COLUMN ONE : DNA on Trial as Evidence : ‘Genetic fingerprinting’ has been embraced as a revolutionary advance in law enforcement. But some courts are beginning to have doubts.

When police investigated the bloody scene of a murder at the Top Hat Burger Palace in Ventura in February, 1988, they could find no fingerprints that might have identified the killer. But what they did find served them just as well.

Scattered about the scene were 62 strands of long dark hair that authorities carefully placed in envelopes and sent to a crime laboratory. That telltale discovery led to the conviction of Lynda Patricia Axell for the fatal stabbing of a restaurant employee in what police said was a desperate attempt to steal money to support her addiction to rock cocaine.

Axell was the first person convicted in California with evidence based on DNA testing--a revolutionary technique in which the genetic makeup of a suspect is matched with hair, blood, semen or human tissue left at a crime scene.

While the use of “genetic fingerprinting” has been widely heralded as a crime-solving tool, it is now under intensified legal attack. The Axell case, now before a state Court of Appeal, is set to provide the crucial test of whether DNA tests are reliable enough to be admitted as evidence in California courts.

Genetic fingerprinting was developed in 1985 in England, where it was used to solve a murder case described in Joseph Wambaugh’s book “The Blooding.”

DNA typing spread quickly to the United States, bolstered by scientific data indicating that the chance of two people showing the same DNA pattern are extremely remote--perhaps one in a billion.

By recent count, DNA evidence has been used in more than 400 cases in at least 38 states. In California in January, 1989, then Atty. Gen. John K. Van de Kamp gave prosecutors the go-ahead to use DNA test results in criminal trials.

Although such tests met little resistance at first, some courts recently have ruled against their use. Appellate courts in eight states have upheld DNA test evidence, but in recent months, courts in Massachusetts, Arizona and Santa Ana have barred use of such evidence.

Critics say that while DNA testing is sound in theory, it may not be sound in practice. In individual cases, they say, the reliability of tests may be undermined by faulty procedures. They warn that juries may be swayed by a false sense of infallibility from a new and impressive-sounding scientific process.

“This technique, while very promising, still needs the bugs worked out,” said William C. Thompson, a lawyer and professor of social ecology at UC Irvine and co-author of several critical studies on DNA testing. “There is considerable less certainty about it than the promoters have claimed,” he said. “At best, this evidence may be presented in a misleading manner. At worst, an innocent person may be convicted.”

Axell’s lawyer, Sharon M. Jones of Ventura, says it is unfair and unrealistic to expect juries to weigh conflicting claims by scientific experts over the reliability of the technique. “The problems of DNA testing are very complex and hard to get across to jurors,” said Jones. “Until the scientific community can reach a consensus, this issue should not be in the hands of a judge or jury.”

Law enforcement officials are staunchly resisting the attack on genetic testing, defending what they see as a solidly reliable and highly promising weapon in the war on crime. Not only can the technique conclusively identify murderers, rapists and other violent offenders who leave their genetic calling cards at the scene, it also can be used to clear the innocent, officials contend.

“DNA evidence has two strengths,” said Deputy Atty. Gen. Robert M. Snider, representing the state in the Axell case. “It has a very strong power of identification and, used in conjunction with other physical evidence, can (prove) that a person is indeed guilty. But equally valuable is its power to exonerate a suspect. . . . I see it as a very fair evidentiary tool.”

The technique draws strong support from some experts in the field. “Unless the work in a particular case is very poorly done, I see no reason why it should not be admitted as evidence,” said George F. Sensabaugh, chair of the Department of Biomedical and Environmental Health Sciences at UC Berkeley. “The procedures used are well accepted in both the general scientific community and the forensic science community worldwide.”

Adding to the debate are concerns that DNA testing presents a threat to the right of privacy. California is one of 12 states that store DNA samples from convicted offenders in data banks for potential use in future cases. Officials expect to receive 10,000 such samples annually in the California facility, but are awaiting additional funding before they can begin the DNA-matching process.

