Thursday, June 23, 2011

Dr. Barry Logan, Forensic Toxicologist, Scottland


BARRY  LOGAN, FORENSIC TOXICOLOGIST

Barry K. Logan, Ph.D., DABFT

National Director, Forensic Services



Dr Logan.jpgDr. Barry K. Logan is a leading international authority on forensic toxicology with specific interests in alcohol and drug impaired driving, and postmortem toxicology. He served for nineteen years as State Toxicologist for the state of Washington, overseeing the State's forensic alcohol and drug testing programs. In 2008 he joined NMS Labs in Willow Grove, PA as Director of Toxicological and Forensic Services.


Dr. Logan is Board Certified by the American Board of Forensic Toxicologists (ABFT), and has over 80 publications in the peer-reviewed literature including treatises on the effects of methamphetamine, cocaine, marijuana, alcohol, hallucinogens and depressant drugs on drivers, and postmortem redistribution of drugs. He has testified in civil and criminal cases in over 200 trials in ten states and in federal court. His current research areas include analysis and toxicology of designer drugs and synthetic cannabinoid analogs.


Dr. Logan was the recipient of TIAFT's 2003 mid- career achievement award for excellence in forensic toxicology, is the recipient of the 2010 American Academy of Forensic Sciences (AAFS) Rolla N. Harger Award, and the 2011, National Safety Council’s Robert F Borkenstein Award.


Since 2001, Dr Logan has served as Director of Indiana University's Center for Studies of Law in Action, where he has hosted experts in alcohol and drug impairment from around the world as members of the faculty. In 2010 he also became Executive Director of the Center for Forensic Science Research and Education, at the Fredric Rieders Family Renaissance Foundation in Willow Grove, PA. He has faculty appointments at the University of Washington, Indiana University, and Arcadia University.

DOROTHY CLAY SIMMS, DEFENSE ATTORNEY
Dr. Barry Logan is next witness. He is a forensic toxicologist. Dorothy Sims is questioning.
He is experienced with air sampling and the gas chromotograph  mas spectrometer.  He teaches on this subject at Arcadia Univiersity in Philedelphia . He is experienced in air sampling. He is employed at MNS labs in Pennysylvania. He is a National director. This is the biggest lab in the country. He is an accomplished author.Dr. Logan is also an analytical chemist. He turns to jury while answering questions.


EXAMPLE OF GAS CHROMATOGRAPH RESULTS. THIS IMAGE SHOWS PEAKS .
He audits other labs.  He is entered as an expert witness
Ashton> BL testifies that he works as an analytical chemist daily. Ashton wants to know what analytical chemistry does he perform outside of toxicology. He testifies he tests biological evidence. Not everything he looks for is drug related. He is not an expert in every area of analytical chemist. He testifies ost is toxicology. His experience with cryo trapping was in grad school. He is not an expert in all Forensic science.  Ashton tells job he wants this witness entered in as only a forensic toxicologists, not analycal chemistry or cryo-trapping. 
Sims questions BL further to prove his expertise in other areas. 
Judge Perry enters witness as an expert in forensic toxicologist only. 
BL was given evidence from trunk of Pontiac Sunfire and reports from Oak Ridge National laboratory

http://www.wesh.com/pdf/27161862/detail.html  LINK TO DR BARRY LOGANS'S REPORT

Here comes the giant note pad and easel. Ashton moves closer to see and Sims puts on a wireless microphone. Sidebar.
During sidebars white noise is pumped through speakers in courtroom, per reports.  BL is testifying to the methodology of determination of type of and purpose of testing based on evidence  material provided. He is reviewing his notes and testifying the reports and deposition of the doctors from Oak Ridge laboratory. Simms wants BL to comment on the reports and bench notes. Ashton objects and sidebar.
BL testifies that there were no formal protocals for the testing that was performed. If you don not have a written protocal for testing, there is no way to assure the methodology of testing is similar .This may  produce erroneous results. Judge once again sustained an objection but then told attorneys to approach the bench. He sounded annoyed or frustrated.   Sidebar
BL testifies that there was no documentation of protection of contamination of samples. Ashton object that absence of information does not prove lack.  Overruled. BL testifies that there was no documentation  of quality assurance of lab procedure.  Proper controls was not discussed in documentation .  Simms asks about controls and Ashtons objections are sustained.  Simms asks if there was anything in the bench notes that caused him to question the test. Ashton objects and is sustained Simms attempts to move on but Ashton objects and objection is sustained. 
BL explains a "blank" sample is a sample that does not contain the chemical you want to test.  Simms > if you run a blank sample, and do not change the computer d........... BL> I don't know what you are asking. .Ashton stands before Sims even finishes asking a question. He has objected to nearly every question asked. Sidebar.
BL testifies that running a blank sample and do not change the computer , you will not get a reliable result.  Ashton objects to his answer as to not within his scope and moves to strike his answer. The answer is struck from  the record. BL testifies if you run a blank sample and get a result  , it could be a procedural error of false -postivie.  BL testifies that the bench notes read that sometimes the valves were not closed. It could alter results. 
BL testifies that techniques in testing were changed in the process of testing per reports. Ashton continues to object to almost every question and his objections are sustained.   The standards were run at different times as the evidence. 
Simms> What is aleic acid? BL? Fatty acids are found in biolgical evidence. He testifies he has tested fatty acids hundreds of times. Simms  asks him about diffeent fatty acids and if he has worked with them. BL> Yes.   He testifies to what items are specific for each fatty acid. 
Simms asks about fatty acids in pepporoni pizza. Objection , sidebar, and lunch recess
BL testifies that the combination of fatty acids found are found in vegatables. 

