Legal problems with reloads

We2, you don't seem to have a handle on the Bias case. In the opinion of his own attorneys, if his gun had been loaded with factory ammo, he would never have been convicted. Quite probably, he never even would have been charged.

Bias had no motive to kill his wife. There was NONE of the usual abusive escalation that leads up to wife murder. Moreover, his wife had multiple times expressed suicidal ideation and at one time had attempted suicide with a firearm.

Because the spent cartridge was headstamped "Federal +P" the crime lab did GSR testing with exemplar Federal +P ammunition. Their conclusion was that GSR would have been left from a distance the length of her arm, and since there was no GSR on the body, they concluded that the gun could not have been in her hand. Defense testing with the light handloads Bias had recorded making did not deposit GSR at arm's length, and would have vindicated his story. Unfortunately, neither testing nor testimony was allowed. "The defendant manufactured the evidence" and all that.

The state's case, and the ultimate conviction, turned on the fact that the crime lab testimony was, in essence, "That ammo would have left GSR if she had been holding the gun, and it left no GSR on her body."

We2, you say you were a prosecutor. If you were prosecuting a rape case, and demanded a blood sample from the defendant for DNA testing, would you have allowed his attorney to drop a vial of blood at your office and say, "Take my word for it, this came from my client"? Of course not. Asking the courts to take your word, believe your records, or test your home-made ammo is asking the same thing. You can't expect it to be admitted.

This is why we've not yet found a case where the courts accepted GSR testing with handloads, and probably never will.
 
So Mr. Ayoob, what you're saying is, we should all load our handloads as hot as possible, so that it always looks like the other person shot themselves? (Just kidding!)

In our country, jury trials are decided rather arbitrarily by a group of 12 people who are not particularly bound to follow any specific code of decision making. There are good and bad aspects to this. One good aspect is that the "He Needed Killin'" defense still occasionally works! One bad aspect is that, every now and again, juries convict people who really didn't need to be convicted. Now, for more bad news: The appeal process is VERY expensive. So, lots of times, these unfair convictions never get overturned on appeal.
 
Point of clarification, if you please.

The spent cartridge used to kill the wife was labeled "Federal +P," as was the exemplar cartridge used by the crime lab.

A scraping and chemical analysis of a portion of the suspect cartridge and the exemplar cartridge would either be the same, thereby establishing beyond any doubt that the two cartridges were in fact manufactured by the same method, or that the chemical composition differed and would tend to substantiate the claim that the suspect cartridge was reloaded. Common reloading powders do not meet the same chemical composition as those used by manufacturers, hence the residue would be chemically different: Different powders and different primers.

Further, an examination of the suspect cartridges versus the exemplar cartridges may also tend to show enough difference between factory loading and handloading; enough to substantiate or dispel the claim by the defendant.

Was this testing even done? I would guess not, considering the "conclusion" of the crime lab.

ETA: While the crime lab is only going to test as far as the DA wants, independent testing by the defense may have abated the DA case or at the least, placed reasonable doubt on the table.
 
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Great discussion, Fiddle and Mas!

I'm not adding anything new but the way I see it is that:

1. There is enough evidence from various sources that suggest weapons related factors can be a factor in a trial. One would want to minimize these.

2. If one wants to use something that may prime such factors then you have to consider whether the usage of such materials is a greater gain than the potential loss.

3. Your lawyer should be aware of such and you should be aware of the expenses involved. In your equipment choice, you should be prepared to rationalize your choice beyond simply 'killing power'.

4. To the question here - does the use of handloads give you such an added advantage in a confrontation that it exceeds the risk of such (even if it is a small risk).

As far as statistics - most cases of DGUs can be handled with an unloaded gun. So carry that.
 
Well Stage 2, let me put it this way, I simply don't buy your position.
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You don't have to, and I'm not saying you personally should. All I'm saying is that the argument that handloads are a liability is not definitive whatsoever. You don't have any evidence to prove your assertion.


Litigation and jury psychology are substantially the same in criminal and in civil matters, albeit the standard of proof is different.
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I will take this to mean you have never tried a criminal case. I will however give you kudos on squarely hitting the nail about the standard of proof. That is what makes things in criminal trials an entirely different ballgame.

