Virginia Circuit Court Judge: Virginia DCSE's Paternity Testing Lab's "perrformance was shoddy"

Human error calls validity of DNA testing into question
Discipline is as reliable as ever, but workers prone to mistakes in
collecting, analyzing samples

Tom Jackman, Washington Post

Sunday, August 28, 2005

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Washington -- Washington hairdresser Andre Chreky gladly agreed to a
DNA test when a former employee hit him with a paternity suit.

The claim was absurd, Chreky said he remembers thinking. He had stopped
dating the woman years before she gave birth to the boy, now a
teenager. This would all be over soon. DNA doesn't lie.

The results were back in a month, on a two-page report from Laboratory
Corp. of America, or LabCorp, one of the largest paternity testers in
the country and the state of Virginia's exclusive contractor: "The
probability of paternity is 99.99 percent."

"It's crazy," Chreky, 50, who lives with his wife and two children in
Great Falls, Va., recalled saying. "We need to take this to battle."

The fight lasted two years. When it ended in May, Fairfax County
Circuit Court Judge David Stitt not only ruled in Chreky's favor but
also raised serious questions about the reliability of DNA testing
during a time when it is relied on to prove paternity, guilt, innocence
and more.

"I thought LabCorp's performance was shoddy," Stitt said at a hearing
in May after ruling that the state did not prove Chreky was the father.
"I think something unfair happened in this case, where a citizen was
put to the greatest extent to defend himself against what really has
turned out to be a moving target as far as where LabCorp is concerned.
.... I'm concerned about what level of oversight is being exercised by
the commonwealth of LabCorp's work."

The state is not appealing Stitt's ruling.

LabCorp handles more than 100,000 DNA paternity tests for many public
and private clients every year. But evidence at Chreky's trial showed
that the company has only five people reviewing the data and making
paternity determinations -- with one supervisor testifying that he
issues an average of 1 paternity report every 4 minutes during a
10-hour shift.

DNA experts say Chreky's case underscores a growing problem in the
burgeoning field of DNA testing: People make mistakes, and people
collect the DNA samples and perform the analysis. So, they say,
although DNA is as reliable as ever as a definitive science, the people
reading and analyzing that science are imperfect. The volume of DNA
testing also keeps rising.

The ruling in Chreky's case came as Virginia Gov. Mark Warner ordered a
review of DNA testing at the state's criminal forensic lab after an
audit detected human error in an analysis of a death row inmate's case.


Laurence Mueller, an evolutionary biology professor at UC Irvine who
has been tracking lab errors in DNA cases for years, said DNA labs "use
techniques that have been automated, like Hostess Twinkies on an
assembly line. Most of the time, the Twinkies are fine. But once in a
while, you see a bad one."

The bad ones, some biologists say, are coming more frequently.

This month, Illinois fired its DNA lab, Fairfax County-based Bode
Technology, for failing to detect semen in 11 out of 51 rape cases.
State police said the errors had not wrongly freed or convicted anyone,
but they said they would have to reanalyze evidence in 1,200 rape
cases.

At a July murder trial in Michigan, prosecutors acknowledged that a DNA
test on evidence from 1969 matched someone who would have been 4 years
old at the time of the slaying and couldn't possibly have been
involved. Additional tests led to a second man, who was convicted.

In Las Vegas in 2001, a man spent a year in jail after being wrongly
accused of committing two sexual assaults in the 1990s. Investigators
later found that his DNA sample had been switched with another
inmate's.

Human error "has always existed in all of the forensic sciences," said
William Shields, a professor at the State University of New York in
Syracuse who has testified in numerous DNA cases. "It exists in all the
sciences."

Brad Smith, a LabCorp spokesman, said criticism from the judge in
Chreky's case appeared to be the result of "some good lawyering on the
challenge side."

"We are confident that we reported the correct results and that we
followed appropriate procedures and good science," he said.

Smith added that he had worked in the identity and paternity testing
field since 1982 and that "we've never had a result like this and/or a
(judge's) statement like this."

Nathaniel Young, director of the Virginia Division of Child Support
Enforcement, which pursued Chreky's paternity, said in a statement that
he could not comment on the case, but he said procedures are under
review.

LabCorp has performed Virginia's paternity testing since 2001 and
charges the state $39.50 per test, or about $120 per case. State
statistics show LabCorp was paid $797,000 last year and did almost
20,000 tests.

