Crossposted from Ticktocaniowoc by Needlessthings to refute the absurd claims by poorskills............. Enjoy he read Yeti.
An EDTA Test for the Fraudulent and the Fanciful.
(WARNING: This is an extremely long post. Lots of technical mumbo jumbo, and due to the length of the post, I am not positive that everything I have typed up is adding up as clearly as I hope. My apologies if this was a big long mess and waste of your time.)
The Blood in the RAV (Steven's Blood)
Myself, I have never had a problem believing Avery's blood in the RAV was planted. The shape of the smear on the dash was pretty much enough for me, but add on the shade or appearance of the blood, the lack of fingerprints in the car, the lack of forensic evaluation done on the objects used to camouflage the car, and, presumably, the lack of blood on the objects used to camouflage the car. As far as I am aware, there was not much forensic analysis done around the outside of the RAV4, certainly not as much of Avery's blood as you'd expect; no blood drips found anywhere leading away from the RAV to corroborate Brendan's confession.
But even with all those little issues, is that enough to say the EDTA test was cooked up in order to satisfy the needs of the State? I do not know, the more relevant question, were the results misrepresented to the jury?
Yes. Hell yes.
Was the protocol, method, or result ever validated?
Nope. No way - no how. The protocol, method and results were never even validated by the FBI let alone validated by independent peer review.
Without those ^ three things validated, the implications of the results, and the results themselves, are not even accurate and IMO should not have been admitted as evidence at trial.
I know many here know, but I am not sure how many casual viewers of Making A Murderer would have caught just how much the EDTA was messing with the defense in the lead up to trial. It is a frustrating thing to imagine.
In the words of Dean and Jerry, it is clear the state was seeking not just to ambush the defense, the timing of the test results also points to a legal tactic of trying to disarm the defense before the state's ambush.
The defense not only had no idea the test results were going to be ready for trial, they were never ever given a fair opportunity to do the testing IMO. They were under the impression neither side was going to be permitted to have the swabs tested in the first place as a test would not be ready for trial, so to suggest that they should have sought out independent testing when the court had ruled any such test would essentially be useless for trial, is IMO, an extremely unfair characterization that they failed in their legal responsibility to get the blood tested.
From The Defendant's Motion for a Continuance to Conduct EDTA Testing
Steven Avery does not have the money to fund such a project. Mr. Avery himself is destitute, other than his personal effects and a couple of used cars and used snowmobiles. His lawyers long ago expended all available client trust moneys on Mr. Avery's defense and have more than earned their own fees' even before trial started. Hurley, Burish & Stantory s.c., in particular has dipped deeply into its own funds for out-of-pocket expenses such as expert witnesses' investigatory and necessary trial expenses. Buting & Williams, S.C., also has shouldered some trial expenses, beyond available funds from the client. Mr. Avery will submit, in support of this motion a sealed (but not ex parte) affidavit of Dean A. Strang, detailing the financial status of the defense."
The balance of power, influence and wealth between the defense and the State is off just a little bit.
Perhaps most difficult, [as the EDTA test results were admitted] the defense would have to obtain reliable data on environmental degradation of EDTA. Then the defense will have to find an academic researcher or private laboratory that has an interest in advances in this area. In effect, the defense will be seeking someone who might peer-review the FBI's innovative work, out of professional interest or competitive incentive, and either validate or invalidate the FBI's new protocol. This likely will be expensive.
The defense ^ pointing out they should not have to bear the burden and pay to validate the test.
Indeed even though the protocol was new, and even though neither it nor the results were validated, we all know Lebeau eventually wanders into absolute fantasyland territory and insists it is reasonable he knows what was in the untested RAV 4 swabs.
Despite the disarming and the ambush, DS and JB had all bases covered in a remarkably short time. They were ready for any angle.
I know the case Cooper v. Brown has been discussed to death here but in the interest of fully explaining Dean and Jerry's position concerning the EDTA results, I am going to spend a little tiny bit of time in on it before I go through Jerry's evisceration of Marc.
The following is a decision for the case, Cooper v. Brown, wherein a federal judge said,
"[T]he testing process for EDTA took more than one year because of the lack of any standardized protocols for testing."
"More significantly, there are no established scientific standards for interpreting the significance of levels of EDTA found in any particular sample."
