[Deathpenalty] death penalty news-----VA., USA

[Rick Halperin]

July 21



VIRGINIA----impending execution

Man facing execution seeks new appeal----Lawyers for Emmett, set to die on
Thursday, will turn to full 4th Circuit


For the moment at least, a clemency petition before Gov. Timothy M. Kaine
is Christopher Scott Emmett's sole hope for escaping execution Thursday.

However, his lawyers plan to ask the full 4th U.S. Circuit Court of
Appeals to rehear a challenge to the lethal-injection procedures used by
Virginia. A panel of that same court turned it down 2-1 earlier this
month.

Emmett, 36, is facing execution for the 2001 slaying of John F. Langley,
43, a roofing co-worker beaten to death with a lamp in a Danville motel
room.

Emmett alleges that Virginia's lethal-injection procedures could lead to
an unconstitutionally cruel and unusual punishment.

On July 10, 2 appeals court judges held that Virginia's procedures were
similar to those of Kentucky recently upheld by the U.S. Supreme Court.
The dissenting judge said there were not enough facts to make such a
determination.

The Virginia Capital Representation Resource Center said Friday that it
planned to ask the full court of appeals to hear the case.

Emmett won reprieves twice last year just hours before scheduled
executions, once from Kaine and once from the U.S. Supreme Court. He will
die Thursday shortly after 9 p.m. unless Kaine or the courts step in
again.

States that use lethal injection use the same three drugs. Critics of
Virginia's procedures say a condemned inmate could be rendered paralyzed
by the drugs, but remain conscious, or regain consciousness, while
experiencing great pain.

Langley's mother, Elizabeth Majors, does not care if the procedure is
painful. She says her son did not have a painless death, and she sees no
reason why Emmett should.

"I want to know that he has suffered . . . just like my son suffered when
he killed him. That's what I want, I want to know that he gets a little
dose of it, too," said Majors, 72, of Gasburg in a recent phone interview.

She said she and her family have suffered because of the two prior
executions that were called off. In both cases, family members were on
their way to the Greensville Correctional Center to witness the execution.

"I can't take much more of it," she said.

"My son's 2 children are hurting, still hurting today because of it. They
get upset every time that thing is canceled. . . . I want to see it done
and over with so this family can have some relief," Majors said.

Since the U.S. Supreme Court allowed the death penalty to resume in 1976,
Danville has sent at least 8men to death row. 3 of them, Johnny Watkins
Jr., Dana Ray Edmonds and Ronald L. Watkins have been executed.

4 other condemned Danville killers, William Ira Saunders, Terry Williams,
Calvin Swann and Percy Levar Walton escaped their sentences, either by
court action or clemency. Swann, who has since died, and Walton had
mental-health problems.

If carried out, Emmett's would be the 102nd execution in Virginia since
1976 and the 4th this year.

(source: Richmond Times-Dispatch)

********************

Execution Set for Thursday


A Virginia inmate who unsuccessfully challenged the state's method of
executing prisoners by lethal injection is scheduled to die Thursday for
beating a co-worker to death with a brass lamp and stealing his money to
buy crack cocaine.

This month, the 4th U.S. Circuit Court of Appeals rejected Christopher S.
Emmett's argument that lethal injection amounts to cruel and unusual
punishment because of the possibility that paralyzing and heart-stopping
drugs could be administered before a drug that renders someone unconscious
takes effect.

The U.S. Supreme Court ruled in April that the three-drug cocktail used in
Kentucky and most other states was constitutional despite a similar claim.
On July 10, the 4th Circuit found that Virginia's protocol is similar
enough to Kentucky's that it would not cause excruciating pain.

(source: Washington Post)






USA:

Detainee's Trial in Military System Begins Today


Nearly 7 years after President Bush declared an "extraordinary emergency"
that empowered him to bring terrorists before military judges, Osama bin
Laden's former driver is scheduled to go on trial Monday in the 1st test
of whether that system can dispense fair and impartial justice.

When Salim Ahmed Hamdan, accused of ferrying weapons for al-Qaeda, enters
courtroom 01-A in a former aircraft operations center, he will face court
proceedings unlike any the United States has seen in decades. They will
unfold before a military commission -- the 1st since the end of World War
II -- with a jury of uniformed officers and rules that give great
deference to the prosecution. Evidence obtained from "cruel" and "inhuman"
interrogation methods is admissible in certain circumstances, as is
hearsay evidence.

