Ernesto’s Story

RELEVANT CHRONOLOGICAL FACTS OF HIS STORY.

ERNESTO’S MISTAKEN ENCOUNTER.

Note: In order to protect the identity of the victim in this case, we will be using the pseudonym “Victoria”.

  In or about July 1993, Ernesto met Victoria a loan officer for a Bank branch in the City of Coral Springs, Florida. They went out a couple of times and although they were both married, they ended having consensual intercourse on one occasion. Even though Ernesto promised Victoria that he will see her immediately after he returned from an out of State trip, he never contacted her again nor he returned her phone calls. (See case number: 98-006623-CF10A).

  However, a week or so after their consensual encounter, a sexual battery was committed upon Victoria in her apartment. As part of the collection of evidence in that case, a towel together with the vaginal swabs, obtained from Victoria, were collected with the intention of performing DNA testing on them. Nonetheless, the collected towel conveniently and mysteriously disappeared from the evidence, while in the possession of the Coral Springs Police Department, making it impossible for both parties (the State and the defense) to conduct  necessary DNA testing and extraction.

  On a later day, the DNA profile that came from the seminal fluid recovered from the vaginal swabs of Victoria eventually matched Ernesto’s DNA profile, while the police was comparing it with DNA evidence of that unsolved crime. As a direct result of that match, Ernesto became a suspect in that case. Specially since Victoria identified Ernesto in a photo lineup as her possible attacker. Victoria was not candid with the law enforcement officers investigating the case, about knowing Ernesto from the past, and further revealing to them the fact that she had engaged in consensual sexual intercourse with him just a week prior to her alleged attack. Thus, in 1997, Ernesto was formally charged with sexual battery and burglary in Victoria’s case.

Nevertheless, Ernesto was taken  to trial in 1999 in that case, where a jury acquitted him after 15 minutes of deliberation. However, the DNA testing conducted by BSO Crime Lab DNA technician Donna Marchese, in Victoria’s case, remained in the custody and control of the BSO Crime Lab.

ERNESTO BEEN IN THE WRONG PLACE AT THE WRONG TIME.

 Between 1994 and 1995 the Miami-Dade Metropolitan Police Department was conducting an investigation (MDMPD) while trying to apprehend the person responsible for the raping and killing of prostitutes on 8th Street in Miami-Dade County, Florida. See: “The   Tamiami Trail Strangler” . As part of that investigation, the MDMPD collected in excess of 5,000 oral swab samples from males at random, who were encountered in the general area of 8th Street, in Miami.

 Sometime in January 1995, Ernesto became one of those 5,000 males stopped by the MDMPD. At the time of his encountering and questioning by the police. He was at a Gas Station located at 8th Street and LeJune Road in Miami. The police officer who interviewed him, asked him some general questions and ultimately completed a contact card with all his personal information . On March 9, 1995, Ernesto was contacted at his house by a Homicide Detective/Investigator, Archie Moore, who wanted to see if he had tattoos on his fingers, spelling hate and love;  collect tire tracks from his vehicles, and obtain oral swabs from his person, in order to compare it with evidence collected at the Miami-Dade 8th Street raping/killings’ crime scene.

 After a short consultation with Ernesto’s  wife at the time, he agreed to provide Det. Moore with the tire tracks of his vehicles, and the oral swabs requested. See: Miami Police Property Receipt of Oral Swab. Nevertheless, a few months later, Ernesto was informed by the MDMPD that he was no longer a suspect in that case, because the oral swabs provided, did not match the evidence collected at the crime scene of the cases in question. As a result, Ernesto’s DNA standard and oral swabs were retained by the Miami-Dade Metropolitan Police Crime Lab.

ERNESTO’S SURGERY.

 On May 8th, 1995, Ernesto had surgery, performed by Dr. Guy Durand, M.D. He removed three (3) cysts of Ernesto’s body; one from his abdomen area, the second one  from his lower back area and the third one of his buttock area. Due to the uncertainty of the cysts, all of them were sent to a pathologist to obtain further testing.  See: Medical Report. The surgery required stitches in all three areas. Thereafter, Ernesto  visited the Doctor’s office every other day to change his bandages and check his injuries, etc. On a later day, May 15th, 1995, the stitches were finally removed.

ERNESTO’S ALIBI.

  On the night of May 11th, 1995, and the early morning of May 12th, 1995, Ernesto was sleeping and resting from taking the prescribed medication, given by the Doctor, after the surgery he received on May 8th, 1995. He was sleeping in the house of his girlfriend at the time, Paula Turgeon, in Lighthouse Point, Pompano Beach, Florida. This location was approximately 20 miles from the scene of the crime, in Plantation, Florida.

