Beating the Devil's Game: A History of Forensic Science and Criminal (33 page)

Simpson was notified that he would be arrested for murder, so he fled in his Bronco with his friend Al Cowlings, hinting in a note left behind that he might kill himself. With him were a passport, fake beard, and more than $8,000 in cash. His attorneys finally persuaded him by phone to turn himself in, and he was placed under arrest. Simpson pled not guilty, offered a huge reward for information about the real perpetrator, and hired a defense team of celebrity lawyers. Barry Scheck and Peter Neufeld arrived from New York to be the DNA experts, and Johnnie Cochran took over the lead, while F. Lee Bailey, Robert Shapiro, and Alan Dershowitz filled in the other slots.

The defense team was going to call for a pretrial hearing on DNA evidence, to challenge it from every angle, but decided instead to drop it. In part, they knew that whatever happened could set a dangerous precedent and in part they realized that prolonging the trial process could annoy the jury, whom they wanted on their side. So they waived the proceeding, which many defense strategists thought was a radical decision, and went on with the trial. Barry Scheck felt confident that they could produce challenges in court before the jury that would accomplish all they wanted and also educate and persuade the jury.

The reliability of this evidence was dubbed the “DNA Wars,” and as a safeguard, three different crime labs performed the analysis. All three determined that the DNA in several drops of blood at the crime scene matched Simpson’s. It was a 1 in 170 million match using RFLP, and a 1 in 240 million match using the PCR test (which was really just a jump-start procedure to acquire more material). Initially, PCR testing had been considered less definitive than RFLP because it did not detect as many matches at as many locations. However, PCR was faster and soon the testing was refined such that it equaled the reliability of RFLP. It was more practical as well, and could be utilized on much smaller samples. But there was still a problem, which the “Dream Team” of defense attorneys exploited. While they argued that the evidence had been mishandled at the lab, they also had Dr. John Gerdes, a biologist from Denver, explain the highly sensitive nature of PCR testing to demonstrate how easy it was to contaminate. In fact, Gerdes called the Los Angeles crime lab controls into serious question. Kary Mullis was prepared to take the stand as well to say something similar, but he was never called.

Famed criminologist Dr. Henry Lee testified that there appeared to be something wrong with the way the blood was packaged, leading the defense to propose that multiple samples had been switched. They also claimed that the blood had been severely degraded by being stored in a lab truck while the criminalists were processing the scene, but the prosecution’s DNA expert, Harlan Levy, said that the degradation would not have been sufficient to prevent accurate DNA analysis. He also pointed out that control samples were used that would have shown any such contamination, but Scheck suggested that the control samples had also been mishandled by the lab—all five of them.

What hurt the prosecution’s case more than anything else were the endless explanations they presented via experts of the complex procedures involved in DNA analysis. The defense kept it simple: They accused Detective Mark Fuhrman, who had been at Simpson’s home the night of the murder, of being a racist who had planted evidence. When they caught him in a blatant lie about his attitude toward blacks, they added credibility to their claim. They also said that Detective Philip Vannatter had been part of this conspiracy, since he had taken a vial of Simpson’s blood to Simpson’s home instead of logging it into the evidence room as protocol dictated. In fact, a blood preservative, EDTA, found on a blood smear at the back gate, indicated that someone might indeed have planted blood that had already been processed in the lab. This innuendo was strengthened by the appearance that 1.5 mm of blood that had been drawn from Simpson was missing. No one had a satisfactory explanation.

The evidence against Simpson seemed damning, but the defense team managed to refocus the jury’s attention on the corruption in the Los Angeles Police Department. In addition, in response to the prosecution’s challenge for Simpson to put on the gloves, he struggled and showed that they were simply too small for his powerful hands. Then Simpson made a clear statement of his innocence, though he was not on the stand. In closing, Cochran disputed the good reputation of the forensics lab, having proven that at the very least, the evidence had been carelessly handled. His mantra, “If it doesn’t fit, you must acquit,” reminded the jury of the prosecution’s fundamental mistake about the notorious glove. Deliberating less than four hours, the jury accepted that something had certainly been wrong with the evidence handling and they freed Simpson with a not guilty verdict. Some of the jurors stated that the prosecution had not made its case.

