UNITED STATES v STARZECPYZEL, 93 Cr 553 (LMM), 880 Fed.Sup. 1027 (S Dist N.Y. 1995)

Following is a much abbreviated version of my notes on testimony regarding forensic handwriting identification in United States v Starzecpyzel. Page and line numbers are to the official transcript of testimony.

We begin with the in limine hearing pursuant to Daubert v Merrell Dow Pharmaceuticals, Inc., Schuller v Merrell Dow Pharmaceuticals, Inc.,727 Fed.Sup. 570 (S. D. Cal. 1989); affirmed, 951 F.2d 1128 (9 Cir 1991); vacated and remanded, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993); affirmed, 43 Fed.3d 1311 (9 Cir 1995); cert. denied, — US –, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). Defense counsel endeavored to exclude the testimony of the handwriting expert for the government. The ruling after the in limine hearing was issued by Judge Lawrence M. McKenna of Federal District Court, Southern District, New York, on April 03, 1995.

IN LIMINE TESTIMONY OF MARY WENDEROTH KELLY 

Kelly was president of American Board of Forensic Document Examiners (ABFDE) for 1995-1997. At the time of the hearing she was vice president of ABFDE and chair of the testing committee, supervising the testing of candidates for certification. Thus one can safely assume she was one of the very best certified by ABFDE. Her employment was as a document examiner with City of Cleveland Police Forensic Laboratory.
 Kelly gave several purported principles of handwriting identification.

1. First was that no two people write exactly alike.
 However, there have been documented cases where two people did not have significant differences between them. Even if this principle be true, the expert still must prove that this person’s writing can be identified and that this questioned handwriting can also be identified. See footnote 3 in United States of America; Government of the Virgin Islands v Velasquez, 64 Fed.3d 844, 33 V. Is. 265 (3 Cir 1995).

2. Second was that no person will write exactly the same way when repeating, there being a “natural variation.” She asserted that no two signatures by the same person are written “exactly the same way.”
 Indeed, there have been people who write super-imposable signatures in the original meaning of no more deviation than a tracing involves. Now only one molecule need be out of place to prove this sophistry.

3. She said an adequate amount of exemplars are needed because natural variation must be established.
 Unfortunately, she never stated what an adequate amount is or how to determine it.

4. She said different types of forgeries (tracings, simulations) have unique characteristics.
 Well, yes and no, but only to the degree that the forger is unskilled.

5. She said the examiner goes from observing general characteristics (slant, speed, size) to specific characteristics (subtle fine details).
 But “subtle fine details” are of slant, speed, size, etc.

6. Her primary pieces of equipment are stereo microscope, various types of handheld magnifiers and types of lighting. Writing traits are “not easily discernable [sic] with the naked eye.”
 That all depends on the particular case and the skill of the particular examiner. As Albert S. Osborn said, some things are as plain as the nose on your face.

7. She offered several texts that she relied on: James V. P. Conway, Wilson R. Harrison, Ordway Hilton, Questioned Document Problems by Albert S. Osborn, and Scientific Examination of Documents: Methods and Techniques by David Ellen, 1989.
 My notes on the last text begin: “After ample demonstration of his ignorance of handwriting, he devotes the balance of the book to superficial mention of every topic of which he can seemingly conceive.” The third edition in 2006 was of some modest improvement.

There is a Freudian slip on page 49, lines 20-21, regarding documents supporting applications for certification by ABFDE: “[A]nd then there also be letters of recommendation that go to the character and reputation and the moral turpitude of the prospective candidate.”

Pages 66-68 report cross-examination re muscle movement. The witness misses the question of how, looking at the finished product, does one determine the muscle movement employed. The human graphic motor sequence should have been one of her principles of identification.

On page 85, lines 23, et seq., she states that use of guidelines depends on training and expertise, but her training and expertise do not permit her to state any specific guidelines for every situation that comes up so that we can tell what to do specifically in case-specific situations, which seem to be all cases.

On page 90 she says that someone might need one page of writing and another five pages to determine range of variation. This begs the question as to what guideline tells you that you have enough to determine range of variation.

On page 99, lines 2, et seq., the witness cannot say what “significant” means, what makes it so.

