Court Allows Ban of DNA Trial Evidence : Law: State justices refuse to hear case in which appellate panel questioned statistical validity of ‘genetic fingerprinting,’ casting doubt on a number of convictions in O.C. and throughout the state.

In a surprise move, the state Supreme Court on Wednesday let stand an appellate ruling that blocked the use of DNA identification evidence in a criminal prosecution.

The high court action appeared to raise significant new obstacles to the use of “genetic fingerprinting” evidence. But lawyers predicted new efforts would be made to gain admission of such proof by using different scientific techniques.

The court, with Justice Edward A. Panelli dissenting, refused to hear a challenge by prosecutors to an appeal panel ruling last August concluding that statistical methods used in DNA analysis were not yet scientifically reliable.

The appeal panel, ruling in an Alameda County case, did not question the accepted laboratory procedures but said there were doubts about the process used to determine the statistical probability that the genetic evidence left at a crime scene belonged to the suspect.

Last January, the high court had let stand a ruling by another appeal panel in a Ventura County case upholding the use of DNA evidence. The panel in the Alameda case said, however, that more recent scientific data had revealed questions that rendered the DNA evidence in that case inadmissible.

State attorneys appealed to the high court, warning that if the ruling was not overturned, it could jeopardize dozens of convictions obtained at least in part with DNA identification evidence.

Wednesday’s high court action left the two apparently conflicting appellate rulings on the books. But the ruling in the more-recent Alameda case may take precedence among state trial courts.

In Orange County, where at least five defendants have been convicted using DNA evidence and other cases are underway, prosecutors said they must review Wednesday’s court action before determining its local impact.

“I just can’t say at this time what the impact will be, but it may involve going back and reviewing cases,” said Deputy Dist. Atty. Charles J. Middleton, head of the Sexual Assault/Child Abuse Unit of the Orange County district attorney’s office.

Orange County Sheriff’s Lt. Bob Rivas, whose department has an extensive Forensics Science Center where DNA testing is performed, also said officials must also review the decision before determining its impact. The center is one of only a handful of such laboratories in the nation.

Convictions in Orange County where so-called “genetic fingerprinting” was used include the case of Danny Harris, 43, a Buena Park man who was sentenced in September to 153 years in prison for raping 11 women, some of them elderly, while committing nighttime burglaries between 1985 and 1988. Harris’ conviction was based almost solely on DNA evidence.

In March, Frank Lee Soto, 32, of Westminster was convicted of raping a 79-year-old widow. DNA tests linked Soto to semen on the woman’s bedspread, and jurors said the scientific tests swayed their verdict. Soto was sentenced to three years in prison.

State Deputy Atty. Gen. Enid A. Camps called Wednesday’s high court action “a setback, but not the end of the line for DNA evidence.” She said in future cases prosecutors will present additional data showing the methods at issue were scientifically accepted. The state, she said, believed such evidence should be admitted and its value then determined by a jury.

Meanwhile, Camps added, the cases of defendants already convicted on DNA evidence will be reviewed to determine how they might be affected by the ruling the high court let stand.

Alameda County Deputy Dist. Atty. Rockne P. Harmon, a specialist in DNA cases, was disappointed by Wednesday’s action but said authorities will continue to seek admission of such evidence. “Prosecutors are not going to give up,” he said. “I’m confident that in the future the state Supreme Court is going to decide DNA evidence is admissible.”

Walter Krstulja, a forensic consultant to the Los Angeles County public defender’s office, called Wednesday’s action a “positive result,” bringing court recognition of “serious problems” with DNA evidence. But Krstulja said he expected DNA evidence to become admissible when supported by more acceptable statistical methods.

Defense attorney Linda F. Robertson of Burlingame said prosecutors now will face a more difficult task in showing they used accepted scientific procedures in linking a defendant to a crime.

“It was formerly assumed that DNA evidence was all just fine,” Robertson said. “But now there is an emerging trend to question such evidence.”

DNA, or deoxyribonucleic acid, is found in body tissues and fluids and contains the genetic coding unique to an individual. Through DNA analysis, investigators have been able to compare a suspect’s DNA pattern with the DNA found in hair, blood, semen or other substances to show guilt or innocence.

By recent count, DNA evidence has been admitted in more than 400 cases in 38 states. Some courts have barred such evidence, but most that have reviewed the technique have upheld its admissibility, according to the state attorney general’s office.

In the dispute before the court Wednesday, prosecutors used DNA evidence from semen left at the crime scene to convict Ralph Edwards Barney of kidnaping and attempted rape. In a separate Alameda County case raising similar issues, DNA evidence from bloodstains at the scene was used to convict Kevin O’Neal Howard of second-degree murder.

Prosecution experts testified that Barney’s DNA pattern matched the code found in the semen and that the statistical frequency of such a pattern was one in 7.8 million in the black population. Barney is black. Similarly, experts said Howard’s DNA matched the bloodstain and that the frequency of that pattern was one in 200 million in the black population.

A state Court of Appeal in San Francisco upheld the convictions of both men based on other evidence. But the panel, citing reports by the National Academy of Sciences and the journal Science, held that the genetic evidence was inadmissible because of doubts about the way the statistical odds of a DNA match were calculated by the experts.

The panel said that errors in DNA statistical calculations could exaggerate the probabilities linking a suspect to a crime. For example, the court said, if there were an error in Barney’s case, the DNA frequency pattern of one in 7.8 million might actually be only one in 78,000.

Times staff writer Rene Lynch contributed to this story.