WA - They sit in prison but crime lab tests are flawed

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Saturday, March 13, 2004

They sit in prison -- but crime lab tests are flawed

By
SEATTLE POST-INTELLIGENCER REPORTER

MEDICAL LAKE -- Next to a visit with her kids, what Kyann Cardwell wants most is a new trial.

The mother of three, a native of tiny Orient in northeast Washington, has maintained her innocence since prison doors slammed shut on her two years ago.

Since then, she's been serving a six-year sentence for manufacturing methamphetamine.

But now she hopes to win her freedom, thanks to a startling revelation: The state failed to tell her that a Washington State Patrol Crime Lab forensic scientist is accused of improperly testing the evidence that helped convict her.

She's not the only one who's been left in the dark.

A year ago, the State Patrol conducted an internal audit of Arnold Melnikoff's work in 100 felony drug cases and found troubling flaws in 30. There were convictions in 17 cases for crimes ranging from simple possession to making meth.

But none of those 22 defendants has been notified that the crime lab evidence used against them had been called into question, the Seattle Post-Intelligencer has found.

That has outraged legal experts and defense attorneys, some of whom are considering filing appeals. They say the state has a duty to release newly discovered evidence that could affect the convictions of the six women and 16 men.

Five of them -- Cardwell among them -- are still in prison.

"People's liberty could have been affected by this," said Anne Daly, president of the 800-member Washington Defenders Association, which represents the state's public defenders.

The State Patrol or the Attorney General's Office has a "moral and ethical obligation" to notify county prosecutors about the audit findings -- and help ensure that there haven't been miscarriages of justice, said Daly and other legal experts.

"Are they more interested in doing the right thing or protecting themselves?" she asked. "I think they should go through all of his cases with a fine-tooth comb and be upfront with everyone about what they find."

In many cases, lab tests proving the substance seized by cops was an illicit drug seemed irrefutable at the time. Defendants felt compelled to accept plea bargains rather than risk longer sentences at trial.

Were innocent people convicted?

Not according to Barry Logan, director of Washington's Forensic Laboratory Services Bureau, who said Thursday that he believes Melnikoff's final conclusions were correct in the cases he handled.

According to lab policy, that meant there was no reason to notify counties about the findings of the audit, Logan said.

But he conceded that defendants and their lawyers would have a different view. "Is it information they would like to have? I can't dispute that it probably is."

Logan said he intends to consult with the Attorney General's Office about whether the lab's policy on notification needs to be revised.

The scathing April 2003 audit report described Melnikoff's drug-analysis work as "sloppy" and "built around speed and shortcuts." It also concluded that 14 of the 30 flawed drug cases needed to be retested because his data was "insufficient" to identify substances.

But the lab was able to retest only four of the 14 cases because law enforcement agencies had discarded the evidence, Logan said.

Melnikoff, who maintains he did nothing wrong, is fighting to keep his $61,980-a-year job. He has been on paid leave since November 2002, when the State Patrol received a complaint about his role in the wrongful conviction of a Montana man based on work he did for that state's crime lab in the 1980s.

State Patrol officials launched an internal investigation, then announced six months ago that they planned to fire the 14-year employee. A decision on his job status is expected later this month. Every option is on the table, including reinstatement, Logan said.

During the audit, crime lab managers reviewed 100 randomly selected cases Melnikoff analyzed between 1999 and 2002.

Besides the 14 that needed retesting, they found problems with 16 other cases, ranging from mistakes in documentation and analysis of evidence to stating he'd analyzed 12 bags of a seized substance when only two were examined.

Investigators found problems on the witness stand, too. A review of a dozen cases in which Melnikoff testified revealed "small misstatements" and "a tendency for conclusions to become stronger as the case developed, from notes to written report to testimony," according to the audit report.

The audit was launched after Peter Neufeld, an attorney with the New York-based Innocence Project, wrote to Attorney General Christine Gregoire in September 2002, urging her to investigate Melnikoff. He said some of Melnikoff's work for the Montana crime lab constituted "scientific fraud."

Melnikoff "fabricated testimony" about the likelihood that hairs found at a Montana crime scene were linked to a man accused of child rape, Neufeld said. Post-conviction DNA testing exonerated Jimmy Ray Bromgard in 2002, resulting in his freedom after 15 years in prison.

