In the spring of 2009 I received a call from Jillian Somers, then a law student in her final semester, asking whether I would be willing to talk about Darrell's case. I asked Jillian how she had found us and she told me that she come to us through Darrell's poetry. He would have liked that and so we not only spoke at length but I made his legal records available to Jillian. We thank her!
Final paper for a forensic law class by Jillian Somers at Hastings School of Law, CA which reaches the conclusion that Alabama likely executed an innocent man.
Table of Contents
I. Circumstances Surrounding the Trial for the Murder of Annie Laura Orr Suggest Alabama Executed an Innocent Man........................................................................................................................ 1
A. Darrell Grayson was Executed for the Murder, Rape and Robbery of Annie Laura Orr ..........................3
i. The Crime and Evidence of Issue: The Murder, Rape and Robbery of Annie Laura Orr on December 24, 1981 in Montevallo Alabama .........................................................................................................................................4
B. The Scientific Testimony Surrounding the Blood And Semen Evidence Introduced at Trial Was of Questionable Validity. .............................................................................................................................................................5
i. ABO Blood Typing Cannot Conclusively Link Someone to A Crime, but Can Be Used to Exclude. ................6
1. At Trial the Judge Allowed ABO Typing Testimony That Made It Seem As If the Tests Were More Discerning Than They Are in Reality. ..................................................................................................................................9
C. Had Grayson's Trial Occurred Now, A Very Advanced DNA Test Called Short Tandem Repeat (STR) Could Have Been Used on the Blood and Semen Samples And Could Have Eliminated Grayson As a Suspect. .....13
D. The Expert Testimony Regarding the Hair Comparison at Grayson's Trial Was of Questionable Probative Value. ...............................................................................................................................................................16
i. It Is Possible to Discern Different Characteristics through Hair Comparison, but It Cannot Definitively Identify Someone ...........................................................................................................................................................16
ii. At Trial the Alabama Judge Allowed Testimony regarding a Hair Comparison Done on Samples from a Sock and from Hairs Found at the Scene. .........................................................................................................................17
E. Had Grayson's Trial Occurred Now He Could Have Taken Advantage of mtDNA Testing on the Hairs Recovered from the Scene To Determine Whether It Matched His DNA Profile. ..................................................................18
II. Alabama was a De Facto Frye state at the Time of Grayson’s Trial, but Now Follows the Daubert Test with Regard to DNA evidence. ...................................................................................................................................20
A. In 1994 Alabama switched to Daubert as the standard of admissibility for DNA evidence. .........................20
i. Physical Comparisons Are Removed from the Frye Standard and Instead Governed by Alabama Rule of Evidence 702. .....................................................................................................................................................21
B. An Access to DNA Statute Currently Being Considered in the Alabama Legislature Could Have Helped Grayson By Allowing Him Access to His DNA Post-conviction........................................................................................ 23
III. In Addition To the Scientific and Legal Problems with Grayson's Trial There Were Situational Problems As Well -- Including a Lack of Investigation. ........................................................................................................................25
IV. Conclusion .....................................................................................................................................................28
I. Circumstances Surrounding the Trial for the Murder of Annie Laura Orr Suggest Alabama Executed an Innocent Man
A lack of investigation, basic science and lax evidentiary bars led to the conviction of a man who is likely innocent of the crime for which he was put on death row. Darrell Grayson was arrested, convicted and executed in Alabama for the murder, rape and robbery of Annie Laura Orr. He never knew if he committed this crime because at the time of its commission in 1981 he was drunk and high. Evidence at trial included blood and hair evidence to which there were very few objections made by Grayson's attorney.
The blood evidence was ABO typed by Kevin Noppinger who worked as a forensic serologist with the Department of Forensic Sciences in Birmingham. The hair evidence was compared by Gerald Burrow of the Department of Forensic Science's Birmingham Laboratory. Burrow compared the hairs found through a microscope and testified that some of it had characteristics of "Negroid" hair.
Since the time of Grayson's trial, forensic testing on blood evidence has advanced significantly. It is now possible to do highly discriminating DNA testing on blood samples instead of simply doing ABO typing. Additionally, the comparison of hair evidence has mostly been deemphasized, unless accompanied by some form of DNA testing. These advanced tests would have helped Grayson show his innocence if they had been available at his trial.
Additionally, the Alabama evidence laws concerning the admission of forensic testimony have changed since Grayson's trial with regard to blood evidence. The majority of scientific evidence in Alabama is judged under the Frye standard. However, in 1994 a new statute was adopted that set the admissibility standard with regard to DNA testimony as the Daubert standard. This standard is more restrictive than the Frye standard and might have helped Grayson.
Although, Grayson attempted to take advantage of some of these advances in forensic science -- specifically advanced DNA testing -- Alabama and the federal courts denied his requests. The prosecutors, the state, and the federal judicial system all denied Grayson access to the DNA evidence from the crime scene; preventing him from performing the newly developed DNA tests to determine his innocence.
