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5 September 2009

Commonwealth v. Kevin Brian Dowling

No. 5365 CA 1997 / York County, Pennsylvania
No. 255 Capital Appeal Docket / Pa. Supreme Court
TRIAL DATES: October 26-29; November 4-6, 1998

The prosecution hired a lab to examine clothing seized from the home of the defendant on October 21, 1997. The defendant had no criminal record, and worked as a manager and investigator for 20 years. He was an avid hunter, target shooter, and legally owned (1) handgun, (2) rifles, and (2) shotguns. He had a concealed weapons permit from the Lancaster County Sheriff, for personal protection. He had also shot and killed a 7 point buck whitetail deer only two days before his initial arrest on December 4, 1996. The clothing worn hunting and target shooting had been in a plastic bag with the clothing seized by police, from December 2, 1996 to October 19, 1997.

At the trial, the prosecution expert reported finding particles he claimed were unique to Gunshot Residue as follows: (6) particles on ballcap (no specific area), (2) particles on left shirt sleeve, (1) particle on left jeans leg, and (1) particle on left sneaker. He used Inorganic testing only, SEM/EDX, to identify the lead, barium, antimony particulates (PbBaSb). He did not use M.E.C.E. to identify the organic components of smokeless gunpowder in the residues.

A defense gunshot expert was approved only (6) days before trial, but was never consulted. He never testified.

In 2008, the defense obtained lab reports from the hired expert that impeach his entire testimony and contrived experiment. The automated analyses also list (1) unique GSR on the left sleeve (not 2) and (0) unique GSR on the left jean leg (not 1).

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Clothing Items of Defendant Tested

1. Miami Dolphins ballcap
2. Blue/white flannel shirt
3. Blue jeans
4. Black Converse sneakers

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Relevant Facts about Defendant's Clothing

1. The clothing was taken from the defendant's home, the day after the murder. It was not taken from the crime scene over 40 miles away.
2. None of the 8 witnesses who testified at trial to seeing the suspect outside the murder scene, described such clothing.
3. The defendant had worn the ballcap fishing and target shooting many times. The shirt and jeans had been in the bag of clothing used for hunting, and on October 20, 1997, for fishing.
4. The State Police testified that they did not wear gloves while handling the ballcap and shirt, but falsely testified to wearing gloves while handling the jeans and sneakers.
5. The State Police kept the defendant's clothing in a patrol car trunk for (6) days before transporting them to the hired lab several hours drive away.
6. The prosecution expert testified that the defendant's clothing showed no sign of laundering, since the particles found were larger than 2 microns in size and not oxidized.
7. None of the clothing items were subjected to Organic Gunpowder Testing such as Micellar Electrokinetic Capillary Electrophoresis (M.E.C.E.) which could have identified a specific caliber, ammunition, or manufacturer, with the organic components in the residues.
8. None of the alleged residues found were compared to the residues found on the victim's clothing, the victim's wounds, the recovered bullet, or the .357 caliber Smith & Wesson revolver belonging to the husband of the murder victim.

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Evidence from the Crime Scene

1. (1) complete unmutilated bullet from a wall / .357 caliber
2. (1) NASCAR sunglasses lying near the victim's body

1. The State Police Ballistic expert testified that the recovered bullet had (5) lands and grooves with a right twist, and was a .357 caliber, likely from a Smith & Wesson revolver. He testified to gunshot residue on the bullet, but it was never tested by State Police or the hired lab.
2. The State Police testified that the victim's husband finally told them that these sunglasses were his, three days after the murder. The three shots were heard at 12:57 P.M. The husband reported finding his wife dead at her business at 3:08 P.M. and called “911.” He said he laid the sunglasses next to the body. They were never subjected to any testing, especially to GSR testing. If found on the lenses, it would indicate the wearer fired a gun.

Evidence from the Husband of the Victim

1. The swabs of his hands
2. The clothing and footwear he wore to the crime scene
3. His registered .357 caliber Smith & Wesson revolver
4. His pickup truck parked unlocked at the scene
5. His wife's car parked unlocked at the scene

1. Despite having the husband at the murder scene, the police never swabbed his hands for presence of gunshot residue.
2. The police never requested nor seized his clothing or footwear.
3. The police did not ask him if he owned a gun until the day after the murder. They learned he had given it to his brother after the murder. They learned it was a .357 caliber. On October 24, 1997, the police lab results showed the victim was killed with a .357 caliber, yet waited until November 6, 1997 to obtain his revolver for testing. I had been arrested on October 29, 1997.
   

