Affidavits of Christopher Palenik

The **affidavits of Christopher Palenik** are affidavits signed by Christopher Palenik, who is a microscopy analyst. Palenik's first and second affidavit, both signed on 31 May 2017, were used for Kathleen Zellner's June 2017 *Motion for Post-conviction Relief*. In these affidavits Palenik shares his analysis of several pieces of evidence including bullet FL and the hood latch DNA. Palenik signed a third affidavit on 19 October 2017, about two weeks after the Judge had denied the motion.

## Affidavit of 31 May 2017 (1)

**Now comes your affiant, Christopher Palenik, PhD, and under oath hereby states as follows:**

1. I am of legal majority and can truthfully and competently testify to the matters contained herein based upon my personal knowledge and to a reasonable degree of scientific certainty. The factual statements herein are true and correct to the best of my knowledge, information, and belief.
2. Microtrace, LLC was founded in 1992 and specializes in the characterization and identification of minute amounts of unknown substances and single small particles through a combination of disciplines that span chemistry, geology, biology and materials science.
3. Microtrace staff have contributed to a variety of high profile cases including: the Unabomber, Swiss Air Crash, Narita Airport Bombing (Tokyo), Air India Bombing, Oklahoma City Bombing, the Green River Murders, Jon Benet Ramsey Case, Atlanta Child Murders, "Ivan the Terrible" war crimes trial (Jerusalem), and the kidnapping and murder of DEA special agent "Kiki" Camerena in Mexico.
4. Microtrace staff have conducted analyses and reviews of scientific findings in numerous cases involving trace evidence and have testified for both the prosecution and defense. Our staff have, in addition, perfo1med U.S. National Institute of Justice funded research and published articles and book chapters on various aspects of microscopic trace evidence.
5. The Microtrace laboratory conforms to the same international quality standard (ISO 17025) adhered to by forensic laboratories around the world.
6. Our laboratory, Microtrace LLC, has been retained by counsel for Steven Avery to perform microanalysis on certain items of evidence that were submitted at Mr. Avery's trial: State of Wisconsin vs. Steven Avery (Case No. 05 CF 381).
7. I have prepared this affidavit as a Senior Research Microscopist at Microtrace. I received my MS and PhD in Geology from the University of Michigan. I took a Post Doctoral Fellowship with the Federal Bureau of Investigation, Forensic Science Research Unit. I have published extensively in the field of research microscopy. My professional appointments have included:
a. Chemistry/Instrumental Analysis Scientific Area Committee's (SAC) Materials (Trace) Subcommittee within the Organization of Scientific Area Committees (OSAC) sponsored by the National Institute of Standards and Technology (NIST);
b. North Carolina Forensic Science Advisory Board Member, appointed by the Attorney General of North Carolina;
c. Scientific Working Group for the Analysis of Geological Materials (SWGGEO);
d. UNESCO International Union of Geological Sciences (JUGS) Initiative on Forensic Geology Geological(IoFG) Trace Evidence Advisor. A copy of my CV is attached to this affidavit as **Exhibit A**.

**I. Scientific Findings - Bullet #FL**

**Background and Approach**

8. The purpose of this examination was to determine if evidence of bone could be detected on the surface of bullet #FL.
9. The following analytical approach was utilized:
a. Perform the first in depth photo-documentation and microscopical examination of the #FL bullet. This was conducted by a combination of stereomicroscopy and digital video microscopy, the latter of which was used to produce a map of the bullet surface and the debris adhering to it. The microscopes used were manufactured in 2016.
b. Characterization of the bullet by scaiming electron microscopy and energydispersive x-ray spectroscopy (SEM/EDS). Using the digital images of the bullet surface as a guide, specific areas were examined in detail and analyzed to determine their elemental composition. The inorganic portion of bone is composed almost entirely of calcium, phosphorous and oxygen, all of which are detectable by this approach. The SEM/EDS equipment used was produced in 2016.