The State of Alabama executed Darrell Grayson on July 26, 2007, by lethal injection as the granddaughter of the victim he allegedly raped and murdered looked on. Before his death at the hands of the State, Grayson simply said “peace.” In a state that sends the highest number of people of any state in the United States to death row-- higher even than Texas -- Grayson never had a chance. Alabama's execution numbers are higher even though Texas has a population with approximately twenty thousand more people than Alabama.
This paper will examine the scientific and legal issues surrounding the blood and hair testimony at Grayson's trial. Advances in science will be analyzed to see if they would have helped Grayson establish his innocence. The paper will also analyze the law regarding scientific evidence in Alabama at the time of Grayson's trial, as well as the updates to that law to determine if these updates would have helped Grayson. Finally, the last section will discuss the additional errors made throughout Grayson's arrest and trial and how these errors affected Grayson.
A. Darrell Grayson was Executed for the Murder, Rape and Robbery of Annie Laura Orr
Grayson was one of 12 children in an African-American single-parent home. At the time of the incident he lived in a room with two of his brothers – Rodney and Lee. A high school dropout, Grayson worked for the telephone company in Montevallo. Although it is not widely known Grayson's father was a prominent man in Montevallo and never accepted or acknowledged Grayson. A sensitive and solitary individual who strongly wished for his father’s approval, Grayson began drinking when his father died. On December 24, 1981 Grayson, his brother Rodney, Victor Kennedy and Al Naugher were playing cards, drinking and doing drugs. Grayson was nineteen.
i. The Crime and Evidence of Issue: The Murder, Rape and Robbery of Annie Laura Orr on December 24, 1981 in Montevallo Alabama
On December 24, 1981 Annie Laura Orr was burglarized, beaten, terrorized, raped and suffocated. Mrs. Orr was eighty-six years old and a widow. She was a member of a prominent family in Montevallo, Alabama and was White. At some point during the night someone entered Mrs. Orr’s house subdued and beat her. The intruders covered her face with a pillowcase and scotch taped it to keep it in place. They fired two to three shots while in the house- one of which lodged in the bedroom wall. They repeatedly raped Mrs. Orr who later died from asphyxiation due to the moisture her mouth caused on the pillowcase. Her body was discovered the next morning by her son, and the police were called to investigate.
Upon arrival at the scene the officers discovered a trail of cards going from Mrs. Orr’s house to Victor Kennedy’s and began looking for both Kennedy and Grayson. Grayson was later discovered “squatting in the bushes” near his home. He was taken into custody by the police and gave three statements all inculpatory. He was tried for capital murder during a burglary. The jury convicted Grayson of the charges; and during sentencing an aggravating factor was found to enhance his sentence – he was found to have committed the rape during the crime as well. This aggravating factor made him eligible for capital punishment. Grayson was sentenced to die by the State of Alabama.
B. The Scientific Testimony Surrounding the Blood And Semen Evidence Introduced at Trial Was of Questionable Validity.
The blood evidence came from a shirt that apparently belonged to Grayson and had been found in the woods near his home. At the trial a man named William Brown, Jr. aka "Yak" testified that he knew Darrell Grayson from going to school with him. Yak also testified that he and his brother-in-law had found a shirt while they were hunting down in the swamp, and that he had recognized it as Grayson's shirt. He testified he remembered seeing Darrell with this shirt many times before. When he found the shirt it had blood stains on it and he and his brother-in-law took the shirt to their grandpa's house by carrying it on a stick and not touching it. After that they took it back to the rock where they found it and called the police.
Additionally, semen evidence was introduced at trial from samples on the victim's nightgown. The nightgown had a large stain on it that was a mixture of both semen and blood. This evidence was collected by Dr. Joseph Embry who did the autopsy of the victim in this case. The bed sheet and pillowcase also had blood stains on them and the bed sheet had urine and semen stains, but none of these stains could be typed.
i. ABO Blood Typing Cannot Conclusively Link Someone to A Crime, but Can Be Used to Exclude.
Blood groups were discovered in 1900 by a German pathologist – Karl Landsteiner. There are two types of marker proteins that may be present on someone’s red blood cells. These two markers are denoted as A and B and the presence or absence of these two markers determines the blood group to which that person belongs. The most common blood type is O, followed by A, B and finally AB. However, the precise frequency of each letter differs among different races.
At the time of Grayson’s trial ABO typing was done by forward typing and reverse typing. For dried blood stains absorption-inhibition was the classic method for detecting antigens in the blood. This means that red blood cells were tested for the presence of A or B antigens using Anti - A or Anti - B reagents and then serum was tested using A and B reagents. A comparison of the stain material with a control showed whether an antigen was present or not. However, there were also a few more sensitive ways to test the blood; mixed agglutination, and absorption -elution.
