Shedding a little light on the reality of DNA evidence

This article is a must read for all criminal defense attorneys and anyone interested in learning the truth about the limitations of DNA evidence.  Please, please read it.  There may be a quiz.

We have come to think of DNA as if it's the perfect evidence.  Infallible.  Incapable of manipulation.  Not subject to interpretation.  And so simple.  It's either a match or it isn't a match. 

All of these notions are wrong.  DNA evidence contains so many more variations and involve so much more nuance than the popular understanding.  This article does a great job of highlighting some of those shades of gray.  It also should provide defense attorneys (who have often been far too complacent in simply accepting what the state's experts tell us about DNA evidence) with some useful ideas for what we should be fighting.  There are lots of rich areas for litigation in the unexplored minefield of DNA evidence.  Sadly, though, to some extent the defense bar has also fallen under the spell of DNA so we aren't taking full advantage of the opportunities for challenge that exist.  When combined with the reticence district court's commonly feel when we ask for expert funding or want to present some new-fangeled scientific theory of defense, we've let some myths about DNA evidence persist, even as the realities are proving to be very different.

First, we need to distinguish between DNA results that include a suspect as a possible contributor and those that exclude a suspect.  Test results that exclude a suspect as a contributor are much more reliable.  False negatives are highly unlikely in DNA testing.  In an ideal DNA comparison, the analyst will look at 13 points of the crime scene evidence and compare them to 13 points on the suspect's DNA sample.  Those points are called loci.  If any one of those loci are different, then it's pretty clear the suspect is not the source of the crime scene evidence.  (Usually, in a non-match, most, if not all, of the loci won't match.) 

Think of it like the tire marks in "My Cousin Vinny."  The tire marks could not have been made by a '64 Buick Skylark because it had a solid rear axle and did not have positraction, the car equivalents of loci.  That car can be categorically excluded as a possible contributor to the tire marks.  Heck, it could have been excluded on the basis of the positraction alone.  The rear axle was just gravy.

A result that includes a suspect as a possible contributor (otherwise referred to by the state as a "match") is not as black and white.  Like the '63 Pontiac Tempest that Sheriff Farley tracked down.  It did have all the necessary physical attributes to have left the tire marks.  Plus, there is other evidence that makes it even more likely that the particular car Farley testified about was, in fact, the car involved in the shooting.  Of course, it is theoretically possible that there is an identical '63 Tempest out there that just happens to be connected to the crime, but it's pretty darn unlikely.

That's a very simplified analogy, but I think it helps to highlight the preliminary point about the difference between exclusionary results and "match" results.

In a perfect world, a "match" would involve the comparison of the full 13 loci of the crime scene evidence against the full 13 loci of a known suspect.  In that ideal world, a match is pretty strong and powerful evidence.  

The real problem with DNA matches is that most crime scene evidence isn't that perfect world evidence of 13 loci.  Most are partial profiles, with only 9 or 10 loci, or even fewer.  In the case highlighted in the Washington Monthly article, only 5 1/2 loci were available.  In addition, a lot of evidence is a mixture, meaning it contains DNA of two people, which can be more difficult to separate and decide which DNA markers belong to which contributor.  It is with these cases that DNA evidence begins to lose its power.  When the profiles are partial and when they include mixtures, declaring a "match" becomes a much more subjective process. From the article:

In 2005, Peter Gill, then a researcher at the Forensic Science Service, which administers the national DNA database for the British police, told a conference of forensic scientists, "If you show ten colleagues a mixture, you will probably end up with ten different answers." Dan Krane, a molecular biologist at Wright State University and a leading critic of the government’s stance on DNA evidence, agrees. "There is a public perception that DNA profiles are black and white," he told me. "The reality is that easily in half of all cases—namely, those where the samples are mixed or degraded—there is the potential for subjectivity."

DNA matches aren't declared by computers just spitting out clear and uncontested results. 

