The court hearing for the Rafay/Burns appeal will be held on February 16th in Seattle. The appeal is focused on Judge Mertel’s ruling to disallow alternative suspect evidence in the trial and the reliance on confession evidence from an RCMP sting (Mr. Big) in a US trial. The state appeal court rulings, supporting the 2004 convictions, are said to lack merit.
From the beginning, no hard evidence existed to tie Atif and Sebastian to the incredibly bloody and grisly crime of murdering the Rafay family. Their alibis as to where they were that evening are still airtight. That the trial court admitted the sting videotapes (see “The Confession Tapes” on Netflx) and that the trial verdict and sentencing are such terrible injustices, almost equivalent to the original crime, is an indication of how important it is to follow the Constitution in criminal trials and to counter the desire of ambitious prosecutors to cut corners with that foundational document.
May the federal appeals court be guided by the truth. That’s all we can ask, because, in the end, the truth will set them free.
That’s great news, Ken. Thanks for sharing!
DNA evidence has convicted many killers, it has also set free those wrongfully convicted, it is perhaps apart from a confession an absolute tie to a crime. For a justice system to ignore such evidence shows that the scales of justice are tipped in favour of conviction by any means neccersary, there is no place in our society for such an archaic legal system. It further shows the ineptitude of law enforcement in allowing the real killers to walk freely among us without care for others who may have been murdered since the Rafay family murders. How can we know? We can’t because the police allowed them to walk free. Who knows how many more victims of these vicious murderers there are. The police have their names, their DNA, and witness statement, and yet not a single lead was investigated. The Bellevue police department are entirely responsible for allowing vicious murderers to walk among us, this cannot go unchallenged, and why you folk put up with this is truly mind numbing.
Hi Steve,
What you say about DNA evidence is certainly true, but one still needs to be cautious. Cases do exist where a person was identified through DNA, but the “markers” were insufficient for certainty. Hence, wrongful convictions do occur with DNA evidence, albeit incomplete DNA evidence. I’m including an article here from JSTOR Daily, a reputable source. It’s also worth reading the work of Greg Hampikian at Boise State who goes into “markers” with greater scientific precision.
Still, DNA errors are far fewer than errors of human perception, often unconsciously motivated by the ambition of police and prosecutors. They see what they wish to see and then, through ‘confirmation bias’, find a way to make the case. They might be able to convince a jury even when hard evidence leads in contrary directions. Surely this was the case in Rafay/Burns. At some point, usually too late, they might wake up to see their error.
One item that’s often overlooked is the role of the judge; no case I’ve ever looked at has ever been more prejudiced by a judge (Mertel) than Burns/Rafay, where, hoping to ensure the conviction, the judge did not allow the defendants to present alternate theories and did not allow experts on false confessions and sting operations to testify in court. As Rubin Carter used to say: “The judge is a part of the prosecution.”
WHAT FOLLOWS HERE IS THE ARTICLE FROM JSTOR Daily
DNA profiling has had some remarkable successes, including finally ending a two-decade long hunt for the “Green River Killer,” who strangled at least fifty women, dumping their bodies in various spots around the Green River in Washington State. However, DNA profiles are often not clean enough to conclusively identify an individual. Ideally, a DNA sample would be complete enough to examine at least 16 different “markers,” points at which an individual’s DNA fingerprint can be sketched out. But when DNA is damaged, as it often is through exposure to moisture or extreme temperatures, only some of these markers will be available, and forensics teams will generate a partial profile. Put simply, if a DNA profile is a complete description of a person’s appearance, a partial profile might describe only one of their traits—hair color, for instance.
Even full DNA profiles may match with a person other than the culprit.
Partial profiles will match up with many more people than a full profile. And even full profiles may match with a person other than the culprit. Further complicating matters, a single DNA profile might be mistakenly generated when samples from multiple people are accidentally combined. It’s a messy world.
Realistically, then, DNA profiles should only be thought of as being likely to have come from a specific individual. Statistical approaches such as “match probability,” which is based on comparisons between crime scene DNA and a hypothetical “random” person, often are misunderstood. A more rigorous statistical approach is likelihood ratio, which directly compares two hypotheses: the likelihood of the DNA coming from the suspect vs. the likelihood of the DNA coming from someone else. If the likelihood ratio is less than one, the defense position (the DNA is not the suspect’s) is better supported; if it is greater than one, there is more support for the prosecution case. Still, the ratio at most provides scientific support for a theory, not a yes-or-no answer.
* * *
A study from the University of California published in Law and Human Behavior tested undergraduate students’ abilities to interpret statistical evidence as it would be presented in court by prosecution and defense attorneys. The researchers found that the majority of these undergraduates failed to detect errors in statistical arguments and “made judgements based on fallacious reasoning.”
“Telling a jury it is implausible that anyone besides the suspect would have the same DNA test results is seldom, if ever, justified.”
When the American Bar Association reported on DNA technology, it backed the use of DNA evidence, but urged caution in how statistics were interpreted. The ABA urged lawyers not to oversell DNA evidence and suggested that courts take the standards of the lab into account when considering DNA evidence. “Telling a jury it is implausible that anyone besides the suspect would have the same DNA test results is seldom, if ever, justified,” the report states.
In addition, the European Forensic Genetics Network of Excellence (EUROFORGEN) and the charity Sense about Science collaborated on a report released earlier this year. The report sought to clarify what DNA analysis can and cannot do within the criminal justice system. EUROFORGEN researcher Denise Sydercombe Court, based at King’s College London, said:
We all enjoy a good crime drama and although we understand the difference between fiction and reality, the distinction can often be blurred by overdramatised press reports of real cases. As a result, most people have unrealistic perceptions of the meaning of scientific evidence, especially when it comes to DNA, which can lead to miscarriages of justice.
