DNA Doesn’t Lie, But People Do
![DNA doesn't lie](https://i0.wp.com/ordinary-times.com/wp-content/uploads/2023/07/President_Steven_H._Kaplan_with_Dr._Henry_C._Lee_and_Sen._Dick_Blumenthal-e1690644205136-300x150.jpg?resize=300%2C150&ssl=1)
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.
One thing not commonly discussed is how convicting an innocent person allows an actual killer to walk free to kill again and again and again.Report
What’s the main goal?
Is it: To enact justice?
Is it: To demonstrate competence on the part of the authorities?
Because if it’s only to demonstrate competence on the part of the authorities, a conviction is a conviction is a conviction.Report
How does a wrongful conviction demonstrate competence?Report
It doesn’t.Report
They don’t *CALL* it a wrongful conviction.
I mean, good god. That would cost them face.Report
So the guy who helped OJ get off was willing to say anything about anyone if we paid him?
I guess this explains a bit of what happened there. With the benefit of hindsight, the DNA evidence against OJ was stupidly large and convincing.Report
That’s the unfortunate impression left when an expert’s credibility is called into question as it has been here.Report
While generally scientific, DNA is still an interpretive measure and there is no real science that backs up their claims of uniqueness. They never do a 100% fully DNA sequencing, they hit a few spots and call it a day. It might be a fact that DNA is varied enough to be 1 in 2 billion or it might be 1 in 10^200 with more combinations than there are electrons in the universe. But the fact is that they are not testing DNA far enough to make that quantification scientifically.Report
True, but 99.9% (wiki) of all DNA is the same for all humans so there’s no point.
As of April 2021 we have 20+ million people in these profiling DNA databases. Ergo we have an extremely good idea how unique these entries are.
It would be major news if we had non-twin non-clone identical entries. It hasn’t happened yet and we think it will never happen.
It’s like using monkeys to randomly create 10,000 page books. If you find two books that are the same, odds are good they’re different copies of the same monkeys work and not two different monkeys.Report
I think we need to seriously consider implementing double-blind testing of evidence.
Put a third party between the police and the testing lab. The third party gets handed a piece of evidence by the police, it then hands four pieces of evidence to the testing lab, and the testing lab doesn’t know which one is real. They have to test them all.
Now, that obviously would be expensive, but, even if we don’t do that, I want to point out that we almost never bother to test these labs when they don’t know it’s a test, and as such a third party in the middle would be a good idea, because we could do that.
Right now, they get handled a piece of evidence by the police and they generally know what the results ‘should’ be. Whereas if there was someone in the middle, someone with no interest in this, we would be able to _occassionally_ hand the lab completely bogus evidence and see if they came back with positive results. We wouldn’t have to do it for everything, but if the lab knew that ‘try to match this fingerprint to a suspect’ or ‘test this for blood’ tests were sometimes completely made up and if they return a positive they’re immediately going to be fired, we might have less of this.
Granted, this is a problem with the entire criminal justice system, not just the labs. Everyone can lie, and there’s basically nothing in the system designed to check that or test it. It’s just a lot harder to prove the police were blatantly lying about something they observed than to retest a piece of evidence. Although it would be interesting to test the police in the same way, set up situations where someone is factually not breaking the law, and monitored, and wait for the police to react.Report
Interesting Idea. It wouldn’t need to be three-and-1 (25% of tests matter), you could probably do 1-4 (80% of tests matter) and you’d be just fine. That would reduce the expense a LOT. In theory you could go with 1-0 if you’re not telling the lab what the correct results are but whatever.Report
I mean, honestly, literally just inserting a third party in there so that the police are not directly talking to the labs in such a way that they can make it obvious what outcomes they want would solve a good chunk of the problem. But I just suspect that the police would instantly come up with a backchannel and subvert all that.
Which, to be clear, the police would do anyway, which means any testing would have to be pretty identical. They want a towel tested for DNA, the middle party needs to go and buy an identical towel and put identical bloodstains on it from someone else, and send that in…and I was going to say ‘send it in together’, but that _also_ puts the testing lab on alert. They really need to send it in such a way that the lab will mistake it for the original, and only after it’s tested send the actual evidence in.
The problem there, of course, is that it can slow things down. OTOH, we don’t seem to have a problem with the court system operating extremely slowly in literally every other possible way, so it seems odd we’d suddenly care about that.
Of course, the thing about DNA evidence specifically, is instead of duplicating the tests, we can simply duplicate the things being matched to. Don’t let labs run tests against one DNA pattern, make them run them against a 100 different ones, some amount of which would be supplied by the police and the rest would be added in by the third party. Aka, do a ‘lineup’.
Same with fingerprints.
Which is, I think, how a lot of people assume it works, but actually isn’t. The only place any court requires lineups is random civilian witnesses. _Expert_ witnesses get to stand there and tell you how they compared the fingerprints/DNA at the crime scene to the fingerprints/DNA of the suspect, which they knew was the suspect at the time, and and they match. And I think people do not understand the level of subjectivity in that, they think it’s some magical computer stuff where it pops up MATCH IDENTIFIED and a photo of the suspect that the computer found out of a millions of records, and it really really is not.Report
RE: Towels
Separate labs? One to collect the DNA, one to process it.
RE: 100 tests
If they know they’re getting random spot checks, enough to establish their level of honesty, then they’ll toe the line.
RE: Expert Witnesses
I got to hear one at my trial (I was in the jury). She was an expert at running blood alcohol tests. Seriously impressive lady.(*)
Given that the cops really didn’t want to convict him (they paid his fine(**) and let him drive off) my expectation is they didn’t tell her what the results should be.
(*) Attractive, Intelligent, Well Spoken, Experienced, and a Degree beyond a PhD is running that test. The cops beclowned themselves but she effortlessly handled all questions from the defense with an aura of competence.
(**) Yes, really. College Campus cops dealing with a no-neck football player who I gather was important.Report