COMMONWEALTH OF MASSACHUSETT S

SUPREME JUDIC IAL COURT

S U FFOLK COUNTY NO . SJC- 1 1 8 1 5

COMMONWEALTH

V .

TYRONE CLARK

BRIEF AND ADDENDUM OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES INNOCENCE PROGRAM,

NEW ENGLAND INNOCENCE PROJEC T , INNOCENCE NETWORK, AND MASSACHUSETTS ASSOCIATION OF CRIMINAL DEFENSE LAWYE RS

AS AMI C I CURIAE

L I SA M . KAVANAUGH BBO #64 7 2 6 1 Director lkavanaugh@publi ccouns e 1 . net

COMMITTEE FOR PUBLIC INNOCENCE PROGRAM 2 1 McGrath Highway Somerv i l l e , MA 0 2 1 4 3 T e l : 6 1 7 - 6 2 3- 0 5 9 1

DENISE MCWILLIAMS Executive Director NEW ENGLAND INNOCENCE PROJECT 1 6 0 Boylston Street Boston, MA 0 2 11 6 Tel : 6 1 7 - 5 7 0 - 1 9 8 4

CHAUNCEY B . WOOD , E S Q . BBO #60 0 3 5 4 Mas s a chusetts Associat ion o f Criminal Defense Lawyers WOOD & NATHANSON, LLP 2 2 7 Lewis Wharf Boston, MA 0 2 1 1 0 Tel : 6 1 7 -7 7 6- 1 8 5 1 cwood@woodnathans on . com

February, 2 0 1 5 .

IRA L . GANT BBO #67 8 7 0 6 Staff Attorney igant@publi ccounse1. net

COUNSEL SERVICES

THE INNOCENCE NETWORK 4 0 Worth Stree t , Suite 7 0 1 New York, NY 1 0 0 1 3 Tel : 2 12 - 3 6 4 - 5 3 7 0

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i i i

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I S SUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF INTEREST OF AMI C I CURIAE . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

.ARGUMENT

I . T H I S COURT SHOULD INTERPRET CHAPTER 2 7 8A IN A MANNER THAT ACCORDS WITH THE PLAIN LANGUAGE OF THE STATUTE AND ADVANCES THE LEG I SLATURE ' S GOAL OF FACILITAT ING ACCESS TO POST-CONVICTION DNA TESTING AS A FIRST STEP IN ESTABLI SHING INNOCENCE . . . . . . . . . . . . . . 1 1

A . Requiring Proof of a "Reasonable Possibility" that Biological Material is Pres ent Con f l i ct s with t he Plain Language of the S tatute and Frustrates Legi s lat ive Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3

B . The Motion Judge ' s Interpre tat ion of Chapter 2 7 8A Violates Wel l ­Estab l i s hed Princi pl e s o f Statutory Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6

I I . RE QU I RING PROOF OF A "REASONABLE POS S I B I L I TY" THAT BIOLOGICAL MATERIAL E XI S T S I GNORES THE REALI T IES OF MODERN FOREN S IC ANALY S I S AND IMPOSES AN INSURMOUNTABLE BURDEN ON DEFENDANTS SEEKING TESTING, AS TOUCH DNA AND OTHER TRACE B I OLOGICAL MATERIALS OFTEN CANNOT BE DETECTED PRIOR TO TESTING . . . . . . . . . 2 0

1 . DNA Analys i s of Touch DNA and Other T r a ce Biologi ca l Materials Has Produ ced Numerous DNA Exonerations . . . . . . . . . . . . . . . . . . . . . . 25

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2. The Law Enforcement Community Widely Recognizes the Uti l ity o f Touch DNA Testing in Cold Case Investigat ions . . . . . . . . . . . . . . . 3 0

CONCLUS ION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 4

CERT I FI CATE O F COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 3 6

STATUTES ADDENDUM . . . . . ... . . . . . . . .. . . . . . . . . . . . . . . . 3 7

AMI C I ADDENDUM . . . . . . . . . . ... . . . . . . . . . . . . . . . . . ..... 4 7

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TABLE OF AUTHORITIES

Cases

Brown v . Entertainment Merchants Ass ' n , 1 3 1 S . Ct . 2 7 2 9 ( 2 0 1 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0

Commonwealth v . Barb o s a , 4 5 7 Ma s s . 7 7 3 ( 2 0 1 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4

Commonwealth v . Bundy, 4 65 Mas s . 5 3 8 ( 2 0 1 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0

Commonwealth v . Jones , 4 1 7 Mas s . 6 6 1 ( 1 9 9 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3

Commonwea l th v . Linton, 4 5 6 Mas s . 5 3 4 ( 2 0 1 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2

Commonwea lth v . Lyku s , Sup . Ct . No . 7 3CR4 3 5 5 8 ( Feb . 1 0 , 2 0 1 5 ) . . . . . . . . . 1 2 , 2 1

Commonwealth v . Wade , 4 67 Mas s . 4 9 6 ( 2 0 1 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 , 1 1 -1 2 ,

1 4 - 1 6 Dist . Attorney ' s Office v . Osborne ,

5 5 7 u.s. 5 2 ( 2 0 0 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0

E a stern Mas s . Street Ry. Company v . Mas sa chusetts Bay Trans o . Auth . , 3 5 0 Mas s . 3 4 0 ( 1 9 9 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8

Harborview Res idents ' Comm . , I n c . v . Quincy Hous . Auth . , ,

3 6 8 Mas s . 4 2 5 ( 1 9 7 5 ) ; . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3

Loughrin v . United State s , 1 3 4 S . Ct . 2 3 8 4 ( 2 0 1 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9

N i v . S l o cum, 1 9 6 Cal . App . 4 th 1 63 6 ( 2 0 1 1 ) . . . . . . . . . . . . . . . . . . 3 0

Police Comm 'r o f Bos ton v . Cel i , 4 3 1 Ma s s . 4 1 0 ( 2 0 0 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3

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Statutes

G . L . c. 2 11 D , § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

G . L . c. 2 1 1 D , § 1 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

G . L. c . 2 7 8A, § 1 . . . . . . . . ; . . . . . . . . . . . . . . . . . . . . . . . 1 9 , 3 7

G . L . c . 2 7 8A, § 7 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pas sim

Ala . Code 1 9 7 5 § 1 5 - 1 8- 2 0 0 ( c) ( 1 ) . . . . . . . . . . . . . . . . . 1 5

Ariz . Rev . Stat . Ann . § 1 3 - 4 2 4 0 ( B ) ( 2 ) . . . . . . . . . . . . 1 5

Co lo . Rev . Stat . Ann . § 1 8- 1 - 4 1 3 ( 1 ) ( b ) . . . . . . . . . . . 1 5

Conn . Gen . Stat . § 5 4 - 1 0 2 kk . . . . . . . . . . . . . . . . . . . . . . 1 5

Ga . Code . Ann . § 5 - 5 - 4 1 ( 7 ) ( B ) . . . . . . . . . . . . . . . . . . . . 1 5

Haw . Rev . Stat . § 84 4 D- 1 2 3 ( b ) ( 2 ) . . . . . . . . . . . . . . . . . 1 5

I owa Code § 81 . 1 0 ( 7 ) ( a ) . . . . . . . . . . . . • . . . . . . . . . . . . . l5

Ky . Rev . Stat . Ann . § 4 2 2 . 2 85 . . . . . . . . . . . . . . . . . . . . 1 5

La . Code Crirn. Pro c . Ann . art . 9 2 6 . 1 ( C ) ( 3 ) . . . . . . . 1 5

Mas s . Crirn. P . 3 0 ( c) ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 , 1 8

Mich . Cornp . Laws Ann . § 7 7 0 . 1 6 . . . . . . . . . . . . . . . . . . . 1 5

Mont . Code Ann . § 4 6- 2 1 - 1 1 0 ( 5 ) ( a ) ( iii) . . . . . . . . . . 1 5

Neb . Rev . Stat . § 2 9- 4 1 2 0 ( 5 ) . . . . . . . . . . . . . . . . . . . . . 1 5

N . H. Rev . Stat " . Ann . § 6 5 1 -D : 2 ( I I I ) ( a ) . . . . . . . . . . 1 5

N . J . Stat . Ann . § 2A : 84A-3 2 a ( d ) ( 1 ) . . . . . . . . . . . . . . 1 5

Ohio Rev . Code Ann . § 2 9 5 3 . 7 4 . . . . . . . . . . . . . . . . . . . . 1 5

R. I . Gen . Laws § 1 0 - 9 . 1 - 1 1 - 1 2 ( c) . . . . . . . . . . . . . . . . . 1 5

S . C . Code Ann . 5 1 7 - 2 8- 9 0 ( B ) (1) . . . . . . . . . . . . . . . . . 1 5

Tenn . Code Ann . 5 4 0 - 3 0 - 3 0 4 ( 2 ) . . . . . . . . . . . . . . . . . . 1 5

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Tex . Crim. Proc . Code Ann . §§ 6 4 . 0 3 ( a ) ( l) (A) ( I) . . . . , . . . . . . . . . . . .. . . . . . . . . 1 5

Utah Code Ann . §§ 7 8 B- 9 - 3 0 0 - 3 0 4 ( 2 ) ( a ) . . . . . . . . . . . 1 5

W . Va . Code Ann . § 1 5 - 2 B- 1 4 ( f) ( 1 ) . . . . . . . . . . . . . . . 1 5

Wyo . S t a t . Ann . § 7 - 1 2 - 3 0 3 ( c ) ( ii ) . . . . . . . . . . . . . . . 1 5

Other Authorities

Balogh et a l, Fingerprints from Fingerprin ts, 1 2 3 9 Int ' l Congress S eries 9 5 3 ( 2 0 0 3 ) . . . . . . . . . . 3 1

Budowle , E i s enberg & van Daal, Vali di ty of Low Copy Number Typing and Applica t i ons to Forensic,Science, 5 0 Croatian Med . J . 2 0 7 ( 2 0 0 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1

J . But le r , Advanced Topics in Forensic DNA Typing: Methodology 10 - 1 4 ( 2 0 1 2 ) · . . . . . . . . . . . . . . . 2 4

· J . But ler , Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers 3 0 ( 2d ed . 2 0 0 5 ) . . . 2 1

J. But ler , Fundamen tals of Forensic DNA Typi n g 9 0 - 9 1 ( 2 0 0 9 ) . . . . . .. . . . . . . . . . ; . . . .. . .. . . . 2 4

Cupples et al, STR Profiles from DNA Samples With "Undetected" of Low Quan t i filer Results, 5 4 J . Forensic S c i . 1 0 3 ( 2 0 0 9 ) . . . . .. . . 2 4

Daly , Murphy & McDermott, Transfer of Touch DNA From Hands to Glass, Fabric, and Wood, 6 Forens i c Sci . Int 'l : Genetics 4 1 ( 2 0 1 2 ) . . . . . . 2 3

K . Davis , DNA Clears Man Convicted of Rape, U-T San Diego , available at http : / /www . ut sandiego . com/news / 2 0 1 3 / j un / 2 5 /dna­uriah-courtney-rape-innocence-pro j ect ( la s t v i s i t e d February 5 , 2 0 1 5 ) . . . . . . . . . . . . . . . . . . .. . . 2 8 , 2 9

R . Fourney , Nat'l DNA Databank o f Canada , Forens i c Laboratory Servi ce s , Forensic Reality and The Pract ical Experience of DNA Typi n g 5 ( 2 0 0 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3

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I nnocence Proj ect, Know the Cases : S t ephen Cowans, available at http / / www.innocense p roj e ct . o rg/Content/S tephen Cowans . php ( La s t vi s i ted February 5 , 2 ij

15 ) . . . . . ... . . . . . . . . 2 7

I nnocence Proj e ct, Know The Cases : Uriah Courtney, avai lable at http : / /www . innocencepro j e ct. org/Content/Uriah Cou rtney.php ( la s t vi s i ted February 5 , 2 0 15 ) . . . 2 8

I nnocence Pro j e ct, Pre s s Relea ses , Rochester Man To Be Freed 18 Years After Wrongful Murder Convi ction; DNA and Confession Lead

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to Actual Prepetrator (Ap r . 2 8 , 2 0 10 ) a va i l ab l e a t http : / /www . innocencepro j e ct. org/ new s / P re s s - Releases . php ( la s t vi s i te d Feb rua ry 4 , 2 0 15 ) . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 2 6

K . Johnson, 'Touch ' DNA Offers Hope in Cold Invest i gations, USA Today ( Sep t. 2 3, 2 0 0 8 ) , a vai lable a t http : / /usatoday30 . us a today . com/ tech/ s cience / 2 0 0 8 - 0 9 - 2 2 - touchdna N . h tml ( la s t vis ited February 4 , 2 ij15 ) . . . . . . . . . . .. . . . . 32

Kashyap , Cha ttopadhyay & Trivedi , DNA Profi l in g Technologies i n Forensic Analysis, 4 Int'l J. Hum . Geneti cs 2 2 ( 2 0 0 4 ) . . . . . . . . . . . . . . . 2 2

Katz & E ckholm, DNA Evidence Cl ears Two Men in 1983 Murder, NY Time s , Sept. 3, 2 0 14 , a t A1, avai lable at http : / /www . nytime s . com/2 0 0 4 / 0 9 / 0 3/us / 2 - convi cted- in-19 8 3-north-ca rolina-murder.-freed-a f te r-dna-te s t . h tml . . . . . . . . .. .... . . . . . . . . . . . . . . . . . . . . . . . . 2 7

N a t ' l I n s ti tute o f Jus ti ce , DNA for the Defense Bar 17 7 ( 2 0 12 ) . . . . . . . . . . . . . . . . . . . . . . . . . 2 2

Na t'l I n s ti tute o f Jus ti ce , Pos tconvic tion DNA Testing : Recommendations for Handling Requests 25 ( 19 9 9 ) . . . . . . . . . . . . . . . . . . . . . . ... . . . . 2 1

N a t'l I n s ti tu te o f Justice , Using DNA to Solve Cold Cases 7 ( 2 0 0 2 ) . . . . . . . . . 2 2 , 2 3, 31

Rudin & Inman , Introduction of Forensic DNA Analysis 17 ( 2 d ed . 2 0 0 2 ) . . . . . . . . . . . . . . ... . . . . . 2 1

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Salt zman & Ma cDaniel , Man Freed i n 1997 Shoo t i n g of Officer: Judge Gives Ruling After Fingerprint Revelation, Boston Globe ( Jan . 2 4 , 2 0 14 ) , a vailable at

http : / /www. boston . com/news / l o ca l /art i cl e s / 2 0 0 4 / 0 1/ 2 4 /man freed i n 19 9 7 shooting o f office r ( last vi s ite d Februa ry 4 , 2 0 1S) .� . . . .. . 2 7

J . Sewe l l e t a l , Recovery of DNA and Fingerprints from Touched Documents, 2 Forens i c S ci . Int ' l : Gene t i cs 2 8 1 ( 2 0 0 8 ) . . . . . . . 2 4

S iegel & Massing, A New Tool for Determining Factual Innocen t: Massach use t ts' Pos t-Conviction Access to Forensic and Scien t i fi c

'Analysis, 5 6 Boston

Bar J. ( Summer 2 0 12 ) , available at http : / /bostonbarj ourna l . com/ 2 0 12 / 0 5 / 16 /a-ne w�tool-for-determining­factual - inno cence-ma s sa chusetts-post­conviction-acces s -to-forensi c-and-s cient i f i c­analys i s -by-david -m-s iegel-a 'nd -gregory- I -mas s ing ( la s t visited February 10 , 2 0 15 ) . . . . . . . 18

M. Teague , Bet ter than 'CSI': High-t ech DNA Vacuum Cracks Cold Case, Al-Ja zeera America , TechKnow' Blog ( Feb . 18 , 2 0 14 ) , avai lable a t http : / / ameri ca . a l j a z e era . com/watch/ shows/ techknow/blog/2 0 14 /2 / 18 /better-than-csi­highte chdna va cuumcracks coldca s e . html ( last vi sited February 6 , ,2 0 15 ) . . .. . . . . . . . . . . . . 33

van Oors chot , Ballantye & Mit chel l , Forensic Trace DNA: A Revi ew, 1: 14 Investigative Gene t i c 2 - 3 ( 2 0 10 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 , 31, 32

van Oors chot & Jone s , DNA Fingerprints from Fingerprints, 38 7 Nature 7 6 7 ( 19 9 7 ) . . . . . . . . . . . . 31

Wi ckenh e i s e r, Trace DNA: A Revi ew, Discussion of Theory, and Appl i cation of the Transfer of Trace Quan t i t i es of DNA Through Skin Con tact, 4 7 J . Forens i c S cience 4 4 2 ( 2 0 0 2 ) . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 31

Wi ckenh e i s e r & Cha l l oner , Suspect DNA Profi l es Ob tained From The Handl e of Weapons Recovered At Crime Scene 1 ( 19 9 9 ) . . . . . . 32

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A . W i l li amson, Touch DNA: Forensic Collection and Application to Inves t i ga tions, 18 J. As s 'n Crime S cene Reconstruction 1 ( 2 0 12 ) . . . . . . 22 , 32

M. Zapotos ky , DNA Technology Moves Forward, Wash . P o s t . ( Sept. 2 2 , 2 0 0 8 ) , avai lable a t http : / /www . washingtonpos t . com/wp-dyn/ Content /articl e /2 0 0 8 / 0 9 / 2 1 /AR2 0 0 8 0 92 10 2 2 7 6 . html ( la s t vi s ited February 6 , 2 0 1 5 ) . . . . . . . . . . . 3 3

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INTRODUCTION

This case has far-reaching imp l i cations for a l l

fu ture Mas sa chusetts defendants seeking to p e rform

modern f o rens i c o r s cienti f i c analysis o f e vidence a s a

f i rs t s tep in e s tablishing their inno cence o f the

crimes o f which they have been wrongful ly convicted,

pursuant to G . L. c. 2 7 8A ( "Chapter 2 7 8A" ) . As thi s

Court h a s previous ly recogni zed, Chapter 2 7 8A was

ena cted in the wake o f a national recogni tion tha t "DNA

testing has an unpara l leled abi li ty both to exonera te

the wrongly convicted and to identi f y the gui l ty . "

Commonwea l th v. Wade , 4 67 Mas s . 4 9 6 , 4 9 7 ( 2 0 14 )

( in te rn a l citations omi tted) . The s ta tute aims "to

remedy the inj u s ti ce o f wrongful convictions o f

fa ctua lly innocent persons by a llowing a cce s s to

analyses o f biologi ca l .material w i th newer forens i c and

s cienti f i c techniques . . ·. [that] p ro vide a more

reliable b a s i s for e s tabli shing a fa ctual l y correct

ve rdict than the .e vidence a vai lable a t the time of the

original conviction . " I d . a t 5 0 4 , citing 2 0 1 1 Senate

Do c. N o . 7 5 3 and 2 0 1 1 House Doc. No . 2 1 6 5 . In ena cting

Chapter 2 7 8A, the Legi s l a ture expres s ly separated the

procedure for s e curing pos t-conviction forens i c tes ting

from any p ro cedures for cha llenging the underlying

convicti o n , creating an e s s entially non-adve rsarial

proce s s f o r de termining whether testing i s wa rranted

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and dramatically reducing the burden of proof needed to

s ecure testing. I d . a t 5 0 5 .

This Court' s interpreta tion o f Chapter 2 7 8A a s

app l i e d to the facts o f Mr. Clark' s c a s e wil l pro ­

foundly affect the scope o f p o s t-convi c tion access to

widel y used forensic methods o f de ve l oping DNA prof i l e s

from occul t b l o o d a n d trace amounts o f epi thelial

( s ki n ) cells l e f t on obj ects a t a crime scene. In h i s

Chapter 2 7 8A mo tion, Mr . C l a r k seeks p o s t-conviction

foren s i c DNA tes ting of a knife handle tha t the mal e

p erpe trator indisputably touched during the commis s ion

o f the crime. According to the tri a l record, the

femal e victim used the knife to s tr i ke the perpetrato r

during the course o f the encounte r , and the two then

s truggled o ver the kni f e , creating s e veral

opportuni ties for DNA transfer.

At the time o f Mr. Clark' s 19 7 3 tri a l , DNA testing

had not y"et been deve l oped for forensic u s e , nor does

i t appear tha t the Commonwealth or i ts agents performed

any o ther forens ic testing to screen for the pre sence

of b i o l ogical ma terial on the knife handle . In the

i n te r vening four decade s , serological and DNA tes ting

techniques have advanced to the point where it is now

p o s sible to de tect, amp l i fy and analyze sma l l and

degraded s amples , including trace amounts of blood,

s a l i va or s kin cells depos i ted on obj ects a t a crime

s cene . In addi tion, the Y-STR DNA testing sought by

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the defendant can develop DNA pro f i l e information from

only the male DNA obtained from an i tem o f e vidence ,

making thi s f o rm o f analysis p a rti cu l a rly wel l s u i ted

for i tems tha t may contain a mixture o f mal e and femal e

DNA. A s such , the reques ted ana lysis unquestionably

has the potenti a l to exclude the defendant as the

sou rce o f any mal e DNA on the knife handle.

The amicus s o l i ci ta tion in thi s case a s ks whether

a defendant seeking p o s t- convi ction DNA tes ting o f

physica l e vidence from h i s criminal tria l pursuant to

Chapter 2 7 8A mus t demons tra te , for purposes o f s e ction

7 ( b ) , no t only tha t the e vidence ( in thi s cas e , a knife

.handle ) e x i s ts , but a l s o tha t the re is a rea s onable

pos s ibi l i ty tha t the e vidence contains a trace amount

of biologi ca l material . Ami ci contend tha t the p lain

language and l e g i s l a tive h i s tory o f Chapter 2 7 8A, a s

well a s important s cienti f i c and p o l i cy considerations

gleaned from cold case inve s ti ga ti ons and p a s t DNA

e �onera tions , do not support thi s reading o f the s ta tu te.

Applying the s tandard o f p roof enun ci a ted in

Chapter 2 7 8A to the fa cts o f Mr. C l a rk' s cas e , it is

clear tha t he has me t his burden unde r s e ction 7 of

e s tablishing tha t the e vidence exi s ts and tha t the

reques ted analys i s has the p o tenti a l to yield e vidence

tha t i s material to the identi ty o f the perp etrator.

Fo r a l l of the s e reasons , thi s Court should find tha t

Mr. Clark i s entitled to forensic DNA analysis o f the

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knife handle , and should remand the case f o r fu rther

proceedings consistent with this result .

I S SUE PRESENTED

The mot ion j udge denied Mr . Cla rk' s request under

Chapter 2 7 8A for access to and DNA analysis of a knife

handle recovered from the crime scene. Both the

perpetrator and the victim touched the kni fe handle

during the commi ssion o f the o ffense . Aft e r a hearing,

the j udge ruled that Mr. C la rk was not ent i t led to the

requested t e sting because he failed to e stabli sh a

" reasonable p o ssibi lity" that the handle contains a

t ra ce amount o f biologica l mate ri a l . The i ssue

presented i s whether the j udge erred in interp reti ng

G. L. c. 2 7 8A, § 7 ( b ) to requi re p roof o f a reasonable

possibi l i t y that biologica l mat e ri a l i s present on the

crime scene item, where neither the p lain language nor

the legi sla t i ve history of the statute support such a

requirement and where imposing such a requi rement

ignores important scient i fi c and poli cy lessons

gleaned from cold case inve st igations and past DNA

e xonerations.

STATEMENT OF INTEREST OF AMIC I CURIAE

The Committee for Pub l i c Counsel S e rvices ( "CPCS")

is statutori ly mandated to provide counsel for indigent

defendants in criminal proceedings in Ma ssa chusetts

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s ta te cou rts , including d i re ct appeals from criminal

convi cti o n s , motions f or pos t-conviction reli e f , and

motions for pos t-con viction foren s i c analy s i s . l1 G . L .

c. 2 1 1 D , §§ 5 , 1 4 . The Innocence Program i s a unit

wi thin the pri va te couns e l appeals divi sion of CPCS and

was e stablished in February 2 0 1 0 with funding from a

federa l grant award from the Bureau of Jus ti ce ·

As s i s ta n ce . The miss ion of the Innocence P rogram i s to

identi fy potentia lly meritorious Mas s a chu s e tts inno-

cence cas e s , a s s ign couns e l to handle court-appointed

innocen ce appeals and rel a ted pos t-convi ction ma tte rs ,

supervi s e and train lawyers handling innocence cas e s ,

and admin i s te r federa l grant funds to support post-

conviction inve s tigation, foren s i c cons u l ta tion and

tes ting .

S i n ce the ena ctment of Chapter 2 7 8A in February

2 0 1 2 , the Innocence Program has pro vided tra ining and

case - s p e ci fi c consultation for indigent p e rsons seeking

post- convi ction forens i c or s cienti f i c analysis to

e s tabli s h factua l inno cence pursuant to thi s p ro vi sion .

In 2 0 1 3 , the Innocence P rogram s e cured a federa l grant

award f rom the National I n s ti tute of Jus ti ce

Pos tconvi ction DNA T e s ting As s i s tance P rogram, in

l1Amici a cknowledge the inva luable a s s i s tance of De von Applegate ( Bo s ton Co llege Law S chool, 2 0 1 6 ) , Jame s Camire ( N o rthea s te rn Uni ve rs i ty Law S chool, 2 0 1 6 ) , and Nathan Wood (Ha rva rd Law S chool, 2 0 1 6 ) to thi s b ri e f .

/

- 6 -

c o l laboration with s everal other criminal j ustice

agencies . As a result o f this award, the Innocence

Program obtained federal funding to defray the costs o f

p o s t - conviction DNA testing and hire a full time staff

attorney to support i t s review and lit igation o f cas e s

involving post-convi ction DNA testing . Y

The Massachusetts Association o f Criminal Defense

Lawyers ( "MACDL" ) i s _§,n incorporated a s sociation

representing more than 1 , 0 0 0 e xperienced trial and

app e l late lawyers who are members of the Mas sachusett s

Bar a n d who devote a substanti a l part o f their prac-

tices to criminal de fense . MACDL i s dedicated to

protecting the rights of the citizens o f the Common-

wea lth guaranteed by the Mass achusetts Declaration o f

Rights and the United States Cons titut ion . MACDL s e e ks

t o improve the crimina l j ustice system by supporting

p ol i c i e s and procedures to ensure fai r r:e s s and· j ustice

in criminal matters . MACDL devotes much o f its energy

to identi fying , and attempting to avoid or correct ,

problems in the cr�minal j ustice system . I t files

amicus curiae briefs in cases rai s ing quest ions of

imp o rt ance to the administration o f j ustice.

New England Innocence Proj ect ( "NEI P " ) i s a

l1Grant award N o . 2 0 1 3 - DY-BX-K0 0 6 a l s o funds staffing and additional resources at the Suffol k and Middl e s e x County District Attorneys ' Office s , the Middl e s e x Superior Court C le r k' s Office a n d t h e New England I nnocence Project .

- 7 -

regis tered non-profit and 5 0 l ( c ) ( 3 ) tax- e xempt organi­

z a tion tha t provides pro bono leg a l services to

identify, inves tiga te , and e xoner a te persons who have

been wrongly convic ted and imprisoned in the New

England s tate s . In addition to its work on behalf o f

individua l clients , N E I P als o seeks to rais e public

awarenes s o f the prevalenc e , caus e s , and c o s ts o f

wrongful convictions , and advocates for legal reforms

tha t will reduce the risk they occur and will h a s ten

the identification and release o f innocent prisoners .

N E I P is one o f f ive partner agencies in the 2 0 1 3

federal grant award described above .

The I nnocence N e twork ( "N e twork") is an interna­

tional a f f ilia tion of more than s ixty-nine different

organiza tions in forty-four s ta te s and fourteen

countries dedicated to providing pro bono legal and

inves tiga tive se rvices to individuals seeking to prove

innocence of crimes for which they have been convicted

and working to redre ss the causes of wrongful

convic tions . In 2 0 1 3 , the work o f N e twork member

organiza tions led to the e xonera tion of thirty-one

people around the world . These innocent people served

a combined 4 5 1 years behind bars for crimes they did

n o t commit. The N e twork has a s trong profes s ional

inte r e s t in the determination of the is sues presented

in th is case . The Network seeks to remedy wrongful

convictions and prevent the continued incarcera tion of

- 8 -

innocent individua l s .

Ami ci are committed to ensuring that convicted

individu a l s have appropriate access to post-conviction

DNA t e s t ing us ing scientifically validated methods .

Amici submit this brief in support o f the r e l i e f

requested by Mr . Clar k . Amici urge this Court to hold

that Mr . C l a r k ' s request for p o s t-conviction DNA

test ing s a t i s fies the requirements o f Chapter 2 7 8A and !

that the j udge erred in requi ring him to demonstrate a

reasonabl e p o s s ibility that the evidence he sought to

test contained a trace o f biological evidence .

STATEMENT OF THE CASE

Amici adopt the statement o f the case set forth in

the principal briefs o f the partie s .

STATEMENT O F FACTS

Amici adopt the statement o f facts that are set

forth in M r . Clark' s brief in this Court . In addition,

Amici wish to highl ight the f o l lowing facts as parti-

cularly relevant to the amicus s ol icitation in the

case : :!/

VThe trial transcripts are cited herein a s ( " Tr . • 1 . The Defendant ' s brief i s cited herein a s ( " D . Br, • 1 , and·the Record Appendi x s ubmitted by the Defendant in support .o f his brief i s cited herein a s ( "A . • 1 . The Commonwea l t h ' s brief is cited herein as ( " C . Br . • 1 . Additional documents contained in the Amici Addendum are cited herein a s ( "A . A. • 1 .

- 9 -

* The evidence that Mr . Clark seeks t o test - a knife handle - exists and i s presently in the custody df the Suffolk Superior Court Cler k's Office . (A . 1 7 5 , 2 0 3- 2 0 4 , c. Br . 8 ) .

* The trial record e s tablishes that the male . perpetrator and the female vi ctim s truggled over the knife and that both part i e s touched the knife . ( Tr . 3 8 - 4 0 ) . There is no evidence that the perpetrator wore gloves whi le handling the knife .

* The trial record further e stabli s h e s that the victim t o o k the knife away from the attacker and tried to s t ab him somewhere around the back shoulder area ( T r . 9 5 ) , brea king o f f a portion o f the blade . ( T r . 4 0 , 9 5 - 9 7 ) ,

*

*

*

*

*

The pol ice collected the knife handle from the victim' s apartment on the day a fter the offens e , logging it as evidence . ( T r . 9 6 - 9 7 ) .

At the t ime o f h i s arrest three days after the offense, Mr . Clark was strip s e a rched and examined by the p o l i ce . ( T r . 2 5 0 ) . The police did not observe any inj uries that were con s i s tent with puncture or stab wounds . ( Tr . 2 7 3 ) .

The parties agree that there was no evidence· or testimony presented at trial that estab­l i shed the presence of blood on the knife handl e . ( T r . 3 8 , 4 0 -4 2 , 9 5 - 9 6 ) . However , it i s widely known that blood can be present in trace amounts that are not visible to the naked eye but detectable with serology screening test s . ( A . A . 2 3 -2 6 ) .

I t i s beyond di spute that individuals shed DNA onto obj ects when �hey handle or touch them . At present , there are several widel y available forens i c testing techniques that can generate DNA profiles from as few as ten epithe l i a l ( s ki n ) cells depo sited on an item. ( A . A . 1-2 , 1 8 -2 2 ) .

There are several known criminal case s , both innocence claims and cold case prosecution s , where DNA t e st ing o f obj ects with n o visible biological material neverthel e s s yielded

*

*

- 1 0 -

usable DNA profiles from the presence o f touch DNA a n d trace biological ma terials . (A . A . 3 1 - 60 ) .

Mr . Clark' s wri tten pleadings - and in particular the expert a f f i davi t o f Dr . Robin Co tton ( A . 1 4 8 ) - support a reasonable inference tha t the perpetr a to r ' s touch DNA could be present on the knife hand l e , tha t DNA testing o f the handle i s scien ti fical l y feasib l e , a n d tha t such testing could yield a DNA prof i l e . ( A. A . 4 5 - 4 6 ) .

