accompanies the bottle:

“Component                        Guaranteed Composition wt %

Fe (iron)                               .0001%

Heavy metals (as lead)                  .0001%

SO4 (sulfate)                           .001%

Na (sodium)                             .005%

Insoluble matter                        .001%

Cl (Chorine total)                      .002%

PO4 (phosphate)                         .0001%

Ca + Mg                                 .002%”

If we detect phosphate or sodium or calcium or magnesium during our analyses we know that these may have originated from the reagent grade potassium nitrate we used to make the solution.  Because nitrate is an oxidizing material, the solution may have a short shelf life and need to be stored in a cool environment.  There are so many questions which one must ask about preparing for an analysis before one can determine if the opinions rendered from the data are valid.

9. Copies of bench notes, log books, and any other records pertaining to case samples or instruments; records documenting observations, notations, or measurements regarding case testing.

In the author’s experience as a forensic consultant, this is one of the weakest areas in trial preparation where review is required of a forensic scientist.  Generally crime labs provide one-liner reports, short, to the point, and hiding all the data.  There is nothing for the reviewing scientist to review.  In a post conviction review, the forensic scientist with only the lab report with none of the supporting data must say to counsel that there is essentially nothing he can do.  All of the items listed in this paper are needed for a thorough review but counsel must at least start with the items in this item.  Let us choose as an example of a one-liner report to review: “Data from instrumental analysis of paint specimens Q3 and K1 is consistent with both of these paint specimens having originated from the same source.”

Forensic paint analysis can involve the use of x-ray powder diffractometry, Fourier transform infrared spectroscopy, Raman spectroscopy, scanning electron microscopy in conjunction with energy dispersive x-ray analysis, pyrolysis/gas chromatography mass spectrometry, ultraviolet/visible microspectrophotometry, optical microscopy and chemical spot tests.  All of these tests are complex.  Each instrument must be set correctly, functioning correctly, in good repair, not contaminated, and operated by competent scientists.  The analyses must at times follow in a valid sequence or data will be lost. Every aspect of this analysis must be reviewed or one cannot opine that the one-liner report above gives a valid interpretation of the data.  Any scientist reviewing the work product would need this information.

10. Instrument run log with identification of all standards, reference materials, sample blanks, rinses, and controls analyzed during the day/shift with subject samples (as appropriate: run sequence, origins, times of analysis and aborted run sequences).

 

Instruments in forensic crime labs are seldom if ever dedicated to one task.  Crime labs are generally severely underfunded, understaffed and underequipped.  A mass spectrometer that is used for drug analysis today may be used for explosives or paint analysis tomorrow.  Parameters are changed and rechanged.  Different operators sit before the instruments and can make mistakes that the next operator will not detect.  An instrument may be contaminated by the previous operator analyzing for the presence of cocaine and the technician who analyzed evidence in your case may detect cocaine but that cocaine was actually from the previous case.  If blanks, pure solvent without analyte, are not analyzed between samples, contamination of the instrument could lead to flawed results. 

11. Record of instrument operating conditions and criteria for variables, including as appropriate: Gas chromatograph column, instrument file identification, tuning criteria, instrument performance check (e.g ion abundance criteria), initial calibration, continuing calibration checks, calibration verification.

The scientific literature may describe a valid analytical scheme that the crime lab professes to utilize when in fact analytical instrumental parameters are actually different, gas chromatographic columns are different, tuning criteria and instrument performance checks are ignored, and there is no proper calibration.  An examiner who testifies that “The white powder was analyzed with a gas chromatograph/mass spectrometer” should not be scaring off counsel but opening the door to extensive examination of the exact protocol/parameters set on the instrument.  Temperatures set too high or too low, the wrong gas chromatographic column, electrons at the wrong energy level to properly break up analytes, and a myriad of other parameters can be make-or-break issues in the carrying of the burden of proof that a material is what it is purported to be.

 

12. Record of instrument maintenance status and activities for instruments used in subject testing, documenting routine and as-needed maintenance activities in the weeks surrounding subject testing.

             

Is that instrument broken?  How do you know?  In a 2001 trial in Pitt County, North Carolina, Dr. Richard Waggoner of the North Carolina State Bureau of Investigation crime lab, when asked on December 10, 2001 if the instrument used in the analysis of suspected cocaine was in good state of repair answered as follows26:

“Q.              So then, you do not know of your own personal knowledge, and it’s not reflected in what you have, which instrument was used?

A.               No, Sir.  It does not list that.

Q.               Sir, are you able to say whether or not that particular instrument that was used in this case has ever required any repair?

A.               I am not familiar with the maintenance record of that instrument, sir.

Q.               Are those available?

A.               They are in the laboratory.  Yes, sir.

Q.               Did you bring them with you?

A.              No, sir, I did not.

Q.              But they are available to you?

A.               They’re available to my supervisor.  I’ve not seen any of them myself.

Q.              To your knowledge, have any of these instruments required repair?

A.               They have in the past.  Yes, sir.

Q.              Do you know if this particular machine has required a repair?

A.               No, sir, I do not.”

Dr. Waggoner is fully aware that in order to know if the data is valid from an instrument he must know if that instrument is functioning correctly.  According to his testimony he did not conduct the analyses himself, did not watch the analyses being conducted and when he reviewed the work product of a colleague in order to determine if the work product was valid, he did not even know if the instrument used was functioning correctly.  But a one liner report was written and presented in court.

13.  Raw data for the complete measurement sequence (opening and closing quality control included) that includes the subject samples.  For GC-MS analysis, this would include: areas and retention times, injection volumes, dilution factors, chromatograms and mass spectra.  As prepared and as determined values for all quality control samples.

Modern analytical chemistry instrumentation is generally run by computers and data is collected in those computers.  There is no reason that one must accept the fact that forensic crime labs do not have data storage capabilities.  Paper print outs of mass spec and other instrumental data represent the data which may very well have been manipulated with computer algorithms/programs to take out “noise”, make the graph appear to be smoother, remove information, etc.. Counsel should demand the raw data which has not been manipulated in order that review may address the actual information collected rather than the forensic lab’s version of it. 

14. A description of the library used for spectral matches for the purpose of qualitative identification of controlled substances, including source(s) and number of reference spectra.

 

Following collection of data, the data is used to identify materials through comparison with previously collected data for many materials.  These comparisons are performed by computers which objectively give best choices among many possibilities found in spectral libraries.  James W. Shellow in “The End of A Confidence Game, A Possible Defense to the Impossible Drug Prosecution”27 provides us with a description of these libraries: “Forensic laboratories now possess infrared and mass spectrometers which contain computers with spectral libraries. These computers are programmed so that with the push of a button they will automatically search spectral data bases and compare the spectrum of the suspect drug with thousands of reference spectra.

“Comprehensive research on the computerized searching of spectra libraries was undertaken by Professor F.W. McLafferty and his colleagues at Cornell University.  These or similar automated comparison algorithms are incorporated in both infrared and mass spectrometers.  If such procedures are used, the computer will generate a list of compounds whose spectra are most similar to that of the suspected drug.  The computer will rank order these spectra and attach to each an arithmetic assessment of closeness of fit; this allows an objective estimate of the probability that the examined specimen is the suspected illegal drug.”

A favorite argument of forensic scientists is that even if the computer does not match the data with the actual material the analyst believes is present, computers cannot be trusted as well as human beings.  The computer algorithm that matches spectra may give a list of five materials or ten materials that are best fits.  A reviewer may very well find that despite the fact that the computer matches the unknown to substance A, the forensic scientist picks another choice from the list.  That disregard for the output of the computer algorithm provides fruitful ground for cross examination.  One would ask what specific reasons the examiner had for ignoring the “best match”.  There will generally be no sound answer other than “based on my experience.”

A way around having a large library of spectra result in the designation of a “wrong” material as the best fit for the data is to create a small library populated by very different types of materials therefore forcing a fit with the desired match.  Counsel should ask about the population of the spectral library.  An example would be a library populated only by drugs.  The analyst who has been told by the law enforcement officer who collected the evidence that it must be cocaine can use that small library of spectra and get a match.  However, if one uses the total spectral library available to instrument manufacturers and usually purchased by forensic labs, data from other materials may match the experimental data better, raising reasonable doubt.   

15. Copy of records documenting computation of illicit drug laboratory’s theoretical production yield, including the basis for the computation, and the algorithm used, as appropriate.             

Suspected illicit drug labs are found with precursor materials.  From the amounts of those precursors, forensic lab examiners determine theoretical yields of final product.  Counsel reviewing these opinions must have copies of the computer programs that calculate those yields as well as the process of determining the yields totally spelled out and based upon available scientific literature including information on proposed synthetic routes.  Fruit from this tree may very well be that the yields suggested may be dependent upon conditions of synthesis which the alleged illicit lab did not apply.    

16. Procedure(s) for operation and calibration checks of analytical balances used to weigh controlled substances.

 

As simple as the concept

of weighing evidence may seem, an analytical balance can be improperly operated and data from the balance misinterpreted.  Where the amount of illicit material seized can be a huge factor in sentencing, one needs to know whether the analyst truly knows how to utilize an analytical balance.  

17. Results of calibration checks and documentation of mass traceability for gravimetric determinations.

 

Does the balance which is used to measure weight actually function correctly or is it poorly calibrated or even broken?  How does the analyst know?  When an analytical balance is not working correctly, the fallout can be significant to many analyses.  Not only will evidence be misweighed but standards prepared wrongly and interpretations of data without proper foundation. 

18. Results of contamination control surveys for trace level analytes relevant to test methods at the time of analysis, including sampling design and analytical procedures.

 

If one is searching for nitroglycerine in a testing laboratory which tests for the presence of nitroglycerine on a regular basis, what may be found is not nitroglycerine which was on evidence before it reached the lab but nitroglycerine in the lab which contaminated the evidence when it was processed in the lab.  If one is searching for the presence of cocaine residue on an item, that cocaine residue found may have been put on the evidence by contamination from the lab conducting the analysis.  Forensic crime labs have ignored concerns about contamination in the past.  Materials which cannot be seen with the naked eye can still be detected and indicate culpability.  If not seen or noticed these materials can spread like a common cold, undetected before sensitive instrumentation is used.  Imagine an individual who investigates a methamphetamine lab, finds a lot of white powder, gets some of that powder on his hands, shoes, clothes. He returns to the crime lab, gets out of a vehicle which he has contaminated, opens a door to the lab contaminating the door handle, uses a phone which he contaminates, sits in a chair which he contaminates, shakes hands with friends who he contaminates, uses equipment which he contaminates, all without realizing the contamination vectors which he is responsible for.  Other lab employees open the door, use the phone, shake hands, sit in that chair, use equipment and soon the lab has a background level of methamphetamine on many surfaces.  Evidence from another case is submitted and processed on a contaminated table and methamphetamine is detected when that evidence is processed. The methamphetamine originated not from the evidence itself but from the lab.  Unless labs conduct regular audits for contamination, examiners cannot say whether residue detected originated from the lab or from the evidence.

