Discredited forensics may upend rulings

By Meg Laughlin, Times Staff Writer
In print: Saturday, December 13, 2008

http://www.tampabay.com/news/courts/criminal/article936409.ece

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Gainesville prosecutor Geoffrey Fleck has asked that Ates’ murder conviction be overturned.

In 1998, Panhandle high school teacher Jimmy Ates was convicted of murder for shooting his wife seven times in the couple's Okaloosa County home. There were conflicting witness accounts and a time line with wiggle room. But the testimony of an FBI expert was indisputable: The bullets that murdered Norma Jean Ates in the couple's bedroom came from Jimmy Ates' box of bullets.

Prosecutor Rod Smith hammered the point home to jurors: "Of all the millions and billions of bullets that are made by any given company in any given time frame, the bullets that killed Norma Jean were manufactured from the same batch that were found in the box in the back room."

But now, a decade later, another prosecutor has taken an unprecedented step and asked that the sentence be invalidated because "the fairness of the defendant's trial was severely jeopardized." The move could affect murder cases around the country, including a death row appeal in St. Petersburg.

The turnaround for Gainesville prosecutor Geoffrey Fleck came in late May, after he received a letter from the head of the FBI lab. The letter said that the FBI expert who testified at the Ates trial "did not provide sufficient information to the jury to allow them to understand how bullets are made," which meant the jury "could have misunderstood the probative value of the evidence."

The letter to the Gainesville State Attorney's Office was among hundreds of letters the FBI sent out in the past year in support of what FBI agents said in November 2007 on 60 Minutes — that FBI bullet lead analysis is now a "discredited forensic tool" because the distribution of metal alloys in a bullet is not linked to when and where the bullet was made.

"We are going the entire distance to ensure that justice is served," FBI assistant director John Miller said on 60 Minutes.

But Fleck is the first prosecutor to step forward and ask that a sentence be overturned because of the "FBI junk science."

This week, defense attorney Barry Scheck, director of the National Innocence Project, called Fleck's request "exemplary" and said he hoped it would be "the example other prosecutors would follow."

"Getting the murder convictions based on faulty ballistics overturned is a slow process, but it's working because of the FBI's commitment," said Scheck.

Last year in St. Petersburg, appellate attorney Martin McClain used the 60 Minutes information to ask Pinellas Circuit Judge Mark Shames to vacate the conviction of death row inmate Derrick Smith, convicted of killing cabdriver Jeffrey Songer in 1983. But prosecutors have argued against giving Smith a new trial, and, so far, the judge has agreed with them.

But several weeks ago, McClain made a new request asking the judge to reconsider "in light of Ates" saying that, as in the Ates case, the primary evidence — the bullet link to the defendant — was "fundamentally flawed" causing "the fairness of (Smith's) trial to be fundamentally jeopardized."

McClain is waiting for a decision.

Meanwhile, on Wednesday, Ates will attend a hearing in Okaloosa County, where, according to lawyers for the Innocence Project of Florida and Fleck, he is expected to be released on bail by the judge while prosecutors decide if he should be retried.

Louise Kortaba, Norma Jean Ates' mother, said for a few years after her daughter was shot in 1991 she thought her son-in-law was innocent. But she eventually changed her mind and "felt he was guilty." But now, she says, she's "not clear on what happened."

"If I've been wrong, I hope God and Jimmy will forgive me," said Kortaba.

Prosecutor Rod Smith, who became a state senator and is now a civil lawyer in Gainesville, has also rethought the conviction of Jimmy Ates.

"If we'd known then what we know now, we obviously wouldn't have put that FBI evidence in," said Smith. "But now we know what we know and the state has to meet its obligation."

In his motion asking the judge to vacate the sentence, Fleck also said that police investigators withheld suspicious fingerprint evidence in the house from the prosecutor and the defense.

"The jury was misled about important evidence at trial," he concluded.

Fleck concedes that his position as the first prosecutor in the country to ask that a murder sentence be vacated because of faulty FBI bullet testimony is not popular with everyone. But he says he's thankful his office is supporting him.

"While successful prosecutions are nice, justice is better," he said.

Contact Meg Laughlin at mlaughlin@sptimes.com.