Chapter 1:

The DNA Wars: Science Meets the Law

The publication of this book coincides with the beginning of the trial of the century. The People of California versus Orenthal James Simpson combines the celebrity and media circus aspects of the Lindbergh kidnapping case with the science under attack scenario of the Scopes Monkey trial over the teaching of evolution in Tennessee public schools. The celebrity element in the Simpson case is especially fascinating because it involves the suspect instead of the victim. There has never been any trial in history that cuts across as many issues. It covers sex and gender, fame and the media, public opinion and the jury system, race and violence, entertainment and commercialization, even of murder.

Before the start of the actual trial, Simpson's lawyers are putting DNA testing on trial. If DNA loses everyone loses, because forensic DNA testing is such a revolutionary improvement to fairness in the criminal justice system. Every year hundreds of thousands of DNA tests are performed in both forensic and paternity cases. These replace older, often uncertain, testing methods, or help to solve cases where other testing would not have been possible.

Despite the proven value of DNA testing, its reception by the courts can be characterized by the ebb and flow of an ongoing war between prosecutors and defense attorneys and their DNA experts. The blame for this war lies partly with the laboratories which developed and introduced the testing, partly with the contentious and fragmented nature of our legal system, and partly with inaccurate media coverage. The DNA showdown in the Simpson case could be the last major battle in the DNA war or it could be just another skirmish in this expensive and senseless war fought with academic trivia and specious arguments.

Both sides have experienced DNA lawyers to argue their positions and a stable of veteran expert witnesses. Even as the adversaries prepare for battle, the battlefield is shifting with almost weekly court decisions and scientific events that impact the testimony and arguments. It is certain that the pre-trial evidentiary hearing will go on for weeks as both sides commit all their forces to persuading Judge Lance Ito to rule in their favor.

In the Beginning

The forensic use of DNA started with the work of Alec Jeffreys, a geneticist at the University of Leicester in Britain's Midlands. In 1984, Jeffreys invented the techniques that took human identification from the laboratory to the courtroom. With his co-workers, he also demonstrated that forensic samples, dried stains several years old, contained sufficient DNA to yield conclusive results. Jeffreys proved that even small fragments of DNA molecules were virtually unique to individuals. With appropriate dramatic flair, he called the process he invented "DNA fingerprinting," a term most forensic scientists dislike because it is confusing and can be misleading.

The "fingerprint" produced by the test bears a superficial resem- blance to a supermar-ket bar code with the differences between indi- viduals revealed by the spacing between the 15 or 20 lines called bands. The differences between specimens are measured by a process called Restriction Fragment Length Polymorphism (RFLP) analysis.

Jeffreys' new form of genetic typing and the law were linked from the beginning. He sought high-profile forensic tests for his brainchild. First, he applied it to an immigration case. A boy from Ghana sought to emigrate to Britain, claiming that his mother was already a resident. Conventional blood tests were not conclusive beyond confirming that the two could be related. DNA analysis showed beyond reasonable doubt that the relationship was as claimed, and the Home Office put its stamp of approval on the new technology.

Finding the Pitchfork in the Haystack

A detective in the East Midlands read of the case and sought Jeffreys' help in solving the vicious murder and rape of two British schoolgirls. The police held a prime suspect in the case, a kitchen porter at an insane asylum who had confessed to one of the murders. They brought Jeffreys semen samples from the murder scenes and a blood sample from the suspect. Jeffreys confirmed that the same person committed both crimes but it was not the suspect the police held. On November 21, 1986, the kitchen porter became the first person in the world to have his innocence proven by DNA testing.

Both the police and villagers in the area felt strongly that the killer was someone in their midst. Police were prompted to try something entirely new. All male residents between the ages of 17 and 34 were asked to voluntarily submit a blood sample. Within a month, a thousand men had been "blooded." By May 1987 the number had risen to more than 3,600. Summer turned to Fall, it seemed that this experiment was destined to be as unproductive as the previous, more conventional efforts.

