Should the DNA of those suspected of a criminal offense be taken and retained?

Tues, December 16, 2008

Irish Times-Dublin, Ireland

HEAD TO HEAD DEBATE:Fine Gael justice spokesman Charles Flanagan says Yes, Tanya Ward of the Irish Council for Civil Liberties says No.

YES:

We need a DNA database to serve as a potent aspect of crime prevention , says CHARLES FLANAGAN.

IT WAS Edmond Locard, the Sherlock Holmes of France, who laid down the law that "every contact leaves a trace". He prophetically articulated this ostensibly simple principle long before DNA tracing was possible. He was, nonetheless, quite right.

Every contact leaves a trace, and it is a trace that can be immeasurably important in the vindication of the rights of victims. In this country in the past few years, we have seen people convicted of rapes and murders committed decades ago due to DNA links. Justice delayed, but justice nevertheless.

We need a DNA database that serves, not just to speedily and cost-effectively create links between crimes and criminals, but to serve as a potent aspect of crime prevention. Recent statistics in England and Wales show half of all police detections involved DNA evidence. What Ireland needs is a criminal DNA database that deters as well as detects.

To that end, practical and proven measures must be taken. It is a responsibility, not a choice. Fine Gael is in favour of the introduction of a criminal DNA database as a practical and proven measure to address crime. DNA material is already used on a case-by-case basis, usually successfully, to prove a suspect's innocence or guilt.

The victim should remain at the centre of all investigations and it is negligence not to avail fully of a facility that provides evidence that can drastically increase the likelihood of a conviction. Fine Gael would go further and seek DNA samples from suspects in certain serious crime investigations that could be retained for a period, possibly until a particular crime is solved. Indeed, inferences could be drawn from a refusal to provide such a sample as is the case in the right to silence. The ultimate objective must be to establish a criminal DNA database that is as comprehensive as a fingerprint database, allowing instant cross-referencing when a crime is committed in which DNA traces are identified.

The need for a comprehensive criminal database is reinforced by the fact that, in most European states, police forces have access to a database recording the DNA profile or genetic fingerprint of convicted sex offenders. No similar database exists in this State to assist the Garda in a serious investigation.

The European Court of Human Rights recently ruled that keeping the DNA records of innocent citizens on a criminal register would breach the human rights convention. Although not strictly bound by the rulings of the court, the Government must carefully consider this judgment in advance of drafting legislation on a DNA database and ensure that any proposals are compliant with our Constitution and EU law.

Notwithstanding this recent ruling, there is a growing consensus that there are many benefits to be gained from DNA records.

The Irish Council for Civil Liberties has acknowledged the benefits of DNA technology in crime investigation. It is also essential that the collation of a DNA database would have to be rigorously policed to retain its credibility.

Imagine this: a rape or murder is committed. The Garda establishes a link between DNA left on the body and the genetic fingerprint of a key suspect. The case goes to court, but due to a technicality, does not result in a conviction. The European court says that keeping DNA material in such circumstances would carry "the risk of stigmatisation". How? The public cannot wander into a forensic science laboratory and make negative judgments against the owners of a sample. The consequence of such woolly thinking is that the presumption of innocence that demands the expunging of DNA from the records may grievously interfere with the possibility of its owner being convicted of a future offence. Another consequence is that the knowledge of their own impunity may empower them to commit such a crime.

Of course every citizen is innocent until proven guilty. Every citizen must live their life free of the assumption that they may commit a crime at some future point. But a balance must be struck between the rights of victims and the rights of suspects, and Fine Gael believes that, in recent years, this balance has tilted too far towards the rights of suspects.

Most civilised nations take measures to monitor convicted sex offenders following their release. Why? Because statistics prove the likelihood that a person who has, say, sexually abused a child is likely to do it again. If we apply the civil libertarian argument, we would not electronically tag or require such offenders to report to Garda stations once they'd served their sentence because we cannot presume their intention to commit a crime in the future.

It is essential we use all technological advances when attempting to solve crimes and that we legislate to make video evidence admissible in court as well as the use of overt and covert surveillance where appropriate. DNA databases are an advance we must capitalise on. • Charles Flanagan TD is Fine Gael spokesman on justice.

