Kentucky State Police
crime drylabbing suspicions too great to ignore
12, 2007 -- According to Double-Tongued Dictionary: a lexicon of fringe English, focusing on slang, jargon, and new words,
“drylabbing” is defined as the faking of laboratory test results, especially when the test has not been
conducted. Enter the case of the United States of America vs. Kenneth Kutnyak.
March 6, 1986 the United States Drug Enforcement Agency (DEA) assisted by Kentucky State Police and local police raided what
was described in later testimony as a “great big garage type building” in Whitley City, Kentucky. The DEA suspected
that the building contained a clandestine methamphetamine laboratory. Butch Spencer
was suspected of owning and operating the laboratory. On the front of the raided
building appeared signage that read “Butch Spencer Enterprises”. On
March 12, 1986, a federal indictment was returned against Roy Blakeney and Herbert “Butch” Spencer. Blakeney was a fugitive at such time. Both men were charged
with conspiracy to manufacture methamphetamine, possession with intent to distribute phenylacetone (“P2P”), and
possession with intent to distribute methamphetamine.
Kutnyak, along with James Box and Roy Blakeney were charged in a superseding indictment issued on September 6, 1989 in the
Eastern District of Kentucky. The government argued that in 1982, Kutnyak, Box,
and Blakeney conspired to obtain the ingredient P2P in order to manufacture methamphetamine.
The government alleged that Kutnyak “apparently” procured at least five 55-gallon drums of P2P from abroad
and imported the drums to the Minneapolis area, where alleged co-conspirators Wolk and Box lived. According to the indictment, it is alleged that the drums were subsequently transported to alleged co-conspirator
Spencer’s laboratory in McCreary County, Kentucky. The government contends
that Wolk later died while preparing methamphetamine in the suspected clandestine laboratory.
was convicted after a jury trial on February 2, 1990 on counts of conspiracy to manufacture and distribute methamphetamine;
possession with the intent to manufacture and distribute phenylacetone; and possession with intent to distribute methamphetamine. United States District Court Judge Eugene E. Siler sentenced Kutnyak to a total of
30 years in federal prison on May 8, 1990. Attorney Lee Rowland represented Kutnyak
both at trial and through his direct appeal. Kutnyak’s direct appeal was
denied on August 23, 1991.
the Kutnyak trial federal prosecutor Jane Graham called the supervisor of the London, Kentucky State Police Crime Lab, Mr.
John Harris, to the stand to testify on behalf of the government. Federal prosecutor
Francis Catron Thomas examined lab chemist Carl Lawson who also worked in the London, Kentucky lab. At the time, Kentucky State Police (KSP) had four regional laboratories, and a central laboratory located
in Frankfort. Harris and Lawson accompanied the DEA and state police on the March
6, 1986 raid of the suspected clandestine lab in Whitley City.
Muckraker Report obtained a copy of the official court reporter transcript of the Harris / Lawson testimony during direct
examination by prosecutors Jane Graham and Francis Catron Thomas.
testified first. On page 14 of the transcript, federal prosecutor Francis Catron
could you explain a little bit to the Court and jury what types of testing you do with drugs, what kinds of equipment and
chemicals you have to be able to use to determine the identity of controlled substances?
we are testing capsules, liquids, powders, plant material to determine the controlled substance content. And instruments generally used are gas chromatographs and infrared spectrometers and ultraviolet spectrometers,
and also now in our laboratory is mass spectrometer.
attention should be paid to the portion of Lawson’s testimony in which he stated that “…and also now in
our laboratory is mass spectrometer”. Recall that the suspected clandestine
laboratory was raided in March 1986. Lawson provided his testimony in 1990. Lab
results obtained via open records request in 1996 by Attorney LeBell, and in 2006 by Attorney Strum illustrate that the infrared
spectrometer tests, ultraviolet spectrometer tests, and gas chromatographs related to this case were conducted in March 1986. No mass spectrometer test results were provided.
Spectroscopy is a key component to this story.
192 of the transcript, federal prosecutor Jane Graham asks lab supervisor John Harris:
Harris, in connection with your duties as supervisor of the Kentucky State Police crime lab here, regional crime lab here
in London, Kentucky, what are your specific duties, sir?
