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Kentucky State Police admits crime lab mistake


Ed Haas

Kentucky State Police admits crime lab mistake

November 1, 2007 – It has been a stubborn struggle to discover whether former Kentucky State Police Crime Lab Supervisor John Harris provided false testimony during the 1990 Kutynak trail.  Kutnyak 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 30 years in federal prison on May 8, 1990.

On 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.  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. 

 Kenneth 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 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. 

Today, the Kentucky State Police (KYSP) are quick to point out that this case originated twenty-one years ago, that crime lab supervisor John Harris is long since retired, that memories have faded, and that Kutynak is a convicted felon.  However, this Muckraker Report investigation has never been about proving Kutynak’s factual innocence or guilt – it’s about determining whether crime lab misconduct and false testimony occurred.  This investigation has never been about Ken Kutynak.  It’s about the KYSP Crime Lab Division. 

NOW IN OUR LAB IS MASS SPECTROMETER

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.  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).

During the Kutynak trail, Carl Lawson and John Harris of the London KYSP Crime Lab testified for the government.  Carl Lawson testified first.  On page 14 of the transcript, federal prosecutor Francis Catron Thomas asks:

“Now, 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?”

 Lawson replied:

 “Generally 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.” 

It was the last part of the last sentence, “and also now in our laboratory is mass spectrometer” that Kutynak has not been able to let go of after all these years.  Sitting in federal prison preparing his appeal, Kutynak became convinced that the chemicals in which his conviction were hinged, had not been tested by a mass spectrometer.  An apparent contradiction between the Lawson testimony and what Harris said when he was called to the stand, could not be overlooked.

During the trial, in response to a question regarding the types of crime lab testing, John Harris conducted on the substances obtained from the March 6, 1986 raid Whitley City building, Harris testified, “I tested them by infrared spectroscopy, mass spectroscopy, gas chromatograph, and ultraviolet spectroscopy on the controlled exhibits methamphetamine and on the phenylacetone.” 

Because Kutynak was charged in a superseding indictment issued on September 6, 1989 and stood trial in 1990, there was nearly a four-year gap between the crime lab testing and the testimony of Harris and Lawson.  Recall that it was in 1988, when the federal government had chosen GC/MS as the required confirmatory test for all drugs including methamphetamine – two years after the substances in the Kutynak case had been tested. 

Lawson testified in 1990 that the crime lab “now has mass spectrometer”.  Harris testified in 1990 that in 1986, he tested the substances related to the Kutynak case with mass spectrometer.  Kutynak became convinced that a discrepancy existed between the testimony of Lawson and Harris. 

The objective quickly became to prove that the mass spectrometer test was not conducted and that John Harris lied in court.  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.

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. 

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.

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.  In 2006, Sturm received thousands of pages of documents from the archives.  No mass spectroscopy test related to the Kutynak case was found. 

On June 28, 2007 the Muckraker Report faxed an open records request to the KSP Official Custodian of Records.  Specifically the Muckraker Report requested as follows:

Please 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. 

Case number 25-86-203 was assigned to all the cases that resulted from the March 12, 1986 federal indictment of Roy Blakeney and Herbert “Butch” Spencer as well as the September 6, 1989 indictment of Kenneth Kutnyak, James Box, and Roy Blakeney.  All defendants went to trial under case number 25-86-203.  No additional case numbers were assigned. 

Reported mass spectroscopy for Kutynak case.

Note the lack of identifiers. Click for large view.

On July 10, 2007 the Muckraker Report received a response from the KSP Custodian of Records.  It did contain a mass spectroscopy test document.  However, there appeared to be no marking on the document that would anchor it to the Kutynak case.  Considering the fact that Attorney LeBell and Attorney Sturm were not provided this document in 1996 and 2006, suspicions of its sudden appearance, and therefore its authenticity, are prudent rather than paranoid. 

AT THE TIME TESTING WAS COMPLETED

Having had the benefit of reviewing hundreds of crime lab tests conducted by John Harris between 1986 and 1989, the Muckraker Report noted that nearly all of them contained the initials of the lab technician that performed the tests, as well as the date the tests were conducted and the case or lab number.  An interesting note to this story is that for case 25-86-203, two different lab numbers were assigned for what appears to be distinct purposes.  Lab number 86-5-325 was assigned to the technical testing.  86-5-293 was assigned to the narrative that described the outcome of the testing.  86-5-293 can be described as the Kentucky crime lab’s affidavit, but 86-5-325 was assigned to the actual testing.  This distinction will prove significant. 

Dissatisfied with the document that the KSP Custodian of Records provided as evidence that the mass spectroscopy test was conducted for the Kutynak test, the Muckraker Report asked why the document did not contain a date, timestamp, initials, case or lab number, etc. 

According to Emily M. Perkins of the KSP Custodian of Records Commissioner’s Office, the Kentucky State Police did not have the type of equipment at the time of testing that would provide this type of identifying documentation. 

Perkins said, “Be advised that the subject graphs, at the time testing was completed, were printed on perforated reams of paper and, in order to properly store this document on microfilm, it had to be separated from the documents it was attached to in order to complete the microfilming process.  The copies sent to you were printed on microfilm, and the perforation on the paper may have caused the paper to appear uneven at the edges.  Also, please be advised that, at the time this testing was completed, the Kentucky State Police did not have equipment to automatically date/timestamp the graph.” 

London lab (1986) mass spectroscopy test.

Equipment generated ID. Click for large view.

