July 2015

If I read the signs right, I believe that the hysteria revolving around the so-called “sex offenders”—which hysteria has not only affected society in general, but even the courts—is finally beginning to slowly abate, if some legal cases in Texas are any indication. See Green v. State, 350 S.W.3d 617 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Lape v. State, 893 S.W.2d 949 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d); Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013); Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012). Consequently, I think it is high time to discuss the matter rationally and coherently (for a change), at least in print.

Since my position will undoubtedly be misrepresented, either mistakenly or deliberately, let me begin by stating the very obvious: Rape and the (deliberate) sexual molestation of children should both be punished and punished harshly.

Having said that, let me also proceed by making several assertions, which will be the topic of this brief article and which will probably be resisted by many—to wit, that: (1) the term “sex offender” is a misnomer; (2) there are persons who have been convicted as “sex offenders” but who are nothing of the sort and do not fit the above descriptions, although they are treated as such by the legal bureaucracies; (3) many persons—too many in fact—have been falsely accused and even convicted of a sexual offense due to a climate of hysteria that has lasted for decades, fostered by a spirit of “lynch journalism” in the media and by special-interest groups; (4) state bureaucracies have seized on the hysteria as an opportunity to render null and void various constitutional rights, the bureaucrats defending their actions in a self-righteous posture; (5) many of the “sex offender” treatment programs mandated by the courts are a shameful farce, sometimes carried out by opportunistic and unethical therapists; and (6) sex offender registries have served as a vehicle for additional legal punishments and extra-legal harassment and can be attacked from different angles than have been done heretofore.

I will now treat these topics in this brief essay in no particular order, but first a little background may be in order, which may be unpleasant to the reader. And that is: Modern-day teenagers think about sex and engage in sex. A lot. Some are very sexually active and start as young as 12 (and if the reader does not believe this, then he is seriously out of touch with reality).

Historically, a person was considered to be an adult the moment that he/she entered puberty—which even though one may not agree with the idea does have a certain logic to it. They could marry and males could also do military service. However, in the late 1800s, western societies started to prolong childhood further and further; for one thing, child labor laws were passed. This concept of prolonging childhood as long as possible can be seen today with college “kids” continuing school into their late twenties. But more relevant to the matter at hand is the uncomfortable fact that the age of consent varies from state to state and with it, the feeling of indignation and the idea of what constitutes a “sexual predator.”

And as tragic as is the act of being falsely accused of being a sex offender, what is equally tragic is being falsely accused of being a victim. In regards to consensual sex, a sexual encounter that would ordinarily be considered pleasant or memorable or regrettable becomes in retrospect highly traumatic once one of the persons is labeled as A Victim, for no other reason than the other partner is a few years past the designated boundary. As such, teenagers then truly become psychologically scarred when told they have been traumatized, and the event turns into a life-altering experience that will forever haunt The Victim.

But to return directly to the matter at hand.

First, the term “sex offender” is a misnomer because it implies that the person so labeled is presently actively engaged in sexual perversions. Why is this important? Because if a person has been convicted in the past of an offense, it took place in the past. As such, the hysterics in the media are implying that these individuals who paid their debt to society are still actively engaged in perversions, whereas in reality, and contrary to popular belief, “sex offenders” have statistically the lowest recidivism rate. Worse, if one of these individuals is indicted under the onerous registrations laws, he is presented to the jury by the prosecutor as a “sex offender”—that is, that he is actively engaged in perversions and a conviction is sure to follow, regardless of the evidence. Or lack of it. This is similar to the important distinction that Hayakawa once pointed out—namely that it is different in being called a thief and being described as having once been convicted of theft.

And this brings me to another matter. There are many people who have been falsely accused and even convicted of a sexual crime (e.g., Richardson, Darrell, The Effects of a False Allegation of Child Sexual Abuse on an Intact Middle Class Family. IPT, 2, 4–9 (1990)). I simply refer the reader to the following books documenting the overabundance of false accusations of rape and sexual molestation: The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse by E. Loftus; Satan’s Silence: Ritual Abuse and the Making of a Modern American Witch Hunt by D. Nathan and M. Snedeker; The Child Abuse Industry: Outrageous Facts About Child Abuse & Everyday Rebellions Against a System That Threatens Every North American Family by M. Pride; Victims of Memory: Sex Abuse Accusations and Shattered Lives by M. Pendergrast; and The Day Care Ritual Abuse Moral Panic by M. De Young.

Recently, an article in Rolling Stone detailed a terrible case of gang rape in a fraternity. It was a lie. When the deception was revealed, was there an outcry against false accusations? No. Instead, the almost universal reaction in the media was the agonizing hand-wringing that this episode would inhibit “other” rape victims from “stepping forward with their stories.” So the hysteria goes on.*

But what about the following individuals (all true cases): a) a 19-year-old boy who has been dating his 16-year-old girlfriend for months engages in consensual sex, is arrested and convicted, and subsequently marries his “victim”; b) a man has been camping near a river for days and goes to the river to bathe—just as a couple of girls canoe past and report him; c) at a party in college where the alcohol has been abundantly flowing, a drunken student “gooses” a coed, the coed decides that she has been sexually assaulted and at the urging of others, files rape charges; and d) parents who photograph their naked toddler as he is sleeping on his tummy and develops the photograph at the local store get reported by the store clerk and are arrested for child pornography.

I submit that contrary to the vociferation of some people, none of these individuals are rapists, child molesters, “sexual predators,” or “sex offenders.” But I leave it up the reader to decide.

