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Judge Attacks Controversial DNA Software That's Still Used To Send People To Prison
By
George Joseph
Published Oct 4, 2019
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By
George Joseph
Published Oct 4, 2019
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Two years ago, New York City’s Office of Chief Medical Examiner retired a controversial DNA analysis program, known as the Forensic Statistical Tool [FST]. Launched in 2011, the in-house software was used to compute the likelihood someone’s DNA is present in a complex mixture containing multiple individuals’ DNA. But before its phase-out, critics cast serious doubts on the design and testing of the secretive algorithm, prompting one Brooklyn judge to discard evidence gleaned from the software in 2014.
Now, five years later, that same judge, Mark Dwyer is building on his past argument that courts cannot trust FST findings. In a written decision issued last week, Dwyer, now a Manhattan judge, declared there is “no scientific consensus” on the legitimacy of the tool. The decision matters because defendants today are still facing FST evidence in years-old cases. And as the opinion notes, many defendants convicted with its evidence “may still wish to challenge the FST on appeal.” As of 2017, the OCME estimated that FST was used in 1,350 cases, according to The New York Times.
In 2017, the OCME abandoned the FST program in place of another more commonly-used software, known as STRMix. The switch came as computer scientists, former lab officials, and defense attorneys voiced concerns about the program’s accuracy. (At the time, the OCME insisted FST was scrapped for unrelated reasons.) Despite the controversy, appellate courts since then have affirmed convictions that relied on FST evidence.
Dwyer’s opinion seeks to reverse this trend, a move which could call numerous convictions and ongoing cases into question, if taken seriously.
In the decision, the judge challenged what he called “unfair attacks” on scientists who criticized the DNA program, and brought up a 2016 White House report, which cautioned that software like FST needed careful review to ensure that its methods were scientifically valid.
Dwyer, who formerly served as the Chief of the Manhattan DA’s Appeals Bureau, also called on fellow judges to exercise caution when considering evidence derived from methods that have not been thoroughly agreed upon by the scientific community.
“And this judge continues to conclude that we should not toss unresolved scientific debates into judge's chambers, and especially not into the jury room,” the decision reads. “That conclusion applies to FST evidence—still.”
Public defenders and appellate attorneys are hoping the ruling will give them more muscle to challenge past convictions and ongoing prosecutions.
“All thirteen hundred of the cases where FST was involved should be reviewed at least to tell if FST was a deciding factor,” said Allison Lewis, a staff attorney with the Legal Aid Society’s DNA unit. “Any client who had FST in their case and is now sitting in jail, or is now with a conviction on their record, is entitled to review the role FST played.”
“People are still facing this evidence, people are still taking pleas, making life changing decisions about going to jail or challenging the results based on the FST program,” Lewis said.
Public defenders want prosecutors and the OCME to lead a campaign notifying defendants who were convicted based on FST evidence. In Texas, after a similar DNA testing controversy, DAs and crime labs worked together to identify and review thousands of convictions.
The OCME declined to comment on whether it would consider such a plan or answer questions about the implications of Dwyer’s ruling. But appellate defenders say they are skeptical the medical examiner would assist in such reexamination efforts.
“The OCME in New York has adamantly stood by the FST testing, and has actively resisted questions and opening up data,” said Claudia Trupp, director of the Center for Appellate Litigation’s reinvestigation unit, pointing to the medical examiner’s past refusals to release the program’s source code. “And so it is really a question of the attitude and resistance out of the OCME that’s making it different in New York.”
Nonetheless, Trupp said that Dwyer’s new decision would be helpful in appellate courts. “We have continuously been fighting the admissibility of FST evidence. Our position has been there is no consensus about its reliability,” she said. “This type of opinion shores up those arguments that we are actively litigating in the courts at this time.”
George Joseph can be emailed securely with a protonmail email account at [email protected]. You can also text him, via the encrypted phone app Signal or otherwise, at 929-486-4865.
Tagged
DNA evidence
fst
George Joseph
George covers Brooklyn for THE CITY with a focus on criminal justice and housing. He previously worked for WNYC and Gothamist, and has published stories with NPR, ProPublica, Esquire, and The Intercept among other outlets.
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