Bloodsworth (2 page)

Morin smiled and nodded. He picked up his file and got into his car.

O
VER THE FOLLOWING THREE
Years, from early 1989 through early 1992, neck deep in dozens of other pressing death penalty cases and trying to help his wife raise their two young sons, Bob Morin devoted every spare minute to the details of Kirk Bloodsworth's life, his case, the circumstances of the crime, the manner of the police investigation, and the actual trials. All of this and particularly Bloodsworth himself—his background, his natural dignity—further convinced Morin that he had an innocent man for a client. The dilemma was how to prove it.

Trying to find some basis on which to make a case, some edge, however slight, Morin exhausted every available legal remedy. Building on what other lawyers representing Bloodsworth had done before him, he hired investigators to pursue leads concerning other suspects dismissed by the police, searching under every rock from Maryland to California to try to find evidence that would establish the identity of the real murderer. The information pointing to a different killer that he amassed was disturbing, even convincing, but not legally sufficient to clear Bloodsworth. Morin tried to locate the child eyewitnesses, witnesses who'd since grown up whose testimony
convinced two juries to convict his client, to see if they'd admit to error or a change of mind. He prepared and filed a habeas corpus petition, known as a collateral attack, a way to challenge the conviction on federal constitutional grounds never raised before. He even tracked down evidence of two murders that occurred after Bloodsworth's incarceration, murders that bore features strikingly similar to the crime for which his client was convicted. He was hoping to establish that a killer with the same modus operandi was still at large and that Bloodsworth thus was innocent. Again, this information, while unsettling, was not legally sufficient to compel his client's release. Morin had come up empty on all counts. Every effort led to a dead-end. He had nearly lost hope and given up when Kirk Bloodsworth's own reading and bullheaded obstinacy convinced Morin to reconsider the use of an emerging forensic tool, one unheard of just seven years earlier, in 1985, when Bloodsworth was initially tried.

Kirk had been reading everything he could get his hands on in the prison library—newspaper articles, magazine pieces, legal treatises and appellate cases from old law books, as well as other second-hand books donated to the prison by local civil rights groups, churches, and charities. He read with a purpose, looking always for a door, a hook, anything to help prove his innocence. He had come across a recently published work of nonfiction, a true crime story by Joseph Wambaugh titled
The Blooding,
that described how in England a scientific technique called genetic fingerprinting
was first used to solve a double murder. A young scientist there, Alec Jeffreys, had discovered a way to identify and compare DNA patterns extracted from blood or semen samples, patterns that like fingerprints are unique to each individual. In the village of Narborough, near the city of Leicestershire, two teenage girls had been raped and killed three years apart. The assailant had left semen on the body and clothes of each victim. By using his genetic fingerprinting, Jeffreys determined that the killer of both girls was the same man. The Leicestershire Constabulary, relying on this new science, had then undertaken to obtain a blood sample from every sexually active male living in the vicinity and to compare the DNA from each with that left by the killer. Incredibly, over a period of several years, police “blooded”—drew and tested the blood from—over three thousand men. Alec Jeffreys's technique worked. In late 1987 the investigators found the DNA match. They arrested the killer, who confessed to both crimes. Kirk Bloodsworth read the book in one sitting and excitedly contacted Morin.

In 1989, when Morin had first accepted Bloodsworth as a client, DNA testing was still in its early stages, though it was starting to generate interest in the legal community. Few people, however, seemed to understand its applications, how it worked, or how to interpret its results. It had never been used defensively in a capital case or to clear a convicted murderer. Nonetheless, Morin had considered whether a DNA test might help Kirk. He'd contacted a leading DNA laboratory in the country, Cellmark Diagnostics, to learn what would be needed to pursue a DNA analysis. Morin had reviewed all of the forensic reports in the file. The FBI had analyzed the crime scene evidence and reported that there had not been any spermatozoa or foreign blood specimens detected or preserved. Though cotton swabs had been used to gather fluid samples from the victim at autopsy, which were then smeared on glass slides, no semen had been found by the FBI. Morin had written to Bloodsworth's prosecutors, requesting that any fluid specimens of the assailant be tested. They'd written back, reiterating that no such fluid specimens existed. According to Cellmark Diagnostics, even if the slides had contained identifiable semen, Cellmark's testing techniques in 1989 could not analyze trace specimens preserved on glass slides. Moreover, any attempt to test them would probably completely destroy any existing DNA sample.

