EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, January 12, 2016

The Case Where EDTA Evidence Was Excluded & the EDTA Exhibit in the Steven Avery Case

This post is following up on my prior post (here) about EDTA testing in the Steven Avery/"Making a Murderer" case. A lot has been made of the fact that "Marc LeBeau, head of the chemistry unit at FBI headquarters in Virginia,...used...EDTA testing that the FBI had used only once before — in [O.J.] Simpson's 1995 murder trial." This is literally true. Evidence of EDTA testing had only been used at trial once before. But it wasn't the only attempt to introduce such evidence.

In 2007, another California man sought to introduce evidence of EDTA. His is a fascinating case, deserving of its own podcast or Netflix series. I will get to his case in subsequent posts. In addressing that defendant's argument, the court noted that

To date, the sole case in which EDTA test results have been admitted is People v. Orenthal James Simpson....There, Dr. Ballard did not participate directly in the EDTA testing....In the only case where Dr. Ballard's testing results were offered, New Jersey v. Josh Pompey, the New Jersey Superior Court soundly rejected both the credibility of Dr. Ballard and the reliability of EDTA testing in ruling that EDTA evidence was not admissible. 

I don't have access to the facts of the Pompey case, but here is how the court described

In the only other case where the admissibility of EDTA test results has been considered, New Jersey v. Pompey, Dr. Ballard conducted the testing and claimed to have found “forensically significant” amounts of EDTA in several blood stains. However, the Pompey court strongly rebuked Dr. Ballard for failing to “provide[] a simple, scientific context within which to measure and compare his findings” leaving the court “with the impression that Ballard omitted the information to simultaneously maintain, magnify and disguise the import of his allegedly significant findings of EDTA.”[FN30]....The Pompey court accused Dr. Ballard of “selectively adher[ing] to a scientific method” and that he “had an agenda to effectuate outcomes that support the defendant's tampering theory.”...

For example, in Pompey, one of the stains in which Dr. Ballard found an “elevated” EDTA level consisted solely of the victim's blood, which had never been preserved in a purple-topped tube....Similarly, Dr. Ballard was criticized for testing two stains together, neither of which had been linked to the alleged perpetrator, and pronouncing the aggregated EDTA number as forensically significant....Dr. Ballard did not normalize the aggregated numbers to account for the multiple stains....

Calling Dr. Ballard's analytical methods “haphazard and unreliable,” the Pompey court stated the following conclusions:

In sum, he used valid science (gas chromatography/mass spectrometry) to obtain a product, glibly and unscientifically dismissed EDTA from sources other than the purple-topped tubes, and took a gargantuan leap to a conclusion that is unsupported by science, facts in the record or even common sense.

Ballard skewed the presentation of his data, obscured the significance of his findings and changed his hypotheses to suit defendant's tampering theory. Ballard did not demonstrate that his conclusions were predicated on a reliable foundation. Rather, his constant equivocations discredited his method of reasoning and thus rendered his ultimate conclusions worthless....

___________________

FN30. The Pompey court was troubled by Dr. Ballard's failure to explain the units for his various calculations. In this case, Dr. Ballard provided certain standard “concentrations” for EDTA in blood at the tutorial. In the report of his results, an “EDTA concentration” heading appears without any further explanation. Only after noticing an important disparity in the units presented at the tutorial (ng/L) and the units employed in Dr. Ballard's results (ng/mL) was the Court able to discern that the “EDTA concentration” referenced in his results denoted the concentration of EDTA in the buffer fluid, not the concentration of EDTA in blood.

Obviously, it's tough to draw anything in the way of firm conclusions without knowing the full facts of the Pompey case. It's also difficult to tell how much of a problem the New Jersey Superior Court had with EDTA testing as a general concept as opposed to the way it was done with Dr. Ballard. That said, the way that the Pompey court treated the EDTA evidence certainly provides a stark contrast to the way that it was treated in the Avery case.

By the way, for those interested in source documents, here is the exhibit containing the EDTA test results from the Avery case: Download EDTA. Unfortunately, this exhibit is terse. It doesn't list (1) extraction method; (2) testing method; (3) Limits of Detection; or (4) control conditions. Keep these facts in mind as you read my posts about the California case.

-CM

https://lawprofessors.typepad.com/evidenceprof/2016/01/this-post-is-following-up-on-my-prior-post-here-about-edta-testing-in-thesteven-averymaking-a-murderercase-a-lot-has-been.html

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Comments

per our chemist here. The EDTA will not change if taken from a vial sample and placed in a car. The elements will not degrade it. The size of the specimen in fact could give a false report if there was not enough for a proper testing.
NavyMom

Posted by: NavyMom | Jan 12, 2016 6:10:12 AM

1. This "scientific" report is garbage, specifically because of its terseness.
2. please excuse me if this has been asked/answered before...was the styrofoam box that contained Avery's collected blood tube ever DNA tested? Whoever opened the box and handled the tube may have left DNA material (the so-called "touch DNA"). And no doubt that the haphazardly placed scotch tape on the side of the box (not referring to the the evidence tape) has gobs of epithelial cells available for DNA testing. Of course, everyone listed on the chain-of-custody would have to be eliminated as possible contributors of any DNA found.

