Trial - Day 3

Trial – Day 3 Events:

The day started with continuation of the ATF EOD expert testimony. Several more improvised fragmentation grenades were introduced into evidence. The expert determined that all of the small cans of black powder with fuses inserted into the lids were classified as destructive devices. Cans that didn’t have fuses were not classified as destructive devices. The expert also explained and showed on a plan view of the property were his team setup bomb disassembly stations and explained how the destructive devices were disassembled.

In an unusual deviation from normal trial procedure, the judge allowed the defense to call a witness “out of order” because the witness was going on vacation next week and would not be available. The judge instructed the jury as to what was going on and allowed the defense witness to be call to the stand. The defense witness was the technical leader of the ATF DNA LAB who performed and oversaw the DNA sample collection and testing for the evidence sent to his lab from the Brown's. The expert explained how simply touching items will leave small remnants of DNA on the item that could then be collected months later and tested. He explained how DNA profiling is extremely reliable at including a person or excluding a person as a contributor of the DNA material that was collected and tested. The expert was given all the pipe bombs, improvised fragmentation grenades and firearms that were at the Browns house, over 100 items in total. DNA samples were obtained from 20 out of the 100 items. The lab collected the samples by swabbing various points on the items (e.g. the end caps of pipe bombs, the lids of black powder cans, the trigger area of a firearm, the eye piece of a rifle scope etc.). His reports from this testing conclusively EXCLUDED all the defendants. NO MATCHING DNA WAS FOUND. On cross examination it was also reveal that law enforcement DNA was detected on some of the items indicating the some evidence contamination had occurred.

Several witnesses were called from the various stores where weapons were allegedly purchased. Each witness was used to establish foundation so ATF 4473 (gov’t background check) forms from each of the purchases could be entered into evidence. The first ATF 4473 form was for a purchase of a 12 gauge shotgun made at a Sports Authority store on Long Island in the name of Jason L. Gerhard. This form showed that Jason passed the background check and legally obtained this firearm. Another store clerk witness from a Wal-Mart in Middle Island, NY talked about an ATF 4473 form of the purchase of another 12 gauge shotgun made by a person named Justin Martin Gerhard. This form showed that the person passed the background check and legally obtained the weapon. On cross examination of this witness, the defense produced the NY State driving record of one Justin Martin Gerhard with the same birth date as Jason L. Gerhard. This made it look like a case of mistaken identity and cast doubt on the relevance of that form. A third witness was used to introduce an ATF 4473 form from the purchase of a FEG KBI weapon at a store in Maryland back in 1998 by Daniel J. Riley. This form showed that the background check was passed and the weapon was legally purchased.

The prosecution then wheeled in a cart with several of the weapons collected at the Brown’s, including two 50 cal firearms, several shotguns and smaller caliber weapons. The ATF field tech that oversaw the weapons collection at the site was called to the stand. The prosecution then brandished the weapons in front of the jury, one at a time, in a highly inflammatory way and had the ATF witness match photos taken at the scene with each weapon. On cross examination it was noted that one of the 50 caliber rifles was found with no scope and no iron sights on the weapon, rendering it useless for any kind of effective target shooting.

Another ATF witness was called who was an expert in firearms and tool markings from the ATF lab outside of Washington DC. It was noted that the serial number on the FEG weapon found at the Brown’s had been removed. The ATF lab was able to fully restore the serial number for this weapon through various lab techniques. The witness explained the nature of serial numbers and the various lab techniques used to restore an obliterated serial number.

End of day 3.