IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO EXCLUDE LATTER-DAY
VOODOO SEROLOGY EVIDENCE PROPOSED BY STATE EXPERTS

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, the Louisiana Constitution and Louisiana law to exclude certain pseudo-scientific electrophoretic evidence from his trial, as latter-day voodoo having insufficient basis in verifiable fact. In support of his motion, Mr. CLIENT states as follows:
1. The term electrophoresis is used to describe the process by which it is possible, in theory, to effect:
"the separation of biologically important proteins through the use of electric current. Proteins are very complex molecules which assume positive, negative, or neutral charges, depending on the solution in which they are placed. When these charged molecules are placed on an appropriate medium and subjected to an electrical field, they will migrate toward the pole of the opposite charge. Blood proteins vary in size, shape, density, and charge; consequently they vary in electrophoretic mobility. Therefore, after electrophoresis, they are separated into distinct bands on the supporting medium. The distinct bands form characteristic patterns that reveal the protein subtypes."

People v. Young, 425 Mich. 470, 391 N.W.2d 270, 273 (Mich. 1986) (quoting, Grunbaum, "Potential and limitations of forensic blood analysis" reproduced in Handbook for Forensic Individualization of Human Blood and Bloodstains). A technician from the crime lab plans to testify against Mr. CLIENT. The technician apparently used the electrophoretic method to test and allegedly identify known samples of the victim's blood and Mr. CLIENT's.
2. The ABO system has been in use since the turn of the century. See Gaensslen, Sourcebook in Forensic Serology, Immunology & Biochemistry, at 261 (U.S. Dept. Justice, 1983) (hereinafter Sourcebook in Forensic Serology). The technician has stated that there were "four different blood types in the ABO blood group system: A, B, AB and O." He is wrong, since there are at least six in common usage, Sourcebook in Forensic Serology, at 259, and several others have been identified. Id. at 266-70.
3. The technician also sought to identify the phosphoglucomutase (PGM) type. PGM is an enzyme first identified in 1936. Again, when the technician says that there are three variants of PGM--1, 2 & 2-1--he is in error. It has been common knowledge in the scientific community for over two decades that there are at least ten alleles of PGM. See Sourcebook in Forensic Serology at 425; Sutton, Further Alleles of Phosphoglucomutase in Human Semen Detected by Isoelectric Focusing, 23 J. For. Sci. 189 (1978); Burdett, Isoelectric Focusing in Agarose: Phosphoglucomutase Typing, 26 J. For. Sci. 405 (1981). This is an error of immense significance, since the analogy from the law would be an attorney parsing an appellate transcript for violations of just the First, Second and Third Amendments, ignoring the rest. The technician also sought to identify the type of another enzyme--esterase D (ESD)--in the blood he was testing. He testified to the following results from his analysis:
Victim Mr. CLIENT
ABO O O
PGM 2 2-1
ESD 1 ?
4. The technician says that approximately two percent of the population had the victim's blood profile. As discussed in greater detail in other pleadings, this statistic has no basis in scientific fact and should be excluded.
5. The technician allegedly failed to establish an ESD result for Mr. CLIENT's freshly-drawn sample of blood--a remarkable failing, if true. Equally critical, even by the technician's own flawed testing system, there was only one variation between the victim's blood and the enzymes known in Mr. CLIENT's blood. Even this presupposes that the technician properly typed the samples. This is quite an assumption, because a recent F.B.I. study showed that crime lab personnel err in their typing of forensic blood samples in up to seventy-one percent of the testing performed. See, Decke, Expert Services in the Defense of Criminal Cases: The Constitutional and Statutory Rights of Indigents, 51 Cinn. L. Rev. 574, 577 (1982); L.E.A.A. Newsletter (Sept. 1978) (reproduced in, Imwinkelreid, The Methods of Attacking Scientific Evidence, at 5 (1982)); see also, Rees & Strong, Persistence of Blood Group Factors in Stored Samples, 15 J. For. Sci. 43 (1975) (fifty percent error rate in stored PGM samples); Rothwell, The Effect of Storage Upon the Activity of Phosphoglucomutase and Adenylate Kinase Enzymes in Blood Samples and Blood Stains, 10 Med. Sci. Law 230 (1970) (same). The only supposed "validating" study for the technician's technique was refused for publication after allegations that its proponent had faked the figures. People v. Young, 391 N.W.2d at 280.
6. Shocking revelations concerning the Crime Labs' terrible track record in typing bloodstains require that the technician's claims to omniscience should be rejected out of hand:
A courtroom is not a research laboratory. The fate of a defendant in a criminal proceeding should not hang on his ability to successfully rebut scientific evidence which bears an 'aura of special reliability and trustworthiness' although, in reality, the witness is testifying on the basis of an unproved hypothesis . . . .

United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977).
7. To receive the imprimatur of this Court evidence introduced against the accused must at least bear indicia of reliability. To be admissible, "expert" evidence must be more than simply "relevant" at some very rudimentary level. As the court noted in United States v. McBride, 786 F.2d 45 (2d Cir. 1986):
The admissibility of expert testimony calls for the application of somewhat overlapping requirements. The evidence must be relevant. . . . Expert testimony must be based upon a reliable area of expertise, as has come to be associated with the rule associated with Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (D.C. Cir. 1923), which requires that novel scientific evidence be sufficiently established to have gained general acceptance in the field to which it belongs. * * * [B]oth of these requirements [are applied] to the use of expert testimony by requiring that specialized knowledge "assist the trier of fact to understand the evidence or to determine a fact in issue." Finally, otherwise admissible expert testimony may be excluded if its probative value is substantially outweighed by the dangers that it might confuse the issues, be unfairly prejudicial, cause undue delay or waste judicial resources.

Under Frye, a scientific technique should be used to sustain a criminal conviction only where it is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. 293 F. at 1014. The Frye test for the acceptability of scientific evidence has itself withstood the test of sixty-four years, and is generally utilized throughout the United States. While not every court has considered the question, at least 48 jurisdictions in the United States currently adhere to the standard.

Id. at 49.
8. For this reason, courts which have recently considered the use of electrophoretic evidence have found that the test procedure is so unreliable that the results should not be admitted at all. See, e.g., People v. Young, 425 Mich. 470, 391 N.W.2d 270 (Mich. 1986); People v. Brown, 40 Cal. 2d 512, 220 Cal. Rptr. 637, 709 P.2d 440, 447-51 (1985), rev'd on other grounds sub nom. California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987); People v. Harbold, 124 Ill. App. 3d 363, 79 Ill. Dec. 830, 464 N.E.2d 734, 746-48 (Ill. App. 1st Dist. 1984); People v. Seda, 139 Misc. 2d 834, 529 N.Y.S.2d 931 (N.Y. Sup. Ct. 1988).
WHEREFORE, Mr. CLIENT requests an evidentiary hearing on this matter, where he may demonstrate to this Court why it is necessary to exclude electrophoresis from this trial altogether.
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