St. Cloud Times from Saint Cloud, Minnesota on July 3, 1994 · Page 37
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St. Cloud Times from Saint Cloud, Minnesota · Page 37

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Sunday, July 3, 1994 Nation St Cloud Times 7D Murder case rests on DNA reading Two scientists interpret .. same piece of evidence in opposite ways; defendant appeals GANNETT NEWS SERVICE Science says Stuart Heaton stabbed Krystal Naab 81 times. It also says he didn't An evidence envelope at the Jefferson County Courthouse in Mt Vernon, Dl., holds pictures of a DNA test comparing Heaton's genetic profile with evidence from the crime scene. They show a series of streaks and dots. One scientist said the dots match. Another said they don't The jury that sentenced Heaton, 27, to life without parole believed the first "You just look at these pictures and say, 'Oh my God,' " said S. Michelle Mali-nowski, a Chicago attorney who believes Heaton is innocent and is handling his appeal free. "They don't match." Heaton's case fhes in the face of those who claim DNA evidence is the foolproof "genetic fingerprint" ensuring justice is always done. "The public should be concerned," said Barry Scheck of the Cardozo School of Law in New York. Scheck is an expert in DNA and the law. He also is a consultant for O.J. Simpson's defense against murder charges. The case shows that whether DNA works depends on which scientist is on your side. Robert Allen was running paternity tests for the Red Cross in St Louis when he helped convict Heaton in 1992. Allen says the dot that matches Heaton's may be hard to see, "but I can see it" Another scientist, Dan Krane, a molecular biologist at Wright State University in Dayton, Ohio, cant see it. What he does see are other dots he says point toward Heaton's innocence. "Rob said there were bands present I couldn't see," Krane said. "Not only that, but I saw bands that were clearly there that were ignored in the case." DNA: In the eye of the beholder The streaks and blotches in this photo show a comparison of Stuart Heatonls DNA with DNA found in semen at the crime scene and from a vaginal swab from the victim. Heaton was convicted of murdering the 16-year old victim. IIs i i V i ii mm it Dr. Robert Allen, the expert witness for Heaton's prosecution, says he sees a faint band in the evidence that matches Heaton's. Dr. Dan Krane, who reviewed the evidence after Heaton's conviction, says the bands do not match and that Heaton may not have committed the crime. The enlarged photo shows a dark blotch, or band, of Heaton's DNA. If Heaton committed the crime, that same band would appear in evidence collected from the scene. 2 Heaton's blood Vaginal swab from the crime scene Semen from the crime scene Source: Illinois court records GANNETT NEWS SERVICE What makes this dispute even more remarkable is that Allen and Krane are friends who have co-written articles on DNA. To help Heaton's appeal and waiving any fee, Krane studied the tests that convicted Heaton. Initially he hesitated to speak publicly, but questions of Heaton's innocence kept surfacing. Allen stands by his testimony. Krane tries to explain his friend's analysis: "The prosecution encouraged him to make as convincing a case as he could. ... It would have been just as possible to interpret the DNA in a way that would have exonerated Stuart Heaton." Allen denies he was pressured. People who believe that DNA - or any scientific evidence - is infallible are wrong, Krane said. "If you would have given that set of test results to 100 molecular biologists, you would get at least 10 different mterpretations." Stuart Heaton got one chance, not 100. On July 23, 1991, he slipped on work clothes and drove two miles from his home to the lumber yard where he worked in Vandalia, Dl., about 75 miles east of St Louis, where he spent the day doing carpenter's errands. By 8:15 that night, he had kicked off his sneakers and was watching TV with his wife, Karen, when he heard a knock. State troopers wanted to ask him questions. They didn't wait for him to get his shoes. "They just put the handcuffs on me," Heaton says, sitting in a holding area at Menard Correctional Institution. Krystal Naab, 16 and pregnant, lived in a mobile home with her mother and brother in Ramsey, a dozen miles north of Vandalia. Heaton owned a white truck. Witnesses say they saw a white truck at Naab's trailer the day she was murdered. They could not, however, agree on any details about the truck. Without DNA evidence, the truck was all that linked Heaton to the scene. Ed Blake, head of Forensic Science Associates in Richmond, Calif., said Allen's DNA analysis may be no more reliable than witnesses who saw a truck. "A lot of people are now doing forensic work who don't know anything about forensic science," he said. "There have been a lot of questions raised about Allen's work. It's the perfect example of what Fm talking about He doesn't know a damn thing about forensic science. He hung a shingle out and said, 'Send me your cases.' " Allen now directs the