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Oral Arguments in Father Robinson's Appeal

On St. Patrick's Day the 6th Circuit Court of Appeals in Toledo, Ohio heard oral arguments in the appeal of Father Gerald Robinson's murder conviction. I wasn't going to miss it, and I didn't. But I left with a sinking feeling.

The small courtroom was standing-room-only by the time the judges entered; about thirty people were there to hear arguments on that one case, which in my experience is quite an unusually large crowd.

The three-judge panel, consisting of men who between them have 67 years of experience on the bench - Judges Peter M. Handwork, Mark L. Pietrykowski, and William J. Skow - allowed fifteen minutes per side for argument, as is customary, but which wasn't much time for this factually complex case. They asked only two questions, both directed to defense counsel.

The subject of the exculpatory DNA evidence did not come up - per se. But the prosecutor did make what I thought was a stunning admission in that regard.

During the defense attorney's argument, it was posited that another priest - Father Jerome Swiatecki - may have murdered Sister Margaret Ann Pahl. In rebuttal, the prosecutor pointed out that that the State was able to secure tissue from the late Father Swiatecki. They did a comparison to the DNA (the prosecutor dismisses it as "cellular material") found on the murder victim's clothing, and, stated the prosecutor today, "he was excluded."

It was hard to bite my tongue. If the State of Ohio excluded Father Swiatecki as the murderer because he did not match the DNA, then why wasn't Father Robinson, who also did not match the DNA, also excluded!?

Needless to say the prosecutor swiftly changed the subject. I don't think we'll ever get a straight answer to the question that has bothered me for two years now. Unfortunately the panel asked no questions about DNA. Later, the prosecutor remarked that the "cellular material" "probably" came from one of the men who bagged the victim's body for removal.

But that doesn't explain how the same male DNA profile came to be found underneath the fingernails of both of her hands as well.

And if it were true - if the DNA evidence came from an innocent third party - then how could it exclude Father Swiatecki? The prosecutor tied himself into a knot trying to explain away this DNA.

Judge Skow asked if the errors made by the trial lawyers for Father Robinson weren't "invited" errors. It was quite disheartening to hear this question; will the Court of Appeals actually rule that Father Robinson's trial wasn't fair, but he won't get a new one because his own lawyers were the ones who hopelessly messed up the case?

The only other question posed was again aimed at defense counsel. Judge Handwork asked: What does the defense make of the evidence that the letter-opener owned by Father Robinson fit neatly into a "defect" or hole in the victim's mandible bone? It was a good question reflecting preparation on the judge's part. Unfortunately, the panel may begin deliberations while laboring under the impression that this was objective and irrefutible evidence, rather than the opinion of an expert who "could not exclude" the letter opener as the object that made the hole. As defense counsel pointed out, "If 'it could not be excluded' could be a basis for guilt, God help us all."

I hope that the appellate court will not discount the only truly objective evidence in the case: the unknown male DNA profile recovered from the victim's underwear and fingernails.

"All the evidence is entirely consistent with Robinson being the killer," the prosecutor concluded.

Except, of course, for that pesky DNA.

Oral Argument

Next week I'm going to Toledo.

Father Robinson Update

A woman who accused Father Gerald Robinson of satanic sexual abuse filed suit against him and many others in 2005. That suit was dismissed on statute of limitations grounds, since she alleged "clerical ritual and sexual abuse" that supposedly took place decades ago. In an opinion issued a few days ago, the Court of Appeals for Ohio reversed that decision and sent the case back to the trial court to be fully litigated.

Then, in my opinion, the civil case will be revealed for what it really is: a hoax perpetrated by a mentally ill woman who is really fifteen years too late with this claim.

Ritual abuse claims were popular for a while in the 1980s and early 1990s. But the Federal Bureau of Investigation undertook a comprehensive investigation of the phenomenon in 1992 - and didn't find diddly squat to support it. Many legal scholars have expressly and resoundingly rejected these claims. Police officers who have investigated alleged ritual murders have rejected it, most notably Terry L. Kern, who wrote this thoughtful article about a satanic abuse case he investigated.