NO:

Sweeping up the innocent with the guilty does not fight crime, says Tanya Ward.

THE INDEFINITE retention of DNA profiles of people suspected but not convicted of offences is unnecessary and interferes with the right to respect for privacy. Last year, the Government published legislative proposals to establish a DNA database to aid criminal investigations. The Government proposed to retain biological samples from convicted criminals together with DNA from persons arrested but not convicted of a crime. This was apparently inspired by the system in England and Wales, where DNA samples are retained from anyone arrested for a recordable offence. In a new development, the European Court of Human Rights ruled this month that the English and Welsh system was in breach of the right to privacy.

DNA profiling was first developed in the 1980s and scientists soon pioneered techniques enabling them to generate a profile based on unique parts of a person's DNA molecule. DNA profiling is used in criminal investigations to establish the presence of a suspect at a crime scene.

Investigators will usually seek DNA samples from a suspect's bodily fluids or hair and compare them with "stains" from the scene.

DNA has been used to solve some "cold cases", most notably that of Phyllis Murphy, a Kildare woman who was raped and murdered in 1979. John Crerar was convicted of this crime after volunteering for a mass DNA screening of potential suspects in 2001. DNA has also been used to resolve miscarriages of justice. The US-based Innocence Project has relied upon DNA to exonerate over 200 people who have been wrongly accused by proving they were never at the crime scene.

Despite these positive outcomes, there are limits to DNA technology. DNA can rarely be used by itself to convict without other evidence and profiles cannot be developed if a sample is incomplete. Identification can also be difficult if a scene has been contaminated.

The English and Welsh DNA database holds profiles from almost 6 per cent of the jurisdiction's population. Campaigners are critical of this system as DNA is only relevant to a small number of violent crimes and yet the database holds profiles from 850,000 innocent people, including 200,000 children.

Another concern relates to how DNA information could be exploited. Scientists are discovering genes identifying a predisposition to cancer, Alzheimer's and inherited diseases. Imagine how banks and insurers could use this information when deciding to issue mortgages and life insurance.

The English and Welsh laws on DNA retention have been scrutinised by the European Court of Human Rights in the S and Marper judgment. This challenge was taken by "S" who was 12 when he was charged with attempted robbery in 2001, but later cleared.

Michael Marper, also a party to the case, was charged with harassing his partner in 2001 but the case was later dropped when they reconciled. Both men subsequently asked for their fingerprints and DNA profiles to be destroyed, but south Yorkshire police refused and stated the samples would be retained "to aid criminal investigation". The applicants complained to the courts that their right to respect for privacy under Article 8 of the European Convention on Human Rights was breached. They appealed a negative decision from the House of Lords to Strasbourg.

The European court rejects the claim that sweeping up the innocent with the guilty is necessary to fight crime. Distinguishing between the retention of fingerprints and DNA, it notes DNA contains much more sensitive information.

The court contrasted England and Wales to other European countries, including Ireland, where taking DNA information in criminal cases is limited to special circumstances or more serious crimes. The court was also struck by the "blanket and indiscriminate nature" of the power of retention in England and Wales and compared it with Scotland, where samples are retained for three years only in relation to violent or sexual offences.

The UK government argued for the retention of the current system by providing statistics demonstrating matches from profiles of innocent people to specific crimes scenes. While the court accepted the evidence, it questioned whether these matches could have been made through other means or led to higher conviction rates. Nothing is more personal or private than a person's genetic make-up and the court was unconvinced that retaining innocent people's DNA indefinitely was justifiable, or could be regarded as necessary in a democratic society.

The ECHR Act 2003 requires the Government to carry out its functions in a manner compatible with the convention. This means the Government will have to rethink its proposals on indefinite retention of the DNA of innocent people. As the court made clear, innocent people are entitled to be treated differently from convicted people.

• Tanya Ward is deputy director of the Irish Council for Civil Liberties and a PhD candidate at the school of social justice, University College Dublin.