Y-STR DNA tes ting is a form o f forensic analysis tha t deve lops DNA profile information from only the male DNA obtained from an i tem of evidence . ( A . 1 4 8 ) . This form of tes ting i s commonly used to identify and i s o l a te mal e genetic ma terial in circum­s tances where the factual record indicates the possible presence o f a mixture o f mal e and female DNA o n a n obj ec t . In the present cas e , Y-STR tes ting o f the knife handle would i s o l a te any mal e DNA from any female DNA pre sent, and the results would not include any profile information from any female DNA. (A. 1 4 8 ) .

* The evidence tha t Mr . Clark seeks to tes t -biological ma terial ( whether occult blood or s kin cel l s ) depos i ted by the perpetrator on the knife handle - i s potenti a l l y proba tive of the identity of the perpetrator. In the event tha t a mal e DNA prof i l e can be deve loped from forens ic analys i s of the handle and Mr . Clark i s e xc l uded as the source o f tha t profi l e , thi s res u l t would unquestionably bear on the i s sue of whe ther he is in fact the perpetrator of the crime .

- 11-

ARGUMENT

I .

THIS COURT SHOULD INTERPRET CHAPTER 278A IN A MANNER

THAT ACCORDS WITH THE PLAIN LANGUAGE OF THE STATUTE AND ADVANCES THE LEGISLATURE'S GOAL OF FACILITATING ACCESS

TO POST-CONVICTION DNA TESTING AS A FIRST STEP IN

ESTABLISHING INNOCENCE .

The motion j udge ' s reading o f Chapter 2 7 8A, § 7 ( b )

conflicts with the plain language o f the s ta tute ,

fru s tra tes leg i s l a tive intent and violate s wel l -

e s tablished principl e s o f s ta tutory construction . "The

general and fami l i a r rule [o f s ta tutory cons tructi o n ]

i s tha t a s ta tute mus t b e interpre ted according to the

intent o f the Legi s l a ture ascer tained from a l l i ts

words con s trued by the ordinary and approved u s age o f

the language, cons idered in connection with the cause

o f i ts enactment, the mischief or imperfection to be

remedied and the main obj ect to be accomplished . "

Commonwea l th v . Wade, 4 67 Mas s . 4 9 6 , 5 0 1 ( 2 0 1 4 )

( internal c i ta tions omitte d ) . As thi s Court recognized

i n Wade, Chapter 2 7 8A was enacted with the goal of

"promoting access to DNA te s ting" by faci l i tating

expeditious access to forens ic analysis tha t is p o ten-

tia l l y probative of innocence . I d . a t 5 0 9 . "Based on ·

the plain l anguage o f the s ta tu te and the purpos e for

which .i t was enacted , " id . at 5 0 5 , the Legi s l a ture did

not intend to require tha t movants demonstrate a

" reasonab l e p o s s ibil i ty" tha t biological ma terial i s

- 1 2 -

present o n a n item o f evidence a s a prerequis ite to .

testing . S e e , e . g . , C ommonwea l th vs . Lykus , Sup . Ct .

No . 7 3CR4 35 5 8 , Memorandum o f Decis ion and Order at 3

( Feb . '1 0 , 2 0 1 5 ) (holding that , where Chapter 2 7 8A

states only that the defendant mus t "show e ither that

the evidence or the biological materia l e xis t s , " the

defendant was not a ls o requ ired to demonstrate that the

evidence he s ought to test (a postage stamp ) "conta ins

biological materia l ") . ( A . A . 6 3 ) .

The motion j udge ' s contrary reading o f Chapter

2 7 8A s impl y guts the statute . Relying on the only

court decis ion interpreting the s t atute at t hat t ime ( a

Superior Court decis ion in Commonwealth v . Wad e , A . 7 ,

subsequently reversed by this Court ) , the j udge derives

an impl ie d requirement that a movant seeking to perform

analysis o f evidence demonstrate not only that i t

e xis t s , but a l s o demonstrate a reasonable p o s s ibility

that biological material is presen t on it . This view

would prevent t e s t ing in cases where the bio logical

nature o f evidence or the presence of bio logical

material is not apparent ,to the na ked eye o r from prior

presump t ive s cre·en ing, thereby curt a il ing post­

conviction acce s s to legit imate and widely available

scientif ic methods o f deve loping DNA profil e s from

t race b io l o g ical materia l . For these rea s ons , this

Court should.dec l ine to adopt the motion j udge ' s

- 1 3 -

reading o f the statute .

A . Requiring Proof of a "Reasonable Possibi lity" that B i o l ogi cal Material i s Present Conflicts with the Plain Language o f the S t atute and Frustrates Legislat ive Intent .

Chapter 2 7 8 A'establ ishes a brand new, stand-alon�

procedure for securing post-conviction access t o

forens i c o r s cientific analysis that i s potent i a l l y

probative o f innocence . The statute enumerates s i x

factors , " each" of which must be estab l i s hed by a

preponderance o f the evidence before testing i s

required; showing a " reasonable p o s s ibility" o f the

pres ence of biological evidence is not one of them.

G . L . c . 2 7 8A, §§ 7 ( b ) ( 1 ) - 7 ( b ) ( 6 ) . Basic principles

o f statutory construct ion dictate that this Court find

that the e xpression o f these enumerated factors

impliedly e xcludes any additional factors . See Police

Comm' r of Boston v. Celi , 4 3 1 Ma s s . 4 1 0 , 4 1 3 ( 2 0 0 0 ) ,

quot ing Harborview Res iden t s ' Comm . , Inc . v . Quincy

Hou s . Auth . , 3 6 8 Mass . 4 2 5 , 4 3 2 ( 1 9 7 5 ) . See a l s o

Commonwealth v . Jone s , 4 1 7 Ma s s . 6 6 1 , 6 6 4 ( 1 9 9 4 ) .

Here , the Legis lature e l ected to include a provi sion

that the movant must demonstrate "that the evidence or

biological material e xi st s . " G . L . ' c . 2 7 8A, §

7 ( b ) ( 1 ) .il Howeve r , the Legi s l ature declined to

iiin this c a s e ; there i s no di spute that "the evidence" ( CONT INUED ON NEXT PAG E )

- 1 4 -

condit ion access t o t e s t i �g o f that evidence o r biolo­

gical material on a further showing that the evidence

or biological material is forensically suitable for DNA

testing . Accordingly, this Court should find that the

Legis lature intended to e xclude s uch a requirement

a s a prerequisite of test ing .

Amici ' s view o f Chapter 2 7 8A a l s o accords with the

leg i s lative history . In enacting Chapter 2 7 8A,

Massachusetts became the forty-ninth stat e , a long with

the Federal government and Di strict of Columbia, to

provide access to post -convi ction forensic analysis t o

estab l i s h innocence . Wade , 46 7 Mas s . a t 5 0 9 . A com-

parison o f Chapter 2 7 8A t o the statutes that preceded

it reve a l s the Legi s l ature ' s choice to set a Qfar lower

bar for access to scientific testing than that required

by s imi l a r statutes in other States . " I d .

With speci f i c regard t o the i s s ue presented in

this c a s e , many of the statutes ava i l ab l e at the t ime

the Leg i s lature enacted Chapter 2 7 8A e xplicitly

requires movants to establish both that the evidence

e xi s t s and that it e i ther : ( a ) contains biological

material that i s capabl e o f being subj e cted to DNA

i1 ( CONT INUED FROM PREVIOUS PAGE) - a kni f e handle over which the victim and struggled - e xi s t s and is presently in the the S u f f o l k Superior Court Clerk' s Office . 2 0 4 ) •

perpetrator custody of (A. 2 0 3 -

- 1 5 -

t e s t i ng ; 11 o r ( b ) i s i n a condition that i s foren-

s i ca lly suitable for DNA testing . f1 Chapter 2 7 8A , by

contras t , states only that the movant must show that

"the evidence or biological material exists . " G . L . c .

2 7 8A, § 7 (b ) ( 1 ) . This contras t provides st rong evidence

that the Legis lature expre s s ly declined to condition

t e s t ing on a showing o f a "reasonable p o s s ib i lity" that

b i o logical mat e rial is pres ent . If the Legi s lature had

intended to in clude such a requirement , it had numerous

examp l e s of appropriate language from other statut e s .

Moreove r , requiring movants , prior to testing, to

establi s h a " reasonable possibility" that bio logical

mate r i a l i s present " does not accord with the

Leg i s lature's intent o f promoting access to DNA testing

regardle s s of the presence of overwhelming evidence o f

gui lt in the underlying trial. " Wade, 4 67 Mas s . at 5 11

( examining related que stion o f whether to import

11s e e , e . g . , Mich . Comp . Laws Ann . § 7 7 0 . 1 6 ; Neb . Rev . Stat. § 2 9- 4 12 0 ( 5 ) ; Ohio Rev . Code Ann . § 2 9 5 3 . 7 4 ( C ) ( a ) ; and R . I . Gen . Laws § 1 0 - 9 . 1 - 1 1 - 1 2 ( c ') .

&/s e e , e . g . , Ala . Code 1 9 7 5 § 1 5 - 1 8 -2 0 0 ( c ) ( 1 ) ; Ari z . Rev . Stat . Ann . § 1 3 - 4 2 4 0 ( B ) ( 2 ); Colo . Rev . Stat . Ann . § 1 8 - 1 - 4 1 3 ( 1 ) ( b ) ; Conn . Gen . Stat . § 5 4 - 1 0 2kk; Ga . · Code Ann . § 5 - 5 - 4 1 ( 7 ) ( B ) ; Haw. Rev . Stat . § 8 4 4 D-12 3 ( b ) ( 2 ) ; Iowa Code § 8 1 . 1 0 ( 7 ) ( a ) ; Ky . Rev . Stat . Ann . § 4 2 2 . 2 8 5 ; La . Code . Crim. Pro c . Ann . art . 9 2 6 . 1 ( C ) ( 3 ) ; Mont . Code Ann . · § 4 6- 2 1 - 1 1 0 ( 5 ) ( a ) ( i i i ) ; N . H.

Rev . Stat . Ann . § 6 5 1 - D : 2 ( III) ( a ) ; N . J . Stat . Ann . § 2 A : 8 4A-32a ( d ) ( 1) ; S .C . Code Ann . 5 1 7 - 2 8 - 9 0 ( B ) ( 1 ) ; Tenn . Code . Ann . 5 4 0 - 3 0 - 3 0 4 ( 2 ) ; Tex . Crim . Proc. Code Ann . §§ 64 . 0 3 ( a ) ( 1 ) ( A ) ( i ) ; Utah Code Ann . §§ 7 8 B-9-3 0 0 - 3 0 4 ( 2 ) ( a ) ; W . Va . Code Ann . § 1 5 -2 B - 1 4 ( f ) ( 1 ) ; and Wyo . Stat . Ann . § 7 - 1 2 - 3 0 3 ( c ) ( i i ) .

- 1 6-

Saferian standard o f ineffective a s s i stance o f counse l

to phras e , 'reasonably e ffective attorney' a s it

appears in Chapter 2 7 8A ) . The pract ical e ffect o f this

requirement w i ll be to bar access to foren s i c analysis

in all cases invo lving trace DNA that has not a lready

be en detected through visual inspection or prel iminary

screening . This result ignores the real world consid-

erations that prompted the enactment o f Chapter 2 7 8A

and re-erects many o f the barriers to foren s i c t e s t ing

that the Leg i s l ature aimed to e liminate . Where the

p la in language does not require movants to establish a

ftrea sonable pos s ib i lity" that biological material i s

present , and where reading this requirement in t o the

statute ftappears to conflict with the stated purpose o f

the Legi s lature in enacting it , " Wade , 4 67 Mass . at

5 0 9 , this Court should decline to do s o .

B . The Motion Judge ' s Interpretation o f Chapter 2 7 8A Violates Well-Establi shed Princ i pl e s o f Statutory Construction .

The mot i on j udge asserts that , despite the absence

of any clear e xpre s s i on of a ftreasonable probabi l ity"

requirement , one can be inferred from the ftmateriality"

requirement in G·.L . c . 2 7 8A, § 7 ( b ) ( 4 ) . 21 This

l1G . L . c . 2 7 8A, § 7 ( b ) ( 4 ) provides that the movant must e stabli s h , by a preponderance of the evidence , ftthat the requested analys i s has the potenti a l to result in evidence that i s material to the moving party' s identi f i cat ion a s the perpetrator o f the crime in the underlying case . "

- 1 7 -

imprope r l y conflates the que st ion o f whether evidence

or b io l o g ical materia l e xi s ts with the a na l yt ical l y

separate ques t ion o f whether the propos e d analys is wil l

be material to identity . N e ither the plain language

nor the l e g islat ive history of Chapter 2 7 8A suggest

that Leg i s l ature intended the •material ity" requirement

of section 4 to modify the •e xistence" requirement o f

section 1 . O n the cont rary, t h e s e two sections serve

ent i r e l y different and separate functions . Section

7 ( b ) ( 1 ) a s ks the foundational question, •ooes what you

seek to test s t i l l even exist?" Section 7 ( b ) ( 4 ) a s ks ,

•rf s o , what - if anything - will the proposed analysis

t e l l us about the ident i ty o f the perpetrator?"

Ami ci contend that it i s a l s o clear tha t Sect ion

7 ( b ) ( 4 ) p o s e s a factual rather than a scientific

ques ti on concerning the evidentiary s ignificance o f the

requested analys�s to the perpetrator's identity .

Understood a s such , the statute requires proof o f a

nexus between the evidence for which analysis is sought

and the p e rpe trato r ' s identi t y , rather than proo f o f

the s cienti fical l y unknowable i s sue - without t e s t ing -

o f whether biological material i s l i ke ly t o be present

on that evidence . This interpretation accords with the

legi s l ative intent o f promo ting acce s s to foren s ic

analys i s . It avoids the Catch- 22 the statute intended

to remedy, of defendants see king discovery under Mas s .

R . Crim. P . 30 ( c ) ( 4 ) who need first to e stablish a

- 1 8 -

prima facie case for reli e f under Rule 30 ( b ) , for which

they need dis covery . .!.! I t a ls o imp o s e s a burden o f

proof tha t can actually b e s a tisfied with the ava i lable

tri a l record or e xtant di scovery, w i thout requiring

specula ti on or scienti f i c inspection . The motion

j udge ' s reading o f . this provi sion, by contr a s t,

requires movants to e s tablish s cienti f i c inferences

tha t cannot be supported w i thout access to the very

evidence for which tes ting is sough t .

The second, related flaw in the motion j udge ' s

reading of Chapter 2 7 8A i s tha t i t collapses the

d i s junctive requirement tha t "evidence or b i o logical

mate r i a l e xi s ts " into a compound requirement tha t

evidence e xi s ts and possibly contains s ome b i o logica l

ma te r i a l . T h i s a pproach viola tes the we ll- e s tabli shed

rule o f s ta tutory construction tha t, where the word

"or" appears in a s ta tu te , thi s Court wi ll give it "a

di s j unctive [e . g . , s epara te ] meaning unle s s the conte xt

and the main purpose o f a ll the words demand

o therwis e . " See E a s tern Ma s s . S treet Ry. Company v .

Mas s a chuse tts Bay Trans p. Auth . , 35 0 Mas s . 34 0 , 34 3

.!.!Siegel & Ma s s ing, A New Tool for Determining Factual Innocence: Ma ssachusetts' Post-Conviction Access to Forensic and Scientific Analysis, 5 6 B o s ton Bar J . ( Summer 2 0 1 2 ) , a va i lable a t http : / /bo s tonbarj ournal. com / 2 0 1 2 / 0 5 / 1 6 / a -new-to o l- for-determining- factu a l­innocence-ma s s achu s e tts -po s t-convic ti on-acce s s - to­forensic-and- scienti fic-analysis-by-david-m- s iegel-and­gregory - i -ma s sing ( la s t v i s i ted February 1 0 , 2 0 1 5 ) .

- 1 9-

( 1 9 6 6 ) ; Loughrin v . United States , 1 34 S . Ct . 2 38 4 , 2 39 0

( 2 0 1 4 ) . The mot ion j udge ' s v iew o f Chapter 2 7 8A strips

the word " e vidence" o f its independent meaning in the

statute because, by the motion j udge ' s reasoning , a

movant can never satisfy G . L . c . 2 7 8A, § 7 ( b ) ( 1 ) by

merely showing that the " evidence" - in this case the

knife handle - exist s . V

The Commonwealth contends that requir ing movants

to e s tablish a "reasonable p o s s ib ility" that b iological

mater ia l is present is necessary to guard against

frivo lous reques t s to test every item recovered at a

crime s cene on the theory that it "might" contain DNA .

( C . Br . 1 3, 1 7 ) . However , this concern does not

provide a basis for . inferring a threshold requirement

that is not expre s s ly enumerated in the statute .

Chapter 2 7 8A' s requirements that a movant prove that

the evidence exis t s and that the analysis is

21 Indeed, one can eas ily foresee a case in which the s ubj ect o f a movant ' s request for t e s t ing is stand­a lone biological material, such a s a hair , swab , s lide , or vis ib le bodily f luid s t a in . The "definitions " section o f Chapter 2 7 8A anticipates this s cenario and defines "bio logical materia l" as "a sexua l a s s au lt foren s ic examination kit , seme n , b lood, s a liva , hair , s kin t issue o r other identified b io logical substance" and" analy s is " a s "the process by which a forens ic or scient ific technique is app lied to evidence Q£ biological materia l to identify the perpetrator o f a crime . " G . L . c . 2 7 8A, § 1 . The inclu s ion o f these definit ions , and o f the phrase " evidence Q£ biologica l evidence" in the defin it ion o f ''analysis , " further unders cores the Legis latur e' s int ent to give separate meaning to these two t erms .

- 2 0 -

potenti a lly material to the question o f identity

suffi cient ly s afeguard against frivolous ''fishing''

e xpeditions. G . L . c . 2 7 8A, § 7 ( b ) ( 4) . Requiring

additional proof that evidence may contain trace

amounts of biological material i s an unneces sary

further protection .

II.

REQUIRING PROOF OF A "REASONABLE POSSIBILITY" THAT

BIOLOGICAL MATERIAL EXISTS IGNORES THE REALITIES OF

MODERN FORENSIC ANALYSIS AND IMPOSES AN INSURMOUNTABLE

BURDEN ON DEFENDANTS SEEKING TESTING, AS TOUCH DNA AND OTHER TRACE BIOLOGICAL MATERIALS OFTEN CANNOT BE

DETECTED PRIOR TO TESTING .

The motion j udge ' s reading of Chapter 2 7 8A not

only runs afoul of the Legi s lature ' s intent o f

promoting access t o DNA analysi s , but a lso misunder-'

stands the proces s by which trace amounts of biological

mate r i a l are detected and analy z e d . Allowing the

motion j udge ' s interpretat ion to stand would ignore

these pract ical forens i c reali t i e s , where trace

biological materials o ften cannot be detected unti l the

evidence is sent to a laboratory, and thus would

prohibit many defendants from f i ling otherwise viable

Chapter 2 7 8A mot i on s .

DNA t e s t ing h a s advanced s ignificantly " s ince its

first use in criminal inve stigations in the mid- 1 9 8 0 s

. . . culminating i n [Short Tandem Repeat ( STR) ]

techno logy . " Dist . Attorney' s Office v . Osborne , 5 5 7

U . S . 52 , 6 2 ( 2 0 0 9 ) . The earliest methods o f DNA

- 2 1 -

ana l y s is , such as Restriction Fragment Length

P o l ymorphism ( RFLP ) , required thousands of cells in

relatively good condition ( or approximately 1 0 -5 0

nanograms ( n g ) o f DNA ) to develop a useable DNA profile

for identification of a suspect ,lQI Early polymerase.

chain reaction ( PCR) methods improved upon the sensi-

t ivity o f RFLP testing, needing only a few hundred

ce l l s , or 0 . 3 - 0 . 5 ng , to develop a profi l e . ll1

In cont r a s t , today's STR technology can develop

ful l prof il e s from l e s s than 1 0- 2 0 cell s , 121 or approxi-

mat e l y 2 0 0 p icograms to 2 ng of DNA, 131 making it

particularly wel l suited for analyzing sma l l amounts o f

DNA a n d samples with degraded or contaminated DNA . lV

ll1Rudin & Inman, Introduction to Forensic DNA Ana lysis 17 · ( 2 d ed . 2 0 0 2 ) .

l.1.isTR has p roven to be a highly sensitive and discrim­inatory DNA testing method, a l l owing analysts to dis­criminate "between unrelated and even c lo s e ly related individual s . " . J. But l e r , Forensic DNA Typing: Biol ogy, Technology, and Gene tics of STR Markers 3 0 ( 2d ed . 2 0 0 5 ) .

ll1Budowle , E i s enberg & van Daa l , Validi ty of Low Copy Number Typing and Applica t i ons to Forensic Science, 5 0 Croatian Med . J . 2 0 7 , 2 0 8 ( 2 0 0 9 ) .

ll1Nat ' l Institute o f Justice , Postconvic t i on DNA Tes ting: Recommenda t i ons for Handling Requests 2 5 , 2 7 -2 8 ( 19 9 9 ) ; But l e r , Forensi c DNA Typing a t 3 1 . S e e a l s o Lyku s , supra , Memorandum at 3 - 4 ( "Even i f DNA o n the. [item] has degraded somewhat , there are methods o f DNA

t e st ing that could produce results that are' suffic ient to exclude a person as the source of the DNA. ") . ( A . A . 6 3 - 6 4 ) .

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Additi onal l y , Y-STR testing , which Mr . Clark requests

in his motion, e xamines only the Y-chromos ome in a

s amp le , 151 permitting a lab to i s o late male DNA but

ignore any female DNA that may be present . ll1

Commonwea lth v . Linton, 4 5 6 Mas s . 5 34 , 5 4 3 ( 2 0 10 ) .

Today , forens i c laboratories routinely test

evidence for "touch" or "handler" DNA, ll1 and t hi s

practice i s roundly embraced b y the l a w enforcement

community .1.!.1 The molecular stab i lity of DNA molecules

151See a ls o Kashyap , Chattopadhyay & Trivedi , DNA Profiling Technologies in Forensic Analysis, 4 Int ' l J . Hum. Gen e t i c s 2 2 ( 2 0 0 4 ) .

161Nat ' l Institute o f Jus tice , Using DNA to Solve Cold Cases 7 ( 2 0 0 2 ) . Y-STR t e s t ing would s earch only for male DNA and ignore any female DNA left behind by the victim or ADA Pat.alano . ( Tr . 38 - 4 0 , 9 5 ; A . 8 5 , 18 7 ) .

171A . W i ll i amson, Touch DNA: Forensic Collec t i on and Applica t i on to Investiga tions, 18 J . As s ' n . Crime Scene Reconstruction 1, 1 ( 2 0 12 ) . Touch DNA refers to DNA from s kin ce lls l e ft behind when a person comes into contact with an item. Nat ' l Institute o f Justice , DNA for the Defense Bar 17 7 ( 2 0 12 ) . Modern DNA test s , such a s STR, do not di fferentiate between DNA from skin c e l ls , s a l iva , sweat , or any other microscopic biolo ­gical mat e rial . van Oorschot , Ballantyne & Mitche l l , Forensi c Trace DNA : A Review, 1 : 14 Inve stigative Genetics 2 - 3 (2 0 10 ) . ( A. A . 2 - 3) . Thu s , researchers and DNA analys t s refer to these biological materials s imp ly a s " t race DNA . " Id . at 3 . For consistency with the part i e s ' brie f s , amici w i ll use the term " t ouch DNA" when referring to DNA from s kin ce lls or any other trace amount of biological materials .

ll1See NIJ, Using DNA to Solve Cold Cases at 2 9 ( " [T ] hrough recent advancements in DNA techno logy [investigators] can identi fy a suspect in ways previ­

ously seen only on television . Evidence invi sible t o the naked eye can be the key to s o lving a res identi a l burglary, s e xu a l assaul t , o r murder . The s a l iva on the

( CONT INUED ON NEXT PAGE)

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over t imell1 h a s a l s o l e d to a n increased reliance on

DNA t e s t ing of trace evidence in the contexts of both

cold case invest igations and post-conviction DNA

exonerat ion, a s it i s now known that •biological

evidence can be ana l yzed to produce a reliable DNA

prof i l e years , even decade s , a fter it i s coll ected . • 201

Along with these advancement s , however , has come a

corresponding growth in the number o f cas e s where it i s

not p o s sible to detect the presence o f blood, s kin

cells o r other trace biological material without

laborato r y a na l ys i s . 211 Some forms of trace evidence,

lV ( CONTINUED FROM PREVIOUS PAGE) stamp o f a s t a l ke r ' s threatening lett e r , the perspira­t ion on a rapist ' s mas k , o r the s kin cell s shed on the l igature of a s t iangled chi l d ma y hold the key to solving a crime . • ) .

19/ . -Se e , e . g . , R . Fourney, Nat ' l DNA Databank o f Canada , Forensic Laboratory Service s , Foren.sic Reality and The Pract i cal Experience of DNA Typing 5 ( 2 0 0 2 ) ( •unlike serological evidence . . . [the DNA st rand i s ] an extreme l y s table molecule capable of withstanding environmental insults both natural and manmade . The mol ecular integrity of DNA is perhaps the paramount forensic characteristic which a l l ows the forens i c scientist to transcend t ime and link o l d cases with new l y found evidence.• ) .

2 0/N I J , Using DNA to Solve Cold Cases a t 3.

n1see, e . g . , Dal y, Murphy & McDermott , Transfer of Touch DNA From Hands to Glass, Fabric, and Wood, 6 Forensic Sci . Int ' l : Genetics 4 1 , 4 1 , 4 4 -4 5 ( 2 0 12 ) ( •The succes s rate in getting a DNA prof i l e from the surface of a t ouched obj ect will depend on the individual who has touched the obj ect , which hand they have u s e d , the activities o f the individual prior to touching the obj ect and the nature o f the obj ect . • ) ;

( CONTINUED ON NEXT PAGE)

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such a s blood o r s a l iva , ma y b e detectable through

s creening tes ts . 221 Others , . such a s skin cel l s , are

o n l y d e te c table - if at a l l - ·b y performing a

" quanti ta t ion . "2 '1 However , both methods ordinarily

occur in a laboratory se tting241 and are not available

211 ( CONTINUED FROM PREVIOUS PAGE) and J. Sewell et a l , Recovery of DNA and Fingerprin ts from Touched Documents, 2 Forensic Sci . Int' l : Gene tics 2 8 1, 2 8 1- 2 8 5 ( 2 0 0 8 ) .

221 J . Butl e r , Fundamen tals of Forensic DNA Typing 9 0 - 9 1 ( 2 0 0 9 ) . See a l s o J . Butl e r , Advanced Topics in

Forensic DNA Typing: Me thodology 1 0 - 1 4 ( 2 0 1 2 ) . ( A . A . 2 3 - 2 7 ) .

231Modern DNA anal ys i s has mul tiple s tep s , and one o f the fir s t i s quantitation . Commonwea l th v . Barbo s a , 4 5 7 Mas s . 7 7 3 , 7 8 1 ( 2 0 1 0 ) . During quantitation , a lab ana l ys t d e termines ·the a c tual amount, i f any, of human DNA on the sample being te s ted . I d . Thi s s tep serves a s a " s creening tool , " and the resul ts permi t the analys t to decide whether fur ther DNA ana l ys i s i s a c tual l y neces s a r y, or wha t particular te s t should be used ( e . g . , Y-STR for mal e - fema l e mixed samp l e s , mini S TR for degraded samples or those containing smal l amounts o f DN A) . Cuppl e s e t a l , STR Profiles from DNA Samples Wi th "Undetected" or Low Quan tifi l er Res u l t s , 54 J. Forensic Sci . 1 0 3 , 1 0 3 and 1 0 5 ( 2 0 0 9 ) . However , s tudies have shown tha t even quantitation i s no t a fai l -s a fe method o f detecting very low amounts o f DNA, as high l y sensitive S TR tes ts can produce usable profi l e s from samples tha t tested a s "z ero" in the quantitation pha s e . I d . a t 1 0 4 - 1 0 5 .

lllsee Butl e r , Fundamen tals of Forensic DNA Typing at 9 0 ( " [Evidence from the crime scene] w i l l have to be

carefu l l y examined in the forensic labora tory before selecting the area to samp l e · for further te s ting . Prior to making the e ffort to e xtract DNA from a samp l e , presumptive tes ts are o ften performed to indicate whether or no t biological fluids such as b lood or semen are present. " ) .

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to a post-conviction movant see king t e st ing under

Chapter 2 7 8A .

Were this Court t o adopt the motion j udge ' s view

o f Chapter 2 7 8A, it would place defendants such as Mr.

C l a r k i n the untenable position of having to

demonstrate the p o s s ible presence o f biological

material on evidence without the abil i t y to first

foren s i c a l l y examine the evidence . This result does

not accord with the l e s sons o f past exonerations and

cold case prosecuti o n s , which have repeatedly shown the

u t i l i t y of DNA testing for touch and other trace

b i o l ogical materia l s . Testing in these contexts

fr�quentl y occurs without an abil i t y to know, in

advance o f testing, whether biological material is

present . Amici contend that these ca s e s exemp l i f y the

grave problem o f reading a "reasonable p o s s ib i l it y"

standard into Chapter 2 7 8A, and further i l lustrate why

this Court should rej ect the mot ion j udge ' s reading o f

t h e statute .

1 . DNA Analys i s o f Touch DNA and Other Trace Biological Material s Has Produced Nume rous DNA Exonerat ions .

I t i s beyond di spute that post-conviction DNA

ana l ys i s o f touch DNA has contributed t o numerous

exonerat ions . Although the trial records in some o f

these ca s e s m a y b e adequate t o support a "rea sonable

p o s s i b i l i t y" that an item contains trace amounts o f

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biological material ( a s in circumstances where

preliminary screening tests were a lready performed ) ,

many cas e s - including the instant one - lack a

developed fact record on this i s s ue . �1 For examp l e ,

t ouch DNA helped exonerate Frank Sterling, a New York

man who served eighteen years for a 1 9 8 8 murder he. did

not commit.261 In that c a s e , Mr . Sterling was able to

s ecure DNA testing in 2 0 0 6 of clothing that the

perpetrator touched in the course of the fatal beating .

I d . As i t was unknown preci s e l y where the perpetrator

t ouched the clothing during the attack, the lab tested

seventeen areas of the victim' s clothing, finding the

actual perpetrator ' s DNA in onl y two . Id . .

Touch DNA testing p l a yed an equa l l y important role

in the DNA exoneration o f Stephen Cowans from his

conviction o f a 1 9 9 1 shooting o f a Boston police

251Amici a c knowledge but di sagree with Mr . Clark' s couns el ' s a s s ertion at the motion hearing that touch DNA was not l i ke l y to be on the knife handle (A . 2 3 1 ) , and submit that Mr . Clark' s pleadings , including Dr . Cotton ' s affidavit , support a reasonable inference that the perpetrator' s touch DNA could be on the knife and thus the Y-STR test Mr . ·Clark seeks has the potential to provide evidence material to the identity o f the perpetrator o f the crime . See G.L. c . 2 7 8A, § 7 ( b ) ( 4 ) .

261See Innocence Pro j ect , Pre s s Relea s e s , Rochester Man To Be Freed 18 Years After Wrongful Murder Conviction; DNA and Confession Lead to Act ual Perpetrator (Apr . 2 8 , 2 0 1 0 ) available a t http : / /www . innocencepro j e ct . org/ news /Press-Releases . php ( la s t visited February 4 , 2 0 1 5 ) . (A . A . 3 1 - 32 ) .

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office r . 271 I n that ca s e , DNA ana l ys t s i n 2 0 0 3 per-

formed t e s t ing o f a hat , sweatshirt, and drinking

gla s s . �' All were items that the perpetrator l e ft

behind a t the crime scene . DNA anal ys t s found trace

amounts of sweat on the rim o f a hat , s kin cell s on a

sweatshirt , and s a liva from the rim o f a glas s . 2 91

The s e biological material s , invisible unti l tested, a l l

contained the same DNA, which was not Mr . Cowans ' . 301

Additiona l l y, in 2 0 1 4 , Henry Lee McCol lum and Leon

Brown , both convicted in North Carolina o f the 1 9 8 3

rape and murder o f a teenage girl , were exonerated

after another man ' s DNA was found on a cigarette butt

left near the victim' s body. 311 Notably, the DNA on the

cigarette butt was recovered thirty years a fter the

271See S a l t zman & MacDanie l , Man Freed in 1997 Shooting of Officer: Judge Gives Ruling After Fingerpri n t Revela tion, Boston Globe ( Jan . 2 4 , 2 0 0 4 ) , available a t http : / /www . boston . com/news /local /articles / 2 0 0 4 / 0 1 / 2 4 /ma n_freed_in_1 9 9 7 shooting_of_officer ( last visited February 4 , 2 0 1 5 ) . ( A . A . 3 3 - 3 4 ) .

