Exhibit 

A 

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Leslie Merritt, Jr. v. State of Arizona, et. al.

US District Court, District of Arizona No: CV17-4540-PHX-DGC

Fed.R.Civ.P 26(a)(2)(B) Expert Report of Todd J. Weller

October 5, 2018

Introduction

I have been retained by counsel for the plaintiff in Leslie Merritt, Jr. v. State of Arizona, et al., US 

District Court, District of Arizona No: CV17-4540-PHX-DGC. I have been asked to review related 

documents to determine whether the firearm and toolmark examination work performed by 

the Arizona Department of Public Safety (DPS) crime lab, including whether the casework 

violated the professional standards for forensic scientists, and whether the DPS crime lab's 

conclusions are valid and reliable. 

Qualifications

I am the president and owner of Weller Forensics, LLC, a Burlingame, Califonia-based forensic

science consulting firm. I am the current chair of Organization of Scientific Area Committees 

(OSAC) Firearms and Toolmarks Subcommittee and the past-President of the California 

Association of Criminalistics. I am a certified diplomate of the American Board of Criminalistics 

(ABC). I have worked as an independent forensic consultant since October 2016. Before that, I 

was employed as a forensic scientist for over 16 years at the Oakland Police Department. I have

performed firearm and toolmark examinations on thousands of evidence items during my 

career. I have been recognized by the trial courts in California and Missouri as an expert in the 

area of firearms identification.

1

I hold a Bachelor of Arts in Biochemistry/Molecular Biology 

from Dartmouth College and received my Master of Science in Forensic Science from the 

University of California, Davis. I have specialized training and experience in Firearm and 

Toolmark Identification, shooting reconstruction, drug analysis, forensic biology (DNA), crime 

scenes, and crime lab operations.

I am a member of the Association of Firearm and Toolmark Examiners (AFTE), California 

Association of Criminalistics (CAC), and Academy of Forensic Sciences (AAFS). A copy of my CV 

is attached as Exhibit A.

 

1

I have also been recognized as an expert in the areas of DNA analysis, crime scene analysis and drug analysis in 

California trial courts. 

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My current hourly fee for casework, which includes but may not be limited to reviewing 

records, producing reports, and testimony is $150 per hour. Daily rate for travel and/or 

testimony is $2100 plus costs. 

Over the past five years, have testified as an expert witness twenty-three times:2

1. October 2013, Alameda County, CA; Firearms Examination, OPD Case # 12-008473

2. November 2013, Alameda County, CA; Firearms Examination, OPD Case # 11-020181

3. February 2014, Alameda County, CA; Firearms Examination, OPD Case # 10-041583

4. July 2014, Alameda County, CA; Firearms Examination, OPD Case # 12-050675

5. August 2014, Alameda County, CA; Firearms Examination, OPD Case # 13-041987

6. December 2014, Alameda County, CA; Firearms Examination, OPD Case # 13-032775

7. January 2015, Alameda County, CA; Firearms Examination, OPD Case # 13-004548

8. February 2015, Alameda County, CA; Firearms Examination, OPD Case # 12-0066141

9. April 2015, Alameda County, CA; Firearms Examination, OPD Case # 13-041842

10. May 2015, Alameda County, CA; Firearms Examination, OPD Case # 13-039356

11. May 2015, Alameda County, CA; Firearms Examination, OPD Case # 12-066141

12. July 2015 Alameda County, CA; Firearms Examination, OPD Case # 15-020442

13. August 2015, Alameda County, CA; Firearms Examination, OPD Case # 13-016510

14. August 2015, Alameda County, CA; Firearms Examination, OPD Case # 10-013651 & 10-

013775

15. February 2016, Alameda County, CA; Firearms Examination, OPD Case # 14-033602

16. February 2016, Alameda County, CA; Firearms Examination, OPD Case # 12-033289

17. August 2016, Alameda County, CA; Firearms Examination, OPD Case # 13-000861

18. September 2016, Alameda County, CA; Firearms Examination, OPD Case # 11-015824

19. November 2016, Alameda County, CA; Firearms Examination, OPD Case # 13-039356

20. March 2017, Jackson County, MO; Firearms Examination, State of Missouri v. Ceantonyo 

Deqon Kennedy

21. May 2017, San Francisco County, CA; DNA Examination, SFPD Case # 160-987-998

22. January 2018, Alameda County, CA; Firearms Examination, OPD Case # 15-048347

23. July 2018, Alameda County, CA; Firearms Examination, OPD Case # 08-059390

I have authored these articles for publication: 

• Weller T, Zheng A, Thompson R, Tulleners F. The Confocal Microscopy Analysis of Breech 

Face Marks on Fired Cartridge Cases from Ten Consecutively Manufactured Pistol Slides, 

J Forensic Sci, July 2012, Vol 57(4) pp. 912-917.

• Weller T, Brubaker M, Duez P, Lilien, R. Introduction and Initial Evaluation of a Novel 

Three-Dimensional Imaging and Analysis System for Firearm Forensics AFTE Journal, 

2015, Vol 47(4) pp. 198-208

 

2

I have testified a total of thirty-seven times in firearm and toolmark identification since 2008. 

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• Murdock J, Petraco N, Thornton J, Neel M, Weller T, Thompson R, Hamby J, Collins E. 

The Development and Application of Random Match Probabilities to Firearm and 

Toolmark Identification, J Forensic Sci, May 2017, Vol 62(3) pp. 619-625

• Duez P, Weller T, Brubaker M, Hockensmith II R, Lilien R. Development and Validation of 

a Virtual Examination Tool or Firearm Forensics. J Forensic Sci, 2018, Jul;63(4): 1069-

1084. 

Sources of Information

To date, I have reviewed these documents and exhibits:

Court Documents

• 2017-12-08 Second Amended Complaint

• Minute entry in State v. Merritt, CR2015-144211-001, dated 4-25-2016 

AZ DPS Policies and Procedures

• 2015-03-04 SAB GPM 249

• 2015-08-25 AZ376911 Firearms Protocol

• AZDPS SAB QAM 2015

• AZ DPS SAB QAM 2016

DPS Produced Documents

• Chris Kalkowski Photos

• Chris Kalkowski Reports

• Lisa Peloza Reports and Evofinder pptx files

• 2016-06-21 John G. Maciulla Affidavit

Independent Examiner Work Product

• Illustrated Report of April 14, 2016 in matter of State v. Merritt by Lucien Haag.

• John E. Murdock & Associates, Laboratory No. PCF 16-2, dated April 29, 2016.

• U.S. Department of Justice Laboratory Report, by Gregory S. Klees, Lab Number 

16N0177(1) dated April 29, 2016.

Depositions and Exhibits: 

• 2017-10-19 Christopher Kalkowski (October 19, 2017, Exhibits 1-17)

• 2017-06-06 and 2017-08-30 Criminalist and Firearms Examiner, Lucien Haag (Vol 1 June 

6, 2017- Exhibits 1-13) and (Vol II August 30, 2017- Exhibits 14-32)

• 2017-06-13 Criminalist and Firearms Examiner, John Murdock (June 13, 2017- Exhibits 1-

20)

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• 2016-08-23, Det. Trevor Graff Deposition (August 23, 2016)

• 2018-08-24 Vince Figarelli (August 24, 2018; Exhibits 1-14)

• 2018-06-29 Cade Shaw (June 29, 2018; Exhibits 1-8)

• 2018-09-07 John Maciulla (September 7, 2018; Exhibits 1-11)

Additional Documents

• Case Memorandum, dated June 28, 2016, From Ed Leiter and Vanessa Losicco, To Mark 

Faull, Re: Status of I-10 Shooter Case

• ISO/IEC 17025:2005 International Standard, “General requirements for the competence 

of testing and calibration laboratories” 2005-05-15

• ASCLD/LAB-International “Supplemental Requirements for the Accreditation of Forensic 

Science Testing Laboratories” 2011 Edition, November 22, 2011

• the SWGGUN3(Scientific Working Group for Firearms and Toolmarks) “Guidelines for 

the Standardization of Comparison Documentation.” 

• The AFTE Theory of Identification4

The Science of Firearm & Toolmark Examination

The science of firearm and toolmark examination has been practiced for approximately 100 

years.5 The techniques, instrumentation and methods of analysis of the profession were first 

memorialized in textbook format. 6,7,8,9 Additionally much of the foundational knowledge has 

been published in peer-reviewed scientific journals. Nichols wrote a review highlighting some 

of the past research.10 The accepted methodology has been published and generally accepted 

for at least a half of a century. 

Firearm and toolmark examination is a two-part test. The first step involves characterizing any 

class characteristics present on fired evidence. When comparing two items, if discernible class 

 

3

SWGGUN was the predecessor to OSAC. It was a body of subject matter experts (firearms examiners) who wrote 

guidelines for the profession. While these guidelines were not standards (an auditing agency did not use them to 

conduct an audit), they do provide an accepted of minimum standard of practice for the profession. 

