This was not an overstatement by any stretch of the imagination. Since July of the previous year (2008) to April 2009, Bernadette Davy had worked more than 300 cases. That’s a little over 33 cases a month—that is, with a seven-day workweek.
Nonetheless, the final results of the internal investigation found that Davy, whom they referred to in several emails while discussing her cases by her nickname—“Bernie”—had “violated” crime lab policy and procedure.
A fair assessment.
An isolated case is one thing, obviously. But a pattern, of course, is an entirely different matter.
Thus, this one discovery set off a whirlwind of re-analysis of Davy’s cases by scientists in the lab. And as they began to go through her cases, more red flags were raised. One scientist, a man who had sparked the new audit, wrote in an email how he had “noticed some things in a couple of (Davy’s) cases that I have (re)worked that cause me some concern and I need to know if there is a pattern developing.” He listed several of his findings.
Among them was a “weapon worksheet of 6R rifling” that had been noted by Davy “when in fact the weapon was 4R.” In another, “listing of weapon worksheet of ‘safeties OK’ (when) in fact the Lorcin 9mm manual (thumb) safety was entirely missing as well as the safety retainer spring.” A third said Davy had listed on a weapon worksheet a magazine “capacity of 13 but 14 was easily fit.” She had also made note of a “cartridge case worksheet (whose) primer color (was) ‘gold’ when in fact it was ‘silver’ (nickel).”
This particular scientist indicated at the end of his email that these seemingly minor discrepancies, which could be detrimental to a prosecution if discovered by the defense, were “at the very least … concerning.”
A second email I found from another scientist working out of the Central Regional Lab in Dry Branch included a discovery of five additional discrepancies within re-evaluated cases where mistakes had been made. In one instance, Davy described an item in a case as “simply a lead core,” when it “was lead core and several lead fragments.” In another, she made errors of color again, indicating on a bullet worksheet a “non-metallic” substance that was actually “silver/gray metal fragment.”
In another particularly interesting case of re-analysis (especially if you are Tracy Fortson), there was a discrepancy; the scientist re-evaluating Davy’s work found in a “.45 metal jacket bullet (where) Bernie had some agreement (in) … both .45 metal jacketed bullets that ID’ed with each other.” The scientist went on to note how this one piece of misinformation “changed the Conclusion of the related case.”
There was another “change in conclusion” attributed to Davy that a third scientist had uncovered while going through Davy’s old cases. This one involved a word Tracy Fortson was all too familiar with in regards to bullets: “mutilation.” In this case, “Bernie did a (test) on this bullet as a … ‘mutilation.’” But when the scientist went back and looked at it, “In my opinion, there are no definite shoulders visible to measure (the bullet).” Consequently, Davy was saying in this instance, according to re-analysis done by a former colleague, that she was able to measure a bullet fragment and evaluate it, but when he went back to look at it, there was no way that he could. In addition, this particular bullet had “been run over and had abrasions across the entire bullet (and) what was visible of the rifling is very shallow.” In this case, “should a gun be submitted for comparison,” the scientist wrote in the email, “there are not enough discernable characteristics … and very minimal individual characteristics.” He even had another colleague look at the same case and that scientist agreed. The conclusion they came to, if they were ever to be asked about the case, would have to include: “fails to reveal sufficient characteristics to determine what type of weapon it was fired from.”
Which spoke directly to Tracy’s case.
The re-evaluations went on and on, well into June 2009 and beyond. Those scientists taking a second and third look at Davy’s cases found discrepancy after discrepancy. Some extraneous, others more complicated. Either way, the fact that a scientist had made so many errors and admitted to fabricating a worksheet in a case—and then lied about it—was enough to question everything she had ever done, which would have to include the work she did on Tracy’s 2001 case.
“The GBI does not give out info readily,” Tracy explained to me in 2016 (she had no idea then that I had dug up these reports about Davy and the re-examination on her cases, or how many discrepancies I had discovered). “There were times when I had to re-word a request just to get what I was asking for. If I asked for any and all information pertaining to the firearms expert, ballistics, etc., in my case, I would get A) a copy of Bernadette Davy’s ‘Report and Conclusion,’ which consisted of one sentence: ‘The bullet in question is consistent with a .22 CCI brand Stinger’; or B) a copy of the ‘Official Chain of Custody Evidence Report,’ which listed all of the evidence the GBI had and that’s it.”
Meaningless paperwork meant to satisfy Tracy’s request, as opposed to fulfilling it. Why would they not give Tracy Fortson the same documents I had uncovered? She was asking specifically about Bernadette Davy.
Tracy said she “finally asked” the GBI “for ‘the weight of the recovered bullet in grains’ and that’s when I got the letter stating ‘the bullet had never been weighed’—a data sheet with no information on it concerning ‘Item No. 0026 Lead bullet from Douglas B. Benton.’ ”
Another “discrepancy,” at the least, by Bernadette Davy.
THAT 2009 CASE had opened up a can of embarrassing mishaps, became subject to reassessment by the courts, but also made it clear that any of the cases Davy had testified in would now have to be looked at and re-examined. How would anyone know if Davy had only falsified one report? After the 2009 announcement, her entire credibility was now in question.
