Railroaded By Forensic Experts: Freed by DNA

In 1992, Kennedy Brewer was convicted and sentenced to death in Noxubee County Mississippi. He was accused of raping and killing a 3-year-old girl. Levon Brooks, was sentenced to life in prison for a separate but similar crime, the rape and murder of another 3-year old child. The Noxubee County Sheriff flippantly stated that a possible DNA match could not be sought on either case due to Mississippi’s lack of a DNA database -- this revelation was news to Mississippi’s crime lab director.

Ten years passed before both men were cleared of any involvement in the crimes. The actual perpetrator, Albert Johnson, confessed to both homicides. To top it off, DNA evidence supported Johnson’s confession. Despite the confession and the new evidence, and in defiance of all common rationality, both men spent an additional 5 years awaiting retrial in local jails. This was due to the fact that Forrest Allgood, the Noxubee County prosecutor, was anxious to bring back his star witnesses, medical examiner Steven Hayne, and forensic odontologist Dr. Michael West.

For two decades, Hayne has been responsible for about 80% of the autopsies conducted in the state of Mississippi. On April 8, 2008, the Innocence Project and the Mississippi Innocence Project collaborated on a formal allegation calling for the revocation of Haynes license to continue practicing medicine. The 1000-page document cited evidence of misconduct and fraudulent testimony that has sent an undetermined number of innocent people to prison, and in some cases, death row.

By many accounts, Michael West is even worse than Hayne. His bite mark testimony has already been disproven by DNA in various instances other than the Brewer and Brooks cases. Consequently, West resigned from professional odontology groups in order to avoid sanctions and possible expulsion.

In an unprecedented move, under pressure from The Innocence Project, Mississippi Attorney General Jim Hood revoked the county’s prosecutorial authority and paved the way for the exonerations of Brewer (February 2008) and Brooks (March 2008). Speaking for The Innocence Project, Peter Neufeld stated, "In two decades of working on these cases, we have never seen a more stark and troubling example of a rush to judgment at the hands of notorious forensic analysts who conspired to commit fraud."

Michael J. Spence, Ph.D.


March 21, 2012

Eddie Lowery

In 1981, Eddie Lowery was serving our country as a soldier in the U.S. Army, stationed at Fort Riley, Kansas. He and his wife were raising their 3-year old daughter in the tiny community of Ogden. On the evening of July 26, 1981, Eddie was attending a get-together with friends. When he decided to step out and make a trip to a nearby store, his life was changed forever. The catastrophic events were set into motion when Eddie accidentally hit a parked car. Once the police arrived to assess the incident, Eddie cooperated and spoke with the officers-giving them the details they requested.

When Eddie arrived at the police station the following day, law enforcement officers began questioning him about the rape of an elderly Ogden woman. The police were intrigued that the sexual assault had taken place very close to the time and location of Eddie's mishap with the parked vehicle. Of course, Eddie denied any knowledge or association with the terrible crime. However, investigators insisted that he return the next day for more questioning. “I thought I’d tell them what happened and they’d believe me and I’d go back to my normal life,” Lowery said. The investigators became fixated on Eddie, with their interrogation tactics becoming increasingly aggressive. The officials denied Eddie's request for an attorney and they provided NO opportunity to place any phone calls.

Ultimately, Eddie agreed to take a lie detector test. “I wanted to clear my name. I wanted to help,” he said. Eddie's tormentors violated any and all investigative standards, .....they lied. They told Eddie that he had failed the lie detector test. Convinced that the fender bender in the victim's neighborhood was NOT a coincidence, the police relentlessly badgered and threatened Eddie.

After hours of this torture, the man simply broke down. “I was totally mentally exhausted,” Eddie said. “I didn’t know how to get out of the situation.” To bolster the validity of the ill-gotten, entirely false confession, the investigators began spoon-feeding the facts of the case to their prisoner. Eddie merely repeated the information back to them. He did whatever it took to please them. The interview was NOT recorded. “I beat myself up for years for giving them a false confession,” Lowery said. “They had no other evidence. ... Because I wasn’t there.”

