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1

1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 IN AND FOR THE COUNTY OF SAN DIEGO

3 DEPARTMENT 57 HON. CHARLES G. ROGERS, JUDGE

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

26 REPORTED BY: ADELA MEDINA, CSR 11964, RPR


OFFICIAL COURT REPORTER
27

28
2

1 CHRONOLOGICAL INDEX OF WITNESSES

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
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3

1 INDEX OF EXHIBITS IDENTIFIED

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

11 12 DECLARATION OF SHAWN MONTPETIT 122 8 1


2/11/2016
12
14 MEMORANDUM FROM SDPD FORENSIC 108 27 1
13 BIOLOGY UNIT TO SDCDA RE CHANGES
IN MIXTURE INTERPRETATION
14 GUIDELINES 5/4/2011

15 15 SWGDAM MIXTURE INTERPRETATION 100 8 1


GUIDELINES 1/14/2010
16
30 CURRAN, JM AND BUCKLETON, J. - 52 3 1
17 INCLUSION PROBABILITIES AND
DROPOUT. JOURNAL OF FORENSIC
18 SCIENCE 9/2010

19 31 DROR IE AND HAMPIKIAN G. - 79 11 1


SUBJECTIVITY AND BIAS IN FORENSIC
20 DNA MIXTURE INTERPRETATION.
SCIENCE AND JUSTICE 2011
21
32 BEIBER F., ET AL - ARTICLE ON 83 3 1
22 EVALUATION OF FORENSIC DNA
MIXTURE EVIDENCE; PROTOCOL FOR
23 EVALUATION, INTERPRETATION, AND
STATISTICAL CALCULATIONS USING
24 THE COMBINED PROBABILITY OF
INCLUSION - BMC GENETICS JOURNAL
25
33 PCAST, FORENSIC SCIENCE IN CRIMINAL 87 8 1
26 COURTS; ENSURING SCIENTIFIC
VALIDITY OF FEATURE-COMPARISON
27 METHODS 2016

28
4

1 INDEX OF EXHIBITS IDENTIFIED

2
PAGE LINE VOL
3
45 EXCERPTS FROM SDPD TECHNICAL 111 12 1
4 MANUAL, PAGES 150 AND 163

5 46 AMERICAN SOCIETY OF CRIME LAB 92 8 1


DIRECTORS, LABORATORY
6 ACCREDITATION BOARD RE
INVESTIGATION FILES INTO BROWARD
7 SHERIFF'S OFFICE CRIME LABORATORY
4/16/2016
8
47 FINAL AUDIT REPORT FOR AUSTIN 92 9 1
9 POLICE DEPARTMENT FORENSIC
SERVICES DIVISION DNA SECTION
10 7/8/2016

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5

1 San Diego, California; Monday, May 22, 2017; 9:28 a.m.

2 -- O0O --

3 THE COURT: Ladies and gentlemen, good morning.

4 Before the Court is the petition of Florencio Dominguez for a

5 writ of habeas corpus. We're convened today to begin

6 evidentiary hearings on this matter. The case is HC22238.

7 Mr. Dominguez and his counsel are the petitioner,

8 that means the equivalent to the plaintiff in a civil action.

9 I will, therefore, ask for counsel's appearance first on

10 behalf of Petitioner.

11 MR. SPEREDELOZZI: Good morning, Your Honor.

12 Matthew J. Speredelozzi for Petitioner, Florencio Dominguez.

13 THE COURT: Mr. Speredelozzi and Mr. Dominguez, good

14 morning.

15 Appearing on behalf of Respondent District Attorney.

16 MS. BANNON: Good morning, Your Honor.

17 Christine Bannon specially -- or sorry, Christine Bannon

18 appearing for the People, Respondent.

19 THE COURT: And, Ms. Bannon, good morning to you as

20 well.

21 As counsel know, we have had a number of conferences

22 to get to this point. We're about to begin, I think, the

23 evidentiary hearing. At some point, if it's of assistance to

24 counsel, the Court intends to take judicial notice of the

25 trial transcripts from the previous trials as well as the

26 Court's files and documents.

27 I believe it was contemplated today we would begin

28 with the testimony of Mr. Montpetit. I would also invite,


6

1 however, both counsel to make an opening statement or other

2 verbal presentation to help orient the Court as to where we're

3 going to go.

4 It's the petitioner's burden. So, Mr. Speredelozzi,

5 over to you.

6 MR. SPEREDELOZZI: Thank you, Your Honor.

7 So the -- the issues that we're presenting today,

8 there are -- there are three of them, the two of which are, I

9 think, most -- going to be focused on the most and the third

10 one, I believe, will be mostly submitted on the papers that

11 have been filed with the Court on this matter.

12 The first issue is whether a witness Shawn Montpetit

13 at the retrial on this matter provided false evidence within

14 the meaning of Penal Code 1473(e)(1) because Mr. Montpetit

15 subsequently repudiated his trial testimony.

16 The second issue will be that same witness, whether

17 Mr. Montpetit -- whether the testimony that he gave

18 constitutes false evidence within the meaning of Penal Code

19 1473(e)(1) because the testimony that he gave was undermined

20 by later scientific research or technological advances.

21 And then the third issue is, if the petitioner proves

22 either 1 or 2 that I've just presented, whether that testimony

23 was substantially material or probative on the issue of guilt.

24 And as I said that on that third issue, I believe

25 that the Court, having -- having actually presided over this

26 trial, will be in a very good and unique position to decide

27 that issue. And I think that issue has been briefed by the

28 parties at length in several briefings. So that one, we won't


7

1 be presenting a ton of material on that.

2 But the first issue -- the first witness that we're

3 going to call is that witness I was describing, Mr. Montpetit.

4 What we're first going to go over with Mr. Montpetit

5 is on the issue of materiality. We're going to explain what

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

8 and, you know, how it was, in fact, not as compelling as the

9 evidence that was presented at the second trial.

10 And the reason that we're going to go through that is

11 to show the Court how material it was. Because, as the Court

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.

16 We are then going to show you that the testimony that

17 Mr. Montpetit gave was, in fact, undermined by later

18 scientific research, later scientific technological advances.

19 We're going to explain the reasons why his testimony has been

20 undermined by scientific reasons. We're going to get very

21 specific about that. And then we're also going to show what

22 science, what journal articles have been written, who's

23 commented about that -- that method since the trial ended and

24 show you that it, in fact, has been undermined.

25 And we attempt to show you that if the trial was

26 today, that evidence would not pass even a Kelly-Frye

27 admissibility test.

28 Then we are going to show you that, in fact,


8

1 Mr. Montpetit did repudiate his trial testimony.

2 Mr. Montpetit is -- we're going to show that he's the

3 technical leader at the crime lab in San Diego for DNA

4 purposes and that he's the one who initiated the change in the

5 standard operating procedures which were based on the change

6 in guidelines from the scientific working group for DNA

7 methods and that based on both of those changes, his testimony

8 fundamentally changed in favor of the petitioner in this case.

9 The next witness we're going to present to the Court

10 is Suzanna Ryan. Suzanna Ryan will discuss her opinions as to

11 whether or not -- as to those issues, whether or not the

12 testimony that Mr. Montpetit gave at the trial has been

13 undermined and as well as whether it was repudiated by him.

14 The -- she's also going to discuss three cases in

15 which labs were conducting interpretations of DNA samples that

16 were similar to what the testimony was in this case,

17 Mr. Montpetit's testimony at the trial, and how they faced

18 some sort of discipline for that, and we hope that will show

19 you that that type of evidence has been undermined.

20 Most importantly, what we want to show you is that

21 the testimony given at the retrial in this matter is, in fact,

22 invalid, is, in fact, poor science and does lead to false

23 inclusions, does lead to false identifications, and that's

24 really the most important point for the hearing is that we

25 have evidence that just isn't good, from a forensic purposes,

26 and could and might have in this case led to a wrongful

27 conviction of an innocent person.

28 I would also like to just reiterate as the Court, I'm


9

1 sure, is fully aware of the gravity of the issues presented

2 because Mr. Dominguez is not the only person to which this

3 issue affects. I, as his counsel, have no way of quantifying

4 the amount of people who have been convicted of crimes that

5 this evidence has been used against. There's no way for me to

6 know that, but common sense tells us that it's probably quite

7 a few.

8 And so the issues that we're going to present are

9 extremely important for the State of California, society, the

10 scientific community, and certainly any of the defendants who

11 this type of evidence was used against. And so the gravity of

12 the situation could not be more serious.

13 Thank you.

14 THE COURT: Mr. Speredelozzi, thank you.

15 Ms. Bannon, would you like to make remarks now or

16 reserve it?

17 MS. BANNON: I would like to make my remarks now.

18 THE COURT: Thank you.

19 MS. BANNON: And -- thank you, Your Honor.

20 While it's not my usual style, I have prepared my

21 opening because we are dealing with such specific information,

22 and I believe it's important to frame our questions precisely

23 so that we are all analyzing the same questions and know where

24 the answers fall.

25 Based on the Court's instructions at a prior

26 readiness hearing in anticipation of this evidentiary hearing,

27 the Court directed that we would be answering two questions at

28 this hearing.
10

1 Question number 1 is: Has new evidence been

2 discovered after trial that is not merely cumulative,

3 corroborative, collateral or impeaching?

4 If so, is that new evidence of such decisive force

5 and value that it would more likely than not have changed the

6 outcome of the trial?

7 The Court is going to hear testimony that establishes

8 the answer to this question is no on either account.

9 The mixed DNA profile developed from evidence items

10 16-3 and 17-3 at issue in this petition as well as the DNA

11 profiles of the petitioner, Mr. Lopez, the victim of this

12 homicide, and several other persons involved in the case is

13 the physical evidence. It has always existed. It was not

14 discovered after trial.

15 The trial opinion at testimony of Mr. Montpetit

16 regarding his conclusions that this petitioner can be included

17 as a possible minor contributor, which was his opinion

18 testimony, to the mixed DNA profiles developed from evidence

19 items 16- and 17-3 and the statistic applied to that

20 conclusion was obviously not discovered after trial since he

21 testified about it.

22 The Court will hear that after trial Mr. Montpetit

23 was asked to reexamine evidence items 16-3 and 17-3 applying

24 newly adopted guidelines for the interpretation of results

25 from mixed DNA profiles such as those presented in 16-3 and

26 17-3. Those laboratory guidelines were not in place at the

27 crime lab at the time of the original testing of those items

28 in trial.
11

1 The Court will learn from Mr. Montpetit that

2 laboratory guidelines are always being revised and reviewed

3 and adjusted as necessary in light of particular facts and

4 circumstances and that the adoption of these new guidelines at

5 issue in this petition was, among other things, the result of

6 the decision to ask and answer a different question when

7 analyzing complex DNA mixtures such as those present in 16-3

8 and 17-3 than the lab was asking and answering at the time of

9 trial in this case.

10 When this different question was applied to the data

11 from 16-3 and 17-3, the statistical model available to the lab

12 at the time, the combined probability of inclusion, referred

13 to shorthandedly as CPI, was not the best model to use to

14 answer that question.

15 A better statistical model required a better

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

18 the policy position that even if a person's DNA did appear to

19 be present in the crime scene evidence mixed profile that was

20 developed, the lab would not report results that included the

21 person as a possible minor contributor without being able to

22 assign a statistic to that conclusion.

23 Therefore, results under the new guidelines,

24 guidelines that were answering the new question being asked of

25 mixed DNA profiles such as those present in 16-3 and 17-3,

26 would simply be reported as either inconclusive or unable to

27 calculate or compare.

28 The Court will hear and the trial transcript in the


12

1 retrial bears out that this scientific discussions and

2 research evidence within the scientific community that led to

3 the change at SDPD in the question it was asking and

4 answering, and by extension the statistical model it was

5 using, when dealing with mixed DNA samples, existed at the

6 time of trial.

7 The record will bear out and this evidentiary hearing

8 will highlight that this evidence was presented at trial

9 through the cross-examination of Mr. Montpetit. The Court

10 will, therefore, see that the answer to whether, quote, new

11 evidence was discovered after trial that either did not exist

12 or could not reasonably have been discovered at the time of

13 trial is simply no.

14 Question number 2 that this Court has directed we

15 elicit evidence to answer is: Was false evidence introduced

16 against Petitioner through the opinion testimony of

17 Shawn Montpetit regarding evidence items 16-3 and 17-3?

18 The answer to this question -- I'm sorry. To answer

19 this question, we must ask two subquestions which serve to

20 define what false evidence is. Has Mr. Montpetit repudiated

21 his opinions given at trial? Has he himself done that? Or

22 has Mr. Montpetit's testimony been undermined by some later

23 scientific research or technological advance?

24 If either question is yes, then the Court must answer

25 that third question whether the false evidence was

26 substantially material or probative.

27 However, this Court will find at the close of the

28 hearing that the answer to each of these subquestions is no;


13

1 therefore, the answer to the question regarding false evidence

2 is also no.

3 The key, again, for the Court to understand as it

4 listens to the testimony relating to false evidence is that

5 there are, again, two different questions that were being

6 asked and answered in this case regarding DNA mixtures.

7 One question was being asked and answered under the

8 old guidelines for which there was a proper statistical model

9 to use and a defensible scientific reason for including or

10 excluding data at arriving at that statistic.

11 Under the, quote, new 2011 guidelines, a different

12 question is being asked and answered in mixture analysis.

13 Mr. Montpetit will explain that the answer to each question

14 can mutually coexist. He will explain that the old question

15 asked at trial was a scientifically valid question and the

16 answer given at trial was a scientifically defensible and

17 valid answer.

18 The new question being asked and answered with the

19 implementation of the 2011 guidelines has been determined in

20 the scientific community, however, to be a slightly more

21 relevant question to ask.

22 Mr. Montpetit will further explain that asking a new

23 slightly more relevant question does not invalidate the prior

24 question asked and answered or prevent him or any other

25 analyst from answering that question if asked again.

26 After trial, when Mr. Montpetit was asked by

27 Petitioner to reinterpret evidence item 16-3 and 17-3 asking

28 this new and different question under the lab's new


14

1 guidelines, his answer could only be either inconclusive or

2 cannot be calculated because at that time the CPI statistical

3 model was not the best statistical model to use to answer that

4 new question. As such, a statistic could not be assigned to

5 the observed data and conclusions drawn from that data.

6 Following the lab's policy, if a statistic could not

7 be assigned to give significance to the conclusion drawn from

8 the data, then the results must be reported as inconclusive or

9 cannot be calculated.

10 Mr. Montpetit will explain that a better statistical

11 model did potentially exist, that of a likelihood ratio. But

12 to apply that model at the time, the lab needed a better

13 calculator than it had. And "better calculator" is a

14 shorthand term for the technical equipment used.

15 Subsequently, the lab adopted new software that not

16 only could break down DNA -- a DNA mixture to its component

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

19 the lab needed in order to apply the more appropriate

20 statistical model, that of likelihood ratio, to the results

21 obtained in complex DNA mixture cases in order to be able to

22 answer this new question which the lab determined in 2011 that

23 it would be asking when evaluating these types of mixtures.

24 That software you will learn is called STRmix,

25 pronounced STRmix, spelled S-T-R mix.

26 It's not the only software in existence that analyzes

27 complex DNA mixtures, but it is the one that the SDPD lab

28 adopted after conducting its internal validation studies.


15

1 Validation studies are conducted on any new testing kit sought

2 to be implemented by the lab.

3 The Court will learn that the software STRmix is not

4 a new science or a new scientific method. It does not apply

5 any new mathematical principles. Rather, you'll hear from

6 Mr. Montpetit that the DNA profiles are still developed using

7 longstanding scientific methods and that the raw data produced

8 is then input into the STRmix software which examines the

9 data, develops a profile, and produces a statistic for that

10 profile using a likelihood ratio.

11 Likelihood ratio is not any form of new math. It is

12 a mathematical statistical principle that has been around for

13 decades and which has been used in many other scientific

14 fields.

15 Again, STRmix is neither new science nor new math.

16 You'll hear that STRmix is used by labs in several countries,

17 several U.S. states, including New York's Office of Medical

18 Examiner, this country's largest forensic criminal laboratory,

19 the San Diego Sheriff's crime lab, the United States Army and

20 the FBI crime lab.

