Sunday, October 25, 2015

Fourth Sunday from Jingle Jangle

Relative Truth (Chapter 11 of Jingle Jangle)

By Jim Rix

[Editor's Note: From the September 2015 review by Joe Kilgore in The US Review of Books:
Jingle Jangle is a recounting of the kidnapping, rape, and murder of Kim Ancona, plus the trial, conviction, appeal, retrial, upheld conviction, additional appeal, and subsequent overturned sentence and release of Ray Krone. The tale is told by Krone’s cousin, Jim Rix, a computer programmer and software developer turned chronicler of this fascinating foray into forensic sleuthing, questionable policing, dubious prosecution, alarming conviction, and incarceration of an innocent man.]
“The verdict’s in,” said Chris Plourd after my “Hello.”
    “That was quick,” I said, noting that the jury had deliberated an unusually short time after a very long trial.
    “It’s got to be an acquittal.”
    “How can it be? OJ’s blood was all over the crime scene.”

Richmond is one of many cities that surround the San Francisco Bay. On several occasions I drove from my home at Lake Tahoe to Oakland to pick up Chris and accompany him to Ed Blake’s lab in Richmond, some thirty minutes north of the airport.
    Dr. Blake had been provided with forty-three items of evidence from the Krone case. While it was fairly straightforward to do the laboratory analysis, it was time-consuming to correlate the results in a detailed report. At the time, Blake and his entire staff were tied up with another case, California v. OJ Simpson. No doubt, they had a few more than forty-three items of evidence to analyze and the Simpson case commanded a bit more attention than did the Krone case. For strategy planning purposes, however, Chris did not want to wait for Dr. Blake’s report, which, as it turned out, would take five months to complete. He especially wanted to know Blake’s position on the bra sample, the results of which included Ray Krone as a possible donor.
    The start of Ray’s trial was twice delayed awaiting the report. On one occasion, attempting to speed up the process, I asked a serologist working at Blake’s lab what was taking so long. “Can’t you find any of OJ’s blood?” His response was a wry smile.
    While waiting for Dr. Blake’s report, Chris became quite familiar with the Simpson case. He appeared several times on “Court TV” as an expert commentator, clarifying the DNA testimony for its audience.
    Being somewhat privy to the inside scoop on the Simpson DNA evidence, I reminded Chris that the crime scene reeked with OJ’s blood. Understanding the dynamics of the case and drawing from experience, he dismissed this fact as inconsequential in relation to the verdict. He predicted that a short deliberation favored acquittal. He was right and, unlike myself and most Americans who followed the case on TV, was not surprised by the verdict.
    “In this business the truth is relative,” he said. It took me a while to understand how that explained the acquittal of OJ Simpson…and other verdicts that went against the evidence.

“The verdict’s in!” This time Chris Plourd made no prediction.
    It was Friday, April 12, 1996. The jury had heard the final arguments of the eight-week trial three days before.
    Chris waited for the verdict in a room he’d taken near the courthouse. For the trial, he had camped in an RV borrowed from his brother, parked in the driveway of Bob Lewis’s house. I stayed at Bob’s. Bob was and still is a good friend of Ray’s. He had been at the birthday party with Ray and other friends the night before the murder. Bob stayed in touch with Ray, visiting him frequently at the county jail in Phoenix and then at the state prison in Florence.
    “I’m on my way.” I hung up the phone in Bob’s guest room.
    Once again and for the last time I was in my car driving the three miles to the county courthouse. On the way Bob Dylan—courtesy of the cassette in the tape player—began singing:

Here comes the story of the Hurricane,
The man the authorities came to blame
For somethin’ that he never done.
Put in a prison cell, but one time he could-a been
The champion of the World.
Some twenty years earlier, Dylan’s ballad “Hurricane” introduced me to the story of Rubin Carter. Before being convicted of a triple murder that occurred in Paterson, New Jersey, “Hurricane” Carter had been the number-one contender for the middleweight boxing crown.
    One night in 1966, two black men entered the Lafayette Café and began shooting up the place. Two men were dead at the scene. A third, badly wounded, said he could identify his assailant.
    Alfred Bello and Arthur Dexter Bradley, both white, were apprehended at the scene. They told the police that they had entered the café after the shooting and were “just robbing the register.” They described the getaway car.
    Shortly after the shootings, Carter’s car was stopped on another side of town by policemen who thought it resembled the getaway car. Driving Carter’s car was John Artis, whom Carter had just met. They lived near each other, so Carter had offered to give Artis a ride home.
    Both were taken to the crime scene to see if anyone could identify them as the gunmen. No one could, including Bello and Bradley. Then they were taken to the wounded man’s hospital room. The dying man told the detectives that it was neither Carter nor Artis who shot him. Both were released.
    Several months later, Carter was arrested and charged with the triple murder. Artis, also arrested and charged, was offered a plea bargain—a lesser sentence—if he would finger Carter as the gunman. He refused. Both were subsequently convicted upon the eyewitness testimony of Bello and Bradley. Each received life imprisonment.
    Sometime after the trial, Bello, now a felon serving time for robbery, recanted his story. So did Bradley. Carter was granted a second trial. But Bello and Bradley went back to their original story. Carter and Artis were convicted a second time, again upon the testimony of these two drunkards from the slums.
    In 1981 John Artis was released, after serving fifteen years. Rubin Carter remained in prison.
    Some years later, based upon new evidence that suggested the time of the 9-1-1 call reporting the crime had been altered, Carter was finally released. This new evidence supported the fact that the actual time of the shooting occurred while Carter was verifiably with friends.
    Rubin Carter spent twenty years in prison.

