PASSAGE OF THE DAY: "In 2014, the U.S. Department of Justice’s Office of the Inspector General (OIG) published a report on the FBI’s handling of complaints about the research and testimony of several of its forensic analysts, including Malone.
The OIG report noted that a review of Malone’s work in 1999 found:
▪ Malone repeatedly testified that by using microscopic analysis, he could match an unknown hair to a known hair, and the probability of the unknown hair belonging to somebody other than the known hair’s contributor was one in 5,000. These claims lacked a scientific basis.
▪ Malone’s notes regarding his examinations were often inadequate or unreadable, making it impossible to verify his results. The reviewers found that “Malone’s testimony was consistently overstated,” and was “misleading and inaccurate.”
▪ Malone repeatedly testified that he had personally done tests and examinations, but no exhibits were presented that reflected or constituted such tests.
▪ Malone repeatedly testified that “at least 15 characteristics are needed for a hair comparison.” This claim lacked scientific support.
Based on the findings, the report concluded that Malone had “repeatedly created scientifically unsupportable lab reports and provided false, misleading, or inaccurate testimony at criminal trials.”
Nelson’s case was among those reviewed in 1999, the OIG report said, and the review said that Malone had testified falsely when he said that a hair must have at least 15 characteristics to have value for comparison. “This has no scientific basis known to this reviewer,” a forensic scientist who evaluated Malone’s work wrote."
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NATIONAL REGISTRY OF EXONERATIONS SUMMARY: "Derrie Nelson of Washington D.C. was convicted of murder and assault in 1986. He was exonerated in 2022, after the testimony of the FBI analyst who said hairs at the crime scene tied Nelson to the murder was found to be false and misleading."
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| ENTRY: Derrie Nelson: By Ken Otterbourg; Published on August 22, 2022. Contributing factors: False or misleading forensic evidence; Perjury or false accusation; Official misconduct; Entered on July 24, 2022. GIST: "At about 11:45 p.m. on February 12, 1985, Tami Battle was saying goodnight to her date in front of her home in the Columbia Heights neighborhood of Washington, D.C., when she saw a man go into the house of her neighbor, Leonard Kelly. Battle would later tell the police that she didn’t see the man’s face, but that he wore bib overalls, work boots, a rust-colored jacket and something blue on his head. She also said that he appeared to quickly enter the house and didn’t have to force his way in. Battle and Kelly’s rowhouses shared a common wall. Battle said she was upstairs when she heard from next door what sounded like a fight. She then heard two gunshots and the sound of someone running through Kelly’s house. Battle went outside but couldn’t see anyone. Kelly came home at about 2:30 a.m. and parked his car in the garage at the rear of his house. He would tell police that he ran into Derrie Nelson, who had briefly lived in Kelly’s home but moved out in early January 1985. Kelly said Nelson pulled a gun on him and tried to shoot him but the gun initially jammed before Nelson was able to shoot Kelly in the back of the head. The men fought. Kelly got away and ran about a block toward Nob Hill, a bar that he co-owned. Nelson caught up with him outside the bar and the men continued their fight. Nelson left when the bar’s manager came outside. Kelly called the police. He told the police that Nelson had attacked him, and described Nelson’s attire as “blue bib overalls and an orange or red shirt.” At about 2:50 a.m., police accompanied Kelly back to his house. Upstairs, they found the body of Robert Nichols, who was renting a room from Kelly. He had been shot to death. Police stopped Nelson at about 3:10 a.m., but let him go without asking his name because Nelson was not wearing clothes that matched the description of the assailant. He was arrested 10 minutes later after giving other officers his name. The yellow shirt he was wearing had been turned inside out, and police found a knife with traces of blood in a pocket in Nelson’s jacket. While on the way to the police station, Nelson denied going to Kelly’s house and said he had been playing cards all night. Officers later asked him about blood on his socks and shoes, and Nelson said he had cut himself, possibly while injecting heroin earlier that night. A medical examiner performed an autopsy on Nichols. Although Battle said she heard only two shots, the autopsy said that Nichols was shot five times: in the head, chest, side, abdomen, and