Monday, September 2, 2013

Wrongful Conviction Reversed In Vermont

John Grega's story represents the first ever wrongful conviction reversed—with the assistance of Spence Forensic Resources (SFR).

The following summary of these recently unfolding events has been provided by Michael J. Spence, Ph.D.—the founder of SFR:

On February 28, 2011, I was contacted by Ian P. Carleton, an attorney located in Burlington, Vermont. Ian asked for my assistance on a 1994 homicide case. Ian's client, John Grega, was accused—and later convicted—of the horrific beating, rape, and strangulation of his wife, Christine Grega. To the present day—and throughout an enormously protracted 19-year ordeal—Mr. Grega has persistently maintained his innocence. Ian informed me of the complete absence of any available funds. This was no surprise. Typically, sparse resources are available to pursue justice for a convicted man, such as John Grega. Ian asked if I would be willing to examine the case documents and provide my opinion—in the form of an affidavit—with hopes to persuade the Windham County (Vermont) Court’s approval of post-conviction DNA testing.

Before I agreed to review the case file—I asked Ian to explain the detailed circumstances of the homicide. The facts of the case were as follows:

John Grega, an educated man, was a partner in his father’s window-washing business. John, his wife Christine, and their 2-year-old son, John Henry Grega Jr., lived in the Long Island town of Lake Grove, NY.

The Gregas traveled to West Dover, Vermont for a family vacation. On September 12, 1994, the Gregas were staying at a small condominium complex called Timber Creek. On that fateful day, John took his toddler son out to a local playground. When John returned to Timber Creek, his child was sound asleep in the backseat of the car. Shortly after entering the condo, John found Christine, dead in the downstairs whirlpool bathtub.

After unsuccessfully attempting to revive Christine, John ran next door to have the neighbors call an ambulance. Although John thought that Christine might have still been alive, the medical examiner later determined that the woman had died from asphyxiation. She had also been brutally assaulted. Her body showed signs of more than 100 distinct injuries, including irrefutable evidence of a sexual assault.

The investigators and the prosecution fixated on the fact that there was no sign of forced entry into the condo. They theorized that Grega—in fear that his wife intended to abandon an allegedly troubled marriage—killed his wife and then left the apartment with his son to create an alibi. John Grega had no criminal record, no history of mental illness, and no history of violence—sexual or otherwise. There were no witnesses to the crime and virtually no physical evidence was introduced at the trial. Regardless of these facts—and based upon nothing beyond a purely circumstantial case—John was charged with Christine’s murder. Less than a year later, on August 4, 1995, a jury convicted John Grega of aggravated murder and aggravated sexual assault. John became the FIRST PERSON EVER sentenced in the state of Vermont to life in prison without any chance for parole.

Did the criminal justice system in Vermont get this wrong?

In order to answer this question, I agreed to assist Mr. Carleton and Mr. Grega, by providing them with a careful examination of the various relevant biological/DNA documents associated with the case. At the same time, the defense was incorporating the assistance of two additional DNA experts. These scientists were Shelley Johnson, a DNA analysis Group Leader at Fairfax Identity Labs (Richmond, Virginia) and Steven Laken, Ph.D., CEO of Cephos Corporation, (Tyngsboro, Massachusetts).

On March 29, 2011, I provided an affidavit—which addressed the Windham County Court. In parallel to the documents provided by Ms. Johnson and Dr. Laken, I attested to the urgent need to utilize powerful DNA technology—which was entirely unavailable in 1995. Such state-of-the-art tests hold the potential to reveal previously unobtainable results from ‘intimate’ items recovered from a variety of complex crime scenes. A passage from my affidavit—persuading the Windham County Court to utilize Y-chromosome-based DNA testing—appeared as follows:

"The YFiler system (trademark of Applied Biosystems, Inc.) has proven to be an extraordinarily effective diagnostic tool in criminal case investigations-particularly sexual assaults and child molestations. The reason for this effectiveness is the fact that, regardless of the load of DNA present from any female contributors, the Y Chromosome-based Y-STR system provides typing data only from any male DNA that is present within the detection limits. Y-STR based DNA typing was not available at the time that this crime occurred.

This technology would be particularly valuable for the analysis of any intimate swabs taken from Mrs. Grega’s body – specifically, oral, anal and vaginal swabs. A Y-STR DNA profile from any intimate swab might indicate the presence of biological material from John Grega or his two-year old son, John Henry Jr. These two Y-STR profiles would be identical, due to their father-son relationship. However, in the event that such a test reveals the presence of as little as one or a few unknown male genetic markers-alleles that cannot be accounted for by John Grega’s Y chromosome-this would conclusively establish presence of an unidentified male. Logic dictates that such a discovery would point to this individual as a person who engaged in intimate contact with Ms. Grega, sometime immediately prior to her death."


On September 2, 2011, the Vermont Court ordered the prosecution and the Vermont Attorney General’s Office to arrange for DNA testing of evidence from John Grega’s case. On May 14, 2012, a laboratory report was released—summarizing the extraordinary DNA test results. A DNA mixture was revealed on an anal swab that had been collected during the 1994 medical examination—from the deceased body of Christine Grega. Within that DNA mixture, THE MAJOR DNA PROFILE ORIGINATED FROM AN UNKNOWN MALE. To be clear, this unknown male IS NOT Mr. Grega. To this day, this mysterious male has yet to be identified.

Prosecutors working on the Grega case reluctantly agreed that—in light of these remarkable DNA results—Mr. Grega was entitled to a new trial. Consequently, the Court ordered such a trial to take place. On August 22, 2012, John Grega was finally released from prison, after serving 18 years for a crime that he clearly did not commit. John walked out of the Southern State Correctional Facility (Springfield, Vermont) and into the arms of his family and friends.

In a motion crafted by Mr. Carleton and the defense team, they wrote: “It is difficult to overstate the game-changing nature of this new evidence, especially in a case where, as here, the evidence of Mr. Grega’s guilt has at all times been purely circumstantial….” . They added “Put simply, we now have compelling evidence that John Grega did not commit the crime for which he has served nearly two decades in jail.”

