Retired criminalist Kevin Brown; California: On going civil lawsuit: Accidental cross-contamination of sperm cells in police lab? His widow is suing San Diego police, blaming detectives for botching the case and causing her husband’s suicide," the San Diego Union Tribunal reports.
PUBLISHER'S NOTE:This appears to be a tragic, but most interesting case considering the subject matter of this Blog. It's just getting under way. I will dip into it from time to time.
PASSAGE OF THE DAY: "When he died, cold-case detectives were investigating Brown, 62, for his possible involvement in the 1984 strangulation of 14-year-old Claire Hough at Torrey Pines State Beach. They’d linked him through DNA testing to
sperm cells found on a vaginal swab collected during the autopsy.
According to the lawsuit, detectives recklessly rejected the most
obvious explanation for the sperm: accidental cross-contamination in the
police lab. Brown had worked there then as a criminalist. He didn’t
process the Hough evidence, but he and others routinely kept their own
semen samples on hand as known standards to check the efficacy of
testing methods, the suit says. It describes contamination by lab
employees as “a well-recognized, well-documented, and frequent
occurrence,” and identifies 41 instances of it happening at the San
Diego Police Department since 2001.Brown suffered from depression
and anxiety most of his life, and the suit says his final downward
spiral can be tied to unconstitutional police misconduct during the
investigation. It accuses the lead detective, Michael Lambert, of
misleading a judge when he got him to sign a search warrant, omitting
key facts about possible lab contamination, and downplaying the criminal
behavior of a convicted rapist who was also tied to the murder through
DNA testing."
STORY: "Kevin Brown’s widow is suing San Diego police, blaming detectives for botching the case and causing her husband’s suicide. Trial begins Monday," by reporter John Wilkens, published by The San Diego Union Tribunal on February 2, 2020.
PHOTO CAPTION: In a photo from 2016, Rebecca Brown
holds a picture of her husband, retired SDPD criminalist Kevin Brown,
who was investigated as a suspect in the 1984 murder of Claire Hough. He
committed suicide during the investigation, and his widow has filed a
wrongful death claim against San Diego police.
PHOTO CAPTION: "Ronald Tatro was identified through DNA as a suspect in the 1984 homicide of Claire Hough. He died in 2011. "
GIST: No one doubts Kevin Brown acted alone when he hanged himself at Cuyamaca Rancho State Park more than five years ago. But what led to the suicide? That’s
at the core of a civil trial scheduled to begin Monday in San Diego
federal court pitting Brown’s widow, Rebecca, against the city of San
Diego and its police department. When he died, cold-case detectives were investigating Brown, 62, for his possible involvement in the 1984 strangulation of 14-year-old Claire Hough
at Torrey Pines State Beach. They’d linked him through DNA testing to
sperm cells found on a vaginal swab collected during the autopsy. According to the lawsuit, detectives recklessly rejected the most
obvious explanation for the sperm: accidental cross-contamination in the
police lab. Brown had worked there then as a criminalist. He didn’t
process the Hough evidence, but he and others routinely kept their own
semen samples on hand as known standards to check the efficacy of
testing methods, the suit says. It describes contamination by lab
employees as “a well-recognized, well-documented, and frequent
occurrence,” and identifies 41 instances of it happening at the San
Diego Police Department since 2001.
Brown suffered from depression
and anxiety most of his life, and the suit says his final downward
spiral can be tied to unconstitutional police misconduct during the
investigation. It accuses the lead detective, Michael Lambert, of
misleading a judge when he got him to sign a search warrant, omitting
key facts about possible lab contamination, and downplaying the criminal
behavior of a convicted rapist who was also tied to the murder through
DNA testing. Detectives spent months trying without success to
connect Brown to the rapist, Ronald Tatro, who died in 2011. When they
declared the case solved after Brown’s suicide, they named both as
suspects but didn’t explain how or why two apparent strangers not only
strangled Hough together, but mutilated her body and stuffed her mouth
with sand. They suggested in court records that the men “possibly met
while traveling in similar circles” such as strip clubs. Now, in their response to the lawsuit, city attorneys say they “do
not intend to argue or comment that Kevin Brown killed or raped Claire
Hough,” although they say they plan to introduce comments he made to
detectives as evidence of his state of mind. They defend the department’s investigation, stating that a failure to
aggressively investigate Brown would have led to accusations that they
were trying to protect a former colleague. “There is no question that
this is a tragic case,” Senior Chief Deputy City Attorney Catherine
Richardson wrote. “A young girl was murdered. A former SDPD civilian
employee committed suicide. But (the detectives) were doing their jobs.” The
city says there’s no proof of lab contamination in the case, just
theories about how it might have happened. Brown’s own statements during
the investigation — after detectives told him about the DNA, he said he
might have briefly dated and had sex with someone named Claire in the
1980s — contributed to whatever stress he was feeling, they say, as did
comments he received from people he knew who reportedly believed he
might have been involved in the murder. “Homicide detectives are
not mental health professionals,” the city attorneys wrote. “They cannot
be expected to know whether a suspect is at risk of suicide because of
an investigation.” Whatever the source of his anguish, Brown was
unraveling by the fall of 2014, according to the lawsuit. He wasn’t
sleeping. He’d lost weight. He was keeping track on a calendar of how
many days had gone by since police searched his Chula Vista house and
removed more than a dozen boxes of papers, photos and other items.
