Académique Documents
Professionnel Documents
Culture Documents
4
IN RE FLORENCIO JOSE )
5 DOMINGUEZ, )
)
6 ) CASE NO. HC22238
) RELATED CASE SCD230596
7 ON HABEAS CORPUS )
)
8 _______________________________)
9
REPORTER'S TRANSCRIPT OF PROCEEDINGS
10
MONDAY, MAY 22, 2017
11
VOLUME 1 of 3
12
PAGES 1 THROUGH 179
13
14 A P P E A R A N C E S:
15
FOR THE PEOPLE:
16
BONNIE DUMANIS
17 DISTRICT ATTORNEY
BY: CHRISTINE BANNON
18 DEPUTY DISTRICT ATTORNEY
330 WEST BROADWAY
19 SAN DIEGO, CALIFORNIA 92101
20
FOR DEFENDANT:
21
MATTHEW J. SPEREDELOZZI
22 ATTORNEY AT LAW
110 WEST C STREET, SUITE 712
23 SAN DIEGO, CALIFORNIA 92101
MATT@LAWOFFICEMJS.COM
24
25
28
2
2
PAGE LINE VOL
3
SHAWN MONTPETIT - PEOPLE'S WITNESS
4 DIRECT BY MR. SPEREDELOZZI . . . . . . 18 11 1
CROSS BY MS. BANNON . . . . . . . . . .136 4 1
5
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
2
PAGE LINE VOL
3
3 SUPPLEMENTAL FORENSIC DNA 21 24 1
4 REPORT #2 - BY SHAWN MONTPETIT
10/9/2009
5
7 SUPPLEMENTAL FORENSIC DNA 30 24 1
6 REPORT #6 BY SHAWN MONTPETIT
2/16/2011
7
9 SUPPLEMENTAL FORENSIC DNA 94 26 1
8 REPORT #8 BY SHAWN MONTPETIT
5/8/2015
9
11 DECLARATION OF SHAWN MONTPETIT 119 19 1
10 10/14/2015
28
4
2
PAGE LINE VOL
3
45 EXCERPTS FROM SDPD TECHNICAL 111 12 1
4 MANUAL, PAGES 150 AND 163
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
2 -- O0O --
10 behalf of Petitioner.
14 morning.
20 well.
3 going to go.
5 over to you.
8 there are -- there are three of them, the two of which are, I
27 that issue. And I think that issue has been briefed by the
6 the trial evidence was, what the DNA evidence was at the first
7 trial. Not the retrial of this matter, but the first trial
12 knows, the first trial ended in a hung jury with nine votes
13 for not guilty and three votes for guilty. So it's our belief
14 that it was the DNA evidence that changed the verdict at the
15 second trial.
19 We're going to explain the reasons why his testimony has been
21 specific about that. And then we're also going to show what
23 commented about that -- that method since the trial ended and
27 admissibility test.
4 purposes and that he's the one who initiated the change in the
18 some sort of discipline for that, and we hope that will show
6 know that, but common sense tells us that it's probably quite
7 a few.
13 Thank you.
16 reserve it?
23 so that we are all analyzing the same questions and know where
28 this hearing.
10
5 and value that it would more likely than not have changed the
28 in trial.
11
8 and 17-3 than the lab was asking and answering at the time of
11 from 16-3 and 17-3, the statistical model available to the lab
16 calculator, so to speak, one which the lab did not have at the
17 time that 16-3 and 17-3 were reexamined. Since the lab took
20 developed, the lab would not report results that included the
27 calculate or compare.
6 time of trial.
11 evidence was discovered after trial that either did not exist
2 is also no.
17 valid answer.
3 model was not the best statistical model to use to answer that
9 cannot be calculated.
17 parts for a much more refined analysis, that is, to see just
18 what you had, but it was also the, quote, better calculator
22 answer this new question which the lab determined in 2011 that
27 complex DNA mixtures, but it is the one that the SDPD lab
6 Mr. Montpetit that the DNA profiles are still developed using
14 fields.
19 the San Diego Sheriff's crime lab, the United States Army and
26 items 16-3 and 17-3 applying its 2011 guidelines for mixture
1 DNA mixtures. Mr. Montpetit now had the tool, that better
5 samples.
8 and 17-3.
13 not invalidate the first question that was asked and answered.
23 Thank you.
26 witness?
2 Shawn Montpetit.
5 you shall give in this matter shall be the truth, the whole
9 witness stand.
15 THE CLERK: Can you please state your full name and
2 list.