The Toledo Blade wrote a piece on the reinstatement of the civil suit written by David Yonke, author of Sin, Shame, And Secrets. Meanwhile Fred Rosen's take on the case comes out this week. It's When Satan Wore A Cross. Although I disagree with their conclusions, I cannot denigrate any true crime author - anyone who has spent hundreds of hours on research and writing. But I can't bring myself to agree with the guilty verdict.

Not when the DNA tests revealed that the man who was convicted of the murder was not the same man who managed to leave his DNA in the left-hand fingernail scrapings, right-hand fingernail scrapings, and on the underwear of Sister Pahl. In the Robinson case, an outrageously sensationalized prosecution coupled with milquetoast defense lawyers (and the despicable cover-ups in the Catholic church in general) led, in my opinion, to a wrongful conviction in this case.

The appeals court's decision in the civil case is purely procedural. The appellate judges were required by law to assume that everything Jane Doe pleaded in her complaint is true. They determined that the "discovery rule" trumped the statute of limitations - that the plaintiff must be excused for not suing twenty years ago because she did not know then whom to sue.

What she pleaded, per the opinion, is this:

Survivor Doe specifically alleges that the crimes began to occur while she was attending St. Adalbert from 1968 through 1972. She was kidnapped against her will and "held either against her will or by beguilement in the basement of St. Adalbert's." While being held there, she was used in elaborate, ritualistic ceremonies. The people perpetrating the crimes were dressed in nun habits and referred to themselves with the first name of a woman and then their own name. Robinson called himself "Mary Jerry" and Mazuchowski called himself "Carrie Jerry." Appellant has recalled suppressed memories of another yet unknown man who was referred to as Sue.

After appellant left St. Adalbert school, the abuse continued in a wooded area. Her mother, who also participated in the ceremonies, took her to them. [Jane Doe] was intimidated from disclosing the events of all the satanic ceremonies at the time they occurred because the perpetrators threatened to kill her if she told, caused her to believe that she was Satan's child, and demoralized her.

That is, if media accounts are accurate, only the tip of a satanic iceberg.

The reversal of the dismissal is in my opinion a good turn of events for Father Robinson and the Church. These allegations will now receive a full airing when Jane Doe is questioned under oath and her attorneys are required to support these allegations with evidence.

More importantly, unless the Catholic church settles the case - which seems unlikely, since they've said from day one that her claim is without merit - and also assuming that a decent set of lawyers is hired to defend Robinson this time (unlike the unprepared schmucks who phoned it in during his criminal case),  it all might come out in the wash.

The Da Vinci Code Murder, Chapter 45: Or, Father Robinson's Appeal

(A note: Generally I am not one to seek out and take up the cause of the wrongfully convicted. That is not where my primary interests or talents lie. Last year, I could not help but follow the coverage of a revived cold murder case in Toledo, since, if the allegations were true, it would have been a case of international, historic proportion. But the evidence and conviction left me quite unsettled; ergo, I write of it, at the risk of being labeled or stereotyped, though I am proud that I do not lack the courage it takes to advocate for a convicted murderer. Many people have corresponded with me to bring my attention to a particular cause. While I thank you for your letters and kind words, unfortunately, I do not have the time and resources to explore other cases.) 

At long last, Father Gerald Robinson - the Roman Catholic priest who was convicted of a 1980 murder last spring - a conviction that was wrongful in this observer's opinion - has filed his appeal brief with the Ohio Court of Appeals.

After a delay of more than a year, attributable to a sleepy turtle of a court reporter, his new appellate attorneys have filed a brief that runs in excess of a hundred pages, as the Toledo Blade is reporting this morning.

The Blade quotes the defense brief on the "Satanism" theory presented to the jury: it was "inherently unreliable, was of minimal probative value, lacked foundation, impermissibly stereotyped [Robinson] as the anti-Christ, invited the jury to speculate on the issue of guilt, and sensationalized the entire proceeding.”

Well, it was enough to get Father Robinson's case on national television, so the sensationalism charge seems to me to be irrefutible. Many media outlets gave generous coverage to the real life Da Vinci Code murder.

