Mara Leveritt's website carries this letter from Jason Baldwin's attorney, John Philipsborn, reprinted by permission.
A newspaper article with a very poor overall description of the problems involved in the forensic sciences analysis of the West Memphis Three case, together with your initial response were just forwarded to me. Ironically, I am in the midst of litigation in another capital case in which forensic science issues are being litigated, with much more openness and purpose than in the West Memphis case.
I would hope, since you have commented on the problems related to the West Memphis case, that you and others who know about the case will continue to underscore that the intersection between some poorly analyzed scientific evidence and lack of inquiry and consultation by State experts and by defense counsel left a number of matters improperly addressed for years.
I applaud the Arkansas Crime Lab Director Kermit Channell who seems to recognize that the cautionary tale from the case is that errors need to be avoided–and who, when compared to other experts used by the State at trial, had done his bench work correctly, and documented it properly–even though (as pointed out in the Baldwin/Misskelley hearings in 2008-9) his testimony left the impression that there was identifiable biological material on some cuttings from victims’ pants when there was no clearly identifiable material there. The fault, on the point, however, was that defense counsel had not obtained Lab notes/or bench notes of his analysis, and consulted with knowledgeable experts to gain information about how his testimony was being shaded–and could be corrected. In other words–if asked by properly prepared defense counsel, Mr. Channell would likely have clarified that there was no way of identifying biological material on the pants because of the level of bacterial contamination on them by the time they got to the Lab.
Same with the State’s pathetic DNA expert, who was not employed by the Crime Lab, and who since has left the DNA experts’ ranks because of incompetence and erroneous testimony. His testimony about having been able to identify male biological material on the pants cuttings was not only erroneous–but if properly clarified, Kermit Channell’s findings would have contradicted those.
There is little doubt that the State’s expert on pathology Dr. Perretti is of the view that he was right about his initial findings, and that he is of the opinion that more than 5 other experts in pathology and odontology (for our purposes tooth mark expertise) are wrong and ‘paid hacks’. Of course, because of our own budget limitations, some of these ‘paid hacks’ were paid much less than their going rate to work on the case, and travel to Arkansas to testify. The pathologists who reviewed the case at our request included: two from New York; one from Texas; one from Minnesota; one from Michigan; one from California. The odontologists included the Chief of Odonotology at the Miami/Dade Medical Examiner’s Office; the odontologic consultant to the Goudge Inquiry in Canada which involved leading experts who were inquiring into mistakes made in child death cases in Ontario, Canada; a Chief of Odontology from Tennessee. The defense pathologists included three prior head pathologists from three separate Medical Examiner’s Offices.
These are not people who need business, or attention. They already have it. Several have contributed to leading textbooks and literature on forensic pathology. Indeed, the writer of the recent newspaper article failed to find out how the subject of possible errors in the findings by Dr. Perretti were first discussed. They came up in a hearing involving Damien Echols in 1998, though no one but the Judge (Judge Burnett) actually seemed to notice the issue. A pathologist from the New York Medical Examiner’s Office was testifying about another subject and mentioned in passing that he thought that some of the injuries to one of the victims looked to him as though aquatic animals had caused them. Given the number of autopsies done yearly in New York (where there are a number of rivers), one can readily understand that a pathologist with the Medical Examiner’s Office there would sometimes focus on damage that has been done by animal life.
This observation led me, after I read it and thought a bit about it, to contact a pathologist with expertise in pediatric cases (child deaths). I sent her photos and the autopsy reports, and asked her simply to tell me what she thought. I was representing Jason Baldwin, along with my colleague Blake Hendrix, who is from Little Rock. On our first consultation after looking at the material, the pathologist said that she wanted to look at better quality photographs, and tissue slides, but that it appeared to her that there had been animal predation. One of the other lawyers, Dennis Riordan (who was then representing Damien Echols) and I agreed that it made sense to have another pathologist review the same evidence. That pathologist, from Michigan (the first one was from Minnesota) said that he saw what he believed to be clear evidence of animal predation. I did not discuss the first doctor’s findings with the second one. I did not speak with the second one until well after he was hired by Dennis Riordan, and it was clear that we might present that doctor as a witness. In fact, even after the second doctor told us about animal predation, we went to still other experts from other places in the U.S. and Canada. None of the persons I contacted was paid anything for the initial consultations.
