The Crime That Never Happened

May 21, 2012 - by Liz Porter

Farah Jama

Farah Jama (L)

Farah Jama, a 21-year-old Somali immigrant in Australia was convicted – based on contaminated DNA evidence – of raping a woman he had never met at a bar in Melbourne he had never been to. His exoneration, after 16 months in prison, led to important reforms in how DNA material is collected from rape victims. 

by Liz Porter

All over the world, young men sometimes still go to prison for crimes they didn't commit. But in 2008, in Melbourne, Australia, a 21-year old Somali-born student went to jail for a crime that didn't even happen. This unlucky young man was not the victim of police corruption or manufactured evidence. Instead, he was convicted by a piece of forensic evidence produced in a one-in-a-million “CSI moment:” the kind of improbable, but theoretically possible scientific episode that only a scriptwriter for the famous CBS series might dream up.

Sadly for Farah Jama, his “CSI moment” was real. It happened at Melbourne’s Austin Hospital, one of several in the city with suites of rooms where rape victims are taken for forensic examination.

It was here, in the early hours of Saturday, July 15, 2006, that an agitated young woman was waiting for the on-call forensic doctor to arrive and examine her. There was a sticky-looking substance in her hair: male ejaculate from a sexual encounter she’d been involved in a few hours earlier. The episode, involving oral sex, had not been romantic. But the girl hadn’t been  raped. A girlfriend had urged her to pursue a rape allegation, but she later withdrew it.

As the young woman paced up and down, her hair was shedding tiny, invisible fragments of male DNA. These unseen flecks floated in the air, some near a trolley holding swabs, slides and other equipment. One tiny fragment landed in an open box of slides. It sat there, a microscopic forensic time bomb, waiting to go off.

Just over 24 hours later, the same forensic doctor returned, having been called in to examine another patient. As the woman lay down on the bed next to the trolley, the doctor opened the box of slides, unaware that at least one of them was already contaminated with male DNA. With a gloved hand she took a sample from the woman and dabbed it on to the slide. She then sealed the slide in an evidence bag, and handed it to the waiting police.

Four months later, that tiny forensic bomb exploded.

It was the morning of Tuesday November 14, 2006, the last week of the high school final year exams across the state of Victoria (of which Melbourne is the capital). Farah Jama's classmates were in a panic over that afternoon's test papers. Jama would have given anything to change places with them.  At 7:50 a.m., the 19-year-old had opened the front door of his family home in the inner northern Melbourne suburb of Preston to find three grim-faced police officers on the doorstep. From that moment on, mere school stress seemed like an enviable childish indulgence.

The lead detective introduced herself as Karen Porter and said she wanted to ask him about an alleged sexual assault that had happened four months earlier at a nightclub called Venue 28, in the comfortable middle-class suburb of Doncaster, some nine miles (15km) away.

Melbourne, with its four million inhabitants, is a city of many villages. Jama insisted that he had never heard of the club and had never even been to Doncaster, a suburb where any non-Australian born residents tend to come from Europe or Asia. For him, the place might have been another universe. Somalis just didn't go there.

The detective told Jama he was being arrested and would be taken to a police station for a formal interview about the attack. She asked if he wanted to contact a lawyer, but he declined. He didn't need one, he said. After all, he had done nothing wrong. On the way to the Doncaster police station, the detective stopped and pointed out the nightclub entrance. Again, she asked Jama if he'd ever been to the club. Again, he told her: "Never in my life."

Jama's mother had followed him to the police station and while she waited anxiously in the reception area, he was led to an interview room where he was shown a picture of a 48-year-old woman who'd been found unconscious in a toilet cubicle at Venue 28.

A forensic examination of this woman had uncovered male DNA, matching his. Jama told police he had never seen the woman and could not understand how his DNA could have been found on her. He was subsequently charged with rape.

 

Farah’s story

Until police came to his door, Farah Jama looked like an Australian refugee success story. Born in war-torn Somalia, he was 3-years-old when his family fled to Kenya where they spent seven years in a refugee camp. With his parents and four siblings, he migrated to New Zealand, where he had his first formal schooling, and then to Australia, in 2000. In July 2006 he was doing his final year of high school at Peter Lalor Secondary College. He enjoyed cricket, basketball and going out, but, as a Muslim, did not drink alcohol.

