published Sunday, March 27th, 2011

Lab worker’s errors cast doubt on verdicts

By McClatchy Newspapers

WASHINGTON—Life-and-death questions shadow misconduct at the U.S. Army Criminal Investigation Laboratory, where investigators discovered that a lab analyst cut corners and falsified reports: Were the innocent convicted, and did the guilty go free?

The answer is troubling: In many cases, the destruction of evidence and the passage of time make it impossible to know.

“How do you resolve the question when you have no way, when the original samples have been lost and there is no way to retest them?” attorney Frank Spinner asked lab official Michael Auvdel at a July 2008 court hearing.

“I cannot resolve it,” Auvdel replied, a trial transcript shows.

Also unclear: Are there court-martialed men and women who still don’t know about the discrediting of the analyst who contributed to their convictions?

“I think the odds are nearly 100 percent that there are,” said William Cassara, an attorney for a former Navy officer whose conviction was tossed out.

The military said that no imprisoned defendants had been freed as a result of revelations about errors made by lab analyst Phillip Mills, but it didn’t provide a complete list of defendants implicated by Mills.

McClatchy Newspapers, though, was able to track down a number of individuals who blame their convictions on mistakes that Mills made.

Ivor Luke was serving aboard the USS Port Royal in August 1998, when another sailor accused him of sexually assaulting her during a medical exam. Mills conducted the lab exam, reporting that he found bodily fluids on a bed sheet and bra.

Luke was convicted in 1999 and sentenced to two years in prison and a bad-conduct discharge.

It was only after Luke was released that military officials discovered what Andrew Effron, the chief judge of the U.S. Court of Appeals for the Armed Forces, called “Mills’ history of cross-contamination, violation of laboratory protocols, incomplete and incompetent analysis as a DNA examiner and thoroughness issues as a serology examiner.”

Unfortunately for Luke, the Naval Criminal Investigative Service had destroyed the evidence in his case — following military policy at the time — before it could be examined again.

“The government ... destroyed the physical evidence at issue, thereby precluding the type of retesting that might have restored some level of confidence in the process,” Effron noted. “The evidence of Mills’ misconduct undermines the integrity of (Luke’s) verdict.”

Effron, though, was outvoted. On Jan. 25, the military appeals court declared that even Mills’ “pattern of mistakes” wasn’t enough to overturn Luke’s conviction.

Luke is preparing to petition the U.S. Supreme Court in late April, seeking to overturn the military appeals court’s decision.

Two former Navy lieutenants, Samuel Harris and Roger House, have been luckier, in a manner of speaking.

The evidence from an unfounded 2002 sexual assault case involving the two officers was retained, allowing investigators to discover years later that Mills had gotten it wrong.

Exonerated by the Navy judge advocate general, Harris and House are pursuing back pay and other remedies through the U.S. Court of Federal Claims.

“I’m disgusted at what he’s done to all these people,” Harris said of Mills.

Other people may have gotten off scot-free because of Mills’ errors.

Mills didn’t find stains or DNA in 49 cases that he analyzed from 1995 to 2005. Because his examinations were “incomplete, rushed and not properly screened,” according to a lab review, it’s likely that he missed some evidence.

Forensics evidence, of course, is complicated. Usually, it’s only one part of the overall case. Witnesses and victims, too, may testify. It’s possible that Mills made mistakes in cases in which, nonetheless, the right defendants were convicted in the end.

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