Prosecutor- DNA evidence expands possibilities, problems

BODIES OF EVIDENCE

WHAT IS DNA?

DNA, or deoxyribonucleic acid, is the genetic material found in the body's nucleic cells -- those with a nucleus -- such white blood cells, semen, bone, skin and hair. Only identical twins have the same distinctive DNA markers.

By Mike Wells ~ Southeast Missourian

When someone commits a violent crime, such as assault, rape or murder, it is nearly impossible to do so without leaving at least a small trace of evidence behind.

Genetic material -- in blood, saliva, even fingernails -- found at a crime scene drastically reduces the chances of the perpetrator getting away with a crime because in every cell left behind there exists a chain of evidence that identifies the individual.

Because DNA is now so widely used in criminal cases, an enormous backlog of testing remains to be done. The Bush administration wants to invest $1 billion in the problem. It is also asking states to change their laws to help fill up the national DNA database of criminal offenders.

But criminals are starting to be more careful, and the juries are getting harder to impress, said Cape Girardeau County Prosecuting Attorney Morley Swingle.

The recent collection of DNA samples from two suspects in the unsolved 1982 murders of Margie Call and Mildred Wallace has brought DNA to the forefront of local news over the last two weeks.

But this was not the first time DNA evidence has been used in attempting to solve a crime in Cape Girardeau County. Local prosecutors have used DNA evidence for the past 11 years, though not initially with success.

'High-tech show'

While Swingle is glad today's jurists are more educated about DNA and are more willing to accept it as evidence, he said television has skewed some people's perspectives.

"Shows like 'CSI' have hurt law enforcement in that the jury now expects us to have a high-tech show of evidence for them," Swingle said. "When we only have testimony, they go, 'Well, that's not enough evidence,' and want to acquit."

As the public grows more savvy to DNA, criminals are catching on as well, making it tougher to catch them, Swingle said.

"The rapists are getting smarter too," he said. "There's no doubt in my mind that more rapists are using condoms. In fact, more than half of the rape cases I've had in the last two years the perpetrator wore a condom -- and you know it wasn't because the rapist was concerned about the well-being of the victim."

The office lost its first DNA-based case in a 1992 burglary trial, but not because the evidence was faulty. Prosecutors said the jury just didn't believe the victim.

But Swingle says times have changed.

"Nowadays, if that case were tried again, I think it'd be a much different result."

Since then, the office's track record with DNA has dramatically improved. In 1996, a suspect's DNA extracted from five cigarette butts in a victim's home, combined with other evidence, resulted in the first-degree murder conviction of Robert K. Lizenbee.

He stabbed Gary Sams to death to hide their sexual relationship, but he left behind traces of his DNA on cigarettes and a bloody fingerprint on a beer can. The comparisons of the DNA samples drawn from Lizenbee and the crime scene were explained in detail to the jury using posterboard charts.

"This was a circumstantial evidence case where the DNA combined with the other evidence helped make the case," Swingle said.

The office's most recent DNA conviction came in November, when Aaron M. Finnegan pleaded guilty to trespassing after being presented with DNA evidence police found on the bloody broken window of a neighbor's home, Swingle said.

The original charge was burglary. The lab report showed DNA matching odds of "one in 1 quadrillion" -- irrefutable proof that the blood found at the scene was Finnegan's, Swingle said.

Who's the daddy?

For the last six years, the prosecutor's office has also used DNA in paternity cases, now averaging about six cases a month. The men contesting paternity cases stop arguing when they see a lab report showing a probability of 99.99 percent they fathered a child, Swingle said.

The cost of the tests, conducted at a private lab in Columbia, Mo., is included in the court costs of the litigants.

One of the biggest dilemmas facing the criminal justice system is a massive backlog of unanalyzed DNA samples and forensic evidence from crime scenes. Police labs can't keep pace.

The National Institute of Justice estimates there are 350,000 rape and homicide cases in the backlog, while an additional 200,000 to 300,000 samples taken from convicts remain untested. In addition, there are between 500,000 and 1 million convicted-offender samples not yet collected, even though required by law.

