Here is a story that tells you why DNA evidence is the greatest advance in crime and punishment since the invention of the jury: A teenage girl is raped in Harlem, and the police know they've got their guy. He'd just been released from jail for a sex crime in--get this--the same area in which the girl was raped. He'd been seen in the neighborhood just before the rape; just after, too, in different clothes. And he'd been picked out of a lineup.
"I think any number of people in my office could have gotten a conviction," says Linda Fairstein, who until recently ran the sex-crimes unit in the Manhattan district attorney's office. "A conviction for a crime he didn't commit."
That's right; the right guy was the wrong guy. A comparison of his DNA with that taken from semen the rapist left behind showed that he hadn't done the crime. But the DNA did link that rape to another, and then to the unsolved rape-murders of three teenage girls in East Harlem. And when the cops became suspicious of a clean-cut young man named Arohn Kee, they came away from interrogating him with a whole batch of denials, and a coffee cup from which Kee had sipped. The DNA on the lip of the cup matched DNA evidence from all the crimes, and led to the incarceration of a serial killer and sex criminal.
The release of an innocent man, the linking of several crimes, the conviction of the undeniably guilty: the extraordinary uses of DNA testing are all there, in that one case. More reliable than fingerprints or ballistics or the evidence of your lying eyes, the genetic fingerprint we humans leave everywhere in our wake is the best witness the criminal-justice system has ever had. And not just for prosecutors. Roughly one in four of the samples run through a federal databank exonerates a suspect, even when all other evidence suggests he is guilty.
So how come we still get it wrong, jailing the innocent, missing the guilty? It sounds so simple. Technicians take the DNA profile, load it into the computer, compare it with the samples taken from known offenders. While just 10 years ago the DNA analysis could have cost thousands of dollars and taken months, now it's about $40 a sample and can take days; while once a blot of blood the size of a half dollar was needed for testing, now it can be done with material invisible to the naked eye, from the steering wheel of a stolen car to the bite mark in a doughnut. The best-known use of DNA at the moment is humanitarian: the identification of remains from the World Trade Center that a mere two decades ago would never have been identified at all.
DNA testing went from a technique that was not even admissible in American courts in the'80s to one that is the cutting edge of investigatory technique and is accepted everywhere today. While once samples were not even analyzed unless there was a clear suspect, because there was nothing with which to compare them, now there are state offender databanks with thousands of genetic profiles. But the swiftness with which this all happened means that there are hundreds of thousands of untested samples in evidence rooms and labs around the country.
The Virginia Division of Forensic Science is as far ahead as any state facility in the nation. It was the first to offer DNA testing, in 1989, and the first to create an offender databank when lawmakers passed a bill mandating samples from convicted felons, a databank that now has 180,000 DNA profiles in it. The Virginia lab has instituted training for law-enforcement personnel, since the first step in the use of DNA evidence is gathering it properly. While some states have many thousands of rape kits and other DNA samples waiting to be analyzed, Virginia's backlog is 1,400 cases, and most are less than six months old.
"I hate backlogs," says Paul Ferrara, the director. "Our goal is to reach a 30-day turnaround, but I even worry about that. What's this guy going to do in 30 days? That's the kind of thing that makes you sick."
The solution is more money and more people. Ferrara estimates the United States will need an additional 10,000 forensic scientists in the next decade. And while there are grants to the states and federal legislation designed to improve DNA collection and analysis, the conspicuous shortcomings in some areas mean that, now more than ever, justice is a product of geography.
Lots of the attention paid to DNA testing so far has been negative, the concerns about privacy rights and the defense high jinks and scientific gobbledygook of the O. J. Simpson case. But those who are worried that their genetic secrets will be used to deny them insurance coverage ought to be more concerned with that urine sample provided at work. Those worried about the rights of the accused should know that DNA testing does more than any other technique to protect the innocent. It's the anonymity of the guilty to which it poses a threat.
Good example: the case recently in which a rapist was in jail in Wisconsin because of DNA evidence when yet another woman reported an attack. The DNA from the scene matched that of the imprisoned man. Had the DNA lied? No, the woman had. She'd been paid to take a sample of semen that had been smuggled out of jail and stage the rape to make the guilty guy look innocent.
Making this technology as available as possible is as much a personal policy issue as water and sewers or public schools. Just imagine that there is a serial rapist out there. His DNA profile is hidden away in a series of unprocessed rape kits in jurisdictions that are way behind on their backlogs. The profile is also in an offender databank because he has been previously jailed and tested. Someday the crime-scene material will be processed, and uploaded, and there will be a hit, and the man will be arrested. But not yet. And while the kits wait, and the man walks, he rapes you. Or your daughter. That's a pretty personal issue, isn't it? And it would have been so easy to stop him.