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FEAR, LOATHING AND DNA:

LAW ENFORCEMENT'S BLUEPRINT FOR CHANGING THE WORLD

By Paul DeRienzo and Joan Moossy

The vendor booths were buzzing with activity at the American Society of Crime Lab Directors' annual conference in Las Vegas, Nevada last September. The ASCLD represents and accredits police and federal crime labs throughout the United States. Attending were the police forensic experts who use scientific methods to try and solve crimes. There was an interesting array of shiny gadgets on display: a microscope for comparing bullets, glow-in-the-dark crime scene chalk to outline bodies for night photography, and a special light that illuminates nearly invisible footprints. But the buzz really surrounded the booths where companies were hawking the latest technology used to extract identifying genetic markers from samples of blood and body fluids for a process known as DNA fingerprinting.

Myriad Genetic Laboratories' Forensic Programs director Thomas Scholl happily answered questions from a constant stream of scientifically literate police professionals. There's been a "vast improvement" in DNA technology in the past few years he says, allowing samples of the genetic code to be lifted from minute and degraded sources. The result has been the steady buildup of a backlog of thousands of tissue samples in police evidence storage rooms and state database laboratories as the rush is on to collect the DNA of millions of Americans. Scholl and his company aren't shy about making a buck marketing their "ultra-high capacity" DNA analyzing services.

DNA is the basic building block that makes up the genetic material determining each person's heredity and individual identity. DNA or deoxyribonucleic acid can be used like a fingerprint to identify individuals because each person's DNA is different from that of every other person, except for identical twins and bone marrow transplant recipients. That ability, in theory, in theory, to positively identify someone from a sample as small as the saliva on a coffee cup has politicians and law enforcement officials salivating. Attorney General Janet Reno is calling for the DNA fingerprinting of everyone arrested in the United States, potentially as many as 15 million people a year, and New York City Mayor Rudy Giuliani has proposed that a DNA sample be taken from every newborn. Still, 12,000 of the 180,000 unexamined rape kits in US police departments are in New York City. The federal government and each of the 50 states are building an inter-linked computerized DNA database that already has a backlog of one million blood and tissue samples taken from crime scenes and convicted offenders.

Essential to the process is that DNA evidence collected by investigators has to be matched with a sample collected from potential suspects. The FBI's Combined DNA Indexing System or CODIS is a computer database that compares two indexes. When the DNA profile of an individual in the database index matches the profile of DNA collected by police at crime scenes, an arrest can be made. The FBI says that nearly 600 cases have been solved, including a serial rapist in Washington DC who turned out to be a serial rapist in Florida. The International Association of Chiefs of Police is one of the groups calling for the DNA fingerprinting of everyone who is arrested. The organization's president Ronald S. Neubauer, says that DNA fingerprinting is "one of, if not the most, important developments in forensic science in law enforcement."

Milwaukee, Wisconsin assistant district attorney Norm Gahn is a tireless advocate of DNA fingerprinting. Recently Gahn took on a task he admits is "pushing the envelope as far as he can" by filing rape and kidnapping charges against a suspect known only as "John Doe, unknown male with matching deoxyribonucleic acid profile." It's one of very few cases where an unknown suspect has been described only by a DNA profile. Gahn filed charges to beat the statute of limitations, which was to run out in only a few days on the six-year-old crime. We know that one person raped these three women," he says, "we will catch him." But criminals are evidently on the cutting edge of the new technology, too. There are stories of deliberate contamination of the crime scene and convicts exchanging saliva to contaminate buccal samples, the samples obtained by swabbing the inside of the mouth. Mr. Gahn told the story of an incarcerated rapist who sent a semen sample to a friend and convinced her to apply it to her body and report a rape in an effort to discredit his own DNA identification.

The model for the police in the United States is Great Britain, where the use of DNA-based identification has gone much further. British police already have an extensive DNA database that's been functioning since 1995 with the stated goal of including the entire population. The police in Britain have asked and even required entire towns and buildings, thousands of citizens, to give samples in high-profile cases. The British rationale is that DNA only eliminates suspects and narrows the search for a criminal. New York City Police Commissioner Howard Safir agrees "We should be collecting it from everybody," adding that, "the only ones who have anything to worry about from DNA testing are criminals."

