The John Tonge Centre, DNA evidence and miscarriages of justice - Part 5

The persuasive power of courtroom science impacts upon juries who tend to regard forensic evidence more highly than they regard witnesses because it seems more objective. Study after study shows that juries put a great deal of faith in the testimony of expert witnesses. A good expert witness can often swing a verdict one way or another. But what happens when the expert lies? What happens when the expert thinks his or her role is to support the case theory espoused by the side that employs him regardless of the results of the tests conducted? Forensic scientists work so closely with police and prosecutors that sometimes their objectivity can be clouded in that pursuit of justice.

Fred Zain was a US West Virginia State Police forensics expert who testified in hundreds of criminal cases. He appeared to know his subject so well that judges, prosecutors, and defence attorneys didn’t question his laboratory results. Juries convicted defendants based on Zain’s testimony even when other evidence conflicted with that testimony or no other incriminating evidence existed. Fred Zain became a forensics expert sought after by prosecutors who wanted to win convictions in difficult cases. He was promoted to Chief of Physical Evidence for the medical examiner in Bexar County, Texas. In that position Fred Zain did for Texas what he had done for West Virginia. He lied.

Zain’s downfall resulted from the 1987 jailing of Glen Woodall who was convicted for multiple felonies including two counts of sexual assault. Zain testified that, based upon his scientific analysis of semen recovered from the victims, “[T]he assailant's blood types ... were identical to Mr. Woodall's”. Woodall received 203 to 335 years imprisonment and the conviction was affirmed on appeal. Independent DNA testing done in a subsequent habeas corpus proceeding established that Woodall could not have been the perpetrator. His conviction was overturned in 1992 and Woodall was freed.

Woodall sued the State of West Virginia for false imprisonment and received US$1 million compensation. This ultimately led to an extraordinary investigation of the entire body of Zain's work ordered by the West Virginia Supreme Court.

The report concluded that the actual guilt of 134 people was substantively in doubt because the convictions were based on inculpatory reports and or testimony by Zain. Nine men have been freed because the remaining evidence offered against them was insufficient for conviction - the expert testimony of Fred Zain alone had put them in prison.

Fred Zain's actions didn’t take place in a vacuum. The conditions that gave rise to his abuses remain in place in other crime laboratories and courtrooms across the US.

In a 21-year career with the US Oklahoma City Police Department forensic chemist Joyce Gilchrist had an unbroken string of positive job evaluations and was Civilian Police Employee of the Year in 1985. The ability to sway juries and win convictions earned Gilchrist the nickname “Black Magic”. She received the nickname in response to her remarkable ability to see evidence other forensic experts could not see.

In the courtroom Gilchrist drew scientific conclusions that others would not approach and turned speculation into scientific fact. In doing so Gilchrist helped the Oklahoma County District Attorney’s office rack up conviction after conviction in addition to sending dozens of prisoners to death row. In 1994 she was promoted from forensic chemist to supervisor.

The reputation of Joyce Gilchrist was shattered in September 2001 when she was fired from the Oklahoma Police Department for laboratory mismanagement, flawed casework analysis and giving false or misleading testimony in criminal cases including some in which she helped send defendants to death row. The forensic scientist’s errors put capital punishment under the microscope in the US.

A preliminary FBI study of eight cases found that in at least five of them Gilchrist had made outright errors or overstepped “the acceptable limits of forensic science”. Gilchrist got convictions by matching hair samples with a certainty other forensic scientists found impossible to achieve. She was also accused of withholding evidence from the defence and failed to perform tests that could have cleared defendants.

Gilchrist’s testimony helped put Robert Lee Miller Jr in prison for 11 years for a murder he never committed. In 1998 Miller was released from death row based on the results of independent DNA tests. In Miller’s case the forensic chemist linked him to the rape and murder of two elderly women by comparing hairs under a microscope. She eliminated another suspect, Ronald Lott, by the same hair comparisons.

The subsequent DNA test of semen from the crime scene not only freed Miller from death row but pointed to Lott as the perpetrator. Lott was arrested on two counts of first-degree murder. In that case Gilchrist’s testimony implicated an innocent man and helped put him on death row and excluded Lott as a suspect until independent DNA testing linked him to the crime.

In another case Jeffrey Pierce was released after serving 15 years of a 65-year sentence for a 1986 rape conviction. Gilchrist’s junk science had placed him at the scene of the crime but independent DNA evidence proved he was not the rapist. In response to the miscarriage of justice that occurred in the Pierce case, Oklahoma Governor Frank Keating launched a review of every one of the thousands of cases Gilchrist touched between 1980 and 1993 starting with 12 in which death sentences were handed down. It was too late for another 11 cases that Gilchrist had testified in - the defendants had already been put to death.