�1I d . S e e a l s o Innocence Proj e c t , Know the Cases: Stephen Cowan s , avai lable a t ttp : / /www . innocenceproj ect . org/Content /Stephan_Cowans . php ( la s t visited February 5 , 2 0 1 5 ) . (A.A . 3 5 - 3 6 ) .

311See Katz and E c kholm, DNA Evidence Clears Two Men in 1983 Murder, NY Time s , Sept . 3 , 2 0 1 4 , at Al , available a t http : / /www . nytime s . com/ 2 0 1 4 / 0 9 / 0 3 /u s / 2 -convicted­in- 1 9 8 3 -north-carolina-murder- freed-after-dna-test s . htm l . ( A . A . 3 7 - 4 0 ) .

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crime , 321 and thu s , presumabl y , thirty years a fter the

police collected it and placed it in storage .

Another examp l e i s Uriah Courtney, exonerated from

h i s 2 0 0 4 rape conviction after DNA t e s t s found another

mal e ' s s kin cells on the victim' s shirt and s kirt . 331

The perpetrator was alleged to have put h i s chin on the

victim' s shirt . li1 A CODIS s earch of the DNA profile

l in ke d t o a man s imilar in appearance to Courtney, who

l ived near the crime scene . 35/

The above cases not only highlight the importance

of t ouch DNA analysis to exonerat ions , but a l s o

i ll u s t rate how t h e mot ion j udge ' s reading o f Chapter

2 7 8A thwarts the legis lative intent of the statute . In

Sterling and Courtney, there was no way for the

defendants to demonstrat e , prior to testing, that the

perpetrators touched the victims ' clothing in the

spe c i f i c areas that were tested, let a l one that there

was a reasonable p o s s ibility that the perpetrat o r s '

32/I d .

331See I nnocence Pro j ect , Know The Cases : Uriah Courtney, available at http : / /www . innocencepro j ect . org/ Content / U riah Courtne y . php ( last visited February 5 ,

. -

2 0 15 ) . ( A . A . 4 1- 4 2 ) .

341 K . Davi s , DNA Clears Man Convicted of Rape, U-T San Diego , available . at http : / /www . ut sandiego . com/news/ 2 0 13 / j un / 2 5 /dna-uriah-courtney-rape-innocence-proj ect ( last v i s.ited February 5 , 2 0 15 ) . ( A . A . 4 3 - 4 4 ) .

351 Innocence Proj ect , Know the Cases : Uriah Courtney, supra at n . 32 . (A . A . 4 1- 4 2 ) .

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s kin c e l l s would b e present i n these areas . 361 Li kewise

i n McCollum and Brown , there was no way for the parties

t o determine , prior to testin g , that there was any part i -

cular l i ke lihood o f finding trace amounts of biological

material on the thirty year-old evidence . Neverthe l es s ,

the testing in these cases produced definit ive proof

that these four individual s had been wrongful ly con-

victed of serious crimes they did not commit .

Likew i s e , in Cowans ' c a s e , there was no informa-

tion in advance of t e st ing - a side from common sense -

to support a conclusion that the rim of the perpet-

rator ' s hat or the lip of the g l a s s might contain the

perpetrator' s sweat or s aliva . S imilarly, the�e was no

way to j udge the l i ke l ihood that the perpetrator had

left h i s skin cell s behind on a sweat shirt found at the

crime s cene . Unt i l DNA testing confirmed the presence

of DNA, these trace sources of biological material were

invi sible and unknowabl e .

Analyzing t h e s e c a s e s under Chapter 2 7 8A, it i s

highly unlikely that any of the above individuals would

have obtained the DNA testing that e stabli shed their

innocence if they had first been required to demon­

s t rate a " reasonable pos sibility" that the evidence

l&.!Davi s , DNA Clears Man Convicted of Rape, supra at n . 3 4 ( explaining that only the victim' s testimony, that her attacker put h i s face on her shoulde r , informed them "where to look" ) . ( A . A . 4 4 ) .

- 3 0 -

they sought to t e s t contaihed a trace of bioLogical

materia l . However, Amici a s s e rt that they wou l d each

have l i ke l y met the requirements of showing that the

evidence exis ted and the DNA te sting sought had the

potentia l to result in evidence that is material to the

ident ity of the perpetrator of the crime s . This Court

" cannot [ and should not ] interpret statutory language

in a vacuum, ignoring the Legi s lature ' s purpos e in

enacting the statute and obl ivious to the time in which

[ the languag e ] is used . " Commonwealth v . Bundy, 4 65

Mas s . 5 3 8 , 5 4 5 ( 2 0 1 3 ) ( internal quotations omitted ) . 371

With the l e s sons of the above DNA exonerations in mind,

it is clear that the motion j udge ' s reading of Chapter

2 7 8A cannot stand, and that this Court should find that

Mr . Clark has met his burden under the statute .

2 . The Law Enforcement Community Widely Recognizes the U t i l ity of Touch DNA T e s ting in Cold Case Investigat ions .

The law enforcement community rout inely analyzes

crime scene evidence for potent i a l touch DNA or other

trace biological materials without first knowing that

E1see a l s o Brown v . Entertainment Merchants Ass ' n , 1 3 1 S . Ct . 2 7 2 9 , 2 7 4 2 ( 2 0 1 1 ) (Al i t o , J . , concurring ) ( "We should not j ump to the conclusion that new technology i s fundamenta l l y the same a s some o lder thing with which we are fami l i a r . And we should not hastily dismi s s the j udgment of legislator s , who may be in a better position than we are t o a s s e s s the imp lications of new techno­logy . " ) ; and Ni v . S l ocum , 1 9 6 Cal . App . 4th 1 6 3 6 , 1 6 5 2 ( 2 0 1 1 ) ( " S tatutory interpretation must be prepared to

accommoda t e technological innovation, i f the technology i s otherw i s e consis tent with the s tatutory scheme . " ) .

- 3 1 -

the evidence contains DNA . The practice regularly

occurs in both active and cold case investigations . 381

In addi t i o n , s ince the mid- 1 9 9 0 s , with the advent of

PCR DNA t e sting methods , law enforcement agencie s have

recommended test ing an increasing number of items not

previously considered suitable for DNA analys i s . 391 In

1 9 9 7 , when �esearchers dis covered that forensic DNA

tests could i s olate and analyze touch DNA from micro­

scopic s ki n . c e l l s left behind on obj ect s , 401 this

discovery "opened up possibilities and l ed to th�

collection [by law enforcement ] o f DNA from a wider

range of exhibits ( including : tools , clothing, knive s ,

vehicle s , f irearms , food , b�dding , condoms , l i p

cosmetics , wal l et s , j ewelry, gla s s , s ki n , pape r ,

cabl e s , window s , doors and stone s ) . nQI

Directly related to Mr . Clark' s reques t under

Chapter 2 7 8A, a 1 9 9 9 study examined the ability o f

laboratory analysts t o recover touch DNA from wooden

�1See N I J , Using DNA to Solve Cold Cases at 2 9 .

l�.IR . Wickenhe i s e r , Trace DNA : A Review, Discussion of Theory, and Application of the Transfer of Trace Quan t i t i es of DNA Through Skin Con tact, 4 7 J . Forens i c Science 4 4 2 , 4 4 2 ( 2 0 0 2 ) .

�Balogh et a l , Fingerprints from Fingerprin t s, 1 2 3 9 Int ' l Congres s Series 9 5 3 , 9 5 6 ( 2 0 0 3 ) ; van Oorschot & Jones , DNA Fingerprin ts from Fingerprin ts, 3 8 7 Nature 7 6 7 ' 7 67 ( 1 9 9 7 ) .

ll1van Oorschot , Forensic Trace DNA at 2 . (A . A . 2 ) .

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kni f e handles discarded at crime scene s . 421 There ,

researchers concluded that it was possible to get

testable DNA from kni f e handles "with a high degree o f

reliability, " and the results from one knife handle led ·

t o the succe s s ful pros ecution of the perpetrator who

used that i tern in the commi s s ion of the crime . 431

Thu s , s ince the l ate 1 9 9 0 s and early 2 0 0 0 s , touch

DNA has gone from being a source of biological material

about which several forensic experts were s keptical , ll1

to being widely recogn i z ed as a reliable source of

information for use by law enforcement in the investi-

gation of crime s . 451 For examp l e , in 2 0 1 3 , a Utah lab

g;Wi c kenheiser & Challoner, Suspect DNA Profi l es Obtained From The Handles Of Weapons Recovered At Crime Scenes 1 , 1 , 6-7 ( 1 9 9 9 ) . (A . A . 4 5 , 5 0 - 5 1 ) .

431 I d . a t 2 - 3 . ( A . A . 4 6- 4 7 ) . This early study a l s o found that the STR ' tests were succes s ful even a fter chemicals were used to analyze the knife handle for fin

.gerprint s .

I d . a t 3 . ( A . A . 4 7 ) .

ll1S e e van Oorscho t , Forensic Trace DNA at 2 ( " In the early years of trace DNA profiling there were several s ceptics within the forensic community about the p o s s i b i l i t y of obtaining DNA profiles from touched obj e ct s . Howeve r , a fter conducting their own re search they revised their views on trace DNA . In addition to the s cept i c s , there were forens i c laboratory managers who d i s l i ked the potential difficulti e s trace DNA brought , a s they foresaw a s igni ficant increase in sample submi ss ions which they did not have the necessary re sources to proces s . " ) . ( A . A . 2 ) .

451Wi l l iamson, Touch DNA at 1 ; and K . Johnson, ' Touch' DNA Offers Hope In Col d Inves t i gations, USA Today ( Sept . 2 3 , 2 0 0 8 ) , availabl e at http : / /usatoday3 0 .

usatoda y . com/tech/science / 2 0 0 8 - 0 9- 2 2 -touchdna N . htm ( la s t v i s ited February 4 , 2 0 1 5 ) .

- -

- 3 3 -

succes s fully extracted touch DNA from a rock u s e d t o

b ludgeon t h e victim in a 1 9 9 5 murder c a s e , leading t o

t h e perpetrator' s arrest . �1

Similarly, in 2 0 0 8 , a lab tested a scrap of

l i gature used in a 1 9 9 6 rape in Maryland, recovering a

complete DNA profile from touch DNA on clothing left at

the crime scene . ll1 The test ing res u l t s once again

enabled authorities to ident i fy the perpetrator .

Although there was no obj ective evidence in advance o f

t e s t ing that biologica l material would b e present on

the clothing, inve s t i gators knew that the perpetrator

had struggled with the victim and tied her down . �1 As

with the exoneree s ' case s , the pres ence o f biological

material could only be confirmed at the laboratory .

The routine investigatory use o f DNA analysis to

find touch DNA in cases with little to no information

that any trace biological material s are on the evidence

being tested underscores the scient i fi c and forens i c

�1M . Teague , Better than ' CSI ' : High-tech DNA Vac u um Cracks Cold Case, Al-Ja zeera America, TechKnow Blog ( Feb . 1 8 , 2 0 1 4 ) , available a t http : / / america . al j a zeera .

com/watch/shows /tech know/blog/ 2 0 1 4 /2 / 1 8 /better-than- csi -hightechdnavacuumcrackscoldca s e . html ( la s t visited February 6, 2 0 1 5 ) . ( A . A . 5 5 - 5 7 ) .

il1M . Z apo.tosky, DNA Technology Moves Forward, Wash .

Post . ( Sept . 2 2 , 2 0 0 8 ) , available at http : / /www . wa shingtonpost . com/wp-dyn / content /arti c l e /2 0 0 8 / 0 9 / 2 1 /AR 2 0 0 8 0 92 1 0 2 2 7 6 . html ( last visited February 6 , 2 0 1 5 ) . ( A . A . 5 8 - 6 0 ) .

W r d . ( A . A . 5 8 ) .

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impract i cability of a " reasonable possibility" s tandard

under Chapter 2 7 8A . As shown b y the exoneree s ' cases ,

the above cold case example s , and Wickenheiser ' s study

of kni fe handl e s , supra at n . 4 2 , a movant under Chapter

2 7 8A wil l o ften be unable to overcome this hurdl e unt i l

the item i s sent t o a laboratory and t e s t e d . Under the

motion j udge ' s. interpretation, even when a movant has

shown that the evidence exists and that the results of

analysis of that evidence have the potent ial to be

material to the identity of the perpetrator, the motion

would s t i l l fai l . Given the Legi s l ature ' s intent for

Chapter 2 7 8A to ease access to evidence and forensic

analysis for defendants a s s erting their innocenc e ,

Wade , 4 67 Mas s . at 5 0 4 , this Court cannot allow this

interpretation of the statute t o stand . For these .

reason s , this Court must reverse the motion j udge ' s

decision, find that Mr . Clark ' s motion meets the

s tatutory requi rements of Chapter 2 7 8A, and remand to

the trial court .

CONCLUS I ON

This case implicates the righ t s of a l l future

Massachusetts defendants see king to perform modern

forensi c or s cient ific analysis of evidence as a first

step in estab l i s hing their innocence of the crimes of

which they have been convicted . The plain language and

legislative hi story of Chapter 2 7 8A, as well a s

important l e s s ons learned from p a s t DNA exonerations

and cold case investigation s , support the view that

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this import ant new law was meant t o expand acce·s s to

post-convict1on forens i c analysis needed t o substan-

tiate c l aims of innocence . Amici urge this Court to

rej ect the motion j udge ' s unduly restrictive interpre­

tation of this important law -- which inserts a burden

the Legi s l ature specifica l l y excluded from the statute

-- and t o find that Mr . C l a r k has satis fied his burden

under Chapter 2 7 8A of estab l i shing that the evidence he

seeks to test exists and that the requested Y-STR

ana l y s i s o f this evidence has the potent ial t o bear

material l y on his ident ity a s the perpetrator .

Respectfully submitted,

L I SA M . KAVANAUGH BBO # 6 4 7 2 61 Director l kavanaugh@publ iccounsel . net

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February, 2 0 1 5 .

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THE INNOCENCE NETWORK 4 0 Worth Street , Suite 7 0 1 New York, NY 1 0 0 1 3 T e l : 2 1 2 - 3 6 4 - 5 3 7 0

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CERTIFICATE OF COMPLIANCE

I , I ra L . Gant , hereby certify pursuant to Mas s .

R . App . P . 1 6 ( k ) that this brief comp l i e s with the

Ma s s a chusetts Rul e s of Appellate Procedure and the

rules of this court pertaining to the f i l ing of briefs .

BBO # 6 7 8 7 0 6 COMMITTEE FOR PUBLIC COUNSEL SERVICES INNOCENCE PROGRAM 2 1 McGrath Highway Somerv i l l e , MA 0 2 1 4 3 Tel : 6 1 7 - 62 3 - 0 5 9 1

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STATUTES ADDENDUM

Massachusetts General Laws Chapter 278A

Post Conviction Access to Forensic and Scientific Analysis

§ 1 . Definitions .

As used in this chapte r , the following words shal l , unl e s s the context clearly requires otherw i s e , have the fol lowing meanings : --

''Analys is " , the process by which a forensic or scient i fic technique is applied to evidence or b i ologica l material to ident ify the perpetrator of a crime .

" Biological materi a l '' , a sexual a s sault forensic examination k i t , semen, blood, s a l iva , hair, s kin t i s sue or other ident ified biological substance .

'' Convibt ion" , a verdict or finding 6f guilty, a plea o f guilty, a plea of nolo contendere or an adj udication of del inquency as a j uveni le entered by the trial court .

'' Exhaustive testing " , analys i s of a particular item of evidence or biological material that precludes rep l i cate analys i s of the evidence or biological materia l .

" Factually innocent '' , a person convicted of a , criminal offense who did not commit that offens e .

" Governmental entity" , an official body of the commonwealth, or of a county, city or town within the commonwealth .

" Ident ity'' , the moving party ' s ident ity a s the perpetrator of the offense for which the moving party was convicted in the underlying case .

''Moving party" , a person who files a motion under this chapter .

" Post conviction" , indicates any t ime after which a conviction has been entered .

" Prosecuting attorney'' , the district attorney for the dist rict in which the moving party was convicted or the attorney general of the commonwealth .

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" Replicate analys i s '' , the dup l i cation o f a n analysis performed on a particular item o f evidence or biologica l material .

" Underlying c a s e '' , the t r i a l court proceedings that resulted in the conviction of the moving part y .

"Victim" , any natural person who suffered direct or threatened phys i ca l , emotional or financial harm as the result of the commi s s ion or attempted commi s s ion of the crime or del inquency case that is the subj ect of the underlying cas e ; "victim" sha l l a l s o include the parent , guardian , legal repre sentat ive or administrator or executor o f the e state o f such person if that person i s a mino r , incompetent or deceased .

§ 2 . Motion -- Who May File .

A person may f i l e a mot ion for forens i c or scient i fic analysis under this chapte r i f that person : ( 1 ) ha s been convicted o f a criminal o f fense in a court o f the commonwea l t h ; ( 2 ) is incarcerated in a state prison, house o f correction, is on parole or probation or whose l iberty has been otherwise restrained a s the result of a conviction; and ( 3 ) asserts factual innocence o f the crime for which the person has been convicte d .

This chapter shal l not b e construed to prohibit the performance of forensic or scientific analysis under any other circumstance s , including by agreement between the person convicted of a criminal o f fense and the prosecuting attorney .

§ 3 . Motion -- Contents ; Filing ; Affidavit .

( a ) A person seeking relief under this chapter sha l l file a motion in the court in which the conviction was entered, using the same caption and docket number as identified the underlying case .

( b ) The motion sha l l include the fol lowing information, and when relevant , sha l l include specific references to the record in the underlying case or to a f fidavits that are filed in support o f the motion that are s i gned by a person with personal knowledge of the factual basis of the motion :

( 1 ) the name and a description o f the reque sted forensic or scient ific analys i s ;

( 2 ) information demonstrat ing that the reque sted analysis is admi ssible as evidence in courts of the commonwealth;

( 3 ) a descript ion o f the evidence or biological material that the moving party seeks to have

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analyzed or tested, including its location and chain o f custody i f known ;

( 4 ) informat ion demonstrating that the analys i s has the potential to result in evidence that is material to the moving party ' s identification as the perpetrator of the crime in the underlying case ; and

( 5 ) information demonstrating that the evidence or biologica l material has not been subj ected to the reque sted analysis becaus e :

( i ) the requested analysis had not yet been devel oped at the time of the convi ction;

( i i ) the results o f the requested analysis were not admi s s ible in the courts of the commonwealth at the t ime o f the conviction ;

( i i i ) the moving party and the moving party ' s attorney were not aware o f and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and convict ion ;

( iv ) the moving party ' s attorney in the underlying case was aware at the time of the conviction of the exi stence of the evidence or biological material , the results o f the reque sted analysis were admi s s ible as evidence in courts of the commonwealth, a reasonably effect ive attorney would have sought the ana l y s i s and either the moving party ' s attorney failed to seek the analysis or the j udge denied the report ; or

( v ) the evidence or biological material was otherwi se unavai lable at the time o f the convi ction .

( c ) I f the moving party i s unable to include for f i l ing with the motion any o f the items or information described in subsection ( b ) , or if the moving party lacks i t ems or information nece s sary to establish any o f the factors l i sted in subsection ( b ) o f section 7 , the moving party shall include a description o f e fforts made to obtain such items and information and may move for dis covery o f such items or information from the prosecuting attorney or any third part y .

( d ) The moving party sha l l file with the motion an affidavit stating that the moving party is factually innocent of the o f fense o f conviction and that the requested forensic or scient i f i c ana lysis w i l l support the claim of innocence . A person who p l eaded guilty or nolo contendere in the underlying case may f i l e a mot ion . The court sha l l not find that identity was not or could not have been a material issue in the underlying case because of the plea . A person who i s a l l e ged t o hav e , o r admits to having, made a statement that is or could be incriminating may file a motion under this chapter . The court shall not find that identity was not or should not have been a material i s sue in the underlying �ase because the moving party made , or is a l l eged to have made , an incriminating

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statement . I f the moving party entered a plea o f guilty or nolo contendere to the o ffense o f conviction or made an incriminating statement , the moving party shall state in the a ffidavit that the claim of factual innocence i s made notwithstanding the plea or incriminating statement .

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( e ) The court sha l l expediously review a l l motions filed and sha l l dismi s s , without prej udice , any such mot ion without a hearing if the court determine s , based on the information contained in the motion, that the motion does not meet the requirements set forth in this section . The prosecuting attorney may provide a response to the motion, to a s s i s t the court in considering whe.ther the mot ion meets the requirement under this section . The court sha l l notify the moving party and the prosecuting attorney as to whether the mot ion is sufficient to proceed under this chapter or is dismi s sed .

§ 4 . Response by Prosecuting Attorney .

( a ) The moving party shall f i l e a motion under s ection 3 with the court that adj udicated the underlying case and sha l l s e rve a copy of the motion on the pros ecuting attorney .

( b ) I f the motion i s not dismi ssed by the court under subsection ( e ) of section 3 , the pros ecuting attorney sha l l file a re sponse with the court within 60 days a fter the date upon which the court i s sues notice under said subsection ( e ) o f said section 3 , and sha l l s imultaneously serve the re sponse o n the moving part y . The pros ecuting attorney may request additional time in which to file the respons e , which the court may grant for good cause show.n .

( c ) The prosecuting attorney ' s response shall include any specific legal or factual obj ections that the prosecuting attorney has to the reque sted analys i s .

§ 5 . Indigent Petitioners .

The court may a s s ign or appoint counsel to represent a moving party who meets the definition o f indigency under sect ion 2 of chapter 2 1 1 0 in the preparation and presentation of motions filed under this chapter .

§ 6 . Hearing .

( a ) ihe court sha l l order a hearing on the mot i on i f the mot ion meets the requirements o f s e ction 3 . The

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moving party sha l l be present for the hearing unless the moving party waives the party ' s presence at the hearing .

( b ) The j udge who conducted the t r i a l or accepted the moving party ' s plea of guilty or nolo contendere in the under l ying case sha l l conduct the hearing i f possible .

§ 7 . Findings of Fact and Conclusions of Law ; Burden of Proof; Discovery .

( a ) After reviewing the motion, the prosecuting attorney ' s response and a fter holding a hearing , the court sha l l state findings o f fact and conclus ions of law on the record, or sha l l make written findings of fact and conclusions o f law that support the decis ion to a llow o r deny a motion brought under section 3 .

( b ) The court sha l l a l low the reque sted forensic or scientific analys i s if each o f the following has been demonstrated by a preponderance o f the evidence :

( 1) that the evidence or biological material exi s t s ;

( 2 ) that the evidence o r biological mat erial has been subj ect to a chain o f custody that is sufficient to e stablish that it has not deteriorated, been subst ituted, tampered with, replaced, handled or a ltered such that the results o f the requested ana l y s i s would lack any probative value ;

( 3 ) that the evidence or biological material ha s not been subj ected to the reque sted ana lysis for any o f the reasons set forth in clauses ( i ) t o ( v ) , inclusive, o f paragraph ( 5 ) o f subsection ( b ) o f s e ct ion 3 ;

( 4 ) that the requested analysi� has the potential to result in evidence that is material to the moving party ' s ident ificat ion as the perpetrator of the crime in the underlying case ;

( 5 ) that the purpose o f the motion i s not the obstruction of j ustice or de l a y ; and

( 6 ) that the results o f the particular type o f analysis being reque sted have been found to be admi s s ible in courts of the commonwealth .

( c ) The court on mot ion o f any party, a fter notice to the opposing party and any third party from whom dis covery i s sought , and an opportunity t o be heard, may authorize such discovery a s provided for under Rule 3 0 ( c ) ( 4 ) of the Massachusetts Rule s o f Criminal Procedure , from either party or any third party as i s deemed appropriat e , subj ect to appropriate protect ive orders or an order to the party see king discove ry to produce reciprocal discovery .

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Such discovery may include items and biological mat eria l s from third part i e s , provided the party see king discovery demonst rate s that ana lys i s of these items or biological material wi l l , by a preponderance of the evidence , provide evidence material to the ident ification of a perpetrator of the crime .

I f , in response to a motion made under subsection ( c ) o f section 3 , the court finds good cause for the

moving party ' s inabil ity to obt ain items or information requi red under subsection ( b ) of said section 3 and subsection ( b ) of section 7 , the court may order discovery to a s s i s t the moving party in identi fying the locat ion and condition of evidence or biological material that was obtained in relation to the underlying cas e , regardless of whether it was introduced at trial or would be admi s s ible . The court , when considering such discovery request s , shall not require the establishment of a prima facie case for relief under Rul e 30 of the Massachusetts Rules o f Criminal Procedure .

§ 8 . Analysis -- Forensic Services Provider .

( a ) I n a l l owing a mot ion under section 3 , the court sha l l specify condi t ions on the analys i s , including , but not l imited t o , the transportation, handling and return o f evidence or biological material s , to protect the integrity o f the evidence or biological material and the analys i s .

( b ) The prosecuting attorney and the moving party shall agree on a forensic services provider accredited by an accreditat ion body that is a s i gnatory to the International Laboratory Accreditat ion Cooperation Mutual Recognition Agreement and o f fers forensic laboratory accreditation services to conduct the analys i s , which, except in the case of exhaust ive testing, may include the forensic and technology center of the state police crime laboratory or the Boston pol ice department crime l aboratory unit s .

( c ) I f the prosecuting attorney and the moving party are unabl e to agree on a forensic services provider, the prosecuting attorney and the moving party shall submit t o the court a l i st o f not more than 3 forensic s ervices providers who are accredited by an accreditation body that is a s i gnatory to the I nternat ional Laboratory Accreditation Cooperation Mutual Recognition Agreement and o ffers forensic laboratory accreditation services and have the capability to perform the requested analys i s . The court shall s elect a forensic services provider from either l i s t . For purpos e s o f this section, " l aboratory'' shall

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refer t o the forensic services provider s e l e cted under this subsection or subsection ( b ) .

( d ) The laboratory sha l l give equal access to its personnel , opinions , conclus i ons , reports and other documentat ion to the pros ecuting attorney and the moving part y .

( e ) The laboratory sha l l retain and maintain the integrity of a sufficient port ion of the evidence or biological materi a l for replicate analys i s . I f , a fter initial examination o f the evidence or biologica l materi a l , but before the actual analys i s , the laboratory determines that there is insufficient material for replicate analys i s , it shall s imultaneously not ify in writing the prosecuting attorney , the moving party and the court . Exhaustive testing shall not occur except by specific order of the court . In the event that exhaustive testing is so authori zed, upon request of e i ther party, the court shall ma ke such orders to ensure that repres entatives o f the moving party and the prosecuting attorney have the opportunity to observe the analys i s , unl e s s such observation is incons i stent with the pract ices or

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protocol s o f the laboratory conduct ing the analys i s .

( f ) The moving party shal l cooperate with the laboratory . At the laboratory ' s or the prosecuting attorney ' s request and upon court orde r , the moving party s h a l l provide biological samples to the laboratory or to law enforcement personne l . I f the moving party unrea sonably f a i l s to cooperate with such orders , the court may deny the motion with prej udice .

§ 9 . Analysis - - Time .

Upon a l lowance o f a mot ion under section 3 , analysis sha l l take place a s soon a s pract icable .

§ 10 . Analysis -- Costs .

The costs o f the analysis shall be pai d : ( 1 ) by the moving party i f the moving party

does not meet the definition o f indigency under section 2 of chapter 2 1 1 0 and has sufficient means t o make such

.payment ; ( 2 ) i f the moving, party meets the definition

of indigency under said s e ct ion 2 o f said chapter 2 1 1 0 , a s an extra fee o r cost under s ections 27A through 2 7 G , inclusive , o f chapter 2 6 1 ; o r

( 3 ) i f a person i s indigen t , but has the ability to pay a reduced fee as defined under said section 2 o f said chapter 2 1 1 0 , by the moving party to the maximum feasible amount possible given the

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financial re sources o f the moving party a s the court deems equitable .

§ 1 1 . Effect of Proceedings on Sentence .

Proceedings under this chapter sha l l not stay or otherwi s e interfere with a term of incarceration, paro l e , probation or other sentence imposed .

§ 12 . Results of Analysis -- Disclosure .

( a ) The results o f the analys i s sha l l be s imultaneously disclosed to the moving party, the prosecutin� attorney and the court .

( b ) The court sha l l , at the reques t o f a party or on i t s own init iative , order production of the underlying laboratory data , documents and notes .

§ 1 3 . Results of Analysis -- Inconclusive ; Additional Analysis .

I f the analysis i s inconclusive , the court may order any additional analysis requested if the court concludes that the requirements of subsection ( b ) o f section 7 a r e met .

§ 1 4 . Victim Notification .

( a ) I f a motion i s filed under section 3 , the prosecuting attorney shall not ify the victim of the crime in the underlying case .

( b ) The pro secuting attorney sha l l notify the victim i f the court allows a motion for forens ic or scient i f i c analys i s and, if the victim is notified o f the a l lowance o f the motion, shall promptl y not i fy the victim of the result of the analys i s .

§ 15 . Waiver Prohibited .

The right to f i l e a motion under this chapter shall not be waived . This prohibit ion of any waiver include s , but is not l imited t o , any stated or unstated waiver that i s or i s a l l eged to be part of any agreement or understanding related to any plea of guilty or of nolo contendere or to any sentencing or appellate proceeding or to any correctional placement or conditions .

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§ 1 6 . Evidence and Biological Material -- Retention .

( a ) Any governmental entity that i s in possess ion o f evidence or biological material that i s collected for its potent ial evidentiary value during the inve stigation of a crime , the pro secution of which results in a conviction, sha l l retain such evidence or biological material for the period of time that a person remains in the custody of the commonwealth or under parole or probation supervision in connection with that crime , without regard to whether the evidence or biological material was introduced at tria l . Each governmental entity sha l l retain a l l such evidence or biological material in a manner that is reasonably des igned to preserve the evidence and biological material and to prevent its destruction or deterioration . The evidence or biological material need not be preserved i f it is to be returned to a third party or if it is of such a s i z e , bul k or phys ical character a s to render re.tention impracticable .

( b ) The director o f the crime laboratory within the department of state pol ice , in consultation with the forensic sciences advi sory board established by s ection 1 8 4A of chapter 6 , shall promulgate regulations governing the retent i on and preservat ion of evidence or biological material by any governmental entity . The regulat ions sha l l include s tandards for maintaining the integrity of the materials over time , the designation o f officials at each governmental entity with custodi a l responsibility and requirements f o r contemporaneously recorded documentation o f individuals having and obtaining custody of any evidence or biological material .

§ 1 7 . Immunity ; Willful or Wanton Misconduct or Gross Negligence .

( a ) Governmental officials and employees acting in good faith shall not be l iable in a civil or criminal proceeding for any act under this chapter .

( b ) I f a governmental entity responsible for the preservation of evidence or biological material engages in w i l l ful or wanton misconduct or gross negligence , which results in the deterioration or destruction o f evidence o r biological material so that a laboratory i s unabl e to perform adequate o r proper analys i s , that entity shall be subj ect to proceedings for contempt .

( c ) Nothing in this chapter shall create any cause o f action for damages against the commonwealth or any o f its subdivi s ions or officers, employee s , agents or subdivision s , except as provided in this section .

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§ 1 8 . Appeal .

An order a l l owing or denying a motion for forensic or scient i f i c analysis f i led under this chapter shal l be a final and appealable order . I f the moving party appeals an order denying a motion for forensic or scientific analysis the moving party shal l file a notice o f appeal with the court within 30 days after the entry of the j udgment .