NY settles with wrongly imprisoned man for $2.6M

December 10, 2008

The Associated Press- Auburn, NY

An upstate New York man who was wrongly imprisoned for a 1991 murder has been awarded $2.6 million in a settlement with the state.

The settlement was announced Tuesday ahead of a trial to determine the amount due to 47-year-old Roy Brown of Auburn.

Brown was sentenced to 25 years to life after he was convicted in 1992 of second-degree murder in Sabina Kulakowski's death.

Brown served 15 years before the conviction was overturned in January 2007 after DNA evidence linked another man to the crime.

Brown says some of the money will help cover medical bills from a liver transplant he had last year.

He also says he will use some of the funds to help others who have been wrongly imprisoned.

Troy Davis Seeks New Day In Court

December 8, 2008

WGCL TV-Atlanta, GA

Troy Davis has already been spared from execution three times, and this week his lawyers hope to push his extraordinary case one more step toward his exoneration when they ask a federal panel to let them file another appeal of his death sentence.

As they have argued before, Davis' lawyers will tell the three-judge panel of the 11th Circuit Court of Appeals on Tuesday that their client was the victim of mistaken identity, and note that seven of nine key witnesses that testified against him in the 1991 trial have recanted their statements.

But the hearing likely won't focus entirely on whether Davis was rightly convicted of the 1989 murder of Savannah Police Officer Mark MacPhail. Instead it could turn on whether federal law allows the 40-year-old's attorneys to call for a new trial at all.

Davis' lawyers have struggled to convince a judge at any level to grant him another hearing on claims that he is innocent, partly because much of the evidence they say could lead to his exoneration was revealed after Davis was convicted. The hearing offers them a ripe opportunity to argue that federal laws allow them to pursue such a challenge at this late stage in the process.

In their briefs, Davis' attorneys argue that it is "constitutionally intolerable" to execute Davis without first hearing his innocence claims. They say they could only press the claim that Davis is innocent after they had attempted a range of other appeals.

"It's one of the arguments that can really only be brought after you've exhausted other state avenues of relief," said Jason Ewart, a Davis attorney. "For this claim to be cognizable, you have to show a convincing case of innocence. But one of the issues is whether or not we can bring this case. It's rather nebulous."

Attorneys representing the state say this type of appeal, called a stand-alone innocence claim, could have been made long before Davis' team filed a motion for a new trial in Savannah's Chatham County last year. And they say the courts reviewing the case have already ruled that Davis won't meet high legal standards for a new trial. The hearing will be the latest flashpoint in a case that has attracted widespread attention, sparked dozens of international protests and won Davis the support of former President Jimmy Carter and leading law-and-order advocates who say Davis deserves another day in court.

"Davis is not asking the court to set him free," former FBI Director William S. Sessions wrote in a recent column. "He is asking for the court's permission to give his innocence claims the full hearing they deserve. Our justice system should punish the guilty, free the innocent and have the wisdom to know the difference."

MacPhail was working off-duty as a security guard at a bus station when he rushed to help a homeless man who had been pistol-whipped at a nearby parking lot. The 27-year-old was shot twice when he approached Davis and two other men.

Witnesses identified Davis as the shooter in the 1991 trial, and prosecutors said he wore a "smirk" as he fired the gun. But Davis' lawyers have since argued that new evidence should exonerate their client. And they say three others who did not testify have said another man who testified against Davis at his trial confessed to the killing.

Prosecutors have long argued the case is closed. Savannah District Attorney Spencer Lawton also said he doubts the new testimony meets the legal standards for a new trial, and said the witness recantations invites "a suggestion of manipulation, making it very difficult to believe."

Davis execution was scheduled for July 2007, but it was postponed by Georgia's pardons board less than 24 hours before it was to be carried out. A divided Georgia Supreme Court twice rejected Davis' request for a new trial, and the pardons board turned down another bid for clemency after considering the case again.

As corrections officers prepared for Davis' scheduled Sept. 23 execution, the Supreme Court issued a stay to consider whether to grant him another hearing. A few weeks later, though, the court cleared the way for the execution when it decided against hearing the case.

