DNA test sways prosecutors
Thu, Oct. 10, 2002
By Melody Mcdonald; Star-Telegram Staff Writer
FORT WORTH - Citing second-opinion DNA test results that conflict with those of the police crime lab, prosecutors this week abruptly abandoned plans to seek the death penalty for a Fort Worth man accused of killing a motorist during a carjacking.
Attorneys were two weeks into jury selection when prosecutors announced Monday that they were changing course in the case against Jamien Demon Nickerson, who is charged with gunning down Juan Lerma, 25, on Nov. 24, 2000, at a southeast Fort Worth carwash.
Nickerson, 24, is also a suspect in the unrelated kidnapping and suffocation of an 18-year-old mother two weeks after the carjacking.
After prosecutors filed the notice not to seek the death penalty, state District Judge Scott Wisch dismissed the entire jury pool. Defense attorney Greg Westfall, who is defending Nickerson with lawyer Joetta Keene, said he was thankful.
"I was walking on air. My client lives," Westfall said. "That is all that matters to me."
Officials said that there is no way of knowing whether the varying DNA test results will affect any past cases worked by the senior forensic scientist in question, Karla Carmichael, or the Fort Worth Police Department's crime lab.
The crime lab has recently been the focus of City Council discussions after the Star-Telegram reported that it was plagued with problems, including understaffing, a backlog of cases, high turnover and unsafe working conditions.
Currently, the lab is outsourcing DNA testing on new cases because Carmichael is on maternity leave and only one forensic scientist is actively working.
According to court documents, a wrinkle surfaced in the Nickerson trial after prosecutor Mike Parrish had DNA evidence tested by the police crime lab re-examined by the Tarrant County Medical Examiner's Office.
Parrish said he requested the reevaluation after Carmichael submitted an unsolicited and amended DNA report that strengthened the prosecution's case.
"It comes in, and it's better for me," Parrish said. "But I was kind of like, 'Something is not right here, let me check this out.' "
The subsequent report from the medical examiner's lab, he said, was unsettling. The results from it and the Police Department's crime lab were "like A to Z, night and day" different, Parrish said.
Sources familiar with the case said the police lab report revealed that a DNA profile lifted from Nickerson's jacket matched Lerma. Such a profile occurs in only one of every 29 million Southwest Hispanics, sources said the report stated.
In its report, the medical examiner's office concluded that, in essence, 30 of every 100 white, black or Hispanic people could have been the source of that DNA sample.
"What this means is that I have a case that does not have conclusive DNA, so we waived the death penalty, and we will try and get Nickerson a straight life sentence," Parrish said. "We don't take cases to trial for the death penalty when there is a guilt issue.
"When I lost my conclusive
DNA that I had thought was there ... the prudent thing to do was waive
the death penalty."
Reached at home Wednesday, Carmichael, who plans to return to work in mid-November, said she was surprised to hear that Parrish had dropped the death penalty because of her test results -- especially since he had never approached her about her work on the case.
"I'm not sure what the medical examiner's office did," Carmichael said. "My results are valid, and they stand and I stand by them.
"Mike Parrish has never spoken to me about this. He has access to my cellphone and my home number. If he wants to be informed, maybe he should talk to the person who did the testing instead of changing his death penalty case. I'm not on my deathbed. I'm at home with a newborn."
Carmichael said she gave Parrish the amended report because when she looked over the data in the first report, she decided to change a statistical calculation.
The revised calculation did not change the overall DNA test results, she said.
"I don't care if he asked for the report or not," she said. "I'm not going to let him have a report that is not valid."
Parrish said he met with the police crime lab director and other lab personnel, but they were unable to answer questions regarding Carmichael's test results.
Carmichael said that protocols and procedures differ from lab to lab and that results are often interpreted differently.
"It's like in one school system a 69 is an F and in another school system says a 69 is D," she said. "Whose results are right? Do you go with mine or with theirs?"
According to court documents, the Tarrant County district attorney's office received Carmichael's initial report on April 26, 2001. The tests implicated Nickerson, and prosecutors relied on that report, among other things, in their decision to seek the death penalty.
"It has always been our policy, before we seek the death penalty, to have a flat, absolutely lay down, guilt-or-innocence case -- there is no question about [a defendant's] guilt," Parrish said. "I used the original report of April 2001, and said, 'This is a lay-down case because of conclusive DNA.'
"I prepared over the past 18 months; I was ready to ready to rock and roll."
But on Aug. 8, Carmichael unexpectedly filed the amended report with Parrish's office.
By this time, jury selection for the trial was fast-approaching. Parrish asked Wisch for a two-week continuance so that he could have the evidence retested by the medical examiner's office.
The judge denied the request, and jury selection began as scheduled. Parrish, meanwhile, had the evidence retested.
On Friday Oct. 4, Parrish received the results and, on Monday, he filed a notice saying that the prosecution would no longer seek the death penalty.
Potential jurors in the case were excused. A new panel is expected to be chosen Nov. 1.
Wisch declined to comment on a pending case, except to say that the trial is still expected to begin Nov. 4.
Nickerson has been indicted on a capital murder charge in the slaying of Lerma, who was killed near a pay phone at a car wash in the 2900 block of East Rosedale Street. The 1994 Camaro that Lerma had borrowed from his brother was found abandoned and stripped in the back yard of a vacant residence.
Nickerson has also been indicted on a capital murder charge in the kidnap-slaying in December 2000 of Misti Mayo, whose body was dumped in Shreveport, La.
Her baby, who was also abducted, was found abandoned, unharmed, inside a minivan parked at a fast-food restaurant in Canton.
Police said they believe that Nickerson and three friends -- Robert Fuller, Christine Smith and Edwanna Williams -- kidnapped Mayo and her son because the men believed that she had told police about their involvement in a tire-shop burglary.
Police have said Mayo was beaten and her head wrapped in electrical tape. An autopsy showed that she suffocated.
If jurors had convicted Nickerson in the Lerma case, prosecutors planned to tell the panel about the Mayo case during the punishment phase of the trial in their effort to obtain a death sentence.
Because they have waived the death penalty, jurors will now only hear about the Lerma case.
Parrish said he has not decided yet how he will handle Nickerson's pending capital murder case in regard to Mayo's slaying.
"I will probably will make the announcement after the verdict" in the Lerma slaying, Parrish said. "We'll take a pass, and we'll wait until Misty Mayo."
Melody McDonald, (817) 390-7386 email@example.com