Laboratory for Human Identification at the Chapman Institute of Medical Genetics in Tulsa, Okla. His focus still is paternity cases, but he also took about 10 forensic cases last year. That scientists disagree about DNA readings should surprise no one, he says. "There's subjectivity in every lab test I'm aware of. Experts differ on whether they see the bands. That's a subjective call the judge or jury has to make." To some in the forensic profession, that is irresponsible. "What we do and how we do it is prob ably going to be incomprehensible to a jury," said Doug Lucas, retired director of the Center of Forensic Sciences in Toronto. "Itfs our responsibility that it's right and that we don't overemphasize its strengths." Don Sheafor prosecuted Heaton, his first and only murder case. "Heaton is a vicious killer," says Sheafor, in private practice after losing a race for state's attorney shortly after Heaton's conviction. "Those (DNA) marks were faint, but I could see them. And the jury could see them." The prosecution's DNA evidence: a small amount of semen combed from Naab's pubic hair The evidence that led prosecutors to conclude she had been raped: she was face down, her T-shirt tucked into the back of her underwear. Investigators told Sheafor blood flow patterns showed Naab had been lying on her back. The detectives think the murderer tried to cover up evidence of rape by turning her over and tucking in her shirt They were not bothered that no semen was found in her vagina. "All this just fit so well when our guys went through it," Sheafor said. "They weren't surprised not to find semen because they didn't find a lot of things they thought they would." Investigators found blood, hair and fingerprints. None matched Heaton. "I have heard nothing that made me change my mind about this," Sheafor said. "What convinced me was he had cuts on both his hands, his fingers, his forehead and the back of his thigh." The state police report said only that Heaton had cuts on his right little finger and left forefinger. He says they were several days old, from carpentry. Heaton awaits word on an appeal in the 5th District Court of Illinois. He is hopeful But he also was hopeful before thetriaL "I wanted the test," he says. "I was thinking, This is what I need.' But what Dr. Allen testified to was a he. I blame everyone who put me here. The prosecutor, Dr. Allen. I believe he knows he's wrong." Other Cases Hinge On DNA Recent history of the criminal justice system is sprinkled with cases in which DNA genetic identification played a role in either freeing con- -victs falsely accused of violent crime, or imprisoning defendants who are later shown innocent. Some intriguing cases: Kirk Bloodsworth - Convicted in 1985 of raping and murdering a 9-year-old in a Baltimore suburb. Police drew a sketch from the description of witnesses, and a man said he recognized Bloodsworth from the picture. Bloodsworth adamantly claimed he was home at the time, but the jury convicted him and he was sentenced to die in Maryland's gas chamber. Appeals on other grounds kept him off death row after 1 987, and last summer prosecutors dismissed the case when DNA comparisons showed that genetic material in semen on the victim's underwear did not match DNA typing in Bloodsworth's blood. The state awarded Bloodsworth, now 33, $300,000 for the nine years he spent in prison. Glen Dale Woodall - Convicted in 1987 of kidnapping two women in broad daylight and raping them in Huntington, W.Va. He was sentenced to 335 years. DNA evidence showed Woodall could not have been the rapist. He was freed in May 1992. Woodall 's conviction later was shown to be based on fabricated evidence testified to by former West Virginia state trooper Fred Zain. To settle a wrongful imprisonment suit, the state paid Woodall $1 million. Joe Jones - Spent seven years in a maximum security Kansas prison after being convicted of kidnapping and rape. He was freed from his life sentence in July 1992 because of DNA evidence. Kerry Kotler - Convicted of rape and spent 1 1 years in a New York state prison before being freed in December 1992. Charges were dismissed after DNA cleared him. Gannett News Service Lawmakers considers regulating DNA Act would establish DIFFERENT DKA TESTS COULD AFFECT Ssr.a.PS0N CASE national standards GANNETT NEWS SERVICE Almost no one disputes the power of DNA analysis. And right now, no' one " regulates it Congress has been trying since 1991 to pass a DNA Identification Act for national standards on DNA lab testing and guidelines for presenting evidence. These attempts have stalled because the DNA proposal always ends up in a crime bill, and Congress hasn't agreed on a general crime bill for several years. Now House and Senate conferees once again are arguing crime legislation - deadlocked over restricting sale of assault weapons and considering race in death penalty sentencing. The DNA portion of the bill is generally agreed upon by both parties, but once again may wither on the vine. If the bill passes, it will give the FBI power to develop guidelines for