Unlike a civilian trial, even if the defendant is acquitted of conspiracy
and material support of terrorism charges, he probably will not be
released. Hamdan has been designated an "enemy combatant" by the military,
a status that prosecutors said would be unchanged by an acquittal even if
international pressure mounts for his release.

The trial in a small, windowless courtroom is a step in the
administration's legal efforts against terrorism. Pretrial hearings last
week gave a glimpse into the workings of the controversial U.S. detention
facility here, with Hamdan testifying that he was abused by his jailers
and with prosecutors saying he was not.

Yet the proceedings are also something of a dry run, a way to test the
long-delayed military system on an alleged low-level al-Qaeda foot soldier
so it is primed for the self-confessed terrorist leaders to come. In line
behind Hamdan at Guantanamo is Khalid Sheik Mohammed, self-proclaimed
mastermind of the Sept. 11, 2001, attacks and other accused planners.

"It's the 1st contested war crimes trial since World War II, so it's
important," Col. Lawrence Morris, the military commissions' chief
prosecutor, said recently. "You're looking at it primarily and
appropriately as bringing Mr. Hamdan to justice, but we're also well aware
that . . . it provides the first opportunity to test and validate this
mechanism."

Whatever the verdict in the trial of Hamdan -- a Yemeni father of 2 whose
lawyers insist was only a hired chauffeur for bin Laden -- opponents of
the commissions have already pronounced them a failure. Human rights
activists and European leaders have long considered the system a legal
sham designed to secure convictions.

"This was supposed to be the premier system for bringing to justice the
masterminds of the worst crime ever committed on U.S. soil," said Tom
Malinowski, Washington advocacy director for Human Rights Watch. "The only
result in 7 years was the conviction of an Australian kangaroo trapper,
who is now free."

He was referring to Australian David M. Hicks, who last year pleaded
guilty to a terrorism charge in the only Guantanamo case to be fully
adjudicated. Hicks was sent to Australia as part of a political deal and
was later released from prison there.

Defenders of the commissions point to layers of due process -- including
the right to appeal a conviction to federal court -- that Congress added
since Bush proposed the panels. Proponents of the new system say people
who committed heinous acts against the United States do not deserve the
constitutional protections of its federal courts.

"I find it ironic that there is this tremendous rush to unfairly discount
a very well-thought-out military system," said D. Hamilton Peterson, of
Bethesda, whose father and stepmother were killed on the hijacked airplane
that crashed in a Pennsylvania field on Sept. 11. "Mr. Hamdan and these
other suspects are getting more due process than any of the people who
were beheaded by the terrorists in Iraq and Afghanistan."

The trial of Hamdan, who faces a maximum of life in prison if convicted,
is unfolding in a different political climate than when Bush invoked
emergency powers after Sept. 11. His directive on Nov. 13, 2001, said
non-U.S. citizens could be subject to commissions, with no judicial review
and no prohibition on evidence gleaned through torture, though it said
they would be treated "humanely."

Bush had hoped for swift justice for captured terrorists, but the process
became mired in legal and diplomatic delays. U.S. officials had to
negotiate with Britain and Australia over detainees from those countries.
And in a lawsuit brought by Hamdan's attorneys, the Supreme Court in 2006
struck down the commission system, ruling that it was not authorized by
federal law and that it ran afoul of the Geneva Conventions.

Congress reacted by passing the Military Commissions Act of 2006, under
which Hamdan is being tried. It banned evidence obtained using torture but
said statements derived from harsh interrogations are allowable if the
judge finds the evidence reliable and relevant. Congress in December 2005
banned "cruel, inhuman, or degrading treatment," but statements made under
such duress before that date could be admissible. Many of Hamdan's
interrogations occurred before the congressional action, according to
court testimony.

Eugene R. Fidell, president of the National Institute of Military Justice,
said that the rules are "really offensive" and that Hamdan should have
been tried in the federal courts. The Justice Department has obtained
convictions in 80 terrorism cases in those courts since Sept. 11,
according to the Center on Law and Security at the New York University
School of Law.

But David Rivkin, a Justice Department official in the Ronald Reagan and
George H.W. Bush administrations, said evidence standards before the
military cannot be the same as in a civilian trial. "The notion that
you're going to obtain 'CSI'-level evidence on the battlefield is absurd,"
he said.

