Civil Damages Awarded in Forensic Fraud Case

It has been a long road for David Kofoed, the now disgraced former Douglas County (Nebraska) Crime Scene Investigation chief. 

In the beginning, he had the support and protection of his boss, peers and co-workers. But in the end the truth was made clear: David Kofoed had planted evidence and given false testimony to help put innocent people in jail in multiple cases.

The headlines tell part of the story: 

• Sept. 11, 2009 - "State tampering case awaits acquitted CSI chief"

• Nov. 2, 2009 - "CSI chief pleads not guilty to state charge"

• March 23, 2010 - "CSI chief Kofoed convicted of evidence tampering"

• June 1, 2010 - "Ex-CSI chief sentenced to prison for planting blood evidence in Neb. double-murder case"

Kofoed also failed in his appeals, as described in Ferak (2012):

______

The case of David Kofoed was featured in the
textbook Forensic Fraud: Evaluating Law
 Enforcement and Forensic Science Cultures in
the Context of Examiner Misconduct 
(Elsevier Science, 2013)  

The high court said in the ruling released Friday that Kofoed's appeal lacked merit. 

“Throughout this prosecution, Kofoed's defense strategy has been an attempt to deflect evidence of his guilt by floating theories of a mystery perpetrator or careless investigators,” Judge William Connolly wrote for the court in affirming Kofoed's conviction. “At the (pretrial) hearing, at trial and on appeal, he has claimed that someone else could have tampered with the evidence to frame him.

“The irony of his defense is rich, and his theories plentiful, but there is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts. The court did not err in overruling Kofoed's motion for a new trial.”

In March 2010, Cass County District Judge Randall Rehmeier found Kofoed guilty of planting blood evidence during the investigation into the 2006 slayings of Murdock farmers Wayne and Sharmon Stock. 

The high court rejected Kofoed's contention that Wayne Stock's blood was found in a wrongly suspected getaway car through accidental contamination. 

At the trial, Rehmeier also allowed special prosecutor Clarence Mock to present evidence involving the 2003 murder of 4-year-old Brendan Gonzalez of Plattsmouth. 

In the Plattsmouth case, Kofoed had produced a perfect DNA sample of the child's blood from inside a Bellevue trash bin five months after the boy's father supposedly put his body there. 

The Cass County judge concluded it defied scientific logic for Kofoed to produce a perfect DNA sample of the boy's blood, given the exposure to the elements for five months.

Special prosecutor Clarence Mock said he was pleased the high court rejected Kofoed's appeal. 

“The Supreme Court totally destroyed any lingering doubts about his guilt,” Mock said. “Their analysis was extraordinary. They just totally eliminated any basis for anyone to continue to believe that Dave Kofoed was innocent.” 

Mock said the ruling finally brings the case to a close.

“It closes a sad chapter in Nebraska law enforcement history,” Mock said. 

“In many respects, his conviction led to a new start for the Douglas County crime scene investigations, and this case serves as a reminder to everyone — all members of law enforcement — that we depend upon their integrity in the prosecution of criminal cases.” 
______

Now there civil damages on the record, holding Kofoed responsible for the damage he caused in a big way, as explained in Winchester (2014):

______
Two Nebraska men who have been awarded a nearly $6.5 million judgment in a civil rights case over evidence-planting could have trouble collecting the money.

A federal judge this week ordered David Kofoed, the disgraced former Douglas County CSI chief, to pay $4.35 million in damages, costs and attorneys fees to Matthew Livers and $2.14 million to Livers’ cousin Nick Sampson.Sampson and Livers were wrongly jailed for several months after the 2006 shotgun murders of Livers’ aunt and uncle, Wayne and Sharmon Stock of Murdock, Neb.

But Kofoed, who was convicted of felony evidence tampering, says that the years of legal wrangling have cleaned him out and that he has no assets to seize or wages to garnishee.

Douglas County taxpayers won’t be on the hook to pay the judgment — Livers and Sampson settled their claims against the county last fall. But the terms of that settlement leave the county’s liability carrier exposed.

