The work of the Ramsey County medical examiner has come under scrutiny again.
Attorneys for Alfonso Rodriguez, Jr., a Minnesota man awaiting execution for one of the region's most notorious kidnappings, say Ramsey County chief medical examiner Dr. Michael McGee mistook animal bites for stab wounds and used "junk science" to convince jurors to impose the death penalty.
The criticism is the latest challenge to the credibility of Dr. McGee, a forensic pathologist who has served as Ramsey County's chief medical examiner since 1985. Forensic experts contacted independently by MPR News are raising similar questions about McGee's reliance on out-of-date lab testing to look for evidence of sexual assault in the Rodriguez case and in other murder cases dating back nearly three decades.
A motion filed by Rodriguez's defense attorneys in federal court this week alleges the jury was swayed by false testimony from McGee about the death of Dru Sjodin, a 22-year-old college student who was abducted from a shopping mall parking lot in Grand Forks, N.D. in November 2003 and whose body was found five months later in a ravine near Crookston, Minn.
"In large part, this is a case about junk science and false forensics," said the motion, written by attorney Joseph Marguiles, a Northwestern University law professor who has represented several death row inmates. "The centerpiece of the government's case was the horrific testimony of Michael McGee, the Ramsey County Medical Examiner."
McGee did not respond to requests for comment. He has previously declined to discuss other cases in which his work has been criticized by other medical examiners. The Ramsey County manager who negotiates McGee's contract and acts as his only supervisor has declined to review specific cases in which McGee is alleged to have erred.
The Ramsey County Attorney's Office, which relies on McGee to testify at its murder trials, recently initiated a separate review of a Douglas County case in which McGee was found by a judge to have given false or incorrect testimony.
"It should come as no surprise that Dr. McGee testified falsely in this case," the motion filed by Rodriguez's attorneys said. "He has often performed shoddy work and drawn questionable conclusions for the benefit of the prosecution. His reputation is well known and richly deserved ..."
The motion refers to three other murder cases in which McGee's testimony was disputed. They include the Douglas County trial of Michael Hansen for the murder of his infant daughter. In July, Douglas County Judge Peter Irvine found that McGee gave false or incorrect testimony that helped jurors convict Hansen in 2006. Irvine overturned the conviction and the county attorney later dropped all charges against Hansen, who was represented by the Innocence Project of Minnesota in his fight to clear his name.
The motion seeks to have the death penalty sentence set aside and asks for Rodriguez to be granted a new trial based on concerns about the medical examiner's work, ineffective counsel at the original trial, and evidence that Rodriguez is "mentally retarded" and was insane at the time of the murder. The motion does not argue that Rodriguez did not kill Sjodin. Rodriguez, 58, is on death row at a federal prison in Terre Haute, Ind.
Federal prosecutors could not be immediately reached for comment.
McGee's testimony in the Rodriguez trial in 2006 garnered headlines for its captivating description of Sjodin's final hours. McGee told jurors that Sjodin could have been sexually assaulted up to 36 hours before she died — a finding that helped prosecutors argue that the crime was heinous enough to warrant the death penalty.
As part of his testimony, McGee stood next to a drawing board and used a red marker to draw what he described as the "slash marks" on Sjodin's neck. McGee said the wounds were the most likely cause of death and that evidence suggests Sjodin was left to die face down in the ravine where she was found.
Sjodin's mother, Linda Walker, said only two people know what happened and that she believes the medical examiner's explanation.
"One is dead, my daughter. And one's alive and living a very nice life without having to worry about a house payment, without having to worry about a meal, without having to worry about paying for medical, health or any of that," she said.
"Those are the only two people, and God. So you know this can be debated forever, forever and a day, but in my heart of hearts, I truly, truly believe that Dru was given the best defense by an incredible team of people that pored their heart and soul in to ensure that they found out as much as they could to ensure that Alfonso Rodriguez Jr. would never walk again."
THE TEST IN QUESTION
However, defense attorneys, along with leading state and national forensic experts contacted by MPR News, are challenging McGee's dramatic testimony.
Four forensic pathologists who reviewed the case at the request of the defense found there was no forensic evidence that Sjodin was stabbed. The pathologists, who include retired Hennepin County medical examiner Dr. Garry Peterson, said McGee mistook damage caused by animals and decomposition for stab wounds.
The pathologists found that it's more likely that Sjodin was suffocated to death. They note that Sjodin's body was found with a cord and remnants of a plastic bag stretched around her neck. McGee told jurors it was possible that Sjodin suffocated, but that he believed it was more likely that she died from the stab wounds he found on her neck.
The defense and experts in forensic science and pathology also allege that McGee improperly relied on a laboratory test that was outdated to determine that Sjodin was sexually assaulted. McGee's use of the test in 2004 did not follow any standard forensic practices, they said. Separate lab tests performed at the state's Bureau of Criminal Apprehension crime lab did not find any DNA, sperm, or semen suggestive of a sexual assault on Sjodin's body.
