Reforming Criminal Law, Exposing Junk Forensic Science

This is wisdom, listen up. Don't raid the fridge when you break into somebody's home. The cops will find your DNA on unfinished food and then CODIS will find you. Next thing you know, you're rotting in prison, just like the "honey bun bandit." You'll never hear fatherly advice like this from Paul Ferrara--too bad for B&E men (that's breaking and entering, to you). The conviction carried by his warm baritone and clear and sober eyes might make a young punk listen. But instead, the director of forensic science at Virginia's Institute for Forensic Science and Medicine gets a laugh by telling how "honey bun" was nailed by DNA from his own sweet lips. A little humor helps make a serious point: DNA forensics databases have put hundreds of criminals in prison who otherwise would be free to roam the streets. Joining Ferrara recently at a symposium on DNA and justice sponsored by the Whitehead Institute for Biomedical Research, Cambridge, Mass., and the Center for Strategic and International Studies (CSIS), a Washington think tank, Barry Scheck underscored the point from a different perspective. "Each time an innocent person is arrested, indicted, convicted, or God forbid, executed, the guilty person is out there free to commit more crimes. So it is in everyone's interest to get this right." As co-director of the Innocence Project at Cardoza School of Law in New York, Scheck has helped some 95 people use DNA tests to prove that they were wrongly imprisoned; 10 were on death row. Scheck was also a member of the "dream team" of defense lawyers at the famous O.J. Simpson murder trial. Adjusting Criminal Law to DNA The success of DNA analysis in distinguishing guilt and innocence is changing criminal law throughout the country. By the count of the Justice Project, a criminal law reform organization, DNA testing has prompted all but one of the 38 death penalty states to consider some kind of reform legislation this year. At issue are questions of finality, statutes of limitation, civil rights, finance of DNA profiling databases, and whose DNA to register. Meanwhile, there is broad bipartisan support in Congress for the Innocence Protection Act of 2001. The bill gives convicts greater access to DNA testing, prohibits states from destroying biological evidence as long as a convicted offender is imprisoned, prohibits denial of DNA tests to death row inmates, and encourages compensation for convicted innocents. All 50 states have now authorized DNA profiling databases. They hope to reap the kind of rewards Virginia has been getting since starting the first state DNA forensics database back in 1989. As Ferrara will proudly tell you, his state is the worst in the union in which to leave your DNA behind at the scene of a crime. Virginia has about a third of the nearly 500,000 DNA profiles registered on CODIS, the Combined DNA Index System, run by the FBI. CODIS pulls together the national DNA index system and similar state and local databases so that an unidentified DNA profile can be matched against the profiles of offenders listed anywhere in the system. CODIS registers profiles in two ways: in a convicted offender index, gathering DNA profiles of sex offenders and other felons; and in the forensic index, a compilation of unidentified DNA profiles taken from crime scenes. A CODIS DNA profile records allele lengths of 13 highly polymorphic short tandem repeats (STRs). Each individual's profile is unique, and thanks to PCR, profile analysis requires only tiny amounts of DNA. As CODIS grows--it could be 10 times larger within five years, Ferrara says--Virginia's crime statistics will become commonplace across the country. Last year Virginia made 178 cold hits, the number of times that, absent suspects and witnesses and with no other clues, DNA profiles from crime scenes matched offenders listed in CODIS. The cases represented major felonies, homicides, rapes, and burglaries. The pace accelerated this year: 352 cold hits so far. Virginia started by profiling sex offenders, later expanded to all felons, and finally added juvenile offenders 14 or older. Each state is free to decide which offenders to profile. Ferrara argues the public is best served by including even nonviolent felons, or else a tremendous number of hits could be missed. "It would be my recommendation that at a minimum we include all convicted felons," he says. But not arrestees, says Scheck, who wants first to eliminate a backlog of more than a million unprocessed crime samples, including 100,000-plus unprocessed rape kits. When all of those are in the system, Scheck predicts they won't be before billions of dollars are spent, "then come talk to me about arrestees." And states should resist the call to collect DNA from everybody, he says. "I think it is good that there is a right to be left alone, ...that we are not a total surveillance society. I think it is good that when Social Security numbers went into effect as the universal identifier, that Congress did not also link them to fingerprints." Statutes of limitation are among the issues legislators may reconsider, says Scheck, given DNA's ability to challenge convictions even after appeals have been complete. He hopes revisions will be done carefully. It may take only days to do a DNA profile, but getting a forensic laboratory ready to do the analysis can take years, so slowly do the wheels of justice turn. There are also civil rights issues to consider. Scheck wants to prevent forensics databases from becoming hunting grounds for "violence genes," or a "sex offender gene." He is also wary of so-called "usual suspect" databases being set up at the local level; unregulated, they might be misused. Goodbye, Junk Forensics "One of the things that DNA teaches us is that there are a lot of techniques that have been accepted in the courts that have not been adequately vetted, that are not science," Scheck comments. Microscopic hair comparisons, where experts compare hair from a suspect to hairs from crime scenes, are a glaring example of bad science. "Now we have mitochondria DNA tests where you can extract DNA from the shaft of a hair and go a long way toward identifying where that hair came from. And we're finding that in case after case that the hair people have misled us." To make his point, Scheck brings up the controversy surrounding Joyce Gilchrist, an Oklahoma City police chemist. The FBI accuses Gilchrist of hair analysis outside the bounds of accepted science and warns that her work may have influenced numerous criminal cases. Miscarriages of justice, though, are not just to be laid at the doorstep of science. Failures also trace to "police misconduct, prosecutor misconduct, jailhouse snitches, and bad lawyers--a lot of them," argues Scheck. What especially concerns Scheck is that despite continuing exoneration of people who should never have been in prison in the first place, "not a syllable has been written anywhere about what happened and why it happened and what can be done to fix this system." He says his book (Actual Innocence, Doubleday, 2000), written with Innocence Project co-director Peter Neufeld and journalist Jim Dwyer, is the only thing that begins to break ground on the subject. To remedy the problem, Scheck calls for commissions with subpoena power to study cases of wrongful conviction and recommend ways to prevent future mistakes. The work would be similar to what the National Transportation Safety Board does following an airplane crash. As these issues are resolved and CODIS matures, the deterrent effect of DNA technology will grow, making serial offenders' crime sprees shorter. Ferrara recalls a case he hopes one day may be a thing of the past, that of a man jailed on shoplifting charges, but who in addition was suspected of rape. There was a rape kit to analyze, but the man was in and out of court before it could be done. Eleven days after his release, he raped and murdered a woman. "When we went back and analyzed the first rape, it was him," says Ferrara, blaming the backlog in processing crime samples for permitting an unnecessary death. He hopes improved technology will make profiling faster, "but one thing that cannot be automated is the work of a DNA examiner going through a hundred pieces of evidence, trying to find one that contains a minute amount of DNA. That is always going to be the time-limiting factor." Asked what it takes to remove case backlogs, he replies: "Finance." Money is a problem even for well off Virginia; it's worse, elsewhere, he notes; many states' DNA profile databases exist only as unfunded legislative mandates. Tom Hollon (thollon@starpower.net) is a freelance writer in Rockville, Md. For More Information Provisions of the Innocence Protection Act of 2001 (and how to email congress to comment on the bill) can be found at http://justice.policy.net/ipa/

Reforming Criminal Law, Exposing Junk Forensic Science

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