Why JHP?

[BullfrogKen]

The Lehigh Valley’ paper Morning Call reported an astonishing amount of detail on the case, much more than I’d expect from a newspaper.

We will see here that the ballistics lab actually fired at least one of the three evidentiary rounds found in the gun. Additionally, since the matter of exactly what round was in the gun was in question, the lab conducted tests using rounds found in Bias’ home separate and apart from those in the gun.

During cross-examination, Dr. Louis Roh, deputy chief medical examiner of West Chester County, N.Y Roh (working for the defense) identified a speck on a gunshot residue test pattern, state's exhibit 81, as being gunpowder. The target was one that was used to test one of three bullets found in Bias' revolver. The shot was fired from a distance of 50 inches.

George Fassnacht, a former weapons officer for the Central Intelligence Agency (working for the defense) questioned the pattern testing conducted by Sgt. Carl Leisinger, supervisor of firearms identifications for the state police. He said the same type of powder, the same amount of powder and the same bullet weight would be needed to accurately make comparisons with the fatal bullet.

"Test patterns should have been made with the same powder and gun," he contended.

In earlier testimony, Sgt Leisinger said he used the death weapon and used the same kind of powder used in all of Bias' hand-loaded bullets.​

I’m not sure what to make of this, because during one of the trials the defense team was offered the opportunity to test the handgun, but declined. However, we do see New Jersey’s Ballistics Expert testifying that the hand loading process is very accurate.

Fassnacht admitted that he refused to conduct his own test with the firearm in August 1989 because he felt there was no purpose in testing. He said hand-loaded bullets were used. "I wouldn't use a hand-load to conduct this kind of test."

However, in later testimony he said testing must be done with the exact hand-load.

During rebuttal testimony, Sgt Leisinger said that if a hand loader handweighs each powder load and uses the same loading equipment, the process is very accurate.

In earlier testimony, defense witness Thomas Major stated that the powder scale he and Bias used was very accurate.​

Bias and defense attorney John Lanza contend that Bias' hand-loaded bullets would not leave powder burns at close ranges.

The prosecution is trying to prove that Bias shot his wife from across the bedroom with a special cartridge that he had loaded into the revolver that night. The state argues that there were no powder burns on the body and that the fatal bullet was different from other bullets found in the revolver.

Sgt. 1st Class Carl Leisinger III, of the New Jersey State Police Firearms I.D. Bureau, testified on his examination of Bias' hand-loaded ammunition and tests conducted for gunpowder residue.

Leisinger said the 110.2-grain hand-cast lead semi-wad-cutter bullet that killed Lise Bias was fired from Bias' revolver. He said the Remington-Peters shell casing and primer had distinctive marks showing it was fired from the gun.

Leisinger said the other three cartridges found in Bias' revolver were 133.7-grain cast lead semi-wad-cutter bullets with 3 grains of small-disc powder and loaded in federal casings. A fourth federal cartridge was found on the dresser in the bedroom. Other 110.2 semi-wad-cutter bullets loaded in Remington-Peters casings were found in Bias' attic. Tests showed that these bullets were loaded with 3.1 grains of powder.

Ballistics expert Sgt. Carl Leisinger III of New Jersey State Police testified about gunpowder residue tests that he conducted using hand-loaded .38-caliber bullets found in Bias' revolver and in his house.

Leisinger showed the jury gunpowder test cloth and said the bullets found in the revolver deposited residue on the cloth at distances of 20 and 30 inches. Hand-loaded bullets found in Bias' house also showed residue patterns when fired 20-30 inches from the test target, he said.
​

We see here that the ballistics lab did indeed conduct a wide range of tests, including ones with light powder charges.

State police ballistics expert Sgt. 1st Class Carl Leisinger testified about additional gunshot residue tests that he conducted in April 1989 and October 1990.

"It seemed that no matter how low I went with powder and how heavy a bullet I used, there was recoverable residue at 36 inches" from the muzzle, Leisinger testified. "There was very heavy residue at 20 inches. There would be massive recovery at 5 inches from the blast."
​

And from the final trial and conviction

Capt. Carl Leisinger III, a state police firearms expert, had tested the Bias' Smith & Wesson .357 magnum revolver in 1989. He also tested hand-loaded cartridges found in their home. Leisinger conducted several series of gunshot residue tests to help determine how close the muzzle was to Lise Bias' head. He did new tests on April 10, and photographed the revolver firing in the dark to show how far the muzzle flash goes when using the same gunpowder, amount of powder and lead bullet that was found in the Bias' revolver.

