Ricardo G. Federico In The News

New Brunswick twins identical DNA made for difficult conviction in deadly home invasion


FEATURED: National Post | WRITTEN BY: Adrian Humphreys  July 03, 2013

New Brunswick twins identical DNA made for difficult conviction in deadly home invasion

Bradley Saia- Courtesy of the St. John Police.

Police investigating a deadly home invasion in New Brunswick found key evidence on gloves and a mask linked to the crime — DNA that can pinpoint a culprit with scientific certainty; except in this case, where it led to twin brothers with identical DNA, prompting a courtroom conundrum where science could not reveal which brother it came from.

A Saint John jury decided the fate of Brandon and Bradley Saia Wednesday, knowing the hallowed science they might have seen on TV had failed them.

The Saia brothers, both 22, sat side by side in the prisoner’s dock for more than a week. They have the same haircut, same style of facial hair and, although Brandon’s face is a bit thinner and he stands an inch shorter than his brother, the pair have the unmistakeable sameness of twins.

The jury could see their physical similarities, but also heard of their genetic closeness as well, making for a case that might forge legal precedence on the issue of genetic identity.

“The DNA is not of any assistance here because it is uncertain if it was from one brother or the other — or from both. They can’t tell from the DNA who did what,” said Peter Corey, a lawyer representing Bradley Saia.

“These two really are truly identical. They look the same, have the same build, same facial features and their DNA is the same. I was told this was the first case like it in Canada.”

Court heard from DNA experts that genetic testing on blood samples of the brothers could not tell them apart.

atherine MacEachern, an RCMP DNA analyst who worked on the DNA samples, testified that DNA found on a bandana and two sets of gloves matched both of the accused men, but tests could not determine whether it was from both brothers or only one, nor which one that might be.

“They don’t have the technology to get deep enough to tell them apart. Maybe some day they will, but not now,” said Mr. Corey, on the prospect of Canadian forensic laboratories differentiating between genetic profiles of monozygotic twins, typically called identical twins.

Despite the unusual circumstances, the case did not rest entirely on DNA evidence; other evidence, including eyewitness accounts, was also presented.

Crown prosecutor Jill Knee told court that a brother’s presence at the scene was not necessary for a conviction since witnesses said both brothers were involved in the planning.

The trial stemmed from a nasty home invasion in Saint John last November.

Court heard that five men burst into an apartment wearing masks and gloves. During the attack, the victim stabbed one of the attackers to death. Police arrested four suspects; two have pleaded guilty. The Saia brothers were the remaining two accused.

Police found items that witnesses linked to the crime at someone else’s home and from them drew the DNA that was supposed to be compelling evidence at trial.

Despite the scientific uncertainty, both men were charged with theft with a weapon, forcible entry and having their faces masked while committing an indictable offence.

The case highlighted the often-mentioned but largely theoretical situation that has become a standard caveat at trials dealing with the science of identifying suspects based on DNA; experts and judges routinely say that, “except for identical twins,” no two people have the same DNA.

In some criminal trials, an accused’s mother has been called to the stand solely to testify that the person on trial did not have an identical twin.

In this case, such evidence wasn’t needed. The two men do not seem to try hard to look different from the other.

“Identification was a problem for eyewitnesses as well,” said Mr. Corey.

On Wednesday, a jury heard its final instructions from the judge and, after a day of private deliberations, returned in the evening with a guilty verdict for both of the twins.

Legal scholars will be studying the decision.

“It is a rare occurrence,” said Ricardo Federico, a defence lawyer in Toronto and adjunct professor of forensic evidence at Osgoode Hall Law School. “Can it raise reasonable doubt? The issue of identity is crucial at trial. A person’s identity must be proven beyond a reasonable doubt.”

Can it raise reasonable doubt? The issue of identity is crucial at trial. A person’s identity must be proven beyond a reasonable doubt
He said prosecutors sometimes joke that DNA stands for Do Not Acquit because of the sense of scientific certainty it hands a jury. A case such as this makes Mr. Federico retort that a better acronym might be Do Not Assume, he said.

While the DNA of twins causing confusion in criminal cases is rare, the prospect is not unique.

Earlier this year, police in France hunting a serial rapist used DNA evidence to arrest two men, but were unable to say which was the culprit because both of them were a genetic match.

In Alberta, a pair of twins named Karl and Kyle Strongman stood in for one another at court appearances, even entering pleas on behalf of a sibling before unwitting judges. Karl was eventually convicted of manslaughter in 2007, assuming the right one was sent to jail.

Identical twins in Germany escaped charges in a jewellery heist when police could not determine which brother’s DNA was found in a latex glove at the scene.

National Post