Anoka judge rejects gunshot residue evidence

Ruling in pool hall killings appears to be a U.S. first

BY DAVE ORRICK

Pioneer Press

An Anoka County judge has thrown out gunshot residue evidence police say helped solve the case of the killings of two men, a ruling that highlights growing skepticism across the country about such evidence.

The decision by District Judge Sharon Hall in the case of a Columbia Heights pool hall shooting last year appears to be the first of its kind in the United States, one national expert said.

Gunshot residue — long-purported by police and prosecutors to link suspects with shootings — lacks scientific backing and has no place in a courtroom, Hall wrote in a decision that became public Wednesday.

Prosecutors in the case did not comment.

Hall's ruling, which may be appealed, isn't likely to change police tactics overnight.

Police and prosecutors around the world continue to rely on gunshot residue evidence, and officials with the Minnesota Bureau of Criminal Apprehension and one of its contracted labs said Wednesday they stand by their methods. Defense attorneys sometimes use the results in support of their cause when a client tests negative.

Hall wrote that because "significant questions exist in the scientific community" about the reliability of gunshot residue analysis, Anoka County prosecutors will not be allowed to tell jurors that several defendants in the pool hall shooting tested positive.

On Feb. 3, 2005, a dispute inside Jimmy's Pro Billiards spilled into a gunfight outside, peppering nearby houses with bullets. When it was over, Bunsean Lieng, 19, and Tashi Sonam Jagottsang, 21, were dead and several others were injured. Nine people have been charged with aiding and abetting first-degree murder.

Columbia Heights police and Anoka County sheriff's officers tested five co-defendants — Jason Moua, 25, Meng Vang, 26, Sai Vang, 20, Charles Yang, 22, and Grogan Yang, 19 — for gunshot residue. A private crime lab, Pennsylvania-based R.J. Lee Group, detected varying amounts of tell-tale substances on each. Prosecutors planned to tell jurors about those results as a means of linking the men to the shooting; defense attorneys successfully sought to suppress it.

Hall criticized investigators for how they collected the evidence, noting that officers cuffed the suspects one after another with ungloved hands, potentially transferring the powder among them. At one point, an officer ordered some of them to wash their hands before the test, giving weight to defense attorneys' contention that any residue could have come from the police station itself.

But more significant was what Hall said about gunshot residue analysis in general. "This court is not convinced the relevant scientific community has a generally accepted standard for interpreting what conclusions can be drawn from GSR testing and analysis," she wrote. "It is clear that significant questions exist … concerning how many particles are required for there to be a positive test."

"It is a first," said Jack King, spokesman for the National Association of Criminal Defense Attorneys, a Washington, D.C., group that has criticized the use of gunshot residue evidence. "I have found no other case, state or federal, where gunshot residue was found to be not generally accepted in the relevant scientific community.''

Patrick Sullivan, a Hennepin County public defender representing suspect Jason Moua, said the ruling should signal the death knell for the technique, which has been used for more than a decade but has come under fire following experiments that show one can pick up the substance from police stations, squad cars, clothing and even someone else's hands.

"It used to be that, generally, the courts would let anyone with a degree testify as an expert," said Sullivan, who successfully argued the issue at a March hearing with co-counsel Paul Schneck. "But now lawyers are saying, 'Wait a minute, how do you know? Where's your study that shows it proves what it says it proves?' "

In March, the FBI ceased testing for gunshot residue at its lab in Quantico, Va. Agents were unable to prevent the lead-rich powder from drifting into its laboratory space, potentially contaminating samples, the Baltimore Sun reported in May, citing FBI documents it had obtained.

But the Bureau has never publicly bashed the method, and supporters underscore that.

"The FBI stopped their testing not because it wasn't a valid technique," said A.J. Schwoeble, director of forensic sciences at the R.J. Lee Group, which is paid by law enforcement agencies around the world to analyze gunshot residue. Schwoeble, who testified for prosecutors in the pool hall hearing, said he thinks Hall is wrong. "We can never say who the shooter is, but we can say someone's in the environment."

In her ruling, Hall said that telling jurors someone has merely been in the "environment" of gunshot residue — which could mean they've been hanging around a police station — is a far cry from being useful in court. "The countless ways the defendant could pick up GSR could cause (the jury) to speculate to its source," she wrote.

In the meantime, local authorities will likely continue to test suspects for gunshot residue, said Kurt Moline, a firearms examiner for the Bureau of Criminal Apprehension's Forensic Science Laboratory.

Dave Orrick can be reached at dorrick@pioneerpress.com or 651-228-2171.