Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2010

The house where Nancy Bergeson lived nestles in what her mother — who lives in California — describes as a “rural” neighborhood in Southwest Portland. Its backyard is protected, literally and psychologically, by a white picket fence.

There was no reason to suspect that on the Tuesday afternoon before Thanksgiving 2009, danger might creep up the stone wall-lined driveway Bergeson shared with one uphill neighbor. There was no reason to suspect that danger might creep through the home she had decorated with souvenirs of her world travels.

And so, when the 57-year-old federal assistant public defender was discovered dead in her dining room on Nov. 24, 2009, investigators did not suspect that she was a victim of murder.

But she was.

“They just tramped around,” Portland defense attorney Lisa Maxfield — who attended law school and worked with Bergeson in Utah before each separately settled in Oregon — says of the investigators who responded to a neighbor’s 911 call. “Who knows what trace evidence was there that’s gone now?” 

Prosecutors and defense attorneys all are familiar with the practical and legal issues that arise when evidence is not collected, or is collected but lost or misinterpreted. But currently, those issues are being discussed — in Oregon and in Washington, D.C. — in the unusual context of three cases that involve not only lawyers as attorneys, but lawyers as crime victims or as defendants in a crime-related civil case.

In the first of those cases, Bergeson’s murder, the crime remains unsolved, despite the state medical examiner’s belief that the scene was secured and no evidence lost during the 16 hours between when Bergeson’s body was found and when an autopsy revealed that she had been strangled.

In the second, a man who says he was wrongly convicted of a triple homicide is suing the Polk County District Attorney’s Office, three lawyers individually and the estate of the late, well-known Eugene defense attorney Ken Morrow.

And in Washington, D.C., the lurid 2006 murder of a former colleague of now-Attorney General Eric Holder remains unsolved after federal investigators lost key cell phone evidence and a judge found insufficient evidence to convict another lawyer and his two housemates of charges relating to tampering with the crime scene.

Unclear Becomes “Very Clear”
Concern about evidence in Bergeson’s case arose because investigators initially — as The Oregonian reported in December — thought her death likely was due to natural causes and therefore decided to move her body. The investigators had responded to the scene after a neighbor girl, who dropped by to walk Bergeson’s golden retriever, reported seeing her body through a window.

“Once we did the autopsy, it was very clear that it was a strangulation,” says Oregon State Medical Examiner Karen Gunson, who found “internal neck injuries consistent with strangulation” and petechiae hemorrhages when she did an autopsy the next morning.

But Gunson says that she is not surprised the deputy medical examiner at the scene did not realize that Bergeson had been murdered.

“Petechiae hemorrhages are not specific to strangulation,” says Gunson of the tiny red spots, caused by broken capillaries, which she says “can even be seen in live people” and are not always visible in nonclinical settings. “And generally, particularly with strangulations done with a broad, soft cloth, you don’t see anything outside, but there are internal injuries.”

Given how friends and family describe Bergeson’s level of physical fitness and strength of personality, it is difficult to see how anyone — short of a professional — could have overpowered her without signs of a struggle on her body and in her home.

“In 1988, she bought an 8-by-10-foot rug in China and carried it all the way across China to Korea, where her brother was participating in the Olympics in water polo,” says Bergeson’s mother, Marian Bergeson, California’s former secretary of education.

Bergeson traveled a lot, including to a world paddling championship in Prague last fall. She also ran marathons, skied and climbed mountains.

“Nancy was very independent,” says her mother, now retired, from her home in Newport Beach, Calif. “She was a product of the ’60s. She grew up in Newport Beach, where she didn’t see minorities until she did a high-school exchange to L.A. That was a very special experience for her. She always went for the underdog. I’d tell her, ‘If you could argue intellectually, you’d have it made.’ ”

Portland defense attorney Maxfield calls her former classmate and colleague “a really good lawyer.”

“She drove prosecutors crazy,” Maxfield says with a laugh. “She even made other defense attorneys a little defensive because she was relentless: she never gave up. I know it worked because when we were in the public defender’s office in Utah, we could play the Nancy Bergeson card.”

Maxfield notes that when Bergeson died, she was at home preparing for a trip to Boston to see her only child, her daughter Jamie, who graduated from Dartmouth College in 2008.

“She raised,” says Maxfield soberly, “the coolest daughter in the world.”