My biggest quibble with DNA evidence has always been the statistical analysis presented to the jury to show just how (un)likely it is that some random individual could match the evidence.  It's always some astronomical probability, like 1 in 1 quadrillion.  There aren't anywhere near a quadrillion people on the planet, so you can see how powerful that evidence is.  Sometimes for a mixture or a partial profile, you might get that lab analyst to reduce the probability down to something like 1 in a million, which still sounds pretty big to most people.  But the lab analysts testifying to these outlandish probabilities aren't statisticians or mathematicians at all.  They're biologists.  They usually don't know anything beyond the most rudimentary probability statistics, if they even know that.  They just get these numbers from some big database created by the FBI; the actual lab analysts who testify in criminal cases can't defend how those numbers were derived.  But they're always really sure of them.

We're starting to realize that those numbers probably can't be defended.  Really, read the article.  Over the past few years, researchers have stumbled upon a stunning secret about DNA: matches of partial profiles are a lot more common than we had realized.  In Arizona and Illinois, researchers found hundreds of random matches.  A detailed search of the Arizona DNA database found 122 sets of profiles that shared 9 loci.  It's far more possible for two random strangers to share 9 DNA loci than the FBI statisticians ever dreamed of.  Imagine how much more likely it might be to find two people in the same database who share 5 or 6 or 7 loci.  So it's become a downright lie for DNA experts to stick to their "1 in a million" probabilities.  We know that the actual occurrence of random matches is much, much likelier than that.

This is going to become a huge problem (if we choose to acknowledge it) as every legislative body in this nation appears hell bent on building up huge databases of DNA from convicted felons.  The idea of these databases is that law enforcement can just then plug in DNA from crime scenes, including old cold cases, and see if any hits come up.  But since a lot of crime scene evidence involves partial profiles and since the purpose is to search for cold hits, it seems inevitable that a random incorrect match will be made.  The probabilities of finding a false match are nowhere near 1 in a million.  In the case mentioned in the article, the true probability was 1 in 3.  Makes finding guilt beyond a reasonable doubt a whole lot harder, doesn't it? 

As you'll learn when you read the article, though, the jury in that case never heard the 1 in 3 figure.  All they heard was 1 in a million.  And they didn't hear evidence about the random matches discovered in the Arizona DNA database.  Why?  Because the judge said all that evidence was irrelevant.  Which is code for "really, really bad for the state's case."  The judge had precedent he could cite to back up his refusal to let the defense challenge the DNA statistics.  In Kansas, we've had some difficulty challenging the statistical evidence, too.  Our Supreme Court has held that the statistical evidence does not implicate the Confrontation Clause so we are not entitled to cross-examine the actual statisticians who programmed the probability software that every DNA biologist uses.  Courts seem reluctant to look too closely behind the curtain of DNA evidence.  Indeed, courts have historically been hesitant to let defense attorneys present experts who challenge what we all think we know about things like false confessions and eyewitness identifications.  There's no reason to think courts will be less reluctant to let us challenge the assumptions we have made about DNA evidence.

Finally, as this article highlights, the potential problems with DNA evidence are further complicated by the fact that most crime labs in the country are under the direct control of law enforcement.  The FBI has started playing tough with states who allow defense counsel too much access to their DNA databases.  They don't want us poking around too much and investigating the truth of their scientific claims.  They don't want to do the hard work to get at the right results; they just want the quick, dirty, and easy answers, evidently without concern for whether those answers are the right ones.  Once again, when science and law enforcement come together, scientific integrity inevitably takes the back seat.

DNA can be an excellent tool in the criminal justice system but we have got to learn how to use it correctly.  We have got to acknowledge its pitfalls and limitations.  We, the defense bar, have to stop accepting it as smoking gun evidence.  We have got to develop the statistical analysis so we can truly challenge it in court.  We have got to find experts in probability that we can call to the stand to explain these things to juries and courts.  We have got to do more to expose the problems with partial profiles and mixtures.  We have got to fight against the criminal justice system's reluctance to get at the best evidence.  We have got to break the hold that DNA evidence has over us.  Otherwise, we'll never get to the truth of it.

