Wednesday, July 23rd, 2014

The Secret U.S. Forensic Defense of Amanda Knox (Part II)

Jan. 19, 2014

What role did American forensic scientists play in the acquittal of Amanda Knox in Italy? And will their efforts make a different in the new appeal underway in Florence?

This update includes new court testimony from Maine describing the role of BSU professor Greg Hampikian, whose research into the Knox case has been kept cloaked by his university, who has claimed it could be considered an economic trade secret under Idaho law. The parts related to the Knox case are excerpted below, or there is a link to the full transcript for those interested in more detail. This update also includes this letter of professional opinion (published exclusively here for the first time) written at the request of Knox’s defense attorneys by a prominent American scientist who worked at the FBI Crime Lab in Quantico, Virgina for 25 years before going to the University of North Texas. Scroll down to bottom of this post for more context, followed by previous posts on this topic.

BACKGROUND ON THE AMERICAN FORENSIC DEFENSE

After her sensational acquittal October 3, 2011, Knox flew home the next day. The acquittal ruling, however, was later annulled in a scathing 2013 Court of Cassation decision that raised questions about the trial’s validity. Italy’s highest court ordered a new appeal trial, which is ongoing now in Florence.  Immediately after Knox’s arrival back on U.S. soil,  Boise State University biology professor Greg Hampikian went on the public speaking circuit saying he knew what happened, touting his role in “freeing” her.  To get the whole story, I filed a public records request to gain access to his full research and communications on the matter. BSU issued this formal denial, on the grounds that Amanda Knox’s defense falls under Idaho economic trade secret laws and attorney client privilege. After I made my inquiry public here in late October, Washington D.C. trade secrets lawyer Eulonda Skyles published this legal analysis in Trade Secrets Watch, also later picked up by  Bloomberg and Law360 in their reviews of trade secret news.

WHAT’S NEW:  UNDISCLOSED BUT ONGOING

A review of case documentation reveals Hampikian appears to have first gotten involved in the Knox case back in 2009, when he submitted this letter alleging evidence handling had been compromised. The letter was signed by several private sector consultants (known critics of DNA use by law enforcement).

Hampikian’s work on Knox’s defense eventually took him to Italy and has continued after her release, according his testimony and cross examination in another court case, that of Dennis Dechaine, which he worked on as a defense expert in Maine and testified under oath in June and November 2013. The transcripts of Hampikian’s testimony confirms his ongoing work on the Knox case and give context to his area of expertise. View full Dechaine transcript here  or just read the specific exchanges related to Knox, excerpted below.

HAMPIKIAN & THE DECHAINE CASE

In July 1988, 12-year-old Sarah Cherry was kidnapped from a home where she was babysitting near Bowdoin, Maine. Her body was found two days later in woods nearby. She had been sexually assaulted with sticks, stabbed multiple times and strangled with a scarf. The primary suspect was a 30-year-old local farmer, Dennis Dechaine, because significant circumstantial evidence pointed to him.  He was seen coming out of woods where Cherry’s body was found. Rope from his truck, parked nearby, had been used to bind her hands. A notebook and a truck repair bill with his name were found in the driveway of the home from which she disappeared. However,  there was no physical evidence linking the two.  Since the original conviction (the legal battle has been ongoing for 25 years) Dechaine has developed a group of supporters called Trial and Error, who lobby on his behalf.  The Innocence project has also backed his case. Hampikian testified as an expert for the defense, saying that multiple DNA profiles found on some of the evidence  (one of Cherry’s fingernails and a shirt, bra and scarf) could potentially point to someone other than Dechaine. Hampikian stopped clear of accusing detectives and lab experts of contaminating the evidence, but said he was concerned that he couldn’t “be sure that the evidence was properly separated at all times.” Similarities with his position on the Knox case were raised during testimony.  Since BSU is not releasing information about his role, I am publishing excerpts from the court transcripts here, as it sheds light on Hampikian’s ongoing research, which I continue to maintain should be available for public review, given that the laboratory is a state-funded instititution.

—dechaine transcript excerpt start—

Hearing June 14, 2012 before the honorable Carl O. Bradford, Justice of the Superior Court, in Portland Maine.

THE CLERK: State your full name and spell your last name for the record.

