"Genetic Justice": The Potential and the Real

Genetic Justice [1] is a survey of the major criminal procedure issues spawned by DNA evidence. According to the book jacket, the authors "explode the myth that DNA profiling is infallible" with  "a thorough discussion," "a lucid assessment," and "an inspiring vision." One astute reviewer describes it as "the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases and should, therefore, serve as a touchstone for debates about the spread of DNA profiling." [2]

Certainly, parts of the book will inspire debate. Published by a respected academic press, the book invariably presents or reflects the positions of two advocacy groups.The ACLU is a copyright holder, and one of the authors, Tania Simoncelli, was, until recently, employed as science adviser to the group. The other author, Sheldon Krimsky, is a professor of Urban and Environmental Policy and Planning and chairman of the board of the Council for Responsible Genetics. The CRG is "a national bioethics advocacy organization based in Cambridge, Massachusetts." [3] The book should be read by all who want to see the views of these organizations on the use of DNA evidence in criminal justice.

Whether those positions are convincing is open to debate. Some of the views in Genetic Justice strike me as extreme, and the strength of the book is breadth rather than depth, subtlety, or even accuracy in legal and policy analysis. At least, that is my initial impression. Of course, I am a rather critical reader, so, as time permits, I shall post some specifics to support this assessment. Or maybe I shall change my mind as I reach the end of the book.

For the moment, I am puzzling over the assertion in Chapter 1 (p. 26) that:

Sample contamination, misinterpretations or mischaracterizations of data, and the reporting of inaccurate or misleading statistics are all sources of human error that can and have occurred in DNA cases, sometimes resulting in the wrongful conviction of an innocent person.

Clearly, all these problems can and do arise with DNA evidence. But how many times have they caused "the wrongful conviction of an innocent person"? The authors do not offer a single example--at least not in this chapter. Instead, they write about "the potential for error and abuse" as illustrated by "the infamous Houston Police Department Crime Laboratory." They quote from a report on the laboratory's dismal practices that refers to "the potential [for] a miscarriage of justice." However, the quotation mentions no actual wrongful conviction.

I have not read the full 332-page report. The source cited in Genetic Justice (www.hplabinvestigation.org) does not exist. However, the problem is merely typographical. Links to the reports that the city commissioned are at www.hpdlabinvestigation.com. A press release on the report from the law firm that undertook it stated that:

135 DNA cases analyzed by the Crime Lab prior to the closure of its historical DNA operation in December 2002. The team identified major problems in 43 -- 32% -- of these cases, including in the cases of four death row inmates, Franklin Dwayne Alix, Juan Carlos Alvarez, Gilmar Alex Guevara, and Derrick L. Jackson. With HPD's approval, the independent investigation forwarded information about each of these DNA major issue cases to the Innocence Project network that is exploring what additional steps, if any, should be taken on behalf of these defendants.

That was 2007. Franklin Dwayne Alix was executed in 2010. The other three men, as far as I can tell from web pages, remain in prison. Genetic Justice provides no reason to conclude that a wrongful conviction was established in the other 39 problem cases.

I mention these facts not to claim that DNA evidence is infallible. It is not. The putative myths that the authors labor to refute might be found in the scripts of a few television crime shows, but they already have been "exploded" in newspaper articles, television news, and scholarly writing. Neither is my intent to defend the gross mismanagement of Houston's police laboratory. However, a book that purports to offer "a thorough discussion" should present at least one example to document its assertion that errors in DNA evidence have caused the convictions of innocent people. A large number of such cases could exist, and it would be surprising if there were absolutely none. But it is important to distinguish between the potential and the real.

Thus, I hope that readers familiar with actual cases of false convictions based on DNA evidence will comment on them here. Near misses also would be of interest. A few instances of incorrect DNA identifications during  investigations have been reported in the literature.

References

1. Sheldon Krimsky & Tanya Simoncelli, Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties, New York, NY: Columbia University Press 2011.

2. Simon A. Cole, DNA Evidence, Am. Scientist, May-June 2011, at 256.

3. Council for Responsible Genetics, Genetic Discrimination: A Position Paper Presented by the Council for Responsible Genetics, 2001.

(Cross-posted to the Double Helix Law Blog.)