The press never convinced me of his guilt, and the DNA evidence did the opposite. But the coverage did convince me of one thing: if I ever had the misfortune to represent a defendant whose trial was being nationally televised with play-by-play commentary by Nancy Grace and others of her ilk, I'd go on a hunger strike until they removed the camera.

Having watched the trial on Court TV, having taken the time to run a search of the word "satanism" in the subscription legal databases (i.e. Loislaw and Westlaw), I am fairly certain that the Ohio Court of Appeals will not make Father Robinson's case the first in the country where the use of this sort of evidence will be endorsed by appellate judges.

For this sort of evidence - rather, the attempted use of this sort of evidence - is nothing new. There is no new thing under the sun.

In dozens of instances in recent decades, defense attorneys (trying to make their clients look crazy and thus less culpable) and prosecutors (trying to paint a defendant as evil incarnate) have attempted to inject "ritual" evidence into a murder case. Appellate courts have not looked kindly on this, no matter which side offers it.

Even in cases where there was absolute, cut and dry evidence of "witchcraft," "rituals," and/or "upside down crosses," etc., appeals courts across the country have specifically rejected it for exactly the reasons cited by Robinson's appellate lawyers now. I'd guess the brief ran to 100+ pages in part to prove that point.

And how does the prosecutor defend this? What is their argument as to why "bastardized rituals" and "upside down crosses" and "bastardized Last Rites" should have been allowed in Father Robinson's case, despite the general prohibition? What is the nail they hang their hat on to argue that this case is unique? Is there any authority or precedent for it? Is there a case I missed in my "satanism" searches?

Well, the prosecutor doesn't defend it. Instead, he keeps up a farcical pretense that it never happened.

From the Blade, quoting the prosecutor:

“From what I’m reading in their brief, they didn’t spend enough time learning what the evidence was in the case, because much of what they are charging in their brief did not take place during the trial,” he said.
***

Mr. Mandros said his office would read the trial transcript thoroughly to disprove the defense’s contention that Satanism was a key component of evidence.

“It appears that there is a concerted effort to make the Court of Appeals think something happened that didn’t,” he said, adding that the response to the appeal would “take more time than they did.”

Those remarks are so disingenuous, they are dishonest. This prosecutor apparently has the gall to stand before the three appellate judges and argue that because he was careful not to let the magical four syllables contained in that single word "Satanism" cross his lips that he can somehow avoid censure or consequence for his reliance at trial on the evidence of alleged ritual aspects of the murder and the theory that the murder of Sister Margaret Ann Pahl involved a "bastardized version of the Last Rites" - his words exactly.

I have half a mind to attend the oral argument in Toledo so I can see this prosecutor make this outrageous argument with my own two eyes, and to see for myself what the appellate judges say.

It would be laughable on its face - if only a man hadn't been condemned to die in prison in no small part because of it.

Hang in there, Father Robinson.

**

PS Thanks to my anonymous and faithful correspondent for keeping me updated.

Father Schmidt's Insanity Plea

In the 20th century, whenever an awful murder case involved a member of the Roman Catholic clergy, our national media indulged in paroxysms of a religious and delusional nature.

Okay, maybe it's unfair to draw sweeping conclusions with only two examples.

When Sister Pahl was murdered in Toledo in 1980, and Father Robinson arrested in 2004, the media accounts almost universally said that her body was surrounded by burning candles, implying some bizarre ritual / Satanic slaying, some sort of sacrifice to evil. Well, that turned out to be wrong.

But I won't write another rant about the wrongful conviction of Father Gerald Robinson today.... rather, I want to tell you about Father Schmidt.

Hans Schmidt was too handsome to be a priest. But he was ordained anyway. Perhaps not surprisingly, he broke his vows and got a young woman pregnant. (Photos from the Anaconda Standard, via NewspaperArchive.com.)

As sometimes happens to young women who get pregnant, in or out of wedlock, her paramour was displeased, and she ended up in pieces.

But I don't have to write a summary of the story. One of the greatest legal writers of the 20th century, Justice Benjamin Cardozo, whose opinions were so cleverly crafted and so tightly written that they appear in many law school textbooks even today, wrote the appellate opinion confirming Father Schmidt's conviction. In that opinion, he crisply summarized the case:

In September, 1913, the dismembered body of Anna Aumuller was found in the Hudson river. Suspicion pointed to the defendant. He was arrested, and confessed that he had killed the woman by cutting her throat with a knife.