Melnikoff's hair-analysis testimony has also been blamed for helping wrongly convict two other Montana men.

Neufeld's complaint was referred to State Patrol officials who reviewed both the Montana issue and his drug cases.

"Mr. Melnikoff's work indicated a level of errors and mistakes beyond that expected of a forensic scientist," an August 2003 administrative report concluded.

Since then, Melnikoff has provided additional information that could affect the agency's recommendation that he be fired, said State Patrol spokesman Fred Fakkema.

Melnikoff, in a written rebuttal, has called the investigation a "witch hunt."

"He had a scientific basis for his conclusions," said his attorney, Rocco Treppiedi, who has advised his client not to comment until the matter is resolved. "This is a man who was crucified because the State Patrol received bad publicity."

Melnikoff, 59, has contested almost every finding in the audit, saying he never failed a proficiency test or had a negative performance review.

He has collected letters of support from 18 prosecutors. Since 1998, Melnikoff has worked on 1,315 drug cases for almost 100 city, county, state and federal law enforcement agencies.

Crime lab officials have said that Melnikoff was not allowed to do hair analysis cases. Documents released by the crime lab show that they became concerned when he made mistakes while preparing to teach an in-house training program on hair examination in 1991.

But Melnikoff said in his lengthy appeal that every drug case he analyzed passed peer review by two colleagues. "If there was a 'problem,' it was a statewide laboratory problem," he wrote.

Using information obtained through public disclosure, the P-I matched the lab numbers of 30 cases cited in the internal audit to a list of 45 defendants, then determined the outcome of the prosecutions.

Interviews with 15 defense attorneys and three inmates revealed that none knew Melnikoff's work on their cases had been criticized by his own bosses.

"I find that shocking," said John Strait, a Seattle University law professor who teaches a forensics course.

Even a seemingly minor mistake, such as mislabeling evidence, is "not casual in the forensic science business," Strait said. Prosecutors and defense attorneys rely on accurate lab results, and few defendants can afford to hire their own experts.

"I'm concerned that sloppy habits beget miscarriages of justice," Strait said. "It's virtually impossible for the average defendant to challenge the forensic evidence."

He called for an external review of Melnikoff's work, saying of the State Patrol: "They're saying trust us. ... I don't think that's adequate."

Full disclosure by the crime lab is crucial to the integrity of the justice system, Daly said.

 Carwell fence
 ZoomDan DeLong / P-I
 Kyann Cardwell clings to the hope that mistakes made by forensic scientist Arnold Melnikoff could free her from Pine Lodge minimum-security prison in Medical Lake. She is serving a six-year sentence for manufacturing methamphetamine.

"Every defense attorney would make hay out of this," she said. "I would wonder what else he was sloppy on, especially when someone's going to prison for a long time."

The lack of notification and narrow scope of the review troubles a Moses Lake lawyer whose client's case was cited in the audit.

"It's horrible," said Robert Schiff-ner. "What's the chance that this is the only 30 cases he cut corners on?"

He heard about Melnikoff's Montana problems in the news and used that to help secure "an extraordinarily good plea deal" for a client last year.

"Melnikoff was to be the expert witness," Schiffner said. "I said I'd put him on the stand and undermine his credibility."

But Schiffner didn't know Melnikoff's work in this state had also been challenged.

In Spokane County, public defender John Whaley said prosecutors have recently been offering to retest anything Melnikoff handled.

Said Whaley: "I got the feeling that the prosecutor wanted to protect him from the embarrassment."

Melnikoff's testimony key

Locked up at Medical Lake's minimum-security Pine Lodge prison, Cardwell hopes the audit report is her ticket to a new trial.

Kettle Falls police stopped Cardwell at the edge of town on Sept. 6, 2001, and arrested her for driving with a suspended license. Her brother, James Peterson, was a passenger in her pickup.

The officer became suspicious of a possible meth connection after smelling a "strong cat urine-like odor" associated with one type of meth manufacturing. A search of the truck turned up several cloth bags containing bottles of liquids, needles, used coffee filters and other items potentially used in making meth.

Stevens County prosecutors later charged Cardwell and her brother with meth manufacturing. She had a prior drug conviction.