21 Further, you'll learn that most labs are moving

22 toward the direction of using likelihood ratio in their

23 analysis of complex mixtures whether it be STRmix or some

24 other software package.

25 In 2016 Mr. Montpetit was again asked to re-evaluate

26 items 16-3 and 17-3 applying its 2011 guidelines for mixture

27 interpretation because by that time the lab had indeed tested,

28 validated and adopted STRmix for the use in analyzing complex


16

1 DNA mixtures. Mr. Montpetit now had the tool, that better

2 calculator, that he needed to assign a statistic to his

3 original and ongoing conclusion that the petitioner is a

4 possible minor contributor to the DNA mixtures in those

5 samples.

6 He will testify that the results from STRmix

7 corroborated his original trial opinion regarding samples 16-3

8 and 17-3.

9 As this Court listens to the testimony, it is

10 paramount to keep the questions that were being asked and

11 answered at the two points in time separate. Mr. Montpetit

12 will explain asking and answering a different question does

13 not invalidate the first question that was asked and answered.

14 Further, when the latest question is able to be

15 answered fully with the latest statistical models, the Court

16 will see that the conclusions now about whether petition --

17 excuse me -- Petitioner is a possible minor contributor to the

18 questioned samples is the same as it was at trial that he

19 indeed is a possible minor contributor.

20 This Court's confidence in the jury's verdict

21 rendered at trial, therefore, should not be shaken, and

22 ultimately this petitioner's habeas corpus should be denied.

23 Thank you.

24 THE COURT: Ms. Bannon, thank you.

25 Mr. Speredelozzi, are you prepared to call your first

26 witness?

27 MR. SPEREDELOZZI: Yes, Your Honor.

28 THE COURT: You may do so.


17

1 MR. SPEREDELOZZI: Petitioner calls analyst

2 Shawn Montpetit.

3 THE COURT: You may.

4 THE CLERK: Do you solemnly state that the evidence

5 you shall give in this matter shall be the truth, the whole

6 truth, and nothing but the truth so help you God?

7 THE WITNESS: I do.

8 THE CLERK: Thank you. Please have a seat at the

9 witness stand.

10 THE COURT: Good morning, sir.

11 THE WITNESS: Good morning, Your Honor.

12 MR. SPEREDELOZZI: If I could just have one second to

13 get my projector fired up.

14 THE COURT: Yeah. No worries.

15 THE CLERK: Can you please state your full name and

16 spell your first and last name for the record.

17 THE WITNESS: My name is Shawn Montpetit. Shawn is

18 S-H-A-W-N. Montpetit is M-O-N-T-P-E-T-I-T.

19 THE CLERK: Thank you.

20 THE COURT: Thank you.

21 MR. SPEREDELOZZI: It looks like it's warming up. Do

22 we have the Court exhibits available so I can -- might be

23 helpful to give those to the witness.

24 MS. BANNON: Can I just look through the notebook

25 really quick? Just real quick.

26 MR. SPEREDELOZZI: Sure.

27 MS. BANNON: And this is the complete set of what you

28 sent me over the weekend?


18

1 MR. SPEREDELOZZI: Yes, ma'am. As well as an exhibit

2 list.

3 MS. BANNON: Thank you.

4 MR. SPEREDELOZZI: Thank you.

6 SHAWN MONTPETIT,

7 called as a witness on behalf of the Petitioner,

8 having been first duly sworn, testified as follows:

10 DIRECT EXAMINATION

11 BY MR. SPEREDELOZZI:

12 Q. Good morning, Mr. Montpetit.

13 A. Good morning.

14 Q. I'm going to -- you might have some of this material,

15 but these are our exhibits that we've marked -- or that I've

16 marked in this case. And I'll be referring to these exhibits

17 during your examination. I'll also be presenting them on this

18 projector here.

19 Can you see that projector all right?

20 A. I can.

21 Q. Okay. And I do have the ability to zoom in on

22 this -- these documents too if some of the type is small. So

23 you just let me know your comfort level on that. Okay?

24 Sir, you were the criminalist in the case that we're

25 here today, the People versus Florencio Dominguez, correct?

26 A. Correct.

27 Q. What is your -- what is your job?

28 A. I am the DNA technical manager of the San Diego


19

1 Police Department crime lab's forensic biology unit.

2 Q. The technical manager, does that also include being

3 an analyst?

4 A. Yes. Part of my job is to perform case work

5 analysis.

6 Q. What are your duties as the technical manager?

7 A. In addition to performing case work analysis, I also

8 am responsible for the -- the policies and procedures of the

9 laboratory. I'm also responsible for maintaining our

10 accreditation standards. And I'm also responsible for

11 training of new analysts.

12 Q. And how long have you been in this position, sir?

13 A. I've held the official title since September of 2008.

14 I've been in the position since probably September of 2006.

15 Q. You've been the technical manager since 2008?

16 A. With -- with the title, yes. But I was acting as the

17 technical lead since 2006.

18 Q. You were doing the job just not getting paid for the

19 job since 2006?

20 A. Correct.

21 Q. I assume you have to be -- have some kind of minimum

22 education to do this job, correct?

23 A. To be the technical manager?

24 Q. To be the -- to be the technical manager, to be an

25 analyst, to be a forensic scientist?

26 A. Yes.

27 Q. What kind of education do you have?

28 A. To be a criminalist within the DNA section, you need


20

1 a minimum of a bachelor's degree in a -- or a hard science

2 like biology, chemistry or physics.

3 To be a technical lead, you need to have a minimum of

4 a master's degree and three years of experience as an analyst.

5 Q. Where did you get your bachelor's degree?

6 A. Concordia University in Montreal, Canada.

7 Q. And what was that in?

8 A. It was in biology.

9 Q. And you must have a master's degree as well?

10 A. I have a master's of science in forensic science from

11 the University of Alabama at Birmingham.

12 Q. And when did you achieve that?

13 A. I graduated in 1999.

14 Q. And what kind of on-the-job experience do you have?

15 A. Well, I went through training in DNA analysis methods

16 in Alabama when I worked for the Alabama Department of

17 Forensic Sciences.

18 I also went through several internal and external

19 trainings in DNA analysis methods since joining the police

20 department in San Diego.

21 Q. Did you start -- when did you start at the police

22 department? It wasn't 2006. It was before that, right?

23 A. It was in 1999.

24 Q. 1999. So you've been a forensic scientist with the

25 crime lab for approximately 18 years?

26 A. Correct.

27 Q. And you remember doing case work on this case, People

28 versus Florencio Dominguez, right?


21

1 A. Yes.

2 Q. The lead detective on the case was Mike Lambert?

3 A. That's correct, yes.

4 Q. And he assigned you some forensic tasks on this case,

5 correct?

6 A. He requested analysis to be done. My supervisor is

7 the one who assigned the case to me, yes.

8 Q. You -- and after the case work was completed, you

9 then gave testimony at a trial on this matter in October of

10 2010?

11 A. I gave testimony in two trials on this.

12 Q. One was in October of 2010 and the second was in

13 April of 2011?

14 A. That sounds right, yes.

15 Q. You prepared a number of reports on this case

16 since -- before the trials, after the trials; is that fair?

17 A. I think I have 10 or 11 reports on this case, yes.

18 Q. I'm showing you what's been marked as Petitioner's

19 Exhibit 3. It's up on the screen. It's also in front of you

20 under tab 3, if you want to have a paper copy to refer to as

21 well.

22 This is supplemental report 2, is it not?

23 A. Yes.

24 (Exhibit No. 3 identified for the record.)

25 BY MR. SPEREDELOZZI:

26 Q. And this is a report authored by you, correct?

27 A. Correct.

28 Q. This report was authored June 1st, 2010?


22

1 A. Yes.

2 Q. And this was prior to the trial testimony you gave on

3 this case in October of 2010, correct?

4 A. Correct.

5 Q. And your testimony that you gave at that trial in

6 October of 2010, was that testimony consistent with the

7 information that's contained in this report?

8 A. Yes.

9 Q. In this report you analyzed two samples that were

10 taken from a pair -- actually, I think four samples taken from

11 a pair of black leather gloves, correct?

12 A. Yes. Amongst other items, yes.

13 Q. Okay. You came to some forensic conclusions about

14 those samples, correct?

15 A. Yes.

16 Q. Samples 16-1 and 17-1, what are those?

17 A. Those were swabs of blood stains from the outside

18 surface of the gloves.

19 Q. Okay. And your conclusion was that who was the major

20 contributor of those -- that sample?

21 A. Moises Lopez was the predominant contributor to those

22 samples.

23 Q. Okay. And you knew from information that you got

24 from the police department that that was the victim in this

25 case, right?

26 A. Yes. That's who was listed as the victim on the

27 request I received.

28 Q. And then you also analyzed two other samples, 16-2


23

1 and 17-2; is that correct?

2 A. Yes.

3 Q. And what is -- let's start with 16-2. What is that?

4 A. It's a swab from the inside surface of the gloves.

5 Q. The inside of the -- of the leather gloves?

6 A. Yes.

7 Q. So same gloves as 16-1 and 17-1, just a different

8 area on the gloves?

9 A. Right. The gloves were items 16 and 17. And 16-1

10 was the blood stain from the outside. 16-2 was swabs of the

11 inside of that glove.

12 Q. And 16-2, was that the right glove or was that the

13 left glove?

14 A. Item 16 was the right glove.

15 Q. And so 16-2 was the swab of the inner right glove?

16 A. Correct.

17 Q. And 17-2 then was the inside of the left glove?

18 A. Correct.

19 Q. The reason that you swabbed the inside of the glove

20 was determine -- to determine what?

21 A. To determine if I could obtain DNA from people that

22 may have been wearing the gloves.

23 Q. So it was to identify the wearer of the gloves?

24 A. Correct.

25 Q. And what was your conclusion with regard to -- let me

26 back up and just lay the foundation.

27 During your analysis, you also had a reference sample

28 from Petitioner in this case, right?


24

1 A. Yes, I did.

2 Q. And that was the defendant in the case that you were

3 working on doing technical work for, right?

4 A. Yes.

5 Q. And his name is Florencio Dominguez?

6 A. That's correct.

7 Q. You know -- you've seen that person before but just

8 because you've testified in trial, right?

9 A. Correct.

10 Q. You're not like a witness other than the work you did

11 in this case, right?

12 A. Correct.

13 Q. So when you compared Mr. Dominguez's reference sample

14 to 16-2, are your conclusions stated in this report?

15 A. They are.

16 Q. And what were your conclusions?

17 A. I included Florencio Dominguez as a possible minor

18 contributor to the swab from the inside of the right glove.

19 Q. And is that what you put in Paragraph 2 of this

20 report right here, Florencio Dominguez is a possible minor

21 contributor?

22 A. In Paragraph 2 of Conclusion 2, yes.

23 Q. And you assigned a CPI statistic to that opinion,

24 correct?

25 A. Yes, I did.

26 Q. Before we go any further, can you just explain what a

27 CPI statistic is.

28 A. CPI stands for the combined probability of inclusion.


25

1 It is the statistic that calculates the -- basically the

2 combination of DNA types or the frequency of the combination

3 of DNA types to try and establish as the significance or

4 weight to any sort of inclusion that we would provide for

5 mixtures.

6 Q. What -- let's bare that out so we have just a solid

7 understanding of that.

8 The CPI statistics ask the question: What are the

9 odds that a person selected at random would be consistent with

10 the profile, correct?

11 A. That -- that's one question that the CPI can address,

12 yes.

13 Q. Okay. And so that's the statistic you gave here in

14 Paragraph 2, correct?

15 A. Yeah. So the -- basically the stat that I was --

16 that I put in that report answers the question who would be

17 included to the same degree as Florencio Dominguez.

18 Q. You use the word "to the same degree" --

19 A. Yes.

20 Q. -- because you -- you -- you only used certain loci

21 in your analysis, right?

22 A. Correct.

23 Q. And you know what, I'm going to get into that later

24 on in the analysis, but for now, I just want to review the

25 results. So we'll talk about the use and selective use of

26 different loci later in your testimony, but for now, let's

27 just talk about the results of your opinion, okay?

28 A. Okay.
26

1 Q. The results of your opinion is stated in the report,

2 and it's 1 in 200 in the U.S. Caucasian population. 1 in 570

3 in the African American population. And 1 in 10 in the

4 Hispanic population. Is that correct?

5 A. 1 in 110.

6 Q. Excuse me. 1 in 110 in the Hispanic population.

7 A. Correct.

8 Q. That means that if you -- if you chose 110 people, on

9 average one of those people would just by random chance match

10 the -- the mixture profile that you got from 16-2 just by

11 chance, right?

12 A. Yes. At all the markers that I calculate it for.

13 Q. Only the markers that you use to calculate that?

14 A. Correct.

15 Q. So you specifically omitted some genetic markers when

16 you made that calculation?

17 A. Yes.

18 Q. So the population -- the Hispanic population of

19 San Diego is roughly what, do you know?

20 A. I have no idea.

21 Q. Would you agree or would you be able to accept that

22 it's today approximately 1.3 million, about one-third the

23 population of San Diego County?

24 A. If you say so. I don't know what it is.

25 MS. BANNON: Objection. Objection, Your Honor. Move

26 to strike.

27 THE COURT: Answer will remain. And Mr. Speredelozzi

28 can ask the Court to take judicial notice at a later time.


27

1 MR. SPEREDELOZZI: Okay.

2 BY MR. SPEREDELOZZI:

3 Q. Let's assume hypothetically that there's 1.3 million

4 people that are Hispanic descent in San Diego. How many

5 people would randomly match the glove?

6 A. Probably somewhere in the neighborhood of 10,000.

7 Q. You're basically just dividing the number I gave you

8 by 110?

9 A. Correct.

10 Q. So this report and the analysis and everything that

11 we just went over about 16-2, you testified to that sometime

12 in October of 2010 at Mr. Dominguez's jury trial, correct?

13 A. Correct.

14 Q. Now, item 17-2, you also compared Mr. Dominguez's --

15 his -- his profile with that mixture sample, correct?

16 A. Yes.

17 Q. And what were your opinions on that mixture sample?

18 A. Well, 17-2 there really wasn't enough information to

19 make any sort of statements about minor contributors. So

20 actually I don't think I have a written conclusion about 17-2

21 in my reports.

22 Q. Your conclusion was that it was inconclusive,

23 correct?

24 A. Yes.

25 Q. Because the mixture sample that you obtained from

26 17-2 was, in fact, just not enough information in it?

27 A. It was mostly DNA from the victim in the case and not

28 enough information from anybody other than the victim.


28

1 Q. So the only evidence at the first trial was one glove

2 but not the other that you could conclude Mr. Dominguez was a

3 potential minor contributor, correct?

4 A. Correct.

5 Q. In fact, at the -- at the first trial you actually

6 did two swabbings of 16-2, didn't -- did you not? Do you

7 remember that? And I'm showing you now Page 3 of Exhibit 3.

8 Does that -- does that help you remember?

9 A. I'd have to check my notes. I don't think that was

10 the second swabbing. I think it was a second analysis of the

11 first swabbing.

12 Q. Oh, I think you're right. So basically same physical

13 evidence, same swab, but you ran it through the PCR process

14 two times?

15 A. Correct.

16 Q. Okay. Did you do anything different when you ran

17 16-2 the second time?

18 A. Yes, I put more DNA into the PCR.

19 Q. Okay. And just so we can all understand what we're

20 talking about here, what is this PCR thing you keep talking

21 about?

22 A. PCR stands for preliminary chain reaction. It is the

23 technology that we use and it forms the foundation for our DNA

24 analysis methods and it functions like a little molecular

25 Xerox machine and it copies sections of the DNA over and over

26 again until we have enough material for our instruments to

27 detect.

28 Q. And the result that you get is -- the result you get
29

1 from taking biological material and running it through the PCR

2 process, the result you get is called an electropherogram?

3 A. Ultimately, yes, we view the results, and the results

4 we view are in electropherograms.

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

7 to that swabbing two times, right?

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

11 mixture profile you obtained?

12 A. I got similar results, but I did put in more DNA for

13 the second analysis and so I got more DNA types the second

14 time.

15 Q. Okay. And the first analysis, the first PCR analysis

16 that you did on 16-2, that just like 17-2 you were

17 inconclusive on making any inclusions in that, correct?

