The Justice Project - Profile of Injustice
Brandon Moon
Erroneous forensic testimony by a state crime lab
analyst and the botched handling of exculpatory post-conviction DNA results
kept Brandon Moon in prison for seventeen years for a rape he did not
commit. Better training, higher standards for analysts, and improved quality
control could have prevented this grave injustice from ever occurring.
One morning in April 1987, an armed man broke into the home of an El Paso
woman and robbed and raped her. After the assailant fled, the woman put on a
robe and drove to a local store to call police.
The next day the victim went to the police station to create a composite
sketch of her attacker. Police created a photo lineup to show the woman,
which included Brandon Moon, a twenty-five-year-old Air Force veteran and
student at the University of Texas at El Paso. Police had Moon’s photo
because he had been suspected of involvement in a previous burglary, though
charges were dropped.
Moon was arrested after the victim tentatively picked him out from a photo
spread. She later firmly identified Moon in a live lineup, though her
increased ability to recognize him was questionable, given that Moon was the
only person present in both the photographic and live lineups. Based on the
identification, police contacted three other women who had been victims of
similar attacks in the same area, all of whom identified Moon as their
attacker.
At trial all four women again fingered Moon as their attacker. The
prosecutor called Glen David Adams, a serologist at the Texas Department of
Public Safety (DPS) Crime Lab in Lubbock, to the stand to argue that
physical evidence corroborated the eyewitnesses. Adams testified that he
examined the semen stains from the crime scene, and that his analysis
excluded the victim’s husband and son, but indicated Moon could have been
the source of the semen. He explained that the semen was deposited by a
nonsecretor, one whose blood type antigens are not found in other body
fluids, and that Moon was among only 15 percent of the population that was a
non-secretor. (Jurors later said that Adams’ testimony figured prominently
in their decision to convict.)
Moon took the stand in his own defense. He testified that he was on the
campus of his college at the time of the crime. His girlfriend testified
that she had phoned Moon less than an hour before the crime and had met him
just 15 minutes after the crime occurred. Since Moon had no car, it would
have been impossible for him to commit the crime in that window of time.
Despite the alibi testimony, Moon was convicted of three counts of
aggravated sexual assault in January 1988 and sentenced to seventy-five
years in prison.
Despite his conviction, Moon continued to proclaim his innocence and began
filing motions to have the evidence re-tested. In 1989, he won access to DNA
testing technology that was still in its infancy. While the results of the
tests seemed to exclude Moon as the source of some crime scene evidence, the
results were not yet exculpatory because the victim’s reference sample was
not tested. Moon continued to petition for further testing, even without a
lawyer’s help.
In 1996, Assistant El Paso District Attorney John Davis was preparing a
response to Moon’s latest appeal and requested that the DPS crime lab review
the evidence. In a December 1996 internal memo, DPS scientist Donna Stanley
raised serious questions about the original DPS testing and testimony by
Adams. Stanley wrote in the memo “It is imperative to obtain a blood sample
from Brandon Moon and the victim’s husband in order to resolve this case.”
Stanley proceeded with DNA testing that proved that the comforter and
bathrobe stains came from two different men. She sent a report to Davis in
January 1997 saying reference samples from Moon and the victim were too old
and degraded to test, even though she apparently never tried to extract a
profile. Stanley claimed that additional reference samples from Moon, the
victim, and her ex-husband were needed to determine whether Moon could be
excluded as the perpetrator by the crime scene evidence. She left her DPS
job four days after sending her report to Davis. By this time the judge
handling Moon’s appeal (to which Davis had been preparing an answer) had
denied the appeal.
No one in the DPS lab or the DA’s office ever followed up on the request for
reference samples. Lab officials said they could only act at the direction
of the DA’s office. A DPS spokesperson offered the following explanation to
the El Paso Times in 2005: “No additional samples were ever received, so
there was no further work to complete; therefore no other personnel were
assigned to the case.” Assistant El Paso DA John Davis told the paper that
it “wasn’t my role as the prosecutor to go out and manufacture or produce
exculpatory evidence.” In short, both the lab and the prosecutor ignored
Stanley’s red flags.
Based on Texas’ then-new post-conviction DNA testing statute, Moon won
access to further testing in 2002. This testing finally excluded Moon as the
contributor of any semen from the crime scene blanket or bathrobe. But the
results were still not enough to free Moon. If the stains could be traced to
either the victim’s husband or teenage son (it was the son’s bathrobe),
prosecutors could argue that the results were not exculpatory, because the
perpetrator may not have left DNA behind.
Moon’s new lawyers with the El Paso Public Defender’s Office tracked down
the victim’s now ex-husband, but could not find her son. The ex-husband
agreed to offer a DNA sample, but, believing it would be useless unless they
could also get a reference sample from the son, the lawyers waited to
collect it while they continued their search.
The Innocence Project subsequently took the case. In November 2004 the
victim’s husband gave a reference sample that matched the comforter stain
but not the bathrobe. Although the victim’s son refused to provide a
reference sample, scientists with Orchid Cellmark were able to perform
“reverse paternity” DNA testing, which used the victim’s DNA to determine
whether her biological offspring could have contributed the material in the
stain in question. Testing proved that the son could not have been the
source of the stain, leaving only the rapist.
DNA testing not only demonstrated Moon’s innocence; it also exposed grave
flaws in the original work and trial testimony of Glen D. Adams, the state
crime lab’s serologist. Adams testified that the victim’s husband was
definitely excluded as a source of the bedding stain, yet DNA proved that
the bedding stain originated from the husband. If Adams had conducted a
proper analysis, he would have realized that the victim’s husband and son
were both non-secretors and, therefore, a conclusion that the donor of the
material was a non-secretor would not be useful. In fact, the original
testing could not have included or excluded any suspect.
An investigative reporter with the El Paso Times later documented that Davis
was brand new at his job when assigned the Moon case, had received a D in
his college serology course, was struggling through a significant work
backlog at the time, and that a supervisor indicated in a review that he had
an insufficient understanding of the basics of blood analysis.
In December 2004, after the multiple tests and analyses were complete,
Brandon Moon was finally freed from prison with the support of prosecutors
after seventeen years of wrongful incarceration. El Paso District Attorney
Jamie Esparza issued the following statement: “I would like to convey my
apologies to Mr. Moon on behalf of the state of Texas and acknowledge that
an apology at this time is inadequate…”