19. Records and results of internal reviews of subject data.

 

Reports are peer reviewed in forensic labs.  The results of those reviews should themselves be reviewed.  Very possibly wording used by the examiner is changed during the review.  These changes may be very fruitful areas to explore during cross examination.

20.  Method validation records documenting the laboratory’s performance characteristics for qualitative identification and quantitative determinations of the controlled substance, to include data documenting specificity, accuracy, precision, linearity, and method detection limits.

 

Just because I give you an answer, that does not mean the answer is correct.  Of course you recognize that.  The fact that a scientist utilizes equipment with large names and complicated electronics to find an answer to a problem does not mean that the answer is correct.  The process by which a scientist determines if the method he is using is giving the correct answers to questions is protocol validation.  Protocols/methods must be validated, tested.  Otherwise the scientist is simply collecting data.  Validation studies for many materials which are analyzed by forensic labs have never been conducted.  Dr. Maureen Bradley, an FBI lab paint analyst testified in a civil deposition28 that:

“Q. Okay.  Now let’s assume you’ve run all six tests, all the tests you’ve described, and every one come...is consistent with, that you’ve seen consistent.  At that point, how many false negatives would show up.

A. I’m not certain I understand what you mean by false negatives.

Q. Okay.  In other words, excuse me, how many false positives would show up?  In other words, you run through your analysis and it’s come up comparable, comparable, comparable.  You’re done with it right.  But what’s the percentage that the two paints were not a match?

In other words, there’s some other explanation to why the two paints came up consistent with each other, such as two people had the same, went to the store and purchased the same paint and the same manufacturer at roughly the same time.  Do you know what is  the percentage of false positives?

A. No, I don’t know.

Q. Do you know if the laboratory has undergone an analysis of the percentage of false positives?

A. No I don’t.

Q. Do you know what the percent of reliability, without knowing the percent of false positives, do you know how reliable your testimony is...”

What one may infer here is that if Dr. Bradley, a Ph.D. chemist qualified by the FBI crime lab in the forensic analysis of paints, does not know the reliability of her opinions concerning paints then very probably no research has been conducted by the FBI concerning the validity of their forensic paint analysis program.   One must wonder, if the examiner does not know how many times she is wrong, when she is wrong, if she is wrong, how is forensic paint analysis evidence relevant or probative to finding of guilt?  If under Daubert the trial judge must determine whether the method has a known error and even the analyst does not know that error rate then any jury viewing this evidence will not be in any position to decide how much weight to assign to that testimony.

21. Copy of the laboratory’s Quality Manual in effect at the time the subject samples were tested as well as the laboratory’s most recent Quality Manual (however named; the document that describes the laboratory’s quality objects and policies).

 

The Quality Assurance manual outlines the methods one must have in place to determine the quality of the work product. Counsel required to review crime laboratory work product must have a copy of the quality manual which was in place at the time the evidence was analyzed and at the time of court.  These manuals will be a road map to ferreting out issues in the lab work product. A comparison of the two manuals, both that used when the evidence was analyzed and that when testimony is presented by the government, may also show differences which reflect discovery by the crime lab managers of problems within the lab in the past...problems which might affect a case at court.  

22. Copy of the laboratory’s ASCLD-LAB application for accreditation, and most recent Annual Accreditation Review Report, as appropriate.

 

U.S. crime labs can be accredited by the American Society of Crime Lab Directors-Lab accreditation group.  As the ASCLD name implies, crime laboratory directors review each other’s labs.  At present the accreditation process is viewed as proof that the crime lab is producing valid work product.  However that is not necessarily true.  The ASCLD-LAB process simply declares that a crime lab has in place that documentation which is required in order for an audit to be conducted successfully.  Virtually no crime labs have been fully audited to date.  Crime labs have simply refused to allow themselves to be subjected to audit.  The normal excuse used is that the crime labs do what no one else does or can do and therefore they must audit themselves.  That excuse flies in the face of the scientific method and renders labs using it useless.  Science is open.  Science is continually reviewing the “truths” of yesterday.  Science that exists in secret degrades.  The 2003 US DOJ IG inspection of the FBI crime lab’s DNA analysis29 program shows us that the ASCLD-Lab accreditation does not insure that a crime lab is producing valid work product.  The FBI was last accredited in 1997 by ASCLD-Lab.  Jacquelyn Blake, the FBI DNA technician who was found in 2002 to have failed to follow required scientific procedures while analyzing 103 DNA samples, was hired by the FBI after the 1997 ASCLD inspection and accreditation, produced her flawed work product for a number of months undetected and resigned while under investigation as a result of that poor work product.  It becomes very obvious that the ASCLD accreditation process does not insure quality work product.  Only a thorough audit will insure that work product.  The ASCLD accreditation process, however, is very valuable in that it means that the laboratory is finally saying publicly that it is prepared for an audit.  Now counsel just needs to conduct that audit.  Remembering the North Carolina crime lab’s Dr. Waggoner not even knowing if the instruments that were used to analyze for the presence of cocaine were functioning correctly leads one to realize that audit is necessary in every case involving forensic science.  

23. Statement of qualifications of each analyst and/or technician responsible for processing case samples to include all names, locations and jurisdictions of cases in which these personnel testified concerning the same substances found in the present case.

 

Professor James Starrs, in his article Mountbanks Among Forensic Scientists30 recounts numerous incidents of forensic scientists who overstated their credentials and lied about tests performed during testimony.  Among those individuals Starrs describes are the following:

David Bruce Tredwell passed himself off as having obtained bachelor of science and doctorate degrees in geology as well as having been a staff geologist and laboratory manager for a National Aeronautics and Space Administration Laboratory, all of which testimony was false.  Tredwell found himself testifying in the Love Canal environmental pollution litigation before the government moved to strike his testimony.

Supervisory Special Agent Thomas N. Curran, FBI Laboratory, was described in a 1979 Maine Supreme Judicial Court decision as lying under oath regarding tests he had conducted for the FBI Laboratory and reporting results of lab tests that he did not in fact conduct.  In a rape and murder trial in 1974 in the District of Columbia, Curran testified to having a bachelor's and master's degree in science when he never had acquired a graduate degree.  And in a FBI report of Jay Cochran dated February 5, 1975 to Mr. White, the FBI Laboratory Director, Cochran described Curran as "he chose to ignore the virtue of integrity and to lie when asked if specific tests were conducted."

Richard Zielinski of the Toledo Ohio Police Department Crime Laboratory misstated his academic credentials as having a bachelor's degree in pharmacy which he did not have.  He apparently never attended the FBI Academy school on handwriting as he claimed, was not familiar with infrared spectrometry, and never sent bullets to the FBI laboratory as he said that he did.  Zielinski also represented himself as having performed laboratory tests that he did not perform.

As we can see from the examples given above by Professor Starrs, counsel should never simply accept the word of experts concerning their credentials.  One should demand that the agency that presents the expert vouch for the credentials of that expert.  The expert who is found to have lied about his credentials immediately disqualifies any further opinions he might want to present to the trier of fact.  The US DOJ IG investigation of the FBI crime lab found that “experts” from that crime lab were testifying outside their areas of expertise.  Determining that an “expert” who is testifying about chemical analysis but has no scientific education, experience or training in chemical analysis can lend powerful weight to the argument that the testifier is not an expert at all.  This may seem ridiculously obvious but numerous attorneys in the past have simply accepted credentials or not even asked for them. 

24.  Copy of the laboratory’s ASCLD-LAB on-site inspection report, as appropriate, as well as any reports of on-site inspections by any other testing laboratory audit organization.

 

Forensic crime labs that have been accredited by the American Society of Crime Lab Directors-Lab group refuse to give up the results of the inspections.  ASCLD-Lab refuses now to even describe the inspection process and will never provide any information concerning the failures of crime labs.  The accreditation process is voluntary and ASCLD would not be allowed to inspect the labs if the labs knew that the results of the inspections would become common knowledge. That the labs refuse to provide any indication of their flaws and failure rates is indicative of the fact that they have something to hide and are not indeed, even scientific laboratories.  Triers–of-fact will not be blind to that fact.  The labs, by refusing to discuss failure rates raise the level of reasonable doubt.

25.  Copy of internal audit reports generated during the period subject samples were tested.

 

As time goes on and defense counsel learns to closely question forensic work product, these internal audit reports will come under closer and closer scrutiny.  What now passes for an internal audit will tomorrow be something to laugh at.  It is obvious that the internal audit process that led to the discovery of the FBI’s Jacquelyn Blake’s flawed work product was not functioning if it allowed Blake to produce flawed product for many months.  It is obvious that any internal audits in the crime labs described above have not functioned as intended.  Internal audits should not be the period at the end of the sentence but simply a comma, in preparation for external independent testing laboratory audits.

26.  List of capital instrumentation in the laboratory at the time subject testing was performed, including manufacturer, model number, and major accessories.

 

Questions concerning the extent of testing of materials before opinions can be rendered may require a knowledge of what kinds of equipment crime labs actually have.  One lab may test for the sameness of two paint samples with three tests and the next with seven tests.  The two labs cannot generally render the same opinion about sameness.  Also the technician who decides not to conduct analyses for whatever reason, who engages in “protocol drift” may be discovered once a reviewer is aware of the total kinds of instrumentation available.  While the author was employed at the FBI crime lab a great deal of pressure was applied to examiners to write one-liner reports so as not to wave flags to possible problems which defense experts might ferret out.  Attempts to list in the laboratory report the types of instruments utilized in an analytical protocol were strongly resisted both by examiners who eventually were found to be testifying outside their areas of expertise and by managers who knew that more complete reports would open the doors to discovery of problems within the lab.

27. Production throughput data for the drug testing section: numbers of tests performed per month or per year, and the number of Full Time Equivalent personnel in the drug testing section of the laboratory.

