Opposition Brief — Burtchett v. Montana

JAMES BURTCHETT, = _- . Petitioner,

oe ; lee ee a ie

) THE STATE OF MONTANA, | Respondent.

a

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI TO.THE 9

SUPREME COURT OF THE STATE =

OF MONTANA =

Attorney for Respondents

and JOHN F. NORTH a ope os

Office of the Attorney General *

Helena, ontana 59601.

TABLE OF CONTENTS

Table of Authorities

Statement of Maets

Reasons for Denying the Writ

Certifiente of Service

APPENDIX A

Kxcerpts of Yeager’s Testimony

APPENDIX B

excerpts of Midkiff» Testimony

APPENDIX ©

exeerpts of Pro's Testimony

Au

“hie

TABLE OF AUTHORITIES

CASES

Page

Ls. SUPREME COURT

Sisk: a Nausas

274 US. B80 (1927) 4

United States vo Marion

404 TLS. DOT (1971) » 6.9

CIRCUIT COURT OF APPEALS

United States vr. Beitscher

407 Fi2d 269 (10th Cin, 1972) s

Copal d Nhat ae Dal “

454 Fv 0 1st Cir, 1972) ”

lonele d NStlat a D fie siadte

458 Biv 151 (oth Cir. 1972) s

Iwate dl State s Pr Duhkow

405 Rd DOS! (red Cir, 1972)

lat d States p: Kdiwards

458 Fi2d 106) (oth Cir, 1972)

lowited States +. Emory

458 bz DONT Osth Cir, 1972) ‘

Voyitted States vv. Garittin

44 od 152 Cth Cir, 1972) s

Vopite d States vo. Wants

405) id WOGt 67th Cin, 1972) i

Vyitted States vv. lanN

461 Fv 482 (2d Cir, 1972) 7

Iwited States * | Por

458 Fido oth Cin, 1972) s

Voyit)ed States vc. Merrick

404 2 1ST Cloth Cin, 1972) $, 9

lpthe dd Stales vr. Stein

4565 Fd S44 (2d Cir, 1972) |

Vinited States “i. Wot

FPO PL TO (th Cir, WT) ‘

TABLE OF AUTIIORITIES (Continued)

STATUTES

ILS. SUPREME COURT RULES

Ios. Sup. CT Rule 1. 2s EOS.Cl A.

TEATUAL

14 (LS. Certiorari o 172 belly (1959)

14 ¢L0S.. Certiorari (12 (1959)

No.

au Cie

Suurewme Caurt of tyre

° >

Alnited States

January Term, 1975

JAMES BURTCHETT, Petitioner,

“i s-

THE STATE OF MONTANA, Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARL TO THE

SUPREME COURT OF THE STATE

OF MONTANA

”»

STATEMENT OF FACTS

Yeager. a chemist at Northern Montana College, tests

fied for the defendant. The substance of his testimony

Was that he could heat samples of unburned flooring tm-

pregnated with the asphalt base or smoke from the burner

used to thaw pipes and determine by gas chromatography

if the elements commen te gasoline were present ino the

impregnated flooring. Exeerpt= from the transcript indi-

eating Yeager’= qualifications and his method are contained

im Appendix A.

The deputy state fre marshall seot samples of burned

flooring from defendant's house to the Aleohol. Tobacco

and Firearins Laboratory of the US. Department of Preas-

urs. Midkiff. chemist for that laboratory, conducted tests

on these samples and determined that gasoline had been

present in the burned area by ineans of a form of gas

chromatography whieh does net involve heating the ma-

terial to be tested. Phe testified that this method is widely

accepted in the professional community of forensic ¢bom-

ists in the arson field and is very accurate. However, this

method cannot be used te detect the presence of volatile

petroleum distillate <ueh as gasoline ino material which

has been stored in the open for several months. He further

testified that in faet there is ne reliable scientific means

of detecting such volatile petroleum distillates. after such

atime period has lapsed and that Yeager’s testimony that

the same results could be obtained by the heating: method

was ineorreet: and bad resulted from Yeager’s ‘nck of

familiarity with Midkiffs method. Pertinent excerpts from

Midkitf< testimony. including bis qualifications, are set

ont in Appendix B.

The state’s expert Pro testified that the presence or

absence of asphalt, linolewm, and soot—ineluding soot from

traces of gasoline in the burner used to thaw the pipes-

on the flooring would not have affected Midkiff's test.

excerpts from Pro's testimony are contained ino Appendix

i

”

penne. (SM

ARGUMENT

I.

THE REMEDY OF CERTIORARE PS INADEQUATE

BECAUSE NO HOLDING BENEFICIAL TOO PEEL

TIONER WOULD RESULT FROM THis COURT

GRANTING THE WRIT.

Petitioner's allegation of prejudice arises from the

fact that he was not able te provide unburned flooring

for Yeawer his chemist to examine. Petitioner hoped that

Yeager’s testimony would show that the same clements

whieh Midkiff found ino the burned flooring were pres-

ent in the unburned flooring. Thereby petitioner hoped

to imply thatthe elements upon whieh Midkiff relied: te

reach his conelusion that gasoline was present could ac

tually have come from the adhesives and soot in the floor

ine.

