Army Staff Sgt. Kirk Holcombe, 31, a decorated veteran who served in Iraq, was forced to take a discharge under less than honorable conditions, which barred him from receiving veterans’ medical benefits. According to his attorney, Duane Kees, “I think USACIL intentionally withholds, I don’t want to say their bad laundry, but their bad paperwork ... [they know] exactly what’s going to happen when they turn it over. It automatically calls into question their findings.”
After returning home from Iraq, Holcombe was stationed at Fort Knox in Kentucky in 2010 when an 11-year-old friend of his stepdaughter said that he tried to unzip her shorts while she was sleeping – a charge that Holcombe denied. While child protective services noted inconsistencies in the girl’s story and held the allegation was unsubstantiated, USACIL claimed it found DNA on the girl’s zipper.
The girl had been sleeping on the Holcombe family’s sofa for hours, providing an alternative explanation as to the origin of the DNA. No blood or semen was detected.
Several months later a technical reviewer at the Army lab found “several discrepancies” related to USACIL analyst Alejandro Vara, and a lab supervisor noted “there does seem to be an issue with [Vara’s] attention to detail.” This, however, came after an attorney representing the lab had assured Holcombe’s lawyers that “neither the USACIL nor I am in possession of any derogatory information or materials relating to Mr. Vara.” Vara was issued a corrective action plan to “address his lack of attention to detail,” while the case against Holcombe proceeded.
USACIL’s website states that the lab, which is located near Atlanta, Georgia, “is the only full service forensic laboratory in the [Department of Defense] and trains special agents and investigators from the Army, Air Force, Navy and Marines....” The lab handles over 3,000 cases annually, conducting forensics tests related to DNA, firearms evidence and more. Previously accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (AS-CLD/LAB), the Army lab is currently accredited by Forensic Quality Services – International.
Although military officials defended the work of USACIL, concerns persisted over prior investigations that called into question the accuracy of the lab’s test results. McClatchy Newspapers, which ran an extensive series of investigative articles about USACIL from March 2011 to May 2012, discovered that a lab analyst had botched a fingerprint proficiency test, which had not been revealed to defense counsel in a double murder prosecution. The judge in that case instructed the jury to disregard the analyst’s testimony as being unreliable.
In another criminal case, Navy Lt. Robert A. House was forced to resign in 2003 after he and two other defendants were accused of raping a junior enlisted woman – an allegation rejected by a court-martial panel, though House was convicted of several other charges.
He later learned that USACIL forensic examiner Phillip Mills had “falsified and contaminated DNA test results in a different case.” A 2006 retest of the DNA evidence cleared House, but he was not notified of the results until 2009.
U.S. Court of Federal Claims Judge Francis M. Allegra noted in a July 8, 2011 decision that “For reasons unexplained, this exculpatory information was provided neither to plaintiff nor to his counsel at or around the time it was discovered.” House’s convictions were later set aside. See: House v. United States, 99 Fed.Cl. 342 (Fed.Cl. 2011), rehearing and rehearing en banc denied.
According to a McClatchy article, “Military and civilian judges agree that defendants deserve to know potentially exculpatory information, or information that undermines the credibility of government witnesses.” The Supreme Court addressed this issue in its landmark Brady decision (Brady v. Maryland, 373 U.S. 83 (1963)), but apparently not all military prosecutors have gotten the message.
Investigators working for the Department of Defense’s Office of Inspector General identified other discrepancies in Mills’ work, and asked military judge advocates to provide proof that criminal defendants had “received notice concerning the discredited lab work, or the reason such notice was not [given],” according to Assistant Inspector General John Crane. Not all defendants or their attorneys had been notified.
In 2005, two USACIL memos cited various problems with Mills’ lab work, including incidents in which he “had cross-contaminated and/or switched samples within and between several cases, made a false data entry and altered documentary evidence, falsely stated the results of an examination which he had not performed, and misrepresented work he had performed.” See: United States v. Luke, 69 M.J. 309, 325 (U.S. Armed Forces 2011), cert. denied.
Mills, who had previously failed a hair-analysis proficiency test, was suspended and later resigned in November 2005. The U.S. Army Criminal Investigation Command then began examining 465 cases involving Mills’ work at the lab from 1995 to 2005, and hired two independent DNA contractors to conduct the review. The investigation, which concluded in September 2008 at a cost of $1.4 million, found problems with 25 percent of Mills’ cases in which evidence was retested. Evidence was no longer available for retesting in over 80% of the cases.
Chief Judge Andrew Effron of the U.S. Court of Appeals for the Armed Forces observed in his dissent in the Luke ruling that “The Government subsequently destroyed the physical evidence at issue, thereby precluding the type of retesting that might have restored some level of confidence in the process.”
The certiorari petition filed in Luke stated that “USACIL’s internal investigation classified Mr. Mills’s misconduct as a Class I violation of the lab’s procedures. Such a violation, according to USACIL, ‘raise[s] immediate concerns regarding the integrity of the laboratory’s work product’ and would be likely to ‘unfairly jeopardize the rights of an individual.’”
