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Thursday, July 10, 2008

Editor’s note: This series is the product of a six-year investigation by former Daily News-Miner reporter Brian O’Donoghue and his journalism students at the University of �ֻ�ֱ�� Fairbanks, with support from the News-Miner.

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When lab tests proved inconclusive, Fairbanks lawmen fashioned an exhibit that even the man who explained its significance to Hartman jurors later acknowledged others may find scientifically flawed. 

The late Dr. Franc Fallico, �ֻ�ֱ��’s former chief medical examiner, never backed off the testimony that helped send four men to prison for John Hartman’s 1997 murder. However, he later conceded the exhibit’s origin outside the crime lab invites skepticism.

“There could be an argument that’s unrelated to me,” he said in a taped February 2007 interview, “about whether one should make that kind of exhibit. Whether a laboratory person, a criminalist, is the one to do it, and anyone else who does it is somehow or another committing an act that is not quite valid scientifically.”

The trial exhibit featured several boot tread transparencies layered over a color photo of the bruised victim. It’s the closest to forensic proof offered against the men convicted of fatally stomping 15-year-old Hartman on Oct. 11, 1997. Legal arguments raged for years about the photo overlay’s assembly, the lack of a reference scale in the underlying photo of the victim and other alleged problems.

“It’s corrupt,” observed John Thornton, a retired University of California at Berkeley forensic scientist. “It’s very liable to create a false impression.”

Thornton, who testified as a paid defense expert at the final Hartman trial, contends the tread of George Frese’s Kmart boot was too shallow to leave such bruises. Fallico was “reckless” in suggesting otherwise, he said. 

Fallico insisted he carefully parsed his words at all three Hartman trials. “These things relate to a standard of proof that’s ‘suggestive of.’ I didn’t say ‘consistent with,’ and I didn’t say ‘pathognomonic of,’ which to me would be higher standards of proof.”

Beyond dispute is that the overlay and Fallico’s interpretation of its significance came as an 11th-hour courtroom surprise, buttressing a case that looked far easier to prove 16 months earlier — the day police announced four arrests backed up by a pair of confessions. Collecting hard evidence in the time since the arrests had proved elusive, a fact that led police to seek informants among cellmates and other inmates. 

 

Crime scene intrusions

Officers responding to Hartman’s assault confronted a crime scene disturbed by the ambulance crews and encroaching upon a well-traveled intersection. “Looks like there might be some skid marks out in the middle of the road,” an officer radioed dispatch, “pretty close to where some personal items of the victim might be.”

With manpower stretched thin by an unrelated tactical operation, securing the area from intrusion proved difficult.

“Had a vehicle come through the crime scene over here on Ninth (Avenue) and Barnette,” an officer notified dispatch at about 5 a.m. that Saturday.

A medic returned from the hospital and pointed out where Hartman was found, across a curb. A half-dollar-sized pool of blood

marked the spot where the teen’s head had rested on pavement. Samples were collected.

Combing the scene, investigators also collected a pack of Big Red gum, a light blue book of matches, a comb, soda and beer bottles, and several cigarette butts.

The investigation moved swiftly.

By early afternoon, detectives had a confession from Eugene Vent, a drunken teen busted following a reported armed assault at a motel. The 17-year-old said that he had jumped Hartman together with three other current and former Howard Luke Academy basketball players: Frese, Kevin Pease and Marvin Roberts.

Frese, 20, showed up at the emergency room that same afternoon seeking treatment after hurting his ankle in a fight he said he was too drunk to recall. A detective and a nurse perceived a match when they eyeballed the suspect’s left boot against the victim’s bruises.

By sundown, detectives had Frese’s confession, too.

 

Warrants net bloody shirt and gun 

Investigator Peggy Sullivan and Sgt. Dave Kendrick returned to the crime scene Sunday. They photographed the skid marks, along with several beer bottles, intact and in pieces. They measured the distance separating each fragment from the pooled blood. One of the smashed Budweiser bottles was in smaller pieces this visit. Sullivan collected remaining shards.

Roberts’ Dodge Shadow hatchback yielded a .357-caliber Ruger Magnum pistol in a red nylon bag. The gun was unloaded, but a pair of rounds rested in the center console.

Warrants served on the suspects’ residences netted boots, sneakers, shoes, jackets and cell phones. More rounds for the pistol were recovered from Roberts’ home. At Pease’s house, police found a bloody shirt and a 52-plant marijuana-growing operation.

