Jens Söring's Lawyers Did Not Want the Jury Thinking About DNA
Söring's Reluctance to Pursue DNA Testing Goes All the Way Back to Trial
Jens Söring is sometimes asked why he has rejected the offer of the Small Town, Big Crime podcasters to perform free DNA testing on the evidence in his case using cutting-edge techniques which can “move[] forward many cases with inconclusive or weak DNA results” and “produce[] reliable answers on DNA mixtures with any number of contributors.” Even though the District Attorney of Bedford County has agreed to allow Söring to submit a petition risk-free, and the worst that can happen is the judge will reject it, Söring still refuses any new DNA testing. Indeed, he claims he did ask for DNA testing a few years ago, but it was a tepid, pro-forma request hedged with caveats. Söring fully anticipated it would go nowhere. In any event, DNA testing technologies have advanced rapidly even in the last few years. And unlike Söring, Small Town Big Crime really did want DNA testing, and spend untold hours developing a reliable protocol for it.
Söring’s refusal to allow modern, state-of-the-art testing is, of course, increasingly hard to explain. Söring has invented any number of excuses why he refuses to request gratis DNA testing with no risk of legal consequences. One excuse — which is now pretty stale — is the testimony of Elmer Gist, Jr., a laboratory analyst who testified at Söring's 1990 trial. Gist had produced a lab report stating that there was insufficient material left for DNA testing of the evidence samples in his case after the blood-group analysis had been performed. This, Söring claims, led him to believe that further DNA testing was impossible.
It's helpful to remember the timeline here. When the crimes were committed in 1985, the only available testing was serological, i.e., blood-group testing. Forensic DNA profiling was just around the corner, but not there yet. So the blood samples were collected and tested in a way suitable for blood-group testing, not DNA testing. In 1990, however, when Jens Söring was tried, DNA profiling had just started becoming widely available. However, it was still in very early stages, which mean that it was expensive, time-consuming, and required a large sample for testing.
During the 1990s and 2000s, forensic DNA profiling made exponential leaps, becoming cheaper, simpler, and much more powerful, such that even very small samples could yield reliable results. As the sub-head to an article in a chemical-engineering journal puts it: “DNA profiling methods have become faster, more sensitive, and more user-friendly since the first murderer was caught with help from genetic evidence.” The article goes on:
Before the boost in sensitivity provided by PCR [polymerase chain-reaction, a technique for amplifying the information content of small DNA samples], large samples such as bloodstains the size of a dime or a quarter were needed to get enough DNA for profiling… With the advent of PCR and subsequent improvements, it’s now easier to get DNA profiles from much smaller samples.... The sensitivity of PCR allows investigators to generate DNA profiles from smaller samples than were possible in the early days of DNA profiling. The amount of DNA found in only a few cells is now enough to yield a profile....
Jens Söring sometimes complains he never requested DNA testing in his case because Elmer Gist, Jr., said it was impossible at his trial back in 1990. Söring implies, and sometimes states outright, that Gist’s testimony was intended to frustrate Söring's efforts to get DNA testing.
What Söring ignores is the huge advances in DNA profiling between 1990 and 2009, when Virginia tested the evidence in his case. As we see from the above excerpt, it's a sample which was too small to test in 1990 was much more than enough in 2009, and right now, advanced techniques make it likely that reliable info can be derived. Gist's testimony wasn’t misleading at all; it just reflected the state of the art in a brand-new branch of forensic science.
But let's go back to the 1990 trial. Despite what Gist said, perhaps it might have been worth a try to submit the samples from the Haysom crime scene for DNA testing. Maybe there actually was enough in the samples to permit DNA testing, and Gist was wrong. Experts can and disagree on such issues (experts disagree on everything), as Söring's own case shows. In this case, what you would expect is for (1) Söring's own lawyers to hire their own expert to challenge Gist's conclusions; and (2) for the defense to make a formal request for DNA testing.
After all, if Söring were innocent, and his lawyers also believed he was innocent, why would they not vigorously pursue DNA testing, some of the most powerful evidence there is? If Gist was wrong, and the samples could be tested, and they excluded Jens Söring and implicated someone else, Söring walks out of court a free man. Where's the downside to at least getting an independent expert opinion on the matter? If Söring's lawyers should have been eager to pursue DNA testing, and also should have challenged the prosecution for not conducting DNA tests.
But that's certainly not the impression Söring's lawyers gave at trial. Here is the relevant excerpt from Gist's testimony (June 13, 1990, pp. 42-46):
(Prosecutor Jim Updike): Could I see the report, please?
Q: Yes, sir. I think we have all the reports right here. This is the June 8th, 1989 report. Did you prepare that report?
A: Yes, I did. It bears my original signature.
