It’s in the genes (2)

published 25 Aug 2008, MST

Reynaldo was convicted of rape in 1995. The victim, his niece Aileen, also claimed that she bore a child from this incident. Reynaldo was sentenced to death. Upon automatic review, the Supreme Court affirmed the conviction in 2001 but brought down the sentence to life imprisonment. Reynaldo was also ordered to support the child, Leahlyn.

In that six-year gap between 1995 and 2001, significant developments in DNA technology have taken place in the Philippines. DNA stands for deoxyribonucleic acid, the genetic blueprint that makes every person (except identical twins) unique.

Reynaldo was one of 106 death-row inmates who volunteered to participate in a study, Forensic DNA evidence and the death penalty in the Philippines, conducted between 2002 and 2004 by a team of scientists (De Ungria, Sagum, Calacal, Delfin, Tabbada, Dalet, Te, J. Diokno, M. Diokno, and Asplen) and published just this year in Forensic Science International. The team wanted to see whether the Short Tandem Repeat method of DNA typing could challenge—and possibly overturn—convictions that relied heavily on victims’ and eyewitnesses’ testimonies. A DNA test was performed on Reynaldo and Leahlyn. The results, released in March 2003, was a mismatch: Reynaldo could not be Leahlyn’s father.

Armed with this information, Reynaldo and his son, June, asked the Supreme Court for a new trial in 2004. Their petition was denied. The court said the evidence should have been presented at the trial court level, and that the exculpation of Reynaldo as the father of the child was a separate matter altogether from the crime of rape.

The new technology would have also been able to establish the presence of Reynaldo ‘s DNA inside the victim’s body and hence determine his guilt or innocence—that is, if only biological samples had been taken from the victim within 72 hours of the time of the incident. Alas, Aileen did not tell her mother that she had been raped until many months later.

(In 2005, the 78-year-old Reynaldo was pardoned and released. Eventually, in October 2007, the Supreme Court released its Rules on DNA Evidence. In the same month, it remanded the case of People vs. Umanito to the trial court for reception of DNA evidence.)

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One might ask: Won’t the option to invoke DNA technology to question promulgated decisions clog the courts even more? The answer is surprising. According to Dr. Maria Corazon de Ungria, head of the DNA Analysis Laboratory of the University of the Philippines- National Science Research Institute, while the study confirmed the vital role of DNA evidence in overturning convictions, it also revealed that post-conviction applications of the technology can only help up to a certain point.

Foremost, the samples have to be available at the time of the trial. Second, not all who are convicted avail themselves of this option. Only the truly innocent—and the informed among the innocent—do. Third, the courts must deem DNA evidence crucial to the resolution of the case.

Instead, De Ungria says the order of the day is to get it right the first time—at the trial level. She means there must be proper collection, handling and preservation of evidence that may later on prove crucial to the case. In the study I mentioned earlier, no biological samples were collected at the time of investigation for 89 of the 106 cases. In seven cases, the samples were collected but not stored properly. In eight cases, the samples were collected but were lost.

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A sexual assault investigation kit costs three hundred thirty pesos. That’s a fast food meal for two or three people. A single dish, maybe less, in a more upscale restaurant. Yet that amount can make all the difference between justice being served and justice being thrown out the window—for the victim, the accused, and their families.

An offshoot of the post-conviction application study, the kit was one of the projects funded for a year by the World Bank’s Development Innovation Marketplace, otherwise known as Panibagong Paraan. This rape investigation kit is something that can be used by women’s desks in police stations the moment a victim comes forward and claims she (or he) has been raped. Biological samples can thus be taken and stored at once, and the first observation made in the study would now be addressed. Evidence would be available at the trial level.

The kit contains four swabs—two are for immediate DNA extraction and the other two for storage, in the event that there are questions raised on the handling of the other two. Medical professionals are trained on the use of these kits. The extraction and analysis are conducted free by the National Bureau of Investigation if the sampling is done to support a criminal case.

But that’s only collection and handling. How about storage? Certainly, the NBI cannot ever dream of being able, or willing, to store all samples from all criminal cases throughout the country.

To this practical problem, De Ungria has a simple solution. Local governments have to be more involved. City or municipality mayors would only have to shell out no more than few tens of thousands of pesos for several refrigerators to house the samples. The risk of the evidence being lost, contaminated or switched must be minimized at the local level through the police. And then the evidence would be ready when the court asks for it.

“We have the technology in place; we also know the solutions,” De Ungria says. “Having the will to actually do it is another matter altogether.”

I will conclude this series on DNA technology next week with an academic’s thoughts on the collaboration among government, the private sector and the academe as well as of the pursuit of knowledge for social transformation.