On April 1, 2015, a Bronx jury returned a full acquittal finding Dale Robertson NOT GUILTY of Murder in the Second Degree, Manslaughter in the First Degree and Manslaughter in the Second Degree.
On paper, it looked like Dale Robertson had no shot. The prosecution would offer evidence that Mr. Robertson’s DNA was found in the anus of a dead girl. Further, the deceased was found naked in the park, stuffed in a garbage bag that also had my client’s DNA on it. Further, if that were not enough of a challenge, according to the police, Mr. Robertson broke down crying confessing to the murder to the police. However, as I have learned over the last 20 years, these cases are not won and lost on paper and as is often the case, the prosecution’s case was built with a house of cards with no foundation in the middle for support.
The facts of the case are as follows:
On November 15, 2006, the deceased was found naked and bound with duct tape inside of a garbage bag at Rosewood Park located adjacent to the Bronx River Parkway in the Bronx 47th Precinct. Underneath the garbage bag which contained the deceased was a second garbage bag which was assumedly used to carry the deceased body. Crime Scene Detectives photographed the scene to include the second garbage bag and vouchered the second bag and requested that the bag be tested for latent fingerprint analysis and DNA analysis. Herein, came the first big break in the case. Inexplicably, the second garbage bag which was found under the bag which contained the deceased body had never been tested for latent fingerprint analysis and DNA analysis. At trial, the police or the NYC Office of the Chief Medical Examiners Forensic Biology DNA unit had no explanation as to why in the nine years that have passed in this case, this critical piece of evidence had never been tested.
The Fingernail Scrapings
At autopsy, the Medical Examiner [ME] observed markings on the deceased’s neck consistent with fingernail markings. Fingernail scrapings were taken from under the deceased’s fingernails and submitted for DNA analysis. However, again inexplicably the NYC Forensic Biology DNA Analysis Unit never performed DNA analysis on this potentially key piece of evidence. The DNA analyst had no explanation at trial as to the fact that the fingernail scrapings are still in the evidence vault 9 years later with the evidence having never been tested.
The ME testified that the cause of death was manual strangulation and that it would take between 2-3 minutes of sustained pressure for death to occur. During the cross-examination of the ME (in which one skilled observer called it one of the best cross-examinations of a Medical Examiner that he had ever observed in his 40 year career), the Medical Examiner conceded that this case involved the most amount of hemorrhaging that she had ever observed in any strangulation death. The ME refused to concede on cross-exam that the extreme amount of hemorrhaging was in fact consistent with blunt force trauma from an inanimate object such as being pistol whipped (this becomes incredibly relevant in this case- see below). The ME conceded that X-Rays of the vertebrae would not necessarily reveal fractures and they did not. Additionally, the ME conceded the importance of examining the spinal cord in such a case to rule out blunt force trauma to the area. The autopsy report indicates that the ME took out the heart, lungs, kidneys and various other body parts to examine them. However, the autopsy report was dead silent on whether the ME ever removed the spinal cord to examine it.
Further, the defense called a forensic pathologist, the former Chief Medical Examiner of Rockland County to testify as to the cause of death. The defense expert, a career Medical Examiner that had been involved in more than ten thousand autopsies over the last 40 years and has published scholarly articles on strangulation deaths from the Medical Examiner’s perspective. The defense expert testified that in his forty years he had never observed the amount of hemorrhaging that was present in this case and that he believed that the cause of this amount of hemorrhaging and the cause of death was much more likely to have resulted from blunt force trauma rather than strangulation. This was extremely critical in the case as the jury learned that the police failed to properly investigate claims that an ex-lover (not Dale Robertson) of the deceased, confessed to a witness that was interviewed by the police that he pistol-whipped the victim in the back of her head when she tried to end their relationship. The police testified they discounted this information because they believed the cause of death was strangulation and not blunt force trauma.
Dale Robertson’s DNA Was On The Garbage Bag – Or Was It?
The garbage bag and the duct tape were sent to the NYPD Latent Prints Analysis Section. After the duct tape and the garbage bag was tested for latent fingerprints (no prints of value found), the NYPD criminalist swabbed both items for potential DNA. The NYPD criminalist did not photograph the garbage bag and merely indicated that he swabbed a knot on the bag for DNA. The bag in question appeared to have multiple knots. During deliberations the jury requested to see the bag which was not introduced in evidence in the case.
