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Friday, December 17, 2010

Prosecutor: Crime Lab Produced 'Misleading' Report Implicating Murder Suspects

Posted By on Fri, Dec 17, 2010 at 12:01 PM

click to enlarge Rockne Harmon
  • Rockne Harmon

District Attorney Releases Critique of DNA Evidence in 2007 Homicide

A highly regarded prosecutor and DNA expert who was employed for three years at the San Francisco District Attorney's office authored a critique of work at the San Francisco Police Department crime lab earlier this year expressing significant misgivings about the performance of the lab's DNA section supervisor.

The critique, obtained by SF Weekly in response to multiple public-records requests filed with the DA's office, shows that Rockne Harmon -- a veteran of the O.J. Simpson case whom Harris has called "the guru of DNA evidence in the state" -- believed DNA lab unit supervisor Cherisse Boland had written a "misleading" forensic report on evidence found at the scene of a 2007 murder in Visitacion Valley.

The critique also challenges Boland's decision not to search for a match for the majority of the DNA found at the crime scene. The analyst chose instead to focus on trace amounts of DNA that she said linked two suspects arrested by police to the murder.

Harmon's critique -- written in the form of commentary annotating Boland's written explanation of her conduct in the case -- was released by the DA's office yesterday in response to a broad request for Harmon's correspondence and memoranda from SF Weekly. While it is not dated, Harmon has said he wrote it in March of this year.

Earlier this month, the DA's office responded to a a more specific request for Harmon's review of Boland's work by claiming no such document existed. This week, both District Attorney Kamala Harris and SFPD Chief George Gascon said they were not aware of any review of Boland's work by Harmon.

The release of Harmon's report could further call into question work performed at the crime lab's DNA unit, which is already under attack because of the recent disclosure of an unrelated DNA sample switch in a 2008 homicide case. Defense lawyers say the lab sought to cover up that mistake,

and that the DA's office has been slow to share information about

problems with DNA evidence with defendants, as it is constitutionally

obligated to do.

Harmon has said he is "concerned" that his critique was not shared with defense attorneys through a mass disclosure -- as he suggested to the DA's office -- since it could potentially be used as exculpatory evidence in future cases that involve Boland. Defense lawyers could theoretically use the document to cast doubt on the quality of Boland's work and testimony, particularly in light of Harmon's stature within the criminal justice community.

"It wasn't earth-shattering, but it's something that should be out there," Harmon said last week. "I think what's earth-shattering is what's happened to it."

The document released by the DA's office provides no indication of whom it was sent to, although Harmon maintains he submitted it to officials at both the DA's office and SFPD. It is also unclear in what format it was sent, since the critique has no cover page or clear title.

Harmon's criticisms are attached to e-mails that Boland sent to Edward Blake, a forensic expert who worked for the defense in the trial of Joc Wilson and Emon Brown for the murder of Byron Smith. Men on bicycles gunned down Smith on Velasco Avenue in 2007.

A jury acquitted Wilson and Brown earlier this year. Afterward, both Blake and Tony Tamburello, Brown's defense lawyer, sharply criticized Boland for failing to indicate -- in both her forensic report to investigators and in testimony before the grand jury that indicted Brown and Wilson -- that the majority of DNA found on the bicycles did not come from either man, but from a third, unknown person whom Boland never tried to identify.

Tamburello wrote a letter to Gascon complaining that this omission might "constitute criminal conduct warranting further investigation."

In an e-mail to Blake after the trial, Boland wrote, "In my report, I clearly state that both Mr. Wilson and Mr. Brown are excluded as possible sources of the major DNA profiles detected on the grips." She added, "You may be interested to know that neither Homicide Investigator, [prosecutors] or defense attorneys ever contacted the Lab to see if this major unknown DNA profile could be searched using CODIS." (CODIS, which stands for Combined DNA Index System, is the database of criminal DNA profiles maintained by the FBI.)

However, Harmon found that Boland's statement about the completeness of her report "is not completely accurate," since she failed to mention the full extent to which the major DNA profile was present. (Harmon notes that it was found on both grips of one killer's bicycle, not on just one grip, as Boland had indicated. You can read Boland's original forensic report here.)

As for her assertion that no one had asked her to try to identify the DNA source, Harmon wrote, "Because of the misleading writing of the report ... no one knew or should reasonably have been expected to know that this Major profile was there."

Boland also sought to justify her conduct by saying that the DNA profile found on the bicycle did not meet the FBI's guidelines for uploading into CODIS. Harmon also picked apart this argument, however, noting that "This answer suggests that the fact that there is a different major profile on the bicycle grips is of no interest to the investigator or prosecutor. It has been common, with cold cases, that if the DNA profile does not 'match' suspects, it is uploaded to CODIS."

Harmon also wrote, "If her decision not to search was correct, then why did she not ever

mention it to the Investigator or [prosecutor], so that at least they

would understand and be prepared to deal with it during the

investigation and/or trial?"

You can read the full critique from Harmon here. (The underlined portions of the document are Harmon's comments.)

Boland did not return calls for comment.

In a letter to SF Weekly accompanying Harmon's review, Paul Henderson, chief of administration at the DA's office, wrote, "Mr. Harmon's statements were not made on behalf of the District Attorney's Office, and were sent directly to an outside party." Reached by phone today, Henderson said he would have to check with other officials in the office to find out who Harmon had originally addressed the critique to.

After an interview with SF Weekly last week, Harmon has refused to comment further on his criticisms of Boland. However, he did verify in an email today that he authored the critique released by the DA's office.

Follow our continuing coverage of the crime lab's DNA unit.

Follow us on Twitter at @TheSnitchSF and @SFWeekly  

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Peter Jamison


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