“Last summer in the midst of the George Floyd protests, I organized two dozen lawyers to defend protesters who were arrested in Beverly Hills for not remaining *silent* during a peaceful public protest. A violation of an emergency city ordinance. They were booked and stuffed together in jail cells for over 16 hours and charged with misdemeanors.

Our strategy was to ask the court to declare the law unconstitutional. And yesterday that’s exactly what happened.

I am the one whose quote made it into the LA Times article, but this was an enormous group effort from volunteer attorneys. I’m just the guy who put the smartest people I could find together in a (virtual) room.

And we all must give all praise and glory to Bess Stiffelman and Jeff Douglas who did the heavy lifting in drafting the briefs and brilliantly arguing our position to the court.

The big civil rights orgs didn’t think our ad hoc group of rando criminal defense lawyers would win. Bess and Jeff are the reason we proved them wrong, why laws like this won’t be passed anymore, and why 25 people had their cases dismissed.

Thank you again to everyone who stepped up to make this happen. LA. What a town.”

Jerod Gunsberg

Abstract

This is a brief response to the critique of my previous article, No Longer the Gold Standard: Probabilistic Genotyping is Changing the Nature of DNA Evidence in Criminal Trials, 24 Berkeley J. Crim. L. 110 (2019). The critique of my article was published earlier this year in this journal. I address both criticisms and misunderstandings of my arguments in an effort to frame the concerns of the criminal defense community about the impact of probabilistic genotyping on the deliberative process.

One commentator recently wrote, "These trace samples lack the clarity of the more straightforward DNA evidence that can lead to a clear match to a specific individual." Bess Stiffelman, No Longer the Gold Standard: Probabilistic Genotyping Is Changing the Nature of DNA Evidence in Criminal Trials, 24 Berkeley J. Crim. L. 110, 115 (2019); see also Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 82, 129 S. Ct. 2308, 2327, 174 L. Ed. 2d 38, 60 (2009) (Alito, J., concurring) (stating as to touch DNA that "modern DNA testing technology is so powerful that it actually increases the risks associated with mishandling evidence").

Bess Stiffelman summarises the state of affairs well writing in an informative article (which we encourage all lay readers with an interest in DNA evidence to read) that “in short, the technology and science is so disputed, that there is insufficient consensus in the scientific community regarding the admissibility of these LRs.”[4]

The paper by Stiffelman raises rather an interesting point; the LR may undermine the entire foundation of a fundamental legal principle; the assumption of innocence. Stiffelman argues, and we and others agree, that the LR is essentially meaningless without what is called a ‘prior’. The prior is the degree of belief or probability of the proposition that the DNA came from the defendant before we know the evidential DNA profile data in the case.

“In order to convert an LR into a probability, a Bayesian analysis has to be applied. … In order for an LR to answer anything meaningful to a jury, the juror must first postulate a prior probability of guilt. Again, as described by the National Research Council, “[t]he likelihood ratio is still one step removed from what a judge or jury truly seeks — an estimate of the probability that a suspect was the source of a crime sample, given the observed profile of the DNA extracted from samples.” …They [LRs] do not express the probable likelihood of the truth of either hypothesis or the probability that the defendant is the source of the DNA.

…

But there is an even larger and quite distinct problem with this evidence. The opacity of the LRs obscures something important that is happening when they are introduced in a criminal trial. The complicated math and science distracts judges, lawyers, and surely jurors from the essential nature of this evidence — that it expresses the relative probability of two hypotheticals. Bayesian reasoning has to be employed to convert the LRs into a meaningful probability, and, as I discuss supra, this undermines the presumption of innocence and the prosecutor’s burden of proving their case beyond a reasonable doubt. This concern is exacerbated by the sheer power of the DNA moniker, which dwarfs any and all other less purportedly “scientific” evidence.”

The nature of probabilistic genotyping, Stiffelman argues, raises problems that the article discusses in detail. Unlike the comparison of a single-source DNA sample to a suspect’s DNA, probabilistic genotyping seeks to interpret complex mixtures and fill in gaps of an incomplete and damaged DNA sample to discover the likelihood that a suspect produced it. While single-source matching produces a Random Match Probability which compares a sample to the probability for all outcomes, probabilistic genotyping produces a likelihood ratio calculating which of two pre-established hypotheses is more likely. It is important for attorneys to consider what hypotheses are being compared.

In an illustrative analogy, Stiffelman asks which is more likely when confronted with a destroyed pillow sitting next to your dog: that the pillow’s seams spontaneously fell apart or that a burglar shredded it while you were out? After gathering facts, you find it 10,000 times more likely that the pillow fell apart. While the likelihood ratio is greatly in favor of spontaneous destruction, it utterly fails to take into account other possible hypotheses (bad dog) that may be more likely. Probabilistic genotyping only looks at the likelihood of two predetermined hypotheses. If not properly explained, the ratios produced by the analysis can easily mislead jurors and attorneys who lack understanding of what is being compared and a compelling statistic may be produced that potentially overlooks an even more likely hypothesis.

In the article, Stiffelman also examines probabilistic genotyping in light the constitutional right to the presumption of innocence in a criminal trial, current case law, and the effects of an incorrectly interpreted likelihood ratio. In general, the article provides an excellent starting point for attorneys looking to gain a better understanding of this method, what it offers, and some of its potential pitfalls if it is misinterpreted.

