WHEN DNA TESTING IS NOT THE GOLD STANDARD
By Ben LaGuer
Thanks to advances in CSI techniques, such as DNA testing, hundreds of falsely convicted individuals are again enjoying their freedoms and law enforcement is solving cold cases once deemed unsolvable. But DNA evidence in the court is seldom as seen on TV’s CSI: Miami or Law & Order dramas. Errors are being reported in alarming rates. Prosecutors and defense lawyers are starting to challenge this evidence.
In Oklahoma, a judge sentenced Timothy Durham to 3000 years for raping a young girl based on the certitude of a DNA test. He was set free after a retest. In San Diego, a DNA expert testified that John Kocak’s DNA matched a rape kit sample. It actually matched the victim’s own genotype. In Philadelphia, a reference sample taken from a suspect was mistakenly presented in court as incriminating crime scene evidence. In Michigan, a DNA test taken from a 1969 murder case falsely implicated a suspect who would have been a toddler at the time and even prosecutors admitted the error. In Maryland, Cellmark Diagnostics--the world’s largest DNA lab--fired one of its scientists for falsifying data. In Texas, after Josiah Sutton and Robert Lee Wallace were set free due to errors, 525 DNA cases are still under review. In Washington, the FBI crime lab fired two DNA scientists for errors in 203 cases. In Illinois, 1200 DNA cases will be reanalyzed after the state fired its DNA lab contractor for high rates of errors. In Virginia, 150 DNA cases are under review after a state audit found that a scientist was pressured to falsify a result in Earl Washington’s murder case.
Others stories go beyond the criminal court settings. A DNA paternity test falsely identified a Washington, D.C. hairdresser as the father of a child. The DNA lab admitted its error, but not before the man spent $200,000 in a court battle.
And these may be the easiest, most flagrant, examples of DNA horror stories.
The New York- based Innocence Project has been at the forefront of DNA litigation, forever redefining our ideas of wrongful jury verdicts in the United States. But since the group operates exclusively with DNA evidence to achieve its stated aims, they have no appetite for defending DNA mishap from the evidence collection, handling, packaging or misinterpretation of the genotyping data, etc. They fear that if they start arguing the imperfections of DNA then prosecutors will exploit those same issues to uphold a verdict.
The principals of the Project, Barry Scheck and Peter Neufeld, have obsessively defended the reliability of DNA science in courts despite mounting fraud and human errors being reported in the journals of forensic science. Advocates of DNA such as Scheck and Neufeld have spun complex evidentiary findings down to “exonerated by DNA” or “guilty by DNA” slogans. No lawyer was better at it than their law partner, the late and great attorney Johnnie Cochran, whose defense of O.J. Simpson included that now infamous slogan “If it don’t fit, you must acquit.”
The Project is not altogether an altruistic enterprise. It is also a “client farm” for the wrongful conviction group of the Cochran, Scheck & Neufeld, LLP law firm. Clients, whose wrongful convictions get set aside mostly by the hard work of laws student volunteers, are then recruited as “contingency fee” private clients to the firm. By some accounts, the Project has over 10,000 requests for assistance at any given time. Finding a case of actual innocence is almost like a mining for diamonds; the dirt must be kept rolling down the conveyer belts. As a young case analyst may be limited to what information the inmate himself has been given, decisions often get hastily made not based on full disclosure. Police and prosecutors in this country are notorious for withholding evidence favorable to the criminal defendants.
So not only is there a financial interest in defending the myth of DNA as inviolable but, as Peter Neufeld told the New Yorker, “We’ve never been wrong in any of our exonerations”.
I have a personal interest in tracking these cases because in March 2002, after 12 years of begging prosecutors to permit DNA testing, the sample they provided matched my genotype when tested. I vomited when I heard the result. Until then I was so much a believer that, when I heard the news, for a moment, I even doubted my memory and claim of innocence. For 18 years, I had tirelessly advocated for a new trial and for prosecutors to come clean with their internal files. In 1989, after only 5 years in prison, a newspaper said, “LaGuer is waging not so much a legal appeal as a full fledged media campaign-a campaign shrewdly calculated to put the maximum possible pressure on the judge and on the prosecutor who put him in prison in the first place.” The trial itself had been a mirror of To Kill a Mockingbird wrapped in Twelve Angry Men. A legion of supporters was soon rallying with me for DNA testing. The law firm of then ex-governor Bill Weld, with Weld’s support, spent upwards of $500,000, helping my lawyer fight an obstinate prosecutor.