THE FACTS OF THIS CASE.

  On May 12th, 1995, the victim, a 27-year-old female at the time, was home alone and sleeping nude in her bedroom, when she was awakened by a flashlight shining on her face. The perpetrator told her not to resist. He then straddled her face and penetrated her mouth with his penis. After a short period of time, the perpetrator ejaculated on the victim’s left thigh, and without any further incident, he fled the premises.

VICTIM’S IDENTIFICATION OF THE PERPETRATOR.

  The victim immediately called the police. She described the perpetrator as a young male, around 20 years old, based on the sound of his voice. He was stocky. Approximately 5′7″ to 5’8″ tall and about 180 pounds with a slight Hispanic accent and circumcised.

POINT OF ENTRY AND EXIT, AND PHYSICAL EVIDENCE COLLECTED.

 The police concluded and the victim agreed, that the perpetrator gained entry and exited the premises through the same kitchen window. Although no signs of forced entry was found, 11 fingerprints,  4 palm prints and several footprints were recovered from the kitchen window area. The Crime Scene Investigator, Marjorie Hanlon, collected multiple evidence throughout the apartment, including: bed sheets, pillowcase, multicolored comforter and a black and white print dress. See: Property Receipt.

VICTIM’S MEDICAL EXAMINATION AND COLLECTION OF RAPE KIT.

 A medical examination was immediately conducted. The victim was told not to shower, eat or drink anything before the medical examination was conducted. During this examination, the victim’s identification of the perpetrator was consistent with her previous description given to the police. Several swabs were collected from her mouth, in the attempt to obtain body fluids left behind by the perpetrator, since the alleged offense committed against the victim was oral penetration by the perpetrator’s penis. Also, swabs were collected from her left thigh, because of her additional allegation that the perpetrator ejaculated there. Notably, all these tests came back negative for the presence of any bodily fluids. See: Laboratory Report.

VIOLATION OF THE EVIDENCE’S CHAIN OF CUSTODY.

 The evidence collected at the victim’s house was left unsupervised in the Crime Scene Investigator’s (CSI) van for 3 1/2 days outside the CSI’s home, before the evidence was finally taken to the Plantation Police Department evidence room. On a later day, the collected evidence was transported to the BSO Crime Lab DNA unit to be analyzed by DNA technician Donna Marchese. This fact, was disclosed completely differently during trial, where it was alleged that the evidence was immediately brought to the Plantation Police Department. However, this evidence was placed in an office’s locker, not in the Police Station’s evidence vault.

CONCLUSION AS TO THE DNA EVIDENCE COLLECTED.

 Ms. Marchese concluded that none of the evidence collected in this case, during the medical examination of the victim, contained bodily fluids which could be further tested for DNA. In other words, all the collected swabs tested negative for the presence of DNA. Additionally, every piece of evidence collected at the crime scene was equally tested by Ms. Marchese for the presence of bodily fluids. However, her final conclusion was that all the collected evidence tested negative for the presence of bodily fluids with the exception of the “green flat sheet” which revealed the presence of approximately 10-15 hairs. Additionally, the “green fitted sheet,” revealed multiple spots/stains.
As to the hairs found on the sheet, no DNA testing of any kind was ever performed on it. Nonetheless, on the green fitted sheet, Ms. Marchese, was able to randomly identify 4 specific stains which she called them: spots #1, #2, #3, and #4. On her initial testing for the presence of  bodily fluids, spots #1, #3 and #4 tested positive for seminal fluid. Spot #2, however, tested negative for the presence of bodily fluids.

RFLP DNA METHODOLOGY WAS CONDUCTED.

 Ms. Marchese conducted a DNA test called RFLP, for which she testified at trial as to the protocols and procedures she followed during her testing at the BSO Crime Lab. It was finally concluded that although spots #1, #3 and #4 were identified as seminal fluid, only spot #1 revealed a DNA profile, which eventually was identified as belonging to Ernesto.

EXPERTS’ TESTIMONY AT TRIAL.

 At trial, the State presented the testimony of BSO Crime Lab DNA technician Donna Marchese, who testified as to the DNA findings, testing and procedures, and  BSO Crime Lab consultant Dr. Martin Tracey, who testified as an expert in the field of DNA Population and Statistics. Dr. Tracey, confirmed Ms. Marchese’s findings and testing, and concluded that based on her DNA  testing procedures, the odds of the seminal fluid found on spot #1 of the green fitted sheet, randomly belonging to a person other than Ernesto as being the perpetrator of this crime, would be 1 in 14 billion.

