The Secret U.S. Forensic Defense of Amanda Knox
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.
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.”
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:
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?