Convicted by Juries, Exonerated by Science

by DOJ

Case Studies in the Use of DNA Evidence to Establish Innocence After Trial

NIJ Research Report
June 1996
118 pages

by

Edward Connors
Thomas Lundregan
Neal Miller
Tom McEwen

June 1996

U.S. Department of Justice
Office of Justice Programs

National Institute of Justice
Jeremy Travis, J.D.
Director

Richard Rau, Ph.D.
Project Monitor

The authors of this report are staff members of the Institute for Law and Justice, Alexandria, Virginia. This project was supported under award number OJP-95-215 by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice.

Opinions or points of view expressed in this document are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice.

NCJ 161258

Message from the Attorney General

Our system of criminal justice is best described as a search for the truth. Increasingly, the forensic use of DNA technology is an important ally in that search.

The development of DNA technology furthers the search for truth by helping police and prosecutors in the fight against violent crime. Through the use of DNA evidence, prosecutors are often able to conclusively establish the guilt of a defendant. Moreover, as some of the commentaries suggest, DNA evidence -- like fingerprint evidence -- offers prosecutors important new tools for the identification and apprehension of some of the most violent perpetrators, particularly in cases of sexual assault.

At the same time, DNA aids the search for truth by exonerating the innocent. The criminal justice system is not infallible, and this report documents cases in which the search for truth took a tortuous path. With the exception of one young man of limited mental capacity, who pleaded guilty, the individuals whose stories are told in the report were convicted after jury trials and were sentenced to long prison terms. They successfully challenged their convictions, using DNA tests on existing evidence. They had served, on average, 7 years in prison.

By highlighting the importance and utility of DNA evidence, this report presents challenges to the scientific and justice communities. Among the tasks ahead are the following: maintaining the highest standards for the collection and preservation of DNA evidence; ensuring that the DNA testing methodology meets rigorous scientific criteria for reliability and accuracy; and ensuring proficiency and credibility of forensic scientists so that their results and testimony are of the highest caliber and are capable of withstanding exacting scrutiny.

Meeting these scientific challenges requires continued support for research that contributes to the advancement of the forensic sciences. The research agenda must also enable criminal justice practitioners to understand and to make appropriate use of the rapidly advancing and increasingly available technology.

The National Institute of Justice (NIJ) commissioned this study to encourage discussion of the challenges to the scientific and justice communities presented by DNA evidence. The commentaries presented here -- authored by prominent experts from a variety of disciplines -- and the cases documented in the pages that follow, are testimony to the power and potential of DNA evidence. We hope that these commentaries and the NIJ report spur a broader debate about the value of DNA technology and the role of science in the criminal justice system's search for truth.

Janet Reno

Acknowledgments

The authors wish to acknowledge the assistance of Carla Noziglia, director, Tulsa, Oklahoma, Forensic Crime Laboratory, for help in the laboratory survey; Joan Peterschimdt, Institute for Law and Justice staff, for excellent administrative support; Dr. Richard Rau, National Institute of Justice, Office of Science and Technology, for directing the study effort; and the many attorneys, forensic laboratory staff, and others who gave freely of their time and effort to provide information for this study.

FOREWORD

Commentaries on DNA Testing

Commentary by Edward J. Imwinkelried
Professor of Law
University of California at Davis

The outcomes in the 28 cases documented in this report dramatize the real nature of the question of standards for determining the admissibility of scientific evidence in the United States.

Until recently, the Frye standard governed that question in most jurisdictions. In Frye v. United States,1 the court announced that to be admissible, scientific testimony must be based on a technique that has "gained general acceptance in the particular field in which it belongs."2 The court singled out novel scientific evidence and prescribed a special test for the introduction of such testimony. At one point, that test was the controlling law in both the Federal courts and 45 States.3 It is true that in 1993 the United States Supreme Court abandoned Frye and adopted a more flexible validation standard in Daubert v. Merrell Dow Pharmaceuticals, Inc.4 However, the Court decided Daubert on statutory rather than constitutional grounds, and, consequently, each State remains free to fashion its own standard for admitting scientific evidence. As of 1995, 22 States apparently remained committed to Frye.5 In short, the conservative general acceptance test is still in place in almost half the States.

Moreover, even in his lead opinion in Daubert, Mr. Justice Blackmun indicated that, at least in some respects, trial judges may continue to admit scientific evidence more cautiously and restrictively. The Justice initially pointed to Federal Rule of Evidence 403, authorizing trial judges to exclude logically relevant evidence when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." The Justice then quoted Judge Weinstein, a distinguished jurist and scholar, as declaring: "[E]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 exercises more control over experts than over lay witnesses."6

Two points must be made. First, Justice Blackmun and Judge Weinstein are voicing conventional wisdom in suggesting that lay jurors attach greater weight to scientific evidence. The California Supreme Court has asserted that a "misleading aura of certainty...often envelops a new scientific process."7 In a similar vein, the Court of Appeals for the District of Columbia, birthplace of the Frye rule, has written that jurors frequently attribute a "mystic infallibility" to scientific testimony.8

There have been empirical investigations into the impact that scientific evidence has on lay jurors. Although those studies are far from conclusive, they largely contradict the assertion that scientific evidence overwhelms lay jurors.9 After surveying the literature, two respected commentators concluded that "the image of a spellbound jury mesmerized by...a forensic expert is more likely to reflect...fantasies than the...realities of courtroom testimony."10

Second, and more importantly, the advocates of special restrictions on the admissibility of scientific testimony misunderstand the fundamental nature of the question:

It is misleading to focus solely on the strengths and weaknesses of scientific evidence. In principle, the judgment must be comparative. To the extent that we discriminate against scientific evidence, subjecting it to uniquely discriminatory, restrictive rules such as Frye, we encourage the courts to rely on other types of evidence. Thus, our task is not to make an absolute judgment about the merits of scientific evidence. Rather, our task is to compare it with other types of evidence to decide whether the differential treatment of scientific evidence is justifiable.11

As the 28 cases collected in this report demonstrate, when we subject new scientific techniques such as DNA typing to special admissibility rules, we force the courts to rely on inferior types of evidence, such as eyewitness testimony. In all 28 cases, without the benefit of DNA evidence, the triers of fact had to rely on eyewitness testimony, which turned out to be inaccurate. In United States v. Wade,12 Mr. Justice Brennan noted: "The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification." Those annals must now be lengthened to include the 28 wrongful convictions discussed in this report. In roughly two-thirds of the cases, the triers heard testimony based on traditional forms of expertise, such as hair analysis -- testimony that passes muster under the Frye standard but that, again, turned out to be erroneous. There are numerous proficiency studies establishing that there is a significant margin of error in such traditional forensic techniques.13 The sobering fact is that in all 28 cases, the error was unmasked -- and justice finally served -- only because of the novel scientific technique of DNA typing.

The "junk science" controversy has made it tempting to propose special restrictions for scientific evidence, especially testimony resting on relatively new scientific techniques. One lesson to be learned from this report, however, is that before succumbing to that temptation, we should pause to pose two questions. First, have the critics of scientific evidence proven that the type of testimony in question presents a unique probative danger -- or have they merely made that assertion? Further, if we impose a unique restriction on scientific testimony, on balance are the courts more likely to reach just results -- or are we condemning the courts to reliance on suspect types of testimony that call into question the caliber of justice dispensed in our courts? This report should be read with those two questions foremost in mind.

Footnotes Commentary by Edward J. Imwinkelried

1. 293 F.1013 (D.C. Cir. 1923).

2. Id. at 1014.

3. Note, 40 OHIO ST.L.J. 757, 769 (1979).

4. 113 S.Ct. 2786 (1993).

5. Meaney, Joseph R., "From Frye to Daubert: Is a Pattern Unfolding?" 35 JURIMETRICS 191, 193 (1994).

6. 138 F.R.D. at 632.

7. People v. Kelly. 17 Cal. 3d 24, 32, 549 P.2d 1240, 1245, 130 Cal. Rptr. 144, 149 (1976).

8. United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974).

9. "Standard for Admitting Scientific Evidence: A Critique from the Perspective of Juror Psychology," 28 VILL.L.REV. 554 (1983) 566-70.

10. Rogers, Richard, and Charles Patrick Ewing, "Ultimate Opinion Prescriptions: A Cosmetic Fix and a Plea for Empiricism," 13 LAW 7 HUM.BEHAV. 357, 363 (1989).

11. 28 VILL.L.REV. at 564.

12. 388 U.S. 218 (1967).

13. Giannelli, Paul C., "The Admissibility of Laboratory Reports: The Reliability of Scientific Proof," 49 OHIO ST.L.J. 671 (1988).

Commentary by Walter F. Rowe
Professor, Department of Forensic Sciences
The George Washington University

The introduction of DNA profiling has revolutionized forensic science and the criminal justice system. DNA technology has given police and the courts a means of identifying the perpetrators of rapes and murders with a very high degree of confidence.

As recently as the late 1960s, the only methods available for genetic marker analysis of blood and other body fluids were the Lattes test, the absorption-elution test, and the absorption-inhibition test. Only ABO blood group substances and ABO isoantibodies could be detected in biological stain evidence. Over the intervening years, electrophoretic methods for typing polymorphic proteins -- such as phosphoglucomutase, esterase D, glyoxalase, hemoglobin, and haptoglobin -- became available.

While these methods are in theory capable of greatly narrowing down the possible sources of biological stain evidence, they often fail to yield a result because of deterioration of the genetic marker. They even can yield completely erroneous results.

For a variety of reasons, DNA profiling has significantly advanced the analysis of biological stain evidence. First, these methods are intrinsically more discriminating than the methods of genetic marker analysis heretofore used. DNA profiling is more likely to exonerate a wrongly accused suspect. Second, the DNA molecule is more stable than polymorphic proteins. Third, microbial degradation does not lead to erroneous typing results.

An unforeseen consequence of the introduction of DNA profiling has been the reopening of old cases. Persons convicted of murder and rape before DNA profiling became available have sought to have the evidence in their cases reevaluated using this new technology. In some cases, DNA test results have exonerated those convicted of the offenses and resulted in their release from prison.

The National Institute of Justice commissioned a research study of such DNA exculpatory cases. Conducted by the Institute for Law and Justice and described in this report, the study has identified 28 cases in which DNA testing led to the exoneration of persons previously convicted of murder or rape.

Most forensic scientists involved in DNA analysis have been aware that in some cases, DNA profiling has been instrumental in correcting injustices. Previously, however, almost all the information had been anecdotal. This report assembles a wealth of information on such cases, and the accounts of exculpatory DNA cases it presents will go a long way toward countering uninformed attacks on forensic DNA testing. Study results also should provide strong arguments for law enforcement officials who seek funding from State legislatures to establish forensic DNA laboratories. Furthermore, the study should completely dispel any lingering public perception of forensic DNA testing as a threat to civil liberties.

