Episode 6: Implications for other cases

S1: Charles Merritt is a criminalist , meaning he analyzes crime scenes for the San Diego Sheriff Crime Lab. When he retired in 2013 , he'd spent 31 years in the lab , and there are a lot of stories about his mistakes. A story about him driving evidence from the lab to the DA's office in an undercover Corvette. And he lost the evidence in the back seat. Another story about him accidentally mixing in his own fingernails with collected evidence. There was also a memo from a colleague saying Merritt wasn't qualified to do this type of analysis. Merritt did a lot of work on Jane's case , and her lawyers say his work was sloppy. Here's Jane's head lawyer , Paula Mitchell.

S2: They did not write down where they took swabs. They did not wear gloves. This is somebody who's collecting blood evidence , and he's not wearing gloves. He's , um , putting his equipment down on on items of evidence and then moving it. So a clipboard , a tape measure , if you're going to set it on the bedspread where you believe there may be the victim's blood , and then you're going to pick it up and you're going to move it over to the carpet. I mean , this is how contamination occurs.

S1: Mitchell says none of the blood evidence was handled correctly. A lot of what she describes here seems like common sense.

S2: You need to be able to show there was no opportunity to tamper with it. In this case , the individual who collected Bob Doherty's blood sample from the autopsy drove it over to the sheriff's department and put it in this same room right next to all the evidence of all the blood swabs , none of which were sealed , the blood , um , vial itself was not sealed. The , um , in fact , the individual who collected it admitted under oath that he opened the vial , took the purple top off , and he took some of the blood out. And he was creating a what's called a reference sample. And then he put the the lid back on. We have no idea when or how any of those procedures were done. They weren't photographed. They weren't documented. We only know about it because we put them on the stand and asked him to explain how this blood was handled. So you've got this room. It's not checked in to property and evidence. It doesn't have a barcode on it. It's got all the swabs , all the bedspread , the carpet , the everything that they collected. It's got an open vial of blood. And suddenly we see these lab reports coming back where things are crossed out. It says it was negative for blood , and it's changed to positive for blood. I mean , it was just getting worse and worse and worse. And it was really after we were able to put these people on the stand and cross-examine them about how they handled the evidence in this case , that we were able to make it clear both to the prosecution and I think to the court , that this is this kind of evidence is not sufficient to , um , to bring a , a first degree murder charge against somebody.

S1: There were also reports about another lab employee who worked on Jane's case. Her name was Connie Milton , and it came out that in the years after Jane's case , there were ten reports of her contaminating evidence in other cases , either with her own DNA or DNA from a different piece of evidence. Another lab employee started keeping a secret log of her concerns about Milton's work. In 2010 , Milton stopped doing casework but kept working in the crime lab. Milton retired in 2021. She didn't respond to requests for an interview , but she told the San Diego Union Tribune that the scrutiny of her work came from Jane's lawyers looking to cast doubt on the conviction and from jealousy among some of her ex-colleagues. Charles Merritt retired in 2013 and also didn't respond to requests for comment. All of these revelations led to something pretty unusual. The district attorney's office sent out two letters in 2021 to all local defense lawyers. The first was just three paragraphs long and said in part that Connie Milton had , quote , a record of matters that may be relevant to her credibility as a witness. It said there were concerns about her work that spanned 17 years , from 1996 to 2013. During that time , she worked on hundreds of cases. The second was about Charles Merritt. It alerted defense lawyers about problems with Merritt's analyses , both in a 2005 case and in Jane's case. The DA's office said both letters were meant to fulfill a legal obligation. The prosecution is supposed to let defendants and their lawyers know when they have information. That could be helpful , but neither letter mentioned any specific cases , so it's up to defense lawyers to contact prosecutors. If , quote , you believe this information may be relevant in a case involving one of your clients. Here's Eliza Haney , who works with Paula Mitchell.

S3: The DA's office issued letters to the entire defense community saying , if this person was involved in your case , we have we have documentation. We are required under the Constitution to hand over to you , which was a process that only got started based on , you know , mostly Paula's , um , you know , diligence in turning over every stone in this crime lab.

