The Denice Haraway Case: Abduction, Murder, and a Missing Child

Note: This piece is drawn from facts and information detailed in the Forensic report by the author (Brent E. Turvey, PhD) filed with Fontenot's application for relief, See: Investigative and Forensic Assessment: Abduction and Homicide of Donna "Denice" Haraway.

Donna "Denice" Haraway (24,WF) was considered to be an attractive woman, though shy and a bit awkward, by those who knew her. She was eight months into her marriage with Steven Haraway at the time of her abduction from McAnally's convenience store. She had been employed there, working the counter, for about nine months.

By all accounts, Haraway was a dedicated student, in addition to being a wife and a holding down a job. She was enrolled at a local college, working towards a teaching degree. She would even study at the store, behind the counter, when things were slow. However, she had also been receiving harassing phone calls while work. And only while at work. This caused her a great deal of concern for her safety, as she often worked alone.

The Abduction
According to law enforcement reports, Haraway was last seen at McAnally's convenience store around 8:30 P.M. on Saturday, April 28th,1984. She was the lone clerk on duty that evening. This was not uncommon.

In relation to Haraway's disappearance, a regular customer, Gene Whelchel, made three calls that evening: first he called Mr. McAnally, the owner of the store; second, he called the store manager, Monroe Atkeson; and third, he called the Ada (Oklahoma) Police Department. Mr. Whelchel explained that when he arrived at the store, the clerk was not there and the cash register drawer was open. 

Mr. Atkeson, the store manager, drove from his home to the store. Additionally, Ada PD responded to the scene.

Other relevant background is taken directly from the court's decision in Fontenot v. State (1988):

Karl Fontenot

"[Karl Fontenot] and Tommy Ward were tried for the crimes during September, 1985. In October of 1984, Tommy Ward made a statement to law enforcement officers which inculpated Fontenot, an individual named Odell Titsworth, and to a slighter degree, himself. Fontenot and Titsworth were arrested as a result and Fontenot gave a statement substantially in agreement with Ward's except that it more clearly inculpated Ward. In each Ward's and Fontenot's statements, the instigator and ringleader in the criminal acts was said to be Titsworth. However, Titsworth was eliminated as a suspect within a few days of his arrest because of clear proof the police had that he had not been an accomplice.

According to the statements of Ward and Fontenot, Haraway was robbed of approximately $150.00, abducted, and taken to the grounds behind a power plant in Ada where she was raped. According to [Fontenot's] version, she was then taken to an abandoned house behind the plant where Titsworth stabbed her to death. She was then burned along with the house. When Haraway's remains were found in Hughes County, there was no evidence of charring or of stab wounds, and there was a single bullet wound to the skull."

It is helpful to understand that Karl Fontenot and Tommy Ward were convicted of abducting and murdering Hawaray 5 months before her body was actually found.

The Murder

On Monday, January 20^th, 1986, a trapper found the partial skeletal remains of Denice Haraway; these were later identified through her dental records. The remains were located approximately 1 mile south, and 3 ½ miles west, of Gerty, Oklahoma off a county road. The remains were found scattered in a wooded area. 

The few crime scene photographs that were taken depict a skull, various scattered bones, and a conspicuous pile of bones placed on a rock. Bits and pieces of clothing and jewelry were also found at the scene, but not photographed or otherwise documented. According to Mrs. Haraway’s autopsy report, a gunshot wound to the head was reported as the probable cause of death. There was no evidence that the victim was stabbed, burned, or sexually assaulted. 

In short, every detail alleged to be provided by Fontenot and Ward to investigators about the abduction and murder of Denice Haraway turned out to be either unsubstantiated or completely false.

Post-Conviction Review

In late 2012, this author (Brent E. Turvey, PhD) was retained by attorney Tiffany Murphy to conduct a post conviction review of the facts and evidence related to the abduction and murder of Donna “Denice” Haraway, and the conviction of Karl A. Fontenot (Fontenot v. State, 1988). He was then asked to provide a professional assessment of the quality, competence, and thoroughness of the investigative and forensic efforts in this case. This assessment was conducted with the intent of determining whether sufficient investigative and forensic efforts have been undertaken to establish the facts of the case for use in related court proceedings.

There were four major findings, the last of which is perhaps the most significant.

First: The investigative and forensic efforts of law enforcement at the location of Haraway’s abduction (McAnally’s convenience store; April 28, 1984) were inadequate rising to the level of abandonment.

This prevented the recognition, preservation, collection, and testing specific items of evidence, as well as an untold volume of evidence that would have been missed.

Note: As discussed in Crowder and Turvey (2013), and Gershman (1997), professional abandonment refers to incompetence and negligence to the point of effective professional absence causing harm to the client. In effect, it also refers to the abandonment of one’s professional duty of care.

Second: The investigative efforts of law enforcement subsequent to Haraway’s abduction were inadequate rising to the level of abandonment.

Third: The investigative and forensic efforts of law enforcement at the location where Haraway’s remains were found (West of Gerty, off a county road; Monday, January 20, 1986) were inadequate rising to the level of abandonment. This prevented the recognition, preservation, collection, and testing specific items of evidence, as well as an untold volume of evidence that would have been missed.

