PASSAGE OF THE DAY: "At a
hearing on March 28, San Diego Superior Court Judge Charles G. Rogers
ruled that Speredelozzi should get the information he needs from
prosecutors, though he delayed enforcing that for a month to allow
prosecutors to appeal. The judge said the concerns of Environmental
Science and Research or ESR — the makers of STRmix, which is a joint
venture between the governments of New Zealand and the State of South
Australia — that its proprietary information could be exposed in court,
don’t outweigh Dominguez’s rights. “Why should Mr. Speredelozzi’s
hands be tied in defense of his client?” Rogers asked. He said terms of
the Non-Disclosure Agreement Speredelozzi would have to sign could
prohibit him or his expert witnesses from revealing how the program
works and their critiques of it in open court at a trial."
The tool is especially useful for DNA evidence that has two or more contributors to it — known as mixture samples. Analyzing these samples has been a controversy among scientists for years, leading to concerns that interpretations by scientists can be error-prone or rely too much on subjective determinations. In 2010, a leading forensic science group recommended changes to interpretation guidelines that made DNA analysis that previously would have included a defendant to now be deemed inconclusive. The probabilistic genotyping software is heralded as a solution, sorting out the different DNA contributors in a sample with greater precision. Dominguez’s case history reflects how using DNA-mixture evidence has changed. At his 2010 trial he was included as a contributor to a blood mixture found on the gloves, though at low levels and under guidelines that were soon changed. Under the revised guidelines, that same evidence was deemed inconclusive. That change was a key factor in Speredelozzi getting Dominguez’s conviction thrown out last year and earning him a new trial. In preparation for that trial, the San Diego crime lab again tested the evidence, this time using the STRmix tool. Court papers said those tests showed the likelihood that Dominguez’s DNA is in the blood on the gloves is 318 billion times more likely than not in one sample, and 4.16 billion times more likely than not in a second. Speredelozzi wants his experts to see how that conclusion was reached by examining the software. At the hearing he likened the process to a “black box,” where evidence goes in, a conclusion comes out — but what happens in between can’t be known. “The prosecution is saying, sorry, it’s a secret — we can’t tell you,” he told Rogers. In an email response to questions, Bjorn Sutherland of ESR said the company makes the software and code available to defense lawyers on a time-limited basis. (Speredelozzi argued that the time limit is inadequate for analysis.) Sutherland also said that income from the sale of the program “is applied to activities that underpin the criminal justice system” and publicly disclosing how the program works would injure the company and imperil those revenues. “Public disclosure of STRmix source code or other proprietary information has the potential to cause irreparable damage to these efforts,” he said. “Doing so could destroy our ability to undertake development, training, implementation and validation support, defense training, and court appearances.” District Attorney spokesman Steve Walker said the office plans to appeal Rogers’ ruling. He said the materials the defense wants are the property of a private company that the DA’s office has no control over, and noted that ESR is willing to provide the information to Speredelozzi. He said the appeal will be “challenging (Judge Rogers’) ruling that we possess and can distribute the company’s intellectual property without limitation.” In his ruling, however, Rogers determined that ESR was part of the “prosecution team,” a designation that if it stands would mean the computer program is information the prosecutors have control of and would have to turn over. Defense lawyers’ access to the genotyping programs has been an issue in cases around the country. In a 2012 murder case, a Los Angeles judge ruled another maker, TrueAllele, had to produce its code for defense examination, though under a court protective order limiting who could see it. That ruling was overturned on appeal, when the appeals court concluded the reasons for accessing the code did not outweigh the trade secret protections, and the code was not needed to understand how reliable the program is. Suzanna Ryan, a Carlsbad-based forensic consultant who has worked on the Dominguez case, said defendants need to know if the program works as boosters say it does. She said the genotyping tool was an issue in a New York state case, where a DNA sample was interpreted using STRmix and included the defendant. But another test done with TrueAllele said the results were inconclusive. “You need to know how the program is working,” she said,” and in order to do that you need an expert to look at it who can say whether or not what it is supposed to be doing, it is doing.”"
The entire story can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