New York State has begun one of the nations most ambitious DNA identification programs. Starting in December, half the defendants convicted each year in the state, about 25,000 individuals, will have to give a up a DNA sample. The samples will be stored as a bloodstain on one of thousands of pieces of cardboard kept in refrigerated rooms in the state capital. Until recently, New York, like most states, limited DNA collection to people convicted of sex crimes and a few other violent offenses. New York now joins eight states--Alabama, Maine, Massachusetts, New Mexico, Tennessee, Vermont, Virginia, and Wyoming--that include a wider range of felons. Also New York is one of the few states to do retroactive testing by requiring DNA samples from everyone already in prison, on parole, and on probation for one of the crimes on the list, about 100,000 people. But Police Commissioner Safir isn't satisfied, he says, although the plan "is a good start, it doesn't go far enough."

Law enforcement may have access to many more samples, however, through existing banks of tissue held by other institutions, particularly the medical community. The Center for Disease Control has been collecting tissue samples since 1962 and paternity tests use DNA for identification in custody and child support cases. In 1999, whole blood will have been routinely collected and saved from 99.8% of all newborns, which could be used for DNA testing at any time. In Boston's "nanny case," prosecutor charged British Au Pair Louise Woodward with murdering a baby in her care. The defense was denied a post-mortem tissue sample to test for two genetic diseases whose symptoms mimic child abuse, so defense lawyers got a sample of blood from the hospital where the baby was born. Phillip Reilly, president of the Shriver Center for Mental Retardation at Harvard University, predicts, "I think we'll reach universal DNA databanking for criminal purposes through the backdoor of public health."

The American Civil Liberties Union objects to any expansion in the list of crimes being entered into DNA databases. Norman Siegel, executive director of the New York Civil Liberties Union says, "It is a mistake to equate DNA samples to fingerprints. Fingerprints are representations of the physical attributes of the tips of our fingers; they are used only for identification purposes. DNA is that plus much more." What's more is that DNA not only provides information about identity, but also information about 4,000 different diseases and genetic conditions. According to the ACLU's Ira Glasser more is at stake than personal privacy. As Glasser puts it, "The history of information in this country is that once the government has it, it is usually misused. Census information that took down ethnic background was supposed to be used just for counting, then it ended up being used to round up Japanese-Americans during World War II."

Would Ronald Reagan have been elected president if the voters had known he might develop Alzheimer's disease? The non-profit advocacy group Council for Responsible Genetics has documented hundreds of cases in which healthy people were denied insurance or a job based on genetic predictions. According to the American Management Association, over 6,000 companies already use genetic testing for employment purposes. For researchers, DNA databanks are especially attractive. A law enforcement databank of convicted violent felons is an incredible and potentially irresistible resource for researchers studying the existence of a genetic predisposition to violent behavior. Chief of Police Darrell Sanders of the Frankfort, Illinois Police Department, puts it bluntly, "The potential for what you can find out about people is what scares the hell out of everybody." In a case of two marines who refused to give samples for the US military databank, which has already collected the samples of 2.6 million soldiers, one of the expressed fears was what might be done with those samples in the future. "Most of this sounds like gee whiz scientific stuff right now, " says James Crow, Ph.D., professor of Genetics at the University of Wisconsin at Madison, "but my conviction is that we've always been surprised in the past when new developments start developing. We say that it's going to happen in ten years and it turns out to happen in five."

