C.A. Orders New Trial in Murder Case, Says DNA Evidence Misused

Thursday, August 8, 2002

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C.A. Orders New Trial in Murder Case, Says DNA Evidence Misused

By KENNETH OFGANG, Staff Writer/Appellate Courts

The Fifth District Court of Appeal yesterday ordered a new trial in a 14-year-old murder case, saying the misuse of DNA evidence deprived the defendant of a fair trial.

While the use of DNA evidence is now broadly accepted in California, Presiding Justice James Ardaiz wrote for the court, jurors were likely misled by the way such evidence was used at the 1990 trial of Michael Pizarro.

Madera Superior Court Judge Edward Moffat III erred, Ardaiz said, in admitting evidence concerning the likelihood of the defendant’s DNA profile appearing in the Hispanic population. This was error, the presiding justice said, because there was no evidence Pizarro is Hispanic.

Instead of relevant, substantial evidence of guilt, the jurist said, jurors were asked to convict the defendant on the basis of “bootstrap logic” that “allowed defendant’s ethnicity to justify calculation of an ethnic frequency, which when presented to the jury effectively operated as proof of the perpetrator’s ethnicity—which in turn served as evidence of defendant’s guilt.”

The jurist declared:

“Reliance on defendant’s ethnicity was founded on the improper assumption that defendant is in fact the perpetrator, and that assumption was conveyed by implication to the jury.”

Bases for Ruling

Ardaiz authored a 194-page opinion, including dozens of charts and graphs, to explain the legal and scientific bases of the court’s ruling.

Moffat sentenced Pizarro to life imprisonment without the possibility of parole for the rape-murder of his half-sister. Pizarro, 21 at the time of trial, was the first Madera County defendant to have DNA evidence admitted against him at trial.

A major witness for the prosecution was the defendant’s wife. She said she saw the child walking toward Pizarro, who was in a field near Road 200 in the rural community of North Fork.

She said that her husband was intoxicated and under the influence of marijuana. She said she never saw the child and her husband together because it was dark, but she said she heard a “muffled scream” and fled.. About six hours later, authorities found the girl’s body in the field.

In People v. Pizarro (1992) 10 Cal.App.4th 57, which appears have been the third published DNA case in California, the Court of Appeal said the trial judge failed to perform his “gatekeeper” function with respect to the scientific evidence.

The case was sent back for a full evidentiary hearing as to whether such evidence was generally accepted in the relevant scientific community, as required by People v. Kelly (1976) 17 Cal.3d 24.

‘Circumstantial Case’

While prosecutors “presented a strong circumstantial case,” Ardaiz wrote in Pizarro I, it was the DNA evidence that “sealed his fate.” The prosecution, he said, should have been required to demonstrate through at least one impartial witness that the genetic fingerprinting procedures were sound.

This time, the presiding justice explained yesterday, prosecutors argued that the use of the Hispanic database was appropriate, because Pizarro, they said, was at least partially Hispanic and the use of the Hispanic database was more favorable to him than if other databases were used.

The argument misses the point, Ardaiz said.

“It fails to recognize that only relevant evidence is admissible...and that the proffered evidence (the Hispanic frequency derived from the Hispanic database) is relevant only if the preliminary fact (the perpetrator’s Hispanic ethnicity) is proved by a preponderance of the evidence....,” he wrote. “Here, there was no such proof and, as a result, the Hispanic frequency simply was not relevant. No amount of potential or actual numerical benefit to defendant could transform this irrelevant inadmissible evidence into relevant admissible evidence.”

It was, he reasoned, as if “the sketch artist sits with the defendant, sketches him as the perpetrator, and then the prosecution introduces the sketch at trial as evidence that the defendant looks exactly like the perpetrator.”

Ardaiz also rejected the argument that there was sufficient non-DNA evidence to support the conviction.

He reiterated his comment in Pizarro I, that “it is difficult to imagine how the jury could have reached other than a guilty verdict when presented with the evidence that the likelihood of finding someone else with a DNA profile in the non-Hispanic Caucasian population was 1 in 10 million and 1 in 250,000 in the Hispanic population.”

The court, he said yesterday, would not “reconsider this finding here.”

The case is People v. Pizarro, F030754.

The full text of this opinion is available at: http://www.metnews.com/sos/PvPizarro.doc for Microsoft Word document or http://www.metnews.com/sos/PvPizarro.pdf for Adobe Acrobat file.