Hamdan's trial will start with questioning of the 13 prospective jurors,
all military officers. At least 5 jurors will be seated, and a 2/3
majority is needed for conviction. The same jury would determine a
sentence.

Though Hamdan, because of his enemy combatant status, may not be released
even under an acquittal, prosecutors insist that Hamdan's trial is
necessary. In addition to securing justice for his alleged crimes, a
conviction could keep him in custody even beyond any official end to the
Bush administration's anti-terrorism efforts. "The government can hold Mr.
Hamdan all the way up until the end of hostilities," John Murphy, a
Justice Department lawyer who is on the team prosecuting Hamdan, said in
court last week. "It could hold him longer if he were convicted and
sentenced beyond that in a commission."

Malinowski said an acquittal would make holding Hamdan "unsustainable."

And it is uncertain whether Hamdan would remain at Guantanamo, since Bush
and both major presidential candidates have expressed a desire to close
the detention facility. Yet it is equally uncertain where Hamdan, who is
in his late 30s, could be sent if released. U.S. officials have expressed
concerns about Yemen's ability to securely hold terrorism suspects.

If Hamdan is convicted, the verdict would automatically be reviewed by a
Pentagon official and then appealed to a military appellate court. His
attorneys could then appeal to the U.S. Court of Appeals in the District
and the Supreme Court -- and could challenge his enemy combatant
designation at each level of review, Pentagon officials said.

Prosecutors indicated they would rely on incriminating statements Hamdan
allegedly made to interrogators in the 2 years after his capture in
Afghanistan in late 2001. An FBI agent testified at a pretrial hearing
that Hamdan admitted being aware of bin Laden's involvement in the Sept.
11 attacks and that he helped the al-Qaeda leader escape after Sept. 11
and after the 1998 bombings of two U.S. embassies in East Africa. Hamdan's
lawyers continued to insist that he was a driver and mechanic who relied
on bin Laden only for a paycheck.

But Hamdan's military lawyer, Navy Lt. Cmdr. Brian Mizer, said the trial
"is going to be deficient. It's going to proceed, but . . . there are
fundamental flaws in this system. I don't know that I can predict an
acquittal."

(source: Washington Post)

************

Death penalty for child rapists risks fatal injustice


The U.S. Supreme Court, in a 5-4 decision last month, struck down a
Louisiana law that imposed capital punishment for those convicted of
raping a child. At the center of this decision was 43-year-old Patrick
Kennedy, an African American man convicted of the brutal rape of his
then-8-year-old stepdaughter. During the course of the investigation, the
victim gave many varied accounts of her assault, at 1st blaming 2
neighborhood youths and only pointing the finger at her stepfather after
several interviews by psychologists working with law enforcement.

The majority decision was delivered by Justice Anthony Kennedy of
Sacramento. The court's newest justice, Samuel Alito, delivered a biting
dissent. Justice Alito's opinion is chilling, not because of its legal
reasoning that states should be allowed to enact laws as they see fit, but
for the fact that he took the position that those who are convicted of
raping a child should be executed, owing to the heinousness of the crime.

The use of capital punishment is founded upon two principles: retribution
and deterrence. The majority found that evidence suggested the death
penalty may not result in more effective enforcement but may indeed add to
the risk of non-reporting. It's a statistical reality that the majority of
sexual assaults on children occur at the hands of a parent, relative or
close family friend. Thus, children may feel pressured not to report the
abuse if there's a likelihood that the perpetrator may face execution. The
idea, then, that capital punishment will act as a deterrent is unfounded,
and the National Association of Social Workers filed an amicus brief in
support of striking down the law for that reason.

As a father, I would be devastated, and would certainly want the
perpetrator punished, if my child was the victim of a rapist. As a father,
I also recognize what Justice Kennedy cited as a principal reason we
should not contemplate executing someone convicted of child rape: Children
fantasize and embellish. They are impressionable, and they're not always
reliable witnesses. There are many documented studies of children showing
that they can be influenced to give false statements. A 2007 study found
that a group of 4- to 7-year-olds was able to maintain a lie about "body
touch" fairly effectively when asked repeated, direct questions during a
mock forensic interview. The children, of course, had not been victims of
"touching" but rather were fed false information, which they incorporated
into their memory as events that actually took place. As Justice Kennedy
noted, the risk that someone could be executed based upon this kind of
false evidence is clearly unacceptable.

