Monday, May 25, 2015

Ten Tips On Dealing With Your Lawyer (Written After a LONG Day)

Ten Tips On Dealing With Your Lawyer (Written After a LONG Day)
1. Drop by the lawyer’s office frequently “just to check up on things”. Don’t bother to make an appointment; a lawyer’s day is dull and monotonous and he will appreciate the break in routine. Be sure to call back several times within the next hour with small details that you “just forgot to mention”. Your lawyer needs to hear your voice as often as possible to develop that warm attorney-client bond.

2. Be sure to bring all the documents pertinent to your case in a wadded-up paper bag along with your grocery list, old credit card slips, and your child’s report cards from last year. Shove things across the lawyer’s desk at random, without explanation, whenever he askes a question. You never know what seemingly irrelevant scrap of paper may be the key to your whole case.
3. Be sure to be indignant when your lawyer is not available the moment you call or drop in. You’re a busy person, and he has no right to be in court or seeing other clients when you need to let him know again how unfair your situation is and how upset you are.
If you absolutely must leave a message, be sure to leave a number you know you won’t be at later. Even better, leave your old phone number, the one that’s just been disconnected.(Note: This has actually happened to me several times.) Turn off your answering machine or just don’t bother to check it. That way, you can complain bitterly that your lawyer “never returns your phone calls.”
4. Frequently call your lawyer at home at dinnertime. His family will surely appreciate it. Besides, cold dinners are better for the digestion. And after his spouse leaves with the children because your lawyer has no time for family, your lawyer will have much more time to devote to your case.
5. When you call, don’t bother to identify yourself. Your lawyer and his staff should recognize your voice immediately, and you have every right to be upset when they don’t. The staff should be on their toes enough to immediately know the answer when you call and say only, “Hey. Them papers ready yet?”
6. If your call is taken by a receptionist or secretary, be sure to tell them your entire story, even if all they ask for is your name and phone number. Do not be afraid to start with the day you were born. Do not be deterred by the sound of other lines ringing in the background; they’ll wait while you pour out your heart to the receptionist. It will be good practice for when you have to tell the whole story over again to your lawyer.
7. When your lawyer gives you a legal opinion or suggests a settlement of your case, be sure to argue vehemently with him. Lawyers love to argue, and besides, what is his training and experience compared to what you’ve heard from your Aunt Louise?
Any bad news should be answered with accusations that the lawyer is taking money from the other side to sell you out.This will change your lawyer’s assessment of the situation to something more pleasing to you.
8. It’s very helpful to have your closest friend, your mother, and your uncle who used to sell insurance call your lawyer frequently with advice on how he should be handling your case. Your lawyer is sure to appreciate the input.
9. Your lawyer will do a better job without a lot of negative information cluttering his mind. Therefore, you should not give your lawyer any information about your case which you think might harm your chances. Besides, lawyers love surprises, especially when they happen in court. You’ll enjoy the look on your lawyer’s face when your wife’s attorney shows the judge the credit-card receipts for the trip to Bermuda you took with your girlfriend that you “forgot” to tell your lawyer about, or when the D.A. tells the judge about the seven DWI’s you had in Arizona which you “didn’t think were important” because “they was all lies anyway.”
10. Don’t bother to pay your legal fees and be sure to complain loudly about them, paid or not. Your lawyer should recognize that you are trying to correct a miscarriage of justice and be satisfied with the knowledge that he is doing good works. His staff will also accept that warm glow of satisfaction in lieu of payment, as will the banks holding the mortgage on his home and office. Lawyers make too much money anyway, a fact which they’re always glad to hear about.

Friday, January 11, 2013

The Only Reason to Blow a Breathalyser

Successfully identifying the chemical fingerprints of specific bacteria in the breath could lead to a breathalyser capable of detecting lung diseases such as tuberculosis.
A team from the University of Vermont was able to successfully identify strains of bacteria in the lungs of mice by analysing volatile organic compounds in exhaled breath.
"Traditional methods employed to diagnose bacterial infections of the lung require the collection of a sample that is then used to grow bacteria. The isolated colony of bacteria is then biochemically tested to classify it and to see how resistant it is to antibiotics," said co-author on the study Jane Hill, a microbiologist at the University of Vermont. "This whole process can take days for some of the common bacteria and even weeks for the causative agent for tuberculosis. Breath analysis would reduce the time-to-diagnosis to just minutes."
Analysing breath to detect diseases is not limited to lung infections. Recent studies have shown it may be possible to detect diseases such as colorectal cancer and multiple sclerosis by looking at what we exhale.
Moving the research on from mice to humans, Hill said, "We are now collaborating with colleagues to sample patients in order to demonstrate the strengths, as well as limitations, of breath analysis more comprehensively."