However, both Midkiff and Pro testified that the pre.

ence or absence of the sootoand adhesives would not have

affected the results of Midkiff’. tests. The only means by

whieh Midkiffs test could be tiipenched was a similar

test in whieh heating was not used. By the time a charge

could have been filed against petitioner, that test would

not have been useful ins showing that gasoline had been

present in the unburned flooring because any gasoline

that was present at the time of the fire would have evap-

orated. And. as the Montana Supreme Court pointed out,

the sample which Midkiff used was still intaet and avail

able to the defendants should they wish to dispute Mid

kift’s basie finding that gasoline was present in the sample

of the burned flooring.

In other words, of all the substances alleged to have

been present in petitioner's flooring, only gasoline or white

vas evaporates at room temperature. Midkiff s expert

ment was condueted at room temperature and elements

found in gasoline were detected in the air surrounding the

flooring samples. Prom this he comeluded that) gaseline

or White gas Was present in the sample flooring. Defend

die

ant’s expert intended to east doubt on Midkiff*s testimons

by showing that clements common to gasoline were present

in unburned segments of the flooring. However, Midkift's

conclusion was based net solely on the presence of these

elements, but rather their presence ino the air at room

temperature Thus, Yeager could not diseredit: Midkiff*s

text by means of atest in whieh heat is used.

The Montana District Court aceepted Midkiff’s and

Pro's testimony to the effeet that the defendant would not

he able te impeach Midkiff. test using a heat test. The

Montana Supreme Court affirmed that finding.

Review on certiorari ix a iatter of sound judicial

discretion and a general rule for the exercise of that dis-

cretion is:

Where ne jurisdictional fact is in’ dispute. the

review on certiorari, as a general rule, does not

extend to the consideration of the probative force

of conflicting testimony, and. therefore, where

there is some evidence, the weight and suffie'eney

thereof as to the facts on which the determination

below was based. ordinarily will not be considered,

14 CLS. Certiorari “172 bat) (1939).

Out of thix rule two exceptions have been engrafted.

This court “will review the finding of facts by a. state

court where a federal right has been denied as the result

of a finding shown by the record to be without evidence

to support its or where a conclusion of law as to a Federal

right and a finding of fact are so intermingled as to make

it necessary, in order to pass upon the federal question.

to analyze the facets.” Fiske v. Nansas, 274 US, 380, 385-

O86 (1927).

In the present case there is ample evidence support-

ing the Montana District and Supreme Court's finding

of no actual prejudice, See Appendices Band C. In addi-

tion, if ix not necessary to analyze the facts to pass upon

the federal question in the present case. The Montana

courts’ conclusion of law, that a showing of cither actual

prejudice or intentional delay violates defendants Fifth

a

Amendment rights, is not intermingled with the finding

that there existed neither of these factors as a result of

the state's delay.

Furthermore, the Montana Supreme Court here inter:

preted United States ¢. Marion, 404 US. SOT CINTT) te

hold that a demonstration of either actual prejudice or

intentional delay on the part of the state will necessitate

dismissal of the prosecution. This is the interpretation

most favorable to the defendant. Consequenth. in request

ing thix court te grant certiorart and hold for the defend

ant thereafter, petitioner ix requesting this court to review

the factual findings of the Montana courts.

However, where neither of the eriteria of Mish are

met. this Court will aceept the Montana courts” findings

of fact. As to the interpretation of the Marion case. the

mest that could be expected from this court would be an

interpretation of Marion similar to that which the Montana

Supreme Court has already made. Consequently. no bene

ficial result for petitioner will come from the sranting of

certiorari in this ease. A general rule in the exercise of

discretion is that “the writ of certiorar: will not be granted

where the resicdy afforded will be inadequate or where

no beneficia’ resuh will follow.” 14 CLLS.. Certiorari, 12

(1939). Beeause no result beneficial to defendant will fol

low. the writ sheuld not be cranted.

THE MONTANA SUPREME COURT CORRECTLY

INTERPRETED THE JLIRION DECISION

IN THE PRESENT CASE.

Petitioner contends that this court should grant his

petition because of alleged confusion among the eirenits

ax te the ruling in Marion. Presumably his authority for

thix proposition arises from section Tob) of Rule 1 of the

Supreme Court Rules which states that a factor te be con

sidered governing review of certiorart is “Owehere a eourt

of appeals hias rendered a decision in conflict with the

decision of another court of appeals on the same matter.”

Mven if we assume arguendo that the courts of appeals

have issued conflicting opinions on the scope of Marion,

this is not grounds for this court to issue a writ of certiorari

heeause Seetion Tb) is intended to apply to courts of ap-

peals decisions and not to state court: decisions.