But there were problems from the outset, when the DA claim the evidence might be “contaminated beyond the point of valid test results” when found at the courthouse with its tamperproof seals peeled off. Crime scene articles that should have been kept separate from underclothes taken by police from my bedroom had been tossed together in a box. One newspaper later observed, “Police and court records show the circuitous route the crime scene evidence took from its collection in 1983 to DNA testing almost 20 years later.”
Today, forensic experts and lawyers are combing the case. In 1983, according to court transcripts, the state police analyst in my case admits testing “two or three cases in order to save time.” A number of experts have found that the DNA test widely assumed to link me to the crime is invalid because the lab mistakenly matched my DNA samples taken from me and my apartment, not the crime scene. over years of legal haggling in court, the samples were intermixed in courthouse storage boxes and samples taken from me were mislabeled as crimescene evidence.
The DNA experts should have considered whether a DNA string about 100 times smaller than a dust particle was proof of my guilt that trumps any other explanation or contamination due to evidence mishandling. (Other crime scene evidence like bloodstains, perspiration from the culprit’s tube sock and fingerprints all points to a third party.) But they never did because instead of retracing the sample through its complex chain of custody papers, my lawyer told the Boston Globe that the test “result doesn’t afford a basis for filing for a new trial” even as the report was being typed.
We found ourselves overwhelmed by the screaming guilty headlines.
While Dr Ed Blake never saw the case file, he was only hired to perform a blind test on the sample, I was aghast when he speculated for a reporter why I might have sought DNA testing. “They can’t bring themselves to admit to their mothers they’re guilty of the crime,” he said. “In this case, his mother was the Boston press. The media created this window of freedom for him.” Blake then adds to his already bizarre speculation that I was “a master manipulator and flimflam artist” possibly in anger that he was still owed thousands of dollars which, as he later told Matt Brunn, a reporter with the Telegram & Gazette, he never expected to collect.
From his New York office, even worse, Barry Scheck told an AP reporter that the DNA result was “disappointing, but no great setback for anybody. But as Blake’s lawyer, a fact not told to the AP reporter, Scheck had no right to present himself as a neutral arbiter. The DNA report was incomplete and riddled with errors. For starters, Dr Blake referred multiple times to a “murder” even though the victim died 15 years later. A DNA analyst working with Dr Blake contaminated two samples of the victim’s DNA by “speaking near or over” them during testing. A request for vital chain of custody papers was still pending in court.
Dr. Ed Blake never understood that prosecutors from Day One had claim this evidence might be “contaminated beyond the point of valid test results.” He blamed me for what my lawyer should have told him.
The idea of laboratory and analytical perfection in DNA testing is a myth. The lawyers who ordered these tests, as well as benefit from them in civil lawsuits, are just as fallible as the lab technicians who performed the testing. In Rhode Island, a judge held Barry Scheck in contempt for filing false papers in Leisa Young – V – City of Providence, et al. In New York, instead of suing city officials for a wrongful conviction, an exonerated Lee Long settled a legal malpractice case against Scheck for 900G when the high-powered law firm bungled his case. Errors, large and small, occur daily in American courts of law.
In a highly controversial case Dr Ed Blake did for the Innocence Project, among Peter Neufeld and Barry Scheck’s first DNA cases, Kerry Kotler was exonerated of a brutal rape after 11 years in prison. Four years later, DNA implicated Kotler in a second rape described in Actual Innocence, a book Neufeld and Scheck co-wrote with New York Times reporter Jim Dwyer, as “so galling, so calculating, that it led people to instantly assume that…his release had been some kind of legal trick or sleight of hand.” (Dr Blake, a named consultant for the book, is never identified as the scientist in Kotler’s case.) But Dr Blake even testified at the second trial that police had framed Kotler. The jury disagreed. In Texas, death row inmate Ricky McGinn became a controversy for then presidential aspirant George W Bush when the media spotlight lit a case of possible wrongful execution. Bush granted lawyers an unprecedented 30 day stay for DNA testing. In that case Dr Blake’s report was used as a basis for executing McGinn despite evidence, cited by Blake, that Texas Rangers had McGinn ejaculated himself for a reference sample---a practice unheard of in all law enforcement. (Dr Blake did not request a court hearing, nor did he preclude contamination as a factor.) In Virginia in 2000, Roger Coleman was a national death row figure who Time Magazine had put on its cover as a possible innocent man about to be wrongfully executed. (Eric S Landers, the director of Broad Institute and finalist to become Harvard University’s next president, had serious questions about Dr. Blake’s laboratory and analytical procedures.) But with Barry Scheck as his lawyer, Dr Blake began to fight Virginia over their request that he return all DNA samples in his lab. Blake says that further tests might exonerate Coleman. (But Coleman was executed in 1991.) Why would Blake be seeking proof, given his history and those around him to spin (Neufeld begged a New Yorker staff writer not to include their roles in the Kotler case in a story,) that his own forensic report in 1991 led to Coleman’s wrongful execution? Perhaps Neufeld got it just about right when he told the New York Times that “DNA is a ‘truth machine’, but the human factor can be a spoiler.”