Current through Act s 5 0 5 o f the 2 0 1 4 Legis lat ive S e s s ion

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AMI C I ADDENDUM

Table of Content s

van Oorschot , Ballantyne & Mitche l l , Foren s i c Tra ce DNA : A Review, 1 : 1 4 Inve stigat ive Genetics ( 2 0 1 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A . A . 1

J . Butler , Adva n ced Topi cs in Foren s i c DNA Typing: Me thodo l o gy ( 2 0 12 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A . A . 18

Innocence Proj ect, Pre s s Releas e s , Rochester Ma n To Be Freed 18 Years After Wrongful Murder Convi c t i on ; DNA and Confession Lead to Actual Perpe tra tor (Apr . 2 8 , 2 0 1 0 ) . . . . . . . . . . . . . . . . . . . . . . A . A . 3 1

S a l t zman & MacDanie l , Man Freed in 1997 Sh ooting of Offi cer : Judge Gives Rulin g After Fingerprin t Revel a ti on , Boston G l obe ( Jan . 2 4 , 2 0 0 4 ) . . . . . . . . . A . A . 3 3

Innocence Proj ect, Know the Cases : Stephen Cowans . . A . A . 3 5

Katz & E c kholm, DNA Evi dence Clears Two Men in 1983 Murder, NY Time s , Sept . 3 , 2 0 1 4 . . . . . . . . . . A . A . 3 7

Innocence Proj ect, Kn ow the Cases : Uri ah Courtney . . A . A . 4 1

K . Davi s , DNA Clears Ma n Convi cted of Rap e , U-T San Diego . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A . A . 4 3

Wickenhe i s er & Cha l l oner, Suspe ct DNA Profi l es Ob tained From The Handles Of Weapons Re covered At Crime Scenes ( 1 9 9 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . A . A . 4 5

M . Teague , Bet ter Than 'CSI ' : Hi gh - t ech DNA Va cuum Cra cks Cold Ca se, Al-Jazeera America , TechKnow Blog ( Feb . 1 8 , 2 0 1 4 ) . . . . . . . . . . . . . . . . . . . . A . A . 5 5

M . Z ap ot o s ky , DNA Techn o l o gy Moves Forward, Wa sh . Post . ( Sept . 2 2 , 2 0 0 8 ) . . . . . . . . . . . . . . . . . . . . . A . A . 5 8

Commonwealth vs . Lykus , No . 73CR4 3 5 5 8 , Sup . Ct . , Memorandum o f Deci sion and Order ( Jan . 3 1 , 2 0 1 5 ) . A . A . 6 1

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va n Oorschot tl al. lnvrstlgativt �lla 2010, 1:14 httpJ�.Inwstlgltlvegenetlcs.com/contenlll/1/14 - Investigative - Genetics R E V I E W Open Access

Forensic trace DNA: a review Roland AH van Oorschot'', Kaye N Ballantyne2, A John Mitchell3

Abstrad DNA analysis Is frequently used to acquire Information from biological material to aid enquiries associated with criminal offences, disaster victim identification and missing persons investigations. As the relevance and value of DNA profiling to forensic investigations has Increased, so too has the desire to generate this Information from smaller amounts of DNA. Trace DNA samples may be defined as any sample which falls below recommended thresholds at any stage of the analysis, from sample detection through to profile Interpretation, and can not be defined by a precise plcogram amount Here we review aspects associated with the collection, DNA extraction, amplification, profiling and interpretation of trace DNA samples. Contamination and transfer Issues are also brieOy discussed within the context of trace DNA analysis. Whilst several methodological changes have facilitated profiling from trace samples In recent years It Is also clear that many opportunities exist for further Improvements.

Aims and scope Trace DNA analysis has become an integral part of a forensic laboratory's workload and a key tool for Invest!· gators. Accordingly, there has been considerable resenrch conducted In order to Investigate the character­istics of trace DNA and the best methods to Improve Its collection, ompllficatlon and interpretation. This review alms to provide a brief history of trace DNA and to summarize some of the methods mnd techniques used to collect, amplify and Interpret the smallest samples encountered In forensic biology. Although It Is not pos· slble to provide an exhaustive description of all minu­tiae, or all of the numerous cases where trace DNA has provided key evidence, we hope that the reader will gain an appreciation of the complex nature of trace DNA, the current state of knowledge and the areas where research remains to be done.

Brief history Brief history of polymerase chain reaction (PCR)-based DNA profiling In forensic asework In the early 1990 s, forensic science started moving away from markers such as DlS80, consisting of large core repeat units and overall large amplicon size 11·41 to short tandem repeats (STRs) [5-12]. The first widely used commen:lal ldts deslgned for the typing of multiple

• ConHPQndence· rc�nd vanoorW.Oifpollce viC.!jOV.<l\.1 1For�Nlc Services Oepirtmrnl. Vlctcrla PoUce. 31 Fcllenllc Ou�. M.ld� 3085, VICID!I.I, Ausnil� Ful list al author lnforrNtion Is iVailable 11 ll>e end al the ;anlde

STRs In a single reaction became available In the late 1990s/eArly 2000s (13·18}. PCR allowed the generation of genetic Information from minute amounts of DNA; multiplexing of primers 111lowed the generation of genetic data from multiple sites from the same aliquot of DNA thus reducing sample consumption; fiuorescent primers assisted multiplexing 11nd new automated typing systems; and the use of STRs Improved the chances of profiling poor quality samples. As the desire for higher discrimination power between individuals arose, the number of loci targeted by a single multiplex Increased and there are now a number of commercially available, well-validated kits, Incorporating 15 • 16 highly variable STR loci (plus amelogenln), such as PowerPiex• ESX

and ESI systems (19-21) and AmpFJSTR' NGM [22). These new kits also Include Improvements In primer design, buffer composition 1111d amplification conditions which improve the analysis of trace samples (19-22).

The desire to compare DNA profiles between cases over time and across jurisdictions (and the associated legislations In many countries mround the world sup­porting the establishment of N:�tlonal DNA dat;bases) dictated that the forensic community select a core set of loci for the generation of DNA profiles. The lnterna· tlonal forensic community Identified a small set of core loci mainly consisting of tetranucleotlde tandem repeat loci [23,24). Although the loci used by each Jurisdiction are not always the same, there is a considerable amount of overlap In the loci used among the Jurisdictions.

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v•n Oo11cho1 rr al. lnreJ�IgatJvt Gtnetla 2010. 1:14 hnp".//WwNJnvestlgiltlvtgenetla.comlcontentll/1/14

Although the establishment of a coii5C!nsus set of core STR loci allows comparisons of profiles across jurlsdlc· tlons and over time through use or national dntabases, It may also be simultaneously sliDing opportunities for the improvement In the quality and efficiency of the service provided. Changing the type of markers used, from STRs to single nucleotide polymorphlsms (SNPs), may result in increased success from more forensic samples and be more adaptable to high-throughput and/or min· laturlzed typing systems. Theoretically, the smaller ampllcon sizes or SNPs lend themselves well to the pro· duction of genetic profiles from both degraded and trace DNA. Their reduced level of polymorphism rela­tive to the routinely used STRs Is, however, a disadvan· tage. With sufficient numbers this can be overcome, although It may make mixture resolution more difficul� Whilst sensitive SNP·based Individualization profiling systems are available [25,26] they are not routinely used.

A major Improvement that the forensic community has developed to assist in the typing of degraded and trace DNA has been the recent re-englneerlng of pri· mers of the core STR systems, such that they are posi· tioned closer to the repeat units In order to reduce the length of the amplified nanking regions [27·36]. The use or mobUity-shlfters (non-nucleotide linkers, Applied Blo­systems, CA, USA ) and novel multiplex design strale­gles (such as Promega's ESJ and ESX kits (WI, USA)] have allowed all the core COOlS (Combined DNA Index Systems) and European set of loci to be amplified as 'mlniSTR' Joel, thus Increasing the profiling success rote from difficult samples [19,35,37].

Brlof hl5tory of biological sample types collecled and typod for foronsle Investigations PCR·based methodologies allowed for the generation of profiles from types of samples not previously examined • such as cigarette butts (38}, single human hairs (39}, urine [40], fingernail scrapings (41} and bite marks [42] • and also Improved the success In generating useful profiles from old, burnt, degraded bone and tissue sam· pies (34.43-50).

In 1997 It was reported thot DNA profiles could be generated from touched objects (51}. This opened up possibilities and led to the collection of DNA from a wider ranae of exhibits (includlna: tools, dothlnJ knives, vehicles, firearms, food, bedding, condoms, Up cos­metics. wallets, Jewellery, glass, skin, paper, cables, win· dows, doors and stone•) [52·69). A concomitant increase In the application of DNA profilins In lnvesti· gallons of a wider range of offences, Including theft, homicide, clandestine laboratories, armed robbery, assaults, sex offences and volume crlme, accompanled the Increase In types of exhibits. The ready availability of DNA from touched objects has also assisted In the

Page 2 of 17

success or many national o(fender DNA databases [70-76} as many focused on Including profiles (rom per­petroto<J of volume crimes (such as burglary, vehicle crimes, street robbery and drug cases). The traditional forensically relevant biological substances, such as blood and semen, are not commonly encountered at these sorts of crime scenes but touched objects provide • wide scope for revealing the offender's DNA profile, and the frequency of recidivism in these crimes Increases the probability of multiple hits across databases.

In the early year� of trace DNA profiling there were several sceptics within the forensic community about the possibility of obtaining DNA profiles from touched objects. However, after conducting their own research they revised their views on trace DNA. In addition to the sceptics, there were forensic labar•tory managers who disliked the potential difficulties trace DNA brought, as they foresaw • significant Increase In sample •ubmlsslons which they did not have the necessary resources to pro­cess. However, many later wed the favourable prospect of trace DNA to argue for Increased staff and budgets and Improved laboratory facilities. The later application of methodologies designed to Increase the likelihood of obtaining useful profiles, specifically from very minute sa"'ples such as the low copy number (LCN) methodol• OfiY with extro cycles or low· template DNA (LTDNA) · methods, have further Increased the opportunity to gen­erate profiles Cram trace crime scene sample.s (77-81). However, these applications can bring their own chal· Jenges (82], which have reignited the debate over the use of trace DNA In the forensic field [83·87}.

What is currently commonly referred to as 'tr.ce DNA' or 'touch DNA' haS previously been referred to as low copy [n,sa}, or low template [82,89]. In our vlew, the application of a single term, such as trace DNA or LTDNA, can be a misleading simplification of • series of complex processes. Trace or touch DNA may be the appropriate term when referring to the collection of minute biological samples at the crime scene or the pro­cess of collecting and extracting the tiny amounts of material within the sample In the forensic laboratory. Low template Is used as a descriptor for the ampliflca· tion phase, where the use of low amounts of material is likely to generate stochastic effeets. Whl!e the term LCN also relates to low template, It tends to be used to describe the process of Increased cycle number rather than the amount presen� The profile could equally be referred to as 'low level' In the Interpretation phase, reflecting that the peak heights are below a validated threshold level. For consistency, within this review we will use the term 'trace DNA' to refer to any sample which may fall below the recommended thresholds at any stage of the process • detection, collection, extrac· tion, amplification and Interpretation.

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Trace DNA typically refers to either the very limited and/or Invisible biological samples and/or amounts of DNA less than 100 pg (88]. However, some laboratories use a 200 pg limit u the threshold limit [82,90]. Recently, there has been some discussion about ellml· natlng template. thresholds entirely from the definition, u they represent an artificial cut .. off for a phenomenon which ls continuous. Instead, 1 risk assessment based on

· peak heights or the resultant DNA profile can be used to determine whether or not an appropriate amount or DNA was present and whether or not stochastic factors affected the genotype result [91]. It should be recog­nized that an apparent trace DNA sample at a particular processlna phase does not necessarily mean that It, or the prontes generated from It, will continue to be con­sidered a trace DNA sample in subsequent phases. It should also be understood that, as methods change, any defined thre5hold amount for trace DNA will also prob­ably change. We encourage any biologists working with trace DNA amounts to consider all aspects or the pro­cess, rather than simply foQisslng on the Interpretation phase. Working effectively with trace DNA necessitates an understanding of factors relating to Its collection, extractlon, amplification and Interpretation, as well as Issues relating to contamination and tronsfer.

Trace sample coiiKtlon Taf9etlng The first step In collecting trace somples Is to ldentlfy which areas to target. By and large, trace samples on surfoces are not readily Jdentlllable. Whllst Unger print­Ing agents are used to ldentlfy touched areas on some exhibits, many exhibits are swabbed or tape lifted based on assumptions about where the DNA-containing mate­rial Is located. The use of non-Invasive detection sys­tems would be Ideal. One 5t1Ch system Is the application of li&ht sources, such as the Pollllcht [92·97), but the use of these Is not as widespread as it could be. This mlly be due to a lack of awareness or their usefulness, or their perceived Impracticality, or their non-Ideal per­formonce ·for specific tosks or that further Investigative and validation work is required to define their scope and limitations. Touched surfaces thot have been revealed using fingerprinting methodolosies are usually those surfaces on which fingerprints are sought as the priority, rather than surfaces where DNA will be sampled. Although many fingerprinting methods do not adversely affect the quality of retrieved DNA, some methodologies may do so [52,66,98-104) and others may reduce the quantity of retrieved DNA [66,69,105]. When considerlnl the downstream use of the finger­print, more emphasis should be given to the Impact of the fingerprinting methodology used on subsequent DNA retrieval and quollty.

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Improvements In the methodologies for Identifying the biological source of trace somples (not just fingerprints) on exhibit surfaces, and their application In the course or forensic Investigations, should help to improve sam­ple collection. Swabbin1 an assumed trace sample area that Is smaller than the actual deposition areo will mean that some or the sample goes uncollected. Swabbing an area greater than the actu:d area of deposit may mean that somple Is spread over a wider area and that less is collected, Both approaches also have the potential to &lve an Inaccurate view of where the actual sample was located. lt Is. therefore. not only necessary to be aware or the precise location of the material being targeted but also to collect from the area appropriately.

Collecting methodologies Most trace famples are collected uslns swabs. Swabbing an area requires 11 moistened swab to traverse the whole target 11rea multiple times with some pressure and rota· tlon of the swab so that the full surface area of the swab can contribute to the collection. However, a moist cot• ton swab does not pick up nil of the available biological material Crom the surface and, in many instances, it may pick up less than half the ovailoble sample [106,107). Swabbing an area with multiple swabs, and the co­extraction of these swabs, has been advocated In order to enhance overall retrieval or DNA [65,105,108,109]. It

. Is now common practice to perform a double swabbing technique. Some moisten the first swab but leave the second swab dry. Keeping the second •wob dry, If the first one has already absorbed all the moisture it con­tributed to the sample, may not collect as much of the target as If It too was moistened prior to swabbing. In this case Il ls Important to ensure that all Its moisture Is recaptured.

Althoush water Is mainly used as the moistening agent [57,107], some laboratories use o.ou, sodium dodecyl sulphate [110) or lsoproponol (Min!Popules, PurltanMedical, Maine, USA) [111). Limited research hos been dedicated towards identifying an optimal solu­tion for the retrl� of DNA from touched objects. Il ls possible that an empirical study of al"nts. or a combina­tion or agents, with both dissolving and abrasive proper­ties will reveal lmprovements. Some surfaces are more difficult to collect samples from than others [57) and the use of different moistening aaents for different sur­faces may facU!tate collection.

Various types of cotton swabs are used but other swab types such as foam are also In use [57,111,112]. The type used for trace DNA collection can be a matter of convenience (already used for the collection of other sample types) or price. Few practitioners have underta­ken studies to check If the swab type used Is better or worse than the alternatives for the purpose of collecting

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touch/trace samples. The identification of the optimal collection methods and SWllb types for porticular sam­ples on particular substrates would be beneficial. It Is also important that the swabs be DNA-free (and not just sterJie), In order to avoid the problems seen In the recent 'Phantom of Heilbronn' case discussed and referred to below.

Once the DNA-conllllnlng material has been collected, most methodologies require the DNA to be extracted from the collection device. In the cue of a cotton swab, It has been shown that some commonly used DNA extraction methodologies are not particularly efOclent in retrieving all the DNA collected from the swab [105). It may be easier to retrieve DNA from some swab types than others and particular DNA extraction methods and protocols may, In tum, be better than others. A compre· henslve comparison of extraction methodologies/proto· cals from various collection devices used specifically to collect and retrieve touch/trace samples, will assist Investigators In developing and applying the most suc­cessful protocols.

If a swab wed to collect biological material Is allowed to dry prior to extraction less DNA Is retrieved than If the still moist swab was processed Immediately (105), Freezing the collection swab rather than drylng It prior to extraction results In DNA recovery rates approaching that of a moist swab (ll3). In some laboratories It Is now common practice to freeze collection swabs Imme­diately after collection.

Eorly on. It became apparent that swabs of trace sam· pies found on clothing did not provide hlsh-quallty results as could be expected. The swabs frequently con· tained Inhibitory factors and/or provided profiles that were difficult to lnterpre� Tape Is now wed resularly to retrieve DNA contalnlns material from worn clothing (57,U2,114). By pressing a strip of tape multiple times over the target area, the most recently deposited mate· rial, with fewer inhibitory factors. are collected and accumulatively they provide better promes [115,116]. Some laboratories are wing tape or sticky lllbs not only to collect biological material from clothing, but also from other touched surfaces. However, taping of luger surfaces can be tedious and the multiple strips of tape that lire required can pose downstream processing diffi­culties. Franco and Goetz [US], Jiang (117) and Berschlck [118) have all demonstnted that the use of fil· tered tips and vacuums could be weful 'alternatives for collecting biological material, particularly from large sur­face areas.

The above collection methods do not distinguish between the contributing sources of DNA·contalnlns material. The desired target DNA is often a trace com­ponent of a large amount of DNA-containing material that emanates from multiple sourceS; The we of laser

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microdissection techniques allows sufficient numbers of relevant target cells to be Isolated from the other over· whelming cell types. Microscopically, different cell types con be distinguished based on morphological character­Istics, various chemical stalnlns or fluorescence labelling techniques. Using this technoloBY a clear DNA profile derived from the minor cell type alone can be generated that otherwise would have either been swamped by the maJor component and not been detectable In the profile, or have been part ofa complex and more difficult pro­file to interpret [119·128]. Anslinger et aL [1251 and Vandewoestyne et a/. [128) have demonstrated that, even when the cell type of two contributors In • mixture Is the same, the cells derived from a male contributor and a female contributor can be distinguished from each other UJing Ouorescent probes and separated accordingly using the laser microdissection methodol­ogy. Althoush laser microdissection has been shown to be exceptionally useful for separating contributors, the preparation of the sample may act as a limitation to Its widespread forensic use, as coated glass slides are required. A sample must be transferred from the collec­tion device to the slide, which may result In the loss of cells. lt would be preferable to we laser microdissection methodology directly on the Initial collection device. Alternatively, the development and application of appro­priately sticky flexible slides or lllpes for direct collection could Increase the application of laser microdissection. Furthermore, the Identification of relevant cell types Is currently often done manually and Is time consuming. Further developments of automated cell type recognition

· software would be welcome. Another approach to separating contributors In sam­

ple mixtures Is the application of flow cytometry/cell sorting methodologies that are regularly used In some non-forensic applications [129,130). Single cell sorting has been routine In many fields for years and allows the specific separation of heterogeneous mixtures of cell types [131). Newer cell sortins technologies, such as the Becton-Dicklnson NJ, USA) FACSAria II!, allow the simultaneous separation of up to four distinct popula­tions of cells, based either on the morpholoBY of the cell or the we of specific antibodies against each cell type. Single or multiple cells can be sorted directly Into PCR tubes or onto slass slides for low volume PCR applica· tlons. Although the cell sorting methods are faster and more easily automated than laser microdissection. the often degraded nature of forensic samples may create difficulties far this method which requires that the cells be laraely intact and within a fluid matrix [132). How­ever, flow cylometry has previously been successfully

�

applied to separate sperm cells from vaginal wash fluid followlns Intercourse [132-134). Provided. technical difti. cultles can be overcome, flow cytometry and cell sorting

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may provide a successful method for the separation of complex mixtures of sm.>ll numbers of cells.

Whilst swabbing and llping a touched area for retrieval of DNA seems simple and stralghtfoi'Wllrd, training exer· clses with would-be collectors have demonstrated how easy It Is to get wrong. Inadequate training. combined with the absence of competency testing and ongoing monitor· lng of an Individual's techniques, could drastically limit the success rates. There l.s a clear need for Improved Initial and ongoing training. profichmcy testing. success-rate data collection and bench marking [13S,I36].

Trace DNA extraction For many years forensic practitioners have reUed on Chelex 100 (Bio-Rad, CA, USA) [137] and organic methods (138] to extract DNA from their samples. Commercially available' kits and methodologies, optl•. mlzed for specific types of samples, became prominent during the 1990s [139,140). The last few years have seen developments which utlllu sillca·coated magnetic beads to capture DNA from the rest of the lysed cell [such as Promesa's DNA· IQ (WI, USA) and lnvltrosen's Chorseswitch (CA, USA)) and optimization of these to suit robotic systems [141,142].

Several DNA extraction methods utilized by forensic scientists do not recover all of the collected DNA. with losses of up to 75% occurring from Chelex and orsanlc extraction methods [105,142,143). Some of the loss Is Influenced by the substrate on which the sample is pre­sented but the majority Is due to the methodology. The bead extraction systems tend to have blndlns thresholds (well above trace amounts) over which the remaining DNA Is discarded. The majority of samples submitted for profiling contain relatively large amounts of DNA well above the 0.1•0.5 ns minimum required by mast common STR profiling systems. Below this amount standard methodolosies tend to provide mainly partial profiles (see below). Accordinsly, It Is not relevant In many cases that there Is some loss of DNA during the o:tractlon process. Few studies fuave, however, focussed on optimizing extraction techniques specifically for trace DNA samples.

Most extraction methods result In DNA In a relatively large volume. There may be some jurisdictions that require the retention of a speciRc portion of the col· lected sample for repeat analysis. However, when this is not the case, and when dealing with a trace sample, the elution of the DNA in a relatively larse volume could be limltlllio Whilst there may be sufficient DNA In total to acquire a sood profile, the concentration may be so low from trace samples that when only a proportion of the available volume is utilized In the amplification, less than optimal profiles are senerated. Concentration and clean-up devices, such as Mlcrocon (MIIIIpore, MA,

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USA), MlnEiute (Qiagen, CA, USA) or NucleoSpin (Ciontech, CA, USA) DNA clean-up columns, are used to help concentrate and/or clean-up samples prior to amplification [144.145). However, some of the benefit of their we Is negated by the loss of some DNA that these methods entail [lOS). This loss could potentially be minimized by the addition of Poly A RNA or salmon sperm DNA to the concentration device [144].

As most extraction methods have a relatively low effi· dency rate, It would be desirable to optimize methodol­ogies specifically for trace samples so that one has the opportunity to: (a) extract most of, If not all, the avail· able DNA; (b) remove all ampllflcatlon inhibiting ele­ments without the loss of DNA; (c) utilize all of the extracted DNA for amplification; and (d) add the ampll· fication reasents to the vessel containing the DNA rather than having to transfer the DNA to a separate vessel contalnlns the amplification reagents (thus avoid· lng a further loss that could be encountered in the transfer step • for example, retention of DNA on vessel walls and/or In pipette tips). The development of direct PCR from 1.2·2 mm FTA card punches containing saJ. Iva or blood, without the need for pre-washing or the removal of heme. Is a step toward the latter [146,147], However. at present, the direct PCR methods are nat yet able to amplify .W.bs or tape·llfts which would be required with trace DNA.

T"'ce DNA quantltation Although It may not always seem necessary to quanti· tate trace samples, given the expected low concentration of DNA, It can be helpful to have an Indication of the approximate quantity present when Interpreting the resullllnt STR profile. In addition, It Is not always cor· rect to assume that touched objects contain only low amounts of DNA. Depending on the nature, frequency and duration of the contact, tens or hundreds of nano­grams may be present [51,65,66.148). As such, quantifi· cation of every sample can ensure the maximum efficiency and prevent repeat analyses of ovor·ampiiRed samples (82). However, a negative quantitatlon result should not prevent the downstream processing of trace samples. Partial or even complete 9 locus STR profiles have been obtained from samples giving a negative result with the most commonly used forensic quantlfica· lion kl� the Quantlfller Human DNA Quantification ldt (Applied Blosystems, Foster City, CA, USA) [149]. Most probably, stochastic sampling and amplification effects are operating on the real·tlme quantltlltlon method with extremely low template amounts and, as such, any quantltatlon result of very low amounts of template must be taken as an indication of the concentration. rather than as an absolute measurement as with hisher input amounts.

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It is a common practice in some laboratories to use only a portion of the extracted DNA for amplification due to; (a) internal methods, procedures and policies; (b) a lack of wlllingnen to concentrate the somple for laboratorr efOclency reasons; and/or (c) a desire to retain a certain por�on of the sample for possible future further typing. A deeper consideration of workflow pro­cesses and priorities may yield an altern:1Uve protocol that will allow the use ofa greater portion of the avail· able DNA for amplification thus Increasing the chance of generating fuller and easier to interpret profiles.

Trace DNA amplification and detection General Jn recent years, the most interulve research and discus· slon In the field of troce DNA has been In the areas of amplification and Interpretation of low level template amounts. Perhaps this focus reflects the perceived ease of optimising this aspoct, In comparison to the others discussed above, or that amplification ls the main area where the forensic molecular biologists have control of the quality of the sample and analysis: the other areas being more the domain of the crlmlnoloslstlcrirne scone officers, or indeed simple chance, Nonetheless, contin­ued rese�rch ha< led to some slgnlfi<ant Improvements In· the way forensic molecular biologists amplify and interpret trace DNA profiles but It has also raised many more questions and resulted In research areas opening up, particularly in the 5tatistlcal Interpretation of profiles.

Improving ampllfl<atlon The most commonly used method of enhancing the success of trace DNA amplification Is to Increase the number of cycles. This procedure, devoloped at the For· enslc Sdence Service (FSS) In the UK (and adopted by other laboratories), Is often referred to as an LCN anllly· sis [77]. Over 21,000 samples have been analysed with this technique (In the UK alone) at the time of writing, representing a slsnificant portion of the overall coseload [150). For this LCN technique the number of cycles used d111;ins the PCR of the STR loci Is Increased to 34, potentlolly allowing an increase In product of over 3 bil­lion, compared to the standard 28 cycle reaction. Increased cycle number Is commonly used In research and ancient DNA settings, where up to 60 cycles may be used to maximize the success of the amplification [151).

Many papers have described the efficacy of Increasing cycle numbers [77,78,152). In the original desorlption of LCN, complete profiles from only 5·10 cells (30-60 pg) and substantial Increases In peak helshts were reported [77). Kloosterman and Kel'lbergen [152) used a sllshdy different strategy in which additional Taq polymerase

was added after 28 cycles, and thermal cycling contin· ued for a further six cycles. Single cells were reportedly analysed successfully, with as much as 6 months differ· ence b�tween the first 28 and second Jlx cycles. Although most of the older STR profiling kits recom­mend only 28 cycles, new kits are taking advantase of the improved success resulting from the increosed num· ber of cycles, such as the Applied Blosystems (CA. USA) Minililer (29 cycles), Yfiler (30), and NGM (29) and also Promega's ESX and ESI kits (30 cycles). This develop· ment will allow those laboratories that are reluctant or unable to perform the LCN methodology to benefit from the advantages of an Increased cycle number. However, it also brings with It a need to increase the stringency of contamination prevention, as It is likely that more sporadic contamination will be detected due to the increased sensitivity.

Primer design for the amplification of the STR loci in the commercial multiplexes can be, and has been, Improved, While the majority of kits still use the orl· glnal primers, Butler el a/. [28) redeslsned the arnpll· cons to produce 'mlni-STRs', producing primers which had significantly higher success rates with desraded DNA due to the smaller amplicons. This concept of generatins smaller ampllcons was used to produce the MiniFller STR kit (Applied Blosystems), which has a considerably higher success nte with degraded or Inhibited DNA than the standard AB kits, but also ha< a lower template Input requirement • 0.125 ng com• pared to 0.5 ng [35). This decreased threshold may reflect the increased priming and amplification effi. clency of the new primers, but also that the optlmiZll· lion of the multiplex can play a large part In the sensitivity of the ampllfiCitlon.

However, there Is still more that could be done to Improve the amplification success of forensically rele· van! STR loci. Previous research has shown that the Incorporation of synthetic nucleotldes with stronger binding capabilities than standard nucleotides Into PCR prlmel'l can substantially Improve the amplification suc­cess of low template levels. Locked nucleic acids, an RNA analosue, have a bindlns strensth far superior to DNA. glvins increased sensitivity and spoclflclty [153,154): Ballantyne el a/, {155,156) have shown that lncorporatlns a small number of locked nucleic acid (LNA) bases Into the mlni·STR primers can Increase amplification success or trace DNA samples by over 300%, sugsestlns that the incorporation of LNA Into prime� should be examined as a tool to Increase ampli· lication of forensically relevant samples In new commer· clal multiplexes.

In addition to alterins the cycllns conditions or prl· mer sequences, the master-mix components, and the molecular mechanisms by which they can interact, can

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be altered. Reducing the volume of the l'CR can have the most substantial effect Galnesel aL {157] reported four-fold Increases In sensitivity when the volume of reaction wus reduced to 5 pL, while wing 1 pL on gloss slides allowed the ampllltcotlon of IS STRs from only 32 pg of DNA ]158]. However, simply reducing the volume of an ampliftcatlon may not increose efficiency or accuracy, It may simply Increase the relative concen .. !ration of the template relative to the reagents. Although this wlll not remove all stochastic effects of low tem­plate amounts, it can reduce their impact on the resut .. tant STR profile.

Altering specific components (such as magnesium chloride, primer or buffer concentrations) within the commercial STR multiplexes Is not possible, due to the way they are prepared. There have been some suJBes­tions that altered buffer formulatJons or primer concen� !rations may improve the amplification success of low level samples [146,147], although these remain untested with the current STR multiplexes. The newer commer­cial multiplexes such as Mlnifiler and NGM do, how­ever, hilve optimized buffer systems to cater for Inhibited samples, which may be a factor in their increased sensitivity. However, altering the type of DNA polymerase has been shown to substantially increase reaction sensitivity and efficiency, giving improved results with low template amount or Inhibited casework samples (159]. In the same way that alternative DNA polymeroses have been examined, it would be desirable to see empirical studies of the effect5 of alternative con­centrations of ether components such as masneslum chloride, dNTPs and primers at trace DNA levels.

Another alternative worth considering is the addition of chemical adjuvant5 to Increase reaction efficiency or sensitivity. Bovine serum albumin (BSA) can prevent Inhibitory substances reducing !he activity of Taq poly­merase by seque5terlng phenolic compounds which may otherwise scavenge the polymerase (160) and Its pre­sence may reveal sufficient amplifiable DNA in samples which otherwise appear to contain only trace amounts. Although BSA will not Increase amplification sensitivity from high-quality, Inhibitor free DNA samples, many forensic samples may contain low levels of Inhibitory substances and, thus, most commercial assays contain 1 low percentage of BSA as a standard componen�

Instead of Increasing the amplification efficiency, the amount of template added to the PCR can be increased to facilitate increased STR profiling success. Whole gen­ome amplification (WGA) can assist by replicating the entire DNA sample, rather than the specific target as with PCR, producing hundreds of nanograms from pica­gram Input amounts. This Increase In DNA sives the analyst the opportunity to add 10 or 100-fold more DNA to the senotyping PCR, substantially Increasing

the probability of obtaining a complete profile. Addi­tionally, it allows multiple, high quantity PCRs to be performed and generates sufficient DNA for archiving purposes. The commercially available methods work optimally on 1-10 ng of DNA, althoush they hove been successfully wed on single or small numbers of cells In non·forenslc areas [161-163], and generate sufficient DNA to analyse hundreds of genes. However, substantial amounts of amplification bias have been observed between homologous alleles and loci with low template amounts with WGA [164,165]. Despite this problem, promising result5 were seen in the we of WGA and specifically multiple dl•placement amplification (MDA), on forensically relevant trace DNA samples [165-167]. STR prolilin; success was Increased significantly. although peak height biases Increased genotyplng dlffi· culty. It was, however, possible to apUmtze the commer­cial MDA methods for specific application with trace DNA by usins molecular crowding [167] and altered denaturation methods [168} to promote balanced ampll· fication. Newer WGA methods are currently emerging to cater for the increased DNA requirements for next­generation sequencing and SNP genotyping, and meth­ods are emerging that eliminate bias and non-template amplification,, allowing genotyplng of 550,000 SNPs from sub-nanogram amounts ]169]. The continued research and development of WGA may lead to a method sufficiently reliable to allow widespread use on trace DNA samples.

