WITH the Government moving to start the Commission of Enquiry into the joint police/military operation in Tivoli Gardens in May 2010, concerns are being raised that the ballistics examination to determine how more than 70 people were killed is not yet complete, more than four years after the incident.

This was brought to light when former Public Defender Earl Witter released his interim report into the incident last year.

Witter’s report contends that the commission must be able to determine whose guns were responsible for the killings in order for the commission to have any meaning.

“It will be clear that the important issue of determining whether persons allegedly killed in the course of the Tivoli/West Kingston ‘incursion’ met their deaths at the hands of members of the State security forces (JCF, ISCF or JDF) or any other (such as armed combatants/illegal gunmen) can only be settled by the forensic examination of firearms. There is no evidence of visual identification of the shooters. Of course, the issue of criminal liability (in particular, whether at any material time a member or members of either force acted in self-defence or not) is altogether a different matter,” the report states.

However, efforts by the Jamaica Observer to ascertain whether or not the ballistics examinations had been completed were unsuccessful, as no answer has come from the Ministry of Justice.

Opposition Spokesman on National Security Derrick Smith was also concerned about the veracity of the inquiry if the ballistics report was still outstanding.

“No inquiry without the results of the ballistics tests, which I recollect are in the hundreds as hundreds of persons had weapons, would be complete. It would give a true reflection of what really went on in Tivoli,” Smith said during the Jamaica Observer Press Club

last week.

Nelson’s deputy, Pearnel Charles Jnr, supported Witter’s position.

“His position was very clear that you would be unable to have a successful enquiry that would achieve the objective without that particular substantive and relevant information and you have to look not at what is said but at what is done and you would have to ask yourself why would you want to advance the process without this information?” Charles said.

While carrying out his investigation, Witter acquired the services of Matthew Noedel, a forensic scientist, firearms examiner and ballistics expert, who was made available by USAID and the United Nations Development Programme.

Noedel was accepted by the Ministry of National Security as an expert in the ballistic sciences and was allowed access to the Government Forensic Science Laboratory in St Andrew.

After viewing the facility, Noedel pointed to glaring deficiencies which would hamper the process.

He praised the fully functional Integrated Ballistic Imaging System (IBIS), which comprises a computer-driven digital camera that can take high-resolution images of the microscopic marks left on fired cartridge cases. The instrument then stores these images and constantly compares the entries to all other entries in the database.

“This equipment, if utilised for the Tivoli evidence, will be very useful in helping to sort out and screen potential recovered (unknown) and test fired (known) cartridge cases. Because of the irregular shapes of fired bullets and fragments, the system is not useful to sort out fired bullet evidence. Any positive association indicated by the IBIS technology must be confirmed by direct microscopic examination of the physical evidence by a fully trained firearm examiner,” Noedel wrote in a draft report.

He was not so enthused about the comparison microscope, however.

A comparison microscope is a system of two microscopes bridged together to one set of eye pieces. The instrument allows the examiner to place the unknown sample on one microscope stage and the known sample on the other stage and directly compare the two objects through the eye pieces.

“Currently, the ballistic lab has three comparison microscopes, two of which are incomplete and not working at all, and the third, while functional, must be shared between the three examiners and a fourth independent examiner for Tivoli evidence,” his draft report stated.

The Forensic Laboratory has since acquired two new comparison microscopes. A third is partly functional and may be used for preliminary sorting of spent shells only.

In his report, Witter pointed to the lack of adequate personnel and tools at the lab.

“The recent acquisitions do not adequately address the demand for trained firearms examiners… These deficiencies are the root causes of a chronic backlog of cases (presently put at 1,300), a feature which has bedevilled the laboratory’s output for many years past. That feature has militated against the timely administration of criminal justice. It contributes significantly to systemic delay of trials. The fact is that increases in staffing and equipment have not complemented the rise in firearm-related offences. It is expected that four trainee examiners will have qualified for certification by year-end, bringing their number to eight — including a retiree re-engaged on contract. But another four fully functional comparison microscopes are urgently needed,” Witter’s report stated.

Witter also contends that up to early January 2011, the JDF maintained a stance of non-cooperation with the Bureau of Special Investigations in relation to the Tivoli incident. He said that the army insisted that the testing of weapons should be evidence-driven and refused to hand over their weapons for testing.