DNA Reports and Expert Opinion

Following is the report from Dr. Theodore D. Kessis, former faculty and employee of Johns Hopkins University Departments of Immunology and Infectious Diseases, Molecular Microbiology and Immunology and Pathology, and currently principal of Applied DNA Resources, regarding the blood and DNA evidence collected from the scene of the crime. The report is enlightening and casts much more than reasonable doubt upon the entire case.



September 2, 2006

Report of Findings

State of Nebraska vs. Herman D. Buckman

This report is being submitted in my capacity as an expert on behalf of Herman D. Buckman in connection with his appeal in State of Nebraska vs. Herman D. Buckman.

Cindy Riekenberg, coordinator at Advocates for Justice, Inc., requested my review of the Serologic and DNA testing performed by the University of Nebraska Medical Center (UNMC) and the State of Nebraska Criminalistics Laboratory in connection with this case. Ultimately, Ms. Riekenberg asked that I provide her with an opinion regarding the significance of analysis performed by UNMC in relationship to the previous testing performed by the State and testified to by it's expert.

I. Qualifications

I am a former faculty member, employee and student of the Johns Hopkins University, Departments of Immunology and Infectious Diseases, Molecular Microbiology and Immunology and Pathology. Currently, I serve as principal of Applied DNA Resources.

Over the past 22 years I have had the opportunity to design, utilize and review a wide range of DNA typing technologies utilized in the research, medical and forensic communities.

In conjunction with my former and present positions, I have extracted the DNA from thousands of specimens and performed an equal number of Polymerase Chain Reaction (PCR) procedures. In addition, I am familiar with the electrophoretic assays associated with the detection steps of such tests, having utilized and witnessed these procedures on numerous occasions. I am also familiar with the interpretation of data generated in association with such methodologies, having reviewed the testing and case file information associated with more than 225 cases involving forensic DNA testing.

In addition, I have qualified more than 35 times at both the State and Federal levels as an expert in the use and application of DNA typing, notably the use of PCR based detection of Short Tandem Repeats (STR).

II. Documents Examined

Ms. Riekenberg provided me with the following items for review:

• State of Nebraska Criminalistics Laboratory report date September 27, 1988


• UNMC report dated April 30, 2002

III. Findings

A review of the reports listed above indicate that in September of 1988, the State's laboratory reported the finding of blood on several key items of evidence. Of specific interest here, the lab reported a result for the identification of human blood (blood group subtype specific) on the following items:

• Sweater (item #56)


• Sleeve of a black leather jacket (item #57)


• Slippers (item #70)

In contrast to these finds, a report issued by the UNMC laboratory on April 30, 2002 indicates that on reexamination, no blood was detected on any of these items. It should be noted here that this report indicates that UNMC tested many more specific areas on these items than originally analyzed by the State's lab. Remarkably, UNMC went on to test samples taken from these items for the presence of DNA obtaining negative reults for all samples tested.

Such discordance between the State's original testing and that reported by UNMC is alarming given the inability of UNMC to replicate the detection of any blood, despite UNBC testing of many more samples than originally analyzed. I also found it surprising that UNMC failed to detect any DNA on these items given the State's report indicating that they had detected and typed blood on these items. Given the sensitivity of DNA analysis, such a grossly negative result is highly unusual given the number of items on which blood was claimed to have been found.

In addition to analyzing the items of evidence discussed above, UNMC also tested various samples derived from a cigarette butt alleged to have belonged to or have been used by the defendant (UNMC #02-359-4B, paper and filter; and 02-359-4C, paper only).

Testing by the lab revealed a mixture consistent with the contribution of DNA from two individuals, given that major and minor profiles were discernable in the samples. In addition, UNMC's report indicated that the partial profile detected on the cigarette paper (02-359-4C) was consistent with that possessed by the victim, Denise Stawkowski, indicating that she could not be excluded as a contributor.

With regard to sample 02-359-4B (cigarette paper and filter), the lab reported that the results were inconclusive with respect to any comparison to a number of reference sample tested at the same time, including those from the victim and defendant.

While I agree with UNMC's reported conclusion concerning the sample of cigarette paper, a closer examination of the results for sample #02-359-4B (cigarette paper and filter) clearly indicate that Mr. Buckman is excluded as a contributor of DNA. I base this conclusion on the fact that the lab observed: i) major and minor contributor to this sample, a result consistent with the presence of two individuals, and ii) alleles foreign to the victim and the defendant, thus excluding Mr. Buckman.

