State v. Gentry

Utter, J.

(dissenting) — The majority of this court approves the admission of unreliable evidence in criminal cases. To the extent it does so, it invites freeing those who may be guilty and convicting those who may be innocent. Both the National Academy of Sciences Report, on which this court relied in a previous case, and the testimony of the scientists at the Frye v. United States, 293 F. 1013 , 34 A.L.R. 145 (D.C. Cir. 1923) hearing established that, at the time of Gentry’s trial, polymerase *659 chain reaction (PCR) deoxyribonucleic acid (DNA) evidence was not yet generally accepted as a methodology capable of consistently producing reliable results on forensic samples. Furthermore, admission of the PCR evidence in this case is problematic because the scientist performing the testing failed to follow the manufacturer’s protocols. Accordingly, the PCR evidence should not have been introduced because it fails the second prong of the Frye test, which requires a methodology to be generally accepted before its results may be admitted in court.

I also dissent because Gentry’s sentence is arbitrary and capricious under RCW 10.95.130(2)(b) when viewed against other aggravated murder cases which did not result in the penalty of death.

I

Admissibility of Pcr Under Frye

The admissibility of novel scientific evidence in this jurisdiction is governed by the Frye test. See Frye v. United States, supra at 1014. That Frye test permits the admission of evidence deriving from a scientific theory or principle only if the theory or principle has achieved "general acceptance in the relevant scientific community”. State v. Martin, 101 Wn.2d 713, 719 , 684 P.2d 651 (1984).

The Frye test has two prongs: (1) whether there is a theory which has achieved general acceptance in the scientific community, and if so, (2) whether the technique used to implement that theory is also generally accepted in the scientific community. State v. Cauthron, 120 Wn.2d 879, 888-89 , 846 P.2d 502 (1993). If a significant dispute exists among qualified experts as to the validity of the scientific evidence, either as to the underlying theory or its implementing technique, it may not be admitted. Cauthron, 120 Wn.2d at 887 . A third prong, which inquires whether the technique was properly carried out in a given instance goes to weight, not admissibility. Cauthron, 120 Wn.2d at 889 ; State v. Kala-kosky, 121 Wn.2d 525, 540 , 852 P.2d 1064 (1993).

Adherence to the Frye test was recently reiterated in State v. Cauthron, 120 Wn.2d at 886-89 , which held restricted frag *660 ment fragment length polymorphism DNA (RFLP-DNA) evidence admissible. In deciding whether RFLP testing was admissible under the Frye standard in Cauthron , this court looked to a new and exhaustive report issued by the Comm, on DNA Technology in Forensic Science, DNA Technology in Forensic Science (Nat’l Academy Press 1992) (NRC Report). Relying on the report, the majority held that RFLP had achieved general acceptance in the forensic context, and as such was admissible under Frye. See State v. Cauthron, supra.

The same NRC Report states that PCR testing has not achieved full acceptance in the forensic context:

In summary, it is well established that one can greatly amplify a locus with authenticity and that one can reliably detect alleles or sequence variation at the amplified locus with any of a number of techniques. PCR analysis is extremely powerful in medical technology, but it has not yet achieved full acceptance in the forensic setting. The theory of PCR analysis, even though it is the analysis of synthetic DNA, as opposed to the natural sample, is scientifically accepted and has been accepted by a number of courts. However, most forensic laboratories have invested their energy in development of RFLP technology and have left the development of forensic PCR technology to a few other laboratories. Thus, there is no broad base of experience in the use of the technique in identity testing.

In general, further experience should be gained with respect to PCR in identity testing. Information on the extent of the contamination problem in PCR analysis and the differential amplification of mixed samples needs to be further developed and published. A great deal of this information can be obtained when a number of polymorphic systems are available for PCR analysis. Ambiguous results obtained with a number of polymorphic markers will signal contamination or mixtures of DNA in a sample.