On page 133 starts the discussion of the paper by John J. Harris, “How much do people write alike?” 48 Journal of Criminal Law, Criminology and Police Science, 339-42 (Sept.-Oct. 1957). What the witness missed in her first principle is that, given an extensive enough writing, one person cannot imitate another without breakdown. Given single, short signatures, with a skilled imitator there might be no significant differences.

On pages 147, etseq., is an example of the muddle created by improper terminology. The witness uses “variation” for what is not the same within one person’s writing. She uses “difference” for what is not the same between two persons’ writing. Her usage is correct, while the judge, attorneys and defense witnesses use both terms for what is not the same within a single person’s writing, so they all talk at cross-purposes, past each other.

On page 205, lines 30-31, she supposes that qualitative means you can assign some kind of number, but she does not think that possible. Come again? Qualitative means quantitative but it cannot possibly be what it means?

On pages 212-213, she has no idea what agraphia and dysgraphia might be except some kind of illness. There is a vast amount of relevant research published in med/psych literature, the avoidance of which requires dedicated endeavor.

On page 225 at the bottom, the attorney clearly asks whether factors used to make an identification have relative value in forming an opinion. The witness mistakes it as asking if one case is more difficult than another.

On pages 226-227, there is mention of Rhodes’ saying a handwriting cannot be identified. The witness said a lot has happened since. However, how to identify handwriting scientifically was established well prior to the 1950′s. These people are just unaware of it. The paper referred to is “Statistical approaches to the identification of handwriting,” written by Henry T. F. Rhodes in 1950. At the time of the hearing it was unpublished, but subsequently it was published in 3 International Journal of Forensic Document Examiners, 281-3 (July-Sept. 1997).

On page 237, what she actually says is that she sees writing is fast by seeing if it is not slow. So I guess to see if it’s slow, one looks to see if it’s not fast. She does seem to go in circles at times.

On pages 260-263, they manage to agree that a difference is different, not the same. Definitely a world-shaking discovery. The silly interchange goes on for several more pages.

On page 279 they are in the middle of the judge’s number questions. The correct answer is that a numerical statement is not applicable because, among other reasons, the entire handwriting is identified as by this person, since one single, unexplainable significant difference, however inconspicuous, prevents an identification. Alternatively, the entire writing is determined as not by this person, not just a percentage of it.

On pages 280, et seq., she cannot say what is required for recertification by ABFDE.

IN LIMINE TESTIMONY OF GEORGE EDWARD STELMACH

On pages 298, etseq., he discusses the scientific method, and it is typical ritualistic thinking. His particular method developed as just one way to “do” science. The method becomes paramount, until it is “the way we always do it.” It then becomes the sole criterion whether or not we are doing it. To be of the in-group, therefore, we must do it the in-group way, following the established ritual. This norm also lets us reject disconcerting evidence that for more than 100 years some people knew what we assert no one can know until we discover it.

On pages 303, et seq., he discusses the term “qualitative.” He thinks it equates to the muddleheadedness he experiences when he cannot count something. His term “decompose handwriting” shows that he lacks understanding that it is the entire handwriting activity which is under examination and which we must characterize in its uniqueness. This is a good example of how his definition of science permits one to be elegantly and suavely obtuse about the topic.

On pages 306, et seq., he considers handwriting as a “static trace.” However, if we do not see handwriting, we do not see what we are looking at. It is not for nothing that in English we name it with a presently active verb form.

Ending at page 313, all the things he mentions in this answer as things he can quantify are qualitative traits. That they can be in some way measured or counted is incidental to their essential reality.

On page 314 he answers that the static trace loses half of the information. He simply does not understand that the questioned document expert must necessarily deal with the finished product except in rare instances of conducting the making of requested exemplars. So everything he describes from here on is assured to be of no moment, having been the product of his basic misunderstanding of handwriting and/or his incapacity to comprehend what handwriting identification entails. His digitizing tablet is an artificial circumstance. For it to have any value in practical examination of handwriting, he would have to prove that this artificial circumstance is the same as writing the same text by the same person in the usual circumstances in which the person writes.

On page 315, his “dynamic representation” is of no value unless, like Saudek did with his motion picture camera images, he were to relate the dynamic data to the “static trace” so that, seeing only the static trace later, he can infer with reasonable accuracy what the dynamic aspect was when the handwriting was made. But he evidences no capacity even to conceive of it. See: Robert Saudek, Experiments with Handwriting, London, George Allen & Unwin, 1929. Reprint: Sacramento, CA, Books for Professionals, 1978.

