Thursday, September 08, 2005

DNA mislabeled in murder case

Error at SBI lab erases key part of the state's case, but trial is set to proceed for woman charged in killing her mother

By Phoebe Zerwick
JOURNAL REPORTER

GREENVILLE - On the Sunday before her death, Arlene Lincoln and her son, Duffy, watched N.C. State play Connecticut in the NCAA basketball tournament.

Duffy Lincoln left about 4:30, after State had lost. His sister, Leslie, stopped by later. She was the last person known to have seen Arlene Lincoln alive.

The next night, March 18, 2002, Duffy Lincoln found his mother's body on the floor by the bed. There was a deep stab wound in her neck. She was 74.

Within a week, the police were focused on Leslie Lincoln as the suspect. They arrested her six months later with information from confidential informants. The clincher came in July 2003, more than a year after the crime, when a DNA report came back. A bloodstain on her mother's bedsheets matched Leslie's DNA.

The evidence seemed to seal the case - even for those who wanted to believe that she was innocent.

"When it first came back ... I really was thinking, 'She must have done this,'" said Sharla Lincoln, Leslie Lincoln's sister-in-law. "You think something coming out of the state lab is going to be right. Knowing how much DNA means to people now, if the DNA says you did it, then you did it."

Except the lab was wrong.

The test tubes holding the DNA samples had been mislabeled. The evidence actually showed that the blood on Arlene Lincoln's bed was her own.

Today, Duffy Lincoln believes that police focused on his sister as the prime suspect for the simple reason that she was the last to see their mother alive. What he doesn't understand is why prosecutors decided to charge Leslie Lincoln with murder and try her for her life, and why, despite a lack of evidence, they continue to keep her locked up without bail.

The police and prosecutors declined to comment on almost anything having to do with the case, but a Winston-Salem Journal review of search warrants and affidavits shows that nothing seized from Leslie Lincoln or her home has provided any physical link to her mother's death.

In addition, interviews with some of the confidential informants police relied on describe interrogation methods that include implicit threats, among other tactics, designed to get the witnesses to support the police theory - that Leslie Lincoln killed her mother.

In motions filed last week, Lincoln's attorneys alleged that the state has no physical evidence, eyewitnesses or confession tying Lincoln to her mother's death. Instead, the motions allege, the state is relying on jailhouse informants to make a case against her, with a promise to at least one informant to drop felony charges in exchange for testimony.

When it learned of its mistake on the DNA test, the State Bureau of Investigation removed the lab technician on the case from her duties. The prosecutor later took the death penalty off the table.

Leslie Lincoln, 50, remains in the Pitt County Detention Center. Her trial is scheduled to begin Sept. 12.

Prime suspect?

Leslie Lincoln is the youngest of Arlene and Abe Lincoln's three children. Duffy, the eldest, is a high-school guidance counselor. The middle son, Howard, died in a car accident. Leslie married an electrician in 1983. When the marriage ended in 1997, she moved in with her mother until her divorce was settled and she could afford her own place.

By 2002, she had her life back on track. She had found a job as the administrator at The Meadows at Red Oak rest home, not far from her mother's condo. She bought a house and kept her three horses nearby. She began dating Richard "Max" Manning, the maintenance man at the rest home.

Leslie Lincoln spent the afternoon of Sunday, March 17, running errands. She bought a bluegrass CD at Circuit City before dropping in to see her mother. According to a motion filed by her attorneys, she left her mother's about 7:30 p.m. On her way home, she bought dog food at Wal-Mart. Her lawyer filed receipts with the court as proof of her movements.

Arlene Lincoln led an active life growing flowers in her front yard, keeping a garden at the First Freewill Baptist Church, and shopping for bargains at estate auctions. So that Monday, when neighbors noticed that she hadn't been out working in her yard or even picked up her newspaper from the walkway, one of them called Duffy Lincoln, and he drove over.

"I went down the hall to her bedroom and when I got to her bedroom I saw her on the floor," he said.

He called 911. Rescue workers arrived first. By the time they confirmed that she was dead, they had trampled through the crime scene, Lincoln said.

His mother was wearing a pair of blue slacks and a pink pullover. There were three footprints in the blood by her body. The top drawer of her dresser was on the floor. Her pocketbook, which she normally kept in the closet by the front door, lay on the seat of the living-room couch. Along the couch's top edge lay three $1 bills. Her glasses were on the floor by the couch.

Later, Duffy Lincoln realized that the paisley bedspread was missing from her bed. So was a concrete squirrel she kept on the stoop by the front door. Police later learned that her credit card was missing. Someone had used it at 3 a.m. Monday to buy gas at a nearby convenience store.

Police took various items from the condominium for testing, including the bloodstained sheets, a crumpled paper towel, a cutting from the couch cushion and the dollar bills. They let Duffy Lincoln take his mother's pocketbook home. Later they asked ask him to return it for testing.