Quantification of PCR results needs to be explored, to make the results more reliable. Laboratories that gain experience with PCR should determine the relationship between cycle number and percentage of contaminating DNA easily detected for each system used. Control primers that amplify small amounts of DNA reliably and robustly need to be added to test amplifications. In general, information derived from the new polymorphic loci under standardized conditions with easily quantifiable results or end points is needed. Considerable advances in the use of PCR in forensic analysis can be expected soon; the method had enormous promise.

(Italics mine.) NRC Report, at 70.

*661 The NRC Report clearly indicates that PCR testing is subject to technical difficulties which may substantively affect the reliability of the results produced. The NRC Report also specifically states that these problems, namely differential amplification, contaminated samples, and mixed samples, have not yet been adequately addressed. For that reason, this methodology had not yet achieved general acceptance in forensic testing.

The error of concluding PCR has achieved general acceptance in the scientific community for testing on forensic samples was comprehensively set forth in the dissent in State v. Russell, 125 Wn.2d 24 , 882 P.2d 747 (1994). The dissent’s reasoning in Russell , in which I fully concurred, applies with equal force here. Because the evidence fails to meet the part of Frye which requires general acceptance of the implementing technique at issue, the trial court erred in admitting it.

Even disregarding the conclusion of the NRC Report, which is singularly awkward given this court’s reliance on that report in State v. Cauthron, supra, the testimony at the Frye hearing established the numerous difficulties associated with producing reliable results when PCR is applied to forensic samples. The testimony indicated that the reliability of PCR testing in the forensic context is at the very least the subject of significant controversy in the scientific community. Accordingly, the majority’s treatment of it as generally accepted is untenable.

The evidence presented at the 6-week Frye hearing included seven expert witnesses and the forensic scientist, Dr. Blake, who conducted the tests whose admissibility is at issue here.

The experts at the hearing could not agree. That testimony, summarized below, establishes beyond any doubt that the majority’s conclusion the evidence is admissible under Frye because it is generally accepted is erroneous.

The following scientists testified for the State: Haig H. Ka-zazian, Jr., M.D., Henry A. Erlich, Ph.D., Stephen P. Daiger, Ph.D., Cecilia Hlavaty von Beroldingen, Ph.D., and Edward T. *662 Blake, Ph.D. For the defense were Aimee Bakken, Ph.D., Ashok Bhagwat, Ph.D., and Mr. David Adler. An affidavit from Dr. Richard Roberts was also admitted.

Dr. Haig Kazazian, Jr., director of the Center for Medical Genetics at Johns Hopkins, had used PCR for medical diagnosis but had never tested crime scene evidence. He testified that PCR can be used on degraded and old samples. He stated he had reviewed the Cetus Corporation’s PCR kit, which he had not used, and that the procedures would be generally accepted in the scientific community. 10 Report of Proceedings, at 280; 11 Report of Proceedings, at 444-45.

Dr. Kazazian reviewed Dr. Blake’s conclusions and stated the results appeared to be accurate. 10 Report of Proceedings, at 292-93. At the time of his testimony he was a member of the National Research Committee of the National Academy of Sciences, which had not released its report on DNA. Because it was confidential, Dr. Kazazian testified he could not reveal its contents but that to the best of his knowledge there was a consensus of the committee on the use of the Cetus DQ-alpha technology for forensic purposes. 10 Report of Proceedings, at 247, 250.

Dr. Roberts, a molecular biologist, has worked with DNA since 1972 and was the assistant director for research at Cold Spring Harbor in New York. His affidavit concluded that there is not a generally accepted method to assure the PCR amplification is of the product sought to be amplified rather than of a contaminant. He concluded that "at our present state of knowledge, or ignorance, it would be imprudent to rely upon data obtained solely by the PCR method.” He also reviewed the PCR testing Dr. Blake performed in this case and concluded he could not agree with Dr. Blake that the shoelace bloodstains unequivocally showed a genotype of 1.2, 3, because there was contamination in the control which showed a 1.1 allele. Ex. 15 (Frye).

Dr. Henry A. Erlich is a geneticist and director of the Human Genetics Department at Cetus Corporation, and has been used as an expert in other criminal trials. 11 Report of Proceedings, at 471, 466; 12 Report of Proceedings, at 496. *663 He testified that PCR is reliable if the person understands the principles of PCR, carries out the reactions carefully and knows how to interpret the data. 12 Report of Proceedings, at 543.

