Tuesday, January 12, 2016
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.