Picturing DNA
Chapter 2:
Genes & Justice

Introduction

Chapter 1

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Epilogue

In December 1954, after a trial that captured the attention of the entire country, Dr. Sam Sheppard, a Cleveland osteopath, was convicted of the brutal murder of his pregnant wife, Marilyn, and sentenced to life imprisonment. Throughout the trial and for years afterward, Sheppard repeatedly insisted that the crime actually was committed by a bushy-haired intruder. In 1966, after the Supreme Court overturned his conviction on the grounds of prejudicial pretrial publicity, Sheppard was released, retried and acquitted. A free but haunted man, he died four years later at the age of 46.

Over the years, several different scenarios for the murder were advanced. F. Lee Bailey, who was Sheppard's lawyer at his 1966 retrial, believed that Mrs. Sheppard was killed by the jealous wife of a man with whom she may have been having an affair. The case was never forgotten, and in 1992, a book was published that accused Richard Eberling, a neighborhood handyman who had been convicted in the murder of a woman who had lived near the Sheppard family. After Eberling's death in prison in 1998, fellow inmates reported that he had confessed to killing Mrs. Sheppard.

In 1997, the Sheppards' son, who had been working to clear his father's name, petitioned the courts to have his father's body exhumed for a DNA sample. His petition was granted, and the analyzing lab found that the sample did not match evidence taken at the crime scene. In late 1999, the son, Sam Reese Sheppard, sued the state of Ohio for damages based on the wrongful imprisonment of his father.

While this case dramatizes the potential of DNA evidence to resolve questions of disputed identification, it only hints at the remarkable revolution DNA evidence has created in the resolution of current and future cases of violent crime. Tiny samples of DNA taken from a speck of dandruff, a single hair, a used toothbrush, to say nothing of blood or semen, make it possible to identify individuals in ways that police and science fiction writers could only dream about several decades ago. Based on an analysis of as few as a hundred cells from a single such source, laboratories can produce a bar code-like pattern unique to the individual from whom the sample came. This pattern can be compared to samples taken from anyone else involved in the issue at hand as well as to the samples in a computerized file of known criminals. Matches that implicate suspects and non-matches that eliminate innocent people are equally valuable.

DNA evidence was first admitted in a criminal trial in England in 1986, when the Leicester University professor who had coined the phrase "DNA fingerprints" was asked by the police to substantiate the statement of a suspect who had confessed to two rape-murders. Tests showed that the man had not committed the crimes. The definitive nature of the new procedure encouraged British police to undertake the collection of blood samples from several thousand men in the area in an attempt to identify a new suspect. The following year another Englishman became the first person ever convicted of a crime, in this case rape, on the basis of DNA evidence.

That year also saw DNA evidence successfully used for the first time to support the conviction of a rapist in America. There were legal challenges to the use of the new technology in the U.S. courts, but by 1996, forty-six states permitted the results of DNA testing to be used in criminal cases, although the methods of collecting samples and analyzing the evidence may, of course, be challenged in any case.

The accuracy of DNA evidence far surpasses the accuracy of fingerprints and blood-sample analysis, the best identifying evidence previously available. Fingerprint evidence is fragile and often hard to come by. Even blood typing is not highly precise, and because a fairly large sample of blood is needed for typing, the prosecution lab frequently uses up the crime-scene sample and none is left for an independent test by the defendant. A state-of-the-art DNA test, however, needs only a minuscule sample. Also, while blood samples degrade easily, the DNA molecule is stable and, unless mishandled by a lab, almost never leads to false identification.

Between 1989, when the FBI began DNA testing in sexual assault cases, and 1996, roughly ten thousand cases of sexual assault were referred to the FBI by state and local law-enforcement officials; fully one-quarter of the primary suspects in these cases were ultimately exonerated because of DNA testing. A National Institute of Justice survey of private labs around the country yielded virtually the same 25 percent exclusion rate.

In many of these cases, an eyewitness, often the victim, has made a positive identification of the alleged perpetrator. Thus, DNA evidence has proven itself a valuable contribution to the arguments of experts within the justice system who have always warned that eyewitness identification is unreliable. This troubling problem was highlighted in a report issued by the U.S. Department of Justice that evaluated the impact of DNA typing in cases where a mismatch had led to one of the following: the elimination of a primary suspect, the post-trial exoneration of person convicted of a violent crime or the identification of a new suspect from a pool of known perpetrators whose DNA type is already on file. The report cast doubt on the value of eyewitness identifications and questioned the value of non-DNA analyses of blood or hair. It also acknowledged the pressure on police to build a case once a primary suspect has been identified and pinpointed inadequacies in the ways evidence is collected at the time of a crime and preserved thereafter. One of the first results of the reexamination of cases was the unmasking of a man who had worked for the West Virginia State Police for years and then for a state lab in Texas; this so-called expert was indicted for perjury after it was revealed that he had given false testimony concerning blood-sample matches in more than one hundred thirty cases.

