Now you see it … The Eyewitness Controversy

by Robin Sax

It happens in a flash, usually without warning, and certainly for victims and witnesses, without much in the way of preparation. One minute they could be minding their own business; the next they can be in the throes of a crime. Murder, rape, and robbery–you name it–crimes literally happen in the blink of an eye.

Just as quickly, a moment can change the trajectory of a defendant’s life. That moment is the moment they are identified as the one who did it. While courts and prosecutors have long given lip service of the magnitude of this issue, eyewitness misidentification has finally become a real issue that is finally being looked that’s to a historic ruling by New Jersey’s Supreme Court.

As a deputy district attorney in Los Angeles, I handled all kinds of cases with all kinds of evidence. Much of that evidence came from the witnesses and victims to the crime. Witnesses who often swore they could never forget the face of the bad guy. But could they? Really?  

Let's have some perspective here. The most heinous crimes out there–child abuse, sexual assault, rape, domestic violence, elder abuse, and stalking–are crimes that are perpetrated by someone whom the victim knows, and often knew well. These are the cases you hear about in the news. Less discussed are the “stranger” cases, where the victim and perpetrator have no connection, didn’t know each other, and were only brought together through some random (or not so random) senseless act of violence. These are the “ID” cases.

Witnesses are supposed to be considered just like any other type of evidence in a case --blood, sperm, fingerprints-- but they’re not. We all know that the truth is, juries love witnesses. Nothing persuades a jury more than the, (cue the theme music) “Law and Order” moment when a witness takes the stand, looks over, and points to the suspect and says, “There he is. He’s the one who did it.”

In every case, the prosecutor is trying to figure out whether they can make a case. And while we try not to put the pressure on victims to perform the reality, there is a great deal of importance in determining whether the witness can testify credibly, whether their story makes sense, and, more importantly, points to who did it.

The defense attorney, on the other hand, is trying to hold the prosecutor to the burden of proof the Constitution guarantees–that is, the prosecution must prove its case beyond a reasonable doubt. So, as a defense attorney, those words of the witnesses are not about simply making a case; they are about making darn sure you have the right dude.

In my defense work, I pride myself on acknowledging that a crime may, or assuredly did occur. However, I am going to make sure that the prosecutor can prove that the perp is my dude, and not some other dude or SODDI, the known acronym in the legal world for “some other dude did it” defense.

We all know about reliability issues with witnesses. Some have an axe to grind, some have a prior relationship, others have a criminal record or unsavory past, some are drug users, hookers–you name it. But credibility issues are one thing; witness reliability when they are otherwise credible adds a new wrinkle to the equation.

And this is a wrinkle that will really make a dent in criminal prosecutions and finally confirm what defense attorneys have been groaning about for years. And that is that eyewitness identification is inherently flawed. Make no mistake, the New Jersey high court’s ruling could forever change the way police use witnesses to identify bad guys. The US Supreme Court is going to weigh in on the entire issue for the first time since 1971.

Here’s what I’ve witnessed myself over the years: When witnesses say they are 100-percent sure, I’m 1000-percent sure they are not. Why? Our minds and our memories are far from perfect. Sometimes we can’t remember what we had for lunch yesterday. Think about what can happen when a crime is involved. Think about the fear, hate and all kinds of trauma involved here. The chance for unaffected memory is next to zero.

Now, let’s add on the impact of law enforcement. Let’s say you’re a rape victim. The cop who comes in to help you catch the rapist is going to have enormous influence on you. So, if he or she shows you a photo of the bad guy, chances are you will end up agreeing with the choice. I’m not suggesting this is a deliberate act, but it happens all the time. We are only now beginning to understand how a witness experiences and remembers events, faces and time.

The New Jersey Supreme Court Justice, which ruled in the case, said it best: “A vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory.” 

Barry Scheck, founder of the Innocence Project and who is famous for using DNA to overturn wrongful convictions, released the following figures from the Project’s files. Of the first 250 wrongful convictions cases overturned by DNA evidence, 190, or 75 percent, involved eyewitnesses who turned out to be flat-out wrong.

Now the courts are finally acknowledging there are issues of eyewitness identification. The question is what is the solution? Prosecutors would like to say defense attorneys could simply argue their cases (but how?), some defense attorneys will argue for exclusion, suppression or limitation of the evidence altogether. Courts allow for experts to appear to testify about the inherent flaws, or even permit jury instructions that address the issues inherent to misidentification by guiding jurors through the process. All of these may be great solutions but they are fixes to a bad identification.

When a person is facing incarceration, loss of liberty and other collateral damages, after-the-fact fixes are just not good enough. We live in a country that forces prosecutors to meet their burden of proof.  Isn’t it time law enforcement be held to the standards that correspond to that heavy burden?

So what am I suggesting? I am suggesting we do something about identification at the critical moment when the initial interview and identification is happening. That is creating a standardized “best practice” system to account for the inherent issues of misidentification, lack of reliability and suggestibility. The simplest and easiest of these can be done right now with only the cost of a tape recorder. If police are required to tape the entire interview with each witness, victim, and suspect then at least everyone can hear verbatim what went down, how the interview was conducted, and how an ID occurred. It is a transparent option that at least will allow attorneys to argue and then jurors to decide for themselves if the identification was good or bunk. There are tons of other ways too, but in a budget-conscious society, one resistant to change, let's start simple with a $15 tape recorder.

If we clean up that part of the investigative chain, we’ll all be able to live with the results as the case makes its way through the system. Memories are flawed. Law enforcement can be too. Let’s remove as much of the human-error part as possible. It’s going to be a better result for justice, which is better for everyone.

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Failure to Test is a Failure of Justice

by Diane Dimond

The evidence had been there all along. It had been sitting on a shelf inside a cold storage facility at the Houston Police Department for 12 years. After a determined detective tracked it down and sent it off to the lab for testing the state of Texas realized it had a found a serial rapist. The criminal’s name is Roland Ali Westbrooks and his story highlights why every state in the union should make testing of backlogged rape kits a top priority.

