And the Blood Cried out: A Prosecutor's Spellbinding Account of the Power of DNA.

• Author: Giannelli, Paul C.

HARLAN LEVY, AND THE BLOOD CRIED OUT (New York: Basic Books, 1996) 223 pp.

Harlan Levy's book, And the Blood Cried Out: A Prosecutor's Spellbinding Account of the Power of DNA, traces the use of DNA evidence in criminal cases.(1) In 1985, Dr. Alec Jeffreys of the University of Leicester, England, recognized the utility of using DNA profiling in criminal cases.(2) The first use of DNA profiling in American courts came the following year.(3) The first appellate case, Andrews v. State,(4) was reported in 1988. By January 1990, forensic DNA analysis had been admitted into evidence "in at least 185 cases by 38 States and the U.S. military."(5) Today, DNA evidence is admissible in every state and federal circuit--in one 6 form or the other.(6)

These developments are remarkable. No other scientific technique has gained such widespread acceptance so quickly. No other technique is as complex(7) or so subject to rapid change. The change is so dramatic that during the 1980s, new DNA technologies were introduced as cases litigating the older procedures worked their way through the court system.(8) As Levy observes, DNA evidence "raised issues at the cutting edge of modem law and science."(9) Indeed, important developments have occurred since the publication of Levy's book: the first judicial use of mitochondrial DNA;(10) RFLP chemiluminescence;(11) DNA from cats;(12) and DNA from trees.(13) In addition, Australian scientists have reported retrieving usable DNA samples from the inside of condoms worn as briefly as one minute without ejaculation.(14)

Finally, no other technique has been as potentially valuable to the criminal justice system.(15) One court called DNA evidence the "single greatest advance in the `search for truth' . . . since the advent of cross-examination."(16) Even its critics acknowledged that "[a]ppropriately carried out and correctly interpreted, DNA typing is possibly the most powerful innovation in forensics since the development of fingerprinting in the last part of the 19th Century."(17)

The DNA story is a tale worth telling--even if it were not so "spellbinding."(18) Although And the Blood Cried Out was written for the general public, it is worthwhile reading for lawyers. Mr. Levy's style is clear, concise, and readable. The book goes beyond DNA evidence; Levy describes other aspects of the criminal justice system, such as police interrogation techniques and trial strategy, and then explains how DNA fits into this system. In Part I, I address Levy's general observations about the justice system, including comments on police interrogations, defense attorneys, and juries. Part II critiques Levy's rendition of the DNA story. Part III addresses the lessons that I draw from this story. In my view, the criminal justice system was not prepared to deal with DNA evidence. As a result, a number of significant legal issues arose in the early DNA cases. They include: (1) use of improper scientific procedures; (2) insufficient pretrial discovery; (3) difficulty obtaining defense experts; and (4) lack of independent scientific studies. These issues are important and deserve more attention than Levy provides.

1. THE CRIMINAL JUSTICE SYSTEM

   Overall, Levy excels at explaining how the criminal justice system works. Several illustrations are noteworthy.

   First, throughout his book, Levy tells the victims' stories. Too often lawyers, including myself, talk about "rape cases" in the abstract.(19) Levy does not let us escape the real nature of rape. He is graphic in some of his descriptions but is not sensationalistic. His description of the brutality and degradation of the rape victims is palpable. For example, he reminds us that "the injuries to the Central Park jogger were so severe that they could not take the time to do a rape kit procedure until several hours after she was brought in."(20) The reader is also introduced to the "East Side Slasher," Matias Reyes, a serial rapist who stabbed his victim's eyes so they could not identify him.(21)

   Second, Levy's description of police interrogation techniques is quite informative. In explaining the questioning of the East Side Slasher, he writes:

   When detective Mike Sheehan was brought in to question Reyes about the

   homicide, he had no hard evidence with which he could confront him. He had

   nothing to work with but his skill at what he did for a living, and some

   considerable charm. The rare ability to turn on the charm for a low-life

   who has raped someone just hours earlier is an important part of a

   successful detective's arsenal.(22)

   Levy then explains how Detective Sheehan misled Reyes into confessing.(23) Later, he explains how other New York City detectives tricked a suspect in the Central Park jogger case into making incriminating comments, falsely telling the suspect that there were "fingerprints on the jogger's pants or running shorts."(24)

