Issues in Explosives Residue Analysis A Primer for the Bar Frederic Whitehurst, Ph.D.[1]

[Editors Note: This is a multi-part series deigned to educate the defense bar on important issues concerning explosive and explosive residue investigations]

Part 1: Introduction

Part 2: Back to the Basics: Was it the result of an explosive device in the first place? How do we know that?

Part 3: Daubert provides guidance and a means to expose laminations and evaluate explosive investigations, methods, and interpretation

Part 4: The Explosion Crime Scene: Sampling and Homogeneity Issues

Part 5: Disposition Homogeneity in explosive scene investigation

Part 6: Contamination and Cross Contamination in explosive scene investigation

Part 7: Contamination by “Render-Safe” acts of explosives

Part 8: Transportation and storage of evidence in explosive scene investigation

Part 9: Chemical analysis in explosive scene investigation

Part 10: Identifying Techniques in explosive scene investigation

Part 11: Interpretation of data in explosive scene investigation

Part 12: Experience: What makes for a proper expert in explosive scene investigation?

Part 13: Conclusion]

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On February 26, 1992, a massive explosion ripped through the garage underneath the World Trade Center in New York City. Initiated by terrorist explosives, this bombing left hundreds of millions of dollars in damage, six dead and over 1000 injured citizens and this country profoundly shaken in its belief in its own security. On April 19, 1995 another massive explosion, the deadliest terrorist attack ever on U.S. soil[2] ripped apart the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, killing a large number of small children among the victims. Recent years have seen numerous incidents such as this. The downing of Pan Am Flight 103 over Lockerbie, Scotland, is well known as is the bombing of Avianca Flight 203 in Colombia and the bombing of an Air India flight over the Atlantic Ocean. Criminal bombings also attack public figures such as occurred in the assassination of the Italian judges Giovanni Falcone and Paulo Borcelino in Sicily and Federal Judge Robert Vance in Atlanta, Georgia.

According to the 1993 FBI Bomb Data Center Summary [3] two thousand nine hundred and eighty bombing incidents were reported to the Bomb Data Center in 1993. Casualties from those bombings numbered 1,372 including the 1042 injured in the World Trade Center bombing. Forty-nine of those injuries resulted in death. Damage to properties in 1993 was calculated at approximately $518,000,000 with $510,000,000 damage to the World Trade Center building alone. [4]

The criminal investigations invariably lead to the identification of alleged perpetrators and their being brought to trial. In the author’s experience, members of the bar have been initially unprepared in their understanding of the issues that are associated with the part of those investigations, which involve the forensic analysis of the crime scenes. Berger[5] notes that the bar needed to begin to ask questions before DNA analyses were questioned.

This paper will attempt to educate the bar to also ask questions in one of the areas of those investigations, the area of explosives and explosives residue analysis, in order that counsel will be better prepared to correctly address those issues when they are met. The paper will present a “hard look” [6] at the issues presented by this complex problem and suggest methods of handling the problems.

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[1] Executive Director, Forensic Justice Project, Washington, D.C., B.S. Chemistry, 1974, East Carolina University, Ph.D. in Chemistry, 1980, Duke University, J.D., 1996, Georgetown University School of Law. (202)342-6980.

[2] Sue Anne Pressley, Bombing Kills Dozens in Federal Building, Children in Day Care Center Among Victims of Apparent Terrorist Attack in Oklahoma City, Washington Post, April 20, 1995 at A1.

[3] Federal Bureau of Investigation, US Depratment of Justice, 1993 Bomb Summary.

[4] Id, at 13,14.

[5] Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 MINN. L. REV. 1345 1355 (1994) notes that possible limitations on finding matches in DNA samples, as when DNA was graded or contaminated, were not explored until lawyers, academics, and law reviews began asking specific questions.

[6] Turpin v. Merrell Dow Pharmaceuticals, Inc. 959 F.2d 1349,1352 (6th Cir. 1992) suggests judges take a “hard look” at “the reasonableness of scientific theories and inferences before they decide whether there is enough to the case for it to go to the jury.”