John Grega’s tireless efforts to prove his innocence have been facilitated by the Innocence Protection Act—passed by the Vermont Legislature in 2008. This enormously vital social initiative allows individuals convicted of certain crimes—under questionable circumstances—to petition the court for various types of forensic tests—including DNA. Vermont Defender General, Matthew Valerio, pointed out that—at the time—many people were downplaying the importance of the 2008 legislation. Their claim was that “Vermont doesn’t convict innocent people.” Valerio refered to that view as: “.....pretty na├»ve. The thing that came up over and over again was this kind of thing doesn’t happen in Vermont.”

Defying logic, the Vermont prosecution team continued to subject John to this seemingly endless ordeal. They continued—over the course of an additional year—to try to salvage their case, in anticipation of a new trial. On August 21, 2013, the prosecution finally abandoned their poorly-conceived denial of the glaring truth. They dismissed all charges against the man. John Grega has now become the first person in Vermont’s history to be exonerated—based on DNA evidence obtained under the state’s 2008 Innocence Protection Act.

Michael J. Spence, Ph.D. September 2, 2013.

Friday, April 20, 2012

The Psychology of Scientific Misinterpretations: The Big Bang Theory, Fred Zain, Cognitive Bias, and The Texas Sharpshooter Fallacy

I am a huge fan of the comedy hit series “The Big Bang Theory”. Please don’t fret, this blog article IS about forensic science, …..with emphasis on DNA. If I were to focus upon everything I know about theoretical physics, this article would scarcely occupy more than ¼ page, ….even on a good day.

Refer to the final Big Bang Theory episode of Season 2, The Monopolar Expedition, ….with Part 2 of the storyline continuing into the first episode of Season 3.

Dr. Sheldon Cooper, a theoretical physicist, is chosen to go on a summer long expedition to the magnetic North Pole. On this adventure, he takes friends/colleagues: Leonard, Howard and Raj. When the four scientists return from the expedition, Sheldon is beside himself with satisfaction. Apparently, the group was able to collect exciting data that PROVED String Theory (On a good day, I might actually have a vague notion of this theory). Sheldon wasted no time in sending out notifications to everyone on his e-mail contact list-Sheldon’s long anticipated Nobel Prize in Physics was all but locked up.

Leonard, Howard and Raj approached Sheldon with a tragic reality check. They FIRST pointed out what an insufferable jerk he was--during the first portion of the expedition, …..when virtually NO USEFUL DATA had fallen into their lap. Sheldon’s comically remorseful friends confessed that their NOBEL PRIZE DATA, …..was nothing more than the result of an electric can opener—secretly being turned on and off.

Sheldon was informed that—due to the relentless aggravation of his North Pole bunk mates—it was a matter of 1) Pleasing Sheldon by temporarily falsifying some scientific data, ….or 2) Expel their expedition leader out into the cold, as a ‘snack’ for the polar bears. Sheldon, ….understandably hurt and humiliated, ….had no choice but to immediately author a follow-up e-mail, forfeiting his bragging rights to the next Nobel Prize in Physics.

Let us now analyze what happened here. What do you suppose Sheldon hoped to achieve at the North Pole? Fame, fortune, ….and of course most important, the scientist expected to prove himself CORRECT, ….a genius among all of the 'common folk' on our planet. What were his three colleagues trying to achieve with their falsified data? They simply wished to maintain a grasp upon their rapidly deteriorating sanity, ….while avoiding possible prosecution for dispatching their colleague to the local carnivores.

But why didn’t the scientists simply keep their lips sealed, publish their exciting breakthrough discovery, ….and let Sheldon enjoy his Nobel Prize? Oh come on, ….everyone out there MUST see the devastation associated with that notion! The alleged ‘breakthrough’ would have been FALSE! It would have defied Sheldon’s chief purpose—to be CORRECT. Further still, …. all four likeable scientists certainly would have been exposed, …as LIARS, ….as the contradictory data rolled in from subsequent research efforts. There is no comedy in that!

The primary problem with the scientists in this ticklish story, ….is that they entered their icy northern adventure, ….with an AGENDA. Sheldon’s agenda was “I will ascend to greatness!” When the North Pole efforts were not accommodating his agenda, ….he became insufferably cranky. Consequently, Sheldon became prone to a common scientific pitfall--known as ‘Observer Bias’.

The other three scientists simply wanted to be part of something cool (a subtle North Pole pun), …..or at least enjoy a once-in-a-lifetime trip and the pursuit of some nifty career possibilities. At first, …they were enjoying the excitement of the endeavor. However, Sheldon spoiled it all with his relentless frustration and poor behavior. So, ….the three friends developed a new AGENDA, ……LIE, …..and confess to Sheldon at a later time.

What is Observer Bias? How does this scientific disease fit in with the Monopolar Expedition, …or better yet, ….with forensic DNA misinterpretations? Upon consulting an internet-based psychology glossary, you will find that: Observer bias occurs when the observers (or researcher team) know the goals of the study or the hypotheses and allow this knowledge to influence their observations during the study

Stop briefly, …..and visualize a forensic analyst who KNOWS a suspect’s DNA profile, BEFORE all of the DNA from the evidence has been typed. Why do you suppose it is a horrible idea for this DNA analyst to permit a 'casual peek’ at this info BEFORE the experimental part of the crime lab work is complete?

Sheldon’s observer bias at the North Pole raised its hideous head when the scientist EXPECTED some sort of magnetic/electrical fluctuations, …..and embraced the data—without question—as soon as the phenomenon was observed. Alternatively, perhaps Sheldon should have OBSERVED how annoyed his friends were with his endless whining, and noted that the electrical fluctuations magically *materialized* right at the peak of their irritation. Even a low level of suspicion on Sheldon’s part might have encouraged him to investigate deeper and expose the devious plot perpetrated by his colleagues.

Before we discuss DNA, let us also touch upon Confirmation Bias. My psychology glossary defines this as follows: Confirmation bias is the tendency to look for information that confirms our existing preconceptions, making it more likely to ignore or neglect data that disconfirms our beliefs.

Sheldon so devoutly wished to uncover data confirming his existing preconceptions, he never noticed how the data seemed to resemble what you might achieve with an ordinary electric can opener. Upon observing the exciting fluctuations, Sheldon did nothing more than continue to collect as much CONFIRMATORY DATA as possible. Perhaps he could have crafted an entirely new set of experiments with potential to debunk his own hypothesis. Perhaps Sheldon could have slipped out into the cold while his friends were resting, and run a few supplemental tests—by himself. If Sheldon had taken such initiatives, he might have prevented the humiliation of retracting his Nobel Prize-bragging e-mail.

