Fourth Sunday from Jingle Jangle

Chapters 7-9 of Jingle Jangle

By Jim Rix

[Editor's Note: Concluding paragraph of the review by Daniel L. Kaplan, Assistant Federal Public Defender in the District of Arizona, published in The Federal Lawyer, February 2009:

Other than being Ray Krone's cousin, Jim Rix has no personal investment in the justice system. He is not a lawyer but the co-owner of an Internet-based billing service for dentists. His book leaves us with powerful critiques but no recommendations. Fortunately, these issues are beginning to be addressed with some rigor, as the revolution in DNA technology has revealed the importance of understanding the phenomenon of wrongful convictions. Unfortunately, understanding our mental black holes does not make them go away. Our only remedy is to study these black holes closely enough to avoid them-a delicate process that requires constant self-examination and course correction. But it is a process that we must master, because we can always be certain of two things: law degrees and black robes will never free us from our natures, and there will never be enough Jim Rixes to go around.]

Chapter 7. Decision

It was just after eight a.m. on the longest day of 1995 when my phone rang in Nevada. Arizona is one of two states that doesn’t participate in Daylight Savings Time, residents preferring not to save hot summer daylight. So it was the same time there for the reporter who was calling me from The Arizona Republic. I’d introduced her to the Krone case. She had just arrived at work and seen the story.
    “No kidding?” I said attentively. After listening to the details, I immediately called Chris Plourd.
    “Guess what?” I asked.
    “You’ve found Sugar and Hot Lips.”
    I ignored his little jest. “No, no, they’ve reversed Ray’s conviction!”
    “No kidding!”
    Indeed they had. The Arizona Supreme Court unanimously agreed:
    The bite marks…were critical…Without them, there likely would be no jury-submissible case against Krone…We reverse the conviction and remand for a new trial where Krone will have the opportunity to meet the full force of the videotape.
    The conviction was overturned on the late-discovery issue. As predicted, the court could not agree on the hearsay issue:
    The resolution of one [issue] disposes of this appeal [and] makes it unnecessary for us to address the admissibility of Ancona’s statement that “Ray” was going to help her close the bar.
    However, chief justice Feldman, in a concurring opinion, offered guidance to the trial court:
    We cannot make any final decision on the admissibility of the statement at retrial. For instance, we do not know whether the statement will be needed and really be offered for its undoubtedly permissible use—to prove Ancona’s state of mind—or for its potentially impermissible use—to prove Ancona’s expectation of Ray’s conduct. We raise the question and leave it to the trial judge to decide on the complete record available at retrial.
    Upon hearing the news, Chris Plourd offered some hearsay of his own. Apparently the attorney general’s office was furious with the county attorney’s office for challenging the Rule 32 and with Judge Jeffrey Hotham for dismissing it. At the time the supreme court was considering Ray Krone’s appeal, Plourd’s special action was also placed before the court. It detailed the Krone case evidence, which, except for the bite mark and hearsay, favored Ray Krone. One never knows what judges consider in rendering their opinion, but chances are that the special action had some influence. The AG’s office didn’t like to lose appeals.
    Maricopa County Attorney Rick Romley didn’t like to lose either. Acquittals of individuals prosecuted by his office were not good for his political career. The same was true of convictions overturned on appeal. It was reported that Romley was equally furious.

Ray Krone once again was innocent until proven guilty. He was anxious for a speedy trial.
    For the three prior months, Plourd had been working fast and furiously on the Krone evidence, preparing for the Rule 32 hearing. The supreme court’s decision rendered it moot. Plourd could be ready for trial in short order. However, it would be eight months before Ray Krone’s second trial would begin. DNA proved to be the bottleneck. The experts chosen to analyze and report on the serologic evidence were busy working on another case of some notoriety, California v. OJ Simpson.

