BOX 16.7 Massachusetts v. Greineder
In 1999 Mabel Greineder was found beaten to death in a wooded area in Wellesley, Massachusetts. Her husband, Dr. Dirk Greineder, a prominent physician and adjunct Harvard professor, was arrested after a DNA profile similar to his was found, mixed with his wife’s profile, on gloves and a knife found near the scene of the crime. Some of Greineder’s alleles were not found, and additional alleles that did not belong to him or his wife were also found on the items. Greineder challenged the DNA evidence in the case. He argued that his DNA could have appeared on those objects as a result of tertiary transfer. He claimed that because he and his wife had shared the same towel that morning, his DNA could have been transferred from his face to the towel, and then from the towel to his wife’s face. Then, in the process of her murder, his DNA could have been transferred again to the knife and the gloves. This theory, he claimed, was also consistent with the fact that additional alleles had been found on the gloves and the knife that matched neither him nor his wife.a Greineder hired a private DNA lab to test his hypothesis. The lab ran an experiment and presented testimony in the case that tertiary transfer could indeed have occurred as he described it.b The jury ultimately convicted Greineder of murder in 2001. In 2005 Greineder’s lawyers filed a motion with the Supreme Judicial Court requesting a new trial. They argued that DNA testing crucial to the prosecution’s case had been conducted improperly and that Greineder had been deprived of effective legal counsel. Arthur J. Eisenberg, the director of the DNA Identity Laboratory at the University of North Texas Health Science Center and then chairman of the U.S. DNA Advisory Board, submitted an affidavit stating that the genetic testing conducted for the trial by the forensic laboratory Cellmark “was contrary to what is generally accepted in the science community. . . . There was no scientifically reliable evidence that Dirk Greineder was a potential contributor to the DNA obtained from any of the three key pieces of evidence.” Eisenberg said that too little DNA was found on the items to obtain reliable results and that, furthermore, the profiles of both Dirk and Mabel Greineder were ascertained by Cellmark before interpreting the key evidentiary samples, potentially biasing the analyst’s interpretation of the results. The motion was denied. In October 2009 his lawyers filed another motion for a new trial.
a William C. Thompson, Simon Ford, Travis E. Doom, Michael L. Raymer, and Dan E. Krane, “Evaluating Forensic DNA Evidence, Part 2,” The Champion (April 2003): 16–25, at 24.
b Suzanna Ryan, “Transfer Theory in Forensic DNA Analysis,” LawOfficer.com, January 20, 2009, http://www.lawofficer.com/news-and-articles/columns/ryan/transfer_theory_in_forensic_dna_analysis.html (accessed April 28, 2010).
Sources: Rachel Lebeaux, “Greineder Appeals Murder Conviction,” Wellesley Townsman, August 3, 2005; Denise Lavoie, “Wellesley Doctor Seeks New Murder Trial,” Associated Press, October 8, 2009, http://www.boston.com/yourtown/news/wellesley/2009/10/wellesley_doctor_seeks_new_mur.html (accessed April 28, 2010).