192-193 of the transcript, Harris responds:
Okay. Again, I am laboratory supervisor, and the laboratory I supervise is a regional laboratory,
like you stated. We have four other regional laboratories and the central lab
in Frankfort. As a supervisor, of course, it’s my duty to see that everything
in the laboratory is run properly. But in addition to the laboratory supervisor,
I am also an analytical chemist or drug chemist is what we on the bench call each other.
And as in that particular duty, I’m asked to analyze different powders and liquids and plant materials, pills,
tablets, that sort of thing, that the different law enforcement agencies around the State of Kentucky might send me and what
they suspect of being some type of a controlled drug under state or local statute or under law. And I am asked to analyze it and determine what it is, and I write a report back saying yes, it is a controlled
drug and this is how it’s found in the law, or no, this is, it’s aspirin or caffeine and something that’s
not controlled. I also am requested on occasion like I was in this case here
today to go out and search a clandestine laboratory or analyze the proceeds from one that are brought in to me by the police
officer after they search it. In the past I have done that on a number of occasions.
to the actual testing of the substances seized in the raid, on page 235 of the transcript, KSP crime lab supervisor John Harris
tested them by infrared spectroscopy, mass spectroscopy, gas chromatograph, and ultraviolet spectroscopy on the controlled
exhibits methamphetamine and on the phenylacetone.
Please note that Harris testified that he tested the substances seized in the raid by infrared
spectroscopy, mass spectroscopy, gas chromatograph, and ultraviolet spectroscopy.
He testified to having conducted a mass spectroscopy test. Prior to the Harris testimony, Lawson testified that they now have mass spectroscopy in their laboratory. This raises the question
as to whether the London, Kentucky crime lab had mass spectroscopy testing capabilities in its lab in 1986 when it conducted
its analysis of the substances related to this case. It also raises the question
as to whether John Harris actually conducted the mass spectroscopy test. If he
did not, then Harris knowingly provided false testimony in a federal court.
What is mass spectroscopy? The Muckraker Report contacted
Dr. James Woodford to find out. Dr. Woodford has done chemical analysis at Scotland
Yard, the U.S. Army Forensic Testing Lab in Wiesbaden, Germany, and state crime labs all over the country. He is a highly credentialed and respected forensic chemist. According
to Dr. Woodford, mass spectroscopy, also referred to as GC/MS or MS, is the
gold-standard drug test for methamphetamine. It is the confirmatory test. Tests like infrared spectroscopy, gas chromatograph, and ultraviolet spectroscopy are considered preliminary tests. If these tests
provide “positive” results, those results should serve as a prompt to conduct a mass spectroscopy test. In a legal sense, infrared spectroscopy, gas chromatograph, and ultraviolet spectroscopy are not conclusive in and of themselves. Says Woodford,
“The mass spectroscopy operates like a safe combination. You need the exact
set of numbers in the proper sequence. The key to determining whether a substance
tests positive or negative depends on what combination / sequence of numbers the testing device’s computer prints out.”
The federal government agrees. By 1988, the
federal government had chosen GC/MS as the required confirmatory test for all drugs including methamphetamine (Federal Register,
Volume 53, No. 69, page 11983, 1988). When the federal government adopted mass
spectroscopy as the required confirmatory test for all drugs, it came as no surprise to crime labs nationwide. Any competent crime lab dedicated to the truth was already using mass spectroscopy. Recall that the substances tested in the Kutynak trial were tested in 1986, but the trial did not unfold
until 1990. In the interim (1988), mass spectroscopy became the required confirmatory
test for all drugs. And John Harris did testify to having conducted a mass spectroscopy
test of the substances related to the case.
The question as to whether John Harris perjured himself when testifying during the Kutynak
trial, and perhaps many other trials, has persisted since 1992. Ken Kutynak became
suspicious after studying the court transcripts while incarcerated. He could
not let go of the Lawson testimony. What did Lawson mean when he said, “…and
also now in our laboratory is mass spectrometer”? Did the Lawson testimony
contradict the Harris testimony? Harris testified, “I tested them by infrared
spectroscopy, mass spectroscopy, gas chromatograph, and ultraviolet spectroscopy on the controlled exhibits methamphetamine
and on the phenylacetone.” How could Harris have conducted mass spectroscopy
if the London, Kentucky lab didn’t have the machine? Was Harris guilty
of perjury? From behind bars, Kutynak set out to find out.
