Fabricating Fake DNA, Defending the Accused in the New World

By: Houston Criminal Defense Attorney John Floyd and Billy Sinclair, Paralegal


We have blogged on several occasions in the recent past about the fallibility of forensic evidence, sharing the opinion of others that more often than not it’s “junk science.” However, DNA evidence has generally remained insulated from the ever increasing scientific indictment of forensic evidence in general. Not any more. The New York Times recently reported (August 18, 2009) about a paper published online by the journal Forensic Science Internal: Genetics. Citing this authoritative paper, the Times reported that scientists in Israel have established that it is now possible to fabricate DNA evidence, “undermining the credibility of what has been the gold standard of proof in criminal cases.”


Times reporter Andrew Pollack wrote that “the scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.”


That’s scary Orwellian kind of stuff. The Harris County criminal justice system has suffered through nearly a decade of revelations about how the Houston City Police Department’s Crime Lab routinely fabricated forensic evidence to secure convictions and long term sentences in sexual assault and capital murder cases. DNA evidence was the “silver bullet” that frequently came to the rescue in these cases and resulted in the exoneration of innocent individuals framed by the Harris County District Attorney’s office and the Houston crime lab. There have been at least six such cases, and defense attorneys say there are probably hundreds more in the Texas prison system.


We know the Government not only lies but routinely suborns perjury on a regular basis, especially in terrorism, narcotics and organized crime cases. Defense attorneys must now face the very real prospect that in high profile criminal cases, such as those involving “terrorism” and national security, the Government could literally manufacture a crime scene with the fabricated DNA evidence to convict suspected “home-grown” terrorists, drug cartel kingpins, and Mafia bosses. This is not just idle speculation by a criminal defense attorney with a vested interest.

As Dan Franklin, lead author of the FSI article, was quoted in the Times: “You can engineer a crime scene. Any biology undergraduate could perform this.” Franklin owns a company called Nucleix which he claims has developed a “test” that can distinguish fake DNA samples from real ones.


Let’s hope the test is reliable. The pace at which the “forensic evidence” landscape has changed over the past several years makes one wonder. Tania Simoncelli, a science advisor for the ACLU, expressed these concerns to the Times when she said: “DNA is a lot easier to plant at a crime scene than fingerprints. We’re creating a justice system that is relying on technology.”


While John M. Butler, who heads the identity testing project at the National Institute of Standards and Technology, told the Times that he was impressed with how the researchers were able to “fabricate the fake DNA profiles,” he cautioned that he didn’t think “the average criminal” would be able “to do something like that.”


We agree with Butler, but it’s not the criminal we’re worried about. We’re worried about the Government’s proven willingness, even proclivity, to fabricate evidence in order to secure criminal convictions. The cases are legion in law books involving such prosecutorial misconduct. This nation just suffered through eight years of a presidential administration that casually violated Geneva Conventions, international laws and treaties, and its own federal laws in its pursuit of the “war on terrorism.” The Government no longer sees laws as a way to “protect” society but as a means to control it.


Even scarier is the fact that talk radio, the cable news chatter channels, and the “wing-nut” Internet blogs are filled with hate speech, paranoid conspiracies, and a chorus of demands that the country be freed from the grips of “socialism.” Many ideologues entrenched in government bureaucracies view this sort of social clamor as a license to violate the law in pursuit of a higher, nobler political agenda.


The technicians in the Houston crime lab did not fabricate evidence or give perjured testimony at criminal trials because they had some “personal” agenda to “get criminals.” They believed they were supporting the “law and order” agenda of the District Attorney’s Office, which had actually morphed into a “convict at any cost” political ideology, and, therefore, they were part of some higher, nobler cause to “protect” society.


In the final analysis, criminal defense attorneys are the bastions against these kinds of governmental abuses and lawlessness. The police will not—most certainly cannot—protect the public from them, especially in those situations where innocent citizens are wrongfully accused of criminal conduct with fabricated criminal evidence, perjured testimony, or other government abuses. More often than not, the police themselves are an integral component of the criminal conspiracy to abuse an individual’s civil and constitutional rights. Other times it is an institutional belief that they always get the right guy, then failure to conduct a meaningful investigation and spinning the evidence in the light most favorable to conviction.


And it is the criminal defense attorney who becomes the butt of jokes and ridicule when they try to stop these abuses. They are the ones accused of getting the “child molester” off, not the prosecutor who offered and cut the “deal” that let the offender walk. They must wear the “mark of the beast.” Yet criminal defense attorneys are the first ones the public turns to in times of personal crisis and confrontation with the government—and they rarely, if ever, fail to respond to the call for help.

Law enforcement exists to arrest, prosecutors exist to convict, and criminal defense attorneys exist to serve justice. That’s why we find the latest scientific news that DNA evidence can be fabricated and manipulated so alarming. We don’t see it as a “tool” for criminal to commit more perfect crimes as John Butler suggested but as another weapon in the government’s arsenal to frame those individuals deemed “unacceptable” to society for whatever reason.


It remains to be seen how often the Government will used this new “crime-fighting” weapon, but the fact that DNA evidence can now be fabricated means that at some point the government will use it. You can take that to the bank.


By: Houston Criminal Defense Attorney John Floyd and Billy Sinclair, Paralegal