Jury Fat Bias

This month a team of Yale psychologists released a study indicating that male jurors—but not female jurors—were more likely to hand a guilty verdict to obese women than to slender women. The researchers corralled a group of 471 pretend peers of varying body sizes and described to them a case of check fraud. They also presented them with one of four images—either a large guy, a lean guy, a large woman, or a lean woman—and identified the person in the photograph as the defendant. Participants rated the pretend-defendant’s guilt on a five-point scale. No fat bias emerged when the female pretend peers evaluated the female pretend defendants or when either men or women assessed the guilt of the men. But when the male pretend peers pronounced judgment on the female pretend defendants, BMI prejudice reared up. Jesus wept. The justice system and our basic faith in male decency took another hit.
The study offers further depressing insights. Not only did the male pretend jurors prove “significantly more likely” to find the obese female defendants—rather than the slim ones—guilty, but the trim male participants were worst of all, frequently labeling the fat women “repeat offenders” with “awareness” of their crimes. And because the effect disappeared when the photographs depicted a man, the hypothesis that subjects were simply layering class-based assumptions—such as “poor people are more often overweight” and “poor people commit more crime”—on top of one another falls a bit short. (On the other hand, as one of the researchers, Dr. Natasha Schvey, explained to me over the phone, fat women are more likely to be perceived as coming from lower socioeconomic backgrounds than fat men. Somehow I don’t find that consoling.)
“What’s going on?” I asked her. Schvey suggested that stereotypes about obese people paint them as greedy, selfish, and thus prone to defrauding checks. My runner-up theories below:
Perhaps we (especially we lean men) associate heavier women (but not heavier men) with impaired impulse control, since obviously all female people (but not all male people) want desperately to be thin and are only not so when they can’t regulate their Cinnabon cravings.
Perhaps we lean men imagine that a nebulous fog of guilt surrounds all fat women, because fat—whether or not it is in fact unhealthy—is morally wrong.
Perhaps we lean men suspect that larger women, given their history of stigmatization by people like us, are generally unhappier with their lot in life and thus more likely to engage in deviant behavior.
Perhaps we lean men are especially susceptible to the proven bias jurors hold toward physically attractive defendants (one that, it’s worth noting, declines when we engage in simulated deliberation, aka use our brains to assess the facts of a case).
Or perhaps there’s another explanation! Lean men, weigh in! Why are you like this? Actually, never mind, don’t tell me. Just get yourself out of jury duty.

Sunday, November 25, 2012

Blood Alcohol Test

Blood drawn for a forensic blood test will in almost all cases be taken from the suspect via a vacutainer, which should contain two substances -sodium flouride, a preservative, and potassium oxalate, an anticoagulent. Further, they are vacuum sealed, which explains why they are called vacutainers .
Most vacutainers in use are made by Becton Dickinson. They also have an expiration date, after which the vacuum seal is no longer warrantied. BUT, very few phlebotomists, police officers, or state crime lab personnel pay any attention to the expiration date. Simply stated, nobody checks.
Becton Dickinson only checks one out of every four thousand vials for quality control. There are at least three possible defects in the state’s blood test:
1. A bad seal on the vacutainer, which is impossible to detect after the test, because it has been opened.
2. Improper amount of sodium flouride in the vial. Since vials are routinely nor refrigerated prior to their delivery to the crime lab, the proper amount of sodium flouride is critical. Either too much or too little can lead to a false high test result and
3. Improper amount of potassium oxalate. In the case of a bad seal organisms from the environment, such as candida albicans, can get in. Unless there is enough sodium flouride in the vial, the organisms that may be in your client’s blood will grow. One such organism is the ubiquitous candida albicans, which is is a yeastlike organism that is resistant to sodium floride. In the presence of glucose and warmth, it will excrete ethanol via fermentation.
Too much sodium flouride may cause “salting out”, which will also lead to a false high test result with headspace gas chromatography. This can occur even if there is no problem with the vacutainer, but the phlebotomist draws too little blood.
If there is not enough potassium oxalate, the blood can coagulate or “micro-coagulate” which is almost completly undectable. Because this changes the ratio of liquid to solid in the substance that is tested, and ethanol is water soluble, it can lead to a false high test result.
It can be virtually guaranteed that in any case involving a blood test the lab did not test for the presence of Candida Albicans, the lab did not check the vial seal, and the lab did not check the amount of sodium flouride or potassium oxalate in the tube.
If any of these occurred, you will in all likelihood have a false high blood alcohol concentration reported by the lab.

Top 20 Myths of Breath, Blood and Urine Test

The Top 20 Myths Of Breath, Blood, And Urine Tests

By Leonard R. Stamm

Myth #10: Breath Test — Dentures Cannot Cause A False High Reading Although many scientists contend that dentures do not trap alcohol that can contribute to a false high reading, a leading study on this remains controversial. Data was excluded from one female subject (#23) who had particularly poor fitting dentures and was unable to avoid swallowing during the dosing period. Patrick Harding, et. al., The Effect of Dentures and Denture Adhesives on Mouth Alcohol Retention, 37 Journal of Forensic Science 999, 1002 (July 1992). Under these stringent experimental conditions, positive apparent BrACs occurring more than 15 min after alcohol expectoration were observed in 9 of the 24 subjects. Two subjects showed trace BrACs beyond 20 min. Id. at 1006. One of the individuals in another study had a breath sample of 70ug/100mL (Å .15) and a blood sample showed .05. Dental examination of the defendant showed that he had extensive work carried out, including three bridges. A possible explanation, therefore, for these anomalous results is that the excessive breath-alcohol concentrations might be due to mouth alcohol retained in the bridges or periodontal spaces. . . . D.J.H. Trafford & H.L.J. Makin, Breath Alcohol Concentration May Not Always Reflect the Concentration of Alcohol in Blood, 18 (4) Journal of Analytical Toxicology 225, 225 (Jul.-Aug. 1994). Unless the law is concerned with convicting the many, while ignoring the few, this case demonstrates the desirability of offering all defendants the chance to have their breath-alcohol concentrations checked by analysis of blood or urine. Id. at 228.

