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United States v. Palomino

United States District Court, N.D. Illinois, Eastern Division

June 9, 2014

UNITED STATES OF AMERICA,
v.
JASON PALOMINO

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Defendant Jason Palomino presented to the Government an expert witness report the week prior to trial in this case seeking to have Steven Howard testify as an expert in the field of gunshot residue and cross-contamination of that residue that may occur when items are not preserved properly during the collection process. The Court provided the Defense with the opportunity to contact and pay for an expert to testify for Palomino nine months prior to trial. His Defense attorney provided the government and the Court with the expert report ten days prior to trial and a supplemental report three days prior to trial during the Daubert hearing that this Court ordered upon receiving the report. The Government has moved to exclude the testimony alleging that it is unreliable and based on speculation and therefore cannot be helpful to a jury. Instead, the Government urges this Court to exclude the testimony because it will be overly prejudicial to the jury if the jurors receive such unreliable evidence and believe that it should be given the same weight as that of other scientific evidence. In keeping with its gate-keeping function, this Court ordered a Daubert hearing to be held the Friday prior to trial and ordered briefs from both sides.

After listening to the testimony of the Defense expert, Steven Howard, and the evidence presented at the hearing, the Court grants the Government's motion in part and denies it in part. Howard will be permitted to testify based on his experience in the physical collection of gunshot residue procedures and the proper protocol for such collection; but he will be barred from testifying regarding the potential cross-contamination of items and transfer of gunshot residue because Howard failed to identify any reliable principles, methods, or data upon which his opinions are based concerning the transference of gunshot residue between surfaces and the probability of cross-contamination of items.

LEGAL STANDARD

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993). Daubert's gatekeeping obligation applies not only to "scientific" testimony, but to all expert testimony. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Rule 702 permits an expert to offer opinions that will assist the trier of fact provided sufficient facts or data support the expert's opinions and reliable principles and methods applied to the facts of the case produced those opinions. Fed.R.Evid. 702; Ortiz v. City of Chicago, 656 F.3d 523, 526 (7th Cir. 2011). When assessing whether to allow an expert to offer his opinions, courts consider: (1) whether the expert is qualified to offer his opinions; (2) whether the reasoning or methodology underlying the expert's opinion is reliable; and (3) whether the expert's opinions will assist the trier of fact. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010).

DISCUSSION

Steven Howard is an attorney and security and firearms consultant who graduated from Thomas M. Cooley School of Law in 2001. Howard holds a degree in Criminal Justice from Metropolitan State College of Denver from 1998. He has worked as a consultant on matters related to firearms and held a previous position with the United States Border Patrol as a Field Agent where he received training in the collection and preservation of evidence. Howard testified that his undergraduate degree also provided him with evidence collection training. As a firearms consultant, Howard has conducted gunshot residue and cross-contamination "investigations, " as he calls them.

Between 1992 and 1994, Howard testified that he conducted approximately 280 individual gunshot residue cross-contamination tests for his own personal knowledge. Howard testified he conducted these tests for his own edification and that he never wrote up the results of these tests for any scientific journals. He stated that during this time period, he examined numerous materials and surfaces for gunshot residue cross-contamination. He stated that he has testified as an expert witness approximately six times pertaining to gunshot residue collection or cross-contamination-all of which were in state court matters. He has never testified as an expert in federal court and he stated he may have testified more than that but be does not always catalog his testimony on his curriculum vitae. Howard has written two articles in the field of gunshot residue collection and cross-contamination-both of which were written to warn of the potential for cross-contamination. Both were written from a consultant's perspective to challenge law enforcement's use of gunshot residue.

The gunshot residue tests at issue in this criminal trial involve tests performed by the police shortly after the shooting which detected three unique particles: lead, barium, and antimony on the Defendant's hands. To rebut this testimony, Howard was retained by the Defendant to investigate and analyze gunshot residue evidence on a grey sweatshirt allegedly worn by the defendant the night of the shooting. To conduct his independent test, Howard took precautions before collecting samples from the clothing for gunshot residue analysis. First, Howard washed his hands and face, wet his hair, put on a new shirt taken from a sealed bag, and put on rubber gloves. He then proceeded to collect three samples from the sweatshirt for gunshot residue analysis. Howard sent these samples to the R.J. Lee Group for gunshot residue analysis. The undisputed results of the testing showed zero gunshot residue particles on the three samples taken from the sweatshirt.

In his report, Howard opines: (1) no gunshot residue was recovered from the sweatshirt samples; (2) a porous cloth garment will retain gunshot residue better than skin; (3) given the number of shots fired, ten or more gunshot residue particles should have been recovered from the Defendant's hands; (4) the tests documented in Gunshot Residue in Chicago Police Vehicles and Facilities: An Empirical Study [1](the "Chicago study") parallel the independent tests he conducted between 1992 and 1994; (5) according to the Chicago study, there is over an 11.5 percent chance that the Defendant was contaminated by gunshot residue from a source other than the firearm the moment he was placed in the squad car; (6) many police departments require cross-contamination procedures to be followed or the precinct's forensic unit will forego testing for gunshot residue. He therefore reaches the ultimate expert opinion that it is unlikely the Defendant discharged a firearm or was in the immediate area where a firearm was discharged. Instead, he concludes that any particles found on the Defendant would have come from an alternate source.

This Court will analyze the appropriateness of Mr. Howard's testimony with respect to each of these opinions in turn.

A. No Gunshot Residue was Recovered from the Sweatshirt Samples

Howard has some experience in the field of collection of gunshot residue. He has conducted collection in the past, has been trained on how to collect residue properly both during his education and during his time as a federal agent. He has reviewed current texts on how to collect residue properly. The proper collection of gunshot residue for later lab testing is an area of law enforcement evidence gathering that is outside the ken of the average juror and therefore his testimony will be helpful to the jury. The fact that he has not performed the actual testing on the residue will narrow his testimony significantly and his limited role in law enforcement certainly will be fodder for cross examination but both go to the weight of the testimony and not to its admissibility. Therefore, he will be permitted to discuss the proper collection and preservation of ...


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