At the same time, the study also raises several important issues that need to be confronted by the legal community, law enforcement agencies, and the forensic science profession. The careful reader of this report will note the number of cases in which law enforcement agencies and prosecutors went forward with criminal prosecutions when only minimal genetic marker data were available. Critics of DNA typing who have opposed the admission of any DNA evidence should ponder the likely consequences of such an absolute prohibition: Law enforcement agencies and forensic science laboratories would be compelled to revert to the older and less discriminating serological methods (such as ABO blood typing and polymorphic protein typing). Many innocent defendants who would be exonerated by DNA typing would instead be prosecuted because the less powerful techniques failed to exclude them.

A second important issue is the number of cases in which there was misconduct on the part of the prosecution's scientific experts. For example, the forensic serologist who testified against Gary Dotson failed to disclose that, because the alleged victim was also a type B secretor, the fraction of the male population that could have contributed the semen found on the vaginal swabs exceeded 60 percent, making the serological evidence in the case probative of very little.1 In this instance, the prosecution's expert witness failed to volunteer potentially exculpatory information but did not actually lie under oath.

Three cases discussed in this report involved expert scientific testimony by Fred Zain. Mr. Zain was a forensic serologist in the West Virginia State Police Crime Laboratory for a number of years; he then worked briefly as a forensic serologist for the Bexar County (Texas) Medical Examiner's Office. Mr. Zain's conduct as a forensic serologist was called into question when the results of a DNA test freed Glen Woodall. At Mr. Woodall's original trial, Zain testified that Woodall's ABO, phosphoglucomutase (PGM), glyoxalase (GLO), and secretor types matched those found in the semen sample. Such an event is possible but highly unlikely given that Woodall was unambiguously excluded by subsequent DNA tests. A special commission convened by order of the West Virginia Supreme Court of Appeals investigated Zain and the West Virginia State Police Crime Laboratory. As a result of this investigation, the State Supreme Court ruled that none of the testimony given by Zain in more than 130 cases was credible.2 The court further ordered that Zain be indicted for perjury.3 It is sobering to reflect that but for the adventitious appearance of DNA typing, Glen Woodall would still be languishing in prison and Fred Zain might still be sending innocent persons to prison.

The advent of DNA typing will go a long way toward preventing miscarriages of justice, like the Dotson and Woodall cases, in the future. Most wrongly accused suspects will be exonerated during the initial testing of physical evidence, long before prosecution would even be considered. The quantity and quality of documentation required by laboratory quality assurance/quality control protocols preclude the wholesale falsification of test results. The minuscule quantities of DNA required for PCR-based typing procedures also allow the preservation of sufficient DNA for independent laboratory testing.

One problem that DNA testing will not remedy is inadequate legal counsel. In case after case reported here, defense counsel failed to consult competent scientific experts. Even a neophyte forensic serologist would have detected the problems with the prosecution's serological evidence in the Dotson case. It is also clear that in case after case, defense counsel failed to review the case notes of the prosecution's forensic serologists. Even a layperson would have seen that Fred Zain's written reports and sworn testimony were contradicted by his case notes. Again, one has to reflect on the likelihood that numerous innocent persons are presently incarcerated because of the inadequacy of their attorneys.

This National Institute of Justice report on DNA exculpatory cases is a unique contribution to the growing literature on forensic DNA profiling. It should be read and pondered by anyone having an interest in this burgeoning field of forensic science.

Footnotes, Commentary by Walter F. Rowe

1. Webb, Cathleen Crowell, and Marie Chapian, Forgive Me, New York: Berkeley Books, 1986.

2. "Court Invalidates a Decade of Blood Test Results in Criminal Cases," New York Times (November 12, 1993):A20.

3. Harper, Jane, "West Virginia Court Wants Forensics Expert Prosecuted," Houston Post (July 17, 1994):A22.

Commentary by Rockne Harmon
Senior Deputy District Attorney
Alameda County, California

The introduction of forensic DNA typing into the legal system was heralded as the most significant event in criminalistics since dermal fingerprint identification. Few developments ever live up to their advance billing -- but DNA has!

Cases are now being prosecuted that never would have been possible before the advent of DNA typing. Many States have created DNA data bases on known offenders that they compare against unsolved crimes. Several States have produced matches from their data base searches, and a handful of these cases already have been successfully prosecuted.

About 9 years after its introduction, forensic DNA typing is still used only selectively. This is due, in part, to several factors: the unavailability of forensic typing to local prosecutors, the time required to perform the typing, and the costs of the tests if private laboratories are utilized.

When forensic DNA typing is performed in cases under investigation or still pending in court, the results occasionally exonerate a suspect or suspects. Such cases rarely are front-page news because the tests have served their purpose. Investigators can redirect their efforts to alternative suspects. Prosecutors can dismiss charges filed against innocent suspects.

This report reviews more than two dozen cases in which forensic DNA typing ultimately exonerated suspects or defendants. Most were prosecuted at a time when forensic DNA typing was not available to police or prosecutors. Each case has a slightly different sequence and series of events. Because of these differences, each case provides additional insight into how the legal system might avoid the pitfalls of the past, whether or not the testing is performed in pending or postconviction cases.

Some already have used the cases discussed in this report to argue that hundreds more innocent defendants are in prison. They contend that the current "exclusion" rate for forensic DNA labs -- close to 25 percent -- suggests that a similar percentage of innocent defendants were wrongly convicted before the availability of forensic DNA typing. Unfortunately, too many variables are contained in the "exclusion" rate to draw any meaningful conclusions from it. Furthermore, nothing about the cases reviewed here necessarily supports such a conclusion.

The only clear conclusion that can be drawn is that this new technology can be used within the existing legal framework to undo past injustices. In other words, both the science and the legal system worked in these cases! This report provides additional insights into how such cases can be identified in the future.

Commentary by Ronald S. Reinstein
Presiding Judge, Criminal Department
Superior Court of Arizona
Maricopa County

This report is an excellent example of the marriage between science and law and of the invaluable resource that DNA evidence has become in the forensic field. When justice can be served in such dramatic fashion by the exoneration of previously adjudged guilty individuals, science demonstrates its practical effect.

Yet the 28 cases cited in the report relate only to individuals released from prison because of DNA testing. Vastly more far-reaching in the long run is the use of DNA typing both to exclude some suspects who otherwise might be charged and to identify many other suspects who might not have been charged but for the DNA typing.

What is frustrating to many who are excited about the possibilities of the use of DNA in the forensics area is the slow pace it is traveling on the road to admissibility. Many jurisdictions do not have sufficient funds to establish their own laboratories or to send to private laboratories items of evidence for typing. Laboratories that perform testing often have backlogs measured in months. Courts, prosecutors, and defense counsel impose a great burden on laboratories' time in the usual discovery battles that occur whenever a new technique arrives on the forensic scene.

It is interesting to observe how quickly some DNA-evidence opponents embrace the science when it benefits certain defendants' interests but how defensive they become when the evidence points toward other defendants. But this is not unique to DNA evidence.

It is the responsibility of the court to promote the search for truth. If that search can be assisted by science that can give reliable results, the whole system as well as society benefits. It is also the responsibility of the court to try to prevent juror confusion caused by lawyers and experts who sometimes seem unable to explain scientific evidence in language the jury understands.

The future should be brighter as the technology improves so that the process of DNA typing will likely become much quicker, less complex, and less expensive. The battle of the experts, it is hoped, will also subside eventually, especially in the confusing area of the statistical meaning of a match.

The conflict between various forensic experts, population geneticists, and statisticians on "the meaning of a match" is a prime example of how science and the law sometimes do not mesh, especially in jurisdictions that follow the Frye test of general acceptance in the scientific community. The numbers being bandied about by various experts are almost beyond comprehension for trial jurors.

It seems logical to allow relevant, reliable, qualitative expert opinion -- for example, that the probability of a random match in DNA testing is extremely remote given a reliable multilocus match. Likewise, experts should be able to testify from their experience about whether they are aware of random matches at four or five loci of unrelated individuals, and whether one evidence sample matches another to a reasonable degree of scientific certainty. There is a serious question about whether DNA-match testimony should be treated any differently from that of fingerprints, bite marks, hair and fiber samples, ballistics, shoe prints, and the like.

Restrictions currently imposed in some jurisdictions on the use of DNA evidence unreasonably divest such evidence of its compelling nature. If our justice system's goal is the continuing search for truth, as evidenced by the results of the study described in this report, then a similar argument can be made for the admissibility of relevant and reliable DNA-match testimony in our courts.

Commentary by George W. Clarke and Catherine Stephenson
Deputy District Attorneys
San Diego County, California

The study described in this report highlights significant aspects of the use of DNA evidence in the investigation and prosecution of criminal cases. While DNA typing is employed in various types of criminal cases (e.g., murder, robbery, kidnaping), the majority of DNA investigations entail sexual assault offenses. Indeed, in all of the cases reported in this study, sexual assault was alleged alone or in tandem with other crimes.

That the majority of DNA profiling cases concern sexual assault -- usually rape -- is not surprising. In few other criminal endeavors is the perpetrator as likely to deposit significant physical evidence. Occasionally, that evidence is hair, blood, or saliva; more often it is semen. Of the 28 cases reported in this study, all but two appear to have involved the analysis of the sperm component of the semen. Sexual assault cases by their very nature normally include evidence rich in DNA profile evidence.

Our enthusiasm for the use and interpretation of DNA typing, however, should be tempered inasmuch as the vast majority of sexual assault cases involving both child and adult victims do not require resolution of identity. The majority of child and adult sexual assault cases presented to us for determinations of whether to file criminal charges involve a perpetrator known to the victim. The defense normally presented is consent. In other cases, there is a denial that any sexual act occurred at all. These cases frequently do not involve physical evidence of sexual assault (injury, semen, saliva). This absence of physical evidence can be due to delay on the part of the victim in making a report to the police or to the very nature of the act, such as fondling, which is unlikely to result in the deposit or recovery of trace evidence. In such cases, the prosecutor first must resolve whether an assault even took place.

This report emphasizes that in those cases where identity is an issue, law enforcement officers must be diligent in the search for DNA evidence both at the scene and in or on the victim. Careful and timely collection and preservation of evidentiary material is critical. Collecting the bed sheets before they are washed and recovering evidence from the victim before the victim showers are important components of effective investigation. Thorough, well-documented, and honestly disseminated interviews of the victim are equally critical.

Forensic DNA typing laboratories -- as numerous commentators have noted -- encounter rates of exclusion of suspected attackers in close to 25 percent of cases. Careful examination of such results is commonly required whether in the pre- or postconviction setting. Typing results that exclude a suspected assailant may not demonstrate innocence. Not uncommonly, evidence collected and subjected to DNA profiling may reveal results from biological material left by other consensual sexual partners unrelated to the offense investigated or from other individuals having contact with the victim. Consideration of those results in the context of all other evidence in a specific case is essential to the determination of what took place. Law enforcement officers, prosecutors, and judges must conscientiously undertake such examinations in order to fulfill the factfinding functions with which they are entrusted.