“I think we’re going to see a lot of inmates saying, ‘This person testified against me,’ and demanding new trials, which is reasonable when a lot of cases come down to the ballistics expert,” Christine Koehler, president of the Georgia Association of Criminal Defense Lawyers, told Online Athens in 2009 after Davy’s fabricated report sheet was made public.
For Tracy Fortson, however, the reality was that she could not see into the future, and Bernadette Davy had just told a jury (in 2001, eight years before the bottom fell out of her career) that, according to the tests she’d run, the gun that fired the bullet killing Doug Benton was found inside Tracy Fortson’s home, along with a box of the same type of ammunition. Tracy and her team, or even SA Lavender for that matter, of course, had no idea that Davy’s entire career would be put into question eight years hence.
“She testified to her findings under oath knowing her results were incorrect in several cases,” Tracy said of Davy, explaining her frustration in a 2017 email to me, after I sent her the documents I had uncovered and she reviewed them. “I was never able to get any worksheets or notes pertaining to my case. I sent several open record requests and got nowhere. Now I can see why they didn’t want me to have them, if they actually existed. In my case, Davy testified that the bullet recovered from Doug had certain lands and grooves, which I have always thought would have been impossible because the bullet was ‘pancaked’ and distorted. How could she make that determination if the bullet was pancaked and distorted? After all these years … and this info was there the entire time. I’m at a loss for words. This is what I needed all along. I’m not sure what to do at this point, but I … credit you for finding this information.”
45.
As Tracy’s trial continued, the DA’s fire debris expert from the Western Regional Crime Lab in Columbus, Brian Hargett, sat in the witness box. After qualifying himself by listing his credentials and extensive training, Hargett explained how he’d examined a section of couch cushion and rug cut from Doug’s residence. Saturated into both household items, Hargett testified, was a mixture of “heavy petroleum distillates,” including “diesel fuel, kerosene, fuel oils and some
other types of products.”
From there, Hargett schooled the jury in fuel oils (which I won’t bore you with here), after which Lavender indicated he was done with his direct examination.
Tom Camp questioned Hargett firmly on the fact that law enforcement never submitted any type of “raw liquids” from either Tracy or Doug’s house, implying that, well, yes, there might have been an ignitable fuel found on the carpet and cushion, but there was no way to tell where it had come from or who actually put it there.
Hargett agreed.
And that was it for the fire debris expert.
The DA’s case was now cruising into its scientific groove of experts coming in and explaining the abundance of forensic evidence it had collected. What’s interesting is that a majority of this evidence did not point at anyone in particular, especially Tracy Fortson, but the implication—because she was the suspect on trial—was always that it had.
Next up was Mary Elizabeth Horton, a GBI microanalysis expert who looked at the paint found in Tracy’s truck, on her mailbox and in her garage and the paint used to disguise the trough, along with any paint scrapings CSSs collected.
Bottom line was, Horton said, the same colors of paint had been used on the watering trough and Tracy’s mailbox, which were later found in Tracy’s possession. But there was no way to tell that a certain scraping of paint had come from a particular can of paint. Calling her work “color comparison,” the only absolute Horton could testify to was that the paints were the same color—which meant absolutely nothing in the scope of proving guilt.
Then, at the very end of her brief period on the stand, Lavender asked Horton about the masking tape found at Doug’s house.
It was the same type of masking tape, Horton said, “recovered at the time of the autopsy.”
“Was there any comparison between those?”
Horton said she had analyzed the backing portion of both sample adhesives and found they were similar.
What did this mean, however? That the same type of masking tape found at Doug’s house was then found inside the watering trough? It did not mean Tracy had used that piece of tape. After all, Horton never mentioned any fingerprints found on the tape. It was another piece of evidence presented for the mere fact of guilt by association. Yet, in the reality of inculpatory evidence, it had zero value.
Camp did an excellent job pointing out in his short cross-examination that all Horton could do was draw similarities and state her opinion; there was “no way” she could “identify that the paint came from a particular can.”
A point of which Horton agreed.
Another factor Camp brought up was the DA’s contention that some of the paint might have been transferred to Tracy’s truck during the process of dragging the trough off the vehicle, so he asked about it: “You did not find any paint on that metal container that would be in any way consistent with these paint scrapings that you were submitted there from the defendant’s vehicle, correct?”
“I did not.”
“No further questions.”
Arthur Anthony, the DA’s document examiner, had been with the crime lab since 1981. His role in this case was to compare the writing of Doug Benton to an envelope and handwritten note, and also “further comparisons of writings of Tracy Fortson back to” the same envelope. Anthony was going to make a judgment based on his experience whether Tracy’s handwriting compared at all to the note allegedly found on Doug’s window and also if Doug’s proven handwriting compared to that same note.
Lavender handed Anthony the actual pieces of evidence. Then asked the crime analyst to explain how he had drawn his comparisons. Anthony stepped down from the witness stand to address several charts, explaining: “My opinion is that the writing on the left-hand side of the chart, which is the letter or note (purportedly left on the driver’s-side window of Doug’s truck), is not comparable to the known writing as contained in the marked State’s Exhibit 47 (Doug’s handwriting).”
