MYRTLE BEACH — Editor’s note: This is part 1 of 2.
A Myrtle Beach man serving a life sentence for a sexual assault is making a last-ditch effort to get a new hearing in a case where his DNA sample inexplicably disappeared in what some say was a conspiracy to frame him for the crime.
Those who investigated the assault, however, say there is no conspiracy and they have no doubt the right man is in prison.
Robert Carter and his family submitted a letter this month to Circuit Court Judge Steven John outlining the reasons Carter says he was wrongfully convicted of sexually assaulting Millie Hayden Dougherty at her family’s Myrtle Beach motel in 1994 and then harassing her for two months with obscene telephone calls.
It is the most recent in a series of attempts to seek a new trial, legal battles that keep hope alive for the Carter family, and keep scars fresh for the victim.
Carter was convicted in 1996 of numerous charges, including criminal sexual conduct, burglary, kidnapping and using a deadly weapon while committing a violent crime. He was sentenced to life plus 45 years in prison. He has spent more than 16 years at the Lee Correctional Institution in Bishopville and has been through numerous court proceedings seeking a new trial. Each request has been fought by the S.C. Attorney General’s office and ultimately denied.
The Sun News used a combination of interviews, trial transcripts, police incident reports, depositions, affidavits and other court documents to make a step-by-step examination of the crime, its investigation, the conviction and appeals that followed. Among the issues raised in that review:
• A State Law Enforcement Division serologist, who claims she never makes mistakes, said she found DNA evidence – a semen stain on a pillowcase – that no one else could detect.
• Someone destroyed DNA samples that might have helped exonerate Carter in a post-conviction relief hearing.
• A saliva sample Carter provided under a court order disappeared when it reached SLED headquarters in Columbia, and defense lawyers have said that sample might have been used to frame Carter for the crime. The fact that Carter’s saliva had been missing for more than a year wasn’t disclosed to defense lawyers until midway through Carter’s trial, yet the defense failed to ask for a mistrial.
A jury deliberated for 45 minutes before convicting Carter, who had no prior criminal record and had enlisted to join the U.S. Marines just weeks before Dougherty reported the assault.
Robert Carter stated in his application for a post-conviction relief hearing that the significance of the missing DNA sample and discrepancies in the criminal investigation were never adequately explained to the jury during his initial trial. Appeals court judges said they were intrigued by a conspiracy theory presented regarding the missing DNA, but no legal errors were made in the initial trial that would warrant a new hearing.
Judges in his post-conviction relief filings signed orders written by the attorney general’s office that brushed aside evidentiary issues and claims that Carter’s court-appointed defense lawyer was ineffective.
“There is a presumption that trials are conducted under the watchful eye of good, thoughtful judges and that the decisions rendered are fair and impartial – but things happen,” said Joseph McCulloch, a Columbia lawyer and founder of the Palmetto Innocence Project, which works with the national Innocence Project to exonerate wrongfully convicted individuals in South Carolina. McCulloch’s group is not involved in Robert Carter’s case.
McCulloch said “a great number of appeals are unsuccessful,” and defendants face daunting challenges in getting a new hearing.
“We see the trial process fail frequently,” he said. “There are often real instances of wrongful conviction.”
Investigator: Justice was served
Mike Arrington, one of the Myrtle Beach police investigators who charged Robert Carter with the crimes, said he is convinced Robert Carter belongs in prison.
“I believe he’s guilty,” said Arrington, who now is president of Excalibur Security and Investigations in Myrtle Beach. “If I didn’t, I’d be doing everything I could to help get him out of prison.”
Robert Starr, the lead investigator on the case, said he is “100 percent sure he did it.”
“I have no doubt – none at all,” said Starr, who now is an ordained deacon at St. Michael Catholic Church in Garden City Beach.
Meanwhile, ongoing court battles and parole hearings take a continuing toll on both families.
