STATE OF MICHIGAN IN THE MICHIGAN SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Michigan Supreme Court No. 154445 Plaintiff-Appellee, Court of Appeals No. 323741 Wayne County No. 14-001748-FC JOHNNY RAY KENNEDY, Defendant-Appellant.

BRIEF OF AMICI CURIAE SHAWN BROWN, TERRY CEASOR,

JUWAN DEERING, MILTON LEMONS & KARL VINSON

Michigan Innocence Clinic

University of Michigan Law School Imran J. Syed (P75415)

David A. Moran (P45353) Rebecca L. Hahn (P80555)

COUNSEL FOR AMICI CURIAE 701 S. State Street

Ann Arbor, MI 48109 (734) 763-9353

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................. ii

INTEREST OF AMICI CURIAE .........................................................................................1

INTRODUCTION ...............................................................................................................2

ARGUMENT .......................................................................................................................3

I. The Majority Opinion Below Turned On Two Cases That Were Wrong When Decided, And Have Since Been Completely Repudiated .....3 A. People v Tanner ..................................................................................3 B. People v Leonard ................................................................................4

II. The Court Should Disregard The State’s Argument That A Defense

Expert Would Not Have Mattered In This Case; Such Convenient Hindsight Assessments Have Been Repudiated Time And Again, And Cases Based In Forensic Sciences Are Too Complex To Dismiss The Expert Issue So Flippantly ...........................................................................7 A. Forensic Evidence Is Never As Simple As It Seems In Hindsight .....7 B. The DNA Techniques Used In This Case Are Complex And Potentially Flawed ..............................................................................9

III. The State’s Contention That The Particular Expert In This Case Was

Not An Expert Is A Red Herring That Only Serves To Distract From The Real Issues In The Case ......................................................................11

CONCLUSION ..................................................................................................................12 APPENDIX A - See Guilt by the Numbers: How fuzzy is the math that makes DNA evidence look so compelling to jurors?, CALIFORNIA LAWYER MAGAZINE, April 2009

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TABLE OF AUTHORITIES

Cases

Ake v Oklahoma, 470 US 68; 105 S Ct 1087 (1985) ...........................................................2

Daubert v Merrell Dow Pharm., Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993) .......................................................................................................7 Dist Attorney’s Office for Third Judicial Dist v Osborne, 557 US 52; 129 S Ct 2308; 174 L Ed 2d 38 (2009) ..............................................................................10 Hinton v Alabama, -- US --; 134 S Ct 1081; 188 L Ed 2d 1 (2014) ............................2, 6, 9

Leonard v Michigan, 287 F Supp 2d 765 (WD Mich), (report and recommendation Adopted 256 F Supp 2d 723 (WD Mich 2003) ....................................................................6 Melendez-Diaz v Massachusetts, 557 US 305; 129 S Ct 2527; 174 L Ed 2d 314 (2009) ...................................................................................................6, 7 People v Ackley, 497 Mich 381; 870 NW2d 858 (2015) .................................................8, 9 People v Agar, 314 Mich App 636; 887 NW2d 662 (aff'd in part, vacated/reversed in part 500 Mich 891; 886 NW2d 717 (2016) .................................................................4, 9 People v Kennedy, 893 NW2d 337 (2017) ..........................................................................5

People v Leonard, 224 Mich App 569; 569 NW2d 663 (1997) ......................................3, 5

People v Tanner, 469 Mich 437; 671 NW2d 728 (2003) ................................................3, 4

Tanner v Yukins, -- F3d --, 2017 WL 3481867 (CA 6 August 15, 2017) ............................4

United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984) ..............2, 11

Rules and Statutes

MCL 775.15 ...................................................................................................................4, 12

MRE 702 ..............................................................................................................................7

Other Authorities

Guilt by the Numbers: How fuzzy is the math that makes DNA evidence look so compelling to jurors?, CALIFORNIA LAWYER MAGAZINE, April 2009 ................................9

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“Subjective DNA Mixture Analysis, Used in Thousands of Cases, Blasted by WH Panel,” FORENSIC MAGAZINE, September 8, 2016. ....................................................10 Itiel Dror & Greg Hampikian, “Subjectivity and bias in forensic DNA mixture interpretation,” SCIENCE AND JUSTICE, August 2011 .........................................................10 DNA FOR THE DEFENSE BAR, U.S. Dept. of Justice, Office of Justice Programs, June 2012…………………………………………………………………………… …9-10

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INTEREST OF AMICI CURIAE

Amici are Michigan residents who were convicted of various felonies and are currently

represented by the Michigan Innocence Clinic at the University of Michigan Law School. Some

have completed their sentences; others remain incarcerated and are serving sentences of up to life

without parole. All were convicted at trial without the benefit of a defense expert, although the

prosecution presented expert testimony against them. All discovered after their conviction that

there were credible experts who could have assisted the defense at the time of trial, and had their

attorneys consulted with such experts, they may well have been acquitted at trial.