For more than two decades law enforcement has had the ability to take even the tiniest specks of evidence from a rape victim – bodily fluids, stray hairs, fingernail scrapings – and match the DNA findings to information stored in a national data base called CODIS. Every time a rape kit is processed the DNA print is supposed to be entered into CODIS. And the reason for this is simple: Rapists rape repeatedly. They hardly ever have just one victim.

One study on serial offenders puts the average number of a rapist’s victims at seven while another study puts it at 11. To put this in perspective, realize that if we get just one of these perps off the street we’ve prevented several future crimes. Every year in America there are roughly 200 thousand reported rapes and it is not just women who are attacked. 10% of all rape victims are men.

The first time we know Roland Ali Westbrooks struck was in August 1995. It was a nighttime home invasion and his victim was a complete stranger, a teenager girl alone in her bedroom. Houston police say as he put a pillow over the 16 year olds face he threatened to kill her if she screamed. The girl reported the attack immediately and submitted to a complete rape examination.

Like tens of thousands of other rape kits nationwide her evidence package was never processed and no one was ever arrested for her brutal assault. After a cold case detective re-opened the teen’s case earlier this year and ordered the DNA in her kit to finally be processed, her rapist was identified as Ronald Westbrooks. The good news was that he was already in jail! The bad news was that Westbrooks was in prison because he had been convicted of another rape – a crime that occurred in 1997 – two years after the attack on the teenager. That attack might never have taken place if the 16 year olds rape kit had been tested in a timely fashion. Police suspect Westbrooks left more victims and are investigating that now.

To be sure states have made some progress in winnowing down their backlog of rape kits. When I first wrote about this topic in 2008 there were 400,000 bundles of untested evidence. Today, the best estimates put the national number at about 180 thousand. But that’s still way too many.

Sometimes lab work isn’t necessary as police have already gotten a confession or the victim withdraws the complaint. But in too many other cases it becomes a matter of indifference, inconvenience or finances. Each test costs about $1,500.

In most jurisdictions it is still up to the discretion of the investigating detective whether to order up a full lab analysis of a rape kit. Usually the victim is never told whether her evidence has been processed or relegated to some shelf to gather dust I can think of no other crime where police have definitive evidence of a crime and fail to process it. I think it is unconscionable.

Information from these kits, entered into CODIS, would likely mean numerous outstanding sex crimes could be solved. The perpetrator could be identified, taken off the streets or slapped with a longer prison sentence if they are already behind bars like Roland Westbrooks. More importantly, victims could finally feel a sense of justice.

It’s already happening in Texas. The popular Texas-based blog Grits for Breakfast reports that when “Tarrant County tested their entire backlog they identified five serial rapists by matching the results to CODIS.” Imagine – five dangerous criminals were scooped up just by testing evidence that was already there!

May I be so blunt as to ask, “What the heck are we waiting for?” And don’t tell me it’s a matter of money. The money spent on processing these kits would be far less than what we would have to pay out to investigate and prosecute these rapists’ future crimes.

I call for a nationwide initiative to examine every relevant kit. Let’s get every state to dedicate one group of lab technicians to examine the most recent kits so as to stop currently active rapists. A second group should examine the oldest kits with an eye on the ones that might come up against a statute of limitations problem. Let’s get that information into CODIS and see how many more perps we can get off the streets.

The perfect tool is already sitting there if we would just use it! Anybody with me?

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DNA Manipulation

by Andrea Campbell

When technology gets better, there will always be someone who wants to defeat the system. It’s comforting to know that progress is continually being made in order to stay ahead of the criminals.

We’ve talked a lot about biometrics and DNA. These are thought of as irrefutable biological characteristics that help to define and identify just who we are. That’s why when I saw the headline, “DNA Paternity Test Almost Fooled,” I had to know more.

Who’s Your Daddy?

Paternity tests use DNA to allow people to discover their origins, such as who are my mother and father? DNA has longed been used for this process and there are reasons that someone would not want to be found—mainly child support payments. In 2007, someone found a way to confuse the identification system temporarily and it has now prompted a new methodology because of this person’s brash moves.

Apparently the fraud attempt was predicated by a DNA paternity test.

The paternity test is done just as one would do for a crime suspect—samples of saliva cells are collected from the mouth. In this particular case, Dr. José Antonio Lorente Acosta, Director of the Laboratory of Genetic Identification at the University of Granada, carries out forensic tests just like these as commissioned by the court in cases of paternity, and for the identification of possible criminals, or else to contribute to DNA databases such as in the case of trying to locate missing relatives.

In this 2007 case, epithelial cells were collected from the interior of the mouth by a person undergoing a paternity test, which gave an incongruous result. The research team questioned their procedure and found they had not changed anything. The suspect washed his mouth and, “... after repeating the analysis, there was only one possible conclusion: In the mouth of that man there was DNA from two different persons,” says Dr. Acosta. They, of course, arranged to meet the subject again and found out that shortly before he took the test, he mixed his saliva with someone else’s that he had concealed on his person in a small container, hoping to mislead detectives. As it turns out, the test was repeated and he was found to be the biological father in that particular case of judicial investigation. This case prompted a modification of all future tests, as now it would be compulsory for the donor to wash his mouth out, but this time in the presence of a witness.

The Grim Sleeper Case

A Los Angeles' serial killer who was thought to have killed at least 10 people, was caught by detectives who used a familial DNA search and that, and new databases, has made somewhat of a breakthrough. Only Colorado and California currently have laws specifically allowing the use of familial DNA match. The practice has drawn criticism from privacy advocates who fear that innocent family members will be targeted if they have the misfortune of being related to a criminal.

The research policy, however, is restricted to major violent crimes, and only after all other investigative methods have failed. Apparently the majority of the Grim Sleeper’s killings were committed in the 1980s. Unfortunately the crimes restarted after a 13-year absence, with the latest one occurring in 2007. This prompted Los Angeles' police to look for a “similar” DNA profile. Hoping they might find a relative for leads, after running several tests, some DNA was identified as the suspect’s son. The after-effects of this case and use of familial DNA will surely set precedents for its future use, as well as new policies as other states adopt the process. First published in Forensic Magazine.