Two Wisconsin teenagers, Gregory Fester and Jessica Reid, later pleaded guilty to the murders and were given life sentences.

Kofoed, who processed the evidence at the scene, served prison time for planting blood specks in a supposed getaway car belonging to Sampson’s brother.

Typically, the first step in enforcing such a judgment is an examination to determine the debtor’s finances, including any wages eligible for garnisheeing, said John Lenich, a law professor at the University of Nebraska-­Lincoln.

The rules differ by state, but usually some earnings are protected to ensure that the debtor has enough money to live on, Lenich said. Assuming Kofoed has no assets to seize, it’s unlikely Sampson and Livers would get any money from him.

“Sometimes what you end up with is a very impressive piece of paper saying you’re owed a very impressive amount of money,” Lenich said.

As long as the judgment is periodically renewed, though, Sampson and Livers could lay claim to Kofoed’s future earnings.

“There’s always the chance he could hit the lottery,” Lenich said.

Another possibility: Try to collect from Douglas County’s liability carrier, Travelers Insurance. The county was released from liability, but not the county’s insurers, “to the extent those insurers may be deemed responsible for payment of a judgment against Kofoed,” according to the settlement reached last fall. 

In an email, Sampson’s lawyer, Maren Chaloupka, indicated that she might take that route.

______

This is important because forensic experts, specifically those found to have committed any of the various forms of forensic fraud, are generally not held to account for their misconduct. This is particularly true when they work for law enforcement agencies. Professionally organizations do not usually expel them, the police do not usually arrest them, and the courts do not usually find them in contempt or charge with with related criminal violations. The only recourse left to defendants harmed by such forensic experts is civil court.

This forensic examiner is therefore not only pleased with the continued outcome of this case, but also encouraged. The demise of David Kofoed will serve as a stern warning to forensic up-and-comers about the consequences of false testimony, evidence fabrication, and other forms of forensic fraud.  However, that will require awareness on the part of forensic science instructors, and a willingness to discuss the reality of forensic fraud with their students.

This forensic examiner is not convinced that forensic fraud is something that most criminal justice instructors are comfortable discussing in the classroom, if only for their own professional denial and confusion. But we may get there yet.

Ethical Justice: A Map to the Minefield

Ethical Justice (Elsevier, 2013)
by Crowder & Turvey

The criminal justice system is a minefield of ethical dilemmas for those who work in it. Whether a police officer, a lawyer, a judge, or a forensic scientist, the CJ professional is going to get jammed up. Likely this will happen multiple times in their career - arising from unpredictable interactions with 
employers, co-workers, colleagues, the public, and the court.

Ethical Justice (2013, Elsevier Science; edited by Stan Crowder & Brent Turvey) was developed from an idiom shared by the authors and contributors alike: ethics and ethical challenges are generally black and white - not gray. They are akin to the pregnant woman or the gunshot victim; one cannot be a little pregnant or a little shot. "If you hear a colleague talking about ethical gray areas, that's a big red a flag," says Brent Turvey, a co-editor, forensic expert, and adjunct professor of Sociology and Justice Studies at Oklahoma City University. "Usually this means they are concerned about something they are doing, or that a friend is doing - something they know is beyond the ethical pale. Professional conduct is either ethical or it is not." 

Turvey & Crowder, 2010

Unafraid to be the harbingers of unwelcome news, Turvey and Crowder set forth the parameters of key ethical issues across the five pillars of the criminal justice system: law enforcement, corrections, courts, forensic science, and academia. Ethical Justice demonstrates how each pillar is dependent upon its professional membership, and also upon those within the other pillars - with respect to both character and culture.

Breakdown

With contributions from case-working experts across the CJ spectrum, this text reveals hard-earned insights into issues that are often absent from textbooks born out of just theory and research. 

Part 1 examines ethic issues in academia, with chapters on ethics for CJ students, CJ educators, and ethics in CJ research. 

Part 2 examines ethical issues in law enforcement, with separate chapters on law enforcement administration and criminal investigations. 

Craig Cooley, formerly a staff attorney with the
Innocence Project in New York City, contributed
to the chapter: "Ethical Issues for Defense Attorneys".

