"Lead" and Cut Bone

MISSING “SPECK”

After the partial “kinship” match between some of Janet’s family members and the Rollins Lake Skull (her father was not a match, and had to be excluded), the DA took the case back to grand jury six months later and asked for an indictment for first degree murder based solely upon the opinion of forensic pathologist Patrick Willey, a professor at Chico State University. 

• Willey had an ongoing contract with Placer County, and he had been told by PCSO Bill Summers that law enforcement wanted Willey to find that the remains (skull and femur) were female; that the height, ethnicity, and age matched Janet Kovacich; and, that the cause of death was a gunshot. 

• Although Willey later told the grand jury that he was certain it was both a gunshot hole, and the cause of death—privately he had been clear that he wouldn’t place more than $10 on the chance that his opinion was correct:

•Willey also issued a report to PCSO stating that the femur and skull found together at Rollins Lake with the male dentures belonged to the same human, and that person was female. DNA testing proved that Willey’s expert opinion was 100% incorrect—the femur was male. 

• Gendering human remains is one of the most basic tasks for a forensic anthropologist, and Willey was wrong. In fact, Willey had a long and embarrassing history of being incorrect about cause of death, and age of remains. 

• Ten years later, after the FBI agreed to assist with evidence testing, the Rollins Lake skull was returned to Willey and he had it x-rayed again in an attempt to prove that the “speck” was a real object imbedded in the skull. It did not go as planned—there was no sign of the “speck” on the new x-rays:

• Willey’s mistake about the femur caused concerns from the prosecutors, and they attempted to confirm his finding of “lead” by having the skull swabbed and tested at the FBI lab for gun shot residue. All the lab found were the normal elements in silt from Rollins lake, including gold from the old mine above the lake:

•The FBI was also sent the original evidence collection bag for the skull, which had dirt and debris from the skull sitting in the bottom of it. There was no lead:

•In the end, none of the testing or expert pathologist opinions mattered. The DA took the case to the grand jury and obtained an indictment for 1st Degree Murder with a firearm based solely upon the opinion of Willey, who told the jurors that there was a bullet hole; it was the cause of death; and, that it was confirmed by a lead bullet fragment.

• The jurors did not hear that expert pathologists Dr. Henrikson, Dr. Anthony, Dr. Reiber, and Dr. Rollins had examined the same skull and x-rays and completely disagreed with Willey. They did not see Dr. Henrikson’s written report, and none of the doctors were called to testify. The DA also hid the new round of skull x-rays completed by Willey in 2005 that showed no sign of the “speck” being present in the skull, and the conclusion that perhaps the “fragment” was “actually just an artifact of the x-ray processing.” 

• This was a clear violation of California law:

Penal Code 939.71--If the prosecutor is aware of exculpatory evidence, the prosecutor shall inform the grand jury of its nature and existence. Once the prosecutor has informed the grand jury of exculpatory evidence pursuant to this section, the prosecutor shall inform the grand jury of its duties under Section 939.7. If a failure to comply with the provisions of this section results in substantial prejudice, it shall be grounds for dismissal of the portion of the indictment related to that evidence.

• The defense is not allowed to participate in grand jury proceedings—the very fact that the jury is meeting is a secret. That means that the entire process relies upon the “good faith” and honesty of the District Attorney. Prosecutors have a legal duty to present all of the evidence, including everything that points away from the defendant’s guilt, towards another suspect, or supports the defense/alibi in any way. 

• The withholding of exculpatory evidence by the DA was a misdemeanor in 2007, but now it is a felony:

Penal Code 141 (c)--A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.

• When Paul Kovacich’s defense attorneys realized that the DA had hidden all of the opinions and scientific evidence that proved that there was no bullet hole or fragment, they filed a motion to have the case dismissed. 