A. Dr. Greg Hampikian, H-A-M-P-I-K-I-A-N, as in Nancy.

THE CLERK: Do you — raise your right hand, please. Do you swear that the testimony which you shall give in the cause now in hearing shall be the truth, the whole truth and nothing but the truth, so help you God?

A. I do.

THE CLERK: Please be seated.

DIRECT EXAMINATION BY MR. PETERSON (Dechaine’s defense counsel, Mr. Steven Peterson):

Q. Again, would you state your name for the record,please?

A. Greg Hampikian.

Q. Okay. And, Mr. Hampikian, where do you reside?

A. Boise, Idaho.

Q. Okay. Could you tell us about your educational and professional background?

A. I have a Ph.D. in genetics from the University of Connecticut, I was actually in the same lab as Dr. Carll Ladd. I have post doctoral training under a National Science Foundation Fellowship on sex determination. And I have a bachelors degree in biology and a masters degree in genetics as well.

Q. And what have you done for employment after completing your education?

A. Well, before the Ph.D. I was at Yale University in research, at the medical school. I’ve worked at the Centers For Disease Control in Atlanta. I was a professor at Clayton State in Georgia.And currently I’m a professor at Boise State University with a joint appointment in biology and criminal justice. And I — I volunteer as director of the Idaho Innocence Project.

Q. Of the Idaho Innocence Project; is that correct?

A. Um-hum.

Q. Now, you’ve testified, have you, in other cases like — involving DNA and the like?

A. Yes, and once before here in Maine, yup.

Q. Once more here in — once before in Maine?

A. Yes.

Q. Have you also testified in cases overseas?

A. I have never testified but worked on cases overseas, yes.

Q. Okay. In particular where have you done that?

A. In — in the courts in London, I worked on cases in Dublin, Ireland, and on the Amanda Knox case

in Italy, one case in Italy.

Q, Okay. Now, do you ever testify for the state or for the prosecution in these cases?

A. I’ve never been asked to testify for them, but I do work with police agencies.

Q. Okay. You work with police departments?

A. Um-hum, yes.

Q. And what kind of work do you do with them?

A. My laboratory both trains police officers and people in state crime labs, forensic labs, and

also helps in cold cases, particularly in the areas of mitochondrial DNA analysis that the state labs often don’t do but also with other types of DNA analysis. And recently I helped the French police use a relatively new technique called familial DNA searching in a cold case that they had.

 

CROSS EXAMINATION BY WILLIAM STOKES, FOR THE STATE

. . . . .

Q. That — I guess I’m asking you about your article, in which exonerations involving testing of fingernail evidence almost always involved at least one other piece of evidence resulting in probative exclusions.

A. Yes.

Q. Most often other intimate swabs from a rape kit.

A. Yes.

Q. And we don’t have that in this case.

A. Not at this point, no.

Q. Okay. Now, you said you testified before in a

that you testified —

A. Yes, I remember now that piece of evidence.

Q. That ~ right, that the unknown male on the duct tape –

A. Yup.

Q. — you concluded was not contamination?

A. That’s correct.

Q. And — but then you also — you had some — did you have some involvement in the Amanda Knox

10 case?

A. I did, yes.

Q. And in that case you claimed that–or opined that a piece of clothing that was linked to one

14 of the defendants was the result of contamination?

A. Yes. You’re talking about the bra clasp evidence.

Q. And you said in that case that there was contamination and you blamed the Italian law enforcement personnel?

A. Well, I didn’t blame anyone, I just noted that the evidence was left on the floor for four to six (* this could be a clerk error, as Hampikian likely said “46” which is how many days the bra clasp remained in the house before forensic investigators catalogued it) days and moved around.

Q. Okay. And that was a situation where you would not — you would expect contamination, in fact you opined it was contamination?

A. Likely, yeah.

Q. Likely. And that was a situation where a piece of clothing was left on where, the floor?

A. It was — yeah, on a floor in the room and it had been moved and the person who was found on it was let back into the apartment. So there were a number of difficulties with that piece of evidence.

Q. And — but in this case you say — you don’t think there’s contamination here?

A. No, because we have a control in this case.

Q. And what’s the control?

A. The other fingernail clippings.

Q. You consider that a control?

A. As best as I could hope for in a case like this,

yes.