Take That Robbers: DNA Mist

This new technology is fairly genius and was discovered in the Netherlands. We’ve all seen in films where the bank puts explosive dye packs in the money bag in order to mark the criminal after it explodes. They open the bag to get the money and are showered with indelible ink. Now there is a DNA spray mist! The applicator is positioned on the door of a bank or other business that has funds. Every person who enters is misted with a DNA spray that has no odor and is completely unnoticeable. The synthetic DNA compound settles onto hair, clothing and skin without knowledge. Of course, somewhere on this person is a trail that has a fluorescent marker that can be detected using ultraviolet light. Not only that, but the DNA can be made unique to a particular location. Good thinking that.

All photos are Clipart.com

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A Funny Thing Happened on the Way to Perugia

by Anne Bremner

Given the continuing scrutiny of the forensic evidence in Amanda Knox's trial, I've asked my friend, Mark Waterbury, Ph.D, a member of The Friends of Amanda Knox, to give us his thoughts on the evidence. Most recently, Mark has authored and released a book, The Monster of Perugia – The Framing of Amanda Knox, which is now available in Kindle (eBook) format on Amazon.com.

by Mark Waterbury
A funny thing happened on the way to Perugia.

In December, the court in Perugia, Italy, that is hearing the appeals of Amanda Knox and Raffaele Sollecito ruled that independent experts should review the DNA forensics work of the Polizia Scientifica. In particular, it asked the experts to take a fresh look at the only two items of evidence that the prosecution claims connect Amanda and Raffaele to the crime. Those items are highly contested by the defense because of the unique and irreproducible handling of the evidence, as well as the interpretation of testing results.

A review of the methods and interpretations has been a longstanding demand of the defenses.

The first item of evidence was a kitchen knife retrieved from Raffaele’s kitchen implements drawer. Although it does not match the knife wounds, does not match an imprint left on a pillow at the crime scene; and although it tested negative for blood with TMB and the DNA profiling systems reported “too low” as the test result, the prosecution’s forensics expert twisted the controls to blow up the noise at the bottom of the graph. Voila! In a DNA profiling lab with many samples of Meredith Kercher’s DNA, both before and after PCR amplification, a noise level trace appeared. This kind of contamination is not unusual at all.

The other item was Meredith Kercher’s bra clasp, which was cut or torn from her bra during the assault. The strap was spotted and photographed soon after but not retrieved until 47 days and unknown exposure later. At this point in the investigation, not one single shred of DNA evidence, or fingerprints, or footprints, or anything else connected these two defendants to the scene of the crime. That implies very strongly that these two defendants were innocent, and that the murder was committed by a third defendant, Rudy Guede, who has already been convicted. Guede left extensive traces at the crime scene, and even admits being present.

Instead of releasing Amanda and Raffaele in what I call a "hail Mary" clasp play in my book, The Monster of Perugia – The Framing of Amanda Knox, the investigators went back in 47 days later specifically to retrieve that bra clasp. By remarkable coincidence and unbelievable luck, it showed a contamination level DNA of at least three people, and was compatible with the DNA of Raffaele Sollecito. It was also compatible with many, many, other people because it is a mixed DNA profile at trace levels.

The funny thing happened when these new experts appeared in the Perugia court and one of them asked if they could dismantle the knife handle to inspect the tang, the part of the blade that secures the knife to the handle. The defense had no problem with that, but the prosecution and the civil attorneys that side with the prosecution fought it tooth and nail.

The prosecution has claimed that this item is powerful evidence against Amanda and Raffaele. Why should they be afraid to take a closer look at it? In fact, why didn’t they examine the insides of the knife handle long ago? If it was, in fact, used to commit a stabbing, blood certainly would have made it to the handle and some of it would wick up into the joint between the blade and the handle. Critical evidence would be preserved at that point. Yet, the prosecution never looked for it, and now doesn’t want it examined.

The appeals judge granted the independent experts the right to dismantle the knife, and we 'll now wait 90 days for their report.

Click to find more information about Mark Waterbury's book or Amanda Knox evidence.

Mark is a Ph.D. in materials science with 20 years of experience, including as a scientist for the Air Force, an engineer for a major engineering firm, and CTO for two companies. He's also developed a number of measurement techniques, holds several patents, and has worked on a wide range of scientific projects. Most recently, Mark started his own firm, Perception Development Co., which provides consulting services and development of a variety of new products and technologies.

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A Particularly Unsettling Exoneration

by Laura James

The Court of Appeals said the evidence was "overwhelming." Nathaniel Maurice Hatchett confessed to carjacking and raping a woman. The victim identified him as her attacker. He was caught driving her car three days after the crime.

Yet Hatchett walked out of a Michigan prison after serving 12 years, because the semen found on the victim did not match him. The current prosecutor remarked: "We went back in and did a full investigation. We could have fought for a new trial, but our job is to seek justice. It was served today."

Now for the unsettling part: the prosecutor, trial judge, and Court of Appeals knew at the time of his trial that the DNA from the semen did not match the defendant, but the 17-year-old was convicted anyway. It now appears that the only "overwhelming" evidence in State v. Hatchett was of prosecutorial abuse and judicial incompetence.

They also knew that when Hatchett was caught with her car, the ignition had been popped out. Curious. The carjacker left the victim on the side of the road and took off - with the keys in the ignition. Why would he break the steering column if he had the keys? They also knew some details from the confession did not match the victim's account. For example, the defendant denied robbing her. The most burning question concerned the DNA result. When weighed against a victim's cross-racial identification, even against a confession elicited after several hours of interrogation of a teenager, isn't DNA evidence from semen, in a rape case, a trump card?

Apparently not. Said the trial judge: "[The DNA can] hardly be found to represent a reasonable doubt considering all of the evidence in the case. The court does not find that the laboratory analysis is a fact which would lead to a verdict of acquittal."

DNA - not exculpatory? I find that logic quite strange. By the way, that trial judge is now a federal judge - appointed by President William J. Clinton.

But surely there are smarter judges at the Court of Appeals level, right?

