[The Boston Globe]
[The Boston Globe]

     A ruling vs. DNA evidence: Judge rejects some tests affecting 5 cases

     By Zachary R. Dowdy, Globe Staff, 03/12/96

     A Superior Court judge has thrown out DNA evidence in the trials of
     five murder defendants in Suffolk County, ruling that testing methods
     used by a Boston laboratory were not sufficiently rigid, or that the
     lab failed to use accepted techniques.

     Under the decision, some DNA evidence will be allowed in four of the
     cases, but not in one case - the Takeisha McNickles slaying.

     Judge John F. Moriarty's decision is likely to weaken the
     prosecution's cases against the five defendants in the four cases,
     including the 1992 murder and rape of 12-year-old Takeisha McNickles
     in Dorchester.

     Moriarty generally accepted the scientific theory for the type of DNA
     testing used in the cases. But he rejected as too haphazard the
     methods of workers at the Boston lab - the Center for Blood Research -
     who performed tests on samples gathered in the case against Robert
     McNickles.McNickles is charged with raping and murdering his niece,
     Takeisha, and killing her disabled grandfather, Thomas McNickles, 52.

     The other defendants affected by Moriarty's decision are: Henry Juan
     Williams, charged in the March 1994 killing of Zachariah Johnson;
     Herdius Evans and James Ware, accused of killing Alan Hill in May
     1993; and Vau Sok, charged with strangling a 5-year-old Revere girl,
     Annorian Or, in May 1992.

     In those cases, Moriarty rejected the lab's procedures, saying they
     are too untested to be commonly accepted as evidence in trials.

     DNA, or deoxyribonucleic acid, is a molecule bearing a genetic code
     that is considered unique to each person, excluding identical twins.

     Used as evidence, DNA has gained various degrees of acceptance in
     courtrooms across the country. But judges and lawyers continue to
     grapple with the different kinds of tests.

     ``Obviously, I'm pleased,'' said John J. Bonistalli, who is defending
     Robert McNickles. ``This does indicate that one form of DNA analysis
     is acceptable and reliable, but it cautions that the testing be done
     by qualified people who follow the requirements that have been
     standardized.''

     Evidence in all of the cases was analyzed by the Center for Blood
     Research, of Boston, headed by Dr. David H. Bing.

     The judge, who began reviewing the DNA cases last August, said in a
     195-page decision that Bing refused to have key information
     independently reviewed, a safeguard recommended by a team of FBI and
     forensic researchers who, in 1990, devised guidelines for DNA testing.

     ``Dr. Bing's apparent willingness to depart from those guidelines is
     disquieting at best,'' Moriarty wrote, adding, ``Dr. Bing did admit
     that in his laboratory, even though he has more than one person read
     each test result, the last word is his.''

     Moriarty relied on legal precedent and scientific information in
     weighing both the methodology and the theory of the so-called PCR or
     polymerase chain reaction method of DNA testing used in each of these
     cases.

     However, in four of the murder cases Moriarty ruled that two
     techniques - the Polymarker and the D1S80 testing kits - were too new
     and untested to guarantee reliability.

     James L. Sultan, the lawyer representing Williams, said he was pleased
     with Moriarty's decision. It bars the results of procedures the state
     used to link his client to Johnson's fatal stabbing.

     ``It's a real blow for the efforts of the commonwealth to use this DNA
     evidence willy-nilly,'' he said.

     The PCR method, developed in 1985, is a cheaper, faster method than
     another technique, designated as the RFLP method, which justices of
     the Massachusetts Supreme Judicial Court endorsed in a landmark
     decision in 1994.

     But the PCR method is often used in cases where smaller samples of
     organic material - blood, hair, semen, saliva - are recovered from
     crime scenes. In the PCR method, laboratory technicians produce copies
     of a segment of DNA for analysis against samples taken from a suspect.
     The PCR theory itself was not at issue in the case.

     All of the evidence in cases where the researchers used the D1S80 and
     Polymarker techniques will be suppressed under Moriarty's ruling,
     while the results of another, more reliable technique - used in all
     except the McNickles case - will be admitted.

     This story ran on page 15 of the Boston Globe on 03/12/96.

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