Validity of DNA Testing Upheld in Assault Case : Courts: In precedent setting decision involving conviction of Westminster man, jurists rule genetic fingerprinting is ‘highly reliable and relevant.’

In a decision that could have a statewide impact on the admissibility of DNA test results in criminal and civil courts, the state’s 4th District Court of Appeal upheld the attempted rape conviction of a Westminster gardener that was based almost entirely on DNA testing.

The court ruled Tuesday genetic fingerprinting had gained sufficient credibility in the scientific community that it should now be considered “highly reliable and relevant.”

In making their decision, the jurists rejected the arguments of a defense attorney for Frank Lee Soto, 34. The attorney had argued that the method that was used to calculate the probability of a DNA match in the Soto case is still being debated by scientists and so should not have been admitted as evidence.

But the jurists argued in their decision that the method used in Soto’s case, the one most commonly used by California laboratories, is now accepted by most geneticists.

“To allow a ‘minor academic debate . . . to snowball to the point that it threatens to undermine the use of it in court’ is throwing the baby out with the bath water,” the jurists wrote.

“Soto (argues that) the mere existence of ‘two sides’ in the scientific discussion means the whole subject must be excluded. We cannot agree; if that were literally true, no scientific evidence could ever be admitted.”

Soto was sentenced to three years in state prison by Orange County Superior Court Judge Jean H. Rheinheimer for the attempted rape of a 79-year-old woman who lived in a mobile home next to him. The woman told police a masked man with a knife forced his way into her home and assaulted her in her bedroom. She suffered a stroke after the attack and was unable to testify at the trial. There were no other witnesses to the assault.

Authorities said DNA (deoxyribonucleic acid) taken from semen found on her bedspread matched that of Soto, a point that was debated at length during the criminal trial and before the appellate court. DNA is found in blood, semen and tissue, and it carries a person’s unique genetic coding. Genetic fingerprinting has also been used to determine paternity.

During Soto’s trial, prosecutors called on experts who testified that the chance of anyone else but Soto being the source of the DNA evidence was one in 189 million. But defense attorneys called three other scientists who gave a range from one in 71 to one in 39,000 based on another method of calculating the probability of a DNA match.

Soto’s defense attorney Richard Schwartzberg argued that given the lack of agreement over the calculations, the DNA evidence should not have been admissible.

Schwartzberg said the ruling is troubling because it means that someone like his client, who has always maintained his innocence, can be sent to prison on the basis of one disputed piece of evidence.

“This will be too powerful for juries,” Schwartzberg said. “We as a society have become too technology-oriented. It’s to the point where if scientists tell a jury that black is white, there’s a good chance they’ll believe them.”

He said he plans to appeal the ruling to the state Supreme Court.

Supervising Deputy Atty. Gen. Frederick R. Millar Jr. challenged the notion that the ruling did anything other than give prosecutors a guaranteed opportunity to introduce legitimate evidence that up until now could be excluded by judges.

“This is not scary evidence,” Millar said. “It provides valid evidence to establish guilt. There is not a risk here of an innocent person being falsely convicted.”

Before this latest ruling, trial judges around the state have been deciding on a case-by-case basis whether to allow DNA test results into evidence and what kinds of probability calculations were acceptable. In most cases trial judges had accepted DNA evidence, though not in all, Millar said.

The attorneys disagreed about the potential impact of the appeals court ruling on California’s lower courts.

Although they acknowledged that the ruling creates a legal precedent, they disagreed on whether lower court judges are bound by the ruling.

Millar said that the recent ruling overrides a 1992 1st District Court of Appeal decision that DNA test results should not be admissible in court. That ruling had followed a 1991 2nd District Court of Appeal ruling that had said the opposite--that DNA testing was acceptable as evidence in court.

The ruling in the Soto case is based on the very latest scientific evidence, and should have the force of law statewide, Millar said.

“Until and unless another appellate court comes along with new scientific evidence, the Soto case should be binding,” he said.

But Schwartzberg said judges can still choose between the different appellate court decisions on DNA that have been handed down since 1991. Only a state Supreme Court decision, he said, will settle the matter.

The attorney will file a petition with the state Supreme Court to hear the case by mid-January.