Judge Dwyer Issues Written Decision in Landmark DNA case Won by Legal Aid’s DNA Unit
WEDNESDAY, JULY 15, 2015

After about two and a half years of litigation, including live testimony from 11 scientists, Acting Brooklyn Supreme Court Justice Mark Dwyer decided not to admit so-called "lower copy number" or "high-sensitivity" analysis. Dwyer said that the New York Medical Examiner is the only public laboratory in the United States that employs the technique in criminal cases.

Lawyers in Legal Aid’s DNA Unit litigated the admissibility of LCN and FST evidence in a Frye hearing. Some of the world's most famous forensic scientists testified for the defense. In the end, the Court held that the scientific community is unable to agree that evidence produced by the high sensitiviy and FST methods reliable and admissible. People v Collins, 2015 NY Slip Op 25227

"Many other trial courts currently face the question of whether these controversial methods should be admitted at trial," Jessica Goldthwaite said in a joint statement with Clinton Hughes, Susan Friedman, Staff Attorneys in Legal Aid's DNA Unit, and Daniel Ades, a Staff Attorney in the Brooklyn Criminal Defense office.

"These courts should follow Judge Dwyer's carefully reasoned opinion because it is based on the most recent and extensive record and evinces a deep understanding of the scientific testimony he heard during the Collins/Peaks hearing."

 




The New York Law Journal
Judge Rejects Medical Examiner's DNA Technique
By Andrew Keshner
July 15, 2015

A type of DNA testing done by the New York City's Office of the Chief Medical Examiner for almost 10 years does not have enough acceptance in the relevant scientific community to make its findings admissible, a judge has decided.

After about two and a half years of litigation, including live testimony from 11 scientists, Acting Brooklyn Supreme Court Justice Mark Dwyer decided not to admit so-called "lower copy number" or "high-sensitivity" analysis. Dwyer said that the New York Medical Examiner is the only public laboratory in the United States that employs the technique in criminal cases.

After presiding over hearings for two separate cases that were joined for purposes of a Frye hearing, Dwyer also refused to admit evidence produced by a second, newer technique, called "Forensic Statistical Tool." He ruled from the bench in November 2014 and issued a written decision on July 2 explaining his reasoning.

Under Frye v. United States , 293 F. 1013, scientific analysis is admissible "only if the relevant scientific community generally (though not necessarily unanimously) considers those methods to be reliable," Dwyer said.

In the matter before him, People v. Collins , 8077/2010, Dwyer acknowledged the Brooklyn District Attorney's arguments that the medical examiner's low copy number or high sensitivity DNA analysis had been described in both peer-reviewed articles and discussed at scientific gatherings.

"But this court cannot accept the thesis that publication and discussions equate to general acceptance. Not only the impressive defense witnesses indicate otherwise; so too do the many peer-reviewed articles submitted as defense exhibits which question [the Office of the Chief Medical Examiner's] procedures," Dwyer said.

Likewise, the judge, a former top-ranking Manhattan prosecutor and immediate past chair of the New York State Bar Association's Criminal Justice Section, said the record before him showed the forensic statistical tool also"is not generally accepted in the DNA scientific community."

The Office of the Chief Medical Examiner, a division of Department of Health and Mental Hygiene, said last week that it stood behind its methods.

"We are pleased that all other courts in New York City that have considered it have upheld its validity," the office said in a statement.

Dr. Jason Graham, first deputy chief medical examiner, said in a statement that the office "will not change our current scientific testing practices based upon the Dwyer ruling."

Dwyer's decision broke from other rulings on the admissibility of evidence generated by the two techniques, making him the first state judge known to preclude such evidence, according to Jessica Goldthwaite, a Legal Aid Society's DNA Unit staff attorney, who was a member of the defense.

Dwyer said judges in a Frye matter are advised to count the votes from scientists and not try to verify the scientific conclusions.

"With all respect to the authors of those decisions, this court has counted the scientists' votes differently, and disagrees with their conclusions," he said.

