dna
Idiocracy
Apr 16th
There is a moderately entertaining movie called Idiocracy, directed by Mike Judge and starring the less-stoned Wilson brother about a man of perfectly average intelligence who goes into cryogenic deep freeze for a long time and emerges 500 years in the future where the stupid have out-reproduced the intelligent and the Earth is ruled by grunts and monosyllables. Reading some reactions to the death penalty repeal here in CT, it seems to me that the future is now.
First, CT News Junkie reported, in a story with the provocative title ‘Lawmaker Guided By Experience As Defense Attorney’, of the tale of Representative David Labriola. Labriola, a Republican, drew upon his experience as a criminal defense attorney to vote against the repeal of the death penalty, in something that can only be described as fzzt-fzzt-does-not-compute-err-ROR-err-ROR.
You see, Attorney Rep. Labriola represented Miguel Roman. Miguel Roman, you might or might not remember, was the fourth man exonerated in CT with the assistance of DNA evidence. Unfortunately, before that happened, Roman spent 20 years of his life in jail for a crime he did not commit. His actual sentence was 60 years for a murder – one of three that the police believed were linked. Having represented a man you believe is wrongly convicted and has spent decades of his life unjustly in prison is not something a defense lawyer gets over quickly and it is certainly not something that builds confidence in the infallibility of the criminal justice system.
Yet, we have Labriola:
He said the sophistication and reliability of modern DNA analysis is one of the reasons he supported the death penalty statute, which a majority of his colleagues voted to take off the books Wednesday. DNA evidence provides the state with greater assurance that offenders handed guilty verdicts are, in fact, guilty, he said.
I suppose that’s somewhat logical so far, if a bit naive. But here’s the key part:
Labriola recalled that he did present DNA evidence in Roman’s case more than 20 years ago. He said it was one of the first DNA cases in the country. Though the DNA clearly didn’t belong to Roman, prosecutor John Massameno was able to argue that presence of another person’s DNA did not mean Roman was not guilty.
[Ideally, at this juncture, I'd like to Professor Farnsworth uttering his signature "Whaaaa? - you can hear it in your head, can't you? - but I can't find it online. So this equally appropriate reaction will have to suffice.]
This is far beyond any timey-wimey plotline that Steven Moffat could conceive of, but I’m going to try and untangle it. Labriola believes:
1. The death penalty is appropriate.
2. Because DNA evidence provides great assurances that offenders are actually guilty.
3. He knows this because he represented an offender.
4. In whose case DNA evidence was presented.
5. And the DNA evidence excluded his guy.
6. And still his client was convicted.
7. And spent 20 years in jail.
8. ????
9. PROFIT!!!!
Labriola concludes with:
“I think working as a defense attorney for the last 25 years gives me insight into a wide range of issues and some crimes are so heinous that the death penalty is the only justifiable punishment,” he said.
It’s almost as if he got to logical step number 8 above, realized that he was going up the down staircase and ended with the handwavium encrusted “well, I know better”. As a fellow criminal defense lawyer, that last quote of his is especially troubling. I’ve often written that in order to do this job well and honestly, one cannot judge one’s clients and one must take the place of the client and view the world through his eyes. We are the client. We are his advocate and his shepherd. Where does Labriola stop? If some clients are deserving of the death penalty, are others deserving of life without the possibility of release? Are others deserving of 60 years in jail, because, in his opinion, they’re bad people? How do we differentiate the role of the prosecutor from that of the defense attorney? At what point do we stop becoming an advocate and start becoming a mouthpiece – a mere messenger?
For many in this field, capital defense is the holy grail. It is the one job that embodies every ideal that leads us to this work: the defense of those who are most undeserving, the fight for another’s life, the pushback against the mightiest weapon the State possesses in its arsenal. Death penalty defense is more than a job. It is the embodiment of an idea. I believe that one can be a great defense attorney and not like all the crimes that our clients are charged with. Great lawyers refuse to represent people accused of sex crimes. I disagree with that, but I can see it. I believe, however, that anyone in favor of the death penalty has no business representing individuals accused of crimes.
It does not compute.