Leslie Lincoln met her brother at their mother's home that night. According to a defense motion, later in the week the police checked Duffy and Leslie Lincoln for wounds and found none.

Duffy Lincoln's wife, Sharla, remembers the day, a week after her mother-in-law's death, when Leslie Lincoln realized that she was the prime suspect.

"They think I killed Mama," Leslie Lincoln told Sharla Lincoln shortly after Leslie's four-hour interview with police. "They were freaking me out. The investigator was telling me the guilt was going to kill me. They got me so paranoid, I think I need to throw all the knives in the pond."

Greenville police arrested Leslie Lincoln on Sept. 19, 2002, and the district attorney soon filed notice that he would seek the death penalty.

Mistaken lab report

The strongest evidence linking the daughter to her mother's murder was the most irrefutable evidence there is in a criminal prosecution - a DNA test tying the defendant to the crime.

According to a July 2003 lab report by the State Bureau of Investigation, DNA extracted from bloodstains on the bedsheets in the mother's bedroom and from a couch cushion matched Leslie's DNA.

Lincoln's attorney, Ernest "Buddy" Conner, didn't believe the testing. As he explained to her family, she didn't have any wounds after the murder that would have bled on her mother's bedsheets or couch. On top of that, she had passed a polygraph exam that Conner arranged in November 2002 with a retired polygraph operator from the SBI.

By late 2004, Conner was asking the court to pay for the evidence to be retested by a private laboratory. District Attorney Clark Everett didn't object, and he also asked the SBI to retest the evidence itself. In March, Brenda Bissette, a DNA analyst who has since retired, called Everett to let him know that her first round of testing was wrong.

Later in March, LabCorp. in Research Triangle Park retested the bloody sheet and cushion previously tested by the SBI. The lab also tested a bloody paper towel. The lab was unable to extract a DNA profile from the couch cushion. The other evidence all matched Arlene Lincoln's DNA.

The state crime lab did not make any public announcement of its mistake, but it continued to work the case. The lab tested additional evidence in May, looking for blood and DNA. According to a May 17 report, the lab found no human blood on any of the knives the police seized from Leslie Lincoln's house or truck. DNA testing also failed to turn up a match between Leslie Lincoln and any of the bloodstained evidence taken from her mother's house. The blood all matched her mother's DNA.

Conner has filed motions asking the state crime lab to explain the mistake. Until the lab provides an explanation, his motion says, its work is suspect. A lawyer's group also has filed a complaint about Lincoln's case with the accrediting agency for crime laboratories.

"Leslie is innocent," Conner said. "And the SBI made a mistake in this case. Is that a coincidence? I don't know. Leslie is certainly entitled to an answer to that question."

In an interview this month, SBI officials said that Bissette mislabeled the test tubes she used to extract DNA from the blood samples, labeling Leslie Lincoln's DNA as her mother's and Arlene Lincoln's as her daughter's.

"From then on, all her interpretations were flawed," said Michael Budzynski, the special agent over the lab's DNA section. "She is very aware of what she did. She is aware of the gravity of the situation. It eats at people."

The SBI removed Bissette from her laboratory duties. She retired May 1, 2005. She did not return a telephone message left with a relative.

The SBI is reviewing its procedures in the wake of Bissette's mistake, but it has yet to make any changes, Budzynski said.

He said he also is reviewing the files for all 50 DNA cases that Bissette analyzed since 2002. He said he does not intend, however, to redo the analyses. The SBI also said it would redo DNA testing in any case that Bissette handled, if requested by the prosecuting or defense attorney. But the SBI has not sent out any formal notice to lawyers about the error.

Legal experts say that a mistake of such magnitude, especially in a capital-murder case, calls for a clear and prompt explanation from the SBI. It should have immediately explained what happened to reassure the public, and lay out what it intends to do to prevent such mistakes from happening again, they said.

The Journal, in April, requested public records about laboratory errors. The SBI's response did not disclose the error. SBI Director Robin Pendergraft said that must have been an oversight.

William Thompson, a professor of criminology and a DNA expert at the University of California at Irvine, said that labeling mistakes have happened at other laboratories.

"The test of whether a lab is doing adequate work isn't whether they make errors. It's how they respond when errors come to light," he said. "You can't expect a lab to be error-free. You can expect a good lab to be open about what they are doing."

Confidential informants

Beyond the discredited DNA report, the police, the district attorney and Lincoln's attorneys declined to discuss the evidence. But affidavits by police Detective Ricky Best, filed to obtain search warrants for Lincoln's house and pickup truck, reveal his reliance on confidential informants to make a case.

Best said in the affidavits that he had two informants who heard Lincoln say that she may have killed her mother during an argument over her boyfriend, and a third who heard her say she may have killed her mother. A fourth informant told Best about throwing her hunting knife in the pond. Sharla Lincoln believes that she is the informant on that piece of information, though she does not believe that her sister-in-law said it as an admission of guilt.

