The break in his case came from the FBI
Evidence used to convict a man of a St. Petersburg murder relied on shaky science.
By MEG LAUGHLIN, Times Staff Writer
Published December 11, 2007
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, 1983, 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 that 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, who asked Judge Shames last Friday for another evidentiary hearing based upon the 60 Minutes information.
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 arguments will 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."
Meg Laughlin can be reached at firstname.lastname@example.org.
[Last modified December 11, 2007, 01:38:16]
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