What does all that mean? Why would DS and JB themselves choose to bring this case up?
Because get this... The defense actually expected, if the EDTA test performed by the FBI was valid, the defense expected molecular amounts of EDTA would have been detected in the blood! Even if the blood was from Avery's finger!
This assumption is due to the chemical becoming increasingly more commonplace in the modern world. Many types of food and condiments, general hygiene products as well as products meant for automotive care contain EDTA in much larger quantities then you would find in a purple top tube.
Think about it, this was actually a risky argument for the defense to bring up IMO. Although the logic and science behind the argument are completely true, by presenting this opinion the defense was essentially giving the prosecution a bit of slack.
How? By pointing that ^ out the defense assumed Kratz would argue to the jury, if EDTA was found it was not because the blood was planted, it is because Avery had trace amounts of EDTA in his blood stream due to nothing more but common exposure to the chemical. Of course DS and JB eventually learned Kratz did not need to take that route. They eventually learned Kratz seemed extremely confident the test would come back negative. Before they learned that, however, Dean and Jerry, fantastic lawyer's they were, had to preempt Kratz' possible argument - the argument that if found, the presence of EDTA would not have been indicative of planting.
That is why the defense mentioned Cooper v. Brown. And yes I am aware that in that case, the issue with the EDTA was that it was a laundered shirt ****ing with the results, but the opinion the court gave in reference to the EDTA testing process in Cooper v. Brown remains applicable:
"...there are no established scientific standards for interpreting the significance of levels of EDTA found in any particular sample."
This ^ was what DS and JB had prepared as a rebuttal in case Kratz argued that the presence of EDTA was not significant, and wouldn't suggest planting.
If Kratz said that, the defense would have said, well hang on a minute, a quantitative test can tell is if it was significant and whether or not it would suggest planting.
The main point being, the defense argued without a quantitative analysis of the blood from the vial this test would not be conclusive or favourable to either side no matter the result.
The only thing the FBI could do to attempt and validate their own results, was to perform a quantitative test.
Again, just a reminder, the defense assumed there would be molecular amounts of EDTA in blood from a bleeding finger. I am not suggesting that Avery's freely bleeding finger would for sure have had molecular amounts of EDTA, * *I am just attempting to demonstrate the logic behind the defense arguing for a quantitative test.
Putting it simply, if the defense had their way, the FBI would have had to determine the difference between the quantities of EDTA present in, 1) smears of blood known to have come from the RAV, and 2) drops of blood known to have come from the vial, and 3) drops of blood known to come from a freely bleeding finger.
(We will learn later it was fruitless and that the FBI barely quantified anything)
If EDTA had been found in the swabs from the RAV a quantitative test would have been one way to 'separate the results' if you will, so that everyone would have known for sure, thanks to the quantitative test, that the quantity of EDTA in the swabs was or was not consistent (when adjusted for volume) with the quantity of EDTA from the vial.
Understand?
Keep in mind I am dealing with a lot of 'ifs..'
Right now I am focusing on a time before the results were known.
The defense themselves argued that even if EDTA was detected, they would still need to find out the significance of the level of EDTA detected in relation to the level of EDTA in the vile.
So to examine both sides of the coin...
If the results of the quantitative test, when adjusted for volume, revealed a consistent reading between the two samples, the the FBI would have had to say the blood came from the vial and was probably planted, because if the quantitative results revealed the amount of EDTA in the swab to be consistent with the amount of EDTA in the vial, that would suggest planting.
On the flip side of the coin...
If the results of the quantitative test, when adjusted for volume, revealed a noticeable difference in the concentration of EDTA in the separate samples, the FBI could have come to the reasonable conclusion that the blood was not planted.
This did not happen. EDTA was not detected at all right?
BUT...
Without a quantitative test the FBI does not know if EDTA was present in quantities below the limit of detection!!
So the results were misrepresented to the jury, and IMO it was knowingly done.
The FBI test was not calibrated to quantify the amount of EDTA detected in the swabs or the vial. The test was only calibrated to detect whether or not EDTA was present in an amount greater than the apparent limit of detection and so no one was able to say for sure if the EDTA was in the swabs below the limit of detection.
That ^ is a pretty big deal. Keep it in mind, the lack of quantification. It comes up later and it is a huge part of why this protocol would never and could never have been validated. We all know (Thanks to Cooper V. Brown) that at the time of the Avery trial there was no publicly available protocol for conducting such [quantitative] tests.