The eriteria for issuance of writs from state court

decisions is found in section Ta) of Rule 19 which sets

outoas a criteria “(wihere a state court has decided a

federal question of substance not theretofore determined

by this court. or has decided it ina way probably not in

accord with the applicable decisions of this court.” Peti-

tioner herein must rely upon the second part of section PCa)

and contend that the Montana Supreme Court has incor-

rectly interpreted the Marron decision, Defendant in’ se

contending quotes this court as follows:

We need not and could not now determine when

and in what circumstances actual prejudice re-

quires the dismissal of prosecution. Aetual pre-

judice to the defense of a eriminal ease may result

from the shortest and most necessary delay: and

noone suggests that every delay caused detriment

to a defendant's case should abort) ao eriminal

prosecution 2... CP )he rights of defendant te a

fair trial will necessarily involve delicate judgment

based on the clrenmestances of each ease. 404 US.

at 24-5,

Ne aetual prejudice to the eonduet of the defense

ix alleged or proved, and there is no showing that

the Government intentionally delaved to gain some

tactical advantage over appellees or to harass

them. 404 TUS. at ov6.

In his coneurring opinion Justice Douglas stated that the

courts tmust aveid “today’s qechanical approach to the

application of basie constitutional guarantees.” Marion,

0 Le

The message of this court in the Marrow case is clear.

Although the Justices disagree as te the Constitutional

basis for ther decision, they do agree that there ean be

=—~{- -

no set formula for determining when delay in instituting

prosecution should lead to disniissal of the prosecution.

They also agree that certain eriteria among others should

be used: aetual prejudice to the defendant. intentional

delay on the part of the state, and the possibility that the

defendant cannot have a fair trial This Court) intends

that the lower courts should use these eriteria on a ease

by ease basis to determine whether particular prosceution

should be disinissed. This is exacth: what the Montana

Supreme Court did in deciding the present case. [1's

final decision was that beeause there was neither evi-

dence that the state’s delay in’ instituting prosecution

prohibited the defendant from introducing evidence which

would have aided him in his defense nor an allegation of

intentional delay on the part of the state. the proseeution

need not be dismissed. The Montana Supreme Court was

correct in its interpreta om of the Warton ease and this

court should not grant certiorari for that reason.

THERE IS NO GENUINE CONFLICT BETWEEN THE

COURTS OF APPEALS AS TO THE INTERPRETA.

TION OF THE JLIRION CASE.

Although the dieta of various opinions imdicate that

the courts are not certain whether only actual prejudice

or actual prejudice and intentional delay require disinissal

of proseention, there is noe confliet between the rulings of

any oof the Courts of Appeals eases cited by petitioner,

In all but two of these eases cited by petitioner ino the

portion of his brief dealing with the confusion among

the cireuits., the court found that the evidence did = not

merit dismissal of the prosecution and in so holding found

that the defendant had failed to demonstrate even the re

quisite prejudice, See Uuited States o. Stet, 496 Ftd S44,

S49 (2d Cir, 1972): United States o. lawl, 464 Fi2d 483,

485 (2d Cir, W972): United States o. Dukow, 495 hitd ies,

Wop aod Cin, WT2): Vaited States vo. Kdiwards, 458 Bid

STH. SS2 Cth Cir, DOT2Z 0: Vited States o. Matt, 46) Pid

®

po | ae

1OGT, 1066 (7th Cir, 1972): United States o. White, 470 bi2d

WO, 175 (7th Cir, W972): United States 0. Emory, 408 bid

WONT, LAZO (Sth Cir, 19T2): Uaited States vr. Griffin, 4AGA4

Bivd W5a2. 1555 (oth Cir, L972): United States co. Dettenue,

468 Fivd Wal. da7 7th Cir, 1972): Cnited States 7. Daley.

454 Biv 505, FOS (dst Cir, L972): boiled States oo. Merrich,

464 FZ 10ST, WOOL (10th Cir. 1972).

In the remaiming two eases, both of whieh defemedzaut

cites for the proposition that some courts require a showing

of both prejudice and intentional delay. and whieh contain

language to that effect, there exist factors whieh reduce

the effect of that language so as to render it dieta. The

Lee ease is ao per curiam opinion. whieh petitioner quite

properly notes, Foaited States o. Ler. 408 Bitd o2 ooh

Cir, WT2). In that ease the Court of Npypeabs se merely

stated:

Appellent was tried only two months after he be

cane an “aecused.” and there is nothing te indicate

that the pre-indietnient delay was purposeful and

that appellent suffered substantial prejudice from

the delaw. Lee. supra at oo.

The jmplieation from the brevity and) per curiam: ne

ture of the opinion is that the defendant's contention=

were so devoid of merit that if was not necessary te reach

the question of whether actual prejudies only is enough

te oimerit: distnissal of the action or whether intentional

delay is alse required,

The Beitscher ease ix distinguishable from the present

case in that the defendant contended:

.. that the delay was inherently prejudicial eon

stituting a denial of their Fifth and Sixth Amend

nent rights to due process and te a speedy trial.