Again, having an AGENDA, ….an obsession with confirming one’s scientific hypothesis, …..is a DANGEROUS thing.

I will discuss the effect of Confirmation Bias on forensic DNA interpretations a bit later. However, if you want to jump ahead to a detailed examination of how ‘cognitive bias’ can affect forensic investigations, look no further than a recent PBS Frontline broadcast on this topic. This televised news article, entitled "The Real CSI", aired on Tuesday, April 17, 2012.

Let us now drive home the concept of cognitive bias with examples. Few that I stumbled across on the internet were more hilarious than the following:

She loves me, and there are so many ways that she has shown it. When we signed the divorce papers in her lawyer’s office, she wore my favorite color. When she slapped me at the bar and called me a “handsome pig,” she used the word “handsome” when she didn’t have to. When I called her and she said never to call her again, she first asked me how I was doing and whether my life had changed. When I suggested that we should have children in order to keep our marriage together, she laughed. If she can laugh with me, if she wants to know how I am doing and whether my life has changed, and if she calls me “handsome” and wears my favorite color on special occasions, then I know she really loves me.

I recently stumbled across an outstanding blog site, hosted by journalist, TV producer, media director, David McRaney, entitled "You Are Not So Smart--A Celebration of Self Delusion". In his September 11, 2010 posting, Mr. McRaney summarizes what is traditionally referred to as “The Texas Sharpshooter Fallacy”. I take some exception to this—as I know some Texans—many of my friends live in Texas. Furthermore, it is quite clear that numerous unaccounted for ‘sharpshooters’ are running a-muck in New Mexico, Arizona, and countless other states. McRaney begins by pointing out the following astounding facts:

“Abraham Lincoln and John F. Kennedy were both presidents of the United States, elected 100 years apart.

Both were shot and killed by assassins who were known by three names with 15 letters, John Wilkes Booth and Lee Harvey Oswald, and neither killer would make it to trial.

Spooky, huh? It gets better.

Lincoln had a secretary named Kennedy, and Kennedy had a secretary named Lincoln.

They were both killed on a Friday while sitting next to their wives, Lincoln in the Ford Theater, Kennedy in a Lincoln made by Ford.

Both men were succeeded by a man named Johnson – Andrew for Lincoln and Lyndon for Kennedy. Andrew was born in 1808. Lyndon in 1908.

What are the odds?”

Before you go rushing off, ….shouting from the mountaintops that something truly incredible or sinister has been uncovered here, …..please listen up. McRaney continues:

“When you are befuddled by the Lincoln and Kennedy connections, you neglect to notice Kennedy was Catholic and Lincoln was born Baptist. Kennedy was killed with a rifle, Lincoln with a pistol. Kennedy was shot in Texas, Lincoln in Washington D.C. Kennedy had lustrous auburn hair, while Lincoln wore a haberdasher’s wet dream.”

The ‘CELEBRATION OF SELF-DELUSION’ point of McRaney’s blog article is the Texas, ….(or insert state name of your choice here) Sharpshooter Fallacy—which is derived from an old joke describing a backwoods gentleman who test fires several bullets at an old barn wall. A thought dawns upon the man, ….he grins widely, ….and rushes off to grab some red paint and some white paint.

Not long after that, he leads various friends and neighbors out to the grassy knoll next to his barn (sorry, I couldn’t resist—what with the Kennedy theme already in place). His associates are genuinely amazed at all of the painted targets on the barn wall, ….each with a bullet hole PERFECTLY located in the center of the target. The backwoods gentleman enjoys all of the comments and admiring attention. His delight and contentment persists right up to the point at which one savvy neighbor walks over to the barn and notices that the paint is still a bit sticky, ….and sees that some of the paint has been sloshed into some of the bullet holes, …..and drips of paint are running down the INSIDE wall!

Speaking of sharpshooting liars, say “Hello” to Fred Salem Zain. From 1979 through 1989, this guy was a self-anointed forensic expert with the West Virginia Department of Public Safety Crime Lab. Zain falsified test results in as many as 134 cases. He testified in countless rape and murder cases about analysis he had never performed and scientific data that simply did not exist. Zain presented himself brilliantly in the courtroom. Judges, juries, prosecutors, and defense attorneys had no reason to doubt his testimony. Over the years, the man rose to the position of Chief of Serology.

In 1989, Zain’s fabulous reputation with the prosecutors in West Virginia landed him a promising opportunity as the Chief of Physical Evidence for the Bexar County Medical Examiner's Office in San Antonio, Texas. In his new job, Fred Zain dazzled Bexar County prosecutors with his SHARPSHOOTING testimony—centering on fabricated results. Little or no effort was ever attempted to disqualify this brazen charlatan as an expert witness. Curiously, Zain was not even properly qualified to be doing forensic lab work in the first place. Examination of college transcripts eventually revealed that Zain was a mediocre scholar who had failed organic chemistry. Apparently, no one ever bothered to look at his transcripts prior to elevating the man from position to position.

Fred Zain was well aware that he was operating in a legal system that relied almost entirely on expert testimony from prosecution witnesses. For the last twenty years, this tilted landscape has been gradually shifting toward a more balanced position.

Zain’s inevitable downfall came as consequence of the State of West Virginia v. Glen Woodall. In 1987, Woodall was sentenced to a prison term of 203 to 335 years. At Woodall’s trial, Zain testified that semen samples recovered from the victims were consistent with the defendant. In 1992, DNA testing cleared Woodall of any guilt. Woodall sued the State of West Virginia for false imprisonment, and received a $1 million settlement. This ultimately led to an extraordinary investigation of the entire body of Zain's work—as ordered by the West Virginia Supreme Court.

As a consequence of Fred Zain’s appalling tactics, nine men have since been exonerated in West Virginia. $6.5 million have been paid out by the state of West Virginia as restitution for the wrongful convictions. In Bexar County, Texas cases, Zain testified to conducting tests that his lab was incapable of doing in the first place. Bexar County paid out more than $1.1 million for wrongful convictions at the hands of Zain. The disgraced man died of colon cancer in 2002.

It is important to note that Fred Zain represents a radical example—an individual who became hopelessly intoxicated with his perception of power. The man fell prey to an exaggerated degree of cognitive bias, lost objectivity, and an obliterated sense of humanity. Although there have been few scientists resembling Fred Zain, there are countless others who—to a much lesser degree—struggle to overcome observer effects, falter with their sense of objectivity, and arrive at flawed decisions.