DNA has long been considered the gold standard of forensic evidence, heralded for its ability to exonerate the innocent and convict the guilty. But this new generation of DNA evidence is far from its established predecessor — both in the quality of the evidence collected and the clarity of what is presented in court. With new highly sensitive technology, tiny amounts of DNA, often just a few cells, are now collected at crime scenes. This DNA was left on objects by someone who touched an object, or by someone who touched or was touched by someone who then touched the object, or even further removed. In other words, cells travel and can be easily transferred to an object without the person who was the source of that DNA ever having come into contact with the object. But this is only the beginning of the difference. These crime scene samples often contain multiple people's DNA, and there is degraded and missing information. The samples are incomplete and mixed together. In order to give some evidentiary weight to these complicated and incomplete mixtures, crime labs are turning to something called probabilistic genotyping. These computer programs generate something called a likelihood ratio. These likelihood ratios purport to express the probabilistic relationship between two hypotheses, the hypothesis that the suspect is in the DNA sample compared to the hypothesis that the suspect is not included in the sample. In this paper, I first explain what a likelihood ratio is, how it is generated, and some of the fundamental problems with the evidence. Then I turn to an analysis of the propriety of this evidence in criminal trails. It is my position that because likelihood ratios can only be generated by first presuming guilt (inclusion), they undermine the presumption of innocence, and that, by weighing these hypotheses equally, they water down the burden of proof beyond a reasonable doubt in a criminal trial. This is complicated by the sheer power of the DNA moniker and opacity of the numbers generated.

“One thing that was encouraging was that during jury selection it seemed like people got it,” Bess Stiffelman of the Legal Aid Society, who represented Boone on his retrial, told The Daily Appeal. “It used to be that identification testimony, pointing to someone and saying ‘That’s the guy who did it!’ was the most powerful evidence people could hear. And I think that people can understand that witnesses can be mistaken, despite confidence.”

Stiffelman was surprised that the Brooklyn DA’s office, which prides itself on having the largest dedicated conviction review unit, and on being “progessive” in general, never seemed to consider the possibility that her client was not guilty. According to the office’s website, the Conviction Review Unit takes a “fresh look at all the evidence,” consulting with experts and using the most up-to-date science to reevaluate the evidence. This includes “social science research on issues like faulty eyewitness identification.” But they fought the case aggressively.

On January 29, 2018, Boone was released on a bond secured only by his signature. He went to trial a second time in February 2019, represented by Bess Stiffelman and Amy Swenson, attorneys from the Legal Aid Society.

Eichler and Zeitlin again identified Boone as the robber. For the first time, defense attorneys presented evidence that Boone was elsewhere when the second robbery occurred. State records showed that Boone used his public benefits card in two transactions one mile away and about five minutes before the second robbery occurred.

On March 1, 2019, the jury acquitted Boone, rejecting the prosecution theory that Boone, who had arrived in New York just four days before the first robbery, took a bus to the scene of the second robbery and reached there in less than five minutes.

One juror was quoted by the New York Times as saying the prosecution theory was “wildly unlikely.” Jurors hugged Boone after the verdict was announced and one juror said the jury reached its decision in about five minutes.

– Maurice Possley

His misidentification was the result of what is known as the “cross-race effect," in which people of one race have a hard time identifying people of another race. It led to a long, seven-year stretch behind bars.

"When they locked me up, I did cry," Boone said.

But he kept fighting his case. His lawyers at Legal Aid Society were eventually able to overturn his conviction.

Defense attorney Bess Stiffelman and her team were able to prove Boone was physically a mile away from the crime scene when he used his city issued Electronic Benefits photo ID Card.

“There was really no investigation," Stiffelman said.

Boone, now 27, has been out for the last year while appealing his case. He won his freedom for good at a second trial earlier this month.

"While nothing will ever fully right the years that our client spent wrongfully incarceration, we are pleased to have secured some justice with this acquittal so that he can finally move on with his life," Legal Aid Society attorney Bess Stiffelman said. "Unfortunately, this kind of negligence in eyewitness identification is not unique and demonstrates the profound recklessness of the NYPD to investigate arrests made solely on identification testimony, which we now know is the greatest source of wrongful convictions."

The case also set a precedent for cross-race identifications, where jurors must be instructed about the unreliability of identification when the observer or witness is a different race than the suspect.

"People used to think, someone said, 'Oh I'm sure it's that person,' that that was trustworthy," Stiffelman said. "We now know that there are lots of reasons that can be untrustworthy."

Boone's attorneys argued that the arresting detective failed to review prior interviews and information that cast doubt on the reliability of the identification procedure, and that the detective ignored requests to interview witnesses who could have provided information on Boone's whereabouts at the time of the robberies.

"This case had reasonable doubt written all over it," Stiffelman said.

"The mandatory cross-race jury instruction established by the Court of Appeals in Mr. Boone's case will serve as an important protection against wrongful conviction for criminal defendants, as it did here for Mr. Boone," said Karen Newirth of The Innocence Project. "While Mr. Boone can never get back the 7 years he served in prison, we are so happy that he is now free.

Mr. Boone has filed notice that he plans to sue the city for false arrest and malicious prosecution.

Bess Stiffelman, the trial lawyer who represented him for the Legal Aid Society, said the authorities showed “a shocking disregard for the risk of false identification here and for whether or not they may have arrested an innocent suspect.”

“Unfortunately, this kind of negligence in eyewitness identification is not unique and demonstrates the profound recklessness of the NYPD to investigate arrests made solely on identification testimony, which we now know is the greatest source of wrongful convictions,” said Bess Stiffelman, Staff Attorney with the Criminal Defense Practice at The Legal Aid Society.

Bess Stiffelman, an attorney at the Legal Aid Society, said periodic efforts to clear the backlog of cases weren’t sufficient. “The bail system should be fixed so that people who are poor don’t get stuck in jail,” she said. Lawyers and judges should have manageable caseloads, she said, and defendants who demand trials “shouldn’t have to get in line.”

Ms Stiffelman said people often plead guilty just to get out of jail.