The trial court admitted for cross examination purposes an affidavit written by C. Thomas Casey, M.D., the chairman of the Institute for Molecular Genetics at Baylor College of Medicine and the medical director of a DNA diagnostic laboratory at Baylor. His affidavit was written in October 1989 for use in the McSherry case. People v. McSherry, 14 Cal. Rptr. 2d 630 (1992) (ordered withdrawn from publication in official reporter). His affidavit concludes PCR testing is new, not yet validated, and that the testing result excluding the defendant, McSherry, as a source of the DNA was incorrect. Dr. Erlich testified he thought Dr. Casey had changed some of his opinions since writing the McSherry affidavit. 13 Report of Proceedings, at 711.

An affidavit from Dr. Kenneth K. Kidd, professor of genetics, biology and psychiatry at Yale University School of Medicine, concluded he was unaware of any literature that addresses the problems of PCR evidence in the forensic context.

Dr. Edward T. Blake, a forensic serologist with a doctorate in criminology who has previously testified regarding PCR-DNA evidence, performed the PCR tests in this case. He typed the blood on both of Gentry’s shoelaces. In the first testing, conducted July 1989, he was unable to obtain any DNA typing because the material removed from the shoelaces inhibited the amplification reaction, 20 Report of Proceedings, at 1286-88; Ex. 4, at 3 (Frye). However, when he ran PCR tests again in April 1990, he concluded that the genotype on each shoelace was 1.2, 3, consistent with the genotype of the victim. 13 Report of Proceedings, at 853; 20 Report of Proceedings, at 1288, 1221; Ex. 4 (Frye).

Dr. Blake described the PCR DQ-alpha test and the controls he used to avert laboratory contamination. He testified further that his laboratory, Forensic Science Associates, was the only crime laboratory routinely using PCR on crime scene evidence in August 1990.19 Report of Proceedings, at *664 1151. By March 1991, several other labs were using the test. 19 Report of Proceedings, at 1159-60, 1166. Dr. Blake testified that each type of "differential amplification”, which can lead to allelic dropout and a mistyping of the sample, has its own remedies. 20 Report of Proceedings, at 1193-94.

Stephen P. Daiger, Ph.D, a professor of medical genetics at the University of Texas, testified that PCR in the forensic context poses a relatively low, but measurable, probability that there will be a differential amplification (causing allelic dropout) and that it would typically lead to the erroneous exclusion of a suspect. 18 Report of Proceedings, at 817-18. He testified that the presence of two alleles in the Gentry test argued against allelic dropout in this case. 18 Report of Proceedings, at 924-25. He also acknowledged the danger of contamination in the forensic setting but stated that certain measures could help to eliminate contamination. 18 Report of Proceedings, at 912-15. He testified that the reverse dot blot testing done here was generally accepted in the scientific community, 18 Report of Proceedings, at 920, and that the population genetics data bases were generally accepted as reliable, 18 Report of Proceedings, at 925-26. He found Dr. Blake’s results acceptable and opined the Cetus DQ-alpha protocols would be generally accepted in the scientific community. 18 Report of Proceedings, at 923,1016.

Cecilia Hlavaty von Beroldingen, Ph.D, a forensic DNA specialist with the Oregon State Police Crime Laboratory, testified that using DQ-alpha PCR method for forensic casework does not alter the usual PCR amplification, but that in forensic samples the DNA may be exposed to environmental insults that damage the DNA and may be comprised of mixed samples, i.e., mixtures of biological stains from two different individuals. 23 Report of Proceedings, at 1616, 1655. She reviewed Dr. Blake’s report and agreed with its results. 23 Report of Proceedings, at 1609-10. She described the possibility of allelic dropout (the preferential amplification or differential amplification) as a phenomenon which results in the number 1 allele not being detected because it is not amplified. She opined this had not occurred in the *665 Gentry case because there was amplification of the number 1 allele. 23 Report of Proceedings, at 1613.