18 A. Well, since I analyzed it the second time, I didn't

19 really do any comparisons to the first analysis because the

20 second one had more information.

21 Q. Okay. Fair enough. Thank you, sir.

22 So then -- then we move on to -- the trial's over,

23 okay. As an analyst, do you care what happens to -- at the

24 trial, the result?

25 A. No.

26 Q. Okay. So you didn't really care or just wasn't --

27 it's just not part of your work to try and understand what the

28 verdict is or -- you're not there to influence the verdict.


30

1 You're just there to tell the truth and tell your science,

2 right?

3 A. I provide the information to the Court, and jury or

4 judge does what they want with that information.

5 Q. Okay. But you did ultimately learn that -- what

6 happened at the first trial because you had to testify at a

7 second trial?

8 A. Correct.

9 Q. You testified at that second trial in April of 2011,

10 right?

11 A. Yes.

12 Q. But prior to that, you did further analysis on these

13 two gloves?

14 A. Correct.

15 Q. And in the exhibit binder, there is Exhibit 11. If

16 you want to open that up, you can refer to that. I'm going to

17 also pull it up on the screen here.

18 Excuse me, did I say 11?

19 THE CLERK: Yes.

20 BY MR. SPEREDELOZZI:

21 Q. Exhibit 7. This document is your -- you were the

22 author of this document as well, correct?

23 A. Correct.

24 (Exhibit No. 7 identified for the record.)

25 BY MR. SPEREDELOZZI:

26 Q. This is supplemental report 6, correct?

27 A. Yes.

28 Q. You authored this report on February 16, 2011,


31

1 correct?

2 A. Yes.

3 Q. You had done some case work prior to February 16,

4 2011, on the two gloves, item 16 and item 17, correct?

5 A. Correct.

6 Q. What case work did you do?

7 A. I did a reanalysis of the gloves to, again, attempt

8 to obtain DNA from people or persons that were wearing the

9 gloves.

10 Q. Okay. You say reanalysis. Can you be more specific?

11 A. I reswabbed the insides of the gloves.

12 Q. Okay. So unlike in the first report where you just

13 took the same swab and ran the PCR process twice, this time

14 you actually did a new swab for the gloves?

15 A. Correct.

16 Q. And you swabbed different areas than you'd had at the

17 first trial?

18 A. I swabbed -- I believe I swabbed the same areas, but

19 I also included additional areas.

20 Q. And the areas that you swabbed are included in this

21 report here, Exhibit 7, supplemental report 6, correct?

22 A. Correct.

23 Q. And you describe that right here on Page 1 under

24 "evidence examined," right?

25 A. Yes.

26 Q. And the document says that you swabbed the inside

27 surface of the fingers, the palm, the knuckle areas of the

28 middle, ring and little fingers; is that correct?


32

1 A. Yes.

2 Q. And that's for both item 16 and item 17, correct?

3 A. Yes.

4 Q. And so more areas of the glove were swabbed on the

5 two swabs that you got than what you had prior tested in the

6 last report we're looking at, Exhibit 3?

7 A. Correct.

8 Q. Sorry. These questions -- it's a lot of information

9 per question, so. . .

10 You created two new item numbers when you made these

11 swabbings, correct?

12 A. Yes.

13 Q. The two new item numbers were 16-3, correct?

14 A. Correct.

15 Q. And that was the new swabbing of the right glove?

16 A. Yes.

17 Q. And then you also collected -- you also created item

18 number 17-3, right?

19 A. Yes.

20 Q. Which was the inner swabbing of the left glove?

21 A. Correct.

22 Q. Right.

23 Let's pause for a minute. Because I just remembered

24 something about the last report that I wanted to -- to ask you

25 about.

26 The -- and, again, I'm going to show you Exhibit 3.

27 We'll move that over here.

28 When you analyzed item 16-2, Mr. Dominguez was not


33

1 consistent with every loci on 16-2, correct?

2 A. Correct.

3 Q. In fact, there were two loci that he was inconsistent

4 with?

5 A. Yes.

6 Q. And which loci were those?

7 A. Those were the -- let me see. I believe they were

8 the D-18 and D-2 markers.

9 Q. Well, they would have to have been one of the four

10 that you excluded from your analysis, right?

11 A. Correct.

12 Q. And that's because if you included them in your

13 analysis, he would have been excluded as a contributor, right?

14 A. I think that's slightly misstating it. But if I

15 included those loci in my analysis, it would have given a --

16 it would have been an overinflation of the statistic for the

17 inclusion.

18 Q. But if he was inconsistent at a loci, right, meaning

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

21 wouldn't be possible, right? I mean you can't do that, right?

22 A. Yes. So to include loci where somebody was not

23 represented means that the stat would definitely not apply to

24 that person.

25 Q. Right. So in order to do this statistic, you had to

26 omit two of the loci -- at least two of the loci to do the CPI

27 statistic, right?

28 A. Yes.
34

1 Q. Okay. And do you remember when I cross-examined you

2 at the first trial in October of 2010, do you remember me

3 asking you about that?

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

7 Mr. Dominguez was inconsistent at those two loci?

8 A. Yes. It was phenomenon known as allele dropout which

9 I concluded was happening.

10 Q. Well, that was your theory as to why he wasn't

11 present, right?

12 A. Yes.

13 Q. Okay. So then we move back to Exhibit 7; and, again,

14 item 16-3, the inner swab of the right glove, the new swabbing

15 of the right glove that you took sometime prior to February of

16 2011, you had an opinion as to that glove, correct?

17 A. Yes.

18 Q. And what was your opinion with regard to

19 Florencio Dominguez?

20 A. Again, I included Florencio Dominguez as a possible

21 minor contributor to the swab of the glove.

22 Q. And you assigned to Mr. Dominguez another CPI

23 statistic, right?

24 A. Correct.

25 Q. And is that CPI statistic represented in this report

26 Exhibit 7, supplemental report 6?

27 A. It is.

28 Q. And what is that statistic?


35

1 A. For 16-3 it was 1 in 1,700 in the U.S. Caucasian

2 population. 1 in 100,000 in the African American population.

3 And 1 in 450 in the Hispanic population.

4 Q. And then you also came to an opinion about item 17-3,

5 the swab -- the second swab of the left glove that's also

6 reported in Exhibit 7, correct?

7 A. Yes.

8 Q. And I'm going to Page 3 of 6 and Paragraph 2. Does

9 Page 3, Paragraph 2 report your findings with regard to the

10 comparison you made of Florencio Dominguez to item 17-3?

11 A. The Conclusion 2 on Page 3 of 6 does, yes.

12 Q. And what was your opinion in the report?

13 A. Again, he was included as a minor contributor to the

14 DNA obtained from the glove. And the probability that

15 somebody else would match to the same extent as Mr. Dominguez

16 was 1 in 210 in the U.S. Caucasian population, 1 in 1,300 in

17 the African American population, and 1 in 65 in the Hispanic

18 population.

19 Q. Okay. So as opposed to the first trial -- let me

20 back up.

21 When you -- after you made this report, you were

22 called as a witness by the prosecution at another trial for

23 Mr. Dominguez in April, correct?

24 A. Correct.

25 Q. You testify -- what you testified to was consistent

26 with Exhibit 7 that you just looked at, right?

27 A. Correct.

28 Q. And it's also consistent with what you just told the
36

1 Court today?

2 A. Correct.

3 Q. And so you testified at that trial that Mr. Dominguez

4 was a possible minor contributor now in two gloves, not one?

5 A. Yes.

6 Q. You also testified to a statistic in item 16-2 -- 3,

7 excuse me, that is, quote/unquote, more compelling than the

8 statistic you gave in the first trial for 16-2?

9 A. It's a more rare number, yes. 1 in 450 is more rare

10 than 1 in 110.

11 Q. So it's -- from a forensic standpoint, it's a

12 stronger inclusion than the one you gave prior -- prior in the

13 October trial?

14 A. Sure.

15 Q. It's stronger by about approximately between four and

16 five times stronger of an inclusion?

17 A. Okay.

18 Q. Is that a "yes"?

19 A. Yes.

20 Q. So, again, if we assume there's 1.3 million people in

21 the Hispanic population in San Diego County, all you'd have to

22 do to find out the random match probability -- the amount of

23 people that would randomly match that sample is divide by 450,

24 correct?

25 A. Correct.

26 Q. And that is quite a bit less than 10,000, is it not?

27 A. It's probably still in the thousands. But yes, it's

28 less than 10,000.


37

1 Q. It's probably more like 2,000 or high 1,000s?

2 A. I could break out a calculator. I'm not super strong

3 at doing that math in my head.

4 Q. Me neither.

5 I just did the 1.3 million divided by 450, right?

6 A. Yep.

7 Q. And I got 200 -- 2,888?

8 A. Okay.

9 Q. Right?

10 A. 2,800.

11 Q. In the first trial, it was, say, 1.3 million divided

12 by 110. And that's 11,818, correct?

13 A. Sure.

14 Q. So there is substantially less people in the county,

15 according to your second statistic at the second trial for

16 16-3, there is substantially less people who would match at

17 random in the county, correct?

18 A. There's about four to five times less people, yes.

19 Q. Okay. Thank you.

20 So let's talk about this issue that I promised we

21 would talk about as far as only using certain loci in your

22 statistical analysis, okay?

23 A. All right.

24 Q. So after your trial -- after our trial,

25 Mr. Dominguez's trial, the one that you testified at in April,

26 there -- and previous to that actually, there had been some

27 scientific objections to that procedure, specifically omitting

28 some loci from the statistical analysis, right?


38

1 A. Can you be more specific as to what you're talking

2 about?

3 Q. Your practice, the way you analyze these samples in

4 both trials, was that first you looked at the suspect or

5 the -- the profile that you wanted to compare, whether it was

6 a suspect or a witness, you looked at a profile from an

7 individual, right, and then you compared it to a mixture

8 sample, right?

9 A. Yes.

10 Q. Then once you made that comparison, you came to a

11 conclusion as to whether you thought they might be a possible

12 minor contributor, right?

13 A. Correct.

14 Q. And then after you do that, then you calculate your

15 CPI statistic? That's the order in which things are done?

16 A. Correct.

17 Q. But when you calculate your CPI statistic, you don't

18 use every single genetic marker on the mixture profile, right?

19 A. Not all the time, no.

20 Q. Let's just explain what that means. When you made a

21 mixture profile, you get a result that is basically alleles

22 that appear in genetic markers, right?

23 A. Yes.

24 Q. At the time, how many genetic markers were you

25 analyzing?

26 A. We were analyzing 15 genetic markers plus a sex

27 determining marker.

28 Q. Okay. So 15 -- what is it called? Amel, right?


39

1 A. What's called amelogenin.

2 Q. That's the sex determiner?

3 A. Amelogenin, A-M-E-L-O-G-E-N-I-N.

4 Q. And that's just an X or a Y?

5 A. That is a DNA marker that's found on both the X and Y

6 chromosomes, yes.

7 Q. But that's not used to calculate a CPI statistic?

8 A. No.

9 Q. So you had 15 -- you had 15 genetic markers and the

10 person -- the -- per genetic marker, there are things called

11 alleles in those, right?

12 A. Yes.

13 Q. What are alleles?

14 A. Alleles are different DNA types that are present in

15 the population at each of the DNA markers.

16 Q. How many alleles does a person have at a given

17 genetic marker?

18 A. Any one person is going to have at most two DNA types

19 at any one genetic marker.

20 Q. Is it possible for them to have only one?

21 A. It is, yes.

22 Q. And why would that happen?

23 A. If you get the same DNA type from your mother and

24 your father, we would see it as a single DNA type.

25 Q. So that is if your mom gives you, say, a 17 and your

26 dad gives you a 17, then you'd basically have two 17s and each

27 17 would mask the other?

28 A. Yes. So it would be represented as a 17 on our -- on


40

1 our electropherogram and that would be one type, but there's

2 actually two components to that one type.

3 Q. So when you mixed -- when you analyze a mixture

4 sample, you're just trying to find out if the person who

5 you're comparing to the mixture sample if their alleles at

6 that genetic marker literally match the alleles in the profile

7 mixture?

8 A. There's a little bit more to it than that. But, yes,

9 essentially what we're doing is we're trying to see if the DNA

10 types possessed by any of the persons of interest we're

11 looking at are represented in the evidence sample.

12 Q. So you might come to the conclusion after you look at

13 a mixture sample, right, and you compare it to a reference

14 sample of an individual -- say, Florencio Dominguez -- you

15 might come to a conclusion that that person is a minor

16 contributor before you do any math?

17 A. Correct.

18 Q. Then, even though you've come to that conclusion,

19 that person might be inconsistent with the mixture sample at

20 given loci?

21 A. Yes. So if, for instance, there's DNA types that are

22 missing, we would evaluate where those DNA types were missing

23 in the DNA profile of the evidence and determine whether

24 somebody could be missing DNA types at those markers and still

25 scientifically have it justified that they contributed DNA to

26 the sample.

27 Q. So, in fact, you -- before you do your CPI statistic,

28 at the time -- at the time you did the case work on this case,
41

1 specifically the case work you did in Exhibit 3 and Exhibit 7,

2 when you did the case work, what you would do is you would

3 choose which loci to include or not include based on the

4 reference sample you were comparing?

5 A. Partly, yes. Absolutely.

6 Q. So you could compare person X's profile to the

7 mixture sample and omit, you know, certain four loci from your

8 calculations, correct?

9 A. Yes.

10 Q. And then another person, person Y, you would omit a

11 totally different set of loci from that CPI statistic?

12 A. Yes.

13 Q. There's been some criticism about that practice in

14 the scientific community both before your trial and -- your

15 trial -- our trial, this trial -- before each of the trials,

16 there's been some criticism of that practice before and after,

17 correct?

18 A. There's been discussions about how best to treat

19 mixtures. Those conversations and discussions go back, you

20 know, a couple of decades.

21 Q. And the reason for the criticism in the scientific

22 literature is because if somebody who you're comparing is not

23 consistent at a given loci, you can -- you can sort of pick

24 and choose which loci you want to consider and omit them --

25 omit that loci from your opinion, from your calculation as to

26 whether they're consistent, right?

27 A. Can you repeat that? I'm sorry.

28 Q. I will. I probably wasn't clear.


42

1 The reason that it's been criticized is because --

2 and I'll use the word "prosecution-centric." It's a

3 prosecution-centric way of doing things.

4 Do you understand what I mean by that?

5 A. Yes.

6 Q. What does that mean, prosecution-centric?

7 A. It would basically favor prosecution's interpretation

8 of the evidence.

9 Q. And that's because if somebody is inconsistent at a

10 loci, you have to assume something called allelic dropout,

11 right?

12 A. Well --

13 Q. If you're going to include that?

14 A. Yes. I think that the criticisms of the -- of that

15 process are more because if there is -- if you're just

16 excluding it without looking at the profile in general for

17 scientific underlying reasons why there could be dropout, then

18 that is definitely a practice that would not be -- not be

19 correct.

20 Now, the -- if somebody is not represented at a

21 marker in a DNA test, there's two possible explanations for

22 that. One is that they don't have DNA in that sample. Or the

23 second is that they have DNA but a phenomenon known as allelic

24 dropout has occurred.

25 And if you're going to include that person, you would

26 have to substantiate why allelic dropout is occurring in order

27 to make that inclusion and have it be justified.

28 Q. And I think that's fair. But let me just isolate


43

1 exactly the issue.

2 The issue is the order in which you do your analysis

3 of whether you should include a loci for your statistical

4 analysis, whether you should look at the suspect first and

5 then decide which loci to admit or whether you should look at

6 the mixture sample first before you consider any suspect or

7 profile and decide then which loci to admit -- to use?

8 A. That has been one of the criticisms, yes.

9 Q. And can you just explain why the latter would be a

10 less prosecution-centric way of doing an analysis?

11 A. Essentially everybody would have the same statistic

12 beforehand. And so if you were to look at anybody, you would

13 be basically doing it sort of upfront without any -- without

14 any information on the quality of the information at each of

15 the genetic markers.

16 Q. Well, it would be more blind, right? It would be

17 more like a blind study, right? You wouldn't have the suspect

18 or reference sample profile information before you made the

19 determination that a specific loci was unsuitable for

20 comparison and unsuitable for a CPI statistic?

