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Legal Disaster

 

Please allow me to note that I began crafting this article before the end of August 2011. On October 20, 2011, I submitted a first draft of the article to a few of my associates. I did so to ensure the accuracy of various events as well as a means to encourage feedback. This article is in no way related to—a response to—or a commentary on—the tragic events that have become known as the PENN STATE/JERRY SANDUSKY SCANDAL.

With that established, perhaps we should begin by verifying two fundamental truths. First, let us all agree that there are documented cases of flawed criminal investigations and misguided prosecutions—often leading to WRONGFUL CONVICTIONS. Second, let us also agree that any circumstance involving harm to the children within our society is certain to cause a powerful response of revulsion and outrage. This article addresses the inevitable consequences when these two fundamental truths collide.

Please imagine a call coming into a 9-1-1 emergency dispatch unit. Shortly after the call, law enforcement resources are mobilized and they arrive at a home. Officers are confronted by a hysterical female and a withdrawn child. A finger is pointed at a male suspect. Perhaps this suspect is standing in front of the officers. Perhaps he is sound asleep in a nearby bedroom, unaware of the mayhem that looms before him. Perhaps the accused is not even present at the scene. After statements are collected from various individuals, the above-described scenario leads to the immediate incarceration of the accused. This scenario also leads to a medical examination—further traumatizing the child.

Despite the omission of specific allegations preceding this theoretical 9-1-1 dispatch call—let us now have a show of hands: How many readers of this article embrace the concept that the accused man will venture into his criminal trial as “Innocent until proven guilty”? Will he still be presumed innocent after the first minute or two of the prosecutor’s opening statements? Those of you with your hands eagerly elevated can put them down now. While you are at it, you can also stop kidding yourselves.

Please do not misinterpret my point here. If my career path has enlightened me at all, I have become painfully aware that instances of sex crimes targeting children are significantly more common than most people realize. Between 2003 and 2007, I examined over 100 criminal cases as a Forensic Biologist with the Indiana State Police Regional Laboratory in Evansville, Indiana.

Current estimates reveal that about 20% of the adult women in the U.S. claim that they were sexually abused during their childhood. About one half of that percentage applies to U.S. men—also claiming that they were sexually abused as children. Additional sources claim that—in reality—these estimated percentages could be much too conservative. Due to the enormous level of fear typically experienced by the victims of these crimes, many cases are never reported.

The general consensus seems to be that—with rare exceptions— accused sex offenders are ‘guilty as sin’. Keeping that in mind, most Americans still want to believe that the accused are provided with considerably fair opportunities to defend themselves against any accusations. In this article, I intend to illustrate the reasons why I believe that this admirable concept of fairness simply does not apply when a person is accused of inflicting harm upon the most precious members of our society—our kids.

The following summarizes some of my actual experiences—as a DNA expert for the defense—with three fairly recent examples of actual criminal cases:

Mr. A is a young Native American. He lived in a home with his sister, her husband, and their three young children. He often watched and cared for the two young girls and their younger brother. He lounged in a room with them, watching TV, playing video games, munching on snacks, and often falling asleep side by side with one or more of the children. For a substantial period of time, Mr. A cheerfully provided these child care services, and was NEVER accused of doing anything inappropriate.

One day, Mr. A arose from bed early, went through his morning routine, and departed for work. Not long after that, his life was turned upside down. One of the young girls experienced a painful urination. Understandably, the child called out to her mother. What happened after that has yet to be fully clarified. Mr. A’s sister became hysterical and surrendered to an irrational fear that her child’s painful urination could not possibly be a by-product of poor hygiene, a garden variety rash, a passing infection, or a poorly managed diet. Consumed with panic, the sister instead convinced herself that “something horrible must have happened”. Next was the ill-fated 9-1-1 call. After the police arrived and statements were collected from a few individuals, Mr. A was promptly located at his workplace and arrested. A medical examination was conducted upon the traumatized young girl.

