Category Archives: Forensics

Controversial DNA Forensic Technique Catches California Serial Killer

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Robert Enneser by Robert Ennesser

On July 7, 2010, Lonnie David Franklin, Jr., was arrested and accused of murdering eleven people between 1985 and 2007.  Franklin had been dubbed the "Grim Sleeper" because he is believed to have taken a 14 year hiatus from killing between 1988 and 2002.  What led to his arrest after 25 years of eluding police? A controversial technique known as a "familial DNA search," in which DNA evidence from Franklin’s victims or crime scenes was closely matched to DNA obtained from his son.  Franklin’s son was convicted of a felony, and DNA collection is a normal procedure after a felony conviction.  Despite the success of the police in catching a serial killer, there is debate as to whether it is fair to use family members’ DNA to track down criminals.

On the national level, DNA information is stored by the FBI in the Combined DNA Index System (CODIS), which contains more than 8 million genetic profiles.  It has assisted in more than 116,000 investigations, including nearly 11,000 in Illinois.  Each CODIS profile contains information from 13 genetic markers composed of short tandem repeats (STRs) – repeated patterns of DNA scattered throughout the genome. Initially, CODIS included only violent felons but subsequently expanded to include all felons and later all felon arrestees.   Individual states have their own databases with differing inclusion requirements.  Some states do not expunge DNA profiles of arrestees later found innocent, other that do often require long, complicated procedures.  The FBI does not use familial DNA searches, but states are free to use the searches if they choose.  As a result, in California and Colorado, DNA of people never convicted of a crime and not under individual suspicion can be compared against DNA found at a crime scene. 

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Guilt by Association: Familial DNA Searching Implicates Many On the Quest to Find The One

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JenAckerby Jen Acker

When DNA is left behind at a crime scene, investigators usually run the sample through a DNA database.  All states collect DNA samples from convicted felons, and some even collect DNA from suspects brought into custody.  If the DNA found at the crime scene matches a sample in the database, a suspect has likely been identified.  Sometimes, an exact match may not be found, but a very close match may exist:  this is the essence of familial DNA searching.  These near-matches may spell trouble for the innocent relatives of people with criminal histories. 

Individuals related by blood have similarities in genetic material.  Therefore, the stored DNA of a man who has a criminal record could be used to identify his brother who does not have a criminal record.  Similarly, DNA taken from children born out of a rape has been used to identify their father, the rapist.  In at least one high profile case, familial DNA searching was used to free an innocent man who spent 19 years behind bars.

Despite the potential for identifying suspects, familial searching is not without debate, and its legality has not been vetted in the courts.  Critics contend that familial DNA searching raises concerns regarding privacy and illegal search and seizure.  While DNA near-matches indicate that a relative of a convicted criminal is likely implicated, near-matches do not indicate precisely which relative.  The fear is that family members become guilty by DNA association even when law enforcement has no other evidence to support the connection.

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FDR’s Cancer and Abe Lincoln’s DNA: What Rules Should Govern “Biohistory?”

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Lori Andrews by Lori Andrews

Historians traditionally probed the lives of past presidents by analyzing their speeches, reading their diaries, and tracing the trajectories of their lives.  But now medical and genetic tools have been added to the arsenal of historic inquiry.  And questions have arisen about the ethical and legal ramifications of the emerging field, “biohistory.”

A new book, FDR’s Deadly Secret by neurologist Steven Lomazow and The New York Post reporter Eric Fettmann, hypothesizes that Franklin Delano Roosevelt had cancer.  The authors and came to that conclusion by analyzing photos of small lesion above his eye, thought to be a melanoma.

The assertion is nothing new. For at least half a century, physicians and journalists, including a 1979 Time magazine article, reported on just such a speculation.  But newspaper and blog responses in the past few days are filled with anger about how FDR could have kept this from the public.  There’s even a sense of outrage that his decision-making during World War II might have been impaired due to the spread of the cancer to his brain.  In yesterday’s Post, Fettman accused FDR of endangering the nation by running for president with this supposed malady.

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CSI Meets PhD: Should Universities Require DNA Testing of Job Applicants?

