Findings pertaining to characteristics of the 28 DNA exculpatory cases identified during the study are discussed first. The chapter concludes with the results of the telephone survey of DNA laboratories.

General Characteristics Shared by Many Study Cases

The 28 cases in this study were tried in 14 States and the District of Columbia. The States are Illinois (5 cases), New York (4 cases), Virginia (3 cases), West Virginia (3 cases), Pennsylvania (2 cases), California (2 cases), Maryland, North Carolina, Connecticut, Kansas, Ohio, Indiana, New Jersey, and Texas. Many cases share a number of descriptive characteristics, as noted below.

Most cases mid to late 1980s

Most cases involved convictions that occurred in the 1980s, primarily mid to late 1980s, a period when forensic DNA technology was not readily accessible. The earliest case involved a conviction in 1979, the most recent in 1991.

In each of the 28 cases, a defendant was convicted of a crime or crimes and serving a sentence of incarceration. While in prison, each defendant obtained, through an attorney, case evidence for DNA testing and consented to a comparison of the evidence-derived DNA to his own DNA sample. (In Nelson, the prosecutor conducted the tests.) In each case, the results showed that there was not a match, and the defendant was ultimately set free. Exhibit 2 presents an overview of the study cases.

Sexual assault the most frequent crime

All 28 cases involved some form of sexual assault. In six (Bloodsworth, Cruz, Hernandez, Linscott, Nelson, and Vasquez), assailants also murdered their victims. All alleged assailants were male. All victims were female: most were adults, others teenagers or children. All but one case involved a jury trial. (The nonjury case, Vasquez, involved a guilty plea from a defendant who had mental disabilities.) Of the cases where the time required for jury deliberations was known, most had verdicts returned in less than one day, except for Kotler, which required two days.

Prison time served

The 28 defendants served a total of 197 years in prison (an average of almost 7 years each) before being released as a result of DNA testing. The longest time served was 11 years, the shortest 9 months. For a variety of legal reasons, defendants in several cases continued to remain in prison for months after exculpatory DNA test results. In Green, DNA testing was performed after conviction but prior to sentencing.

Many defendants also qualified for public defenders or appointed counsel. Most defendants appealed their convictions at least once; many appealed several times. Most appeals focused on trial error (e.g., ineffective assistance of counsel) or new evidence. For example, in some cases, the victims recanted their defendant identification testimony.

Prior police knowledge of the defendants

Police knew 15 defendants prior to their arrests, generally through criminal records. It is not known whether, in some cases, that may have influenced police to place suspects in photo spreads and lineups shown to victims and other eyewitnesses.

Evidence Presented During/After Trial: Common Attributes

The 28 cases shared several common themes in the evidence presented during and after trial.

Eyewitness identification

All cases, except for homicides, involved victim identification both prior to and at trial. Many cases also had additional eyewitness identification, either placing the defendant with the victim or near the crime scene (e.g., in Bloodsworth, five witnesses testified that they had seen the defendant with the nine-year-old victim on the day of the murder). Exhibit 3 presents an overview of the evidence and DNA testing in the study cases.

Many defendants presented an alibi defense, frequently corroborated by family or friends. For example, Edward Honaker's alibi was corroborated by his brother, sister-in-law, mother's housemate, and trailer park owner. The alibis apparently were not of sufficient weight to the juries to counter the strength of the eyewitness testimony.

Use of forensic evidence

A majority of the cases involved non-DNA-tested forensic evidence that was introduced at trial. Although not pinpointing the defendants, that evidence substantially narrowed the field of possibilities to include them. Typically, those cases involved comparisons of nonvictim specimens of blood, semen, or hair at the crime scene to that of the defendants. Testimony of prosecution experts also was used to explain the reliability and scientific strength of non-DNA evidence to the jury.

Alleged government malfeasance or misconduct

Eight cases, as reported by defense attorneys and reflected in some judges' opinions, involved allegations of government misconduct, including perjured testimony at trial, and prosecutors who intentionally kept exculpatory evidence from the defense, and intentionally admitted erroneous laboratory tests and expert testimony at trial as evidence. For example:

· In Honaker, the defendant's attorney alleged that the government intentionally kept exculpatory evidence from the defense, including information that two of the government's witnesses were secretly hypnotized to enhance their testimony and that the prosecution's criminalist was never told that Honaker had a vasectomy (and could not have been the source of the sperm in the victim).

· In Cruz, a supervising officer in the sheriff's department admitted, during the third trial, that he had lied about corroborating the testimony of his deputies in the earlier trials. This testimony focused on Cruz's "dream visions" of the murder.

· In Kotler, the government's serologist reportedly lied about his qualifications. In addition, Kotler's attorneys alleged that the government intentionally withheld exculpatory evidence from the defense. For example, police reports stated that the victim did not actually positively identify the defendant's picture but described him only as a "look alike." Furthermore, as recorded in police reports, the victim's description of the defendant was inaccurate for age, height, and weight. The defense was never informed about those reports.