Kutynak retained Attorney Robert G. LeBell then with the law firm Styler, Kostich, LeBell,
Doroski, & McGuire. On February 28, 1996 Attorney LeBell made an open records
request to the Kentucky State Police Records Custodian. The Muckraker Report
obtained a copy of the actual 1996 request letter from Attorney LeBell a few days ago.
LeBell requested copies of all test results and accompanying documents associated with the Kutynak
case. LeBell did not limit his request to documents and tests from
the London crime lab. This is
a very important piece of information, as you will soon discover.
LeBell requested copies of spectrographs, GC/MS line graphs, gas chromatograms, mass spectra,
ultraviolet spectra, infrared spectra, tabulated data for qualitative analysis comparison, any and all graph, chart or other
documented results from tests conducted from which the ultimate opinion was reached regarding identity, all notes, logs, photos,
charts, preliminary reports, comparative study reports, cross-checking results of each test conducted by each examiner, all
print-outs, computer or otherwise, generated by any of the testing of the substances, and any notes or comparative analyses
and reports generated pertaining to color and microcrystalline tests, as well as to calculations of yield.
Clearly, LeBell’s request was not ambiguous.
It was not limited to documents and tests generated by the London crime lab.
It was a request that demanded all lab test results, print outs, notes, logs, and reports associated with the Kutynak
The Muckraker Report obtained a copy of the records the KSP Records Custodian sent to Attorney
LeBell in response to his request. No mass spectroscopy test documentation was
included in the KSP record. However, John Harris testified to having conducted
a mass spectroscopy in the Kutynak case.
On July 8, 2005 Attorney William P. Sturm on behalf of Ken Kutynak made another attempt
to obtain a copy of the mass spectroscopy test that John Harris testified to having conducted.
Strum took it a step further though. Strum requested all lab reports produced
by the Kentucky State Police’s Region 5 Lab in London, Kentucky from January 1, 1986 through December 31, 1989. Sturm did not limit his request to the Kutynak case, however he did limit his request
to the London, Kentucky lab. This is a very important component to this story. The Muckraker Report has secured a copy of the open records request made by Attorney
The Kentucky State Police did balk at the Sturm request because it required the duplication
of thousands of pages of documents. Strum appealed to the court and won. He obtained all lab reports produced by the Kentucky State Police’s Region 5
Lab in London, Kentucky from January 1, 1986 through December 31, 1989. The fact
that Sturm limited his request to the Region 5 Lab in London, Kentucky at one point seemed like a colossal error to the Muckraker
Report while investigating this story. However, the documents that Sturm did
obtain actually make this report complete, as you will soon discover. It should
be noted that the Muckraker Report obtained a copy of the Sturm request prior to obtaining the LeBell request. Clearly, the Sturm request was limited to the Region 5 lab in London, Kentucky, but the LeBell request
The Muckraker Report did obtain from the thousands of pages of documents that Sturm finally received
in 2006 from the Region 5 lab, all of the specific pages that related to the Kutynak case.
They matched what the Kentucky State Police Records Custodian sent to Attorney LeBell 10-years prior in 1996. No record of a mass spectroscopy test being conducted by John Harris could
On June 25, 2007 the Muckraker Report contacted the London, Kentucky KSP lab and inquired
about the mass spectroscopy test that John Harris testified to having conducted. This
test would have been the confirmatory test of the substances associated with the Kutynak case.
The London lab told the Muckraker Report that it does not provide comments to the media. The Muckraker Report was referred to the Kentucky State Police Media Relations.
On June 26, 2007 the Muckraker Report spoke with Lt. Phil Crumpton from the KSP Media Relations
Department. Before asking specific questions about the John Harris testimony
and what appeared to be a missing mass spectroscopy test, the Muckraker Report asked the following background questions:
MUCKRAKER REPORT: Is the Kentucky State Police responsible for oversight of the KSP crime
LT. CRUMPTON: “Yes. KSP is responsible
for state crime labs.”
MUCKRAKER REPORT: Is an employee of a KSP crime lab an employee of the KSP?
LT. CRUMPTON: “Yes, they are state police employees, however, they fall under Technical
Services Division of KSP which is different than Operations Division where patrol and investigation falls.”
MUCKRAKER REPORT: If the KSP suspected an employee of a KSP crime lab to have testified
in court to having conducted tests that he or she did not, how would this suspicion be investigated?