Improving dotactlon of amplified product The level of detection and ease of typins can be Increased by manipulating the PCR product post­ampllflcatlon. The most common method Is to purify the PCR amplicons of the STR loci, removing salts, Ions and unused dNTPs and primers from the reaction using filtration (for example, Microcon filter columns), silica gel membranes (for example, Qlagen MlnEiute columns), or enzymatic hydrolysis (for example, ExoSAP-JT) [79,81,170]. Purlflcation to remove nega­Uve ions such as cr prevents inter-molecular competi· lion occurring during the electrokinetic Injection, ensurins that the maximum amount of DNA is intro­duced [171]. Purification by MinEiute columns gave fourfold Increases In peak heights, with only small Increases In the numbers and scale of artefact5 [170].

During the purification process It Is also possible to concentrate the PCR product, to allow even more of It to be Injected. Reducing PCR product volumes from 50-25 pL to 10 J1L, can produce a six to 14-fold increase In peak height [79,170]. If the entire PCR product Is reduced to -1 J1L for analysis peak heights can be increased even further, although the level of artefac!$ slgnlficanUy lncreosed [170]. hi addition, a more porified

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PCR product can be added to the denaturing formamlde for lnjecUon • using 10 pL instead of 1.5 pL of the pro· duct Jives a further Increase of -12-fold over just purifi· cation and concentration )170).

In addition to purifying and concentrating the PCR product, the amount of product Injected Into the capil· lary can be increued either by raising the time or vol· tage, or both, of the electrokinetic Injection. Although this may not be advisable on a non-purified product (due to the higher concentration of competing Ions), increasins the Injection time and voltage to 15 s at 9 kV can cive about nine additional alleles per STR profile for trace DNA somples and Increases peak helchts sixfold )172). However, comparison with profiles cenerated with an Increased cycle number (34 instead of 28) showed that the latter method generates the most complete pro· files with the highest peak heights )172]. However, com­bining purification wlth a 30 s 4 kV injection strategy gave an Increased amplification success with lower levels of stutter and peak imbalance than the standard 34· cycle methodology and can be viewed .. a more nwble approach to Increasing trace DNA profiling success )79]. However, there is no clear consensus on the best lnjec .. tion profile to uSe .. some laboratories have validated Injection strategies of 6 kV for 30 s )173], or 5 kV for 15 s )80] or different conditions dependent on the amount of DNA (I kV for 22 s for 100 PC• 3 kV for 20 s for 25-50 pg, 6 kV for 30 s for <25 pg) [110]. From the range of views regarding the 'best' Injection profile, it appears that the degree of enhancement Increased Injection can give is highly dependent on the STR kit and the Individual capillary electrophoresis (CE) mochine being used and each laboratory should, there· fore, lnvestigote its own best levels.

Newer polymers such as POP-6 and POP·7 (Applied Biosystems) have Increased the slzlns precision available with capillary electrophoresis, but unfortunately seem to

· have decreased the sensitivity of detection (I<NB, data not shown). This has required further optimization of the injection parameters to achieve comparable levels of peak helshts between the polymers, with a chanse In the recommended default Injections from 3 kV for 10 s with POP-4 to 1.2 kV for 23 s with POP-7. However, the use of altered fluorophores can overcome the decreased sensitivity, as they display hlsher levels of fluorescence and lower quenchins over time than the currently used nuorophores • FAM and ROX. Newer dyes, such as Molecular Probes' BODlP'l or Alexa Fluor . Series, hove become commercially available, with the fat· ter being the brightest and most photostable oliconu· cleotide conjusates available, with average fluorescence greatly exceedlns that of even 6-FAM ) 174]. Energy transfer (ET) cassettes, which contain both donor and acceptor dyes separated by a susar·phosphate spacer,

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give substantially higher sensitivities than slnsle dye nuorophores [175,176]. The Incorporation of these more sensitive dyes Into the commercial STR amplification kits moy decrease the amount of template/PCR product by lowerins the limit of detection.

Dlfflculties whh Improving ampllllation and typing or trace DNA Despite all the above options for Improving the amplifi· cation and detect1on success of trace {or, indeed. any forensic sample), many forensic laboratories have been reluctant to validate and Implement them.fnto standard case-work procedures. It is only recently that lnternol validations of trace DNA profillns uslns commercial multiplexes (with and without extended cycles/LCN methodoloBf) have been published In peer-reviewed lit· erature [79,80,173]. However, none of the commercial kits are validated by their manufacturer for 34 cycles or very low template amounts. The lack of validation is partially due to the Innate variability that exists with trace DNA samples and their analysis. Any trace DNA sample, by its very nature, Is below the stochastic threshold and Is, thus, subject to the Inherent variation which comes with operating at such low levels. A major cause or the reluctance in the forensic: community to use methods designed for successful trace DNA analysis may be the increased level of artefacts that result from the Increased sensitivity. Concomitant with the abiUty to amplify minute quantities of material Is the increased likelihood of contamination belns detected and of arte• facts of the amplification process beinc Increased due to stochastic effects. Four features are common across many trace DNA ampllflcaUons:

1. allele drop-out due to p11!ferentlal amplification of one allele at one or more hfterozygaus loci. This Js a near .. constant feature of extremely low template and increases as template levels decrease (77,78,177,178]. Despite Improving technologies rapidly increaslns sensitivity, any amplification of trace DNA amounts must be Interpreted In light of the probable drop-out of alleles 2. decreased heterozuote allele balance within a locus and between loci. The same stochastic sam· plins and amplification effects that cause drop-out also cause extreme peak height Imbalance within and between loci, which can create difficulties evalu· ating zycoslty at particular loci 3. allele drop·ln, due to ampliflcatlon artefacts such as stutter. Artefact rates can substantially Increase with trace DNA amounts (78], leading to difficulties In characterlzlns the number of donors to a STR profile and to the assigning of alleles within a mixture

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4. allele drop-in, caused by 5poradic contamination occurring from either the crime-scene or the lobon­tory. Although the probability of allele drop-ln remains th.e same, recardless oC the template amount, the probability of detection Increase• with lowered 1enulne template levels 177,80,173). Addi· tlonolly, depending on when the contaminating source entered a umple, reanalysis may or may not reproduce the Initial re5ull

As there are currendy no methods to completely elim­Inate artefact product during the amplification of trace DNA, strategies are being developed to account for them 5tati5tlcally. However, this requires an in-depth understanding of the factors that may cause each type of artefact and accurate data regarding the frequency and scale of their occurrence, both of which are still being researched. An excellent example of the type of research required Is that of Benschop rl aL (179], which represents one of the first ht1Je-scale efforts to charac­terize artefacts generated by dilferent trace DNA ampli· ficatlons and typing strategle5 and an Investigation of the most effective method to generate a useful consen­sus profile. The few validation studies that have been publi•hed to date (79,80,173) represent valuable resources for estimatins the occurrence of the trace DNA artefacts, but It Is unfortunate that few of the LCN validation studies •pecilically compare low tem· plate ( < 100 pg) amplifications with the standard 28 cycle to the extended 34 cycle (with, or withou� product purification), with several notable exceptions 179,179). The diiTerence In methodologies across the various LCN and low template amplification and analytical proce­dures mak .. It difficult to compare their relative effec­tiveness or to build large Inter-laboratory databases detailing the frequency of artefact production at low template Ievel5.

Low level DNA Interpretation The Interpretation of trace DNA analyses 15 currently the most controversial aspect of Its use within the med­Ico-legal systems. In placing 'a profile obtained from trace amounts of biological material found at the crime­scene Into context, the analyst should take Into account the potential for transfer of the material, the pos•lble cellular origin of the DNA profile In question, the sto­chastic nature of the collection and analytical proce­dure5 and the possibility of artefacts confounding the true resuiL In most laboratories the analytical methods and statistical calculations employed for standard DNA typing are used for trace DNA - a process which Is sta­tistically and KientlficaUy Incorrect and which can bias calculations heavily asainst the defendant. In 2007, a hlgh-prolile case In Northern Ireland [ISO) raised

questions regarding the appropriate Interpretation meth­ods of low template DNA and the subsequent UK For­ensic Regulator's report recommended the development and validation of methods specific to trace DNA amounts [181].

Interpretation methods spedflc for trace DNA Guidelines ind models for the Interpretation of trace level DNA profiles have existed for over a decade [77] but there has been no widespread Implementation across laboratories performing low template analysis. Instead, the same profile Interpretation and statistical methods are used as for high quantity samples. How­ever, it Is Imperative that any analysis ofa trace profile considers the four most common features of trace amplification: allele drop-out, decreased heterozygote balance, allele drop·ln (stutter) and contamination, as described above. The effects of the5e can be minimized by the Implementation of Jlrict Interpretation guidelines and speclaliZl!d statistical models and can give the user reliable and robust results from trace DNA.

The most common method of ensuring the reliability of trace DNA profiles involves the use of detection thresholds. In order to eliminate background noise, a -so RFU threshold is commonly used as a calling threshold, termed the limit of detection (LOD). To ensure allelic drop-out doe5 not result in false homozy­gote calls, a sepante threshold, referred to as the low� template DNA threshold, T 1182], the MIT (match interpretation threshold) (183], or the limit of quantlta· tlon (LOQ) (184) 1s set at 150-200 RFU. Only peaks above this threshold may be called as homozygous. The purpose behind this decision Is to ensure that the prob­ability of allele drop-out (Pr(D)) Is minimized and so the probability of defining either a mixture as a single­

, source, or 11. heterozygote as a hom.ozysote, Is low. How· ever, even with a strict threshold, drop-out may still occur. Therefore, It has been recommended tha� Instead of thresholds, a more continuous measure should be used which Is modelled on the risk of �ropout based on peak heights. In this manner, the evidence intensity can be included In the exclusion calcula�on and Informative allele5 below an arbitrary threshold value do not bave to be automatically Ignored [91].

The use of repllcate reactions and the generation of consensus profiles (termed the 'biological model1 have been advocated by many as the best way to ensure that reporting Incorrect senotypes Is minimised 177,78,179,185). When the Random Man Not Excluded (RMNE) lnterpreta�on method Is employed the consen­sus profile is considered necessary Jn order to account for the inherent stochastic variation In low template amplifications [77,78]. However, when allele drop-out Is possible the use of the 2p rule may be non-conservative

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(1861, and wastes information regarding p<ak height and dropout in the calculatlon [1871. In addidon, there is no consensus on either the minimum number of replicates needed or how frequently one needs to observe an allele within the number of replicates conducted for it to be considered a true allele (901: However, recent work has provided considerable empirical evidence suggesting that four replicates, with reported alleles detected at least twice, is the most accurate [1791. In particular, the prac· lice of omitting loci which may have dropped out from the RMNE or probability of exclusion (PE) calculation method can be biased against the suspect, particularly as the probability that drop-out has occurred increases (89,1881. The International Society far Forensic Genetics (ISFG) has therefore recommended that RMNE Is only used to interpret profiles where there Is no probability of drop-aut or Increased stutter, which effectively rules out Its use far trace DNA Interpretation [188,1891. Some authors are advocating a move to a Bayesian based, likelihood ratio (LR) framework, where Informa­tion regarding the probabUity of artefacts obscuring the true prollle can be incorporated Into the strength of evl· dence calculation [77,89,91,187,1901. The statistical model, as proposed by Gill et a/. [77[, and then expanded aver the last decade [89,91,1911, provides the necemry proboblllstlc methods, where the probability of observing the evidence profile can be combined with prior knowledge regarding dropout, the number of potential contributors, the possibility of contamination and many other factors. In addition, it is possible to use Individual replicates within the likelihood rado (LR) fr.a. mework, rather than losing important Information by generating consen5us profiles. A customized expert Interpretation system, LoComotioN, allows the auto· mated evaluation of multiple senotypes and Incorporates all necessary stochastic eiTeets Into the prababUity calcu­lation (1921. Tvedebrink et aL [1931 have besun the pro­cess of generating the empirical data and statistical models necessary to provide estimates of drop-out and II is likely that, In the coming years, Ormer estimates will became available.

Trace DNA mixture Interpretation Mixed trace DNA profiles add yet another level of cam· plexity to the Interpretative pro<e55. Mixed samples may be composed of one or more major contributors with high quantities of DNA and with a minor contributor present only at trace levels. Alternatively, all contributors' DNA within the mixture may be at trace levels. Furthermore, DNA truly derived from a sinsfe source could be treated as a mixture due Ia hlgh stutter peaks being present and, therefore, wrongly Interpreted as coming from multiple Individuals. Given the high probability a( drop·in, drop­out and increased stutter. e.stimatlng the number of

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contributors can be problematic, as can separating the contributors' genotypes at any sfven locus. AmpliOcalian )?las may cause the minor contributor's alleles to drop out entirely at some loci or may cause over·amplifiatlon of somt alleles, creating the appearance of a separate contri· butor. In particular, the Increased stutter seen with trace DNA amplification [77,78,1791 creates formidable pro­blems for mixture interpretation. Althaush there are locus-specillc stutter percentage guidelines far standard template amounts, none exist for trace DNA amounts. ln addition, there Is evidence that bath forward and back­ward stutter Increases with increasing allele length within a locus (20,194-1961. A diiTerence ln stutter percentage of 12" has been reported between alleles 10 and 17 at u commonly used locus (20). From the limited data avail­able. peak heights of backwards stu tier may Increase from 0"-4" at the smallest allele within a locus, to 1216·20" at the largest [1941. This diiTerence may create a blu during interpretadon, with Ianger molecular weight stutters being more likely Ia exceed thresholds and to be incorrectly designated as real. Alternatively, a peak at a stutter loca­tion of a small allele could potentially be perceived as a stutter when actually it represents a true allele ·from another source. Further efforts toward more precisely defining stutter peak expectations based on the laboratory specific methodologies in use, DNA template amount and allele height should assist pra61e Interpretation.

The ISFG recommendations on mixture Interpretation [1891 advocate an LR approach Car low template level mixtures and the incorporation of an assessment of the probability of allele c!rop-in, and drop-out, when cansid­erlns a mixture. In contrast, Budowle el aL (183) prefer the PE calculadan (equivalent to 1-RMNE), over what they view as the complicated nature of the LR approach and the difficulty of conveying the information to the court. However, any perceived difficulty should not automatically exclude the use of the LR approach, parti­cularly when the PE method can introduce a substantial bias under certain conditions [186-1881; It Is clear that more empirical, quantitative data an the effect of law template amounts within mixtures should be generated. To Ibis end, Bright el aL [1971 described the use of the heterozygote balance and average peak helehts at each locus to calculate the mixture ratio and distinguish among the contributors' genotypes. Their work has shown that the peak heisht at any one locus (for the Jdentifiler kit) Is consistent with the average mixture ratio expected, and that observed across the whole pro­file, to within a factor of 2 provided that the average peak height is above 267 RFU [1971. Below this helsht, the stochasdc nature of the low template ampiiOcation renders any peak height thresbald inaccurate. Therefore, cau�on has been Utged Cor mixture interpretation when only trace amounts DNA of one or mare of the

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contributors Is presen� Expert soflware systems such as TrueAIIele ore now using quantitative probabJIJty mod­eiiJng, based on peak heights and Ukelihood functions, to estimate the probability of different contributor's gen­otypes within complex mixtures, wfth considerable sue· Ces5 [198·200].

The Increased discussion on the appropriate Interpreta­tion for low level DNA profiles has helped to move the field forward towards a more rigorous strategy for Inter­preting the evidence and presenting appropriate statbtl­col measures to the courts. While this Is undoubtedly a step In the right direction, there remains much work to be done. The Incorporation Into the LR framework of more criminalistic aspects of trace DNA, such as the pos­sibility of transfer, background contamination and deposition rates, will produce more conservative estl· mates and help to eliminate some or the critics' concerns over the validity of tr.>ce DNA as a prosecutorial tool.

Contamination Issues Contamination is a crucial Issue In the analysis and Interpretation of trace DNA. Contaminant DNA may appear as either the major or minor sample within a mixture or, alternatively, may overwhelm the target DNA completely. From a theoretical perspective, any DNA deposit that Is not Immediately relevant to the crime being Investigated can be viewed as contamlna­tlon. ln this light, gross or sporadic contamination may appear at any poln� (I) before the crime has been com­mitted; (2) In the Interval between the crime and secur­ing the crime scene; (3) during the lnvestlsation of the scene; and/or (4) within the laboratory.

The fi"'t pol�t can be viewed as the level of back· ground DNA present under normal circumstances [88,201,202]. The second may occur as a result of Inno­cent Interactions by unrelated Jndlviduols. Although these two contamination points, termed adventitious transfer, connot be strlcdy controUed. there are methods to account (or and to minimize the Impact of such con· lllmlnotion. These approaches/methods Include:

1. perform more studies similar to those of Raymond el aL [67), Cook and Dixon [202], Dowtman el aL [203) and Toothmon et .al. !201] In order to learn more about the occurrence and penlstence of DNA on particular surfaces In different environmental conditions 2. Improve sample collection targetinJ (see above) 3. develop sample collection methodologies and stra· tegies to decrease unwanted underlying DNA 4. apply ceU separation techniques to mixed samples prior to DNA extraction (see above) 5. where possible obtain I reference sample ror DNA profiling from the normal user(s) of an exhibit of

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Interest and/or the person{s) who may have come Into contact with It after the offence to assbt profile interpretation 6. where possible obtain a profile of the background DNA from an area immediately adjacent to the tar­get are• to assist profile Interpretation.

The third point of possible contamination at the crime scene can be controUed by the Implementation or oper­otlng procedures designed to minimize the potential ror contamination. Substanthll amounts of contamination moy occur rrom Investigators moving, talking or cough· Jng over exhibits, with the degree of conlllmlnation pro­portional to the distance from the exhibit [204]. At a minimum, standard operating procedures to limit con­tamination at a scene should Jnclude:

1. restricting access to a potential crime related exhi­bit or scene 2. the use of gloves and mouth masks by all those needing to touch and/or closely look at the possible crime related echibit 3. regular chonglng of gloves by those touching exhibits 4. ovoidlng, as much as possible, touching areas on an echiblt that may be sampled for DNA 5. the avalloblllty of DNA profiles of all those lndivi· duals knowingly being In contact with an exhibit to check ror potential contamination. Such data would assist In the Interpretation or profil�.

An oddltional point to be aware ofis the use of collec­tion/detection devices on multiple exhibits and at multiple scenes. Fingerprint brushes are oble to. transfer amounts of DNA between exhibits that could senerote profiles and may retain biological evidence ror a considerable period of time [205,206]. Any device, therefore, which Is In physical contact with a biological stain should be thoroughly decontaminated between use on exhibits or, preferably, DNA-free disposable equipment should be applied.

The fourth point, within laboratory contamination, may occur from individuals within the laboratory, Inter­exhibit transfer or manufacturer-based consumable con· lamination. Although these events are generaUy the most strictly controUed ror, high proflle Instances of gross contamination have been reported [207-209) and research has shown that, despite strict operating and cleaning procedures being in place, DNA moy be trans­ferred between exhibits and equipment [210). Methods to minimize the possibility of contamination In the laboratory may include the:

1. use of DNA·free plastlcwore and consumables. · The recent 'phantom of Hellbronn' Incident In

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Germany and Austria, in which •sterile' swab con· lamination during Its manufacture CliUSed pollee to link 40 crime scenes Incorrectly [208). To prevent this occurring, SWGDAM (Scientific Working Group on DNA Analysis. Methods), ENFSI (European Net· work of Forensic Science Institutes) ond BSAG (Biol­ogy Specialist Advisory Group) have now issued a position statement with specific recommendations for monuf11.cturers and laboratories [211], to ensure that all mat.rlals used ore DNA-free, rather than simply 'sterile'. 2. frequent and thorough cleaning of work areas within labon�torles 3. periodic assessment of the level and location of DNA within the work place and on relevant tools to be performed and results considered from a risk management perspective. Where possible, recom· mendatlons derived from results relating to opportu· nltles for Improvement should be Implemented [210) 4. sepantion of the work areas for item examination, DNA extraction and DNA ampllfit11tion and typing 5. different exhibits being examined at different loa· lions and/or times and the recording of where, when and by whom an exhibit wos examined. This can assist in investigations of unexpected contamination events that may he detected at a later stase In analysis. The analysis of reference samples after the conclwion of crime scene samples can also aid in minimizing both Inter-case contamination and the possibility of biased interpretation of the crime scene samples 6. negative controls being used at every stase of the analysis, Including Item examination and sampling.

Every trace DNA pmBie should be Interpreted In the con· text of possible contamination. A mixed sample may con· taln backsmund DNA, crime-related DNA and post•alme contamination, and It may be difficult to Identify the rele­vant proOie. In particular, the recent Increase In cold·case investigations using DNA proOIIns lncreases the risk of detecting such samples, which may not have been coUected, stored or examined with trace DNA detection sensitivities In mind. Thus, continued research, monitoring and a reduc, tion of the Incidence of aU types of contamination Is impor· tan! for the further development of trace DNA anal)' Is·

Transfer Issues Throughout the years of !lace DNA use, the major focus has been on Improving techniques In order to obtain highly discriminating genetic profiles from minute amounts to help Identify the person from whom the DNA at a crime scene is derived. However, much less effort has been expended on understandins the activities that explain how the DNA sot there.

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Althoush the first report·on trace DNA identified the occurrence of secondary transfer [51), debate reaardlng the existence of .secondary transfer followed for several years [212). However, empirical research has since demonstrated substantial levels of transfer under a wrl­ety of situations, conftrmlng that secondary, and possibly further tnansfer, may well be occurring in 1 number of casework situations [210,213·215].

Greater effort needs to he made by pollee/crime Inves­tigators to Investigate how a DNA sample arrived ot the location where It was found, as well as by scientists to better understand the Impact of activities on the relative amounts of DNA from particular sources at a crime .scene. In some instances. it Is possible to derive the chain of events that led to a trace DNA sample being present at a crime scene .. : for example, prior visfts to the scene or the known use of an Item. Awareneu of these variables, and their impact on transfer events, will osslst In weighting the likelihood of proposed alternative scenarios. Some pre1lmlnary contributions to our knowl­edge of transfer In relation to residential burglary and street robbery have recently been made [67). Others have also started collecting this type of data with prell· mlnary Investigations focusing on the type of biologlal material being deposited, the condition of the biological material, the type of substrate on which the biological material is pres<!nt and with which It comes Into contact and the manner of contact [216·218). It Is clear tho! more dati on these and other wriables are necessary to Improve the accuracy of the likelihood assessment of Dlternatlve scenarios.

Concluding remarks Surveys of forensic practitioners resardlng aspects of training, proficiency testing, procedures, methods, poll· cles, contamination prevention, data collection and communication relating to forensic trace DNA have hishllghted the need for improvements In these areos [135,136). A number of recent reports have recom· mended the need for substantially sreater Investment into forensic services related research and development [82,219). This review ldentllies how far we have come In the use of trace DNA in order to assist £oren sic tnvestisations In recent years, but it also identifies sev­eral opportunities for Improvement In most facets of trace DNA work. A deeper consideration of workOow processes and priorities may yield alternative protocols that allow the use of a greater portion of the available DNA, with sreater sensitivity, thus lncreaslns the chance of generating fuller and easier to 'interpre� pro· Dies. Further research will Improve the utilisation and benefits of collecting and typing trace DNA In forensic Investigations.

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Abbrtviallons SSA: bovine StrUm ilb!Jm·n, lCN low COJTf number, LR: likel:hood r.nio; LT DNA. low template DNA; POt polymet"ase chain reaction, PE. plombi�ty of e.-elusion. RMNE. random man not excluded; St.'P. single nucleotide polymorphism; STR: short randem reptau; WGA. whale genome ampl'aficatron.

Adcnowtedgtmtnts We wauld Qke to acknowledge all collaboratou on our Vilficus studies regMdlng tract DNA. Author details 1Fmensk SeNices Oep.vunenr. \'iaorla Po1ce. 31 Forensic Olive, Macleod 308S, VICiorb. Australia. 20epanment cl Forerulc Mo.'eculat B.'o�ogy, Eri¥Jmus Univtr$1ty Medlea1 Center, 3000 CA Rone1�m, The Nethetlands JDepanmem ol Genetla. la Trobe University, Melbourne. 'ktona 3086, Australia.

Authors' contttbtnloru RAH...O and KNB conulbuted equally to this wcrlc. A\ the iUthors wrote and tpproved the final manusaipt Competing Interests The authors declare that they h.Jve no competing lnlflfl!S.

Rtctlved: 20 July 2010 Accepted: 1 December 2010 Published: 1 Deamber 2010

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19 Spr!!:h!r 0, Mclaten RS, Rilbbath 0, J'J!flke 8, Ensenbetgt"J MG. futncr PM. Downey l �ombs E. S1ora OR: PowefPiu ESX 11\d ESI S)'SCems: A suite or new m systems designed 1a mttt tht changing neecb olthe DNA· typing community. Fattnst" Sd kit GeMt S4Jppl Sttits 2009, 2'2--4.

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21 Prameg1 Corpor�!lon. [hnpl/www.promega.mm/ipp(kallanslhmnldt1 21 Applltd B!osystems. Forensic Newi. NGM IGr;: 2009 (hnp//ma�keting

•ppltedblasyscems comlirnag�,oduct...,lo05lles!N:ifNdownlolcls/ NmGell..SS_vlpdll

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29. Schumm IN, Wlngfove RS. Oo\lgl;n EK Robust SJR multlplextS fw chalenglng cuewofk sampfes. lnr Coogt St:r 1001. 1261 547-549.

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•1 W�egand P, Bajai'ICW$IU T, Brlnkmmn fl: ONA �g af dtbrls from " CJste•a V, Mang"n P· DNA profiling succa' and relevance ot 1739 l'ingem.Jits. /rlr J Lt9 Mtd 199l 1068Hil contlrt sulns (rom GlstWOJk. Fotmsk Sd tnt Gtntr St.Jppl Stt 2008,

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219 Nat anal �rch COUII(il olthe Nalion.al Acac!lmlt1 su�g forensic sdence In IM Un�td StJtu: 1 p.ttll f�rd. Wa1hlngton 0C. The NitQI\.!1 AUdemltS Press. 2009 l dol:l0.1186/204H223-1· 14

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1 Sample Collection, Storage,

and Characterization

Collection/Storage Characteriutlon

DNA typing, since It was introduced In the mid-19805, has revolutionized forensic sci­ence and the ability of law enforcement to match perpetrators with crime scenes. Each year, thousands of cases around the world are closed with guilty suspects punished and inno­cent ones freed because of the power of a silent biological witness at the crime scene. This book explores the science behind DNA typing and the biology, technology, and genetics that make DNA typing the most useful investigative tool to law enforcement since the devel­opment of fingerprinting over 100 years ago. As noted in the Introduction, this volume is intended primarily for DNA analysts or advanced students with a more in-depth look into subjects than its companion volume Fundamentals of Forensic DNA Typing.

STEPS IN DNA TESTING PROCESS

A summary of the steps involved in processing forensic DNA samples is illustrated in Figure 1.1. Following coiJection of biological material (Chapter 1) from a crime scene or paternity investigation, DNA is extracted from its biological source material (Chapter 2) and then measured to evaluate the quantity of DNA recovered (Chapter 3). Specific regions of the DNA are targeted and copied with the polymerase chain reaction, or PCR (Chapter 4). Commercial kits are commonly used to enable simultaneous PCR of 13 to 15 short tandem repeat (SlR) markers (Chapter 5). STR alleles are interpreted relative to PCR amplification artifacts following separation by size using capillary electrophoresis (Chapter 6) and data analysis software. A statistical interpretation assesses the rarity of the alleles from the result· ing DNA profile, which can be single-source or a mixture depending on the sample origin.

1

2

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I SAMrLE COllECTION. STORAGE, AND CHARACTiRIZATION

I Evldenc• (Question) I aample "Q"

f f ill

f i s

S'-,nlnvolvMJ 1 eo11ct1on I I ._.._,.. , a I 0 I I I u

J;

- � - � - A - ;

ll Separ.Jtlon/ Delee lien

ll Da� lnlerp�laUon

l SIAIIsbl I !n!Srptltallon J

u R A " c E

�/1411011 dii»Nse

r· . . ··················+

Excluslon(no match)

Q K Inclusion (match)

FIGURE I . I Ovetvlew ofsleps Involved in DNA testing

Ideally, the parameters and protocols for each step in this process are established through laboratory validation with quality assurance measures in place to aid in obtaining the high· est quality data (Chapter 7). Following the DNA testing, a written report is created sum· marizing the work conducted and results obtained. Jf the case goes to court, expert witness testimony may be required of the laboratory report's author (Chapter 18).

DNA analysis always requires that a comparison be made between two samples: (1) a questioned sample, commonly referred to as a "Q", and (2) a known sample, referred to as a "Kn (Figure 1.1). In forensic cases, crime scene evidence (Q) is always compared to a single suspect (K) or multiple suspects (K1, K2, K3, etc.). In a case without a suspect, the evidence DNA profile may be compared to a computer database (Chapter 8) containing DNA profiles from previous offenders (K1 ••• KJ.

Note that in Figure 1.1 under the reference sample steps, no characterization of the sam­ple is performed nor is there a statistical interpretation given of the rarity of the DNA pro­file. Since sample K is from a known source, there is no need to determine its origin (e.g., bloodstain vs, saliva stain) or to calculate a random match probability because through accu­rate chain-of-custody records the DNA analyst should truly know the source of the sample.

Other applications of DNA testing involve direct or biological kinship comparisons. With paternity testing, an alleged father (Q) or fathers (Q1, Qz, ... ) are compared to a child (K). The victim's remains (Q) in missing persons or mass disaster cases (Chapter 9) are identified

ADVANC£0 TOPICS IN FORENSIC DNA TYPING: METHODOLOGY

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SAMr1.E COUECt'ION 3 through use of biological relatives (K). Ukewise, a soldier's remains (Q) may be identified through comparison to the direct reference blood stain (K) that was collected for each soldier prior to combat and is maintained by a counby's military. In each situation, the known sam· pie K is used to assess or determine the identity of the unknown or questioned sample Q. A simple way to think about this comparison is that a K sample has a name of an individual associated with it while a Q sample does not.

The results of this Q-K comparison are either (a) an inclusion, (b) an exclusion, or (c) an inconclusive result. Sometimes different language Is used to describe these results. An inclu· sion may also be refenecl to as a "match" or as "failure to exclude" or "is consistent with." Another way that lab reports often state this information Is "the DNA profile from sample Q is consistent with the DNA profile of sample K-therefore sample K cannot be eliminated as a possible contributor of the genetic material isolated from sample Q." An exclusion may be denoted as "n�match" or "is not consistent with."

An inconclusive result may be reported with some evidentiary samples that produce par­tial or complex DNA profiles due to damaged DNA (Chapter 10), too little DNA (Chapter 11), or complex mixtures. As illustrated in Figure 1.1, if a comparison finds the Q and K sam­ples equivalent or indistinguishable, then a statistical evaluation is performed and a report is Issued stating an assessment of the rarity of the match.

Although the focus of modem forensic DNA testing involves autosomal STR markers, this same Q·K approach applies to other genetic marker systems: single nucleotide poly· morphisms (SNPs, Chapter 12), Y�hromosome markers (Chapter 13), mitochondrial DNA (mtDNA, Chapter 14), x�hromosome markers (Chapter 15), and non·human DNA (Chapter 16). However, some statistical calculations may be different in assessing match probabilities due to different genetic inheritance patterns. More on interpretation issues will be covered in the forthcoming volume, Advanced Topics ;, Forensic DNA Typing: Juterprelntion.

SAMPLE COLLECTION

Before a DNA test can be performed on a sample, it must be collected and the DNA � lated and put in the proper format for further characterization. This chapter covers the important topics of sample collection, characterization, and preservation. These steps are vital to obtaining a successful result regardless of the DNA typing procedure used. If the samples are not handled properly in the initial stages of an Investigation, then no amount of hard work in the final analytical or data interpretation steps can c:ompensate.

DNA Sample Sources

DNA is present in every nucleated cell and is therefore present in biological mate­rials left at crime scenes. DNA has been successfully isolated and analyzed from a vari­ety of biological materials. Introduction of the polymerase chain reaction (PCR), which is described in Chapter 4, has extended the range of possible DNA samples that can be sue· cessfully analyzed because PCR enables many copies to be made of the DNA markers to be examined. While the most common materials tested in forensic laboratories are typically bloodstains and semen stains, Table 1.1 includes a listing from one laboratory of over 100

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4 I SAMI'U COI.UCTlON, STOMCit, ANDOlARACTatiZATlON

TABLE 1 . 1 Some Sources of Biological M:nerial.s Used for PeR-Based DNA Typing. This Ll.uinc of Exhibits Produced Successful DNA Profiles in the C:m:�di:ln RCMP Forensic Biology l:!bor:uorics. Adilpted from Kupcrus « al. (2003).