Vowitted States ov. Beitscher, AGT Fi2td 2690. 272.

(1th Cir, 1972).

Deenuse the defendant presented no evidence of pre

judiee, the Beitseher court was never foreed to face the

issue oof whether actual prejudice alone or actual prejudice

and intentional delay requires the disinissal of the prose

cution. As did the court in Lee. eitecher court merely para

phrased the language from this Court’. decision in Marion

Which ean be construed to require beth aetual prejudier

and intentional delay.

Consequently. ino ne case presented te the Courts of

Appeals dias the defendant been able te show aetual pre

judiee, Toappenrs that the courts are proceeding te tse

the Marion decision as a guideline and deetde caeh case

on its own particular faets. as did the Montana Supreme

Court.

An example is the language of the Tenth Cireait Court,

Whieh. in holding that the preseeution need met be dix

inissed stated: "We are convineed that defendant had a

fair trial and was deprived of ne Fifth or Sixth Amend:

ment rights.” Merrick, supre at VOL itis therefore un-

necessary for this court to intereede at this time.

IV.

iy Is NOT NECESSARY FOR THES COURT TO

REPORT A RECORD FACTUAL SITUATION TO

INTERPRET THE MARTON DECTSION,

Minally. defendant contends that this eourt has net

vet reported a record factual situation for the purpose

of determining whether or not such situations occurring

during pre-information delay is prejudicial te defendants

defense. Nevertheless, defendant tas cited ne less than

Senses in whieh fact situations have been presented and

decided upon by Courts of Appeals. In addition this court

has pointed out that with regard te pre-indietment delay

“the rights of defendant to a fair trial will necessarily

invelve the deliente judgment based on the etreumstanees

of ench ease.” Marion, supra, at 525. Thus. se long as

the general guidelines of the Martow exse are followed so

that the defendant receives a fair trial ne reeerd faetual

<itiiition In thix~ court ts needed. Dn fiet. suelo a case might

result in striet adherence te set rules whieh might tot apply

inoevery oense. This court) should met tatervene amtih it

—-10—

appears that further elaboration on the Marion case is

necessary to prevent prejudice te defendants’ rights to a

fair trial. At the present time, it appears the lower courts

are preserving those rights adequately using the guide-

lines set out in the Marion decision.

CERTIFICATE OF SERVICE

I, Robert L. Woodahl, Attorney General of Montana,

attorney for respondent, and a member of the Bar of the

Supreme Court of the United States, de hereby cortily that

on theNS® day of February, 1975, served three (3)

copies of the foregoing Brief in Opposition to Petition for

Writ of Certiorari on petitioner by mailing said copies

ina duly addressed envelope, with first class postage pre-

paid, to J. Chan tien, Attorney at Law. 52° Third Street,

P.O. Box 1076, Havre. Montana 59501.

Laat LOU torte

ROBERT L. WOOBAHL

Aitorneu General of the

State of Montana

Slate Capitol

Helena, Montana 59601

Attorney for Respondents

oe | ee

APPENDIX A

EXCERPTS FROM YEAGER'S TESTIMONY

The testimony of Yeager as to his qualifications fol-

lows:

“0,

.. ema professor at the college.

.

-

And what is yeur occupation?

. And what is your specialty at the college?

. Chemistry.

And do you teach chemistry at the college?

. Yes,

().

me i

().

. Lhave a Bachelor of Arts and a Master ef Arts.

You are an instructor there?

And whet are your degrees in chemistry?

And that’s in chemistry?

. Yes.

Now, how long have yveu been an instructor in chem-

istry?

. Well, my first full teaching pesition started in 1936

hut previously to that when T was an undergraduate,

I did teaching at the same time.

And prior to your teaching at the college, where did

you teach?

. | taught in several Montana high schools, Hingham.

Great Falls, out in Washington one vear.

. How long ago have vou been ap at Hinghain?

. Nine years ago.

. You taught chemistry there?

. Yes,

. In vour teaching of chemistry classes, is that general

organic cheinistry?

A. Mostly erganic. I also teach the introductory courses.

().

Vid in the course of your teaching duties, does that

Take in beth instruction through texthook and experi

temtal work tn lathes?

Yes.

In chemistry labs?

Yes.

You have dome thatpever the vears through vour

teaching career?

Yes,

And during veur teaching career. have vou become

familiar with the various different derivatives of

petrolemms which make up gasoline, diesel fuel. stove

fuel, distillates and that type of petroliphus sub.

stance

» Ves. DP have.

And have vou devoted any extra time in the course

of your eareer to the study of hydrocarbons ?

. Yes. DP have always been quite interested in the refin-

ing process and petroleum. TP have studied expecially

on that.

Sort of a hobby with vou?

. Sort of a sideline.”

(Tross, LI. Trost. 17)

The testimony of Yeager coneerning his method of

detecting the elements of gasoline follows:

“).

Mi

Now. You have been advised, have vou not, that Mr.