Stitt found LabCorp's "99.99 percent" report "not statistically valid"
and ruled that the state had "failed to prove by clear and convincing
evidence" the case against Chreky.

How could a judge discard a seemingly definitive DNA report? Experts
said it was virtually unheard of.

But Mueller pointed to a number of incidents of lab error in recent
years, including allegations of problems with crime labs in Houston and
Richmond, Va. Crime labs in Philadelphia and Minnesota were later
discovered to have sent out "false matches."

"It's a terribly important issue," Mueller said. "People involved in
doing these techniques make mistakes that are not involved with
technology. ... Until you get humans out of the system, these things
can happen."

Chreky is no scientist. He said he just knew that this was something he
needed to fight. Most people don't have the means to contest a "99.99
percent" finding. His wife, Serena, said the couple spent more than
$200,000 to fight the case.

Chreky said he spent much of the past three years overwhelmed with
anxiety about the case. "I've been getting up at 3:30, sleeping a
couple of hours a night," he said. "I tried to keep busy. You don't
want to think about it."

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Interesting Cases.. but as the whole Twinkie argument in there...
Mistakes do tend to happen. But one possibility to ensure fewer
Mistakes happen in the way of Paternity Testing. Have 3 Independant
Labs do the testing. There is more then one Lab now that will conduct
the testing.

If 2 out of 3 come back either stating Yay, Or Nay.. then with a high
degree of probability you are on the right track. Police use this
technique. They will have their teams conduct testing, and then send
samples to a seperate lab for testing.

I feel bad for the person who is described in this Case.. and I
applaud him for fighting it. But I still have reservations in
declaring DNA and Paternity Testing Invalid for a small number of cases
where Human Error came into play.

Instead I would start to find fail safes in the system such as Double
and Triple Blind testing. We uses this type of testing when testing
new Drugs.. and it's accepted. Why not apply the same theory to DNA
testing.

SpiderHam77

SpiderHam77 wrote:
Interesting Cases.. but as the whole Twinkie argument in there...
Mistakes do tend to happen. But one possibility to ensure fewer
Mistakes happen in the way of Paternity Testing. Have 3 Independant
Labs do the testing. There is more then one Lab now that will conduct
the testing.

If 2 out of 3 come back either stating Yay, Or Nay.. then with a high
degree of probability you are on the right track. Police use this
technique. They will have their teams conduct testing, and then send
samples to a seperate lab for testing.

I feel bad for the person who is described in this Case.. and I
applaud him for fighting it. But I still have reservations in
declaring DNA and Paternity Testing Invalid for a small number of cases
where Human Error came into play.

Instead I would start to find fail safes in the system such as Double
and Triple Blind testing. We uses this type of testing when testing
new Drugs.. and it's accepted. Why not apply the same theory to DNA
testing.

Even with the best methods, human genetics can foil the tests:

http://www.katewerk.com/chimera.html

This article indirectly brings up the possibility that even when men
test negative, they can be positive, if they are chimeric.

- Ron ^*^

Werebat. Yes I agree the article does in fact give a good possiblity
of an interesting argument. However do you honestly think that this
would apply to enough people..

The article infact claims there are only about 30 cases on record.
Now even if you just consider the population of the US.. not the world.
30 cases would account for about .00000012% of the Country. At the
rate that the US pop is approx 250 Million people.

You would almost stand a better chance of winning the Lottery or
getting struck by lightning, then being one the people chimera would
actually affect.

And if the argument that this could help Men prove they are in fact
not the father. Wouldn't it also stand reason that this same argument
could be used against people who were found not to be the father thru
DNA Paternity testing. Due to the Sperm DNA being different from the
reast of their DNA.

SpiderHam77

SpiderHam77 wrote:

Werebat. Yes I agree the article does in fact give a good possiblity
of an interesting argument. However do you honestly think that this
would apply to enough people..

The article infact claims there are only about 30 cases on record.
Now even if you just consider the population of the US.. not the world.
30 cases would account for about .00000012% of the Country. At the
rate that the US pop is approx 250 Million people.

You would almost stand a better chance of winning the Lottery or
getting struck by lightning, then being one the people chimera would
actually affect.

And if the argument that this could help Men prove they are in fact
not the father. Wouldn't it also stand reason that this same argument
could be used against people who were found not to be the father thru
DNA Paternity testing. Due to the Sperm DNA being different from the
reast of their DNA.