DNA analysis revealed the following:
DNA on the anal swab collected from the sexual assault kit at autopsy revealed the presence of semen and that the DNA was a mixture with the primary contributor being the deceased and the DNA profile of DNA Donor A. Attorney Smith brought out the fact that semen could potentially exist inside of the body of the deceased for up to 72-96 hours. The profile of DNA Donor A was uploaded into the NYS DNA databank at which time a cold case hit revealed that DNA Donor A matched Dale Robertson. It was not lost on the jury that the DNA databank hit came from previous criminal convictions. As such, Attorney Smith thought it prudent to bring out the fact through the police that the extent of his criminal records was a 1999 drug case in upstate New York and the only criminal justice contacts the defendant had since were for parking his bicycle illegally on the sidewalk and for urinating in public. This became relevant as the police were investigating multiple suspects in the case (prior lovers of the deceased), that had murder arrests, violent felony convictions and were registered sex offenders. After Mr. Robertson was arrested a buccal swab sample was taken and compared to DNA Donor A and once again there was a positive match. The DNA analyst testified at trial that the statistical probability of finding another person with this exact DNA match would be one in one trillion. To put it in perspective, the analyst further opined that there were approximately 6 billion people on the planet and it would take 150 Planet Earths to find another person to match this profile. This of course seems very damning but this is exactly where Attorney Smith sought to turn the DNA evidence into his client’s favor.
The two swabs from the plastic bag (Swab 1 A and 1B) were examined using high sensitivity low copy number DNA testing at which time the analyst testified for one sample that the profile of DNA Donor A “could not be excluded as a contributor” and that on the other sample DNA Donor A “could be included as a contributor”. I highlighted for the jury that with respect to the profile of DNA Donor A that this only reflected the anal swab sample and that no statistics were being offered for the DNA evidence on the plastic bag and at that the most the analyst could opine was that Dale Robertson could not be excluded on one sample and could be included on the other sample. Further, Attorney Smith on cross-examination was able to establish with the DNA analyst that the only laboratory in the United States which uses LCN testing for criminal prosecutions was the NYC DNA laboratory and that even the FBI did not use LCN. On cross-examination, Attorney Smith established issues in the NYC DNA laboratory which reported an 8-11 percent contamination rate in its LCN testing. Further, it was established on cross-examination and through the testimony of the defense’s own DNA expert that critics of LCN testing point to the fact that, it may not be possible to determine the source of an LCN sample in other words whether the DNA sample is semen, blood, saliva or touch DNA. This became one of the central issues in the case. The NYC DNA analyst opined that the most likely source of the DNA sample on the garbage bag attributable to Dale Robertson was Touch DNA and was not semen. However, the analyst on cross-examination was forced to concede that the actual item of evidence needed to be specifically tested for the presence of semen and that it had not been done in this case. Further, the bench notes of the NYC OCME DNA laboratory, which were admitted in evidence, revealed a communication between a DNA lab supervisor and the Bronx District Attorney’s Office that it could not be determined whether semen from the anus could have leaked onto the garbage bag.
The Garbage Bag: Standard PCR-Type DNA Testing
As mentioned above, there were two swabs taken of the garbage bag and submitted for DNA analysis. These swabs were marked as Swab 1A and Swab 1B. Swab 1A was cut into two pieces and as mentioned above one cutting from Swab 1A was examined using LCN testing at which time it was determined that Dale Robertson “could not be excluded” as a contributor to the mixture. However, the other cut from Swab 1A was examined using Standard PCR DNA type testing. Unlike the more controversial LCN testing, Standard PCR type testing is used universally by DNA labs around the world. The results of Swab 1A were exculpatory as Dale Robertson was excluded from the sample.
The Duct Tape: Standard PCR-Type DNA Testing
The deceased was discovered with her feet bound in duct tape. The duct tape was examined using the Standard DNA type testing. A mixture of DNA was examined on the duct tape swab in which the victim and at least one other individual was determined to be part of the mixture. Dale Robertson was excluded from the duct tape sample.
A False Confession Expert
Attorney Smith served notice that the defense intended to call Dr. Richard Ofshe, an expert in the field of the coercive interrogation techniques of law enforcement personnel which may lead to the phenomena of a false confession. The Court denied the defense request without even ordering a Frye hearing to allow the false confession expert to testify in defense of Mr. Robertson. A significant record was made by Attorney Smith and would have been an appellate claim of error had Mr. Robertson been convicted.
The False Confession
The police learned of the DNA Databank hit on Dale Robertson in June 2009. The Detective determined that Dale Robertson resided in the Bronx and that he had a warrant for failing to appear in court on two summons offenses, one being for urinating in public and the other for parking his bike on the sidewalk. At trial, the police testified that 5 Detectives from the Violent Felony Squad dressed in bullet-proof vests went to Mr. Robertson’s home where they apprehended him and transported him to the 47th Precinct.