Burtehett destroved the remaining parts of his house

bs fire back. or last <1mer sometime?

Ves.

Now. if that house were still here available and that

flooring was still existent, would there be a way te

cheek the floor itself and the wood flooring to check

item way or anether through sampling te test it!

Ves. Tt could be eheeked at any time.

——_——*

().

A

().

eS

().

And if you were asked to do that, how would vou do it!

Well. PE would take a. probably first grind the wood

upto vet itoin finer form, get it in some kind of tight

container, Evacuate it te get the air out of it so it

wouldn't have the air problem and heat it ina furnace

of some type to volatilize anything om there which is

volatile and the gases which eame off that would be

injected inte the gas chromatograph and an electronic

recorder would record all components whieh were in

that particular fuclor that gas that came off the wood.

Seo that vewre saving here, taking the conclusions

Whieh vou have given the Court here as to the prob-

abilities of these petroleum compounds through sei-

entific tests. sampling and testing, vou could deter-

mine Whether or not cour conclusions Were positively

correct?

Well. To iiate to say positively because there is room

fercerror in-any analytic procedure but T would say

the gas chromatograph whieh we would get from that

would be fairly consistent over a series of samples.

~ Throughout the floor arena?

7 a

(Tr. 1.05-Tr.38. 1.21)

Now, based on your testimony and the testimony which

hax been recited to vou and Toamay further add that

subsequent to the fire of May 14. Mr. Burtchett. with

the consent of the City of Havre Fire Departinent

and County Fire Department. finally just) simply

burned down the rest of his house the latter part of

June. 1972. And. with that in mind. based on whit

vou have already testified to. if that house still

existed, would vou be able to go in and take tests.

samples of the floor and determine whether or not

the flooring throughout the floor whieh was exposed

to the asphalt compound and the soot smoke. contain

components which were common to gasoline?

Yes. There would be very ditth: problem there. Take

the sample and process it.

And based on the testimony whieh Pohave recited

toe vou, In your opinion. would. if these tests liad

been thle to have been taken. in vour opinion. weuld

-

e

witition,

components common to gascline have shown up in

your tests on the chromatograph?

If they were there, they would show up.

And based on the testimony which has been recited

to you, would these various components and the var-

ious soot smoke which i have recited to you and the

asphalt, would a aumber of these components which

were common to gasoline show up on the chromato-

graph?

They could come from any of the petroleum products

which had been subjected to heat?”

(Tr.392, 1.20 - Tr.393, 1.17)

APPENDIX B

EXCERPTS FROM MIDKIFE’S TESTIMONY

The testimony ef Midkiff as to his qualifications fol-

lows:

a

A.

Q.

A.

().

And what is your oceupation?

T am a forensie chemist with the Bureau of Alcohol.

Tobacco and Firearms. U.S. Treasury Department.

And what is your educational background?

I have a Bachelor's and Masters degree in chemistry

from the George Washington University. | am pres-

ently enrolled from another program leading towards

a Masters degree in Forensie Science, also, at the

George Washington University.

And did you have any background as a chemistry in-

structor?

. Yes. TP have served for the alternate vears, for the

past six years as an instructor in chemistry at the

George Washington University.

And could you tell as something about vour work

experience as a chemist? bes

. Upon reeeiving my bachelors degree 1 was employed

asa research chemist by the Arthur W. Sloan founda-

tion in Virginia, in Alexandria, Virginia. I was em-

ployed by the Atlantic Research Corporation. By

|

Malpar, Incorporated at the Space Flight Center in

Greenville, Maryland. By Vito Engineering Company

at the Godard Space Center in Greenville, Maryland.

By Marieta Corporation in Baltimore, Maryland.

Now, with the U.S. Treasury Department.

Could you explain just briefly what kind of work

you did with those companies?

I was, in most of these areas, most of the earlier

employment. | was employed as a research chemist.

Primarily, analytical! chemist and analyzing the num-

ber of different materials, which range from minerals

to contaminants ino space cabin atmospheres. Pro-

pellants, explosives. This type of material. At Mar-

eta Corporation, | was supervisor of the analytical

seminary for their lab corporation.

When did you join the erime lak with tie Alcohol,

Tobacco and Firearms?

Il came there in Mareh. of 1971.

And what is your position there?

lama forensic chemist.

And have you ever had oceasion to publish any works,

scientific nature?

Yes. [have seven or eight publications dealing with

a number of aspects of chemistry.

And have you ever published on this subject of gas

chromatography as it relates to aceclerant material

used in arson cases?

Yes, | have. There was an article which appeared

in the journal of the association of official and polit-

ieatl chemists.

MR. ETTIEN: If it please the Court, we will

recognize Mr. Midkiff’s qualifications.

Have you ever in your work in this laboratery you

are now employed by, had occasion to perform any

analysis on arson cases?

Yes, I have.

And approximately how many?

In 1970 or 1972, | worked on approximately four hun-

().

—16—

dred and thirty (450) eases invelving arson and fire

bonbs.

