Criminal Justice Section
Criminal Justice Magazine
Volume 18 Issue 1
Paul C. Giannelli
Paul C. Giannelli is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law, Case Western Reserve University. He is coauthor of Scientific Evidence (Lexis 3d ed. 1999) and writes on expert testimony and forensic science. He is also a contributing editor to Criminal Justice magazine and a member of its editorial board.
Most people simply do not appreciate how difficult it is to fabricate laboratory and autopsy reports. It’s definitely more of an art than a science. There were few reported cases in the 1970s. ( See State v. Ruybal, 408 A.2d 1284, 1285 (Me. 1979) (FBI analyst "reported results of lab tests that he did not in fact conduct."); State v. DeFronzo, 394 N.E.2d 1027, 1031 (Ohio C.P. 1978) (Expert represented that certain lab tests were conducted when "no such tests were ever conducted.").) The landscape has changed rather dramatically since that bygone era. Some world-class fabricators have surfaced.
Without doubt, Dr. Ralph Erdmann, a Texas pathologist, was one of the best. Suspicion first arose when Dr. Erdmann listed the weight of a decedent’s spleen in an autopsy report, a surprising development for the relatives who knew that the spleen had been removed years earlier. In another case Erdmann ruled that a 16-month-old child died from a blow to the stomach, a finding that led to the murder indictment of the child’s father. A second autopsy, conducted by different pathologists, cited drowning as the cause of death, a conclusion consistent with the father’s version of an accidental death.
But the defense was not the only side hurt by Dr. Ralph’s misconduct. He also declared that murder victims had died "due to natural causes." For example, after one "autopsy," Erdmann declared that a man found in a dumpster had died of pneumonia and hypothermia. Two weeks later, when the police stopped a person driving the victim’s car, the driver blurted out, "Look man, I took his car, but I didn’t shoot him in the head." An insightful district attorney later remarked, "In law enforcement, we call that a clue."
The possibility of pro-government bias was also suggested. As the special prosecutor put it, "If the prosecution theory was that death was caused by a Martian death ray, then that was what he reported." And another medical examiner opined that Erdmann routinely performed "made-to-order autopsies that support a police version of a story." Some of his testimony was simply astounding. For example, in one case he pinpointed the time of death to within a half-hour, which fitted quite nicely with the prosecution theory of the case. It is difficult to believe that an experienced prosecutor would have offered such flawed testimony.
After Erdmann was exposed, one prosecutor remarked: "[C]all him ‘McErdmann, . . .’ He’s like McDonald’s—billions served," and cops referred to his "drive-by autopsies." The contrast between these devastating hindsight observations and a decade of silence while innocent people were convicted and murders went unsolved is striking.
The latest nomination for the pantheon of fabricators is Joyce Gilchrist of the Oklahoma City police laboratory. A FBI report reviewing eight of her hair and fiber cases found misidentifications or overstatements in five. Judges, lawyers, colleagues, and professional organizations had long criticized her work. She was expelled from one organization, but was promoted and lauded in the police department. Over a thousand cases are under review, 23 of which were death penalty cases. Jeffrey Pierce spent 15 years in prison, based primarily on her analysis. DNA set him free. On January 6, 2000, Malcolm Rent Johnson was executed for rape and murder. When her colleagues reviewed the evidence slides in the Johnson prosecution, they reportedly found no sperm on the critical slide.
Then, there’s Fred Zain, the former head serologist of the West Virginia State Police crime laboratory. Trooper Fred has been on CBS’s 60 minutes and 60 Minutes II and NBC’s Dateline. He appears to need an agent. He also starred in a judicial opinion investigating his conduct, one in which the West Virginia Supreme Court spoke of "shocking and egregious violations," "corruption of our legal system," and "mock[ing] the ideal of justice under law." (In re Investigation of W. Va. State Police Crime Lab., Serology Div., 438 S.E.2d 501 (W. Va. 1993).) Fred’s faults fell into several categories: (1) overstating the strength of results; (2) overstating the frequency of genetic matches on individual pieces of evidence; (3) misreporting the frequency of genetic matches on multiple pieces of evidence; (4) reporting that multiple items of evidence had been tested, when only a single item had been tested; (5) reporting inconclusive results as conclusive; (6) repeatedly altering laboratory records; (7) grouping results to create the erroneous impression that genetic markers had been obtained from all samples tested; (8) failing to report conflicting results; (9) failing to conduct or to report conducting additional testing to resolve conflicting results; (10) implying a match with a suspect when testing supported only a match with the victim; and (11) reporting scientifically impossible or improbable results. (He also wore too much makeup for his 60 Minutes interview.)
A team from the American Society of Crime Lab Directors found that "when in doubt, Zain’s findings would always inculpate the suspect." ( Id. at 512 n.9.) After Zain left to accept a position in the San Antonio crime lab, prosecutors continued to send evidence to him for retesting because the West Virginia serologists apparently could not reach the "right" results. One serologist testified that at least twice after Zain left the lab, evidence on which that serologist had been unable to obtain genetic markers was subsequently sent to Texas for testing by Zain "who again was able to identify genetic markers." ( Id. at 512.)
The case against the Maguires developed out of an investigation of an IRA terrorist bombing of a public house in Guilford on October 5, 1974. The Guilford Four, whose story was told in the movie In the Name of the Father, were convicted of the crime. After spending 14 years in prison, they were exonerated. The Maguires were related to Gerard Conlon, one of the Guilford Four, and their house was searched for explosives and related paraphernalia as part of the investigation.
The prosecution experts used thin layer chromatography (TLC) to detect nitroglycerine. At trial, these experts testified that this test was specific for nitroglycerine and no other substance—"the tests were like fingerprints." Moreover, "innocent contamination" was not possible. According to these experts, the presence of nitroglycerine under the fingernails meant that the defendants had manipulated or kneaded explosives and not merely touched a contaminated surface.
When subsequent events raised serious questions about the Guilford Four and Maguire Seven prosecutions, the Home Secretary appointed Sir John May to conduct a judicial inquiry. The inquiry uncovered problems concerning the prosecution’s scientific proof. First, the discovery, near the end of trial, of a prosecution memorandum showed that the TLC test was not specific for nitroglycerine as had been asserted. Second, research conducted after the trial, including a report written by one of the prosecution experts, showed that innocent contamination was possible. Thus, the underpinnings for the prosecution’s case "was proved not only to be scientifically false, but also known to be so by all concerned parties and scientists by the trial’s eleventh hour discovery of an intra-[lab] memorandum dated six months prior to the Maguires’ arrest." (Starrs, The Forensic Scientist and the Open Mind, 31 J. Forensic Sci. Soc’y 111, 141–42 (1991).)
Somehow it’s hard to believe that the Brits would have these kinds of problems. This is not what one would expect from the folks on the BBC’s Masterpiece Theater. But remember, the Brits also include those soccer "fans."
This is not a tale only of experts gone astray. What about the lawyers? The prosecutors who used this type of evidence for decades? The defense attorneys who failed to challenge this evidence year after year? The judges who admitted it? We all share in this shame. ( See generally Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y. & L. 439 (Spring 1997).)