Being Wrong - Kathryn Schulz [118]
MCGRATH: The semen could have come from multiple different sources.
NEUFELD: Why don’t you tell me what those multiple sources are.
MCGRATH: It’s potentially possible that [the victim] was sexually active with somebody else.
The victim, you will recall, was eight years old.
MCGRATH: [Or] it’s possible that her sister was sexually active with somebody else.
The victim’s sister was eleven at the time of the rape.
MCGRATH: It’s possible that a third person could have been in the room. It’s possible. It’s possible that the father could have left that stain in a myriad of different ways.
NEUFELD: What other different ways?
MCGRATH: He could have masturbated in that room in those underwear…. The father and the mother could have had sex in that room in that bed, or somehow transferred a stain to those underwear…. [The father] could have had a wet dream; could have been sleeping in that bed; he could have had an incestual relationship with one of the daughters.
So we have four possibilities: the eight-year-old was sexually active; her eleven-year-old sister was sexually active while wearing her sister’s underpants; a third party was in the room (even though the victim had testified to a single intruder); or the father had deposited the semen in one perverse way or another. Neufeld, clearly somewhat nonplussed, concedes that all these scenarios are hypothetically possible—but, he says:
NEUFELD: You have no basis to believe that happened here, do you?
MCGRATH: Other than I was a prosecutor for eighteen years, and I’ve been in the criminal justice system for twenty-five years. I think it’s a very definite possibility.
NEUFELD: That’s the sole source of it?
MCGRATH: Which is a pretty significant source.
Moving from the biological evidence to the eyewitness testimony, Neufeld and the attorney general discuss the child’s identification of her assailant:
MCGRATH: I thought it was quite significant identification testimony.
NEUFELD: You thought that when a victim says on direct examination that, “I was 60 to 65 percent sure,” and then when asked by the prosecutor, “Putting aside the percentages, how sure are you that it’s Jimmy Ray Bromgard?,” and she says, “Not very sure,” you consider that to be very powerful ID testimony?
MCGRATH: Yes.
I could go on—the deposition runs to 249 pages, most of them sounding much like this—but I won’t. If McGrath’s testimony weren’t so horrifying—if the rape of a child, the reputation of her father, and the freedom of an innocent man weren’t on the line—it would verge on the comedic, sheerly by virtue of its absurdity. If there’s any saving grace to this kind of extreme denial, it is that, as Neufeld put it, “when other people look at this stuff, they go, ‘oh my God, this guy is crazy.’” And they did. Jimmy Ray Bromgard settled his case against the state of Montana for $3.5 million. Michael McGrath moved, unsuccessfully, to have the deposition sealed from the public.
What’s scariest about this story is that it isn’t particularly unusual. Neufeld told me countless others much like it. There was the crime-lab worker in a rape and murder case who continued to think that Neufeld’s client was guilty, even though the DNA had excluded him and implicated another man. “I said, ‘What do you mean?’” Neufeld asked. “‘What scientific evidence is there that he did it? What non-scientific evidence is there that he did it?’ And she said, ‘I know he did it. When I testified at his trial, I saw murder in his eyes.’” Or take the story of Calvin Johnson, an African-American honors student and star athlete, arrested in 1983 for raping a white woman, a crime he did not commit. When conventional (not genetic) analysis of the pubic hairs recovered from the crime scene showed that they didn’t match Johnson’s hair, the district attorney in the case proposed that they came not from the perpetrator but from a public restroom or the laundromat where the victim washed her sheets and clothes. That was the moment, Johnson later recalled, when he realized, “He doesn’t care about me,