Leisinger said the muzzle flash was "in bulk at four inches, tapering off at five inches and undiscernible at six inches. It is fire. It is hot enough to singe hair and to burn skin if it touched it."

Leisinger said gunshot residue can travel up to four feet from Bias' revolver. The new residue tests using Bullseye gunpowder at 3.1 grains with a 110-grain lead semi-wadcutter bullet, just as Bias had hand-loaded years earlier, showed "tremendous carbonaceous black smoke and gunpowder" at distances of two to six inches from the muzzle. Leisinger said carbonaceous black smoke residue would be in the victim's hair if the revolver were fired from two to six inches away.

The importance of Leisinger's new tests is that in previous trials Dr. Isidore Mihalakis, the medical examiner, testified there was no singeing of Lise Bias' hair and no gunshot residue was found in her hair around the wound, nor was it found on her nightgown.
​

Now in your famous article you said -

The gun had been loaded with its four rounds at random from the box that contained 2.3 grain, 2.6 grain, and 2.9 grain Bullseye reloads. There was no way to determine which of the three powder charges was behind the bullet that entered Lise Bias' head.​

There were no rounds admitted in evidence with less than three grains of powder.

Other ammunition was confiscated from the Bias home as evidence after Lise's death. The warrant search reported turning up eight semi-wad-cutter .38 Special cartridges from a desk in the attic; another from elsewhere; "two jacketed .38 cal"; and "one spent casing (headstamped) W Super W 38 SPL P."

However, the test ammunition taken from the Bias home and submitted to the crime lab for examination included cartridges with R-P, Remington-Peters, headstamps. The loads in the gun, and in the box it was loaded from, were all in Federal P cases.​

As well they should have. The empty casing was a handload assembled using a Remington-Peters case. The recovered bullet was 110 grains. The unexpended rounds were 133 grain bullets over Federal cases. They were not “all Federal cases”. The fourth Federal round was found, unexpended, on the dresser in the bedroom.

Apparently, the handloads taken for testing were full power loads. They deposited visible gunshot residue until a distance of 50" was reached. Factory Federal 158-grain lead semi-wadcutter P would leave visible GSR at that distance or greater.

The three remaining cartridges from the death weapon could not be disassembled or test-fired. They were the property of the court, evidence in what was developing as a murder case, and the necessary tests would literally "destroy the evidence." It was not permitted.​

Both of those statements are patently false. In fact, Leisinger at the state’s Ballistics Lab testified that he conducted testing with each of the light-powered rounds found in the home. The lab may not have allowed you, or anyone from the defense team to take those three evidentiary rounds for testing, but they most definitely conducted it.

In fact, they did precisely what I said a crime lab would do earlier in this discussion. They disassembled each one; identified what comprised each round; weighed the powder and bullet, and finally loaded one and fired it for testing – destroying it in the process.

What I said would happen, happened here. The ballistics lab had ammunition recovered from the scene and used the reloader’s ammunition to conduct their testing, replicating it, in this case over and over.

However, they were not allowed to do that because the court would not take the defendant's word (in testimony or in his meticulous loading records) as to how that particular cartridge was loaded.

The inescapable elephant in the room is, we have a case on point -- NJ v. Bias -- in which testing of the loads the handloader said were in the gun was not accepted.

It appears it wasn’t just because they wouldn’t take his word for it. There were no rounds found anywhere at the scene with less than 3.0 grains of powder. Now from your work it appears you tried to introduce evidence of rounds loaded with charge weights that weren’t consistent with what was found at the scene. Anywhere. The state managed to find rounds in the attic that appeared in many ways to match the expended round in the gun, but those with 2.3 and 2.6 grains of powder seem to have disappeared just like the gun shot residue. So the complaint is the judge wouldn’t allow defense to introduce evidence not consistent with anything found at the scene based on nothing more the Defendant’s say-so?

In the words on Boomer at ESPN – C’mon man! This isn’t about reloading data not being permitted; it’s about the lack of evidence at the scene to corroborate what you wanted to introduce. I can see why the judge wouldn’t permit it.

And I don’t know how you define meticulous reloading, but part of the discipline for me and everyone else I know who has good habits doesn’t store rounds with differing characteristics in the same box.