21 A. Definitely the appearance of bias goes away.

22 Q. Well, not only the appearance of bias, Mr. Montpetit,

23 but actual bias would be eliminated, right?

24 A. I don't know if I go that far. But, yes, I would say

25 the appearance of bias, again, goes away. It would depend on

26 how you were making the inclusions.

27 Q. And I'm not -- don't -- these questions are not

28 making any judgment on you. But analysts in general, not you


44

1 specifically, but analysts who work for the police, who work

2 for law enforcement agencies, it can happen, you -- you'd have

3 to admit that it can happen that there might be an

4 interpretation bias when analysts take suspect profiles and

5 they compare them to mixture samples, right?

6 A. Yes.

7 Q. And if you find out the information about the suspect

8 profile prior to making those determinations of which loci are

9 present, that could feed into an interpretation bias?

10 A. It could, yes. And I think the -- whether it does or

11 not depends on the lab policies in place.

12 Q. It also depends on the analyst and whether that

13 individual may or may not be a person who's susceptible to

14 interpretation bias, right?

15 A. I would say yes. But, again, you know, laboratory

16 protocols would try and minimize that as much as possible.

17 Q. And, of course, no -- no individual analyst thinks

18 themselves as biased. Would you agree with that?

19 A. I would agree with that.

20 Q. So that process is something that you -- the process

21 that lends more to a prosecution-centric interpretation that

22 lends more to an interpretation bias where you analyze the

23 loci with the information of who you're comparing them to

24 first, that is something that you did in your analysis in

25 Exhibit 7, correct?

26 A. Yes.

27 Q. Okay. And that's on display here in the report

28 because you analyzed Mr. Dominguez, right? And he -- you've


45

1 excluded certain genetic marker from his profile, correct?

2 A. Yes.

3 Q. And we're looking at Paragraph 1, Exhibit 7, you've

4 excluded the FGA marker, correct?

5 A. Correct.

6 Q. But then you do another analysis with another

7 reference sample, another person of interest in the case whose

8 name is Josue Gutierrez, correct?

9 A. Yes.

10 Q. And in that analysis you actually exclude different

11 loci. You exclude CSF1P0, correct?

12 A. Yes.

13 Q. You exclude D2S1338, correct?

14 A. Yes.

15 Q. You exclude D1S51, correct?

16 A. Yes.

17 Q. And you also exclude FGA?

18 A. Correct.

19 Q. So you look at the suspect's profile, and based on

20 what their profile is, that's what makes you decide which loci

21 to use in your statistical analysis, right?

22 A. That's probably an overgeneralization of the process.

23 Q. But the answer is yes?

24 A. Well, in order to get the inclusion, we would

25 evaluate the profile, determine where the information is

26 missing, determine whether that was reasonable based off the

27 quality and the amount of DNA information. And at that point,

28 if once we have an inclusion, we would calculate a statistic.


46

1 And, yes, at that point, we would look at where the person of

2 interest matched the DNA profile. And if we still concluded

3 they were included, we would calculate based off that.

4 Q. That -- what you said there is you have to do that to

5 get the inclusion, right?

6 A. We have to do that to get the stat.

7 Q. So you did it again for a person named Andres Lopez,

8 correct?

9 A. Yes.

10 Q. You examined this individual and you have a new set

11 of genetic markers that you used to examine and calculate a

12 CPI statistic for him?

13 A. Correct.

14 Q. And is there one that you used for one person and not

15 the other?

16 A. DNA markers.

17 Q. DNA loci, DNA markers.

18 A. Yes.

19 Q. Okay. So one -- in the first method that I said you

20 first look at the mixture profile and you decide before you

21 look at reference samples which loci are unsuitable for CPI

22 statistic first, right?

23 A. Yes.

24 Q. If you did it that way, then you wouldn't be able to

25 include some loci in some people's analysis but not in others,

26 right?

27 A. Yes.

28 Q. So basically what happens is you are picking and


47

1 choosing which loci to use for each person?

2 A. We are trying to calculate a statistic which reflects

3 the level of that person's possible inclusion in the mixture.

4 Q. And for Joseph Nieto, a fourth person, you also chose

5 a different set of DNA markers to compare with that

6 individual, correct?

7 A. Yes.

8 Q. And with regard to 17-3 -- and that's Paragraph 2 of

9 Exhibit 7, supplemental report 6 -- you -- when you made your

10 comparison with Florencio Dominguez, you chose a different

11 four loci for him as well?

12 A. Yes.

13 Q. You excluded from your CPI statistic four loci

14 specifically for him?

15 A. Yes.

16 Q. Loci that, in fact, you used in the comparison with

17 Roberto Ruiz, Christian Ambriz, Siria Ford, Tomas Lopez,

18 Victor Ramos, the list goes on, right?

19 A. Yes.

20 Q. Like, for example, on Mr. Dominguez, you used -- you

21 excluded the FGA marker because you didn't think it was

22 suitable for comparison to do a CPI statistic for

23 Mr. Dominguez, right?

24 A. I wouldn't categorize it like you did, but --

25 Q. You didn't?

26 A. I didn't use FGA, yes.

27 Q. But for Roberto Ruiz in this third paragraph, you did

28 use that genetic marker for your statistic?


48

1 A. Yes -- well, actually, I'm sorry. No, I did not.

2 In the paragraph for Mr. Dominguez, I'm excluding the

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.

7 Q. I see. Thank you. That is an unfortunate use of the

8 language.

9 But, nonetheless, the point is is that for some of

10 the analysis you used a genetic marker for one person but then

11 didn't use it for another? That fact --

12 A. Yes.

13 Q. -- still is true?

14 Okay. And sorry about that. Misreading of the

15 report.

16 THE COURT: Is this a convenient time for a short

17 recess, Mr. Speredelozzi?

18 MR. SPEREDELOZZI: Yes.

19 THE COURT: I need to take 10 minutes, ladies and

20 gentlemen. Let's get back underway at five minutes before the

21 hour.

22 (Recess taken.)

23 THE COURT: Thank you. The record will reflect that

24 all parties and counsel previously announced are present.

25 Mr. Montpetit has resumed the witness stand. Thank you, sir.

26 Mr. Speredelozzi, you may continue your examination.

27 MR. SPEREDELOZZI: Thank you, Your Honor.

28 ///
49

1 BY MR. SPEREDELOZZI:

2 Q. Mr. Montpetit, we left off discussing excluding loci

3 from a given mixture sample not based on an independent

4 judgment that the loci is unsuitable, but based on a judgment

5 of whether it fits the person you're comparing at the time,

6 right? That's what we left off on?

7 A. Yes.

8 Q. And I just want to point out one last thing with

9 regard -- well, one last thing with regard to this report,

10 with regard to 17-3, which is here in Paragraph 2.

11 THE COURT: This is Exhibit 7.

12 MR. SPEREDELOZZI: Yes, sir. Thank you.

13 THE COURT: Thank you.

14 BY MR. SPEREDELOZZI:

15 Q. Exhibit 7, supplemental report 6, Page 3, paragraph

16 marked 2, the genetic markers that you -- excuse me. The

17 genetic markers that you excluded from Mr. Dominguez we've

18 already established was four of them, but two of them are

19 important? D185 -- D18-S51 and D2-S1338, you excluded those

20 from your CPI statistic. Do you know what those two have in

21 common?

22 A. I'm assuming you're talking about with relation to

23 the comparison?

24 Q. Yes.

25 A. Yes. D2 where I interpreted the dropout would have

26 been happening for Mr. Dominguez.

27 Q. And is that because Mr. Dominguez's reference profile

28 actually was not present in the mixture sample of those two


50

1 loci?

2 A. It's because one of his two alleles at both of those

3 loci were not detected.

4 Q. So his profile was, in fact, inconsistent at those

5 two loci?

6 A. Yes.

7 Q. And so there's only two possibilities if that's the

8 case, right?

9 A. Correct.

10 Q. Either he is not present in that sample, right?

11 A. Yes.

12 Q. Or some kind of dropout occurred?

13 A. Correct.

14 Q. Okay. So when you formed your opinion, your opinion

15 was twofold, one that he was a minor contributor to that

16 sample -- to that mixture sample, right?

17 A. Yes.

18 Q. But also it was -- it had to have been also your

19 opinion that allelic dropout must have occurred at that -- at

20 those two loci?

21 A. I would say that the logic is probably reversed on

22 that. I would say that I interpreted that dropout was

23 possible at those two markers such that the inclusion was

24 still a possibility.

25 If I looked at those markers where there was

26 inconsistencies and I determined it was not scientifically

27 possible to be missing at those markers and still be a

28 contributor, I would have excluded him.


51

1 Q. But it's not just scientifically possible. In fact,

2 it would have been required to have happened if he was a minor

3 contributor?

4 A. Yes.

5 Q. So then you did that -- that same series of question

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

8 screen, with regard to items -- item 16-2.

9 You also excluded loci -- and, again, this was the

10 report supporting your testimony at the first trial in October

11 of 2010, correct?

12 A. Correct.

13 Q. You also excluded certain loci from this analysis,

14 the four loci that are listed in Paragraph 2, Page 2 of 4,

15 correct?

16 A. In conclusion 2, yes.

17 Q. Conclusion 2. And the loci D18S5 and now the FGA

18 loci, those two have something in common as well, right?

19 A. Yes.

20 Q. And, again, that's the fact that Mr. Dominguez's

21 genetic profile is inconsistent with those two loci?

22 A. Yes.

23 Q. And so either he would have been excluded as a

24 contributor or there would had to have been necessarily

25 allelic dropout at those two loci?

26 A. Correct.

27 Q. Okay. I'm going to show you -- can you -- before I

28 put it on the screen, can you take a look at Exhibit 30.


52

1 Do you have that?

2 A. Yes.

3 (Exhibit No. 30 identified for the record.)

4 BY MR. SPEREDELOZZI:

5 Q. That is a paper from the Journal of Forensic

6 Sciences, correct?

7 A. Yes.

8 Q. Let me ask you this. Is the Journal of Forensic

9 Sciences, is that reputable scientific paper?

10 A. Yes.

11 Q. Can you give me a scale of that how reputable?

12 A. It's one of the, I'd probably say, half a dozen

13 forensic journals that we rely on.

14 Q. So your lab relies on this scientific journal,

15 correct?

16 A. It's a reference sample -- a reference source for us,

17 yes.

18 Q. And the author of this paper is who?

19 A. Dr. James Curran and Dr. John Buckleton.

20 Q. And are you familiar with this article?

21 A. Yes.

22 Q. You've reviewed -- you've read this article?

23 A. Oh. Well, it came out years ago. I would have read

24 it years ago.

25 THE COURT: This is exhibit what, please?

26 MR. SPEREDELOZZI: I'm sorry. Thank you, Your Honor.

27 It's Exhibit 30.

28 THE COURT: Thank you.


53

1 BY MR. SPEREDELOZZI:

2 Q. It's probably been a while since you've reviewed it?

3 A. Yes.

4 Q. But you're comfortable with the topics that it

5 addresses -- it addresses?

6 A. Yes.

7 Q. I'm going to publish it now. It's a three-page

8 article called "Inclusions, Probabilities and Dropout"?

9 A. Yes.

10 Q. And this paper actually addresses the issues that

11 I've been examining you on for the past 30 minutes or so,

12 right?

13 A. Yes.

14 Q. It specifically addresses the order in which you

15 should -- you should analyze the mixture sample, right?

16 A. Yes.

17 Q. Can you read the highlighted region here?

18 Can you see that?

19 A. Yes.

20 Q. What does that say? Can you read that for us?

21 A. "Recent discussions on the" --

22 THE COURT: Slowly, please.

23 THE WITNESS: Sorry.

24 THE COURT: That's okay.

25 THE WITNESS: "Recent discussions on a forensic

26 discussion group highlighted the prevalence of a practice in

27 the application of inclusion probabilities when dropout is

28 possible that is of significant concern. In such cases, we


54

1 are aware of an unpublished practice involving calculations of

2 an inclusion probability only for those loci at which the

3 profile of interest, hereafter the suspect, is fully included

4 among the alleles present in the crime sample -- crime scene

5 sample and to omit those loci at which the suspect has alleles

6 that are not fully represented among the alleles in the

7 mixture."

8 BY MR. SPEREDELOZZI:

9 Q. What are we talking about here? What is this article

10 addressing? What's the issue?

11 A. It's essentially addressing those DNA markers where

12 there's inconsistencies in between the evidence sample and a

13 reference sample.

14 Q. That's the exact issue that I've been discussing with

15 you, right?

16 A. Yes.

17 Q. The authors of this article, James M. Curran, do you

18 know who that is?

19 A. James Curran, yes, I do.

20 Q. Curran is how you pronounce his name?

21 A. Yes.

22 Q. And who is he?

23 A. I believe he works at a university in Australia. I'm

24 not exactly familiar what his position is.

25 Q. Okay. Is he a respected forensic scientist in this

26 field?

27 A. He's a statistician, yes.

28 Q. And John Buckleton, Ph.D.?


55

1 A. He works for the New Zealand crime lab service.

2 Q. And is he also a respected scientist in this field?

3 A. Yes.

4 Q. Do you know him?

5 A. Yes.

6 Q. Okay. Have you worked with him?

7 A. Yes.

8 Q. They did a study to see basically whether or not

9 interpretation bias is a significant factor in the problem of

10 false identifications, false inclusions, right?

11 A. Yes. They looked at the chances for falsely

12 included.

13 Q. And the results of their study -- and it was based on

14 this same issue, this issue of picking and choosing which loci

15 to do a CPI statistic to based on the suspect profile and not

16 based on an independent judgment, right?

17 A. It was based off of, yes, eliminating loci from the

18 calculations.

19 Q. And the results are highlighted. Can you read that

20 at page -- I think it must be 1172 of the article?

21 A. It says, "In 87 percent of simulated cases" --

22 THE COURT: Slowly, please.

23 THE WITNESS: Sorry.

24 "In 87 percent of simulated cases, evidence was

25 produced that had some tendency to inculpate the random third

26 profile that was, in fact, not in any way a contributor to the

27 mixture."

28 ///
56

1 BY MR. SPEREDELOZZI:

2 Q. Keep going even if it's not highlighted.

3 A. "The distribution of inclusion statistics is shown in

4 Figure 1. In some of these cases, the evidence was weak and

5 may have been correctly disregarded. However, the risk of

6 producing apparently strong evidence against an innocent

7 suspect by this approach was not negligible. In 48 percent of

8 cases, the inclusion statistics was less than .05."

9 Q. And what is the final conclusion of the paper?

10 A. It concluded that "The policy of calculating an

11 inclusion statistic for mixed DNA profiles where dropout is

12 possible by a policy of ignoring loci where the suspect is not

13 fully represented cannot be supported. It's false to think

14 that omitting a locus is conservative as this is only true if

15 the locus does not have some exclusionary weight."

16 Q. So the paper that I've just presented, Exhibit 30,

17 this is a direct contradiction of the opinions you expressed

18 during my examination prior, correct?

19 A. I -- well, I don't see it as that, but I can see how

20 you would.

21 Q. Why do I see it that way in your mind?

22 MS. BANNON: Objection, Your Honor.

23 THE COURT: Overruled.

24 MS. BANNON: Calls for speculation.

25 THE COURT: If you understand the question.

26 THE WITNESS: I think the question is to sort of why

27 he thinks that this is --

28 THE COURT: Well, you said it wasn't in your mind,


57

1 but you could understand how it would be in his mind. Why is

2 that? Explain that, please.

3 THE WITNESS: I was -- I would say that because this

4 was off a paper that was authored off a discussion on a

5 forensic forum, I guess a blog post, if you will, and this

6 doesn't actually look into the underlying reasonings for

7 excluding those loci. If you were just to have a profile and

8 not evaluate the locations that there was inconsistencies and

9 just disregarded loci because it supported the inclusion, that

10 would definitely be wrong.

11 But this does not look at why those loci were

12 actually omitted from the calculation. And if you were to

13 look at the reasons why we would exclude loci from the

14 calculations, I think we have a justifiable reason for doing

15 those.