His life began to change on Friday, July 14, 2006. That night, with two friends, he went to a pool hall only a mile or so (a few kilometers) from his home and met up with two girls his own age. Against her companion's advice, one girl went off with the boys. Jama told her he didn't believe in premarital intercourse but he did engage in other sexual activity with this young woman in the back seat of a friend's car. Afterwards, Jama recalls, she said goodbye "like a normal person." But later that night, perhaps out of guilt or shame, she gave a different account of the evening to her friend. Believing her to have been the victim of unwanted advances, the friend urged her to call the police – and she did.

The police took the young woman to the emergency department of the Austin Hospital, where the Centres Against Sexual Assault (CASA), a government-funded support and advocacy group for victims of sexual assault, maintains Northern CASA, one of its 16 crisis care units in the state of Victoria.

Shortly before 4 a.m., the young woman was ushered into the unit's examination room where Dr. Nicola Cunningham, then a registrar at the Victorian Institute of Forensic Medicine, swabbed any areas of her body the young woman said had been touched, dabbing the swabs onto slides for later DNA testing. Cunningham also cut a section of her patient's hair – matted, she noted, with a "sticky substance."

Following up on the allegations, police called on Jama. He denied he had coerced the young woman, but agreed to give a DNA sample. Police also interviewed his friends, whose accounts of the night supported his. Some days later, when police revisited the young woman, she withdrew her complaint. But Jama's DNA sample was already in the police forensic lab's system, awaiting profiling: Victorian state law allows a DNA profile from a person not eventually charged to be kept for a year before being destroyed.

 

The Scene of the Crime

Twenty-four hours after Jama's night at the pool hall, in a suburb just six miles (10 kilometers) away, a 48-year-old woman was dressing up in black slacks, a spaghetti-strapped top and a sequined cardigan, ready for a night out. With her sister-in-law and a male friend, she was off to the over-28s Doncaster nightclub, Venue 28.

Before going inside, the trio had drinks in their car, with the 48-year-old sipping her way through three larger-than-standard shots of the hazelnut liqueur Frangelico. The club's front-door surveillance showed the group arriving at 10:20 p.m.  Half an hour later, at 10:50 p.m., a female security guard spotted a woman's leg protruding from under a door in the ladies' toilets. The cubicle door was locked. Inside, the 48-year-old woman was slumped on the floor. The zip of her pants was undone and she had vomited.

An ambulance took her to the Austin Hospital. There she lapsed in and out of consciousness; a blood test taken two hours after her last drink measured her blood-alcohol level at 0.13 per cent, nearly three times the legal driving limit. She had been taking several prescription drugs, including Tegretol, as a treatment for her bipolar affective disorder. This particular drug-alcohol combination, a toxicologist later testified, could cause blackouts without any extra assistance. In the emergency room, the woman had told the attending doctor that her alcohol intake alone could not have caused her condition. Instead, she wondered if she had been the victim of drink spiking and, as a consequence, sexual assault.

An examination was called for. At 10 a.m. on Sunday, Dr. Nicola Cunningham was paged back to the Centres Against Sexual Assault's suite at the Austin Hospital. She took samples from the 48-year-old before bagging the woman's black slacks for later analysis.

On the following Friday, July 21, police scientist Deborah Scott examined the swabs and the slacks at her lab bench in the forensic biology section of the Victoria Police forensic services centre. She could detect no semen on the pants, but one of four vaginal swabs returned a result: a tiny sample of one intact sperm and 15 fragments. Such a minuscule amount was odd for a rape, given that no sperm was found on the woman's clothing, since the average ejaculate contains over 40 million sperm. The discovery of sperm was nevertheless interpreted as confirmation that sex had taken place. The woman's unconscious state made the sex, by definition, a rape.

 

The Computer Match

The woman's sample was DNA profiled and placed on the Victoria Police database. In the meantime, the original sample of DNA that Farah Jama had volunteered to police was working its way through the system backlog. It finally landed on the police DNA database in November 2006. There, the computer routinely ran Jama's profile against all the crime scene profiles on the database. This time it came up with a match: Jama's DNA was the same as the DNA recovered from the woman at the Venue 28 nightclub.