Q. And so let me see if I get this straight. If on a bloody piece of clothing —

A. Okay.

Q. — you find some DNA in one location but in another location you don’t find it, that’s the control?

A. It’s call a substrate control. In fact Carll Ladd was the guy who taught me it.

Q. And so if you have a contamination — you have DNA on one piece of an object but not on another, are you saying that you’ve got to have contamination on all pieces of the same item?

A. No, you can — I mean you can never rule out contamination or contributors who you don’t detect, but you can take reasonable measures to at least detect overt contamination, at least make that attempt. And that substrate control, reagent controls, what we call negative controls, positive known controls, there’s all

sorts of things that labs do regularly. But on these historic cases you often have to rely –you have to rely entirely on what you’re left with. And you’re only very rarely so fortunate, as we are in this case, to have a second sample processed with the same instrument, the same chemicals, by the same person at the same time and it shows no contamination.

Q. What are you talking about, the same —

A. The other — the other nail clipping, the second nail clipping that was processed that has just the victim on it.

Hearing Nov. 8, 2013 before the Honorable Judge Carl O. Bradford, Justice of the Superior Court,  PORTLAND MAINE

THE CLERK: Would you state your full name and spell your last name for the record.

A. Sure. It’s Dr. Greg Hampikian, H-A-M as in Mary, P as in Peter, I-K-J-A-N as in Nancy.

THE CLERK: Do you swear that the testimony you shall give in the cause now in hearing shall be the truth, the whole truth and nothing but the truth, so help you God?

A. I do.

THE CLERK: Please be seated.

DIRECT EXAMINATION BY MR. PETERSON:

Q. Good morning, Doctor.

A. Good morning.

Q. I know you testified a year and a half ago or so and gave us your credentials, but could you just kind of brief us again as to what your qualifications are as a DNA expert.

A. I’m a professor of biology with a joint appointment in criminal justice at Boise State University. I teach undergraduate and graduate classes in forensic biology, DNA analysis. I’ve worked on cases for about 12 or 13 years, I guess, DNA cases, reviewed hundreds of cases, testified in several states, including here.

Q. Okay. Do you have your own laboratory?

A. I do.

Q. And where is that located?

A. At Boise State University in the biology department.

Q. Okay. And what kind of work do you do at that laboratory?

A. We do a wide array of DNA analysis, mostly human DNA analysis, dealing with Y-STR’s, STR’s, Mini Filer, mitochondrial DNA, some patents that we’ve developed in — in forensic biology, and in cancer as well. So we have a wide array of projects that I group under molecular genetics.

Q. And you even do opinions in some international cases, do you not?

A. Yes. I’ve worked in England, Italy, Armenia, I can’t remember the others, yup.

Q. Okay. And in fact one of the case in the news right now is the Amanda Knox case. Did you work on that case?

A. Yes, I still am, yup.

Q. You’re still working on it?

A. Uh-hum.

—-dechaine transcript excerpt end –

THE EX-FBI SCIENTIST

I have also obtained a second letter on the forensics drafted at the request of Amanda Knox’s defense lawyers, this one by a heavy hitter in the field: Bruce Budowle. Budowle was a senior scientist at the FBI’s laboratory division, where he worked from 1983-2009. He now works at the University of North Texas. In 2010, he wrote this letter of professional opinion raising legitimate questions about the significance of the DNA findings on the murder weapon (a kitchen knife where Knox and Kercher’s DNA was found) during Knox’s first appeal at the request of Knox’s U.S. and Italian lawyers. Budowle’s research is among the sources cited in the independent expert report which led to Knox’s acquittal. But while his letter was referenced in court by Knox’s Rome lawyer Carlo Dalla Vedova, the judge did not allow it to be deposited into the official court file. One thing is clear, however, Budowle’s approach to questioning the forensics is markedly more conservative than Hampikian’s.  There is a big difference in the scientific forensic community between saying “there are no findings that allow one to say for sure is the murder weapon” and “these findings lead us to conclude it is not the murder weapon.”  Budowle raises questions about the meaning of the DNA results, but doesn’t question the results themselves or suggest contamination as Hampikian did. There is an important distinction in legal strategy and backroom diplomacy between these two approaches. In the acquittal that was annulled, Knox’s defense had taken cues from Hampikian’s playbook. This time around, Budowle’s more cautious approach seems favoured.  Could this subtle shift in forensic analysis help Knox, or is it too little too late?