Mixed agglutination was good for use on textile fabrics. With this method fibers could be submerged in antiserum to determine the antigen and then the ABO type. Absorption-elution begins in the same manner as mixed agglutination, but after the fibers are submerged and removed, their temperature is raised to about 56° Celsius. This "is then tested with indicator cells of the appropriate group" to show which antigen is present. The absorption method "is both more sensitive and more versatile than mixed agglutination."
However, even this method was less reliable when there was a mixture of blood and semen. This was especially problematic when the two came from different people, but could present a problem with interpretation even if they originated from the same person. This mixture of fluids raised the danger of erroneous interpretation.
It is also possible to detect specific enzyme variations in addition to the ABO type of the blood. For example human red cell phosphoglucomutase (PGM), human red cell adenylate kinase (AK), and human hemoglobin (HB). PGM has three commonly occurring variants -- PGM 1, PGM 2-1, and PGM 2. These variants are determined by looking at the loci and examining the alleles found.
This method can also be used on semen, but a larger sample is needed because there is less PGM in the semen than in blood. However, when the semen is mixed with vaginal secretion this method may prove ineffective. "If the woman is a type 2-1, then no identification of the semen can be made unless the clear-cut type 1 or type 2 only is seen."
Another variant is the AK enzyme -- again a system of multiple alleles at a single locus. "There are two common forms of the enzyme, AK1 and the heterozygote AK 2-1." This enzyme is very stable, and as long as it is refrigerated, can be typed up to six months after recovery. Additionally, typing has been performed on many kinds of materials and the type of material does not appear to matter to the testing. The frequency of the population of American Whites with AK 2-1 is 91.7% and in American Blacks is 98.6%.
Hemoglobin (HB) is another variation that may be present. HB type A is the main adult type and comprises 98% of regular blood.
While all of this testing can be done to determine someone's ABO blood type and specific variants at different loci, it cannot tell what specific person the blood came from. This type of testing allows someone "to exclude an individual as a source of a blood stain but cannot unequivocally link a particular stain to a particular individual." Thus, these tests are recognized as powerful ways to clear someone as a suspect, but not to include them. Especially because the typical genetic profile that is determined through conventional blood typing can generally be found in from 1 to 10 percent of the overall population.
1. At Trial the Judge Allowed ABO Typing Testimony That Made It Seem As If the Tests Were More Discerning Than They Are in Reality.
During trial Kevin Noppinger testified as a forensic serologist regarding the blood and semen stains found in the case. He discussed the typing of the victim's blood, Kennedy's blood and Grayson's blood. He first discussed the results of his tests on the victim's blood; stating that she was type O. Mrs. Orr's PGM was type 2-1, her AK was type 1-1, and her HB was type A. Kennedy was also type O with an AK type 1-1 and an HB type A, but his PGM was type 1-1. However, Grayson had blood type B with a PGM type 2-1, AK type 1-1, and an HB of type A. Because of these differences Noppinger was able to testify about the blood type of the samples found at the scene and say whether they likely belonged to Grayson or one of the other two people at the scene.
This became especially relevant when Noppinger examined the shirt found by Yak and tested the blood stains found on the front right portion of the shirt. He made cuts to remove samples, but did not discuss the method he used beyond this testimony. After testing, Noppinger determined that this was human blood, and the blood type was O. He testified that this meant that although this was Darrell Grayson's shirt, the blood on it could not have been his. Additionally, he testified that the blood could have been Kennedy's or it could have been Mrs. Orr's.
Similarly, Noppinger examined the nightgown found at the scene and testified that the lower part of the nightgown was stained with a mix of blood and seminal fluid. He performed conventional serology on the semen stain on the nightgown, but because it was mixed, he was only able to get the blood type and PGM, and not any additional information. The semen in the stain was type B. He also stated this semen could not have been Mrs. Orr's, and that because it was type B, it could not have been Kennedy's, but that it could have been Grayson's. Additionally, Noppinger testified that the semen had a PGM type of 2-1 which was also consistent with Grayson's blood.
However, there was one other issue at trial regarding Grayson that Noppinger discussed - the fact that Grayson was a non-secretor. Non-secretor's are persons who secrete their blood type only minimally in their other bodily fluids. Noppinger discussed this fact on the stand, but still testified that he could type the semen, and that it could be Grayson's. He testified that because there was a large amount of semen in the stain that this is why the blood type could be detected as type B.
In contrast to Noppinger's testimony regarding non-secretor status, another expert was later used in Grayson's case. Dr. Edward T. Blake, the director of Forensic Science Associates reviewed Noppinger's testimony and completely disagreed with his conclusions. Blake stated that Noppinger's testimony that "Grayson, a non-secretor, could be the donor of the B antigens detected in the semen because there was a large concentration of semen in the stain – [was] simply false." Instead, "the blood type antigens of non-secretor's are not detected through conventional serological testing of semen even if there is a lot of semen."