Part 3 examines ethical issues in the forensic services, considering the separate roles of crime lab administration and evidence examination. 

Part 4 examines ethical issues in the courts, with chapters discussing the prosecution, the defense, and the judiciary. 

Part 5 examines ethical issues in corrections, separately considering corrections staff and treatment staff in a forensic setting. 

The text concludes with Part 6, which examines ethical issues in a broad professional sense with respect to professional organizations and whistleblowers.

The Problem
Unfortunately, many criminal justice programs do not adequately prepare their students to identify and navigate these professional land mines. The problem is generally one of the following: 

- The required ethics subject is taught by someone in the philosophy department, based on theory unnrelated to real life CJ issues;

- The required ethics subject is taught by a CJ instructor that has not worked in the CJ system, and therefore lacks insight into actual ethical dilemmas that students and professionals will eventually face once they get a job;

- There is no required ethics subject for CJ students.

"Unless you work in the criminal justice system, you might not take professional ethics very seriously, or you might misunderstand them entirely" explains contributor Shawn Mikulay, a Professor of Psychology at Elgin Community College in Illinois. "You might even think that getting a job, not getting fired, and being promoted equate to maintaining good and ethical behavior. This is not the case. Bad acts and bad choices will eventually catch up with you."

Co-editor Stan Crowder agrees. He is a retired U.S. Army Military Police Colonel, and a CJ Professor at Kennesaw State University in Georgia. "None of the books we considered using for our ethics subject really had what we wanted," says Crowder. "They were all too theoretical, and didn't help students understand what they needed to do, right now, to protect themselves and their reputations. And they didn't offer an understanding of the real world dilemmas that are always coming at you. So we decided to write our own text, based on good research tempered by collective experience. We also used lots of case studies to show real world consequences."

Trustworthy Character & Disqualifiers
One major issue is the trustworthy character requirement. Students hoping for employment in the justice system must be able to achieve and maintain the trust of the court in order to be allowed the privilege of providing sworn reports and testimony. They must also understand that there is no branch of the criminal justice system where this requirement can be avoided, as every task performed is ultimately done in service of, and under the scrutiny of, an agent of the court. This remains true whether tasks relate to the investigation of a criminal charge, the examination of evidence, the administration of a legal proceeding, or the execution of a sentence.

One of the many case studies in the text: Officer Bert Lopez 

of the New Mexico State Police was fired in 2011 for 

conduct unbecoming an officer, including having sex 

in public, while on duty, and wearing his uniform.

As a result of this trustworthy character requirement, consideration of a professional life in criminal justice work begins at the student level. CJ employers carefully screen the background of all applicants and candidates for what may be referred to as employment disqualifiers. Disqualifiers are past and present activities or affiliations that evidence, or even appear to evidence, criminality, a propensity for dishonesty, or poor character. They include:

• Illegal drug use.
• Abuse of prescription medications.
• Alcohol abuse.
• Gambling addictions.
• Criminal arrests and convictions.
• Commission of undetected crimes.
• Extensive history of traffic violations.
• Gang affiliations.
• Affiliations with known criminals.
• Mental disorders.
• Pervasive financial problems.
• Falsification of any of the above.
• Failure to disclose any of the above.
• Failure of a pre-employment polygraph examination.

The importance of a particular disqualifier with respect to employability varies from agency to agency. That is to say, there is latitude afforded by some agencies – especially when the pool of viable candidates is limited by geography and pay scales. This is not necessarily a good thing: the more professional the government agency and the higher the security clearances of its operational employees, the less likely they are to overlook the disqualifiers mentioned. The opposite is also true.

Ethical Educators and Mentors
In Ethical Justice, the authors further take the position that criminal justice educators comprise an additionally and vital pillar of the criminal justice system. That is to say, there exists a responsibility on the part of criminal justice educators with respect to ethics. Not every student that enters and completes a given CJ program can necessarily survive the employment screening process that will eventually confront them. All students must be made aware of this reality. 

