Kentucky State Police crime drylabbing suspicions too great to ignore

 

July 12, 2007 -- According to Double-Tongued Dictionary: a lexicon of fringe English, focusing on slang, jargon, and new words, “drylabbing” is defined as the faking of laboratory test results, especially when the test has not been conducted.  Enter the case of the United States of America vs. Kenneth Kutnyak. 

 

On March 6, 1986 the United States Drug Enforcement Agency (DEA) assisted by Kentucky State Police and local police raided what was described in later testimony as a “great big garage type building” in Whitley City, Kentucky. The DEA suspected that the building contained a clandestine methamphetamine laboratory.  Butch Spencer was suspected of owning and operating the laboratory.  On the front of the raided building appeared signage that read “Butch Spencer Enterprises”.  On March 12, 1986, a federal indictment was returned against Roy Blakeney and Herbert “Butch” Spencer.  Blakeney was a fugitive at such time.  Both men were charged with conspiracy to manufacture methamphetamine, possession with intent to distribute phenylacetone (“P2P”), and possession with intent to distribute methamphetamine. 

 

Kenneth Kutnyak, along with James Box and Roy Blakeney were charged in a superseding indictment issued on September 6, 1989 in the Eastern District of Kentucky.  The government argued that in 1982, Kutnyak, Box, and Blakeney conspired to obtain the ingredient P2P in order to manufacture methamphetamine.  The government alleged that Kutnyak “apparently” procured at least five 55-gallon drums of P2P from abroad and imported the drums to the Minneapolis area, where alleged co-conspirators Wolk and Box lived.  According to the indictment, it is alleged that the drums were subsequently transported to alleged co-conspirator Spencer’s laboratory in McCreary County, Kentucky.  The government contends that Wolk later died while preparing methamphetamine in the suspected clandestine laboratory. 

 

Kutnyak was convicted after a jury trial on February 2, 1990 on counts of conspiracy to manufacture and distribute methamphetamine; possession with the intent to manufacture and distribute phenylacetone; and possession with intent to distribute methamphetamine.  United States District Court Judge Eugene E. Siler sentenced Kutnyak to a total of 30 years in federal prison on May 8, 1990.  Attorney Lee Rowland represented Kutnyak both at trial and through his direct appeal.  Kutnyak’s direct appeal was denied on August 23, 1991. 

 

During the Kutnyak trial federal prosecutor Jane Graham called the supervisor of the London, Kentucky State Police Crime Lab, Mr. John Harris, to the stand to testify on behalf of the government.  Federal prosecutor Francis Catron Thomas examined lab chemist Carl Lawson who also worked in the London, Kentucky lab.  At the time, Kentucky State Police (KSP) had four regional laboratories, and a central laboratory located in Frankfort.  Harris and Lawson accompanied the DEA and state police on the March 6, 1986 raid of the suspected clandestine lab in Whitley City. 

 

The Muckraker Report obtained a copy of the official court reporter transcript of the Harris / Lawson testimony during direct examination by prosecutors Jane Graham and Francis Catron Thomas. 

 

Carl Lawson testified first.  On page 14 of the transcript, federal prosecutor Francis Catron Thomas asks:

 

Now, could you explain a little bit to the Court and jury what types of testing you do with drugs, what kinds of equipment and chemicals you have to be able to use to determine the identity of controlled substances?

 

Lawson replied:

 

Generally we are testing capsules, liquids, powders, plant material to determine the controlled substance content.  And instruments generally used are gas chromatographs and infrared spectrometers and ultraviolet spectrometers, and also now in our laboratory is mass spectrometer. 

 

Particular attention should be paid to the portion of Lawson’s testimony in which he stated that “…and also now in our laboratory is mass spectrometer”.  Recall that the suspected clandestine laboratory was raided in March 1986. Lawson provided his testimony in 1990.  Lab results obtained via open records request in 1996 by Attorney LeBell, and in 2006 by Attorney Strum illustrate that the infrared spectrometer tests, ultraviolet spectrometer tests, and gas chromatographs related to this case were conducted in March 1986.  No mass spectrometer test results were provided. 

 

Mass Spectroscopy is a key component to this story. 

 

On page 192 of the transcript, federal prosecutor Jane Graham asks lab supervisor John Harris:

 

Mr. Harris, in connection with your duties as supervisor of the Kentucky State Police crime lab here, regional crime lab here in London, Kentucky, what are your specific duties, sir?