The appellate decision is available online. The bizarre logic applied by the unanimous, three-judge panel that affirmed Hatchett's conviction makes for hair-raising reading. Said the Court of Appeals: "We agree ... that while the DNA test results introduce a slight doubt ... there are several plausible explanations for these results." The Court of Appeals goes on to give two "plausible explanations." Not "several." Two.

One: "The victim told the treating nurse that defendant ejaculated 'on' her, and she told the treating physician that she was only 'fairly certain' that defendant ejaculated at all; therefore, it is altogether possible that defendant's semen would not be found in the victim's vagina or in her underpants."

This is quite curious reasoning. Someone's semen was found on the rape victim. Do these three judges have their heads in the sand? How can the judges choose to question the victim's veracity when she described her attacker's ejaculation while simultaneously refusing to harbor any doubt about her identification of Mr. Hatchett as the rapist? They said her evidence was "overwhelming" - and I guess it was, except for the details.

Two: "The donor might have been the victim's spouse." That is a plausible explanation. So why didn't they obtain a racial profile from the DNA? Or better yet, test the husband? When 25 to 40 years of a man's life are on the line, why was that question posed but not answered?

As it turns out, the husband was in fact tested. He did not match the DNA from the semen. The prosecutor never brought that fact to the attention of the defense attorney, the trial judge, or the Court of Appeals. He is still a prosecutor today - and he actually denies knowingly putting an innocent kid in prison, all evidence to the contrary notwithstanding.

Unfortunately, nothing will come of it. The prosecutor won't be affected. The trial judge now has a lifetime appointment. None of the appeals court judges will even see their names in the paper, let alone be made to feel like court jesters, as they should. Judges William B. Murphy and Donald S. Owens are still sitting on the Court of Appeals.

Mr. Hatchett is the 216th person freed by DNA, his exoneration coming at the behest of the Thomas M. Cooley Law School's Innocence Project. What a shame for Nathaniel Hatchett that 12 years had to pass before the DNA evidence that was there all along was brought to the attention of fair-minded men.

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Can You Get DNA from Bullshit?

by Laura James

(cross-posted; art via)

It's a clever business strategy, I'll give them that.

It goes like this:

One: In your dungeon laboratory, develop a way to fabricate forensic samples of DNA from a particular person -- a way to create a "fake" sample.

Two: Write a paper that explains precisely how anyone with a chemistry background can fake a DNA sample and publish it on the internet.

Three: Call into question the fundamental reliability of every DNA sample ever taken into evidence anywhere, because, after all, you've now proven they can theoretically be faked.

Four: Form a corporation to develop a patented method of detecting faked DNA evidence.

Five: Market your sorry-not-free "authentication assay" to every law enforcement agency on earth as "necessary for maintaining the high credibility of DNA evidence in the judiciary system."

Finally: Land a feature in the New York Times.

Alas, all this has already happened. The company is called Nucleix.

It is immoral, unethical, and offensive to me that these men have done this. But they have. One small group of misguided souls has actually managed to think up a way to undermine the best method of forensic science ever discovered. In doing so, they managed to craft whole new arguments for defense attorneys (and the occasional stupid prosecutor) to try on unsophisticated jurors. Already the ACLU is yapping about it.

I hope this fake DNA boondoggle is not taken seriously and gets no more media attention than it already has. I also hope others will call them out on this. That Andrew Pollack and the New York Times helped to promote this obscenity with no apparent regard for the ethics of doing so was in and of itself offensive to me and only confirms my low opinion of that newspaper. In this piece, the Times again proves itself a corporate tool.

If this company (Nucleix, not the Times) had an ounce of integrity, the cure it is marketing for the disease it invented would be as readily available on the Internet as the instructions for "faking" DNA results.

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"I Used To Be Mad..."

by Katherine Scardino

That’s what Ernest Sonnier told the reporter who asked how he felt after spending 23 years in prison for a crime he did not commit. Harris County, Texas, now has the distinction of having convicted six innocent people that we know of. They are the six fortunate individuals who could scream loud enough to get the Texas Innocence Project to look at their cases and demand action. I am on the board of the Texas Innocence Project; I learned last week it has more than a thousand cases to review to determine if there is even one more out there who should be freed. That's in Texas alone. Only a handful of workers are willing to labor that hard for so many hours and so little pay.

Mr. Sonnier spent his 23 years in prison knowing he was innocent. His family knew he was innocent; his mother says she knew because he was at home with her.

How often do prosecutors hear that alibi? Yeah, right, home with mom. The law says that until someone is convicted, he is presumed innocent. Why is that so damn hard for prosecutors and judges to remember and honor? Why have we all become so prejudiced against people accused of committing crimes that we assume they are guilty, no evidence required? Just ask someone accused of sexual abuse of a child whether they felt their jury looked at them fairly.

So, what happened to Mr. Sonnier? He was convicted in 1986 for the 1985 aggravated kidnapping and rape of a woman who lived in Alief, Texas. Two men grabbed her and raped her repeatedly in their car until they stopped at a store, giving her the chance to flee and call police. DNA evidence was handled poorly by the prosecutor and the Houston Police Department Crime Lab. The newspaper article about Mr. Sonnier’s release used the phrase “faulty forensics." Translate that to “HPD Crime Lab technicians lied.” There are only two ways you can get “faulty forensics” - falsifying results and lying in court, or contaminating evidence, knowingly or not.

It was not unusual several years ago for crime lab technicians to assume they worked for the prosecution and that their test results should help prosecutors. Such skewed results meant some innocent people, like Mr. Sonnier, wasted their lives in prison.

I cannot, in my wildest dreams, see how anyone could maintain their sanity and humanity while locked in prison for a crime they did not commit. I can't imagine the thoughts that would course through my mind -- about the hopelessness, helplessness and sheer futility of life, not to mention my seething anger.

The repercussions of losing most of the good years of your life? How about the aging of yourself and your family? Your children, nieces and nephews are all grown after 23 years. Your parents may be dead or in failing health. Your health has most lik ely deteriorated because of poor medical facilities in prison or the aging process we all endur e. But we endure it in freedom, with access to the best medical facilities available. Mr. Sonnier barely had a doctor or medication, let alone access to Texas Medical Center.

