Monday, October 8, 2012

Hughes News: Fraud on the Court (Part 1 of 2)

James Bolding told the jury he found blood on Preston's clothing. James Bolding thereby committed a fraud on the court and on the people of Texas.

I intended to hold this story until it was time to present Bolding's trial testimony. The information now turns out to be critical for reasons that will become known quite soon. I therefore now present my case that James Bolding, supervisor of the Houston Crime Lab serology section, defrauded the court and the people of Texas.

Despite Bolding's testimony, there was no blood on Preston's clothing. Bolding knew that to be so. Not only was he the supervisor of the serology division, he may have conducted the very test that disproved the presence of blood.

In this post, I'll discuss the test results. In the next, I'll discuss Bolding's testimony. I present the test results below.

The form was apparently used by the crime lab to summarize the results of blood and/or semen testing. The form is dated 4-28-89. That is 218 days after the murder, and just 4 days before Bolding provided his deadly testimony.

The case number on the form, L89-4594, corresponds exactly to the case number referenced by Bolding in his supplemental narrative to the HPD reports of the Hughes case. In that supplemental narrative, he makes clear that he received the items on 27 April, one day before they were tested.

According to Bolding's supplemental narrative, he received more items for testing than indicated in the form above. Obviously missing from the form above (or any other form provided in response to an open records request) is the knife and its sheath. I'll limit the discussion herein to just those items shown in the form. The items to be tested consisted of:
One purse strap (discovered near Marcell)
One beer can (the "fresh" Busch beer discovered near the bodies)
One pair of bloody white shoes (Shandra's shoes)
One pair of bloody white shorts (Shandra's shorts)
One pair of blue jeans (Preston's jeans)
Two blue works shirts (Preston's shirts)
One red shirt (Preston's shirt)
One chain (Shandra's gold chain)
Money (Shandra's one $5 and five $1 bills)
Ring (owner unknown; name Avon engraved)
Paper (note from Shandra's pocket; "Dog" & phone number)
Only two of those items were tested for blood: Preston's blue jeans and one of Preston's blue work shirts. The jeans and the shirt were subjected to a series of three tests:
a screening test,
a confirmatory test, and
an anti-human test.
I'll discuss each in turn.

Screening tests are used when blood is not apparent or when blood is not easily discriminated from other stains. Screening tests are easy and inexpensive to conduct. They are used to indicate where more complex and more expensive confirmatory testing should be conducted.

Screening tests are quite sensitive to blood. Unfortunately, they are also quite sensitive to a number of other substances. Screening tests are therefore presumptive. If the results are negative, it is almost certain no blood existed on the item tested, at least in the area tested. If the results are positive, something that reacts to the screening agent was on the item. That substance detected may or may not be blood.

According to the form, the screening tests consisted of subjecting the clothing (or a swab from the clothing) to ortho-tolidine (aka o-tolidine) and/or phenolphthalin (not phenopthalein). These reagents are colorless dyes that become colored in the presence of hemoglobin, peroxidases (a family of enzymes found in fruits and vegetables), and/or metal salts and oxides (such as rust).

Ortho-tolidine is particularly susceptible to false positives. Some foods that have tested positive are asparagus, avocado, green beans, broccoli, Brussel sprouts, cabbage, carrots, cauliflower, celery, corn, cucumbers, eggplant, garlic, lettuce, okra, white onions, green onions, bell peppers, Irish potatoes, sweet potatoes, radishes, spinach, yellow squash, tomatoes, and turnips. Some inorganic substances that have tested positive are rust, iodine, copper salts, nickel salts, and some bleaches.

Phenolphthalin (a great spelling bee word) is somewhat less sensitive to blood than is ortho-tolidine, but it is also less likely to result in false positives. Some foods that have tested positive are apples, apricots, beans, blackberries, Jerusalem artichokes, potatoes, radishes, carrots, beets, horseradish, broccoli, cauliflower, turnips, cabbages, cucumbers, corn, dandelion root, and onion. Some inorganic substances that have tested positive are iodine and the salts of heavy metals such as cooper, lead, and iron.

Despite what it says on the form, Bolding may have used neither ortho-tolidine nor phenolphthalin. According to his trial testimony, assuming we can believe anything he said, he used a "fluorescent reagent that reacts only in dark." That would probably be luminol or possibly fluorescein. From Forensic Biology: Serology and DNA:
In any case where blood is suspected, the analyst must first determine what areas of an item of evidence may possibly contain blood. While the color change presumptive tests are good indicators for the presence of blood, they are not practical for testing whole items on which no stains are visible. ... For this reason, the luminol and fluorescein tests are used to indicate nonvisible blood stains. [Note: no stains were visible on Preston's clothing.]
Luminol is a chemical presumptive test that, instead of producing a color change reaction, causes stained areas to emit light which must be observed under ‘black’ light. Fluorescein also causes a light reaction but the fluorescence must be observed using an alternate light source. Either luminol or fluorescein can be sprayed onto large surfaces such as walls or floors and the positive areas marked for further testing. Both tests are very sensitive and will indicate bloodstains that may not be visible. Positive areas should be marked and photographed immediately because the light reaction is not permanent and will fade. 
One disadvantage to these tests is that both can have false-positive reactions. Luminol and fluorescein will react with the same false positives as PH [phenolphthalin] and also with bleach and other cleaning fluids, which may interfere with blood detection on surfaces that have been cleaned.
The paragraph breaks in the excerpt are mine, for your reading convenience.