"She argued with her mother and she thinks she killed her mother," Best wrote in one of the affidavits, quoting one of his informants. "She told (confidential informant A) that she was going to throw her knife into a farm pond before the police search for it because there may be evidence on the knife to link her to her mother's death."

Police seized a long list of items from Leslie's house, including a hunting knife, a penknife, a journal, a 2002 calendar and carpet samples. They also searched her blue pickup truck, finding a bottle of anti-anxiety medicine, a bottle of a painkiller called oxycodone prescribed in her name, another knife, a checkbook, $234 in cash and an insurance card. Police also searched the pond near her house, but according to the search warrant, found nothing

Police declined to identify their confidential sources, but former rest-home employees said that Best relied on, and pressed, several of them for information.

Patsy Jefferson worked nights at the rest home, but transferred to a day-shift job after Best persuaded her to help with the investigation, she said.

Jefferson said that Lincoln's obsessive interest in Manning, even after her mother's death, made her suspicious of her boss. She remembered, too, she said, how Leslie Lincoln had once referred to her mother as "the bitch," and thought it strange that Lincoln bragged about the diamond ring she wore that had belonged to her mother.

"She would never give it to me, but look, I got it anyway," Jefferson recalled Lincoln telling her one day while they were taking a cigarette break together.

Jefferson said that Best also told her that a word had been written in blood at the crime scene, leading her to believe that the killer had written "bitch" somewhere on the body.

"He just said, 'Think of a word she liked to say a lot,'" Jefferson recalled. "It put a chill on me, and this was in the summertime."

Nothing in the court record mentions anything written in blood at the crime scene. Dr. Paul Spence, the medical examiner, examined the body at the scene. His report notes three footprints but says nothing about any words written in blood.

"I didn't find any such word written on her," Spence said this month. "It would have been pretty obvious."

After she switched to the day job, Jefferson said she never learned anything concrete linking Leslie Lincoln to her mother's death.

Catherine McCabe, who also worked with Lincoln at the rest home, said that she was another of Best's confidential informants.

She said she went to Lincoln's home several times after the murder to comfort her. One afternoon in late August or early September, McCabe said, she and another woman from the rest home visited Lincoln. She said that Lincoln was upset about the way the investigation into her mother's death had focused on her.

"She was basically (saying) that police were hounding her, and she couldn't understand why they were focusing on her and not trying to look at anyone else," McCabe said.

"I think that was the point where she made the statement that maybe she had killed her mother and just blocked it out."

Steve Drizin, a law professor at Northwestern University who has studied police interrogative methods, said that Lincoln's statement indicates that she was under stress from the interrogation.

"The daughter was telling people she began to think maybe she committed this crime in a blackout," he said. "That suggests to me that she was interrogated by the police and she was beginning to doubt her memory. "

McCabe said she didn't take Lincoln's statement as an admission of guilt, but several days later, Best came to the rest home and asked to speak with her.

He took McCabe to the police department and asked her about her conversations with Leslie Lincoln. McCabe said that Best told her that he had already heard about the ''blocking it out'' statement from other sources, and asked her to repeat what she had heard.

McCabe said she felt pressured to cooperate with Best out of fear of losing her job.

"If she (LeslieLincoln) went through anything like what I went through when I was down there talking to them, I can see how she would not know what to think. It is a very intense experience to be part of an investigation, and you have someone yelling at you...."

She said that Best told her that he had found a knife at Lincoln's house that he believed to be the murder weapon, and he suggested that Lincoln had found the diamond ring in the top dresser drawer of her mother's room.

Since then, McCabe has learned that Duffy Lincoln gave his sister the diamond ring after their mother's death. She said she also learned that the knife that Best referred to had been seized from Leslie's truck. McCabe said she remembered that knife because Leslie Lincoln used it at work to cut tennis balls. The rest home put those cut tennis balls on the bottom of residents' walking aids for better traction.

"I know a lot of things have gotten misconstrued, including a lot of things that I said," McCabe said.

The police declined to discuss any of the allegations about Best's tactics. Best, who is now retired from the Greenville Police Department, did not return messages left for him.

Little ray of light

After his sister's arrest, Duffy Lincoln took over her affairs. He said he tried to keep up with her house payments and her three horses, but in a year, the $10,000 she had in savings ran out, and he was forced to sell the horses and let the bank foreclose on the house.

"Everything she worked for is gone," he said.

Lincoln and his niece, Lyn Roman, visit Leslie Lincoln in jail every Sunday He said that most weeks his sister is optimistic. She has learned to get along in jail. She reads mysteries and plays cards with the other women. The Pitt County Detention Center doesn't allow its inmates in maximum custody outside, so she hasn't been outdoors, except for court appearances, since the day she was arrested.

One week in July when the temperature in Greenville reached 102 degrees, Sharla Lincoln said she spoke with her sister-in-law by phone.

