Monday, April 14, 2008

Oral Arguments

Oral arguments in Todd's case were heard on April 10th in a special session of the Colorado Court of Appeals held at Denver University's Sturm College of Law.

Streaming video is available online, thanks to Sturm College.

After the hearing ended, the attorney's took questions from the law students in attendance. Most questions dealt with the nature of work done by appellate attorneys, one question was about the case.

The question we'd like answered is why did the DA cut a deal with Brad Orgill before all the evidence had even been sent to the crime lab--and almost a year before the Metro Crime Lab reported that Orgill could not be ruled out as the assailant.

We've tried to approach that question in the series of blog entries here titled "How an innocent person is convicted." It seems, though, that this is a question the prosecution needs to answer--we can only speculate.

Friday, April 11, 2008

Exculpatory Evidence

For Todd's family and friends, the hearing of oral arguments was a stressful occasion. Our attorney had but 15 minutes to address the court. Most of that time was taken up with questions from the three-judge panel.

The questions centered upon an evidence issue: the loss of deposits on what prosecutors alleged to be the knife used to kill Anthony Madrill.

Previous posts (Altered Evidence and Altered Evidence: How the State Explains the alteration of evidence in its possession) have touched on this evidence issue.

Intuition tells most of us that relying upon evidence that has been altered is a bad idea--especially when the claims derived from the altered evidence are at odds with all other physical evidence.

Legal consideration of this point, however, is more complex.

The alteration of the knife in this case involved the loss of a deposit on the knife widely accepted to have been tire debris.

To determine if that loss unfairly prejudiced Todd's defense, the court uses a three-part test:

  1. Was the state responsible for the loss?

  2. Did the lost or destroyed evidence have an exculpatory value that was apparent at the time of its loss?

  3. Is comparable evidence unavailable to the defendant?

Questions from the judges at the oral argument focused on the second part of that test: did the material have an exculpatory value that was apparent at the time of its loss?

The judgment of the police regarding the knife's exculpatory value can be seen by examining their statements and actions in light of the context they understood at the time the evidence was received by them.

Getting to the context is simplified because it was very early in the investigation—their data-field was pretty limited. A look at the early timeline reveals a context where the deposit on the knife was especially significant.

The knife was retrieved from Todd on the afternoon of November 20, 2004. The investigating officers' question at that time had to be if the knife was the murder weapon. Earlier that morning Det Frady had interviewed Charles Schwartz, an interview that clearly points to Brad Orgill as the person who fought with Anthony Madril. Schwartz tells them:

  • The only people physically fighting are Madril and the person later identified to be Orgill. The person later identified as Todd is not seen around Madril. Schwartz explains that Todd was on the passenger side of the vehicle while Madril and Orgill were on the other side and about 20 feet up the road.

  • The fight between Orgill and Madril looked pretty even to Schwartz. Todd is the person who punctured the right-rear tire on his truck; Orgill is the person Anthony is enthusiastically fighting in front of and to the left of his truck.

  • He (Schwartz) agrees with Frady’s hypothesis that “there were two knives”—one used to puncture the tire, the other used to stab Madril.

Frady conducted a second interview with Schwartz on the morning of 22 November. It’s clear from the 22 November interview with Schwartz that Frady is testing the two-knife hypothesis when he asks Schwartz repeatedly and in detail to go over the sequencing of the fight between Orgill and Madril and the timing of the puncturing of the tire.

  • Schwartz confirms what he’d reported in his first interview.

  • Schwartz explains very clearly and under detailed questioning that Madril fought hard with Orgill at the same time that the tire was punctured.

Frady’s 22 November interview with Schwartz occurred at 1030 a.m. An hour and half later, Det Vanderpool goes to the evidence room and inspects the pockets of the leather jacket Todd had worn. Specifically, he is looking for anything that “appeared to be blood.” The reason for this inspection is clear: blood stains in the pocket, where the knife had been stored, would connect the knife to the stabbing. However, the pockets did not have any blood stains.

Against this background Richer and Nohr discussed the best way of preserving the black deposit on the knife.

What we see within the context of these actions by the police is an attempt either to rule the knife in or to rule it out as the murder weapon. The investigation of transfer between objects at a crime scene is an important part of every detective’s training. All investigative officers (and even lay observers in this case) would recognize the importance of the deposits on what is purported to be the murder weapon. Anyone would recognize that in considering the “two-knife” hypothesis, where one knife is used to stab a person and another used to puncture a tire, that investigation of deposits of blood and “black debris” would be central to determining how a particular knife had been used. Clearly, deposits of blood would have been inculpatory while deposits of tire material would have been exculpatory.

Actually, any deposits would be exculpatory because they would indicate that the knife had not been scrubbed by Todd—guilty behavior that the prosecutor and state’s witnesses suggested at least three times during the trial.

Monday, April 07, 2008

How an Innocent Person is Convicted, Part 13: A jury that doesn't understand presumption of innocence or reasonable doubt

Despite the prosecution's use of altered evidence, and their attempts to confuse the jury, we approached the verdict with confidence. How could they find Todd guilty when no one ever saw him near the victim, when everyone saw Brad Orgill fighting fiercely with the victim? How could they believe that the only person seen fighting the victim, who was covered in the victim's blood, was not the more likely assailant? How could they believe that a person could be stabbed in the heart and then just fly off to fight with someone else, shouting, "It's on! Let's go!"? How could they believe that an assailant would walk up to someone, stab him in the heart, and then refuse to take a swing at a second person who was egging him to fight? How could they think that an assailant who'd stabbed someone in the heart would have none of that person's blood on his clothing, not even in pockets that held the alleged murder weapon?

We were stunned when the guilty verdict came.

The pain we still feel over the jury's decision to convict grew to include unbounded frustration when we learned of an interview with one of the jurors.