I will also add that while there are similarities with juries regarding psychology and such, I don't believe that they are the same as you believe them to be. From listening to jurors from both civil and criminal cases, there seems to be a different approach to criminal cases in that the impact of seeing the defendant in the courtroom and knowing that they control his fate creates a heightened sense of importance and scrutiny among the panel. Its one thing to award money, its a whole different thing to send someone away for 30 years. I do believe this changes the dynamic substantially.


Ah, but Stage moi droog, arent you ignoring by that argument, my clear adage:
"Don't say or do anything that may need MORE explaining at trial"
"Handloads" are just one other little thingy that needs to be explained...
Simple is better, sometimes.
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First, I did hug my webley yesterday so that should suffice. Secondly, I agree that simple is usually better. However I also believe if things aren't broken, then they shouldn't be fixed (welcome to the war of the adages). If there was a reason to change then that would be fine. However simplifying just for the sake of simplifying isn't justified.


Because the spent cartridge was headstamped "Federal +P" the crime lab did GSR testing with exemplar Federal +P ammunition. Their conclusion was that GSR would have been left from a distance the length of her arm, and since there was no GSR on the body, they concluded that the gun could not have been in her hand. Defense testing with the light handloads Bias had recorded making did not deposit GSR at arm's length, and would have vindicated his story. Unfortunately, neither testing nor testimony was allowed. "The defendant manufactured the evidence" and all that.
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Here's my problem. If Bias testified to the fact that he loaded his gun with those specific handloads, and then the defense called an expert such as yourself to testify that these kinds of handloads would not leave any GSR on the body, that creates more than enough reasonable doubt to negate the states findings.

Furthermore, as Antipitas suggests, an examination by defense experts of the cartridges in evidence versus Federal +P ammunition should have revealed that the ammo was not the same. A lab doesn't have to shoot the ammo to to make this differentiation.


We2, you say you were a prosecutor. If you were prosecuting a rape case, and demanded a blood sample from the defendant for DNA testing, would you have allowed his attorney to drop a vial of blood at your office and say, "Take my word for it, this came from my client"? Of course not. Asking the courts to take your word, believe your records, or test your home-made ammo is asking the same thing. You can't expect it to be admitted.
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No I wouldn't. But your analogy misses the point. The defense isn't trying to get the evidence admitted to prove that it was the bullet in the gun. They are introducing it to offer a reason for why no GSR was found on the body. While it would be nice, the court doesn't have to take anyones word for what was in the gun for this to have its intended impact.

You see if I called you to the stand and after qualifying you as an expert asked you "Mr. Ayoob, would it be possible for a person to be shot at the range the wife was shot from and have no GSR on the body," you would respond with "yes". Then we could get into the conditions which would cause this, and then get into your testing which produced these results.

After that I call Bias to the stand and have him testify to the fact that his handloads were the same as what you had just finished talking about. Then in my closing I spend all sorts of time talking about how happy Bias was with his wife, how he cared for her even though she was very sick, and then I drive it home by making the point about how the only piece of evidence that suggests this was a murder is easily explained and was in fact the very bullets that were in the gun.

You see the beauty of being a defense attorney is that you really don't have to do anything (technically speaking). The burden is entirely on the prosecutor. Theoretically, you could sit on your thumbs all day long and still win the case. Add to that the prosecutors burden is very high and the defense has a huge head start.

So at the end of the day what we have here is a normal guy with no criminal record, no motive to kill, a wife that has been documented to be suicidal and has attempted to shoot herself in the past, and have a valid legitimate reason for the only hook the prosecution has to hang their hat on. If thats not reasonable doubt then I don't know what is.

So my question to you is (again) did the defense call an expert? Did Bias take the stand and testify as to what was loaded in his gun? Did his defense attorney have an independent examination of the rounds done?

If the defense attorney did do this and it was excluded than that is grounds for appeal.
 
We2, I agree that should have been done, but the attorneys advised me that they were told by the court they could not go into the handloads.
 
We2, I agree that should have been done, but the attorneys advised me that they were told by the court they could not go into the handloads.
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Which makes a good case for appeal.

I'm pretty much in agreement with Antipitas' comments. Beyond that, the Bias case doesn't indicate much about the use of handloads for defense in general... merely that defensive handloads shouldn't be under-loaded (which should be self-evident, I would think).