Twice, relatives concerned that he might harm himself removed guns from
the home. On Oct. 20, 2014, 10 months after police first talked to
him about Hough, Brown drove to a hardware store and bought a rope. He
went to a cabin his family owns near Julian and got a white plastic
chair to stand on. Then he drove in his pickup truck to Cuyamaca Rancho
State Park, walked to a tree, and killed himself.
Lab practices
The police lab in 1984 was less sophisticated than it is now. DNA
analysis had not been introduced yet. Criminalists routinely worked
without face masks or gloves. They typically washed scissors and other
equipment with just water, which is now known to be a poor way of
preventing contamination. They regularly did “presumptive” tests to see if blood or semen was
on certain pieces of evidence. That typically involved using a chemical
solution on the item and watching for a change in color or other
reaction. To make sure the chemical was working correctly, they would
test it first on a piece of cloth containing a known sample of blood or
semen. According to the lawsuit, Brown, who retired in 2002 after
20 years with the Police Department, kept his own samples at work, as
did other criminalists. In pre-trial depositions, several of his former
colleagues said the samples were sometimes kept in desk drawers or
envelopes. Sometimes, if they ran out of their own samples, they would
use each other’s. Women analysts borrowed semen samples from the men. In the Hough autopsy, the coroner’s office did presumptive tests on
swabs and examined microscope slides of fluids from the victim’s body
and did not detect semen. It also did not note any signs consistent with
rape. Swabs from the autopsy were given to the police, who did their
own presumptive tests without finding anything to pursue. As
scientific testing got more precise, cold-case detectives occasionally
asked the lab to examine the Hough evidence again, and in 2012 they got
results. Eight blood stains on her shorts came back to Tatro. Sperm
cells on her underwear came back to her boyfriend, who was in Rhode
Island at the time of the murder and ruled out as a suspect. (He’s also
no longer alive.) And a small number of sperm cells on a vaginal swab were identified as belonging to Brown. A
DNA expert hired by the widow’s legal team — led by San Diego attorney
Eugene Iredale — said in a report that she would have expected to find a
lot more sperm if, as detectives initially alleged, Brown had raped
Hough. None was found anywhere on her body or clothes. Police surmised
that was because Brown had a low sperm count or had not fully
ejaculated, but the DNA expert said the trace amount on the swab is more
likely from contamination. According to the lawsuit, several current or former lab employees told Lambert that they suspected contamination, too. When he filed an affidavit to get a search warrant in the case, the
detective didn’t mention the lab’s practices back in 1984, or the
coroner’s findings. He quoted then-lab manager Jennifer Shen as telling
investigators that “Brown had no access to the evidence in the Hough
murder” and that “cross DNA contamination is not possible.” Shen
has since testified in a deposition that those were not her words, and
that she, like most forensic scientists, knows contamination is possible
even in the most careful labs.
The lawsuit alleges that if
Lambert, a 24-year veteran at the time, had been more truthful in his
search affidavit, no judge would have found probable cause and approved
the warrant. In a pre-trial ruling, U.S. District Judge Dana Sabraw
reached a similar conclusion. “All of the evidence that was
omitted from the affidavit tended to negate Lambert’s theory that Brown
was involved in Claire’s murder,” Sabraw wrote. “And all of the omitted
facts were consistent with an innocent explanation for the DNA hit:
cross contamination.” It will be up to a jury to decide if the omissions were done with intentional falsehood or a reckless disregard for the truth.
The search
When detectives searched the house, they were looking for items
connecting Brown to Hough or Tatro, as well as magazines, electronic
files, videos, books, “or other written or photographic evidence
depicting or related to teenage or pre-teen pornography, rape, bondage,
and sadomasochism.” They found none of that in the 14 boxes and four trash bags they removed. What
they did take has become part of the lawsuit, which alleges that the
detectives violated the Fourth Amendment of the U.S. Constitution, which
prohibits unlawful searches and seizures by the government. Among
the thousands of items they grabbed: Rebecca Brown’s international
driving permit; Kevin Brown’s mother’s tax return from 2000; a note from
Ronald and Nancy Reagan; a coaster from a Black Angus in Germany; a
copy of the Magna Carta; a steamship ticket from 1932; music recordings
by Perry Como, Bing Crosby and Barbara Streisand; Rebecca Brown’s
parents’ 1951 wedding album; and a recipe for fudge. Detectives
defended the haul, saying it would have been too time-consuming to sort
through everything at the house. That reasoning has already been
rejected by Sabraw, who found the search overly broad and granted a
summary judgment in favor of Brown’s widow in that part of the lawsuit.
