Chapter 8: Lights and Sirens

[Archival]: Now to a story that’s all new at 11. An innocent man is finally free of the crime that ruined his life.

Tessa Kramer: In the spring of 2019 – in the midst of my reporting – news broke of a 13th man being cleared.

[Archival]:  Winston Scott was convicted of raping a woman more than 40 years ago, but it turns out he’s innocent. The Virginia Supreme court just cleared his name.

Tessa Kramer: Winston Scott was cleared by DNA testing on Mary Jane Burton’s clippings…but how was he convicted in the first place? 

[Archival]: The blood testing performed back then returned murky results, but Winston was convicted anyway.

Tessa Kramer: Hearing about murky blood testing results in Winston Scott’s case, I’m reminded of something Gina Demas said about Mary Jane’s role in these 13 exoneration cases…

Gina Demas: They probably think she’s the greatest thing since sliced bread because she saved their bacon. They don’t know that she fried them in the first place.

Tessa Kramer: On the one hand Mary Jane was responsible for the exonerations because she saved evidence. But was she responsible for the original convictions, too?

(Admissible theme begins)

Tessa Kramer: This is Admissible. I’m Tessa Kramer.

(Admissible theme ends)

Tessa Kramer: When I first reached Winston Scott a few years ago, he’d been in and out of the hospital with some serious health issues.

Winston Scott: I went through hell last year. I should have died twice and I didn’t. I kept telling myself, I can’t go nowhere. I gotta prove this to the world, that it wasn’t me.

Tessa Kramer: Back in 1975, Winston was 19 years old, with big plans for his future.

Winston Scott: I was gonna go in the Navy, come home, get married, retire at 39 years old. I was gonna go to dental school, then go into private practice.

Tessa Kramer: None of that happened. Instead, Winston spent years in prison for a rape in northern Virginia that he had nothing to do with. A young, white woman had been attacked in her home. She told the police her attacker was a light-skinned Black man. Based on her description, the police zeroed in on Winston Scott.

Winston Scott: I was at work. I was a groundsman. I was walking around picking up trash and the police pulled up and he said, “Are you Winston Scott?” And I said, “Yes sir.” And he said, “You’re under arrest for rape and burglary.” I said, “I ain’t done anything.”

He said, “Let me tell you something young man.” He said, “Just go ahead and confess to it. It’ll be easier on you.” And I said, “I’m not confessing to anything because I didn’t do anything.” So they took me to jail. And we went to trial and they found me guilty. I did four years, seven months, and 27 days.

Tessa Kramer: Those years had a profound impact on Winston’s life.

Winston Scott: I missed growing up with my two baby sisters and my little brother. 

Tessa Kramer: He missed his grandparents’ funerals. With a rape conviction on his record, he lost his opportunity to join the Navy. And, he lost his fiancée too.

Winston Scott: I just finally tell her, I said, “You know, I’m going to be here for a while.” Told her I didn’t want her to come see me at that place. Just broke her heart. The day I got out, I went by and seen her. She was with her boyfriend. Told her I still loved her and I always would. Never seen her again. Just…felt like I had been robbed of everything. I mean, they just ruined my life. For something that I didn’t do.

Tessa Kramer: Decades later – the lab found that Mary Jane had saved clippings of evidence in Winston’s case file. Despite this evidence, the Virginia Attorney General fought Winston’s innocence petition for about two years. Finally, in 2019, Winston was officially exonerated. I called him a few days later.

Winston Scott: I feel wonderful. This is a 44 year burden lifted off my shoulders. I am just ecstatic.

Tessa Kramer: Ecstatic, but also like…kinda pissed! According to Winston, after his exoneration, he received a call from someone from the state, offering him a paltry sum for compensation.

Winston Scott: I said, “You know, this was never about the money.” I said, “This was about clearing my name up”. I said, “You guys don’t have enough to repay me for what you did.” You can ruin somebody’s life, but you can’t repay ’em for it.

Tessa Kramer: The case was settled in court. The state awarded Winston around $159,000. I feel like the state owes him a lot more. Not just financially. He was also owed answers – someone owning up to where the system broke down. 

Winston Scott: When they did blood tests, I should have been released right there on the spot.