A Missing Child
Everyone agrees that Donna Haraway had not given birth prior to her abduction. However, her remains tell a different story. The remains found West of Gerty, which are conclusively identified as those of Donna “Denice” Haraway, belong to an adult female that has given birth to at least one child through her birth canal. As stated clearly in the Report from Richard McWilliams, Phd, Consulting Forensic Anthropologist to the ME’s Office, dated January 23, 1986: “Marks on the pelvis indicate she had given birth to at least one child."

This finding means that the victim would need to have been held in captivity for up to as many as nine months in order to have given birth. Consequently, any suspects generated would need to be capable of physically holding her. They would need a place to do it, and they would need to be available to keep her alive while she was captive. This means another crime scene.

Additionally, no skeletal remains of an infant were found in association with the remains of  Donna “Denice” Haraway. This means that either those scene search efforts were inadequate to the task of finding them; that the child was killed subsequent to its birth and disposed of elsewhere; or that the child was not killed and may yet be alive. None of these possibilities have been investigated, or excluded, by investigative efforts to date.

This leads to the author's final conclusion, which is: It is unclear from the case record that anyone, whether prosecution or defense, fully understood that forensic reports indicated that the victim had given birth to at least one child. Moreover, nobody involved seemed to understand what this meant for the investigation and prosecution of Karl Fontenot. There is no evidence whatsoever that anyone focused on or followed up on this forensic finding, which is perhaps the single most important finding in this case.

In a case that already involves significant volumes of evidence (e.g., investigative reports and physical evidence) withheld from the defense, and investigative shortcomings across the board, the failure to grasp and follow up on this issue is not a surprise. However, this does not make it less important. Those interested in seeking the truth in this case, with the duty of care to do so, have an obligation to find out whether this child born subsequent to Harway's captivity was killed or perhaps remains alive to this day. The answer to that question is likely the answer to the entire case.

Hopefully, these and other relevant issues will be considered by the court in relation to the Application for Post-Conviction Relief filed by defense Attorney Tiffany Murphy late last month, on behalf of The Oklahoma Innocence Project.

See: The Oklahoman: Report sparks debate over innocence of Karl Fontenot

REFERENCES 

Chisum, J. and Turvey, B. (2011) Crime Reconstruction, 2nd ed., San Diego: Elsevier Science. 

Crowder, S. and Turvey, B. (2013) Ethical Justice: Applied Issues for Criminal Justice Students and Professionals, San Diego: Elsevier Science.

Fontenot v. State (1988) OK CR 170, 742 P.2d 31, Case Number: F-85-769. See also: Karl Fontenot v. State of Oklahoma, District Court of Pontotoc County State of Oklahoma, No. CR-88-43. Brief in Support of Application for Post-Conviction Relief.

Gershman, B. (1997) Trial Error and Misconduct, Lexis Law, Charlottesville, VA.

Forensic Science: Fraud and Error on the Rise

All across the United States, crime lab scandals have been making headlines. Not just in recent months, but for years. At the local level, this is generally perceived to be an isolated problem. The reality, however, is quite different. 

As explained in the new text Forensic Fraud: Evaluating Law Enforcement and Forensic Science Cultures in the Context of Examiner Misconduct (Elsevier, 2013), crime lab scandals related to forensic fraud and error are on the rise - worsening in the last few years. The result has been dozens of crime lab closures, tens of thousands of criminal cases thrown out and overturned, and millions of dollars in successful lawsuits against government agencies.

Forensic Fraud 
(Elsevier, 2013)

The subject remains sore and often forbidden within the forensic science community. Consequently, the frequency and conditions of its occurrence have not been researched, and incidents are regularly hidden from public scrutiny to maintain the reputations of those agencies and crime laboratories that have suffered its stain. As discussed in this new text (available in June), this is at least in part because those who have direct knowledge of forensic fraud also have a vested interest in keeping it from becoming public knowledge. 

There are a number of contributing factors: 

First, hiding or ignoring misconduct preserves the image of an examiner's agency or lab, and by extension their own reputation, out of concern for courtroom credibility and future employment prospects. 

Additionally, it must be understood that forensic practitioners are by definition involved in sensitive casework. As a function of their employment contracts, they may operate under strict confidentiality agreements or non-disclosure clauses that might preclude communication of any kind about active casework—especially that which reflects negatively on their employer. The fear of losing employment-related income (e.g., being fired), and any future employment prospects, is generally sufficient enough for most to avoid causing a breach, even when it is in the public interest. 

The majority of forensic scientists are also employed directly by police agencies or by crime labs associated with law enforcement and the prosecution. Consequently, open discussion and study of forensic fraud have long been considered a “third rail” in the forensic community. A brief explanation is necessary: the third rail is the method of providing electrical power to a railway, such as a mass transit system, by means of an exposed conductor. Anyone who touches the third rail is killed instantly by a surge of electricity. So it is with the issue of fraud. Such a discussion necessarily involves critical review of the actions and motives of law enforcement, prosecutors, and their scientific agents. These are not professional communities that are generally receptive of criticism or outside review, and they are frequently hostile to external or independent efforts involving either. Consequently, any forensic practitioner who raises these or related issues risks touching the third rail—being the object of hostility and derision within the law enforcement and government lab community, and committing career suicide in the process. This means not only the loss of employment, but also one’s friends, colleagues, and professional identity.

