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Authorities for Funds for DNA Defense Experts
Cade v. State, 658 So.2d 550 (Fla.App. 1995)
DuBose v. State, 662 So.2d 1189 (Ala. 1995)
Husske v. Commonwealth, 448 S.E.2d 331 (Va.App. 1994)
Polk v. Mississippi, 612 So.2d 381 (Miss. 1992)
This is the tenth in a series of articles addressing funds for independent defense expert assistance in light of the substantial new funding available statewide under 1994 amendments to KRS 31.185 and 31.200.
A review of the scientific thinking, the law and common sense reveals that funds for defense DNA experts in criminal cases is necessary.
Scientists Recognize Need for Defense DNA Experts
A two year comprehensive study by the National Research Council of the National Academy of Sciences, which by authority of its 1863 charter granted by Congress is required to advise the federal government on scientific developments, was published April 16, 1992 entitled, DNA Technology in Forensic Science. (NRC Report). The study was conducted by a group of scholars high-ly regarded in medicine, science and law. It was undertaken to evaluate the controversies which erupted in the scientific community concerning deoxyribonucleic acid (DNA) methodology. The report acknowledges certain elements of DNA methodology are the subject of continuing scientific debate. This eminent publication was forth-right in its judgment that due to the complexities which underlie the methodology of DNA analysis that defense resources are crucial:
Courts in Alabama, Mississippi, Virginia, and Florida agree with the National Academy of Sciences that criminal defendants are entitled to their own independent, defense DNA experts and the funds necessary to employ these expensive serological specialists. Nothing could be more obvious in light of what is at stake in a criminal trial and in view of the mythical persuasive power of DNA results. See Petterson, Indigent Defense: DNA Experts for Indigents, The Champion, Vol. 18, No. 10 (Dec. 1994) at 29.
Common sense tells us that to insure fair deci-sionmaking and reliable results the defense has to be given the resources "to develop the shortcomings in the DNA methodology used by the Commonwealth's witnesses, and to explain the current controversy surrounding the reliability of the underlying statistics." Husske, infra, at 340.
When "zealous experts are not forthcoming about the limitations and shortcomings of DNA evidence, defense attorneys must be prepared to identify and explain the relevant issues in cross-examination and with experts of their own." Koehler, DNA Matches and Statistics: Important Questions, Surprising Answers, 76 Judicature 222, 229 (1993).
A look at four cases shows the uniformity of thinking on the necessity of funds for DNA experts.
In Polk v. Mississippi, 612 So.2d 381 (Miss. 1992) the defendant was convicted of two homicides and sentenced to two life sentences. Polk analyzed Ake and determined that as a matter of due process "It is also imperative that no defendant have [DNA] evidence admitted against him without the benefit of an independent expert witness to evaluate the data on his behalf." Id. at 393.
In Husske v. Commonwealth, 448 S.E.2d 331 (Va.App. 1994) the defendant was convicted of sodomy, rape, robbery and breaking and entering. A prosecution DNA expert testified on direct examination at trial that the likelihood of a randomly selected caucasian bearing the same DNA profile as the defendant's was 1 in 700,000. On cross-examination the state's expert amazingly said "there was no controversy in the scientific community about the validity of the FBI [DNA] data base." Id. at 333.
The trial judge refused to authorize funds for a defense DNA expert but peculiarly did appoint co-counsel who was represented as being "the most knowledgeable member of the local bar in the area of forensic DNA application." Id.
Husske reversed the trial judge and observed that Ake's "touchstone inquiry is the extent to which the assistance of an expert in this case would have militated against the risk of error if the expert assistance were not provided." Id. at 335. The Virginia Court relied heavily on the NRC Report which found ongoing challenges to DNA methodology in the scientific community. In light of these controversies, the Court noted that "some states recently have held DNA statistical computations evidence inadmissible because the methodologies do not possess 'general acceptance...in the relevant scientific community.'" Id. at 338.
Husske held that the defendant was entitled to funds for a defense expert to reduce the risk of error in the trial because a defense expert could:
2) testify to the random match controversy;
3) assist in cross-examining the state's DNA expert's technical analysis to diminish the weight of that opinion;
4) attack the credibility of the state's expert's disavowal of knowledge of a data base controversy; and
5) allow the defense to raise doubts about the strength of the prosecution's case.
