STATE OF WISCONSIN : CIRCUIT COURT : MILWAUKEE COUNTY

CRIMINAL DIVISION

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STATE OF WISCONSIN,

Plaintiff,

Case No. __________________

Hon. ______________________

v. Next Appearance: __________

at ___________________

_________________________,

Defendant.

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The defendant, by undersigned counsel and upon the affidavit of James M. Shellow, pursuant to the right to effective representation, the right to present a defense, the right to confront witnesses, the right to a fair trial and the right to due process of law, all as guaranteed by the Constitutions of the State of Wisconsin and the United States, and pursuant to the state's obligation to disclose any evidence in its exclusive possession tending to exculpate a defendant, respectfully moves this Court for the entry of an order requiring the state to furnish the defendant with evidence in its possession tending to discredit the opinion of the state's expert that the substance allegedly obtained by the police from the defendant is the same as the substance charged in the Information.

Specifically, the defendant asks this Court to require the state to furnish him with certain scientific data possessed by its crime laboratory. He asks that the following data be supplied on "floppy disks" in a DOS format such that it can be analyzed on an ordinary IBM compatible laptop or PC computer or, in the alternative, in a UNIX format such that it can be converted to a DOS format:

1. Spectra of the particular substances which form the bases for the charges and which the prosecution will claim are within the schedules of the Controlled Substances Act;

2. The spectral libraries contained in the computer associated with or connected to the spectrometer used by the state to analyze the substances in this case;

3. The algorithms contained in the computer associated with or connected to the spectrometer used by the state to analyze the substances in this case, including the algorithms for search of the foregoing spectral libraries;

4. All spectra produced by the instruments used in this case and operated by the analyst who tested the substances in this case in other cases in which he or she reached the same opinions as the analyst reached in this case.

In support of this motion for disclosure, the defendant advises the Court and the prosecution that it is his intent to establish at trial that the instrumental methods and interpretation of data employed by the prosecution's expert witness are not sufficiently specific for a jury to find beyond a reasonable doubt that the substance is the one charged in the information.

Further, the defendant will establish that, utilizing the search algorithms and spectral libraries in the state's own computer data base, the probability of match which the computer will calculate will create a reasonable doubt that the state correctly identified the alleged controlled substance.

Dated at Milwaukee, Wisconsin, ______________, 1993.

Respectfully submitted,

_____________________________ Defendant

SHELLOW, SHELLOW & GLYNN, S.C.

_______________________________________ James M. Shellow

State Bar No. 1006070

P.O. ADDRESS:

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

State of Wisconsin )

) ss

Milwaukee County )

James M. Shellow, being first duly sworn on oath, deposes and says:

1. He is an attorney licensed to practice before this Court and represents the defendant.

2. He makes this affidavit in support of the defendant's MOTION FOR DISCLOSURE OF EXCULPATORY SCIENTIFIC EVIDENCE.

3. On July 1, 1993, before the Honorable John A. Franke, Milwaukee County Circuit Judge, Dr. Michael J. Camp, Director of the Wisconsin State Crime Laboratory at Milwaukee, Wisconsin, testified concerning the instrumentation used by laboratory analysts to identify cocaine and cocaine base. Dr. Camp testified that the laboratory employed a Mattson Fourier Transform Infrared Spectrometer. The testimony of Dr. Camp is attached as Exhibit C.

4. On July 1, 1993, Dr. Camp identified what is attached as Exhibit B as the result of a search of the Crime Laboratory's spectral libraries by the computer which is a part of the Mattson instrument.

Dr. Camp testified that this document was produced by the Crime Laboratory's Mattson infrared spectrometer and that it reflects computerized searches of the six spectral libraries contained in the instrument. He further testified that the Crime Laboratory itself produced four of these libraries.

5. On July 16, 1993, I spoke to Mr. Phillip Glasser, an employee of Mattson Instruments, Inc., and was informed by him that the Milwaukee laboratory of the Wisconsin State Crime Laboratory utilized three Mattson infrared instruments: the Cygnus-25; the Sirius-100; and the Galaxy 4020. Mr. Glasser also stated that the Cygnus-25 system contained the First software and that this software could be used on any commercially available PC or other DOS driven computer.