As a consequence of these and other related factors, the phenomenon of forensic fraud has remained a mystery ---- until now. The publication of Forensic Fraud represents the first real scientific effort to study and understand what happens when forensic scientists go bad and why - with realistic reforms. A more timely report on the state of forensic science is difficult to imagine.

In short, the research demonstrates that forensic fraud is not an isolated problem resulting from a few bad apples. Rather, it is most often the result of systemic and cultural failures, and arises primarily in association with law enforcement employed forensic personnel or those working for the prosecution. And when it is discovered, those involved are not generally fired, prosecuted, or otherwise punished - rather they are most often retained, perhaps transferred, or allowed to resign and move on to another agency where fraud can continue anew.

Forensic Fraud defines the nature of the problems in the forensic community; helps readers to understand the social contexts and personal motives that facilitate forensic fraud; provides informed strategies for mitigating forensic fraud; and ultimately seeks to keep the criminal justice system honest with itself and the public that it serves.

Some recent examples of forensic fraud, error, and other misconduct from just the past six months include the following:

1. Washington State Patrol Crime Lab
Among the most beleaguered crime lab systems in the nation at the moment, with a steady stream of scandals since 1999 (with the termination of Dr. John Brown for DNA related fraud), Lab Manager Kevin Fortney resigned his post this year while under investigation for fraud and error relating to multiple cases. 

Kevin Fortney

And it's only gotten worse since he left, with new revelations being uncovered every week. The Fortney scandal occurred while this lab system was only just healing from the fraud committed by former Lab Director Barry Logan and his subordinate Anne Marie Gordon.

2. Scottsdale Police Department Crime Lab

Scottsdale police crime lab criminalists, supervisors, and prosecutors have been arguing in court whether blood-alcohol evidence processed in the lab can trusted because of problems with equipment. They say it can. However, internal emails recently discovered to the defense paint a very different picture.

3. Onondaga County Crime Lab in Syracuse, NY

The fight between the Syracuse Police Department and the district attorney's office over who controls the Onondaga County crime lab reached a fever pitch this year, resulting in an investigation by the Inspector General's Office. No wrongdoing was uncovered at the lab, but tensions between the police department and the district attorney's office remain high.

4. Hinton Drug Lab in Jamaica Plain, Massachusetts
The Annie Dookhan scandal began unfolding in 2012. It involved dry-labbing in more than 30,000 cases, hundreds of cases overturned, and a crime 

Annie Dookhan

lab so bankrupt of scientific integrity and accountability at all levels of management that it had to be shut down. The investigation of the lab alone is still costing the state tens of millions. Though she confessed to investigators, she recently plead not guilty in court after being indicted for charges related to her many acts of fraud. 

This was far worse than the fraud committed by Debra Madden, which forced the closure of the San Francisco Police Department Crime Lab (and is only just now winding down after four longs years of dismissed cases, hidden evidence, and hypocrisy). Consequently, the Annie Dookhan scandal will go down as one of the worst in the history of the forensic sciences. 

5. Massachusetts State Police Crime Scene Services Section
Det. Lt. Kenneth F. Martin, commanding officer of the Crime Scene Services Section, was recently stripped of his command and reassigned when it was learned that he was moonlighting as a defense expert on local cases.

6. Canton-Stark County Crime Lab - Ohio
The Stark County Crime Lab has been plagued with problems for the past year. 

Michael Short

Primarily, these relate to the inability to keep a fraudulent scientist fired (criminalist Michael Short); and the improper hiring of an unqualified police officer as lab director (Rick Perez). This required the director's near immediate resignation. Currently, in part due to evidence backlogs that have come to light because of the recent leadership change, DNA testing has been halted at the lab. It is currently being outsourced to the BCI. 

7. Beckley Police Department - West Virginia

Gabriella Brown

In the kind of case that is becoming all too common in the forensic sciences (see Sonja Farak, below), Gabriella Brown, an evidence technician, was charged with stealing drugs from the evidence locker she was in charge of. She was a civilian employee of the PD, and also holds an online Masters degree in Forensic Science from Marshall University. She recently plead guilty and was sentenced to four years probation.

8. Massachusetts State Drug Lab - Amherst
Sonja Farak, a forensic chemist, was recently indicted for stealing drugs and otherwise tampering with evidence at the state drug lab in Amherst, Massachusetts. The case is ongoing.


9. California State Crime Lab - Ripon
Hermon Brown, a criminalist, was recently convicted of embezzlement in relation to the theft of methamphetamine and cocaine from his lab. He was skimming from the drugs submitted by law enforcement, which alters weights and related charges. The fraud comes from misreporting the true weights in logbooks and reports. His fraud compromised dozens of local trials where he was scheduled to testify. After a couple of years waiting trial, he plead out and took 16 months of jail time.

Test the Evidence to Make the Case; Not the Other Way Around

by Brent E. Turvey, MS

According to a recent story by ABC affiliate WSIL-TV in Illinois (Finnegan, E. (2012) "Attorneys Concerned About Crime Lab Closure," WSILTV, August 3), attorneys in Illinois have voiced concern about a plan to shut down the State Police Crime Lab in Carbondale. It is of interest to note that this lab handles a high volume of forensic casework (more than 3600 per year), and that one its employees just won an award for forensic scientist of the year for managing that high volume along with facilitating training for police and prosecutors (see "Employee wins top forensic scientist award").