4

“Theory of Identification as it Relates to Toolmarks: Revised” AFTE Journal, Volume 43(4) Fall 2011 at pg 287

5 Hamby J “The History of Firearm and Toolmark Identification” AFTE Journal 1999 Volume 31, Number 3 

(Summer), pp. 266-284

6 Gunther, JD, Gunther CO The Identification of Firearms John Wiley & Sons, Inc., New York, New York 1935.

7 Hatcher JS, Jury FJ, Weller J, Firearms Investigation, Identification and Evidence The Stackpole Company, 

Harrisburg, Pennsylvania, 1957

8 Davis J, An Introduction to Tool Marks, Firearms and the Striagraph, Charles C Thomas-Publisher, Springfield 

Illinois, 1958

9 Matthews J, Firearms Identification Volumes I&II Charles C Thomas-Publisher, Springfield, Illinois, 1962.

10 Nichols, R., “Defending the Scientific Foundations of the Firearms and Tool Mark Identification Discipline: 

Responding to Recent Challenges”, Journal of Forensic Sciences, Vol 52(3), May 2007, 586-594.

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characteristics agree, then an examiner will proceed to the second step. If the class 

characteristics disagree, then the items being compared must have originated from different 

sources. The second examination step involves the use comparison microscopy to compare 

individual toolmarks. If an examiner compares two items and observes sufficient agreement of 

individual toolmarks, then the AFTE Theory of Identification states an examiner can conclude

common origin. 

Firearm and toolmark examination is used in every major United States crime laboratory as well 

by international laboratories. The science, when performed using accepted methodology and 

properly trained examiners, has been shown to have low error rates. Examiners have 

participated in numerous error rate studies, and rates of error have been found to be 1.0% or 

less.11,12,13,14,15,16,17,18 

The job of the firearm and toolmark examiner is to use accepted scientific method and 

principles to reach objective and verifiable conclusions consistent with the known facts. One of 

the fundamental concepts of science is reproducibility. A forensic test should be reproducible 

by any similarly trained and competent criminalist. It is because of this concept that forensic 

science is such a powerful and useful tool for the justice system. To allow for reproducibility 

the firearms examiner is trained to take detailed, contemporaneous laboratory notes. The trier 

of fact need not weigh the credibility of a forensic science witness because the documentation, 

testing, and results can be reproduced by a second scientist. 

 

11 Hamby, J.E., Brundage, D.J., and J.W. Thorpe. “The identification of bullets fired from 10 consecutively rifled 

9mm Ruger pistol barrels: a research project involving 507 participants from 20 countries.” AFTE Journal, Vol. 41, 

No. 2 (2009): pp. 99-110

12 Fadul, T.G., Hernandez, G.A., Stoiloff, S., and S. Gulati. “An empirical study to improve the scientific foundation of 

forensic firearm and tool mark identification utilizing consecutively manufactured Glock EBIS barrels with the same 

EBIS pattern.” National Institute of Justice Grant #2010-DN-BX-K269, December 2013

13 Stroman, A. “Empirically Determined Frequency of Error in Cartridge Case Examinations Using a Declared Double 

Blind Format.” AFTE Journal, Vol. 46, No. 2 (2014): pp. 157-175.

14 Maryland B, Tucker C “Validation of Obturation Marks in Consecutively Reamed Chambers” AFTE Journal, Vol 

44(2) Spring 2012, pp. 167-9. 

15 Fadul, T.G., Hernandez, G.A., Stoiloff, S., and S. Gulati. “An empirical study to improve the scientific foundation of 

forensic firearm and tool mark identification utilizing 10 consecutively manufactured slides.” AFTE Journal. Vol. 45, 

No. 4 (2013): pp. 376-93

16 Baldwin, D.P., Bajic, S.J., Morris, M., and D. Zamzow. “A study of false-positive and false-negative error rates in 

cartridge case comparisons.” Ames Laboratory, USDOE, Technical Report #IS-5207 (2014)

17 Keisler, M. “Isolated Pairs Research Study” AFTE Journal, Vol 50(1) Winter 2018, pp56-58

18 Smith, T., Smith, G.A., Snipes, J.B. “A Validation Study of The Bullet and Cartridge Case Comparisons Using 

Samples Representative of Actual Casework.” Journal of Forensic Sciences, 2016, Vol. 61, No. 4: pp. 939-946

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Method of Analysis:

I have reviewed the material and compared the actions of the DPS crime lab to determine 

whether they followed accepted standards of practice in the forensic community. The 

standards followed by reasonable criminalists are contained within: ISO standard 17025:2005, 

ASCLD/LAB Supplemental Requirements 2011 Edition, SWGGUN Guidelines and the AFTE 

Theory of Identification. The written policy, procedure and protocol manuals of DPS such as 

the 2015-03-04 SAB GPM 249; 2015-08-25 AZ376911 Firearms Protocol; AZDPS SAB QAM 2015

in many instances reflect the professional standards in the community.

Summary of Findings:

1. The job of the firearms examiner is to use accepted scientific methods and principles to 

reach objective and verifiable conclusions consistent with the evidence. Under the facts, Leslie 

Merritt's Hi-Point C-9 firearm could not have fired Item DW1. This invalidates the DPS 

conclusion that Leslie Merritt’s firearm was used at each of the shooting scenes.19

Three independent examinations found insufficient agreement to conclude Leslie Merritt’s HiPoint C-9 pistol had fired the recovered bullets. The three Independent analyses agree with 

each other and contradict the DPS conclusion. It is not reasonable to positively identify Leslie 

Merritt’s Hi-Point pistol as having fired the bullets recovered from each of the shooting scenes. 

The DPS misidentification resulted in Mr. Merritt’s arrest. 

2. DPS violated professional standards and department policy numerous times and

communicated erroneous results to law enforcement. The failure to adhere to and enforce

quality assurance standards and procedures likely contributed to the scientific errors in this 

case. 

3. The DPS staff responsible for supervision and enforcement of DPS Quality Assurance 

(QA) program failed to conduct a thorough contemporaneous or post-analysis review analysis. 

Given the unwillingness of DPS to confront the potential quality issues that exist, it is 

reasonable to suspect that errors in other cases have occurred both before and after the DPS 

analysis of the “I-10 Freeway” shootings.

20

 

19 The undersigned is familiar with the civil legal standard of reasonable degree of probability. All findings in this 

report meet or exceed that threshold. 

20 Baldwin, D.P., Bajic, S.J., Morris, M., and D. Zamzow. “A study of false-positive and false-negative error rates in 

cartridge case comparisons.” Ames Laboratory, USDOE, Technical Report #IS-5207 (2014). In this error rate study, 

the authors found that most misidentifications were committed by a small group of examiners. This provides 

evidence that if an examiner is prone to error, he/she may have committed additional errors. 

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Summary of Examinations Performed and Conclusions in the I-10 Freeway Shooting Case.

The Arizona Department of Public Safety (DPS) crime lab system consists of several publicly

operated crime laboratories that provide forensic science analysis for law enforcement 

agencies throughout the State of Arizona. 

This case involved the “I-10 Freeway Shootings”, four shootings which occurred in Arizona on 

these days:

21

-Case # 2015038784: August 29, 2015 at 1103 involving a Cadillac Escalade

-Case # AZ1500010702: August 29, 2015 at 1109 involving a passenger bus

-Case # AZ1500010709: August 29, 2015 at 2215 involving a Kia vehicle

-Case # AZ1500010964 August 30, 2015 between 2145 and 2215 involving a BMW vehicle

On August 31, 2015, DPS crime lab staff analyzed and compared the bullets and bullet 

fragments recovered from three shooting incidents.22 On September 3, an additional bullet was 

submitted to the crime lab.23 DPS staff compared the evidentiary items and concluded bullets 

and fragments from all four incidents were fired in a single firearm with certain class 

characteristics. Based on the rifling characteristics present on some of the fired evidence the 

make and model of the firearm was determined to be a Hi-Point model C9. 

On September 17, 2015, DPS investigators collected 8 Hi-Point C9s from local area pawn shops 

and submitted them to the crime lab. DPS investigators requested the crime lab test and 

examine Leslie Merritt’s firearm first.24

On September 18, 2015, at 8:08 am, laboratory staff called and informed investigators there 

was a definitive match to Leslie Merritt's firearm.25 The laboratory reports that summarized 

these findings are dated October 9, 2015. 

The Hi-Point firearm had been surrendered to the Pawn Shop on August 30 at approximately 

5:31 pm (several hours before the BMW was shot).26 The firearm identified by the DPS crime 

laboratory as having fired the evidence, and specifically Item DW1, could not have been fired by 

 

21 Leslie Merritt vs State of Arizona, Case No.: CV17-4540-PHX-DGC, Second Amended Complaint, Filed 12/08/17, 

at pg 4

22 Case #s 2015038784, AZ1500010702, and AZ1500010709

23 Case # AZ1500010964

24 Deposition of Vince Figarelli, August 24, 2018 at pg 70.

25 Deposition of Trevor Graff, August 23, 2016 at pg 54.

26 Leslie Merritt vs State of Arizona, Case No.: CV17-4540-PHX-DGC, Second Amended Complaint, Filed 12/08/17, 

at pg 7.