Arm-11'51 (11ulomobile)

&seb�ll ap (brim)

Binder twine

Bottle Cilp

Chocolilte oor (handled end)

Ogaretle ligher

Cigarette p;�per Slgnal llght control lever (automobile)

Credit Cllrd (ATM Grd)

Delolchitble box mag01zlnc (pistol)

,Dime

Doorbell

Door pull

Drug syringe bum exterior

Electrial cord

Envelope (self·01dhesive)

Expended .22 e:�liber artrldge

Fingerprint (single)

G.!uz.e i!nd lilpe (to cover ftnger1ips)

Gloves (interior and exterior)

Hilmmcr (hei!d and Nndle)

H;andeuffs

Hi!Sh·lilce billl (1 em & h:md·rolled)

Hald·up note

Ignition iWltch

Keys

Knife h:lndle

Mngazine (from h:lndgun)

DNA SOURCE: MOUTH AND NOSE

Air �g (vehicle) Envelope

Apple core-bite marks GlolSS rim

ll.lJ:IclilVII (JcniUed Gp) Gum

Bile on sid�Jk Hilm (bile mark}

Bite milrk.s lnhDJer (inside mouth piece)

Bottle lop Upslkk (lop surC:1r:e ;and outside

Ducal sUck only (swab eut o£0 surf:�ce of lipstick C:ISe)

Cake (bite m.:�rk) N015:1l secretions (tissue}

Chee5eeillce (bite m.1rk} Pe:lch strudel

Chicken IVing l'op �/bottles

Chocol:1te b:lr (bite mark) Popsicle stick

Cig;tn!tle butt Ski CO:Il colllll'

P:1per (h;and-folded)

Pen (bank robbery- roped pen owned by bank)

Plll5tic: bilg handles

l'ry bilr with shoulder slr:lps

Remote car slilrter

Rope

Sc:rewdri\'er handle

Se.ll.belt buckle (automobile)

Shoe � Steering wheel

Tape on dub hilndle (exposed surfilce ;and lniUal start under l01yers)

Toy gun Wiener (hot dog)

SillilmJ (bite m:�rk)

Slilmps (including self·ildhcsive)

Stnw (from drinking gliUS}

Telephone receiver

Thermos (eup :�tlilched)

Tooth

Toothbrush

Toothpick

Utensils (fori:. spoon, etc.}

Vomit (blle-like sputum/liquid)

Welding soggles (rim of eye/nose)

(Conlinutd)

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SAMI'LE COllECTION s

TABLE 1 . 1 Some Sources o( Biolos:ical M:neri:!ls Usecl for PCR·&sed DNA Typing. This Listing of Exhibirs Procluced Succe55ful DNA Profiles in the Can:�cll:m RCMP Foreruic Biolof:Y laboratories. Ad�ptccl from Kupc:rus et al. (2003). (Canrinucd)

�II ap/rowboy hAt (swi.lb of Eyrgbsses (e.u and nose pi�) inside rim)

Bullet hole In wllll 1111d bullet

Buried remilins Bumed remains

Contilct lens fragments (from Vllcuum cle.1net �&)

DilndNff (Md cellulolr debris) from billilCI.lva/toque

Embryonic (umblllclll) cord embedded In p;�rafrV1

Hair

Hillr comb (for ¥»d hilir)

Hl!ild-rest (automobile)

Hood (Gitllched to bilck or J;lC�t)

r:�rilffin-embedded tissue

Razor (dispos;ab!J! type/blotde and pliiStiC Cilp)

Te01rs (on tissue) 1issue pi! per Wipin& of underAnm of 4hlrl (S\velll) Socks Tollet-Mife found In -toilet trap­

Urine In snow

Wllter-*5- trap of shower

unusual casework exhibit materials that yielded successful DNA profiles (Kuperus et al. 2003). Even a few cells left with latent fingerprint residue can serve as effective sources of DNA (Schulz & Reichert 2002, Balogh et al. 2003). DNA molecules are amazingly dura­ble and in many cases can yield DNA typing results even when subjected to extreme conditions such as irradiation (Castle et a!. 2003, Withrow et a!. 2003) or explosive blasts (Esslinger et al. 2004).

Biological Evidence at Crime Scenes

Different types of biological evidence collected at a crime scene c:an be used to associate or to exclude an individual from involvement with a crime. In particular, the direct transfer of DNA from one individual to another individual or to an object can be used to link a sus­pect to a crime scene. As noted by Dr. Henry Lee, formerly of the Connecticut State Forensic Laboratory, this direct tr.msfer could involve (Lee 1996): 1. The suspect's DNA deposited on the victim's body or clothing; 2. The suspect's DNA deposited on an object; 3. The suspect's DNA deposited at a location; 4. The victim's DNA deposited on the suspect's body or clothing; s. The victim's DNA deposited on an object; 6. The victim's DNA deposited at a location; 7. The wi !ness's DNA deposited on victim or suspect; or 8. The witness's DNA deposited on an object or at a location.

As Dr. Paul Kirk noted in his 1953 book Crime luvestigatiou: "The blood or semen that {the perpebcltor of a crime} deposits or collects-all these and more bear mute witness against him. This is evidence that does not forget... Physical evidence cannot be wrong; it cannot

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10 I SAMrLE COUECTlON, STORAGE, AND CHARACltiUZATION

with no insulation or refrigeration (Lee et al. 2010). These samples, which were dried down aliquots of 1 ng/J.1L, 0.25ng/J.1L, and 0.05ng/J.1L pristine genomic DNA, were compared at various time points over a 208-day window against equivalent samples stored in the labora· tory. While the shipped samples experienced extreme temperature ranges of almost 45"C and relative humidity differences of almost 60%, full ldentifiler DNA profiles were obtained with all of the tested samples (Lee et al 2010). These data suggest that the SampleMatrix material, now marketed by QIAGEN (Valencia, CA) as QiaSafe, will help preserve DNA outside of a stable, cold environment enabling cost savings for storing biological samples.

Studies have shown that bloodstain samples which are stored dry (through vacuum seal· ing with a desiccant) can be successfully stored for over 20 years at ambient temperatures and still yield full DNA profiles (Coble et al. 2008, Kline 2010}. Furthennore, an examina· tion of bloodstains on four different filter pi!pers found that keeping the sample dry through desiccation was more important than the type of paper (treated or untreated) that the sam· pie was stored on (Kline et at. 2002). Likewise, appropriate room temperature storage of soft tissue samples, which may be recovered during disaster victim identification (Chapter 9) has been successful (Graham et al. 2008).

Every effort should be made to avoid completely consuming or destroying evidence so that a portion is available for future testing if needed. As the 1996 National Research Council's Tl�e E.Vt1lunlio11 of Forensic DNA Evideuce states: "The ultimate safeguard against error due to sample mixup is to provide an opportunity for retesting" (NRCII, p. 81).

SAMPLE CHARACTERIZATION

When crime scene evidence is first received into a laboratory, it is usually evaluated to see if any biological milterial is presenl Some laboratories perform both prtliminary ltsts and couftnuatory tests prior to sending a cutting or swab for DNA testing in an effort to develop a DNA profile. A presumptive test, which really serves as a preliminary evaluation or exami­nation, may be followed by a confinnatory lest to verify the results of the first tesl

In a 2007 survey of 42 laboratories from 10 different countries, Ron Fourney and col­leagues at the Royal Canadian Mounted Police found that most of ilie surveyed laborato· ries perConn some form of either presumptive or confirmatory tests for biological screening (Fourney et at. 2007). A summary of their results is found in Table 1.2.

Forensic Serology: Presumptive and Confirmatory Tests

Forensic �vidence from crime scenes comes in many fonns. For example, a bed sheet may be collected from the scene of a sexual assault. This sheet will have to be carefully exam· ined in the forensic laboratory before selecting the area to sample for further testing. Prior to making the effort to extract DNA from a sample, presumptive tests are often performed to indicate whether or not biological fluids such as blood or semen are present on an item of evidence (e.g., a pair of pants}. Locating a blood or semen stain on a soiled undergar­ment can be a trying task. Primary stains of forensic interest come from blood, semen, and saliva. Identification of vaginal secretions, urine, and feces can also be important to an investigation.

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SAMI'LE CHARAC'Tt:RIZATION

TABLE 1 .2 Summ�ry ofResults from o 2007 Survey wminilll: Types ofPr�mptive and Confirm:nory Tests Performed In 42 1.:ibor:�tories (Fourney et ol. 2007).

Test Numbers Most Prevelanl Methods

Blood Presumptive 42/42 l'henolphthlllein, Luminal, Hem;astix

Blood Conlii"ITiiltory 17/42 Tilkilyama &: Hem;1Trilee

Blood Species ldenllflciltlon 36/42 Hem��TI'Xt!

Semen Presumptive 42/42 FiUl Blu!!, Allenlilte light 10urces

1 1

Semen Confinniltory 42/42 Micrt!scopic elmmiNiion with Christm;J.S Tree staining, ABACard for p30

Saliva Presumptive 35/42 Altemilte Usht Sources, l'hlldems

Saliv� Conlii"ITIOJiory 7/35 High levels of amylase

V.1giNI Auld Presumptive 21/42 Aile mille Usht Souras Vngll\ill Auid Conlirm.1tory 1/42 f;J.St BIW! (l)Upled with !'SA ilnd microscopic

examiNilon

Urine Presumptive 25/42 Altemille Ught Souta!S

Urine Confirmatory 1/42 BFID-Urlne JUt

Feces Presumptive 20/42 Urobilinogen (EdeiiiUIIl's test)

Feces Conlirm.110ry 0/42

Ho'llr 40/42 Microscopic exilmiNilon (or sultllbility /species

Serology is the tenn used to describe a broad range of laboratory tests that utilize antigen and serum antibody reactions (Ballantyne 2000). For example, the ABO blood group types are determined using anti-A and anti-B serums and examining agglutination when mixed with a blood sample (Li 2008). One of the principle tools of forensic science in the past, serology still plays an important role in modem forensic biology but has taken a backseat to DNA since presumptive tests do not have the ability to individualize a sample like a DNA profile can.

Presumptive tests should be simple, inexpensive, safe, and easy to perform (Shaler 2002). They should use only a small amount of material and have no adverse effect on any down· stream DNA testing that might be conducted on the evidentiary material (Tobe et al. 2007, Virkler & lednev 2009). Besides helping to locate the appropriate material for DNA analy· sis, stain characterization can in some cases provide probative value to a case (e.g., semen in a victim's mouth as evidence of an oral sexual assault).

Primary providers for presumptive forensic serology tests have been Abacus Diagnostics (West Hills, CA) and Seratec (Goettingen, Germany). Their iii·TJitro diagnostic tests, which appear very similar to home pregnancy tests, involve applying a small aliquot of a sample to a cartridge with a membrane containing specific antibodies. The presence of the appropri· ate molecules (e.g., hemoglobin with a blood test) on this lmmuno-c:hromatographic strip test will be detected as a colored line. Internal standards are run to verify that the test is working properly.

ADVANCED TOPICS IN FORENSIC DNA TYPING: METHOOOLOGY

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12 I. SAMI'I.ECOI.lECTION,STOIIAOE.ANDCfiARACTI!liiZATION

Independent Forensics (Hillside, IL) has released lateral flow strip tests for detecting the presence of blood, saliva, semen, and urine from forensic evidence. The RSID (Rapid Stain Identification) tests ore confirmatory for blood (Schweers et al. 2008) and semen and pre­sumptive for saliva and urine. These tests use different markers from the commonly used lateral flow strip tests (i.e., they do not use hemoglobin, PSA/p30, urea, or enzymatic activ­ity for the detection of blood, semen, urine, or saliva, respectively) and are therefore more specific with fewer false positives and false negatives.

Independent Forensics also has developed a forensic-specific fluorescence kit for stain­ing microscope slides used to scan sexual assault evidence for sperm called "SPERM HY-L!TER." This lest is confirmatory for human sperm heads. The RSID Blood and RSID Semen tests are confirmatory and designed to not cross-react with other human body fluids or body fluids of other animals like some of the presumptive tests do. Information on the RS!D products is available at http://www.ifi-leslcom/rsid.php.

Edwin jones in his review of methods for identification of semen and other body fluids points out that the fastest way to locate a body fluid stain is by visual examination Oanes 2004). Dried semen stains as well as saliva, urine, and vaginal fluid stains contain sub· stances that when irradiated with a handheld UV lamp or argon loser can fluoresce, or emit light, in the visible-light region. A high-intensity light source with appropriate excitation and emission filters Is known as an altemnle lighl sarrrce, or ALS. ALS is an effective screen­ing tool in the initial examination of forensic evidence (Vandenberg &: van Oorschot 2006),

Bloodstains

Blood is composed of liquid plasma and serum with solid components consisting of red blood cells (erythrocytes), white blood cells (leukocytes), and platelets (thrombocytes). Most presumptive tests for blood focus on detecting the presence of hemoglobin molecules, which are found in the red blood cells and used for transport of oxygen and carbon dioxide.

A simple immune-chromatographic test for identification of human blood is available from Abacus Diagnostics (West Hills, CA) as the ABAcard HemaTrace kit. This test has a hemoglobin limit of detection of 0.07 11g/mL and shows specificity for human blood along with higher primate and ferret blood Oohnston et al. 2003). On the other hand, the RSID Blood test from Independent Forensics utilizes monoclonal antibodies to the red blood cell membrane specific protein glycophorin A rather than hemoglobin and does not cross-react with ferret, skunk, or primate blood (Schweers et al. 2008).

Luminal is another presumptive test for identification of blood that has been popular­ized by the TV series CS/: Crime Sce11e l11111!$/igalio11. The luminal reagent is prepared by mix­ing 0.1 g 3-amino-phthalhydrazide and S.Og sodium carbonate in lOOmL of distilled water. Before use, 0.7g of sodium perborate is added to the solution (Saferstein 2001). Large areas can be rapidly evaluated for the presence of bloodstains by spraying the luminal reagent onto the item under investigation. Objects that have been sprayed need to be located in a darkened area so that the luminescence can be more easily viewed. Luminal can be used to locate traces of blood that have been diluted up to 10 million times (Saferstein 2001). The use of luminal has been shown to not inhibit DNA testing of STR5 that may need to be per­formed on evidence recovered from a crime scene (Gross et al.t999).

ADVANCED TOPICS IN FORENSIC DNA TYPING: METHODOLOGY

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SAMI'1ECHAilACIE\IZAnON 13

Demonstration that presumptive tests do not Interfere wjth subsequent DNA testing can be important when making decisions on how biological evidence is processed In a forensic laboratory (Hochmeister et al. 1991, Budowle et al. 2000). Unfortunately the use of Hemastix, a screening test for bloodstains, has been shown to introduce problems with downstream processing Involving magnetic-bead DNA extraction (Poon et a!. 2009). This problem was solved by first transferring a portion of the bloodstain under Investigation to a separate piece of filter paper for the presumptive test. The remaining portion of the original sample could then be processed for DNA extraction without coming in contact with the interferring chemicals.

Saliva Stains

A presumptive test for amylase is used for indicating the presence of saliva (Whitehead & Kipps 1975, Auvdel 19S6), which is especially difficult to see since saliva stains are nearly Invisible to the naked eye. Two common methods for estimating amylase levels in loren· sic samples indude the Phadebas test and the starch iodine radial diffusion test (Shaler 2002, Myers & Adkins 200B). The presence of saliva in a stain has also been verified through detecting oral bacterial DNA (Nakanishi et al. 2009, Donaldson et at. 2010).

Saliva stains may be found on bite-marks, cigareue butts, and drinking vessels (Abaz et at. 2002, Shaler 2002). As will be described later in this chapter, a molecular biology approach using messenger RNA profiling is being developed to enable sensitive and specific tests for various body fluids Including saliva (Juusola & Ballantyne 2003, Hanson &: Ballantyne 2010). This approach holds promise to penni! simultaneous tests for blood, semen, and saliva with great specificity and sensitivity. · ·

Semen Stains

Prior to the expanded use of DNA testing for high-volume crimes such as burglary, roughly two·thlrds of cases pursued with DNA analysis involved sexual assault evidence. Hundreds of millions of sperm are typically ejaculated in several milliliters of seminal fluid. Semen stains can be characterized with visualization of sperm cells, or acid phosphatase (AP) or prostate specific antigen (PSA or p30) tests (Jones 2004).

A microscopic examination to look for the presence of spermatozoa is performed In some laboratories on sexual assault evidence. However, aspenn!c or oligospennic males have either no sperm or a low sperm count in their seminal fluid ejaculate. In addition, vasec­tomized males will not release sperm. Therefore tests that can identify semen-specific enzymes are helpful in verifying the presence of semen In sexual assault cases.

Add phosphatase (AP) is an enzyme secreted by the prostate gland into seminal fluid and is found in .concentrations up to 400 times greater in semen than in olher body Ru· ids (Sensabaugh 1979, Saferstein 2001). A purple color with the addition of a few drops of sodium alpha naphthylphosphate and Fast Blue B solution or the fluorescence of 4-methyl umbelliferyl phosphate under a liV light indicates the presence of AP. Large areas of fabric can be screened by pressing the garment or bed sheet against an equal sized piece of mois­tened filter paper and then subjecting the filter paper to the presumptive tests. Systematic

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14 1- SMU'UCOUECTJ�. STORAOE, ANDCHARACT£1UlATION

searches may also be performed by carefully examining sections of the garment or bed sheet. ·Each successive .test can then help narrow the precise location of the semen stain (Saferstein 2001).

Prostate specific antigen (PSA) was discovered in the 1970s and shown to have foren­sic value with the identity of a protein named p30 due to its apparent 30000 molecular weight (Sensabaugh 1978). p30 was initially thought to be unique to seminal fluid although it has been reported at lower levels in breast milk (Yu & Diamandis 1995) and other flu­ids (Diamandis &: Yu 1995). PSA varies in concentration from approximately 300ng/mL to 4200ng/mL in semen (Shaler 2002). Seratec (Goettingen, Germany) and Abacus Diagnostics (West Hills, CA) market PSA/p30 test kits that are similar to home-pregnancy tests and which may be used for the forensic identification of semen stains (Hochmelster et at. 1999, Simich et at. 1999).

Laboratory reports where presumptive tests for semen were performed may indicate that an item was found to be "AP positive" or "p30 posilive"-in other words, semen was detected implying some form of sexual contact on the evidentiary item,

Direct Observation of Sperm

Most forensic laboratories like to observe spermatozoa as part of confirming the pres­ence of semen in an evidentiary sample (note that in Table 1.2, 42 out of 42 labs confirm semen). A common method of doing this is to recover dried semen evidence from fabric or on human skin with a deionized water-moistened swab. A porticm of the recovered cells are then placed onto a microscope slide and fixed to the slide with heat. The immobilized cells are stained with a "Christmas Tree" stain consisting of aluminum sulfate, nuclear Fast Red, picric acid, and indigo carmine (Shaler 2002). The stained slide Is then examined under a light microscope for sperm cells with their characteristic head and long tail. The Christmas Tree stain marks the anterior sperm heads light red or pink, the posterior heads dark red, the spermatozoa's mid-piece blue, and the tails stain yellowish green (Shaler 2002).

Professor John Herr at the University of Virginia developed several "sperm paints" to flu· orescently label the head and tail portions of spermatozoa with antibodies specific to sperm and thus make it easier to observe sperm cells in the presence of excess female epithelial cells (Herr 2007).

Independent Forensics' SPERM HY-LITER PLUS kit enables detection of even a sin­gle human sperm !tead in the presence of an overwhelming amount of epithelial cells. Development of sample characterization tools that utilize Ruorescently tagged monoclonal antibodies, such as the Si'ERM HY-LlTER kit, represents a major advancement and should enable much faster and accurate processing of sexual assault evidence.

Body Fluid Identification with RNA Testing

Another method for body fluid identification that has seen recent research activity is the monitoring of cell-specific gene expression through the analysis of ribonucleic add (RNA). Erin Hanson and Jack Ballantyne from the University of Central Florida published a thor­ough review of RNA profiling efforts for body fluid identification (Hanson & Ballantyne

ADVANCED 10PICS IN FORENSIC DNA TYPING: MIITHODOI.OGY

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r�-- ·--------� ---- � -�---- ---··-------------------

.L -� .. _,..1.. ...... -" -·••� • •• ••-•-"-'' -•-•• ' -'" ., �"" " C, - '•¥•-• �-,m-- ' ••• ' "'-''"- -·•-••• .) •. -·' - •

15 2010). They note that conventional methods for body Ould identification oflen involve labor-intensive, diverse approaches that are perfonned sequentially rather than simultane­ously. Both time and sample ate lost when many of these older characterization assays ate perfonned.

As can be seen by teviewing the previous sections and Table 1.2, thete ate diffetent pre­sumptive and confinnatory tests for each type of body Ouid. Some of the current tests have cross-teactivity with other species and most are not specific to a tissue or Ouid. In addition, because these traditional tests can only be perfonned one at a lime, precious evidentiary sample is often consumed and time expended in trying to identify a stain. A method that was both sensitive and specific to multiple body Ouids would be a major advance over the conventional approaches now in use.

Different types of cells in our body, such as skin versus semen, contain different collec­tions of mRNA (messenger ribonucleic acid) that are unique to that cell type. Therefore, mRNA profiling offers an opportunity io develop fluid- or tissue-specific assays provided that unique target genes can be found. .

Research on RNA techniques has shown that, although less stable than DNA (due to its single-stranded structure and often rapid destruction from digesting enzymes), RNA is use­ful for slain identification Ouusola & Ballantyne 2003). Work with RNA requires modified extraction protocols in order to co-extract RNA and DNA (Aivatez et al. 2004). The RNA can then be used for body Ou!d 10 while the DNA can be PCR·amplified for DNA typing pur• poses (Figure 1.3).

Multiple RNA transcripts have been detected with reverse-transcriplase-PCR followed by gel or capillary electrophoresis Uuusola & Ballantyne 2007, Haas et al. 2009, Fleming & Harbison 2010) or real-time PCR (Noreault-Conti & Buel 2007, Haas et al. 2009). Blood, semen, saliva, menstrual blood, and vaginal sectetions have been simultaneously identi­fied with some of these assays (Haas et al. 2009, Fleming & Harbison 2010). mRNA markers for blood and saliva have provided successful tesults on 16-year-old stains (Zubakov et al.

EvlclonUIIY Somplo

(slain from crime scene)

I

RNA

I ,.:.-.;: •• + (ll'lj.PCII

Bodyftuld ID

.

"-•IIINA •ndDNA

l DNA

l PCR

STR pn�ftllng

FIGURE 1.3 RNA and DNA co-alroctlon ...,. bios bolh body nwd ldenHfiralion ond STR profiling.

ADVANCED TOPICS IN FORENSIC DNA TYPING: METHODOLOGY

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r�-���,_·-·-·-----:--·-.. ·--·--------�--. ..,..-- --��,�--�-] L _ _______ _ ....

_ ____ ___ _ _ _ _ ___ ___ · -'----"'·-------- - ...... __ . . ... ____ _ .......... _____ . : . . ____ ... . . . l 16 I. SAM�LE OJI.LECTION,STORAOE, AHD CHARACTERIZATION

Roolollmo PCR (for pruena cw &bAne�� ofllt;tl gent)

Ravne tr.lnscdpl .. o PeR #J

RNA Ia':$ eDNA E$

\ CopHiary olaclraphorula

Hplratlonldelectlon jfor Pffl111ct « absenq� cftargtl gene)

FJOURE 1.4 RNA prt�filing Approoches. The reverx trilnsaiptase step uses gene-:specific primen to convert RNA lnlo o doubJe.slr.mded ronn (comple.,.nrary DNA, eDNA) f<>< slablllly. The PCR slop perronns exponenU.I amplifia�Uon or the eDNA t.mrsets and can be detected with either m�l-lime PCR (see Chapter 3) or capiU11ry elec· tropho,..is ("' C!Topler6).

2008, Zubakov et al. 2009). Figure 1.4 illustrates lhe approaches taken for RNA profiling to identify body fluids.

At least nine different J:eSean:h groups have identified candidate gene targels for the vari· ous body fluids of forensic interest (Table 1.3) and developed tissue-specific mRNA assays in order to create a comprehensive approach to body Ruid identification. These groups include efforts at the University of Central Florida (Orlando, Florida), Erasmus University (Rotterdam, Holland), the University of Bonn (Bonn, Germany), the institute of Environmental Scienoe and Research (ESR, Auckland, New Zealand), the Unive!Sity of Zurich (Zurich, Switzerland), the Vermont Forensic Laboratory (Waterbury. Vermont), Applied Biosystems (Fosler Oty, CA), Jngenetix Ltd. (Vienna, Austria), and the Japanese National Research inslitule of Polioe Science (Chiba, Japan).

A number of so-called "housekeeping" genes which should be present in every sam· ple, have been included In various assays lo act as an RNA poslive control. These include [l-aclin, glyoeraldehyde-3-phosphate dehydrogenase (GAPDH), ubiquilin conjugaling enzyme (UCE), glucose-6-phosphate dehydrogenase (GGPDH), and transcription elonga· tion factor 1"' (TEF).

The European DNA Profiling Group (EDNAP) conducted a collaborative exercise with 16 Jabs examining HBB, SPTll, and PBGD target genes for the identification of blood (Haas et al. 2011). Despile most of the laboralories not having prior RNA experience, 15 of the 16 participating labs produoed successful RNA profiles even with 6 differenl kils for RNA extraction, 7 different reverse transcriplion kits, S different PCR mixes, 7 different thermal cyclers, and 6 differenl Genelic Analyzers (Haas et al. 2011).

In an effort to find reliable tissuHpecific signatures from potentially degraded stains, micmRNA (miRNA) targels, which are typically less than 25 nucleotides in length, are being examined (Hanson et aL 2009, Zubakov el a!. 2010). Only lime wlll teJI how success· ful research efforts are for identifying and applying RNA or miRNA targets lo body fluid identificalion.

ADVANCED '!Ol'JCS IN FORENSIC DNA TYriNC: METHOOOLOCY

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S ... MIU CHARACTERIZATION

TABLE 1.3 List of Abbrc:viatiom for mRNA Gene Mnrkc:n Used in Body Auld ldcntifitlltion. For More lnfonnntion, � H:m�n &. Ballantyne (2010) and Associated Reference$.

1 7

Blood Semen Saliva V�;ln;al Secretions Mmslnl�l Blood Housekeep Ins HBB PRMl HTN3 MUC4 MMI'7 515

HBA PRM2 STATH HBDI MMI'IO �3Ctin ALA52 SECM1 I'RB4 ESRl MMI'Il CAPDH

HMBS SECM2 SPRR3 CK19 TEF CYf'A TCM4 SI'RRJA I'R UCE

ANK1 f'SA KRT4 C61'DH

sm KRT6A

CJQRJ KRT13

AMJCAl

AQ1'9

NCF2

CAS1'2

CSRJ

Al0X5AP

MNDA

ARCHAP26

Attempts to Determine Bloodstain Age

Many times in aime scene reconstruction it would be helpful to know how long a blood­stain has been on a surface. The quantitation of RNA degradation has been used in an effort to determine post-mortem intervals and to determine the age of blood stains (Anderson et al. 2005, Bauer et al. 2003a, Bauer et al. 2003b). A group from The Netherlands has shown that targeting T-cell rearrangements can be used to predict human age from blood with an accuracy of ::t9 years (Zubakov et at. 2010}. Application of this approach could enable the classification of a sample's source to an appropriate generation (child vs. adult vs. elderly individual).

Species Identification

Samples being processed as biological evidence may come from non-human sources. For example, in some missing person or disaster victim identification situations, human bones may need to be sorted from non-human bones. As part of sample characterization, species identification may be performed or outsourced to a laboratory that specializes in animal DNA testing (Chapter 16).

ADVANC£0 lOI'ICS IN FORENSIC DNA TYI'INC: METHODOLOGY

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I 'i li 0 C :; �. C E P R 0 J E C T

Press Release For all press Inquiries please contact: Alana Massie The Innocence Project

40 Worth Sl Suite 701 New York, NY 10013 '17 � c;qR1

Rochester Man To Be Freed 18 Years After Wrongful Murder Convk:tJon; DNA and Confession Lead to Actual

Perpetrator

New York State leads tfle nation In violent crimes committed by tflase who evaded justice when Innocent people were wrongfully convicted

(ROCHESTER, NY; Wednesday, April 28, 2010) - Frank Sterling Is set to be exonerated today In Rochester 18 years aftEr he was wrongfully ccnvlcted ot m�Wer, aa:onilng to the Innac:ena! Project, which represents him along with local attomey Donald 'Thompson.

DNA testing lmplaltes Mark ChrlstJe as the actual perpetratDr or the 1988 murder of an elderly woman for which Sterling was convlc:ad In 1992. Christie Wa5 a suspect lnvnecfiately

after the murder, and he told friends and associates at the Ume that he was guilty. He Is already serving a life sentence for murdering his rour·year-cld neigllbol" In 1991 - a crlme that could have been prevented f pollee had not focused on Frank Sterling for the 1988 mwder. Confronted with DNA test results linking hlm to the crime, Christie recendy gave multiple detailed confessions that Included fads that were not known to pollee or the public and have been ccrroboratl!d by the prosecution.

Sterling, now %, was convkrted based entirely on a corlessbn he gave after working a 36-hour trucldng shift fallowed by 12 hours In pollee custody for Interrogation that Included hypnosis. Amost Immediately, Stertlng recanted his confession. He had no criminal record or any kind, but pollee focused on him because his brother was lncai'Cl!r.1ted for atb!mptlng tD sexualtv assault the elderly � three years before she was murdered. After Sterling was convicted but before he was sentanctd, several or Chtlstle's friends and associates came forward and testlled under oath that he had cnnfessed to the crime, but the prosecution dismissed that tast!many. Sterling was sentenced to 25 years tD lfe In prison, and he would have been eligible for parole In 2016.

•Frank Sterling should never have been arrested, let alone convicted. This Is what happens when law enforcement offldals lock onto one SU5pltt and lgi'IOfe other I!Yklence,- said Vanessa Plltkln, Stnlor Staff AttDmey at the Innocl!nce Project. which Is alfiMated with cardozo School of Law.

More convictions have been CM!Itumed with DNA testing In New York than In almost any other stllte (with tile l!lCCeptlon or Texas and llllnals), yet legislators In New York have done little to enact reforms tD malte the justice system more tar, acmrate and reliable. For the last several yurs, reform packages to �nt wrongful convktlons have stslled at the State Legislature, while ather states - Including Texas, Mississippi, North Cllrollna and Ohio- have enacted laws that can help prevent wrongful convictions and make It easier to exonerate Innocent people.

"What more w!ll lt take ror New Yorlt to nx our afmlnal justD system? Twenty-six New Yorkers have been freed because or DNA after serving years, often decades, In prison for crimes they didn't commit Win It take 36, or 46, to finally get Albany focused on this?" asked Peter Neufeld, Co-Director ot the Innocence Prajett. According to the Innocence Project, In 11 of the 26 DNA exoneration cases In New York the DNA testing also helped Identify the adual perpetrators. In several of those cases, the perpetralxlfs had gone on tD commit additional violent crimes - each Ofle of which cculcl have been prevented If the right person had been llm!Sted and convkted for the earlier crimes.

-we have � a dozen vfdous crlmes In New Yaric 513te that would newr have happened II wrongful convictions had been pmented, • Neufeld said. "'They Include 5lx murders, four rapes and two attempted murders, and they are orV( the cnnes for which people wen! ultimately convicted. • No other state In the CDuntry has had mare violent aWne5 c:onvnltted by people who had evaded ur1er prosecutlan because or a wrongful convktlon, IICCDI'dlng tD the Innocence Project.

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The pad<age of rofonns that has languished In Abny Includes measures that would require the preservation of blologlall ovldence post-convlcllon, mandate electronic 11!Cll!dlng of ontlre Interrogations, lmprnVe how eyewitness ldentifiCitlon procedures ore conducted and lake other conaete 512p5 1D Improve the almlnal Justice system. List yeor, the New Vorl< Sllta Bar Association released a report calling ror reform In eodt or these areas. 'We hotle the governor and the legislature will enact the rofonns advocated by the slate bar assodallon, In the name or all or the J>I!OfJie who have been exonerated In New Yorl< and the victims of al""" that could have been pn!Vented( Neufeld said.