Tessa Kramer: Long before the DNA testing, the state had evidence pointing to his innocence, including Mary Jane Burton’s serology testing. Winston should have never been convicted in the first place. I sit down with Winston’s attorneys – Frances Walters and Parisa Dehghani-Tafti – to break down the evidence.

Tessa Kramer (to attorneys): So yeah, just want to make sure that you’re happy to be recorded for this podcast. 

Frances Walters: Yes, that’s fine. 

Parisa Dehghani-Tafti: “Happy” is not the word I would have used. 

Tessa Kramer (VO): They tell me that Mary Jane did two rounds of testing on the evidence in this case and got completely different results. I’m skipping some of the play-by-play because it gets pretty technical. But Parisa says it’s actually kinda simple.

Parisa Dehghani Tafti: The bottom line is that the first round of testing, on its face, he was excluded. And on the second round of testing, it was inconclusive.

Tessa Kramer: In her first round of testing, Mary Jane analyzed a semen stain found on the victim’s jeans and reported that the perpetrator was a type A secretor. And she found that Winston Scott was a non-secretor – meaning his blood type wouldn’t even show up in his semen. So Winston Scott? Not the perpetrator.

Then…things got a little weird. The hospital that collected the victim’s rape kit ran some blood tests and got some results that didn’t match up with Mary Jane’s. So the detectives have a chat with Mary Jane…and she decides to rerun some tests. This time she reports that both the perpetrator and Winston Scott are type O secretors. In other words, Winston Scott could be the perpetrator. 

Frances Walters says that Mary Jane did offer an explanation for the change to her results…

Frances Walters: Mary Jane Burton’s testimony at trial was that the jeans were not kept in a refrigerator. She opined that maybe they were wet, because there was a semen stain on them, so then they grew a bacteria.

Tessa Kramer: So Mary Jane claims that bacteria messed up that first round of testing. But there’s another possibility.  

Frances Walters: Maybe the perpetrator was type A and that should have eliminated Mr. Scott right away.

Tessa Kramer: In other words, maybe Mary Jane’s original results were correct, and she changed them in order to keep Winston Scott as a possible perpetrator. That would be pretty bad. But I wonder if there’s any validity to the bacteria thing, or some other explanation for what Mary Jane did here. I decide to phone a friend: Marilyn Miller, the retired serologist who reviewed Gina’s documents for us.

Marilyn Miller: Can we get it on the record that it looks like Tessa just got out of bed ‘cause of the bed behind her.

Tessa Kramer (to Marilyn): I know. If I had known we were gonna be doing video, I also wouldn’t have been wearing my Michael Scott Office T-shirt as well, so… 

Tessa Kramer (VO): I’d sent Marilyn Mary Jane’s bench notes and reports for this case and – just like the ones in Gina’s documents – the issues start jumping off the page.

Marilyn Miller: I think what Mary Jane Burton did is she started blaming some of her issues on the way in which the evidence was handled. Improper handling can affect results in the lab. I also believe that she could have easily been getting pressure from the outside.

Tessa Kramer (to Marilyn): Meaning…? 

Marilyn Miller: To come up with the right results. The results that would indicate Mr. Scott.

Tessa Kramer (VO): After the break: Marilyn Miller is on the case.

–AD BREAK–

Tessa Kramer (to Marilyn): So yeah, why don’t we get into the Winston Scott Case?

Marilyn Miller: Yeah, let’s talk about this case.

Tessa Kramer (VO): I’m on Zoom with Marilyn Miller, the retired serologist who’s been helping us review some of Mary Jane Burton’s old cases. I’ve asked Marilyn to look at Mary Jane’s original bench notes from the case of Winston Scott – the 13th man exonerated by DNA testing on Mary Jane’s clippings.

After looking over the case file, Marilyn rattles off a laundry list of issues – the kinds of things we saw in Gina’s documents – the serology 101. Skipping controls, using a worksheet for blood tests on a saliva sample…

Marilyn Miller: Tessa, what it kind of tells me is she didn’t have a real set methodology. It just kind of looked like things were all over the place. 

Tessa Kramer: A lack of methodology could explain what went wrong with Mary Jane’s blood type testing. It’s exactly what Marilyn would expect when you skip controls and don’t follow proper procedures.