As this report notes, judges and juries may soon routinely expect DNA typing evidence in sexual assault cases as the use of DNA technology becomes more widely known. DNA profiling evidence can speak, but not with the passion of a victim's voice. DNA typing results can shed light on "who"; it cannot explain precisely when, or how, or even why. The victim who survives the sexual assault must always be the primary and most important source of information.

Commentary by Matt L. Rodriguez
Superintendent of Police
Chicago Police Department

Criminal justice in the United States is a system founded on skepticism. "Innocent until proven guilty" and "beyond reasonable doubt" reflect more than the systematic doubt and deferred judgment that are afforded individuals accused of crime in our society. These maxims help define the incredibly high standards that the system's practitioners must meet before someone can be judged guilty.

In recent years police and prosecutors have increasingly turned to technology as a way to achieve these standards of proof with greater efficiency and effectiveness. Throughout the Nation, law enforcement agencies have entered an era in which high technology is not only desirable but also necessary to combat crime and ensure justice. Recent advances in forensic and biometric technologies, in particular, have created enormous opportunities for law enforcement to identify offenders with greater speed and certainty.

But while new technology presents opportunities, it is not without its challenges. The rate of change in technology, already fast-paced, is accelerating rapidly. And the demands on law enforcement are increasing dramatically in terms of both case volume and complexity. This environment of change exerts tremendous pressure on today's law enforcement administrators. Not only must we figure out what new technology to acquire and when to acquire it, but, just as importantly, we must ensure that our internal policies and operational procedures are keeping pace with advances in technology.

This study of DNA analysis in exculpatory cases highlights -- in a very "real world" manner -- both the opportunities and the challenges that this particular technology poses for law enforcement.

As a forensic science tool for criminal justice, DNA analysis has a relatively short history, dating back to groundbreaking cases in the late 1980s. What is significant about this "start date," from a law enforcement perspective, is that it stands in stark contrast to the age and experience levels of many of our police officers, especially those in larger cities. With an average age oftentimes of 40 or more, and with many police officers having 15, 20, or more years of experience, police departments today are populated with officers who did not grow up with DNA analysis and similar technologies. The result is that many agencies are still playing "catch up" when it comes to operating in today's high-technology world.

At the same time, the O.J. Simpson case and other recent sensational trials have put law enforcement under an intensely powerful microscope, examining our most basic procedures for collecting, processing, and caring for evidence. Although such scrutiny is never comfortable, it is appropriate and welcome, for the ultimate test of what we do in policing is in the courtroom. Increased scrutiny has challenged police departments to become more knowledgeable about DNA technology and more professional in evidence collection and processing. How we respond to this challenge will be crucial to our success and to the cause of justice in an even higher tech future.

Typically, when faced with challenges of this magnitude, law enforcement's first reaction is to concentrate on the specialists within our profession -- in this case, the evidence technicians and crime laboratory analysts. These people are certainly critical to the effective processing of evidence, especially in the current environment of scrutiny and technological sophistication. But it is a mistake for law enforcement to focus solely on these specialists. Extensive and up-to-date training and procedures need to be provided to all of our police officers.

As the first responders to most crime scenes, patrol officers in particular must be aware of the potential opportunities and pitfalls posed by DNA technology, just as they must be extremely sensitive to the full range of evidentiary matters involved in protecting and processing crime scenes. Up and down the chain of command as well, police personnel must become more knowledgeable about DNA technology and more aware of, and responsive to, its implications for crime-scene and evidence processing. In the post-O.J. Simpson era, the handling of evidence until it reaches the crime laboratory will be as important as the laboratory technology, conditions, or procedures themselves.

Although the challenges posed by DNA analysis are many, they are outweighed by the enormous possibilities the technology presents. DNA analysis is a powerful and often necessary tool for establishing the presence or absence of someone at a crime scene. Readers of this study must remember that this issue cuts both ways.

In the future we must reduce the likelihood of innocent persons being wrongly convicted, just as we must increase the chances of guilty parties being identified and held responsible for the crimes they commit. This can be achieved through continued refinement of DNA technology, coupled with better training and procedures to ensure that evidence is skillfully gathered, stored, and submitted for analysis. When used properly and appropriately, DNA analysis can permit us to address the skepticism and doubt that are intrinsic to our system of justice.

Commentary by Peter Neufeld, Esq.
and Barry C. Scheck

Mr. Scheck Is Professor of Law and Director of Clinical Education
Benjamin N. Cardozo School of Law
New York, New York

Postconviction DNA exonerations provide a remarkable opportunity to reexamine, with greater insight than ever before, the strengths and weaknesses of our criminal justice system and how they bear on the all-important question of factual innocence. The dimensions of the factual innocence problem exceed the impressive number of postconviction DNA exonerations listed in this report. Indeed, there is a strong scientific basis for believing these matters represent just the tip of a very deep and disturbing iceberg of cases. Powerful proof for this proposition lies with an extraordinary set of data collected by the Federal Bureau of Investigation (FBI) since it began forensic DNA testing in 1989.

Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by State and local law enforcement), the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive (usually insufficient high molecular weight DNA to do testing), about 2,000 tests have excluded the primary suspect, and about 6,000 have "matched" or included the primary suspect.1 The fact that these percentages have remained constant for 7 years, and that the National Institute of Justice's informal survey of private laboratories reveals a strikingly similar 26-percent exclusion rate, strongly suggests that postarrest and postconviction DNA exonerations are tied to some strong, underlying systemic problems that generate erroneous accusations and convictions.

It must be stressed that the sexual assault referrals made to the FBI ordinarily involve cases where (1) identity is at issue (there is no consent defense), (2) the non-DNA evidence linking the suspect to the crime is eyewitness identification, (3) the suspects have been arrested or indicted based on non-DNA evidence, and (4) the biological evidence (sperm) has been recovered from a place (vaginal/rectal/oral swabs or underwear) that makes DNA results on the issue of identity virtually dispositive.

It is, of course, possible that some of the FBI's sexual assault exclusions have included false negatives. False negatives could occur, for example, because of (1) laboratory error; (2) situations where the victim of the assault conceals the existence of a consensual sexual partner within 48 hours of the incident and the accused suspect did not ejaculate (if the suspect ejaculated, the DNA should be identified along with the undisclosed sexual partner); or (3) multiple assailant sexual assault cases where none of the apprehended suspects ejaculated (the FBI counts the exclusion of all multiple suspects in a case as just one exclusion). Nonetheless, even with these caveats, it is still plain that forensic DNA testing is prospectively exonerating a substantial number of innocent individuals who would have otherwise stood trial, frequently facing the difficult task of refuting mistaken eyewitness identification by a truthful crime victim who would rightly deserve juror sympathy.

Without DNA testing, the prospects of wrongful convictions in these exclusion cases are evident. Even if one assumes half the normal conviction rate (State conviction rates for felony sexual assaults average about 62 percent), one would expect that hundreds of people who have been exonerated by FBI DNA testing in sexual assault cases over the last 7 years would have otherwise been convicted.

The Institute for Law and Justice report does not purport to be more than a quick survey, based primarily on press clippings and summary interviews, of postconviction DNA exoneration cases, and it does not undertake any systematic analysis of them. Since we have been, through the Innocence Project at Cardozo Law School, either attorneys of record or assisting counsel in the vast majority of these cases, we have attempted to investigate, with care and in detail, some of the factors that have led to the conviction of the innocent.2

Interestingly, in many respects the reasons for the conviction of the innocent in the DNA cases do not seem strikingly different than those cited by Yale Professor Edwin Borchard in his seminal work, Convicting the Innocent (Garden City Pub., 1932), which reviewed 65 cases, and more recently by Hugo Bedau and Michael Radelet in In Spite of Innocence (Northeastern University Press, 1992), which reviewed 416 erroneous convictions in death cases from 1900 to 1991. Mistaken eyewitness identification, coerced confessions, unreliable forensic laboratory work, law enforcement misconduct, and ineffective representation of counsel, singly and often in combination, remain the leading causes of wrongful convictions.

There are, however, historically unique aspects to the DNA exoneration cases. Most significantly, both the postconviction cases described in this report and the prospective sexual assault exclusions produced by the FBI and other laboratories create an opportunity for groundbreaking criminal justice research.

Take, for instance, just the FBI's sexual assault cases. One can confirm among these cases, with greater scientific assurance than is ordinarily provided by a trial verdict, which suspects charged were truly innocent and which suspects were truly guilty. We believe it crucial to identify, prior to any DNA testing, precisely what factors in the investigatory and charging process produced incorrect results in some of these cases and correct results in others. Are there systemic weaknesses that can be identified in eyewitness identification procedures, crime scene investigations, non-DNA laboratory tests (hair, fiber, etc.), police interrogation techniques, or other investigatory methods used by police and prosecutors that are conducive to false or true arrests and convictions? Perhaps there has never been a richer or more exciting set of cases for criminal justice researchers to explore in terms of shedding light on how law enforcement methods impact the crucial problem of factual innocence.

Finally, notwithstanding the research opportunities presented by the postarrest and postconviction DNA exoneration cases as to how wrongful accusations and convictions occur, the most significant implication of these cases is already apparent -- the extent of factually incorrect convictions in our system must be much greater than anyone wants to believe. Postarrest and postconviction DNA exonerations have invariably involved analysis of sexual assault evidence (sperm), even if a murder charge was involved, that proved the existence of mistaken eyewitness identification. Since there does not seem to be anything inherent in sexual assault cases that would make eyewitnesses more prone to mistakes than in robberies or other serious crimes where the crucial proof is eyewitness identification, it naturally follows that the rate of mistaken identifications and convictions is similar to DNA exoneration cases.

The recently passed anti-terrorism bill contains a sweeping and unprecedented curtailment of the right to obtain postconviction habeas corpus relief in the Federal courts: Strict time limits (1 year in nondeath cases, 3 months in death cases) have been set for filing the writ; State court factual findings are "presumed to be correct"; State court misinterpretations of the United States Constitution are not a basis for relief unless those misinterpretations are "unreasonable"; and all petitioners must show, prior to obtaining a hearing, facts sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the petitioner guilty. In short, just as DNA testing, the most important technological breakthrough of twentieth century forensic science, demonstrates that the problem of wrongful convictions in America is systemic and serious, Congress and the President, in our view, have eviscerated the "great writ" that for two centuries provided relief to those who were unjustly convicted. Hopefully, before this century closes, as the ramifications of the DNA exoneration cases become better understood, this triumph of political expediency over America's traditional concerns for liberty and justice will be redressed.

Footnotes
Commentary by Peter Neufeld, Esq. and Barry C. Scheck

1. Although there is no sure way to determine what the results would have been on the inconclusive tests if results had been obtainable, it seems a fair assumption, given the strong trends over a 7-year period, that the percentages of exclusions and inclusions of the primary suspect would have run about the same as the cases where results were obtainable. Indeed, since most of the FBI's cases since 1989 involved RFLP tests, which require greater amounts of sample than PCR-based testing, it would be interesting to test this hypothesis by performing PCR tests on some of the old inconclusive cases where primary suspects were either acquitted or convicted.

