Thank you for sharing!

Your article was successfully shared with the contacts you provided.
For defense lawyers, going up against DNA evidence is never easy. “Juries love it,” says Deputy Public Defender Martin Sabelli, whose client David Hill, accused of killing a San Francisco police officer earlier this year, faces DNA evidence in his case. And many attorneys note the science can seem daunting, particularly to the uninitiated. In August, San Francisco Public Defender Jeff Adachi took a step to give his deputies a leg up, hiring Bicka Barlow, a scientist-turned-defense lawyer, to act as the office’s DNA guru. “In this day and age, DNA evidence is a large part of the homicide practice as well as sexual assault cases,” Adachi said. “It is almost malpractice to not have a fairly firm understanding of the science.” The arrival of Barlow, a deputy public defender, hasn’t gone unnoticed across the street, where prosecutors say deputy PDs have been asking for more discovery lately. “We’ve seen a complete change,” said homicide prosecutor Elliot Beckelman, anticipating some major discovery battles on the horizon. A decade ago, the public defender might have seen a couple of DNA cases a year, Adachi said. Now, he estimates his deputies get 20 to 25 new ones annually. Former Deputy Public Defender Michael Burt, a death penalty defense attorney, was considered the resident expert on DNA evidence until he left in early 2003. And for years, the office has had lawyers with enough experience to handle the work, Adachi said. But as the number of DNA cases has gone up, he says it’s becoming more important to have an in-house specialist to consult with his deputies and train those who haven’t worked with DNA before. Barlow, who has undergraduate and master’s degrees in genetics from UC-Berkeley and Cornell University, was an environmental consultant before she decided to go to the University of San Francisco School of Law. Of the roughly nine years she’s spent in private practice, much of the last three have focused on DNA cases. Deputy Public Defender Mark Iverson has handled about half a dozen DNA cases. Though most were relatively straightforward, one involved a lot of litigation over the DNA evidence, with a so-called Kelly-Frye hearing to argue over the admissibility, he said. But despite his experience, Iverson is having Barlow review discovery for two of his cases now, a murder and an aggravated kidnap-rape. “I’m reading it and trying to understand it, and about the fifth time I’m getting more than I am the fourth time.” He added, “I’m hoping that [she] will help me understand, when it’s a mixture of DNA profiles, what are the problems in those situations.” When she’s wearing her consulting hat, Barlow says, she’s trying to help identify issues that might come into play at trial or in Kelly-Frye hearings. And she’s suggesting experts or strategies to pursue. For starters, she’s been encouraging some deputies to ask for more information in the discovery phase, saying the standard discovery isn’t enough “in certain cases,” pointing to one private attorney’s experience as a model. San Francisco solo David Wise wanted to look at audits, reliability studies and other records from the local crime lab that he hopes will help challenge the reliability of its testing procedures. San Francisco Superior Court Judge Mary Morgan granted his discovery request in an armed robbery case last month. Similarly, Sabelli, the defense lawyer in the Hill case, is asking for extra evidence on internal procedures at the San Francisco Crime Lab. (Though he launched his discovery efforts before Barlow arrived, he said she’s helping him now, though the extent of her role in the case is still being worked out.) According to Paul Cummins, a prosecutor on that case, DNA reports show that an AK-47 found “a short distance away” from the crime scene and clothing allegedly shed by the shooter have Hill’s DNA on them. Sabelli says he has “concerns about the reliability of their tests,” and the possibility of contamination. Cummins contends Sabelli’s discovery request is overbroad, and the information he’s requesting irrelevant. Judge Philip Moscone is scheduled to hold a hearing on the discovery dispute Nov. 9. “We in San Francisco already give much more information in discovery than any other jurisdiction,” and the DA’s handed over all of the case-specific information, Cummins said. Sabelli is asking for things like records of trouble-shooting in other cases, Cummins said. He notes that the DA’s office has seen a number of similar requests out of Adachi’s office recently. “To provide these in each and every case, it’s very time-consuming and labor intensive,” Cummins said. At the DA’s office, there’s currently a core group of prosecutors who are most familiar with DNA, though more and more prosecutors are working with it, Beckelman said. But if the public defender puts out an “organized front” to challenge reliability, he said, the DA may have to assign one or two people to focus on the discovery battles. “If there’s going to be a challenge about the lab or the science, we’re not going to limit it to having attorneys handle it on a case-by-case basis,” he said. “Instead of using DNA to convict the guilty and exonerate the falsely accused, we’re going to end up having these admissibility battles,” he predicts, noting that the same lab does tests for the Innocence Project. “And we’re going to have to divert resources in order to make sure we don’t have � these wasteful, costly fights over discovery.” The job description for Barlow’s roughly $100,000-a-year post is still a work in progress. In addition to the consulting and training, she says she may assist other deputies at their trials, or step in to handle Kelly-Frye hearings, where presentations tend to be more technical. Adachi says Barlow will surely shoulder some of the cases in his office, but he’s not sure if she’ll carry a full or reduced caseload of her own yet. She’s currently assigned to fill in for other attorneys in court. Most district attorney’s and public defender’s offices probably have a “go-to person” for DNA, said Lisa Kahn, who’s filled those shoes in the Los Angeles DA’s office since the late 1980s. “Most of us went to law school,” she said she tells her training classes, “because we didn’t do particularly well in math or science.” As her district attorney’s “forensic science adviser,” Kahn says her role is probably more formal than most. In many counties, she said, the same shoes may be filled informally by “that guy over there in the homicide unit.”

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.