A CIRCUMSTANTIAL EVIDENCE CASE.

 Even though, this case was 100% circumstantial,  the jury relied solely on the DNA experts’ testimony to convict. At trial, Ernesto did not take the stand and the jury convicted him as charged in the information.

ERNESTO’S DIRECT APPEAL.

  During Ernesto’s direct appeal, it was argued, in pertinent part, that the State had tampered with the DNA evidence of this case. There, a disparity existed between the quantity of oral swabs originally collected versus the amount of oral swabs in the possession of the State at the time of trial. There was an evident break in the chain of custody of the oral swabs collected from Ernesto. Additionally, there was an inconsistency or disparity between the name written on the swab’s card “Ernest Behrens” versus “Ernesto Behrens” as the chain of custody receipt depicts. Ultimately, the Court of Appeals affirmed the conviction and sentence with a written opinion. See: Behrens vs State, 830 So. 2d 190 (Fla. 4th DCA 2002). Timely motions for rehearing and clarification were filed and denied.

FLORIDA SUPREME COURT’S DISCRETIONARY REVIEW.

 The Florida Supreme Court denied discretionary review, without opinion.

CONCLUSION.

 Ernesto Behrens is an innocent man, serving time, behind bars for the past 26 years. Due to law enforcement’s mishandling, tampering and planting his own DNA, Ernesto was found guilty of armed sexual battery and burglary of a dwelling with a battery. He was sentenced to serve two terms of life in prison as a sexual predator and has been stigmatized as a monster.

 Ernesto was never identified by the victim as being the assailant, nor did any other physical evidence connect him to the crime scene. Tragically, his prosecution, conviction and ultimate sentence, centered on the Broward  County Sheriff ‘s Office DNA Crime Lab ‘s findings.

DNA EVIDENCE PLANTED/TAMPERED WITH BY THE BSO CRIME LAB.

The Lab’s DNA technician, Donna Marchese,  purportedly found and tested one sperm cell containing his DNA profile on a fitted sheet (although it is not scientifically possible to conduct DNA testing on a single cell). (see link exhibit from LABCORP). This sheet was said to belong to the victim, however, it does not contain her DNA and the victim could not  identify it as hers. All Marchese’s findings were corroborated, at trial, by BSO Crime Lab DNA consultant Dr. Martin Tracey. It has been reported that Marchese no longer works for the BSO Crime Lab nor is the Lab’s DNA consultant Dr. Tracey, since he has been publicly discredited and terminated from his professorship at the Florida International University (FIU) because of comments made by him about planting DNA evidence among other things. See: Miami New Times Dr. Tracey’s article. Ernesto presented at trial unrefuted exculpatory medical testimony, an ironclad alibi witness, and a defense based on the State tampering with the DNA evidence. However, the jury found him guilty based on the State’s DNA experts’ persuasive testimony.

NEWLY DISCOVERED EVIDENCE FOUND POST – TRIAL.

During trial and on appeal Ernesto was unaware of the recent revelations concerning the BSO Crime Lab and its internal and long-standing improprieties that affected the outcome of his trial. The BSO Crime Lab component, which performs DNA testing of complex mixtures, has been closed as a result of an investigation by the American Society of Crime Lab Directors (ASCLD) which found problems with how the BSO Crime Lab was interpreting complex samples, which contain DNA from more than one person. So, in July 2016, with its accreditation threatened, the BSO Crime Lab ceased reporting those complex samples and instead began sending them to outside experts.

EXERCISE OF DUE DILIGENCE.

On October 27, 2016, the State of Florida informed Ernesto of the anomalies and improprieties followed by the BSO Crime Lab and its experts. Ernesto has been compelling the State to produce the DNA evidence in this case in order to perform new testing that could prove his innocence. Additionally, Ernesto has been filled timely motions, trying to persuade the Court to allow him to conduct the proper testing on the evidence, but neither the State nor the Court has complied with these petitions. See: Miami New Times Article on Ernesto.

The true facts which have been shared, regarding Ernesto’s case, paint a picture of gross injustice and human tragedy. The story described above is not only true, but it is also at its highest  point of unethical immortality.

Unlike others that are similarly situated, as with Ernesto, the conspiracy, corruption and misconduct by those who are duty bound to seek justice, but instead use their public office to inflict injustice, continues to be stronger than ever.

With all of my being I cry out to the world for those who will respond to the call. Please hear my plea to help Ernesto, in proving his innocence.

With unending gratitude, and with thanks, may God bless you all in advance!

Sincerely yours,

Franziska  Kaltenbach.