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   continued... At the trial in October 1998, the State Police ballistician testified that he received the revolver in a box, in good condition, with gunshot residue on one chamber and an empty shell casing in the box. He test fired the gun in a water tank, and compared the bullets to the recovered murder bullet. Both had (5) lands and grooves with a right twist. He testified he “could not rule it out as the murder weapon.” On prosecution re-direct, he changed his testimony and opined he “did not believe it was,” also contradicting his own lab report. There was no testing of the gunshot residue found on the revolver, or the empty shell casing.
4. The police noted his truck unlocked at the scene but never searched it, or examined it for forensics or even his revolver.
5. The police noted the victim's car unlocked at the scene but never searched it, or examined it for forensics or even the revolver.

Evidence from the Autopsy

1. The Pathologist tape-lifted gunshot residue from the victim's head wound.
2. The victim's two sweaters had bullet holes with reported residues
3. The Pathologist saved the victim's fingernail clippings

1. There is no evidence that the tape-lifted gunshot residue was ever tested.
2. The State Police sent the victim's sweaters to their lab, rather than the hired lab. They did not analyze the residues, only to determine shot distances.
3. There is no evidence that the fingernail clippings were tested, for the presence of any foreign D.N.A.

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Possible Sources of Residues on Defendant's Clothing

1. Accidental transfer from the hands of Trooper Mowrey, who admitted at least to not wearing gloves when handling the ballcap and shirt. Organic testing might confirm residues came from his weapon, or weapon other than murder caliber.
2. Intentional transfer from Trooper Mowrey, very possible due to his rampant misconduct, again availed to organic testing.
3. Residual gunshot residues from defendant's prior target shooting with .45 caliber Smith & Wesson handgun, availed to organic testing.
4. Residual gunshot residues from defendant's prior target shooting or hunting with .270 caliber rifle, .22 caliber rifle, or 12 gauge shotgun, availed to organic testing.
5. Residual gunshot residues from handling broken shotgun shells the day prior to the murder, availed to organic testing.
6. Automobile Disc-Brake dust transferred from defendant's car trunk, to fishing gear and boat motor and batteries, and then to the clothing in question. The defendant had installed new brakes on the car and left the old calipers, rotors, and brake pads in the trunk. The Journal of Forensic Science reported in September 1998, that such residues contain lead, barium, antimony (PbBaSb) particulates that are identical to gunshot residues, and cannot be differentiated absent organic testing.

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The Contrived Experiment

1. The State Police admitted that the defendant was right-handed.
2. The hired lab reported no residues on the right side of the defendant's clothing or his right sneaker.
3. The hired lab decided to test fire a .357 caliber revolver, firing it three times in the right hand, held over the left wrist. They tape-lifted residues from the left sleeve only, never checking the right sleeve. They never checked the pants or shoes of their test shooter either.
4. The experiment reports were not obtained until 10 years after trial, and even their contrived claims are inconsistent with the alleged residues on the defendant's clothing.

Other Contradictory Evidence

1. Another State Police expert testified to lifting “70” different shoe-prints from the tiled floor at the murder scene.
2. He also testified that none of those 70 shoe-prints matched the defendant's Converse sneakers.
3. Yet, the alleged “1” Unique Gunshot residue particle on the defendant's left sneaker was argued as being evidence of the murder.
4. The murder scene was a public business with many known visitors, even on the day of the murder from about 9:00 A.M. to the shots at 12:57 P.M. Though open with a supposed victim on the floor in view, she was not discovered until 3:08 P.M. by her husband, supposedly at his job only 10 minutes away until 3:00 P.M.
5. With the same facts as the prior paragraph, this business had glass doors and windows, and many other surfaces. Yet, the police reported no fingerprints found.
   

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6. Many witnesses contacted police to report various suspicious vehicles with suspicious drivers, seen near the murder scene, near the time of the shooting, and even hours earlier and later. None of the 8 witnesses who testified to seeing the suspect near the murder scene, described the specific colors and make of the defendant's car, and none identified it at trial.
7. None of the witnesses at trial described the murder suspect as wearing the specific clothing that the Commonwealth admitted at trial, claiming it was worn to commit the murder.
8. The only witness who falsely testified at trial that the Defendant was the suspect she saw near the murder scene, was not only lying, she was coached by police. She made 8 different statements to police in the year between the murder and the trial, each time changing her story with details gleaned from the extensive media coverage. She changed her testimony greatly from the December 1997 Preliminary Hearing, to the June 1998 Suppression Hearing, and to the October 1998 trial. She supplied her cash register receipt to police, proving she saw the murder suspect close up at 10:50 A.M., a time the police admitted that the defendant was 40 miles and a 63 minute drive away from the murder scene. Despite this evidence, the prosecution told the jury to ignore the computerized receipt, and believe the witness. They did.