Students that can successfully hurdle the hiring process must also be professionally groomed, both socially and ethically, to understand the weight and consequences of the work that they will be required to do. To meet these responsibilities,
criminal justice educators must be knowledgeable and up front with their students regarding the importance of having, developing, and maintaining ethical character throughout the direction of their professional lives. They must know the direction of true North on their own professional ethical compass, and be capable of guiding their students towards it in both word and deed. 

While criminal justice educators have an obligation to understand and model professional ethical behavior, many are marginal at best. In fact, many educators confuse their personal moral values with what are meant to be professional
ethics while failing to understand the differences between them. As a consequence, they are often incapable of modeling professional ethical behavior.

This is certainly transmitted to their students. When this
happens, students can graduate having accumulated any number of employment disqualifiers without knowing it and without the real-world tools to navigate the complex ethical landscape that awaits them.

Summary

Ethical Justice: Applied Issues for Criminal Justice Students and Professionals is intended for use as a textbook at the college and university, by undergraduate students enrolled in a program related to any of the CJ professions. It is intended to guide them through the real-world issues that they will encounter in both the classroom and in the professional community. However, it can also serve as an important reference manual for the CJ professional that may work in a community that lacks ethical mentoring or leadership.

Herb MacDonnell, Founder of Bloodstain Institute, Convicted...

Dr. Herbert L. MacDonell

Herbert L. MacDonnell is perhaps best known in the forensic science community as the founder of the Bloodstain Evidence Institute, which has been training law enforcement investigators and forensic scientists since 1973. The general public may also recognize his name from expert testimony given in the O.J. Simpson murder trial. Whichever the case, 84 year old Herb MacDonell has a storied career that spans six decades.

However, in the third week of December 2012, Dr. MacDonell was arrested. According to Hicks (2012):

New York State Police say 84-year-old Herbert MacDonell had inappropriate pictures of an 11 year old girl at his home.

Troopers began investigating MacDonell after a report called into the state Child Abuse Hotline concerning his behavior while photographing the girl.

Dr. MacDonell's mugshot

Subsequent to this initial arrest, Dr. MacDonell* was arrested later that same week for charges related to a second victim. A student who attended the Bloodstain Institute at his home, she was afraid to come forward at first, as reported in Zick (2012):

The second alleged victim said MacDonell subjected her to sexual contact, exposed his penis and threatened to disclose personal health information about her that he claimed to have obtained through forensic analysis of an item she had discarded in a trash can, according to New York State Police in Painted Post.

The alleged abuse occurred while the 16-year-old girl was attending a forensics seminar over the summer at MacDonell’s Davis Road home in the Town of Corning.

The girl, who does not live locally, reported the alleged incident after MacDonell was arrested Tuesday on separate charges. She told police she had been afraid to disclose the alleged abuse because of MacDonell’s close association to the legal profession.

MacDonell was charged with forcible touching, exposure of person, second-degree harassment and endangering the welfare of a child. He was issued an appearance ticket.

Also, police have filed an additional charge - second-degree sexual abuse - against MacDonell in connection with the first alleged victim, an 11-year-old girl. MacDonell is accused of sexually abusing the girl and taking inappropriate photos of her at his residence.

In July of 2013, Dr. MacDonell plead guilty to reduced charges in order to avoid a trial and possible convictions for more serious offenses. As reported in Zick (2013), Dr. MacDonell:

...will serve three years of probation in connection with allegations he acted sexually inappropriate with two young girls.

In addition to probation, MacDonell is forbidden from having contact with the two girls, and he is prohibited from being alone with children under the age of 18. The conditions of his sentence were part of a plea agreement with prosecutors.

MacDonell was sentenced after he pleaded guilty in Corning Town Court to two counts of second-degree aggravated harassment, a misdemeanor. Originally, he was charged with second-degree sexual abuse, forcible touching, exposure of person, second-degree harassment and two counts of endangering the welfare of a child.

In addition, he was ordered to pay related fines, and orders of protection were issued for both victims.

This case involves apparent forensic fraud as Dr. MacDonell threatened to disseminate false information (based on a non-existent forensic test) about the second victim using his position of trust and authority as a forensic scientist.

