Unique to an individual, except in very limited situations, DNA is unchanging throughout one’s life. DNA is a reliable identifier, and, most conveniently for forensic purposes, it is found in all the body’s cells. Deoxyribonucleic acid (DNA) is an essential molecule that is found in every part of our bodies. DNA testing on biological samples such as skin, saliva, semen, blood or hair is increasingly used to help convict or exonerate people suspected of crimes and with great accuracy. As crucial courtroom evidence, it must be properly collected, preserved and kept from contamination. When the whole procedure is expertly undertaken and correctly completed, DNA testing has become the modern, almost foolproof version of fingerprinting.

For suspects undergoing investigation for a crime and those already incarcerated, DNA testing can almost feel like the flip of a coin. For a suspect, if the coin comes up heads and results in a perfect DNA match to a sample found on the victim’s clothing, he or she is on their way to a jail cell. For those already behind the bars of a prison cell, when tails indicates a crime scene DNA mismatch, it could mean the end of years of unwarranted incarceration. But, as we all know too well, no one can be 100% certain of a coin toss.

DNA, Exoneration, and Compensation

In the U.S., as of September 2011, 273 people including 17 death row inmates have been exonerated by use of DNA tests. This statistic might seem insignificant to a casual observer, but to those exonerated, it’s like having life’s heaviest millstone lifted from your shoulders, not to mention having the doors to a new life opened. The average age of those exonerated at the time of their wrongful conviction is about 26 years of age and the average length of time served is 14 years. These years represent the most productive, most active time of a young adult’s life. It’s a time when careers are begun, families started, and the pathway for the future is formulated.

In view of the prevailing conservative nature of many state governments, it’s somewhat surprising that many these governments have recognized the damage done to wrongly imprisoned individuals and have begun to offer financial compensation. Still, twenty-three states don’t offer any financial compensation for the wrongfully incarcerated. In the 27 states that do, the reparations vary widely.

“It’s a real patchwork,” New York-based Innocence Project policy advocate Rebecca Brown said. “States had been addressing the cases piecemeal with private bills because maybe only one or two people were coming out every few years. But as time goes on, we’re seeing that this is really a systemic problem and there is a great deal of wrongful convictions. A more comprehensive framework needs to get worked out.”

In California, there is a maximum of $100 per day of wrongful incarceration. The wrongfully convicted person must show he did not “contribute to the bringing about of his arrest or conviction for the crime with which he was charged.” This unfortunate provision may prevent people who falsely confessed or pled guilty from receiving compensation, but for those whose advocates can provide DNA evidence, it offers at least some compensation for their lost years.

In June 2000, Johnny Williams was wrongfully convicted of two counts of forcible lewd conduct against a child and one count of attempted rape. Williams was a former neighbor and familiar with the family of the victim. He was convicted of the 1998 crime despite there being no biological or physical evidence. In 2012, the Northern California Innocence Project’s DNA Project re-tested the victim’s t-shirt and found enough biological material to yield a complete male DNA profile that conclusively excluded Williams as the perpetrator. Williams was exonerated on March 11, 2013 after serving more than 14 years of wrongful imprisonment.

In September of 2014, Governor Jerry Brown approved compensation to Johnny Williams for his decades of wrongful imprisonment. This came after approval by the Legislature and the California Victim Compensation and Government Claims Board’s recommendation to grant the compensation earlier that year. Williams will each receive $100 per day of wrongful imprisonment.

On the federal level, compensation laws make an honest attempt to seriously address the long term damage done. President George W. Bush signed into law in 2004 a requirement that wrongfully convicted federal inmates should receive up to $50,000 per year spent behind bars, or $100,000 per year if the time was spent on death row. Time falsely served on death row is particularly onerous, but a 100k a year would seem to salve the wounds to some degree.

An unexpected result of DNA testing.

DNA testing is the culmination of extensive scientific investigation and research that was developed through scientific research at top academic centers. For the average person, the methodology behind the science seems nothing short of miraculous. More traditional forms of forensic techniques are far easier to grasp, though they are increasingly falling into the ever growing shadow of the DNA lab. That shadow can be a boom or a bane.