Examples of saturated fatty acids

Some common examples of fatty acids:

[




Ashton> shton asks about fatty acids- Logan says they can be found in vegetable material. Ashton points out also decomposing animal fat- BL: yes .  BL states  the carbon chains are different in each acid. The compounds are found in adipocere and dairy products.  Logan is speaking about fatty acids found in adipocere, also known as grave wax.
BL when a blank shows an unexpected result , a scientist should recheck his process and adjust, any errors and re run sample..In both examples in the bench notes,  and they adjusted their errors and re ran results.
Simms> Sims now questions Logan about protocols in re: to decomp detection.  BL the would challenges mean something unexpected. or unusual.  There are no published protocals on how to collect carpet samples and air samples. BL cannot reproduce the testing done on samples by Oak Ridge lab because there is information missing in notes.
Ashton> BL testifies that they could do the same testing on carpet samples as they did by Oak Ridgle labs. Ashton pulls out the air  samples cans and slams  them down in front of witness  on stand. Have you every seen those before. BL> NO Simms Objection, Sidebar.First sidebar after lunch. Sitting in front of Logan are cans of evidence 



Dr. Barry Logan

1:29 witness coming back to the stand.

1:30 Jury coming back in

DIRECT EXAMINATION OF DR. LOGAN BY DS - continued

Where were the four fatty acids found in this case? On a paper towel.

No further questions.

CROSS EXAMINATION BY JA:

All three fatty acids found in combination in vegetable material?

OBJECTION - OVERRULED

Yes, they are - in oily vegetables like palm oil. He is not aware of them being present in cabbage, but they are present in decomposition material.

Yes

OBJECTION - OVERRULED - untimely, question was already answered

the same fatty acids are present in adipocere as in dairy products.

Is the carbon chain the same in both? The four compounds are found in adipocere and dairy products.

Other products found in milk cheese and butter than in adipocere? Yes.

When faced with a challenge with no protocol, they should develop a new protocol.

Any kind of forensic samples can have special challanges.

Journal of Forensic Science does not give step by step methodology for general GCMS testing. Some of it is.

A blank is a sample of room air? When a blank shows some unexpected results, it should be investigated as to whether contamination or machine settings. Stop, make a correction, then run again. The same is true when one finds an open valve error. That was what was reflected in the bench notes.

No further questions.

RE-DIRECT EXAMINATION BY DS:

What do you think "Challenges" mean? Something unusual or unexpected in the study.

What do challenges...

OBJECTION - SUSTAINED
Are there published protocols in how to collect air from the trunk of a car? No, there aren't any.

Are there published protocols on how to collect carpet from the trunk of a car? No.

OBJECTION - SUSTAINED

Could you reproduce this test? No, there is a lot of info not in the bench notes. There would be no way for him to know if he did the test the same way.

RE-CROSS EXAMINATION BY JA:


Your lab doesn't do this kind of test does it? We would be capable of doing it.

He was shown Exhibits 114, 133, 322, 323. He has never seen any of them. If you were given them, could you have tested them?

SIDEBAR #9 (1:43-1:50)

Jury excused - 1:50
HHJBP - Mr. Ashton - your argument. You may want to look at Hayes v State.

JA - Overton v State.

HHJBP - On Hayes - read Headnote #8

JA - State's position is that by defense asking if he could reproduce the results and his answer was no - in Overton - that opens the door as to why he couldn't or whether he tried.

HHJBP - what in Overton suggests this?

JA - He sites Overton and Hayes - burden shifting. The defense's question went to that level.

DS - Doesn't think it is even close. Her questions had to do with the testing in this case - that it could not be reproduced. It is not burden shifting. It is clear that this test can not be reproduced. We move to strike the comment and ask for curative instructions. The Court is correct, Hayes is very clear. The doctor was correct in his answer when he said no because it was not clear as to what Dr. Wise or Dr. Vass did.

