Who owns your genes?

Well, you might be surprised who owns your genes. The ACLU published an article yesterday in their Daily Kos diary that began,

Today the ACLU and the Public Patent Foundation filed a lawsuit challenging the U.S. government’s practice of granting patents on human genes – specifically, the BRCA1 and BRCA2 genes, which are associated with breast and ovarian cancer... At this point, 20 percent of the human genome has been patented.

Besides the immediate shock – surprise and disbelief – I wondered what the ACLU's angle was, what claims in particular they made in their lawsuit. On what grounds could they contest the practice?

The ACLU released a statement from their President, Anthony D. Romero, found here, that contains this compelling point: "Knowledge about our own bodies and the ability to make decisions about our health care are some of our most personal and fundamental rights." Perhaps, then, it is a privacy issue, a nebulous right not expressly defined in the Constitution, but often believed to exist. Instead, the ACLU is actually attacking this practice on the grounds that it infringes free speech:

We believe this is a gross violation of First Amendment rights: individuals’ rights to know about their own genetic makeup, doctors’ rights to provide their patients with crucial medical information, and scientists’ rights to study the human genome and develop new treatments and genetic tests.

The magazine Wired also covered the story. I found this to be a good quote, but not a free speech concern:

“All identifying of differences, including those that are found in the future by anyone to correlate with an increased risk of cancer, are patented. Myriad did not create any of the differences found in the genes. Nature did,” said the suit, referencing patent holder Myriad Genetics of Salt Lake City.

Again, from Wired: "Myriad, which had issued a cease-and-desist order to Yale University scientists researching the genes, said it would prevail in the case."

Article I, Section 8, Clause 8 is written to protect intellectual property. It reads: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Not a patent lawyer, but suing a world-class research university to stop them from exploring something that's inside many people by nature, I don't think, promotes the progress of science.

Texas bill allows defendants to challenge their convictions based on junk science

Per the Innocence Project's blog today, "A bill passed by the Texas Senate this week would provide an avenue for prisoners to challenge convictions based on discredited forensic science." They reference a story in the Marshall News Messenger that begins,

Criminals who were sent to prison — or sentenced to death — based on discredited scientific evidence would be given a new way to challenge their convictions under a bill passed this morning by the Texas Senate.

In recent years, an increasing number of arson and gunshot convictions in Texas have triggered alarm as new technology proved earlier evidence wrong, and convictions were cast into doubt — including at least one case in which the prisoner was executed.

The measure by state Sen. John Whitmire, D-Houston, would allow discredited scientific evidence that figured in a criminal conviction to be considered by an appeals court in order to establish the innocence of a defendant...

Advancements in forensic testing — DNA, ballistics and arson — have led to new evidence being uncovered in several cases in Texas. Whitmire said that led him to file the bill, which clarifies how discredited scientific evidence can be used in court appeals.

In December 2008, we worked to overturn Jimmy Ates' conviction, based largely on fraudulent FBI bullet lead analysis. Since then, the National Academy of Sciences has issued a scathing report, decrying the sorry state of forensic science labs around the country.

We know well how junk science can contribute to a wrongful conviction – indeed, the Innocence Project in New York says that junk science contributed to over half of the nation's first 225 DNA exonerations. We applaud steps like these being taken in Texas, and hope that a new incredulity toward and accountability regarding forensic science will spread to other states and jurisdictions.

What if DNA evidence from a crime scene could tell us what the perpetrator looked like?

That question is the taken from a new post over at the Change.org Criminal Justice blog. The post is inspired by an article in the Wall Street Journal, that explains how researchers at Pennsylvania State University performed a study attempting to link specific genes to "phenotypes," or their physical expressions. What this means, then, is that scientists might be able to tell, roughly speaking, a person's physical characteristics by examining their DNA.

As Matt Kelley, the author of the post points out, there is much reason for alarm here. As he says, and as we have noted before, there is cause for concern over "the propensity of criminal justice agencies to use scientific methods before they're ready." He adds, "The U.K. and the Netherlands are already using some form of these tests, as are some U.S. states. Germany has outlawed the practice, along with Indiana, Wyoming and Rhode Island."

