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Beyond All Reasonable Doubt: DNA Based Exoneration

Student ID 7410161 Death Penalty Law Seminar 4D05 Professor Sean Kennedy Loyola Law School April 29, 2009

TABLE OF CONTENTS

Introduction .................................................................................................................................. 1 Constitutional Rights to Post-Conviction DNA Evidence ........................................................ 3 In appropriate forensic DNA evidence and Prosecution misconduct ..................................... 9 DNA Based Exonerations ........................................................................................................... 11 Demystifying DNA ..................................................................................................................... 17 DNA Forensic Testing ............................................................................................................... 28 Specific examples of forensic DNA tests .................................................................................. 31 Molecular basis of forensic DNA testing errors ...................................................................... 34 Conclusion .................................................................................................................................. 37 Citations ...................................................................................................................................... 39

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Beyond All Reasonable Doubt: DNA-Based Exoneration Introduction DNA testing has aptly been described as “nothing less than the truth machine of law enforcement, ensuring justice by identifying the guilty and exonerating the innocent.” 1 It is now universally recognized that DNA testing is “the foremost forensic technique for identifying perpetrators, and eliminating suspects, when biological material such as saliva, skin, blood, hair, or semen [is] left at a crime scene.” 2 District Attorney's Office for the Third Judicial District v. William G. Osborne, 2009 WL 208117. No. 08-6. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit, Brief for the Respondent. January 26, 2009. The United States Supreme Court is being asked to consider whether a prisoner is entitled to post-conviction access to evidence for DNA testing under 42 U.S.C. § 1983 and whether denial of this access would violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Post-conviction DNA testing has already exonerated 233, individuals including 17 on death row. 3 The United States government and 44 states have statutes that provide for post-conviction DNA analysis; however, Alaska is not one of them. Osborne may not be a good candidate for a constitutional test case. First, even though Osborne had consistently requested a more discriminating DNA analysis, Osborne’s attorney may have waived his right to one by not requesting it. Second, Osborne has yet to assert his innocence under penalty of perjury, as required under 18 U.S.C. § 3600, the Innocence Protection Act of 2004. Further, Alaska has not unequivocally stated that they will not invoke a statute of limitations if and when Osborne does assert his innocence. The popular press reports that Alaska officials say that even if DNA testing were to show Osborne’s DNA was not present in the semen on the condom at the crime scene, their other

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evidence was strong enough to uphold the conviction. In contrast, the brief for the respondent points out that Alaska “concedes that a favorable test result would conclusively establish the prisoner's innocence.” 4 During oral argument, Alaska maintained that it has procedures in place to allow postconviction DNA testing, and seemed to imply that were Osborne to aver under penalty of perjury that he was innocent, he would be given access to the evidence. United States Supreme Court Justice Breyer inferred that this was a binding offer. However, when the justices tried to pin down Mr. Rosenstein (attorney of record for the petitioners), he back-pedaled and suggested that there were procedural issues to consider in addition. Apparently, Osborne was reluctant to affirm his innocence as he had been required to assert his guilt under penalty of perjury as a prerequisite condition to be considered for parole. Chief Justice Roberts felt it would be ironic if Osborne were denied access to the DNA because he would be “guilty of perjury one way or the other.” 5 At Osborne’s original trial, DQ alpha DNA test data was presented which was harmful to Osborne’s defense. The state chose not to use RFLP DNA analysis as there was a question whether the sample was appropriate and the test would destroy the sample completely. Osborne’s attorney did not object for strategic reasons. Osborne, himself, repeatedly asked for the more discriminative DNA testing. Subsequently, superior PCR forensic DNA analysis has become available. Osborne’s request for access to the DNA, which he intends to submit to this PCR testing at his own cost, is the basis for the writ of certiorari. The current state of these constitutional questions will be examined. Many DNA-based post-conviction exonerations involve prosecutorial misconduct. This misconduct will be addressed in passing as it has been recently extensively reviewed elsewhere. A rather detailed

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description of the science of DNA will be presented to provide a basis for understanding the specific forensic DNA tests along with their limitations and the potential sources of error. Constitutional Rights to Post-Conviction DNA Evidence Osborne is the latest judicial examination of putative constitutional rights for access to post-conviction evidence testing to address actual innocence using improvements in DNA technology. Osborne involves a non-capital conviction for rape. Preclusion argues against access to post-conviction evidence. While many consider preclusion or res judicata essential to a functional judicial system, a distinction can be made between crimes involving a prison sentence and those that involve the death sentence. Some consider preclusion inappropriate when death is the penalty. The United States Supreme Court noted in 1989 that “[a] major reason that Justice Harlan espoused limited retroactivity in collateral proceedings was the interest in making convictions final, an interest that is wholly inapplicable to the capital sentencing context.” 6 The conviction and subsequent death sentence of Roger Keith Coleman for the rape and murder of his sister-in-law became a highly publicized assault on judicial review of postconviction evidentiary rights and res judicata. While on death row, Coleman appeared on a number of television talk shows and was on the cover of Time magazine May 18, 1992. This was shortly before his execution on May 20, 1992. He convinced many people that he was actually innocent. The judicial system was not receptive to his arguments. While considering some of his claims, the courts used a procedural flaw, arguably due to an administrative error on their part, to avoid fully litigating the issue of post-conviction DNA testing on its merits. Coleman was given a final chance to avoid execution by Virginia; however, he failed a polygraph examination arranged by Governor Wilder as a condition for a stay of execution. 7

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While not a general vindication of the legal system, subsequent DNA testing showed that in this case the decision appears to be correct. In 2002, the Virginia Supreme Court refused postexecution DNA testing requested by the Centurion Ministries of New Jersey and four prominent newspapers. Subsequently, Virginia Governor Mark Warner had the evidence tested by the Centre of Forensic Sciences, Toronto, Canada. The results of the test were announced on January 12, 2006, and showed that Coleman’s DNA matched that found on the victim and at the crime scene. Warner's office announced the test results, stating that the results confirmed Coleman's guilt. 8 While the specific details of the forensic tests are not generally published, thus not allowing independent scientific confirmation, the reported reliability of individualization increased from 98% in the original trial to virtually 100%. Based on the dates of the testing, the initial examination was probably the DQ-Alpha test, which would be subject to contamination by the victim, while the 2006 reexamination utilized the Y-STR (Y-chromosome specific short tandem repeats) test. As discussed below, Y-STR is very effective; however, as the Y chromosome is inherited from the father with no genetic recombination, the husband of the victim, Roger Coleman’s brother, would have exactly the same DNA, and consequently, there would be identical test results were he to have contributed the DNA. Senior District Judge Glen M. Williams discussed the procedural history of actions involving Roger Keith Coleman in a memorandum opinion: 9 Coleman was sentenced to death on April 23, 1982; this was affirmed September 9, 1983. 10 Coleman's first petition for a writ of certiorari was denied on March 19, 1984. 11 Coleman filed a petition for a writ of habeas corpus on April 26, 1984 (amended September 7, 1984). After an evidentiary hearing, the circuit court denied relief in an opinion dated June 23, 1986. An order of final judgment was signed on September 4, 1986; however, it was not

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docketed by the court clerk until September 9, 1986. Coleman's attorneys filed a notice of appeal on October 7, 1986. Coleman moved to correct the final judgment date from September 4, 1986, to September 9, 1986, on October 25, 1986. The circuit court denied this motion; consequently, Coleman’s notice of appeal was not filed within the statutory 30-day period required by Va.Sup.Ct.R. 5:9. Coleman again appealed on December 3, 1986, and the Supreme Court of Virginia granted a motion to dismiss for failure to file timely the notice of appeal on May 19, 1987, and subsequently denied a petition for rehearing. The United States Supreme Court denied Coleman’s second petition for a writ of certiorari on October 19, 1987. 12 Coleman filed a federal habeas petition in district court (W.D. Va.) on April 26, 1988, which was dismissed, and a motion for an evidentiary hearing was denied on December 6, 1988, noting that the default on the state habeas proceeding barred federal relief and the claims were without merit. 13 Coleman appealed this decision to the United States Court of Appeals for the Fourth Circuit. After initially granting Coleman's petition for “PCR-DNA” testing, the Fourth Circuit affirmed the district court's ruling that all claims were barred by the state procedural error, the claims did not meet the “actual innocence” exception of the federal procedural default rule, and that the death sentence was constitutional. 14 On his third attempt, the United States Supreme Court granted his petition for a writ of certiorari. 15 However, the Court affirmed the procedural default bar in the state habeas proceeding. 16 The Court also noted that Coleman did not argue “that federal review of his claims is necessary to prevent a fundamental miscarriage of justice ....” 17 Petition for a rehearing was denied on September 13, 1991. 18

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A successive habeas petition in the Circuit Court of Buchanan County was dismissed due to the procedural bar, his claims of new evidence were not cognizable in habeas corpus, and final judgment was entered on December 20, 1991. Coleman’s May 20, 1992, execution was scheduled on February 12, 1992. On March 5, 1992, Coleman petitioned for appeal to the Virginia Supreme Court. The court refused the petition (claims were barred by procedural error) and that allegations of ‘newly discovered’ evidence were not cognizable in habeas corpus. 19 The action that was at issue in 798 F.Supp. 1209 was a writ of habeas corpus alleging actual innocence. After oral arguments on May 6, 1992, the court denied the writ on May 13, 1992, finding that 1) Coleman “failed to make colorable showing of ‘actual innocence’ entitling him to evidentiary hearing or habeas corpus relief” and 2) Coleman failed to show cause for claims not previously claimed to be considered and for reconsideration of claims previously decided. 20 The total procedural posture is presented above to demonstrate that denial of Coleman’s requests were facially based upon procedural error not substance. While having been clearly established by precedent, it is not immediately apparent why claims decided on procedural matters are subject to preclusion when res judicata is predicated upon a final judgment based on substantive merits. There is no question that finality is a desirable goal for judicial economy, but is it appropriate to deny recourse to more probative DNA testing on procedural issues in a death penalty case? It is interesting to note that Coleman’s claim of ineffectual assistance of counsel based upon the delay in filing was found to be without merit, and that finding was affirmed several times during the procedural posture as being not substantial. However, it was that same delay which was used as justification to deny the appeals. Any error that is directly responsible

