Calling all judges!

[IlyaBorisovich]

Given the number of members we have on these boards, we can be assured to have a good many judges among us.  I invite all judges, past and present, to examine the evidence presented by both sides of the AA case and enlighten us on how you would rule if this case were presented in your court.  We hear all the time from the scientific and historical communities on the value of the conflicting evidence, but now I'm curious as to how the legal community regards this case.

Ilya

Please respond only if you're employed in the legal profession in some way.  The other arguments have been presented to death in other threads.  Thanks in advance for your understanding and cooperation.

[Louis_Charles]

What an interesting idea for a thread!

[helenazar]

IB, I am glad you started this thread and I think it would be interesting to hear valid responses, if any.

In the meantime, I would like to post some material from the Innocence Project website, which is related to this topic and which explains, in part, how DNA evidence is perceived and utilized in the legal system today... (bold print and underlines are mine to emphasize certain points they make).

The Innocence Project is a well-known and well-respected organization founded by someone with a strong background in both molecular science and law: Barry Scheck - a Clinical Law Professor at the Benjamin N. Cardozo School of Law.

[size=24]
The Innocence Project[/size]

http://www.innocenceproject.org/about/index.php

The Innocence Project at the Benjamin N. Cardozo School of Law was created by Barry C. Scheck and Peter J. Neufeld in 1992. It was set up as and remains a non-profit legal clinic. This Project only handles cases where postconviction DNA testing of evidence can yield conclusive proof of innocence. As a clinic, students handle the case work while supervised by a team of attorneys and clinic staff.

Most of our clients are poor, forgotten, and have used up all of their legal avenues for relief. The hope they all have is that biological evidence from their cases still exists and can be subjected to DNA testing. All Innocence Project clients go through an extensive screening process to determine whether or not DNA testing of evidence could prove their claims of innocence. Thousands currently await our evaluation of their cases.

DNA testing has been a major factor in changing the criminal justice system. It has provided scientific proof that our system convicts and sentences innocent people -- and that wrongful convictions are not isolated or rare events....

The pace of postconviction DNA exonerations continues to grow. Not only has DNA testing proven that these individuals are innocent, it has also shown that our criminal justice system makes mistakes that leave true perpetrators on the streets while the innocent are incarcerated or face execution.

DNA testing is a powerful tool for catching and correcting these mistakes, but it is not a panacea for the ails of the criminal justice system. Its scope is limited to the few individual cases in which biological evidence is available, can be tested, and is connected to the crime. Even in those cases, the biological evidence is often reported lost or destroyed, or is too degraded to get a conclusive result. For every DNA exoneration, there are countless where testing cannot help because no DNA was left at the scene or the evidence that was once there has been lost or destroyed.

MISTAKEN EYEWITNESS IDENTIFICATIONS

Mistaken eyewitness identifications played a role in the vast majority of the postconviction DNA exonerations in the United States. Studies of eyewitness identification (http://www.innocenceproject.org/docs/Eyewitness_Testimony_Ann_Rev.pdf) over the past three decades have consistently shown the fallibility of eyewitness identifications as well as the unwitting contamination of witness recall through many standard eyewitness identification procedures.

The use of forensic DNA testing has brought about many changes in the criminal justice system. DNA testing is now being used routinely to convict and clear those awaiting trial. If performed correctly, DNA testing becomes a powerful and impartial tool, able to correctly identify any perpetrator in crimes where there is relevant biological evidence...
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If anyone is interested in the real facts about this subject, The Innocence Project website is an excellent place to start. It explains DNA as the powerful evidence it is - when the tests are performed correctly(and please don't fret, there are definite means of ensuring this), and it also explains the possible problems associated with DNA evidence when the tests are not performed correctly.

And if you read some of the links very carefully, you may start to understand why members of the scientific community tend to either fully accept or fully reject DNA results as the conclusive answer.

And perhaps after reading it carefully some of you will see why, after a thorough review of the methodology and the results, members of the scientific community fully accept the validity of the DNA test results in the Anna Anderson case...

[LyliaM]

Ilya,

This is a fascinating thread topic and thank you for suggesting it.  I'm not a judge, but I am an attorney, so I will take a stab at this.  It occurs to me that it may be even MORE intriguing to ask the attorneys here to pick one side or the other and argue a case, in a truly lawyerly fashion (i.e. eliminating all personal and unsubstantiated opinions, unattractive personal attacks, and adhering to the strictest evidentiary standards.  Any statement made must be thoroughly sourced and documented, etc.).  I know that threads along this line have been proposed before but I don't know that the outcome was what I'm envisioning.

I have spent the morning furiously researching DNA standards (thank you, Helen, for the very helpful  and informative link) and I gather that DNA evidence is, if properly gathered, indeed conclusive, absent the party who's contesting it bearing their quite considerable burden of proof to  the contrary.  At least for the purposes of this post, I will make that assumption (I'm not saying that I don't believe it to be true, but am qualifying it as an "assumption" because my research on this point is far from complete).  So, despite the other forensic evidence to the contrary, I would have to  rule that AA and AN were not the same person; that is, unless one of the attorneys before me were able to prove, beyond a reasonable doubt, that the DNA results were somehow rigged.  (I think it has been shown through a number of very comprehensive discussions elsewhere in this forum that the DNA results do not, and in fact cannot, demonstrate that AA was FS, so I won't address that here.)

