After having Davy, a California State University graduate, list her qualifications under direct testimony, Bob Lavender asked Camp if he had any objection to qualifying Davy as an expert in this trial.
Tom Camp said he did not.
There you have it: qualification number 451.
Davy had run the tests to determine if any of the weapons found inside Tracy’s or Doug’s house were a match to the bullet fragment pulled out of Doug’s skull. Because the bullet had been so badly deformed—photos show it was significantly distorted—while traveling through Doug’s skull and lodging itself inside his head, definitive proof—more commonly known as ballistics—was going to be controversial, at the least.
Generally, a ballistics expert in Davy’s shoes studies what are candy cane-like, raised striations inside the barrel of a weapon and compares those markings to any striations or markings left on a bullet or bullet fragment provided to him or her for comparison. A fingerprint-worthy match can be what some ballistics experts rely on when these types of tests are conclusive: the bullet was either fired from the weapon or it wasn’t.
Davy’s job included test-firing weapons, collecting those test-fired bullets and looking at cartridge cases (casings: the empty shell left behind) under a microscope to determine if there are any similarities. She might also examine any unfired bullet ammunition found at Tracy’s or Doug’s to determine if it was the same ammunition used in the crime. This type of forensic work is all about consistency in the samples as compared to the barrels of weapons—in addition to consistency in the projectile evidence and any bullets or unfired ammunition recovered. Test firing gives the examiner a base on which to judge those comparisons. Bullets and casings from the same weapon should match up to the barrels they were fired from. This is sometimes called “ballistics fingerprinting,” a science the FBI and most law enforcement agencies throughout the world have relied on for decades to help convict defendants. However, in one study by a group of scientific experts who looked at 2,500 cases the FBI used ballistics in, there was a problem. The National Research Council panel, after a year-long study of those cases, found the FBI’s science was fairly “sound,” but that “examiners had sometimes overstated its reliability in court testimony … ‘The bottom line,’ said Barry Scheck, (then) president-elect of the National Association of Criminal Defense Lawyers, ‘is that FBI experts have been going into courts for years and definitively saying that particular bullets found at a crime scene came from a certain box of ammunition or were manufactured on a certain date, and the researchers are now saying that is wrong. These cases have to be re-examined.’ ”[1]
So, although ballistics was purported to be an ironclad forensic science, which many considered either black or white, add a human factor into it (a gray area, per se), and you have a science fated to sometimes fall apart.
Bob Lavender handed Davy State’s Exhibit 42, a Remington .22 rifle. There was a package attached to it with a test-fired cartridge (casing) and bullets Davy had test fired herself with that particular weapon for comparison purposes. Davy said GBI SA Terry Cooper had brought the weapon to her lab.
State’s Exhibit 40 was then put in front of Davy. “A box,” Davy explained, describing the exhibit, “that contains a .22 caliber lead bullet.”
Lavender asked Davy if she had made a comparison between 40 (the bullet) and 42 (the Remington).
“Yes, sir.”
“What was the result of that comparison?”
“That the bullet, State’s Exhibit 40, was not fired from this rifle, State’s Exhibit 42.”
Thus, within that statement, Davy was saying under oath with an emphatic hell yes that she was able to use the bullet—however deformed—taken from Doug’s skull in her testing.
State’s Exhibit 21 was put into Davy’s hands next—a Stevens .22 rifle with no serial number. Davy explained that the first time she saw this particular weapon happened to be when Amory Scoggins turned it over to the crime lab on April 25, 2001.
Ten months after the murder.
Exhibit 43 was next: “Numerous .22 cartridge cases and .22 caliber bullets”—all test-fired evidence Davy had produced herself in the lab from the Stevens .22 rifle.
Asked about this evidence, Davy’s testimony came across a bit confusing: “(B)ased on the microscope comparison, I was unable to eliminate this weapon as having fired the bullet, but I could not identify this weapon as having fired the bullet.”
Davy seemed to be saying both were possible: the weapon could have fired the bullet that had been extracted from Doug’s head, or it couldn’t.
“What does that mean to the ladies and gentlemen of the jury?” Lavender asked of his expert witness, hoping to clear up any of that confusion. “What did you find when you made your examinations?”
This was the most vital answer Davy would be asked to give within her brief direct testimony. She cleared her throat, beginning: “When this rifle was made, the manufacturer put six raised ridges into its barrel incline with a right-hand twist.” She added how within those ridges was “a certain width between the raised area and the groove area,” before explaining how each ridge is different, thus giving the bullet its so-called metal fingerprint. “When I test fired the weapon”—Exhibit 21, the Stevens .22 rifle found inside Tracy’s home—“and collected the test fires, the land impressions or the raised ridges, there was the same number. There were six of them and a right-hand twist and they were the same width as the ridges and impressions that are on the bullet that was received from the autopsy.”
A match, in other words.
Davy continued, clarifying how the markings of the barrel had been transferred to the bullet.
The damage for Tracy had been done: That weapon they found inside her home had, according to this expert, fired the bullet that killed Doug Benton.
