Los Angeles Criminal Defense: Independent DNA Testing Before Jury Trial

Posted on: February 8, 2009 at 3:39 p.m.

Aggressive work by L.A. criminal defense lawyers is needed in every single case. In Los Angeles, the prosecution relies heavily on DNA evidence and testimony to support charges of murder, rape, domestic violence, and burglary. This DNA evidence may be faulty, and thus an aggressive defense approach to challenging it is required. Our Los Angeles criminal defense law firm employs an independent DNA facility to re-examine and evaluate the prosecutor's results, BEFORE the case goes to the jury. Often, without an independent critical analysis of DNA evidence, the wrong person may end up in prison for a crime he or she did not commut.

A recent review of DNA testing in the United States revealed what most criminal defense attorneys fear the most - improper scientific protocol being used by the police, leading to the conviction and imprisonment of innocent people. Both American and British authorities are relying more and more on DNA evidence, but insufficient safeguards are in place. Criminal defense attorneys mustlitigate DNA evidencein court, to prevent a rush to judgement about a client's guilt -and must insist that the evidence has been independently reviewed by another testing facility beforehand.

Further, there is no way to determine whether the specimen in trial (cigarette butt, clothing, weapons, or other physical evidence recovered by police) was somehow tainted with the Defendant's DNA by testing facility. The question becomes at trial - did the police have the Defendant's DNA nearby for another reason ( a prior DNA sample pursuant to an arrest), when it came in contact with physical evidence recovered by the police.

In 2004, a New Jersey prosecutor announced that DNA had solved the mystery of who killed Jane Durrua, an eighth-grader who was raped, beaten and strangled 36 years earlier."Through DNA, we put a face to the killer of Jane Durrua, and that face belongs to Jerry Bellamy," prosecutor John Kaye said. The killer, however, turned out to be someone else.Two years after Bellamy's arrest, investigators discovered that evidence from the murder scene had been contaminated by DNA from Bellamy, whose genetic sample was being tested at the same lab in an unrelated case. He was freed. Another man ultimately was arrested in the killing but died before trial.DNA has proved itself by far the most effective and reliable forensic science. Over the last two decades, it has solved crimes once thought unsolvable, brought elusive murderers and rapists to justice years after their misdeeds and exonerated the innocent. In courtrooms and in the popular imagination, it is often seen as unassailable.

But as the nation rushes to take advantage of DNA's powers, it is becoming clear that genetic sleuthing also has significant limitations:

* Although best known for clearing the wrongfully convicted, DNA evidence has on occasion linked innocent people to crimes. In the lab, it can be contaminated or mislabeled; samples can be switched. In the courtroom, its significance has often been overstated by lawyers or misunderstood by jurors.

* The rush to collect DNA and build databases has in some cases overwhelmed the ability of investigators to process the evidence and follow up on promising leads. Some crime labs have huge backlogs of untested evidence, including thousands of rape evidence kits. In some cases, criminals who could have been caught have offended again.

* Debates have flared over civil rights and privacy, presaging possible constitutional challenges to DNA collection and storage. Critics object, for instance, to storing DNA from people arrested but not convicted of crimes and from suspected illegal immigrants.

In Britain, which has the world's most aggressive approach to forensic DNA, a legal backlash has already begun. The European High Court of Human Rights ruled this month that the country's indefinite storage of DNA from people merely arrested for crimes violated privacy rights. Britain has until March to submit plans for destroying samples or to make a case for keeping them.

In the U.S., authorities are plunging ahead with a dramatic databank expansion.A California initiative passed in 2004 will permit authorities, starting in January, to store DNA from anyone arrested on suspicion of felonies and serious misdemeanors, even if they are not ultimately convicted.California's database is expected to swell by about 300,000 DNA profiles next year, bringing the total to 1.4 million.The FBI's national database, which already contains 6.4 million profiles, is projected to add about 1.3 million annually from federal arrestees and illegal immigrants alone.

When the California law, Proposition 69, passed, it was widely believed that the innocent had nothing to fear from having their genetic profiles in a database, said UC Irvine criminology professor William Thompson, considered the U.S. leading authority on DNA laboratory error.Now, he said, "when you look at all the errors that have come to light around the world -- and we're only finding the tip of the iceberg -- it really raises concerns about how many people you want to have in a database. There are certainly doubts in my mind whether I would want to be in one."

A local L.A. paper obtained documents from five state-run and three county forensic labs reporting scores of laboratory errors or "unexpected" resultsover a five-year period ending in 2007. Labs must track these outcomes and keep them on file under state and federal rules. An expert reviewed the results and concluded that "on a regular basis, laboratory personnel make mistakes that could lead to false identifications" of suspects. The records show, for instance, that between 2003 and 2007, the Santa Clara County district attorney's crime laboratory caught 14 instances in which evidence samples were contaminated with staff members' DNA, three in which samples were contaminated by an unknown person and six in which DNA from one case contaminated samples from another.

The records also revealed three instances in which DNA samples were accidentally switched, one in which analysts reported incorrect results and three mistakes in computing the statistics used in court to describe the rarity of a DNA profile. The number reported was small considering overall caseload -- 3,100 over five years -- but the expert said mistakes caught by labs "undoubtedly" make up a small fraction of errors. (In fact, he said, labs that report the most are probably better run than those that claim none.)

The leading cause of false DNA database matches is cross-contamination of samples,theexpertsaid. An incident in a state-run lab in Sacramento illustrated how easily this can happen: DNA discovered on a cigarette matched the profile of a sexual assault victim from another case. Had the assault victim smoked the cigarette? No. Cross-contamination occurred when the sample from the cigarette was processed close to the victim's vaginal sample.The risk of DNA contamination has "greatly increased" as scientists have learned how to obtain DNA profiles from a billionth of a gram of genetic material, according to a report last year by the Nuffield Council on Bioethics in London, a group that examines developments in biology and medicine.

"The results may therefore be misleading, and yet they could be presented as powerful evidence in a courtroom. This makes it vital that defendants are not convicted on a DNA match alone," the report said.

Jonathan Jay Koehler, a professor at Arizona State University who has studied lab error, estimated the rate of false DNA matches at about 1 in 1,000, whether they are caught or missed."No one would ride on an airline that crashed one out of every 1,000 flights," he said.

Wrongful incriminations from DNA evidence have pierced the science's image of infallibility and our criminal justicy system must be on guard on improper evidence being introduced to juries.

Tagged as: california criminal laws, police misconduct

Kestenbaum Eisner & Gorin LLP has been recognized as one of the best U.S. law firms, based on the experience, professionalism, and ethics of its criminal defense lawyers and attorneys. We aggressively defend clients in all Southern California courtrooms on state and federal charges, including DUI, DMV, misdemeanor, felony, juvenile cases, in the following communities and courthouses.

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