Fluids, forensics, and frustration

Where Clinton was going with the affidavit is not clear. Shelton’s interpretation is “She was saying that I wanted it to happen.” This has spawned one more fake Clinton quote: “You wanted it, didn’t you?”

The affidavit did not state that Shelton had made up the incident, that she had consented to intercourse with Taylor, or that she had somehow caused Taylor to do what he did. (Obviously, nothing Shelton did took away Taylor’s ability to make choices.)

I think the correct answer is “none of the above.” I have a theory as to Clinton’s alternate scenario, and as to what she hoped to accomplish by consulting with the Brooklyn expert whose name she could not recall when she discussed the case with Roy Reed.

Bear in mind that the part of the tape preceding “Of course, he claimed that he didn’t” is inaudible.

I will start the forensics discussion with a quotation:

And now it is considered probable that the day is approaching when blood identification will become as individual as fingerprints.

This was said in 1950. It was said by Edward D. Radin, a true-crime writer. He said it in Chapter 8 of a book titled 12 Against Crime. That chapter, Invisible Clues, is about Alexander Solomon Wiener, a physician who had collaborated with Karl Landsteiner (1868-1943) in the research that led to the discovery of the Rh factor. Wiener, who was born in 1907 and died in 1976, also worked with the office of the Chief Medical Examiner of New York City for many years. He lived in Brooklyn. Here’s more information:

http://www.faqs.org/health/bios/77/Alexander-Wiener.html

Clinton described her expert as having “shared in the Nobel Prize for his work on the Rh factor.” It was actually Dr. Landsteiner who received that honor, and not for his Rh work, but for his discovery of blood groups.

She also described the expert as having a basement “just absolutely packed with detective magazines.”

Wiener was an honorary member of the Mystery Writers of America.

I accordingly believe that I can state with a reasonable degree of nonmedical certainty that Wiener was the expert with whom Clinton consulted.

The tape is captioned, and this is what the captioning shows as to what Clinton had heard about Wiener:

And so the, sort of the story through the grapevine was if you get him interested in the case then you know, you had the foremost expert in the world willing to testify so that it came out the way you wanted it to come out.

However, according to Alana Goodman’s article about the tapes, Clinton stated:

The story through the grape vine was that if you could get [this investigator] interested in the case then you had the foremost expert in the world willing to testify, so maybe it came out the way you wanted it to come out[.]

The word between “so” and “it” is barely audible, but when I listened closely with the volume up I heard the same word Goodman did: “maybe.”

Now, there could hardly have been a better source for advice on dealing with bodily fluid evidence than Wiener. If Wiener looked at what was left of the undershorts under a magnifier and said the “slight trace” he saw was not enough to test, that was the end of the line.

It was, as Clinton stated to Reed, sad that the crime lab discarded the stained portion of the underwear after testing it. Some crime lab personnel do not grasp that tested evidence is supposed to be preserved, if at all possible, for whatever independent testing the defense may seek to arrange.

The prosecution specifically stated in its Bill of Particulars that the only scientific test conducted was a “test for human blood” by the state toxicologist. From this, we can draw two conclusions: no attempt was made to determine the blood type of the source of any of the fluids, and the medical testimony with respect to Shelton would have simply described a physical examination followed by the viewing of a slide under a microscope, with no lab work being done.

At the time, typing (ABO blood grouping) could be done from other bodily fluids if the person was a “secretor” — someone whose blood antigens are secreted into his or her other bodily fluids. This science was fairly new in 1975. The testing entailed drawing blood from the suspected source for comparison purposes. There is nothing in the discovery responses indicating that a blood sample was taken from Taylor, the juvenile, or Shelton.

Getting DNA information from bodily fluids was a decade away. Googling “Colin Pitchfork” will confirm this.

ABO typing could sometimes rule out a suspect, but could not prove guilt. Shelton knew Taylor, so this was not a case in which a mistaken-identity defense would have gone very far. Under those circumstances, it is understandable that the Arkansas authorities did not go to the ends of the earth with the forensics.

Wiener likely advised Clinton, and could have testified, as to the limitations of whatever testing method the Arkansas authorities had used to determine the presence of blood and semen. He could have testified as to what further tests might have been conducted had the crime lab not discarded the stained portion of the underwear. He represented the state of the art.

The consultation would have, at the very least, enabled Clinton to conduct a more informed cross-examination of the Arkansas toxicologist.

This takes us to the question of what further testing might have shown had the specimen been preserved. I suspect that Clinton thought it might raise a reasonable doubt as to penetration.