Not a “Whole Lot” Lost
While the failure of on-scene investigators to take such steps as placing Bergeson’s hands in bags to preserve any fibers, hairs or other evidence was, in the words of the Portland police, “not ideal,” Gunson says that she doesn’t think “a whole lot was lost.”

“The criminalist took a lot of photos,” Gunson says of the initial response by a Portland police officer, police forensic expert and deputy medical examiner. “From my point of view, it was one of those cases where you’re not quite sure what happened, so we sealed the house, anyway, until we were done with the autopsy. The victim lived alone. It (the house) was left locked, and the (deputy) medical examiner had the keys. If someone else had a key, he could have gotten in, but we’re not aware of anyone else having a key. We did the autopsy the next morning; we were able to go back and nothing was disturbed.”

Gunson says that Bergeson’s homicide was not unique in lacking external evidence of causation.

“With abdominal injuries in kids, there can be a huge amount of internal injuries, and you see nothing on the surface,” she says. “We had a couple of cases with infants that were thought to have died from SIDS (Sudden Infant Death Syndrome), but after autopsies, there was no question that they were homicides.”

“Another example,” says Gunson, “is a man…who came into the ER for what they thought was an overdose. But the autopsy revealed a .22 wound to the back of his head, hidden by his hair. Many times, I say to the police, ‘This is why we do autopsies!’ ”

Gunson says that even when injuries are visible, potential evidence can be destroyed.

“Even the police will move certain items around; e.g., they think it’s a suicide, so they take the gun away,” she says. “I need to see those things. Or the clothing has been cut off (by medical personnel), and I can’t see the muzzle-to-target distance. Sometimes the cops will take the clothes off. In those cases, I refuse to do the autopsy until they bring me the clothes.”

In addition to cutting away clothing to access wounds, Gunson says that medical personnel also can destroy evidence inadvertently in the course of treating a victim.

“Once in a while, while scrubbing the victim for surgery, hospital staff can remove gun-powder residue,” she says. ”Another big one is that they just cut right through stab wounds and make them larger. That creates a lot of heartburn for us.”

But Gunson says that for her, “One of the biggest things is the time-of-death issue.”

“We can lose the time of death if the medical examiner isn’t allowed into the scene,” she says. “That’s a huge one — huge.

Under Oregon law, the medical examiner is required to investigate and certify the cause and manner of all human deaths that occur under suspicious or unknown circumstances. State law also allows a medical examiner to enter a dwelling or other place, without a warrant, if he has reasonable cause to believe that a body, or evidence of the circumstances of death requiring investigation, may be found there. He also has the authority to place the dwelling or other enclosure under his custody or control for up to five days, which Gunson says effectively was done in Bergeson’s case.

“Lots of people in areas of Oregon, outside of Portland, don’t know this,” says Gunson of the medical examiner’s right to such entry.

An on-scene medical examiner can observe whether a body is in rigor mortis (has stiffened joints caused by the accumulation of metabolic acid after death) or shows livor mortis (blood settled to the body’s lowest points after the heart has stopped beating).

The medical examiner also can help to determine the time of death by taking the body’s temperature. “We insert a thermometer in the rectum after making a slit in the (victim’s) clothes,” Gunson says. “It doesn’t affect swabs or other evidence.”

Acting U.S. Attorney Dwight Holton says that his office has found that working death scenes as crime scenes can pay off, even if the victim wasn’t killed intentionally.

“Some law-enforcement agencies treat overdose fatalities as accidental deaths rather than as crime scenes,” Holton explains. “In these places, the body goes to the ME for examination, but no one works the scene as a crime scene. (But) in recent years, working with local DAs and police, we’ve started to treat overdose fatalities as crime scenes as a matter of protocol in Multnomah and Marion counties — two counties with relatively high incidences of drug-overdose fatalities.”

When detectives collect evidence and track back a lethal drug overdose,” says Holton, “they can often find the dealer who delivered it. That person is often pretty low-level but many times will flip — and up the hierarchy we go.”

“When we get to the level of a very large-scale trafficker, our office can step in, working with the local DA, and charge the defendant with a Len Bias homicide,” continues Holton. He is referring to legislation that was passed after basketball star Len Bias died of a cocaine overdose. That legislation provides for a mandatory, 20-year minimum sentence for suppliers of fatal drug overdoses. “This often leads us even further up the hierarchy. We have done about 10 homicides this way since we started doing this just a few years ago, and it is all possible because law enforcement treated them as crime scenes and collected evidence.”