 

As has been noted elsewhere in this chapter, forensic crime labs are generally understaffed and overtasked.  Following protocols takes a certain amount of time which generally cannot be shortened without taking short cuts and not following protocols carefully.  Determining if staff are overworked and therefore more prone to error is an important piece of data to have to guide counsel to understand the weakness of the forensic lab work he is facing.

Just as we as attorneys ask in-depth questions concerning legal aspects of all facets of a criminal case, so we should be asking in-depth questions concerning forensic laboratory work product. We have many examples of failures of forensic crime labs gone undetected by our justice system for years due possibly to the misunderstanding that these are unaddressable issues. It is both possible and absolutely necessary for counsel defending and even prosecuting to know if the work product from crime labs is valid.  It is obvious that because crime labs have refused to submit to outside independent review in the past, there is a concern within those labs of having their failures discovered.  The crime lab that refuses to provide clear and complete answers to the questions provided above should be viewed as hiding something and therefore creating reasonable doubt concerning its own work product.  Any successful and valid scientific inquiry requires openness and in-depth peer review.  That is particularly important when the work product of science is being used in our justice system.

Chapter 3: Cross Examination Questions Exposing Fraud and Incompetence as well as Invalidity, Inaccuracy,  and Nonspecificity of Tests and Lack of Error Rates and  Inadequate Proficiency Testing

 

THE MODIFIED DUQUENOIS-LEVINE TEST IS INCONCLUSIVE - OTHER SUBSTANCES CAN GIVE FALSE-POSITIVES

Now, the Duquenois Levine test is a color test, right?

And you screen for marijuana by looking for a shade of purple, correct?

But when some other substances besides marijuana are tested according to the exact same procedure we've just outlined, the layer of chloroform also turns violet, correct?

When "Chinese mother wart" is tested, the chloroform sometimes turns violet, doesn't it?

Are you familiar with the United Nations study on marijuana?

They concluded that the Duquenois-Levine test on substances is completely unrelated to marijuana?

And they got false positives?

They tested Arthemisia drancunculus?

It's not related to marijuana? And it tested positive?

They tested Eucalyptus glabulus labill?

It's not related to marijuana? And it tested positive?

And they tested several common herbs?

Herbs like, rosemary?  Thyme?  And sage?

They're not related to marijuana?

And these common household herbs tested positive for marijuana using the Duquenois-Levine test?

THIN LAYER CHROMATOGRAPHY

Thin Layer Chromatography is a method that was designed for separating compounds, correct?

This test was not designed for identifying compounds?

A Thin Layer Chromatography test is performed on a plate covered with silicon gel?

You used such plates in testing the alleged marijuana in this case? Were the plates predried?

IF "NO",

What method was used to desiccate (meaning "dry") the plates?

The plates are dried by placing them in a container with an agent something like the packages they put in vitamin bottles to keep them dry.

The Thin Layer Chromatgraphy test cannot be performed accurately unless the plates are dried properly, correct?

The test is performed by comparing the reaction on the plate of a known sample with an unknown sample?

The unknown sample must be prepared in a certain way?

You mash up a small amount of the unknown sample and mix it with a solution? What is the proportion of solution to unknown sample?

Let's talk about the known sample.

Who was the manufacturer of the known sample? When was it prepared?

How long had the sample been open?

In fact they will denature if not stored properly? (namely, in dark bottles and away from the light).

How do you store chloroform and methanol?

And you checked the expiration date on the chloroform and methanol? What was the expiration date?

The Thin Layer Chromotagraphy is not a quantitative test?

Other substances will have positive reactions as well? Coffee?

Basil?

Tobacco?

You kept no record of the procedures you used in performing this test? There is no record that you actually checked the expiration dates?

There is no record that you checked the proportions used in preparing the solutions?

A test performed twice has a higher likelihood of accuracy? But you didn't double check this test, did you?

A gas-liquid chromatograph is a different type of test, correct? IF "NO", see cross on GLC.

IF "YES":

In fact, it is a far more accurate kind of test than the TLC?

But you didn't perform this more accurate test, did you?

QUALITATIVE VERSUS QUANTITATIVE TEST

Some tests are qualitative test.

Some tests are quantitative test.

A qualitative test detects the presence of a controlled substance in a sample. But it doesn't tell you how much is there.

It doesn't measure the concentration of a controlled substance in the sample

It can't tell you the amount of pure drug in a sample.

A quantitative test, on the other hand, involves measurement.

A quantitative test can be used to measure the amount of a controlled substance in a sample.

A quantitative test allows you to calculate the concentration of a controlled substance.

A quantitative test allows you to calculate the amount of pure drug in the sample

Let's go back to the three tests you ran on the substance in this case.

VISUAL INSPECTION WITH A MICROSCOPE.

You look for certain characteristics under the microscope.

That's a qualitative test.

MODIFIED DUQUENOIS LEVINE REAGENT TEST

 

You look for a color reaction.

That's also a qualitative test.

THIN LAYER CHROMATOGRAPHY

 

You look for a spot pattern That's also a qualitative test

So, all three of the tests that you ran on the substance in this case were qualitative tests.

You didn't run any quantitative tests on the substance in this case.

You didn't take any measurements of the amount of marijuana alleged to be in the substance in this case.

You filled out the DEA-7 in this case.

There's box 27, "Lab No."

And you filled in that box.

Then there's box 28, "Active Drug Ingredient."

And you filled in "Marijuana" in that box.

And then the next three boxes under the heading. "Concentration."

There's box 29, for "Strength"

That's where you would normally put in a percentage

You left that blank

Because you don't know the strength of marijuana in the sample

Then there's box 30, for "Measure"

You left that blank because you didn't take any measurements of the amount of marijuana in the sample.

Then there's box 31, "Unit"

That would be for the unit of measure.

Again, blank.

Then there's box 32, "Amount of Pure Drug."

Again, blank.

Because you don't know the amount of marijuana in the sample.

 

 

CONDITION OF THE LABORATORY

The condition of the laboratory is relevant to assessing whether the tests are accurate.

The laboratory must be kept clean

An overcrowded lab can compromise accuracy (efficiency)

The risk of mishandling evidence increases in a laboratory where the usable space falls below adequate levels.

The DEA laboratory does not have as much usable space as it needs right now Boxes of exhibits are piled up and lined along the hallways of the laboratory That is not how the laboratory was originally designed

It is not an ideal design to have boxes of exhibits piled up and lined along the hallways

Knowing the condition of the laboratory is relevant information for anyone who wanted to assess the results of the tests performed.

As a scientist, you wouldn't want to vouch for results of tests unless the laboratory were in proper condition.

PROFICIENCY RATINGS

 

The DEA lab must conduct proficiency tests.

Proficiency tests are conducted to ensure the accuracy of test results. To ensure that you are not getting false positives.

How often must proficiency tests be conducted?

Would you know if there have been deficiency reports filed against the lab by inspection teams?

Have there been any deficiency reports filed by inspection teams in the past year?

Have there been deficiency reports relating to improper storage of chemicals or solvents of the sort used in the tests performed in this case?

Have there been any deficiency reports filed by inspection teams relating to improper maintenance of machines which were used to conduct the tests performed in this case?

Have there been any deficiency reports filed by inspection teams related to inadequate storage space at the lab over the past year and a half?

Have there been any deficiency reports filed by inspection teams related to inadequate useable space at the lab over the past year and a half?

QUESTIONS ABOUT STORAGE

 

Chemicals and exhibits should be stored in places that are sealed off from areas where testing is done?

This is to ensure that if there is leakage of some kind, it won't affect the tests?

The exhibits in the lab are kept in plastic bags? Plastic can be ripped or punctured?

If the heat seal is applied wrong, it could weaken the structure of the bag? The exhibits which come into the lab are often stored in the hall in boxes? Those boxes are near the laboratory testing area?

It is usually several weeks between the time a plastic bag comes in and its contents are tested?

Is there a procedure that is followed when each individual bag comes in to make sure there are no small holes or tears?

IF "YES", a notation is kept somewhere indicating that the bag is airtight? Marijuana is sometimes ground or worn down to tiny flakes?

In the last several years there have been incidents of leakage in the lab? Protocols were in place to ensure that something like that didn't happen? But leakage happened anyway?

Were storage or handling protocols of the lab changed after that contamination incident?

Have there been other incidents of known leakage involving marijuana which have occurred in the last year?

Possible that incidents occurred that you are unaware of?

WORKSTATION

You have a workstation where you perform these tests? (a place where you put the substances your testing while going back and forth to the various machines you use?)

On an average day, you share the room where your workstation is located with several other chemists?

How many?

And they conduct approximately as many tests as you conduct? How large is that room?

MACHINES

The machines in the lab must be in good repair? They must be properly calibrated?

The parts of the machine that come in contact with the material being tested must be completely uncontaminated?

The machines must be checked regularly to ensure that they are capable of producing accurate results?

One of the ways that is done is by running blind samples?

Another way that is done is by having a check-up or maintenance schedule? Another way that it's done is by having a cleaning procedure in place?

Knowing if the machines were in proper condition would be relevant to your assessment of the accuracy of these kinds of tests which were done?

It would be relevant information for anyone who wanted to assess the results of those tests?

As a scientist, you wouldn't want to vouch for results of tests like those conducted in this case unless the machines which were used were in proper condition?

What can you tell the court about the cleaning, repair, and maintenance of the microscope that you used to examine part of the substance in this case back on              ?

What can you tell the court about the cleaning, repair, and maintenance of [that machine] that you used to conduct a thin layer chromatography test on part of the substance in this case back on November 19, 1997?

CHEMICALS OR SOLVENTS USED

 

You used chemicals or solvents in the tests that were performed in this case? Those chemicals or solvents have an expiration date?

They have special requirements for proper storage?

What are those requirements?

The test would be unreliable if the chemicals or solvents used in the tests were out of date?

The test would be unreliable if the chemicals or solvents used in the tests were improperly stored?

Knowing if the chemicals and solvents used were in proper condition would be relevant to your assessment of the accuracy of these kinds of tests done in this case?

As a scientist, you wouldn't want to vouch for results of tests like those conducted in this case unless the chemicals and solvents that were used were in proper condition?

What chemicals or solvents did you use in the visual test with the microscope? What was the expiration date of the chemical that you used?

What can you tell the court about how that particular bottle of              had been stored?

What chemicals or solvents did you use in the Thin Layer Chromatography test?

What was the expiration date of              [the chemical that you used]?

