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Dirty DNA

The significant problems we face cannot be solved at the same level of thinking we were at when we created them.

-Albert Einstein

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Remembering Mary Jane Burton

Most of the information provided here in Dirty DNA might be difficult to stomach. Let's start out on the right foot by remembering what is GOOD about the advances in forensic DNA technology. Mary Jane Burton was one-of-a-kind among forensic biologists. In the 70’s and 80’s, Ms. Burton, an analyst with the Virginia Department of Forensic Science, routinely collected cuttings from biological evidence items. She taped those cuttings directly into her case files. Other crime lab scientists did not practice this habit. Why should they? During that time frame in the history of forensic science, little or no useful data could be generated from such samples. Somehow, Mary Jane Burton must have anticipated the sweeping changes that would encompass forensic DNA technology. Her sample cuttings have so far been found in three crucial case files.

Consequently, modern DNA analysis of those sample cuttings has cleared three wrongfully convicted men. Each of these men spent decades behind prison walls for crimes they did not commit. Ironically, their exonerations took place after Mary Jane’s death in 1999.

Related Articles:
Saved from the grave
Mary Jane’s legacy

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THE FRED ZAIN STORY

Okay, now the stories get ugly. Fred Salem Zain was a West Virginia State Police forensic expert for over ten years. Hired by the West Virginia Department of Public Safety crime lab in 1979, Zain falsified test results in as many as 134 cases. Zain testified in countless rape and murder cases about analysis he had never done and scientific data that simply did not exist. The man presented himself well in the courtroom. Faced with Zain’s apparently knowledgeable demeanor, judges, juries, prosecutors, and defense attorneys saw no reason to doubt his testimony. Even when non-biological evidence conflicted with Zain’s testimony, the convictions came easily. Over the years, Fred Zain rose to the position of Chief of Serology. By this time, Zain had already become the darling of the prosecutors, ….especially those with a ravenous appetite for victory. 

In retrospect, Zain was not even properly qualified to be doing forensic lab work in the first place. Examination of college transcripts have revealed that Zain was a mediocre scholar who had failed organic chemistry. Apparently, no one ever reviewed those transcripts prior to elevating Zain from position to position. Similarly, little or no effort was ever made to disqualify him as an expert witness. In 1985, two of Zain’s West Virginia lab co-workers informed superiors that they witnessed Zain recording data from blank test plates.  Kenneth Blake, the director of West Virginia’s Criminal Identification Bureau, reviewed the allegations. Blake dismissed the entire matter as nothing more than a petty feud among co-workers. "They didn't like Zain, and Zain didn't like them.", Blake said of the circumstances. "But we never had any complaints from prosecutors, defense attorneys or investigators."

In 1989, Zain’s status with the prosecutors in West Virginia led to a promising job opportunity as the Chief of Physical Evidence for the Bexar County Medical Examiner's Office in San Antonio, Texas. In his new job, Fred Zain dazzled Bexar County prosecutors with his compelling testimony that centered on fabricated scientific data.

Zain’s courtroom performances could have been neutralized by rigorous cross-examinations and counter-testimony provided by defense experts. The fear of such exposure might have discouraged the man from continuing with his falsifications. However, Zain had become accustomed to operating in a legal system that relied almost entirely on expert testimony from prosecution witnesses. Even today, a severe lack of funding resources for defense expert witnesses continues to present a widespread crisis. Without such resources, it is almost impossible to keep prosecution experts honest.

Zain’s inevitable downfall came as consequence of the State of West Virginia v. Glen Woodall. Woodall was convicted in 1987 of multiple felonies, including two counts of sexual assault, and sentenced to a prison term of 203 to 335 years. At the trial, Zain testified that semen samples recovered from the victims were consistent with Woodall. In 1992, DNA testing cleared Woodall of any guilt. His convictions were overturned. Woodall sued the State of West Virginia for false imprisonment, and received a $1 million settlement. This ultimately led to an extraordinary investigation of the entire body of Zain's work ordered by the West Virginia Supreme Court. Nine men have since been exonerated in West Virginia upon discovery of Fred Zain’s appalling tactics. Thus far, $6.5 million has been paid out by the state of West Virginia as restitution for the wrongful convictions.

When asked to review Zain’s work in San Antonio, the Dallas forensic specialist, I. C. Stone, uncovered an abundance of fraud and falsification. In one case, Zain had testified about blood evidence when no blood had ever been found. In other cases, Zain reported conducting tests that his lab was incapable of doing in the first place. As a consequence of Stone’s report, Zain was fired. In 1998, Zain was charged in Hondo, Texas with aggravated perjury, evidence tampering, and fabrication connected to the 1990 wrongful rape conviction of Gilbert Alejandro. In Texas, five ‘Zain convictions’ have thus far been overturned. The total settlement costs remain to be determined. Fred Zain died of colon cancer in 2002.