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for the execution of the client seems to constitute a prima facie case of ineffectual assistance of counsel. Post-conviction DNA testing may be based either on constitutional grounds or statute. 21 The Innocence Protection Act of 2004 provides that post-conviction DNA testing will be ordered for a conviction resulting in imprisonment or the death sentence. Subject to certain other conditions, evidence previously untested or tested if a newer, more probative method is available, shall be subjected to post-conviction testing. Among other factors, an assertion of actual innocence is required by 18 U.S.C. § 3600 (a)(1)(A, B). The statute of limitations for the motion is the later of November 1, 2009, or 3 years after conviction. 22 This statute of limitations can be tolled provided the DNA evidence is newly discovered or that denial of the motion would result in manifest injustice. 23 Without a concomitant clear right to use any DNA evidence derived from it, long-term retention of evidence is now mandated by 18 U.S.C. § 3600A. Once post-conviction DNA evidence is generated and found to be exculpatory, the petitioner faces additional hurdles. Habeas corpus under the Antiterrorism and Effective Death Penalty Act (AEDPA) has a oneyear statute of limitations which is rarely tolled. 24 This statute of limitations may be tolled where the petitioner demonstrates a credible claim of actual innocence based on new evidence, but only in exceptional circumstances. 25 As more probative forensic DNA technology is developed, evidence is often discovered long after the first habeas corpus trial has concluded. In order for a second or successive habeas corpus action to be considered and heard, the applicant must 1) show either a new and retroactive rule of constitutional law or that the evidence could not have been previously discovered, and 2) show that, but for constitutional error, the applicant would not have been found guilty by a clear

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and convincing standard. 26 This is a higher standard than the preponderance of evidence standard used prior to the AEDPA. Some courts appear to feel that this is an unattainable standard. For example, in In Re: Davis, the Court of Appeals for the 11th Circuit notes that “[n]either Congress nor the courts ever have hinted that an additional equitable exception to 28 U.S.C. § 2244(b)’s general ban on second or successive federal habeas petitions exist.” 27 Presumably, conduct that exceeds simple error at trial, e.g., prosecutorial misconduct, would constitute “infringement of constitutional rights” and satisfy negation of both the statute of limitations and res judicata bars. Case law is not clear on this issue: most instances that have occurred have resulted in pardon or dismissal of charges. However, the “cause and prejudice” standard articulated in Frady would seem appropriate. 28 This standard states that the petitioner bears the burden to show that the prejudicial conduct “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” 29 The presence of misconduct should satisfy the current standard, i.e., Herrera: “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation. . . .” 30 It would exceed the 1963, preAEDPA Sanders standard in which “[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.” 31 Expansion of 42 U.S.C. § 1983 through Nelson and Hill may allow a possible alternate route other than habeas corpus. 32 Nelson and Hill provide for method-of-execution § 1983 challenges that were previously considered to be the exclusive domain of habeas corpus. An included exhaustion requirement is unique to this prisoner-litigation use of § 1983 relative to the more common civil rights uses. 33 Section 1983 actions have an advantage over habeas corpus in

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that their statute of limitations is that of state personal injury law, e.g., three years for New York, and the state requirements for tolling may be more liberal than § 2244. 34 While it can be used for wrongful imprisonment, it is not yet clear whether § 1983 can be used to introduce evidence of innocence. Relying in part on Brady v. Maryland, 373 U.S. 83 (1963), the United States District Court for the Eastern District of Pennsylvania held in Godschalk v. Montgomery County Dist. Att'y's Office that § 1983 petitioners have a postconviction due process right to access evidence that could question the jury verdict. 35 This is an apparent conflict with Heck v. Humphrey, which held that an inmate must show a favorable termination of his conviction or sentence to proceed in a § 1983 action. 36 The Eastern District of Virginia concurred with Godschalk in an unreported holding. 37 However, this was subsequently reversed. 38 Section 1983 law is evolving, e.g., in Osborne the Ninth Circuit reversed denial of a § 1983 claim based on Heck grounds in 2008. 39 This issue is the subject of the writ of certiorari discussed in the introduction above and may be resolved presently. 40 Inappropriate Forensic DNA Evidence and Prosecution Misconduct. Forensic DNA evidence is subject to errors ranging from honest mistakes through negligence, biased data analysis and testimony to intentional fraud. An example of alleged fraud involves Ms. Joyce Gilchrist. She was implicated in destroying evidence and giving false testimony in the trial of Curtis Edward McCarty. Gilchrist also provided evidence against Robert Lee Miller, Jr., whose death sentence was vacated in 1998 after the charges were dropped. Unbiased retesting of the DNA evidence exonerated Miller and implicated a person already in custody for a similar crime. During her 15-year tenure as an Oklahoma police chemist, Gilchrist’s evidence, in part, resulted in 23 death sentences of which 11 have been carried out. 41 Another notorious example of forensic fraud is that of West Virginia and later

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Texas forensic technician Fred Zain, whose false testimony helped convict more that 100 people. 42 Compounding the effect of this fraudulent testimony, expert witnesses have presumed veracity and expertise. In many cases, the defense does not challenge suspect testimony, allowing the fraud to be perpetrated over a period of years. Sometimes the fraud is based on omission. In the rape case resulting in the 1979 conviction of Gary Dotson, testimony was given that his blood type was only in common with 11% of the general population. 43 What was not stated was that the victim’s fluids were also in the sample, could swamp out the perpetrator’s, and was of the same blood type as Dotson. 44 In 1985, the victim recanted her testimony of rape, stating that her original intention was to conceal consensual sex with her boyfriend. The same judge that presided over the first trial denied Dotson’s motion for a new trial. 45 Charges were dropped in 1988 in response to a DQ-Alpha test done by Dr. Alex Jeffreys that excluded Dotson and implicated the boyfriend. 46 These and other similar problems are described in the 2008 Policy Review by the Justice Project. 47 Brandon Garrett and Peter Neufeld (2009) have analyzed trial transcripts for 137 cases in which the conviction of the defendant has been overturned. This comprehensive review determined that in 60% of these cases, the conviction was due, at least in part, to invalid testimony. “Invalid” testimony is defined to mean testimony not supported by the empirical data in evidence. The reliability of the underlying forensic methodology was not considered. They note that “[u]nfortunately, our criminal [judicial] system largely failed to police the invalid testimony during these trials.” 48

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The 2009 report on forensic sciences by the National Research Council of the National Academies concurs with this observation. 49 In this 237 page report, the National Research Council recognizes pervasive systemic problems with forensic evidence and its use. DNA Based Exonerations In addition to exonerating convicted defendants, forensic DNA analysis is being used extensively for criminal investigation. The National Institute for Justice reported a 1995 study of the investigative used of DNA testing. Data was compiled from a telephone survey of the FBI and 18 other forensic laboratories. The survey covered data from the start of DNA testing by each laboratory (between 1986 and 1992). DNA analysis of evidence in 21,621 cases resulted in 16% inconclusive findings due to sample size or deterioration, 23% suspect exclusion, and the remaining 61% were not excluded. 50 There was no data suggesting what percentage of the “not excluded” resulted in positive suspect inclusion as opposed to indeterminate findings. No standards have be adopted to differentiate between positive exclusion, positive identification and indeterminate. Also, no data was available for the type of offence involved nor the ultimate outcome of the case. Since 1996, sensitivity and selectivity of DNA analysis has improved substantially. Establishment of the CODIS STR allele database in 2001 has improved the confidence level of exclusion/inclusion. One would expect a current study, if performed, would find more extensive use and more definitive results. However, forensic DNA testing is of such high demand that many law enforcement agencies have extremely long backlogs in testing. 51 Of course, lack of a suspect’s DNA on a particular item found at the crime scene, does not prove that the suspect was absent or did not participate in the crime. His DNA might have been found on other evidence had it been collected and analyzed. One can envision several reasons why a suspect’s DNA would not found in a semen sample from a particular condom at a

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rape scene. It seems odd that Alaska would accept DNA evidence as dispositive of innocence in the Osborne case. Justice Scalia concurred: “It is very strange. Why did they do that [concede that ‘DNA would be absolutely slam-dunk dispositive of innocence’], I wonder.” 52 Table 1 lists the 17 death row inmates exonerated, at least in part, by post-conviction DNA evidence and that met the criteria established by Death Penalty Information Center: “Defendants must have been convicted, sentenced to death and subsequently either a) their conviction was overturned and i) they were acquitted at re-trial or ii) all charges were dropped, [or] b) they were given an absolute pardon by the governor based on new evidence of innocence.” 53 More that half of the following exoneration cases involve alleged or proven cases of law enforcement or prosecutorial improprieties in the context of analysis or presentation of the DNA evidence (denoted by asterisk in Table 1). Table 1. People sentenced to death in which DNA played a role in their exoneration as of 18 September, 2008. Name State Race† Convicted Exonerated Years *Kirk Bloodsworth MD W 1984 1993 9 *Rolando Cruz IL L 1985 1995 10 *Alejandro Hernandez IL L 1985 1995 10 *Verneal Jimerson IL B 1985 1996 11 *Dennis Williams IL B 1979 1996 17 Robert Lee Miller, Jr. OK B 1988 1998 10 Ronald Williamson OK W 1988 1999 11 *Ronald Jones IL B 1989 1999 10 *Earl Washington VA B 1984 2000 16 Frank L. Smith (died) FL B 1986 2000 14 Charles Fain ID W 1983 2001 18 Ray Krone AZ W 1992 2002 10 *Nicholas Yarris PA W 1982 2003 21 *Ryan Matthews LA B 1999 2004 5 *Curtis McCarty OK W 1986 2007 21 Kennedy Brewer MS B 1995 2008 13 Michael Blair TX O 1994 2008 14 † W, Caucasian; L, Latino; B, Black, O, Oriental (Thai). http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row Action C. Dismissed Acquitted C. Dismissed C. Dismissed C. Dismissed C. Dismissed C. Dismissed C. Dismissed Pardoned C. Dismissed C. Dismissed C. Dismissed C. Dismissed C. Dismissed C. Dismissed C. Dismissed C. Dismissed

