In The News

In The News

Monday, December 16, 2019

This is a case that happens once – maybe twice – in a career.

By Michael Nichols

(Note: the client has approved the content and disclosures to the extent any information in this essay discloses information protected by MRPC 1.6)

This is a case that happens once – maybe twice – in a career. We all know things happen within the Michigan State Police Forensic Science Division that are – shall we say – desultory. We try to be professional with the lab staff and we want to believe that what happens in that lab is in the interest of science. The problem with that faith is that almost every time a lab analyst “from Lansing” gets in front of the jury or a judge in any courtroom around this great state, it feels like what we are hearing is a lot of “blah blah – vote for a conviction because we are confident that based on what we did this guy/gal is guilty.” Of course, that is not exactly what the analysts say but it sure feels like that the goal of every vowel or consonant that they pepper at us on cross examination is to assist the prosecution.

And they always say “I am here as a scientist. What I do is science.”

Except that in real life – the paycheck that they receive is from the State of Michigan Department of State Police.

Say it with me: they work for the State Police.

They work for the State Police therefore – they work for law enforcement.

They always try to convince the judge or the jury “everything in the lab is fine we would TELL you if it was anything but fine – TRUST US.”

Well a case finally happened. It was reported in the as the case of Patrick Reynolds. The lab was exposed and Geoff French was uncovered as a prevaricating pustule of police advocacy.

There are a lot of fantastic, experienced lawyers who focus on drunk driving in the State of Michigan. At the risk of sending the reader to my competition – let me name them: Patrick Barone, Jeffrey Crampton, Barton Morris, William Maze, Mike Boyle … and I name only the top 5 of whom I can think.

Then there are a lot of lawyers – many of them – who are fantastic and who are also very bright but they would not know what to do with the information that I uncovered. I only knew what to do with the data is because I have 20+ years of experience in criminal defense and over 12 years of experience focusing on drunk driving cases. Let me pause here and invite you to read the Lansing State Journal story about the case. That is certainly an objective reporter’s view of what happened – and I am grateful that she did the story. For whatever reason, though – that story lacked depth and it failed to really address the bottom line about why we obtained such extraordinary relief and that bottom line is that Geoff French misrepresented what happened in the lab when problems became so pervasive that they had to shut down blood alcohol testing – completely – for 11 days as 2018 turned to 2019. You can listen to an hour discussion about this case on our “Ex Parte” podcast.

As you read and think about this tale, please ask yourself this: what if Patrick had a lawyer who was not as experienced in DUI Defense? What if no one uncovered what our government representatives were doing in the fall/winter of 2018-2019?

Let us turn first to the human being who was affected by this whole rank episode of abuse in the realm of “forensic science.” Patrick is a 43-year-old man and father of a young guy, who is also a tremendous University of Michigan fan. I tend to disagree with his politics in this particular area of loyalty but … to each his own.

I am standing on the landing at the 54B District Court in East Lansing awaiting a client’s arrival when I return Patrick’s call in late November, 2018 about his case: he was arrested by a young-ish Lansing Police Officer, who got really stand-offish with him. Patrick was watching his beloved U-M lose horribly to Ohio State in football. He was with a friend of his – a buddy. Patrick was drowning his sorrows – not just because Jim Harbaugh was about to go 0-4 against the Buckeyes but because Patrick’s marriage was over. His wife was getting ready to file for divorce and it looked like he had a long road ahead with battling for his son and his assets. One beer lead to the next, then the next and then next thing you know – he’s put his car up against a pole in Lansing on the way home from the bar in downtown Lansing. Patrick could not have felt worse about it and to add insult to injury – the officer claimed he violated the Michigan Implied Consent Law Patrick was in the category of clients who come to me with: “Mike – I f----- up. I need you to get me out of it.”