Related Articles
When experts lie
N.Y. Times-Fred Zain
Fred Zain dies

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Joyce Gilchrist

On December 10, 1982, 18-year-old Pamela Kaye Willis was found murdered in the Oklahoma City home where she was staying. Willis was nude and she had been stabbed and strangled. Curtis Edward McCarty, an innocent man, was convicted of the crime in 1986. He was later exonerated in 2007 after serving 21 years in prison – including nearly 18 years on death row.

McCarty’s loss of freedom came at the hands of prosecutorial misconduct coupled with fraudulent testimony from Joyce Gilchrist, a forensic analyst with the Oklahoma City Crime Lab. How was the fraudulent testimony allowed to occur? Gilchrist compared hairs from the Willis crime scene with McCarty’s and initially reported that they were not similar. Police interviewed McCarty several times over the next three years, but he was not arrested until 1985. At that time, Gilchrist covertly changed her notes and reversed her findings, saying now that the crime scene hairs could have been McCarty’s. Attorneys for McCarty did not discover the change in Gilchrist’s notes until 2000. The professional misconduct of Gilchrist has contributed to at least two other convictions that were later overturned by DNA evidence. Gilchrist testified in thousands of cases during her 20-year career.

Related Articles:
Oklahoma: What a mess!
Tampering analyst gives McCarty 21 years of hell
Oklahoma analyst speaks to 60 minutes

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Multiple Meltdowns at
the Houston PD Crime Lab

In November 2002, accusations surfaced that the Houston Police Department (HPD) DNA Crime Laboratory was conducting faulty analysis and presenting findings in a misleading manner during testimony in criminal proceedings. The defective testimony was unfairly skewing the process to help prosecutors obtain convictions. Deficiencies were also revealed pertaining to the experience and education of various lab personnel.

In December 2002, all HPD DNA Crime Lab testing was suspended. The HPD asked the Texas Department of Public Safety (DPS) to audit the DNA laboratory. The audit report, released in January 2003, confirmed serious inadequacies in the laboratory's procedures, including routine failure to run essential scientific controls, failure to take adequate measures to prevent contamination of samples, failure to adequately document work performed and results obtained, and routine failure to follow correct procedures for computing statistical frequencies.

In January 2003, Harris County district attorney, Chuck Rosenthal, announced that hundreds of HPD DNA cases would require retesting. Allegations were brought forth that the HPD Crime Laboratory had falsely incriminated an innocent man in a 1999 rape case. The case was the state of Texas v. Josiah Sutton. In March 2003, new DNA tests established that Josiah Sutton could not have committed the rape for which he had served four and a half years in prison. The evidence, which was initially processed at the HPD Crime Laboratory, incorrectly linked Sutton to the crime. Sutton was released from prison.
In August, 2004, HPD Chief Harold Hurtt revealed that evidence from thousands of cases dating back to the 1970s was improperly stored in HPD's property room.

In October 2004, George Rodriguez was released from prison after serving 17 years for a rape he did not commit. He was convicted on faulty work conducted by the HPD DNA Crime Lab.

In 2007, an investigative team released its final report recommending, among other things, re-testing of 413 questionable DNA Crime Lab cases.

On January 25, 2008, the HPD once again closed the DNA division of its troubled crime lab, following the resignation of its chief and the suspension of two other employees, ending an investigation into an alleged cheating scandal.

Related Articles:
Houston PD lab disaster of 2003
N.Y. Times-Houston PD lab woes
Sutton: Victim of the Houston PD lab scandal
George Rodriguez: Yet another victim
2008: Houston PD lab troubles resurface

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Virginia Governor Commutes
Death Sentence

On November 29, 2005, Virginia Governor Mark Warner issued a press release announcing that he would commute Robin Lovitt's death sentence to life imprisonment. The announcement came one day before Lovitt's scheduled execution. Warner cited the improper destruction of biological evidence by a court official, which prevented a post-conviction DNA re-test. The governor's press release did not address the claim that Lovitt received an unfair trial as a consequence of misleading testimony about "inconclusive" DNA tests. The ability of the defense to question the faulty testimony has now been hindered by the irresponsible destruction of case evidence. Whether he lives or dies, Lovitt's case will continue to be an excellent illustration of the failure of the justice system, at both the trial and appellate level, to deal effectively with problematic scientific testimony.

Related Article:
Destruction of DNA evidence in Virginia

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 The Forensic Hall of Shame

Houston Police Department Crime Lab

Chicago Police Department Crime Lab

FBI DNA Crime Lab

Fred Salem Zain-Chief of Physical Evidence

Arnold Melnikoff-Montana State Crime Lab Director

Joyce Gilchrist-Forensic Chemist/Biologist

Dr. Pamela Fish-Forensic Chemist/Biologist

Steven Hayne-Medical Examiner

Dr. Ralph Erdmann-Forensic Pathologist

Dr. Michael West-Forensic Odontologist

Dr. Raymond Rawson-Forensic Odontologist

Sandra Anderson-Cadaver Dog Handler

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