Chapter 8. Discovery

Chris Plourd was anxious. We were in Tom’s Tavern again, after a morning hearing before the Honorable James E. McDougall, who had been assigned to the Krone case. Before trial, numerous motions are presented to the court by both sides. The judge then determines which evidence, experts and witnesses the jury will see and hear. But at lunch this mid-summer day, Plourd had something else on his mind. His pager was on the table. A criminologist from Ed Blake’s lab would have the results of the Krone serologic evidence they had received sometime in May. Today Chris Plourd would know just where his client fit into the crime scene DNA.
    His pager went off, his lunch unfinished. The next moment he was in the phone booth with a yellow note pad.
    Deoxyribonucleic acid, DNA, is the stuff of life, the genetic blueprint for all organisms on this planet that reproduce. Bacteria and everything on up the evolutionary ladder have it. It’s a huge molecule as molecules go, structured like a spiral ladder. The side rails are made up of nucleotides—compounds of a phosphate and deoxyribose, a substance similar to table sugar. The rungs are made up of pairs of four nitrogen-based compounds called adenine, cytosine, guanine and thymine. Because adenine always pairs with guanine, and cytosine with thymine, DNA makes exact copies of itself. It reproduces. First it splits apart down the middle of each rung. Then, with the help of enzymes, each side grabs free-floating nucleotides and associated nitrogen bases and rebuilds itself rung by rung into two identical DNA molecules. Those two become four, then eight and so on.
    Imbedded in the DNA molecule are pairs of chromosomes, one from mom and one from dad. Human DNA contains twenty-three chromosomes, of which twenty-two are identical pairs called autosomes. The twenty-third pair contains the sex chromosomes X and Y—two Xs for females and an X and a Y for males. Paired chromosomes are further divided into genes. Each gene is the paired combination of traits, called alleles, inherited from the parents. The combination of allele pairs of a particular gene determines a specific trait, such as eye color. Some alleles dominate their pair. A dominant brown-eye allele paired with a recessive blue-eye allele yields brown eyes. It takes two pared blue-eye alleles to yield blue eyes. That’s why blue-eyed people are rarer that brown-eyed people.
    It’s possible for two brown-eyed parents to yield blue-eyed offspring, provided that each parent has a recessive blue-eyed allele. Since one must have only blue-eyed alleles to be blue-eyed, it is not possible for two blue-eyed parents to have brown-eyed children. If this does happen, momma’s in trouble! A common use of DNA technology is to determine paternity.
    The relative number of people with a particular eye color in a particular group is known as its population frequency. For example, the population frequency of blue-eyed people among Scandinavians is greater than among Italians; that is, there are more blue-eyed Scandinavians than blue-eyed Italians. DNA analysis goes a little deeper. Brown-eyed people can have two brown alleles or one brown and one blue, with frequencies for each. And, of course, more than two eye colors are possible.
    The essence of DNA analysis is this—the number of people with specific traits diminishes as the number of traits increases. Traits with low population frequencies further reduce the number of possible candidates. That’s why there are so few blond, blue-eyed, left-handed persons with a pair of X chromosomes.
    Scientists are able to chemically look inside some specific genes and determine the specific allele pair (trait) for each. For example, hanging out on the short end of chromosome six is the genetic marker DQα. There are six possible alleles for this genetic marker—1.1, 1.2, 1.3, 2, 3, 4. (Why they’re not numbered 1 through 6, I don’t know.) Kimberly Ancona inherited a 3 and a 4 allele. So she had DQα type [3,4]. Ray Krone is DQα[3,3]. There are twenty-one possible DQα types, each with its own population frequency—[1.1,1.1], [1.1,1.2], [1.1,1.3], etc. For a genetic marker with n alleles, the formula for the number of possible types is n (n+1)/2.
    For the first trial, only this marker, DQα, was typed. The swab from the area of the bite mark was determined to be consistent with Ancona. But it was argued that Ray Krone could not be excluded if the sample were a mixture from Ancona and Krone. A mixture of DQα[3,3] and DQα[3,4], when tested, would yield type DQα[3,4], since only alleles 3 and 4 would be in the soup. The argument was that Ancona’s DNA was masking Krone’s DNA.
    Ed Blake’s lab typed DQα and five other markers by a method called polymerase chain reaction (PCR). Polymerase is an enzyme. For some samples, a seventh marker, D1S80, was typed by another method called electrophoresis.
    An explanation of how PCR and electrophoresis work would take far longer than it took Plourd to return from the phone booth and is a known cure for insomnia. Let’s stay awake for the rest of this story.
    While it’s mathematically possible that your DNA and mine are the same, suffice it to say that, to an extremely, extremely high probability, they are different. That’s why I’m ruggedly good looking with hazel eyes and brown hair and you’re…Well, I don’t know what you are, but I do know that a scientist can take a sample of your DNA and of mine and compare them with samples taken from the Ancona murder crime scene and tell with certainty that you and I were not there—unless, of course, you are the actual…
    Anyway, determining exclusion is straightforward enough. If just one marker type of a particular person is not present in a sample, that person is positively excluded as a contributing donor to that sample.
    Plourd returned wearing a jubilant smile. “He’s excluded!”
    There were fifteen results from the crime scene samples to check against Ray Krone’s DNA typings. Most were swabs taken from the victim’s body—rectum, vagina, mouth, cheek and the area of the throat that had bite marks. There were also results from Ancona’s sanitary pad, tank top and bra.
    Plourd had made a few preliminary determinations while on the phone. While eating his lunch he continued down the sample typings listed on his yellow pad. He stopped on the next to last sample.
    “Hmm…I can’t get an exclusion on this one,” he said, a bit perplexed. “I’ll have to talk to Blake. Levy’s going to be all over this!” Noel Levy was the prosecutor on the case.
    Receipt of DNA results is always an anxious time for defense attorneys. While most clients profess innocence, DNA results say otherwise for many. This is the time the defense strategy takes shape for a case with DNA. Exclusion is simple, the client was not at the crime scene—end of story. But for non-exclusion, the defense attorney is challenged to come up with a plausible explanation favorable to his client. If the defendant is innocent, the task is not too difficult. If not…
    I recalled the far-fetched explanation concocted by the OJ Simpson defense team to explain the abundance of their client’s blood at the crime scene. “The police planted it.” This had worked for OJ.
    Plourd’s client was innocent and, no doubt, he would be able to come up with a much better—and most likely accurate—explanation.
    He didn’t seem too concerned as we traversed Pioneer Plaza on our way back to the court building. He was less concerned about what Dr. Blake would say of the bra DNA results than about what Levy would do with it.

