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.

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.

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?

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:

Under the law, [an arrestee] must wait at least three years from the time of her arrest before seeking to remove her genetic information from the database, a request that either a judge or a prosecutor can veto.

Putting aside the capacity for intrusion into one’s privacy – law enforcement having access to you and your history, your health risk, who you’re related to (and again the issue isn’t that they would, but that they could) – and the racial implications, the possession of such power by the state is repugnant to many of us for the simple reason that it seems to stand at such odds with that basic of principles: the presumption of innocence. If you are to be presumed innocent up until the time of a conviction, then why must the State get to intrude upon your person in such a permanent manner? What is the need to collect your genetic markers, so you may be tagged forever as a potential criminal, when up to that point, you’re guilty of nothing?

Asked by Judge William Fletcher why the state keeps the DNA of people who were not convicted, Powell said those who know their samples are in the database are “less likely to commit future crimes.”

Indeed. Criminals – hard and soft – are kept awake at night by the idea that their DNA might be left behind at the scene, and thus are frightened into living the straight life. It might happen on CSI, but not in real life. In real life, DNA testing takes months due to backlogs; in a lot of cases the DNA isn’t even tested before a case is resolved.

The use of the deterrent argument to justify the preservation of the DNA of innocent people is simply a shield to hide behind. I’m surprised they didn’t tie it in to 9/11 and terrorism somehow. Is it too late to invoke Godwin’s Law? But sadly, these days, anything goes in the name of “safety”.

And it’s quite ironic that the State in this case is all for the preservation of DNA and testing and matching of that DNA to find the suspect that they are otherwise unable to do so, when they routinely stonewall and object to requests to test DNA by convicted inmates seeking to prove their innocence.

Courts have long held that convicted felons have fewer rights than the rest of us, that the fact of conviction necessarily means that they’ve given up some rights. The right to privacy and the right not to be suspected for the rest of their lives are two of them. So it’s easier to justify the taking of the DNA of a felon: once a criminal, always a criminal, so let’s keep tabs on him.

Taking the DNA of people merely arrested seems to extend that terrible generalization to all who are unlucky enough to be arrested, thus furthering the presumption of guilt.

In the end, the equation always seems to include two mutually exclusive concepts: more freedom or more safety?

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

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.

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:

In 2002, Elkins’ niece recanted her testimony about Elkins being the perpetrator. That same year, Elkins made a request for DNA testing, which was denied on the grounds that the results would not prove Elkins’ innocence.

Despite this ruling, Elkins managed to provide his own funding for Y-STR testing on evidence from the crime. Y-STR is a relatively new form of testing that isolates certain characteristics of the male chromosome suitable for comparison. In 2004, Elkins’ lawyers at the Ohio Innocence Project cooperated with the prosecutor’s office to send evidence to Orchid Cellmark, a nationally recognized forensic lab.

The results of this testing excluded Elkins as the possible perpetrator of the rape and murder. A male profile was found on male skin cells from both the grandmother’s vaginal swab and the young girl’s underwear. Elkins moved for a new trial. On July 14, 2005 the court denied Elkins’ motion.

The State, meanwhile, was not convinced. They claimed that because the DNA was from skin cells, it wasn’t conclusive that Elkins was excluded as the real perpetrator. Eventually, after some considerable risk to his own life in prison, Elkins and his wife were able to get the DNA of the man they believed committed the crime. But even that wasn’t enough for prosecutors. They wanted more.

Just today, the Hartford Courant has a front page story about two men, similarly claiming innocence:

The DNA found on the electrical cord used to bind the hands of a shop owner slain 15 years ago doesn’t belong to either of the two men convicted of killing him.

Fingerprints found on the door handle of the store’s safe are not theirs, and the state’s main witness now admits in a taped interview that she lied when she testified at their trial.

But Ronald Taylor and George Gould are still sitting in a Connecticut prison — serving 80 years for the July 4 murder of Eugenio Vega DeLeon in 1993.

The similarities between Taylor and Gould’s case and Elkin’s case are eerie: In both, there is a recanting eyewitness. In both, there are alibis. In both, there is a wife convinced of innocence fighting to prove it. In both, there is DNA evidence that excludes the defendants and for now, in the former, the prosecutors have refused to test the DNA of the man the defense believes is responsible. Finally, like in Elkins, the prosecutor in New Haven isn’t convinced:

“Having reviewed the file presented by Gerry O’Donnell, it wasn’t like in the Roman case, where there was clear-cut evidence,” Dearington said. “In this case it’s not clear that the inappropriate person or persons were convicted.”

Dearington said that although O’Donnell’s report raised questions about the original case, he wasn’t about to order the release of two convicted murderers based mostly on “pure conjecture and speculation.”

The prosecutor is more willing to leave it to a court to decide, with a hearing on the petition for The Great Writ scheduled for June. Will the similarities between Elkins’ case and Taylor and Gould’s case continue? It remains to be seen.

All of this makes one wonder: why are prosecutors so fiercely protective of their wins? Certainly, there is much to be said about the finality of convictions (and indeed courts around the country have written enough about it to replenish the rainforests) and the need for closure, but none of these cases present ordinary circumstances.