6. The Mattson First software contains a Correlation Coefficient algorithm which, according to literature provided by Mattson Instruments, Inc. will provide an absolute value with statistical significance of the probability that an unknown compound is a compound in a spectral data base. I have attached as Exhibit A that section of the user's manual which describes the algorithms available in the Mattson spectrometer. The Correlation Coefficient algorithm is discussed at page 10-41.

7. On or about August 23, 1993, Dr. Camp executed an affidavit in which he stated that the instrument at the laboratory which operates in a DOS format and which could generate the spectra in that format and search the libraries in that format was non- functional and had not been functional for several months. He further stated, however, that instruments in the laboratory operating on a UNIX format could produce the spectra and that UNIX formatted libraries could be searched. have attached Dr. Camp's affidavit as Exhibit D.

_________________________

James M. Shellow

Subscribed and sworn to before me

this _____ day of __________, 1993.

Notary Public, State of Wisconsin

My commission: _________________________

STATE OF WISCONSIN : CIRCUIT COURT : MILWAUKEE COUNTY

CRIMINAL DIVISION

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STATE OF WISCONSIN,

Plaintiff,

Case No. __________________

Hon. ______________________

v. Next Appearance: __________

at ___________________

_________________________,

Defendant.

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One of the elements of the offense with which the defendant is charged is that the substance allegedly obtained from him by the police is cocaine base. The prosecution is not entitled to a conviction unless it has proven this element beyond a reasonable doubt.

A part of the defendant's theory of defense is that the substance is not cocaine base, or in the alternative, that the tests performed at the Wisconsin State Crime Laboratory are not sufficiently specific to prove that the substance is cocaine base. It is further his theory that the Crime Laboratory and the instrument which it utilized to identify the substance are capable of an objective determination of its identity and that the

analyst did not employ this feature of the instrument because he feared what the results would show.

The defendant has moved the Court for the entry of an order requiring the Wisconsin State Crime Laboratory to provide him with the results of its analysis in a form suitable to conduct the analysis which the Crime Laboratory failed to perform. ⁽¹⁾

The state has been furnished with data which reflect that on the average forensic laboratories in the United States incorrectly identify street drugs in 28 percent of the cases. ⁽²⁾

Although the state's analyst performed several tests on the substance, he will testify that only one of these is specific for cocaine base. ⁽³⁾ The test which the analyst will claim is specific for cocaine base was performed on a Mattson Fourier transform infrared spectrometer. This instrument generates an infrared spectrum. The spectrum can be reproduced either as a hard paper copy or on a "floppy disk." ⁽⁴⁾

Once a spectrum has been generated, the instrument is capable of searching its spectral libraries and comparing that spectrum with the spectra of each of the thousands of compounds, including cocaine base, in those libraries. The instrument is programmed then to calculate an identification probability. It will list in descending order the ten compounds most likely to be the same as the unknown substance. (See Exhibit B attached to James M. Shellow Affidavit).

The state's analyst did not utilize this feature of the instrument; he merely visually compared the spectrum of the substance with a standard or reference spectrum of cocaine base. The analyst will not know the variability of the infrared spectrum of cocaine base and therefore will be unable to evaluate the comparison statistically.

Moreover, the analyst will be unable to express how similar two spectra must be in order for him to conclude that two compounds are the same. Similarly, he will be unable to express how different two spectra must be in order for him to opine that two compounds are different.

Dr. Camp described the analyst's process of comparing infrared spectra as "intuitive" and testified that each analyst must make his or her own determination whether two infrared spectra are similar enough for the analyst to form an opinion that the substances are the same. Dr. Camp acknowledged that it was possible that two analysts would reach different opinions.

It is apparent from Dr. Camp's testimony that the opinion of the Laboratory analyst is for all practical purposes based solely on his or her individual development of perceptions and intuition. That being so, it is virtually impossible for counsel to establish by cross-examination that the opinion is in error. A conclusion based upon the subjective impression of a witness is virtually unimpeachable in the absence of extrinsic evidence.