The New Yorl< Slate Bar Association report Is here, and a 2009 lnnacence Project report on wrongful convldlons and the ....., for reform In New Yorl< 1s here. -

In Slerllng's case, sa-called 'Touch-DNA, • or testing on skin cells left by the pepetralDr, Implicated �.The Innocence Project lnltlaly requested DNA testing an several Items or evfdonce In 2004, but a Judge only permitted testing on hair In the victim's hand thJt turned out to be her own. In 2006, tht Monn>e COunty D!slrlct At!omay's Olflce agreed to additional DNA testing an the victim's clothing. Seventeen areos of the clothing were tested, and Sll!rllng was excluded rrom all or them. Results on two key areas or the dathlng -one where the perpetrator would have grabbed the vfctlm while beaUng her, and the other where he would have pulled on her clothes- were cansfstent with Cllrfstle.

In January 2010, after the DNA testing was complete, Clvlstle met with Patkln and Richard Byington, an lnstluctar ror John E. Reid and Associates, the world's largest tnolner or lntelvlew and lnte!Tagallon technlqtles to law enforcement agencies, and confessed to the crtne. Twice In Aprll 2010 he met with reprosentatlves for the Monroe COunty 01str1ct Altamey's omce and again gave delalled canresslons that lnduded facts about the alme that are net publicly iMIIIable (Including tht weapon used to kill the victim).

Sterling maintained his Innocence thr1lughout his trfal and altlr his conviction. He appealed his mnvlctlon almost Immediately and never stopped fighUng to pnave that he did net comm� the alme. He plans to 11!maln In the Rochester area, IMng with longtkne l'amlly rrfends who stood by him thr1lughout his ordeal.

In addiUan to N!ut'eld, Potldn and Thompson, sevetal C.nlaza School of law studenls worked an the case at the IMacence Project, lndudlng Valerie Charles and Alexandra Reimer. One C.nla%0 student. Dolan Weinman, worked on tht case at the IM<>Cena! Project and then conUnued whon hi began wor1<111g at the New Yorl< law firm Well, Golsllal ll. Manges. The law firm runded an ox pert report an Stertlng's false confession and also provided pro bono legal liSSislance. Kr1lll, one or the world's leodlng lnvesUgaUve firms and lnvostlgator Jennifer Mackavkjak, provided crllcal pro bona a-nee an the case, as did John E. Reid &.Associates.

Innocence Project. Inc. ••• 40 Worth SL, Suite 701, NY, NY 10013 ••• www.innocancaprojecLorg

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• Mort local news Man freed In 1997 shooting of officer Judge gives ruling after fingerprint revelation

tbt liostonft\lobt BDSTDN.CDM'S MOST ilfMll:fiOntE ARCHIVES

By Jonathan Saltzman and Mac Daniel, Globe Stair 1 January 24, 2004

A judge freed a Roxbury man from prison yesterday after Suffolk County prosecutors acknowledged that the fingerprint used to convict him of shooUng a Boston pollee officer seven years ago was not his.

The stunning reversal occurred two days after prosecutors vowed to retry Stephan Cowans for shooUng Officer Gregory Gallagher, even though newly analyzed DNA evldenca showed that Cowans was not the shooter. Suffolk Assistant District Attorney David E. Meier said on Wednesday that his ol!ice would retry Cowans, relying on •compelling• evidence, Including a fingerprint on a glass the shooter used.

But yesterday, Meier reversed himself, teUing Superior Court Judge Peter Lauriat lhat the fingerprint evidence used at trial did not come from Cowans. "I can conclusively and unequivocally state, your honor, that that purported match was a mistake; Meier said, based on forensic tesUng conducted this week.

Cowans, who had served 6 1/2 years for a shooUng he Insisted he did not eommlt, walked out of Suffolk Superlor Court a free man. He became the seventh person to challenge a Suffolk County conviction successfully since 1997.

Cowans, who was convicted In 1998 of shooUng and wounding Gallagher In a Roxbury backyard, saki he never lost hope during his years In prison, because he knew he was Innocent and was confident that somehow the truth would surface.

"I never thought I would never get out," the 33-year-old Roxbury man said calmly after his release, Ran 'ked by delighted relaUves and lawyers. "I was one who never gave up on myself. •

Boston pollee dld the original analysis of the fingerprint lifted rrom a glass of water from wlch the shooter drank after he forced his way Into a nearby house. But after Cowans's legal team presented new DNA evidence this weak showing that he was not the person who drank from the glass or wore the hat and sweat shirt discarded at the scene, the district attorney's olllce had Boston and State Pollee specialists reanalyze the fingerprint

DNA analysis of evidence found at crime scenes was not routinely done et lhe Ume of Cowans's trial.

Meier was told yesten1ay morning that the new fingerprint analysts showed that the thumbprint did not belong to Cowans, and the prosecutor contacted Cowans's lawyers.

Wrthoot comment, the judge threw out the conviction and freed Cowans. Meier said the district attorney's omce has no Intention of retrying Cowans "given the state of the evidence.•

In a late-afternoon news conference at Boston pollee headquarters, Suffolk District Atlomey Daniel F. Conley and Acting Pollee Commissioner James M. Hussey expressed regret and embarrassment over the mistake that led to the Imprisonment of en IMocent man.

•seven years ago, the criminal justice system failed Stephan Cowans; Conley said. "It took seven

r Today (free) r Yeslllrday (lreel

(i PIS! 30 deys r List 12 monlhs

• Ady!nced !did! I Hlstor!c; �

ADVERTISEioi:NT cc.s�:t•-·---�-----=

•

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years lor that mistake to be corrected, seven years or Stephan Cowans's lila that he can, get back. 1

On behalf of tho trlml1111l jusllca system, we extend a sincere apology to Mr. Cowans.•

Conley sa!d there Will be 8 thomugh review or "lhe facts and circumstances or this case, the conviction, and the error. We cannot accept a high percentage of success as sufficianl; we cannot accept baing right jus! most of the Uma.•

The Boston Pollee Department has asl<td the lnlamaUonal AssoclaUon for ldenUIIcaUon, tho world's largest and oldest forensic group, and the FBI to make recommendallons about forming an oulslde lnvasllgaUva team to ravlew Boston pollee procedures for analyzing fingerprints, Hussey said.

Nonalhelass, Conley said, he believes the mlsldenlificaUon stemmed from •an honest mistake, an error by lha technician."

'We also have not forgoHon that a pollee officer was shot and nearly k!Red In the line of duly nearly seven years ago In a backyard • • • We will conllnue Ia lnvosllgate tho facts end circumstances of !hat shoollng," Conley said. ·

Hussey said pollee officials have spoken to Gallagher, now a delecllvo, who was among the ·

wHnessos who Identified Cowans as his assallanl "He's OK, and he still feels strongly that he's made the rfght ldentlficaUon," Hussey said.

Cowans was convicted In 1998 of shoaling Gallagher In the buHocks wllh the orroce�s 9mm Glock service pistol. Gallagher had pursued a man acUng suspiciously near Rafael Hernandez School on School Slreeton May30, 1997. He scumad with the man and lost his gun.

• On Wednesday, at the request of Meler, Lauria! had BllfHd to suspend Cowans's sanlence of 30 to 45 years In stale prtson, pending a defense moUon lor a new trial basad on a DNA analysis galharad by lawyers for the New England Innocence Projacl. Cowans had ramalned In jail while his family triad to raise lha $7,500 ball.

Th!! New England Innocence Project, which had taken Cowans's case, sent evidence from his trlal to a forensic DNA testing company, Orchid Callmarl< In Germantown, Md. Sweat from the brim of a baseball cap lost by Gallaghets assailant In the yard was tested, as well as a sweat shirt lha gunman ramovad In a house he forced his way lnlo on School Slreel The lab also tested saliva from the rtm of a glass mug In the house used by lha assailant. The DNA evidence was all from the same Individual, but R didn't match Cowans's. the analysis found.

Al tha hearing Wednesday, Meier said thai If lhe court threw out the convicUon, prosecutors would re!Jy the case, beceuso avldanca prasented at trial, Including lha fingerprint on the mug, was sUI! •extremely compelling."

The following day, members of the Boston PoUce Department new to Germantown to retrieve !he mug. Boston and Slate Pollee analysis compal'ld tho print found on the mug wllh a known print from Cowans, and they did not malch.

Cowans, who changed Into a brown sull aner he was released but 51111 wens the slrfpad whHa &neakers he had on In court. said !hare aren't "any words In lhe dictionary to explain what II was like" to spend 6 112 years In prison ror a crime he dldn, commll.

But ha saki he used lha Ume productively, earning his graduate equivalency diploma and !raining Ia become a barber. The worst lhlng was not being able to alland his molho�s funeral on Sapl 9, he said.

"My mother was one of my •llongesl supporters," he &ald. "You never think you wouldn't be there to auend something so Important as your mother's funeral."

On his first night of freedom, Cowans planned lo savor his favortle meal, which his grandmother cooked and pulln lha freezer when she thought he might be released Wednesday, The manu, she said, was a secrat.•

Cl Copyright 2006 Globe Newspaper Company. �12• Mora:

• Globe C!ty!Beafon stodcs 1

Stephan COwans

Incident O.te: 5/30!97

Jurisdiction: MA CNrvo: Aimed Amut W/ ln12tit to Hl.l'der, Home Invasion, Assaut ard B.ttWv by me;�ns ot a O. ngmus Wupon, Aimed Robbery, Asslut ll1d � on I I'Ob! Olfi:er, Assaut by muns or • DlngelllUS Wupon. unansed Passes:sbn of 11 F"runn Camtlcdan: Armed Assaut W/ lntert to Murder, tlornl lnvnbn, Amut lind Bat121y by muns of a 0� WNj)OI\ Anntd RDtiJely, Asslut and llattl!fy on a Fllb Ot'f'ar, Asslut bv means of a Dilngerous WNpon, Unt:ensed Pllssessbn of a A"eann Sentmce: 3�5 Yurs

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Year of Convlc!fon: 1998

Exoneration D�te: 212104 Senti! nee Sen�ed: 5,5 Ye.ars

Real perpeiTiltDr found? Hot Yet

Contrlb\ldng CaLtSes: Eyev.tness Hllklentfattln, Govemment MiscDn�Mt., UI'MIIdattd or lmprcper Forensl:: Sd!na! Compensation? Yes

Undetstllnd The causes: Eyewitness Mlsldentlric.abon

Understand The causes: Unvalldated or Improper Forensic: Science

On February 2, 2004, Stephan Cowans bec:ame the 14lst person In the United States to be exonerated as a result of postconvlctlon DNA testing. On January 23, 2004, having prodalmed his lnncance for over five and 11 half years, Cowans waited out or the 5\lt'Qik Superior COurt In Boston, Massachusetts. He was officially exonerated at a hearing on February 2, 2004.

On May 30, 1997, an orrla!t or the Boston Ponce Department was shot twice with his own service weapon In the backyard of a house In Jamaica Plain following a short struggle with an lrinown assailant. The IISSCIIIant flred an addiUonal shot at an Individual who was standing In the window of a second floor bedroom. The IISSi111ant ran from the scene, leaving the baseball hat he was wearing. He fortlbly ent:eted 11 nearby home, when! he stopped to drink from a glass of water. The assailant then fled, leaving both the gun and the sweatshirt he had been wearing.

Approximately two weeks later, the Injured pollee omcer ldentlfled Stephan Cowans from a photD array CDmposed of eight phottlgraphs. On July 2, 1997, the officer attended II lineup and once again singled out Cowans as the man who had shot hlm. On that same day the Individual who had been wab:hlng rrom his second floor bedroom window also Identified Cowans as the assailant.

The famDy who had been present In the home that the assailant had rordbly entered, and who had spent the most time with the assailant, did not Identify Mr. Cowans from the 1�.

At. trial, the Commonweallh used these Identifications to CDnYict Cowans. The Commonwealth also relied upon a latent nngl!fll'lnt that had been found on the glass mug used by the assailant Prosl!cutDfs pi'1!SI!rot2d expert testimony asserting that the latent Ongerprint matthl!d Cowzlns's lert: thumb print On May 22, 2003, the Sufl'olk Superior COUrt Issued an order approving a stipulation - entered Into between the lmOCI!fiO! Project, Cowans's counsel, and the Commonwealth - for the release of the glass mug, swabs taken rrom the muo. a baseball hat and the white sweatshirt for the ot.r1lOSeS of DNA tl!stlna. The tests revealed conctusNe

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the glass mug used by the perpetratcr. St!phan COwans was excluded as the 50\Jlte of the DNA an these Items.

In January, 20&1, the cammanweallh roquested that the white SWI!iltshlrt warn by the assailant also be submitted for DNA testing. The results reYI!illed the same praffle found an the baseball hat and the swab of the glass mug, and once again did nat matdl the DNA p111flle of COwans.

Alter reviewing the DNA test results, the Suffolk COunty District Attorney !H111iyzed the nngerprlnt that had been used to convict COwans. This ,......mlnalfan showed that the flngerprlnt did nOt ac:tualty belong to COwans.

On January 23, 2004, Cowans walked out of prison and Into his family's embn�ce. He hod been locarterllt!d far five and a half years far a crime ho did nat commit. There Is an ongoing Investigation Into haw such a mls!al<e Jn the nngerprtnt analy>ls was made.

On Octcber 26, 2007, stephan COwans waslilund dead In his home. Pollee saki he had been shot to dl!ilth, and an rnvest!gatron Is con�nung.

@ Innocence P111ject, All rights reserved. Affiliated with the Benjamin N. cardazo SChool of Law at Yeshiva Untversrty

Facebaak I Twflter I JnfoOinnaamcepl!lje<t.org Privacy Polley

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mbe Ntur lork �imes http:/ /nytl.ms/lqxpZvO

9 ACADEM Y A W A R D

NOM i N AT iONS

u.s.

DNA Evidence Clears Two Men in 1983 Murder By JONATHAN M. KAlZ and ERIK ECKHOLM SEPT. 2, 2014

LUMBERTON, N.C. - Thirty years after their convictions in the rape and murder of

an u-year-old girl in rural North Carolina, based on confessions that they quickly

repudiated and said were co�rced, two mentally disabled half brothers were declared

innocent and ordered released Tuesday by a judge here.

The case against the men, always weak, fell apart after DNA evidence implicated

another man whose possible involvement had been somehow overlooked by the

authorities even though he lived only a block from where the victim's body was

found, and be had admitted to committing a similar rape and murder around the

same time.

The startling shift in fortunes for the men, Henry Lee McCollum, so, who has

spent three decades on death row, and Leon Brown, 46, who was serving a life

sentence, provided one of the most dramatic examples yet of the potential harm

from false, coerced confessions and of the power of DNA tests to exonerate the

innocent.

As friends and relatives of the two men wept, a Superior Court judge in Robeson

County, Douglas B. Sasser, said be was vacating their convictions and Mr.

McCollum's death sentence and ordering their release. The courtroom erupted into a

standing ovation.

"We waited all these long years for this," said James McCollum, the father of the

man released from death row. "Thank you, Jesus," be repeated.

The exoneration ends decades of legal and political battles over a case that

became notorious in North Carolina and received nationwide discussion, vividly

reflecting the countcy's fractured views of the death penalty.

'Ibe two young defendants were prosecuted by Joe Freeman Britt, the 6-foot-6,

Bible-quoting district attorney who was later profiled by "6o Minutes" as the

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countxy's "deadliest D.A." because he sought the death penalty so often.

For death penalty supporters, the horrifying facts of the girl's rape and murder only emphasized the justice of applying the ultimate penalty. As recently as 2010, the North Carolina Republican Party put Mr. McCollum's booking photograph on campaign fliers that accused a Democratic candidate of being soft on crime,

according to The News & Observer of Raleigh, N.C. In 1994, when the United States Supreme Court turned down a request to

review the case, Justice Antonio Scalia described Mr. McCollum's crime as so

heinous that it would be hard to argue against lethal injection. But Justice Harry A. Blackmun, in a dissent, noted that Mr. McCollum had the mental age of a 9-year-old and that "this factor alone persuades me that the death penalty in this case is unconstitutional."

The exoneration based on DNA evidence was another example of the way tainted convictions have unraveled in recent years because of new technology and legal defense efforts like those of the Center for Death Penalty Litigation, a nonprofit legal group in North Carolina that took up the case.

In the courtroom here on Tuesday, the current district attorney, Johnson Britt (no relation to the original prosecutor), citing his obligation to "seek justice," not simply gain convictions, said he would not txy to prosecute the men again because the state "does not have a case."

Mr. McCollum was 19 and Mr. Brown was 15 when they were picked up by the

police in Red Springs, a town of fewer than 4,000 people in the southern part of the state, on the night of Sept. 28, 1983. The officers were investigating the murder of Sabrina Buie, 11, who had been raped and suffocated with her underwear crammed down her throat, her body left in a soybean field.

No physical evidence tied Mr. McCollum or Mr. Brown, both African-American, as was the victim, to the crime. But a local teenager cast suspicion on Mr. McCollum, who with his half brother bad recently moved from New Jersey and was considered an outsider.

After five hours of questioning with no lawyer present and with his mother

weeping in the hallway, not allowed to see him, Mr. McCollum told a story of how he and three other youths attacked and killed the girl.

"I had never been under this much pressure, with a person hollering at me and

threatening me," Mr. McCollum said in a recent videotaped interview with The News

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& Observer. "I just made up a story and gave it to them so they would let me go horne."

After he signed a statement written in longhand by investigators, he asked, "Can I go horne now?" according to an account by his defense lawyers.

Before the night was done, Mr. Brown, after being told that his half brother had

confessed and facing similar threats that he could be executed if he did not cooperate, also signed a confession. Both men subsequently recanted at trial, saying

their confessions had been coerced. The other two men mentioned in Mr. McCollum's confession were never prosecuted.

Both defendants initially received death sentences for murder. After new trials

were ordered by the State Supreme Court, Mr. McCollum was again sentenced to

death, while Mr. Brown was convicted only of rape, and his sentence was reduced to life. (In later years, the Supreme Court barred the death penalty for minors and the execution of the mentally disabled.)

Lawyers from the Center for Death Penalty Litigation, working with private law

firms, began pressing for DNA testing of the physical evidence in the case, which included a cigarette butt found near sticks used in the murder.

Recent DNA testing by an independent state agency, the North Carolina Innocence Inquiry Commission, of evidence gathered in the initial investigation

•

found a match for the DNA on the cigarette butt - not to either of the imprisoned men, but to Roscoe Artis, who lived only a block from where the victim's body was found and who had a history of convictions for sexual assault.

Only weeks after the murder, in fact, Mr. Artis confessed to the rape and murder of an 18-year-old girl in Red Springs. Mr. Artis received a death sentence, later reduced to life, for that crime and remains in prison. Officials never explained why, despite the remarkable similarities in the crimes, they kept their focus on Mr. McCollum and Mr. Brown even as the men proclaimed their innocence.

The only witness at the hearing Tuesday was Sharon Stellato of the innocence

inquiry commission, who under questioning from defense lawyers described the lack

of evidence tying the two men to the crime as well as the DNA findings implicating Mr. Artis. The district attorney said be bad no evidence to the contrary.

Joe Freeman Britt, the original prosecutor, told The News & Observer last week that he still believed the men were guilty.

After Tuesday's bearing, Mr. McCollum and Mr. Brown returned to prison to file

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the paperwork for their release, which to the frustration of defense lawyers and the men's relatives was delayed, apparently until Wednesday.

As exoneration appeared likely, Mr. McCollum recently reflected on his fate. "I have never stopped believing that one day I'd be able to walk out that door,"

he said in the videotaped interview with The News & Observer. "A long time ago, I wanted to find me a good wife, I wanted to raise a family, I

wanted to have my own business and everything," he said. "I never got a chance to

realize those dreams. "Now I believe that God is going to bless me to get back out there."

Correction: September :z, 20:14 An earlier version of this article misstated the given name of the Supreme Court justice who noted that Henry Lee McCollum had the mental age of a 9-year-old. It was Justice Hai-ry A. Blackmun, not Hugo. Jonathan M. Katz reported from Lumberton, and Erik Eckholm from·New York.

A version of this article appears in print on September 3, 2014, on page Al of the New York edition with the head'lne: DNA Evidence Clears Two Men In 1983 Murder.

@ 2015 The New York Times Company

Uriah Courtney

Incident Pate: 11/24/04 Jurlsdlc:tllln: CA Chuge: Wnlpphg. I'IPf, ass�ut, Rlllbery, false rnprtsonment

Conviction: kl:1nlppng, rape, liSSilut. false rnpr!lonment

se..unce: re

The Crime

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Year or Conviction: 2006

Exoneration �te: 6/2:4113

Sentence SeNed: 7 years Real perpetrator found7 Yes

Contrlblltfng �uses: Eyev.tness Misl:lcr6aliln Co1'1'1'tnUtlon? Not Yet

canrom1a Man Exonerated by DNA after Eight Years In Prison

On November 24, 2004, a man apprehended 11 16-year-old high school student off the street In Lemon Grove, cauromla, as she walked near an expresswil'( on her way to a friend's house. He threw her down In some bushes near a stoplight and sexually assaulted her. The victim managed to escape and caught the attention d a passing car. The driver let her In, offering to follow the perpetrator, but the victim asked to be brought home.

The Investigation

The victim reported that shortly before the at12ck, she saw 11 man staring at her from an old, rusty, llght-mlored truck with a fake wood camper. The victim and the driver of the passing car were unable to provide enough Information to create a composite sketch or the suspect. However, a second eyewitness, (who viewed the perpetrator from his car) did heJp to create a CDmposlte sketch. In addition, a truck matching the desalptlon was reported to the pollee.

The stepfather of a local man, Uriah COUrtney, owned 11 truck resembling this desalptlon. When shown a photo of the truck, the victim stated that she was 80% stJre It was the same truck.

eowtnev dosely resembled the physical desafpt!on of the suspect Courtney's photo was then plaa!d In a photo array and the second eyewitness, who had assisted with the composite skett:h, ldentiHed Courtney as the perpetrator. The victim was unable tD make a positive Identification. She was conflicted between three people In the ftneup, and only tentatively Identified Courtney sayl1"19 that she was "not Stn, but the most similar Is number 4."

Courtney was arrested on Febnlaty 9, 2005, for the sexual assault. DNA testing preformed prior to tJial of the victim's underwear and llngemal scrapings by the San Diego Sheriff's Department Crime Laboratory was Inconclusive.

The Trial

The victim testllled at tJial that she was sure of her Identification of both the truck and d Courtney. The second eyewitness, who Identified Courtney In the photo array, also ldentlned him at trial. A detective had told this wllness that Courtney was a •blg·tfme drug dealer."

At the time d the attzlck, Cotltney was working a cnnstructlon job at the post omce, whith his employer and a cn-worlcer both conllrmed In court A posmt worker also �ed that CoOOne'( was at work the entire week. 11is Is ams1stent with payroll records that show that Courtney was paid for work on the,day or the attzlck. Another postal worker testified that Courtney resembled one d the workers there that day. Courtney was convicted and sentei"ICI!d to life In prison on March 15, 2006.

Post-conviction

With the cooperation of the San Diego County Dlstrk:l: Attorney's otrlce and the errorts of the Cllllfomla Innocence � ...._ ,...,.....,..,,.. ,...,._....,""" ..... ,. M� ,,., ,..,A ...,.,....,_. .... aM. Tcv-k�· ,"A , ........ "'""'nc. .. ,..,.. ��

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resemblance tD COurtney and lived three miles from tile afme scene.

On June 24, 20U, San Diego SUperior CO..t Judge Walsh dismissed the c:harges against Courtney, and the ll!strfct AIIDmey agreed nat reby him. The Investigation lntD lhe suspecb!d real perpetratDr Is ongoing.

® Innocence Project, AU rights reserved. Afflllated with lhe Benjamin N. Cllrdoza School of Law at Yeshiva University

Facebaak I Twitter I lnfol!llnnacencepraject.arg Privacy Polley

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DNA clears man convicted of rape

Uriah Courtney, at left, was facing life In prison after being wrongly accused of kidnapping and raping a teenager In Lemon Grove. He was released after the California Innocence Project helped get new DNA testing In the case. He thanked tha program's director, Justin Brooks, at right, during a news conference. - Hayne Palmour IV SAN DIEGO - Even though he spent the past eight years In prison, wrongly convicted of kidnapping and raping a teenager In Lemon Grove, Uriah Courtney Is considered among the lucky ones.

Lucky, because his case caught the aHention of the Callfomla Innocence Project.

Lucky, because evidence In the sexual assault still existed to be retested for DNA.

And lucky, because he Is one of the few to actuany have his conviction overturned, said Califomla Westem School of Law professor Justin Brooks, who oversees the Innocence Project

Courtney, 33, was ralaased from Donovan State Prison on May 6 after new tests showed DNA from the victim's clothing matched another felon who lived In the area of the attack.

"If It wasn't for the California Innocence Project. I would sUII be sitting In prison with a life sentence,• Courtney said Tuesday, 8 day after District Attorney Bonnie Dumanls officially dropped the charges against hlm.

Wearing 8 T-shlrt of a California license plate reading "XONR8," Courtney at times choked back tears at the news conference as he recalled the powerlessness of being wrongly accused, and the relief of being set free.

"I never gave up hope,· he said.

The sexual assault occurred In 2004, the day before Thanksgiving. The 16-year-old victim was going to visit a friend when a man grabbed her from behind, threw her Into bushes near a stoplight and assaulted her.

She told Investigators that shortly before the sHack, she saw a man staring at her from a light-colored truck with a camper shell. She and a witness gave Information to Investigators ror a sketch of the man. A witness lal·er came forward, saying a similar truck had been spotted In Oceanside. Investigators traced It back to Courtney, a North Park man with a checkered past. He was already under Investigation for a drug case, and In January 2005 escaped from a work release program.

The victim tesUfled at trial that she was sure of her Identification of Courtney and the truck, and a jury convicted him. DNA tests were perfonned at the time but offered no meaningful results.

Courtney was sentenced to life In prison. At his sentencing, he told the victim that he didn't commit the rape, and he hoped that someday she'd find that out

He also pleaded guilty to an unrelated charge of possessing more than $100,000 In drug proceeds. For that crime, he was

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senlenced lo elghl years and elghl monlhs.

He passed his days behind bars pmylng, sludylng lhe Bible and amassing a small library on Christian doctrine.

"II'� somelhlng I found greal enjoymenl ln; he said.

His family, who lived In Imperial Beach al lhe time, vlsHed him each Salurday. In 2010, his falher conlacled lha Innocence Project. To lhe first law sludenl who vfslled him, he recalled a line from lhe victim's lestimony at trial, In which she described the attacker putung his face on her shoulder.

"If she hadn't mentioned !hat, we would've never known where to look, • said lha falhar. Richard Gambino.

In working wllh lhe District Attorney's Office, the Innocence Project lawyers pushed for the clolhlng to be retested using advanced DNA technology. The DNA pronle was then run through a database of convicted criminals, and It matched anolher man who bears a "slr1klng" resemblance to Courtney.

"Misidentification Is lhe leading cause of wrongful conviction In America; Brooks said. "Even though ll's very powtlfful to juries, we know It's nol strong evidence. When matched against DNA, It all falls apari, and that's what happened In this case:

That Investigation remains open and no arrest has been made, said Deputy Dlslr1ct Attorney Brent Neck. The man's name has not been released.

Prosecutors could no longer prove the case beyond a reasonable daub! and dropped the charges.

"I fell like 1 could fly, • Courtney said of walldng out of prison. "It's just like baing born again. It was just amazing, • he said, his voice · thick with emotion.

First on his wish lis I as a free man was a prime rib dinner. He Is still working on seeing his 10-year-old son, who IIvas In Texas. He had been prohibited from seeing lhe boy due to his slalus as a sex offender because of the rape, but that has since been lifted.

He Is now focused on moving forward and not looking back. He has a background In framing houses bulls lnleresled In starting anew wllh a career In electrical work on power lines.

He Is eligible to apply for c:Ompensatlon of 5100 a day for the time he spent In cuslody - about $292,000.

"I'm thankful for every day of freedom that ! have; he said. "Anger and bitterness just add to the pain and would sharpen lhe mind to revenge, and I don' I want Ia live my llfa lhat way."

Staff writer Erin Donnelly conlribuled to this report.

Cl Copyrtght 2015 The San Diego Union-Tribune, LLC. An MLIM LLC Company. All righls reserved.

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SUSPECT DNA PROFILES OBTAINED FROM THE HANDLES OF WEAPONS RECOVERED AT CRIME SCENES

Wlckenhalser, B.A.', and Challoner, C.M.2

'Royal canadian Mounted Police Forensic Laboretory Regina, 6101 Dawdney Avenue West, Regina, Saskatchewan, Canada S4P 3J7

. 2 Royal canadian Mounted Pollee Forensic Laboretory Vancouver, Vancouver, B.C., Canada

Abstract

PCB DNA typing offers the forensic scientist a vary sensitive and varsalle tool for locating and comparing questioned material left at a crime scene to known samples. As sensltMty Increases, so too does the variety of potential sources of questioned DNA, including sloughed skin cells. A case history will be presented demonstrating the transfer of epithelial cells to the handles of weapons left at a murder crime scene.

Introduction

A case history will be presented in which DNA was recovered from the wooden handles of two knives discarded at the scene of a murder. DNA was successfully extracted, ldentiflad, and compared to known samples rrom the deceased, and a murder suspect. A PCB DNA typing profile matching the deceased was obtained from blood Identified on the blade of one knife, ldentlfying It as the murder weapon. A mixture of male and female DNA was found on the handle of the murder weapon. A second knife discarded near the first. yielded a DNA profile origlnalilg from a single mate source. This proflle was tater matched to that of a male suspect. PCB DNA typing was successful in ail 1 1 loci attempted, Including amelogenin (gender determination).

Case Details

In the murder case In point, an assaHant broke Into a single family residence and removed two steak knives from the kitchen drawer (see figure 1 ). He then entered the bedroom of two eight year old twin girls, and subsequently stabbed one girl with a single falal thrust. The murder weapon and the second knife were then dropped on the deceased's bed (see figures 2 and 3). The father, who was awakened by screaming, confronted the intruder. Not knoi'Ang the full circumstances, the father struggled wlh, and ejected the intruder. Investigating members of the Royal Canadian Mounted Police attended the scene. Along with a number of allhiblls, the two wooden handled serrated edged steak knives were seized (see figure 4). Following the normal course of ilvestlgatlon, ramly members were Interviewed, and possble suspects developed. Due to darkness and confusion, the suspect was misidentified by tha father. The wrongfullY accused individual was ellmlnaled by Investigators, due to an airtight alb!. The two knifes were subsequenUy examined for the presence of suspect fingerprints using cyanoacrylate fuming and metal def)osltlon techniques. No fingerprints were located. The two knives and were submHied along wlh exhibits seized by investigators to the R.C.M.P. Forensic Laboratory Regina.

Scientific Investigation

Blood was identified on the blade of one of the knives (knne A). No blood was identified on the blade of the second knife (knife B). The blade of knife A and handles of each knife A and knife B were swabbed with dlstliled water. DNA was extracled rrom these swabs uslng a single-step phenol/chloroform extraction procedure, followed by Microcon 100 purification (1 ,2). The DNA was then quantified using a commerclelly avalable kit (ACES 2.0+ Human DNA Quantification Syslem - Glx:o BRL, Gaither&burg, MD). Known blood samples rrom the deceased and the suspect were processed separately and at later dates relaUva to questioned samples, utilizing the same technique described above. The known 1111mple rrom the suspecl was received and processed after results from the queslloned samples were generallld. Legislation governing the confidentiality of profies generated from DNA Warrant Samples cfoctates !her exclu&ion from display In this case summary.

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The DNA was amplified using three separate PCR muiUpleK systems developed by the RCMP (3·9). These systems are referred to as STR1 , STR2, and STR3. The amplified DNA was than analysed using an ABI Prism® 3n gena sequencer (ABI Prism®, Foster City, CA) with 4% acrylamlde: bfs.acrylamlde (19:1), 6M urea denalumg gels. The three separate mutUplex systems (STR1, STR2, and STR3) were uUiized to provide a profle of 10 polymorphic loci and 1 gender-determining locus (emelogenin). Approldmately 5 nanograms or purified DNA was ullized for STR1, 10 nanograms for STR2, and 5 nanograms for STR3, for each sample tested. Incorporation of an Internal lane standard (GeneScan® 350 ROX) enables use of ABO (Applied BloSystems Division) GeneScan® 2.0.2 and ABO Genotyper 1.1 (ABI Prism®, Foster City, CA) software for sizing STR DNA fragments.