But Kirk, fired up after reading
The Blooding,
blew over all these old “details.” He wanted a DNA test pursued. He called Morin repeatedly and pestered him about it. He wanted the evidence sent to a private DNA lab for testing. Morin knew that the science was changing fast. DNA technology was in a dynamic state. Scientists around the world were experimenting with improved methods for identifying, extracting, and testing DNA from a variety of sources. Breakthroughs probably would be forthcoming. If his client would be patient, Morin believed, the techniques might improve. The risks of an unsuccessful test destroying any remaining DNA might diminish. Morin cautioned his client to wait, to be patient. But Kirk was done with waiting. He was the one rotting away in a cell. “My life's not worth living in here,” he told his lawyer. “Guys get jammed here every week. Black Smoky last month—somebody tied his neck to an overhead steam pipe. Guards called it suicide. And he was decent. One of the few.”

They sat in the visiting room of the penitentiary surrounded by inmates. A March snow fell outside the barred window. Next to them a couple kissed while a guard pretended to look away. In the corner, another inmate, watching the couple kissing, played with himself.

Kirk was quiet, but unyielding. “And it's more than that. Living with what they've done to me I'd rather go for broke. It's my call now. You told me that. And I want it tested.”

Bob Morin, despite three years of effort, knew he had run out of options. Although he believed the attempt would prove futile, he agreed to revisit a DNA analysis for Kirk. Initially, he wasn't even sure where to begin. The road turned out to be as twisted as the bizarre facts surrounding Kirk Bloodsworth's convictions.

A
CCORDING TO THE
FBI, the physical evidence collected at the murder scene in 1984 had yielded no useful information. In an effort to look for a possible blood type back then, cotton swabs had been used to capture fluid specimens from the victim's vagina and rectum at autopsy. Residue from these swabs was then smeared on glass slides and stained with a preservative. While the state medical examiner, using a microscope, had noted some spermatozoa on the slides, the FBI had analyzed the cotton swabs and determined that no semen was present. The FBI also reported that no semen traces and no foreign blood had been found on the victim's clothing.

Morin had first to determine whether this crime scene evidence still existed, and if so, where it was stored. If he could locate the evidence, he'd have to then persuade both the prosecutors and the court to permit him access to the evidence to send it off for testing. He'd have to further research testing facilities—find the labora-tory with the most advanced techniques in DNA analysis, one that would be willing to take on the challenge. If all this could be accomplished, and even in the unlikely event that traces of sperm were found, he didn't know whether DNA could be retrieved and
analyzed from such traces, particularly after the passage of so much time.

When Bob Morin first agreed to represent Bloodsworth, he'd obtained a court order requiring the state to preserve all of the existing evidence. He learned that the cotton swabs were still available at the FBI. Through persistent calls and interviews, he discovered that the state medical examiner's office had kept the glass slides preserved in a freezer. By personally rummaging through the court clerk's office, Morin also found the victim's clothing, the murder weapon, and the other physical evidence taken from the crime scene in a cardboard box. This was a start.