I am personally familiar with a closed case involving analysis of DNA from a commonly ‘handled’ object. That object was located at a crime scene. The investigators *hoped* to find trace DNA from the defendant on that object. The DNA pattern—a mixture from at least two individuals— was found on a sample from the item, as shown below:

Locus 1                               14, 15, 16
Locus 2                               28, 28
Locus 3                               14, 15, 16
Locus 4                               10, 13, 14
Locus 5                               10, 10
Locus 6                               6. 10, 11
Locus 7                              10, 13
Locus 8                              12, 13, 13.2
Locus 9                               5, 6, 8
Gender Locus                    X, Y

The defendant’s DNA profile was as follows:

Locus 1                               16, 18
Locus 2                               28, 30.2
Locus 3                               14, 15
Locus 4                               14, 14
Locus 5                               7, 11
Locus 6                               6. 10
Locus 7                              10, 11
Locus 8                              12.2, 15.2
Locus 9                               5, 9
Gender Locus                    X, Y

The analyst observed that 10 of the defendant’s 18 DNA markers were indeed consistent with the DNA mixture observed on the object from the crime scene. Based on this observation (or observation bias?) the analyst reported that the defendant could not be excluded as a possible contributor to the DNA mixture profile found on the object. Furthermore, the analyst reported that the DNA mixture profile was 570 times more likely to be comprised of DNA from the defendant and an unknown individual, ….rather than from TWO entirely unknown individuals.

Were these conclusions and the corresponding statistics appropriate, ….or a product of cognitive bias? The answer to this question came many months later.

Long before the trial, an associate of the defendant mentioned to the investigators that he recalled being near the object in question, ….days before the crime, ….and *might* have actually touched it. This associate was NOT a suspect. He had a verified alibi for the entire day during which the crime was committed. Regardless of the alibi, the police rightfully collected a biological sample from this associate, and had it processed for his DNA profile.

The associate’s DNA profile was reported as follows:

Locus 1                               14, 16
Locus 2                               28, 28
Locus 3                               15, 16
Locus 4                               10, 13
Locus 5                               10, 10
Locus 6                               6. 10
Locus 7                              10, 13
Locus 8                              13, 13.2
Locus 9                               6, 8
Gender Locus                    X, Y

Virtually ALL of the associate’s DNA markers were present and accounted for within the DNA mixture profile found on the crime scene object. This provided overwhelming support to the associate’s statement to police that he *might* have touched the object.

It is vital to note that only six DNA markers could NOT have come from the associate. Considering that the defendant possesses ONLY THREE of those six DNA markers, it was suddenly quite apparent that an as yet unidentified person (not the defendant) had contributed the remaining DNA component to the mixture.

In subsequent reports, the “…570 times more likely…” analyst understandably avoided further references to the potential importance of the DNA mixture found on this particular crime scene object, ….hmmm, ….fascinating. Perhaps you have heard the old adage, "There are liars, .....DAMN LIARS, .....and statisticians."

The actual DNA results observed by forensic analysts resemble what some of us have seen on an EKG printout. While EKG stands for Elektrokardiogram (the Dutch/German version of the term), DNA data comes to crime lab analysts in the form of an electropherogram printout. Each DNA marker is visualized by the analyst as a ‘heartbeat-like’ peak, which rises above a low, squiggly baseline of ‘background noise’.

When analyzing evidence for DNA, the crime lab occasionally finds an extremely limited quantity of DNA available for typing. With such a limited DNA yield, the data printout often provides only a partial profile, rather than a FULL DNA profile. This is due to the fact that various DNA peaks are simply too small. Thus, the question for the OBSERVING scientist becomes, …. “Just exactly how tall does a REAL DNA peak need to be?”

The DNA peaks are measured in ‘RFUs’. All crime labs are compelled to conduct studies on their DNA profiling instruments/systems to determine an RFU threshold at which each potential DNA marker peak can be trusted as REAL DNA, …...as opposed to a meaningless artifact. Even when there is ONLY a modest amount of DNA, RFU levels for each DNA marker might be in the 100’s, 1000’s, or as much as SEVERAL 1000 RFUs.

Again, when the amount of DNA on a crime scene object is profoundly limited, the peaks might be all the way down near the threshold level for reliable interpretation. Under these circumstances—keeping in mind the ASTONISHING sensitivity of modern day forensic DNA detection systems—accurate, unbiased interpretations are of paramount importance.

Let us say that a crime lab establishes an ‘Analytical Threshold’ at 50 RFUs. The lab might set this threshold due to the fact that, when their instruments are running WITHOUT DNA, the analyst routinely observes a background noise level that fluctuates between perhaps 5 RFUs and 15 RFUs. Within these random events of static/noise, some unexplained spikes—similar to sudden gusts of wind—might actually reach 20 RFUs, 25 RFUs, ….and on rare occasions, much higher. To understand, the occurrence of random noise, spikes, artifacts, etc. one might attempt to learn more about Chaos Theory (Warning: Expect a migrane!).

Larger artifact spikes—often occurring during collection of DNA data from evidence samples—might be attributed to effects that include, but are not limited to: stutter peaks, nonspecific amplification products, pull-up peaks, dye blobs, electrophoretic spikes, or products of static/electrical interferences. Hmm, ....this is reminiscent of  Sheldon's electric can opener-induced fluctuations.

Based on the common observance of such random annoyances, forensic DNA analysts are commanded by crime lab management NOT to bother with analyzing anything below the 50 RFU analytical threshold. Such peaks are likely to be nothing more than spurious, elevated background noise.

Let us also suppose that a crime lab sets a ‘Stochastic Threshold’ of 100 RFUs. The term ‘stochastic’ is defined as ‘random’. Thus, any DNA data observed by an analyst BELOW 100 RFUs is substantially prone to stochastic effects. This means that—due to random, poorly-characterized effects—data below 100 RFUs might be noteworthy. However, the data may be ONLY PART of the DNA landscape at those various loci. The MISSING data is a consequence of the insufficient quantity of DNA present on the original sample collected from the item. Such absences of DNA data points are called 'Allelic Drop-Out Effects'.

The unfortunate reality that only part of the DNA data can be visualized, ….with an unknown portion of the data missing, ….creates a breeding ground for cognitive bias, observer effects, and catastrophic misinterpretations. This reality may represent the single most profound flaw in today's forensic DNA analysis laboratories.