Lost Evidence and the Constitution
But what about when evidence isn’t collected, or is collected but lost?

These scenarios can pose problems for prosecutors, who now must contend with motions to suppress and/or to dismiss — and potential opportunities for defenders.

“From the prosecution’s point of view, “It’s only a Constitutional due-process problem if there’s bad faith on the part of the (police) officer,” says Jennifer Lloyd, attorney in charge of criminal appeals for the Oregon Department of Justice.

In the landmark case of Arizona v. Youngblood, 488 U.S. 51 (1988) rehearing denied 488 U.S. 1051 (1989), the Supreme Court held that “Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” In that case, the Court said the police’s failure to refrigerate the victim’s clothing and to perform tests on the semen samples “can at worst be described as negligent.”

Lloyd says that in her view, “the bad-faith standard makes sense in the sense that no one has the incentive to lose evidence or to not collect evidence. The fact of the matter is: mistakes happen.”

Defense attorney Maxfield agrees that such evidentiary issues only rarely rise to the Constitutional level.

“Defense attorneys rant and rave, but don’t expect much to happen (re missing evidence),” she says. “I only see missing evidence every couple of years where it’s big enough to make a stink about.”

Maxfield says that she rarely blames the prosecutor when evidence disappears.

She cites a case she tried earlier this year in which the judge gave the jury a less-satisfactory evidence instruction after a police officer lost an allegedly exculpatory photograph that had been on the victim’s cell phone.

“When the cop testified that he’d lost the infamous ‘kiss’ photograph,” says Maxfield, who narrowly lost her motion to dismiss the case, “two jurors actually gasped. Almost always, if something goes wrong, it’s at the law-enforcement stage. Prosecutors want to preserve evidence. Even less-ethical prosecutors don’t want to have that fight (about missing evidence).”

Lost Evidence Equals Lost Case?
But sometimes, it is the prosecutors who have lost the evidence.

For example, in September 2009, the Oregon Department of Justice stipulated that inmate Philip Cannon was entitled to post-conviction relief after his attorney argued, in a 130-page memorandum, that Cannon received ineffective assistance of counsel when trial attorney Ken Morrow failed to challenge expert testimony. The testimony — that Cannon possessed bullets and casings whose lead content and striation marks matched bullets and casings found at the scene — was key to a jury’s conclusion that he had murdered three rural Polk County residents in 1998. The murder weapon was never found.

But, after Cannon was granted post-conviction relief and the case returned to Polk County for a new trial, the district attorney’s office discovered that the crucial casings were gone.

In a statement made when Cannon was released from custody in December, district attorney Stan Butterfield, who had nothing to do with the original prosecution, said that the office’s policy had been to purge criminal files, including physical evidence, after the direct appeals process was concluded.

The exception to that policy, said Butterfield, was murder cases, whose files and physical evidence were to be held until all post-conviction and federal habeas appeals were concluded.

“(Cannon) exhausted his direct appeals in 2005,” Butterfield said in his statement. “During the process of reviewing the case (for potential re-indictment), it was determined that the district attorney’s office in 2005 signed an order purging the file in the case. Based on the destruction of evidence, I determined that in the interest of justice, the case should be dismissed without prejudice…After discovering this mistake, I have enacted policy changes to make sure nothing like this happens again.”

Salem attorney Mark Geiger, who represented Cannon on his post-conviction relief petition and also was appointed to represent him at the new trial, says he doesn’t know how prosecutors could ever re-indict and re-try his client.

“The stuff they lost or misplaced was key evidence,” he explains.

“At trial, the comparative bullet analysis was huge because their expert, unchallenged by any defense witness, said that he was able to break down the lead component in the bullets that were obtained from the victims and from the defendant’s residence,” says Geiger. “He testified that ‘Gosh, these (bullets) are virtually indistinguishable; they must have come from the same box.’ That kind of evidence is very powerful: I can’t imagine that the jury wouldn’t have convicted, especially because the evidence was unchallenged.”

In fact, says Geiger, lead comparison analysis had been discredited by the time of Cannon’s trial.

“On retrial,” Geiger continues, “they couldn’t use the comparative lead analysis, so they were going to use the striation. Based on all the research that we did, we didn’t think it would pass muster. Also, that’s when they discovered that they had lost the casings.”

“They had a huge problem keeping track of that evidence,” Geiger concludes. “Chain of evidence can be an issue or a red herring: in this case it was a real issue.”