16 BY MR. SPEREDELOZZI:

17 Q. Correct me if I'm wrong, but this paper isn't against

18 the practice of, generally speaking, excluding loci when loci

19 are not suitable for comparison. The paper is criticizing the

20 practice of picking and choosing the loci after the analyst

21 has knowledge of the reference sample that they will

22 eventually compare, right?

23 A. Again, yes, but it does not go into the reasons why

24 those certain loci may be selected for omission from the

25 calculation.

26 Q. This -- this sentence here, "The policy of

27 calculating an inclusion statistic for mixed DNA profiles

28 where dropout is possible by a policy of ignoring loci where


58

1 the suspect is not fully represented cannot be supported,"

2 that is in direct conflict in telling you that you didn't do

3 it correctly in each of the analysis you did in this case in

4 Exhibit 3 and Exhibit 7?

5 A. I think you're not getting the context of the fact

6 that multiple labs have multiple ways of doing these

7 calculations, and there were laboratories that would

8 essentially not look at the DNA profile for whether dropout

9 was reasonable or not nor scientifically supportable.

10 And those laboratories who would do that practice and

11 exclude loci without actually looking to see whether it was

12 justifiable, I would agree that that is not supportable.

13 But --

14 Q. Hold on. That's not what I just read, though.

15 That's not what I just read to you. What I read to you is

16 that it's more simple than that. "The practice of excluding

17 loci where the suspect profile is not represented -- not fully

18 represented cannot be supported."

19 Is that -- am I oversimplifying that? Because that's

20 what the conclusion of this paper is, correct?

21 A. Yes. And I think that the authors didn't look

22 into -- and that's what I was saying before. The authors

23 didn't look into the reasoning behind omitting loci. They

24 basically read something on a blog post and said, hey, that's

25 not right without looking into why those labs were doing it.

26 Q. So those were --

27 A. These laboratories would do a practice of excluding

28 loci, and I would agree that what they were doing was wrong.
59

1 I would say that in our practice of looking at the markers

2 where there was inconsistencies, looking to see that -- you

3 know, if it was scientifically supportable and still have an

4 inclusion, I think that is a valid practice to answer the

5 question of whether or not somebody's DNA is potentially in

6 that mixture.

7 Q. And you can't even agree that -- even though you

8 think it is a valid practice, and that's okay, you think

9 that's a valid practice -- you can't at least agree that this

10 paper says that that is not a valid practice?

11 A. Well, like I said before, I think, in the context

12 that I previously described, I would agree in that certain

13 situations, yes, it is not supportable and that is what it

14 says. But I don't think that the authors of this paper

15 actually looked into why labs were doing it and the different

16 practices of how labs were going about the process of

17 eliminating those markers from consideration.

18 And so I think that this was a paper that was written

19 hastily in response to something that they read without having

20 the proper context.

21 Q. So you agree at least, whether or not they're right

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?

25 A. I don't know if they'd agree with the interpretation

26 process that I used because they aren't considering the

27 reasons why things were omitted. So if they were to consider

28 that information, which is not in this paper at all, I don't


60

1 know what they would say.

2 Q. That they specifically address the practice that you

3 employed of looking at a suspect profile first, that is

4 specifically addressed?

5 A. That is what they're trying to address, but I'm not

6 too sure that they successfully managed to do that in all

7 contexts.

8 Q. So these two scientists who you respect, one of them

9 who you've worked with, you don't think they wrote a good

10 paper here? Is that what you're saying?

11 A. I think that it was hastily written and they could

12 have done an actual better job of looking into the practices

13 of the different laboratories.

14 Q. Okay. Fair enough. Okay. We'll move on. Thank

15 you, sir.

16 There are other issues, scientifically speaking,

17 besides this practice that I think we've beat like a dead

18 horse the past 40 minutes or so that are a problem with the

19 way you analyze the samples in this case when you -- prior to

20 you gave -- when you gave testimony in October of 2010 and

21 April of 2011. There are other scientific problems or issues.

22 Would you agree?

23 A. Not without knowing what you're talking about, no.

24 Q. So, for example, the idea that you did a CPI

25 statistic on something called low -- low copy DNA or -- or --

26 do you know what low copy DNA is?

27 A. Well, I know there's a couple of different

28 definitions of what low copy number is. I'm not too sure what
61

1 definition you're applying.

2 Q. Well, what is your understanding of low copy DNA?

3 A. Low copy DNA, it's had a couple of different

4 definitions over time. My understanding of it is that the

5 current term for low copy number would be enhanced DNA

6 detection methods. So low copy number is essentially when

7 you're increasing your sensitivity of the system that you're

8 using.

9 Q. Enhanced detection techniques?

10 A. Yes.

11 Q. But also doesn't it refer to -- excuse me.

12 And I think just to clarify just so we're clear what

13 I'm talking about, what I'm asking you about, you didn't, in

14 fact, use enhanced detection techniques in this case?

15 A. Correct.

16 Q. Okay. I just want to make that clear because you

17 brought it up and I just want to clarify that.

18 But the samples in this case, virtually all of them

19 that we're talking about in this hearing, and that's

20 specifically 16-2, 17-2, 16-3, 17-3, involved low levels of

21 DNA material, touch DNA?

22 A. Yes. There's definitely low level DNA types that I

23 detect in these samples.

24 Q. And the sort of reason we know that is because many

25 of the alleles that were detected are in the stochastic range

26 on the electropherogram, correct?

27 A. Yes. The reason that we know that is because there

28 is DNA types that were not very intense on the


62

1 electropherogram.

2 Q. Explain how that works so that we can understand what

3 the stochastic range is. So, for example, what does an

4 electropherogram look like?

5 A. So an electropherogram looks like -- kind of like an

6 EKG you would imagine as you go along. Every time there's a

7 beat of the heart, there's a spike in the electrocardiogram.

8 Well, in an electropherogram, any time a piece of DNA

9 goes by the detection system of the instrument, we get a rise

10 in signal which basically looks kind of like an EKG. And the

11 intensity of that DNA signal is directly related to how much

12 DNA is present. And so a low signal would indicate that

13 there's a low amount of DNA, and a high signal would indicate

14 that there's a large amount of DNA.

15 Q. Just to make this as clear as possible, when you say

16 low level, high level, intensity, what have you, we're talking

17 about the size of the point or triangle-looking thing. Is

18 that what they look like?

19 A. Yes. The height of the -- the signal.

20 Q. The literal height on the picture, the photograph,

21 the electropherogram?

22 A. Yes.

23 Q. So, in this case, we had a major contributor to each

24 sample, and that's the samples I was talking about, the 16-2,

25 17-2, 16-3 and 17-3, we had a major contributor and minor

26 profile, right?

27 A. Yes. There was major contributors to both -- or all

28 four, and there were also several minor contributors.


63

1 Q. And the reason that you know that or at least the

2 reason that you concluded that in your opinion was solely

3 based on the height of the alleles that you witnessed, that

4 you saw on the electropherograms?

5 A. The reason I concluded which part of that? That

6 there's major?

7 Q. The way that you distinguished the major contributor

8 profile versus the general mixture profile.

9 A. Yes. So the -- the intensities of the different

10 peaks are taken into account when we interpret and -- for the

11 purposes of looking at a DNA profile for the distinguishing

12 major and minor contributors, it is definitely the height of

13 the peaks that we are looking at.

14 Q. And the height of the peaks for the major contributor

15 is, in fact -- I guess, suffice it to say, it's not difficult

16 to look at an electropherogram and pick out which one is major

17 and which one is minor because the height ratios are quite

18 different between the major contributors and minor

19 contributors?

20 A. In this case, yes.

21 Q. Meaning?

22 A. For these samples, yeah.

23 Q. Meaning that when you look at the electropherogram,

24 the major contributors are big, giant peaks and the minor

25 contributors are just little peaks at the bottom?

26 A. There's definitely a difference in intensity in

27 between them such that they can be distinguished, yes.

28 Q. The major contributor was a single source profile in


64

1 this case?

2 A. Yes. It was consistent with being from a single

3 individual.

4 Q. And the comparison was made with Moises Lopez, as we

5 know, right?

6 A. Yes.

7 Q. The victim in the case?

8 A. Yes.

9 Q. And, in fact, it was a match at every loci, it was

10 consistent at every loci?

11 A. Yes.

12 Q. And the chances that that happens at random are quite

13 low?

14 A. Extremely low, yes.

15 Q. So the confidence in that is quite high?

16 A. Yes.

17 Q. But then the lower -- the lower peaks were a mixture

18 of multiple people, right?

19 A. Yes.

20 Q. The -- many of the lower peaks were so low that they,

21 in fact, were in something called the stochastic area, the

22 stochastic range?

23 A. Yes. There's several peaks within that range that we

24 define as stochastic range.

25 Q. And what -- what is the stochastic range? Why is

26 that significant to your opinion?

27 A. So the stochastic range is the range in our

28 analytical spectrum that if a peak is below the stochastic


65

1 threshold, we don't have confidence that any peak that it

2 pairs with has been detected. If a peak is above that

3 threshold, generally in single source samples we can conclude

4 that it is a homozygous genotype rather than a heterozygous

5 genotype. So with that we are detecting all the signal from

6 that sample versus not detecting it.

7 Q. So when you have a lot of different alleles in a

8 mixture profile that are in the stochastic range, does that

9 not, in fact, tell you that maybe it's not a full and complete

10 profile?

11 A. Yes, especially in mixtures when we have DNA types

12 that are within that stochastic range, it's an indication that

13 we may be missing some of the genetic information.

14 Q. And the CPI statistic that's calculated is meant to

15 apply to a full and complete profile?

16 A. Well, I guess I would answer that it depends on what

17 question you're answering.

18 Q. The question is is somebody a minor contributor and

19 what is the odds that they will be included as a random match?

20 A. If you're answering the question of who out there in

21 the population could be included in the mixture, then you

22 would need to have all the genetic information present to be

23 able to use the CPI.

24 Q. In this case, each item that we've been discussing,

25 16, 17, -2, -3, all of them had many alleles that were in the

26 stochastic range?

27 A. That is correct.

28 Q. So, in fact, there's a pretty high degree of


66

1 confidence that you didn't have a full mixture profile?

2 A. Yes. There's a -- there's a good chance that not all

3 the DNA types were actually detected.

4 Q. What is the detection threshold?

5 A. The detection threshold is essentially the base --

6 baseline that we go down to for detection of DNA peaks. So

7 every analytical technique has some degree of noise in the

8 baseline and we establish a detection threshold that is

9 sufficiently high from the baseline to know that anything that

10 we detect above that is a true DNA peak.

11 Q. So, basically, if you have alleles that are in the

12 stochastic range, the concern for the analyst is that there

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

15 are part of the sample?

16 A. Yes.

17 Q. And in this case -- like, for example, you -- you

18 analyzed item 16-2, you swabbed it, you created item 16-2 and

19 then you completed a PCR process on it two times?

20 A. Yes.

21 Q. And you, in fact, got two different results from that

22 process?

23 A. I would say that there were similar results, but

24 there were some additional DNA peaks that were detected the

25 second analysis that were not detected the first.

26 So in the first analysis, I say they're similar

27 because Moises Lopez was the major contributor to both those

28 samples. There were minor contributors to both those samples.


67

1 I detected the same peaks in the second analysis but I just

2 detected more.

3 Q. And, again, this is a great example of what we're

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.

8 Q. And that you tested. And, in fact, even in multiple

9 swabbings, 17-3, 16-3, the major contributor never changed?

10 A. That's correct.

11 Q. But on the different results that you produced, 16-2

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?

16 A. Yes, we detected more information in all subsequent

17 analyses.

18 Q. And, in fact, it's a little bit less common, but some

19 of the peaks actually dropped out when you did it the second

20 time around?

21 A. That's entirely possible. I would have to check in

22 my notes for that.

23 Q. Give me a second and I'll check.

24 I'm going to show you Exhibit 7. You have it in

25 front of you with the binder if you need to refer to it then

26 as well.

27 As an addendum to this report, Mr. Montpetit, you've

28 produced some charts, correct?


68

1 A. Yes.

2 Q. I'm on -- I believe this would be Page 5 of 6 of

3 Exhibit 7. We have item -- I'm sorry. I think it might be

4 3 of 4. Sorry. I just have to get my bearings.

5 I think it's actually Exhibit 3 that I have in my

6 hand. So let me find that. So I apologize to the Court and

7 counsel.

8 And Exhibit 3 is supplemental forensic DNA report

9 number 2 dated June 1st, 2010. As a supplement to this

10 report, you made some charts. These are things that you

11 created. I'm showing you Page 3 of 4. Do you see the chart?

12 A. Yes.

13 Q. And it shows two -- you charted two PCR results for

14 item 16-2. One is -- I'm pointing at it with my -- excuse

15 me -- yeah, I'm pointing at it with my laser pointer here.

16 It's one, two, three, four, five, six, seven, eight -- the

17 ninth down. And that was the first PCR, right?

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?

21 A. That's correct. There is more DNA amplified in the

22 second analysis.

23 Q. And that's because allelic dropout occurred -- or

24 I -- I guess I should ask. Is that your opinion that allelic

25 dropout occurred in the first 16-2?

26 A. Yes. I mean, all those DNA types are present in the

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

2 that there was likely additional types below the detection

3 threshold, and so I amplified a second time using more DNA to

4 try and detect those DNA types.

5 Q. Take a look at genetic marker D2-S1.

6 A. 1338.

7 Q. 1338, thank you. There's an allele present in the

8 first analysis, allele 18, right?

9 A. Yes.

10 Q. And then you do the process again and that allele is

11 not present in the second analysis, correct?

12 A. That is correct.

13 Q. That is -- what is that? What are we looking at

14 there?

15 A. Essentially a phenomenon of allelic dropout. That

16 type was a low level type and it was in the first analysis and

17 it did not show up in the second analysis.

18 Q. Could it have been a drop in?

19 A. I would say it's possible but not really probable.

20 Just the detection. The sensitivity of the DNA testing kit we

21 were using at that time, we didn't actually detect drop in in

22 any fashion really.

23 Q. What is drop in?

24 A. Drop in is essentially a contamination event where

25 you get a single DNA peak or maybe up to two or three DNA

26 peaks that aren't actually part of that sample, they're just

27 from environmental DNA.

28 Q. Artifacts?
70

1 A. I wouldn't call them an artifact per se. I would --

2 because they're true DNA types. They just didn't originate

3 from that sample. They originated from outside that sample.

4 Q. I've heard the word noise. Have you heard that word?

5 A. I've heard the term noise, yes.

6 Q. What is that?

7 A. My understanding of noise would be relating to sort

8 of the instrumental detection and the background noise of the

9 instrument with the testing process that we use and the DNA

10 testing kits, we basically evaluate the baseline noise in

11 order to set our analytical threshold. So that's what I

12 understand noise to be.

13 Q. Stutter peaks?

14 A. Stutter peaks are an artifact of the PCR process and

15 they are -- they're a true DNA type, but they are, as I said,

16 a -- a process -- the process of PCR when it copies the short

17 tandem repeats that we test, the stutter peaks are generally

18 one repeat shorter or one repeat larger than the true allele

19 peak for the sample.

20 Q. These words that I've been throwing out at you are

21 issues that could cause problems when trying to interpret a

22 mixture sample that has alleles in the stochastic threshold?

23 A. Yes.

24 Q. And this is one of the key and fundamental criticisms

25 of calculating a CPI statistic when you don't know the

26 possibility that these things may or may not have occurred,

27 right?

28 A. Well, applying the CPI statistic to answer the


71

1 question of who could be a contributor to a sample would

2 necessarily require you to consider dropout information.

3 Q. So, for example, we know, based on your testimony in

4 trials in this matter, that each time you tested the samples,

5 you got more and more information, right?

6 A. Yes.

7 Q. We know that the allelic dropout, in fact, did occur

8 then in the prior PCR analysis that you did of the first

9 samples, right?

10 A. It's a phenomenon that we are aware of and considered

11 in our interpretations, yes.

12 Q. And we know that when you analyze the samples, you,

13 in order to make Mr. Florencio Dominguez a contributor, that

14 allelic dropout, you thought it must have occurred or else he

15 wouldn't have been included?

16 A. I thought that dropout at the markers in question for

17 both of those samples were scientifically supportable by the

18 concept of dropout. And so, yes, I included him and dropout

19 would be necessary at those markers.

