The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
On April 25, 2005, this Court issued a Memorandum Opinion and
Order addressing preliminary issues relating to the Government's
planned use of certain DeoxyriboNucleic Acid ("DNA") evidence at
trial. See United States v. Morrow, Crim. No. 04-355, 2005 U.S.
Dist. LEXIS 8327 (D.D.C. Apr. 25, 2005). Specifically, the Court
concluded that (1) PCR/STR DNA testing, the laboratory typing
process used in this case by the FBI Laboratory to "match"
Defendants to specific DNA samples collected, is as a general
rule in accordance with the Supreme Court's guidelines set
forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and may lead to
admissible DNA evidence at trial; and (2) even DNA evidence with
relatively low statistical significance may be admitted as
probative evidence, provided that certain safeguards are
afforded. Morrow, 2005 U.S. Dist. LEXIS 8327, at *52.
However, the Court emphasized that its ruling was limited in many
respects, noting that "the Court has not determined that all of the
Government's DNA evidence may now be introduced into evidence." Id. at *53.
Rather, the Court observed that "Defendants have not yet received their own DNA expert reports, have not contested the
FBI's protocols, have not argued that the protocols were not
followed, and have not singled out any laboratory errors that may
rise to sufficient significance that exclusion of DNA evidence is
warranted." Id. Moreover, the Court itself questioned the
probative value of some of the Government's planned DNA evidence
specifically, DNA evidence that the Government identified as
showing a 1:1 random match probability in all populations. Id.
Accordingly, the Court ordered "that, upon receipt of their own
DNA experts' reports, Defendants notify the Court as to precisely
what challenges, if any, they shall make to the admissibility of
the Government's DNA evidence so that the Court can determine
what issues, if any, will require a hearing before presentation
of that evidence to the jury." Id. at *53-*54.
During the time that has passed since the Court's April 25,
2005 Memorandum Opinion and Order, several developments have
created the need for the Court to address the issues left
outstanding by its previous Order and to resolve other related
matters. The Court, in this memorandum opinion, will address: (1)
recent events that have altered the scope of the Government's DNA
evidence put before the jury; and (2) Defendant Aaron Perkins'
Motion to Exclude Contaminated DNA Samples Obtained From the
Brinkley Road Search ("Def. Perkins' Mot."), with the Government's
subsequent Opposition. In addition to tying up the previous Opinion's
loose ends, the Court, upon an analysis of the parties' filings, the
relevant case law, and the entire record herein, concludes that
Defendant Perkins' Motion to Exclude shall be denied. I: DISCUSSION
The Court shall commence its analysis by focusing initially on
recent developments regarding the DNA evidence at issue in this
trial, including events that have altered the predicted scope of
the DNA evidence put before the jury and have resolved in part
the issues left outstanding by the Court's previous Opinion.
The Court shall then turn its attention to Defendant Perkins'
Motion to Exclude based on certain allegations of evidence
contamination that are alleged to have occurred during the
collection of evidence from his apartment at Brinkley Road.
The Court's April 25, 2005 Memorandum Opinion and Order dealt
with two specific issues: (1) whether the PCR/STR DNA process
employed by the Government satisfied the principles inherent in
Daubert; and (2) whether DNA evidence resulting in a relatively
low level of statistical significance may still be admissible
under both Daubert and the strictures inherent in Federal Rule
of Evidence 403. Importantly, the Court answered both questions
with a qualified "yes" i.e., the PCR/STR DNA typing process and
resulting matches of low levels of statistical probability were
both admissible, "contingent upon a showing by the Government
that the techniques, methods, and practices used in the testing
in this case, as well as the expert's qualifications, meet with
the generally accepted and established protocols." Morrow,
2005 U.S. Dist. LEXIS 8327 at *30-*31.
Several important developments have tied together the loose
ends created by the Court's contingent, preliminary ruling of
April 25, 2005. First, although the Court's ruling specifically
authorized the introduction of DNA evidence with relatively low
levels of match probability significance, e.g., evidence showing
a 1:12 likelihood of a random match as compared to evidence showing a 1:16 billion likelihood of a random match,
id. at *41-*43, the Government agreed not to introduce on
direct testimony through its DNA expert those instances in which
the random match probability showed only that "a specific
defendant could not be excluded as a potential minor
contributor." See 5/25/05 Tr. at 5836:22-5837:17, 5846:3-25.
When presented with this offer, the Court ordered that the
Government share with defense counsel which DNA samples and
random match probabilities it would not bring out through its
expert on direct examination. Id. at 5838:1-4. Therefore, the
DNA evidence presented to the jury on direct in this case
revolved around samples with a high statistical
significance.*fn1 For instance, the Government presented
various DNA samples where the probability of selecting an
unrelated individual at random having the same STR profile as the
contributor detected was 1:16 billion in the African-American
population, see 5/26/05 Tr. at 5221:14-20, 1:110 million in the
African-American population, id. at 5223:1-7, and 1:4.7 billion
in the African-American population, id. at 5224:4-10. However,
the Government did not introduce DNA evidence where the
probabilities of selecting an unrelated individual were 1:12,
1:7, 1:6, 1:3, or 1:1, as Defendants had previously feared and
anticipated. See Morrow, 2005 U.S. Dist. LEXIS 8327, at *9-*10.