Perhaps there was only one 2.3 grain load left, and it was the one that was fired in the gun. I guess one answer could be to be more meticulous about we keep our rounds in our boxes, and have enough available for the state to seize and test. But that would be the case with factory-manufactured ammunition as well. I can’t envision many scenarios where the defense would be permitted to admit the testing of a particular round that was found nowhere among the evidence seized.

But that case has a lot more problems than just poor ammo storage habits. A right-handed woman using her left hand to shoot herself in the head; friends and family testifying to behavior completely inconsistent with a suicide; and a Defendant who changes a material answer to the police. It seems the jury made a decision of who to believe on a whole host of factors, and it wasn’t Bias.

I’ll say the actual testing protocol used doesn’t support your assertion that a Forensics Lab can’t or won’t replicate handloaded ammunition for ballistics testing. In this very case it looks like New Jersey sure went out of its way to do it for you. And if you want to continue using this article, you might want to correct it. As it is it’s full of material errors.

 

[massad ayoob]

Ken, it would be helpful if you could provide a link to the newspaper article you quoted. It was my understanding from defense counsel that this information was never put in front of the jury, and I believe you may be quoting an evidentiary hearing or voir dire of evidence that was outside the hearing of the jury.

I'm out the door and won't be able to contact the lawyers in NJ for their side of it until Monday anyway.

 

[357 Terms]

Ayoob

I believe you may be quoting an evidentiary hearing or voir dire of evidence that was outside the hearing of the jury.

Regardless...it certainly does show why his "phantom" load data was not allowed.


Again, thanks Ken.

 

[LiveLife]

Thank you all for some great information and discussion. < taking even more notes >

Continuing from post #102, another shooting example of "justifiable" self-defense shooting that happened on 1/4/2012 with DA response. Can someone comment whether the use of handloads/reloads would have mattered in these three examples as I could easily be in such situation where I live. TIA

Example #3:
A 90-year-old retired law enforcement officer defended his home against an intruder - http://abclocal.go.com/kgo/story?section=news/local/north_bay&id=8490389

"It happened in broad daylight ... The suspect forced his way into the house and was met by 90-year-old Jay Leone, a retired law enforcement agent who confronted him, shooting him three times. The suspect then shot Leone once."

DA Response: "We now know the legal fate of the 90-year-old ex-lawman who got into a gunfight with an armed intruder who broke into his Greebrae home on Wednesday; Jay Leone is not expected to face charges. Both Leone and the intruder are both are recovering at the Marin General Hospital.

It looks like he may not face charges since California law allows the use of deadly force against an intruder. It is commonly known as the "Make My Day" rule."

 

[Frank Ettin]

...You also made points about the impossibility or uncertainty of determining proximity with a firearm without the specific, even exactly similar, ammunition....

No. I made a point about the admissibility of expert opinion testimony by the defense's expert witness to challenge the evidence put on by the state.

Remember in both Bias and Willems it was the state's contention that the shot was fired at a particular distance. The state in each case introduced its evidence to support its contention. And in each case, the defendant needed to try to introduce expert opinion testimony (based the the defense expert's GSR testing of exemplar rounds) to rebut the claims made by the state. In Bias, the defendant was unsuccessful. In Wlllems, the defendant was successful in introducing the testimony into evidence, successful challenged the contention of the state, and won his acquittal.

...The information will exist. The state will have it. Subpoena it...

As I pointed out in my discussion of the attorney work-product doctrine, based on several Supreme Court decisions evidence in possession of the state favorable to the defendant is available through discovery in a criminal case. But what in any given case is actually in the state's possession?

You are on trial because the state has concluded that it has sufficient evidence to be able to convince a jury beyond a reasonable doubt that you are guilty. I doubt that the state would be pressing the case, however, if it had in its possession forensic evidence clearly contradicting a core element of its case against you.

...The Forensics Lab doesn’t work for the Prosecutor any more than the Medical Examiner does. Just like the Judge, they work for the state. Their work is available to both the prosecution and the defense. And because of the nature of their work, barring some narrow and well-defined circumstances, the defense isn’t going to be able to conduct their own autopsies, or test the evidence garments with the GSR on them. Those agencies work for the state, and they strive for unbiased results and reports....