Thus, if Noppinger was actually able to type the semen from the nightgown as type B, his testing actually exculpated Grayson. Because Grayson was a non-secretor, his blood type could not have been found from the semen stain. The fact that type B was found, shows this was someone else's fluid and "tends to establish that someone other than Grayson was Mr. Kennedy's co-perpetrator." While Grayson's attorney Richard Bell inquired into Grayson's non-secretor status on voir dire examination, it was completely ineffective. He established that Grayson was a non-secretor, but not what this meant for Grayson or for the test results.
Additionally, not once during Noppinger's testimony was he questioned about, or did he discuss, the possibility that this could be someone else's blood and semen entirely. Grayson's attorney did not cross-examine him about the percentages of people with particular blood types. No additional suspects were investigated and no additional blood samples were ever obtained, Noppinger was allowed to testify that of three people at the crime scene Grayson was the only one with type B blood. The impact of this testimony was larger than it should have been, because Noppinger was able to say that Grayson was type B with a PGM of 2-1 as was the semen found on Mrs. Orr's nightgown, and this semen could not have come from anyone else at the scene. Similarly, he was able to testify that the blood on Grayson's shirt was not Grayson's, but could have been Mrs. Orr's or Kennedy's. This testimony trumped up the import of the blood typing done in this case because it made it seem as if it could conclusively point to a perpetrator - in this case Grayson. When instead the fact that the blood on the shirt was type O simply showed the blood was from the most widely found blood group, not from Mrs. Orr.
If this testimony was going to be allowed by the trial court, the jury should have been instructed of the population frequency of those with type B and type O blood. Although this would not have entirely solved the problem, it would at least have shown the jury there was a large pool of people from which a type B or O could be found during testing. Had this testimony been required the jury would have learned that type B antigens are found in 19.7% of African Americans. Instead, from the testimony the court allowed Noppinger to give, it appeared that blood typing was more discerning than it actually is, because it was understood that only two men committed the murder and rape and one of them was type B and the other type O. There is a "potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.” Here, both problems were present.
Because this testimony was allowed without explanation, the jury did not know that a very high percentage of the population could have these exact same blood typing results. A PGM type of 2-1 is expected in 28.5% of the American Black population. An AK type of 2-1 is found in 98.6% of the American Black population. The HB type A is found in 98% of all human blood. Had the jury been given these numbers, they would at least have known how broad the blood typing results they were being given were. This may have helped Grayson by showing the jury just how basic these tests were.
Additionally, there may have been a problem with the determination of the blood type from the sperm because the sample was likely a mix of feminine and male fluids. Because a determination of PGM type when the sample is mixed becomes almost impossible, it is likely the PGM type of the sperm was not determinable and should not have been admissible. Noppinger testified that Mrs. Orr's PGM was 2-1, and the PGM of the sperm found on her nightgown was also type 2-1. However, in PGM testing when the woman is already type 2-1, it is not possible for an identification of the semen's PGM to be made unless it is only a type 1 or type 2. It would have been impossible for Noppinger to establish that the sperm was 2-1, and he should not have been allowed to testify to this, or to the fact that this was consistent with Grayson's blood at the trial.
Similarly, at trial there was no questioning about the method of testing used by Noppinger. If he used mixed agglutination, it is less reliable when there is a mixture of blood and semen found as was the case with the stain on the nightgown in Grayson's case. A mixture would have raised the danger of erroneous interpretation of the results. No questions were asked about this possibility at Grayson's trial.
C. Had Grayson's Trial Occurred Now, A Very Advanced DNA Test Called Short Tandem Repeat (STR) Could Have Been Used on the Blood and Semen Samples And Could Have Eliminated Grayson As a Suspect.
Had Grayson’s trial occurred at the current time, he would have had the opportunity to use much advanced DNA tests to conclusively determine the genetic profile of the blood and semen. Although Grayson never knew the state of the samples in Alabama's possession, it is likely that DNA tests could have been performed on them. For many of these tests you need only a very small sample; and results can be obtained even with a degraded sample.
“It is now universally recognized that DNA testing is the ‘foremost forensic technique for identifying perpetrators, and eliminating suspects, when biological material such as saliva, skin, blood, hair, or semen [is] left at a crime scene.’” Short Tandem Repeat (“STR”) testing is a very discerning DNA method. STR is not the first kind of DNA testing to be brought into forensic analysis, but this type of testing has a substantial advantage over previous tests. In STR testing alleles that differ in only one repeat unit can be separated and clearly distinguished from one another. Additionally, like previous methods STR's consist of repeated sequences, but they "have smaller repeat units (usually 3 to 5 base pairs) and fewer of them (usually 7 to 15 alleles per locus)" compared to previous methods. STR is valuable because it can reveal two male genetic profiles in a certain sample.
This method of testing ‘increased exponentially the reliability of forensic identification over earlier techniques.’ Through small samples STR can "generate a profile that is effectively unique among the world's population." Instead of simply being able to exclude someone from suspicion, STR DNA results can establish to a very high certainty who committed the crime. Additionally, if the STR testing exculpates the defendant in the case, it can also identify the true perpetrator of the crime when it is run through a database.