Ashok S. Bhagwat, Ph.D., a professor of chemistry at Wayne State University, with 12 years’ experience working with DNA, but who has not done forensic testing, testified that the differences between PCR testing in the research lab and in the forensic context are substantial and that PCR testing is not generally accepted in the scientific community for testing on crime scene evidence because of the problems of contamination and limited samples preventing duplicate testing. 28 Report of Proceedings, at 2238-40, 2290. With regard to contamination, he stated that PCR is so powerful that a single cell contamination could be devastating to the result and that the problem of contamination is unlikely to be easily solved for evidence arising from crime scenes. 28 Report of Proceedings, at 2238-39. He testified that unless there was sufficient sample to perform duplicate testing, the scientific community would not accept the results as reliable. 28 Report of Proceedings, at 2239. He reviewed an article by Westwood and Werrett, An Evaluation of the Polymerase Chain Reaction Method for Forensic Applications, Forensic Science Int’l (1990), and concluded that it raised serious questions about the application of the Cetus DQ-alpha kit and the reverse dot blot use for interpreting forensic evidence. See 28 Report of Proceedings, at 2253; Ex. 86 (Frye). He also reviewed the article Use of Formamide to Improve Amplification of HLA DQ-alpha Sequences, by Comey, Jung and Budowle, vol. 10 BioTechniques no. 1 (1991), and concluded that it said that allelic dropout could occur in the PCR amplification process even if the temperature in the thermal cycler was properly maintained. 28 Report of Proceedings, at 2286; Ex. 87 (Frye).

Dr. Bhagwat testified it was not possible to report a reliable result from the tests run on Gentry’s shoelaces because the controls taken from an unstained part of the shoelace showed DNA and the allele in that control did not show up on the test of the bloodstain. 28 Report of Proceedings, at 2256-57. Dr. Bhagwat agreed with Dr. Robert’s affidavit that *666 PCR was not yet generally accepted for use on forensic samples. 28 Report of Proceedings, at 2252-53.

Mr. David Adler is a research associate and faculty member at the University of Washington with a masters degree in molecular biology who has conducted thousands of PCR tests, but not in the forensic setting. 29 Report of Proceedings, at 2385-90. He testified the Cetus DQ-alpha PCR kit was not generally accepted by the scientific community as reliable for use on crime scene evidence, 29 Report of Proceedings, at 2397, and testified regarding the problems in understanding the thermodynamics, mixed samples and limited samples making duplicate testing impractical. 29 Report of Proceedings, at 2398-2401. He also criticized the Gentry test conclusions because of contamination in the environmental controls in the shoelaces, and because there was no duplicate testing. 29 Report of Proceedings, at 2440-44.

Aimee Hayes Bakken, Ph.D., is a professor and researcher in biology at the University of Washington who has not done any DNA testing on crime scene evidence and has not personally performed PCR testing. 27 Report of Proceedings, at 2086-87, 2168. She testified Dr. Blake’s conclusions in the Gentry case would not be generally accepted in the scientific community. 27 Report of Proceedings, at 2097. Prom reading the literature, she concluded that PCR is not generally accepted in the scientific community for forensic use as it is still an evolving technique. 27 Report of Proceedings, at 2176.

The majority’s approval of the admission of PCR evidence in this case is erroneous because it treats as generally accepted a testing method which the NRC Report and the testimony indicated was not generally accepted at the time it was admitted. Admission of the evidence is also problematic because Dr. Blake deviated from the manufacturer’s protocols in conducting the testing. See 27 Report of Proceedings, at 2132. See also 20 Report of Proceedings, at 1217,1219. The majority does not address this aspect of the case. It stands to reason, however, that even if there were a generally accepted methodology by which to conduct PCR testing, it would remain an issue *667 whether the scientist conducting the test so deviated from the generally accepted protocols of that methodology that it could no longer properly be said he followed that generally accepted methodology. See NRC Report, at 55 (repeatedly emphasizing that testing should be conducted with proper protocols, and that evidence should not be admitted in court absent rigorous indicia that reliable methods and standards were used).

