Bloodsworth (28 page)

To be on the water and free is a glorious thing . . .

—K
IRK
B
LOODSWORTH

I
N THE EARLY
1970s when Bob Morin was in college at the University of Massachusetts, he'd volunteered to spend a semester in an offshoot of the VISTA program, working at a legal aid clinic as a low-income-housing specialist. The poverty and injustice he saw changed him. Young and idealistic, he decided he wanted to go to law school and figure out a way to use his degree to help people.

After graduating from Catholic University's law school in 1977, Morin went to work for a small Maryland firm that needed a litigator and that promised to provide him with the opportunity to do pro bono work. His two pleasures, outside of the law, were romancing his girlfriend, Marty Tomich, and long-distance running. He began training for marathons and ran his first one that year. He had fallen hard for Marty and looked forward to his evenings and weekends with her. But as his private practice developed, he became frustrated over how little time he had to devote to public-interest work. He felt he wasn't doing what he'd set out to do.

In 1981, Morin got a call from a law school classmate, Gerry Fisher. Fisher was the director of a Washington, D.C., program called Law Students in Court. The program taught third-year law
students from area schools in a clinical setting, allowing them to handle civil cases on behalf of indigents. In the process of teaching, the program provided an important community service. Fisher had just been offered a position with the U.S. Attorney's Office and asked Morin if he would agree to take over the program as codirector with Stephen Bright. Bright had been a public defender in D.C., a young star of a trial lawyer. He'd been almost too aggressive. He'd rankled some of his supervisors and was ready to move on.

Morin and Bright met and hit it off. They talked of their mutual aspirations to expand the Law Students in Court program, to turn it into a real force for justice in the city. They not only agreed to come aboard as codirectors, but they also convinced Fisher to forego becoming a federal prosecutor and to stay on with them. They'd all split the available salaries and work together to build the program.

It wasn't long before they received an unexpected phone call from a civil rights lawyer in Georgia. There was an inmate in Augusta, they were told, on death row, awaiting execution, and the man didn't have a lawyer. Morin thought it was a joke. How could a man be awaiting execution and not have a lawyer? Bright flew down to meet with Garnett Cape. Cape had been convicted of killing his wife. Morin, Bright, and Fisher took on his case. After they agreed to take this death penalty case, they began getting call after call. There was a flood of people awaiting execution in the South, they learned, and few had lawyers. They discovered that there were men awaiting execution whose lawyers had been drunk or asleep during their trials. In some places, lawyers hardly got minimum wage to defend a death case. The racial issues were profound and complex. The representation of many of these people had been nonexistent, at best a travesty. Morin and his colleagues couldn't say no. They began having less time to devote to their program. Something had to give.

Stephen Bright learned that the Southern Prisoner's Defense Committee in Atlanta was relocating. It was low on funds. Its principal lawyers were leaving. It was almost a bust. He was asked if he'd be interested in taking it over. Bright was passionate, totally committed, and wanted to go. Morin was willing to go down for a while, but didn't want to be away from his fiancée, Marty, for too long. If he went, it could only be on a temporary basis. And someone needed to continue running Law Students in Court. The three finally agreed that Gerry Fisher would remain behind and continue to run the program. Morin would head south with Stephen Bright to help get the Southern Prisoner's Defense Committee—which they renamed the Southern Center for Human Rights—revitalized. “We went down there,” Bob Morin later said, “and realized that there was this horrendous black hole—this absence of justice. I knew that at some time down the road, at some later point, historians would look back and ask, ‘Where were the lawyers?' We just had to go . . .”

Morin's time in Georgia was a defensive blitzkrieg trying to hold back the dam of pending executions in nine southern states. They were overwhelmed with cases. The center had little money. They sent their petitions for stay of execution by Greyhound bus, because they couldn't afford overnight mail. They went to the small towns where the crimes had been committed, and when people learned who they were they were denied places to stay. Prosecutors and judges treated them with contempt. They worked around the clock. And they learned the art of postconviction advocacy in capital cases. They found ways to delay the executions, they won new trials for their clients, and they brought some dignity back to a process that had lost sight of equal justice.