The foundation of Eddie's rape trial was centered entirely on the ridiculously flawed confession. His first trial resulted in a hung jury, but during the second trial the jury convicted him of rape, aggravated battery, and aggravated assault. At age 22, Eddie received a sentence of 11 years to life. He was sent to the Lansing Correctional Facility. During his time in prison, Eddie never had an opportunity to see his daughter. The young girl grew up without him.

On three occasions, Eddie went before his parole board. Each time, he denied involvement in the rape. With the years passing him by, Eddie FINALLY DECIDED TO LIE ABOUT THE RAPE. He told his parole board that he did it. He told them that he was sorry for committing a crime that-IN REALITY-he did not commit and simply could NEVER commit. Pleased with this revelation, the parole board allowed Eddie to advance through the system and complete the required sex offender course, where he had to CONTINUE LYING about his life as a rapist. In 1991, after serving ten years in prison, Eddie was finally paroled. But his life for many years to come had been all but ruined.

Eddie moved to Kansas City, found employment, remarried, and had two children. In 1994, he received a letter informing him that-due to a new law-he was obligated to register as a sex offender. “I assumed everyone would find out. It just put me in a deep depression. It was a humiliating time in my life,” Eddie said.

A few years later, he began hearing about how DNA testing was helping to exonerate the wrongfully convicted.

Eddie was fortunate to secure the assistance of Manhattan, Kansas attorney, Barry Clark, and the New York-based Innocence Project. Through a great deal of harrowing efforts, Barry and Eddie were eventually able to locate the original rape kit, which was still in an envelope in the Riley County, Kansas records vault. “When he (Clark) told me that they found the rape kit, I knew that I was going to be found innocent of this crime,” Eddie said.

As it so often happens, DNA testing provided freedom to yet another innocent individual. In this case, the wrongfully punished man was no longer incarcerated. However, Eddie was able to gain back at least a SEGMENT of that which had been stolen from him years earlier. On April 3, 2003, Eddie was officially declared innocent of the crime--based on the DNA evidence. The cowardly detectives who pressured him into a false confession have never expressed remorse to Eddie Lowery. The cowardly prosecutor, to this day, refuses to admit that Eddie could not have possibly had anything to do with sexually assaulting the 74-year old victim. Sometimes people have to embrace concepts of denial such as this, ....otherwise seeing themselves in the mirror each day is simply too unbearable.

As a consequence of the scientific testing, and the power of the DNA database, law enforcement officials were able to identify Daniel Brewer as the perpetrator of the sexual assault on July 26, 1981 in Ogden, Kansas. Brewer, who was residing in New York, NY, was extradited to Kansas, charged, and convicted of not just one, but TWO sexual assaults.

THE HORRIFYING TRUTH: The law enforcement officials and prosecutors who badgered and convicted Eddie Lowery had become keenly aware of multiple sexual assault incidents in the tiny community of Ogden, Kansas, ....each occurring very close to the time frame when Eddie was brought in and bullied into a confession. What did these geniuses think? That TWO serial rapists were prowling that one microscopic Kansas town at precisely same time? Brilliant. As a consequence of his wrongful conviction and exoneration, Eddie Lowery was justifiably awarded $7.5 million dollars. This burden was carried by the taxpayers of Riley County, Kansas. This is yet another stunning example of the countless misguided efforts to investigate and prosecute crimes.

Michael J. Spence, Ph.D.


March 14, 2012

Understanding DNA Transfer Events

Previously, I discussed the circumstances that might persuade defense attorneys to explore using a DNA expert. One of these perplexing circumstances is driven—in part—by astonishing advances in the sensitivity of DNA detection. Recent DNA technologies, referred to as LOW COPY NUMBER (LCN) analysis (also called ‘low template’, ‘high sensitivity’, or ‘trace DNA’ analysis) allows crime lab analysts to PUSH DNA DETECTION CAPABILITIES to the point at which useful data is obtained from only 15-20 cells, or perhaps as few as just 1 or 2 cells. Such extremes in testing sensitivity are causing courtroom battles to emerge, due to the mere LIMITATIONS OF SCIENTIFIC ACCEPTANCE. Adding fuel to this fire, these conflicts intensify significantly when DNA expert witnesses fall into the trap I prefer to call the 'touch DNA misnomer'.