I'm getting a little long in the tooth here and I haven't even started! Oh boy.
The main point to take away from everything above is the defense was ready for the test to come back positive, but they also assumed that the state would still be arguing it was not proof of planting due to the chemical becoming more commonplace.
This is excellent lawyering here folks, and I am sure the defense was furious and using that fury as motivation. Dean and Jerry were getting ****ed so hard they might as well have walked up to the stand in front of everyone and said, "I give up!" And bent over. But no, they prepared for every angle, they were ready for any argument concerning the presence of the EDTA.
Now that I have primed you with some information, time to read the evisceration of ML.
His testimony during the trial is really something to behold:
Buting's Cross-Examination of Marc Lebeau:
Jerry Buting: And this particular section [in the protocol] is headed limitations. It's telling you, you know, hold on, there are some limits to this we have got to consider, right?
Marc Lebeau: Correct.
JB: All right. Your protocol, then, that was developed on February -- or issued on February 15th of 2007, for this case only, it's important that whoever do the test, follow the protocol as written, correct?
..GULP..
ML: Yes.
The protocol issued my Mr. Lebeau is marked, "Revision: 0" Meaning that the protocol is a first draft. The protocol was barely validated by the FBI itself, and not at all by independent peer review.
JB: And that you are not supposed to just adjust one procedure differently than what's in the protocol?
ML: You are allowed to do that as long as you document the fact that you did make a deviation to the procedure...
(How convenient. I wonder who would have to sign that deviation?)
ML: ...* it simply just requires a notation in the notes with approval by the examiner and myself,* and in this case, approval by me.
(Oh.. Sure. That's fair.)
JB: Okay. So on the very first time you used this protocol, you started changing the procedures around?
ML: No, sir
(Actually yes, sir.)
A bit later Jerry exposes a major issue with the EDTA protocol.
JB: And the difference, just so we're clear, is that protocol is designed to see if there's any level of EDTA that can be detected under your -- above your bar, your limit, right?
ML: Yes, that's part of it, yes.
(Remember at the beginning of the post all of that talk on quantifying the test results? It is coming into play now. If you are getting confused by the cross examination, go back to the top of the post to review the significance of a quantitative test.)
JB: But the protocol is not designed to allow you to actually fix a number and say this is 50 micrograms or whatever, right?
ML: It's not validated to provide an accurate number on any measurement we make where we put a number on it.
This is a huge issue. Identifying the presence of EDTA in the vial without knowing relative quantity is not that much of a help. Sure it confirms what we already know, but it does not illuminate anything else.
In order to validate the result, a quantitative test should have occurred. This could never have been done even with the protocol presented because (surprise surprise) ML did not quantify the EDTA in the vial, only confirmed its presence.
Without quantification of the blood in the vial it is VERY POSSIBLE that EDTA was present in the swabs but present in a quantity unable to be detected by the LOD. Without knowing the quantity of the blood from the vial, not much can be theorized about what the suspected level of EDTA in the swabs would be.
JB: Okay. Mass spec instruments, though, you can set up a protocol and they are sometimes used to actually quantitate, right?
(Mark's Inner Voice: oh! shoot **** he knows about Mass Spectrometry! Damn he's good)
ML: Yes, they are.
JB: But you didn't use it -- you didn't use the instrument in this type of protocol to do that, right?
ML: That's correct, we did not.
The FBI should have jumped at the chance to do so as a way of adding more credence to their results. Of course it would have taken more time.
JB: And you did not, for instance, when you tested in the blood vial that had Mr. Avery's name on it, you didn't quantitate what level of EDTA was in the tube, right?
This ^ is why even the LOD is not valid. First off, without quantifying the EDTA in the vial he can not say for sure if his LOD would have been sufficient. Plus there are way to many variables with the different detection methods used to find said limit:
The 1 micro-liter test came back as negative, but it then came back positive when they applied the blood directly to the instrument without drying it on a slide.
The 2 micro-liter test result was also up in the air, some say it could have gone either way, but ultimately was reported as a negative.
So the 1ul, the 2ul, and the 5ul measurement. They are not consistent readings. The FBI had to change the method of application to get the 1ul reading and the 2ul reading was not even a sure thing, so we are left with a 5ul I guess.
