SELECTIVE "SCIENTIFIC" EVIDENCE IN NORTH CAROLINA

Scientific advances in fighting crime make forensic evidence the stuff of television dramas. A single hair can identify a killer. A fingerprint can prove that one witness is lying, the other telling the truth. DNA, preserved for years in drops of dried blood or even a stray skin cell can solve cold cases that once left investigators stumped.

Darryl Hunt won his freedom two years ago after DNA correctly identified another man as the person who had stabbed Deborah Sykes to death in Winston-Salem, a crime for which Hunt spent 18 years in prison.

In the messy world of crime and justice, scientific evidence stands out as pure, objective fact - so much so that prosecutors complain that jurors, schooled in justice by CSI and other shows, often won't convict without it. If the DNA matches, it must be so. But there's a story in forensic science that you won't see on CSI. It's the episode in which the scientists get it wrong.

The Winston-Salem Journal decided to examine forensic science in North Carolina because of the large number of wrongful convictions across the country caused by flaws in forensics or its misapplication. The newspaper tracked North Carolina cases with questionable forensic evidence. The focus was on capital cases - in which the stakes and expectation of certainty are highest. They show how in North Carolina, as in other states across the country, prosecutors have portrayed evidence as scientifically grounded and put prisoners on death row or locked them away for life in spite of disputes over the veracity of that science. Just as significantly, the cases show how errors and omissions in the use of science can undermine chances for successful prosecution.

The Penland case

Take the 1994 trial in Stokes County of Rex Penland, charged in the rape and killing of a Winston-Salem prostitute. Penland said he was passed out drunk in his pickup when Vernice Alford was stabbed to death, but the physical evidence presented at trial supported testimony by his nephews - twin brothers named Larry and Gary Sapp. They said that Penland raped Alford and had them tie her to a tree. The twins then waited in the truck, they said, and he soon returned with a bloody hunting knife and bragged of "icing" her. A deputy and an agent with the State Bureau of Investigation testified that a footprint at the scene matched Penland's snakeskin cowboy boots. With the footprint and the knife on their side, not to mention the Sapps' testimony, prosecutors won a murder conviction and a death sentence.

Now, 11 years later, the science is on Penland's side. A report by the state crime lab shows that there was no scientific evidence that the footprint matched Penland's boots. And new DNA evidence shows that the semen collected in the case wasn't his. As for the blood on his knife, the DNA doesn't match Alford's DNA. Instead, the partial DNA profile matches Penland's, who testified that he cut himself skinning a deer a few days before Alford's murder. The new evidence may not prove innocence, but it was enough for a judge last month to grant Penland a new trial. "What the science today shows is that the jurors were presented with facts and evidence that we now know were not true," Steve Royster, one of Penland's attorneys, said at his hearing.

More on the Penland case

A night of violence: Vernice Alford left her mother's apartment on Conley Street about 4 p.m. on Nov. 30, 1992. She told her mother that she would be home that night because the next morning she was expected at workat the convention center, where she was a waitress. Alford, 29, had a second job. She was a prostitute. That night, Penland and his 18-year-old nephews drove from King to Winston-Salem in Penland's green Chevrolet pickup. According to the Sapp brothers' testimony, they picked up Alford on Patterson Avenue and headed north to Payne Road, which winds through the southern part of rural Stokes County. Three days later, two surveyors found Alford's body in a ditch at the end of a logging road.

She had been stabbed 18 times. A length of nylon cord was tied to a bloodstained tree trunk. Investigators found an empty Monarch cigarette pack at the scene and a cigarette butt. The arrests were quick. The Stokes County Sheriff's Office got an anonymous tip that the Sapp brothers had something to do with the crime. Each gave a statement implicating Penland. Investigators arrested Penland at his mobile home in Germanton, where they seized his knife, a pack of Monarch cigarettes, a pair of muddy cowboy boots and a pair of black pants, torn in the thigh.

Investigators made a cast of the tire marks in the mud near where Alford's body was found and one of a footprint. The tire marks were consistent with Penland's truck - not surprising because there was never any question that it was his truck at the scene. The question was whether Penland was passed out in his truck as he said, or whether the Sapps told the truth. That made the footprint a crucial piece of evidence.

Joyce Petzka, an agent in the SBI crime lab, sent a report to prosecutors saying that she couldn't tell anything about the shoe from the cast made at the crime scene. She testified at Penland's trial about the tire tracks, but no one asked her about the footprint. Instead, prosecutors called Lt. Al Tuttle of the Stokes County Sheriff's Office and Bill Lemons, an agent with the SBI, to testify as expert witnesses about the footprint. They both said that the print was consistent with the boots they had seized from Penland's home. In his closing argument, the prosecutor used the footprint to declare Penland the liar and the Sapp brothers the truthful witnesses.