Following the issuance of the court's decision, angry politicians,
including the governors of 2 states, vowed to keep writing laws that
condemn child rapists to death, despite the Supreme Court's decision
holding that such punishment is unconstitutional. Additionally, both the
presumptive presidential candidates immediately voiced their disagreement
in no uncertain terms. Republican Sen. John McCain of Arizona called the
ruling "an assault on law enforcement's efforts to punish these heinous
felons for the most despicable crime." Democratic Sen. Barack Obama of
Illinois told reporters there should be no blanket prohibition of the
death penalty for the rape of children if states want to apply it in those
cases.

Ordinarily, we could dismiss these statements as political posturing
during an election year. But there is an ominous ring to these politicos'
statements. Barring unforeseen circumstances, one of these men is going to
be the next president of the United States. It's inevitable that during
four years in office, at least one, and perhaps more, of the Supreme Court
justices will retire. Justice John Paul Stevens is 88 years old, and
Justice Ruth Bader Ginsburg is 75. Both of these justices agreed with the
majority opinion that struck down Louisiana's capital punishment for child
rapists. If the politicians have their way, those who agree with the death
penalty for child rape will be appointed, and the issue will come before a
newly reorganized court. In that event, it's likely the present decision
would be overturned.

According to statistics compiled by the Innocence Project, there have been
218 post-conviction DNA cases overturned in 32 states. 16 of the 218
people exonerated served time on death row. But, as in the case of Patrick
Kennedy, there is often no DNA or other physical evidence with which to
exonerate a defendant whose conviction has been obtained through the
testimony of a child. And for such individuals, execution would thus be
inevitable if the politicians prevail in their efforts.

There is no doubt that the rape of a child is a heinous offense, and the
perpetrator should be punished and removed from society. But the risk of
executing even one innocent individual under laws such as those enacted by
Louisiana and the five other states that have similar statutes is a
travesty of justice that the Supreme Court should have found unacceptable
by a 9-0 vote. That it did not do so should make every thinking American
concerned for the direction of our justice system.

(source: Opinion; Ken Rosenfeld is a criminal defense attorney who has
defended clients accused of 1st-degree murder, sexual offenses and driving
under the influence. Rosenfeld is a graduate of Lincoln Law School of
Sacramento who teaches classes in constitutional law, evidence and
professional responsibility for the American Bar Review----Sacramento Bee)

*************

How reliable is DNA in identifying suspects? -- A discovery leads to
questions about whether the odds of people sharing genetic profiles are
sometimes higher than portrayed. Calling the finding meaningless, the FBI
has sought to block such inquiry.


State crime lab analyst Kathryn Troyer was running tests on Arizona's DNA
database when she stumbled across two felons with remarkably similar
genetic profiles.

The men matched at 9 of the 13 locations on chromosomes, or loci, commonly
used to distinguish people.

The FBI estimated the odds of unrelated people sharing those genetic
markers to be as remote as 1 in 113 billion. But the mug shots of the 2
felons suggested that they were not related: One was black, the other
white.

In the years after her 2001 discovery, Troyer found dozens of similar
matches -- each seeming to defy impossible odds.

As word spread, these findings by a little-known lab worker raised
questions about the accuracy of the FBI's DNA statistics and ignited a
legal fight over whether the nation's genetic databases ought to be opened
to wider scrutiny.

The FBI laboratory, which administers the national DNA database system,
tried to stop distribution of Troyer's results and began an aggressive
behind-the-scenes campaign to block similar searches elsewhere, even those
ordered by courts, a Times investigation found.

At stake is the credibility of the compelling odds often cited in DNA
cases, which can suggest an all but certain link between a suspect and a
crime scene.

When DNA from such clues as blood or skin cells matches a suspect's
genetic profile, it can seal his fate with a jury, even in the absence of
other evidence. As questions arise about the reliability of ballistic,
bite-mark and even fingerprint analysis, genetic evidence has emerged as
the forensic gold standard, often portrayed in courtrooms as unassailable.

But DNA "matches" are not always what they appear to be. Although a
person's genetic makeup is unique, his genetic profile -- just a tiny
sliver of the full genome -- may not be. Siblings often share genetic
markers at several locations, and even unrelated people can share some by
coincidence.

