Reportage

DNA and the justice game

I HAD JUST received double digits for the Brisbane National Australia Bank robbery when they transferred me into B Block at the Sir David Longland Correctional Centre (SDLCC) – a jail with the fearsome reputation as the killing fields of the Sunshine State. This New-Age gladiator school of Queensland's prison system had spawned a breed of violent younger prisoners, the like of which I had never encountered during my years in southern prisons. They were fuelled by a mixture of heroin and an insane desire to reach the top of the prison pecking order by killing each other. Their ascendancy was symbolised by the tattooed abbreviation NBK (natural born killer), which reinforced the reality of jail time becoming a terminal sentence inside SDLCC. In that feeding frenzy of reputation-building I met Marc Renton.

Marc Andre Renton is no choir boy. A man in his late 20s, who had already achieved a career criminal tag for armed robbery, Renton walked the hard yards after he led the 1992 Townsville prison riot in a quest for humane treatment and better conditions for prisoners. It cost him a few busted bones and more years on top of his sentence but it also earned him respect in the yard. It was not a respect fuelled by heroin, jail murders or NBK tattoos, but a healthy respect for a stand-up bloke who would not take shit from the screws or the wannabes.

Older crims took the young Queenslander under their wing. He was a reincarnation of their heydays. A man with principles who cannot be bought or sold with a $50 shot of heroin is rare in today's maximum-security prisons. They showed their respect. Renton returned that respect by listening to the elder statesmen. He learned from their mistakes and benefited from their wisdom. Now it was his turn to ask for their help and advice.

I was one of those privileged to hear the story of a young man sent to prison for a crime he said he had not committed. A young man unskilled in the intricacies of a legal system that relied upon forensic scientists and their interpretation of DNA evidence to convict him, Renton simply said he had not committed the bank robbery he was in jail for. And I believe him.

 

DNA, OR DEOXYRIBONUCLEIC acid, is the most effective weapon in the arsenal of Australian law-enforcement agencies. It is the human blueprint that determines eye colour, height, blood type and inherited disorders found in the genetic structure of human cells. It is an individual genetic code and, like fingerprints, cannot be duplicated. That unique genetic code is helping law enforcement agencies solve previously unsolvable crimes.

The structure of the DNA molecule was identified by J. D. Watson and F. H. Crick in 1953. Thirty-two years later, Professor Alec Jeffreys of Leicester University, England, developed a DNA profiling technique known as multilocus probing. When Jeffreys's DNA technique was first used in 1987 it resulted in the freeing of an innocent man and the conviction of another for murder.

The rape and murder of two 15-year-old girls within a three-year period near Narborough, England, during the 1980s resulted in the arrest of Richard Buckland, 17, after he was spotted near the crime scene. Jeffreys was asked to assist in building a case against Buckland, but when he used a radioactivity-based DNA profiling technique it proved the murders had been committed by the same person. That person was not Buckland. The murder investigation recommenced with the mass testing of all men aged 18 to 35 in the Narborough area, but after nearly 5000 voluntary samples no match was found.

The breakthrough came when a local man boasted he had been paid cash to give a DNA sample in place of Colin Pitchfork, 27, who worked in the local bakery. Police arrested Pitchfork and he was tested. The DNA profile matched. Pitchfork was convicted of both murders and is serving a double life sentence.

 

DNA PROFILING AND the introduction of DNA-based evidence into Australian courts first occurred in 1989 with the convictions of Desmond Applebee for sexual assault in the ACT and Gerald Kaufman for 16 counts of rape in Victoria. The Queensland criminal justice system embraced DNA profiling after the 1998 conviction of Lloyd Clark Fletcher for the July 1987 rape and murder of 15-year-old Janet Phillips.

A vaginal swab taken from Phillips during the 1987 post-mortem examination contained sperm samples that were stored and finally matched Fletcher's DNA after he was arrested in 1997. Ken Cox, a forensic scientist from Queensland's John Tonge Centre, gave evidence that "the probability of finding someone in the community with the exact DNA would be about one in 6.4 billion". Fletcher was convicted and sentenced to life imprisonment.

Renton's introduction to the forensic interpretation of DNA evidence also came from Cox's evidence, which resulted in his being imprisoned for 14 years on April 25, 1997, after he was convicted of robbing the Biggera Waters and Paradise Point National Australia Bank branches in mid 1996. Brunetta Festa, 35, was also charged in relation to the hold-ups in what the Queensland media dubbed "The Bonnie and Clyde Robberies".