The problem is simple: Arrogant power controlled by small minds. The solution is not so simple. It would be a large step forward if our judges and prosecutors really believed in the presumption of innocence.

So, Mr. Sonnier, how do you feel today? Are you angry?

“No”, he says... "I used to be mad...”

Bless your heart, sir. Our best wishes for the rest of your life.

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Caravan To Catch A Killer

by Susan Murphy Milano

With a donated van, Dr. Maggie Zingman prepared for her first road trip in 2007. Since then she has driven to 33 states and 42 cities in hopes of catching a killer. Now, eighteen thousands miles, 5 caravan trips, and 2,000 ruled out DNA possible suspects later, she continues visiting homicide units, college campuses, and sporting events like the PGA tour, passing out the killer's information in hopes someone may provide a tip or a lead.

Her daughter, Brittany Phillips, was found raped and suffocated inside her Tulsa apartment in 2004. Britty, as she's called, was buried on her 19th birthday.

In Florida last week after an exhaustive day of meeting with police and passing out information on the beach we spoke by phone. " I searched high and low, looking for tips, clues, anything that would lead to the capture of my daughter's killer. The only thing that did not make me go crazy after my daughters murder was police detectives said she died instantly."

This remarkable woman is a psychologist at the Mabel Basset Correctional Center in Tulsa, working in the area of trauma and sexual assault. She could never imagine her personal experiences and work with other victims would run parallel with the death of her daughter. The stories she hears on a daily basis from the women she works with is now a harsh reality for her.

When she has saved up enough vacation days at work, using her own money she carefully plans the road trips driving in towns across America in her SUV, a moving billboard that literally tells the tragic details of a young woman's life abruptly taken away.

Dr. Zingman understands the new technologies that allow tiny bits of DNA found at crime scenes to be scooped up and tested. While on the road she spreads the word of new federal and state laws requiring law enforcement to collect DNA samples from people convicted of-- or simply arrested for -- nonviolent crimes, including shoplifting. She is advocating for every State to do a DNA test upon arrest.

Police have Brittany Phillip's murderer's DNA and because of this "Teflon mom" thousands of men have been tested, but no killer has been found, leaving Brittany's mother motivated to continue to ride in search of the man who brutally took her child's life. Some would argue that Maggie is looking for a needle in a haystack and the killer may be never be found. "Once chance in a million, is better than no chance at all."

Dr. Maggie Zingman plans to do another road trip in about six months. She will not stop until Brittany's killer is found.

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The Supreme Court and DNA: I'm Embarrassed for Them

by Laura James

The United States has always been woefully behind when it comes to forensic science. The forensic techniques so critical to criminal justice today were all discovered in Europe.

From fingerprints to arsenic tests to DNA, European scientists and European courts have led the way for centuries. And in 2009, that continues to be true.

In June 2009, the Supreme Court of the United States, on a 5-4 vote, refused to help an inmate whose access to DNA evidence was blocked by the state. The Supreme Court refused to acknowledge a right to DNA testing. The opinion is an embarrassment to me as an American.

Even though the Chief Justice acknowledged, right up front, that DNA evidence "has an unparallelled ability both to exonerate the wrongfully convicted and to identify the guilty," the Supreme Court said it is comfortable leaving it up to individual states to decide how much access to grant for DNA testing. And if they don't allow it, well, that's too bad.

The stated reasons for this decision were federalism -- the idea that each state is a nation unto itself -- and "finality" -- the idea that judges are too lazy to hear umpteen appeals. How deplorable of a court to cite "finality" -- to my way of thinking, a case isn't "final" until the execution is held or the sentence served.

But in the opinion filed by Justice Alito, you see a hint of the truth. In reality, the justices just don't think all that much of DNA evidence. Justice Alito (page 31), claims that DNA "often fails" to provide clear proof. He quotes resources on the difficulty of collecting crime scene evidence. He doesn't believe in the science.

The bottom line is, until we get a Supreme Court with faith in science in America, a convicted man can have access to potentially exculpatory DNA evidence depending on where he lives.

In Kentucky, only death row inmates are permitted access to DNA evidence. So if you're serving forty years for rape, tough luck.

In Alaska, a prosecutor can block your request for exonerating DNA testing for no logical reason. Tough luck, folks.

In America, we ought to have more respect for DNA evidence. I can't help but wonder if the United States Supreme Court would think more of DNA evidence if the science had been developed in the United States to begin with. Meanwhile, my inner flag dips as I hope that other countries and other justice systems continue to look elsewhere for leadership in forensic science.

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Is Rover Reliable?

by Katherine Scardino

I have recently been reviewing some material having to do with some evidence that the State of Texas wants to introduce in a death penalty trial scheduled to begin in October 2009. I am truly astounded that the prosecutors would even consider this evidence as appropriate for a case where a man can lose his life.

I have always heard of dogs sniffing cars, purses or other belongings of citizens to see if they are “holding” drugs. Dog scent evidence is pretty commonplace around the courthouses where I practice law. Lawyers are always trying to figure out a way to outsmart these drug-sniffing dogs who have been trained to find controlled substances - and they usually do. I once had a dog alert on me at the Houston international airport, because I had an apple in my purse that I had purchased in Mexico but “smuggled” into the United States.

My client was accused of capital murder in 1992. He was tried in 1994, and because of other circumstances that we do not need to discuss in this article, his case was overturned by the Fifth Circuit and remanded for a new trial in 2006. From 1994 until 2006, this man lived on Texas’ Death Row. Now, he is in the county jail where the offense occurred awaiting trial.

So, we are working on his case; things going along pretty normally. About a month or so ago, I received an email from the prosecutor advising me that he has obtained a search warrant from some magistrate (not the district court judge who will hear this case) to go to that county jail and obtain scent evidence from my client through swabs of certain areas of his body. That all sounds like it might be OK - except that the prosecutor plans on having a dog smell my client’s scent and then attempt to connect my client’s scent to the scent of this 1992 evidence that has been stored in cans in an abandoned jail since 1994. In case your math is about like mine - that is 15 years ago. So, the bottom line is this: can a dog small your scent and then sniff the 15 year old evidence and make a valid connection between your scent and the evidence? And, if one assumes that this is legitimate science and credible, then it is proof that the defendant is connected to the crime.