S1: Paula Mitchell says , because the DA's office only keeps emails for 90 days , there's a lot of missing information.

S2: I would certainly imagine that every , any and every serious felony case would be impacted if they're destroying their destroying emails and correspondence with experts that may very well contain exculpatory Brady material , that they have a constitutional obligation to turn over to the defense , and instead they're destroying it. And , and and think about it in the context of wrongful conviction cases where , you know , you come back 20 years later and you're asking them for their records , and a new evidence is uncovered , which leads to a domino effect of needing to go down a different path and go see what they knew and what they , uh , when they knew it and what they disclosed. And , and they're basically saying , you know , pound sand , it's all destroyed. We don't keep it.

S1: They say they have only just scratched the surface of what the problems really are at the San Diego sheriff's crime lab. Unfortunately , we have no idea what impact either of these letters had. The DA's office doesn't keep track of whether any defense lawyers got in touch with them after the letters were sent out , and they also say they don't have a system for tracking what other cases Charles Merritt and Connie Milton worked on. We tried for months to get this information. We even got our lawyers involved to demand some type of list. Of all the other cases Charles Merritt and Connie Milton worked on , or at least testified during. All we got was a partial spreadsheet of 42 cases they testified during. But with no information about who the defendants were or even the lawyers so we could track them down. Michael Andrea says a lot of these cases should be re-examined. And he says so much science used in trials 10 or 20 years ago is just not holding up.

S4: Quite mark evidence. The fact that can you look at the pattern of a bite mark , say , on skin and then compare it to suspects dentition or you know , their teeth and see if there's a match ? Well , for years and years people were doing that night and day. Well , then along came DNA , because you think about it , you can also swab a bite mark and look for residual saliva. And what we found is that the DNA was a cross-check to say that a lot of times these so-called matches weren't matches at all , that they were really just the opinion of the expert that wasn't based on science.

S1: He says another glaring example is hair analysis.

S4: The you know , the idea that you can look at hair from a crime scene , physically look at it under a microscope , and then compare it to known hairs from a suspect and try to say that it could be this person , that there's a so-called match. And again , in these cases , you know , that can be cross-checked with DNA. And very often it was found that there's not a match and that ultimately the so-called science is not scientific at all.

S1: You'd like to think that was all in the past , that our legal system has evolved to pass these outdated methods. But Mike Kovaleski says a lot of that science is still used in trials today.

S5: The hope , and maybe even the expectation is that over time , science gets better and that some of these junk sciences end up being discarded or not used at all. Unfortunately , that's not always the truth. Bloodstain pattern analysis is still commonly used in criminal cases. Even though there is a lot of research that undermines the reliability and credibility of that evidence , they still use it a lot. Fingerprint evidence is still used a lot , and while that can be reliable in certain circumstances , it also can be very unreliable.

S1: Keep in mind that Mike Kovaleski is defense attorney , so he has a specific angle on this. The DA's office declined our interview requests , but Kovaleski says there is just as much of a danger of innocent people being convicted based on what he calls pseudoscience as there was when Jane was convicted.

S5: I don't feel like innocent individuals are any safer now from prosecution and conviction than they were in 2001. I mean , obviously , circumstances change and certainly there are tools available to people that allow them to prove their innocence in ways that were not available in 2001. A lot of social media stuff , cell phone stuff , um , GPS , um , location services , um , DNA , uh , there is a lot of that available to people , but there are also , uh , new ways , um , in which to utilize those very same things. G.P.S. location , uh , social media , uh , everything that's on our cell phones to take those same pieces of evidence and utilize them , um , in a more sinister way , to make someone look guilty when they're not. So as all of these tools become available to defendants to prove their innocence , those very same tools can now be used against them to gain a conviction.

S1: He says. Even DNA technology hasn't completely changed things.