"Hey, there, what's up?" Leslie Lincoln asked.

"I'm trying to stay cool and out of the sun," Sharla Lincoln replied.

"That's funny," Leslie Lincoln said. "I've got this little ray of light coming through the window. I'm standing in it, and I'm trying to stay in it as long as it's here."

Lincoln is scheduled to go on trial next month. Everett has declined to say why he took the death penalty off the table.

Court records hint at evidence that the state may present and at possible motives. Drugs appear to be one motive considered by police.

After the killing, Duffy Lincoln told police that the OxyContin that his mother took for shingles was missing. OxyContin is a powerful painkiller, with a high street value. Eventually, he and his wife found his mother's OxyContin hidden away in a kitchen cabinet, they said. They said they left a message with the police department that they had found the OxyContin. In spite of that, the request for a search warrant of Leslie Lincoln's house and truck several weeks later mentions the missing OxyContin.

According to motions filed by Lincoln's attorneys, the state's case relies on statements by women who were in jail with her. One motion asks the court to prohibit testimony from such witnesses, and alleges that investigators have shown photos of the crime scene to potential witnesses and told them facts about the case that could distort their testimony. Lincoln's attorneys also allege that the district attorney's office has made a deal with at least one informant, and they asked that the state disclose any deals it makes with witnesses. Everett declined to say whether he would be using jailhouse informants.

Another defense motion alleges that police failed to investigate other leads, including one about a man seen around Arlene Lincoln's home on the Sunday afternoon of the State-UConn game and another regarding noises heard in her condo about 6 a.m.Monday.

The police theories that Duffy Lincoln is aware of have all been discredited in his mind. The missing OxyContin was found. He was the person who gave Leslie Lincoln their mother's diamond ring. And, most important, his sister's DNA was not on his mother's bloodstained sheets.

Duffy Lincoln said he always cooperated with the police in the belief that the investigation would move away from his sister.

"Every time I interviewed with them it seemed it always went back to Leslie,'' he said. "I guess in my naivete I thought they'd figure out she didn't do it and move on to who really did it.

"It was almost surreal that they were after Leslie. When I watch CSI or something, one of the investigators says, 'Don't chase the suspect. Follow the evidence.' And they never did that."

• Phoebe Zerwick can be reached at 727-7291 or at pzerwick@wsjournal.com

Saturday, August 20, 2005

Ill. police claim lab botched DNA tests

Ill. police claim lab botched DNA tests
The Associated Press
(Updated Friday, August 19, 2005, 8:07 AM)

SPRINGFIELD, Ill. (AP) - Illinois state police canceled a contract with a nationally known DNA laboratory because it failed to detect the presence of semen on tests of evidence in nearly a dozen cases, officials said.

No one appears to have been freed as a result of the errors at Virginia-based Bode Technology, Doug Brown, a first deputy director with the state police, said Thursday.

"We're very angry about it, we are very disappointed," he said. "We are very lucky that our quality assurance caught this."

Illinois authorities conducted quality checks on 51 of 1,200 rape kits Bode had said contained no semen, Brown said. They discovered that 11 of the tests, or nearly 22 percent, had simply failed to detect the semen.

Springfield, Va.-based Bode does testing for at least 10 other states as well as for the Department of Justice, Brown said.

Illinois police sent a letter to Bode on Thursday canceling a three-year, $7 million contract. State Police will seek to have up to $750,000 refunded and ask Bode to pay to have all its samples retested at different labs, Brown said.

A message left Friday for Chuck Jones, a spokesman for Bode's parent company, Alpharetta, Ga.-based ChoicePoint Inc., was not immediately returned. On Thursday, Jones said the lab had not been made aware of any specific complaints.

"Bode Technology has successfully processed more than 2,000 cases for the Illinois State Police over the past year," he said.

ChoicePoint has been under fire for a security breach at its data brokering operations that let criminals gain access to its database of personal information.

Monday, August 08, 2005

Evolution of DNA Evidence for Crime Solving - A Judicial and Legislative History

HIGH PROFILE CELEBRITY TRIALS AND CRIME TELEVISION SHOWS SUCH AS CSI HAVE HAD A MONUMENTAL EFFECT ON RAISING PUBLIC (AND CONSEQUENTLY, JURY POOL) AWARENESS OF DNA’S ROLE IN THE CRIMINAL INVESTIGATION PROCESS. DESPITE ITS MORE RECENT DRAMATIC APPEAL, THE USE OF DNA EVIDENCE HAS UNDERGONE A CAREFUL, STEADY EVOLUTION TO BECOME A STANDARD FORM OF ADMISSIBLE EVIDENCE IN TODAY’S COURTROOMS.

The extensive scrutiny that has been placed on DNA evidence over the years is due not only to the relative newness of the technique in the judicial system, but also to the sheer power of DNA to discriminate between individuals and hence to convict or exonerate.