Patrick was low on funds but he had great facts. The immediate thing that he had to deal with was the implied consent hearing under MCL 257.625c. He came into the office and met with my paralegal without parallel: Aaron Martinez. They talked through the issues because I was in another trial. When I came to the office and met Patrick I could tell he had the weight of the world on his shoulders but he had such a great attitude. We talked about his case and the fact that he had to request a hearing on the implied consent part right away. For those of you who don’t know – you have to request that hearing within 14 days of your arrest if the officer claims that you refused a chemical test post arrest. When we talked – I liked him right away as a genuine guy with a lot on his plate. A former wrestler (Platinum Pat). There are times when I can budge on a fee and times when I cannot budge on a fee. This was a time that I could not budge. So we talked, I told him that I would be willing to take the case in stages if all he could do is come up with the funds on the implied consent side at this point and wait and see on the criminal case. That is pretty much how he was forced to proceed in this case and Patrick retained us to help him on the implied consent hearing – which usually is set about a month out after you submit your request for a hearing (and remember you have 14 days from the arrest to request the hearing).

We prevailed at the implied consent hearing because the officer could not put Patrick behind the wheel as the driver and tried to use hearsay statements. Hearsay is admissible if it is otherwise the type of evidence that a reasonable person would rely upon at one of these administrative hearings. That was in January, 2019. Patrick has his driving privileges and he is happy for now. So am I. We part company and he agrees to keep in touch if and when he hears something on the criminal charges from the city of Lansing.

Time passes and I pretty much forget about Patrick and his case. Then in early May he gives me a call and he says words to the effect of “hey I got charged with the high BAC – the money is still tight but I still don’t think that they can put me behind the wheel so I’ll go meet with the city attorney at my pretrial – got any tips?” Patrick still is trying to raise the money from friends or family to hire us when he goes to the pretrial. He is a nice guy but I do not even have a police report so I am loathe to tell him anything other than good luck with a few general thoughts about what happens at a pretrial.

Patrick calls me about a week later: the pretrial did not go the way that he wanted it to go but he raised the money to hire us to go to trial for him. We finalize the business end of our relationship, file what is called an “appearance” – putting the city prosecutors and the court on notice that we are going to represent Patrick. We also send freedom of information (FOI) act requests to the Michigan State Police (MSP) lab and to the city. The trial is set for Monday May 20th, 2019. Patrick and I are talking strategy and trying to work through how we want to play the arguments. I still do not have any “data” from the lab back by the time we close for business on Friday May 17th. Trial is the following Monday.

When we request data from the MSP we usually have what I call a “summary” report that claims our client’s blood was analyzed for the presence and amount of an “analyte” whether it is THC (the psychcoactive component of marijuana) or alcohol or one of dozens of prescription drugs, we want to review everything that was going on in the lab at the relevant time frame. All I know about Patrick’s case is that the blood was analyzed and reported as a concentration of .176 grams of ethanol per 100 milliliters of blood with an “uncertainty” declaration of .17 grams/100 milliliters of blood.

Uncertainty means that the lab never knows the “true value” of what was in the blood sample but they can declare a range of values within which they expect the true value to fall if they were to measure the blood 1,000 times. In Patrick’s case, the range was from .159 to .193 with a 99.7% confidence interval. My thinking is that the least of our worries is the high bac charge because the prosecutor’s burden is to prove beyond a reasonable doubt that the level is .17 or higher.

Here is where things get really interesting. On the day of trial in 54A District Court in Lansing, it is what is known as a “trailer” docket. In other words, several cases are set for trial. Usually, most cases and sometimes every case gets resolved. Judges are not necessarily looking to push people at that court if they are not ready for trial but you need to have a reason to get an adjournment or a new trial date if you are not ready for trial and all the other cases on the docket are resolved. My policy is to avoid asking for an adjournment unless there is something really big out there that I am awaiting. You always sort of get a “black mark” in the file. I am not sure how to explain it but judges always think that attorneys or their clients just want to delay delay delay delay. That is not always true but it just feels like defense attorneys have a bad rap in the criminal justice system for always wanting adjournments.

I also had little idea that the data at the lab that was still being assembled in response to my FOI request contained what it did. The bigger issue for us was the fact that no one saw Patrick driving other than the buddy who was with him and I knew that the buddy never received a trial subpoena. So, asking for an adjournment, even though we did not have all of the data, did nothing other than give the city attorney time to make their case better when they were not necessarily prepared either.