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The exonerees: 54 1. Kirk Bloodswoth was convicted and sentenced to death for the rape and murder of a young girl primarily on the basis of faulty eyewitness testimony. He was given a new trial, convicted and received a reduced sentenced of life after it was discovered that the state failed to disclose exculpatory evidence. Subsequent DNA testing was agreed to by the prosecution. PCR (DQ alpha) testing by Forensic Science Associates confirmed his exclusion. 2. Roland Cruz was convicted and sentenced to death for the kidnapping and murder of a young girl. He became a suspect as being an acquaintance of Hernandez (see 3. below). Cruz told the police of “visions” which had similarities to the crime. Cruz and Hernandez were both convicted in the same trial based in part on the testimony of co-defendant Brian Dugan. PCR testing implicated Dugan and excluded both Cruz and Hernandez. Several law enforcement and prosecution personnel were charged due to obstruction of justice. 55 3. Alejandro Hernandez was sentenced to death along with Rolando Cruz for the murder of Jeanine Nicarico in 1983. “Only his own indirect statements … linked Hernandez, who is borderline retarded, to the killing. DNA [test results] implicated Brian Dugan.” 56 4. Verneal Jimerson was sentenced to death in 1985 for a 1978 murder. The main evidence against him was a witness statement. The witness had been encouraged to recant her previous testimony as part of a plea bargain. 57 5. Dennis Williams was the convicted in 1978 for the same murder as Jimerson. Four men were convicted of killing the young couple, while only Jimerson and Williams were sentenced to death. DNA tests exonerated all four men, and another man confessed to the crime. New medias reports suggested that the four were railroaded due to the public outrage of the crime. 58

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6. Robert Lee Miller, Jr. was convicted of the rape and murder of two elderly women in 1988. He received two death sentences and a total sentence of 725 years. His conviction was apparently based on confession after an 8-1/2 hour interrogation. His statement had over 100 inconsistencies, he maintained that “he was the Lone Ranger and an Indian warrior, and that his family had visionary powers.” 59 His pro se 42 U.S.C. §1983 action was dismissed in 1996. 60 He was granted a new trial because DNA evidence implicated a suspect who was already in prison on similar charges. Miller’s charges were dismissed, reinstated on appeal, and ultimately dropped. (See 15. Curtis Edward McCarty below.) 7. Ronald Williamson was convicted in 1988 of murder and rape of Deborah Sue Carter, which occurred in 1982. The conviction was overturned in 1997 due to ineffectiveness of counsel. 61 DNA evidence exonerated Williamson in 1999 and implicated a former suspect in the case. Williamson’s story is the subject of John Grisham’s THE INNOCENT MAN (Doubleday 2006). 8. Ronald Jones was convicted of rape and murder. Jones claimed he was beaten by police and he signed a confession which was the main factor in his conviction. Forensic DNA testing excluded Jones. Jones was awarded $140,000 compensation by Illinois. 9. Earl Washington was convinced to confess to rape and murder of a woman after he had been arrested for an unrelated crime. He was sentenced to death. Forensic DNA tests confirmed that Washington did not rape the victim, who was able to state that there had been only a single perpetrator before dying. Virginia Governor Wilder commuted Washington's sentence to life in 1994. In 2000, additional DNA tests were ordered and the results again excluded Washington as the rapist. Virginia Governor Gilmore pardoned Washington based upon the additional confirming DNA evidence in 2000.

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10. Frank Lee Smith was convicted of rape and murder of an 8-year-old girl and sentenced to death. After the trial, the chief eyewitness recanted her testimony; however, the conviction stood but he was granted a stay. Forensic DNA tests exonerated Smith. In 2000, all charges were dropped; however, he died while in custody. 11. Charles Irvin Fain was convicted and sentenced to death for kidnapping, sexual assault, and drowning of a 9-year-old girl. His conviction was based primarily on microscopic examination of hair and statements by fellow convicts, in spite of a reasonable alibi. Mitochondrial DNA analysis of the hair excluded Fain. Mitochondrial DNA is maternal DNA and is present in hair samples, whereas nuclear DNA is only present if the hair has skin cells attached to it. 12. Ray Krone was first convicted and sentenced to death in 1992 “based largely on circumstantial evidence and testimony that bite marks on the victim matched Krone’s teeth.” 62 In a new trial he was again convicted but received a life sentence. 62 His postconviction attorney obtained a court order for DNA tests which exonerated Krone and implicated another man. He was awarded at total of $4,400,000 in compensation. 13. Nicholas Yarris hypothetically implicated himself in the murder of a 32-year-old woman as a strategy to escape a minor charge. Another inmate provided false information against him in return for reduced sentence and conjugal visits. Yarris was convicted base on this testimony and semen tested only for blood type. The prosecution refused the defense access to exculpatory evidence. The Pennsylvania Federal Defender Office was ultimately able to arrange for DNA testing which excluded Yarris. Yarris settled his civil rights law suit for an undisclosed amount thought to be in the several million dollar range.

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14. Ryan Matthews was convicted and sentenced to death in 1999 for killing a convenience store owner after a three-day trial and a several hour jury deliberation. There was a question of ineffectiveness of counsel. Four years later, the evidence was reexamined and Forensic DNA testing excluded Mathews and implicated an individual who was already serving time for a murder that occurred within blocks and shortly after that for which Matthews had been convicted. All of Matthews charges were dropped based on the new DNA results and suppression of evidence by the prosecution. 15. Curtis Edward McCarty was convicted and sentenced to death for rape and murder in each of three trials. It was later determined that the police forensics investigator gave false testimony, altered her research results, and destroyed or willfully lost evidence. Subsequent DNA testing excluded McCarty and implicated another person. McCarty and Robert Lee Miller, Jr. (above) were both casualties of the fraudulent testimony of police chemist Joyce Gilchrist. 63 16. Kennedy Brewer was convicted and sentenced to death for the murder and rape of a 3-yearold girl. Investigation by the Innocence Project 10 years later showed that DNA excluded Brewer and implicated a former suspect whose reference blood sample had been fortuitously preserved. Initially a new trial based upon the new DNA evidence was denied, eventually a new trial was granted, and the charges were dropped. 17. Michael Blair was convicted and sentenced to death for the 1993 murder of a 7-year old girl. Re-investigation by prosecutor's office found that new DNA analysis excluded Blair. The original conviction was overturned and a new trial ordered. District Attorney elected not to pursue the matter. All charges were dropped; however, Blair remains incarcerated for life for other crimes.

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Demystifying DNA Arthur C. Clark noted that “any sufficiently advanced technology is indistinguishable from magic.” 64 Some may consider DNA analysis magic. Such an attitude does not serve justice. Those that embrace technology may accept questionable science inappropriately, while those that are skeptical may disregard valid findings. Inappropriate reliance may be placed on the perceived veracity and qualifications of an expert witness who arguably has a bias. Expert witnesses are required to form an opinion and, once formed, they may defend their opinion out of proportion to its merits to bolster their personal status or prejudices. Consequently, a rather detailed discussion of the characteristics DNA is merited to form a contextual basis in which to consider forensic techniques and their limitations. 65 Some technical terminology to communicate complex ideas is unfortunately required; however, it is defined by context or explanation. Improprieties in prosecutional conduct and witness bias in data analysis will not be considered as they have been extensively reviewed elsewhere. Unless considerable care is taken, people release biological material almost continuously, and the material is transferred at the scene of a crime. This is in line with 20th-century forensic scientist Edmond Locard’s eponymous exchange principle: “with contact between two items, there will be an exchange.” 66 Estimates vary; however, on the order of 50 million skin cells are spontaneously sloughed off a human body every day. 67 As discussed below, as few as 15 cells can provide a sufficient sample size to provide positive identification of an individual. Unfortunately, each person who has spent mere minutes in proximity to the victim, crime scene, or evidence has likely contributed this requisite amount of DNA. Presence of this extraneous DNA can lead to waste amounting to thousands of investigation hours. 68

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DNA deposition that is not spontaneous, e.g., fingernail scrapings from a victim who defended herself, is greatly preferred for forensic analysis. Semen is a particularly concentrated source of DNA, and it is often deposited during the crime. Consequently, rape is particularly amenable to forensic DNA evidence. Even though red blood cells contain no nuclear DNA, blood is also a very good source of DNA. While the causal link is absent rather than present as in rape, non-victim blood is preferred relative to spontaneous surface residue evidence. Biological material on evidence consists of complex molecular (macromolecular) components present in any living organism. These macromolecules can be found in bodily fluids and sloughed or scraped off skin cells. They may be generally divided into several broad categories, for example: lipids, carbohydrates, proteins, nucleic acids, and combinations thereof. Several factors contribute to the potential usefulness of this biological material as trace evidence. The material should be 1) readily deposited during contact, 2) amplifiable with fidelity, 3) highly discriminative, 4) uniformly individualistic, 5) easily analyzed, and 6) environmentally persistent. Lipids, e.g., fats, waxes; carbohydrates, e.g., complex sugars, starches; and proteins are highly discriminative in that they occur in an almost infinite variety. However, they are not usually individualistic. Different cells make different complements of these molecules at different times. Lipids, carbohydrates, and proteins are also not easily analyzed as they vary among themselves as to composition and/or solubility. They cannot be independently amplified; therefore, a relatively large sample is required for analysis. Being very heterogeneous, none of the three groups are consistently persistent in the environment. Lipids, carbohydrates and proteins fail most of the criteria for use in forensic analysis.