Properly setting crime lab DNA threshold levels makes it quite simple for the analysts. When a tiny, insignificant peak is—let us say—only 32 RFUs, the analysts are commanded to ignore what is most likely nothing more than background noise, ….DO NOT ANALYZE. It is also simple for the analyst when a couple of peaks are—let us say—109 RFUs and 132 RFUs. Although these are substantially small peaks, they DO represent interpretable data.

The real challenge arrives when peaks are between the two thresholds. What the analyst MUST NEVER DO, is resort to anything resembling the following approach to interpretations:

“For the most part, I will ignore those peaks below 50 RFUs. Meanwhile, I will embrace all of the peaks rising above 100 RFUs. However, let me get back to you at a later time with my interpretation of any peaks measuring between 50 RFUs and 99 RFUs. This will give me time to carefully OBSERVE the DNA profiles from various known suspects. I will note which individuals happen to demonstrate consistency patterns with those questionable peaks. In fact, ….once I repeat that comparative exercise numerous times, I might even go back to some 47, 48, and 49 RFU peaks and take those into consideration as ‘something seems to be there’ or ‘that might be close enough to call it GOOD’—depending, of course—on what the suspect DNA profiles look like in the first place.”

Noting which individuals "happen to demonstrate consistency" with the evidentiary DNA fosters a fallacy that parallels 'noting consistencies' between the ENTIRELY UNRELATED Kennedy and Lincoln assassinations.

Ladies and gentlemen, such an interpretive approach to any investigation effectively characterizes the very essence of cognitive bias, backwoods sharp-shooting, and ….JUNK SCIENCE.


Michael J. Spence, Ph.D.

April 20, 2012

Wednesday, March 21, 2012

Railroaded By Forensic Experts: Freed by DNA

In 1992, Kennedy Brewer was convicted and sentenced to death in Noxubee County Mississippi. He was accused of raping and killing a 3-year-old girl. Levon Brooks, was sentenced to life in prison for a separate but similar crime, the rape and murder of another 3-year old child. The Noxubee County Sheriff flippantly stated that a possible DNA match could not be sought on either case due to Mississippi’s lack of a DNA database -- this revelation was news to Mississippi’s crime lab director.

Ten years passed before both men were cleared of any involvement in the crimes. The actual perpetrator, Albert Johnson, confessed to both homicides. To top it off, DNA evidence supported Johnson’s confession. Despite the confession and the new evidence, and in defiance of all common rationality, both men spent an additional 5 years awaiting retrial in local jails. This was due to the fact that Forrest Allgood, the Noxubee County prosecutor, was anxious to bring back his star witnesses, medical examiner Steven Hayne, and forensic odontologist Dr. Michael West.

For two decades, Hayne has been responsible for about 80% of the autopsies conducted in the state of Mississippi. On April 8, 2008, the Innocence Project and the Mississippi Innocence Project collaborated on a formal allegation calling for the revocation of Haynes license to continue practicing medicine. The 1000-page document cited evidence of misconduct and fraudulent testimony that has sent an undetermined number of innocent people to prison, and in some cases, death row.

By many accounts, Michael West is even worse than Hayne. His bite mark testimony has already been disproven by DNA in various instances other than the Brewer and Brooks cases. Consequently, West resigned from professional odontology groups in order to avoid sanctions and possible expulsion.

In an unprecedented move, under pressure from The Innocence Project, Mississippi Attorney General Jim Hood revoked the county’s prosecutorial authority and paved the way for the exonerations of Brewer (February 2008) and Brooks (March 2008). Speaking for The Innocence Project, Peter Neufeld stated, "In two decades of working on these cases, we have never seen a more stark and troubling example of a rush to judgment at the hands of notorious forensic analysts who conspired to commit fraud."


Michael J. Spence, Ph.D.


March 21, 2012

Wednesday, March 14, 2012

Eddie Lowery

In 1981, Eddie Lowery was serving our country as a soldier in the U.S. Army, stationed at Fort Riley, Kansas. He and his wife were raising their 3-year old daughter in the tiny community of Ogden. On the evening of July 26, 1981, Eddie was attending a get-together with friends. When he decided to step out and make a trip to a nearby store, his life was changed forever. The catastrophic events were set into motion when Eddie accidentally hit a parked car. Once the police arrived to assess the incident, Eddie cooperated and spoke with the officers-giving them the details they requested.

When Eddie arrived at the police station the following day, law enforcement officers began questioning him about the rape of an elderly Ogden woman. The police were intrigued that the sexual assault had taken place very close to the time and location of Eddie's mishap with the parked vehicle. Of course, Eddie denied any knowledge or association with the terrible crime. However, investigators insisted that he return the next day for more questioning. “I thought I’d tell them what happened and they’d believe me and I’d go back to my normal life,” Lowery said. The investigators became fixated on Eddie, with their interrogation tactics becoming increasingly aggressive. The officials denied Eddie's request for an attorney and they provided NO opportunity to place any phone calls.

Ultimately, Eddie agreed to take a lie detector test. “I wanted to clear my name. I wanted to help,” he said. Eddie's tormentors violated any and all investigative standards, .....they lied. They told Eddie that he had failed the lie detector test. Convinced that the fender bender in the victim's neighborhood was NOT a coincidence, the police relentlessly badgered and threatened Eddie.

After hours of this torture, the man simply broke down. “I was totally mentally exhausted,” Eddie said. “I didn’t know how to get out of the situation.” To bolster the validity of the ill-gotten, entirely false confession, the investigators began spoon-feeding the facts of the case to their prisoner. Eddie merely repeated the information back to them. He did whatever it took to please them. The interview was NOT recorded. “I beat myself up for years for giving them a false confession,” Lowery said. “They had no other evidence. ... Because I wasn’t there.”

The foundation of Eddie's rape trial was centered entirely on the ridiculously flawed confession. His first trial resulted in a hung jury, but during the second trial the jury convicted him of rape, aggravated battery, and aggravated assault. At age 22, Eddie received a sentence of 11 years to life. He was sent to the Lansing Correctional Facility. During his time in prison, Eddie never had an opportunity to see his daughter. The young girl grew up without him.