Two years later, Morin got a call from Gary Christopher in Maryland. The dam was now giving way in his state, and Christopher needed the help of an experienced death penalty
lawyer. Morin was overdue in coming home to Marty. He and Stephen Bright had begun to turn the Southern Center around. It was attracting idealistic law students from around the country, and Morin felt he finally could afford to move back. He accepted the job. Christopher said later that Morin was a godsend. “He brought to the Maryland public defender a whole new level of experience and expertise in defending death penalty cases,” Christopher said. “He was a brilliant strategist. Bob Morin was just a great lawyer.”

Morin helped Christopher build his unit into a well-organized and efficient state center for death penalty defense. He handled capital cases at all levels and taught and supervised the lawyers. After a while, though, Morin realized that there weren't enough death cases in Maryland alone to justify his remaining there. He went back to work with Gerry Fisher. They joined with David Kagan-Kans and opened a small law firm dedicated to handling death cases from around the country. Morin was immersed in this work when he got the call from Christopher, asking him as a favor to visit with this kid—this Kirk Bloodsworth.

T
HE FIRST THING
Bob Morin did, after he agreed to represent Kirk Bloodsworth, was to draft and file a motion with the Baltimore County Circuit Court requesting an order that the state be required to preserve all of the trial evidence, including all of the physical evidence concerning the case. He knew that following the denial of a final appeal, the state would periodically dispose of the physical evidence in a case. Later, Morin wasn't quite sure what he'd intended to accomplish with that motion. He'd written it out of habit, on instinct. He'd just wanted some breathing room.

The motion was filed in March of 1989 and was granted by the court. Immediately thereafter, Morin wrote the prosecutors a letter, enclosing the court order, and demanding that they preserve everything. On a whim he also requested that any items containing
the bodily fluids of the assailant be subjected to DNA fingerprinting, a very new and still experimental technique about which Morin and other trial lawyers were just learning.

Ann Brobst wrote him back. Her letter acknowledged that the state would preserve the evidence that remained. She advised him, however, that no fluids of the assailant existed: “The vaginal and anal washings and swabs referred to by you were inadvertently destroyed prior to submission for analysis,” she wrote. “Additionally, time and nature may have contributed to further deterioration of certain of the items you have requested. . . .” She went on: “This office would agree immediately to have the assailant's body fluids examined for the DNA testing you have suggested. It is my understanding, however, that said fluids do not exist.”

Morin read the letter and put it in a file. That same month, he'd contacted one of the leading DNA labs in the country, Cellmark Diagnostics, in Germantown, Maryland. Apart from there not being any fluid from the murderer to test, Cellmark would not even attempt to analyze DNA from smears on glass slides, he learned. The lab required identifiable semen or other biological material containing DNA in a sufficient amount to test before it would even undertake an analysis.

Morin decided he'd start from scratch. He began to study the case since its inception. He pored over the police reports, the tips, the transcripts, the previous investigations conducted by the public defenders. He followed up by pursuing leads that had been dropped. He sought out updated information on John Michael Anderson, Richard Gray, David Rehill, and W. F. Johnson. He hired an investigator to look into murders occurring in the mid-Atlantic area after Bloodsworth's arrest, murders where a similar crime scene pattern emerged. He researched and drafted a petition for postconviction relief and filed it in the state court, arguing that the evidence was too circumstantial to support a conviction and that
Kirk's rights had been violated because the state had destroyed the critical evidence that could have exonerated him. He began preparing for a habeas corpus collateral attack in the federal court. But he was stymied. After nearly three years of working for Kirk, nothing he'd found had succeeded or was likely to succeed. The case ate away at him. Here he had a young man he knew was innocent. He had helped so many guilty people. Why couldn't he help Kirk?