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Lagniappe (a word I have shamelessly borrowed from today’s MLK-themed edition of Blawg Review, hosted by the inimitable Mark Bennett): “Judge” Andrew Napolitano goes on FOX to suggest that CT delay the implementation of the death penalty repeal by, oh, 5 years so we can quickly execute the 11 men on death row. The stupendous idiocy of that position hardly merits the waste of more pixels.
State forensic lab loses accreditation
Aug 18th
Following up on the troubles of the State Forensic Science Lab, the Courant is now reporting that the lab has (temporarily) lots its accreditation. More troubling is the fact that the agency that accredits these outfits had threatened to pull that accreditation 6 months ago, but acquiesced to a temporary extension of that accreditation. That time has now run out, but there is another inspection scheduled for September 12:
Michael P. Lawlor, Gov. Dannel P. Malloy’s undersecretary for criminal justice policy and planning, said the lab will be reinspected — the date is tentatively set for Sept. 12 — and he was confident that improvements would result in the lab’s reaccreditation. Lawlor said that the accreditation is voluntary, and that “there is no indication that this will affect pending cases between now and Sept. 12.”
He also goes on to opine (seems to be his favorite hobby these days, see this subsequent post) that the loss of accreditation and the problems at the lab don’t affect criminal cases. I respectfully beg to differ. When some of the problems with the lab involve validation techniques (among many, many other things), I’m pretty certain that there will be some impact on criminal prosecutions, at least in the short-term, bringing the validity of the results reported by the lab into question:
Auditors cited weaknesses in supervision, reporting of case results, evidence control, data security, quality assurance, adherence to standard operating procedures for DNA analyses, and validation techniques for DNA test results, among other issues.
What about that statement gives you confidence that there is nothing wrong with the results reported over the past two years?
If nothing else, this revelation that the accreditation was extended by 6 months will – and should – bring additional scrutiny on criminal cases that were resolved in that period. If such a problem was brewing at the lab, why weren’t the courts and defense counsel alerted to them? Why were convictions allowed to be entered based on DNA evidence that was subject to potential errors?
These are questions that will need to be asked – and answered – long after September 12.
State forensic lab under scrutiny
Aug 10th
The Connecticut State Police Forensic Science Laboratory, once considered among the best, most independent and most efficient in the country, is now facing some serious scrutiny by the NIJ, an arm of the Feds. Norm Pattis wrote about this two days ago and it got picked up by the Courant yesterday. Some of the problems facing the lab are well known to those dealing with them on a regular basis: they are severely understaffed, have an astronomical backlog of cases and even had to deal with some expired DNA kits over the last two years, which, while they did not lead to false positives, surely took up some time with re-testing.
But this is much worse. Apparently there’s a 160 page report of the audit done by the NIJ which criticizes several aspects of the lab’s operations, including the qualifications of the supervisors and the ability to adequately and accurately process and examine the evidence:
The audits focused on the sections of the lab that deal with convicted-offender databases and DNA testing. State crime labs must adhere to federal standards for DNA testing.
The DNA audit team raised questions about supervision, reporting of case results, evidence control, data security, quality assurance, adherence to standard operating procedures for DNA analyses, and validation techniques for DNA test results, among other issues.
These are significant questions that undermine the reliability of DNA results, which are often used by juries as the be-all and end-all of proof beyond a reasonable doubt. DNA evidence is the gold standard, considered fool-proof and error proof, in the minds of the layperson. To have a report that calls into question basic things like evidence control, quality assurance and even SOP for analyses is troubling, to say the least.
How accurate are the results reported by the lab over the last few years? How many cases did this affect? How many convictions were obtained on the strength of these criticized standards and procedures? The implications are staggering.
The state lab didn’t provide the Courant a copy of the report of the NIJ, but every criminal defense lawyer must send a letter to the lab requesting that unedited copy. What exactly does it say? We need to know that, unfiltered, without the alterations and suggestions of the state.
I know several of the people who work at the state lab and I like most of them. I don’t envy them right now, because it seems that a lot of these problems are brought about by severe underfunding. But whatever the reason, the credibility of the lab and its results is now in question and that’s not a good thing – either for the lab itself – or for the people who have been convicted or are awaiting trial as a result of the lab’s testing.