"If Rex Dean Penland was passed out drunk in the truck, how come his cowboy-boot prints are out there in the sod that night?" argued James Yeatts, the assistant district attorney in Stokes County. "What does that tell you about Larry and Gary Sapp? Tells you he wasn't passed out. It was just like they said. Mister was outside the truck in his boots."

After deliberating just 46 minutes, the jury convicted Penland and then sentenced him to death. Two weeks later, prosecutors cut a deal with the Sapp brothers. They pleaded guilty to second-degree murder and related charges and were each sentenced to 15 years. They were released in 1998, after serving less than five years. Larry Sapp is back in prison, on a charge of possession of a firearm by a convicted felon; since his release, Gary Sapp has been convicted twice of assault on a female.

Penland has been trying to prove his innocence. In a motion filed in 1998, his lawyers argued that prosecutors withheld evidence at his trial by not turning over the SBI report saying that the footprint was unreadable. The motion goes on to argue that prosecutors passed over the valid expert opinion from the SBI lab in favor of a deputy's opinion. The DNA evidence won Penland a new trial before the court could consider the dispute about the expert testimony on the bootprint. The new scientific evidence may not settle whether it was Penland or his nephews who lied about what happened the night that Alford was stabbed to death, but it changes the state's case against Penland. At trial, the forensic evidence corroborated the Sapps' version of what happend; now the science corroborates Penland's version.

The Bullard case:

Identification by footprint: North Carolina produced one of the most infamous charlatans in forensic science. In the late 1970s and early '80s, an anthropologist at the University of North Carolina at Greensboro named Louise Robbins testified in numerous criminal cases that she could identify a suspect through a footprint. Physical anthropologists use footprints to investigate general characteristics about a tribe or a period in human development. Robbins was the first to testify in court that individuals leave unique footprints that could be analyzed with the accuracy of fingerprint identification.

Crime-lab analysts regularly testify that they can match a footprint to a defendant's shoes by examining treads, heel proportions and width. Robbins' claims went much further. She argued that a person's gait, height, weight - even race - left a unique print. Newspapers and Time magazine touted her claims, but the scientific community ignored her work until defense attorneys began to complain.

In 1987, the American Academy of Forensic Sciences found that there was no scientific basis to her theories. "It's just cockamamie stuff," said Russell Tuttle, a professor of physical anthropology at the University of Chicago who has researched her work. "Why do we allow this kind of rot, this pseudoscience to get into our courts? Her so-called method should never have been tried in the court."

Robbins died shortly after her work was debunked. Her testimony helped convict at least 10 people, including Vonnie Bullard of Cumberland County. Bullard was convicted in 1982 in the murder of Pedro Hales, who was shot and stabbed to death in August 1981. The state's case was largely circumstantial, based on witnesses who said they saw Bullard or his truck near where Hales was believed to have been murdered. The only physical evidence was a bare bloody footprint found at what appeared to be the crime scene.

Robbins testified that the footprint was Bullard's. A Cumberland County jury convicted him of first-degree murder. In 1984, the N.C. Supreme Court upheld the conviction. The U.S. Supreme Court turned down his final appeal in 2002, and his attorneys say that he has run out of legal remedies. He remains in prison, serving a life sentence.

Critics say that Robbins' work points out the influence that scientists have on a jury. "Louise Robbins wasn't a witness who said, 'I saw a footprint there and it looks like the same size as the defendant's foot' - what anyone else could say," said Rich Rosen, a law professor at University of North Carolina at Chapel Hill. "She said, 'I'm a scientist, an objective, neutral observer, and based on scientific principles, I can tell you that was the defendant's footprint.' That carries tremendous weight with the jury."

In the years since Robbins' work was discredited, other forensic theories also have fallen. Glass shattered in a spider-web pattern was once thought to be proof of arson; bite marks were once thought to be unique; and the composition of bullet lead was once considered a valid way to match bullets to a crime. All have been debunked as nothing more than theory, and experts continue to raise questions about the reliability of standard methods such as fingerprint and hair analysis.

"All these things from CSI programs have this reputation of infallibility, yet when you scratch the surface, most of these so-called sciences are made of tin," said David Faigman, a professor at the University of California Hastings College of the Law. "It's almost an alchemy that's going on when they turn their experience into scientific opinion when there's no research underlying it."

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