Last week, the New York State Supreme Court called for all cases using the New York City Office of the Chief Medical Examiner’s in-house DNA software, Forensic Statistical Tool, to be reviewed citing unreliable results. OCME used FST between April of 2011 and Jan. 1, 2017. Despite FST being discontinued some older cases where FST was used are still pending in the courts.
Judge Mark Dwyer, previously the chief of the Appeals Bureau, followed up on his 2015 ruling that FST isn’t acceptable for use in NYC courts and called the software suspect, stating that anyone who was identified by the software could challenge it on appeal.
“All thirteen hundred of the cases where FST was involved should be reviewed at least to tell if FST was a deciding factor,” said Allison Lewis, staff attorney with The Legal Aid Society’s DNA Unit, in a statement. “Any client who had FST in their case and is now sitting in jail, or is now with a conviction on their record, is entitled to review the role FST played.”
Overall, FST has been used in more than 1,300 cases.
“The three captioned defendants were separately indicted in 2015, 2016, and 2017 on completely unrelated gun possession charges,” read the ruling. “In each case the defense challenged the introduction of DNA evidence created by the Forensic Statistical Tool (“FST”). The FST was an analytic tool with which the city’s Office of the Chief Medical Examiner (“OCME”) assigned “likelihood ratios” to forensic samples made up of DNA from not one, but two or three, individuals.”
Judge Dwyer also said it was “beyond frivolous” that prosecutors kept repeating attacks on scientists who questioned DNA software including FST. He also noted that between 2015 and now, FST has only lost support within the scientific community and noted that the only other laboratory to use a DNA interpretation similar to FST, in Austin, Texas, lost its accreditation.
“A scientist could use FST results to opine that a two-person DNA mixture was X times more (or less) likely to be made up of DNA from a particular known individual and one unknown, unrelated individual than DNA from two unknown, unrelated individuals,” read part of the ruling. “Similarly, the analyst could testify that a three-person mixture was X times more (or less) likely to be from a particular known individual and two unknown, unrelated individuals than from three unknown, unrelated individuals.”
A spokesperson for OCME said the agency wouldn’t comment on the ruling at this time. However, Terri Rosenblatt, supervising attorney of The Legal Aid Society’s DNA Unit, commented on it.
“This decision should serve as a wake-up call for courts that admit questionable DNA tests like FST without hearing from scientists, instead of prosecutors,” said Rosenblatt in a statement. “We call on courts, prosecutors, and the Office of Chief Medical Examiner to review all cases where New Yorkers were affected by the use of FST, a fundamentally flawed tool that has already been linked to a wrongful conviction.”