Results

The swab from the blood ldenllfted on the blade of knire A yielded approldmately 392 nanograms of human DNA. The swab from the handle of knle A yielded approldmately 10 nanograms of human DNA. The swab from the handle of knife B yielded approldmetely 49 nanograms of human DNA.

MuiUplex PCR DNA typing was successful in obtaining profiles from the blade of knife A, the handles of both knife A end knifa B, and known blood samples from the deceased and a suspect. Three separate multiplex systems were uliized to compose DNA profiles (see figures 5, 6, and 7). Band sizes were generated eleclronically through the use of GeneScan® software (ABO -Applied BloSystems Division) (see table 1 ). Comparisons were made between !he known samples from !he deceased and the suspect and !he questioned prorDes.

The DNA profile produced from !he blood Identified on the blade of knife A matched the deceased. Due to the reduced forensic significant of this finding, as the knife was found aside the deceased, only one mulllplex system was utilized.

The DNA prolie produced from the swab of the handle of the knife A ma!Ched the deceased, \v!lh a trace male profile. These trace minor peaks fall below the RCMP minimum peak size guidelines (unpublished: 20 for STR1, STR2, and amelogenin; and 40 for STR3), therefore they were not reported. The 10 nanograms of human DNA round on the handle of knife A was consumed In !he production of the DNA profle using two STR mulllplex systems.

The handle of kn�e B, found on the bed of !he deceased, prov!ded a DNA profile using lhree multiplex systems. This DNA profile matched that of the known suspect blood sample within a very narrow tolerance. The largest discrepancy was within !he FGA locus at 0.28 bases, with much smaller variation seen at other loci. A large number of replicates of dupllcale known samples within the same gel, between different gels, and between different Instruments (ABI Model 3n Gene Sequencers), has supported the use of a 0.75 base match \v!ndow. Each locus falls wall \v!thln this tolerance. Therefore, a match was declared between the knife handle and the

suspect's known sample, \v!thln a high degree of rellabftlly. ·

Discussion

Assessing the ev!dentiary value of DNA type profle matches has long been a topic for debate. It is generally conceded that once a DNA type proiJe Is generated, lhe chances of randomly selecllng a matching profile from an unrelaled indMdual is axlramely Rlmota. This does not consider the forensic ccintext of !he llndlng, however. Establishment of an opinion regarding the significance of forensic findings should Include consideration of the following features:

1) Access - The suspect population Is confined to those with access to lhe area.

2) Transfer . The suspect must shed the DNA beamg cells at the scene, In a slgnlflcant location. These cells must then be recovered In sufficient amount and condition In order to generate Interpretable findings.

3) Dlscrinlnation power · The DNA type profile generated by these questioned cells must match those of the suspect known sample. This point Is represented by the Estimated Frequency of Occurrence.

In this case, the combined Estimated Frequency of Occurrence it !he Canadien Caucasian Population (RCMP data, unpublished) for the ten matching loci shared belween the knlfa B handle and the suspect equals

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approldmately 1 1n 85 Billion. When the forensic context Is considered along with the Estima!ad Frequency of Occurrence, a strong opinion may be slated regarding the origin of the DNA profla generated from the knife B handle. This strength of this opinion Is reduced accordingly 1\th a decreased number and discriminating power of loci available, as Is the case with knife A handle (seiiBn loci ) and blade (three loci)(see labia 1 ).

The potential use of sloughed eplthellal cells as a source of quesUoned DNA for forensiC comparison has been demonstra!ad (1 0,11,12). Although PCR STR typilg Is utilizing a 1/Bry minu!a quantity of DNA for a successful comparison, se\/Bral hundred or thousand cells are contributing to the profles seen. The area of cellular origin ol those cells Cl!n only be speculated In the absence of some confirmatory testilg, such as Identification of blood from the knife A blade. lntuHlvely, epithelial cells sloughed through activo handling onto a porous and "jagged substrate (at the microscopic ieiiBI), should comprise a good portion of the DNA yielding cells. Other possible eJCplanaUons for polenllal DNA sources eldsl Tho hands may act as vectors of transmission for cells from other body areas (13). These areas Include the mouth, nose, and ayes. For elCilmple, the cells of both the corneal epithelium (eyeball) and the bulbar epithelium (Interior of eyelids and edges of eyeball) are nucleated, and regenerated continuously, being totally replaced every 6 to 24 hours(14). As such, both are potenllal sources for the DNA found. Rubbing one's eyes may effectivoly load the hands with DNA beamg cells for transfer. Recent case eliPerlence bears out the DNA potenllal of the eyes as a DNA source, as a full DNA profile was obtained from fragments of conlact lens found at a crime scene (15).

The major source of the cells furnishing the DNA used to develop the resulting DNA profiles are thought to be epithelial calls sloughed from the hands. The rough and porous substrate of the knives Is also an excellent subslr;lte for the activo transfer of fingerprint ridges sheared through frictiOn. It Is Interesting to note that STR DNA type prolllng was successful, even after processing for fingerprints, using cyanoa�a!a fuming and metal daposHion techniques. It Is speculated that rather than jeopardize recovery of DNA bearing cells, the application of a vary thin layer of a�ic through the fingerprint fuming process may help seal cells In place, to be removed later though swabbing. Conversely, the rough wooden handle may have resulted In vary poor adherance of fingerprint roagenls, making their use 'non-DNA-destructivo'. In light of those results, end the mechanical nalure of traditional mechanical dustilg for flllgerprlnls, U Is recommended that cyanoacrylate fuming and metal deposition techniques be the methods of choice · for non-DNA-destructive fingerprint examinatiOn.

Dried blood often reaches a powdery consistency, and loses adherence from substrates, whio hold in evidence. Those blood flakes are. suscepbble to static, particula�y when packaged In plastic. As a result of handling, blood ftakes originating from 'licUms may S8IV8 as a potenllal contaminant to suspect DNA on weapon handles. Therefore, R Is recommended that bloodied ends of weapons be packaged separately from handles, in order to prevent mixtures lhrough cross contamination.

Summary/Conclusion

A match was declared between the knife handla and the suspect--s known sample, within a high degree of reUabiity. The combined Estimated Frequency of Occurrence in the Canadian Caucasian PopulatiOn (RCMP data, unpublished) for tho ten matching loci equals approximately 1 In 85 Bilion. The suspect was charged with murder, and subsequenUy plead gultylo the offence. This case demonstrates the probativo lialue of swabbing weapon handles for the purposes of association with suspect lndMcluals.

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Tabte_1:_STR_OW Profiles

STR Loci Known blood Knife A blade Knife A handle Knife B handle sample -victim

Band All ale Band Allale2 Band Sizo Allale3 Band Allala4 Band Sizes Slza Size [Paak Slza

Haight]

0351358 126.30 15 126.29 15 112.30 to 134.53 17 - 134.59 17 145.31

D21S11 218.33 26 202.14 to 222.54 29 246.93 240.71 33.2

FGA 279.35 23 254.18 to 263.67 24 283.37 24 302.00

vWA31/A 139.23 14 139.20 [338) 14 124.85 to 143.75 15 143.56 [259) 15 169.76 148.07 [11]1 16 147.97 16

152.08 [25] 17 152.01 17

TH01 158.79 6 158.75 (474) 6 158.82 6 1 53.10 to 170.56 (35] 9 17Q.62 9 180.51 173.53 9.3 173.58 [360] 9.3

F13A1 187.66 5 187.44 [89) 5 167.44 5 177.46 to 195.83 7 195.56 [90) 7 195.51 7 239.00

fas/fps 223.30 11 223.04 [250) 1 1 223.01 11 209.32 to 231.33 13 231.08 [195] 13 237.52

Amelogenln 106.10 X 106.04 X 106.02 X 106.02 X and (1021) y 112.12 y

106 and 112 112.12 (36)

DSS818 149.89 11 150.00 1 1 150.00 (251] 1 1 150.00 1 1 130.81 to 1 57.64 13 157.78 13 157.79 [260) 13 157.73 13 1117.85

D13S317 189.69 12 189.67 12 189.67 12 189.64 12 171.74 to [1406) 203.91

D7S820 217.88 [33]1 9 217.92 9 208.07 to 225.98 1 1 226.10 1 1 226.10 (556) 1 1 24D.51 230.12 12 230.17 12 230.17 [552) 1 2 230.16 12

1- peak helghls are below ROMP unpublished guidelines {20 for VNA31/A, and 40 ror 078820) and are thererora shown only ror llustration. 2 ·The combined Estimated Frequency or Occurrence In the Canadian Caucasian Population {ROMP data,

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unpublished) for the three matching loci between the knife A blade and the deceased equals approldmately 1 in 1.1 Thousand. 3 ·The combined Estimated Frequency of Occurrence in the Canadian Caucasian Population (RCMP data, unpublished) for the se1111n matching loci between the knife A handle and the deceased equals approldmatety 1 in 55 Millon. 4 - The combined Estimated Frequency of Occunence In the Canadian Caucasian Population (RCMP data, unpublished) for the ten matching loci between the knife a handle and the suspect (not shown for privacy regulations) equals approximately 1 in 85 aillon.

References 1. Gross-aeliard, M., Oudet, P., and Cham bon, P. Isolation of Hlgh·Molecular-Welght DNA from Mammalian Cells. Eur. J. alochem. 1973; 36: 32-38. 2. Maniatis, T., Fritsch, E. F., and Sam bock, J. Molecular Cloning: A LaboratOJY Manual, Cold Spring Harbor LaboratoJYPress, Cold Spring Harbor, NY, 1982. 3. Mayrand, P.E., Corcoran, K.P., Zlegle, J.S., Robertson, J.M., Hoff, L.a., and Kronick, M.N. The use of fluorescence defection and internal lane standards to size PCR products automatically. Applied and Theoretical Eleclrophoresls. 1992; 3: 1·11. 4. Kllmpton, C.P., Gil, P., Walton, A., Urquhart, A., MHIIcan, E.S., and Adams, M. Automated DNA Proliing Employing Mutliplex Amplification of Short Tandem Repeat Loci, PCR Methods end Applications. 1993; 3: 13-22. 5. Fregeau, C.J., Bowen, K.L, Eliot, J.C., Robertson, J.M., and Fourney, R.M. PCR-Based DNA Identification: A Transition in Forensic Science. Proceedings of the Foul1h International Symposium on Human Identification. Promega Corporation. 1993: 107-118.

6. Fregeau, C.J. and Fourney, R.M. DNA Typing with FtuorescenUy Tagged Short Tandem Repeals: A Sensitive and Accurate Approach to Human ldenlification. Blotechnlques. 1993; 15: 100-119. 7. Mannuccl, A., SUllivan, K.M., Ivanov, P.L., and Gil, P. Forensic application of a rapid and quanti!aiva DNA sex test by amplification of the X·Y homologous gene amelogenln. lnl J. Legal Mad. 1994; 106: 190-193. 8. Urquhart, A. Kimpton, C.F'. Downes, T.J., and Gil, P. Variation in short tandem repeat sequences -a survey of twelve mlcrosateiiMe loci for use as forensic identification markers. lnt J. Legal Mad. 1994; 107: 13·20. 9. Lygo, J.E., Johnson, P.E .. Holdaway, D.J., Woodrolfe, s., Whitaker, J.P., Clayton, T .M., Kimplon, C.P .. and Gill, P. The validation of short tandem repeal (STR) loci for use in forensic casework, Int. J. Legal Med. 1994; 107: 77-89. 10. Van Oorschot, R.A.H.; Jones, M.K. 1997. DNA fingerprinls from fingerprints. Nature. 387:787. 1 1 . Wiegand, P., Kleiber, M. 1997. DNA typing or epithelial cells after strangulation. Int. J. Legal Med. (1997) 110:181-183. 12. Bellefeunte J., Bowen K., Wilkinson D., Yamashita B. 1999. Crime scene protocols ror DNA evidence. Forensic !dent Research & Review Sec. (FIRRS), RCMP Head Quarters, 1200 Vanier Parkway, OHawa, Ontario, Canada, K1A OR2: Bulletin #45. 13. Whkehead, P.H., Klpps, A.E. A test Paper for Detecting Saliva Stains. J. Forans. Sci. Soc. (1975), 15:39-42. 14. Duke-Elder, S. System of Opthalmology, Volume ll, The Anatomy of the Visual System. HenlY Kimpton Publishers, London, England. 1976: 96-113. 15. Wlckenhelser, R.A., Jobin, R.M. 1999. Comparison of DNA Recovered from a Contact Lens Using PCR DNA Typing. Can. Soc. Forens. Soc. J. (in press).

-A . A . so-

Figure 1: Kitchen drawer from which knives A and B were removed

Figure 2: Vtew of bed, knife A encircled

-A . A . 51-

Figure 3: Vtew of bed, knife B encircled

Figure 4: Close-up view of knife A

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-A . A . 5 4 -

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-A . A . 55-

VISit AI Jazeera Eng&sh

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Better than 'CSI': High-tech DNA vacuum cracks cold case by Mark Teague (/proflleslt/mark-teague.html)

Crime scene investigation shows are some of the most popular on television and some of

my favorites. Who doesn't love the "CSI" crime-fighting trio of Nick Stokes, Greg Sanders

and Sara Sidle?

But, as I learned researching this story, lots of the techniques used on those shows aren't

as advertised. One of the biggest discrepancies is the time It takes to match evidence to a

suspect. On television it's nearly instantaneous, but in real life it can take hours, days,

weeks or months.

Along the road to finding the newest CSI innovations, I came across a story in which

technology really made a difference. Science and technology are game changers in crime

fighting. This means bad news for criminals. Crimes committed today have a good

chance of being solved. Furthermore, just because criminals got away with something

five, 10 or 20 years ago doesn't mean they're off the hook. As this technology advances,

so does the chance that an old crime will finally be solved.

-A . A . 56-

Case in point: Wasatch County, Utah. Sheriff Todd Bonner and his deputies made an

arrest in a murder case that dated back to 1995. Back then, he was still a deputy when he

arrived at a crime scene by the Provo River. A girl named Krystal Beslanowitch, just 17 years old, was murdered - beaten with a rock, her body left by the river.

WASA1CH CSUINW a�M�IRIP,f.'$ DI.PT,

The Wasatch County Sheriff's Department hopes to use touch DNA to make a conviction In a 1 9-year-old murder case.

Bonner did what he could. The sheriff's office interviewed dozens of people. It collected

evidence but couldn't come up with a suspect. Bonner never forgot about Beslanowitch,

even after a decade passed. She was never just in the back of his mind; she was front and

center. Sheriff Bonner kept a photo of her hanging on the board in his office.

Why did he care so much about this girl? Reports say she was a prostitute, but that didn't

matter to him. He never met her while she was alive, but he still wanted to bring the

perpetrator to justice. One of his fears was that the killer was continuing to harm other

young women. After all, Bonner is a father to three daughters. He did what he would

want law enforcement to do if something happened to one of his children. He says he

revisited the case every couple of weeks, but to no avail.

Then one day, everything changed. Bonner learned about "touch DNA," a process in

which blood isn't required to get a DNA profile. Instead scientists use skin cells. These

cells are so small they're not visible to the human eye. Sometimes you need as few as 16 to 20 cells to acquire a profile.

-A. A . 5 7 -

One of Bonner's deputies asked if h e could run some evidence using this new

technology. A rock believed to be the murder weapon was sent to a forensic lab, where a

new device from a company called M-Vac Systems was able to pull DNA from inside the

.rock. The device functions like a DNA vacuum, literally sucking out cells from the rock.

The M-Vac DNA collection system uses a wet-vacuuming method to extract DNA samples from porous surfaces like cement and rock.

They had a match. In late 2013, suspect Joseph Michael Simpson was arrested and

extradited from Florida. In the 1980s, Simpson served time In the Utah State Prison for

murder, so his DNA was on record. His case is pending.

In this episode of 11TechKnow," you'll see how everything Is changing - from ballistics to

cameras that take you places crime fighters have never been able to go before. Experts

have testified in court about touch DNA and have helped both to convict guilty parties

and to free wrongly convicted innocents.

The future looks bright for the men and women of law enforcement. But it's not looking

so good for criminals.

Watch "TechKnow," Sunday 7:30ET/4:30PT, to learn more about touch DNA and

other innovative crime scene investi&ation technology.

-A . A . 5 8 -

i!U)e tllt\6t)ington J)ost DNA Technology Moves Forward Lifting Skin Cells Pivotal in Getting Match on '96 Rape Suspect

By Matt Zapotosky Washington Post Staff Writer Monday, September 22, 2008

When the Maryland State Police Jab told her that the evidence didn't contain enough bodily fluid for a complete DNA profile, Shelly Progovitz was crushed. A man who had brutally raped a 12-year-old girl behind a middle school in Waldorf in 1 996 and then tied her hands and feet and forced a sock into her mouth would never be convicted for what he had done.

But Progovitz, a crime scene technician, did not let her disappoinbnent keep her on the sidelines long. That night, she went home and searched on Google for something she had read about in scientific journals but had never used: "touch DNA."

In April, after Progovitz had resubmitted the case to a private Jab in Virginia, she got a different kind of call The lab had pulled a complete profile from clothing at the scene using touch DNA. It matched the DNA of the suspect whom police had in mind since rape, 1 2 years ago.

"I was running and jumping," Progovitz said. "I was pretty ecstatic."

Not bad for the new girl in town at the Charles County crime lab.

Touch DNA - using genetic material from skin cells left on an item -- is analyzed just Hke that from blood or semen. It's typically collected by scraping an object or placing tape on it, then lifting the tape up. The technique, in use for four or five years, gained some prominence this summer when it was used to exonerate the parents of JonBenet Ramsey, said Angela Williamson, director offorensic casework at Bode Technology, a Lorton-based DNA lab.

Many police department labs, including those used by the Maryland State Police and police in Anne Arundel and Montgomery County, also use the technique. Those labs, though, often have significant backlogs. forcing some work to be outsourced to private labs, officials said.

Touch DNA is just as expensive as other sorts of genetic testing, which can range from S I ,300 to $ 1 ,500 an item, said Ernest Jones, a fingerprint specialist in the Charles crime lab. It also has a lower success rate. You can't see skin cells like you can blood or semen stains, so to get a good sample, you have to have a good idea where a suspect might have grabbed something, Williamson said.

That's where Progovitz came in.

Progovitz was only a year into her first job out of graduate school when the boxes came to the crime lab in La Plata in 2005 - 25 boxes of more than J ,000 case files, all needing a second look to determine whether they

-A . A . 59-

might contain any DNA evidence that could be analyzed.

Her boss, Sgl Joe Goldsmith, put out a simple request in the office: "Eventually, we have to go through this when someone has time."

Eager to prove her value in the small office, Progovitz, 28, teamed up with Jones, 65, to review the cases.

Progovitz, who has a master's degree in forensic science, brought the energy and organization: She entered all the infonnation on each case into a computer database, making sure that future generations would not have to repeat her painstaking work.

'Jones, a veteran officer with more than 45 years in law enforcement, brought the eltperience: He looked at each piece of evidence, pondering whether a suspect had left behind enough DNA to make the cost of resubmission worth it.

·

"We just got them all and went through, one at a time, • Goldsmith said. "It was the only way to do it and not miss something. •

Bode, the private lab Charles used because the state police lab had a backlog of cases, told them in April that their resubmission of the 1996 rape case had come back with a match. The file was passed along to a cold-case detective.

Detective Kevin Keelan recalled pulling up to the house in Edgewater on April 25 with just a hint of apprehension. He was there to talk to the family of the now-24-year-old woman who had been raped 12 years ago. Keelan was not sure how they would take the news that, more than a decade later, DNA evidence suggested that the original suspect, named James C. Cole, had raped their daughter.

The woman's father, who requested anonymity to protect his daughter's privacy, answered the door. He said he was a bit surprised by the presence of two well-dressed men in his driveway.

"I'm thinking, 'police or Jehovah's Witnesses,' " the father said in an interview. "They proceeded to tell me, the DNA they have now, they can do different things with. •

The man quickly called his wife, who was at work, and gave her basic details. He also called his daughter, at work in Annapolis, and told her that she needed to get home quickly. He did not tell her why, so she called her mother.

"I was frantic," the woman said. "Did they know who it was? Was he in jail? Out of jail? Did he know me?"

On the day of the rape, the woman barely got a look at her attacker. She said she was walking home from athletic courts behind Benjamin Stoddert Middle School when she saw, a man who looked as if he was limping in the woods nearby. Before she knew it, he had come up behind her, grabbed her and forced her into the woods. He slammed her into a tree, flashed a knife and raped her.

"I was 12 years old. I didn't know what rape was," the woman said. "I didn't quite understand what had happened. ! knew that it shouldn't have.".

When she sat down with police 12 years later, she told them unequivocally that she wanted to help in any way she could, even if it meant taking the witness stand and dredging up painful memories.

"For me, even now, if nothing even happens . . • . Further, that's a sense of closure," she said. "There was

-A . A . 60-

always doubt in my mind that that person could be out beret doing that to somebody else."

On June 1 3t Cole, 51, was indicted on rape charges and is set for trial in De(;ember. He w8S already in jail for a different 1996 rape.

Progovitz and the others at the Charles crime lab have never met the victim. Although they share her sense of elation, they are already thinking about their next project: evaluating the more than J ,000 cases specifically for touch DNA. When they started going through the case files back in 2005, that technology was in its infancy, they said.

"Once you realize that the sky is the limit with DNA now, and anything that anyone touches in the course of a crime could yield DNA, your thought process totally changes," Goldsmith said. "That's what we're here for."

VIew all e11mrnents that havt bHn posted about thlt an Ide.

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-A. A . 61-

COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT

SUPRIOR COURT DEPARTMENT

BRISTOL, IS. Docket Nos. 1973CR43558

1973CR43559

1913CR45045

COMMONWEALTH

v.

EDWARD STANLEY LYKUS

MEMORANDUM OF DECISION AND ORDER ON

DEFENDANT'S POST-CONVICTION MOTION FOR

SCIENTIFIC/FORENSIC ANALYSIS PURSUANT TO G.L. c. 278A

In 1973, the defendant, Edward Stanley L ykus, was convicted of first degree murder,

kidnapping and extortion. He has filed a post-conviction motion, pursuant to G.L. c. 278A, for

DNA testing of a postage stamp that was affixed to the envelope containing the ransom note

admitted in evidence at trial. He seeks a scientific comparison of any DNA that may be

recovered from the stamp with his own DNA. The Commonwealth opposes the motion.

The defendant's attorney, Eva G. Jellison, submitted affidavits dated May 2"d, September

19111 and November 121� of2014.1 The court also held an evidentiary hearing at which the

defendant presented testimony of Carll Ladd, Ph.D., who is an expert in DNA analysis. In

opposition to the motion, the Commonwealth submitted an affidavit dated July 31, 2014, signed

by Sharon M. Convery Walsh. She is employed as the Technical Leader of the DNA Unit and

the Combined DNA Index System at the Massachusetts State Police Forensic and Technology .

Center.

1 The Commonwealth objects to submission ofthe affidavit dated November 12, 2014. That objection is overruled.

'

-A . A . 62-

FACTS

. . The facts of the �ase are set out in Commonwealth v. Lylcus, 367 Mass. 191 (1975) (Lylcus

1), S.C., 406 Mass. 135 (1989) (Lylcus II) and S.C., 451 Mass. 310 (2008) (Lylcus III). Additional

facts are based on the credible evidence presented by the parties in regard to the defendll1lt's

motion.

On November 2, 1 972, thirteen-year-old Paul Cavalieri was kidnapped and murdered in

North Attieborough. The kidnapper sent a ransom note to the victim's family. They turned it

over to police. The note was contained in an envelope that was admitted at trial as exhibit 15.

The envelope had a postage stamp affixed to it. The stamp subsequently became detached from

the envelope. The stamp and five staples were placed in a clear plastic envelope and admitted at

trial as exhibit 60? The envelope and the stamp were preserved in the custody of the Bristol

County Superior Court Clerk's office from the 1973 trial until the present, except for the period

of the defendant's first appeal when they were In the custody of the Clerk of the Supreme

Judicial Court.

If the person who affixed the postage stamp to the envelope did so by licking the stamp, it

is likely that the person's DNA was transferred to the stamp through that person's saliva.

Although forty-two years have passed since the postage stamp was affixed to the envelope, DNA

testing of the stamp is possible and may produce scientifically reliable evidence.

DNA can degrade due to environmental factors. However, the postage stamp In question

is in good condition. II appears dry and mold-free. In addition, even if DNA on the stamp is

degraded, DNA testing may still be able to generate a partial DNA profile that would be

sufficient to exclude a person as the source of the DNA on the stamp.

' Exhibit 60 is described on tho clerk's exhibit list as "five slaples,; with no mention of a slamp. At trial, the staples had greater evidentiary significance than the stamp due to a comparison of the staples with tho defendant's Slapler. However, the poslage cancellation marks on tho stamp match the cancellation marks on the envelope.

2

-A . A . 63-

ANALYSIS

G.L. c. 278A establishes a procedure by which a defendant may obtain post-conviction

scientific testing, including DNA testing, of evidence. Section ?(b) of the statute provides that

\he CD\lrt "sbaU allow" the requested scientific analysis if the defendant demonsll<lt� six facts by

a preponderance of the evidence.

The first required showing is that "the evidence or biological material exists." G.L. c. . .

278A, § 7(b)(l). The postage stamp that was on the envelope containing the ransom note exists.

It was admitted in evidence at .trial and is now in the custody of the court clerk. The

Commonweallh contends, however, that the defendant has failed to satisfy this requirement

because he has not shown that the stamp contains biological material. That is true but the statute

requires that the defendant show that either the evidence or the biological material exists. The

stamp exists and is the evidence subject to scientific testing.

The second requirement is "that the evidence or biological material has been subject to a

chain of custody that is sufficient to establish that it has not deteriorated, been substituted,

tampered with, replaced, handled or altered such that the results of the requested analysis would

lack any probative value." G.L. c. 278A, § 7(b)(2). On receipt of the ransom note, the victim's

family gave the note and the envelope with the affixed stamp to the police. The police and

agents of the Federal Bureau oflnvestigation had possession of the evidence prior to the trial.

Since the 1973 trial the envelope and stamp have been in the custody of the clerks of the

Superior Court and the Supreme Judicial Court. The stamp has been preserved in a plastic pouch

and appears to be in good condition. Even if DNA on the stamp has degraded somewhat, there

are methods of DNA testing that could produce results that are sufficient to exclude a person as

3

-A . A . 64-

the source, of the DNA. Thus, it is likely that any DNA on the stamp has not deteriorated to the

point where scientific testing would lack "any probative value."

The third requirement is that prior testing was not done for certain reasons. One such

reason is 1hat "the requested analysis had not yet been developed at the time of the conviction."

G.L. c. 278A, § 7(b)(3), incorporating § 3(b)(5)(i). The murder trial was in 1973, which was

long before DNA testing was used in Massachusetts courts. Commonwealth v. Curnin, 409 . . . ,.

Mass. 218, 221 (1991) ("The use of DNA testing for forensic purposes is of very recentorigin:")

The Commonwealth does not dispute that DNA analysis was not available at the time of the

defendant's conviction.

The fourth requirement is ''that the requested analysis has the potential to result in

evidence that is material to the moving party's identification as the perpetrator of the crime in the

underlying case." G.L. c. 278A, § 7(b)(4). The parties disagree as to whether potential DNA

evidence excluding the defendant as the person who affixed the postage stamp to the envelope

containing the ransom note would be "material" to the identification of the defendant as the

person who committed the kidnapping and murder.

The defendant contends that evidence that someone else sent the ransom note would be

material to his identification as the culprit because the Commonwealth argued at trial that the

kidnapping, extortion and murder were carried out by a single individual. Defendant's Post-

Conviction Motion, pp, 9-10. The Commonwealth contends that such evidence would be

immaterial "because .another person could have [licked the stamp] without knowing that it would

be affixed to an envelope which would contain, at some point, a ransom note" and because of

other, overwhelming evidence of the defendant's guilt. Commonwealth's Response to

Defendant's Post-Conviction Motion, p. 4.

4

-A . A . 65-

Our appellate courts have not defined the meaning of the phrase, "material to the moving

party's identification as the perpetrator," in section 7(b)(4); but the Supreme Judicial Court has

defined the meaning of identical language in section 3(b)(4), which sets out the requirements a

defendant must meet during a threshold review of the motion by the court. Under section 3[bX4)

the Supreme Judicial Court has interpreted the materiality standard broadly:

Neither G.L. c. 278A, § 3(b)(4), nor any other subsection ofG.L. c. 278A, § 3 , imposes upon a moving party the burden of establishing a reasonable probability of a more favorable result at trial .

•••

A moving party has no burden to establish that the requested analysis would have had any effect on the underlying conviction, and the motion judge is not called upon to weigh the evidence that was presented at trial against alternative theories of guilt.

Commonwealth v. Wade, 467 Mass. 496, 507-508 (20 14).

Since the language in section 7(b)(4) is identical to the language in section 3(b)(4) of the

statute, the materiality requirement must be construed consistently under both sections. "'Where

the Legislature uses the same words in several sections which concern the same subject matter,

the words "must be presumed to h�ve been used with the same meaning in each section.'""

. Commonwealth v. Wynton W:, 459 Mass. 745, 747 (201 1), quoting Insurance Rating Bd. v.

Commissioner of Insurance, 356 Mass. 1 84, 188-189 ( 1 969) and Liddell v. Standard Ace. Ins.

Co., 283 Mass. 340, 346 (1 933).

Under this standard, the defendant has satisfied the materiality requirement by showing

that potential DNA evidence would have "some logical connection with the facts of consequence

or the issues." Black's Law Dictionary, Evidence (!Jl' ed. 2009) (defining "material evidence").

It is not necessary at this stage for the defendant to demonstrate that such evidence would be

5

. .

•

-A . A . 66-

sufficient to challenge his conviction. That, of course, will be the central issue if the defendant

moves for a new trial after DNA testing.

The fifth required showing is that "the purpose of the motion is not the obstruction of

justice or delay." G.L. c. 278A, § 7(b)(5). The defendant has been convicted and is serving his

sentence. There is no chance that allowing the defendant's motion will obstruct or delay justice.

The final requirement is that "the results of the particular type of analysis being requested

have been fuund to be admissible in courts of the commonwealth." G.L. c. 278A, § 7(b)(6} . .

DNA testing results are routinely admitted in evidence in Massachusetts. Commonwealth v.

Bizanowicz, 459 Mass. 400, 407 {201 1) ("There is no scientific debate over the methodology by

which such DNA matches are obtained or their validity.")

Under the broad standard ofG.L. c. 278A, the court must allow the defendant's request

for DNA testing of the postage stamp. When allowing such a motion, the court is required to

"specify conditions on the analysis, including, but not limited to, the transportation, handling,

and return of evidence or biological materials, to protect the integrity of the evidence or

biological material and the analysis." G.L. c. 278A, § 8(a). The Commonwealth and the

defendant are required to confer and, .ifpossible, agree on the laboratory to conduct the scientific

� ' """-� -.. t�ing.-G.L. c. 278A, § 8(b). If the parties cannot agree on a forensic services provider, they are'

to submit the names of proposed providers to the court and the court will then make the

selection. G.L. c. 278A, § 8(c). The court therefore directs the parties to submit their proposals

to the court within forty-five days concerning the laboratory to conduct the testing, the

procedures recommended for transporting, handling and returning the postage stamp and any

other procedures required to accomplish the DNA testing.

6

•

-A . A . 67-

ORDER

The defendant's motion for scientific/forensic testing of the postage stamp designated as

trial exhibit 60 is ALLOWED . · The parties shall confer and report to the court within forty-five

days regarding the identity of the laboratory to conduct the testing, the procedures recommended

for transporting, handling and returning the postage stamp and any other procedures required to

accomplish the DNA testing.

January 31, 2015 � · Thomas F. MeG re, Jr. Justice of the Superior Court

· - '>.:�' w . . , _ , . , .._ - -

7

... - --.... .�- · �...-..

NO . S JC- 1 1 8 1 5

COMMONWEALTH

v .

TYRONE CLARK

BRIEF AND ADDENDUM OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES INNOCENCE PROGRAM, NEW ENGLAND INNOCENCE PROJECT , INNOCENCE NETWORK, AND MASSACHUSETTS ASSOCIAT ION OF CRIMINAL DEFENSE LAWYERS

AS AMI C I CURIAE