Oh I didn't say it could be used to HELP men. I mean it could be used
to cast doubt on men who test negative on paternity tests, by feminists
who want to allow women to just name any man they want as the father.

- Ron ^*^

SpiderHam77 wrote:
Interesting Cases.. but as the whole Twinkie argument in there...
Mistakes do tend to happen. But one possibility to ensure fewer
Mistakes happen in the way of Paternity Testing. Have 3 Independant
Labs do the testing. There is more then one Lab now that will conduct
the testing.
[snip]

It isn't as simple as that. For example, the science (and mathematics)
of paternity testing is still evolving. If all the labs use the same
level of science, they may all make the same mistake.

It is normally assumed that a DNA paternity test can exclude a man with
100% reliability, assuming there is no human error. But labs, I
believe, normally work to a standard of requiring incompatibilities at
2 loci. It is long-established that one loci isn't enough, because
there can be a mutation. So the logic is that two mutations are so
unlikely that it is safe to treat two incompatibilities as a reliable
exclusion. Some research now suggests that perhaps three loci should be
allowed for. Other research suggests that, instead of quoting results
as either 100% exclusion or inclusion with a specified paternity index
(or percentage), all results, even exclusions, should be based on the
same sort of statement of paternity index. That may make it a bit more
obvious that a DNA paternity test is "evidence", not "proof".

Perhaps having 3 labs would catch those cases anyway. But I think it is
important to have two other mechanisms: an appeals mechanism (such as
used, in effect, in this case); and a process for evolving tests and
processes in the light of new research. Perhaps anyone paying child
support as a result of a DNA paternity test should be allowed to have a
re-test, initially at their own expense, and without initially
disrupting CS payments, every few years, in case the science has
advanced enough to disprove earlier results. Just as DNA testing in
criminal trials can overturn earlier results that didn't rely on DNA,
so later DNA testing may eventually be allowed to overturn earlier DNA
results.

At the moment, I guestimate that at least 1 in 12 children in the US
get paternity tested during their childhood. (My guestimate for the UK
is about 1 in 32, and for Australia about 1 in 50). There is potential
for a lot more paternity testing, and hence for a lot more statistical
anomalies, new scientific discoveries, and human errors.

See:

"Multiple mutations, covert mutations, and false exclusions in
paternity casework"
CH Brenner, Consulting in forensic mathematics, Oakland, California

"DNA analysis in disputed parentage: the occurrence of two apparently
false exclusions of paternity, both at short tandem repeat (STR) loci,
in the one child"
Gunn PR, Trueman K, Stapleton P, Klarkowski DB

"Use of STRs in paternity testing in the Flemish population"
G=2E Mertensa, N. Mommersa, H. Heylena, L. Boutrandc, A. Vandenberghea, c
and Z. N. Bernemanb

"STR mutations in paternity investigations: a study of 1-year
consecutive cases"
H=2E Geadaa, L. Viriatoa, C. Vieira-Silvaa, C. Cruza, I. Lucasa, T.
Ribeiroa and R. Espinheiraa

"Presence of two mutations between father/child in two cases of
paternity testing"
C=2E Brandt-Casadevalla, M. Gen=E9b, E. Piqu=E9b, N. Borregob, C. Gehriga,
N=2E Dimo-Simonina and P. Mangina

"De novo mutations at D3S1358, D8S1179 and D18S51 loci emerged during
paternity testing: confirmation of biological paternal lineage by using
a panel of Y-chromosome STRs"
U=2E Riccia, N. Cerrib, I. Sania, M. Franchib, S. Mascadrib, F. De
Ferrari, b and M. L. Giovannucci Uziellia

--
Barry Pearson
http://www.childsupportanalysis.co.uk/
http://www.barry.pearson.name/photography/
http://www.birdsandanimals.info/

I like the idea of re-testing every few years... withou the
disruption in CS or Custody.. or whatever... that makes a lot of
sense.. And I do agree the testing is becoming more and more stable..
as new techniques become available.

One thought though behind your Guestimations of Paternity Testing in
different Countries... Why do you think that it's lower in these
countries..

I don't think it has alot to do with just Population.. But more to do
with Education. People are more educated... and the more educated a
person, Statistics show this, the less likely they are to have a child
out of Wedlock, or long term Relationship. I don't know where the
Stats are located.. but I remember reading it somewhere..