In January 2006, Virginia Governor Mark Warner, a Democrat who supports the death penalty, finally prevailed on Blake to relent. The evidence would be sent to a lab in Canada so that DNA testing, Warner said, might clear “a more complete picture of guilt or innocence.” Within a week, the sample Blake had provided for retesting matched Roger Coleman. The result was not what Coleman’s advocates had expected. A chain of national newspapers, which had filed court papers in support of retesting, declared Coleman’s plea of actual innocence a hoax. Governor Warner issued a statement reaffirming Coleman’s guilt and his rightful execution.
James C. McClosky, Coleman’s longtime advocate and director of Centurion Ministries, said in a statement, “I now know that Roger’s proclamations of innocence, even as he sat strapped in the electric chair moments before his death, were false.” He added, strangely, “We, who seek truth, must live or die by the sword of DNA”
In an interview with a reporter for Knight Ridder newspapers afterwards, Dr. Ed Blake called the whole retesting effort “a cynical exercise in manipulating a scientific investigation.” He said that while the new round of testing had proven that Coleman had had sex with the victim, his sister-in-law, he saw nothing that proved Coleman a killer. “They could have been having an affair.” Blake adds. “I haven’t heard anyone ask that question and answer it.”
Advocates for Coleman must have been shocked. “Normally DNA samples taken from rape victims come in a swab, but Blake said he was given just the wooden stick from which he scrapped DNA. No one ever explained what happened to the rest of the swab.” While Coleman’s coalmining work clothes were said to have blood splatter, no one ever asked Blake to test that evidence for DNA. Blake requested the blood, along with semen evidence, but, he says, the governor’s office told him those samples had been destroyed. All that remained for the Canadian outfit to retest was that tiny wooden stick Blake had kept frozen in his lab since the early 1990’s.
The struggle to get DNA retesting in the Coleman case made Ed Blake a forensic superstar, with reporters regularly calling for updates and with that publicity a longer roster of clients. With Blake’s high profile fight against Virginia’s officials, the anti-death penalty movement saw Coleman as the best chance to prove a wrongful state execution.
But if Ed Blake only had a tiny wooden stick of dubious origins to begin with, evidence from which no definitive answers would ever come, why did he not admit this up front. Blake had the legal departments of the Boston Globe, Washington Post and half a dozen regional newspapers within a whisper’s reach. If Blake had first conceded that wooden stick would not yield the kind of new evidence expected, then perhaps Coleman’s advocates would have been more circumspect. Dr. Larry Presley, a forensic scientist from the National Medical Services, said, “I’ve had case like that, where the DNA had nothing whatever to do with the homicide.” In one case involving a murdered prostitute, Presley said, “One of her last customers stood accused, though he was later cleared and someone else charged.”
After Warner announced the result, McClosky said: “The truth can be very elusive, and even illusory. Our search for facts can delude us into thinking that what we have found is gold, only to discover that it is in fact fool’s gold. But once the gold of absolute truth is revealed, we must embrace it, and be thankful that we have finally uncovered it.”
Since it was Ed Blake who lead everyone to think they could have gold, one has to wonder whether Blake, rather than Coleman, was then to blame for his grandstanding about DNA truth. It was Blake who, after all, first suggested DNA retesting and benefited the most from that admitted “cynical exercise.”
Today, state legislators are soliciting forensic advice. A prestigious law firm in Boston has a team of lawyers requesting a new trial. The Supreme Judicial Court will soon decide if my right to a fair trial was violated when police and prosecutors withheld vital fingerprints then lied in police reports and trial testimony. We are hoping to match these to three brothers, all sex offenders, who lived in the building but never were investigated by police. DNA analysis is an integral part of criminal justice. But the gold-standard turns out to be as old as any story. In a courtroom, truth can only be measured when police and prosecutors have their thumbs off the scale. When defense lawyers are not afraid to speak truth to power. Truth can be powerful, but sometimes it needs a little defending.
Ben LaGuer is serving a life term at the Souza-Baranowski supermax prison. For more visit BenLaGuer.com.