Reports highlight more tainted testimony
By SYDNEY P. FREEDBERG
© St. Petersburg Times, published May 3, 2001
Michael Mordenti, a former St. Petersburg used car salesman, has long contended that an FBI agent helped railroad him onto death row for a crime he did not commit.
Now, Justice Department reports seem to back him up.
The reports show the agent, Michael P. Malone, gave improper court testimony in 1991 when Mordenti was convicted of accepting $17,000 to murder Thelma Royston at a Hillsborough County horse farm.
The Mordenti case is among 14 Hillsborough cases that might have been tainted by Malone, long regarded as one of the nation's top hair and fiber experts.
Among other flawed cases in the reports released Wednesday:
Bobby Joe Long, one of Florida's most notorious serial killers of the 1980s. He was sentenced to die for the murder of a Hillsborough woman and got life in prison after pleading guilty to killing eight other Tampa Bay area women.
Isaih Johnson Grady, who got life in prison in 1990 for breaking into a Causeway Boulevard home and locking one woman in a bathroom and raping another. At the time, detectives called him one of the most prolific rapists ever caught in Hillsborough.
Walter Pilgrim Jr., sentenced to life for the 1988 robbery and stabbing murder of Kathleen Connolly, and the arson of her Town 'N Country home.
Malone, who retired in 1999, declined to comment. In the past, he has said he never intentionally lied about evidence, adding that criticisms of his work were "nit-picky" and that any mistake was simply a clerical shortcoming.
He also has said he was always careful to follow FBI standards, with much of his work verified by another FBI examiner and all of it closely supervised.
While working in the FBI crime lab from 1974 to 1994, Malone was involved in roughly 5,000 cases. He testified as an expert witness in about 500 cases, often helping prosecutors win convictions. Many of his cases came from Florida, where local police and prosecutors were especially eager for his testimony.
Then, in 1997, Malone's work -- and that of 12 other FBI lab examiners -- came under fire in a report by the inspector general of the Justice Department.
That report triggered a review of 3,000 potentially flawed criminal cases, including 263 in Florida. The Justice Department hired independent forensic experts to re-examine all the forensic work.
Last year, the Hillsborough State Attorney's Office released reviews of three cases in which Malone's work was crucial to the convictions.
On Wednesday, in response to a new public records request by the St. Petersburg Times, the state attorney's office released 11 more reviews involving 14 defendants in rape and homicide cases dating back to the 1980s.
It is impossible to determine how many of those defendants would have been convicted without Malone's lab work, but the Justice Department reports suggest he gave opinions that were not justified by his tests.
He sometimes testified beyond his expertise, misleading juries about the scientific basis for his conclusions, misstating FBI policy or keeping notes that were inadequate to support his forensic opinions, the reports say.
He "uses abbreviations that are difficult to interpret (such as 'M-It indist, dk dist' and 'cut-ssp' to describe some of the characteristics of the hair," one report says.
In the Mordenti case, defense lawyers have argued that the prosecution convicted the car salesman in a murder-for-hire plot, using "smoke-and-mirror" scientific evidence, among other things.
Prosecutors said that Larry Royston paid Mordenti $17,000 to have his wife killed so he could escape an expensive divorce settlement. Royston died of a drug overdose the night before his trial was to begin.
Malone was called to the stand by then-Assistant State Attorney Karen Cox to bolster a highly circumstantial case against Mordenti. There was no murder weapon, no eyewitness and no physical evidence.
The state's sole witness to place Mordenti in the murder-for-hire plot was his ex-wife, Gail, who received immunity for her testimony.
Malone compared hair found on the victim's clothing with hair samples from Mordenti and could not come up with anything incriminating.
Nonetheless, under Cox's guidance, Malone testified that just because he could not make a match did not mean that Mordenti wasn't there.
"There was no credible basis for this speculation," the defense lawyers, Heidi E. Brewer and John A. Tomasino, contend in a court brief.
Steve Robertson, the forensic examiner hired by the Justice Department to re-examine Malone's work, said that Malone overstated the significance of his hair test results and testified beyond his expertise.
The lawyers appealing Mordenti's death sentence also have criticized another FBI lab examiner who allegedly gave scientifically invalid and misleading testimony about gun evidence in the case. They say prosecutor Cox broke the rules by withholding critical evidence and trying to twist testimony of her star witness.
And Mordenti suffered from an incompetent defense, they add. His lead trial attorney, John Leonard Atti of St. Petersburg, resigned his license to practice in 1993 after charges he misappropriated client funds and failed to provide competent representation in other cases.
The Mordenti case is set for a new hearing in September. The state attorney's office declined to comment.
It is the second Hillsborough case in which Malone and former prosecutor Cox, using questionable hair testimony, teamed up to help send a man to death row.
In the first case, State of Florida vs. Brett Bogle, a Justice Department review made public last year found that Malone misidentified a hair. Bogle's lawyer, who maintains her client is innocent, has asked for a new trial.
Defense lawyers and some forensic experts say the Malone cases reflect systemic problems with hair evidence, which new DNA testing methods have proved notoriously prone to error.
"The whole area of hair microscopy (looking at hair under a microscope) is junk science," said defense attorney Barry Scheck, who has used DNA testing to free several death row inmates originally linked to crimes by hair evidence. "In case after case that we're probing, hair is unreliable."
Scheck called for an investigation of Florida convictions in which death row inmates await execution, at least partly because of Malone's testimony.
Assistant State Attorney Sharon Vollrath said Wednesday that besides the Mordenti and Bogle cases, she is unaware of any defendant who has asked for a new trial because of faulty FBI evidence.
But prosecutors expect a new challenge from Bobby Joe Long, the serial killer. The problem in his case concerns fiber evidence.
At the time, Malone said tests proved that fiber from the carpet in Long's car matched fibers found on several of his murder victims. It was the key evidence tying the homicides.
Long pleaded guilty to the Hillsborough County murders in September 1995 after detectives confronted him with the evidence.
But the Justice Department review raises the possibility that the fibers, which had color differences, came from different sources.
"Much of the data on the fiber comparison . . . is marginal and incomplete," the reports say. "Conclusions based upon undocumented or incomplete data are not scientifically acceptable."
- Researchers Kitty Bennett and John Martin contributed to this report.
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