Amici therefore have a strong interest in the outcome of this case, which addresses the

standard for the appointment of defense experts in criminal cases. They file this brief to bring to

the Court’s attention the immense importance of having a consulting defense expert scrutinize

the State’s expert evidence, especially given the ever-expanding role that forensic science plays

in our modern criminal justice system.

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INTRODUCTION

The prosecution built its case against Defendant Johnny Kennedy on the basis of a DNA

cold hit and several sophisticated forms of DNA testing, including STR, Y-STR and complex

mixture analysis of the former. In the face of all that, trial counsel was left to sort out validity,

materiality and credibility all on his own. As Defendant-Appellant’s brief notes, counsel

struggled mightily. But he should not have had to fight alone; the Constitution protects Mr.

Kennedy more than that. “While a criminal trial is not a game in which the participants are

expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed

prisoners to gladiators.” United States v Cronic, 466 US 648, 657; 104 S Ct 2039; 80 L Ed 2d

657 (1984).

It is not good enough for the prosecution to now say that a defense DNA expert would

not have mattered. The same was said in the case of Hattie Tanner, and the unfortunate

consequences of that nearsighted reasoning were finally unraveled just this month, when the

Sixth Circuit Court of Appeals granted habeas relief to Ms. Tanner. As the U.S. Supreme Court

has recognized, “[p]rosecution experts, of course, can sometimes make mistakes,” and “[t]his

threat is minimized when the defense retains a competent expert. . . .” Hinton v Alabama, -- US -

-; 134 S Ct 1081, 1090; 188 L Ed 2d 1 (2014).

In an age when forensic science plays an ever-increasing role at criminal trials, this Court

should use this case to clarify that the due process and fair trial rights of Michigan residents do

not disappear as science progresses. Instead, as the State uses more science, it is logical that

defendants will need to consult with experts more often in order to mount a constitutionally

sufficient defense. The words of Ake v Oklahoma, 470 US 68; 105 S Ct 1087 (1985) remain

controlling constitutional authority. The standard embraced by this Court in People v Tanner,

469 Mich 437; 671 NW2d 728 (2003) (and elsewhere) was wrong when that case was decided

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and must be repudiated. This Court should grant leave to appeal or issue an opinion summarily

reversing the court below.

ARGUMENT

I. The Majority Opinion Below Turned On Two Cases That Were Wrong When Decided, And Have Since Been Completely Repudiated.

Two cases strongly informed the majority opinion of the Court of Appeals, People v

Leonard, 224 Mich App 569; 569 NW2d 663 (1997) and People v Tanner, 469 Mich 437; 671

NW2d 728 (2003). It is important that this Court understand the grave shortcomings of both of

those opinions, and why those precedents are unworthy of being followed.

A. People v Tanner

After Hattie Tanner’s Calhoun County murder conviction was reinstated by this Court (it

had initially been reversed by the Court of Appeals), she sought habeas relief. At oral argument

in the Sixth Circuit, which occurred in May 2017, Judge Raymond Kethledge noted something

crucial about the Ake v Oklahoma claim that Ms. Tanner had made in this Court:

On the Ake claim, she did present a federal claim, and it seems like the Michigan Supreme Court simply did not apply the federal standard. It applied a state nexus test. Why is that entitled to [habeas deference] if they didn’t even apply the U.S. Supreme Court standard? . . . They just applied a state court standard pretty expressly.

Tanner Sixth Circuit Oral Argument at 34:04.1 Tanner was, therefore, a fundamentally flawed

opinion from the outset.2 Though it is widely cited today as the controlling case for determining

whether the defense made an adequate showing to warrant a defense expert, it clearly

sidestepped Ake. And no state court opinion may sidestep federal constitutional authority from

the U.S. Supreme Court when the defendant raises a federal claim. As Defendant-Appellant’s

1 The audio of the oral argument can be found at:

http://www.opn.ca6.uscourts.gov/internet/court_audio/aud1.php (Tanner v Yukins, 5/4/2017). 2 Indeed the claim upon which the Sixth Circuit ultimately granted habeas relief,

sufficiency of evidence, was dismissed by this Court in a mere footnote.

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brief makes clear, Ake is the controlling standard as to when due process requires the

appointment of a defense expert. To the extent that MCL 775.15, as interpreted by Tanner and its

progeny, creates a higher burden on defendants, it should be ignored as irrelevant, as it was never

intentioned to serve in this context in the first place. Def.-App. Brief at 19-24.

Moreover, this Court wrote in Tanner that a defense expert could be denied because the

defendant had failed to make a particularized showing regarding exactly how a defense expert

would be helpful to her. See Tanner, 469 Mich at 443. Judge Kethledge’s reaction to this

requirement at the 2017 oral argument is worth mentioning:

It seems like the showing that [the State has] been saying that she had to make at the time [is to] show that the serologist would be greatly beneficial to her defense. And my question is; she’s trying to get a serologist, how can she make that showing without getting a serologist?