6 SHAWN MONTPETIT,
10 DIRECT EXAMINATION
11 BY MR. SPEREDELOZZI:
13 A. Good morning.
15 but these are our exhibits that we've marked -- or that I've
18 projector here.
20 A. I can.
26 A. Correct.
3 an analyst?
5 analysis.
18 Q. You were doing the job just not getting paid for the
20 A. Correct.
26 A. Yes.
8 A. It was in biology.
13 A. I graduated in 1999.
17 Forensic Sciences.
23 A. It was in 1999.
26 A. Correct.
1 A. Yes.
5 correct?
10 2010?
13 April of 2011?
21 well.
23 A. Yes.
25 BY MR. SPEREDELOZZI:
27 A. Correct.
1 A. Yes.
4 A. Correct.
8 A. Yes.
15 A. Yes.
19 Q. Okay. And your conclusion was that who was the major
22 samples.
24 from the police department that that was the victim in this
25 case, right?
27 request I received.
2 A. Yes.
6 A. Yes.
10 was the blood stain from the outside. 16-2 was swabs of the
12 Q. And 16-2, was that the right glove or was that the
13 left glove?
16 A. Correct.
18 A. Correct.
24 A. Correct.
1 A. Yes, I did.
2 Q. And that was the defendant in the case that you were
4 A. Yes.
6 A. That's correct.
9 A. Correct.
10 Q. You're not like a witness other than the work you did
12 A. Correct.
15 A. They are.
21 contributor?
24 correct?
25 A. Yes, I did.
5 mixtures.
7 understanding of that.
12 yes.
14 Paragraph 2, correct?
19 A. Yes.
22 A. Correct.
23 Q. And you know what, I'm going to get into that later
28 A. Okay.
26
5 A. 1 in 110.
7 A. Correct.
10 the -- the mixture profile that you got from 16-2 just by
11 chance, right?
14 A. Correct.
17 A. Yes.
20 A. I have no idea.
26 to strike.
2 BY MR. SPEREDELOZZI:
8 by 110?
9 A. Correct.
13 A. Correct.
16 A. Yes.
21 in my reports.
23 correct?
24 A. Yes.
27 A. It was mostly DNA from the victim in the case and not
2 but not the other that you could conclude Mr. Dominguez was a
4 A. Correct.
11 first swabbing.
13 evidence, same swab, but you ran it through the PCR process
14 two times?
15 A. Correct.
20 talking about here, what is this PCR thing you keep talking
21 about?
23 technology that we use and it forms the foundation for our DNA
25 Xerox machine and it copies sections of the DNA over and over
27 detect.
28 Q. And the result that you get is -- the result you get
29
5 Q. And you took the item 16-2 prior to the first trial,
6 prior to June 1st, prior to writing this report, you did that
8 A. Correct.
9 Q. And each time you did it, you got a -- the two times
10 you did it, you actually got a different result as far as the
13 the second analysis and so I got more DNA types the second
14 time.
16 that you did on 16-2, that just like 17-2 you were
25 A. No.
27 it's just not part of your work to try and understand what the
1 You're just there to tell the truth and tell your science,
2 right?
7 second trial?
8 A. Correct.
10 right?
11 A. Yes.
13 two gloves?
14 A. Correct.
16 you want to open that up, you can refer to that. I'm going to
20 BY MR. SPEREDELOZZI:
23 A. Correct.
25 BY MR. SPEREDELOZZI:
27 A. Yes.
1 correct?
2 A. Yes.
5 A. Correct.
9 gloves.
13 took the same swab and ran the PCR process twice, this time
15 A. Correct.
17 first trial?
22 A. Correct.
25 A. Yes.
1 A. Yes.
3 A. Yes.
5 two swabs that you got than what you had prior tested in the
7 A. Correct.
10 You created two new item numbers when you made these
11 swabbings, correct?
12 A. Yes.
14 A. Correct.
16 A. Yes.
19 A. Yes.
21 A. Correct.
22 Q. Right.
25 about.
2 A. Correct.
4 with?
5 A. Yes.
11 A. Correct.
17 inclusion.
19 you did not find his allele -- his DNA material in that loci,
20 then if you included that in the CPI statistic, then that just
24 that person.
26 omit two of the loci -- at least two of the loci to do the CPI
27 statistic, right?
28 A. Yes.
34
4 A. Yes.
5 Q. And the -- you told the jury exactly what you just
6 told this court now that you, in fact, excluded two loci and
11 present, right?
