October 1, 2002 

DNA Will Let a Montana Man Put Prison Behind Him, but Questions Linger

By ADAM LIPTAK 

BILLINGS, Mont., Sept. 30 — A couple of weeks after Jimmy Ray Bromgard was sent to prison in 1987, another inmate broke his jaw in a fight. Mr. Bromgard, then 18, was starting a 40-year sentence for the rape of an 8-year-old girl here."Crimes of that sort are not well received inside," said Lt. Timothy Neiter, one of his jailers. "His hard time was hard.

"Mr. Bromgard is a lanky man with thinning hair now. He has lively eyes, a relaxed manner, a quick sense of humor and more native optimism than most. 

"I got beat up quite a bit," he said. "But I learned to fight. I guess that's a good thing."  He did not sound too sure about that last point. 

DNA tests have cleared him, and he is expected to walk out of the Yellowstone County Courthouse here on Tuesday morning a free man. He is 33 and has spent almost half of his life in prison. 

Mr. Bromgard's lawyers have assembled a peer review committee of forensic scientists, which has issued a report asking for an audit of the hundreds of cases in which the manager of the state's crime laboratory at the time testified. The manager, Arnold Melnikoff, played a central role in Mr. Bromgard's case. 

Mike McGrath, Montana's attorney general, was skeptical about the request for an audit, which he said he had not yet received. The county attorney here, Dennis Paxinos, said that he would review the cases in which Mr. Melnikoff's testimony was central to the conviction. 

"I would think you would want to go and check some of them out," Mr. Paxinos said, referring to earlier convictions.The rape victim's father said he has always harbored some doubts about the case. 

"When we went through the trial in 1987, there was no evidence in the case that would have convicted Jimmy," he said in an interview. "Then they came forward with the hair. 

"At the trial, the victim said she was "about 60 percent, 65 percent sure" that Mr. Bromgard was the man who raped her.David W. Hoefer, who was the prosecutor and deputy county attorney, tried to establish just what this meant. 

"And if we were to quit using percentages, would you say that you are, how would you describe how sure you are?" Mr. Hoefer asked. 

"I am not too sure," the little girl said.Mr. Melnikoff was more comfortable with numbers. He testified that head and pubic hairs found at the scene could not be distinguished from samples provided by Mr. Bromgard. The chances that two hair samples are microscopically indistinguishable, he said, are one in a hundred. Since head and pubic hairs are different, he went on, "it's a multiplying effect, it would be one chance in 10,000." 

Mr. Bromgard's lawyers say the testimony was improper."Melnikoff simply made up those statistics," they wrote in their letter to the attorney general. 

"It would appear that he deliberately ignored the scientifically accepted practices to help secure a conviction. 

"In an interview, Mr. Melnikoff acknowledged that "there has never been a thorough, proper study where they looked at a large number of samples" that would allow quantification of the kind he used. He said his testimony was based on his experience with many hundreds of hair samples. 

"I did my job," he said. "I didn't say it was him exclusively. Hair evidence is class evidence. It's not specific. It's possible by coincidence it could be similar to another person. 

"The questions raised about Mr. Melnikoff, who now works for the Washington State Police, are reminiscent of those about Joyce Gilchrist, an Oklahoma City Police Department chemist whose work in hundreds of cases is under review. 

Peter J. Neufeld, the co-director of the Innocence Project at Benjamin N. Cardozo School of Law in Manhattan and one of Mr. Bromgard's lawyers, said Mr. Melnikoff's work was in some ways more troubling."Joyce Gilchrist was just a serologist in a lab," Mr. Neufeld said. 

"This guy ran the whole lab. He set the tone for the lab."The hair evidence was not challenged by Mr. Bromgard's court-appointed lawyer at the trial." 

They called him Jailhouse John Adams," Mr. Bromgard said of his former lawyer.  "I don't think he ever got anybody off." 

Mr. Adams worked for the county for a monthly fee. According to Mr. Bromgard and his lawyers, Mr. Adams met with him once before trial, hired no investigators or scientific experts, filed no motions to suppress evidence, made no opening statement, failed to prepare Mr. Bromgard for his testimony and, after indicating he would appeal, did not. 

In an interview, Mr. Adams said he did not recall Mr. Bromgard's case and was no longer practicing. 

The American Civil Liberties Union has sued the State of Montana and several of its counties for failing to spend enough money to ensure that poor defendants are adequately represented. 

Mr. McGrath said that a lot has changed in the 15 years Mr. Bromgard has been in prison. Yellowstone County, for instance, has adopted and financed a public defender system. Other counties, some quite rural, have different needs, he said. 

Mr. Bromgard said he has only modest plans."I'd like to go swimming," he said. "I think I'd enjoy swimming."