That ^ is the limit part of the LOD. It is very possible EDTA was in the swabs, but only present in quantities not able to be detected by the LOD. Without someone actually doing independent peer review, or without quantifying the levels of EDTA that were in the vial, no one can say for sure if the LOD was valid. All we can say is that the test did not detect EDTA, and yes, the test could no doubt detect EDTA, but it could also no doubt miss it and reveal a false negative.
Ok confused? Good. Moving on.
Really there is so much wrong with this test it boggles the mind it was ever admitted as evidence. Another sign of Willis being, if not corrupt, certainly extremely unreasonable. Way to go Willis. Way. To. Go.
Remember, the defense thought there would have been detectable amounts of EDTA in the blood from the car either way. Finding EDTA in the vial or in the drops and smears of Steven Avery's blood on Teresa's car, is not helpful to either side they argued, and again, this is why a quantitative test would have come in handy, and why the FBI should have known the exact quantity of EDTA that was present in the vial:
Q. You didn't -- As per the protocol, you didn't express any kind of opinion in the report about how much, if any, EDTA was detected in the vial from -- of Mr. Avery's blood, right?
A. No, I did not
Jerry is hitting this point ^ again and again because he is hoping the Jury will understand the significance of it.
The test was not quantitative in nature and the validity of the protocol was never established. Could the test detect EDTA? Yes, no doubt. Could it generate a false negative result, when in fact EDTA was present? There is no doubt - YES IT COULD.
JB: One of the things that was kind of really unique about that purple vial, it's 11 years old, right?
A. Yes, that's a correct statement.
11 years old. That is a long time. Time is a variable. What was going on at a molecular or atomic level in that vial? Marc sure as **** doesn't know.
We definitely could not expect the EDTA to behave the same out of the vial as it would behave inside of the vial right?
We could not expect the EDTA to be as effective (as a preservative) if it was removed from it's 11 year controlled environment, reduced drastically in quantity, and planted in the RAV and exposed to various elemental factors.
Now with that ^ in consideration, things get really interesting: Another variable here is the lack of data establishing the rate of degradation of EDTA in different environments.
Again, EDTA is so common in the environment it has even become an environmental hot topic. Does EDTA degrade fast enough so that after it is washed down our drains it will not build up and cause health issues or negativity effect the environment?
We know that, like everything else, EDTA degrades, but the speed of degradation is what would help answer the above and or validate the test results in the Avery Trial. No real effort was put forth by Lebeau to do so.
When reading the following, keep in mind: Stability / Lack of Stability = Speed of Degradation.
JB: Okay. And we talked a little bit -- or you talked a little bit about this, I think, with Mr. Gahn, but the whole question of the stability or lack of stability of this chemical, EDTA, is an issue of research, correct? In the scientific community?
ML: I don't know how much it's researched these days. It's -- I think it's very well documented. I don't know how much ongoing research there is on it.
Why the **** not?!
Sigh.
Oh well. Excellent - and complicated argument coming up from Jerry.
JB: Well, you mentioned that it's a concern that some environmentalists have that this chemical could be building up in our water and our soil, right?
ML: That's correct, yes.
JB: On the other hand, manufacturers who include this chemical in their products are countering that by saying that this a biodegradable product and will ultimately be dissolved and not be a problem?
ML: No, sir, I don't believe that's true.
Even though he doesn't 'know how much ongoing research there is on it.'
Idiot.
JB: So are the manufacturers telling the environmentalists that you are right, this drug [EDTA] is just going to build up in our soil and water forever?
Of course not. What Jerry wants to get across is that everything degrades eventually. Once the Blood / EDTA is reduced in quantity the speed of degradation would increase. This is true for any chemical / substance.
ML: I don't know that the manufacturers are saying anything to the environmentalists.
Even though Jerry just told him what they were saying!
And in reply ML said he did not believe it was true!
JB: You do know, though -- Let me just step back for a second, you do know that EDTA is biodegradable eventually, correct, or is that the wrong term?
ML: That's the correct term, the research suggests that it is not very biodegradable.
Again, obviously Jerry knows this is an important point, like everything else, EDTA degrades. We just don't know the speed at which it degrades. We need to know at what point the EDTA would have degraded beyond the limit of detection presented.
JB: But the research also suggests that it can be broken down, correct?
