Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In November 1981, Annie Barcelon dropped her friend off after a party, left to find a parking place, and didn’t come back. After she was found dead — raped and strangled, her black tube top around her neck, her pantyhose pulled down to her ankles — police said they couldn’t find sufficient evidence to charge anyone. Though they’d found semen, the crime lab “was only able to test the samples for blood type at the time,” according to court papers. But times have changed. In 2001, the San Francisco crime lab started analyzing DNA evidence in unsolved sexual assaults and murders with a sexual component, some dating as far back as the 1960s. By comparing the results to state and national DNA databases, the lab has come up with 34 “cold hits” — where the results are matched with the DNA profile of either a potential suspect or evidence in another case. To date, those cold hits have led to at least 10 prosecutions. A murder charge brought against a suspect in Barcelon’s case in February is one of the most recent. While prosecutors and cops have publicly applauded the cold hit program, behind the scenes the DA and public defender are grappling with how to handle the increase in work. Struggling to staff their regular caseloads as it is, both offices also are resisting pressure from City Hall to cut their spending to help address a citywide budget deficit. The age of the revived cases, particularly those that date back decades, presents additional challenges for defense attorneys and prosecutors alike. And the number of cold hit cases is expected to increase. “This was the initial round of cases that sort of woke us up,” said Assistant DA Elliot Beckelman, who’s been meeting with other jurisdictions to see how they handle cold hits. “There’s going to be a lot of cases that can’t just be handled as business as usual.” In the crime lab at Hunters Point Naval Shipyard, seven DNA criminalists are working their way through evidence from approximately 600 crimes, searching for cold hits. The lab got the money to kick-start its cold hit program in 2001. The Governor’s Office of Criminal Justice Planning gave crime labs across California about $50 million in grants over three years to analyze evidence from crimes that had a sexual component, but lacked a suspect. The San Francisco lab used much of its $2 million share to hire four new criminalists in 2002, said Cydne Holt, the lab’s senior criminalist and DNA technical manager. It was probably the first time the crime lab had added new employees in 10 years, she added. The four criminalists worked exclusively on cold hits until October when the grant funding period ended. The city has since kept them on with its three other DNA criminalists; all seven are now working on the city’s new criminal cases as well as the cold hits, Holt said. Of the roughly 600 cases in the cold hit program so far, Holt estimates there is enough evidence in 420 of them to create DNA profiles to add to databases. On top of the 34 cold hits already made, Holt predicts the crime lab, if rates stay consistent, will make 65 more by January. Even more matches could be made as DNA profiles are added to databases across the country, she added. And more cases without a suspect will come down the pike that could be added to the cold hit program. Cold hit testing, Holt said, “is now going to be part of our everyday set of tools.” But some cold hits may never lead to prosecutions. A DNA profile may match an unsolved case that isn’t linked to a suspect. Or a suspect may have died. Still, the lab’s expanding DNA staff has had a trickle-down effect at the public defender’s and district attorney’s offices. By last week, San Francisco’s cold hits had led to charges in four homicides and at least six sexual assaults, according to the DA’s office, though charges in one of the latter had been dropped. Both DA Kamala Harris and PD Jeff Adachi, in their requests for bigger budgets next year, are seeking relief specifically for cold hit cases. On top of adding to normal caseloads, cold hit cases involve heavy-duty science and are almost sure to go to trial, lawyers say. Estimating that DNA experts cost $10,000 to $25,000 per case, Adachi wants more money for expert witnesses. Prompted by the expected influx of cold hits, Adachi also wants money to hire three lawyers, two investigators and a paralegal so he can create a unit dedicated to homicides. And he hopes to develop more DNA expertise among his deputies, he said. DNA evidence in cold hit cases puts the defense “in a position of having to attack scientific evidence that a lay person would consider irrefutable,” said Deputy Public Defender Frank Brass. “You have to know the science better than the experts do [to understand] how the science is vulnerable,” Adachi says, pointing to the skill famed DNA specialist Barry Scheck brought to O.J. Simpson’s counsel