Specifically, the profile detected at the D3S1358 loci indicates the presence of three alleles (14, 17 and 18). Of key importance here is the fact that the 14 allele is foreign to both the victim and the defendant. And while Mr. Buckman does posses a 17 allele and the victim an 18 allele, the leab reports that the 14 and 17 alleles are more intense than 18 indicating that these two alleles more than likely belong to an individual other than Mr. Buckman, again a result in support of his exclusion as a contributor.

Further, if in the alternative, one were to argue that Mr. Buckman is still included as a contributor by virtue of "his" 17 allele, they would have to make two highly unlikely assumptions; i) the detected 14 allele was contributed by a third person and ii) the absence of Mr. Buckman's 16 allele merely reflects a failure of the test to detect it. Again, given that the lab reports the victim to be a contributor to the paper portion of the cigarette butt, a third party would have to be the contributor of the 14 allele detected in this sample.

Examination of the alleles detected at additional loci tested by the lab reveals a similar circumstance. Given that the victim has indisputably been detected as a contributor of DNA to this cigarette, Mr. Buckman is for all purposes excluded as a contributor. The only scenario that would include him as a contributor of DNA to this item would necessitate the contributions of DNA from three or more individuals. The data however does not support such a view. While such a circumstance is a formal possibility, the more reasonable interpretation of the data would conclude that two individuals contributed DNA to the cigarette, the victim and an unidentified male.

Summary

It is my opinion that the serologic testing previously performed by the State was neither accurate nor reliable and lacking in provative value. I base my opinion on the highly sensitive tests performed by UNMC on samples from this case. Given their results, it is also my opinion that any prior reporting of blood on any of the items described herein, would have been highly prejudicial in nature if presented toa Jury.

With respect to the cigarette butt, it is my opinion that any allegation ascribing either ownership or use of this evidentiary item to Mr. Buckman would also have been highly prejudicial if presented to a Jury. Further, it is my opinion that the results obtained by UNMC for the cigarette butt are exculpatory in nature, since they clearly exclued Mr. Buckman and point to the presence of an unidentified male in connection with this evidentiary item.


(Signed)
Dr. Theodore D. Kessis

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Facts about Herman's Case

Following are facts about Herman's case. If you can provide any type of help, monetary, vocal, legal or otherwise, please e-mail me.(E-mail is at the bottom of the right-hand column.)

Please follow the "Read More" link to read the facts about Herman's case and decide for yourself.


The Crime:
February 19, 1988, approximately 3:15 am - Denise Stawakoski was found dead in her car. She had been shot twice in the head. The car was found in a ditch near NW 48th and Hwy 34 in lincoln, Nebraska. No weapon was found at the scene. No known eye witnesses to the shooting.

According to trail testimony Denise was last seen alive around 1-1:30 am February 18 at the house of friends/drug-users-dealers (she left between 1-1:30am)

The Victim:
Denise Stawakoski, 25 y.o. at the time of death, married to Jeff Stawkoski with four children. She was living in Lincoln at the time of her death. She was a known drug dealer; buying drugs in Missouri and selling drugs in Lincoln. She was also an addict.

Arrest:
February 19, 1988. Herman Buckman and Goldie Fisher were arrested for the murder of Denise.

Charges:
February 23, 1988 Herman was charged with first degree murder, use of a firearm in the commission of a felony, possession of a firearm by a felon, conspiracy to possess a controlled substance, including allegations of habitual criminal. Goldie F. was charged with being an accessory to murder by giving authoritites false information to hinder their investigation and conspiracy to possess a controlled substance.

Convictions:
February 3, 1989 Herman was found guilty by jury trial of first degree murder and use of a weapon to commit a felony. March 8, 1989 Goldie Fisher, by plea agreement, pled no contest to robbery and being an accessory to murder after the fact.

Evidence used to convict Herman:
1. Seen with Goldie and the victim earlier that night.
2. Was known that he and Goldie were looking for her to get drugs
3. Herman and Goldie had shown a small handgun to the victim's husband earlier that evening and wanted to trade the gun for drugs.
4. Large amounts of cash found on both Herman and Goldie at the time of their arrest. Reports/receipts from payments and money spent by both the day of February 19.
5. Man's slippers, woman's slippers found near scene of crime; Herman and Goldie were known for wearing similar type of slippers out in public.
6. Kool King pack of cigarettes found near the scene of crime (opened in a way that Herman used to open cigarette packs -- from the bottom).
7. Cigarette butts found in back seat of victim's car (saliva testing done -- defendant could not be excluded as saliva donor on cigarette butt)
8. Clothes Herman was wearing at the time of arrest (fiber from jacket similar to fiber found at the crime scene, blood samples found on clothes -- victim could not be excluded as donor of blood stains according to serologist test).
9. Jacket, two floor mats, steering wheel cover taken from Herman's car (blood samples found -- victim could not be excluded as donor of blood stains according to serologist test)
10. Sort-term cellmate of Herman's claims Herman admitted to him that he killed the victim.