Embracing the phrase "touch DNA" on the witness stand, with NO scientific proof that touching ever occurred, is the 2011-2012 idiotic equivalent of yesteryear's 'DNA Fingerprinting misnomer'. STR-based forensic DNA typing technology involves NO examination of fingers. Nor does it relate to latent print examinations, an entirely separate forensic discipline. Why do some individuals insist upon confusing society with terms that simply do not apply?

 

HOW DOES ANY TYPE OF TRACE MATERIAL END UP ON A SPECIFIC SURFACE?

In 1910, Dr. Edmond Locard, professor of forensic medicine at the University of Lyons, France, was the founder of the world's first forensic science lab. This great scientist was also the first forensic scientist to formally emphasize the importance of transfer events in the investigation of crimes.

Dr. Locard's incredible intuition evolved into the time-tested Locard Exchange Principal, stating that "Every contact leaves a trace." Locard's principal became universally accepted over forty years BEFORE James Watson and Francis Crick proposed the first accurate model of the DNA double helix. The exchange principal was also widely embraced over seventy years BEFORE Colin Pitchfork became the first person to be identified and convicted of a crime, using the power of DNA typing.

As an insult to the celebrated history of Dr. Locard's principal, *some* modern day prosecutors—with the support of their crime lab analysts—attempt to downplay the plausibility of DNA transfer events. Despite the fact that the crime scenes are crawling with CSI's who enthusiastically center their efforts on Locard's teachings, some courtroom comedians are allowed to drone on with their ridiculous folly of reasoning. JURORS PLEASE TAKE NOTE: TRACE MATERIAL EXCHANGE EVENTS ARE NOT THE PRODUCT OF OVERACTIVE SCIENTIFIC IMAGINATIONS.

The ludicrous efforts to downplay Locard are readily invalidated. EVERY WINTER—new strains of common cold viruses and influenza viruses succeed with their inevitable campaigns of terror throughout earth's human population. How do these prosecutors and their supporting scientists (and I am using the term ‘scientists’ loosely) suppose these viruses are so swiftly spread from human to human?

During a particularly frosty stretch of weather, look around, visit various homes, take a stroll through the local mall. Nasal cavities are draining, infected individuals are coughing and sneezing. Crumpled up facial tissues are strewn EVERYWHERE. Those tissues came from the people who are actually considerate enough to use a Kleenex every now and then—rather than their shirt sleeves OR THEIR HANDS.

Trillions of viral particles are spread by the actions of the infected, ….to door handles, telephones, computer keyboards, car keys, steering wheels, stairway railings, currency, vending machines, TV remote controls, pens, pencils, clothing, bedding, the list is endless. Each year, we are BEGGED by the Centers for Disease Control to “Wash your hands!” Any healthy person, who fails to wash his hands, and makes the mistake of rubbing his own tired eyes, ….well, ….you do the math. It takes a number of days for viral particles to establish a foothold in a human respiratory system.

DNA differs very little from viruses. Yes, our genetic molecules are much more friendly, and not very invasive. DNA causes no sore throats, no runny noses, and no coughs. Beyond that, DNA and viruses are quite similar in that they are both submicroscopic clumps of matter. Transfer events DO occur with BOTH forms of matter. Please do not let any courtroom snake oil representatives succeed in convincing you otherwise.

