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United States v. Gissantaner

United States District Court, W.D. Michigan, Southern Division

October 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL GISSANTANER, Defendant.

          OPINION

          JANET T. NEFF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION ...................................................................................................................... 3

         II. DNA ANALYTICAL PROCESS ............................................................................................. 8

         A. PCR and Electrophoresis ...................................................................................................... 9

         B. Probabilistic Genotyping ..................................................................................................... 10

         C. STRmix™ Software ............................................................................................................ 12

         D. Guidelines, Standards and Government Review ................................................................. 16

         III. MSP DNA ANALYSIS IN THIS CASE ............................................................................... 22

         IV. DAUBERT STANDARD ....................................................................................................... 25

         V. ANALYSIS ............................................................................................................................. 27

         (1) Whether the theory or technique can be, and has been, tested ................................... 30

         (2) Whether the theory or technique has been subjected to peer review and publication 35

         (3) Known or potential rate of error of the particular scientific technique or theory and the existence and maintenance of standards controlling the technique's operation ............. 37

         (4) Whether the theory or technique has general acceptance in the relevant scientific community .................... 41

         VI. CONCLUSION ...................................................................................................................... 45

         The heart of this opinion for decisional purposes is found in Sections III, IV, and V. The preceding sections provide an essential scientific context for the decisional process. A Glossary of key terms is appended as Attachment 1 for reference.

         The Case

         Defendant Daniel Gissantaner is charged with a single offense of felon in possession of a firearm, subject to a penalty of not less than 15 years' and up to life imprisonment; not more than a $250, 000 fine; and supervised release of not more than 5 years. The case against Gissantaner rests fundamentally, if not entirely, on a small amount of “touch” DNA taken from a gun in a locked cedar chest during a search of Gissantaner's house on September 25, 2015, following a dispute with his neighbors over parking in a shared driveway, and police officers' response to the neighbor's 911 call. The locked chest containing the gun belonged to Gissantaner's wife's daughter's boyfriend, Cory Patton. Patton, also a convicted felon, had the only key to the locked chest, which was located in Patton's upstairs bedroom and opened by him at police officers' request during the search. According to the various police reports, Patton gave conflicting statements about the gun, stating that he heard an argument, went outside, and took the gun away from Gissantaner, but also stating that he never saw Gissantaner with the gun, he found it on the kitchen counter after the argument, and then placed it in the chest.

         The evidentiary handling of the gun is far from pristine. It appears that the gun was moved or handled by at least one police officer before it was taken into evidence. There are also some unexplained delays and unknown whereabouts of the gun between the time it was taken from Gissantaner's house and the submission to the Michigan State Police (MSP) lab for analysis.

         Ultimately, a touch-DNA analysis by the MSP from a swab of the gun determined that three individuals contributed to the DNA found on the gun. The DNA analysis produced a report based on STRmix™[1] probabilistic genotyping software that Gissantaner was a 7% minor contributor of the DNA on the gun, and that it was at least 49 million times more likely that the DNA was that of Gissantaner and two unrelated, unknown individuals, than that the DNA was that of three unrelated, unknown contributors.[2]

         Gissantaner filed a motion to exclude the DNA evidence, challenging the admission of the STRmix™ DNA report by the Government. The matter is before the Court for decision after the arduous task placed on the parties, counsel, the witnesses, and court-appointed experts to explain and examine the intricacies of DNA analysis generally, and the use of the STRmix™ probabilistic genotyping software specifically, in the context of the evidence in this case.

         I. INTRODUCTION

         This Court is not the first to grapple with the difficult question of the admissibility of probabilistic genotyping DNA evidence. While a number of courts have found the evidence admissible, under varying standards and circumstances, others have not. See, e.g., People v. Collins, 15 N.Y.S.3d 564, 566 (N.Y. Sup. Ct. 2015). This Court now falls into the latter category, and concludes that the probabilistic genotyping evidence in this case does not pass scrutiny under the Daubert[3] lens.