Then the police received an unexpected tip. A bakery manager chatting in a pub with some of her employees learned that one of their colleagues, Colin Pitchfork, had convinced another baker to be blooded in his stead. After four long years and the disappointment of the porter's false confession, the detectives felt this was the break they were looking for. They went to Pitchfork's home and moments after arresting him, he confessed. He became the 4,583rd and last man to be tested in the hunt for the Midlands killer. His sample provided a perfect match to the sperm taken from his two young victims. It was September of 1987 and forensic DNA was on its way.

Commercial Development in the United States

It also was in 1987 that the British firm of Cellmark Diagnostics opened a branch in Germantown, Maryland and introduced Jeffreys' methods in the United States (Cellmark is the private laboratory performing testing for the prosecutor in the Simpson case). The firm is part of Imperial Chemical Industries, a giant British company, which previously established a DNA laboratory in Abingdon, England. When Cellmark set up its operation in this country, it had only one other competitor, Lifecodes Corporation of Valhalla, New York. Founded in 1982, Lifecodes began forensic DNA testing in 1987 and took the lion's share of the market early.

Lifecodes performed the tests in the first case in the United States in which a criminal was identified by DNA. The trial of accused rapist Tommy Lee Andrews began in Orlando, Florida on November 3, 1987. A scientist from Lifecodes and a M.I.T. biologist testified that semen from the victim matched Andrews' DNA, and that Andrews' print would be found in only 1 in 10 billion individuals. On November 6, 1987, the jury returned a guilty verdict and Andrews was subsequently sentenced to 22 years in prison.

This case was heavily reported by the press, creating a media blitz favor- able to the new technology. Defense attorneys were caught off guard by the technology and largely accepted it without question. Other cases quickly followed with the same result. Judges and juries were clearly impressed with this new technology.

The introduction of DNA methods to the courtroom by private companies was unique in the history of forensic science. The sharp competition, the proprietary approach of the industry and their desire to keep their products and processes under wraps did not create a favorable environment in which to launch a new technology with such vast potential for changing the criminal justice system. Patent challenges, litigation, and technology-licensing questions became the norm and continue to impede the introduction of technological improvements.

The usual methods of testing new scientific methods are publication and peer review. The requirements for standardization and replication in multiple labs and evaluation of test performance under exacting environmental conditions are of paramount importance in the validation of a forensic test. These did not occur as the commercial laboratories maintained secrecy while rushing to get a return on their substantial investment and start-up costs.

In essence, the major private companies were racing with each other to the courtroom. They hoped to license their procedures and sell their proprietary materials and reagents to as many crime laboratories as they could. They used different tools that produced incompatible results which precluded comparison. As DNA testing became established, some labs were overwhelmed with casework. Systems were not yet in place to ensure quality control, nor had the labs performed sufficient validation studies. They were run like research labs, having been started by academic scientists, not forensic scientists. While the juggernaut of DNA seemed unstoppable, the very speed with which it was moving boded ill.

Rush to Judgment

Case after case involving DNA evidence was won by the prosecution on the basis of testing and testimony provided by Lifecodes and Cellmark. The two companies, while competing for the same business, often joined forces to promote the new technology to the bench, bar, and law enforcement. Their job was made easier by an adulatory press that wrote numerous stories about the miracle technology that fingered criminals with unerring accuracy.

Judges accepted the assertions of industry witnesses at face value and juries were wowed by the big numbers they were offered. In the words of a Massachusetts Supreme Court justice, DNA had acquired an "aura of infallibility." One juror in Queens put it succinctly when he said, "You can't argue with science." Judge Joseph Harris of Albany, N.Y., after sentencing a defendant on a murder and rape charge that hinged on DNA evidence, called it the "single greatest advance in the search for truth since the advent of cross-examination."

