Analysis
Case of Iranian on death row raises reasonable doubt about U.S. justice -- part 2 of a 4-part series
By Bill Conroy
Online Journal Contributing Writer


Aug 4, 2006, 00:12

Testing the theory

The DNA tests obtained by Ashkan Panah since his conviction were conducted on materials gathered from his apartment as well as from his body and the body of the victim, Nicole Parker. (For reasons unknown, the suitcase the body was found in was never tested for fingerprints by the LAPD.)

Additional evidence released by the prosecution since Ashkan Panah�s conviction shows that the handling of the crime scene itself was, at best, like a Comedy Central episode of Reno 911.

Crime scene investigators removed the victim�s body from the suitcase in Ashkan Panah's apartment and then dumped it on his bed where it was examined on top of a sheet that was allegedly found wrapped around the victim�s body. Then the crime scene evidence from the bed, including Ashkan Panah�s robe, was wrapped up in one bundle and sent off to the LAPD lab for further testing.

The obvious problem with the procedure is that biological material from the victim could easily have been transferred to the sheet, robe and other bedding material either during the examination of the body or as part of the bundling process.

During the trial, Ashkan Panah�s defense team never requested that DNA evidence be presented at trial (over Ashkan Panah's objections), according to court records. In fact, the judge in the trial, in a special hearing requested by Ashkan Panah, refused to overrule his attorney on that issue. Ashkan Panah�s attorney argued that the DNA evidence would only make the prosecution�s case against his client more damning, court records indicate.

The prosecution, knowing full well that the DNA tests would work against their case, chose instead to present testimony from �experts,� who provided their opinions on the physical evidence. Among those experts was a serologist (a blood-work specialist) with a bachelor�s degree in biology who only two years earlier had been assigned to the LAPD�s narcotics and alcohol analysis unit. He had never before worked on a death sentence case.

Still, with confidence, that expert, William Moore, testified under oath that blood and body fluid evidence obtained from the crime scene were �consistent� with a mixture of body fluids taken from Ashkan Panah and the victim. That left the jury with the impression that there was physical evidence linking Ashkan Panah to the sexual assault.

Following is an excerpt from the California Supreme Court�s opinion in the Ashkan Panah automatic appeal:

Moore�s analysis of the tissue paper found in the wastebasket in defendant�s bathroom revealed that the paper contained semen stains consistent with defendant [Ashkan Panah] and high amylase activity consistent with [the victim]. The stains were consistent with the product of oral copulation.

That interpretation presumes a mixture of body fluids, and leads the jury to believe that there is evidence that Ashkan Panah sexually assaulted the victim. But it flies in face of the DNA evidence, which the jury did not have access to at the time of the trial.

�The DNA results contradict the State�s assertion that the sample from the tissue contained a mixture of body fluids from Hooman Panah and [the victim],� states a 2004 report by Lisa Calandro, the DNA laboratory supervisor for Forensic Analytical.

Ashkan Panah�s attorney retained Forensic Analytical, an independent California-based laboratory, to examine the DNA evidence that was released by the LAPD years after his client was convicted.

In addition to hair, blood and fingernail samples from Ashkan Panah and tissue swabs (described in the DNA report as a �sexual assault kit�) from the victim, the evidence examined consisted of a bed sheet (the same sheet that the victim was examined on), a tissue from a bathroom wastebasket, and Panah's blue robe (also referred to as a blue silk kimono).

According to the Forensic Analytical report, none of that evidence produced a DNA match linking Ashkan Panah to the sexual assault.

�As there was no evidence of body fluids from Hooman Panah on items contained in the sexual assault kit of [the victim], the biological evidence analysis does not corroborate a finding of sexual assault,� Calandro states in her 2004 report. � . . . DNA analyses performed on fingernail samples from Hooman Panah yielded Mr. Panah�s own DNA type. . . . No types foreign to Mr. Panah�s own types were detected.�

Earlier this year, the LAPD released yet another batch of DNA evidence from its vaults. A follow-up analysis prepared on May 25, 2006, by Keith Petersen Inman, a senior forensic scientist from Forensic Analytical, states the following with respect to the sheet, tissue and bathrobe:

No biological evidence exists to support the hypothesis [advanced by the prosecution] that a mixture of biological fluids from Mr. Panah and [the victim] was present on the tissue, bed sheet, or kimono [the blue robe]. It is my opinion, based upon the forgoing, that there is no evidence to suggest intimate sexual contact between Mr. Panah and the victim.

The fact that DNA evidence, prepared originally by the LAPD, shows no evidence that Ashkan Panah had sexual contact with the victim raises serious doubt about the prosecution�s contention that he sexual assaulted her prior to the murder. In fact, the sexual assault established the legal �special circumstance� under California law that allowed the jury to return a death sentence against Ashkan Panah.

But the DNA tests alone don't prove innocence in this case. Those test results show that there is no evidence that Ashkan Panah sexually assaulted the victim, but they cannot prove conclusively that he did not commit the murder.