Renton had also been charged with a bank robbery at Morningside in Brisbane. Police said distinct similarities existed between the three robberies, consistent with a proposition that one offender had been involved in all three.

The establishment of similar-fact evidence linking the Biggera Waters and Paradise Point bank robberies was discredited by Renton's acquittal of the Morningside bank robbery. The case then relied on DNA evidence that allegedly linked Renton to the Biggera Waters bank robbery.

 

THE TRIAL OF Renton and Festa began on April 2, 1997, but was marred with controversy from the outset when Festa jumped bail and fled interstate. She was recaptured in Sydney the following year, but her absence from the dock did not compel Judge Hangar to abort the trial and it continued with Renton as the sole accused.

Renton's jury observed the most stringent security precautions ever showcased by the Queensland Police Department, despite the lack of evidence that Renton intended to abscond. The security overkill included permanent manacles and leg shackles on Renton and use of the elite Special Emergency Response Team to sweep courtrooms and visitors with metal detectors. Outside the Southport court complex, police snipers were on the roof for the remainder of the trial.

In that highly charged atmosphere Cox testified that he had completed a second examination of a blue balaclava found inside the stolen white Ford Laser allegedly used in the Biggera Waters robbery and isolated a stain that yielded a DNA sample. Cox had originally examined the balaclava in August 1996. During that examination he tested two areas of fabric in an attempt to isolate DNA that could originate from mouth cells via saliva. He found none.

Although Cox's second examination in April 1997, two weeks into Renton's trial, did not correspond with his examination of the balaclava eight months earlier, he swore that the newly found DNA samples belonged to Renton, Festa and a third unidentified person.

The Crown's case was bolstered by the interpretation of the DNA evidence delivered by Cox and the timing of its inclusion restricted Renton's defence counsel from conducting independent tests. The trial judge allowed the DNA evidence to go before the jury untested. As a result, Renton was convicted.

When Renton returned to prison with a 14-year sentence, the Queensland Department of Corrective Services was determined to make him serve every day in the most punitive sections of the state prisons. It was easy to see this as payback for his participation in the 1992 prison riot. Queensland prisoneaucrats take their revenge options seriously and, as Renton was not legally or politically connected, they acted with impunity. They showed no reluctance to make a man do hard time for a crime he said he didn't commit.

 

RENTON AND I walked the yard inside B block at SDLCC as I listened to his story. His sincerity had a ring of truth to it. DNA was the stumbling block I could not get my head around. Wasn't DNA set in concrete – irrefutable proof that tied an offender to a crime? So why would an obviously intelligent young prisoner persist in his claim of being innocent?

I vaguely remembered that an independent examination of forensic evidence cleared Lindy Chamberlain. I realised that that was what Renton needed: independent scientific examination of the DNA evidence. I discovered the identity of the scientist who conducted the independent tests in the Chamberlain case in a book in the prison library.

Barry Boettcher, professor emeritus of biological science at the University of Newcastle was the man – the foremost DNA expert in Australia. Boettcher practised and taught the principles of scientific method involving DNA structure and its use in forensic work. He also taught courses on forensic biology including the use of variable DNA sequences that resulted in collaboration with overseas scientists to publish studies of variable DNA sequences suitable for use in forensic work.

Renton wrote to Boettcher and asked for his help.

 

EIGHTEEN MONTHS AFTER Renton was convicted, Boettcher reviewed the evidence presented at Renton's trial: trial transcripts, DNA profile collation sheets, gene scan analysis print-outs and two statutory declarations from Cox. He concluded that the DNA evidence used to convict Renton was scientifically incorrect and that the methodology used by the Crown's DNA expert was wrong.

In a statutory declaration, Boettcher explained his conclusions: "The DNA in the sample came from more than one person since normal persons have only one or two FES alleles. The simplest explanation is that the DNA in the sample came from two people possessing the pairs of alleles: 10/11 and 12/13 or 10/12 and 11/13 or 10/13 and 11/12 (Renton possesses the FES type 12/12).

"Since the most appropriate conclusion to be derived from the results obtained by Mr Cox is that the donors of the DNA isolated from the balaclava had one of the FES system combinations of 10/11 and 12/13. or 10/12 and 11/13, or 10/13 and 11/12, it should be concluded that Mr Renton's DNA has not been identified as being present on the balaclava ...

