Crime-lab worker's errors cast doubt on military verdicts

McClatchy NewspapersMarch 20, 2011 

Haxel Marcenaro, a former Air Force enlisted man, was convicted of rape based in part on evidence that was tested by discredited lab analyst Phillip Mills.

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, though, was able to track down a number of individuals who blame their convictions on mistakes that Mills made. McClatchy's review also revealed that the military judicial system stacks the odds against defendants, because of severe appeals deadlines and constant turnover among defense attorneys.

Of 465 cases Mills handled from 1995 to 2005, many had problems.

In a 2002 Navy case, for instance, Mills reported finding semen on a comforter. Four years later, another examiner couldn't find the semen. That same year, Mills found semen on a condom swab in another Navy case. On retesting, no semen could be found.

Other times, Mills failed to detect evidence. This raises the possibility that guilty parties escaped justice.

In a 2001 Navy case, for instance, Mills didn't examine a knife presented as evidence. Another lab technician was more thorough several years later, and found the DNA of someone who wasn't the suspect.

In 388 cases, there was no evidence left to retest.

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. Last Jan. 25, the military appeals court declared that even Mills' "pattern of mistakes" wasn't enough to overturn Luke's conviction. In part, the court's majority reasoned that while Mills subsequently had contaminated DNA tests, there was no direct evidence that he'd contaminated the kind of stain testing he'd performed in the Luke case.

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

"He is rightfully upset at the egregious nature of the problems the lab has had, in his case as well as others," said Luke's latest attorney, David Sheldon. "He's certainly tenacious, and will continue to be."

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.

But prosecution cases are like a puzzle, where one piece is connected to another. Remove one piece, and it's impossible to get the final answer without making a leap. Jurors may give special credibility to forensics evidence and lab scientists, in particular. Lacking muscular forensics evidence, prosecutors might drop a case, bring different charges or raise different questions.

Steven Carlson thinks this is what happened to him.

Prosecutors in 1999 charged the Marine Corps gunnery sergeant with forcible sodomy and related offenses. Carlson's defense included testimony from the former chief of naval operations, Adm. Carlisle Trost, for whom Carlson had served as driver and bodyguard.

"I held him in very, very high regard," Trost said in an interview. "He was a very honest guy. I knew him to be extremely trustworthy."

But prosecutors bolstered the graphic testimony of alleged victims, who were lower-ranked Marine enlisted men, with the forensic analysis Mills conducted.

Mills bungled at least part of his work. He recorded that he conducted his examination on July 17, 1998. In fact, though, he didn't receive the evidence until July 21. No one at the lab caught the error.

Officers convicted Carlson and sentenced him to 15 years.

"All they had on me was the DNA evidence, because if they relied on the individual Marines' testimony, they would find they were unreliable," Carlson said in an interview. "That DNA (evidence) spilled over into everything else they threw against the wall to see what would stick."

As with Ivor Luke's case, investigators subsequently destroyed the evidence in Carlson's case, making it impossible to retest and dooming, so far, his effort to appeal.

Other times, defendants couldn't challenge Mills' courtroom credibility.

Air Force enlisted man Haxel Marcenaro's trial attorney didn't have a forensics expert to rebut Mills, after Marcenaro was charged with sexual assault. Marcenaro, now a Miami resident, was convicted and sentenced to six years and a dishonorable discharge. Every year, he must register as a sex offender.

A year after Marcenaro's conviction, though, a defense DNA expert noted problems with Mills' work. Among other things, Mills apparently had kept material from the victim and the suspect next to each other, raising the possibility of contamination.

Marcenaro's appeal failed. Retesting the evidence during the review of Mills' work didn't exonerate Marcenaro, but he still seethes over the analyst's mistakes.

"What they did to me was a travesty," Marcenaro said. "But the worst thing is knowing that this could happen again to someone else."

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U.S. Navy-Marine Corps Court of Criminal Appeals opinion in United States v. Carlson, April 30, 2009

U.S. Court of Appeals for the Armed Forces opinion in United States v. Luke, April 7, 2006

U.S. Court of Appeals for the Armed Forces opinion in United States v. Luke, Jan. 25, 2011

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McClatchy Newspapers 2011

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