Guilty until proved innocent
Melbourne Age Date: November 4 2002
Jim Bromgard was wrongly convicted on suspect scientific evidence and sent to jail for 15 years. The problem is, there are thousands of others like him in the US. Caroline Overington reports.
On his first day out of prison, Jim Bromgard went to a special restaurant for a steak and onion rings. When the waitress set the table, he said: "Hey, wow, look, a fork."
A fork?
"A fork, not a spork," he says, still happy at the thought. "It was a fork, not a spoon-fork. Like a spoon, with round edges, and little points on the end. That's what they gave us in prison."
So Bromgard picked up the fork and started using the edge of it, to cut up his meat. His girlfriend, Deliah, who is watching him tell this tale, decides to finish it for him.
"I said, Jimmy, you know you can use a knife now," she says, breaking into laughter.
A knife! Bromgard had not seen one of those for 15 years, not unless you count the ones people use in prison fights. His eyes light up.
"He was like a kid," Deliah says.
"He was like a kid in a lolly shop."
Bromgard and his girlfriend are sitting at the kitchen counter at her mother's place in Kalispell, Montana, where they are now living. It is his 21st day out of jail.
"He was 18 when they locked him up," says Deliah, opening the pages of an old photo album. "Look, here he is the day he went in."
She is pointing at a picture of a very young man. A boy, really. It was taken on the steps of the Billings courthouse in Montana, just moments after Bromgard was sentenced to 40 years' prison for the rape of an eight-year-old girl.
"I went into court thinking, they can't find me guilty because I didn't do it," Bromgard says.
"But they did find me guilty. So maybe I was in shock. But I kind of accepted it. I thought, this is the hand I've been dealt."
Bromgard's relaxed approach to the 15 years he spent in prison is remarkable because, as he said, he was not guilty. He did not rape that girl. Now, at 33, his conviction has been overturned, and he has been released.
You would expect him to be bitter, but he presents himself as just about the happiest and most level-headed person you are likely to meet. He bears no malice towards the system that wrongfully convicted him, nor towards the forensic scientist who gave bogus testimony that led to his conviction.
"I'm just happy," Bromgard says. "Happy that things worked out right in the end."
I ask Bromgard what he finds most strange about a world he has not seen since he was 18.
"Everybody asks me that," he says. "They want to know if it's weird. It's not weird. It's just different. I think of it like it's just like being in another country.
"But I'm pretty happy about it, obviously." He is smiling in a way that will become familiar over the day we spend together: warmly, gently, as if the things that have happened to him don't matter at all, now that the nightmare is over.
Even before he went to jail, Bromgard got a rough hand. When he was a boy, he found out that his mother's husband was not his father. His stepfather was soon out of the picture, too. Then his mother remarried, and that didn't last either.
About the time of the second divorce, Bromgard started "sneaking out of the house, going on joy rides". By the time he was 15 he was in a boy's home and at 17 he was in jail.
"So I was in prison, and they came to me and said, do you want to do a line-up? And I said sure, because they always want people for line-ups," Bromgard says. "But the girl picked me out."
The girl was from Billings, Montana. She had been raped by an intruder who came in through the window. Police had no suspects, but one of the detectives thought the girl's description of the rapist matched Bromgard. The detective checked the prison records, and found that Bromgard had been out of jail - albeit briefly - when the girl was raped, and had been living in the same street.
"So once she picked me out of the line-up, they said, can you give us some hair samples, so I gave them some hair samples," he says. "And then they came and arrested me and said: it's for child rape."
The way Bromgard tells the story, he was not too worried, because, "like, I didn't do it". He was broke, so the court gave him a lawyer, John Adams. "We all used to call (him) Jailhouse John because he never got anybody off. The first day I saw him, he said, plead guilty, I'll get you a deal. But I said, I'm not going to plead guilty, I didn't do it. So I guess he gave up on me."
The record shows that Adams was late to court; he arrived with a blank pad, gave no opening statement, asked no questions, presented no witnesses, and cross-examined none of the prosecution's testimony.
The record also shows that the victim, who had picked Bromgard out of the line-up, was not sure that she had the right man. A videotape shows her saying that she is "60, 65 per cent sure" that Bromgard was the man who raped her. In court, the prosecutor, David Hoefer, asked her to "quit using percentages. How would you describe how sure you are?"
"I'm not too sure," she replied.
The case would come down to scientific evidence. In 1987 the technology was not available to DNA test semen taken from the girl's underwear, but detectives found head and pubic hair on the sheets.
The prosecution called the chief hair expert of the Montana Crime Laboratory, Arnold Melnikoff, to the stand. He testified that the hair found at the rape scene was "microscopically indistinguishable" from Bromgard's hair.