Tanner Oral Arg. at 19:19. A panel of our Court of Appeals recognized the same problem with

the Tanner standard just last year: “We are troubled by the logic that a defendant who admits

technical ignorance and who has no resources from which to acquire technical expertise is asked

to present evidence of what evidence an expert would offer in order to receive public funds to

hire the expert.” People v Agar, 314 Mich App 636, 642; 887 NW2d 662, (aff'd in part,

vacated/reversed in part 500 Mich 891; 886 NW2d 717 (2016)).

As Defendant-Appellant’s brief fully explains, Tanner and the other Michigan cases that

require this dubious cart-before-horse standard are unconstitutional because they create a higher

bar than Ake. In the Tanner case specifically, Judge Kethledge was troubled enough by the

conviction to join the recent 3-0 decision by the Sixth Circuit granting habeas relief. Tanner v

Yukins, -- F3d --, 2017 WL 3481867 (CA 6 August 15, 2017).

B. People v Leonard

The other case, Leonard, fares no better when evaluated under the scrutinizing gaze of

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context and reality. In Leonard, our Court of Appeals reversed a trial court order granting a new

trial, which had been based in part on a finding that the defendant had been denied his due

process rights when no DNA expert was provided to the defense. 224 Mich App at 579-80. First,

the Court of Appeals noted that “Ake did not create a universal rule that an indigent defendant is

entitled to an expert for every scientific procedure.” Id. at 581. Of course, some degree of

materiality must always be shown, but as this Court rightly recognized in its Order for oral

argument on the application in this case, “the majority of courts have concluded that Ake extends

beyond psychiatric experts.” People v Kennedy, 893 NW2d 337 (2017) (internal quotation

omitted).

The Court of Appeals then engaged in an analysis of whether Mr. Leonard had

demonstrated prejudice from the lack of a defense expert, concluding that no prejudice resulted.

Leonard, 224 Mich App at 584-86. This sort of denial of relief is routine of course because most

cases do not in fact warrant relief. However, the Court of Appeals’s opinion in Leonard was

starkly unreasonable, as the federal courts soon made clear.

Once Mr. Leonard filed a habeas petition in the U.S. District Court for the Western

District of Michigan, Magistrate Ellen Carmody and Judge Richard Enslen both concluded that

our Court of Appeals had unreasonably applied federal law in denying relief. Magistrate

Carmody’s opinion, which was adopted by Judge Enslen, is particularly notable for its

unabashed, stinging criticism of our Court of Appeals’s Leonard opinion.

First, responding to the Court of Appeals’s holding that defense counsel’s chemistry

degree made him enough of an expert to properly cross-examine the State’s DNA experts

without the aid of a defense expert, Magistrate Carmody wrote:

The fact that [trial counsel] studied chemistry as an undergraduate approximately 35 years ago says nothing . . . . This is long before the advent of forensic DNA testing. Thus, the conclusion that [counsel] was qualified to adequately challenge

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experienced DNA experts with advanced degrees . . . is just plain silly and reflects poorly upon the Michigan Court of Appeals.

Leonard v Michigan, 287 F Supp 2d 765, 789 (WD Mich), (report and recommendation adopted

256 F Supp 2d 723 (WD Mich 2003)) (emphasis added). Magistrate Carmody then continued:

As for [the court of appeals]’s conclusion that [trial counsel] “exhibited an understanding of the scientific evidence, and effectively and comprehensively cross-examined the prosecution’s experts,” I can only wonder whether I have been presented with a different set of transcripts than those presented to the Michigan Court of Appeals.

Id. (emphasis added). In adopting Magistrate Carmody’s report and recommendation, Judge

Enslen also noted that he found parts of our Court of Appeals’s opinion “disturbing,” 256 F Supp

2d at 728-29, and he adopted Magistrate Carmody’s reasoning in full, id. at n.6.

Amici point out these stark shortcomings in the Tanner and Leonard opinions to make

clear to this Court the immense consequences of unfairly raising the bar for obtaining a defense

expert. Ms. Tanner for example served decades in prison before federal judges noted that she

never should have been convicted in the first place. Amici encourage this Court to distance itself

from such older opinions that emerged in a time before the fallacies of forensic science, and the

nuances of every forensic technique, were fully understood.

As the U.S. Supreme Court has noted, “[p]rosecution experts, of course, can sometimes

make mistakes,” and “[t]his threat is minimized when the defense retains a competent expert. . .

.” Hinton, 134 S Ct at 1090. Indeed, Justice Antonin Scalia, writing for a majority of the Court,

recognized that “serious deficiencies have been found in the forensic evidence used in criminal

trials . . . [and] our system produces erroneous convictions based on discredited forensics.”

Melendez-Diaz v Massachusetts, 557 US 305, 319; 129 S Ct 2527; 174 L Ed 2d 314 (2009).

