Scientists Reveal DNA Evidence Can Be Faked - And It's Not Hard to Do: the implications upon Florida criminal defense

Pretty soon, looks like we're all going to know the name Dan Frumkin. Who's he?

Dan Frumkin is the author of an article in the respected journal Forensic Science International: Genetics where he writes that DNA evidence can be created in a lab - TOTALLY FABRICATED - and he warns that the real possibility of DNA evidence being faked is not being sufficiently recognized in today's world, where everyone has been considering DNA evidence as being rock-solid, dependable proof of guilt or innocence.

Together with his team of forensic scientists, working in laboratories located in Tel Aviv, Israel, Dan Frumkin has backed up his warnings with concrete demonstrations of what can be done: not only can someone's blood and saliva samples be twisted into a replica of someone else's (think anonymous donor samples altered into that of pending criminal defendant), but even more terrifying, a mere review of a DNA file on a computerized database gives these scientists sufficient information to create DNA evidence that replicates that file - without ever touching any human blood or saliva at all.

They went further.  They also demonstrated how this bogus DNA can easily be planted at crime scenes -- either on human tissue or on inanimate, touched surfaces.   They actually did all this --- and then Frumkin wrote this paper to warn the world that DNA evidence isn't nearly as reliable as universally assumed.

How hard is this to do?

Not hard at all. According to Dan Frumnkin, any Average Joe with some basic science know-how under his or her belt and access to some simple lab equipment can cook up "practically unlimited amounts" of phony DNA.

Now, let's add the phrase "prosecutorial misconduct" to the mix.

Long ago, the United States Supreme Court was confronted with overzealous prosecutors monkeying with cases to get a conviction, and warned us all that prosecutors should "prosecute with eagerness and vigor" but may not use "improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78 (1935).

That warning didn't stop things.  There are countless cases of prosecutorial misconduct on file in this country today -- fingerprints mysteriously placed at crime scenes, guns or weapons dropped by bodies, documents gone missing from a file, the list of examples is endless.   In fact, studies on the impact of prosecutorial misconduct reveal that Florida topped the list of states with prosecutorial misconduct: in Florida, 44% of cases appealled with a claim of prosecutorial misconduct were overturned.  That's almost HALF. 

The potential implications of this Israeli study -- and warning --  by Dan Frumkin upon criminal defense in the State of Florida is mindboggling to consider.  What will we do to insure that there hasn't been a frame-up?  Will the Innocence Project arguments be tainted now? 

What's the impact upon people like David Eugene Johnston, setting on Florida's Death Row while the Florida Supreme Court awaits DNA test results from a North Carolina lab?  Johnston was scheduled to be executed in May.  DNA testing may save his life - but will the State use Frumkin to muddy the waters?

Herman Lindsay Freed From Florida Death Row, Will David Eugene Johnston Be Next?

Earlier this month, Herman Lindsay was freed from Death Row after the Florida Supreme Court ruled that there just wasn't enough evidence to find Mr. Lindsay guilty of anything -- much less sentence him to death.  Herman Lindsay became a free man this month, after being tried and convicted in 2006 for the robbery and murder of a pawn shop owner back in 1994.   In an unianimous verdict, the high court found that the trial court judge made a mistake in allowing the conviction to stand.

Meanwhile, over in Orlando, David Johnston is fighting to get off Death Row, as well....

Having decided the fate of Herman Lindsay, the Florida Supreme Court now holds the life of David Eugene Johnston in its hands.  Convicted of the 1983 murder of an elderly woman in her Orlando home, Johnston was scheduled to die in May.  However, the high court halted the execution in order for more DNA testing to be done.  There was a skirmish between prosecution and defense based upon missing DNA samples, and some accusations of mishandling of the DNA itself.

The Florida Supreme Court put a kabash to all this by ordering more testing, and an agreement was reached between counsel for an outside lab, based in North Carolina, to take the remaining samples and test them to see if Johnston's male chromosomes appear in the crime scene evidence.

For David Eugene Johnston, the test results mean everything.  If the North Carolina lab returns with results that exonerate him, then he may be joining Mr. Lindsay on the Florida highways and byways.  If not, then his execution may well be rescheduled sometime soon.