I would now like to point out how the constitutionally protected rights have been nullified in regards to “sex offenders,” but let me once again digress.

Having an interest and one of my degrees in history, I often racked my brain trying to understand how it was possible that once in power, the Bolsheviks could have taken control of a country so vast as Russia when they were a small political party devoid of a strong presence outside of a half-dozen Russian cities. Later, when the Soviet Union imploded, the bureaucrats did not launch a resistance to democracy, but instantly went along with the new order, and when subsequently the government under Putin became autocratic, the bureaucrats went along. Likewise, how could the Nazis gain total control of arguably the most civilized country in Europe so quickly? The answer to both questions, I realized much later, was through bureaucracies and the nature of bureaucrats, particularly state bureaucracies. One of the psychological characteristics of bureaucrats is that they will instantly adopt, embrace, and energetically enforce whatever new policies become official from above—no matter how bizarre. I thought, however, that something like that might be likely in European and Asiatic countries with their long history of authoritarianism, but it was not going to happen in America, where liberties are ingrained in every individual. The case of “sex offenders” has completely disillusioned me. Consider the following:

In the Great State of Texas—and Texas is not an anomaly—persons who have been labeled as “sex offenders” and who are under the thumb of the parole and probation bureaucracies are prohibited from expressing their religion. They cannot put up decorations during religious holidays. Supposedly, children and teenagers who see a sign during Christmas stating “Peace on Earth,” or a sign in Easter exclaiming “Christ has risen,” or “Happy Thanksgiving” during Thanksgiving will be irresistibly compelled to go towards the door or window that exhibits the sign. There, they are sure to be molested by the “sex offender” living at that location. And, if one has an ankle monitor and is under super intensive supervision status—say, for having moved residences three weeks before notifying the authorities—that person cannot even attend religious worship on Sundays since he has a weekend lockdown. So much for freedom of religion.

Next comes freedom of speech and press. Many such individuals are prohibited from attending concerts, plays, jazz festivals, stage plays, and movies. They are also prohibited from owning a computer that has no access to the internet and from using a library’s computer. Why this particular rationale? Well, they might access porn websites—on a computer that has no internet connection, or on a public library computer with safeguards against accessing porn sites. In the (admittedly rare) instances of a “sex offender” doing any kind of pro se research, legal or otherwise, that activity is hobbled as a result of that prohibition.

“Sex offenders” are also prohibited from being in places where children might be found, a ridiculously broad prohibition since children are found practically anywhere. In fact, the only places where they cannot be found are—ironically—porn shops and strip joints! That is how the mind of a bureaucrat works. (Incidentally, the bottomless arrogance of a parole or probation bureaucrat in Texas has to be experienced firsthand to be believed; I have talked with some of them who have insisted that they are independent of the courts and do not have to obey them, while others have maintained that the individuals whom they supervise have forfeited any constitutional rights because of their crimes. I am not exaggerating.)

What is next? Well, how about freedom from self-incrimination? Here, the authorities have been truly creative in mandating yearly polygraphs as . . . “therapy.” And only those therapists who agree to administer polygraphs to their clients and give the results to the legal authorities are given a nice, fat contract. And do I need to say that those results have been used to prosecute sex offenders (Marcum v. Texas, 983 S.W.2d 762 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d), even though polygraphs have for decades been otherwise excluded from being used in courts of law for any other matter? The long-standing tradition of confidentiality between client and therapist, one that is constantly emphasized in their training, has been eagerly thrown out the window as sex offender thera­pists have embraced the role of be­ing snitches through the transparent, ridiculous sophistry that the state is the client. Incidentally, if a client maintains his innocence of the original charge and the polygraph concludes that he is telling the truth, the therapist will point out that the instrument is flawed and unreliable. If he fails the polygraph, however, the results are valid and he is lying.

The profession has also traditionally emphasized empathy and support for clients, but this outlook has been likewise turned on its head. Enter some therapists’ offices and the hatred is instantly palpable, from the receptionist to the therapist. Any personal problems or stress that the client is experiencing is brushed off as the therapy of choice consists of encouraging constant self-flagellation, with occasional screaming. Most of the so-called therapies being used are a travesty and consist of constant recriminations.

To my knowledge, and as odd as it may seem, the above blatantly anti-constitutional restrictions do not appear to have been challenged in the courts. However, the sex offender registries have been taken up all the way to the Supreme Court under the basis that the registries are ex post facto (Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010); Reynolds v. United States, ___U.S.___, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); United States v. Kebodeaux, ___U.S.___, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013); Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003)). Unfortunately, the Supreme Court ruled, with a pretzel-like logic, that since the intent of the registries was not punitive, the argument did not apply even though the detrimental aspect of registries (vigilantism, restrictions on residence, lack of privacy) has been thoroughly documented—which is like saying that since the thalidomide birth defects were not intentional, they did not exist. Even the Supreme Court is not immune from the hysteria.

In decades past, the violation of civil rights of certain groups of people was widespread, most famously being with African Americans, Native Americans, Asian immigrants, and Mexican Americans. The same is occurring now. An objection will be raised that there is no comparison between those ethnic groups and “sex offenders” since the former had not engaged in illegal activities, whereas the latter, ipso facto, most certainly have. This is most certainly true, although all members of those ethnic groups were once wrongly considered to be probably engaging in illegal, if not immoral, activities. However, since that time it has been widely recognized that Constitutional rights must be applied to everyone.

