DNA Evidence and Miscarriages of Justice

Internet article

By: Bernie Matthews

Date: March 18, 2005

Source: Bernie Matthews. On Line Opinion—Australia's e-Journal of Social and Political Debate. 〈http://www.onlineopinion.com.au/view.asp?article=3258〉 (accessed February 26, 2006).

About the Author: Bernie Matthews is a convicted bank robber and prison escapee who has served time for armed robbery and prison escapes in New South Wales (1969–1980) and Queensland (1996–2000). He is now a journalist.

INTRODUCTION

Biological evidence, such as blood grouping and fingerprints, has long been used as forensic evidence. DNA fingerprinting was introduced into American courts as admissible evidence in 1988 and has given new meaning to the concept of establishing the identity of a suspect from a trace of biological material left at the scene of a crime.

DNA is a very long molecule found in the nucleus of cells which contains the genetic blueprint in the form of a chemical code. Research in the 1960s showed that the code consists of the sequence of the four chemical 'letters' (known for short as A, C, G and T) making up the DNA molecule. Apart from identical twins, each individual has a different DNA sequence. This was exploited by Alec Jeffreys and his team at Leicester University, England, in the 1980s. They developed a way of comparing these differences in DNA between individuals—a technology generally known as DNA fingerprinting.

The methods used in DNA fingerprinting are advancing all the time but generally they focus upon two types of variations seen in DNA. Variable Number Tandem Repeats (VNTR) are sections of sequence that are repeated all along the DNA molecule in various locations (known as loci). One person may have five copies of a VNTR at a particular locus, while someone else has eight. The other variation is called the Short Tandem Repeat (STR) which, as the name suggests, is a much shorter piece of sequence—typically just three to seven letters long. The value of the STR is that the repeats are found over much shorter segments of the DNA molecule so technicians can use even fragments of a DNA molecule (useful when a sample has been degraded at the crime scene) to make an analysis.

Typically, in a DNA fingerprint, VNTRs or STRs are several loci will be examined. If only one was investigated, the chances of getting a unique match between two samples (sample at crime scene and sample taken from suspect) would not be great. It may be that one percent of the population shares the pattern at that locus. But when more loci are examined and matches are still found, then the chance of the pattern belonging to someone other than the suspect soon become extremely small—of the order of one in several million. DNA is therefore a very powerful forensic tool for establishing identity and has been used to secure convictions all over the world in the last two decades. But, as the article below describes, sometimes the technology goes wrong.

PRIMARY SOURCE

DNA EVIDENCE AND MISCARRIAGES OF JUSTICE

The exposure of flawed DNA testing procedures at Queensland's John Tonge Centre contained in a leaked internal report, compiled by Ms Deanna Belzer on February 12, 2005, reinforced repeated claims made during the past six years by convicted bank robber Marc Andre Renton, that he had been wrongfully convicted on the strength of flawed DNA evidence. Renton's claims were substantiated by Australia's foremost DNA expert Professor Barry Boettcher.

Renton is not the only Queensland prisoner who has claimed he is suffering a miscarriage of justice resulting from the flawed testing procedures or the scientific interpretation of DNA evidence offered to Queensland courts by staff from the John Tonge Centre.

The Wayne Edward Butler case

The brutal murder of Natasha Douty, a Queensland resort worker who was bashed to death on a secluded beach on Brampton Island in 1983, remained unsolved for 18 years. Sydney businessman, Wayne Edward Butler, was holidaying on Brampton Island when Douty was killed but claimed he was jogging around the island unaccompanied for four hours at the time of the murder. He was originally eliminated as a suspect after he submitted to a blood test. Without an eyewitness account or confessional evidence the crime remained unsolved until Butler's arrest and conviction in 2001.

Butler's conviction became a flagship for DNA profiling in Queensland, after staff from the John Tonge Centre testified that semen found on a towel at the crime scene in 1983 matched Butler's DNA profile. That evidence was coupled with testimony that the chance of someone else having the same DNA profile as Butler was forty-three trillion to one. The ABO or blood grouping technology that originally cleared Butler as a suspect in 1983 was rejected by the jury in preference to the DNA evidence.

The Queensland Court of Criminal Appeal supported the jury's verdict and said the jury was justified in rejecting the results of the 1983 blood test on the grounds that DNA provides a more certain result and the blood samples may have been degraded. Despite the supposedly irrefutable DNA evidence, which convicted Butler, and later upheld by the Queensland Criminal Court of Appeal, he has steadfastly maintained his innocence of the crime.

Butler's protestations of innocence have again been reinforced by scientific conclusions from Australia's foremost DNA expert, Professor Barry Boettcher, who questions the DNA evidence put before the jury and the opinion of the Queensland Criminal Court of Appeal when it dismissed Butler's appeal. Professor Boettcher disagrees that an ABO test is forensically less certain than a DNA test and claimed "the only difference between an ABO test and a DNA test is that it is less discriminatory".