Myth #11: Breath Test — Slope Detectors Protect Against Mouth Alcohol Influencing A Result

Our experience with the Intoxilyzer 5000 has shown that its residual mouth alcohol flagging program (that is, the slope detector) is not entirely reliable under the extreme experimental conditions employed in the present study. In this experiment we were able to obtain apparent BrACs as high as 0.18 g/210 L in spite of this feature. The slope detector was never intended to be a substitute for residual mouth alcohol detection and prevention protocols such as a pretest alcohol deprivation period and requiring agreement within 0.02 g/210 L for successive BrACs taken 2 to 10 min apart. Patrick Harding, et. al., The Effect of Dentures and Denture Adhesives on Mouth Alcohol Retention, 37 Journal of Forensic Science 999, 1006 (July 1992). Translation: according to this author, slope detectors, designed to detect mouth alcohol, don’t work. Myth #12: Breath Test — Hematocrit Is Irrelevant To The Result So you ask, what is hematocrit? The hematocrit represents the fraction of whole blood composed of red cells and is correlated with the aqueous content of blood. The higher the hematocrit, the lower the concentration of water in blood, and vice versa. The average hematocrit for normal, healthy males is 47%, with a range of 40-54%; for females the average is 42% and the range is 36-47%. Since ethanol dissolves almost entirely in the aqueous component of blood, two individuals with identical actual BAC’s but with different hematocrits would be expected to produce different Breathalyzer results. The person with the higher hematocrit, and therefore lower blood-water content, would necessarily be characterized by a higher concentration of ethanol in the aqueous component of his/her blood and consequently, by a higher Breathalyzer reading. Given that the Breathalyzer uses only one partition ratio, Smith and Payne et al. have predicted that the normal variation in hematocrit can produce errors in breath test results in the 10 to 14% range. Dominick A. Labianca, The Chemical Basis of the Breathalyzer, 67 (3) Journal of Chemical Education 259, 261 (March 1990).

Myth #13: Breath Test — Breath Tests Are Specific For Ethanol Infra-red A number of studies found substances that can interfere with an infra-red testing device that were not picked up by the instrument. We conclude that the Intoxilyzer Model 4011 AS may exhibit significant interference when used for subjects previously exposed to lacquer or lacquer thinner fumes. William Giguiere, David Lewis, Randall C. Baselt, Randall Chang, Lacquer fumes and the Intoxilyzer, 12 Journal of Analytical Toxicology 168, 168 (May-June 1988). Toluene alone can account for somewhere between 0.048 and 0.058 g/210L of the ostensible ethanol reading without causing the interference mechanism to trigger (Table 2), and this value would be below most legal threshold. However, if the signal resulting from toluene is augmented by the presence of genuine ethanol, the readout could exceed legal limits without activating the interference mechanism. Jonathan P. Caldwell & Nick D. Kim, The Response of the Intoxilyzer 5000 to Five Potential Interfering Substances, 42 (6) Journal of Forensic Sciences 1080, 1084 (1997). The results of this study clearly indicate that all five substances tested for potential interference with the Intoxilyzer 5000 will interfere to some degree. Even so, the performance of this instrument is significantly better than that of the earlier model Intoxilyzer 4011AS-A. Four of the five compounds (toluene, the two xylenes, and isopropanol) are registered by this version of the Intoxilyzer as interferences by the instrument at given points in their concentration and one (methanol) is not. From the point of view of where this interference mechanism is triggered, the compounds can be ranked in terms of their probability (if present) of causing an undetected false-positive reading for ethanol in this order: methanol > toluene > the xylene > isopropanol. Id. at 1086. Giguiere, Lewis, and Baselt examined a 52-year-old male cabinet maker with a 20-year history of work-related exposure to lacquers and paint thinners. At 3:36 p.m he received a test reading of 0.369 percent digital, 0.312 percent printout (w/v) on an Intoxilyzer 5000, with the printout indicating “interferent subtracted.” At 3:48 p.m., 0.273 percent digital, 0.245 percent on the printout, also indicating “interferent subtracted.” A blood sample drawn at 3:40 p.m. indicated ethanol 0.0 percent, acetone 0.025 percent (w/v), and toluene 11 mg/L. Although the highest apparent blood alcohol concentration (0.31 % w/v) given by the Intoxilyzer for this subject is 282 times that of the actual blood toluene concentration, because toluene exhibits a blood:breath ratio that is 116 to 300 times less than that of alcohol, and because it demonstrates significant infrared absorption at the 3.50 Å 0.06 micron wavelength used by the Intoxilyzer 5000, we consider it likely that toluene caused the instrumental interference observed in this case. Mary Anne Edwards, William Giguiere, David Lewis & Randall C. Baselt, Intoxilyzer Interference by Solvents, 10 (3) Journal of Analytical Toxicology 125, 125 (May-June 1986). Diethyl ether vapor may substantially interfere with breath alcohol analysis by instruments based on infrared absorption at 9.5 um. C. M. Bell, S. J. Gutowski, Diethyl Ether Interference with Infrared Breath Analysis, 16 Journal of Analytical Toxicology 166, 166 (1992) (Draeger Alcotest 7110). . . . IR analysis for breath-alcohol at 9.5 um . . . would not provide a foolproof solution. Common volatile organic compounds other than ethanol, which occur for example, in solvents, perfumes, and food, also contain carbon-oxygen functionality and exhibit IR absorption bands that overlap this wavelength. Included among these are the following: other alcohols, esters, . . .and ethers . . . Dominick A. Labianca, How Specific for Ethanol is Breath-Alcohol Analysis Based on Absorption of IR Radiation at 9.5 um?, 16 Journal of Analytical Toxicology 404, 405 (Nov.-Dec. 1992). Fuel Cell The Alcolmeter device makes use of an electrochemical detector for the determination of ethanol. The alcohol present in a measured volume of breath is oxidized at a platinum electrode surface to generate an electric potential which can be registered. The detector is not specific for ethanol. It gives a response to methanol, n-propanol, isopropanol, and acetaldehyde but is insensitive to acetone. A.W. Jones, Evaluation of Breath-Alcohol Instruments III. Controlled Field Trial with Alcolmeter Pocket Model, 28 Forensic Science International 147, 148 (1985). This is consistent with a study published on the Intoximeter Web site. Myth #14: Breath Test —Truncating To Two Digits Favors The Defendant In many, if not most jurisdictions, two readings are taken and the lowest three-digit reading is truncated, leaving two digits as the reported reading. The government argues this favors the defendant and removes uncertainty in the test reading. Dr. Dubowski argues the third digit is irrelevant because the instrument is not capable of accurately reporting to three digits. Figure 8 illustrates the uniform distribution of the third digits of field BrACs in g/210L. Gullberg also reported an essentially uniform distribution of third digits in field forensic breath alcohol testing. In truncating to two digits from three digits, the omitted third digits follow a uniform distribution. Third digits are discrete random variables with an equal probability of being 0, 1_.9. An unknown third digit is as likely to be 9 as 0. Truncating BrAC measurements in g/210L to two decimal places does not introduce bias other than the intended deletion of the third digit. Kurt M. Dubowski & Natalie A. Essary, Measurement of Low Breath-Alcohol Concentrations: Laboratory Studies and Field Experience, 23 Journal of Analytical Toxicology 386, 394 (October 1999), citing, R.G. Gullberg, Distribution of the Third Digit in Breath Alcohol Analysis, 36 Journal of Forensic Science 976 (1991). Dr. Jones takes a different approach, noting that truncating unevenly favors those who have a higher third digit. In some jurisdictions rules and regulations for evidential breath-alcohol testing mandate that the lowest of the two independent breath-tests is used for prosecution. Also the third decimal is frequently truncated so that 0.109 g/210 L becomes 0.10 g/210 L. However, these safeguards do not help the person who by chance might have the same BrAC result in the two independent breath-tests or when the third decimal might have been zero. A.W. Jones, Medicolegal Alcohol Determinations — Blood — or Breath-Alcohol Concentration?, 12 Forensic Science Review 23, 42 (Jan. 2000).

