DNA Doesn’t Lie, But People Do

University of New Haven (UNH) President Steven H. Kaplan with forensic scientist Dr. Henry C. Lee and Connecticut Senator Richard Blumenthal (D). Photo by Zrosen88, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons

In case you missed, it, a federal judge this week issued summary judgment against Dr. Henry Lee, finding that he provided false testimony in a 30+ year old Connecticut murder case, which led to the wrongful conviction and decades long imprisonment of two young men. Summary judgment means a jury will not be asked to decide whether Dr. Lee lied; they will be told that he did and asked to put a dollar value on the damage his lie caused. In the world of true crime, this is an astonishing development.

There’s no denying that modern forensic science, particularly DNA testing, has been somewhat of a miracle in crime solving, in cold cases and new. It’s supremely satisfying to see the perpetrators of horrific murders finally held to account for their wickedness and the destruction they caused. The Golden State Killer is perhaps the most famous of these in recent years, and the identification just last week of the Long Island Serial Killer, or LISK, put an end to yet another reign of terror. But a tool as powerful and persuasive as evidence like DNA also has the potential to be quite problematic.

Any lawyer who practices criminal law can attest to the so-called “CSI Effect.” This refers to the tendency of a jury to place all of their faith in forensic evidence such as DNA, with their expectations set from years of watching murders neatly solved by lab geeks on TV crime shows. When a real-life prosecutor fails to present fingerprints or DNA, some juries hesitate to convict; conversely, the presence of such evidence, no matter what other explanations may exist for its presence. can also sway a jury to a potentially undue guilty verdict. It has become the end-all, be-all of modern criminal justice; after all, DNA doesn’t lie.

While most of us have a very surface level understanding of scientific forensic analysis, few of us actually understand the intricacies of its extraction, testing, and comparison. For that, we rely upon experts, those multi-degreed, lab-coat wearing professional witnesses who sit on the witness stand and explain to us, in as close to a fifth grade level as they can, what their lab tests reveal about the evidence. We rely upon the adversarial system in the courtroom to point out the flaws, if any, and present contradictory evidence. May the best -or least off-putting- scientist win!

With the public’s long-held fascination with crime, certain individuals have created a name for themselves for their work in forensics. They are consulted on and hired by prosecutors around the country on big cases, and for those who can afford it, defendants trying to prove their innocence. Among the big names in forensics, Dr. Henry Lee was arguably the biggest.

By 1995, Dr. Lee had written or contributed to over 20 books, including forensic science textbooks. He was serving as the director of the Connecticut State Police lab and a respected name in the scientific community when he accepted a side gig as a consultant in the murder trial of OJ Simpson. Lee was hired by the defense to examine the physical evidence in the case. Lee was critical of the collection and handling of the evidence from the crime scenes, particularly with regard to items purported to have blood on them. Jurors later indicated that Dr. Lee’s evidence was important to their decision to acquit Simpson.

After that, Lee became rather famous in the world of true crime. He was featured in the very first episode of Forensic Files, in which he helped convict the husband of Helle Crafts of murder. Crafts body was never found, but Lee helped prove her disposal via woodchipper. He was in three other episodes of the series and appeared in other similar shows. He was consulted on or testified in many high profile cases thereafter, including the cases of JonBenet Ramsey, Laci Peterson, Kathleen Peterson, and the DC Sniper cases.

It was in 1985 during his stint as director of the Connecticut State crime lab that he testified in the murder trial of teens Shawn Henning and Ralph Birch. The crime scene had been quite bloody but the defendants, who lived in a car at the time, had no blood on them. There was a stained bath towel at the scene that the state theorized the killers had used to clean up. At trial, Dr. Lee testified that it was possible the two boys committed the murder – stabbing the victim 27 times including in the jugular vein – without getting much or blood on themselves. He further testified that he had conducted preliminary testing on the stains on the towel while at the scene, the results of which were positive for blood.

This latter fact was disproven in 2020, when new tests revealed the stains not to be blood. This, combined with the fact that no physical evidence linking the defendants to the crime scene was ever found, resulted in the convictions being vacated and the charges ultimately dismissed. The wrongfully convicted men sued the state, the prosecution, and Dr. Lee for their wrongful imprisonment. It was through this lawsuit that the summary judgment order was issued, in which the judge concluded that Dr. Lee’s testimony was false; in fact, the record was devoid of any evidence that the towel had been tested by Lee at all.

Lee denies wrongdoing, insisting he never lied or presented false evidence, though no paper trail or other evidence exists that the field testing he described ever took place. He notes that he had no motive to falsify evidence, and that there were no suspects at the time he alleges he conducted the test at the scene.

