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James Fagan

Other Michigan exonerations with false or misleading forensic evidence
In September 1986, 36-year-old James Fagan was charged with sexually assaulting his 14-year-old daughter in Flint, Michigan. He was convicted and sentenced to life in prison in what was the first criminal conviction based on DNA testing evidence in Michigan history.

In the late summer of that year, the girl discovered she was pregnant and had an abortion. When asked who was the father, the girl said Fagan had raped her in June 1986. Fagan denied the accusation and asked for paternity testing. Tissue samples of the aborted fetus were submitted to Lifecodes Corporation for DNA testing, which failed to exonerate Fagan.

Two years later, in September 1988, Fagan went to trial in Genesee County Circuit Court. When the girl failed to appear to testify, she was arrested. When she got on the witness stand, she said she had made up the story about Fagan because he was always arguing with her mother. She testified that she thought the accusations would end the relationship.

The girl’s mother testified that Fagan had moved out of the family home in late 1985 but that he occasionally made return visits.

Alan Giusti, an employee of Lifecodes, testified that he performed the DNA testing that compared blood samples from Fagan and his daughter, as well as the tissue samples from the fetus. Dr. Kevin McElfresh, also from Lifecodes, testified that there was a 99.996 percent probability that Fagan had impregnated his daughter.

Fagan testified and denied that he ever had sexual intercourse with his daughter. He told the jury that he wanted the DNA testing done to show he was not the father and that he was shocked at the result.

On September 8, 1988, the jury convicted Fagan of first-degree criminal sexual assault. He was sentenced to life in prison.

In September 1989, the Michigan Court of Appeals granted a motion filed by Fagan’s appeals attorney, Ronald Bretz, to remand the case back to the trial court for a hearing on whether Fagan’s trial defense attorney had provided an inadequate legal defense by failing to obtain an expert witness to review and challenge the prosecution’s DNA evidence.

Fagan’s trial attorney, James Zimmer, testified at the hearing that he had believed that because he requested the DNA testing be performed, he could not object to the results. He said he was stunned when he was informed of the results. Zimmer admitted that he had done no research on DNA testing technology and that he “absolutely” had made a mistake by not challenging the testing procedures or the statistical analysis.

Dr. Julian Adams, a University of Michigan biology professor, testified for the defense as an expert in population genetics, paternity testing, and the statistical analyses related to those fields. Adams had no complaint about the testing process, but was critical of the statistical analysis. Adams said Lifecodes failed to account for the fact that the girl shared a bedroom with an older, teenaged brother.

Because the brother had access and because the brother was Fagan’s natural son, Lifecodes should have either excluded the brother via DNA testing or factored the brother into the computation of paternity probability, Adams said. Since there was no evidence that Lifecodes had excluded the brother—the brother had in fact refused to be tested—the calculations presented at trial were “meaningless,” Adams declared.

Adams recalculated the statistics factoring in the brother and came up with an 87 percent probability that Fagan was the father. He noted that while 87 percent might seem high, it was “inconclusive.”

Asked by the prosecutor if that was just a matter of opinion, Adams said, “I don’t think it’s a matter of opinion. I think…everyone would agree…with me that when you calculate probabilities of paternity, you have to factor out relatives. If there are relatives involved, it makes these [calculations] meaningless.”

In the spring of 1992, the trial judge denied the defense motion for a new trial. In 1994, the Michigan Court of Appeals affirmed Fagan’s conviction.

In March 1995, Bretz filed a federal petition for a writ of habeas corpus. In May 1996, U.S. District Judge Horace Gilmore granted the petition and vacated Fagan’s conviction. Judge Gilmore said that Fagan’s trial defense lawyer should have obtained a DNA expert. Moreover, the judge found that because an expert would have reduced the value of the evidence from conclusive to inconclusive, there was a reasonable probability that Fagan would have been acquitted.

On August 28, 1996, Fagan was released on bond while the prosecution appealed. On July 1, 1997, the Sixth Circuit U.S. Court of Appeals upheld the granting of a new trial.

On September 8, 1998, the prosecution dismissed the charge.

– Maurice Possley

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Posting Date: 5/20/2020
Last Updated: 5/20/2020
Most Serious Crime:Child Sex Abuse
Additional Convictions:
Reported Crime Date:1986
Age at the date of reported crime:36
Contributing Factors:False or Misleading Forensic Evidence, Perjury or False Accusation, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No