Dr. Michael Rickenbach testimony (FBI testing for chloroform items in trunk)

Direct Examination of Dr. Michael Rickenbach by JA

Employed at the FBI as a forensic chemist examiner for 15 years.

Education - 2 BS forensic science and chemistry MS in chemistry PhD in chemistry also has continuing ed

Has been qualified as an expert as a chemist 12 to 15 times mainly in federal jurisdictions.

Witness presented as an expert in the area of forensic chemistry - no objection by JB.

During the break they examined a black trash bag. JB examining the bag. Marked as Exhibit 138 with no objection by JB.

During the break he also looked at the spare tire cover and recognized he had seen it before. Exhibit 139 with no objection by JB.

He also examined another trash bag as having seen it during the break. Item was marked as Exhibit 140 with no objection from JB.

He was also shown a box and agreed he examined it earlier during the break and recognized it was something he had previously received. Item marked as Exhibit 141 with no objection from JB.

He was shown another box and agreed he had examined it. He was also shown a can in a plastic bag and recognized it. Items were marked as Exhibits 142 and 143 with no objection from JB.

He was asked to inspect the items for the presence of chloroform. He did a visual exam after opening each item individually. He looked for staining, then took samples, placed them in sealed vials and did a headspace gas chromatography.

JA gave the witness a copy of his report.

Item Q-22 (Exhibit 143) was a piece of the spare tire cover. He opened the can, observed the material, took a cutting, put it in a sealed vial. When he opened the can, he observed an odor.

Objection by JB.

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Direct Examination of Dr. Michael Rickenbach by JA - CONTINUED

The results of his exam were that residues of chloroform were identified on the specimen.

Regarding Exhibit 141 (Q-44) a piece of spare tire cove, he subjected it to the same analysis. Result was the residue of chloroform were identified on the specimen.

Exhibit 142 (Q-45) subjected to same analysis, resulting in the finding that residue of chloroform were identified on the specimen.

Exhibit 139 (Q-23) - spare tire cover. He tested a fabric portion of it. Results were that residue of chloroform were identified.

Exhibits 140 and 141 (Q24 and Q25) - Q24 - left side of trunk liner. Results were that CHEMICALS consistent of chloroform were identified.

2 techniques used to get positive results. They reinforced each other. "Consistent" only one technique got positive results.

Q-25 - right side of trunk liner - results - consistent with chloroform was detected. Results from left and right - consistent with chloroform, but not conclusive.

End of Direct Examination by JA.

Cross Examination of Dr. Michael Rickenbach by JB

Asked about GCMS - gas chromatography mass spectrometer - examination and identification of chemicals. The FBI's are very sensitive. They detect chemicals out of the matrix of water. The GCMS breaks things down into very very small amounts of chemicals.

The second test was flame ionization - very similar to first test, using a different detector system - headspace.

Q-22 - residues of chloroform - chloroform is usually found in a liquid state. What he received was not liquid. The chloroform can be driven off and detected. The Chloroform was found in very small amounts. It has been detected in household cleaning agents and other household items, including detergents and possibly drinking water. He has never analyzed swimming pool water for chloroform.

He doesn't know if a bathing suit thrown in trunk would produce chloroform.

Objection hypothetical - sustained.

No first hand knowledge as to chloroform in soda.

Usually it has been found in cleaning products - may be other items.

Objection - facts not in evidence - overruled.

A chromatogram is a graphic output from an instrument that is a graph of the signal coming from the instrument based on whether a chemical is detected and the time it is taking for the chemical to come off and be separated.

Witness goes to the easel and asked to draw a chromatogram. He drew an example.

When he runs a sample, you don't get a quantitative amount.

Qualitative analysis - trying to detect the substance you are analyzing - not how much.

Quantitative analysis - numeric amount of substance.

You can't tell an exact quantity from the graph, just relative amounts. Only looking at qualitative amount, without a standard, would not be a good way to quantify.

