Brian Zemil was featured in a recent Daily Record story on his February 8, 2010 challenge in the Maryland Court of Special Appeals in regard to 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 fellow Venable attorney David Gray are handling pro bono, involves the use of toolmarking, a widely accepted ballistics procedure. A favorable ruling in this appeal could have significant impact on convictions secured with toolmark identification as forensic technology and result in the reversal of 40 years of precedent.
"The methodology used by the state's examiners is unvalidated and without scientific backing," said Zemil, a partner in Venable's Towson office.
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. According to Zemil, no scientific measurements are taken using pattern matching - despite studies showing those same markings could come from different guns and different gun manufacturers.
Zemil presented an alternative method to pattern matching called the consecutive matching striae (CMS) technique, which makes the analysis quantitative by using a numeric threshold to rule out other guns as the bullet's source rather than identifying a match. 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.
In the challenge, Zemil countered jurors had a right to hear about CMS to draw their own conclusions about prosecutors’ evidence.
"The very underpinning of [the state examiner's] evidence has no objectivity," said Zemil.