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…”