Algorithms for computerized searches of spectral libraries were developed to avoid the problems inherent in such intuitive identifications. ⁽⁵⁾

The defendant cannot perform an infrared analysis at an independent private laboratory even if he could afford to do so. There is no exception in the Wisconsin Controlled Substances Act which allows defense counsel to possess a controlled substance for purposes of testing.

Accordingly, the defendant must ask the Court to require the state to provide him with the results of its infrared analysis in a form he can use to search spectral libraries. Once he has the infrared spectrum of the unknown substance on a "floppy disk", he can utilize commercially available search algorithms to search commercially available spectral libraries. At least one of these search algorithms will calculate a probability that the unknown substance is cocaine base. ⁽⁶⁾

The state was required by Court order to furnish the defendant with the results of its scientific tests. Implicit in any such order is the requirement that these results be furnished in a form useful to the defendant.

The state has furnished a paper copy of the infrared spectrum of the substance upon which this prosecution is based. The defendant cannot test this substance at a private laboratory. ⁽⁷⁾

He asks that the Court require the state to furnish the results of its infrared analysis on "floppy disk" (at the defendant's expense) so that he may perform the searches of spectral libraries which were not searched by the state's analyst and objectively compute the probability that the unknown substance is cocaine base.

Dated at Milwaukee, Wisconsin, _______________ 1993.

Respectfully submitted,

_________________________, Defendant

SHELLOW, SHELLOW & GLYNN, S.C.

______________________________

James M. Shellow

State Bar No. 1006070

P.O. ADDRESS:

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

MASTER - 0713p

STATE OF WISCONSIN : CIRCUIT COURT : MILWAUKEE COUNTY

CRIMINAL DIVISION

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STATE OF WISCONSIN,

Plaintiff,

Case No. __________________

Hon. ______________________

v. Next Appearance: __________

at ___________________

_________________________,

Defendant.

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_________________________, by the undersigned counsel,

pursuant to the guarantees of the Sixth and Fourteenth Amendments to the United States Constitution, Article 1, Section 8 of the Wisconsin Constitution and Wis. Stat. §165.79(l), respectfully moves the presiding judge of this court to approve the attached REQUEST FOR SCIENTIFIC ANALYSIS on behalf of the defendant.

In support of this motion the defendant invites the attention of the Court to the testimony of Dr. Michael J. Camp at a hearing in State v. Wandell Lee [Case No. F-931864] on July 1, 1993. Dr. Camp testified that, although the computer attached to the Fourier Transform Infrared Spectrometer, which was employed to analyze the substances in this case, has spectral libraries in its data base, the analysts regularly do not cause the computer to search these data bases and attempt to match the spectra of the alleged cocaine with the spectra in these libraries. Dr. Camp identified the attached Exhibit A as the results of such a search and match in an unrelated prosecution.

In further support of this motion, the defendant attaches as Exhibit B the ruling of the Honorable John A. Franke, Circuit Judge, in the Lee case. Judge Franke ordered that the Wisconsin State Crime Laboratory conduct the tests.

Dated at Milwaukee, Wisconsin, _______________, 1993.

Respectfully submitted,

______________________, Defendant

SHELLOW, SHELLOW & GLYNN, S.C.

_________________________

James M. Shellow

State Bar No. 1006070

P.O. ADDRESS:

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

MASTER - 0590p

STATE OF WISCONSIN : CIRCUIT COURT : MILWAUKEE COUNTY

CRIMINAL DIVISION

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STATE OF WISCONSIN,

Plaintiff,

Case No. __________________

Hon. ______________________

v. Next Appearance: __________

at ___________________

_________________________,

Defendant.

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I by undersigned counsel, pursuant to the order of this Court and the provisions of Wis. Stat. §165.79(l) requests that the personnel of the Wisconsin Crime Laboratory conduct the following scientific analyses upon the substances asserted to be within the schedules of the Controlled Substances Act and upon the identification of which the state will rely in this prosecution:

1. Generate the infrared spectrum of the foregoing samples utilizing the Mattson Fourier Transform Infrared Spectrometer.