That Monday, state crime scene investigator Turner Pippin arrived from Anchorage and processed the suspected getaway car, cutting out pieces of carpet and printing out each tire tread. He gathered some 30 items from inside the vehicle and out, including fingerprints, fibers and other potential trace evidence.

Police tagged, bagged and shipped the material to the state lab. They also forwarded potential evidence from the motel assault and another robbery thought to involve the Hartman suspects.

The four suspects had attended a wedding reception. Working off the guest list, police backtracked the suspects’ movements. More than 100 interviews were taped and summarized in reports. Select interviews were transcribed.

“We’re strapped to the max,” Lt. Paul Keller told a judge a month into the investigation. 

Earlier that year, then-Mayor Jim Hayes proposed cutting the city’s $5.2 million police budget. 

Given the expense of the Hartman investigation and an unrelated teen kidnapping case, the mayor changed his view. “I’ll find some money somewhere to get this done,” he said that November. “These cases are just too important to us.” 

 

Missing fingerprints

Test results began arriving in December, packing a surprise: Nothing tied the suspects to the victim or the alleged getaway car. 

A hair detected on one of Frese’s boots was non-Caucasian, meaning it wasn’t Hartman’s. The victim’s thumbprint was present on the matchbook found at the scene, but that merely added to investigators’ theory that his pockets were emptied during a robbery. 

The blood staining Pease’s shirt proved to be his own. And the pot-growing operation was his mother’s.

Roberts’ 1992 Dodge Shadow hatchback fit the general dimensions of the skid marks. But so did dozens of similar-sized cars. Photos of the skid marks lacked detail matching his car’s tires.

The Ruger .357 Magnum pistol found in Roberts’ car bore no resemblance to the “real shiny silver” 9mm handgun Vent had allegedly flashed during an earlier reported assault at the �ֻ�ֱ��n Motor Inn. 

Fingerprints and fibers collected from the hatchback matched neither the suspects nor the victim. Nor was there any sign the car had been cleaned of evidence. “It actually had road grime all over it,” Pippin testified. “It was really dirty.” 

On the crime’s 10th anniversary last fall, Pippin reflected on his difficulties extracting evidence from Roberts’ messy car. “Out of every 100 things we fingerprint, all kinds of surfaces, we only get fingerprints that are usable on about 14 percent.

“And that’s in Anchorage,” he added. “In Fairbanks, it would be less.”

Roberts’ prints weren’t found in his car though he’d made several trips that night, ferrying friends around town.

People sweat less in this area’s dry climate, according to the evidence tech, who grew up in Fairbanks. That works against leaving prints. Drivers also tend to smudge or rub off more prints than they leave. The crime’s timing, on a chilly October night, also introduces the possibility that the four wore gloves, Pippin pointed out.

“Nowadays,” he said, “instead of even trying to fingerprint that steering wheel, we would take swabs of it to look for DNA. Because if you scrape off any skin cells with the steering wheel or any sharp objects, you have a lot better chance of DNA than you do fingerprints.”

That Friday marked Roberts’ second day home from an extended hunting trip. And he’d been away most of the summer fighting wildfires in a village crew.

The hatchback remained in town with Art Mayo, his stepdad.

Mayo owned the pistol found in the car. He had packed it with him on a summer road trip to Manley, the scene of a notorious shootout years before. “I forgot it was in there,” he said last summer.

 

Left out of the lab reports

In a career change, Fallico began part-time work study at the medical examiner’s office

in spring 1997. The pathologist lacked formal training in criminal forensics but brought 20 years experience performing medical autopsies at Providence Hospital. The Hartman case marked his first major homicide assignment.

Discussing Hartman’s autopsy with grand jurors the week following the crime, Fallico said it yielded nothing identifying the number of assailants, specific footwear involved, or even the shoe sizes. “The bruising is generalized and suggests a pattern that in some areas might represent a wide tread pattern on the end of a boot or shoe,” he explained, “but that’s as far as I can go with it.”

Sixteen months later, the photo overlay put together by police inspired the doctor to go further. 

The exhibit’s half-dozen transparencies isolated portions of the tread impressions taken from Frese’s right-side, Kmart Northwest Territories boot. The transparency pages could be flipped aside, allowing for quick comparison with the victim’s photographed bruises. “�ֻ�ֱ�� Scientific Crime Detection Laboratory,” read the 6-inch ruler positioned alongside the tread impression spanning the overlay’s top, see-through layer.