· In cases involving defendants Glen Woodall, William O'Dell Harris, and Gerald Wayne Davis (and his father), the perjured testimony of Fred Zain, a serologist then with the West Virginia State Police, was in large part responsible for the wrongful convictions that ensued. The West Virginia Supreme Court of Appeals, in a special report on Zain's misconduct in more than 130 criminal cases, stated that such behavior included " overstating the strength of results; reporting inconclusive results as conclusive; ... repeatedly altering laboratory records; . . . ¹ The report also noted that Zain's irregularities were "the result of systematic practice rather than an occasional inadvertent error." In addition, the report stated that Zain's "supervisors may have ignored or concealed complaints of his misconduct."²

· In Alejandro, the defendant was also wrongfully convicted by expert testimony from Fred Zain, who had moved from West Virginia to Texas and worked for the Bexar County crime laboratory. In July 1994, a Uvalde County grand jury indicted Zain for perjury, tampering with government records, and fabricating evidence. As of early 1996, charges of tampering and of fabricating evidence had been dropped, leaving three charges for aggravated perjury in effect, for which Zain reportedly seeks dismissal on statute of limitations grounds.

Evidence discovered after trial

In most of the cases in this study, DNA test results represented newly discovered evidence obtained after completion of the trials. States have time limits on fling motions for new trials on the basis of newly discovered evidence. For example, in Virginia, new evidence must be presented by motion within 21 days after the trial.³ Thus, the Honaker, Snyder, and Vasquez cases required a pardon from Virginia's governor to release the defendants from prison.

In some of the study cases, prosecutors waived time limits when presented with the DNA exculpatory results. However, prosecutors also have contested defendants' attempts to release evidence for DNA testing.

States also differ in the legislation and procedures pertaining to postconviction appointment of counsel and to authorization to pay for the DNA testing. Many cases involved indigents.

DNA testing

The DNA testing phase of these cases also has common characteristics. Nearly all the defendants had their tests performed by private laboratories. The tests were conducted using blood from defendants, blood or blood-related evidence from victims, and semen stains on articles of the victims' clothing or on nearby items (a blanket was tested in one case). In over half the cases, the prosecution either conducted a DNA test totally independent of that of the defense or sent test results obtained by the defendant's laboratory to a different one to determine whether the laboratory used by the defense interpreted test results properly.

Eight laboratories used Restriction Fragment Length Polymorphism (RFLP) DNA testing, 17 conducted Polymerase Chain Reaction (PCR) testing, and 2 used both tests. For one case, the type of DNA test conducted is unknown.

Preservation of evidence

In some cases, evidence samples had deteriorated to the point where DNA testing could not be performed. In Brison, the laboratory could not test cotton swabs from the rape kit but, instead, tested a semen stain from the victim's underwear. In Daye, after the appellate court affirmed the defendant's conviction and the State Supreme Court denied certification, the evidence was about to be destroyed when Daye's attorney filed to stay the destruction in order to conduct DNA testing.

The chain of custody in some of the cases also demonstrated a lack of adherence to proper procedures. Authorities on the subject note that the "mishandling" of real evidence affects the integrity of the factfinding process."⁴ In Dabbs, the defendant's attorneys reported that the defense was initially advised by the prosecution that the evidence (Victim's underwear that contained a semen stain) had been destroyed (a conclusion based on failure of authorities to find the evidence in police or court custody). Eventually, the defense found the evidence at the county crime laboratory.

Results of DNA Laboratory Survey

Conducted in June 1995, the nationwide telephone survey of 40 public and private laboratories that performed DNA tests sought answers to such questions as: From the time the laboratories began DNA testing, how many cases have they handled? Of that number, what percentage yielded results that excluded defendants as sources of the DNA evidence or were inconclusive?

The 40 surveyed laboratories yielded 19 whose available data were sufficient for the purposes of this study. The 19 included 13 at the State/local level, 4 in the private sector, an armed forces laboratory, and the FBI's laboratory.

Most of the laboratories had initiated DNA testing only within the previous few years. Twelve began testing between 1990 and 1992. Three of the four private laboratories began in 1986 or 1987, while the FBI started DNA testing in 1988.
Seven of the laboratories reported using RFLP testing; four, PCR testing; and eight, both types of tests.

The 19 laboratories reported that, since they began testing, they had received evidence in 21,621 cases for DNA analysis, with the FBI accounting for 10,060 cases. Three of the 4 private laboratories averaged 2,400 each; the State and local laboratories averaged 331 each.

In about 23 percent of the 21,621 cases, DNA test results excluded suspects, according to respondents. An additional 16 percent of the cases, approximately, yielded inconclusive results, often because the test samples had deteriorated or were too small. Inconclusive results aside, test results in the balance of the cases did not exclude the suspect.

The FBI reported that, in the 10,060 cases it received, DNA testing results were about 20 percent inconclusive and 20 percent exclusion; the other 18 laboratories (11,561 cases) reported about 13 percent and 26 percent, respectively. (If inconclusive cases were omitted, the exclusion rate for the FBI would be approximately 25 percent, and the average exclusion rate for the other 18 laboratories would be about 30 percent.)

Unfortunately, the laboratories were unable to provide more details. They did not maintain data bases that would permit categorization of DNA test results by type of offense and other criteria. What happened to the suspects who were excluded through DNA testing also cannot be determined. Were they released, or were they charged on the basis of other evidence, for example?

Thus, only the most general information is known about the results of DNA testing by laboratories. To obtain more detailed information would require a comprehensive research project.

Endnotes for Chapter II

1. Matter of West Virginia State Police Crime Laboratory, 438 S.E.2nd 501, 503 (W.Va. 1993).  [Back]

2. Id., at 504.  [Back]

3. Virginia Supreme Court Rules, Rule 3A: 15(b).  [Back]

4. Giannelli, Paul, "Chain of Custody and the Handling of Real Evidence," American Criminal Law Review, 20, 4 (Spring 1983):527-568.  [Back]