STORY: "Traces of Crime: How New York’s DNA Techniques Became Tainted," by Lauren Kirchner, published by The New York Times in collaboration with ProPublica on September 4, 20
(Lauren Kirchner is a senior reporting fellow for ProPublica, an independent, nonprofit newsroom that produces investigative journalism in the public interest. This article was produced in collaboration with ProPublica, an independent, nonprofit newsroom that produces investigative journalism in the public interest.)
PHOTO CAPTION: "Evidence is examined at the DNA laboratory in the office of New York City’s chief medical examiner. Two DNA analysis methods — high-sensitivity testing and the Forensic Statistical Tool, or FST — have been discarded amid questions about the accuracy of their results. "
SUB-HEADING: The city’s medical examiner has been a pioneer in analyzing complex DNA samples. But two methods were recently discontinued, raising questions about thousands of cases.
GIST: Over
the past decade, the DNA laboratory in the office of New York City’s
chief medical examiner emerged as a pioneer in analyzing the most
complicated evidence from crime scenes. It developed two techniques,
which went beyond standard practice at the F.B.I. and other public labs,
for making identifications from DNA samples that were tiny or that
contained a mix of more than one person’s genetic material. As
its reputation spread, the lab processed DNA evidence supplied not only
by the New York police, but also by about 50 jurisdictions as far away
as Bozeman, Mont., and Floresville, Tex., which paid the lab $1,100 per
sample. Now
these DNA analysis methods are under the microscope, with scientists
questioning their validity. In court testimony, a former lab official
said she was fired for criticizing one method, and a former member of
the New York State Commission on Forensic Science said he had been wrong
when he approved their use. The first expert witness allowed by a judge
to examine the software source code behind one technique recently
concluded that its accuracy “should be seriously questioned.” Earlier this year, the lab shelved the two methods and replaced them with newer, more broadly used technology. A
coalition of defense lawyers is asking the New York State inspector
general’s office — the designated watchdog for the state’s crime labs —
to launch an inquiry into the use of the disputed analysis methods in
thousands of criminal cases. While the inspector general has no
jurisdiction over the court system, any finding of flaws with the DNA
analysis could prompt an avalanche of litigation. Previous convictions
could be revisited if the flawed evidence can be shown to have made a
difference in the outcome. The
medical examiner’s office “has engaged in negligent conduct that
undermines the integrity of its forensic DNA testing and analysis,” the
Legal Aid Society and the Federal Defenders of New York wrote the
inspector general on Friday. Because the lab has kept problems with its
“unreliable” testing and “unsound statistical evidence” secret from the
public and the courts, they continued, “innocent people may be wrongly
convicted, and people guilty of serious crimes may go free.” In
addition to those convicted using the disputed methods, many defendants
may have chosen to plead guilty when they learned prosecutors had DNA
evidence against them. Their cases face significant barriers to
reconsideration.
The
medical examiner’s office stands by its science. Its chief of
laboratories, Timothy Kupferschmid, said that the discarded techniques
were well-tested and valid, and that the lab was adopting newer methods
to align with changing F.B.I. standards. He compared it to a vehicle
upgrade. “So
just because we’re switching to the new model, I mean, our old pickup
truck worked great, but my new pickup truck is so much better,” he said. One case that hinges on the disputed DNA techniques stemmed from the beating of Taj Patterson in December 2013.
A group of Hasidic men attacked Mr. Patterson, a black student, in the
Williamsburg section of Brooklyn. Prosecutors blamed the attack on the
Shomrim, a Hasidic group that patrols Williamsburg, a neighborhood where
tensions between orthodox Jews and blacks have long simmered. Six days after the attack, the police found one of Mr. Patterson’s black Air Jordan sneakers on a nearby roof. The
police sent the sneaker to the DNA lab, where a technician swabbed a
3-inch by 6-inch area of its heel — and recovered 97.9 picograms of DNA
from at least two people. A picogram is one trillionth of a gram. The
sample bore Mr. Patterson’s DNA. Using software developed in-house, the
lab calculated that it was 133 times more likely than not that the
remainder belonged to Mayer Herskovic, a young father who lived and
worked in Williamsburg and had no criminal record. “I
don’t believe that this is DNA,” Mr. Herskovic said. “A mixture, like
you take milk, orange juice and water and you mix it, what is it? Is it
still milk? Is it still orange juice? I don’t know.” “DNA is the magic word,” he added. “If you throw it into a trial, they eat it up. For me, it’s not magic at all.” No
other physical evidence linked Mr. Herskovic to the attack on Mr.
Patterson, who was blinded in his right eye. Neither the victim nor
those who witnessed the crime identified Mr. Herskovic at trial, nor was
he seen on surveillance video. Mr. Herskovic said he has never been
part of the Shomrim, and deplored the assault on Mr. Patterson. Nevertheless, he was convicted by a judge of gang assault, and sentenced this past March to four years in prison. He is appealing. Three years ago, Barry Scheck,
a co-founder of the Innocence Project, a nonprofit that uses DNA
evidence to exonerate wrongly convicted prisoners, yelled at his
colleagues on the state forensic commission about the potential perils
of the DNA work at the city’s lab. “The
day of reckoning is going to come,” Mr. Scheck told his fellow
commissioners, some of whom rolled their eyes, a video of the meeting
showed. “Someday people are going to review this,” he continued. “It’s
an Ebola. It is a cancer here that could be spreading. We are all on
notice.”"
https://www.nytimes.com/2017/09/04/nyregion/dna-analysis-evidence-new-york-disputed-techniques.html?_r=0
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c