I am a 19 year veteran of the Arkansas State Crime Laboratory, now its
Executive Director. I hold a bachelor’s degree in biology, and completed graduate
work in statistical genetics at the University of Central Florida. My background is
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in DNA and serology. I have had training in DNA from several private businesses
involved in DNA work, and from the FBI Lab in Quantico. (BMHR 384-385).
I did some serology work on this case when it arose. Our Lab did not do the
original DNA work in the case, because we did not do DNA testing in 1993. The
original DNA work was done by Genetic Design. My original lab notes in the case
have been admitted as Exhibit 21.
Items Q6 and Q10 were samples taken from two pairs of pants. I took
cuttings from each of the pants. I then administered an acid phosphatase screening
test. The test is a presumptive test for the presence of semen. The theory is that the
test reacts with acid phosphatase which is known to be present in semen in large
quantities. (BMHR 389-390). The test is also known to react to the presence of
both biological and non-biological material. That is part of the reason it is a
presumptive and not a confirmatory test.
In testing one of the two samples from the pants labeled Q6, I obtained a
weak reaction in one of the two samples. I then completed a microscopic
examination. Microscopic examination of a sample for sperm is a way of
confirming the presence of semen. In looking at the sample that gave the reaction,
I saw no sperm. I then went on to do a P30 test. P30 is an antigen that is found in
the prostate gland of males, which would react to the presence of ejaculate in a
sample. At the same time, I performed control tests to enable me to assess whether
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I was getting conclusive testing. (BMHR 387-392).
I also ran a substrate control, which is a test on the jeans themselves to see
whether something in the garment itself was causing any reaction that was
observed. (BMHR 393).
I found no blood in either Q6 or Q10.
I also noted that the blue jeans Q6 were described as dirty, and soiled, which
was significant because I would assume that there would be bacteria on the pants
because they had been found in water at the scene. (BMHR 395). The same was
true with respect to the pants labeled as Q10 as well.
The reported result on the P30 test was positive, but in my lab notes I stated
that it was a false positive. Because I had also obtained a positive reaction to the
test in my substrate control, I determined that the test was invalid. I wrote in my
notes that I had obtained “false positive results”. (BMHR 395). There were no
valid results because when you get a positive result in your substrate control, that
means that you cannot get valid results on the test sample you are running.
I had also taken a laser to try to see if I could identify any stains. That test is
not specific to the identification of semen. I was getting positive readings from the
pants, which invalidated the tests I had done. (BMHR 399).
I had also obtained a reaction on one of the chemical tests used on Q10, but I
again looked for sperm microscopically, and did not find any sperm. I once again
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obtained a positive reaction on my substrate control. I also noted in that set of
notes that I obtained a false positive. (BMHR 392-400).
I don’t recall either Mr. Stidham or counsel for Mr. Baldwin sitting down
with me and reviewing the lab notes and what these results meant. (BMHR 401: 7-
10).
Eventually, I sent the cuttings from the jeans (Q6 and Q10), a sample of
possible tissue from a knife (Q37), and tissue recovered from the ligature from
James Moore (Q39) to Genetic Design which was a DNA lab. I transmitted the
material covered by a letter that I had authored, in which I did not indicate that I
had any positive result on the P30 tests.
After sending materials off, I spoke by phone with John Rader, a
representative from Genetic Design. I made notes of the conversation, noting
specifically that the DNA lab reported no amplification on three of the items. With
respect to the samples from Q6 and Q10 I had written that there was some DNA
found but it was possibly bacterial in nature. (BMHR 404-405).
I later testified in the Misskelley case concerning items Q6 and Q10. I did
testify that on the P30 test, I got a positive reaction. I also testified that I had run a
control that gave a similar reaction. I said that there may have been something in
the mud that interfered with my test. I also said that I submitted the cuttings to
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Genetic Design so that they could use a more sensitive technique. I would agree
that DNA testing is not a more sensitive technique for the detecting the presence of
sperm. (BMHR 407-408).
At trial, when questioned about other techniques I used, I described the laser
as a test to identify stains including sperm. However, I would now agree that a
laser is not a test. It is a tool to visualize a stain, it is not a test like acid
phosphatase. (BMHR 409).
I agree that based on the P30 test I could not say whether there was semen
present on the pants. I also agree that I did not identify semen using microscopy. I
further confirm that in filling out my lab notes I indicated that there was “no semen
found on any items.” (BMHR 411: 15). I am not sure whether that was clearly
brought out before the jury in the trials.