12 A. Yes.
14 item 16-3, the inner swab of the right glove, the new swabbing
17 A. Yes.
19 Florencio Dominguez?
23 statistic, right?
24 A. Correct.
27 A. It is.
5 the swab -- the second swab of the left glove that's also
7 A. Yes.
18 population.
20 back up.
24 A. Correct.
27 A. Correct.
28 Q. And it's also consistent with what you just told the
36
1 Court today?
2 A. Correct.
5 A. Yes.
10 than 1 in 110.
12 stronger inclusion than the one you gave prior -- prior in the
13 October trial?
14 A. Sure.
17 A. Okay.
18 Q. Is that a "yes"?
19 A. Yes.
24 correct?
25 A. Correct.
4 Q. Me neither.
6 A. Yep.
8 A. Okay.
9 Q. Right?
10 A. 2,800.
13 A. Sure.
23 A. All right.
2 about?
8 sample, right?
9 A. Yes.
13 A. Correct.
16 A. Correct.
23 A. Yes.
25 analyzing?
27 determining marker.
3 A. Amelogenin, A-M-E-L-O-G-E-N-I-N.
6 chromosomes, yes.
8 A. No.
12 A. Yes.
17 genetic marker?
21 A. It is, yes.
23 A. If you get the same DNA type from your mother and
26 dad gives you a 17, then you'd basically have two 17s and each
7 mixture?
17 A. Correct.
20 given loci?
26 the sample.
28 at the time -- at the time you did the case work on this case,
41
2 when you did the case work, what you would do is you would
7 mixture sample and omit, you know, certain four loci from your
8 calculations, correct?
9 A. Yes.
12 A. Yes.
17 correct?
24 and choose which loci you want to consider and omit them --
5 A. Yes.
8 of the evidence.
11 right?
12 A. Well --
19 correct.
22 that. One is that they don't have DNA in that sample. Or the
17 more like a blind study, right? You wouldn't have the suspect
1 specifically, but analysts who work for the police, who work
6 A. Yes.
25 Exhibit 7, correct?
26 A. Yes.
2 A. Yes.
5 A. Correct.
9 A. Yes.
12 A. Yes.
14 A. Yes.
16 A. Yes.
18 A. Correct.
20 what their profile is, that's what makes you decide which loci
8 correct?
9 A. Yes.
13 A. Correct.
14 Q. And is there one that you used for one person and not
15 the other?
16 A. DNA markers.
18 A. Yes.
20 first look at the mixture profile and you decide before you
23 A. Yes.
26 right?
27 A. Yes.
6 individual, correct?
7 A. Yes.
12 A. Yes.
15 A. Yes.
19 A. Yes.
25 Q. You didn't?
3 FGA marker as well as D7, D18 and D2, but for the people
4 below, I'm not using it as well. I'm only using the D8, D3,
5 TH01, and D13 marker. So I'm only using four markers for
6 those calculations.
8 language.
10 the analysis you used a genetic marker for one person but then
12 A. Yes.
13 Q. -- still is true?
15 report.
21 hour.
22 (Recess taken.)
25 Mr. Montpetit has resumed the witness stand. Thank you, sir.
28 ///
49
1 BY MR. SPEREDELOZZI:
7 A. Yes.
14 BY MR. SPEREDELOZZI:
20 from your CPI statistic. Do you know what those two have in
21 common?
23 the comparison?
24 Q. Yes.
1 loci?
5 two loci?
6 A. Yes.
8 case, right?
9 A. Correct.
11 A. Yes.
13 A. Correct.
17 A. Yes.
24 still a possibility.
3 contributor?
4 A. Yes.
6 and answer also apply to Exhibit 3, your report from June 1st,
7 2010, and you have that in front of you; it's also on the
11 of 2010, correct?
12 A. Correct.
15 correct?
16 A. In conclusion 2, yes.
19 A. Yes.
22 A. Yes.
26 A. Correct.
2 A. Yes.
4 BY MR. SPEREDELOZZI:
6 Sciences, correct?
7 A. Yes.
10 A. Yes.
15 correct?
17 yes.
21 A. Yes.
24 it years ago.
1 BY MR. SPEREDELOZZI:
3 A. Yes.
5 addresses -- it addresses?
6 A. Yes.
9 A. Yes.
12 right?
13 A. Yes.
16 A. Yes.
19 A. Yes.
20 Q. What does that say? Can you read that for us?
5 sample and to omit those loci at which the suspect has alleles
7 mixture."