The exhibit’s pedigree was less transparent.

Within days of the crime, police sent the state lab several pairs of boots and sneakers seized from the suspects. “Check shoe pattern to patterns on victim’s faces from photos taken,” police noted regarding Frese’s boots.

Criminalist Jim Wolfe, a state lab print expert, made tread imprints from the shoes and compared them with photos of the victim’s bruises. Early in that process, he and Fallico had a “brainstorming” discussion about the difficulties of what’s known as skin-mark analysis.

Reading bruises is far more complex than matching other kinds of prints, Wolfe explained in 2007. “When a boot leaves an impression in mud or blood or whatever,” he said, “what you see is kind of a direct reflection.”

With skin damaged through a blow, however, the bruise reflects not only the shape of the forceful object but also the “pinching effect” of underlying bones, fluids and tissue. “This is especially true on a face,” he said, pointing to the uneven resistance around cheek bones.

In the Hartman case, nothing persuaded him that a scientific comparison was possible.

“There were not enough characteristics to distinguish that this one boot made the marks,” Wolfe said in an earlier interview, “or even that it was an obvious boot print or pattern.”

He left that out of his lab reports.

That silence troubles Ron Singer, a Texas county crime lab director and past president of the American Academy of Forensic Science.

“If the evidence is actually sent to the lab, and worked as part of that case, a report should have been issued,” Singer commented last spring.

Wolfe, who now has a forensic science consulting service and teaches as a university adjunct, isn’t sure why he didn’t write up the attempted comparison. “This would have just been a group decision not to write that report,” he said. “It would have been me and my supervisor on that.”

Former lab boss Chris Beheim remembers discussing that boot-bruise comparison. He and Wolfe were particularly wary of drawing conclusions, he said, after hearing the complexities of skin-mark analysis discussed at a symposium not long before.

“Police frequently request things that we can’t do,” added Beheim, who’s now retired.

Back in Fairbanks, police and then-Assistant District Attorney Jeff O’Bryant constructed the overlay using one of Hartman’s hospital photos and a lab boot impression. The tread sections highlighted in the exhibit were taken from “evidence item No. 6,” Frese’s right boot. That belongs to the foot opposite the boot Kendrick and the nurse sized up against Hartman’s facial bruises at the hospital.

“My guys were trained well and knew how to collect evidence,” commented former Lt. Paul Keller, defending the exhibit’s construction in a recent e-mail. “They were very adept in making comparison photos for jury trial.

“Evidence comes in to play as it is,” added the retired detective who headed the initial steps of the Hartman investigation. “We don’t get to pick how it occurred, but we do our best to preserve and identify scientific evidence for potential trials.”

John Cayton, former chief criminologist at Missouri’s regional crime lab in Kansas City, testified as a paid expert for Frese. The victim’s bruises should have been photographed alongside a flexible ruler, he said, providing some means of evaluating skin distortion from his facial curve. And he contended either the boot or face photo was enlarged to make the exhibit work, an accusation court testimony left unsettled. 

“In 30-plus years, I can’t think of other trials where such techniques were used to convict a suspect,” he said in a 2003 interview.

 

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Lawmen shared the overlay with Fallico in February 1999, the weekend before he was due to testify in the first Hartman trial.

That Sunday, about 9 p.m., then-defense attorney Robert Downes got a call. The prosecutor advised him Fallico was going to testify about apparent similarities between Frese’s boot and the victim’s bruises.

“Talk about trial by ambush,” Downes declared in court the following day. He asked the judge to block the state’s expert from offering new conclusions.

Judge Niesje Steinkruger directed Fallico to limit his comments to apparent similarities in the general characteristics of the boot brand.

The trial transcript shows the prosecutor and doctor proceeded to analyze the exhibit in terms a layman might reasonably assume confirmed Frese left tell-tale marks on the victim.

“Here’s another (tread) lug coming down on an area,” prosecutor O’Bryant said, using the overlay prompting the doctor’s layer-by-layer dissection. “I’m going to lift that up again. Do you see an injury to the area underneath where that lug comes down?”

“Yes, I do,” Fallico said.

“And is the location of that injury consistent with the placement of that lug?”

“Yes, it is.”

The prosecutor gradually moved beyond generalities. “Does it appear possible that foot could have caused those injuries?”