2. While we would be the last to discount the possibility of laboratory error in any DNA testing case, be it an exclusion or an inclusion, great pains have been taken in the postconviction DNA exoneration cases to minimize this factor. First, it must be stressed that these cases, even if involving a homicide, have invariably involved analysis of sperm from swabs (vaginal, oral, or anal) or from clothes worn by the victim. Thus, the chance of inadvertently cross-contaminating the samples with someone else's sperm is remote. Secondly, sexual assault evidence provides an intrinsic redundancy, or internal control, in that the DNA profile from epithelial cells found in samples can be cross-checked against the known DNA profile of the victim. Finally, before convicted prisoners have been released, either through postconviction court orders or clemency grants from governors, the prosecution has insisted upon independent testing of samples by their own experts and elimination samples from other possible sperm donors (husbands or boyfriends) even if it was the prosecution's position at trial that the sperm came from the perpetrator.

CHAPTER I: Introduction

"I had," said he, "come to an entirely erroneous conclusion which shows, my dear Watson, how dangerous it always is to reason from insufficient data." - Arthur Conan Doyle, The Adventure of the Speckled Band

One way to view science is that it is a search for truth.1 Forensic science is no exception. As Attorney General Janet Reno emphasized, "The use of forensic science as a tool in the search for truth allows justice to be done not only by apprehending the guilty but also by freeing the innocent."2

This report describes a study that focused on the freeing of the innocent -- persons initially convicted and imprisoned but later released through postconviction forensic use of DNA technology.

Purpose and Scope of the Study

The principal purpose of the study, initiated in June 1995, was to identify and review cases in which convicted persons were released from prison as a result of posttrial DNA testing of evidence. As of early 1996, researchers had found 28 such cases: DNA test results obtained subsequent to trial proved that, on the basis of DNA evidence, the convicted persons could not have committed the crimes for which they were incarcerated.

The study also involved a survey of 40 laboratories that conduct DNA testing.

This report does not probe the strengths or weaknesses of forensic DNA technology when applied to criminal cases.3 The discussion of DNA instead is limited to its use in exculpating convicted defendants serving prison sentences.

The authors do not claim to be scientific experts in DNA technology. This report cites reference materials that probe technological details more deeply than occurs on these pages.

The balance of this chapter outlines the study's design and provides basic background information on forensic DNA identification testing. Chapters II and III, respectively, present the study's findings and their policy implications. The final chapter consists of brief profiles of the 28 exculpatory cases. A glossary defines DNA-related terms, and the appendix reports DNA test results for some of the exculpated persons profiled in this report.

Study Design

To identify cases that met study criteria -- defendant conviction, imprisonment, and subsequent exoneration and release resulting from posttrial exculpatory DNA tests -- researchers examined legal and newspaper data bases and interviewed a variety of legal and DNA experts. Once initially identified as likely candidates for the study, cases were verified and assessed through interviews with the involved defense counsel, prosecutors, and forensic laboratory staff; through reviews of court opinions; and, in some instances, through examinations of case files.

For example, initial identification of the Glen Woodall case resulted from an automated search of newspaper data bases, which identified articles about the case in several West Virginia newspapers, the Philadelphia Inquirer, and the Cleveland Plain Dealer. An opinion by the West Virginia Supreme Court of Appeals in the appeal of Woodall's conviction (State v. Woodall, 385 S.E.2d 253, W. Va. 1989) contained the name of Woodall's defense attorney, who was called and interviewed at length and who provided materials related to the criminal case.

Those materials described improper activities by Fred Zain, once a serologist for the West Virginia State Police. A phone conversation with the West Virginia assistant attorney general handling the Zain misconduct cases resulted in the receipt of public case documents containing extensive details on Zain's activities related to the Woodall investigation and prosecution.

A review of transcripts from the criminal and, later, civil cases yielded the name of the laboratory that conducted the DNA testing that exculpated Woodall. A lengthy interview was conducted with the laboratory's forensic scientist who performed the DNA tests on the Woodall evidence. He provided documentation related to his examinations in the case.

Cases related to a special West Virginia Supreme Court of Appeals investigation into government misconduct surrounding Woodall's case (438 S.E.2d 501, W. Va. 1993; 445 S.E.2d 165, W. Va. 1994) also were reviewed.

Researchers collected information for the survey of DNA-testing laboratories through telephone interviews. An experienced crime laboratory director assisted the Institute for Law and Justice in conducting the survey.

This study, conducted in a short time period with limited funding, reflects a modest level of analysis and focuses on a relatively small number of cases. One can state with confidence, however, that as of the study's completion, the 28 cases identified represent most of the situations in the country where convicted felons had been released from prison on the basis of postconviction DNA testing.4

Background on Forensic Use of DNA Identification Testing

Perhaps the most significant advance in criminal investigation since the advent of fingerprint identification is the use of DNA technology to help convict criminals or eliminate persons as suspects. DNA analyses on saliva, skin tissue, blood, hair, and semen can now be reliably used to link criminals to crimes. Increasingly accepted during the past 10 years, DNA technology is now widely used by police, prosecutors, defense counsel, and courts in the United States.

An authoritative study on the forensic uses of DNA, conducted by the National Research Council of the National Academy of Sciences, has noted that:

...the reliability of DNA evidence will permit it to exonerate some people who would have been wrongfully accused or convicted without it. Therefore, DNA identification is not only a way of securing convictions; it is also a way of excluding suspects who might otherwise be falsely charged with and convicted of serious crimes.5

Forensic use of DNA technology in criminal cases began in 1986 when police asked Dr. Alec J. Jeffreys (who coined the term "DNA fingerprints"6) of Leicester University (England) to verify a suspect's confession that he was responsible for two rape-murders in the English Midlands.7 Tests proved that the suspect had not committed the crimes. Police then began obtaining blood samples from several thousand male inhabitants in the area to identify a new suspect.8 In a 1987 case in England, Robert Melias became the first person convicted of a crime (rape) on the basis of DNA evidence.9

In one of the first uses of DNA in a criminal case in the United States, in November 1987, the Circuit Court in Orange County, Florida, convicted Tommy Lee Andrews of rape after DNA tests matched his DNA from a blood sample with that of semen traces found in a rape victim.10

Two other important early cases involving DNA testing are State v. Woodall11 and Spencer v. Commonwealth.12 In Woodall, the West Virginia Supreme Court was the first State high court to rule on the admissibility of DNA evidence. The court accepted DNA testing by the defendant, but inconclusive results failed to exculpate Woodall. The court upheld the defendant's conviction for rape, kidnaping, and robbery of two women. Subsequent DNA testing determined that Woodall was innocent, and he was released from prison (see the case profile in chapter IV for more details).

The multiple murder trials in Virginia of Timothy Wilson Spencer were the first cases in the United States where the admission of DNA evidence led to guilty verdicts resulting in a death penalty. The Virginia Supreme Court upheld the murder and rape convictions of Spencer, who had been convicted on the basis of DNA testing that matched his DNA with that of semen found in several victims. In Spencer, the defendant's attack upon the introduction of DNA evidence was limited to the contention that its novelty should lead the court to "hold off until another day any decision..."13 There was no testimony from expert witnesses that challenged the general acceptance of DNA testing among the scientific community.14

The first case that seriously challenged a DNA profile's admissibility was People v. Castro;15 the New York Supreme Court, in a 12-week pretrial hearing, exhaustively examined numerous issues relating to the admissibility of DNA evidence. Jose Castro was accused of murdering his neighbor and her 2-year-old daughter. A bloodstain on Castro's watch was analyzed for a match to the victim. The court held the following:

o DNA identification theory and practice are generally accepted among the scientific community.

o DNA forensic identification techniques are generally accepted by the scientific community.

o Pretrial hearings are required to determine whether the testing laboratory's methodology was substantially in accord with scientific standards and produced reliable results for jury consideration.

The Castro ruling supports the proposition that DNA identification evidence of exclusion is more presumptively admissible than DNA identification evidence of inclusion. In Castro, the court ruled that DNA tests could be used to show that blood on Castro's watch was not his, but tests could not be used to show that the blood was that of his victims.

In Castro, the court also recommended extensive discovery requirements for future proceedings, including copies of all laboratory results and reports; explanation of statistical probability calculations; explanations for any observed defects or laboratory errors, including observed contaminants; and chain of custody of documents. These recommendations soon were expanded upon by the Minnesota Supreme Court, in Schwartz v. State,16 which noted, "...ideally, a defendant should be provided with the actual DNA sample(s) in order to reproduce the results. As a practical matter, this may not be possible because forensic samples are often so small that the entire sample is used in testing. Consequently, access to the data, methodology, and actual results is crucial...for an independent expert review."17

In Schwartz, the Supreme Court of Minnesota refused to admit the DNA evidence analyzed by a private forensic laboratory; the court noted the laboratory did not comply with appropriate standards and controls. In particular, the court was troubled by failure of the laboratory to reveal its underlying population data and testing methods. Such secrecy precluded replication of the test.

In summary, courts have successfully challenged improper application of DNA scientific techniques to particular cases, especially when used to declare "matches" based on frequency estimates. However, DNA testing properly applied is generally accepted as admissible under Frye18 or Daubert19 standards.20 As stated in the National Research Council's 1996 report on DNA evidence, "The state of the profiling technology and the methods for estimating frequencies and related statistics have progressed to the point where the admissibility of properly collected and analyzed DNA data should not be in doubt."21 At this time, 46 States admit DNA evidence in criminal proceedings. In 43 States, courts have ruled on the technology, and in 3 States, statutes require admission (see exhibit 1).

Exhibit 1. DNA Evidence Admission in Criminal Trials by State

State DNA Admitted
Alabama Yes
Alaska Yes
Arizona Yes
Arkansas Yes
California Yes*
Colorado Yes
Connecticut Yes
Delaware Yes
Florida Yes
Georgia Yes
Hawaii Yes
Idaho Yes
Illinois Yes*
Indiana Yes
Iowa Yes
Kansas Yes
Kentucky Yes
Louisiana Yes
Maine No
Maryland Yes*
Massachusetts Yes
Michigan Yes
Minnesota Yes
Mississippi Yes
Missouri Yes
Montana Yes
Nebraska Yes
Nevada Statute
New Hampshire Yes
New Jersey Yes*
New Mexico Yes
New York Yes
North Carolina Yes
North Dakota No
Ohio Yes
Oklahoma Statute
Oregon Yes
Pennsylvania Yes
Rhode Island No
South Carolina Yes
South Dakota Yes
Tennessee Statute
Texas Yes
Utah No
Vermont Yes
Virginia Yes
Washington Yes
West Virginia Yes
Wisconsin Yes
Wyoming Yes

* Decision by Intermediate Court of Appeals

Notes

1. "Science is the search for truth -- it is not a game in which one tries to beat his opponent, to do harm to others." -- Linus Pauling, 1958. Cited in Beck, Emily Morison (ed.), Familiar Quotations, Boston: Little, Brown and Company, 1980.

