In the last post, I asked why Jens Söring has never asked for DNA testing of the evidence against him. When pressed on this issue, Söring sometimes mentions 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.
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 relatively large amount of material 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 a good 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, Butler says. 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 got DNA testing in his case because Elmer Gist, Jr., said it was impossible. Söring implies, and sometimes states outright, this was intended to frustrate Söring’s efforts to get DNA testing. What Söring’s arguments ignore is the rapid 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 quite possible for a sample to be too small to test in 1990 but enough in 2009, and especially 2021 (assuming it was properly stored and not contaminated). Gist’s testimony was thus not misleading at all.
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 disagree on such issues, 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 was 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, he would walk out of court a free man. Where’s the downside to at least getting an independent expert opinion on the matter? Söring’s lawyers thus should have been eager to pursue DNA testing, and also should have questioned, or even attacked the prosecution for not conducting any.
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):
“(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 –
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 –
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 . 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, 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 to share any notes or memoranda relating to his representation of me, including attorney strategy and work-product.
/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.