Chapter 9. Bloody Tooth Marks and the Scratch

Kim Ancona’s bra was found under her body soaked with blood, along with the tank top and blouse she had been wearing before her death. All three garments were cut up the middle in the front. They were most certainly removed as Ancona lay dead or dying on the men’s restroom floor, because the tank top and blouse each had a slit in the back that corresponded to the single stab wound that had killed her.
    Now that Ray Krone could not be eliminated as a possible donor of a DNA sample taken from the bra, the bra ended up in Dr. Raymond Rawson’s hands. At prosecutor Levy’s suggestion, Dr. Rawson looked at the bloody bra to see if he could find any evidence of Ray Krone’s presence. Indeed he could.
    “[T]he [blood] stains,” he said, “are clear examples of tooth marks…[that] can be correlated to the bite injuries on the left breast of Kimberly Ancona, which were caused by Ray Krone…It is likely that one of [the outer garments] was covering the brassiere at the time of the bite…the bloody tooth marks should be tested to determine if the blood is Kim Ancona’s.”
    It seemed that Rawson was now claiming that Ray Krone had a mouth full of Kim Ancona’s blood before biting her. He never did explain how such a detailed bite mark as the one found on Kim Ancona’s left breast could have been inflicted through not one, but two articles of clothing.
    At the taped interview that followed this latest revelation, Plourd hammered away at Rawson’s latest opinion. During the interview, Rawson went so far as to annotate a photo noting which particular Krone tooth was responsible for each of several of the bloody marks on the bra. Interestingly, the photo did not even contain an ABFO ruler. A photo taken without a ruler next to the bite mark is, by ABFO standards, of no evidentiary value because the scale is unknown. Apparently, a bite mark on a garment is held to a standard different from that of a bite mark on flesh—at least for Dr. Raymond Rawson.
    Plourd enlisted the services of Bart Epstein, a nationally renowned blood spatter expert. Epstein wet his teeth with his own blood and bit an identical bra. The resulting pattern looked nothing like any of the patterns on Ancona’s bra. Then he demonstrated how similar patterns could be created by dropping a similar bra into a pool of blood and then subsequently folding it and placing it in a plastic bag, much like what happened to Ancona’s bra.
    The patterns on Ancona’s bra were not unlike patterns found on tie-dyed shirts. One marvels at what the ramifications might have been—inspired by Dr. Rawson’s unique vision—had Kim Ancona been wearing a tie-dyed blouse.