2. Keynote address by Attorney General Janet Reno before the American Academy of Forensic Sciences, Nashville, Tennessee, February 21, 1996.

3. For articles debating the forensic use of DNA technology, see Thompson, William, "Evaluating the Admissibility of New Genetic Identification Tests: Lessons from the DNA War," The Journal of Criminal Law & Criminology, 84, 1 (1993):22-104; Harmon, Rockne, "Legal Criticisms of DNA Typing: Where's the Beef?" The Journal of Criminal Law & Criminology, 84, 1 (1993):175-188; and Neufeld, Peter, "Have You No Sense of Decency?" The Journal of Criminal Law & Criminology, 84, 1 (1993):189- 202.

4. The study's results have been reviewed by many persons, including those involved in a peer review process. To date, no one has identified additional cases that, as of the study's completion in February 1996, are the type examined in this report.

5. National Research Council, National Academy of Sciences, DNA Technology in Forensic Science, Washington, D.C.: National Academy Press, 1992:156. (Cited as NRC report.) Another reference source is McKenna, Judith, J. Cecil, and P. Coukos, "Reference Guide on Forensic DNA Evidence," Reference Manual on Scientific Evidence, Federal Judicial Center (1994). This guide has a useful glossary of terms at p. 323.

6. Jeffreys, Alec J., Victoria Wilson, and Swee Lay Thein, "Hypervariable `Minisatellite' Regions in Human Nature," Nature, 314 (1985):67; "Individual-Specific `Fingerprints' of Human DNA," Nature, 316 (1985):76.

7. The first reported use of DNA identification was in a noncriminal setting to prove a familial relationship. A Ghanaian boy was refused entry into the United Kingdom (U.K.) for lack of proof that he was the son of a woman who had the right of settlement in the U.K. Immigration authorities contended that the boy could be the nephew of the woman, not her son. DNA testing showed a high probability of a mother-son relationship. The U.K. Government accepted the test findings and admitted the boy. See Kelly, K.F, J.J. Rankin, and R.C. Wink, "Methods and Applications of DNA Fingerprinting: A Guide for the Non-Scientist," Criminal Law Review (1987):105, 108; Note, "Stemming the DNA Tide; A Case for Quality Control Guidelines," Hamline Law Review, 16 (1992):211, 213-214.

8. Gill, Peter, Alec J. Jeffreys, and David J. Werrett, "Forensic Application of DNA Fingerprints," Nature, 318 (1985):577. See also Seton, Craig, "Life for Sex Killer Who Sent Decoy to Take Genetic Test," The Times (London) (January 23, 1988):3. A popular account of this case, The Blooding, was written by crime novelist Joseph Wambaugh, New York, N.Y.: William Morrow & Co., Inc., 1989.

9. Bureau of Justice Statistics, "Forensic DNA Analysis: Issues," Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, June 1991, at 4, note 8.

10. The admissibility of the DNA evidence was upheld by the intermediate appeals court, which cited the uncontroverted testimony of the State's expert witnesses. State v. Andrews, 533 So.2d 841 (Dist. Ct. App. 1989). See also Office of Technology Assessment, Congress of the United States, Genetic Witness: Forensic Uses of DNA Tests, Washington, D.C.: July 1990.

11. 385 S.E.2d 253 (W. Va. 1989).

12. 384 S.E.2d 775 (1989). Additional court appeals by Spencer were rejected by the Virginia Supreme Court at 384 S.E.2d 785 (1989); 385 S.E.2d 850 (1989); and 393 S.E.2d 609 (1990).

13. Supra note 12 at 783.

14. Id., at 797.

15. 545 N.Y.S.2d 985 (Sup. Ct. 1989). Castro's case was never tried. He pleaded guilty to the murders in late 1989.

16. Schwartz v. State, 447 N.W.2d 422 (1989).

17. Id., at 427. The Minnesota Supreme Court further held that the use of statistical probabilities testimony should be limited because of its potential for prejudicing the jury. Id., at 428. The opinion was later modified in State v. Bloom, 516 N.W.2d 159 (1994).

18. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The test for the admissibility of novel scientific evidence enunciated in this case has been the most frequently invoked one in American case law. To be admissible, scientific evidence must be "sufficiently established to have gained general acceptance in the particular field in which it belongs."

19. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). The Supreme Court used this civil case to articulate new standards for interpreting the admissibility of scientific evidence under the Federal rules of evidence. This standard, while encompassing Frye, allows a court to expand its examination to include other indicia of reliability, including publications, peer review, known error rate, and more. The court also should consider factors that might prejudice or mislead the jury. For the application of Daubert to DNA technology, see Sheck, Barry, "DNA and Daubert," Cardozo Law Review, 15 (1994):1959.

20. This brief overview is not a treatise on DNA evidence admissibility in criminal cases. For more authoritative articles, see, Thompson, supra note 3; Kaye, D.H., "The Forensic Debut of the National Research Council's DNA Report: Population Structure, Ceiling Frequencies and the Need for Numbers," Jurimetrics Journal, 34, 4 (1994):369- 382; Comments, "Admissibility of DNA Statistical Data: A Proliferation of Misconception," California Western Law Review, 30 (1993):145-178.

21. National Research Council, National Academy of Sciences, The Evaluation of Forensic DNA Evidence (prepublication copy), Washington, D.C.: National Academy Press, 1996:2.14.

================================

CHAPTER II: Study Findings

Findings pertaining to characteristics of the 28 DNA exculpatory cases identified during the study are discussed first. The chapter concludes with the results of the telephone survey of DNA laboratories.

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General Characteristics Shared by Many Study Cases

The 28 cases in this study were tried in 14 States and the District of Columbia. The States are Illinois (5 cases), New York (4 cases), Virginia (3 cases), West Virginia (3 cases), Pennsylvania (2 cases), California (2 cases), Maryland, North Carolina, Connecticut, Kansas, Ohio, Indiana, New Jersey, and Texas. Many cases share a number of descriptive characteristics, as noted below.

Most cases mid- to late 1980s. Most cases involved convictions that occurred in the 1980s, primarily mid- to late 1980s, a period when forensic DNA technology was not readily accessible. The earliest case involved a conviction in 1979, the most recent in 1991.

In each of the 28 cases, a defendant was convicted of a crime or crimes and serving a sentence of incarceration. While in prison, each defendant obtained, through an attorney, case evidence for DNA testing and consented to a comparison of the evidence-derived DNA to his own DNA sample. (In Nelson, the prosecutor conducted the tests.) In each case, the results showed that there was not a match, and the defendant was ultimately set free.

Sexual assault the most frequent crime. All 28 cases involved some form of sexual assault. In six (Bloodsworth, Cruz, Hernandez, Linscott, Nelson, and Vasquez), assailants also murdered their victims. All alleged assailants were male. All victims were female: most were adults, others teenagers or children. All but one case involved a jury trial. (The nonjury case, Vasquez, involved a guilty plea from a defendant who had mental disabilities.) Of the cases where the time required for jury deliberations was known, most had verdicts returned in less than 1 day, except for Kotler, which required 2 days.

Prison time served. The 28 defendants served a total of 197 years in prison (an average of almost 7 years each) before being released as a result of DNA testing. The longest time served was 11 years, the shortest 9 months. For a variety of legal reasons, defendants in several cases continued to remain in prison for months after exculpatory DNA test results. In Green, DNA testing was performed after conviction but prior to sentencing.

Many defendants also qualified for public defenders or appointed counsel. Most defendants appealed their convictions at least once; many appealed several times. Most appeals focused on trial error (e.g., ineffective assistance of counsel) or new evidence. For example, in some cases, the victims recanted their defendant identification testimony.

Prior police knowledge of the defendants. Police knew 15 defendants prior to their arrests, generally through criminal records. It is not known whether, in some cases, that may have influenced police to place suspects in photo spreads and lineups shown to victims and other eyewitnesses.

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Evidence Presented During/After Trial: Common Attributes

The 28 cases shared several common themes in the evidence presented during and after trial.

Eyewitness identification. All cases, except for homicides, involved victim identification both prior to and at trial. Many cases also had additional eyewitness identification, either placing the defendant with the victim or near the crime scene (e.g., in Bloodsworth, five witnesses testified that they had seen the defendant with the 9-year-old victim on the day of the murder).

Many defendants presented an alibi defense, frequently corroborated by family or friends. For example, Edward Honaker's alibi was corroborated by his brother, sister-in-law, mother's housemate, and trailer park owner. The alibis apparently were not of sufficient weight to the juries to counter the strength of the eyewitness testimony.

Use of forensic evidence. A majority of the cases involved non-DNA-tested forensic evidence that was introduced at trial. Although not pinpointing the defendants, that evidence substantially narrowed the field of possibilities to include them. Typically, those cases involved comparisons of nonvictim specimens of blood, semen, or hair at the crime scene to that of the defendants. Testimony of prosecution experts also was used to explain the reliability and scientific strength of non-DNA evidence to the jury.

Alleged government malfeasance or misconduct. Eight cases, as reported by defense attorneys and reflected in some judges' opinions, involved allegations of government misconduct, including perjured testimony at trial, police and prosecutors who intentionally kept exculpatory evidence from the defense, and intentionally erroneous laboratory tests and expert testimony admitted at trial as evidence. For example:

o In Honaker, the defendant's attorney alleged that the government intentionally kept exculpatory evidence from the defense, including information that two of the government's witnesses were secretly hypnotized to enhance their testimony and that the prosecution's criminalist was never told that Honaker had a vasectomy (and could not have been the source of the sperm in the victim).

o In Cruz, a supervising officer in the sheriff's department admitted, during the third trial, that he had lied about corroborating the testimony of his deputies in the earlier trials. This testimony focused on Cruz's "dream visions" of the murder.

o In Kotler, the government's serologist reportedly lied about his qualifications. In addition, Kotler's attorneys alleged that the government intentionally withheld exculpatory evidence from the defense. For example, police reports stated that the victim did not actually positively identify the defendant's picture but described him only as a "look alike." Furthermore, as recorded in police reports, the victim's description of the defendant was inaccurate for age, height, and weight. The defense was never informed about those reports.

o In cases involving defendants Glen Woodall, William O'Dell Harris, and Gerald Wayne Davis (and his father), the perjured testimony of Fred Zain, a serologist then with the West Virginia State Police, was in large part responsible for the wrongful convictions that ensued. The West Virginia Supreme Court of Appeals, in a special report on Zain's misconduct in more than 130 criminal cases, stated that such behavior included "...overstating the strength of results; ...reporting inconclusive results as conclusive; ...repeatedly altering laboratory records; ...."1 The report also noted that Zain's irregularities were "the result of systematic practice rather than an occasional inadvertent error." In addition, the report stated that Zain's "supervisors may have ignored or concealed complaints of his misconduct."2

o In Alejandro, the defendant was also wrongfully convicted by expert testimony from Fred Zain, who had moved from West Virginia to Texas and worked for the Bexar County crime laboratory. In July 1994, a Uvalde County grand jury indicted Zain for perjury, tampering with government records, and fabricating evidence. As of early 1996, charges of tampering and of fabricating evidence had been dropped, leaving three charges for aggravated perjury in effect, for which Zain reportedly seeks dismissal on statute of limitations grounds.

