The Maryland Court of Appeals has told a trial court to review whether the long-accepted courtroom science linking fatal bullets to specific guns in homicide cases withstands the high court’s recently adopted standard that permits emerging and contrary scientific theories to be considered.
In an order this week, the Court of Appeals instructed the Prince George’s County Circuit Court to examine convicted murderer Kobina Abruquah’s challenge – in light of the new standard — to a firearms expert’s trial testimony that the bullet which killed Ivan Aguirre-Herrera was fired from Abruquah’s gun.
That testimony was based on the generally accepted science that each gun leaves an individualized and identifiable mark on the bullets it fires.
In his appeal to the high court, Abruquah argued through counsel that the accuracy of “firearm and toolmark identification” testimony has come under sharp scrutiny recently in the scientific community, beginning perhaps with National Research Council’s 2008 report “Ballistic Imaging.”
“It does not matter that courts have long allowed the use of a questioned technology,” wrote attorney J. Bradford McCullough, of Lerch, Early & Brewer Chtd. in Bethesda “This Court (of Appeals) should decide whether the underlying data relied on by examiners provide a sufficient scientific basis to support those individualization opinions.”
A jury, having heard the controversial testimony, found Abruquah guilty of first-degree murder in the 2012 slaying of Aguirre-Herrera, his Riverdale housemate. He was sentenced to life in prison.
The Court of Appeals issued its order in summary fashion by granting Abruquah’s request for its review and remanding the case to the circuit court without overturning his conviction or ordering a new trial at this time. Instead, the high court instructed the trial court to determine whether it still would have permitted the firearm and toolmark testimony in light of the new standard and questions regarding the accuracy of such testimony.
The court’s order followed its 4-3 decision in Rochkind v. Stevenson last August in which it abandoned its long-held “general acceptance” standard for admitting scientific testimony in favor of a “reliability” standard annunciated by the U.S. Supreme Court in a 1993 decision and adopted by about 40 states in the past 27 years.
The widely accepted – and now Maryland-adopted — standard is called Daubert, after the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals Inc. The former general acceptance standard was known as Frye-Reed, after a 1923 U.S. appeals court decision, Frye v. United States, and the Court of Appeals’ 1978 ruling in Reed v. State.
Appellate attorney Michael A. Wein said the Court of Appeals’ order in Abruquah’s case sends the clear message to judges and litigants in cases involving scientific evidence and testimony that the new evidentiary standard applies.
“It certainly is a signal to argue Daubert at the trial level,” said Wein, a Greenbelt solo practitioner. “Don’t make the mistake of misapplying Frye-Reed.”
The high court’s order was not unanimous, as two of the judges who dissented in Rochkind also disagreed with sending the case back to the circuit court.
Judges Shirley M. Watts and Michele D. Hotten said the circuit court judge conducted a “lengthy and detailed” pretrial review of the firearm and toolmark testimony before concluding it was reliable enough to present to the jury, rendering the Court of Appeals’ remand unnecessary.
“The question in this case that both the circuit court and the Court of Special Appeals addressed is whether toolmark examination is generally accepted in the relevant scientific community and whether the methodology used by the expert was reliable,” Watts wrote in the dissent from the order, which Hotten joined. “It appears that nothing in the record in this case indicates that there would be any further basis for a Daubert challenge to the expert’s testimony or to firearm toolmarks examination.”
At the pretrial hearing, Abruquah’s counsel presented testimony from William A. Tobin, former chief of the FBI’s metallurgy lab, who said firearm examination should no longer be generally accepted as it is more art than science. The state countered with Torin Suber, a forensic scientist manager with the Maryland State Police, and Scott McVeigh, a firearms inspector with the Prince George’s County Police Department, who vouched for the reliability of their work, according to court papers.
The judge, citing the then-applicable Frye-Reed standard of general acceptance, permitted McVeigh to testify at trial that the bullets which killed Aguirre-Herrera came from Abruquah’s gun.
The Court of Special Appeals upheld Abruquah’s conviction in January, prompting his appeal to the high court.
The Court of Appeals issued its order in Kobina Ebo Abruquah v. State of Maryland, No. 34, September Term 2020.