He repeated this confession again and again. He attempted, however, to escape the penalty for murder by the plea that he was insane. He told the physicians who examined him that he had heard the voice of God calling upon him to kill the woman as a sacrifice and atonement. He confessed to a life of unspeakable excesses and hideous crimes, broken, he said, by spells of religious ecstacy and exaltation.

In one of these moments, believing himself, he tells us, in the visible presence of God, he committed this fearful crime. Two physicians of experience, accepting as true his statement that he was overpowered by this delusion, expressed the opinion that he was insane.

Other physicians of experience held the view that his delusion was feigned, and his insanity a sham.

But before it was pointed out that Father Schmidt was a Satanic fraud, the newspapers of America fell in love with the story. Some of the banner headlines even went above the masthead --

True crime author Mark Gado recently wrote a book that explores the murder of Anna Aumuller in detail. It's Killer Priest: The Crimes, Trial, and Execution of Father Hans Schmidt.

Fortunately, the jury and the many appellate judges who reviewed the case were satisfied that neither God nor the Devil made him do it. Father Schmidt was executed as the cruel and perfectly sane girlfriend-killer that he was. Which isn't to say he didn't receive a warm reception in the lowest pits of you-know-where. And I can't help but remark, I can't help but point out how the Satanic/ritual malarkey failed the smell test nearly a century ago, while a much more "modern" jury of today accepted this hokum in Father Robinson's case. 

Father Robinson in Time

Time magazine featured a photo of the Robinson jury in its most recent issue. The caption: "The jury watches convicted murderer Father Gerald Robinson leave the courtroom where he was tried in the satanic-style murder of a 71-year-old nun." The story does not make further mention of the case. http://www.time.com/time/nation/article/0,8599,1608660,00.html

"Satanic-style"? Curious way to put it. Then again the Associated Press Style Manual probably doesn't have an entry on how to refer to Satan worshippers.

The Time mention has renewed interest in Father Robinson's case, judging from a sharp increase in Google traffic that lead people here. Curious about the story behind the photo you saw in Time?

Okay, I'll say it again.

In the ideal murder investigation, the police recover two DNA profiles from the victim's body, clothing, and/or scene of the crime. One DNA profile is female -- the victim -- and one is male -- the killer. In the ideal case, there is also redundancy in the results: the same male deposits DNA in more than one location. The redundancy gives reassurance that the results are not a fluke.

In this case, there were two DNA profiles recovered from the victim's body and clothing. One DNA profile belonged to Sister Pahl, the victim. The other DNA profile is indeed male. This male's DNA was found both on the victim's underwear and in her fingernail clippings, taken at autopsy.

Scrapings from victim's fingernails happen to be the evidence most likely to yield a killer's DNA in a strangulation case, as this was. The fact that a redundant male result was found on the underwear of this nun makes a theory of casual contamination highly unlikely.

This type of DNA evidence is considered quite powerful and persuasive -- enough to release incarcerated men deemed wrongfully convicted.

And yet the Robinson prosecution bamboozled the jury and the media into disregarding this DNA evidence, because it did not match Father Robinson. The Court of Appeals of Ohio is expected to issue a ruling soon....

For Father Robinson's Persistent Cadre

Last week, I sat down for an interview with NBC 24 in Toledo's anchorman, Jim Blue, Emmy-award winning journalist, voted by his peers the Best Anchorman in Ohio last year. Mr. Blue and his news team are preparing a story for broadcast. I was asked questions about the possibility that Coral Eugene Watts, the Detroit serial killer named as a suspect in the case in 1982, may have committed this murder. I was also asked questions about the mystery male DNA found on the victim.

With some new information I've gathered, I've updated this post about the similarities between Watts' crimes and the Pahl murder, as well as some dissimilarities.

Meanwhile, I found this to be compelling reasoning as well. Are we entering into a new wave of Satanic ritual hysteria? Alert the day care centers, and the oh-so-skeptical FBI.