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Lori Andrews by Lori Andrews

If you're applying for a job at the University of Akron, you may have more to worry about than the old adage of publish or perish.  Whether you want to work as a secretary or a tenured professor, a new university policy empowers the college to require job applicants to submit DNA.  Laurie Massie, a spokesperson for the University of Akron, told CBS News that the board decided to include DNA testing in the policy because "there have been national discussions that indicate that in the future, reliance on fingerprinting will diminish and DNA for criminal identification will be the more prominent technology." 

But Massie’s statement obscures the difference between a DNA sample and a fingerprint.  Taking DNA is more intrusive, even if it is just done through a cheek swab.  A recent criminal case, Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), found that police exceeded their authority when they subjected an unwilling suspect to a cheek swab.  Plus, DNA contains far more information than does the fingerprint.  Testing an applicant’s DNA could provide information about whether the applicant, while healthy now, was likely to develop a costly-to-treat genetic disease.  Even if the DNA was only used to see if an applicant’s DNA was in the federal DNA databank because he or she had committed a crime, adding employment searches to the investigative searches of the databank would result in even greater backlogs than currently exist.

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DNA Evidence – A Boon to Law Enforcement, but the Start of a Storage Nightmare

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Lori Andrews by Lori Andrews

When I spoke a national meeting of law enforcement personnel and prosecutors, I was fascinated by the new forensic tools spanning every type of evidence – from photographs to footprints, from gum to guns.  But, in the hallways, between the scientific and legal presentations, the men and women working in the criminal justice system sounded a lot like 20somethings complaining about their first apartment.  Sure, there were changes in technologies.  But there was a bigger problem:  Where were they going to store all the evidence?
 
With the advent of DNA technologies, forensic officials who had been pack rats were able to convict people of old crimes. This past weekend, for example, a suspect was arrested for the 1989 murder of an elderly woman; modern DNA technology allowed old evidence to be analyzed.   Evidence from decades ago has also been retested through efforts like the Innocence Project, letting many innocent men go free. In fact, yesterday, the Richmond Times Dispatch announced six training sessions for volunteer lawyers on how to contact the 881 Virginia felons whose old cases included evidence ripe for potentially-exculpatory genetic testing.

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People Always Told Me Be Careful What You Do: The Supreme Court’s Refusal to Determine a Constitutional Right to Post-Conviction DNA Testing

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Aaron MidlerGUEST BLOGGER Aaron Midler

Last month, the Supreme Court of the United States decided that convicted prison inmates do not have a constitutional right to post-conviction DNA testing. The Court’s decision in District Attorney’s Office for the Third Judicial District v. Osborne dealt a significant blow to prisoners in the three states without provisions for post-conviction DNA testing, as well as prisoners who cannot prove conclusively that DNA testing will exonerate them.  Blog entries by Tim Welch, here and here, explore these issues more fully.

Last month’s decision is also an interesting example of how the Supreme Court deals with the potential of new technology to upset the established legal system.  Chief Justice Roberts, writing for the majority, framed the problem as “how to harness DNA’s power to prove innocence without overthrowing the established system of criminal justice.”  The majority’s solution to this problem was to not disturb the “prompt and considered” response of state legislatures in drafting post-conviction DNA statutes. The majority reasoned that creating a constitutional right to post-conviction DNA testing would shift the responsibility of adapting the criminal justice system to DNA technology from the legislatures to the courts. If the Court had determined that a constitutional right to post-conviction DNA testing existed, the majority predicted that the Court would soon be required to determine a host of other questions, such as whether the states are constitutionally obligated to preserve DNA evidence for future testing–a result that the majority aimed to avoid.

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Should Infant DNA Later Be Used in Forensics?

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Lori Andrews by Lori Andrews

Since the 1960s, public health departments around the globe have tested hospitalized newborn babies for serious genetic disorders, generally without the parents' knowledge or consent.  Many departments save that DNA, tiny spots of blood on paper.  Now questions have arisen about whether law enforcement officials should have access to those samples.  In other words, should babies have a right not to self-incriminate themselves?