Lastly,

The WSJ reports that researchers are able to predict eye color 70-90% of the time and skin color 46% of the time. These numbers aren't strong enough to rely on. Wrongful convictions happen - and real perpetrators get away - when faulty or limited science puts police on the wrong track in those crucial first few days after a crime. I agree that these tests could be helpful in some cases to confirm other evidence, but can we guarantee that genetic composite sketches won't be become simply another form of unreliable forensic science?

The question is when and whether this will become more accurate than other methods of identification, and whether this technique can be used without any illusions of its accuracy. The worry is that juries might hear DNA evidence and assume the practice is close to 100% accurate, rather than the more pitiful, but more truthful, measure of its accuracy.

Brevard County Drops Charges Against William Dillon

For Immediate Release

Today the Brevard County State Attorney’s Office dropped all charges against William Dillon for the 1981 murder of James Dvorak in Canova Beach, Florida. Mr. Dillon served 27 years for a crime he did not commit, equaling the longest time served by any of the 225 DNA exonerees nationwide. Mr. Dillon joins Juan Ramos and Wilton Dedge as the third man exonerated in Brevard County in recent years.

“At least it didn’t take them three years to do the right thing in this case, like it did in the case of Wilton Dedge,” said Seth Miller, Executive Director of the Innocence Project of Florida (IPF). “Now that this charade is over, maybe they can focus on finding the real killer.”

Mr. Dillon, who has always maintained his innocence, was convicted on the basis of unreliable and false evidence including: subsequently recanted testimony of a star witness who was threatened by and having sex with the State's lead investigator; fraudulent scientific testimony of dog handler John Preston; testimony of a jailhouse snitch whose pending rape charge was dismissed after fingering Dillon; and a mistaken eyewitness identification by a man legally blind in one eye.

“Now that they’ve dropped the charges against Bill, they can start filing charges against the real criminals in this case,” said David Menschel, Legal Director of IPF. “There’s an open secret in Brevard County that there was a criminal conspiracy between the Sheriff’s Office and a fraudulent dog handler in order to manufacture convictions against suspects regardless of the evidence. That’s a crime, somebody needs to investigate it, and people need to go to prison.”

IPF called for the Governor to investigate the conduct of Brevard County State Attorney’s Office and Sheriff’s Office last month when Mr. Dillon’s conviction was vacated. Miller reiterated that call today: “It’s hard to have confidence in any of the convictions in this county given how widespread the corruption is. We again urge Governor Crist to not only investigate this corruption, but to review every case where John Preston testified. There are other wrongful convictions out there that need to be uncovered.”

“We’re thrilled that this cloud has been lifted from Bill and his family, just in time for the holidays,” added Melissa Montle, Staff Attorney with IPF.

The Innocence Project of Florida (IPF) is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons.

# # #

The Dillon Case: It's all about the Perjury

When most folks think of the Dillon case, they are immediately attracted to John Preston and his Magic Dog, Harrass II. Yes Preston testified in Dedge; he testified in Ramos; and he testified in Dillon. All three are clearly innocent. Of course Preston's dog couldn't have actually tracked an eight year old scent (shout out to IPF intern Kevin for making the astute point that a painted trail would not have survived 8 years in Florida, making it an absurd notion for a scent trail to do so). And yes, the only way for Preston to do these miraculous thngs with such astonishing accuracy was to have been fed the information by law enforcement folks at the Brevard Sheriff's office who knew the case.

But let's put that all aside for now since the State Attorney has unfortunately decided not to embarass themselves and use this testimony against Dillon retrial. The crux of their case is testimony by Donna "the Perjurer" Parrish. I don't ascribe that nickname to her in a figurative sense. Her actions meet the legal definition of perjury and yet the State insists on making her the centerpiece of it's efforts to save their sinking ship of a case against this innocent man.

Donna the Perjurer was Dillon's casual partner in 1981 at the time of the murder in this case. She gave testimony under oath against Dillon at trial indcating, not that he murdered anyone, but rather that she saw him standing over the victim's body after the victim wAs already dead. It just so happens that on her first interview with law enforcement The Perjurer, she was coerced into doing it with the lead investigator and was theeatene with a quarter century of incarceration if she did not implicate Dillon. It's no wonder she was the State's star witness as trial.

Soon after-a mere few weeks-The Perjurer got a conscience and recanted her trial testimony in full and under oath admitting her words at trial were a complete fabrication.