“Some people say, ‘It’s been a long time, get over it,’ ” Dougherty told The Sun News in March as she was preparing to attend Carter’s latest parole hearing. “But it’s not something you ever get over. I’ve learned to deal with it so it doesn’t crush my everyday life, but I will never get over it.”
Burke Carter said he is discouraged with the judicial system and sometimes wonders if he will ever see his son as a free man.
“I was 54 years old when Robbie was arrested for something he didn’t do, and now I’m almost 72,” Burke Carter said. “I don’t know if I’ll be around to see justice served. I’ve lived with this for so long.”
Carter – who turned 38 last week – was convicted before a state law was passed barring early release for violent criminals and he has been eligible for parole twice, once in 2010 and again this year. His parole was denied both times after Dougherty, her friends and prosecutors testified against him at his parole hearings. He will be eligible for parole again in 2014.
Last month, Judge Steven John turned down Carter’s request for a second post-conviction relief hearing. The Carters’ letter asks John to reconsider that decision. If that is denied, state law allows Carter to appeal his case directly to the S.C. Supreme Court, which is under no obligation to hear it.
The Sun News usually does not identify sexual assault victims. However, Dougherty spoke about the incident at length with the newspaper earlier this year and gave the newspaper permission at that time to use her name. She also has spoken publicly about her case as an advocate for sexual assault victims.
Dougherty declined to revisit Carter’s claims for this article.
“I think in many ways, this is something that has already been responded to by the criminal justice system,” she said.
An assault followed by obscene calls
Dougherty told police an intruder broke into her apartment at her family’s Byrd’s Nest motel, placed a pillowcase over her head and then forced her to perform oral sex. She later told police that her attacker held a knife to her throat during the assault. The attack took place about 5:30 a.m. on Dec. 3, 1994. Dougherty said she received three telephone calls over the next two months in which her attacker taunted her about the crime.
The last call – at about 1:30 a.m. on Feb. 1, 1995 – was recorded by Dougherty and traced to a public pay phone along Ocean Boulevard near The Lighthouse motel, where Robert Carter was living with his girlfriend.
Dougherty took her recording of the telephone call to the police department on the afternoon of Feb. 1, 1995, and Starr, a detective with the Myrtle Beach police, helped trace the number back to the pay phone near The Lighthouse motel. For the first time since the assault, Dougherty – who had learned days earlier that Robert Carter was living at the motel – told police she recognized the voice of her attacker.
“I asked her if she knew anybody that stayed there [at The Lighthouse motel], and she paused a brief second and said, ‘You know, Robbie Carter stays there,’ ” Starr testified at the trial. Dougherty knew Robert Carter because his parents had stayed as winter rentals at the Byrd’s Nest motel. They were living in Garden City Beach when the assault took place.
Starr and Dougherty listened to the tape recording again and Starr said during the trial that it was as if “the light bulb’s going off.”
Dougherty said, “Yeah, that’s him. That’s his voice,’ ” Starr said during the trial.
Robert Carter was arrested that day and charged with unlawful use of the telephone, burglary and criminal sexual conduct.
Starr told Carter that an obscene telephone call that morning had been traced to the pay phone outside the motel where he lived, according to the trial record. Carter denied making any telephone calls to Dougherty, but told Starr he had been outside the motel that night to get his girlfriend a soda from a drink machine. Carter then told Starr that two Myrtle Beach police officers had questioned him while he was getting the drink.
Myrtle Beach police, who were investigating an unrelated armed robbery along Ocean Boulevard on the morning of Feb. 1, 1995, spotted Robert Carter walking outside The Lighthouse. When police realized Robert Carter was not a witness to the armed robbery, they drove away and he returned to his room.
Those police officers confirmed they saw Carter near the pay phone between 1:22 a.m. and 1:40 a.m., but he did not have a drink in his hand at the time, Starr testified at the trial.
When police searched Carter’s motel room, they found an iron-on decal in a dresser drawer with a phone number and the name “Millie” written on it. The decal also had the word “switchboard” written on it, and another telephone number that was the main line for the Byrd’s Nest motel.