Myth #15: The Alcohol Tested Is Alcohol The Defendant Drank Alcohol Swab Is Okay

A recognized source of physical contamination is the use of alcohol containing swabs to disinfect the area of specimen collection in the living patient. This method of specimen contamination is well documented in the literature (Heise, 1959; Taberner, 1989; Goldfinger and Schaber, 1982) with appropriate admonitions against using alcohol swabs for this purpose. William H. Anderson, Collection and Storage of Specimens for Alcohol Analysis, Medical-Legal Aspects of Alcohol 237, 239 (James C. Garriott ed., 4th ed. 2003).Endogenous Alcohol If for some reason large quantities of ethanol are synthesized in the gastro-intestinal tract and overwhelm the capacity of the alcohol-metabolizing enzymes in the liver, then much higher concentrations of EE should appear in the peripheral venous blood. This is exactly what was described in a group of Japanese subjects who were suffering from various disorders of the gut. Some had previously complained of experiencing feelings of drunkenness even without consumption of alcohol. This condition seemed to appear after the subjects had eaten a carbohydrate-rich meal, such as rice. This study from Japan was difficult to fault because ethanol was identified in the blood, urine, and breath with the aid of a reliable gas chromatographic method for quantitative analysis. Alan W. Jones & Barry K. Logan, DUI Defenses, Drug Abuse Handbook 1006, 1016 (Steven B. Karch ed., 1988). The term used to describe this abnormal production of EE was ‘autobrewery syndrome’ and to our knowledge this has only been observed in Japanese subjects. It is widely known that the activity of alcohol metabolizing enzymes, especially aldehyde dehydrogenase, is different in Oriental populations compared with Caucasians, which might render Japanese and other Asians less able to clear ethanol from the portal blood. Other requirements before ‘autobrewery syndrome’ should be seriously considered as contributing to a person’s BAC include genetic predisposition (Oriental origin), a past history of gastrointestinal ailments, documented medical treatment for the problem, low tolerance to alcohol, and reports of fatigue and drunkenness after eating meals. Id. at 106.Candida Albicans In this experiment Proteus vulgaris and a-streptocci produced relatively little ethanol, and this production was eliminated or reduced to undetetectable levels by flouride. However, Candida albicans produced a much greater amount of ethanol, and this production was not at all inhibited by flouride. Philip Blume & David J. Lakatua The Effect of Microbial Contamination of the Blood Sample on the Determination of Ethanol Levels in Serum, 60 Am. J. Clin. Path. 700, 701 (Nov. 1973). Glendening and Waugh cite studies indicating the usefulness of fluoride in preserving specimens of blood from which ethanol determinations are to be made. Blackmore and Pleuckhalm and Ballard, reviewing the literature and presenting the result of their own extensive studies, point out the effect of microbial contamination on the production of ethanol in specimens of blood. They both suggest the use of sodium fluoride at a concentration of 1% for the preservation of blood specimens. While this is a worthwhile precaution, it appears that care should be taken to assure the sterility of the specimens nonetheless. Id.; but see, A.W. Jones, L. Hylen, E. Svensson & A. Helander, Storage of Specimens at +4ºC or Addition of Sodium Fluoride (1%) Prevents Formation of Ethanol in Urine Inoculated with Candida Albicans, 23 Journal of Analytical Toxicology 333 (1999). Myth #16: Blood Test —Enzyme Tests Are Reliable Enough To Quantify Alcohol There are important differences between gas chromatographic and enzymatic procedures, which have an impact on this case. Gas chromatography (GC) is the preferred method because of its higher selectivity for ethanol, which allows positive identification by comparison of retention time with known standards. Mass spectral analysis would definitely prove the presence of ethanol. Enzymatic assays are less specific than GC for the analysis of ethanol. For example, both n-propanol and isopropanol are good substrates for ADH. Certain metabolic disturbances such as lactic acidosis create problems when automated enzymatic assays are used, which may lead to false positive test results. B.K. Logan & A.W. Jones, Endogenous Ethanol Production in a Child with Short Gut Syndrome, 36 (3) Journal of Pediatric Gastroenterology 419, 419-20 (March 2003). Indeed, the risk of hyperlactacidemia in short-gut syndrome was mentioned by Dahshan and Donovan, who found no measurable d-lactate in their patient. They failed, however, to report l-lactate, pyruvate, acetaldehyde, or other endogenous metabolites, all which measurements are important to the assurance that EE is truly elevated in their patient. Id. at 420. In the forensic laboratory, biochemical methods are not usually used for determining blood