With the DNA evidence pointing to Jama, police continued to investigate, looking for further evidence that he had been at the nightclub. Detectives scanned Venue 28's surveillance camera footage. There were some time gaps in its coverage, but all the patrons were white and well over 28 and neither staff nor the victim had seen Jama or any other young black men. Police checked the toilet cubicle walls but did not find his fingerprints. Phone records, traffic camera fines and parking infringement notices all failed to yield any evidence of Jama visiting the Doncaster area on that night – or any other.

Yet somehow his DNA had shown up in the 48-year-old woman's forensic sample. He was charged with rape.

Still, the events of that night in the club raised questions. Only 30 minutes had passed between the woman's 10:20 p.m. arrival and the discovery of her in the toilet cubicle. In that time, she recalled buying two Frangelicos on ice, stopping at a table to light a cigarette, and talking to two "European"-looking men, one of them "a bit sleazy." Then she had come to, lying on the floor, with people standing around her.

Who was this predator who, in so few minutes, had spiked a woman's drink, waited for her to lose consciousness, dragged her into a cubicle, locked it and then escaped by climbing over the side? He had certainly been strong, given that three male security guards had been needed to carry the comatose woman out of the toilets. There were 800 people in the club that night, with a procession of women visiting the toilets where the victim was found. How could the teenage suspect have carried out this crime?

Detective Karen Porter heard a faint warning bell. Might there have been a problem with the DNA evidence? She knew Jama had been named in a complaint that had been filed the night before the nightclub incident, and that the two samples would therefore have been processed in the police laboratory at around the same time. Could one of them have somehow contaminated the other? Her query was passed to the police forensic science lab. But the reply was quick and certain: the samples had been examined at different times, in different areas and by different people.

That response was the end of the matter.

 

The Trial

Farah Jama walked into his local police station, where he had to report in as part of his pre-trial bail conditions. "Oh, you're the rapist," said an officer at the desk. Jama felt his face burn with shame. Nobody believed him, except his family. While his school friends had gone on to their tertiary courses, he was now working in a carton factory and doing a Saturday job in a Somalian restaurant.

The trial began on Monday July 14, 2008, with Jama represented by two experienced Melbourne criminal lawyers, solicitor Michael Gleeson and barrister Ian Crisp. The first witness was the "complainant." By now 50, and in a respected professional occupation, she had waived her rights to a closed hearing. Later, her "victim impact" statement revealed that her belief that she had been raped had led her to feel "shame, rage and unrelenting guilt" – reactions often reported by rape victims. Police scientist Deborah Scott then presented the DNA evidence and told the court that there was no possibility of a contamination. Detective Karen Porter confirmed details of Jama's arrest and the court heard his interview with police.

Farah Jama's three alibi witnesses were all destroyed in cross-examination – an experience that can make highly qualified experts look like bumbling fools. An interpreter presented the evidence of Farah Jama's father, Abdulkadir Jama Osman, who had been in ongoing poor health since he was shot, beaten and tortured in Somalia. He testified that he had been gravely ill on the night of the offence, and said that his son had been with other family members, reciting the Koran at his bedside.

The jury watched as prosecutor George Slim ridiculed the man for providing only a $12 chemist's receipt for medication as proof of his parlous condition on the night of July 15. A newspaper would later report this evidence as: "Rapist used his dying dad." After the five-day trial, Jama stood up in the dock to hear the jury's verdict. At the word "guilty" his legs went numb and his body felt so weak he was sure he was going to collapse.

Sentencing Jama to six years in jail, Judge Paul Lacava was scathing. He told Jama his chances for rehabilitation were slim as he had shown no remorse. "You raped her when she was in a most vulnerable state,'' the judge said.  "You obviously saw her and sized up the situation. Instead of assisting her ... you raped her for your own immediate and short-lived sexual gratification.''

 

The Fight for Justice   

After the verdict, Jama's lawyers lodged an immediate appeal on the basis that the judge had misdirected the jury. But his mother, Anab Jusuf, a volunteer parent adviser in Melbourne’s Somali community, wanted more. In late 2008, she sought out lawyers Kimani Boden and Hina Pasha. In 2002, the duo had made headlines by winning a David and Goliath battle in the state’s Supreme Court. They had taken on a stockbroker represented by a giant legal firm and had won their small-investor client damages of more than $1 million. "I wanted to investigate," Boden recalls, "because (Farah's) case just didn't make sense."

