Judicature Genes and Justice
The Growing Impact of the New Genetics on the Courts
November-December 1999 Vol 83(3)
DNA's Search for Truth
book review by Clay Strange
And the Blood Cried Out: A Prosecutor's Spellbinding Account of the Power of DNA, by Harlan Levy. Basic Books. 1996. 224 pages. $24.
And The Blood Cried Out is a readable account of the development of DNA typing as the forensic tool of choice in the prosecution of violent crimes. It could easily serve as a textbook for lawyers and judges seeking a working understanding of DNA in the courtroom.
The title comes from the Bible story of God's recognition that Cain had slain Abel, saying, "Hark, your brother's blood cries out to me from the ground." Such is a fitting connection to blood's (DNA) role in identifying modern murderers.
Harlan Levy, a former assistant district attorney in Manhattan, presents forensic DNA analysis through the prism of its usefulness in achieving justice by properly convicting guilty murderers and rapists who might otherwise escape prosecution. His considerable prosecutorial experience and knowledge of DNA enable him to tell the story in an interesting and non-scientifically intimidating manner. The book is filled with many satisfying passages about the search for the truth and pursuit of justice for the victims of heinous crimes.
Levy's explanation of why he was attracted to DNA as a specialty in prosecution is familiar. Very early on he saw its tremendous value in "promote [ing] a more just society, both by making punishment of the guilty more likely and by assuring exoneration of the innocent." He also came to realize, however, that although DNA was unparalleled in its determination of the truth, the truth wasn't necessarily a product the criminal courts were interested in. He became disillusioned with most judges' traditional view of trial "as a process, pursuant to the rules of evidence, to determine whether guilt has been proven beyond a reasonable doubt." This wish to preserve the process in many ways led to the famous DNA admissibility wars of the late 1980s and early 1990s.
The book's explanation of the basic biological concepts and the technologies employed to determine a genotype is concise, understandable, and not overly technical. Levy wisely chooses to not try to do too much teaching; rather, he succeeds by simply creating incentive for the reader to know more of the scientific process.
Examples of DNA use
The book begins with Levy's own introduction to DNA in the case known as the "East Side Slasher," which occurred in Manhattan. Levy prosecuted the pivotal DNA aspects of this case, the result of which was the conviction of a serial rapist turned murderer. There is a fascinating description of the techniques employed by the police in solving the crime and of the lawyers in presenting the evidence.
Levy gives a nice, though somewhat brief, description of the first case in which DNA evidence was introduced. More fully described in Joseph Wambaugh's The Blooding, the case involved the serial murder of two English schoolgirls. Though of little importance to American criminal law, per se, the case remains one of the best examples of the promise of DNA in the promotion of justice for several reasons: 1) the DNA solution employed was not developed for forensic purposes [rather general human identification], 2) the analysis was performed by the father of DNA typing, Sir Alec Jeffreys, 3) the DNA result exonerated the first man arrested for the crime, 4) the investigation demonstrated the need for strict evidence controls [the actual perpetrator had a friend give a blood sample for him], 5) the solution was made possible by a somewhat coerced "voluntary" blooding [blood sample drawing] of 3,000 or so local men, and 6) the true perpetrator's name is one of first rank in the annals of crime—Colin Pitchfork.
One of the book's best stories concerns the case of Joseph Castro, whose name continues to both haunt and inspire forensic DNA analysis. Castro was charged in the Bronx in 1987 with the stabbing death of a young woman and her two-year-old daughter. The principal evidence was the probable blood of the victim on the watchband of Joseph Castro. Lifecodes, the first DNA laboratory in the U.S. to do RFLP testing, did DNA analysis and concluded the frequency of Castro's DNA type to be one in 100 million.
What followed was to be the only real derailment of an otherwise generally flawless progress toward widespread acceptance of and reliance on the reliability of DNA typing. Dr. Richard Roberts, an associate of James Watson, the Noble prize-winning co-discoverer of the double-helix structure of the DNA molecule, testified for the state. The defense countered with Dr. Eric Lander, an MIT scientist, among others, challenging the match criteria used by Lifecodes as well as other laboratory procedures.