With legal options dwindling just three days before a third scheduled execution date, Davis' attorneys convinced the 11th Circuit Court of Appeals in Atlanta to stay the execution again. Tuesday's hearing gives them one more chance to press their appeal.

As the case approaches the latest legal hurdle, the Davis and MacPhail families are in limbo.

Davis, who is being held in state prison, longs for another chance to prove he's innocent, said his sister Martina Correia.

"He's gone through a lot in the last year. Having three execution dates in a year is more than most people could bear," she said. "But he's staying faithful, and he's praying that the courts could give him some relief, that they will allow a jury to hear the evidence."

For the MacPhails, the hearing is another painful delay for a family seeking closure for 17 years.

"I don't even know what to expect any more. Every time we think, 'This is it,' something else comes up. I don't know what to expect anymore," said Anneliese MacPhail, the slain officer's 75-year-old mother. "My faith is going down rapidly. This should be over by now."

Wrongful conviction in killing? Review is on

December 5, 2008

St. Louis Post-Dispatch-St. Louis, MO

A man imprisoned since 1994 for the murder of a southeast Missouri college student testified Wednesday he never saw the woman until he was given a copy of her obituary while he was in jail.

Joshua C. Kezer, 33, has maintained his innocence and contends that he was wrongly convicted. He is serving a 60-year prison sentence for second-degree murder and armed criminal action for the 1992 slaying of college student Angela Mischelle Lawless in Benton.

Cole County Judge Richard Callahan is considering whether there was enough evidence to justify Kezer's 1994 conviction in southeastern Missouri. He can order a new trial for Kezer, order him released or keep him prison.

Kezer, who broke down on the witness stand Wednesday when asked about the guilty verdict, said "it felt like the air got sucked out of the room" when the jury announced its decision.

"I didn't know what I had done that would make them want to do this to me," he said.

The case was one of several high-profile prosecutions led by Kenny Hulshof when he worked for the attorney general's office. Hulshof went on to serve six terms in the U.S. House and was the Republican nominee for governor this year, losing to Democratic Attorney General Jay Nixon.

No physical evidence tied Kezer to the crime.

Key prosecution evidence included the trial testimony of Mark Abbott, who claimed he saw Kezer near the Interstate 55 off-ramp where Lawless' body was found. However, in an interview with Scott City police 10 days after Lawless' death, Abbott had identified a different man as being near the crime scene.

Kezer's appellate attorneys say his original defense lawyer was not told about the police report. They also contend that Abbott — a federal inmate for the past decade in Wisconsin on drug convictions — has changed his account at least five times.

Kezer also was implicated by three Cape Girardeau County jail inmates, some of whom received deals for leniency on their own charges. One of those witnesses recanted and testified for the defense at Kezer's trial, while another told Kezer he made up his account, yet still testified for the prosecution.

On Wednesday, several witnesses called by Kezer's attorneys testified that Abbott and others told them that the wrong man was in prison.

The hearing will resume next week.

New York Innocence Project Gains Another Exoneration

November 25, 2008

The Innocence Project-New York, NY

Innocence Project client Steven Barnes was released from prison this morning, nearly two decades after he was wrongfully convicted of rape and murder in Oneida County. New DNA test results support Barnes’ longstanding claim of innocence in the 1985 rape and murder of a high school student for which he was convicted in 1989.

Barnes’ conviction highlights the pressing need for national standards in forensic science, the Innocence Project said. Eyewitness testimony at his trial was shaky, but forensic testimony linked him to the crime. The forensic evidence included testimony that soil on Barnes’ truck tires was similar to soil at the crime scene and testimony that an imprint on the outside of Barnes’ truck matched the fabric pattern on a particular brand of jeans the victim wore when she was killed. Neither soil comparison nor jean pattern imprinting is scientifically valid, and they should not be relied on in court without proper bounds and/or experts testifying for both parties, the Innocence Project said.