As I drove to the courthouse, I thought how lucky Ray was compared to Rubin Carter. Forensics had been no help to Carter. The murder weapon was never found, so there was no ballistic or fingerprint evidence to consider. DNA testing was nonexistent at the time, but the gunmen were in and out of the café so quickly that they didn’t leave any. The victim who exonerated Carter had died.
    Ray Krone had Dale Henson and much more going for him. I went over everything in my mind.

Trish testified that she had managed the CBS Lounge for two years. In that time she never closed the bar alone and stated that it would be unusual for someone to do so. She remembered that Ray and his friends began frequenting the CBS Lounge about six weeks before the murder. Mostly they played and practiced darts, preparing for matches in the dart league. Kim Ancona managed the CBS Lounge dart team. Because Ray was a very good dart player, perhaps the best in the league, Kim asked him to substitute on her team whenever there was a cancellation. Trish stated that Kim seemed to have an interest in Ray.
    Ray called Trish at the bar one time to invite her to a lasagna dinner party. She declined but called Kim, mentioned the party, gave her Ray’s phone number and suggested that she “give him a call.”
    Trish detailed the Wednesday night party that had started at the CBS Lounge and ended up at her apartment by way of the Library Lounge. It was Christmas night. Ray, with some friends, came into the CBS Lounge to play darts. Kim was bartending. Except for Ray’s group and two or three others, the bar was dead that night. Trish decided to close early and invited everyone to meet at another bar, the Library Lounge. Ray showed up with his friends. Kim, Trish and Lu arrived in Lu’s pickup truck. When that bar closed, Trish invited everyone to continue the party at her apartment. That’s when Ray was casually paired with Kim. Because it was after 1:00 a.m. and liquor sales were prohibited, Ray made a quick stop at his house for some beer before he and Kim arrived at Trish’s place. There they sat on the floor next to a caged iguana drinking a beer or two while conversing. Trish said that she observed them “kissing and hugging” a few times. After an hour or so they left together.
    Trish told how she had been fired after her shift the next night. Furious with the owner, Hank Arredondo, she stayed up most of those early morning hours phoning employees, including Ancona, asking them to quit in support of her. No one did. Perhaps in frustration, she and Lu decided to get out of town for the weekend. She said they left the next day, the Friday of the weekend Ancona died, and headed for Indian Wells, a small outpost on the Navajo Indian reservation in the northeast corner of Arizona. There, she said, they visited Lu’s relatives. A police report noted that Lu’s mother, Minnie, had confirmed the one night visit from her daughter, who was traveling with “an Anglo female.”
    Upon returning to Phoenix on Sunday and learning of Kim’s murder from a note left by a neighbor, Trish went to the CBS Lounge. There she gave her statement to a detective, including her account of the Christmas party.
    Except for the impromptu Christmas party, no other testimony was offered to establish that Ray Krone was ever out or alone with Kim Ancona. But the detective construed this encounter—Ray driving Kim to and from a party—as a “date.” In his testimony the detective stated that he believed Ray to be lying when Ray denied having ever dated Kim. The detective also testified that, from the preliminary evaluation of the bite mark made at the crime scene, it was determined that the biter had “uneven” teeth. He stated that when talking to Ray he observed uneven teeth and felt that Ray was “distancing” himself from the crime by “lying” that he ever dated the victim.
    The detective seemed to have made the mistake of relying on the initial misinterpretation of the bite mark (to be clarified by upcoming defense experts) and reading too much into Trish’s statement.
    Kate Koester testified that she had worked the afternoon shift the Saturday of the murder. Kim relieved her at 6:00 p.m. Kate stayed at the CBS until about 8:00 p.m., chatting with Kim. Kim was the only one working after 9:00 p.m., when the cook, David Torres, left. According to Koester, she asked Kim if she needed help closing. She said that Kim said she didn’t because she expected “Ray to help her close” and expected “to spend the night with Ray.”
    Koester’s testimony was neutralized when she acknowledged under cross-examination that Kim mentioned only a “Ray” and not specifically “Ray Krone.” Further, a number of witnesses who were in the bar at closing time stated that they expected to see Kim after she closed the bar. A few said they offered to help close, but Kim insisted she didn’t need help and ushered them out.
    The state offered no eyewitnesses who saw Ray Krone in the bar that night. Other than Koester, no one heard Kim say anything about “Ray” helping her close or about spending the night with anyone.
    Kim’s next-door neighbor, Kathy, testified that she came into the bar near closing time to buy cigarettes. She said that she talked with Kim briefly about getting together later, at home after work. She wrote her home phone number on the back of a business card for Kim. Then she returned home and waited for Kim’s call. The business card, along with two one-dollar bills—still in the back pocket of Kim’s pants—were shown to the jury when the pants were entered into evidence.
    Also waiting for Kim that night, in the house directly across the street from Kathy’s place, were Beth and Tennessee Mike.

