Source: Authors.
Like a person’s home, one’s body falls within the protection of the Fourth Amendment. Therefore, it is not a stretch to apply the reasoning in Kyllo to DNA. The privacy interest associated with our DNA comes into play not so much in the form of the materials that we leave behind us, namely, the macroscopic objects such as coffee cups, which ordinary people can observe and identify, but only when those objects are scientifically analyzed for the molecular information contained within.
Any information that cannot be obtained by direct observation of an individual can be considered private unless the individual decides to make it otherwise. If police were to use a technology that would reveal information about what is contained in one’s wallet or pocket, it would follow from Kyllo that it should be considered a search as long as the technology is not available to everyone. The use of ordinary binoculars would not reach a threshold of breaching privacy under this standard. But subjecting a saliva sample to laboratory testing—which only those with specialized knowledge and with access to sophisticated equipment could carry out—perhaps should. As the use of a thermal imaging device invades the privacy of one’s home, so too does the use of PCR to glean information from one’s DNA breach the privacy of one’s body.
When we throw a cup or personal items in the trash, we do not expect that people with sophisticated knowledge and access to a genetic laboratory will detect and analyze our DNA, possibly revealing intimate information. It might be reasonable to say that we have no expectation of privacy for the abandoned object, but certainly we do have such an expectation of privacy for the information in the genetic material that sits on that object.
What does it mean to live in a world where one has to assume that DNA, which people shed on a continual and involuntary or uncontrolled basis, might at any time be picked up from discarded objects, extracted, and analyzed for information? Some legal scholars have accepted the default position that the information on shed DNA is not protected: “There is even a strong indication that suspects possess no ‘reasonable expectation of privacy’ in shed DNA cells, and thus law enforcement can easily gather such probative evidence without worrying about the individual’s Fourth Amendment rights.”24 Our examples and analogy call into question the default position that is the current practice.
Police point to individual success stories as a way of justifying surreptitious DNA collection as a “clever investigation technique.” But by allowing police to take our DNA without our knowledge or consent, we are opening the door to mass DNA collections of individuals vaguely suspected or not at all suspected of a crime. This could extend to private detectives and amateurs who have some reason to use surreptitious methods to collect and analyze someone’s DNA.25 Individuals now have no way of contesting this collection or the use of their DNA. This scenario becomes increasingly worrisome when it is coupled with developments in behavioral genetics; for example, genetic markers for aggression or addiction could provide justification for identifying these individuals before crimes are committed and subjecting them to social control, or as a reason to mete out a more severe punishment when they are convicted of a crime.26
The current dominant framework that assumes that DNA collected from coffee cups, cigarette butts, and saliva samples is “abandoned” means that police can pick up DNA anywhere, from anyone, and at any time. The lack of meaningful consideration of the full implications of this assumption is threatening to erode any and all privacy interest in our DNA. If we take seriously the notion that our DNA is a private matter, then we need to ensure that our bodily materials in which that DNA resides cannot be tested and mined without our consent. As Joh states: “While Fourth Amendment law may not appear to protect a privacy interest in the human tissue left behind as the detritus of our daily lives, it is far from obvious that people do not harbor a privacy expectation in genetic information that ‘society is prepared to recognize as reasonable’.”27 It is noteworthy that the United Kingdom has taken the first step in acknowledging DNA’s special privacy protections by banning ordinary citizens from analyzing “abandoned” DNA without the consent of the person(s) from whom it originated.
Chapter 7
Exonerations: When the DNA Doesn’t Match
So then after I have been on death row for twenty-two years, they find this DNA evidence, you know, and the prosecution says that this will be the final nail in Kerry Max Cook’s coffin. “We’ll show the world once and for all that he committed this murder.” And then the results come in and it did just the opposite; it finally took the nail out of my coffin, told the world the truth—that that was Professor Whitfield’s DNA they found on that girl. And he’s still out. They never went after him. He’s been walking around a free man, laughing at the system for twenty-two years.
—The Exonerated (play)1
Our legal system places great weight on the finality of criminal convictions. Courts and prosecutors are exceedingly reluctant to reverse judgments or reconsider closed cases; when they do—and it’s rare—it’s usually because of a compelling showing of error. Even so, some state officials continue to express doubts about the innocence of exonerated defendants, sometimes in the face of extraordinary evidence.
—Samuel R. Gross et al.2
Comparisons between scientific and judicial methods of fixing belief can be found in several recent studies.3 Both the scientific and legal communities seek the truth, albeit in different contexts. The former focuses on the pursuit of knowledge of processes within the natural world, while the latter seeks guilt or innocence of human behavior in the social world. As noted by the late sociologist Robert Merton, science operates within a system of norms, including organized skepticism, which implies that scientists place a high burden on validating a claim.4 Science is also deemed to be self-correcting. Either by retesting a result or by identifying bias and uncertainty, the gatekeepers of “certified knowledge,” such as journal editors, reviewers, and professional societies, correct the mistakes of prepublication or published results.