The protections Due Process affords defendants matter that much more in this advanced

age of forensic science. This Court should act in this case to ensure that Michigan adequately

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protects its citizens when they face prosecution involving scientific evidence, so that none of

them have to endure what Ms. Tanner and Mr. Leonard did.

II. The Court Should Disregard The State’s Argument That A Defense Expert

Would Not Have Mattered In This Case; Such Convenient Hindsight Assessments Have Been Repudiated Time And Again, And Cases Based In Forensic Sciences Are Too Complex To Dismiss The Expert Issue So Flippantly.

The prosecution’s brief in this case states, “Though scientific evidence can be daunting, it

was relatively straightforward in the present case,” arguing that this Court should deny leave to

appeal in this case because the lack of an expert simply did not matter. Prosecution Brief at 16-

20. There are many reasons to doubt such convenient assessments made by the party that did

have the benefit of multiple experts at trial. To accept such an assessment would amount to

simply accepting a statement from the prosecution saying “trust us, this guy is guilty.” But that is

not how our adversarial system works, and the consequences of letting hindsight do the work of

logic in such instances are again unacceptable. As Justice Scalia wrote for a majority of the

Court in Melendez-Diaz, “ ‘neutral scientific testing’ ” is not “as neutral or as reliable as [the

State] suggests. Forensic evidence is not uniquely immune from the risk of manipulation.” 557

U.S. at 318.

A. Forensic Evidence Is Never As Simple As It Seems In Hindsight.

There is a reason that forensic science is subject to a reliability analysis before a jury ever

hears it. See Daubert v Merrell Dow Pharm., Inc, 509 US 579; 113 S Ct 2786, 2791; 125 L Ed

2d 469 (1993); MRE 702. Forensic evidence is unique in that preemptive analyses must be made

that potentially can color the landscape of the entire case. In some cases, it may well be that, had

the defense consulted an independent expert, they may have been able to move the trial court to

greatly limit or even entirely exclude the State’s expert testimony. But if the defense never gets

to consult an expert, then the State’s expert testimony is all that the jury hears, and in hindsight

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the State’s narrative seems like the only possibility. Though the prosecution embraces that

distorting quality of hindsight, this Court should exercise great care because the consequences

can be severe.

In Tanner, the trial court and this Court denied relief in part because, given that no DNA

implicated the defendant, the courts assumed she could not possibly have any need for a DNA

expert. 469 Mich at 443. But there was also biological material in the case that did not belong to

either the victim or the defendant, that the State’s expert stated could not be matched to any other

person. Id. at n.2. Moreover, although the State’s expert stated that diluted blood found at the

scene was consistent with Tanner’s blood (and the blood of millions of other people), the defense

was never able to have an independent expert review this conclusion.

Although this Court discounted the importance of having a defense expert evaluate such

things, Judge Kethledge again noted the dubiousness of so readily sweeping aside a defendant’s

request for an expert. Acknowledging the assistant attorney general’s claim that trial counsel

made some helpful points even without having an expert, Judge Kethledge nevertheless stated

during the 2017 oral argument:

The problem is, we don’t know what other points there might be. What about this ‘two-plus one-plus, two-plus one-minus? [Referring to the specifics of the State’s expert’s serological conclusions.] Who knows? I mean, do we know to this day whether that would be exculpatory, or whether that’s something [the state’s expert] got wrong?

Tanner Oral Arg. at 18:30.

This Court also recently criticized similarly convenient prosecutorial assertions of

immateriality in People v Ackley, 497 Mich 381; 870 NW2d 858 (2015). Rebuking the Court of

Appeals for dismissing the need for a defense expert by pointing to the “sheer multitude of

expert testimony the prosecution had marshaled in support of its position,” this Court wrote:

The prosecution’s voluminous expert testimony made the need for an effective

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response by defense counsel particularly apparent and strong, and it rendered counsel’s failure to offer expert testimony particularly glaring and harmful to the defendant. Because of counsel’s omissions and the resulting absence of suitable expert assistance, the prosecution’s expert testimony appeared uncontested and overwhelming. Contrary to the Court of Appeals, we believe this consequence militates in favor of, rather than against, the defendant’s claim of relief.

497 Mich at 396-97 (emphasis added). Quoting the U.S. Supreme Court, the Agar Court of

Appeals opinion was similarly critical of the prosecution’s assertion that no expert was needed

because the State’s own expert could not possibly be wrong:

In minimizing defendant’s need for an expert, the prosecution argues that an expert would not have helped defendant when its forensic evidence overwhelmingly demonstrated defendant’s guilt. The prosecution’s presentation of an experienced expert witness who tends to inculpate defendant does not demonstrate, by itself, defendant’s guilt. “Prosecution experts, of course, can sometimes make mistakes ... [and] [s]erious deficiencies have been found in the forensic evidence used in criminal trials. . . . This threat is minimized when the defense retains a competent expert . . . ”

Agar, 314 Mich App at 645–46 (quoting Hinton, 134 S Ct at 1090).