While Dwyer's written decision was pending, Acting Brooklyn Supreme Court Justice Michael Gary in January orally precluded low copy number testing in one case, but Acting Bronx Supreme Court Justice Ralph Fabrizio in April refused to exclude forensic statistical tool analysis in another matter.

Dwyer noted the FBI laboratory refuses to do low-copy analysis, and CODIS, the national DNA database run by the FBI, will not upload profiles created with the technique.

According to court papers, the medical examiner's office has performed about 7,500 low-copy tests since 2005, leading to trial testimony in approximately 250 cases including matters in the five city boroughs and the Southern and Eastern districts.

The statistical analysis tool, first used in 2011, has led to trial testimony in 50 cases in the state and federal courts, the office said.

One of the cases before Dwyer had to do with low-copy number analysis and forensic statistical tool calculations on DNA swabs of handlebars on a bicycle found at a 2010 shooting scene.

Jaquon Collins pleaded guilty in March to second-degree assault and was sentenced to six years.

Another case involved forensic statistical tool analysis of standard DNA test results on a bra in an alleged 2010 sexual assault.

Andrew Peaks is awaiting trial in People v. Andrew Peaks, 7689/2010, scheduled for next month.

Brooklyn prosecutors argued the medical examiner used conservative interpretations when using the lower copy number analysis.

They said the technique has been approved by the DNA subcommittee of the New York State Forensic Science Commission. Subcommittee conclusions are binding on the commission.

But the defense called Dr. Bruce Budowle, who Dwyer said was "one of the original architects" of the national DNA database.

Budowle acknowledged low copy number analysis had some value, but he also pointed out issues with the technique.

Dwyer said he questioned whether criticism on low copy number analysis was a matter on the weight of the evidence, which was for jurors to decide.

But he said that thought was "trumped by Frye."

"The products of polygraph technology and of facial recognition technology similarly can sometimes have value, but evidence produced by those technologies is not generally accepted as reliable by the relevant scientific communities and so cannot be admitted in trials. The same should be true, at least at this time" for low copy number analysis, he said.

Dwyer also took up a defense complaint that the forensic statistical tool was a "black box" which was inaccessible to defense experts.

Though prosecutors said the formula was conservative, Dwyer said there were no studies showing the tool "consistently under-estimates the proper ratio, especially when an innocent suspect is thought to be a contributor."

"Many other trial courts currently face the question of whether these controversial methods should be admitted at trial," Goldthwaite said in a joint statement with Clinton Hughes, Susan Friedman, staff attorneys in Legal Aid's DNA Unit, and Daniel Ades, a staff attorney in the Brooklyn Criminal Defense office.

"These courts should follow Judge Dwyer's carefully reasoned opinion because it is based on the most recent and extensive record and evinces a deep understanding of the scientific testimony he heard during the Collins/Peaks hearing."

Barry Scheck, a member of the New York State Forensic Science Commission and a co-director of the Innocence Project, said Dwyer's decision was "well reasoned and welcome" and his opinion "carries enormous weight."

Scheck said he has been concerned about high sensitivity DNA testing for several years and publicly expressed his concerns at forensic science meetings.

He also noted "the Innocence Project has recently taken the position that it does not want OCME to use low copy number testing on any of its cases."

In a statement, Brooklyn District Attorney spokesman Oren Yaniv said, "Judge Dwyer is a respected jurist, but we respectfully disagree with his finding. In fact, recent court rulings in concurrent jurisdictions have affirmed the value of these two forensic tools that have been instrumental in prosecuting homicides and sexual assaults, and have helped exonerate people who have been wrongfully convicted."

He noted the Collins case that resulting in a guilty plea would not be appealed. Yaniv said the ruling, as connected to the Peaks matter, could not be appealed because it was an evidentiary ruling precluding prosecution evidence and was not appealable by statute.

Brooklyn Assistant District Attorneys Elizabeth Doerfler and Alfred DeInginess appeared for the prosecution, along with Kyle Reeves, a Staten Island prosecutor who was a Brooklyn assistant district attorney when the proceedings began.