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this firearm since it had been surrendered to the pawn shop. In September of 2015, a DPS 

criminalist informed DPS investigators that that it was possible that a bullet/bullet fragment

could have lodged in the side wall of the BMW tire, preventing the tire from deflating for 

days.

27

 

An independent firearm and toolmark examiner, Lucien Haag, was hired by prosecutors to 

review the work performed by the DPS crime lab. Mr. Haag compared the evidence and test 

fires for a month, and met with the primary DPS examiner. Mr. Haag concluded there was an 

insufficient agreement for an identification.28 Mr. Haag also examined the BMW tire and 

testified that a bullet did not become lodged in the side wall of the tire.29 

On or around April 25, 2016, the judge dismissed the criminal charges against Leslie Merritt.30

A second independent firearm and toolmark examiner, John Murdock, compared evidence and 

test fires. This report was dated April 29, 2016 and there was insufficient agreement for 

identification.

31

 John Murdock’s analysis included a detailed review of comparison photographs 

taken by DPS staff. At least one photograph showed that DPS criminalist failed to properly align

the bullets. Mr. Murdock testified this was not correct technique for bullet comparison.32

A third independent firearm and toolmark examiner, Gregory Klees, compared evidence and 

test fires. The report, dated April 29, 2016, concluded there was insufficient agreement for 

identification.33 

 

27 John Maciulla deposition, September 7, 2018 at pg 60. 

28 “The four (4) evidence bullets, AF1, DW1, KG1 and KG2 could neither be excluded or identified as having been 

fired in the Hi-Point C9 Pistol...The areas demonstrated by Mr. Kalkowski on February 29 and illustrated in the note 

packages in his various reports on these shooting incidents, in the opinion of this examiner, were insufficient to 

constitute an identification” Illustrated Report of April 14, 2016 in matter of State v. Merritt by Lucien Haag, bates 

# 014732.

29 Deposition of Lucien Haag, June 6, 2017 at pg 78.

30 Minute entry in State v. Merritt, CR2015-144211-001, dated 4-25-2016 

31 “In summary, there was no agreement found that suggests that any of the four questioned bullets were fired in 

the Merritt Hi-Point pistol as represented by the Independence test-fired bullets T4A, T3B and T4C.” John E. 

Murdock & Associates, Laboratory No. PCF 16-2, dated April 29, 2016

32 “...there was at least one DPS photomicrograph of this same area, and in my opinion, when you line up what 

looks like agreement, the driving edges are not in register, and the driving edge is the benchmark. You always line 

up the driving edges and then you move up and see if you have agreement” Deposition of John E. Murdock, June 

13, 2017 at 108

33 U.S. Department of Justice Laboratory Report, by Gregory S. Klees, Lab Number 16N0177(1) dated April 29, 

2016.

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The crime lab staff performed additional firearm and toolmark examinations. Prosecutors were 

informed of this additional testing on during a meeting on June 16, 2016:

“Ms. Peloza discussed some official and unofficial analyses that she conducted. 

The unofficial analyses were not documented. She also attempted to go through 

the photographs that she used as part of her analysis. During our meeting she 

was unable to decipher one photograph from another. She stated that 'in her 

mind’ the 9mm test fires were the same as the .357 test fires. We have since 

asked for her photographs to be relabeled so that others understood what they 

were. As of the date of this memo, [June 28, 2016] DCAs Losicco and Leiter have 

not received those relabeled photographs 

Ms. Peloza also indicated that she test fired the copper jacketed bullets found in 

Mr. Merritt's home to determine if they could be compared to the evidence 

bullets. Ms. Peloza stated that she did not write a report regarding this event 

because the bullets were "more or less" of no additional assistance to her. Since, 

we have asked Ms. Peloza to author a report regarding this event. As of the date 

of this memo, DCAs Losicco and Leiter have not received a report.”

34

In March or April of 2016, DPS staff transported the evidence to California and conducted 

additional testing using an Evofinder, an instrument used in firearm and toolmark 

examination.

35

 No report was produced regarding the Evofinder testing.

A DPS supervisor produced an affidavit, dated June 21, 2016, indicating that DPS crime lab 

maintains its original conclusion that Leslie Merritt's firearm fired the bullets in the I-10 

Freeway Shooter case.36

FINDINGS

1. DPS Misidentified Merritt’s Firearm and Did Not Consider the Possibility of a 

Misidentification

 

34 Case Memorandum from MCAO Deputy County Attorneys Ed Leiter and Vanessa Losicco, June 28, 2016. Bates # 

AZ469026

35 Deposition of John Maciulla, September 7, 201 at pg 180.

36 John Maciulla Affidavit, dated June 21, 2016, 2 pages.

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Mr. Merritt’s firearm was in a pawn shop during the BMW shooting. It could not have been

used to fire the bullet DW1 (case # AZ1500010964). The conclusion of Identification by the DPS 

crime lab is impossible given the facts. 

The DPS crime lab also concluded that Items KG1 & KG237 (AZ1500010709), KG1 & KG2 

(2015038784), and AF1 (AZ1500010702) were all fired in the same firearm. Mr. Haag also 

concluded that evidence bullets were fired from a single firearm.38 Mr. Haag concluded there 

was insufficient agreement for identification when comparing evidence items to test fires from 

the Hi-Point pistol. This provides evidence that DPS had insufficient data to conclude an 

identification to the Hi-Point for any of the evidence. Mr. Haag’s analysis is supported by two 

additional independent examinations that also concluded there was insufficient toolmark

agreement to reach an identification conclusion. One analysis was conducted by Mr. Murdock 

and the other by Mr. Klees. The evidence has undergone substantial reanalysis. None of the 

re-analysis supports the DPS conclusion that Merritt’s Hi-Point pistol fired the recovered 

evidence. All three independent examiners, Lucian Haag, John Murdock and Gregory Klees, 

reached an inconclusive result. This means that when these examiners compared evidence 

items to test fires from Item 4, they concluded there was insufficient agreement of firearm 

produced marks to reach an opinion of identification. This is different to the Arizona DPS 

results, where it was determined there was sufficient agreement to reach an identification. 

Given the low error rates of the profession, the chance of all three independent examiners 

reaching the same conclusion and all being incorrect is not reasonable. 

DPS staff have argued that conclusions of identification and inconclusive are compatible and do 

not raise concern:

39

“Q. Do you believe -- how do you reconcile Luke Haag's opinion in this case with the DPS 

crime lab's opinion? 

A. Again, it's the same as with the ATF lab. Luke Haag was an inconclusive result. And as 

I said, an inconclusive is not a wrong answer in the world of CTS when we have an 

identification.”40

 

37 Item KG2 under AZ1500010709 was later identified to the Hi-Point pistol, see Bates# AZ138656-AZ138657

38 Deposition of Lucien Haag, Volume II-8/30/2017 at pg 31: “I did inter-compare early on the evidence items and 

was satisfied -- a little stronger than in the slide you have there -- that we are dealing with one gun. So the 

responsible gun leaves reproducible marks. They aren't great, but sufficient to associate one gun with these three 

vehicles: the Kia, the bus, and the BMW.”

39 Deposition of John Maciulla, September 07, 2018 at pg 124

40 This testimony is not accurate. When taking a CTS test and comparing same-source samples, an answer of 

“inconclusive” will be highlighted as incorrect. For an example, see CTS Test 16-527 Summary Report.

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Identification and inconclusive are mutually exclusive conclusions. The suggestion by DPS that 

the science of firearm examination permits examiners to reach an identification while others

reach an inconclusive reflects a mischaracterization of the reliable scientific basis of the 

profession. This would mean that opinions of identification are not as conclusive as typically 

expressed in reports and testimony. One examiner could reach an identification and another 

examiner could conclude inconclusive, and this would be both acceptable and also not 

unexpected. For an “identification” result to be believed to be as a conclusive and correct 

result, then the trier of fact should be convinced that other properly trained examiners would 

also reach the same “identification” conclusion. A summary of sensitivity rates found in 

validations studies is shown in Appendix C. These rates provide strong support that when 

sufficient agreement is present, all reasonable examiners will conclude identification. The type 

of misidentification in the I-10 Freeway Shooter case is extremely rare in the profession. Mr. 

Haag testified this case "has been one of the most troubling and disconcerting endeavors in my 

50-plus years as a criminalist... We should be able to come to the same conclusion when 

examining the same evidence, but we have not."41 The misidentification of Merritt's firearm is 

below the expectation of reasonable forensic scientists. The prosecutor’s office relied on the 

DPS misidentification when deciding to charge Merritt in this case.42

2. DPS Casework Violated Forensic Standards and Department Policy Through the 

Communication of Results and Casework Documentation

The professional standards and forensic laboratory policies of documentation and 

communication are designed to ensure accuracy. 