8 BY MR. SPEREDELOZZI:
13 reference sample.
15 you, right?
16 A. Yes.
21 A. Yes.
26 field?
3 A. Yes.
5 A. Yes.
7 A. Yes.
12 included.
14 this same issue, this issue of picking and choosing which loci
18 calculations.
27 mixture."
28 ///
56
1 BY MR. SPEREDELOZZI:
20 you would.
15 those.
16 BY MR. SPEREDELOZZI:
25 calculation.
13 But --
25 not right without looking into why those labs were doing it.
26 Q. So those were --
28 loci, and I would agree that what they were doing was wrong.
59
6 that mixture.
15 actually looked into why labs were doing it and the different
22 or wrong, can you at least agree, yes or no, that this paper
23 tells you that the interpretation method you used they don't
24 agree with?
4 specifically addressed?
7 contexts.
9 who you've worked with, you don't think they wrote a good
15 you, sir.
19 way you analyze the samples in this case when you -- prior to
28 definitions of what low copy number is. I'm not too sure what
61
8 using.
10 A. Yes.
13 I'm talking about, what I'm asking you about, you didn't, in
15 A. Correct.
1 electropherogram.
16 low level, high level, intensity, what have you, we're talking
21 the electropherogram?
22 A. Yes.
24 sample, and that's the samples I was talking about, the 16-2,
26 profile, right?
6 there's major?
10 peaks are taken into account when we interpret and -- for the
17 and which one is minor because the height ratios are quite
19 contributors?
21 Q. Meaning?
24 the major contributors are big, giant peaks and the minor
1 this case?
3 individual.
5 know, right?
6 A. Yes.
8 A. Yes.
11 A. Yes.
13 low?
16 A. Yes.
19 A. Yes.
22 stochastic range?
9 not, in fact, tell you that maybe it's not a full and complete
10 profile?
25 16, 17, -2, -3, all of them had many alleles that were in the
26 stochastic range?
27 A. That is correct.
13 are some peaks that did not make it to the detection threshold
14 but they are, in fact, true peaks, they are true alleles that
16 A. Yes.
18 analyzed item 16-2, you swabbed it, you created item 16-2 and
20 A. Yes.
22 process?
24 there were some additional DNA peaks that were detected the
2 detected more.
4 talking about. The major contributor, the one where you have
5 all the peaks that are all above the stochastic range are
6 reproducible, right?
7 A. Yes.
10 A. That's correct.
12 you did twice, then you reswabbed and PCRed 16-3, and then you
13 redid 17-2 and then you reswabbed and did 17-3, you're getting
14 more and more information, more alleles every single time you
15 do this?
17 analyses.
19 of the peaks actually dropped out when you did it the second
20 time around?
26 as well.
1 A. Yes.
7 counsel.
10 report, you made some charts. These are things that you
12 A. Yes.
16 It's one, two, three, four, five, six, seven, eight -- the
18 A. Yes.
19 Q. And you did a second PCR. That's the tenth one down.
20 And that one has more information than the first one?
22 second analysis.
27 DNA extract for 16-2. And when I analyzed it the first time,
28 using what our general target is for DNA analysis or what our
69
1 target was at the time, I saw that there was a mixture and
6 A. 1338.
9 A. Yes.
12 A. That is correct.
14 there?
16 type was a low level type and it was in the first analysis and
28 Q. Artifacts?
70
4 Q. I've heard the word noise. Have you heard that word?
6 Q. What is that?
9 instrument with the testing process that we use and the DNA
13 Q. Stutter peaks?
15 they are -- they're a true DNA type, but they are, as I said,
18 one repeat shorter or one repeat larger than the true allele
23 A. Yes.
27 right?
4 trials in this matter, that each time you tested the samples,
6 A. Yes.
8 then in the prior PCR analysis that you did of the first
9 samples, right?
18 testing kit, knew through our experience with using the kit on
22 markers.
4 I'm wrong, you were conceding the fact that, yes, it could be
7 the way we were conducting our analysis and the way we were
15 Mr. Dominguez.
22 samples tested?
25 Q. So --
28 potential.
74
9 loci?
14 alleles would not have been detected and they're not on the
15 chart.
26 be included.
1 the tool that we were using was appropriate for answering the
6 make the CPI statistic for Mr. Dominguez or anybody else less
7 compelling?
13 the question --
18 BY MR. SPEREDELOZZI:
3 A. Yes.
9 have good procedures and policies, you can minimize the -- the
16 sample, that's also true for -- for the CPI statistic -- let
22 right?
