Sunday, December 7, 2014

Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law

Buza I
For the reasons we have set forth, we conclude that the DNA Act ... unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution.
Buza II
For the reasons we have set forth, we conclude that the DNA Act ... unreasonably intrudes on such arrestees’ expectation of privacy and is invalid under article I, section 13, of the [California] Constitution.

Nearly seven years ago, Mark Buza set a San Francisco police car on fire to protest what he said was a corrupt government. Spotted running from the burning car, he was promptly arrested and brought to the county jail. There, he engaged in a second act of defiance, refusing to allow police to swab the inside of his cheeks to acquire a DNA sample. (He did, however, acquiesce in fingerprinting and writing a signature.) After his conviction for arson-related crimes as well as the separate offense of refusing to submit to DNA sampling, a court ordered him to give a sample before sentencing. In a third act of resistance, he refused, but when the court issued a further order allowing police to use force, he finally submitted to the swabbing. His DNA profile entered the California database, apparently without incriminating him in any other crimes.

The California Court of Appeal reversed the conviction for resisting “the seizure of his DNA at a time when he was entitled to the presumption of innocence, and [when] there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested ... .” California's DNA-collection law, the court reasoned, “violated his Fourth Amendment right to be free from unreasonable searches and seizures.” The court expressly declined to consider whether compelling DNA collection before a judicial finding of probable cause violated Buza’s “right to privacy under article I, section 1, of the California Constitution.”

The California Supreme Court granted review, vacated the appellate court’s judgment, and ordered that court to reconsider its reversal of the DNA-refusal conviction in light of the United States Supreme Court’s decision in Maryland v. King, 133 S.Ct. 1958 (2013).

In a lengthy opinion issued four days ago, the Court of Appeal, like Buza himself, stuck to its guns. For a second time, it held that the California initiative that mandates DNA sampling on arrest (and that has been upheld by several other courts) is unconstitutional. However, the court shifted ground. Now Presiding Justice Anthony Kline wrote: “we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.” (Emphasis added.)

I’ll leave it to California’s bar, bench, and scholars to debate how and why the Court of Appeal can be so certain that California’s constitution, which essentially reproduces the words of the Fourth Amendment, compels a different result than King might warrant. Here, I want to consider the Court of Appeal's analysis of the outcome that should follow under the U.S. Constitution as construed in King.

More to come ...

Closely related postings

Thursday, October 30, 2014

Another Disgusting DNA Case: Please Flush!

A quick update to the disgusting DNA report of last March (The Whooper Stopper). Following up on a report from KOAT-TV in Albuquerque, the Associated Press reported that a man helped himself to $250,000 worth of jewelry from a home while the owners were on vacation and neglected to flush whatever he left behind in the toilet. Is there is a lesson to criminalists here: swab toilet seats and handles to catch more considerate burglars as well?

Far more offensive is a case reported by the same TV station in 2011. It seems that a 31-year-old Sunflower Market employee offered a woman what he said was a free yogurt sample. Incredibly, it was his semen. After pleading guilty, he was sentenced to a two-year prison term.

Tuesday, October 7, 2014

The Supreme Sound of Silence: Same-Sex Marriage and DNA Databases

The big news among Supreme Court watchers is the big dog that did not bark in the night — the Court’s denial of petitions for certiorari in seven cases striking down bans on same-sex marriage in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. [1] A denial of a cert petition has no precedential value. It does not mean that the Court approves of the decision below—or that it disapproves of it. It means that, for unstated and often banal reasons (the Court receives some 10,000 petitions a year [4]), no more than three Justices voted in favor of review the decision below. (By convention, it takes four votes to grant the writ that triggers the Court’s review of the case on the merits.)

The Court watchers are treating the rejection of the writs here as a “tacit win to gay marriage” on the theory that it means that if and when the Court chooses to confront the issue, a majority of states will have sanctioned same-sex marriage, making it more likely that the Court will accept the argument that the Constitution forbids limiting the institution of marriage to couples of the opposite sex. [3]

This predicted dynamic was evident in the Court’s handling of laws requiring routine DNA collection for law enforcement databases. No appellate court ever struck down a law requiring convicted offenders to provide samples, and for some thirty years, the Court invariably denied petitions for review in those cases. Only after Maryland’s highest court essentially invalidated that state’s law providing for DNA collection on arrest did the Supreme Court step in. By that time, every state had a DNA database for convicted offenders, and a majority had extended them to require pre-conviction DNA sampling. Every state signed an amicus brief urging the Court to uphold the practice. The Court split 5–4 on the constitutionality of pre-conviction DNA testing. Had the states and the federal executive branch not presented so unified a front in favor of expansive DNA collection, the outcome could have been different. [2]