This lab closure is part of an overall plan to merge the responsibilities of two separate crime labs into one at a new facility that has yet to be completed in Belleville (the 37.8 million dollar facility, shown here in an artists rendering, is scheduled for completion sometime in 2015). Among many immediate budget cuts made by Governor Pat Quinn, this specific closure will save around $230,000.00. As reported in Finnegan (2012):

The plan is to merge the Carbondale lab and one in Fairview Heights into a new, state-of-the art facility being built in Belleville; not everyone is convinced the governor's savings plan will be worth it.

"The governor and state police are doing something short sighted," said Jackson County State's Attorney Mike Wepsiec. 

Wepsiec predicts moving the work done at the Carbondale lab 80 miles north could mean major delays in cases. He's not alone.

"It's just going to clog the courts even more," said Richard Whitney, a civil rights and criminal defense attorney. 

Whitney and Wepsiec are usually on opposite sides of the courtroom. But on the closure they're in total agreement, even using the exact same phrase to describe the situation. "The old saying is justice delayed is justice denied," remarked Wepsiec, "And there's a lot of truth to that." 

"There's a saying that justice delayed is justice denied, and I think this is an illustration of it," Whitney told News 3. 

The Carbondale lab handles everything from DNA to testing drugs and even urine samples for DUIs. In the CSI-era, labs are busier than ever and already dealing with a backlog. Both men fear adding extra travel time just to get the evidence in the technicians' hands will only make things worse. 

Time is of the essence; Wepsiec explains if a suspect can't make bond or doesn't have a bond they must be tried within 120 days.

"I only see us being pushed against the wall and having to release some dangerous people before trial, because they cannot get the work done within 120 days," he said. 

Prosecutors can file for an extension and attorneys say it's likely more of those will be necessary if the Carbondale lab shuts down. For the defense, that means clients could end up spending more time behind bars. 

"You haven't done anything wrong," said Whitney, "Because you're waiting for some crime lab to go through it. That's not justice, that's an offense against our Constitutional scheme."

As a practicing forensic scientist, it is easy to agree that relying on the hard work of police examiners is essential to justice. It is also easy to agree that justice delayed is justice denied - unless of course a defendant waives that right for reasons that are both prudent and strategic, often in exchange for some concession by the prosecution. The evaluation, testing, and interpretation of physical evidence is essential to this process, whether it is done by the state or the accused. 

In addition, I agree that closing the high volume lab at Carbondale makes little sense with the three year gap in services that appears to be on the immediate horizon, as the State Police and their forensic scientists wait for the new lab to materialize in Belleville.

However, the specific concerns voiced by the attorneys quoted in this story bely an important reality about the criminal justice system in general, and physical evidence in specific, that might be missed by the average citizen. Note that the defense attorney is worried that delays in the testing of evidence means "clients could end up spending more time behind bars". And that the prosecutor is concerned about "having to release some dangerous people before trial, because [the crime lab] cannot get the work done within 120 days". These are admissions to a strange reality that both sides have come to accept as normal: the arrest of criminal suspects (and I do mean suspects) BEFORE the results of physical evidence examination and testing are known. 

It is true that a case can be made against a criminal suspect, and probable cause developed, without physical evidence (e.g., witness statements and confessions). However, if the  results of physical evidence testing (e.g., drug identification, DNA) are significant enough that their absence means releasing a suspect that is already in custody, this begs an important question. On what probable cause were the suspects arrested and being held? And how was it so weak that compelled their release in the absence of physical evidence testing?

The reality is that many criminal cases speed towards trial without the first clear insight into the physical evidence and its interpretation. Worse, many cases involve crucial physical evidence that is untested or still undergoing examination during trial. Some of the reasons are financial, some are strategic, and others are far less than honorable. 

Whatever the reason, professional detectives will attest that it unreasonable to arrest a suspect without meeting the heavy burden required by probable cause. This means they make their case and then they make an arrest. If there is dispositive evidence that needs testing, they wait for those results before breaking out the handcuffs. Consequently, whatever the results of additional forensic testing that may be needed as new evidence in uncovered, nobody getting let out of jail because of a crime lab backlog.

Professional detectives have a responsibility to investigate and develop a complete case before making an arrest and handing it off to the prosecutor's office; the unbiased prosecutor, in the pursuit of truth and justice, has a responsibility to kick back any case that is weak enough to break should post-arrest evidence testing come back negative; and the defense has an obligation to explain when the first two have failed, with a loud and certain voice, during pretrial hearings and in front of the jury if it come to that.

Bottom line: this joint complaint by the attorneys from both sides is a red flag for a reality that should be unacceptable to both - suspects in custody without the testing of physical evidence that should have been needed put them there in the first place. If the facts of a case are unknown, and physical evidence is still being tested to figure out who was involved and what happened, then making an arrest is the least reasonable thing to do. Put another way, if a prosecutor has to release a suspect because of evidence testing, then there wasn't a good case to begin with.