In recent years, legislative issues have become the focus, stemming from the increased use of DNA databanking and the movement to allow post-conviction DNA testing.
Early Days

DNA profiling was originally developed as a method of determining paternity, in which samples taken under clinical conditions were examined for genetic evidence that could link parent to child. It first made its way into the courts in 1986, when police in England asked molecular biologist Alec Jeffreys, who had begun investigating the use of DNA for forensics, to use DNA to verify the confession of a 17 year-old boy in two rape-murders in the English Midlands. The tests proved the teenager was in fact not the perpetrator and the actual attacker was eventually caught, also using DNA testing.

The first DNA-based conviction in the United States occurred shortly after in 1987 when the Circuit Court in Orange County, Florida, convicted Tommy Lee Andrews of rape after DNA tests matched his DNA from a blood sample with that of semen traces found in a rape victim.1 The first state high court to rule in favor of admitting DNA evidence came two years later in West Virginia.2

In the first years following these groundbreaking cases, the admissibility of DNA evidence was not largely disputed. That began to change once the technique began to become more widely used by prosecutors. Soon defense attorneys began challenging the admissibility of DNA tests.

Admissibility Standards.

In general, two standards are used to judge the admissibility of novel scientific evidence - the “Frye standard” and the “Daubert standard.” The Frye standard originates from a 1923 case, Frye v. United States, where the court ruled that, to be admissible, scientific evidence must be “sufficiently established to have gained general acceptance in the particular field in which it belongs.”3

The Daubert standard is more recent, derived from the 1993 case Daubert v. Merrell Dow Pharmaceuticals, where the Supreme Court went beyond Frye to say that evidence must have sufficient scientific validity and reliability to be admitted as relevant “scientific knowledge” that would “assist the trier of fact.”4

Challenges to Admissibility

People of New York v. Castro was a landmark murder case commonly cited as the first serious challenge to the admissibility of DNA evidence. During the pre-trial hearing in the New York Supreme Court, DNA evidence from a bloodstain on the defendant’s watch was in question. The court determined that DNA identification theory, practice, and techniques are generally accepted among the scientific community, and that pre-trial hearings were required to determine whether the testing laboratory’s methodology was in alignment with scientific standards and produced reliable results for jury consideration.

However, the testing laboratory’s procedures were called into question and expert testimony revealed that the lab had failed to use generally accepted, reliable techniques that could prove the blood on the watch was that of the victim. Interestingly, the Court did allow the DNA tests that ruled out the blood as that of Castro – upholding the DNA tests for exclusion but not inclusion since the process for determining a match is more complex than ruling out a match.

Because of its exhaustive process attempting to analyze the admissibility of this DNA evidence, in its opinion the New York Supreme Court outlined recommendations and requirements for future discovery phase proceedings, including the provision of copies of all laboratory results and reports to the court and defense, explanation of statistical probability calculations, explanations for any observed defects or laboratory errors, and chain of custody of documents.

While the late 1980s and early 90s saw a number of judicial challenges to the admissibility of DNA evidence, most important cases established the admissibility of DNA evidence, when properly collected and analyzed.5 Where inadmissibility was found, it was largely due to questions about the validity of techniques used to derive or interpret the DNA profile (such as population statistics), or about the reliability of the lab or technician performing the analysis.6,7
In one such case, the Supreme Court of Minnesota acknowledged the scientific acceptance of DNA testing, but stated that “admissibility of [DNA] test results in a particular case hinges on the laboratory's compliance with appropriate standards and controls.” 8 In this case, the laboratory’s protocol and methodological validation process were deemed insufficient and the evidence was dismissed.

Even though DNA testing would grow more ubiquitous in the criminal justice system over its first fifteen years in use, another wave of cases came with advancements in DNA testing technology. Specifically, the movement toward abandoning the original methodology, restriction length fragment polymorphisms (RLFP) using VNTR loci, in favor of polymerase chain reaction (PCR) and sequencing technology using short tandem repeats (STRs) gave defense lawyers another opportunity to challenge the admissibility of DNA evidence by calling into question the new methodology’s reliability for determining DNA identification.

These issues were, for the most part, resolved in a string of cases around the year 2001 where courts repeatedly supported the method as reliable and accepted, with some recommending that the technique in general should no longer be the subject of judicial scrutiny,9,10,11 even in one Colorado case where the DNA evidence was initially found inadmissible based on questions about the DNA testing kit’s validation, but on appeal ruled generally accepted and admissible.12

The Emergence of DNA Databases

In addition to important court cases scrutinizing the reliability of DNA evidence upon review of laboratory methodology and validation processes, the introduction of the Federal Bureau of Investigation’s (FBI) Combined DNA Index System (CODIS) forensic DNA database – mandated by the federal DNA Identification Act of 1994, provided another set of pressures on forensic laboratories to ensure their methodologies were sound and validated.