[1] Yes, the Forensic Lab, ME, judge, and the police and prosecutor for that matter, do try to fulfill their responsibilities in a professional and unbiased manner. But in any given criminal case the defendant will be challenging one, or all, of them. The defendant would not be on trial unless the prosecutor believed, based on the material supplied to him by the police, the Forensic Lab, and/or the ME, that he had sufficient evidence to secure the conviction.

[2] Certainly a defendant may challenge rulings made by the judge. That's what an appeal is about. Sometimes a defendant will have need and reason to challenge the findings and opinions of the Medical Examiner. There are independent forensic pathologists who might be engaged to conduct on behalf of a defendant further pathological studies, or review and challenge those of a Medical Examiner. Similarly a defendant may need his own investigators to challenge the work of the police. Or the defendant might need his own forensic experts.

[3] And when your defense to the criminal charge is that you acted in justified self defense, your challenge to the state's prosecution takes on an additional dimension. It's not enough for you to create a reasonable doubt, as it is in most criminal defense work. You must affirmatively put on evidence establishing that you satisfied the legal standard for justification.

...Much of what you contend doesn’t happen in the lab, or is impossible to determine, does happen,...

But I've really not been talking about what goes on in the lab. I've been talking about what goes on in the courtroom. And in the courtroom, if I, on behalf of the defendant offer opinion testimony of the defendant's expert regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition that testimony conflicts with the evidence being relied on by the prosecution, the prosecutor will strenuously object. And based upon the rules of evidence the judge will sustain the objection (at least that's highly probable because the highly unlikely does sometimes happen).

 

[918v]

It looks like he may not face charges since California law allows the use of deadly force against an intruder. It is commonly known as the "Make My Day" rule."

I wanna clarify this a bit. California Penal Code section 198.5 shifts the burden of proof from the defendant onto the prosecution in home invasion cases. (in CA, the defendant has the burden of proving the justification for the deadly force) It does not specifically allow deadly force against an intruder, just makes a REBUTTABLE presumption the resident of a dwelling was in fear for his life at the time of the intrusion. The DA can still prosecute if he thinks he can persuade the jury the resident was NOT in fear for his life, i.e. if the intruder was unarmed, a child, a person physically smaller and weaker than the resident, etc. This law applies only to your home, and does not cover you in somebody elses house. In fact, we had a case where some guy shot his GF's ex in her trailer and tried to use this law. The appealate court ruled he was not at his house, and he used excessive force cuz the ex was unarmed. Same scenario as in the Fish incident, except dude was breaking into a trailer.

 

[Frank Ettin]

...California Penal Code section 198.5 ... just makes a REBUTTABLE presumption the resident of a dwelling was in fear for his life at the time of the intrusion...

That's essential how a Castle Doctrine works. For example, compare --

California Penal Code 198.5:

198.5 Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred...

Kentucky 503.055:

503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle -- Exceptions.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred...

The primary difference is that the Kentucky law extends to an occupied vehicle.

...California Penal Code section 198.5 shifts the burden of proof from the defendant onto the prosecution in home invasion cases...

Not entirely. It creates a presumption that can make it easier for the defendant to establish his affirmative defense.

With the presumption of Penal Code 198.5, the defendant would not have to show specifically that he, "...held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household..." if he can show both that (1) the person shot "...unlawfully and forcibly enters or has unlawfully and forcibly entered the residence...."; and (2) he "...knew or had reason to believe that an unlawful and forcible entry occurred...."

But to get the presumption, the defendant must still establish those threshold conditions.

...makes a REBUTTABLE presumption...

In law, all presumptions are rebuttable.

 

[Sam1911]

In Bias, the defendant was unsuccessful. In Wlllems, the defendant was successful in introducing the testimony into evidence, successful challenged the contention of the state, and won his acquittal.

fiddletown, as near as I can see, the only reason the defendant was unsuccessful in Bias was that what he was trying to introduce as evidence was something that the court saw was utterly unconnected with the case. He claimed that he had used another type of round that was different from anything the officers found on site, in the gun -- or in on a dresser, or in a desk in the attic.

He said, in essence, "If I am allowed to enter this other cartridge for GSR testing, it will support my claims." The judge, in essence, replied, "This other cartridge doesn't match ANYTHING the investigators found on site and we see no reason to accept that you had one round of this oddball thing."