A. The Verbal Release of Test Results Without Required Review Violated Important 

Laboratory Policy

It is reasonable to expect forensic scientists to release accurate information to law 

enforcement. This is to ensure that law enforcement act only on reliable information. The 

release of inaccurate results can lead to false arrests. DPS recognizes this risk associated with 

preliminary reporting in their policy. 

General Procedures Manual Section 4.6.1 & 4.10

 

41 Deposition of Lucien C. Haag 6/6/2017 at pg124.

42 Case Memorandum from MCAO Deputy County Attorneys Ed Leiter and Vanessa Losicco, June 28, 2016. Bates # 

AZ469024 “When the case was charged, MCAO relied on the ballistics evidence as reported by DPS Criminalist 

Chris Kulkawski [sic]...The circumstantial evidence, although not a perfect fit, was explained by the ballstics 

conclusions and the strength of that evidence.”

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The General Procedures manual provides two routes for the release of testing results. The first 

is through a hard copy report and the second is the release of “preliminary” results via nonhard copy reports (such as telephonic). The General Procedures Manual Section 4.6.1 states 

“The routine dissemination of SAB Scientific Examination Reports is a hard copy to the case 

officer or via secure web release to the officer and/or prosecutor.” The primary method of 

communicating a result of testing is through a written report. This is a reasonable method of 

result dissemination because this ensures that the released information has been peerreviewed (through technical and administrative reviews). However, sometimes, information 

may need be released before all analysis being completed. The DPS General Procedures 

Manual Section 4.10 provides a procedure for “Preliminary Reporting of Examination Results.” 

Section 4.10 states: “Preliminary results may not be released until a technical review has been 

performed and documented in LIMS.” Section 4.10.1 then states that any telephonic/verbal 

communication will include “The test(s) performed are preliminary in nature. The preliminary 

test(s) do not conclusively identify the substance (e.g., drug, semen, etc.) in question. 

Laboratory protocol requires that additional test(s) be completed to conclusively identify the 

substance. The examiner (or designee) will record in the case notes, the date, time, and name 

of the person receiving the preliminary results.”

In the case record for AZ1500010815, are several emails with the subject line “High Point 

Firearm Search Results” (Bates #011974-011977). The content of the emails shows law 

enforcement personnel searching for recovered/impounded Hi-Point firearms. The emails 

mention several times the firearm has 3-Left barrel class characteristics. The emails are dated 

9/3/2015. From the emails police knew, based on the examination of recovered evidence, they 

were searching for a Hi-Point firearm with a three-left class characteristic barrel. The hard copy 

reports associated with this case are dated 10/9/15. Therefore, the police were informed of a 

preliminary conclusion as result of an examination of the evidence. No evidence has been 

provided from the LIMS system to determine that a technical review had been documented per 

Section 4.10.43 There is no written record of the date, time and name of person who received 

the preliminary results. The notes are noncongruent the General Procedures manual Section 

4.10.1 and may also violate section 4.10 (depending on whether technical review had occurred 

and was documented in LIMS). 

The telephone conversation between Christopher Kalkowski and Detective Trevor Graff on 

September 18, 2015 is not recorded in the laboratory case record, as required in General 

 

43 Note: a deposition of DPS staff clouds this issue. See Deposition of Vince Figarelli dated August 24, 2018 at pg 

190: “Q. But if a case file is being presented for an audit, then it would not include information that's solely on 

LIMS; true? A. Well, the tech review is documented in the case file. And that's the official record, and that's the 

important part of the technical review other it's, in fact, tech reviewed.” This answer suggests if a preliminary 

technical review had occurred, then it should be documented in the case file. If this is the case, the undersigned 

does not see documentation of a preliminary technical review, and only the final review occurring in October 2015. 

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Procedures Manual Section 4.10.1.44 Additionally, Section 4.10.1 requires that criminalists 

clarify that “The test(s) performed are preliminary in nature”. No evidence has been provided 

to show this occurred. 

When viewing the date and time for the case records’ photographs, there are only two 

photographs (showing comparison between Item 4 test fires and evidence) with a date and 

time taken before the 8:08 am phone call. The two photos show a comparison between Item 

DW1 and Item 4. Several additional photographs are taken in the afternoon of the same day. 

Given the time of photographs, it is unlikely the technical review of the analysis occurred, as 

required in Section 4.10. The documentation for the comparison of Item DW1 was incomplete: 

no photographs had been taken that show an identification between DW1 and the other 

evidence items. A full technical review should have found this issue, which would have 

required documenting Item DW1 matching the other evidence prior to releasing the conclusion 

that Item 4 had fired bullets at each of the different shootings. DPS staff likely did not follow 

General Procedures Manual Section 4.10 and completed a technical review before releasing 

this information.45 Had the technical review occurred, a competent technical review would 

have noticed the missing documentation. This was a critical moment since a competent 

technical review would have caught the missing documentation and required laboratory staff to 

slow down, re-compare and document the conclusions before releasing results. This would 

have been a chance for the analysts to reevaluate the findings, catch the error and not report 

the misidentification.46 Failing to conduct a competent technical review violated professional 

standards and was a causative factor in reporting the misidentification.

 

44 Quality Assurance Manual Section 5.10.7 also requires that if a report is transmitted by telephone, the 

communication be recorded in the case record.

45 Technical review includes review of the entire case file, and is defined in the DPS Quality Assurance manual on 

page 11: “The review of examination documentation, data, and other documents that form the basis for a 

scientific conclusion.” ASCLD/LAB ISO Supplemental requirements also defines the required components of a 

technical review in Section 5.9.4.1: “Conformance with proper technical procedures (test methods) and applicable 

laboratory policies and procedures; Accuracy of test reports and that the data supports the results and/or 

conclusions in the test report; Associations are properly qualified in the test report; and the test report contains all 

required information.” DPS suggests that verification constitutes a full technical review. See Deposition of Vince 

Figarelli dated August 24, 2018 at pg 191 to 192. But verification is only one part of the technical review and fails 

to satisfy the requirements under GPM Section 4.10. If verification were all that was required by technical review, 

then the case records would not have undergone subsequent technical review before publication. The 

undersigned sees no allowance in DPS policy for partial results based only on verifications. The policy allows only 

for hard-copy release of information or preliminary results. 

46 Once the identification result was released, it appears laboratory (at least some) staff were not open to the 

possibility of being wrong. See Cade Shaw deposition, dated June 29, 2018 at page 140: “Q. Did you, at that point, 

have any room in your mind to consider that Luke Haag, John Murdock, and Gregory Klees from ATF were correct 

and that the crime lab was wrong in making an identification? A. No”

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B. The Written Case Records Violates Forensic Standards by Failing to Support the 

Reported Conclusions

Arizona DPS SAB Quality Assurance manual section 4.13.2.1

Arizona DPS SAB Quality Assurance Manual Section 4.13.2.1 states “Technical records (i.e., case 

records) shall contain sufficient supporting information to facilitate an audit trail and, if 

possible, identify factors affecting the uncertainty and to enable the test to be repeated under 

conditions as close as possible to the original.”47 Two additional forensic standards/guidelines 

provide similar requirements. The first is the ASCLD/LAB Guiding Principles of Professional 

Responsibility for Crime Laboratories and Forensic Scientists part 15:

“Make and retain full, contemporaneous, clear and accurate records of all examinations 

and tests conducted, and conclusions drawn, in sufficient detail to allow meaningful 

review and assessment of the conclusions by an independent person competent in the 

field.”

The second is the SWGGUN48 (Scientific Working Group for Firearms and Toolmarks) 

“Guidelines for the Standardization of Comparison Documentation.” Section 2 states:

“2.1 The case record must contain documentation of observations that support a 

reported conclusion. 2.2 At a minimum, the documentation must include depictions or 

descriptions of the agreement or disagreement of individual and/or class characteristics 

to the extent that another qualified firearm and toolmark examiner, without the benefit 

of the evidence itself, can review the case record, understand what was compared, and 

evaluate why the examiner arrived at the reported conclusion.” 

These standards and guidelines about the level of detail required in forensic documentation are 

fundamentals to the scientific process. Scientific findings are credible because they are 

reproducible. Experiments performed by different scientists at different times and locations

that obtain the same results provide strong evidence that test results are correct. To allow 

testing to be reproduced, a scientist is trained to take detailed, contemporaneous laboratory 

 

47 ISO 17025:2005 section 4.13.2.1 has the same requirement: “The laboratory shall retain records of original 

observations, derived data and sufficient information to establish an audit trail, calibration records, staff records 

and a copy of each test report or calibration certificate issued, for a defined period. The records for each test or 

calibration shall contain sufficient information to facilitate, if possible, identification of factors affecting the 

uncertainty and to enable the test or calibration to be repeated under conditions as close as possible to the 

original.

48 SWGGUN was the predecessor to OSAC. It was a body of subject matter experts (firearms examiners) who wrote 

guidelines for the profession. While these guidelines were not standards (an auditing agency did not use them to 

conduct an audit), they do provide an accepted of minimum standard of practice for the profession. 

