Federal Lawsuit Includes Claims Against Baltimore Criminalist for Mischaracterizing Gunshot Residue Evidence

On Monday, Sabein Burgess filed a lawsuit in the United States District Court for the District of Maryland against several defendants, including Daniel Van Gelder. Van Gelder, you might recall, is the Criminalist who performed a fracture analysis of the windshield wiper lever from the Nissan Sentra belonging to Hae Min Lee. In 2014, Burgess had his 1995 conviction for murdering Michelle Dyson reversed based upon a sworn affidavit by Charles Dorsey, who admitted to shooting Dyson. But, if Dorsey killed Dyson, how was Burgess convicted? 

According to Burgess, he came home to find Dyson shot and cradled her body. At trial, Van Gelder testified that Burgess's hands were swabbed for gunshot residue and that "'[e]ither [Burgess] fired the gun or his hand was right close to the gun.'" Van Gelder "dismissed defense suggestions that the residue on Burgess's hands had transferred from Dyson as he cradled her."

Burgess's lawsuit contends that there were two serious problems with this testimony.

Here is the relevant portion of Burgess's lawsuit:

30.  First, Defendant Van Gelder’s falsely reported that GSR swabs were taken from the "webbing" of Plaintiff’s hands – between the back of the thumbs and forefingers.  But the "webbing" of Plaintiff’s hands were not swabbed; instead, the technician swabbed the inside of the palms of Plaintiff’s hands. 

31.  That lie was important because Defendant Van Gelder used it to falsely state that the GSR results showed that Defendant either fired a gun or was adjacent to a gun that was fired.  According to Defendant Van Gelder, there could be no other reason for GSR to show up on that part of Plaintiff’s hands. 

 32.  Second, Defendant Van Gelder also falsely stated that any positive GSR finding from Plaintiff’s hands could not have been the result of the transfer of GSR particles from Ms. Dyson to Plaintiff when Plaintiff was cradling her in his hands after she was shot.  That statement was not only patently false, but also had no legitimate basis in science.

So, are these claims accurate?

Regarding the first claim, it is standard operating procedure to swab the webbing of a suspect's fingers because chemical residue in the webbing is most consistent with the suspect having discharged a firearm (or being in close proximity to the firearm when it discharged). For instance, in Jones v. State, 74 A.3d 802 (Md.App. 2013), the Court of Special Appeals of Maryland noted that Detective Thomas Hitty

explained that a GSR kit consists of multiple small swabs that are rubbed on a suspect's hands and the webbing of the fingers to collect any chemical residue given off by a discharged firearm.

For an example of the type of GSR testimony you might see in a shooting case, consider this Q&A with Criminalist Ronald Helson in People v. Lazos, 2007 WL 5248516 (Cal.Super. 2007):

Q. WHAT WOULD IT MEAN TO YOU TO HAVE POSITIVE GUNSHOT RESIDUE ON DETECTIVE WHELAN'S RIGHT HAND -- IN THE WEBBING OF HIS RIGHT HAND CONSISTENT WITH HAVING HELD A GUN LIKE SUCH SO THEY DO THE SWABBING, SEND IT OFF AND IT GETS MICROSCOPICALLY EXAMINED AND COMES BACK POSITIVE FOR UNIQUE PARTICLES OF GUNSHOT RESIDUE?

WHAT WOULD BE YOUR TESTIMONY AS A GUNSHOT RESIDUE EXPERT AS TO THE MEANING OF A POSITIVE RESULT?

A. MY REPORT WOULD READ THAT DETECTIVE WHELAN EITHER FIRED A WEAPON OR TOUCHED A WEAPON THAT HAD BEEN FIRED OR WAS IN CLOSE PROXIMITY TO A WEAPON WHEN IT FIRED.

If Burgess is correct that the webbing of his fingers was not swabbed for GSR and that Van Gelder testified that swabbing of the webbing revealed the presence of GSR, his testimony was thus doubly problematic.

What about Van Gelder's apparent claim that the GSR finding from Burgess's hand could not have come from the transfer of GSR particles when Burgess cradled Dyson? That seems inconsistent with the expert testimony I've seen in any number of cases. For instance, in Gregg v. State, 976 A.2d 999, 1001 (Md. 2009), the State's expert witness

explained that [GSR] particles could have been transferred to Appellant's hands if they were adjacent to a gun when it was fired, or if he touched a surface with gunshot residue on it.

Similarly in In re the Personal Restraint of Stenson, 2011 WL 4562933 (Wash. 2011), the jury was told that

GSR could have been transferred to the inside of Stenson's right pants' pocket when: (1) Stenson was placed in Deputy Funscher's patrol car; (2) the pants were sent to the FBI laboratory for testing and then held in State custody for one year before the dabs were collected; (3) Stenson checked Frank Hoerner for signs of life; and (4) Stenson cradled and touched his dying wife's body.

In addition to the possibility of secondary transfer of GSR, there are several other problems connected with GSR, some of which are detailed in this Baltimore Sun article about the 1999 prosecution of Tyrone Jones in connection with the murder of Tyree Wright. Sometimes, however, the problem lies not with the limitations of GSR evidence but with the Criminalist or the police department. According to the article,

They found one unique gunshot residue particle - the fused barium, antimony and lead - on the left, Jones' non-dominant hand, according to the notes....

At the trial, Daniel Van Gelder, one of the department's gunshot residue examiners, told the jury that police had found 17 gunshot particles on Jones' left hand.

The defense lawyer, Polansky, did not challenge him. Polansky said in a recent interview that he had not known at the trial that there was only one unique gunshot residue particle, and that Van Gelder had misstated the number.

As was standard practice at the time, the police had not given prosecutors, and prosecutors hadn't given Polansky, the lab notes underlying their report, only the final conclusion that said, "Gunshot primer residues were found on the hand(s) of the suspect."

The difference between one particle and 17 can be huge at a trial. Many experts and police departments - including the Maryland State Police - say one particle is as likely to come from contamination as from a gun.

The FBI goes further, saying one particle is not enough to label someone "positive" for gunshot residue. It needs at least three to start using the evidence, according to its protocols.

In fairness to Van Gelder, he actually did allow for the possibility of a secondary transfer of GSR in his testimony at Jones's trial:

"There are other possibilities," he said. "And that is if somebody fires a gun and then hands the gun to you, that gun would contain some particles on it that would get onto your hand."

In the end, though, the result was the same as the result in the Sabein Burgess case: a wrongful conviction.  Jones's conviction was eventually thrown out in 2010 due to a multitude of problems, including failing to turn over an exculpatory police report during discovery.

-CM