With Dale Henson waiting in the wings to testify for the defense about the person he saw enter the CBS Lounge and with several items of evidence pointing to Tennessee Mike, Levy, perhaps to lessen their effect, called Tennessee to the stand as a witness for the prosecution.
    Mike remembered the night of December 28, 1991. He had a date with Beth. She had been out with Kim most of the afternoon. The two women returned to Kim’s house about 5:00 p.m. Kim got ready for work. Beth walked across the street to Mike’s house. They first went to the Caravan for a few drinks, then to the CBS Lounge, arriving about 8:00 p.m. Mike preferred the Caravan, but Beth wanted to go to the CBS because Kim was working that night.
    Most of the evening Mike drank and shot darts with his friends, while Beth kept Kim company. He said he did not socialize with Kim at all that night other than when she served him twenty or so Bud Lights—by his count. At 1:15 a.m. bar time, somewhat ahead of actual time, Kim dimmed then turned up the house lights, the usual signal that the bar was closing. Mike, Beth and a few others were the last group to be ushered out. The two drove back to Mike’s place. He did not remember the vehicle he was driving that night but said it was either his blue Toyota pickup or a vehicle from work he described as a white Ford van.
    He admitted that after drinking a few more beers he carried Beth into his bedroom with the intention of having sex. He said that Beth wasn’t in the mood and asked to be taken home. Mike obliged, denying that there had been any serious altercation. Coincidentally, they both lived on West Oregon Avenue, he on the corner of North 21st Avenue, she two miles east. Since Oregon is not a through street, Mike said he first drove south and turned onto Colter Avenue, which runs parallel to Oregon, then drove east on Colter and turned north onto 7th Street toward Beth’s place.
    Tennessee Mike said he returned by the same route. He denied returning on Camelback, four blocks south of and parallel to Colter.
    Mike said he couldn’t sleep the rest of the night. He said he was wired, admitted he had taken speed while at the CBS Lounge and again at home. He watched TV until his roommate awoke. They heard Paul Clark’s revving engine as he left in a big hurry that morning. A little while later the roommate took Clark’s phone call. “Some asshole just killed Kimmie!” was the message. Mike stayed home while his roommate went to the CBS Lounge to investigate. After the roommate returned, Mike went over to Beth’s place and told her the news. Later in the day, they were both interviewed there by a Phoenix detective.
    Mike’s favorite tennis shoe since he was a kid was Converse, but he denied that he ever wore the style of shoe that had the logo “CONS” on its sole. He did not remember whether he still owned a pair of Converse tennis shoes at the time of the murder, but said he would have been wearing either tennis shoes or hiking boots that night. He denied throwing away any tennis shoes after the murder. He acknowledged that he never wore a beard because he was not able to grow one. He insisted that he’d had his moustache since leaving the service in 1981. In the service his duties had been those of a security guard. He admitted having combat training, but denied having any training with a knife. He still had his green military field jacket, but testified that he rarely wore it. He did remember that that night he had worn a blue baseball jacket with “Leisure Club” embroidered on the back. It was a prize for winning a dart tournament.
    Paul Clark remembered Mike’s green military jacket. Under cross-examination he stated that he saw Mike wear it “many times, particularly in the winter months.”
    The first time Mike gave an impression of his teeth was a few weeks before he testified—some four years after the murder. Now he had false teeth. He took his denture out and showed it to the jury. It replaced three of his upper front teeth. While Mike claimed to have had the denture prior to the murder, one might wonder how his teeth were patterned before he had them fixed.
    A month or so before the trial, Chris was in San Diego preparing the case when out of the blue he received a phone call from Teri, another friend of Ancona’s who was in the bar the night of the murder. She confirmed her expectation, shared by several other friends of Ancona, that Ancona would meet up with them and continue to party after Ancona closed the bar. She volunteered one additional important tidbit. She had had a run-in with Mike’s teeth. Chris called her to testify. She stated that she and Mike had dated twice prior to Kim’s death and that during sex Mike had bitten her about the neck and left breast. “It was painful and left marks,” she affirmed.
    Previously, under Levy’s direct examination, Mike had denied ever having had sex with Teri. But under Plourd’s strong cross-examination he admitted to the opposite.
    Before leaving the witness stand Tennessee Mike revealed his ethnic background. “I’m part Mexican, part Apache Indian, part Sioux, part Cherokee and a little white boy.”