What can you tell the court about how that particular bottle of              had been stored?

SCALE

The scale you use to weigh substances is extremely sensitive.

Bumping it could throw it off.

Wind could throw it off.

Vibration could throw it off.

A slip of the hand could throw it off.

Training is needed to get an accurate result with such a sensitive instrument.

A scale has to be properly maintained in order for it to produce accurate results.

The scale must be kept clean.

Knowing the condition of the scales used would be relevant to your assessment of the accuracy of the kinds of tests which were done n this case.

The condition of the scales would be relevant information for anyone who wanted to assess the results of those tests.

As a scientist you wouldn't want to vouch for results of control tests unless the scales used were in proper condition.

What can you tell the court about the condition of the scale when you tested the substance in this case on November 19, 1997?

AMOUNTS TESTED EXTREMELY SMALL

Now, Ms. Greer, some of the tests which you conducted in this case are pretty sophisticated, wouldn't you say?

IF "NO": Well, a person without the proper training, or who didn't have the proper materials needed for the tests, or who conducted them in an improper environment, wouldn't be very likely to get an accurate result, would they?

And any amounts being considered here are being weighed n milligrams, right? And a milligram is about the size of a single grain of sugar, right? And the scales used to weigh those small amounts are extremely sensitive? In fact, you could weigh a speck of dust with those scales, couldn't you?

And it's fair to say, isn't it, that given the sophistication of the machines and the techniques involved, and the small amounts we're dealing with, that even a small mistake can lead to incorrect results?

GLASSWARE

 

The lab uses glassware when conducting tests.

That glassware must be cleaned in acid or autoclaved to prevent contamination. The glassware must be checked periodically for contamination.

You also sometimes use disposable glassware.

The packaging on the disposable glassware must be carefully checked for breaks in the seal of the packaging.

Contamination is common when residue material is left behind on the glassware Some proteins stick to glassware.

This makes the cleaning process more difficult.

Minute amounts of residue can change results dramatically.

You used glassware in your three tests of the substance in this.

What pieces of glassware did you use in the microscopic examination?

What can you tell the court about the condition and cleaning of this glassware?

What pieces of glassware did you use in the modified Duquenois-Levine test?

What can you tell the court about the condition and cleaning of this glassware?

What pieces of glassware did you use in the microscopic examination?

What can you tell the court about the condition and cleaning of this glassware?

 

MEASUREABLE AMOUNT

The green leafy substance weighted              grams?

You determined this by weighing the substance? If at all?

And after you weighted the substance, you performed a qualitative analysis on it, is that correct?

You removed a small amount of the substance and performed certain qualitative test?

You don't know if that substance contained other vegetable matter?

[Or, in the alternative, you can't say that the substance didn't contain...] You don't know if it contained basil?

You don't know if it contained tea you'd find in a household cupboard?

And, according to the scientific literature, all these substances can give false positives for marijuana?

So you can't be sure that the substance you tested was, in fact, marijuana? It's possible that it was some other vegetable matter entirely?

DEA DEFINITION OF MARIJUANA INCLUDES MORE THAN D.C. CODE'S DEFINITION OF MARIJUANA

How do you define "marijuana"?

Looking at the DEA Chemists analytical lab manual entry would refresh your recollection, wouldn't it?

SPECIFICS ABOUT CASE

 

Before beginning the tests you took a sample from each of the ziplocks? And about what size sample did you take from each of the ziplocks?

And you took this same size of a sample from each of the ziplocks for each of the three tests that you ran in this case?

So that would make              samples?

And each of these samples was approximately              mg in weight or size?

So that would mean you took a total of approximately              mg/g out of the

ziplocks?

The total weight of the substances contained in the ziplocks at the time of seizure was g   according to the DEA-86?

And the reserve weight, or what was left in the ziplocks after testing, was g according to the back of the DEA-86?

So that would mean that a total of approximately              g was removed from the point of seizure to the conclusion of all of the tests according to the DEA-86?

About how long does it normally take you to do a D/L test? About how long does it normally take you to do a TLC test?

About how long does it normally take you to do a microscopic analysis? And you did each of these tests              times, correct?

So it should have taken you approximately              hours to complete all tests in this case?

You began testing the material in this case on              , correct? About what time did you begin?

And did you finish on that day?

According to the back of the DEA-86, all tests had been completed and the evidence was re-sealed on              , 1998?

Did the testing span the period of two days?

Was the evidence resealed before you left the laboratory on              1998?

IF "YES":

There would be documentation regarding the resealing of this evidence. Where is this documentation?

IF "NO"

So the evidence was left open?

Where and how did you store the portion of the evidence that you had already tested?

Where did you store the open portion of the evidence that remained to be tested?

It is not normal procedure to leave evidence open over night in the laboratory, is it?

NO PARTICULAR RECOLLECTION OF THE TESTS DONE ON THIS SAMPLE

 

In the course of your employment at the DEA laboratory, you've analyzed    of substances suspected of being controlled substances?

And in the course of your employment at the DEA laboratory, you've analyzed   of substances suspected of being marijuana?

And to examine each of those substances suspected of being marijuana, you've conducted more than one test, right?

You've conducted three different tests on each substance suspected of being marijuana?

Would it be fair to estimate that since the start of the year, you've examined dozens of substances suspected of being marijuana?

And a majority of those substances suspected of being marijuana came to you in little ziplock bags, right?

There's nothing particularly memorable about those little ziplock bags, is there?

And there's nothing particularly memorable about the substances found inside those little ziplock bags, is there?

You analyzed the alleged controlled substance for this case back on              1998?

Almost                months ago?

Did you review any notes or reports before coming to court to testify today? What did you review?

And that's because without referring to[your notes or your report], you have no recollection of what you examined and what results you obtained back on November 19, 1997, do you?

NO KNOWLEDGE OF CHAIN OF CUSTODY/POSSIBLE CONTAMINATION PRIOR TO ARRIVAL AT DEA LAB

 

You prepared a certificate of chain of custody for the alleged controlled substance in this case?

You are only responsible for the chain of custody of the substance once it has arrived at the DEA laboratory?

You don't seize substances out on the street?

You don't know anything about the integrity of that evidence before it arrives at your laboratory. Do you?

Once you start handling the evidence, when you first open up the little ziplock bag of an alleged controlled substance to run tests on it, do you wear gloves?

The same thing could happen if a police officer handles that evidence without gloves on?

If a police officer has some marijuana on his hand, and he takes a bag of plain old regular lawn grass from someone, and that opens up that bag, and reaches in with that hand, that could contaminate the evidence inside the bag?

It would now have marijuana in it where it didn't before?

And if a substance that does not contain any marijuana to begin with has been contaminated with marijuana prior to its arrival at your laboratory, your test results for that substance would be positive for marijuana, right?

The results would be positive even though the original substance didn't contain any marijuana? That's because the validity of your test results depends on the integrity of that evidence being safeguarded at every step of the way, right?

WORKING FOR DEA = PRO-PROSECUTION BIAS

 

How long have you worked as a forensic chemist at the DEA Mid-Atlantic laboratory?

You receive your paycheck from the Drug Enforcement Agency? The Drug Enforcement Agency is a law enforcement agency?

The main concern of the Drug Enforcement Agency is the spread of illegal drugs in the United States?

The mission of the Drug Enforcement Agency includes a reduction in drug trafficking?

Fighting against drug trafficking?

Investigating drug traffickers?

Gathering evidence against drug traffickers? Making arrests of drug traffickers?

Seizing drugs?

And assisting in the prosecution of drug traffickers? You agree with those goals? Through your work as a forensic chemist at the DEA Mid-Atlantic laboratory, you help further this overall mission of the DEA?

In May 1996, the administrator of the Drug Enforcement Agency was Thomas Constantine?

In that month, Mr. Constantine testified before a Senate Appropriations Committee Subcommittee in order to seek increased funding for the DEA?

Mr. Constantine testified that the philosophy of the Drug Enforcement Agency is that the DEA has an obligation to the American people to improve their quality of life by removing violent drug dealers from their communities?

Do you subscribe to that philosophy?

UNDERMINE EDUCATIONAL QUALIFICATIONS

What is your educational background?

Where did you go to college?

When did you receive your college degree? What was your college degree in?

Did you have any formal education after college? What is your background in analytical chemistry? What is your background in organic chemistry? What is your background in physical chemistry? What is your background in pharmaceutical chemistry? What is your background in biochemistry? What is your background in botany?

UNDERMINE PROFESSIONAL BACKGROUND

Have you ever taught any courses in the field of chemistry? Have you ever published any books on chemistry? Have you ever published any articles on chemistry? Have you ever delivered any lectures on chemistry?

Are you a member of any professional organizations related to forensic chemistry?

Are you a member of the American Chemical Society?

Are you a member of the Mid-Atlantic Association of Forensic Scientists?

UNDERMINE TRAINING AND ON THE-JOB EXPERIENCE

What kind of training did you receive at the DEA Mid-Atlantic Laboratory with respect to the analysis of alleged controlled substances?

What kind of training did you receive there specifically with respect to the analysis of marijuana? Has your work at the DEA lab been subject to review?

Has there been any verification of your skills in the analysis of marijuana? Have you had any other training related to the analysis of marijuana?

How many alleged controlled substances have you analyzed since you started working at the DEA lab?

How many substances alleged to be marijuana have you analyzed since you started working at the DEA lab?

How many times have the results of your tests on substances alleged to be marijuana been negative or inconclusive?

HYPOTHETICAL

Now, speaking to us as a scientist, you would say that there's a difference between an opinion and a fact, correct?

And what's the difference?

And there's a difference between a hypothesis and a conclusion?

And a conclusion is a hypothesis which has been rigorously examined?

And that doesn't just include the theory - that includes the protocols designed to prove that hypothesis, correct?

And even if the protocols are acceptable, if those protocols weren't followed, then the results can't be relied on, correct?

And a rigorous examination of a hypothesis can only be conducted where all the facts relating to that hypothesis are known, correct?

Now when someone publishes results in the field of science, he or she assumes that those results won't be considered valid unless they can survive rigorous scrutiny, right?

Now, I'm going to give you a hypothetical - let's say that I tested a substance, and said that it was conclusively not cocaine, and that beyond a reasonable doubt it was not marijuana, and you were part of the scientific community that was called upon to examine my hypothesis.

One of the first things you'd question is my training as a scientist, correct?

