November 11, 2009

Brian Zemil and David Gray's Court of Special Appeals ballistics case featured in the Daily Record

2 min

Brian Zemil and David Gray were featured in a November 8, 2009 Daily Record story on their challenge on the admissibility of ballistics evidence in an appeal of Columbia teenager Monti Maurice Fleming's 2008 conviction of first-degree murder.

The case, which Zemil and Gray are handling pro bono, is tentatively scheduled to go before the Court of Special Appeals in January and involves the use of toolmarking, a widely accepted ballistics procedure. A favorable ruling in the appeal could have significant impact on convictions secured with toolmark identification as forensic technology and result in the reversal of 40 years of precedent.

"This case provides an opportunity for the law to catch up with science," Zemil said. "That is something that is unfortunately typical."

Toolmarking involves "eyeballing" bullet markings under a microscope to prove a match - it is widely used in forensic science, despite the fact that it is based on the invalidated principle that every firearm transfers a unique set of reproducible toolmarks to ammunition fired from a particular gun. No scientific measurements are taken using pattern matching - despite studies showing those same markings could come from different guns and different gun manufacturers, Zemil said.

Gray said he thinks the law shouldn't immediately accept new scientific ideas. "But there comes a point in time where we need to catch things up," he said. "Just because it's old doesn't mean it's right."

While there is no fail-safe ballistics analysis, there is an alternative to pattern matching called the consecutive matching striae technique, Zemil said. Known as CMS, the technique makes the analysis quantitative, using a numeric threshold to rule out other guns as the bullet's source rather than identifying a match. According to the article, the trial judge in Fleming's case ruled that CMS was not generally accepted and could not be brought up during cross examination of the state's experts. That ruling is part of Zemil's appeal.