DNA testing. But that worries critics of the FBI's DNA testing techniques. "They do easy tests," says Barry Scheck, a professor at the Cardozo School of Law in New York who is considered an expert on DNA and the law. The FBI doesn't allow outside agencies to test how well its forensic labs perform. It claims 100 percent accuracy on its own internal tests. "They test clean blood on a white I The O. J. Simpson murder case may hinge upon the difference between the two types of DNA testing now commonly in use. One is Restriction Fragment Length Polymorphism RFLP-dubbed "riflip" by police and lab scientists. It is more traditional, but requires larger amounts of blood or other body tissue gathered as evidence - if blood, a stain about the size of a dime. Prosecutors prefer "riflip" because it allows them, in statistical analysis, to describe a DNA match as coincidence in only one of millions of chances. The other common test is Polymerase Chain Reaction - PCR. It can be conducted with only a pinhead's worth of blood or other tissue and Is described by scientists as molecular "Xeroxing" because the sample DNA is replicated several million times in lab procedures. I The shortcoming of PCR is its inability to narrow chances of coincidental matching to less than one in about 100. Its other problem is its vulnerability to lab contamination - if you multiply an original sample mih lions of times, you may be multiplying an original piece of contaminant, too. In Simpson's pretrial hearing, it became clear that the prosecution wants significant samples of his blood and hair, and appears already to have performed PCR tests on samples of blood from the crime scene. The Los Angeles Police Department crime lab cannot do RFLP tests, and would have to farm it out. I Larry Mueller, a geneticist from the University of California-Irvine, says PCR is not the best approach for the Simpson prosecution. "That isn't even - by the forensic community's detw nition - a discriminating test," he said. "I don't know what kind of work the LAPD crime lab does." ; Gannett News Service DNA computer files There are 23 states that have passed laws to establish computer files containing the DNA genetic patterns of known offenders in crimes of violence or sex. About half of them already have transmitted this DNA material to an FBI masterfile, with the rest planning to do so. States with laws establishing computer tiles of criminal s una patterns From Page ID DNA penalty cases to the Supreme Court. "What happens is the DNA expert gets up and says this is mathematically conclusive - and people think if you are well-educated, you can't lie." But recent scandals in various regions have embarrassed prosecutors and police alike when it was proved in court that forensic evidence has been faked in autopsy rooms and state crime labs. Some believe this extends to DNA tests. "Fraud is a much bigger problem than people think," said Edward Imwinkel-ried of the University of California-Davis law school, a specialist in forensic evidence. "But it pales in comparison to the problem of simply flawed testimony. People think this is supposed to be like Quincy or Hawaii-Five-O. A lot of whart coming out is just junk." The wave of publicity that accompanied the early days of the Simpson case often portrayed DNA as unimpeachable proof in the minds of the public and in courtrooms alike. This is a fallacy, say many defense lawyers. "The only reason it is currently so dangerous is because there is this myth going around that DNA results cannot be fudged," said Farmer. "Prosecutors have created the myth that it is the most absolute of all sciences - that it is not subject to any kind of human judgment When you look at those charts and those graphs, a human person had to make those decisions that led to the markings, and they can fudge them. And so, of course, they do." Whether fraud or fumbling, results of questionable DNA tests can ruin lives. cloth, not something that represents what you'd get in a real crime sample," Scheck said. "That may be helpful if you're investigating a murder at a dinner party, but I'm not sure it's a good measure of proficiency." Besides, Scheck adds, if the FBI is watching the other crime labs, "who is watching the watchers?" John Hicks, who retired last week as assistant director in charge of the FBFs laboratory division, defends the agency's test record. The FBI does not estimate an error rate. "We think we get them all right," he said. Jonathan Gentry, 37, lives on death row in Walla Walla State Prison in Washington, convicted largely on DNA evidence of murdering a 12-year-old girl. The first DNA test produced no result. But prosecutors said a second-based on a smidgen of blood on his shoelace -placed him at the scene. His lawyer, Frederick Leatherman Jr., said the second test was contaminated. The type test done on Gentry's evidence has a lab control that is supposed to leave a blank genetic readout Instead, it showed signs of contamination in the lab. The jury ignored this; Leatherman has appealed to the state supreme court Stuart Heaton, 