HHJBP: FSC in Hayes addressed a proposition of law dealing with burden shifting - shifting the burden of proof from the prosecution to the defendant. His honor then read the facts of that case. He then described the Overton findings.

The Defense's objection to line of questioning is SUSTAINED in that it would shift the burden.

HHJBP - Before lunch, he asked the defense to read Cuban v. State dealing with attacking the validity of another expert's opinion. This witness has not been qualified as an expert in the area of air sample analysis. My order during Frye hearing was that this witness was not qualified to render an opinion in that area. He is qualified in analytical chemistry. I would tread very likely in this area, because, while you did not open the door, it looks like you are trying to get it cracked open and Mr. Ashton is looking like he is trying to run a mack truck through the door. You can't use the burden of proof as a shield and then turn around and use it as a club against the state.

DS - she objects to JA going up to the jury with the bags of evidence. She wants a curative instruction to the jury.

HHJBP - Well, you did not object to it. If I do that, the only thing it is going to do is an instant replay on that. If you are asking for instructions to disregard last line of questioning, I can do that.

DS - she feels that would be just fine.

CM - Curative instructions found in first quote His Honor read would be appropriate and he would request that.

JA - As to which question? The question was, if you had been sent one of those, could you have tested it? At this point, he does not feel a curative instruction is necessary.

HHJBP - out of an abundance of caution, I think it is necessary.

HHJBP - to JA you have a right to proffer,

PROFFER BY JA

Could you take a sample from one of these and put it in a Tevlar bag and heat it and then extract an amount of air, inject it into a GCMS with cryo-trapping if they had such a machine. There is not sufficient info in the paper or notes to set the machine properly. He is not sure at this point what additional info is needed.

HHJBP - to the defense, if you are trying to impeach an expert, you cannot impeach the validity of the expert's opinion. You have to do that by showing another expert's opinion is different. That is the problem with this whole line of questioning.

HHJBP - Both sides read Network Publications.

2:23 - 10 minute recess.












Hayes vs State > http://www.miami-criminal-lawyer.net/caselaw/2011/02/25/damion-hayes-appellant-v-state-of-florida-appellee/


Ashton then  states he is looking for State vs Overton.   We do not know yet what they are going to argue.

Oveton versus State >http://www.miami-criminal-lawyer.net/caselaw/2007/11/29/overton-v-state/


Ashton- spermicide evident in sheet - recommended more testing ....during cross SA were allowed bring out - DT intended to do so.....believe in this case - question is admissable

Overton by their questions - can be so aggressive on question can place burden upon themselves....DT asked can you reproduce the result ...


Sims- I agree with you ...prejudicial and in error - completely different in this case...

clear experiment conducted in this case - no protocols followed....nothing dileniated...if circumstances to reproduce results...not what the SA alleges- court is correct case is very clear....Dr was asked replicatable he said no....it wasn't clear What Dr. Vass & Wise had done

judge- anyone else? no sir

Hays vs. State addressed a proposition- burden shifting shifts burden of proof from prosecution to defendant ....court in Hays...4 error occur when prosecutor ask failure of scientific evidence...SA called LE re: clothing stain w/blood....on cross brought out SA never requsted testing....a test of blood could have eliminated Hays a suspect.....Judge overrule ....whether any defense asked to test....similar comments made concern failure of hairs defense did not test evidence @ murder - pg 188 1991 FL supreme decision...found error on defense call particular witness.....SA have to prove beyond reasonable doubt.....accordingly not defense failure ....defendant carried burden of evidence.....may have jury to leave had obligation to test evidence found @ scene to prove it didn't match....prove no such obligation


Overton vs. State 2001 decision Fl Supreme Court - next motion for mistrial...SA had disclosed argument only one type of test....Overton misleading ....mistrial was ....so prejudicial .....based upon evidence introduced defense admitted sample @ trial...attempted to....prosecution only requested one test....confirmatory test was a proper during trial....more testing was needed noting defense only submitted one sample SA wanted more testing .....we do ....SA was a proper comment and not so eviciate the entire trial.....

DT object to rely on question - is sustained - shift burden of proof to defense NOW
earlier before lunch - ask defense read case of Cuban vs. State .....dealing with attack validity of another expert opinion....this witness has not been qualified as an expert in area air sample analysis....during Frye hearing order - when Dr. testified....what I said that Dr was not qualified @ that time train and experience in that area was reading 2 articles from Dr. Strephanopolis and Dr. Vass....he is qualified as toxicologist and some areas in analytical chemistry...tread very lightly.....while you have not opened that door yet...Mr. Ashton is ready to run Mack Truck thru that door...cannot use it as a shield and then turnaround and use it as a club against the state....the proper line...well that is not my job....questioning about the cans...subjecting opening the door.....