Following Tennessee Mike, Levy called Beth to the stand.
    Beth and Kim had been best friends. They supported and confided in one another. Beth would frequently come into the CBS Lounge to keep Kim company while she was bartending.
    Beth had met Ray Krone the first time at the Black Bull, another Phoenix bar, where Ray was playing darts in a league match. Ray was well known and respected in the dart world of Phoenix. It was commonly understood that to win a tournament one would have to beat Ray Krone. Kim was at the Black Bull to watch Ray shoot darts. She had the schedule and knew when and where Ray’s team played. Beth met her there. Beth testified that Kim told her she had a “crush” on Ray, that he was “the real deal.” Beth related how she and an infatuated Kim had driven around late one night trying to find Ray’s house. They never found it.
    Neither Beth nor any other witnesses testified that Ray had a reciprocal interest in Kim.
    Beth told the court that she had planned to be with Tennessee Mike the night of Kim’s death. She showed up early at Kim’s place that afternoon, interrupting her and Paul Clark during the last of the day’s several love-making sessions—four according to Kim, Beth said. Clark testified to three. Beth and Kim spent the rest of the day together, out and about, before Kim had to get ready for work.
    Beth said that Kim was in high spirits. Arredondo was considering her as replacement for Trish, who, two days before, had been relieved of her duties as manager of the CBS Lounge. Kim felt she had a good chance of getting the job. It would be quite a step up from part-time bartending. It would give her the financial freedom to get her own place. According to Beth, Kim’s relationship with Paul was more for convenience than for love.
    Under direct examination, Beth related the same set of events for that night as had Tennessee Mike. But, under cross-examination, discrepancies arose. Plourd interrogated her about her altercation with Mike that led to Mike’s taking her home. She seemed to downplay the incident. Plourd also wanted to know why, in pre-trial interviews, Beth first remembered the time she was taken home to be close to 2:30 a.m. and then revised it to 3:30 for her trial testimony. The earlier time was closer to the time Kim would have been finishing her closing chores and about the time Dale Henson saw someone enter the bar.
    Initially Beth seemed to have suspected Mike. In a previous statement she had said that she asked Mike if he had stopped at CBS Lounge after dropping her off. But under oath she denied ever asking Mike about his trip home.
    Beth and Mike admitted that they had been in telephone contact at the time of their pre-trial interviews. Mike also admitted that he had told Beth she was wrong about the time. Plourd questioned Beth long and hard about the discrepancies between prior statements and her testimony. While Beth under cross-examination admitted to talking with Mike shortly before her testimony, she denied that it had influenced her in any way.
    One could not mistake the implication of Plourd’s cross-examination—that Beth was covering for Mike.
    For Beth the cross-examination was tense and traumatic. Plourd kept her on the stand longer than expected that Friday afternoon. He was not finished with her when time ran out. Beth did not reappear Monday morning. Over the weekend she had checked into a mental hospital because of a “nervous breakdown.” Nine days later, with her therapist waiting outside the courtroom, Beth finished her testimony.
    Initially she had denied ever having had sex with Mike. Now she admitted it but affirmed it hadn’t happened the night of the murder
    From the witness box Beth said, “We’re still friends. We’re not intimate or close now, but I always loved him.”