And in any of these arson cases did vou have oceasion

to do any analysix on any tile or linoleum: products?

Yes. | would estimate thatapproximately one sample

in ten submitted to our laboratory invelves some

samples taken, tile or Tmoleum flooring type ma-

terials.”

(Tr.78, 1.20- Tso, 1.24)

The testimony of Midkiff asx to the method used by

the Meohol. Tohaceo and Fireanus Laboratory follows:

- re

“().

\.

Yes. Your Honer, The method of examination used

was te take a small svring., hypodermic needle and

insert it through the lid of the can and remove a

sninple of the air in the en. Tf a Mammable liquid

ix present or. volatile liqtid ix present among the

components in the can. it vill also be present in the

vapor in the can itself. in the rubbish, becomes mixed

with the air in the ean. This sample ix injected inte

the gas chromatograph anloai chart pattern is ob-

tained te identify the particular material The chart

pettern obtained from the instrument is compared

with that of knewn mateials and one is able to

identify the material a= first. a volatile liquid ix

present im tine scmnple amd te identify the type of

volatile Hiqnld which was present,

(Tr 2D, 1.15 1.27)

Ix vour—-doees vour laboraiory perform many such

types of analysix and investigations in arson cases!

Ves, we do.

And how tansy have vou performed, personally ?

Last vear, 1972. DT examined evidence submitted in

connection with approximately four hundred and

thirty (4200) arsen and fire Lomb cases.

f= this tnethed vas chromitecraphy. ix this a ow iddedy

seceepotend snnet bined 2

Vou, it ix

().

().

().

().

a. | a

And in your professional community ?

. Yes, it is.

_ And is it an necurate method?

~ Yes. It is a very accurate method.

In your analysis of these specimens, did you have to

heat the specimens?

_ No. | did net.”

(Tr.224. 1.15 -Pr.225, 1.00)

Okay. Another littl: lypothetieal-— say there wis

three or four months lapse in time since the smoke

perineation of wood with, say with a volatile petro-

lew distillate, and if you were to analyze this with

or Jet me ask it this way: can you tell me of any

technique that vou might use to allow you to reliably

find and identify the nature of the flammable liquid

used?

Ifa sample has been. shall we say. stored ine the

open ——in other words, not in a sealed container,

based upon our experience and my familiarity with

the techniques. | know of ne reliable technique to de-

tect and identify a volatile petroleum distillate after

a period of say. several months has elapsed.

Have vou ever had occasion to experiment along this

line?

~ Yes. We have performed some experiments in our

laboratory invelving again, a very similar situation.

Just merely placing a sample of small amount of gaso-

line on a piece of wood and just allowing it to just

sradually evaporate. This material just) gradually

disappears and after a period of a week or more,

the amount of vapor is very small and essentially

impossible to detect,

Would vou say after two weeks vou could detect any-

thing?

I believe. if D reeall the experiment, after two weeks,

I don't believe we were able to detect any appreciable

Vapor using our technique.

Now. referring back to this affidavit that you have

acknowledge that vou read. by Francis Mayer, if suf-

().

—

ficient smoking conditions did exist, in your opinion.

would this deposit a significant amount of petrolemn

anywhere ?

1 would not anticipate any appreciable quantity of

material would be deposited. The material, the oils

and so forth are not particularly votatile and while

certainly, vou would get some soot deposit and cer-

tainly some anburned material, | would not anticipate

any situation wherein normal circumstances, vou

would deposit an appreciable amount of vour oil or

petroleum distillate.

And you have read the affidavit and vou have seen

it. How many times he indicated he used this device

and he indieated where the smoke went throughout

the basement area?

Yes, 1 have.

. Now, this evidently covers quite a few square fect

and knowing this. would vou still make the same

statement?

. Yes, | would.

().

Okay. Another liypothetieal, Assume oat in June

of 1971, now, this ix the time, ix it not, that You pe r-

formed the analysis upon the specimens in this ease?

. Yes, it is.

Q).

Assume that vou were to perform an analysis on the

permeated wood, if it were permeated and the asphalt

backed linoleum found in the arca of the Defendant's

home that were not burned. that with samples vou

analyzed, from burned holes in the floor. assume

that vou analyzed different parts of the floor that

weren't burned by use of wax ¢ hromatecraphy. Would

the test give you the same chromtograms as vou got

in the analysis that Mr. Habexer sent!

. New They would not.

. And why net?

Again, the low nature, the low volatility of any of

these heavier petroleum distillates. fuel oil, kerosene

type and the very low volatility of materials like

asphalt simply de net give vou suffieient vapor to

deteet amd analyze by the techniques we are using.”

(Tress. Lie. Tres, Lets

“().

().

().

().

Going back to the affidavit by Professor Yeager at

the Northern Montana College. vou stated vour famil-

iaritv with it?

.

. Yor,

Would vou turn te the second page of the affidavit

and read out loud the first paragraph of his con-

usion?