All DNA laboratories that are federally operated, receive federal funds, or employ software prepared for the CODIS are required to demonstrate compliance with the standards issued by the FBI. (Note: For a description of these and other standards that have governed DNA testing laboratories, see our earlier article from this series “Evolution of the Quality Assurance Documents for DNA Laboratories” Forensic Magazine, February/March 2005.)

Similarly, the Violent Crime Control and Law Enforcement Act, implemented in 1994 advocated for uniform standards to be used for forensic DNA testing. It further provided federal support for state and local law enforcement agencies to improve their DNA testing capabilities.

Development of All Felons Databases

In addition to CODIS, all 50 states maintain DNA databases. The types of profiles that are included vary from state to state, with a general trend toward expanding the crimes justifying inclusion. In 1990, Virginia became the first state to enact an all felons’ law that required DNA from anyone convicted of a felony. Most states at that time included only certain offenses, such as sexual assault. By 1999, six states had All Felons databases and today there are 38 states with this legislation; the majority of the remaining states have some legislation in review to expand their DNA databases to include all felons.

The expansion of DNA databases has led to a growing number of “cold hit” cases, where no suspect has been identified, but samples from a crime scene submitted to the local, state or federal DNA database result in a match from a previously convicted offender. In 2002, Virginia became the first state to execute a criminal convicted of murder and rape based on a “cold-hit.” As testimony to the importance of DNA databases, the convicted felon, James Earl Patterson, was already serving time for a rape and was scheduled to be released in 2004.

Emergence of “John Doe” Warrants

In addition to facilitating “cold hits,” DNA database legislation has given rise to a new type of arrest warrant – termed “John Doe” or “DNA” warrants because the warrant is issued not for a named person, but for a genetic code identified as part of a criminal investigation for which no suspect has been identified and no database match has yet been found. In September of 1999, a district attorney in Wisconsin became one of the first prosecutors to obtain a warrant and file criminal charges against a man identified in the warrant solely by his DNA profile. The primary purpose of these warrants is to toll the statute of limitations in cases of violent crimes. Many states have sucessfully convicted offenders based on John Doe warrants and several, such as Wisconsin, have passed legislation legallizing their use.

Post Conviction DNA testing

Just as recent legislation has supported the increased use of DNA for prosecution, legislation to protect the falsely convicted has also been gaining ground in recent years. Since 1989, more than 150 people imprisoned in the United States have been proven innocent through post-conviction DNA testing. The Innocence Project was established in 1992 to support the rights of convicted felons who maintain their innocence and has been a driving force in supporting legislation in this area, and most states have since passed special statutory provisions for post-conviction DNA testing.
Justice For All

On October 30, 2004, President George Bush signed the Justice for All Act, which significantly enhanced funding and guidelines for the use of DNA technology in the judicial process. Among other things, the Act strengthened the rights for convicted felons to obtain post-conviction DNA testing if they assert their innocence and that the DNA testing would produce new evidence in support of that innocence, and the DNA testing would create a reasonable probability that the applicant did not commit the offense.

In addition, the law authorizes additional grants to states and local governments to analyze DNA samples and improve DNA labs. It promotes quality assurance in DNA testing by requiring government labs to undergo accreditation and auditing at least once every two years to prove compliance with federal standards. Under the law, CODIS is expanded to allow state crime labs to include the DNA profiles of all individuals whose DNA samples were lawfully collected, including samples from arrestees and juveniles adjudicated delinquent. The law also extends the statute of limitations at the federal level in cases where DNA testing implicates a perpetrator until the time that perpetrator’s actual identity is discovered.

Conclusion

The utility and power of DNA as a tool to convict criminals or exonerate suspects has been greatly supported by the careful legal reviews and stringent quality assurance guidelines that have been developed over the course of nearly twenty years.

The ongoing legislative and judicial reviews at state and federal levels has contributed significantly to the evolution of DNA analyses and played an important role in its rapid adoption as a legal tool. This careful scrutiny has also made DNA analysis one of the most robust and powerful tools used today in the criminal justice system.

As the technology continues to advance, judicial and legislative reviews should continue to ensure that DNA analysis serves justice and protects the public.