And on a budgetary note, it also costs more in terms of having to let people go when the evidence doesn't pan out, or enabling miscarriages of justice that result in appeals, overturned convictions, and lawsuits.

Brent E. Turvey, MS is a forensic scientist in private practice, and co-author of Crime Reconstruction, 2nd ed, and Rape Investigation Handbook, 2nd ed. He consults as a crime reconstructionist on cases involving homicide and sexual assault.

RECONSTRUCTING (UN)RELIABILITY

As a forensic scientist, I am frequently hired by attorneys in both criminal and civil cases to examine and reconstruct events that involve violent crime. Typically they are cases relating to shootings, strangulations, sexual assault, homicide, and combinations of these – especially in my capital (aka death penalty) work. As Jerry Chisum and I explain in the newly published second edition our text with the same name, Crime Reconstruction is the determination of the actions and events surrounding the commission of a crime. It can be accomplished by using the statements of witnesses, the confessions of a suspects, the statements of living victims, or by examining and interpreting physical evidence (Chisum & Turvey, 2011).

Admissibility v. Reliability

Historically, law enforcement efforts have involved less focus on physical evidence (for lack of training and understanding) and more focus on developing witness or confession evidence. This is because witness statements and confession evidence are equally admissible, while easier to understand, when compared to physical evidence.

In other words, law enforcement relies on witnesses and confessions because they can; because they do not generally need it for court when they have a person that they are able to get some version of events from. This means relying on traumatized victims, emotional family members, and even making deals with co-conspirators and jailhouse informants in exchange for testimony. It also means, for less experienced investigators, pressing suspect interviews until they get what can be characterized as an inculpatory statement that can be re-characterized as a confession – whether it is or not.

The net effect of this practice is that all witness and suspect statements are treated as sufficiently reliable evidence, and taken at face value, by law enforcement investigators because of courtroom acceptance. Admissibility, in this view, equates to reliability.

As a consequence, this is why some (not all) law enforcement investigators are willing to go further and accept unsubstantiated statements as reliable – simply because they are admissible as evidence in court. They may even go so far as to fail to investigate beyond a statement for fear of uncovering contradictions.

Regardless of acceptance by some law enforcement investigators (the same people who will rely on things that the court has actually deemed inadmissible, such as polygraphs, voice stress analysis, and even psychics), evidence reliability may not be automatically assumed in the world of forensic science.

Passing the Reliability Test

As explained previously (“Devil’s Deal: (Mis)Understanding the Alford Pleas from the ‘West Memphis 3’”) - it is important to understand that scientific fact and legal truths are not the same thing, governed by very different rules and realities (Thornton and Peterson, 2002). Scientific fact refers to information and events that have been established based on a broad factual record to a reasonable degree of objective scientific certainty by scientists using the scientific method. Legal truth refers to information and events that have been established by a court ruling based on a narrow factual record—at the discretion of a judge and/or jury (Turvey et al, 2010). This is why factually innocent people can get convicted of crimes they did not commit, and the factually guilty can avoid being convicted, depending on what is presented in courtroom and how it is perceived.

In some instances the court will want the forensic scientist to forget their science and its mandates in exchange for admissibility. They will want the forensic scientist to subordinate themselves to scientifically untenable legal rulings. We should be loath to do this, and have a responsibility make a clear record of when it is happening with our testimony or the testimony of others.

Forensic scientists must therefore not accept statements as fact simply because the police or the courts have accepted them as evidence. They must in fact apply a reliability test to any evidence that is incorporated into a reconstruction of events; otherwise, what they are doing is not scientific in practice. As explained in Chisum & Turvey (2011), in the chapter on practice standards for the reconstruction of crime, #3 provides (p.106): “Reconstructionists are responsible for determining whether the evidence they are examining is of sufficient quality to provide the basis for a reconstruction.” The best way to test the reliability of statement evidence (e.g., witness statements, confessions) is to compare it with the available physical evidence. If it comports with all of the known physical evidence and/ or is not refuted by it, then a degree of reliability has been achieved.

An uncorroborated or uninvestigated statement from any witnesses or suspect is, in general, insufficiently reliable for use in a scientific reconstruction. Statements only become reliable upon investigation and corroboration with the facts and evidence, such as when they align with the physical evidence or contain details that only the offender or someone who witnessed the crime could know. This is something that professional investigators understand from years of being burned by liars and DNA (see Savino and Turvey, 2011). Only the lazy and inexperienced, lacking good leadership, ignore these realities.

Examples of statement evidence that should scream for further investigation and demand corroboration include, but are certainly not limited to, those from:

1. Jailhouse informants;
2. Multiple jailhouse informants;
3. Co-conspirators and co-defendants;
4. Criminals (e.g., criminal competitors, drug dealers, prostitutes, and drug addicts);
5. The mentally infirm (e.g., mentally ill, under the influence of alcohol or other drugs);
6. Those with ulterior motives against suspects; and
7. Those with any criminal culpability in the crime at hand.

It is bad enough for an uncorroborated statement to make it into evidence, signaling an utter lack of investigation. But when uncorroborated statements come from someone that is inherently unreliable, or who is duplicitous for a living, then the failure to investigate and corroborate is all that more egregious. The lack of an investigation into such statements may even suggest the intentional concealment of potentially contrary evidence – and in any case demands both doubt and review (note: special thanks to my other co-author/colleague Det. John Savino, NYPD [ret.] for his help brainstorming the language and list in this section) .