The lawyer first requested the file on the first complaint against Jama. Amazingly, neither Jama's first team of lawyers nor the prosecutors had examined this file as part of their pre-trial preparation. If the prosecution had read it, they might have wondered why a teenager who passed up the opportunity for full sex with a willing partner on a Friday would then rape another woman the following night. If the defense had subpoenaed it, they would have discovered the information that would later free their client. But Kimani Boden's request for this file was refused, on the basis that it was a police investigation and not a completed file.

Boden then applied for the original samples taken from the supposed victim, sending them for re-testing with an independent DNA expert. When this scientist could not replicate the police lab results, Boden decided to make a bail application, pending Jama's appeal. By now preparing their case against bail, Victoria’s Office of Public Prosecutions' lawyers finally studied the file on the first complaint against Jama. At last, they found the forensic "smoking gun": both Jama's "victims" had been examined in the same place and by the same doctor, and only a day apart.

At the bail hearing on November 16, 2009, the Office of Public Prosecutions' Brett Sonnet agreed to bail and an appeal was set for February. Surprised but delighted, Boden knew the prosecution lawyers were worried about their case. On November 25, the Office of Public Prosecutions (OPP) told the Victorian Institute of Forensic Medicine that they believed that a contamination had happened at the point of the collection of the nightclub victim's sample. The OPP suddenly brought the appeal date forward. On December 7, at a Supreme Court hearing organized with three days notice, the OPP told the court of the high likelihood of a contamination, and Jama was acquitted. He had already served 16 months of his six year jail sentence.

The “DNA moment” which caused Farah Jama's DNA to end up in the 48-year-old victim's sample was eventually documented in a forensic institute report. The night she visited the Austin Hospital’s CASA unit, the young woman who was examined after she had had sexual contact with Farah Jama would have been continually shedding tiny, invisible fragments of Jama's DNA from the dried semen in her hair. Some would have landed on the trolley holding swabs, and in an open box of slides.

The CASA suite was supposed to be cleaned after each use, with the trolley's "disposable items" thrown out and the trolley restocked. At the time, the unit was seeing an average of one victim a fortnight and a cleaner would usually have visited again before the next client arrived. But on this occasion, it didn't happen. Just a day later, when the nightclub "victim" was examined in the same place, the forensic doctor most probably picked up a slide contaminated with Jama's DNA and used it to store one of the 48-year-old's samples.

 

Who Was to Blame?

The Queen v. Farah Abdulkadir Jama will go into legal textbooks as a spectacularly failed test case for a prosecution based on DNA alone. In July 2010, Victoria’s Attorney General Rob Hulls personally apologized for what had happened. A scathing report into the case by retired Supreme Court judge Frank Vincent slammed the repeated failures of police and prosecutors to scrutinize what had been glaring improbabilities in their case, and their failure to heed the "ample warning signs ... that something was amiss."

All around the world, juries are routinely accused of vulnerability to the "CSI effect," in which they are excessively swayed by any forensic evidence. But in this case, it was also police and prosecutors who saw the DNA evidence as possessing, as Justice Vincent put it, "an almost mystical infallibility that enabled its surroundings to be disregarded". He summarized the events thus: "It is almost incredible that, in consequence of a minute particle, so small that it was invisible to the naked eye, being released into the environment ... a chain of events could be started that culminated in the conviction of an individual for a crime that had never been committed by him or anyone else, created immense personal distress for many people and exposed a number of deficiencies in our criminal justice system. But that, I believe, is what happened."

Neither the detectives, the police scientists, the prosecutors, nor even the original defense team thought to raise the possibility of a contamination at the point where the DNA had been collected. And there were no regulations in place to help them – no automatic protocols to be pursued in the event of a contamination query, such as the tracing of each sample back to its source.

Nobody thought to share the query with the Victorian Institute of Forensic Medicine, which runs the roster of forensically trained (and mostly female) doctors who do all examinations of rape victims. Nicola Cunningham, the registrar who took DNA samples from the woman found unconscious in the nightclub, was one of them. If the institute had been asked, at the time, about a possible contamination of the DNA evidence, its director, Professor Stephen Cordner, later told Justice Vincent, it would have automatically traced all the tested materials. This procedure would have revealed that both samples had been taken in the same place, by the same doctor within a 28-hour period, setting off an alarm bell that could not have been ignored.

