THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, June 26, 1995 TAG: 9506260026
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
LENGTH: Long : 162 lines
The DNA evidence in the rape trial of Antonio Hodges last week was so strong that prosecutors felt certain of a conviction. The odds were astronomical. DNA tests cemented Hodges to the scene.
They were wrong.
Hodges, from Middlesex County, was charged with raping a Deltaville woman in her home two years ago. DNA samples taken from Hodges matched evidence taken from the woman on the night of the rape. The odds of such a match ranged from 1-in-13 billion to 1-in-58 billion, a prosecution expert testified.
Yet for one of the first times that experts can recall in Virginia courts, the DNA evidence wasn't enough. On Tuesday, the jury said it was deadlocked. Prosecutors now must decide whether to drop the charge.
Last week's trial, held in Norfolk because of pretrial publicity in Middlesex County, where the crime occurred, had a radically different conclusion than Hodges' 1994 trial for another rape. Then, he was convicted and sentenced to 70 years.
What happened? In both cases, DNA was the key. Both arrests resulted from DNA ``fingerprinting,'' in whih DNA extracted from Hodges' blood matched DNA evidence taken from the victims. Both trials were duels between experts, each attacking or defending the credibility of DNA fingerprinting.
The difference, said Middlesex County Commonwealth's Attorney James Ward, was that the victim in last week's trial made inconsistent statements. ``I don't think there was any question about the DNA,'' Ward said.
But Hodges' attorney, Jerry C. Lyell of Arlington, disagreed. ``DNA fingerprinting was on trial as much as my client,'' he said. ``Everything about it - statistical methods, laboratory techniques, ways of assuring quality control. This hung jury is the first time in the state there's been a break in the myth of DNA's infallibility.''
DNA is on trial in Virginia, the first state to develop DNA fingerprinting as a crime-fighting tool.
In theory, nothing is more individual than a person's DNA - and this makes its fingerprinting a powerful weapon against crime. The tests rely on the distinctive pattern of a person's deoxyribonucleic acid, the genetic material found in every cell. By examining strands of DNA in cells from a smear of blood or semen stain found at a crime scene, scientists say they can tell with near certainty whether a suspect committed the crime. This evidence can be overwhelmingly convincing, swamping all other evidence - even that of innocence or inconsistency.
One of the most well-known local cases occurred last year, when a jury found serial rapist Kerri Charity guilty of 11 felonies in four sexual assaults at or near the Oceanfront. In each cases, the women did not get a good look at their assailant. But DNA evidence matched Charity's genetic code - and Charity was sentenced to seven life terms plus 80 years.
Still, DNA testing is neither infallible nor unassailable, court records and scientific articles show. Over the past five years, defense attorneys have used scientists' doubts about the accuracy of the tests in court, usually unsuccessfully. The O.J. Simpson trial, where the verdict may rest largely on DNA evidence, has publicized the debate.
States have adopted different standards for what DNA evidence is admissible.
In California and other states, courts have refused to admit DNA evidence that says a suspect is guilty. Virginia regularly allows evidence of guilt into trial. All states allow evidence showing a suspect is innocent.
In 1992, the debate prompted a controversial report by the National Research Council, a Washington-based scientific group. The report endorsed DNA fingerprinting in criminal cases while finding problems with the procedure.
One major finding was that there were no standards for the testing and statistical methods used by government and private labs.
The report recommended a number of safeguards, including accreditation for all labs and technicians. It also suggested how to interpret statistics on the frequency of various genetic traits.
Yet none of the recommendations has been implemented on a national level.
Legal arguments over the use of DNA evidence focus on a few issues. In the Hodges trial, defense attorney Lyell threw them all at the jury.
``The issues are pretty complicated - the problem is to present them in a way a jury will understand,'' Lyell said, acknowledging that one or two jurors dozed through the more arcane theoretical arguments. ``Still, if something catches the attention of at least one juror, you're in.''