On page 316, again, having discussed qualitative aspects of the handwriting, he thinks they are quantitative merely because he can put some kind of number on them. The number is nearly the very least you can say about the things he discusses. If the man has a wife, does he loves her solely because he can count her, weigh her, measure her? Does he say: “Honey, when you say you love me, what statistical probability do you apply to the statement? What objective validity does that statistical statement have?” She might learn very quickly not to love him! If her love is not superior to all math and the most assured reality of his life, he is pitiful at best.

On page 319 he may have finally expressed believable evidence by illustrating actual writing movement and the resultant trace. But he failed to state on the record precisely what his actions were. His testimony becomes a mere “static trace” of what he was doing.

On page 324 he says that writing on the blackboard and writing bigger and smaller all take the same time, because his digitized studies prove it. To refute such silliness as this, have the person write a normal sized word on the digitizer and time it. Then have him write the same word three feet tall on a blackboard and time it.

On page 326 he is correct that identifying handwriting requires some appreciation of the motor system. For all of us, our ignorance has limits, as does our knowledge.

On page 328 he talks of writing sequences of e’s and l’s in research studies. That is not handwriting, since it is not meaningful symbols written to communicate thought and/or affect to another human being.

Then there is the answer spanning bottom of page 328 and on to 329. I wonder if he surveyed the literature of psychology, medicine, education, graphology and questioned documents to locate and study previous research on the topics he mentions? If not, he is a slovenly researcher, because survey of one’s predecessors as best one can is a critical first step in original research. It also makes for humility that one does not take the position he does that this research has never been done before, that he and his cohorts alone must validate handwriting identification or it will never be validated. That is like Kohlerclaiming that their new bath tub is required for human beings to bathe properly for the first time in human history.

On page 330 his claim, that the digitizer’s plotting reflects the brain’s driving of the motor system, is gratuitous at best and arrogantly presumptuous at worst. That connection is precisely what has to be proven, not presumed. It is equivalent to looking at a thing with the naked eye and then under the microscope: It merely provides more detail to the same observation. More detail does not put you any further away from the thing being observed.

On page 333 he claims no one previously looked at variation as a pattern characteristic to an individual. He is grossly and inexcusably unfamiliar with the very literature he pretends to assess. I cite one modest effort among many: 2 National Document Examiner, “The difference a difference makes: Variations in handwriting identification,” 11-18 (1992), by Marcel B. Matley.

On pages 333-334 the topic of aging and handwriting comes up. It is not the passing of years itself, but the physiological changes occurring to the organism which account for age-related changes. He is mistaken on other issues of age and handwriting, meriting an F on this discussion.

At the top of page 335 he validates the very data, signs of hesitancy, that we use in determining disguise, imitation and tracing that are done with lack of skill. But we handwriting experts can do it from study of the finished product.

On pages 336 to 339 there are statements too outlandish or too incorrect even to consider.

On pages 349-350 he considers 22 Journal of Forensic Sciences, “Statistical examination of selected handwriting characteristics,” 206-15 (Jan. 1977), by Robert J. Muehlberger, et al. His criticism of the paper is far wordier than the paper and is an intellectual tirade that misunderstands, and so misrepresents, the purpose, procedure and results of the study.

On page 355, at line 13, he claims that the forger tries to copy the motor plan. Not at all! The forger copies what he calls the “static trace,” and that primarily as to conspicuous stylistic features. He exhibits unawareness of the dynamics of the forgery process in real-life cases and of the difference between skilled and unskilled forgery.

During the cross-examination through page 365, the government attorney did a marvelous job of disclosing not only Stelmach’s nescience of the field he criticizes, but also his sloth in bothering to dispel his nescience. I gather from his testimony that his overwhelming arrogance about being almost the only researcher ever to study handwriting identification fundamentals is at the bottom of his not needing to learn. If you are augustly knowledgeable about something, why bother learning from those whom you have already disdainfully dismissed?

At page 366 the government attorney introduces my bibliography of journal articles, now issued under the title QDE Index, and available from Jacqueline Joseph, jjoseph@jjhandwriting.com.