Let's say I graduated cum laude from Mount Holyoke College with a major in chemistry, I did graduate work in organic chemistry at UCLA, and I was a Phi Beta Kappa - that would be a good start, wouldn't it?

But that's not all you'd want to know, is it?

You wouldn't want to know just that my education was generally sound, but that my training qualified me to conduct the specific tests I relied on, and to draw accurate conclusions from those tests, right?

And in order to examine that training, you'd want to know which courses I took which were relevant to each of those tests, right?

And you'd want to know what training I'd received in each of those tests? Because someone off the street couldn't walk in and perform a mass spectrometry analysis, could she?

She'd have to have a sufficient background in chemistry and math?

And she would have to be trained in how to use the machines specific to that laboratory, correct? And if one weren't trained appropriately, that could lead to inaccurate conclusions, right? In fact, if the training is bad, the tests might e faulty, right?

And evidence of poor training alone might cast doubt on someone's scientific conclusions, right? So if you were trying to assess the reliability of the results from a specific laboratory, you'd want to know what kind of training was given to the scientists of that laboratory concerning each type of test you were examining, right?

So if there was a course of training required at that laboratory, you'd want to be able to assess how thorough that training was, and if it was appropriate for the kinds of tests which were being conducted with those specific machines, right?

And if there were any training manuals that laboratory used with regard to conducting these specific tests, that could well affect how those tests were conducted, right?

So those training manuals would be relevant to your inquiry into the reliability of those test, right? And any memoranda which followed up on that training manual would also be relevant to your inquiry, right?

Now, let's say you and your team of neutral scientists who were examining my conclusions asked to look at the material I was given to read in the course of my training to conduct each of the tests I say were done, and I refused to hand them over to you. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

And let's say you wanted to take an inspection tour of the laboratory, and I told you, you couldn't come in. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

And let's say you asked me for whatever documents I had on hand concerning the storage, viability and expiration dates of chemicals and solvents used in the tests I conducted, and I were to refuse to comply. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

And let's say that you and your team neutral scientists requested documentation concerning the maintenance of the machines used in those tests, and I said no, you can't have them. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

And let's say that you and your team of neutral scientists requested documentation concerning the maintenance of the machines used in those tests, and I said no, you can't have them. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

And let's say that you and your team of neutral scientists requested documentation concerning the cleaning of the machines used in those tests, and I said no. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

And let's say that you and your team of neutral scientists requested documentation concerning the maintenance of the machines used in those tests, and I said no, you can't have them. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

And let's say you asked for documentation concerning the accuracy of those machines, and I said, no. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would instill doubt?

And let's say you'd heard that the laboratory space was seriously overcrowded, in your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

Let's say that you'd learned that bags of evidence came in with six ziplocks in them, and left with seven in them. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

Let's say that you'd learned that stored containers which were there to be tested had exploded in the lab, and I wouldn't give you any reports showing how this took place, or what procedures were implemented to prevent it from happening again. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

Let's say you asked to see the most recent self-evaluation done by my laboratory, and I said no. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions or would it instill doubt?

Or you asked to see the last on-site inspection report done by a team of trained inspectors, and I wouldn't let you have it. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt?

Let's say you asked to see the last full 5-year inspection report filed by the Laboratory Accreditation Board of the American society of Crime Laboratory Directors, and I refused to let you see it. And I wouldn't turn over the annual inspection reports and reports for deficiencies, either. In your opinion as a member of the scientific community, would that instill confidence in the accuracy of my conclusions, or would it instill doubt/

So, in this hypothetical, if you were a member of the inspection team, given these circumstances, would you certify as a trained scientist that my conclusions were valid?

EXPOSE LACK OF FAMILIARITY WITH SUBJECT MATTER

What is the scientific name for marijuana?

[Cannabis sativa L. - there is also literature support for the existence of other species.

Cannabis indica, Cannabis rederalis]

In what plant family is the genus Cannabis classified?

[Cannabinaceae]

How many other plants are found in the Cannabinaceae family?

[Most taxonomists say at least four. Some say more; some say less.]

Is marijuana a monoctyledon or a dicotyledon?

[Dicotyledon]

Is the marijuana plant annual or perennial?

[Annual]

Is the marijuana plant dioecious?

(dioecious = having male and female flowers borne on separate plants) [Yes.]

What are the dimensions of marijuana seeds?

[About the size of the seeds in an apple.]

Could you explain what cystolith hairs are?

[Look like little bear claws under the microsope - contain a deposit of calcium carbonate at their base.]

How many other plants have cystolith hairs?

[At least 600 other species of dicotyledons alone.]

How many courses have you had in plant taxonomy?

Is it therefore fair to state that you are not a plant taxonomist and that you are unfamiliar with plant taxonomy?

And you are therefore not qualified to give us a scientific opinion as to the classification of plants, are you?

[IF "YES"]:

What is the largest single taxonomic category into which marijuana falls?

Well, the largest category is a kingdom, is it not? There is a plant kingdom and animal kingdom, isn't that right? Marijuana falls in the plant kingdom?

What is the next largest taxonoic category after kingdom?

[Phylum.]

What phylum does marijuana fall into?

What is the next largest taxonomic category after phylum?

[Class.]

What class does marijuana fall into?

[Cannabinaceae ]

What is the next largest taxonomic category after class?

[Order.]

What order does marijuana fall into?

What is the next largest taxonomic category after order?

[Family.]

What family does marijuana fall into?

[Dicotyledon.]

What is the next largest taxonomic category after family?

[Genus.]

What genus does marijuana fall into?

[Cannabis]

ACCREDITATION

 

Which organizations have accredited the DEA laboratory to conduct examinations of suspected controlled substances like cocaine or marijuana?

Would you say the requirements are minimal for a laboratory to be accredited?

What sort of requirements are there for a laboratory to be accredited?

Your position is that conducting an analysis by performing all three tests can conclusively determine if plant material is marijuana?

These three tests are screening tests.

Meaning that they help a chemist narrow down the possibilities of the identity of a substance?

The modified Duquenois-Levine Reagent test is actually the field test that is used by the Metropolitan Police Department for substance suspected of being marijuana, right?

But it's understood that when the police get a positive test for marijuana with a field test, that's just a preliminary result, right?

Neither of these three tests standing alone can definitively identify marijuana can they?

Because none of these three tests conclusively proves that a substance is marijuana?

There is a more rigorous test that can be used to conclusively determine if plant material is marijuana, correct?

That's the GC/MS test, correct?

You didn't perform that test on the substance in this case, did you?

Okay, let's talk more specifically about each of the three tests you performed on the substance in this case...

Other substances will have positive reactions as well? Coffee?

Basil?

Tobacco? (I hope)

You kept no record of the procedures you used in performing this test? / There is no record that you actually checked the              iration d

There is no record that you checked the proportions used in preparing the solutions?

A test performed twice has a higher likelihood of accuracy? But you didn't double check this test, did you?

A gas-liquid chromatograph is a different type of test, correct?

IF "NO", see cross on GLC.

IF "YES":

In fact, it is a far more accurate kind of test than the TLC?

But you didn't perform this more accurate test, did you?

QUALITATIVE VERSUS QUANTITATIVE TEST

 

So after you examine the sample for the two kinds of hairs, you add a few drops of hydrochloric acid the preparation and recover the sample with a cover glass?

You look for an effervescence under the microscope?

But other substances can produce the same effervescence when a few drops of

hydrochloric acid are added to them?

For example, nettles? And catnip?

So just because a substance effervesces after you add a few drops of hydrochloric acid to it doesn't mean that it's marijuana?

So did you test for the presence of these other substances?

THE MODIFIED DUQUENOIS-LEVINE TEST IS INCONCLUSIVE - OTHER SUBSTANCES CAN GIVE FALSE-POSITIVES

 

Now, the Duquenois-Levine test is a color test, right?

And you screen for marijuana by looking for a shade of purple, correct?

But when some other substances besides marijuana are tested according to the exact same procedure we've just outlined, the layer of chloroform also turns violet, correct?

When "Chinese mother wart" is tested, the chloroform sometimes turns violet, doesn't it?

Are you familiar with the United Nations study on marijuana?

They concluded that the Duquenois-Levine test on substances completely unrelated to marijuana?

And they got false positives?

They tested Arthemisia drancunculus?

It's not related to marijuana? And it tested positive?

They tested Eucalyptus glabulus labill?

It's not related to marijuana? And it tested positive?

And they tested several common herbs?

Herbs like, rosemary?

Thyme?

And sage?

They're not related to marijuana?

And these common household herbs tested positive for marijuana using the Duquenois-Levine test.

QUALITATIVE VERSUS QUANTITATIVE TEST

Some tests are qualitative testss.

Some tests are quantitative test.

A qualitative test detects the presence of a controlled substance in a sample. But it doesn't tell you how much is there.

It doesn't measure the concentration of a controlled substance in the sample

It can' tell you the amount of pure drug in a sample.

A quantitative test, on the other hand, involves measurement.

A quantitative test can be used to measure the amount of a controlled substance in a sample.

A quantitative test allows you to calculate the concentration of a controlled substance.

A quantitative test allows you to calculate the amount of pure drug in the sample

Let's go back to the three tests you ran on the substance in this case. Visual inspection with a microscope. You look for certain characteristics under the microscope. That's a qualitative test.

Modified Duquenois-Levine Reagent Test.

You look for a color reaction.

That's also a qualitative test.

And Thin Layer Chromatography.

You look for a spot pattern

That's also a qualitative test

So, all three of the tests that you ran on the substance in this case were qualitative tests.

You didn't run any quantitative tests on the substance in this case.

You didn't take any measurements of the amount of marijuana alleged to be in the substance in this case.

You filled out the DEA-7 in this case.

There's box 27, "Lab No."

And you filled in              in that box.

Then there's box 28, "Active Drug Ingredient."

And you filled in "Marijuana" in that box.

And then the next three boxes under the heading. "Concentration."

There's box 29, for "Strength"

That's where you would normally put in a percentage

You left that blank

Because you don't know the strength of marijuana in the sample

Then there's box 30, for "Measure"

You left that blank

Because you didn't take any measurements of the amount of marijuana in the sample.

Then there's box 31, "Unit"

That would be for the unit of measure.

Again, blank.

Then there's box 32, "Amount of Pure Drug."

Again, blank.

Because you don't know the amount of marijuana in the sample.

CONDITION OF THE LABORATORY

 

The condition of the laboratory is relevant to assessing whether the tests are accurate.

The laboratory must be kept clean.