Reviewing the testimony of the State’s DNA expert, Michael DeGuglielmo,
and based on my training in DNA technologies, I disagree with his testimony that
implied that the DNA readings from the cuttings suggested the presence of DNA
for human or higher primates. I agree that you could not rely on the type of
quantitation available in this case to make that statement. I also agree that the
DeGuglielmo testimony indicating that small amounts of DNA detected had been
present in male or sperm portions of the extraction was incorrect in the context of
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this case. (BMHR 423).
Deguglielmo also, in my view, incorrectly testified that the Arkansas Crime
Laboratory had not ascertained microscopically whether there was sperm in the
cuttings.
It was also incorrect for Mr. Deguglielmo to have stated on crossexamination
that the extractions done in the case would have separated male and
female biological components.
I agree that the testimony offered by Deguglielmo could have been followed
up by questions pointing out that I had performed a sperm analysis and had found
no sperm, and further that I had written a report dated June 1, 1993 indicating that
there was no sperm found on Q6 and Q10, and that there was no valid positive P30
result. (BMHR 425-428). Also, DeGuglielmo mistakenly testified that the testing
done in this case would have separated male from female components–which was
an error. (BMHR 426-427).
It would have been reasonable for counsel to have followed up the questions
asked at trial to point out that I had written a report stating that there was no sperm
found, and pointing out that I had a note of a conversation with a representative of
Genetic Design stating that some of the reaction for DNA might have been
bacterial, and that the DNA levels shown in the testing indicated that as well.
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(BMHR 427-428).
DIRECT EXAMINATION BY JOHN PHILIPSBORN
At the time this case occurred, I was involved in forensic serology and
processing of evidence at the Arkansas Crime Lab. (BMHR 430). I got involved in
the case about 24 hours after the bodies were discovered. During the processing of
case evidence there had been some question as to which clothing belonged to what
boy. I viewed that matter as the responsibility of the Medical Examiner’s Office,
which is one of the components of the Crime Lab. When a case comes in through
the Medical Examiner’s office it is given an ME number and then it will be given
an associated lab number. According to my review of evidence, the number
associated with Mark Byers was 93-05718; the number 93-05717 was Mr.
Branch’s case, and Michael Moore’s was 93-05716.
I remember that ligatures were associated with the bodies of the boys. They
would have been looked at by my colleague Lisa Sakevicius, a criminalist who
specialized in trace evidence. I looked at them too. (BMHR 435-436).
The Lab kept both a file and a set of notebooks on the case. They were part
of the official record of the case. The Lab notes indicate that item FP6 were the
ligatures associated with James Michael Moore. Had one of the trial lawyers
wanted to do so, that lawyer could have reviewed the laboratory notes with an
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analyst prior to trial.
Our Lab has given post-conviction defense counsel copies of the notes, and
allowed post-conviction counsel to go through all of the evidence at the Lab. They
had criminalists look at the evidence as well. Trial counsel could also have
engaged in the same process had they asked. (BMHR 440-441).
Had someone asked to review the photo logs used by the lab, and hair slides
generated by the Lab, someone would have been able to tell that there were
questioned hairs associated with ligature FP6, which was associated with the
victim Michael Moore. One of them was a red beard hair. (BMHR 443-444).
There were notations on the slide itself from Lisa Sakevicius. Defense counsel
could have actually looked at those hairs. On the slide from the Moore ligature
there was an indication of a red hair fragment and a beard hair fragment.
While I recall having met with Paul Ford, I never recall telling Ford that
some hair had been found on one of the ligatures. (BMHR 444-445). I did not
know how Ford would have come about the information concerning the ligature,
though the hair were found in the Moore and not the Byers ligature. That kind of
information would have typically come from Lisa Sakevicius.
[The Court also clarified that multiple animal hairs were also found in the
evidence. (BMHR 445-446). Counsel clarified that the hair in the ligature was
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recently identified as a human hair. (BMHR 447)]
CROSS EXAMINATION BY BRENT DAVIS
Lisa Sakevicius passed away in 2000. Her notes indicated that one of the
two shoe strings might have been cut in two. (BMHR 447-448. I don’t feel that I
misled the Misskelley jury on the issue of whether sperm was found on the
cuttings. I said that none was. (BMHR 450). If the lawyers had been interested in
trace evidence, it is more likely that they would have talked to Lisa Sakevicius than
to me.
REDIRECT EXAMINATION BY MICHAEL BURT
The prosecutor’s closing argument read to me from the Misskelley case does
indicate that the pants that I had looked at under the microscope were muddy and
that I could not see any sperm. In fact, my vision was not obscured under the
microscope. Normally when a stain is processed in the laboratory, there would
have been an extraction that would have resulted in the separation of mud and
potential sperm such that any sperm would have been clearly visible had there been
some.
Given the damp and wet conditions that the jeans and other pants were found
in, my opinion is that it would have been difficult to find interpretable DNA on the
pants. (BMHR 461)
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