If there had been any evidence to support his assertion that he must have used one round that didn't match, it seems the court would have allowed it. But the court seems to think he was trying to introduce something of a red herring and so didn't allow that.

Had he had even ONE more round of his claimed death round in the house, the court would have accepted the introduction. But he didn't so the court didn't accept his claim.

That appears to be the real lesson of Bias. Not that handloads can't be introduced to give GSR evidence, but that you can't introduce something as evidence if there is no supportable reason for anyone to believe what you're trying to introduce is something that was really present at the crime scene.

In other words, if I've got a revolver full of handloaded XTPs and I shoot them at an attacker, the state will test any loads left in the gun, and any loads I've got at home that match them, and if they need to, they'll make up duplicates of that load of their own. All will be admissible. And the results produced by the forensic labs -- testing my own loads -- will be available to both my defense team and the prosecutor.

 

[Sam1911]

Can someone comment whether the use of handloads/reloads would have mattered in these three examples

I would say not. The only time the case is going to hinge on GSR evidence is if the testimony of those present and other crime scene evidence does not match up.

If you claim to have shot a guy from position X, and the body fell in a manner consistent with that, and some witness says, "yeah, he shot that guy from position X," and there are (or aren't) powder burns, blood splatter, etc. all consistent with that claim, the GSR evidence isn't going to be nit-picked over to this degree. It isn't necessary to either the prosecution or the defense.

And, as I'm coming to believe, it appears that IF you used handloads, the state would take them into evidence, just like factory stuff, and the forensic lab would test them, and would report whatever findings they made.

Now, if in any of those cases the defense claimed, "No! All the crime scene evidence is WRONG. The round I fired was an oddball low-charge round that I only ever made one of, and there are none others like it in my property, and no evidence exists that I had any, but that's what I used. And if you let me introduce one like it, IT will exonerate me..." -- well, then the defendant would be in trouble. The court will likely see no reason to accept the claim that the evidence you want to introduce as real. They'll think you're trying to deceive the court. And, honestly, you probably would be!

 

[LiveLife]

So, let me get this straight.

Based on what's been discussed so far (let's say the shooting happened inside my house), the primary benefit of using factory ammunition is that my reloading equipment/components won't be taken into evidence by the police, only the weapon involved in the shooting?

If handloads/reloads were used in the shooting, all reloading related equipment/components/documents/even cleaning supplies would be taken into evidence along with the weapon?

 

[Sam1911]

Another thought obtains here, based on my reading of the final lesson of the Bias case:

You're walking across a bridge. You are accosted. You shoot the gun dry. The empty cases fly over the rail into the swift water below and are gone. The bullets similarly vanish and the one that kills the attacker "overpenetrates" () and disappears into the drink as well. The State wants to prosecute you because you say you were standing in position X, near the attacker, and the State thinks you shot the guy from across the road.

The state says there is no GSR evidence as there would be if you had shot the man from up close. Your two spare mags were loaded with Buffalo Bore mega-max loads consistent with producing the wounds observed from a great distance. You say, "Not so! I had loaded my carry mag with six Federal low-flash, low power, target loads, and those will produce the results I need to support my case."

The investigators (including YOURS) will turn over every bit of earth they have to to try and find out if you actually did have any of those super-lite rounds. They'll look for a half-empty box at home. They'll check your CC receipts if they have to. Or interview the dude at the range you claim gave them to you. Whatever it takes. If there is no realistic reason to believe you ever owned six of those magic rounds, they're not going to allow them to be introduced as evidence.

The court will say there is no reason to believe that that's what you used, so there's no reason to accept any physical test of them to be introduced. Any test results will be contradictory to what we have any reason to believe actually took place, and may influence the jury in a dishonest way.

If the Bias case had involved ALL factory ammo, but his defense still wanted to claim he used one round of some other factory ammo that they could not believe he actually possessed at the time, they wouldn't have accepted that being introduced either.

 

[Sam1911]

Based on what's been discussed so far (let's say the shooting happened inside my house), the primary benefit of using factory ammunition is that my reloading equipment/components won't be taken into evidence by the police, only the weapon involved in the shooting?

What? NO. The police will take into evidence anything they want to or think might be relevant. The primary benefit in dispute here is that GSR evidence from your handloads might not be allowed to help you defend your claim.

If handloads/reloads were used in the shooting, all reloading related equipment/components/documents/even cleaning supplies would be taken into evidence along with the weapon?