An overcrowded lab can compromise accuracy (efficiency)

The risk of mishandling evidence increases in a laboratory where the usable space falls below adequate levels.

The DEA laboratory does not have as much usable space as it needs right now.

Boxes of exhibits are piled up and lined along the hallways of the laboratory That is not how the laboratory was originally designed.

It is not an ideal design to have boxes of exhibits piled up and lined along the hallways.

Knowing the condition of the laboratory is relevant information for anyone who wanted to assess the results of the tests performed..

As a scientist, you wouldn't want to vouch for results of tests unless the laboratory were in proper condition.

Cystoliths:

Nakamura didn't study the distribution of species other than marijuana that have cystoliths.

Has the DEA?

Nakamura didn't study how often plants that have cystoliths are found growing in proximity to marijuana.

Has the DEA?

Nakumura didn't study how often fragments of plants other than marijuana that have cystoliths are found in bags of plant material seized by police officers in the United States, much less in the District of Columbia?

Has the DEA?

D-L Test

In terms of the D-L test, Nakamura didn't study the distribution of species other than marijuana that yield colors similar to that of marijuana.

Has the DEA?

In terms of the D-L test, Nakamura didn't study how often plants other than marijuana that yield similar colors are found growing in proximity to marijuana.

Has the DEA?

In terms of the D-L test, Nakumura didn't study how often plants whose fragments yield similar color results are found in bags of plant material seized by police officers in the United States, much less in the District of Columbia?

Has the DEA?

TLC:

In terms of the TLC, Nakamura didn't study the distribution of species other than marijuana that yield results similar to that of marijuana.

Has the DEA?

In terms of the TLC, Nakamura didn't study how often plants other than marijuana that yield similar results are found growing in proximity to marijuana.

Has the DEA?

In terms of the TLC, Nakumura didn't study how often plants whose fragments yield similar results are found in bags of plant material seized by police officers in the United States, much less in the District of Columbia?

Has the DEA? Combination:

In terms of three classes plant materials

- plant material other than marijuana that yield color results similar to marijuana using the D-L test

- plant material other than marijuana that have cystolith hairs

- plant material other than marijuana that yield similar results in a TLC test

Nakamura didn't study how often plants from all three of these three categories are found growing in proximity to marijuana.

Has the DEA?

Nakamura didn't study how often plants from all three of these categories are found in bags of plant material seized by the police in the United States, much less in the District of Columbia, correct?

Has the DEA?

TLC:

Now, concerning the TLC, the DEA uses the Fast Blue 2B spray reagent.

Thornton and Nakamura found that TLC using Fast Blue 2B reacts with a great many compounds other than marijuana and can hold no claim to specificity. (495)

"There is no question that Castillo did the full range of controlled substances testing at the laboratory on hundreds of pieces of evidence. Apparently, Castillo was able to skillfully report results on drug evidence without conducting the required tests. Assistant United States Attorney Janice Ellington told the Houston Chronicle that the DEA Laboratory where Castillo worked `has been unable to distinguish the samples which were tested from those which were not." Peter Schoenburg and Steve McCue, "Eye of Newt, Toe of Frog, Wool of Bat, Tongue of Dog - Veteran DEA Chemist Falsified Drug Test Results for Years," 20-DEC Champion 34 (1996), quoting in part from the Houston Chronicle, Saturday, July 20, 1996.

What's different from the safeguards in place at the DEA laboratory in Dallas at that time and the safeguards in place at the DEA laboratory here in Largo, MD?

PROFICIENCY TESTING

Your laboratory conducts proficiency tests, right?

Is your proficiency testing in your laboratory conducted in a blind or open manner?

If the proficiency testing is done in an open manner:

So, the analysts working on the samples are aware that they are being tested? Are you aware of studies that have shown that performance on "open" proficiency testing is better than performance on "blind" proficiency testing? Is it possible that the people in your lab are more careful when they know that their performance is being judged?

How is that possibility accounted for in determining the error rate of tests like those you conducted in this case?

CROSS-EXAMINATION OF DEA CHEMIST IN A MARIJUNA CASE

 

Jencks: request Jencks inquiry

Working for DEA = Pro-Prosecution Bias

No Recollection of the Tests Done on this Sample

No Knowledge of Chain of Custody or Possible Contamination Prior to Reaching Lab

DEA - ASCLD Accreditation v. Real Accreditation

Even ASCLD Considers Certain Factors Essential to Accurate Testing

This Is Science [Application of the Scientific Method: Validation -- Peer Review]

Microscopic Examination [(1) Test Not Definitive; (2) Chemist Not Qualified; (3) Other Plants Have Similar Characteristics]

Duquenois-Levine 1(1) Test Not Definitive; (2) Subjectivity of Test; (3) Sensitivity of Test Makes It Vulnerable to Contamination]

TLC - Thin Layer Chromatograph [(1) Test Not Definitive; (2) Subjectivity of Test; (3) Subjectivity of Test Makes It Vulnerable to Contamination]

Lack of Protocol/Unknown Error Rate [No Protocols Mean It's Impossible to Assign Error Rate (Except Through Faulty ASCLD Proficiency Testing)]

Timing/Contamination

THREE TESTS DONE FOR MARIJUANA ARE INCONCLUSIVE, PRELIMINARY TESTS

 

You ran three different tests on the substance in this case, correct? You did a visual inspection with microscope.

You did a modified version of the Duquenois-Levine Reagent Test, and you ran a thin layer chromotography test.

You would agree that, on their own, none of those three tests are considered dispositive for the identification of marijuana, correct?

That's because the margin of error for each of those tests is too great for a scientist to make a positive identification of plant material as marijuana, correct?

These tests are performed by people? And people can make mistakes? They’re performed in a laboratory?

And laboratories can suffer from contamination problems and other physical plant issues?

It's fair to say that all tests have an error rate?

What does the DEA claim the margin of error is for detecting marijuana through visual inspection with microscope?

- If he gives a number, ask: "What is your basis for that answer?"

What does the DEA claim the margin of error is for detecting marijuana through the Duquenois-Levine Reagent Test?

- If he gives a number, ask: "What is your basis for'that answer?"

What does the DEA claim the margin of error is for detecting marijuana through the thin layer chromotography test?

- If he gives a number, ask: "What is your basis for that answer?"

What does the DEA claim the margin of error is for detecting marijuana through the use of all three tests used here - the microscopic examination, the Duquenois Levine Reagent test, and the thin layer chromotography test?

- If he gives a number, ask: "What is your basis for that answer?"

It's fair to say that all DEA chemists perform those three tests the same way? If YES:

Does the DEA have established protocols for conducting those three tests?

Hughes and Warner study:

Hughes and Warner don't claim that there is a zero possibility of a false positive, do they? (possibility is `negligible', 309)

Thornton and Nakamura don't claim that there is a zero possibility for a false positive, do they?

Courts and Jones don't claim that there is a zero possibility for a false positive, do they?

Can you briefly describe how you perform the Duquenoise-Levine test now? how long does that take?

TLC In Hughes and Warner

- 25 mg. extract placed in beaker; petroleum ether was added and allowed to remain in contact 1-2 minutes.

- Ether poured off

- Residue was redissolved in 1 ml of petroleum ether

- Spotted on a plate

- Color changes observed over 2 minute and 10 minute time periods

Extraction:

Now, in performing the Duqenois-Levine test, the Duquenois reagent is applied to the plant material, correct? (491)

Nakamura indicated that it was preferable to apply the Duquenois reagent to an extract of the resin from the plant material, correct? (491)

In performing the D-L test, do DEA protocols require chemists to apply the reagent to an extract of the resin of the plant material?

Nakamura indicated that as generally performed, the test is preceded by an extraction with petroleum ether. (492). Is that required by the DEA protocol for performing the Duquenois-Levine test?

He also indicated that, as generally performed, the petroleum ether extract is evaporated to dryness before the residue is tested. (492). Is that required by the DEA protocol for performing the Duquenois-Levine test?

"The test, as generally performed, is preceded by an extraction with petroleum ether. The petroleum ether extract is evaporated to dryness and the residue tested with the Duqenois reagent." (492)

Did Nakamura describe what effect not using plant material that had been extracted with petroleum extract and evaporated to dryness would have on the color reaction in the D-L test?

Species that have cystolithic hairs:

Nakamura indicated that cystoliths of various types are found in the leaves of a number of dicots. (497).

He also indicated that the presence of cystoliths is not diagnostic for a family, let alone a genus of plants. (497)

Nakamura specically noted that cystoliths are found on - - hops plants (500)

- oregano (500)

- lemon thyme (501)

- silver thyme (501)

- rosemary (501)

Nakamua specifically noted 63 "representative" species in 13 plant genera that contain cystoliths in table 5 of his article (501)

Nakumura indicated that he made no attempt to prepare a comprehensive listing of species bearing cystolith hairs similar to those found in cannabis "because of the sheer enormity of the task to examine 31,874+ dicotyledons." (500).

For instance, in one genus found in Table 5 of his article, the Loasa, he specifically noted 9 species that had cystoliths, however he went on to say that there were actually some 80 species of that genus known to have similar hairs. (501). And he used that as an example of the fact that his listing was not comprehensive.

So it's fair to say that the 63 "representative" species that have cystoliths that were noted by Nakamura in Table 5 of his article is not an exhaustive list.

Affect of Unknowns on Test Results

Nakamura didn't use samples of unknowns in conducting his research.

In fact, he was even very specific about the geographic source of marijuana he tested:

Nakamura hypothesized that much of the illicit marijuana in California is of Mexican origin, and therefore he used a sample of verified Mexican marijuana to study the effect of the presence of terpenes, which may cause a violet or purple color reaction to the D-L test. (490)

In conducting his study, he used samples of marijuana known to have been grown in three places -

-         mj grown at the military reservation at Fort Leavenworth, KS, in 1967

-     mj grown in Martinez, CA, in 1967

-         mj grown in the State of Nayarit, Mexico in 1967

Plants Yielding Similar Color Results using the D-L test

Nakamura acknowledges that De Flaubert Maunder listed 25 species of plants which exhibited violet to purple colors in the Duqenois N test, and were extractable in chloroform, which is a distinguishing feature of the Duquenois-Levine test. (502)

Nakamura tested 23 of those species noted by DeFlaubert Maunder:

Using the D-L test, he found that the violet to purple color when testing the leaves of the following (502):

- coffee

- a species of gum copal called Caplafer conjugata

- gum Kawri

- wood sage

- Thuja occidentalis

- Sandarac

And he found violet to purple color reactions to the D-L in other plants as well, just not the leafy portions. (502)

And that list includes -

- calamus

- culver root - ginger

- gum animi

- gum copal

- gum myrrh

- henna

- lettuce opium - sandal wood - tolu

- wood betony - liquorice

- nutmeg

- poison flag

Nakamura found that mace and nutmeg, which yielded colors similar to that obtained with marijuana with the D-L test, could be `credibly confused' with marijuana based on microscopic appearance. (502)

The Courts and Jones  study that was published in 1979.

