DNA Retesting Is Contentious in Bryant Case

Attorneys for Kobe Bryant complained to the judge in a court filing Thursday that the laboratory chosen by prosecutors to retest vaginal swabs taken from Bryant’s accuser at a rape examination refuses to allow a defense expert to be present.

Prosecutors, meanwhile, are investigating the background of that expert, Elizabeth Johnson, who was fired from a Texas medical examiner’s office in 1996 and whose methods have been questioned in a death-penalty case.

The swabs have already been tested by Johnson, who is based in Ventura and has done all the independent testing of physical evidence for the defense. At least one of the tests indicates the swabs contain semen from a man other than Bryant, and the defense contends that the alleged victim had sex with another man in the hours between her June 30 encounter with Bryant and her rape examination the next day.

Prosecutors received permission from Judge Terry Ruckriegle at a hearing May 27 to submit the swabs for retesting by June 1, to have the testing begin by June 8 and for tests to be completed by June 18.

Dist. Atty. Mark Hurlbert acknowledged at the hearing that Johnson would be present at the retesting. However, the laboratory chosen by prosecutors, the Bode Technology Group, does not allow defense experts to observe DNA testing.

“It is an absolute policy,” Bode General Manager Kevin McElfresh said. “Never in our history have we allowed a defense expert to observe testing.” Bode has conducted DNA testing since 1995.

“If someone is in the lab, they can be a distraction, especially if they are looking over your shoulder,” McElfresh said. “In fact, because this is a very sensitive test, any extraneous person could cause contamination.”

McElfresh said it is the policy of Bode to provide the defense with complete notes and documentation of all testing. However, Bryant attorney Hal Haddon said that not allowing Johnson to be present violates Ruckriegle’s ruling.

“The prosecution has known since May 10 that this court’s order required it to choose a laboratory that would permit the defense expert to be present during the extraction and testing process,” Haddon wrote.

Said prosecution spokeswoman Krista Flannigan: “We have complied with the court’s order as it was stated. If there are any little details that need to be worked out, we’ll need to do that.”

Also under scrutiny are Johnson’s qualifications. A civil court jury awarded her $315,000 in 1998, concluding she had been fired two years earlier in retaliation for disagreeing with the Harris County, Texas, district attorney in a capital murder case. Her analysis of blood samples did not implicate the prosecution’s prime suspect.

The reason the medical examiner’s office gave for firing her was that she worked too many hours and demanded compensation time off in return.

Johnson’s connection to the investigation of another Texas murder is also of interest to prosecutors. Rodney Reed, now 35, was sentenced to death for the 1996 murder of a 19-year-old Bastrop County woman. Reed’s supporters charge that there is no record that Johnson ever tested DNA samples central to the case. Furthermore, the Austin Chronicle reported that shipping labels that the Texas Department of Public Safety says were used to transport evidence to Johnson’s laboratory in Ventura do not match records kept by the shipping company.

The Texas Court of Criminal Appeals denied Reed’s appeal for a new trial in 2002, but questions continue to be raised, primarily by a volunteer consultant for Reed named David Fisher.

Fisher said he contacted Hurlbert’s office several days ago regarding Johnson and has since forwarded information to Eagle County investigator Gerry Sandberg.

“Elizabeth Johnson is stained by the Bastrop case,” Fisher said. “The Eagle County prosecutors are very disturbed by what they have learned.”