   Levy also relates how police respond to the Miranda decision. One of the contradictions of Miranda is that the police are entrusted with the responsibility of giving legal advice to a suspect.(25) Levy writes that the

   Miranda warnings, advising the suspect that he need not talk,

   will have been read with the verbal equivalent of a wink, in a

   tone and cadence suggesting that all in the room know that this

   is simply a formal legal nicety to be gotten past before they

   get down to business.(26)

   Third, perhaps Levy's most insightful points concern his courtroom adversary--the defense counsel. In the context of the O.J. Simpson trial, he tells us that:

   The best criminal defense attorneys are often distinguished from the

   lesser lights by their focus on broad themes and their ability to marshall.

   facts to support those themes. A less qualified lawyer will simply quibble

   with the prosecution's case, nitpicking every small inconsistency or

   contradiction, reminding the jury at every opportunity that the burden of

   proof is on the prosecution, that the defense has to prove nothing; when

   the case is done, the lawyer takes his bows for a good try, and the client

   is lead off to a jail.(27)

   Levy goes on to state that the "best defense lawyers, from the celebrated to the obscure, know that no matter what the law says about who bears the burden of proof, they must pose a theory or theories that the jury will see as supporting the client's innocence and then develop facts that support this theory."(28)

   My only complaint concerning Levy's explanation of the justice system is a statement that he makes about Bronx juries. He writes that "Bronx juries are notoriously friendly to defendants in criminal cases, much more so than those in Manhattan, where I worked as a prosecutor."(29) This is a startling statement, one that cries out for an explanation. None is given. Are we to read "race" between the lines?(30) The reader needs more.

   1. PROSECUTION VIEW

   Mr. Levy served as a prosecutor, and he writes from that perspective.(31) This is neither unexpected, nor is it necessarily a criticism. I would be surprised if his perspective was otherwise, but it does manifest itself in some striking ways. For example, in explaining plea bargaining, Levy writes:

   There are few decisions a prosecutor must make as difficult as the choice

   between offering a defendant a lesser sentence on a plea bargain and going

   to trial. After a trial, a convicted defendant will likely get an extremely

   lengthy sentence, something close to what he deserves. But if he

   is not convicted at trial, the defendant is a free man, free to go out and

   prey on society again.(32)

   The possibility that the "free man" might be an "innocent man," a fact buttressed by the lack of evidence (at least in the eyes of the acquitting jury), never seems to occur to Levy. A newly released Department of Justice report discusses the exoneration of twenty-eight convicts through the use of DNA technology--some of whom had been sentenced to death.(33) The report supports Levy's DNA argument, but it also raises other issues. Prosecutors tried almost all of these cases (one was a guilty plea); these prosecutors helped convict innocent people. This ought to give prosecutors pause when automatically assuming the guilt of a defendant. Indeed, Levy discusses one of these cases, the Honaker case, in which prosecutors misused hair evidence to obtain a conviction.(34) Levy notes that "[t]here was no question that the state hair expert [at Honaker's trial] had overstated the distinctiveness of the hair recovered from the victim's shorts in his trial testimony."(35) This comment is a gross understatement. According to Levy, the expert testified: "It is unlikely that that hair would match anyone other than the defendant, but it is possible."(36) At best, the expert could have testified that the hairs were "consistent," which means that they could have come from Honaker or thousands of other people.(37) A competent prosecutor should have known this.(38) In addition, the fact that the victim had been hypnotized prior to trial was not revealed until the post-trial proceedings.(39) This is a patent constitutional violation.(40) Honaker spent ten years in prison.

   Levy's prosecution perspective manifests itself in other contexts as well. In another passage, he observes that: "[C]riminal juries often show a remarkable ability to make subtle distinctions, sometimes to a fault, as they pore over and dissect evidence."(41) Here, Levy is criticizing juries for being conscientious. Yet, the law often requires the jury to make "subtle distinctions" and demands that "they pore over and dissect evidence." Indeed, the jury in the O.J. Simpson trial was criticized for not pouring over the evidence.(42) Moreover, the jury serves other purposes. As the United States Supreme Court has noted, defendants in criminal cases are accorded the right to jury trial "in order to prevent oppression by the Government" and that "[p]roviding an accused with the right to be tried by a jury of his peers [gives] him an inestimable safeguard against the...