National experts said they've never heard of a similar use of the test in recent years. The state's crime lab, run by the Bureau of Criminal Apprehension, does not rely on the test as evidence of sexual assault, nor do any of the other regional medical examiner's offices in the state, MPR News has confirmed.
The Ramsey County Attorney's Office, in the same county in which McGee has served as chief medical examiner for 26 years, also told MPR News in August that the test cannot be used to determine a time frame in which a sexual assault occurred.
The test looks for evidence of an enzyme, called acid phosphatase, produced in high quantities by the male prostate. A similar test is used to detect prostate cancer. Crime labs relied on the acid phosphatase test as evidence in sexual assault cases in the 1970s and 1980s before DNA testing was available. In the past two decades, state and national experts said, DNA testing has largely replaced the test, although it can still be helpful to determine whether a sample might need to be tested for DNA.
"This is an older test that we used to use ... and as far as I know, it's not used in a lot of crime labs anymore," said Jill Spriggs, president of the American Society of Crime Lab Directors. When McGee used the test to bolster his claims at the Rodriguez trial, the test had already been out of favor for more than a decade, Spriggs said.
At the Bureau of Criminal Apprehension crime lab in St. Paul, forensic scientist supervisor Kristine Deters said the lab does not use the test anymore. Instead, they use a more precise test to decide if DNA testing is needed, she said.
"If we get a positive result, it doesn't say for sure that it's seminal fluid, but it gives us enough information to decide whether to do another test," Deters said.
Pathologists cautioned that the acid phosphatase test is not reliable because the enzyme it detects can also be found in other bodily fluids, including vaginal fluids and fluids produced by a decomposing body.
Dr. George Sensabaugh, a nationally-recognized expert in acid phosphatase who teaches at the University of California-Berkeley, raised concerns about McGee's interpretation of the test at the original Rodriguez trial. Sensabaugh testified for the defense via video.
He told MPR News that he's aware of only one peer-reviewed study of acid phosphatase in dead individuals. McGee, he said, did not consider whether the test results from dead people at a morgue would be significantly different than those from living survivors of sexual assault at an emergency room.
"You're extrapolating from living victims to dead," Sensabaugh said, "And we don't really know enough about what goes on in the vagina after death to know whether that's a legitimate extrapolation."
McGee used the acid phosphatase test in another murder investigation in Minnesota, MPR News has found. The case was the death of Linda Jensen, a woman who was murdered in her Big Lake home in 1992. McGee was assigned to perform the autopsy. He was called to testify when prosecutors filed charges in 2000 against Jensen's neighbor, Kent Jones.
Jones said he had been having an affair with Jensen. During an interview with MPR News at Stillwater prison on Friday, Jones acknowledged that a DNA test showed that he had sex with Jensen some time before her death.
However, he said McGee's testimony confused jurors and made it seem impossible for someone else to have killed Jensen between the time they had sex and the time she died.
McGee told jurors that the acid phosphatase levels were "elevated" and suggested that Jensen died while being sexually assaulted, although he acknowledged he could not determine the exact timing. Jensen's body was found naked with a knife sticking out of her chest.
Jones was convicted, but the court granted him a new trial in 2006 in which he was again found guilty.
Jones has since requested representation by the Innocence Project of Minnesota, the same group that represented Michael Hansen in his successful effort to refute the medical examiner's testimony. Innocence Project attorney Bridget Sabo confirmed that the Innocence Project is investigating Jones' case.
Jones said he's angry at McGee for his handling of the case. He notes that McGee declined to revise his interpretation of the acid phosphatase test when he was presented with scientific articles that refuted it.
"I believe that Dr. McGee absolutely knew he was wrong," Jones said. "If he didn't know at the first trial, which I highly doubt, he obviously knew at the second trial because we made a very detailed record, you know, it's all in the transcripts. So there's no way he could not have known, so yes, I believe he lied through his teeth."
A PEER FINDS FAULT
Criticism has been directed at McGee's work by his fellow medical examiners, in addition to people he helped convict.
Dakota County medical examiner Dr. Lindsey Thomas was involved in the Hansen and Jones cases and disagreed with McGee's findings. McGee made mistakes in those cases, she said, but Thomas said that's not the issue. Most medical examiners make mistakes from time to time, she said.
"I think that's what's really disturbing is when someone has a chance to correct a mistake and they don't, it just, it's very worrisome," Thomas said.
No one oversees McGee's work. He runs a private company that has a nearly $700,000 contract with Ramsey County to provide medical examiner services for Ramsey and Washington counties. His company also has contracts with at least 13 other counties across the state, and McGee works for other counties on a case-by-case basis. McGee's contract with Ramsey County covers his salary and the salaries of his three employees, only one of whom is a board-certified forensic pathologist.
Ramsey County Attorney John Choi recently asked retired Ramsey County prosecutor Jeanne Schleh to review the Hansen case. Choi's spokesman Paul Gustafson said the county attorney has not yet read the motion and will not comment until he has reviewed it.
The Ramsey County manager's office has previously completed a one-day administrative review of the medical examiner's office, in response to an MPR News report in September. That review did not look at individual cases. It found McGee was in compliance with his contract and state law.