The reaction within the defense bar ranged from bemusement to shell shock. One Florida prosecutor commiserated with attorneys representing guilty clients. "If they print your guy with this stuff, you're dead. You can't combat it. There is no defense to it." Defense attorney Robert Brower's assessment was equally unequivocal. He felt that DNA evidence threatened the constitutional right to a fair trial. "In rape cases, when the semen has been matched with the defendant's and the chance that it came from another person is 33 billion to 1, you don't need a jury."

Across the board, the new technology was changing the criminal justice system, and defense attorneys didn't like this development. Of course, they could hope that at least some of the DNA convictions would be reversed on appeal. In the meantime, they were clearly on the defensive as they never had been before.

New York v. Castro: The Chink in the Armor

When police arrived at the Bronx apartment of Jeffrey Otero in February 1987, they discovered a scene of terrible carnage. Vilma Ponce, Otero's seven months pregnant common-law wife, lay on the living room floor, nude from the waist down. She was perforated by more than sixty knife wounds. In the bathroom, police found the body of her two-year-old daughter, Natasha, also repeatedly stabbed.

Police interviewed Jose Castro, the janitor of a neighboring building who fit Otero's description of the suspect. The detective noticed what he thought might be a dried bloodstain on Castro's watch and asked if he could retain it for examination. Shortly thereafter, Castro was arrested and charged with the double murder. The dried blood on Jose Castro's watch and how it was handled led to the first notable courtroom challenge to DNA typing.

Police turned the watch, along with blood samples from Castro and the two victims, over to the Lifecodes Corporation. Scientists analyzed the dried blood and during the 15 week long pre-trial evidentiary hearing, testified that the DNA from the stain matched that of Vilma Ponce, and that the frequency of her patterns in the Hispanic population were 1:189,200,000.

The defense undertook a thorough examination of the genetic analyses and mounted the first extended (and eventually successful) effort to have DNA evidence excluded. What also occurred in the Castro case that contributed to this turn of events was an unprecedented out-of-court meeting between two defense and two prosecution scientific witnesses after they had testified. These scientists all agreed that Lifecodes had failed to use generally accepted scientific techniques in reaching their results matching the blood found on Castro's watch with that of Vilma Ponce. The quality of the data they produced was poor and they did not even follow their own procedures for interpreting the data.

One key player in this drama was Eric Lander, an academician who received his doctorate in mathematics from Oxford University and now directed a genetics research institute at the Massachusetts Institute of Technology. Lander is a powerful personality. Even his friends admit that Lander is arrogant, just as his enemies concede that he is brilliant.

As a result of the testimony of Lander et al, the judge ruled that the inclusionary tests suggesting that Ponce was the source of the blood stain were inadmissible, while allowing the exclusionary evidence that the blood did not come from Castro. After almost one hundred cases where DNA evidence met little or no resistance and never was ruled inadmissible, the defense obtained their first victory. Later that year, in what was to be the anti-climax to the case, Castro confessed to the murders, admitting that the blood on his watch came from Vilma Ponce, and pled guilty.

The FBI and Mounties Ride to the Rescue

Fortunately, the Federal Bureau of Investigation and the Royal Canadian Mounted Police entered the picture at about this time, with a salutary effect. The FBI saw the potential for the forensic use of DNA testing at about the same time that Alec Jeffreys was conducting his breakthrough experiments. Along with the National Institutes of Health, the FBI began collaborative research and in 1987, set up its own research unit to establish DNA identification techniques for the Bureau. After one year of testing, ending in late 1988, the FBI set up their own DNA laboratory at their Pennsylvania Avenue headquarters. The RCMP soon followed with their own DNA laboratory.

The Bureau benefitted from the experience of DNA lab pioneers here and in Europe, and was not locked into a single technology or product. When the FBI lab went on-line, it used a combination of four different DNA probes, including those developed by GeneLex, Dr. Raymond White of the Howard Hughes Medical Center, Lifecodes, and Cellmark. DNA probes and primers are the key patented biochemicals used to identify individual genetic differences.

