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Milwaukee Criminal Defense Law Blog

Even more private genetic info could be in databases soon

Do people have any real privacy rights when it comes to their DNA? Who should have the right to own or control information about your DNA?

A recent article in The Atlantic revealed that some DNA testing companies are now ready to test old-fashioned envelopes and stamps that people would lick to dampen the adhesive. Licking the adhesive would have deposited DNA that may still be preserved enough to test.

DNA can be transferred to objects via handshakes, at random

Could ordinary contact with other people spread your DNA to objects you've never touched?

Yes, according to an important presentation at a recent meeting of the American Academy of Forensic Scientists, an internationally prestigious event held each year. About 7 percent of the time, DNA was transferred to a knife by a person's handshaking partner. This occurred after only a 10-second handshake.

'Making a Murderer' defendant Steven Avery wins evidence appeal

If you remember the Emmy Award-winning documentary series "Making a Murderer," you know there is good reason to suppose that the defendants, Steven Avery and Brendan Dassey, were wrongfully convicted of the murder of Teresa Halbach. As the documentary showed, Attorney Dean Strang and I represented Avery at trial.

Recently, Kathleen Zellner, the current attorney for Avery, won an appellate motion. Ultimately, the win could lead to a new hearing, a new trial or a reversal of his conviction.

Attorney Zellner had previously moved to have certain evidence DNA tested with a newly developed type of DNA test -- a number of suspected burned human bones that might have belonged to the victim. 

10 years after the NAS report, is forensic science more reliable?

Forensic In February 2009, the National Academy of Sciences (NAS) released a ground-breaking report called "Strengthening Forensic Science in the United States, A Path Forward." Researchers at NAS had looked at the state of forensic science in the U.S. and found serious problems.

According to the NAS, forensic evidence often lacks sufficient scientific underpinning. Forensic testing is too often performed by poorly trained analysts with a demonstrable prosecution bias. When these analysts testify, they routinely exaggerate the certainty of their findings.

SCOTUS: Can prosecutors withhold evidence before guilty pleas?

In 1963, the U.S. Supreme Court held in Brady v. Maryland that police and prosecutors are legally bound to turn over so-called "exculpatory" evidence to the defense before trial. Exculpatory evidence is most anything favorable to the defense. It can be evidence that the defendant is innocent, that someone else could be guilty, or that there were mitigating circumstances. Or, it can cast doubt on the reliability of prosecution witnesses.

Yet well over 90 percent of criminal cases in the U.S. are resolved by plea bargain. Unfortunately, there is immense pressure to plead guilty, even for innocent people. Demanding a trial often means a long pre-trial detention and the threat of a much harsher sentence.

False positives common in drug field tests; the innocent at risk

Matthew C. was charged with possessing 92 grams of heroin after a baggie full of white powder was discovered in his van. The powder allegedly tested positive for heroin in a field test. In reality, it was laundry detergent.

Matthew was innocent but was charged with crimes that could lead to 15 years in prison. His bail was set at $500,000, an amount he couldn't possibly afford. Even his family doubted him. He spent 41 days in jail awaiting the official lab results that would exonerate him.

NBC examines the issues with common forensic evidence

If you've been reading our blog, you know that many common forensic evidence techniques have been called into serious question by scientists. Yet police, prosecutors and judges continue to use or allow these techniques to be used. Sometimes, it seems as if they are used simply because they have been in use for so long. That isn't sound policy.

"If we don't have technologies that are objective, repeatable and reliable, then we have no idea how many times we're making the wrong decision," says the director of the Center for Statistics and Applications in Forensic Evidence, a government-funded project aimed at determining the useful limits of forensic evidence. "We don't even have a way to estimate how many times we're making the wrong decisions."

Some DNA testing now being done by police, not accredited labs

"Rapid DNA" machines are a new phenomenon in criminal justice. Able to process a DNA sample in just 90 minutes, they're often called "the magic box." The machines are small enough to be used by police departments. Until now, DNA testing has been performed exclusively by forensic scientists in neutral, accredited labs.

When Rapid DNA was tried in Sweden, the Swedish Forensic Center shut the program down before the trial was over. For one thing, almost a quarter of the blood samples tested didn't result in a usable DNA profile -- and the test consumed the sample.

Analysis reveals more flawed forensic evidence being presented

"How many cases of innocent people being wrongly convicted have to occur before people realize that there's a very broad spectrum of forensic science?" asks U.S. District Court Judge Jed Rakoff, a former member of the National Commission on Forensic Science.

For the past five decades, FBI examiners have used image comparison to tie defendants to crime scenes. Image comparison has been used in thousands of cases, yet studies have shown several of its underlying techniques to be scientifically unreliable.

Vermont high court case a landmark civil rights victory

In 2014, an African-American man named Gregory Zullo was pulled over in Vermont after an officer noticed his license tab was partly obscured by snow. At the traffic stop, the officer also noticed a bottle of Visine, an air freshener and a faint smell of marijuana, which has been decriminalized in Vermont. Zullo admitted having smoked marijuana three days' before.

When Zullo refused permission to search his car, the officer had the vehicle towed to the station and left Zullo to hitchhike eight miles home in the snow.

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