Eventually, the FBI Crime Lab became involved. The reporting lab analyst found a DNA mixture profile, present on the shorts collected from Mr. A. The major DNA contributor, not surprisingly, was Mr. A. The minor DNA profile on the shorts may have been from the child in question-or perhaps from her sister. At this point, it is useful to establish that Mr. A and the members of his sister’s household were never approached for a possible cover photo on Good Housekeeping magazine. Young Mr. A, a kind, hard-working man, had a tendency to frequently wear his ‘favorite shorts’ while relaxing at home. Like countless other young men, ...Mr. A was untidy. He rarely bothered to place his shorts anywhere near a washing machine. He would change into and out of the garment at various times, discarding them into various, haphazardly-selected locations throughout the home. Occasionally, Mr. A's sister or his brother-in-law would unearth these preferred shorts from within a pile of various items, and include them with the next load of laundry. Otherwise, they might NEVER get washed!

The FBI lab analyst also reported a Prostate Specific Antigen (PSA) positive test on a sample collected from the child’s underpants. PSA is used in forensic labs as a presumptive test for semen. In an attempt to confirm that this was genuinely an indication of semen, the lab analyst collected additional material and scanned it microscopically for spermatozoa. Not a single sperm cell was found. The FBI analyst proceeded to the ‘holy grail’ of forensic science-DNA. No DNA—other than the expected DNA from the young girl—was detectable on her underpants. The defense attorney representing Mr. A contacted my forensic DNA consulting company—mostly to confirm the negative findings reported by the FBI Crime Lab.

The medical examination conducted on the child indicated no unusual symptoms. Nothing was found beyond the typical minor rashes and irritations that could have readily contributed to the painful urination in the first place. Such ailments are common among children of a similar age to the young girl in Mr. A’s household. Believe it or not, Mr. A sat in jail for nearly two years before being found NOT GUILTY on all counts. The jury deliberated for less than two hours to arrive at this unanimous conclusion. Mr. A was immediately released.

Let us now discuss the case of Mr. B. He is also a Native American. Mr. B was raising his young son and young daughter as a single parent.  When his sister lost her home, Mr. B graciously took her in as a house guest. Each evening, Mr. B and his son would unfold a temporary bed in the kitchen of his home, and retire there for the night. One evening, Mr. B arrived at his home in an intoxicated state. It is important to note that when Mr. B’s sister was a teenager, she had been sexually assaulted by an intoxicated man. Seeing Mr. B drunk caused his sister to become severely upset. Later that night, she somehow became convinced that Mr. B was ‘doing something’ underneath the bed covers with his young son. What transpired next was yet another ill-fated 9-1-1 call. Mr. B’s life was turned upside down. After the local police arrived and statements were collected from various individuals, he was promptly placed under arrest. The customary medical examination was conducted upon the young boy.

Similar to Mr. A’s case, the FBI Crime Lab became involved. In this case, the FBI analyst looked at no evidence items other than 4 cotton swabs that had been collected from the anal area from the young boy. The FBI lab report stated "….semen identified" on the anal swabs. What more would any jury need to hear? Game, Set, Match, ....Right? Mr. B was devastated. Upon meeting with his attorney, he emphatically insisted that he would NEVER harm his children and that the FBI report HAD to be incorrect. The attorney contacted my consulting company and asked me to scrutinize the FBI’s lab reports and supporting documents.

Upon examination of the FBI documents, I immediately noticed that the reporting analyst referred to an "FT Positive" test result on two of the four swabs. Indeed, this screening test was—once again—PSA. I eventually discovered the fact that this mysterious “FT” designation was shorthand for "FAINT". Please allow me to pause and emphasize the gravity of this revelation: The FBI Crime Lab—our FEDERAL AUTHORITY on forensic science—utilized a $1.05 PSA detection cartridge (a gadget resembling a common drug store pregnancy test strip), .....and note that the FBI’s test strip revealed a FAINTLY positive result. Defying logic, no effort was made by the FBI analyst to microscopically identify sperm cells on ANY of the anal swabs. Instead, they proceeded to test ONE of the swabs for DNA. This effort revealed NO DNA DATA that might have suggested the possible presence of Mr. B’s DNA.