Civil libertarians worry about the long-term implications of storing genetic codes. They ask whether someday such data might be used to determine whether individuals are carriers of AIDS or some other disease, or are not genetically related to their parents, or have genetic abnormalities that--in theory at least--may incline them to violence.

“Law enforcement has fallen head over heels in love with this, and when you do that, you may not always make the most rational decisions about how to use a powerful new tool,” said John M. Crew of the American Civil Liberties Union of Northern California.

State officials reply that from the start, Van de Kamp and other authorities who supported the technique have been fully mindful of privacy implications. Safeguards to prevent abuse were imposed under a 1989 law that authorized development of the California data bank, officials say.

“The DNA information we get can be obtained only for law enforcement purposes and released only for law enforcement purposes,” said Jan Bashinski, manager of the state Department of Justice DNA laboratory in Berkeley.

DNA evidence proved critical in the prosecution of the 36-year-old Axell in the killing of George White, 63. DNA extracted from hairs found at the scene matched DNA patterns obtained from a sample of Axell’s blood, according to tests performed by Cellmark Diagnostics, a private Maryland firm that specializes in the field. Cellmark said there was only one chance in 6 billion that someone else would register the same genetic components in a DNA test as Axell.

Axell denied that she had been at the crime scene, pleaded not guilty and challenged the use of DNA evidence. Ventura County Superior Court Judge Lawrence Storch heard 13 days of testimony from experts on both sides and ruled the evidence admissible. In a non-jury trial, the judge found Axell guilty of murder and attempted robbery and sentenced her to 25 years to life in prison.

While there was other evidence against Axell (relatives quoted--and then recanted--incriminating admissions by the woman), Storch concluded that “without the DNA test result, there was not enough to convict” Axell.

Axell’s appeal is expected to be argued before the state Court of Appeal in Ventura this summer, with a decision likely by the fall. The central issue before the court is whether DNA test procedures are sufficiently established and reliable for their results to be used as evidence.

A state Supreme Court ruling in 1976 in the case of People vs. Kelly set the standard for determining the admissibility of evidence from a new scientific technique: The new process must receive “general acceptance” from scientific experts in the field, and correct scientific procedures must be used in individual cases.

Attorney Jones contends that such DNA evidence has been rushed into the courtroom and often accepted with only cursory examination. A closer look at testing procedures reveals that they have not yet gained sufficient acceptance to warrant use of DNA evidence in court, she said.

Some experts agree. Thompson and Simon Ford, a molecular biologist at UC Irvine, warn that DNA samples taken at a crime scene may become contaminated by bacteria, dye or dirt, or degraded by age, heat or other environmental factors. As a result, DNA prints of different individuals may appear quite similar--or prints from the same individual may appear different, they say.

Thompson and Ford also question the calculations that are used by laboratories to show the probability that someone else might have the same genetic pattern as the suspect. To arrive at these figures, the labs analyze blood samples--such as those taken at a blood bank--to determine the frequencies of various genetic traits within racial groups. Critics say that such population data bases may be too small, thus overstating the odds against error.

The two scientists cite a New York case in which a testing firm employed by the prosecution estimated the frequency of a suspect’s DNA pattern as one in 100 million--but a defense expert, recomputing the probability of a match, set the frequency as only one in 78. Also cited by the two experts was a proficiency test administered to private firms that perform DNA laboratory tests. Given a jumble of blood and semen samples to analyze and match, one firm made one error in 44 sample matchups, and another firm was wrong in one of 50 sample matchups.

Marjorie Shultz, professor of law at UC Berkeley, raises other concerns about DNA evidence. Among other things, she observes that there might be an innocent explanation for a match between a suspect’s DNA and tissue found at a crime scene: An individual may have been at the scene but not have committed the crime, or a frame-up might be concocted by planting tissue at the scene.

Shultz also warns that jurors may be too easily influenced by expert testimony from scientists claiming astronomical odds against the possibility of testing error. More emphasis, she said, must be placed on a close examination of testing procedures and statistical analysis before DNA evidence is placed before a jury.