No one knows precisely how rare DNA profiles are. The odds presented in
court are the FBI's best estimates.

The Arizona search was, in effect, the first test of those estimates in a
large state database, and the results were surprising, even to some
experts.

Defense attorneys seized on the Arizona discoveries as evidence that
genetic profiles match more often than the official statistics imply --
and are far from unique, as the FBI has sometimes suggested.

Lawyers seek searches

Now, lawyers around the country are asking for searches of their own state
databases.

Several scientists and legal experts as well want to test the accuracy of
official statistics using the nearly 6 million profiles in CODIS, the
national system that includes most state and local databases.

"DNA is terrific and nobody doubts it, but because it is so powerful, any
chinks in its armor ought to be made as salient and clear as possible so
jurors will not be overwhelmed by the seeming certainty of it," said David
Faigman, a professor at UC Hastings College of the Law, who specializes in
scientific evidence.

FBI officials argue that, under their interpretation of federal law, use
of CODIS is limited to criminal justice agencies. In their view, defense
attorneys are allowed access to information about their specific cases,
not the databases in general.

Bureau officials say critics have exaggerated or misunderstood the
implications of Troyer's discoveries.

Indeed, experts generally agree that most -- but not all -- of the Arizona
matches were to be expected statistically because of the unusual way
Troyer searched for them.

In a typical criminal case, investigators look for matches to a specific
profile. But the Arizona search looked for any matches among all the
thousands of profiles in the database, greatly increasing the odds of
finding them.

As a result, Thomas Callaghan, head of the FBI's CODIS unit, has dismissed
Troyer's findings as "misleading" and "meaningless."

He urged authorities in several states to object to Arizona-style
searches, advising them to tell courts that the probes could violate the
privacy of convicted offenders, tie up crucial databases and even lead the
FBI to expel offending states from CODIS -- a penalty that could cripple
states' ability to solve crimes.

In one case, Callaghan advised state officials to raise the risk of
expulsion with a judge, then told the officials that expulsion was
unlikely to happen, according to a record of the conversation filed in
court.

In an interview with The Times, Callaghan denied any effort to mislead the
court.

The FBI's arguments have persuaded courts in California and other states
to block the searches. But in at least two states, judges overruled the
objections.

The resulting searches found nearly 1,000 morepairs that matched at nine
or more loci.

"I can appreciate why the FBI is worried about this," said David Kaye, an
expert on science and the law at Arizona State University and former
member of a national committee that studied forensic DNA.

But "people's lives do ride on this evidence," he said. "It has got to be
explained."

Concerned about errors

>From her 1st discovery in 2001, Troyer and her colleagues in the Arizona
Department of Public Safety's Phoenix DNA lab were intrigued.

At the time, many states looked at only nine or fewer loci when searching
for suspects. (States now commonly attempt to compare 13 loci, though
often fewer are available from old or contaminated crime scene evidence.)

Based on Troyer's results, she and her colleagues believed that a 9-locus
match could point investigators to the wrong person.

"We felt it was interesting and just wanted people to understand it could
happen," said Troyer, who initially declined to be interviewed, then
cautiously discussed her findings by telephone, with her bosses on the
line.

"If you're going to search at nine loci, you need to be aware of what it
means," said Todd Griffith, director of the Phoenix lab. "It's not
necessarily absolutely the guy."

Troyer made a simple poster for a national conference of DNA analysts. It
showed photos of the white man and the younger black man next to their
remarkably similar genetic profiles.

Some who saw the poster said they had seen similar matches in their own
labs.

But Bruce Budowle, an FBI scientist who specializes in forensic DNA, told
colleagues of Troyer that such coincidental matches were to be expected.

3 years later, Bicka Barlow, a San Francisco defense attorney, came across
a description of Troyer's poster on the Internet.

Its implications became clear as she prepared to defend a client accused
of a 20-year-old rape and murder.

A database search had found a nine-locus match between his DNA profile and
semen found in the victim's body. Based on FBI estimates, the prosecutor
said the odds of a coincidental match were as remote as 1 in 108 trillion.

Recalling the Arizona discovery, Barlow wondered if there might be similar
coincidental matches in California's database -- the world's 3rd-largest,
with 360,000 DNA profiles at the time. The attorney called Troyer in
Phoenix to learn more.

