Were Army crime lab problems withheld from some defendants?

McClatchy NewspapersDecember 29, 2011 

US NEWS MILITARY-RAPE 4 MCT

Kirk Holcombe, 31, was wounded twice in the Army while serving in Iraq. Holcombe faced a sexual accusation whose verisimilitude relied in part on DNA evidence. Holcombe insisted he was innocent. Belatedly, the crime lab eventually revealed to him potential problems with the lab's DNA expert. But Holcombe, feeling trapped, took an administrative discharge last April that stripped away his veterans' health benefits.

ALAN PETERSIME — Alan Petersime/MCT

WASHINGTON — At a crossroads, the military's chief crime lab kept Army Staff Sgt. Kirk Holcombe in the dark.

Holcombe served 39 months in Iraq. Roadside bombs repeatedly raked him hard and rattled his brain.

Then, home again, the decorated soldier faced a sexual accusation whose verisimilitude relied in part on DNA evidence. Holcombe said he was innocent. Belatedly, the crime lab revealed to him potential problems with the lab's DNA expert. But Holcombe, feeling trapped, took a general discharge last April that stripped away his veterans' health benefits.

'It's ruined me," Holcombe said of his legal ordeal.

The 31-year-old Indianapolis resident now is hoping to regain veterans' benefits. Pentagon investigators, meanwhile, are probing a question that goes well beyond Holcombe's troubling case:

Did the U.S. Army Criminal Investigation Laboratory properly notify hundreds of defendants about potential problems that involved a different lab analyst? Some attorneys fear that the answer is no; what happened with Holcombe, they worry, may be a recurring problem.

"I think USACIL intentionally withholds, I don't want to say their bad laundry, but their bad paperwork," Holcombe's attorney Duane Kees said. "USACIL knows exactly what's going to happen when they turn it over: It automatically calls into question their findings."

Based near Atlanta, the Army crime lab processes evidence used against members of all branches of the military. The analysts handle more than 3,000 cases annually, examining everything from blood and semen to hair strands and handguns.

The painstaking work can help nail the guilty. Sometimes, though, it can be flawed, leaving lab officials with the legal obligation to let defendants know about potential problems.

The Army defends the lab's work, citing improvements made and efforts to communicate with defense attorneys.

"The USACIL has invested time, money, training and personnel to improve overall capabilities," the Army Criminal Investigation Command told McClatchy in a written statement earlier this year. "The USACIL has instituted additional checks and balances in laboratory operations, and will continue to provide the most accurate and reliable scientific information possible."

On Friday, the Army added in a statement that it was "unaware of what information" Holcombe claimed not to have received, and referred further questions to trial attorneys, who could not be reached.

"Discovery requests are responded to in accordance with rules for courts-martial," the Army said in its Friday statement. "This would include incident reports and corrective action reports where required or relevant."

In some cases, though, notification has seemed haphazard.

Navy Lt. Roger House, for instance, resigned in 2003 after he realized that his military career was over. Harris had been reprimanded after an enlisted woman's allegation, rejected by a court-martial panel, that he'd raped her.

House later learned that Army crime lab analyst Phillip Mills had falsified and contaminated DNA test results in a different case. The lab discovered Mills' problems in 2005, after House's discharge. Then a 2006 retest of Mills' work cleared House. House learned of the 2006 retesting only in May 2009, however.

"For reasons unexplained, this exculpatory information was provided neither to plaintiff nor to his counsel at or around the time it was discovered," U.S. Court of Federal Claims Judge Francis M. Allegra noted this July, calling the failure an injustice.

In a separate case newly uncovered by McClatchy, the attorney for Pvt. Abdi Mohamed, who was convicted in 2004 of stabbing a fellow soldier, says he was never notified after re-testers found discrepancies in Mills' work. Mills had identified blood on the knife, but the re-testers didn't find it, according to documents McClatchy obtained. The re-testers also detected the DNA of an unknown person that Mills had missed.

"He had a due-process right to know if mistakes were made," Mohamed's attorney James Culp said in an interview, adding that even if the results wouldn't change the trial, "I should have been told."

The Army, in its statement Friday, disputed Culp's characterization but declined further comment, citing the ongoing investigation.

McClatchy also has learned that last May, the government didn't immediately reveal in a capital murder case that another Army crime lab analyst had flubbed a fingerprint during a proficiency test. The defense attorney was prompted to seek more information after seeing McClatchy's lab coverage. By the time that information was turned over, the analyst already had testified. The unhappy judge threw out her testimony.

Also prompted by McClatchy's reporting, Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, joined Republican Sen. Charles Grassley of Iowa in asking the Defense Department's inspector general to investigate. So far, the investigators have identified 461 of 465 criminal cases that Mills worked on. They've have asked military judge advocates to provide proof that each defendant "received notice concerning the discredited lab work, or the reason such notice was not provided," Assistant Inspector General John Crane wrote the senators Dec. 7.

