Military crime lab evidence tossed from double murder trial

McClatchy NewspapersMay 25, 2011 

WASHINGTON — Work by the military's premier crime lab is being questioned again — this time by the presiding judge in a double murder case.

In the latest example of troubled testimony by the lab's analysts, a judge overseeing the trial of Army Sgt. Joseph Bozicevich told jurors to disregard testimony from a fingerprint analyst.

The analyst had identified the defendant's fingerprint on a document that prosecutors had presented as evidence.

On Wednesday, a military jury at Fort Stewart, Ga., found Bozicevich guilty of murdering two fellow soldiers in Iraq. Bozicevich, who had claimed self-defense in the 2008 shooting, will be spared the death penalty because the verdict was not unanimous.

His defense attorney, Charles Gittins, said he didn't know whether the judge's decision on the expert's testimony and other questions about the prosecution's handling of evidence helped sway any of the jurors.

"But there was at least one (juror) who wasn't buying the premeditated murder charge," he said.

Military Judge Col. Tara Osborn handed down the ruling on the testimony Monday after the prosecution belatedly revealed that the analyst with the U.S. Army Criminal Investigation Laboratory had made a mistake on a proficiency test.

The expert was identified as both Monika and Monica Wilk Garcia in military documents. An Army spokesman said the military doesn't believe her name should be publicized although she had testified in a public court proceeding. As a result, the spokesman refused to confirm the spelling of her first name.

According to the documents obtained by McClatchy, the analyst failed to identify a fingerprint during the proficiency test.

"The root cause was determined to be that Ms. Garcia had a misunderstanding of the proficiency test procedures and how reports were to be handled," a report on the matter said.

The report, dated May 17, said a lab review of her work over three months "resulted in completely satisfactory performance." She was initially put on probation and returned to full duty in October.

"As of the date of this memorandum, Ms. Garcia's performance as a latent print examiner has consistently met and exceeded the required standard," it said.

The judge, however, concluded that the prosecution should have revealed the information to the defense earlier in the trial as part of routine evidence-sharing practices, known as discovery. By the time it was turned over to the defense, Garcia had already testified and couldn't be cross-examined.

"She testified that no one had detected any problems with her work," Gittins said. "But the judge told the (jury) to disregard her testimony and said it was unreliable."

In response to questions from McClatchy, the Army said in a statement that the examiner did not commit misconduct of any kind.

"The lab has, and continues to, abide by the law concerning the discovery process," the Army said.

New technology and stepped-up scrutiny in labs in general have led to more possible problems being flagged, the Army said. As a result, similar "corrective actions" have been taken after these routine reviews. But the Army did not elaborate on what those cases entailed.

Gittins said he had been prompted to ask for information related to mistakes made by the analyst after reading a McClatchy series on the crime lab.

"They should have told me about this issue from the outset," he said.

The McClatchy investigation revealed that the crime lab had not always informed defense attorneys about mistakes and misconduct at the lab. In one of the more serious cases, analyst Phillip Mills was found to have falsified a report, prompting a massive retesting of his cases. As a result, the lab concluded he had made dozens of mistakes, often when testing evidence in rape cases.

In one of the most serious instances, two Navy officers were convicted of charges related to a sexual misconduct case based in part on evidence tested by Mills. They were exonerated by the retesting effort, but they learned about the retesting by chance without getting notice from the military.

The military, however, has repeatedly refused to provide information on whether other analysts have been found to have committed misconduct or made mistakes that impact criminal cases. Officials have only acknowledged problems when confronted with details obtained from outside sources.

McClatchy, for instance, discovered that military investigators concluded in 2006 that former firearms lab analyst Michael Brooks destroyed evidence from a case file and lied about his actions. His supervisor also had concluded that Brooks had not examined evidence that he said he had.

Meanwhile, Garcia is the second print examiner to face questions about her work in court in a Fort Stewart murder case.

Mistakes made by the other fingerprint examiner, Shauna Steffan, came up earlier this year in a pre-indictment hearing of Army Spec. Neftaly Platero. He's accused of killing two of his 3rd Infantry Division roommates and wounding a third in Iraq last year.

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McClatchy Newspapers 2011

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