**Exemplar Bullet Examination - Proof of Concept**

10. In preparation for this examination, four exemplar bullets, fired through bone by L. Haag, were examined at our laboratory.
a. The exemplar bullets were initially examined and photo-documented by a combination of stereomicroscopy and digital video microscopy to assess the overall condition of the bullet. This initial examination showed the presence of white, translucent particles, consistent with the appearance of bone, on the surface of or embedded in each of the four exemplar bullets.
b. After the initial examination and documentation, the bullets were individually packaged and submitted to Independent Forensics for DNA extraction, to simulate the process to which the #FL bullet had been subjected. Independent Forensics Laboratory Supervisor Liz Kopitke placed each of the damaged bullets in separate test tubes and submerged them in buffer fluid. Ms. Kopitke then shook the test tubes in her hand.
c. The post-extraction exemplar bullets were again examined and photo-documented by a combination of stereomicroscopy and digital video microscopy. This examination showed that white, translucent particles, morphologically consistent with bone, remained on and embedded in each of the four exemplar bullets. That is, the DNA extraction conducted by Independent Forensics, which was meant to simulate the the extraction process #FL was subjected to, did not cause the white, translucent particles consistent with bone to fall or become dislodged from the exemplar bullet
d. SEM/EDS analysis of debris on two of the exemplar bullets showed, as expected, the co-occurrence of calcium, phosphorous and oxygen in areas identified by digital video microscopy as containing white, translucent particles that appeared to be fragments of bone.
11. This study of exemplar bullets demonstrates the following:
a. Particles consistent with bone were detected on each of the four exemplar bullets that were studied.
b. This approach using a combination of stereomicroscopy, digital video microscopy and scanning electron microscopy was shown to be suitable for the *in situ* documentation and identification of bone on a bullet. If indications of bone were detected by these methods, further analytical approaches could be applied to more specifically confirm its presence.
c. Particles consistent with bone were detected on the exemplar bullets after they were subjected to a DNA extraction process meant to simulate the DNA extraction performed on #FL.

**Bullet #FL Analysis**

12. On 23 May 2017, a bullet (M05-2467 #FL) was hand canied to Microtrace by Special Agent Jeff Wisch of the Wisconsin Department of Justice.
13. The bullet remained in the custody of SA Wisch during the analysis performed at Microtrace.
14. The bullet was opened, photo-documented, and examined using a combination of stereomicroscopy and digital video microscopy.
15. This examination revealed that the bullet surface was covered in debris exhibiting the following characteristics:
a. A waxy substance covers a significant portion (~40%) of the leading surface of the bullet. This material may be related to the waxes used by a firearms analysts to orient and hold bullets during their analysis. Further analysis of the waxy material could clarify this point.
b. Numerous, fine red flakes are on or embedded in the waxy substance.
c. Numerous fibers are observed adhering to the waxy substance. Most of these are colorless; however, red and black fiber fragments were also noted. Other white fibers not associated with the waxy surface were observed in association with the bullet. These fibers could be more specifically identified after isolation and further analysis.
d. Numerous wood fragments are present in, on and/or under the waxy substance. Further analysis could elucidate their specific relationship to the waxy substance. Other wood fragments appear to be directly adhering to or embedded in the lead of the bullet. This later observation suggests that at least some of the wood was deposited when the energized bullet encountered a wooden object. Some of the fragments observed are individual particles of wood. One particle appears to be an agglomeration of woody fragments, possibly originating from a manufactured wood product such as chip or particle board. Isolation and analysis of these particles would be required if their specific identity (e.g. species, type of wood product) is of interest.
e. A rounded red droplet (~.073 mm2) adjacent to a smaller red droplet (~0.005 mm2) is present on one side of the bullet. The identity of this dried liquid is presently unknown. Based upon its color and the fact that the bullet was previously extracted for DNA, it seems unlikely that this is blood. The color, texture, and shape of the deposit suggests that the material may be paint. Regardless of it identity, the texture of the bullet in the area where the droplets are observed strongly suggests that the droplet was deposited after the bullet was fired and came to rest. This material could be identified if subjected to further analysis.
f. No particles consistent with bone were detected by an examination using stereomicroscopy or digital video microscopy.
16. Note that the criteria for classification each material described above is based upon *in situ* observations and are not necessarily inclusive of all particle types that may be present. A more thorough examination would require the physical isolation of the debris for a more detailed analysis.
17. The sample was examined without any further preparation in a JEOL 7100FT field emission scanning electron microscope with a 50 mm2 Oxford SDD EDS detector.
a. The base of the bullet was fixed upon a piece of conductive, double sided, carbon tape.
b. An image of the bullet was obtained at 20 kV. The sample was examined by a combination of backscatter and secondary electron imaging at magnifications ranging from ~50x to 2000x.
c. Elemental maps were collected from various areas on the leading surface of the bullet that showed surfaces with exposed lead (i.e., away from the waxy deposit). The elemental maps were examined for areas with elevated levels of calcium and phosphorous. Each area analyzed was rotated toward the EDS detector to increase the number of x-rays detected.
d. No areas with elevated levels of calcium and phosphorous were detected, indicating the absence of detectable bone.
e. A few silicon-rich areas were noted, which may suggest the presence of silicate compounds (e.g., minerals).
f. No particles consistent with bone were detected by SEM/EDS analysis.
18. Following the analysis, the bullet was repackaged, sealed and retained by SA Wisch.