Notes re: blood and saliva testing evidence:
Race of perpetrator unknown, statistical frequency evidence limited to only two racial groups; not accompanied by statistical probability evidence that was calculated from a generally accepted method.

DNA testing (done 2002 upon request of Herman) results:
Black leather jacket (the serologist claimed to have found blood on this jacket) -
Tested Negative for blood.

Yellow sweater (serologist claimed to have found blood on this sweater) -
Tested Negative for blood.

Blue Jeans (serologist claimed to have found blood on the jeans) -
Tested Negative for blood.

Black leather cap (serologist claimed to have found blood on the cap) -
found to be uninterpretable by UNMC technician because dy contained in leather cap mimicked a positive presumptive chemical test for blood.

Cigarette butts from victim's vehicle (serologist claimed contained blood group substances consistent with Herman) -
Found to contain numerous alleles that were inconsistent with having been deposited by the defendant.

Statement taken from Motion for Hearing and to Vacate Conviction, prepared by attorney on behalf of Herman:
PCR STR based forensic DNA analysis of items of evidence used by the State to convict the defendant at trial totally failed to confirm any of the serological tests claimed to have been performed by NE State Patrol serologist and directly contradict her findings and testimony.

Other issues:
Ineffective representation, conflict of interest - original trial defense attorney.
At time of Herman's trial, attorney was also representing an individual listed as an 'endorsed state witness'; attorney failed to reveal this information.
Attorney never called witnesses for the defense (such as a woman in Omaha who had provided cash to Herman that night)
Attorney came to Herman to tell him that there was a "problem with one of Goldie's ex-boyfriends" and wanted money from Herman to make the problem go away. Attorney asked for $5000. Herman gave him $2500 and some jewelry.

Herman's state appointed defense attorney has since been disbarred.

Mishandling of evidence by law enforcement -
Deputy took evidence home to an unsecure location, placed everything in a personal freezer for the entire weekend.
Instructions were to refrigerate blood sample evidence and freeze the rest.

Reasonable Doubt:
No known eye witnesses to the crime.

Murder weapon never found.

Unknown what type of handgun Herman/Goldie showed to victim's husband.

Unknown type of handgun used to commit the crime.

According to testimony of the victim's husband, Herman, Goldie and the victim had been working together in the drug business for a few months with no known difficulties. That night, neither Herman nor Goldie owed the victim any money. This brings into question, what motive there may have been.

No one knows how much cash or drugs the victim may have had on her by the time the crime was committed. She had been going out that night to do business.

Herman was seen that night in dress clothes, with dress shoes. What was Herman wearing when? When did he put on the clothes he was arrested in? Herman, Goldie and Vetta (friend who rode in Herman's car to Omaha) all did drugs, all shot up with needles. There was testimony that the victim had also done drugs with Herman and Goldie in the past. Minimal amount of blood found - could it have been from shooting up drugs? Could it have been from someone else?

The purse Goldie had at the time of her arrest had a pack of Kool King cigarettes in it. Could she have been carrying a pack in her purse poened from the bottom?

Even if it could be proven absolutely cigarette butts found in the back seat of victim's car were smoked by Herman, how long could they have been there? If they had been doing business together for a few months, isn't it possible he was in her car in the past?

Cellmate that claims Herman admitted to murder brought it to the attention of investigators four months after the alleged conversation. Discrepancies in his trail testimony. Also, the cellmate wanted to tranfer to a different facility in order to be closer to family. Coincidentally, this happened directly after he told his story.

DNA Testing results.(Inconclusive at worst... Extremely damaging to the State's case at best had the chain of evidence not been broken by the deputy in the first place and had the testing been done by a competent serologist)

Goldie:
She had been with Herman that night and had been the driver of Herman's car (with Herman as a passenger)

Had been the person to talk with the victim the times they saw her that night.

Had been the person that went to the door of the victim's house to talk with her.

Victim left the house after talking with Goldie; individuals testified to seeing this don't recall seeing Herman. They testified that the victim left with Goldie. This was the last time these individuals had seen the victim at about 1am February 19, 1988.

Goldie was picked up near the scene of the crime, near the time when the death was estimated to have occurred by a woman driving home from work.

Herman state in Post-Conviction appeal paperwork that he was offered two separate plea offers: one-plead to one count of being an accessory to murder if he agreed to testify against Goldie and two-plead to one count of second degree murder and sentenced to indeterminate term of 10 years to life imprisonment without testifying against Goldie. (Herman rejected plea offers based on his counsel's assessment that the prosecution's case was so weak he would not be found guilty at trial.)

