Call Today for a FREE Consultation

262-923-8761

24 HOUR EMERGENCY CONTACT

When an FBI examiner misstates DNA evidence, what should happen?

| Jun 22, 2020 | Challenging DNA Evidence

Although DNA evidence can seem very convincing, forensic examiners make mistakes. They can run the test incorrectly. They can miss cross-contamination by other DNA. They can misstate the scientific certainty of their findings.

When an FBI forensic examiner makes such a mistake, it can wrongly convince a jury that the DNA evidence in the case is stronger than it actually is.

In Darius Caldwell’s case, there is no question that an FBI examiner made a mistake that could have wrongly convinced a jury of his guilt. The question on appeal is whether that mistake was bad enough to justify a new trial.

Caldwell was convicted of two Georgia bank robberies that occurred in 2016. The bank robber wore a dreadlock wig and a face mask made out of a bandana and also carried a gun. The examiner claimed that DNA matching Caldwell was found on these items.

The examiner used the FBI’s recommended language for testifying about the likelihood ratio, or the probability that a particular suspect is the source of the DNA evidence. But she made a mistake — she used the word “if” when the recommended language said “that.”

The difference in wording may have had a huge effect:

  • “It was 480,000 and 4.6 million times more likely that Caldwell was a contributor”
  • It was “480,000 and 4.6 million times more likely if Caldwell was a contributor”

Based on this important deviation from the FBI’s recommended language, Caldwell’s attorney asked the 11th Circuit Court of Appeals for a new trial.

There were also other irregularities in the case. For example, the police drove a bank teller to the scene of Caldwell’s arrest and had her identify him. This was done instead of a fair police lineup or photo array, as would be done in a usual case.

US Attorney says the mistake made no difference

“There is simply no statistical or practical significance to the deviations [the examiner] made,” argued the US attorney, who is handling the appeal for the government.

“That can’t be right,” said one of the appellate judges. “You mean to tell me that the testimony didn’t change in any way because of her use of words?”

The US attorney contended that the wording change merely made for an “awkward delivery”; it was too subtle to change the meaning.

But it might have changed the meaning in the ears of some jurors. They could have been convinced by the higher-sounding likelihood ratio. Most people aren’t skilled in statistical probabilities and could be misled by such differences. If a jury could have been confused by the misstatement, that should be enough for a new trial.

Archives

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)