Unfortunately, Husske was affirmed by the evenly divided Court of Appeals on rehearing en banc, 462 S.E.2d 120,(Va.App. 1995) and by the Virginia Supreme Court in Husske v. Commonwealth, 476 S.E.2d 920 (Va. 1996), cert. denied, 519 U.S. 1154, 117 S.Ct. 1092, 137 L.Ed.2d 225 (1997). However, the Virginia Supreme Court was clear in holding that under Ake and Caldwell indigent defendants are entitled to the assistance of an expert if there is a showing of "particularized need for such services and that he will be prejudiced by the lack of expert assistance." Id. at 926. The Court found that the defendant's generalized statements in his motions were insufficient to meet that test of particularity in this case.
In DuBose v. State, 662 So.2d 1189 (Ala. 1995) the Supreme Court of Alabama was faced with the question of whether Edward DuBose was improperly convicted of 3 counts of capital murder because of the failure to afford him funds for DNA defense expert help.
First, the Court confronted the timeliness of the request for funds. Three days after DuBose was arrested, the defense knew DNA would be used by the prosecution, and the defense requested discovery of evidence relevant to that testing. The following month, the defense informed the Court that it would not ask for expert funds until the state's results were turned over. The defense received test results 4 months later, and did not receive autorads and lab notes for another 8 months. Nine months after arrest, the defense asked for funds for DNA experts and the state contended that request was untimely.
DuBose held it was "reasonable for defense counsel to wait for the prosecution's results before seeking expert assistance.... The prosecution's DNA results could have been exculpatory or inconclusive, thereby eliminating the need for a defense expert. Until the autorads, laboratory notes, and other data were available to the defense, there was little, if any, assistance that an expert could have provided." Id. at 1194.
Next, the Court found adequate
the showing that expert help was necessary. In analyzing the necessity,
the Court noted:
"Given the weight that a jury could place on DNA tests and the statistics drawn from them, coupled with the unlikelihood that defense counsel will have the expertise to challenge that evidence," DuBose held that "an indigent defendant against whom DNA evidence will be offered must have access to a DNA expert to assist in his defense." Id. at 1197.
DuBose recognized that without a defense DNA expert, the defense could not:
In Cade v. State, 658 So.2d 550 (Fla.App. 1995) the defendant was convicted of kidnapping, sexual battery, robbery, burglary and theft. The state DNA expert testified that Cade's DNA matched the DNA in the semen found on the victims' clothing. The evidence of guilt was circumstantial. Neither victim could identify the defendant.
The defense attorney promptly asked for a DNA expert, identified a particular expert to the court and provided an estimate of costs. The trial judge denied the request saying it could be renewed if the defense did not find what it needed after taking the deposition of the state expert or searching the library at the university.
Cade held that the trial judge abused its discre-tion since "there was a substantial risk that the failure to supply the defendant with an expert deprived the defendant of a fair trial." Id. at 553. The Court's rationale for finding funds for a defense expert were necessary included:
Sample Affidavit in Support of DNA Funds
For those interested in the specifics of a threshhold showing, Dubose v. State, 662 So.2d 1156 (Ala.Cr.App. 1993) aff'd Dubose v. State, 662 So.2d 1189 (Ala. 1995) contained excerpts from a December 4, 1989 affidavit of the New York attorney Peter J. Neufeld on the necessity of funds for defense experts, and expected fees and expenses of $10,000 - $30,000 for qualified assistance. It read in part:
"a. I was co-counsel...on People v. Castro, 545 N.Y.S.2d 985 (N.Y.Sup. 1989), the first trial court in the nation to exclude DNA evidence of a match on the grounds that the evidence was not sufficiently reliable.
"b. I served as a member of the New York State Governor's task force on the implementation of DNA testing from 1988 through 1989.
"c. I am co-chair of the DNA subcommittee of the National Association of Criminal Defense Attorneys. In that capacity I com-municate with attorneys throughout the country who are handling DNA cases. Consequently, I am quite familiar with the costs essential to the adequate defense of an action involving DNA evidence proffered by the prosecution.
"3. By way of background, it is useful and appropriate to appreciate that the question of DNA testing's reliability is still an open and hotly contested matter in this nation's courts. It is sometimes suggested by DNA's proponents that the need for often lengthy and costly pre-trial hearings in DNA cases has been all but eroded due to the first three state court appellate decisions, all of which affirmed trial court rulings admitting evidence of a DNA match. A brief review of the DNA litigation to date, however, will surely demonstrate that the need for these hearings and the retention of experts is greater than ever before.
