Ozymandias On Trial: Wrongs and Rights in DNA Cases
8 I met a traveller from an antique land Who said: Two vast and trunkless legs of stone Stand in the desert.1 THE STARTLING RISE and rapid expansion of DNA evidence in the criminal justice system has always been driven by dual narratives. The first time it was used in a criminal investigation, over 25 years ago, Alec Jeffreys’ nascent science of ‘DNA fingerprinting’ not only exonerated a disturbed teenager who falsely confessed to one of a pair of murders in a village near Leicester but also flushed out the previously unsuspected culprit, who was undone by his efforts to side-step the first ever mass DNA screening.2 The two stories of DNA profiling’s power, to expose lies and truths alike, are retold in lengthy lists: hundreds of exonerations of the innocent and thousands of ‘cold hit’ links between unsolved crimes and unsuspected defendants. These narratives have been punctuated by modest developments in human rights law, including halting steps towards enforcing access to potentially exonerating evidence and towards addressing the retention of the DNA of the unconvicted.3 This chapter is concerned with an emerging third strand of the narrative: DNA’s potential to conceal truths and create falsehoods. Recently this dark side of DNA has become prominent in the Australian state of Victoria, where it is now associated with one name. Farah Jama was convicted solely on the basis of a matching DNA profile, with tragic repercussions. Reporting to the Victorian government on the case, retired Supreme Court judge Frank Vincent observed: [T]he DNA evidence was, like Ozymandias’ broken statue in the poem by Shelley, found isolated in a vast desert. And like the inscription on the statue’s pedestal, everything around it belied the truth of its assertion. The statue, of course, would be seen by any reasonably perceptive observer, and viewed in its surroundings, as a shattered monument to an arrogance that now mocked itself. By contrast, the DNA evidence appears to have been viewed as possessing an almost mystical infallibility that enabled its surroundings to be disregarded.4 This chapter explores the Jama case and its aftermath in order to argue that this third element of the DNA story demands a fresh response from both evidence law and human rights law. It first describes the miscarriage of justice and its dual victims and then examines the technological and human failings that lay behind Jama’s wrongful conviction. Finally, it draws attention to an additional flaw in the process, overlooked by Vincent: the ordinary operation of the law of evidence. To avoid complicity in DNA’s potential for harm, evidence law must reinvent the way it seeks to uphold defendants’ right to a fair hearing. Near them, on the sand, Half sunk, a shattered visage lies, whose frown, And wrinkled lip, and sneer of cold command, Tell that its sculptor well those passions read Which yet survive, stamped on these lifeless things, The hand that mocked them and the heart that fed. She awoke to a woman’s voice saying, ‘pull up her pants’. The floor underneath her was black. There were male voices too. They told her that she had been found in a cubicle in the women’s toilets next to Bar 3 of the Venue Nightclub, in the Melbourne suburb of Doncaster. She recalled having drunk two Franjelicos with her sister-in-law and her partner in the car park and another two inside and speaking with or being spoken to by a few men, one of whom she didn’t like because he was ‘sleazy’. Her next memory was waking up on the toilet floor in pain, nauseous and unable to move. The security staff told her the time. She had been in the club for only half an hour.5 Lapsing in and out of consciousness and vomiting repeatedly, she was taken to the Austin Hospital. Her arms and upper body were bruised, and further bruises later developed on her upper thighs. When she expressed concern that she had been drugged and assaulted, the local rape crisis centre was contacted. Toxicology registered a 0.13 blood/alcohol content and only her own prescription medication. The next morning, in the hospital’s Crisis Care Unit, she was examined by Dr Nicola Cunningham, a forensic medical practitioner, who gave her the good news that her genitals were normal and uninjured, and that her bruises were almost certainly caused when security dragged her across the floor of the nightclub. Later came the bad news: a routine swab from her upper cervix found spermatozoa.6 But she ‘had not had sexual intercourse for some considerable time’.7 At Farah Jama’s sentencing for her rape, she told the court: ‘I was violated in a most reprehensible way and preyed upon by another individual. Since that night I have tried to recall the events. I have felt shame, rage and unrelenting guilt that I do not think will ever leave me’.8 These days, it is possible for police to solve ‘stranger rape’ cases swiftly—even ones that feature a dark, crowded, anonymous crime scene and an intoxicated, amnesiac complainant. Exactly four months after the nightclub incident, Jama, a teenager living 10km away from Doncaster, was arrested for the rape. Victoria’s DNA database had reported a match between his DNA and the sperm on the cervical swab. In his police interview, Jama denied not only the rape, but also having been to the club that night or indeed ever having been in any nightclub or even having heard of the suburb of Doncaster. He consented to give a fresh buccal swab, which also matched the cervical swab and became the centrepiece of his trial two years later.9 At the trial, Jama’s father, brother and friend Abdul all testified that the 19 year-old had been at home that night, reciting the Koran and listening to his ailing father delivering his last will, details that were later highlighted in racist corners of the internet.10 Abdul was a problem witness. The two friends had earlier denied seeing each other that night. As well, Abdul admitted in cross-examination that he and Jama had been nightclubbing on two occasions. Trial judge Paul Lacava noted that the alibi evidence ‘was most unsatisfactory in many