N.Y.’s Top Court Raises Bar for DNA Evidence

     MANHATTAN (CN) — Although DNA testing gave less than one-in-a-trillion odds that police collared the wrong gun suspect, it was “science fiction” for prosecutors to try to admit this evidence without testimony from the analyst who conducted it, New York’s Court of Appeals ruled Thursday.
     The decision will probably have little practical benefit for Brooklyn resident Sean John, who already served more than four years behind bars for weapons possession and menacing.
     But it will almost certainly make New York prosecutors more circumspect about introducing forensic evidence relied upon in a growing number of cases.
     In January 2010, New York City police responded to a report of a man with a handgun in front of a three-story brownstone. One man told the officers that John pointed the gun at his chest, and a woman said that John had assaulted her hours earlier.
     An initial search of John’s apartment did not initially turn up the weapon. However, they then received a tip from a ground-floor tenant, who told them to look in the basement. There, police discovered a blue box labeled “Smith and Wesson” on the floor, unlatched it, and found a handgun and ammunition.
     Nobody disputed that, if properly administered, the forensic testing that found a single source male DNA profile matching John’s would have served as powerful scientific evidence.
     Prosecutors, however, did not secure the testimony of the analyst who performed the test, but instead relied upon another staffer from the Office of the Chief Medical Examiner to describe the process.
     This testimony proved enough to persuade a jury and an intermediate appellate court of John’s guilt.
     A slim majority of New York’s Court of Appeals found that admitting the evidence through mere “surrogate testimony” violated the Sixth Amendment right to confront one’s accuser.
     “We cannot ignore that the People did not produce the analyst who generated the DNA profiles from either the gun or the exemplar in this case,” Chief Judge Janet DiFiore wrote in a 31-page opinion. “As a result, these critical analysts who engaged in an independent and qualitative analysis of the data during the DNA typing tests — none of whom was claimed to be unavailable — were effectively insulated from cross-examination.”
     Judges Jenny Rivera, Leslie Stein and Eugene Fahey concurred with the opinion.
     “We will not indulge in the science fiction that DNA evidence is merely machine-generated, a concept that reduces DNA testing to an automated exercise requiring no skill set or application of expertise or judgment,” they wrote.
     In a dissent, Judge Michael Garcia wrote that the caution showed by his majority colleagues was “not required by Supreme Court precedent, runs contrary to our own case law, and will cause unnecessary harm to the administration of the criminal justice system.”
     Specifically, Garcia and the other dissenting judges — Eugene Pigott, Jr. and Sheila Abdus-Salaam — said that their colleagues in the majority bucked the Supreme Court precedent established nearly four years ago in the case of Williams v. Illinois.
     In that case, Justice Samuel Alito and the high court’s conservative wing rejected a convicted rapist’s complaint that he lost the right to confront his accuser when state police testified about DNA evidence tested by an outside laboratory.
     The dissenting justices in Williams, led by Elena Kagan, slammed the majority reasoning as “fractured.”
     Garcia said that New York’s high court should have followed the lead of the winning side in that older case.
     “If [Kagan’s] position were to garner five votes in the Supreme Court of course we would be bound to follow,” he wrote. “Until then, we are free to chart our own course based upon the Constitution, our case law, and common sense.”
     Garcia also argued that the requirements established by his colleagues could strain New York City’s Office of the Chief Medical Examiner, which has roughly 150 analysts working in its laboratory on more than 8,000 cases per year.
     As an independent city agency, OCME does not need safeguards from pro-law enforcement bias, Garcia added.
     “There is no reason to conclude that an analyst at a government lab unaffiliated with law enforcement… presents any greater risk of bias for the prosecution,” the dissent states.
     John’s appellate attorney Dina Zloczower said in a phone interview that she was “very pleased” with the decision.
     Helen Peterson, a spokeswoman for the Brooklyn District Attorney’s office, said that prosecutors are “reviewing the decision and considering our options.”

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