He analyzed the samples in dual mode - twice - one cutting without an internal standard and another with an internal standard and ran them together. This is not how he determined that they were at very, very low amounts.

With every analysis you run a negative (no sample) and positive control. At the end of the analysis, he ran the positive control for chloroform. Based on the amount, the chloroform that came out of the specimen came out less than the amount he knew he put in.

This was not the most chloroform he has seen in 20 years. It was not shockingly high levels.

Q-22 - piece of spare tire cover - found residue of chloroform - significantly lower levels than chloroform positive control

Q-23 - spare tire cover - found residue of chloroform at significantly lower levels of positive control

Q-24 - left side of trunk liner - chemical consistent with chloroform detected. One test detected it at low levels. Second method did not pick it up - hence consistent with.

Q-25 - right side of trunk liner - also consistent with chloroform - one test at low levels, second test did not pick it up.

Q-44 - piece of spare tire cover - residues of chloroform identified at significantly lower levels than the positive control.

Q-45 - piece of spare tire cover - residues of chloroform identified at significantly lower levels than the positive control.

He tested other items, but not sure where they came from. These were in later batches of submissions.

Steering wheel cover of car?

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Objection by JA - SUSTAINED

Cross Examination of Dr. Michael Rickenbach by JB - continued

Levels that were tested are equal to what has been detected in substances used as cleaning products.

REDIRECT EXAM by JA

Asked if he found any other substances consistent with cleaning products - he did not test for them.

Regarding "very low residue" these are subjective terms.

He has never tested a solid dry object specifically for chloroform. He has used this technique to analyze unknown liquids for chloroform such as product tampering items.

He would need to do a validation study.

Spare tire cover came to him thru the normal channels. How did it come?

Objection by JB- outside scope - overruled.

It was inside a box. The packaging effect?

Objection by JB - outside scope - overruled.

The box is not an air tight container.

Objection by JB - overruled.

He was surprised they got any result for chloroform off the sample because it was in the box. Chloroform does not usually stay around long - it is volatile.

The height of the peaks can be compared to the known sample and that is what he was referring to as to the idea of how much is there. It is not a quantitative analysis.

The positive control was a concentration of 0.01% in water. 100 parts per mil. This is the standard that he compares to to detect the qualitative positive control.

He initially did a qualitative analysis and using the positive control would be the only way to give an "idea" as to the amount.

Regarding Q-22, spare tire cover in air-tight can, this is a better way for this analysis than the box and is the appropriate way to do it.

As to Q-22 - I didn't want to put a number or percent as compared to positive control, however, it was significantly less. In future conversations, he was asked to give percentage - not the appropriate way in science to do it, but he did provide a percentage. He was shown his report and stated the percentage he gave was 5% - not peer or tech reviewed. It is a very rough estimate. 5% of control of 100 parts per million.

As to Q-23 (actual unsealed spare tire cover) - it is approximately .1%.

He agreed the sealed container contained much greater level of chloroform.

Q-44 - carpet sample in sealed container - rough percentage was 1% as compared to positive control.

Q-45 - approx .2%.

Highest concentration is on Q-22, the sealed sample in the can. Must take into account that the amount that he sampled, that he actually cut out, he did not ensure that each sample size was the same. If the sample size varied, the results would vary. Not the best way to relate these numbers.

Chloroform possibly evaporated prior to being put in the can.

If trunk was left open for 6-7 hours, then sealed, then weeks later, the chloroform level would not be expected to be the same....

Objection by JB hypothetical - OVERRULED.

Based on chloroform being volatile, if the container was open, he would expect less concentration than on a closed container.

He has not tested for chloroform in air samples...

Objection by JB as to outside scope - overruled

No first hand knowledge of concentrations of chloroform in air samples.

Prior to this case, his knowledge of chloroform....

Objection by JB as to outside of scope and highly misleading - OVERRULED

His experience is mostly testing chloroform in liquids.

No more questions.

RE-RE CROSS by JB

(Back to the easel)

to give formal amounts of a compounds, doing this way is not the way to do it? Because you don't want to mislead the jury.

