Ed. Note: Chris Halkides has been kind enough to try to make us lawyers smarter by dumbing down science enough that we have a small chance of understanding how it’s being used to wrongfully convict and, in some cases, execute defendants. Chris graduated from the University of Wisconsin-Madison with a Ph.D. in biochemistry, and teaches biochemistry, organic chemistry, and forensic chemistry at the University of North Carolina, Wilmington.

The murder of Janice May
Eight-year-old Janice Elizabeth May was attacked at about 4 PM on Saturday, 26 November 1955, in Canton, IL. She later died from her injuries (bleeding and skull fractures). Taxi driver Lloyd Eldon Miller left town shortly thereafter, concerned about the possibility of legal action involving child support. He was arrested in Danville, IL, and Mr. Miller signed a confession at 12:15 AM on 1 December. He was convicted of her murder, sentenced to death, and came within about seven hours of being executed. He was eventually released, and all charges were dismissed in 1971.

The jockey shorts
Two days after the murder, a pair of jockey shorts were found in the Van Buren flats, empty apartment buildings about a mile from the scene of the crime and a few blocks from Mr. Miller’s rooms in the Baxter residence. The shorts were stained with a dark substance. Although her blood could not be typed after the crime, her mother testified that her daughter’s blood type was A. It is known that Mr. Miller had type O blood and was a non-secretor. Leaving the jockey shorts in the Van Buren flats was a part of Mr. Miller’s confession. However, Mr. Miller only wore boxer shorts, not jockey shorts. Moreover, testimony in 1965 from a clothing salesmen indicated that the jockey shorts were too small for Mr. Miller. Trial testimony from the forensic chemist, Forest R. Litterly, indicated that blood was present, that it was human blood, and that it was Type A.

Negative results from Sussman and Martin
Years later, Dr. Leon Sussman determined that the dark stains near the crotch of the jockey shorts did not give a reaction for blood, but his report of 6 December may not have been presented to a court. An appellate lawyer, Willard Lassers, asked microanalyst James S. Martin first to examine some threads from the shorts. “Of the twelve threads, ten appeared to have paint stains…” This result prompted a broader investigation of the shorts using luminol:

“Martin sprayed all areas of the shorts with the bottle of Luminal. There was a diffused general luminescence from the shorts except over those areas containing visible stains and in those areas there was no luminescence whatever. Presumptive tests for blood such as luminol typically give few false negatives; therefore, a reasonable inference is that there was no blood or that there was highly diluted blood that was uniformly distributed over the area showing diffuse luminescence. Mr. Martin did not want to come down in favor of one of these conclusions or the other. He disfavored the hypothesis that the blood would become undetectable over time.

Other blood-related results and related matters
The Harding memorandum about the shorts and paint cans makes it clear that the prosecution knew that the shorts had paint. This memorandum was uncovered by the defense subsequent to Dr. Sussman’s tests. The memorandum hypothesized how the paint might have been used to camouflage blood stains. Yet the prosecution never disclosed this information to the defense or to the jury. When the prosecutor Blaine Ramsey was cross-examined, he was asked about the stains on the shorts. Ramsey responded, “Oh, I knew that all of them were not blood; yes sir.”

Mr. Ramsey’s words were ambiguous in that he might have meant that not all of them were blood. When Assistant Prosecutor Robert Hayes made his final statement in the habeas proceedings, he “took the position that it had been obvious to all in 1956 that the stains on the garment were paint.”

In Miller v Pate, the Supreme Court wrote, “In argument at the close of the habeas corpus hearing, counsel for the State contended that ‘[e]verybody’ at the trial had known that the shorts were stained with paint. That contention is totally belied by the record…The prosecution’s whole theory with respect to the exhibit depended upon that misrepresentation. For the theory was that the victim’s assailant had discarded the shorts because they were stained with blood.”

The conduct of the prosecution
The Illinois State Bar wrote a report in defense of Prosecutor Ramsey. It is extremely difficult to square the state bar’s version with what the prosecutor said, as recounted in Miller v Pate. For example: “The record of the petitioner’s trial reflects the prosecution’s consistent and repeated misrepresentation that People’s Exhibit 3 was, indeed, ‘a garment heavily stained with blood.’” As the Supreme Court indicated, the reason to discard shorts was that they were incriminating.

A better argument for the prosecutor than the ones given by the state bar is that he relied upon Mr. Litterly’s testimony, which may have been false. However, a more careful investigation would have probed the question of which part of the garment Mr. Litterly tested, and would have ascertained how many spots were paint and how many might have been blood.

Whether or not the prosecution believed that the shorts were stained only with paint or stained with paint and blood is a difficult question to answer. But even if one believes that only exculpatory evidence should be turned over, the existence of paint was exculpatory. A juror might have come to the conclusion that most of the stains were paint and that only a small portion was stained with blood.

Conclusions with respect to the shorts
The results with luminol all but rule out that there was blood on the shorts. The argument that there was blood covered by paint does not explain why Mr. Litterly’s test for blood was positive but subsequent tests were negative. There were two reports in the forensic literature that indicated that luminol can detect blood underneath paint in circumstances that were different from the Miller case. It is uncertain whether or not the prosecution had performed a chemical analysis to show that the stains were paint, although one summary suggests that they did. It is unclear why Mr. Litterly’s test results were positive, but no evidence ties these shorts to Mr. Miller or to the crime.

Hair evidence
A pubic hair from the victim did not match a sample taken from Mr. Miller after his arrest (Lassers, pp. 153-154). Mr. Miller was told otherwise during his interrogation, and his lawyers did not know of the existence of this hair until eight years after his imprisonment. Forest R. (“Jeff”) Litterly could not form an opinion on whether or not hair found on the shorts was the same as Mr. Miller’s. In an opinion from 31 December 1963 the United States district court wrote, “The State did have in its possession evidence that a particle taken from the vagina of the victim was probably a human hair but was not one belonging to petitioner. That evidence was of no consequence and did not prejudice petitioner’s case.” This is a remarkable statement.

False confession
Mr. Miller’s confession was inconsistent with Janice May’s wounds, the railroad timetables, and with his known whereabouts on the day of the murder, according to the family from whom he rented his living space. Surprisingly Lloyd Miller’s confession was acknowledged as false in the pre-DNA era.

Examination of the physical evidence as a right
Justice Potter Stewart wrote, “Prior to his trial in an Illinois court, his counsel filed a motion for an order permitting a scientific inspection of the physical evidence the prosecution intended to introduce. The motion was resisted by the prosecution and denied by the court.” Mr. Lassers later reflected that it was his “secret hope that the Supreme Court would use the Miller case as a vehicle that, as a constitutional matter, the defense has a right to examine the physical evidence in the hands of the prosecution.” In retrospect both the dubious paint evidence and the exculpatory examination of the pubic hairs were of obvious interest to the defense. If the Supreme Court had upheld a right of examination, the Miller case might be remembered in the same way as the Gideon and Miranda cases are.

For further reading

Scapegoat Justice Willard Lassers (1973) Indiana University Press (Bloomington and London).

Tenth Stay at Midnight Lloyd E. Miller, Jr. (2000) 0-7388-3464-5 Xlibris Corp.

The Vindication of a Prosecutor The Journal of Criminal Law, Criminology, and Police Science
Vol. 59, No. 3 (Sep., 1968), pp. 335-337. DOI: 10.2307/1141757.