Morin understood that most efforts to lift preserved specimens of DNA off glass slides still were unsuccessful. The stain used to preserve the specimens on slides back in 1984, before genetic fingerprinting was even heard of, tended to degrade the DNA, and the most widely used technique for analyzing DNA—the one employed by Cellmark and most other labs—usually consumed the sample, leaving nothing left to test. Morin discovered, though, that a laboratory in Richmond, California, was employing an advanced technology that was capable of extracting and analyzing DNA from a very small amount of biological material. Forensic Science Associates was run by Dr. Edward T. Blake, a leading scientist in the developing field of forensic use of DNA for criminal identification purposes. Blake's lab, employing this new technique for amplifying DNA, known as PCR—polymerase chain reaction—was capable, under some circumstances, of identifying and reproducing tiny amounts of genetic material so that it then could be successfully analyzed. Given the FBI's findings, and believing that the slides and swabs were probably of no help, Morin asked if Blake's lab could examine and test
all
of the crime scene evidence, including the girl's clothing, the scrapings underneath her fingernails, the murder weapon as well. If he was going to take a last shot, he figured
he'd at least put everything in the hopper. If any semen could be found or blood that was not the victim's, and DNA retrieved, it could be compared with a DNA sample from Kirk Bloodsworth. Dr. Blake's lab was willing to test it all, provided it got paid. The cost, the lab estimated, could run between $10,000 and $12,000.

Fortunately for Bloodsworth, his conviction and imprisonment had remained controversial. Questions occasionally still surfaced in the press about the quality of the evidence against him—that most of it was circumstantial, that no scientific proof tied him to the crime scene, and that the two key identification witnesses against him had been a seven-year-old and a ten-year-old. The prosecutors who tried and convicted him were cocksure that Bloodsworth was the murderer, but they were rankled by the lingering doubts. While skeptical that a DNA test would shed any light on the crime, they were certain that if it did, it would resolve any question about Bloodsworth's guilt. Consequently, they cut a deal with Morin. Provided Morin was willing to pay for the test, they'd agree to release the crime scene evidence to Morin to be sent to the laboratory. If any DNA could be retrieved and identified, it would be matched against Bloodsworth's. The results would then be made public, whatever they showed. The prosecutors told Morin that they looked forward to scientific confirmation that Bloodsworth was the murderer.

Morin talked it over with his partners, Gerry Fisher and David Kagan-Kans. The three were seated at a card table they sometimes used for conferences in their office. Morin told them that the test would probably yield no new information. The lab expense was steep, and there was little likelihood they'd be reimbursed. Still, he needed to be able to tell Kirk Bloodsworth that he had done everything in his power to help him.

“I'll just have to find another couple of fee cases,” Gerry Fisher said, leaning back. “Beat the bushes a bit.”

“Yeah,” David Kagan-Kans said. “Me too.”

In August 1992, after months of negotiations and wrangling over arrangements with the prosecutors, Morin obtained the evidence and sent it, along with a sample of Kirk's blood, to the California lab. Three months passed with no word. He was not surprised. He had no expectations.

The day before Thanksgiving, Morin received the strangest and most unexpected of phone calls. A lab technician working for Dr. Blake called late in the evening. She said they'd found a stain of semen on the girl's underpants. Morin was astonished. Back in 1984 the FBI lab had reported that there wasn't any identifiable semen on the panties.

“Are you sure?” he asked.

“I'm looking through the microscope at the little sperm heads right now,” she answered.

She wanted to know if Morin wanted the semen found on the girl's panties lifted and tested. She cautioned him. Utilizing the PCR technology, a DNA test could only exclude about 90 percent of the population. Morin's client could be grouped in that other 10 percent, she advised. There was a significant risk that DNA from the sperm might be compatible with Kirk Bloodsworth's, even if he weren't the actual donor. And Morin remained concerned that the test might compromise the sample, that there might not be the opportunity to test the semen again. Did he want to take the risk?

M
ORIN DROVE TO
Baltimore and met with Kirk on Thanksgiving Day. Kirk had just finished a plate of turkey and watered-down mashed potatoes. Morin told him the good news and the bad. He explained that if the DNA from the sperm stain was found to be consistent with Kirk's DNA, while not probative of anything, Kirk's effort to free himself would be over.

Kirk, when he heard they'd found a trace of semen on the girl's
panties, started crying. It took him several minutes to compose himself. He listened carefully to Morin's cautionary warnings, nodding the entire time. “Test it,” he said, as tears streamed down his large, flushed faced. “Test it. It's there for a reason. It's my ticket out of here. Test it . . .”