Dna On Trial

DNA on Trial

By Janet Gray

Professor of Psychology Janet Gray traveled to the Martha’s Vineyard home of former Manhattan sex crimes prosecutor—and bestselling crime novelist—Linda Fairstein ’69 to discuss her pioneering work using DNA in criminal prosecutions.

Janet Gray: You were an English literature major at Vassar and then you went on to have two careers—the first as a prosecutor in the sex crimes unit in Manhattan and now as a detective crime novelist. Why the switch?

Linda Fairstein: Well, the reason I went to Vassar really was for the English Lit department. All my young life, I’d always wanted to write. My father was very loving—we were very close—but he’d roll his eyes and say, “You have nothing to write about, you’re going to need a career.” I used to study in the library, up in one of the turrets—my senior seminar was in the library. I spent so much time there and just dreamed about being a writer. My second interest was public service. I was in middle school when JFK was president, and, as did many people of that generation, I responded to his inaugural message: “Ask not what your country can do for you.” That was a big call to public service. So I went to law school figuring that I would find a way to do public service, not at all thinking I would be involved in criminal law, nor for 30 years. 

When I got to law school at the University of Virginia, the dean was my criminal law professor and mentor. I thought criminal law was the most interesting. It had constitutional law wrapped in it, criminal procedure, evidence—all the things that seemed very immediate to me. The dean helped direct me to the office of the legendary Manhattan DA Frank Hogan. It was the premier training ground for young litigators. If you went there to do trial work and stayed three or four years, you could generally go in whatever direction you wanted. I had no particular goal. I thought that being a prosecutor and learning how to try cases would be very important, but then I fell in love with the work and that’s what kept me there 30 years. 

There were no special victims units [for sexual assault cases] in any police department or prosecutor’s office in America in 1972, when I graduated, until the Manhattan DA’s office set the first one up  in ’74. So I started working on those cases before there was a specialized unit, and because I was the only woman among a dozen lawyers, the DA figured I would be more empathetic to victims. That was the classic response in those days, “We have a woman prosecutor, and these are women’s issues, so let’s get her to do these cases.” But these issues fascinated me, and it was a point in time when laws were beginning to change for the better, so my colleagues drafted new laws and we lobbied for legislative reform. What we did was pioneer innovative ways to get these cases into court and to treat victims better, to try to give them victories at trial, which had never been possible in the American criminal justice system.

I handled my first sexual assault case in 1973 and in ’76 I took over the unit, when it was only a year old. That kind of thing would never happen today—to be 29 years old in a big city office and asked to do that—but I was the only woman who’d had experience with these crimes, and the DA, [Robert M.] Morgenthau, the son and husband of Vassar grads, really thought that it was important that a woman be the figurehead in that unit, to send a message to the community that we would be more welcoming. He was very aggressive about women in the workplace at a time when no prosecutors in this country were. He made everything possible for me and backed every reform that we reasonably tried to do in this area. It was thrilling. The feminist movement had agitated for change throughout the ’60s, when I was at Vassar, and we were finally able to implement it. Had I gotten there 10 years earlier, and advances hadn’t been possible, I don’t think I ever would have stayed. 

The scientific piece, which revolutionized the criminal justice system, didn’t come for another 10 years. 

Gray:Let’s talk a bit about that. You were on the first wave of prosecutors to use DNA evidence in trials.

Fairstein: Yes. At Vassar, I was foiled by organic chemistry, so it’s always seemed ironic to me that science became such a critical part of the work I did in the criminal justice field. In 1986, halfway through my 30 years in the DA’s office, there was a very high-profile murder case in Manhattan. Robert Chambers, who was 19, killed a girl named Jennifer Levin in Central Park. The papers dubbed it “The Preppie Murder Case” because he had good looks and had gone to prep school. In the Levin case, the identity of the attacker was not an issue. Within 24 hours, Chambers had admitted to killing Levin, although he claimed it was an accident. So we didn’t need DNA to identify a stranger, but we had real trouble proving what the mechanism of death was, how he killed her. 

So the medical examiner (ME) said to me in the fall of ’86, “There’s a new scientific technique, and you need to learn it because it may be of value in proving that she was asphyxiated.” 