At the precinct, the homicide detective, DET NC, told Mr. Robertson that he needed to read him his Miranda rights because of his open warrants. The Detective then interrogated Mr. Robertson for a period of 3 ½ hours. The interrogation was not recorded. On cross-examination, Attorney Smith established with the detective that it is now the policy of the NYPD to video record all homicide interrogations. The Detective conceded on cross-examination that in today’s society where many false confessions have come to light in recent year, it is important to have an accurate record of an interrogation. DET NC testified that in 2009 the police were not required to record interrogations and the Detective had no access to recording equipment such as an iPhone or a tape recorder. But this was not entirely true. In 2009, there was a policy in place in the Bronx (as well as many other counties) that after the police complete the interrogation of a suspect, they are required to notify the Bronx District Attorney’s Office that a suspect has made a statement. Once this occurs, the Bronx DA will go to the precinct with video recording equipment to take a statement from a suspect. Given this, Attorney Smith argued in closing statements that the police do in fact have access to recording equipment with the Bronx DA. But the police decide when it is time to video record the interrogation. The police attempt to get a “head start,” to “grease the skids” in order to get the statement warmed up the way they want it to happen and when the police believe they have a finished product they then elect to record it. Attorney Smith in his summation called this Plan A by the Detectives in our case. But when Plan A does not work, the police implement Plan B which is what happened in Dale Robertson’s case.
Here, the detective interrogated Mr. Robertson for 3 ½ hours (perhaps 6 hours- see below). In 3 ½ hours, DET NC wrote a 1 page statement memorializing what Mr. Robertson allegedly stated. According to the statement written by the Detective, Dale Robertson admitted smoking marijuana with the victim on multiple occasions and that he along with his friends had sexual intercourse with the victim. Further, according to the statement Mr. Robertson admitted to having anal sex with the deceased and that the last time he saw her alive she walked out of his house with his friend. According to the statement, Mr. Robertson stated that he had no knowledge of how the victim was killed but if his fingerprints were on the garbage bag that the girl was found in then Dale Robertson’s friend would have taken the garbage bag from his home. The detective testified that he read the statement back to Mr. Robertson and had him sign it. However, on cross examination, Attorney Smith blistered the Detective with his testimony that he waited until after the statement was signed, to first confront Mr. Robertson with the strongest pieces of evidence in the case: Mr. Robertson’s semen DNA inside the anus of the victim and his DNA on the garbage bag. But according to the Detective despite having these key pieces of evidence against Dale Robertson, he waited 3 ½ hours until the written statement was completed and signed to confront him with this “smoking gun evidence”.
Attorney Smith questioned Detective NC on Mr. Robertson’s alleged admission that he had anal intercourse with the victim. DET NC maintained that this admission was not in response to DET NC confronting Mr. Robertson’ with the fact that his DNA semen was inside of the anus of the deceased. Attorney Smith cross-examined DET NC on this same issue with Mr. Robertson’s alleged admission that his fingerprints were on the garbage bag. DET NC testified he never suggested this to Mr. Robertson. In fact, there were no fingerprints on the garbage bag but DET NC maintained that Mr. Robertson volunteered this information on his own. DET NC conceded that he is allowed to lie, deceive and trick a suspect during an interrogation but that he did not do so here. Further, according to DET NC, Mr. Robertson indicated that the last time he saw the deceased she walked out of his home with his friend. The jurors learned during cross-examination that Dale Robertson’s friend was a registered sex offender and has pending murder charges on an unrelated case in the Bronx. Further, the jurors learned that the police never requested that Dale Robertson’s friend DNA be compared to any of the evidence in this case.
DET NC testified it was not until Mr. Robertson signed the statement that he confronted Mr. Robertson with the DNA evidence in the case. According to DET NC, Dale Robertson immediately requested to speak with a lawyer. DET NC indicated that at this point he honored Mr. Robertson’s rights to counsel and notified the Bronx District Attorney’s Office that Mr. Robertson requested a counsel and that a video statement need not be conducted. DET NC further testified on cross-examination that neither he nor the Bronx DA’s office could speak with Mr. Robertson without counsel being present but that nothing precluded Mr. Robertson from making spontaneous utterances which were not in response to police questioning. And as Plan B established this was exactly what happened in this case according to the police.