He said there was only a "one-in-100 chance" that the head hair was not Bromgard's, and a "one-in-100 chance" that the pubic hair was not Bromgard's. And then, in testimony that makes modern experts gasp, he said, "so, if you find both head and pubic hair, you multiply the odds together, and you get one in 10,000."
Despite the fact the calculations were incorrect, there was no database of human hair types for comparison.
Regularly bashed because he was a convicted child rapist, Bromgard fought back and regularly found himself in solitary confinement.
"But I didn't mind. I wanted to be on my own. I needed to blow out all my steam," he says.
At this point in the conversation, Deliah starts to cry, while turning the pages of Bromgard's album. The photographs show a boy turning into a man, with his hair growing long at the back and thin on top, and his arms filling up with prison tattoos, including one on which he marked off the years behind bars.
Bromgard refused to accept his conviction and set about proving his innocence. He pinned his hopes on an appeal and, in 1989, he wrote to the Department of Corrections to ask when it would be heard, but they wrote back, saying: "You've had your appeal. Your lawyer didn't show up."
"Old Jailhouse John," Bromgard says. "He was probably in the pub. But at least it meant that I could apply for a new appeal, on the grounds of ineffective counsel."
Through that process, Bromgard discovered The Innocence Project, which two New York lawyers set up in 1992 to run appeals for inmates whose cases hinge on scientific evidence. The group comprises enthusiastic law students from the Benjamin Cardozo School of Law in New York.
Unfortunately there was a six-year waiting list and Bromgard put the whole thing out of his mind.
A few years later a student from the project rang Bromgard and said he was taking up his case, but needed $6000 to do the DNA testing.
"I said, I haven't got $6000. I've been in prison since I was 18. I make $1.25 a day, cleaning the halls. So I thought, that's that."
But the staff at The Innocence Project decided to take on the case free of charge. The semen samples were sent for DNA testing and a copy of Melnikoff's testimony was sent to several hair experts in the United States.
"I was shocked when I saw the testimony," said Professor Walter Rowe, one of the world's leading forensic experts. "I'd never seen anything like it. He just plucked the numbers out of the air."
The other experts agreed, telling the court in a peer review paper that: "Mr Melnikoff made up those statistics. It would appear that he deliberately ignored the scientifically accepted practices to help secure a conviction."
Then the results of the DNA tests came back: it was not Bromgard's semen on the victim's underpants. He was an innocent man.
The co-founder of The Innocence Project, Peter Neufeld, says it is not the first time that a man has been exonerated after Melnikoff's evidence was found to be flawed. In 1997, a judge in Silver Bow, Montana, overturned the conviction of Chester Bauer, who had been serving a 20-year sentence for aggravated assault and rape. The evidence Melnikoff gave in that case was virtually identical to the evidence he gave in Bromgard's case.
"Our fear is, there are many more," Neufeld says. "It's deeply troubling. Melnikoff says he testified in hundreds of cases. How many times has he done this? We don't know."
Neufeld wants the state of Montana to conduct an audit of all cases where Melnikoff gave evidence, but the Attorney-General has refused.
"There are flaws in the system, and governments don't want to do anything about it. I mean, Mr Bromgard's case is not rare or isolated. There are hundreds of people like him."
Neufeld is not exaggerating. Over the past 10 years, The Innocence Project has worked to free 114 people from prison in the United States, using DNA evidence.
Bromgard started his new life as a free man with a kiss. When a judge in Montana released him, Deliah was waiting in a car behind the courthouse, a trembling mess.
"But he just opened the door and got in, and we had the most wonderful, wonderful kiss," she says.
The couple had met three-and-a-half months earlier, when she was living a quite different life, as a mother of three children in an abusive relationship. She started writing to Bromgard in prison and, within eight weeks of his first letter, she had left her husband, and moved into the spare room at a friend's place.
The couple spent their first days of freedom at a resort with hot springs, and then moved to Kalispell, where Bromgard has a job washing dishes in Deliah's parents' restaurant. And he is looking for more work.
The law in Montana prevents him from taking a civil action for wrongful imprisonment. All he got when he walked out of prison was $US100 ($A180) "gate money", which he spent most of on his first, special, dinner with Deliah.
"I'm really hoping that somebody will give me a second chance and give me a job," Bromgard says. "I can learn quickly, and I work hard."
He is now trying to decide what he wants to do with his life. "I just have this feeling that I want to see and do everything, more or less. Maybe we'll have a baby. I'd like to go hunting. But first I want to get an X-box for computer games. And then there's Christmas. We only got turkey loaf in prison. This year, Deliah says we're having the real thing."
Caroline Overington is The Age New York correspondent.