On three occasions, Eddie went before his parole board. Each time, he denied involvement in the rape. With the years passing him by, Eddie FINALLY DECIDED TO LIE ABOUT THE RAPE. He told his parole board that he did it. He told them that he was sorry for committing a crime that-IN REALITY-he did not commit and simply could NEVER commit. Pleased with this revelation, the parole board allowed Eddie to advance through the system and complete the required sex offender course, where he had to CONTINUE LYING about his life as a rapist. In 1991, after serving ten years in prison, Eddie was finally paroled. But his life for many years to come had been all but ruined.

Eddie moved to Kansas City, found employment, remarried, and had two children. In 1994, he received a letter informing him that-due to a new law-he was obligated to register as a sex offender. “I assumed everyone would find out. It just put me in a deep depression. It was a humiliating time in my life,” Eddie said.
A few years later, he began hearing about how DNA testing was helping to exonerate the wrongfully convicted.

Eddie was fortunate to secure the assistance of Manhattan, Kansas attorney, Barry Clark, and the New York-based Innocence Project. Through a great deal of harrowing efforts, Barry and Eddie were eventually able to locate the original rape kit, which was still in an envelope in the Riley County, Kansas records vault. “When he (Clark) told me that they found the rape kit, I knew that I was going to be found innocent of this crime,” Eddie said.

As it so often happens, DNA testing provided freedom to yet another innocent individual. In this case, the wrongfully punished man was no longer incarcerated. However, Eddie was able to gain back at least a SEGMENT of that which had been stolen from him years earlier. On April 3, 2003, Eddie was officially declared innocent of the crime--based on the DNA evidence. The cowardly detectives who pressured him into a false confession have never expressed remorse to Eddie Lowery. The cowardly prosecutor, to this day, refuses to admit that Eddie could not have possibly had anything to do with sexually assaulting the 74-year old victim. Sometimes people have to embrace concepts of denial such as this, ....otherwise seeing themselves in the mirror each day is simply too unbearable.

As a consequence of the scientific testing, and the power of the DNA database, law enforcement officials were able to identify Daniel Brewer as the perpetrator of the sexual assault on July 26, 1981 in Ogden, Kansas. Brewer, who was residing in New York, NY, was extradited to Kansas, charged, and convicted of not just one, but TWO sexual assaults.

THE HORRIFYING TRUTH: The law enforcement officials and prosecutors who badgered and convicted Eddie Lowery had become keenly aware of multiple sexual assault incidents in the tiny community of Ogden, Kansas, ....each occurring very close to the time frame when Eddie was brought in and bullied into a confession. What did these geniuses think? That TWO serial rapists were prowling that one microscopic Kansas town at precisely same time? Brilliant. As a consequence of his wrongful conviction and exoneration, Eddie Lowery was justifiably awarded $7.5 million dollars. This burden was carried by the taxpayers of Riley County, Kansas. This is yet another stunning example of the countless misguided efforts to investigate and prosecute crimes.


Michael J. Spence, Ph.D.


March 14, 2012

Thursday, March 8, 2012

Understanding DNA Transfer Events

Previously, I discussed the circumstances that might persuade defense attorneys to explore using a DNA expert. One of these perplexing circumstances is driven—in part—by astonishing advances in the sensitivity of DNA detection. Recent DNA technologies, referred to as LOW COPY NUMBER (LCN) analysis (also called ‘low template’, ‘high sensitivity’, or ‘trace DNA’ analysis) allows crime lab analysts to PUSH DNA DETECTION CAPABILITIES to the point at which useful data is obtained from only 15-20 cells, or perhaps as few as just 1 or 2 cells. Such extremes in testing sensitivity are causing courtroom battles to emerge, due to the mere LIMITATIONS OF SCIENTIFIC ACCEPTANCE. Adding fuel to this fire, these conflicts intensify significantly when DNA expert witnesses fall into the trap I prefer to call the 'touch DNA misnomer'.

Embracing the phrase "touch DNA" on the witness stand, with NO scientific proof that touching ever occurred, is the 2011-2012 idiotic equivalent of yesteryear's 'DNA Fingerprinting misnomer'. STR-based forensic DNA typing technology involves NO examination of fingers. Nor does it relate to latent print examinations, an entirely separate forensic discipline. Why do some individuals insist upon confusing society with terms that simply do not apply?

 

HOW DOES ANY TYPE OF TRACE MATERIAL END UP ON A SPECIFIC SURFACE?


In 1910, Dr. Edmond Locard, professor of forensic medicine at the University of Lyons, France, was the founder of the world's first forensic science lab. This great scientist was also the first forensic scientist to formally emphasize the importance of transfer events in the investigation of crimes.

Dr. Locard's incredible intuition evolved into the time-tested Locard Exchange Principal, stating that "Every contact leaves a trace." Locard's principal became universally accepted over forty years BEFORE James Watson and Francis Crick proposed the first accurate model of the DNA double helix. The exchange principal was also widely embraced over seventy years BEFORE Colin Pitchfork became the first person to be identified and convicted of a crime, using the power of DNA typing.

As an insult to the celebrated history of Dr. Locard's principal, *some* modern day prosecutors—with the support of their crime lab analysts—attempt to downplay the plausibility of DNA transfer events. Despite the fact that the crime scenes are crawling with CSI's who enthusiastically center their efforts on Locard's teachings, some courtroom comedians are allowed to drone on with their ridiculous folly of reasoning. JURORS PLEASE TAKE NOTE: TRACE MATERIAL EXCHANGE EVENTS ARE NOT THE PRODUCT OF OVERACTIVE SCIENTIFIC IMAGINATIONS.

The ludicrous efforts to downplay Locard are readily invalidated. EVERY WINTER—new strains of common cold viruses and influenza viruses succeed with their inevitable campaigns of terror throughout earth's human population. How do these prosecutors and their supporting scientists (and I am using the term ‘scientists’ loosely) suppose these viruses are so swiftly spread from human to human?

During a particularly frosty stretch of weather, look around, visit various homes, take a stroll through the local mall. Nasal cavities are draining, infected individuals are coughing and sneezing. Crumpled up facial tissues are strewn EVERYWHERE. Those tissues came from the people who are actually considerate enough to use a Kleenex every now and then—rather than their shirt sleeves OR THEIR HANDS.

Trillions of viral particles are spread by the actions of the infected, ….to door handles, telephones, computer keyboards, car keys, steering wheels, stairway railings, currency, vending machines, TV remote controls, pens, pencils, clothing, bedding, the list is endless. Each year, we are BEGGED by the Centers for Disease Control to “Wash your hands!” Any healthy person, who fails to wash his hands, and makes the mistake of rubbing his own tired eyes, ….well, ….you do the math. It takes a number of days for viral particles to establish a foothold in a human respiratory system.