The day before she was stopped, Cardwell said, she had cleaned out her rural home where her estranged husband had lived until a few months earlier. The bank was about to repossess her property.

She loaded garbage from the kitchen and bathroom into her truck to take to the dump. When police stopped her, there were paw prints on the truck windshield from her boyfriend's cat, who liked to climb in and out of the cab, she said.

During the trial, Melnikoff's testimony was pivotal.

He testified that the items he tested were commonly used to make meth with red phosphorus. On cross-examination, however, he admitted that the smell of cat urine was not associated with the phosphorus method, but with a different type of meth-making. And he agreed that not all the items needed to make the drug were found.

Cardwell and her brother were convicted in May 2002.

Her appeal was dismissed in December 2003. The Court of Appeals ruled there was sufficient evidence to convict her, including her fingerprint on a jar that contained meth byproduct and a bottle with a watery solution containing meth.

On Jan. 29, the same court overturned her brother's conviction, saying there wasn't enough evidence to prove he was involved.

A few days later, Cardwell found out that the audit criticized Melnikoff's work on her case and recommended that one item needed to be redone. Melnikoff has disputed that, saying two tests on stained filter paper found "possible meth" and a third test produced a "derivative."

But the evidence can't be retested because police disposed of it. That increases the possibility that her sentence could be vacated, said her attorney, David Gasch.

"I want justice for the part of the case he's responsible for," said Cardwell, 39, who prepared for the interview by writing down her thoughts and putting on her best pink sweater. "It's about fairness."

Yet she's also trying not to get her hopes up, seeking comfort in reading her Bible and arranging her first prison visit with her children.

"The hardest part is missing my family," she said.

One woman's tough call

Like Cardwell, Tamara Wilson was stunned to discover that the forensic scientist whose testimony helped convict her was himself in trouble.

"Why wasn't I notified of what had happened with him?" asked Wilson, 29, during an interview at the Washington Corrections Center for Women near Gig Harbor.

"I'd like to see that everything (he worked on) is reanalyzed and looked over."

The audit recommended that evidence be retested in her case. Melnikoff, who testified at her trial, disagrees, saying two out of three tests found meth and "the scientist cannot be faulted for his efforts to examine the minuscule amount of evidence." Retesting confirmed his results, according to Logan.

Still, the audit report on Melnikoff is "potentially exculpatory material," said her attorney, Tim Trageser, who handled an unsuccessful appeal of her meth manufacturing conviction.

 Vials
 ZoomDan DeLong / P-I
 Samples await testing for meth by a high-tech gas chromatograph/mass spectrometer machine at the Washington State Patrol Spokane crime lab.

Trageser said it's up to the courts, not the crime lab, to evaluate the evidence. "Maybe a jury wouldn't have convicted her," he said. "At the very least a judge might give her a new trial."

He has sent a letter asking the judge to appoint new counsel for Wilson, whose mother is now raising her two young sons.

Things began unraveling when Wilson offered to help care for a friend recovering from a car crash. The friend was staying at the home of someone Wilson had not met before in Loon Lake, 30 miles north of Spokane.

Two days after she arrived, police raided the home in November 2000 and found a long list of items authorities associate with meth labs. The owner of the home, Sandra Torres, accused Wilson of sending her to the store to buy meth-making materials.

"I was very surprised," Wilson said. "I didn't see manufacturing at that house. ... I think because she didn't know me I was an easy person to blame."

She was convicted by a jury in October 2001 and sentenced to 3 1/2 years in prison. That same year, Wilson also pleaded guilty to an unrelated meth-manufacturing charge -- "because I was guilty."

Torres was also convicted on a meth charge.

Today, Wilson isn't sure she should seek a new trial. That could prolong her separation from her sons, ages 6 and 8, who have seen her once in the past three years.

"I've made bad choices in my life," said Wilson sadly. "But I wasn't guilty of this particular crime."

'They should have told us'

Melnikoff's connection to her case is bittersweet news to Kimberly McIntosh.

She pleaded guilty to meth manufacturing and accepted a nine-year prison term. Going to trial meant facing a possible 17-year sentence.

"It's upsetting to think I may not have had a fair shot," said McIntosh, 45, during a phone interview from the Corrections Center for Women.