"It is apparent that, at the trial of Mr Renton, the court was given wrong scientific opinion about the possible presence of DNA originating from Mr Renton being found on the balaclava."

Although Boettcher's interpretation of the DNA evidence appeared to clear Renton of bank robbery, the Queensland Government was not convinced it was sufficient to release him from prison or institute an inquiry into his conviction. The options for Renton were running out. He had already lost an appeal to the Supreme Court based on points of law, and Queensland law only allowed one appeal against conviction.

 

WHEN THE ABC'S Catalyst progam began to examine the interpretation of DNA evidence used in Australian criminal trials it also discovered further discrepancies in the DNA evidence used to convict Renton. Catalyst researcher Robyn Smith made a formal request to interview Renton in the maximum-security block of Townsville prison after he had been transferred there in 2000.

"Renton was convicted primarily on the DNA evidence," Smith recalled. "Renowned forensic scientist Professor Barry Boettcher later investigated that evidence and felt that the interpretation by the Queensland forensic scientist was flawed, and there was a good chance that Renton had been wrongfully convicted. We wanted to do an interview with him but we were denied access."

QDCS refused permission on the grounds that Renton was a dangerous prisoner – a convicted bank robber who had participated in a prison riot.

The Catalyst team was undeterred and went ahead with the investigation. When the program, "A Shadow of Doubt", was broadcast in June 2002, presenter Karina Kelly interviewed both Boettcher and Cox. It revealed a chilling insight into how the interpretation of scientific evidence can be tilted.

Boettcher explained that there were four peaks of DNA in the forensic analysis that was presented during the Renton trial. Those peaks were best interpreted as DNA coming from two people and excluded Renton because his DNA was not present. The evidence presented in court assumed the four peaks came from three people because that interpretation favoured the prosecution case against Renton.

Cox was asked why he had concluded that there were three people present in the DNA profile but he denied that he came to that conclusion. Kelly dropped a bombshell. She confronted him with the transcript of his evidence from the Renton trial.

But the Catalyst team uncovered another disturbing factor – the DNA evidence presented at Renton's trial could implicate 94 per cent of the white Australian population.

 

THE INTERPRETATION OF DNA evidence used in Queensland criminal trials became a matter of concern when Professor Michael Moore, the then director of Queensland Health and Scientific Services, revealed to the media in May 2002 that the John Tonge Centre (JTC) had not received accreditation by the National Association of Testing Authorities (NATA) until 1999, two years after the Renton trial. However, even with that accreditation, the JTC continued to bungle DNA evidence used in other serious cases.

Charges in the 1997 Arnott's biscuit extortion case were dropped as a result of flawed DNA-testing procedures at the JTC. Tweed Heads great-grandmother, Joy Ellen Thomas, 72, was accused of threatening to poison the company's biscuits unless four Sydney detectives took lie-detector tests concerning evidence they had given against her son, convicted murderer Ronald Henry Thomas. The prosecution against Thomas relied heavily on evidence from forensic biologist Barry Blair who conducted DNA testing for the Crown at JTC.

Blair testified that DNA extracted from a stamp on one of the extortion letters matched the DNA of Joy Thomas, but as the stamp had not been tested for saliva so it could not be determined if Thomas had licked it. Blair said that although such testing would have identified the source of the cells it would have ruined any chance of recovering the DNA profile.

During the pre-trial hearing in April 2002, Blair changed his opinion about the key DNA evidence after another forensic biologist hired by the defence, Lazlo Szabo from Tasmania's Forensic Science Laboratory Centre, revealed the existence of a second DNA profile from an unknown person also present on the stamp. Szabo's report, detailing the second DNA profile, was given to the Crown two months before the pre-trial hearing. Although the presence of the second person's DNA was indicated within a table in Blair's reports it was not mentioned in the text.

When questioned about the second DNA profile during the pre-trial hearing, Blair testified: "I'm not disputing the fact that there could be a weak profile present." He said the second profile was a "stutter" – an anomaly in the testing procedures.

The presence of a second DNA profile was evidence that could have freed Joy Thomas months earlier but the Crown opted to remain silent. Prosecutor Paul Rutledge said there was a difference of opinion between the two experts but District Court Judge Michael Shanahan warned him that he would be forced to tell the jury that "it would be dangerous to convict on this material" if he pursued the prosecution.