A story of other unsolved murders in Toledo in 1980 also caught my eye. The Toledo Blade recently ran a piece about the murder of a couple in Flint, Michigan; their bodies were dumped in Toledo. While Watts was not named in the article, the sketch of the suspect looked somewhat familar to me.

Left: the suspect in the murders of Fred and Louise Tucker. Right: photo of Coral Watts. Seems to me that Watts' DNA may well clear up a number of mysteries....

Coral Watts: Back in the Dock

"Perhaps we could find some DNA under fingernails in some of the victims."

-- A Texas investigator on Coral Watts

The jury that convicted Father Gerald Robinson for the murder of Sister Margaret Pahl in Toledo in 1980 was never told about the other suspect named by police during the murder investigation. They didn't know that the other suspect was a serial killer. And the prosecution never tested that other suspect's DNA against the unknown male DNA found under the fingernails of Sister Pahl. They should.

Coral Eugene Watts began attacking women in 1969. He soon escalated to murder. He lived in suburban Detroit, but usually drove 1-2 hours to find his victims. By the time he was caught in 1982, his unimpeded rampage ended dozens of lives. Today, he's imprisoned for life without parole in a state prison in Ionia, Michigan.

The serial killer is going on trial again for a murder in Kalamazoo later this year. The Michigan Supreme Court just issued its latest decision about Coral Watts. In a terse, one-paragraph order, the court ended years of appellate battles over evidentiary problems in the case and cleared the path for Watts to stand trial for the murder of Gloria Steele in 1974. At the time, both were students at Western Michigan University in Kalamazoo, Mich.

Photo: Detroit News

Watts is suspected of killing as many as eighty women, maybe more. If the Michigan authorities can get a full confession out of him -- and God knows a lot of people are praying that the whole purpose of this latest trial is to compel Lady Justice to take him by the hand and guide him to fully account for everything he's ever done -- is it possible that they may find more bodies? Is it possible that another 65 murders, maybe more, could be attributed to him?

And given such a high number, what are the odds that there is, right now, an innocent man in prison for something Coral Watts did? And is one of those men Father Gerald Robinson?

Watts is about to go on trial as soon as a new judge can be assigned, according to the Kalamazoo Gazette, for the murder of Gloria Steele. She was strangled to unconsciousness. She was then stabbed 30 to 35 times in the chest, breasts, and abdomen with an unusual weapon. She was not raped. This may sound familiar to those who have followed the Robinson case.

What really set Watts apart, what made his murders rather unusual for a serial killer, is the fact that the crimes had every appearance of sexual-rage murder, but Watts did not sexually assault his victims. Investigators often said the crimes appeared "motiveless." And that's what has made Sister Pahl's murder so unusual.

In fact, Watts was named as a suspect by police investigating the murder of Sister Pahl. This, according to United Press International. One article ran in the Elyria Chronicle-Telegram in 1982:

 

I have it now on two reliable authorities that Watts' DNA was not compared to the unknown male DNA found under the victim's fingernails. I am also advised by one reliable authority that witnesses at Father Robinson's murder trial testified that they saw a black male in the vicinity of the murder site that morning.

Watts was a prolific killer. In the last year he was loose, he killed a dozen women in Texas, maybe more -- he moved from Detroit to Texas in 1981. One night after he was caught, while he was working out his plea bargain with Texas authorities, one of the homicide detectives asked him, Coral, how many women have you killed? Coral Watts looked around the room and said, more than there are fingers and toes in this room. There were four detectives, plus Watts, in the room. More than a hundred?

Coral Watts was a mechanic. When murdering women, he used knives, but sometimes used unusual weapons -- screwdrivers, carving tools, an icepick, a scalpel. He is thought to have killed a dozen women in 1979-1980 while living in Inkster and working in Woodhaven. His wife left him in January 1980, and from January to May 1980 the killing was heavy as he went through the divorce. These are known and suspected Watts murders in that time frame:

• March 11, 1980: Hazel Connof, Detroit.

• March 31, 1980: Denise Dunmore, Detroit.

• Sister Pahl murdered

• April 20, 1980: Shirley Small, Ann Arbor.

• May 31, 1980: Linda Monteiro, Detroit.

Watts attacked all kinds of women -- black, white, Hispanic, he didn't care. He attacked in the middle of the night, but often attacked women in the early morning hours as well. In Ann Arbor, police noticed a "pattern in the stab wounds" on two murder victims there and dubbed the killer the "Sunday Morning Slasher." He often would prowl for women before going to his pentecostal church. Sister Pahl was murdered on a Saturday morning between 7 a.m. and 8:30 a.m. according to early press accounts. According to a transcript published in Corey Mitchell's book, Watts was asked --

Detective: Was there any particular day of the week or anything that most of these things have happened on?

CW: The weekend.

To be fair, there are two factors that point away from Watts as the man who murdered Sister Pahl. One, she was much older than Watts' other victims, who tended to be in their 20s, 30s, and 40s. Two, the smear of blood on her forehead -- some think it was a "last rites ritual" performed by the killer -- is not something Watts was known to have done.

Then again, according to Watts biographer Corey Mitchell, Watts killed women because he thought they were evil. It's a word he used very often. He was deeply religious and a regular churchgoer all his life. He was concerned about being haunted by the spirits of his victims, so he took strange steps to keep the "spirits" at bay, i.e. in one case, after murdering a woman in her apartment, Watts disrobed and bathed her in what the author dubbed an "evil baptism" to keep her spirit at peace and at bay. In other cases, he took the women's shoes or purses and then burned them, for the same reason, he said, to keep their spirits away. The Roman Catholic ritual of last rites is not a secret; maybe you remember the last rites scene from The Exorcist, which came out in 1973.

Coral Watts was also suspected of murders and assaults in Windsor and other cases in Toledo and suburban Detroit and beyond. Any cold case within an hour or two of Detroit or Houston, his residences, could be his work -- and maybe some "solved" cases too, given the sheer numbers. In fact, at least one man was wrongfully convicted and imprisoned for life for something Watts did. Howard Ware Mosley was released from prison in 1982 when Watts confessed to the same crime.

Perhaps twenty-four years of incarceration have had their due impact on Coral Watts and any semblance of conscience he may have. Lady Justice, do your magic. Make believers of us again.

For more:

See this post for details -- The Disturbing Reason Why You've Never Heard of Coral Watts

Court of Appeals decision on Coral Watts (reversed)

Website of Corey Mitchell, author of Evil Eyes, Watts biography

More about DNA and Father Robinson's Case, or Light Reading for the Free Father Robinson Club

I am alas working without the benefit of a transcript, so many of these points are only questions right now. But the Ohio Court of Appeals may see the light and let Father Gerald Robinson out on bond. His attorney has filed a motion for bond pending appeal. Cross your fingers.

So here's the DNA rant I promised you.

An unknown male left his DNA in three places at the scene of the murder of Sister Margaret Pahl in Toledo in 1980. First, he left his DNA under her fingernails. Second, he left his DNA on her underwear. Third, he left his DNA on a cloth the killer used to cover her body during the murder. This DNA did not match the man convicted and sent to prison for the crime.

The reasons Father Gerald Robinson's jury gave for ignoring the DNA evidence in this case:

1. The amount of DNA was "small."

2. The DNA was "degraded over time."

3. The crime scene had been "contaminated."

4. Police did not use or preserve DNA in 1980 when the murder occurred.

Each of these is a poor argument, if not demonstrably false.

1. The amount of DNA was small.

Well, you see, that's the miracle of DNA evidence today. For years, scientists required a significant amount of evidence to test for DNA -- as much as a dime in size. "Today's techniques can multiply the DNA, producing millions of copies from tiny amounts of evidence," says the University of Utah in "Can DNA Demand a Verdict?"

Today, DNA results can come from "extremely small samples" (National Institute of Justice). The exact amount of the DNA is only relevant if it has an effect on the ability to get results. In the Pahl-Robinson case, there was enough DNA to exclude Father Robinson as the unknown male DNA contributor. Anyone who focuses on the amount of the DNA is deliberately ignoring the import of the results.

2. The DNA was "degraded over time."

Forensically valuable DNA can be found on evidence that is decades old, as long as the evidence was stored in the normal fashion. The storage method for blood evidence has been the same for decades: a plain paper bag, at room temperature. In fact, the National Institute of Justice still recommends today that DNA evidence be stored in this same old way. See "What Every Law Enforcement Officer Should Know About DNA Evidence," http://www.ncjrs.gov/pdffiles1/nij/bc000614.pdf.

Even assuming there was some indication of partial degradation in the DNA, the prosecution was still able to exclude Robinson as the unknown male who left DNA on this victim's body and clothing. The argument that the DNA was "degraded" is belied by the fact that there was an appreciable result that excluded the defendant.

If there had been full degradation of the DNA samples in the Pahl murder case, then there would have been no result at all. DNA that is completely degraded, say by being rotted away due to being stored in plastic or damaged with water or insects, "will simply go away, as opposed to being magically converted into someone else's type." "DNA Untwisted," by Norah Rudin, Ph.D., DNA Forensic Consulting Inc., in the San Francisco Daily Journal, http://www.forensicdna.com/DNA_Untwisted.htm

3. The crime scene had been "contaminated."

"Note, however, that contamination would add an additional DNA sample; it would not erase the original unknown male found." O’Donnell v. State of New York.

One of the fundamental principles of DNA evidence is that if the evidence is contaminated, it will only add DNA. It will not replace or delete what is already there. And in a sense, every single piece of DNA evidence is "contaminated" -- with the victim's DNA.

And from the National Institute of Justice:

"As with fingerprints, the effective use of DNA may require the collection and analysis of elimination samples. It is often necessary to use elimination samples to determine whether the evidence comes from the suspect or from someone else."

Again, from the University of Utah:

"To detect possible contamination of DNA samples during collection or handling, evidence DNA profiles are often compared with those from detectives at the crime scene...."

If the prosecution in the Robinson case truly believed that someone contaminated the crime scene, then have they tested their theory? Did they ask for DNA samples from the EMTs, the police, whoever came in contact with the room? Were the "elimination samples" run? Other prosecutors in similar circumstances have done so. Why not here?

Update, 11/28/06: I have it now on two reliable authorities that elimination samples WERE run. None of the elimination samples matched the DNA found on the victim. (I'm unable to relay exactly who was eliminated this way and/or if every male known to have been at the crime scene was eliminated. At least some were, apparently. Was the prosecution reduced to arguing that the DNA came from a phantom? And if that argument was successful in every case, then DNA would never acquit anyone, would it? There are always phantoms around to blame.)

4. "Police did not use or preserve DNA in 1980 when the murder occurred."

False. Clearly they did preserve the "DNA," or it wouldn't have been available for testing two years ago!

Forensic evidence, specifically from under the fingernails, has been used in murder investigations for several decades and was certainly around in 1980. The fingernails of this murder victim were, obviously, clipped into a container and preserved as evidence all these many years.

Also consider the case of Toledo serial killers Anthony and Nathaniel Cook. They were tied to a murder committed in 1981 when DNA tests in 1998 confirmed their involvement. The same prosecutor's office that nailed the Cook brothers with DNA now argues in Father Robinson's case that the exact same kind of evidence can't be trusted.In both cases, the evidence was processed by the same Toledo legal system and stored, probably in the same building, for the better part of two decades, and probably was tested by the same crime lab. So how can they argue it is reliable against the Cook brothers but unreliable in the Robinson case? Come on.

It's usually the defendant who argues that DNA collected 25 years ago is "contaminated." I wonder exactly how many times these prosecutors in Toledo have vigorously argued in favor of "old" DNA evidence?

And who, exactly, has the burden of proof here? Last time I checked, it still rested with the state to prove the case beyond a doubt. This is doubt. This is reasonable.

Here's hoping that instead of granting bond to Father Robinson to let him out of prison to await his retrial, maybe, hey, you never know, maybe the Court of Appeals will see through this and grant some more finite form of relief.

The Problem of the Testimony of Dr. Henry Lee

At some point, can an experienced expert witness be so famous, so popular, and so suave and entertaining on the witness stand that it actually impedes a defendant's right to a fair trial?

A moment of humor can be a welcome respite from a tense trial on a violent murder. But it is recognized that injecting levity into a trial may create a scintillating and relaxed atmcosphere that may adversely influence the jury's perception of the significance of the evidence.

Dr. Henry Lee is a television personality. Dr. Lee is the highest paid forensic scientist on the planet. He is very widely known as a “star in the investigation field” who has played a role in many of America’s most high-profile cases and who has his very own cable television program, Trace Evidence: From the Case Files of Dr. Henry Lee. He is a regular feature on all cable TV news programs, especially Larry King Live and all the other true crime programming that dominates cable news. He is a also frequent guest at various murder trials across the country, and he was invited by the prosecution to "testify" in The State of Ohio v. Gerald Robinson.

Dr. Lee will testify on any matter, for anyone, his most famous testimony coming in the O.J. Simpson case. “Fingerprint examiners think I'm a fingerprint examiner. Blood spatter experts think I'm a blood spatter expert. DNA people think I'm a DNA expert,” he says.

Defense counsel can hardly object to sensationalized entertainment as evidence without risking disapproval by the court or jurors, especially where the witness is a popular celebrity called to the stand not to offer real evidence but to perform for the jurors. That's not to say that Dr. Lee is bought, or he is wrong -- it simply makes him un-cross-examinable, to coin a phrase. How do you cross-examine someone like Dr. Henry Lee, the most famous forensic expert in the country?

From Court TV’s coverage of Father Robinson’s case:

Because of his reputation, Lee was the most anticipated witness in the trial.

***

Jurors watched intently as Lee pulled an oversize magnifying glass from his briefcase and inspected police photos. "You never know when you're going to be called to a crime scene and you can't carry a microscope with you," he joked to the jurors, who chuckled.

A lawyer for Robinson spent less than five minutes cross-examining Lee, including offering him a hearty welcome to northwestern Ohio.

"It's a lovely area. I like Toledo very much," Lee replied, smiling at jurors who beamed back at him.

Dr. Lee likes to say that “I approach them [the jurors] in a logical way to present scientific facts—only the facts.”

But the reality is that Henry Lee is not someone you just "call" to the stand. Dr. Lee makes jurors beam at him – smile radiantly at him. Part of the charm comes from years on the witness stand in front of hundreds, maybe thousands of jurors.

Dr. Lee drinks water that's been colored red (or ketchup) and spits it out of his mouth in front of jurors to demonstrate what "blood spatter" means, as though anyone over five needs such a graphic illustration to get it. Dr. Lee’s “testimony” kills with kindness any defense effort to cross-examine this popular witness who may be great on TV but is of questionable fairness in a court of law engaged in the trial of a man for murder.

There is no legitimate reason for Dr. Lee to bring a prop in his pocket, the magnifying glass. He has already examined the photos and knows what they contain in order to form any opinions. But this man, often referred to as “the modern-day Sherlock Holmes,” pulls out a Sherlock Holmes magnifying glass. Examining photos in front of the jury is an opportunity to crack a corny joke, and it entertains the jury. And it makes the cross-examination a minefield for defense counsel.

Less than five minutes of cross-examination of this expert who made such an impression on the jury was inadequate, and Father Robinson's lawyers might have otherwise explored at length the critical fact that Dr. Lee actually disagreed with and undermined the prosecution's only other bloodstain expert - the woman who links the letter-opener owned by Father Robinson to the bloodstains left at the crime scene.

From Court TV:

"I cannot come here to tell you this pattern is produced exactly like this," Lee said holding the medallion [on the letter-opener] out to jurors with one hand and gesturing toward a projection screen showing an enlargement of the stain. "All I can say is 'similar to.'"

Strange, for, according to the prosecutor, the bloodstain "matched" the letter-opener. Dr. Lee, a prosecution witness, would only say it was "similar to."

Once again, the State of Ohio is proven to have selected carefully from among the various theories and witnesses that it presented itself in the murder trial of Father Robinson. If Dr. Lee didn't support the State of Ohio's bloodstain evidence, why was he called to testify?

Yeah, I bet by the time the jurors stopped laughing and beaming, they forgot, too.