So when we contemplated the offer to resolve the case, going to trial or asking for an adjournment the decision was absolutely Patrick’s. The folks who helped him pay his attorney fees were also there and in his ear. He made the calculated decision to take a shot and let the chips fall where they may – but if his trial was fair he would probably come out ok on the high BAC (the .17) charge because after all, the city has the burden to prove the case beyond a reasonable doubt.

I started to get a hint at how frustrating this case would turn out to be when the city attorney was absolutely stonewalling us on getting the body worn camera footage from the 2 officers who were on the scene. I am thinking – what? This is public information and I have an FOI request pending. We had to go meet with the judge – who was now trying to juggle some tasks around because she was about to start a full day trial. The judge seemed to be incredulous that the city would even think about not letting me see their body camera footage. She quickly said “work it out – do what you need to do but he gets to see that stuff especially if you want to use it at trial.” By the time trial started, I still had not seen everything that I should have seen but I saw at least the portion that encompassed the pre-arrest footage.

Trial starts and I am told by the city attorney that the lab analyst, Mr. French, would be at city hall to testify after lunch. We conduct jury selection (known as “voir dire”). We do opening statements. The city attorney then starts her case and puts the officer on the stand. He is young, he struggled with remembering how he did or how to do the only standardized field sobriety test per the National Highway Traffic Safety Administration (NHTSA) that he was able to do that night. The test that he did was called Horizontal Gaze Nystagmus and he just could not properly describe it. The trial judge, to her credit, did what most judges would do and that is: follow the law and order that he could not testify to his observations for that test.

There was a lot of effort to get the officer to testify that Patrick would have been “on the way down” in terms of his blood alcohol level when his blood was drawn. There was a lot of effort to get the officer to speculate about how Patrick had to have been driving, that there was no passenger (there was) and just a whole lot of leading questions. The city attorney is young; I do not know how many cases she tried before that day but she had a supervisor with her so my frustration was that, while I could have objected every single time she asked a question I did not want to come across as a bully. That approach can backfire and the jury can ascribe guilt to the person on trial for finding a “hired gun” to try to get him out of it. So it was a long morning.

The person who drew the blood testified: she was fine.

Then we broke for lunch. I asked if Mr. French was at the city hall yet so I could talk with him and review his data. Again, stonewalling and non-answers are what I get in response.

A side note to this whole saga is that it seems to me that the Lansing City Attorney’s office is ripe for a good ol’ FOI lawsuit because, unless something changed, they showed me 2 things in their response to my FOI requests: a glacially-slow turnaround and a pretty aloof attitude to what they are required to do when they get a request for public records.

At lunch, our team of about 4 people is reviewing as much body worn camera footage as we can. The reason is because we need to know what traps are out there and – you never know when a really good and helpful piece of evidence is going to come from the body camera. For example, if there was some glaring problem or irregularity when the person’s blood was drawn.

I also have a really hard time eating when I’m in trial at lunch so I wolf down a muffin, get some coffee and head back to city hall after I watch more footage and decide it is time to try to track down Mr. French and his case jacket. I walk a few blocks from the Grand Traverse Pie Company to the City Hall building and breeze into the city attorney’s office. I ask for opposing counsel. She is in a meeting. I ask for Mr. French. He is in a meeting. 2+2 = 4: they are in the same meeting. I ask the friendly face if she would interrupt and ask them if I can see Mr. French’s case jacket. About 10 agonizing minutes later, she comes out with a copy of the case jacket.

I will be frank – I was looking for something completely different than what I found. I knew that the blood sat in the city police department for over 2 weeks and then it was hand delivered to the MSP. There is nothing inherently wrong with that except, under a case called People v Cords, there are 9 foundational requirements that the proponent of blood alcohol evidence has at trial and 2 of them relate to the preservation and handling of the sample. No one even identified who took the blood sample to the lab. Without that witness they are already short on 2 of the 9 things that they have to demonstrate.

As I am walking down the hall of the 6th floor toward the courtroom I realize something: on December 20th – about 16 days before the blood alcohol report was generated, the blood sample was removed from storage by a totally different analyst and then returned. That is all I see. The next day, the same analyst removed the blood sample from storage and again, returned it the same day. WHAT? There is no annotation as to why or anything. I am still taking in what I see on the document that revealed all of this. The document is called the “chain of custody” document. It is kind of the lab’s log for tracking the blood sample from the moment it arrived at the MSP.