Consequently, I believe that the sex offender registries can be attacked in the courts through a different angle, or I should say angles. The first, and most obvious, is that anyone who is accused of a violation of the registries and takes it to trial can argue very convincingly that it is impossible for a person to have due process and get a fair trial and, therefore, violates the 5th, 6th and 14th amendments to the United States Constitution guaranteeing a fair trial for all citizens. After all, is there anyone so obtuse as to believe that a person can get a fair trial when the first words that fall out of a prosecutor’s mouth are, “The defendant is a convicted sex offender”? As such, the sex offender registry law is clearly unconstitutional. Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002).

The second, and somewhat more obscure, angle is that the law is, for all intents and purposes, a bill of attainder. True, it does not zero in on one particular individual, but rather a group of individuals, but the number is irrelevant. That the law has had detrimental effects on “sex offenders” is undeniable and well documented. See Levenson, Jill, & Cotter, Leo, “The Impact of Sex Offender Residence Restrictions: 1,000 Feet from Danger or One Step from Absurd?” International Journal of Offender Therapy and Comparative Criminology, 49, 168–178 (2005); Levenson, Jill, & Hern, Andrea, “Sex Offender Residence Restrictions: Unintended Consequences and Community Reentry.” Justice Research and Policy, 9, 59–73 (2007); Levenson, Jill, & Tewksbury, Richard, “Collateral Damage: Family Members of Registered Sex Offenders.” American Journal of Criminal Justice, 34, 54–68 (2009). Local municipalities have, furthermore, used the registries as a peg on which to hang additional punitive laws prohibiting “sex offenders” from entering public libraries, swimming pools, and parks and have additionally restricted where they can live, all of which rely on identification through the registries. The words of Justice Douglas (dissenting) in Fleming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), are apt:

By smiting a man day after day with slanderous words, by taking away his opportunity to earn a living, you can drain the blood from his veins without even scratching his skin. Today’s bill of attainder is broader than the classic form, and not so tall and sharp. There is mental in place of physical torture and confiscation of tomorrow’s bread and butter instead of yesterday’s land and gold. What is perfectly clear is that hate, fear and prejudice play the same role today, in the destruction of human rights in America that they did in England when a frenzied mob of lords, judges, bishops and shoemakers turned the Titus Oates blacklist into a hangman’s record.

Something else that should be considered is that if the law is not harmful, then why is it that a Texas statute (103.001) that was passed offering compensation to persons wrongfully convicted of any offense has a special clause allowing additional compensation for those who had to be listed in the sex offender registries?

Perhaps I am being optimistic, but I believe that the time is coming when we can look at the various “sex offender” laws and restrictions in a rational manner and can go back to applying the constitutional freedoms again—to all individuals. The hysterics in the media will resist this, of course, but the courts will decide in the end.

* Admittedly, this may not be an instance of hysteria but of a different type of mindset. Something similar happened with the recent massacre in Paris of the staff of a satirical paper by Muslim fanatics. Some in the media (e.g., The New York Times), instead of insisting that immigration from Muslim countries be curtailed, thus preventing the influx of fanatics and thereby averting future massacres, bemoaned the fact that the reaction to the mass murder could lead to restriction of further immigration. Similarly, when Muslim illegal immigrants in the Mediterranean threw overboard other immigrants who were Christians, the media glossed over the incident and increased the number of stories on “the plight of the immigrants.” Perhaps fanaticism and hysteria are linked.

Who, in defending a case involving DNA evidence, has not heard testimony from the State’s expert to the effect that there is a one-in-3 billion chance of a match to someone other than the defendant? It does not matter that all 13 alleles do not match; the testimony is essentially the same. Invariably.

Powerful evidence. It instantly creates the impression in the mind of the jury that it would take over 3 billion people being tested before a match occurred. But, as you will see, it can be a false impression. A very false impression.

Or worse, the State’s expert offers testimony to the effect that: “The frequency of an unrelated African American (both appellant and Franklin are African American) having the same DNA pattern as that found on the cigarette butt consistent with the major contributor’s DNA was approximately one in 118 billion.”¹

Worse yet, the State’s expert offers testimony to the effect that: “The complainant could not be excluded as a contributor to the bloodstain on the bill. The chances of another contributor are 1 in 30 quintillion Caucasians, 1 in 56 quintillion African-Americans, and 1 in 343 quadrillion Hispanics.” And, “The chances of another contributor are 1 in 191 quintillion Caucasians, 242 quintillion African-Americans, and 1 in 273 quintillion Hispanics.”²

Never mind that some of these chances are “derived” after testing alleles at only 6 of the 13 loci that are normally tested!^3,4 Or that European agencies usually use two extra markers, D2 and D19, to make 15 loci (16 if you include AMEL) that are tested.⁵ Or that Taiwan now tests allelles at 23 markers because of matches at 13 alleles that turned out to be exclusions when 23 markers were tested.⁶ Or that there is no uniform methodology for determining those chances within the field—not even within the same lab!⁷ Or that the policies of some agencies requires their employees to testify—when only two alleles match—that the person cannot be excluded.₈

So, how do you challenge this testimony?

Before listening to the presentation of Greg Hampikian, PhD, at the National Child Abuse Defense and Resource Center’s seminar last October, we were relegated to using the tried (tired?) tactics to challenge this one-in-however-many billion, trillion, quadrillion, or quintillion chance testimony. These tactics include: (1) challenging the methodology used in testing the sample(s), especially when a mixture of DNA was tested; (2) challenging chain of custody or errors in sampling; (3) challenging the technician on his or her methodology in light of known errors; (4) challenging the degradation of the DNA specimen; (5) challenging the methodology of calculating the chances; (6) challenging the underlying study that is used to calculate these chances; (7) challenging the possibility of contamination of the sample; (8) challenging the lab based on its history of past errors, etc.⁹ This is not an exhaustive list, but those of us who have challenged DNA know them all.