Today's state-of-the-art DNA detection technology can decipher a full DNA profile from less than one BILLIONTH of a gram of DNA. One way to grasp such extraordinarily tiny amounts of DNA is to visualize the mass of material in a standard packet of artificial sweetener. These packets contain one gram of material. Imagine setting aside 1/1000th of a single packet and disposing of the remaining 999 parts. The spec of powder set aside would weigh one milligram. Now imagine setting aside 1/1000th of this milligram and discarding the remainder. You now have one microgram of material (which is 1/1 millionth of the original sweetener packet). This amount of material cannot be clearly seen without the use of a microscope. By some means, you must now set aside 1/1000th of your microgram of artificial sweetener-this is one nanogram, or 1/1 BILLIONTH of the original starting material. One nanogram of DNA is PLENTY of genetic material for generating a FULL DNA profile. The astonishing sensitivity of forensic DNA typing technology does not diminish the fact that we are indeed working with a profoundly tiny mass of DNA.

Scientific debates focusing on the mechanisms of casual/incidental transfer events, involving such tiny amounts of DNA, are far from settled. In December 2010, some of the world's most renowned authorities on forensic trace DNA (Roland Oorschot, Kaye Ballantyne, and R. John Mitchell), published a REVIEW in Investigative Genetics. Quoting these authors directly from the "Transfer Issues" section of the review:

"Greater effort needs to be made by police/crime investigators to investigate how a DNA sample arrived at the location where it was found, as well as by scientists to better understand the impact of activities on the relative amounts of DNA from particular sources at a crime scene. In some instances, it is possible to derive the chain of events that led to a trace DNA sample being present at a crime scene - for example, prior visits to the scene or the known use of an item. Awareness of these variables, and their impact on transfer events, will assist in weighting the likelihood of proposed alternative scenarios." 

In 2010, Allan Jamieson and Georgina Meakin of The Forensic Institute (Glasgow, UK), published an article in The Barrister Magazine entitled: "EXPERIENCE IS THE NAME THAT EVERYONE GIVES TO THEIR MISTAKES"

The following is a quote from this article:

"The examination of evidence for handler DNA can reveal DNA of people who have, or have not, handled the item; the stronger profile may, or may not, be the person who last handled the item; An inference of direct contact between an individual and the item may or may not be supportable, depending on the circumstances of the case. In other words, we did not know enough to make any sensible scientific judgements as to how DNA came to be on an item." 

Later, the article continues:

"Frequently, the underlying hypothesis is that touching, or direct contact, is a more likely scientific explanation for the finding of a DNA profile on an item than indirect contact. This to the extent that it may be described as providing ‘extremely strong’ support for direct versus indirect transfer.  In our view, such an opinion on DNA transfer is not supportable based on case experience or on the available scientific research."

Finally, a 2009 article in Law Officer (a journal for police and law enforcement) is entitled: 'TRANSFER THEORY IN FORENSIC DNA ANALYSIS'. The author, Suzanna Ryan, arrived at the conclusion:

"Obviously, the inadvertent transfer of DNA is an area that should be further studied. Since so many of the available journal articles present conflicting information, more work is needed to see how likely it is to both transfer and detect DNA in a secondary or even a tertiary fashion, especially considering the sensitivity of modern forensic DNA analysis."

It is vital to keep in mind that the average adult human sheds approximately 36,000 skin cells every 60 seconds. This number varies broadly among individuals, as there are profound differences between those who can be characterized as 'good shedders', and others who are 'poor shedders'.

A single drop of saliva, expelled during a cough or a sneeze, will contain approximately 500,000 salivary epithelial cells. Forensic Biologists can attest to the fact that 500 to 10,000 nanograms of DNA are routinely recovered during collection of a single oral swab. Once again, recall that ONLY ONE NANOGRAM is optimal for generating a complete DNA profile. This mass of DNA can be readily extracted from as few as 200 cells. This tiny number of cells could sit-nearly invisible-upon the very tip of a toothpick.

How many falsely accused individuals have been wrongfully imprisoned as a consequence of a few hundred cells finding their way to an incriminating location?

Michael J. Spence, Ph.D.


March 7, 2012

The Norfolk Four

About a year ago, I crafted an article on my website, listed under "Most Fascinating Criminal Cases". This piece centered on The Norfolk Four, ....and what appeared to me as one of the worst ever U.S. cases of false confessions. The case also seemed to be one of the worst instances EVER of a reckless disregard for investigative responsibility and adherence to logic.