The main result of the FBI and RCMP beginning their own DNA testing was standardization of a chaotic industry. The Federal agency established detailed laboratory protocols, performed appropriate validation studies, and cut through the competing systems, methods, and tools to establish a standardized system that is used in almost all North American laboratories today. The raising of standards became easier once standardization was achieved.

Defense Bar Strategy

As a result of the evidentiary hearing in the Castro case, the National Association of Criminal Defense Lawyers (NACDL) set up a DNA Task Force in the Fall of 1989. The new group was headed by Castro's (and now O.J. Simpson's) DNA defense team, Barry Scheck, a professor at Benjamin N. Cardozo Law School, and Peter Neufeld, a private attorney in Manhattan. They asserted that the evidence introduced in the Castro case did more than prove that the DNA industry was fallible. They felt it was simply a case of "the emperor having no clothes." As O.J. Simpson's DNA attorneys they will continue their crusade against DNA, having already filed a more than one hundred page motion to exclude all DNA testing evidence from the trial.

Time has shown that Castro provided a needed psychological boost to defense attorneys and cannon fodder for DNA critics, but otherwise had very little effect on the legal system. The prosecution rendered the key opinion of the trial court moot by agreeing that some of the evidence was inadmissible. Since Castro pled guilty, there was no review on appeal. At the time, however, at least to hopeful commentators, Castro looked like a Waterloo for Lifecodes and the prosecutors who depended on the services of that and similar labs The task force announced that its first effort would be to try to reopen all convictions involving evidence tested by Lifecodes. Neufeld even suggested that the thousands of court orders in paternity suits decided by DNA testing also were of questionable validity because of the signal victory in Castro.

While this wholesale repudiation of DNA testing has remained an unrealized dream, NACDL's DNA task force has been a large factor in the DNA war, by leveling the playing field, escalating the conflict, and keeping the conflict alive against all odds. Part of their catching up with the competition consisted of taking the offensive and mounting a public relations campaign. Some of the press printed new articles which were as critical of DNA typing as previous accounts had been enthusiastic.

United States v. Yee

In the Spring of 1990, Scheck and Neufeld began to prepare for a trial in Ohio, United States vs. Yee, that would be a rigorous judicial inquiry into the soundness of DNA testing.

Three members of the Cleveland chapter of the Hell's Angels motorcycle gang, Steven Yee, Mark Verdi, and John Bonds, were accused of killing David Hartlaub of Sandusky, Ohio. The defendants allegedly killed Hartlaub because they mistakenly thought him to be a member of the rival Outlaw's Motorcycle Club, with whom they were having a turf war. The victim was shot fourteen times with a silenced MAC 10 machine gun inside his own van.

Most of the blood was later determined to be Hartlaub's, but blood typing tests revealed that some was not. Detectives theorized that a ricocheting bullet had hit one of the suspects. DNA analysis by the FBI showed a match between blood from the van, from Yee's car, and from John Bonds. It was this evidence that the defense planned to challenge.

In a way, Castro was a dress rehearsal for Yee. Many of the rising stars in the DNA constellation appeared as witnesses for one side or the other at the June 1990 hearing in Toledo before U.S. Magistrate James Carr. The prosecutor called six witnesses; including Thomas Caskey of the Baylor College of Medicine, who had just finished serving as head of a panel that examined forensic DNA for the Congressional Office of Technology Assessment; Kenneth Kidd, a Yale geneticist; and Bruce Budowle, the FBI's main DNA scientist. The defense had five experts including Richard Lewontin, and Daniel Hartl, geneticists at Harvard and Washington University, respectively. The court called Eric Lander, the M.I.T. mathematician-turned-geneticist who had testified in Castro.

The defense launched a full-scale attack on the FBI and its work. They claimed that the Bureau's published articles on its matching criteria were ambiguous or inconsistent and sought access to the supporting data. The prosecutor fought the motion for discovery, but the court granted the defense access to these materials. The experts pored over the data and had a field day, citing what they claimed to be errors, omissions, lack of controls, and faulty analysis.