(In fact, Ashkan Panah's trial attorney argued that there was insufficient evidence to even conclude that the victim was sexually assaulted. But in the automatic appeal, the California Supreme Court disagreed and ruled that the �evidence was more than sufficient.�)

It is still possible, however unlikely, that Ashkan Panah committed the crime but left no traceable evidence on the victim or on the items gathered from the apartment where the body was found.

However, in the U.S. justice system, Ashkan Panah does not have to prove his innocence. The burden of proof to provide �sufficient evidence� to demonstrate guilt beyond a reasonable doubt falls on the prosecution -- a tenet of U.S. law that takes on an even greater urgency in a death sentence case.

That is why the distortion of the physical-evidence findings presented by the prosecution at Ashkan Panah�s trial is so damaging to the cause of justice in this case.

The truth, based on the newly uncovered DNA evidence, is that the prosecution cannot prove beyond a reasonable doubt, based on the physical evidence in the case, that Ashkan Panah sexually assaulted the victim.

That also means the prosecution cannot rule out that someone else committed the assault. And if that�s the case, then it also stands to reason that someone else could have committed the murder.

The ring

Even with the DNA evidence now in hand, there still remain a few strands of evidence that the prosecution exploited in order to connect Ashkan Panah to the murder.

At trial, a doctor with the Los Angeles County Coroner's Office testified that scratches on the inside of the victim's thighs were �consistent with having been made by the defendant's ring.�

However, Ashkan Panah argues that his trial lawyers failed to argue that his ring could not have made the scratches and also failed to call an expert witness to establish that fact. Ashkan Panah also contends that he had not �worn the ring for a long time,� according to the pleadings in his automatic appeal to the California Supreme Court.

No DNA evidence or other forensic evidence, beyond the coroner's opinion, was produced at the trial by the prosecution to establish that the ring made the scratches. The ring was introduced into evidence on the word of a detective, who claimed he had taken the ring from Ashkan Panah the day of his arrest. Ashkan Panah's attorney's challenged the introduction of the ring into evidence on the basis of the detective's word being hearsay, but the Supreme Court ruled �even if the trial court erred in admitting the evidence, the overwhelming evidence of defendant's guilt renders any such error harmless.�

That so-called �overwhelming evidence� is now cast in a long shadow of doubt with the release of the new DNA evidence. As a result, any trial court �error� with respect to the ring takes on significant potential for �harm� to the cause of justice in this case.

In addition, an independent analysis of the autopsy results on the victim by well-known forensic pathologist Michael Baden, M.D., concluded that the same coroner who indicated the scratches were consistent with Ashkan Panah's ring also made a significant error in her conclusions about the victim�s death. That Los Angeles County coroner, Medical Examiner Eva Heuser, stated at trial that the cause of the victim's death could have been the �injuries to the neck or the result of sodomy,� according to the California Supreme Court�s ruling on Ashkan Panah�s automatic appeal.

�She [Heuser] was unable to state a time of death but did opine that death would have taken at least half an hour,� the California Supreme Court ruling states.

Baden concluded, however, that �the full autopsy and the examination of the microscopic slides showed that the sexual assault did not produce injuries sufficient to cause death.�

Heuser's opinion about the ring, drawn from the same autopsy evidence examined by Baden, must be taken with a heavy grain of salt in light of Baden's conclusions about the cause of death -- particularly when it was in the prosecution's interest to assure that the victim's death could be attributed to the sexual assault, thereby creating the special circumstances required under California law for a death sentence. It might also be argued that it was in the prosecution's interest to produce opinions at trial, regardless of the actual physical evidence, that linked Ashkan Panah's ring to the scratches.

But we also have to reconsider the prosecution�s evidence for seeking a murder conviction absent the forensic evidence connecting Ashkan Panah to the assault.

If the jury believed he did assault the victim based on forensics, then it is an easier leap for them to believe witnesses, regardless of their biases, who suggested he also murdered her.

The major witness against Ashkan Panah was his girlfriend (now ex-girlfriend). Ashkan Panah showed up at her apartment on Sunday, Nov. 21, at about 9 a.m. The night before, according to the court record, Ashkan Panah had attempted to commit suicide by slashing his wrists with a knife. The prosecution pointed to that act of desperation as a sign of Ashkan Panah�s guilt.

His girlfriend testified for the prosecution that Ashkan Panah had made incriminating statements to her after he showed up at her apartment on Sunday morning. For example, the girlfriend testified, according to the U.S. Supreme Court opinion in the automatic appeal, that Ashkan Panah said �he had done something very bad.�

Ashkan Panah claims she twisted his words. He contends the words he used were �they had done something very bad.� Panah adds that he and his mother had received telephone threats prior to the victim�s murder. In fact, those threats were recorded and provided to the prosecution, but never admitted into evidence in his trial.

The following is from Ashkan Panah�s habeas corpus filing now pending before the California Supreme Court:

Some people expressed a strong desire to seek revenge against Petitioner [Ashkan Panah], and thus had a motive to set him up. For example, [an individual] called him some time before the homicide stating:

I punish you.
It�s me and you . . . battle.
Like a man. Engage in battle with me. Come, like a man.
Dude, I�ll f*cking tear you apart . . .