The way Jennifer Levin died was a combination of strangulation and suffocation. Strangulation is usually pretty easy to identify, because there are either finger marks on the body, a broken hyoid bone in the throat, or a mark from a ligature that has been placed around the neck. In this case, the front of the neck was badly bruised, but there were no ligature marks in back. There was blood in her mouth, and it appeared that she had been suffocated by something. There was a denim jacket that she had been wearing found next to the body, with blood on it. The ME told me that Levin had only bled from the mouth and Chambers had only bled from his fingers—presumably he was covering her mouth to stop her screams, and she was biting to free her airway. The ME said there was probably saliva in the blood from her mouth, which would help us prove the jacket had smothered her. Even though the saliva was invisible, the DNA in it would be revealed in tests. 

Although I was familiar with the work of Crick and Watson and their double helix, that was the first time I’d ever heard of DNA as a forensic tool. The medical examiner introduced me to a brilliant young scientist named Jack Ballentyne, who’s still one of the leading scientists in the field. I used to drive out to his lab on Long Island at night after work and he gave me tutorials in the still-evolving techniques of DNA. It was tough. 

Eventually, we called the FBI because it had the only lab in the country doing forensic DNA work. We had to compete with every prosecutor or police department trying to get their case handled. The FBI was very interested in our murder, though, for the odd reason that it was newsworthy. They wanted to know that if they put their resources into a case, it would be written about, it would come to the world’s attention, and we had front-page headlines day after day after day. Even the New York Times, which never covered crime in the A1 section, was writing about underage drinking, private school kids, drugs and alcohol in prep schools, and so our clippings file got pretty big. 

The team of detectives and I went down to Quantico to work on the case. At that time, it took six months to get a preliminary result from the FBI on DNA, which would now take less than 24 hours. By the time I left the DA’s office, we could call the lab and say, “Look, we’re holding a man for rape. It could be the right guy or wrong guy, but I don’t want him to hang himself tonight if he’s the wrong guy,” and they’d let us know within 24 hours. Also, at the time I did my first DNA case, you had to submit a stain of blood, saliva, or seminal fluid the size of a quarter or larger. Now they work in nanograms, from a piece smaller than a fraction of the white of my fingernails. I was lucky, because my bloodstain in the Chambers case was that big, and we figured the saliva stain was even larger. We also had the luxury, with the murder case, of knowing we weren’t going to be ready for trial in six months anyway.

When they got the results back to me in the spring of ’87, it did say that there was salivary amylase, so Jennifer Levin’s saliva had mixed with the blood. We planned to have the scientists testify that the position of Chambers’ blood and Levin’s sample established that the jacket had been held over her mouth to suffocate her. 

The judge listened to a three-week hearing on DNA for which we flew in our experts from Quantico, and at the end of it said, “This DNA technology is too speculative, too unreliable. It’s not a technique that’s been accepted by everyone in the scientific community; therefore I’m not going to allow you to use it in court.” So the jury never heard that testimony. Although they viewed the bloody jacket, they never heard that there was saliva on it, nor that there was DNA from both the victim and the perpetrator. We were never allowed to make our argument about the manner of death. 

So that was my first wake-up call about DNA. It was not until 1989 that DNA was accepted as a reliable scientific technique by an American court. In between, we sent cases for DNA testing to private labs, because no forensic lab had been set up outside Quantico. Mainly DNA testing then was used to exonerate people, because we didn’t have to go to court to do that. I could use it every day in my work to eliminate suspects. If we had a positive DNA match, I’d feel better about the strength of my case, but we could never tell the jury that we had such proof. 

Gray:You mentioned that you initially were not allowed to submit DNA results as evidence. What made the difference? 

Fairstein: Critical mass. Over the years, scientists began to do the tests more often and the results became statistically more accurate. My team knew the value of DNA, having learned about its uses as we watched the techniques change and the standards improve. There were few lab standards at first, so there was a danger of contamination. That was before everybody used gloves and booties. If you look at the old homicide movies, nobody gloved up, and the evidence wasn’t bagged and properly preserved. Scientific standards began to change policing. By 1989 cops were beginning to pick up cigarette butts and ice cream sticks at crime scenes to test for saliva. I can’t begin to tell you how we began to solve cases and bring offenders to justice!