We did what defense lawyers are trained to do–where such training is available. We reviewed literature on pathology, and conferred with known experts. When we got an opinion, we sought to have it verified. We tried to get access to people who had written well known treatises on pathology.
No one (yourself included, I believe) had gone to the Crime Lab to review all of the evidence notebooks about the case before the post conviction teams did that. When we did, we again consulted with Lab experts from around the country. We actually had two criminalists (experts on Lab evidence related to court matters) with us when we looked at all of the evidence at the Lab. One runs a large DNA Lab. The other was with a major police department’s crime lab for many years. One of our Lab experts took photos of all of the evidence. No one from the prior defense teams had done that. There hadn’t been the time, money, or knowledge of the importance of reviewing all of the pertinent evidence with a Lab expert or criminalist. Lawyers, for the most part, do not have the kind of scientific training to understand where the problems in Lab work may be. That is why we are told, during training sessions, to consult with people who know such matters.
During post conviction review, the legal teams did the same when looking at fiber evidence. We sought out a former trace evidence expert from the FBI Lab and just asked him to look at the fiber testing results initially reported. He noted that the initial reports were not supported by some of the documentation that was in the Lab’s notebooks. We then consulted with another fiber expert, who agreed that some of the initial fiber testing needed to be re-done–and that if properly analyzed, the fiber expert testimony initially provided at trial likely established little that could have reliably identified fibers from the crime scene as similar to fibers found on clothing from suspects’ houses (not specifically clothing that the suspects would have worn...)
Indeed, the problem with the way the pathology evidence was presented was, frankly, less Dr. Peretti’s opinions (which could have been better challenged by better prepared counsel), than the failure to present contrary expert opinions, referring to the known literature in the field . One of the trial lawyers had begun to find the literature, but didn’t know how to use it–this was his first homicide trial. Moreover, had the Medical Examiner’s files been inspected by defense counsel, they would have found evidence (brought out in post conviction hearings) that the State had tried to put together a transparency of a suspected murder weapon (a serrated knife) to display during trial–but that transparency was never used at trial. Why ? Well, as the Chief Odontologist at Miami/Dade, Dr. Souviron, pointed out during his testimony in 2008 and 2009, it could not be matched to the pattern injuries found on the bodies–the knife serrations were not the right size in a one on one matching attempt. If that point had been adequately covered, the State could not have (in a smart but unsupported move) used a grapefruit, and the suspect knife to illustrate wound patterns that accurate Lab work would have exposed as unrelated to one another.
There is more–but my point here is basically this: while some of the forensic science work done in this case by the Crime Lab can be taken to task, the point is that it is in part up to prosecutors and defense counsel to make sure that such evidence is challenged were necessary, and re-done correctly (if evidence is still available) if not done right the first time. The problem with the pathology here was in part the failure of the Crime Lab, and defense, to have Dr. Perretti’s findings reviewed. A number of his findings have been described as correct–but there is disagreement about some of the critical ones. It is regrettable that Dr. Perretti feels that the effort here was to take him down. The effort here, by us during the post conviction litigation, was to try to get it right. And what Dr. Perretti seems to disregard is that there is no incentive for other pathologists from various parts of the country to take him down. None of them was asking for an excuse to spend time in Jonesboro, Arkansas, where the late 2000 hearings were held.
The reason that there have been many notable screw ups in forensic science issues is that there are cases, like this one, in which there was an absence of double and triple checking. Part of the problem, clearly, was that not enough was done by defense counsel to have the Lab work reviewed prior to trial. This is part of what Jack Lassister, a well respected lawyer from Little Rock, testified when he explained that there were a number of things that the defense had no done in preparation for the trials of the West Memphis Three.
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