out of the weapon—were not the normal way to match a bullet and a gun. In fact, the FBI’s Robert Sibert had never before based his analysis solely on ejector marks. He’d done so in this case because he had no other means; the firing pin, breech face and extractor marks—the usual basis for comparisons—did not match Macumber’s pistol. Sibert nonetheless had delivered his opinion with certitude: The ejector marks “could have been produced by no other ejector in the world.”
Byers didn’t think it possible for such a statement to be true. He had been an engineer overseeing production of ammunition and shell casings at Remington Arms Company, where he’d designed rifles and ammunition, and was then president of a company that manufactured .45-caliber ammunition for the U.S. Marine Corps. He’d studied firearms identification and published articles on firearms. He didn’t believe ejector marks had a distinct signature. Yet he had never testified as an expert witness in a case like this. On these grounds, deputy county attorney Tom Henze objected to his qualifications before he could take the stand.
Henze had his reasons: He believed the state’s ballistics evidence to be the key to Macumber’s conviction. Years later, Henze would not remember Carol’s statement being the meat of the case. Nor would he recall Bill’s palm print being the clincher—that could be explained away even without proving it had been planted. The Impala, after all, had been left unsecured for hours, and before the murders, its driver could have stopped at Macumber’s gas station. To Henze, the shell casings made his case. The ejector marks were the tiebreaker. So he wanted to keep Byers off the stand.
Judge Hardy had never before heard of using ejector marks to make a comparison, but he, too, questioned Byers’s qualifications. “Mr. Kemper,” he said, “I am going to have to sustain the State’s objection.”
This ruling stunned Kemper. First they’d lost the Valenzuela confession, and now their ballistics expert. “I am not sure I understand you,” he told the judge. “Could you explain that to me again.”
Hardy tried, though he had some trouble with technical ballistics terms. His explanation didn’t satisfy Kemper.
“If Your Honor please, if I may make a couple of comments?… The thing I can’t understand, that baffles me … is the biggest fallacy in this courtroom. I don’t believe Your Honor can understand it. Mr. Henze and Mr. Cantor get up here and they tell you what the standards would be of an expert in the first place. And then you say because Mr. Byers doesn’t meet what they say is an expert, he can’t testify.”
“I never said that,” Judge Hardy interrupted.
Kemper kept going: “I am still trying to understand the basis of the Court’s ruling. May I ask some questions so I can understand?… We have got up here some pictures that we know were taken of evidence shells and we have got some pictures over here that we know hit the ejector in that gun, all right? Now, that’s what Mr. Sibert had, okay?… And he says, ‘In my opinion these look like these.’ Now, Mr. Byers on the other hand has put the evidence shells and test shells under a microscope, but he has gone one step further.… He has taken pictures of them so the Jury can … see it with their own eyes. But you say he can’t [testify].… I can’t fathom that.”
Judge Hardy: “You have left out an important step. That is, Mr. Sibert testified that he has been trained and is experienced in comparing hundreds of thousands of ejector marks and he has learned that … each ejector mark has a characteristic pattern on the casing.…”
Kemper: “Precisely. And we can come in here and tell you they don’t make a pattern. And we can show the Jury why they don’t make a reproducible pattern. Do you suppose Mr. Sibert was born in a witness chair? He had to testify for a first time at some point in his life.… You have to
Byers didn’t think it possible for such a statement to be true. He had been an engineer overseeing production of ammunition and shell casings at Remington Arms Company, where he’d designed rifles and ammunition, and was then president of a company that manufactured .45-caliber ammunition for the U.S. Marine Corps. He’d studied firearms identification and published articles on firearms. He didn’t believe ejector marks had a distinct signature. Yet he had never testified as an expert witness in a case like this. On these grounds, deputy county attorney Tom Henze objected to his qualifications before he could take the stand.
Henze had his reasons: He believed the state’s ballistics evidence to be the key to Macumber’s conviction. Years later, Henze would not remember Carol’s statement being the meat of the case. Nor would he recall Bill’s palm print being the clincher—that could be explained away even without proving it had been planted. The Impala, after all, had been left unsecured for hours, and before the murders, its driver could have stopped at Macumber’s gas station. To Henze, the shell casings made his case. The ejector marks were the tiebreaker. So he wanted to keep Byers off the stand.
Judge Hardy had never before heard of using ejector marks to make a comparison, but he, too, questioned Byers’s qualifications. “Mr. Kemper,” he said, “I am going to have to sustain the State’s objection.”
This ruling stunned Kemper. First they’d lost the Valenzuela confession, and now their ballistics expert. “I am not sure I understand you,” he told the judge. “Could you explain that to me again.”
Hardy tried, though he had some trouble with technical ballistics terms. His explanation didn’t satisfy Kemper.
“If Your Honor please, if I may make a couple of comments?… The thing I can’t understand, that baffles me … is the biggest fallacy in this courtroom. I don’t believe Your Honor can understand it. Mr. Henze and Mr. Cantor get up here and they tell you what the standards would be of an expert in the first place. And then you say because Mr. Byers doesn’t meet what they say is an expert, he can’t testify.”
“I never said that,” Judge Hardy interrupted.
Kemper kept going: “I am still trying to understand the basis of the Court’s ruling. May I ask some questions so I can understand?… We have got up here some pictures that we know were taken of evidence shells and we have got some pictures over here that we know hit the ejector in that gun, all right? Now, that’s what Mr. Sibert had, okay?… And he says, ‘In my opinion these look like these.’ Now, Mr. Byers on the other hand has put the evidence shells and test shells under a microscope, but he has gone one step further.… He has taken pictures of them so the Jury can … see it with their own eyes. But you say he can’t [testify].… I can’t fathom that.”
Judge Hardy: “You have left out an important step. That is, Mr. Sibert testified that he has been trained and is experienced in comparing hundreds of thousands of ejector marks and he has learned that … each ejector mark has a characteristic pattern on the casing.…”
Kemper: “Precisely. And we can come in here and tell you they don’t make a pattern. And we can show the Jury why they don’t make a reproducible pattern. Do you suppose Mr. Sibert was born in a witness chair? He had to testify for a first time at some point in his life.… You have to
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