SPEAK OUT

NEWS
DNA Doubts, The Virginian-Pilot, 15 August 2004© August 15, 2004

More than a month ago, three nationally recognized experts issued a blistering critique casting doubt on the state’s DNA analysis in a high-profile murder case. Since then, neither Gov. Mark Warner nor forensics lab director Paul Ferrara appears to have taken any steps to correct what the experts characterized as a mistake or to protect against future error.

Ferrara has explained in a letter to the governor how the lab arrived at its conclusions in its 2000 analysis in the death of Culpeper housewife Rebecca Williams, according to state lawyers.

Apparently, the lab is standing firmly behind its conclusions. If it had discovered an error in this review, the lab would have been required by its own rules to prepare a formal “corrective action” plan. When asked by the editorial page in a Freedom of Information Act request whether corrective action was taken, and what kind, the state, in its official response, ignored the question.

We take that to mean that no plan was adopted and that the officials in charge believe, as they insisted earlier, that no mistake was made. The inaction points to a major flaw in oversight of the nation’s DNA laboratories. The FBI and international accrediting and inspection organizations have set up elaborate procedures to assure that errors are detected and fixed. But there’s a huge loophole: The lab must be willing to blow the whistle on itself.

If the lab absolves itself of wrongdoing, and does not adopt a corrective action plan, neither the FBI nor the oversight agencies is likely to know that a problem occurred. Then, during their regular audits, no one would check to see if the problem has been fixed.
In other words, the easiest way to ensure that your lab enjoys a sterling reputation is never to own up to your mistakes. That the state lab could avoid scrutiny in the Williams case in light of serious allegations of error by leading authorities in the field is astonishing. Dr. Robert Shaler, director of forensic biology in the New York City medical examiner’s office; William C. Thompson, a University of California-Irvine criminologist whose work helped trigger the 2002 shutdown of the Houston Police Department’s DNA lab, and Betty Layne DesPortes, a Richmond attorney who chairs the jurisprudence section of the American Academy of Forensic Sciences, all told The Virginian-Pilot editorial board in June that the state appears to have drawn erroneous conclusions from a contaminated slide.
The slide, containing sperm taken from Williams’ body, was among evidence re-tested four years ago. That’s when former Gov. Jim Gilmore reviewed the conviction of Earl Washington Jr., who spent more than 17 years in prison, 9½ on death row, for Williams’ murder.
Gilmore pardoned Washington, but the governor stopped short of pronouncing him innocent, in part because of the confusing DNA results. Sperm found on the bed where Williams was murdered belonged to Kenneth Tinsley, an imprisoned rapist, the lab said.

But in a second test, the one now disputed, the state ruled out Tinsley as the source of the DNA in Williams’ body. In May, a California scientist retained by Washington’s attorneys, determined that the second DNA, just like the DNA on the bed, actually belongs to Tinsley.

The three experts reviewed the state lab report and that of the California scientist at the request of the editorial page. They said the California report appears to be correct. Additionally, they said, the genetic findings in the state analysis are so bizarre that the slide from which they come is almost certainly contaminated and thus unreliable as the basis for a conclusion.

If the lab failed to recognize obvious problems in its DNA analysis in such a high-profile case, the worrisome possibility is that errors in other cases have gone undetected as well. Beyond that, failure to resolve the case leaves the Williams family in the dark about who murdered their loved one. And it leaves Washington under an undeserved cloud of suspicion.

Shaler, who gained national prominence as the point man in identifying the 9/11 World Trade Center victims, predicted in June that professional oversight guidelines would lead to examination of the disputed slide. He said the state would have to investigate and report the problem. The Virginia lab “can’t sweep it under the rug, nor should they want to.” Yet, the state appears to be doing precisely that. The FBI requires annual audits of labs, such as Virginia’s, that contribute information to the national DNA registry. ASCLD/LAB, one of two major accrediting agencies and the one serving Virginia, does inspections every five years and requires an annual self-assessment by each lab. But, asked if the system hinges on laboratories being forthright about their own errors, Ralph Keaton, director of ASCLD/LAB, replied: “Yes, it does.... We don’t monitor every situation. We expect labs to take appropriate action.”
When three individuals with national reputations, and no ax to grind in the Williams case, seriously question the state lab’s conclusions, the case clearly demands outside review. If the executive branch of Virginia government is unwilling to initiate that step, then the legislature or the judicial branches should demand accountability. It is no small matter when the state lab excludes a suspect based on DNA testing, if in fact that suspect is the donor of the DNA.

And when alarms sound about the performance of the state lab, it should not be up to the lab alone to proclaim its innocence.