According to Ken's friend, the forensic lab guy, YES, exactly. (Though...I don't know why cleaning equipment would be. But pretty much anything else that could speak to what load you really used to shoot the deceased.) They'll take anything they need to in order to reproduce the effects of the shot you took with the gun and ammo you used.

If they need to. If everything stacks up to persuade them of your claim without the GSR testing, they may not bother.

 

[918v]

A friend of mine who has worked homicide cases before told me that handloads are not taken into consideration as oftentimes the weapon is loaded with several types of different make ammo, obsolete ammo, etc. They find revolvers partially loaded. Autos partially loaded. There might be a FMJ, a JHP, a lead bullet. They stuff anything they can find.

Also consider the reality of the situation, and that is there is not enough difference between the various powders to cause a difference in the stipling pattern that can't be accounted for due to the difference between two rounds within the same box of ammo. Not every round ignites the same, burns the same, or prints to the same POI. There's not going to be much difference between WAP, which was used to load alot of Winchester's factory ammo, and WSF or HS-6 or Power Pistol. If you can find me a forensic tech that can distinguish the stipling pattern between these powders I'll swallow a 9mm round.

If we're talking the difference between a 2.7gr Bullseye load and 18gr of 2400, then I agree there's gonna be a difference, but not within powders of a similar burning rate.

 

[Odd Job]

What about different powder shapes, and their impact impressions on the base of the bullet?
And what about chemical testing of residues in the barrel of the gun? Surely those can help prove or disprove whether a certain load was recently fired in the gun?

 

[Frank Ettin]

In Bias, the defendant was unsuccessful. In Wlllems, the defendant was successful in introducing the testimony into evidence, successful challenged the contention of the state, and won his acquittal.

...as near as I can see, the only reason the defendant was unsuccessful in Bias was that what he was trying to introduce as evidence was something that the court saw was utterly unconnected with the case. He claimed that he had used another type of round that was different from anything the officers found on site, in the gun -- or in on a dresser, or in a desk in the attic.

That's really reading a lot into the fairly superficial material we have. The only way we'd really know exactly why the judge ruled as he did on the evidentiary question that concerns us would be if we had a memorandum decision. One doesn't seem to have been done here. If it had been, I'd expect it to have surfaced by now. So we have to draw some inferences based on the rather sketchy information we have.

Ken posted excerpts from a newspaper article in which the reporter appears to quote some portions of testimony at what appears to have been one or more evidentiary hearings. But we don't have the whole transcript -- only those quotes the reporter decided to include in the article. I'm not faulting the reporter, but he had no way to guess that a bunch of years later some guys in an Internet forum would be reading parts of the article trying to figure out a technical issue about the rules of evidence. But in any case, we don't know all that went on in court.

It's true that the problem with introducing the defense GSR testing had to do with Bias' inability to connect the test exemplars to the event. Without the complete transcript we don't have the full story of how the defense tried to establish that connection. We only seem to have bits and pieces on each side.

And as I, and other lawyers, have said, the key to getting the defense exemplar testing into evidence is establishing the connection between the exemplars and the event. If you're ever in this position and you will need to make that sort of connection to get helpful information into evidence, exactly how much evidence establishing the connection will you need? Certainly the more such evidence the better. And using handloads won't help.

 

[918v]

Also, if you shoot dude multiple times, the stipling pattern will be compromised. If you shoot him from more than a couple feet away, there won't be any stipling.

 

[BullfrogKen]

The only way we'd really know exactly why the judge ruled as he did on the evidentiary question that concerns us would be if we had a memorandum decision. One doesn't seem to have been done here. If it had been, I'd expect it to have surfaced by now. So we have to draw some inferences based on the rather sketchy information we have.

Yeah, and one would have thought that the data I managed to collect from an area newspaper would have surfaced in the discussion by now, too. But as I said, the story about the case as it has been told over and over just isn't based on the totality of the facts.

Ken posted excerpts from a newspaper article in which the reporter appears to quote some portions of testimony at what appears to have been one or more evidentiary hearings.

No, they were during the trials. Yes I said trials, plural. Whoever decided the paper was going to follow the case, they followed it through it's entirety. Through the hung juries, through the first conviction and appeal, up through the final and last conviction. Much of that testimony is reported in very precise detail. Frankly I myself was amazed at the level of completeness and detail. I'm not used to seeing that from a reporter. They're certainly not transcripts, but not everyone here has access to transcripts.

