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DNA in the dock: how flawed techniques send

innocent people to prison

Many juries believe crime-scene DNA evidence is watertight but this is far from the case. As forensic
technology gets ever more sophisticated, experts are only just realising how difficult interpreting the
evidence can be

by Nicola Davis-Monday 2 October 2017 06.00 BST

For David Butler, it began with a knock on the door early one November morning,
seven years ago. When he opened it, officers from the Merseyside police were
standing on his doorstep. The retired taxi driver was being arrested for murder.

The police said they had evidence connecting Butler to the death of Anne Marie
Foy, a 46-year-old sex worker who had been battered and strangled in Liverpool
in 2005.
Butlers DNA, it turned out, had been logged into the UK national database after a
1998 investigation into a break-in at the home he shared with his mother. A
partial match had been made to DNA found on Foys fingernail clippings and
cardigan buttons. This, combined with CCTV evidence of a distinctive taxi seen
near the scene, led the prosecutor to tell the jury in Butlers trial that the DNA
information provides compelling evidence that the defendant was in contact
with Anne Marie Foy at the time immediately before she died.

The case seemed conclusive. Yet Butler was adamant: he had not met Foy.

You do see an assumption being made that a DNA profile is evidence of contact
case closed whereas it is actually a lot more complicated than that, says Ruth
Morgan, the director of the Centre for the Forensic Sciences at University College
London. We are only beginning to realise quite how complex it is.

Since DNA was first used in a police investigation 31 years ago, to solve the
murder of Dawn Ashworth, a 15-year-old schoolgirl who was raped and strangled
in Leicestershire, the technique has attained an aura of being bulletproof.
Certainly, in some cases, evidence of a DNA match to a suspect can be powerful.
There will be times when you get a really clear [DNA] profile, and it is very clear
how that material got to the crime scene. And it is [also] very clear that it was
during the course of an illegal activity, says Morgan. The classic [example]
would be semen on the clothing of someone who is underage.
But Butlers case is just one of many that highlight growing questions in the world
of forensic science: what exactly are fingermarks, DNA or gunshot residue actually
evidence of particularly now that even tiny traces can be detected?

Its a riddle whose answer may have profound consequences. According to


research published by Morgan and her colleagues, rulings for 218 successful
appeal cases in England and Wales between 2010 and 2016 argued that DNA
evidence had been misleading, with the main issues being its relevance, validity or
usefulness in proving an important point in a trial.

It is not the first time forensic science has come under scrutiny. In 2015, the FBI
and co-authors released a report that put the final nail in the coffin of hair
analysis, while the matching of fingermarks (found at crime scenes) and
fingerprints (taken from suspects) has also been in the spotlight.

In a seminal paper from 2005, the neuroscientist Itiel Dror and colleagues
revealed that, in the case of ambiguous marks, those examining the evidence
could be swayed in their conclusions by the context of a case, with a match more
likely to be made when the crime had been depicted as harrowing.

Anne Marie Foy DNA found on her fingernails led to an innocent person.
After initial resistance, the impact of such work has been dramatic. Fingermarks
are now presented in court in a completely different way it is really, really rare
that you get someone saying unequivocally: This is an identification, says
Morgan.
But with technology now allowing the recovery of minute traces of DNA, new
challenges have arisen. Not only is it often unclear whether trace DNA is from skin
cells, saliva or some other body fluid, but such DNA samples often contain
material from multiple individuals, which is difficult to tease apart.

Whats more, working out when the DNA was deposited, and for how long it
might have been present, is an enormous problem. If you get a mixed profile on
an item of clothing, is the major profile the last person who wore it, or is it
somebody who regularly wore it? Morgan asks.

And it gets more complicated. In different scenarios, some people leave DNA and
some people dont, she says. Indeed, studies from several groups have looked at
a number of factors affecting how much DNA is left behind, which can be
influenced by such things as how long it was since somebody washed their hands
and which hand a person touched an object with. And some people simply shed
more. Weve had some experiments where the person whose DNA we were
looking for left either a partial profile or not really a viable profile but there was
other DNA [from a person] who we were able to identify as a close partner who
hadnt touched the item; they hadnt been in the lab.

To Butler, such issues proved pivotal. The DNA samples from Foys nails were a
complex mixture of profiles and only a partial match was found with Butlers DNA.
Further analysis of the initial examination notes also revealed that Foy had been
wearing glittery nail varnish. That is going to retain more DNA for a longer time
because there is more opportunity; more things for it to stick to, says Sue Pope,
a DNA expert who worked on the case, and is now co-director of Principal
Forensic Services Ltd.

And there was another significant factor: Butler had a condition which led to him
having flaky skin. He was depositing a lot more cells that you might expect from
a single touch, says Pope. The findings, argued the defence, meant that Butlers
DNA could have found its way on to Foys hands and hence her clothing by
entirely innocent means for example by Foy handling coins that had previously
been touched by Butler. After eight months on remand, Butler was acquitted.