         In the initial two-day Daubert hearing, May 23-24, 2018, the Court heard testimony from a number of well-informed expert and lay witnesses, including for the Government-Dr. John Buckleton, co-developer of STRmix™, ESR, Crown Research Institute, government of New Zealand; Jeffrey Nye, assistant director, Forensic Science Division, MSP; and Amber Smith, forensic scientist, MSP Lansing Laboratory Biology DNA Unit; and for the defense-Stephen Lund, mathematical statistician, National Institute of Standards and Technology (NIST), U.S. Department of Commerce; and Nathan Adams, systems engineer, Forensic Bioinformatics.

         Finding that the initial briefing, testimony and evidence lacked sufficient clarity and completeness to resolve the complex issues presented, the Court solicited recommendations from the parties for a court-appointed expert to examine the issues and provide an independent opinion. The Court ultimately appointed two experts, Dr. Michael Coble and Dr. Dan E. Krane, both well-recognized for their specialized expertise and contributions to the advancing field of probabilistic genotyping in forensic DNA analysis in the U.S. Following written reports from each court-appointed expert and a day of testimony from the experts in a continued Daubert hearing on July 8, 2019, the Court provided the parties a last opportunity for limited supplemental briefing. With the benefit of a continually supplemented record over a year-and-a-half's time, comes the disadvantage of new insights, arguments, publications, and clarifications amid a rapidly changing technology base. The Court now has the benefit of a more complete, but voluminous, record on which it proceeds to rule.

         As the court in Collins aptly observed in addressing the admissibility of complex-mixture DNA analysis, “judges are, far and away, not the people best qualified to explain science, ” particularly when novel scientific techniques are at issue. Collins, 15 N.Y.S.3d at 566. Nor does the manner of admitting testimony and evidence in a Daubert hearing lend itself to a methodical explanation of DNA science. “But courts are bound to do their best.” Id. Because a fundamental understanding of the science and technology is critical for the Daubert analysis in this case, the Court endeavors to set out a scientific and technological foundation in conjunction with its decision.

         DNA Analysis-

         “Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms.” 4 Mod. Sci. Evidence § 30:1 (2018-2019 ed.), The Law and Science of Expert Testimony, DNA Typing, Introduction to basic principles (footnotes omitted). Despite its universal application in crime investigation, the science of forensic DNA analysis is relatively young.

         In late 1984, Geneticist Sir Alec Jeffreys developed a DNA profiling process, “DNA typing, ” while working in the Department of Genetics at the University of Leicester in the United Kingdom. 36 Am. Jur. Proof of Facts 3d Proof of Criminal Identity or Paternity Through Polymerase Chain Reaction (PCR) Testing § 5, n.57 (Sept. 2019 update) (citing Jeffreys et al., Individual Specific “Fingerprints” of Human DNA, 316 Nature 76 (1985)); 97 Am. Jur. Proof of Facts 3d Identification of Seminal Fluids § 10 (Sept. 2019 update). The first widely noted use of DNA analysis in a criminal case occurred in Britain two years later in 1986, demonstrating the “unique power of DNA typing to exonerate, as well as incriminate, ” when Scotland Yard called upon Dr. Jeffreys to assist in the investigation of two brutal rape and strangulation cases:

The murders occurred in two neighboring villages in Narborough, England. Police soon focused on a suspect, Richard Buckland, who provided a graphic confession after several hours of interrogation. In it, he described details of the crime that police proclaimed were only known to the killer.
In order to solidify the case against Buckland, police submitted semen samples from both crimes to Jeffreys, who had developed a process he called “DNA fingerprinting, ” for analysis and comparison against Buckland's blood sample. Jeffrey's conclusion, which stunned the police and the community, was that Buckland was not the perpetrator. The DNA tests confirmed that both girls had been raped by the same perpetrator, but Buckland was not that man. Buckland became the first person in the world to be cleared through the use of DNA tests. When their prime suspect was excluded from consideration, police embarked upon a campaign of “voluntary” blood testing, obtaining samples from over 5000 men in the environs of the crime. The results of this first-reported DNA dragnet did not identify the rapist. However, it did lead the police to Colin Pitchfork. A coworker revealed that Pitchfork had persuaded him to provide a sample in his stead. The ruse was eventually uncovered and Pitchfork was arrested in 1987. After his arrest, Pitchfork confessed to the crimes and subsequent DNA tests linked him to the crimes.

Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 Fordham L. Rev. 1453, 1473 n.123 (2007) (citing Henry C. Lee & Frank Tirnady, Blood Evidence: How DNA Is Revolutionizing the Way We Solve Crimes, 1-2 (2003) and Joseph Wambaugh, The Blooding (1989)).

         Why DNA Analysis Works-

         Although 99.9% of the DNA sequences in human cells are the same between any two individuals, enough of the DNA is different that it is possible to distinguish one individual from another (other than identical twins). David H. Kaye & George Sansabaugh, Reference Guide on DNA Identification Evidence, Reference Manual on Scientific Evidence, 136-137 (Federal Judicial Center, 3d ed. 2011). This remaining 0.1% variation makes each person genetically unique. Id. at 137.

         Modern DNA profiling uses repetitive sequences that are highly variable, called short tandem repeats (STRs), at specific locations, “loci, ” of the human genome. In general terms, by identifying the STRs at agreed upon “loci, ” forensic scientists are able to develop DNA profiles for forensic comparison. The DNA profile is comprised of the particular sequences that an individual has at each locus, each of which is called an “allele.” STRs are useful features for comparison because while every person has STRs at the loci, there is variation in the number of repeats in a given STR for each person (that is, different people can have different alleles), and the range of variation is known by population studies (Govt Br., ECF No. 52 at PageID.1742; citation omitted).

         By analyzing a sufficiently large number of loci, a unique DNA profile is determined, such that it is highly improbable that any two people who are not identical twins would have the exact same DNA profile (Govt Br., ECF No. 52 at PageID.1742). Each forensic lab determines the number of loci targeted for analysis. The FBI at one point used thirteen core loci, and in 2017 increased that number to twenty (id., citations omitted). The MSP laboratory generally analyzes 24 loci (id., citation omitted).

         DNA profiling is perhaps the greatest advancement of the 20th century in the criminal justice system. It has freed the innocent, corralled the guilty, and given closure to decades long cold cases. But-it is not a surefire solution to all crime investigation.

         Why DNA Analysis Doesn't Work-

         “In the thirty years since its debut, DNA has assumed an ever-increasing role in criminal cases, and forensic DNA databases now flourish.” 4 Mod. Sci. Evidence § 30:1. “No other scientific technique has gained such widespread acceptance so quickly. No. other technique is as complex or so subject to rapid change.” Paul C. Giannelli, The DNA Story: An Alternative View, 88 J. Crim. L. & Criminology 380, 381 (1997) (footnote omitted).

         During this time there have been improvements, refinements and ongoing review of the analytical processes involved in criminal DNA analysis. While this has undoubtedly led to important insights and advancements, as with any scientific process, new methods have revealed the shortcomings of the old. And objections remain with respect to current DNA analysis:

Although the basic scientific principles behind PCR amplification and capillary electrophoreses are well established, there remain aspects of interpretation that might still be objectionable. Many lay persons believe that DNA testing methods produce unambiguous, or mathematically precise, results, but the truth-especially with regard to often problematic or perplexing crime scene samples-can be far from the case. In general, examiners employ rules of thumb to help resolve these ambiguities, but admissibility issues might nonetheless arise in one of two ways.
First, if one of these rules of thumb proved scientifically unsound, then exclusion would be appropriate on Rule 702 grounds. …
* * *
Secondly, even if interpretative rules meet the Rule 702 standard, it might still in some cases be appropriate to exclude evidence in a case in which bona fide disagreements as to the proper interpretation of ambiguous results might arise. …

4 Mod. Sci. Evidence § 30:11, Current objections to DNA admissibility-Science-General subjectivity (2018-2019 ed.) (footnote omitted).