Beyond that... if the judge ruled that the issue of the handloads could not be raised at all by the defense, and that the defense could not introduce as evidence the casings, un-fired ammo from the mag or cylinder, and independent forensic lab results on the residue, then the judge made a decision that prevented the defense from introducing relevant, factual evidence. (Again, this is a matter of fact which should be decided by the jury; not a matter of law to be decided by the judge.) If that sort of thing is common in trials, then the handload issue really doesn't matter, because the entire system of justice is corrupt.

Just my opinion...
 
We2, I agree that should have been done, but the attorneys advised me that they were told by the court they could not go into the handloads.
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I have to ask. Who is We2?

As far as what the attorneys said, something doesn't smell right. Either that is grounds for an appeal or they weren't telling you the full story. If the court refused to let them talk about handloads at all then they should have preserved error and let an appeals court decide.

There are plenty of judges that are idiots and don't know the law, especially in regards to evidence. Because one tells you not to do something doesn't mean that you throw up your hands and say oh well so much for that. Me thinks that several balls may have been dropped in the switch between attorneys, or maybe by just one.

I also would like to know whether Bias took the stand.
 
Another thought that come to mind (after reviewing this thread with my wife, a CLA who had worked for years in a local hospital lab, up until last year), the GSR from manufactured ammo is different from handloads. Also, over and above the GSR (in general), is the stippling that would be left within the GSR pattern. Such stippling is in itself indicative of the distance, regardless of the factory vs. handload question.

Do we know if the crime lab testimony covered just the apparent GSR or the actual stippling?

Much like the bullet itself, the unburnt powder is propelled into the tissue, by the gasses from the fired cartridge. The closer the firearm to the soft tissue of the body, the deeper within the tissue the particles are embedded. An autopsy would have revealed the extent of stippling penetration and the distance of the firearm from the tissue.

So many questions, so little facts....
 
Fellas, I don't recall whether Bias took the stand or not. I wasn't there for the trial.

Antipitas, I don't recall whether that was brought up or not. Wasn't there for the pre-trial conferences and evidentiary motions. I got the impression from the attorneys that the court simply went with the state's assertion that factory ammo had been used.

While proving that a handload instead of a factory load was used would have been a start, there would still have been the problem of convincing the triers of the facts that the given spent cartridge had the exact same powder charge, and therefore the exact same GSR characteristics, as what was listed in the defendant's loading records.

Remember, we still don't have a case on any of these many threads of a court accepting the defendant's word or notes as to what was in the given cartridge(s) fired. That's a pretty solid clue, folks: you can't realistically expect your handloads to be accepted by the courts for GSR testing if it becomes important, as it often does.

As some have pointed out, there's also the matter of the time it takes to argue this in court. Look how many pages we've got, just in this thread, debating it...and we're all on the same side as far as justifiable homicide and self-defense. That would be time taken away from more important arguments in the courtroom, and time for some jurors to get the impression that the defense was focusing on minor technicalities, as if to hide something more important. And this is just one of three threads on this topic going on right now just on TFL.

I have to agree with the many posters who said the cost/benefit analysis just does not come down in favor of using handloads for self-defense.

Stage Two, my apology for getting your forum name wrong.
 
Remember, we still don't have a case on any of these many threads of a court accepting the defendant's word or notes as to what was in the given cartridge(s) fired. That's a pretty solid clue, folks: you can't realistically expect your handloads to be accepted by the courts for GSR testing if it becomes important, as it often does.
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But again you've come to a conclusion without any real basis. I can't see where any court would not allow a defendant to testify as to what he loaded his gun with.

In fact I've been in the courtroom where defendants have testified to what they had loaded their firearms with going as far as brand and grain. That would seem to counter your assertion that a court won't allow defendants to testify what rounds they were using.

The more I hear about this case, the more its starting to seem like something very wrong happened in either the planning or the execution of this defense.
 
What happens when the media reports that reloads might have been used?. Will they give it a fair report?. Could it affect the outcome of your trial?. Question 1- NO! 2-YES!
For the record I have approx. 40 hydrashoks ready to go, after that hollow point reloads.
Dave.
 
Tell us, Stage 2, in those cases where you were in the courtroom and people testified as to the ammo they used...how many of those cases involved shootings with handloads?
 
