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.
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