“I was called by the state’s attorney to testify about my scene reconstruction and the chemical testing used at the scene,” he said in the statement. “I have no motive nor reason to fabricate evidence. My chemical testing of the towel played no direct role in implicating Mr. Birch and Mr. Henning or anyone else as suspects in this crime. Further, my scientific testimony at their trial included exculpatory evidence, such as a negative finding of blood on their clothing that served to exonerate them.”

“A negative finding for blood on the towel 20 years later should not be interpreted as fact that there was never a positive test for the presence of blood on this towel nor should a quantum leap in thinking be made that this was an attempt to fabricate evidence,” Lee said.

Regardless, it is a near-certainty that defendants or attorneys of defendants across the country who found themselves convicted at trials in which Dr. Lee provided expert testimony are now weighing their options.

That’s what happens when a prosecution witness is discredited. Ask the state of Massachusetts about Annie Dookhan. Or ask the states of West Virginia and Texas about a man named Fred Zain.

Dookhan was responsible for testing substances believed to be illegal drugs and testifying to the results in court. Turns out she had a pattern of shortcuts and outright fraud. Dookhan received 3 to 5 years in prison, a small price to pay compared to the 24,000 or so defendants affected by her fraudulent test results.

Zain was the serologist for the West Virginia State Police Crime Lab for ten years, serving as head of the department for the last three before leaving and taking a similar position in Texas. Suspicions about Zain, who lied about his academic credentials and failed basic serology competency exams, first arose following the conviction in 1987 of a man named Glen Woodall. Woodall was convicted of abducting and raping two women from a local mall. Zain testified that Woodall was one of “6 in 10,000 men” who could have committed the rapes, but a DNA test, the first such test ever admitted at the state court level in the United States, proved it wasn’t him. Further investigation showed that a hair found in the victim’s car, originally labeled as pubic hair of unknown origin, was actually Woodall’s beard hair and Zain had changed the result.

A full scale investigation in Zain’s work revealed widespread fraud and perjury. In the end, the West Virginia Supreme Court of Appeals ruled that all testing results by Zain were to be invalidated, leaving dozens of convictions in question and costing the state millions in settlements for wrongful convictions. It was no secret that Zain did not perform his work “by the book”, but his malfeasance was overlooked because he was so good for prosecutors.

It may be too soon to put Dr. Lee in the same category as Zain, but if he did intentionally misstate evidence, why? What is the motivation behind these actions?

In Zain’s case, he ostensibly had no stake in the matter. His job was not dependent on producing pro-prosecution results, nor did he receive any monetary gain for helping to secure a conviction. His role should have been that of the disinterested party, representative only of unbiased science. Then again, it was the State Police Crime Lab, not the Disinterested Party Crime Lab. Was there intense pressure from law enforcement or others to help them “get their man”? Zain never said. He, like Dr. Lee, denied any wrongdoing.

As an attorney with extensive experience in criminal cases, a few things come to mind. One is the tendency of the state- meaning prosecutors, police officers, and their various professional witnesses such as chemists and forensic scientists- to move as one  toward the singular goal of conviction. Things like due process and the rules of evidence are “technicalities”, obstacles in the way of what is “right.” Especially in smaller jurisdictions, the same handful of people work together over and over again on case after case. It can get very clique-y, and if your part in building a case is the weak link, your work environment can become unpleasant quickly.

Police and prosecutors don’t like to admit they’re wrong. How often do you hear about them fighting against efforts to secure release or a new trial even when new evidence seemingly proves a wrongful conviction? When law enforcement decides they have their man, it can be very difficult to talk them out of it. If you’re the one holding the key- the scientific proof upon which the case may hinge- being the bearer of bad news does not endear you to your colleagues. Perhaps the pressure to “help” drove people like Annie Dookhan to fake results. Notably, it is not alleged that Dookhan’s malfeasance resulted in undue acquittals. Neutrality, which should be a hallmark of good science, is crucial.

We would be remiss not to consider the reverse situation, when folks like Dr. Lee are paid for their work as consultants such as he was in the Simpson case. There’s a tendency to view that work more skeptically, when an expert opinion aids the defendant. In that case they’re often accused of being simply a shill, saying what they were paid to say by the accused. Maybe that skepticism should cut both ways.

In an age where convictions are becoming so heavily reliant on scientific testing, society cannot afford rogue scientists out to make a name for themselves at the expense of true justice. Being able to rely on these test results when presented in a court of law is crucial and has resulted in convictions and exonerations that may never have occurred without the latest technology. It is an invaluable tool, in the right hands. DNA doesn’t lie…

But people do.