SpiderHam77 wrote:
[snip]
One thought though behind your Guestimations of Paternity Testing in
different Countries... Why do you think that it's lower in these
countries..

I don't think it has alot to do with just Population.. But more to do
with Education. People are more educated... and the more educated a
person, Statistics show this, the less likely they are to have a child
out of Wedlock, or long term Relationship. I don't know where the
Stats are located.. but I remember reading it somewhere..

I don't think it is much to do with numbers of out-of-wedlock children.
I think it is to do with the relative maturity of the paternity testing
industry and practice in the various countries.

If you look at the following page, it suggests that research and use of
paternity testing was undergoing lots of progress in the US long before
the UK and perhaps Australia. It appears to have been a more natural
thing to do there. In the UK and Australia, paternity discrepancies
have tended to be seen by many people as something to be covered up,
rather than something that needs an industry to uncover it.

http://www.childsupportanalysis.co.u...rnity.htm#labs

Or see: http://tinyurl.com/dxwmn

There are still organisations in the UK (HGC), Australia (ALRC), and
New Zealand (LC), that have been in favour of heavy regulation of
paternity testing. It was only a few years ago that some politicians in
the UK wanted to ban companies that offered unofficial paternity
testing. I think the UK is getting past that stage, but it still
lingers in Australia and NZ. It will pass.

It isn't consistent. The UK probably has a better policy of using
paternity testing in CS cases than much of the US. (And over the last 7
years, the exclusion rate for paternity tests administered by the UK's
CSA has been 16%). I think people are prepared to be more open about
the matter in the US - although this doesn't properly translate into
anti-paternity-fraud laws.

This may be something to do with the relative aggression of child
support in these countries too. I think the US is the only "Western"
country without a "universal benefit" for children. (?) In most
countries, if you have a child, you get an automatic payout from the
state. (In the UK, this is called Child Benefit, and pays perhaps 1/5th
of a minimal cost of the basic living costs of a child). As a result,
CS awards in those countries tend to be a bit lower, because they are
supplemented by the universal benefit. I am rather surprised at the
relatively low rate of paternity testing for CS cases in the UK,
compared with the US.

Paternity testing has been quoted as growing at 11% per year across the
"Western" world. I think the UK will gradually catch up with the
current US rate, and Australia and NZ will gradually catch up with the
UK. I try to impress on agencies in the UK the futility of trying to
restrict paternity testing, given the ease of getting them over the
web. (And I publish a list of such paternity testing services in
several different countries).

--
Barry Pearson
http://www.childsupportanalysis.co.uk/
http://www.barry.pearson.name/photography/
http://www.birdsandanimals.info/

You know that actually makes sense.. I know here in Canada you
recieve whats called the Child Tx Benifit.. It's a sum of money paid to
the CS parent every month.

Now mind you though it's only paid to those who produce a certain
Income. Bascially if you claim like 45K a year or higher you don't
recieve anything.. But then to a varying degree you recieve a certain
amount based on Income level as reported on your Previous Tax Form.

And this is a non Taxable, Once a month payout. Now if it applies to
Child Support payments in regards to hw much they have to pay.. I'm
unsureabout that.

But I do also know in Canada we have established Guidelines for Child
Support. Everyone falls under the same Brush on this one. You can
choose to pay as much as you want in Support. But there is a Bare Min
you must pay based on your Level of Income as the NCP.

And you can have it altered as the years go on, based on if you make
more money.. or less money... Now mind you though to have it lowered..
when you've lost your job may take a few months.. And there is a slight
inequity in that sense.. But overall it seems to be a good system.

Like any system though there are improvements. The whole idea of the
Guidelines when set by the Gov were to give the Courts a Bases as to
what to work off of.

And as there are a few Extreme Cases, and some that totally fit into
the whole spectrum, for the most part it seems to be fair.

But as far as the Paternity Testing.. I didn't relaize that the Labs
in Europe seem to be perfecting the whole method more so then here in
North America.. If thats the case... then if I wanted a Paternity Test
completed.. I would simply hire a Lab out there to conduct it...

A $200 cost upfront is a far cry from the thousands you will have to
pay in the future if you are deemed to be the Father by Shotty Lab
Work.

SpiderHam77