alcohol due to their lack of total specificity. Isopropyl alcohol and butyl alcohol interfere in the reaction. For forensic purposes, enzyme methods must be confirmed by an alternate technique. (Garriott, 1983). Richard F. Shaw, Methods for Fluid Analysis, Medical-Legal Aspects of Alcohol 213, 217 (James C. Garriott ed., 4th ed. 2003). The development of enzymatic assays based on the catalysis of ethanol to acetaldehyde and on the correlation of the rate of conversion of coenzyme NAD to NADH with ethanol concentration, as well as the assays’ availability in kit form for use on automated instruments, has simplified the task of ethanol determination. These assays, as exemplified by the Syva, Abbott, and Roche enzymatic assays are rapid, sensitive, and cost-effective. However, high serum-lactate and LDH concentrations appear to interfere in some of these assays, resulting in false-positive ethanol values. Jeffrey S. Nine, Michael Moraca, Mohamed A. Virji & Kalipatnapu N. Rao, Serum-ethanol Determination: Comparison of Lactate and Lactate Dehydrogenase Interference in Three Enzymatic Assays, 19(3) Journal Analytical Toxicology 192, 194 (May-Jun 1995). The authors’ conclusion is misleading to law enforcement agencies, attorneys, and even some pathologists because the average individual found driving under the influence or even an intoxicated person with traumatic injury does not match the pathology or the LDH and lactate concentrations described in this article. We would like to caution the forensic community that such a conclusion does not apply to situations in which an injured driver has received lactated Ringer’s solution intravenously prior to having his blood taken for a blood alcohol test. Charles Winek & Wagdy Wahba, A Response to “Serum-ethanol Determination: Comparison of Lactate and Lactate Dehydrogenase Interference in Three Enzymatic Assays,” 20 Journal Analytical Toxicology 211, 211 (May-Jun 1996). Our study showed the effect that abnormally high concentrations of lactate dehydrogenase (LDH) and lactate could have on one specific analytical method, which was then in use for the determination of serum/plasma ethanol concentrations. . . . The conclusions drawn in our paper applied to the cases in the report. The mechanism of interference in the assay was investigated in the laboratory to obtain an understanding of the biochemical basis for the falsely elevated ethanol concentrations at which the effect was observed; we suggested possible approaches to minimize or eliminate the interference. . . .The effect on Ringer’s lactate was not investigated. Jeffrey S. Nine, Michael Moraca, Mohamed A. Virji & Kalipatnapu N. Rao, The Authors Reply to, A Response to “Serum-ethanol Determination: Comparison of Lactate and Lactate Dehydrogenase Interference in Three Enzymatic Assays,” 20 Journal of Analytical Toxicology 211, 211 (May-June 1996). Myth #17: A Urine Test Can Reliably Measure Alcohol There is massive documentation that the blood alcohol concentration cannot be established sufficiently reliably for forensic purposes from the alcohol concentration of a pooled bladder urine specimen because of the extensive variability of the blood:urine ratio of alcohol. Kurt M. Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 J. Stud. Alcohol Suppl. 98, 102 (1985). The overall average urine ethanol to blood ethanol ratio was 1.57:1 with a range of 0.07 to 21.0:1. The actual value of the ratio is unimportant. The wide range however, indicates the high probability of a large error being introduced into the calculation of a blood ethanol value from a urine ethanol concentration when using an average value for the ratio of urine to blood ethanol concentration. . . . Based on the data presented, the unreliability of using a urine ethanol concentration to predict a blood ethanol concentration cannot be questioned. Charles L. Winek, Kathy L. Murphy, & Tracy A. Winek, The Unreliability of Using a Urine Ethanol Concentration to Predict a Blood Ethanol Concentration, 25 Forensic Science International 277, 280 (1984). Myth #18: Extrapolation Backwards Is Accepted In The Scientific Community Among the major reasons for the infeasibility of retrograde extrapolation, three stand out: (1) lack of knowledge, usually, about the timing of the alcohol concentration peak and absorption-post-absorption status; (2) ignorance about the mathematical characteristics (e.g. linear, pseudolinear, exponential) and the mean rate of change of the individual’s blood or breath elimination curve; and (3) unpredictable irregularities of the curve, especially short term fluctuations from the best-fit trend line of the blood or breath alcohol curve. Kurt M. Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 J. Stud. Alcohol Suppl. 98, 103 (1985). Extrapolation of a later alcohol test result to the time of the alleged offense is always of uncertain validity and therefore forensically unacceptable. Id. at 106.
Myth #19: The Test Result Is Traceable To NIST