But you're an attorney. If you question the accuracy, completeness and relevance of what I've offered, go look it up for yourself. I provided for everyone where that information was gleaned - a publicly accessible source, although you may have to subscribe online to search the database for the dozens upon dozens of articles.


I think at a minimum it's safe to conclude the story of the Dias case, as it's been reported regarding -

• an assertion the state tested ammunition inconsistent with the evidence;
• the refusal to fully examine the composition of the rounds;
• the refusal to duplicate Dias' rounds in the manner he loaded them, and conduct GSR tests with them;

Does not square with what actually happened. The fact is it did. And it got introduced into the trial.

Again, I'm not asking you to take my word for it. Everything I've shared up to this point I've provided outside, open sources to corroborate. I don't play the, "I have inside knowledge" trick. Don't take my word for it. Don't take Massad Ayoob's word for it. Go do the research for yourself.


I've think I've done enough of other people's homework here. I guess it comes down to this. You're not going to convince me. And perhaps I'm not going to move you. But if nothing else be honest, transparent, and fully disclose the entirety of the available information before you come before us all and make definitive declarations about how the state treats reloaded evidenciary ammunition.

I'm not sure, is an acceptable answer. It's probably the most honest and truthful answer you can give. Acting the part of a protagonist, I may appear to have been arguing in its favor here, but's the one I give when pressed. The answer is reliable testing can be done. And any competent lab will do it. And the evidence can get into court.

But trials are never a sure thing; they're a gamble each time. So if asked, I don't offer anyone any surety about anything that could occur in court. It's a crap shoot every time.


Anyway. The Playoffs are about to start. Happy researching and peace.

 

[357 Terms]

Sam1911

That appears to be the real lesson of Bias. Not that handloads can't be introduced to give GSR evidence, but that you can't introduce something as evidence if there is no supportable reason for anyone to believe what you're trying to introduce is something that was really present at the crime scene

Right!

I have always wondered how the Bias case became the "poster child" for not carrying reloads. It is such a stretch!
I never have been able to grasp the logic that goes into that, or lack of.

 

[918v]

The rounds tested for the prosecution were apparently Bias' handloads.

So all this time you have been arguing that I would not be able to introduce my handloads into evidence, and yet Bias was able to.

Why would the prosecution be able to test and introduce my handloads into evidence, but I cannot?

Since the number one rule of evidence is that all relevant evidence is admissible, how is my handload evidence irrelevant if the distance of the shot is at issue?

 

[Sam1911]

If you can find me a forensic tech that can distinguish the stipling pattern between these powders I'll swallow a 9mm round.

If we're talking the difference between a 2.7gr Bullseye load and 18gr of 2400, then I agree there's gonna be a difference, but not within powders of a similar burning rate.

That seems to have been in play in Bias. It appears in his second try he wanted to say that if they let him introduce his version of the death load (containing less than 3.0 grains of Bullseye) instead of relying on the cartridges of his they found and tested (all containing just a little over 3.0 gr. of Bullseye) that his loads would not have produced the powder scorching, burning of the hair, and particle imbedment in the wound that the "heavier" loads did.

Which I think a reasonable person could dismiss off hand as bull-oney. The muzzle of the gun could hardly be more than 6 or maybe 10 inches away from the head in a suicide. There IS going to be residue, scorching, and imbedment in the wound with any gunpowder-driven projectile at such close distance.

At any rate, the judge did not allow testing of the ~0.5 gr. lighter loads, as there was no evidence that Bias actually had any at the time, or that they were in the gun when fired.

 

[Sam1911]

That's really reading a lot into the fairly superficial material we have. The only way we'd really know exactly why the judge ruled as he did on the evidentiary question that concerns us would be if we had a memorandum decision.

fiddletown, I certainly do understand that this is putting a few words into the judge's mouth. But aren't we scooping words into his maw with an even bigger shovel if we say that his reason for disallowing these other nonexistent rounds to be created and tested was because he would not accept data from handloads? They had certainly been allowed before, and have certainly been allowed in many other cases since (according to Ken's pal, anyway).

One reason appears (to this layman) to follow: why should we accept as relevant data from cartridges we cannot be compelled to believe were present at the scene?