And I wanna note that in Marilyn’s analysis, Winston wouldn’t have been definitively excluded by the first round of testing. This gets a bit technical – it has to do with that secretor status test – but this doesn’t mean there weren’t big issues here. If Mary Jane retested evidence and got completely different results for both the suspect and the victim?

Marilyn Miller: That’s lights and sirens. There’s a problem. You cannot give conclusive results.

Tessa Kramer: But Mary Jane did give conclusive results. And at trial, she dug her heels in on that second round of testing – the results that kept Winston Scott in the pool of people who could’ve committed the crime. She told the jury the discrepancies were caused by the jeans not being stored properly – that the semen stain had grown some kind of bacteria.

Marilyn Miller: If she really, really believed that this evidence was handled improperly she should have questioned every result that she got instead of going ahead and plowing through and coming up with results. I would’ve simply said. “Inconclusive results based on improper evidence handling,” and let it go with that. That’s the true scientific way to do it.

Tessa Kramer: That whole bacteria explanation, though? Marilyn calls bullshit.

Marilyn Miller: That was baloney.

Tessa Kramer: Excuse me – baloney.

Marilyn Miller: Unless she’s done some tests on that, she can’t say any of that. I can’t go to court and just make shit up unless I’ve published it or it’s been peer reviewed. Okay? 

Tessa Kramer: Now Marilyn has her own theory about Mary Jane’s testimony, which – now, to be clear – this is neither published, nor peer reviewed…

Marilyn Miller: She went ad nauseam on about different layers of the denim material and you know, my personal life experiences have told me that if somebody gives me too much detail, they’re lying. And that’s from over thousands and thousands of students telling me why they aren’t ready to turn in their lab reports. Okay.

Tessa Kramer: Okay. But let’s say bacteria did impact the result Mary Jane got for that semen stain on the jeans. That still wouldn’t explain why she re-tested Winston Scott’s saliva sample and got a totally different result.

Tessa Kramer (to Marilyn): That to me is maybe the most suspicious of all of this…

Marilyn Miller: Oh, absolutely.

Tessa Kramer: As far as implicating someone who the DNA has since proved was innocent. But is it going too far to say that instead of re-running everything, she re-ran what she needed to in order to get a result that implicated Winston Scott?

Marilyn Miller: I think that’s a reasonable conclusion. I’m sad to say that. 

Tessa Kramer (VO): You can come up with explanations involving bacteria, or sloppiness, or “bad documentation”…But if you ask me, none of those are a reasonable explanation for what Mary Jane did in this case – selectively re-running tests, changing multiple blood types from A to O, from non-secretor to secretor – all in such a way that just so happened to keep Winston Scott in the suspect pool. Marilyn sees a much more reasonable explanation for this.

Marilyn Miller: You know, I can see exactly what Mary Jane Burton was doing. She wanted to put together a nice, pretty little package to present to the detectives, to present to the state attorneys, and then to go to court. And if it wasn’t a pretty neat little package, what can I do to make it pretty and neat? Now, I can’t say that’s what she’s doing, but that’s kind of underlying what I’m seeing here.

Tessa Kramer: We’ve seen this before. Mary Jane making a change to a result – like the suspect’s blood type – a change that might be due to some kind of evidence mishandling…or maybe not not…but a change that just so happens to favor the prosecution.

When Mary Jane took the stand in this case, and when the prosecutor asked her if there was any question in her mind about the second round of testing, she answered: “No sir, there isn’t.” 

Marilyn Miller: That should have been, “Let me look at the results. If the results are all over the place, then I’m not gonna call anything.” Instead, she put together a nice, neat little package with a plausible explanation, according to her. And it pains me to say that. It pains me to say that. You know this pains me to say these things. But that’s the only possible explanation I can think of.

Tessa Kramer (VO): Marilyn and I have discussed this many times. She is a dyed-in-the-wool, true believer in forensic science. Whenever I refer to “forensics” she’s quick to correct me – it’s forensic science.

Marilyn Miller: I still believe – I’m still gonna be Pollyanna! I still believe that forensic scientists are scientists first and they’re gonna do what the science says. Okay. I really believe that. I go to sleep at night believing that.