Evidence discovered after trial. In most of the cases in this study, DNA test results represented newly discovered evidence obtained after completion of the trials. States have time limits on filing motions for new trials on the basis of newly discovered evidence. For example, in Virginia, new evidence must be presented by motion within 21 days after the trial.3 Thus, the Honaker, Snyder, and Vasquez cases required a pardon from Virginia's governor to release the defendants from prison.

In some of the study cases, prosecutors waived time limits when presented with the DNA exculpatory results. However, prosecutors also have contested defendants' attempts to release evidence for DNA testing.

States also differ in the legislation and procedures pertaining to postconviction appointment of counsel and to authorization to pay for the DNA testing. Many cases involved indigents.

DNA testing. The DNA testing phase of these cases also has common characteristics. Nearly all the defendants had their tests performed by private laboratories. The tests were conducted using blood from defendants, blood or blood-related evidence from victims, and semen stains on articles of the victims' clothing or on nearby items (a blanket was tested in one case). In over half the cases, the prosecution either conducted a DNA test totally independent of that of the defense or sent test results obtained by the defendant's laboratory to a different one to determine whether the laboratory used by the defense interpreted test results properly.

Eight laboratories used Restriction Fragment Length Polymorphism (RFLP) DNA testing, 17 conducted Polymerase Chain Reaction (PCR) testing, and 2 used both tests. For one case, the type of DNA test conducted is unknown.

Preservation of evidence. In some cases, evidence samples had deteriorated to the point where DNA testing could not be performed. In Brison, the laboratory could not test cotton swabs from the rape kit but, instead, tested a semen stain from the victim's underwear. In Daye, after the appellate court affirmed the defendant's conviction and the State Supreme Court denied certification, the evidence was about to be destroyed when Daye's attorney filed to stay the destruction in order to conduct DNA testing.

The chain of custody in some of the cases also demonstrated a lack of adherence to proper procedures. Authorities on the subject note that the "mishandling of real evidence affects the integrity of the factfinding process."4 In Dabbs, the defendant's attorneys reported that the defense was initially advised by the prosecution that the evidence (victim's underwear that contained a semen stain) had been destroyed (a conclusion based on failure of authorities to find the evidence in police or court custody). Eventually, the defense found the evidence at the county crime laboratory.

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Results of DNA Laboratory Survey

Conducted in June 1995, the nationwide telephone survey of 40 public and private laboratories that performed DNA tests sought answers to such questions as: From the time the laboratories began DNA testing, how many cases have they handled? Of that number, what percentage yielded results that excluded defendants as sources of the DNA evidence or were inconclusive?

The 40 surveyed laboratories yielded 19 whose available data were sufficient for the purposes of this study. The 19 included 13 at the State/local level, 4 in the private sector, an armed forces laboratory, and the FBI's laboratory.

Most of the laboratories had initiated DNA testing only within the previous few years. Twelve began testing between 1990 and 1992. Three of the four private laboratories began in 1986 or 1987, while the FBI started DNA testing in 1988.

Seven of the laboratories reported using RFLP testing; four, PCR testing; and eight, both types of tests.

The 19 laboratories reported that, since they began testing, they had received evidence in 21,621 cases for DNA analysis, with the FBI accounting for 10,060 cases. Three of the 4 private laboratories averaged 2,400 each; the State and local laboratories averaged 331 each.

In about 23 percent of the 21,621 cases, DNA test results excluded suspects, according to respondents. An additional 16 percent of the cases, approximately, yielded inconclusive results, often because the test samples had deteriorated or were too small. Inconclusive results aside, test results in the balance of the cases did not exclude the suspect.

The FBI reported that, in the 10,060 cases it received, DNA testing results were about 20 percent inconclusive and 20 percent exclusion; the other 18 laboratories (11,561 cases) reported about 13 percent and 26 percent, respectively.*

Unfortunately, the laboratories were unable to provide more details. They did not maintain data bases that would permit categorization of DNA test results by type of offense and other criteria. What happened to the suspects who were excluded through DNA testing also cannot be determined. Were they released, or were they charged on the basis of other evidence, for example?

Thus, only the most general information is known about the results of DNA testing by laboratories. To obtain more detailed information would require a comprehensive research project.

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Notes

1. Matter of West Virginia State Police Crime Laboratory, 438 S.E.2nd 501, 503 (W.Va. 1993).

2. Id., at 504.

3. Virginia Supreme Court Rules, Rule 3A: 15(b).

4. Giannelli, Paul, "Chain of Custody and the Handling of Real Evidence," American Criminal Law Review, 20, 4 (Spring 1983):527-568.

*If inconclusive cases were omitted, the exclusion rate for the FBI would be approximately 25 percent, and the average exclusion rate for the other 18 laboratories would be about 30 percent.

================================

CHAPTER III: Policy Implications

The 28 cases examined by the study raise issues that have policy implications for the criminal justice system. The most significant are presented below.1

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Reliability of Eyewitness Testimony

In the majority of the cases, given the absence of DNA evidence at the trial, eyewitness testimony was the most compelling evidence. Clearly, however, those eyewitness identifications were wrong. In one of the clearest examples of eyewitness testimony overwhelmingly influencing the jury, the Pennsylvania Intermediate Court of Appeals commented on the evidence in the Dale Brison case:

The Commonwealth's evidence consisted primarily of the victim's identification testimony. However, the victim's stab wounds in addition to the weather and reduced visibility may well have affected the victim's ability to accurately view her assailant, and thus, she may have been prompted to identify appellant merely because she remembered seeing him in the neighborhood. Moreover, the victim did not specifically describe any of her assailant's facial characteristics to the police. There was also no conclusive physical evidence, aside from a single hair sample which may have been consistent with any male of [A]frican-[A]merican descent, linking appellant to the crime.2

This points conclusively to the need in the legal system for improved criteria for evaluating the reliability of eyewitness identification.

In Neil v. Biggers,3 the U.S. Supreme Court established criteria that jurors may use to evaluate the reliability of eyewitness identifications. However, the reliability of eyewitness testimony has been criticized extensively in the literature.4 In a recent interview, Dr. Elizabeth Loftus, one of the best-known critics of the reliability of eyewitness identification, commented on the role of DNA testing in exonerating innocent persons who served time in prison. Dr. Loftus noted that a significant factor is the potential susceptibility of eyewitnesses to suggestions from police, whether intentional or unintentional. As reported, Dr. Loftus stated that there is "pressure that comes from the police [who] want to see the crime solved, but there is also a psychological pressure that is understandable on the part of the victim who wants to see the bad guy caught and wants to feel that justice is done."5

Dr. Loftus has recommended more open-ended questioning of victims by the police to avoid leading questions. In addition, Dr. Loftus and others have recommended use of expert testimony regarding the pros and cons of relying on eyewitness testimony.6

Reliability of Non-DNA Analyses of Forensic Evidence Compared to DNA Testing

In many of the study cases, according to documentation examined and those interviewed, scientific experts had convinced juries that non-DNA analyses of blood or hair were reliable enough to clearly implicate the defendants. Scientific conclusions based on non-DNA analyses, however, were proven less discriminating and reliable than those based on DNA tests. These findings point to the need for the scientific community to take into account the reliability of non-DNA forensic analyses vis-…-vis DNA testing in identifying the sources of biological evidence.

In a recent habeas corpus hearing in a murder case, a U.S. district court held that expert testimony on microscopic hair comparisons was inadmissible under the Daubert standard.7 The court cited studies documenting a high error rate and found that there are no accepted probability standards for human hair identification. The court ruled that in this case the expert's hair testimony was "imprecise and speculative, and its probative value was outweighed by its prejudicial effect."8

Competence and Reliability of DNA Laboratory Procedures

One of the lasting effects of the O.J. Simpson case will likely be greater scrutiny by defense lawyers of the prosecution's forensic DNA evidence presented in criminal cases. In the Simpson case, the defense, in essence, put the crime laboratory on trial. The National Research Council (NRC) report entitled DNA Technology in Forensic Science states:

There is no substantial dispute about the underlying [DNA] scientific principles. However, the adequacy of laboratory procedures and the competence of the experts who testify should remain open to inquiry.9

The NRC report recommends some degree of standardization to ensure quality and reliability. The report recommends that each forensic laboratory engaged in DNA testing must have a formal, detailed program of quality assurance and quality control. The report also states:

Quality-assurance programs in individual laboratories alone are insufficient to ensure high standards. External mechanisms are needed to ensure adherence to the practices of quality assurance. Potential mechanisms include individual certification, laboratory accreditation, and state or federal regulation.10

As recently reported by the American Society of Crime Laboratory Directors, 32 public DNA laboratories have been accredited. In addition, one private laboratory is accredited.11

Whether laboratories that conduct DNA tests possess the requisite qualifications has significant cost implications for the criminal justice system in terms of reducing the number of redundant DNA tests. In many cases in this study, both prosecution and defense obtained independent DNA tests of the biological stain evidence. Although independent examinations are common in areas that are more open to interpretation (e.g., mental fitness for trial), DNA testing, for exculpatory purposes, should be performed in a qualified laboratory, and the results, if they exculpate the suspect, should be accepted by both parties. Such acceptance would seem more likely if DNA tests were performed by laboratories that all parties agreed were qualified.

Preservation of Evidence for DNA Testing

In some States, sentenced felons may experience difficulty obtaining access to evidence for DNA testing. With an increasing volume of criminal cases, some police agencies destroy evidence when defendants have exhausted their appeals. Even when defendants obtain access to the evidence, it may be too deteriorated for DNA testing. In some of the study cases, insufficient evidence prevented laboratories from conducting Restriction Fragment Length Polymorphism (RFLP) testing, but Polymerase Chain Reaction (PCR) testing was still possible.

Preserving biological stain evidence and maintaining the proper chain of custody of the evidence are essential for successful DNA testing.12 At the trial stage, however, the U.S. Supreme Court has ruled that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.13 After a defendant's conviction, prosecutors are not required by constitutional duty to preserve evidence indefinitely. As noted earlier, in Daye, the evidence was about to be destroyed when his attorney filed to stay the destruction to conduct what turned out to be an exculpatory DNA test.

Training in DNA Forensic Uses

The introduction of DNA technology into the criminal trial setting is likely to create uncertainty, spawned in part by the complexity of the technology, and also to possibly generate unrealistic expectations of the technology's power in the minds of some or all of the players: prosecution, defense, judges, and jurors. The scientific complexities of the technology may influence all parties to rely more heavily on expert testimony than on other types of evidence.

