DNA MATCH IS SUSPECT WITHOUT JUDICIAL OVERSIGHT
By Eric Goldscheider/Guest columnist
Friday, March 23, 2007
The most recent revelations about problems at the Massachusetts State Police crime lab raise deeply disturbing questions about the commitment to civil liberties at an institution that can deprive you of your freedom.
According to published reports, the turmoil leading to lab director Carl Selavka’s resignation goes beyond missed deadlines for reporting DNA matches. It seems the lab wandered into dangerous legal and ethical territory by conducting searches for so-called “familial links.” This is when in the absence of an exact DNA match to a suspect, technicians look for near matches in the hope of locating a family member.
It’s not that this practice is without advocates. Some see it as a legitimate tool for catching criminals. But widening the scope of DNA searches in the absence of legislative and judicial oversight represents a power grab chilling to anyone who believes the State Police is meant to serve the people, not the other way round.
With a national push towards broadening DNA collection to include not just convicts of serious crimes, but arrestees as well, it is imperative that scientists not take the law into their own hands. By lunging ahead of the rules under which it is supposed to operate, the lab in effect circumvented public debate on an important policy question.
Searching for familial links might be a useful tool in some situations, but its careless use will put us on a fast track toward the establishment of a de facto national DNA data base, according to Dr. Theodore Kessis, a Johns Hopkins trained geneticist who has consulted on forensic cases for a decade.
“Short of collecting every citizen’s DNA, familial searches are the ultimate in Big Brother tools,” said Kessis, “if the government came to the people and said, ‘hey, we want everyone’s DNA for a national database’, the response in this country would be, ‘are you kidding, absolutely not’, even from conservatives like myself.”
In some jurisdictions, 60 percent of African Americans have been arrested at some point in their lives. Among the rest of the population, many people have a relative, even once removed, who’s made an involuntary trip to the station house.
The mere fact that the State Police lab tolerated familial searches raises the question of who knew and when? It also gives a glimpse into the mindset of a lab that often behaves more like an arm of law enforcement than as a neutral arbiter of scientific information.
One need look no further than the Benjamin LaGuer case to see a pattern of forensic testing, sworn testimony, and advice to the judiciary that serves the perceived needs of police and prosecutors at the expense of basic fairness. It started with LaGuer’s arrest in 1983 when a State Police report was generated showing that fingerprints on a key piece of evidence were not his. For reasons that the late Justice Martha B. Sosman termed “unfathomable,” that report never made its way to the defense and hence the jury. When the report finally emerged 18 years later, the actual prints had been lost or destroyed while in State Police custody.
A second and equally serious lapse in the LaGuer case is that the State Police chemist wrote in the original forensic report that he could not determine a type for five of the six blood stains delivered to the lab. The sixth, he wrote in 1983, was Type B, the same as LaGuer’s. A 2001 DNA test on that blood showed it to belong to the victim, who had Type O blood. This is too basic an error to be excused without a full inquiry, especially as this error was introduced as fact at post conviction hearings and in the text of court decisions. To her shame, Worcester prosecutor Sandra Hautanen cited this false report in recent filings with the Supreme Judicial Court.
In 2002 a DNA test implicated LaGuer. The role of the State Police lab in setting up the procedures was not trivial. LaGuer’s expert performed a blind test of the evidence. The Massachusetts State Police catalogued and vouched for the integrity of the evidence and sent its own staff person to California to witness the test. Most importantly, the police lab drafted the affidavit that formed the basis for the court order, neglecting to alert anyone to what should have been bright warning signs for contamination.
Kessis believes the conclusions drawn from the test were wrong. The errors, he wrote in a letter to State Representative Ellen Story, were “of the human kind, individuals failing to understand the strengths, weaknesses and limitations of the test at hand.”
Now the lab seems to be showing what has to be characterized as either a reckless disregard for civil liberties or just plain ignorance by secretly moving toward the use of familial links. We think of laboratories as places where dispassionate science takes place. They should not be an arm of law enforcement where evidence is juiced, or in some cases falsified, to aid the prosecution.
“Remember,” said Kessis, “familial search plus databases that include arrestees equal a national database put in place without the blessing of the public.” Having studied the LaGuer case in some detail, he adds, “that the lab thought these types of searches where cricket, allows for a peek into the mindset of the folks LaGuer is dealing with.”