24 that association.
4 A. I'm not 100 percent sure of every term that you threw
7 and render opinions and stats that differed from each other,
10 actually common?
15 jury, right?
16 A. Yes.
18 A. Yes.
22 statistic?
25 please.
26 BY MR. SPEREDELOZZI:
1 right?
9 that association.
13 something, you know, some people might say, whoa, that's not
14 too many people that match that. Other people might say,
18 significant.
24 between the two and that you just look at the two things, you
27 A. Okay.
3 process.
6 protocols, they would arrive at the same number that I did and
9 binder.
10 A. Okay.
12 BY MR. SPEREDELOZZI:
14 look.
16 A. Yes.
18 Justice?
23 A. Yes.
27 occupation is?
1 bias.
4 analyzing evidence?
11 BY MR. SPEREDELOZZI:
13 A. Yes.
15 collaborate on a work?
16 A. Yes.
22 see if you are in agreement with some of the things that are
1 inconsistent interpretations.
21 interpretation.
23 because you're not familiar with this paper and so I'll keep
24 my questions limited.
27 examiners and got results that were totally different from one
3 bias plays a role and they did not unify the interpretation
12 conclusions.
14 A. Correct.
17 take a look at that again? The date of this study was when?
18 A. 2011.
25 2011.
28 A. Yes.
83
2 A. Okay.
4 BY MR. SPEREDELOZZI:
9 A. BMC Genetics.
13 genetics journal.
18 A. Yes.
19 Q. Who is he?
21 mentioned before.
23 A. Yes.
25 A. Yes.
26 Q. Who is he?
28 North Texas.
84
2 A. Yes.
4 A. Yes.
6 A. Yes.
8 A. I do.
4 donor be" --
6 BY MR. SPEREDELOZZI:
17 answering?
6 question.
12 drew and offered testimony on why they are valid, and that's
18 Your Honor?
20 BY MR. SPEREDELOZZI:
22 A. I do.
24 does that affect your case work or do you have any credence to
25 that whatsoever?
27 publication.
7 and technology.
9 BY MR. SPEREDELOZZI:
12 A. Yes.
14 President, right?
15 A. Yes.
18 justice?
19 A. Yes.
23 A. Yes.
1 the President.
3 A. Yes.
11 A. Okay.
15 A. Yes.
19 A. Yes.
22 A. Yes.
26 right?
6 A. Yes.
14 at all.
21 A. Yes.
28 A. No.
90
2 lunch now.
10 1:30.
13 -- O0O --
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
91
2 -- O0O --
10 you, sir.
12 examination.
15 just passed along two more documents that I'm going to ask to
17 Suzanna Ryan sent to me. I'm not going to use them in the
4 Broward County.
17 BY MR. SPEREDELOZZI:
22 those generally.
25 or alluded to before the break, which was the idea that there
11 the two questions. What -- and I guess the point that you
13 your analysis that -- and the technical work that you did
16 and we're going to get to that report, but that report later
17 on, which you know at this point I've claimed that that
19 A. Uh-huh.
22 A. Yes.
26 that report?
8 association.
10 for the first and second trials are who in the population just
12 Mr. Dominguez.
17 A. The --
27 BY MR. SPEREDELOZZI:
1 separate questions.
2 A. Yes. And so --
6 Q. As a minor contributor?
9 answered prior?
17 Mr. Dominguez.
4 different answers.
16 of dropout.
18 reports you were talking about just what you see and not the
22 and the DNA types and the evidence in both instances. But in
8 and then omitting loci because the -- could not be used in the
12 question.
16 contributor to the sample using only the data that I see and
19 allelic dropout?
24 Supplementals 2 and 6?
26 and Exhibit 7.
6 have to exclude.
18 relevant.
19 Q. What community?
21 community has, you know, decided that, you know what, the
6 it, yes.
12 yes.
15 SWGDAM, right?
16 A. Yes.
19 Methods.
20 Q. So that's S-W-G-D-A-M?
21 A. Correct.
5 point, yes.
7 A. Okay.
9 BY MR. SPEREDELOZZI:
13 correct?
14 A. Yes.
16 A. Autosomal, yes.
18 moment ago?
19 A. Yes.
24 A. Yes.
26 Rule 3.6.1, and I can find the page here. Page 11, bottom of
27 the page.
28 A. Yes.
101
10 contributors." Right?
11 A. Yes.
13 of plain English?
