Method to analyze gun evidence not ‘scientifically valid,’ Oregon court says in major ruling

A recent Oregon Court of Appeals

ruling

blew a gaping hole in the state police crime lab’s long-standing technique of matching a suspect’s gun to shell casings left behind at a crime scene.

The court found that a forensic examiner relied on “subjective judgment” based on training and experience – not objective scientific methodology – when linking shell casings in a

2018 Portland shooting

to a Taurus handgun.

The decision threatens an untold number of similar prosecutions across that state that have relied on ballistic comparisons. It already has left prosecutors scrambling to adjust trial tactics while defense attorneys hope the ruling will stand so judges keep what they call

“junk science”

out of the courtroom.

“If it’s upheld, it’s a pretty significant blow to that area of forensic science that police agencies nationwide have been repeatedly using for decades,” said John Robb, the attorney for Odell Tony Adams.

The prosecution of Adams, accused of spraying bullets outside the Speakeasy Lounge, led to the decision.

The Oregon Department of Justice plans to petition the state Supreme Court to hear its appeal of the ruling, agency spokesperson Jenny Hansson said Tuesday.

“In the meantime, we will work with law enforcement and prosecutors to determine what they can do with existing cases,” she said.

The finding last month undermines what’s known as firearms toolmark analysis. It rests on the premise that manufacturing tools leave unique marks inside every gun and that the toolmarks create microscopic features on bullets and their casings when fired. So, forensic scientists set out to match the unique markings.

They typically compare shell casings recovered at crime scenes to those test-fired from a gun seized from a suspect, at a crime scene or during a search warrant.

They look at the markings side by side under a microscope to check for similarities.

The analyses have been used as evidence in everything from homicides to non-injury shootings across the state for decades, though the process has come under fire over the last 15 years from the National Academy of Sciences as inexact and the President’s Council of Advisors on Science and Technology as unreliable.

The Oregon State Police

Forensic Services Division

performs gun analysis for all law enforcement agencies in Oregon. Its firearms comparison team includes four trained forensic scientists and two scientists in training, according to agency spokesperson Capt. Kyle Kennedy.

State police are still digesting the ruling.

“The Forensic Services Division employs highly trained forensic scientists, who utilize internationally recognized methodology to thoroughly and properly analyze evidence,” Kennedy said in a statement. “Our division is continually looking for ways to better serve the citizens of Oregon and our response to this ruling will continue in that same spirit.”

Ryan Scott, a criminal defense lawyer who frequently argues appeals, said he expects judges to be much more restrictive of ballistics evidence and even completely exclude such testimony going forward until the state Supreme Court weighs in.

“This will be in flux,” Scott said. “The question won’t be final for another couple of years, at least.”

CASE IN QUESTION

A Multnomah County Circuit Court jury found Adams guilty in 2021 of two counts of unlawful use of a gun and two counts of second-degree criminal mischief but acquitted him of attempted murder and assault charges.

The allegations arose from the shooting at the nightclub three years earlier when police picked up 10 .40-caliber bullet casings from the ground outside and documented bullet holes in two cars parked in the lot.

Investigators later got a warrant to search a home where they suspected Adams lived and found a .40-caliber Taurus hidden in a crawlspace at the top of a flight of stairs.

During the trial, Adams’ lawyer urged Judge Jerry B. Hodson to block the jury from hearing any toolmark analysis testimony, but Hodson let it in.

Two state police forensic examiners — Katherine Todd and Dan Alessio — concluded that the casings recovered outside the club came from the seized Taurus.

Todd and Alessio testified that they used the Association of Firearm and Toolmark Examination’s analysis method to make the comparison.

But according to the Appeals Court opinion, neither Todd nor Alessio could identify any “objective criteria” for measuring the similarity between the crime scene casings and the casings test-fired from the Taurus.

The Appeals Court cited U.S. and Oregon Supreme Court rulings that set out how judges should determine if evidence to be introduced at trial meets a standard of scientific validity. Those factors include reliability, accurate measurements, the trustworthiness of conclusions and an ability to produce consistent results when replicated.

In the Adams case, the appellate court found the state failed the evidentiary tests, relying instead on individual training and experience, not uniform scientific standards.

“Multiple practitioners may analyze the same items and reach the same result, but each practitioner reaches that result based on application of their own subjective and unarticulated standards, not application of the same standards,” the May 29 ruling said.