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Nucleic acids, as a class, are remarkably uniform and occur as 3 main species: RNA, nuclear DNA, and extra-nuclear DNA. Cells make different RNAs at different times so it is not a reliable source for individualistic data. Ribonucleic acid (RNA) is also a rather unstable molecule: it is not persistent in the environment. Deoxyribonucleic acid (DNA) is the only class of macromolecule that meets all of the criteria above. Both the mother and father contribute DNA to their offspring. Extra-nuclear DNA is exclusively contributed by the maternal line. Extra-nuclear DNA is found in mitochondria (and chloroplasts for photosynthetic organisms, e.g., plants). Extra-nuclear DNA is extremely useful for maternal genealogical studies. Deoxyribonucleic acid forms a double-stranded helical chain of four different composite molecules, nucleotides. Each of these nucleotides contains one of four nitrogen-containing ring molecules, a ribose sugar, and a phosphate group. The four nitrogen-containing molecules are referred to as bases and are adenine (A), guanine (G), thymine (T), and cytosine (C). Adenine is similar to guanine (and closely related to caffeine), while thymine is similar to cytosine. For example in DNA, the nucleotide A (adenosine monophosphate, AMP) has a molecular formula of C10H16N5O5P and contains adenine linked with ribose which is linked with a phosphate group, i.e., a phosphorous atom with 4 oxygen atoms. In the normal double helical structure attributed to Watson and Crick and for which they received the Nobel prize, A pairs with T and G pairs with C. DNA differs from RNA by the absence of a single oxygen atom, i.e. “deoxy.” This lack of an oxygen atom on the ribose portion is biologically very significant. DNA and RNA are not found within the same molecule though they can transiently pair with each other. DNA is much more stable than RNA. In each living cell, DNA is the repository for genetic information, while RNA serves as a messenger to direct the synthesis of proteins, which in turn satisfy the normal

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needs and functions of the cell. With very few exceptions, every cell within an individual contains the same DNA. DNA is a long-term genetic repository. Consider the expression “as rare as hens’ teeth.” Chickens do not have teeth; however, chicken tissue can be made to grow teeth demonstrating that, while dormant, all of the genetic information required for producing teeth is present. Interestingly, the enzymes that process nucleic acids are normally opposite in stability from their substrate. Enzymes that process DNA are normally ephemeral, while those that process RNA are extremely stable. One standard laboratory procedure to rid a DNA sample of RNA contamination is to incubate it with a preparation of RNA-degrading enzyme which has been boiled to eliminate contamination from DNA-degrading enzymes. The stability of DNA is both good and bad for forensic analysis. Biologically active DNA has been isolated from prehistoric samples. DNA can be boiled, treated with strong solutions of caustic chemicals and generally mistreated with impunity. Absent microbial degradation or extended exposure to strong ultraviolet light, it may remain available for forensic analysis for years, essentially indefinitely under proper storage conditions. However, it can also aerosolize and spread throughout a laboratory. For years, genetic laboratories working on various mammalian systems were cloning and analyzing genes from a common laboratory yeast instead of their target organism because of unforeseen DNA contamination. Rigid experimental controls are mandated and essential to guard against DNA contamination in both research and forensic laboratories. Heilbronn, Germany, police put in 16,000 hours of overtime investigating the 2007 shooting homicide of a police officer. The suspect seemed to be a female serial killer, a rarity, who was also implicated in 40 various crimes during a period of over 14 years. The “Phantom of Heilbronn” was neither linked with a specific region, nor accomplices. After the phantom’s

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DNA was found during identification of a male burn victim, it was discovered that DNA from all of the evidence had been collected using double-bagged sterile cotton swabs from a single source. In similar situations, contaminating DNA was traced to a single worker in a manufacturing facility. Contamination can occur during growth, processing, or packaging of cotton. 68 This underscores the need for controls during forensic DNA analysis. Unless swabs have been subjected to intense radiation and certified for DNA work, swabs can be contaminated. The testing of representative samples from a batch of laboratory supplies can miss random contamination and can potentially compromise non-tested supplies. 69 There are between 3 and 3.5 billion DNA base pairs (bp) in the haploid human genome, i.e., one set of the 23 pairs of chromosomes. A rough draft of the sequence was announced in 2000, with major reversions in 2003 and 2006. 70 Differences in the reports of total length are attributed to the highly repetitive DNA near the center of each chromosome, which is very hard to sequence, and the use of several different donors to form a composite genome. The cost of the publicly-funded Human Genome Project was on the order of $3 billion to construct the first essentially complete sequence. The current goal is to sequence the total DNA of an individual human for $1,000. 71 A molecule of DNA can be extraordinarily long. In its normal doublestranded helical configuration, DNA is measured in base pairs, i.e., A-T and G-C form individual base pairs. The largest human chromosome (chromosome I) is on the order of 250 million bp. Fully extended, this molecule is about 3.3 inches long. Of course, it is fairly narrow. Human cells are microscopic and, in addition to other cellular constituents, each cell contains 46 chromosomes. Consequently the DNA molecules are folded back upon themselves to package them within the cell. As DNA information is needed, the strands are unpackaged, used, and then repackaged. An analogy may help visualize the relative proportions of chromosome I. Consider

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sewing thread of a typical diameter of 0.01 inch, were it proportional to chromosome I, it would be 30 miles long. 72 The mutability of DNA is also very important toward its utility in individualizing a subject. If DNA were always constant or if it were always changing, it would be of little value for forensic analysis. As it is, there is a continuum of the propensity for DNA to change. Changes in DNA sequence are referred to as mutations, they can be induced by physical factors, e.g., ionizing radiation, UV light, chemicals, or biological factors, e.g., errors in DNA biosynthetic or repair enzymes. Cell recognizes and repairs DNA damage. For example, number of organisms respond to UV damage by inducing a set of repair enzymes. If the organism is in the light, it induces a repair system with high fidelity. If it is kept in the dark, it induces an error-prone repair system that incorporates mutations into the DNA. Specific sequences, “hot spots,” of DNA are more prone to mutation than others, while changes have never been observed in some other regions. If a mutation is detrimental, e.g., lethal or cancer causing, it has a tendency to not be passed on in the population. Whereas an advantageous mutation, e.g., disease resistance, can become more prominent by spreading out through successive generations in the population. Because we are diploid, detrimental traits can be passed on, if the other gene copy compensates for the trait. There are examples of mutations producing detrimental effects in one environmental setting and that produce beneficial effects in a different one. Some DNA sequences are in common among all human beings, some are peculiar to a particular continent, an ethnic group, a regional subdivision, a family, or an individual. Because both parents contribute to nuclear DNA of their offspring, individual differences can be more pronounced than historical differences. Sequence differences useful for individualization are determined empirically. Comparison of complete DNA sequences from a

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large number people would allow rational choice of specific sequences to discriminate between groups or individuals. Failing access to sufficient sequence data, more or less random sequences have been tested. There are a great number of studies reporting the utility of various sequences for genealogical or forensic uses. In addition to mutation, changes in DNA can occur though the genetic recombination that occurs shortly after fertilization of the egg by the sperm DNA. Recombination happens when two different strands separate, transiently pair, break, and reform. On rare occasions, regions of repeated DNA pair out of frame to each other so that the number of repeats are different in the progeny than in either parent. When these repeats are short (2 to 10 bases long), they can form diagnostic genetic markers of short tandem repeats (STR). The 13 CODIS core STR alleles are such repeats and were adopted in 2001. Over 17,000 scientific papers dealing with STR loci are listed on PubMed as being published since 2001. 73 There are several kinds of molecular bonds associated with DNA, most significant to forensics are (1) covalent, (2) ionic, and (3) hydrogen bonds. (1) Covalent bonds form the structure of molecules, they can be strong or weak. Igniting the atoms of hydrogen in an atmosphere of oxygen will cause an explosion to form stable molecules of H2O, i.e., water. Some unstable molecules will spontaneously explode and break covalent bonds. DNA forms a stable molecule which contributes to its persistence. (2) DNA is an acid, it has a net negative charge due to its phosphate groups. As such it can form an ionic bond with a positively charged atom. Ionic bonds are often strong but can be transient. Simple mixing of equal proportions of muriatic acid (swimming pool cleaner) with lye, both highly toxic and corrosive, results in a drinkable solution of table salt (HCl + NaOH ⇒ NaCl + H2O). Adding an excess of magnesium ions (Mg+2) to the solution displaces the Na and

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forms MgCL2. The ionic nature of DNA helps it to be highly soluble, facilitating forensic analysis. DNA exists primarily as a salt under physiological conditions. Each base pair has two negatively charged phosphate groups. These charges overwhelm all other molecular charges within the DNA molecule, resulting in a uniform charge that is proportional to the length of the molecule regardless of its sequence. This property allows DNA to be fractionated in an electrical field (electrophoresis) based upon length alone. The different fragments that are generated in analysis of the 13 CODIS core STR alleles can be unambiguously identified using automated procedures. (3) Hydrogen bonds are rather weak associations between molecules. The molecular charges of a water molecule are not symmetrical. Consequently, if atomic distances and confirmations are appropriate, a H-group on one molecule will associate with an OH-group on another molecule in an aqueous solution due to the orientation of the water molecules. In DNA, the A-T pair consists of 2 hydrogen bonds while the G-C pair has 3. Further, the bonds are asymmetrical and directional, i.e., A does not pair with A and the doubled strands of DNA form back-to-front. Yet another crucial factor for forensic analysis is that the hydrogen bonds can be reversibly broken by heat or alkaline treatment, while the covalent bonds remain stable under these same conditions. DNA is synthesized in a semi-conservative fashion. One strand is used as a template, i.e., conserved, while the other strand is newly formed. The hydrogen bonds are directional and DNA is synthesized in a directional manner. For example, double-stranded DNA from a suspect’s sample is denatured (separated into individual strands) and reaction components are added. New strands are formed according to the two template molecules (separated strands) and,