In sum, when PCR DNA evidence was admitted at the time of Gentry’s trial, there was acceptance of the scientific theory underlying PCR DNA evidence, but no consensus about the reliability of its implementing techniques in the forensic context. Furthermore, even if there were a generally accepted methodology, there is no testimony it was followed in this case. The evidence was therefore inadmissible and should have been excluded by the trial court.

II

Proportionality

I also take issue with the majority’s proportionality analysis. Contrary to the majority’s conclusion, the death penalty is not proportionate under RCW 10.95.130(2)(b).

RCW 10.95.130(2)(b) requires this court to consider whether the "sentence of death is excessive or disproportionate to the penalty imposed in similar cases”.

A sentence is excessive or disproportionate if it has not "generally been imposed in similar cases”. (Italics mine.) In re Jeffries, 114 Wn.2d 485, 490 , 789 P.2d 731 (1990); State v. Rupe, 108 Wn.2d 734, 767 , 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); State v. Lord, 117 Wn.2d 829, 939 , 822 P.2d 177 (1991) (Utter, J., dissenting), cert. denied, 121 L.Ed. 2d 112 (1992). A sentence is not "generally” imposed unless it is imposed in at least 50 percent of similar cases. State v. Jeffries, 105 Wn.2d 398, 437 , 717 P.2d 722 (Utter, J., dissenting), ce rt. denied, 479 U.S. 922 (1986); Lord, 117 Wn.2d at 939 .

The legislative requirement that we determine whether the death penalty is generally imposed in similar cases does not require this court to match with exactitude one murder *668 case against another. However, if it cannot reasonably be said the death penalty generally is imposed in cases sharing similar features, or in worse cases, it cannot be proportionate under RCW 10.95.130(2)(b).

Imposition of the sentence of death is not always disproportionate. In State v. Dodd, 120 Wn.2d 1 , 838 P.2d 86 (1992), the sentence of death was not disproportionate because there were no similar cases in which the death penalty had not been imposed. It was therefore possible to reasonably conclude the penalty of death under RCW 10.95.130(2)(b) was not imposed arbitrarily and capriciously. That case involved the multiple murder of children who died after prolonged torture, one after as many as 14 hours of torture. The aggravated murder reports describe the facts as gruesome "due to the victims’ ages [11, 12 and 4], defendant’s extreme degree of sexual preoccupation, and the obsession with possibility of vivisecting children”. Report of the Trial Judge (Aggravated Murder Report) (Dodd) No. 76, at 12. The trial judge commented on his case, "I have practiced criminal law as an attorney and a judge for 31 years, and this ranks among the most heinous that I’ve been involved in out of some 40 or 50 homicides over those years.” Report of the Trial Judge (Aggravated Murder Reports) (Dodd) No. 76, at 13.

Similarly, it was possible in State v. Rice, 110 Wn.2d 577 , 757 P.2d 889 (1988) to uphold the penalty of death under RCW 10.95.130(2)(b). In that case, too, the nature of the crime, involving extreme and gratuitous brutality in the murder of an entire family, including children, made it possible to conclude the penalty of death was not being visited on the defendant arbitrarily or capriciously.

The same simply cannot be said here. The most salient features in this case are the age of the victim, the sexual assault, the seriousness of Gentry’s criminal history, which includes a manslaughter conviction and a rape conviction, and the paucity of mitigating evidence. The majority correctly identifies these salient features, but fails to engage in a discussion of their relevance in a manner that explains why equally, or arguably more, heinous cases which did not *669 result in the penalty of death. Under the circumstances, the penalty of death cannot be considered other than arbitrary.

The cases below, culled from the Aggravated Murder Reports, involve multiple murders, murder involving extreme and prolonged suffering on the part of the victim, and a victim particularly vulnerable due to age. In none of these cases was the penalty of death imposed. The majority’s resolution of the proportionality issue cannot account for murder cases arguably worse than this one in which the prosecutor either did not seek, or the jury did not impose, the death penalty. To the extent that is true, the death penalty cannot be considered proportionate in this case.