I informed Mr. B’s defense attorney that the FBI Lab’s conclusions were entirely unjustified, and an enormous misrepresentation of the scientific facts. I backed up this opinion by emphatically recommending retesting on—not one—but all four swabs. The swabs were sent to Independent Forensics, Inc. (IFI), a superbly-qualified biological/DNA testing lab located in Lombard, Illinois. IFI was equipped with a more accurate, SPECIFIC screening test for semen (not PSA). IFI also possessed a sensitive, more thorough DNA testing strategy. The laboratory at IFI revealed virtually NO indication of semen and SUPPORTED the FBI Lab’s finding of NO DNA linking Mr. B to so much as a hint of a criminal act.

The screening test utilized by the FBI lab was a sensitive detection system for PSA—a protein that DOES occur abundantly in semen. However, the error associated with leaning heavily on the PSA test is that recent research has revealed the presence of PSA in body tissues and fluids other than semen.

To be clear, nothing is fundamentally wrong with using the 105-cent PSA test cartridges—especially when this method is employed strictly as a screening tool. PSA and similar diagnostic tools were meant to point the way to the ultimate goal of countless criminal case investigations—DNA.  A faint PSA positive test is anything but the de facto means of verifying an alleged incident of sexual assault. Managers overseeing accredited crime labs are compelled to promote the interpretation of such ‘preliminary data’ with extreme caution. Despite this glaring chasm in their scientific case, FBI Crime Lab management refused to back off from their profoundly speculative, "semen identified" conclusion.

Up until the week of the trial, Mr. B had been sitting in jail for over sixteen months. What’s worse, the man was facing 30 years in prison—if convicted. As the eleventh hour approached, Mr. B was offered a chance to be released, a reduction to merely ‘time served’. However, the man would have been required to accept a guilty plea. Mr. B refused to accept any agreement that would prevent him from continuing to raise his two children. For this reason, he rejected the offer.

I have occasionally received praise for my diligence as a parent. As much as I try not to contradict my admirers, I must confess that I have NEVER agreed to risk 30 years in Federal prison—in order to continue my role as a parent. In Federal Court, the FBI Crime Lab's enormous interpretive flaws were carved up—much like a Christmas turkey—in front of the jury. This process was facilitated by Richard Coughlin, Ph.D. (President/Chief Scientific Officer of Sequela, Falmouth, Maine), Karl Reich, Ph.D. (Chief Scientific Officer, IFI), and myself. After the jury deliberated for only 2 ½ hours, Mr. B was found not guilty on all counts and immediately released.

I will never forget the phone call from Mr. B’s attorney—shortly after the verdict was delivered. He handed the phone to Mr. B, who graciously thanked me for all that I had done to assist with his cause. I assured Mr. B of what an honor it was for me to have the opportunity to facilitate a justified outcome for such a courageous father. THE MAN HAD COMMITTED NO CRIME.

Side notes: Both Mr. A and Mr. B were accused by their own sisters. In each case, the accuser admitted that she had been sexually assaulted-years ago, as a child-by an adult. Mr. B's accuser recanted her original accusation. Mr. A's accuser did not.

And finally, ….Mr. C lived in a humble, single-wide mobile home with his wife, their one-year old son, and his wife’s three daughters from a previous marriage. The woman of the household frequently voiced her mandate that Mr. C was NOT to enter her home in an intoxicated state. One evening, Mr. C violated that rule. His arrival at home led to a few unpleasant exchanges between husband and wife. Eventually, Mr. C decided to retire to the master bedroom. He soon fell asleep next to his one-year old son. Quite some time after that, Mr. C realized that somebody was kicking his bed and demanding that he get up. To his surprise, it turned out to be a local police officer. You guessed correctly—the ill-fated 9-1-1 call had already been placed. Mr. C’s life was about to be turned upside down. He was promptly arrested, handcuffed, and shoved into the back of a squad car. Mr. C was mystified to see that one of his stepdaughters was being escorted to a facility for a medical examination.

