Depraved Indifference: DNA testing and the pardon of Delmar Partin

I’ve read several comments in the press now stating DNA testing was not available in 1993 and that is why the former governor of Kentucky pardoned Delmar Partin.

That is not true.

Yes, the governor did pardon Delmar Partin, but here is why:

“given the inability or unwillingness of the state to use existing DNA evidence to either affirm or disprove this conviction.”

Understand this: Bevin is stating the Commonwealth of Kentucky is currently unable or refusing to test existing DNA that could bring closure to the case. It has nothing to do with the availability of DNA testing from the 1990s.

But know this: DNA testing was available at the time of the trial in 1994, and before.

Barbara Wheeler was assigned to the Trace Evidence section of the Kentucky State Police Central Forensic Lab during 1993 and 1994. Wheeler’s training consists of a bachelor’s of science degree, some FBI training and the completion of a course given by the Crime Institute (instructors formerly with the FBI.) Here are several excerpts from her testimony that discuss DNA testing for this murder case:

Barbara Wheeler: I located hair on Exhibit 11 which is two rubber gloves from the barrel of at scene, on Exhibit 14 which is a section of ceiling tile from the scene, on exhibit 18 which is paper towels from the kitchen trash, on exhibit 31 which is a steel pipe, on exhibit 49 which is the shirt form the victim, also on exhibit 26 which is an ice scoop from the scene, there was also head hair fragments on exhibit 6 which is a hair collected from the left hand of the victim (pauses) and there was also hair in exhibit 45 which is one plastic wrapper from the barrel of the scene, and exhibit 56 which is a pocket knife.

Tom Handy: And that’s all the ones where the hair was found, correct?

Wheeler: Yes sir.

Handy: Now look, lets talk about the exhibits of 45 and 56, those are, you said, ‘fragments of hair’?

Barbara Wheeler goes on to explain,

“When I’m referring to a fragment, this means that the hair itself does not contain the root portion, the part that is actually in your scalp. A lot of time if hairs are extremely small or if it is just a fragment they’re too limited for any comparison value. One of the first things that we will do is determine what part of the body that the hair come from and on both of these I was unable to determine a possible body part, and this is one of the things that we use for comparison value or not. Is it head hair, or if it might be a pubic hair, these were too small and too limited in characteristics.”

Handy: Does that same result of fragment being too limited to examine also apply to other fragments found in exhibit 11, 31 and 49 which were rubber gloves, a steel pipe and victim’s shirt?

Wheeler: Yes sir. Some of the hair in exhibit 11, 31 and 49 was also too limited.

Handy: Now were you able to find hair on exhibits that matched the hair standard of Betty Carnes?

Wheeler: Yes sir.

Handy: On what items where those found?

Wheeler: On exhibit 11 which is two rubber gloves form the barrel at the scene, on exhibit 14 which is a section of ceiling tile from the scene, exhibit 18 which is paper towels from kitchen trash, exhibit 31 which is a steel pipe, exhibit 49 which is the shirt from the victim and also head hair fragments in exhibit 26 which was the ice scoop from the scene. These were all similar to Betty Carnes in the barrel, standard: my exhibit 22.

Handy: Are you able to tell this jury how many characteristics of Betty Carnes’ hair you were able to determine in checking the standard? Her standard?

Wheeler: No sir. We don’t have a number value as far as the characteristic that we look for.

Now let’s stop right there. The expert, Barbara Wheeler, says some of the hairs in the kitchen trash matched the head hair standard of Betty Carnes. Sounds terribly damning, doesn’t it?

Not so fast. The use of hair standards as evidentiary proof has resulted in the wrongful convictions of hundreds or thousands of people nationwide. Consider the following:

“The (FBI) agency’s misuse of hair evidence to convict people is “a national tragedy” and a violation of human rights, said Frederic Whitehurst, the whistleblower who revealed scientific misconduct including flawed hair analysis at the FBI laboratory in the 1990s. ‘We go into court with unvalidated science,” Whitehurst said. “We know it’s unvalidated science. The world of science is saying this is not valid, and we actually use this pseudo science against citizens of this nation.'”- Flawed hair evidence leads to convictions, USA Today, April 2017

Or this from law professor Brandon Garrett of University of Virginia:

“When I looked at forensics in DNA exoneree trials, I found more often than not that the testimony was unscientific and flawed. We know that whenever we look at old criminal cases we see flawed forensics wherever we look. And yet hardly any crime labs have bothered to conduct audits. Nor is the problem limited to bad hair cases—much the same type of eyeballed comparison is done on bite marks, ballistics, fibers, and even fingerprints.”