“What I glean from her testimony is bull crap,” Tracy told me as we began a long conversation about Davy, her career, and her testimony. “She could tell the bullet wasn’t fired from the Remington .22, but it had the same class characteristics being fired from Stevens .22?”
To Tracy, this was inconclusive. You cannot have it both ways.
“Since the bullet was too distorted to make a definitive match,” Tracy continued, “she could not (draw) the conclusion that it was fired from the Stevens .22, yet she could determine the exact brand, caliber and velocity of the bullet by comparing it to the ones she had on hand in the lab? Really?”
Tracy Fortson had a point.
As Davy continued on direct, she explained her findings more clearly, adding, “The next step was to see if the markings from the barrel that are transferred to the surface of the bullet, if they matched between the test-fired bullets and this evidence bullet.”
Indeed, tests of which would truly tell the tale.
“Due to the mutilation that the bullet sustained,” she continued, “… those individual characteristics, or those markings from the barrel, were pretty much obliterated and I was unable to find them, or they were not there on the bullet due to the mutilation.” She went on to call the markings “obscured by mutilation,” not mincing words. Concluding this thought, Davy added, “So the best that I can say is that the bullet from the autopsy … has the same classic characteristics or rifling structure as this rifle, State’s Exhibit 21.”
Not that metal fingerprint the prosecution was hoping for, but enough to lean in that direction—at least according to Bernadette Davy.
“In one of my open records requests to the GBI (later on),” Tracy told me, “I specifically asked for the weight of the recovered bullet in grams. I received a response from Special Agent Lisa Harris who said that a search for the records was done and according to this search, the bullet was not weighed.” Tracy wanted that weight of the bullet, she claimed, “due to the fact that Dr. Smith stated in his (autopsy) report … that the bullet was pancaked and too distorted for ballistic comparisons.”
Smith did not use that precise language. In an eight-p
age report, Smith only mentions the bullet once, calling it, again, “greatly deformed.” I never saw another report indicating Smith thought the bullet was “pancaked” and “too distorted for ballistic comparisons.” Furthermore, why would a pathologist ever make such a bold claim? In all my years of studying hundreds of autopsy reports, I do not ever recall this type of analysis being made by a pathologist in his or her autopsy report.
“If the bullet was not weighed, then there was no way to tell if the bullet was complete or whether it had lost some of the lead content, which would have altered the weight from its original state,” Tracy continued. “In other words, how did she do a comparison and come to her conclusion if she didn’t even know if she had a complete bullet? And how did she determine from a pancaked, distorted bullet that it was a CCI brand .22 Stinger?”
Several issues here. A ballistics expert does not need a complete specimen to do a comparison analysis. Also, we’re back to the pancaked bullet. It was not 100 percent pancaked, thus allowing Davy to put it under a microscope and have a look. Lastly, Davy certainly knew she had a distorted bullet to work with—she mentioned as much during her testimony.
Bob Lavender’s next question to Davy came off a bit strange, yet he was able to get his point across: “Would it be fair to say that it would be consistent with being fired from this rifle but not this rifle?”
“That is correct,” Davy said over Camp’s objection to a leading question.
Lavender simplified his query: “Can you make any comparison between the bullet in 40 and the two rifles?”
“Yes, sir,” Davy clarified. Then she explained, in great detail, how she went about doing that. It came down to simple science, Davy seemed to say. The ridges on the test-fired bullets from one weapon were “much smaller” in comparison to the ridges on the test-fired bullets from the other weapon. Thus, she could easily eliminate that one weapon when she compared both weapons to the bullet extracted from Doug’s head, regardless (though she never said this) of the shape the bullet fragment was in.
Bottom line here was that although she could exclude the one weapon entirely, she could not exclude the other weapon, saying how “the classic characteristics are completely different.” As for the other weapon—Tracy’s—those “classic characteristics,” Davy was comfortable saying, “are identical, meaning that they have the same number of lands and grooves, the same direction of twist and the widths of those lands and grooves are identical.” Adding further, “The only reason I cannot say that it was fired from this weapon is because the individual characteristics that are unique to each barrel are obliterated from State’s Exhibit 40, the bullet from the autopsy.”
To prove that the bullet extracted from Doug was a CCI brand .22 Stinger, same as they had found inside Tracy’s house, Davy said she compared the autopsy bullet to “several different manufacturers’ brands.” A rather simple, straightforward comparison test.
Lavender asked a few more questions and completed his direct.
The jury, as well as Bob Lavender’s team, must have expected a long and complicated cross-examination by Tom Camp, with the potential here for a good, old-fashioned Southern courtroom tongue-lashing. At the least, a quarrelsome back and forth fest of how, what, where, why, when, by whom, between the defense attorney and his witness. Yet, Camp asked only two questions of Bernadette Davy, each of which focused on how Davy was unable to determine “for sure” that the bullet was fired from the weapon in question; how she was certain it was “consistent with having been fired” and how the bullet itself was “consistent with a CCI brand Stinger, but you cannot say with 100 percent certainty that that is what it is?”
Davy answered, “That’s correct,” to both.