Yet around America, the case had been an exciting pastime. CNN had covered the trial daily, all day, for nine months, and viewers had been given the impression via a parade of analysts that they were hearing as much as the jury was, so they could therefore make their own determination about Simpson’s guilt or innocence. Many heard for the first time about DNA analysis, blood preservative, evidence corruption, and other items related to the world of law enforcement and legal proceedings. Regardless of how the trial turned out, they believed they could judge for themselves what had occurred on the night of the double homicide. Despite the human tragedy involved, the entertainment value was clear and television ratings went through the roof. Some of the participants who had been nonentities were now celebrities, and some fifty books were offered to the public, many becoming bestsellers.

Yet Simpson was not finished. In 1997, he went through a civil trial, with lower standards for the burden of proof, and was found liable for both killings. More evidence against him was introduced, including the fact that he owned a pair of Bruno Magli shoes—the same brand that had left a bloody footprint at the scene. The verdict came as no surprise and those around the country who believed he had murdered his wife found some satisfaction in the order for him to pay the victims’ surviving family members $33.5 million, although he never did. Despite this verdict, he was a free man.

During this proceeding, DNA analysis had sustained some damage, and prosecutors in particular had noted the difficulty of presenting such complicated science to juries. It might as easily hinder as help their cases. Nevertheless, as evidence goes, there was little that was as powerful as a strong DNA match, and something was on the horizon that would pressure them to present it, anyway. Juries would soon come to expect DNA evidence, even demand it where none was present. And that would be the result of the media’s power. News television had brought Simpson’s trial into millions of homes, educating viewers about legal proceedings and expert witnesses. It would not be long before another type of programming would make lay people believe they now understood what the Simpson investigation had been all about.

PUBLIC INTEREST

In 1998, the FBI launched the National DNA Index System (NDIS) a centralized computer database that could link to DNA databases from other criminal justice agencies around the country. It was the capstone of the Combined DNA Index System (CODIS), which used a multilevel software package designed to facilitate computerized cross checks. All states now had profile databases of specific types of convicted felons, and the FBI’s CODIS was a vast DNA profile index to which participating labs could submit samples for electronic comparison. Besides the Convicted Offender Index, CODIS also relied on the Forensic Index, which contained DNA profiles from biological crime scene evidence. During the initial experimental phase over a three-year period, the FBI used the system to link nearly two hundred crime scenes to felons.

A search on a database that used only a crime scene specimen and turned up a match became known as a “cold hit,” and such searches solved both recent and past cases. Although VICAP was not operating at its expected efficiency because the forms were complex and few jurisdictions were sending information, many cases once believed lost causes were getting solved. Fingerprints from years earlier and DNA from cases with preserved biological evidence were matched to convicted felons.

As the decade, century, and millennium turned, the FBI had acquired more than 65 million fingerprints for AFIS, and had merged its firearms database with that of the BATF to create the National Integrated Ballistics Network. Having comprehensive collections improved identification, but even with improving technology, not everyone took advantage. Yet law enforcement was about to come under the closest scrutiny it had ever endured, for both the better and the worse.

In October 2000, a television series began on the CBS network on Friday evenings, featuring a crew of crime scene investigators on the night shift in Las Vegas. Thanks largely to the exposure received on evidence analysis in the Simpson trial, as well as coverage of other high-profile murders during the 1990s, the television audience was primed and ready for just such a unique series, with all its gore, high-tech equipment, and intrigue.
CSI: Crime Scene Investigation
had a quiet debut, but by the following year, when people the world over watched in horror on September 11 as terrorists flew planes into the Pentagon and New York’s World Trade Center, the series had become a phenomenon. Suddenly crime scene investigation became the sexy new topic about which people wanted to know more, and many colleges and universities created programs to catch budding young minds determined to become profilers, investigators, or forensic scientists. Despite the show’s inaccuracies, including making evidence handlers into detectives and showing science as a way to get certainty, it spun off two more series in other cities and made forensic science appear to be law enforcement’s ultimate weapon.