The problem with using mostly private labs, though, was that it was hugely expensive. In the ’80s and early ’90s it cost at least $5,000 per sample to examine DNA evidence. So if I had a rape case and we had several suspects, I’d have to go to the DA and say, this is going to cost $30,000 to analyze. What most prosecutors were doing was the very ugly thing of choosing between cases, asking, “Who’s the better victim? The stronger case?” Morgenthau really knew how to work the system, and he believed in special victims issues, so I could go in and get $30,000, whereas a prosecutor in Erie County might be able to do that on only two cases a year. By the mid ’90s the ME’s office in New York had established a DNA and biological sciences lab, and two years ago, they opened a brand new DNA facility, which is state of the art. It’s the most exciting DNA lab in the country, and their work is extraordinary. 

Gray:The Manhattan ME’s office, as I recall, had the somber and monumental task of using DNA to identify victims’ bodies after 9/11.

Fairstein: Yes. In the days after 9/11, the DNA team at the medical examiner’s office moved in. Most of the scientists slept on the floor there and were working 24 hours, 5 to 7 days a week identifying remains. Every morning on the way to work, I went to see the women and men in the ME’s office lab, taking doughnuts and coffee, the way many New Yorkers did for police and firemen. Whatever fragments were brought to them, they would try to connect to human lives, which meant so much to the families of victims. It was the most extraordinary thing to see science work that way. They are truly my 9/11 heroes.

That was when the lab began to use machines called “robots,” so they could process 100 samples at a time. It was a period of huge expansion of the forensic biology part of the ME’s office, and the 9/11 work was the primary focus. We stayed out of their way. Of course, the crime rate was down for a small period of time, until the bad guys came roaring back. 

Gray:I read that New York’s Governor David Paterson is interested in expanding the state’s DNA database. 

Fairstein: Yes. The newly elected Manhattan DA is Cyrus Vance, my beloved friend. He’s leading that prosecutorial charge.

 DNA databanks were created in the late 1990s, and Morgenthau set up the country’s first cold-case DNA unit, to reexamine unsolved sexual assault cases. Say you have no idea who committed a crime. Your victim tells you nothing—a guy breaks in during the night and the lights are off. He puts a pillow over her head, and she could never in a million years identify him. You put this DNA sample in a computer, and, whiz! Twelve hours or three months or 10 years later you get a match. You can now take a piece of clothing the burglar left behind—maybe he took his sweatshirt off in the apartment because it was warm, and you get his skin cells on the sweatshirt. Or you get fingerprints, which may or may not be on file, but you can get DNA from the body oils left behind within those fingerprints.

Gray:Are there statutes of limitations in the use of DNA evidence?

Fairstein: Some states have eliminated statutes of limitations altogether for sexual assault. Most have a 10-year statute of limitations. Murder has no statutes of limitations. Manhattan DA Cy Vance and two of my former colleagues have expanded the cold-case work to every unsolved homicide in Manhattan going back almost 30 years. They’re pretty confident that they’re going to have findings. Technological advances mean that there is a lot more evidence that can be analyzed. It used to be that seminal fluid and blood were the only things you could use, but now they’re literally getting cigarette butts that were collected at the scene but were of no value then. You can even get trace evidence off of weapons now, using the oils from a person’s fingertips. They’re getting some exciting results. That’s what keeps a lot of lawyers in the public sector. 

Gray:You’ve spoken about how important it is to have such DNA evidence, but do you worry about privacy issues?

Fairstein: Definitely. You can’t propose DNA use without first making sure that every privacy protection is in place. It’s such powerful information, and the idea that it could be used to discriminate because of all the biological information that’s presumably available from the DNA records concerns me. 

Health-related and employment-related issues are the biggest worries, but there are questions of civil liberties, too. Even if somebody’s exonerated in a case, his DNA remains in the databank. If someone is gathering crime-scene evidence, they may find 20 cigarette butts or tissues or a condom left by someone who might not be involved in the crime. So there’s the potential that innocent bystanders whose DNA you don’t want may get swept up in investigations.