Luminol (and presumably fluorescein) also prompts positive reactions in rust, iodine, fonnalin (used for preserving tissues) potassium permanganate (found in some dyes), potassium dichromate, nickel salts, copper compounds, and cobalt. Some of these items can be found in tap water, dirt, and blue jeans.

Luminol (and presumably fluorescein) is particularly reactive to copper (such as the rivets on blue jeans), bleach, enamel paint, turnips, parsnips, horseradish, and furniture polish. It is presumably reactive to all the food items that respond to phenolphthalin. It reacts less dramatically to cigarette ash and smoke. Preston  Hughes smoked.

It is therefore not particularly surprising or insightful that the screening tests returned positive. It is absolutely wrong to say, however, that they returned positive for blood. More frequently, such a test will be reported as indicative of blood. That's not much better. The test is also indicative of potatoes. The test is also indicative of copper. The test is also indicative of tobacco. The test is also indicative of bleach.

Screening tests are, however, never reported to the jury in such innocent fashion as "indicative of onions." Though the lab is supposedly a scientific body having no interest in the outcome of the case, the lab personnel almost always testify in a fashion most damaging to the defendant. They almost always testify for the prosecution, they most always testify that the screening test is indicative of blood, and they leave it to the defense to try to convince the jury otherwise.

The unbiased, scientific purpose of the screening test was to help Bolding, or whomever actually did the testing, to identify areas worthy of more complex, more definitive, confirmatory testing. Since the screening test returned positive, the lab quite properly followed with a confirmatory test. Specifically, they followed with a Takayama hemochromogen test. From the National Forensic Science Technology Center:
Many different tests have been used to confirm that a stain contains blood. The oldest is chemical confirmation of the presence of hemoglobin or its derivatives by the formation of specific crystals. For example, the Takayama or hemochromogen test, in which ferrous iron from hemoglobin reacts with pyridine to produce red feathery crystals ... 
In other words, the lab added a bit of pyridine to the areas that returned positive on the screening test, and watched for the growth of red feathery crystals.

No such crystals appeared.

The confirmatory tests were negative.

To see that the confirmatory tests were negative, look again at the form. In the two boxes where the lab would record the results of the confirmatory tests for the jeans and shirt, you will see two dashes. Now look at the upper left of the form. There is a legend there. The legend instructs that a positive result will be noted by use of the letters "pos" or a plus sign ( + ). The legend further instructs that a negative result will be noted by the letters "neg" or a minus sign ( - ).

Those are not dashes in the confirmatory test results box. Those are minus signs. The tests were negative. When Preston's jeans and shirt were subjected to a confirmatory test, one that would discriminate blood from all those other substances, the results came back negative.

Somehow, the jury would never hear this. Somehow, Bolding would (with the assistance of the prosecutor) dance around this point. Somehow, the defense would never ask a sufficiently pointed question to get Bolding to tell the jury that the confirmatory tests were negative for blood.

And now, if you are sufficiently skeptical of the State's motives, you can understand why the testing was not done until just before the trial. The testing was withheld until after discovery.

Discovery is the process when the defense requests all the inculpatory and exculpatory evidence the State has in its possession. The State is required to turn over all such information, but they clearly can't turn over what they do not have. If they had tested the jeans and shirt earlier, they would have been required to provide the results to the defense. The defense attorney would have had the test results form shown above available to him before he cross examined James Bolding. The defense attorney may have needed to do some research or consult an expert to understand the form, but he would have had time to do so, assuming he cared.

The State was still not off the hook though. It was still required to provide the defense all inculpatory and exculpatory it gathered after discovery. It this case, it did so by calling the defense attorney on the phone, telling him that they had tested the clothes and the testing indicated the presence of blood. They did not tell him that the confirmatory tests were negative. They did not provide him with the form you see above.

The State abetted and possibly probably encouraged Bolding's fraud on the court.

But it gets worse.

After finding no blood during the confirmatory testing, the lab conducted an antihuman test to determine whether the blood that they did not find was human or animal. It makes no sense of course to do such testing, unless you wish to use the expected non-result for nefarious purpose.

One of the fundamentals of an antihuman blood test (also known as the precipitin test) is that blood be present for testing. Assuming you have found some blood to be tested, you place some human antiserum in the bottom of a capillary tube and then you place some blood above the human antiserum. Assuming there is blood to be tested, and assuming the blood is human, then a cloudy ring will form between the two layers. If no cloudy ring forms, then whatever was tested was not human blood.

In the form, Bolding (or whomever) reported the antihuman test results as negative. In other words, no cloudy ring formed between the antihuman serum and whatever it was they placed above the antihuman serum. In other words, the test found no human blood.

The HPD crime lab may therefore attempt to defend its antihuman testing of Preston's jeans and shirt by arguing that they used the test simply as a second confirmatory test. If a cloudy ring had formed, then they would have detected human blood, even though the Takayama confirmatory test did not detect blood of any sort.

If that was their intent, then Bolding should have informed the jury that the lab conducted two confirmatory tests for blood and that neither detected any blood. He did not. He used the antihuman test to tell the court and the jury that he followed up the screening test with another test, and his follow-up test did not reveal whether the blood they found was animal blood or human blood.

The framing of Preston Hughes began when the HPD fabricated the tale of Shandra's dying declaration, continued during the HPD investigation of the case, and continued during Preston's trial. As it turns out, the framing now seems to have continued after the trial.

It is that possible post-conviction framing I will be writing about soon. First, however, I will write of James Bolding's testimony.

Stay tuned.