DNA Ruling In 1999 D.C. Slaying Could Set Precedent

The ruling applied only to the Jenkins trial but could have been cited to bolster arguments by defense lawyers challenging the use of cold hit DNA in other cases. That left some prosecutors here and elsewhere anxious. They worried that a key investigative tool might be in legal jeopardy.

Unwilling to go forward without the DNA evidence, the U.S. attorney's office appealed, and lawyers throughout the country awaited what they called the first appellate opinion on the statistical significance of a cold hit DNA case.

"If other courts followed this, it could have meant the end of the whole database program," said Steve Redding, a Minneapolis prosecutor who has worked on DNA cases since the late 1980s.

By contrast, some defense lawyers who work on DNA cases saw an opportunity to force the issue out of the legal arena and back into the laboratories for more research.

"I think that one of the problems is that as much as these justices clearly want this to be a legal issue, I just don't think it is," said Jennifer Friedman, a lawyer and the forensic science consultant for the Los Angeles County public defender's office.

While the legal debate captivated lawyers, it unsettled the victim's family. Gehrke was left to wonder how they ended up in the middle.

"DNA: You hear those three little letters and you think you've got it, you're there, you've busted him," she said. "And all of a sudden, no, that's not good enough, and you're just standing there in shock."

Dolinger, 51, was an advisory neighborhood commissioner and anti-crime organizer who lived in the 1500 block of Potomac Avenue SE. On June 4, 1999, police found his body in his basement. He had been stabbed several times in the head, and his wallet, a diamond ring and a gold chain were missing. Police believed that Dolinger's assailant was injured during the attack. They found blood stains on clothing and other surfaces inside the house and on the front walkway and sidewalk.

At first, it looked to be a quick investigation. Within days of the killing, murder charges were filed against an Alexandria man who was using Dolinger's credit cards and had other items that were missing from Dolinger's house. The man spent several months in jail awaiting trial before authorities determined that his DNA did not match the crime-scene evidence.

That was when they turned to the cold hit process.

After Winston's ruling, the lead prosecutor, Michael T. Ambrosino, and the lead defense attorney, Edward J. Ungvarsky, went to work with their colleagues crafting their arguments for the D.C. Court of Appeals. The case was argued in October before a three-judge appellate panel by Valinda Jones of the U.S. attorney's office and Andrea Roth of the D.C. Public Defender Service.

In a 21-page opinion written by Chief Judge Eric T. Washington, the appellate court disagreed with Winston, saying there was no scientific controversy about DNA evidence itself. Each of the mathematical calculations under consideration adequately answered a question, and it was up to the judge to decide which was the most relevant to use, they said.

Washington was joined in the opinion by judges Noel A. Kramer and James A. Belson.

Issued with unusual speed, the opinion was well received by prosecutors. "Clearly we'll be dealing with more cases as the science continues to advance and as the sensitivity of law enforcement increases to the types of evidence that might yield DNA," said Glenn L. Kirschner, chief of the U.S. attorney's homicide section.

The D.C. public defender's office declined to comment. The defense could ask the entire appellate court to review the case. Jenkins, now 41, is scheduled to appear at a hearing this week before Winston.

Perhaps no one welcomed the ruling more than Gehrke, who has lived her cousin's case for the past six years.

"It looks to me," she said, "like he may become a hero after death because this case is going to set such a precedent."