Kentucky Supreme Court Upholds Bullet-Matching Testimony

Our Kentucky correspondent, Barry Miller, reports on a Kentucky Supreme Court decision in a well-publicized case involving the murder of a University of Kentucky football player:

The case involved multiple allegations of prosecutorial misconduct, and the conviction was reversed because the prosecutor commented in closing on the defendant's failure to testify. One of the few things that went the prosecution's way was the Daubert challenge.

Kathleen Lundy, an FBI forensic investigator, testified that a bullet fragment taken from the body of the victim was "analytically indistinguishable" from bullets in a box found during a search at the home of one of the defendant's parents. Her analysis was based upon the fact that most bullets are made from recycled lead batteries. Smelters compact and melt the used batteries to extract as much pure lead as possible from them. The melted lead is then cast into smaller bricks of between 60-125 pounds, or larger blocks weighing 1,000 to 2,000 pounds. Each such brick or block will contain certain impurities. Ms. Lundy compared the impurity content of the bullet fragment to the impurity content of the bullets found during the search, using "inductively coupled plasma-atomic emission spectroscopy" (ICP). She then opined that they came from the same brick or block of lead. The methodology itself was apparently not in question; one opposing expert admitted that ICP was a scientifically reliable method for determining the percentage of trace elements in bullets.

Another opposing expert testified that, because of the method in which the bullet manufacturer purchased lead, millions of bullets would be "analytically indistinguishable" from the bullet fragment, and therefore from the same batch of molten lead. The Court stated that this made it a close question whether Dr. Lundy's testimony was helpful to the jury. But because this fact affected only the weight of the testimony, and not the scientific analysis, it held Lundy's testimony admissible.

A side issue arose from the Daubert hearing regarding Lundy's methods. During that hearing, she testified that the manufacturer purchased its lead in such a way that would result in considerably fewer bullets being "analytically indistinguishable." In an internal FBI memo Lundy stated "I cannot explain why I made the original error . . . nor why, knowing that the testimony was false, I failed to correct it at the time." (Louisville Courier-Journal, Sept. 6, 2002.) Defendant sought a new trial on the basis that the pro-prosecution Daubert ruling was obtained by perjured testimony. The Supreme Court accepted the trial court's statement that it would have ruled the same way, even if Lundy had testified correctly -- again, because that would have affected only the weight to give her testimony, and not the reliability of her methodology.

See Ragland v. Commonwealth, No. 2003-SC-0084-TG (Ky. Nov. 18, 2004).