"The Confessions", aired on PBS November 9, 2010.

http://www.pbs.org/wgbh/pages/frontline/the-confessions/

This case involved the investigation and conviction of four men -- current and former sailors in the U.S. Navy -- for the 1997 rape/homicide of a young woman in Norfolk, Virginia. Frontline’s coverage of the “Norfolk Four” revealed malicious, high-pressure police interrogation techniques -- the threat of the death penalty, sleep deprivation, and intimidation. The outrageous, irresponsible tactics caused each of the men to confess, despite the glaring lack of any evidence linking any of them to the crime. When the dust settled, eight men had been charged. Five of those men had been coerced into confessions, .....four of them false. Most baffling, .......only ONE DNA profile had been recovered from the case evidence.

Twenty-five-year-old Danial Williams, married for 11 days, was the first to be arrested for the rape/murder of Michelle Bosko. Williams attempted to explain to FRONTLINE how he came to confess after a brutal, humiliating interrogation that spanned ELEVEN HOURS.

When Williams FINALLY confessed, the details were not consistent with the physical evidence. Instead of doubting the validity of the confession, investigators badgered Williams into a ‘revised’ confession that presented a 'better fit' to the crime scene evidence.

Williams' DNA failed to match the DNA observed from Ms. Bosko's sexual assault kit, Of course, this pesky little DNA hiccup did not create any doubt among the investigators. Instead, they simply addressed the glitch by hauling in Williams' roommate, Joe Dick. Yes, the investigators launched yet another interrogation.

Dick's interrogation was conducted by one of Norfolk's most formidable detectives, Robert Glenn Ford, who had a reputation for getting confessions. Utlimately, Ford delivered a second confession, ......from a second suspect. Detective Ford was SO formidable, Joe Dick actually began to believe in his own guilt. Dick proceeded to implicate another sailor, Eric Wilson. Another startling development, .....the police eventually hammered out their THIRD confession.

At some point, one might expect law enforcement officials to view three confessions (with ONE DNA profile) as a sufficient number of defendants. No, the police relentlessly plowed ahead. In the end, four men confessed to the rape and murder of Michelle Bosko. Another three men were arrested before an eighth man, a convicted rapist named Omar Ballard, was found to be the only DNA match with the sexual assault evidence.

Ballard confessed to the rape and murder of Michelle Bosko. Furthermore, Ballard made it clear that he did it alone -- a statement that was consistent with the physical evidence uncovered at the crime scene. However, with a significant percentage of the U.S. Navy already incarcerated for this ONE crime, the police and prosecution refused to change course. Instead, they presented a new theory of the crime.

The investigative team presented their theory that seven guys were pacing around the parking lot. The group of men were contemplating how they might break into an apartment in order to rape and murder a young woman. At that moment, Omar Ballard happened to be strolling by. The aspiring rapists/murderers decided to approach Ballard -- a complete stranger -- and inquire if he had any thoughts on the matter. Before long, all eight men managed to squeeze into the tiny apartment and proceeded with their brutal plan.

Of course, NO witnesses ever came forward, to corroborate the collection of men in the parking lot. Nobody ever reported the wild group, .....forcing their way into the apartment. And lastly, not a soul remembered hearing a disturbance consistent with such a series of events involving so many people. From an initial theory of a single assailant, namely Danial Williams, the prosecution theory had now evolved into a profoundly improbable tale. Such a scenario might as well have been cooked up by a babbling mental patient.

All four sailors are now out of prison -- one served his sentence, and the other three were granted conditional pardons, after some 11 years in prison. But the men were not exonerated as felons or sex offenders.

Imagine everyone's surprise when, in the summer of 2010, Detective Robert Glenn Ford was indicted for extorting money from defendants in exchange for getting them favorable treatment. He was tried in U.S. District Court in Norfolk and took the stand in his own defense. On October 27, 2010, Ford was found guilty on two of four extortion charges and one charge of lying to the FBI.

 

Michael J. Spence, Ph.D.


February 29, 2012