Traditional forensic techniques that were later determined to be invalid or done improperly played a role in 47 percent of wrongful convictions that were later overturned by DNA testing. These forensic techniques – such as hair microscopy, bite mark comparisons, firearm tool mark analysis and shoe print comparisons – had never been subjected to rigorous scientific evaluation. DNA testing changed all that when it provided a second opportunity to validate or invalidate the results of these tests.

Some traditional forensics techniques have been scientifically validated, such as serology, commonly known as blood typing. However, they can sometimes be improperly conducted or inaccurately conveyed in trial testimony. There have even been wrongful convictions in cases where forensic scientists have engaged in misconduct.

The National DNA Database: CODIS

Fans of spy thriller movies know that their hero will probably do battle with a faceless organization known only by an acronym. Real life criminals often do face just such a nemesis in the guise of the FBI’s national DNA database CODIS.

CODIS is the acronym for the “Combined DNA Index System” and is the generic term used to describe the FBI’s program of support for criminal justice DNA databases as well as the software used to run these databases. The National DNA Index System or NDIS is considered one part of CODIS, the national level, containing the DNA profiles contributed by federal, state, and local participating forensic laboratories.

The origins of this database began in 1989, when the Commonwealth of Virginia’s Division of Forensic Sciences implemented DNA testing in its criminal investigations, becoming the first state crime lab to introduce such a policy. To support this effort, a law was passed that required certain classes of offenders to submit DNA samples for inclusion in a DNA databank. This law required certain sex offenders and certain violent felons to provide samples for the databank. In short order, the legislature expanded the law to require that all felons provide samples for inclusion in the state DNA databank and also required that all felons held in Virginia prisons provide samples upon their release.

Most importantly, in 1992, the United States Court of Appeals for the Fourth Circuit upheld the constitutionality of Virginia’s data basing system, thus planting the seeds for a national database.

Within nine years of Virginia’s establishment of the first state DNA databank, the other forty-nine states passed laws requiring the collection of DNA samples from certain criminals for the purposes of establishing state DNA databanks. All fifty states require DNA samples from convicted sex offenders, with some states collecting from all classes of felons, as well as certain classes of misdemeanants. Additionally, the FBI estimates that most states will eventually begin to collect DNA from all convicted felons when the cost of collecting and analyzing DNA decreases.

CODIS has become instrumental in the resolution of many cases; cases that seemingly would never be solved and would simply fade into forgotten history.

For more than three decades, the 1981 slaying of 6-year-old Jeffrey David Vargo of California remained unsolved. The 6-year-old Anaheim Hills boy had been found strangled at a Pomona construction site.

Every few years, the Pomona Police Department would dutifully assign a new officer to review the cold case and run the forensic evidence through the national database that includes DNA taken from convicted felons. For years, there were no hits. But persistence does pay, and 33 years after the boy was killed, a DNA match led to an arrest.

DNA testing had linked the strangling death of Jeffrey David Vargo to Kenneth Rasmuson, a twice-convicted violent sexual predator.

Rasmuson had relocated to Bonner County, Idaho, in 2010, after acquiring an extensive record of sexual offenses in California. His criminal activities resulted in an arrest that occurred just months after Jeffrey’s murder in 1981 and continued until Rasmuson’s return to captivity in Atascadero in 1996. Prior to his move to Idaho, he resided briefly in Santa Barbara after being released from Atascadero in 2007.

Rasmuson was quickly taken into custody in Sandpoint, Idaho and incarcerated at the Bonner County Jail. He is expected to be extradited back to Pomona, where he will face murder charges for the six year old boy’s murder.

Cases like those of Rasmuson and Williams demonstrate the ability of DNA testing to cut both ways in lives of persons implicated in crimes for which there were previously no answers. The application of the science of DNA to forensics has rapidly become the favored methodology in resolving crimes, old and new. The increasing ease of obtaining accurate results from the smallest of samples recovered from previously unyielding surfaces will only make the technology a cornerstone in crime investigations throughout the world. The science is highly effective even as it exists now and will only improve in the future.

Daniel R. Perlman, Esq.

Law Offices of Daniel R. Perlman