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Criminals try to outwit DNA

By Richard Willing
USA TODAY(used with permission)

Prisoners and suspects across the USA are becoming smarter, or at least better educated, when it comes to undermining the biological evidence that often is critical in criminal cases.

Police and prosecutors from New York to California report that more would-be rapists than ever are wearing gloves, masks and condoms to avoid leaving behind any bodily fluids or other evidence at crime scenes.

In prison, convicts have been caught swapping semen samples to try to defeat genetic tests aimed at linking them to additional crimes. Inmates routinely share tips on how to sabotage crime scenes by, among other things, scattering someone else's semen or blood in order to confuse DNA analysts.

These days, says Austin, Texas, prosecutor and DNA specialist Clay Strange, some suspects seem "like they've been to crime-scene school."

The sinister creativity is aimed at countering authorities' increasing use of DNA tests, which identify a cell acid unique in virtually all individuals.

Perhaps the most potent crime-fighting tool since police began collecting fingerprints a century ago, DNA technology is used in thousands of prosecutions each year.

DNA evidence also has been a savior for some: Since 1989, more than 70 prisoners have been released after genetic tests cast doubt on their convictions.

The increasing savvy of criminals on DNA matters was a hot topic last month at a " DNA summit" of state and local police chiefs that the Justice Department convened in Washington.

Some law enforcement officials are reluctant to discuss criminals' tactics publicly, fearing they might reveal details of DNA testing that would help suspects. But examples of criminals trying to turn DNA testing to their advantage continue to pop up: *

Police in Waco, Texas, caught a suspected rapist decked out in mask and gloves and carrying a condom last year. Down the road in Austin, a suspected burglar was arrested this year wearing protective shoe covers and two pairs of gloves -- just like a lab technician.

* In Astoria, Ore., prosecutors say the number of rape suspects caught with gloves and condoms has jumped markedly in the past three years. *

In Richmond, Va., state authorities have caught prisoners taking DNA tests for each other to avoid being matched to other crimes. *

Since 1995, rape victims in California, Michigan and New York have reported incidents in which their assailants forced them to clean and bathe to try to scrub away any DNA evidence. *

Jailers in Salt Lake County, Utah, say they have overheard prisoners coaching each other on how to spread blood and semen samples from other people around crime scenes to try to fool DNA analysts.

A $50 DNA scheme

One of the more creative inmates to challenge DNA testing was Anthony Turner, 33, of Milwaukee. The police figured he was a rapist; what they didn't know was that the inmate was a self-taught DNA specialist.

Turner was charged with three rapes last year after police matched samples of his DNA to that from fluids found on the victims. Turner claimed he was innocent.

He acknowledged that the genetic material taken from the rape victims matched his but argued that it must have come from another man, an unknown rapist with the exact same genetic code.

Milwaukee authorities just laughed. They knew that unless Turner had an identical twin -- which he didn't -- the chance of someone sharing his genetic code was about 3 trillion to 1. Turner was convicted in March 1999.

A few months later, as Turner sat in jail waiting to be sentenced, something astonishing happened. Police investigating a new rape compared the alleged attacker's DNA with samples from other sex crimes and found a match. It was Turner, who of course had an ironclad alibi -- he was in jail.

Was Turner innocent all along? Against astronomical odds, could there really be another rapist with his DNA profile in the Milwaukee area? If so, that would shatter the entire premise of DNA technology.

As it turned out, the DNA was indeed Turner's. Milwaukee authorities discovered a clever scam:

Turner, determined to cast doubt on the science upon which his conviction was based, had smuggled a sample of his semen out of jail, concealed in what had been a ketchup packet. Family members then paid a woman $50 to use the sperm to stage a phony rape. Turner was sentenced to 120 years in prison.

"The scary part was, here was this really bad guy who understood the science (and) was trying to use it to defeat us," says Milwaukee prosecutor Norman Gahn. "We're going to see more of that as time goes on."

The rise of a technology

DNA -- deoxyribonucleic acid -- was discovered in 1869 by German biochemist Friedrich Miescher. The acid, contained in the nuclei of most cells, builds the proteins that determine a person's inherited traits. It wasn't until the early 1980s that researchers, including Roy White of the University of Utah and Alec Jeffreys of England, hit on ways to use DNA fragments as what Jeffreys called "genetic fingerprints."

DNA was first used in a U.S. courtroom in January 1987 to convict a Florida teenager of sexual battery. Two years later, amid growing publicity about the technology's power, DNA helped free a man who had been convicted of rape in Chicago by showing that he could not have produced the semen that had been removed from the victim. It was the USA's first DNA -related exoneration.