B. The DNA Techniques Used In This Case Are Complex And Potentially Flawed.

This Court should now be similarly skeptical of the prosecution’s assertion that the DNA

science as applied to this case was simple and straightforward. DNA cold hits are not nearly the

cut-and-dried evidence of guilt they were once assumed to be. See Guilt by the Numbers: How

fuzzy is the math that makes DNA evidence look so compelling to jurors?, CALIFORNIA LAWYER

MAGAZINE, April 2009, Appendix A (“When you trawl through immense digitized compendiums

of genetic fingerprints, there is an undue risk of false matches.” (internal quotation omitted)).

Indeed, at least one Michigan conviction based on a DNA cold-hit remains the source of

significant national controversy, which was noted in a recent Department of Justice Report on

DNA litigation:

Questions remain about the 1969 murder of a Michigan woman. In December 2003,

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police received a DNA match based on a cold hit of an evidence sample, but the matched person was only 4 years old at the time of the woman’s death. A sample from another convicted offender was tested at the same lab and matched another item of evidence in the case. Police have failed to come up with an explanation for the first match. . . .

See DNA FOR THE DEFENSE BAR, U.S. Dept. of Justice, Office of Justice Programs, June 2012

(emphasis added).3

Next, DNA mixture analysis is not nearly the objective, unquestionable science that

traditional DNA testing has long been assumed to be. In fact, the most common method of

mixture analysis, called “Combined Probability of Inclusion”—which was the method used in

this case, Tr. 7/15/2014 at 43—has been characterized as “ ‘voodoo’ that has erroneously sent

people to prison,” and was recently repudiated in a report by the President’s Council of

Advisors on Science and Technology. See “Subjective DNA Mixture Analysis, Used in

Thousands of Cases, Blasted by WH Panel,” FORENSIC MAGAZINE, September 8, 2016 (emphasis

added).4 See also, Itiel Dror & Greg Hampikian, “Subjectivity and bias in forensic DNA mixture

interpretation,” SCIENCE AND JUSTICE, August 20115 (noting the importance of “acknowledging

the role of the human examiner” to account for subjectivity in mixture analysis).

Finally, as Justice Samuel Alito noted:

DNA testing—even when performed with modern STR technology, and even when performed in perfect accordance with protocols—often fails to provide ‘absolute proof’ of anything. . . . [Various factors] make DNA testing in the forensic context far more subjective than simply reporting test results.

Dist Attorney's Office for Third Judicial Dist v Osborne, 557 US 52, 80–81; 129 S Ct 2308; 174

L Ed 2d 38 (2009) (Alito, J., concurring) (internal quotation omitted). Defendants being tried on

such evidence must be accorded the opportunity to subject the prosecution’s case “to the crucible

3 Available at: https://www.ncjrs.gov/pdffiles1/nij/237975.pdf. 4 Available at: https://www.forensicmag.com/article/2016/09/subjective-dna-mixture-analysis-used-thousands-cases-blasted-wh-panel. 5 Available at: http://www.scienceandjusticejournal.com/article/S1355-0306(11)00096-7/pdf.

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of meaningful adversarial testing.” Cronic, 466 US at 656. To do so, they must be able to obtain

a defense expert (after making a fair initial showing regarding the need for an expert)—no matter

how foregone a conclusion the prosecution believes the case to be. After all, another credible

expert may well see things differently, and defendants must be accorded the opportunity to bring

such information to the jury’s attention.

III. The State’s Contention That The Particular Expert In This Case Was Not An

Expert Is A Red Herring That Only Serves To Distract From The Real Issues In The Case.

The State urges this Court to deny leave in this case because the particular DNA expert

that counsel proposed to use, Brian Zubel, is himself an attorney. Pros. Brief at 3. Because Mr.

Zubel happens to also hold a JD, the State argues that the request for a defense expert was really

a request for co-counsel. Id. The majority of the State’s brief turns on this point, though the point

lacks any merit whatsoever. At no point did trial counsel indicate he was requesting appointment

of co-counsel (because he was doing no such thing). He made clear that he sought Mr. Zubel for

his special knowledge regarding DNA.

As trial counsel’s motion for appointment of an expert makes clear, Mr. Zubel is in fact

an expert in DNA science, and has been admitted as a DNA expert numerous times. Appendix A

to Def. App. Brief at ¶ 8. He holds a science degree and is a member of the American Academy

of Forensic Sciences. CV of Brian Zubel (included in Appendix A to Defendant Appellant’s

brief). Without a doubt, Mr. Zubel is a scientific expert with whom defense counsel had the right

to consult.