Q: And the purpose of those items being resubmitted to you at that time was what?
A: I was to determine whether or not it was sufficient material or staining remaining for a possible DNA analysis. I made the determination and found that the staining on the swabs was consumed during previous serelogical [sic] examinations, therefore, no DNA analysis is possible.
Q: And these items which we Just listed were submitted to you on June 7th, 1989?
A: That's correct, by Deputy Sheriff S. C. Rush.
Q: At this time through the Division of Consolidated Laboratory Services for the Commonwealth of Virginia, is the DNA analysis available to us here in Virginia at this time?
A: At this time it is, yes, sir.
Q: And the DNA procedure, without getting into any type of detail, is that the genetic fingerprinting procedure -
[Söring’s lawyer Bill] CLEAVELAND: Your Honor, I'm just going to note an objection, because this trial has gone on probably three days too long already, and I don't –
UPDIKE: Objection.
CLEAVELAND: And don't like to be interrupted with regard to Mr. Updike's examination, but my only point is that I don't see the relevance of going on at this point. He's already asked and answered the question.
UPDIKE: I just wanted to identify what it was, first of all, whether the procedure is available now, whether it was available at the time. Counsel has made a point of trying to say what we did and did not do, and what was done since the time of the statements in June [1986]. This is something that has been done.
CLEAVELAND: Well, he’s asked the question, and the result was negative, and that's -- that's all I have to say about it.
THE COURT: Well, I rule that we will not -- we will leave it where it is, we'll not go into this anymore. But I will, ask counsel on both sides to please refrain from making side comments about the length of the case or anything that hasn't got anything to do with the objection.
CLEAVELAND: I apologize to the Court.
BY MR. UPDIKE: (continuing)
Q: I would however, like to ask this question this DNA procedure, was it available here in the Commonwealth of Virginia in 1985?
A: No, sir, it was not, nor was it available anywhere in the world at that time.
Q: How long has this procedure been available in the Commonwealth of Virginia?
A: I believe approximately a little over a year.
The first thing to note is William Cleaveland makes the objection. Söring never mentions Cleaveland's name if he can help it, because he doesn't want to remind the world he was represented by two attorneys, one of whom was a seasoned Virginia trial lawyer.
The second thing to note is that Cleaveland's objection is that the trial has "gone on too long already" (it would last another six days). That is not grounds for an objection under Virginia law, or the law of any other state. Cleaveland then raises what could be a legitimate objection, namely that the question has been "asked and answered". But this objection doesn't really fit: Gist had just testified that there wasn't enough of the sample for DNA testing, but he hadn't been asked what kinds of testing were available in Virginia at that time.
As any American lawyer can tell you, the “asked and answered” objection often translates to “please stop letting this witness repeat things that are damaging to my client's case”. Needless to say, Cleaveland didn’t mention DNA in his cross-examination of Elmer Gist, and the defense never brought it up again at trial, as far as I can tell.
Unless Jens Söring signs a waiver of attorney-client privilege -- which he can do anytime he likes -- we'll never know what his trial defense lawyers thought about the DNA issue. But from what we can see in the record, it certainly seems as if (1) they were just fine with Gist's claim that no DNA testing was possible; and (2) they were not at all eager to have the jury thinking about what a DNA test of the evidence in Söring's case might show.
It sure would clear a lot of things up if Jens Söring let his former lawyers speak freely, wouldn't it? And that can happen anytime if Söring signs a one-page disclaimer form. Here's a sample:
WAIVER OF ATTORNEY-CLIENT CONFIDENTIALITY
I, Jens Söring, was a client of William A. Cleaveland and Richard Neaton, who represented me during my trial in Bedford County, Virginia, in 1990, Commonwealth of Virginia versus Jens Soering.
I understand that I have an attorney-client relationship wherein all communications are protected from disclosure by my attorney to third parties. Third parties include my parents or guardians. I understand that attorney-client confidentiality does not end when the attorney-client relationship ends, but rather continues indefinitely.
I understand that:
• I am NOT required to consent to disclosure to third parties.
• I should only waive attorney-client confidentiality of my own free will.
• I understand that the third party can potentially disclose
client confidential information to the larger community and is also subject to subpoena to testify against the client in court concerning disclosed information.
I have read and understand the foregoing information and hereby waive attorney-client confidentiality and will permit my attorney to speak about any aspect of his representation of me with any and all persons persons who may from time to time contact him. I also hereby authorize William A. Cleaveland and Richard Neaton to share any notes or memoranda relating to his representation of me, including attorney strategy and work-product.
Date, place
___________________________________
/s/ Jens Söring
NOTE: This document must be signed in the presence of a Notary Public. Do NOT sign before the Notary tells you it is okay to sign.