Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, July 12, 1994 TAG: 9408030018
SECTION: VIRGINIA PAGE: B1 EDITION: STATE
SOURCE: Newport News Daily Press
DATELINE: SALUDA LENGTH: Long
While the world waits for DNA evidence to play a major role in the California murder trial of O.J. Simpson, DNA itself will be on trial in Virginia, the state that first developed genetic analysis as a crime-fighting tool.
In Saluda, six of the nation's biggest guns in the relatively new DNA field are facing each other - three on each side - in the case of Antonio Hodges of Urbanna, who is charged with raping two women at knife point after breaking into their homes.
Neither woman could identify her attacker. In each case, the key evidence against Hodges, 29, is a laboratory analysis the prosecution says matches the genetic code of biological substances found on the victims with samples taken from Hodges.
At a hearing in March, a state forensic scientist testified that in one of the cases the odds of someone else's genetic code matching Hodges' was one in millions; in the other, one in billions.
A jury trial for Hodges is set to begin next week.
The stage is set for perhaps a landmark test of DNA evidence by the 9th Judicial Circuit, which has ordered the state to pay for two expert witnesses and an attorney with experience in DNA cases for each side.
Working with Hodges' lawyer, George U. Brooks III of Williamsburg, are Jerry C. Lyell of Arlington, a lawyer and former chemist; Peter D'Eustachio, a molecular biologist at New York University; and Lawrence Mueller, a statistician and population geneticist at the University of California.
Assisting Middlesex County Commonwealth's Attorney James H. Ward Jr. on the prosecution side are Arthur Karp, chief deputy commonwealth's attorney for Arlington County; Scott Diehl, a molecular biologist with the National Institutes of Health; and Bruce Budowle, the FBI's top DNA expert.
The defense team's request to bar admission of the DNA evidence led to the pre-trial hearing Friday. As it began at 9:30 a.m., it looked to be a daylong war of words among people in suits armed with charts and advanced college degrees. Instead, it was over in about an hour with only the briefest technical discussion.
Circuit Judge Thomas N. Nance, filling in for Judge John M. Folkes, who is ill, quickly squelched the defense's argument about admissibility of DNA evidence by reading aloud part of a sentence from the Code of Virginia. ``This tells me the General Assembly has already determined this is a reliable scientific technique,'' he said.
``This is not an assault on DNA,'' said Lyell of Arlington. Lyell said he was seeking to limit the way prosecutors could present DNA information, particularly statistics, to the jury next week.
``So he's agreeing DNA is admissible?'' a surprised-sounding Karp asked Nance.
The judge said yes, that the defense was just trying to ``handcuff'' the prosecution by agreeing ahead of time who could say what about DNA.
Nance refused to do that, telling the attorneys to lay out their cases to the jurors and let them decide whose experts to believe.
Just what is DNA anyway, and why all the fuss?
The initials stand for deoxyribonucleic acid, which is the genetic code that distinguishes individuals from one another. This mini-blueprint of the person is contained inside every cell.
Scientists are divided as to how distinctive each code is - some say that allowing for identical twins, who share the same genetic code, DNA is as unique as fingerprints, that no two are alike.
Others say the science is too new to be sure of that, that not enough data has been accumulated to prove this mathematically. Lyell, who worked with DNA in labs before becoming a lawyer, and who is on the Hodges defense team, is of the skeptical school.
Paul B. Ferrara, on the other hand, believes DNA identification is solid enough to support a death sentence. This was done with Timothy W. Spencer, known as the Southside Strangler, who died in Virginia's electric chair April 27.
Spencer was the first person executed in the United States whose conviction was based almost solely on DNA evidence.
Ferrara, who is the director of Virginia's Division of Forensic Science, started the state's forensic DNA lab in 1989. The lab spawned the nation's first DNA databank for use in fighting violent crime.
The databank, fed at the rate of about 2,000 DNA samples a year from everyone in the state who is convicted of a felony, has reached about 85,000 samples.
Ferrara said DNA analyses have been made of about 3,000 of those samples as a comparison base for criminal cases - both future and past.
He said the lab is developing DNA profiles primarily of sex offenders, because of the likelihood they will repeat their crimes and because evidence from sex crime scenes often is more available.
This databank scored its first ``cold hit'' with the arrest of a paroled sex offender about a year after an elderly woman was beaten, raped and robbed in her Prince William County home. The only evidence was a small seminal fluid stain on an article of her clothing.
The suspect, Jackie Crumity, was convicted last month after DNA contained in the stain was found to match a DNA sample taken from Crumity when he was in prison. He had been released several months before the attack in Prince William.
Crumity's conviction, said Ferrara, ``established the efficacy of the whole concept'' of forensic DNA. His staff of about 30 DNA lab technicians has been getting about 3,000 criminal cases a year and has a backlog of several hundred cases.
``We could use twice as many'' technicians, he said, but pointed out that another delay factor is the length of the analysis procedure - from two to four months. That's for the in-depth analysis that produces the matches that have astronomical odds.
``Saliva on a cigarette butt or on the back of a postage stamp is enough,'' Ferrara said.
Lyell and others who challenge DNA evidence in court warn of mistakes that can easily be made in laboratories, such as mislabeling samples. But their main focus has been on what they claim are false assumptions in the interpretation of DNA test results.
The fatal mistake is in assuming that a databank against which samples are matched represents a random population, merely because the samples were taken randomly.
But because general populations are made up of subgroups whose traditions may not include random mating, the odds of genetic matches are greater in those groups, which can skew the overall odds, the critics argue.
Instead of a suspect's DNA match with crime-scene evidence being one in a billion, says Lyell, it may more reasonably - and correct mathematically - be one in several thousand.
Lyell, who has yet to win a DNA-based case but who believes his arguments in the Saluda case will be his strongest, says that using odds in the billions in any DNA analysis is bad math, if only because there's not enough data available.
``You're starting with very small numbers and projecting them out into the astronomical. There's no way to prove those numbers are reliable,'' he said.
by CNB