  1. Amy Howe, Today’s Orders: Same-sex Marriage Petitions Denied, SCOTUSblog, Oct. 6, 2014, 10:41 AM,
  2. David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014), available at
  3. Adam Liptak, Supreme Court Delivers Tacit Win to Gay Marriage, N.Y. Times, Oct. 7, 2014, at A1,
  4. Robert M. Yablon, Justice Sotomayor and the Supreme Court’s Certiorari Process, 123 Yale L.J. F. 551 (2014), /forum/justice-sotomayor-and-the-supreme-courts-certiorari-process.html

Tuesday, September 30, 2014

Bayes in Our Times

Today's New York Times has an article on "a once obscure field known as Bayesian statistics."1/ It is an informative piece by Faye Flam, a science journalist with an uncommonly good grasp of science. But a quantum of confusion infects the effort to contrast "Bayesian statistics" with "the more traditional or 'classical' approach, known as frequentist statistics."

The article presents the solution to famous Monty Hall problem (known to "classical" probabilists as the three-curtains problem long before its appearance in the TV game show) as especially amenable to "Bayesian statistics." But frequentist thinking works quite well here. In the long run, the strategy of switching beats the strategy of not switching. This is easily proved with classical, objective probabilities.

Indeed, it is not clear that the Monty Hall problem is even a problem in statistical inference.2/ There are no statistical (sample) data to consider and no sense in which the use of Bayes' rule to solve the probability problem "counter[s] pure objectivity." How, then, do "[t]he two methods approach the same problem[] from different angles"?

Of course, the Monty Hall problem is nice for illustrating the power of Bayes' rule in working with conditional probabilities. I have used it in this way in my courses, and that may have been the reason it appears in the article. But it does not illustrate the philosophical divide between frequentists and Bayesians.

To this extent, it is disappointing that the Times (but probably not the author) chose to start the online version of the article with a large photograph of Monty Hall captioned "Bayesian statistics can help solve the Monty Hall problem of winning a car." It would have been equally accurate to report that "Frequentist statistics can help solve the Monty Hall problem of winning a car." But that is is hardly news fit to print.


1.Faye D. Flam, The Odds, Continually Updated, N.Y. Times, Sept. 30, 2014, at D1.

2. On the distinction between a "problem of statistical inference or, more simply, a statistics problem," and a probability problem, see, for example, Morris H. DeGroot, Probability and Statistics 257 (1975).

Sunday, August 31, 2014

Hazard Ratios and Heart Failure

Today’s big news in medicine is a new drug, designated LCZ696 by its manufacturer, Novartis. According to the New York Times, LCZ696 “has shown a striking efficacy in prolonging the lives of people with heart failure and could replace what has been the bedrock treatment for more than 20 years.” [1] Specifically, more than 8,400 patients in 47 countries enrolled in a randomized, double-blind experiment in which they received either LCZ696 or an ACE inhibitor called enalapril (in addition to whatever else their doctors prescribed).

The trial was halted after a median follow-up time of 27 months “ because the boundary for an overwhelming benefit with LCZ696 had been crossed.” [2] “By that point, 21.8 percent of those who received LCZ696 had died from a cardiovascular cause or had been hospitalized for worsening heart failure. That figure was 26.5 percent for those receiving enalapril. That represents a 20 percent relative reduction in risk using a statistical measure called the hazard ratio.” [1]

This is good news for patients (if the drug receives regulatory approval and performs as expected in practice). But the account in the Times poses a small statistical puzzle. How does the difference between 21.8 and 26.5 percentage points translate into “a 20 percent relative reduction in risk”? The average risk across patients dropped by 26.5 – 21.8 = 4.7 percentage points. This absolute reduction is appreciable, but 4.7 percentage points is not 20% of the original 26.5 percent risk of hospitalizations or deaths in the control group (4.7 / 26.5 = 17.7%). What accounts for the discrepancy?

The answer lies in the details of a technique known in biostatistics as survival analysis. The statistical technique is not limited to the analysis of death rates. It can be applied to all sorts of situations involving different times to some outcome. The outcome can be the overruling of a Supreme Court case, the firing of a worker, or the exoneration of a prison inmate sentenced to die, to pick a few examples from forensic statistics.

So what does the 20% “relative reduction in risk” cited in the Times article mean? Well, a hazard function is the probability that if you survive to a given time t (the event in question has not already occurred), you will survive in the next instant. A hazard ratio is the ratio of the hazard in the treatment group to the hazard in the control group at t. The heart failure study used an estimation procedure known as proportional hazards regression, which assumes that the hazard in one group is a constant proportion of the hazard in the other group. Under this assumption, in a clinical trial where death is the endpoint, the hazard ratio indicates the relative likelihood of death in treated versus control subjects at any given point in time.