It was Kirk who rekindled Morin's interest in a DNA test, who pushed Morin into pursuing the analysis. Morin had been learning about the science, about the developing technology. He was preparing to deal with it in other pending trials. But with no fluid samples from the assailant to test, it had no utility in Bloodsworth's case.

But after reading Joseph Wambaugh's
The Blooding,
Kirk hadn't stopped pestering Morin about a DNA comparison. “What about getting the stuff tested?” he asked Bob for the umpteenth time one day at the prison. “Where are we with that? Let's just send whatever's there out and test it. What's there to lose?”

“To start with, the FBI found that there was no semen on the swabs,” Morin reiterated. “There was no semen on the clothes. There is no fluid to test.” Morin still understood that DNA testing methods at that time were unable to analyze preserved specimens off of slides and that any test risked destruction of the DNA samples on them. Morin explained to Kirk that even if a lab could be found that was willing to test the physical evidence, and even if trace amounts of semen existed that had been overlooked by the FBI, there was this other problem: the risk of destroying the samples in an unsuccessful, premature test. In fact, there might be a lot to lose.

“I want the stuff tested,” Kirk insisted. “Test it. Please, for God's sakes, Bob, a DNA test. I'm dying in here . . .”

Morin reluctantly agreed to try. He began calling around to
other laboratories. Dr. Edward Blake's small lab in California, Forensic Science Associates, was clearly the best bet. It did polymerase chain reaction, or PCR, testing, the most advanced type of DNA fingerprinting then known, one that could, under some circumstances, amplify a miniscule specimen of genetic material into enough of a sample to analyze. Blake's lab was willing, though with reservations, to test the swabs and smears. Morin was warned again that glass slide specimens stained with a preservative might not lend themselves to DNA extraction and that the specimens could be destroyed in the testing process. Morin explained that he understood. He and his client wanted the testing done anyway.

Morin negotiated the release of the evidence directly with Ann Brobst. She agreed to release the vial of the victim's blood; the oral, vaginal, and rectal swabs in the possession of the FBI; and the hand scrapings taken from the victim. Morin wasn't satisfied. He sought and received permission to go to the evidence clerk's office to look through old files for the other physical evidence. It turned out that following the second trial, Judge Smith had retained in his chambers, in his closet, some of the items of evidence relating to Dawn Hamilton. Smith had been uncomfortable enough with the verdict that he had kept some of the trial exhibits in a box where they wouldn't be destroyed. He'd since returned them to the court's evidence room.

There, on a shelf, Morin found a cardboard box containing Dawn Hamilton's panties, shorts, and the stick. Morin also interviewed the medical examiner and learned that the medical examiner's office had kept frozen the glass smears taken at autopsy. Morin wanted all of this tested.

Brobst eventually agreed to the following terms, set forth in a letter: Morin could have these items sent and tested at the California lab if he paid the cost and if all oral and written reports from the lab were made known to the state. She wrote: “If a qualified laboratory
determines with scientific certainty that there is sperm present on any of the items and the sperm is not that of the defendant, and the state has an independent opportunity to have an expert review the protocol and methodology used by the laboratory and agrees to the accuracy of the results, the state will agree to his release.”

In August 1992 the various items of crime scene evidence along with a vial of Kirk's blood were all sent to California to undergo this new form of scientific identification and comparison, to be subject to this developing forensic technology capable, under some circumstances, of excluding someone as the perpetrator of a crime.

Morin also sent the lab $2,500 from his law firm as an advance toward the total cost. But he had little in the way of expectations.

T
HE CONCEPT OF
forensic identification was probably first recognized in ancient times. In Babylon fingerprints were used on clay tablets for commercial purposes. The early Chinese were known to use thumbprints on clay seals. The first European to identify the value of fingerprints for forensic use was Sir William Herschel, an English magistrate in Jungipoor, India, in 1856, who used them on contracts with local citizens. Local government pensioners used their fingerprints to sign for their monthly payments, and landowners put their official stamp on transactions in this manner.