On page 368 Stelmach confesses that he read the three articles he referred to, and no other literature in the field of questioned documents. He read the summaries that those three articles gave of other literature, but did not bother following up on these references. That is the most inadequate scholarly method imaginable. I hope his students are far less lazy in study than he is.

On pages 374, et seq., the witness discloses his incomprehension regarding observations of speed in handwriting. First, the handwriting expert is like an Indian scout who knows from someone’s tracks the speed, direction, etc., of the person being tracked. Second, making a letter “l” may go faster in places than making an “e,” simply because the long stroke without change of direction permits acceleration; however, the pen must equally decelerate at the turn, and overall it would take more time than making an “e,” all things being equal. But Saudek already proved that. So of what use is Stelmach to us that he “proves” what we already knew while he had no idea it had already been proved? I believe the unstated, unrecognized premise for Stelmach is that, since he cannot figure how to relate the “static trace” to the dynamics of the “motor system,” he presumes no one else can, so why bother studying the treatises that tell how?

On page 381 arises the question of comparing one questioned signature with only one exemplar. There is absolutely no problem in making a full comparison, since you can compare any two things in the universe. What you must do is note the limitations of the comparison and appreciate the probative value of the similarities and dissimilarities which you can note. Further, it is possible, in the right circumstances, to obtain sufficient evidence of elimination with only one exemplar signature. Ex. gr., a writer’s one exemplar signature shows agraphia with primary tremor while the contemporaneous questioned signature shows no agraphic trait.

At the bottom of page 385 his description of his PhD in Education from UC Berkeley confirms my suspicion that it is a hodgepodge of borrowing from various disciplines. His “education” is in how to be an eclectic while avoiding being either fish or fowl or good red meat.

On page 387, lines 16-19, he says: “When someone makes a claim that something is a unique feature, we try to put that in our own little mindset of what we know about the motor system, what we know about variabilities….” And how little and how set that mind is! Definitely a Freudian slip of the truth.

On page 388 he says there is no proof that no two people write alike. No one thinks to ask him:  How many people’s handwriting have you studied? Of that number, how often did you come across two or more people whose handwriting were indistinguishable from each others’?” And similar queries. Thus once more nonsense comes off as science due to opposing ineptitude.

The pages not considered have more silliness which I shall not inflict upon you, kind reader.

IN LIMINE TESTIMONY OF MICHAEL J. SAKS

On page 396, lines 15-18, Saks curries favor with the judge, who should have tossed him out on his ears right then.

On page 399 Saks demonstrates his unique miscomprehension of what is meant by determining speed of writing from the “static trace.” First, he proposes an isolated word written in artificial conditions. Second, document examiners determine relative, not absolute, speed as to fast or slow tempo. We do so by determining those features which require more time for some reason, such as change of the pen grip or repositioning of hand or arm. But these people are so limited that they can only think in numerical terms, not in qualitative terms, due to their qualitative values of seeking ego satisfaction, of observing the established scientific rituals, of competing for government grant money and pages in journals, etc. All these unattractive valuative norms seethe throughout their testimony. Frankly, there is a stench of egoism throughout testimony by Stelmach and Saks, and I am finding it nauseous.

There is reference to 137 University of Pennsylvania Law Review, “Exorcism of ignorance as a proxy for rational knowledge; the lessons of handwriting identification expertise,” 731-92 (Jan. 1989), by D. Michael Risinger, Mark P. Denbeauxand Michael J. Saks. On page 407 the judge says that the article is not in evidence but will be considered as if it were in evidence. There might be some Federal Rule of Evidence on such sideways admissibility. The paper is rife with historical inaccuracies and mistaken legal citations, the latter cataloged by Charles C. Scott in item 14 of American Board of Forensic Document Examiners, Resource Kit,1997. As a first year law student production, it would merit a C at best, yet otherwise intelligent attorneys and judges take it seriously.

On pages 408, et seq., is referenced a study by Joseph L. Peterson, et al., Crime Laboratory Proficiency Testing Research Program, Washington, DC, National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, U.S. Department of Justice, Oct. 1978. It only demonstrated that 40% or more of government and ABFDE experts generally had difficulty with handwriting identification.

