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Blood Spatter on Petitioners Victorias Secret Nightshirt:
Tom Bevel testified that blood spatter on the back of the Victorias Secret nightshirt that Petitioner wore on the morning of June 6, 1996 was consistent with cast off stains that would have been deposited when she brought the knife overhead in a stabbing motion:
Taking a knife that was the same diameter of the knife in question, I just simply, in this case I went down to my knee after placing a clean T-shirt on my body, put blood on the knife, on both sides, again, held it up and allowed it to just simply stop its dripping . . . . And then just simply did a motion such at this, I think on the first time I did it with two swings, if you would, without adding any additional blood, to see if in fact we get the blood that would be on the back that would be consistent in size, direction, location as the blood in question on the T-shirt [worn by Petitioner on the night of the attack].
C.R.R. Vol. 39, p. 37:10-38:1. He explained the significance of his findings to the jury as:
A. I was able, multiple times, to get bloodstains that were the same size, location, with the long axis up and down in that area and on other areas of the back of the [test] shirt.
C.R.R. Vol. 39, p. 38:3-6.
. . . .
[what is the explanation for the blood stains on the back of the nightshirt,] the most consistent way it could happen is when the stabbing motion comes up and the knife is over the shoulder . . . . That tells you that she was stabbing, and Devons blood winds up on her back. Its not going to wind up there if she is laying on the couch as a man wrestles at her neck.
C.R.R. Vol. 47, pp. 37:25-38.23, Vol. 47, pp. 16-24, Vol. 46 pp. 10-16.
As the State pointed out to the jury, defense counsel presented no scientific evidence to rebut the physical indications of a staged crime scene:
You know, here is the bottom line on Tom Bevel. You know out there at SWIFS there is another expert, Terry Labor. He is the DNA blood spatter expert who went out there on behalf of the defendant also, along with Bart Epstein. And if they want to quarrel with Tom Bevel and tell you that he is wrong, and that he is a witch doctor of some sort, where is Terry Labor then? Where is their blood spatter expert? Dont you know that if he had any criticism of the opinions rendered by Tom Bevel, that just like Bart Epstein, you would see them right up here, and he would be detailing for you what those criticisms are. But he is not here either, is he? And for a very good reason.
C.R.R. Vol. 46, pp. 151:17-152:4, 153:3-154:4. In fact, in October 1996 defense counsel was aware of contrary evidence. But the jury never heard that evidence either.
Credible Alternative Explanations for the Physical Evidence at the Crime Scene
The jury never heard from forensic experts Terry Laber and Barton Epstein, who were retained by Petitioners appointed counsel both of whom were identified by name in the States closing arguments as witnesses the defense never called to rebut Linch and Bevels testimony. Laber and Epstein had reached conclusions contrary to the States experts
before trial that could have been presented to the jury in Petitioners defense. Substitute defense counsel, who was conflicted because of an agreement not to implicate Darin Routier (
see Routier Aff. ¶ 7) , decided not to use the exculpatory evidence or to conduct further scientific tests
at a time when he was not familiar with the facts of the case. At the time they were instructed to stop working on the case, Laber and Epstein had conducted a number of scientific tests on the physical evidence about which Linch and Bevel had testified at trial and had recommended additional testing on other physical evidence. Laber and Epsteins conclusions in October 1996 were that the physical evidence did not suggest a staged crime scene, which directly contradicted the testimony of Linch and Bevel.
See generally Terry L. Laber Affidavit (Laber Aff.).
Blood Spatter on Victorias Secret Nightshirt:
Laber and Epstein concluded that Petitioners nightshirt indicated only minimal areas of blood spatter and that the critical areas of spatter were never subjected to genetic testing. Bevel explained to the jury that one explanation for the absence of blood spatter was that Damons and Devons blood was covered by direct hits of Petitioners blood from her self-inflicted wounds. In Labers expert opinion, that interpretation requires an extremely unlikely sequence of events. Laber and Epstein recommended that the critical areas of blood staining be tested
in October 1996.
See Laber Aff. ¶ 6. Conflicted defense counsel, however, ignored that advice, and the jury never heard evidence from such testing.