 

On pages 192-193 of the transcript, Harris responds:

 

Okay.  Again, I am laboratory supervisor, and the laboratory I supervise is a regional laboratory, like you stated.  We have four other regional laboratories and the central lab in Frankfort.  As a supervisor, of course, it’s my duty to see that everything in the laboratory is run properly.  But in addition to the laboratory supervisor, I am also an analytical chemist or drug chemist is what we on the bench call each other.  And as in that particular duty, I’m asked to analyze different powders and liquids and plant materials, pills, tablets, that sort of thing, that the different law enforcement agencies around the State of Kentucky might send me and what they suspect of being some type of a controlled drug under state or local statute or under law.  And I am asked to analyze it and determine what it is, and I write a report back saying yes, it is a controlled drug and this is how it’s found in the law, or no, this is, it’s aspirin or caffeine and something that’s not controlled.  I also am requested on occasion like I was in this case here today to go out and search a clandestine laboratory or analyze the proceeds from one that are brought in to me by the police officer after they search it.  In the past I have done that on a number of occasions. 

 

In regard to the actual testing of the substances seized in the raid, on page 235 of the transcript, KSP crime lab supervisor John Harris testified:

 

I tested them by infrared spectroscopy, mass spectroscopy, gas chromatograph, and ultraviolet spectroscopy on the controlled exhibits methamphetamine and on the phenylacetone. 

 

Please note that Harris testified that he tested the substances seized in the raid by infrared spectroscopy, mass spectroscopy, gas chromatograph, and ultraviolet spectroscopy.  He testified to having conducted a mass spectroscopy test.  Prior to the Harris testimony, Lawson testified that they now have mass spectroscopy in their laboratory.  This raises the question as to whether the London, Kentucky crime lab had mass spectroscopy testing capabilities in its lab in 1986 when it conducted its analysis of the substances related to this case.  It also raises the question as to whether John Harris actually conducted the mass spectroscopy test.  If he did not, then Harris knowingly provided false testimony in a federal court. 

 

What is mass spectroscopy?  The Muckraker Report contacted Dr. James Woodford to find out.  Dr. Woodford has done chemical analysis at Scotland Yard, the U.S. Army Forensic Testing Lab in Wiesbaden, Germany, and state crime labs all over the country.  He is a highly credentialed and respected forensic chemist.  According to Dr. Woodford, mass spectroscopy, also referred to as GC/MS or MS, is the gold-standard drug test for methamphetamine.  It is the confirmatory test.  Tests like infrared spectroscopy, gas chromatograph, and ultraviolet spectroscopy are considered preliminary tests.  If these tests provide “positive” results, those results should serve as a prompt to conduct a mass spectroscopy test.  In a legal sense, infrared spectroscopy, gas chromatograph, and ultraviolet spectroscopy are not conclusive in and of themselves.  Says Woodford, “The mass spectroscopy operates like a safe combination.  You need the exact set of numbers in the proper sequence.  The key to determining whether a substance tests positive or negative depends on what combination / sequence of numbers the testing device’s computer prints out.” 

 

The federal government agrees.  By 1988, the federal government had chosen GC/MS as the required confirmatory test for all drugs including methamphetamine (Federal Register, Volume 53, No. 69, page 11983, 1988).  When the federal government adopted mass spectroscopy as the required confirmatory test for all drugs, it came as no surprise to crime labs nationwide.  Any competent crime lab dedicated to the truth was already using mass spectroscopy.  Recall that the substances tested in the Kutynak trial were tested in 1986, but the trial did not unfold until 1990.  In the interim (1988), mass spectroscopy became the required confirmatory test for all drugs.  And John Harris did testify to having conducted a mass spectroscopy test of the substances related to the case. 

 

The question as to whether John Harris perjured himself when testifying during the Kutynak trial, and perhaps many other trials, has persisted since 1992.  Ken Kutynak became suspicious after studying the court transcripts while incarcerated.  He could not let go of the Lawson testimony.  What did Lawson mean when he said, “…and also now in our laboratory is mass spectrometer”?  Did the Lawson testimony contradict the Harris testimony?  Harris testified, “I tested them by infrared spectroscopy, mass spectroscopy, gas chromatograph, and ultraviolet spectroscopy on the controlled exhibits methamphetamine and on the phenylacetone.”  How could Harris have conducted mass spectroscopy if the London, Kentucky lab didn’t have the machine?  Was Harris guilty of perjury?  From behind bars, Kutynak set out to find out.

