Bullet Lead Analysis Case Convictions Under Fire

Forensic sci­ence is often asked to per­form cer­tain types of test­ing. The test­ing can be per­formed in an appro­pri­ate man­ner, and results that are obtained can be valid. It’s what hap­pens once the results of test­ing are explained to the jury, and how sig­nif­i­cant those results are, that is the most important.

Bullet lead analy­sis was a foren­sic test used by the FBI lab­o­ra­tory for years. The process would look at the ratios of trace metal com­po­nents in the lead sam­ple. Ratios would be com­pared from an evi­dence bul­let (taken from autopsy say), and then com­pared to bul­lets found at the sus­pects house. The jury was then told that there was an exact match.

The prob­lem is that it is unclear what sig­nif­i­cance that has. Does that mean that the bul­let comes from the same box of ammu­ni­tion? — no. Does it mean that bul­let came from the same lot of pro­jec­tiles? — (there are poten­tially hun­dreds of thou­sands of bul­lets in the same lot) — no. Can dif­fer­ent lots of bul­lets man­u­fac­tured years apart hap­pen to have the same ratios? — possibly.

The good thing about this arti­cle is it shows the FBI lab’s com­mit­ment in let­ting every­one (pros­e­cu­tors and defen­dants) know that there was poten­tially flawed tes­ti­mony given in tri­als, and are try­ing to cor­rect the error.

Original arti­cle posted here.

Discredited foren­sics may upend rulings

By Meg Laughlin, Times Staff Writer

Published Friday, December 12, 2008 10:07 PM

In 1998, Panhandle high school teacher Jimmy Ates was con­victed of mur­der for shoot­ing his wife seven times in the couple’s Okaloosa County home. There were con­flict­ing wit­ness accounts and a time line with wig­gle room. But the tes­ti­mony of an FBI expert was indis­putable: The bul­lets that mur­dered Norma Jean Ates in the couple’s bed­room came from Jimmy Ates’ box of bullets.

Prosecutor Rod Smith ham­mered the point home to jurors: “Of all the mil­lions and bil­lions of bul­lets that are made by any given com­pany in any given time frame, the bul­lets that killed Norma Jean were man­u­fac­tured from the same batch that were found in the box in the back room.”

But now, a decade later, another pros­e­cu­tor has taken an unprece­dented step and asked that the sen­tence be inval­i­dated because “the fair­ness of the defendant’s trial was severely jeop­ar­dized.” The move could affect mur­der cases around the coun­try, includ­ing a death row appeal in St. Petersburg.

The turn­around for Gainesville pros­e­cu­tor Geoffrey Fleck came in late May, after he received a let­ter from the head of the FBI lab. The let­ter said that the FBI expert who tes­ti­fied at the Ates trial “did not pro­vide suf­fi­cient infor­ma­tion to the jury to allow them to under­stand how bul­lets are made,” which meant the jury “could have mis­un­der­stood the pro­ba­tive value of the evidence.”

The let­ter to the Gainesville State Attorney’s Office was among hun­dreds of let­ters the FBI sent out in the past year in sup­port of what FBI agents said in November 2007 on 60 Minutes — that FBI bul­let lead analy­sis is now a “dis­cred­ited foren­sic tool” because the dis­tri­b­u­tion of metal alloys in a bul­let is not linked to when and where the bul­let was made.

“We are going the entire dis­tance to ensure that jus­tice is served,” FBI assis­tant direc­tor John Miller said on 60 Minutes.

But Fleck is the first pros­e­cu­tor to step for­ward and ask that a sen­tence be over­turned because of the “FBI junk science.”

This week, defense attor­ney Barry Scheck, direc­tor of the National Innocence Project, called Fleck’s request “exem­plary” and said he hoped it would be “the exam­ple other pros­e­cu­tors would follow.”

“Getting the mur­der con­vic­tions based on faulty bal­lis­tics over­turned is a slow process, but it’s work­ing because of the FBI’s com­mit­ment,” said Scheck.

Last year in St. Petersburg, appel­late attor­ney Martin McClain used the 60 Minutes infor­ma­tion to ask Pinellas Circuit Judge Mark Shames to vacate the con­vic­tion of death row inmate Derrick Smith, con­victed of killing cab­driver Jeffrey Songer in 1983. But pros­e­cu­tors have argued against giv­ing Smith a new trial, and, so far, the judge has agreed with them.

But sev­eral weeks ago, McClain made a new request ask­ing the judge to recon­sider “in light of Ates” say­ing that, as in the Ates case, the pri­mary evi­dence — the bul­let link to the defen­dant — was “fun­da­men­tally flawed” caus­ing “the fair­ness of (Smith’s) trial to be fun­da­men­tally jeopardized.”

McClain is wait­ing for a decision.

Meanwhile, on Wednesday, Ates will attend a hear­ing in Okaloosa County, where, accord­ing to lawyers for the Innocence Project of Florida and Fleck, he is expected to be released on bail by the judge while pros­e­cu­tors decide if he should be retried.

Louise Kortaba, Norma Jean Ates’ mother, said for a few years after her daugh­ter was shot in 1991 she thought her son-in-law was inno­cent. But she even­tu­ally changed her mind and “felt he was guilty.” But now, she says, she’s “not clear on what happened.”

“If I’ve been wrong, I hope God and Jimmy will for­give me,” said Kortaba.

Prosecutor Rod Smith, who became a state sen­a­tor and is now a civil lawyer in Gainesville, has also rethought the con­vic­tion of Jimmy Ates.

“If we’d known then what we know now, we obvi­ously wouldn’t have put that FBI evi­dence in,” said Smith. “But now we know what we know and the state has to meet its obligation.”

In his motion ask­ing the judge to vacate the sen­tence, Fleck also said that police inves­ti­ga­tors with­held sus­pi­cious fin­ger­print evi­dence in the house from the pros­e­cu­tor and the defense.

“The jury was mis­led about impor­tant evi­dence at trial,” he concluded.

Fleck con­cedes that his posi­tion as the first pros­e­cu­tor in the coun­try to ask that a mur­der sen­tence be vacated because of faulty FBI bul­let tes­ti­mony is not pop­u­lar with every­one. But he says he’s thank­ful his office is sup­port­ing him.

“While suc­cess­ful pros­e­cu­tions are nice, jus­tice is bet­ter,” he said.