In science, misconduct, including outright fraud, rises to the level of high crimes and misdemeanors. A special federal office called the Office of Research Integrity was established in March 1989 to investigate scientific misconduct. Among the most blatant and reviled forms of misconduct is the “cooking of data,” a term that means that the investigator discards or fabricates data to conform to a hypothesis. There have been cases of data fabrication so egregious that even seasoned observers found them difficult to comprehend. In one case biologist William T. Summerlin used a felt pen to mark a mouse and claimed that it expressed a skin transplantation without immunosuppression.31 Others have been known to doctor photographs or reuse old photographs.32 Arthur Koestler’s classic book The Case of the Midwife Toad tells the story of the highly acclaimed early twentieth-century biologist Paul Kammerer, who used india ink to fabricate darkened nuptial pads in the toad in order to support a Lamarckian theory that inherited characteristics can be acquired from environmental conditions.33
The idea of fabricating evidence is not unique to science. It is a well-documented practice in law enforcement, where criminal investigators are either so confident that the suspect is guilty or are so pressured to solve a crime that they feel justified in “cooking the evidence” by planting drugs, a gun, or other incriminating items in the home or car of a suspect. In 1995, six Philadelphia police officers pleaded guilty to charges of planting illegal drugs on suspects, the theft of more than $100,000, and the falsification of reports. The investigations into the officers’ actions led to the release of hundreds of defendants whose convictions were overturned by the appeal courts. Also in 1995, two other officers from Philadelphia received prison sentences of 5 to 10 years for framing young men. Since 1993 the city of Philadelphia has paid out approximately $27 million in more than 230 lawsuits alleging police misconduct.34
In one analysis of the O. J. Simpson case the author noted, “Evidence presented later at the trial showed that the officer had used racist language in an interview with a writer, that he described police beating a Black suspect and that he asserted that the police planted evidence against Black suspects.”35 Merrick Bobb reports that the Los Angeles Police Department (LAPD) suffered “embarrassment and opprobrium” when it was disclosed that “LAPD officers were shown to have planted evidence and guns and wrongfully shot young Latinos suspected of gang activity.”36 If police can plant drugs, they can certainly plant DNA. Another account of the Simpson case noted that sloppy handling of DNA evidence—including an inability to account for missing blood from a reference sample collected from Simpson and the discovery of several bloodstains at the crime scene several weeks after the crime had been committed—supported a theory that Simpson’s blood had been planted after the murders had taken place.37
DNA can also be planted at a crime scene by a criminal in an attempt to thwart the police or to frame someone else for a crime. Several instances have already been reported where criminals have planted or tampered with evidence or have paid inmates to take DNA tests as a way of confusing investigators or evading prosecution. Prisoners have also been overheard coaching each other on how to plant biological evidence at a crime scene and how to avoid leaving their own DNA behind.38 We have seen how DNA was smuggled out of prison to cast doubt about a conviction.39 An elaborate scheme is hardly needed, of course; more simply, DNA evidence can be deposited at a crime scene by way of discarding DNA-carrying items, such as used cups, cigarette butts, a hair sample, or other items likely to contain testable amounts of DNA.
In 2009 a study published by scientists in Israel demonstrated that a somewhat more motivated criminal with access to a single hair strand, cigarette butt, or dry saliva stain and some basic laboratory equipment (a polymerase chain reaction [PCR] analyzer and a testing kit that is commercially available) could amplify DNA and spread it around a crime scene. Similarly, an artificial DNA profile could be assembled and amplified on the basis of a reference profile, without the need for any source DNA. In either case the amplified DNA can then be applied to objects and planted at the crime scene.40 Although neither of these approaches is likely to be pursued by an average criminal, neither of them would require significant resources or more than a basic knowledge of molecular biology. Dan Frumkin, lead author of the article “Authentication of Forensic DNA Samples,” has stated, “You can just engineer a crime scene. Any biology undergraduate could perform this.”41 Laboratories often update their equipment and sell off their PCR analyzer machines on the Internet; when the authors last checked, there were two such analyzers for sale for approximately $500 each on eBay.
Finding someone’s DNA at a crime scene may be a prima facie reason to consider that the person was at the location at some time, but it is certainly not definitive or infallible evidence of this. Given the history of misconduct in criminal justice, planting of DNA evidence by police seeking to close the case or perpetrators seeking to divert police cannot be left out of the equation. Finding someone’s DNA at a crime scene is not infa
llible evidence either that they were there or that they committed the crime. DNA typing helps determine the source of the biological material at a crime scene; other evidence is needed to determine whether the true donor of the sample committed a crime.
Myth of the Infallible Mismatch
If Two Samples of DNA Are Found Not to Match, Then the Samples Cannot Have Come from the Same Individual.
This claim appears, at first glance, to be well grounded in science. Textbooks report that all our cells contain the identical string of DNA molecules. If two DNA samples do not match, then it would seem that they surely cannot come from the same individual.