The legal system pursues its truth through an adversary system that draws on experts and eyewitnesses, a process where legal advocates make their cases before the “triers of fact,” either juries or judges. In contrast to the scientific culture, the legal system can correct mistakes through a process of appeals. Mistakes in law often involve procedural errors committed by the trial judge. For example, an appeals court might overturn a lower court’s decision on the admissibility of evidence or whether an expert witness met the standards set under the Supreme Court’s 1993 Daubert ruling.5 Corrections by a higher court can lead to a mistrial or to exoneration in cases where the defendant’s constitutional rights have been violated.
Although it may seem that there are stark differences between the pursuit of truth in science and in the judicial system, both are embedded in a social context, and as a consequence the methods they use share some common features. Fraud can be found both in science and in legal processes, where evidence can be cooked, fabricated, withheld, or discarded. Scientists who violate the standards of research integrity are usually publicly censured or ostracized from the community. Penalties imposed on police for the mishandling of evidence may not be as severe as those given to scientists charged with misconduct, but evidence mishandling can reverse a conviction and weaken the public’s trust in a prosecutor. Just as there is scientific misconduct, there is prosecutorial misconduct, such as when a prosecutor knowingly uses false evidence. In the 1935 case Berger v. United States the Supreme Court outlined the prosecutor’s legal and ethical role in pursuing justice: “It is as much his [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”6 As an example, the California Penal Code requires prosecutors to disclose any exculpatory evidence, including notes compiled by the prosecution’s expert witness containing exculpatory information.7
According to the philosopher Karl Popper, all sci
entific claims are tentative. They gain their standing as “scientific claims” by being falsifiable. Scientific claims (explanations, hypotheses, and theories) gain plausibility and validation (corroboration) when they are rigorously tested and resist falsification.8 But no scientific claim is beyond falsifiability; otherwise it could not claim scientific (empirical) status.
Judicial decisions of guilt or innocence are also tentative, but there are some caveats. Innocence and guilt are not treated the same in legal epistemology. A person found innocent of a crime cannot be tried again in light of new evidence or procedural errors. Prosecutorial mistakes cannot be remediated in a second trial. The American judicial system is afforded one chance to prove guilt but offers multiple opportunities for correcting a guilty conviction that was in error.
In science the burden for demonstrating truth may be high, but negative results, such as experiments that do not corroborate a hypothesis, which also reveal truths, rarely get reported by journals. The burden, however, remains the same for positive or negative results. By contrast, legal theory suggests that the burden to demonstrate a positive finding of guilt is higher than to demonstrate innocence because “innocence” is the default position. Failure to demonstrate guilt to the “triers of fact” leaves innocence as the default, although it does not imply innocence in some objective sense. “No evidence of guilt” is not the same as “evidence of innocence.” Similarly, failure to confirm a scientific hypothesis does not imply that the hypothesis is false. There are many cases in science where some tests are positive and some are negative.
Contemporary philosophers and historians of science have shown that science can too easily be idealized. There are examples that suggest that scientists are unwilling to give up hypotheses or theories in the face of falsifying evidence. This was the conclusion of the historian Thomas Kuhn in The Structure of Scientific Revolutions when he wrote that scientists hold on to a “paradigm” despite convincing evidence that it is false.9 There is also increasing evidence that scientific results can be biased by the sponsor of the research, who may have a financial interest in certain outcomes.10
Science has always played a role in the judicial process in the form of expert testimony. The term “forensic science” is an established part of criminal justice. Juries, however, have not been a part of the certification of scientific knowledge. Periodically, proposals have been proffered for a science court in the form of an elite group of scientific experts who would reach a consensus on complex issues involving scientific causality that have a strong bearing on public welfare. Supreme Court justice Stephen Breyer suggested such a system to resolve the opinions of dueling experts in tort cases involving chemical exposures.11 In a few cases judges have empaneled experts, notably, in the class-action case of silicone breast implants, to reach a decision on whether there was sufficient scientific evidence for the plaintiff ’s claim.
When DNA was first introduced into the courtroom in the 1980s, it created a sea change in forensic science. Microscopic traces of DNA at a crime scene could implicate a defendant with more precision and less uncertainty than traditional analysis of hair, blood, footprints, bite marks, and the like. By far the most revolutionary aspect of DNA evidence is its role in establishing innocence. The remainder of this chapter examines the impact of DNA evidence and DNA data banks on uncovering the truth about wrongfully convicted individuals.
The First DNA Exoneration
The first person exonerated in the United States by DNA evidence was Gary Dotson, a resident of a Chicago suburb convicted of rape and aggravated kidnapping. The story of Dotson’s conviction and eventual exoneration has many twists and turns covering a period of 12 years. During this period Dotson was tried and convicted, was given a governor’s commutation, was placed on parole, was charged with domestic battery, parole violation, and other minor offenses, had his original sentence reinstated, and served additional time in prison after his first release, all the while going through many appeals. Because it was the first case of DNA exoneration, it occurred while the science of DNA testing was in its infancy, and that added a level of complexity.