I would demand, given the decades-long notoriety preceding the disclosure of DNA results in this particular case (which indeed distinguishes it quite significantly from a typical DNA case),  an impeccable and seamless history regarding the intestinal sample be presented to  me and placed in evidence, including how the tissue specimen was obtained, where it was kept and for how long, how we can ascertain chain of custody at all points in time, and of course the credentials of and methods employed by the scientists conducting the tests.  I would accept the forensic evidence apart from the DNA into evidence if it were presented in connection with a credible argument that the DNA was tampered with, but I could not use it as conclusive proof in light of the fact that DNA does trump the other evidence.  

I would expect the moving attorney (i.e. the attorney bearing the burden of proof that the DNA was rigged) to demonstrate that somebody had the (1) motive, (2) opportunity, and (3) expertise to switch the tissue sample, and that that individual and/or his/her agents in fact (4) DID effect the switch.  This is beyond my purview as judge in this matter, but I believe the moving attorney would have much evidence, at least based upon what I've learned, to demonstrate that a motive existed; and I would be willing, as judge, to entertain these arguments (indeed, would be obligated to), owing to the extraordinary history of the case.  (I'm not going to get into a detailed discussion of specifically why I personally think that, because it would lead to a post of many pages and, in any event, is not I think what Ilya had in mind when he proposed this thread.  I'm not supposed to be presenting a case here, right?!)

I would nonetheless be quite fascinated, should Ilya decide to permit somebody willing to take the role of "moving attorney" on this thread, to listen to somebody else's argument on this point!  I would thoroughly enjoy it.  Okay, now somebody who's a litigator or judge needs to step up to the plate.  And I ask in advance for your leniency with respect to any glaring errors I've made.

[IlyaBorisovich]

Lylia,

Thank you for this post.  I called for judges in the topic title, but opened it up to all in the legal profession for just this reason.  We have another board here called The People vs. Nicholas II which was set up to be run like a court case (link here:  http://hydrogen.pallasweb.com/cgi-bin/yabb/YaBB.cgi?board=trial).  I welcome the idea of both sides presenting their evidence as if in court.  Please feel free to take the role of "moving attorney." I now hope that we can hear from more attorneys and judges.  This is going to be a fascinating case!

Ilya

[LyliaM]

NEW POSTER ALERT


The DNA itself can't show Anna Anderson to be Franciska, but the statistics behind the DNA   make it unlikely that she was anyone else but the Polish Factory worker.

I believe it was discussed on another thread that that particular mtDNA sequence was found to be very very rare . So the odds that she was just a random match of a maternal relative of Franciska are less than 1%, which is basically zero

Casper --

Thank you for this clarification.  I recognize that the statistical probability that she was NOT FS, based upon the DNA results, is extraordinarily low.  I was trying to make the point that the DNA cannot, as a factual matter, conclusively prove that AA was FS.

Your expertise is very much appreciated!

[etonexile]

Great thread idea...Hopefully heaps of factual material will be explored...

[Annie]

It also must be noted that while AA = FS cannot be proven more than 99.9%, it also cannot be proven for ANYONE. Paternity cannot be any higher, and is often times lower, but still accurate. If you are only 99.9% certain to be your parent's child, does that mean you were switched at birth? We have to be reasonable and realistic about this.

[Forum Admin]

Since this thread was created for a purely legal point of view. Allow this retired attorney to point out that the evidentiary standard of proof in a civil case, which this would be, is "a preponderance of the evidence". That is to say, there is simply far more evidence to prove the question of fact. SO, while the evidence can not conclusively "prove" AS was FS, one must ask what the preponderance of the DNA evidence shows.

Rob

[LyliaM]

Since this thread was created for a purely legal point of view. Allow this retired attorney to point out that the evidentiary standard of proof in a civil case, which this would be, is "a preponderance of the evidence". That is to say, there is simply far more evidence to prove the question of fact. SO, while the evidence can not conclusively "prove" AS was FS, one must ask what the preponderance of the DNA evidence shows.

Rob

Rob -- You are correct, of couse.  Now I would love it if somebody who's a litigator (unlike me, a transactional attorney) would construct an argument that is based upon the assumptions that (1) DNA results do trump all other forensic evidence in proving identity; (2) the DNA test results were accurate and the scientists did their jobs perfectly; but that (3) the tissue either submitted for DNA testing, or ultimately tested by all three labs,  was not Anastasia Manahan's. Construct arguments regarding motive/intent/opportunity/commission of actual switch, etc.  I say this because I think it would be extremely interesting and enlightening, and the alternate approach (arguing that the DNA doesn't prove identity, look at all the crummy labs that have messed up DNA test results, etc. etc.) probably isn't going to  yield any new information.  We'll end up going around and around about the statistical probabilities, is DNA truly probative of identity, etc.  The construction of an argument challenging the origin of the tissue would open the door to introduce the other forensic evidence in an attempt to integrate the long and tangled history of this case with the DNA test results.