It is true that a nonmatch is more definitive than a match. In other words, a nonmatch offers more conclusive evidence that two samples did not come from the same individual than does a match in showing that the source of DNA of two samples is the same. As an analogy, a single black swan falsifies the statement “all swans are white,” whereas a white swan (or many white swans) supports the statement but does not prove it. Nonetheless, even a nonmatch has its limitations.
Lydia Kay Fairchild, a resident of Washington State, was pregnant at age 26 with her third child in 2002. She had an on-and-off relationship with the putative father of her children, a man named Jamie Townsend. They were separated during her pregnancy. Without a job or means of support, Fairchild applied for welfare benefits. The state welfare agency required proof that Townsend and Fairchild were indeed the biological parents of the children. DNA tests were performed. The results confirmed that Townsend was the children’s father. But there was a wrinkle. Fairchild’s DNA was found not to match that of her children. Ordinarily there would be a 50 percent similarity between the DNA of a child and each biological parent. The court ruled that Fairchild was not the biological mother of her two children, a son aged 4 and a daughter aged 3, as she had claimed, and considered this a case of welfare fraud. The judge discounted the hospital birth records as forgeries and accepted the DNA evidence as indisputable.42
The state prosecutor for the case wanted Fairchild’s two children to be placed with guardians while the investigation continued. She was charged with attempting to defraud the state and was denied public assistance. Her insistence that she was the biological mother of her children convinced the judge to offer her a last opportunity to prove her case. The judge ordered someone to be present during the birth of Fairchild’s third child; the court-appointed witness would take blood samples of the newborn immediately after delivery and have them analyzed. Like his siblings, the newborn’s DNA was found to be different from that of his mother. The state could no longer claim that, despite the DNA conundrum, Fairchild did not gestate her children. Other explanations were sought. Fairchild’s lawyer characterized the response of the prosecutor to this result:
The questions that have gone through the prosecutor’s mind include whether or not she [Fairchild] was involved in being a surrogate mother. If the egg and sperm had been planted then she wouldn’t have a [genetic] relationship to the child. Maybe she’d abducted the children from somewhere or was involved in some other criminal activity.43
The explanation for the dissimilarity of DNA between mother and child was eventually solved: Fairchild is a chimera. This means that some of her cells have one DNA type, while other cells have an entirely different DNA type. Fairchild’s skin and hair-root DNA did not match that of her children, while the DNA from her cervical cells did match their DNA.
Chimerism occurs during the development of a blastocyst in the womb. Two fertilized eggs, either implanted by in vitro fertilization or dropped from the ovaries, fuse in the early stages of development, creating an embryo with cells that have different DNA profiles. Another route to chimerism is the vanishing-twin thesis. Somewhere between 20 and 30 percent of pregnancies start out as fraternal twins but end up as single babies. One of the early-stage fraternal embryos is absorbed by the mother, while some of its cells enter the body of the remaining embryo and remain there throughout development. These embryonic anomalies occurring after in vitro fertilization are sometimes referred to as embryo amalgamation.44 Alternatively, chimerism can also arise from cells that routinely pass from mother to fetus and get integrated into the fetus.
