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Forensics
The reliance on science
as a cure for injustice
By KIRK MAKIN, Globe
and Mail JUSTICE REPORTEr, Nov 22, 2004
It is becoming known as the
"CSI effect" -- a syndrome that renders judges, juries
and the public incapable of accepting a defendant's innocence
unless he has DNA on his side.
Coined in honour of a hugely
popular television series, CSI: Crime Scene Investigation,
the CSI effect may have claimed Steven Truscott as its latest
victim earlier this month when he failed to win a new trial.
If so, lawyers say, he was
not the first to discover the downside of a revolutionary science.
However, they say his case highlights a steadily increasing belief
that science, particularly DNA, can correct any miscarriage of
justice, and that in its absence, it is unsafe to acquit or exonerate.
"DNA has become a false
panacea," veteran defence counsel Steven Skurka said.
"It has become a legal
crutch that we rely on to cure injustice. As a result, anything
less than the incontrovertible proof that DNA offers becomes
highly questionable, because the bar has been raised so very
high."
In recognition of that reality,
lawyers for Mr. Truscott searched desperately for physical specimens
they could analyze in a bid to overturn his 1959 conviction for
the murder of Lynne Harper.
"Because DNA is now the
best-known and surest means of exoneration, it has come to be
seen as a sort of benchmark for testing wrongful convictions,"
said Phil Campbell, a lawyer representing Mr. Truscott on behalf
of the Association in Defence of the Wrongly Convicted.
"I have had prosecutors
say to me, 'After all, this isn't a case where innocence can
be shown by DNA,' " Mr. Campbell said.
Federal Justice Minister Irwin
Cotler said in an interview that while many legal subtleties
lay behind his decision to refer Mr. Truscott's case to the Ontario
Court of Appeal, the absence of DNA was significant. "Yes,
I think it's arguable and plausible to say that had there been
DNA, it would have been different," Mr. Cotler said.
According to criminal lawyer
Frank Addario, the escalating importance of DNA has also made
it easy for governments and police forces to ignore areas that
are often at the root of wrongful convictions and cry out for
reform, such as faulty police photo lineup procedures and the
videotaping of police statements.
"Almost everyone in the
justice system is most comfortable with hard science," Mr.
Addario said. "Yet in almost every wrongful conviction proven
by science, there are all these other problems lurking."
In a new book, The Genetic
Imaginary: DNA in the Canadian Criminal Justice System, Carleton
University sociology professor Neil Gerlach maintains that public
faith in non-scientific evidence was originally rocked by the
wrongful convictions of Donald Marshall, Guy Paul Morin and David
Milgaard.
"Science was perceived
as having an objectivity and precision that promised to increase
the accuracy of judicial and jury decision-making," he said.
"Science, in other words, could increase public confidence
in the judicial system."
Prof. Gerlach said that press
coverage of wrongful convictions has played a large role in convincing
the public that eyewitness testimony is faulty, jailhouse informants
are individuals who will say anything to win favours, and overzealous
police and prosecutors are potentially untrustworthy.
At the same time, the author
wrote, the "charisma of genetic science" has helped
blind people to the fact that science can be fallible.
"In the press coverage,
individual subjective interests were seen as intruding on the
search for truth -- and DNA testing was represented as immune
from this."
The unparalleled influence
of DNA is also reflected in the record of the New York-based
Innocence Project, which has used it to overturn more than 100
serious criminal convictions.
"What those exonerations
should tell us is that the justice system sometimes fails,"
Mr. Campbell said. "It should make us more open to claims
of innocence, and determined to investigate them by whatever
means [are] available: DNA when we have it, hard work when we
don't."
One of the few Canadian exonerations
that lacked DNA was that of Clayton Johnson, a Nova Scotia man
convicted of murdering his wife by throwing her down their basement
stairs.
Yet, even there, science played
a pivotal role. Mr. Johnson's exoneration was rooted in expert
witnesses who concluded from the victim's injuries, the position
of her corpse, and the physical layout of the stairway that she
fell by accident.
"Cases without DNA require
the system to examine itself more closely, and to look harder
at the quality of the evidence relied on by the jury," Mr.
Campbell said.
"What may be creeping
in -- and should be resisted -- is the notion that because the
optimal means of establishing innocence may, in a particular
case, be unavailable, evidence which logically casts grave doubt
on a conviction can be ignored."
Mr. Skurka said the justice
system has to take a deep breath and keep DNA in perspective.
"The harsh reality is that in the vast majority of cases,
it is the credibility of witnesses that dictates the result,"
he said.
© 2004 Bell Globemedia
Publishing Inc. All Rights Reserved.
The case of the bloody
shoe print
By KIRK MAKIN, JUSTICE
REPORTER, Globe and Mail, Nov 22, 2004
DNA may be the king of forensic
science, but television and the news media have built an aura
of near invincibility around lesser forensic techniques as well.