 . . . And tell your mom the only reason I don�t kill you is because of her. But I�m gonna bust you up a little, to make you pay the price.

By Saturday early evening, Ashkan Panah also was aware that the police were looking at him as a suspect in the victim�s disappearance.

So it could be argued that the source of Ashkan Panah�s anxiety was not due to guilt or fear brought on by a crime he actually committed -- as the prosecution might contend -- but rather that he was pushed to a state of extreme stress due to paranoia and the belief that he was being set up to take the fall for a crime he did not commit.

In addition, Ashkan Panah had a history of depression, according to medical testimony presented at his trial, and had previously attempted to commit suicide.

From the California Supreme Court�s ruling on Ashkan Panah�s automatic appeal:

In 1984, after the death of her parents, Ms. Monfared decided to leave Iran with defendant [Ashkan Panah]. She had been fired from her job because of her disagreement with the government over its treatment of women. At one point, Ms. Monfared was put in jail by the government. Also, while they were in Iran, the country was at war with Iraq. Defendant was so frightened by the bombing of Tehran that he wet himself at night. Ms. Monfared was afraid that defendant might be taken to war. She also wanted more opportunity for him. For all these reasons, she wanted to take him out of the country. Defendant, however, wanted to stay in Iran where he could have a relationship with his father. They first went to Turkey where they lived for two years while Ms. Monfared attempted to gain entry into the United States. . . . At one point, during their sojourn in Turkey, they went to Cyprus where Ms. Monfared attempted unsuccessfully to obtain visas to the United States. While they were in Cyprus, a man tried to rape her in the hotel room she was sharing with defendant. Her yelling woke defendant, who was very frightened. The man struck them and left.

We cannot determine for sure whether Ashkan Panah�s girlfriend twisted his words to make it sound like he made incriminating statements about the victim�s disappearance. But we can look to clues about the girlfriend�s character based on her actions at the time the statements were allegedly made to her.

According to court records, Ashkan Panah showed up at her apartment with slashed wrists early Sunday morning. Rather than seeking medical help for him immediately, she instead drove him to a drug store to buy sleeping pills. She then allowed him take an overdose, and only after he was drugged up from another attempt at suicide did she claim to hear Ashkan Panah utter the incriminating statements. Then she decided to call the police.

A case certainly can be made that anything that Ashkan Panah said to his girlfriend in a suicidal, drug-induced state really can't be considered sufficient evidence for the sake of putting him to death.

The other damning testimony against Ashkan Panah comes from the cops who interrogated him after he was arrested at his girlfriend�s apartment. During that questioning, too, Ashkan Panah was doped up -- and, he claims, beaten and his words twisted by his police interrogators.

A note in the prosecution�s files related to one of the police interrogations was only turned over to Ashkan Panah�s attorney after his conviction. The note, in which Ashkan Panah refers to �men in hoods,� is telling in that it indicates that Ashkan Panah was not in a normal state of mind while being questioned.

Following is some of the text of that note:

 . . . (? Did you hurt the little girl Nicole?) Not me -- They did. (? Is she alive?) I don�t know -- no. The dragon fly in hand is good too.

[Suspect] would speak in a foreign language.

But there are other reasons to doubt the word of the prosecution in the Ashkan Panah case, besides the suppression of the DNA tests and the distortion of the physical evidence that it condoned.

For example, Ashkan Panah points out that one of the prosecuting attorneys in his case was Patrick Couwenberg. Two years after Ashkan Panah�s conviction, Couwenberg was appointed as a judge in Los Angeles Superior Court.

Several years later, though, he had a sudden fall from grace.

From a 2001 Associate Press story:

A judge who falsely claimed he had once worked for the CIA in Laos and fought in Vietnam was ordered removed from the bench Wednesday.

The state Commission on Judicial Performance found Los Angeles Superior Court Judge Patrick Couwenberg guilty of willful misconduct in office, conduct prejudicial to the administration of justice and improper action under the state constitution.

�He lied to become a judge, elaborated on his misrepresentations for his enrobing ceremony and subsequently lied to the commission in an apparent attempt to frustrate its investigation,'' the commission said in an order signed by Chairman Michael A. Kahn.

Couwenberg's attorney, who admits his client is a compulsive liar but says it is because of a curable mental condition called �pseudologia fantastica,'� said Couwenberg has not decided whether to challenge the decision.

Couwenberg and the other attorneys on the prosecution team were not alone in their ethically challenged behavior, according to Ashkan Panah�s habeas pleadings. Another piece of evidence turned over to his attorney by the prosecution after his conviction was a handwritten note that appears to show that the LAPD police were suppressing evidence.

�This handwritten note was found in the early part of the discovery material. It states that �all paper-clipped areas are documents which have been withheld� from the defense, and is directed to Detective Duane Burris, Los Angeles Police Department,� state the habeas pleadings.

Finally, Ashkan Panah�s attorney also raises a serious doubt about the impartiality of at least one member of the jury in his client�s trial.

� . . . One of the jurors was a member of the same church as the deceased�s family and his children had attended the same school as the deceased,� the attorney states in the habeas pleadings.

Next, Part 3: Alternative theory

Part 1: The Crime