Another Example of the Power and Importance of the Florida Supreme Court

Within the past sixty days, two men sitting on Death Row -- and their loved ones -- have looked to the justices sitting on the Florida Supreme Court to make decisions that have literal life and death results.  

It's important to remember that the appellate process is an important and vital component to justice -- just because there is a trial, that doesn't mean that justice has been found.  And just because there is a conviction, it doesn't mean that the fight is over. 

To learn more about who sits on the Florida Supreme Court, go here.

Will New DNA Testing Free Florida Death Row Inmate David Eugene Johnston, Who Was Set to Die on May 27th?

Last Friday, the Florida Supreme Court received the lab report from the state crime lab on the DNA evidence pertaining to the murder of Mary Hammond in 1983, and the conviction of David Eugene Johnston for that crime.

Johnston was set to be executed by the State of Florida on May 27, 2009 - but the Florida Supreme Court stayed the execution so DNA testing of the evidence could be performed. After all these years, the state still has not only safeguarded Johnston's shorts, socks, and shoes but also fingernail clippings from the victim (which contain skin and blood evidence from a male).

The State Crime Lab report had no concrete result for the high court: instead, the formal recommendation was for more testing with better technology. Today, two labs are involved: one chosen by Johnston's attorneys (in Ohio) and one by the prosecutors (in Virginia).

Curiously - and tellingly, prosecutors had opposed DNA testing in this case, arguing (unsuccessfully, of course) to the high court that there was more than enough evidence to confirm Johnston's guilt without doing the testing. Two questions come to mind:

1. If it's so clear that he's that guilty, then why wouldn't the prosecutor just go along with the defense motion stand and let Johnston's request for testing just provide further support for the state's case?

2. Why not automatically insure that DNA testing has been performed before any execution is performed in this country? Surely this isn't too much to ask.

The Controversial New Reality TV Show - "Dallas DNA"

Later this month, a new reality-TV show will begin to air on the Discovery channel, called "Dallas DNA." Dallas County District Attorney Craig Watkins is supportive of this new show; he's quoted in USA Today as saying it " '...makes justice better by showing the good, the bad and the ugly.' " Meanwhile, the chief counsel to the Innocence Project of Texas, Jeff Blackburn, is quoted as believing that the show exists merely to boost Watkins' political career.

What is "Dallas DNA"?

The show itself focuses upon the use of DNA testing to discover individuals wrongfully convicted, particularly those on death row. Law students working with the Innocence Project of Texas, and presumably those working with District Attorney Watkins, will be the series' new reality stars. Their work will be filmed and televised for a profit.

Remember, this is a reality TV show. As is "Survivor," "Amazing Race," and "Dancing With the Stars."

What is The Innocence Project?

The Innocence Project has become internationally known for its successful exoneration of innocent men and women across the country. One well-known Florida case involved the exoneration of Frank Lee Smith after he had served 14 years on Florida's Death Row. The work of the Innocence Project of Florida successfully exonerated Smith of the rape and murder of an eight year old girl using DNA evidence. Unfortunately, Mr. Smith died before he was fully exonerated, and never had the opportunity to enjoy the freedom for which he had been wrongfully denied those many years.

Another Example of an Overzealous and Greedy Media Overstepping their Bounds

You read my earlier posts regarding trial by media and media witch hunts. I'm extremely concerned about the media's blatant exploitation of high profile criminal cases for their own profit-motive, and how this harms our basic constitutional rights.

Learning of this new reality-TV show only adds fuel to this fire. Remember, this isn't a documentary of the Innocence Project's work. No. This is a profit-making machine, seeking to boost the ratings of the Discovery Channel.

And, while shining more light onto injustice is to be applauded, as a criminal defense attorney I have to wonder about the risks involved with filming these investigations as they are transpiring. Errors can occur. Bias can be created.

It's reported that District Attorney Watkins is reviewing all the film for ways the pending legal cases could be jeopardized (such as any breaches of the attorney-client privilege) - but that doesn't seem like it's enough, that's more like closing the barn door after the horse is gone.

Imagine the comfort that gives to defendants and defense counsel: the prosecutor is checking to make sure things like privilege have been protected. Right.

From a defense perspective, this isn't a tough call: having reality television involved in the attempts to exonerate a man or woman facing death on any state's death row is very inappropriate, legally dangerous, and just plain wrong.

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