The legal team that took on the DNA evidence in the O.J. Simpson trial and created the doubt in the minds of jurors, resulting in the acquittal of the fallen football hero, was headed by lawyers Barry Scheck and Peter Neufeld. Another Simpson lawyer, Johnnie Cochran says the two are more "like scientists" than lawyers. Scheck is a professor at Cardoza School of Law in New York City where he runs the Innocence Project that has been using DNA evidence to free wrongly convicted prisoners. According to Cochran, there are at least 48 people who are out of jail, including 12 who were on death row, who have been exonerated by DNA. Scheck adds that the number of convicts exonerated by DNA is "the tip of the iceberg," referring to an FBI study that shows that since 1989 DNA fingerprinting has excluded the primary suspect in 25% of sexual assault cases. Despite Scheck's enthusiasm for DNA evidence as a way to correct what he says is the "extraordinarily large number" of falsely convicted persons in U.S. jails, he also acknowledges that the testing itself has to be done correctly.

The National Commission on the Future of DNA Evidence was created in 1998 at the request of Attorney General Reno to "encourage the most effective use of DNA evidence." But a report by Commission members acknowledges that DNA evidence is not "cut and dried," but that "the cases can be very complex." At a meeting of the commission in Washington DC last October a Commission working group reported that problems with "interpretations in the lab analysis," have caused findings to be "done or based on questionable assumptions."

In the real world, as the Simpson case showed, DNA-based identification is far from perfect. In one test the California Association of Crime Laboratories found that DNA labs like Cellmark and Cetus mistakenly matched test samples that weren't identical. There have also been questions about government DNA labs. The FBI's Crime Lab was the subject of embarrassing revelations by a whistleblower in 1995 who said that the lab had been "drylabbing," a word meaning faking results. Barry Rand Elden, chief of appeals for the U.S. Attorney's office, headed an 18-month investigation of the FBI lab and released a report to the U.S. Office of the Inspector General in 1997. Elden praises the FBI as a leader in DNA analysis, but he also acknowledges that "there was a problem." The National Association of Criminal Defense Lawyers says the FBI is guilty of sloppy work that could contaminate samples that are being analyzed, but even worse abuses are possible. One of the Crime Lab practices looked at by the Inspector General was the erasure of important computer files used by government scientists analyzing DNA from the crime scene in the O.J. Simpson case, and recently a U.S. District Court Judge in Washington DC, who ruled the Department of Justice has engaged in "misconduct and bad faith" by refusing to disclose information about FBI employees involved in the Crime Lab scandal.

Congress reacted to the Crime Lab revelations by ordering the FBI to subject its lab to the accreditation of the ASCLD, a professional organization that also represents the nation's crime labs. The potential conflict of interest was illustrated at the ASCLD's September meeting at the Golden Nugget in Las Vegas, where the cost of the conference, including that of reimbursing the expenses of the 285 official participants, was paid by the FBI. Opening remarks by FBI Assistant Director Donald M. Kerr were followed by several days of discussions covering diverse subjects, but the most entertaining presentation was made by former New York Post Editor Jerry Nachman, who gave a talk titled "Dealing with the Media and Coming Out Alive." Nachman drew laughs from forensics officials representing major city police departments, the FBI, ATF and the military DNA lab. In between suggestions to "never, ever lie," and observations that the Los Angeles Times is "anti-police," Nachman honed his theme that, "as the size of the budgets of police forensic units increase, their public profile will also increase." His solution is basic public relations, make sure the media hears "positive stories of success," with the ultimate goal to "make DNA acceptable and convince the public to support more money for new scientific equipment."

Nachman's greatest warning was that since Watergate and the Vietnam War, "often young and stupid reporters try to make a career by taking down a government official." It was arguably the most energetic moment of the conference as officials described their misadventures with the media. An official of the Pentagon's DNA lab in Maryland fumed about a "biased" report done by CBS anchor Dan Rather while representatives of the FBI, ATF, and Los Angeles Police Department asked Nachman how to deal with being misquoted, fielding ambush questions, and most of all, how to deal with the ACLU. Nachman told them how to use standard retorts like "not for attribution" and never to say "no comment," but most of all he advised cultivating pro-police reporters whom he called the "friendlys."