The samples used in that study were supplied by the RCMP laboratory in Edmonton Alberta.

100 samples were provided.

We don't know exactly where or when they were seized.

There's no indication they were seized in 100 separate arrests in 1979, or in 20 separate arrests over a 2-year period, or 10 arrests in a 6-month period?

And there's no indication that they were seized from one supply source, or from multiple supply sources.

No study has been done to show how similar material that is suspected to be marijuana seized by police in DC is to material that was suspected to be marijuana in the 70's in Canada?

No study has been done that suggests that plant material seized in 2005 and 2006 in DC originated from the same area as plant material that was suspected to be marijuana in the 70's in Canada?

No study has been done that suggests that plant material seized in 2005 and 2006 in DC is as likely to be grown indoors as plant material that was suspected to be marijuana in the 70's in Canada?

No study has been done that suggests that plant material seized in 2005 and 2006 in DC is as likely to have been produced by the same supplier as plant material that was suspected to be marijuana in the 70's in Canada?

Edmonton, Canada, is in a different climate than Washington, DC, correct? And it's fair to say that the climate in and around Edmonton, Canada, is different than that of most of the United States?

On average it's both colder and drier than Washington DC, correct? So different plants are prevalent in certain climates?

Nothing is mentioned in the Court and Jones article about whether suspected marijuana seized in Edmonton, Alberta in the late 70s was usually grown indoors or outdoors?

Nothing was mentioned in the article about what reason the RCMP laboratory had for suspecting that the material in the samples they provided was marijuana?

For example, there's no indication in the Courts and Jones study whether or not the RCMP laboratory had conducted preliminary tests?

And they didn't use samples of plant material, but dried hexane extracts of materials the police suspected to be marijuana?

Courts and Jones didn't test to identify or exclude the presence of plant  material that causes false positives in the microscopic analysis - in other words, plant materials with cystolyths?

Courts and Jones didn't test to identify or exclude the presence of plant material that yields similar color results with the D-L test?

Courts and Jones didn't test to identify or exclude material that yields similar results to marijuana using the TLC?

The Thornton and Nakamura article was published in 1972

The Courts and Jones article was published in 1979

And the Hughes and Warner study was published in 1977

The DEA is a participant in SWGDRG, The Scientific Working Group for Analysis of Seized Drugs, correct?

And that's been in operation since the 90's (1997)?

And one of SWGDRUG’s purposes is to provide recommendations for the analysis of seized drugs.

Can you verify that Thornton and Nakamura, in conducting their tests in the early 70's, adhered to SWGDRUG approved quality assurance methods?

Same for Courts and Jones.  Same for Hughes and Warner

But the DEA, as a participant, adheres to SWGDRUG’s recommendations?

And one of the things that SWGDRUG absolutely requires in Part IV B, section 1.2.3. of its Recommendations, 2nd edition, is that "If validated methods are used from published literature or another laboratory's protocols, then the methods shall be verified within each laboratory." ( P. 28)

And Part IV B, section 1.5. of the 2nd edition of its Recommendations requires that "The entire validation/verification process shall be documented and the documentation shall be retained.

Documentation shall include, but is not limited to, the following:

- personnel involved

- dates

- observations from the process

- analytical data

- a statement of conclusions and/or recommendations

- authorization approval signature. (29)

And also, Part IV B, section 2.4.8. of the 2nd edition of its Recommendations requires that "The contribution of random and systematic errors to method result uncertainty shall be assessed and the expanded uncertainty derived for quantitative methods."

Where are those protocols published?

Have they been peer-reviewed by scientists from outside the DEA? - If so: Where was that review published?

If NO:

If the DEA's chemists don't conduct the tests in the same way, has that been factored into the DEA's margin of error rate concerning these tests?

MICROSCOPIC EXAMINATION/VISUAL INSPECTION IS NOT CONCLUSIVE

 

I'm going to ask you some questions now about visual examination under a microscope.

When performing that test, you place a small portion of the dry material on a microscopic slide?

You add a drop or two of water?

And flatten the sample with a cover glass?

You inspect the prepared slide under a microscope?

You examine it at low and medium magnification - 30x to 100x?

You look for what are called "hairs"?

And there are two types of hairs?

One type of hair is called cystolith hair?

These are often called bear claws because they look like little bear claws? And the second type of hair is called glandular hair?

These are often called mushrooms because they look like little mushrooms?

And the presence of these hairs is one of the reasons you identified the substance as marijuana?

But other substances also have "hairs" like those found on marijuana plants?

X has hairs like those found on marijuana plants?

Y has hairs like those found on marijuana plants?

Z has hairs like those found on marijuana plants?

And when you are examining the sample under the microscope, do you also add hydrochloric acid?

IF "YES":

So after you examine the sample for the two kinds of hairs, you add a few drops of hydrochloric acid the preparation and recover the sample with a cover glass?

You look for an effervescence under the microscope?

But other substances can produce the same effervescence when a few drops of hydrochloric acid are added to them?

For example, nettles? And catnip?

So just because a substance effervesces after you add a few drops of hydrochloric acid to it doesn't mean that it's marijuana?

So did you test for the presence of these other substances?

In what plant family is the genus Cannabis classified? [Cannabinaceae]

How many other plants are found in the Cannabinaceae family?

[Most taxonomists say at least four. Some say more; some say less.]

Is marijuana a monoctyledon or a dicotyledon? [Dicotyledon]

Is the marijuana pant annual or perennial? [Annual]

Is the marijuana plant dioecious?

(dioecious = having male and female flowers borne on separate plants) [Yes.]

What are the dimensions of marijuana seeds? [About the size of the seeds in an apple.] Could you explain what cystolith hairs are?

[Look like little bear claws under the microsope - contain a deposit of calcium carbonate at their base.]

How many other plants have cystolith hairs? [At least 600 other species of dicotyledons alone.]

How many course have you had in plant taxonomy?

Is it therefore fair to state that you are not a plant taxonomist and that you are unfamiliar with plant taxonomy?

And you are therefore not qualified to give us a scientific opinion as to the classification of plants, are you?

[IF "YES"]:

What is the largest single taxonomic category into which marijuana falls?

Well, the largest category is a kingdom, is it not?

There is a plant kingdom and animal kingdom, isn't that right? Marijuana falls in the plant kingdom?

What is the next largest taxonoic category after kingdom?

[Phylum.]

What phylum does marijuana fall into?

What is the next largest taxonomic category after phylum?

[Class.]

What class does marijuana fall into?

[Cannabinaceae.]

What is the next largest taxonomic category after class?

[Order.]

What order does marijuana fall into?

What is the next largest taxonomic category after order? [Family.]

What family does marijuana fall into?

[Dicotyledon.]

What is the next largest taxonomic category after family?

[Genus.]

What genus does marijuana fall into?

[Canabis]

ACCREDITATION

Which organizations have accredited the DEA laboratory to conduct examinations of suspected controlled substances like cocaine or marijuana?

Would you say the requirements are minimal for a laboratory to be accredited?

What sort of requirements are there for a laboratory to be accredited?

.

Your position is that conducting an analysis by performing all three tests can conclusively determine if plant material is marijuana?

These three tests are screening tests.

Meaning that they help a chemist narrow down the possibilities of the identity of a substance?

The modified Duquenois-Levine Reagent test is actually the field test that is used by the Metropolitan Police Department for substancse suspected of being marijuana, right?

But it's understood that when the police get a positive test for marijuana with a field test, that's just a preliminary result, right?

Neither of these three tests standing alone can definitively identify marijuana can they?

Because none of these three tests conclusively proves that a substance is marijuana?

There is a more rigorous test that can be used to conclusively determine if plant material is marijuana, correct?

That's the GC/MS test, correct?

You didn't perform that test on the substance in this case, did you?

Okay, let's talk more specifically about each of the three tests you performed on the substance in this case...

Jencks: Make a Jencks request -

Note: Rule 26.2(a) states that "After a witness other than the defendant has testified on direct examination, the Court, on motion of a party who did not call the witness, shall order the prosecutor or the defendant and the defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified."

Does Jencks apply to the DEA chemist? On the one hand, the DEA-7 is the functional equivalent of direct testimony, and D. C. Code § 48-905.6 says that the examination "shall be as on cross-examination."

On the other hand, the defense is calling the chemist in the defense case, and there has been no actual direct examination in the government 's case in chief.

No matter how you slice it, however, you should make the Jencks request.

Either it is Jencks, in which case we get the material; or it isn't, and that means that even though we have called the chemist ourselves, we are still prejudiced by the judge 's refusal of our Crawford motion, since we clearly would  have been entitled to Jencks if the government had called the chemist on direct. So, basically, it 's a win-win scenario.

What you already have:

-              DEA-7

-              DEA-86 (Laboratory Worksheet)

-              DEA-95 (MPD form on the outside of the evidence bag)

What you are looking for:

-         DEA-307 Evidence Accountability Record: The evidence custodian will also prepare an Evidence Accountability Record (DEA Form 307) to provide details of the location and custody of the item while it is in the laboratory. The DEA Form 307 is kept in a secure file to serve as the primary source of information to locate the item, as well as proof of custody. Each time the evidence changes custody within the laboratory, the transfer must be recorded by annotating the DEA Form 307.

-          

" From "Basic Training Program for Forensic Chemists" (2-3).

-         DEA-12 Receipt for Cash or Other Items: "Subsequent transfers of the evidence such as for court, are documented on a Receipt for Cash or Other Items (DEA Form 12), with a copy being placed in the laboratory case file.

-          

" From "Basic Training Program for Forensic Chemists" (2-3)

-         STRIDE entries (System to Retrieve Information from Drug Evidence): a computerized system to track the movement of evidence within the laboratory.