Other Reasons Invalidating Clothing Analyses

1. In 2006, a Capital Case in Bradford County involved clothing that might have gunshot residue present. Another State Police expert testified: “The State Police no longer perform gunshot residue testing on clothing, because clothing contains different dyes which contain antimony and barium, and since we do not know the background levels of these elements in clothing, we cannot know if any antimony and barium particles found, existed from the dyes, not gunshot residue.” (My paraphrasing).
   Testimony of John Evans, State Police Chemist
   Notes of Testimony, 27 January 2006, pages 1-21
   Commonwealth v. Briggs, Bradford County, No. 348 CA 2004
   

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2. There was no investigation into the dyes present in the defendant's green and orange ballcap, blue and white shirt, blue jeans, or black sneakers.
3. The defendant was known to work on his car and other household chores involving chemicals. When the experiment documents were finally obtained 10 years after trial, it was learned that the hired lab analyzed the flannel shirt of their machine shop employee. They analyzed that shirt for inorganic elements only as well, but they were consistent with the various elements found on the defendant's clothing, sneakers, and ballcap. Most are not usually found in gunshot residue.
4. The other element, lead, is so common in the environment that its evidentiary value is nil. In fact, the vast majority of experts and police believe that any residues found on clothing that indicate the presence of gunshot residue, have limited evidentiary value unless found at a crime scene, or worn by a suspect at a crime scene. There is no way to determine if a specific shooting event is the source, and if clothing is left undisturbed and unwashed, residues may remain for years.

How the Lab Experiment Should Have Been Performed

1. They should have duplicated the shooting conditions inside the murder scene, inside a small framing gallery, not outside in noted windy conditions, affecting residue deposition on their test shooter.
2. Have the test shooter fire a .357 revolver three times while standing still and walking towards a target, to mimic the police theory.
3. Have the test shooter fire with his right hand, left hand, and both hands wearing pristine shirts each time to show true residue deposition.
4. Use different brands and grain loads of .357 ammunition.
5. Tape lift residue samples from all areas of the test shooter's clothing, including a hat, both shirt sleeves, front of shirt, both pant legs, and both shoes (not just the left sleeve).
   

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6. Perform SEM/EDX testing to determine what inorganic elements (metals) are present on the test shooter clothing items.
7. Perform M.E.C.E. testing to determine what organic components (chemicals) of smokeless gunpowder are present in the residues of the test shooter clothing items.
8. Perform the same two tests on the clothing items of the defendant.
9. Compare the results of the test shooter's clothing to the defendant's clothing results.
10. Only then, could a legitimate determination have been made that any residues found on the defendant's clothing were conclusive to .357 ammunition, and conclusive to the specific firing of three shots wearing that clothing, consistent with the residue patterns on the test shooter's clothing.
11. Importantly, organic testing can also be completely exculpatory, if SEM/EDX detects lead, barium, antimony (PbBaSb) particulates on the defendant's clothing, but, M.E.C.E. indicates none of the known organic components of smokeless gunpowder, then it would exclude “gunshot residue” as the source and indicate it was automobile disc-brake dust from the defendant's car trunk.
12. Since the lab expert admitted that the defendant's clothing showed no evidence of laundering, it was pointless to conduct the “washing studies” part of the experiment. However, laundering the test shirts removed all of the “unique” gunshot residue, and reduced other particles to smaller than 2 microns. Laundering also oxidizes particles (rust). As testified to, the few alleged particles on the defendant's clothing said to be “unique” to Gunshot Residue were larger than 2 microns and not oxidized. If this experiment were repeated, it should be done in a pristine washer and dryer in lab conditions, not in a public laundry, which was used in this experiment. The test shirts picked up chemicals from other people's laundry and detergents. This was not scientific.