Properly used, DNA evidence has the potential to eliminate a great number of these weaknesses in the system. Attorneys Peter Neufeld and Barry Sheck, prominent advocates of DNA testing, believe DNA testing has changed the rules of evidence in cases of serious violent crime. Since 1992, Neufeld and Sheck have been in the forefront of a movement led by defense lawyers from around the nation. They reexamine convictions for violent crimes in which DNA testing may lead to a reversal. The Innocence Project at the Benjamin Cardozo School of Law in New York City, a program staffed by law students and overseen by professors Neufeld and Sheck, serves a very specific clientele: convicted prisoners who claim actual innocence. The Project will not accept cases based on a claim that a rape victim was a consensual partner, murder cases that claim self-defense or claims based on bad lawyering. And, of course, there has to be physical evidence from the crime scene-blood or tissue samples-that can be tested for DNA. This requirement eliminates crimes like drive-by shootings or the many murders in which no blood is spilled other than that of the victim.

The Project has found that about 70 percent of the cases they accept have to be dropped because the crime-scene evidence that might have yielded DNA samples has been destroyed or degraded. However, 60 percent of the cases that get as far as testing come back in the convict's favor. Neufeld has called DNA evidence "the gold standard of innocence." Scheck calls it a "magical black box that suddenly produces the truth.

"DNA testing truly is revolutionary," Scheck says. "It's transforming the way we do business in the criminal justice system." As of mid-2000, sixty-four wrongly convicted prisoners in the United States, plus six in Canada, had been released from prison, exonerated of the crimes with which they were charged because of the diligence of the Innocence Project and other defense attorneys. One of them is a man named Larry Holdren.

In December 1982, a woman jogging along the Kanawha River in Charleston, West Virginia, was assaulted and repeatedly raped. Afterward, the rapist ejaculated on her face, adjusted his clothing and fled. During an examination at a local emergency room, the doctor took a swab of the semen on her face, washed what remained and placed the washings in a container.

One month later, the victim was shown five photographs, including one of Larry Holdren. The quality of one photo was very poor, and the other pictures were of men who did not match the victim's description of her assailant. But the victim became agitated while looking at Holdren's picture, and a man who had been near the scene of the crime on the night it took place also said that the photo of Holdren resembled a man he had seen in the area.

On March 10, 1983, Larry Holdren was arrested and charged with the sexual assault. His lawyer asked that the physical evidence be tested, hoping to find a semen stain left by the assailant. But, it turned out that in violation of the hospital's own stated policy, the swab and the container with the washings had inexplicably not been preserved. Despite Holdren's alibi, corroborated by several witnesses, that he was home during the time of the attack, the jury convicted him of six counts of first degree assault, and in February 1985, Holdren was sentenced to 30 to 40 years in prison.

Holdren's lawyers made repeated appeals, all of them rejected, and throughout the process, Holdren continued to request DNA testing of the physical evidence. In 1998, a new lawyer, Lonnie Simmons, and the prosecutor's office agreed to have the clothing worn by the victim re-examined. The testing lab reported that the sweatshirt worn by the victim during the rapes retained some semen stains. The lab concluded that the DNA sample taken from those stains was not that of the victim and it was also significantly different from Holdren's DNA. Holdren was eliminated as the source of the spermatozoa on the sweatshirt. The sample presumed to be that of the rapist has been compared to DNA in databanks, but to date, no new suspect has been identified.

Based on this new evidence and the conclusions it led to, the state of West Virginia reversed Larry Holdren's conviction on June 10, 1999. Soon thereafter he was released from prison after having served fourteen years for a crime he did not commit.

The issues raised by the use of DNA evidence, along with other challenges to the fairness of capital-crime convictions, have led some ardent supporters of the death penalty to worry about potential inequities in its application. Illinois has had a particularly disquieting history: thirteen convicted prisoners have been released from the state's death row since 1977 because of DNA tests or other exonerating evidence. Worried by the implications of this information, Governor George Ryan, a Republican who does not oppose the death penalty in principle, ordered his state to put all executions on hold as of February 2000, pending further review.

It is worthy of attention when DNA evidence eliminates a false suspect in a current case or leads to the release of an innocent person wrongly convicted in the past. It is equally notable when the use of DNA leads to the successful prosecution of a violent crime. But the forensic use of DNA also raises technical, practical and philosophical issues about the statute of limitations and the strict rules that currently limit the admissibility of new evidence during a post-conviction appeal. Not all police departments are familiar with the proper techniques of taking DNA evidence at the crime scene, and, as the defense lawyers in the 1995 O.J. Simpson case demonstrated, a jury that can be convinced of evidence tampering will refuse to take the evidence seriously, even if it appears to provide a definitive identification of the suspect.