It will be up to the jury to decide who caused the violation, and what,
if any, damages to award.
The search is also important because the
lawsuit claims it contributed to Brown’s mental anguish, especially as
months went by and detectives resisted returning the items, even after
they had determined there was nothing of value for their investigation. A
psychologist hired by the widow’s lawyers reviewed mental-health
records and said he believes “the way Mr. Brown’s investigation was
handled contributed in a direct manner to his suicide,” and that if
detectives had returned the seized items, he would still be alive. A
psychologist hired by the city disagreed. He said Brown “bears the
greatest level of responsibility for the decision to end his life,”
noting that the retired criminalist had stopped taking anti-depressants
and neither he nor his relatives had reported concerns about suicide to
his doctors. The detectives, the psychologist wrote, “did not cause
Kevin’s death.” Jury selection is scheduled to begin Monday,
followed by opening statements and a trial that is expected to last
about two weeks."
See CBS8 story on opening statements by Investigative Producer David Gotfredson, published on February 3, 2020 under the heading: "Opening statements underway in San Diego police crime lab worker wrongful death lawsuit," and the sub-heading, "Kevin Brown’s widow is suing the City of San Diego and two retired SDPD homicide detectives alleging they ignored evidence that proved Brown was innocent," at the link below.
"Opening statements got underway Monday in a federal lawsuit alleging
the wrongful death of a former San Diego Police Department crime lab
employee, brought by the widow of the employee, Kevin Brown. Plaintiff’s
attorney Eugene Iredale began by telling the jury – of two women and
six men – that the lawsuit will deal with a wrongful police search of
Brown’s Chula Vista home in 2014. Iredale also said the case will focus
on DNA contamination inside the SDPD lab.
Brown committed suicide by hanging in October 2014, ten months after
the SDPD search warrant was served on his home, seizing thousands of
photographs and boxes of personal belongings. Brown’s
widow, Rebecca Brown, is suing the City of San Diego and retired SDPD
homicide detectives Michael Lambert and Maura Mekenas-Parga, alleging
they ignored evidence that proved Kevin Brown was innocent. The
case began in 2012, when SDPD detectives ordered new DNA testing in the
unsolved, 1984 murder of Claire Hough, age 14, on Torrey Pines State
Beach. That testing identified the blood of Ronald Tato – a
deceased, convicted rapist – on the victim’s pants. Additionally, Kevin
Brown’s semen was found on the swabs taken from the girl’s vagina. No
one disputes that Tatro was involved in the girl’s murder. It’s Brown’s
alleged involvement that is the key issue in the lawsuit. In
court Monday, Iredale argued the semen found on the swabs was the result
of contamination in the SDPD lab where Brown worked. He said Brown and
other crime lab employees would routinely bring their own semen samples
into the lab in 1984 and use them as control samples. Iredale argued it was the intense investigation of Brown by SDPD that caused him to commit suicide in 2014. The
City of San Diego argued in court police detectives were just doing
their jobs and they were simply relying on the DNA evidence in their
investigation of Brown. Chief Deputy City Attorney Catherine
Richardson told the jury the detectives were never told about possible contamination or workers bringing semen samples into the lab before they served a search warrant on brown's house. Richardson argued Kevin Brown's suicide was the result of his own
actions, that he was depressed and had stopped taking his anti-anxiety
medication. The trial is estimated to last two weeks. https://www.cbs8.com/article/news/crime/opening-statements-underway-in-san-diego-police-crime-lab-worker-wrongful-death-lawsuit/509-ea93787b-ef86-4856-af3c-8cda2737caef
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.htmlPlease send any comments or information on other cases and issues of interest to the readers of this blog to:hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.""
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
Two Blogs Now: The Charles Smith Blog; The Selfless Warriors Blog: I created the Charles Smith Blog in 2007 after I retired from The Toronto Star to permit me to keep digging into the story of the flawed pathologist and the harm he had done to so many innocent parents and caregivers, and to Ontario’s criminal justice system. Since then it has taken new directions, including examinations of other flawed pathologists, flawed pathology, and flawed science and technology which has marred the quality of justice in courtrooms around the world. The heart of the Blog is my approach to following cases which raise issues in all of these areas - especially those involving the death penalty. I have dedicated 'The Selfless Warrior Blog’ (soon to appear) to those exceptional individuals who have been ripped out of their ordinary lives by their inability to stand by in the face of a glaring miscarriage of justice. They are my ’Selfless Warriors.’ Enjoy!
