Frank Fuster’s son tested positive for gonorrhea of the throat. There is only one way that this could happen. "It has to be intimate sexual contact," Dr. Judith Lederhandler testified in the case. The boy would have to "come in contact with something that is teeming with gonorrhea" -- which does not live outside the human body" (Probation Violation hearing, State v. Fuster, tr. 184) .

This horrific, scientific evidence is explained away by Frontline as follows: "What’s more, defense attorney [Robert] Rosenthal questions the accuracy of the state’s gonorrhea evidence, saying that particular kind of test has been shown to be inaccurate." In other words, Frontline apparently relied on a defense lawyer’s account of the scientific evidence rather than investigating the matter itself.

They may also have relied on other published works that have made the same claim. Nathan and Snedeker (1995), for example, claim that the test has been shown to have a one-third false positive rate. They cite an impressive-sounding article from the Centers for Disease Control called "Incorrect identification of Neisseria gonorrhoeae from infants and children" (Pediatric Infectious Disease Journal, 7:3-10, 1988) This article describes 40 samples that were sent to the CDC for retesting, after having tested positive for gonorrhea, often in circumstances where sexual abuse was not even contemplated.

One-third of those 40 cases turned out not to be gonorrhea. That is, the initial test was a "false positive." But the article is not about one particular test. It is about a category of tests known as "presumptive tests" that are considered adequate for diagnosis in clinics that treat adults already suspected of having sexually-transmitted diseases. But in the context of children, the primary point of the article is that:

But the isolates were confirmed in Noel Fuster’s case. The screening test was only the first step in verifying Noel’s sample. This is a secret that Fuster’s defense lawyers have hidden quite well from the public – and that Frontline missed entirely in its investigation of the case.

Lab technician Freda Burstyn testified that after the Martin Lewis agar results were observed to be positive there was a "biochemical test to confirm it." The confirmatory tests were also processed at a reference laboratory (as recommended by the CDC). The confirmatory test done on Noel Fuster – the RapID/NH test – is precisely the kind of test that the 1988 CDC article recommended.

Wil Whittington, lead author of the 1988 article, which has become a favorite of defense lawyers, filed a declaration for the defense in Frank Fuster’s federal habeas petition. This January 1999 declaration is most revealing for what it does not say. Whittington never claims that the "one-third false positives" reported in the 1988 article applies directly to Fuster’s case. See paragraphs 18-21 of his declaration for discussion of the 1988 article. As the State pointed out in response to the document, "the most remarkable aspect of Whittington’s affidavit is that it does not appear to be based on the 1988 CDC report." (Response to Motion for an Evidentiary Hearing and for Limited Discovery, Fuster-Escalona v. Singletary, p. 7)

Whittington’s specific claims about the RapID/NH test are even more revealing-- but only if one checks his sources, rather than relying on the representations of a criminal defense lawyer. Addressing the specific test (in paragraph 32 of his declaration), Whittington says obliquely "the RadID/NH test as constituted in 1984 was incapable of being 100% accurate." He does not reveal, however, the extent of the imperfection.

Anyone checking his sole citation would find out that the RapID/NH test "is an accurate, reliable, and useful method for the identification of Neisseria species." Looking further, they would discover that it identified 100% of the gonorrhea cases in the study. (The 24-hour carbohydrate method identified 99%.) The article concludes that the accuracy of the RapID/NH test is "impressive, and the system has been proven superior to conventional carbohydrate degradation tests."

The laboratory of the Jackson Memorial Hospital at the University of Miami was overseen at the time of the Fuster case by Dr. Timothy Cleary, a pathology professor with two years of postdoctoral training in Clinical Microbiology at the CDC. Dr. Clearly confirms that the procedures used with Fuster’s sample were consistent with all CDC guidelines.

Why does Frontline consider a 99.38% accurate test to be unreliable when the leading peer-reviewed journal in the field deemed this level of accuracy to be "impressive"? Why didn’t Frontline challenge one of the defense lawyers about this? (Three defense lawyers and the former defense investigator appeared on the program.)

Frank Fuster’s own gonorrhea test should be mentioned because some have claimed that the fact that he tested negative after his arrest constitutes "exculpatory evidence." But that claim ignores the fact that Frank Fuster received penicillin treatments just two weeks before his arrest. Fuster’s account of that doctor visit would be laughable if the subject matter were not so serious. According to Fuster, he visited his doctor because of the sore on his penis (allegedly caused by a zipper) and the doctor prescribed penicillin "just in case." Apparently sensing how incriminating this admission was, Fuster later claimed, even more ludicrously, that he went to the doctor for a diabetes test. And came home with penicillin. (The positive culture test on his son also revealed that the strain was sensitive to penicillin treatment.)

Some have also suggested that the absence of positive findings in other children somehow undercuts the state’s case. That might be true if their medical records demonstrated a lack of penicillin—at least for those with allegations of a certain kind of sexual contact. But it turns out that every single child with charges that involved Frank’s penis had received penicillin treatments earlier that year. As Hollingsworth reported:

back