 

Kutynak retained Attorney Robert G. LeBell then with the law firm Styler, Kostich, LeBell, Doroski, & McGuire.  On February 28, 1996 Attorney LeBell made an open records request to the Kentucky State Police Records Custodian.  The Muckraker Report obtained a copy of the actual 1996 request letter from Attorney LeBell a few days ago. 

 

LeBell requested copies of all test results and accompanying documents associated with the Kutynak case.  LeBell did not limit his request to documents and tests from the London crime lab.  This is a very important piece of information, as you will soon discover. 

 

LeBell requested copies of spectrographs, GC/MS line graphs, gas chromatograms, mass spectra, ultraviolet spectra, infrared spectra, tabulated data for qualitative analysis comparison, any and all graph, chart or other documented results from tests conducted from which the ultimate opinion was reached regarding identity, all notes, logs, photos, charts, preliminary reports, comparative study reports, cross-checking results of each test conducted by each examiner, all print-outs, computer or otherwise, generated by any of the testing of the substances, and any notes or comparative analyses and reports generated pertaining to color and microcrystalline tests, as well as to calculations of yield. 

 

Clearly, LeBell’s request was not ambiguous.  It was not limited to documents and tests generated by the London crime lab.  It was a request that demanded all lab test results, print outs, notes, logs, and reports associated with the Kutynak case. 

 

The Muckraker Report obtained a copy of the records the KSP Records Custodian sent to Attorney LeBell in response to his request.  No mass spectroscopy test documentation was included in the KSP record.  However, John Harris testified to having conducted a mass spectroscopy in the Kutynak case.

 

On July 8, 2005 Attorney William P. Sturm on behalf of Ken Kutynak made another attempt to obtain a copy of the mass spectroscopy test that John Harris testified to having conducted.  Strum took it a step further though.  Strum requested all lab reports produced by the Kentucky State Police’s Region 5 Lab in London, Kentucky from January 1, 1986 through December 31, 1989.  Sturm did not limit his request to the Kutynak case, however he did limit his request to the London, Kentucky lab.  This is a very important component to this story.  The Muckraker Report has secured a copy of the open records request made by Attorney Sturm. 

 

The Kentucky State Police did balk at the Sturm request because it required the duplication of thousands of pages of documents.  Strum appealed to the court and won.  He obtained all lab reports produced by the Kentucky State Police’s Region 5 Lab in London, Kentucky from January 1, 1986 through December 31, 1989.  The fact that Sturm limited his request to the Region 5 Lab in London, Kentucky at one point seemed like a colossal error to the Muckraker Report while investigating this story.  However, the documents that Sturm did obtain actually make this report complete, as you will soon discover.  It should be noted that the Muckraker Report obtained a copy of the Sturm request prior to obtaining the LeBell request.  Clearly, the Sturm request was limited to the Region 5 lab in London, Kentucky, but the LeBell request was not. 

 

The Muckraker Report did obtain from the thousands of pages of documents that Sturm finally received in 2006 from the Region 5 lab, all of the specific pages that related to the Kutynak case.  They matched what the Kentucky State Police Records Custodian sent to Attorney LeBell 10-years prior in 1996.  No record of a mass spectroscopy test being conducted by John Harris could be found. 

 

On June 25, 2007 the Muckraker Report contacted the London, Kentucky KSP lab and inquired about the mass spectroscopy test that John Harris testified to having conducted.  This test would have been the confirmatory test of the substances associated with the Kutynak case.  The London lab told the Muckraker Report that it does not provide comments to the media.  The Muckraker Report was referred to the Kentucky State Police Media Relations. 

 

On June 26, 2007 the Muckraker Report spoke with Lt. Phil Crumpton from the KSP Media Relations Department.   Before asking specific questions about the John Harris testimony and what appeared to be a missing mass spectroscopy test, the Muckraker Report asked the following background questions: 

 

MUCKRAKER REPORT: Is the Kentucky State Police responsible for oversight of the KSP crime labs?

 

LT. CRUMPTON: “Yes.  KSP is responsible for state crime labs.”

 

MUCKRAKER REPORT: Is an employee of a KSP crime lab an employee of the KSP?

 

LT. CRUMPTON: “Yes, they are state police employees, however, they fall under Technical Services Division of KSP which is different than Operations Division where patrol and investigation falls.”

