The DNA

Hennepin county faces a huge case backlog

Under the best of circumstances, waiting for your day in court can be a long process. But for several dozen accused criminals in Hennepin County, that wait has gone from slow to a standstill. Because of a controversy over the state's new DNA test, some 50 to 60 of the county's pending prosecutions--for serious offenses such as murder, rape, and other violent crimes--are simply on hold, indefinitely.

Virtually all of the defendants are still sitting in jail, waiting for their trials to begin. At least one has been in custody for almost two years, and many others for more than a year.

"Every week a trial is set and then delayed," says Hennepin County Attorney Amy Klobuchar. "What's different with this is that it is so broad. It's cases statewide, not just Hennepin County."

The statewide pileup of cases stems from a dispute about the DNA test used by the state to gather evidence from the blood, semen, and saliva found at crime scenes. DNA tests have been employed by Minnesota's Bureau of Criminal Apprehension since 1991, but in 1999 the agency switched to a new generation of test--the "polymerase chain reaction-short tandem repeat" (PCR-STR) test--which used a new technology that promised to provide more information than its predecessors, with the additional benefit of requiring only the tiniest DNA samples.

But the problem, raised by defense attorneys, is that the company that makes the BCA's testing kits won't publicly release their underlying chemistry, claiming that the information is proprietary. As a result, critics contend, the test can't be independently or impartially validated by the scientific community at large. (Although the formulas have been released in protected court proceedings, they have not been made generally available.) The conflict has risen as high as the Minnesota Supreme Court, which is currently reviewing three cases that invite questions about the trustworthiness of the DNA test. At its heart the issue raises concerns about the state's power and its ability to exert authority without offering an adequate opportunity for opponents to check and dispute key evidence.

Prosecutors argue that the underlying formulas used in the kits are irrelevant because the tests have been proven to offer reliable results time and time again. "It's an accepted test throughout the country," Klobuchar argues, noting that the PCR-STR test used by the BCA was also used by NASA to identify remains of the astronauts killed in the Columbia space shuttle disaster. "As prosecutors, we see it as a tool for justice."

But should everyone believe the test works, simply because the state says so? "Basically what the state wants to do here is say, 'Trust us,'" argues Steve Russett, the assistant state public defender who is handling the appeal of the June 2001 first-degree murder conviction of Tony Allen Roman Nose, one of the cases now before the supreme court. "More specifically, 'Trust the company that made this for profit.'"

So far, at least, the courts have sided with critics like Russett. Last March the Minnesota Court of Appeals reviewed the October 2000 second-degree assault conviction of Raymond Traylor and ruled that the DNA evidence from the state's new test should not have been admitted at trial. (Traylor had been accused in the November 1999 stabbing of Debra Clemons. Though he denied the charge, the state introduced DNA evidence it said linked blood on a knife found in Traylor's pocket and on his pants with Clemons's DNA. Traylor was sentenced to more than eight years in prison.)

As a result of that appellate decision, a Hennepin County judge reluctantly ruled that the DNA evidence would not be allowed at trial in eight pending cases, mainly rapes and murders. Now, until the supreme court decides the issue (it is reviewing the Traylor case, the eight consolidated Hennepin County cases, and the Roman Nose case), trials that would normally rely on that DNA evidence are essentially at a dead stop.

Though a decision could come at any time, it may also be several weeks or months before the justices issue an opinion. And the defendants, with very few exceptions, continue to wait in jail until the wheels of justices start moving again.

"People are spending an inordinate amount of time in jail until this gets sorted out," notes C. Peter Erlinder, a professor of constitutional and criminal law at William Mitchell College of Law. "If you're found guilty, your pretrial jail time is usually credited against your sentence. But if you're not guilty, you're incarcerated for a fairly long time. Your life is disrupted. You have to put the pieces together once you're found not guilty."

For its part, the state wants to get on with the trials because they represent some of the highest-profile crimes of the past few years. Among the cases on hold are the March 2001 double murder of an elderly Minneapolis couple; the September 2001 beating and burning of a homeless man; and the November 2001 suffocation of an Edina woman--Edina's first murder since 1993. (Of the 50-plus delayed cases, more than half are rapes, a quarter are murders, and the rest are other violent crimes.)

"Nobody's really happy," laments Patrick Sullivan, a senior attorney with the Hennepin County Public Defender's Office who is in charge of forensic science litigation. "These are serious charges. Most of our clients are in jail, and, of course, they want to have their trial. But they don't want to have this evidence we think is unreliable."

"Because DNA evidence is so powerful, it's particularly important to understand the method under which DNA results are compiled and tested,"

Professor Erlinder cautions. "If it's not possible to examine exactly how it's done and have experts reproduce that, it makes the DNA evidence worthless."

Whatever the decision--and whenever it comes--the delay that began with the Court of Appeals decision last March will undoubtedly cause further strain on a justice system that's already gearing up for budget cuts and overstretched resources. Although generally only about 15 percent of charged cases actually end up going to trial, Klobuchar anticipates that the serious nature of most of the delayed cases will probably land them before a jury.

"There will be a glut of trials for the six months following the issuance of a decision," she predicts.

"It could be a scheduling challenge," agrees Kevin Burke, Hennepin County District Court's chief judge. "There's a logistical problem. There is a finite number of public defenders, and a finite number of prosecutors trying these [cases]. They might not all be matched up appropriately."

And although these cases will remain a high priority, Burke notes that the drain on resources might cause a ripple effect on cases involving lower-level crimes. "I don't think in the end that anybody, being responsible, is going to think that murderers or defendants accused of criminal sexual conduct aren't going to have their cases tried. Victims don't have to worry," he says. "But something's going to have to give. That will probably be some of the neighborhood livability crimes."

Perhaps the biggest kicker is that the state might have avoided the delay in the first place. If it had looked far enough ahead to consider the potential challenges to its new PCR-STR test, it might have selected a different company's equipment--or held on to the old generation of tests, at least during the transition. While prosecutors argue that using the old test is a step backward, at least that test's evidence was admissible in court.

"The prosecutors could drop the charges or use another method not subject to proprietary problems," offers Erlinder. "That's their decision. They walked right into it."

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