Debate heats up over DNA testing

Kim Smith

Friday, April 19, 2002 | 10:55 a.m.

Two different DNA cases. Two different results. Both made headlines this week in Clark County and fed the debate over when DNA testing should and should not be conducted.

On Tuesday, prosecutors announced that DNA testing conducted in an 11-year-old case proved that Albert Lee was rightfully convicted of sexually assaulting a Las Vegas woman.

On Wednesday prosecutors dismissed sexual assault charges against Lazaro Sotolusson, a Las Vegas man, when it was discovered by a defense expert that a clerical error led to his DNA sample and the DNA sample of another man being switched in a computer database.

The cases have raised the debate in Nevada over the proper use of DNA testing, with both prosecutors and defense attorneys pointing to the cases as examples that support their beliefs.

Prosecutors say Lee, who is believed to be the first person in the state to win the right to have his DNA tested following a conviction, shows why such testing is often unnecessary. Defense attorneys counter that the Sotolusson case is a perfect example of why it is necessary -- because human mistakes are made throughout the criminal justice system.

Nationally, 105 people have been exonerated in recent years due to post-conviction DNA testing, said Huy Dao, the assistant director of the Innocence Project, a national nonprofit organization found by Barry Scheck, one of O.J. Simpson's attorneys.

About half of those people were represented by Innocence Project attorneys, Dao said.

The Innocence Project is evaluating another 2,000 cases for possible action and another 2,000 defendants are on a waiting list, Dao said.

Clark County Public Defender Marcus Cooper said that while the testing in Lee's case proved his conviction was just, the Sotolusson case could "very well lead to more" requests for DNA testing.

"It calls into question the procedures that are in place," Cooper said. "How does it get to point it did in this case without anyone finding this error?"

Chief Deputy District Attorney Doug Herndon said he doesn't believe the error means all DNA testing done to this point is suspect.

"It was unfortunate, but I think it was, literally, a one-time thing," Herndon said. "I don't think we'll see this again."

Clark County District Attorney Stewart Bell doesn't believe it will happen again either. Nor does he believe the case should be used to bolster the arguments of defense attorneys who believe DNA tests should be done in every sexual assault and murder case.

"We like to use DNA testing whenever we can, whenever it makes sense, but it doesn't always make sense," Bell said. "We're looking at everyone we've put on death row. We've looked at 40 of the 65 cases so far and in not one of them is there a question of identity."

Zane Floyd was placed on death row in 2000 after he went on a killing spree in a local grocery store. Bell said it wouldn't make any sense to do DNA testing in that case because he was caught on videotape and seen by multiple witnesses.

Conversely, if there is a question about identity, Bell said his office is always willing to do the necessary testing.

"We're always willing to fold whenever the integrity of the system is in question," Bell said. "I have a comfort level that the people we put in prison are guilty."

Dao was surprised to hear about the Sotolusson case.

"I think that's bizarre," Dao said. "It's very disturbing to me that the technology used specifically for identification purposes was so sloppily handled."

Dao said that while he has heard of authorities turning in the wrong DNA sample to be tested, he has never heard of a clerical error leading to DNA samples being misidentified.

"That kind of sloppiness can lead to disastrous results and if not for the whim of the defense attorneys to hire another expert, they may never have resolved this case," Dao said. "We can't resolve issues of guilt and innocence on whims."

Michael Pescetta, an assistant federal public defender and an expert in handling capital punishment appeals in Nevada, said he wasn't surprised by the Sotolusson case.

"We're fooling ourselves if we say mistakes can't happen," Pescetta said.

People can accidentally switch DNA samples, they can misidentify their attackers and false confessions can be obtained, Pescetta said.

In fact, a young girl identified Sotolusson as her rapist in one of the cases that was dropped this week, Pescetta noted.

Had Sotolusson been convicted and then asked for DNA testing, chances are prosecutors would have fought it by arguing they had a positive identification from a victim, Pescetta said.

"It's sort of a miracle anyone listened to him and had the DNA re-tested before his trial," Pescetta said.

Pescetta believes more DNA testing is the key to fewer wrongful convictions.

"My position is that, certainly in post-conviction cases, that if there is biological evidence and if the defendant wants it tested, it ought to be tested," Pescetta said. "The worst thing that can happen is their identification is confirmed, but at least the question will be answered."

Herndon said the Lee case is the perfect example of why every case should not include DNA testing.

"There was a lot of corroborating evidence in that case that pointed to him as the suspect," Herndon said.

Dao called Herndon's stance "ridiculous."

"It's ridiculous to deny somebody access to new evidence that could prove their innocence," Dao said. "Are they so confident in their convictions that they don't want to re-test? Obviously they shouldn't be considering the results of the (Sotolusson) case."