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September|October 2005
The Prudent Jurist By William H. Simon
Evil Twins By John Wolfson
Elder Counsel By Louisa Lombard
U-Hell By Nicholas Hengen
Torture, Inc. By Tara McKelvey
Was the Plant a Plant? By Demian Bulwa
Cases & Controversies

Evil Twins

And how DNA evidence is useless against them.

By John Wolfson

BACK IN THE SUMMER OF 2001, Darrin Fernandez slashed himself on the jagged glass of a window he shattered while trying to break into an apartment in the Dorchester neighborhood of Boston. A woman watching television inside called the police, who made it to the building in time to arrest Fernandez, still bleeding in the yard as he tried to escape.

When investigators ran his DNA through a database, they found it to be a perfect match for the genetic material recovered from two unsolved sexual assaults, each of them committed within a few blocks of the attempted breaking and entering, and each carried out in the same fashion: a man creeping through a window and raping a woman who had been sleeping inside. Fernandez was found guilty of attempted breaking and entering for shattering the window, and eventually he would be convicted of one of the two rapes. The second rape, however, has presented prosecutors with an unexpected challenge.

The DNA match was the only substantive evidence that prosecutors had in the case. Under normal circumstances, that would likely have been enough—the DNA match should have made it billions-to-one that anyone other than Fernandez was guilty of the assault. But the DNA turned out to be a perfect match for two people: Darrin Fernandez and his identical twin, Damien.

DNA testing convicts the guilty and exonerates the innocent with unprecedented efficiency and accuracy. Yet in the rare case of identical twins—who make up about four-tenths of 1 percent of the population—a genetic match can be as much a hindrance as a help. Identical twins are born with exactly the same genes and, despite ongoing efforts by biological researchers, it remains impossible to discern one twin from the other using DNA analysis. "Everyone thinks DNA clears things up," Robert Zanello, Darrin Fernandez's lawyer, said recently. "But it has muddied the waters."

Over the course of two trials, Zanello's message to jurors has been quite simple: Damien Fernandez was as likely as Darrin Fernandez to have slipped through the window and committed the rape. The Suffolk County District Attorney's Office has nothing to link Darrin to the crime other than his DNA, no eyewitnesses, no accomplice, not even a fingerprint (which could have made a difference, since identical twins have different prints). And the DNA doesn't prove anything except that either twin could be guilty. Darrin doesn't have an alibi for his whereabouts at the time of the rapes, but neither does his brother. Damien, proclaiming his innocence, has testified that he was living in other cities at the time of the rapes, but neither he nor prosecutors have been able to account for his whereabouts on the night of the crime. "You can't put my client any closer to the crime scene than you can put the brother," Zanello said.

Rather than establishing Darrin Fernandez's guilt, genetic testing helped him establish some very reasonable doubt. After deliberating for four days, the first jury to consider the case gave up. Judge Elizabeth Donovan declared a mistrial. Eight months later, the Suffolk County D.A. tried Fernandez again. This time, Assistant District Attorney Mary Kelley took jurors to the Dorchester house where Darrin Fernandez had worked as a painter. Kelley argued that from that house, atop a ladder, Fernandez was able to case the neighborhood and select his victims. But if the visit to the scene of the crime convinced some jurors of Darrin's guilt, it did not persuade them all. Like the first, the second trial ended in a hung jury.

FOR ALL THE TROUBLE THE BOSTON AUTHORITIES have had prosecuting Fernandez, their counterparts in Grand Rapids, Mich., have had it even worse. They can't figure out which of another set of identical twins to charge with the 1999 rape of a young woman in a parking lot.

That case had gone unsolved until last year, when one Jerome Cooper, serving a five-year sentence for breaking into a home and fondling a woman, became eligible for parole. In Michigan, parole applicants are required to submit a DNA sample to be run through a database of open cases. Cooper's sample came back as a match for DNA recovered from the parking lot rape.

"I thought, 'Great, we've got our guy. He's in prison, better yet. We don't have to hunt him down,' " said detective Les Smith of the Grand Rapids Police Department. "Then it turns out he has a twin brother, Tyrone." As in the Fernandez case, there is no significant evidence in the Cooper case aside from the DNA. The victim was attacked from behind and could not provide an identification, and no fingerprints were left at the scene. Further complicating matters, both Jerome and Tyrone Cooper have prior sexual assault convictions. "You don't know who you can charge," Smith said. "Both were out of prison at the time. And it's getting hard to go back and ask somebody, 'Give me an alibi for what you were doing five years ago.' They just say it's not them."

Given the uncertainty, Smith contacted the parole board and asked them to reject Cooper's petition for early release. The board agreed, and Cooper's request was denied. As for Tyrone Cooper, he too is currently imprisoned, for failure to register as a sex offender. He would have been eligible for parole in July, but Smith got in touch with the parole board, which again refused to release a Cooper. Knowing that one of the brothers is guilty of the rape, Smith said that his department intends to do what it can to keep each of them in prison "until the technology catches up."

The technology is trying. Identical twins occur when a fertilized egg splits, producing two embryos with the same DNA. Yet some researchers believe that the genes of the individual embryos undergo tiny, unique mutations after the egg splits. If that is true, scientists might be able to create a test that could tell the difference between twins by identifying the distinct mutations.

Orchid Cellmark, a New Jersey-based company that specializes in helping states solve crimes using DNA analysis, offered to try to devise such a test to help Grand Rapids police solve the Cooper rape case. The company's researchers ran up against the limits of existing science, however, and the project ended unsuccessfully. "At this point, we've exhausted the capabilities that are currently available," said Robert Giles, Orchid Cellmark's director of United States operations. "It's basically a hypothesis that [the mutations] exist." If they do exist, Giles predicts that the technology to detect them may be available in a couple of years. The breakthrough would help close the several serious criminal cases involving twins (experts estimate there are between 3 and 10 such cases annually) as well as a similar number of paternity disputes in which twins both deny parenting a child who carries their DNA.

For now, the Suffolk County D.A. will have to find another way of convincing a jury that Darrin, and not Damien, Fernandez committed the second rape. The D.A.'s office has declined to comment, given the pending prosecution—Darrin's third trial begins in September—so it's unclear what new approach, if any, prosecutors might try. But it is safe to say that the D.A.'s office wishes it had another piece of physical evidence, something to poke a hole in Zanello's contention that either twin could be the guilty party. Something, perhaps, like the evidence the D.A. had in 2003, when it successfully prosecuted Fernandez for the first Dorchester rape. Zanello argued at that trial as well that the DNA implicated Damien as much as Darrin. The jury might have believed him then, too, had the victim not been able to positively identify the tattoo that adorns Darrin's forearm. It reads, "Twinz."

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