References
1) Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988) 2) State v. Woodall 385 S.E.2d 253 (W. Va. 1989) 3) Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) 4) Daubert v. Merrell Dow Pharmaceuticals, 113 2786 (S.Ct. 1993) 5) United States v. Yee , 134 F.R.D. 161, 208 (N.D. Ohio 1991) 6) Commonwealth v. Curnin, 409 218, 565 N.E.2d 440 (Mass.1991) 7) State v. Bible, 858 P.2d 1152 (Ariz. 1993) 8) State v. Schwartz, 447 N.W.2d 422, 428 (Minn. 1989) 9) People v. Hill, 107 Cal. Rptr. 2d 110, 89 Cal. App. 4th 48, 59-60 (Calif. 2001) 10) Lemour v. State, 802 So. 2d 402 (Fla. Dist. Ct. App. 2001) 11) State v. Butterfield, 27 P.3d 1133, 1144 (Utah 2001) 12) People v. Schreck, 22 P.3d 68, 81 (Col. 2001)

Karen Cormier is Associate Product Manager at Applied Biosystems. She can be reached at CormierKE@appliedbiosystems.com.
Lisa Calandro is Senior Forensic Scientist at Applied Biosystems. She can be reached at Lisa.M.Calandro@appliedbiosystems.com.
Dennis Reeder is Senior Scientist, Validation Group at Applied Biosystems. He can be reached at ReederDJ@appliedbiosystems.com.
Applied Biosystems, 850 Lincoln Centre Drive, Foster City, CA 94404; 800-327-3002; www.appliedbiosystems.com.

Thursday, July 07, 2005

REASONABLE DOUBT WITH DNA

Reasonable Doubt
DNA is supposed to deliver absolute truth. But
a growing number of scandals in crime labs
across the country are raising questions about
the criminal justice system. Now the focus is
on Virginia.
by Laura LaFay
July 6, 2005
Reasonable DoubtDNA is supposed to deliver absolute truth. But a growing number of scandals in crime labs across the country are raising questions about the criminal justice system. Now the focus is on Virginia.by Laura LaFayJuly 6, 2005Television has taught us that DNA never lies. Foolproof and irrefutable, neutral and reliable, DNA is science. It’s us, a unique genetic blueprint of every human body, part of every cell. As such, it cannot be faked, rigged, altered, improperly influenced or bribed. It cannot be induced to commit perjury or shot to prevent it from testifying. DNA delivers truth. Therefore, anything contradicting what DNA tells us must be a lie. In a court of law, observes Richmond criminal defense lawyer David Baugh, this belief is almost impossible to overcome.
“If you put God on the witness stand,” Baugh says, “and God’s testimony conflicted with the DNA evidence, everyone would automatically say, ‘Why is God lying like this?'"
If the assumption is that DNA delivers truth, then the Virginia Department of Forensic Science, otherwise referred to as the state crime lab, can do no wrong. It’s the Mount Olympus of DNA. When DNA analysis in criminal investigations was in its infancy 15 years ago, the Virginia crime lab got in on the bottom floor and constructed its foundation on DNA.
It was the first state crime lab in the country to perform DNA testing on-site and the first to develop a DNA databank, which now contains genetic profiles of thousands of felons. Its examiners teach DNA analysis at the Virginia Institute of Forensic Science and Medicine. Its director, Paul Ferrara, helped develop the quality and proficiency standards against which all DNA testing is judged. As if all of this were not enough, former crime lab employee Patricia Cornwell has churned out a number of best-selling novels in which heroic forensic experts at a fictionalized version of the lab fight evil with science.In the nonfictionalized world, however, recent revelations threaten both the lab’s public image and long-held assumptions about DNA, or deoxyribonucleic acid. There is mounting evidence that suggests DNA analysis is far from foolproof. And recent gaffes by crime labs across the country are raising new doubts about the science of gathering and analyzing DNA — and its potential abuse in a political system that puts a premium on swift criminal prosecution.
Virginia’s crime lab is a case in point. In the spring, an audit of the crime lab’s work on a single death penalty case found, among other things, that the lab botched and misinterpreted DNA tests twice, on separate occasions, seven years apart. When it was asked to review the results for error, the audit report says, the lab detected none.
Responding, Ferrara said the Department of Forensic Science is “gratified that the audit report does not suggest any evidence of systemic deficiency.”
In light of its findings, the auditors, members of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB), advised Gov. Mark Warner that the lab’s results in other cases should also be reviewed. Warner agreed.
In early June, DNA experts from Texas, Indiana, North Carolina, Pennsylvania and Maryland were summoned to Richmond. Their project, now under way, involves scrutiny of crime lab documents produced in 161 cases. Among these are 26 cases in which the lab’s DNA test results assisted the state in procuring a death sentence.
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Wednesday, July 06, 2005

TEXAS FORENSIC SCIENCE COMMISION

Editorial: State watchdog panel will further justice
Web Posted: 07/01/2005 06:15 PM CDT
San Antonio Express-News

The criminal justice system needs the Texas Forensic Science Commission. The extensive problems uncovered in the processing of criminal evidence in some Texas police crime labs warrant it.

The legislation creating the commission was recently signed by Gov. Rick Perry.

The final compromise bill does not go as far as some lawmakers wanted. It does not set up regional crime labs as some had proposed, but it does provide for checks and balances within the system.

Some have likened the Forensic Science Commission to an internal affairs investigation unit for crime labs. The role of the appointed members would be to look at allegations of professional misconduct in relation to forensic analysis.

