DA's probe of crime lab criticized

Appellate Coordinator Disputes Finding that Error was Minimal

January 2, 2008

By Leslie Griffy, Mercury News

The Santa Clara County district attorney's investigation of a faulty crime lab analysis that helped send an innocent man to prison was flawed and should be reopened, the director of a state agency that coordinates criminal appeals contended Wednesday.

Michael Kresser, the executive director of the Sixth District Appellate Project, said in a letter to District Attorney Dolores Carr that her internal investigation overlooked significant evidence that the lab report and testimony by analyst Mark Moriyama was more than a problem of language, as Carr had claimed.

And separately Wednesday, the policy director at the New York Innocence Project, Stephen Saloom said the local investigation did not follow the spirit of federal law that calls for independent investigations. Other jurisdictions have turned to outside agencies to conduct such probes.

The questions about the district attorney's investigation are the latest development in a case that has plagued Carr since she took office in January. Less than a month later, her office dropped charges against robbery suspect Jeffrey Rodriguez after discovering that the crime lab analyst wrongly testified that incriminating evidence of motor oil was found on Rodriguez's jeans.

But last month, prosecutors tried without success to prevent a Superior Court judge from taking the rare step of declaring Rodriguez factually innocent of committing the 2001 robbery on the loading dock of a Kragen Auto Parts store in San Jose. Separately, Carr's office concluded an internal investigation by defending Moriyama's scientific analysis.

In his letter to Carr, a copy of which Kresser provided to the Mercury News, Kresser said Carr's conclusions conflicted with evidence and failed to pursue some lines of inquiry. As a result, he wrote, "I am requesting that you complete the investigation and reconsider your finding."

A spokeswoman for the district attorney said Wednesday that the office had not yet received the letter and could not comment. But Carr has insisted generally that her investigation was thorough and fair, and that her office demonstrated its quest for justice by deciding to drop the charges rather than retry Rodriguez.

Moriyama concluded in his report, and later testified at a 2003 trial, that an analysis of Rodriguez's jeans found a substance "indicative" of motor oil as well as cooking oil - evidence that prosecutor John Luft contended would have come from the unusual mixture of oils on the loading dock.

Rodriguez was convicted at the trial. But the conviction was overturned on appeal, based on poor representation Rodriguez received at trial.

Kresser's office oversaw that appeal; once the new trial was ordered, his office retained no role in the case.

After the conviction was overturned, state and federal analysts re-examined the pants and said they could not tell what made up the stain. Its chemical compounds could have come from soaps or simply the pants themselves, they said.

The district attorney dropped charges against Rodriguez at that point; the Northern California Innocence Project then filed a formal complaint, triggering the investigation that caused Carr to blame the problems in the case largely on a mistake of wording.

Her investigation noted that the outside analysts agreed with Moriyama on the chemical analysis. She contended the real problem was that Moriyama went further than other analysts in saying the stain "was indicative" of motor oil, and then failed to clarify that finding when he was asked questions in court that presumed he had found motor oil on the jeans.

Kresser, in his letter to Carr, noted that Carr's own investigator had highlighted that failure during Moriyama's testimony. "Your investigator found this omission 'troubling,' yet you apparently did not," Kresser wrote in his letter.