Now the State, trying to preserve a false conviction at all coats. wants to put her up anew and have her essentially recant her recantation. Look we know that she is a liar. But the big deal here is that whichever version of events you believe, both can't be true. This means that Donna knowingly gave false testimony, under oath, at some point. More troubling, however, is the fact that the State would rather put a known perjurer on the stand to revictimize and innocent man than just prosecute Donna the Perjurer and the individuals who knowingly let her perjurer herself. Even more disconcerting is that the Syate appears to be offering her some juice in exchange for her (we think false) testimony still this day.

It's time for the State to give up this charade and drop the charge against Dillon. It is the minimum justice demands.

DNA Identifies 1982 Texas Rapist

Associated Press, January 30, 2008, DALLAS — The dramatic events that culminated Wednesday in prosecutors identifying the real rapist in a 1982 crime that put the wrong man behind bars had the simplest of starts: a basic Internet search.

"I typed in 'aerobics' and 'sex assault'," said Matt Kelley of the Innocence Project, a New York City-based legal center that specializes in overturning wrongful convictions. "And sure enough I got this guy."

That would be Sidney Alvin Goodyear, the man the Dallas County district attorney said was guilty of the crime that sent Steven Charles Phillips to prison for 25 years.

Goodyear won't be prosecuted, though. He died 10 years ago in prison at age 50.

The Innocence Project stumbled across Goodyear's name about 18 months ago after lawyers there decided to take on Phillips' case. Among the crimes for which Phillips was behind bars was a series of bizarre assaults in which the perpetrator went into aerobics classes, forced women to disrobe at gunpoint and then made them hold poses.

Kelley, who was part of the team that researches the cases of new clients, ran across a 20-year-old newspaper story about Goodyear, who was convicted in California for similar crimes in 1982. The story mentioned Goodyear had also lived in Texas.

"How many people could be breaking into aerobics classes and making people pose?" Kelley said. "It just seemed so rare to me."

Continue reading.

Unpacking the Misconduct in the Chad Heins Case: Improperly Influencing Witnesses Edition

Today, the Florida Times Union published an article that begins to unlock the prosecutorial misconduct that took place in the case of Chad Heins, Florida's 9th and most recent DNA exoneration:

Only weeks before Chad Heins' murder trial in 1996, a Jacksonville prosecutor sent a memo asking a state crime lab supervisor to downplay findings that stray hairs found on the victim's body came from an unknown person. "I need to structure your testimony carefully so as to convince the jury that the unknown hairs are insignificant," Assistant State Attorney Stephen Bledsoe wrote in a letter recently obtained by the Times-Union.

In December 1996, a jury convicted Heins of the first-degree murder of his sister-in-law in her Mayport apartment. He was sentenced to life in prison until new DNA tests led to his release last month.

Some prosecutors will argue that this is simply just a case of Mr. Bledsoe alerting his witness of the intent to perpetuate testimony that will raise possible reasons why unknown hairs were found at the scene of this murder. In fact, that is exactly what Mr. Bledsoe's boss stated:

But State Attorney Harry Shorstein called Bledsoe, who he's known for 35 years, one of the most ethical prosecutors in his office. Bledsoe probably wanted to ensure that the crime lab witness testified about possible explanations for the unknown hairs, Shorstein said.

"I don't like the wording of the letter because I think it does lead to conjecture or suspicion of wrongdoing," he said. "But the important thing is he disclosed that evidence. Steve Bledsoe is about a straight an arrow as any lawyer I've ever worked with."

But this letter from Mr. Bledsoe is far more nefarious, despite his current boss' protests to the contrary, arguing about the inartful wording of this letter and Bledsoe's supposedly high ethical status. In the face of evidence that casts serious doubt on Chad Hein's guilt (nevermind the recent DNA testing of these hairs, fingernail scrapings from the victim, and semen found on her bed sheet that all pointed to the same unknown male perpetrator), Bledsoe is trying to improperly influence his witness, a State of Florida employee, to conceal the truth about this hair evidence; to convince the jury that it really isn't what it truly is.

What's more, before Chad's exoneration, current prosecutors, led by Harry Shorstein, sought to prevent introduction of this letter into evidence at a new trial, clearly understanding the import of the letter and what it would say to the jury about the probative value of this hair evidence.