Tessa Kramer: Marilyn has spent decades as a professor, training the next generation of forensic scientists. And she’s worked in crime labs herself, too. Not the Virginia lab, specifically – but similar. In her view, Mary Jane is the exception, not the rule. A glitch in the system rather than a product of it. And based on her personal experience, Marilyn has a sense of how this can happen.

Marilyn Miller: Detectives would oftentimes come to the lab to talk to the supervisors about, you know, “When am I gonna get results? This is what I’m looking for.” I believe that, in 99% of the time, the lab people were honest about doing the completely objective scientific view, but there had to be some pressure being exerted that is bound to affect some folks. 

Tessa Kramer (to Marilyn): Yeah. If you think, you know, this was someone’s mother who was killed…I want to help them solve this case…

Marilyn Miller: And they don’t, they don’t teach us how to deal with this in school. They don’t teach us about, you know, office politics, they don’t teach us about pressure to get samples done. And don’t misread that as being an excuse for what she did, because I think it’s reprehensible what she did.

Tessa Kramer (VO): Marilyn is not the first person to tell me about the pressures from law enforcement that forensic analysts often felt in the lab…

Gary Harmor: The true test of someone back in those days was when they got an exclusion, did they stand up and say, “This is an exclusion, you got the wrong person.” 

Tessa Kramer: Gary Harmor is also an expert in serology, like Marilyn. He’s the head of the Serological Research Institute in California. Gary has primarily worked in private labs since the ‘70s, but he’s very familiar with the culture of forensic labs in general.

Gary Harmor: There’s a lot of nuances in conventional serology. The power of it was exclusionary. So if you had a type from the evidence that didn’t match the suspect or the victim at a crime scene, that would exclude the guy they had charged with and that’s absolute.

Tessa Kramer: Serology was this tool – the scientific standard of the day – but it really couldn’t do what prosecutors wanted it to do. They wanted it to point to suspects – the way DNA can. The power of serology was to eliminate suspects – to narrow down a suspect pool. But Gary says analysts could manipulate their results just enough to keep someone included as a possible perpetrator – when they should have been excluded.

Gary Harmor: That’s where things kind of went awry with some analysts in some police-controlled laboratories. They were very subjective to the police who were making suggestions, like, “This guy is really bad. We’ve got to get him off the street.” You know, “Give me what I need from the evidence.” And it took a strong personality to say, “I don’t care what you say. I’m just going to find out what I got there.” And boy people who came up with exclusions? Their feet got put to the fire, I’ll tell you. Because that’s not what the police wanted to hear.

Tessa Kramer (to Gary): I think that’s very different from what most people picture science–

Gary Harmor: Yeah, scientists are people. You’re subjected to, well, I’ve got a job, I’ve got a family, I’ve got to support them. I don’t want to lose this job. I better kind of back off. Even though I got an exclusionary type, say I can’t tell.

Tessa Kramer (VO): Take Mary Jane’s whole bacteria explanation. Turns out, this was a common refrain from serologists on the stand back in the day. A legal scholar named Brandon Garrett and Peter Neufeld of The Innocence Project co-authored a study that found numerous instances of serologists pointing to bacterial contamination as a way to explain away “inconvenient” results that just didn’t fit the case.

Peter Neufeld: You have to understand that for 75 years, crime labs were considered part of law enforcement. 

Tessa Kramer: This is Peter Neufeld.

Peter Neufeld: Some of the crime labs were actually run by district attorney’s offices. Most are run by Sheriff’s departments or police departments. A state laboratory might be run by the Attorney General. And so they were not operating all along as neutral scientists. 

Tessa Kramer: The Virginia state crime lab was an independent agency – not officially under the control of police or the Attorney General’s office – but unofficially? Based on what I’ve learned – it’s clear there wasn’t a firewall there. Look no further than the case of Winston Scott.

We visited Winston at the house he was able to buy with his compensation money. He showed us around, including his prized fish tank. He still has a lot of health issues so he spends a lot of his time just sitting and watching them…

Winston Scott: I’ve got fish in there that they’ll tell you at the pet store that they can’t live together and I tell ’em, “Well, I’ve had fish tanks for 40 years and I always put ’em all together.” And it’s, when you feel down and depressed, you sit back and you watch these fish and it just puts you in your own little world. Just to watch ’em swim around, watch ’em grow. I’m ready to move on. It’s been like 45 years now. And I would still like an apology from the detectives and them that did this to me, but I don’t see that happening. But it would be nice.