21 A. Yes.
24 16-3?
6 inclusion.
22 alleles to look at which may not have been present but might
1 evidence.
3 is there low level DNA types? Are there -- you know, which --
4 which markers are they happening at? Which -- are they strong
5 markers? Are they weak markers? Are they markers that I'm
9 mixture?
19 samples?
22 their inclusion, and then the stats that I would do would try
27 off of that and then compare that profile to all the reference
5 BY MR. SPEREDELOZZI:
8 it.
12 here. What is this rule? Can you read it for the Court,
13 4.6.3.
1 inclusion.
4 A. Potentially, yes.
10 inclusion?
16 A. I did.
19 A. Yes.
22 A. Yes.
24 A. Yes.
26 me --
27 A. Protocols?
28 Q. Yeah, SOPs.
106
6 A. Yes.
8 the time?
9 A. Yes.
25 United States and maybe even further than that that were also
27 interpretation procedures?
3 did an audit?
8 DNA?
9 A. Yes.
11 as well?
16 any changes.
24 overnight.
3 A. Yes.
16 BY MR. SPEREDELOZZI:
24 procedures.
26 A. Yes.
28 ///
109
1 BY MR. SPEREDELOZZI:
5 Office, yes.
7 A. Yes.
28 A. Yes.
110
12 A. Possibly.
15 like I said.
18 right?
22 A. Correct.
25 A. Yes.
27 guidelines as well?
28 A. Correct.
111
6 around April?
7 A. Yes.
11 A. Uh-huh.
13 BY MR. SPEREDELOZZI:
15 department?
17 guidelines, yes.
18 Q. And here, I'll publish it. Exhibit 45, Page 150 and
20 A. Yes.
22 guidelines?
24 2011, yes.
27 A. Yes.
2 A. Correct.
9 had previously done, we would have, you know, gone through the
11 Q. Did you --
13 ask --
22 of 2011, did you know that the new San Diego Police Department
27 work and then asked to testify in a case. So I'm not too sure
3 A. Yes.
5 the way, there's some new guidelines that came out five days
8 no.
11 A. Yes.
13 the guidelines that had just changed five days prior to your
14 testimony?
15 A. No.
23 correct?
24 A. Yes.
1 length, yes.
6 to me not once during that day and a half that new guidelines
12 they?
26 A. Yes.
28 Mr. Trocha?
115
1 A. Yes.
3 A. Correct.
13 A. I did.
15 A. Yes.
20 A. Yes.
22 correct?
23 A. Yes.
27 A. Yes.
1 this report?
2 A. Yes, I did.
8 contributors."
9 A. That's correct.
13 stochastic range?
19 reason.
24 this -- the SOPs changed for the San Diego crime lab, San
1 Q. Yes.
6 question is no.
21 A. Correct.
27 A. Right.
1 A. Yes.
4 A. Yes.
13 A. Yes.
20 A. Yes.
22 A. Yes.
24 could I, right?
25 A. Correct.
28 something, you can -- I will work with you; we'll work on the
119
2 A. Yes.
5 that you don't work for either side. You just work for the
6 truth?
7 A. Correct.
14 file it at court?
15 A. Yes.
18 A. Yes.
20 BY MR. SPEREDELOZZI:
24 A. Yes.
26 A. Yes.
6 declaration, right?
12 A. Correct.
13 Q. So then you -- not too long after that you heard from
15 A. Yes.
17 A. They did.
26 A. Yes.
28 address?
121
4 put in the declaration what they wanted to say and then you
5 have to come back and say, you know what, look, this is -- I
8 A. Yes.
12 A. Correct.
15 Attorney's Office?
16 A. Yes.
20 something?
22 it incorrectly.
26 what?
1 caught me.
9 BY MR. SPEREDELOZZI:
12 A. Yes, it is.
15 A. Yes.
17 A. It is.
25 A. I cannot recall.
3 you?
4 A. Yes.
10 A. I'm still not familiar with that code to tell you the
11 truth.
16 A. No.
18 what was not true when you wrote that declaration, right?
20 Q. Yes.
21 A. Yes.
27 matter.
7 A. Before.
12 upset at you?
13 A. No.
18 A. No.
21 A. No.
4 accurate, right?
5 A. Yes.
6 Q. And I'm talking about the one you signed for me.
7 A. Yes.
9 A. Yes.
13 A. Yes.
16 A. Since 2015?
18 A. Yes.
20 guidelines?