Troyer seemed eager to talk about her discovery, which still had her
puzzled, Barlow recalled. The analyst told Barlow she had searched the
growing Arizona database since the conference and found more pairs of
profiles matching at nine and even 10 loci.

Encouraged, Barlow subpoenaed a new search of the Arizona database. Among
about 65,000 felons, there were 122 pairs that matched at nine of 13 loci.
20 pairs matched at 10 loci. One matched at 11 and one at 12, though both
later proved to belong to relatives.

Barlow was stunned. At the time, such matches were almost unheard of.

That same year, Fred Bieber, a Harvard professor and expert in forensic
DNA, testified in an unrelated criminal case that just once had he seen a
pair of profiles matching at nine of 13 markers, and they belonged to
brothers. He had heard of a 10-locus match between 2 men, but it was the
result of incest -- a man whose father was also his older brother.

Indeed, since 2000, the FBI has treated certain rare DNA profiles as
essentially unique -- attributable to a single individual "to a reasonable
degree of scientific certainty."

Other crime labs have adopted the policy, and some no longer tell jurors
there is even a possibility of a coincidental match.

Soon after Barlow received the results, Callaghan, the head of the FBI's
DNA database unit, reprimanded Troyer's lab in Phoenix, saying it should
have sought the permission of the FBI before complying with the court's
order in the San Francisco case.

Asked later whether Callaghan had threatened her lab, Troyer said in
court, "I wouldn't say it's been threatened, but we have been reminded."

Dwight Adams, director of the FBI lab at the time, faxed Griffith,
Troyer's boss, a letter saying the Arizona state lab was "under review"
for releasing the search results.

"While we understand that the Arizona Department of Public Safety, acting
in good faith, complied with a proper judicial court order in the release
of the nine-loci search of your offender DNA records, this release of DNA
data was not authorized," Adams wrote, asking Arizona to take "appropriate
corrective action."

Arizona officials obtained a court order to prevent Barlow from sharing
the results with anyone else.

But it was too late. After a judge found the Arizona results to be
irrelevant in Barlow's case, the defense attorney e-mailed them to a
network of her colleagues and DNA experts around the country.

Soon, defense lawyers in other states were seeking what came to be known
as "Arizona searches."

'Don't panic'

For years, DNA's strength in the courtroom has been the brute power of its
numbers. It's hard to argue with odds like 1 in 100 billion.

Troyer's discovery threatened to turn the tables on prosecutors. At first
blush, the Arizona matches appeared to contradict those statistics and the
popular notion that DNA profiles, like DNA, were essentially unique.

Law enforcement experts scrambled to explain.

3 months after the court-ordered search in Arizona, Steven Myers, a senior
DNA analyst at the California Department of Justice, gave a presentation
to the Assn. of California Crime Lab Analysts. It was titled "Don't Panic"
-- a hint at the alarm Troyer's discovery had set off.

Many of the Arizona matches were predictable, Myers said, given the type
of search Troyer had conducted.

In a database search for a criminal case, a crime scene sample would have
been compared to every profile in the database -- about 65,000
comparisons. But Troyer compared all 65,000 profiles in Arizona's database
to each other, resulting in about 2 billion comparisons. Each comparison
made it more likely she would find a match.

When this "database effect" was considered, about 100 of the 144 matches
Troyer had found were to be expected statistically, Myers found.

Troyer's search also looked for matches at any of 13 genetic locations,
while in a real criminal case the analyst would look for a particular
profile -- making a match far less likely.

Further, any nonmatching markers would immediately rule out a suspect. In
the case of the black and white men who matched at nine loci, the four
loci that differed -- if available from crime scene evidence -- would have
ensured that the wrong man was not implicated.

The presence of relatives in the database could also account for some of
Troyer's findings, the FBI and other experts say. Whether that's the case
would require cumbersome research because the databases don't contain
identifying information, they say.

Some scientists are not satisfied by any of these explanations. They
wonder whether Troyer's findings signal flaws in the complex assumptions
that underlie the FBI's rarity estimates.

Behind the estimates

In the 1990s, FBI scientists estimated the rarity of each genetic marker
by extrapolating from sample populations of a few hundred people from
various ethnic or racial groups. The estimates for each marker are
multiplied across all 13 loci to come up with a rarity estimate for the
entire profile.