20 Q. So does that mean that in each of these samples that

21 you analyzed and testified about in each of the trials that

22 we're talking about today, that the danger of having missing

23 information could have very realistically inflated the

24 statistics that you testified to?

25 A. It's -- it's possible that the number could have been

26 inflated. But, like I said, we use the -- the procedure for

27 eliminating DNA markers to mitigate that overinflation. If we

28 were to have used the markers where Mr. Dominguez was, in


72

1 fact, missing, that definitely would have inflated the

2 statistic and it would not have been a proper statistic to

3 apply to Mr. Dominguez.

4 Because I eliminated the markers, that essentially

5 made those markers statistically neutral and essentially

6 anybody could be a contributor at those markers. And,

7 therefore, the stat, I thought, was a good representation of

8 how likely it would be for somebody in the population to be

9 included to the same extent as I was including Mr. Dominguez.

10 Q. But it's only conservative to fail to -- it's only

11 conservative to omit those loci in which the suspect is

12 consistent. If the suspect is inconsistent at that loci, it's

13 actually the opposite of conservative, correct?

14 A. It would depend on how you were arriving at the

15 decision to exclude those. And in our case, I would look at

16 the intensity of the results across the entire profile, use

17 the information that we knew through validation of the DNA

18 testing kit, knew through our experience with using the kit on

19 hundreds of thousands of samples in case work that, you know,

20 those were loci that were large in size, length, nucleotide

21 length, and thus more susceptible to dropout than other DNA

22 markers.

23 And so because I was looking at the possibility of

24 dropout based on what I knew about the testing kit, I think

25 that the stat as it was applied is a reasonable stat for the

26 question that I was answering.

27 Q. You said -- before you gave me your long answer, you

28 said it depends, right?


73

1 A. It depends on how you were determining whether or not

2 to eliminate markers from consideration.

3 Q. When you said it depends, you were -- correct me if

4 I'm wrong, you were conceding the fact that, yes, it could be

5 the opposite of conservative?

6 A. It could be. But, like I said, I think that based on

7 the way we were conducting our analysis and the way we were

8 evaluating DNA types, I think that the stat that I offered in

9 my report is a reasonable estimate of how many people would be

10 included to the same degree as Mr. Dominguez.

11 Q. What about the other problem with allelic dropout

12 that we haven't addressed yet, which is the fact that you

13 suspect allelic dropout? We know you suspect it because

14 you're assuming it had to have occurred based on including

15 Mr. Dominguez.

16 A. It was scientifically justifiable that it did occur

17 in order for the inclusion of Mr. Dominguez, yes.

18 Q. And we're also assuming that there's a danger of

19 allelic dropout occurred because we've literally seen it

20 occur. You've retested the samples and demonstrated for us

21 that, in fact, allelic dropout had occurred in the prior

22 samples tested?

23 A. It is definitely something that our interpretation

24 takes into account, yes.

25 Q. So --

26 A. We understand that dropout is a possibility and we

27 have procedures to deal with the fact that dropout could be a

28 potential.
74

1 Q. So then when we have -- and I'll just use 16-2 as an

2 example because as we know this trial had to do more with 16-3

3 and 17-3 -- but just as an example on this point, if dropout

4 occurred in 16-2, which we all know we suspect it did, then

5 there is information in each of these alleles that is missing.

6 Like, for example, if dropout occurred at, say, for

7 example, this loci, which is CSP1P0, if dropout occurred

8 there, then 11 and 12 would not be the only alleles in that

9 loci?

10 A. Correct. If dropout occurred, then there's types

11 that we did not detect.

12 Q. And that's true for every single loci on the chart?

13 A. Yes. If allelic dropout were to happen, those

14 alleles would not have been detected and they're not on the

15 chart.

16 Q. And let me hold you there because that is one of the

17 fundamental problems with calculating a CPI statistic when

18 dropout is suspected because if you calculate a CPI statistic

19 when dropout is suspected, you're calculating a CPI statistic

20 without the benefit of having the full mixture profile?

21 A. Yes. And as I said before, if you're calculating to

22 answer the question of who in the population could be a

23 contributor to the mixture, not -- not including that

24 information would necessarily inflate that stat because any

25 additional DNA type would make it more common for somebody to

26 be included.

27 If I were answering a different question, which is

28 the question that we were answering, I still think that the --


75

1 the tool that we were using was appropriate for answering the

2 question that we were asking.

3 Q. But if there were, like you said -- you just said

4 it -- if there were more alleles in the sample, if that's

5 true -- and we all highly suspect there were -- that would

6 make the CPI statistic for Mr. Dominguez or anybody else less

7 compelling?

8 A. If there was additional types, yes, it would make it

9 more common for somebody to match by chance alone.

10 Q. And so the CPI statistic that you testified to at

11 both trials did not take that into account whatsoever?

12 A. But it didn't need to take that into account because

13 the question --

14 THE COURT: That wasn't the question, sir. Did it

15 take into account when you testified?

16 THE WITNESS: No, no. It did not.

17 THE COURT: All right. Thank you.

18 BY MR. SPEREDELOZZI:

19 Q. So one of the other -- one of the other criticisms in

20 the scientific world is the idea that when you're interpreting

21 a mixture sample because of the allelic dropout, because of

22 choosing which loci to use in your statistical analysis and

23 making these fundamental decisions about whether a particular

24 loci is suitable for that statistic, one of the criticisms

25 since the trial ended in this case in April 2011 is that

26 analysts such as yourself compared to an analyst somewhere

27 else, maybe even in your own crime lab or an analyst somewhere

28 across the world or maybe in Los Angeles or any other analyst,


76

1 might take a look at the same information that you've taken a

2 look at and come to a different conclusion about it?

3 A. Yes.

4 Q. So there was really fundamentally no sort of

5 objective way or objective criteria to make somebody an

6 inclusion or not an inclusion? It was mostly subjective?

7 A. I would say there's definitely some subjective

8 elements to DNA interpretation of mixtures. However, if you

9 have good procedures and policies, you can minimize the -- the

10 subjective nature of that happening. And especially within a

11 laboratory, I think our policies and procedures did a good job

12 of gaining consistency amongst analysts. And so we would all

13 look at mixtures the same way in our laboratory.

14 Q. That -- what I just asked about -- about whether it's

15 subjective to include or not include somebody into a mixture

16 sample, that's also true for -- for the CPI statistic -- let

17 me rephrase that because I don't think that was very clear.

18 The CPI statistic that you calculate, you get sort of

19 a number and that number is supposed to represent a random

20 match probabilities and it's supposed to give evidentiary

21 weight to your opinion about whether there's an inclusion,

22 right?

23 A. Yes. To give an estimate as to the significance of

24 that association.

25 Q. Some of the studies that have been done have found

26 that because of all these issues that we've been talking

27 about, allelic dropout, allelic drop in, stutter peaks,

28 artifacts, phantoms, stochastic range and the lack of


77

1 confidence that we have a complete sample, that even the CPI

2 statistics when analysts look at the same information can

3 differ from orders of magnitude between analysts?

4 A. I'm not 100 percent sure of every term that you threw

5 out there. But if the question is could analysts in different

6 laboratories look at different -- or look at the same mixture

7 and render opinions and stats that differed from each other,

8 yes, they can.

9 Q. And, in fact, that's not only is it possible, it's

10 actually common?

11 A. Yes. Depending on what the interpretation guidelines

12 in the laboratories were, yes.

13 Q. I'm going to ask your opinion on this kind of being

14 careful, but you're -- you're presenting a math statistic to a

15 jury, right?

16 A. Yes.

17 Q. When you testify?

18 A. Yes.

19 Q. And it has this allure of being objective and that's

20 the way it's presented to a jury, that it's an objective -- I

21 mean, how much more objective can you be than a math

22 statistic?

23 MS. BANNON: Objection. Argumentative.

24 THE COURT: Well, it's not a question. Rephrase,

25 please.

26 BY MR. SPEREDELOZZI:

27 Q. When you present your testimony to a jury, the math

28 statistic makes it sound like it's -- you're being objective,


78

1 right?

2 A. I think I am being objective.

3 Q. Makes it sound like anybody who looked at the

4 evidence would come to this math equation. It's just a matter

5 of running the numbers?

6 A. I -- I don't know what the jury takes away from it.

7 My role is to basically present my conclusion and then to try

8 and give an estimate to the jury as to the significance of

9 that association.

10 And, you know, everybody sort of has their own sort

11 of interpretation of what is significant to them. And, you

12 know, if -- so if I said 1 in 110 people could match

13 something, you know, some people might say, whoa, that's not

14 too many people that match that. Other people might say,

15 yeah, you know, that's a lot of people could match that.

16 I don't know what they're going to take away from it.

17 My job is to try and explain that 1 in 110 is not all that

18 significant.

19 Q. And that's fair, but that's not my question.

20 My question is, when you present a statistic to a

21 jury, the expectation is that that statistic is based on math

22 and math alone. Objectivity. That it's basically a result of

23 the profile and -- the mixture profile and a comparison

24 between the two and that you just look at the two things, you

25 write down a math problem on a piece of paper and it generates

26 the odds, right?

27 A. Okay.

28 Q. But that's not what it is at all. That's not what it


79

1 was when you testified. It's something that is based on many,

2 many, many independent judgments that you make throughout the

3 process.

4 A. It's dependent on our procedures and protocols. And

5 I think that if any outside person were to follow our

6 protocols, they would arrive at the same number that I did and

7 they would arrive at the same conclusion that I did.

8 Q. Can you look at Exhibit 31, please. It's in your

9 binder.

10 A. Okay.

11 (Exhibit No. 31 identified for the record.)

12 BY MR. SPEREDELOZZI:

13 Q. Exhibit 31. I'm opening it on my end so I can take a

14 look.

15 Exhibit 31 is a journal in a science publication?

16 A. Yes.

17 Q. Science journal. What journal is that? Science and

18 Justice?

19 A. Science and Justice, yes.

20 Q. You're familiar with that?

21 A. I am familiar with it.

22 Q. Is that a reputable journal?

23 A. Yes.

24 Q. Do you know the authors of this study?

25 A. I've seen Itiel Dror present, but I don't know him.

26 Q. Are you familiar with what he does, what his

27 occupation is?

28 A. I believe he's in -- I know he studies cognitive


80

1 bias.

2 Q. That's what we were talking about earlier.

3 Prosecution-centric interpretations and analyst bias when

4 analyzing evidence?

5 A. That's an element of it, yes.

6 Q. Do you know who Greg Hampikian is? Hampikian?

7 THE COURT: Addressing the reporter, do you need

8 these names spelled?

9 THE REPORTER: No, Your Honor.

10 THE WITNESS: No, I don't know who he is.

11 BY MR. SPEREDELOZZI:

12 Q. Okay. And he is the second listed author?

13 A. Yes.

14 Q. It's pretty common for -- in science for people to

15 collaborate on a work?

16 A. Yes.

17 Q. So it's not uncommon to see two authors?

18 A. Not uncommon at all.

19 Q. Are you familiar with this paper?

20 A. I can't say that I am familiar with it.

21 Q. And without the benefit of having read it, I want to

22 see if you are in agreement with some of the things that are

23 stated here. I'll publish it.

24 The abstract is a summary of the paper, and the paper

25 is meant to address subjectivity and bias on DNA mixture

26 interpretation. And they found that 17 North American expert

27 DNA examiners were asked for their interpretation data from an

28 adjudicated crime case in the jurisdiction. They produced


81

1 inconsistent interpretations.

2 Did you -- have you heard about this at all?

3 A. I've heard Dr. Dror speak. So, yes, I have.

4 Q. Has he talked about this experiment?

5 A. I don't know that he talked about that experiment,

6 but he talked about cognitive bias, which is his subject area.

7 Q. And in this paper they found -- I'm going too far.

8 Page 205, the highlighted portion -- and I'll just

9 summarize it. But basically, here down here at the bottom of

10 the second paragraph, each of the 17 DNA examiners

11 independently examined evidence, and one of them gave "and one

12 of three conclusions for each suspects cannot be excluded

13 [sic] excluded or inconclusive."

14 In regard to suspect three, the results obtained from

15 the 17 independent DNA examiners varied. One examiner

16 concluded that the suspect cannot be excluded. Four examiners

17 concluded inclusive. 12 examiners concluded exclude. The

18 results are revealing in two ways. First, the fact that 17

19 DNA examiners were not consistent in their conclusions by

20 itself suggests there is an element of subjectivity in DNA

21 interpretation.

22 And I'm -- I feel like I'm being a tad unfair to you

23 because you're not familiar with this paper and so I'll keep

24 my questions limited.

25 But does that surprise you, I should say, that they

26 did an experiment, gave the same mixture information to 17

27 examiners and got results that were totally different from one

28 another, from excluded to included to inconclusive?


82

1 A. No, it doesn't surprise me because of two reasons.

2 One, it was a study to basically look at how much contextual

3 bias plays a role and they did not unify the interpretation

4 guidelines that these analysts were using.

5 So, basically, these 17 people were left essentially

6 to their own devices to interpret the DNA mixtures whereas,

7 you know, in our laboratory we have a set of interpretation

8 guidelines which every examiner is going to use. And so I

9 think that if you were to have -- or if he was to have -- give

10 a set of interpretation guidelines to follow that those

11 analysts may have come a lot closer together in their

12 conclusions.

13 Q. So you are -- the answer is you're not surprised?

14 A. Correct.

15 Q. Okay. Could you open up Exhibit 30 -- 32.

16 And by the way, sorry -- Exhibit 31. Can you just

17 take a look at that again? The date of this study was when?

18 A. 2011.

19 Q. July -- it was accepted on August 4th, 2011?

20 A. Possibly. I was just looking at the top of the page.

21 It was published in 2011 in the 51st edition.

22 Q. Right there. August 4th, 2011?

23 A. Okay. August 4th, 2011. I was looking at the top of

24 the page where the citation is "Science and Justice," 51,

25 2011.

26 Q. And so this was published just a few months after the

27 second trial in this case?

28 A. Yes.
83

1 Q. Now Exhibit 32.

2 A. Okay.

3 (Exhibit No. 32 identified for the record.)

4 BY MR. SPEREDELOZZI:

5 Q. Are you familiar with this paper?

6 A. I know that it was published, but it's not a journal

7 that I have access to.

8 Q. What's the name of the journal?

9 A. BMC Genetics.

10 Q. Is that a reputable journal?

11 A. I imagine so. I don't have access to it. I don't

12 know what it generally publishes, but it seems to be a

13 genetics journal.

14 Q. The authors are Beiber, Frederick Beiber. Do you

15 know who that is?

16 A. No, I don't know who Fred --

17 Q. You know who John Buckleton is, right?

18 A. Yes.

19 Q. Who is he?

20 A. He is the scientist from New Zealand that we

21 mentioned before.

22 Q. Okay. And he's a respected scientist in this field?

23 A. Yes.

24 Q. And Bruce Budowle. You know him, right?

25 A. Yes.

26 Q. Who is he?

27 A. He is a scientist that works at the University of

28 North Texas.
84

1 Q. And he is a respected scientist as well?

2 A. Yes.

3 Q. This paper was published in 2016?

4 A. Yes.

5 Q. And John Butler is also an author?

6 A. Yes.

7 Q. And you know who that is?

8 A. I do.

9 Q. He's pretty well known as well?

10 A. He is. He works for the National Institute of

11 Standards and Technology.

12 Q. I'm sorry. I couldn't hear you.

13 A. He works for the National Institute of Science --

14 Standards and Technology, NIST.

15 Q. NIST. These are some, quote/unquote, heavy hitters

16 in the field, right?

17 A. Sure. Yes, I'll agree with that.

18 Q. And they produce an opinion in this report. I've

19 highlighted it. I want to see if you agree. Are you -- and

20 you said you're not familiar with this study?

21 A. I knew that it was published, but I don't have access

22 to it so I haven't read it.

