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PERSPECTIVE ON DNA TESTING : It's Scientific Fact, Not Court Fiction : Matching blood samples through genetic markers is reliable, and can prove innocence as well as guilt.

October 07, 1994|PAUL MONES | Paul Mones is a defense attorney and author in Santa Monica. His book "Stalking Justice," which concerns the Timothy Spencer case, will be published next year by Pocketbooks/Simon & Schuster. and

From the day O.J. Simpson was arrested, we have been barraged with arguments concerning DNA fingerprinting and its meaning to criminal justice. The tenor of this debate has led many to conclude that the technology is as scientific as a Ouija board and not much more precise than a divining rod. For the record, genetic fingerprinting is a well-established, reliable science that has enjoyed the support of scientists throughout the world and has been admitted in many courtrooms. Unfortunately, those advocating its use have been drowned out by its adversaries.

There is a seemingly mad scramble to cast as much doubt as possible on this remarkably accurate tool for placing perpetrators at the scene of a crime. For example, in a nationally televised interview aired soon after the commencement of the Simpson preliminary hearing, one of the nation's best-known defense attorneys pronounced that DNA fingerprinting was a new and untrustworthy science. This myth has been repeated until it has regrettably gained a life of its own.

Some commentators would have the public believe that the technology is inherently biased, weighing the odds so heavily in favor of the prosecution that every time it is used, a match is found and the defendant convicted.

Such assertions are erroneous and nonsensical. They also ignore the tremendous promise that DNA fingerprinting holds for both victims of violent crime and those falsely accused and wrongly convicted.

Because California courts have not yet fully accepted DNA fingerprinting, many have inferred that DNA testing has not gained a foothold anywhere else. Not so. For example, the experts paraded on television have ignored the case of Timothy Spencer.

Spencer was convicted in 1988 for the rapes and murders of four Virginia women, solely on the basis of a DNA match between his blood and crime scene semen samples. (Coincidentally, Spencer's defense team had the samples independently tested by Cellmark Diagnostics, the same lab retained by Simpson's prosecutors). Spencer's conviction was upheld by the U.S. Supreme Court. This was the first murder conviction in U.S. history based solely on DNA fingerprinting. Also, as a result of Spencer's arrest, a man who had been charged with a related rape-murder was released after serving five years in prison.

What is most disturbing about the drift of the present controversy is its obsessive focus on the potential misuse of DNA to convict an innocent man. Why not see the other side? DNA will help to exonerate, not convict, an innocent person. Moreover, it seems very odd to suggest that those of us who have dedicated our lives to championing the rights of the individual care little for the power of this technology to let wrongly convicted people, like Frederick Rene Daye, go free. Daye, who was convicted in 1984 in San Diego Superior Court for rape and kidnaping and spent 10 years in prison, was freed last month after DNA tests proved his innocence.

The special appeal of DNA testing is its impact on cases of sexual assault. In actions where there are neither eyewitnesses nor fingerprints, the justice equation boils down to the victim's word against that of the accused. DNA fingerprinting offers an invaluable tool for rendering more clearly the issue of perpetrator identity in these very sensitive, troubling cases.

Contrary to what has now become gospel, DNA fingerprinting is not new. The much-discussed RFLP test being used to compare Simpson's blood to samples from the crime scene was first used in 1978 to identify differences in DNA structure. One of its first practical applications was the study of the genetic structure of sickle cell anemia. Today, the basis of this genetic analysis is at the heart of amniocentesis. The PCR test has an equally impressive lineage; it won its creator the Nobel Prize.

And while discussion does continue over the calculation of the odds in genetic fingerprint identification, a deep schism does not exist in the scientific community over the validity of the procedure itself. There are close to 100 articles on DNA fingerprinting in the scientific literature and only about half a dozen are critical of the procedure.

Because scientists and technicians are mortal human beings, there will inevitably be errors. Mistakes, however, are not reason to abandon the technique. And when such problems arise, especially in a highly publicized case, the adversary process will undoubtedly ferret out even the most minor miscalculation.

We cannot and should not run from the future. DNA fingerprinting is a tool that can be instrumental in unearthing the truth, justice's goal.

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