James Shellow on cross-examining drug analysts
On a recent criminal defense lawyers’ listserv thread, a colleague recommended James Shellow’s Cross Examination of the Analyst in Drug Prosecutions (Lexis-Nexis). My colleague who posted on Shellow’s above-listed treatise points out that he was a chemist before going to law school.
Interestingly, Justice Scalia references Shellow, as follows, in his majority opinion in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009):
"While we still do not know the precise tests used by the analysts, we are told that the laboratories use ‘methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs,’ App. to Brief for Petitioner 1a—2a. At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03[c], pp. 532—533, ch. 23A, p. 607 (4th ed. 2007) (identifying four ‘critical errors’ that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard’s Expert& Scientific Evidence Quarterly 593, 600 (1995) (noting that while spectrometers may be equipped with computerized matching systems, ‘forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment’)."
As an aside, I have briefly met Jim Shellow, when he was on faculty for a couple of days at the Trial Lawyers College in 1995. He comes across as a very respectful man with no big ego. From having listened to his in-depth talk there about challenging chemical analyses of alleged drugs, it would appear that he is very thorough with his cross-examinations of chemists. Jon Katz