PROSECUTION FINISHES

At 9:07 on Tuesday, June 20, the jury took its seats for day six. When the prosecution would rest its case later in the day, Legghio would move to have all charges dismissed, but first he had one last cross-examination to perform.

Lynne Helton took the stand, again.

After a few technical questions about how she conducts tests, Legghio asked: "The amount of DNA needed to get a profile is very, very tiny?"

"Correct."

And she went on to explain just how tiny "very, very tiny" is. One gram, about one twenty-eighth of an ounce, is 1,000 milligrams, she said. One milligram is 1,000 micrograms. One microgram is 1,000 nanograms. And just

1.25 nanograms of DNA is enough to get a matching profile.

In other words, just over one-billionth of a gram of Leann Fletcher's DNA was needed to confirm that it was, indeed, hers.

She confirmed for Legghio that Leann's DNA was found on the gun and the magazine, and that both her DNA and Fletcher's showed up on his tie. She said that while tests show a match for DNA, they can't tell you whether it is from skin cells, blood or other fluids.

She said they were able to extract enough DNA from the Oxford shirt to normally get a profile, yet "I did not detect any genetic information in this sample."

Why not?

"Occasionally it happens. There are no guarantees we will be able to get a DNA profile from the evidence we are given."

Could it have been somebody else's DNA on the shirt?

"Correct. There was no way for me to tell anything about the source of the DNA on that shirt."

She then combined the blood from three separate stains of what were thought to be high-velocity blood mist, and ran another test. She still could not get a match?

"Correct. I didn't detect any quantifiable stain." "You weren't able to find any quantifiable DNA?" "That is correct."

On redirect, Helton told Townsend that she was able to determine that there was, indeed, blood on the shirt, having conducted a test for heme, a molecule that is part of hemoglobin and helps carry oxygen.

"In your opinion, was that human blood?" "Yes."

Legghio then asked her when she conducted the DNA testing. "May 30." That was just a week before the trial began.

"Did you know the trial began on June 5?" "Yes, I did."

"When did you get the samples?"

"We received them at the lab on April 30."

And then she told Legghio that, as per national testing standards, she had kept enough of the cut-out portions of the Oxford shirt to conduct a second test, but there hadn't been enough time to do so before trial.

She was excused.

At 9:57 a.m., Townsend said: "At this time, the people would rest."

More damage had been done in the jury's mind. The Oxford shirt was central to the case. The prosecution had proclaimed nine months earlier to the press that the blood mist on the sleeve would prove Fletcher to be a cold-blooded murderer. Yet, it didn't get to the police lab until more than eight months after the shooting? And when the first tests for DNA came back as a bust for the prosecution, there wasn't enough time to do a second test? The impression was building in the jury's mind that this was a bungled investigation.

And they wondered, they would later admit, how Woodford could see so much blood and put in so many straight pins on a shirt that could fail the DNA tests so convincingly.

*

As with many of the goings-on at a trial, there was much more involved with the

shirt than met the eye. Townsend assumed all along that the shirt would be the smoking gun—or, more accurately, the direct result of the smoking gun. The press had been told, and had trumpeted the news way back in August, that blood mist on the shirt proved Fletcher a killer.

But just a week before the trial, they had to swallow the news that there was so little blood on the shirt—contrary to Woodford's assertions with all his pins— that they couldn't even get a DNA match.

The testing and the timing tell an interesting tale. Soon after Fletcher's clothes had been confiscated, the defense had filed a motion to quash the search warrant, saying it was defective, and to give back the clothes. Ultimately the motion was denied and the warrant deemed proper by a judge.

That was the first stage of a long process of wrangling over the shirt. Legghio didn't want it tested—he fully expected Leann's blood to be there, he just thought it wouldn't be high-velocity mist and that he'd be able to argue against its culpability—but the letters D, N and A resonate powerfully in a jury's mind. They hear "DNA match" and they start thinking "guilty."

So Legghio told Townsend he would agree to a stipulation that the blood on the shirt was Leann's. But he never got around to signing it. He was stonewalling, a delaying tactic that he figured couldn't hurt. Townsend would ask about the stipulation, he'd give the right answer, then never get around to doing anything about it.

Trial was approaching. Finally—to Legghio's surprise, he says—Fletcher himself ordered the shirt tested.

"Are you sure?" said Legghio. "I want it tested."

Legghio would later say that Fletcher's demand "was much to our shock. I said, 'Are you sure you want this DNA flag going around the court that you've got her DNA on your shirt?' But he said, 'I want it tested. I'm instructing you to have it tested.'"

It was Townsend's turn to be shocked, when in late April Legghio called him and told him he'd be signing no stipulations. Go ahead and test it for DNA.

The shirt got to the lab on April 30. The week before trial, Townsend got the

stunning news. Like so much else at this trial, things were not what they seemed. The gun wasn't smoking. It wasn't a gun, at all. For trial purposes the shirt was once again just that, a shirt.

*

The court came back from recess at 10:40 and Legghio promptly made motions, based on what he said was a lack of evidence, to dismiss charges against Fletcher in the death of the unborn fetus, and for Judge Cooper to order a directed verdict of not guilty on the first-degree murder charge.

The charges regarding the fetus were dismissed, as everyone knew they would be all along. Some critics of Cooper thought she should never have let the jury hear them in the first place, so preordained was their eventual dismissal. Moreover, they might constitute grounds for an appeal if Fletcher were found guilty of the murder charge. (In fact, one juror would later say he wanted a conviction for first-degree murder because the unborn baby had died, too, so he wanted Fletcher to go to jail for life.)

The Michigan law Fletcher was charged with involves an assault on a woman that subsequently results in stillbirth or miscarriage. But the prosecution's own witness, Dr. Dragovic, had testified that in this case, neither event happened. According to Michigan criminal law statute miscarriage is when a fetus is born alive, then dies. Stillbirth is when a dead fetus is expelled from the womb. Neither event had happened with Leann's fetus. Legislators would later rewrite the law to include the death of fetuses not stillborn or miscarried, but Fletcher was off the hook.

"I can't send it to a jury," Cooper said. "That's not my philosophy. That's the statute."

As for counts three and four—first-degree murder and using a firearm in the commission of a felony—Cooper was succinct. "There is sufficient evidence to go to the jury to make these deliberations. Therefore, the motion is denied."

Legghio then moved for the judge to declare a mistrial. He said the DNA evidence came back too late, just a week before trial, for him to properly respond, that the prosecution had the shirt all that time and delayed getting its

work done. It wasn't fair. It wasn't right. A mistrial was in order.

It would have been a master stroke had it worked, but it didn't. After all, by his own admission months later, his own game of cat-and-mouse with Townsend had resulted in the test being done so late.

The judge would have none of it. The motion was denied. After recess, Legghio would begin his case. The Miseners thought Townsend had done well. The jury, though, went out thinking, as Rob Jensen would later say: "That's it? That's all they have?" The prosecution had been battered. Townsend's best evidence now seemed irrelevant, his witnesses largely discredited. And Legghio had yet to put a single witness on the stand.