**Conclusions**

19. Based upon the our analyses, there is no evidence to indicate that the bullet passed through bone. In fact, the particulate evidence that is present strongly suggests an alternate hypothesis, which is that the trajectory of the fired bullet took it into a wooden object, possibly a manufactured wood product. Furthermore, the presence ofred droplets deposited on the bullet suggest that the bullet had picked up additional contamination from its environment at some point after coming to rest (i.e., droplets of potential red paint or a red liquid).
20. Based upon these findings, it is our understanding that an investigator was sent by the Zellner Law Office to the Avery garage to review the area for possible sources of the particulate types described above. It is our understanding that the following possible sources were identified:
a. Particle board in the garage with apparent bullet holes.
b. Red painted surfaces including a ladder in the garage and a red painted ceiling.
21. Each of the above listed materials observed on the bullet could be identified specifically, if their actual identity, is of importance to the investigation. This may provide further constraints or refinement of the hypotheses I have advanced. To facilitate this, specimens would need to be isolated from the bullet and analyzed individually. Isolation and analyses could be conducted using only a small portion of the material available. The potential sources for the particulate matter that were recently collected from the Avery garage could be directly compared to materials on the bullet.

## Supplemental affidavit of 19 October 2017

**Now comes your affiant, Christopher Palenik, PhD, and under oath hereby states as follows:**

1. I incorporate ¶¶ 1-18 of my affidavit (P-C Motion Exhibit 48) as if set forth fully herein.
2. The purpose of this supplemental affidavit is to explain to the court certain misinterpretations of my original affidavit made by the court in its order of October 3, 2017.
3. The court appeared to believe that the entire bullet surface had not been examined for the presence of bone. This assumption is incorrect. As I explained in ¶ 15(f) of my original affidavit, "no particles consistent with bone were detected by an examination using stereomicroscopy or digital video microscopy."
4. In addition to the use of stereomicroscopy and digital video microscopy, the bullet fragment was subjected to further analysis by means of scanning electron microscope and energy dispersive x-ray spectroscopy (SEM/EDS) and, as stated in ¶ 17(f), "no particles consistent with bone were detected by SEM/EDS analysis."
5. Based upon my analysis, I offered an opinion based upon a reasonable degree of scientific certainty that the FL bullet did not pass through the skull of Teresa Halbach.
6. This court also misconstrued my statements in ¶ 15(e) regarding my observation of two red droplets on the surface of item FL. I proffered the opinion that the color, texture, and shape of the red droplet deposits suggest that the material may be paint and that it could be tested to identify it. There has never been an issue in the underlying case that the red droplets were blood because, at trial, the forensic analyst Sherry Culhane testified that she had not done a presumptive test for blood nor had she observed any stains on the bullet fragment. She also testified that she had washed the bullet fragment in a solution. The following observations all suggest that the material on the bullet is composed of paint:
　A. The properties of the droplets that were observed;
　B. the fact that bone was not detected on the bullet;
　C. the fact that the bullet had been previously extracted specifically for DNA;
　D. the fact that no indications of blood were previously noted during prior examinations;
　E. the presence of additional bullet holes in the garage where this bullet was found; and
　F. evidence that red paint was used to paint the garage, as well as objects in the garage, which would suggest a source for the bullet.
7. Though this material could be identified by sampling and analyzing the droplets (analyses that were expressly prohibited and outside the scope of my analysis of the bullet), the identity of the material was not pursued further due to the above-listed facts of the case, which together with the lack of any prior indication of blood on the bullet, suggest that these droplets on the bullet are composed of paint.

## See also

* Affidavit of Luke Haag
* List of affidavits for Zellner’s appeals
* *Motion for Post-conviction Relief*