These estimates make assumptions about how populations mate and whether
genetic markers are independent of each other. They also don't account for
relatives.

Bruce Weir, a statistician at the University of Washington who has studied
the issue, said these assumptions should be tested empirically in the
national database system.

"Instead of saying we predict there will be a match, let's open it up and
look," Weir said.

Some experts predict that given the rapid growth of CODIS, such a search
would produce one or more examples of unrelated people who are identical
at all 13 loci.

Such a discovery was once unimaginable.

'Dire consequences'

In January 2006, not long after Barlow distributed the results of the
court-ordered search in Arizona, the FBI sent out a nationwide alert to
crime labs warning of similar defense requests.

Soon after, the bureau's arguments against the searches were being made in
courtrooms around the country.

In California, Michael Chamberlain, a state Department of Justice
official, persuaded judges that such a search could have "dire
consequences" -- violating the privacy of convicted offenders, shutting
down the database for days and risking the state's expulsion from the
FBI's national DNA system. All this for a search whose results would be
irrelevant and misleading to jurors, Chamberlain argued.

When similar arguments were made in an Arizona case, the judge ruled that
the search would be "nothing more than an interesting deep sea fishing
expedition."

But in Illinois and Maryland, courts ordered the searches to proceed,
despite opposition from the FBI and state officials at every turn.

In July 2006, after Chicago-area defense attorneys sought a database
search on behalf of a murder suspect, the FBI's Callaghan held a telephone
conference with Illinois crime lab officials.

The topic was "how to fight this," according to lab officials' summary of
the conversation, which later became part of the court record.

Callaghan suggested they tell the judge that Illinois could be
disconnected from the national database system, the summary shows.
Callaghan then told the lab officials that "it would in fact be unlikely
that IL would be disconnected," according to the summary.

In an interview, Callaghan disputed he said that.

"I didn't say it was unlikely to happen," he said. "I was asked
specifically, what's the likelihood here? I said, I don't know, but it
takes a lot for a state to be cut off from the national database."

A week later, the judge ordered the search. Lawyers for the lab then took
the matter to the Illinois Supreme Court, arguing in part that Illinois
could lose its access to the federal DNA database. The high court refused
to block the search.

The result: 903 pairs of profiles matching at 9 or more loci in a database
of about 220,000.

State officials obtained a court order to prevent distribution of the
results. The Times obtained them from a scientist who works closely with
the FBI.

A 'unilateral decision'

A similar fight occurred in a death penalty case in Maryland during the
summer and fall of 2006.

The prosecutor saw a DNA match between a baseball cap dropped at the crime
scene and the suspect as so definitive that he didn't plan to tell the
jury about the chance of a coincidental match, records show.

Seeking to cast doubt on the evidence, the defense persuaded the judge to
order an "Arizona search" of the Maryland database. The state did not
comply.

After the defense filed a contempt-of-court motion, Michelle Groves, the
state's DNA administrator, argued in court and in an affidavit that, based
on conversations with Callaghan at the FBI, she believed the request was
burdensome and possibly illegal.

According to Groves, Callaghan had told her that complying with the court
order could lead Maryland to be disconnected from CODIS -- a result
Groves' lawyer said would be "catastrophic."

Groves' affidavit was edited by FBI officials and the technology
contractor that designed CODIS, court records show. Before submitting the
affidavit, Groves wrote the group an e-mail saying, "Let's see if this
will work," court records show.

It didn't. After the judge, Steven Platt, rejected her arguments, Groves
returned to court, saying the search was too risky. FBI officials had now
warned her that it could corrupt the entire state database, something they
would not help fix, she told the court.

Platt reaffirmed his earlier order, decrying Callaghan's "unilateral"
decision to block the search.

"The court will not accept the notion that the extent of a person's due
process rights hinges solely on whether some employee of the FBI chooses
to authorize the use of the [database] software," Platt wrote.

The search went ahead in January 2007. The system did not go down, nor was
Maryland expelled from the national database system.

In a database of fewer than 30,000 profiles, 32 pairs matched at 9 or more
loci. 3 of those pairs were "perfect" matches, identical at 13 out of 13
loci.

Experts say they most likely are duplicates or belong to identical twins
or brothers. It's also possible that one of the matches is between
unrelated people -- defying odds as remote as 1 in 1 quadrillion.

Maryland officials never did the research to find out.

(source: Los Angeles Times)