Shelton, previously a virgin, had intercourse with the juvenile. Then Taylor decided that it was his turn. The juvenile stated that he heard the victim scream and saw Taylor hitch up his pants. The time lapse between those two events is not stated.

If Taylor took down his pants and got on top of Shelton right after she had had intercourse with the juvenile, but did not penetrate her, her blood and the juvenile’s semen could still have ended up on his body and then on his underwear. (He might have stopped because she screamed, or his whiskey consumption might have impaired his sexual functioning.) Had the semen been tested for blood antigens, it might have turned out that it did not come from Taylor.

A young victim who had consumed alcohol might have had trouble distinguishing between external pressure and slight penetration; both of those things would have hurt a victim whose hymen had just been broken.

And, if Shelton’s general reliability as a witness was problematic, that would have been a further reason to question whether Taylor had gone as far as he initially intended to.

When Clinton returned from Brooklyn, she told the prosecutor “This guy’s ready to come from New York to prevent this miscarriage of justice!” That is the type of statement that is generally not intended to be taken literally; it is sort of like a defense attorney telling a prosecutor “We’ve got the Pope all set to testify as a character witness!” Statements like these are intended to signify a determination to vigorously defend a case at trial.

It is not plausible that a seasoned prosecutor would jump to conclusions about Wiener accomplishing a stunning exoneration. The first question a prosecutor would ask, if the statement were taken literally, would be “What is he going to testify to?” The second would be “Where’s his report?”

The prosecuting attorney, now retired, has defended Clinton’s conduct. Here’s what he said about the aftermath of Clinton’s Brooklyn trip:

We began to scramble and consider the possibility of lesser offenses.

She was just doing her job. She was going to present the best defense she could and she was certainly going to require us to prove his guilt.

https://www.youtube.com/watch?v=Q-XzgbXACGw (4:12)

He also told CNN that Clinton’s first reaction to being assigned the case was “I don’t want to represent this guy. I just can’t stand this.”

http://tinyurl.com/MahlonGibson2CNN2014

She got past that. That is what lawyers are supposed to do when they are appointed on a criminal case.

The criticism reminds me of this exchange from To Kill a Mockingbird:

Lemme tell you somethin’ now . . . you know the court appointed him to defend this ******.

Yeah, but Atticus aims to defend him. That’s what I don’t like about it.

(I am not likening any actual participant in the Taylor case to any Mockingbird character. Tom Taylor was no Tom Robinson.)

Josh Rogin quotes Shelton as follows:

I don’t think she’s a role model at all. . . If she [would] have been, she would have helped me at the time, being a 12-year-old girl who was raped by two guys[.]

And this is what Shelton told Goodman she would say to Clinton:

[Y]ou’ve got a daughter and a grandbaby. What happens if that daughter of yours, if that would have been her . . . ?

You would have protected her. You don’t know me, so I’m a piece of crap to you[.]

That’s not how it works.

The defense of a person accused of a crime is not a judgment as to the worth of the accuser.

A relationship with the victim of a crime would disqualify an attorney from representing the person charged with that crime. There was nothing Clinton could have done to help Shelton; her responsibility was to Taylor, the only person facing a loss of liberty in the proceedings.

Despite the uncertainty about the particulars of the case, it is patent that neither side wanted to roll the dice. Neither Gibson nor Clinton wanted to try the case, not just because of a possible adverse outcome, but because of the prospect of putting Shelton through a trial. Given Clinton’s values and her personal opinion as to the truth of the matter — even if she came to believe that the truth might lie somewhere in between — she undoubtedly dreaded the prospect of cross-examining Shelton and presenting evidence undermining her credibility. The agreement to conclude the case with a plea bargain was probably a tremendous relief to her.

Enough for now…

 

Advertisements

About Norma Chase

Lawyer in private practice. Practice emphasizes family law and appellate work.
This entry was posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor and tagged , , , . Bookmark the permalink.

One Response to Fluids, forensics, and frustration

  1. Brad Power says:

    I very much liked your presentation. I note your reference of “To Kill a Mockingbird” and the need to provide legal representation. In English law Barristers have the “Cab Rank Rule”. If approached in their specialty they have an ethical demand to represent. A long history and it may have extended to prosecuting as well. In the trial of King Charles the First, John Cooke saw it as his responsibility to prosecute (other members of the bar conveniently left town) and the King was beheaded after trial. The return of Charles two as King some years later saw Cooke taken to trial and resulted in him being ‘Hung drawn and quartered’. Tough life for a lawyer! US politics may be less forgiving?? A brief net commentary can be found at http://www.newlawjournal.co.uk/content/pulling-rank The book “The Tyrannocide Brief” by Geoffrey Robertson is a great read for historians.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s