Any thoughts?  Perhaps another approach would be better?

[Louis_Charles]

I think you are going to run into some problems almost immediately if you take this approach. It will be necessary to compromise Martha Jefferson Hospital in Charlottesville in fact as opposed to speculation, and that would require access to evidence that I doubt the hospital would willingly provide. If it exists, of course; the idea of contamination has been discredited fairly thoroughly on various threads, so you really are looking at an unknown conspiracy, that would have included a hospital worker, designed to replace Andersen's intestinal sample with one received from someone in the Schanzkowska/Maucher gene background. The sample would have to match the tagged Andersen example exactly. The window of opportunity for this would not have been at the time of the original sample's removal, but only after it became clear that DNA sampling would be a useful investigative tool. It would have to then match the DNA results garnered from the strands of Andersen's hair that have been examined.

No, I am not a lawyer (although I have played one onstage!), but consider me an amicus curiae. I would suggest another approach, which is to dicover why so much evidence (graphology, ear measurement, etc.) suggests that Andersen was Anastasia. and leave the DNA evidence out of it. And I suspect that you will be left in the same position that the German court was. The case is simply not proven one way or the other by the pre-DNA evidence, although I will grant (along with Massie) that for an imposter, Andersen had amazing luck. If she was an imposter, of course.

Regards,

Simon

[helenazar]

... construct an argument that is based upon the assumptions that ... the tissue either submitted for DNA testing, or ultimately tested by all three labs,  was not Anastasia Manahan's. Construct arguments regarding motive/intent/opportunity/commission of actual switch, etc...   

It sounds like we'd be back to the exactly same old topic, only slightly re-worded: about the theory of the switch of AA's intestines... It would be so much more productive and interesting if something new could be discussed instead of continuously rehashing that tiresome and unrealistic "intestinal switcheroo" theory again...

[LyliaM]

Simon -- That is certainly a valid approach, and actually the one I would instinctively have wanted to take.  I didn't do so because it seems to me that the topic of the thread, as proposed by Ilya, is to place yourself in the position of a jurist who is compelled to rule in this case, based upon the facts as we currently understand them to be.  Which would, of course, have to include the DNA.  (I don't wish to appear to be "wimping out.")  Speaking of DNA, my head is  positively spinning.  I found a few "precis" on the Web written specifically to educate attorneys on this important subject and I am vividly reminded of  why I didn't go into the sciences.

I'll have to mull this over when my child has recovered from her virus and I'm once again able to think quasi-rationally.

In the meantime, some of y'all out there must be litigators or judges, no?  Please step up and make  your voices heard!

[Forum Admin]

Here are some standards that the "non-DNA" evidence will have to meet today which was different decades ago when the German court heard it.

The standard today is  Daubert v. Merrell Dow Pharmaceuticals--1993.  The Daubert decision changed the approach to admissibility in at least two significant aspects: (1) henceforth, the test for admissibility of evidence based upon "scientific knowledge" was not to be merely general acceptance in a particular field, but whether proof of "reliability" (validity) of a technique or scientific method could be established; and (2) this determination of reliability  was to be made by the trial judge, upon whom the duty now falls to keep evidence based on unreliable "science" from breeching the gates of the edifice where justice is to be dispensed.

So, former "sciences" of previous times may not pass the modern scrutiny. So, these questions will be asked of ANY "scientific evidence", even DNA. Clearly, at least DNA would pass these criteria. Anyone wishing to use other "scientific" evidence (ear analysis, etc) must answer the following as well:
Keeping in mind that the "factors" of the Daubert opinion may not be appropriate for all forms of expert testimony, consider using the following criteria:

- Are the underlying premises upon which a technique/method rests empirically validated?

- Is there a professional literature that describes the purposes to be achieved and the methods whereby the aims of the field can be reliably realized?

- Are there professional associations or societies offering continuing education to which members with established credentials are eligible to belong?

- Does there exist a rigorous training program whereby one can achieve basic proficiency in the discipline under the supervision of persons with established credentials who can impart knowledge and experience to trainees seeking to qualify as examiners?

- Is there a meaningful certification program that attests to the competence and proficiency of workers in the discipline?

- Has an examination protocol  been developed whereby investigations can be reliably carried out and which will yield reasonably consistent results when followed by properly credentialed examiners?

[Forum Admin]

Several controlling Federal Cases:

U.S. v. Lowe, 954 F.Supp. 401 (D. Mass. 1996) Held that DNA profiling evidence from Restriction Fragment Length Polymorphism (RFLP) analysis is sufficiently reliable to be admissible, and that the risk of contamination did not render the test results unreliable.

U.S. v. Shea, 957 F.Supp. 331 (D. N.H., 1997) Held that Polymerase Chain Reaction (PCR) method of DNA testing was scientifically reliable and so met the Daubert standard for the test to be admissible.