The allegations, charges, and reports in this case indicate behavior by Dr. MacDonell that is utterly unacceptable in any professional context. This to say nothing of ultimately being found criminal. However, the final plea deals that he was given seem inappropriate. In other words, the penalties invoked do not appear to fit the crimes. 

One is left to wonder whether Dr. MacDonell's status in the forensic science community, his advanced age, and his lack of prior convictions may have played a role in the deals that he was given. Certainly there are others that have done less, that have been subsequently labelled "sexual predator", and that have served actual jail time. In addition, there seems to be little emphasis on a search for other potential victims, which seems warranted.

In any case, Dr. MacDonell's lengthy career as a forensic expert should be at an end with these convictions, given the trustworthy character requirement that courtroom testimony necessitates. He abused his position of trust and authority as a forensic educator, and he successfully intimidated a witness against him for several months. Moreover, his multiple convictions demonstrate that he can no longer be trusted to navigate the line between ethical and unethical behavior, let alone that which is overtly criminal.

However, only time will tell.

*(Note: According to his bio:"Herbert MacDonell holds a master of science degree in chemistry and an honorary doctor of science degree from the University of Rhode Island.")


Brent E. Turvey, MS - Forensic Science; PhD - Criminology

Author of:

Turvey, B. (2011) Criminal Profiling, 4th Ed., London: Elsevier Science

Turvey B. (2013) Forensic Fraud, San Diego: Elsevier Science

Savino, J. & Turvey, B. (2011) Rape Investigation Handbook, 2nd Ed., San Diego: Elsevier Science

Forensic Fraud: Evaluating Law Enforcement and Forensic Science Cultures in the Context of Examiner Misconduct

Excerpt from Forensic Fraud: Evaluating Law Enforcement and Forensic Science Cultures in the Context of Examiner Misconduct, by Brent E. Turvey, PhD.

This textbook presents original research that examines and correlates the traits of fraudulent forensic examiners, their fraud-related activity, and their places of employment.1 To ensure timeliness and provide for comparability, this research is limited in scope to those cases revealed in the United States from 2000 to 2010. It is a study that seeks to inform and add to our theoretical understanding of a specific yet influential strain of employee fraud in the criminal justice system. Based on the findings of this study, potential causal factors are identified and discussed. Subsequently, relevant fraud management strategies are proposed.

BACKGROUND

The events that have accumulated over the course of this author’s career to confirm the need for this work, and to provide sufficient motivation for its completion, are numerous and ongoing. 

The earliest took place immediately after the completion of this author’s graduate studies in forensic science in 1995: a research paper that had been placed online was taken in its entirety and presented elsewhere under the name of another. Upon discovery and further investigation, it was learned that the person responsible, a forensic psychologist, was no stranger to fraud. Then the Chair of the Forensic Science program at National University in San Diego, California, it was learned that the plagiarist had purloined the research of others in at least one Canadian journal. He had also been accused of misrepresenting the nature of his relationship with the Orange County Coroner’s Office by means of printing up misleading business cards. Further still, his professional resume was full of incomplete and misleading information and affiliations.

Ultimately, and subsequent to a complaint filed by this researcher, this individual was forced to resign his membership with the American Academy of Forensic Sciences, and contemporaneously ceased to be the Chair of the Forensic Science program at National University. That someone would do these things so openly, let alone a professional of apparent high standing in the forensic science community, and that nobody had complained about it in writing save a recently graduated student of forensic science, left an impression.

Over the past 17 years of forensic practice, this author has observed or learned of countless instances of unrepentant forensic fraud by practitioners from all over the United States, and around the world. A severe outcome, with proven fraudsters stripped of their employment, penalized by their respective professional organizations, and criminally charged is not at all typical. Often fraud is minimized, ignored, or in extreme cases simply denied by those in the forensic science community. 