Chad's attorneys used phrases like "cavalier disregard for the actual evidence." Another attorney made the point that if the roles were reversed, the prosecution would be trumpeting this letter as the defense's attempt to improperly influence a witness.

Regardless of how you characterize these actions, it's a sad commentary on the tunnel vision of the Florida prosecutor bar writ large, where we have become more interested in convictions at all costs than finding the truth.

Kudos to Paul Pinkham for beginning the public dissemination of misconduct in this case. To read more about this the Chad Heins case out of Jacksonville, Florida (Duval County),go here.

IPF Profiled on Fla. Bar News Cover Story

Picture: Chad Heins, leaving Duval County Jail, December 4, 2007.

This is a great story on what's going on at IPF, including updates on three of our exonerees (Chad Heins, Larry Bostic, and Alan Crotzer), and much, much more. Here is the lede:

Clutching his worldly possessions in one small packet, Chad Heins walked out of the Duval County Jail on December 4 a free man, after spending nearly 14 years locked up for the stabbing death of his sister-in-law he’d insisted from the beginning he did not commit.

With a broad grin, Heins, now 33 — only 19 when he was sentenced to life in prison — gratefully hugged his lawyers one by one.

Among them were Jennifer Greenberg and Seth Miller of the Innocence Project of Florida, buoyed by yet another flesh-and-blood reminder of the merit of their nonprofit legal clinic’s work: the ninth DNA exoneration in the state and the 210th nationwide.

Also, the Bar News included a cut away on our creation of the Exoneree Emergency Fund, which is designed to provide modest, but immediate assistance to our exonerees when they get released from prison until they are compensated by the legislature. The fund will obviously not meet all of their needs but can be used for general transition needs, such as clothing, food, housing assistance, medicine, etc. If you would like to contribute to this vital fund, go to our contribution page to donate online or, for information on where to send contributions through the mail, go here. Whether contributing online or by mail, please indicate that you would like your donation earmarked for the Exoneree Emergency Fund.

Thanks to Jan Pudlow of the Florida Bar News for spending multiple days at our office with us and for putting together such a nice piece which will be viewed by every licensed lawyer in Florida.

NEWS REPORT: DNA Testing Granted in Pasco County Death Case

On December 19, 2007, a Pasco County judge granted Samuel Jason Derrick post-conviction DNA testing on evidence in this case. From the December 28, 2007, St. Petersburg Times story:

Derrick, his family and his lawyers hope the latest advances in forensic technology will exonerate the 40-year-old Moon Lake man in the 1987 murder of storekeeper Rama Sharma.

"I'm just thankful that the truth is going to come to light," said Derrick's former wife, Cherie.

A bloody remnant of a white T-shirt, a partially eaten hot dog, blood found under a picnic table and scrapings from the victim's fingernails will all be tested, the judge ordered Dec. 19. The defense's hope is that viable DNA can be recovered from the evidence that will implicate someone other than Derrick in the stabbing murder of Sharma.

Derrick has maintained his innocence since he was arrested for this 1987 murder and has spent half of his 40 years on this planet in prison, on death row. Previous DNA testing on fingernail scrapings was performed in 2002 but didn't yield a result. Derrick's attorneys hope that the more exacting Y-STR DNA testing now used will yield an excluding result this time around:

The fingernail scrapings were tested in 2002 but gleaned no DNA profiles, the defense motion said. But they could still yield something to a more sensitive DNA test called Y-STR now available, according to the defense motion, that "targets genetic markers found on the Y-chromosome, which only males possess."

"It's really vital that we use Y-STR or one of the really cutting- edge tests that have been developed," said Alba Morales, Derrick's Innocence Project attorney. "Because it really improves the chance of getting a result from what is by now a fairly degraded sample."

Mr. Derrick is represented pro bono by Alba Morales of the New York Innocence Project and appointed attorney Harry Brody.

NEWS REPORT: DNA Testing on Hair Could Have Proved Innocence But Trial Attorney Refused Testing Due to . . . Cost?

Esdras Cardona was recently convicted of sexual battery for the April 2006 rape of a pastry chef at the exclusive Everglades Club in Palm Beach, Florida. The evidence central to the prosecution's case was the witness ID of Cardona, the perpetrator's t-shirt found at the scene which was the same brand and type of shirt found in Cardona's bedroom, and a toothbrush found at the scene that did not belong to the victim and contained DNA which was miraculously consistent with that of Cardona. The case is chronocoled in this Palm Beach Post story.