Even defendants who plead guilty have the option to file a personal-restraint petition asking that their sentence be vacated if new evidence is uncovered, said Kevin Holt, the attorney who represented McIntosh. That's because a guilty plea is based upon state evidence that may now be tainted.

In McIntosh's case, the audit recommended that one piece of evidence be retested -- a plastic tube. Melnikoff's lab report stated that it was one of two items that tested positive for meth. But the evidence can't be retested because police got rid of it.

"They should have told us about his disciplinary problems so we could look at his cases," said Holt. "When the state has exculpatory evidence they have to give it to us."

Police raided the home McIntosh rented in Kennewick with several other people in November 2001, seizing a long list of supplies used to make meth.

They arrested her and two men, charging all three with manufacturing.

McIntosh, a mother of five with a history of cocaine and heroin addiction, said she didn't participate in making meth. But she suspected her housemates might be.

"I pleaded guilty to a crime I didn't commit because my attorney said with the evidence and my criminal history I would probably lose," McIntosh said.

Now she's debating whether to ask for a new trial, not sure she can face starting over. Her youngest daughter, 11, is being raised by relatives -- and she's taken responsibility for that.

"I've accepted that I am here because of poor decision-making and choosing the wrong friends," she said. "I have a choice to use this time to do better or do worse."

Machines and judgment calls

Melnikoff's name is still listed on the staff check-in board hanging in the Spokane crime lab. Each day, he calls from home to report in to lab manager Kevin Fortney, as required.

Four other chemists have had to pick up the slack since Melnikoff was suspended, working overtime to clear the backlog. They are not allowed to talk about their missing colleague.

But they eagerly describe how every case they handle must be scrutinized by two other lab workers before the final report is released. Every substance is tested using at least two different methods. Expensive, high-tech machines such as the gas chromatograph/mass spectrometer separate chemicals and graph substances on a computer for identification.

Ninety percent of drug analysis is routine, Fortney said. The challenge comes when analyzing tiny amounts.

"There are judgments when you get into very low concentrations," he said.

But that's why the lab employs scientists, not just technicians, he said.

When Melnikoff was hired in 1989, his credentials included a master's in organic chemistry and a bachelor's in biology from Northern Illinois University. He'd been bureau chief of Montana's crime lab, where he'd worked since 1970.

For the first three years in Washington, he worked in the Kelso lab, doing drug analysis and examining trace evidence -- tiny pieces of evidence found at crime scenes. At least 45 cases Melnikoff handled were not drug-related, including 11 homicides, seven rapes and 13 assaults, according to State Patrol documents.

Soon after being hired, he returned to Montana to provide hair-analysis testimony in a rape case he'd handled in his previous job. The defendant, Paul Kordonowy, was convicted.

Melnikoff's troubles began when his testimony in two other Montana rape trials came under fire. DNA testing overturned the conviction of rapist Chester Bauer in 1997. Then Bromgard in 2002, and Kordonowy in May 2003.

In all three cases, Melnikoff testified using an incorrect probability theory on hair comparisons, including saying in the Bromgard case that there was less than a 1-in-10,000 chance that the defendants' hair did not match the victim. Experts say no valid probability theory exists for hair comparisons.

"He alone is responsible for the conviction of three innocent people," said Neufeld of the Innocence Project. "His powerful, though erroneous, testimony swayed the jury."

State Patrol officials concluded in the August administrative report that Melnikoff's testimony in the Kordonowy trial, while on their payroll, was one more reason to fire him.

Melnikoff defends his hair-examination work as "consistent with his training and experience and the standards of admissibility at the time." At the State Patrol, he believes he's the victim of a "politically motivated" effort to scapegoat him for the Montana scandal. Melnikoff's case did prompt scrutiny of the peer-review system in Spokane and the state's five other crime labs, Logan said.

"That was obviously a problem with the quality of the peer review," Logan said, adding that staff had become lax about criticizing procedural errors.

Spot checks across the lab system last year reinforced the message that peer review is "not just a rubber stamp" he said.

But those who trusted the crime lab to provide fair, accurate results want more than that.

"I sit here and think, 'Oh my gosh, could that have made a difference?' " said McIntosh, the inmate who lived in Kennewick.

"You rely on these people to do a professional job ... They owed us the truth."

Seattle P-I

-- Anonymous, March 13, 2004


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