By David M. Greenwald
Santa Ana, CA – Todd Spitzer, it is hard to believe, was once elected to get rid of a corrupt DA, Tony Rackaukas. Instead, the scope of the corruption has expanded from the informant scandal to the evidence scandal, to questions about racism and sexual harassment, and now the latest coming out last week.
Last week we learned that the OCDA’s office has launched a review of a forensic analyst who was accused of cooking the books to aid the prosecution. According to the media, the review was announced this week “after forensic specialist Mary Hong could not support her earlier analysis in a murder case. Hong’s reluctance to testify led to the release of a man who was allowed to plead guilty to a lesser charge of manslaughter” allowing him to be released after serving nine years in jail.
“She cooked the books. She got rid of all the red flags,” Chuck Hasse, an Assistant Public Defender said.
The revelations are that the DNA analyst improperly disregarded genetic markers that would have shown the DNA on a victim’s wrist did not belong to a defendant who’d been in custody for over nine years.
“This is yet another homicide case that’s been upended by improper conduct that Todd Spitzer knew about for some time,” said Pete Hardin, opponent to DA Todd Spitzer.
He continued, “Doing the right thing only after the Public Defender’s office exposes injustice isn’t doing the right thing—it’s perpetuating the win-at-all-costs mentality that Spitzer campaigned on ending four years ago. Todd Spitzer should have proactively reviewed every case touched by Mary Hong long ago, instead he relied on tainted testimony until he got caught.
“Before another homicide conviction is vacated or we send an innocent person to prison, the Office of Independent Review should audit OCDA’s policies and procedures for identifying and responding to improprieties that jeopardize the fair administration of justice.”
And of course, it’s never the crime, but the cover-up.
Last week a defense attorney said that the DA’s office was warned in August that Hong had given untruthful analysis, but took no action until Monday when the case fell apart.
“There’s no way to say (Hong) dropped the bomb on you. You had ample opportunity to defuse this bomb,” Assistant Public Defender Chuck Hasse said. “Short of putting on sock puppets and acting it out for them, they were put on notice.”
Spitzer said in a statement Wednesday that Hasse never shared his contention that Hong “cooked the books.”
“The public defender never brought up any issue of Ms. Hong being unable to testify the same way she did in 2016,” he said. “His argument was that his DNA expert contradicted Ms. Hong’s analysis regarding a DNA wrist swab. That is very different than accusing a witness of having been untruthful on the stand.
“Any allegation that the public defender notified any prosecutor regarding Ms. Hong’s inability to testify consistent with her 2016 testimony is patently false. It is not unusual for experts to have differing opinions.”
Hasse said he had no idea whether Hong would stand by her testimony in the first trial. “I fully expected her to be dishonest again in her analysis,” he said. “I didn’t expect her to come clean at the last minute. … They’re completely wrong and way off base, I did put them on notice.”
The McDermott case goes back to 1988 when Janine Chandler was found strangled and murdered in Buena Park. The cause of death was ruled to be asphyxiation. In 1988, the lead detective believed that the main suspect was the victim’s father, however, there was not additional evidence and the case would eventually go cold.
The case was picked up in 2009, when Criminalist Mary Hong did DNA testing on the items fathered from the crime scene. That analysis found an unknown DNA profile from an anal swab taken from Chandler’s body.
McDermott was living in New Mexico at the time in 2010, was interviewed over the phone and eventually consented to a DNA swab.
In October 2012, detectives received word that the DNA sample was a confirmed match with the DNA recovered from the victim. There was also a match to the defendant’s DNA to a swab taken from the right wrist of the victim.
He was arrested and charged with the rape and murder of Janine (even though the 1988 examination suggested no evidence of rape).
During McDermott’s first trial in July 2016, Hong testified and linked McDermott’s DNA to the wrist swab. On cross-examination, Hong initially did not recall that she had changed her determination of the wrist DNA, “She then acknowledged that she did not change them, but reinterpreted them because there was an updated procedure.” She was not questioned as to what that was.
While Hong explained that she had “reinterpreted the data,” Hasse believes that she actually cooked the books.
The Orange County Register further reported that as the DA reviewed Hong in this case, red flags have appeared in earlier Hong analyses in at least two other murder cases, both cases from the 1980s that were supposedly solved in the 2000s.
One of those was Lynn Dean Johnson, who was sentenced to LWOP for a murder that was committed in 1985 and for which he was convicted in 2008.
In a motion from Scott Sanders in 2020, he notes, “In 2017, Defendant detailed a series of extraordinary events leading to the discovery that the key forensic expert in his case, former Orange County Crime Lab criminalist Mary Hong, flip-flopped on the critical issue in his 2008 trial, providing irreconcilably inconsistent testimony about her ability to estimate the timing of semen deposited in a victim or found at a crime scene, henceforth referred to as ‘TSD.'”
In 1985, a criminalist Daniel Gammie had written a report where he concluded that testing indicated that semen collected was “not deposited at or near the time of death.”
But Hong and Gammie in 2008, during the guilt phase of the trial, repudiated the earlier opinion, “claiming that such findings were no longer considered scientifically valid—clearing the way for Johnson’s conviction.”
Writes Sanders, “Unbeknownst to the Johnson team, one year later Hong testified in a case heard in the very same courtroom, arising from another cold-hit homicide, committed in the same city, also occurring in 1985, and in which Gammie also concluded that the collected semen was “not deposited at or near the time of death.””
Sanders notes, in Wendell Lemond’s trial, “Hong’s testimony supported Gammie’s 1985 opinion (who was not a witness this time around), and she embraced the same science she and Gammie repudiated as invalid just one year earlier. Her opinion exculpated a third party, who may have otherwise been responsible, clearing the way for Lemond’s conviction”
Both cases ended up being appealed based on allegations that Hong and others also altered testimony to benefit the prosecution.
Scott Sanders told the Vanguard, “This is a long-standing problem with Hong and the Crime Lab. Hong’s flip flop on the issue of timing when semen was deposited in the cases of People v. Johnson and People v. Lemond, should have been an enormous wake-up call that a win at all costs perspective had infected Hong at the Crime Lab.”
What was uncovered—as was the case in several of the other scandals that Sanders have discovered, occurred through “rather extraordinary luck.”
He said, “I was contacted by the son of Lemond during the informant scandal who had questions about the prosecutor on his father’s case. When this was brought it to light the Crime Lab should have taken immediate action to look back at cases. He and his lab had no interest.”
He believes at the time this should have prompted a revaluation, but it did not.
“So now you have Hong with problems in two key forensic areas now—DNA and timing when semen has been deposited—and nothing done,” Sanders said. “It is critical that all of the cases that Hong participated in be reviewed by the OCDA or another body—and this has to be done in a way where the defendants and the public are given logical reasons to believe the process is completely fair.”
These findings continue to cast doubt on the techniques by which even DNA evidence is interpreted and the independence of the crime labs which function as a wing of law enforcement.
Moreover, Spitzer should have been more proactive here, as many have charged.
“Todd Spitzer should have proactively reviewed every case touched by Mary Hong long ago,” Hardin said.
“Orange County residents are collectively harmed by prosecutions based on unreliable evidence,” said Jennifer Rojas, senior policy advocate and organizer at the ACLU Foundation of Southern California. “These new allegations further highlight the need for increased transparency and an OC Crime Lab that is accountable to the public and not to the will of the Sheriff-Coroner’s or District Attorney’s Office.”