Use of DNA as Trial Evidence Is Debated in County Case : Courts: A judge will decide this week whether to grant sexual assault suspect Dennis Fredman a hearing. Some question the science.

Five years after a Ventura County judge broke new ground by allowing DNA evidence at a murder trial, the legal debate over “genetic fingerprinting” has returned to the local courthouse.

Dennis Fredman--a 32-year-old drifter accused of five sexual assaults in Oak View and Ventura--wants a judge to throw out the DNA evidence that is central to his prosecution.

Reflecting a trend in DNA cases across the state, including the highly visible O.J. Simpson prosecution, Fredman’s lawyers have argued that genetic evidence is not admissible in California courts.

Ventura County prosecutors are vigorously fighting Fredman’s request.

They will not talk publicly about the Fredman motion. But in court papers, prosecutors have argued that the historic 1989 conviction of Lynda Axell in Ventura County favors admitting DNA evidence.

Axell was convicted of murdering a man who worked at a downtown hamburger stand after police found strands of the defendant’s long, dark hair in the victim’s hand.

Axell, who worked across the street from the hamburger stand, appealed her conviction but lost in October, 1991. From that point on, prosecutors statewide have used DNA evidence.

In at least three cases since the Axell decision, however, California trial judges have agreed to keep DNA evidence out of their courtrooms. State appeals jurists also have thrown out DNA evidence in two cases.

In general, the judges have cited concerns by some scientists who question the accuracy of the process used to statistically analyze DNA results.

The Fredman motion is based on those arguments. And acting Ventura County Superior Court Judge Bruce A. Clark said he would decide this week whether to grant Fredman a hearing.

Fredman is charged with 27 criminal counts, including sexually assaulting five women and girls in the Ventura area. Prosecutors say he committed the crimes in 1991.

He was arrested in 1992 for attempting to break into his girlfriend’s home, his attorney said. Police collected saliva and blood samples and matched them to DNA material discovered at the scene of the sexual assaults, said Deputy Public Defender Gary Windom.

“This is the only evidence connecting the defendant to the crime,” Windom said. “Without this DNA evidence, (Fredman) would have been home two years ago.”

Motions to exclude DNA evidence are becoming more popular with criminal defendants statewide, authorities said. Since the Axell case, prosecutors estimate that five dozen defendants have been granted hearings to challenge the admissibility of DNA evidence. But the vast majority have lost, they said.

In the O.J. Simpson case, the judge has delayed a ruling until after a jury is selected.

Prosecutors say DNA is foolproof evidence and characterize motions by Fredman, Simpson and others as frivolous and a waste of taxpayers’ money.

Some prosecutors blame recent appellate court decisions that conflict with the Axell ruling for encouraging defendants to request the costly DNA hearings, which can last up to six weeks.

“Does it make any sense that almost the entire rest of the country has allowed the same evidence, has allowed people to be executed based on this evidence, and California is still stuck in denial?” said Alameda County Deputy Dist. Atty. Rockne Harmon, a national expert on the use of DNA in criminal cases.

Others agree that some judges are allowing criminal defendants to exhaust precious judicial resources on DNA hearings.

“As far as the admissibility of DNA evidence, it should be admitted,” said Carol Nelson, the prosecutor who won the Axell case. To not admit it is “just silly,” she said.

DNA, or deoxyribonucleic acid, is found in body tissues and fluids and contains genetic coding unique to an individual. Through DNA analysis, investigators can compare a suspect’s DNA pattern with the coding found in hair, blood, semen and other substances to show guilt or innocence.

The attack on the admissibility of DNA began shortly after the Axell conviction was upheld by the 2nd District Court of Appeal in Ventura in October, 1991.

The first major volley came from a state appeals court in Northern California that dismissed the evidence in two Alameda County cases, including one tried by prosecutor Harmon.

In November, 1992, the California Supreme Court let that ruling stand and defense attorneys have been emboldened ever since.

“It doesn’t mean that DNA evidence is not admissible forever,” said William Thompson, a defense consultant in many high-profile DNA cases, and a UC Irvine law professor. “But the burden of proof is on the prosecutor to show that DNA is admissible.”

No one disputes the basic notion that DNA testing can link suspects to crime scenes. Even someone as critical of the current method of DNA testing as Thompson acknowledged: “Nobody on the defense side is saying that DNA is bunk.”

But lawyers such as Windom, who represents Fredman, argue that the science has not yet been perfected and should be barred from deciding issues of life and death.

“In my case, I’m going to argue that you can do things better,” said Windom, whose small office at the Ventura County Hall of Justice is filled with books on genetics and biology. “I may get myself kicked all over the courtroom in the process, but I’m going to try. You can’t convict someone on voodoo science.

“Admittedly,” he added, “DNA is a very powerful tool if done correctly, and I believe it will be done correctly in the future. Presently, it has not been proven. They are railroading this down people’s throats.”

Windom’s argument and the two appellate decisions are rooted in a little-known legal precedent set by a federal appeals court in 1923.

Called the Frye Rule, it governs the admissibility of new scientific evidence. It has led to the exclusion of such technology as lie detector tests, attorneys said.

Essentially, the Frye Rule says that any new technology must have “general acceptance” in the scientific community as to its reliability before it can be used in court.

At the time of the Axell ruling, both sides of the DNA debate agree, there was not significant debate about the reliability of DNA.

But that has changed. In April, 1992, for instance, a report by a national committee formed to study the DNA issue found that “substantial controversy” surrounded one aspect of DNA.

DNA testing involves a three-step process. The first step is processing a suspect’s DNA coding and the genetic evidence found at a crime. The second is to compare the two DNA patterns. These two steps work perfectly, both sides agree.

But the third and final step--the calculation of how often a defendant’s DNA code is found in society--has prompted the controversy.

The 1992 study by the National Research Council said some scientists did not believe that the statistical methods used in DNA analysis were reliable. The critics said that statistical error could exaggerate the probability that a suspect committed a crime.

UC Irvine’s Thompson cited a New Mexico case where the FBI estimated a suspect’s DNA was present once in every 6.2 million people. Thompson said he retained an expert who used another statistical method to show that the suspect’s DNA could be present in one in 84 people.

“The difference in how you compute the statistics can make a meaningful difference,” Thompson said. “In some cases, the difference is one in a billion or one in a 100 million. But if we’re talking about something that gets it down to triple digits or double digits, that leaves some reasonable doubt.”

Ventura lawyer Willard P. Wiksell, who defended Axell, said the probability of suspects having a common DNA is greater in those of mixed race.

“In the Axell case, we had an individual who had some Indian in her, she had some Hispanic in her, she had some white in her,” Wiksell said. “It’s a legitimate challenge. It’s not just legal mumbo jumbo.”

The NRC report reinforced points made in an article in the leading scientific journal, Science.

In that article, Richard C. Lewontin of Harvard University and Daniel L. Hartl of Washington University attacked the reliability of DNA statistical analysis, while other leading geneticists defended the system.

Defenders of DNA sharply criticize many of the detractors.

“We call them the flat-Earth society,” said former Ventura prosecutor Nelson. “These people have made a darn decent living saying something almost equivalent as the Earth is flat.

“If we can take simple things and pretend they are complicated,” added Nelson, who retired earlier this year, “you’ve got a heck of an industry going.”

Prosecutor Harmon of Alameda County was even more caustic. “These scientists are saying, ‘I don’t think that’s the right number.’ And you say, ‘What’s the right number then?’ They say, ‘I don’t know. I just don’t think that this is the right number.’ ”

And until defense experts come up with the right number, he said, they will continue to lose the court battle over DNA evidence.