In the United States, forensic DNA technology developed primarily as a prosecutorial weapon, rather than an investigative tool. For a number of years, samples were used primarily to confirm the identity of a suspect already under suspicion. Because the country was not amassing a large database of DNA samples from known violent criminals, little opportunity existed to harness DNA's ultimate investigative power-its ability to help police find and build a case around a suspect whom no eyewitnesses placed at the crime scene.

Since 1990, however, individual states and the FBI have worked together to establish a Combined DNA Index System (CODIS). As of late 1999, 43 states had established databases. But there are not yet enough laboratories equipped to handle the number of blood or saliva samples that are taken from individuals convicted of rape, sexual assault and murder. Criminals who should be identifiable through CODIS remain free to re-offend. In addition, many DNA profiles already in the system were analyzed by a method that is obsolete and now need to be reanalyzed with newer technology. The profiles, along with the accumulation of DNA data, has created a national backlog of almost 1.5 million unanalyzed samples.

Nonetheless, DNA registries of convicted felons have begun to pay off. Many old cases are being closed as police match stored samples of crime-scene evidence with those taken from men convicted of other crimes. And, given the recidivistic nature of many of the crimes for which DNA is collected, new cases are being matched to previous perpetrators in the same way. Eventually the retrospective reexamination of cases by programs like the Innocence Project should not be necessary.

Several issues are raised by the ability to test the DNA of criminal suspects. The first is the retention of DNA samples after testing has been completed. In many instances the biological sample is stored indefinitely. Given the changing nature of DNA technology, capabilities may be developed that allow analyses that were not anticipated at the time of sample collection. What are the possibilities and implications of such a dynamic? What are the legal issues and analyses that must be considered for us to maximize this technology in a way that protects our citizens but does not erode our essential rights of privacy?

Second, while people within the justice system eventually would like to have the capacity to analyze the DNA of everyone arrested for violent crimes, the widespread use of such expensive testing techniques is still a distant dream. In the present and foreseeable future, the sampling of people who have been arrested will swamp a system already struggling to keep pace with the testing of convicted offenders and the creation of the CODIS database.

A final topic under consideration is the issue of statutes of limitations-laws that set a time limit, usually five to ten years, after which a criminal investigation is closed. These ancient statutes are based on principles of fairness: after years have passed, it becomes harder for either the prosecution or the defense to present untainted evidence, and witnesses' memories are assumed to be less clear. But DNA testing reverses this assumption. Here is a technology that keeps old evidence as fresh as new. Suddenly, the arbitrary allocation of five or ten years to the investigative process seems unfair to victims of violent crime, depriving them of the satisfaction of seeing the criminal punished. And, although the technical legal issues are different, time limits on the appeals process penalize prisoners who might be exonerated by newly available DNA evidence.

The historical rationale for these legal time constraints is just beginning to be considered. A prominent legal scholar has said that the existence of DNA evidence, with its virtual lock on establishing guilt or innocence, justifies reexamining time limits on criminal investigation. A few states have abolished the statute of limitations for cases of sexual assault, but only for future crimes. So far, the changes have not been extended to crimes committed in the past.

Legislation is also pending in several states and in the U.S. Congress that would make it easier for prisoners to assert a right to DNA testing. Prosecutors' offices would be required to preserve blood or tissue samples taken from the crime scene long enough for suspects to obtain their own tests. Various suggestions have been made to reduce the cost of such tests for defendants, who commonly have few financial resources.

To its proponents, DNA testing appears to offer irrefutable evidence of guilt or innocence. It seems to provide a clear-cut scientific triumph over some of the ambiguities and vicissitudes of our legal and judicial systems. But even our limited experience with DNA evidence in high-profile trials suggests that personalities and prejudices play a major role in the courtroom. To many disinterested observers, the DNA evidence at the O.J. Simpson trial was overwhelming, but skilled defense lawyers, pointing to sloppy behavior by the Los Angeles Police Department, convinced the jury that the crime-scene samples might have been contaminated.

In April 2000, a jury in Cleveland rejected Sam Reese Sheppard's civil suit claiming that the state of Ohio had wrongly convicted and imprisoned his father. Rather than debate the merits of the DNA evidence that seemed to exonerate the late doctor, the prosecutor disparaged the evidence and testimony supporting it as "mumbo-jumbo." He kept the jury focused on stories of Dr. Sheppard's pattern of marital infidelity and argued that the son was bringing this case solely for financial reward. The prosecutor's strategy-not the DNA evidence-carried the day.

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Picturing DNA by Bettyann Holtzmann Kevles & Marilyn Nissenson
Copyright © 2000 Bettyann Holtzmann Kevles & Marilyn Nissenson
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