Martin Sanders (No. 81). Sanders killed two children after raping them. Aggravating factors were multiple victims, rape, concealment and common scheme or plan. He had convictions for kidnapping, assault, and rape. No mitigating circumstances appear in the report. He received life without the possibility of parole.

Stephen Carey (No. 10). Carey murdered his estranged wife and 18-month-old child by setting their trailer on fire. See State v. Carey, 42 Wn. App. 840 , 714 P.2d 708 , review denied, 106 Wn.2d 1003 (1986). The wife survived 18 hours before she died of third degree burns over 100 percent of her body. The aggravating circumstance was arson. The report lists no mitigating circumstances. He received life without the possibility of parole.

Cherno Camara (No. 130). Camara murdered two of his children with a hatchet and struck his former wife in the leg with a hatchet, causing a severe laceration. She escaped and survived. Camara had a prior conviction for fourth degree assault and for the unlawful display of a weapon. The report indicates he suffered from post traumatic stress disorder. The jury did not impose the death penalty.

Minviluz Macas (No. 101). Macas set fire to her house, killing her 85-year-old husband and two of her children, ages 9 and 11. She had no prior record. The State did not seek the death penalty.

*670 Stanley Runion (No. 99). Runion killed a child and two adults after taking them hostage. He had two convictions for assault with a deadly weapon. No mitigating circumstances are listed in the report. He received life without the possibility of parole.

Arnold Roy Brown (No. 2). Brown raped and murdered his 7-year-old niece. He had prior convictions for assault, theft, and burglary. No mitigating evidence appears in the appellate reports. The jury did not impose the death penalty. The judge commented that the jury’s failure to do so was inappropriate because there were no mitigating circumstances.

Davis James Dayton (No. 78). Dayton murdered a 3-year-old neighbor. The victim was stabbed repeatedly with a knife and hit over the head numerous times. Dayton had multiple prior burglary convictions. No mitigating evidence appears in the report. He received life without the possibility of parole.

Herbert Rice, Jr. (No. 70). Rice murdered an elderly couple. The victims were tortured and mutilated before being killed. Each was aware of the other’s suffering. The woman was stabbed as many as 85 times. The man’s stab wounds were so extensive the forensic expert indicated he had never before encountered such a case. The expert indicated also that the victims did not die quickly. The aggravating circumstances were multiple victims, robbery, burglary, and concealment. The jury did not impose the death penalty.

Lawrence Sullen (No. 69). Sullen killed a husband and wife and beat and shot their 11-year-old daughter. She survived and was left in the house when Sullen set fire to it. The aggravating circumstances were multiple victims, common scheme or plan, and concealment. No mitigating circumstances are listed in the report. He was sentenced to life without the possibility of parole.

Jonathon Woods (No. 64). Woods abducted an 89-year-old woman, stuffed her into a trunk for 2 to 4 hours and shot her several times in the legs before he shot her in the head. The aggravating circumstances were the crime was one of revenge against a former witness, was committed to conceal *671 defendant’s identity, and occurred in the course of a robbery, burglary, and kidnapping. He had two prior convictions for burglary and one for robbery. The jury was unable to unanimously agree. He received life without parole.

Jeffrey Lane (No. 65). Lane was the codefendant of Woods (listed above). The same aggravators were present. The jury did not impose the death penalty.

William Pawlyk (No. 116). Pawlyk murdered his former girlfriend and her boyfriend. Both victims were stabbed over 100 times. It is inferable the victims experienced great suffering before they died. Pawlyk had no prior record. He pleaded insanity which the jury rejected. The State did not seek the death penalty. He received life without the possibility of parole.

It is evident from the above discussion that the death penalty is not generally imposed even in multiple homicide cases of particularly vulnerable victims. Nor is the death penalty generally imposed where the victim endured more prolonged agony before dying than did Gentry’s victim. Under these circumstances, the imposition of the death penalty on Gentry cannot be considered proportionate under RCW 10.95.130(2)(b).

Johnson, J., concurs with Utter, J., in issue I.