Professor Boettcher's scientific opinion is supported by his conclusion that it is not Butler's semen on the towel. The semen on the towel came from a man with blood Group "O". Wayne Butler is blood group "B". Professor Boettcher suggested that the errors in the DNA testing process relating to the Butler case could have resulted from the mislabelling of test tubes inside the John Tonge Centre—a fact that was substantiated during Butler's trial when staff from the John Tonge Centre admitted making labelling errors during the DNA testing process.

The Robert Paul Hytch case

Disputed DNA evidence in another Queensland murder case resulted with Robert Paul Hytch, 29, being freed from prison after he was acquitted of killing missing 16-year-old Bowen schoolgirl Rachael Antonio. A previous 1999 Townsville Supreme Court jury had found him guilty for the manslaughter of the missing Bowen teenager and he was jailed for nine years.

DNA evidence used to convict Hytch during his 1999 trial involved a spot of blood found on his sandal which forensic experts claimed was 900,000-1 chance of being from Antonio. It was argued at his appeal that the DNA evidence was so powerful, from an emotional sense, it had to impact on the jury decision but it should have been ruled inadmissible hearsay because the witness who gave the evidence during the trial merely read a report of work done by others.

The defence was not able to cross-examine those who did the actual work about the possibility of contamination or degradation of DNA samples. The blood found on Hytch's sandal could not be aged. The blood could have got there any time and there was no evidence to support the theory that she bled before she died because the body has not been found.

At his second trial Hytch's defence lawyer, Harvey Walters, argued that the whole case against his client hinged on dodgy scientific evidence. The defence called its own forensic expert who disputed the DNA evidence linking Ms Antonio to a sandal worn by Hytch on the night of her disappearance and the jury subsequently acquitted him.

Flawed DNA testing procedures and the questionable interpretation of DNA evidence is not solely confined to the Queensland legal system.

The Nick Lisoff Case

In NSW the spectre of planted DNA evidence surfaced when Nick Lisoff and two other men were arrested over a brutal 1996 bashing in which the victim lost a considerable amount of blood and required urgent blood transfusions to survive. The victim was rushed to hospital in a critical condition where he received a life-saving blood transfusion. Police went to the hospital and took a sample of the victim's blood to assist their investigations.

When the three men were arrested two of them pleaded guilty to the attack but Lisoff continued to protest his innocence. Police confiscated the track-suit pants Lisoff was wearing on the day of the attack to determine if there was any DNA evidence that could tie him to the crime.

An inspection of the track-suit pants revealed traces of blood splashed on them and when NSW forensic scientist, Bob Goetz, compared samples from the track-suit pants with that from the victim by using an automated DNA profiling system he concluded that the sample from Lisoff's track-suit matched the sample from the victim. Goetz calculated that the chance of the blood on Lisoff's track-suit coming from someone other than the victim was less than one in ten billion. It was conclusive and irrefutable scientific evidence but Lisoff continued to challenge it and protested his innocence with an alibi to the crime.

Lisoff's lawyers solved the impasse by hiring an independent DNA specialist, Dr Brian McDonald, to analyse the blood samples. McDonald analysed the blood samples using a different DNA profiling technique called "silver staining" and compared the victim's blood taken at the hospital, the blood from Lisoff's track-suit pants and blood taken from the victim several months later.

Dr McDonald discovered two weak bands indicating another person's DNA present in the samples taken from the victim in hospital and the same two weak bands were present in the sample from the track-suit pants. Those two weak bands were not present in the blood sample taken from the victim months after the attack. McDonald concluded that the two weak DNA bands came from the person who donated blood for the victim's blood transfusion because the police had taken their blood sample at the hospital after the blood transfusion had been performed.

Dr McDonald's scientific conclusions raised serious questions about the quality protocols and storage of DNA evidence. How did the victim's post transfusion blood sample get on the track-suit pants after he had been taken to hospital?

Lisoff's defense lawyer, Phil Hogan, summed up the situation during the June 27, 2002 ABC TV Catalyst program "A Shadow of Doubt":

To put it in a nutshell, people don't have a blood transfusion immediately before being assaulted and so the theory was that the blood on the track pants could only have got there after the victim had had the blood transfusions because the presence of all the extraneous DNA and therefore again the theory was that those blood traces on the clothes must have been planted. But how? For two weeks the track pants and the blood sample from the victim had been stored in the same police evidence room.

In the end it was decided that the scientific evidence was too complicated for a jury to decide upon so the case was heard before a single judge. The judge felt that there was a theoretical possibility that the evidence could have been tampered with although there was no firm evidence that a police officer had tampered with it. The judge determined he could not be satisfied beyond reasonable doubt and he acquitted Lisoff.

