Wednesday, December 11, 2019

The iceberg's tip: CA man walks free bc of DNA-mixture SNAFU

It's perhaps a testament to the reduction in size of and competition among MSM outlets that nobody has yet covered the problems with DNA-mixture forensics raised by federal District Judge Janet Neff of Michigan's Western District* (discussed by Grits here and on the latest Reasonably Suspicious podcast). That must change; some full-time reporter(s) must step up. These issues deserve high-level coverage and national context that this humble, regional blog cannot provide.

Once you begin to pay attention, these cases are cropping up everywhere. In San Diego, we have the case of Flamencio Dominguez. In 2011, he was convicted of a 2008 murder based on DNA mixture evidence and sentenced to 50 years, reported the San Diego Union Tribune. Months before the trial, the crime lab realized the mathematics behind their old DNA-mixture analyses used an invalid baseline. They decided to abandon their old approach and switch to "probabilistic genotyping" instead.

(Similarly, in Texas in 2015, crime labs discovered every lab in the state was using erroneous math in DNA-mixture analyses in ways that risked falsely accusing innocent people, see coverage here and here. In Travis County alone, 11 cases were found where suspect matches changed to "inconclusive." Our crime labs, too, were advised to switch to probabilistic genotyping.)

When the baseline issue was corrected in Mr. Dominguez's case, the new algorithm went from accusing him to "inconclusive." But prosecutors did not tell Mr. Dominguez's counsel about the change. The defendant was convicted based on what now is admittedly erroneous DNA math, and his lawyer wasn't aware of the flawed DNA-mixture protocols until six years later.

After his lawyer found out about the inaccurate math, Dominguez prevailed in 2017 on a habeas corpus claim and was released from prison. But prosecutors decided to try him again, this time using a tool from a company called STR-Mix based on probabilistic genotyping. That was the forensic tool Judge Neff evaluated in Michigan. The bottom-line assessment in Judge Neff's opinion was that:
The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if [the defendant] is a contributor to the DNA on the gun than if he is not— is not really evidence at all. It is a combination of forensic DNA techniques, mathematical theory, statistical methods (including Monte Carlo-Markov Chain modeling, as in the Monte Carlo gambling venue), decisional theory, computer algorithms, interpretation, and subjective opinions that cannot in the circumstances of this case be said to be a reliable sum of its parts. Our system of justice requires more.
Courts in California were robbed of their chance to decide whether they agree. San Diego prosecutors essentially let Dominguez plea out to time served because the company STR-Mix would not allow the state courts to examine their source code without a slew of non-disclosure agreements the court deemed inappropriate, reported the Union-Tribune:
court records filed last month show that the company wanted Speredelozzi and his experts to sign a restrictive non-disclosure agreement and abide by other restrictions. on Oct. 23 [Judge Charles G.] Rogers declined to require the [defendant's] lawyer sign the agreement, and warned that if the company failed to comply, he might exclude the DNA evidence all together from the trial. On Nov. 7 a lawyer for the company wrote to Speredelozzi they would not provide the crucial source code for the software without the non-disclosure agreement.
So the company chose to let the case against an alleged murderer fall apart rather than let California courts review its source code. But Judge Neff in Michigan already had experts do just that! Is the company afraid other courts may reach similar conclusions and disallow or limit their product's use? The execs at STR-Mix must really be feeling the heat!

One also wonders if the good folks at the Houston Forensic Science Center, which late last month announced they would begin using the STR-Mix software, might now begin to consider that decision ill-timed? Certainly, after Judge Neff's decision, one would question using it for either mixtures involving more than three sources or three-source mixtures where the target makes up less than 20 percent of the sample. Lots of trace-DNA samples are submitted to crime labs that don't meet those criteria!

On the November episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed Judge Neff's opinion and its implications for crime labs interpreting DNA mixture evidence. I pulled out that segment as a stand-alone; you can listen to it here:

The news about Mr. Dominguez's case hadn't yet come out, so we didn't talk about that. But the segment discussed some of the recent history of ever-changing DNA-mixture math and explored the reasons underlying Judge Neff's decision.

IMO this is going to become a significant story with national and international implications (everybody relies on the same science) and lots of twists and turns over the next few years. We need some journalists with chops to jump on this coverage on the front end. Wrongful convictions have gone unchallenged simply because not one reporter in the whole country is covering this beat.

For more background on this controversy, see:
*Except Techdirt, which picked the item up from Grits.

1 comment:

Gunny Thompson said...

From Unfiltered Minds of Independent Thinkers of the 3rd Grade Dropout Section:

And Speaking of Racism In the Judicial System;

In Harris County, similar to other locations, with part of the problem of racism resting with prosecutors and judges seeking approval of their actions from their Puppet Masters whose actions often act with decisions that prejudge defendants and denies a fair and impartial trail.

Specifically comes to mind are cases that differentiate in rulings involving African-Americans and non-African-Americans.

During the John Holmes administration, in the case of State v Graham, Cause No. 335378, Gary Graham, 17, African-American, was indicted on June 9, 1981 by a Harris County Grand Jury of capital murder during which an alleged encounter on May 13, 1981 with victim, Bobby Lambert, ended in death and robbery of Lambert.

Graham was executed in the alleged indecent on June 21, 2000, during then-Governor Bush's unlawful presidential campaign, in the death and robbery of Bobby Lambert, an Anglo Saxon, whose death was allegedly caused by a .22 caliber was alleged to have been found in the possession of Graham, during his arrest. Graham's conviction was based on the flawed testimony of a single witness that was alleged to have picked Graham out of a lineup following an extremely suggestive identification procedure. Additionally, the police firearms examiner determined that Graham's weapon could not have fired the fatal bullet that killed Lambert.

During the Chuck Rosenthaul, then-district attorney's administration, in the case of State v. Haynes, Cause No. 7783872, Anthony Craig Haynes, 20, an African-American and military veteran, who now sits on death row, on May 25, 1998 was charged with capital murder in the shooting of Kent Kincaid, an Anglo Saxon, in civilian clothing, was unknown to Haynes was a Houston peace officer, who during a roadside encounter at night, in which he Kincaid, threaten Haynes by approaching and reaching for an unknown object. During the encounter, Haynes, feared for his life, shooting the suspect, who later died. After his arrest, Haynes was informed that the unknown person was a peace officer for the city of Houston. Haynes was prosecuted and received a death sentence to be administered by lethal injection. Jim Wallace, then-judge, awarded the punishment of death by lethal injection.

In the matter of State v Haynes, nether district attorney Chuck Rosenthaul nor Judge Jim Wallace were eligible for the public office they then held.

Alternatively, prior to the above cited matter, which is still ongoing during the Holmes administration, in State v Prewett, Case No. 474726, Steven Edward Prewett, 19, on June 26,1987, was indicted by a Harris County Grand Jury of Involuntary Manslaughter, in the shooting death of Melvin Kukendall, an African-American, certified peace officer, employed for nearly ten years by Texas Southern University, a state institution of higher learning, who was along time friend of this writer. Prewett was not charged with the murder of a peace officer, in fact, no reference was made to Kukendall's peace officer status, and he Prewett, received a reduced bail of $20.000.

Prewett, an Anglo Saxon, on June 7, 1987, was allowed to plead to a six-year term in TDC, on an agreed charge of Involuntary Manslaughter in the killing of peace officer Melvin Kukendall. The difference in the cases of Kuykendall and Kincaid were that Kuykendall offered no treat to Prewett. Both he and Prewett were in different vehicles, traveling on a major North Freeway with over 90 feet separating the two vehicles.

In violation of the 14th Amendment, Racism in the judicial system is alive and well.