DNA Tests Becoming the Key Out of Prison

Kevin Green should meet Frederick Daye--the ex-Marines would have lots to talk about.

Each man was convicted of a brutal assault, largely on the strength of the victim’s testimony. Each served years in California prisons.

And, in stunning reversals, each was eventually exonerated and freed after DNA testing proved they were innocent. Green was released Thursday after being in custody 17 years for a 1979 bludgeoning attack on his pregnant wife that led to the death of her full-term fetus.

The former Tustin Marine corporal became the latest in a growing list of convicts who have been exonerated in recent years on the basis of fresh DNA testing in old cases--the flip side of a crime technology that has most often helped prosecutors put defendants behind bars.

Across the nation, at least 36 convicts serving lengthy terms for crimes such as rape and murder have been exonerated after defense attorneys pushed to reexamine biological evidence using DNA testing. Most of those cases were handled or assisted by a New York-based group called the Innocence Project, which has to its credit about 20 cases in which a prisoner was freed on the basis of fresh DNA evidence.

The U.S. Justice Department, noting that convicts had been freed after DNA testing, announced last week it will help speed development of a nationwide DNA data bank.

“This is unique in the history of the criminal-justice system in America--that so many people have been exonerated years afterward,” said Barry Scheck, a law professor who helps run the project and was a member of the O.J. Simpson defense team. “We’ve never had a development like this.”

Legal experts said the court system can expect to see a rash of requests to revisit cases believed solved years ago, although many note that convictions based on testimony from a single eyewitness are unusual. That effort will likely center on cases going back a decade or so in which evidence such as blood and semen still exists and has not deteriorated to the point where it cannot be tested. Scheck said his group has 400 outstanding cases.

“I think there’s still a lot of cases out there where testing remains to be done,” said William C. Thompson, a UC Irvine criminology professor who is an expert on the use of DNA in criminal cases. “It will be very interesting to see what the rate of exoneration is in them.”

In the past few years, DNA evidence has helped exonerate suspected rapists and murderers around the country:

* Three prisoners, including one who was on death row, were released in Illinois last week after new DNA evidence backed up their assertions that they were not guilty of a 1978 double murder in which one of the victims was raped. The men released are under house arrest pending further investigation. A fourth man convicted in the case was released earlier after the Illinois Supreme Court ordered a new trial because of perjured testimony.

* In November 1995, a 42-year-old man was released from an east Texas jail after a new, sophisticated DNA test contradicted earlier findings that linked him with the murders of five people who were abducted in 1983 from a Kentucky Fried Chicken restaurant.

* In September 1994, DNA evidence helped free rape convicts in Ohio and Virginia after years in prison. Both men were represented by lawyers for the Innocence Project, which has worked to free nearly two-thirds of convicts nationwide who have been exonerated after conviction through new DNA evidence.

Green was released with an Orange County judge’s apology after authorities determined that DNA evidence pointed to a separate suspect in the 1979 attack that severely injured his former 21-year-old wife, Dianna D’Aiello, and left the 9-month fetus she was carrying lifeless.

Investigators using a statewide DNA databank to help crack a string of unsolved bludgeoning slayings in the late 1970s were led to a suspect who police sources say later confessed to the killings--and the attack on D’Aiello. Later DNA testing linked the new suspect, Gerald Parker, 41, a convicted rapist imprisoned on a parole violation, with the D’Aiello attack, investigators said.

Officials said the breakthrough in the 17-year-old case could be attributed to advances in DNA technology, including a new testing method at the Orange County Sheriff Department’s crime lab, and a new statewide DNA database of released prisoners.

The Green case is the second in California in which law enforcement officials were able to file murder charges against a suspect via the state Department of Justice’s new automated DNA database. Using the same database, officials who had no suspect got a “hit” in a case where DNA from a 1992 murder and sexual assault case in Contra Costa County was matched with the stored sample taken from a convicted felon.

The database includes more than 65,000 DNA samples taken from jail and prison inmates convicted of violent or sexual crimes in the past 10 years. In May, the state Justice Department unveiled a new automated system in which the stored DNA samples can be quickly matched with DNA samples taken from the scenes of unsolved crimes. Previously, the analysis had been done by a time-consuming manual process.