For example, Budowle (2007), speaking for the FBI crime laboratory, insists that “most people do good jobs,” that forensic fraud is not a significant issue, and that any problems are “most often human error”; Collins and Jarvis (2007), speaking for an organization formed by those associated with the American Society of Crime Lab Directors Laboratory Accreditation Board (ASCLD-LAB), similarly assert that “Forensic scientists are human beings. As such they will sometimes make mistakes and, in some very rare instances, push the boundaries of ethical behavior”; and, in response to multiple and ongoing scandals involving examiner fraud since 2005 at the U.S. Army Criminal Investigation Laboratory (USACIL), the Army’s Criminal Investigation Command, which oversees the lab, has conceded only that “As with all crime labs across the county, human error does occur from time to time” (Taylor and Doyle)—in essence ignoring the issue of fraud altogether.

Many leaders in the forensic science community, it seems, are content to explain fraudulent examiners away, or deny their existence, despite continuous and sometimes overwhelming evidence of the problem...

Different from that of many forensic science stakeholders, this author’s perspective has been enhanced by at least the following major events in the forensic science community over the past ten years:


1. The ongoing and in some cases repeated instances of major crime lab scandal, to include multiple instances of fraud and error, over the past 15 years (see general discussions in Cooley, 2004, 2007a, and 2007b; DiFonzo, 2005; DiFonzo and Stern, 2007; Giannelli, 2010; and Thompson, 2009).


2. The publication of the National Academy of Sciences Report on forensic science (aka the NAS Report; Edwards and Gotsonis, 2009). The NAS Report was a congressionally funded system-wide investigation and review of the forensic science disciplines and related forensic laboratory practice. It was initiated by the United States Congress owing to the publication of an ongoing series of critical legal reviews regarding the evident bias and lack of science in forensic practice; the ongoing occurrence of highly publicized forensic frauds, blunders, and forensic laboratory scandals across the United States; and the ever-increasing number of DNA exonerations sourced back to flawed or misleading forensic evidence documented by groups such as the Innocence Project (see http://www.innocenceproject.org; see also Garrett, 2008; and Garrett and Neufeld, 2009). 

The NAS Report confirmed the lack of scientific foundation for the majority of forensic science methods, and an inappropriate alignment between forensic scientists and their law enforcement employers. It also recognized the lack of empirical research into the nature and causes of forensic fraud and error.


3. The publication of Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009 by the Northern California Innocence Project (Ridolphi and Possley, 2010). This landmark study of the largest criminal justice system in the United States (California) found prosecutorial misconduct more common than previously thought, including that related to suppressing or misrepresenting physical evidence. It also found that when harmful misconduct does occur (p. 3) “those empowered to address the problem—California state and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.” This is clearly related to, and not surprisingly similar to, the problems faced in the forensic science community regarding forensic fraud.


These experiences and events, augmented by ongoing myriad professional encounters with fraudulent examiners as part of regular casework, have provided a durable source of motivation for this work.


Brent E. Turvey, MS - Forensic Science; PhD - Criminology

Turvey, B. (2011) Criminal Profiling, 4th Ed., London: Elsevier Science

Turvey B. (2013) Forensic Fraud, San Diego: Elsevier Science

Savino, J. & Turvey, B. (2011) Rape Investigation Handbook, 2nd Ed., San Diego: Elsevier Science

Mendocino/Lake County Medical Examiner: Forensic Fraud, Error, or Negligence?

As a practicing forensic scientist who testifies in court under oath and submits to the crucible of cross-examination, the author has great sympathy for other professionals that are willing to do the same. For instance, in a courtroom, it is easy for just about any facts, statements, and opinions to be savaged from their context by attorneys and painted to support multiple legal theories. Or they can simply be misunderstood and misrepresented. All of this while a forensic expert is required to sit silently and waits their turn to explain, if that moment comes at all. 

This is not what happened in the case of California v. Timothy S. Elliott.

Timothy S. Elliott - Mugshot.com

In 2010, Timothy Elliott was convicted of 2nd Degree murder for the stabbing death of Samuel Billy. As reported in the Mendocino County District Attorney's Newsletter (Issue 11, 2010):

After 6 days of trial, the jury returned a guilty verdict on a charge of Second Degree Murder against Timothy Elliott. The jury also found Elliott personally used a knife in the commission of the murder.