Tessa Kramer (to Winston): Why would that be meaningful for you?

Winston Scott: Just that they admitted they made a mistake. Well, it wasn’t a mistake. They set me up is what they did.

Tessa Kramer (VO): If the state had investigated the question of how Winston Scott was convicted, they could have uncovered this too.

Peter Neufeld: Look at it this way. 

Tessa Kramer: Peter Neufeld offers a helpful analogy: 

Peter Neufeld: If you ran a bank and you caught the bank teller embezzling money in a single transaction, would you say, “Oh, that’s just a one-off situation and you know, I might fire ‘em or whatever.” Or would you say, “My God! I’ve got to do an audit of the other transactions that this teller was involved in, cause there may be numerous instances of embezzlement.” 

Well there’s no question in the private sector, they would do the audit, okay? But what we find far too frequently – particularly in state, local, and federal government – is a reluctance to do any kind of rigorous audit to see whether it’s something that’s a one-off or whether it happened numerous times. 

Tessa Kramer: This frustrates me…a frustration I bring up with Marilyn.

Tessa Kramer (to Marilyn): The DFS – when they went back and did the DNA testing in this and all the other cases of Mary Jane’s case files – they didn’t make any kind of attempt to sort out: was the serology testing above board here?

Marilyn Miller: Probably ‘cause they didn’t have anybody on staff who knew how to read these things. Us old people know how to read results of serology.

Tessa Kramer: But they could have done what we’re doing with you, couldn’t they? I mean couldn’t they have…

Marilyn Miller: Yeah, they could have. But they have, they have DNA. They have the panacea, the savior.

Tessa Kramer (VO): Right… and case by case, if the question you’re asking is whether a person is guilty, the DNA is really helpful. But what if the question you want to answer is: Could these wrongful convictions be connected? And could there be more than 13 links in that chain?

It’s incredible that the state exonerated 13 men through DNA testing. It also feels as if, with each of these cases, the state just kind of threw their hands up in the air, like, “Whoops! Not sure how that happened.” And then it kept happening. Just among the 13 wrongful convictions we know of, there are a host of issues.

There’s the case of Willie Davidson, where Mary Jane overstated her serology results, testifying that 42% of the population would be excluded as a suspect – when in fact no one could have been excluded. Mary Jane also gave misleading testimony in the case of Victor Burnett. 

Or take Thomas Haynesworth. He served 27 years before DNA testing cleared him. Haynesworth told us that, at different points, he was told that he was blood type B, and then when it came to trial, they said he was Type O. And there’s Bennett Barbour. In his case, there was a blood test that could have been run, which might have excluded him, depending on the result.

None of this came up in the state’s DNA review. Mistakes or worse, this is a pattern. One the state is ultimately responsible for, and I don’t think they’ve fully reckoned with it.

(Admissible theme begins)

Tessa Kramer: Next time on Admissible…

Eileen: After the trial it was over and done with it was like closing a book. And then to have it just bam, in your face, come back. “You screwed up.” All over the newspapers, running across, you know, your TV at the bottom of the – you know CNN – “Woman wrongly convicts…” It was horrible.

–CREDITS–

Admissible is produced and hosted by Tessa Kramer. Our executive producer is Ellen Horne.

Original reporting by Tessa Kramer and Sophie Bearman, with additional reporting by Ben Paviour and Whittney Evans. Our editor is Danielle Elliot, with additional editing by Ellen Horne.

Our production team is Dana Bialek, Chloe Wynne, Gilda di Carli, Leslie Neigher, Kristin Vermilya and Kim Nederveen Pieterse.

Gavin Wright is VPM’s Managing Producer for Podcasts. Meg Lindholm is the Director of Podcast Production. 

Sound design and mix by Charles Michelet. Music by Del Toro Sound and Story Mechanics, and with additional music by APM. Our theme music is by me, Bryan J. Howard of Del Toro Sound. 

Admissible, season 1: Shreds of Evidence is produced by Story Mechanics and VPM, Virginia’s home for public media. We are distributed by iHeart Media.