At times, DNA evidence has been misused or misunderstood, leading to miscarriages of justice. A man with Parkinson’s disease who was unable to walk more than a few feet without assistance was convicted of a burglary based on a partial DNA profile match. His lawyer insisted on more DNA tests, which exonerated him. In 2011, Adam Scott’s DNA matched with a sperm sample taken from a rape victim in Manchester—a city Scott, who lived more than 200 miles away, had never visited. Non-DNA evidence subsequently cleared Scott. The mixup was due to a careless mistake in the lab, in which a plate used to analyze Scott’s DNA from a minor incident was accidentally reused in the rape case.
Then there’s the uncomfortable and inconvenient truth that any of us could have DNA present at a crime scene—even if we were never there. Moreover, DNA recovered at a crime scene could have been deposited there at a time other than when the crime took place. Someone could have visited beforehand or stumbled upon the scene afterward. Alternatively, their DNA could have arrived via a process called secondary transfer, where their DNA was transferred to someone else, who carried it to the scene.
Additionally, DNA technology is becoming more and more sensitive, but this is a double-edged sword. On one hand, usable DNA evidence is more likely to be detected than ever before. On the other hand, contamination DNA and DNA that arrived by secondary transfer is now more likely to be detected, confusing investigations. If legal and judicial personnel aren’t fully trained in how to interpret forensic and DNA evidence, it can result in false leads and miscarriages of justice.
Another consideration is that people shed DNA at different rates. DNA is found in bodily fluids, such as blood, semen, and saliva, but we also lose microscopic pieces of skin and hair on a regular basis. Some people lose DNA more quickly than others—if they have a skin condition, for example. If a thief uses a particular location as a stash, and a caretaker who suffers from eczema stumbles on it and reports it to the police, the forensics alone might implicate the caretaker. The quantity of their DNA present might suggest a significant period of time spent at that place. But in fact, the caretaker’s eczema resulted in more DNA being deposited there over a shorter time period.
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National DNA databases, then, present some ethical quandaries. Many cases would never have been solved if not for DNA databases. In the Lynette White case, the breakthrough came when the police obtained the DNA profile of a relative of the murderer. However, the retention of DNA details raises legitimate privacy concerns, especially in the context of familial searching. Partial matches are more likely to lead to false positive identification of suspects who are already in the DNA database. Given that less privileged groups tend to be over-represented in DNA databases, this is a serious issue.
In 2011, a group of scientists asked whether forensic DNA databases increase racial disparities in policing. They pointed out that, in the U.S., different communities are differently policed, leading to different rates of incarceration and DNA recording. According to the study authors, actual drug use is relatively higher in white communities, but “buy and bust” operations by police are more common in African American and Latino communities, leading to disproportionate arrests.
The lesson of all this research: DNA evidence is a powerful tool in criminal investigation and prosecution, but it must be used with care. It should never be oversold in court, and it should only ever be considered in light of other available evidence. For example, if DNA is recovered in a kitchen that has been broken into, it could be from the homeowner, their guests, or even a member of the CSI team (if sufficient care hasn’t been taken to avoid contamination). If a tool-mark impression reveals that a screwdriver was used to force open the window, and DNA is recovered from a screwdriver found at the scene that does not belong to the homeowner, that’s incriminating. If that DNA is a partial or full match with an individual with the same shoe size as a footprint left in the grass under the window, even more so. If that individual has a torn piece of clothing that matches cloth fibres snagged in the window, that’s more incriminating still. If digital evidence such as their mobile phone records place them at the scene at the time the break-in happened—even though they claim to have been elsewhere—then you have a more complete picture.
DNA Report Raises Concerns: Study backs genetic evidence, but questions reliability of labs, statistics
By: Don J. DeBenedictis
ABA Journal, Vol. 78, No. 7 (JULY 1992), p. 20
American Bar Association
Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence
By: Sean E. Goodison, Robert C. Davis and Brian A. Jackson
Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence, 2015
RAND Corporation
May the truth finally win. There are multiple lines of evidence showing that these two men are innocent.
I agree 100% with your sentiment, Jake, but it needs to be pointed out that innocence is very hard to prove. They say a person is exonerated because evidence has proven conclusively that someone else committed the crime for which they have been convicted. So two classes of wrongful conviction have been artificially created: 1) where the real culprit either confesses or is positively identified through DNA evidence; and 2) where legal error or false confessions, witness error or witness fabrication and so forth overturn a conviction. District attorneys and courts might sooner release someone in the first category than in the second.
When someone from the first category, i.e. scientifically verified, is released, the legal apparatus deems him or her as exonerated. In the second category, they usually say that insufficient evidence exists to keep them imprisoned. The distinction, such as it is, plays into financial compensation for the wasted years and into societal beliefs: ‘they escaped on a technicality’. Rubin Carter insisted that he was exonerated even though no one was ever charged with the murder of three people at the Lafayette Bar and Grill. When I asked him how he could say that he was exonerated, his answer was emphatic and unequivocal: “There’s only ONE category of wrongful conviction. Whether you’re released on trial error or someone else’s confession, it don’t mean a damn. You are innocent until proven guilty.” A faulty trial is a way of saying that a defendant was never proven guilty.
With Rafay/Burns, the evidence shows that others may have committed the crime and that it is unlikely the two teens killed the Rafay family. Had the jury understood or known that this was the case, Rafay and Burns could not or should not have been convicted. There is NO way that the standard of ‘beyond a reasonable doubt’ would have been satisfied had all the evidence been allowed into the courtroom.
This being said, legally speaking, ‘not guilty’ is not the same thing as innocence. But exoneration is exoneration.