ML: Extremely harsh conditions, yes.
And he is saying this ^ even though he is not aware of any of ongoing research or debate in the field.
Just clearing that up.
Harsh Conditions For Large Amounts
[Below are multiple excerpts from six separate studies concerning the degradation of EDTA.]
I have taken some creative liberties copying and pasting the studies together by editing some confusing information out, only to highlight what in each study was the main factor in degradation. Also, I am not suggesting any of the below excerpts are proof that the EDTA would have degraded beyond the LOD in the time frame given. The below are only to show that yes, obviously, EDTA can degrade, and no, actually, extremely harsh conditions are not always required, especially when dealing with laboratory amounts of the chemical.
In waste water, over 90% of EDTA was degraded within 3 minutes when temperature was 60 degrees Celsius.
'UV treatment without peroxide yielded 100 % degradation of EDTA in 40 minutes of reaction
A method for the removal of (EDTA) at room temperature and 1 atm is demonstrated using a recently developed form of O2 activation, reactive oxygen species are generated, resulting in the degradation of EDTA.'
"The rate of photo-degradation of (EDTA) was analyzed in humic lake water and in distilled water using exposure to sunlight, and in the laboratory using lamps emitting UV radiation."
'In this review, the applications of EDTA and its behavior once it has been released into the environment are described. At a laboratory scale, degradation of EDTA has been achieved ... the only significant process of removal of EDTA [in the surface level of a body of water] is the possibility of photolysis by means of the action of sunlight.
'The fate and behavior of the different complexes may vary considerably. The iron(III) EDTA complex is the most liable because it is very photo-active .... EDTA dissolved in water and irradiated with sunshine.
Oxygen. Moisture. Ph level. Bacteria. Light (all frequencies) - These all play an important part in the degradation of any chemical.
We know EDTA degrades in much, much larger quantities than one would find in the vial, and certainly in much, much, MUCH larger quantities than you would find in the blood taken from the vial and placed in minute amounts around the RAV 4, as Buting put it, "In any environment in which EDTA is exposed, in minute amounts, to air, heat, cold, precipitatiory background pH levels, electrical conductivity, oxidation, all manner of light, bacteria or other simple environmental organisms."
OK. Where were we again?
Oh yes. Jerry is getting ready to take down Marc...
JB: Well, waste water treatment plants have been doing studies where they determined that if you increase the PH in the treatment plant, you can break down EDTA quite readily, right?
ML: Again, very harsh steps.
JB: Harsh in your opinion because you have never actually done of any of those studies, right? You understand the question?
ML: I do understand the question.
JB: And you haven't performed any experiments to break it down, break the molecules apart?
ML: I have not performed any such experiments.
Obviously this is an issue. One I hope will be addressed come MAM Season 2.
Marc, in order to climb out of the hole he has been digging, brings up a little test he did last minute, with two year old dried blood on spot cards. He uses this to say that, 'Hey, you know ... EDTA seems pretty stable. I did my research on how whether or not the chemical would have degraded.'
But Marc is Marc and Jerry is Jerry. Read below and see Jerry get the better of Marc. Buting knew this little bit of bull**** with the spot cards was coming. He even lets everyone know he knew it was coming and the obvious reason that Lebeau ever decided to even glance at the spot cards two days after he issued his official report for the case:
JB: It's a little study that you are talking about in which you tried to see if -- if you could still detect EDTA in some spot cards, that were 33 months old, is something you did last week, right?
ML: That's correct, yes, last week.
JB: And you actually did it on February 28th?
(You can damn well bet Marc knows exactly what is coming)
ML: If I can refer to my notes.
JB: Go ahead.
. . . . .
ML: Yes, sir, that's correct, February 28th.
JB: Now, on February 26th, you issued the report in this case, right?
ML: That is correct.
JB: And so when you issued that report, you had done no study whatsoever of whether or not EDTA would be stable enough to be found in some old bloodstains or blood vial, correct?
ML: Yeah, I had not personally done it, but it was in the literature.
Oh yes, the ongoing literature that he hasn't validated himself because he was not at all aware of it.
Again, he is trying to imply he does know a thing or two about the speed of degradation. Fortunately Jerry was ready for him. Jerry has been waiting patiently for this moment.