Thus, unlike the ordinary relative risk discussed in many court opinions, the “hazard ratio” is not simply the proportion with a disease in an exposed group divided by the proportion in an unexposed group. In the LCZ696 study, the hazard ratio was 0.80, meaning that the probability that a randomly selected patient taking LCZ696 would die from or be hospitalized for heart failure the next day is 80% of the probability for a randomly selected patient taking enalapril. To put it another way, the probability of hospitalization or death tomorrow from heart failure drops by 20% when LCZ696 is substituted for enalapril.

Yet a third formulation is that the odds that a randomly selected patient treated with LCZ696 will be hospitalized or die sooner than a randomly selected control patient are 0.8 (to 1) — that's 4 to 5, corresponding to a probability of 4/9 = 44%. [3]

How long either patient can expect to live and avoid hospitalization from heart failure is another story. As one article on hazard ratios explains, “[t]he difference between hazard-based and time-based measures is analogous to the odds of winning a race and the margin of victory.” [3] By itself, the hazard ratio picks the winning horse (probably), but it does not give the number of lengths for its expected success.

  1. Andrew Pollack, New Novartis Drug Effective in Treating Heart Failure, N.Y. Times, Aug.31, 2014, at A4
  2. John J.V. McMurray et al., Angiotensin–Neprilysin Inhibition versus Enalapril in Heart Failure, New Engl. J. Med., Aug. 30, 2014
  3. Spotswood L. Spruance et al., Hazard Ratio in Clinical Trials, 48 Antimicrobial Agents and Chemotherapy 2787 (2004)

Thursday, July 31, 2014

The FBI's Worst Hair Days

An article by Spencer Hsu in yesterday's Washington Post suggests that the FBI lost a tug of war within the Justice Department. In 2012, the Bureau commenced a comprehensive review of the testimony of FBI hair analysts about matches to defendants in criminal cases before 2000. In those pre-DNA-evidence days, microscopic hair comparisons were valuable for seeing whether a suspect could be the source of a hair at a crime scene. (They still are, but the FBI now uses mitochondrial DNA testing to demonstrate a positive association and relies on visual comparison to screen out nonmatching hairs.)

Clearly, an inclusion—that is, two hairs with a similar set of features—was never definitive. Even hairs from the same individual vary in certain respects. But hairs from the same individual are more likely to "match" than hairs from different individuals. Thus, a careful hair analyst should have reported a negative finding as an exclusion and a positive finding with words like "not excluded," "could have," "consistent with," or "match, but."

After it became apparent that the FBI’s analysts were not always being this careful, the Department of Justice agreed to “identify[] historical cases for review where a microscopic hair examination conducted by the FBI was among the evidence in a case that resulted in a conviction ... with the goal of reaching final determinations in the coming months.” That was 2012. The Post article reports that in 2013, the FBI stopped the reviews. It started them back up this month, on orders from the Deputy Attorney General.

The FBI attributes the delay, in part, to “a vigorous debate that occurred within the FBI and DOJ about the appropriate scientific standards we should apply when reviewing FBI lab examiner testimony — many years after the fact.” To get a sense of what this debate might have been about, it may be useful to examine the two specific cases mentioned in the Post article on “forensic errors.”

The Exoneration of Santae Tribble

The article includes an imposing photograph of Santae A. Tribble. The caption explains that Tribble, who was convicted in Washington, D.C., at age 17, “spent 28 years in prison based largely on analysis of hairs found at the scene of a taxi driver’s murder in 1978. More advanced DNA testing showed that none of the hairs used as evidence shared Tribble’s genetic profile. A judge has vacated his conviction and dismissed the underlying charges.”

There is no denying that evidence suggesting that an innocent man is guilty is erroneous, but is it a laboratory error? Some people argue that microscopic hair evidence is unvalidated and because it sometimes incriminates innocent people, it should be inadmissible. But if that is correct, why go through the trouble of reviewing all the cases? The FBI could just send out letters in every case saying that the laboratory no longer stands by the unvalidated testimony its examiners gave.

Surely there was (and is) some useful information in microscopic hair comparisons. A 2002 FBI study showed that DNA testing confirmed most visual microscopic associations (almost 90%) on a sample of hairs from casework. For a small minority of hair comparisons—as in Mr. Tribble’s case—microscopy produced false positives.The specificity of the technique—like that of drug tests, tests for strep throat, and so many other things—is not 100%.

