It took nearly two decades for anyone outside of law enforcement to discover that an Orange County Crime Lab official aided one prosecutor in winning a murder trial with sworn forensic scientific testimony and a year later altered her opinion to help a second deputy DA prevail in a separate capital case without jurors knowing of the switch.
That revelation, which the Weekly first reported in 2016, should have alarmed the county’s top law-enforcement officials, District Attorney Tony Rackauckas and Sheriff Sandra Hutchens. After all, Rackauckas and Hutchens have taken oaths to act honorably in their powerful government offices. They also describe themselves as guardians of the criminal-justice system.
But Rackauckas and Hutchens, already instigators of a nationally embarrassing jailhouse-informant scandal, are employing a glitch in California’s penal code that allows them to hide post-conviction evidence of law-enforcement cheating, even in death-penalty cases. The move helps to keep the public in the dark about the pro-prosecution biases of Mary Hong. With authorities unconcerned about her role in the scandal, Hong nowadays runs crime labs for the California Department of Justice.
The controversy centers on two unrelated 1985 Anaheim rape/murders. Daniel Gammie, the original criminalist on the cases, declared the recovery of low semen and sperm densities in the victims meant the fluids were “not deposited at or near the time of death.” Those reports collected dust for nearly two decades until officials charged Lynn Dean Johnson and Wendell Lemond.
At Johnson’s 2008 trial, Gammie and Hong testified that the original findings were erroneous because low densities don’t necessarily provide an accurate deposit-timing window given significant “variables” in male sperm production, including an individual’s age and health. Thus, Hong claimed the deposit occurred “zero to 24 hours” before collection at the crime scene. That flip assisted prosecutor (now judge) Kevin Haskins, who assured jurors the crime lab’s expertise was on par with the deeds of “Galileo” and “Copernicus,” in winning a conviction.
Just 13 months later, in the same courtroom with the same judge but in the Lemond case, Hong flopped on the flip with a jury unaware of her Johnson testimony. She vouched for Gammie’s original 1985 finding that low sperm densities proved the deposit had been made more than 24 hours before collection. Pushing the timeframe back by at least a day pleased prosecutor Howard Gundy, who wanted to clear the story-altering man who left the deposit, Larry Herrera, and nail the government’s target, Lemond .
Though DAs and sheriffs typically control crime labs, criminalists ethically aren’t supposed to massage evidence to fit cops’ and prosecutors’ wishes. Plus, expert forensic opinions should be able to withstand scrutiny. However, Hong has been dodging questions from Assistant Public Defender Scott Sanders, who discovered her “scientifically irreconcilable” testimonies in late 2016.
The silence momentarily ended in February, when Bruce Houlihan, the current director of the sheriff’s crime lab, emerged for an Orange County Register article to absolve Hong without explanation. After Houlihan retreated back into the bureaucracy, Sanders repeatedly asked him to describe what investigation he’d undertaken to make his assertion. He also wants to know what searches were undertaken to determine if wobbling forensic-science stances led to other wrongful convictions and the possibility that actual killers still roam the streets. But Houlihan, who told the Register he spends “a lot of time avoiding the perception of bias,” won’t answer questions.
“The problem for me in terms of the credibility of the crime lab is I have a director that will speak to the prosecution, will speak to the press, but won’t speak to me,” Sanders said. “[Houlihan] has kind of violated the spirit [of] ‘We’re not beholden to one side.’”
The battle is now playing out in court. At the California Court of Appeal, Sanders is taking issue with a late-2017 decision by Superior Court Judge Cheri T. Pham, a former Rackauckas aide, to block a new trial for Johnson on timeliness grounds. According to the defense, the recent emergence of serious concerns about Hong’s credibility should trigger future proceedings. California Attorney General Xavier Becerra wants to keep the conviction in place and, as he has in the snitch scandal, is fine with continued secrecy surrounding unethical government activities in Orange County.
Meanwhile, a second confrontation is happening inside Superior Court Judge Julian Bailey’s Santa Ana courtroom. Sanders wants Houlihan placed under oath to explain his support of Hong’s testimonies. Bailey indicated he is contemplating approval.
Such a step wouldn’t delight Rackauckas aide Avery Harrison and Hutchens’ lawyer, D. Kevin Dunn, who are insisting without supporting documentation that Hong’s work in both Johnson and Lemond is valid. This duo is also using Penal Code 1054.9 to argue Sanders is only entitled to see government records produced up until the date of Johnson’s sentencing hearing. They contend a loophole in the law allows the prosecution team to hide evidence surrounding Hong’s work in Lemond and other information pertaining to her dishonesty that may have been discovered after Johnson’s sentencing.
At a mid-April hearing, Harrison told Bailey it was “inappropriate” for him to have compared testimony in the two controversial cases because the law blocks the judge from considering anything that happened after the DA’s office won Johnson’s conviction, and thus, he shouldn’t have looked at “the substantive merits” of the flip-flop.
“The Court of Appeal is in the best, exclusive position to look at the merit of the defense claims,” said Harrison. “If they determine there’s information that has occurred since the end of the Johnson case, that could be qualified as, let’s say, ‘newly discovered evidence,’ then they have the authority and jurisdiction to hold an evidentiary hearing.”
Dunn posed even more aggressively, implying it makes common sense for government officials, such as those in a sheriff’s crime lab, to enjoy secrecy when they’ve engaged in “an internal process that an agency might undertake to ensure the quality of its work.”
The comment jolted Bailey. He inquired, “What if that [hidden government analysis] turns up exculpatory evidence?”
A rambling Dunn didn’t retreat. The sheriff’s lawyer boldly created an alternative reality, inexplicably saying all courts agree Hong gave consistent testimony.
“Let me stop you there,” the judge fired back. “There haven’t been any findings by any court that that [is] the case.”
The parties are expected to resume battle in Bailey’s court on May 21.