Cape Cod Murder

Those problematic fibers

Interesting story in the Cape Cod Times on Saturday under the headline, "Post-trial: DNA tests, appeal in works."

"Cape and Islands District Attorney Michael O'Keefe said yesterday he would test some of the DNA samples in the state police crime lab that were not previously tested, but not because he expected to gain any new information," wrote Times staff writer Hilary Russ.

"'I have asked that certain testing be done only because it became such a huge issue at the trial," O'Keefe is quoted as saying. "I want to see that those who have questions, even though we may not feel that they are persuasive at all, attain some level of satisfaction."

Russ goes on to write that "one piece of evidence in particular -- the external vaginal swab collected from Worthington's body -- came up in trial when an expert for the defense, Richard Saferstein, pointed out that though it tested positive for semen, it had never been DNA tested for a match to McCowen or anyone else."

O'Keefe (shown in the photo above) described this as "a red herring" and said the protocol at the crime lab "is to test only internal vaginal samples, which can prove penetration and hence rape charges," Russ writes. On this point, O'Keefe said, "the laboratory's experience is that what comes out is a seepage or a drainage."

But whether DNA from the external swap matches with convicted killer Christopher McCowen was one of several areas of uncertainty raised by Saferstein, who spent 20 years working for the New Jersey state police crime lab and wrote a widely-used text on forensic science now in its ninth edition (the sperm found in Worthington's vagina did match with McCowen's DNA, to a 1-in-199.8 billion chance it wasn't his).

Saferstein also pointed out that white and blue fibers found on Worthington's genital area were not tested by the crime lab -- and as those who followed the trial are aware, Jeremy Frazier, the Wellfleet man alleged by McCowen to have killed Worthington, was wearing a white and blue sweater on the night the prosecution believes Worthington was murdered.

"But O'Keefe said he had no intention of testing those fibers," Russ writes. "I don't find those persuasive," O'Keefe said. "Fibers are very generic. Many people have sweaters with blue and green or whatever the colors were. You can conjure up any kind of expert these days to say anything."

But Frazier was not the only person wearing white on the night of the murder. So was McCowen, who can be seen clad in white pants on video footage taken at the Juice Bar. And that fibers from Frazier's sweater could have transferred to McCowen's clothing, and then to Worthington, is hardly beyond the realm of possibility.

O'Keefe deserves credit for taking a risk in ordering further tests of the evidence, and I won't be surprised if the external swab matches with McCowen's DNA, thereby demolishing one of the doubts in this case. But I wish O'Keefe had gone a step further and asked for the fibers also to be examined for a possible match with Frazier's sweater. Yet O'Keefe is not alone in declining to make this request.

Another person with a prominent role in the trial -- arguably the most prominent -- could have asked for the fibers to be scrutinized for a match, and chose not to: Robert George, McCowen's attorney.

Nor did George seek for any other forensic evidence to be further examined during the trial. Nor, for that matter, was such a request made by prosecutor Robert Welsh III.

That O'Keefe wasted little time in requesting more DNA testing -- only one day after the verdicts against McCowen were announced -- shows that the issue hovered like a pall over the prosecution's case, and O'Keefe is moving quickly to resolve it before the case is heard on mandatory appeal or possibly overturned.

But it was George with much more at stake in leaving the issue unresolved -- the potential for his 34-year-old client to spend the rest of his life in prison. Perhaps an arcane rule of law would have prevented state police analysis of evidence during the actual trial, but even so, nothing would have prevented George from filing a motion to that effect. Even if his motion was rejected by Judge Gary Nickerson, George would have been on record as wanting the issue resolved, and let the chips fall where they may. And whoever filed the motion would have put the other side in an inherently defensive position when it came to the forensic evidence.

That George chose not to take this path means, at least as I interpret it, that he could not be certain of the results. Faced with this uncertainty, George apparently decided it was preferable to leave doubts in the minds of jurors about the work of the crime lab, rather than seek further analysis that may have only further incriminated McCowen. 

(photo credit, Barnstable Patriot)