Courts Catching Up with Science

In the past, I have placed the following language or something similar in my forensic reports when necessary: “Given that this witness does not appear to have been investigated for prior grievances with the defendant to rule out criminal culpability and ulterior motives, and that there is no corroborating physical evidence to support their statements, the reliability of their statements is unknown. As such they form an insufficient basis for any reliable forensic conclusions regarding the nature or sequence of events.” This to provide a scientific explanation for refusing to accept, at face value, statements from unreliable or uninvestigated witnesses.

In other cases, false statements from witnesses (or alleged victims) must be highlighted in a forensic report when their version conflicts with the evidence – and the court is expecting everyone to rely upon this conflicted version as fact.

For example, in a recent shooting case that I worked out of Mississippi (MS v. Shelton Myers; pictured), two victims were shot. They were husband and wife. The husband died at the scene, and the wife claims she was both shot and witnessed other events that she recounted in her testimony before the jury. In my reconstruction report, I noted that she had admitted to bringing a Lorcin .25 caliber pistol to the crime scene; that she had dropped it immediately upon finding the mortally wounded body of her husband in the street; and that it had possibly gone off once or twice. I also noted that police investigators recovered (4) .25 cal. shell casings from near the body of her husband, indicating that it had been fired at least four times from at or near that location. Even the crime scene investigator in the case was forced to acknowledge that she must have been lying in her testimony – that guns don’t really go off like that when they are dropped, and definitely not four times. This lie caused every other “fact” in her testimony to be doubted, and ultimately caused the jury to acquit the defendant of murder (Doherty, 2011). And rightfully so. However this lie would not have been identified had the case not been reconstructed, and had the defense not scrupulously questioned the police investigators about the possibility of a dropped gun resulting in four shots. This is something that could (should?) have been identified by police investigators, and the prosecution, much earlier, but wasn’t.

The point being that there are times when statement evidence cannot be accepted uncritically, and especially by forensic scientists, due to a lack of reliability. And the courts are finally catching up with this reality.

In New Jersey, the State Supreme Court acknowledged the general lack of reliability in eyewitness identification, and changed the rules about how such evidence may be admitted in a profound way. As explained in Weiser (2011):

The New Jersey Supreme Court, acknowledging a “troubling lack of reliability in eyewitness identifications,” issued sweeping new rules on Wednesday making it easier for defendants to challenge such evidence in criminal cases.

The court said that whenever a defendant presents evidence that a witness’s identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification.

When such disputed evidence is admitted, the court said, the judge must give detailed explanations to jurors, even in the middle of a trial, on influences that could heighten the risk of misidentification. In the past, judges held hearings on such matters, but they were far more limited.

The decision applies only in New Jersey, but is likely to have considerable impact nationally. The state’s highest court has long been considered a trailblazer in criminal law, and New Jersey has already been a leader in establishing guidelines on how judges should handle such testimony.

For the complete ruling, see: New Jersey v. Larry R. Henderson (Supreme Court ff New Jersey A-8-08, September Term 2008). See also: “NJ Judge Calls for Overhaul of Eyewitness Identification Standards,” and “N.J. courts need stricter standards for eyewitness testimony, report says.” The need for expert testimony on this issue, and for reconstructions that help corroborate or refute unreliable witness testimony, has never been so clear.

In California, a law has recently been passed (SB 687) to help ensure that no judge or jury convicts a defendant based solely on the uncorroborated testimony of a jailhouse informant. This law will, in effect, require criminal investigation that considers physical evidence as well as statement testimony, in cases where there is no direct witness to the crime. See: “Legislation Seeking to Curtail Wrongful Convictions Passes Assembly” and “Law requires corroboration of cellmate's testimony.” At least 17 other states already have similar laws.

Soon, the Supreme Court of the United States (aka SCOTUS) will revisit the question of the proper admissibility of eyewitness identifications. As explained in Liptak (2011):

Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years. What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

The unreliability of eyewitness identification is matched by its power.

The case under review is Perry v. New Hampshire, No, 10-8974. The aforementioned decision in New Jersey v. Larry R. Henderson is going to play no small part in educating the Justices regarding the current state of the literature on the fallibility of human memory and subsequent IDs.

All of this only serves to strengthen that which I was taught in the very first forensic science course that I ever attended. Regarding the reliability of physical evidence over everything else, as explained many years ago by Dr. Paul Leland Kirk (pictured), the father of modern forensic science: “This is evidence that does not forget. It is not confused by the excitement of the moment. It is not absent because human witnesses are. It is factual evidence. Physical evidence cannot be wrong; it cannot perjure itself; it cannot be wholly absent. Only its interpretation can err,” (Kirk, 1953; p. 4).

REFERENCES

Chisum, W.J. and Turvey, B. (2011) Crime Reconstruction, 2^nd Ed., San Diego: Elsevier Science.

Doherty, T. (2011) “Man found not guilty in Slaying case,” The Clarion Ledger, March 19.