What this latest round of my research into the American influence on the Italian judicial process shows is that Knox’s Rome lawyers – together with Theodore Simon in Philadelphia — made  a concerted effort to bring American opinions to the table. In fact in this interview as Knox was landing in Seattle, Simon himself said it took “a lot of manpower and a lot of help from a lot of people . . . I guess someday the details of that will be fully revealed.” It is still unclear exactly what direct or indirect impact American experts had (or how). But the legal approach is no surprise. What American defendant wouldn’t try to find their own experts to help secure them an acquittal? It is only natural that a high-profile defense lawyer like Simon go this route. And the bottom line is that it may have helped bring her home. But how? And is it backfiring now? Italy’s high court slammed the acquittal decision for its “manifest illogic reasoning” and and assertions with “no factual basis that should not even have been entertained as plausible.”

If Knox is acquitted at the end of this month, the quiet American hand in her forensic defense will be heralded as the turnkey that made the ultimate difference in her case. But if she is convicted, there are legitimate questions to be asked about exactly what public resources were spent on this international defense.

—end new 2014 update –

UPDATE Dec. 15, 2013: Bloomberg and Law360 have picked up on this story in their round up of trade secret news. I initially broke the story about the alleged trade secrets claims with regard to an American university’s role in Amanda Knox’s forensic defense on Oct. 27. It was later highlighted in additional analysis by Trade Secrets Watch.

UPDATE Nov. 15, 2013: Since the story below was originally published a number of legal experts and concerned taxpayers have contacted me about the rejection of my public records request to Boise State University in 2012 for information clarifying the university’s role in the Amanda Knox defense and acquittal. The request revolved around the undisclosed research / communications of BSU forensic biologist Greg Hampikian, a professor who often consults for defense teams on DNA evidence reliability. In 2010-2011, he dedicated considerable time and resources to the Amanda Knox case. BSU, however, denied a public records request to review materials related to the efforts, calling the research an economic trade secret. Eulonda Skyles, an experienced Intellectual Property litigator with Orrick, Herrington & Sutcliffe LLP, has since posted this excellent analysis on Trade Secrets Watch, examining the legal aspects of BSU’s claim: The Role of Alleged Trade Secret Forensic Evidence in the Amanda Knox Murder Case.  When I initially received BSU’s records request rejection for “trade secret” reasons, I thought the university’s position was questionable, but the deadline to file an appeal in Ada County District Court passed while I was in Italy. I decided to post the FOIA rejection in October (see below) because two Northwest members of Congress were holding a congressional hearing on the case and it seemed relevant that an American university might be withholding potentially pertinent information. It has been gratifying to see a legal opinion from an important firm like Orrick–a group of trade secret lawyers with 13 office across the U.S., Asia and Europe–take up the matter. I found Skyles’ last summarizing line particularly insightful: “At the end of the day, it seems ironic that an organization whose mission is to uncover the facts and advocate for the wrongfully accused would prefer secrecy over the cold light of truth.” –END UPDATE

OCT. 27 2013: Two Washington State congressional Democrats (Sen. Maria Cantwell and Rep. Adam Smith) are reportedly hosting a congressional briefing on the Amanda Knox case this week on the eve of the 6-year anniversary of Meredith Kercher’s murder.

Candles on the Perugia cathedral steps in the days after Meredith's murder. Photo: A. Vogt

The congressional “expert panel” consists of consultants and volunteers who have been campaigning on Knox’s behalf. Those interested in an unfiltered perspective should spend some time reading the most complete collection of translated court documents at the wiki-type document drop site here: http://themurderofmeredithkercher.com/Primary_Sources

But if Northwest lawmakers are really serious about digging into the details of the Knox case, they should also be asking hard questions about the use of U.S. public taxpayer resources for her defense. My own Freedom Of Information Act requests –going back to 2010 – continue to be delayed or denied with regard to the use of state and federal resources for the international defense of Ms. Knox.

A team of Italian lawyers have represented the Seattle woman in Italian court since 2007. But there is also an American team of consultants and lawyers working behind the scenes in the U.S. to buoy her defense. At least one American university’s laboratories and resources were used to aid in Knox’s  acquittal, which was later annulled by Italy’s Supreme Court due to judicial irregularities.