The state’s lay witnesses had been cross-examined quite effectively, I thought. And Ray Krone had forensic evidence in his favor.
    Karen Jones, the fingerprint specialist who testified at the first trial, took it upon herself to reevaluate all of the latent prints found at the crime scene. This time, a fingerprint found on the paper towel holder was identified as belonging to an individual by the name of David DeGroff.
    DeGroff now lived in Flagstaff and was called to testify. He had been the opening cook the day of the murder, arriving at the CBS Lounge about ten o’clock in the morning and leaving about three o’clock. He stated that he had recently scrubbed down the walls in the restroom and used the towel holder to prop himself up as he cleaned the adjacent wall.
    And Jones found another print of interest in the restroom—a palm print on the lever of the sink faucet. Clearly some cleanup had occurred after the murder, as evidenced by the bloodstained paper towels found in the recently emptied plastic-lined wastebasket. Everyone accepted that the assailant used these towels to wipe fingerprints from the knife found under the basket’s plastic lining.
    Jones was not able to determine who had left the palm print. But she was certain that neither it nor any of the numerous other unidentified latent prints taken from all corners of the crime scene belonged to Ray Krone.
    The Converse tennis shoe prints found at the end of the bar, going into the kitchen to and from the knife rack and moving all around the body, could not be linked to Ray Krone. The best that prosecutor Levy could do was to emphasize that Ray Krone’s shoe size, 11½, fit within the alleged shoe size range of the footprint, 9½ to 11½. But 11½ is not an uncommon shoe size.
    Phoenix police criminologist Scott Piette appeared again for the prosecution. He had nothing of substance to offer in support of the state’s case. Under cross-examination he appeared confused about his own notes. At one point he confirmed his opinion, offered at the first trial, that there was no blood on the victim’s panties. That opinion had been based upon a visual inspection. He acknowledged that there is a simple presumptive test for blood, which he had used on other items of evidence. Would he, with the court’s permission, demonstrate the test to the jury? Sure.
    In court the next day he performed the Kastle-Meyer Test on Ancona’s panties. To his surprise and bewilderment he found blood on them. Whose blood it was went undetermined, because additional tests would take weeks to complete and the trial would be over before then.
    The overall impression Piette left with the jury was that his work on the Krone evidence had been imprecise at best.
    Moses Schanfield appeared for the state. Dr. Schanfield was a well-qualified expert who brought into court more than fifteen years of experience doing DNA analysis. He had earned his Ph.D. in human genetics from the University of Michigan. He was a member of the American Academy of Forensic Scientists and of the American Society of Crime Laboratory Directors. Over the years he had worked in several related fields, from research genetics in San Francisco to paternity testing in Atlanta, before becoming the laboratory director for the Analytic Genetic Testing Center in Denver.
    The AGTC had done the initial DNA testing at the request of prosecutor Levy. But for the second trial, Levy called Schanfield into court to interpret Dr. Blake’s findings regarding DNA Sample 4B, taken from the bra cup.
    Chris Plourd knew Dr. Schanfield well. Like the jurors, he listened quietly to his testimony. “The Sample 4B appears to be a mixture…and Mr. Krone cannot be excluded as contributing to that mixture.”
    Other than Sample 4B, Dr. Blake had favorable things to say about the DNA. But, perhaps not wanting to have the 4B results unduly emphasized under cross-examination by Levy, Plourd dropped Ed Blake from his witness list. Besides, Plourd knew he could get the results he wanted under his own cross-examination of Dr. Schanfield. For this testimony, Plourd concentrated on the DNA sample taken from the area of the bite.
    The swab of the victim’s left breast—the area of the bite—received by Dr. Blake’s lab for analysis was useless. It was basically a stick with fuzz where the cotton tip used to be. Try as they might, the lab could obtain no results. Plourd would have to use the DQα results produced in Dr. Schanfield’s lab at AGTC for the first trial.
    Probes sensitive to each of the six possible DQα alleles are imbedded on “typing strips,” along with a dye. This dye produces a blue dot whenever the probe is stimulated by a DNA source. The probes are numbered corresponding to the allele they are programmed to detect. The typing strip for Ray Krone’s DNA shows only one blue dot, number 3, verifying DQα type [3,3]. On the typing strip for victim Ancona—DQα type [3,4]—both probes 3 and 4 have a blue dot.
    The 3 and 4 probes on the typing strip of the DNA found on the bite mark also turned blue. One possibility was that this sample contained only Ancona’s DNA. Another possibility that had been argued—and not challenged—at the first trial was that Ray Krone could not be excluded as a donor of this sample because Ancona’s 3 allele could be “masking” both of Krone’s 3 alleles. Plourd noticed a subtle difference between the blue spots, which suggested a third possibility.
    Responding to Plourd’s questioning, Dr. Schanfield confirmed that typing strips are designed so that equal amounts of two different alleles will illuminate corresponding dots with equal intensity. Then Plourd asked Schanfield to look closely at the typing strip for the DNA swabbed from the bite mark.
    “The 4 dot is darker than the 3 dot,” observed Dr. Schanfield.
    Plourd then asked, “Because the 4 is darker, it suggests that there is a mixture of a [3,4] person and another person. What type would the other person be?”
    “If it is a mixture of a [3,4] person and somebody else, then the other person would have to be [4,4],” Dr. Schanfield confirmed.
    “Mr. Krone would be positively excluded because he is a [3,3]?” Plourd continued, with emphasis.
    Dr. Schanfield agreed. “That’s correct.”
    Plourd seemed to have won the day. Levy had established that Ray Krone could not be excluded from the DNA mixture of many sources found on the bra, but Plourd established that Ray Krone is excluded if the bite mark sample is a mixture of Ancona and her assailant’s DNA.
    Moses Schanfield seemed surprised and impressed with the result. Apparently, he had not been asked to revisit the typing strips prepared by his lab for the first trial. Passing Plourd on his way out of the courtroom, Schanfield smiled and whispered, “Very good!”
    The next day it was Levy’s turn for the redirect examination. He returned to the bra sample and asked Schanfield what percentage of the population could be included as possible donors of that sample.
    “One in one hundred and seventy,” said Dr. Schanfield.
    This caused quite a stir in the courtroom because this fraction of the population, which included Ray Krone, amounted to less than one percent, and it could be argued that there was a ninety-nine point four percent chance that it was Ray Krone’s DNA on the bra—very compelling for a jury to consider.
    But statistics can be viewed in many different ways. In a city the size of Phoenix, with more than a million people, the zero point six percent of Phoenix’s residents who could also be included as possible DNA donors to Ancona’s bra amounted to more than six thousand individuals. Nevertheless, Plourd objected, citing an Arizona law that prohibits the use of the “product rule” in determining probabilities.
    The product rule works like this: if it is known that one-half of the population are female, one-fifth have blue eyes and one-tenth are blond, then the proportion of the population that is blond blue-eyed female is one in one hundred (1/2 times 1/5 times 1/10 = 1/100), or one percent.
    The product rule is a valid tool in statistics, provided accurate population frequencies are known. The problem is—just as I guessed at the above frequencies to arrive at one percent in the above example—the population frequencies of DNA genetic markers are pretty much guesswork. It is not know with any reliability what percentage of the population have a particular genetic trait. Even Schanfield’s testimony illustrated this dilemma. Before arriving at his guess of one in one hundred and seventy, Schanfield stated that “[Ray Krone] is within the population of less than one in one hundred…actually probably closer to one in two hundred.”
    Because of this damaging misuse of the product rule, Judge McDougall not only sustained Plourd’s objection, but also offered to grant a mistrial.
    It was decided instead to have Schanfield’s inappropriate remarks stricken from the record. The jury was instructed to ignore Schanfield’s statistical conclusions.