There are no clear estimates of the rate of chimerism in the population. Howard Wolinsky, who estimates as many as 1 in 8, believes that it is “not rare, but rarely discovered, because it seldom generates any observable anomalies.”45 Catherine Arcabascio reports chimerism figures ranging from as high as 1 in 10 to 1 in 2,400 persons.46 New York Times science writer Gina Kolata reported the following on chimerism:
Dr. Ann Reed, chairwoman of rheumatology research at the Mayo Clinic, who uses sensitive DNA tests to look for chimerism, finds that about 50 to 70 percent of healthy people are chimeras. The more scientists look for chimerism, the more they find it. It seemed not to exist in the past, she said, because no one was explicitly looking for small amounts of foreign cells in people’s bodies. “Some believe that if you look hard enough you can find chimerism in anybody,” said Dr. Reed. . . . It is so common that she thinks there must be a biological reason for it. It also may cause problems, she and others say.47
There are insufficient empirical data to narrow the uncertainty about chimerism incidence. Chimerism can have serious implications for individuals undergoing blood transfusions or organ transplantation. It has also emerged as a defense on the part of professional athletes who have been accused of transfusing themselves to boost their endurance.48 The implications for paternity testing and forensic analysis are significant:
Take, for example, the hypothetical case of a chimeric criminal who leaves DNA at the scene of the crime. The suspect may leave a sample of hair, semen, saliva, perspiration, urine, ear wax, mucus, bone, fingernail scrapings, blood, or skin. He may even leave a combination of those forensic clues at the scene. If he is a chimera, however, the DNA from his saliva could, in theory, differ from the DNA in his semen, skin, blood, or some other sample left at the scene.49
Criminal chimeras could be mistakenly exonerated if DNA served as the definitive evidence. In addition, those who are falsely convicted of a crime and whose only chance at exoneration is the submission of the crime-scene DNA for a cold hit in CODIS could also be stymied by the actual perpetrator if he or she were a chimera. If chimerism occurs at a higher rate than the lower estimates predict, the entire project of forensic DNA would have to be reconsidered for fallibility of identification.
Where does this leave us? There is nothing infallible about DNA. DNA evidence can be strong or weak or anything in between. Human error can and does occur in the collection, analysis, and interpretation of DNA results. Samples can be switched, cross-contamination can occur, analyses can be improperly interpreted, and the results can be poorly communicated. Any errors of this sort can lead to the false incrimination and wrongful conviction of an innocent person. The possibility that chimeras are a rule rather than a rare exception could undermine the very basis of the forensic DNA system.
In the meantime, are the myths or exaggerations of infallibility obstructing the cause of justice? Is too much power attributed to DNA as truth telling? Would higher probabilities in the estimate of RMPs in coldhit cases make a difference in their probative value or how juries relate to the evidence? Is contamination of evidence going unnoticed? How often are people being wrongfully arrested, tried, and convicted of crimes on the basis of flawed DNA evidence? These questions illustrate the human dimension in the use of forensic DNA. Human judgment is notoriously fallible, but it remains our only guide as long as we understand its limitations.
Chapter 17
The Efficacy of DNA Data Banks: A Case of Diminishing Returns
The more complete the database the better the chance of detecting criminals, both those guilty of crimes past and those whose crimes are yet to be committed.
—Lord Brown, House of Lords, British Parliament1
Forensic DNA data banks have been the subject of many narr
atives, but none more forceful in its advocacy and more universally held than the one that claims that, ceteris paribus, the larger the data banks, the more crimes will be solved and the more crimes will be prevented. When the New York State Senate was debating whether to expand the state’s forensic DNA databases to arrestees, then Senator Joseph L. Bruno said, “Expanding the scope of the DNA databank means expanding the ability of our law enforcement officials to solve both new crimes and old ones.”2
There are certainly intuitive aspects to this narrative. Forensic DNA data banks of felons overall have been a good thing for law enforcement, both in prosecutions of murder-rapists who might have escaped being caught were it not for DNA evidence and in early DNA exclusions of suspects who otherwise might have run up high investigative costs. But is more of a good thing necessarily better? Examples abound in daily life where this is not the case. Sometimes “more” can go hand in hand with “more complicated,” resulting in diminishing returns and increasing inefficiencies. We all like choices when we go to the grocery store, but the more choices we have, the more time we spend making our way down the aisle. Sometimes expanding the good beyond the boundaries of its initial intent can have unforeseen consequences. Soon after estrogen therapy proved successful in helping women who lacked normal estrogen levels to conceive, physicians began using estrogen as a replacement therapy for women who lost estrogen in the aging process under the theory that, since estrogen was important for women’s health, more of it would make women healthier. Instead, this continuous, long-term use3 of synthetic estrogen proved to carry with it substantial risks, requiring special medical oversight. Similar fallacies have been made in law enforcement. Few would deny that police should be adequately armed against violent criminals. But the fact that an armed police force is a good thing does not imply that more powerful arms, such as a 12-gauge shotgun or an AK-47 rifle, makes for better policing and would not result in the abuse of deadly force.
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