The Spontaneous Statement
The Homicide detective further testified that all questioning of Mr. Robertson concluded at 9:35pm at which time the Detective escorted Mr. Robertson from the interview room to a holding cell where he was subsequently transported by Detective DR to be processed for arrest. On direct examination, DET DR confirmed that he observed Mr. Robertson being escorted from the interview room to the holding cell before 10:00 pm. However, on cross-examination Attorney Smith confronted Detective DR with his pre-trial hearing testimony in which he indicated under oath that he observed Mr. Robertson exit the interrogation room after midnight. Attorney Smith asked the Detective if he recalls testifying at a prior proceeding and if he swore to tell the truth at this prior proceeding and did in fact tell the truth. DET DR incredulously responded by rotating his hands in a circle multiple times and pointed at Attorney Smith and stated “I always tell the truth.” This act of unprofessional conduct was not lost on the jury as reflected in their verdict.
DET DR testified that he transported Mr. Robertson in a police cruiser to Bronx Central Booking for arrest processing. DET DR testified that while in the police vehicle Mr. Robertson began to cry and stated that he had rough sex with the deceased and that her lungs collapsed and she died. DET DR further testified that Mr. Robertson indicated he panicked and placed the victim’s body in a garbage bag and left it in the park. Further, according to DET DR, Mr. Robertson indicated that he had gone to a priest to give confession and that he is not able to forgive himself for his sins.
According to the detective the spontaneous statements by Mr. Robertson were not the product of any questioning or interrogation by the police. On cross-examination, Attorney Smith brought out the fact that DET DR was a seasoned interrogator. Attorney Smith inquired of the Detective whether he had ever used the interrogation technique of GOOD COP/ BAD COP in which at least one police interrogator (THE BAD COP) engages in an interrogation of a suspect that can be described as hostile and accusatory. After being interrogated for a period of time by the BAD COP, the questioning is then turned over to a police officer that treats the suspect with dignity respect and compassion in an attempt to befriend the suspect. On the earlier cross-examination of the homicide detective, DET NC, he admitted to using this interrogation technique in the past but denied using it on Mr. Robertson. He further admitted that a detective acting as the GOOD COP could certainly use religion and prayer as a technique to get a suspect to confess to a crime. However, Detective DR, unlike Detective NC, indicated that GOOD COP/BAD COP is not reality and that it is just made up on TV. However, Attorney Smith brought out the fact that on the car ride over to Central Booking in which Mr. Robertson made this alleged spontaneous confession, DET DR was forced to admit to the jury that he told Mr. Robertson that “God had given us our only son, Jesus Christ. And that we killed Jesus. But God forgave us for our sins. So who are you (Mr. Robertson) not to forgive yourself.” However, when Attorney Smith asked DET DR if he was preaching to Mr. Robertson the witness said absolutely not and reiterated that he did not use the GOOD COP/BAD COP technique. These preaching’s were noticeably absent in the DD5 prepared by the detective in memorializing the statement.
In closing arguments, Attorney Smith highlighted the fact that Dale Robertson’s semen was found inside of the deceased’s body was merely proof that he had sex with her within 72-96 hours of her death and certainly does not prove that he is a murderer. Further, there was significant evidence presented that the Mr. Robertson’s DNA leaked out of the body of the deceased and onto the garbage bag this explaining the presence of his DNA. Next, Dale Robertson was 100 percent excluded from the duct tape in which the deceased was bound and there is at least two or more contributors to the DNA that was found. Further, the DNA lab failed to ever test several critical pieces of evidence in this case to include a second garbage bag discovered underneath the bag which contained the victim’s body and fingernail scrapings taken at autopsy. Further, Attorney Smith highlighted that the police did a sloppy investigation of other suspects, one of which actually confessed to the murder of the victim and another suspect in which the police failed to compare the DNA of a known registered sex offender that Mr. Robertson claimed was the last person he saw with the deceased. Attorney Smith successfully conveyed to the jury that the alleged confession by Mr. Robertson was the product of fabrication by the police.
All of the above factors added up to one conclusion: Reasonable Doubt. The jury agreed in finding Dale Robertson NOT GUILTY of Murder in the Second Degree, Manslaughter in the First Degree and Manslaughter in the Second Degree.
Attorney Smith has worked with Dr. Ofshe on several other cases since 2007. While mobilized to serve his country with the United States Army from 2006-2008, Attorney Smith represented a soldier that falsely confessed to breaking the leg of his infant step-son at Fort Drum, New York. As here, Attorney Smith sought to call Dr. Richard Ofshe but the judge precluded this testimony without even conducting a Daubert hearing (In a courts-martial, the military follows the Federal Rules of Evidence almost verbatim). Attorney Smith argued on appeal that the trial judge committed reversible error precluding the testimony of the false confession expert. The Army appellate court agreed in setting aside the conviction. United States v. McGinnis, 2010 WL 3931494 (Army Ct.Crim.App.2010). Attorney Smith has taught several CLE’s on litigating the false confession defense to multiple criminal defense organizations. https://www.ny-criminal-defense-lawyer.com//false-confession/