The case exemplifies the puzzles Morgan and her colleagues are hoping to tackle
by means of a host of experiments, from looking at how DNA can be transferred
between individuals to how long particles such as quartz grains can cling to
footwear an important consideration given that the shape and texture of such
grains can be linked to specific environments. One poor student had to wear the
same pair of shoes most days for four months, says Morgan.

The results were intriguing. The outsides of the shoes showed a rise in particular
types of quartz grain as the student visited each of five known locations, with the
quantity of each type dropping off over time. At the end of the study, grains from
just two locations were found on each shoe.
But there was a surprise. Inside [the shoe] we had every single location, said
Morgan. That, counterintuitively, means the inside of a pair of shoes could offer
up more clues than the outside when it comes to tracing a suspects movements.

Meanwhile, research by the team carried out after the Rotherham abuse
scandalnot only revealed that DNA from semen could be found on clothes
laundered several months after the fluid was deposited, but also threw up
another result. We found the suspects DNA on other items that had never had
any of that bodily fluid on them, indicating you are getting transfer in a washing
machine, says Morgan.

Meredith Kercher Raffaele Sollecitos DNA was found on her bra. Photograph:
PA

The question of how and when DNA can be transferred, and its implications for
the justice system, wasthrown into sharp relief by the murder of Meredith
Kercher in November 2007. Among the evidence was the fact that DNA from
Raffaele Sollecito the boyfriend of Kerchers flatmate, Amanda Knox was
found on the clasp of Kerchers bra.
While it was argued that the DNA cropped up as a result of contamination,
Morgan points out that when people are under the same roof there are multiple
opportunities for transfer, from handling each others laundry to touching the
same objects. Yet just how much DNA is transferred, and in what circumstances,
remains unknown.

The upshot is that, although the technology is more powerful than ever, the
presence of trace DNA is far from a magic bullet. Indeed, the 2015 annual report
from the UK governments chief scientific adviser into forensic science warned
that for many substances now detectable at trace levels our ability to analyse
may outstrip our ability to interpret.

But funding, says Morgan, is largely directed towards inventing new gadgets and
miniaturising existing technology, adding that UCL has had to turn
to crowdfunding to raise money for a centre dedicated to the interpretation of
forensic evidence.

Georgina Meakin, an expert in DNA analysis, also based at UCL, says that public
understanding is another thing lagging behind advances in technology. One
potential area of confusion is just what DNA analysis involves. Rather than
sequencing the whole genome, only certain areas of the DNA are examined. Since
2014, in England, it has generally been at 16 sites, plus an additional marker that
indicates whether the sample is from a man or woman. These [sites] consist of
repeating sequences of DNA, and we are interested in the number of repeats that
are present; it is the number of those repeats that can differ between
individuals, says Meakin.

But, she stresses, trace DNA is often far from conclusive, with analysts often
having to turn to statisticians to unpick mixed profiles. Its a situation that some
have sought to commercialise, among them Cybergenetics the company behind
an algorithm-based technology known as TrueAllele which claims to be able to
untangle mixed profiles and produce accurate results on previously unsolvable
DNA evidence.
Brian Shivers flawed DNA evidence led to his conviction being overturned.
Photograph: Peter Muhly/AFP/Getty Images

It has been used in hundreds of cases in the US. But there is a hitch: experts have
argued that neither they, nor the defendants, have been allowed access to the
systems source code meaning, among other things, that it is difficult to know
what assumptions are built into the technology. There is a lot of concern, says
Morgan. People arent happy that it is essentially a black box.

But the company puts the case that both defence and prosecution are welcome
to test the software on their own data, adding that the maths behind the system
has been disclosed.

Nonetheless, Pope argues that independent validation of software for DNA


analysis is crucial. A courtroom setting is not the best place for looking at really
detailed questions about how statistics have been done. And, even if the
technology is accepted as being reliable, questions remain. It tells you something
about the potential source of the DNA, but nothing at all about the activity
involved in the DNA coming to be where it was found, she says.
That became apparent in the case of the Massereene barracks murders the
shooting of two British soldiers in Antrim, Northern Ireland, in March 2009.
Among the evidence were findings from TrueAllele, which included a match
between mixed-profile DNA taken from a mobile phone found in the partly burnt-
out getaway car and one of the suspects, Brian Shivers. As Mark Perlin, founder of
TrueAllele, testified, the DNA on the phone was six billion times more likely to be
that of Shivers than it being a coincidence.

Together with other DNA evidence, the finding proved pivotal in the outcome of
the trial. Shivers was found guilty and sentenced to at least 25 years in jail, with
his poor health making it likely he would die in prison.

Yet in 2013, there was a retrial. The reasoning hung not on the evidence, but on
its interpretation. Shivers DNA, the judge concluded, might have turned up on
the phone and on other evidence from an innocent touch, or even a handshake.

Have the prosecution eliminated other possibilities than the guilt of the accused?
Am I satisfied beyond reasonable doubt of the guilt of the accused? he asked.

The answer was clear. No. Shivers was acquitted.

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