Or this chilling headline from Wisconsin Watch, part of the Wisconsin Center for Investigative Journalism:

“FBI admits errors in 90 percent of hair and fiber cases, including 13 in Wisconsin. Such errors are now a factor in one-fifth of all DNA exonerations.”

So what about DNA testing in this case?

Tom Handy: Is there any further testing that could have been conducted on that hair fragments that you have?

Barbara Wheeler: No sir.

Handy: Such as DNA?

Wheeler: If you’re referring to hair fragments, DNA cannot be done on these. To perform DNA analysis on hair you need the root end of the hair with tissue attached, and head hair fragments would not have the root end.

Handy: Did you find hairs there that did not match that of Betty Carnes?

Wheeler: Yes sir.

Handy: And where were those found?

Wheeler: Exhibit 6 which is hair collected from the left hand of the victim, exhibit 14 which is the section of ceiling tile form the scene and exhibit 18 which are paper towels from the kitchen trash.

Handy: So some exhibits had some of different things, some that you could match and some that you could not?

Wheeler: Yes sir.

Under examination by defense attorney William “Big Bill” Johnson, Barbara Wheeler provides more information about the hair collected from the hand of the victim:

Bill Johnson: Item 6 was ‘hair collected from left hand of victim.’ How many hairs were there?

Wheeler: There was one hair.

Johnson: Now this was, could you tell where it was a head hair?

Wheeler: Yes sir.

Johnson: Did it have a root on it?

Wheeler: Yes sir.

Johnson: Now that could have been checked through DNA process?

Wheeler: Yes sir, if there were standards available to compare it to.

Johnson: Did anyone request a DNA test?

Wheeler (looks at notes): Yes, it was on the original 26, a request for examination.

Johnson: Was it examined?

Wheeler: No sir. Not specifically, this item was requested…

Johnson: I’m sorry?

Wheeler: This item in particular was not requested. There were several other blood exhibits that were requested for possible DNA.

Johnson: …and were they tested?

Wheeler: I don’t believe so.

Johnson: Why? If you know…why do you request them and they not be tested if you know?

Wheeler: You have to ask Eddie Taylor the conventional serologist, or, hair analysis would be done first and only then would DNA be done in addition to it and Eddie would know if there was any samples that should have been sent in for DNA.

Let’s talk about Edward Taylor Jr, who was employed by the Kentucky State Police Forensic Lab in Frankfort.

Eddie Taylor states at trial, in addition to his bachelor’s degree, he “also received specialized training. This specialized training was in bio-chemical methods and blood stain analysis and forensic serology, the identification of hairs and fibers. This training was conducted at the FBI academy in Quantico, Virginia.”

Eddie Taylor’s specialized FBI training and Barbara Wheeler’s tutelage under the FBI and instructors formerly employed by the FBI presents a major problem for prosecutors within the Commonwealth of Kentucky. Michael Tennant of The New American, states, “Even if things are cleaned up at the federal level, there is still the problem of the 500 to 1,000 state and local crime-lab analysts who were trained by the same FBI examiners who gave the flawed testimony. Efforts are under way in a number of states to review their hair-examiner cases.”

Those efforts are NOT being made in the state of Kentucky.

So what does forensics expert Eddie Taylor have to say about DNA testing the blood found in the Betty Carnes murder case?

Bill Johnson, defense attorney: Did you conduct or have conducted a DNA examination?

Eddie Taylor: No sir, I did not.

Johnson: Now the DNA examination is an examination or test that can be used to determine the genetic makeup of a substance including blood?

Taylor: Yes sir, that is correct.

Johnson: Was there any reason you did not do a DNA examination?

Taylor: There was first of all, not enough blood or tissue present on anything to conduct an analysis for DNA.

Johnson presses on later in the testimony:

Johnson: Did you ask anyone else to look at it to see if perhaps they could determine the origin?

Taylor: No sir, I did not.

Why didn’t the Commonwealth perform DNA testing in 1993 on the hair with the follicle found in the victim’s hand? More importantly, why won’t they test it now? 

You know what is most telling about those at the highest levels of state and federal government who are now shouting for an investigation into Bevin regarding his pardons? They want Bevin investigated- NOT the cases the pardons were given over. Those who protest too much: are they former defense attorneys? Are they trying the deflect investigators from looking too deeply into their own past?

How many on Death Row in Kentucky will someday have the same proclaimed about them as Claude Jones did?

“DNA Test Proves Critical Hair Evidence in a Capital Murder Case Didn’t Match Man Executed.” – The Innocence Project, Cardozo School of Law

Thankfully, upon leaving office, former governor Bevin stressed that “the state should make every effort to bring final justice for the victim and her family.” The case should now finally be reopened and the true perpetrators sought. If it is not, investigate those who refuse to do so, and find out what they have to lose by this case, or others, being reexamined.

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