. “Based on his knowledge and expericnee, affiant ix

of the opinion that the gasoline components described

in said laboratory report could also have resulted

from the things deseribed in the affidavit of Francis

Mayer”.

Do vou agree with the conclusion!

. No. | de not.

Why don't vou?

- | think probably that the gentleman was not really

thoroughly familiar with the technique we are using

and really. how we go about making the examination.

In other parts of bis affidavit. he indieates that he

could heat these materials and so forth and | have

ne dispute whatever, vou know, with what he ix say-

ing. but | think he wasn't thoroughly familiar with

the technique we are using which does not invelve

the heating of these materials, Ut does not invelve

any extraction of these materials and se our technique

ix really not suitable to picking up anything that

does not have any appreciable volatility. The other

things that may have mislead hin somewhat ix the

wording of our report. Our laboratery report. |

indicated in ty laboratory report that benzine. hexane.

toluene, and Svlene were termed among the compen.

ents of the vapor That's truce. but these were mot

the only components in the chromatogram. They were

merely ones TP identified. This ix a standard mixture

Pouse for the identifieation of the components. These

were not the only component= present. Pe. of course.

did not have the opportunity te see our chromate:

grams and compare them with a chromatogram of

sasoline or naptha. This would be the reason T did

net agree with his conelusion. Tle was met really

familiar with our technique.

—

Q). The things that Professor Yeager and Francis Mayer

referred to, in their affidavits, would you say they

are volatile or nonvolatile?

A. Wf the things, the asphalt linolemmn material and this

kerosene material type fuels, they are nonvolatile

fuels,

(). And what vou identified were volatile?

\. Very volatile.”

(Tr.OO, 1.09. Trol, L227)

APPENDIN ©

EXCERPTS OF PRO'S TESTIMONY

The testimony of Pro as te his qualifieation follows:

"Q). And what is vour occupation?

A. Tama chemist.

). Who do vou work for?

).

A. bE owork for the U.S. Treasury Departinent. Bureau

of Aleohol, Tobacco and Firearms.

Is that what vou would calla crime laboratory ?

- ~~

It’s the setentifie service division. The erime labora-

tory ix a braneh in that division.

Q. 1 see And. would vou state te the Court and. the

jury some of vour educational background as far as

chemistry is concerned ?

A. Yes. My undergraduate work was at NYU. My grad-

uate work was at Columbia. Following school work.

about 1941. T went to work for National Lead Re-

search Laboratories. From there T went into. the

army. Upon release from the army. To worked for

the Manhattan Project and about 1949 LT went te

werk for the Treasury Department,

(. What degrees do vou hold in chemistry, if any?

\. Bachelors and Masters,

). Bachelors and Masters. In the course of vour «i

entifie work, have vou ever had occasion to publish

v4

any works in-oany of the scientifie works in any of

the seientifie journals?

Yes, While Iwas at the Treasury Departinent L pub-

lished, to date, sixty-three articles and | have con-

tributed a mumber of chapters to five texthooks in

the various fields of chemistry.

In June of V9TI. what position did vou hold in the

laboratory in’ Washington, DCL?

At that time Towas chief of the forensic braneh.

And is it true that at that time Charles Midkiff, whe

previously gave testimony in this ease. was under

your supervision ?

Ves, sir.

\nd have vou personally ever done any laboratory

Investigation in arson cases!

Yes, Efforts in this area were started about Your

years ago and this was in connection with the Federal

Government's aid to State and local govermments in

the aren oof fire bombs. bombings, guns and as a

result of this bill, we went into the arson work in

this department and this is primarily beeause of the

fire bomb situation whieh covered all types of arsons,

bombings,

Did your duties in June of 197i. at the forensic lab

inelude the supervision of analysis in arson cases and

material suspected in arson cases?

Yes. All the work that was earried out was under Th

Si pervision.”

(Tr402. 1.17 - Tr404, 1.05)

My eross-oNaimination:

Well

MR. ETTIEN: Your Honor, may | voir dire.

just a moment? Lo want to establish whether or not

he is qualified. He hasn't at this point, he hasn't, he

hasn't testified he is experienced ona chromatograph.

[don't want to make the State’s case but there is no—

THE COURT: Your objection is on lack of foun-

dation. | think that vou might explore that a bit more.

Sustain the objection.

Cd

1)

(). Have vou ever had occasion, personally, to operate

a gas chromatography machine?

A. | would like te point out, Pomight answer vou in-

directly.

MR. ETTIEN: Just a moment. bam going to

object.

A. Alright. To have. ves. 1 have.

MR. ETTIEN: Lunderstand. Mr. Pro. Tam not

trying to louse this ap. That ix not responsive te

the question. .

THE COURT: Very well He bas answered ves,

L believe.

(). Would you explain your use of the machine!