finger, which the medical examiner suggested was a defensive wound. Nelson was charged with felony murder, assault with intent to kill while armed, armed kidnapping, first-degree burglary, armed robbery, and carrying a pistol without a license. Nelson, now 25 years old, went to trial in the District of Columbia Superior Court on May 20, 1986. Prior to the trial’s start, Nelson asked the judge for a new attorney. He said that his court-appointed public defender lacked experience and that she had failed to provide him in a timely manner with material to assist in his defense. Judge Robert Scott heard Nelson’s request and quickly dismissed it. Battle testified about the events on the night of the shooting. She could not make an identification, but her description of the clothing worn by the person who entered Kelly’s house lined up with the testimony of the manager at Nob Hill, who saw the fight between Kelly and Nelson. The manager knew both men, and he also told police about Nelson’s attire. A woman who lived near the bar also identified Nelson in court as the man she saw fighting with Kelly. Kelly testified that he had rented a room to Nelson in December 1984. Nelson failed to pay rent, Kelly said, and he moved out in January, leaving his belongings but taking a set of keys. Kelly said he moved Nelson’s boxes into the basement, but he believed that Nelson had come by prior to February 12, because some items in the boxes had been removed. Kelly testified that Nelson confronted him as he got out of his car and demanded to be let inside to retrieve his belongings. Kelly said he told him to come back another time. He said Nelson pulled out a knife, and the men went inside. Kelly testified that he saw a TV and a VCR were missing. He testified that Nelson pulled out a gun and threatened Kelly. The gun jammed several times, Kelly testified, prior to Nelson shooting him in the back of the head. The men left the house and ended up fighting in the garage. Kelly said Nelson tried to force him into the trunk of his car, but he was able to hit Nelson with an umbrella and run toward the bar, where the fight continued. Kelly said Nelson slashed him with a knife and hit him with a cinderblock. Robert Hall, a special agent in the FBI’s serology unit, examined blood samples taken from Nelson’s shoes and socks. He testified that the blood from the shoes was identified as human, but there was an insufficient amount to do additional testing. The blood from the socks, Hall testified, was compatible with Kelly or Nichols but not Nelson. Hall testified that there was blood on the knife, but he was unable to determine if it was animal or human blood. No witnesses placed Nelson inside Kelly’s house at the time of the shooting, but investigators had found a hair on Nelson’s coat that the prosecutor said in opening statements “was consistent with the hair of Robert Nichols.” In addition, the prosecutor also said that hairs found on Nichols’s clothing were consistent with Nelson’s hair. FBI Special Agent Michael Malone testified about his examination of the hairs and his findings. First, he told the jury that he looked at the hairs under a low-powered stereoscope that enabled him to determine whether each hair was from a human, and if so, the person’s race, and the part of the body it came from. The next step, he testified, was an examination of the hair under a high-powered stereoscope, which he said allowed him to identify at least 15 points of comparison with other hair samples. Malone said: “The whole key to the exam now is how these characteristics are arranged within that hair, because they are arranged slightly differently in almost everybody’s hair. However unique, it never goes to the point of a fingerprint. In other words, you can never get a hair to the point where you can say, ‘This hair came from that person and nobody else in the world.’ To a trained examiner, though, they are fairly unique. My own experience, I’ve looked at hairs from about 10,000 different people over the last 10 years. Okay. Over that time, I’ve only run across two occasions, out of those 10,000 people, where I had hairs from two different people that were so close that I couldn’t separate them out. So that will give you some type of a ballpark figure.” Malone testified that the hair found on Nichols “matched the head hairs of Mr. Nelson in all characteristics. In other words, was completely indistinguishable from his head hair. Therefore, it was consistent with having originated from Mr. Nelson.” Malone was asked what percentage of Blacks would have hair with all 20 of the characteristics. He said the odds would be about one in every 5,000. Malone said that the hair taken from Nelson’s coat “microscopically matched the head