Most people don’t know this, but if your fingerprints are taken during an arrest and your case is dismissed, those fingerprints will still remain on file. Smart lawyers will ask to have them expunged. It’s not going to hurt most people because they’re not going to be arrested again. But with a guy who has an arrest history and may be re-arrested, it makes it easy for the police next time because his fingerprints or his genetic fingerprint will show up again. So, as the science evolves, I think we have to be very careful about putting protections in place.

Gray:Can people pull their DNA information out of the databases if they’re not found guilty?

Fairstein: Yes, but each state has different rules and laws about doing it. And part of the problem is that sometimes you’re never going to know that your DNA is there. Say they find 10 t-shirts in Maine where a crime has been committed and the cops say, “Okay, let’s take these.” One of them has the bad guy’s skin cells, DNA, on it, but the others will have been analyzed and be in the databank, too. Jane Doe or John Doe may not even know that his or her t-shirt is there, so they won’t know to go get it back. It’s more of a problem in a situation in which there’s a bank robbery and the police may take everybody’s DNA, until they know who is or is not an accomplice of the perpetrator. In that case, you might have 20 known people from Chase Bank who were there when the robbery occurred, and you might have to say, I’d like my DNA sample back so it’s not in the database. 

Gray:What do you think of all the crime shows on television and their influence on the public perception of police work? 

Fairstein: I can’t criticize them too much, because I write crime fiction and these vehicles are all meant to entertain. What I love about creating my books is that people who would never come to one of my sexual violence lectures or buy my sexual violence book, will read a crime novel, will watch Law and Order: SVU and, while being entertained, learn something in the process. But I prefer shows where the learning is a little closer to reality. CSI makes me crazy. 

Gray:Where do they go wrong?

Fairstein: Some of the science is right, but there will never be a police department that has the kind of equipment that show has for doing that kind of crime scene work, not to mention the lady detectives with décolletage and the officers in Hummers. Also, I don’t know a police department in the world in which the crime scene guys interview suspects. That probably wouldn’t bother most people, but it bothers me because that’s not how a real investigation works. 

Law and Order: SVU does a much better job of highlighting the real issues. This fall, for example, they’re doing a show on the rape evidence collection backlog, which is one of the biggest problems in the American criminal justice system right now. There are several hundred thousand rape evidence collection kits that were prepared in hospitals when victims were examined that have the potential to solve their cases. Most of them have some kind of DNA sample in them, but they remain untested. They sit on shelves in a property clerk’s office or a police station, because there are no funds dedicated to having the kits examined. 

Mariska Hargitay, the lead actress in SVU, started a foundation called Joyful Heart, inspired by her role on the show. She could have decided that animals, hunger, or any other issue was her cause, but because of her role as a detective she has become very involved with rape victims. She’s helped to bring attention to this problem. The organization has been working with a victim who had been attacked 13 years ago as an 18-year-old, kidnapped at a car wash south of LA, driven to another location at gunpoint, and raped repeatedly. Her kit was never examined. 

Eventually, the police pulled the kit and had it tested, but only because she had a Joyful Heart advocate to press for the result. It turns out that the man who had raped her is in jail in Ohio for raping at least one other woman as well as his wife—rapes that didn’t have to happen, of course, if this one had been solved. He was a long-distance truck driver, and I bet if they tested kits along his route, they would find other crimes he committed. This woman’s own rape can’t be prosecuted because of the California statute of limitations, although he may be charged with her kidnapping. 

Linda Fairstein ’69, America’s foremost legal expert on crimes of sexual assault and domestic violence, led the Sex Crimes Unit of the District Attorney’s Office in Manhattan for 25 years. A Fellow of the American College of Trial Lawyers, she graduated from the University of Virginia School of Law in ’72. Her first crime novel, Final Jeopardy, introduced the critically acclaimed character of Alexandra Cooper, who has appeared in eleven other New York Times bestsellers and will appear in her thirteenth caper, Silent Mercy, in March 2011. Fairstein’s nonfiction book, Sexual Violence, was a New York Times Notable Book of the Year. She has been awarded the Nero Wolfe Award for Literary Excellence in the Crime Genre, and the 2010 International Thriller Writers’ Silver Bullet Award. In addition to serving on the Vassar College Board of Trustees, Fairstein is a board member of two victim advocacy groups: Safe Horizon, and actor Mariska Hargitay’s Joyful Heart Foundation.