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Possible Inorganic Elements (Metals)
Possible Organic Components (Chemicals)
In Gunshot Residue Deposits

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Smokeless Gunpowder Components and Purposes

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Smokeless Gunpowder Ammunition

1. Types:
   
   1. Single-Base – Nitrocellulose
   2. Double-Base – Nitrocellulose and Nitroglycerine
   3. Triple-Base – Nitrocellulose, Nitroglycerine, and Nitroguanidine
2. Ammunition Uses:
   
   1. semi-auto handguns and shotgun shells use double-base only
   2. revolvers and some rimfire rifles use either single or double-base
   3. Non-rimfire rifles and some rimfire rifles use single-base only
   4. triple-base in not used in U.S. ammunition, usually in Israeli ammo
3. Other sources of certain chemicals:
   
   1. Nitrocellulose – is also used in lacquers, paints, varnishes, printing presses, celluloid films, and pharmaceuticals. Therefore, when found alone, it is not conclusive to smokeless gunpowder.
   2. Nitroglycerine – is also used in explosives and cardiac stimulants. It is conclusive to smokeless gunpowder when found with the flash inhibitor 2,4 Dinitrotoluene (2,4-DNT).
   3. Diphenylamine – has also been found on swabs from the hands of people with no known contact with firearms.
   4. Resorcinol – is also found in dyes, resins, and pharmaceuticals.
   5. Carbazole – is also found in dyes.
4. Exclusivity: the presence of Ethyl Centralite and 2,4 Dinitrotoluene are the two most characteristic materials in smokeless gunpowder.

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Inorganic Analysis of Gunshot Residues

Method: SEM/EDX – Scanning Electron Microscope / Energy Dispersive X Ray

Limitations: None of the possible Inorganic Elements listed are “exclusive” to gunshot residue (GSR). Most expert witnesses who testified in criminal cases have stated that when they detected clumps of lead, barium, and antimony (PbBaSb) together – it was “unique” to gunshot residue (GSR). That was proven false in 1998, and published in the Journal of Forensic Science. It was learned that “auto disc-brake dust” produced “identical” particulates to GSR, that could not be differentiated absent “organic gunpowder” analysis. A person might have “auto disc-brake dust” from working on a vehicle, coming in contact with a contaminated item, or even walking down a city street. Studies show that pedestrians test “positive” for lead, barium, antimony particulates spread to their clothing from city traffic. In addition, this testing cannot determine how long a residue was on an item, what type of weapon produced the residue, if it came from firing a weapon or just being near a shooter, if it came from a specific event, or even if it was accidently or intentionally transferred to an item from someone's hands or another item.

Organic Analysis of Gunshot Residues

Method: M.E.C.E. – Micellar Electrokinetic Capillary Electrophoresis

Limitations: The list of chemicals used in the manufacture of modern smokeless gunpowders are not “unique” to gunpowder, but, when found in certain combinations, they are.

Advantages: If none of these chemicals are found in a residue sample, but inorganic lead, barium, antimony (PbBaSb) particulates are found, it can prove they are from a “non-gunshot residue” source, such as “auto disc-brake dust”. Ammunition manufacturers have recipes for each caliber and load of ammunition they make. Many have been identified by scientists and published in the Journal of Forensic Science. If an evidence item has “organic” testing, it is possible to identify a specific weapon, ammunition, caliber, or grain load, as the source of the residues.

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Factors Affecting Identification
of Organic Gunshot Residues (O-GSR)

1. O-GSR Formation
   1. gunpowder shape and size
   2. completeness of gunpowder burn
   3. gunpowder composition
   4. burn rate
   5. burn thermodynamics
   6. weapon condition – clean, worn, etc.
2. O-GSR Deposition
   
   1. caliber of weapon
   2. type of weapon – revolver, semi-auto, etc.
   3. ejection port location
   4. weapon condition (again)
   5. wind conditions
   6. random particle trajectories
   7. which hand was used to fire a weapon
3. O-GSR Persistence
   
   1. time since deposition
   2. cleanliness of the hands or other surface
   3. surface of the item where deposited
   4. post-firing activity with item
   5. quantity of deposition samples
4. O-GSR Recovery
   
   1. sampling method used to lift residues
   2. sampling location – clothing, surface, hands, etc.
   3. quantity of sample (again)
   4. time since deposition (again)
   5. cleanliness of hands (again)
5. O-GSR Analysis
   
   1. sample preparation
   2. type of gunpowder (single, double, or triple base)
   3. original COGC
   4. detection limits
   5. analysis method employed
   6. environmental exposure