Both prosecutors, in Elkins and Taylor and Gould have shown or are showing caution in proceeding. The prosecutor in Elkins took a long time convincing herself that Elkins was indeed innocent – seeking voluminous DNA testing, and she took an even longer time to charge the man who actually commited the crime. The prosecutor in Taylor and Gould is taking the ultimate cautious approach: a hands off one. Leave it to the judge and let him take the rap.

If only they’d been this cautious or skeptical of evidence the first time around. Which brings me to my last story, via David Tarrell. Prosecutors in Omaha have announced that they will no longer be accepting plea bargains from adult defendants. In any case. At all. [In other news, Omaha's criminal justice system shot itself in the head.]

It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn’t think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.

“This prevents overcharging,” Ritnour said. “You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We’re going to see what we should charge people with and stick with it.”

I, for one, am not buying it. This will be a short-lived experiment, during which a whole bunch of defendants will get screwed. This stance places a lot of faith in prosecutors’ ability to see their case for what it is and not for what it might be. It also raises some questions: what charges is he talking about? I don’t know how it works in NE, but here, the charges can be changed at any time via a substitute information. So if the cops charge Assault 1st at the arrest and the prosecutor, either at arraignment or at some point further down the line, say after an extensive defense investigation, is of the opinion that Assault 1st is no longer viable or is risky, will offer a plea to Assault 3rd. That doesn’t mean that the prosecutor thinks it’s unprovable, just that it’s unlikely. Is that what Ritnour is saying? Because if it is, then I don’t know the difference between what he’s saying and plea bargaining. Or is he saying that they won’t file charges until they’re absolutely sure of what they can prove, regardless of what any further investigation turns up? Because that’s a hollow policy.

He’s also implying that there will be no guilty pleas whatsoever. That’s a ridiculous assertion, even if there is no right to plead guilty. The volume would be crushing. What of the defendant, who agrees that he commited Assault in the Third Degree and the prosecutor is of the same mind. Why waste everyone’s time and money and go to trial? Would a plea not suffice in that situation?

Anyway, let us assume that he means he won’t charge someone with crimes he doesn’t think he can prove. How sure does he have to be? The two innocence stories above are examples of shoddy investigation. I’m sure prosecutors in both cases thought (and still think) that they could prove their cases. It raises an interesting question: do the two innocence cases serve to bolster Ritnour’s new policy or do they inform us that no matter what, defending a win seems to be of prime importance.

See more from the Viscount of the blawgosphere.

As always on this blog, there are no answers. Only (stupid) questions.

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. I wonder what sort of compensation he’ll get, given that CT failed to pass an exoneree compensation bill after Tillman’s exoneration.By my updated count, this would be the 5th DNA exoneration in CT and 13th exoneration overall.

Anyway, some good news on a crappy day. Innocence Project FTW!

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.

A few days ago, armed with new DNA evidence, police arrested Miranda for the three killings.

State investigators reopened the Lopez case at the request of the Connecticut Innocence Project, which wanted to retest DNA samples found on Lopez’s body and at the crime scene. Roman was convicted even though an FBI analyst testified at his trial that the DNA was not his.

In the months since Miranda’s DNA was tied to the crime, the CT Innocence Project (which, you will remember, was instrumental in securing the release of James Tillman) has been working on Roman’s case. To coincide with Miranda’s arrest, they filed a petition for new trial in Hartford Superior Court.

So how was Roman convicted? The usual: jailhouse snitch testimony and a wily argument from the prosecutor:

Police eventually charged Roman with murder in Lopez’s death. During his trial, however, an FBI analyst testified that DNA taken from Lopez’s body did not match Roman’s. Prosecutor John Massameno argued to the jury that the DNA could have been left by another person who had no connection to the killing.

Massameno presented evidence from a jailhouse snitch that Roman had confessed to killing Lopez after he encountered another man leaving her apartment.

Massameno is currently defending the State in the “racial and geographical disparity in the death penalty” litigation.

Jailhouse snitch testimony really is not very credible and this is a prime example of why not. Snitches in jail (as opposed to regular snitches) have a great incentive to lie and to make up stories, thereby providing police with that “confession”. People should know this. The police should know this. After years and years of discredited jailhouse snitch testimony, you’d think they’d have learned to shy away from it. The only way jailhouse snitch testimony should be believed is if there is corroborating evidence.

Miranda’s DNA, apparently, cannot be excluded from any of the physical evidence at the crime scene, while Roman’s can be:

DNA results also show that Miranda cannot be eliminated as the source of the DNA found in Lopez’s body, on cloth strips and an extension cord used to choke her, and on several cigarette butts left in an ashtray near Lopez’s body.

Investigators also retested Roman’s DNA and it does not match any of the samples found at the Lopez crime scene, a key part of his new claim to be released from prison.

[Sidetrack: A petition for new trial is generally barred after 3 years, except, due to a 2000 amendment, in cases involving DNA.]

Now, as some suggest, it is curious that Roman is still sitting in jail, despite the arrest of Miranda. Nothing in the arrest warrant suggests that Roman was an accomplice of Miranda in this killing or that he was in any any way involved. Naturally, both men cannot be in prison for independently and separately committing the same crime. However, I’m more willing to wait until Monday, when Miranda is arraigned, before raising a stink. Sure, he has to spend an extra weekend in jail, but the criminal justice system isn’t perfect. If the State doesn’t agree to release Roman on bail on Monday, pending the resolution of his petition for new trial, you know how I’ll get.

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