It is a few minutes before we resume for the afternoon session.

An important note is that judges do not like to keep jurors waiting. If you ever have been on a jury before, you know that there is a lot of sitting around time. You are in that room, sitting there wondering what is going on in the courtroom. Are the lawyers just screwing around? Why make us show at this time if all we have to do is wait?

No one likes to do that to jurors especially a judge. If for no other reason than the fact that these are a group of voters sitting around. So I am ruminating what to do about what I just learn on this chain of custody document.

Mr. French is called to testify. The prosecutor is really struggling to elicit the information from him and I am listening with 1 ear as I continue to glare at what is in my hand. I keep bypassing a chance to object time after time as this plods on and I think she must have just gone over this scripted q & a with Mr. French moments ago. She asks him to tell the jury if there were any problems; he affirms everything was fine. She asks him to tell the jury what the result was and I finally spring up and say 2 words “voir dire?” This is a request to the judge to be allowed to ask an expert witness about how he or she arrived at an opinion before the opinion is tendered. It is often also used before an exhibit is admitted such as a photograph or another type of report.

I slowly use question after question about the data that he brought with him; the confidence he has about the opinion he is about to give to the jury and then I stop; ask the court reporter to mark his case jacket as special record exhibit A. I show him the chain of custody document and he confesses as follows:

“We were having problems with our quality controls. The quality controls failed on those prior days and so I decided to do this analysis myself on January 4th, 2019.”

Remember, Mr. French is a supervisor and he does not often do “benchwork” or blood analyses because he has a lot of other more administrative and management work to do. He has to make sure that casework is getting turned around in – as he puts it – “my lab.” He always calls the MSP “my lab,” which says a whole lot.

So I say “where is the data from ‘your lab’ about these runs? He confesses as follows:

“That data has been discarded because it is useless.”


The judge is clearly annoyed with him and with the prosecutor. Rightly so in my opinion. I am not just annoyed I am furious. I ask to make a motion and that it probably should be outside the presence of the jury.

We then spend another chunk of time going over with Mr. French what happened, why it happened and where the data was. He was frustrated. I would be, too if my pants were pulled down like that. It is his fault though, totally his fault.

The judge takes a break to go do some research and decide what to do. I have just made a motion to exclude the blood alcohol evidence because of the improper conduct by the government – as in the city and the msp jointly. This is what is called a Brady violation and under a case called People v Chenault the government or prosecutor is held responsible for information that law enforcement has but suppresses. That is an important point because this young prosecutor is protesting to the judge that she just found out about the issue at the same time that I did. If that is the case, why did she try to “slide one by” the jury by asking Mr. French if all the protocols at the lab were followed and everything was “up to snuff” so to speak? Why not come to me at the lunch break and say “I am not sure what is up but apparently there was some sort of problem when they tried to run your guy’s blood?”

The whole critical element of a “High BAC” charge is – you guessed it – the BAC.

The judge comes back and gives the city attorney a judicial rebuke for what happened and then turned to me and said “Mr. Nichols I think that your remedy is a mistrial.”

It took me about 2 seconds to process this because mistrials are something I learned a lot about and usually the hard way. If I agree to a mistrial then it is almost as if the prosecution gets a reward. We dismiss the jury, set a new trial for a new jury, the government gets to clean up their case issues, get the witnesses they need, try to come up with more explanations for the problems with the evidence and who pays for that? Patrick, that’s who! “I object to a mistrial” is my response.

There is a lot of case law and even a court rule that directs a trial judge to consider alternatives to a mistrial by talking with the lawyers about what to do when irregularities come up during trial. That did not happen here, the judge ruled that we would move on with the trial and the blood evidence would be admitted. The judge did not agree with my secondary grounds to object to the blood based on a lack of chain of custody.

We go on to finish Mr. French’s testimony. I ask him to double down on a statement that he made on direct examination “I am 100% confident in my result.” Not only does he make that statement again and again but he also said “I never make a mistake.” I offered to him on cross to analyze the blood again to see if the quantitative value (how much alcohol is there) increases. The judge is starting to shut me down. I ask him to agree that nobody is perfect “I never make a mistake as an analyst … that I know of.” A juror laughs at him.