The assertion Perkins makes that at the time this testing was completed, the Kentucky State Police did not have equipment to automatically date/time stamp the graph is completely false.  The KSP Custodian of Records Commissioner’s Office lied in this regarded.  As this mass spectroscopy print out from another case proves, in 1986 the KYSP Crime Lab did indeed have the equipment to automatically date/timestamp the graph.  Note that the handwritten initials are that of John Harris.  Also, the computer printout has additional identifiers such as Data file: DATA: 5-536.D.  The “5” is the lab number.  There are five KYSP Crime Labs in Kentucky.  The London, Kentucky crime lab where John Harris was the supervisor and Carl Lawson worked was lab “5”. 

In addition, the identification stamp on this particular mass spectroscopy test reveals a complete lab number: 86-5-536.  Remember, this is a test from another case.  It is not part of the Kutynak case.  It is referenced only to demonstrate that Perkins and the KSP Custodian of Records Commissioner’s Office made a completely false statement regarding the ability of equipment to print identifiers on mass spectroscopy test printouts in 1986.  This sample document also reveals the Operator: JRH, which are the initials of John Harris, as well as the date and time the London, KY crime lab conducted this particular mass spectroscopy test: 24 Jul 86 at 1:39pm. 

What Example 1 (above / right), and other documents obtained as the result of open record requests, proves is that the London, KY crime lab was conducting mass spectroscopy tests in 1986.  This fact diminishes the significance of the Lawson testimony.  What Lawson meant when he said in 1990, “now in our laboratory is mass spectrometer”, remains unclear and most likely unimportant.  The evidence is that the London, KY lab was conducting mass spectroscopy testing in 1986.  The question is whether the London, KY crime lab was running mass spectroscopy tests on suspected methamphetamine in 1986 and whether John Harris actually conducted a mass spectroscopy test in relationship to case number 25-86-203 – the Kutynak case.

Graph 1 from reported mass spectroscopy test

Data: 293-B1.0 - Click for large view.

On October 10, 2007 the Muckraker Report contacted Major Wayne Mayfield, Commander, Forensic Services for the Kentucky State Police.  When asked why there were no markings on the document reported to be the mass spectroscopy test result that associates the document with the Kutynak case, Mayfield replied, “The graph is associated with the laboratory number 293 and exhibit B1 according to the printout listed.  Laboratory number 86-5-293 is associated with the Spencer case as is exhibit B1.  We have already acknowledged that the graph was not initialed by the chemist and further observation about this oversight would be speculation.” 

This graph is one of three graphs found on the reported mass spectroscopy document provided to the Muckraker Report by KSP Custodian of Records.  Please note DATA: 293-B1.0 found on the top line.  Recall that there is no handwritten initials, date, complete lab number such as 86-5-293, or computer generated timestamp as the example above demonstrates.  In fact, DATA: 293-B1.0 does not indicate the year or the lab location.  A complete lab number would be 86 (year) -5 (London, KY lab) -293 (sequential number assigned to lab assignments). 

Infrared, Gas chromatograph, and UV

Case 25-86-203, Lab 86-5-325, Click to enlarge.

The DATA: 293-B1.0 marking is a weak link to the Kutynak case that is made even weaker by the fact that the infrared spectroscopy, gas chromatograph, and ultraviolet spectroscopy testing conducted in association with case number 25-86-203 were all conducted under lab number 86-5-325.  Why would the London lab conduct the infrared spectroscopy, gas chromatograph, and ultraviolet spectroscopy tests under lab number 86-5-325, but conduct the mass spectroscopy test under lab number 86-5-293? 

Infrared, Gas chromatograph, and UV

Case 25-86-203, Lab 86-5-325, Click to enlarge.

As mentioned, there were two lab numbers assigned to case number 25-86-203: lab number 86-5-325 and 86-5-293.  Based upon review of the records, the narrative documents associated with the case lab work were documented under lab number 86-5-293.  But the actual scientific test results – the equipment printouts – these were documented under lab number 86-5-325. 

Note that the infrared spectroscopy, gas chromatograph, and ultraviolet spectroscopy tests for case number 25-86-203 all have the following information.  Each has the operator’s initials.  Each has a date.  Each has a complete lab number: 86-5-325.  None has the lab number 86-5-293. 

Infrared, Gas chromatograph, and UV

Case 25-86-203, Lab 86-5-325, Click to enlarge.

The Muckraker Report believes the total peculiarity related to the history and discovery of the reported mass spectrometer test for case number 25-86-203 warrants further investigation.  The different lab numbers cannot be easily dismissed.  In response, Major Mayfield said, “I have not seen anything that warrants further investigation.  As previously noted, I am not aware of any formal written protocols that were violated and I have seen nothing to warrant any further investigation.  Considering the complexity and voluminous case file, Mr. Harris did an excellent job of documentation.”  Mayfield continued, “You are also failing to recognize that the laboratory work in this case was quite extensive.  Instead of focusing on one graph, look at the complete report.” 

Mayfield further explained that he was told that it was the “practice” in years past that the operator initial documents such as the GC/MS graphs (mass spectrometer).  In the case of the reported mass spectroscopy printout for case number 25-86-203, Mayfield acknowledges that this was a failure on the scale of a simple oversight. 

Major Mayfield suggests that the Muckraker Report should not be focused on one graph because the laboratory work for case 25-86-203 was quite extensive.  That would be true if the Muckraker Report was investigating the factual innocence or guilt of the accused.  However, this investigation is about potential crime lab misconduct and perjury, and whether there is now an effort underway to cover it up. 

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