Strange bedfellows

I've seen a lot of things in my years as a public defender, but I don't think I've ever before seen something like this: a group of 21 prosecutors and former judges filing an amicus brief on behalf of a defendant.  Charles Dean Hood was convicted of murder and sentenced to death in 1990.  Since then, rumors have run rampant that the prosecutor had engaged in a sexual relationship with the prosecutor, but Hood and his defense attorneys were never able to prove it until 2008.  Once they finally got the judge and the prosecutor to fess up, they asked the Texas Court of Criminal Appeals to grant Hood a new trial.  Inexplicably, that court said, "No biggie.  Conviction stands."  Largely blaming Hood and his lawyers for not complaining earlier about the secret affair they couldn't prove until 2008.  So Hood's attorneys filed a cert petition to the U.S. Supreme Court, which is where the amicus brief comes in.

It would be like a dream to have prosecutors and former judges file a brief urging for a reversal in one of my cases.  Appellate courts are used to defense attorneys like me exclaiming just how prejudicial the errors were and that this client really, really needs a new trial.  They don't often get that kind of argument from prosecutors.  If that many prosecutors will publicly ask the United States Supreme Court to overturn a conviction, well then there's probably something seriously, and obviously, wrong with the conviction.

You can't take it back

Dealing with the media is one of the trickier parts of my job.  For the most part, they leave me alone, but every once in a while, I get one of those high profile cases that get lots of coverage.  Now, usually the reporters are a little more interested in talking to the prosecutor, but they do also see if I might have any comment worth printing.  It's kind of a heady experience, to see your name in the newspaper, to be quoted, or to have a news camera on you and a microphone in your face.  Make no mistake about it, it's fun to be on the evening news.  It makes your parents proud.  They might even DVR the moment and insist on saving that recording for the rest of eternity, showing it to any unfortunate friends or family who come over for dinner.  Being asked to comment by a reporter is definitely an ego boost that makes you feel big and important.  And we lawyers do love to talk, so it's sometimes hard to resist the temptation to do just that when someone asks you to talk about your case.

But you have to put all that aside because it isn't about you.  It is always, always, always about the client.  Everything I say and do needs to be about my client.  If I talk to the press, it should be to advance my client's case, not to satisfy my own ego.  The first time I had a case where I expected to get questions from a reporter, I thought about it well in advance.  I thought about whether I wanted to say anything at all.  Would my client benefit or be harmed by me giving a quote to the local paper?  If the answer is that he would not benefit in any way, I feel it's best to keep my mouth shut.  My first and only purpose is to zealously advocate for my client. 

The press can certainly be a useful tool in criminal defense if used correctly.  But it can also sink your client.  Especially in the age of Google, where anything you say will remain accessible in perpetuity.  I would so much rather say nothing than the wrong thing.  Because you can't take it back.  Not once it's already out there.  My rule, then, is if I don't know in advance what I'm going to say and why, then I just don't say anything.

So I cringed when I read this story.  The lawyer representing the Alabama professor charged with shooting 6 people at a faculty meeting doesn't appear to have thought it through before talking to the press.  And because he spoke too reflexively and candidly, he wound up with a national news story quoting him as saying that his client was a wacko.  Oh, and that she's aware of what she's done and is very sorry.  Now he wants to take it back, but, of course, he can't.  There will always and forever be a record that this woman's lawyer called her a wacko and admitted her guilt before there was even a preliminary hearing.

Young lawyers and law students, consider this a cautionary tale.  Never, ever talk to the press until you've thought about what you're going to say, why you're going to say it, and how it helps the client.  Nobody ever lost a case by telling a reporter, "No comment."

One lousy vote

Today, the Kansas Senate debated a bill to abolish the death penalty in my fine state.  Though I had the day off, I stayed glued to my computer most of the day listening to the debate.  I could have had lunch with friends I don't normally see during the day, but I didn't.  I thought maybe, just maybe, we could muster the votes to pass the Senate.  I knew there would be a fight in the House and the Governor had made statements suggesting he wouldn't sign it, but still.  I had hope.