While charges were reversed in at least two cases involving Navy personnel as a result of the review of Mills’ lab work, military officials said in a statement that there “was never a ‘USACIL integrity’ question per se, but an issue with an employee’s integrity.” They also noted that “more than 100 extensive changes and modifications” had been made at the Army lab.
Yet in April 2008, a large amount of misplaced evidence from Mills’ cases was found; it was determined that USACIL supervisor Clement Smetana had known about the evidence, which included specimen slides, but failed to give it to investigators. Smetana resigned in July 2008 after he was found to be “derelict” in his job duties.
Despite Mills’ documented misconduct at the lab, the defendant’s conviction in Luke was upheld, as was the conviction in another case involving a Marine Gunnery Sgt. sentenced to 15 years for forcible sodomy. See: United States v. Carlson, 67 M.J. 693 (N.M.Ct.Crim.App. 2009), review denied.
In the latter case, the U.S. Navy-Marine Corps Court of Criminal Appeals wrote that it shared “the second military judge’s concern that USACIL personnel were less than forthcoming, and were not promptly compliant with the rulings of this court or the military judges, all of whom directed disclosure of certain information.” The court concluded, however, “that USACIL had substantial motives to properly investigate this matter, and ultimately succeeded in doing so in good faith.”
Mills was not the only Army lab employee found to have engaged in misconduct. Another USACIL analyst, Michael Brooks, who was responsible for evaluating firearm evidence, was fired in 2006 “for making a false statement and destroying evidence. The lab subsequently had to review 541 firearms cases to make sure they were thorough, properly conducted and met legal requirements. Ultimately, officials determined that none of them needed full retesting,” according to the McClatchy investigation.
And in 2007, Allen L. Southmayd, a handwriting expert, resigned from USACIL. He pleaded guilty to federal embezzlement charges and was sentenced in January 2008 to three years of probation, six months of community service, six months on home confinement and payment of $73,068.64 in restitution. Southmayd had been stealing money from the American Board of Forensic Document Examiners, where he served as treasurer, and spent the funds on his gambling addiction. See: United States v. Southmayd, U.S.D.C. (N.D. Ga.), Case No. 1:07-cr-00275-JOF-GGB.
More recently, in April 2012 the Office of Special Counsel indicated it would investigate claims that USACIL officials had retaliated against Donald Mikko, the lab’s former firearms branch director, after he cooperated with a misconduct investigation and a racial discrimination complaint. Mikko resigned due to “escalating harassment and retaliation,” according to his attorney; he had worked at USACIL for over two decades. Military officials suspected Mikko had provided information to McClatchy Newspapers that led to news articles about problems at the lab.
“The Army is looking for a scapegoat to blame for the recent adverse media reports,” said attorney Peter Lown, who represents Mikko. “My experience with the lab overwhelmingly tells me that the primary mode is to cover up any misfeasance.”
The director of USACIL, Larry Chelko, coincidentally announced his retirement in April 2012, though military officials stated they “strongly reject any suggestion that his retirement is connected to anything beyond normal career progression and a well-deserved retirement.”
During Chelko’s tenure as director at least seven internal investigations were conducted and eight complaints filed against lab managers within a four-year period, including claims of racial bias, sexual harassment, fraud and assault. USACIL’s former attorney, Lisa Kreeger, settled claims against the lab alleging she had faced retaliation for cooperating in a racial discrimination complaint.
The Department of Defense’s Office of Inspector General has indicated that it is currently conducting an inquiry into problems at USACIL, following a request by U.S. Senators Patrick Leahy and Charles Grassley.
“Falsified lab tests could have contributed to criminals remaining free and innocent people being wrongfully convicted,” the Senators wrote. “The failure to address these issues in a timely manner could damage the nation’s trust in the military justice system.”
Sadly, revelations about misconduct at USACIL came too late to help Staff Sgt. Holcombe. Despite the questionable lab results, the Army continued to proceed against him. Although he steadfastly denied his guilt, he reluctantly decided to accept a general discharge in lieu of a court-martial, based upon the testimony of the alleged victim. His captain supported a general discharge under honorable conditions, which would have preserved Holcombe’s veterans’ healthcare benefits, but the brigade colonel, David E. Thompson, downgraded his discharge to under less than honorable conditions. Holcombe said he “just wants my name cleared, and to get the [medical] help I need...” for injuries he suffered from roadside bomb explosions while serving in Iraq.
The official logo for USACIL is a picture of Mickey Mouse wearing a Sherlock Holmes-type cap and holding a magnifying glass. It seems, however, that given the many problems at the lab, a more appropriate Disney character would be Goofy.
PLN has previously reported on problems at the FBI crime lab and state crime labs across the country, which in some cases have led to exonerations and lab closures. [See, e.g.: PLN, March 2012, p.17; Jan. 2012, p.26; Oct. 2010, p.1; Jan. 2010, p.32].
Sources: www.mcclatchydc.com, www.cid.army.mil/usacil.html, www.caaflog.com
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House v. United States
|Cite||99 Fed.Cl. 342 (Fed.Cl. 2011)|
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|Cite||67 M.J. 693 (N.M.Ct.Crim.App. 2009)|
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United States v. Southmayd
|Cite||U.S.D.C. (N.D. Ga.), Case No. 1:07-cr-00275-JOF-GGB|