In the Green case, law enforcement authorities had long suspected that one person, nicknamed the “Bludgeon Killer,” was responsible for several similar murders and assaults in which the victims survived.

Green’s former wife identified him at trial as the man who beat her on the head with a tape measure.

Police in Costa Mesa and Tustin, however, discovered Green was innocent while investigating three unsolved attacks in their cities. Forensic scientists found common DNA samples in three cases and those samples matched that of Parker, whose DNA was entered in the state database after he confessed to raping a 13-year-old girl, authorities said.

That effort paralleled a push by a pair of Orange County prosecutors, working with police and coroner’s investigators, who decided to reexamine more than 100 unsolved murder cases using DNA and other techniques unavailable at the time of the crimes.

“It feels good to have been part of a process that freed a man,” said Deputy Dist. Atty. Mel Jensen, one of the two prosecutors spearheading the cold-case project. “I can’t tell you how good it feels.”

But others say the string of cases reversed on the basis of new DNA evidence raises troubling questions about how the legal system could have convicted those innocent people in the first place.

“If one accepts that the DNA exoneration is conclusive . . . it means these are prime examples of where the justice system went wrong,” Thompson said. “I think they are worthy of close scrutiny and analysis.”

Scheck said that in many cases, faulty eyewitness accounts and prosecutors who bury evidence that hurts their case are to blame.

“What we’re going to learn from these cases is a lot more of why people get convicted when they didn’t do the crimes--systematic things.”

Defense attorney Carmela Simoncini understands that only too well.

The San Diego appellate lawyer won the release of Daye, a former barber and ex-Marine, who served 10 years in prison after his 1984 conviction for the rape and kidnapping of a woman who identified him conclusively as one of the two attackers. Daye had said he was elsewhere at the time.

Simoncini, who works for Appellate Defenders Inc., a nonprofit group defending indigent clients, ordered DNA tests after discovering that only less-exact blood tests were done at the time of the trial.

“There were a lot of things that sent red flags up in my mind that this was a case of mistaken identification,” Simoncini said Friday.

But Simoncini said cases where DNA can be the deciding factor to free a prisoner are probably rare, because most convictions rely on multiple sources of evidence.

Jensen said Orange County prosecutors plan to continue digging away at dormant cases, but declined to predict whether the renewed probes would lead to exonerating anyone else.

“Had I known this was going to be the outcome, I’d have done it years earlier,” Jensen said. “It points up that we’re not just here to put people away and that DNA is not just to convict people.”

Also contributing to this report were researchers Sheila Kern and Lois Hooker and correspondents Lesley Wright and Enrique Lavin.

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Sleuthing With DNA

In March, the Orange County sheriff-coroner’s DNA unit developed an analytical technique that led detectives to a new suspect and resulted in the release of Kevin Lee Green, who served 16 years in prison for a murder he didn’t commit. The technique, specifically used on small or old DNA samples, allows analysts to take a short DNA strand and replicate it several times. They string the short strands together to make a larger chain that can be tested. A look at how DNA testing works:

1) DNA is extracted from body tissue or fluids (such as blood), collected from suspects and taken from evidence.

2) The DNA is chemically cut into fragments using restriction enzymes.

3) The resulting DNA fragments are placed in a gel and separated into bands by running an electric current through it, a process called electrophoresis.

4) The pattern, still invisible at this point, is transferred to a nylon membrane.

5) Radioactive DNA probes are applied to the membrane and bind to matching DNA sequences. Excess, unattached DNA probes are washed away.

6) X-ray film is placed next to the membrane. The film is developed, revealing a pattern of bands where the radioactive probe has bound to the DNA fragments. This DNA profile is the genetic fingerprint.

7) The final DNA fingerprint is a pattern of light and dark bands that looks like a supermarket bar code. The DNA fingerprint is compared to DNA from other samples, such as blood taken from convicted felons in the state’s database.

Sources: Associated Press, Cellmark Diagnostics, Congressional Quarterly, New Scientist magazine, Parkin-Elmer Corp.

Researched by NONA YATES / Los Angeles Times