The defense team is obviously not going to take this lying down - right? So, we do some research. One of the interesting articles we found is from Florida and from the Orlando Sentinel newspaper today. The article discusses three men who spent twenty-something years in prison for crimes that DNA now proves they did not commit. Each of these three men was convicted by the prosecution using a German shepherd named “Harrass”. The articles indicates that the only way the owner of Harrass was discredited was by the judge testing the dog himself. Is that what it really takes? Does a judge have to step down off the bench, take the dog by its leash, and see if the dog actually alerts to a valid scent without his owner/trainer. Apparently, the dog did not alert to anything when the judge was testing him.

We have in our jurisdiction an owner/trainer of three dogs who are just as wrong as Harrass was in Florida. We have a situation where my client could be sentenced to death and part of the State’s case will rely on the dog sniffing lineup of 15 year old evidence. Do you think a dog can connect a scent to evidence that is this old?

What about the legal “reliability” of scientific evidence? Is it really scientific evidence - or is it just junk science? And, if it is just junk science, why are we using it to possibly execute a citizen?

But, the real problem has to do with the mindset of the prosecutors who are willing to use this evidence to convict a man of capital murder and possibly obtain a death sentence. Am I the only one who is scared to death about people in our world who would be willing to present this evidence to a jury and argue to this jury that the evidence is valid and reliable?

I need a judge who is willing to step off the bench and get his hands dirty - like the judge in Florida.....

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Dissecting Cindy Anthony's Statement: What "Maggots in the Trunk" Could Tell Us

by Karen Chabert, RN

When Casey Anthony’s car was found, her father went to pick it up at the impound lot. George Anthony stated to the FBI that the smell was immediately identifiable as decomposition. He said he was praying that it would not be the body of his daughter Casey or granddaughter Caylee in the trunk. He should know that smell. He was a law enforcement officer and has smelled that unmistakable odor before. As a forensic nurse death investigator, I can tell you, the smell is one you never forget.

As pieces of information in the disappearance of toddler Caylee Anthony came forward, we heard her mother, Cindy Anthony, cry out to reporters, "There was a bag of pizza for what, twelve days in the back of the car, full of maggots. It stunk so bad. You know how hot it's been. That smell was terrible."

If you take her statement and dissect it (no pun intended), there are many small bits of information that may raise more questions:

· "There was a bag of pizza for . . . twelve days . . ."

If there had been a bag of pizza in the trunk for 12 days, wouldn’t the pizza have been dried up by then, making it no longer tasty to our forensic friends, the hungry maggots?

· ". . . full of maggots. It stunk so bad. . . ."

What is the life cycle of a maggot? From what I have read, the life cycle of a maggot is around 10 days, and by that time, the maggot is now a fly. Cindy didn’t say anything about flies emerging from the trunk. Given the timeline, I would imagine flies would have emerged from the trunk in a small swarm.

· "You know how hot it’s been."

This takes in to consideration the ambient temperature and the temperature in the trunk and the effect of the environment on decomposition. Hotter temperatures cause more rapid decomposition.

So, now that we have considered the maggot theory, I pose the question: What if there were maggots in the trunk?

OK, let’s say the maggots were still in their customary feeding frenzy. Did you know that while maggots are in a feeding frenzy, you can hear them? I’ve read that it sounds like Rice Krispies. Like the smell of decomposition, that would be one sound I would never forget! Talk about goose bumps!

Take it one step further and if we may now presume there were maggots in the trunk, there is a wealth of information that can be gleaned from analyzing those maggots.

Toxicology or drug screens can be performed to test for the presence of any drugs in the body of the maggots' host at the time of death. In my reading, there was a person who died of a cocaine overdose and maggots were feasting in a very speedy fashion. With that said, depressant ingestion by the deceased prior to death would induce the opposite in terms of speed of maggot activity, i.e., they would slow down considerably.

If Caylee was given chloroform as her mother’s chemical babysitter, there might just be a way to tell: Maggots!

Also, DNA analysis of the maggots can be done to determine just who were they feasting on. Yes, human DNA can be extracted from maggot guts to identify the body.

However, I haven’t heard anything about the maggots except from Cindy Anthony. Did she inadvertently let something slip?

Therefore, I submit the question: If there maggots in the trunk, were they collected as the important evidence they have the potential to be? And if so, were they analyzed?

Such evidence could be significant for the Anthony prosecution. If the stomach contents of maggots collected from Casey Anthony's trunk revealed the maggots were feeding on a host with Caylee's DNA . . . that would place the child's dead body in her mother's car.

You may never look at maggots in the same way again. Let's hope you don't have to see them . . . or smell them . . . or hear them. Yikes!

Known as a "Crime Fighting RN," Karen Chabert is a Forensic Nurse Death Investigator, a Legal Nurse Consultant, and a licensed Private Investigator. She is the director of the Legal / Forensic Department of a national consulting firm and President of Dynamic Nursing Associates, LLC. She has been a Forensic Nurse Liaison to Law Enforcement and has worked as a Death Investigator for an urban level one trauma center. Based in New Orleans, Louisiana, she has lectured around the United States and in Canada.

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DNA Matters, Except When it Doesn't?

by Laura James

"DNA ought to humble us. But it doesn't humble some people."

--Attorney Jed Stone

The Chicago Tribune ran a story by Steve Mills recently about some pending murder cases in Lake County, Illinois that ought to put the voters of that county on notice: your local department of justice has a moron on staff. If you have more integrity than your local prosecutor's office, you need to elect someone else.

In four rape - murder cases - involving female victims who were eight, nine, eleven, and sixty-eight - the DNA from the semen did not match the man charged with the rape and murder.

The prosecutor is pursuing these cases anyway, waving away the DNA evidence and the science upon which it is founded as a "red herring."