23 Q. And what I've highlighted here is what we were

24 talking about earlier that they published in 2016, that the

25 DNA -- and I'm on Page 2 of 3, the last paragraph. "If the

26 DNA crime stain profile is low level, then possibility of

27 allelic dropout should be considered. If allelic dropout is a

28 reasonable explanation for the observed DNA results, then the


85

1 CPI statistic cannot be used at those loci in which the

2 phenomenon may have occurred. The formulation of the CPI

3 statistic requires that the two alleles at each locus of the

4 donor be" --

5 THE COURT: Slowly.

6 BY MR. SPEREDELOZZI:

7 Q. -- "being considered must be above the analytical

8 threshold. Hence, if a profile or component of it is low

9 level, additional considerations are needed to ensure that

10 allelic dropout has not occurred at this locus."

11 Do you agree with that?

12 A. I would say, yes, I agree with it if you're answering

13 the question of who out there in the population could be a

14 contributor to the mixture.

15 Q. And that is the question that we're answering in

16 these DNA cases, isn't it? What other question would we be

17 answering?

18 A. Well, the question that my first reports on these

19 samples answers is basically, you know, whether it's

20 scientifically possible for this person -- any person to be a

21 contributor to a sample, and then the stat that I'm

22 calculating attempts to answer how many people in the

23 population would be included to the same extent as that

24 individual. And so that is a different question.

25 If you're going to answer the question of who could

26 be a contributor to the sample as a whole, then you would need

27 to take into account dropout and, therefore, CPI is not a good

28 tool to use to answer that question in mixture samples where


86

1 dropout is thought to or has occurred.

2 If you're answering the different question of who out

3 there in the population would be included to the same extent

4 as the person that I am comparing, then I think the CPI is a

5 calculation that can be used to answer and address that

6 question.

7 Q. This seems to be the prosecution's theme that you've

8 been talking about. You heard her opening statement, right?

9 This is sort of her theme, right?

10 A. Well, whether it's her theme or not, it's my answer

11 to the question of why these inclusions and conclusions that I

12 drew and offered testimony on why they are valid, and that's

13 what I'm trying to explain now.

14 Q. And I -- I'm going to cross-examine you on that -- or

15 direct examine you on that in this case. But before I do, we

16 have about five minutes left.

17 Do I have time to present one more exhibit,

18 Your Honor?

19 THE COURT: You do.

20 BY MR. SPEREDELOZZI:

21 Q. Do you know what the PCAST report is?

22 A. I do.

23 Q. Is that something that your lab considers when --

24 does that affect your case work or do you have any credence to

25 that whatsoever?

26 A. It was published. We made no changes based on its

27 publication.

28 Q. Did you read the section -- what is the PCAST report?


87

1 And I'll direct you to Exhibit 33.

2 A. The PCAST is the -- let's see if I can get the

3 acronym correct. The President's Council of Advisors on

4 Science and Technology. And it is a collection of academics

5 in various science disciplines who offer opinions and, I

6 guess, suggestions to the President on the topics of science

7 and technology.

8 (Exhibit No. 33 identified for the record.)

9 BY MR. SPEREDELOZZI:

10 Q. And they published this edition -- an edition in

11 September 2016, correct?

12 A. Yes.

13 Q. And just to be clear, that was when Obama was still

14 President, right?

15 A. Yes.

16 Q. And this is basically authored by scientists advising

17 the President on the state of forensic science in criminal

18 justice?

19 A. Yes.

20 Q. And, in fact, when they published this in

21 September of 2016, they addressed the issue of interpreting

22 mixture samples in DNA, correct?

23 A. Yes.

24 Q. In fact, they advised the President -- and I've

25 included in my exhibit the front page of the report. It's

26 a -- it's like 180-something page report, right?

27 A. I can't remember how long it was, but it was lengthy.

28 Q. And I've included just the section on their advice to


88

1 the President.

2 And you said you reviewed this, right, this section?

3 A. Yes.

4 Q. So you know that they actually discussed the 2011

5 study that I presented to you with Dror and Hampikian to test

6 whether relevant contextual information based on their

7 conclusion of examiners using DNA evidence from actual

8 adjudicated criminals -- and they used the example of a gang

9 rape case in Georgia, right? So they actually gave credence

10 to that paper, right?

11 A. Okay.

12 Q. And they came to some conclusions. They listened to

13 the -- they, after reviewing the paper, sort of restate its

14 analysis, and I've highlighted that here on page 77. Right?

15 A. Yes.

16 Q. They also talk about the -- the advice of the

17 President was also talking about the cases going on in Texas

18 right now. Are you familiar with those?

19 A. Yes.

20 Q. And the cases in Texas are dealing with the

21 interpretation of mixture samples, right?

22 A. Yes.

23 Q. And the Texas District Attorney's Office -- Houston,

24 I think, District Attorney's Office is reviewing cases

25 where -- where the CPI statistic was used inappropriately,

26 right?

27 A. I couldn't speak to what Houston is doing or the DA's

28 office in Houston is doing.


89

1 Q. And here, the whole issue -- or one of the main

2 issues that is the problem with -- in their mind, the problem

3 with the way things used to be interpreted is the way that

4 analysts deal with this phenomenon of allelic dropout. Isn't

5 that what it says on Page 78, the first paragraph?

6 A. Yes.

7 Q. Okay. And so that's the concern that the forensic

8 scientists have about mixture sample. And that pretty much

9 relates to exactly this case, right?

10 A. There is dropout potentially happening at the markers

11 in this case. And so in that regard, yes, it is. And in

12 regard to how the CPI calculation is calculated and what

13 question it's answering, that publication doesn't address that

14 at all.

15 Q. This idea that the CPI statistic and whether

16 somebody's an inclusion or an exclusion and this idea that

17 it's actually subjective when the expectation is that it's

18 objective, they in summary -- they actually advise the

19 President, Obama, that this is not -- this is not good, right?

20 That's their advice to him? This is not appropriate?

21 A. Yes.

22 Q. In fact, they say, "The interpretation of complex DNA

23 mixtures with the CPI statistic has been inadequately

24 specified and thus inappropriately subjective method. As

25 such, the method is clearly not foundationally valid."

26 A. That was their opinion, yes.

27 Q. And you don't agree with that?

28 A. No.
90

1 MR. SPEREDELOZZI: Okay. I think it's time for our

2 lunch now.

3 THE COURT: I think it is.

4 Counsel, feel free to leave anything you'd like to on

5 counsel table. It will not be disturbed.

6 Does 1:30 work for both counsel?

7 MS. BANNON: Yes.

8 MR. SPEREDELOZZI: Yes.

9 THE COURT: Thank you. We'll be in recess until

10 1:30.

11 THE WITNESS: Thank you, Your Honor.

12 (Lunch recess taken.)

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91

1 San Diego, California; Monday, May 22, 2017; 1:36 p.m.

2 -- O0O --

3 THE COURT: Good afternoon, ladies and gentlemen.

4 This is the afternoon session of the first day of the

5 evidentiary hearing in the matter of Florencio Dominguez and

6 his petition for writ of habeas corpus.

7 The record will reflect that all parties and counsel

8 announced this morning are present.

9 Mr. Montpetit has resumed the witness stand. Thank

10 you, sir.

11 And Mr. Speredelozzi, you may continue your

12 examination.

13 MR. SPEREDELOZZI: Thank you, Your Honor.

14 Before I do, I just wanted to tell the Court that I

15 just passed along two more documents that I'm going to ask to

16 have marked as 46 and 47. These are documents that my expert

17 Suzanna Ryan sent to me. I'm not going to use them in the

18 examination of Mr. Montpetit; however, I may use them tomorrow

19 and during her direct examination.

20 And I did up -- I have a shared Goggle drive with all

21 the electronic exhibits on it. I've shared them

22 electronically with the prosecutor. I also printed out two

23 copies and handed them to her just now.

24 THE COURT: Thank you. So you have the hard copies

25 of 47 and 48 to give to the clerk?

26 MR. SPEREDELOZZI: I believe it's 46 and 47.

27 THE COURT: 46 and 47. My apologies.

28 MR. SPEREDELOZZI: And it's -- 46 is this one,


92

1 American Society of Crime Lab Directors, Laboratory

2 Accreditation Board. It is documents regarding the

3 investigation of the Broward Sheriff's Office in Florida for

4 Broward County.

5 And then an audit of the Texas -- excuse me -- Texas

6 Forensic Science Commission, they completed that audit on DNA

7 evidence in Texas on this issue. And so that's Exhibit 47.

8 (Exhibit No. 46 identified for the record.)

9 (Exhibit No. 47 identified for the record.)

10 THE COURT: Thank you. They'll be so marked.

11 MR. SPEREDELOZZI: I will update an exhibit list this

12 evening and send one around to Court and counsel.

13 THE COURT: Thank you.

14 MR. SPEREDELOZZI: May I inquire?

15 THE COURT: You may.

16 MR. SPEREDELOZZI: Thank you.

17 BY MR. SPEREDELOZZI:

18 Q. Welcome back, Mr. Montpetit.

19 We left off reviewing some documents before the break

20 regarding -- some of them were journal articles, one of them

21 was a PCAST report. And I have some follow-up questions about

22 those generally.

23 But before I go into that, I wanted to talk to you

24 about something you'd mentioned -- something you'd mentioned

25 or alluded to before the break, which was the idea that there

26 are two different questions that we're dealing with here.

27 Can you help me and the Court understand what you

28 mean by that, what questions?


93

1 A. The questions would be the statistical questions that

2 you can answer using a CPI calculation. The first question

3 tends to ask who out there in the population could be a

4 contributor to the mixture as a whole?

5 And the second question which you could ask is if you

6 determine somebody's included, what's the chances that a

7 person randomly selected at the population would be included

8 to same the degree as the person you've included? So what's

9 the significance of that association?

10 Q. I'm still not understanding the difference between

11 the two questions. What -- and I guess the point that you

12 were trying to make -- and correct me if I'm wrong -- is that

13 your analysis that -- and the technical work that you did

14 prior to these trials that we've been talking about was

15 answering one question. Yet you produced a report later on --

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

18 constitutes a, quote/unquote, repudiation --

19 A. Uh-huh.

20 Q. -- you're claiming those two reports are answering

21 two different questions?

22 A. Yes.

23 Q. So the report in this case, the one that was produced

24 prior to the April 2011 trial, was supplemental report 6

25 evidence -- Exhibit 7. What question were you answering in

26 that report?

27 A. Who in the population could be included to the same

28 degree as Mr. Dominguez or what is the probability that


94

1 somebody picked at random from the population would be

2 included to the same degree as Mr. Dominguez is included?

3 Q. And you're also answering the question of whether or

4 not he is included as a minor contributor to the sample?

5 A. So, yes, my conclusion was that I could not exclude

6 him or he was included as a possible minor contributor and

7 then the stat attempts to address the significance of that

8 association.

9 And the question that I am answering in those reports

10 for the first and second trials are who in the population just

11 by chance alone might be included to the same degree as

12 Mr. Dominguez.

13 Q. Included in what? Included in the biological sample?

14 A. Included to the evidentiary sample, yes.

15 Q. Okay. And how is that different from the question

16 you're answering in the analysis you did in supplemental 8?

17 A. The --

18 Q. And that would be, just for the record -- sorry,

19 Mr. Montpetit -- that would be Exhibit 9.

20 And I can publish that now. Exhibit 9, supplemental

21 report 8, authored by you May 8th, 2015.

22 A. So I think in order to properly answer that question,

23 I need to sort of give context of sort of what was going on in

24 the forensic community, especially the DNA community, between

25 2011 and 2016 or 2015 when this report was published.

26 (Exhibit No. 9 identified for the record.)

27 BY MR. SPEREDELOZZI:

28 Q. Well, it's a simple question. You said there's two


95

1 separate questions.

2 A. Yes. And so --

3 Q. What question are you answering in this report?

4 A. The question is basically who would be -- who would

5 be included as a contributor to the sample.

6 Q. As a minor contributor?

7 A. As a minor contributor to the sample.

8 Q. And how is that different from the question you

9 answered prior?

10 A. The question I answered prior uses the -- essentially

11 the degree to which the person of interest was included, in

12 this case Mr. Dominguez. I included him at 14 out of 16

13 markers. And the stat was basically on 12 out of 16 markers.

14 And I was trying to establish the answer to the

15 question who else in there -- who else out there in the

16 population would be expected to match to the same degree as

17 Mr. Dominguez.

18 And then the second report or the supplemental 8

19 report, we're trying to answer the question of who out there

20 in the population could just be a contributor to the sample,

21 not considering Mr. Dominguez as inclusion.

22 And so in order to do that, they're different

23 questions and they require different calculations.

24 Q. I'm really trying to understand the point, really.

25 A. I'm really trying to explain it.

26 Q. The -- and this is -- and forgive me for

27 oversimplifying this. But isn't the question quite simple?

28 Is Mr. Dominguez a minor contributor or is he not a minor


96

1 contributor or, alternatively, as a third option, is it just

2 inconclusive based on the evidence? I mean, that seems

3 like -- it seems to me like it's the same question but

4 different answers.

5 A. So the question of whether they're included -- or

6 somebody is included or not is one question. And that is

7 answered in -- or in both reports.

8 But then the follow-up to that is if I have an

9 inclusion, I -- I am required to supplement with that with

10 some estimate as to the significance of that inclusion. And

11 depending on whether I am looking to see who out there in the

12 population could be a contributor to the same extent as

13 Mr. Dominguez was included is a different calculation as to

14 whether somebody out there in the population could just be

15 included to the mixture, and that has to do with the concept

16 of dropout.

17 Q. So the distinction you're making then is in the prior

18 reports you were talking about just what you see and not the

19 actual mixture, not the biological evidence but the profile

20 that you generated?

21 A. Well, it is a profile that's based off the evidence

22 and the DNA types and the evidence in both instances. But in

23 one, I am considering that a dropout has occurred and I am

24 excluding loci from the calculation where dropout has occurred

25 in addition to other loci that are similar to those loci, they

26 are also excluded from the calculation.

27 And this -- or the supplemental 8 report, I'm looking

28 at, okay, can I do an inclusion or exclusion? And then the


97

1 calculation that I'm trying to do is who would be contributing

2 to the sample as a whole? And in order to do that, I would

3 need to incorporate dropout into the calculation and the CPI

4 calculation is not a calculation that is designed for

5 incorporating that information.

6 So in the first calculation, because CPI is not able

7 to incorporate dropout, I am basically looking at the profile

8 and then omitting loci because the -- could not be used in the

9 calculation. And in the second calculation, I am looking to

10 basically -- you know, I can't use the CPI to answer that

11 question so I was not able to calculate it for that second

12 question.

13 Q. So the distinction is before the trial you're

14 answering the question is -- can I include him as a minor --

15 can I include anybody, say, Florencio Dominguez as a minor

16 contributor to the sample using only the data that I see and

17 not considering allelic dropout? And the second question is

18 can I include him in this sample if I, in fact, consider

19 allelic dropout?

20 A. I think we're almost there but not quite. The --

21 both the question of whether or not the individual is included

22 or not requires me to consider dropout. The first question

23 that I answered in supplemental 3 and 6 -- is it 2 and 6?

24 Supplementals 2 and 6?

25 Q. I think it's -- yes, I think it's 2 and 6. Exhibit 3

26 and Exhibit 7.

27 A. That question essentially has me look at the DNA

28 profile, see where the defendant or the person of interest or


98

1 whoever I'm including into that where they match to the

2 evidence and where they do not.

3 If they do not match to the evidence, is there a

4 scientifically supportable reason for that non match to occur?

5 If there's not a scientifically justifiable reason, I would

6 have to exclude.

7 In this case, I had reason to believe that dropout

8 was probable and likely causing that non concordance at those

9 markers. And so based off of those markers, I excluded not

10 only those but additional ones that matched up in the same

11 size range as those individual markers. I excluded those from

12 the calculation in an attempt to estimate what is the

13 probability that somebody picked at random from the population

14 would match to the same degree as Mr. Dominguez. And so that

15 required me to only use 12 of those 16 markers.

16 Subsequently, we changed the question. The community

17 has sort of had these debates as to which question is more

18 relevant.

19 Q. What community?

20 A. The forensic DNA community. And the forensic DNA

21 community has, you know, decided that, you know what, the

22 second is probably a more relevant question to ask.

23 And so in order to calculate who in the population

24 could be a contributor to the mixture, I would need to

25 incorporate dropout. The first time I didn't incorporate

26 dropout into the calculation because I excluded loci.