On page 409, Saks says: “If you want to know if the overhead projector works, don’t bring in a group of philosophers or electrical engineers to debate it. Turn it on and see.” Keep him away from me, because, if there is a concern that equipment may not work properly, just turning it on to find out could cause a catastrophe. Is there free gas in here? Don’t bother with a gas philosopher or gas engineer, light a match and we will see for sure. Or: To find out if it is safe to cross the street, don’t go on your impressions or intuition or beliefs about safety, just cross and see whether you make it. Another example of how “science” allows one to take absolutely inane positions. I am sure he does not do things in the way he suggests, but he is oblivious to his irrationalities, the same as he is oblivious to the realities he pretends to critique.

On page 411 he refers to a letter to the Law Review answering his article. That was mine, and it was so impressive that they rejected it twice for publication! I published it independently, and Risinger ordered three copies. I assumed it was one for each of them. None of them had the courtesy to reply to me, although I sent to Risinger also a personal letter and a gift of my Health and Handwriting, annotating a small part of the research in handwriting which he claimed did not exist. Reality has had no effect on their perceptions and opinions, which gives one confidence that not all things change.

On page 414 Saks makes the argument that only comparison of handwriting experts to lay persons can validate handwriting identification expertise. That is like saying only comparing brain surgeons to lay persons performing the same operation can validate the former. Or that only testing Saks’ ability to critique forensic sciences against lay persons doing it can validate his pretentious expertise.

On pages 424-425 Osborn’s statement of a trillion or so to one of duplicating a handwriting is considered. It is a flawed figure which came out of the Sylvia Ann Howland Will case, which was resolved without reference to the issue of forgery in Robinson v Mandell et al.,20 Fed. Cas 11,959 (CCP Mass. 1868), 4 Am L Rev 625 (1870). The following paper has complete explanation why the trillion figure is incorrect: 75 Journal of the American Statistical Association, “Benjamin Peirce and the Howland Will,” 497-506 (1980), by Paul Meier and Sandy Zabell.

On pages 427-428 Saks returns to the Harris study. As in the “Exorcism” paper, he misunderstands, misrepresents and misapplies it, as John J. Harris himself explained in 5 Journal of the American Society of Questioned Document Examiners, “Author’s introduction: How much do people write alike?” 88-95 (Dec. 2002).

On page 449 Saks says 99% of what questioned document experts do is inside their heads. The objective reply: If that were so, how could there be persuasive demonstrative exhibits? The subjective reply: Too much of what Saks and his friends say seems way outside their heads.

On page 460, lines 18-19, for a second time Saks offers to make the cross-examiner happy, but he is not taken up on the offer. Will he be permitted to shed happiness on the prosecutor? And if so, what will that happiness be? Stay tuned.

On page 471 they finally quote federal rule of evidence saying handwriting may be compared by an expert. What I now offer is a layman’s opinion based on Texas rulings, such as Henderson v State, 14 S.W.3d 409 (TX App. Austin 2000), conviction for driving while intoxicated affirmed, breath test being admissible by statute, since legislature already recognized the validity of its theory and technique. With the rules specifically permitting handwriting expertise, Daubert is irrelevant as to the discipline itself. The specific provision of the written rule preempts any case law touching on the rule’s specific provision. The government attorney should have simply moved in the expert testimony pursuant to the applicable rule. But I am only being logical, and legal academicians cannot afford to be logical, since they would have little new or different to say.

On pages 472-473 he says there are law journal articles citing “Exorcism” approvingly. I have not come across them and so wonder where they are. [Since then I have come across some, all being by themselves or their fellow travelers who regurgitate the same fallacies.]

On page 473 there is assertion that handwriting identification is subjective. It is not! I suggest that all those who say it is subjective ought to be terminated as experts. Observations are objective. Demonstrations of observations are objective. The guiding principles for interpreting the data can be set forth in order, have been developed through research and experience, and their application to the data can be stated objectively so that the fact finders can understand and make them their own. The problem is that some experts have not mastered the guidelines, some are inept at observations, and some are a bit venal in choosing the conclusion to give. These can be impeached by the objective nature of the endeavor.