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notes. This allows follow-up experiments to be performed using the same methods and same 

conditions. The professional standards and guidelines direct firearms examiners to practice this 

basic tenant of science. They require examiners to take sufficiently detailed notes that a 

second and competent examiner could understand what was done, the basis for conclusions 

and repeat the testing. A review of DPS records found multiple instances where this threshold 

was not met. 

In case # 1500010964, the case notes state Items KG1 & KG2 (2015038784), AF1 

(AZ1500010702), KG1 (AZ1500010709) & DW1 (AZ1500010964) were all identified as having 

been fired in the same firearm and this was verified on September 4, 2015.49 There are no 

photographs50 showing any comparisons between Item DW1 and the other identified 

items. The lack of documentation makes it impossible to review the basis for the conclusion 

(which was reached on September 4) that Item DW1 was fired in the same firearm as Items KG1 

& KG2 (2015038784), AF1 (AZ1500010702), and KG1 (AZ1500010709). This case record is 

noncongruent with DPS SAB Quality Assurance Manual Section 4.13.2.1.

The report for case # 2015038784 states in part “The test shots from Item 4 (AZ1500010815) 

were compared to Items KG1 and KG1 (2015038784). Items KG1 and KG2 (2015038784) were 

identified as having been fired from Item 4 (AZ1500010815).” There are no comparison 

photographs between Items KG1 & KG2 to Item 4. This case record is noncongruent with DPS 

SAB Quality Assurance Manual Section 4.13.2.1. It may be argued that the “Results Summary 

Sheet” corrects this, and points a reviewer to other case notes. In a different case record, 

another evidence was compared to Item 4. However, there is no documentation of comparison 

results between KG1 & KG2 and Item 4. ASCLD/LAB-International “Supplemental Requirements

for the Accreditation of Forensic Science Testing Laboratories” section 5.9.4.1 states that a 

technical review shall include the assessment of examination records to ensure they contain, in 

part, “Accuracy of test reports and that the data supports the results and/or conclusions in the 

test report.” The report for 2015038784 implies that Items KG1 and KG2 were directly 

compared and identified to test fires from AZ1500010815. The case notes fail to support the 

reported result.

51

The report for case # AZ1500010709 states in part “The test shots from Item 4 (AZ1500010815) 

were compared to Items KG1 and KG2 (AZ1500010709). Item KG1 (AZ1500010709) was 

 

49 See bates # 011983

50 Arizona DPS Firearms and Toolmarks Analytical Protocol Section 1.4.2 requires photographs to document the 

basis for an identification conclusion: “Photographically preserve a representative sample of matching marks in 

laboratory notes”. 

51 The case should have stated that Items KG1 & KG2 were compared to AF1 (AZ1500010702). It could then point 

the reader to the case where it was documented that AF1 was compared to Item 4. This would be an accurate 

summary of analysis that is supported by the case record. 

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identified as having been fired from Item 4 (AZ1500010815).” There are no comparison 

photographs between Item 4 and KG1.52 This case record is noncongruent with DPS SAB 

Quality Assurance Manual Section 4.13.2.1 & ASCLD/LAB-International “Supplemental 

Requirements for the Accreditation of Forensic Science Testing Laboratories” section 5.9.4.1.

The case notes fail to support the reported result.

The report for case # AZ1500010815 states “The test shots form Item 4 (AZ1500010815) were 

compared to Items KG1 and KG2 (2015038784), AF1 (AZ1500010702), KG1 thru KG3 

(AZ1500010709) and DW1 (AZ1500010964). Items KG1 and KG2 (2015038784), AF1 

(AZ1500010702), KG1 (AZ1500010709) and DW1 (AZ1500010964) were all identified as having 

been fired from Item 4.” The case record includes only comparison photographs of AF1 to Item 

4 and DW1 to Item 4. There are no comparison photographs to support the connection of 

Items KG1 and KG2 (2015038784) and Item KG1 (AZ1500010709) to Item 4. This case record is 

noncongruent with DPS SAB Quality Assurance Manual Section 4.13.2.1 & ASCLD/LABInternational “Supplemental Requirements for the Accreditation of Forensic Science Testing 

Laboratories” section 5.9.4.1. The case notes fail to support the reported result.

ISO 17025:2015 Section 5.10.1

ISO 17015:2015 section 5.10.1 states “The results of each test, calibration, or series of tests or 

calibrations carried out by the laboratory shall be reported accurately, clearly, unambiguously 

and objectively, and in accordance with any specific instructions in the test or calibration 

methods.”

Similar to ISO 17025:2005 section 4.13.2.1, this Standard is also a reflection of sound scientific 

practice. Where Section 4.13.2.1 requires proper notes and documentation, Section 5.10.1 

requires the complete and clear reporting of testing. This is especially important in forensic 

science because litigation decisions (e.g., should a prosecutor charge a crime, should a judge 

dismiss a case) are often based on the details in a forensic science report. Additional case 

records, such as bench notes, are often not discovered when these decisions are made. To 

properly serve the justice system, forensic sciences are directed to accurately report the testing 

conducted. Toolmark examiners know or should know that the failure to accurately report 

testing may mislead litigators and judges about the proper strength of the evidence and have 

dire consequences on legal advice and decisions. 

The notes for AZ1500010815 include one page53 that describes how Items 1 through 8 (eight 

different Hi-Point firearms) were test fired by a second analyst. It then states “Items 1TF, 1TFA, 

 

52 The case record does support the reported result for Item KG2, and has written description of the comparison 

between KG2 and Item 3, conclusion, and basis for the conclusion. 

53 See Bates # 011969

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2TF, 2TFA, 3TF, 3TFA, 3TFB used for comparisons. 4TF & 4TFA used for comparisons. 4TFB used 

for comparisons & identification.” The result of comparison of Items 1, 2, and 3 to the evidence 

is not included in notes. Additionally, the report for AZ1500010815 does not report on the 

result of the comparison, despite the comparison noted as having occurred. ISO 17015:2005 

section 5.10.1 requires reporting the result of each test or series of tests. 

3. The Quality Assurance Response was Inadequate 

The DPS laboratory has a Quality Assurance program. The purpose of a Quality Assurance 

program and supervision in a lab is to ensure laboratory casework is accurate. When the 

laboratory staff violate the Quality Assurance policy and procedures, or the policy and 

procedures are not enforced, there is greater risk for inaccurate results and laboratory error

such as a toolmark misidentification. In the I-10 Freeway Shooter case, the lack of enforcement 

of the QA policy has allowed the misidentification in this case to fester and remain uncorrected. 

The following items are indicative of an inadequate QA program and lack of supervision and 

enforcement of crime lab policies:

A. Incomplete Scientific Analysis Requests and Documentation

Arizona DPS SAB Quality Assurance Manual Section 4.4.2

Arizona DPS SAB Quality Assurance Manual Section 4.4.2 discusses the review of agency 

requests:

“Within the case record, the SAB maintains records related to the customer request, 

including the ‘Scientific Analysis Request’ form and case-related discussions with the 

customer documented in a communications log.”54

The same section then describes the review of the Analysis Request and the required 

documentation if a modification to the request is made (emphasis added):

“Before analysis begins, a second review is conducted by the laboratory manager, Unit 

Supervisor, or designee to determine if there is anything more specific about the 

request and to determine if the SAB has the capability and resources to perform the 

services requested (i.e., adequate standards, controls and approved test methods). If 

 

54 ISO 17025:2005 Section 4.4.2 has similar language: “Records of reviews, including any significant changes, shall 

be maintained. Records shall also be maintained of pertinent discussions with a customer relating to the 

customer's requirements or the results of the work during the period of execution of the contract.”

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the SAB is unable to provide the requested service, the reviewer will inform the 

customer of this and discuss the possibility of a modified request. If the request cannot 

be modified then a withdrawal report shall be issued. This discussion, including 

modifications accepted by the customer, will be documented in the communications 

log.”

Case requests are important in forensic analysis because they provide the forensic examiner 

guidance on what testing is necessary for the investigation. A properly written case request will 

document what testing is necessary, and therefore when the examiner is assigned to the case, 

the examiner will know what evidence items to test and what forensic testing is needed. 

Failure to submit a sufficiently clear and detailed request can leave the primary analyst in the 

dark on what evidence items need analysis and what questions to answer. A sufficiently clear 

case request has a second benefit, and that is to shield the primary analyst from having to 

contact investigators to seek clarification. This would have the benefit of shielding the analyst 

from irrelevant and potentially biasing information and investigative pressures. The DPS 

Quality Assurance Manual directs supervisory staff, and not primary examiners, to seek and

document modifications to request information. This also has the benefit of shielding 

examiners from ancillary and potentially biasing information.

In the I-10 Freeway shooter case, four of the five Scientific Analysis Requests lack an actual 

request for analysis, while the fifth requests a comparison, but does not describe what the 

evidence should be compared to. 