Wouldn’t it be nice to have some new “bullets” to put into your cross-examination “gun”?¹⁰ Or to have some additional aces (bullets) to lay down when playing poker with the State’s experts on DNA?¹¹ Or to be able to force the State’s expert to have to bite the bullet and concede that their opinions are flawed, if not outright wrong?¹²

Dr. Hampikian gave everyone who attended the NCADRC seminar several new aces (bullets) to use when playing poker with the State’s expert and trying to trump the State’s expert’s testimony on DNA evidence.¹³

Dr. Hampikian’s First Bullet

The first bullet was to get us lawyers to understand the difference between chance and probabilities (statistics).¹⁴

For instance, take the question of what is the number of people you have to have in a room to have a better than 50% probability of two of them sharing the same birthday? Call this the birthday problem. People will guess at anywhere from 366 to 183 and they will be wrong. This is a simple example of how people (jurors) confuse chance with probabilities (statistics).

The birthday problem asks how many people you need to have at a party so that there is a better-than-even chance that two of them will share the same birthday. Most people think the answer is 183, the smallest whole number larger than 365/2. In fact, you need just 23. That’s right, 23.

The answer 183 is the correct answer to a very different question: How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?

If there is no restriction on which two people will share a birthday, it makes an enormous difference. With 23 people in a room, there are 253 different ways of pairing two people together, and that gives a lot of possibilities of finding a pair with the same birthday.

Here is the precise calculation. To figure out the exact probability of finding two people with the same birthday in a given group, it turns out to be easier to ask the opposite question: what is the probability that no two will share a birthday—i.e., that they will all have different birthdays? With just two people, the probability that they have different birthdays is 364/365, or about .997. If a third person joins them, the probability that this new person has a different birthday from those two (i.e., the probability that all three will have different birthdays) is (364/365) x (363/365), about .992. With a fourth person, the probability that all four have different birthdays is (364/365) x (363/365) x (362/365), which comes out at around .983. And so on. The answers to these multiplications get steadily smaller. When a twenty-third person enters the room, the final fraction that you multiply by is 343/365, and the answer you get drops below .5 for the first time, being approximately .493. This is the probability that all 23 people have a different birthday. So, the probability that at least two people share a birthday is 1 – .493 = .507, just greater than ½.¹⁵

Carrying this out to 30 people and the answer you get drops to approximately .293. So the probability that at least two people share a birthday with 30 people in the room is 1 – .293 = .707, or greater than 70%. Carrying this out to 35 people and the answer you get drops to approximately 0.185. So the probability that at least two people share a birthday with 35 people in the room is 1 – .185 = .815, or greater than 80%. Carrying this out to 40 people and the answer you get drops to approximately 0.108. So the probability that at least two people share a birthday with 40 people in the room is 1 – .108 = .892, or almost 90%. Carrying this out to 44 people and the answer you get drops to approximately .007. So the probability that at least two people share a birthday with 44 people in the room is 1 – .007 = .993, or greater than 99%.

Changing the birthday problem slightly, ask how many people you need to have at a party so that there is a virtual certainty that two of them will share the same birthday. The answer to this question is 45, because with 45 people in the room, the probability that at least two people share a birthday is greater than 100%!¹⁶

A similar problem is presented by the “Children Puzzle.” I tell you that a couple has two children and that (at least) one of them is a boy. I ask you what is the probability that their other child is a boy. Most people think the answer is 1/2, arguing that it is equally likely that the other child is a boy or a girl.¹⁷ But that’s not the right answer for the question I have asked you. Here’s why. In terms of order of birth, there are four possibilities for the couple’s children: BB, BG, GB, GG. When I tell you that at least one child is a boy, I rule out the possibility GG. That leaves three possibilities: BB, BG, GB. With two of these, the other child is a girl; so the probability of the other child being a girl is 2/3. Leaving the probability of the other child being a boy at 1/3.¹⁸

A similar problem is presented by these questions: What is the probability of tossing a coin and having it come up heads 10 times in a row versus what is the chance (probability) that on the tenth flip of the coin, it will come up heads? The first probability is (½)10—one-half to the tenth power. The second probability is ½. But most people will answer both questions as ½.

These are just three examples of how people (jurors) confuse chance with probabilities. Getting jurors to understand the difference between chance and probabilities (statistics) is very important. Getting the State’s expert to talk in terms of probabilities (statistics) instead of chances is even more important.

Dr. Hampikian’s Second Bullet

Which brings us back to DNA in the courtroom and the second bullet that Dr. Hampikian gave us. The State’s DNA expert is going to testify that there is a one-in-3 billion chance that there would be a match on the alleles that were tested and which matched.¹⁹ Or, as there are fewer than 13 alleles that match, that your client cannot be ruled out.²⁰

What do you do?

First, if it’s a one-in-3 billion chance testimony, we would recommend that you file a Rule 702 challenge to any such testimony. Why? Because chance is not probability.

You need to reframe the question or the expert’s statement. The question or statement is, more properly, Is a coincidental match to the DNA database possible? And if so, what is the probability of that coincidental match?

If a profile has a random match probability of one-in-3 billion, how big does the database have to be before a “random match” is expected (over 50% chance)? The answer is about one and one-half billion. Using the “birthday problem” above, you see that this is the “How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?” answer.