The SEMO Regional Crime Lab in Cape Girardeau has about 50 DNA cases waiting to be tested, said director Dr. Robert Briner. But he expects that backlog to shrink relatively soon after the lab moves into its new, larger facility this summer.

He said there is too much room for error or contamination at the present lab's confined quarters.

That's why the Call and Wallace DNA evidence is being sent to the Missouri State Highway Patrol's Criminal Laboratory Division in Jefferson City, Briner said.

The patrol's lab performs about 200 DNA tests a year, said Cary Maloney, a supervisor in the lab's DNA section.

"We've got different sections of the lab in differing stages of backlog," he said. "It ebbs and flows."

He attributed this backlog to loss of staff to competing labs and the time needed to train replacements.

The turnaround time on lab results depends on several factors, Maloney said. Older cases like the Call and Wallace murders require more specialized DNA extraction because they predate today's standardized methods of preserving DNA evidence.

Government plan

To curb the nation's backlog, the Bush administration wants to provide $1 billion for DNA testing over the next five years. The plan, announced March 11 by Attorney General John Ashcroft, would also commit federal dollars for the first time to the DNA testing of felons who claim to be innocent and would expand the kinds of crimes included in a national DNA database. The increase must be voted on by Congress.

The plan would also allow states to submit to a national database DNA collected from people arrested and not just convicted of certain crimes. Currently 23 states require all convicted felons to provide DNA samples to the database.

Those states typically have much higher "hit rates" -- matches of DNA evidence to profiles of convicted offenders in a database -- than do states like Missouri, where only persons convicted of violent offenses, such as rape, assault and murder, and felony sex crimes are required to submit DNA samples. The Bush administration is asking all states to test all felony offenders, Ashcroft said.

The FBI's DNA database has more than 1.2 million convicted offender profiles and 44,140 forensic profiles found at crime scenes. As of November, the database has generated more than 6,000 hits, assisting in more than 6,400 investigations. In Missouri, the national database has assisted in 162 investigations.

mwells@semissourian.com

335-6611, extension 160 1866

Gregor Mendel, an Austrian monk, experimented with garden peas. He observed predictable patterns in the inherited characteristics of the peas.1953

The structure of DNA testing was discovered by Maurice Wilkins, Rosalind Franklin, Francis H.C. Crick, and James D. Watson. Watson and Crick made a model of the DNA molecule. They proved genes determine heredity.1957

DNA was produced in a test tube by Arthur Kornberg.1972

The first recombinant DNA molecule was produced by Paul Berg.1984

Sir Alec Jeffreys developed the first DNA profiling test.1986

In the first use of DNA to solve a crime, Jeffreys used DNA profiling to identify Colin Pitchfork as the murderer of two young girls in the English Midlands. Significantly, in the course of the investigation, DNA exonerated a suspect.1987

DNA profiling was introduced for the first time in a U.S. criminal court. Tommy Lee Andrews was convicted of a series of sexual assaults in Orlando, Fla.1989

David Vazquez of Arlington, Va., becomes the first American exonerated by DNA evidence after tests link another man to the murder for which Vazquez was convicted.1992

Cape Girardeau County had its first criminal case with DNA evidence. Though the jury believed in the DNA evidence in the burglary, its members found the victim lacking in credibility. The defendant -- already in prison for other burglary convictions -- represented himself and was acquitted.1995

The O.J. Simpson case brought fame to the use of DNA testing in forensic cases.1996

In Tennessee v. Ware, mitochondrial DNA typing was admitted for the first time in a U.S. court.

Robert K. Lizenbee of Cape Girardeau was convicted of first-degree murder in the stabbing death of Gary Sams. DNA evidence found on cigarette butts placed Lizenbee in Sams' home, along with a matching bloody fingerprint.1998

An FBI DNA database enabling interstate cooperation in linking crimes was put into practice.

The U.S. Senate began its investigation into the Clinton/Lewinsky case. Much of the evidence was based on DNA testing.