When simulators are used for control tests . . . at least two variables controlling the control target value need to be checked and properly validated: the ethanol concentration of the aqueous simulator solution and the simulator temperature at which the alcohol equilibration occurs. The former is a laboratory task in which the ethanol standards used should be traceable to National Standards and Technology (NIST) SRM 1828. The latter must necessarily be performed at the test site at the time of the control test; it should be done by thermometry using a device with calibration traceable to a NIST certified thermometer, such as NIST SRM 934. Kurt M. Dubowski, Quality Assurance in Breath-Alcohol Analysis, 18 Journal of Analytical Toxicology 306, 310 (Oct. 1994). It is advisable to check all prepared standards versus a certified reference standard available from the National Institute of Standards & Technology (NIST SRM 1828) or College of American Pathologists (CAP Certified Alcohol Standard Solutions). . . Each new set of standards should be verified against the standards in current use as well as the certified reference material. Barbara J. Basteyns & Graham R. Jones, Quality Assurance, Medicolegal Aspects of Alcohol 229, 232 (James C. Garriott, 4th ed. 2003). Merely having an instrument or artifact calibrated at NIST is not enough to make the measurement result traceable to reference standards developed and maintained by NIST. To establish traceability to such reference standards there must be an unbroken chain of comparison and each provided measurement must be accompanied by a statement of uncertainty. The measurement system by which values are transferred must be clearly understood and under control. The dates and details of each link in the chain must also be provided. State v. Jagla, slip. op. at 6-7 (King County District Court, Washington) (June 17, 2003)(emphasis in original), quoting from, http: // /233/calibrations/Policies/policy.htm. We find that in order to be admissible under WAC 448_13_040, _035, and RCW 46.61.502, the thermometer in the breath test must be tested against a thermometer traceable to standards maintained by NIST. To be traceable, the uncertainties must be measured and recorded at each level. Given the posture of the cases before us, we do not reach whether substantial compliance would be sufficient. As the State has not established that the uncertainties had been measured and recorded, it has not met its foundational burden, and therefore the trial courts did not err in excluding the tests. City of Seattle v. Clark-Munoz, 93 P.2d 141, 146 (Wa. 2004) (en banc).

Myth #20: The Test Result Is Based On Science — Not Secrets
11.9 Retention of Records Records should be retained as long as practical, but for at least 5 years. Records should include a copy of the report, request and custody forms, work sheets, laboratory data, quality control and proficiency testing records. SOFT/AAFS Laboratory Guidelines (2002). Instrument output, laboratory worksheets and reports, internal and external proficiency testing results should be retained for as long as the results of the analysis may be required in court, which could be for many years. Barbara J. Basteyns & Graham R. Jones, Quality Assurance, Medical-Legal Aspects of Alcohol 229, 233-34 (James C. Garriott, 4th ed. 2003). There are a number of articles written and guidelines published about the need to follow minimum standards of quality control and assurance in scientific testing in order to provide minimum levels of assurance about the reliability and accuracy of test results. Frederic Whitehurst, a former expert in explosives at the FBI laboratory, and lawyer, who achieved prominence in the late 1990s for his disclosures of incompetence and fraud in that laboratory, has written an article detailing the minimum requirements for quality control and quality assurance in a scientific laboratory. He lists ten requirements for types of records that should be kept by the laboratory, and should be requested by and provided to defense counsel in a criminal case. F. Whitehurst, Forensic Crime Labs: Scrutinizing Results, Audits & Accreditation, The Champion 6 (April & May 2004). In the field of toxicology, Dr. Dubowski has written an article titled, Quality Assurance in Breath Alcohol Testing, 18 J. Analytical Tox., 306 (1994). The abstract of his article states: Evidential breath-alcohol testing requires an adequate quality assurance (QA) program to safeguard the testing process and validate its results. A comprehensive QA program covers (a) test subject preparation and participation; (b) the analysis process; (c) test result reporting and records; (d) proficiency testing, inspections, and evaluations; and (e) facilities and personnel aspects. Particularly important are the following necessary scientific safeguards as components of quality control: (a) a pretest deprivation-observation period of at least 15 minutes; (b) blank tests immediately preceding each breath-collection step; (c) analysis of at least duplicate breath specimens; and (d) a control test accompanying every subject test. Id. at 306. See also, Cole v. State, 378 Md. 42, 835 A.2d 600 (2003)(defendant was entitled to discovery of testing laboratory’s standard operating procedures, including quality assurance manual, calibration record for gas chromatograph/mass spectrometer (GCMS) used by chemist to test the substance, and discovery of the chemist’s own proficiency testing records). Has anyone from the defense side yet seen and evaluated the algorithms and logarithms used in the breath test computer programs, the software, the computer programs, or the testing done on the equipment? History has shown that defendants can never take for granted what government scientists claim is good science. Conclusion As defense lawyers, it is our duty to challenge government science, especially when there are other scientists in the field who criticize the status quo. In the interest of protecting the public from drunk drivers, have legislatures, too, readily blinded themselves to shoddy science? Have courts been able to convict the innocent by failing to properly account for uncertainty in science? It seems certain. Many scientists do recognize these problems. While the percentage of overestimates and underestimates of actual BAC can give some indication of the reliability of breath analysis, the most important piece of information for legal purposes is the amount of error or uncertainty expected in an individual’s BAC result. In a legal situation, the question is whether or not a particular defendant had a BAC in excess of some limit, not what percentage of people in general have actual BAC overestimated or underestimated. G. Simpson, Incorrect Overestimates of Blood Alcohol Concentration from Breath Test Results, 14 (4) Journal of Analytical Toxicology 263, 264 (1990). [A] more acceptable way would be to make a subtraction from the mean analytical result with this deduction being derived from statistical considerations of variability as a function of alcohol concentration . . . . Note that here a 99.9% confidence limit is appropriate in keeping with a ‘beyond a reasonable doubt’ standard in criminal cases. Alan W. Jones, Medicolegal Alcohol Determinations — Blood — or Breath-Alcohol Concentration?, 12 Forensic Science Review 23, 42 (Jan. 2000); see also, Schlup v. Delo, 513 U.S. 298, 325 (1995). Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). See also T. Starkie, Evidence 756 (1824) (‘The maxim of the law is ... that it is better that ninety-nine ... offenders should escape, than that one innocent man should be condemned’). These concepts seem to get lost in court where test results are deemed relevant under a preponderance standard and then converted to proof beyond a reasonable doubt by per se laws. It is critical that judges and juries be educated as to this slight of hand practiced by the courts. When facing expert testimony expressed in measures of uncertainty defined by standard deviations from a mean or by a probability, we have to question whether the scientific level of uncertainty expressed by the expert and accepted by the court comports with the legal level of certainty that is required to satisfy due process. It is our duty to educate legislators, judges, juries, prosecutors, police, other defense lawyers, our clients, and the public, so that in the end courts will not convict based on questionable science. n