DNA differs very little from viruses. Yes, our genetic molecules are much more friendly, and not very invasive. DNA causes no sore throats, no runny noses, and no coughs. Beyond that, DNA and viruses are quite similar in that they are both submicroscopic clumps of matter. Transfer events DO occur with BOTH forms of matter. Please do not let any courtroom snake oil representatives succeed in convincing you otherwise.

Today's state-of-the-art DNA detection technology can decipher a full DNA profile from less than one BILLIONTH of a gram of DNA. One way to grasp such extraordinarily tiny amounts of DNA is to visualize the mass of material in a standard packet of artificial sweetener. These packets contain one gram of material. Imagine setting aside 1/1000th of a single packet and disposing of the remaining 999 parts. The spec of powder set aside would weigh one milligram. Now imagine setting aside 1/1000th of this milligram and discarding the remainder. You now have one microgram of material (which is 1/1 millionth of the original sweetener packet). This amount of material cannot be clearly seen without the use of a microscope. By some means, you must now set aside 1/1000th of your microgram of artificial sweetener-this is one nanogram, or 1/1 BILLIONTH of the original starting material. One nanogram of DNA is PLENTY of genetic material for generating a FULL DNA profile. The astonishing sensitivity of forensic DNA typing technology does not diminish the fact that we are indeed working with a profoundly tiny mass of DNA.

Scientific debates focusing on the mechanisms of casual/incidental transfer events, involving such tiny amounts of DNA, are far from settled. In December 2010, some of the world's most renowned authorities on forensic trace DNA (Roland Oorschot, Kaye Ballantyne, and R. John Mitchell), published a REVIEW in Investigative Genetics. Quoting these authors directly from the "Transfer Issues" section of the review:

"Greater effort needs to be made by police/crime investigators to investigate how a DNA sample arrived at the location where it was found, as well as by scientists to better understand the impact of activities on the relative amounts of DNA from particular sources at a crime scene. In some instances, it is possible to derive the chain of events that led to a trace DNA sample being present at a crime scene - for example, prior visits to the scene or the known use of an item. Awareness of these variables, and their impact on transfer events, will assist in weighting the likelihood of proposed alternative scenarios." 

In 2010, Allan Jamieson and Georgina Meakin of The Forensic Institute (Glasgow, UK), published an article in The Barrister Magazine entitled: "EXPERIENCE IS THE NAME THAT EVERYONE GIVES TO THEIR MISTAKES"

The following is a quote from this article:

"The examination of evidence for handler DNA can reveal DNA of people who have, or have not, handled the item; the stronger profile may, or may not, be the person who last handled the item; An inference of direct contact between an individual and the item may or may not be supportable, depending on the circumstances of the case. In other words, we did not know enough to make any sensible scientific judgements as to how DNA came to be on an item." 

Later, the article continues:

"Frequently, the underlying hypothesis is that touching, or direct contact, is a more likely scientific explanation for the finding of a DNA profile on an item than indirect contact. This to the extent that it may be described as providing ‘extremely strong’ support for direct versus indirect transfer.  In our view, such an opinion on DNA transfer is not supportable based on case experience or on the available scientific research."

Finally, a 2009 article in Law Officer (a journal for police and law enforcement) is entitled: 'TRANSFER THEORY IN FORENSIC DNA ANALYSIS'. The author, Suzanna Ryan, arrived at the conclusion:

"Obviously, the inadvertent transfer of DNA is an area that should be further studied. Since so many of the available journal articles present conflicting information, more work is needed to see how likely it is to both transfer and detect DNA in a secondary or even a tertiary fashion, especially considering the sensitivity of modern forensic DNA analysis."

It is vital to keep in mind that the average adult human sheds approximately 36,000 skin cells every 60 seconds. This number varies broadly among individuals, as there are profound differences between those who can be characterized as 'good shedders', and others who are 'poor shedders'.

A single drop of saliva, expelled during a cough or a sneeze, will contain approximately 500,000 salivary epithelial cells. Forensic Biologists can attest to the fact that 500 to 10,000 nanograms of DNA are routinely recovered during collection of a single oral swab. Once again, recall that ONLY ONE NANOGRAM is optimal for generating a complete DNA profile. This mass of DNA can be readily extracted from as few as 200 cells. This tiny number of cells could sit-nearly invisible-upon the very tip of a toothpick.

How many falsely accused individuals have been wrongfully imprisoned as a consequence of a few hundred cells finding their way to an incriminating location?


Michael J. Spence, Ph.D.


March 7, 2012

Thursday, March 1, 2012

The Norfolk Four

About a year ago, I crafted an article on my website, listed under "Most Fascinating Criminal Cases". This piece centered on The Norfolk Four, ....and what appeared to me as one of the worst ever U.S. cases of false confessions. The case also seemed to be one of the worst instances EVER of a reckless disregard for investigative responsibility and adherence to logic.

"The Confessions", aired on PBS November 9, 2010.

http://www.pbs.org/wgbh/pages/frontline/the-confessions/

This case involved the investigation and conviction of four men -- current and former sailors in the U.S. Navy -- for the 1997 rape/homicide of a young woman in Norfolk, Virginia. Frontline’s coverage of the “Norfolk Four” revealed malicious, high-pressure police interrogation techniques -- the threat of the death penalty, sleep deprivation, and intimidation. The outrageous, irresponsible tactics caused each of the men to confess, despite the glaring lack of any evidence linking any of them to the crime. When the dust settled, eight men had been charged. Five of those men had been coerced into confessions, .....four of them false. Most baffling, .......only ONE DNA profile had been recovered from the case evidence.

Twenty-five-year-old Danial Williams, married for 11 days, was the first to be arrested for the rape/murder of Michelle Bosko. Williams attempted to explain to FRONTLINE how he came to confess after a brutal, humiliating interrogation that spanned ELEVEN HOURS.

When Williams FINALLY confessed, the details were not consistent with the physical evidence. Instead of doubting the validity of the confession, investigators badgered Williams into a ‘revised’ confession that presented a 'better fit' to the crime scene evidence.