Objection by JA - Overruled

He would not want to give an impression of the specific amounts based on the techniques he used because as a scientist he wants to be precise.

He does not have experience in detecting chloroform in a carpet sample prior to this case. Trying to determine if it is there - qualitatively is not the correct way to do it.

Regarding packaging, he has first hand knowledge, the way the evidence is packaged and how it should be packaged. Quantitative amount would be speculation.

REDIRECT by JA

If no legitimate information can be given as to the quantity of chloroform, how can he answer JB's question.

JB objection as to outside scope - overruled

If chloroform can be detected in cleaning items, he meant that the chloroform was detectable.

No more questions by JA.

Witness is excused - subject to recall by the Defense.

10:54

DIRECT EXAMINATION OF DR. MICHAEL RICKENBACH BY JB

He is a forensic chemist examiner at the FBI.

Previously designated as an expert witness in forensic chemistry.

7/6/09 report.

He was given items to test - bottle with liquid, syringe with liquid, unknown substance in bottle.

OBJECTION - items not in evidence - SUSTAINED

SIDEBAR #4 (10:57)

10:54

DIRECT EXAMINATION OF DR. MICHAEL RICKENBACH BY JB

He is a forensic chemist examiner at the FBI.

Previously designated as an expert witness in forensic chemistry.

7/6/09 report.

He was given items to test - bottle with liquid, syringe with liquid, unknown substance in bottle.

OBJECTION - items not in evidence - SUSTAINED

SIDEBAR #4 (10:57-11:02)


12/11/08 report.

He received items from his evidence control unit which came from OCSO. A car seat (Q-47) and a steering wheel cover (Q-48). These were received from the Sunfire.

JA has no objection.

He was asked to test for the presence for chloroform. His results were that chloroform was not identified on either items.

He did not know why the steering wheel cover was requested.

Were you informed that chloroform might have been on someone's hands?

OBJECTION - hearsay and relevance - SUSTAINED

No chloroform was identified on the car seat either. He did not analyze the entire car seat and no chloroform was identified on his cuttings.

7/6/09 report.

He was given...

JA - if item is marked, it should be put into evidence before being discussed.

HHJP - he can say what he has seen.

Box marked as Defense Exhibit 33. It was a doll. He examined the doll for chloroform and he took a sampling. Analysis of the sampling showed no chloroform identified.

No further questions.

CROSS EXAMINATION BY JA

Regarding doll, was there not an earlier indication of chloroform? When analyzing the doll, there were indications that chloroform may be present in very small amounts. He asked for another doll. A co-worker presented a doll. Again, very small amounts were found and he stated there was not enough for him to make a determination.

OBJECTION BY JB

SIDEBAR #5 (11:11-11:13)

The negative control is usually run with the same sample. Because he got indications of possible chloroform, he wanted a negative control doll. He got it and it gave very, very low indications of chloroform also and therefore, he was not comfortable to say chloroform was present. The negative control was a similar doll.

The amounts of chloroform were too small.

No further questions

REDIRECT EXAMINATION BY JB

A co-worker has a doll with chloroform on it? Not what he said.

He did not have enough data to say that chloroform was on either item. Chloroform may have been produced in the manufacture.

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7/6/09 report.

He was asked to analyze the unknown liquid in the gatorade bottle and syringe.

He was shown Defense Exhibit 32 - a photo of the gatorade bottle. The liquid inside was determined to be - could have been a cleaning product and testosterone products were also identified. The syringe also contained testosterone compounds.

The liquid substance was identified by using GCMS and time of flight MS.

He also detected very low levels of chloroform in the liquid in the bottle. He did not report them out because they were at such low levels and could have come from the cleaning product.

JA - testimony was provisional with the items being placed into evidence at some later point.

RE-CROSS EXAM BY JA

He did not report out the chloroform because it was in such a low amount.

The GCMS can't identify a cleaning product, but the components led to the possibility that it could be a cleaning product.

Witness excused. (11:24)