The five-year campaign to prosecute Joy Thomas collapsed when Rutledge, who had successfully prosecuted Ronald Henry Thomas at his 1994 murder trial, was forced to discontinue the Crown case and withdrew the charges in Brisbane Supreme Court in April 2002.

Another bungle at the JTC forced Frank Alan Button, 32, to serve 10 months of a seven-year sentence for the rape of a 13-year-old intellectually impaired girl before independent DNA testing also established his innocence.

The young girl said she had been assaulted during a party at her mother's home at Cherbourg, southern Queensland, on February 17, 1999. The girl was taken to the local hospital and subjected to a full examination during which internal swabs, nail clippings, pubic hair and blood samples were taken. The swabs and samples were sent to the JTC for analysis. Although the sheet and pillowcase from the crime scene were not tested for DNA, the vaginal swabs revealed semen that resulted in a DNA profile of the victim. The swabs were tested for male DNA but no male DNA was obtained.

Despite the lack of DNA evidence, Button was convicted. At the Arthur Gorrie Correctional Centre in Brisbane he became the target of violence by mainstream prisoners. Prison authorities placed him in protective custody but the abuse continued because he was classed as a "rock spider" – a prisoner convicted of sex crimes against children. When Button maintained his innocence and refused to do a sex offender's course the prison staff told him he lacked remorse and they would force him to serve the entire seven years without remission.

Button's legal team began preparing an appeal and requested further DNA testing of the vaginal swabs and the bed linen from the crime scene. When scientists at the JTC retested the semen taken from the young victim, a male DNA profile was finally discovered. That discovery resulted in the DNA testing of the bed linen, which revealed traces of semen matching the profile on the swab. The DNA profile from the swab and the sheet was then entered into a database of DNA samples taken from prisoners and a match was recorded.

The DNA profile on both the sheet and the swab from the victim was not Button's. It belonged to a prisoner doing time for another rape. He was a youth from the girl's community who had been convicted of a separate assault.

The biologist who did the DNA testing was cross-examined by Button's counsel and asked why he hadn't tested the bed linen prior to the trial. A forensic examination would have clearly established Button's innocence because the semen on the bed linen did not contain Button's DNA profile. The biologist answered: "The tests were directed to try to implicate your client."

On April 12, 2001, the Queensland Court of Appeal ordered Button's release from prison. The court's judgement contained a blistering criticism of the state's criminal justice system: "Today is a black day in the history of the administration of criminal justice. What is of major concern to this court is the fact that that evidence was not available at the trial. This court can do little so far as compensation to the appellant for the fact that he has had to suffer the ignominy of a conviction for rape which now proves to be entirely false."

 

A STRIKING SIMILARITY to the Button case occurred in New Zealand in October 1992 when David Dougherty was charged and convicted for the abduction and rape of an 11-year-old West Auckland girl.

Although Dougherty also maintained his innocence he served more than three years of a seven-year prison sentence in some of New Zealand's toughest jails before his conviction became the target of the Auckland Sunday Star-Times after NZ forensic scientist, Arie Geursen, raised concerns about the DNA evidence used to convict him.

The controversy surrounding Dougherty's conviction became a big story in Auckland's Sunday Star-Times. Journalist Donna Chisholm questioned the evidence of government forensic scientist, Dr Peta Stringer, who discovered DNA from semen in the rape victim's underwear did not match Dougherty but nevertheless testified that the evidence was not enough to exclude Dougherty even though the DNA did not belong to him or the complainant. Chisholm also questioned the DNA testing procedures at the Institute of Environmental Science and Research where Stringer worked.

Chisholm's investigations revealed a bias in Stringer's evidence after notes of a 1994 telephone conversation with the Crown Prosecutor indicated that Stringer had an interest in the outcome of the case after she asked "if it will all be enough to get him off?" referring to the unidentified DNA.

Together with Arie Geursen and New Zealand lawyer Murray Gibson, Chisholm began a relentless pursuit for the truth that resulted in a campaign by the Sunday Star-Times to free Dougherty.

Gibson successfully petitioned the New Zealand governor-general in June 1996 and Dougherty was granted an appeal against his conviction. Two months later the New Zealand Court of Criminal Appeal quashed Dougherty's conviction and ordered a retrial stating that the interpretation of the ESR results by three independent scientists was materially different from Stringer's interpretation. Dougherty was finally released from prison after three years and nine months pending retrial. In April 1997, a High Court jury acquitted Dougherty on all charges. He was later compensated by the government for wrongful imprisonment.