"4. Andrews v. State of Florida, 533 So.2d 841 (Fla.App. 1988), [cert. denied, 542 So.2d 1332 (Fla. 1989),] stands as the nation's first appellate decision on DNA profiling. Regrettably, the Andrews court's affirmance of DNA technology was based on the review of a trial record in which the defense called no witnesses in opposition and the cross-examination of the prosecution witnesses was, at best, perfunctory. In the second and third appellate decisions, Cobey v. [State], 80 Md.App. 31, 559 A.2d 391, cert. denied, 317 Md. 542, 565 A.2d 670 (1989), and Spencer v. [Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990); Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1990), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990)], once again the defense mounted no challenge to the reliability of the techniques - no de-fense witnesses were called and defense attorneys conceded on the record that none could be found.
"5. In contrast, in the Castro case, decided on August 14, 1989, the defense called six world renown scientists to challenge the admissibility of Lifecodes DNA test results which had declared a match.... The[y] testified...that Lifecodes methods of doing DNA typing were both unreliable and would be generally rejected by the scientific community. The Castro court expressly held that Lifecodes methods for declaring a match were not sufficiently reliable to be presented to a jury. I am informed by representatives of Lifecodes that many of their critical methods have changed this fall in response to the Castro decision. However, since the testing in your case occurred during late 1988 and early 1989, none of these improvements would have been in place at the time testing was completed for the April 27, 1989, Lifecodes report.
"6. Quite recently, as other lawyers rapidly realized that there was less to DNA profiling than was implied in the private company's hype, more defense challenges succeeded. Earlier this month, in a unanimous decision, the highest appellate court in Minnesota reversed a trial court order admitting DNA evidence and ruled that Cellmark Diagnostics (along with Lifecodes, the second key supplier of forensic DNA testing) had not demonstrated that their methods and results were sufficiently reliable to be presented to a jury in a criminal case. [State] v. Schwartz, [447 N.W.2d 422 (Minn. 1989)]. And, although not an appellate decision, the trial court in [State] v. Pennell, [No. Crim. A. IN88-12-0051, -0052, and 0053, 1989 WL 167430 (Del.Super. Nov. 6, 1989)], ruled that Cellmark had failed to demonstrate that its methods for calculating probabilities would be reasonably relied upon by the scientific community. The critical distinction between Schwartz, Pennell, and Castro on the one hand, and the first three appellate decisions on the other hand, is that in the three cases where the court heard from knowledgeable defense experts, the prof-fered evidence was found wanting and at least partially excluded.
"7. Moreover, the role of suitable defense experts cannot be overlooked in their ability to review the tests and at times compel the testing lab to withdraw the evidence. This in fact occurred recently in cases where Lifecodes had completed the DNA testing, i.e., at first Lifecodes declared a match and subsequently they opined that the evidence was inconclusive.
"8. The retention of suitable experts is a relatively expensive undertaking. In part this is due to the fact that DNA profiling is such a new technology that there are few scientists sufficiently expert not only in the biological sciences but in the forensic applications as well....
"10. Unlike conventional fingerprinting, analysis of the raw data in DNA cases will often consume dozens of hours. Lab note-books which detail more than a dozen steps in the procedure must be scrutinized; the autorads alone, which are rarely pristine and clear, require hours of analysis to assist in a meaningful interpretation. For instance, in the Castro case, prosecution experts after an initial review of the autorads, considered them of good quality, generating reliable results. But after numerous problems were pointed out by the defense experts, the same prosecution experts re-reviewed the autorads and acknowledged the existence of flaws they had not previously noticed. Not only is the assistance of a molecular biologist called for, but a population geneticist is equally indispensable. If the testing lab declares a match, the second question concerns the probability of such a match occurring at random in the population.... In the Castro case, the defense experts' combined time spent in out-of-court consultation exceeded 300 hours. Perhaps this is an extreme ex-ample, but in many of the cases about which I am personally familiar, where the defense retained experts, the out-of-court time frequently exceeded 100 hours.
"11. There is no question that without al-locating several thousand dollars to the defense for challenging the DNA evidence, a pre-trial admissibility hearing can be conducted. But it is equally clear that without the necessary expenditure of funds, the hearing will be a sham and a denial of due process will ensue."
Some things in the law are no brainers. DNA test procedures are not perfect. DNA experts make mistakes. The testing process is not foolproof. DNA results can have great effect when heard by factfinders. Cases involving DNA where identity is a contested issue require funds for defense experts who can consult, test and testify to in-sure the factfinders have both sides of this controversial, complex, confusing scientific process. Fair process and reliable results require no less.