JB: Okay. So -- I'm glad you cleared that up. So, then, this -- this study that you did on stability was because the defense attorney in the case had pointed out to you that something might be lacking in your ability to express an opinion to the jury about how stable EDTA was or was not; would that be fair?
ML: No, that wouldn't be fair at all, sir.
JB: Okay. Well, we'll let the jury draw whatever inference they want from that.
Please Laura and Moira and Netflix Executives, please release the entirety of the trial on Netflix.
JB: Let me just talk about the timing of this for a second. If you had done this test, two days after you issued your report, because you are worried about my cross-examination of you, and if you had found that these --
Please netflix! The trial!
GAHN: Objection, your Honor, to the form of that question and that's not what his testimony was.
BUTING: I haven't finished it, but I will start rephrasing it. If you had done this study, two days after issuing your report and you knew you were going to come into court and testify under oath about and if you had gotten results that would show this EDTA really wasn't as stable as you thought it was, you would be -- you would have a bit of a problem there, wouldn't you?
LEBEAU: I did think it was a good idea to do since we did have available to us bloodstains that were months old. I didn't think, as a scientist, that I could just pass that by and not test them.
A good idea to do it after he issued the report??? Moron.
JB: Well, I'm very glad to hear that, sir.
ML: I'm sorry?
JB: I'm very glad to hear that, as a scientist, you didn't just pass that by. But, tell me, page two, which is the only place that describes the actual method that was used; is this a protocol?
ML: I'm sorry?
(Marc is clearly still flustered from the smack down and was not listening at all. It was a pretty straightforward question.)
JB: Is this a protocol for testing the stability of EDTA in 33 month old bloodstains? So, did you submit a protocol to determine the stability of EDTA, long term, over many, many months?
Jerry has him by the balls. The jury might not have caught it, but the 33 months old blood stains was a ridiculous attempt to fake some sort of understanding of how stable EDTA was.
ML: I don't think I understand that question.
Bull****.
No joke .. I had to cut out a bit ... his 'misunderstanding' goes on for a while.
The tube was in a controlled environment. In a box within a box - not exposed to any kind of light and not exposed to any significant amount of oxygen or bacteria, but was kept in a controlled predictable environment.
Once the blood was removed and placed in very minuscule amounts around the open environment of the RAV 4, we can hardly apply the same observations of how the chemical behaves in RIVERS or in a VIAL or especially on SPOT CARDS, to how it would behave in drastically reduced amounts exposed to a multitude of variables in the RAV.
Not that JB original question was too complicated, but eventually He comes out with wording to which Lebeau cannot feign misunderstanding.
JB: Let me just ask, very simple: Did you develop a new protocol -- the question probably begs the answer -- but you did not develop a new protocol and go through your rigorous review and approval and validation and studies, and all of that, for the specific question of determining the stability of EDTA, correct?
ML: We did not develop a new protocol to address the -- any potential breakdown of EDTA.
Catch that? He stops himself to add the word, 'potential.'
A potential breakdown of EDTA.
There was a breakdown of EDTA people!!
We just don't know how much of a breakdown.
He is such a piece of poop.
He didn't take the time to validate his own test? No. Why would he? No time for that, just sign a deviation and get those results to the prosecution to the court house.
OK thank you to those who read the whole thing! Almost done.
The biggest issue here, a common issue throughout, is how the jury perceived these results. Jerry did an excellent job, but recall if you will, in the documentary we see Kratz presents the Jury with a visual to help them understand the results of the test. Like most everything else in this case, the visual is obviously INTENTIONALLY misleading.
It offers only two possibilities: either EDTA is detected, in which case one could reasonable assume the blood came from the vial, or that EDTA is not detected, in which case one must assume the blood came from the freely bleeding finger of Steven Avery. Of course the third possibility was not depicted on the visual presented to the jury.
Due to the lack of a quantitative test and the lack of a validated rate of degradation, there is a third possibility.
The third possibility, and this is a very real possibility, one that was never offered by the prosecution or by the witness, is that EDTA may very well have been present in the swabs collected from the RAV but it was simply present in a quantity that would not have been detected by the invalidated limit of detection utilized by the FBI.
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[–]dvb05 6 points 5 hours ago
Superb post, the smugness on the face of that guy was quickly wiped when Buting said he could "elaborate later"...... A home run hit.
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[–]needless-things[S]