One would expect prosecutors, eager to obtain a conviction, to want to skip over additional scientific testing that could yield probative evidence of guilt or innocence. The prosecutors went to trial thinking (and were correct) that they had enough evidence to score a conviction of Mr. Cardona without testing the two hairs with roots collected from the perpetrator's t-shirt:

Former Assistant State Attorney Ron Herman handled the case in the months before Cardona's trial. Herman said he was confident in the evidence he had: a rape victim's strong eyewitness ID of Cardona and his toothbrush found at the scene. "I thought it was solid to support a conviction," Herman said. Hairs from the bed and T-shirt - they were a gamble. If none belonged to Cardona, it would not point-blank exonerate him, Herman says. And it may have mucked up the prosecution's case against him. Besides, Herman knew Cardona's defense team had asked to have the hairs tested at a private DNA lab - an effort he did not oppose.

So if the prosecutor doesn't DNA test the hairs and his rationalization is that a result excluding Cardona as the contributor of those hairs would seriously muck up the prosecution's case, possibly raising enough reasonable doubt to support an acquittal, any defense attorney, paid in excess of $25,000 to represent Cardona, would surely obtain the testing? Right?:

In the months after Cardona's arrest in April 2006, the attorneys began their work, deposing witnesses, Amezaga's flying to Maine to take the victim's statement. In January 2007, Amezaga asked Circuit Judge William Berger to allow the defense to test the hairs at a private lab in Broward County, which the judge did. Amezaga said then Cardona's family would pay for the testing. Then their money ran out.

When a person who has paid a private lawyer runs out of money, he can have the state cover some basic costs by being declared "indigent for due process." Taxpayers then pay for the critical elements every defense deserves, including forensic testing and experts. The money is paid by the Justice Administrative Commission, an agency in Tallahassee that monitors requests.

. . .

In February, Amezaga received an invoice from the private Broward lab for the DNA testing. It cost a small fortune - $575 per hair, $350 per hour to review a case and $2,800 per day for expert testimony. Way in excess of what the JAC was willing to pay. In late April, Cardona's attorney returned to court and told [the judge] . . . that testing cost much more than the caps on costs allowed. . . . The commission, though, follows court orders from judges. And at that two-minute hearing in late April, Berger gave Cardona a critical ruling: "I find extraordinary circumstances and a need to have this particular lab engaged," the judge said. "Therefore the cap ... this will exceed it if necessary."

It seems that Mr. Cardona is in a great position to get his testing. What's more, is that these hairs have roots which makes DNA testing easier and implies that the hairs were forcefully removed (i.e. through a struggle), rather than deposited on the white t-shirt through casual contact or transference. So Mr. Zealous Defense Attorney took the judge's order for extraordinary costs to the JAC, right?

Well not so much:

Yet no test on the hairs in Cardona's case was ever done. Amezaga said it was not a strategic decision not to test the hairs; it was a financial one. He was unable to square the $6,000 cost of tests with what the state was willing to pay, he said.

But why was that? Berger had ruled Amezaga could exceed caps and spend more to get the hairs tested. The attorney looks taken aback when asked about this and refuses to say why. "You can draw your own conclusions about that," Amezaga said.

Just before Cardona's trial began in June, he met with Amezaga. That's when Cardona learned the hair evidence in his case had not been tested. Amezaga said the best legal advice he could give was for Cardona to fire him and get the public defender's office to represent him. That office, presumably, would be able to pay for the testing. Then the tens of thousands of dollars Cardona and his family had paid the attorney might all be for naught.

So Cardona went to trial [without the DNA testing and was convicted].

No one can truly know whether the toothbrush was planted at the crime scene or whether Esdras Cardona is innocent. But there is little question whether he deserved a better, more zealous, defense. His case is now in the hands of the West Palm Beach public defender and it is likely he gets his testing on appeal or in post-conviction.

As for Mr. Amezaga, he will likely be the subject of a non-frivolous claim of ineffective assistance of counsel, where he won't be able to sidestep the question of why he didn't get the DNA testing, when he had a judge's order allowing for the full expense of that testing to be paid by the State.