In the United States, an Institute of Medicine committee recommended that DNA banks created for medical and research purposes (such as newborn screening banks) not be used for forensic purposes.  But, in other countries, courts have handled fascinating cases on route to setting policies.

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Do Inmates Have a Constitutional Right to DNA Testing? U.S. Supreme Court Says No.

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Tim WelchBy Tim Welch

Last month, I wrote an entry about the current trend of prosecutors blocking convicted prison inmates from accessing DNA testing on old pieces of evidence stored in police files.  Despite inmate advocacy groups’ claims that DNA tests have exonerated hundreds from false imprisonment, prosecutors are denying the tests to inmates, citing insufficient scope of state laws.  William Osborne, a man currently serving a 26-year sentence for a 1994 rape conviction in Alaska, brought his case all the way to the Supreme Court.  Osborne is seeking a DNA test under 42 U.S.C. § 1983 on police evidence collected during his 1994 rape trial.  But yesterday, the Supreme Court dealt a major blow to the wrongfully-convicted of America’s prisons.

On June 18, 2009, the Supreme Court ruled 5-4 against Osborne, deciding that convicted prison inmates do not have a constitutional right to obtain DNA tests on old evidence.  As a result, the decision of whether or not to grant inmates access to DNA testing will remain in the hands of state courts and legislatures.  While according to the Chicago Tribune, 47 states have already enacted laws that allow inmates to receive DNA testing in some post-conviction instances, Alaska is not one of them.  Osborne, who won in the U.S. Court of Appeals for the 9th Circuit, may now face an impossible task in obtaining what he believes to be justice.

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Should Inmates Have Access to DNA Testing? Some Prosecutors Say No

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Tim WelchBy Tim Welch

For prison inmates who are languishing in cells serving sentences for violent crimes they did not commit, a DNA test can be a harbinger of freedom.  That is, if they can get one.  State legislatures have begun to recognize the potential that DNA testing has for exonerating wrongfully-convicted prisoners.  Forty-six states now have laws that enable convicted prison inmates to request a DNA test on evidence related to the crimes they were convicted of in court.  But what sounds like an easy and effective way to reduce the number of wrongfully-convicted prisoners in the United States is meeting significant resistance from prosecutors.

Even though they are increasingly willing to allow DNA testing of an inmate, prosecutors are delaying these tests in some cases by years due to the scope of the applicable state laws.  In reality, DNA tests have exonerated hundreds of wrongfully-convicted people in the United States.  But many of the 46 state laws allowing this type of testing stipulate that the results must be able to prove the prisoners innocence.  Prosecutors will argue that for many types of crimes, simply not finding a DNA match to the inmate is not enough to establish innocence.  For example, in the event of a murder, the fact the blood collected from the scene does not match the perpetrator is not sufficient to prove that the perpetrator did not commit or aid in committing the murder.  This is especially true when a jury had already convicted the perpetrator on the basis of testimony and identification.

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Big Brother Is Watching–FBI, States Expanding Forensic DNA Databases by Millions

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Tim WelchBy Tim Welch

Last month, the FBI drastically changed its policy on whose DNA will be entered into and stored in the largest forensic DNA database in the world.  Previously, the FBI only collected DNA samples from convicts, i.e., people who have been declared guilty by a judge.  The FBI now plans to join 15 states in collecting DNA samples from people who have only been arrested or detained.  Law enforcement officials claim that including people in forensic DNA databases who have either been released without charges or declared not guilty in court will ultimately put more criminals in jail.  But the federal government's decision raises privacy issues as well.

Forensic DNA databases exist at the local, state, and federal level.  When a person is convicted of a crime, his or her DNA code is entered into a computer system, such as the Combined DNA Index System (CODIS), which allows investigators to compare biological specimens collected at crime scenes to DNA profiles of convicted criminals already stored in the database.  Even if no match is found, investigators can cross-check anonymous samples from different crime scenes to hopefully shed light upon unsolved crimes.  Law enforcement officials claim that their forensic DNA databases have helped convict thousands of criminals and have exonerated hundreds of innocent people who were wrongfully convicted.

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