2. Search the following spectral library data bases for spectra which match the infrared spectra of these samples: Georgia State Crime Lab, Mattson Instrument Standard FTIR Spectral Library, Wisconsin State Crime Lab - Computer Mix. Library, Wisconsin State Crime Lab - Chem. Physics Library, Wisconsin Crime Lab Synthetic Fiber Library and Wisconsin State Crime Lab - Drug Library.

3. Provide tabular results of the foregoing spectral library searches utilizing all search algorithms, including absolute derivative and correlation coefficient. Search a wavenumber range from four thousand to four hundred fifty. Provide a printout for the results of each search algorithm showing the first ten compounds with the best closeness of fit of the curve, the probability of match, the identification of the spectrum matched, the spectral library in which the computer found that spectrum, and the name of each of the ten compounds matched.

Should you not understand any aspect of this request, please contact undersigned counsel. The attention of crime laboratory personnel is invited to the statutory confidentiality of this request. Wis. Stat. §165.79(l).

Dated at Milwaukee, Wisconsin, _______________, 1993.

Respectfully submitted,

_________________________, Defendant

SHELLOW, SHELLOW & GLYNN, S.C.

_________________________

James M. Shellow

State Bar No. 1006070

P.O. ADDRESS:

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

STATE OF WISCONSIN : CIRCUIT COURT : MILWAUKEE COUNTY

CRIMINAL DIVISION

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STATE OF WISCONSIN,

Plaintiff,

Case No. __________________

Hon. ______________________

v. Next Appearance: __________

at ___________________

_________________________,

Defendant.

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The defendant is indigent. Counsel is appointed. The Court not only has the obligation that he be provided with competent counsel; the Court has the obligation to provide counsel with the "basic tools of an adequate defense. . . ." Ake v. Oklahoma, 470 U.S. 68, 77 (1985), quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971).

This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.

Ake, 470 U.S. at 76.

[The Court] has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system."

Ake, 470 U.S. at 77, quoting Ross v. Moffitt, 417 U.S. 600, 612 (1974).

In part it is the defendant's theory of defense that the substance allegedly obtained from him by the police is not the same as the substance identified in the Information, or alternatively, the tests, as performed by the Wisconsin Crime Laboratory's analyst, are not specific for the substance charged in the Information. "Fundamental fairness" entitles the defendant to an opportunity to present this defense.

The defendant invokes the inherent authority of the Circuit Court to protect his rights to a fair trial, effective representation of counsel and due process of law. He asks that the prosecution be required to direct its forensic laboratory to provide the defendant with certain data in a form in which he can use it. Some of these data are in the exclusive possession of the laboratory; other data can be obtained commercially, but only at a substantial cost.

The State Crime Laboratory persistently refuses to utilize the search algorithms in its infrared spectrometer to compare the spectrum of the unknown compound with the spectra in the laboratory's spectral libraries. The defendant must conduct these comparisons in order to present his defense to this charge.

Accordingly, the defendant requires that the state provide him with the following: ⁽⁸⁾

1. The spectrum of the alleged controlled substance on a "floppy disk" in a DOS format. This spectrum is exclusively available to the state. The Wisconsin Controlled Substances Act does not provide an exception for defense counsel or private laboratories to possess controlled substances for testing purposes.

2. The Mattson search algorithms, including the Correlation Coefficient algorithm, on a "floppy disk" in a DOS format.

3. The spectral libraries, including those assembled by the Wisconsin State Crime Laboratory, on a "floppy disk" in a DOS format. The Crime Laboratory spectral libraries are exclusively within the possession of the state.

4. The Mattson Enhanced First operating program on a "floppy disk."

These data either are in existence at the Crime Laboratory or can be produced at the laboratory at negligible cost. The cost of copying a "floppy disk" is minimal and will be paid for by the defendant. Should any of these data be unavailable because of contractual agreements between the State of Wisconsin and Mattson Instruments, Inc., the defendant will secure contractual waivers from Mattson's counsel or will pay a royalty to Mattson for their use.