Jury Duty

The Teardrop Tattoo Will Be His Undoing

I'm reporting for my first jury duty summons at 500 Indiana Avenue. Though I have lived and worked in Washington, D.C. for over a decade, I have never been called to court for my civic duty to "serve."
Black men, young and old, line the halls of the courthouse. Some are lawyers and plaintiffs, but most of them are prey to an intricate web of systems—poverty, drugs, laws, codes, slavery, a deliberate erasure of histories and forced migrations, dehumanization, colonialism, patriarchy—all meant to entrap generations upon generations from birth. This is what I tell myself as I scan the inscape of the place. This is what hip-hop taught me.
There are Black teenagers frantically thumbing through torn envelopes to find the proper permits, documents, and proofs for their weapons. There are Black women swearing they haven't ever darkened that woman's doorstep, their own public defenders discrediting them in whispers.
In a mad dash out the main entrance and back down Indiana Avenue, a Black man set to appear in court slams into three strangers in front of me and grazes my arm. Minutes later, he returns with humble apologies for the guards on duty.
"My bad," he says to the officers. "I thought you was just tryna be nasty with me." Like most of the Black men funneling through security today, this guy has been here before.
With an indifferent wave of hand, the guard signals him through.
"You do realize that the metal detector didn't even go off, don't you?" huffs the white woman in front of me, incredulous at the brief inconvenience of being patted down.
My eye twitches.
During the second of what will be my sixth or seventh lining up of the day, a chorus of I-hope-they-don't-pick-me abounds in loud timbres and in whispers.
The Black woman in front of me with glassy eyes speaks in my direction without looking at me. "I hope they send me home," she sighs. "I just got off work at 5:00 a.m. If they pick me, I'll just have to go right back to work after this."
"I feel you," I say. "That's terrible."
When my jury's panel is finally called, about four hours after my sleepy arrival, I try not to nod off when the loud, artificial ocean-sounding "husher" is switched on. The husher is a constant, static noise that permeates the courtroom so no one can hear what is being said at the bench. The judge has just given a shockingly passionate speech about jury service as both duty and privilege.
I wonder what he would think if he knew that in response to the murder of Trayvon Marton, I'd written these lines: "When I go outside/ I don't ever/ have to worry someone/ will one day march in an/ impotent mob wearing/ a t-shirt with my name on it."
Eventually, I stand in line with my juror's survey crumpled in half, waiting to be called forward to the bench. I am reading a book called Letters from Burma by Aung San Suu Kyi, a Nobel Peace Prize winner and champion of the democracy movement in my mother's home country. Suu Kyi was held under house arrest for thirteen years until her release in 2010, confined during both the death of her husband in the U.K. (he was not allowed to re-enter Burma and Suu Kyi would have risked being banned from the country permanently had she chosen to go to his bedside) and her sons' formative adolescent years. Time and again, this woman bravely put her country's needs before her family.
As I wait for the judge to beckon me, I make eye contact with the defendant, another young Black male. He is dressed in an ironed button down shirt, sleek wire frame glasses, and slacks. There's a small but noticeable teardrop inked permanently on his skin, just below his right eye.
The teardrop tattoo will be his undoing.
The system will not forgive him that. This is just one of the things I want to tell him. I want to hold both his hands in mine and kneel in front of him. Instead, I make a mistake and tell the judge the truth.
"You've marked here that you would not count the testimony of a police officer to be the same as any other person," the judge begins, following up with a seemingly rhetorical question, "Is that correct?"
"Yes," I reply.
"Why is that?"
"Well, I do not believe that police officers act lawfully or appropriately the majority of the time. In my personal experience, they are not truthful, especially in a court of law." I do not mention Vincent Chin or Fong Lee. There is no space on the questionnaire for that.
The judge is taken aback by my response, but composes himself and un-scrunches his brow to continue his line of questioning.
"So you're saying if a police officer came in here to testify, you would automatically assume he or she was lying?"
"No," I say, pausing, then pronouncing each word assuredly as I attempt to clarify my statement, "I would not necessarily assume that. But I do have a strong bias."
Now, I can see the judge wants to know everything, but not for the purpose of this case. If he could, I think he would put on the husher and take me into a low-ceilinged, fluorescently lit room where judges gather. He would ask more questions, "off the record". He would want to find out why my eyes slant under these black mascara strokes. He would probe me about my experiences with the police, which have been-as I checked the appropriate box in the juror's questionnaire—exceptionally negative.
