SLED’s faulty gunshot residue tests delaying some prosecutions around South Carolina

Possible errors in nearly 227 gunshot residue tests done in State Law Enforcement Division labs have caused the agency to launch a review of those tests, delaying some criminal prosecutions around the state and calling other cases into question.

All 227 cases, from January 2015 to November 2016, are the work of one analyst, Whitney Berry, who resigned from SLED in February after the flaws were discovered, SLED officials said. She could not be reached for comment. During her SLED career, which began in 2013, Berry testified in court about gunshot residue findings in 39 cases.

Based on the review so far, SLED officials stressed that the key findings in nearly all of Berry’s tests – which show whether someone’s skin or clothing tested positive for being around a gun being fired – are unlikely to be changed.

“There were no cases where it showed positive where it was in fact negative,” said SLED Chief Mark Keel in an interview.

Police agencies around the state depend on SLED’s labs to process crime scene evidence. Due to the near quarter-million-dollar cost of the machine used in the gunshot residue tests – which doesn’t include an additional $25,000 a year for maintenance and service – SLED has the only gunshot analysis lab in South Carolina.

SLED said it discovered the problem in late November, during a routine review of Berry’s work by another agent.

The agency estimates it will take at least another month to finish the review because of the time-consuming verification involved.

The specific problem is that from January 2015 to November 2016, Berry sometimes underreported the number of GSR particles that were actually there, said SLED lab director, Maj. Todd Hughey.

“It appears that she was doing incomplete work,” Hughey said.

Scientists such as Berry, who can expected to be grilled by defense attorneys in court, are supposed to do a thorough job, to meet accepted scientific standards and to be able to defend every aspect of their work in court, Hughey said. If a defense attorney can show a jury that an analyst has misreported data in any way, that can undermine a prosecutor’s case, he said.

“We have not found any issues where she fabricated data or falsified data,” Hughey said. “We didn’t have a rogue chemist.”

SLED has notified all state solicitors about the problem, who are in turn notifying criminal defense lawyers in their respective circuits.

‘It’s a big deal’

Although SLED is being open and answering questions about what happened, some say the state’s top law enforcement agency has suffered a blow to its reputation.

“How do you have faith in a lab that has failed in such a massive way? It’s a big deal,” said Fielding Pringle, chief Richland County public defender. Her office defends indigent defendants.

Pringle had a case in February in which a defendant pleaded guilty, and Berry was the gunshot residue analyst. Pringle won’t comment on what she might do with respect to that case, but said that in general in flawed gunshot residue cases, “People will be looking into re-opening cases.”

Keel said SLED is informing everyone about the mishap and will have the results of its audit of the 227 cases examined by a national law enforcement accrediting agency.

“Would we have hoped it wouldn’t have happened? Absolutely.” Keel said.

“You do your best with all the systems you have in place to try and make sure these type things don’t happen, but when they do happen, you acknowledge them and go about fixing them. That’s what we’re doing,” Keel said.

The Richland County public defender’s office also represents Arkeem Breeland, 23, who was charged with attempted murder in a January 2016, domestic disturbance case. Richland County deputy Chris Bagby was unhurt in the incident; he was shot at and missed, police say.

Gunshot residue was found on Breeland’s hands, and that analysis was done by Berry, Pringle said.

Breeland’s trial has been delayed because of the gunshot residue issue.

Hughey couldn’t say exactly why Berry did what he described was a less than adequate job. He speculated that perhaps she believed once she determined that one particle picked up by SLED’s electron microscope was a gunshot residue particle, she thought she didn’t need to look for additional particles. Or perhaps Berry felt rushed and wanted to get on to other cases, he said.

How it works

Gunshot residue evidence is a part of many high-profile criminal cases. It consists of microscopic particles sprayed outward when a gun is fired.

Determining whether these particles picked up at crime scenes by gunshot residue kits are in fact gunshot residue is a time-consuming, tedious process.

It takes place on the third floor of a SLED’s five-story crime lab, located at the agency’s headquarters on Broad River Road, north of downtown Columbia. Gunshot residue analysis is just one of dozens of scientific departments in the 65,000-square-foot building.

First, samples of suspected gunshot residue are processed in SLED’s $223,000 scanning electron microscope. That can take from four to 20 hours. Then, the analyst has to review computer-generated data, picking out the molten spherical forms that denote gunshot residue.

After that, it might take several hours more to generate a report, recording what the analyst has seen and transferring the result to paper. Often, the analyst will discuss findings with prosecutors or the law enforcement agency that sent the gunshot residue samples to SLED.

“It’s not a quick, analytical process,” Hughey said.

Although it is often not the only evidence pointing toward guilt or innocence, juries often want to hear if gunshot residue tests were done, law officials say.

“Gunshot residue analysis is very important, particularly in homicides and officer-involved shootings. Juries watch this on TV, and defense attorneys know this,” Richland County Sheriff Leon Lott said.

“If you don’t have it, that’s the first thing a defense attorney is going to ask you on the stand – why didn’t you do this?” Lott said.

Lott’s office has its own top-drawer lab but has to depend on SLED for gunshot residue tests. The sheriff’s department has three cases handled by Berry that are undergoing review.

Devil is in the details

Gunshot residue evidence has limitations.

While having gunshot particles on a person’s hands may mean that the person fired a weapon, it may also mean he was near a weapon when it discharged or that he handled a recently fired gun. If crime scene samples don’t show gunshot residue, that doesn’t mean someone hasn’t fired a gun because the person simply could have washed or wiped their hands. Gunshot residue sticks to clothes longer than it does human skin.

“I don’t recall a case where gunshot residue was a make or break,” said 9th Circuit Solicitor Scarlett Wilson of Charleston. “Because it is so fragile and so easily transferable, it’s generally not a high-value piece of evidence.”

First Circuit Solicitor David Pascoe of Orangeburg said, “Very seldom is gunshot residue the most important part of any case.” But often, the amount of gunshot residue on the victim and his or her clothing helps establish how far the victim was from the shooter, said Pascoe, who has prosecuted numerous shooting cases.

“It can be helpful, but I’ve never viewed it as crucial,” 11th Circuit Solicitor Rick Hubbard said, adding that sometimes his office has a shooting case where no gunshot residue turns up.

Hubbard said SLED is currently reviewing gunshot residue evidence in the January 2015 shooting of West Columbia police officer James “Trip” Holland, who was attempting to serve a warrant when he was shot. The suspect, William Kernan, faces several charges, including attempted murder.

“It’s a serious case,” Hubbard said. He said he doesn’t expect a review of the gunshot residue evidence will hurt his case, but he is waiting on results.

Fifth Circuit Solicitor Dan Johnson, whose office has several gunshot residue cases undergoing SLED review, said his prosecutors want their cases “based on sound evidence and grounded in accepted scientific methodology. To that end, we are still thoroughly examining the scope of the issue and what effect, if any, it will have on current and former prosecutions.”

Defense attorney Joe McCulloch, who heads of the South Carolina branch of the Innocence Project, a national group that investigates wrongful convictions, has been in touch with SLED.

“I have reached out to Chief Keel to offer our assistance in the ongoing review,” McCulloch said. “The more transparent this process is, the better.”

Keel said Friday he looks forward to meeting with McCulloch and explaining what SLED is doing.

This story was originally published May 6, 2017 at 4:32 PM with the headline "SLED’s faulty gunshot residue tests delaying some prosecutions around South Carolina."