- LEMS entries (Laboratory Evidence Management System): The LEMS

encompasses all evidence received and stored in the DEA laboratory system. It tracks the receipt and movement of evidence using bar code technology. PURPOSE: Maintains a complete inventory and an electronic chain of custody of evidence submitted to the DEA laboratories. Note: this system is used throughout the DEA, but may not be used to track evidence from local jurisdictions like DC. If the chemist says they generally use LEMS, but not for DC cases, there should be another evidence system in place. That system should also produce entries. Jencks Questions:

Did you fill out or sign off on a DEA-307 form when you received or returned the evidence?

The evidence custodian will also prepare an Evidence Accountability Record (DEA Form 307) to provide details of the location and custody of the item while it is in the laboratory. The DEA Form 307 is kept in a secure file to serve as the primary source of information to locate the item, as well as proof of custody. Each time the evidence changes custody within the laboratory, the transfer must be recorded by annotating the DEA Form 307. -- From "Basic Training Program for Forensic Chemists" (2-3).

Did you make any entries or notations in the laboratory case file for Lab. No. KR-374?

In a discussion in "Basic Training Program for Forensic Chemists" (2-3) about the DEA Form 12, which documents subsequent transfers of the evidence such as for court, it indicates that a copy of the DEA Form 12 is placed in the laboratory case file.

The DEA has a computerized system to track the movement of evidence within the laboratory called STRIDE (System to Retrieve Information from Drug Evidence), correct?

Did you make any STRIDE system entries regarding Lab. No. KR-374?

The DEA has a system that tracks the receipt and movement of evidence using bar code technology called LEMS (Laboratory Evidence Management System), correct?

Did you make any LEMS system entries regarding Lab. No. KR-374?

If the answer is that the lab doesn 't use LEMS for local (DC) evidence:

-         For evidence seized by the DEA, you make entries in the STRIDE system and the LEMS system in addition to filling out the DEA-307 form, correct?

-          

-         And that's to document the chain of custody?

-          

-              What entries do you make to document the chain of custody besides filling out the DEA-307?

Other than what you have just described, did you make any other record, either on a computer or on paper, concerning Lab. No. KR-374 with regard to chain of custody?

Other than what you have just described, did you make make any other record, either on a computer or on paper, concerning Lab. No. KR-374 with regard to the tests you performed?

General:

What tests did you perform in this case?

-              microscopic analysis

-              Duquenois-Levine

-              GC/MS (gas chromatogrpah/mass spectrometry)

These tests were done to determine if the substance in lab. No. KR-374 contained THC (tetrahydrocannabinol).

You did no quantitative tests in this case - in other words, no tests to find out how much THC was in the green weed substance?

You did no tests to see if there was other plant material mixed in with what you found to be marijuana?

You only tested a portion of the green weed substance?

Are the tests definitive, either individually or in combination?

You indicated on the DEA-7 that "exhibit 1 contains a measurable amount of marihuana.”

And by that you meant that you had found to a reasonable degree of scientific certainty, that exhibit 1 contains a measurable amount of marijuana?

You wrote that exhibit 1 contains marijuana because of the combined results of the three tests you conducted in this case - the microscopic analysis, the Duquenois-Levine, and the GC/MS?

If the answer is yes: on what do you base that assertion?

-              Is there any reference material - what?

-              Are there any validation studies by the DEA - published? If so, where?

-              Are there any validation studies from other sources - published? If so, where?

When you did the microscopic analysis, it showed positive for marijuana.

If you had only done the microscopic analysis, would you have written that, to a reasonable degree of scientific certainty, exhibit 1 contained a measurable amount of marijuana?

If the answer is yes: on what do you base that assertion?

When you did the Duquenois-Levine test, it showed positive for marijuana.

If you had only done the Duquenois-Levine analysis, would you have written that, to a reasonable degree of scientific certainty, exhibit 1 contained a measurable amount of marijuana?

If the answer is yes: on what do you base that assertion?

When you did the GC/MS, it showed positive for the presence of THC and cannabinol.

You also indicated in the DEA-86 that there were "possible cannabinoids X2."

Can you explain that comment?

If you had only done the GC/MS analysis, would you have written that, to a reasonable degree of scientific certainty, exhibit 1 contained a measurable amount of marijuana?

If the answer is yes: on what do you base that assertion?

ERROR RATES

Like all human beings, and as a matter of fact like all scientists, it's possible for you to make a mistake.

The tests you performed on Lab. No. KR 374 were conducted in a laboratory. And laboratories can suffer from contamination issues.

Contamination can lead to error.

Chain of custody problems can lead to error.

It's fair to say that every scientific test has an error rate of some kind?

If the answer is no:

-         So are you saying that the three tests performed here - the microscopic analysis, the Duquenois-Levine, and the GC/MS - are incapable of error?

You would agree that science relies on proof.? And that peer review is essential to the truth-seeking function of science?

-         Is your statement that the tests are incapable of error based on proof? - If so: has that proof been subjected to peer review? [If so: by who?]

-          

-              Where has that proof been published?

If the answer is yes:

The subpoena that you received from the defense in this case required that you bring with you -- "All reference materials that support the opinion that the tests done in lab. No. KR-374 were conducted in a contaminant free environment," and also, "any formal validation studies concerning the accuracy of the tests that were performed, as they were conducted, both separately and in combination."

Did you bring that material with you?

What is the error rate for the microscopic analysis as you performed it in lab. No. KR-374?

What is your basis for saying that?

Has anything been published establishing the error rate for the microscopic analysis as you performed it in lab. No. KR-374?

If the answer is yes: can you tell me where it's published?

If the answer is no: did you bring the reference cites where that material can be found?

What is the error rate for the Duquenois-Levine test as you performed it in lab. No. KR-374?

What is your basis for saying that?

Has anything been published establishing the error rate for the Duquenois-Levine test as you performed it in lab. No. KR-374?

If the answer is yes: can you tell me where it's published?

If the answer is no: did you bring the reference cites where that material can be found?

What is the error rate for the GC/MS as you performed it in lab. No. KR-374?

What is your basis for saying that?

Has anything been published establishing the error rate for the GC/MS as you performed it in lab. No. KR-374?

If the answer is yes: can you tell me where it's published?

PRODUCING A FALSE POSITIVE

Have you ever heard of a false positive occurring in controlled substance analysis?

How is it possible that a laboratory could report a false positive for a controlled substance?

Have you ever heard of a DEA laboratory reporting results for samples that were never analyzed?

That happened in the DEA laboratory in Dallas, for example, correct?

Isn't it true that in Dallas, a DEA chemist was able to falsify results for months before it was discovered?

Note: here is the skinny on Dallas:

In Dallas, a veteran DEA chemist was suspended after acknowledging that she had been filing false reports from February to July of 1996. One can only speculate how many of the related cases were resolved by plea, and in how many was the analysis stipulated to based on a fraudulent DEA-7 form. The director of that DEA laboratory told reporters: "If you're talking about what happened since February, it's hundreds of cases, but she's been an employee here for many years and we don't know the possible extent. No one knows what happened before." ("Hundreds of Drug Cases May Be in Jeopardy," Dallas Morning News (July 19, 1996)).

This suggests, of course, that at the very least poor record management existed in the DEA laboratory. Lack of access to the physical plant and the pertinent records means the defense can never determine if such problems may have affected a particular analysis.

If the proficiency testing is done in a blind manner:

When you say the proficiency testing is done in a blind manner, can you explain how that is done?

How often is it done?

Who oversees the proficiency testing?

TRAINING AND PROFICIENCY OF CHEMISTS

Are all chemists at the DEA Mid-Atlantic laboratory trained in how to conduct the microscopic analysis?

Is there a written protocol concerning microscopic analysis that DEA chemists follow?

And that's the protocol that you followed? How did you conduct the microscopic analysis?

Did the way you conduct the analysis comport with the DEA protocol in every respect?

Are all chemists at the DEA Mid-Atlantic laboratory trained in how to conduct the Duquenois-Levine analysis?

So there's a written protocol that these chemists follow? How did you conduct the Duquenois-Levine test?

Did the way you conduct the analysis comport with the DEA protocol in every respect?

Are all chemists at the DEA Mid-Atlantic laboratory trained in how to conduct the GC/MS analysis?

So there's a written protocol that these chemists follow? How did you conduct the GC/MS test?

Did the way you conduct the analysis comport with the DEA protocol in every respect?

What documentation is there confirming that you are certified as competent to perform the three tests you conducted in this case?

Besides the DEA-86, what documentation is there to show that you conducted the tests in lab no. KR-374 in accordance with all the procedural requirements?

You filled out a DEA-7 form in this case?

You also filled out a DEA-86 form in this case?

From whom did you receive Lab. No. KR-374?

Section 1 of the DEA-86 indicates it was received from U. Swinson.

When did you receive Lab. No. KR-374?

Section 2 of the DEA-86 indicates it was received on 2/14/06.

Did you talk to anyone at the laboratory about the tests you performed with regard to Lab. No. KR-374?

If the answer is yes: how many ? Did they any take notes while you were talking?

Did you talk to any lawyers about coming here and testifying as a witness concerning the tests you performed with regard to Lab. No. KR-374?

If the answer is yes: how man?  Did they any take notes while you were talking?

The net weight of the substance brought to you for analysis in this case was 670 milligrams (.67 g).

The reserve, or what was left after you conducted the three tests, was 460 milligrams (.46 g).

So a total of 210 milligrams (.210 g) was used in all three tests combined. That's an average of about 70 milligrams (.070 g) per test.

You did no tests with the remaining 460 milligrams (.46 g) in lab no. KR-374. 1.

MICROSCOPIC EXAMINATION/VISUAL INSPECTION IS NOT CONCLUSIVE

I'm going to ask you some questions now about visual examination under a microscope.

When performing that test, you place a small portion of the dry material on a microscopic slide?

You add a drop or two of water?

And flatten the sample with a cover glass?

You inspect the prepared slide under a microscope?

You examine it at low and medium magnification - 30x to 100x? You look for what are called "hairs"?

And there are two types of hairs?

One type of hair is called cystolith hair?

These are often called bear claws because they look like little bear claws? And the second type of hair is called glandular hair?

These are often called mushrooms because they look like little mushrooms?

And the presence of these hairs is one of the reasons you identified the substance as marijuana?

But other substances also have "hairs" like those found on marijuana plants?

X has hairs like those found on marijuana plants?

Y has hairs like those found on marijuana plants?

Z has hairs like those found on marijuana plants?

And when you are examining the sample under the microscope, do you also add hydrochloric acid?