The debate started off well, with an eloquent and thorough argument in favor of abolition.  Then there was an attempt to table the bill by sending it back to committee.  Such an action would have made sure the bill never saw the light of day again.  That motion was defeated and so the debate went on.  A very pro-death penalty senator moved to amend the bill in such a way that it would have stripped the bill of its abolition language.  At this point, the debate hit full throttle.  Senators began to speak up forcefully on their insistence that justice could not be had without the death penalty.  Some insisted that there is a deterrent effect, finding meaning in statistics that simply don't have any.  Many made factually inaccurate claims about our own death row residents and their cases.  The rational side of me thought there is no way we can win this debate in Kansas, where people are so gung-ho to kill.  But I was starting to get hopeful.

Through it all, listening over the internet, it was impossible to get a sense of how the numbers would work out.  But we defeated the attempt to kill the bill in committee, so maybe we could defeat this attempt, too.  After some discussion, a vote was taken on the amendment.  20-20.  That was good news in the sense that the amendment failed to pass, but left a proponent of abolition fearing that no one would change a vote on the final bill.  The vote on the amendment, after all, essentially came down to a vote for or against abolition.

The debate then ended and the Senate moved on to other bills.  The debate on one bill went on for an agonizingly-long time, especially given that it was a dreadfully boring issue to this criminal defense attorney.  Finally, it came time to vote on the multiple bills that had been debated that day.  Trying to tally the votes during the roll call was next to impossible.  Half the Senators weren't close enough to a microphone to be heard and they were entering votes on multiple bills.  An inordinate number of Senators chose to explain their votes, which prolonged the wait for a final tally.  Nothing could be gleaned from those speaking up, either, because they were all votes I already knew. 

In the end, the vote was finally stated: 20-20.  The bill failed.  By one vote.  One lousy vote.  It feels like a kick in the gut.  I know I should look on the bright side: that we got half the Senate to vote yes.  I should remind myself that abolition doesn't happen overnight; it takes time to build support for the idea that there are better ways to approach crime and sentencing.  I should be optimistic that we got this many this year, so now we only need to find one more vote for next year.

But all I can think right now is we could have had it this year if we could have found that one more vote today.

PD in boots

As you might recall, last spring/summer, I worked through a soul-crushing workload.  Then things heated up again in December and January.  So after surviving both periods and coming out feeling like I'd done a pretty darn good job for my clients, I decided I deserved a treat.  (Well, ok, I'm  kind of a shopaholic, so it doesn't take much for me to decide I "deserve" a treat.)  So  I got on Zappos one day and by the end of the week, I had these:

Yes, those are bright red cowboy boots.  And, yes, those boots were made for walking.  And kicking a little ass.  I've been walking around with an extra little spring in my step when I've got these boots on.  There's been a bit more stomp and a bit more swagger to my walk.

Be forewarned, folks.  I've got my mojo back.  And with these boots, I think it's safe to say I won't ever again lose it for long.

Settling the Masters case

You may remember the case of Tim Masters in Colorado.  He became a suspect in a high-profile murder when he was just 15 (mostly because he drew scary pictures).  He was eventually convicted of that murder in 1999, after over a decade of living as a suspect.  Then in 2008, his conviction was reversed when DNA testing pointed to someone else.  Masters had also alleged police and prosecutorial misconduct, but I'm not sure those allegations were ever ruled on.  I would guess the DNA test results provided the court a convenient way to dodge those allegations.

Life after exoneration had been proving difficult for Mr. Masters, as I wrote about in that earlier blog post.  But as of this week, his inability to find a job won't have to destroy him financially.  He settled with the County that prosecuted him for $4.1 million.  A separate lawsuit against the city is still pending, so that might not be the end of Mr. Masters' financial compensation.  I've followed this case for many years and could not be more delighted for Mr. Masters that at least the financial hardships he had faced as an exoneree will be taken care of, even if he still must live with other hardships.

But this CNN article has one little detail that cannot go unmentioned.  Two of the prosecutors responsible for convicting Tim Masters of this murder he did not commit are now judges: Jolene Blair and Terence Gilmore.  And, by the way, they objected to the settlement because they wanted their day in court on this case.  Many in law enforcement in Ft. Collins still insist that Masters is responsible for the murder. 