As an appendix I offer only one sample of Saks’ lack of objectivity and accuracy. In 309 Science, “The coming paradigm shift in forensic identification science,” 892-895 (August 5, 2005), authors Michael J. Saks and Jonathan J. Koehler present Starzecpyzel as the final legal word on expert handwriting identification. They ignore that every federal court of appeal that considered the issue ruled the expertise admissible under Daubert. No state appeal or supreme court that I know of ruled otherwise. Individuals might have their testimony restricted or barred, but only because of failure to meet industry standards. They also ignore the fact that Saks was disqualified several times and was roundly criticized by the judge in Commonwealth v Glyman, et al., 17 Mass. L. Rep. 146, 2003 Mass. Super. LEXIS 431 (Superior Court, Worcester, 2003), for lack of objectivity, for partisanship, and for factual inaccuracies. He and his cohorts never present a balanced view of the status of the current case law, which is heavily, if not completely, against their theses.

If you as a trial attorney face any of them as an opposing expert witness who claims your document or handwriting expert should be ruled inadmissible, I can provide the case-specific materials you need to impeach them, as this blog clearly shows.

TESTIMONY OF GUS ROBERT LESNEVICH AT TRIAL

On page 1786, it is incorrect for the judge to say questioned document expert testimony is “less demonstrably accurate.” In fact, the expertise is subject to the greatest demonstrable accuracy of any expertise. It is just that enough experts have learned not to do it so that their incorrect opinions can escape scrutiny.

On page 1791 at the top, the requirements for recertification by ABFDE mean one merely need avoid dying within the next five years. [Subsequent to this trial, Lesnevich no longer was certified by them. My understanding is that ABFDE dropped those who only held certification by the original grand-fathering of the founding members.]

On pages 1793-1795 the witness gives a protracted answer that does not answer the question of how a writer can be identified or eliminated. Experts often bamboozle lawyers and judges by such tactics. The lawyer is mesmerized and forgets what the question was.

On page 1796 at the top, the man says a forgery is writing another’s name. That is merely writing another’s name; fraud must be involved. A forgery may also entail writing one’s own name.

On page 1799 it is asserted that the two questioned signatures were written one after the other or at the same time, a most gratuitous and indefensible opinion.

At the top of page 1803 he says that an endorsement signature on a check is not “comparable” to the questioned signatures, since the latter is in a very confined space. Defense should have asked to voir dire on the exemplars. An endorsement is written in a confined space! Besides, limited space might have no effect on the identifying traits of the signature. See: 25 Journal of Forensic Sciences, 141-5 (Jan. 1980), “How does crowding affect signatures?” by Susan E. Morton.

On page 1803 at the bottom, Lesnevich claims that an overhand movement and an underhand movement are “very close to each other.” If so, defense can argue every pair of contrary features, i.e. the alleged significant differences, are similarly “very close to each other.”

On page 1804 he says both questioned signatures have the same slant. That proves nothing unless he proves that genuine signatures never have the same slant.

On page 1809, lines 21-23, he says: “We have muscular movement….” A good cross-examiner should jump on that: “Do different writers employ uniquely different muscular movements? Is that the specific cause of one making a uniquely identifiable writing, that one uses a uniquely individual muscular movement?” If “No”: Impeach withauthoritative quotes. If “Yes”: He must demonstrate the specifically individual muscular movements for each alleged writer. Much else could be asked. If Stelmachand Saks were worth a penny of the money they cost, they would have provided devastating cross-examination on this issue alone.

On page 1813 he says he relies on seven distinct differences plus two seldom seen in the exemplars. To defeat his opinion, one need only show that the same or similar difference occurs in at least one of the 417 or so exemplars. Since he really did nothing more than what is called trait stroke observations, that should be a relatively easy task. But first one would ask: “What if one of the seven loses its import? What if one of the seven becomes a ‘seldom’ rather than a ‘never’ trait?” And gradually reduce one by one till he either says his opinion becomes invalid or he must say that merely one of his observations will let him hold to it.

Note that he never said any of these nine traits were significant differences, merely not similar. Nor did he say each was an instance of an aspect of the entire signature which is different, such as different proportions in “th” is illustrative of incorrect proportion in the signature as a whole. So to “prove” the exemplars are all forgeries, one merely need point out dissimilarities of the same superficialnature among them when compared to each other. The defense attorneys were ill-advised not to have a competent handwriting expert as a confidential trial consultant, since Stelmach and Saks were admittedly ignorant of handwriting in all its aspects.

