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A career prosecutor and former police officer is set to teach a course in DNA technology at Hofstra University School of Law next spring, which he believes to be the first concentrated instruction of its kind in the nation. Robert P. Biancavilla, of the government corruption unit in the Suffolk County District Attorney’s Office, is a longtime adjunct professor at Hofstra Law who has lectured nationally on DNA topics. He hopes his 14-week, two-credit course will inspire a new generation of lawyers – especially prosecutors – to fully embrace what he calls “the most powerful crime-fighting tool since fingerprints.” Mr. Biancavilla’s hope runs parallel to a continuing debate among prosecutors across the country who generally acknowledge the reliability of DNA testing but resist the notion that it proves innocence in the presence of other incriminating evidence. “The only time you hear about DNA in the media is when an exoneration is done,” said Mr. Biancavilla, who served under Eliot Spitzer in the New York State Attorney General’s Office as second in command at the Organized Crime Task Force. “But there’s a whole other side. This forensic tool can be used by prosecutors and police investigators to solve some very, very difficult cases that 10 years ago would have gone unsolved.” Other players in the criminal law academy – including Barry C. Scheck and Peter J. Neufeld, co-founders of The Innocence Project at the Benjamin N. Cardozo School of Law, and Jeremy Travis, president of John Jay College of Criminal Justice – have likewise advocated greater use of DNA technology by prosecutors and police. Two matters at point in which Mr. Biancavilla was personally involved: • As an assistant district attorney in Nassau County in the 1980s, he handled a home invasion case in which a woman was raped. The case went unsolved for two years, until police got a line on a potential suspect in the county jail who declined a voluntary DNA test. After the inmate’s release, Mr. Biancavilla subpoenaed the jail for the contents of his trash can, which yielded a toothbrush and led to a close but inconclusive DNA match. The DNA lab asked if the suspect might have a brother. “We surreptitiously obtained a DNA sample from the brother,” said Mr. Biancavilla, “and – bingo! – we had our rapist.” • In the September 2000 matter of People v. Klinger, 713 N.Y.S. 2d 823, Mr. Biancavilla prevailed in a precedent-setting appellate hearing on a rape case centering on the admissability of mitochondrial DNA, specifically a nanogram of forensic evidence. The result was a 15-year prison term for the defendant, convicted in 1998. In his lectures, Mr. Biancavilla says of the two basic types of DNA samples, nuclear and mitochondrial, “In my first DNA course back in ’89, we needed a [nuclear] sample about the size of a quarter. Now we can have a [mitochondrial] nanogram of evidence.” To explain further, he offered the analogies of an egg and a sugar substitute. “The yolk has the nuclear cells, the white all around has the mitochondrial cells,” he said. “Now think of a packet of Sweet’n Lo. Divide the packet by a billion. That’s your nanograms.” These “basic scientific and mathematical principles and how to apply them,” he said, are “nothing new within the scientific community, it’s just relatively new to the forensic community.” As such, Mr. Biancavilla calls his course “DNA Unraveled: Demystifying Forensic DNA Evidence.” “There’s an old joke about lawyers,” said Mr. Biancavilla. “If we’d been good at math and science we would have become doctors. When you talk to lawyers about math and science, you do see the eyes glaze over. But really, people shouldn’t be afraid to learn this.” Some Resistance Personalities and politics within prosecutors’ offices, however, continue to resist DNA as the implacable ultimate in forensic science as applied to the question of innocence. In Florida, for instance, the state Legislature shut the door on DNA testing involving old cases. Since October 2003, prisoners have not been permitted to apply for DNA tests that might establish innocence. Prosecutors there told lawmakers that post-conviction DNA testing in two high-profile cases, in which prisoners were eliminated as murderers on the basis of comparative hair and semen samples, did not establish their innocence in light of compelling circumstantial and eyewitness evidence. Both defendants remain behind bars serving life sentences. Messrs. Scheck and Neufeld said prosecutors in New York and Illinois – as well as some prosecutors in Texas – generally accept DNA testing as routine, in the interest of helping to establish either guilt or innocence. But they complain of resistance, sometimes fiercely so, from prosecutors in Alabama, Arkansas, Colorado, Louisiana, Michigan, Mississippi and New Mexico. For his part, Mr. Travis established the Center on Modern Forensic Practice at John Jay, which since last year has provided neutral ground where members of the sometimes disputatious cultures of science, police and prosecution and the criminal defense bar can inform one another. “These are worlds that don’t often talk to each other,” said Mr. Travis, who as a deputy to former U.S. Attorney General Janet Reno during the Clinton administration authored the landmark 1996 study entitled “Convicted by Juries, Exonerated by Science: The Post Conviction DNA Cases.” Prior to serving under Ms. Reno, Mr. Travis was deputy commissioner for legal matters at the New York Police Department. “What we should all be working toward is a public awareness of this tremendous technology as a means of promoting public safety,” said Mr. Biancavilla. “DNA can serve to hold people responsible for crimes, as surely as it can help prevent people from being put into the system who don’t belong there.” Mr. Biancavilla notes that advances in DNA technology have come about in large measure due to research funding through the Federal Bureau of Investigation, which itself incorporated DNA testing into criminal investigations in 1988. State crime laboratories soon followed the FBI model, leading to a state-federal linkage through the Combined DNA Index System, an integrated law enforcement databank of DNA records. The system was formally authorized by Congress in 1994, and officially launched in 1998. John Doe Warrants One of the most powerful ways DNA technology can aid the cause of public safety, Mr. Biancavilla noted, is the relatively new technique of John Doe warrants, in which grand juries may issue indictments on the basis of genetic codes in place of names. Should the criminal be arrested in some unrelated matter and a DNA match produced, a rapist or killer who might have gotten away with his or her crime may now meet justice by way of an outstanding John Doe warrant. An area of disagreement between some prosecutors and perhaps most defense lawyers, said Mr. Biancavilla, is the matter of routine collection of DNA profiles. “A profile should be taken from every person arrested for a crime, the same way you take their fingerprints,” he said. “Just imagine the potential.” But the Genetics and Public Policy Center of Washington, D.C., an independent think tank on matters of genetic technology and public policy, takes issue with such comparison. “DNA profiles are different from fingerprints, which are useful only for identification,” according to a paper by the genetics center. “DNA can provide insights into many intimate aspects of a person and their families, including susceptibility to particular diseases, legitimacy of birth, and perhaps predispositions to certain behaviors and sexual orientation. This increases the potential for genetic discrimination by government, insurers, employers, schools, banks, and others.” Thomas Adcock can be reached at [email protected].

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