You read that right - these girls, this elderly woman were raped and some also murdered. Semen was recovered in each case. It did not match the suspect. The suspect was charged anyway, despite the fact that the prosecutor offers no logical explanation for the presence of semen that does not match. If there were evidence of two assailants, this might make sense. But there's not. And it doesn't.

Despite these DNA results, despite the fact that the source of DNA is semen, the prosecutor is getting convictions. How? He claims that the semen/DNA is from "contamination." That argument was not only permitted but was successful in the case of Juan Rivera, convicted of murdering Holly Staker again last month, even though DNA testing proved that he was not the source of semen found in the victim's body.

Where is the flipping judge, I'd like to know - how could he let this case get to a jury in the first place? How could he let the prosecutor make such specious arguments? From here he looks like yet another empty robe sucking up an unearned paycheck.

Some observers - like the Daily Kos, Mothers on a Mission to Stop Violence, Chicago Lawyer Magazine, Reason Magazine, and Northwestern University law faculty - are rolling their eyes at the ludicrous dismissal of the DNA evidence. But they don't have a vote, and jurors are buying it.

As one observer notes, it's "very rare" for a prosector to continue with a case when DNA excludes a suspect.

Unfortunately, I know it's not really that rare. A DNA exclusion did not prevent Michigan authorities from imprisoning Nathaniel Hatchett for rape. Twelve years is what it took before someone who knows something about DNA refused to accept the prosecutor's flimsy arguments. Shame, shame on the judges who permitted this man to go to prison for rape when the seminal DNA excluded him as the rapist!

And it happened in Toledo. I watched it happen on television in 2006 when Father Gerald Robinson was convicted of murder despite the fact that a male DNA profile obtained from the victim's clothing and bloody fingernails did not match him. The prosecutor's argument? The DNA is from "contamination." But there's some good news in that case: The Ohio Innocence Project just joined his defense team.

I am seeing more and more of these cases - representing more and more prosecutors who won't let a lil' ol' thing like DNA get in the way of a conviction. Alas, some juries are willing to accept this. Indeed these cases are becoming so common I wish someone would coin a term for it. "DNA non-match" cases isn't very catchy.

For many years, lawyers and journalists have lamented what is sometimes called the "CSI Effect" -- the expectation by jurors that cutting-edge scientific techniques will give them a definite answer in every case.

What can we call it when jurors ignore DNA that doesn't match the man on trial?

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Speculation of the Talking Heads—Is it or isn't it Caylee Anthony?

by Stacy Dittrich

Unless you’ve been living in a cave, the breaking news in the Caylee Anthony case has the talking heads literally squawking. I can say this because I am one, and though I can't speak for the rest of them, it's my opinion that the speculations, predictions, and eventual outcomes have turned tiresome.

In case you’re one of those in the cave, just last week an Orange County Florida utilities worker stopped by a wooded area to use the restroom. As he walked back into the woods he saw a garbage bag and proceeded to kick it, sending a small human skull tumbling out. Obviously horrified, the man called 911. Needless to say, the human remains were found less than a quarter of a mile from the home of George and Cindy Anthony. Subsequently, the investigation into missing Caylee simply exploded—along with the media.

Now, for the last seven days, we have been subjected to expert after expert commenting on what the police could have possibly found, how it will be processed, whether or not the remains are really those of little Caylee, will the grandparents be charged or should they be charged, was there duck tape around the mouth or just on the garbage bag? These are just a few. As I’ve said, I am just as guilty but have grown weary of my own commentating as well as others. The bottom line is that the Orange County Sheriff’s Department has done a phenomenal job of keeping the evidence and circumstances surrounding the remains under lock and key—they’re doing their job. We can all speculate until the end of time, but we won't know a thing until the sheriff’s department gives us the information. Sorry, I refuse to get my information from the likes of Leonard Padilla.

The only information we know for a fact, at this very moment, is that an innocent 2-year-old girl is missing and is most likely dead—something we won’t know for sure until there's a positive identification. We know that her mother is sitting in jail and charged with the murder. We know that she has acquired her own dream team consisting of those anxious to jump aboard the Casey Anthony Circus and Media Magnet’s Train. We know that her parents have their own attorney, and the sheriff’s department is still processing the scene.

We will all know soon enough if the remains found at the scene were Caylee Anthony’s. As for the condition of the remains, and other evidence found, these are facts that will most likely come out at the trial—and we’ll all know then. Needless to say, we should all take a deep breath, sit back, and let law enforcement do their jobs effectively.

I apologize for such a short post but I have to run, I am a scheduled guest on a radio show giving my expert law enforcement opinion. The topic?

Caylee Anthony . . . I think my train is leaving now.

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Factual Evidence in JonBenét Ramsey Case Forgotten

by Stacy Dittrich

I have been commentating on the JonBenét Ramsey case over the past week on radio and television stations from coast to coast, and there seems to be quite a misunderstanding regarding the "new" evidence that was presented in the case. The misunderstanding? That the evidence is new or even reliable.

Perhaps this was Boulder District Attorney Mary Lacy's last-ditch effort to rid herself of the case once and for all. Since Lacy (pictured right) took office, it has been very apparent that this case was something she wanted no part of but conceded the parents needed to be looked at. Last week, Lacy issued a public letter exonerating John Ramsey of all suspicion in the murder investigation involving his daughter, JonBenét. Bad move, Mary.

The DA's logic when issuing this exoneration was that a newly developed form of DNA testing resulted in several skin cells on JonBenét's long johns matching a sample taken from her underwear at the time of the murder. Now, instead of having unknown DNA on one piece of the victim's clothing, the same DNA is on two.

Apparently, Lacy thought this was enough to disregard every other piece of evidence in the case. Imagine spilling out a 500-piece jigsaw puzzle on a table in front of you. Find two red pieces and match them together. Throw out the other 498 pieces and tell yourself, "I don't need to finish this, I know what it is, it's a picture of an apple!" When, in fact, the picture was a large, red, barn with horses out front. Mary Lacy is clearly not proficient in puzzle solving.

