Potential problem in gun cases

City police warn lawyers that residue tests may be flawed

Juveniles' case dropped

New policy bars testing at stations using firing ranges

October 26, 2001|By Sarah Koenig | Sarah Koenig,SUN STAFF

After discovering possible contamination of tests to determine whether a suspect could have fired a gun, the Baltimore Police Department has changed its test policy and warned prosecutors that some of their cases could contain faulty evidence.

The city state's attorney's office said this week that it has known of the problem with gunshot residue tests since late July but has not alerted all defense attorneys - notification the city public defender's office says should have come long ago.

Neither the police, prosecutors nor defense attorneys know how many criminal cases have been affected by potential contamination, although they say the number is probably small. However, they agree the problem could weaken pending cases and invite appeals.

One case involving five juveniles charged with attempted murder and handgun crimes has been dropped, in large part because of the possible contamination.

On June 1, Ed Koch, director of the city police crime laboratory, says he learned that three of the city's nine police district headquarters had firing ranges in use, meaning the telltale chemicals detectives look for on a shooting suspect's hands also could be present in the police buildings, potentially skewing test results for gunshot residue.

Koch immediately notified the Police Department that it should stop testing suspects for gunshot residue at the Northeast, Western and Eastern districts. Lawrence C. Doan, a senior city prosecutor in charge of training, said the Police Department told the state's attorney's office about the problem in late July.

An analysis of the air and surfaces at all nine districts found gunshot residue in abundance at the Northeast District station, where a firing range for officers is used daily. The ranges in the two other districts are used only occasionally.

"At the Northeast, it was a real problem," Koch said. The contamination there was enough that anyone in the building could test positive for gunshot residue, just by touching a desk or sitting on a couch, he said.

Although residue picked up that way would be minimal compared to highly concentrated residue resulting from firing a gun, the tainted samples could cast doubt on the tests as a whole, lawyers say.

The city has conducted about 680 tests for gunshot residue this year, in connection with about 600 shootings. Koch does not keep track of who was tested where, and so cannot say how many of the tests might be invalid.

The Northeast is Baltimore's largest police district and deals mainly with crimes such as burglaries and stolen cars, said Deputy Police Commissioner Bert F. Shirey.

The firing range at Northeast has been in use for at least a decade.

Doan said prosecutors have been told that if they have cases with gunshot residue problems they should disclose that to the defense. He could not say how many cases are affected, adding that the impact would depend on how strong a case was otherwise.

"We don't know the scope of this thing, and we're still trying to determine that," he said. His office has not decided on a policy for telling the defense bar about the contamination. "I think we're going to have to give a general notification," he said.

Baltimore Deputy Public Defender Bridget Shepherd did not know of the gunshot residue problem until a reporter informed her this week.

"I believe we should have had this disclosed to us," Shepherd said. She planned to instruct public defenders to check their current and past cases. If someone was convicted in part because of gunshot residue evidence that police now think could be tainted, "I think we would have a motion to ask for a new trial," she said.

Private defense lawyer Leslie A. Stein agreed, saying it was "outrageous" that the state's attorney's office had not announced the problem. He found out about it by accident, he said, when he called the police crime lab regarding a murder case.

Although his client was convicted, Stein said he was able to neutralize the residue evidence by cross-examining the state's expert about contamination problems.

"In talking to three members of the jury afterwards, they all told me they laughed at the [gunshot residue] test," he said.

Gunshot residue evidence does not necessarily prove someone shot a gun, but it can help convince juries that a defendant was at the crime scene. "It's like DNA," Shepherd said. "People hear it and they equate it with: Must be guilty."

In the absence of other, stronger evidence, gunshot residue can be key to a prosecutor's case. That was the situation in a recent case of five Baltimore juveniles charged with attempted murder and handgun crimes. All had been tested at Northeast, and a city prosecutor told the defense about the possible contamination.

Because prosecutors did not have significant additional evidence, the state's attorney's office was forced to drop the charges for all five, Doan said.

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