Break in his case came from the FBI

Dec. 10, 2007

Florida

Break in his case came from the FBI

The evidence used to convict Derrick Smith was based on shaky science.

By Meg Laughlin, St. Petersburg Times

A few weeks ago, attorney Martin McClain was pushing a boulder up a
mountain, trying one more time to persuade a judge to hear new evidence for
a death row inmate convicted of killing a St. Petersburg cab driver.

McClain had several arguments to make: that the prosecution had withheld
important information about a key witness; that lethal injection in Florida
was cruel and unusual; and last, that the method the FBI used to link his
client, Derrick Smith, to a bullet fragment recovered from the cab driver
was scientifically bogus.

"I hoped the judge would reverse his opinion," said McClain. "But I knew it
was an uphill climb."

Then something remarkable happened.

On Nov. 18 McClain got a call from his colleague Terri Backhus: "Did you see
60 Minutes? This could be huge for Derrick Smith."

That evening 60 Minutes had aired a segment about a joint investigation with
the Washington Post. The segment began: "There are hundreds of defendants
imprisoned around the country who were convicted with the help of a now
discredited forensic tool."

That tool, called "FBI bullet lead analysis," which had been relied upon
since the 1960s in more than 2,500 cases across the country, was the very
test that had produced the main forensic evidence in the Smith case.

But now FBI officials were admitting on camera that "the science doesn't
support it."

"The testimony was misleading and inappropriate in criminal trials," former
FBI lab director Dwight Adams told60 Minutes.

McClain couldn't believe the timing.

"I have a tiny window for refiling in the Smith case, and while it's still
open the FBI steps forward," he said. "I've never heard of new evidence of
this magnitude coming out at this stage, between pleadings."

***

Shortly after midnight on March 21, 1981, Jeffrey Songer got a call for a
fare at a barbecue restaurant in St. Petersburg's Midtown. Whoever Songer
picked up there told him to drive to a nearby neighborhood where he was shot
in the back and died.

The case against Derrick Smith was built on fingerprints of his found on the
pay phone at the barbecue restaurant, a witness who said he saw him there
but couldn't identify him after, and the statements of a co-defendant and a
prison inmate, each of whom had something to gain by blaming Smith.

His co-defendant, Derrick Johnson, said he and Smith were in the cab, but
that it was Smith who shot Songer in the back during a botched robbery.
Smith said he never got in the cab. He did rob a couple at gunpoint, at noon
the next day. No gun was ever found - either for the Songer murder or the
robbery the next day.

But the one piece of evidence that seemed beyond question was the bullet
fragment from the murder scene that the FBI said matched a box of bullets at
the home of Smith's uncle, where Smith had recently visited.

At Smith's 1983 murder trial, a 1990 retrial and a 2002 evidentiary hearing,
FBI witnesses insisted that their testing of the bullets proved that Smith
was linked to the murder. At retrial, a prosecutor told jurors that if they
doubted witness testimony, they need only consider this "technical evidence"
to corroborate it.

In 2002, an FBI lab director testified that the odds were "essentially
nothing" that the match of the fragment to the bullets in the box could have
been by chance.

The FBI witnesses explained that their tests used extreme heat to measure
the waves of energy thrown off by different metals in the lead. The results,
they said, showed that five metals found in the fragment were found in
almost exactly the same quantity in the unspent bullets. It was like a
chemical fingerprint connecting Smith to the crime.

McClain presented an expert, too, a well-known metallurgist, who said that
the matching of the amounts of metals "shows nothing about a fragment
matching a bullet in a box." How metals congregate in bullets when lead is
melted was coincidental, he said, and, despite the similarities, did not
relate to where bullets originated. Hundreds of thousands of bullets matched
this way, proving nothing, he said.

The judge, however, was not convinced.

In his latest rejection of the defense argument last month, Pinellas Circuit
Judge Mark Shames referred to a 2004 National Academy of Sciences report
provided by McClain. The report, commissioned by the FBI, was critical of
the FBI's conclusions on bullet matching, saying "available data do not
support any statement that a crime scene bullet came from a particular box
of ammunition."

But Shames said the report simply "indicates the differences in opinion." He
didn't give the report any greater weight than other expert testimony.

"The opinions of one group of experts over another does not qualify as newly
discovered evidence," he concluded.

***

At the end of the 60 Minutes program, the commentator announced that the FBI
had acknowledged its experts "made mistakes in handling bullet lead
testimony and should have done more to alert defendants and the courts."
With this admission, the debate between experts was over.

FBI assistant director John Miller issued this statement: "We are going the
entire distance to see that justice is now served."

The FBI is handing over thousands of cases, involving bullet lead analysis,
to the National Association of Criminal Defense attorneys and the Innocence
Project for review. The investigation, which an NACDL spokesperson calls
"the biggest retroactive crime lab investigation ever done," will include
the Derrick Smith case and three other Florida cases.

"The Smith case will be among the earliest to test how the courts handle the
FBI's admission," said McClain.

***

Patricia Songer, mother of Jeffrey Songer, is "extremely interested" in what
the FBI's rejection of the forensic evidence will mean to the Smith case.
She does believe, however, that "other things linked Derrick Smith to the
killing."

For her, the strongest evidence was the testimony of Derrick Johnson whom
she found to be "a very reliable witness." Johnson served 10 years in prison
and now lives in New York.

"I believed him when he said it was Smith who shot Jeffrey," she said.

But her daughter, Lynn Songer, is not so sure Johnson was telling the truth
about Smith killing her brother.

"Maybe Johnson was a little smarter and knew how to manipulate the jury to
avoid a death sentence," she said. "It wouldn't surprise me if somebody
decided it was Smith and then put a lot of stuff together to make it stick."

Both mother and daughter are waiting for word of whether McClain's newly
buttressed argumentswill alter the judge's opinion.

"I'm not sympathetic with Smith," says Patricia Songer, "but I'm willing to
listen if the evidence falls apart."

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Source : St. Petersburg Times