Judge finds military conviction with faulty evidence 'injustice'

McClatchy NewspapersJuly 13, 2011 

WASHINGTON — A federal judge has said that "injustice" was done to a former Navy officer who was wrongly convicted with the help of a discredited military lab analyst, but he also concluded that the court can't do anything about it.

In a sobering new ruling, a judge concluded that the Navy doesn't owe back pay to former Lt. Roger House even though House felt squeezed out of the service after a court-martial that included "faulty and perhaps fraudulent" evidence.

"Some might view this seeming incongruency as a blunt metaphor for the limitations of the law," U.S. Court of Federal Claims Judge Francis M. Allegra conceded.

Nonetheless, Allegra sided with the Pentagon in reasoning that House's 2003 Navy resignation meant he wasn't owed a promotion or the back pay he would have received as a lieutenant commander. Sounding regretful, Allegra said he was "not free" to rule otherwise, given judicial precedent.

"Undoubtedly, the result here will leave (House) dissatisfied," Allegra said in his decision last Friday. "His reputation has largely been restored. The emoluments associated therewith have not."

House's attorney, John Wells, suggested Wednesday that he could file a motion asking the judge to reconsider.

The evidence deployed against House in his 2002 court-martial was processed by a subsequently discredited Army Criminal Investigation Laboratory analyst named Phillip Mills. House and a fellow Navy lieutenant were exonerated when Mills' DNA examination results later were shown to be wrong.

"But for the DNA evidence supplied by Mr. Mills, Lieutenant House would not have been court-martialed," Allegra suggested.

Mills' work, and the lab itself, remain under scrutiny. On Thursday, the Defense Department's deputy inspector general, Randolph Stone, is scheduled to visit the Atlanta-area facility for a half-day tour.

The tour is part of an investigation requested by the chairman of the Senate Judiciary Committee, Democratic Sen. Patrick Leahy of Vermont, and Republican Sen. Charles Grassley of Iowa, prompted by McClatchy's reporting about Mills and the lab. In part, officials are interested in why some defendants apparently weren't properly informed of exculpatory evidence from the crime lab.

("We will) investigate whether appropriate steps were taken at the Army Criminal Investigation Laboratory with regard to allegations involving a forensic analyst," the Office of Inspector General told McClatchy in an e-mail statement Wednesday.

Mills resigned from the military crime lab in 2005, shortly before he was to be fired for making a false statement in another case. A three-year, $1.4 million investigation subsequently raised serious questions about Mills' work in general.

Lab officials disagreed with Mills' DNA results 55 percent of the time in cases they could retest. They also found errors in "thoroughness" in 13 percent of the Navy and Marine Corps cases that Mills handled.

Further investigation was frustrated, though, because law enforcement officials had destroyed evidence, which was routine, in 83 percent of Mills' cases before it could be retested. Some defense attorneys didn't learn about the lab problems until later.

"For reasons unexplained, this exculpatory information was provided neither to plaintiff nor to his counsel at or around the time it was discovered," Allegra noted in House's case.

House had been a highly regarded officer, tapped as executive assistant to the Navy's surgeon general. His Navy career collapsed, though, after he and two other officers were charged with sexually assaulting a female sailor. The officers were acquitted of assault but convicted on lesser charges, including conduct unbecoming an officer.

Though a Navy board recommended retaining House, his superiors told him that his military career was finished. He subsequently resigned. After Mills' errors came to light several years later, the Navy corrected House's record and returned a $1,000 fine.

House subsequently argued that if he hadn't been persuaded to resign, he would have been promoted to lieutenant commander. Allegra countered that although House's decision to resign was "understandable" under the circumstances, it was nonetheless a voluntary act that rendered him ineligible for back pay.

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McClatchy Newspapers 2011

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