Inasmuch as all hair comparisons cannot summarily be dismissed as invalid, what makes the comparison in the Tribble case a departure from the FBI calls “appropriate scientific standards”? An article from the National Association of Criminal Defense Lawyers (NACDL), which is cooperating in the process of reviewing the cases, describes the criteria as follows:
Error Type 1: The examiner stated or implied that the evidentiary hair could be associated with a specific individual to the exclusion of all others.

Error Type 2: The examiner assigned to the positive association a statistical weight or probability or provided a likelihood that the questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of the positive association that could lead the jury to believe that valid statistical weight can be assigned to a microscopic hair association.

Error Type 3: The examiner cites the number of cases or hair analyses worked in the lab and the number of samples from different individuals that could not be distinguished from one another as a predictive value to bolster the conclusion that a hair belongs to a specific individual.
Which of these errors did the FBI laboratory commit in Mr. Tribble’s case? According to an earlier Post article on the case, “A police dog found a stocking on a sidewalk a block away [from the victim’s body]. Months later, the FBI would report that a single hair inside it matched Tribble’s ‘in all microscopic characteristics.’” Ideally, the analyst would have added that hair from other people also could have matched, or, at the least, defense counsel should have elicited this fact on cross-examination.

No such significant qualifications or caveats emerged. Instead, according to the Innocence Project, the FBI analyst "testified that one of the hairs from the stocking mask linked Tribble to the crime." The National Registry of Exonerations reports that he "said ... the hair in the stocking came from Tribble." Such testimony seems to be an "Error Type 1," although it is not clear from these descriptions whether the "link" was explicitly "to the exclusion of all others."

The latter phrase was extremely popular among analysts of impression and patterns (like fingerprints and toolmarks) who believed that their disciple studies characteristics that can exist in their particulars in only one object in the universe. Of course, the words "to the exclusion" are logically redundant. If the analyst believed that "the hair ... came from Tribble," then he must have believed that it did not come from anyone else. But one can believe that a named individual is the source of a trace (because that is the most likely conclusion) without believing it is impossible for anyone else to have been the source (which is, I think, is what "to the exclusion" was supposed to mean).

Thus, there is an ambiguity in the meaning of an "Error Type 1." How explicit must the analyst be in excluding all other individuals as contributors of the hair? The NACLD's description of the criteria indicates that a literal use of the phrase is not critical. The article illustrates the error with the following, hypothetical testimony:
I found brown, Caucasian head hairs on two items of clothing, the sports coat, and a pair of slacks that were reported to me as belonging to (the defendant). Now, these hairs matched in every observable microscopic characteristic to that known hair sample of DEC (the decedent) and consistent with having originated from her. In my opinion, based on my experience in the laboratory and having done 16,000 hair examinations, my opinion is that those hairs came from DEC.
But regardless of whether Tribble's trial testimony included an "Error Type 1" as the FBI has defined the errors, it was excessive. The analyst should have stuck to reporting the results of the comparison and not made a source attribution.

In addition to the analyst's overstated testimony, the prosecutor came vanishingly close to making the “Error Type 2.” He argued in closing that “There is one chance, perhaps for all we know, in 10 million that it could [be] someone else’s hair.

In the end, however, what exonerated Tribble was not the recognition of the hyperbole of the expert and the prosecutor, but the proof from a DNA test that the hair on the stocking probably worn by the actual murderer was not his.

The Conviction of John Duckett

The second case of "forensic error" discussed in the Post article is the trial of James Duckett, a former police officer in Florida. The Post article cites this case as an example of “the continued inadequacy of officials’ response.”

Duckett was convicted and sentenced to death for sexually assaulting, strangling, and drowning an 11-year-old girl. Unlike Tribble, Duckett has not proved actual innocence. Without such proof, even a letter from the FBI disowning some parts of the testimony in the case may not be a get-out-of-jail card.

The analyst in the case was the now notorious Michael Malone. The Post notes that Malone was "discredited in a 1997 inspector general’s report on misconduct at the FBI lab." This report came about nine years after Duckett's conviction, and Duckett made sure the Florida courts heard about it. At the center of Duckett's latest postconviction motion was a report from an expert who had been hired by the FBI in response to the first OIG report to "review[] many cases—particularly death penalty cases—in which Malone offered expert testimony." This expert was sharply critical of Malone's documentation of his work and the unsupportable "degree of analytical certainty" with which Malone testified about the hairs in Duckett's case.

Would a speedier review on the FBI's part have made a difference? I doubt it and have juxtaposed some of the Post’s description of the case with the court’s to indicate why.