Without these data, the defendant cannot mount this defense. The data are basic to an assessment of the analyst's credibility and the probability that the analyst's opinion is accurate. An indigent defendant is entitled under the due process clause to the basic tools of an adequate defense. 470 U.S. at 77; see also Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987) (en banc), cert. denied, 487 U.S. 1210 (1988); Moore v. Kemp, 809 F.2d 702, 711-12 (llth Cir.)(en banc), cert. denied, 481 U.S.1054 (1987); Little v. Streater, 452 U.S. 1 (1981) (requiring state to pay for blood grouping tests requested by indigent putative father in paternity litigation).

The Director of the Milwaukee branch of the Wisconsin State Crime Laboratory, a Ph.D. in organic chemistry, testified that he didn't have the slightest idea how the instrument the laboratory used to identify drugs processed the signal, but acknowledged that, if the processing program was in error, the results could be meaningless. He testified that, instead of an objective analysis, the analysts relied in identifying drugs on an intuitive comparison of infrared spectra. ⁽⁹⁾

Moreover, the analyst will be unable to express how similar two spectra must be in order for him to conclude that two compounds are the same. Similarly, he will be unable to express how different two spectra must be in order for him to opine that two compounds are different.

Dr. Camp testified that each analyst must make his or her own determination whether two infrared spectra are similar enough to form an opinion that the substances are the same. Dr. Camp acknowledged that it was possible that two analysts would reach different opinions. See Exhibit C to James M. Shellow affidavit at 69-70.

However, once the spectrometer has produced a spectrum of the unknown substance, the spectrometer is programmed to search its spectral libraries and compare that spectrum with the spectra of each of the thousands of compounds, including cocaine base, in those libraries. The instrument is programmed then to calculate an identification probability. It will list in descending order the ten compounds most likely to be the same as the unknown substance. (See Exhibit B attached to James M. Shellow Affidavit).

The state's analyst did not utilize this feature of the instrument; he merely visually compared the spectrum of the unknown substance with a standard or reference spectrum of cocaine base. The analyst will not know the variability of the infrared spectrum of cocaine base and therefore will be unable to evaluate the comparison statistically.

It is apparent from Dr. Camp's testimony that the opinion of the Laboratory analyst is for all practical purposes based solely on his or her individual development of perceptions and intuition. That being so, it is virtually impossible for counsel to establish by cross-examination that the opinion is in error. A conclusion based upon the subjective impression of a witness is virtually unimpeachable in the absence of extrinsic evidence.

Algorithms for computerized searches of spectral libraries were developed to avoid the problems inherent in such intuitive identifications. ⁽¹⁰⁾

The defendant cannot perform an infrared analysis at an independent private laboratory even if he could afford to do so. There is no exception in the Wisconsin Controlled Substances Act for the possession of controlled substances for testing purposes.

The prosecution has been furnished with data which show that on the average forensic analysts incorrectly identify street drugs 28% of the time. ⁽¹¹⁾ The analysts at the Wisconsin Crime Laboratory refuse to utilize a methodology which would objectively estimate a probability of match between the substance with which the defendant is charged and the substance which was analyzed. Instead of this objective analysis, crime laboratory personnel give their "expert" opinions based upon intuitive comparisons. As a matter of due process, the defendant must be allowed to challenge this "Junk Science in the Courtroom." ⁽¹²⁾

One of the elements of the offense with which the defendant is charged is that the substance allegedly obtained from him by the police is cocaine base. The prosecution is not entitled to a conviction unless it has proven this element beyond a reasonable doubt.

The crime laboratory uses an analytical instrument which, if properly employed, would yield an objective estimate of the accuracy of the analyst's opinion. The analyst has not utilized this feature of the instrument and will rely on an intuitive sense of similarity of spectra. The defendant has a due process right to challenge this methodology and to demonstrate, if he can, that the analyst's opinion in this case is one of the 28% faulty opinions. ⁽¹³⁾

Dated at Milwaukee, Wisconsin, _______________, 1993.