The Scientific Analysis Request and Evidence Inventory (Bates # 009738) for case 2015038784 

lists “bullet fragments” under the section “describe examination needed for each item and 

priority in which they are to occur if being analyzed by one unit.” “Bullet fragments” is not a 

request for analysis, but only an evidence description. 

The Scientific Analysis Request and Evidence Inventory (Bates # 011978) for case 

AZ1500010815 is blank under the section “describe examination needed for each item and 

priority in which they are to occur if being analyzed by one unit.” 

The Scientific Analysis Request and Evidence Inventory (Bates # 011959) for case 

AZ1500010709 lists “Hold For Evidence” under the section “describe examination needed for 

each item and priority in which they are to occur if being analyzed by one unit.” This is not a 

request for analysis, as it does not tell what type of analysis is requested.

The Scientific Analysis Request and Evidence Inventory (Bates # 011988) lists “DW1, Item 1-

compare bullet projectile to current samples” under the section “describe examination needed 

for each item and priority in which they are to occur if being analyzed by one unit.” While this 

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is a request for analysis, it is not clear what else DW1 should be compared to since this is only 

one evidence item. 

The Scientific Analysis Request and Evidence Inventory (Bates # 011944) lists “HOLD” under the 

section “describe examination needed for each item and priority in which they are to occur if 

being analyzed by one unit.” This is not a request for analysis as it does not explain what type 

of examination should be performed on this evidence. 

In these circumstances, it is reasonable to expect that DPS staff should have followed their 

policy and procedures Section 4.4.2. This directs DPS management to contact the submitting 

investigator(s), modify the request for analysis and then document that modification in a 

communication log. DPS staff failed to do so. Given the subsequent analysis that was

performed in this case, an intercomparison of evidence items, and test firing and comparison to 

test fires, case-related discussion between investigators and laboratory staff must have 

occurred. No communication logs are included in the case files documenting the discussion(s). 

These cases are noncompliant with DPS SAB Quality Assurance Manual Section 4.4.2. 

Had laboratory staff followed their procedures, this analysis could have been treated like any 

other routine case request and the analyst could have had minimal or no contact with 

investigative staff. This would provide the examiner a buffer from potential investigative 

pressures.55,56

B. Failure to Document Verification Method

Arizona DPS Firearms and Toolmarks Analytical Protocol Section 1.10.4

Arizona DPS Firearms and Toolmarks Analytical Protocol Section 1.10.4 states (emphasis added) 

“Each verification shall be documented in the examiner’s notes with the verifier’s initials, date 

and a description of the verification method.” The DPS Firearms and Toolmarks section allows 

for verification via comparison microscopy or review of comparison photographs. Since these 

two methods are permitted, it follows that the method of verification be documented. This 

enables a reviewer of the record to properly understand what was done and the basis for the 

verification. 

 

55 DPS sergeant Birtcher testified that Mr. Kalkwoski was under pressure to make a decision; see Deposition of 

Sergeant Gary Brian Birtcher 3/16/2017 at pg 95-96. Christopher Kalkowski testified he did not feel pressure to 

make an identification. See Deposition of Christopher Kalkowski 10/19/2017 at pg 138. 

56 DPS supervisors are aware of potential negative consequences of pressure on an examination. When asking the 

ATF to reexamine evidence: “Greg Klees was asked to do a complete blind reanalysis of the casework. And added 

to that, the -- the fact that it had been previously looked at, obviously, I didn't want me being there also to add any 

additional pressures to -- to Greg.” John Maciulla Deposition September 7, 2018 at pg 109.

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Each comparison case notes have the same “Results Summary Sheet” dated 17Sep18 through 

18Sep15.57 This sheet summarizes conclusions, namely that case numbers 2015038784, 

AZ1500010702, AZ1500010709 and AZ1500010964 all have evidence that was fired in a HiPoint pistol under case AZ1500010815. This result is verified on 18Sep15. DPS failed to 

describe the method of verification (i.e., direct comparison or photographs) in these notes. 

The “Bullet Worksheet” notes page58 for case 2015038784 indicate Items KG1 & KG2 

(2015038784), and Item AF1 (AZ1500010702) and KG1 (AZ1500010709), were all identified as 

having been fired in the same firearm and this is verified on 03Sep15. DPS failed to record the 

method of verification. 

The “Bullet Worksheet” notes page59 for case AZ1500010709 indicates Item KG1 and Item AF1 

(AZ1500010702) were identified as having been fired in the same firearm and this was verified 

on 02Sep15. DPS failed to record the method of verification.

The “Bullet Worksheet” notes page60 for case AZ1500010964 indicates Item DW1, Items KG1 & 

KG2 (2015038784), Item AF1 (AZ1500010702), and Item KG1 (AZ1500010709) were identified 

as having been fired in the same firearm and this was verified (date appears to be 

04Sep15). DPS failed to record the method of verification.

The “Bullet Worksheet” notes page61 for case AZ15000010702 indicates Item AF1 and Item KG1 

(AZ1500010709) were identified as having been fired in the same firearm and this was verified 

on 02Sep15. DPS failed to record the method of verification.

The notes for each of the five cases fail to record the method of verification. These case notes 

are noncompliant with Arizona DPS Firearms and Toolmarks Analytical Protocol Section 1.10.4. 

The lack of subsequent corrective action in light of these violations indicates an inadequate QA 

program.

C. Failure to Record Contemporaneous Notes

Arizona DPS SAB Quality Assurance Manual Section 4.13.2.2

Arizona DPS SAB Quality Assurance Manual Section 4.13.2.2 states (emphasis added): 

“Observations, data and calculations shall be recorded at the time they are made and shall be 

 

57 See Bates #s 009731, 011965, 011948, 011982, and 011931

58 See bates # 009732

59 See bates # 011949

60 See bates # 011983

61 See bates # 011932

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identifiable to the specific task.”62,63,64 The case documentation, under Arizona DPS Firearms 

and Toolmarks Analytical Protocol Section 1.4.2.,65 requires photographs of matching toolmarks 

where identifications were concluded. The photographs record the areas of agreement and 

the observations made by the primary analyst when reaching a conclusion. By recording 

observations contemporaneously with the analysis, the case record documentation is more 

likely to reflect accurately the analyst’s observations when reaching a decision. Specifically, the 

comparison of microscopic toolmarks requires considerable technique in adjusting lighting and 

samples to properly illuminate, observe and compare the marks. Taking photographs 

contemporaneously, ensures the case record accurately documents what the examiner was 

observing when an identification was concluded. A delay between the conclusion and taking 

photographs risks that the case record no longer accurately reflect what the examiner observed 

when reaching a conclusion. 

Mr. Kalkowski's notes for each of the five cases have photomicrographs showing comparison of 

striated marks on fired bullets and bullet fragments. Many photographs are repeated in more 

than one set of notes. Appendix A lists each comparison photomicrograph, the corresponding 

bates # and the date the photograph was taken as stored in the digital metadata. These 

photographs serve as the primary support for the reported identifications. The metadata 

indicates that Mr. Kalkowski took some photographs on September 20, 2018. It was concluded 

that the Hi-Point pistol had fired evidence items on September 18, 2015 as documented by the 

verification of the conclusion in each of the case notes.66 Mr. Kalkowski notified DPS 

investigators of the alleged identification to Merritt’s firearm on the morning on September 18, 

2015.67

 

62 ISO 17025:2005 has the same requirement: “Observations, data and calculations shall be recorded at the time 

they are made and shall be identifiable to the specific task.”

63 The ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists 

also requires the production of contemporaneous notes (emphasis added): “15. Make and retain full, 

contemporaneous, clear and accurate records of all examinations and tests conducted, and conclusions drawn, in 

sufficient detail to allow meaningful review and assessment of the conclusions by an independent person 

competent in the field.”

64 DPS SAB General Procedures Manual (effective date 03/04/2015) Section 4.2.2 “Case notes shall be taken 

concurrently with the examination of evidence.”

65 Section 1.4.2 states “Photographically preserve a representative sample of matching marks in laboratory notes.” 

66 Most of the photographs taken on September 20 are comparisons of test fire to test fire bullets. The test fire to 

test fire comparisons are performed in order to observe and document the capacity of a particular firearm to 

reproduce marks from bullet to bullet. As documented by Haag and Murdock, test fire to test fire comparisons 

were difficult. Documentation of test fire agreement should have occurred prior to reaching a conclusion of 

identification. 

67 See Deposition of Detective Trevor Graff at pages 52-53.

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The photographs in case notes under AZ1500010964 have photographs dated on September 18 

and September 20.68 However, it was concluded Item DW1 was fired in the same firearm as 

other items on September 4 (see bates # 011983). Therefore, the case required documentation 

occurred 14 and 16 days late, respectively. 

DPS noted some observations and support for their conclusions (in photographs) days 

later. The case notes are noncompliant with professional standards and the Arizona DPS SAB 

Quality Assurance Manual Section 4.13.2.2.69 To ensure accuracy, the photographs supporting 

the conclusions should be recorded when the conclusion is reached. The lack of subsequent 

corrective action in light of these violations indicates an inadequate QA program.