As such, one section of the Court's earlier ruling did not come
into play in practice. See id. at *33-*43.*fn2 Second, and more importantly, Defendants with one limited
exception chose not to challenge the Government's DNA
techniques, methods, and practices used in the testing in this
case even after they received reports from their own DNA
experts. See 5/25/05 Tr. at 5829:14-5835:13. Defendants also
decided not to object to having Ms. Heather Seubert, who is
currently employed as a DNA examiner at the Federal Bureau of
Investigation laboratory within the DNA analysis unit of the FBI
lab, located in Quantico, Virginia, qualified as a DNA expert for
the Government. See 5/26/05 Tr. at 5135:15-5141:20. Rather,
Defendants primarily resorted to cross-examination techniques in
an attempt to undermine the weight of the DNA evidence presented
by Ms. Seubert, not its admissibility.
However, Defendant Aaron Perkins did challenge the
admissibility of a limited number of allegedly contaminated DNA
samples. See Def. Perkins' Mot.; Def. Perkins' Revised Mot. A
discussion of the issues underlying Defendant Perkins' motion is
necessary in order to definitively resolve all DNA-related issues
in this case.
B. Defendant Perkins' Motion to Exclude
Prior to the Government's introduction of its DNA expert, Ms.
Seubert, Defendant Aaron Perkins, on May 25, 2005, filed a Motion
to Exclude Contaminated DNA Samples Obtained From the Brinkley
Road Search. When alerted as to the existence of this newly-filed
motion, the Court held a brief discussion with counsel for Defendant Perkins
and the Government on the morning of May 25, 2005, and then set
out a briefing schedule for supplemental filings. See 5/25/05
Tr. at 5841:7-5853:9. Defendant Perkins then filed a Revised
Motion to Exclude, and the Government responded with a subsequent
Opposition. In his Revised Motion, Defendant Perkins attached a
report created by his DNA expert, Dr. Ronald S. Ostrowski, in
support of his argument in favor of exclusion. See Def.
Perkins' Revised Mot., Attach. at 1-3.
Importantly, Defendant Perkins does "not question the use of
PCR/STR typing or the probative value of DNA evidence which is
only of `a relatively low level of statistical relevance,'" Def.
Perkins' Revised Mot. at 2 the chief concerns of the Court's
April 25, 2005 Memorandum Opinion and Order. Instead, Defendant
Perkins notes that FBI Special Agent Michael McCoy admitted, upon
cross-examination by Defendant Palmer's counsel, Mr. Atiq Ahmed,
that "certain pieces of evidence from Mr. Perkins' apartment were
placed on a sheet from Mr. Perkins' bed during the search" in
order to be photographed prior to collection. Id. at 1.
According to Defendant Perkins, "[p]lacing the evidence on the
bed sheet was done in violation of generally accepted forensic
protocols and FBI forensic protocols." Id. Based on this
alleged contamination, Defendant Perkins contends that "once the
evidence in question was wrapped in Mr. Perkins' bed sheet and
thus contaminated by Mr. Perkins' DNA, the probative value of
said evidence was vitiated." Id. at 2. As such, Defendant
Perkins stresses two important points: (1) "[c]ontamination of
the evidence by Mr. Perkins' DNA ensures that it is now, as a
logical and scientific matter, impossible to exclude Mr. Perkins
as a possible contributor," id. (emphasis in original); and
(2) because "[t]here is no probative value to DNA contamination,"
the evidence in question must be excluded from admission, id. In support of his argument, Defendant Perkins cites two cases,
State v. Scott, 33 S.W.3d 746, 758-59 (Tenn. 2000), and State
v. Morel, 676 A.2d 1347, 1356 (R.I. 1996), and one article, John
E. Smialek, The Microscopic Slide: A Potential DNA Reservoir,
FBI Law Enforcement Bull. 18, 19 (Nov. 2000), that "have stepped
up to firmly address the seriousness of the contamination issue."
Def. Perkins' Revised Mot. at 2. Moreover, Defendant's DNA
expert, Dr. Ostrowski, identifies several FBI protocols that were
allegedly violated in the collection of this evidence. See id.,
Attach. at 1-3. According to Dr. Ostrowski, the "Special
Precautions" violated by the FBI's Special Agents include
commandments to "[u]se a clean cutting surface for each piece of
evidence," "wear? gloves that are changed regularly," and "[u]se
disposable bench paper to cover work area used to perform
specimen preparation steps to prevent accumulation of amplified
DNA on permanent work surfaces. . . . Diluted bleach should be
used to periodically wash exposed work areas." Id., Attach. at
2. Based on the fact that certain items were placed on Mr.
Perkins' bed sheet when collected, Dr. Ostrowski claims that the
procedures outlined in the FBI Laboratory Protocol for handling
items to be tested were "negated," thereby "rendering the items
collected useless for DNA analysis." Id.
In conclusion, Defendant Perkins suggests that the Court should
take action to exclude the identified DNA evidence from
consideration by the jury. In doing so, Defendant Perkins admits
that the great weight of legal precedent indicates that possible
contamination issues go towards the weight rather than the
admissibility of DNA evidence and should be brought out during
cross-examination. See Def. Perkins' Mot. at 1 (citing
Morrow, 2005 U.S. Dist. LEXIS 8327; United States v. Trala,
162 F. Supp. 2d 336 (D.Del. 2001); United States v. Lowe,
954 F. Supp. 401 (D. Mass. 1996)). However, Defendant Perkins
contends that the Court should set new legal precedent in this area and actually exclude DNA
evidence based on contamination concerns for policy reasons.
Essentially, Defendant Perkins focuses on incentives, arguing
that "[i]f the Government is permitted to contaminate DNA
evidence and then introduce it on the theory that its probative
value will be addressed upon cross-examination, then there is no
incentive on the part of the Federal law enforcement agents ...