The case began on the evening of July 9, 1977, 10 years before forensic DNA was introduced. Cathleen Crowell, a 16-year-old cook and cashier in a Long John Silver’s seafood restaurant, was standing on the side of a road in Homewood, Illinois, a Chicago superb. A police officer saw Crowell standing alone, vulnerable, agitated, and in tears. She told the officer that she had been grabbed by three men while crossing a mall parking lot, thrown into a car, and raped by one of the men in the back seat. The rapist, she reported, had scratched letters into her naked stomach with a broken beer bottle.
Crowell was taken to South Suburban Hospital, where she underwent a rape examination. The examination included a vaginal swab and observation of a seminal stain on her underpants. The emergency-room physician also made note of the marks on her stomach—a series of superficial scratches in a crosshatched pattern, which could have been an effort to spell out some words that were not decipherable.
Several days after the incident a sketch artist worked with Crowell to develop a drawing of her assailant. Subsequent to the artist’s rendering of the rapist, Crowell was shown a series of mug shots. She picked out Gary Dotson as her rapist.
The trial of Dotson took place in May 1979. There were two witnesses for the prosecution. One was the alleged victim, a high-achieving student at Homewood-Flossman High School. She identified Dotson as her rapist in open court with no uncertainty expressed. The second witness was Timothy Dixon, a state police forensic scientist. Dixon testified for the prosecution that he detected type B blood antigens in the stain on Crowell’s underpants. He noted that Dotson had type B blood. According to Dixon, B antigen secretions were found in about 10 percent of the white male population. He also testified that several loose hairs found on the victim were similar to hairs taken from Dotson.
The prosecutor used the forensic testimony and the victim’s eyewitness account to gain a conviction of Dotson in 1981. He was sentenced to not less than 24 and not more than 50 years for rape and aggravated kidnapping. The Illinois Appellate Court upheld the conviction.12
The case against Dotson began unraveling in 1982. Crowell married a high-school classmate and moved to New Hampshire. The newlyweds joined the Pilgrim Baptist Church. In 1985 Crowell, then Cathleen Crowell Web, confided to her pastor that she had fabricated the rape allegation that sent Dotson to prison. Her motive was to protect herself from the embarrassment of becoming pregnant after she had consensual sex with the boyfriend she had at the time.
Cook County prosecutors were informed of the recantation of Crowell’s testimony but were not interested in reexamining the case until the Chicago print media broke the story later that year. From there, further weaknesses and inconsistencies in the prosecutor’s case against Dotson began to emerge. The state’s forensic expert had misrepresented himself as having taken courses at the University of California at Berkeley. Also, he had failed to reveal that Crowell was also a secretor of type B blood antigens and that the seminal content of the stain could have come from 60 percent of men in the white population. The forensic expert also erred in linking the loose hairs to Dotson. Moreover, the concentration of spermatozoa in the stain on Crowell’s underpants was different than that on the vaginal swab, indicating that the two events had not occurred at the same time, as the victim had claimed.
News coverage created a public appeal for Dotson’s release. On April 11, 1985, at a hearing on Dotson’s motion for a new trial, the same judge who had originally heard the case refused to order a new trial on the grounds that he believed that the complainant (the rape victim) was more believable in her original testimony than in her recantation.13
After the governor of Illinois accepted authority for the case, a hearing was held before the Illinois Prisoner Review Board. The governor did not believe Crowell’s recantation and refused to pardon Dotson. But on May 12, 1985, the governor commuted Dotson’s sen
tence to six years that he had already served, under conditions of good behavior. In 1987, after Dotson was accused of spousal abuse, the governor revoked his parole. On Christmas Eve 1987 the governor granted Dotson a “last chance parole.” Two days later Dotson was arrested in a barroom brawl, and his parole was once again revoked.
In 1988 Dotson’s new attorney read a story in Newsweek magazine about a new technique for establishing identity by DNA analysis. He requested that the court have Dotson’s DNA tested to determine if he was implicated in the rape. The decision was supported by the governor, and the testing was done by Alex Jeffreys, who had developed the first method for DNA fingerprinting. His process, called restriction fragment length polymorphism (RFLP), required a sizable quantity of DNA. Because there was degradation in the sample taken from Crowell’s underpants, Jeffreys could not perform the test. The governor agreed to a new test using the latest DNA identification technology, polymerase chain reaction (PCR), patented by the Cetus Corporation, which had been shown to be effective in testing extremely small quantities of DNA. On August 15, 1988, the governor was notified that the PCR tests conclusively excluded Dotson and implicated Crowell’s past boyfriend as the source of semen in the underpants.
Dotson was released from prison while serving additional time for a technical parole violation and was committed to a substance-abuse treatment center. His lawyer petitioned for a new trial on the rape charges on the basis of the PCR results. The presiding judge of the Criminal Division of the Cook County Circuit Court granted the motion. The state attorney’s office decided not to prosecute on the basis of the victim’s credibility and the DNA test results. On August 14, 1989, the Cook County Circuit Court in Chicago, Illinois, vacated Gary Dotson’s 1979 rape conviction and dismissed all charges. With the charges against Dotson dropped, he became the first convicted felon exonerated by DNA technology, after having served eight years in prison.
Genetic Justice Page 16