table. The DA’s office currently is prosecuting a total of about 70 murders, and James Hammer — who until last week was the assistant DA in charge of homicides –estimates the office files charges at a rate of 20 to 25 homicide cases a year. While maybe 10 to 20 percent of homicide cases end without a trial, Hammer said, he expects nearly all cold hit murder cases to go to verdict. “It’s not a voluntary manslaughter,” he said. “It’s either a rape-murder in all these cases, or it’s not.” DA Harris estimates her office will receive about 140 cold hits to evaluate for possible prosecution in the next year to 18 months. “There’s absolutely no way we can absorb that caseload,” Harris said. “We’re already understaffed.” Harris says she needs 10 to 14 more lawyers to handle the expected influx of cold hit cases. She eventually hopes to create a unit of several lawyers responsible for cold hit and possibly other DNA cases. One of the shortcomings of the state grant was that it only provided money to the labs and “not to the DAs, the police or public defenders,” said Rock Harmon, who coordinates cold hit cases for the Alameda County district attorney. “To not supplement � the other parts of the system was pretty shortsighted.” Defense attorneys and prosecutors alike are grappling with the difficulty of investigating cold hits. Decades after the crime, it can be challenging to locate evidence and witnesses. Even when witnesses are found, sometimes their memories are faded. “It’s almost impossible to investigate a 20-year-old case,” said PD Adachi. “How does the defendant himself remember how something went down, let alone produce corroborating information?” said Deputy PD Brass. Alameda’s Harmon recalls one prosecution for a 1974 murder. The homicide investigator had interviewed the suspect early on, but by the time DNA evidence linked the person to the crime, the investigator had died and left no tape recording, Harmon said. “It’s a problem for both sides.” “There’s a bit of archeology involved in this,” said Hammer, the former assistant DA. “Reconstructing how the evidence was taken, how it was stored, how it was handled, that sort of thing, is going back in a time machine. “You’re not going to have Doc Stephens say, �Six months ago I was there and did the autopsy and this is what I pulled out,’” Hammer said, referring to Boyd Stephens, the current chief medical examiner. The oldest cold hit murder charged in San Francisco took place in 1968. Defense attorneys seem poised to pounce on evidence handling. Contamination, says Adachi, is “going to be a major issue.” For prosecutors with a DNA match in hand, corroborating evidence may not be mandatory, but it’s good to have, said Sacramento Deputy DA Anne Marie Schubert. For example, proof a defendant lived near a victim, or had prior access, could help refute a defense theory that the DNA evidence shouldn’t be trusted, or that the sex was consensual “and somebody else came along and killed her.” Cold-hit sexual assault cases don’t go back as far as the murders, which have no statute of limitations. The crime lab is analyzing evidence for sexual assault cases back to 1995. But the passage of time can still present a hurdle. Prosecutors are unlikely to charge a sexual assault case if the victim can’t be found, or has died. Unless former testimony was preserved, which would be unlikely in such cases, “you need a complaining witness,” said Beckelman, a San Francisco homicide prosecutor who previously headed the DA’s sexual assault unit. “We might know a crime was committed, but unless we can convict beyond a reasonable doubt, we can’t file a charge.” The DA’s office already dropped one of the cold-hit sexual assault cases it filed because the victim had made changes in her life and didn’t want to pursue the case, said Assistant DA Adrian Ivancevich, head of the sexual assault unit. Some lawyers also envision legal issues that might not come up in trial for more recent crimes. Schubert questions what might happen if a witness who made a significant statement at the time of the crime can no longer remember what happened. “Are there exceptions to the hearsay rule?” Or if the suspect was a juvenile at the time of the crime, she added, there could be debate on how to try them. Nonetheless, prosecutors and police have applauded the cold hit program for putting a dent in unsolved crimes and, in some cases, keeping what they call dangerous repeat offenders in custody. The DA’s office notes that in two of its cold hit murder cases, arrest warrants were issued within two weeks before the suspects’ scheduled release from prison. Under California law, felons convicted of certain offenses have their DNA profiles added to the database; such requirements vary from state to state. “The suspects in these cases are people who tend to be recidivists,” said Harris. “So there’s an urgency.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.