D. DPS Conducted Undocumented Testing

In a memorandum from Maricopa County Deputy County Attorneys Ed Leiter and Vanessa 

Losicco to Mark Faull, dated June 28, 2016, titled “Status of I-10 Shooter Case”, the authors of 

the memo describe a meeting with a DPS staff member to discuss additional testing that had 

occurred in this case:

“Ms. Peloza also indicated that she test fired copper jacketed bullets found in Mr. 

Merritt’s home to determine if they could be compared to the evidence bullets. Ms. 

Peloza stated that she did not write a report regarding this event because the bullets 

were ‘more of less’ of no additional assistance to her. Since, we have asked Ms. Peloza 

to author a report regarding this event. As of the date of this memo, DCAs Losicco and 

Leiter have not received a report”.70

This testing may have been conducted in case report AZ1500010815, dated June 13, 

2016.71,72 There is a mention of Items PM15 and PM5, in which the analyst sought permission 

 

68 Photographs under AZ1500010709 show a comparison between DW1 and KG2 (these are dated September 4), 

however this comparison was determined to be inconclusive and thus does not support an identification 

conclusion. 

69 A DPS staff supervisor argues in a deposition that photographs are “supplemental” to notes, and thus do not fall 

under normal note documentation requirements. See Maciulla deposition dated September 7, 2018 at pg 154. 

This does not conform with DPS QAM Section 4.13.1.1 (emphasis added) “Technical records (i.e. case records) 

include all administrative and examination documentation generated in the processing of a case, including but not 

limited to: the request for scientific analysis, original notes, observations, charges, graphs, photographs, digital 

images, case related communications and laboratory reports.”

70 See Bates # AZ469026

71 See Bates # AZ138656 through AZ138711

72 This additional testing is unusual, since the case request included in the case record is the original submitted by 

investigator Graff on September 17, 2015. The examination request section remains blank. The undersigned is 

unsure, based on the case record, why this additional testing was conducted, or who requested this analysis. 

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from Sgt Mapp to use evidence ammunition for testing.73 There is no record (written or 

photographic) of the result. The report does not mention that evidence ammunition was used 

for testing, nor the result. The result, especially since evidence ammunition was fired, should 

have been reported.74

E. Root Cause Inquiry

DPS supervisory/quality assurance staff knew of Mr. Haag’s reexamination and conflicting 

conclusion.

75

 DPS Quality Assurance staff initiated a Quality Inquiry on April 21, 2016 and the 

Inquiry was closed on July 8, 2016.76 Under the “Root Cause” the inquiry states, in whole:

“Still re-analyzing evidence with new test fires using larger diameter bullets. Images 

were shown to Luke Haag and evidence with test fires will be were [sic] input into 

EvoFinder. I believe all our policies were followed and the analysis was correct. Five 

different examiners from DPS have looked at some if not all the evidence all agree with 

the identification”

From case records, it has been documented three DPS examiners (Kalkowski, Shaw, and Peloza) 

examined or verified the evidence. There is no documentation of which two additional 

criminalists examined the evidence, when these examinations occurred, how much information 

these DPS examiners knew before their examinations and how extensive these reexaminations 

were. A DPS Supervisor testified that he viewed the evidence but produced no report.

77

 

Without documenting and reporting on these additional examinations, it is impossible to assess 

the seriousness of this portion of the inquiry.

DPS fails to address the report and results of Mr. Klees in this inquiry. The reexamination of Mr. 

Klees was initiated by the DPS,78 and the inquiry should have included his analysis. The Quality 

Inquiry also failed to address the reexamination by Mr. Murdock. The Murdock report was 

dated April 29, 2016 and DPS supervisory staff knew Murdock’s results.79 Given the substantial 

independent reexamination of the evidence in this case that resulted in three consensus 

opinions contradictory to the DPS conclusion, the Quality Assurance response found in the 

Quality Inquiry is severely lacking. The type of misidentification in the I-10 Freeway Shooter 

 

73 See bates # AZ138658

74 ASCLD/LAB Supplemental requirements section 4.13.2.2 “NOTE When a test result or observation is rejected, the 

reason(s) should be recorded.” It is a best practice, but not strictly required to include all data in the case record. 

75 Deposition of John Maciulla, September 07, 2018 at pg 123

76 “Quality Inquiry” Bates # AZ377042-AZ377044

77 Deposition of John Maciulla, September 07, 2018 at pg 103-105

78 Deposition of John Maciulla, September 07, 2018 at pg 103

79 Deposition of John Maciulla, September 07, 2018 at pg 117

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case is extremely rare in the profession. The Quality Inquiry fails to resolve these differences of 

opinions and avoids considering the possibility that the original analysis is wrong. The Quality 

Inquiry stated “I believe all of our policies were followed...” and the inquiry notes that no SAB 

Policy was affected. This provides further evidence that the Quality Inquiry was not thorough 

or taken seriously. 

The knowledge of three separate and conflicting reexaminations should have initiated an 

extensive and thorough analysis that considered the possibility and cause of a misidentification. 

By doing so, the DPS laboratory would have discovered, at a minimum, that laboratory staff 

were not following quality assurance policy and producing lower quality casework. The 

unwillingness of the laboratory, faced with three independent examinations and the timing and 

facts, to investigate the cause of error indicates an inadequate QA response that is below the 

professional standards of reasonable criminalists or crime labs. 

DPS could have culture which features selectively choosing what procedures are mandatory. A 

DPS superintendent was asked about whether adherence to verification documentation policy 

was discretionary (emphasis added):

80

Q. And at the subparagraph for 1.10.4, it indicates "Each verification shall be 

documented in the examiner's notes with the verifier's initials, date and a description of 

the verification method." Do you see that?

A. Yes.

Q. Is that a discretionary standard, or is that a mandatory standard?

A. I'm sure there are circumstances under which it would be discretionary.

Nothing is discretionary about Section 1.10.4 of the firearms protocol. The protocol uses the 

term “shall”, indicating this requirement must be followed. The unwillingness of DPS to admit 

to this fundamental concept of forensic standards indicates a flawed approach to management. 

How can we be assured laboratory staff adhere to quality assurance policy and testing 

methodology when laboratory leadership testifies that mandatory procedures are 

discretionary?

One of the fundamental concepts of science is reproducibility. Forensic science is such a

powerful and useful tool for the justice system because a forensic test should be reproducible 

by any similarly trained and competent criminalist. The trier of fact need not weigh the

credibility of a forensic science witness because the testing and results can be reproduced. It is 

reasonable to expect that retesting would get the same result. 

 

80 Deposition of Vince Figarelli, August 24, 2018 at pg 179

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In the “I-10 Freeway Shooting”, the evidence was subjected to retesting initiated by 

prosecutors and the Arizona DPS. All three of the independent retests reached the same 

conclusion: there were insufficient marks for an identification. DPS should have initiated a 

thorough review of what went wrong. The DPS quality inquiry failed to seek the cause of the 

error or identify any laboratory policy violations. Additionally, laboratory staff know the timing 

of the shootings, specifically that the incident involving the BMW occurred after Merritt’s 

firearm had been in the possession of the pawn shop. Given these facts, it is reasonable to 

expect the laboratory to have initiated a thorough review to determine the cause of the 

misidentification. Instead, DPS staff have suggested, performing no testing, that a bullet or a 

bullet fragment lodged in the tire sidewall and prevented the BMW tire from deflating for 

days.81,82 This possibility has been maintained by DPS staff despite contradictory testimony and 

empirical testing by Mr. Haag.83,84 By maintaining this possibility, no matter how unreasonable, 

DPS staff need not acknowledge that a misidentification occurred. The DPS staff have allowed 

the error to remain uncorrected. Given the unwillingness of DPS to confront the quality issues 

that exist, it is reasonable to suspect that errors in other cases could have occurred both before 

and after the DPS analysis of the “I-10 Freeway” shootings. 

Conclusion

The undersigned review of records involved in the “I-10 Freeway Shooting” case found multiple 

instances where the casework was noncompliant with professional standards. This indicates a 

pattern of disregard for laboratory quality assurance policy and procedure. Quality assurance 

policy, such as documenting requests for service, denoting the method of validation, and taking 

contemporaneous notes are not overly burdensome or difficult to adhere to. These policy 

procedures exist so the laboratory casework conforms with international professional quality 

assurance standards. If laboratory staff cannot adhere to routine quality assurance protocols, it 

draws into question what other policy or methodology short cuts will continue. 

Under penalty of perjury, the above information to the best of my knowledge is true and 

correct.

 

81 John Maciulla deposition, September 7, 2018 at pg 96; “Q Do you intend to testify in court regarding your 

opinion about the bullet or fragment lodging in the sidewall of the tire? THE WITNESS: Yes, I would agree that I 

would testify that I do not feel scientifically you can exclude that possibility...Q.· ·Do you have any data specific to 

the BMW tire in the freeway shooting case to support that opinion? A. No, I do not.”