A. TP bought the first machine in the Bureau. Twix one

of the pioneers in this work and TP now have fourteen

machines ino imy department and a number of these

machines inour field laboratories, And. [have spon-

sored this tvpe of forensie application that is gas

chromatography and seientifie crime detection. This

came under my supervision. Basically our forensic

branch was the old researeh and development. We

just grew into a large forensie aren which now lias

been severed and a new research and development

branch set up but these machines are well known

to te,

Q. Are vou familiar then with the results ome would

vet. the machines, the chromatograph?

ya es

(Tr4Qg, 1.15- Tr 407, 1.20)

The testimony of Pro as to the effect of the asphalt

and soot on Midkiffs test follows:

“Q. Mr. Pro, Tam geing te ask you some hypothetical

questions. Thes Way Inert litthe involved hecntuse |

have te relate some of the testimony and evidence

that has been introduced in this ease. There bas been

testimeny given by Francis Buzz" Maser in this

case oon. thatoon various orcasions be went to the

basement of the Defendant’. home te thew Jel pres

Thiet breed deen Prezen by the wether ame te thers

().

().

oe has

=."

the pipes, he used a small sort of litth: tank heater

with a chimney and a wick and | think it has been

deseribed as an old fashioned kerosene heater. Are

you familiar with that type apparatus ?

Yes,

There has been testimony that what was burned in

that apparatus on the occasions le operated it was

kerosene, mavbe diesel fuel something of that mature.

And he testified that once he did not operate the ma

chine but be smelled it and thought be smelled that

vasoline had ben in there, and at any rate, when

operating this deview. he testified that the draft in

the basement of the building here that vou see a dis-

sram, eatised sinoke to whirl around. He said blak,

sooty smoke caused by inefficient burning of the

kerosene and diesel fuels in the apparatus and he

alse testified there was some testimony. | should sav.

that the type of linelenm that was on the floor. min

Moor of the house seemed to he the type that bad a

petrolenm base, Now. if we were to take samples

from that floor that hadnt been burned. just the

stnoke porinentod wood and we were to take some of

the asphalt based linclenm, and we were to put ina

container such as thix and were to seal it and without

heating if. at room temperature. insert ao syringe

and draw the vapors out, and we were te insert that

Vapor or sample inte a gas chromatography machine.

by the way. vou testified that vou are familiar with

that deview!

. Ves,

We were to insert that type of sample inte a gas

chromatography machine, what type of chromatograph

would vou get?

. Well—

ME. ETTIEN: Your Honor. may | voir dire.

just a moment? 2.0”

(Tr40s, 105 - Tr 406, 115)

Mi. ALTMAN: Now, let's go back to the ques

tien that we were trying to get answered. You recall

that Poasked vou- deseribed the wooden floor that

possibly had been permented with smoke from this

().

par.

inefficient burning apparatus and inside the appara-

tus were kerosene and possibly diesel fuel and then

we had a petroleum based linoleum. If you were to

take samples of that smoke permeated wood and,

were to take particles or picees of the asphalt based

linoleum and put it in a coffee container such as |

have here and put a lid on it and seal it and inject

through the plastie lid a liypodermie syringe and

withdraw an air sample from inside, now, this is

all without heating the contents or the can, normal

room temperature, take that air sample that you

would withdraw and inject it inte a gas chromato-

graphy machine, what would vou get from this?

. Well—

Qn vour machine?

. Well, from soot on wood and linoieum and whatever

other materials vou may have deposited from the

burning, results from combustion, vou would get, in

all probability, just a straight line. You wouldn't get

any volatile materials beeause first of all. linoleum

ix not volatile, By that. TP imean it doesn’t evaporate

like gasoline beeause if it did. in’ six months vou

wouldn't have any linoleum. It would be evaporated.

It’s just not the nature of the product. If vour wood

had seot on it, soot does net evaporate. You just

wouldn't get anything. The whole principle behind

vas chromatography is measuring something that is

volatile. Something that evaporates from the bulk

of the material that is laid down. Now, gasoline is

another thing. Tf vou place gasoline in a ean. much

of that gasoline is ina vapor state or goes into equilib-

rium with the liquid. So, the liquid and the gases are

in equilibrium within that ean as far as it can't escape

from that ean. A certain percentage of that gas goes

into the gas phase and that ix what vou siphon out and

of course, vou get a gasoline chromatogram,

If we were to take the situation as it does exist. the

Fire Marshal removed samples from an area of the

Defendants floor that had been burned. a hole was

burned in the floor, Te cut samples of the burned

in the floor, He cut samples of the burned charred

wood. He put it in this container and he sealed it. And

he sent it to vour laboratory and if vou were to receive

this and onee again stick a hypodermic needle in there

opt,

and withdraw let me go back. My hypothetical. If

the burned area of the floor, it wouldn't be saturated

with gasoline or a volatile, if vou were to put your

hvpodermie needle in there and withdraw an air

sample and inject that into vour gas chromatography

machine, what would vou get?

. You would get a resultant chromatogram which would

he, that of gasoline. Now, the very funetion of the

machine.

MR. ETTIEN: Just a moment. The witness has

answered,”

(Tr4lO, 1.25 -Tr4l2, 1.23)