James Wooley, the federal prosecutor, countered the criticism by reiterating two telling points. First, regardless of disputes over match criteria, the multi-probe match produced by the FBI was highly unlikely if specimens came from two different people. Hence the chance of an innocent person being incriminated was virtually nil. Second, (and the court noted that there were "troublesome questions about the quality of the Bureau's work"), whatever deficiencies existed went to the weight not the admissibility of the evidence. The magistrate concurred and the DNA matches were admitted. They also were admitted at the homicide trial in state court and passed muster on appeal.

Barry Scheck considered the Yee case to be far more significant than Castro to the defense bar. The documents procured from the FBI and others through the discovery process were to find their way into many courtrooms throughout the land. While they had lost the battle at Toledo, Scheck, Neufeld, and their cohorts had seized reams of ammunition and gained new recruits for the many battles that lay ahead.

Good Intentions Backfire: The NRC Report

Just after the Congressional Office of Technology Assessment published a report recommending the continued use of forensic DNA in 1989, a second federal study was initiated in response to "a crescendo of questions." Funding was procured for a more definitive study of the problems, this time by the National Academy of Science's National Research Council (NRC). One of the deans of American genetics, Victor McKusick, was picked to chair the fourteen person panel. They began their work in January 1990.

From the beginning, the courtroom battles over DNA were refought in the National Academy of Sciences committee rooms, and with nearly the same ferocity. The most contentious issue was the matter of how to calculate statistical probability, the odds that a match between DNA found at the crime crime and DNA taken from the suspect could be the result of coincidence. To find a match, crime labs look at several sites where the DNA is known to vary. If these sites match, there is an extremely high probability that the samples came from the same person. To quantify these findings, investigators calculate the frequency with which each variation occurs in the suspect's population group. The frequencies for each site are then multiplied together to arrive at a figure for the complete DNA profile. Databases of DNA profiles for various populations have been gathered for use in making these calculations.

To some population geneticists, there's the rub. Friction over this point provided the spark that was fanned by the theory of the two geneticists, Richard Lewontin and Daniel Hartl. They maintained that the frequencies of genetic markers in sub-groups could differ widely from the frequencies found in larger population groups. If this is so, then any estimates calculated using the widely accepted FBI match-binning methods could be considerably wide of the mark. Proponents of this theory insisted that extensive and expensive population studies must be completed before reliable estimates could be introduced into the courtroom, even if this takes a decade or more. While Eric Lander didn't go all the way down this road, he was a fellow traveler enough of the distance to become the champion of extreme caution, representing the extreme view on the panel.

At the other end was Thomas Caskey, then president of the American Society of Human Genetics, an advisor to the FBI, and developer of technology used in DNA analysis. Caskey took the widely predominant view that while population subgroups do exist, current methods of calculation were so conservative that they would compensate for such variations and actually already favored the suspect. While Lewontin and Hartl's ideas might have a legitimate place in academic discussions, the pragmatists argued that they didn't belong in the courtroom because even if they were sound, the chance of a false match was negligible. Nevertheless a compromise was struck and called the interim ceiling principle. It was a clearcut effort to design a standard so biased in favor of the defendant that all sides would accept it.

The committee's report, DNA Technology in Forensic Science, was released in mid-April 1992. It endorsed the continued use of DNA typing in the courts, pushed for standardization, mandatory accreditation and proficiency testing for DNA labs, and called for an expert committee that would provide oversight and advisory assistance. The committee hoped their work might write a finish to the costly pre-trial hearings and inconsistent rulings that were increasingly the result when DNA evidence was introduced.

They didn't have to wait long to be proven wrong. Critics such as Peter Neufeld howled "foul." They claimed there was an inherent bias to the project because it had been largely funded by the Department of Justice, which had a stake in its outcome. They cited the lengthy criticism of the statistics chapter by the FBI as undue pressure. They charged Thomas Caskey, who had resigned from the panel a few months before it released its report, with conflict of interest since he had proprietary interests in DNA technology. But they saved

Chapter 2 >>

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