On the eve of Todd's sentencing Brian Arnot interviewed one of the jurors:

Q: Do you think beyond a reasonable doubt that he did do it?
Juror: I don't know....
You can hear the context of that admission by clicking here.

We've played that audio recording for a number of people. Their response is always a sarcastic "so that's a jury of one's peers."

Unfortunately, the audio file you can listen to on the Internet is out of bounds for the judges. Such comments are inadmissible under Colorado's rules of evidence. Ironic, isn't it, that the trial court in Todd's case had no difficulty accepting into evidence a purported murder weapon, the condition of which had been altered while it was in police custody, but clear evidence that the jury did not understand its responsibilities is inadmissible.

The absence of a cure for juror incompetence should suggest to us all that juror education needs to become a higher priority.

Sunday, April 06, 2008

How an Innocent Person is Convicted, Part 12: Detective Jeff Nohr "clarifies"

The lead investigator was El Paso County Sheriff's Detective Jeff Nohr. He sat with the prosecutors and if a prosecution witness said something inconvenient for the prosecutions, Nohr would take the stand and "clarify." Here we document but one of his "clarifications."

Detective David Yarbrough searched the crime scene with his K-9, Ivor. Of course, one of the main things he was searching for would have been any kind of weapon, especially a knife. When asked to define the area of his search, he said that it was between the crime scene tapes that had been set up. Police photos show that these tapes were set up across Conrad Road. Here's a police photo showing the northern boundary of the crime scene (click on the photo to see hi-res original):

And here's a photo of the southern boundary (You have to look closely to see the yellow tape tied to the stop sign):

It's important to note that the tape only defines the northern and southern boundaries of the scene. No tape was set up alongside the road.

Det Yarbrough, when asked how far off the pavement he searched, replied "Would have been about 15 feet on either side of the pavement 'cause I had him on a 15-foot lead."

The answer seems to be honest and based upon fact, especially because he tells us how he recalls the distance.Of course, 15 feet is far short of the distance most could throw a weapon such as a knife.

On redirect, Yarbrough maintained his description of the search area:

Prosecutor Stephanie Rikeman Q. You did search off either side of the curb on Conrad Street?
A. Yes, I did.
Q. About how far?
A. Within the banner tape.

Clearly, Yarbrough was quite sure of the area he searched, but the implication that the search had not been as thorough as it should have been brought Jeff Nohr to the stand later that afternoon. You be the judge if his testimony is "clarification" or damage control.

Nohr testified, "So I asked Deputy Yarbrough to utilize his dog all through this area as well and then on the west side of the road through these larger trees, again, with all the mulch. And then Deputy Yarbrough went down to the east of the intersection with his dog to the Appaloosa Gentlemen's Club searching both sides of the road in that area. And it was described Deputy Yarbrough basically was to search within a certain area, within arm's throw of how far somebody could throw something."

Notice how carefully Nohr words his testimony. I'm sure he'd maintain that he was just "clearing up" any questions about the area Yarbrough was told to search. Though, Nohr does seem to slip in his second sentence, when he maintains that Yarbrough actually searched all the way "to the Appaloosa Gentlemen's Club," which is about a quarter mile beyond the confines of the police tape. How confusing might this testimony be to jurors? Does it seem like a trick to get the jury to think that the search for another weapon was more thorough than it actually was?

So it seems.

Friday, April 04, 2008

How an Innocent Person is Convicted, Part 11: Wait a year to perform a crime scene analysis; do it without all the evidence; then ignore its findings

As soon as Todd was charged, we pushed the police and prosecution to investigate the stabbing of Anthony Madril thoroughly. We accepted many delays to accommodate the state's slowness in processing forensic evidence.

We especially wanted the state to examine the blood stain on Todd's jacket, which we knew would be his, not the victim's. And we wanted the state to examine the black debris Detective Richer had seen on Todd's knife. We knew that it had to be from the puncturing of the right tire of Schwartz's truck, and that placing Todd at the right-rear of Charles Schwartz's truck while Brad Orgill and Anthony Madril fought fiercely to the front and left of the truck was important to understanding clearly what happened that terrible night.

But the state declined to perform DNA testing of Todd's clothing. Instead, they decided to test a blood-stained shirt that Orgill had given Todd to wear the day after the stabbing. (The DNA analysis of that shirt conclusively determined that the blood on it belonged to an unknown person.) The state never tested debris on the knife either.

So, after 14 months had passed, we obtained a court order to have the knife and Todd's jacket sent to an independent lab for testing. That lab confirmed that only Todd's blood appeared on his jacket. The shock for us, though, was learning at that time that the debris reported to have been on the knife when it was first examined by the police was now gone. We then learned that the debris was actually known to be missing seven months earlier while in the state's possession.

It was during this time--when the independent lab was doing this testing--that the Colorado Springs Metro Forensics Lab finally performed the only state-sponsored "crime-scene analysis."

Of course it was too late for them to analyze the debris that had once been on the knife.

When Kimberly Bjorndahl, one of the report's authors, testified, she repeatedly claimed that the victim had but one wound, the fatal stab to his heart, but the autopsy clearly shows that the victim also suffered incised cuts (defensive wounds) to his hand and a cut across the bridge of his nose. The failure to note these basic injuries, of course, raises questions about the adequacy of the resulting analysis, and, in particular, how much attention was paid to the autopsy.

Nevertheless, the report states in its closing paragraph that Brad Orgill cannot be eliminated as Anthony's assailant.

The report reasons, though, that Orgill is less likely to be the assailant because there is no evidence that he'd carried a knife. However, at trial Orgill admitted to carrying three knives in the past, and on one occasion being ready to use a knife should a fight erupt in a bar he frequented.

None of the three knives Orgill admitted carrying were recovered by police when they searched his house.