 

FORENSIC DNA TESTING has become a powerful tool for prosecutors and police, proving to be the most probative of identification measures. However, DNA testing has also become a key factor in exonerating the wrongfully convicted. Since the advent of forensic DNA testing in the late 1980s, a rising tally of United States prisoners have been exonerated through DNA testing and set free.

Jerry Frank Townsend, a mentally retarded man who spent 22 years in prison wrongly labelled as a serial killer, was exonerated by DNA testing of a string of rape-murders in Florida. Townsend's 1979 arrest was supposed to halt the killings that terrorised the community of northwest Fort Lauderdale but the murders did not stop with Townsend's arrest. DNA analysis in 2000 and 2001 finally cleared Townsend and pointed to Eddie Lee Mosley, who was linked by DNA to eight slayings across two decades. Following his exoneration Townsend was released from prison in 2001.

After the US reintroduced the death penalty in 1976 there have been more than 107 prisoners released from death row and exonerated after their innocence had been finally established. Twelve of those prisoners were exonerated because DNA was a significant factor in establishing innocence.

The ability of a criminal justice system to cage innocent people and, in some cases, incarcerate them on death row with the prospect of being executed for crimes they may not have committed became a concern of a professor and a lawyer.

In 1992, Professor Barry Scheck and Peter Neufeld, the lawyer who won Earl Washington's release from death row nine days before he was scheduled for execution, founded the Innocence Project at the Benjamin N. Cardozo School of Law. The Innocence Project provides pro bono legal assistance to inmates who are challenging their convictions based on DNA testing of evidence. Since its inception the Innocence Project has represented or assisted in more than 100 cases where convictions have been reversed or overturned in the US.

Similar fledgling Innocence Projects have also sprung up in Australia. The Griffith Innocence Project tries to foster an Australian legal culture that champions the defence of the innocent. It is also a pro bono project that brings lawyers, academics and law students together to investigate and legally challenge wrongful convictions in Australia. Students work under the guidance of academics and the instruction of lawyers on projects that meet strict guidelines, including the claim of factual innocence and erroneous DNA evidence.

The project does not accept cases where a conviction would be overturned through a technicality rather than by establishing innocence, or cases of sexual offences where there is an admission of sexual contact.

Griffith University Innocence Project director Lynne Weathered said the use of fabricated evidence to convict Ray and Peter Mickelberg for the 1982 Perth Mint Swindle, in which $653,000 worth of gold was stolen, demonstrates one of the causes of wrongful conviction in the Australian criminal justice system. "Innocent people do end up in prisons and stay there despite numerous appeals. While it is a good system, it does not always end up protecting the innocent," Weathered said.

Renton's case underlines Weathered's argument. Unlike the US experience and the Thomas, Button and Dougherty cases, Renton's conviction for a bank robbery he says he did not commit rests on the disputed DNA evidence used at his trial. Boettcher's scientific conclusions support Renton's claims but as the legal processes have been exhausted he enters his seventh year of walking the yard inside the maximum-security block at Townsville prison. Renton's case reinforces the jail-yard philosophy that there's no sympathy for an innocent man doing hard time inside the Queensland prison system. If you want sympathy, it's in the dictionary – between shit and syphilis.

 

I LEFT THE Queensland prison system and was paroled back to NSW in October 2000. I continued my journalism studies but the Renton case and the interpretation of DNA evidence in criminal trials kept niggling at me, like an itch you can't get at. An innocent man doing hard time, I could relate to that. They "fitted me up" for an armoured van robbery in 1991. I wasn't good for it, but they kept me in prison until they arrested two other blokes and then told me: "Whoops, we made a mistake. Sorry about that," before letting me out again.

That's how the game was played in my day. If they didn't get you for what you did then they put you in jail for what they thought you did. As a career criminal I had experienced the "fit-ups", the "verbals", the "pay-offs" and the jail time. It was all part of the game. Like playing cops and robbers when you're a kid – someone has to be the goodie and somebody has to be the baddie. But when you're a kid the game ends after your mother calls you in for dinner.

The game never ended for Marc Renton. They are still playing with his life in the game they call justice and the scientific interpretation of DNA in Queensland.

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