Williams' DNA failed to match the DNA observed from Ms. Bosko's sexual assault kit, Of course, this pesky little DNA hiccup did not create any doubt among the investigators. Instead, they simply addressed the glitch by hauling in Williams' roommate, Joe Dick. Yes, the investigators launched yet another interrogation.

Dick's interrogation was conducted by one of Norfolk's most formidable detectives, Robert Glenn Ford, who had a reputation for getting confessions. Utlimately, Ford delivered a second confession, ......from a second suspect. Detective Ford was SO formidable, Joe Dick actually began to believe in his own guilt. Dick proceeded to implicate another sailor, Eric Wilson. Another startling development, .....the police eventually hammered out their THIRD confession.

At some point, one might expect law enforcement officials to view three confessions (with ONE DNA profile) as a sufficient number of defendants. No, the police relentlessly plowed ahead. In the end, four men confessed to the rape and murder of Michelle Bosko. Another three men were arrested before an eighth man, a convicted rapist named Omar Ballard, was found to be the only DNA match with the sexual assault evidence.

Ballard confessed to the rape and murder of Michelle Bosko. Furthermore, Ballard made it clear that he did it alone -- a statement that was consistent with the physical evidence uncovered at the crime scene. However, with a significant percentage of the U.S. Navy already incarcerated for this ONE crime, the police and prosecution refused to change course. Instead, they presented a new theory of the crime.

The investigative team presented their theory that seven guys were pacing around the parking lot. The group of men were contemplating how they might break into an apartment in order to rape and murder a young woman. At that moment, Omar Ballard happened to be strolling by. The aspiring rapists/murderers decided to approach Ballard -- a complete stranger -- and inquire if he had any thoughts on the matter. Before long, all eight men managed to squeeze into the tiny apartment and proceeded with their brutal plan.

Of course, NO witnesses ever came forward, to corroborate the collection of men in the parking lot. Nobody ever reported the wild group, .....forcing their way into the apartment. And lastly, not a soul remembered hearing a disturbance consistent with such a series of events involving so many people. From an initial theory of a single assailant, namely Danial Williams, the prosecution theory had now evolved into a profoundly improbable tale. Such a scenario might as well have been cooked up by a babbling mental patient.

All four sailors are now out of prison -- one served his sentence, and the other three were granted conditional pardons, after some 11 years in prison. But the men were not exonerated as felons or sex offenders.

Imagine everyone's surprise when, in the summer of 2010, Detective Robert Glenn Ford was indicted for extorting money from defendants in exchange for getting them favorable treatment. He was tried in U.S. District Court in Norfolk and took the stand in his own defense. On October 27, 2010, Ford was found guilty on two of four extortion charges and one charge of lying to the FBI.
 
Michael J. Spence, Ph.D.


February 29, 2012

Wednesday, February 22, 2012

The Tim Masters Case: Colorado

In Fort Collins, Colorado, a passing bicyclist discovered the sexually mutilated body of Peggy Hettrick. The woman’s body was near the home of 15-year-old Tim Masters. Since February 12, 1987 – the day after the killing – Masters insisted that he did not commit the crime. When police found gruesome sketches that had been drawn by Masters, they focused the next several years of their investigative efforts upon the teenager. In 1999, twelve years after Hettrick’s death, these efforts finally saw Masters convicted of the homicide and sentenced to life in prison. This was despite the fact that no physical evidence was ever found that tied Masters to the crime. I'm surprised that the authorities did not simply execute the 15-year-old boy on the spot-the minute they discovered the ghastly sketches. Who needs physical evidence anyway?

In 1995, eight years after the homicide and four years prior to the Masters conviction, Fort Collins police investigated Dr. Richard Hammond, a 44-year-old eye surgeon. In Dr. Hammond’s home, they found sophisticated cameras and an enormous collection of pornography. At the doctor’s home, as well as at his medical office, police found countless homemade videos. These videos included precisely detailed shots zooming into the vaginal areas of females using the downstairs toilet in the Hammond home as well as the patient toilet at his medical office. The doctor was using carefully controlled, cleverly concealed cameras. His unsuspecting victims ranged from girls in their early teens to women in their forties. Other hidden cameras captured women's breasts as they stood at the restroom mirrors. Police also discovered a storage unit Dr. Hammond was renting that contained thousands of pornographic materials and containers filled with sex toys and jewelry. He also had a secret bank account and a secret apartment. Dr. Hammond was arrested on sexual-exploitation charges. Days later, the man committed suicide in a Denver hotel room using an IV drip filled with cyanide.

Although Dr. Hammond was often known to disappear for hours and he frequently left town on mysterious trips, his wife had no knowledge of her husband’s secret identity. His friends, stunned by the news of the doctor’s arrest, described him as extremely polite and professional. His partner and his colleagues, equally floored by the news, had always admired Hammond’s specialized expertise with a scalpel.

Detective Dave Mickelson of the Fort Collins Police Department was particularly alarmed by two facts. First, the Hammond home was located just 100 yards east of where Peggy Hettrick's body had been found eight years earlier. Second, the woman’s body had been skillfully carved up by her killer, with special focus on the intricate vaginal parts and the nipples of her breasts. These facts, taken together with Dr. Hammond’s obsession with female genitalia and breasts, and his surgical expertise, prompted Detective Mickelson to approach his superiors.

Despite pleas from the detective for a thorough investigation of Hammond as a suspect in the Hettrick homicide, his concerns were promptly dismissed. All of the evidence that was seized during the investigation was destroyed within six months after Dr. Hammond's arrest and subsequent suicide. Four years later, Tim Masters was tried and sent to prison for murder.

In a January 2008 news conference, Colorado special prosecutor, Don Quick, announced that a defense-commissioned DNA test pointed not to Tim Masters, but to an unknown male. The validity of the DNA test was supported by the Colorado Bureau of Investigation. Quick filed a motion citing four instances in which police and prosecutors should have provided evidence to Masters' original defense team. When Quick requested for the conviction to be vacated, Judge Joseph Weatherby promptly agreed. Tim Masters, at the age of 36, was released from prison.

Based on the clear instances of misconduct, Fort Collins District Attorney Larry Abrahamson has vowed to review all "contested convictions" in which advances in DNA testing may prove useful. Abrahamson also said that he has met with the Fort Collins police chief and his investigators to discuss the importance of information flow between law enforcement authorities, prosecutors, and counsel for the defense. 


Michael J. Spence, Ph.D.


February 22, 2012