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Ballistics State Criminalist James Pex led the forensics team. His initial response to the crime scene was that the shooter had 'leaned into the car' and fired. Later following their ballistics tests with bullets and cartridges from both crime scene and Diane's home. The State claimed they could put the gun in her hands. James Pex concluded that a 'best fit' Ruger .22 semi-automatic was the prime candidate. To assist him in this Pex had obtained a number of Ruger’s from gun shops connected to the police department (whose task it was to destroy them). Diane had informed Investigators that she possessed .38 caliber Smith andWesson handgun which she kept in the trunk of her car. Also a .22 Glenfield rifle which was on a closet shelf in her apartment. The .38 handgun was retrieved from the trunk of her car and quickly eliminated from the crime. The rifle along with some rounds of ammunition were recovered from her apartment. The rifle was also eliminated from the crime.
Following his ballistics examinations Pex claimed to have discovered compatible marking’s on two cartridges (overlooked they said during an initial search!) found in Diane's apartment and casings found at the crime scene. He believed that ammunition found in Diane’s home was at some time loaded into and ejected from the same weapon as that used in the crime. Tests by another State Criminalist, California's, John Murdoch however contradicted Pex’s findings. Following four different tests Murdoch, one of the countries leading experts in this field of forensics, failed to connect the bullets and casings between home and crime scene.
Extractor Marks
However the notes generated by the State's expert, John Murdoch, are inconsistent with his testimony at the trial. He had documented in his notes that despite running four different tests on bullets allegedly found in Diane's apartment, in an attempt to link her definitively to the crime, he was unable to make a match. In his trial testimony however John Murdoch, was somehow able to testify that there was a match. Trial counsel was in possession of Murdoch's notes and should have used them to assure his client a fair trial as guaranteed by the Constitution, but he did not. This failure of the Defense counsel was to be one of many such failings.
State Criminalist James Pex was subpoenaed to testify at a 1991 post-conviction Hearing. He was pressed for his interpretation of John Murdoch's initial (1983) notes by an Attorney representing Diane. This was in preparation of Diane making a showing that her trial Attorney was ineffective in not using Mr. Murdoch's notes about tool marks and class characteristics in his representation of her at trial. Pex's conclusions were the same as Murdoch's own (pre-trial) conclusions. He confirmed that such tests and results showed it was 'impossible' to link the cartridges in the home to the casings at the crime scene. So there can be no mistaking Mr. Pex's testimony and Mr. Murdoch's notes, these are verbatim quotes from the transcript and notes, (App 103). Page 255, line 19, of Mr. Pex's June 25, 1991 testimony:
Q: (Gorham) "Will all of this 'type' of weapon produce the same marks, at least the general characteristics, the same position of the casings" (emphasis added).
Q: (Gorham) "One way to tell.. .what type of weapon or whether a weapon did put the marks that you see on the casing would be the relationship between the two where they actually are on the casing, is that
correct"?
A: (Pex) "Yes".
Q: "So one weapon should only have produced one relationship
on the casing of these two marks"?
A: "Yes".
Q: "And isn't that at least somewhat how that's described like ejector mark is at 3 o'clock and....and extractor mark may be at 6 o'clock. Is that one way they are described, least that
relationship we use the mechanism"?
A: "Yeah. That is how we use the mechanism. We would use clock wise around the circ rim to show the different positions".
Q: "So in your examination, one way to know that a casing 'will not compare' to another casing is to say the ejector marks and the extractor mark are in a different relationship to each other"?.
A: "Yes" .
And just so there is no confusing this issue, Mr. Pex was zeroed in on specifics, p. 271, line 21:
Q: "Are you saying that it is impossible for an expert to say that the extractor marks are the same, but the ejector marks are different"
A: " I don't see how that could be possible".
Q: "Okay. So if the extractor marks are identified as being from the same weapon, the ejector marks also have to be identified as being the same weapon or there is something wrong"?
Q: "Or there is something wrong"?
A: "Same class of weapon".
Q: "Or there is something wrong"?
A: "Right".
Q: "So
if you had an extractor mark and the relationship on the one
casing and the relationship to the
And yet you had an extractor mark and ejector mark on
another casing that was
say 3 o'clock and
A: "Yes."
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