The fact that Mr. Zubel also holds a JD, has practiced law and could advise in matters of

how to litigate DNA issues changes nothing about his qualifications as an expert in DNA

science. These are simply additional things; they do not take away from his scientific

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qualifications. Experts often assist counsel in many ways other than testifying. They may help

counsel prepare cross-examination questions, and may even sit at with counsel in court to advise

them on how to proceed after listening to the State’s experts in real time. The prosecution had the

advantage of several such experts in this case. If the defense wanted Mr. Zubel, the fact that he

also holds a JD certainly should have no bearing on anything.

CONCLUSION

For the foregoing reasons, Amici respectfully request that this Court either grant leave to

appeal, or issue a summary opinion reversing the decision below. Amici ask the Court to make

clear that the right to consult with a defense expert is crucial in today’s world of forensic

science-based litigation, and to the extent that MCL 775.15, as interpreted by Tanner and its

progeny, raises the standard for obtaining an expert beyond what Ake intended, it must be

ignored and a more reasonable and constitutional standard must be adopted.

Respectfully Submitted, MICHIGAN INNOCENCE CLINIC s/ Imran J. Syed (P75415) s/David A. Moran (P45353) Counsel for Amici Curiae Counsel for Amici Curiae s/Rebecca L. Hahn (80555) Counsel for Amici Curiae Dated: August 30, 2017

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APPENDIX A

“Guilt by the Numbers: How fuzzy is the math that

makes DNA evidence look so compelling to jurors?”

California Lawyer Magazine,

April 2009

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Guilt by the Numbers

http://www.callawyer.com/clstory.cfm?eid=900572&ref=updates 1/5

Photolibrary (foreground): Paul Hardy/Corbis

(background)

Comment

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 Reprint

ORIGINAL ARTICLE

Guilt by the NumbersApril 2009

BY EDWARD HUMES

Every Sunday night in the state attorney general's DNA lab in

Richmond, when the offices are silent and the computers idle, an

automated matching program switches on and shuffles through

more than a million DNA profiles of known felons, and of

unidentified crime-scene samples. The next morning, analysts

arrive at work to find a list of potential matches - up to 50. In an

average week, about nine of those will be found to be definitive

matches.

This is how, one summer Sunday night nearly four years ago, a 71-

year-old Stockton man in a wheelchair was linked to the 1972 rape

and murder of Diana Sylvester, a young nurse in San Francisco.

The investigators called it a cold hit because the suspect, John

Puckett, was never implicated until the database-matching

software spat out his name. No witnesses, no confessions, no

footprints or fingerprints tied Puckett to the crime. (Curiously, in

1972 an eyewitness identified a different suspect, but that suspect

was never prosecuted due to a lack of corroborating evidence. He

died six years later.) Still, Puckett was no Boy Scout. He had

pleaded guilty to two counts of rape and a sexual assault in 1977

and was imprisoned until 1985. Which is why the state had

obtained his DNA profile in the first place.

During Puckett's San Francisco trial last January, the

prosecution's expert estimated that the chances of a coincidental

match between the defendant's DNA and the biological evidence

found at the crime scene were 1 in 1.1 million. This, no doubt, gave

the jurors a compelling reason to convict Puckett of the killing and

send him to prison for at least seven years - if not the rest of his

life.

What the jurors didn't know, though, and what the judge didn't think they needed to know, is that

there's another way to run the numbers. And according to that math, the odds of a coincidental match

in Puckett's case are a whopping 1 in 3.

Now on appeal, Puckett, along with similar cases across the country, is raising new questions and

concerns over how prosecutors present DNA evidence to jurors (People v. Puckett, No. A121368,Cal. Ct.

App., 1st Dist., May 1, 2008).

When you trawl through immense digitized compendiums of genetic fingerprints, "there is an undue

risk of false matches," says former Food and Drug commissioner Donald Kennedy, who contributed to a

recently released bombshell of a study from the National Research Council that raised serious questions

about how forensic labs are administered. The science, Kennedy adds, "is being shut out of court." And

even experts who say the danger of false matches is being exaggerated acknowledge that as offender

databases continue to grow, the chances of convicting the innocent will only increase.

How fuzzy is the math that makes DNA evidence look so compelling to jurors?

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So, which is it: 1 in a million, or 1 in 3? Both calculations in the Puckett case, are, in fact, accurate. The

problem is that they answer different questions. Perhaps the easiest way to explain what's going on here

is to describe a classic statistical puzzle known as the "birthday problem."

First ask yourself this: What are the odds that, in any roomful of people, someone chosen at random

will share your birthday? Simple answer: 1 in 365. Pretty much everybody gets that one.

Now consider another seemingly simple question: How many people have to occupy the room to make

it likely that at least two of them share a birthday? The not-so-obvious answer is 23. That's all you need

to create a better-than-even chance of finding a birthday match.

Furthermore, you don't need to squeeze many more people into that room to make a match a near

certainty: With just 57, in fact, the odds of a match exceed 99 percent. The same counterintuitive math

applies to DNA database searches as well.