respects’ and that he was ‘not at all surprised that the jury rejected that evidence’.11 After the jury convicted him, Jama pled his youth and clean record, but Judge Lacava found that his prospect of rehabilitation was reduced by his and his family’s continued denials of his guilt.12 Jama was given a four-year minimum gaol sentence, with Judge Lacava emphasising the importance of both general deterrence, to ‘reflect the community’s disgust with this type of offending and send a clear message to like offenders’, and individual deterrence, telling Jama that the sentence would ‘encourage you to see the error of your ways, and to take proper steps to do something about it’.13 Judge Lacava had not been willing to leave the case on the sole basis of the DNA match. Ignoring objections from both the prosecution and the defence, he told the jurors that they were entitled to view Jama’s contradicted denial of ever having been to any nightclub as evidence of ‘consciousness of guilt’. That is, the jury could infer not only that Jama lied to the police (and, therefore, that he lacked credibility and was not as naïve as he claimed) but also that he deliberately tried to mislead them about the likelihood of his guilt.14 The judge’s direction contravened Australia’s strict (but subtle) common law on evidence of a defendant’s lies.15 So, a year into Jama’s sentence, the prosecution conceded that his conviction could not stand.16 The remaining issue was whether the appeal court should order a new trial or enter an acquittal, a question that squarely raised the issue of whether a defendant can be convicted solely on the basis of DNA evidence.17 The prosecution now considered afresh how Jama’s DNA came to be matched to the Doncaster rape in the first place.18 DNA had been taken in a ‘separate and entirely unrelated investigation … related to events that occurred in Reservoir’, 16km from Doncaster, for which Jama had not been charged and which was recited in Judge Lacava’s sentencing remarks for ‘the purposes of setting out in full the chronology’. But the chronology was curious. As Judge Lacava casually observed, the event in Reservoir (without which Jama would never have been identified) actually occurred the ‘night before’ the alleged rape in Doncaster.19 The police and prosecutors knew that the coincidences did not end there. The Reservoir event was also a rape allegation, this time by a complainant who knew and clearly identified Jama and with whom Jama admitted engaging in sexual activity.20 What was not known, until it was reported by a member of the prosecution’s appeal team exactly three years after Jama volunteered the vital buccal swab to the police, was that there was a third coincidence: the Reservoir complainant’s forensic medical practitioner was Dr Nicola Cunningham, the same doctor who examined the Doncaster complainant the next day.21 Within two weeks, Jama was a free man and the complainant was told that the rape she had struggled to both remember and forget had almost certainly never taken place. And on the pedestal these words appear: ‘My name is Ozymandias, king of kings: Look on my Works ye Mighty, and despair!’ International human rights law makes express provision for the wrongly convicted:22 When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. This provision bristles with caveats. It excludes non-defendant victims of miscarriages of justice (such as the complainant in Jama’s case) and people whose convictions were reversed in a regular appeal (such as Jama himself). It is limited to mistakes revealed by ‘new or newly discovered facts’, as opposed to known facts that were inadequately considered, and to errors that are ‘conclusively’ shown. More importantly, the only requirement that the provision imposes on the state in the aftermath of a miscarriage of justice is to compensate. There is no obligation to try to identify the causes of the mistake or to take steps to prevent a recurrence. Indeed, the provision lists only one potential cause of the mistake: that it may be ‘wholly or partly attributable to’ the person who was wrongly convicted. Yet this heavily-qualified right proved too much for the Victorian Parliament, which omitted it altogether from the State of Victoria’s Charter of Human Rights and Responsibilities Act 2006, enacted the same month as the nightclub incident. However, Jama received over half a million Australian dollars in ex gratia compensation.23 Miscarriages of justice are vital teachable moments in criminal law, simultaneously revealing the gravity of the law’s mistakes, the potential for further errors and the prospect of uncovering or preventing similar ones. In 2001, when belated DNA analysis revealed that a Queensland man had been wrongly convicted of rape, the state’s Court of Appeal declared ‘a black day in the history of the administration of criminal justice’, pilloried police for focusing solely upon DNA evidence’s power to convict and neglecting its power to exonerate, and, pending further findings ‘with a view to ensuring that this sort of incident does not occur in the future’, called for adequate staffing and financing of the state’s major forensic lab.24 By contrast, nine years later, Victoria’s Court of Appeal marked Jama’s reversal of fortune with a bland, one sentence ruling noting the submissions before it and entering a verdict of acquittal.25 While the contrast might be attributed to differences in judicial style, it may also reflect the much more unsettling nature of the error in Jama’s case. Not only was DNA evidence the culprit this time, rather than the saviour, but the error’s discovery was serendipitous, the mistakes (both technical and human) were obscure and multi-faceted, and—as the following pages recount—the incident was the third such in Victoria’s recent history.26 The discovery and reversal of Jama’s wrongful conviction deviated from the Hollywood script of a triumph by feisty defence lawyers or quirky scientists in the face of stone-walling prosecutors. Instead, it was Detective Karen Porter, one of the police officers investigating Jama, who not long after the rape charge