A retired FBI agent acting as an expert witness for Anthony H. Sanborn Jr. testified Monday that he believes the police who investigated the murder of Jessica L. Briggs in 1989 suffered from tunnel vision and confirmation bias – errors that led them back to Sanborn as the prime suspect.

But during cross-examination, Assistant Attorney General Meg Elam blasted Gregg McCrary’s testimony, getting him to acknowledge that he had reviewed only a small fraction of the thousands of pages of trial transcripts, police reports and other documents in the case-file before he came to his conclusion.

Elam turned the former FBI agent’s subject-matter expertise against him, and suggested that his evaluation of the Briggs murder investigation suffered from the same professional myopia and biases that he accused the Portland detectives of harboring during their original investigation 27 years ago.

The testimony came during the 10th day of post-conviction review hearings for Sanborn, who was convicted in 1992 of the murder of 16-year-old Briggs. Sanborn has sought to clear his name, claiming police investigators were guilty of misconduct and perjury during the investigation and trial.

McCrary is the first expert witness to testify at the hearings. He left the FBI in 1995 with 26 years of experience, including his final assignment at the behavioral science unit, where he performed research, taught FBI agents and police officers around the country, and assisted local agencies with active investigations into serious crimes.

McCrary has expertise on investigative failures, a field that he said began in the 1980s after DNA evidence became a tool to exonerate convicted people across the country. The FBI began to inquire as to how and why police helped convict the wrong person, and what could be done to avoid future mistakes.

McCrary said after he reviewed a portion of the documents related to the Briggs case, it appeared detectives identified Sanborn as a suspect early in the investigation.

“Other suspects were looked at, but not investigated thoroughly, at least the ones I’ve seen,” said McCrary, who examined some of the case files involved in the Sanborn case. “It seemed always to come back to him over time. (The detectives) seemed to be looking for information that seemed to confirm his involvement and did not seem to pursue information that would tend to lead in other directions.”

McCrary also said he saw problems with the testimony of Hope Cady, who was 13 when the murder occurred, and told the jury at the 1992 trial that she witnessed Sanborn stab Briggs to death on the Maine State Pier.

Cady recanted her testimony in April, leading to Sanborn’s release from Maine State Prison.

McCrary said Cady came forward after Sanborn’s arrest, and said witnesses who come forward after someone has been charged should be viewed with suspicion.

He also was critical of the Portland police for not including their handwritten notes in the information that was eventually turned over to prosecutors and Sanborn’s original defense team.

Much of Sanborn’s case is based on showing that police held back from their official typed reports details that did not implicate Sanborn or could have helped him at trial, a violation of a constitutional principle established in 1963 that all information deemed material and is either exculpatory or impeaching must be turned over.

Under questioning from Elam, McCrary, who said he was not charging a fee for his testimony, said he was first contacted by Sanborn’s attorney, Amy Fairfield, in February, and that the context was her effort to exonerate Sanborn.

“Is it fair to say that you as an expert witness might fall victim to framing?” Elam asked early during her cross-examination.

“Yes,” McCrary said.

“Is it fair to say that when something is presented to you as a miscarriage of justice, you need to check your own presumptions?” Elam asked.

“All the time,” McCrary said.

Later in the afternoon, Elam asked whether McCrary ever directly considered whether his evaluation of the Sanborn case was itself tainted by the framing of how he was asked to assist.

“Did you say to Ms. Fairfield, ‘Hey, I’m going to offer an opinion, I don’t want to frame it incorrectly, or have tunnel vision, can I have all the pages?’” Elam asked.

“No,” McCrary responded, adding later that he felt he had reviewed enough documents to formulate an opinion.

Elam also asked whether it would have been important for McCrary to consider that Sanborn may have had another motive for killing Briggs: She witnessed him hide the murder weapon in another, unrelated homicide committed by another person.

McCrary said he wasn’t asked to look at the other homicide case, but said that motive seemed “remotely possible,” and that to know more, he’d have to “filter it through the totality of the circumstances,” which Elam suggested he did not know because he did not read all of the case documents.

The testimony began late Monday morning, after Elam and her colleague, Assistant Attorney General Paul Rucha, challenged McCrary’s testimony. Justice Joyce Wheeler began the session by explaining that McCrary would be permitted to testify, but his testimony would be subject to limits.

“I may hear times when I exclude him,” Wheeler said from the bench. “I expect many objections from the state, but we will proceed issue by issue.”

Wheeler shut off some avenues of inquiry by Fairfield. In her objections, Elam argued that if a topic was not previously addressed in a written report by the expert, then he should not be able to testify about it on the witness stand.

For instance, McCrary began to testify about how crime scenes, defined as any place that contains evidence that a crime occurred, are not only physical places. A crime scene can exist also in someone’s mind – and that a witness or victim may possess a “cognitive crime scene,” in which their memories are the basis for helping to prove a crime occurred.

“We have to think of memory as a Wikipedia page,” McCrary said “We can go in and change it ourselves or someone else can go in and change it.”

Fairfield asked whether children are particularly susceptible to their “cognitive crime scenes” being contaminated by suggestive forces.

Elam objected to that question, saying McCrary’s report submitted to the court did not contain references to cognitive crime scenes or the susceptibility of children’s memory to contamination.

Fairfield said the testimony was relevant and based on what had already been discussed.

“But it was not in the report,” Wheeler said. “Move on to the next area.”

After Wheeler excused McCrary from the stand shortly before 4 p.m., she seemed to defend Maine as a nicer place than the witness box was for him Monday.

“Maine can be a really friendly place,” Wheeler said. “You haven’t been subjected to the lobster bake.”

“I’m fine with Maine,” McCrary said.

Matt Byrne can be contacted at 791-6303 or at:

[email protected]

Twitter: MattByrnePPH

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