LT. CRUMPTON: “Our internal affairs branch would handle the investigation. If the investigation uncovered a criminal act then a criminal investigation would also be conducted. Prosecutors for any cases that were affected would be notified and once the criminal
case was completed we would present the case to the Commonwealth attorneys office for possible prosecution.”
MUCKRAKER REPORT: What would be the standard
operating procedure that would prompt this type of investigation?
LT. CRUMPTON: “A complaint from a defense
attorney, prosecutor, judge, or internal complaint.”
MUCKRAKER REPORT: What type of evidence would
be required to prompt an investigation?
LT. CRUMPTON: “We would look at any
evidence that pertained to the cases.”
Next the Muckraker Report moved to direct questions about John Harris and his testimony
in the Kutynak case. It was explained to Lt. Crumpton that the Muckraker Report
searched the lab results provided to two different attorneys, one in 1996 and the other in 2006, and the mass spectroscopy
test results that John Harris testified to having conducted and produced could not be located.
Lt. Crumpton stated that he would make a few phone calls to see if he could discover what might have occurred.
A few hours later the Muckraker Report spoke with Lt. Crumpton again. He said he thought he had discovered what happened. He suggested
that the reason the mass spectroscopy test results were not included in the lab reports was because the mass spectroscopy
test related to the Kutynak case was not conducted at the London, Kentucky lab but was most likely conducted at the central
lab in Frankfort, Kentucky. Crumpton explained that if a lawyer makes a request
for documents from a specific lab, the KSP Records Custodian is not going to provide records from another lab. Recall that Attorney Sturm did limit his request to the Region 5 lab in London, Kentucky, thus making the
Crumpton response plausible – absent the LeBell request.
Crumpton informed the Muckraker Report that if the Muckraker Report made an open records
request and didn’t limit it to the London, KY lab, the mass spectroscopy test results would be made available. Bear in mind that at the time of this conversation with Lt. Crumpton, the Muckraker
Report had the lab results obtained by Attorney LeBell and Attorney Sturm along with Sturm’s open request letter. The Muckraker Report had yet to secure the open request letter from Attorney LeBell
so it was unknown on June 26, 2007 whether LeBell limited his request to the London crime lab also. As mentioned earlier in this report, it is now understood that LeBell did not confine his request to a
single lab. This fact seems to nullify the assertion that Lt. Crumpton made regarding
the reason why a copy of the mass spectroscopy in question has yet to surface after all these years.
On June 28, 2007 the Muckraker Report faxed an open records request to the KSP Official Custodian
of Records. In the request it was explained that proof of the mass spectroscopy test in which John Harris testified to having conducted in association with the Kutynak
case be provided. Specifically the Muckraker Report requested as follows:
search lab records associated with case 25-86-203 to include all KYSP crime labs, particularly the Central Lab in Frankfort,
and provide a copy of the mass spectroscopy (sometimes referred to as GC/MS) test in which John Harris testified in 1990 to
having conducted in 1986.
Before addressing the response the Muckraker Report received as a result of its June 28, 2007 open
records request, the following background information needs to be established. After
careful review of the thousands of documents that Attorney Sturm obtained in 2006, it has been determined that the KSP Region
5 lab in London, KY conducted a total of 82 mass spectroscopy or GC/MS tests between January 13, 1986 and November 28, 1988. Eighty-two mass spectroscopy tests – all of which are at least initialed
and dated by the technician that conducted the test. Some also have the case number, exhibit number, and other lab notes written on them. This clearly is KSP crime lab procedure.
In fact, when reviewing the preliminary testing results associated with the Kutynak case, the gas
chromatograph, infrared spectrometer,
and ultraviolet spectrometer print outs obtained by both Attorney LeBell
and Attorney Sturm, each and every printout is dated and initialed, and has lab notes and other markings such as case number
that clearly associate the printouts with a particular case. Again, this is clearly
KSP crime lab operational procedure.
In addition, it must be emphasized that all substances seized in the clandestine laboratory
raid were taken to the Region 5 lab in London, KY. Crime lab procedure dictates
that there must not be a break in the chain of custody of the substances seized. Lt.
Crumpton suggested that the reason the mass spectroscopy test results were not provided in response to previous open records
requests was because the attorneys mistakenly limited their requests to the London, KY lab – a suggestion that cannot
be substantiated as the result of the LeBell open request letter obtained by the Muckraker Report.