82 Week In Review, September 22-26, 2015 “DPS Ballistics expert reviewed photographs of shootings...He stated 

the bullet could have been lodged in the side of the BWM’s tire for some time tin include August 22-30. He will 

conduct some testing on the run flat tires to understand the dynamics of that particular tire” Bates # AZ302968

83 “Illustrated Shooting Reconstruction Report of May 10, 2016 In the matter of State of Arizona v. Merritt” by 

Lucien C. Haag

84 Deposition of Lucien Haag, 6/6/2017 at pg 78-80.

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October 5, 2018

Completed By Date

Todd Weller

Weller Forensics, LLC

APPENDIX A

Comparison Photographs Included in Notes for Each Case

Photographs in Case # 2015038784

Photo Label Bates # Meta Data Date

KG2 2015038784 to AF1 AZ1500010702 20x near base 009733 9/3/2015 3:52 pm

KG2 2015038784 to AF1 AZ1500010702 20x towards nose 

more purple dot

009733 9/3/2015 4:03 pm

KG1 2015038784 to AF1 AZ1500010702 at same Purple dot 

20x

009734 9/3/2015 4:48 pm

KG1 2015038784 to AF1 AZ1500010702 at same Purple dot 

20x0001

009734 9/3/2015 4:55 pm

KG2 2015038784 ID to KG1 AZ1500010709 30x purple dot 009735 9/3/2015 4:11 pm

TF4A to TF4C (Ind) (AZ1500010815) 20x below purple dot 009736 9/20/2015 4:29 pm

TF4A to TF4C Ind 20x purple dot AZ1500010815 009736 9/20/2015 4:23 pm

Photographs in Case # AZ1500010815

Photo Label Bates # Meta Data Date

TF4A to TF4C (Ind) (AZ1500010815) 20x below purple dot 011966 9/20/2015 4:29 pm

TF4A to TF4C Ind 20x purple dot AZ1500010815 011966 9/20/2015 4:23 pm

AF1 (AZ1500010702) to TF4C) (Ind) (AZ1500010815) 30x 011967 9/18/2015 2:08 pm

AF1 (AZ1500010702) to TF4A (Ind) (AZ1500010815) 20x 

purple dot

011967 9/18/2015 4:57 pm

AF1(AZ1500010702) to TF4A (Ind) (AZ1500010815) 40x 011967 9/18/2015 3:00 pm

DW1 (AZ1500010964) to TS 4C (Ind) (AZ1500010815) 30x-2 011968 9/18/2015 5:07 am

DW1 (AZ1500010964) to TS 4C (Ind) (AZ1500010815) 30x 011968 9/18/2015 5:03 am

DW1 (AZ1500010964) to TF4C (Ind) (AZ1500010815) 20X 011968 9/20/2015 4:51 pm

Photographs in Case # AZ1500010709

Photo Label Bates # Meta Data Date

TF4A to TF4C (Ind) (AZ1500010815) 20x below purple dot 011951 9/20/2015 4:29 pm

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TF4A to TF4C Ind 20x purple dot AZ1500010815 011951 9/20/2015 4:23 pm

AF1 AZ1500010702 to KG1 AZ1500010709 40x feathering 

area

011954 9/2/2015 6:13 pm

AF1 AZ1500010702 to KG1 AZ1500010709 40 feathering area 

2

011954 9/2/2015 7:01 pm

DW1 AZ1500010964 to KG2 AZ1500010709 at 30x (note inc 

conclusion 09Oct1585)

011955 9/4/2015 7:46 pm

DW1 AZ1500010964 to KG2 AZ1500010709 at 30x-2 011955 9/4/2015 7:48 pm

KG2 2015038784 ID to KG1 AZ1500010709 30x purple dot 011956 9/3/2015 4:11 pm

KG2 AZ1500010709 to AF1 AZ1500010702 at 40x (note inc 

conclusion 09Oct1586)

011957 9/11/2015 2:13am

KG2 AZ1500010709 to AF1 AZ1500010702 20x feathering 

area red dot

011957 9/2/2015 4:39 pm

Photographs in Case # AZ1500010964

Photo Label Bates # Meta Data Date

DW1 (AZ1500010964) to TS 4C (Ind) (AZ1500010815) 30x-2 011985 9/18/2015 5:07 am

DW1 (AZ1500010964) to TS 4C (Ind) (AZ1500010815) 30x87 011985 9/18/2015 5:03 am

DW1 (AZ1500010964) to TF4C (Ind) (AZ1500010815) 20x 011985 9/20/2015 4:51 pm

TF4A to TF4C (Ind) (AZ1500010815) 20x below purple dot 011986 9/20/2015 4:29 pm

TF4A to TF4C Ind 20x purple dot AZ1500010815 011986 9/20/2015 4:23 pm

Photographs in Case # AZ1500010702

Photo Label Bates # Meta Data Date

TF4A to TF4C (Ind) (AZ1500010815) 20x below purple dot 011986 9/20/2015 4:29 pm

TF4A to TF4C Ind 20x purple dot AZ1500010815 011986 9/20/2015 4:23 pm

AF1 AZ1500010702 to KG1 AZ1500010709 40x feathering 

area

011935 9/2/2015 6:13 pm

AF1 AZ1500010702 to KG1 AZ1500010709 40x feathering 

area2

011935 9/2/2015 7:01 pm

KG2 2015038784 to AF1 AZ1500010702 20x near base 011936 9/3/2015 3:52 pm

KG2 2015038784 to AF1 AZ1500010702 20x towards nose 

more purple dot

011936 9/3/2015 4:03 pm

 

85 Hand written note; the file name does not include the hand written “note inc conclusion 09Oct15”

86 Hand written note; the file name does not include “note inc conclusion 09Oct15”

87 “TS” labeling appears to be a typo, but unsure since this was not caught/corrected by DPS technical and/or 

administrative review. Same typo appears in sample above. 

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KG1 2015038784 to AF1 AZ1500010702 at same purple dot 

20x

011937 9/3/2015 4:48 pm

KG1 2015038784 to AF1 AZ1500010702 at same purple dot 

20x0001

011937 9/3/2015 4:55 pm

KG2 AZ1500010709 to AF1 AZ1500010702 at 40x (note inc 

conclusion 09Oct1588)

011938 9/11/2015 2:13am

KG2 AZ1500010709 to AF1 AZ1500010702 20x feathering 

area red dot

011938 9/2/2015 4:39 pm

AF1 (AZ15000010702) to TF4C) (Ind) (AZ1500010815) 30x 011939 9/18/2015 2:08 pm

AF1 (AZ15000010702) to TF4A (Ind) (AZ1500010815) 20x 

purple dot

011939 9/18/2015 4:57 pm

AF1 (AZ15000010702) to TF4A (Ind) (AZ1500010815) 40x 011939 9/18/2015 3:00 pm

APPENDIX B

Diagram of Comparison Photographs Documented in C. Kalkowski Case Notes

 

88 Hand written note; the file name does not include “note inc conclusion 09Oct15”

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Appendix C: Sensitivity Rates from Validation/Error Rate Studies Involving Bullets89

Study Authors Sensitivity Rate Number of Participants

Hamby/Brundage90 0.999 507

Murphy, D.91 0.912 Not reported92

Fadul, T et al93 0.991 165

 

89 A forth study, Smith T. et al is not included in this table. Unlike the three listed studies, the Smith study sent 

different kits to examiners, thus it is not of value when discussing if examiners reach the same conclusion of 

identification since they were not necessarily examining items from the same source. 

90 Hamby J. “The Identification of Bullets Fired from 10 Consecutively Rifled 9mm Ruger Pistol Barrels: A Research 

Project Involving 507 Participants from 20 Countries”. AFTE Journal 41(2) Spring 2009, pg 99-110. This study had a 

total of 502 examiners. There was a total of 15 unknowns each with a matching known, thus a total of 7530 

possible identifications (15x502=7530). There were 7522 correct identifications and 8 inconclusives. 

7522/7530=0.999

91 Murphy, D. “CTS Error Rates/1992-2005 Firearms/Toolmarks”. Paper presented at AFTE Annual Training 

Seminar, Henderson NV, May 2010. 

92 The total number of possible identifications was 2020. The study did not report the total number of participants. 

93 Fadul, T. et al “An Empirical Study to Improve the Scientific Foundation of Forensic Firearm and Tool Mark 

Identification Utilizing Consecutively Manufactured Glock EBIS Barrels with the Same EBIS Pattern”. National 

Institute of Justice Grant #2010-DN-BX-K269, December 2013. Available at: 

https://www.ncjrs.gov/pdffiles1/nij/grants/237960.pdf The test consisted of 10 unknowns, 8 of which had a true 

match. Thus 8 true matches x 165 participants=1320 true identifications possible. A total of 8 false positives and 4 

inconclusives were reported for these samples, thus 12 total non-identifications for these samples. 

1308/1320=0.990.

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