A couple of decades back though, before there were big databases to tap into, this wasn't an issue: At the

time, DNA evidence was used almost exclusively to verify existing suspicions about known suspects,

which made the math a lot less troublesome. And even today this is the most common use of such

evidence.

The analysis of such "confirmation cases" begins with a comparison of genetic markers at particular

locations on the DNA molecules, referred to as loci. If enough of the loci from the suspect's DNA line up

with those from the DNA found at the crime scene (and if none are found to be different), a match is

declared. Once that happens, a statistic is generated that shows how rare (or common) the matched

genetic profile is in the general population. Statisticians call this the "random match probability"(RMP),

and it is often a very small number, which can be very helpful to a prosecutor trying to win a conviction.

In the birthday problem, the RMP is 1 out of 365 (.00274), just as in Puckett's case it's 1 in 1.1 million

(.00001). And for many DNA matches it's 1 in many billions. These numbers make it seem extremely

unlikely that a particular genetic profile could belong to more than one individual. Therefore, everyone

agrees that the RMP is the proper statistic to use in a DNA confirmationmatch case. It answers the

question: How rare is the identified genetic profile in the general population?

But in cold-hit cases, where the hunt is for matches among hundreds of thousands of DNA profiles

rather than for a specific suspect, many statisticians say that the RMP is the wrong statistic to use.

Instead, they want to know: What is the likelihood that the database will spit out an innocent person's

name?

As in the birthday problem, the odds of finding a match in a room - or a database - full of people are

much greater than the odds of selecting one person at random off the street who will match a certain

birthday - or DNA profile. The odds of a coincidental match - a number called the database match

probability - can be much greater, as well.

So far, though, almost every judge in the country who has been presented with this mathematical

paradox has dismissed it as a serious problem. As a California court of appeal observed in People v.Johnson (139 Cal. App. 4th 1135 (2006)), "[T]he database is not on trial. Only the defendant is."

This turns the issue into one of legal relevancy rather than science, and as such, judges do not have to go

through any lengthy Kelly­Frye hearings about scientific validity to determine where the experts stand

on the matter. But the experts themselves found the reasons given in such rulings asJohnson to be

highly flawed. In fact, soon after the Johnson decision came out, the California Supreme Court received

a letter, signed by 25 leading statisticians , arguing that it was dead wrong.

"The fact that a suspect is first identified by searching a database unquestionably changes the likelihood

of the matching being coincidental," the letter asserted. And though various schools of statistical

thought differ on the degree of likelihood of false matches, the letter added, "We all agree that the fact

that the suspect was first identified in a DNA database search must be taken into account."

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After the jurors in Puckett's trial began their deliberations, Superior Court Judge Jerome Benson - who

cited the Johnson decision in his initial ruling not to share with jurors the 1-in-3 estimate - apparently

had a change of heart and asked both sides if they would stipulate to informing jurors of thi s alternate

estimate. But the judge's request went nowhere, because the lawyers couldn't agree on the wording of

the stipulation.

Deputy Public Defender Bicka Barlow, who represented Puckett, happens to be trained as a molecular

biologist. "If a full hearing on the science was held, database matches might not be used at all," she

contends, "because there is no agreement in the scientific community. ... On this issue, the courts in

California are broken."

But the math isn't the only thing that concerns Barlow. She's also troubled by the unfettered access that

prosecutors have to offender databases, while the defense side is effectively prevented from using them

to evaluate the state's methodology.

"In many ways, it is a unique situation," she says. "There is really no other type of evidence in which the

prosecution is permitted to do this, to essentially say: 'Trust us.' "

Barlow's interest was heightened several years ago, when she got wind of a presentation that a

technician from Arizona's state DNA crime lab made in 2001 at a forensics conference. The technician

had done something no one else had tried before, or at least revealed publicly: She had run DNA

comparisons of all the offenders in the state database and was shocked to find approximately 90

coincidental matches of profiles that were identical at nine and even ten loci. At the time, such matches

were considered exceedingly rare, yet Arizona's then relatively small database of 60,000 offenders

contained scores of them.

In Puckett's case, the DNA match extended to only five and a half loci, an unusually low-grade match

but the best that could be developed from the degraded biological samples left over from 1972.

Barlow subpoenaed the Arizona database records, but she was not permitted to introduce them

inPuckett or any other case she has worked on that involved DNA evidence. Meanwhile, the FBI,

obviously displeased by the Arizona technician's research, began threatening sanctions against crime

labs that shared such information with anyone outside of law enforcement. The agency even suggested

that crime labs could be barred from accessing the FBI's own national DNA database, thought to be the

largest in the world, with nearly 6 million profiles.

When Barlow attempted to gain access to basic information about California's DNA database, state

Deputy Attorney General Michael Chamberlain echoed the FBI's concerns. He argued in court that such

disclosures would have dire consequences, violating offenders' statutory privacy protections and

overloading the state's computers and DNA workforce. Chamberlain has used the same arguments with

success to fight requests by other defense lawyers who have tried to follow Barlow's lead.

