Phony report destroys sex case

Oakland Tribune, Dec 18, 2007 by Leslie Griffy

There was one major problem with the Santa Clara County crime lab report that implicated a San Jose man of sexual assault: It wasn't true.

The document was a fake, created by a San Jose police detective. The crime lab analyst who purportedly prepared the document doesn't exist. The number used to identify it was false.

Even so, detective Matthew Christian testified as though the phony report were authentic.

The case unraveled when the defense attorney sought the resume of the lab analyst, only to learn there was no such person. Christian then remembered that he had concocted the report in an attempt to trick the defendant, Michael Kerkeles, 54, into admitting that he had forced a developmentally disabled neighbor into sexual acts. It was an acceptable tactic. But Christian said that by the time he was called to testify, more than a year later, he had forgotten the ruse.

The case, which attracted no public attention when it was dismissed last December, has raised concerns both about how the charges were handled and about how police and prosecutors responded when the fabrication and false testimony was discovered.

San Jose police Capt. Andy Galea said last week that after this incident, the department had banned detectives from using ruse crime lab reports when questioning suspects. He declined to say what discipline, if any, Christian received.

Prosecutors said they had referred the case to an internal committee that reviews cases involving allegations of potentialcriminal conduct by police officers. That committee, headed by Assistant District Attorney David Tomkins, concluded that the matter amounted to an honest mistake by the officer, Chief Assistant District Attorney Marc Buller said last week.

"We all make mistakes," Buller said.

Buller also expressed confidence that the trial prosecutor, Deputy District Attorney Jaime Stringfield, had done nothing wrong in eliciting testimony about the phony report while a contradictory lab report sat in her file.

Before the ruse was discovered, Christian and Stringfield ignored several signs -- beyond the fact that no one named Rebecca Roberts worked in the county lab -- that could have warned them the report was a fake.

The phony report claimed the crime lab had found semen on a blanket in Kerkeles' garage -- on the same day the blanket was seized. The report also claimed the DNA had been matched to Kerkeles. But obtaining DNA test results normally takes at least several days. In addition, Stringfield had in her file an authentic report from crime lab examiner Nancy Marte that concluded semen could not be found on the blanket.

Outside experts expressed concerns about the conduct of law enforcement officials in the case.

Stringfield said in an interview last week that she had paid scant attention to the real report, because it did not help her case. During that interview, she blamed Kerkeles' defense attorney for not exposing the discrepancy between the two reports, both of which had been provided to the defense.

The fabricated report became key evidence against Kerkeles, because Stringfield failed at two different preliminary hearing dates to establish that the young woman at the center of the case was a competent witness -- unable to convince the court that she knew the difference between a lie and the truth.

After the ruse was uncovered, the charges were dismissed with the agreement of the prosecutors. Kerkeles, who has no record of sex abuse charges, insisted last week in an e-mail interview conducted through his civil attorney Tim McMahon that he is innocent and that the incident "tore my life apart." But Stringfield said in court documents that she still believes Kerkeles is guilty; last month, she helped persuade Superior Court Judge Edward Lee to deny Kerkeles' request to be declared innocent.

The case dates to March 2005, when the mother of a 22-year-old mentally disabled woman saw her daughter running from the direction of Kerkeles' house down the street. (MediaNews is withholding the name of the woman, who has the mental capacity of a 7- or 8-year- old.)

Later, the woman said Kerkeles had "touched her all over" on a blanket inside his garage.

Kerkeles was charged in April, largely based on the word of the woman and her mother. He was quickly released from custody on bail.

The accuser told widely contradictory stories to the officers and a nurse about whether she had been to Kerkeles' house, and whether he had sexually attacked her. The woman told officers that a teen who previously lived nearby also had been raped at the house, an allegation the girl denied.

Kerkeles said he never touched the woman.

On May 4, 2005, police seized a blanket from Kerkeles' garage. That day, Christian prepared a report that said testing proved that semen identified as Kerkeles' was found on the blanket.

Christian later would explain he prepared the report to use in interviewing Kerkeles -- the law permits police to lie during questioning, as long as their techniques are not coercive.

Christian did not return calls from MediaNews. But Galea, the San Jose police captain, said fake reports, while legal, were rare. In this case, Kerkeles asked for an attorney, so the interview with Christian never went forward.