Similarly, "[t]he interpretation of STRs is usually less ambiguous than that of [previous forms of DNA testing] and the process is more rapid—days instead of weeks." STR is also helpful because polymerase chain reaction (PCR) can be used to replicate a small sample and make many identical copies that can then be tested.
With STR DNA testing it is also possible to determine a random match probability (RMP) which will show how rare the genetic profile is in the general population. This can be a very small number when a match is declared -- for example, around one in 1.1 million in a certain case. "These numbers make it extremely unlikely that a particular genetic profile can belong to more than one individual." This RMP allows scientists testifying about DNA evidence to do what was not possible, or just not done, in Grayson's case -- to tell the jury how likely it is that someone else would have this result. And, while there is still some disagreement in cold cases what type of random match probability statistic should be used -- "everyone agrees that the RMP is the proper statistic to use in a DNA confirmation-match case" where evidence has been collected from the scene and tested against the defendant.
Had Grayson been able to take advantage of this type of testing at his trial, he would have been in a substantially better position. STR testing could have shown it was not Grayson's semen at the scene. It might also have been possible for forensics to determine the actual perpetrator of the crime. Instead of having the problem of testimony on blood grouping being used to establish that Grayson was the perpetrator, Grayson could have performed the test that would have exculpated him conclusively. Additionally, if the STR testing had revealed two profiles neither of which were Grayson's, this would have helped him at trial by showing more investigation was needed.
D. The Expert Testimony Regarding the Hair Comparison at Grayson's Trial Was of Questionable Probative Value.
Hair evidence was found at the scene and on Grayson's sock following his arrest. The sock with hair on it was recovered from a pile of clothes in the room Grayson shared with his brother Rodney. The hairs found at the scene were very small and did not allow for individual comparison against Kennedy’s or Grayson's hair. The hair found on Grayson's sock was compared against the victim's hair.
i. It Is Possible to Discern Different Characteristics through Hair Comparison, but It Cannot Definitively Identify Someone
Hair is composed mostly of the protein keratin and has different characteristics depending on its source. "Because hairs can be transferred during physical contact, their presence can associate a suspect to a victim or a suspect/victim to a crime scene." Hairs are generally examined using a comparison microscope to determine “the identification of questioned hairs and the comparison of questioned and known hairs." A comparison microscope allows the examiner to look at two slides at once and determine their similarities. While hairs can be useful in assessing the crime, no statistical probabilities can be determined regarding how likely it is that a certain hair came from the defendant.
In human hairs there are known variations in hair characteristics between the different races. Head hairs are generally considered best for making a determination about what race the person belongs to, but other hairs may be useful. The hair shafts of Caucasian people are generally round to oval when looked at on a cross-section and have evenly distributed fine to medium pigment granules. They are also generally a fine to medium coarseness and are either straight or wavy. In contrast hairs of African origin are usually flatter when looked at in a cross-section and tend to appear wavy or kinky. Additionally, the pigment granules in hair of African origin are much larger and can be so dense as to make the hair appear opaque.
ii. At Trial the Alabama Judge Allowed Testimony regarding a Hair Comparison Done on Samples from a Sock and from Hairs Found at the Scene.
Gerald Wayne Burrow of the Department of Forensic Science's Birmingham laboratory examined the hair evidence in Grayson's case. He mounted the hairs on slides and examined them through a microscope. He also shined light through the different hairs during his investigation.
Burrows testified that the hairs found at the crime scene had ‘Negroid’ characteristics that were consistent with the hair of both Grayson and Kennedy. He also testified that this hair was inconsistent with that of the victim. The differences between hair with Negroid characteristics and Caucasian characteristics "are in the pigment granules primarily present. The pigment granules present in Negroid hair is [sic] much darker, it is a darker color." Additionally, the hair itself has a flatter shape as opposed to the oval shape of Caucasian hair. Finally, he stated that Negroid hair is so dense with pigment that when he shines his light on the hair it does not pass through. However, he testified he had been unable to compare the hairs retrieved from the scene with samples from Grayson or Kennedy because the portions of hair were too small. Because of this he was unable to discuss similarities or differences between the hair found at the scene and hair taken from Grayson's head. However, had Burrows been able to do this type of comparison it might have produced erroneous results as well.
E. Had Grayson's Trial Occurred Now He Could Have Taken Advantage of mtDNA Testing on the Hairs Recovered from the Scene To Determine Whether It Matched His DNA Profile.
At the time of Grayson’s trial DNA testing of the hairs was not possible. As technology has advanced Mitochondrial DNA testing (“mtDNA”) has become available to test hair for a match to a certain suspect. MtDNA allows for "analysis of DNA found in hair shafts (as opposed to roots or follicles). This type of testing is good because it can be used "in even smaller or more degraded samples than STRs, . . . the relevant DNA sequences are moderately short (approximately 1, 200 bases or less), there are thousands of copies per cell, and they can be amplified." However, there are some downsides to this type of testing such as it takes much longer; it is not as powerful a tool for coming to an identification, and it cannot distinguish among people who are related maternally.