was laid made the first inquiries of the DNA lab, with the following request: On 24 November … I discussed with you an offender identified through a DNA sample allegedly responsible for a rape. Briefly, he has denied all knowledge and the victim has little or no recollection of the night … In the current climate I need to be able to discount the possibility of cross-contamination. Perhaps a report is all that is required. I have every faith in the process but no doubt the subject will be raised at any subsequent trial so we may as well be armed with suitable answers to the inevitable questions.27 The four-month period between the nightclub incident and Jama’s arrest saw the publication of a long-awaited coronial report into the notorious death of toddler Jaidyn Leskie in 1997 in the eastern Victorian town of Moe.28 A side issue in that case was an obviously spurious DNA match between the toddler’s clothing and the victim of a rape 150km away in the Melbourne suburb of Altona.29 Items from both cases were dealt with by the same police analyst in a single week in early 1998, but Victoria’s government forensics lab firmly rejected any connection, citing the separation of the relevant samples by a number of days and the lab’s ‘second nature’ quality assurance procedures. 30 Instead, the lab relied on the very argument typically raised by criminal defendants (including Jama) to explain away suspicious DNA evidence: that the match must be the result of an ‘adventitious’ shared profile between the rape victim and a mystery woman associated with Leskie’s death.31 The Coroner was troubled that the lab would be willing to rely on a double coincidence—the adventitious match and the relevant samples being in the lab within days of each other—rather than concede even the possibility of a flaw in its processes: It is of potential concern for the criminal justice system and its investigatory processes that, in the event that it is possible that a laboratory process error or contamination occurs within the State’s forensic laboratory, it has become necessary for international experts to be obtained by an external inquiry process (like a coroner) and a lengthy hearing to occur in order to determine the likely answer. Fortunately, these incidents appear to be relatively rare.32 The Coroner endorsed the unanimous view of the external experts that the match was the result of contamination, possibly via a pair of scissors which had been used on all the exhibits.33 And yet, a month after the Coroner’s report was released, a case manager in Victoria’s lab responded to the request by Jama’s investigator about possible contamination with a similar dismissal of any risk: In my opinion I do not think contamination between the two cases could have occurred as items from the two cases and the relevant reference samples were examined at different times, at different areas and by different people. Also, the DNA processes were done at different times such that the samples were not processed together in the same batch.34 Vincent later condemned this response as ‘incomplete’.35 It lacked a chronology, which would have shown that the various samples were received and analysed within days of each other, sometimes in adjacent rooms, and contained material inaccuracies. Some of the samples were in fact received or analysed by the same person. Most importantly, it failed to disclose the limited scope of the case manager’s internal review and inquiries. Unfortunately, the Vincent Report made no mention of either the earlier Leskie case or of a subsequent revelation of DNA contamination in Victoria’s forensic lab. The day after Jama was convicted, Victoria Police proudly announced that their DNA database had solved another notorious cold case, connecting a current prisoner, Russell Gesah, with the ‘Tapp murders’ in Melbourne’s north in 1982.36 Just two weeks later, the police withdrew the murder charges laid against Gesah, after they realised that clothing from the Tapp case had been analysed in the Victorian lab on the same day in 1999 as clothing from an unrelated case connected to Gesah.37 This time there was no denying the lab’s culpability. The embarrassed Deputy Police Commissioner, Simon Overland, announced a review of 6,000 cases involving DNA evidence to detect any ‘similar issue of cross-contamination’.38 Three months later, the police proudly announced that the review had uncovered just one other problem case, an incorrect link between a theft and cannabis possession where the suspect had not been charged.39 Although the police’s review was unpublished, it seems safe to infer that Jama’s was one of the cases examined and cleared. Vincent made no mention of the Gesah case, the failure of the police’s review and the apparent missed opportunity to save Jama a year’s unnecessary imprisonment. In one sense, contamination is the very essence of forensic science, epitomised in Locard’s aphorism that ‘every contact leaves a trace’. But contamination can occur, not only during crimes, but also during the investigation of crimes. Indeed, several aspects of the criminal justice system routinely bring evidence from different cases into ‘contact’. Victoria’s forensics lab, based in a single building in the Melbourne suburb of MacLeod (coincidentally midway between Doncaster and Reservoir) posed a particular risk. A further independent review conducted in 2010 found that the lab’s results ‘appear to have a higher proportion of mixed samples than would normally be anticipated’, indicating the likelihood of poor contamination management procedures either in the lab or at Victorian crime scenes.40 Victoria Police at all levels failed to recognise other forensic magnets in the system. A second set of contamination risks, the police’s non-forensic operations, which may link disparate crimes via common officers, cars, equipment or police stations, was unlikely to be the operative factor in Jama’s case, since the two alleged rapes were investigated at separate police stations.41
Ozymandias on Trial: Wrongs and Rights in DNA Cases
INTRODUCTION
1. DNA’S HUMAN VICTIMS
2. DNA’S HUMAN FAILINGS