“We need to be careful to check every link in the chain,” said Shultz.

Last January, Massachusetts’ highest court reversed the conviction of a man charged with raping a handicapped 14-year-old girl. The court found that the DNA testing process used in the case had not won general acceptance and that the genetic evidence linking the suspect with semen found on the victim’s clothing was improperly admitted at the man’s trial.

A Superior Court judge in Santa Ana dismissed charges last month against a defendant in a multiple rape case, concluding that prosecutors had failed to demonstrate the reliability of DNA evidence against the man. Similarly, a trial judge in Yuma, Ariz., citing the difficulty of choosing between conflicting expert opinions on the issue, concluded there was not yet general scientific agreement on its reliability and refused to admit DNA evidence against a murder defendant.

In response to such doubts, state prosecutors and other defenders of DNA testing cite what they say is a broad range of scientific support for the reliability of the technique. Even if a test proves faulty in an individual case, they say, that should not lead to a sweeping ban on genetic fingerprinting. Juries should be allowed to hear such evidence and decide for themselves how much weight to give it, they say.

To date, there is no record of a defendant being wrongly convicted on the basis of DNA evidence, authorities say. In California, DNA tests have helped clear defendants in at least three cases. In England, where the technique has been in much wider use, London police recently reported that in 28% of over 1,000 cases using DNA evidence, tests cleared suspects rather than incriminating them.

DNA test evidence has won favorable rulings by state appellate courts in eight states. In one noted federal decision, a U.S. magistrate in Ohio, after a lengthy review of the process, ruled last November that genetic testing was generally accepted by scientists and that DNA evidence could be used in the trial of members of a Hells Angels motorcycle club for conspiring to kill a rival gang member.

Often cited is a study published last summer and presented to Congress by the federal Office of Technology Assessment, which surveyed hundreds of academicians, officials and other experts and concluded that the “molecular and genetic principles underlying DNA techniques are solid and can be successfully applied to forensic casework.”

“Many of the world’s foremost experts on molecular biology and genetics have testified to the reliability of DNA testing,” said Frederick R. Millar, a state deputy attorney general and specialist in DNA cases. “Concerns have arisen in particular cases, but overall the reception has been quite favorable.”

Importantly, backers point out, DNA testing can lead to convictions in the most feared of crimes--assaults, rapes and murders in which assailants are likely to leave behind incriminating tissue.

Bashinski, the state’s DNA laboratory manager, underscores the importance of a data bank for use in sexual offenses. “We have serial criminals who strike over and over and over again,” she said. “Being able to search the computer (for a matching DNA code) will allow us to solve many other crimes committed by the same person.”

Alameda County Deputy Dist. Atty. Rockne P. Harmon, another specialist in genetic fingerprinting, stresses that DNA tests in most cases are used to corroborate other evidence against a suspect, thus reducing the possibility that a faulty test could convict an innocent defendant.

“There’s a really simple thing that people overlook in this whole discussion,” said Harmon. “Before we can obtain a DNA sample from a suspect, we have to have a fair amount of information connecting him to the crime. We can’t just jerk people off the street and test them.”

BACKGROUND

DNA, or deoxyribonucleic acid, contains the chemically encoded genetic information that determines an individual’s physical makeup. It is found in virtually every cell of the body and may be extracted from blood, semen, hair, skin or other human tissue. Except for identical twins, the DNA of each person is unique, and that provides the basis for genetic testing in criminal cases, a technique introduced by British scientists in 1985. In such tests, DNA is extracted, then cut chemically into strips, and through a detailed and complex process developed into patterns that roughly resemble supermarket bar codes. Distinctive DNA components of a suspect are compared with those obtained from tissue at a crime scene. But, for legal purposes, an apparent match of DNA components does not serve as an absolute guarantee they came from the same person. To support that conclusion in court, statistical data must be introduced to show the approximate odds of someone else having similar DNA components.