Carter, who worked at an Ocean Boulevard T-shirt shop at the time, said he had the phone numbers because his parents had lived at the motel and he had to go through the switchboard to reach them on the telephone in their room.
Missing saliva sample
Myrtle Beach police used a Luma-Light – a type of black light that causes body fluids to glow in the dark – to examine Dougherty’s apartment on the day of the attack, but they could find no evidence of blood, semen or saliva on Dougherty’s pillowcase or T-shirt, according to a police report.
“We went to the crime scene and … used the laser in the bedroom area with negative results,” Starr said in his report, adding that the pillow case and T-shirt were taken as evidence.
Emily Reinhart – a serologist at SLED’s forensics laboratory – said during the trial that she could see two stains on the pillowcase from a visual exam she conducted three months after the attack. She said she also used a Luma-Light in March 1995 to view the pillowcase and noticed what appeared to be a semen stain, which she said “has a very bright concentrated fluorescence.”
There was “no semen on the T-shirt, but up here there is going to be semen on the, on the pillowcase,” Reinhart testified.
The question of why Reinhart’s Luma-Light examination detected body fluids but the Myrtle Beach officers failed to detect any body fluids using the same type of light was never raised during Robert Carter’s trial.
Reinhart, who still works at SLED, did not return a telephone call seeking comment. SLED spokesman Thom Berry said the agency declines to comment on Robert Carter’s case because it remains in litigation.
Reinhart said at the trial that she cut two samples where she identified body fluids from the pillowcase and then placed the rest of the pillowcase and T-shirt into an evidence storage room. Reinhart said she kept the pillowcase cuttings in her custody as she awaited DNA samples from Carter and Dougherty to arrive.
Carter was ordered to turn over blood and saliva samples on June 2, 1995. Dr. Lee Proctor and a hospital lab director obtained the blood and saliva samples at Grand Strand Regional Medical Center as a sheriff’s deputy and others watched. The doctor then placed the samples into a rape kit, which was sealed and given to Horry County Deputy Sheriff Edwin Johnson. The lid of the rape kit clearly stated it contained Robert Carter’s saliva and two tubes of his blood, according to a photo of the lid and trial testimony
That saliva sample apparently disappeared sometime during the week after the rape kit left Grand Strand Regional Medical Center and June 9, 1995 – the day SLED forensic technician Connie McKay received it from Myrtle Beach police at the state lab.
Proctor testified at the trial that several witnesses inspected the containers at the hospital to make sure they were properly sealed and that the labels affixed to them accurately represented the containers’ contents, including the saliva.
McKay, however, said Robert Carter’s kit only contained blood samples – there was no saliva sample – when she accepted it from the Myrtle Beach police.
“So, you’re saying then that the only thing that you received in regards to the suspect was blood?” Dean Mureddu, the public defender representing Robert Carter, asked McKay during the trial.
“That’s correct, yes,” McKay responded.
A scientist who doesn’t make mistakes
Reinhart testified at the trial that she was able to match Carter’s blood sample to what she now referred to as a “mixed stain” of semen and saliva on the pillowcase. Her characterization of the stain being “mixed” contradicted her initial report in April 1995 that stated only semen was detected.
“It, it actually was a mixed stain,” Reinhart testified at the trial. “There was semen and saliva mixed together.”
That finding was too convenient for Rauch Wise, one of Carter’s lawyers, who argued unsuccessfully for a new trial during a state Supreme Court hearing in 2001.
“The SLED serologist only reported saliva as being found [on the pillowcase] after the saliva [sample] was missing,” Wise said. “In her initial report on April 3, 1995, she reported semen found. After the saliva is missing, she does another report, and then detects saliva. … When you don’t detect saliva the first time, and you don’t detect it until after it disappears, I think you have really got some serious problems with the chain of custody in the case.”
Wise said he was surprised when he learned that the state Supreme Court had turned down Robert Carter’s request for a new trial.