Elliott encountered the victim, Samuel Billy, during a party at Shanel Drive on the Hopland Rancheria during the early morning hours of September 26, 2008. After an earlier fight involving Elliott and other subjects, Elliott and Billy engaged in an altercation during which Elliott was observed delivering a blow to Billy’s abdomen. Billy staggered off a few feet and collapsed in the parking lot with an apparent stab wound. Elliott fled the scene. After the stabbing Elliott arrived at the home of an acquaintance where he changed into some dirty clothes belonging to the acquaintance, leaving behind his own clothing and a knife. After police and medical personnel arrived Billy was flown to Santa Rosa Memorial Hospital where he died of the stab wound after emergency surgery.

Elliott will be sentenced on October 08, 2010. He faces a sentence of 16 years to life. Elliott was prosecuted by Deputy District Attorney Raymond Killion. 

In September of 2012, Mr. Elliott filed a writ of habeus corpus for a new trial based on evidence of ineffective assistance of counsel related to the forensic evidence, and the testimony of Dr. Jason Trent - the forensic pathologist for Mendocino and Lake counties. He was subsequently granted a hearing in June of 2013, as reported in Revelle (2013):

Elliott is due in court June 21 for a hearing to decide whether Public Defender Linda Thompson, who defended him at trial, erred in failing to ask for a hearing outside the jury's presence to exclude the 1.65-inch knife the doctor testified could have been used to inflict the fatal, 6-inch stab wound in Billy's abdomen.

"At trial, I was asked for my opinion of fellow pathologist Dr. Terri Haddix's conclusion that the knife in evidence could not, when fully inserted, inflict a six-inch deep wound," according to an April 7, 2012 declaration from Dr. Jason Trent, the pathologist who performed the autopsy on Billy.

"I testified to my belief that her conclusion was incorrect. My opinion was based, as I stated at trial, on the knife blade measuring between three to four inches long."

Trent's declaration goes on to say appellate attorney Shannon Chase asked him to review his records and Haddix's report, including a photograph of the knife in question, showing it was shorter than he had thought during trial.

"Based on this information, I am not absolutely able to conclude whether this knife could have caused a six-inch deep wound," Trent's declaration says. "If I was told at trial that the knife blade was 1.65 inches long, I probably would have testified that this knife could not cause a six-inch deep wound."

"However," he continues, "keep in mind that the victim is dressed, is overweight and the blade strikes no object other than soft tissue."

In a more concise declaration dated Sept. 8, 2012, Trent states, "If presented with the correct measurements, those being a knife blade measuring 1.65 inches and a wound 6.7 inches deep, I would not disagree with Dr. Haddix's conclusion."


During the hearing, which was held on Friday, June 21 of 2013, both Elliott's public defender and Dr. Trent suffered severe criticism. As reported in Meadows (2013):

The Mendocino County medical examiner's credibility was called into serious question and the Mendocino County public defender was put on the stand over the possible bungling of a murder case, in an unusual all-day hearing in county Superior Court Friday.

...at a hearing before Superior Court Judge Ann Moorman on Friday, Trent, who serves as the forensic pathologist for Mendocino and Lake counties, under questioning from Mendocino County Deputy District Attorney Paul Sequeira, said the knife in evidence, even though it measured 1.65 inches long, could have been the weapon that drove the 6.7-inch stab would into Billy.

A jury in August 2010 convicted Elliott of second-degree murder in the stabbing of Billy, 29, also of Hopland. The men, both members of the Hopland Band of Pomo Indians, allegedly fought at a party on tribal land early on the morning of Sept. 26, the Mendocino County District Attorney's Office stated previously. Elliott was reportedly seen delivering a blow to Billy's abdomen, and Billy staggered a few feet and collapsed in the parking lot with a stab wound. The only witness was a young boy who said he saw the crime out his window. The defense tried to discredit the boy, noting his family were friends of the victim and that the night was very dark.

In the morning, Trent was asked over and over about his inconsistent testimony. In his written change of heart in April 2012 (and again in September of 2012) he agreed with the defense's expert witness that the knife in evidence could not have made the stab wound.