Second, you need to ask the State’s expert whether he has ever examined the FBI’s DNA database or even the Texas DNA database to see if there were any random matches and, if so, on how many alleles the profiles matched. Being the cynics that we are, we would expect the expert to announce that, in fact, he had done so. Which then leads to how did he get access to the database when no one else has been able to do so, were those results were published in a peer-reviewed scientific article, etc.

Of course, this leads to the fertile ground of cross-examination: How many DNA profiles are in the FBI database? Or the Texas database?

Which brings us back to, what is the chance (probability) that there is a random match somewhere in the DNA database?

If a DNA database has a number of profiles that each has about a one-in-3 billion random match probability, the question becomes: How big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

Remember, the FBI has the world’s largest DNA database, but it has never made its database available to independent scientists to examine. The authors have searched online and have been unable to find any definitive answer to even the question of how many DNA profiles it has in its database.²¹

So, how big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

According to Dr. Hampikian, the answer is 65,493. That’s right—65,493. Not one and one-half billion people. Not a billion people. Not five hundred million people. Not a million people. Slightly more that 65,000 people!

So, where did Dr. Hampikian come up with that number? Arizona. That’s right—Arizona.

Well, actually, it was the examination of the Arizona DNA database that was performed by Steven P. Meyers, MS, with the California DOJ Jan Bashinski DNA Lab. Dr. Hampikian showed those slides to the audience at the NCADRC Seminar in October 2014.²²

You see, among all of the states that have DNA databases, only Arizona has made its DNA database available to scientists to examine. In that examination, the scientists were able to find the following matches:

• 122 pairs match at 9 of 13 loci
• 20 pairs match at 10 of 13 loci
• 1 pair matches at 11 of 13 loci (full siblings)
• 1 pair matches at 12 of 13 loci (full siblings)

And that’s in a database of only 65,493 profiles!

Which suggests to the authors that if you are defending someone on a crime where DNA is being used to “finger” your client, it might be time to ask for discovery of the State of Texas’ DNA database, so that your expert can examine it to determine whether Texas has similar matches that have not been disclosed.²³ This alone could be critical in showing that the State’s expert’s pontifications as to chances of a match are nothing other than something that the expert has pulled out of an orifice somewhere.

And, in light of what was uncovered in the Arizona database, it could be argued that the prosecutors are withholding Brady material for at least two separate reasons. First, the Texas DNA database is supposedly larger than the Arizona database, so one could presume that there are matches in the database that are similar to those found in Arizona. Second, the Arizona matches will have been submitted to CODIS, which means that those matches are in CODIS. This is impeachment evidence that the prosecutor has access to and it should be turned over under Brady.

Dr. Hampikian’s Third Bullet

Which brings us to the third bullet that Dr. Hampikian gave those in attendance at the NCADRC Seminar last October. It is the case of Chen Long-Qi out of Taiwan.²⁴

The facts of that case are as follows: On March 24, 2009, two escorts were raped between 4 to 6 a.m. in a warehouse that Chen and his friend rented for agricultural products distribution. The victims failed to identify the assailants due to alcohol intoxication.²⁵

Chen always maintained his innocence during the investigation and trial. He claimed that he left before the crime to pick up his wife, Ko, at her workplace. Ko’s timesheet corroborated Chen’s words. An eyewitness also testified that Chen was not at the scene. Despite no testimony linking Chen to the crime, the district court and high court found him guilty of gang rape with the other two co-defendants. The decision was solely based on a DNA test concluding that Chen “cannot be excluded” from the semen stain found on one of the victims’ underwear. Chen was convicted of gang sexual assault and was sentenced to 4 years in March 2013.²⁶

With help from the Taiwan Association for Innocence, Chen filed a motion for retrial in June 2013 seeking to retest the DNA evidence. The court authorized a 23 loci STR test on the original mixture DNA sample. The new test result showed that Chen “can be excluded” from the DNA sample. Based on this new piece of evidence, the court granted his motion in December 2013.²⁷

According to Dr. Hampikian in his presentation at the NCADRC Seminar, Chen was acquitted on April 15, 2014. As Dr. Hampikian explained: “Last year the Taiwan Association for Innocence director showed me the case of a man convicted of gang rape through DNA evidence. While that first DNA test was accurate, it was a complex mixture, and newer testing is more discriminating. Through a court hearing the National Crime Lab agreed to do further testing with newer kits, and they were able to exclude Chen Long-Qi.²⁸

Dr. Hampikian’s Fourth Bullet

Dr. Hampikian’s fourth bullet dealt with the problem with statistics. He used the case of Donny Denman to illustrate.

Who is Donny Denman? Donny Denman is the man who the FBI pronounced dead after they examined the DNA in some bones found in New Mexico. Since Donny Denman had been missing for years and since they did not have Donny’s DNA, they used Donny’s siblings to test the mitochondrial DNA. And the FBI concluded that the DNA matched and the bones were Donny’s.

Donny had a funeral. The Pastor gave the eulogy. A death certificate was issued in Donny’s name. There was only one problem: Donny was still alive.²⁹

Granted that using mitochondrial DNA is not as effective in distinguishing individuals as the more common nuclear DNA process, there was a coincidental match, nonetheless. What’s really interesting to the authors is that the FBI said that Denman’s case was the first time the FBI lab has had a “coincidental match.”