Generally the courts have accepted the reliability of DNA testing when they have allowed DNA tests into evidence. However, DNA profiling is controversial in a number of areas; the accuracy and interpretation of the results, the cost of testing and the possible misuse of technique.

Some of those concerns were reinforced in a 500-page report issued in April 1997 by Michael Bromich, the Inspector-General for the US Justice Department, who criticised the work conducted by the FBI in their forensic laboratories. Bromich found errors in testimony and substandard analytical work had resulted from deficient practices employed by FBI laboratory technicians.

The bombing of the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995 is one of 18 high-profile cases mentioned in the 1997 report that revealed forensic bungles had occurred. The explosion killed 168 people and resulted with Timothy McVeigh being arrested, convicted and subsequently executed despite those forensic bungles.

The double-murder case against former US National Football League player O. J. Simpson was also on the list of 18 cases the FBI forensic laboratories mishandled.

The Justice Department investigation resulted from exposure by whistleblower, Frederick Whitehurst, who alleged FBI laboratory specialists and technicians fabricated or suppressed evidence, gave perjured evidence and obstructed justice in thousands of cases to favour the prosecution.

Investigators from the Inspector General's Office interviewed dozens of FBI agents during the course of their 18-month investigation and during that time they turned up evidence of a prevailing lab culture which one agent likened to a “fraternity”. It was a “shoot from the hip” culture favouring the prosecution rather than a culture of objective science or an honest search for the truth.

Michael Strutt, a Sydney criminal justice activist who specialises in forensic science, sees the inherent culture of scientists in forensic testing laboratories as one of the main stumbling blocks to the delivery of unbiased DNA testimony in Australian criminal trials. Strutt explained:

… These people turn into advocates for a particular side and it totally distorts the scientific picture because you get them not doing tests that might undermine what they are trying to say. Like in the case of Button where they didn’t test the sheets because they decided they were only going to do tests that were going to implicate him and not to try and exonerate him.

Mr Strutt was also critical of the way prosecutors employed the use of DNA evidence in Australian courtrooms saying:

We know from the Joy Thomas case (The Queensland Arnott’s extortion case) that the Crown was sitting on evidence that would have let her off. They wouldn't have done a thing if the defence had not had enough resources and determination to discover it themselves.

Australian criminologist, Professor Paul Wilson, argues that DNA evidence is equally effective for defence lawyers as it is for prosecutors. He said:

The one big plus for DNA, as far as the defence is concerned, has shown that miscarriages of justice are far more frequent than we used to think. As the US experience has shown, a lot of people have escaped the death penalty quite correctly as a result of DNA technology.

Since the US reintroduced capital punishment in 1976 there have been over 107 prisoners released from death row and exonerated after their convictions were quashed. Twelve of those prisoners were exonerated because DNA was a significant factor in establishing their innocence:

• Earl Washington, Virginia, sentenced to death in 1984 came within nine days of being strapped into the electric chair and put to death for the rape and murder of Rebecca Williams three years earlier. Washington was reprieved and served 16 years, 9 ½ months on death row before DNA established his innocence. He was released from prison in 2000 and granted an absolute pardon.
• Kirk Bloodsworth, Maryland, sentenced to death in 1984 served nine years before DNA established his innocence. Released from prison 1993.
• Rolando Cruz, Illinois, sentenced to death in 1985 served ten years before DNA established his innocence. Released from prison 1995.
• Alejandro Hernandez, Illinois, sentenced to death in 1985 served ten years before DNA established his innocence. Released from prison 1995.
• Verneal Jimerson, Illinois, sentenced to death in 1985 served 11 years before DNA established his innocence. Released from prison 1996.
• Dennis Williams, Illinois, sentenced to death in 1979 served 17 years before DNA established his innocence. Released from prison 1996.
• Robert Lee Miller, Jr. Oklahoma, sentenced to death in 1988 served ten years before DNA established his innocence. Released from prison 1998.
• Ronald Williamson, Oklahoma, sentenced to death in 1988 served 11 years before DNA established his innocence. Released from prison 1999.
• Ronald Jones, Illinois, sentenced to death in 1989 served ten years before DNA established his innocence. Released from prison 1999.
• Ray Krone, Arizona, sentenced to death in 1992 served ten years before DNA established his innocence. Released from prison 2002.
• Charles Fain, Idaho, sentenced to death in 1983 served 18 years before DNA established his innocence. Released from prison 2001.
• Frank Lee Smith, Florida, sentenced to death in 1986 served 14 years before DNA established his innocence. Smith died inside prison prior to his exoneration.

While the US justice system continues to address the fallibility of forensic science used as evidence in US courts men like Marc Renton, Wayne Butler and Stephen “Shorty” Jamieson are still waiting for Australian justice to investigate their cases. That long wait for justice is compounded by forensic testing facilities like Queensland’s John Tonge Centre that continue to use scientifically flawed DNA evidence and suspect interpretations of DNA test results to send more people to prison.