I decide that I need to put in a case. I call Dr. Andreas Stolz that night and explain what happened. I ask him if he can make it to trial the next day if the client’s family can help him with the fee. Dr. Stolz, as he always does, insists on seeing the data. I send him what I have and he later advises that the lab did not establish a reliable measurement on January 6, 2019, the day that Patrick Reynolds’ blood was tested, because in large part, they did not perform a root cause analysis to determine what happened on the failed runs or why. Patrick’s relatives scounge together the funds for Dr. Stolz’s fee for the next day.

Dr. Stolz testifies. We do closing arguments. I do not feel positive about the outcome during closings. I have one juror literally shaking his head at me. The judge gives the closing instructions to the jurors. Instructions are given before and after a trial by the judge to explain legal principles to them, explain how the trial works, the “rules of the road” so to speak such as that the government has the burden, what a reasonable doubt is and the elements of the offense, in other words what facts have to be proven beyond a reasonable doubt in order for the jury to convict. The judge read a special instruction that the government violated Patrick’s rights by withholding evidence. I asked her to read an instruction that the government’s conduct was “a reason to doubt.” She declined to go that far.

The jury convicts Patrick in about an hour of the high bac charge. I make motions to set aside the verdict, for a new trial and for a mistrial. The judge brusquely denies my motions, telling me that I waived all that when I “declined” her “invitation” for a mistrial.

My FOI response for Patrick’s case arrives a few days after the jury verdict. I decide I am going to review it. I think I was sitting on the back deck of my cottage in East Tawas when I spotted it: a document called the “alcohol batch worksheet” – which is akin to the chain of custody document except that it is basically a schematic of the batch run that includes a person’s blood specimen. When the MSP runs a blood sample at the lab, they do not run it individually. The use a method called headspace gas chromatography on 2 instruments. They mix a very tiny amount of the blood from the evidence vial (50 microliters) with de-ionized water and a comparison alcohol: t-butyl on 1 instrument and n-propanol on the other instrument. The “run vial” is then placed on a tray with 69 other vials, many of them are other evidentiary or unknown samples and interspersed with those are known concentrations of alcohol to check the accuracy of the instrument during the run, and then some negative samples, to see if any cross-contamination or carryover occurs. A small amount of blood from each evidentiary vial is run on each of the 2 instruments. If the identified value is within .05 g/mL of each other then the mean value is calculated and the amount is reported with the uncertainty declaration (in 2018 at the time of Patrick’s run it was 9.5% - now it is closer to 9%).

The worksheet also has a “notes” section. I see on the notes that the instrument had a problem with the flame ionization detector signal. Both instruments had the same problem and it was identified on January 4, 2019. It is not clear whether Mr. French even put the vials back in storage so I do not even know when he discovered it and what he did about it.

A discussion about GC/HS is found here courtesy of Agilent Technologies and YouTube:

I realize after reading the FOI data that there is a lot more to the story. I file a motion and ask to have it heard on the day of the sentencing. I ask Dr. Stolz to review what we have from the lab and if he felt comfortable with doing so, to prepare an affidavit. Keep in mind, when I said Patrick came up with money to hire us for trial – it was a one-shot deal. He had enough for a 1 day trial – not all these motions. His family helped him come up with Dr. Stolz’s standard retainer to appear and testify at trial – not post-trial motions. Patrick is now unemployed thanks to the conviction. His bill with us is not going to get paid anytime soon and we are forced to pay out of our own pocket for Mr. French’s trial testimony so that we can compare the “100 percent confident” statement by him with what we are now finding out about what is going on.

The judge, to her credit – granted the motion for an evidentiary hearing so we can try to find out whether the new information is material.

Hearings are held on September 6, October 17th and November 7th. I serve subpoena duces tecum on all the players: Mr. French; Brina Gendhar, who was the analyst who performed the “failed runs” and a person named Nick Fillinger. Mr. Fillinger is the technical leader for the toxicology unit. He is, at the end of the day, the one who calls the shots on what happens at the lab in terms of taking instruments out of service, protocols, changing protocols and really – decisions of a bigger scale to make sure that the lab is functioning at a scientifically-acceptable level.