Respectfully submitted,

______________________, Defendant

SHELLOW, SHELLOW & GLYNN, S.C.

_________________________

James M. Shellow

State Bar No. 1006070

P.O. ADDRESS:

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

C:\wwwfpd\scientif.wpd

1. The constitutional underpinnings of the defendant's motions are implicit in due process. The defendant has the right to make his defense; evidence in support of his defense cannot remain exclusively in the possession of the prosecution. The prosecution has an obligation to furnish the defendant with exculpatory evidence; the state cannot avoid this obligation by a claim that its expert did not perform the exculpatory analysis. The defendant has a right to conduct a meaningful cross-examination of the state's analyst; this right cannot be defeated by the analyst employing a test procedure in which his "expert" opinion will be based solely upon his intuition.

2. The data were served upon the state pursuant to the defendant's obligation under Wis. Stat. §908.03(18)(a).

3. In this Memorandum counsel assumes that the testimony of the Crime Laboratory analyst at trial will not contradict the testimony of Dr. Michael J. Camp, the laboratory director.

4. The paper copy was furnished to defense counsel pursuant to Wis. Stat. §971.23(5); what defense counsel requires is the "floppy disk."

5. Pursuant to Wis. Stat. §908.03(18)(a), the state has been given extensive literature discussing the theory and application of computerized searches of spectral libraries. See also Exhibit A attached to James M. Shellow Affidavit.

6. The instrument utilized by the Crime Laboratory is programmed with a Mattson algorithm which purportedly calculates such an identification probability.

If permitted by the state's contract with Mattson, it would be cost effective for the state also to provide defense counsel (at his expense) with "floppy disks" containing the search algorithms and spectral libraries in its Fourier transform infrared spectrometer. However, of the six spectral libraries shown by the attachment to be in the Crime Laboratory's instrument, Dr. Camp testified that four were prepared by the Crime Laboratory itself and presumably cannot be commercially obtained.

7. The defendant has also moved the Court for an order requiring the Crime Laboratory to perform an infrared analysis on his behalf and then use its own algorithms and spectral libraries to calculate the probability that the suspected substance is cocaine base. The defendant, of course, cannot rely exclusively on this procedure, as the identification probability will be determined in part by the spectra included in the Crime Laboratory's spectral libraries.

8. These data are readily available from the State Crime Laboratory. See affidavit of James M. Shellow attached to the motion.

9. Memorandum counsel assumes that the testimony of the Crime Laboratory analyst at trial will not contradict the testimony of Dr. Michael J. Camp, the laboratory director.

10. Pursuant to Wis. Stat. §908.03(18)(a), the state has been given extensive literature discussing the theory and application of computerized searches of spectral libraries. See also Exhibit A attached to James M. Shellow Affidavit.

11. The data were served upon the state pursuant to the defendant's obligation under Wis. Stat. §908.03(18)(a).

12. Huber, P.W., Galileo's Revenge: Junk Science in the Courtroom, (1993); Daubert v. Merrell Dow Pharmaceuticals, Inc., _____ U.S. _____, 1993 Westlaw 224478 (June 28, 1993).

13. The constitutional underpinnings of the defendant's motions are implicit in due process. The defendant has the right to make his defense; evidence in support of his defense cannot remain exclusively in the possession of the prosecution. The prosecution has an obligation to furnish the defendant with exculpatory evidence; the state cannot avoid this obligation by a claim that its expert did not perform the exculpatory analysis. The defendant has a right to conduct a meaningful cross-examination of the state's analyst; this right cannot be defeated by the analyst employing a test procedure in which his "expert" opinion will be based solely upon his intuition.

The defendant has also moved the Court for an order requiring the Crime Laboratory to perform an infrared analysis on his behalf and then use its own algorithms and spectral libraries to calculate the probability that the suspected substance is cocaine base. The defendant, of course, cannot rely exclusively on this procedure, as the identification probability will be determined in part by the spectra included in the Crime Laboratory's spectral libraries.