• The judge agreed that the DA had violated P.C. §939.71, but ruled that it wouldn’t have mattered to the jurors—they all would have believed Willey over testimony from the four expert pathologists—without even one juror having a reasonable doubt:

•The judge’s ruling was nonsensical. Why would the jurors have believed in a non-existent object that was easily explained as normal noise on an x-ray? Why would they have believed an anthropologist who was wrong about all of his other opinions in the case over four highly respected and trained medical doctors who had testified in dozens of homicide cases? What would the jurors have thought if they had read the emails from Willey expressing doubts about his own opinion, or evidence of all of his other mistakes in the case? The judge didn’t care that the DA violated the law, and Constitutional Due Process, or that Willey was less expert—he simply wanted the help the DA, so he did.

• Normally, this ruling would have been immediately appealed, but Paul Kovacich ran out of money for his private attorneys, and his defense was handed over to the private law office that held the public defender’s contract with the county. Just as Paul was assigned a new attorney, the county contract was replaced with a different law office, and Paul had to start all over again. The ruling was never appealed, and the case moved towards trial. 

• Just as the trial was about to begin, the defense was given a second report from Dr. Symes, and suddenly he was agreeing with his former student and longtime friend, Willey, that the “speck” was a lead bullet fragment. The defense attorney was blindsided, and asked for a delay in the trial to try to consult with experts and find a way to rebut Symes new “opinion.” 

• Normally, all of this testimony would be banned because the “speck” never actually existed, and there was no way for the defense to have it tested, and prove that it wasn’t lead—not being given the chance to impeach the evidence scientifically was a clear due process violation. Neither Willey nor Symes were experts in radiographs or metal analysis, and during the hearing the judge seemed very skeptical:

•When court broke for lunch, the judge seemed ready to find the “lead” testimony too speculative, unscientific, and inadmissible. The judge then considered it off the record during the break:

•When the judge returned, he no longer seemed to care whether or not the proposed opinions were real science, he was just frustrated with the defense attorney’s late request:

•So, in the end, the unscientific testimony about the non-existent “lead bullet fragment” was allowed in simply because the judge was annoyed with defense counsel Spurling, and didn’t want to delay the trial. 

• Obviously, Spurling should have been removed from the case after declaring that he was no longer going offer a proper defense, but he remained, and his relationship with the judge only got worse. 

• Although Spurling was correct that the judge was allowing bad evidence, and blocking the defense case, the proper response would have been to appeal the judge’s ruling, not have a damaging meltdown in the courtroom.

MISSING CUT BONE AT SISTERS OF MERCY

There are hundreds of Auburn PD, PCSO, CalDOJ, and FBI police reports that the Placer DA still refuses to turn over to the defense. 

• Among them are all of the reports from Auburn PD Ron Eason’s 1997 reinvestigation of the Kovacich case—the defense has nothing, not one report. Instead, the defense was given Eason’s typed “summary notes.” 

• Eason's notes were provided in a format that was unsearchable, and with all of the margins off kilter. 

• Prior to trial, nobody on the defense team noticed Eason’s note about collecting into evidence a piece of cut bone that Sisters of Mercy employees found near the back fence of the Kovacich yard:

•When Paul Kovacich's defense attorneys were given the list of evidence in the case around 2006, the cut bone collected by Eason from the adjoining property was not on the list. There was no logical explanation for a piece of cut animal bone to be in the woods, by the Kovacich fence, at a Catholic convent. It was hardly a picnic site. 

• The bone did exist, and it was collected into Auburn PD evidence. It clearly pointed to an area where the Kovaich K-9s, Adolph and Fuzz, came to the fence and barked at strangers. It was evidence that someone had approached the fence, and fed one or both dogs a piece of meat on the bone—like a cut pork spare rib. 

• Because it pointed to both a stranger, and a possible cause of death for Fuzz, it was highly exculpatory evidence that the defense would have wanted to have examined by their experts, and used as evidence at trial—so, of course, it disappeared from the Auburn PD evidence room.

• The Placer DA failed to turn over:  Eason’s police reports; the forensic examination reports on the bone; and then DDA Gazzaniga lied to the judge, and told him that nothing was found on the convent property:

•Hiding exculpatory physical evidence, and lying to the court are prosecutorial misconduct. The police destroying or concealing evidence to prevent the defense from testing it is a due process violation, and a felony. The defense attorneys completely missed the bone, and the jury never heard about it.