27, is spending life in Menard Correctional Center in Chester, Dl., without possibility of parole. He was convicted of stabbing a 16-year-old girl 81 times. DNA, again, was the prime evidence. An expert witness for the prosecution sees a match between Heaton's DNA profile and the DNA readout from evidence found at the scene. In subsequent examinations of the DNA evidence, other experts say it not only fails to prove Heaton's guilt, but actually points toward his innocence. Heaton, also, awaits an appeal decision. These kinds of cases should worry society, said Barry Scheck, a New York attorney considered a foremost expert on DNA and the law. Head of a special DNA task force for the National Association of Criminal Defense Lawyers, Scheck has used DNA evidence to help free six men convicted of rape and murder that courts later ruled they didn't commit "The public should be concerned," Scheck said. "You can get false results wiui uicac Ltouj. iia uiguiiuiig. Scheck also is worried about the growing number of labs attempting to do DNA testing. "Everyone is worried about the proliferation of DNA labs. Even when there were only a few labs, The bill would set aside $30 million over five years and make the FBI lead agency in shaping DNA's future as a crime solver. It would have FBI Director Louis Freeh set up an advisory policy board of experts to establish quality control and quality assurance standards for forensic DNA tests. The director then would send those recommendations to state crime labs. Standards would not be mandatory, but if a state wanted federal funding, its lab would have to adhere strictly to the standards, as the FBI promises to do. there were serious mistakes." If O. J. Simpson is brought to trial, the Los Angeles County district attorney likely will try to show his DNA codes match the genetic typing from blood or hair at the death scene. If that match occurs, the prosecutor will claim the odds of this occurring randomly are extremely rare. No matter how the experts view DNA These standards include twice-a-year "blind" proficiency tests for state lab examiners who do DNA testing. Ditto the FBL Freeh would have final say on who gets grants. Besides that, the FBI - which already has started setting up a national DNA database to genetically profile offenders convicted of crimes of sex and violence - would share information only with states that obeyed the standards. "What the FBI would be doing," said James Dempsey, assistant counsel for the House subcommittee on Constitutional Plights, "is setting voluntary Stan-testing, most agree some sort of national standard is needed - much like the regulations applied only in recent years to clinical labs performing medical tests. "If the clinical labs were run the way the DNA labs are run," said Peter Neuf eld, a New York defense attorney specializing in DNA cases, "half of us would be dead, and the other half would be suing." jT IdahoT ' j go KYH$.ff JL ""n y 1 n L Iowa it-itP. VfConn. ' ' '' f Utah Colo. J VA. LTjfn lCaIlt ( 1 Kan, Ma J-Kf. f" j-.TeXaS J-ivT5 It Hawaii C I f r A Alaska! V f SJ " Source: FBI GANNETT NEWS SERVICE dards to impose on certain labs. The rest of the enforcement mechanism would actually come through the adversarial process." He means in the courtroom, where prosecutors could be embarrassed. "Any state that doesn't want to take the federal money and carries on in its merry old way might run into trouble," he said. "If they got into court, and the defense lawyer says does your lab meet FBI standards, and the lab director says no, and the defense lawyer says why not, and the state lab guy says we chose not to take the federal money - the defense h, lawyer will only have to say the FBI has a leaueiMuy iuic in sicuiuaius auu experts, and the state lab will start look- ing a little bit outside the mainstream." "Any state crime lab director will want to say he meets or exceeds the FBI j standards. Ditto for the private labs. They're not bound under the bill, but their work may end up in the FBI data- base because they do work." 253-4434 1.2&3BR's plus den t Choose 1, IV, or 2 baths 2 Pools, spa & sauna Washerdryer, elevator Fitness center Tuck-under garages Guest Suites Coroorate arts. Fax, copier & computer Conference & Clubrooms Concierge service ffltL?GHfe The Ground Round Rib Basket Special Only $6.95 for a limited time Available a St Cloud, 2621 West Division 612252-7321 Central Minnesota Mental Health Center Is Pleased to Announce its Affiliation with Kathleen Cody, M.D. Child and Adolescent Psychiatry Beginning July 1 8, 1 994 Dr. Cody will provide Psychiatric Services to Children and their Families in Benton, Sherburne, Stearns and Wright Counties. Appointments are now being taken for the following days at these locations: no CENTRAL MINNESOTA (CmvVaV MENTAL HEALTH CENTER "Mh St Cloud CMMHC: Wednesday Appointments, Phone 252-5010 V'V Buffalo CMMHC: Monday Appointments, Phone 682-4400 J J tK wver UMMnu luesoay Appomnnenis, rnone w-ju 1321 N. 13 St. Sl Cloud. MN 252-5010 1

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