Rawson seemed to be at the forefront of technology. Several months before the trial he had issued a quite impressive thirty-five page forensic report of his analysis of the bite marks. It was prepared using state of the art software that included the ability to insert color photographs, charts and diagrams into the text. Many of the ninety plus figures were annotated with tooth numbers. These figures were of three types: those of the bite marks found on Kim Ancona’s left breast and neck, those of Ray Krone’s dentition and those comparing dentition with bite mark.
    The photos containing bite marks were taken at autopsy. A cast of the left breast made at autopsy was also pictured. Dentition photos included an actual photo of Ray’s upper teeth, many photos of his dental model, his bite impression in Styrofoam and clay and outline diagrams of his teeth pattern. Some comparison photos showed the teeth pattern overlaid upon photos of the bite mark, others linked several photos together with impressive computer generated lines and arrows explained by the accompanying text. Three photos taken at autopsy showed the dental model resting upon then being rotated about the actual bite mark.
    In the introduction to his report Dr Rawson stated, “There is sufficient detail in the marks to identify…Ray Krone as…causing the marks…to a high degree of confidence that no other individual caused the bite marks.” His conclusion reiterated the same. In between he supported his analysis using several technical methods: split screen verification, scanning electron microscopy and computer axial tomography (CAT) scanning.
    Commenting on the report, Rawson stated that he reached his opinion according to the guidelines recommended by the ABFO and then used these technical methods, presented on videotape, merely “to demonstrate the match.”
    Plourd focused on CAT scanning technique. In medicine this procedure is used to take a series of radiographs through successive planes. It produces a three-dimensional view of a tumor, for example, giving the physician an accurate view of its size and position. Rawson took CAT scans of the dental model producing transparent overlays that represented teeth patterns at various bite depths.
    Plourd used the fact that Rawson was the only bite mark expert to use the technique to file a motion for a Frye hearing. He asked the court to preclude Rawson from presenting his unique CAT scanning technique at trial because it was not a commonly used method of evaluating bite marks.
    Dr. Rawson appeared first at the hearing, scheduled to last a full day. On the stand all morning he was grilled by Plourd in detail about his CAT scanning method. Rawson had developed a device to hold the dental model while it was being scanned. Plourd asked if there were any standards for its construction? Any protocols for its use?
    “No. That is my method,” was the answer.
    The holder had a set of adjustment screws. Rawson acknowledged that mounting a dental model in the holder was “subjective in the sense that [the models] can be moved in different directions.”
    Hence, Plourd argued, the resulting images would vary depending upon the person doing the CAT scan.
    Dr. Campbell had flown in that morning from Albuquerque to testify in the afternoon session in opposition to the validity of CAT scanning used for bite mark analysis. Plourd discussed the morning’s testimony with Dr. Campbell over lunch.
    “It’s really hokey, what Rawson’s doing,” he concluded. “I want the jury to see this. But I think McDougall just might grant the Frye motion.”
    Plourd surprised both Judge McDougall and prosecutor Levy by beginning—and ending—the afternoon session by withdrawing his Frye motion. Dr. Campbell was able to catch an early afternoon flight back to Albuquerque.
    The truth is, Chris Plourd was not concerned at all about Rawson’s CAT scanning. The Frye hearing was a ruse to pin Rawson down on “the scratch” without spilling the beans to Levy. In his forensic report Rawson still claimed to see two bite marks on Kim Ancona’s left breast, one in the twelve o’clock position, the other in the ten o’clock. In the arch of the ten o’clock bite Rawson noted a “scratch that is typical of a cusp tip drag mark with the class characteristics of a cuspid [a canine tooth].” On Ray Krone’s dental model he further noted that “tooth number eleven [the upper left canine] has a tiny facet that sharpens the cusp tip” and then concluded that “the scratch has individual characteristics of Ray Krone’s tooth number eleven.”
    Looking at photographs of the bite mark, Plourd had noticed early on that in some photos “the scratch” was clearly evident, while in others “the scratch” was not there. He scrutinized each and every bite mark photo. There were more than a hundred of them. Only photos taken at autopsy contained “the scratch.” Those taken at the crime scene did not. Plourd had the smoking gun he needed to challenge credibility. The state’s star witness, bite mark expert Dr. Raymond Rawson, had identified a scratch made at autopsy as having been made by suspect Ray Krone.
    During the Frye hearing, Plourd subtly maneuvered Rawson, under oath and on the record, into circling “the scratch” and annotating it “11.” Prosecutor Levy didn’t have a clue. Plourd was ready for Rawson. He would wait for an opportune time during trial to spring “the scratch” on Levy.

[Editor’s Note: Jingle Jangle is still in print and can be ordered through Amazon. (The author’s Amazon vendor’s name is “The Book Abides.”) Autographed copies can be arranged. Let us know.]

Copyright © 2015 by Jim Rix