Double Trouble: When Identical Twins Run Into the Law

Last night, Law & Order: SVU did that “ripped from the headlines” thing where they borrow elements of real-world criminal cases or address current issues in law enforcement. The episode, “Double Strands,” revolved around a topic I've been reading a lot about lately: twins.

[Spoilers Ahead!]

The plot involves a serial rapist and his identical twin brother, who is falsely accused of the crimes. The SVU detectives eventually figured things out, but real-world police have had a lot of trouble with identical twins in several high-profile cases. DNA evidence — a tool that’s supposed to help convict the guilty and exonerate the innocent accurately and efficiently — has complicated cases where a twin or twins have been involved. This is because identical twins are the result of a single fertilized egg that formed one zygote, which then divided into two separate embryos. The siblings have nearly identical DNA, and we've yet to figure out how to discern one twin from the other using DNA analysis.

[End Spoilers]

The Headlines From Which The Story Was Ripped

One summer night in 2001, Darrin Fernandez attempted to break into an apartment in Boston’s Dorchester neighborhood. When he smashed a window to get inside, he not only alerted the person who lived in the apartment, but also cut himself deeply on the jagged glass. He fled, and police soon found him, still bleeding, as he tried to escape.

When the police analyzed DNA from the broken glass and from Fernandez, they found that he was a match for genetic material recovered in two unsolved sexual assaults cases, both of which were committed within a few blocks of the apartment Fernandez had tried to break into.

Fernandez was convicted of attempted breaking and entering at the apartment. He was also eventually convicted of one of the sexual assaults, for which there was plenty of evidence that implicated him, including the victim noticing a tattoo that his brother did not have (in the SVU episode, both twins have a similar tattoo in the same place). The police and prosecutors could not confidently put the second assault on him, though. The DNA match was the only substantive evidence that they had to go on, and it turns out that it also matched a second person: Fernandez’s identical twin brother, Damien.

There were no witnesses to the assault, no accomplices to roll, and no fingerprints at the scene. Darrin didn’t have an alibi to cover the time of the assault, but neither did Damien. The police couldn’t place either brother at the scene of the crime and the DNA that damned Darrin in another trial had only established reasonable doubt in this one. The case went to trial anyway and after four days of deliberation, there was a hung jury and a mistrial.  In a second trial several months later, the prosecution’s case rested heavily on the fact that Darrin worked as a painter near where the assault occurred, and he had the opportunity to case the neighborhood. Again, the jury was hung and a mistrial was declared.

In 2006 Fernandez went to trial a third time, and prosecutors were allowed to present for the first time evidence that he had committed four break-ins in the victim’s neighborhood within a year (and had been convicted of a similar sexual assault in one of those instances). The victim of that assault, who had not testified at the previous two trials, also took the stand this time around to highlight the similarities her attack shared with this case.

The jury returned a guilty verdict and, five years after his initial arrest, Darrin Fernandez was sentenced to 15 to 20 years on top of 10 to 15 year sentence he was already serving for the first assault.

Police and prosecutors in Grand Rapids, Michigan, may have had it even worse. In 1999, presented with DNA evidence in the rape of a college student, they couldn’t figure out which of their twin suspects to even charge with the crime.

Like the Fernandez cases, there were no witnesses and no fingerprints. To complicate matters, the suspects in this case, Tyrone and Jerome Cooper, both had records for sexual assault (Tyrone assaulted a 10-year-old girl in 1991 and Jerome a 12-year-old girl in 1998).

After hiring a biotechnology company to check some 100,000 DNA characteristics to match one twin or the other to the recovered evidence, the police came up empty. They could only tell both twins that the case would be not be forgotten and would get worked until the statute of limitations prevented prosecution.
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Twins make the justice system work even harder when they’re attached to each other, literally. If a conjoined twin commits, and is convicted of, a crime, how do you punish them without also unjustly punishing their innocent sibling? Slate’s Daniel Engber and legal scholar Nick Kam have both looked at the available historic cases and suggested possible solutions to the problem.