         II. DNA ANALYTICAL PROCESS

         For the uninitiated, forensic DNA analysis is a complex scientific process. Couple that with the complexity of the mathematical theories, algorithms and likelihood statistics used in probabilistic genotyping software, and a full explanation would far exceed the bounds of this legal opinion. The Court will strive for a happy medium.

         “The usual objective of forensic DNA analysis is to detect variations in the genetic material that differentiate one individual from another. But ‘forensic DNA typing' is not a single scientific process. The term encompasses different kinds of testing methods, at times using different sources of bodily material, and may also refer to differing statistical means of assessing the significance of a match.” 4 Mod. Sci. Evidence § 30:1 (footnote omitted).

         DNA testing in the United States is generally done using commercial test kits that examine specific loci on the human genome where there are “Short Tandem Repeats, or STRs, which are genetic markers that contain short repeated sequences of DNA base pairs” (Def. Br., ECF No. 41 at PageID.749; Michigan State Police Biology Procedures and Training Manuals (MSP PMBIO) § 2.11.1). See also William C. Thompson, Laurence D. Mueller, & Dan E. Krane, Forensic DNA Statistics: Still Controversial in Some Cases, The Champion, Dec. 2012, p. 13. As noted, the region at which a particular STR is found is called a “locus” (Govt Br., ECF No. 52 at PageID.1742). The number of times that a particular sequence repeats itself at a locus varies from person to person, such that STRs “represent a good source to differentiate individuals” (ECF No. 41 at PageID.749-750, citing MSP PMBIO § 2.11.1). The specific number of repeats is called an “allele” (ECF No. 52 at PageID.1742). A person will have two “alleles” at each STR, one inherited from each parent. See William C. Thompson, et al., Forensic DNA Statistics: Still Controversial in Some Cases, p. 13.

         “If two DNA samples are from the same person, they will have the same alleles at each locus examined; if two samples are from different people, they will almost always have different alleles at some of the loci. The goal of forensic DNA testing is to detect the alleles present at the tested loci in evidentiary samples so that they can be compared with the alleles detected at the same loci in reference samples from possible contributors.” Id. (footnote omitted).

         A. PCR and Electrophoresis

         The process for obtaining a DNA profile begins with taking a swab, which then is subjected to a chemical process that extracts and amplifies or replicates the DNA at specific loci, and ultimately outputs a chart of the alleles present in the form of a graph for interpretation by the DNA analyst.

         STRs can be detected through a process using polymerase chain reaction (“PCR”) and an analytical technique called capillary electrophoresis (see MSP PMBIO § 2.11.1). Briefly described, during PCR, the DNA sample is copied, or “amplified, ” utilizing commercially-produced fluorescent primers. The genetic material then is passed through a capillary electrophoresis instrument, which “separates the DNA fragments by size, ” allowing for allele identification. The number of times that a particular sequence repeats at a particular site corresponds to an “allele.” This process, “electrophoresis, ” generates a chart called an electropherogram (EPG or e-gram) of a series of peaks, wherein the peaks are proportionate to the amount of DNA present or the length of the STR.

         “Either an analyst, or the [DNA testing] software, can ‘call' peaks to differentiate signal from noise. Noise, by way of example, can come from artifacts of the PCR process that result in small peaks not indicative of actual alleles” (see Govt Br., ECF No. 52 at PageID.1743 n.3).

         In the case of a single DNA profile, an analyst would expect to see either one or two signal peaks at each locus. Where, however, three or more identified peaks appear at a locus, the analyst knows that the profile usually contains a mixture of DNA. When the DNA profile is found to contain a mixture of more than one contributor, probabilistic genotyping software is used to further analyze the DNA sample.

         B. Probabilistic Genotyping

         Probabilistic genotyping software (PGS) is the most recent purported advancement in forensic DNA analysis. Probabilistic genotyping refers to “the use of biological modeling, statistical theory, computer algorithms, and probability distributions to calculate likelihood ratios (LRs) and/or infer genotypes for the DNA typing results of forensic samples (‘forensic DNA typing results').” SWGDAM, Guidelines for the Validation of Probabilistic Genotyping Systems, https://docs.wixstatic.com/ugd/4344b022776006b67c4a32a5ffc04fe3b56515.pdf (last visited 10/14/19).

