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Story Publication logo April 2, 2013

Britain: Scientific Advancements Jeopardize Double Jeopardy


High profile cases often sweat under the media's spotlight. In London, the 15-year focus on Lawrence...


In 2006, a cold case investigation of the Stephen Lawrence murder was launched, despite the acquittal of several suspects in 1996. Nearly $7 million and 18 years after the 1993 racially-motivated murder, Gary Dobson and David Norris were sentenced to life in prison on January 4, 2012.

LGC Forensics, Britain's most prominent forensics laboratory, was primarily responsible for the testing that took place during the investigation. The company has several branches across the country providing various DNA analysis services, such as blood collection and hair microscopy. LGC is impartial and works with both prosecution and defense solicitors.

But the Lawrence case required a unique method of forensic investigation known as mitochondrial DNA analysis, commonly used to test naturally-shed hair follicles or hairs with no root intact. Access to this technology is not yet available in the U.K., so LGC sent several samples of hair found on Norris's jeans to Mitotyping Technologies, a company located in State College, Pennsylvania.

Several scientific procedures were not affordable during the original Lawrence investigation. "To outfit a forensic lab can cost millions of dollars, and salaries and training, validation and accreditation, and all the other processes associated with handling valuable criminal evidence are a big part of a lab's expenses," said Dr. Terry Melton, Laboratory Director at Mitotyping Technologies.

By 2006, however, the Lawrence family had collected enough money to fund the operation. They hoped the Criminal Justice Act of 2003 would allow a re-trial with new-found evidence.

This act, dubbed "the Victim's Justice bill" by former Prime Minister Tony Blair, contains several provisions, one being the exception to double jeopardy in cases of serious offenses. Prosecutors must fulfill certain requirements before a re-trial can take place. First, the case must have "new and compelling evidence" that was not introduced at the original trial; a "public interest" test must be passed to ensure a re-trial would be fair and unbiased; and the Court of Appeal must approve the quashing of the original acquittal. All who are found guilty under a re-trial must be issued a life sentence.

The exception to the double jeopardy rule was first applied to Billy Dunlop, originally acquitted in 1989 for the murder of his girlfriend. Dobson is the second person in the U.K. to be re-tried for the same crime.

While it was Parliament's decision to pass the bill, the Criminal Justice Act was met with much opposition from civil liberties groups and legal professionals.

"I think if someone on the outside was looking in, it [the Criminal Justice Act of 2003] is very political," said Dobson's lead solicitor David Turner. "Challenging double jeopardy isn't something the High Court would do without the lead of Parliament."

Likewise, the U.K. Bar Council and Bar Association issued statements declaring the act a "major scandal" and stating that it places an "unnecessary burden on the defence." They said that even with the requirement of a public interest test, there is little guarantee that juries and judges could remain unbiased in re-trial rulings.

"Overturning double jeopardy is dangerous," said Turner. "Double jeopardy is allowed for new and compelling evidence, but if it's new evidence for the same crime, it's really old evidence then, isn't it?"

Elaine Pagliaro, a forensic science consultant and lawyer, has served as an expert witness in both U.S. state and federal courts.

"Evidence after [a number of] years is 'newly identified' or 'newly analyzed,'" said Pagliaro. "Assuming there has been no contamination of the evidence during previous examinations, it is possible that the evidence was not identified during earlier examinations due to methodology or new equipment."

Uncovering evidence planted years prior raises questions of authenticity. The defense in the Lawrence case challenged the viability of the blood and hair samples presented.

"If it is within the weave of the fabric [it] could have been deposited at any time – before, during or after the incident … but you cannot deposit a blood stain while it is dry," said Pagliaro.

"Forensic biological evidence can remain useful for very long periods of time," Pagliaro continued. "If stored in a controlled environment at room temperature, you can get a DNA profile from samples that are more than 25 years old. One of the reasons cold case examination can be so successful is because the DNA is very stable."

Melton added that "DNA is now routinely obtained from skeletal remains thousands of years old. Many cold cases . . . obtain valid convictions and exonerations. Contamination would have to occur from placement of DNA from the victim or suspects recently. This situation would imply that the evidence was handled badly or deliberately contaminated. A good defense attorney should consider this possibility but a good prosecutor should be able to show that did not happen."

"Of course," Melton continued, "when multiple pieces of evidence analyzed in different labs and by different scientists show the same story, then a big conspiracy would have to be alleged."

The evidence found to convict Dobson was a minute speck of blood, 0.5mm by 0.25mm in size, located in the weave of Dobson's jacket collar. While this evidence served to place him at the scene of the attack, it does not confirm that Dobson physically stabbed Stephen Lawrence to death.

But in the UK, simply being present at the murder is the criminal act.

"Dobson was found guilty by an act of joint enterprise," explained Turner. "I don't think he done it. I think Dobson is a bright, articulate guy. A very pleasant, nice guy. And he has a very strong relationship with his parents."

Scientific technology is transforming the process of serving criminal justice. Decade-old cold cases are reviewed and solved daily using DNA analysis. In coming years, forensics will be used to reconstruct degraded DNA that was once inconsequential. But does this mean that those acquitted should be forced to defend themselves in court once more?

"If a jury was not operating on current or correct facts, a case should be thoroughly reviewed," said Melton. "In most of these old cases, an innocent person is exonerated, and someone who was not known to be the perpetrator is identified and convicted if possible."

Pagliaro's opinion differed.

"I do not believe you can take a not guilty verdict and later have a new trial," said Pagliaro. "The attorney part of my brain says that this is not fair – a right against double jeopardy is guaranteed in the U.S. Constitution."

"While it means that some guilty persons may go free," she continued, "it protects a number of innocent persons who may be pursued wrongly due to misinformation, bad investigation, or vendetta. The reasons behind this guarantee still apply, even though science has advanced greatly."


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