In 2 states, accuracy of gun forensics challenged

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What does a senseless murder more than 30 years ago in Rockford, Illinois, have to do with recent events at the Toolmark Analysis / Firearms Identification Section of the Rhode Island State Crime Laboratory?  More than you might think … 

 

Second of two parts 

       

Recent events at the Toolmark Analysis / Firearms Identification Section of the RI State Crime Laboratory (RICL) have something in common with the Illinois State Police Crime Laboratory in the Pursley case: both laboratories are controlled by law enforcement. 

 

On September 3, 2024 both the RICL and the Attorney General’s Office (RIAG) issued public statements about a problem at the RICL — a nonconformity with laboratory standards in a single case (the ‘mismatch’ case). Remedial steps were taken, including the suspension of internal examinations, the outsourcing of further examinations to an external, accredited laboratory or qualified consultant,  and the retention of an outside, accredited agency to conduct an assessment/technical review of the operations of the RICL’s firearms section.   

 

The State Crime Lab Commission (Commission) created by statute to oversee the RICL met twice in August and once in October, 2024, to discuss the issue. Although subject to the Open Meetings Law (OML), the Commission labeled the issue as a “personnel matter,” which allowed its discussions and actions to be shielded from public scrutiny. Curiously, however, at a Commission meeting on April 11, 2024, the Commission disclosed information relating to a non-conformity issue that appears to be nearly identical to the one that is the subject of the current controversy. 

 

 

What the Nichols Report recommended 

 

This inconsistent application of the OML was partially mitigated by the external agency report prepared in connection with RICL’s remedial steps. This October 9, 2024, report by Ronald G. Nichols, President, Nichols Forensic Science Consulting, Inc. (“report” or “Nichols’ Report”) was the result. It was provided to defense counsel in the ‘mismatch’ and other pending cases potentially impacted by the ‘personnel matter/nonconformity’ issue. Its findings included: 

 

  • three examiners misidentified thirteen fired cartridge cases in the mismatch case, incorrectly identifying a submitted Glock firearm as having made the toolmarks in question
  • the misidentification came to light when the cartridges were correctly connected to a different Glock pistol recovered by another agency
  • the misidentification was attributable to the examiners’ exclusive reliance on a toolmark common to all Glock pistols (a “class characteristic”) while ignoring other markings
  • greater attention should be paid to “sub-class characteristics”—toolmarks that are more individualized to a specific firearm

The report’s recommendations included: 

  • analysts should increase their reliance upon “sub-class characteristics” 
  • analysts should use language more discerning than ‘conclusive’ or ‘inconclusive’ in reports
  • ‘conclusive’ results should be based upon an examination of both class characteristics and sub-class and incidental characteristics.

 

 

Lowering expectations about toolmarks 

 

Rhode Island is not the only state dealing with this issue, which was identified in a 2009 National Research Council Report (NRC Report) and the 2016 report of the President’s Council of Advisors on Science and Technology (PCAST Report). Courts across the country have taken steps to improve the reliability and understanding of toolmark analysis. Some of these actions echo the Nichols’ Report recommendations including:  

  • restrict the degree of certainty in firearm examiners testimony (avoid the use of the word “match” or “conclusive”)
  • limit firearms testimony when the opinion is based on class characteristics only
  • allow challenges to an individual analysis (as opposed to the entire field) 

 

   

Policy considerations 

 

Will the RICL voluntarily accept the “best practices” recommended by the Nichols, NRC, and PCAST reports like  other jurisdictions, or will litigation be needed? Consideration of prior history  may be helpful: In 2009, the General Assembly considered transferring the RI Department of Health’s (RIDOH) Forensic Science Section to the Rhode Island Department of Public Safety, a law enforcement entity. Coincidentally, the aforementioned NRC Report opposed such a move because it would be inconsistent with each agencies’ functions, create problems of perception and conflict of interest, and inhibit the independence of the laboratory. Fortunately, the transfer was rejected by the legislature.  

 

Additionally, to achieve the best results here, the commission must be more diverse. Currently, it is heavily weighted in favor of law enforcement, with the RIAG serving as its chairperson. Additional members should be appointed – specifically other criminal justice stakeholders such as the judiciary, the criminal defense bar, the larger legal community and additional representatives from the academic community, especially from the University of Rhode Island’s renowned College of Engineering, given that field so closely fits with the functions of the RICL.  

 

Michael A. DiLauro, Esq. 

The Just Criminal Justice Group LLC 

Warwick

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