22 question, but --
1 question is did we revert back and use the CPI statistic, the
2 answer is no.
3 Q. Well, the crime lab still uses the CPI statistic for
5 A. No.
7 A. At all.
9 pre-April 1st, 2011, was not, in fact, risen from the dead, if
10 you will? It's -- in fact, the new guidelines use a brand new
11 technology?
16 A. Correct.
4 Police Department --
7 A. Okay.
8 Q. -- 2011 --
9 A. Yes.
8 interpretation guideline.
10 the country in certain labs. I can't tell you how many. And
13 yes.
21 A. Correct.
23 right?
7 the case here, you could not today consistent with reasonable
13 BY MR. SPEREDELOZZI:
21 Thank you.
22 BY MR. SPEREDELOZZI:
3 A. Correct.
7 A. Correct.
11 A. Correct.
20 today, the testimony that you gave then, you don't know
3 A. No.
7 A. My report or declaration?
13 A. That's correct.
20 contributors?
21 A. So that's a hypothetical?
27 inconsistent?
4 on its own, I can see how someone would say that they are
11 way, I could not make any comparisons. And I don't see any
13 questions.
7 semantics.
17 inconsistent, sir?
21 at this time.
26 while now.
5 Ms. Ryan.
16 but the issues are fresh right now as far as what I have just
26 just last week and the options that were put before me and my
13 you go ahead and examine him now on what he's been talking
20 call him one time and to examine him one time on the STRmix.
3 CROSS-EXAMINATION
4 BY MS. BANNON:
9 A. Yes.
25 interpretation.
4 A. Yes.
6 you have, what can be used, what can't be used, things like
7 that?
8 A. Yes.
11 right?
19 1999, did you immediately become employed with the San Diego
20 Police Department?
4 A. Yes.
8 right?
9 A. All right.
26 groups.
28 a workshop?
139
5 analysis?
6 A. Several, yes.
8 A. Yes.
17 do with how labs deal with these complex samples and types in
2 September of 2010 that you were familiar with and that you had
8 post?
13 better?
23 A. Yes.
28 based on what?
141
2 mean by "propriety"?
23 of nuanced statement.
6 A. Yes, I was.
9 A. Yes.
13 our method.
17 Q. Would what testing kit one lab uses over another lab
5 were run and data was excluded from certain markers to look to
6 the precise lab, its protocols and its testing kits used?
12 A. Yes.
16 A. Yes, I did.
20 would think.
27 Q. When you had this discussion with Mr. Budowle and you
4 for doing that that gave you any reason to believe it were
5 inappropriate?
6 A. No.
9 the SWGDAM guidelines and then ultimately the San Diego Police
16 A. Yes.
18 through with you towards the very end of your testimony, those
22 testimony at the first trial and the second trial and in your
25 which I'll call question one, is: What are the chances that a
1 right?
2 A. Correct, correct.
5 A. Yes.
18 evidence.
21 your laboratory?
5 only the loci that were inconsistent but other loci that met
11 calculation.
18 and thereby essentially make the stat more common, more people
11 was probably the more relevant question that the Court was
19 defendant, right?
20 A. Correct.
24 A. Yes.
26 questions, right?
27 A. Yes.
1 right?
2 A. Yes.
6 A. Yes.
10 A. Yes.
15 ask?
19 question.
1 Assuming, for purposes of the next question, that the new more
4 asked you to examine the evidence in this case -- that is, the
6 case and answer question one for me, is there anything in your
12 it.
15 judgment that would tell you -- that would cause you to say,
18 A. No.
20 asked you question two and you gave me your answer to question
22 it for you and ask it another way and I asked you question
24 tell me, Madam Prosecutor, I can't answer question one for you
1 question one.
7 A. Yes.
9 have heads and tails on the same side of the coin, correct?
10 A. Correct.
15 to question one and why I could not give you a calculation for
16 question two.
5 up.
8 A. Yes.
15 A. No.
17 guidelines and rules that labs that they oversee must follow?
27 database.
1 A. Correct.
4 agency.
7 A. Yes.
9 results, the one in 65 and the one in 450 from 17-3 and 16-3,
19 1997.
22 saying the whole title -- that directs that the lab must
24 A. No.
17 was using and the fact that it was asking and answering
19 A. No.
4 A. Okay.
15 A. Yes.
17 question two?
18 A. Yes.
20 two, you can't use CPI? That's what it's telling you, right?
21 A. Yes.
24 with prior analysis that had been done which answered question
28 their protocols.