The Innocence Project began representing Barnes in 1993 and the Oneida County District Attorney agreed to conduct DNA tests on evidence from the crime scene. Those tests were inconclusive because the DNA technology at the time could not yield a profile. In 2007, the Innocence Project reopened the case, and Oneida County District Attorney Scott McNamara agreed to conduct more advanced DNA testing (not available in the 1990s). New DNA test results on material collected from the victim’s body and clothing do not match Barnes, leading to today’s joint motion to throw out his conviction and release him from custody.

“Unvalidated and exaggerated science convicted Steven Barnes and cost him nearly two decades, but real science finally secured his freedom,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This is the latest in a long line of wrongful convictions based on improper or invalid forensic science that were ultimately overturned through DNA testing. Until there are clear national standards about what kind of forensic science can be allowed in court, more people like Steven Barnes will be wrongfully convicted while the actual perpetrators of violent crime remain at large.”

Although Barnes’ conviction has been vacated and he is free, the indictment against him will not be dismissed (fully exonerating him) until additional investigation is conducted to identify the actual perpetrator(s) in the case. The Innocence Project said it will cooperate with the District Attorney’s Office on that investigation.

“Steven Barnes has a long road ahead to begin rebuilding his life. He will need community support, financial assistance and employment leads,” said Innocence Project Staff Attorney Alba Morales. “Thankfully, his family has been tremendously supportive through this long ordeal, and they are planning a Thanksgiving homecoming that’s been two decades in the making.”

Barnes was 19 years old when 16-year-old Kimberly Simon’s body was found near the Mohawk River in Whitestown, New York. She had been raped and strangled. Four years later, when Barnes was 23 years old, he was tried and convicted for the crime. Eyewitnesses testified that they saw Barnes in town on the evening of the murder, and that they may have seen Barnes and Simon together – but no witnesses could say with certainty that Barnes ever met Simon, let alone that they saw him with her on the night of the murder.

The lack of other evidence put particular weight on the forensic testimony. A criminalist testified that an impression on Barnes’ truck was similar to the fabric pattern and fibers in the jeans the victim wore when she was attacked. She testified that she compared the evidence to other brands of jeans, and determined that they were not similar. The victim wore black Zena brand jeans, which were called “tuxedo jeans” because of their style. Testifying about photos of Zena tuxedo jeans and a slide with the imprint from Barnes’ truck the criminalist testified, “[Y]ou can hold it up to the light and the high contrast will help you to see that the patterns are similar.” Another prosecution witness worked as a salesman for manufacturers, including Zena jeans, and he testified that 24 to 36 pairs of the Zena tuxedo jeans were sold to stores in Oneida County 1985. He claimed that the jeans were “a very unique kind of garment.”

Analysis of jean patterns and comparison of soil have not been tested to determine their scientific validity; as a result, it is impossible to know how many other soil samples might be similar to soil from the crime scene or the likelihood that other jeans have the same pattern (assuming the marks on the truck were from jeans). “Even though these disciplines are not rooted in solid science, they could be used in courtrooms across New York and the country to this day. Much more research is needed to validate the probative value of pattern and impression evidence like bite marks, toolmarks and fabric comparison,” Scheck said. At the request of Congress, the National Academy of Sciences is preparing to release a major report on forensic science nationwide. A blue-ribbon commission has spent 18 months closely examining forensic disciplines that are used in courtrooms nationwide, and the unprecedented report will outline their findings and recommendations for how to ensure that the criminal justice system relies on sound science. Among wrongful convictions overturned through DNA testing nationwide, more than half involved invalid or improper forensic science, according to the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University.

In New York, 23 people have been exonerated through DNA testing, and 10 of those wrongful convictions involved invalid or improper forensic science. In a report released last year, the Innocence Project concluded that New York State leads the nation in wrongful convictions overturned with DNA testing but lags behind other states in enacting policy reforms to make the criminal justice system more fair and effective. The New York State Bar Association Task Force on Wrongful Convictions is studying this issue, and will issue its report to the NYSBA House of Delegates in January. “Steven Barnes’ case is a reminder that wrongful convictions are very much a reality in New York State, and that very few of the reforms that prevent wrongful convictions – and simultaneously help catch real perpetrators – have been implemented in New York,” Scheck said.