A classic struggle over the
limits of scientific expertise was thrashed out last week at
the Ontario Court of Appeal in a murder conviction that hinged
on a bloody shoe print.
The key question was whether
an RCMP shoe-print expert should have been permitted to testify
at David Scott Hall's 2000 trial for the murder of a Sault Ste.
Marie woman, Peggy Jo Barkley-Dube.
Ms. Barkley-Dube, 27, was hacked
to death in the early hours of May 3, 1999. At the time, her
husband, a distant relative of Mr. Hall, was away in Florida.
Ms. Barkley-Dube was not sexually assaulted, and police ultimately
concluded that the murder scene had been staged to look like
a break-in.
With no obvious motive, no
murder weapon and no eyewitnesses, it was a genuine whodunit.
A partial imprint of a running
shoe left when the killer stepped in his victim's blood took
on even more importance once police discovered that only a couple
of thousand pairs had been sold in Canada. Armed with charts
that compared microscopic nicks and indentations in the sole
of Mr. Hall's sneakers to the bloody print, an OPP forensic specialist
pointed out a number of common factors.
In a submission to the Court
of Appeal, prosecutor Eric Siebenmorgen argued that the evidence
was too important to omit.
"While it is undoubtedly
true . . . that laypeople could independently appreciate certain
very obvious similarities between footwear impressions and shoe
treads, it cannot reasonably be maintained that laypeople could,
without expert guidance, appreciate wear or accidental characteristics
unique to a particular shoe," he argued.
However, defence counsel John
Norris insisted that shoe-print analysis is insufficiently reliable
to risk having a jury overwhelmed by an expert's aura of special
knowledge.
A skeptical Mr. Justice David
Doherty of the Court of Appeal jousted frequently with Mr. Norris,
suggesting that while shoe-print analysis may be less sophisticated
than fingerprints or DNA, jurors are perfectly capable of deciding
whether they think an expert is talking through his hat.
"With shoes, there are
all sorts of features that could correspond, and all sorts of
other features that don't correspond," Mr. Norris said.
"The difference is that shoes can change."
An "accidental characteristic"
such as a scuff or scratch in a sole can disappear within days,
Mr. Norris said. "If it is true that there are good reasons
to doubt the probative evidence, it should be stopped at the
gate by the gatekeeper: the trial judge," he said.
"The judge didn't caution
them about not giving it undue weight. The way this opinion was
left to the jury, it was almost impossible for them to come to
an independent opinion. It would have simply overwhelmed them."
Judge Doherty didn't budge.
"You were certainly free to argue [at the trial] that you
can't tell accidental characteristics from the man in the moon,"
he said.
After a short adjournment,
Judge Doherty, Madam Justice Eleanore Cronk and Mr. Justice Russell
Juriansz affirmed the conviction.
Once again, science had triumphed.
© 2004 Bell Globemedia
Publishing Inc. All Rights Reserved.
Real-life CSI
By Maggi Newhouse, Pittsburgh
TRIBUNE-REVIEW, April 12, 2005
He doesn't chase down the bad
guys and he's never first on the scene of a crime.
He works in well-lit conditions.
There are no strains of The Who music when he walks down the
street and he doesn't solve cases in 42 minutes.
Tom Meyers is a criminalist
-- the DNA and serology supervisor of the Allegheny County Coroner's
forensic laboratory. But that's about the end of the similarities
between him and his television counterparts on "CSI: Crime
Scene Investigation."
"People think it's so
glamorous, but 50 percent of the time, I'm looking at dirty underwear,"
said Meyers, a 29-year veteran at the lab. "How glamorous
is that?"
Television shows like CBS's
CSI and its spinoffs "CSI: Miami" and "CSI: New
York" have sparked the imagination of thousands of students
who are enrolling in forensic courses as colleges scramble to
develop programs to meet the demand.
The shows' fictional portrayal
of crime scene investigations have prompted real demands for
DNA and other scientific evidence from prosecutors and defense
attorneys in the courtroom.
It's what attorneys and judges
call the "CSI effect."
"The jurors' expectations
of criminal prosecutions have been altered by these shows,"
said Allegheny County Common Pleas Judge John Zottola.
"They expect fingerprints.
They expect all the DNA evidence. The prosecution has to bring
the jury home in that what they see on 'CSI' does not typically
happen in a real case."
Since the O.J. Simpson trial
in 1994, the public has come to expect more scientific evidence
in a case -- but Allegheny County District Attorney Stephen Zappala
Jr.said that raising of the bar has been a good thing.
"We recognize what the
expectations are," Zappala said. "We've really got
to try to use a lot of the tools that have become commonplace
on television."
Those extra demands can strain
the crime lab's resources, Meyers said, where the reality is
that not every piece of evidence collected at a scene is processed.