The Janine Balding Case

Twenty-year-old Sydney bank teller, Janine Balding, was abducted, raped and murdered in 1988 by a group of street kids. Stephen Wayne "Shorty" Jamieson is one of three men convicted for the crime but Jamieson has consistently denied any involvement in the murder. Those assertions are supported by two other men convicted for the crime who have also consistently claimed from the time of their 1988 arrest that it was not "Shorty" Jamieson who was with them when Janine Balding was murdered.

They have claimed it was another street kid named "Shorty"' Wells but investigating detectives were convinced they had the right "Shorty"' when they arrested Jamieson on the Gold Coast and extradited him back to NSW.

"Shorty" Jamieson was not convicted on forensic evidence. He was convicted on the testimony of a prison informer who has since died, the transcript of a police interview signed by Jamieson but disputed by his defence lawyers in court, and an eyewitness who said he had seen Jamieson with the co-offenders after the attack.

In 2001 the NSW Carr Government enacted legislation to cement ten of the State's worst criminals in their cells by marking their files "NTBR—Never To Be Released". "Shorty" Jamieson was among those targeted by the new legislation along with the other two Janine Balding murderers who were 14 and 16 respectively at the time of the murder.

In 2003 the NSW Premier, Bob Carr, announced the formation of an "Innocence Panel" in NSW comprising representatives of police, the Director of Public Prosecutions, the Privacy Commissioner and victims of crime. It was the first official body in Australia to review convictions where new DNA evidence had come to light and claims of innocence from prisoners could either be established or refuted. The purpose of the panel was to look at the material and where it thought the prisoner might have a reasonable case, to send that case back into the court system.

The panel swiftly ran aground after "Shorty" Jamieson made an application to have his murder conviction reviewed.

Despite the lack of forensic evidence at his trial Jamieson was the only person convicted of having anal intercourse with Janine Balding prior to her death. He applied to the Innocence Panel to have her underwear, and swabs from the rape kit tested for DNA. The Innocence Panel recommended the new DNA tests be carried out.

The results of the new DNA tests came through simultaneously with an announcement from the NSW Minister for Police, Mr John Watkins, that the Innocence Panel would be immediately suspended. Mr Watkins published a press release that said:

"Mr Jamieson's case before the Innocence Panel is a matter of great concern because of the effect on the family of the victim and as a result of issues raised in the Jamieson case that they hadn't considered, the panel would henceforth be suspended."

The DNA test results showed evidence that two people had anally raped the deceased. "Shorty" Jamieson was not one of them. The NSW Innocence Panel was suspended as a result of the findings while the political implications dictated that a convicted killer with his papers marked "NTBR" remains in jail with a letter confirming DNA evidence points to someone else being responsible for the crime he was imprisoned for.

"Shorty" Jamieson sought independent legal advice and he is now seeking a judicial inquiry into his conviction.

SIGNIFICANCE

There are standard procedures for carrying out DNA fingerprinting. Put simply, the DNA is first extracted from the biological sample—blood, semen, skin, sweat or hair—chopped into fragments which are then separated to give a pattern of bands on a slab of gel. The VNTR or STRs are tagged with a radioactive probe molecule, after transferring the bands to a nylon membrane. The pattern of the two samples are visualized by placing the membrane between two pieces of X-ray film. A direct comparison between the two can then be made.

Needless to say, there is plenty of scope for error in the above process—from mislabeling samples to keeping the sample at the wrong temperature (all biological samples are prone to degradation). In a properly accredited lab, staffed by trained technicians who understand the procedures, mistakes should not happen. But, as the article above points out, there have been many cases where the DNA evidence has been challenged on technical grounds. Added to the potential lab errors outlined above, there may be questions over the matching and interpretation of DNA fingerprints. Given that many countries are now in the process of setting up DNA databases to aid criminal investigation, it is increasingly important that standards of testing and interpretation are as high as possible.

While there is rightly concern that the innocent may be falsely convicted on the grounds of faulty DNA evidence, it should not be forgotten that the opposite is sometimes true. That is, DNA evidence has been used to grant people their freedom. The Innocence Project is a U.S. advocacy group that has promoted the use of DNA testing, post-conviction, to prove the innocence of 174 people wrongly convicted of sexual assault and murder. Several of those shown to be wrongly convicted were on Death Row and some within only hours of execution. In an interesting twist to this kind of work, DNA testing has shown, recently, that Roger Keith Coleman was indeed guilty of the rape and murder for which he was executed in Virginia in 1992. Coleman had vigorously protested his innocence during a very high-profile campaign.

FURTHER RESOURCES

Books

Jackson, Andrew R.W., and Julie M. Jackson. Forensic Science. Harlow, England: Pearson, 2004.

Lyle, Douglas. Forensics for Dummies. Hoboken, N.J., Wiley, 2004.

Web sites

The Innocence Project. 〈http://www.innocenceproject.org〉 (accessed February 26, 2006).

USA Today. "Increasing DNA Exonerations Contradict Predictions." 〈http://www.usatoday.com/news/health/2002-01-18-dna.htm〉 (accessed February 26, 2006).