In February, Cannon filed a complaint in U.S. District Court in Portland against the government entities and individuals who had been involved in his case. The defendants include: the Polk County District Attorney’s Office; the prosecutors; the attorney who represented the Department of Justice on his petition for post-conviction relief; and the executor of Morrow’s estate.

Salem attorney Kevin Lafky, who filed the lawsuit, says that his client is seeking compensation for the time he served.

“We do a lot of civil rights work, but fortunately, you don’t see a case like Mr. Cannon’s very often,” says Lafky. “It’s unfortunate that he had to spend more than 11 years in prison.”

Stranger than Fiction in D.C.
The August 2006 murder of Robert Wone in Washington, D.C., has everything a tabloid could ask for.

The victim: a well-respected, heterosexual attorney whose grieving widow was represented by his former colleague, Eric Holder, before Holder’s elevation to attorney general. The scene: a row house in D.C.’s tony Dupont Circle neighborhood, occupied by three gay men who were engaged in a “polyamorous” relationship. The challenge: a crime scene that had been tampered with, allegedly by the three men, and crucial evidence lost by federal investigators.

Wone, who lived in Virginia but had arranged to spend the night in the D.C. townhouse for work-related reasons, was found dead in its guest bedroom shortly after one of the men called 911 at 11:49 p.m. on Aug. 2, 2006. Wone had attended law school with another of the men, and all three had hosted a 30th birthday party for him in 2004.

Although the men said that they had found Wone stabbed, apparently by an unidentified intruder, after they had heard a scream, local media soon were reporting police allegations that the men had tampered with the crime scene.

Then, in April 2009, the facts became even more bizarre when the U.S. Attorney’s Office revealed that the Secret Service had failed to copy two crucial e-mail messages Wone apparently had typed on his BlackBerry device the night he died. The BlackBerry, which had been found on the guest room dresser along with Wone’s other personal effects, apparently had been returned to his employer and was no longer available.

“The existence of the e-mail messages first surfaced this week,” a TV station reported on April 24, 2009, “when the government included the evidence in a motion, claiming (that)… Wone typed two messages,” one at 11:05 p.m. telling his wife he was going to bed and the other at 11:07, confirming an appointment for the next day. “The lead detective… says he saw the messages, but there is no evidence that they were ever sent.”

The implication for the attorneys representing the three men on obstruction-of-justice charges was clear: “If the decedent was sending email messages at 11:05 p.m. and 11:07 p.m.,” the TV report quoted one attorney as saying, “then obviously he wasn’t dead.”

And if Wone was alive at 11:07, what did that do to the government’s theory that he had been restrained by unknown means and sexually and physically assaulted for at least an hour, and that the crime scene had been cleaned, before paramedics found him — in his usual night-time garb of jogging shorts, T-shirt and dental night guard — on top of the neatly turned-down guest bed at 11:54?

On June 29, 2010, almost two years after Wone’s murder, a federal judge ruled that prosecutors had not proved the three men’s guilt of the obstruction of justice charges beyond a reasonable doubt. A civil case against the three, men filed by Wone’s widow in November 2008, has yet to go to trial. No one has been charged with murdering Wone.

Asking the Right Questions
Meanwhile, the investigation into Bergeson’s murder, while nowhere near as lengthy or as publicized as Wone’s, continues.

“If the same scene had been in North Portland, their instincts might have taken them in a different direction,” Maxfield quotes another defense attorney as saying about the investigators who responded to the 911 call to Bergeson’s residence. “But because Nancy was a middle-class woman in a middle-class neighborhood…”

“If they had evidence, they wouldn’t have been asking the questions they were asking,” Maxfield concludes. “The fact that I was even on the interview list shows how far they were reaching.”

In late January, in the media’s last mention of the case, the Oregonian reported that the Crime Stoppers award for information had been increased to $10,000. According to a Portland police spokeswoman, such decisions are made on a case-by-case basis, sometimes in high-profile cases, or when there is no obvious direction to the investigation.

But in July, according to other sources who declined to be named, it appeared that investigators may have obtained useful physical evidence after all, and still were actively working to solve the crime.

Meanwhile, a friend of Bergeson’s has purchased her trim, Colonial-gray residence with its white picket fence. As of July, a “for rent” sign stood next to the stone wall-lined driveway.

Janine Robben has been a member of the Oregon State Bar since 1980. She is the director of the Oregon Crime Victims Law Center and a frequent contributor to the Bulletin. 

© 2010 Janine Robben

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