And if you’re waiting for DNA results in your case, you may have to wait a long, long time. From this graphic in today’s paper edition of the Courant, the backlog for DNA testing and analysis is now 4 years!
Last March, a state police official briefed the Criminal Justice Policy Advisory Board, made up of police, prosecutors and a cross-section of members of the public.
The facts were alarming, [chief of criminal justice planning for Gov. Dannel P. Malloy, Mike] Lawlor said: 3,900 “unstarted” forensic cases; 1,800 backlogged firearms cases as of March, up from fewer than 800 in January 2009; statutory deadlines looming in more than 160 felony cases.
“There have been outrageous backlogs with the processing of evidence – DNA, fingerprints, computer hard drives, everything,” Lawlor said. “Police in some cases have had to wait months, sometimes a year or more, for results, and that has affected decisions on arrest and identifying suspects. It’s also delayed trials. It’s been a problem for police and prosecutors statewide.”
Lawlor, ever the prosecutor, forgets one important demographic: the criminal defendant. He who is innocent until proven guilty, but more often than not cannot afford to post bail and thus sits in pre-trial incarceration for months and years pending the outcome of DNA testing. This is as much about solving cold cases and identifying suspects through DNA analysis as it is about the speedy resolution of those cases where people are deprived of their liberty based on questionable policies and procedures at the state lab. If nothing else, we should all start filing motions for bond reduction in cases where DNA analysis is outstanding and will take forever.
Best. Quote. Ever.
May 23rd
Look, you folks know it’s no secret that I’m disillusioned with the people that pretend to govern us, especially when it comes to their views on justice and crime. This disenchantment has been solidified in the current legislative session, starting with EdithGate and today’s news that the abominable DNA upon arrest bill staying alive. This bill, you will recall, permits the state to take DNA samples of any arrested of a crime. The DNA profile would then remain in the State’s database until you were acquitted and then you jumped through bureaucratic hoops to get it removed.
Explains State Rep Hewitt, a proponent of the bill:
“If I walked out of this door right now and I was arrested for rape with an eyewitness and there was DNA found on the scene of that rape — God help me I wish they would take my DNA.
I’d wish the same too. And you know what? They do. It’s usually titled ‘Motion for Non-Testimonial Evidence’ and is always granted, because there’s no basis to object. Then the police take a buccal swab of the defendant, do some science-y magic and decide if you’re the guy. It. Happens. All. The. Time.
Said another:
Rep. Don Clemons, D-Bridgeport, said it was the rape and murder of his son’s mother more than 30 years ago in Bridgeport that makes him inclined to support the bill. He said from 1978 to 1982 there were eight women abducted from Bridgeport and later found strangled and raped. To this day, those cases remain unsolved, he said.
“When I saw this piece of legislation Rep. Hewett produced, it brings back haunting memories,” he said, but he added that the measure could provide resolution for the families affected by those crimes.
And so you’d think there was no hope for individual freedoms and liberties in the Constitution State. But there is. And his name is Peter Tercyak, D-New Britain. Which brings us to the greatest quote ever:
Personally I’ve long argued that we won’t be robbed of our liberties at gun point. We will freely give them up one at a time to solve one problem at a time with our hearts being tugged by one truly horrible story at a time,” he said. “That’s why we’ve coded our liberties as we have.
Take a minute and read it again. Isn’t it beautiful?
Deterrent? Not Actually
Jul 14th
all your DNA are belong to us
The story of the role of DNA in the criminal justice system is quite interesting. Heralded as the ultimate in crime solving, DNA has slowly infiltrated the collective consciousness of the entire nation and infected our lawyers, judges and jurors. It’s a double-edged sword, to be sure: DNA can accurately (or maybe not) identify an individual who leaves behind some trace materials at or in a crime scene, thereby implicating or exculpating a suspect. Fueled by DNA based shows like CSI, jurors became more demanding and mistakenly over reliant on the science, producing the “CSI effect”, DNA, on the other hand, has drawbacks that defense lawyers try to highlight – which I’m not sure have sunk in yet – like the fact that you it can’t tell you when it was deposited. DNA is most famous for high-profile exonerations of people already convicted of crimes and serving lengthy prison sentences.