Friendly or not, everyone was invited to the meeting of the Commission on the Future of DNA Evidence. Commission chair Shirley S. Abrahamson is Chief Justice of the Wisconsin Supreme Court; she exhorted commission members to move quickly to make recommendations on how best to promote and integrate DNA fingerprinting into the fabric of daily life in the United States. The federal government is currently writing new legislation to expand DNA fingerprinting at the national level. The U.S. Senate version of the "Juvenile Offender Accountability Act" sponsored by Utah Republican Orrin Hatch provides that all individuals convicted of "crimes of violence" or violent acts of "juvenile delinquency" have their DNA profile entered into the databank. The Juvenile Crime Bill, including its DNA provisions, is expected to reach President Clinton's desk by the end of the year. In a quest to fulfill its mandate, the commission has been producing DNA how-to publications, discussing public policy and advising everyone from the individual police officer to state legislatures and congress, as well as the Attorney General. The Commission produced a DNA promotional pamphlet sent to one million U.S. police chiefs, as well as a ground-breaking report entitled "Post-Conviction DNA Testing: Recommendations for Handling Requests." The report provides detailed advice for prosecutors, judges and defense attorneys on how DNA evidence can be used to re-open cases and exonerate prisoners.

Based on the record of DNA testing in freeing mistakenly convicted prisoners, the Commission proposes that the United States criminal appeals process be changed, permitting people in prison to use DNA evidence to file an appeal even after the deadline has passed. Barry Scheck called the proposal, which was made at the October meeting of the Commission, a "home run" for civil liberties. Two states, New York and Illinois already allow late appeals based on DNA evidence with several others considering similar legislation. Requests by prisoners for DNA tests are already growing, Cellmark's Tim Stacy calls it "jailmail," from prisoners asking for help in their cases. But state of the art DNA testing of an old crime scene, which may include blood from multiple sources, is pricey for indigent prisoners trying to prove their innocence. Commercial labs charge nearly a thousand dollars a sample for DNA identity tests, and a typical rape case includes several separate samples that require testing. Many states also limit the amount of damages that can be paid for claims of false imprisonment, sometimes after decades of wrongful incarceration. Despite the DNA hype, state legislatures aren't throwing money at re-testing old crimes.

As the use of DNA fingerprinting becomes universal, say its proponents, the need for post-conviction testing will diminish anyway. Much of the policy discussion at the September meeting centered around the looming issue of how long law enforcement agencies should retain DNA profiles in their databanks. Terry G. Hillard, Superintendent of the Chicago Police Department, blasted proposals by the FBI that law enforcement agencies hold DNA information indefinitely. Chief Hillard told commissioners that "being a law enforcement officer for 31 years, I really just don't trust the system that much." Harvard's Phillip Reilly adds that, "we run the risk of tripping up on ourselves and failing our charge if we don't adequately address the issue of trust and say we believe in law enforcement's ability to be the custodian of these samples for a long period of time and to treat them with the highest integrity."

Fears over the future misuse of profiles might be illustrated as much by who's been kept out of a database. California's DNA databank has archived bloodstains and DNA samples from over 100,000 people convicted of violent and sexual offenses. The Chief of the state's Bureau of Forensic Services, Jan Bashinski, defended her state's privacy guarantees. She says that California law requires the databank to "remove any evidence samples we test, once the case has been solved and it's been determined that the sample didn't have anything to do with the case." Bashinski adds that "if we have a piece of evidence that turns out to be irrelevant, that profile cannot go into the databank." But when she was asked if that law required that samples from the O.J. Simpson case crime scene be removed from the databank after Simpson's acquittal, Bashinski said, "Mr. Simpson's sample was never in our database," because, "samples only get into the database when they're from cases that are unsolved and that was considered a solved case."

Simpson vowed shortly after his October, 1995 acquittal in the murders of Nicole Brown Simpson and Ron Goldman to pursue "as my primary goal in life" the killer or killers responsible for the murders," but no other suspects were ever investigated by police. In the end, the jury believed that the police wanted to convict Simpson, and falsified and planted his DNA at the crime scene. The authorities may have had the science but they lacked the public's trust.

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