S5: As DNA evidence , um , really does undermine the reliability of these other sciences that have been used. You would think that it would replace them and that they wouldn't be used anymore. But in cases where there is a paucity of evidence , where there just isn't that much there , the less hard critical evidence there is , the more likely law enforcement and prosecutors will resort to these more speculative sciences to prove their case. That's still happening , unfortunately , because you would think , yes , that DNA would just replace these and that those , um , uh , forms of junk sciences would fall by the wayside , would no longer be used. Um , would become irrelevant. Um , but I don't think we're seeing that. I think we're still seeing them kind of as , uh , you know , prosecutors and law enforcement are still keeping those sciences in their back pocket just in case. There's nothing else to support their case. They'll they'll turn to those sciences.

S1: In fact , he says there's a new one. There are experts who claim to be able to tell from the audio of 911 calls whether the caller is guilty.

S5: And he has , um , said that he's done some research , uh , nothing , which has been peer reviewed , um , but has done some research and has been able to parse out words or attitudes or demeanors from 911 calls from which he can detect whether or not the caller is actually the person who committed the crime. And prosecutors are actually using these experts and people trained by this expert to prove their cases.

S1: It sounds wild , but this is actually true. The solution , says Mahle Mayhill Andrea , is that there need to be more defense attorneys who are not intimidated by science. He thinks if Jane's original lawyer had challenged the science's head on , the outcome could have been different. Jane wouldn't have spent 20 years in prison , and maybe we even could have caught the person who killed Bob.

S4: Moral of the story is , you know , don't take the other side's word for it. You gotta dig in and not just stipulate. You got to get an expert. You got to look at the reports , not just the reports. You got to look at the notes. You got to look at the data. And not even just that. You got to look at the background of the analyst as well. That was another issue that came up in this case. You know , it could look like smoke and mirrors because not only did they represent they had DNA , but they had tire track evidence. They had time of death evidence. They had blood spatter interpretation. Um , and I think to , you know , a defense attorney particularly who's not hip to this or doesn't have a lot of resources that may cause you to just throw up your hands and say , okay , we have to sort of agree with those results. And that's kind of what happened in the first trial , because ultimately the defense said , well , yeah , it did happen in the House. But it wasn't Jane. It was clear.

S1: Jane's wasted years in prison has led to one positive outcome for her and her lawyers from the Innocence Project. It's a new program that will help defense attorneys challenge forensic science. Head on. Jane's had lawyer Paula Mitchell has started a new Innocence Project program , focus , specifically on forensics. They're collaborating with the California Forensic Science Institute at Cal State L.A. , which teaches students who go on to become criminologists in law enforcement labs , people like Charles Merritt and Connie Milton. Paula Mitchell says those criminalist students look at Innocence Project cases and see how harmful bad science can be in the courtroom.

S2: They're learning kind of , um , by very in a very personal way , what happens when a criminalist takes the stand and is not entirely forthcoming or is not is testifying beyond the scope of their expertise ? Or is , um , not , um , accurately representing what can be gleaned from the evidence or exaggerating ? We can try to move that needle even more and make sure that the forensic standards that are in place now , um , are , are applied to the evidence that was used in past cases.

S1: And those same criminalist students who have a lot of forensic science knowledge are helping with Innocence Project cases.

S2: Hair microscopy , bite marks , um , arson , uh , foot and tire impression. Like all ballistics , all of these different disciplines have evolved so much in the last 25 years. Now , some of the evidence that we see from cases from the 80s and 90s. It doesn't even pass the laugh test. And so those cases really need to be re-examined to see if , if that kind of faulty forensic evidence was responsible for wrongfully convicting someone.

S1: And this all has a direct impact on Jane , too , because Paula Mitchell made Jane a policy adviser for this new Innocence Project , and that provides her with a small source of income , because otherwise , even though she's out of prison now , she's struggling with how to manage the rest of her life. That's next time. Free Jane is hosted by me , Katie Hyson. It's reported and produced by Claire Trager , sound design by Am FM music. Additional producing by Lara McCaffrey. It was edited by David Washburn and Terrence Shepard , web design by Brendan Titchener. And our news director is Terrence Shepard.