hairs of Mr. Nichols. Was completely indistinguishable from and ... consistent with having originated from Mr. Nichols.” Nichols was white, and Malone said the odds of two white people having identical hair would again be “around one in 5,000.” The prosecutor then asked Malone about the odds of the hairs found on Nichols’s body and Nelson’s body having come from other individuals. Malone testified that he was not an expert on statistics but that because each transfer was an independent event, the odds of the double transfer false positive were about “one in 25 million.” Nelson testified in his own defense. He said that he met Kelly while working as a DJ at Nob Hill and that Kelly offered him a room in December 1984 with an understanding that Nelson would not pay rent. But Nelson said that Kelly wanted sexual favors, and he moved out after four weeks. Nelson said he spoke with Kelly at about 11:30 p.m. on February 12, and Kelly asked him to come over. Kelly met him outside the house, and the men went upstairs. Nelson testified that Kelly asked for Nelson’s help in moving Nichols’s body. Nelson said he refused, and the men then fought. Nelson testified that he did not shoot Kelly, but he admitted that he might have hit him with a cinderblock. Nelson testified that he lied to the police about his whereabouts because he knew there was a dead body in the house and he did not want to become part of the investigation. On cross-examination, Nelson was asked, “At the time you gave that statement, you didn’t know that a hair identical to yours had been found on the decedent’s body, did you?” During closing arguments, Nelson’s attorney said that the hair evidence did not prove Nelson killed Nichols. It was possible that because Nelson had once lived in the house and had been in the house with Kelly on the night Nichols was killed, there had been an inadvertent transfer of hair between victim and defendant. The prosecutor scoffed at that scenario. “It’s possible that [Kelly] got a hair from Mr. Nichols’s head and put it on this coat that just happened to be there that belonged to [Nelson]. And, it’s possible that he put it beside the door, knowing, of course, that Mr. Nelson would pick it up. And, it’s possible that he got two of Mr. Nelson’s hair and put them on the dead man. And it’s possible that night that he was communicating by mental telepathy with Tammie Battle so that he described the same man attacking him as was described by Tammie Battle … But, ladies and gentlemen, it’s not reasonable to believe any of those things.” On May 27, 1986, the jury convicted Nelson of felony murder, assault with intent to kill while armed, armed kidnapping, first-degree burglary, and carrying a pistol without a license. He was sentenced to 42 years to life in prison. He was acquitted of armed robbery and felony murder, with the armed robbery as the underlying crime. Nelson appealed. He claimed in his motion for a new trial that prosecutors had committed so-called Batson violations by striking Black jurors based solely on their race. He also claimed that Judge Scott erred in dismissing his request for a new attorney. Finally, Nelson claimed that the jury should have received an instruction about second-degree murder as a lesser included offense of felony murder. The District of Columbia Court of Appeals affirmed the bulk of Nelson’s convictions on December 30, 1991. It rejected Nelson’s Batson claims because there was no clear record from either Nelson or prosecutors about the racial composition of the jurors that heard the case. With the agreement of prosecutors, the court vacated the burglary conviction because it merged with the felony murder. The appellate court also said that Judge Scott should have held a hearing on Nelson’s request for a new attorney. The court sent the case back to superior court for that hearing and said that the judge could vacate the remaining convictions if it found that Nelson’s trial attorney was ineffective. A judge ruled in 1995 that Nelson’s attorney did not provide ineffective assistance of counsel. In 2014, the U.S. Department of Justice’s Office of the Inspector General (OIG) published a report on the FBI’s handling of complaints about the research and testimony of several of its forensic analysts, including Malone. The OIG report noted that a review of Malone’s work in 1999 found: ▪ Malone repeatedly testified that by using microscopic analysis, he could match an unknown hair to a known hair, and the probability of the unknown hair belonging to somebody other than the known hair’s contributor was one in 5,000. These claims lacked a scientific basis. ▪ Malone’s notes regarding his examinations were often inadequate or unreadable, making it impossible to verify his