We might wonder what Lacassagne, Locard, and Vidocq would have thought had they only known how their efforts to get attention for their budding science would one day make it so firmly entrenched in the courtroom and such a mass-market fixation for the public. In some ways, they would have been gratified that science had come so far and made such enormous contributions, but in others, probably horrified. As science blended with fiction, the glittery world of the imaginary CSIs and technology-savvy scientists often misinformed viewers, who were part of the pool of potential jury members. This state of affairs would no doubt have been as annoying to the early pioneers as being misrepresented by journalists from their own time.

Indeed, it disturbed their successors. By 2005, “the CSI Effect” was being debated among scientists and attorneys alike, alarming many staunch members of the American Academy of Forensic Sciences, now more than six thousand members strong, and giving a forum to amateurs who offered only junk science. The dumbed-down world of television forensics was viewed as a threat to the many gains that forensic science had made across two centuries, but on the other hand, the phenomenon inspired innovations as well. Let’s give the men who started us along this road their due and examine with eager anticipation what the future of forensic science may hold.

THIRTEEN

INNOVATION

The murder had just occurred moments ago, and the police responded immediately. They figured the perpetrator was cornered, since there was no way out of the building. They spread out to protect all exits and wait for him to emerge. But no one came out. Reinforcements arrived and several officers entered the building. They looked everywhere, turned everything over, opened all the closets, and searched all the rooms. The place was small, with nowhere to hide. But after three hours with no results, as impossible as it might seem to not catch him, they knew he’d gotten away.

But in fact, the searchers had passed right by him, so close they might have touched him. He bided his time, waiting until they gave up, called off the search, and filed out. He smiled to himself and silently thanked the scientists who’d made it possible for him to leave the building undetected. He could do this again, if he liked, and again, and again. No one was going to find him. Once outside and away from the place, he removed his secret weapon: an invisibility shield.

That’s not science fiction. Researchers in both England and the United States are already developing the mathematics and “metamaterials” that they believe will accomplish it. Metamaterials can be tuned to bend electromagnetic radiation in any direction, so a veil or “cloak” made of them that’s tuned just right will not cast a shadow or reflect light. Electromagnetic radiation would simply flow around it, and people who looked at the veil would fail to see it, believing they were looking through it.

It’s no surprise that the Pentagon’s Defense Advanced Research Projects Agency supports this research, because there are obvious military applications, but like anything else that humans develop, sometimes it’s out there before we examine the implications. Imagine what a criminal might do. Thus far, scientists haven’t been able to engineer it, but the theory’s in place. It may be only a matter of time before it’s accomplished, especially for scientists who want it badly enough. Some predict it will occur within a year.

Hopefully, as they develop the invisibility cloak, they’ll also invent a way to detect it, if needed. But then, it wouldn’t be a real invisibility cloak.

The future of forensics will benefit from areas of science not yet known to be relevant but that have potential. It takes innovative minds to see new connections, such as the vision those early scientists possessed who foresaw what could happen from their input into the legal system. To develop similar foresight today, like them, we must see beyond the obvious and anticipate new research directions, but also note potentially harmful situations.

That’s what happened during the 9/11 crisis. Some 2,749 people died at the World Trade Center, Pentagon, and in Pennsylvania during the terrorist attacks on U.S. soil. Since many had been disintegrated by fire or were in small pieces scattered around the area, the task of identifying them was daunting. No agency in the world was prepared for the magnitude of such a task, and while the goal of identifying every single part of a human being was impossible, the many public and private agencies that came together tried as hard as they could to identify whomever they could. When the process was suspended in 2005, they had identified nearly 1,600. In some cases, they had to devise new techniques or new ways to process DNA more quickly.

The Bode Technology Group from Virginia, the largest DNA testing company in the country at the time, worked with the medical examiners on site. Technicians found they had to work at the time with only bone fragments, which do not yield easily to DNA analysis, and less than 40 percent of more than 12,000 fragments that went through an initial screening provided useful information for identification purposes. Bode looked into an alternative, and one process involved using decalcification to isolate the DNA, which raised the success rate. Another involved developing multiplex short tandem repeat systems, which included testing on the Amelogenin locus for gender identity. Amelogenin is the smallest of the STR markers, with about 115 base pairs. To meet the challenge, the company designed a way to make the tests more sensitive and appropriate for smaller samples.