Duckett, then a rookie police officer in Mascotte, Fla., was convicted of raping and strangling Teresa McAbee, 11, and dumping her into a lake in 1987.

... Malone ... testified at trial that there was a “high degree of probability” that the hair came from Duckett.

Such testimony is scientifically invalid, according to the parameters of the current FBI review, because it claims to associate a hair with a single person “to the exclusion of all others.”

The Florida court denied Duckett’s request for a new hearing on Malone’s hair match. The court noted that there was other evidence of Duckett’s guilt and that the FBI had not entirely abandoned visual hair comparison.

Malone also explained that hair analysis is not as precise as fingerprints for identifying someone. Malone expressly stated that he could not say that a particular hair came from a specific person to the exclusion of anyone else.

(1) [T]he victim was last seen in Duckett's patrol car; (2) the tire tracks at the murder scene were consistent with those from Duckett's car; (3) no one saw Duckett, the only policeman on duty in Mascotte, from the time he was last seen with the victim until the time he met the victim's mother at the police station; (4) numerous prints of the victim were found on the hood of Duckett's patrol car, although he denied seeing her on the hood; (5) a pubic hair found in the victim's underpants was consistent with Duckett's pubic hair and inconsistent with the others in contact with the victim that evening; and, (6) during a five-month period, Duckett, contrary to department policy, had picked up three young women in his patrol car while on duty and engaged in sexual activity with one and made sexual advances toward the other two.

Of course, the arguably redeeming parts of Malone's testimony and the state's other evidence of guilt do not condone or excuse any foot dragging by the FBI, but they do indicate the complexities that can arise in untangling the consequences of analysts' overstated testimony.


Tuesday, July 29, 2014

A Long Shot Pays Off in Long Island

A family member shouted “we love you” as police took John Bittrolff back to jail. A court in Long Island had just ordered him held without bail on charges of murdering two women over 20 years ago. “Some arrests take a few hours, some days; some take 20 years,” Suffolk County Police Commissioner Edward Webber told reporters.

If police have the killer, it is a success for “familial searching” — the practice of trawling a database for near misses that are especially likely to arise when the source of traces of DNA recovered from crime scenes or victims are very close relatives of one of the “inhabitants” of the database — convicted offenders or, increasingly, arrestees.

Mr. Bittrolff’s DNA profile was not in the New York database. (He had been arrested, but not convicted, for assault in 1993.) However, last year, his brother, Timothy, had been required to give a sample of DNA after a conviction for violating protective orders. DNA from semen found inside the bodies of both women pointed to a brother of Timothy as the source of that semen. But the two victims were said to have been prostitutes, and Mr. Bittrolff’s counsel have been quick to note that "having sex does not mean killing."

In addition to adding to the modest number of possibly successful “outer directed” database trawls, the case is interesting for some procedural twists involving the acquisition of DNA samples. As in the California “grim sleeper” case, police did not initially seek a court order for a sample of their suspect’s DNA to verify that he was indeed associated with the victim’s bodies. Instead, detectives helped themselves to paper bags of garbage left in front of John Bittrolff's house. Among the plastic cups, drink bottles, toothpicks, straws, crawfish heads, cotton swabs, and bandages, they found DNA from his sons, his brother, and his wife (who they trailed until they collected a cigarette butt that she tossed from the window of her truck while driving to work). And, on one paper cup, they found a DNA profile that matched the semen.

But the police were not satisfied. They arrested wiped DNA from a cup of water John Bittrolff drank after his arrest. And even that was not enough. The assistant district attorney (ADA) then applied for a court order to force the twice-DNA-matched suspect to submit to DNA sampling.

Defense lawyers objected that a third sample from Mr. Bittrolff was manifestly unnecessary. The ADA’s response was that prosecutors are entitled to a "judicially approved" DNA sample to present to a grand jury. The court issued the order, and that is where the case stands as of now.

I cannot say that I understand the prosecutor’s reasoning. Unless New York grand jury procedure is very different from the norm, a prosecutor can introduce all manner of evidence without judicial approval. Grand jurors can even rely on unconstitutionally seized evidence without offending the Fourth Amendment.

Was the ADA looking ahead to the trial? Would he want to avoid having to explain the artifices — the “familial searching,” the personal surveillance of family members, and the garbage pull — that the police used to acquire the earlier samples? He might be able to excise all that from the case with a “judicially approved” sample. In any event, the People will present their evidence to the grand jury on Thursday.


The information on the case comes from the following media reports:
I have taken the liberty of using some words in these articles without quotation marks. For a detailed article on the nature and constitutionality of outer-directed DNA database trawling, see David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 51 Am. Crim. L. Rev. 109 (2013)