Court weighs fairness of ‘cold hit’ DNA in ’76 case

Several justices of the California Supreme Court suggested Thursday that a defendant’s right to a fair trial is not violated when he is charged with a crime that occurred decades earlier based on new DNA evidence.

During a hearing, the state high court examined a variety of legal issues in so-called “cold hit” cases in which defendants are identified through a search of a DNA database. The case before the court was brought by Dennis Louis Nelson, who was sentenced to life in prison for the 1976 murder and rape of Ollie George, 19, in Sacramento County.

Cara DeVito, Nelson’s lawyer, argued that the 26-year delay in prosecution made it impossible for Nelson to put together an adequate defense because witnesses had died, evidence had been lost and memories faded. Nelson was charged after DNA from the crime scene was run through the state’s DNA offender database. DNA analysis was not available in 1976.

Delays always hurt the defendant, whether or not law enforcement can justify them, DeVito told the court.

But Deputy Atty. Gen. Judy Kaida said many crimes would go unpunished if the court agreed with the defense. Prosecutors increasingly will be bringing charges against defendants for old crimes because the state’s growing DNA database has made it possible to identify more suspects based on stored evidence.

“These old cases are going to be solved,” Kaida told the court.

Chief Justice Ronald M. George suggested that delays might hurt the prosecution equally or even more than the defense.

“Isn’t it sometimes beneficial to the defendant?” George asked.

Justice Marvin R. Baxter observed that a defendant’s constitutional rights are not violated if the defendant’s star witness dies before a trial.

“If there is not government misconduct of some sort, then how can there be a constitutional violation?” Baxter asked.

Nelson’s lawyer also argued that the jury failed to hear the appropriate odds that the DNA “match” was coincidental because he was identified through a database search. Trawling a database involves thousands, even millions, of comparisons. With each comparison, the likelihood of a match to an innocent person rises, according to many statisticians.

The court did not reveal how it was leaning, but one justice suggested that juries might be entitled to hear both the general population probability and the database adjustment. A majority of leading scientists interviewed by The Times endorsed that approach.

Justice Ming W. Chin implied that a database adjustment would have not helped Nelson in any case because the likelihood of a match to an innocent person would still have been extremely remote and involved “astronomical figures.”

The adjustment would be significant, however, in cases where the DNA evidence has degraded and fewer markers were available for analysis.

The court will decide Nelson’s appeal within 90 days.

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maura.dolan@latimes.com