The examining nurse at this facility collected numerous samples from the child. These included the following: a vaginal swab, a vaginal slide, an oral swab, an oral slide, an anal swab, an anal slide, and a swab from a pair of underpants belonging to the girl. All three of the cotton swabs collected from the child provided NO hint of any semen. Furthermore, DNA testing of these swabs showed the presence of ONLY the young girl’s DNA—with no indication that a single DNA marker from Mr. C or anybody else. All three of the slides prepared from the child also provided NO indication of semen. No further analysis was conducted on the slides.

The cotton swab from the underpants also provided NO indication of semen. DNA testing from this same item indicated the presence of a DNA mixture. The major component of this mixture—as one might expect—originated from the young girl. After all, she WAS the owner of the underpants. The crime lab analyst reported that Mr. C, “….could not be excluded as a minor contributor to the DNA mixture reported from the cotton swab collected from the underpants.” This conclusion was based upon the detection of 1 or 2 NANOGRAMS of male DNA on the cotton swab. The lab analyst estimated a 32.7 to 1 ratio of female DNA to male DNA on the swab from the underpants.

The defense attorney representing Mr. C contacted my consulting company and requested my examination of the DNA case reports and supporting documents. It became immediately clear that the scientific information being relied upon by the prosecution was enormously flawed and misleading. Defying any logical explanation, DNA profiles—for comparison to the DNA results from the underpants—were determined for ONLY two individuals residing in the tiny household. Yes, ....you read that correctly—reference samples were typed for DNA ONLY from the young girl and Mr. C. No genetic information at all whatsoever was gathered from the mother of the four children, the young girl’s two siblings—or MOST IMPORTANT—her one-year old half brother.

It is vital to be clear on this issue: ….The young girl’s half-brother was indeed a MALE, ....OBVIOUSLY a close genetic relative of Mr. C—HIS SON. Neglecting to collect DNA reference standards from this boy, as well as everyone else residing within the household, was a catastrophic oversight on the part of the investigators assigned to this case. Collecting known DNA reference samples from ANY individuals who may have contributed DNA to a crime scene is a FUNDAMENTAL CONCEPT IN FORENSIC SCIENCE.

Recall that an infinitesimally small quantity of MALE DNA was detected on the swab collected from the young girl’s underpants. What we are talking about here is 1 or 2 BILLIONTHS of a gram of material. Any qualified forensic biologist is aware that fewer than 300 skin cells is all that is needed to extract such a tiny quantity of DNA.

Note that a clump of 300 cells—which is scarcely visible—could easily occupy the very tip of a toothpick. Also keep in mind that the average person sheds approximately 36,000 skin cells—PER MINUTE. With this in mind, picture the young girl, in the confined environment of a small, cluttered mobile home, often clad in little more than a pair of underpants and a tee shirt. Imagine her wrestling around and playing with her adorable one-year old male half sibling.

Now imagine this youngest member of the household—a toddler—and his many daily encounters with saliva-caked toys, snacks, sippy-cups, and every other intriguing item he can get his hands on. Also try to picture the toddler’s endless lingering encounters with respiratory infections. Consider this one-year old boy, with his nasal cavities continually draining, and his distinct genetic relatedness to his biological father—Mr. C. Beyond all comprehension, no individual associated with this investigation could conjure up a rationale for collecting a reference DNA sample from this pint-sized DNA factory.

Similar to the previous two cases, Mr. C and Mrs. C were never in negotiations for a Better Homes and Gardens cover photo. Through countless potential DNA transfer events, it is certain that the all six occupants of the tiny home had contributed to an array of DNA mixtures, ready for forensic detection off of the bathroom towels, washcloths, toothbrushes, combs, door knobs, handles on cabinets, closets, faucets, refrigerators, freezers, bedding, pillows, furniture, carpet, clothing, televisions, remote controls, telephones, pens, pencils, toys, car keys, ….the list is endless.