But DNA is much more than that. As the science grows, the uses and implications of the genetic markers grows by leaps and bounds (see here and for the future, see here).
Which is why DNA, and the collection of DNA, is so attractive to law enforcement agencies. Unfortunately, as is often the case, the evolution of science and technology and the desired application of these new uses conflicts to some degree with the core protections of the Constitution.
Just yesterday, a 3 judge panel of the 9th Circuit heard an appeal in a lawsuit filed by the ACLU challenging the legality of California’s DNA-collection-upon-arrest law. That’s essentially all there is to the law: collect the DNA of everyone ever arrested. (Connecticut tried to pass a similar bill two years ago and it was ultimately rejected.) Under some circumstances, the DNA may never be deleted from their database:
State v. DNA profile
Jan 26th
In these days of DNA, scientific and forensic evidence, it was bound to happen. As this very interesting (and lengthy) opinion from the California Supreme Court details, a “John Doe” warrant issued mere days before the statute of limitations was set to expire, identifying the defendant only by his DNA profile, satisfies the “particularity” requirement of the Fourth Amendment.
The DNA was taken from a crime scene (and victim) in 1994 and after the issuance of the warrant, a cold hit matched the profile to that of the defendant. Only problem is, the DNA taken from the defendant was in violation of then-existing CA law.
The defendant raised several challenges to the warrant: that since the DNA was taken in violation of the law, it was in violation of the 4th Amendment; that this triggered the exclusionary rule; and that the warrant was not specific enough because it was issued in the name of “John Doe”.
You can image the usual responses to such claims. The court relies on the abomination that is Virginia v. Moore to dispense with the first argument: that just because state law prohibits something, doesn’t mean it is a violation of the Fourth Amendment. The second is dealt with by regurgitating the very narrow reading of the exclusionary rule (and the third argument was just plain silly to begin with).
This shouldn’t be a problem anymore for most states, since the statute of limitations for all sex crimes is now one googol years (an actual number). But the case is a curious oddity nonetheless and it is my solemn sworn duty to bring this to your attention.
QED
NAS: Bullshit!
Feb 19th
The NAS just called “bullshit” on many of the forensic techniques used in labs across the country, ranging from fingerprint, blood splatter, hair, arson and fiber analysis to bullet comparisons. The only technique escaping this harsh critique is DNA analysis, which has been the subject of voluminous study and testing.
The report [executive summary] finds fault with almost all aspects of forensic science: from the lack of standards and scientific scrutiny of “accepted” techniques like bitemarks to a lack of any uniform certification standards.
As a result, there has been little rigorous research to investigate how accurately and reliably many forensic science disciplines can do what they purport to be able to do. In terms of a scientific basis, the disciplines based on biological or chemical analysis, such as toxicology and fiber analysis, generally hold an edge over fields based on subjective interpretation by experts, such as fingerprint and toolmark analysis. And there are variations within the latter group; for example, there is more available research and protocols for fingerprint analysis than for bitemarks.
Lawyers can and have gone to town questioning experts on the “reliability” and “scrutiny” of their methods, but this report provides another powerful tool in exposing (in some instances) the pure speculation of this type of expert evidence:
The report points out the critical need to standardize and clarify the terms used by forensic science experts who testify in court about the results of investigations. The words commonly used — such as “match,” “consistent with,” and “cannot be excluded as the source of” — are not well-defined or used consistently, despite the great impact they have on how juries and judges perceive evidence.
In addition, any testimony stemming from forensic science laboratory reports must clearly describe the limits of the analysis; currently, failure to acknowledge uncertainty in findings is common. The simple reality is that interpretation of forensic evidence is not infallible — quite the contrary, said the committee. Exonerations from DNA testing have shown the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis.
The recommendation is not to “junk” all this science, but rather to develop it and to acknowledge and admit its limitations:
Margaret Berger, a professor at Brooklyn Law School and a member of the panel, explained: “We’re not saying all these disciplines are useless. We’re saying there is a lot of work that needs to be done.”