“Yes, it does.”

O’Bryant continued. “And does it suggest something more than possible because of the individual injuries that appear with each separate lug that we’ve seen — or set of lugs that we’ve pointed out with these exhibits here?”

“I do note,” Fallico responded, “that some of the lugs have a sharp geometric outline, a border that is well defined. Whereas the same lugs will have other borders that are less well defined, suggesting wear.”

The latter suggest “individual characteristics,” he said.

“So, yeah,” the doctor concluded, “it, it appears that it could be, but I’m not 100 percent sure.”

Downes didn’t rise to object. “I sorta wanted them to go out on a limb, because I thought I could saw the limb out from under them,” the former defense attorney said last winter. “Obviously, I didn’t succeed.”

Former supervisor Dr. Norm Thompson describes Fallico as a competent, fair-minded medical examiner unlikely to twist science for either side. “You know,” he added, “the crime lab and the medical examiner’s office don’t always see eye to eye.”

Fallico later insisted the overlay passed his personal “smell test.” However, he maintained that 

he wasn’t fully informed about Wolfe’s inconclusive attempt at matching the boot to Hartman’s bruises, or the exhibit’s assembly outside the state lab. 

“You’re adding knowledge that those pictures were used by police to make the final exhibit,” Fallico said in 2007. “That part I was unaware.”

Challenges against the photo overlay figured in several appeals.

In 2004, the �ֻ�ֱ�� Court of Appeals rejected Frese’s argument that his attorney should have fought harder to prevent the exhibit from being used.

In 2002, the appeals court side-stepped Roberts’ challenge of the overlay’s reliability, observing that jurors in the final trial had heard enough about alleged defects to assess its merits. “To the extent that there was any error in admitting Exhibit D,” the court concluded, “that error was harmless.” 

 

Informants lend support

Within about two weeks of Hartman’s murder, police heard that one of the suspects, Kevin Pease, had made incriminating comments to another inmate at Fairbanks Correctional Center.

The informant, 22-year-old Angela Harman, was a close friend of the victim’s oldest brother, Chris “Sean” Kelly. She was present that Saturday evening, Oct. 11, 1997, when police notified the victim’s mother that her son was hospitalized and in a coma. Before the month was out, Harman landed in jail for a probation violation and sent word that she wanted to talk to detectives.

Harman, who had known Pease for years, told police she had confronted Kevin on her way back from lunch, demanding to know why he hurt the young teen. “We took the punk’s money,” the suspect told her, according to the report taken by Detective Aaron Ring.

In January 1998, police contacted three other Fairbanks Correctional Center inmates — Franklin Mueller, a 19-year-old held in connection with more than two dozen suspected car thefts; Joshua Bradshaw, a 16-year-old facing a felony sex assault charge; and Kelly, the victim’s 21-year-old brother, who had been arrested on warrants after a reckless driving stop. Each was asked if he had heard the suspects discussing Hartman’s murder.

Mueller and Bradshaw later described their encounters in court. Mueller testified that he had heard his “cellie,” Vent, talking about the crime in the weight room with Frese and Roberts.

Bradshaw, then 16, said he had heard Vent explain on several occasions that he hadn’t meant to kick Hartman. The intended target was the victim’s friend, Chris Stone, according to Bradshaw.

Kelly, the victim’s brother, was never called as a witness. According to his prison interview transcript, Kelly told police that Vent had apologized to him several times. “He was like, ‘I didn’t do nothing. It was the other guys that did it. I didn’t even wanna be there.’”

The victim’s brother recalled being disgusted. “I told him it didn’t matter to me or my family what he said. And that he was just as guilty as the rest of ‘em because he just stood there and watched.”

Pressed by detectives for Vent’s exact words, the context of those apologies and any jailhouse encounters with the other suspects, Kelly hedged. He had inferred, rather than heard Vent say the group killed his brother. He described what he took to be a suspicious glance from Pease, whom he had known since he was 13, had served time with as a juvenile and formerly considered a friend.

On the eve of the final trial in late July 1999, Detective James Geier noted a familiar name residing in the suspects’ prison dorm. John Heffle Sr., a 38-year-old roofer, had more than 40 largely petty, frequently alcohol-related, crimes on his rap sheet. Heffle soon recalled Pease making a brief remark about the murder.

“He said, ‘I was f------ up and it was bad,’ ” Heffle repeated from the witness stand later that same month.