While Frank Vincent's report reserves its harshest criticisms for the Office of Public Prosecutions, the actual apologies came from other sources. When the news of the miscarriage of justice broke, Stephen Cordner faced the press alone and was therefore seen to be accepting sole responsibility. He also later acknowledged that his institute was part of the system that caused so much suffering. "We are very sorry for our part in what happened and the hurt that it caused."

Farah Jama's original defense team would not comment on the case for this report, beyond saying that "everything that could be done, was done". For her part, CASA convener Carolyn Worth admitted that the CASA crisis units' cleaning regimes "have not been as rigorous as they should be." Rob Hulls, the Victorian Attorney General at the time, also pledged that no future cases would be run on DNA evidence alone.

In the meantime, the changes to forensic procedure recommended in Frank Vincent's report have been implemented, including the introduction of sealed pre-packaged "rape kits." Forensic medical officers have adopted the recommendation that they, rather than hospital staff, take responsibility for the cleaning, before and after use, of the equipment trolleys used in forensic examinations in CASA units. A Victoria Police spokesman says the implementation of the Vincent report's recommendations mean that a mistake like that made in the Jama case will not occur again.

 

Doubts Remain

The case leaves lingering doubts about the Victorian justice system, especially in the area of sex crime prosecutions, and it also serves as a reminder of the dangers in any case in any country where a jury is faced with the task of choosing between the testimony of an educated middle-class victim and the evidence of defense witnesses with negligible English-language skills.

Kimani Boden and Hina Pasha see their client as a victim of subtle, systemic prejudice. They can see no other explanation for police and prosecuting authorities' selective blindness to the warning signs that should have flashed at several stages in this case, and in the collective failure to ask the sort of questions that could have stopped the prosecution before it began. "This would not have happened to a boy from Brighton (an affluent Melbourne suburb with no immigrant population)," they say.

They also point to an "over-zealousness" in the prosecution of sexual assault allegations, an ongoing reaction to the "bad old days" of police reportedly not believing claims of sexual assault.

Finally, it must be remembered that Farah Jama went to jail as a result of a prosecution based on a forensic contamination that happened when a Victorian Institute of Forensic Medicine doctor conducted an examination in a room over which her organization had no control. The institute continues to have serious reservations about forensic examinations being carried out in CASA units, set up as places of comfort and support, not centers of forensic excellence. It wants such examinations held at two central locations, under conditions it can monitor. Frank Vincent suggested that this change be considered. But CASA is resisting, arguing that this will discourage victims from reporting, and, as Carolyn Worth attests, the Victorian government wants to encourage more women to report sexual assault. This important forensic conflict remains unresolved.

 

The Future

Now, more than two years after his release, Farah Jama is beginning to rebuild his life. During 16 miserable months in jail he endured repeated flashbacks of the moment he was pronounced guilty. He didn't tell other inmates that he was in for rape – rapists were at the very bottom of the prison pecking order so he lived in fear of being "outed" by prisoners who had been with him at Melbourne’s Metropolitan Remand Centre, where he was first "processed." There guards had called him a "black bastard" when they saw "rape" on his paperwork.

The $550,000 he received from the Victorian government for compensation and legal costs has also provided him with some kind of finishing point for his terrible experience.

DNA: The Basics

DNA (or deoxyribonucleic acid) is a double-stranded molecule in the nucleus of most human cells, and is often described as "the blueprint for life." Different areas on the long DNA strand carry the code or "gene" for human characteristics, such as heart function, or inherited variations such as hair color. Criminal investigators look at the areas on the DNA that don't appear to code for anything, but which vary widely between individuals – with the exception of identical twins, who have the same DNA.

Australian forensic DNA tests sample nine of these areas, known as "loci." (In the United States, the FBI uses 13 loci.) Each "locus" has two genetic markers, known as "alleles." Together they produce nine pairs of numbers –an 18-number DNA profile, easily compared with others on a computer data base. Samples of blood, semen, hair or skin left at a crime scene are sent to the police lab, where the DNA is extracted and profiled. It can then be compared to a suspect's profile –extracted from cells and saliva swabbed from the mouth. If two profiles "match," the chance of them being from the same person is statistically analyzed, leading to conclusions such as, "The likelihood was one in (say) 64 million that some other person chosen at random from the Caucasian population left that DNA." Juries are regularly asked to consider these odds.

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