 

MUCKRAKER REPORT: If the KSP suspected an employee of a KSP crime lab to have testified in court to having conducted tests that he or she did not, how would this suspicion be investigated? 

 

LT. CRUMPTON: “Our internal affairs branch would handle the investigation.  If the investigation uncovered a criminal act then a criminal investigation would also be conducted.  Prosecutors for any cases that were affected would be notified and once the criminal case was completed we would present the case to the Commonwealth attorneys office for possible prosecution.” 

 

MUCKRAKER REPORT:  What would be the standard operating procedure that would prompt this type of investigation?

 

LT. CRUMPTON:  “A complaint from a defense attorney, prosecutor, judge, or internal complaint.”

 

MUCKRAKER REPORT:  What type of evidence would be required to prompt an investigation?

 

LT. CRUMPTON:  “We would look at any evidence that pertained to the cases.” 

 

Next the Muckraker Report moved to direct questions about John Harris and his testimony in the Kutynak case.  It was explained to Lt. Crumpton that the Muckraker Report searched the lab results provided to two different attorneys, one in 1996 and the other in 2006, and the mass spectroscopy test results that John Harris testified to having conducted and produced could not be located.  Lt. Crumpton stated that he would make a few phone calls to see if he could discover what might have occurred.

 

A few hours later the Muckraker Report spoke with Lt. Crumpton again.  He said he thought he had discovered what happened.  He suggested that the reason the mass spectroscopy test results were not included in the lab reports was because the mass spectroscopy test related to the Kutynak case was not conducted at the London, Kentucky lab but was most likely conducted at the central lab in Frankfort, Kentucky.  Crumpton explained that if a lawyer makes a request for documents from a specific lab, the KSP Records Custodian is not going to provide records from another lab.  Recall that Attorney Sturm did limit his request to the Region 5 lab in London, Kentucky, thus making the Crumpton response plausible – absent the LeBell request.

 

Crumpton informed the Muckraker Report that if the Muckraker Report made an open records request and didn’t limit it to the London, KY lab, the mass spectroscopy test results would be made available.  Bear in mind that at the time of this conversation with Lt. Crumpton, the Muckraker Report had the lab results obtained by Attorney LeBell and Attorney Sturm along with Sturm’s open request letter.  The Muckraker Report had yet to secure the open request letter from Attorney LeBell so it was unknown on June 26, 2007 whether LeBell limited his request to the London crime lab also.  As mentioned earlier in this report, it is now understood that LeBell did not confine his request to a single lab.  This fact seems to nullify the assertion that Lt. Crumpton made regarding the reason why a copy of the mass spectroscopy in question has yet to surface after all these years. 

 

On June 28, 2007 the Muckraker Report faxed an open records request to the KSP Official Custodian of Records.  In the request it was explained that proof of the mass spectroscopy test in which John Harris testified to having conducted in association with the Kutynak case be provided.  Specifically the Muckraker Report requested as follows:

 

Please search lab records associated with case 25-86-203 to include all KYSP crime labs, particularly the Central Lab in Frankfort, and provide a copy of the mass spectroscopy (sometimes referred to as GC/MS) test in which John Harris testified in 1990 to having conducted in 1986. 

 

Before addressing the response the Muckraker Report received as a result of its June 28, 2007 open records request, the following background information needs to be established.  After careful review of the thousands of documents that Attorney Sturm obtained in 2006, it has been determined that the KSP Region 5 lab in London, KY conducted a total of 82 mass spectroscopy or GC/MS tests between January 13, 1986 and November 28, 1988.  Eighty-two mass spectroscopy tests – all of which are at least initialed and dated by the technician that conducted the test.   Some also have the case number, exhibit number, and other lab notes written on them.  This clearly is KSP crime lab procedure.

 

In fact, when reviewing the preliminary testing results associated with the Kutynak case, the gas chromatograph, infrared spectrometer, and ultraviolet spectrometer print outs obtained by both Attorney LeBell and Attorney Sturm, each and every printout is dated and initialed, and has lab notes and other markings such as case number that clearly associate the printouts with a particular case.  Again, this is clearly KSP crime lab operational procedure. 

 

In addition, it must be emphasized that all substances seized in the clandestine laboratory raid were taken to the Region 5 lab in London, KY.  Crime lab procedure dictates that there must not be a break in the chain of custody of the substances seized.  Lt. Crumpton suggested that the reason the mass spectroscopy test results were not provided in response to previous open records requests was because the attorneys mistakenly limited their requests to the London, KY lab – a suggestion that cannot be substantiated as the result of the LeBell open request letter obtained by the Muckraker Report. 