The reason that statement is so interesting is that the Arizona DNA database, supra, would have been submitted to CODIS. Are we to believe that the DNA samples that led to the matches that Steven P. Meyers, MS, found in the Arizona database, supra, somehow did not make it into CODIS?

Or are we to believe that FBI is telling the truth when they state that they have never had a “coincidental match.” Remember, these are the same people who tell us that fingerprints are unique and who incorrectly identified Brandon Mayfield, a lawyer from Portland, Oregon, as the Madrid train station bomber.³⁰

Related to this is that experts say there is no way to tell what the odds are for a coincidental match. But courtesy of the coincidental matches that Steven P. Meyers found in the Arizona DNA database, we know that the odds of a coincidental match at 9 of 13 alleles is 122/65,493. We also know that the odds of a coincidental match at 10 of 13 alleles is 20/65,493. We also know that the odds of a coincidental match at 11 of 13 alleles is 1/65,493. And we know that the odds of a coincidental match at 12 of 13 alleles is 1/65,493.³¹

That’s nowhere near a one-in-3 billion chance! Not even in the same ballpark. Not even on the same planet.

Dr. Hampikian’s Fifth Bullet

Dr. Hampikian’s fifth bullet dealt with the problem of contamination of the samples in the laboratory.

Dr. Hampikian gave several examples of cases where people were identified as the perpetrator but the identification was flawed by contamination occurring in the laboratory.

One such case was the case of Carlton Gary, the so-called Columbus Stocking Strangler. He spent almost 30 years on death row in Georgia, and in 2009, hours before he was to be executed, the Georgia Supreme Court ordered DNA testing. Ultimately, the Georgia Bureau of Investigation laboratory conducting the tests reported it had tainted the DNA evidence.³²

The interesting corollary is that when the DNA was re-tested, it did not match anyone in the CODIS database. Two years later, a gun crime was committed in Georgia and the DNA from the suspect in that gun crime was submitted to CODIS. A match was found, so that suspect was interviewed and he was excluded from the Columbus stocking murder cases due to his age—he couldn’t have committed those crimes back in the ’70s. It turns out that the samples in both cases were contaminated at the Georgia Bureau of Investigation Crime Lab with the same DNA evidence. And it turns out that the DNA that contaminated both samples was from a semen sample produced by someone who works in that lab—a sample produced as a quality control!³³

Dr. Hampikian’s Sixth Bullet

Dr. Hampikian’s sixth bullet dealt with the problem of contamination of the samples that occurs outside the laboratory.

In his presentation at the NCADRC Seminar in October 2014, Dr. Hampikian talked about the need for crime scene technicians to change their gloves between each piece of evidence they handle so as to avoid transferring DNA from one piece of evidence to another. This, alone, presents a fertile ground for cross-examination.

Dr. Hampikian also talked about the “phantom of Heilbronn.”³⁴ This is the debacle suffered by the German police when they spent 16 years chasing a woman who never existed. The unnamed woman was suspected of being a serial killer who over 16 years carried out a string of six murders, including strangling a pensioner. It turns out the misidentification was caused by swabs used to collect DNA samples having been contaminated by an innocent woman working in a factory in Bavaria.

Conclusion

The take-away from Dr. Hampikian’s two presentations is this: There are forensic DNA errors; there are statistical and interpretative errors; and there are contamination errors. Now you have six new aces to lay down on the table when you want to trump the State’s expert in your quest for justice for your clients who are being “fingered” by DNA.

Endnotes

1. Brown v. State, 163 S.W.3d 818 (Tex. App.—Dallas 2005, pet. ref’d).

2. Owolabi v. State, 448 S.W.3d 148 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

3. Brown v. State, 163 S.W.3d at 825—826.

4. CODIS identifies genetic markers at 13 STR loci, plus Amelogenin (AMEL) to determine sex. See http://www.dnaconsultants.com/Default.aspx?PageID=5813864&A=SearchResult&SearchID=8611581&ObjectID=5813864&ObjectType=1 (last accessed January 22, 2015).

5. Id.

6. http://wrongfulconvictionsblog.org/2014/02/07/taiwan-association-for-innocence-wins-first-case/ (last accessed January 22, 2015).

7. Presentation by Greg Hampikian, PhD, at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at: http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

8. Dr. Hampikian notes that the experts from the Georgia Bureau of Investigation will testify, when only two alleles match, that the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See https://www.voiceforthedefenseonline.com/taint-question-reliability-not-credibility-or-competence/.

9. In his presentation at TEDx Boise 2015, Dr. Hampikian discusses the problems associated with contamination of the samples, including the possible sources of contamination.

10. Two the authors are attorneys, licensed in Texas, proud possessors of a CHL, who can often be found exercising the privileges that come with a CHL. It seemed appropriate to them to use the term “bullet,” in the sense of the metal cartridge that one inserts into a pistol. This term was not suggested by Dr. Hampikian, and to the authors’ knowledge, he has never referred to his points as bullets—not even when he was using a PowerPoint presentation containing what would otherwise be called bullet points.

11. In cards, an ace is referred to as a bullet. Random House Dictionary, Random House Inc., 2015. The NCADRC seminar is usually held in Las Vegas, and the authors have been known to participate in the games of chance offered in the casinos. There has been more than one occasion when they each would have been more than happy to have had one more of these bullets to play.

12. “Bite the bullet”: to force oneself to perform a painful, difficult task or to endure an unpleasant situation. Random House Dictionary, Random House Inc., 2015.