Attorney Christopher Plourd
The trial had proceeded. Slowly but surely, the state’s case against Ray Krone had boiled down to Dr. Raymond Rawson and the bite mark.
    Chris Plourd did not wait long to unveil “the scratch.” Cross-examining Levy’s first forensic expert witness, Dr. Larry Shaw, the pathologist who did the autopsy, Plourd asked the witness to compare bite mark photographs taken at the crime scene with those taken at autopsy. Dr. Shaw confirmed that the scratch appeared only in the autopsy photos and felt that somebody had inadvertently scratched the breast during the autopsy. He was sure that the scratch did not exist at the time of death. Plourd would call other expert witnesses who independently affirmed that the scratch was a postmortem artifact, an abrasion made at the time of autopsy.
    Levy grasped the ramifications of this revelation immediately. He realized that Rawson’s boner in identifying the scratch as having been made by one of Ray Krone’s teeth created a major credibility problem. With Dr. Shaw still on the stand, Levy suggested that someone tampered with the crime scene photos. But soon he dropped this strategy because these photos were taken, developed and printed by the Phoenix police department.
    Kevin Denomine worked for the PPD in their crime lab as a fingerprint specialist. He also had expertise in photographing crime scenes and was the one who took most of the photographs of the Ancona murder scene. He did not photograph the bite injury, but was present when Dr. John Piakas did.
    With Denomine on the stand, Levy suggested that the scratch was really in the crime scene bite mark photos but that not everyone was capable of seeing it. Denomine agreed. Levy referred to this phenomenon as “eye-brain coordination.”
    Chris Plourd seemed to be having fun cross-examining Officer Denomine.
    “What is the science of eye-brain coordination?” Plourd asked. “What is it all about?”
    Denomine struggled for an explanation. “Basically that your brain needs to…if you are looking at something it cannot…you can either see fine details or sometimes eyes can be tricked as far as individuals seeing specific details. Not everybody’s capable of seeing the same amount of detail.”
    “That’s eye-brain coordination?” Plourd continued.
    “I’m not a medical doctor. I’m just assuming that if I’m using common sense that I do think it would have something to do with it. I could be incorrect on that.”
    “Is there a science you learned in your photography courses on eye-brain coordination?”
    “No. I remember something from my psychology classes. That’s quite awhile ago.” Then perhaps hoping to end this line of questioning he added, “I’m not an expert in that area.”
    But, Plourd continued to test Denomine’s eye-brain coordination. He showed him a photograph of the bite mark with autopsy stitches visible in one corner and asked, “Do you see this mark here that’s called a scratch?”
    “Does eye-brain coordination affect that at all?”
    “I think everyone in the room can see that.”
    Plourd then handed Denomine another photograph, “Now, using your best eye-brain coordination, do you see the mark in Exhibit 162?”
    For a long moment, Denomine intently studied the exhibit. Then slowly he looked up from the photo. “It’s not recognizable to me. Not in this photograph.”
    Throughout the trial, Plourd continued having fun with “eye-brain coordination.” Several times after an expert witness rendered his opinion, Plourd would ask in jest, “Now that didn’t take eye-brain coordination, did it?” The witness would appear dumbfounded. Some jurors would chuckle. The judge would shake his head. Levy would remain motionless. After pausing a bit, Plourd would withdraw the question.
    Dr. Ray Rawson’s appearance began with some eye-brain coordination of his own. Over Plourd’s objection to relevance, Rawson placed on an easel one at a time three drawings for the jury to see. The first depicted an old hag or a young woman, depending upon how one looked at it. The second appeared to be a vase or the silhouette of two people looking at one another. The last contained just straight lines, but the parallel lines appeared to be curved. When asked which way he saw these optical illusions, Rawson responded, “I see them both ways.”
    Throughout his testimony, seer Rawson claimed to see “the scratch” in all photos of the bite mark. He did not back away from his opinion that “the mark was made by Ray Krone’s tooth number eleven.”
    Overall, Rawson’s testimony remained the same as in the first trial. The injury to the victim’s left breast consisted of multiple bites, two of which he matched to Ray Krone’s dentition. “The scratch” was part of the ten o’clock bite.
    He demonstrated his findings with a newly prepared videotape. The same sliding overlay and fade-in/fade-out techniques were used to demonstrate the matches between each bite mark and Ray Krone’s dentition. In addition, the actual excised breast tissue made an appearance on this tape.
    When Plourd had asked to see the breast tissue during the discovery process, he was informed that it had been misplaced. No one knew what happened to it. He was provided instead with a plaster cast, a model, of the excised breast. Rawson used this model to show how Ray Krone’s lower teeth corresponded to the lower arch of one of the bites. To get the lower teeth to match the model, Rawson tilted it awkwardly and claimed that “the bite came in at a high angle.”
    “To a reasonable degree of medical certainty,” Dr. Rawson concluded, “Ray Krone inflicted the bite injuries to Kim Ancona.”
    Dr. John Piakas, the forensic dentist working for the Phoenix police department, had testified prior to Dr. Rawson and supported Rawson’s conclusion.
    Forensic dentists primarily are asked to identify human remains through dental records. Piakas aspired to becoming a member of the American Board of Forensic Odontology. To do so he would also need to master bite mark analysis. Although he listed in his curriculum vitae that he had been involved in nine bite mark cases, he had testified in only one of them, and that was the first Krone trial. Prior to the first trial he had met with Dr. Rawson. After the meeting he too saw two bite marks. But he did not see “the scratch” back then. Just a few days earlier, Levy had pointed it out to him. Then he saw it in both the crime scene and the autopsy photos he’d taken. However, the bite mark trainee’s eye-brain coordination was not yet fully developed.
    “What made this mark?” Plourd asked.
    “I don’t know,” he told the jury.
    Dr. Piakas would have to work on his eye-brain coordination if he wanted to become a full-fledged bite mark expert. He rendered the second strongest opinion (Rawson’s being the strongest) permitted under the guidelines set by the ABFO.
    “It is very probable that Ray Krone did cause the bite injuries,” opined Dr. Piakas. He explained that “very probable” equates to “more likely than not.”
    Throughout his cross-examination, Plourd tested Rawson’s eye-brain coordination. At one point he read from the transcripts of the first trial, “It was obvious to me that the scratch mark on the ten o’clock bite was not a tooth mark but was made by some kind of sharp pointed instrument. It is superfluous to the bite mark. It was made after the bite mark.”
    “Was that your testimony, Dr. Rawson?”
    “Yes, that was,” replied the bite mark expert.
    “And is it your testimony now that that mark was made entirely by a tooth belonging to Ray Krone.”
    “That’s correct.”
    Then, with Rawson positioned between the jury and an enlargement of a bite mark photo placed on the easel, Plourd, armed with a laser pointer, maneuvered Rawson counterclockwise around the ten o’clock bite tooth by tooth. When he arrived at tooth number eleven, he asked, “Do you see the scratch?”
    “Yes,” Rawson affirmed.
    “Doctor, I would like you to measure straight down from the mole until you hit the scratch and tell us the distance,” Plourd directed.
    A pause, then equivocation, “I wouldn’t do it that way. Normally I would work in my lab with several photographs and I would verify back and forth…”
    “Your honor,” Plourd interrupted, “I would ask you to order the doctor to do as—”
    “Doctor,” the judge directed, “the question is fairly simple. Can you measure it? If you can, please do it. If you can’t, just say ‘no.’”
    Rawson went to work. “Nine millimeters,” came the belabored response.
    In an autopsy photo “the scratch” measured only six millimeters below the mole. Oops! Rawson saw “the scratch” three millimeters below where it actually was. A measurement error of fifty percent. Not very good. Apparently, eye-brain coordination worked only in his lab.
    Dr. Raymond Rawson shuffled out of the courtroom and was overheard to mutter, “I’ve never been cross-examined like that.” Indeed, the bite mark expert seemed to agree that Plourd had effectively challenged his credibility.
    To testify for the defense, Plourd had called three eminently qualified expert forensic odontologists, Dr. Norman “Skip” Sperber from San Diego, Dr. Jerry Vale from Los Angeles and Dr. Homer Campbell from Albuquerque. All three were highly respected founding members of the American Board of Forensic Odontology. All three had agreed that “the scratch” was just a scratch, that there was just one bite inflicted on the left breast and that Ray Krone was excluded as its source.