In addition to being a crime and mystery novel aficionado, Janet Gray, seated right, is professor of psychology, director of the Science, Technology and Society program at Vassar College, and an active participant in Vassar’s interdepartmental program in Neuroscience and Behavior. Gray’s research, writing, and teaching explore the intersection of environmental and women’s health issues, focusing on environmental risks and breast cancer. She directs the Vassar College Environmental Risks and Breast Cancer Project, a team effort that has led to the production of a bilingual, interactive, user-friendly CD and website, and is the principal author of the Breast Cancer Fund’s State of the Evidence: The Connection Between Breast Cancer and the Environment (2008, 2010). Gray is a member of the Vassar Sexual Assault Response Team (SART).

Web-only Feature

Partners Against Crime

Linda Fairstein’s crime novels center on the protagonist Alexandra Cooper, a prosecutor who works in the Manhattan DA’s office, just as Fairstein had for 30 years. But the resemblance only goes so far. Professor of Psychology Janet Gray asked Fairstein just how real are her colorful characters.

Gray: Alex Cooper is clearly based on a lot of what you’ve done. Do you see the character as being autobiographical?

Fairstein: I see her as being professionally autobiographical. She really has all of my passion for the work. It’s that excitement that she finds to be so challenging.  No two days are the same and the dynamics of working so closely with others are fascinating.

So, while the professional side of her is drawn entirely from my work and my passion, the personal side is complete fiction and fantasy. She’s in 13 books and she’s only aged about 2 years. She has a trust fund, which I did not have, but I wanted her to be able to move around in ways that a young public servant really can’t, and I wanted her to have the Vineyard house, which I got in a wonderful marriage, while still being single.

She’s younger, thinner, and blonder than I am, too. I recently got a piece of fan mail saying what a terrible thing I’d done by making her so thin for her height and that it was a very bad thing for the “Sisterhood.” I said, “I’ve done a lot for the ‘Sisterhood, so I hope you’ll allow me this liberty.’” So I’ll adjust the weight, make her a few pounds heavier.

Gray: How about the relationship between Alex and detective Mike Chapman? Did you really work that closely with Homicide?

Fairstein: Very closely. I had many homicide cases that were sexual assaults, so Mike and the character Mercer are composites of the best and the brightest of the cops with whom I worked.

Part of it, though, is going back to my English lit roots. There’s always a sidekick or a partner in the crime dramas. Sherlock Holmes had his Watson, so Alex needed someone to ground her. That’s part of Mike’s role.

Gray: You have framed all three of the main characters—Mike, Mercer, and Cooper—brilliantly. To be able to portray Mike as being crude at times yet so loving and such a good cop is a skill. We want to hate him, but at the same time, we totally respect him.

Fairstein: Yes, he gets away with a lot of political incorrectness. When I first began writing the series, I planned to show the world through Alex Cooper’s eyes. The novels are written in the first person and she’s the protagonist on whom I wanted to focus, but Mike is far and away the most popular character in the series. Women love him and wonder whether he’s real or fantasize about who would play him in the movies, and male readers who would not necessarily pick up a book in which a woman is the main character come to these crime novels because of the history they find there and also because of Mike.

Gray: He’s a guy’s guy!

Fairstein: Writing his character is the most fun because the process is very solitary, unlike my prosecutorial job, which was extremely collegial. I just sit in that chair in my writing studio and look out the window. When I’m creating Mike Chapman’s dialogue with Alex, I close my eyes and get a visual image of Mike—well, a composite, he’s really a couple of guys I worked most closely with. He has their humor, and, even though it’s not a scene out of real life, I know what he’d say to me. I know when he’d shove me out of the way. I know when he’d protect me from something I shouldn’t see.