After a lengthy, heated battle the trial court excluded the DNA evidence (and Castro pleaded guilty, receiving a lesser sentence than if the DNA had been admitted). Levy's analysis of the Castro case is exactly correct: what had been widely accepted in the press and hailed as a major advance was now viewed skeptically, even as unreliable by one New York Times reporter. The fact that Castro was based "on technical aspects of a particular case and not the fundamental scientific validity of DNA technology" was obscured.
Levy chronicles the FBI's cautious entrance into the field of DNA analysis in 1989 and emphasizes the work of Bruce Budowle in bringing stringent scientific standards to the emerging field. It was that lack of standards and laboratory accountability that had caused much of the concern in the scientific community. A series of cases that followed turned the tide and DNA began to become widely accepted once again.
The most personal account in the book is also one of the most famous DNA cases: The Central Park Jogger Trial. The young woman was so viciously assaulted she was unable to identify the "wilding" attackers, but fortunately several of them confessed. One, Yasef Salaan, had given a self-serving "confession" and pleaded not guilty, but testified at his trial. His confession and testimony helped convict the other two defendants and his admission on cross-examination of possessing a pipe that night (the weapon used in the assault) helped convict him as well. The DNA evidence sample from the sexual assault examination kit had matched none of the defendants. To its credit, the Manhattan DA chose not to try to discredit the DNA result, but rather explained that at least one rapist was never identified and that the DNA profile yielded was most likely his.
DNA was to suffer one final setback. In 1992 the National Academy of Sciences National Research Council issued a report strongly endorsing DNA technology but which also created considerable confusion in the area of match probability. The report attempted a compromise known as the "ceiling principle," which sought to resolve perceived statistical difficulties within certain population subgroups. The proposed solution created a firestorm in the forensic DNA community. The FBI and most population geneticists attacked the concept as pure politics and bad science. The upshot was a second NRC report that discarded the "ceiling principle," re-instituted the statistical method previously used, albeit somewhat modified, and much more fully endorsed PCR as a valid forensic DNA typing method. The groundwork for such a favorable report had been set in 1994 in an article in Nature, co-authored by Bruce Budowle and Eric Lander. As former combatants, their joining in an article proclaiming the end of the DNA wars became self-fulfilling.
DNA's value in exonerating incorrectly convicted defendants is not ignored in the book. Levy makes the important point that one of the values of DNA typing is that if the evidence were kept reasonably properly it may be tested accurately years later. Additionally, as most of us that have handled a post-conviction case can attest, no other evidence has the accuracy sufficient to overturn a jury verdict in the way DNA frequently has.
Levy's description of the O.J. Simpson case is wisely limited to an analysis of what DNA evidence was available, where it was found, what it was used to prove, how it was presented, and how it was attacked. He very capably develops the twin defenses employed by the defense team: the planting of evidence by dishonest cops and laboratory contamination at the LAPD lab (through which all the evidence passed).
There had been grave concern in many parts of the forensic DNA community that a "not guilty" verdict in Simpson would damage DNA credibility in the manner of Castro. In fact, the actual analysis and testimony given by Robin Cotton of Cellmark Diagnostics and Gary Simms of California DOJ was outstanding. Indeed, the defense did not attack the integrity of DNA typing itself, but rather successfully created doubt by raising questions of police misconduct and poor evidence handling. Moreover, one of Levy's final observations about the trial is shared by many prosecutors: there was too much DNA evidence available, which only added to the confusion created so capably by the defense.
Harlan Levy has given us a memorable description of the progress of DNA's remarkable contribution to criminal justice. I recommend it to any attorney or judge who might one day try a crime of violence.
Clay Strange is an assistant district attorney in Travis County, Texas.
|The online presentation of this publication is a special feature of the Human Genome Project Information Web site.|