13. The authors are grateful to Dr. Hampikian for his assistance in the prep­a­ra­tion of this paper and his providing the slides referred to in this paper together with the link to his TEDx 2015 presentation. His assistance was limited to check­ing the paper for errors, and he did not have any input into the final draft or its terminology or the words used.

14. Again, the term “bullet” is used in the sense defined in note 11—an ace.

15. http://www.npr.org/templates/story/story.php?storyId=4542341 (last accessed January 3, 2015).

16. As you will see in this paper, this question can be rephrased: How many people’s DNA profiles do you have to have before you are virtually certain to have two people who match at 9, 10, 11, or even 12 loci.

17. That answer is the answer to the question of what is the chance that the other child is a boy.

18. Id.

19. Or in a trillion, a quadrillion, a quintillion, or in a whatever chance. For simplicity, the authors will keep it to a one-in-3 billion chance.

20. As noted by Dr. Hampikian, the experts from the Georgia Bureau of Investigation will testify that when only two alleles match, the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See https://www.voiceforthedefenseonline.com/taint-question-reliability-not-credibility-or-competence/.

21. The authors are not, by this statement, claiming to be the absolute best online researchers.

22. The authors have tried to attach Dr. Hampikian’s PowerPoint presentation on this study but have been unable to do so. If you will email L. T. Bradt at , he will be happy to share the PowerPoint presentation that Dr. Hampikian shared with him.

23. This raises an interesting Brady issue. But that is for another time and another article.

24. http://wrongfulconvictionsblog.org/2014/02/07/taiwan-association-for-innocence-wins-first-case/ (last accessed January 22, 2015).

25. Id.

26. Id.

27. Id.

28. See also http://news.boisestate.edu/update/2014/04/21/greg-hampikian-58/ (last accessed January 27, 2015).

29. http://www.abqjournal.com/news/metro/302718metro04-25-08.htm (last accessed January 24, 2015).

30. http://seattletimes.com/html/localnews/2001937794_mayfield25m.html (last accessed January 24, 2015).

31. As to both the 11 of 13 alleles matching and the 12 of 13 alleles matching in the Arizona database, these profiles involved full siblings. Remember, the RMP assumes that people are unrelated, so if you use these examples, the State’s expert may throw it back in your face.

32. http://www.ledger-enquirer.com/2014/02/23/2970172/stocking-strangler-comes-back.html (last accessed January 24, 2015).

33. Greg Hampikian’s presentation at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

34. See Dr. Hampikian’s presentation at TEDx Boise 2015, found at http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . See also http://news.bbc.co.uk/2/hi/europe/7966641.stm (last accessed January 25, 2015).

The carrying of long guns and handguns in and through an airport, and on an airplane, is regulated by both Texas and federal law. Although the list of prohibited items is exhaustive, TSA rarely sanctions violators unless the item is specifically a weapon.

Texas Law

Under Texas law, a person cannot intentionally, knowingly, or recklessly carry a handgun on or about his or her person, unless: 1) he is on his own premises or premises under such person’s control; or 2) inside of or directly en route to his motor vehicle or watercraft—which is owned by such person or under such person’s control. Tex. Penal Code § 46.02(a)(1)–(2). Still, any handgun that may be carried in a vehicle or watercraft cannot be in plain view. Tex. Penal Code § 46.02(a-1)(1).

Additionally, a person commits an offense if the person intentionally, knowingly, or recklessly possesses or “goes with a firearm,” among other places, “in or into the secured area of an airport.” §46.03(a)(5). Secured area under Texas law “means an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law.” § 46.03(c)(2). [Federal definition of ‘Secured Area,’ infra].

Federal Law

Under federal law, “an individual may not have a weapon . . . on or about the individual’s person or accessible property—(1) When performance has begun of the inspection of the in­di­vidual’s person or accessible property before entering a sterile area, or before boarding an aircraft for which screening is con­ducted under this subchapter; (2) When the individual is entering or in a sterile area; or 3) When the individual is attempting to board or onboard an aircraft for which screening is conducted under §§ 1544.201, 1546.201, or 1562.23 of this chapter.” 49 CFR § 1540.111. NOTE: Unloaded firearms (both long guns and pistols) may be checked at the ticket counter if: 1) declared orally or in writing to the aircraft operator; and 2) stored in a hard case which is locked and to which only the ticket holder has the key. 49 CFR § 1540.111(c). NOTE: Ammunition may be carried either in checked baggage or in the same hard container as the gun. Also, full-time law enforcement officers who are commissioned to enforce criminal or immigration statutes are exempt if they have completed the training program “Law Enforcement Officers Flying Armed.” 49 CFR §§ 1540.111(b) & 1544.219

Federal law defines “sterile area” as that “portion of an air­port defined in the airport security program that provides pas­sen­gers access to boarding aircraft and to which the access generally is controlled by TSA, or by an aircraft operator . . . or a foreign air carrier . . . through the screening of persons and property.” 49 CFR § 1540.5 The term “secured area” means “a portion of an airport, specified in the airport security program, in which certain security measures specified in . . . this chapter are carried out. This area is where aircraft operators and foreign air carriers that have a security program under . . . this chapter en­plane and deplane passengers and sort and load baggage and any adjacent areas that are not separated by adequate security measures.” 49 CFR § 1540.5.

NOTE: Always check with the air carrier for specific policies and procedures before arriving at the terminal.