The murder for which Masters was convicted was a pretty high-profile case.  Being able to close a case like that 12 years after the murder gets prosecutors noticed and puts them on the path to becoming judges.  I don't think it's a coincidence that two of Masters' prosecutors became judges after his conviction.  Their roles in securing that conviction undoubtedly played some role in getting them to the bench.  But they won't suffer any consequences when that conviction falls apart.  They won't pay out on this settlement themselves.  They won't be stripped of their robes.  Instead, they'll continue to sit in judgment of other defendants from their high perch, a perch which they climbed up to, at least in part, on the back of Tim Masters.  And they'll express strong disappointment that they didn't get their day in court to defend against this merit-less law suit.  (They didn't call it merit-less; I'm just guessing they think so because they wanted the chance to defend against it.)

Their faux outrage is lost on me, though.  Both Blair and Gilmore were rebuked by the state disciplinary authority in 2008.  Both Blair and Gilmore admitted they failed to turn over potentially exculpatory information.  I don't know exactly how the disciplinary process works in Colorado, but I can't imagine that process didn't include an opportunity for Blair and Gilmore to defend themselves, tell their side, and have their views heard.  In short, they got their day in court.  And they admitted to misconduct. 

I think it's wonderful when men like Tim Masters receive financial settlements for all they've suffered.  But I think it would also be nice if something more could come from this case and others like it.  I think it would be great if we could realize that we can probably find better judicial prospects than prosecutors who will commit misconduct to secure wrongful convictions.

This prosecutor knows who's to blame for prosecutorial misconduct

I know I pick on prosecutors a lot, but sometimes they make it so darn easy.  Like when they act like petulant children after getting called out for misconduct.  The Santa Clara County (CA) District Attorney has announced her office would boycott a particular judge after she overturned a defendant's convictions.  Turns out there was some pretty exculpatory evidence that the prosecution had all along but didn't share with the defense.  Evidently, the Santa Clara County DA's office thinks it's an outrage that a judge would dare hold them accountable for breaking the rules to get a conviction.

Not turning over exculpatory evidence is a major no-no.  Any prosecutor knows that.  So any prosecutor who violates that rule has no one to blame but herself.  The prosecutor certainly has no right to blame the judge who calls her on the misconduct.  But Dolores Carr, Santa Clara County DA, thinks she can not only blame a judge for having the nerve to hold her office accountable for misconduct, but Ms. Carr seems to think she can go further and retaliate against the judge.  I trust this judge won't be so easily bullied into submission.

Technically speaking, Part II

People often express dismay at their perception that defendants are always "getting off on technicalities."  Of course, what people call "technicalities" are often 4th, 5th, and 6th Amendment violations.  I take exception to the idea that Constitutional violations are "technicalities," but that's a different blog post. 

Nobody ever hears about the true, ridiculously technical technicalities that courts use to avoid granting defendants relief on appeal.  The criminal procedure rules in Kansas require that issues be raised at the trial court before they can be raised on appeal.  Fair enough because most issues require some development and consideration of facts, a task which trial courts can do but appellate courts can't as well.  So you can't argue a 4th Amendment issue or a hearsay complaint if there was no suppression hearing or objection at the time of trial.  The statute codifying the rule requires a timely objection below.

That statute has been interpreted to require a contemporaneous objection, which means it's not just enough to litigate the issue below, but you also have to object at just the right time.  For example, here's an excerpt from a transcript I once read:

                         PROSECUTOR: Your honor, I'd offer Exhibit B and ask it be admitted.
                         JUDGE: It's admitted.
                         DEFENSE ATTORNEY: Well, your honor, we'd object.

On appeal, the court concluded that this defendant could not complain about the admission of the exhibit because he had failed to object before it was admitted.  Talk about a technicality.  Because the judge beat the defense attorney to getting the court reporter's attention, the defendant gets no consideration of the appropriateness of the evidence on appeal.  Never mind the fact that it wasn't proper for the court to admit the evidence without waiting for the defense to object or not.

