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Tuesday, July 31, 2012

Ruled Out -- part 2

From the online article, Standards for Questioned Document Examination, published by ASTM International (The American Society for Testing and Materials, an organization that develops and publishes technical standards for various materials, products, systems, and services.):
In 1989, a Pennsylvania law review article written by three law professors raised serious doubts concerning the reliability of questioned document examination. Although uneducated in forensic science and having no formal training, the critics raised intelligent issues in their assessment and asked questions never before addressed by document examiners in the field. To summarize, the critics claimed the validity of questioned document examination had never been tested, no validity studies existed in academic literature and the law had never required the document field to prove its expertise. (My emphasis) . . .

Most document examiners paid little attention to the 1989 article. . .

[However, in a 1993 court ruling, Daubert v. Merrell Dow Pharmaceuticals Inc.,] the judge was now assigned the duty of gatekeeper tasked with the role of excluding any scientific discipline not worthy of courtroom testimony. The ruling added four factors, non-exhaustive, for judges to consider when assessing the admissibility of scientific evidence . . . The four factors are:
  • Whether a theory or technique can be, or has been, tested;
  • Whether the theory or technique has been subjected to peer review and publication;
  • Whether there is a known or potential rate of error; and
  • Whether there are standards controlling the technique’s operation. . . .
The first successful attempt to limit a document examiner's testimony came in U.S. v. Timothy James McVeigh in 1997. In McVeigh, the court determined that the document examiner would not be allowed to testify to an opinion but instead could merely point out similarities and differences. . . (My emphasis)

Other disappointing rulings for the forensic document field include U.S. v. Kent Rutherford and U.S. v. Chan Ian Saelee. In Rutherford, the document examiner was allowed to point out similarities and differences found in the evidence but could not testify to an opinion. In Saelee, the court excluded the document examiner from testifying altogether, stating “the government has failed to meet its burden of establishing that the proffered expert testimony in this case is admissible under Rule 702.” These exclusions were a wake-up call to the document community and helped ignite needed research that would prove most beneficial and would promote better organization and materials for attorneys involved in these challenges. Of the greatest benefit was the need to standardize all methodologies and examination practices used in the questioned document field. . .

In order to defend the field, more standards needed to be drafted. Because drafting a standard is an arduous task, the process of writing the necessary standards was a slow one. Around 1997, the U.S. Federal Bureau of Investigation created an organization called the Technical Working Group for Document Examination, or TWGDOC. This group was made up of members from various laboratories, and its purpose was to speed up the drafting of questioned document standards. A few years later the technical working group would change to the scientific working group, or SWGDOC. Today, nearly all of Subcommittee E30.02’s standards are based on guidelines written by SWGDOC. (My emphasis)
Please forgive the long quotation, but it is necessary at this point to pay closer attention to issues such as 1. whether questioned document examination is subject to objective testing; 2. whether there is a process of peer review; 3. whether there are known rates of error; 4. whether there are objectively determined standards against which an opinion is offered. As we learn from the above history, it wasn't until 1997, no doubt as a response to the McVeigh case, that the FBI created its Technical Working Group for Document Examination and not until "a few years later" that it adopted scientific methodologies.

Since both the decision to rule John out and the many efforts to rule Patsy in date from 1997, they were clearly not based on the new standards, and there is some question as to whether these decisions followed any standards at all. Since literally every other aspect of this case has been subject to the most intense review, questioning, and debate, I find it remarkable that the decision to rule out what was initially the chief suspect has to my knowledge never been questioned at all by anyone involved in this investigation.


  1. Perhaps John will be looked at more intensively in light of Kolar's book but, alas, I really don't think he or anyone else will ever be convicted. Do you?

    1. Convicting John would be very difficult, especially because of the decision to rule him out as writer of the note. Also, it is no longer possible to cross examine Patsy, who imo knew more than she was willing to say. It is possible, however, to cross examine Burke, who also, I suspect, knows some things he's been unwilling to share with the authorities. In my opinion a very aggressive prosecution by an intelligent and well informed prosecutor could succeed. The first step would be to demonstrate that John could in fact have written the note, i.e., that ruling him out was a mistake. The next step would be to compile all the instances where John deliberately misled the investigators and in fact lied. I'll be having more to say on these possibilities in future posts.

  2. What I don't understand is where is all of the evidence used to clean up the crime scene. There must be something that links JR to the crime. I mean how would he have cleaned off her body. Or what about the clothes he wore?

    1. Excellent question. John could have used something as simple as a handkerchief to wipe down JonBenet and wipe his prints off the "garotte." This and other evidence he could simply have pocketed and then, during the time Arndt lost track of him later that morning, wandered outside and dumped it all in a gutter or sewer. As for his clothes, fibers from his shirt were found in JonBenet's crotch area. This could have been an "innocent" transfer -- or not -- difficult to say.

    2. I think he stashed items in his golf bag. That's why he needed his clubs so badly.

  3. Before believing anything in this book, read about the author and his involvement in terrorizing a family in Telluride, Colorado and covering up the murder of a senior citizen for political gain.
    Also available for Kindle

    1. Are you referring to Kolar's book?

  4. There a killer on the loose, If I lived in Boulder, I would keep my babies close to me.

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