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?

Allegedly Improper Communications Between Judge and Broward County Prosecutor Gets Death Row Inmate Omar Louriero a New Trial

Omar Loureiro will be tried a second time for the murder of a Lighthouse Point man who he had gone home with from a local bar: right now, he's setting on Death Row for this crime.

In 2007, Loureiro was tried for first degree murder in the case, found guilty, and sentenced to death. Two years later, he's going back in the courtroom - and it's all because of the actions of the judge and the prosecutor in his first murder trial. (The new trial date hasn't been set.)

Testimony that Judge and Prosecutor Discussed the Case Over Dinner

Bottom line, there was testimony by Broward County prosecutor Sheila Alu that she had dinner with both Judge Ana Gardiner and prosecutor Howard Scheinberg, where they talked about the case, days before Loureiro was convicted. In fact, Alu testified that they had joked about the case.

Judge and Prosecutor Tell Their Side

The judge and prosecutor Scheinberg gave testimony, too - they admitted to an "appearance of impropriety," because they ran into each other at the restaurant while the trial was ongoing, but they denied discussing, much less joking, about Mr. Loureiro's trial. Critically, both also revealed in their testimony that they talked on the phone (cellphones, not office landlines) about the Louriero case sometime between this restaurant event and Mr. Louriero's sentencing several months later.

The Appearance of Impropriety is the Standard

Looks bad, especially since all attorneys everywhere recognize that phrase "appearance of impropriety" all too well. It's engrained early on that attorneys (and judges) are to err on the side of caution - we're not to give even a suggestion that anything inappropriate is taking place.

The Recent Texas Judge and Prosecutor Case Comparison

Of course, things can get much worse than this. Much worse. Over in Texas, it was revealed last year that a trial judge and the district attorney assigned to her courtroom had been carrying on a secret love affair for many years - and no one knew (though there was much courthouse gossip suggesting it) until one of the prosecutor's assistants blew the whistle on the two, which resulted in at least one Texas Death Row conviction being overturned thus far.

Charles Hood's conviction was overturned last month with the court ruling he had received an "unfair trial" due to the relationship between the judge and the prosecutor during his murder trial - and this, without any direct evidence that the judge and the district attorney ever spoke about the case directly.

The Problem of Prosecutors Withholding Exculpatory Evidence

A few weeks ago, we posted about the Ohio death row case of Vietnam Vet Gary Cone, where the United States Supreme Court returned the case back to the lower courts for a fresh consideration of his sentencing after finding that 23 years ago, Cone's due process rights had been violated because the prosecution withheld key evidence that was favorable to the defense - exculpatory evidence.

Sad to say, this happens all too often in this country.

Just this past week, in the Washington Post, Maryland attorneys Albert D. Brault and Timothy F. Maloney wrote an excellent article entitled, "A Standard for Fair Trials," where they outlined several examples of prosecutorial misconduct in the form of withholding exculpatory evidence.

While not all of their evidence pertains to capital punishment - for instance, they include a reference to the case of Alaskan Senator Ted Stevens - they do offer both the Ohio example of Gary Cone, and their suggestions for correcting an obvious system-wide failure is worth consideration.

The Proposed Solution: Codification of Brady into the Discovery Rules

In sum, they look back to the American College of Trial Lawyers' recommendation that the federal courts adopt rules of procedure regarding discovery in criminal cases that create "clear, bright lines" - essentially codifying the 1966 U.S. Supreme Court opinion in Brady v. Maryland and its progeny.

How much success they'll meet is questionable, since it was only three years ago -- in 2006 -- when this same solution was rejected because of strong opposition by the U.S. Department of Justice - even though the federal rules committee had voted to recommend their adoption. There's also the argument that the law is already on the books - prosecutors should be following Brady and subsequent precedents without the need for a nice, neat rule that outlines what Brady stands for.

Is Hiding Exculpatory Evidence an Established Practice?

While the majority of prosecutors play by the rules and strive to seek justice, are the exceptions making Brady violations an established practice? It seems that all too many state and federal prosecutors will continue this pattern of hiding the ball.. When caught, we'll see prosecutors doing just what a Boston prosecutor did this week, practically on the same day that the Washington Post article ran - cry "mea culpa" and beg the court's leniency because the prosecutor's career is in jeopardy.

For more details on how Boston prosecutor Suzanne Sullivan hid evidence that a Boston police officer contradicted what he had previously told the prosecutor when he took the stand and actually gave testimony at a pretrial hearing, check out this Boston Globe article.

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