Most contradictory to the prosecution’s case, the lab analyst could not escape the astounding fact that a portion of the male DNA profile detected on the young girl’s underpants COULD NOT HAVE ORIGINATED FROM EITHER MR. C OR HIS ONE-YEAR OLD MALE CHILD.

Yes, you read that correctly, and NO, I am not joking. During the trial, neither the lab analyst, nor the prosecution team, attempted to formulate an explanation of WHO this unknown male individual might be. Neither the state, nor the defense, attempted to suggest that the young girl was abused by this mysterious, unidentified male. On the contrary, the detection of DNA from an unknown male upon such a disturbing location—ON THE UNDERPANTS OF THE ALLEGED VICTIM—merely emphasized an inescapable fact. An unknown male, perhaps five years old, ....or perhaps eighty-five years old, had—at some point in time—ventured into the single-wide mobile home.

Once inside the home, a source of DNA from this male somehow became incorporated into the ‘primordial soup-like’ myriad of DNA mixtures that were already abundantly present throughout the tiny dwelling. How this DNA came to be on the child's underpants was anybody's guess. The prosecution shrugged this off as "irrelevant" and enthusiastically forged ahead with the poorly-conceived case.

Beyond the biological evidence and resulting DNA data associated with this case, the investigation and trial included an assortment of contradictory statements and baffling courtroom testimony from the mother of the four children. Clearly, the woman was frustrated with her inability to persuade her husband to curb his drinking and conform to her perception of an ideal husband. It was also clear that the young girl’s accounts of the night in question were profoundly murky and inconsistent. Only a vague whisper of clarity became apparent when the girl’s mother was close by—and actively managing the interrogation process.

After four hours of deliberation, the jury somehow found Mr. C guilty and sentenced the man to 18 years of incarceration. His first opportunity for parole will arrive after serving 9 years of this ridiculously inappropriate sentence. This verdict was a genuine judicial abomination. Speaking strictly with reference to the biological evidence and the LACK of DNA results, the case targeting Mr. C was arguably weaker than the cases against Mr. A and Mr. B. Please do not misinterpret this revelation. Mr. A and Mr. B were rightfully exonerated by a jury of their peers. In both cases, it was abundantly clear that NO CRIME HAD BEEN COMMITTED. The scientific results associated with the prosecution of all three defendants included a virtual orgy of investigative errors and scientific misinterpretations.

My questions to the readers of this article are as follows:

How should our judicial system proceed from here to correct Society's Lastest Legal Disaster? Should we ‘lighten up’ on the prosecution of individuals who have been accused of sexually abusing children?

While we are all aware that this probably will not and should not happen, it is important that our society AT LEAST begins taking steps to persuade a more ethical, professional approach to the investigation, scientific assessment, and prosecution of these emotionally-driven criminal cases. If the Penn State/Jerry Sandusky Scandal has taught us anything, we now know that it is NEVER acceptable to hesitate with respect to reporting such crimes. More specifically, it is vital for all individuals who find themselves involved in these tragic circumstances to function as accurate, and outspoken witnesses of the truth. Some recent articles illuminating how the TRUTH has gotten away from us are as follows:

AMERICAN FAMILY RIGHTS: A CRIMINAL DEFENSE ATTORNEY'S VIEW OF FALSE CHILD SEXUAL ASSAULT ALLEGATIONS

JEOPARDY IN THE COURTROOM: A SCIENTIFIC ANALYSIS OF CHILDREN'S TESTIMONY (BOOK REVIEW)

LEARNING FROM THE MCMARTIN HOAX

DAY-CARE-SEX-ABUSE-HYSTERIA

The next article is entitiled: What the Heck is DTC Genetic Testing?
 

Michael J. Spence, Ph.D.

January 22, 2012

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