However, if Grayson's trial had been held at the present time he would have had the ability to test the hair evidence with mtDNA and possibly clear himself of this crime. Because the hairs in his case were too small even for an individual comparison with his hair, no potential exculpatory information was gained from an analysis of those hairs. Instead, the testimony by Burrows that this hair was consistent with Grayson and Kennedy’s, but not the victims, raised the same problem as that raised by the blood evidence -- that because hair consistent with Grayson's was found at the scene he must be the perpetrator. Burrows never discussed that this hair was consistent with all African-American hair or how many people might have hair like this in the overall population.
Similarly, at the present time “microscopic [hair] analysis, standing alone, is no longer accepted as a valid basis for identification” of a suspect. Instead, the type of analysis done in Grayson's case must be accompanied by DNA to be admissible on identification. Had Grayson been able to avail himself of current methods for testing hair evidence, he would have had a better chance of proving his innocence. However, the tests would not have been able to distinguish between Grayson's DNA and Rodney's so further information might have been needed.
II. Alabama was a De Facto Frye state at the Time of Grayson’s Trial, but Now Follows the Daubert Test with Regard to DNA evidence.
At the time of Grayson’s trial Alabama was a de facto Frye State. The State did not formally adopt that standard until 1984. But, the courts used the terms ‘generally accepted’ to formulate their scientific evidence rulings. Because Alabama did not become a formal Frye state until 1984, it appears that it was not general practice to hold a Frye hearing on novel scientific evidence at the time of Grayson’s trial. It does not appear from the trial transcripts that any objections were made at the time to the admission of the blood or hair evidence. Thus, the judge did not need to make a determination on the admissibility of the hair comparisons or the blood grouping evidence.
While being given a Frye hearing might not have helped Grayson with regard to this evidence, at least he would have been able to advance arguments and put up a fight in front of a judicial authority. During a Frye hearing Grayson would have been able to argue against the general acceptance of the particular blood grouping tests used by Noppinger and the particular type of hair comparison done by Burrows. While Alabama may not have been receptive to this claim, at least Grayson would have had the chance to make these arguments.
A. In 1994 Alabama switched to Daubert as the standard of admissibility for DNA evidence.
In 1993 the federal courts switched to the Daubert standard which required a more rigorous review of the scientific evidence in issue. Instead of determining whether the particular science at issue is generally accepted, the court has to decide whether it is reliable by looking to a number of factors. This standard "is widely viewed as making it more difficult to admit expert testimony than Frye." While some states have adopted the Daubert test, or at least a Daubert-like test, Alabama continues to maintain a Frye test for novel scientific evidence with one exception.
In 1994 Alabama adopted a statute to deal with the admissibility of DNA evidence. This statute states that expert testimony and evidence relating to DNA used for identification purposes "shall be admissible and accepted as evidence in all cases" provided the judge is “satisfied that the expert testimony or evidence meets the criteria for admissibility as set forth by” Daubert. This statute overruled the standard of admissibility with respect to DNA evidence that had been established in the Alabama case of Ex parte Perry.
This evolution of admissibility standards regarding DNA evidence in Alabama would likely have helped Grayson had his trial gone on today. Although whoever wanted to introduce the DNA evidence would have had to show that it met the Daubert standard, this evolution would likely have meant that the blood grouping tests would be replaced by DNA tests.
i. Physical Comparisons Are Removed from the Frye Standard and Instead Governed by Alabama Rule of Evidence 702.
Although Alabama follows Frye and Daubert for certain pieces of scientific evidence, other types of evidence that could be seen as scientific or forensic evidence are exempted from both of these standards. For example, physical comparisons are removed from the Frye test – as not being novel scientific evidence. Instead physical comparisons – such as those done on hair -fall under Alabama’s equivalent of Federal Rule of Evidence 402. Alabama Rule of Evidence 702 states "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" it is admissible.
This is a very low bar compared even to the general acceptance test of Frye. Because the judge need only determine the testimony will be helpful to the trier of fact, he need not concern himself with the reliability, veracity, or the method used in the testimony. Instead, the judge can choose to admit the testimony simply because he finds it will help the jury. Through this method “courts perhaps avoid the problems associated with applying the [Frye] standard, but risk admitting ‘junk science’ into evidence.”
Although the hair comparison in Grayson's case was done by someone who worked in the Department of Forensics lab, his testimony was deemed non- scientific. Burrow’s testimony likely sounded scientific to the jury, because he discussed the use of a microscope to examine the hairs for particular factors and was able to match these factors to a particular race. However, there was and would still be very little regulation on the admission of this testimony in Alabama. This risks admitting testimony that sounds scientific but is not regulated or controlled by the scientific field or the courts. This would still have caused a problem for Grayson if this case were tried today.
B. An Access to DNA Statute Currently Being Considered in the Alabama Legislature Could Have Helped Grayson By Allowing Him Access to His DNA Post-conviction.