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thus, two new double-stranded DNA molecules are formed that are identical to the starting material. Probes and primers, in DNA parlance, are short strands of single-stranded DNA, usually shorter than 100 bases long. A probe will pair with its complement or target DNA sequence. Typically the probe is labeled with an indicator molecule or atom and mixed with the target DNA which had previously been denatured and affixed to a solid support, e.g., a plastic membrane, such that the nucleotide bases are free to form hydrogen bonds with those of the probe. The excess probe is washed off the membrane and the probe is visualized to demonstrate the presence of that particular sequence on the target sample. This is the basis for Southern hybridization analysis and the related DQ alpha forensic analysis. If a probe is used to initiate synthesis of DNA, it is referred to as a primer. Briefly, target double-stranded DNA is mixed with the primer, reaction components, and a thermal stable enzyme (DNA polymerase [poly: many, mer: unit, ase: an enzyme, here one that forms a many unit molecule from individual units]). The mixture is heated to denature the target DNA, cooled to allow the primer to find and bind (anneal) to the target, and then incubated to allow synthesis of the new strand of DNA. If two primers that flank a region of interest are chosen to synthesize DNA toward each other, that region will be amplified. The PCR experiment consists of multiple cycles of denaturation, annealing, and synthesis using flanking primers. The number of fragments formed increases logarithmically, each with the precise length of the region of interest. In this way a particular CODIS STR allele is amplified so that the number of short tandem repeats can be determined by length comparison after electrophoresis. Each base added to the sequence of a probe or primer increases the specificity by a factor of 4. There is about a 1 in a billion chance that two random 15-base probes would have the same

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sequence. Very short probes can be used to identify unique sequences on subject DNA. For Southern hybridization, it is usually not difficult to find a 20 or 22 base probe that will bind uniquely to human DNA. However, to find a pair of primers that will make an analyzable PCR fragment, computer programs analyzing the target sequence are preferred. There are a number of different approaches available for DNA analysis. Basically they involve various combinations of amplification, separation, and comparison. Target DNA is either unknown, i.e., its origin is to be determined, or reference, i.e., a sample of a known source. Hybridizing DNA, whether a probe or primer, is used to infer the sequence or structure of the target DNA. Amplification of either the target or hybridizing DNA or both is normally required and achieved by chemical synthesis or PCR though other techniques have been used in the past. Separation of either or both target or hybridizing DNA is normally effected by fractionating the sample by electrophoresis. Retardation of DNA fragments proportionally to their length facilitates fractionation and is accomplished by electrophoresing the sample through a gel matrix or capillary tube. Comparison requires visualization by labeling the DNA to determine the actual DNA sequence, discrete sections of DNA sequence, or the physical length of the DNA. Restriction Fragment Length Polymorphism (RFLP) analysis is based on the principle that two different samples of DNA will differ in specific sequences or lengths of certain regions between these specific sequences. “Restriction” is derived from the enzyme “DNA restriction endonuclease.” This is a class of enzymes that cut DNA (nuclease) within (endo-) a strand at only certain recognition sequences (restricted). They appear to have evolved as a defense or, in some cases, an addiction mechanism within microorganisms. DNA can enter the cell of a microorganism from the environment or through cell-cell contact. If it is parasitic DNA, e.g., a virus, it can take over the cell’s metabolism to replicate itself to the cell’s detriment. However, if

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the cell distinguishes between its own DNA and foreign DNA, it has a chance to destroy the invading DNA. This is achieved by a pair of enzymes, an endonuclease and its cognate methylase. The endonuclease recognizes a short DNA sequence and cuts the fragment. Once cut, normal cellular exonucleases degrade the fragment from the freshly cut ends. However, the cell’s indigenous DNA is protected by a modification of the recognition sequence that does not impact the functionality of the DNA. Normally this involves placement of a methyl group (CH3) on one of the nucleotide bases of the recognition sequence. Addiction occurs when the invading DNA has an endonuclease/methylase pair where the endonuclease is more persistent than the methylase. The methylase protects the invading DNA and the cellular DNA; however, if the host cell is cured of the parasitic DNA, eventually the methylase degrades and the cell dies because the restriction endonuclease destroys the cellular DNA. Only cells containing the parasitic DNA survive. Since the discovery of the first restriction endonuclease in 1968, over 900 different ones have been described. Normally, relatively large amounts of high quality and relatively pure DNA are required for RFLP analysis. The DNA in the unknown and reference are digested and separated on a gel. The DNA fragments run as bands of particular lengths as determined by size standards run at the same time. All bands can be visualized directly by staining the gel, or specific bands can be visualized by transferring the DNA to a membrane and hybridizing to probe DNA specific for the allele being tested (Southern analysis). Limitations occur where there are differences in the samples not related to the DNA. If the DNA is specifically modified (methylated) or generally modified through sample contaminants that bind to the DNA during purification, it may not digest well. The restriction nuclease enzymes are generally not robust, their activity can be lost over relatively short times or through sample contamination. The specificity of some restriction

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endonucleases for their particular recognition sequences can be altered by the salt concentration of the sample. Frequently, different enzymes are used to compare unknown samples with reference samples. If none of the enzymes digest one sample, it is clear that the sample is defective. However, If one enzyme is subject to adverse sample conditions while an other is not, the analysis appears to have worked; however, the samples appear to be different, i.e. a false negative. DNA Forensic Testing Forensic DNA methods rely on various combinations DNA techniques of separation, amplification, discrimination, and visualization. 1) Dot blotting, one of the first techniques, involves basic DNA hybridization premised on

DNA base pairing. Sample DNA, collected from evidence in conjunction with the crime, is neither separated nor amplification. Discrimination is achieved by hybridizing this target DNA to probe DNA isolated from suspects or victims. The target DNA is usually immobilized to a membrane. The probe is labeled to allow visualization of the results. Dot blotting is still used to identify single base change variants. Synthetic oligonucleotide probes can identify known variations within a gene, i.e., alleles. It is extremely useful for, e.g., identifying alleles associated with a risk of certain cancers; however, databases have not be developed for general forensic use. Variations on Dot blotting include PCR amplification of the sample DNA, followed by its hybridization to probe DNA, e.g., DQ-Alpha, immobilized to membrane. This is sometimes referred to as reverse dot blotting. The potential for individualization using dot blotting is potentially greater that that using short tandem repeats (see below); however, a greater number of markers may be required and it is not as amenable to procedural streamlining.

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2)

Next to evolve was RFLP analysis. Without amplification, target DNA can be

specifically fragmented, separated by electrophoresis. Then it is hybridized to probe DNA and visualized as in dot blotting. Basic research utilized RFLP analysis without hybridization; however, forensic evidence is usually heterogeneous and human DNA is too complex to allow this use in forensics. Forensic RFLP analysis is generally understood to include amplification because of sample requirements. Sample DNA from evidence is amplified by PCR using primers directed toward invariant DNA sequences conserved within the human population. This amplified DNA forms long strands that are then specifically fragmented with DNA restriction endonucleases. The amplified, fragmented DNA is separated by electrophoresis and hybridized and visualized as above. This procedure has the advantage of detecting both differences the lengths of analogous fragments and single DNA base differences in the enzyme recognition sequence. However, the latter requires additional experimentation for verification. 3) DNA sequencing is often used where there are a number of single base changes fairly

close together. DNA sequence analysis is appropriate for single nucleotide polymorphism (SNP; single base differences) of a region of relatively dense mutations that are relatively conserved and not subject to genetic recombination. An example of an appropriate region is the genetic regulatory control region of mitochondrial DNA (mtDNA). It is a fairly short region, 1.1 kb. While mutations in it may cause problems with the expression of metabolic enzymes, they do not lead to defective enzymes, which may be lethal. Mitochondrial DNA is not subject to meiotic recombination, it is exclusively inherited from the maternal parent. There is a much greater copy number of mtDNA genes relative to nuclear DNA; consequently mtDNA analysis can be used for samples which are intractable to nuclear DNA analysis, e.g., teeth, bones, hair without attached follicle tissue.