As the use of DNA technology becomes more widely publicized, juries will come to expect it, like fingerprint evidence. This will place more pressure on prosecutors to use the technology whenever possible, especially as the cost decreases. Prosecutors must be trained on when to use the technology and how to interpret results for the jury.

When the prosecution uses DNA evidence, the defense will be forced to attack it through expert testimony. The defense must rebut the persuasiveness of the evidence for the jury. As stated in the NRC report, "Mere cross examination by a defense attorney inexperienced in the science of DNA testing will not be sufficient."14 Thus, defense counsel as well as the prosecution and judiciary must receive training in the forensic uses of DNA technology.

Third-Party Consensual Sex Sources

The primary objective of the defense in using DNA testing in rape cases is to show that the defendant is excluded as the source of the semen evidence. Even when exclusion is established, the prosecution may be motivated, as in Davis, to eliminate as suspects any and all consensual sex partners as sources of semen in rape cases. During the first trial of Gerald Wayne Davis, the prosecution contended that the semen in the victim came from Davis. After DNA testing had excluded Davis as the source of the semen, the prosecution contended, in the second trial, that Davis could have still raped the victim but not ejaculated and that the semen in the victim could have come from the victim's fianc‚ just prior to the rape. The prosecution never obtained a blood sample from the fianc‚ because he died before the second trial.

A question under the law is whether third parties can be compelled to provide biological evidence for DNA testing. In some cases, the government refused to release defendants after exculpatory DNA results until third parties were located and tested. Kerry Kotler was held for an additional year after his exculpatory DNA test so the government could test the victim's husband. Edward Honaker was held for an additional 9 months after his exculpatory DNA test so the government could test the victim's boyfriend and "secret lover."

Multiple-Defendant Crimes

The DNA technology used to analyze biological evidence from crime scenes must not be oversold as an exculpatory tool -- it does have limitations. Multiple-suspect crimes present a particular problem for use of DNA identification as a crime-solving tool. In multiple-suspect sexual assaults without eyewitnesses, such as a rape-murder, it is possible that only one of the suspects ejaculated in, or even raped, the victim. In such cases, DNA testing of semen would seem likely to exculpate one or more of the suspects. This type of situation presents a real dilemma for police and prosecutors. Because of exculpatory DNA tests on semen and possibly other exculpatory evidence (e.g., an alibi, lack of other physical evidence), pressure mounts on prosecutors to release one or more of the suspects. The only other evidence against them may be the testimony of a suspect who is matched to the crime by DNA analysis.

In Dabbs, for example, the victim testified that she was dragged into an alley and raped by one man while two other men held her down. The police arrested Dabbs on the basis of identification of him by the victim, a distant cousin. The other alleged assailants were never identified or arrested. The DNA test showed that the semen evidence from the victim did not match Dabbs. One theory of the case, however, was that Dabbs participated in the crime but was not the rapist. The prosecutor ultimately dismissed the original indictment against Dabbs because of the DNA results and the reluctance of the victim to testify at a new trial.

Posttrial Relief

Most States have a time limit on presenting evidence newly discovered after trial, conviction, and sentencing. The reason for limiting the time to file appeals based on new evidence is to ensure the integrity of the trial process and jury verdicts. Many DNA issues in the study cases were not raised until the postconviction stages. Absent constitutional issues, many State procedures, as in Virginia,15 may preclude consideration of new exculpatory DNA evidence at postconviction stages. Some of the study defendants, after receiving exculpatory DNA results, were released only by agreement of the prosecutor; sometimes they needed a pardon by the governor.

Some States, such as Oregon, permit judges to use discretion to waive new-evidence rules and set aside verdicts or order new trials.16 Thus, some States may allow an out-of-time motion for a new trial when newly discovered evidence clearly serves the interests of justice.17

At postconviction stages, appointment of counsel and payment for DNA testing become issues for indigents. While some appeals courts have ordered State-paid DNA testing for indigents where justified (e.g., where the overall case against the defendant is weak), other court rulings deny such relief, especially where the exculpatory value is speculative.18 As DNA testing to exculpate convicted persons becomes more widespread, States need to consider these issues.

Future DNA Forensic Uses

The momentum is growing, spurred in part by the public's education from the Simpson trial, for DNA testing in criminal cases. Juries may begin to question cases where the prosecutor does not offer "conclusive" DNA test results if the evidence is available for testing. More defense attorneys in court-appointed cases may file motions for DNA testing and request the State to pay for the tests (this issue may also be raised as a Brady motion for the prosecutor to conduct the tests).

The shift will be for more DNA testing in pretrial stages. Prosecutors should find that DNA testing is as helpful to them as to the defense in excluding suspects early in the investigation. This will enable the police and prosecution to save money in the long run by focusing investigations in more fruitful directions.

In Britain, mass DNA screening in search of suspects has, in recent years, produced arrests in several highly publicized cases. The most recent case involved the rape-murder of a 15-year-old South Wales girl.19 The South Wales constabulary obtained saliva swab samples from over 2,000 men who lived in the vicinity of the murder. Police went door-to-door inviting men to a makeshift laboratory to submit the samples. The saliva samples were used to develop DNA profiles to compare to the DNA profile obtained from the assailant's semen.

British law does not permit compulsory sampling, but the police made it clear that anyone who refused would become the subject of intense police investigation. A 19-year-old resident of the victim's neighborhood was arrested when his saliva sample was the only one of the thousands taken that could not be eliminated.

Such DNA dragnet methods, while employed sparingly in Great Britain, may increase as the ease and affordability of DNA testing improves. It is unlikely that such mass-testing methods would gain favor in the United States. Constitutional protections against self-incrimination and unreasonable searches and seizures, as well as the American public's zealous protection of privacy rights, would preclude such DNA dragnet practices from being implemented in this country.

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Notes

1. This report does not discuss the issue of government misconduct because it is not particularized to the use of DNA technology. Beyond the limited instances noted in this report, enough examples of government misconduct in the criminal justice system exist in the popular media for government officials to be well aware of the problem.

2. Commonwealth v. Brison, 618 A.2d 420, 425 (Pa. Super. 1992).

3. Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (factors include accuracy of the witness' prior description of the defendant, opportunity to view the defendant at the time of the crime, level of certainty demonstrated, witness' degree of attention, and time between the crime and the confrontation).

4. Loftus, Elizabeth, and D. Fishman, "Expert Psychological Testimony on Eyewitness Identification," Law and Psychology Review, 4 (1978):87-103 (lack of reliability on cross-racial identification); Loftus, Elizabeth, and W. Wagenaar, "Ten Cases of Eyewitness Identification: Logical and Procedural Problems," Journal of Criminal Justice, 18 (1990):291-319 (witnesses can be induced to point to the suspect after subtle suggestion on the part of the investigator); and Cutler, Brian, et al., "The Reliability of Eyewitness Identification: The Role of System and Estimator Variables," Law and Human Behavior, 11, 3 (1987):233-258 (level of stress experienced during crime may affect identification).

5. "DNA Testing Turns a Corner as Forensic Tool," Law Enforcement News (October 15, 1995):10.

6. Loftus, Elizabeth, and N. Schneider, "Judicial Reactions to Expert Testimony Concerning Eyewitness Reliability," UMKC Law Review, 56, 1 (1987):1-45; and Handberg, Roger, "Expert Testimony on Eyewitness Identification: A New Pair of Glasses for the Jury," American Criminal Law Review, 32, 4 (Summer 1995):1013-1064.

7. Williamson v. Reynolds, 904 F. Supp. 1529 (E.D. Okl. 1995).

8. Id., at 1558. The National Research Council report, DNA Technology in Forensic Science, notes that, in contrast to microscopic hair comparison, with the advent of DNA technology, the use of hair as an individual identifier will become more common. National Research Council, National Academy of Sciences, DNA Technology in Forensic Science, Washington, D.C.: National Academy Press, 1992:158.

9. DNA Technology in Forensic Science, supra note 8, at 145-146.

10. Id., at 16. In its 1996 DNA report, The Evaluation of Forensic DNA Technology (National Academy Press, Washington, D.C.), the National Research Council reaffirmed this position (page 3.12). The DNA Identification Act of 1994 (Public Law 103-322) also provides for a DNA advisory board to set standards for DNA testing.

11. Telephone conversation with Manuel Valdez, treasurer, American Society of Crime Laboratory Directors, March 8, 1996. (More than 100 public laboratories perform DNA tests.)

12. See "Oops! We Forgot to Put It in the Refrigerator: DNA Identification and the State's Duty to Preserve Evidence," The John Marshall Law Review, 25 (1992):809-836.

13. Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988). The Supreme Court also stated that "police do not have a constitutional duty to perform any particular tests."

14. Supra note 9 at 160.

15. Virginia Supreme Court Rules, Rule 3A: 15(b).

16. An Oregon judge recently released Laverne Pavlinac and John Sosnovske from prison, where they had served 5 years after being convicted of murdering a young woman. The judge set aside their convictions because Keith Hunter Jesperson, a convicted serial killer, pleaded guilty to the murder for which the couple was convicted. See The New York Times, November 28, 1995:28.

17. Tuffiash v. State, 878 S.W. 2d 197 (Tex. App. 1994). This case involved perjured trial testimony from Fred Zain, the State's forensic serologist.

18. See State v. Thomas, 586 A. 2d 250 (N.J. Appl. Div. 1991); and Commonwealth v. Brison, 618 A. 2d 420 (Pa. Super. 1992). Compare to People v. Buxon, 593 N.Y.S. 2d 87 (App. Div. 1993).

19. "Crime-Solving by DNA Dragnet," The Washington Post (February 2, 1996):A21.

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CHAPTER IV: Profiles of DNA Exculpatory Cases

Presented alphabetically, each profile of the 28 DNA exculpatory cases identified by the study consists of a brief summary of the facts of the case, key prosecution evidence admitted during trial, postconviction challenges, DNA testing results, and case conclusion.

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Gilbert Alejandro (Uvalde County, Texas)

Factual background. On the evening of April 27, 1990, a woman in her fifties came home and was attacked from behind by a man. The man placed a pillow over her head and sexually assaulted her. He then fled the house. The woman could not describe the man except for basic physical size. She also noted that the man was wearing some kind of cap, a gray T-shirt, and dark-colored shorts. The police canvassed the area and questioned three men, one of whom was wearing clothes matching the victim's description. The police did not detain them. The victim picked out Alejandro from his photograph in a mug book.

In October 1990 Gilbert Alejandro was convicted of aggravated sexual assault by a Uvalde County jury. He was sentenced to 12 years in prison.

Prosecutor's evidence at trial. The prosecution based its case on several points:

o The victim identified Alejandro from a police mug shot.

o The victim identified Alejandro in court (although she stated that she had a pillow over her head during the assault).

o Fred Zain, the chief forensic expert for Bexar County, Texas, testified that a DNA test of Alejandro's sample matched DNA found on the victim's clothing "and could only have originated from him [Alejandro]."

o Alejandro's only alibi was from his mother, who testified that he was at home at the time of the assault.