On page 1814 he gives an ill-defined definition of “pictorially similar.” More importantly the cross-examiner should wait for jury argument and say: “So a characteristic of a forgery is that it is pictorially similar to the genuine? Were the genuine signatures meant to be pictorially similar and thus forgeries? Since pictorial similarity is a mark of forgery, if a forger does not bother to make it pictorially similar, the forgery is not a forgery?”

On page 1816, lines 12-14, after backing down from saying the questioned signatures were written one after the other, he claims they were written by looking from one to the other. Thus, he makes an even greater presumptuous leap in logic. Would a forger be so stupid as to imitate his own imitation rather than the original model used the first time?

On page 1824, when asked on cross-examination about it, he cannot say how much he is being paid. Did anyone believe that? It violates the rule about making such information available.

On page 1826, lines 12-14, there is an excellent question: “Well, is there any magic number that one relies on to say similarity, dissimilarity, or is that purely a subjective determination on the part of an examiner?” The answer ignores the scientific and technical requirements for an identification or elimination, but it is highly skilled obfuscation. The man could have been impeached from the professional literature if the defense consultants had not been so hide-bound in their bigoted attitude towards, and ignorance of, the discipline. Their ignorance protected Lesnevich from the vulnerabilities of his expert superficialities. The cross-examiner does get back to it a couple pages later, though ineffectively.

On page 1827 the witness is asked about the number of exemplars needed. Contrary to the answer, there are objective guidelines for how much you need, otherwise you either have to qualify your opinion or may not be able to have one. Again, if the defense consultants had done their proper work rather than run their little ego games in the name of science, they could have properly served the legitimate interests of their clients. The cross-examiner does it all wrong. Instead of asking a theoretical question which lets the expert sidestep, the focus should be only on factual statements and bringing forth only those authoritative references which contradict the practice or interpretation employed by the expert. To do that, an attorney needs a genuine handwriting expert who has ready access to a substantial library, which is why I offer confidential consulting services.

On page 1829 the cross-examiner induces the expert to settle on “muscular movement” as what we are looking for, but he does not require the precise description of it in the questioned versus the known signatures. Once Lesnevich accedes to muscular movement being key to identification, he must be made to describe the precise and unique muscular movement of each signature he examined. I have never seen a report or testimony by him that offers such objective and scientific observations.

On page 1831 they return to the previous confusion between “variation” and “difference.” They add to that a similar miscomprehension based on two working definitions of “fact.” The cross-examiner takes it to mean only something a person knows from personally perceiving it while it occurs. Lesnevich takes it merely as anything we know happened, in this case by evidential reasoning from observations of a past event. Much cross-examination is talking at cross-purposes and cross-meanings. No wonder people tend to become so cross when engaging in it.

On page 1839 the cross-examiner asks: “And in this case did the government tell you that Ethel Brownstone was suffering from Alzheimer’s disease?” Apparently this critical issue is not pursued. Again, if the defense experts had bothered to educate themselves, they could have impeached his specific, case-related skill. Was it unethical for the expert consultants not to educate themselves about case-specific, key issues in handwriting identification?

On page 1840 the cross-examiner induces Lesnevich to admit that the exemplars are notably dissimilar and then goes on to ask what if they were the questioned signatures, etc. No! Immediately drop the subject and return to argue to the fact finder on the implications. Why give the expert opportunity to obfuscate some more about your winning point? At least there was consistency in making this mistake whenever possible.

There is nothing like a bunch of bungling consultant experts and the cross-examiners they mislead to let an expert get away with a lot of malarkey.

What I find most disturbing about this case is that, in all discussions of it, whether the defendants were convicted or not is never stated. I can only assume they were. The central issue of conviction or acquittal seemed to be of no interest to the defense experts. Only their own stature as oracles of scientific acceptability ever dominates all their writings and testimony. Their clients’ legal jeopardy seems to be merely an incidental occasion for their stage-center, repetitive performance. Ulysses S. Grant said, “I know only two tunes. One is Yankee Doodle and the other isn’t.” That is twice as many as Saks, Risinger, and all the critics of forensic expertise know and which they tiresomely whistle in every journal paper, every presentation and every testimony they offer.