Simmswe would ask for curative instruction to the jury and the manner he lined the cans up...you didn't object...if I do that you are getting replay...if you are asking for instruction .....last question from Mr. A ...say objection is sustained I could do that...DS I have a feeling that would be just fine....remove those items as well? HHBP we can do that..

Cheney Mason- curative instruction....that sentence from Supreme Court - ask for instruction for burden of proof
Judge- as to which question?
HHBP for the last question I will have court reporter find - I will do that....

If you have been sent one of those could you have tested it? @ this point no curative instructions needed - didn't say who ......think curative for abundance of caution....if you want to profer ...

judge>- qustion DS asked whether could she reproduce the results?
JA - DR. logan can you take these cans and test in tevlar bag....35 degrees centigrade, extract amount, inject into cryotrapping? we don't have cryotrapping instruments we could if we had one....not enough information in Lab notes to replicate -

Dr. Logan would to review his article...at this point not sure - take a moment to do that...aren't the settings of the machine in the lab notes?
JA will withdraw...

Judge.- question by dt - this whole area is just like walking on quicksand....to the DT trying to impeach an expert you cannot impeach an experts ? - have to do that by showing another experts conclusions were different....you don't have an expert to show their exam is different...that is problem with this whole line of questioning! Both sides read 2000 decision...take 10 min recess.

__________________


Ashton>They are reviewing a previous case Overton v State about a specific line of questioning. He says defense has opened a door when Simms asked if BL could replica tsting.Ashton says the defense's line of questioning shifts burden of proof. 


Simms> Argues against it.States JP is correct in citing Hayes Vs State


JP> Explains Hayes vs State in which there was a statement about the type and quality of blood sample testing. 



Hays vs. State addressed a proposition- burden shifting shifts burden of proof from prosecution to defendant ....court in Hays...4 error occur when prosecutor ask failure of scientific evidence...SA called LE re: clothing stain w/blood....on cross brought out SA never requsted testing....a test of blood could have eliminated Hays a suspect.....Judge overrule ....whether any defense asked to test....similar comments made concern failure of hairs defense did not test evidence @ murder - pg 188 1991 FL supreme decision...found error on defense call particular witness.....SA have to prove beyond reasonable doubt.....accordingly not defense failure ....defendant carried burden of evidence.....may have jury to leave had obligation to test evidence found @ scene to prove it didn't match....prove no such obligation


Overton vs. State 2001 decision Fl Supreme Court - next motion for mistrial...SA had disclosed argument only one type of test....Overton misleading ....mistrial was ....so prejudicial .....based upon evidence introduced defense admitted sample @ trial...attempted to....prosecution only requested one test....confirmatory test was a proper during trial....more testing was needed noting defense only submitted one sample SA wanted more testing .....we do ....SA was a proper comment and not so eviciate the entire trial.....

DT object to rely on question - is sustained - shift burden of proof to defense NOW
earlier before lunch - ask defense read case of Cuban vs. State .....dealing with attack validity of another expert opinion....this witness has not been qualified as an expert in area air sample analysis....during Frye hearing order - when Dr. testified....what I said that Dr was not qualified @ that time train and experience in that area was reading 2 articles from Dr. Strephanopolis and Dr. Vass....he is qualified as toxicologist and some areas in analytical chemistry...tread very lightly.....while you have not opened that door yet...Mr. Ashton is ready to run Mack Truck thru that door...cannot use it as a shield and then turnaround and use it as a club against the state....the proper line...well that is not my job....questioning about the cans...subjecting opening the door.....


Simms we would ask for curative instruction to the jury and the manner he lined the cans up...you didn't object...if I do that you are getting replay...if you are asking for instruction .....last question from Mr. A ...say objection is sustained I could do that...DS I have a feeling that would be just fine....remove those items as well? HHBP we can do that..

Cheney Mason- curative instruction....that sentence from Supreme Court - ask for instruction for burden of proof

AShton- as to which question?
Judge> for the last question I will have court reporter find - I will do that....

If you have been sent one of those could you have tested it? @ this point no curative instructions needed - didn't say who ......think curative for abundance of caution....if you want to profer ...

Judge- qustion DS asked whether could she reproduce the results?
Ashton DR. logan can you take these cans and test in tevlar bag....35 degrees centigrade, extract amount, inject into cryotrapping? we don't have cryotrapping instruments we could if we had one....not enough information in Lab notes to replicate -

Dr. Logan would to review his article...at this point not sure - take a moment to do that...aren't the settings of the machine in the lab notes?
JA will withdraw...

Judge- question by dt - this whole area is just like walking on quicksand....to the defense trying to impeach an expert you cannot impeach an experts ? - have to do that by showing another experts conclusions were different....you don't have an expert to show their exam is different...that is problem with this whole line of questioning! Both sides read 2000 decision...take 10 min recess.

__________________




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