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[This edited version of the report has been prepared by Dr Robert N Moles]

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On 4 Nov 2002 Caroline Overington reported for The Age in relation to Jim Bromgard in the USA. She said he was convicted mainly on scientific evidence for the rape of an 8 year old girl. He was sent to jail for 15 years. It turns out that the evidence which convicted him was not reliable. She said there are thousands more such cases.

Overington reports Bromgard as saying, "I went into court thinking, they can't find me guilty because I didn't do it. But they did find me guilty. So maybe I was in shock. But I kind of accepted it. I thought, this is the hand I've been dealt." Now, at the age of 33, his conviction has been overturned, and he has been released.

She said he bears no malice towards the system that wrongfully convicted him, nor towards the forensic scientist who gave the unreliable testimony that led to his conviction. "I'm just happy that things worked out right in the end."

Overington continued:
By the time he was 15 he was in a boy's home and at 17 he was in jail. "So I was in prison, and they came to me and said, do you want to do a line-up? And I said sure, because they always want people for line-ups, but the girl picked me out."

The girl had been raped by an intruder who came in through the window. Police had no suspects, but one of the detectives thought the girl's description of the rapist matched Bromgard. The detective checked the prison records, and found that he had been out of jail - albeit briefly - when the girl was raped, and had been living in the same street.

"So once she picked me out of the line-up, they said, can you give us some hair samples, so I gave them some hair samples, and then they came and arrested me and said: it's for child rape."

Bromgard said he was not too worried, because, he knew he didn’t do it. He was broke, so the court gave him a lawyer.

"We all used to call (him) Jailhouse John because he never got anybody off. The first day I saw him, he said, plead guilty, I'll get you a deal. But I said, I'm not going to plead guilty, I didn't do it. So I guess he gave up on me."

The lawyer was late to court; he arrived with a blank pad, gave no opening statement, asked no questions, presented no witnesses, and cross-examined none of the prosecution's testimony. The victim, who had picked Bromgard out of the line-up, was not sure that she had the right man. A videotape shows her saying that she is "60, 65 per cent sure". The prosecutor asked her to "quit using percentages. How would you describe how sure you are?" "I'm not too sure," she replied.

In 1987 the technology was not available to DNA test semen taken from the girl's underwear, but detectives found head and pubic hair on the sheets. The prosecution called the chief hair expert of the Crime Laboratory to the stand. He testified that the hair found at the rape scene was "microscopically indistinguishable" from Bromgard's hair.

He said there was only a "one-in-100 chance" that the head hair was not Bromgard's, and a "one-in-100 chance" that the pubic hair was not Bromgard's. And then, in testimony that makes modern experts gasp, he said, "so, if you find both head and pubic hair, you multiply the odds together, and you get one in 10,000."
[This is similar to the approach taken by Professor Sir Roy Meadows in the UK]

Despite the fact the calculations were incorrect, there was no database of human hair types for comparison. Regularly bashed because he was a convicted child rapist, Bromgard fought back and regularly found himself in solitary confinement.

"But I didn't mind. I wanted to be on my own. I needed to blow out all my steam," he says.

Bromgard refused to accept his conviction and set about proving his innocence. He pinned his hopes on an appeal and, in 1989, he wrote to the Department of Corrections to ask when it would be heard, but they wrote back, saying: "You've had your appeal. Your lawyer didn't show up."

"Old Jailhouse John," Bromgard says. "He was probably in the pub. But at least it meant that I could apply for a new appeal, on the grounds of ineffective counsel."

Through that process, Bromgard discovered The Innocence Project, which two New York lawyers set up in 1992 to run appeals for inmates whose cases hinge on scientific evidence. The group comprises enthusiastic law students from the Benjamin Cardozo School of Law in New York. Unfortunately there was a six-year waiting list and Bromgard put the whole thing out of his mind.

A few years later a student from the project rang Bromgard and said he was taking up his case, but needed $6000 to do the DNA testing.

"I said, I haven't got $6000. I've been in prison since I was 18. I make $1.25 a day, cleaning the halls. So I thought, that's that."

But the staff at The Innocence Project decided to take on the case free of charge. The semen samples were sent for DNA testing and a copy of the scientific testimony was sent to several hair experts in the United States.

"I was shocked when I saw the testimony," said Professor Walter Rowe, one of the world's leading forensic experts. "I'd never seen anything like it. He just plucked the numbers out of the air."

The other experts agreed, telling the court in a peer review paper that: "[The scientific expert] made up those statistics. It would appear that he deliberately ignored the scientifically accepted practices to help secure a conviction."

Then the results of the DNA tests came back: it was not Bromgard's semen on the victim's underpants. He was an innocent man.

The co-founder of The Innocence Project, Peter Neufeld, says it is not the first time that a man has been exonerated after [that scientific expert's] evidence was found to be flawed. In 1997, a judge in Silver Bow, Montana, overturned the conviction of Chester Bauer, who had been serving a 20-year sentence for aggravated assault and rape. The evidence the expert gave in that case was virtually identical to the evidence he gave in Bromgard's case.

"Our fear is, there are many more,"Neufeld says. "It's deeply troubling. [The expert] says he testified in hundreds of cases. How many times has he done this? We don't know."

Neufeld wants the state of Montana to conduct an audit of all cases where that expert gave evidence, but the Attorney-General has refused.

"There are flaws in the system, and governments don't want to do anything about it. I mean, Mr Bromgard's case is not rare or isolated. There are hundreds of people like him."

Over the past 10 years, The Innocence Project has worked to free 114 people from prison in the United States, using DNA evidence.

The law in Montana prevents him from taking a civil action for wrongful imprisonment. All he got when he walked out of prison was $US100 ($A180) "gatemoney", which he spent most of on his first, special, dinner with his girlfriend.

"I'm really hoping that somebody will give me a second chance and give me a job," Bromgard says. "I can learn quickly, and I work hard."

Source: The Melbourne Age 4 November 2002 – Caroline Overington - "Guilty until proved innocent – Jim Bromgard"

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