In addition, Orchid Biosciences in New Jersey, which had done a lot of paternity testing, also made a contribution to the technology. They were using a specific type of stand-alone genetic marker and were asked to use it for identification of remains. Sometimes the only marker derived from a sample was Amelogenin, and on those samples, the company used its genetic test for genotyping information. They were able to find tissue samples from different locations around the affected area that matched one another.

Progress in forensic science is now heavily supported, and as fast as investigators can apply new discoveries in the future, that’s how quick will be the advance of forensic science. As increasingly more people become educated in this field, more visionaries are likely to emerge. They may not have to fund their own projects, as some early pioneers did, but they will possess the same driving curiosity to apply technologies that can make forensic science so astonishing. Among the inventions or developments we may see in the future are the following.

Nanotechnology, the science of small things, is the up-and-coming project in science. Nanotechnologists manipulate tiny structures that would have to be expanded one thousand times just to be visible with an optical microscope. Because of their miniscule size, they can be injected into the bloodstream or absorbed through skin, and carbon nanotubes have the potential to diagnose and treat cancer, control the delivery of a drug, and even create biomechanical computers. While not directly forensic in its application, the possibility exists that this technology could enter into cases of intentional poisoning, both as a lethal substance and a means for diagnosis. Nanoparticles, the size of millionths of a millimeter, are already present in large numbers in the air from natural sources and from vehicle exhaust emissions, rubber, and copier toner. They’re being considered in other applications, such as the manufacture of clothing, purifying contaminated ground, or becoming miniature security sensors.

Our current state of knowledge about the toxicology of nanoparticles and nanotubes is primitive, but experts suggest that nanoparticles may have negative effects at their point of entry into a person’s body. Scientists have also observed how they travel to the central nervous system and ganglia by traveling along the axons and dendrites of neurons. Thus, nanotoxicology, which evaluates nanostructures and devices, is a developing discipline. If drugs can be delivered via nanotubes, considering the history of homicide and its intimate association with poison, it’s clear that what scientists herald as an amazing new technology could become lethal—and difficult to detect.

To go along with this technology, a revised version of the atomic-force microscope, used for minute-scale measurements, is now one hundred times faster than its previous model. That could make it possible with these membrane-based probes to observe complex molecular interactions.

On a larger scale, but just as exciting, virtual imaging can produce a 3-D image of an object, which means pathologists can use it for certain autopsies without having to cut into a body. To get an overview of it for detecting damage of organs and muscles, they can employ a combination of CT scans and magnetic resonance imagining (MRI). In some places, it’s already being done and as its benefits become better known, and it’s viewed as more practical and cost-effective, it will likely be made available to busy morgues and hospitals. In addition, the autopsy photos will be less gruesome for juries, and there’s little chance of inadvertently destroying forensic evidence inside the tissues, because there’s no cutting. In addition, the digitized images can easily be stored or sent to other pathologists for consultations. It’s a welcome innovation.

Japan is the leader in biometric identification. They’re using palm-vein recognition technology in banks. The machines shoot a beam of light through a customer’s hand, and the blood absorbs it, casting shadows that can be mapped. Customers are then filed via their personal vein map, and to remove money from their accounts, they have to allow their palms to be scanned. This technology could help stem identity theft and fraudulent bank transactions, as well as have other applications not yet envisioned.

In the area of deception detection, psychiatrist Lawrence Farwell is already using “brain fingerprinting,” and claiming that it is 99.9 percent accurate. Since the brain records all human experiences, it will recognize that which it already has processed, and Farwell’s device supposedly measures the presence or absence of that knowledge, including a crime scene. Similar to how a polygraph is used, the operator monitors a suspect’s electrical activity via a headband equipped with sensors while the person is exposed to “prod” words or images, both relevant and irrelevant to the crime. If his resulting brainprint shows that he (or she) recognizes the relevant stimuli—a spike called a MERMER (memory and encoding related multifaceted electroencephalographic response) indicates that he has a stored memory. The absence of such a spike indicates that the person was never there. A flaw, supposedly taken care of with proper wording and a substantial amount of material about the supposed behavior in the crime, is that if a person had been at the scene but had not committed the crime, his brain might show a spike, thereby falsely implicating him. Like the polygraph, the threat of a machine that’s able to detect deception has triggered confessions. As a science, it remains controversial, but will probably improve. Many parties, from the military to research psychologists to attorneys, are watching the progress of this device.