"The penal code ... unequivocally states that disclosure has to be strictly controlled and should not be

disseminated outside the context of a particular criminal case," Chamberlain says. "That disclosure bar

is crucial in maintaining the constitutionality of the statute. Big DNA databases bring with them big

fears - from a privacy perspective, genetic surveillance fears. ... In response, the statute included strict

nondisclosure restrictions ... that the information would not be disclosed except to law enforcement,

and only when there is a demonstrated need."

Chamberlain also points out that when the Legislature was authorizing creation of the state's DNA

database, it was the defense bar that most strenuously objected, on the ground that it represented a

threat to privacy. "Now they've done a 180-degree turn, and they want information on matches not only

on individual clients but also on all the profiles in the database," he says.

Barred from studying the actual incidence of coincidental matches in the California database - and with

the state showing no inclination to conduct it's own Arizona-style study - Barlow has since turned to

prominent statisticians and DNA researchers in an effort to estimate the likelihood of a false match.

These experts have told her they can predict, even without examining the data, that coincidental

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matches are much more common than judges and juries seem to realize, due to the sheer size of the

DNA databases. They point to a 1996 National Research Council study - requested, and later ignored, by

the FBI - concluding that the database match probability, not the random match probability, should be

used to explain the significance of a cold-hit DNA match. The report further recommends calculating

this number by taking the random match probability for the suspect's profile and multiplying it by the

number of offenders in the database searched. This is how the 1-in-3 number was produced in

the Puckett case.

Should judges have to choose between one method of estimation and another? Edward Blake, for one,

doesn't think so. The nationally recognized pioneer in forensic DNA technology, who runs Forensic

Science Associates in Richmond, California, argues that both the database match frequency and the

random match frequency should be presented to juries "with their separate and distinct meanings." But

he does agree with Barlow that excluding the former statistic in Puckettwas a "travesty."

The database probabilities are always important in cold-hit cases, Blake notes, because "the defendant

is identified not through any investigative lead but simply because his name pops up in a search.

Keeping that information from the jury is dishonest. It should be introduced and explained in context."

Why, then, the resistance? Blake blames it on the FBI's obsession with preserving DNA database

secrecy, and the willingness of state court judges and prosecutors to go along with what, he says,

amounts to an FBI "power grab." "The data should be available to everyone," Blake declares. "It's a

simple matter to strip out identifying information to address privacy concerns. So what are they hiding?

Nothing good-I can tell you that."

UC Irvine's William C. Thompson, a DNA evidence expert and member of the California Crime Lab

Review Task Force, agrees that there is "a disturbing lack of transparency" surrounding the

government's DNA databases. Thompson, who was instrumental in exposing serious problems in the

now-defunct DNA lab of the Houston Police Department, says more transparency is essential to keeping

the system fair and honest, and to preventing innocent people from being sent to prison.

Even Deputy AG Chamberlain, who considers this controversy overblown, concedes that letting juries

know there are alternative calculations to consider may be appropriate in some cases. Moreover, the

California Supreme Court reached the same conclusion in a brief note last year in another cold-hit

case, People v. Nelson (43 Cal. 4th 1242 (2008)).

In the final analysis, the point may not be that difficult even for prosecutors to concede. After all, most

DNA cases these days involve matches at 10 loci or more, with 13 considered foolproof, producing

RMPs in the range of 1 in tens or hundreds of billions. As Blake observes, multiplying such odds by the

number of profiles in a database would dilute the power of the evidence a bit, but the chance of a

coincidental match would still be fantastically small. Thus, in most instances, there will be little

difference between the two calculations.

Still, as the Puckett case shows, there are times when the crime-scene evidence is degraded or scant, so

that fewer loci can be detected for comparisons. And as the number of loci decreases, the probability of

an accurate match decreases dramatically.

In addition, Barlow suspects that once access to the state database information is granted, it will be

clear that the statistical risk of coincidental matches is even greater than current estimates suggest. "I'm

a scientist before a lawyer," she says. "Good science requires transparency, and we have none. I find this

very disturbing."

Barlow is not alone. The National Research Council, in its groundbreaking report critiquing the use of

technology to determine the guilt or innocence of suspects, in February recommended taking all

forensic laboratories out of the administrative control of both law enforcement and prosecutors.

Meanwhile, in January, California greatly accelerated the growth of its Richmond database when it

started to add DNA profiles not only of anyone convicted of a felony but also of anyone arrested for one.

This, it is estimated, will soon expand the database by 35,000 new profiles a month, which by 2012

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would triple its size. With numbers like these, the case for making the science behind cold-hit DNA

matches more transparent to jurors is bound to get stronger.

Edward Humes, based in Southern California, is a Pulitzer Prize­winning journalist and author of tennonfiction books.

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