Said U.S. Court of Appeals Judge Harry Edwards, co-chairman of the panel: “There are a lot of people who are concerned, and they should be concerned. Forensic science is the handmaiden of the legal system. . . . If you claim to be science, you ought to put yourself to the test.”
For more reading, go here, here and here. Scott has his take here.
If only they’d used such caution the first time
Jan 4th
As often happens, I lollygag when it comes to writing posts. Then, all of a sudden, in a span of a day of day or two, several stories appear that tie together the strands in my head. Today is such a day.
Percolating in the back of my head was some chagrin directed toward the prosecutors in the Clarence Elkins case (aka #92), the subject of Friday night’s Dateline. Elkins, in a case with some parallels to Miguel Roman, was convicted of raping his niece and raping and murdering his mother-in-law based on one single dubious eyewitness: his niece, who told cops that the killer looked like her uncle. Clarence, meanwhile had an alibi: he had been drinking heavily at a bar and then came home to his wife, who was awake. They went for a walk.
The police, however, got their blinders on because of the statement of the niece, despite the fact that rudimentary DNA testing excluded Elkins. Elkins’ wife, convinced of his innocence, began investigating on her own:
DNA Exoneration FTW
Dec 19th
Following up on the DNA exoneration story from two weeks ago, I can happily point you to this report that Miguel Roman has been granted a new trial and was released from custody today, in time for the holidays.
Judge David P. Gold agreed after a brief hearing today to release Roman, 52, on a promise to appear in court. Roman’s lawyers, citing evidence that appears to exonerate Roman in the 1988 killing of 17-year-old Carmen Lopez, petitioned for a new trial for Roman.
Gold granted that motion today.
Prosecutor David Zagaja noted that the petition for a new trial stems from newly discovered evidence stemming from a technology that “simply didn’t exist” in 1988. It was not immediately clear whether the prosecution will proceed to a new trial or move for a dismissal of the case.
It would be remarkable if the State decided to prosecute him again, so I don’t think that will happen. More likely than not, the charges will be dismissed.
The saddest part of this story is the 20 years of his life that Roman lost.
Close to another DNA exoneration
Dec 6th
The Great State of Seacrest Connecticut might be close to its second DNA exoneration ever. (You know, it’s strange how these things play out. A few weeks ago I remarked to someone that I hadn’t heard anything about the Innocence Project lately and I wondered if they were working on anything.)
Nearly 30 years ago, three women either disappeared or were found murdered. One person linked all three investigations: Pedro Miranda. The police could never get enough to charge him and eventually another man – Miguel Roman – was convicted of the murder of one of them and sentenced to 60 years in prison.
DNA: Something new and something old
Jul 21st
DNA helix
The biggest story of this past weekend is this L.A. Times piece on the accuracy of the DNA identifications and the statistics used to come up with the probabilities of a random match. Much has been said in the blawgosphere (all of it worth reading) by the Greenfield, the Underdog Mark Katz, the public defender dude and an engrossing lesson in statistics by the Windypundit. They’ve done a wonderful job, so I won’t dwell on it much.
The gist is this: A DNA “match” is when the two pieces of biological evidence share the same markers (loci) at 9 random locations (or 11 or 13 or 15…) The odds of that happening, the State usually contends, is one in 6 billion (and they use that number arbitrarily because it is the population of the world). So in essence, they argue that the only person in the world who could be the source of that piece of DNA is the defendant.
The problem should be evident. Of the millions and billions of loci in the human DNA, 9 or 11 or 15 is an infinitesimal fraction. So, it is possible that if we start looking for matches at 20 or 30 or 100 or 1000 loci, the probabilities will drop. Then we might be talking about 1 in 100,000 or 1 in 20,000. Not bad odds, given the populations of cities and countries.
Still, if these “Arizona searches” (as some are trying to call them in an effort to get the name to stick) haven’t reached your State yet, a number like 1 in 300 billion trillion gazillion quadrasesquecentenellian shouldn’t faze you.
DNA cannot tell a jury when it was deposited or whether the donor actually committed a crime during the deposit. This will not change, even if the odds that it was your guy that deposited the DNA get better.
photo credit: beckita115
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