“The evidence in this case is very questionable,” Wise said. “It doesn’t take a rocket scientist to see that something is very wrong.”
Reinhart testified at Robert Carter’s initial trial that she did not test the second – and much smaller – stain for saliva because she was certain it was only semen. There were no DNA or hair fibers from Dougherty on the pillowcase.
Steve Lambert, a DNA analyst for SLED, and Dr. Francis Chiafari, a molecular geneticist, both testified during Carter’s trial that they could find no objective evidence to show the stains on the pillowcase cuttings Reinhart had tested included any semen.
“I attempted to be able to look under a microscope and actually see whether or not there were sperm cells, and I did not,” Lambert said during the trial.
Chiafari said the DNA found on the pillowcase matched Carter’s, but it contained none of the male fraction DNA that would have been typical in a semen sample. Instead, the sample contained female fraction epithelial cells – the type found in saliva.
In addition, Lambert and Chiafari could only find one DNA pattern – not the two patterns that would have been typical in a mixed stain.
Lambert said a bacterial contamination with the saliva in the mixed stain or detergent on the pillowcase might have eaten up the sperm heads, causing them to end up in the female fraction. Lambert said he had to perform a Y chromosome test on the sample just to make sure the DNA came from a man.
Chiafari offered a simpler explanation for why the semen could not be detected.
“It leaves open the possibility that this sample was left by some other biological source other than semen,” Chiafari testified.
Greg Hampikian, a professor of biology and criminal justice at Boise State University in Idaho, said DNA “was quite new” when Robert Carter’s samples were tested.
“People were using the old RFLP [restriction fragment length polymorphism] analysis in 1995, which was hard to do because you needed a lot of DNA” to get an accurate reading, said Hampikian, a forensic DNA expert who is not involved in Robert Carter’s case. He is perhaps best known for his testing that helped cast doubt on evidence in the Amanda Knox murder case in which DNA samples taken at the Italian crime scene where Knox’s roommate was slain excluded Knox, and she was released from prison.
The DNA testing in Carter’s case matched evidence to six genetic markers, according to trial testimony. Hampikian said more accurate and advanced testing was widely available by 1999 that could match DNA to more than 13 genetic markers. The Federal Bureau of Investigation stopped using RFLP analysis in 2000 and adopted the newer technology.
Reinhart was adamant during the trial that the stain she tested included both saliva and semen.
When asked whether anyone double-checks her findings or whether she might have made a mistake, Reinhart said during Robert Carter’s trial: “I do my own analysis. … I have never made a mistake in case work.”
Was it the right pillowcase?
It is not clear whether the pillowcase Reinhart and the others tested was the one that Dougherty said had been placed over her head during the attack and, thus, would have been the one with DNA evidence.
David Grazioso, a crime scene specialist for the Myrtle Beach police department, testified that the pillowcase he retrieved at Dougherty’s apartment was one that had been on a pillow on the bed. Dougherty told Starr during her recorded interview that she had thrown the pillowcase that had been placed over her head onto the floor of her apartment.
“OK, what happened to the pillowcase that the victim told you was pulled over her head?” Grazioso was asked by Julia Bass, the former assistant solicitor who prosecuted Robert Carter at his initial trial.
“I don’t know if I collected that or not,” Grazioso responded.
Bass did not return telephone calls seeking comments.
There also was a question over whether Reinhart kept notes for the lab work that initially led her to identify a semen stain on the pillowcase. Bass, during a pretrial hearing on June 21, 1996, told the court that there were no laboratory notes.
“I’ve been told through Mrs. Reinhart on behalf of SLED that SLED serology has never turned over any notes because she said in actuality, her serological report encompasses everything she did on the case,” Bass said during the pretrial hearing. Although Reinhart testified during the trial about tests she conducted, there were no notes to back up that testimony.
However, about two years ago, a set of notes purportedly showing the results of tests Reinhart conducted on the pillowcase in March 1995 surfaced after the Carters filed a Freedom of Information Act with SLED. Those notes showed, among other things, that the pillowcase sample tested positive in a P-30 test, thus indicating the presence of semen.