However, assuming that the mass spectroscopy test was conducted at another lab such as the central
lab in Frankfort, KSP crime lab procedures must dictate that the substances tested at another lab would have required to be
“checked out” of the Region 5 London Lab. No lab technician can just
grab evidence from one lab and transport it to another to test it without a paper trail.
The whereabouts and handling of the substances – particularly when the substances could result in
the imprisonment of a person for 30 years – cannot venture outside of a firmly
established chain of custody. LeBell clearly requested these types of documents
in his request also. Yet no documentation was provided that demonstrated that
any of the substances related to the Kutynak case where documented and checked out of the Region 5 lab in London, KY and transported
to another lab to have the mass spectroscopy test performed. If Harris actually
did do what Lt. Crumpton suggests he did, conducted the mass spectroscopy test in another KSP crime lab, the lack of chain of custody documentation related to the transportation or shipment of the substances
to another lab demonstrates a potential breach of lab procedure that would render the results of the testing, invalid. When the chain of custody is broken the evidence is tainted because of the real possibility
that it could have been subjected to tampering and/or contamination.
On July 10, 2007 the Muckraker Report received a response in the mail from the KSP Custodian of
Records. It did contain a mass spectroscopy test document. However, the document is invalid because it is undocumented. It is not dated. It is not initialed.
It has no case number written on it. There
is no marking on it whatsoever that associates the document with the Kutynak case. It’s
as meaningless as an unsigned check. It should never stand-up in a court of law.
Click here to examine what a properly documented mass spectroscopy test result
looks like. This test was conducted for another case. Carl Lawson conducted it in the Region 5 lab on March 19, 1986.
Click here to examine what the Kentucky State Police sent the Muckraker Report. This is what the KSP now claims is the mass spectroscopy test that John Harris testified
to having conducted – the mass spectroscopy test that has remained a mystery for over 15 years now. Note the complete lack of
case, analyst, or date identifiers.
Did the Kentucky State Police attempt to misdirect the Muckraker Report investigation? Did the KSP Central Lab provide the KSP Custodian of Records with a mass spectroscopy test that is not associated with the Kutynak case? If
it is the MS test, why was the firmly practiced procedure of initialing and dating the computer print outs departed from in
this one particular instance? And what about the chain of custody? Clearly, the KSP has committed itself to the assertion that this particular test was not conducted at the
Region 5 Lab in London, KY but at another KSP crime lab – most likely the Central Lab in Frankfort, KY. How can anybody be certain that the substances were not contaminated in transport when there is no documentation
of the transfer from lab to lab?
The weight of evidence that suggests that John Harris testified to having conducted a confirmatory
test in which the lack of documentation suggests he did not – merits a full, independent investigation. If the government presented this volume of evidence to a grand jury – the grand jury would easily
return an indictment. To not launch a broad and thorough investigation would
This is not a report about the factual guilt or factual innocence of Ken Kutynak. This is a report about whether a KSP lab supervisor provided false testimony in court,
or failed to follow lab procedures – either of which, if known at the time of the trial, would have resulted in a more
aggressive defense, and most likely, a different jury verdict.
Lt. Crumpton said, “Our internal affairs branch would handle the investigation. If the investigation uncovered a criminal act then a criminal investigation would
also be conducted. Prosecutors for any cases that where affected would be notified
and once the criminal case was completed we would present the case to the Commonwealth attorneys office for possible prosecution.”
We will see. What is certain is that to date, no valid
documentation that supports the testimony of John Harris having conducted a mass spectroscopy test has been provided. No mass spectroscopy documentation was provided to Attorney LeBell in 1996. No mass spectroscopy documentation was provided to Attorney Sturm in 2006.
And No valid mass spectroscopy documentation was provided to the Muckraker
Report last week.
What we now have though is proof of an incomplete and perhaps intentionally deceptive response
to Attorney LeBell’s 1996 open records request, a potential effort to cover-up on the part of the Kentucky State Police,
the possibility of evidence chain of custody procedure violations on the part of the KSP crime lab, as well as lab documentation
requirements ignored as demonstrated by the mass spectroscopy test sent to the Muckraker Report which lacked any date, initials,
or case-related identifiers.
Records should be immediately secured, and an aggressive investigation launched.