Yet Boise State University lawyers refuse to reveal the full nature of the correspondence and research carried out  by BSU forensic biologist and nationally-known DNA expert Greg Hampikian, whose research is cited in Wikipedia and elsewhere as the main reason Knox was set free.

Shouldn’t a state and federally funded university be required to release records related to such a high-profile international case? Not according to them.  Boise State University General Counsel Kevin D. Satterlee cited this as one of the reasons to deny my public records request to review the case:

“The product of Dr. Hampikian’s work on Ms. Knox’s defense constitutes unpublished information that is not readily ascertainable and has been the subject of reasonable efforts to maintain its private nature. Such information is of potential economic value and is thus recognized as a trade secret under  Idaho Code 9-340(D)1.”

Click Here to read the full BSU FOIA Denial (and click here for page 2) and to view the complete details of my request.

Greg Hampikian (right) discusses Knox on CNN

Yet despite BSU’s claims that the details of the research should be cloaked because it is an economic trade secret (BSU also argued it was covered by attorney-client privilege), Professor Hampikian has continued to discuss the case on the public speaking circuit in the U.S. in the two years since Knox was freed.  He often tells his audiences “I know what happened,” while arguing Rudy Guede acted alone, though multiple Italian courts have consistently ruled there were others present. Since the high court in Rome annulled Knox’s acquittal and another trial is going forward in Florence, any congressional briefing on the case should include close scrutiny of Hampikian’s research and the true extent of American legal and academic involvement in the trial since deemed flawed by Italy’s Supreme Court. It is no secret that Hampikian has been feverishly working on the Knox’s defense.  It was his own public declaration of “I know what happened” that triggered my initial curiousity about BSU’s exact role in the case, and led to my filing of the FOIA to see for myself. Having reported for years on higher education in Idaho in the ‘90s, I knew the state’s open records laws were broad enough that much of Hampikian’s correspondence on the matter should be available for open record review. I did not expect university lawyers to deem the Knox defense an economic trade secret. But nothing galvanizes a reporter like being denied information, so I dug a little further on my own.  Here’s what I found:

BACKGROUND

Hampikian, who is director of the Idaho Innocence Project, began working quietly on Knox’s behalf in 2010, shortly after her initial conviction in an Italian court. He met several times with Knox’s family members, circulated a petition among the international forensic scientist community, and traveled with Knox’s family to Perugia as a new U.S. team was crafted to work on Knox’s appeal and aid her two Italian lawyers. Renowned Philadelphia criminal defense attorney Theodore Simon came on board, but it was Hampikian who led on forensics. In presentations, Mr. Hampikian recounts a series of experiments he and his research team conducted in his Boise lab: Researchers collected Coca Cola cans that had been used by employees who worked in the BSU Dean’s Office. They also bought a cheap set of knives, still in the package from a dollar store. They then collected and tagged the cans and knives only changing gloves between every other piece of evidence. The result? One of the dean’s office employees’ DNA was unknowingly transferred from a can to a knife that she had never seen or touched.   “That’s what happened with the evidence in the Knox case,” he was quoted as saying in one article.   In conferences and events, he gives a power point presentation that is a mix of Forensics 101, police video of Italian forensic cops mishandling the bra clasp on the crime scene in Perugia, clips of himself on CNN and pictures of he and Amanda in Seattle and in Idaho, on a river rafting trip.

But even as Hampikian continues to speak publicly on the matter throughout the country, the request to review the paperwork associated with Hampikian’s actual involvement was denied. Under U.S. public records laws, and specifically Idaho open records laws, Hampikian’s public university email address should normally be subject to review as should correspondence related to experiments in which public laboratories and resources were used. The BSU records denial letter is a questionable interpretation of the law, sunshine law experts say.

“It is well-established law in Idaho that the work-related emails of public employees are public records, and it is surprising that the university would claim a professor’s emails constitute trade secrets or anything of the sort,” said Betsy Russell, president of the Idaho Press Club and Idahoans for Open Government.

Russell cited another “clear and recent example” of release of such records elsewhere in the state, citing the University of Idaho’s release of emails from its late professor Ernesto Bustamante, in response to public records requests regarding the Benoit-Bustamante murder suicide.