The Army took the Mills situation "very seriously from the start," the Army Criminal Investigation Command advised McClatchy earlier this year. Officials cited a number of notifications made to attorneys as well as judge advocate staff members.

"I've been dealing with (the lab) for quite a while, and I don't have problems with them filling requests for information," said Dean Wideman, a forensic scientist who works with defense attorneys.

Military and civilian judges agree that defendants deserve to know potentially exculpatory information, or information that undermines the credibility of government witnesses.

Air Force Staff Sgt. Mark S. Jackson, for instance, was accused of using methamphetamine in 2000 while stationed at Nellis Air Force Base in Nevada. Jackson's attorney wasn't informed of testing problems with lab analysts from an Air Force facility in Texas until well after the court-martial.

In 2004, the U.S. Court of Appeals for the Armed Forces dismissed Jackson's conviction, noting that the non-disclosure of lab problems "deprived the defense of information that could have been considered by the members as critical, the reliability of the lab report."

Kirk Holcombe thinks this is what happened to him.

The Grand Rapids, Mich., native entered the Army after his 1999 high school graduation. He planned on a military career.

In April 2003, while with the 3rd Infantry Division, Holcombe was awarded the Bronze Star for exposing himself to hostile fire in order to get a clean shot at nine Iraqi soldiers. He kept returning to Iraq on other combat tours.

A roadside explosive hammered Holcombe in August 2007, while he was with a scout platoon. He suffered a concussion, lacerations and a torn tendon. Eight months later, another roadside bomb knocked him out cold and blew out an eardrum.

Holcombe now is prescribed medication for pain, depression and anxiety. Without Ambien, he can't sleep easily. Sometimes he wakes up thrashing. His lower back hurts. His knees and shoulders feel wrecked, an old armored cavalryman's lament. He needs psychotherapy, but must forgo it because he can't afford it.

He's been denied Veterans Affairs benefits because of the events that began unfolding in June 2010, while he was stationed at Fort Knox in Kentucky.

An 11-year-old friend of his stepdaughter's said that month that Holcombe had tried to unzip her shorts while she was asleep. Holcombe denied it.

The girl's story was inconsistent on certain points, and child protective services in Hardin County, Ky., wrote Jan. 18 that "the charges have been found to be unsubstantiated." That same day, Holcombe's captain wrote that the case "should have been stopped" early.

Nonetheless, the Army had proceeded, with Holcombe's colonel citing "the scientific nature of the DNA evidence" analyzed by an Army crime lab worker named Alejandro Vara. The evidence showed a possible match between Holcombe's DNA and skin DNA — not blood or semen — found on the girl's zipper.

The girl had been sleeping on the Holcombe family couch for some seven hours, presenting an alternative scenario to explain picking up DNA.

Still, on Oct. 29, 2010, the crime lab attorney had assured Holcombe's attorneys in writing that "neither the USACIL nor I am in possession of any derogatory information or materials relating to Mr. Vara."

"It was the usual rubber-stamp answer," attorney Kees said.

And it was incomplete.

At the urging of its own DNA expert, Holcombe's defense team resubmitted more detailed questions. Last January, several months after the lab's original reassurances, the defense struck gold.

On Oct. 20, 2010, the lab revealed, a technical reviewer had noted in a memo "several discrepancies" in Vara's work in reviewing other cases. A supervisor agreed "there does seem to be an issue with (Vara's) attention to detail." The supervisor had taken to double-checking Vara's work.

Other discrepancies were noted, and lab officials prepared a "corrective action plan" for Vara on Nov. 5, 2010, designed to "address his lack of attention to detail."

This belatedly delivered information may have undermined the government's case, but it arrived after an Army hearing officer had let the case proceed, building the momentum against Holcombe.

After the lab's complete report was provided, and after considering the alleged victim's testimony, Army officials offered Holcombe a generable discharge in lieu of a court-martial.

The choice meant Holcombe could risk prison in hopes of acquittal, or he could leave 12 years of Army service with less-than a perfect discharge. He picked discharge.

"It seemed like nothing was going my way," Holcombe explained. "I wasn't risking going to jail and having to register as a sex offender."

But military justice still cornered him.

Holcombe's captain supported a general discharge under honorable conditions, leaving him eligible for VA benefits. However, the brigade colonel, David E. Thompson, downgraded Holcombe to a discharge under other than honorable conditions.

Explaining the discharge in an April 5, 2011, memo, Thompson cited "admission of guilt." Thompson hadn't spoken to Holcombe, and Holcombe steadfastly denied guilt.

Rather, Holcombe says, in accepting the general discharge, he was acknowledging that prosecutors had enough evidence to find him guilty, over his objections. It was an administrative concession, not a legal admission. And it was made, he said, without realizing that a downgraded discharge would eliminate VA aid.

Thompson couldn't be reached for comment

Holcombe now is working as a recycling plant manager, keeping his marriage together and hoping, somehow, to secure veterans' health benefits.

"I just want my name cleared, and to get the help I need," he said.

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