First, Lyell and other critics say, the DNA extraction itself can be flawed, such as by accidentally contaminating or mislabeling samples or misreading results. (see graphic).
Second, critics say there are false assumptions in interpreting DNA lab results.
The mistake, Lyell argued to jurors, is in assuming that the databank against which a sample is matched represents a random population. Geneticists are beginning to find that extensive similarities can occur in racial groups. These ``subgroups'' may have traditions that do not include random mating, increasing the odds that matches will occur.
The correct odds for a match may be one-in-thousands instead of one-in-billions as juries are told, critics say. Yet other experts, like Dr. Paul B. Ferrara, director of the state Division of Forensic Science, have called the argument nothing more than a ``mathematical exercise.''
Notwithstanding the arguments, Virginia has based life-or-death decisions on DNA fingerprinting. State courts have ruled the evidence is even strong enough to support a death sentence.
In April 1994, ``Southside Strangler'' Timothy W. Spencer died in the state's electric chair after DNA evidence linked him to the 1987 murder of a 35-year-old woman in Richmond. Spencer was the first person executed in the United States whose conviction was based almost solely on DNA evidence.
Before his execution, Spencer's lawyers appealed to the courts for new DNA tests, using some of the same arguments later used by Lyell. The appeal was denied.
Yet convictions, like Spencer's and Charity's, are not the only result of DNA testing. In October 1994, Edward Honaker was released from prison after tests performed by a private lab ruled him out as the assailant in a 1984 rape on the Blue Ridge Parkway. Honaker, sentenced to three life terms, served 10 years before he was pardoned by Gov. George Allen.
Bids for freedom based on new DNA evidence are not always as successful as Honaker's. Yet they are always controversial:
Joseph Roger O'Dell III, sentenced to death in 1986 for the slaying of a Virginia Beach secretary, is seeking a new hearing in federal court so that new DNA evidence can be presented to a judge.
When O'Dell was convicted in 1986, a state forensics expert used blood on O'Dell's shirt, jacket and jeans to link him to the slaying of 44-year-old Helen C. Schartner. Subsequent DNA tests proved the blood did not come from Schartner, O'Dell's supporters say.
Yet O'Dell's DNA findings are controversial. The report by a private lab, Lifecodes Corp. of New York, said that blood on the shirt was not the victim's. The jeans were not tested; the report does not say why.
But DNA from blood on the jacket did match the victim's, the lab said. Odds against such a match were 1 in 166,000, it said. A federal judge in Richmond ruled this test was inconclusive after experts testified the procedure was flawed.
Days before his execution in May 1992, Roger Coleman was granted a DNA analysis of semen taken from the woman he was convicted of raping and killing. Coleman's own lab concluded that the genetic markers of the rapist matched Coleman's - a match found in only 2 percent of the population, the lab said. These results swayed then-Gov. L. Douglas Wilder to deny Coleman's clemency plea.
What Coleman's lawyers didn't understand was that the lab had run a PCR test, the less-detailed process used to exclude, not include, people as suspects. The lawyers also learned the lab had made as many as one in four ``false matches'' in tests designed to check quality control.
``Those were the early days of DNA fingerprinting,'' one of Coleman's lawyers later said. ``When we knew what this meant, it was too late. Roger Coleman was dead.'' ILLUSTRATION: Photos
A jury deadlocked in the rape trial of Antonio Hodges, despite DNA
evidence,
Roger Coleman was denied clemency based on a DNA test.
Kerri Charity was convicted of rape based on DNA evidence.
Edward Honaker was freed after tests ruled him out as a rape
suspect.
DNA tests linked Timothy W. Spencer to the murder of a woman.
Joseph Roger O'Dell III is seeking a hearing to present DNA
evidence.
Graphic by Robert D. Voros, Staff
Creating a DNA "Finderprint"
For complete information see microfilm
KEYWORDS: DNA TESTING by CNB