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4)

Short tandem repeat (STR) analysis form the basis for the majority of current forensic

DNA testing. As in RFLP analysis, differences in fragment lengths are detected; however, the steps of enzymatic digestion and hybridization are eliminated. The PCR primers are chosen from invariant DNA sequences that flank a region that has a variable number of repeated sequences. Relatively subtle variations in STR analyses are usually denoted by descriptive acronyms or allele designations; these are sometimes touted or perceived as being momentous advances. Speed, economy, standardization of techniques, and partial automation are the main advantages of STR analyses. The efficiency of STR analyses allows the establishment of mammoth data bases, e.g., the CODIS STR database had over 5 million offender entries as of October 2007. 74 Such a database can be very useful; however, it is locked into the core markers. Newly discovered, more probative sequences would require retesting all of the samples. Consequently, as an initial screen, the 13 core markers will continue to be extremely helpful for preliminary suspect identification and exclusion; however, additional tests will probably be required for samples of specific target and probe DNA from the individuals involved. Manufacture claims, substantiated by user reports, show that multiple determinations can be run simultaneously in a single test in approximately 5 hours from start to finish. 75 In contrast, standard procedures in a research setting that involve gel electrophoresis, hybridization, and detection can be time consuming and expensive. Gel electrophoresis of DNA can be accomplished in a matter of minutes for short pieces; however, resolution improves with increasing separation times. Electrophoretic separation of chromosomes can take a week or more. DNA hybridization usually takes as long as 24 hours. Visualization of results can take a

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week or more for autoradiography of weak signals. Different tests on each are performed separately. Specific examples of forensic DNA tests DQ-Alpha involves DNA dot blotting after amplification of target DNA. The target DNA is generated from as few as 50 cells in the sample (about 0.3 ng DNA) as opposed to standard RFLP analysis which usually requires at least 1 ng sample DNA. The amplified target DNA is hybridized to 2 strips. One strip contains probes for the various DQ alpha locus, i.e., alleles of the gene encoding one of two components of a cell surface receptor protein essential for the immune system. The other strip contains probe DNA for alleles of 5 other genes (LDLR, GYPA, HBGG, D7S8, and GC). In Osborne, the used condom was subjected to DQ-Alpha DNA testing. “The results excluded K. G. Jackson, and James Hunter … and showed that the sperm had the same DQ-Alpha type as Osborne.” However, this pattern “can be expected in one of every 6 or 7 black men.” Osborne requested to “subject the evidence to … Short Tandem Repeat (‘STR’) analysis and Mitochondrial DNA (‘mtDNA’) analysis.” The STR analysis “has the power to produce a far more specific genetic profile - one shared by one in a billion people, rather than one in 6 or 7.” 76 “Touch DNA” or “low copy number” DNA (LCN) involves STR analysis with increase sensitivity to allow screening of as few as 15 cells. Typically STR protocols call for 28 PCR cycles; LCN protocols call for 34 or more PCR cycles. This theoretically increases sensitivity by a factor of 64 (26); however, the sample DNA is at such a low concentration that the primer sequences often cannot pair with the target sequence to allow proper amplification. Artifacts occur as absence of expected fragments or presence of unexpected fragments. This procedure requires enhanced guidelines for valid analysis of the results. 77 Touch DNA has received

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national media attention as Boulder County District Attorney Mary Lacy was reported to have said that touch DNA tests on skin cells left behind on JonBenet Ramsey’s long underwear point to an “unexplained third party” and not a member of the family. Jacuqin Jaron Byrd was convicted, in part, with touch DNA on March 22, 2007 of the January 26, 2006, murder of Sara Boones. 78 A hammer, scissors, and broken knife found at the scene were consistent with the weapons used to bludgeon and stab the victim. While the items had not been cleaned of palm and finger prints (not matching Byrd), there was no evidence of any blood on them. 79 There was DNA that provided a partial profile upon extended cycles of touch DNA PCR. Expert testimony stated that Byrd could not be excluded from the profiles and that the chance of a randomly selected African American not being exclude was 1 in 62 million (scissors) or 1 in 1.9 million (hammer). 80 Byrd had previously worked with the firm at that location. Without examining the trial transcripts, the published court documents seem to raise more questions than they answer. Amplified fragment length polymorphism (AmpFLP) is a technique in which the sample DNA is digested with a restriction endonuclease, ligated (enzymatically joined end-to-end) to complementary adaptors, and amplified by PCR with primers that are designed to pair with the adaptors. The primers can be pre-labeled with fluorescent moieties and the resultant fragment can be directly visualized after electrophoresis. In other PCR-based, RFLP analyses described above primers are empirically chosen to pair with invariant sequences outside of the region to be digested. AmpFLP has two main advantages, 1) the primer sequence can be made to exactly match the sequence of the adaptors ligated to the restriction fragment and 2) the fragment is labeled so that an additional labeling step can be eliminated. The drawbacks include 1) the sample DNA has to be purified sufficiently to allow enzymatic digestion, 2) ligation is subject to

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failure or can introduce contamination, and 3) even using differential restriction endonucleases, extraneous fragments along with ligated combinations of the target fragment are amplified. Small DNA samples are often lost during purification and, even with purification, some DNA cannot be digested. Comparison of the resultant fragment sizes to the expected length can minimize the impact of artifacts. Y- STRs are short tandem repeats located on the male-specific Y chromosome. The Y chromosome originated from the X chromosome through deletion events. While much of the Y chromosome has sequences in common with the X chromosome, many sequences encoding male sex determinants and spermatogenesis are unique. The Y chromosome and, consequently, its STRs are inherited through the paternal line with essentially no genetic recombination. Usually in a sexual assault case, vaginal swabs contain an overwhelming amount of victim DNA. Differential extraction to isolate the male component is not reliable. Female alleles predominate in standard STR analysis, often masking any signal from the male alleles. This is not a problem with Y-STR analysis as there is no competing female DNA sequences. Greatly enhanced sensitivity can be achieved even in non-sexual assault cases because of the specificity for the male-only target DNA. 81 An internet search revealed several exonerations based on Y-STR analyses of men convicted of aggravate rape or child molestation/rape/sodomy: James Douglas Waller, Steven Charles Phillips, Robert McClendon, Wilton Dedge, and Charles Allen Chatman. For example, Charles Chatman was convicted of aggravated rape and served 27 years of a 99 year sentence. In 2004 he was told that a third DNA test would consume all the remaining evidence generated by the victim’s rape kit. He decided to wait until DNA technology could be improved. When it became available, he chose the Y-STR test because of its requirement for very small amounts of

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DNA, and compared to standard STR tests it is “substantially more probative” sensu 18 U.S.C. § 3600. The test showed that sperm extracted from the victim could not have come from Chatman. 82 He was previously denied parole three times because he refused to admit his guilt before the Y-STR DNA evidence exonerated him. 83 Charges against Chatman were dismissed on 26 February 2008. 84 This suggests an ancillary question: how many innocent men remain in prison because they refuse to admit guilt in order to achieve parole eligibility as Osborn did admit guilt? Molecular basis of forensic DNA testing errors Nucleotide base-pairing mismatches are a source of error in forensic DNA tests involving hybridization or PCR. All chemical or biochemical reactions are a matter of equilibrium. A single molecule of water has two hydrogen atoms and one oxygen atom. The reaction is written as 2H + O ⇔ H2O. The double pointed arrow denotes that the reaction goes in both directions. A hydrogen atom in one molecule of water can exchange for another hydrogen atom spontaneously. Water is not a static molecule: DNA is even less so. In a living cell, there are enzymes that recognize and repair spontaneous breaks in the strands of DNA, and regions of double stranded DNA periodically separate to single strands and then rejoin. It is easy to forget the principle of equilibrium when talking about a perfect DNA match. A match is observed as either plus or minus. It is more precise to say that when equilibrium conditions favor a reaction product such that the product is detectible, there is a positive result. Spurious results occur constantly; however, as long as they remain at undetectable background levels, they do not interfere. The polymerase chain reaction confounds the issue. An error early in the reaction can rise above the background level and be detectable by the end of the reaction. As few as 10 cycles of product formation can often be observed: PCR normally incorporates between 20 and

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40 cycles. This underscores the need for experimental replication to avoid random matches. However, a fairly close match may consistently show up as positive. A method referred to as “real time PCR” labels the reaction products from each cycle and monitors them during PCR. If a product is formed early in the cycles and increases logarithmically until one of the reaction components is depleted, it is a positive result. Negative results are observed when the reaction product arises later in the reaction. The final amount of product may be equivalent in either case. Real time PCR is not yet amenable to forensic testing. Several results can obtain from a forensic DNA analysis. A perfect match would consist of two bands of the proper length for each marker. Four bands would suggest a mixed sample: it would qualify for a perfect match if 2 of the bands match the victim. It is conceivable that there could be a single band for a particular marker which could result if that marker were derived from a common ancestor. Two band of the equal length can be detected as there is twice the amount of DNA expected in the band; however, integration of the signal intensity is less precise and somewhat problematical compared to simple length determination. Even on band difference should be sufficient to qualify as a non-match, for exclusion purposes. PCR experiments can fail due to variation in reaction conditions unrelated to the DNA itself. Usually, the reaction fails completely; however, it is possible for anomalous bands to be produced in some experiment. In a strict research environment, such failures are ignored and only the experiments that give apparently valid results are used for analysis. While it may be tempting to use only confirmatory data, forensic analysis should preclude selective retention of results. The expense in time and money for sample analysis tends to limit the number of experimental replications. A single determination is inadequate in a research setting, nor is it acceptable to replicate the analysis until an expected result is observed. The need to specify the

35

number of replications to achieve the level of confidence required before the analysis ever begins, while frequently ignored, cannot be overstressed. The design can be based upon preliminary tests where the results are not used for analysis. Forensic analysis should be held to a higher standard of experimental design relative to basic research as basic research, if significant, is self correcting because it is confirmed independently by others. Temperature, length and sequence of the DNA, and concentration of the DNA each influence a PCR. Typically, DNA is double stranded at room temperature (25° C) and single stranded at almost boiling (95° C). The thermal stable enzyme, DNA polymerase is typically most active at the temperature of hot tap water (60° C). The longer the DNA fragments and the fewer mismatches present, the more stable the pairing. DNA strands from forensic samples can be thousand of bases long and a perfect match, while primers are usually shorter than 50 nucleotides. The concentration of the primer is adjusted so that the number of primer fragments is in great excess relative to the number of sample fragment to promote primer/sample DNA pairs. If the reaction is cooled from the denaturing temperature sufficiently slowly, sample/sample pairs are favored. If it is cooled too rapidly, mismatches will form. DNA is flexible, it can bend back upon itself and form a partially double stranded molecule. The optimal rate of cooling depends on the sequence of the DNA itself. DNA polymerase will only add nucleotides to the 3’-end of a strand paired to another fragment where the other fragment extends out from the primer to form a template. Depending on the type of DNA polymerase used, 10 to 100 nucleotides are added per second at the enzyme’s optimal temperature. 85 This rate is halved at 10 degrees centigrade cooler than optimal and doubled at 10 degrees higher.86 The enzyme is present in the reaction mixture continuously during each cycle of the PCR. Its presence can result in extension of a fragment while it is transiently paired to a mismatched sequence. During

