Montana Innocence Project client Bernard (“Bernie”) Pease Jr. appeared before Yellowstone County District Judge Thomas Pardy for an evidentiary hearing Thursday.
MTIP Legal Director Caiti Carpenter and pro bono counsel Toby Cook called five expert witnesses who contextualized the results of DNA testing in Bernie’s case and demonstrated how the sciences used to convict him were invalid. The hearing primarily focused on two items of evidence: a condom found in the Pease family’s business and a hair found on a condom at the Pease residence. In 1984, testimony about these items of evidence relying on false and outdated sciences sent Bernie to prison for nearly 40 years. Yesterday, Bernie had the advent of DNA testing and an understanding of the prevalence of false convictions on his side.
Degraded evidence
Two expert witnesses testified to the results of DNA testing on the condom: Danielle Reed, the analyst who conducted DNA testing, and Dr. Carlos Bustamante, an expert in the field of population genetics.
Reed noted that the condom was “[in a] very degraded state…very broken down.” As a result, she was only able to retrieve less than half of the information she sought. Reed still reported findings despite the degradation and limited data retrieved, but Dr. Bustamante testified these factors would make it “a bit of a compromised sample” that he would be “mistrustful of.”
Questionable methods
Reed’s testing revealed that Bernie and the victim could not be excluded from the mixture of DNA present on the condom. Reed testified regarding the likelihood statistics she obtained, which reference the likelihood of someone’s DNA being present. She ran the software using two databases of genetic profiles: one using a generalized population database and another including DNA samples representative of the Apache and Navajo tribes. The first found it was 19,000 times more likely Bernie and an unrelated person contributed the DNA to the condom than two unrelated people. The second found a much greater likelihood.
Dr. Bustamante’s testimony called into question the reliability of these findings because Bernie and the victim have many shared alleles. He testified to an issue in genetic testing called “closed communities,” which are ones with significant shared DNA. He testified that “the numbers are probably not correct” when testing two samples from potentially the same closed community and that the technology that completes the calculation would likely overestimate because it is unable to view them as independent of each other. He said, “you cannot draw accurate conclusions if there are shared alleles.” Dr. Bustamante also testified to the literature about tribal genetic testing. He said that tribal databases other than Apache and Navajo largely do not exist and that there are open questions about how to accurately calculate likelihood ratios for Native Americans. Bernie is a descendant of the Crow tribe. The victim was also Indigenous but her tribal affiliation is unknown.
Non-human hair
The other piece of evidence central to Thursday’s evidentiary hearing was a hair found on a condom at the Pease residence. At Bernie’s trial, the State and then-Montana Crime Lab Director Arnold Melnikoff argued that the hair was the victim’s pubic hair.
Katherine Korecki, the analyst who examined the hair, testified that it contained a geometric pattern that is not seen in human hairs. She testified that any experienced hair analyst should have known it was non-human. Korecki also identified the hair as being white in color, contradicting Melnikoff’s trial testimony that it was brown.
Once the hair was confirmed to be non-human, DNA analyst Gloria Dimick tested for the specific origin of the hair. She testified that “the sample was determined to have a 100% match for the felis species,” meaning it belonged to a cat. She similarly found the hair to be “very thin, pale, and translucent.”
Peter Neufeld, Innocence Project co-founder and expert in the intersection of forensic science and wrongful convictions, testified to the history of Melnikoff’s false testimony in Montana. Melnikoff provided expert forensic testimony in three cases that were later overturned using DNA testing–all three taking place in the 1980s near the time of Bernie’s wrongful conviction.
Neufeld also testified to Melnikoff’s specific wrongdoings in Bernie’s case.
“He took a hair that everyone said was clear or white and said it was red and brown,” Neufeld said. “Given the frequency that he was wrong and the way he was wrong, it is likely that he was [not only] making up the numbers, [but also] making up the color of the hair. … [It was either] gross incompetence or negligence on his part. … It’s not just misleading; it’s very dangerous.”
Junk science and wrongful convictions
Wrapping up the hearing, Neufeld provided testimony about the ways in which our criminal legal system perpetuates the use of invalidated or “junk” sciences to convict people. He detailed findings from numerous studies he was involved with, including one that found the FBI “exceeded the limits of science” in 90% of the examined cases where hair microscopy was conducted. He also discussed the weight juries give to expert testimony, asserting that when a witness is classified an expert and “walks up in a lab coat,” their testimony is more highly regarded.
Bernie was accompanied at Thursday’s hearing by his sister and biggest advocate Linda Thomas.
“I feel really good about the testimonies because the witnesses validated everything we’ve been saying and struggling with for 40 years,” Linda said. “We knew the State was lying about evidence just to get a conviction. It was a good day. It’s amazing what good lawyers can do for a wrongfully convicted person. I will be forever be grateful for Toby and Caiti as well as the whole Montana Innocence Project staff!”
Judge Pardy set a post-hearing briefing schedule that will conclude in October with a ruling to be expected thereafter.