         A probabilistic approach to DNA interpretation was first publicized around 2000, with the first software program created around 2006 (ECF No. 152 at PageID.4087). At about the same time, in 2006-2008, a shift occurred in the kinds of cases that were being submitted to laboratories (id. at PageID.4088). In 2006-2007, mixtures were predominantly two-person mixtures, high quality, high quantity blood or sexual assault evidence (id.). Beginning in 2004-2006, there was a recognition that DNA could be obtained from materials that had been touched, such as steering wheels, cell phones and guns (id. at PageID.4088-4089). The labs began receiving more and more complex mixtures of two, three, four or more contributors (id. at PageID.4089). These converging circumstances, in a little more than a decade, have led to PGS becoming the anointed “crown jewel” of DNA analysis.

As the sensitivity of forensic DNA typing procedures has improved with the development of better DNA extraction and amplification chemistries and detection instrumentation, more DNA profiles originating from the DNA of two or more individuals are being encountered in forensic casework. The complexity of profile interpretation increases with each additional contributor to a mixture, particularly if the DNA contribution is low and therefore subject to stochastic effects (e.g., allele dropout and greater heterozygous peak height variance). …
* * *
Probabilistic genotyping refers to the use of software and computer algorithms to apply biological modeling, statistical theory, and probability distributions to infer the probability of the profile from single source and mixed DNA typing results given different contributor genotypes. The software weighs potential genotypic solutions for a mixture by utilizing more DNA typing information (e.g., peak height, allelic designation and molecular weight) and accounting for uncertainty in random variables within the model, such as peak heights (e.g., via peak height variance parameters and probabilities of allelic dropout and drop-in, rather than a stochastic or dropout threshold). Likelihood ratios (LRs) are generated to express the weight of the DNA evidence given two user defined propositions. Probabilistic genotyping software has been demonstrated to reduce subjectivity in the interpretation of DNA typing results and, compared to binary interpretation methods, is a more powerful tool supporting the inclusion of contributors to a DNA sample and the exclusion of non-contributors. Despite the effectual incorporation of higher level interpretation features, though, probabilistic software programs are not Expert Systems as defined under the National DNA Index System (NDIS) Procedures. The DNA typing data and probabilistic genotyping results require human interpretation and review in accordance with the Quality Assurance Standards for Forensic DNA Testing Laboratories.

(ECF No. 52-4 at PageID.1831-1832; footnotes omitted).[4]

         In order to analyze complex mixtures of DNA, with three or more contributors, software is necessary, since it performs hundreds of thousands of calculations, which could not conceivably be performed by hand.

         C. STRmix™ Software

         STRmix™ is one of the leading probabilistic genotyping software programs in use in the United States. The software uses the electropherogram results, along with inputs from the lab analyst, to generate a statistical estimate in the form of a likelihood ratio (LR) to communicate the laboratory's assessment of how strongly forensic evidence can be tied to a suspect (see ECF No. 41 at PageID.751, citing MSP STRMix Validation Summary, ECF No. 41-14 at PageID.1018 and ECF No. 41-15, Article, National Institute of Standards and Technology, “NIST Experts Urge Caution in Use of Courtroom Evidence Presentation Method, ” October 12, 2017).

         “The LR considers the probability of obtaining the evidence profile(s) given two competing propositions, usually aligned with the prosecution case and defence case.” Jo-Anne Bright, Duncan Taylor, Catherine McGovern, Stuart Cooper, Laura Russell, Damien Abarno, John Buckleton, Developmental validation of STRmix™, expert software for the interpretation offorensic DNA profiles, Forensic Science International: Genetics 23 (2016) 226-239 (FSI 23), ECF No. 41-16 at PageID.1068). In essence, an LR represents the likelihood of whether a particular person's DNA ...


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