DNA evidence presented in criminal trials is often
considered infallible, with prosecutors lauding a genetic match as a “forensic
gold standard” – certainty that, according to the FBI, has a 1 in 113 billion
chance of being wrong. New findings, however, recently
unearthed and made public by San Francisco lawyer Bicka Barlow are placing
that certainty under threat after state-wide searches found “dozens” of unique
DNA pairs that matched according to the government’s criteria.
Barlow points to the findings of little-known Arizona state crime lab
analyst Kathryn Troyer, after tests she ran found a pair of genetic profiles
that matched, according to state standards. The convicts that her system
matched were very much unrelated, however: one felon was white, and the other
was black.
Neither state databases, nor the FBI national DNA database called CODIS,
keep complete records of a person’s DNA. Instead, databases store a tiny slice
of a person’s genetic map – data on 13 specific locations, or loci, along a
sample’s (blood, hair, etc.) chromosomes. In the recent past, DNA samples are
considered a match when at least 9 out of the 13 loci are found to be
identical, however many states now insist on a complete, 13-for-13 match
instead. (A lower standard is still applied in cases of damaged, contaminated,
or old crime scene evidence.)
Intrigued about her discovery, Troyer and her colleagues ran additional
tests and published their findings in “a simple poster” at a national
conference of DNA analysts. A handful of attendees said they saw similar
findings in their own labs.
Barlow stumbled across the poster three years later, while conducting
research for a client accused of 20-year-old charges of rape and murder. Her
client was caught by a nine-loci match of his DNA profile and semen found on
the victim’s body.
After speaking with Troyer, Barlow obtained a court order to run a radical
new search on Arizona’s DNA database, one that would compare every DNA profile
stored against every other DNA profile. The results were astonishing: in a
database of 65,000 felons, Arizona’s system found nine-loci matches between 122
pairs of profiles. 20 pairs of profiles shared 10 loci, and one pair match at
both 11 and 12 loci.
While many of those matches could be explained away – felons in the 11 and
12 loci matches were later determined to be relatives – a heavy majority of DNA
matches had no explanation.
Troyer’s findings have the potential to turn the criminal justice system
upside-down, bombarding courts with requests to have the supposedly
“infallible” DNA evidence reexamined.
The FBI continues to assert the accuracy of its claims, and calls Troyer’s
findings the result of an unorthodox, unauthorized style of search. Normal
criminal cases do not seek to compare masses of records against each other, and
the odds of a false match in the FBI’s permitted
check-one-sample-against-the-database search are still in the billions.
Troyer’s findings and Barlow’s insistence have since resulted in requests to
run a similar, “Arizona-style” search against CODIS, as well as numerous other
states’ internal DNA databases. In many cases, state DNA databases are linked
to CODIS.
CODIS head Thomas Callaghan condemned Troyer’s findings as “misleading” and
“meaningless,” and the FBI’s national crime lab has threatened to cut off
states’ access to CODIS for if they run similar searches – even if they are
court-ordered – against it. A massive search against CODIS could have a variety
of ill effects, he argued, including knocking the database offline, overloading
the FBI’s systems, or data corruption.
Despite FBI resistance, both Maryland and Illinois judges ordered an
“Arizona-style” search on their state DNA databases, together adding another
1,000 nine-loci-or-more matches to the pot. Neither state saw their CODIS
access cut, nor did they experience any kind of downtime.
In Maryland’s case, a search conducted in January 2007 against a database of
30,000 profiles yielded three “perfect” matches – 13 of 13 loci found
identical. Experts say the matches are probably duplicates, or that they belong
to identical twins or brothers. The odds of matching two unrelated people, they
say, is 1 in 1 quadrillion. The state of Maryland never investigated further.
“DNA is terrific and nobody doubts it, but because it is so powerful, any
chinks in its armor ought to be made as salient and clear as possible so jurors
will not be overwhelmed by the seeming certainty of it,” said UC Hastings
College of the Law David Faigman, who specializes in scientific evidence.
Speaking in a recent phone interview that the Los Angeles Times described
as “cautious” and supervised by her superiors, Troyer said she originally saw
her findings as “interesting,” and simply “wanted people to understand [that a
false positive] can happen.”
“If you’re going to search at nine loci,” said Phoenix lab director Todd
Griffith, “you need to be aware of what it means … it’s not necessarily
absolutely the guy.”