Postconviction challenges. Bexar County performed the forensic laboratory work in this case for the Uvalde County prosecutor's office. Bexar County discovered that the State's forensic expert in this case, Fred Zain (see also the Gerald Wayne Davis, William O'Dell Harris, and Glen Woodall cases), had falsified results and lied about his credentials when he was employed as a State police serologist in West Virginia. When Alejandro's lawyers were informed of this, they filed a writ of habeas corpus. At this time, Alejandro was released to his parents and placed on electronic monitoring.

On July 26, 1994, a Uvalde County District Court heard Alejandro's petition. Present at this hearing were an original trial juror, the original jury foreman, and a Bexar County forensic DNA analyst. The two jurors testified that they based their guilty verdict solely on Zain's testimony and without his testimony the jury would have acquitted on the basis of reasonable doubt. The DNA analyst testified that results from at least one other DNA test had excluded Alejandro. He also testified that the test to which Zain testified was inconclusive and could not have been the basis of a conviction.

DNA results. In July 1990 the original DNA tests done in this case -- the ones Zain testified were inculpatory -- were inconclusive. A Restriction Fragment Length Polymorphism (RFLP) test performed by the Bexar County crime laboratory on October 3, 1990, excluded Alejandro as the source of the semen left on the victim's nightgown. The district court also reported that an additional test was done on December 19, 1990, after the trial, and it too excluded Alejandro. According to the district court's findings of fact, Fred Zain knew of these exculpatory results and failed to report them to anyone.

Conclusion. As a result of the findings of fact by the district court, the court of criminal appeals overturned Alejandro's conviction and released him to stand trial again without Zain's testimony. The district attorney, however, declined to prosecute the case. On September 21, 1994, Alejandro was released from electronic monitoring and all charges were dismissed. Alejandro served 4 years of his sentence. On June 27, 1995, he was awarded $250,000 in a civil suit against Bexar County.

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Kirk Bloodsworth (Baltimore, Maryland)

Factual background. On July 25, 1984, a 9-year-old girl was found dead in a wooded area. She had been beaten with a rock, sexually assaulted, and strangled.

Kirk Bloodsworth was convicted on March 8, 1985, of sexual assault, rape, and first-degree premeditated murder. A Baltimore County judge sentenced Bloodsworth to death.

Prosecutor's evidence at trial. The prosecution based its case on several points:

o An anonymous caller tipped police that Bloodsworth had been seen with the girl earlier in the day.

o A witness identified Bloodsworth from a police sketch compiled by five witnesses.

o The five witnesses testified that they had seen Bloodsworth with the little girl.

o Bloodsworth had told acquaintances he had done something "terrible" that day that would affect his marriage.

o In his first police interrogation, Bloodsworth mentioned a "bloody rock," even though no weapons were known of at the time.

o Testimony was given that a shoe impression found near the victim's body was made by a shoe that matched Bloodsworth's size.

Postconviction challenges. In 1986 Bloodsworth's attorney filed an appeal contending the following: Bloodsworth mentioned the bloody rock because the police had one on the table next to him while they interrogated him; the terrible thing mentioned to friends was that he had failed to buy his wife a taco salad as he had promised; and police withheld information from defense attorneys relating to the possibility of another suspect.

The Maryland Court of Appeals overturned Bloodsworth's conviction in July 1986 because of the withheld information. He was retried, and a jury convicted him a second time. This time Bloodsworth was sentenced to two consecutive life terms.

After an appeal of the second conviction was denied, Bloodsworth's lawyer moved to have the evidence released for more sophisticated testing than was available at the time of trial. The prosecution agreed, and in April 1992 the victim's panties and shorts, a stick found near the murder scene, reference blood samples from Bloodsworth and the victim, and an autopsy slide were sent to Forensic Science Associates (FSA) for Polymerase Chain Reaction (PCR) testing.

DNA results. The FSA report, issued on May 17, 1993, stated that semen on the autopsy slide was insufficient for testing. It also stated that a small semen stain had been found on the panties.

The report indicated that the majority of DNA associated with the epithelial fraction had the same genotype as the semen due to the low level of epithelial cells present in the stain. It was an expected result, according to the report. Finally, the report concluded that Bloodsworth's DNA did not match any of the evidence received for testing. FSA did, however, request a fresh sample of Bloodsworth's blood for retesting in accord with questions about proper labeling on the original sample.

On June 3, 1993, FSA issued a second report that stated its findings regarding Bloodsworth's DNA were replicated and that he could not be responsible for the stain on the victim's underwear (see appendix for complete results).

Conclusion. On June 25, 1993, the FBI conducted its own test of the evidence and discovered the same results as FSA. In Maryland, new evidence can be presented no later than 1 year after the final appeal. Prosecutors joined a petition with Bloodsworth's attorneys to grant Bloodsworth a pardon. A Baltimore County circuit judge ordered Bloodsworth released from prison on June 28, 1993. Maryland's governor pardoned Bloodsworth in December 1993. Bloodsworth served almost 9 years of the second sentence, including 2 years on death row.

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Mark Diaz Bravo (Los Angeles County, California)

Factual background. On February 20, 1990, a patient at the psychiatric hospital where Bravo worked claimed she had been raped in an alcove earlier that afternoon. During the course of police interviews, she named several different people as her assailant. One of those she named was Bravo. She later stated she was sure Bravo was the attacker.

A Los Angeles County jury found Mark Diaz Bravo guilty of rape in 1990. He was sentenced by the court to a prison term of 8 years.

Prosecutor's evidence at trial. The prosecution based its case on several points:

o The victim named Bravo as the assailant and made an in-court identification.

o Bravo had misrepresented himself in the past on applications and on his business card.

o Blood tests done on a blanket near the crime scene showed a blood type consistent with Bravo's blood type, which is found in only 3 percent of the population.

o Bravo's alibi defense was not aggressively pursued.

Postconviction challenges. Bravo's appeal to the intermediate court of appeals was denied. Before his appeal was decided in 1992, he filed a postconviction motion in the Superior Court of Los Angeles County. In 1993 a superior court judge granted Bravo's motion to release a blanket, a sheet, and a pair of panties to the defense for DNA testing.

DNA results. Prosecutors received a report from Cellmark Diagnostics on December 24, 1993, stating that none of the tested semen had DNA that matched Bravo's.

Conclusion. On January 4, 1994, Bravo's lawyer filed a writ of habeas corpus. A Los Angeles County Superior Court judge ordered Bravo to be released on January 6, 1994. The judge stated that Bravo had not received a fair trial, that the victim had recanted her testimony, that Bravo's alibi was unimpeachable, and that the DNA tests were irrefutable. On January 7, 1994, Bravo was released from prison after serving 3 years of his sentence.

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Dale Brison (Chester County, Pennsylvania)

Factual background. On the evening of July 14, 1990, the victim was walking from a convenience store to her home when an assailant came from behind her, put one hand on her throat and one on her waist, and forced her to walk with him. The assailant stabbed her in the side as they walked, and the victim lost consciousness. When she awoke, the assailant was walking her to some bushes near an apartment complex. The assailant then repeatedly assaulted the victim sexually.

In a jury trial before the Chester County Court of Common Pleas, Dale Brison was convicted of rape, kidnaping, aggravated assault, carrying a prohibited offensive weapon, and three counts of involuntary deviate sexual intercourse. Brison was sentenced to 18 to 42 years of imprisonment. His term was 8 to 20 years for rape and 4 to 10 years for assault, to be served consecutively. He also received 6 to 12 years for each of the involuntary deviate sexual intercourse convictions (although each of these was to run concurrently, they were to be served consecutively with the other sentences). Brison sought DNA testing during the trial, but his request was denied.

Prosecutor's evidence at trial. The prosecution based its case on several points:

o There were two separate victim identifications of Brison near the victim's apartment building.

o A hair sample from the scene of the crime was consistent with Brison's.

o Brison's alibi, sleeping on the couch of his home, was corroborated only by his mother.

Postconviction challenges. In 1992 the Pennsylvania Superior Court ruled (618 A.2d 420) that DNA testing must be performed if the evidence had been maintained and the semen stain from the victim's underwear was not badly degraded. It also ruled that the burden of the cost of this test was upon the Commonwealth.

DNA results. Cellmark Diagnostics reported that no result was discernible from the vaginal swab, but the semen stain from the victim's panties yielded results that exculpated Brison as the assailant.

Conclusion. After the tests were performed, the district attorney's office conducted its own. Results matched those of the first one, and Brison was freed after serving 3 « years of his sentence.

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Ronnie Bullock (Chicago, Illinois)

Factual background. On March 18, 1983, a 9-year-old girl was walking to school when a man dressed like a police officer approached her. He then chased the girl, forced her into a car, drove to a nearby alley, and raped her. On April 18, 1983, in the same area, a 12-year-old girl reported that a man displaying a badge chased her, forced her into a car, drove to an alley, and raped her.

Bullock was charged in both incidents, but charges stemming from the second were dropped. Ronnie Bullock was convicted of aggravated criminal sexual assault by a Cook County jury in May 1984. A judge sentenced Bullock to 60 years in prison for deviate sexual assault and 15 concurrent years for aggravated kidnaping.

Prosecutor's evidence at trial. The prosecution based its case on several points:

o A police officer identified Bullock from a composite sketch compiled by the two victims.

o Both victims identified Bullock in a police lineup.

o Bullock lived in the area where the rapes occurred.

Postconviction challenges. Immediately following Bullock's conviction, he insisted that the evidence be impounded. This motion was approved, and the judge ordered that the victim's panties be stored in the circuit court clerk's office freezer. An appeals court upheld Bullock's conviction in March 1987. Bullock also filed a motion for postconviction relief, which was denied in October 1990. He then submitted a motion in 1993 to have the evidence released for DNA tests. The prosecution agreed to this motion; it was granted in June 1993. There was a delay, however, between the granting of the motion and Cellmark Diagnostics' test because some of the evidence (including the victim's panties) had disappeared. Bullock's attorneys eventually found the materials and sent them to Cellmark Diagnostics.

DNA results. The report from Cellmark Diagnostics, completed in October 1994, stated that PCR testing was performed on a sperm and nonsperm fraction of the victim's panties, a rectal swab, the blood of the victim, and the blood of Bullock. No conclusions could be reached from the rectal swab due to an insufficient quantity of human DNA. The report stated that Bullock was excluded as the source of both the sperm and the nonsperm fractions in the semen stain on the victim's panties (see appendix for complete results).

Conclusion. On October 14, 1994, Bullock was released without bond but ordered to remain confined to his parents' house on electronic monitoring. The prosecution wanted to run its own tests on the panties, so a hearing was scheduled for November 23, 1994. When the Cook County laboratory arrived at the same conclus