War stories from times past….
At the Air Force JAG school, a group of us were goofing around, trying to come up with the best way to get out of an Air Force enlistment. The winner: a military policeman, ready to stand guard duty at the Main Gate, tattooing his saluting hand with a disrespectful ‘F— Air Force’
IS IT JUST JUNK SCIENCE?
Two recent publications contain materials of high interest to defense counsel. They deal with ‘shaken baby syndrome’ and questionable DNA ‘evidence.’
1. Shaken babies — shaken science
A front-page article in the 23 March 2015 Washington POST raises public awareness on the controversial subject of shaken baby syndrome. The article features two full pages of what many call the “disputed science” involved in so-called shaken baby syndrome. Bottom line: Testing cannot conclusively show that violent shaking produces what prosecution ‘experts’ claim — bleeding and swelling in the head or proof found in the back of the eyes.
2. Junk DNA?
The April 2015 issue of the CHAMPION magazine of the NACDL contains a thoughtful article on DNA evidence.
The article focuses on privacy — collecting, analyzing, and storing DNA samples which are convertible to DNA profiles. This process began in 1990 when the FBI established CODIS, the combined DNA Index system. Evolving technology means that this lab work is now relatively cheap. The authors caution that there is a true potential threat to privacy when law enforcement can learn everything about an individual’s genetics from such relatively simple and inexpensive lab analyses.
The article also touches on case law. In Maryland v. King, the Supreme Court — by slim majority — upheld the constitutionality of DNA profiling for individuals charged with serious offenses. There is a strong argument that King based its conclusion on outdated concepts which severely limited the use of DNA evidence. Given the explosion of new uses, the issue may be ripe for reconsideration. Help for this view can be found in a far more defense-friendly decision: In People v. Buza, California courts refused to apply the King analysis to its state DNA protocols.
A second DNA article is pertinent as well. The Jan/Feb 2015 CHAMPION considers a modern dilemma faced by attorneys –‘If there is DNA evidence, the accused must be guilty.’ The article lists some useful tips for the defense — the authors caution that unless set into proper context, DNA statistics are “nonsensical and somewhat intimidating.” Moreover, DNA evidence does not necessarily prove the prosecution’s theory is true. There may be an innocent conclusion that can be drawn – e.g., the accused’s semen might be present at the scene; but DNA does not prove how it got there The prosecution’s theory of rape might be true – but consensual sex is equally possible.
The article contains useful tips for practitioners seeking to challenge DNA results. Two key questions::
1. Was the prosecution heavily involved in the DNA extraction and testing process.
2. Did the prosecution exercise undue influence on the lab.
In that area, defense counsel might draw persuasive strength from the FBI scientists who recently conceded they had manipulated forensic results. Good fodder for voir dire as well.