Harman joined Heffle in describing terse, menacing jailhouse confidences from Pease.

All of those witnesses — Mueller, Bradshaw, Kelly, Harman and Heffle — provided what’s known as “snitch testimony.” Recent studies have shown that such testimony, whether false or not, commonly turns up in trials of people wrongly convicted.

A 2005 Northwestern University study of 111 people released from death row through DNA testing found 45 percent of the cases had featured false testimony from informants. Putting that in context, the next largest common factors discerned in that study were erroneous eyewitness identifications, which played a role in 25 percent of the cases, and false confessions, which figured 15 percent of the time.

Law professor Samuel Gross also flagged false informants as a major contributor in wrongful conviction cases in the broadest study to date, a 2005 University of Michigan review of 328 exonerations over a period of 15 years, roughly half of which resulted from DNA testing. “In at least 94 cases a civilian witness who did not claim to be directly involved in the crime committed perjury — usually a jailhouse snitch or another witness who stood to gain from the false testimony.”

One of the Hartman jailhouse informants had her veracity undermined through cross-examination.

At the varying times and dates Harman recalled having conversations with Pease, the murder suspect was being held apart from the prison’s general population. Their paths couldn’t have crossed where Harman described, a prison worker testified after reviewing the segregated prisoner logs.

Claims of the other three were left for jurors to sort out. 

The four informants called as witnesses in the various Hartman trials all said authorities hadn’t promised them anything for testifying. However, at least two received generous subsequent treatment in the courts; Mueller saw a case that arose from more than two dozen alleged car thefts reduced to two counts, and he was never prosecuted for an alleged assault an accomplice had described in court.

Bradshaw, who was initially charged with first-degree sex assault of a minor, eventually pleaded guilty to attempted sexual assault in the second degree. The judge found that he had penetrated a 5-year-old, “conduct among the most serious,” the May 1998 hearing notes state. As he imposed a sentence of seven years, suspending all but a third of that time, the judge cited a single mitigator: “assisting authorities.” As is typical, Bradshaw’s case file offers no details on that service.

Are some informants motivated by what they have to gain?

Keller, the city’s former chief detective, granted that may motivate some informants. Others step forward to do the right thing, he said, particularly in light of such a heinous crime. 

His experience also taught him that secrets are hard to keep. “Many defendants in my time have bragged about their crimes in jail,” he said, “and rued the day they did.”

 

No answers from science

Potential physical evidence collected in the crime’s aftermath yielded more questions than answers.

The justice system’s new standard of certainty — DNA evidence — had no direct application in the Hartman case. Police never found blood, tissue or hair connecting the victim with the group convicted. A cigarette butt from the crime scene was retested in 2003 but shed no new light on the case.

Ten years later, only one area of evidence in the case appears available for more advanced forensic examination—the boot imprints and those photographs of the victim’s bruises. Perhaps crime labs today might settle whether any of the suspects’ boots were involved in the murder.

Approached about the idea last spring, O’Bryant was dismissive.

“No need to,” the prosecutor said.

Hartman’s underwear was in place and blue corduroy trousers down around his ankles when he was found, medics noted. A hospital nurse subsequently detected anal tears and colon bruises consistent with a sex assault.

In his teleconference with grand jurors, Fallico vouched for the presence of those tears consistent with a sex assault. Yet his final written autopsy report mentioned only a faint circular bruise.

Cross-examined about the discrepancy, Fallico speculated that a lot healed before Hartman died. 

“On a dead body, a tear looks like a tear,” countered Dr. William Brady, a veteran forensic pathologist testifying as a paid defense expert in the final trial. He said the “blemish” more likely came from  the nurse’s probe.

Both Frese and Vent were convicted of sex assault. Jurors in that last trial acquitted Pease and Roberts of the same charge after Brady challenged Fallico’s conclusions.

Police didn’t know to ask Stone why Hartman was found wearing his friend’s pants.

More than a year passed before a former prosecutor tasked with defending Vent inspected the case evidence.

Holding up those baggy pants in the police evidence locker, Bill Murphree noticed they were sized for a much larger waist. He pictured how they might slip on, say, a lean kid running for his life. 

What else, he wondered, did Stone leave out of his story?

 

Tomorrow:

 

Brian O’Donoghue is a UAF assistant professor of journalism. Former students Jade Frank, Gary Moore and Frank Shepherd contributed to this story.