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The expert eye that caught this oversight belongs to Edward Blake of the Forensic Science Associates lab in Richmond. In a report prepared for Tamburello, Brown's lawyer, Blake pointed out that "In her SFPD laboratory report ... Cherisse Boland failed to disclose the presence of a major DNA source. ... Apparently, Cherisse Boland also failed to inform the Grand Jury that indicted [Joc] Wilson and Emon Brown of this fact in her testimony on January 31, 2008."
Blake went on to note that the most prominent DNA profile "has not only not been explicitly disclosed, it has not been searched in national or local DNA violent offender libraries or in the DNA libraries of SFPD personnel who handle, collect, and process physical evidence."
To Blake, a highly regarded scientist who has done extensive genetic research for the Innocence Project, a national legal organization dedicated to exonerating the wrongfully convicted through DNA evidence, this didn't make sense. Didn't the SFPD want to chase down every lead? What if a search of the FBI's criminal database turned up a hit on the unknown genetic profile for a violent felon who lived in Smith's neighborhood?
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"I'm going through this data and looking at this report, and I'm saying, 'What the hell is going on here?'" Blake recalls. Armed with his dissection of Boland's methods, Tamburello and Deputy Public Defender Steve Olmo, who represented Wilson, were able to get their clients acquitted of all charges in a jury trial that ended in February of this year.
Following the trial, Tamburello wrote a letter to Chief Gascón describing his concern that Boland had misrepresented evidence in her report and before the grand jury. "When a supposedly trained criminalist fails to provide a truthful scientific report about her DNA analysis of evidence, and compounds that error by giving misleading testimony before the Grand Jury, we must all question the credibility of the laboratory and supervisors responsible for implementing and overseeing the procedures designed to ensure accuracy and the reliability of DNA testing," he wrote.
"I still get upset about it," Tamburello says today. The grand jurors, he says, "were given information that was false — technically not false, but not accurate or correct. That was, in my mind, criminal."
Tamburello wasn't the only person who had qualms about the legal implications of Boland's conduct in the Brown/Wilson case. In fact, the issues he and Blake raised got the attention of Harmon, who was working as a consultant at the DA's office, where he was guiding the prosecution of cold-hit cases and training young lawyers in the presentation of genetic evidence.
In an interview with SF Weekly, Harmon says he had concluded in a report he issued to the DA's office and SFPD that some of Tamburello's concerns were substantiated, and that there were problems with omission of information in Boland's forensic report. (Citing past contractual obligations with the DA's office, he would not elaborate.) He suggested it be turned over to defense lawyers, since he believed prosecutors would be obligated to reveal it in future cases involving Boland's work. "If I were the prosecutor, I wouldn't hesitate to turn it over," he says.
The DA's office never did so, even after Massullo's ruling. Harmon said he was concerned about the secrecy that has surrounded the document. Harmon says he doesn't know whether the document was shared by the SFPD with auditors from the California Department of Justice, who visited the DNA lab last spring and issued a largely favorable report on its work. The audit made no mention of his findings, although he says "there are many areas in there that could have been affected by my evaluation."
Henderson, the DA's chief of administration — and a rumored successor to Harris when she departs for Sacramento — responded to a Nov. 30 public records request from SF Weekly for the report under the city's Sunshine Ordinance with a letter claiming the office had no such document. Harmon says he is at a loss to account for this statement.
The SFPD has also launched an internal affairs investigation into Boland, according to department spokeswoman Lt. Lyn Tomioka, which has not yet been completed. ASCLD concluded in its own inspection of the lab that Tamburello's complaints were unwarranted, since Boland had disclosed the existence of the unidentified DNA in her report.
In a puzzling shortcoming, however, investigators admitted that they never reviewed her trial testimony, "because the transcript was not available at the time" of the visit. Harmon said this was a serious oversight, and that "you have to read the trial testimony" to understand what Boland did wrong, since aspects of her scientific findings emerged that had not been disclosed in her report or grand jury testimony.
Boland declined to talk to SF Weekly about the case. "I'm really not at liberty to speak about that," she says. "I think the ASCLD report says it all — that [Tamburello's complaint is] unsubstantiated."
In a series of e-mails with Blake of the Forensic Science Associates lab after the trial, Boland justified her conduct by noting that she had identified the unknown genetic profile in both her report and testimony, even if she did not make clear that its contributor's DNA was present in amounts that dwarfed that of either Brown or Wilson.