36

the next and subsequent cycles, the fragment made in error is now a better match to the sample DNA and will tend to predominate as each cycle proceeds. Touch DNA (LCN) tests are particularly susceptible to this type of error because of their increased number of PCR cycles. The sequence of 3’-end of the primer is most crucial to product formation. At least two C or G nucleotides are mandated as they make stronger hydrogen bonds relative to A or T. Conclusion United States Supreme Court Justice Souter asked United States Deputy Solicitor General Katyal what the “government’s interest, the United States or that of a State, may be in, in effect, in denying that there should be such a right [to post-conviction evidence].” Mr. Katyal replied that there would not be any interest “as a matter of prosecutorial ethics … if the United States knew that there was some exculpatory material … within its purview (emphasis added).” 87 There seems to be tension between “opening the floodgates” to baseless post-conviction evidentiary requests and legitimate concerns for justice. Regardless whether the Supreme Court finds it a violation of the Constitution, admission of post-conviction DNA evidence appears to becoming established de facto, if not de jure. Absent misfeasance or malfeasance, the current standard of DNA forensic analysis has been objectively shown to be reliable and brings into question other types of evidence. “[N]o forensic method other than nuclear DNA analysis has been rigorously shown to have the capacity to consistently and with a high degree of certainty support conclusions about ‘individualization’ ….” 88 Without access to post-conviction Constitutional rights, the recourse open to those exonerated are either pardoning or reopening the original case and dismissing the charges. Comprehensive video surveillance is not yet a fact in our post-1984 society. Even if it were, advances in computer enhanced graphics would raise questions of video reliability.

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Eyewitness evidence has been shown to be unreliable, 89 fingerprint evidence has been shown to be unreliable, 90 even confessions by the suspects have been shown to be unreliable. 91 No one denies that some innocent people have been convicted and imprisoned. This is despite the long history and tradition that it is preferable for a number of guilty persons go free rather than one innocent be incarcerated. 92 Some claim that no innocent person has been wrongly executed in the modern, post-Furman era. Most notably United States Supreme Court Justice Antonin Scalia maintains that there is no verified case of a wrongful execution. 93 Of course, there can be no verified instances of innocence, as there is no mechanism for establishing innocence “because the criminal justice process officially ends with execution.” 94 The Center on Wrongful Convictions, Northwestern University School of Law goes on to list 39 executions in which there is compelling evidence of innocence or serious doubt about guilt. 95 However, consideration of post-conviction evidence brings with it other concerns. The study of DNA is technology based. Methods improve and are incrementally incorporated into currently accepted forensic standards. Such technological evolution is more publicly visible in certain other fields. Video standards, for example, have progressed through film, VHS, DVD, to the current Blu-Ray DVD, with Betamax and HD-DVD being particularly notable losers. Computers have progressed from mechanical calculating devices, through room-sized vacuumtube monsters, ultimately (so far) to hand-held computers with greater capabilities at reduced cost. There is no reason to think that advances in the current standard of DNA forensics will differ. The 13 CODIS STR loci that form the basis of millions of database entries will likely be augmented. Already, alternate and arguably better STR loci targets are being used, both for forensics and popular genealogy research. Several questions are apparent: how good is good enough? Will current identifications be undermined by future improvements in technology?

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Will expert witnesses differ even more in their interpretations resulting in more confusion for juries? Many, argue and it is the current law of the land, that as long as the accused was afforded a fair and just trial based upon extant facts, the conviction should stand without regard for the truth. It is too expensive in money and court time to continually seek the truth. This seem akin to equating a capital trial with a high school debate competition. Law professors expound that 1) reasonable people can differ in conclusions base upon facts and 2) a good attorney can argue either side of a case. Why should not the more eloquent and persuasive advocate prevail? It is just a side effect that someone forfeits his or her life. It may be that admission of post-conviction evidence will argue more against the death penalty than for justice itself. Once executed, truth is immaterial, at least to those executed. Footnotes: 1. Statement of Attorney General John Ashcroft Concerning the DNA Initiative (Mar. 4, 2002), available at www.tinyurl.com/ashcroftdna. 2. Department of Justice, Post-conviction DNA Testing: Recommendations for Handling Requests 1 (1999) (Post-conviction DNA Testing),” available at http://www.ncjrs.gov/ pdffiles1/nij/177626.pdf 3. Innocent Project, Report 351: Facts on Post-Conviction DNA Exonerations 1 (2008), available at http://www.innocenceproject.org/Content/351.php. 4. District Attorney's Office for the Third Judicial District v. William G. Osborne 2009 WL 208117, 129 S.Ct. 1054, No. 08-6. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit, Brief for the Respondent. January 26, 2009..

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5.

District Attorney's Office for the Third Judicial District v. William G. Osborne No. 08-6, 2009 WL 506273, 44 (2009) (Oral argument 2 March, 2009).

6. 7.

Teague v. Lane 489 U.S. 288, 322 (U.S.Ill.,1989). Steven D. Stewart, Clark County Prosecutor, Roger Keith Coleman: Executed May 20, 1992, 1 (2009), available at http://www.clarkprosecutor.org/html/death/US/coleman175.htm

8.

Laurence Hammack, DNA Confirms Guilt, Roanoke Times, January 13, 2006 (The confirmation that Roger Coleman's DNA was present [at the crime scene] reaffirms the verdict and the sanction), available at http://www.roanoke.com/news/roanoke/wb/xp48157.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Coleman v. Thompson 798 F.Supp. 1209, 1210 (W.D.Va.,1992). Coleman v. Commonwealth, 226 Va. 31 (1983). Coleman v. Virginia, 465 U.S. 1109 (1984). Coleman v. Bass, 484 U.S. 918 (1987). Coleman v. Thompson, No. 88-0125-A (W.D.Va. filed Dec. 6, 1988). Coleman v. Thompson, 895 F.2d 139 (4th Cir.1990). Coleman v. Thompson, 498 U.S. 937, 111 S.Ct. 340 (1990). Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991). Coleman 111 S.Ct. at 2568. Coleman v. Thompson, 501 U.S. 1277, 112 S.Ct. 27, 115 L.Ed.2d 1109 (1991). Coleman 798 F.Supp. at 1210 (Respondents' Exh. 3). Coleman 798 F.Supp. at 1210 -1212.

40

21.

Godschalk v. Montgomery County Dist. Att'y's Office, 177 F. Supp. 2d 366, 370 (E.D. Pa. 2001) (post-conviction due process right to evidence for DNA testing).

22. 23. 24.

18 U.S.C. § 3600 (a)(1)(A) § 3600 (a)(10)(B)(ii, iii). Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

See, e.g., Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). 28 U.S.C. § 2244 (b)(2)(A, B). In Re: Davis --- F.3d --- 2009 WL 1025712 (C.A. 11) Romines v. U.S. 177 F. Supp. 2d 529 (W.D.Va., 2001). United States v. Frady, 456 U.S. 152 (1982). Herrera v. Collins, 506 U.S. 390, 400 (1993) Sanders v. United States, 373 U.S. 1 (1963) Nelson v. Campbell, 541 U.S. 637 (2004); Hill v. McDonough 126 S. Ct. 2096 (2006). 42 U.S.C. § 1997e(a). Lee L. Cameron, Civil Rights: Determining the Appropriate Statute of Limitations for Section 1983 Claims, 61 Notre Dame L. Rev. 440, 453, [FN15] (1986) (The Rules of Decision Act is the statutory authority for adopting a state statute of limitations as federal law. 28 U.S.C. § 1652).

35. 36. 37.

Romines, 177 F. Supp. 2d at 370. Heck v. Humphrey, 512 U.S. 477 (1994). Harvey v. Horan, 2001 WL 419142.

41

38.

Harvey v. Horan 278 F.3d 370, 370 (C.A.4 (Va.), 2002) (there was “no due process right, under Brady, of access to DNA evidence … to prove his innocence”).

39.

Osborne v. Dist. Attorney's Office for Third Judicial Dist., 521 F.3d 1118, 1118 (9th Cir. 2008).

40.

District Attorney's Office for Third Judicial Dist. v. Osborne 129 S.Ct. 488 (U.S.2008) (certiorari granted); 2009 WL 208117.

41.

Amnesty International, United States of America old habits die hard: The death penalty in Oklahoma, AI Index: AMR 51/055/2001 (April 2001), available at http://web.amnesty.org/library/ Index/ENGAMR510552001.

42.

Innocence Project, Know the Cases: Gilbert Alejandro (no date) (Zain reiterated his findings and pronounced that he was absolutely sure of his results and his testimony. A subsequent reexamination of the DNA report yielded completely different results. Testing had not even been completed when Zain had issued his report. The final test results, completed after the trial, revealed that Alejandro was, in fact, excluded as the depositor of spermatozoa on the victim's clothing … Alejandro's conviction was overturned and he was freed from prison.) Available at http://www.innocenceproject.org/Content/47.php

43.

Keith A. Findley, Innocents At Risk: Adversary Imbalance, Forensic Science, and The Search for Truth 38 Seton Hall L. Rev. 893, 893 (2008).

44.

Brandon L. Garrett and Peter J. Neufeld. Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 4 (2009).

45.

People v. Dotson, 99 Ill.App.3d 117 (Ill.App. 1 Dist. Aug 05, 1981) (NO. 79-1486) (Appeal denied); 119 Ill.2d 563, (Table), 119 Ill.Dec. 390 (Appeal denied). Record of charges being dropped were not published.

42

46.

See Edward Connors, Thomas Lundregan, Neal Miller & Tom McEwan, Nat'l Inst. of Justice, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. 51-52 (1996) NCJ 161258, available at http://www.dna.gov/case_studies/convicted_exonerated/Dotson.