Maintaining the integrity of evidence in a criminal case is of the utmost importance. The work of the Innocence Project at New York's Cardozo Law School confirms that.

It was through the Innocence Project that 44-year-old George Rodriguez was released from prison in October.

New tests on evidence in his case indicated his 1987 conviction for kidnapping and rape may have been based on mistakes made by analysts in the Houston Police Department's crime lab.

Rodriguez's case is not isolated. Two other Texas men won release from prison after errors in the analysis of evidence in their cases were uncovered.

Not all crime labs in this state are created equal. Many of them, including the one in Bexar County, have attained accreditation from the American Society of Crime Lab Directors Laboratory Accreditation Board, and that is commendable.

All crime labs should strive to meet those standards. And they will, as the Department of Public Safety continues to oversee the accreditation of the crime labs in Texas.

The work the crime labs do must be of the highest quality. There is not enough money in the world to compensate someone who has been convicted on faulty evidence.

The Texas Forensic Science Commission won't automatically solve the state's crime lab woes, but it is a big step in the right direction.

DNA TESTS UNDERUSED IN CRIME CASES, STUDY SHOWS

Tuesday, July 5, 2005
By NICHOLAS K. GERANIOSTHE ASSOCIATED PRESS

PULLMAN -- Ophelia McKnight was last seen alive on Jan. 5, 1988, in downtown Seattle. Her body was found a month later.

In June, 17 years after the crime, DNA evidence prompted her killer to confess.

Such outcomes could be much more common, but a new study by researchers at Washington State University found that forensic DNA analysis is woefully underused in the United States. The study estimated that 250,000 unsolved rapes and homicides in the United States since 1982 -- more than half of such crimes -- have yet to be subjected to DNA testing.

"The effectiveness of forensic DNA has created a tremendous testing demand that is not met by the available supply," said Travis Pratt, a criminal justice professor at WSU.

The reasons for low usage include lack of money, trained personnel and other resources to do the complicated tests. The survey also found that some law enforcement agencies were reluctant to take and store DNA evidence and did not think it was valuable until after a suspect had been identified.

The study used information provided by law enforcement and forensic laboratories to reach its conclusions.
The situation in Washington appears better than it is nationwide, said Lynn McIntyre, who runs the Seattle crime lab of the Washington State Patrol. Washington also performs DNA tests at crime labs in Spokane, Tacoma and Marysville, and plans to open a fifth lab in Vancouver, Wash., next year, she said.
The state has a backlog of about 900 cases needing tests, about 130 are more than a year old, she said.

Decisive DNA

Date published: 7/6/2005

Decisive DNA

THE EXECUTION of an innocent person is the definitive example of a criminal-justice mistake that can't be fixed. Virginia has 23 inmates on death row, and ranks second behind Texas with 94 executions since the Supreme Court reinstated the death penalty in 1976. (Texas has killed 345 inmates since then, by the way.)

The least that any state can do before imposing a death sentence is to be as certain as available technology permits that it is executing the right person. The advance of DNA science can assist in meeting that basic standard.

Interestingly, the national groundswell in support of DNA "reconfirmation testing" traces its origins to central Virginia, where Fauquier County resident Earl Washington Jr. took the fall for the 1982 rape-murder of a Culpeper woman. An examiner with the Virginia Division of Forensic Science botched an early version of DNA testing in Mr. Washington's case, a miscue falsely connecting him to the crime scene. A later investigation left the testing in other cases handled by the lab shrouded in doubt.
Retesting cleared Mr. Washington, and in 2000 he was pardoned. He is among 119 death row inmates nationwide found innocent and set free during the past 30 years. How certain can anyone be that there are no other denizens of the Death House, in Virginia or elsewhere, shoved toward the gallows by false evidence?

Early in his term, Gov. Warner humanely ordered the re-examination of DNA testing procedures in some 160 criminal cases where such evidence played a role. He stopped short, however, of dictating actual retesting of available DNA evidence. Now a disparate collection of advocacy groups is calling on the governor to order such retesting in death-penalty cases. Signers of a recent letter to this end include the Virginia Interfaith Center for Public Policy, Virginians for Alternatives to the Death Penalty, the Virginia NAACP, the Rutherford Institute, the Virginia Catholic Conference, the Virginia Council of Churches, and the ACLU of Virginia. The epistle also bears the signature of Earl Washington Jr.

The signatories spotlight the case of Robin Lovitt, scheduled for execution this Monday. DNA tests provided inconclusive results in his case, and authorities later destroyed the evidence under the improper order of an Arlington County court clerk. The group doesn't maintain Lovitt's innocence; it merely questions the life-or-death certainty of his guilt.

The governor should not just accede to the group's request. He should trump it and order retesting in each of the 160 cases beclouded by the substandard crime-lab procedures. No innocent should rot in prison for a crime someone else did. The wonder of DNA technology lies in the virtual certainty of its findings when properly used. Why not use it to its fullest advantage?