Grayson did request access to the DNA evidence from the crime scene while he was in jail. He asked to perform STR DNA testing on it, but the state and the federal courts denied his request. An informal request to the state for this evidence and a motion in the Circuit Court of Shelby County Alabama for this evidence were also denied. At the time Grayson made his request for DNA, Alabama did not have an access to DNA statute to govern these requests. Currently, Alabama is in the process of working on an access to DNA statute. The bill was considered in the House as HB 146 and is currently being considered in the Senate as SB 170.
This statute would give the defendant a discovery tool to access DNA evidence from the crime scene in certain circumstances. As Senate Bill 170 currently stands it requires the defendant to petition for access to this evidence. The petition must contain an assertion of actual innocence under oath, a description of the evidence that was obtained, a prima facie showing that identity was an issue in the trial, and that if DNA tests were exculpatory, they would exonerate the defendant. The court reviewing the petition should grant access to the DNA evidence if there is at least a "reasonable possibility that the testing will produce exculpatory evidence that could exonerate the applicant of the offense for which the applicant was convicted." After this the defendant can make a motion to the Alabama Circuit Court who will then determine if the new evidence would have made a difference in his trial.
Had Grayson had access to this type of statute at the time of his request for his DNA evidence, he would likely have been better off. However, it is still possible Alabama would have denied his request to access his DNA. Grayson was not a strong advocate for himself and he never proclaimed his innocence, but simply maintained he did not know what happened that night because he could not remember it. Because of this a judge might find Grayson's assertion of innocence was not enough, because it was not consistent throughout his incarceration. Some states require a prisoner consistently assert his innocence to be able to access DNA under this type of statute. If Alabama followed this route, despite the language of the statute, it is possible a judge might have found Grayson still did not qualify to access his DNA evidence.
It is also possible an Alabama judge would find that Grayson's motion did not make a prima facie showing that exculpatory results would exonerate Grayson. Because the DNA evidence included semen, Grayson could argue that if this was not his semen he did not commit the rape. However, this would not exonerate him of the murder, but simply of the crime that was an aggravating factor. Alabama might still try to convict him of the murder because of his confessions even if the DNA in the semen did not match.
There are still procedures that would make it very difficult for Grayson to obtain access to the DNA even with this statute in place. However, had Grayson been able to take advantage of the safeguards in the statute, it is possible he would have proclaimed his innocence; and perhaps an Alabama judge would have found the DNA evidence could exonerate him. At least Grayson would have had a set procedure and specific prongs to meet under this statute to request his DNA which might have made the decision to withhold less arbitrary.
III. In Addition To the Scientific and Legal Problems with Grayson's Trial There Were Situational Problems As Well -- Including a Lack of Investigation.
There was a lack of investigation leading up to Grayson's trial that contributes to skepticism surrounding his guilt. Four men were drinking together on the night of the crime directly before the crime was said to have occurred. Two of them were implicated in the murder, and the other two should have been investigated but never were. Instead, Allen Naugher and Rodney Grayson were never even questioned by the police. At trial testimony that Grayson's wallet had contained Mrs. Orr's wedding rings was introduced to prove his involvement. Had the police investigated the two extra men present that night, they would have learned that Victor Kennedy borrowed Grayson's jacket the night of the crime and thus had Grayson's wallet.
Similarly, had police done an investigation of Naugher and Rodney, they would have learned that Grayson was too drunk to go home from Kennedy's house by about 11 PM. The police would have also learned that by that time Grayson could not move by himself, and Kennedy and Naugher picked him up off the floor and put him on the couch. After that Grayson passed out cold. The claim at trial was that Grayson and Kennedy walked over to Mrs. Orr's shortly after midnight to commit the crime; but had the police spoken with Naugher, they would have known that this could not have been possible. By that time Grayson was out cold, unable to move and Kennedy had his jacket.
People in Montevallo who knew Grayson, Rodney, Kennedy and Naugher expressed no surprise that Kennedy was involved but were very surprised by Grayson's alleged involvement. Grayson's mother and sister always questioned his guilt. This was especially true for his mother, because after Grayson heard of the crime he said to his mother "who would have done this to such a nice lady."
There is also thought in the community that Yak acted as the town snitch in this case and did so because he was likely involved in the crime himself. There was some evidence that Yak had been involved in shady dealings before. Yak later admitted that he testified about the shirt to help the police in Grayson's case, and that there was animosity between his family and Grayson's. A lack of investigation surrounding Yak's involvement denied Grayson exculpatory evidence.