"At trial, I was asked for my opinion of fellow pathologist Dr. Terri Haddix's conclusion that the knife in evidence could not, when fully inserted, inflict a six-inch deep wound," read the declaration from Trent, who performed the autopsy on Billy. "I testified to my belief that her conclusion was incorrect. My opinion was based, as I stated at trial, on the knife blade measuring between three to four inches long."

However, on Friday he said, "Indeed I do," when asked by Sequeira if, knowing absolutely that the knife in question was 1.65 inches long, he still believed that knife could have been the knife that caused the fatal wound.

Sequeira went to lengths - bringing out a standard wooden 12-inch ruler - to display to Trent the difference between a 3- or 3.5-inch knife blade and a 6.7-inch wound and the difference between a 1.65-inch blade to 6.7 inches. Nonetheless, Trent said he "absolutely" still believed that with enough force, the smaller blade could still do the damage.

Trent said it was important to remember that the blade in evidence had exactly the same blunt and sharp sides which matched the wound itself. He also said that the victim was somewhat overweight and that if pushed with force through soft tissue, the smaller knife was capable of inflicting the fatal wound.

Earlier in the day, Mendocino County Sheriff's Detective Andrew Whitaker testified that back in September of 2008 he had chatted with Trent about the knife in his office when the knife was on the detective's desk being photographed. At that time, Whitaker said, he and Trent discussed the relatively short blade, but not specifics and Trent said informally that he thought it could be the weapon. Because of that informal opinion, Whitaker said, he sent the knife - which had been turned over to authorities weeks after the stabbing incident - to the state Department of Justice for forensic testing, something he said he would not otherwise have done.

Elliott's court-appointed private attorney Jan Cole-Wilson on Friday asked Trent over and over how he could be so inconsistent.

"I was wrong; I don't know what else to tell you," he kept saying about the two sworn declarations he made in 2012 about the knife. He also could not remember most of what Cole-Wilson wanted to know, such as when he first saw the knife, if he saw the knife before the trial, what he testified to during trial.

She pointed out - and Trent agreed - that making serious mistakes in criminal trials could cost him his job. But when she implied that he was changing his testimony now for the benefit of the District Attorney's Office, he denied it.

"That's what I swore to, that's what I signed, but I was wrong," he said again, about recanting his trial testimony.

After hearing testimony all day, Superior Court Judge Ann Moorman scheduled another hearing for August. She also made it clear that she her ruling would involve findings regarding Dr. Trent's testimony, as  reported in Meadows (2013):

"I intend to make some findings about Dr. Trent's credibility," she said. She noted that "under penalty of perjury" Dr. Trent had twice recanted his trial testimony and then "came to court today and under penalty of perjury gave equally emphatic testimony that his other sworn testimony was wrong.

"Dr. Trent's credibility is damaged," she concluded.

The reality is that Dr. Trent gave a forensic opinion (i.e., one that he felt was certain enough for court, to give under oath). He opined with certainty whether a particular knife could have caused a particular injury without examining the knife at all. On it's face, this practice seems professionally indefensible - violating even the most basic notions of wound pattern analysis.

What's worse, Dr. Trent did not seem interested in defending his admitted negligence. He almost seemed to think it was no big deal. To say nothing of not seeming to be too bothered by the fact that he twisted himself into a pretzel to give, and retract, multiple conflicting forensic opinions. 

Hopefully, this August, Judge Moorman will render a decision that appropriately accounts for Dr. Trent's actions, and those of his defense attorney, that best serves justice. This will give both of the counties that he serves the impetus needed to review his past cases for similar errors, as well as possibly consider the necessity of retaining someone that is not quite so cavalier with their forensic opinions.

Brent E. Turvey, MS - Forensic Science; PhD - Criminology

Author of:

Turvey, B. (2011) Criminal Profiling, 4th Ed., London: Elsevier Science

Turvey B. (2013) Forensic Fraud, San Diego: Elsevier Science
http://forensicfraud.blogspot.com

Savino, J. & Turvey, B. (2011) Rape Investigation Handbook, 2nd Ed., San Diego: Elsevier Science
http://forensicvictimology.blogspot.com/