Destroying & Manipulating Evidence
Wiping the Weapon Clean
Often in wrongfully convicted cases the police are found to have manipulated or even destroyed evidence that would have found the person innocent of the crime he was convicted of. This is exactly what happened to Jason Payne.
Why after the 30/30 rifle was packaged and sent to the DPS crime lab for testing did Lt. Miles Tucker ask that the evidence concerning the rifle be returned without any analysis? Lt. Tucker told DPS it would be quicker to obtain forensic results from Orchid Cellmark Labs in Dallas than DPS. Michelle Bonnette a foensic scientist with DPS testified that she just swabbed the stain detected as blood from the rifle and sent the swabbings to Orchid Cellmark Labs. She didn’t perform any analysis and prepared no report. Nothing in Bonnette's testimony mentioned any testing of smudges consistent in appearance with fingerprints on the rifle which had been detected in crime scene photos. The gun was sent to Orchid Cellmark Labs and their report came back showing no examination was performed on the rifle and NO DNA analysis was ever done on the rifle used to commit the crime (6-109:1-6)? Why would Lt. Tucker tell the DPS lab to ignore DNA analysis on the murder weapon found at the crime scene, have it sent it to Cellmark Labs where no examination was performed and no DNA analysis done?
In cases we have worked in the past when evidence was wiped clean or nearly destroyed it often was still possible, using today's technology to recover some DNA.
In trial transcripts (6-189:10-22) Ranger John Vance told Tucker that his lab technician told him it would be impossible for a gun to have no prints unless the weapon was wiped down. Yet crime scene photo 4A indicates there was blood visible on the barrel of the 30/30 rifle, and Noel Martin stated in his report (Page 7, #34) "Smudges consistent in appearance with fingerprints are visible in crime scene photographs on the barrel of the 30/30 rifle just below the front sight in the same area where the void appears."
Side by Side Comparision
Between the time that photo6 was taken and the time the rifle was packaged and arrived at the DPS crime lab what happened to the blood and smudges? The inference by Tucker was Jason wiped the rifle clean to remove his fingerprints after shooting Nichole and Taylor, and BEFORE the police arrived. Yet in the States brief to the Criminal Court of Appeals (CCA) the inference by Lt. Tucker went from an inference to a fact when the State wrote in their brief (35, 1-2): "As it was unusual for there not to be some indication of handling, the finger points to the Petitioner (Jason) for any alteration of the condition of the rifle.". What the State is saying in their brief is that Jason had to be responsible for that rifle being wiped clean (altered).
But Jason couldn't have possibly wiped that rifle clean because those photos with blood and smudges were taken AFTER the police arrived on the scene while Jason was out in the yard with his daughter and had NO access to the weapon. If Jason didn't wipe the rifle clean who did?
When the police took possession of that rifle after arriving on the crime scene, the condition of the rifle was shown in crime scene photos as having blood dripping down from the barrel and smudges consistent in appearance with fingerprints. Once that rifle was in the police's chain of custody who else had access to that rifle? Who else could have removed the blood and smudges? Did the police let someone outside their chain of custody have access to that rifle; highly unlikely? And once that rifle was in the police's chain of custody Jason certainly had NO access to it. So by default the only people having access to that rifle between the time the crime scene photos were taken and the time the gun was packaged. and sent off to the DPS crime lab for testing were the police. By not preserving the evidence on that rifle and purposely destroying the evidence the police violated Jason's Due Process Clause of the Fourteenth Amendment which requires the State to preserve evidentiary material that might be useful to a criminal defendant as described in ARIZONA v. YOUNGBLOOD488 U.S. 51 (1988). Ask yourself this question: If Jason couldn't have wiped that rifle clean, who would benefit the most by having that rifle wiped clean and infer (later declare in State's brief) it was Jason who wiped it clean? Remember the police and prosecution stated Taylor couldn't have committed suicide. But what if that rifle with smudges consistent in appearance with fingerprints came back showing those fingerprints belonged to Taylor? What would that do the police's conclusion that the crime was a double homicide?
Here is what forensic expert Ed Hueske stated in his report regarding the condition of the murder weapon (30/30 rifle):
The Texas DPS Report of Latent Print Examination dated March 28, 2008 states that no "suitable" prints were developed on any of the evidence. This is presumed to indicate that no identifiable prints were found. However, according to Ranger Kemp's report (page 14, paragraph 4.2), Forensic Scientist Henson stated that no prints whatsoever were found and that indicates "...that someone possibly wiped the weapon down after the weapon was fired."
That revelation is particularly disturbing for a number of reasons:
- An apparent smeared area is visible in a scene image at the line of demarcation of blood on the barrel.
- No evidence of cyano acrylate (superglue) fuming or any other form of latent print processing was evident on any of the metal or wooden surfaces of the rifle.
- No mention of any wipe patterns or photographic documentation thereof has been received.
- The Texas DPS Laboratory Submission Form L-369051 dated as received 12/18/07 specifically requests that DNA testing be conducted on the rifle and ammunition components and yet the Serology/DNA Report dated February 05, 2008 states "No makes no mention of the rifle."
- The Orchid Report of Laboratory Examination dated October 27, 2008 lists a total of 6 submissions (suggestive of DNA swabs) all of which have the notation "NOT EXAMINED".
The questions begged by these various notations are:
- Were DNA swabs, in fact taken from the rifle and if so, when and by whom?
- Who made the decision not to do DNA testing on the rifle and associated ammunition components?
- What procedure was used for testing the rifle and ammunition components for latent prints?
- What is the basis for the purported statement regarding anticipated testimony as to "...someone possibly wiped the weapon down after the weapon was fired"?
Clearly, the most reliable means of establishing who might have fired the rifle lies with "touch DNA" testing as was appropriately requested by Wood County authorities of the Texas Department of Public Safety. Exactly what transpired pursuant to that request and how latent print testing factors into the lack of DNA testing remains to be determined. Ed Hueske's full Report
Moving the Rifle
In crime scene photos 4A, 6A, 7A, 45, 52, 53, 108 the position and location of the rifle is different in each photo. Even taken into consideration that the photos were taken from different angles it doesn't explain how the rifle could be shown in different locations as demonstrated by these photos. What was the original position of the rifle when police arrived on the scene; will we ever know? Was the body moved? Was the rifle moved? Who did this and why? For what purpose would it serve? Was this just sloppy police work or were the police trying to present this as a staged suicide?
Moving the Bodies
Why were the bodies and bedding moved from the crime scene before Noel Martin, a forensic crime scene expert arrived to perform his crime scene reconstruction. As a general rule, at a murder scene when the body(s) is disturbed or moved, evidence is lost.
Were these instances of the police destroying, manipulating and tampering with evidence to validate their conclusion that the crime was a double homicide and not a murder suicide, or just plain sloppy police work? Don’t think police don't tamper with and destroy evidence to reach their conclusion of how a crime happens because there are many innocent people in prison who are the victim of police misconduct; Jason Payne happens to be one of them.