155
4 you as the director -- did the San Diego crime lab review its
6 and reports that were drafted and conclusions that were drawn
7 which answered question one and was applying the CPI statistic
8 in an acceptable manner?
15 question two.
17 Q. Okay.
10 A. Correct.
13 A. I believe so.
14 Q. And --
21 A. Yes.
1 interpreted?
2 A. Yes.
5 data be interpreted?
6 A. Yes.
10 A. Yes.
15 A. Yes.
23 Exhibit No. 11, was not the original that was prepared for you
25 changes?
26 A. Yes, okay.
9 A. Yes.
18 A. Yes.
4 A. Yes.
7 testimony, yes.
9 recess for ten minutes. We'll come back at ten minutes before
10 the hour.
11 (Recess taken.)
19 BY MS. BANNON:
23 A. Yes.
28 A. Yes.
160
3 didn't interpret any points of law, but what you saw in his
6 A. Yes.
18 context.
5 different questions?
9 a stat to that.
22 opinion unless you can give the fact finders some statistical
25 A. Correct.
27 A. Correct.
5 So you may be, as you sit here today and as you did
9 choose to ignore the fact that your lab requires you to assign
11 for that type of DNA mixture, mums the word, you don't get to
22 the question and answer. And I think you said yes, right?
23 A. Yes.
26 know that you could make a comparison because now you can
5 phrased: Between April 1st of 2011 and the date you just gave
6 us, October --
7 A. 2015.
12 context, right?
13 A. Correct.
15 A. Yes.
19 A. Correct.
26 A. Correct.
2 that between 2011 and 2015 you couldn't make these comparisons
6 A. Yes.
10 Journal of Science and Justice -- remind me, did you read this
11 one?
14 of, however?
16 cognitive bias.
19 guidelines, that is, that they didn't have the 17 selected DNA
20 examiners using the same set of protocols that was used by the
3 the same page with the interpretations and the stats that they
8 same conclusion and the same stat for that piece of evidence
11 particular study?
13 And the purpose of this -- this research that Dr. Dror does is
16 sort of the main gist of his research is to get people who are
19 information that they get and they give their analysts so that
21 cognitive bias.
26 Georgia.
10 your evidence.
11 Q. And that didn't happen in this case, did it? And I'm
24 that do the technical review that just look at the data that
5 information.
8 record.
13 crime lab, does the investigative team come and sit down with
14 the folks in the crime lab and say, we like this guy for this
27 taken away from Mr. Dror's study, Exhibit 31, one of the
5 A. Yes.
14 their interpretation.
17 taken from, you know, the waistband of his -- his pants when
19 to the mixture. I have to look at the data and then let the
26 A. No.
1 of this paper, Mr. Budowle, we've spoken about him, and John
7 A. Yes.
11 A. Yes.
13 read?
14 A. No.
15 Q. Oh.
24 programs do.
2 A. Correct.
5 bottom of the right-hand column that begins with "If the DNA
8 A. Yes.
9 Q. -- correct?
13 Mr. Budowle, by Mr. Buckleton, by Ms. Ryan who we'll hear from
17 scientifically invalid?
22 some of the assertions here and ask you if you -- if you still
7 and 2015 was that the question that I was answering changed
12 can handle the dropout and handles the answer to question two,
16 item 16-2, 16-3 and 17-3 six months after he did, your answer
18 right?
19 A. Correct.
3 sample still are the same between, you know, pre-April 2011
16 exclusion.
21 A. Correct.
25 item four.
3 guidelines.
6 A. No.
8 lab, your own SDPD crime lab guidelines prevent you from
24 A. No.
14 the same DNA testing kit to -- and the same genetic analyzers
20 A. That is true.
24 henceforth?
25 A. No.
27 and answer question one rather than question two, would you be
2 A. No.
5 nor the change in P.D. lab policy changed the quantity of the
11 was the same physical evidence that existed at the time of the
13 A. Yes.
15 A. Yeah, I think --
16 Q. I should say the 16-3 and 17-3 were new in the second
17 trial?
22 A. Yes.
25 right?
26 A. Yes.
28 that you either -- that the lab either adopted in whole or had
177
2 right?
5 that was there, and I think there was two that we felt we
9 A. Yes.
21 A. We did.
24 minutes?
11 -- O0O --
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
179
1 STATE OF CALIFORNIA )
) SS.
2 COUNTY OF SAN DIEGO )
7 hereby certify:
14
17
18
19
20
21 ____________________________
23
24