Ted Yeshion, a forensics expert hired by the Carters, examined Reinhart’s notes and said in an affidavit that they do not look authentic.
They are “exceptionally neat, without any strikethroughs or corrections,” Yeshion said in his affidavit. “If Agent Reinhart told Prosecutor Bass truthfully that there were no such notes at the time of the [pretrial] hearing, then based on the trial record, the only conclusion one could make is that these notes were manufactured well after the fact and back-dated.”
When the Carters asked for the DNA and pillowcase samples for additional testing in 2010, SLED told them all of the DNA evidence had been destroyed. There is no chain of custody to show that the DNA samples had been preserved beyond Robert Carter’s initial trial. Retaining such evidence was not required at that time. A state law that went into effect in 2009 now requires DNA for certain criminal charges, including sexual assault, to be preserved as long as a defendant is incarcerated or until he or she dies.
Repeated court hearings and denials
Mureddu said during the 2005 post-conviction relief hearing in 2005 he initially didn’t make a bigger issue of the missing saliva because he was “shocked” when the disclosure came midway through the trial.
“I had no clue it was coming,” Mureddu said, later adding that the missing saliva “certainly was our best evidence to support a possible, you know, frame up of them planting evidence. So it would have been huge had I known [before the trial].”
Mureddu said during Robert Carter’s post-conviction relief hearing he initially was reluctant to believe his client’s claims that he was the victim of a conspiracy.
“But the way the trial played out, we began to have more things, more X factors, go in our favor to support a conspiracy theory,” Mureddu said. “I didn’t feel like we started with one, but I felt like by the end of the case that they led us in that direction.”
Robert Carter appealed his conviction to the state Court of Appeals and then to the state Supreme Court. His lawyers argued each time that law enforcement failed to establish a sufficient chain of custody for the admission of his blood sample, which was used to match his DNA to evidence on the pillowcase. Both courts ruled that even though the saliva was missing from the rape kit, the chain of custody was complete for the blood samples.
Supreme Court Justice James Moore wrote in a 2001 ruling that he found the conspiracy theory “intriguing,” but it did not affect the chain of custody or admissibility of the blood sample, which was the basis for the appeal.
Robert Carter alleged during his post-conviction relief hearing that Mureddu had been an ineffective counsel because, in part, he failed to raise adequate objections when it was disclosed that the saliva sample had been missing for more than a year. Mureddu said he felt he was well-prepared for the case, but the missing saliva caught him flat-footed.
“The first time any of us on the defense side heard there was missing saliva was during Reinhart’s testimony and I was shocked,” Mureddu said during the hearing.
Despite Mureddu’s testimony, the attorney general’s office wrote a proposed order stating the opposite – that the “conspiracy defense would not have been plausible and would not have resulted in a different verdict.” Judge John Breeden signed the order hours after his office received it – and more than two years after the hearing had been held.
Most recently, Judge Steven John denied Robert Carter’s pro se request for a second post-conviction relief hearing, in which Carter stated that the missing saliva issue has never been properly addressed by the courts.
The attorney general’s office wrote an order brushing off that criticism, stating that Robert Carter “is merely attempting to re-argue the points on which the court disagreed with him.”
John signed that order without a hearing.
“Courts don’t like conspiracy theories,” said McCulloch, the director of the Palmetto Innocence Project. “Conspiracies are capable of happening and they have happened, but it’s difficult to sell that to an appellate court.”
Starr told The Sun News that the missing saliva “sounds like a TV show theory.”
“We at the police department who would have gained something by doing that, I guess, didn’t have access to it [the DNA],” Starr said. “I definitely didn’t do it and I don’t know of anyone else that would have done it.”
Mureddu declined to say whether he thinks Robert Carter is innocent or guilty, but he told The Sun News that he’s surprised no court has ordered a new hearing based on the missing saliva.