The analysis, the opinion said, was “cloaked with the ‘aurora of reliability’ of science even though it is not actually derived through science.”

Further, the court found that the state forensic examiners’ conclusions couldn’t be replicated. One examiner checking another’s work could not apply the “same standard” in reaching the same conclusion and could not describe “any quantifiable standard,” the opinion noted.

The court threw out Adams’ state conviction and sent the case back to the trial court.

Adams was previously tried on a federal charge in 2020 in the same shooting and a judge suppressed the state forensic examiners’ conclusions linking the crime scene casings to the Taurus. A federal jury then acquitted Adams of being a felon in possession of a gun.

CHALLENGES TO ANALYSIS

Courts have long presumed the pattern-matching method to be reliable and have admitted opinion testimony from firearms examiners “almost without question,” said Janis Puracal, the executive director of the Portland-based

Forensic Justice Project.

The organization helps defense lawyers understand and challenge misleading or faulty forensic evidence. Puracal filed a friend of the court brief in the Adams appeal.

But that presumption has been starting to weaken, she said.

“Recently, more and more courts have found the method scientifically invalid after conducting the proper analysis under the preponderance of the evidence standard,” Puracal said.

In 2009, the National Academy of Sciences noted a “lack of a precisely defined process” and said there was no proof behind the assumption that all firearm markings are inherently unique.

A second report published the following year by a different panel of experts at the academy said it was unclear how many marks must be matched before identification is complete and found “no statistical foundation for estimation of error rates.”

A third report – published in 2016 by the President’s Council of Advisors on Science and Technology, a group of the nation’s leading scientists and engineers – noted only one study had been done to measure the method’s reliability.

The state argued that toolmark identification is settled science.

It “is not novel — it has been used in this state for more than a century, and the specific method applied in this case has been in use for nearly 30 years,” Assistant Attorney General Peenesh Shah said in a legal brief to the Oregon Appeals Court

Additionally, Shah said defense attorneys can challenge their findings under cross-examination when they testify.

“I think a court would be usurping the jury’s function by deciding whether these conclusions are valid when there’s not really any reasonable scientific dispute that there’s something meaningful going on here,” he argued before the appellate court.

IMPACT IN COURT

The Adams decision is already shaking up cases in Multnomah County Circuit Court.

“We all know that jurors view evidence that has the patina of science as very persuasive,” defense attorney Rian Peck said. “It’s incredibly important for trial courts to make sure that what the state is calling science is actually scientific.”

In a June murder trial, prosecutor Devin Franklin

called a state crime lab scientist

to testify about finding similarities between casings and a specific gun, but Franklin wasn’t able to tell the jury in her closing arguments that the gun had been “identified” as a match.

Instead, Franklin said the scientist “didn’t say this was exactly the firearm used. We didn’t ask her to.”

The defendant in Franklin’s case, Wyatt Belcher, was convicted anyway based on

voluminous surveillance footage

and is serving a life sentence.

Last year, Peck and co-counsel Jordan Willetts argued against allowing toolmark analysis to be presented during

Colby Benson’s murder trial.

Multnomah County Circuit Judge Michael Rees allowed it in. Benson was

convicted

in October.

Defense attorneys Cameron Taylor, Willets and Stacey Reding have made similar arguments in recent trials, with varying degrees of success.

“Studies have found that this evidence is not only subjective, it is about as reliable as the flip of a coin,” the trio said in a statement. “Toolmark comparison is subjective junk ‘science’ that has no business being used in Oregon’s courtrooms.”

They suggested that the Appeals Court decision in Adams’ case could lead to numerous appeals from those convicted at trials that contained toolmark testimony.

As for Adams, the now-42-year-old is out of state prison after serving a two-year sentence — with credit for time served. He’s waiting to see if the Multnomah County District Attorney’s Office will seek a new trial.

The case won’t be returned to court for retrial until the state’s appeal is complete. But the district attorney’s office intends to take the case to a new jury if necessary, said Kirsten M. Snowden, first assistant to the district attorney.

— Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com, follow her on X


@maxoregonian


, on Bluesky


@maxbernstein.bsky.social


or on


LinkedIn


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—Zane Sparling covers breaking news and courts for The Oregonian/OregonLive. Reach him at 503-319-7083,


zsparling@oregonian.com


or


@pdxzane


.

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