 

However, assuming that the mass spectroscopy test was conducted at another lab such as the central lab in Frankfort, KSP crime lab procedures must dictate that the substances tested at another lab would have required to be “checked out” of the Region 5 London Lab.  No lab technician can just grab evidence from one lab and transport it to another to test it without a paper trail.  The whereabouts and handling of the substances – particularly when the substances could result in the imprisonment of a person for 30 years – cannot venture outside of a firmly established chain of custody.  LeBell clearly requested these types of documents in his request also.  Yet no documentation was provided that demonstrated that any of the substances related to the Kutynak case where documented and checked out of the Region 5 lab in London, KY and transported to another lab to have the mass spectroscopy test performed.  If Harris actually did do what Lt. Crumpton suggests he did, conducted the mass spectroscopy test in another KSP crime lab, the lack of chain of custody documentation related to the transportation or shipment of the substances to another lab demonstrates a potential breach of lab procedure that would render the results of the testing, invalid.  When the chain of custody is broken the evidence is tainted because of the real possibility that it could have been subjected to tampering and/or contamination. 

 

On July 10, 2007 the Muckraker Report received a response in the mail from the KSP Custodian of Records.  It did contain a mass spectroscopy test document.  However, the document is invalid because it is undocumented.  It is not dated.  It is not initialed.  It has no case number written on it.  There is no marking on it whatsoever that associates the document with the Kutynak case.  It’s as meaningless as an unsigned check.  It should never stand-up in a court of law. 

 

Click here to examine what a properly documented mass spectroscopy test result looks like.  This test was conducted for another case.  Carl Lawson conducted it in the Region 5 lab on March 19, 1986. 

 

Click here to examine what the Kentucky State Police sent the Muckraker Report.  This is what the KSP now claims is the mass spectroscopy test that John Harris testified to having conducted – the mass spectroscopy test that has remained a mystery for over 15 years now.  Note the complete lack of case, analyst, or date identifiers. 

 

Did the Kentucky State Police attempt to misdirect the Muckraker Report investigation?  Did the KSP Central Lab provide the KSP Custodian of Records with a mass spectroscopy test that is not associated with the Kutynak case?  If it is the MS test, why was the firmly practiced procedure of initialing and dating the computer print outs departed from in this one particular instance?  And what about the chain of custody?  Clearly, the KSP has committed itself to the assertion that this particular test was not conducted at the Region 5 Lab in London, KY but at another KSP crime lab – most likely the Central Lab in Frankfort, KY.  How can anybody be certain that the substances were not contaminated in transport when there is no documentation of the transfer from lab to lab? 

 

The weight of evidence that suggests that John Harris testified to having conducted a confirmatory test in which the lack of documentation suggests he did not – merits a full, independent investigation.  If the government presented this volume of evidence to a grand jury – the grand jury would easily return an indictment.  To not launch a broad and thorough investigation would be criminal. 

 

This is not a report about the factual guilt or factual innocence of Ken Kutynak.  This is a report about whether a KSP lab supervisor provided false testimony in court, or failed to follow lab procedures – either of which, if known at the time of the trial, would have resulted in a more aggressive defense, and most likely, a different jury verdict. 

 

Lt. Crumpton said, “Our internal affairs branch would handle the investigation.  If the investigation uncovered a criminal act then a criminal investigation would also be conducted.  Prosecutors for any cases that where affected would be notified and once the criminal case was completed we would present the case to the Commonwealth attorneys office for possible prosecution.” 

 

We will see.  What is certain is that to date, no valid documentation that supports the testimony of John Harris having conducted a mass spectroscopy test has been provided.  No mass spectroscopy documentation was provided to Attorney LeBell in 1996.  No mass spectroscopy documentation was provided to Attorney Sturm in 2006.  And No valid mass spectroscopy documentation was provided to the Muckraker Report last week.

 

What we now have though is proof of an incomplete and perhaps intentionally deceptive response to Attorney LeBell’s 1996 open records request, a potential effort to cover-up on the part of the Kentucky State Police, the possibility of evidence chain of custody procedure violations on the part of the KSP crime lab, as well as lab documentation requirements ignored as demonstrated by the mass spectroscopy test sent to the Muckraker Report which lacked any date, initials, or case-related identifiers. 

 

Records should be immediately secured, and an aggressive investigation launched.