One reason appears (again, to this layman) to be quite a stretch: In this one case, unlike many many others, I'm going to disallow handload GSR data, wholesale.

It seems that berg on which stands the whole "don't use handloads for Self Defense" argument appears to have melted away to one cocktail-sized ice cube of speculation concerning one judge's reasoning in one case.

 

[Peter_S]

Lawyers will typically post their scare tactics of "do what you want but no one else will be in the cell with you."
The chances of getting involved in a shooting period are pretty slim. The chances that your choice of ammo will be an issue are even slimmer. The chances that GSR will be a factor are almost miniscule.
It's a non-issue as far as I'm concerned.

+1 ...this makes most sense to me.

 

[918v]

I would use a cap and ball revolver. Even if I missed, I would have a smoke screen to make my escape like a ninja.

 

[Frank Ettin]

...No, they were during the trials...

Was the jury present? Matters related to admissibility of evidence would be dealt with without the jury there.

...before you come before us all and make definitive declarations about how the state treats reloaded evidenciary ammunition...

But the question has never been, "...how the state treats reloaded evidenciary ammunition...." The question is far narrower, specifically the admissibility into evidence of opinion testimony of the defendant's expert regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

...accept data from handloads? They had certainly been allowed before, and have certainly been allowed in many other cases since (according to Ken's pal, anyway)....

But that still begs the questions: when; under what circumstances; in what contexts; and for what purposes.

We're only interested in the admissibility into evidence of the defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition. No one has been able to cite a case in which such testimony was allowed into evidence.

To be fair, this sort of thing probably doesn't come up much. It's entirely possible that Danny Bias was the only defendant ever to seek the admission into evidence of the opinion of his expert based on GSR testing of handloaded ammunition.

Randy Willems needed such testimony, and it was allowed into evidence; but factory ammunition was involved. It appears that Marty Hayes had a client who need such testimony; but again factory ammunition was involved.

It seems that handloads very seldom show up in self defense cases. Al Norris over at TFL did some research and found only 12 claimed self defense shooting in which handloads were used during a 37 year period (1970 - 2007). Only six were charged, and those wound up in convictions (four on pleas and two at trial). The other six were apparently clearly justified. I can supply links to the posts at TFL if anyone is interested.

...It seems that berg on which stands the whole "don't use handloads for Self Defense" argument appears to have melted away to one cocktail-sized ice cube of speculation concerning one judge's reasoning in one case.

Not at all. Everything doesn't hinge on Bias. It's just that Bias seems to be the only case in which a defendant tried to get into evidence his expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

The real key is the rules of evidence and a professional understanding of how those rules apply to the admissibility of expert opinion testimony.

In order to get admitted into evidence expert opinion testimony based on scientific testing, the moving party basically must establish (1) that the witness qualifies as an expert; (2) that the test is accepted as valid in the scientific community; (3) that the test reasonably duplicates the event that is the subject of the trial; and (4) that the thing tested reasonably duplicates the thing at issue in the trial. If this foundation can not be established, the offered testimony is considered irrelevant, the testimony will not be allowed into evidence and the jury will never hear it.

And as I noted in post 116, another lawyer, with experience as both a prosecutor and criminal defense lawyer, knowledgeable about the rules of evidence, and knowing how to do things in a courtroom, is confident that as a prosecutor he could keep out of evidence a defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

How big a risk is the use of handloads? There really is no way to quantify it. It's certainly very small. If you like your handloads enough that carrying them and accepting the very small risk is worth it to you, go for it.

It's not worth it to me.

 

[LiveLife]

How big a risk is the use of handloads? There really is no way to quantify it. It's certainly very small. If you like your handloads enough that carrying them and accepting the very small risk is worth it to you, go for it.

For me, I prefer to carry factory ammunition for SD/HD but felt that use of reloaded ammunition was not the "end all" for justifiable shooting. I feel better now about using "near duplicate" JHP loads if I had to use them.

Really want to thank Ken, Sam and fiddletown (among many others) for your information on this thread and curiously look forward to what Mr. Ayoob has to offer next week.

Ken, it would be helpful if you could provide a link to the newspaper article you quoted. It was my understanding from defense counsel that this information was never put in front of the jury, and I believe you may be quoting an evidentiary hearing or voir dire of evidence that was outside the hearing of the jury.

I'm out the door and won't be able to contact the lawyers in NJ for their side of it until Monday