results. The reviewers found that “Malone’s testimony was consistently overstated,” and was “misleading and inaccurate.” ▪ Malone repeatedly testified that he had personally done tests and examinations, but no exhibits were presented that reflected or constituted such tests. ▪ Malone repeatedly testified that “at least 15 characteristics are needed for a hair comparison.” This claim lacked scientific support. Based on the findings, the report concluded that Malone had “repeatedly created scientifically unsupportable lab reports and provided false, misleading, or inaccurate testimony at criminal trials.” Nelson’s case was among those reviewed in 1999, the OIG report said, and the review said that Malone had testified falsely when he said that a hair must have at least 15 characteristics to have value for comparison. “This has no scientific basis known to this reviewer,” a forensic scientist who evaluated Malone’s work wrote. Nelson filed a motion for a new trial on April 24, 2015, arguing that Malone’s false and misleading testimony about the hair comparison violated his right to due process. On December 21, 2017, Judge Todd Edelman of District of Columbia Superior Court vacated Nelson’s convictions. Edelman wrote: “Malone’s testimony rested on a foundation of lies and exaggerations. His testimony about his methodology, as well as the statistics and odds he presented in support of the notion of a ‘match,’ lacked a valid scientific basis. Malone presented his conclusions as definitive science when they simply were not.” Edelman noted that Malone had repeated in testimony that he had performed 10,000 hair examinations, but the number never increased as the years went by. “It appears likely that the figures about the number of analyses he had performed that provided the basis of Malone’s statistical conclusions were at best a guess, and at worst yet another fabrication,” Edelman wrote. Prosecutors had conceded in their response that Malone made false statements, but they said Nelson’s conviction should stand because the remaining evidence was so strong. Edelman disagreed, writing, “All of this evidence depends on the jury's acceptance of a chain of inferences in a manner that hair evidence does not; none of it carried probative value nearly as direct and weighty as the hair evidence in placing Nelson in the home and in direct physical contact with Nichols; and none of it could be deemed scientific, neutral, and objective in the way that Malone's testimony about the hair could be.” The District appealed Edelman’s ruling, and Nelson was released on bail on July 6, 2018, pending the outcome of the appeal. In its appeal, the District conceded vacating the conviction for felony murder but argued that Nelson’s convictions for the crimes involving Kelly – the assault, kidnapping and weapons possession – should stand, because they did not rely on Malone’s false and misleading testimony to place Nelson at the scene of the crime. On October 3, 2019, the District of Columbia Court of Appeals affirmed Edelman’s ruling. The appellate court said that prosecutors had linked the murder and the assault, and relied on Malone’s testimony to tie the events together. The ruling said that the prosecutor told jurors that the hair evidence would reveal “the identity of the murderer and the person who assaulted Mr. Kelly,” and later said that Nelson “had killed one man earlier in the evening. He went back to try to cover it up by killing Kelly, and it didn’t work.” Nelson had claimed self-defense in his fight with Kelly, and none of the other witnesses saw Nelson with a weapon. “The foundational element that enabled the jury to discredit Nelson’s self-defense claim was Malone’s testimony, which placed him in Kelly’s home earlier that evening and painted a picture of the events without consideration of Nelson’s self-defense claim,” the court said. “Thus, regardless of who bears the burden, we are unable to conclude that Malone’s testimony was harmless beyond a reasonable doubt. More than two years later, on March 4, 2022, prosecutors filed a motion to dismiss the charges against Nelson. Judge Milton Lee granted the motion that day. Other exonerees wrongfully convicted based in part on Malone’s testimony are Anthony Bragdon, Elmer Daniels, Donald Gates, Cleveland Wright, and Juan Matta Ballasteros." The entire entry can bee read at: 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.html Please 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; SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL: 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; ————————————————————————————————— FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true! Christina Swarns: Executive Director: The Innocence Project; |