The judge does not know Asian American women like me. He smirks a bit and concedes, "I am going to excuse you."
I am free to go.
I turn and march directly out the front courthouse entrance, splaying open the glass doors with one forceful push, past smokers clustered in duets, trios and quartets, in search of coffee and food. I'm satisfied and emboldened, but I haven't officially been "released" for the day.
I sit in the juror's lounge again. 30 minutes later, they finally let those of us remaining go with a simple announcement: "Turn your badges into the wire basket on your way out. Thank you for serving."
And it's over.
The first thing I do when I walk out of 500 Indiana is text my partner. He is an artist, a loving father, and a Black man.
I text him, "I told them F the police and they let me leave."
He texts me back immediately: "What? You can't fight the system if you aren't picked. Jury nullification!!!"
"Oh shit," I type back. "I got it wrong."
In a rush to honestly express my profound skepticism about the United States "justice system" and the armed officers upholding these laws, I'd completely neglected the possibility of jury nullification. Criminal law scholar Paul Butler describes jury nullification as "a constitutional doctrine that allows juries to acquit defendants who are technically guilty, but who don't deserve punishment. When a jury disregards the evidence and acquits an otherwise guilty defendant, it has practiced jury nullification. The jury is saying that the law is unfair, either generally or in this particular case."
While my partner (and so many men like him) has had a lifetime of sink-or-swim interactions with the violent waters of the Prison Industrial Complex, I have only recently been affected in personal ways. I cannot say that I would have issued a "not guilty" verdict—had I been selected—if I felt the man with the teardrop tattoo had, beyond the shadow of a doubt, committed murder.
My partner said that he was disappointed in my actions and reminded me this marked an instance of how I "show my whiteness." My mother is Burmese and my father is a white American. My own whiteness, he argued, allowed me the privilege not to be convinced of the need for jury nullification when it counted. He assumed I had not carefully considered the man before me with deep empathy. He chastised me for not recognizing that this man might serve a life sentence because of my inability to "toughen up," to overcome my own pain, anxiety and fears in order to potentially spare the defendant. He questioned my commitment to eliminating prisons, a topic we've stayed up so many late nights discussing. In my partner's eyes, the man's innocence or guilt was irrelevant. He, like Paul Butler, understands and believes that jury nullification has the power to "help make the United States more safe and free," and that "strategic jury nullification can safely reduce mass incarceration."
Petty theft and other nonviolent crimes, that's one thing, I say to myself, but what about the murder of another Black man? Would I be capable of nullifying a murder charge?
Should I be?
What do I do with the part of me that has absolutely no tolerance for sexual violence, rape, or other incursions into a human being's body? Should the woman in me that fears sexual assault above all else retreat to support the race-conscious potential of jury nullification to reduce incarceration rates?
I decide right then that if I could report again for jury duty, I'd trade my liberating fuck-the-police moment for a meaningful act in true service to my community. I'm still not convinced I could cast a not guilty verdict for someone I thought took another life. But, I do know that my country, my peers needed me in that room deliberating, not texting my lover about a fleeting personal victory.
I want to believe the strength is within me to unlearn all the charmed Paradise Valley teachings of my youth, but I'm not sure. I want to be the kind of Burmese American woman who is savvy and courageous enough to choose her country over her family. Until that day, I can only hope the United States of America radically transforms into a country worth ethically serving and that deliberation rooms across our country are occupied with thoughtful Americans who know that our select, thuggish, unethical enforcement of laws should be on trial just as much as the lines of "guilty" Black men lining the courtrooms of our cities.
It's all too late. Ten months after my failed opportunity at jury nullification, I can still see that young Black man, the ironic permanence of a single tear branded on his skin. The static crackle of the husher confines us both to that painful memory. The truth, though, is that one of us will always be free to go.
I got it wrong.

Wednesday, February 29, 2012

Dershowitz on the "The Justice Game"

Dershowitz on "The Justice Game"In his 1982 book, “The Best Defense," law professor and litigator Alan Dershowitz writes about the criminal justice system and sets out 13 rules of “The Justice Game.” Some may find them a bit cynical. In fact, many may find them a bit cynical. Here they are: