Bloodsworth Page 22
Stephen Bright learned that the Southern Prisoner’s Defense Committee in Atlanta was relocating. It was low on funds. Its principal lawyers were leaving. It was almost a bust. He was asked if he’d be interested in taking it over. Bright was passionate, totally committed, and wanted to go. Morin was willing to go down for a while, but didn’t want to be away from his fiancée, Marty, for too long. If he went, it could only be on a temporary basis. And someone needed to continue running Law Students in Court. The three finally agreed that Gerry Fisher would remain behind and continue to run the program. Morin would head south with Stephen Bright to help get the Southern Prisoner’s Defense Committee—which they renamed the Southern Center for Human Rights—revitalized. “We went down there,” Bob Morin later said, “and realized that there was this horrendous black hole—this absence of justice. I knew that at some time down the road, at some later point, historians would look back and ask, ‘Where were the lawyers?’ We just had to go . . .”
Morin’s time in Georgia was a defensive blitzkrieg trying to hold back the dam of pending executions in nine southern states. They were overwhelmed with cases. The center had little money. They sent their petitions for stay of execution by Greyhound bus, because they couldn’t afford overnight mail. They went to the small towns where the crimes had been committed, and when people learned who they were they were denied places to stay. Prosecutors and judges treated them with contempt. They worked around the clock. And they learned the art of postconviction advocacy in capital cases. They found ways to delay the executions, they won new trials for their clients, and they brought some dignity back to a process that had lost sight of equal justice.
Two years later, Morin got a call from Gary Christopher in Maryland. The dam was now giving way in his state, and Christopher needed the help of an experienced death penalty lawyer. Morin was overdue in coming home to Marty. He and Stephen Bright had begun to turn the Southern Center around. It was attracting idealistic law students from around the country, and Morin felt he finally could afford to move back. He accepted the job. Christopher said later that Morin was a godsend. “He brought to the Maryland public defender a whole new level of experience and expertise in defending death penalty cases,” Christopher said. “He was a brilliant strategist. Bob Morin was just a great lawyer.”
Morin helped Christopher build his unit into a well-organized and efficient state center for death penalty defense. He handled capital cases at all levels and taught and supervised the lawyers. After a while, though, Morin realized that there weren’t enough death cases in Maryland alone to justify his remaining there. He went back to work with Gerry Fisher. They joined with David Kagan-Kans and opened a small law firm dedicated to handling death cases from around the country. Morin was immersed in this work when he got the call from Christopher, asking him as a favor to visit with this kid—this Kirk Bloodsworth.
THE FIRST THING Bob Morin did, after he agreed to represent Kirk Bloodsworth, was to draft and file a motion with the Baltimore County Circuit Court requesting an order that the state be required to preserve all of the trial evidence, including all of the physical evidence concerning the case. He knew that following the denial of a final appeal, the state would periodically dispose of the physical evidence in a case. Later, Morin wasn’t quite sure what he’d intended to accomplish with that motion. He’d written it out of habit, on instinct. He’d just wanted some breathing room.
The motion was filed in March of 1989 and was granted by the court. Immediately thereafter, Morin wrote the prosecutors a letter, enclosing the court order, and demanding that they preserve everything. On a whim he also requested that any items containing the bodily fluids of the assailant be subjected to DNA fingerprinting, a very new and still experimental technique about which Morin and other trial lawyers were just learning.
Ann Brobst wrote him back. Her letter acknowledged that the state would preserve the evidence that remained. She advised him, however, that no fluids of the assailant existed: “The vaginal and anal washings and swabs referred to by you were inadvertently destroyed prior to submission for analysis,” she wrote. “Additionally, time and nature may have contributed to further deterioration of certain of the items you have requested. . . .” She went on: “This office would agree immediately to have the assailant’s body fluids examined for the DNA testing you have suggested. It is my understanding, however, that said fluids do not exist.”
Morin read the letter and put it in a file. That same month, he’d contacted one of the leading DNA labs in the country, Cellmark Diagnostics, in Germantown, Maryland. Apart from there not being any fluid from the murderer to test, Cellmark would not even attempt to analyze DNA from smears on glass slides, he learned. The lab required identifiable semen or other biological material containing DNA in a sufficient amount to test before it would even undertake an analysis.
Morin decided he’d start from scratch. He began to study the case since its inception. He pored over the police reports, the tips, the transcripts, the previous investigations conducted by the public defenders. He followed up by pursuing leads that had been dropped. He sought out updated information on John Michael Anderson, Richard Gray, David Rehill, and W. F. Johnson. He hired an investigator to look into murders occurring in the mid-Atlantic area after Bloodsworth’s arrest, murders where a similar crime scene pattern emerged. He researched and drafted a petition for postconviction relief and filed it in the state court, arguing that the evidence was too circumstantial to support a conviction and that Kirk’s rights had been violated because the state had destroyed the critical evidence that could have exonerated him. He began preparing for a habeas corpus collateral attack in the federal court. But he was stymied. After nearly three years of working for Kirk, nothing he’d found had succeeded or was likely to succeed. The case ate away at him. Here he had a young man he knew was innocent. He had helped so many guilty people. Why couldn’t he help Kirk?
It was Kirk who rekindled Morin’s interest in a DNA test, who pushed Morin into pursuing the analysis. Morin had been learning about the science, about the developing technology. He was preparing to deal with it in other pending trials. But with no fluid samples from the assailant to test, it had no utility in Bloodsworth’s case.
But after reading Joseph Wambaugh’s The Blooding, Kirk hadn’t stopped pestering Morin about a DNA comparison. “What about getting the stuff tested?” he asked Bob for the umpteenth time one day at the prison. “Where are we with that? Let’s just send whatever’s there out and test it. What’s there to lose?”
“To start with, the FBI found that there was no semen on the swabs,” Morin reiterated. “There was no semen on the clothes. There is no fluid to test.” Morin still understood that DNA testing methods at that time were unable to analyze preserved specimens off of slides and that any test risked destruction of the DNA samples on them. Morin explained to Kirk that even if a lab could be found that was willing to test the physical evidence, and even if trace amounts of semen existed that had been overlooked by the FBI, there was this other problem: the risk of destroying the samples in an unsuccessful, premature test. In fact, there might be a lot to lose.
“I want the stuff tested,” Kirk insisted. “Test it. Please, for God’s sakes, Bob, a DNA test. I’m dying in here . . .”
Morin reluctantly agreed to try. He began calling around to other laboratories. Dr. Edward Blake’s small lab in California, Forensic Science Associates, was clearly the best bet. It did polymerase chain reaction, or PCR, testing, the most advanced type of DNA fingerprinting then known, one that could, under some circumstances, amplify a miniscule specimen of genetic material into enough of a sample to analyze. Blake’s lab was willing, though with reservations, to test the swabs and smears. Morin was warned again that glass slide specimens stained with a preservative might not lend themselves to DNA extraction and that the specimens could be destroyed in the testing process. Morin explained that he understood. He and his client wanted the testing done anyway.
There, on a shelf, Morin found a cardboard box containing Dawn Hamilton’s panties, shorts, and the stick. Morin also interviewed the medical examiner and learned that the medical examiner’s office had kept frozen the glass smears taken at autopsy. Morin wanted all of this tested.
Brobst eventually agreed to the following terms, set forth in a letter: Morin could have these items sent and tested at the California lab if he paid the cost and if all oral and written reports from the lab were made known to the state. She wrote: “If a qualified laboratory determines with scientific certainty that there is sperm present on any of the items and the sperm is not that of the defendant, and the state has an independent opportunity to have an expert review the protocol and methodology used by the laboratory and agrees to the accuracy of the results, the state will agree to his release.”
In August 1992 the various items of crime scene evidence along with a vial of Kirk’s blood were all sent to California to undergo this new form of scientific identification and comparison, to be subject to this developing forensic technology capable, under some circumstances, of excluding someone as the perpetrator of a crime.
Morin also sent the lab $2,500 from his law firm as an advance toward the total cost. But he had little in the way of expectations.
TWENTY-SEVEN
THE CONCEPT OF forensic identification was probably first recognized in ancient times. In Babylon fingerprints were used on clay tablets for commercial purposes. The early Chinese were known to use thumbprints on clay seals. The first European to identify the value of fingerprints for forensic use was Sir William Herschel, an English magistrate in Jungipoor, India, in 1856, who used them on contracts with local citizens. Local government pensioners used their fingerprints to sign for their monthly payments, and landowners put their official stamp on transactions in this manner.
In 1878 a Scottish physician and missionary in Japan, Dr. Henry Fauld, discovered fingerprints on ancient pottery. Dr. Fauld was inspired to begin a study of “skin-furrows” and is credited as being the first European to suggest using fingerprints to assist crime investigators with identifications. Fauld began trying to classify fingerprints and contacted the noted British biologist, Sir Charles Darwin about his findings. Darwin passed along Fauld’s research to his cousin, Sir Francis Galton, considered to be one of the great scientists of his century.
Galton was already a famous anthropologist, statistician, and explorer in the 1880s when he began studying fingerprint patterns. In 1892 he published a book that established for the first time that no two human being’s fingerprints are exactly alike. Galton’s goal at the time was the study of intelligence, heredity, and race, but he learned that none of these traits could be determined from a person’s fingerprints. His research did prove that fingerprints could be used as a means of identification, and he developed a classification system based on pattern types that is still used today. Galton determined that the odds of one person’s fingerprints matching those of another were one in sixty-four billion.
In the United States the use of fingerprints to make criminal identifications surged in the early 1900s, and by 1946 the FBI had over one hundred million fingerprints on file. This number had grown to two hundred million by 1971. No other method of personal identification matched the impact of fingerprints until scientific advances in the 1980s opened the door to genetic profiling through DNA analysis.
The modern story of DNA began in 1953 when an American scientist, James Watson, and an English scientist, Francis Crick, working together at Cambridge University, discovered the “double helix” structure of the chain of repeating molecules known as deoxyribonucleic acid, or DNA. Advances in understanding genetics and the workings of DNA would accelerate through the rest of the century. DNA is the molecular blueprint of heredity found in most living organisms. Almost every cell in the human body contains DNA. DNA molecules are found in hair, blood, saliva, skin, and even tears. The molecules are shaped like two strands twisted around each other to form a spiraling ladder, a double helix. The strands are made up of only four chemical “bases” that repeat millions of times in certain sequences. These bases pair up to form bridges between each strand, making up the rungs of the ladder. Just like the binary code used in computer language consists of zeros and ones in various positions and sequences to represent data, the four chemical bases pair up in specific sequences along the DNA ladder. These sequences constitute the genetic code.
Almost 100 percent (99.9 percent) of the genetic code is identical in all humans. The code carries the instructions that make us look and function alike. We all have two eyes, two ears, arms, and legs. We walk, talk, and breathe using the same physiological mechanisms. It’s the remaining one-tenth of 1 percent, or about three million of the three billion rungs on each person’s DNA ladder that varies from one person to the next. Along the DNA ladder, sequences of base pairs that make up genes are interrupted by fragments of noncoding DNA that represent breaks in the genetic code. These fragments, called repetitive sequences, are different for each person in their length and number, creating a pattern unique to that individual.
An English geneticist working at Leicester University in England first developed the concept of a DNA fingerprint. Alec Jeffreys began studying molecular genetics in 1975 at the University of Amsterdam as a postdoctoral student. In 1977 he moved to Leicester Univeristy and changed the direction of his work. He started exploring the variations in genes and the evolution of gene families. In the early 1980s geneticists had begun working with a technique dubbed RFLP, for restriction fragment length polymorphism, which enabled them to analyze the regions of DNA that differed from one person to the next. The technique used a chemical probe to find the DNA sequences to be analyzed. In 1984 Alec Jeffreys took this a step further and discovered a new method of locating these regions along the structure of DNA, enabling him to isolate many specific fragments of DNA at one time. Using X-ray film, Jeffreys developed images showing the length of these fragments in repetitive patterns that looked like the bar codes used on retail packages. He realized that these patterns, which represent the patterns of the base pairs along the DNA ladder, were distinct for each individual.
Alec Jeffrey’s findings were published in the science journal Nature in 1985, the year of Kirk’s first trial. Two years after his discovery, Jeffrey’s new science was used to help solve the mystery of the two murdered teens in Narborough, England, recorded in Wambaugh’s The Blooding.
Meanwhile in California, in 1983, a scientist named Kary Mullis was working on another problem associated with DNA analysis. His discovery, combined with Alec Jeffreys’s work, produced the technology that would help save Kirk Bloodsworth.
Mullis was working on the problem of trying to analyze DNA when only a very small sample was available. He came up with the procedure, utilizing the enzyme that copies DNA inside a cell during DNA replication, for creating chain reaction reproductions inside a test tube, that became known as PCR. His technique enabled scientists to take a tiny section of DNA and replicate it very quickly so that there was a sufficient amount to test. Whereas the RFLP methodology required a biological specimen consisting of approximately ten thousand intact sperm cells to conduct a test, using the PCR technology an analysis could be conducted on a specimen consisting of as few as fifty to one hun
dred sperm. Mullis published his work in 1986.
In forensic identification, two samples of DNA, taken from different sources, can be compared by looking for matches in the repetitive patterns. The statistical certainty of an identification grows as DNA analysis is conducted on multiple genetic locations. The more locations that match, the more likely it becomes that the two DNA samples are from the same person. On the other hand, if two DNA samples are compared and there is no match at any single correlating genetic location, then the samples cannot have come from the same person. Therefore, it is easier to rule someone out than to identify positively a match.
Initially, PCR-based tests were not as definitive as RFLP because they did not detect as many matches at as many locations on the DNA ladder. But they were quicker and cost the same. By the early 1990s scientific advances improved the statistical significance of PCR-based tests to the point where they were as practical as RFLP. In 1993 Mullis won the Nobel Prize in chemistry for his discovery of the PCR technique.
In 1989, when Bob Morin first contacted Cellmark Diagnostics to inquire about a possible DNA analysis for Kirk, Cellmark was using only the RFLP technique, which required a substantial sample of fluid or other genetic material to conduct a test. In 1992, when Morin revisited the question of whether a DNA test could be performed on any trace of foreign blood or semen that might have been overlooked by the FBI, he turned to the scientist in the United States with the most experience in performing the advanced technology known as PCR. Kary Mullis had been an employee of the Cetus Corporation at the time of his PCR discovery. Cetus owned the rights to his technique even though Mullis’s name was on the patent. Cetus initially authorized Dr. Edward Blake, exclusively, to employ its PCR technology.