Elko, B. (2011) “Law requires corroboration of cellmate's testimony,” San Francisco Chronicle, August 3; p.C2.

Kirk, P. (1953) Crime Investigation, New York: Interscience.

Liptak, A. (2011) “34 Years Later, Supreme Court Will Revisit Eyewitness IDs,” New York Times, August 22.

Savino, J. and Turvey, B. (2011) Rape Investigation Handbook, 2^nd Ed., San Diego: Elsevier Science.

Thornton, J. and Peterson, J. (2002) “The General Assumptions and Rationale of Forensic Identification,” In: Faigman, D. L., Kaye, D. H., Saks, M. J. and Sanders, J. (Eds.) Modern Scientific Evidence: The Law and Science of Expert Testimony, vol. 3, St. Paul, MN: West Publishing Co.

Turvey, B., Ferguson, C. and Petherick, W. (2010) Forensic Criminology, San Diego: Elsevier Science.

Weiser, B. (2011) “In New Jersey, Rules Are Changed on Witness IDs,” New York Times, August 24.

Kansas Bill Allows Forensic Scientists to Avoid Proper Qualification and Subvert Due Process

by Brent E. Turvey, MS

This week, legislators in the State of Kansas passed a bill that would allow crime lab reports to be entered into evidence during court proceedings without need of courtroom testimony from those who wrote them (reported in Lefler, 2011). Kansas House Bill No. 2057, by the Committee on Corrections and Juvenile Justice, provides forensic scientists working for the state with not only a blanket presumption of credibility and expertise, it also sets in place a barrier to proper expert qualification.

There are several problems with this. First, it violates the defendant's Constitutional right to due process. Second, it ignores the U.S. Supreme Court's decision in Melendez-Diaz regarding the defendant's right to confront their accuser, requiring that forensic scientists be present when their report's are entered into evidence. Third, it provides a presumption of credibility of expertise that allows crime labs to shield inept or fraudulent examinations and examiners. And finally, it leaves the interpretation of forensic reports up to the one introducing it - likely a prosecutor. Let's consider each of these briefly.

DUE PROCESS

The Fourteenth Amendment to the United States Constitution provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As discussed in Turvey and Petherick (2010), due process is essentially a fairness requirement. Any condition or treatment that tends to bias a judge, jury, or the process as a whole in favor of the state is considered in violation of due process. Ideally, citizens may only be tried and punished for crimes alleged by the state under the most impartial and unprejudiced conditions. Common examples include things like inadequate or incompetent defense counsel, access to legal counsel or private forensic experts, and failure to disclose exculpatory evidence or witnesses. In reality, the government has more money, more resources to draw from, and often benefits from a presumption of guilt held by ignorant and even partial jurors. Even under the best of conditions, due process is an ideal rather than a reality.

To abide the mandates of due process, scientists employed by the government must conduct forensic examinations in such a way as to be transparent in their methods and findings. As explained by the National Academy of Sciences (Edwards and Gotsonis, 2009; pp. 6–3):

"As a general matter, laboratory reports generated as the result of a scientific analysis should be complete and thorough. They should describe, at a minimum, methods and materials, procedures, results, and conclusions, and they should identify, as appropriate, the sources of uncertainty in the procedures and conclusions along with estimates of their scale (to indicate the level of confidence in the results).

Although it is not appropriate and practicable to provide as much detail as might be expected in a research paper, sufficient content should be provided to allow the nonscientist reader to understand what has been done and permit informed, unbiased scrutiny of the conclusion.

Some forensic laboratory reports meet this standard of reporting, but most do not. Some reports contain only identifying and agency information, a brief description of the evidence being submitted, a brief description of the types of analysis requested, and a short statement of the results (e.g., “The green, brown plant material in item #1 was identified as marijuana”). The norm is to have no description of the methods or procedures used, and most reports do not discuss measurement uncertainties or confidence limits. Many disciplines outside the forensic science disciplines have standards, templates, and protocols for data reporting. Although some of the Scientific Working Groups have a scoring system for reporting findings, they are not uniformly or consistently used.

Forensic science reports, and any courtroom testimony stemming from them, must include clear characterizations of the limitations of the analyses, including associated probabilities where possible. Courtroom testimony should be given in lay terms so that all trial participants can understand how to weight and interpret the testimony. In order to enable this, research must be undertaken to evaluate the reliability of the steps of the various identification methods and the confidence intervals associated with the overall conclusions."

In other words, notes and reports must be discovered to the defense in a timely fashion prior to trial. Scientists must willingly make themselves available to the defense for pretrial interviews about their methods and findings. They must not withhold, conceal, or distort their methods and findings—especially if their findings tend to exculpate or exonerate the defendant. And generally they must treat the prosecution and the defense equally—even if the police department or prosecutor’s office signs their paycheck.

But, as determined in the investigation of forensic science conducted by the National Academy of Science quoted above, most forensic science reports don't accomplish this. Consequently, the only way for due process to even have the chance of prevailing is for the forensic scientist to show up in court with their report in order to explain what's missing from it, and what it means. Science, it must be understood, cannot be taken at face value. It's reliability is found only in the details regarding procedures and methodology that are regularly omitted from such reports.