Defenses

In the vast majority of cases where someone brings a gun into either a secure or sterile area, the individual “forgot” that the gun was in his or her luggage. This lack of culpability is a defense to prosecution—which at a minimum, requires reckless mens rea. Tex. Penal Code § 6.02(a)–(c). Texas law also requires that an act be voluntary and states, “Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” Tex. Penal Code § 6.01(a), (b). NOTE: After this article was submitted for publication, the Texas Legislature voted to reduce the penalty for licensed gun owners who accidentally bring a firearm into the secure area of an airport. This bill has not yet been reviewed by the author.

In cases where an individual “forgot” a handgun in luggage, some judges have granted and issued personal recognizance bonds by faxing such bond to the airport police (see form following). This is critical where someone is in danger of missing a scheduled flight. NOTE: At Dallas/Ft. Worth International Airport, the case is likely to be filed in Tarrant County, and therefore, any PR bond would be returnable to the Criminal District Court of Tarrant County. This is the case even where the bond is granted by a district court judge for Dallas County. Oftentimes, a grand jury presentation will be sufficient to resolve a case without further prosecution. Of course, the criminal law practitioner must educate the grand jury about both the facts and the law. While federal authorities usually defer prosecution of any criminal case to the states, this does not mean that the case goes away.

Civil Penalties

Often, if not always, the client receives a letter from TSA proposing to assess a civil penalty. The proposed civil penalty is usually recommended in a particular amount (for example, $3,000). The TSA will usually offer to accept half of the penalty if paid within 30 days from the receipt of such letter.

Alternately, a party may submit evidence for consideration demonstrating either: 1) that a violation did not occur; or 2) that the proposed penalty amount is not warranted by the circumstances (including the inability of the client to pay). An individual may also request an informal conference with a TSA representative (oftentimes an attorney). This is usually the best option to negotiate down a proposed civil penalty. Finally, an in­di­vidual may request a formal hearing with an administrative law judge (which would cause the TSA to file a criminal com­plaint to proceed). The aggravating and mitigating factors TSA considers are as follows:

1) Significance or degree of the security risk created by the violation;
2) nature of the violation (whether the violation was inadvertent, deliberate, or the result of gross negligence);
3) past violation history;
4) violator’s level of experience;
5) attitude of violator, including the nature of any corrective action taken by the alleged violator;
6) economic impact of the civil penalty on the violator;
7) criminal sanctions already paid for the same incident;
8) disciplinary action by the violator’s employer for the same incident;
9) artful concealment; and
10) fraud and intentional falsification.

Obviously, TSA differentiates between the soccer mom, who has a concealed handgun permit and just forgot that her handgun was in her carry-on bag, and the international terrorist suspect who is found to be in possession of a handgun disassembled for concealment. The sooner an individual retains a lawyer, the more likely he or she is to have a positive outcome. It is imperative to be proactive in the representation of persons charged with offenses involving the possession of a firearm within the restricted area of an airport.

I was at the post office late this afternoon when the phone rang. Tied up, I could not answer. A few minutes later, I retrieved the message.

“Hello, my name is Joe Smith and I am calling about a wallet. There was a note in the wallet signed by you, with your number. I would like to get the wallet back to its owner. Please return my call.”

I was intrigued. I knew of no one who would carry a note from me in their wallet. I knew of no one who was missing their wallet. So I dialed the number.

Mr. Smith’s voice was deep, filled with gravel, dust, and smoke. He might have been 40. He might have been 70.

“I was at Wal-Mart this morning and found a wallet on the floor in the back of the store. There was a driver’s license, a credit card, and some other I.D. There was a $20 bill. There was a note in the wallet from you to the boy who owns the wallet. It was handwritten. Your business card was also in the wallet.”

The boy’s name rang a bell. A young kid I represent in a far-off county. I had no clue as to how his wallet became lost and found in a Walmart in Smith County, a hundred and twenty miles away. The kid has serious problems. He is in jail because he would not or could not follow simple bond conditions. Keeping him out of prison is going to be tough.

“I called information,” said Mr. 40/70. “Tracked down his address on his license. Called his credit card company to report the card. But I cannot find him.”

I remembered. The young client was out on bond but got picked up on another charge. In the jail he went. I have left him there on purpose to dry out, to shake him up, and indoctrinate him in the bitter realities of making these types of mistakes. He has a court date next month in which I expect to take care of his four misdemeanor cases. Resolving his four or five felony cases, however, will be more difficult, starting with a hearing next week. I had a vague memory of writing the kid a note months earlier when a family member of his and I were with him in far-off county.

“What does the note say?” I asked. I have been bogged down in trial cases and appeals in the day, composing a major orchestral-choral work at night. The first thing that goes when I am sleep deprived is my memory. I had no idea what I wrote.

“The note is basically six bullet points,” said Mr. 40/70. He recited:

“Never talk to the police.”

“Always demand a lawyer if the police want to talk to you.”

“Never fight the police, but never give them permission to search you or your car or your house or any other thing.”

“Remember the above rules as if your life depends on it, because it does.”

“Call me. I will come rescue you as long as you do not lie to me. Read the previous sentence again.”

“Do not lose this note.”

I felt Mr. Smith smile over the phone. “I like that last point,” he said. “Sounds like the kid does not follow rules too well.” He paused. “That was me once upon a time.”

Memory came back. I remembered scribbling on scrap paper during a crisis the boy was going through months ago. I remembered stressed-out people. I remembered a brutal day.

The boy’s family cast him out. He is on his own, except for me. It is my job to save him if I can.

Mr. 40/70 said he would mail everything to me. I thanked him for being a good Samaritan, for trying to find the boy, and for contacting me.

I will return the wallet to the boy when I see him next week.

And the lost note.