In another realm, Logicube, Inc. in California has produced CELLDEK, an information extraction device to use on cell phones and PDAs. Reportedly, it can access data from 90 percent of all North American devices. Thus, police can process cell phones and PDAs at a scene rather than sending them to labs to await the data extraction there. CELLDEK does not alter the data, and it offers information on calls made and received, the time and date, the internal phonebook, lists and memos, and even deleted material.

Among other developments on the horizon are such ideas as enhanced computer tomography for getting images from the skulls of John and Jane Does. In 1999, for example, when the dismembered remains of a woman washed onto a river’s bank in Wisconsin, the skin had been peeled off her fingers and face to prevent identification. The police were loathe to subject the skull to the typical methods of forensic art, for fear of destroying evidence, so they asked the Milwaukee School of Engineering’s Rapid Protoyping Center to try a technique that would yield a three-dimensional model. It took about thirty hours, but from CT scans of the head, they were able to make a computer replica and then a sculpture from thousands of thin layers of paper. This way, they could accurately render the facial features without removing soft tissue. Once that was achieved, a forensic artist took it from there and applied the usual techniques. The resulting image got an identification, which led to an arrest and conviction. In 2000, this process had never been done, but once someone in law enforcement considered how it might be, it was just a matter of engaging the scientists to apply the technology in this new way.

Speaking of computers, data carving is the process of extracting a collection of data from a larger data set. Digital investigations generally involve this procedure when experts analyze the unallocated file system space. However, the results of the existing technology often produce false positives, and thus an investigator must test each of the extracted files by opening them in an application. Computer experts wish to be able to design and develop file-carving algorithms that identify more files with better time-saving procedures and a reduced number of false positives—preferably none. In fact, one computer convention ran a contest to challenge attendees to come up with such a method. More such “games” may generate new ideas in many different areas.

Many scientific discoveries over the course of history, when applied to criminal investigation, have dramatically shifted how crimes get solved and prosecuted. There’s good reason to believe we may yet see plenty of dramatic applications in the future, so we should encourage both scientific groups and law enforcement groups to ponder possibilities. But we must also take care to watch for the harm that new ideas may yield. That means being ethically accountable.

ETHICS AND SELF-POLICING

In South Wales, Britain, in 1988, a twenty-year-old woman was fatally stabbed, and with no leads, the case went cold. In 2000, with new technology in mind, detectives decided to go over her apartment once more to look for minute items of evidence that might have escaped them the first time. They were pleased to locate several tiny droplets of blood on which they could use a DNA test, and did. By this time, Britain had a national DNA data bank, so they ran the samples. While they had no cold hits, they did find a DNA profile that was a close match—for a fourteen-year-old boy who was not yet even born at the time of the murder.

However, he had relatives who’d been alive then, so the police ran DNA tests on some of them and found the match they were looking for: Jeffrey Gafoor, on the boy’s father’s side. Gafoor confessed, and the case was covered in the news as a “kinship analysis.” Given its success, law enforcement believes that this approach will be utilized more often, especially in light of resistance to requiring the entire population to provide samples for a universal data bank. Considering studies that indicate that the chances of becoming a criminal rise when a close relative has committed a crime, the idea that DNA profiles might point down a specific path not yet recorded may look like a real boon for law enforcement.

Yet it also raises the red flag of potential civil liberties violations, since a person’s privacy can be invaded through a mere association with someone whose DNA is available to the police. In Britain almost any offense allows police to collect samples for the data bank, and the pressure is growing in the United States to expand the DNA data banks under similar conditions. In addition, there are fears that certain populations, notably blacks, Hispanics, and the economically deprived, may take the greatest hit and thus be the most vulnerable.