From newspaper accounts, it appears Goldie has told several different versions of what happened that night. As part of a plea agreement, Goldie's charges were dropped from felony murder and conspiracy to possess a controlled substance and Goldie pled no contest to robbery and being an accessory after the fact. This was entered after Herman's conviction/sentencing.

The Unknown: (Eric- a.k.a. Hollywood)
A possible suspect. Possibly made a deal with State's prosecutors, currently under investigation by Advocates for Justice. In January of 1989 in reference to a major drug bust, a newspaper article stated, "...unspecified written agreement had been made with Beckwith (Eric) and the two confidential witnesses in return for their testimonies." The investigation for the arrests on drug charges had begun in September 1987.

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In Herman's Own Words

Following are excerpts from a letter I received from Herman. It was his intention to let me know of his innocence and to give a bit of background on his case. It has been retyped here, but has not been edited.



Dear Mr. Wollenberg,

By the time this letter reaches you, may it find you well and listening to God's messages and winks to you as you go through your journey in life.

Neal, if you don't mind, to begin this letter, I would like to state for your thoughts and record that I didn't kill this person or know who did. I am sorry, but I wasn't no goody two shoes, and was lost in this world, where I was blind, foolish and wasn't trying to listen to God. I got pick up on this murder cause this meth and cocaine person told the police that me, her and this other guy named Bethwith went to rob Denise Stawokoski, which whit cocaine person named Goldie Fisher told the police that Bethwith shot and killed this person and this is how my name got involved in this murder case.

Well, I went to trial where the two lawyer I had told me I had nothing to worry about because this person had sex within an hour before she died and more than likely maybe this was the person who killed her, so they called no witnesses for me, checked none of the people who could have verified a lot of the things I could have explained, so I went to trial believing in them and the jury found me guilty. Now being as foolish and stupid, I cry, and thought my life was over. How could I get out? The jury had said (guilty) and I really thought, yes it was it, my life over!!!

So, I lay around in this place feeling sorry for myself, then finally a "Angel" came into my life... and told me I need to take this law class on how to research law... So after I finally passed the class, I filed a motion to the court acting pro-se and the judge granted me every request I asked for which included a DNA Testing Act, Conflict of Interest and mishandling of evidence.

Now let me explain, the prosecutor told the jury that I had blood on my clothes which wasn't mine, so it must have been the victim's blood. Also the prosecutor told the jury that a cigarette butt was found in the back seat of the victim's car and I was the only person who smoked this cigarette. So I asked the prosecutor to send me all of the paperwork so we know what is going to be tested, someone in the prosecutor's office, sent me the paperwork and (it was noted that) the police officer had taken all of the evidence home to his house for three days. WHY? Why would this officer go to the crime lab and sign out all this evidence when that was the proper place for it to be kept properly?

So, I file another motion in court and tell the judge what this officer had done and the judge granted me a new hearing to challenge why this officer had taken the evidence home which is a no-no concerning the handling of evidence (ed. note: Possibly breaking the chain of evidence).

The conflict of interest matter was that my lawyer was representing a client that was going to testify against me (in return for making a deal that would get his sentence reduced). So my lawyer came to me and said, I know someone who is going to testify against you, I need $2500 to make this person go away. So, I gave him $2500 (two diamand rings and a gold watch) to make this witness go away and he gave me a receipt for this. Now I know you have a lot of common sense, but why would God expose all this information to me 15 years later? The prosecutor never told the jury that the police had took the evidence home for three days. The attorney client privilege was violated when he took money from me and the State of Nebraska was also paying his fee to represent me. The prosecutor never turned over the report to the police actions so we could have challenged where this officer tampered with this evidence. Nobody got up on the stand and pointed and said, "Herman Buckman killed this person. The police and the prosecutor wanted me off the streets because I was breaking into drug stores back then and they knew this but couldn't catch me, but to accuse me of murder, no way and I've been here for eighteen years and still say, I didn't do it and if it's God's will for me to stay here, the so be it." Because as much as I hate this place, God has touched my life where I'm serving a purpose.

If I'd had a different lawyer back then, I wouldn't be in prison because the DNA showed there was never no blood on my clothes when the state expert testified for the state. The cigarette butt showed three other people's DNA on it, but the prosecutor told the jury that I alone smoked the cigarette and my lawyer never challenged none of this evidence. If I had just half a lawyer who might have cared about me, I wouldn't be here, because Neal, I didn't kill this person and no matter how things may look, their are explenations for all the things the prosecutor accused me of and can be explained now.

I have God behind me now, Amen...

Sincerely,

Herman Buckman

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