Like the general public, prisoners and would-be criminals have become more and more knowledgeable about DNA technology's potential. Stories about prisoners being released because of DNA evidence have become commonplace. The Innocence Project in New York City, which examines questionable convictions, says DNA tests have been linked to 72 exonerations since 1989.

Prosecutors order an estimated 10,000 DNA tests a year. Some of those lead to prosecutions. Many more clear the test-takers of involvement in crimes.

Meanwhile, prosecutors say, DNA has become a favorite topic of conversation among convicts.

"You're talking about guys who are locked up 24/7 (around the clock) with nothing to do but read the paper, watch TV and bull- - - - each other," says Dennis Bauer, a deputy district attorney in Orange County, Calif., who has prosecuted several cases involving DNA evidence. "They are passing around information and misinformation (about DNA) all day long."

DNA has become a regular element of television shows and films about cops. Three seasons back, ABC's NYPD Blue featured a subplot in which a rapist tried to cover his tracks by scattering strangers' semen on his victims.

A planted semen sample was central to the plot of Presumed Innocent, the novel published in 1987 by Scott Turow, a best-selling crime novelist and former federal prosecutor in Chicago. Turow says the invented incident was "just a fancy of mine" at the time, although he recently heard of a similar real-life case.

Arlington, Va., lawyer Jerry Lyell blames "questionable" police practices for helping spread awareness of DNA among crime suspects. Suspects, Lyell says, have learned that police can "trap" them by lifting DNA from cigarette butts, beverage containers and even spittle left on interrogation room floors, even if the cops don't have enough evidence to get a search warrant.

"It's being used unfairly all the time," says Lyell, who specializes in cases involving DNA evidence. He says he tells clients who are interviewed by police not to "spit (or) smoke, (and) don't take anything to eat or drink."

Attempted dodges

Attempts to defeat DNA testing are as old as the technology itself.

In the first recorded criminal case involving DNA, bakery worker Colin Pitchfork was convicted in 1987 of raping and killing two teenage girls in the English village of Narborough.

Using tests that had just been developed by Jeffreys, police drew blood from 4,582 local men but did not find a DNA match to the rapist. Pitchfork was caught after a villager overheard him describe how he had paid a co-worker to provide a sample for him.

Convicted rapist and kidnapper Kerry Kotler can testify to DNA's power to exonerate and to convict. Kotler, of Montauk, N.Y., was freed in 1992 after DNA tests cast doubt on his two rape convictions by showing that semen from the victim could not have come from Kotler alone. Prosecutors protested, noting that the still-primitive tests left open the possibility that Kotler was the rapist.

Four years later, Kotler was charged in a new rape. This time, the victim alleged that he carried a water bottle and attempted to clean away semen after the assault. New, improved tests lifted samples of Kotler's semen from his victim's clothing and helped to convict him.

Kotler, now 41, was sentenced to seven to 21 years. A month earlier, he had won a $1.5 million judgment for being wrongly imprisoned in the first case.

Among criminals and would-be criminals, knowledge of DNA remains imperfect. Josh Marquis, district attorney in Clatsop County, Ore., says many criminals and suspects have a simplistic view of the technology.

"They think we can drop a tiny dot of blood or sweat into a machine, and then their picture just pops up on giant screen," says Marquis, a board member of the National District Attorneys Association. "We don't tell 'em any different."

Others get caught because they have learned a little but not enough about the power of DNA testing. Paul Ferrara, who directs Virginia's highly regarded database of DNA from convicted felons, tells of "glove-wearing, condom-wearing, mask-wearing" rapists who left DNA behind because they kissed or bit their victims.

"Guess they missed the chapter about epithelial (skin) cells in saliva samples," Ferrara says.

Law enforcement's best weapon, says Aaron Kennard, sheriff of Salt Lake County, Utah, is criminals' overinflated view of their own intelligence.

"Their problem (in trying to manipulate DNA tests) is that they think they're smarter than everyone else," Kennard says. "If they were smart, they wouldn't be in my jail."

Keeping a step ahead

For now, law enforcement is relying on continuing advances in DNA technology to stay a step ahead.

Recently improved tests make it difficult to ruin a crime scene by spreading strangers' DNA. Enough DNA to form a near-certain match is now routinely lifted from fingernail clippings, hair particles, tiny sweat stains and even dried saliva from old postage stamps.

"These days, you need to wear a spacesuit to commit a crime without leaving any ( DNA) behind," Kennard says.

But police and prosecutors don't expect criminals to stop trying to subvert DNA tests. Cases such as that involving Turner's fake-rape scheme give them chills.

"I've never heard of anything that wild, but then again, why not?" says Rockne Harmon, an assistant district attorney who specializes in DNA prosecutions in Oakland, Calif.

"You've got to wonder what a mind like (Turner's) would amount to if he ever put it to good use. (But) I don't think I'd hold my breath waiting."


 

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