47.

The Justice Project, Improving the Practice and Use of Forensic Science: A Policy Review. 2008. Available at http://www.thejusticeproject.org/national/solution/forensic-oversight/; see also, Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N. C. L. Rev 163 (December, 2007).

48. 49.

People v. Dotson, 99 Ill.App.3d at 118 COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE COMMUNITY., NAT'L RESEARCH COUNCIL OF THE NAT'L ACADS, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD. (2009) The National Academies Press, Washington, D.C., (preprint available at www.nap.edu/catalog.php?record_id=12589)

50.

Edward Connors, Thomas Lundregan, Neal Miller & Tom McEwan. Nat’l Institute of Justice. Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. U.S. Department of Justice, 1996. (NCJ 161258. Available a http://www.ojp.usdoj.gov/nij/pubs-sum/161258.htm)

51.

See, e.g., Joel Rubin Wider, Scope of Backlog in L.A. County LOS ANGELES TIMES. (January 28, 2009) (Sheriff's DNA testing is revealed 815 sexual assault cases with untested DNA and no suspects have been tallied so far; statute has expired on 51 of them); Associated Press DNA Evidence Testing Backlog Reported in LA County, CBS (AP) (March 31, 2009) (Suburban police departments in Los Angeles county have a DNA

43

evidence backlog from 2,750 untested rape kits). Available at http://cbs2.com/local/DNA.backlog.evidence.2.972258.html 52. District Attorney's Office for the Third Judicial District v. William G. Osborne, No. 08-6 2009 WL 506273, 36 (2 March, 2009) (Oral argument). 53. See Death Penalty Information Center, Alejandro Hernandez (2009) (available at http://www.deathpenaltyinfo.org/innocence-cases-1994-2003#59) 54. See generally, Death Penalty Information Center, Innocence: List of Those reed From Death Row, (April 14, 2009) (available at http://www.deathpenaltyinfo.org/innocence-listthose-freed-death-row 55. 56. People v. Cruz, 643 N.E.2d 636 (1994) People v. Hernandez, 521 N.E.2d 25 (Ill. 1988); (http://www.deathpenaltyinfo.org/innocence-cases-1994-2003#59) 57. 58. People v. Jimerson, 652 N.E.2d 278 (Ill. 1995). Don Terry, DNA Tests and a Confession Set Three on the Path to Freedom in 1978 Murders NEW YOUR TIMES, 6 (15 June 1996). 59. ForeJustice, Wrongly Convicted Database Record (no date) (available at http://forejustice.org/db/Miller-Jr.--Robert-Lee.html), (Erroneous testimony by the State's expert, Oklahoma City forensic technician Joyce Gilchrist). 60. 61. 62. Miller v. Jones, 92 F.3d 1196, 1996 WL 421933. Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997). State v. Krone, 897 P.2d 621 (Ariz. 1995) (en banc).

44

63.

Keith A. Findley, Innocents at Risk: Adversary Imbalance, Forensic Science, and the Search for Truth 38 Seton Hall L. Rev 893, 936 (2008); Randall Coyne. 2006. Dead Wrong in Oklahoma. 42 Tulsa L. Rev. 209, 236, 237 (Winter, 2006).

64.

CLARKE, ARTHUR C. Profiles of the Future: An Inquiry Into the Limits of the Possible, (1984) (Holt, Rinehart & Wilson. New York, New York. pp. 205n. ISBN 0030697832.)

65.

Except for specific citations, the reader is referred to general texts for more information on DNA characteristics, e.g., Leland Hartwell, Leroy Hood, Michael L. Goldberg, and Ann E. Reynolds, Genetics: From Genes to Genomes (2006) (McGraw Hill Higher Education; 3rd edition); JOE SAMBROOK, Molecular Cloning: A Laboratory Manual, (2001) (Cold Spring Harbor Laboratory Press; 3 Lab edition).

66.

John I. Thornton, The General Assumptions and Rationale of Forensic Identification, in DAVID L. FAIGMAN, DAVID H. KAYE, MICHAEL J. SAKS, & JOSEPH SANDERS, Modern Scientific Evidence: The Law and Science of Expert Testimony, vol. 2, (1997) (West Publishing Co.)

67.

For example, MEL ROBIN, A Physiological Handbook for Teachers of Yogasana. (2002) (Fenestra Books, Tucson, AZ )

68.

Claudia Himmmelreich, Germany's Phantom Serial Killer: A DNA Blunder, Time World (Friday, Mar. 27, 2009) (Berlin, available at http://www.time.com/time/world/article/ 0,8599,1888126,00.html www.news-von-morgen.de/phantom-von-heilbronn-hat-es-niegegeben-718490)

69.

See, Wikipedia, Phantom of Heilbronn, (2009) (available at http://en.wikipedia.org/ wiki/Phantom_of_Heilbronn).

45

70.

National Institutes of Health, National Human Genome Research Institute, HGRI Aims to Make DNA Sequencing Faster, More Cost Effective, (2006) (available at http://www.genome.gov/19518500)

71.

National Institutes of Health, Revolutionary genome sequencing technologies -- the $1000 genome, (2004) (available at http://grants.nih.gov/grants/guide/rfa-files/rfa-hg-04003.html)

72.

John Kimball, Kimball’s Biology Pages, Chromosomes (May 18, 008) (available at http://users.rcn.com/jkimball.ma.ultranet/BiologyPages/C/Chromosomes.html)

73.

The PubMed (Public Medicine) data base is Entrez, available at http://www.ncbi.nlm.nih.gov/sites/entrez

74.

Federal Bureau of Investigation, National DNA Index system, (2007) (available at www.fbi.gov/hq/lab/codis/national.htm).

75.

Promega, Inc., Technical Manual Powerplex®16 System Instructions for Use of Products DC6530 AND DC6531 (2008) (Revised 5/08 Part# TMD012 available as a .pdf at www.promega.com).

76.

Osborne v. District Attorney's Office for Third Judicial Dist. 521 F.3d 1118, 1123 (C.A.9 (Alaska), 2008).

77.

(Peter Gill, Jonathan Whitaker, Christine Flaxman, Nick Brown, & John Buckleton, An investigation of the rigor of interpretation rules for STRs derived from less than 100 pg of DNA. FORENSIC SCI. INT. 112 (1):17–40. (2000).).

78.

Com. v. Byrd (Pa.Super. 2008) (Appeal From: CP-46-CR-0001939-2006 (Montgomery) affirmed).

79.

Commonwealth of Pennsylvania v. Jacuqin Jaron Byrd (2008 WL 1723490)

46

80. 81. 82.

Commonwealth of Pennsylvania v. Jacuqin Jaron Byrd (2007 WL 5087170) http://www.forensicdnacenter.com/dna-ystr.html Steve McGonigle, Dallas man cleared, freed after 27 years in prison. DALLAS MORNING NEWS (4 January 2008)

83. 84. 85.

Ex Parte Chatman, S.W.3d, 2008 WL 217860, Tex. Crim. App., (2008) (Unpublished). http://www.innocenceproject.org/Content/1216.php. Venigalla B. Rao, Strategies for direct sequencing of PCR-amplified DNA. GENOME RES. 4:S15-S23 (1994); Holly H. Hogrefe, Connie J. Hansen, Bradley R. Scott, & Kirk B. Nielson, Archaeal dUTPase enhances PCR amplifications with archaeal DNA polymerases by preventing dUTP incorporation Proc. Nat. Acad. Sci. (USA) 99(2): 596-601 (2002) (abstract available at http://www.pnas.org/content/99/2/596.abstract).

86.

Department of Biochemistry and Molecular Biology, Pre Knowledge Enzyme Basics, (no date) (available at http://www.umdnj.edu/biochweb/education/bioweb/PreK/EnzymeBasics.htm)

87.

District Attorney's Office for the Third Judicial District v. William G. Osborne No. 08-6, 2009 WL 506273, 25 (2009) (Oral argument 2 March, 2009).

88.

COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE COMMUNITY., NAT'L RESEARCH COUNCIL OF THE NAT'L ACADS, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD, 61 (2009) The National Academies Press, Washington, D.C., (preprint available at www.nap.edu/catalog.php?record_id=12589)

89.

William J. Morgan, Justice in Hindsight: The Problem with Eyewitness Identification and Exoneration by DNA Technology (November 11, 2008) (available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1299763

47

90.

Sandy Zabell, Fingerprint Evidence. 13 JOURNAL OF LAW AND POLICY 1, (2005) (available at http://www.brooklaw.edu/ students/journals/bjlp/jlp13i.php) (In 1995, the Collaborative Testing Service administered a proficiency test … of 156 people taking the test, only 68 (44%) correctly classified all seven latents. Overall, the tests contained a total of 48 incorrect identifications … the reaction of the forensic community ranged from “shock to disbelief.”)

91.

See, e.g., Diana Borteck, Please for DNA Testing: Why Lawmakers Should Amend State Post-Conviction DNA Testing Statutes to Apply to Prisoners Who Pled Guilty, 25 CDZLR 1429, 1435 (2004)

92. 93.

See, e.g., Coffin v. U.S. 156 U.S. 432, 456 (1895). Kansas v. Marsh, 548 U.S. 163, 188 (2006) (Scalia, J., concurring; stating that “the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit”); Jeffrey L. Kirchmeier, Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution. 42 TULSA LAW REVIEW 43 (2006).

94.

Center on Wrongful Convictions, Explore the Issues (2009) (Northwestern University School of Law) (available at http://www.law.northwestern.edu/ wrongfulconvictions)

95.

Center on Wrongful Convictions, Executing the Innocent, (2009) (Northwestern University School of Law) (available at http://www.law.northwestern.edu/wrongfulconvictions/ issues/deathpenalty/Executinginnocent/.

48

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