Forensic DNA, the Liberator

By CRG staff – interview with Peter Neufeld, co-founder and co-director of the Innocence Project

The Innocence Project is a U.S.-based organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system. Peter Neufeld co-founded the Innocence Project with Barry Scheck in 1992.

GeneWatch: What role do forensic DNA databases play in the Innocence Project’s work?

Peter Neufeld: They play an interesting role. There are occasions where we get a DNA test result on a material piece of evidence from a crime scene which would exclude our client, but prosecutors still resist motions to vacate the conviction. In some of those cases, what then tipped the balance in our favor was that the profile of the unknown individual [whose DNA was found at the crime scene] was run through a convicted offender database and a hit was secured. Once we were able to identify the source of the semen or the blood as somebody who had a criminal record and who had no explanation for his DNA being there, we were then able to secure the vacation of the conviction for our client.

GW: Many of the proponents of the expansion of forensic DNA databases have pointed to the usefulness of DNA as a tool for exonerating those who have been wrongly convicted, and some actually use the Innocence Project’s work as an argument in favor of expanding forensic databases. Would you endorse that?

PN: I wouldn’t do a blanket endorsement. I think what we have to do in all these situations is weight the advantages and downsides, and it depends on the expansion. For instance, expanding the database to other convicted felons, for instance, is a reasonable tradeoff because the people have been convicted of a felony.

We would not be in favor of expanding the database to arrestees. We certainly would not be in favor of the kind of gray-area databases that have been established, for instance throughout New York, where local medical examiners’ offices or crime laboratories create their own databases outside the state system-which includes profiles of people who volunteered to give DNA so they could be excluded [from an investigation]. Those people should not be included in databases, but expanding it to other felons seems like a reasonable compromise.

GW: What about familial searching-running evidence from a crime scene against a database and looking for near-matches that could be family members of the source? What kind of a role do you see that playing?

PN: There hasn’t been a lot of familial searching-yet. There has been a lot of talk about it. The Innocence Project itself does not have a position at this time on familial searching. I can tell you that personally, I’m very worried about it. I see it as a further encroachment on privacy and civil liberties, and with very little bang for the buck.

There’s another issue we have to think about which is just over the hilltop: namely, these phenotype profiles that the FBI is trying to develop. Let’s say there’s blood found at a crime scene and they don’t get a hit in the database, but they can determine through looking at a whole bunch of markers that there’s a higher probability that the source of the blood has blond hair, for instance, or has blue eyes, or some other physical attribute. Then they will try to use this information to focus on a particular subpopulation in the community. That is something that could be extremely dangerous and which people should be vigilant about.

GW: It sounds like something that could lead to more people being wrongly convicted.

PN: Well, not necessarily convicted, but we certainly will see a situation where lots of completely innocent people will be harassed by police. They could be stalked, they could have their reputations compromised; all kinds of things could happen. For instance, there was a serial murder investigation in Louisiana where certain people declined to have their DNA profiled. The prosecution went to court to seek an order [to obtain their DNA], their names and addresses were put in local newspapers, and they were the object of all kinds of rumors. They turned out to be completely innocent, but that’s what happened.

There are all those kinds of problems lurking out there, and people have a tendency not to take them seriously enough, thinking, “Well, it’s all about public safety, no one has anything to fear.” When folks get lackadaisical like that, that’s when there can be terrible adverse consequences for the whole community.

GW: In proving someone’s innocence, particularly someone who has already been convicted, how essential is it to locate the perpetrator?

PN: Well, you know, it shouldn’t be. When there’s a rape of a 90-year old woman and semen is recovered, the fact that our client is excluded [on the basis of the DNA evidence] should be enough; but lately we’ve seen an uptick in prosecutors who are doing everything they can to fight a DNA exclusion, which is a presumptive proof of innocence. In some of those cases, it takes a CODIS hit to carry the day. Actually, in some cases even a CODIS hit isn’t enough. We have two cases right now in Illinois, for instance, one where five kids confessed and one where three kids confessed, 19 and 16 years ago. In those two cases, we’ve identified the real perpetrator through DNA typing, and nonetheless the prosecutors are taking the absurd position that the confessions are reliable, all these kids are guilty, and in one case the convicted rapist, who is 25 years older than the 14-year old girl who was killed, happened to be a necrophiliac. So once you start seeing those kinds of really offensive inculpatory attempts to explain away the DNA exclusion, you realize that CODIS hits are going to be very, very useful-although not always conclusive. They may be conclusive in the eyes of the public and rational thinking people, but they’re not necessarily conclusive in the eyes of a recalcitrant prosecutor.

GW: One of the reasons I asked that question is that when people argue that forensic DNA databases should be expanded in order to help exonerate people who were wrongly convicted, it seems that argument often has less to do with the work that the Innocence Project does than just saying, “The way we will help people who have been wrongly convicted is by finding the actual perpetrator.” So I was wondering: Is that even enough in itself?

PN: It’s not just that. You’re right in the sense that the quantum of evidence that I would deem sufficient to exonerate somebody may be less than what a prosecutor will require before he throws in the towel. Unfortunately, there are a number of judges who will be very deferential to the assertions and absurd speculative theories of certain prosecutors, for a variety of political reasons. We simply have to be aware of that, and we have to be able to respond. Our response takes two different directions: One, we will try to generate additional proof of innocence wherever possible, and sometimes that entails trying to identify the real perpetrator. At the same time, we will shine a bright light on the kind of absurd speculations of prosecutors trying to defend a conviction that should be immediately overturned.

Let’s get one thing straight, though: There’s no question that there would be fewer wrongful convictions if there was a universal DNA databank. The reason we don’t have a universal DNA databank is that probably a majority of the population is strongly opposed to it for privacy and civil liberties reasons-not unjustifiably. Consequently, since there isn’t a critical mass to support that kind of police action, the police are trying to do what they can to generate databases of more vulnerable populations. If you create an arrestee database, there’s going to be a disproportionate number of people of color in that database. They may not have the same clout, electorally speaking, as upper middle class white people who don’t want to have their DNA on file.

© 2014 Forensic Genetics Policy Initiative