“That’s the most bizarre thing I’ve seen … there’s not even a close second,” Mureddu said.
“Robert Carter had a right to know that saliva was missing before the trial, so he could mount and prepare a proper defense,” he said. “If there is a smoking gun on the part of the Carters, that’s it.”
An expert advocate and after-effects
Dougherty said in March that the trial and subsequent court hearings “have been just like a comedy of errors,” and she blames the Carters for trying to keep alive a conspiracy she says has no basis.
“To this day he still denies that he ever did this,” Dougherty said. “He says somehow I know so many people that somebody somehow stole his DNA to put his DNA on the pillowcase.”
That is the contention of Yeshion, the forensic scientist, regarding Robert Carter’s case.
“There are numerous scientific discrepancies, contradictions, alleged missing evidence and other significant findings that suggest the leading causes of wrongful conviction are at play here,” said Yeshion, who teaches at Edinboro University in Edinboro, Pa., and founded ClueFinders Inc., an organization that provides serological analysis and expert testimony to lawyers and law enforcement officials.
Yeshion said he was skeptical when Burke Carter approached him to help with his son’s case. Now, he feels so strongly about Robert Carter’s innocence that he is offering his services for free to the Carters and anyone who can help prompt a new trial.
“I’m now of the opinion that there are so many things wrong with this case on so many levels,” Yeshion said in his affidavit, adding that the red flags include “bad forensic science, poor lawyering [and] government misconduct.”
Yeshion told The Sun News that he thinks someone involved with the investigation or prosecution of Robert Carter’s case put pressure on someone at SLED to create evidence that points to his guilt.
“The theory that I would put forth is that his saliva sample was put on the pillowcase in order to identify him,” Yeshion said. “It’s all speculation – there’s just no way to know for sure. But the evidence points to that.”
Wise, the appeals court lawyer, told The Sun News that he doesn’t know who might have placed Robert Carter’s saliva on the pillowcase, but he said such a scenario is likely.
When asked for a possible motive, Wise said: “To make a case.”
Arrington said mistakes happen in criminal investigations but he can’t believe that anyone involved in Robert Carter’s case would have done anything illegal to gain a conviction.
“You would have to be an evil person to know that you’ve put someone in prison who doesn’t belong there,” Arrington said. “I just don’t see that happening in this case.”
Mureddu said during the post-conviction relief hearing in 2005 that Reinhart would be the key to a conspiracy defense, but he did not have any evidence during the initial trial to contradict her testimony.
“We’ve got one person, one person in this whole case that said that they tested and found semen, and that’s Emily Reinhart and the bottom line is if we could somehow prove that it wasn’t semen I think we have a good argument to say that she framed him up,” Mureddu said during the hearing.
Starr called the case “a classic whodunit,” adding: “Every detective has cases that are like, wow, and this is one of them.”
However, Starr said he felt Robert Carter was guilty as soon as he and Arrington had finished their interview.
“He was calm and cold – a very cold man,” Starr told The Sun News. “He had this coldness is his eyes. It was very weird.”
Dougherty said in March that the attack has had a lasting impact on her life, but not always in a bad way. Since then she has devoted her time to helping others, first as an AmeriCorps volunteer, then as a task force coordinator for the Central Georgia Council on Family Violence, followed by a victim’s advocate for Citizens Against Spouse Abuse in Georgetown and most recently as a human services specialist with the child protective services division of Georgetown County’s Department of Social Services.
“It definitely had a major impact on my career choice,” she said. “It gave me a sense of direction.”
Burke Carter said he still spends sleepless nights worrying about his son and the life he says the criminal justice system wrongfully stole with an unwarranted prison sentence.
“The way he was arrested, prosecuted and ultimately convicted has been devastating for him and for us all of these years,” Burke Carter said. “It is near impossible to express the kind of the pain, frustration, and emotion that such a wrongful conviction as this can bring to everyone. It has drained our lives in every way for so many years.”
Contact DAVID WREN at 626-0281.