Other than these three expert odontologists and the perfect witness, most of Plourd’s case had been made during cross-examination of the state’s witnesses.
    Meeting for the first time with his perfect witness, Dale Henson, Plourd had become concerned. Henson was to testify early in the morning. He was tired and nervous. He had been up the previous night cleaning sidewalks and came to court directly from his last job. But he was nervous for another reason. Plourd had just learned from Mike Pain that Henson and been given five polygraph tests by the Phoenix police department.
    Before the jury entered the courtroom, Plourd told the judge, “He’s very nervous because of this situation. It’s extremely unusual. He’s no different from any other witness. I think he has really been harassed. It’s unbelievable what he’s been put through in the nature of questioning. I’ve never seen this happen before.”
    Levy wanted to offer evidence that Henson had lied about the time he’d seen the individual enter and exit the CBS Lounge. The lead detective reported that Henson had told him it was approximately 6:00 a.m. But Henson insisted that he had told the detective 2:30.
    “He did tell the examiner that he lied to the detective in December ’ninety-one with regard to the time,” Levy offered.
    “I never heard that before!” Plourd responded. “It would be nice to get some discovery, your Honor.”
    After a brief consultation with Mike Pain, who had done the Henson interview for the defense, Plourd continued, “After five tests the polygrapher said, ‘Well, it looks like on the polygraph you may not have told the detective the truth about what happened at 2:30.’ Henson responded ‘Well, whatever.’” It was this innocuous response by a badgered Henson that Levy offered as “proof” that Henson had lied about the time he witnessed the individual enter then leave the CBS Lounge.
    Henson’s polygraph results were favorable overall. Plourd wanted to get them in front of the jury. But Judge McDougall ruled, “Polygraph results aren’t admissible.” He did, however, allow Levy to ask Henson about the time discrepancy so long as he referred to the “polygraph examiner” as a “police technician.”
    Levy must have been concerned about Henson’s expected testimony, because behind him—seated in chairs in front of the fence that separates spectators from defendant, attorneys, witnesses, jurors and judge—were several police polygraph examiner technician types watching Henson’s every move and ostensibly taking notes.
    Levy asked Ray Krone to don his lime green ski parka and stand approximately eight feet from the witness. Then, adjusting the lights to try to simulate the night lighting in the CBS parking lot, Levy asked, “Under these conditions, would you look at Mr. Krone? Does he resemble the person that you saw that evening?”
    “No, sir, not at all,” Henson answered firmly.
    Levy’s gallery filed out.