Similarly, the fact that Grayson's brother was never investigated for the murder also likely deprived Grayson of exculpatory evidence. At the time of the crime Rodney and Grayson both lived in the room where the sock with a Caucasian hair on it was found. The sock was found in a pile of clothes in the corner of the room. Grayson's family saw his brother was acting suspicious during the trial and after conviction. During the 24 years that Grayson was on death row, his brother never once contacted him. Later in 1990, Grayson's brother was convicted of rape in the second degree involving a twelve year old victim. Although, this information should normally not be used generically to establish someone's guilt, the additional circumstances and the young age of the victim may make this conviction more probative here. The drastic ages of the two victims here may show that Rodney has a distinct problem of desiring victims at the outer age fringes, and may show that it is more likely that he committed the murder of Mrs. Orr instead of Grayson. Finally, on the day of Grayson's execution Rodney told their sister Betty, "I did a very bad thing."
In addition to the suspicions surrounding Yak and Rodney, happenings on the day of Kennedy's execution suggest that further investigation into the murder of Mrs. Orr would likely have exculpated Grayson of the crime. Before his execution -even while on death row -when questioned about Mrs. Orr's murder Kennedy would not talk. However, in the hours before he was scheduled to die, he spoke with a chaplain who later came to Grayson's cell. The chaplain came to Grayson's cell to tell him what Kennedy had said before he was executed. Kennedy had told the chaplain to tell Grayson "I'm sorry."
All of this suggests further investigation was needed before Grayson's trial and after it. The failure to investigate deprived Grayson of possibly exculpatory resources and deprived the jury of the whole story. Grayson's attorney-a court appointed divorce lawyer-was given only $500 to try the entire case. He brought in no experts, did no personal investigation into the circumstances of the murder, and did not sufficiently cross examine the prosecution witnesses. Grayson needed the evidence from an investigation, but through its processes and appointments Alabama denied him this evidence.
After two decades on death row Darrell Grayson was executed by lethal injection on July 26, 2007. He was 46 years old. Due to a lack of investigation, lax evidentiary rules and basic science Alabama executed Grayson for a crime he may not have committed. Alabama executed Grayson even though they had evidence in their possession that could have been used for DNA testing to conclusively determine Grayson's guilt or innocence. This same blood, hair and semen evidence had been introduced at trial, but DNA testing was then unavailable.
Because of the blood and hair evidence allowed in at trial and the lack of a set scientific evidence standard until 1984, the science on which Grayson’s conviction rested was less than reliable. The blood evidence allowed in at trial made it seem more likely that Grayson committed the murder than it should have. The hair comparison did the same. Had the trial occurred today Grayson could have taken advantage of mtDNA testing on the hair. Grayson could have taken advantage of updated DNA testing on the blood and semen evidence. STR testing could have established a conclusive non-match based on the samples preserved from the case.
Had STR been available it is much more likely that the true perpetrator of this crime would have been identified, and Grayson would not have served 24 years in jail or have been executed for a crime he did not commit. If Grayson had been able to take advantage of STR testing, it is likely the results would have shown that the perpetrators of this crime were not Kennedy and Grayson, but Kennedy and Rodney. However, because of the lack of investigation of the crime before and during trial Grayson never had the opportunity to show this possibility to the jury. The statements made by this individual after trial suggest it is much more likely that he committed the crime instead of Grayson, but escaped questioning.
Alabama should have granted Grayson's requests for his DNA evidence in 2002, because the science available when Grayson made his request was so much better than the science used during his trial. The probative value of STR DNA tests is much higher than simply admitting evidence about blood typing as was done in Grayson's trial. Similarly, the hair evidence admitted at Grayson's trial was very primitive compared to the mtDNA tests that could be performed on the hairs now. Although it depends on the condition of the samples, STR DNA testing on the blood and semen evidence and mtDNA tests on the hair had the ability to exonerate Grayson once and for all. Alabama should keep up with the advances in scientific testing.
Similarly, Alabama should enact SB 170, because it will allow at least some prisoners who qualify under the standards, to receive access to their DNA for testing and possible exoneration. The Alabama Legislature should remove the requirement that the defendant proclaim actual innocence, because people like Darrell Grayson should have access to their DNA too. There are many reasons that might prompt a prisoner to either plead guilty, or proclaim his guilt during his incarceration. This should not preclude the prisoner from making a DNA request, because it does not necessarily make his claim of innocence any less valid.
Alabama should adopt Daubert as their standard for the admission of all scientific evidence not just DNA. This standard will make it more difficult for junk science to be admitted in the Alabama courts. This standard should be applied to all scientific evidence including physical comparisons to ensure that Alabama has a high enough bar for the admission of any evidence that can be seen as scientific by the jury. This will give trial judges a baseline when they are examining the admissibility of scientific evidence.
Darrell Grayson went to his grave through the hands of the State of Alabama. Because of the flaws in the science in this case, and the refusal of Alabama officials to turn over DNA samples later in the case, justice was not done for Darrell Grayson and justice may not have been done for Mrs. Orr. Alabama refused to find the real murderer, rapist and burglar when they failed to investigate the other men with Grayson that night. The updated science could have spoken in this case, but it was silenced. If Alabama preserves the DNA evidence from Grayson’s case, perhaps justice will one day be done, but either way it will still be too late to save Darrell Grayson.