Northwestern Law: News

April 30, 2003
Orlando Sentinel

EX-MASCOTTE OFFICER DESERVES ANOTHER TRIAL

By Lauren Ritchie

The evidence was hardly overwhelming when James Duckett was convicted of first-degree murder in 1988 and sentenced to death.

Today, some of the testimony in the case has crumbled and pieces of evidence are in disarray as the former Mascotte police officer is preparing for new DNA testing he hopes will clear him.

Is Duckett guilty of raping and killing 11-year-old Teresa McAbee and dumping her body near Knight Lake while he was on duty on a fine May night?

I do not know. A decade after the crime, I wrote a column urging a second look at the case. Six years later, I feel even stronger about this. More information has come to light showing how badly the evidence may have been bungled. It's fouled up enough that a new trial is in order.

Lately, activists across the country have been getting death-row inmates exonerated in surprising numbers. At my alma mater, Northwestern University, the school's college of law sponsors a Center on Wrongful Convictions, which is staffed partly by students from the journalism school. They've been involved in the cases of 11 of the 17 people released from death row in Illinois since the death penalty was re-instituted in 1977. That's 5.7 percent of the 298 people sentenced to death in that time.

The center's work was behind Gov. George H. Ryan's decision in January to commute the sentence of every death-row inmate in the state. He said in a speech at the law school that those in the justice system had refused to act, and he could not live with himself if he failed to right a wrong.

Today's column is not an argument that Duckett, at the time a 29-year-old rookie cop in the south Lake town of 1,600 people, is innocent. It is an argument that says we'd better be certain that he is guilty before we take his life. If those in the justice system know there was something awry in the trial -- and they have to know it by now -- they should work to make it right.

Consider first the nature of law enforcement in Lake County and the political circumstances surrounding Duckett's arrest.

The sheriff was Noel E. Griffin Jr., who had just botched the Wall Sink murder case involving the slaying of a ranch owner and his foremen -- to the point that former Lake Circuit Judge C. Welborn Daniel declared the sheriff's testimony couldn't be believed. The sheriff also was under heavy fire from the media, particularly the Daily Commercial, which published a series of stories detailing items missing from the department's supposedly secure evidence locker.

And election time was coming.

Amid all this, the body of Teresa, a fifth-grader at Mascotte Elementary, surfaced in the shallows of Knight Lake on May 12.. The child had walked about 10 p.m. to a nearby convenience store to buy a pencil to do her homework. She never returned, and her mother had reported her missing about midnight.

The key pieces of evidence that convicted Duckett were his squad car's tire tracks at the scene, testimony of an expert about hair, fingerprints on Duckett's cruiser and the word of a 16-year-old thief.

Tire tracks near Knight Lake matched those from Duckett's patrol car, and her palm print was found on the hood of his car, fingers pointing outward as if she were sitting on the hood. Duckett's explanation was that he saw and talked with the child at the store. He said he urged her to go home because the city's 10:30 p.m. curfew for children was approaching. And Duckett says that he drove around Knight Lake looking for Teresa after her mother summoned police.

All of that is hardly conclusive on its own. A single pubic hair found in Teresa's underpants was the sole piece of critical physical evidence.

Experts from the Florida Department of Law Enforcement's laboratory examined that hair and 30 taken from Duckett for comparison. Twenty-eight of Duckett's hairs had nothing in common with the one left on the child, presumably by the rapist and killer. The remaining two Duckett hairs showed some characteristics in common with the single hair -- along with some differences. At the time, DNA testing wasn't advanced enough to test hairs without follicles, which the single hair lacked.

Jurors learned at the trial, however, that the prosecution had ignored a request from the FDLE for more Duckett hair samples and had shopped around until it found an expert to say that the hairs matched.

That "expert" was a chap named Michael Malone, a decorated senior agent in the FBI's crime lab in Washington, D.C., who provided the most damning piece of testimony in the trial. He declared that one of Duckett's hairs had "exactly the same characteristics" and was "completely indistinguishable" from the one found in Teresa's panties.

Malone has been at the heart of a number of controversial cases -- the North Carolina Army surgeon accused of killing his family and the impeachment of U.S. District Judge Alcee Hastings are two. So when a scandal over forensic bungling at the crime lab broke out in the late 1990s, Malone was in the middle of that, too.

The Justice Department's inspector general at the time issued a scathing report that singled out Malone and a dozen other agents for scientifically flawed reports in 18 high-profile cases, including O.J. Simpson's, the Oklahoma City bombing and the case of John Hinckley, the man who shot former President Reagan.

Inspector General Michael Bromwich concluded that Malone had "testified falsely" on 27 different points -- you and I know that as "lying" -- in the impeachment of Hastings. Malone said he had conducted one of the tests himself on a purse that Hastings had submitted as evidence during the bribery scandal. He hadn't, and the agent who actually did the tests blew the whistle. That started the probe.

The St. Petersburg Times and the Wall Street Journal reported in 1997 that local prosecutors of 3,000 cases in which Malone and his colleagues had testified -- 263 in Florida -- were notified that the agents had misrepresented evidence, did shoddy work and in some cases lied. Prosecutors were left to decide whether to revisit any convictions.

Some did. Take, for example, the case of a Rhode Island man convicted of raping a woman at knifepoint in 1988. Superior Court Judge Stephen J. Fortunato Jr. ruled in 2001 that Malone had misrepresented forensic evidence. He called the FBI agent a "rogue" and ordered the release of Carlton Bleau, 63. The man had been sentenced to 55 years in prison -- based mostly on the testimony of Malone -- and had already spent 9 1/2 behind bars.

The St. Petersburg Times documented four Florida cases other than Duckett's in which Malone played a pivotal role in a murder conviction.

One of those, according to an August 2000 article in the Los Angeles Times, was a death-row inmate whose life, like Duckett's, hinged largely on a single strand of hair and Malone's identification of it. Brett Bogle was 22 when he was arrested in 1991 for raping and killing his girlfriend's sister outside a bar near Tampa. At Bogle's trial, Malone testified that three hairs found on Bogle's clothing belonged to the victim -- two head hairs and one pubic hair. The pubic hair was the crucial evidence tying Bogle to the rape, and by extension, the murder.

After the crime-lab scandal broke, the FBI sent Malone's analysis to an independent scientist, who reported on Sept. 13, 1999, that the pubic hair was actually a third head hair from the victim and not a pubic hair at all. Bogle appealed, and the court review is ongoing. The scientist also concluded that Malone's work was not adequately documented and his testimony differed from his lab notes.

That's the integrity level of the first of two key witnesses against Duckett.

Friday, we'll examine the second shining star in the case, a 16-year-old pregnant girl who was in the Lake County Jail for violating her probation on a felony theft conviction.

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