"You go until you have
probative results," he said. "We just don't have the
manpower -- the resources aren't there for us to look at every
piece of evidence."
That doesn't stop investigators
or prosecutors for asking for more, Meyers said.
"They might already have
their case, but it's just so the jury knows they did something,"
Meyers said. "The jury expects to see something nowadays."
When that something is there,
however, Common Pleas Judge Jeffrey Manning said it can be difficult
for the defense to overcome.
Manning presided over the case
of Jonathan Paul Jones, who was convicted in 2000 of raping two
elderly women after his semen was found at both scenes. Jones'
defense was that police had the wrong man.
"The chances of it being
someone else was 1 in 2 quadrillion -- that's a two with 15 zeros
after it. I opined that eliminates everyone on the planet and
everyone who's ever lived on the planet," Manning said.
"Forensic science is an incredible tool because you can't
fool mother nature. It either is or it isn't."
As a result, very few of the
cases that have strong forensic evidence ever make it to a trial
-- leaving cases that are based on eyewitness testimony or circumstantial
evidence for juries.
"Yes we have cases with
fingerprints -- not very many. Yes, we have cases with DNA. Yes
we have cases with bank surveillance photos, but the vast majority
of those end up in a plea of guilty," Manning said.
"There's no reason for
a defendant to assert his right to a trial by jury when he can't
win."
Defense attorney Patrick Thomassey
said the CSI effect can be used to a defense attorney's advantage,
but one must be careful not to cross ethical boundaries, such
as implying that the prosecution did not test or find fingerprints
or DNA when those types of evidence might be impossible to obtain
from a scene.
"You can't infer to the
jury that (the prosecution) didn't do something scientifically
when you know in your heart of hearts they couldn't," he
said. "It goes back to the kind of lawyer you want to be."
Former light-weight boxing
champion Paul Spadafora pled guilty in December to charges of
aggravated assault and carrying a gun without a license after
police say he shot his girlfriend Nadine Russo.
His entered his plea even though
his fingerprints were not found on the gun, no gunshot residue
was on his hands and Russo, now Spadafora's fiancee, said she
would not testify against him.
Had the boxer not pleaded guilty,
attorney William Difenderfer said it the trial may have been
difficult for prosecutors.
"The DA, in that situation,
is between a rock and a hard place," said Difenderfer, Spadafora's
attorney in that case. "The DA has to put on to the jury
that 'we did check for all this stuff and we didn't find it.'"
Washington County District
Attorney John Pettit said that's why it's important to be upfront
with the jury about what the case will and will not include.
"I tell the jury right
at the beginning what the case is about, this is what we're going
to have, that we don't really have any forensic evidence but
this is not a case where would expect that kind of thing. There
is no smoking gun," he said.
"You just make sure they
know what to look for as you're presenting the case and they
don't expect anything more."
And juries, for the most part,
decide based on the evidence, not on their initial expectations.
"Jurors are often asking
why wasn't that dusted for fingerprints, why didn't they do this
why didn't they do that," Zottola said. "For the most
part where there were acquittals, they wanted more or needed
more information. 'It wasn't explained to our satisfaction.'"
Manning gives juries credit
for pushing their perceptions aside.
"They decide the case
based on the evidence presented to them," he said. "Often
they have to acquit on the basis that there is not sufficient
evidence even though they believe the defendant committed the
crime. That's our process."
Fact vs. Fiction
Sgt. Paul McComb and his crew
of 11 detectives with Pittsburgh's mobile crime unit handle more
than 3,000 calls a year ranging from home invasions to homicides.
Unlike television, McComb said
his team rarely has time to finish processing one scene's evidence
before they're being called out to another scene.
On television, "they just
go back to the lab, they process the evidence and the next (case)
never comes in. Unfortunately, that's not real life," he
said.
"We laugh about it a lot.
We'd like that to be the only thing we're doing for whatever
time span."
From the criminalists who collect
and process evidence to the defense attorneys in the courtroom,
each has their own gripe about how television portrays their
real life jobs.
"I find it very difficult,
personally to watch those shows because they're so full of crap,"
said defense attorney William Difenderfer, who admitted his wife
is a fan of the long-running NBC series "Law & Order."
"The meeting with the
lawyer and the client in the DA's office? Unless the defense
attorney wants to get disbarred, that just doesn't happen,"
he said.
Allegheny County Common Pleas
Judge John Zottola said television sometimes portrays fingerprint
recovery as a common occurrence, when in fact, he rarely sees
that kind of evidence in a trial.
"I think I might get 10
fingerprint cases a year where they have been able to match and
identify," he said. "Jurors sometimes feel that if
someone has been at a crime scene you can pull that print. That's
typically not the case."
Maggi Newhouse can be reached
at mnewhouse@tribweb.com or (412) 320-7997.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