Posted by: zoe | Jan 12, 2016 6:19:10 AM

https://www.researchgate.net/publication/13831271_The_analysis_of_EDTA_in_dried_bloodstains_by_electrospray_LC-MS-MS_and_ion_chromatography

Here is a paper published in November of 1997 which details the testing of blood samples via the same process mentioned on the EDTA report linked to above. I wonder if the FBI lab did this testing before or after they tested the Avery evidence.

Posted by: Jim | Jan 12, 2016 9:06:07 AM

I guess the vial itself isn't the only possible source of Steven's blood - if anything, it would be easier to steal and plant evidence from something not actually entered into evidence, e.g. the needle used to draw the blood, since thrown into a sharps bin.

Posted by: Cupcake | Jan 12, 2016 10:21:55 AM

cupcake the sharp used to draw Avery's blood would have been disposed of 8 years previously. Even a sheriff's office, or general lab would not hold on to their sharp boxes for that long. I see where you were going though.
NavyMom

Posted by: NavyMom | Jan 12, 2016 10:37:42 AM

Interesting that they mentioned that EDTA chelates iron but no mention of calcium.

Posted by: Bruce | Jan 12, 2016 12:02:15 PM

Navymom - but surely we don't know when the evidence was 'planted' (if indeed it was) - couldn't that have happened 8 years previously too?

Posted by: Cupcake | Jan 12, 2016 12:32:40 PM

Bruce that is interesting.

If the protocol above is the protocol the FBI lab used to test the samples from the Rav4 I'm not sure that the defense has a strong argument to say the blood was planted from the tube. If they were able to confirm the presence of EDTA from a sample 1mm square it seems unlikely they wouldn't have found EDTA if it was in the blood samples.

Posted by: Jim | Jan 12, 2016 1:34:28 PM

Colin, quick question. Not sure if you have seen the series yet or are responding to evidence issues people have raised, but the Avery trial was moved to neighbouring Calumet County but the jurors were bussed in from Manitowoc. I thought the entire purpose of changing locations of high profile/controversial trials was to presumably get a juror pool who may have been less exposed to it and are theoretically less likely to have preconceived ideas/been exposed to media etc. So, what’s point of changing the physical location of the trial but still pulling from the jury pool of the original jurisdiction? Kratz the prosecutor was brought in from Calumet but why not also have jurors from there?

The duelling press conferences after each day’s trial was also bizarre (to me, an Australian).

Posted by: Amanda | Jan 12, 2016 3:40:41 PM

Jim, the Haulbach murder happened in 2005.

There was a lab expert who testified that the results, as given at trial, do not specify the sample size or sensitivity of the testing performed. She said that it's impossible to tell from the report whether EDTA was not present or was simply to low on concentration for their method to detect. With such competing views, it would be impossible to decide whether the test was legit or not. If I was a juror, I'd say it was inconclusive at best and use the rest of the evidence to decide.

Do not forget that the vial was punctured through the stopper. I can't yet determine how blood is extracted, at a lab, through such a stopper.

Posted by: Megan Pawlak | Jan 13, 2016 6:35:59 AM

Megan, I noticed that after re-reading the article. I believe this protocol was developed during the O.J. trial in response to the claims of evidence planting in that case.
My point was only that if you consider the test report with the published paper about the testing protocol listed on that report that it makes the claim of planted evidence less likely. There is no doubt that the report could have been more detailed regarding the protocol. I would love to see the transcript of the trial to see the entirety of the testimony about this testing though.
I don’t find the hole in the top of the tube to be significant at all. In my experience having my blood drawn the entire tube, including the colored top, is inserted on the collection needle.
To see what I mean watch this video: https://www.youtube.com/watch?v=e58lLJ-2gBI

Posted by: Jim | Jan 13, 2016 8:52:20 AM

Jim, the protocol was developed AFTER and BECAUSE of the OJ trial. The thorough analysis was published in a peer-reviewed journal in 1997. It was not developed in weeks specifically for this trial.

Posted by: Bill | Jan 13, 2016 9:39:22 PM

Bill: You are correct. Regardless, I think the bigger question is still whether or not this is the testing protocol that the FBI dusted off and used to test the blood from Teresa's RAV4. If it is then how does this information impact SA's claims of evidence planting?

Posted by: Jim | Jan 15, 2016 2:13:39 PM

Colin, love your work on Undisclosed. Here's a question that I've been thinking about in the Steven Avery Case. Does anyone really know if the EDTA blood tested by the FBI was in fact Steven Avery's? I can understand if the results came up that there was no EDTA, but I've wondered if the samples given to the FBI also showed it was Steven Avery's blood. Thanks brother and keep up the amazing work.

Posted by: Bryan | Jan 22, 2016 11:03:09 AM

Sure someone has already answered this, but even if the EDTA itself isn't detectable, shouldn't labs be able to tell from the state of the blood in a sample whether it has ever been treated with a coagulant?

Posted by: Jenny | Jan 26, 2016 10:15:51 AM

Whoops, make that "anticoagulant"

Posted by: Jenny | Jan 26, 2016 12:02:12 PM

Speaking of the OJ Simpson case, was the EDTA matter ever successfully resolved? It sounds like there are still arguments going on as to whether or not it was detected, if it may have been degraded to the point of indetectability, the nature and quality of the test used by Agent Martz and so on.

Posted by: GregB | Mar 26, 2016 5:14:18 AM

Read the trial transcripts online.... the test used in Avery's case is not the same test used in the OJ case.

Posted by: Renaecharles | Jun 4, 2016 6:59:45 PM

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