1.Renewed Motion to Suppress Bullet Fragment FL Test Results

MR. BUTING: I do, Judge. At this time I'm making a motion to suppress and to move to strike any of the testimony and evidence regarding the results of the bullet fragment FL that was testified to about yesterday. The reasons are, I'm renewing the motion that I filed in this court entitled Defendant's Motion to Assure Fair Forensic Testing, which was filed on March 6 of 2006.

In that motion I, ironically, or maybe not so ironically, predicted that there would be potential of contamination and complete consumption of evidence that would potentially hamper the defense ability to get a fair trial and to be able to meet the State's evidence.

The motion was filed on March 9th. The State replied, ironically, arguing that the State Crime Lab was unlike other Crime Labs that I had cited from other parts of the country that had had problems with contamination or outright fraud. The State replied arguing that there's no evidence of any contamination history or record in the State of Wisconsin's Crime Lab and that having a defense expert present, again ironically, would make a -- would increase the risk for contamination.

Now, here we hear that the State Crime Lab brought in new trainees, which increased the risk of contamination, during that critical test. When we could have very easily had a defense expert also there and observing, at a minimum, if she was going to use up all the sample and thereby prevent the defense from retesting it itself.

The motion was heard on March 17th, 2006, and that's before that bullet even arrived at the Crime Lab. Now we hear, two weeks later, two to three weeks later, Ms Culhane does this extraction on the bullet, uses it all up, contaminates the testing process, and we have no recourse other than relying on cross-examination to try and point out those mistakes.

The -- In the motion hearing, which we heard on -- which was heard on March 17th, Mr. Gahn made a point of saying -- one of the things we had talked about is that our expert had in prior cases been able -- particularly in Illinois Crime Lab -- been able to be present when there is an instance of sort of a one time test where there is not going to be enough for both sides to later test.

And Mr. Gahn says, in all candor -- I'm quoting from the transcript -- In all candor, I will admit to the Court I have heard of cases where that is done, or there is an agreement between the defense and the prosecution to send the item for independent testing. But those generally are cases where there's one critical piece of evidence and there will be total consumption of that evidence.

Skipping down a little bit. Where it's just one piece of evidence that could be inculpatory or exculpatory and the defendant has no other comparable means of getting that evidence analyzed.

Clearly, Mr. Gahn was on notice that if that situation arise -- arose in this case, and that a critical piece of evidence was going to be completely consumed by the State's tests, that some effort should have been made to assure fair forensic testing, which is what we ask for in our motion. Instead, we heard what happened yesterday. The Crime Lab analyst consumed the entire sample and denied us the opportunity for a retest, which all along Mr. Gahn has been arguing is the solution, you know, just retest. We're happy to have you retest.

But we can't retest when there's been an extraction that's contaminated and that was made clear yesterday. So, the Court, by the way, also, in its decision, made a point of noting that the Court was not aware that our State Crime Lab has been involved in incidents of mistakes, and contamination, things of that sort, unlike other crime labs.

Now, it turns out that the State knew, back then, that the Crime Lab was keeping a contamination log. And they knew that, at least by then, there was probably 75 incidents that they had recorded of contamination. And that wasn't disclosed to the Court or to the defense. It was only -- In fact that wasn't disclosed even in our original discovery request for the bench notes and lab sheets and all of that stuff. We had to make a separate independent request for a contamination log, if one existed, before we got that information. So I think the decision that the Court made in March was based on faulty information. I think the State should bear the penalty for that. I think that shows bad faith, both in the failure to disclose that there was a history of contamination at the time we made this motion and argument, and bad faith in that, even after it was made clear to the Court that the defense had concerns about a single one shot test that would consume everything, the State, nevertheless, went ahead and did that and did it while training somebody, resulting in a contamination.

So, for all those reasons, I think the Court doesn't have to decide this today, but I want to put it on the record today. For all those reasons I am renewing my motion and asking that the test results be suppressed, that the jury be instructed accordingly, and we can decide this at a later date, but certainly, obviously, before the case is sent to the jury.