Here is a bullet point list of things that were revealed in the hearings:

  • The lab staff were experiencing 2 major problems, retention time shifting and carryover contamination;
  • Retention time shifting is potentially relevant to the identification of the analyte. If you watched the YouTube video or understand anything about gas chromatography you know that when the component parts of the gas that is inserted in the instrument is important because the unique property of the analyte and how long it is retained in the gaseous mix is how the analyte is identified;
  • Carryover contamination is when ethanol from either a control or another unknown specimen of a sufficiently high amount “leaks” into the samples later in the batch and you identify its presence by identifying ethanol in a negative or “blank” vial;
  • There were 3 failed attempts to analyze the blood before Mr. French swooped in to perform the analysis that was reported;
  • Brina Gendhar, the analyst who performed the failed runs, advocated for the blood alcohol testing program to be shut down after the first attempted failed run on December 20, 2018;
  • Instead, she was told to try to run the same batch a second time;
  • After she attempted the run on December 21st, Mr. French tried to do a 3rd run and then the lab supervisors decided to shut down blood alcohol testing;
  • On January 4th, 2019, Mr. French spent the better part of the entire weekend in the lab trying to diagnose and fix the problems with the flame ionization detector;
  • They still to this day have not fixed the problems, instead they re-wrote the protocols to establish an acceptable and unacceptable amount of retention time shifting and carryover before “action” is required;
  • There are emails that reveal these problems went back to the fall of 2018 and Mr. Fillinger had to remind Mr. French to write out his experimentation protocols and objectives before he actually did pursuant to the lab’s protocol AND to track changes to the instrumentation;
  • Mr. French wrote a lengthy email to Capt. Beth Clark in mid-January to explain to her what the problems were. Capt. Clark is a sworn police officer with MSP who is one of the officers in charge of the lab
  • They were down to just 2 instruments, GC 7&8 because of constant problems with all the others, and;
  • French, Fillinger and Gendhar literally had a conference before the trial to discuss the situation and according to Gendhar, French was trying to anticipate how to respond to certain questions (what part of science requires a strategy session?)


I attempted to link the trial testimony of Mr. French and all of the transcripts in the

post-trial hearings and exhibits here as well as Judge Buchanan’s opinion and order granting a new trial here.

The MSP forensic science division is under a lot of pressure. Judges and prosecutors will frequently wonder “what is taking so long” when blood evidence is not analyzed. Prosecutors want their evidence and they want it to be simple, explainable and expeditious. However, the MSP forensic science division staff and leaders cannot print money or just go pick up new instruments whenever they want. The big takeaway that I hope judges and jurors who find out about this or read this article is that all of this pressure and lack of financial resources for the MSP can lead to the sort of prevarication and concealment that happened here. The judge described the situation as a lack of transparency. I call it a cover-up. The lab supervisors and staff could have used this to their advantage by doing the right thing and letting all the prosecutors, defense bar and the upper echelon of MSP as well as the legislature know what was going on. They could have used it as a clarion call and seek a new infusion of financial resources to improve and upgrade the equipment and staff. Instead, they tried to rush to put a band-aid on GC 7 & 8 and roll into court to help a prosecutor get a conviction and it backfired.

I also posit this: we will never feel comfortable as defense attorneys that we are getting totally unvarnished, detatched scientific opinions from people who work for the same governmental entity that is trying to achieve a conviction. However, a good first step is to takeaway the forensic science division from the MSP. Many states have these sorts of units in a different department, like the department of health.

Patrick ultimately pleaded guilty to a drunk driving charge with a lower gradation and significantly lesser impact on his driving privileges known as impaired driving. He was pulled over the Sunday night right after we filed a new motion on December 6th to have the charges dismissed. We argued that it was appropriate because there was no way to give him a fair trial on the retrial after everything that happened and because the judge should have granted the order to exclude the blood in the trial in the first place. He was sentenced to 6 months probation and was sentenced on the same day that his divorce became final. He still has to deal with the suspended license ticket that the deputy gave him that Sunday night in west Michigan. He says he learned a lot about what he went through. I hope he is not the only one.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.