Tell us, Stage 2, in those cases where you were in the courtroom and people testified as to the ammo they used...how many of those cases involved shootings with handloads?
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None, but thats pretty much irrelevant. There isn't any reason why Bias couldn't have been called to the stand to testify what was in the gun and why it was there, and then call an expert to testify whether GSR would have been found on the body if such a light load was in the gun.

You see there isn't any reason why the court would prevent a defendant from testifying into these matters. He doesn't have to have any expert knowledge on firearms because he has personal knowledge since he was the guy who loaded it. In fact he is the only one with this knowledge. This evidence is both logically and legally relevant and I can't see any prejducial reasons fo why it could be excluded. Thus if the court did exclude this its appealable.

Thats one of the reasons why I needed to know whether Bias took the stand. If he's as clean cut as you say I can't see any reason why his attorney wouldn't put him up there. Even though they aren't supposed to consider it, juries find it funny when defendants who are "innocent" don't take the stand. I'm beginning to have a feeling that he didn't and that started the snowball which resulted in his conviction.

So to sum it up, there isn't any court that is going to prevent a defendant from testifying to what he loaded his gun with after they have let the prosecution present evidence on the subject. If they dont, then its going up the ladder.
 
Stage 2, I agree with you on one point, and have to respectfully differ with you on another.

I too have long believed that a wrongly accused defendant should take the stand. No matter how forcefully the judge explains to the jury that failure to take the stand must not be held against the defendant, we cannot order the water to run uphill and we cannot order jurors to ignore their own, sometimes subconscious, human nature. A part of the juror is thinking, "If it was me and I wasn't guilty, I couldn't wait to get up there and tell my side of it."

A great many defense attorneys, however, are loathe to have a defendant take the stand, and they will so advise the clients, and will tell you the same when you ask about it while playing golf or something. DNS has frequently posted here and elsewhere that he doesn't think your attorney will let you take the stand, which tells me he's heard the same things from members of defense bar.

I personally think a lot of them give this advice simply because so many of their clients are guilty, and can only incriminate themselves or commit perjury if they do take the stand. However, the evidence indicates that this was not the case in the Bias matter.

I've also met some attorneys with great experience in defending wrongfully accused people who still don't want to put them on the stand, on the grounds that ordinary folks, particularly those who fit the "nice person" mold, might be ripped apart in their first cross-examination at the hands of a seasoned prosecutor who is out for a conviction and knows the tricks of the trade. In my time as an expert witness since 1979, there have even been a handful of cases where I've agreed with the prosecutor not to put the witness on the stand because they wouldn't be able to stand up to the cross, even though they had done the right thing. One was a battered woman conditioned throughout her life to submit to any dominant male and blurt out something to satisfy him; she would have been putty in a male prosecutor's hands. One was a 40-something guy whose cardiologist told us he didn't think he could survive the stress of cross, literally not figuratively. One had a language barrier. All came out OK at trial.

Where I disagree with you, Stage Two, is where you mention that you and your friends in the criminal justice community have seen folks testify as to the loads in your guns, and when called on it, you admit none of those were handloads. You then state "that's pretty much irrelevant."

Not at all. They had factory loads. Any crime lab testing for GSR would have been done with identical factory loads, if done according to protocol. THE ISSUE THAT CONVICTED BIAS SIMPLY WOULDN'T HAVE COME UP.

One more time, folks. As Stage Two has stated earlier, the prosecution won't take your word for anything. I am telling you, and the one such case we have to dissect is telling you, that this will apply to handloads if and when GSR testing becomes critical, as it often does since most SD shootings happen at close range.

Stage Two agrees that as a prosecutor he would not accept a questionable blood sample provided by the defendant. The handload IS a "questionable evidentiary sample" since the triers of the facts must take the word of the reloader, in testimony or from his loading records, that the charge in the fatal cartridge was in fact what he says it is.

In the Bias case, the trial court did not take the defendant's word either, and made it clear before trial that testing with the putative load by the defense team would not be admissible.

This left the state its only strong argument: that GSR testing with factory ammo consistent with the single spent casing concluded the gun must have been beyond the holding reach of the deceased when it discharged.

It was an argument the defense was now not allowed to refute, for the reasons we've spent the many pages of this thread discussing.

If he HAD loaded his home defense gun with factory +P, the GSR evidence would have been there on her corpse, to confirm his account of the gun discharging in her hand when he failed to keep her from committing suicide.