First, we must question how reliable the DNA testing that was recently performed is. It was done through a private lab and is fairly new. The FBI DNA database, CODIS, is compiled of DNA from local, state, and federal labs. As Atlanta District Attorney Eleanor Dixon pointed out, it is unknown if this could even be admissible in court.

Next, we have the initial DNA sample taken from the underwear at the time of JonBenét's murder. It was described by the Boulder DA's office as a significant blood sample. Not so, says forensic expert Dr. Henry Lee. The amount of the sample was so minute on the brand new underwear JonBenét was wearing, that it could have possibly come from the manufacturer itself. Did you take DNA samples from everyone at the manufacturing company, Mary?

The following is where I take the biggest issue. As we all know, the initial investigation into the murder was comparable to a street carnival. No sense of order or evidence preservation commenced in this "panic." Once the body of JonBenét was located by her father (pictured right), the body was handed off and touched by approximately three or four people before it was secured and evidence preserved. John and Patsy had two couples and their minister in the home by the time police arrived.

I'm curious. Did each and every one of these people submit DNA samples? Patsy admittedly pulled up JonBenét 's long johns prior to the arrival of law enforcement.

The DNA found in JonBenét's underwear only consisted of 9 DNA "markers." The FBI once used 13 to make comparisons. According to DNA expert Brent Turvy, 9 markers is enough nowadays. But comparing this small amount of markers to the new "spot DNA" is really pushing it.

As Mr. Turvy stated, "DNA alone is not going to tell you who committed the crime in a case like this." Are you listening, Mary Lacy? Has the District Attorney ever heard the term "totality of the evidence?"

Let's take a look at that evidence, shall we? I'll put it together in a simple timeline:

December 25, 1996 10:00 p.m. - John Ramsey is the last person in the family to see JonBenét alive. She was "on her bed."

December 26, 1996 05:52 a.m. - Patsy Ramsey wakes up, walks downstairs and finds a ransom note claiming to have kidnapped her daughter. The note claims she is being watched and not to call the police or JonBenét would be killed. Without hesitation, Patsy calls the police.

06:10 a.m. - The first officers from the Boulder Police Department arrive on scene. One of the first priorities in a missing child investigation is to search the house. They do not search the house at this point. Instead, they wait on a promised 10:00AM phone call from the kidnappers as stated in the ridiculous ransom note. They do, however, check the exterior of the residence and find it is completely locked, no signs of forced entry, and there are no footprints in the thin layer of snow and frost that covers the Ramsey lawn. An incredible feat for any experienced criminal to pull off.

01:00 p.m. - Officers in the home inform John Ramsey they are going to get a search warrant, and request that he check the inside of the home for JonBenét, and to see if any of JonBenéts clothing, toys, or items are missing. What does John do? He immediately heads to the basement, followed by his friends Fleet White and John Fernie.

(Apparently, JonBenét's bedroom slipped his mind. It also must have slipped the officers' minds to escort him to every room since it was becoming increasingly clear he or someone present was a "person of interest.")

01:03 p.m. - Fleet White comes screaming up the stairs for someone to call an ambulance while he goes to the back office to get on the phone (???). Female detective Linda Arndt ran to the basement door and sees John Ramsey running up the stairs holding the body of JonBenét. (No mention of what John Fernie was doing.)

John had found JonBenét in an obscure room off the basement underneath two blankets. In a monstrous house with a gazillion rooms in it I'd say that's damn good luck, John! (Now there's a guy that should play the lottery.)

Oh, did I mention he pulled off the tape that was covering her mouth? (evidence contamination #3,456) The autopsy report showed that JonBenét's pelvic area was most likely wiped off with a wash cloth as well. Did he do that too? (evidence contamination #3,457)

01:03 p.m. - John Ramsey lays JonBenét on the floor where she is moved by Det. Arndt and Patsy pulls up her long johns (contaminatecontaminatecontaminate).

Det. Arndt notes green garland wrapped in JonBenéts hair is most likely from the garland decoration wrapped around the staircase where the note was found. Funny, Patsy must have missed the shambled decorations on her way down to make pancakes—or write a ransom note.

Ah, the ransom note. Another key factor in the investigation. Granted, I'm not a profiler, but I've talked to enough barbaric child molesters to know that they wouldn't know what the word "attache'" means—let alone how to spell it.

I find it "off the beaten" path that a highly organized group of kidnappers seeking money would resort to low-grade child rape and murder. Or, on the flip side, a low-grade child rapist who has the "kahunas" to perform the rape and murder inside the home taking a high and probable risk of getting caught.

Most would be "out of their element" and transport the body to an outside location where they wouldn't be bothered. Most of whom wouldn't bother locking doors on their way out. Which leads me to my most prized theory:

JonBenét's body was hidden inside an obscure room underneath blankets where a "suspect" would assume she wouldn't be found. But, his plan fell through. Assuming law enforcement would be out of the home searching for the victim, would allow him plenty of time to grab his "stash" and go dump it somewhere. But when officers indicated they would search the house, the panicked "suspect" ran to his "stash" first. A likely scenario? Maybe.

The time of death is also a questioning factor. The autopsy showed rigor mortis in lower extremities and joints only, an effect that occurs five to eight hours after death. This would put JonBenét's death around the early morning hours.

Did Patsy Ramsey walk in on something? Giving all the benefit of the doubt, I contacted my most favorite and respected coroner's assistant. Since the body was in the basement, the cooler temperatures easily could have delayed the process. Still, it's another question.

The end result is that there are entirely too many unanswered questions in this case to exonerate anybody, especially John Ramsey. Whether his own hand was a factor or someone else's, I truly believe he has knowledge of what happened to his daughter.

If my child were brutally murdered, I couldn't comprehend flipping through the yellow pages four days later in search of a defense attorney. Actions and emotions are some of the largest factors of evidence in any investigation; something Mary Lacy clearly missed.

Oh, and the fact that the autopsy showed JonBenét had previous sexual trauma PRIOR to the night of her death is a clue. To exonerate a suspect in which the majority of evidence points to him is premature at best, and completely irresponsible at worst. Yes, there is always the possibility of an "intruder." But at this point, all of the options should have stayed open.

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