THE RHOADES ERROR: IDAHO

Hampikian is a prestigious professor with an unquestionably impressive CV, but a review of the cases he’s worked on reveals at least one high-profile mistake. In Rhoades v. Arave, Hampikian was bought in in 2005 as a consultant for Paul Ezra Rhoades, convicted for the shooting death of Stacy Baldwin, Susan Michelbacher and Nolan Haddon in eastern Idaho in 1987. In 2005, Rhoades’ defense hired Hampikian to review an 18-year-old FBI report, in hopes of casting doubt on its reliability. Hampikian concluded that the old FBI report excluded Rhoades as the murderer. But a U.S. District Court later found that in his affidavit to the court Hampikian had misread one of the swab results, referring to the DNA subtyping as “sub 1-” instead of “sub 1+.” The court asked Hampikian to explain, and Hampikian submitted a new affidavit admitting the mistake, calling it a typographical error. The court pointed out that even if the state’s DNA evidence were eliminated,  the other incriminating evidence still remained strong.  In a 34 page ruling, the petition for writ of Habeas Corpus was denied. Rhoades was executed in Idaho by lethal injection in Nov. 2011. Ref: Rhoades v. Arave (CV 93-0156-S-EJL), March 28, 2007.

THE CHILD RAPE CASE: OHIO

In an Ohio case (State vs. Roberts) Hampikian conducted a DNA test on behalf of Bradley Roberts, who was appealing the conviction of 1993 kidnapping and rape of a 10-year-old girl in Sylvania, Ohio.  The case was unsolved for many years, although evidence was collected. In early 2010, Sylvania detectives sent the rape kit evidence for analysis, citing advances in technology. A match came back to Roberts, whose DNA had been collected and entered into a statewide database because of previous convictions. Roberts was convicted. In 2011 his defense hired Hampikian, who argued that the DNA tests were insufficient to establish beyond a reasonable doubt that the appellant had committed the crimes against the victim. The state brought in Casey Agosti, a forensic scientist considered an expert in DNA analysis. Agosti determined the likelihood or someone other than Roberts matching that same DNA profile was one in 1 billion 197 million. The court then wrote: “Hampikian’s opinion letter referencing his interpretation of DNA tests performed by the state is framed with speculative conditions and conjecture. The conclusory opinion letter simply was not exculpatory. As such maintaining that the introduction of the equivocal Hampikian opinion letter would have altered the outcome of the case is likewise conclusory and not persuasive.” Roberts is currently serving a life sentence. Ref: State of Ohio v. Bradley W. Roberts (No. L-11-1159) March 22, 2013.

THE  STOCKING STRANGLER CASE: GEORGIA

Hampikian was also hired by the defense of the Stocking Strangler Carlton Gary, who some believe is unjustly on death row in Georgia.  Gary was convicted in three of seven rapes and stranglings of Columbus Georgia women in the late 1970s.  Though Hampikian consulted for some time for free, in 2010, Gary’s defense team filed a motion asking the court to authorize paying Hampkian $200 an hour for his services (not to exceed $7,500).

Most American universities encourage their professors – especially attention-attracting ones like Hampikian – to do outside consulting, however academic institutions also have specific conflict of interest policies that prohibit institutional resources and labs being used for personal gain. I believe BSU needs to answer a few more questions about its role in this case. If the research was public and not-for-profit, then emails and written correspondence should be made available. If it was private, then how does it mesh with BSU’s conflict of interest and ethics guidelines?

This point has little to do with the guilt or innocence of Amanda Knox – there is an appeal trial underway and even once there is a decision, Italy’s highest court will still have to review it. The courts may or may not agree with Mr. Hampikian’s specific assertions about the forensics in the case.

However the fact that BSU lawyers interpreted Idaho law in a way to avoid revealing Hampikian’s correspondence on the Knox case strikes me as significant.

It raises the following questions: Do U.S. citizens have the right to know if public university resources, labs and funds were used (and how) to aid the defense of a private citizen accused abroad of murder, justly or unjustly?  What are the parameters for this kind of advocacy?  When should public universities be allowed to come to the aid of those imprisoned at home or abroad, who decides who gets help and who doesn’t, and how transparent should those university efforts be?

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