Bias' trial lawyers, who know better than any of us how it went down, said he would not have been convicted if factory ammo wasn't in the gun.

It is human nature for us debating this to try to deflect blame. I've heard, "He must have really murdered her." I've heard, "He must have had lousy lawyers." "It must have been a lousy judge." "Aw, it's not a self-defense shooting anyway, so it doesn't matter."

The evidence indicates that Bias was probably telling the truth, and both his attorneys have sterling reputations at what they do. I wish the judge had ruled otherwise, but given the element of "the defendant literally manufactured the evidence" I can understand how the judge came to the decision to exclude that evidence.

And, PLEASE understand, the Bias case is about the admissibility of handloaded/reloaded ammunition for GSR testing. The same thing will happen in any case, whether the shooting was accidental, self-defense, or suicidal.

Add to that the fact that we STILL don't have a case from ANYONE in which the court took the handloader's word for what was in his gun, and the handwriting is pretty clear on the wall.
 
Stage Two agrees that as a prosecutor he would not accept a questionable blood sample provided by the defendant. The handload IS a "questionable evidentiary sample" since the triers of the facts must take the word of the reloader, in testimony or from his loading records, that the charge in the fatal cartridge was in fact what he says it is.
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There are other things that you said that I want to address but this is the main point.

I said a prosecutor would not accept a questionable anything from a defense attorney. HOWEVER, you are confusing this with the issue of presenting evidence.

Using your blood sample analogy, I as the prosecutor would present my evidence with the blood sample that I thought was legitimate, and the defense would present their evidence that they believe is legitimate. Its the job of the jury as the fact finder to determine which piece of evidence is valid.

Again, I am a little confused since you keep saying a jury has to "take the word of the defendant". If a jury doesn't believe the defendant, then they don't have to take his word. However, this is a completely separate issue from allowing the defense to present the evidence to the jury.

If the prosecution in the Bias case alleged that the rounds were factory, then the defense not only has the ability, but the right to present evidence to contradict this. Whether they do it through Bias on the stand, or by something else, the fact remains that its their right to do so.

Refusing to allow Bias to testify what he loaded in his own gun is appealable. If his attorneys didn't put him on the stand to testify to this, and then call and expert to testify to what effects these rounds would have then I question the competence of his attorneys.
 
In addition to STAGE 2's argument above, I submit that there is corroborating physical evidence, whether from the residue in the fired cartridge or from the remaining unfired cartridges. Combine a forensic analysis of this evidence with an explanation from the witness stand, and you should have pretty good credibility.

I can't see how this could be ruled inadmissible (or how such a ruling could survive an appeal). Again, if such evidence is ruled inadmissible and the testimony disallowed, then I submit that the justice system is hopelessly corrupt, and this discussion is as pointless as arguing about how many angels can dance on the head of a pin.
 
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Mas Ayoob said:
While proving that a handload instead of a factory load was used would have been a start, there would still have been the problem of convincing the triers of the facts that the given spent cartridge had the exact same powder charge, and therefore the exact same GSR characteristics, as what was listed in the defendant's loading records.
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Without even doing a chemical analysis of the residue, a physical examination of the remaining unspent cartridges would be able to determine whether or not they were reloads.

Should the examination prove that the remaining cartridges were handloads, it could be effectively argued that the one spent cartridge was a handload also.

Were all the primers the same in all the cartridges in the firearm? Were they the same primer that a factory cartridge used? The answer to this line of questioning would either substantiate the DA's argument or the argument by the defense.

All without having to put Bias on the stand.

Note on previous argument: Mas, of the 44 counties in Idaho, none have knowledge of this issue ever coming up in a court trial. Of the 44 counties that I contacted for research, only 9 counties actually took the time to review the actual court records on self defense shoots. The results showed the subject never to have come up. Those counties were:

Ada
Blaine
Bonneville
Cassia
Gooding
Jerome
Minidoka
Power
Twin Falls

Coincidently, these are the most populous or among the most populous counties in Idaho. I feel confident, based upon the answers provided, that the subject is a non-starter at this time, in Idaho.
 
Al, is there any way of finding out if any of those cases involved handloaded ammunition, and if so, how many?

Thanks,
Mas
 
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