Eric Goldscheider is an Amherst-based freelance writer.
“One need look no further than the Benjamin LaGuer case to see a pattern of forensic testing, sworn testimony, and advice to the judiciary that serves the perceived needs of police and prosecutors at the expense of basic fairness.”
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That about sums it up, coupled with the fact that articles from both LaGuer’s apartment and the crime scene were handled by hand without proper protocol, thus contaminating each with small amounts of DNA from the other. So small if fact that all the LaGuer DNA pooled found on crime scene evidence does not amount to 3/100ths of a spec of dust (.03 nanograms). BTW, this is the same forensic scientist Rep. Ellen Story contacted in order to get a second opinion on the DNA conclusion ADA Hautenan keeps implying should prevent LaGuer from getting a fair trial.
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“To best understand the weaknesses associated with DNA testing we must rely upon the empirical, the occasions in which such deficiencies are revealed either by the press or internal review of a lab’s documentation of such problems by a defense expert. A close look at either
reveals that indeed many instances of DNA testing errors have lead to the false conviction of individuals. The types of errors seen in these cases are typically of the human kind, individuals failing to understand the strengths, weaknesses and limitations of the test at hand. It is my opinion that we have encountered such a case here.” ~Dr. Theodore Kessis, in his Nov. 1, 2005 letter responding to Rep. Ellen Story.
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Here’s more from the Havard professor that teaches people how to become DNA experts themselves:
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“I have examined the material you provided to me in the case of Ben LaGuer. I do not have anything much to add to the reports prepared by Dean A. Wideman and Theodore D. Kessis. Having examined these reports, I can join in agreement with their concerns that the DNA evidence in this case was very possibly tainted. The evidence in this case was collected at a time when standards for the handling of material for DNA typing was poor or nonexistent. The possibilities for mistakes were so serious that my colleague Dr. Lewontin and I were motivated to write a controversial article emphasizing the potential for errors, whether through acquisition and handling of the material or through misuse of statistics in interpreting the DNA types. (Lewontin, R. C. and D. L. Hartl, 1991 Population genetics in forensic DNA typing. Science 254: 1745-1750.)”
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It’s all there for anyone to see at benlaguer.com. I am more convinced than ever the state screwed up, and we have the egg on our face of having an innocent man in jail for 23 years. What adds insult to injury is how few people are motivated to ask questions or do anyhting about it. That in my eyes is the real crime. When did our citizens become so complacent? As Gandhi said, “Be the change you wish to see in the world.” That starts by caring enough to ask questions, and act on what you find.
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What seems to be overlooked at every turn is the ability of former District Attorney John Conte to control evidence.
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We have a Politician with a 30 year reign who never had ONE case overturned due to a false conviction!
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Simply put it was not allowed.
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If the state police crime lab actions are “questionable” certainly the DA who contrived the LaGuer scheme would appear to be the appropriate starting point for formal investigation from an outside source.
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It is hard to understand why people would go out of their way to convict LaGuer, but the proof is in the actions. Detective Carignan obtained a search warrant based on the false claim that the victim saw the assailant enter and exit Ben’s apartment. This was contradicted by the victim herself. He lied about taking items from his apartment. How else are Ben’s items in state custody? Carignan also told the grand jury that Mrs’ Plante identified LaGuer by name, and that the crime occured in his apartment. Both statements have been proven wrong, and the Detective knew this before he said it. You gotta ask yourself why?
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I don’t know why they would do these things, but it is fact that they did. These are not the only mistruths from the state prosecution either. When you add the racist element of the all male all white jury, and the lost evidence, this starts to look like a bad who-dun-it. Someone had those fingerprints last, and I would really like to know who “lost” them.
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As for the SJC saying that those fingerprints are not exculpable, that is just ridiculous. If they tested to be Jose Gomez’s, that would not have made a difference in the trial?! Bullshit. There’s something very wrong here. We’ll never know now whose fingerprints those were, and for the SJC to say it doesn’t matter makes me wonder what happened to our justice system. Ben LaGuer is a wake up call, and if he never gets out of jail we should still be asking ourselves if we can fall victim to the scenario he says happened to him. Where are the checks and ballances when there are so many unanswered questions? Is it better to keep innocent men in jail instead of review the facts for errors?