Lab Analysts May Be Required to Testify in Person in Criminal Trials

Failure to Hire DNA Expert Leads to New Trial

Written on Tuesday, January 28th, 2020 by T.C. Kelly
Filed under: ExpertWitness

A bloody sneaker was the only physical evidence introduced in the murder prosecution of Nicholas McGuffin. The blood belonged to the crime victim, Leah Freeman. Thanks to a crime lab analyst who chose not to reveal the facts, the jury never learned that DNA belonging to an unknown male — not McGuffin — was also found on the sneaker.

The jury found McGuffin guilty of the lesser crime of manslaughter. After McGuffin completed most of his 10-year sentence, a judge ruled that a diligent defense attorney would have hired a DNA expert to review the crime lab’s file and thus would have discovered the omission. The judge granted McGuffin a new trial based on his counsel’s failure to retain an expert witness.

Facts of the Case

Fifteen-year-old Leah Freeman disappeared in June of 2000. She had been dating McGuffin, who dropped her off at her best friend’s house on the day she disappeared. Freeman later stormed out of the house after arguing with her friend. No witness saw her with McGuffin again.

The police department in Coquille, Oregon assumed that the high school student ran away from home. The police came to that conclusion despite the absence of any evidence that Freeman ran away.

On the day of her disappearance, a county employee found a tennis shoe in the road. The shoe apparently resembled tennis shoes that he had recently purchased for his child, so he picked it up and brought it home. After determining that the shoe was not his child’s, he paid no attention to it until Freeman’s disappearance was publicized.

About a week after Freeman disappeared, the county employee brought the tennis shoe to the police, who had a DNA test conducted. The test showed that the shoe belonged to Freeman.

The next day, the matching shoe was discovered by a Coos County Sheriff’s deputy in “a spot often used by local teens as a place to drink and hang out.” That spot was about ten miles from the location where the first shoe was found. During a casual conversation with a Coquille police officer, the deputy realized that the two shoes formed a pair.

Freeman’s blood was on the bottom of both shoes. The DNA of the deputy who found the second shoe was present on that shoe. The DNA of an unknown male was also found on the second shoe, but the state crime lab employee who wrote the report failed to include that critical fact.

About a month after the discovery of the second shoe, Freeman’s body was found. The body was badly decomposed. The medical examiner concluded that Freeman died from “homicidal violence” of some kind, although he could not identify a more specific cause of death.

McGuffin’s Trial

Having no evidence that pointed to a particular suspect as Freeman’s murderer, the Coquille police allowed the investigation to languish. The Coos County district attorney was displeased that an unsolved murder had occurred on his watch, but his efforts to light a fire under the police chief were unsuccessful.

Nine years later, the district attorney persuaded the new police chief to reopen the investigation. He then discovered that the police had collected a large body of evidence that he had never seen. From that evidence, he developed a list of a dozen suspects. McGuffin was on that list because he had been dating Freeman and their relationship was reportedly troubled.

The police eliminated all of the suspects but McGuffin, so the district attorney unwisely decided to charge McGuffin with the crime. “We can’t eliminate this person as a suspect” is a poor basis for subjecting someone to the risk of a criminal conviction. Most teen relationships are troubled, but the fact that a boy argues with his girlfriend falls well short of proof of guilt.

At McGuffin’s trial, the district attorney emphasized that no DNA pointed to the existence of an alternative suspect. He relied on the DNA report as evidence that no other male had touched McGuffin or her clothing.

A jury convicted McGuffin on a vote of 10-2. Oregon is the only state that permits a criminal verdict to be less than unanimous. Fortunately, every other state recognizes that wrongful convictions are less likely to occur when all twelve jurors agree on a defendant’s guilt.

Failure to Hire Defense Expert

McGuffin’s defense attorney asked for the crime lab file. The district attorney told the press that he assumed the defense lawyer would have an expert witness review the file. Apparently, the district attorney did not review the file either, perhaps on the assumption that the crime lab employee included all relevant information in her report.

Data about the unknown male’s DNA appeared in the bench notes contained in the file but, since it wasn’t in the report, the district attorney contends that neither lawyer was aware of that DNA at the time of trial. Both lawyers should be faulted for failing to pay more attention to the contents of the file, as opposed to the filtered contents of an analyst’s report.

The Oregon Innocence Project reviewed the case in 2015. Innocence Project lawyers reviewed the crime lab file, consulted with an expert, and determined that McGuffin never knew that DNA on Freeman’s shoes belonged to an unknown male. A new analysis discovered that the unknown male had left DNA on both shoes.

Since the shoes were discovered at different times in different locations by different people, the likelihood is that the unknown male is the actual killer. The judge who considered McGuffin’s request for a new trial found that “the DNA is not from the various males associated with the case.” That finding undercuts the district attorney’s unsupported speculation that the same ungloved police officer might have handled both shoes.

The failure to disclose the existence of DNA that was known to the crime lab was compounded by the misleading testimony of crime lab employee Kathy Wilcox, who told the jury “that the only DNA evidence found on Freeman’s blood-spattered Nike sneakers belonged to the victim and to a sheriff’s deputy who had handled the evidence.” That testimony was blatantly untrue.

The judge did not fault the district attorney, who claims he was unaware of state crime lab protocols that purportedly gave analysts discretion to ignore small DNA samples. Whether that is a correct statement of the crime lab protocol is a disputed fact that the judge did not resolve. If that protocol existed, it allowed (and perhaps encouraged) crime lab employees to ignore evidence that was inconsistent with the prosecution’s theory of guilt.

Lessons Learned

The judge ultimately decided that McGuffin was deprived of his constitutional right to the effective assistance of counsel. A reasonably prudent lawyer would have hired an independent DNA expert to review the crime lab report. Had counsel done so, the jury may well have concluded that McGuffin was innocent.

Given the propensity of some state crime lab employees to slant their testimony to favor the police and prosecutors, defense counsel should always hire an independent expert whenever forensic results of crime lab investigations are important to a criminal prosecution. McGuffin’s case illustrates the important role that independent experts play in the criminal justice system.

Fortunately for McGuffin, the district attorney has decided not to seek a retrial. The independent experts who were belatedly retained on McGuffin’s behalf thus helped him win his freedom and restored his opportunity to live his life.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.