MELENDEZ-DIAZ

In Melendez-Diaz v. Massachusetts, the United States Supreme Court held that "Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." It further held that forensic scientists, and their evidence examination reports, are not exempt from this requirement. If a forensic science report is to be admitted, it must be accompanied in court by the actual forensic scientist who wrote it so that they might be questioned as to issues regarding its origins and reliability. They cannot simply send a crime lab report to be accepted and believed without a real live person there to vouch for what's written in it.

UNEARNED CREDIBILITY AND EXPERTISE

One of the necessary safeguards for incompetent or inexpert testimony is expert voir dire. Before a forensic expert may give testimony in court regarding any expert findings or opinions, they must first be qualified by the court as an expert, based on their education, training, or experience (and then their testimony must deemed properly admissible, which is strictly a legal question). During voir dire, the forensic expert is presented to the court by the side that has called them to testify; they are asked questions regarding their qualifications in direct examination; they are then challenged regarding their qualifications under cross-examination by opposing counsel and the court. This is true whether one is testifying on behalf of the prosecution or the defense.

Now,it is a well known fact that judicial rulings regarding who is, and who is not, an admissible expert are generally biased in favor of the prosecution, as discussed in Moreno (2004):

"Judges routinely admit expert testimony offered by prosecutors, but frequently exclude expert testimony offered by the defense. A review of federal criminal court cases reveals that 92% of prosecution experts survive defense challenges while only 33% of defense experts survive challenges by federal prosecutors. A recent study of federal appellate criminal cases found that more than 95% of prosecutors’ experts are admitted at trial, while fewer than 8% of defense experts are allowed to testify. Why do judges consistently fail to scrutinize prosecution experts? Maybe it is the uniform. The most common prosecution expert witness is a police officer or a federal agent. In state and federal criminal trials, law enforcement experts are routinely permitted to testify to opinions and conclusions derived from their on-the-job experience and personal observations. Prosecutors rely on police officer experts most frequently in narcotics cases. In drug cases, law enforcement experts are often asked to interpret ambiguous words or phrases used by the defendant and/or his coconspirators. The purpose of, and problem with, this expert testimony is that it tells jurors precisely which inculpatory inferences they should draw from the factual evidence."

While this might not seem immediately relevant in the Kansas decision, we should pause to note that many of the forensic scientists working in that state are in fact employed directly by law enforcement agencies. In any case, Kansas House Bill No. 2057 provides absolute cover from the voir dire safeguard by fast-tracking the admission of state sponsored expert findings. Like a stack of blank arrest or search warrants that have pre-signed by a judge, the problem of pre-endorsing expertise assumes too much and would encourage the worst practices. It assumes unbiased competence, as well as proper levels of education and expertise, on the part of state employed forensic scientists.

The ability to confront forensic scientists about their qualifications has uncovered enough outright state sponsored fraud that it must be protected as an invaluable tool for justice - not discarded for the sake of expediency. Frankly, this level of confidence has not been earned by the current forensic science community. As found in Turvey (2003), when forensic fraud occurs it is generally on behalf of the state (85% of the time); and as the many crime lab scandals have taught us, notions of forensic competence are often misplaced in what is widely regarded as a biased and broken forensic science system (Edwards and Gotsonis, 2009). To be very clear, presuming that those employed by the prosecution are inherently credible further tips the balance of the courtroom against the defendant, and slaps the notion of fairness across the face.

OPEN TO INTERPRETATION

Forensic science reports often contain language or findings that require explanation in order to be meaningful in a given case. This can include terms of art, or limitations of methodology, or opinions that may not be made perfectly clear in the report itself. Submitted and accepted without explanation, such reports can be extremely dangerous, and may even be abused. In the absence of a forensic scientist in court to explain the meaning of findings to judges and juries, the interpretation is left for attorneys to argue. Or worse, for prosecutors to craft and elicit from non-scientist witnesses, proving an improper veneer of authority. Anyone who argues against this point has not spent any time in court paying attention to how forensic findings are used against witnesses and in opening and closing statements. Misrepresenting findings, misstating them, and worse are quite frankly common place.

Given these issues, it hardly seems likely that Kansas House Bill No. 2057, or any similar legislation, should have been drafted at all. That it was put on paper and then passed Senate approval suggests a deep ignorance of forensic science related law and the current culture of problems in the forensic science community. It most certainly will result in challenges, and is likely to result in a multitude of overturned cases at appeal if trial judges abide. Ultimately, such a waste of the appellate court's time will cost far more than the resources that 2057 was allegedly intended to save.

REFERENCES

Edwards, H. and Gotsonis, C. (2009) Strengthening Forensic Science in the United States: A Path Forward, National Academies Press, Washington D.C.

Lefler, (2011) "Bill lets forensic experts report in writing, skip testifying," The Wichita Eagle, March 10.

Moreno, J. (2004) "What Happens When Dirty Harry Becomes an (Expert) Witness for the Prosecution?" Tulane Law Review, Vol. 79, November; pp.1–54.

Turvey, B. (2003) “Forensic Frauds: A Study of 42 Cases,” Journal of Behavioral Profiling, 4(1).

Turvey, B. and Petherick, W. (2010) "Cognitive Ethos of the Forensic Examiner," in Forensic Criminology, San Diego: Elsevier Science.