Or then there are the cases where the 4th Amendment issue is the only issue.  The defendant files a motion to suppress the evidence.  A hearing is held and the court rules against the defense, finding that the search was not unconstitutional.  There are no other real defenses to the charge, say it's a drug possession case, so the defense doesn't really want to go to trial, but you can't appeal the 4th Amendment decision if you plead guilty.  So, the defense proceeds to a bench trial on stipulated facts.  The stipulated facts are often written out.  Even though everyone knows that the defense is only proceeding this way because of the trial court's ruling on the suppression motion, if the defense attorney doesn't renew the motion to suppress at the trial AND include an objection to the evidence in the stipulation of facts, the appellate courts may well find that the issue isn't preserved for appeal.

The above examples seem to me like things that are worthy of being derisively labeled "technicalities."  Far more so than an interrogation continued after a suspect requested an attorney or a search conducted without a warrant.

One down...

Huzzah!  Perhaps this is the first clear indication that the evil that is don't ask, don't tell is on its way out.  Dan Choi is an Arabic translator for the Army National Guard who just happens to be gay.  He's been on hold with the military since last year when he was recommended for discharge after publicly disclosing his sexual orientation on The Rachel Maddow Show. 

But now, instead of discharging him and wasting his valuable skill, the military has called the Iraq veteran back to active duty.  No word yet that the world has stopped spinning on its axis or that all hell has broken loose in Pennsylvania because this one man is back serving with his unit.  So, see, maybe it really is as simple as I thought.  You end don't ask, don't tell by ending the discharges. You end it by letting honorable service men and women continue their service, regardless of their sexual orientation.  And it's just not that hard.

Dear prosecutors: I'm not like you

Sometimes, I think prosecutors think I'm just doing my job for show, that I'm just going through the motions so that after my client is convicted we can all pat ourselves on the back for giving him a fair trial. I think some prosecutors think I secretly agree with them that my clients should be convicted and sentenced and then those convictions and sentences should be affirmed on appeal.

Well, those prosecutors think wrong. I'm not just requesting discovery to keep up appearances. And I don't just raise issues to "preserve them for the record." What the hell does that mean anyway?

If I request a report, I read it. I watch every video and DVD. I listen to the tapes. I look at the photos. I'm not going to take your word for it that there's nothing objectionable. I wouldn't much honor the 6th Amendment and that whole effective assistance of counsel thing if I did. So really, don't commit shenanigans with discovery materials and think I won't be angry as long as you tell me there is nothing important in those materials.

When I raise an issue, it isn't so the court thinks I'm earning my paycheck. I raise issues when I believe I have a valid point.

And I really, really don't think it's an acceptable result to convict obviously guilty guys in unfair trials. I care about a lot more than just going through the motions to get to a pre- determined result. I think it matters very much how we get to that result.

I suspect it would scare some prosecutors to realize just how often I truly believe evidence should be suppressed or my clients should be granted new trials. From some of the things they do, I don't think they get that at all.

It's really not hard

So the nation's top two defense officials agree it's time to end "don't ask, don't tell."  John McCain, who is apparently more mean-spirited than I had realized, is "deeply disappointed" because the military is just too stressed right now to have to deal with something so tricky.  Of course, neither Admiral Mullen or Defense Secretary Gates seem in a great hurry to actually end the policy.  They think it requires time and study, that they must think carefully about how to implement a policy that allows gays and lesbians to serve in the military, openly,  honestly, and without pretense.

I fail to understand what there is to study or what there is to discuss about how to implement the policy.  It seems unbelievably straightforward to me, really.  Starting today, if someone in the military is outed, that soldier's superior officers would simply shrug their soldiers and say, "Ok."  And then the powers that be would not pursue a discharge of that soldier.  Really, how hard is that?

I know I've made my feelings known about this topic here many times before, but it bears repeating.  It is so deeply offensive to me that a major department of the U.S. government is still allowed to discriminate so brazenly.  And for no reason other than some people think homosexuality is icky.  And I've never been able to come up with any better reason for that opinion than Leviticus says so, which is really no reason at all because look at all of the other silly things Leviticus says.

Stop talking about it, stop studying it, stop pussyfooting around it.  Just end the policy.  Today.  Stop discharging good, hardworking military men and women.  It really isn't hard at all.