Russell Murder Trial Sets A Precedent With Use Of Dna Test

King County prosecutors have tried thousands of accused murderers, but none quite like George W. Russell, and none in quite the same way.

Russell's trial - expected to go to the jury by the end of the week - sets two precedents in the King County criminal-justice system:

Russell, 33, a Mercer Island high-school dropout, is charged with the brutal murders of three Eastside women last summer. He is the first person to be tried in a series of killings in the county.

Named in two counts of aggravated first-degree murder, and one of first-degree murder, he would face a mandatory sentence of life in prison with no parole if convicted on either of the aggravated-murder charges. If convicted of only the first-degree murder charge, the sentence would be 20 years to life.

The Russell trial in King County Superior Court is the first in the county - and only the second criminal trial in the state - to introduce a new sort of DNA evidence that police and prosecutors say will help identify criminals from traces of themselves they leave behind.

In the Russell case, DNA testing was used on semen found in Mary Anne Pohlreich's body, which prosecutors say matched Russell's and just 8 percent of the population. DNA analysis was also used on a bloodstain on the seat of a truck Russell borrowed the night of Pohlreich's murder last June.

The stain was months old, the truck had been detailed three times; yet the tests showed, prosecutors say, that the DNA was the same as Pohlreich's and only 6 percent of the population.

Pohlreich's nude body was found next to a Dumpster in a restaurant parking lot June 23, 1990. Carol Beethe and Andrea Levine were the two other Eastside women to be found that summer bludgeoned to death. All three bodies were posed grotesquely after they died.

But as both the FBI and Washington State Patrol crime labs gear up to do the new type of DNA testing more routinely, defense attorneys are asking that its use be carefully examined.

They say it's too soon to expose juries to the DNA evidence because the tests are at best unproved and, at worst, may be incorrect - yet are so persuasive to juries they amount to "guilt by machine."

There are two types of DNA tests now in use.

The more common breaks the DNA - a component of the chromosomes responsible for determining and transmitting hereditary characteristics - into fragments, usually at four places.

The lengths of these fragments, which are highly individualistic, are compared in samples from the crime scene and from the defendant.

The newer test being used against Russell is called PCR, for polymerase chain reaction.

Outside of courtrooms, the test is used to make better matches between organ donors and recipients and has helped identify remains of soldiers killed in Operation Desert Storm.

PCR is being used to make prenatal diagnoses and, researchers say, it can identify a murder victim from samples from an 8-year-old skeleton.

"PCR has revolutionized molecular biology. It was the discovery of the '80s," Dan Geraghty, an assistant professor at the Fred Hutchinson Cancer Research Center, testified at the trial.

The PCR test works like a molecular photocopy machine, making millions of copies of a piece of DNA from even the tiniest, oldest bit. PCR copies a particular gene known to have several variations, then identifies the variation.

Both types of DNA tests have been or are being challenged in court.

Of 13 state supreme courts to consider DNA fingerprinting, eight have affirmed lower-court decisions allowing it. Minnesota and Massachusetts high courts have either barred or restricted it, while three others ruled inconclusively.

In Washington, the state Supreme Court has three appeals pending involving admissibility of DNA evidence in cases in which defendants were convicted with the help of one of the two types of tests.

Defense lawyers challenge the tests on a number of grounds: that the tests themselves are unproved, that a particular lab doing a test can err, or that genetic population studies used to calculate probabilities of a coincidental match, are unproved.

"It's voodoo," says Pete Connick, who's appealing the conviction of a Snohomish County rapist. "At this point, they can't demonstrate reliability, especially what standards and controls to use, or how to declare a match and how to extrapolate the figure. There's no agreement on that. You have a jury listening to this . . . it sounds like a divining rod."

Connick is asking the state Supreme Court to consider whether DNA fingerprinting is generally accepted among scientists and should be admitted in trial.

Prosecutors say genetic fingerprinting provides a high degree of identification.

"It's not uncommon to have a probability of one in a million or one in several billion," said Aaron Fine, Snohomish County deputy prosecutor, who's arguing the Snohomish County case for the state.

Whatever the ruling in the Snohomish County case, it would likely have little effect on a Russell conviction, because the testing in that case was completely different.

The PCR test has been used only once before in the state in a criminal trial, in Kitsap County against Jonathan Gentry, convicted of killing a 12-year-old girl during an attempted rape.

Fred Leatherman, Gentry's attorney, says the test used to convict his client was far from infallible. The test showed DNA extracted from blood on his shoelaces matched that of the victim and that of just one in every 555 people.

Because he was sentenced to death, Gentry's case is being automatically appealed, and part of the appeal is a challenge to the test.

"I don't think anyone thinks the . . . test itself is invalid or unreliable," Leatherman said. "But when you take it and apply it to crime-scene evidence, you're not sure what you're replicating. First you have to extract the DNA - it's frequently contaminated by DNA from other sources. You don't know where the stuff has come from.

"In the absence of accepted research that has proven to scientists that what they say is in fact true, I don't buy what they're saying," Leatherman said.

"That's what science is all about. If we didn't have skepticism, we'd all believe you could have fusion at room temperature."