Blood Vial Test Back On

On Friday, 2 February 2007, Judge Patrick Willis has relented and allowed the prosecution to attempt blood testing that was denied. Since Willis has allowed the unsecured vial of Avery’s blood to be used for a framed defense, the prosecution is in a bind.

Whether the test, if completed in a timely manner, has value is debatable. The test is being developed by the FBI with the intent of showing that blood evidence containing EDTA is different from evidence blood stored in lavender stoppered vials. The test is being volunteered by the FBI specifically for this case according to news reports.

Earlier the prosecution requested a delay for testing the blood. The time frame for the test was three to four months.

The test is still being developed. The test must be shown to be repeatable and must also be subject to peer review for proper validation. Unfortunately, this kind of scientific behavior is lacking in much of the forensic work performed in this country. To make matters worse, in Wisconsin scientific validity is not a requirement for a judge to allow expert testimony to be used in a trial.

Judge Willis denied the defense request to have time to rebut the test if necessary. He claimed that the defense already had time to test the blood. But, the judge in a previous ruling denying the prosecution a delay stated that there was no reliable test. So, how can he claim the defense failed to test the blood when he stated there was a lack of tests? The Judge did emphasize that allowing the test does not mean allowing the result as evidence.

And, despite our much believed premise of a fair playing field in our justice system, the State has much more resources. I do not believe that the FBI would volunteer to provide a test specifically for the defense in this case or any other. Plus it is the state that gathers evidence with the intent of proving their (sometimes arbitrary) suspect guilty rather than conduct open‑minded investigations.

No matter the outcome, the result will be challenged by one side or the other. There is a very likely probability that the test will not be available until after the trial. But, if the result is obtained in the last week of the trial, will that be grounds for an extension?