Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

DNA EVIDENCE: IN MURDER CASES, IT CAN BRING DEATH TO THE INNOCENT

Let’s not accept the exception to the rule as a substitute for the general criminal justice rule. Particularly in cases where the stakes are as high as they are in murder cases. Especially when the penalties are either death or life imprisonment without the chance of parole.

The Dzhokhar Tsarnaev case is the exception. Very rarely do you have defense attorneys get up in the beginning of a trial to proclaim their client guilty as charged. More often, there is some question as to guilt or innocence.

Take instead the Washington D.C. case of Santae Tribble. Mr. Tribble was a 17-year-old man in 1978. That was when he was accused of murdering a taxi driver. Thanks mostly to the expert testimony of an analyst with the Federal Bureau of Investigation about DNA found on hair strands, Mr. Tribble was found guilty and received a sentence of 20 years to life in prison.

It turns out that the expert had been wrong. The hair did not belong to Mr. Tribble. In fact, it turned out that some of the hair was not even human hair. It had come from a dog.

This was one of those cases wherein, years later, attorneys were able to have the evidence re-examined. In 2012, a judge vacated Mr. Tribble’s conviction and dismissed the charges against him. This was done along with the exoneration of two other men who had served decades in prison based on faulty hair-sample analysis.

The F.B.I., to its credit, decided to conduct a sweeping post-conviction review of 2,500 cases in which its hair-sample lab had reported a match.

The preliminary results of that review were breathtaking: out of 268 criminal cases nationwide between 1985 and 1999, the bureau’s “elite” forensic hair-sample analysts testified wrongly in favor of the prosecution, in 257, or 96 percent of the time. Thirty-two defendants in those cases were sentenced to death; 14 have since been executed or died in prison.

The agency is continuing to review the rest of the cases from the pre-DNA era.

While the F.B.I. is finally treating the issue with the seriousness it deserves, that fact offers little comfort to the men and women who have spent decades behind bars based on junk science or their families.

Or the dead.

    Attorney Sam’s Take On The Reality Of The Death Penalty


The New York Times recently published a number of articles about the early days through current day of DNA evidence. They include F.B.I. Audit of Database That Indexes DNA Finds Errors in Profile, DNA Analysis Exposes Flaws in an Inexact Forensic Science and Junk Science at the F.B.I.

At present, DNA evidence seems to be the strongest possible evidence which a prosecutor may have at his or her disposal. And yet…clearly even this type of evidence is subject to error.

DNA evidence is most usually collected in high level cases such as murder or sexual assault. DNA evidence is considered so strong that the few instances in which a jury is not swayed by it, the jury is considered a joke. Anybody remember the murder trial of O.J. Simpson?

While the federal Justice Department may be wringing their collective hands about such mistakes, one must really question their sincerity as well as that on the part of their state counterparts. After all, given that our system is based upon the belief that it is better than guilty men go free than to have an innocent man be locked up, I have to wonder why such sentences such as death can even be legal anymore.

Unless there is a metaphysical court of which I am unaware, the dead don’t get their sentences changed when exonerated. They simply stay dead.

One also has to wonder why, when defense attorneys fight to get DNA evidence re-tested, government prosecutors routinely oppose such an action.

I know that a number of years have passed since I was a prosecutor in New York, but I could have sworn a prosecutors job was to “do justice”. Given how many mistakes are made, it’s kind of hard to understand how leaving the guiltless under the guilty column does anything for the cause of justice other than pervert it.

So, as the lawyers jockey for position in federal court, macabrely discussing putting someone to death in our name because he clearly participated in the killing folks in an unspeakable way…let’s recognize that, whatever the jury decides, this is not a victory for the death penalty.

There is no victory for the death penalty.

Only loss. For the condemned. For the society…or what passes for it.

    NOTE TO READERS

: The folks at both Altman & Altman, LLP and the Law Offices of Samuel Goldberg regret that, over time, we have had more and more difficulty with regularly posting this blog…which, at one time, was daily.

Beginning tomorrow to help ensure regular postings, my associate, Attorney Ian Keefe (who has been mentioned from time to time in these postings) will be pitching in.

We expect that Ian will be writing the blogs posted on Tuesdays and Thursdays and I will be posting somewhere between one and three others.

My intention is to post each Monday, Wednesday and Friday. Stay tuned to see how well I do!

Thank you.

Sam Goldberg

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