As I pulled into the court parking lot, still reflecting upon the trial that I had watched religiously for the past eight weeks, I felt confident and optimistic. Interrupting Dylan, I parked the car, hurried into the courthouse and awaited the verdict.
    That evening I was back in my car heading north out of Arizona. Ray Krone wasn’t. His trial had gone south. He was once again the convicted murderer of Kimberly Ancona.
    Perhaps the skeptical reader is thinking, No way! Or is wondering what significant fact I’ve omitted. Perhaps you’ve heard that sheets soaked with Ancona’s blood were found in the trunk of Ray Krone’s car. That’s what detective Dennis Olson told the television audience watching the syndicated show “Arrest and Trial.” In the episode titled “Biting Postal Worker,” a scene depicted a pair of bloody sheets being removed from Ray Krone’s Corvette with Olson stating, “We later found out through the crime lab investigation that the blood came from Kim Ancona, the victim.”
    Why did detective Olson lie about the sheets found in Ray Krone’s car? Perhaps, desiring to be on TV, he was just responding to the producer’s head-scratching question, “You mean, all you’ve got on this guy is a bite mark?”
    Doesn’t common sense want to know why bite mark evidence would be needed if sheets stained with the victim’s blood were found in the suspect’s possession?
    Whatever the stains on the sheets were, they were not Ancona’s blood. Although misrepresented on the TV show as being material to the case, these sheets, useless as evidence, were not presented at either of Ray Krone’s trials.
    Prosecutor Levy, also appearing on the show, didn’t mention the sheets either. He said, “The bite mark was crucial because the rest of the forensic evidence was not strong enough.”
    So, that’s it. Ray Krone stood convicted a second time solely upon bite mark evidence disputed by three respected board-certified forensic odontologists and supported only by an expert wannabe and one who fancies himself blessed with a supernatural power of eye-brain coordination that allows him and only him to see a phantom mark that he is certain was made by one of Ray Krone’s teeth.

As the lights of Phoenix faded in the rearview mirror, my thoughts were testing my own eye-brain coordination to the max. What was the explanation for the verdict I’d just witnessed? The relative truths of the Rubin Carter and OJ Simpson verdicts, though the opposite of one another, were easily explained as racial prejudice. The federal judge, when granting Carter habeas corpus, cited that “racism rather than reason” contributed to the verdict. One OJ attorney said of another, “He played the race card from the bottom of the deck.” But what could explain the Krone verdict? Suspect, victim, judge, jurors, attorneys and witnesses were, one and all, Caucasians.
    Haunting me on my long journey home was a comment made some time before, of which I took little notice at the time but which now loomed large. Present when I first introduced the Krone case to Chris Plourd in the patio behind his San Diego office was Don Levine, an attorney who shared office space. Levine listened silently as I outlined the case. At the end of the meeting—with Chris formally retained as Ray’s counsel—Levine congratulated his colleague with a pat on the back and a simultaneous “Good luck!”
    Then, as an afterthought, he added, “Arizona juries do strange things.”
    Indeed they do, I thought, now surrounded by darkness except for headlights guiding me out of Arizona. I wondered why Arizona juries do strange things. But I could come up with no sensible explanation for the strange verdict. Maybe Dylan knew? I turned on the cassette player. A cymbal cracked like a bullwhip, keeping the wailing violin in pace with his hard rocking guitar. Before his harmonica joined the violin, Dylan finished singing his lyric:

Now all the criminals in their coats and their ties
Are free to drink martinis and watch the sun rise
While Rubin sits like Buddha in a ten-foot cell
An innocent man in a living hell.

How can the life of such a man
Be in the palm of some fool’s hand?
To see him obviously framed
Couldn’t help but make me feel ashamed to live in a land
Where justice is a game.
[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

1 comment:

  1. Jim, have you sold any books that you can attribute to purchasers' having seen the Jingle Jangle column here? Or have you received any requests for an autographed copy? If not, maybe it's time to modify our approach to getting out the word about your book. Have any new marketing ideas occurred to you lately?