After that, Anthony gave a long explanation of how he had drawn this assumption, concluding, “Tracy Fortson probably prepared the writing on State’s Exhibit Number 1 (the note found on Doug’s truck window).”
Probably?
Interesting.
Could a jury vote that Tracy was “probably” guilty?
Anthony then explained how he’d used a “side-by-side comparison.” He talked about arcs and strokes, and how individuals left a distinctive pattern within the way in which they wrote letters. Circular motion was not the same from person to person. He noted in particular the letter “G” and how Tracy’s “Gs” were the same as the “Gs” on the truck window letter.
Under cross, Tom Camp went after the idea that the handwriting expert did not know either Doug or Tracy and his analysis was based on an opinion of seeing those handwriting samples for a first time after the prosecution gave them to him. Moreover, Camp made clear, all Anthony had to work with were samples from Tracy and Doug.
After Anthony answered yes, Camp smartly followed up with: “And you were not given any known handwriting samples to analyze as purported to be the known handwriting samples of Jeff Bennett either, were you?”
“I was not.”
“No further questions, Your Honor.”
When I asked Tracy in 2016 how she felt about what seemed to be a cavalcade of evidence during her trial pointing toward her guilt, she said: “This has been an uphill battle for me since it began. I’ve faced adversity and contradiction for the past 16 years. That’s nothing new. You want me to prove to you that I’m innocent, that’s not so easy, especially when people are steadily trying to discredit everything I say. But hey, that’s nothing new, either. I’ve had experienced professionals trying to prove it and they failed miserably. If proving my innocence was easy, I wouldn’t be where I am.”
As Tracy sat and watched what felt like a piling on of evidence during her trial—a lot of which, I have to agree, seemed to be cut and pasted and designed to see that she was found guilty—she sometimes digressed. Losing her train of thought inside the courtroom, Tracy often went back to her childhood and early adult life. There were lessons—maybe answers, too—for how her life had later turned out, many of which were rooted in her formative years.
46.
Tracy Fortson was 12 years old. She stood outside her Winterville, Georgia, childhood home one afternoon, listening to her mama and daddy argue inside the house. The muffled yelling back and forth, an occasional slam of a door, smack of a table. Not recalling ever hearing a fight between them get this heated, Tracy climbed up on top of a windowsill and peered inside to see if she could better gauge what was happening. Or maybe more to determine if her intervention was needed.
As she focused her vision, cupping both hands around her eyes to block the sun, Tracy saw her parents wrestling on the ground. They were struggling to gain control over an object.
A gun, in fact, Tracy soon realized.
“Daddy was trying to get it away from her.”
Tracy jumped down from the windowsill and ran around the corner and into the house. As she made her way to the door of their bedroom, Tracy watched as “Daddy pushed Mama onto the bed, grabbed the gun from her and then hit her with his fist in the mouth.”
Terrified, Tracy felt as though she had to do something. Protect her mother. Stop the insanity. So she crept up behind her father, who didn’t yet know she was standing just a few feet away.
“Mama was crying.”
Tracy looked left and right, searching for something to use as a weapon to stop him.
She spied a flashlight with a hard plastic handle.
She picked it up.
Then she swung the thing like a bat in the direction of her father’s head.
He turned just in time to see what she was doing and “snatched the flashlight” from Tracy’s hand.
She managed to stop him, however, from attacking her mother. Rattling the old man out of whatever rage-filled tantrum he had been locked in.
As he “came to his senses,” Tracy remembered, her mother ran out of the room.
Tracy followed.
“Mama and I did leave that night,” Tracy explained to me in 2016. “She took me to my (grandparents’) house, but she didn’t stay. Mama seemed afraid of Daddy, but she was even more afraid of what he would do if she didn’t go back. She always said, ‘Things will be worse for me if I don’t go home, honey. Please understand.’ I always thought that it couldn’t get any worse than getting a busted lip, but she was convinced he would kill her.”
As the relationship between her parents unraveled from there, with Tracy’s mother staying, Tracy found solace in taking off and spending time away from home, losing herself—like most kids amid dysfunction—in activities outside the house.
“I rode the dirt roads with (friends) on our motorcycles and sometimes we ended up in another county. I found more people who had horses and we would all ride for hours. I went to the skating rink every Friday and Saturday night and I had friends from school who invited me over to their houses. I was too embarrassed to invite anyone to mine because I never knew when a fight would break out between my parents.”
After Tracy went back home from her grandparents’ in the weeks following that fight, the arguments she witnessed had escalated. As Tracy got older, she realized how “things really were” between her parents. “And it wasn’t good.” She felt for maybe the first time that their marriage was beyond repair.
Then a grace period, when the tension and resentment and anger somewhat relaxed. This gave Tracy the opportunity, she said, to finally invite a friend over for the night.
“You hear that?” Tracy’s friend said. They stood outside. The noise came from inside the house. An all-too-familiar sound of two people arguing.
TARGETED: A Deputy, Her Love Affairs, A Brutal Murder Page 16