Camp was done.
Immediately following Davy’s second response, the judge piped in and said: “Bye, see you next time.” And the ballistics expert got up and walked out of the courtroom.
I wondered what Tracy thought while sitting there, watching Bernadette Davy walk out of the courtroom, having to answer only two questions from her attorney.
“Well, I feel like Tom just didn’t have the knowledge about ballistics that he needed to ask the right questions. It would have been helpful if he had researched more. He just didn’t have the experience. I’ve contacted a forensic expert (in 2017) who says he can examine and weigh the recovered bullet to determine if it is actually a CCI Stinger. … Hopefully, I can pursue this.”
This would not be the last time the name Bernadette Davy came up in Tracy Fortson’s life.
[1] New York Times, February 11, 2004: http://www.nytimes.com/2004/02/11/us/report-questions-the-reliability-of-an-fbi-ballistics-test.html?_r=0
45.
No one in that 2001 Georgia courtroom had a crystal ball, obviously. But had a medium been sitting next to Tracy, watching the proceedings in the State of Georgia v Tracy Fortson, and by a stroke of reality that person saw the future, here’s what he or she would have witnessed: A damaging blow—a death knell, actually—to any prosecution Bernadette Davy had ever been involved in.
To back up a bit, Tracy Fortson, in her criticisms of Bernadette Davy, was not at all off the mark. Tracy had sensed something in Davy and, as it turned out, the former cop’s instincts were spot on.
Fast-forward to April 2009. Bernadette Davy was set to walk into a courtroom and testify in a murder trial. The prosecution in that case, however, made the decision—just before proceedings began—to have Davy’s results in the case re-tested. When the prosecutor asked the GBI about the case and Davy’s work, officials within the GBI, claimed a memo I later uncovered, came forward and explained that Davy had “admitted” to “falsifying a test report in an unrelated case the month before.”
Simply devastating. For a defense attorney, this was jaw-on-the-floor information.
But there was much, much more.
In those same documents, which included internal GBI memos, a letter and several emails, the GBI stated that Davy had “intentionally fabricated data on a firearms worksheet that was part of the official crime lab case file.”
For any crime lab to hear a revelation of this nature was beyond monumental—the last thing a forensic crime lab wanted to face: the idea that one of its forensic examiners had falsified a report. It calls into question, by itself, all of the work the lab has ever done, not to mention any of the work that particular examiner had ever done in any case.
The specific case relating to Davy dated back to Sept. 8, 2006. It involved a .22 caliber six-shot revolver. During her testing of the revolver, a crime lab scientist conducting an audit discovered that Bernadette Davy “had 10 trigger pulls on a weapons worksheet when the actual number should have been 12 trigger pulls,” those same documents claimed. Because of that seemingly small discrepancy, the crime lab scientist conducting an internal audit of paperwork sent the case for peer review. Just a few hours after Davy’s case had been sent for review, the scientist conducting the investigation received an email from Davy stating that “the trigger pull function of the procedure had been completed.”
That immediate email response from Davy raised a red flag for the investigating scientist.
Why?
“Because she was not expecting to hear back from Davy that quickly,” explained one of the documents.
So the scientist checked in-house chain of custody records and found that the “firearm in question was still locked up in evidence.”
Those two additional trigger pulls had never been completed, which meant Davy had lied about it in her email.
The deputy director of the crime lab, along with several higher-ups, called Davy on the carpet and questioned her about the discrepancy and her subsequent email.
“Did you retrieve the revolver out of (the) evidence locker and complete the two trigger pulls that you had placed on your weapons worksheet?” Davy was asked by one official.
“I did not retrieve the weapon out of evidence and I used the average number of trigger pulls that I had a
lready conducted to complete the analysis.”
Clearly, Davy had fabricated the report and then lied about it.
In the internal report of the matter, “Davy admitted that by her not retrieving the weapon out of evidence and conducting the trigger pulls, she fabricated data on the weapons worksheet.”
Davy argued that “time factors” were the reason—not enough help juxtaposed against too many cases on her plate. A letter accompanying the internal documents I discovered clearly explains that the lab was stressed and in desperate need of additional scientists to keep up with demand from the various district attorneys’ offices they worked for.
“(N)ot completing the trigger pulls,” Davy said during that interview about her conduct, “did not impact the quality of the case.”
Although this is probably accurate to say, it becomes an insignificant, irrelevant factor in the totality of the situation.
As they talked about the matter back and forth, Davy said the scientist who suggested the peer review had always been a bit of a thorn in Davy’s professional side. The woman “constantly nit-picks (Davy’s) work on peer reviews and she (Davy) was fed up with it and that is the reason she fabricated the data,” the internal documents I uncovered went on to say. “(She) stated that she has never fabricated data in her cases in the past, or done anything similar to fabrication.”
One of Davy’s bosses stepped up in her defense, however weakly, and explained how he had once reported that Davy was in dire need of “a break from working rush cases and if she didn’t get one she was going to end up doing something stupid.”
TARGETED: A Deputy, Her Love Affairs, A Brutal Murder Page 15