27 In order to answer the second question, I would have

28 to incorporate dropout into the calculation and the CPI


99

1 calculation cannot do that.

2 Q. The reason that the forensic DNA community decided

3 that the first question wasn't as relevant was because it's

4 potentially misleading, correct?

5 A. There's definitely potential for people to misapply

6 it, yes.

7 Q. And it's potentially a way to, like we talked about

8 earlier, give a prosecution -- prosecution-centric biased

9 interpretation of the data?

10 A. It would depend on the protocols that the labs

11 followed to calculate those procedures. But it's possible,

12 yes.

13 Q. So this happened prior to the trial sometime in I

14 believe it was January 2010. There is an organization called

15 SWGDAM, right?

16 A. Yes.

17 Q. What is SWGDAM? What does that stand for?

18 A. SWGDAM is a Scientific Working Group for DNA Analysis

19 Methods.

20 Q. So that's S-W-G-D-A-M?

21 A. Correct.

22 Q. And who are they?

23 A. SWGDAM is a group that is, I guess, sort of

24 administered by the Federal Bureau of Investigation. It's a

25 collection of forensic scientists from the local, state and

26 federal level that are invited to participate in discussions

27 and in an attempt to come up with guidelines, documents,

28 standards documents. Ultimately they're in charge of the


100

1 quality assurance standards for forensic biology.

2 Q. And they amended their guidelines for interpreting

3 mixture sample in January of 2010, correct?

4 A. I can't remember the specific date, but 2010 at some

5 point, yes.

6 Q. Can you -- in the exhibit binder, there's Exhibit 15.

7 A. Okay.

8 (Exhibit No. 15 identified for the record.)

9 BY MR. SPEREDELOZZI:

10 Q. Let me open it on my end. This is a 28-page

11 document. It's entitled "SWGDAM Interpretation Guidelines for

12 Autosomal STR Typing by Forensic DNA Laboratories"; is that

13 correct?

14 A. Yes.

15 Q. Did I pronounce that right? Autosomal?

16 A. Autosomal, yes.

17 Q. This is the guidelines that we were just discussing a

18 moment ago?

19 A. Yes.

20 Q. These were published, it says here, January 4th,

21 2010. Does that sound correct to you?

22 A. It says January 14th, 2010.

23 Q. January 14th, 2010?

24 A. Yes.

25 Q. And if I could direct you to -- I think it's

26 Rule 3.6.1, and I can find the page here. Page 11, bottom of

27 the page.

28 A. Yes.
101

1 Q. Second from the top. This was one of the guidelines

2 that was added to their recommended procedures for

3 interpreting mixture samples, correct?

4 A. It is a guideline. I don't know if it was added or

5 if it existed before, but --

6 Q. The guideline says, "The laboratory must establish

7 guidelines to ensure that, to the extent possible, DNA typing

8 results from evidentiary samples are interpreted before

9 comparison with any known samples other than those of assumed

10 contributors." Right?

11 A. Yes.

12 Q. So what is -- what is that guideline stating in sort

13 of plain English?

14 A. Interpret the -- your evidentiary sample prior to

15 interpreting your reference samples.

16 Q. Does that -- do you understand that to mean what we

17 had discussed earlier during direct examination this morning

18 where you sort of choose which loci are suitable for

19 comparison prior to looking at or observing the reference

20 samples that you're going to compare to that mixture sample?

21 A. Yes.

22 Q. And so this guideline is something that you violated

23 when you did your interpretations on 16-2, 16- -- 17-2, 17-3,

24 16-3?

25 A. I don't think I would use the term "violated," no.

26 Q. Well, you -- you didn't follow this -- you didn't

27 follow this guideline?

28 A. I would say that I did interpret the mixture prior to


102

1 interpreting the reference samples.

2 Q. You did not choose which loci to -- choose which loci

3 is suitable for comparison prior to observing the reference

4 samples, though, correct?

5 A. That is correct. I chose the loci after making my

6 inclusion.

7 Q. Okay. Then Exhibit --

8 THE COURT: Wait a minute. You chose the loci after

9 making your inclusion. What do you mean? After looking at

10 the reference sample you chose the loci?

11 THE WITNESS: So after looking at the -- our process

12 was to look at the evidentiary profile, evaluate that for a

13 variety of things, including number of contributors, the

14 quality of the results, whether there's any degradation or

15 inhibition going on. And after making determinations on

16 answers to those questions, then we look at reference samples

17 to determine whether or not they could be included or excluded

18 from the samples.

19 THE COURT: Did I understand your testimony this

20 morning to be, however, that it wasn't until after you looked

21 at the known reference samples that you then decided which

22 alleles to look at which may not have been present but might

23 have been caused by dropout?

24 THE WITNESS: When I'm doing the comparison to

25 evidentiary profiles, if there's any inconsistencies with the

26 reference sample that I'm looking at, at that point I then

27 look to see based on my evaluation of the evidence whether

28 those inconsistencies are supportable or not based on the


103

1 evidence.

2 And so questions that I'm considering are, you know,

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

6 getting a good representation of intensities of the DNA types?

7 Or are they markers that don't have as much representation?

8 THE COURT: And you're talking about markers in the

9 mixture?

10 THE WITNESS: In the evidence sample.

11 THE COURT: The unknown evidence sample mixture?

12 THE WITNESS: Correct.

13 THE COURT: And I think you told us this morning that

14 you might come up with different answers to that question

15 depending on which known reference you were looking at.

16 In other words, you wouldn't use the same identical

17 DNA genetic number or profile for the reference sample -- I'm

18 sorry -- for evidentiary samples against all of the reference

19 samples?

20 THE WITNESS: That is correct. Depending on which

21 reference sample I was looking at would determine the level of

22 their inclusion, and then the stats that I would do would try

23 to represent who out there in the population could be included

24 to the same degree as each of the reference samples.

25 THE COURT: So to be clear then, if you have the

26 evidentiary sample, the process is not to create a DNA profile

27 off of that and then compare that profile to all the reference

28 samples. Instead you will look and make that determination as


104

1 you compare it to each reference sample?

2 THE WITNESS: That was our procedure, yes.

3 THE COURT: All right. Thank you.

4 MR. SPEREDELOZZI: Thank you, Judge.

5 BY MR. SPEREDELOZZI:

6 Q. Let's go to the next rule, which of interest to me is

7 Rule 4 -- or excuse me, Guideline 4.6.3. Whoops. I overshot

8 it.

9 And that's on, I believe, Page 14 of Exhibit 15.

10 These are numbered. Yes, 14 of 28.

11 Now, this one is -- really crystallizes the issue

12 here. What is this rule? Can you read it for the Court,

13 4.6.3.

14 A. "When using CPE or CPI with no assumption of number

15 of contributors to calculate the probability that a randomly

16 selected person would be excluded or included as a contributor

17 to the mixture, loci with alleles below the stochastic

18 threshold may not be used for statistical purposes to support

19 a conclusion. In these instances, the potential for allelic

20 dropout raises the possibility of contributors having

21 genotypes not encompassed by the interpreted alleles."

22 Q. What are they getting at with this guideline? What

23 is SWGDAM telling forensic examiners?

24 A. Essentially that if you -- if you're missing

25 information at a genetic marker that you're using to include

26 somebody, you cannot include that locus in the calculation

27 because that would tend to inflate the stat against that

28 person and it -- that locus is inconsistent with the


105

1 inclusion.

2 Q. And that's at any loci where the -- where you detect

3 alleles in the stochastic threshold?

4 A. Potentially, yes.

5 Q. Well, I'm not asking your opinion or what you think

6 is right. I'm asking what the guideline says. The guideline

7 says you can't do it if there are alleles that are below --

8 that are -- excuse me -- in the stochastic range, you can't

9 use that locus for statistical purposes or for purposes of an

10 inclusion?

11 A. Yes, that is a strict reading of 4.6.3.

12 Q. The analysis you did in this case for 17-2, 16-2,

13 17-3, 16-3, you used alleles -- you used -- excuse me -- loci

14 where alleles were in the stochastic range to calculate CPI

15 statistics against Mr. Dominguez, didn't you?

16 A. I did.

17 Q. And then you testified to those statistics the both

18 trials, the one in October 2010 and again in April 2011?

19 A. Yes.

20 Q. So these guidelines were actually in effect or

21 published, I should say, during the trial of this matter?

22 A. Yes.

23 Q. During both trials actually?

24 A. Yes.

25 Q. But the San Diego local standard -- SOPs -- help

26 me --

27 A. Protocols?

28 Q. Yeah, SOPs.
106

1 A. Standard operating procedures.

2 Q. Standard operating procedures, right. Thank you.

3 The San Diego Police Department standard operating

4 procedures did allow for you to use loci that contained

5 alleles in the stochastic range, right?

6 A. Yes.

7 Q. So you were following your local crime lab's SOPs at

8 the time?

9 A. Yes.

10 Q. And so there was no -- nothing for me to

11 cross-examine you on on that trial that you violated some

12 internal policy or anything like that?

13 A. Correct, I did not. I followed my SOP which allowed

14 me to use the loci that I did.

15 Q. But your SOPs changed in April of 2011, the same

16 month as this trial, right?

17 A. The second trial, yes.

18 Q. Thank you. The second trial.

19 They changed in -- they basically changed in response

20 to the SWGDAM guidelines as well as some other literature that

21 had been coming out at the time?

22 A. Yes. I think that would be fair to say.

23 Q. Is it also fair to say that at the time there were

24 other crime labs in the State of California and throughout the

25 United States and maybe even further than that that were also

26 changing because of these guidelines, changing their

27 interpretation procedures?

28 A. I would say that would be a fair assessment, yes.


107

1 Q. Like, for example, Houston -- the crime lab in

2 Houston, they changed their guidelines, right, and then they

3 did an audit?

4 A. I don't know what specifically Houston did with

5 their -- with their guidelines.

6 Q. Does the sheriff's department have a -- San Diego

7 Sheriff's Department, do they have a crime lab that analyzes

8 DNA?

9 A. Yes.

10 Q. And do you know if they've changed their guidelines

11 as well?

12 A. I couldn't tell you, you know, how many times if and

13 when they've changed their guidelines. I know they've changed

14 now because they're using a different kit and interpretation

15 software. But I couldn't tell you at the time if they made

16 any changes.

17 Q. So when these guidelines were published in January,

18 it's not as if snap a finger and the guidelines across the

19 forensic community internally change with it. There's some

20 time that has to go by for the crime labs to sort of catch up

21 to what SWGDAM is recommending, right?

22 A. I would say that that is -- is fair to say, that as

23 soon as SWGDAM publishes something that nothing changes

24 overnight.

25 Q. Okay. And that's typically just like science in

26 general that the change in science is something, generally

27 speaking, that it doesn't just happen at a moment, it takes

28 multiple studies, multiple reviews, peer reviews of those


108

1 studies and sort of scientific concepts and theories

2 crystallized over time. Would you agree with that?

3 A. Yes.

4 Q. Okay. So science is very fluid in general and you

5 can't really put a mark on when one theory changes or gets

6 proven false or gets proven true or anything like that; is

7 that fair as well?

8 A. That would be accurate, yeah.

9 Q. And in April of 2012, the guidelines in the standard

10 operating procedures for mixture interpretation for -- for

11 your lab, you actually implemented those changes, correct?

12 A. I'm sorry. April 2012?

13 THE COURT: What year?

14 MR. SPEREDELOZZI: Yes. 2011.

15 THE WITNESS: 2011.

16 BY MR. SPEREDELOZZI:

17 Q. Thank you. I appreciate that.

18 A. Yes, we implemented changes in 2011, yes.

19 Q. But specifically you as the technical leader,

20 technical manager of that -- of the biology forensic lab, you

21 were the one that implemented that?

22 A. I'm in charge of the policies and procedures. And,

23 yes, I guess it would be fair to say that I changed those

24 procedures.

25 Q. And do you have Exhibit 14?

26 A. Yes.

27 (Exhibit No. 14 identified for the record.)

28 ///
109

1 BY MR. SPEREDELOZZI:

2 Q. This is a memorandum from the police department to

3 the District Attorney's Office, correct?

4 A. It's actually from me to the District Attorney's

5 Office, yes.

6 Q. You're the author of this memorandum?

7 A. Yes.

8 Q. And in the memorandum, you were communicating that

9 the SWGDAM guidelines had changed, correct?

10 A. I think I indicated that they were published and we

11 made some changes in accordance with those.

12 Q. And the changes -- the two rules that we just went

13 over -- excuse me for calling them rules -- guidelines,

14 they're guidelines -- 4.6.3 and 3.6.1, those guidelines were

15 something that the police department updated its standard

16 procedures to be in harmony with; is that fair?

17 A. Yeah, I would say we -- we made changes to come more

18 in line with the -- with the spirit of the -- or with the

19 literal translation of the guidelines.

20 Q. Let's see here. At Page 2 going into Page 3, the

21 last paragraph of Page 2 to the first paragraph of Page 3, you

22 informed the District Attorney's Office that the effect of the

23 changes will alter how minor DNA contributors are interpreted

24 in which DNA markers will be used for statistical calculations

25 or inclusions, and then you further stated, "It is likely that

26 the new guidelines will result in more samples that cannot be

27 interpreted due to their complexity and low level." Right?

28 A. Yes.
110

1 Q. And these guidelines went into effect after you had

2 testified in this case?

3 A. It was right around the same time, yes.

4 Q. Right around the same time?

5 A. I believe so. I think that was in May. So it

6 depends on when the trial was.

7 Q. Your testimony was, I believe, April 5th, 2011, going

8 into April 6th, 2011; is that fair?

9 A. That sounds about right. And I think the guidelines

10 went into effect around the 1st of April.

11 Q. The 1st of April?

12 A. Possibly.

13 Q. So these guidelines changed before your testimony?

14 A. Yes, possibly. It was right around the same time,

15 like I said.

16 Q. The guidelines never came up during the trial. Your

17 SDPD guidelines were never discussed during your testimony,

18 right?

19 A. Not that I recall.

20 Q. And the report that you produced, Exhibit 7,

21 supplemental report 6, were based on the old guidelines?

22 A. Correct.

23 Q. And I'm talking about the old San Diego Police

24 Department standard operating procedures, right?

25 A. Yes.

26 Q. And the testimony you gave was based on the old

27 guidelines as well?

28 A. Correct.
111

1 Q. And you never mentioned that new San Diego Police

2 guidelines might change your opinion during the

3 cross-examination or direct examination in April of 2011?

4 A. I don't think I ever did, no.

5 Q. And you've said that the guidelines went into effect

6 around April?

7 A. Yes.

8 Q. Do you have Exhibit 45?

9 That's actually -- let me help you because that's not

10 in the binder. You found it.

11 A. Uh-huh.

12 (Exhibit No. 45 identified for the record.)

13 BY MR. SPEREDELOZZI:

14 Q. Are those portions of the guidelines from the police

15 department?

16 A. It looks to be two pages from our interpretation

17 guidelines, yes.

18 Q. And here, I'll publish it. Exhibit 45, Page 150 and

19 163 out of 185-page document, right?

20 A. Yes.

21 Q. And these are the new San Diego Police Department

22 guidelines?

23 A. They were the ones that went into effect in April of

24 2011, yes.

25 Q. And it says that they were implemented at the bottom

26 here April 1st, 2011?

27 A. Yes.

28 Q. So if you testified on April 5th, you testified after


112

1 these guidelines went into effect?

2 A. Correct.

3 Q. Did you ever think, maybe I should mention this to

4 the defense attorney when he's cross-examining me?

5 A. When we implemented the procedures, the process of us

6 implementing is to look and see what the changes being made

7 and whether that invalidates anything that we've previously

8 done. If we thought that we had invalidated anything that we

9 had previously done, we would have, you know, gone through the

10 process of, you know, redoing all of those reports.

11 Q. Did you --

12 A. Because we evaluated -- I'm sorry. Were you going to

13 ask --

14 Q. I'll let you finish your answer, sir.

15 A. Because we evaluated the changes that we were making

16 and we basically viewed it as just changing up the question

17 that we were answering, we didn't think that that invalidated

18 the question that we were answering before and that we could

19 explain exactly why we came to the decisions that we did and

20 came to the statistical calculations that we did.

21 Q. When you were testifying on April 5th and April 6th

22 of 2011, did you know that the new San Diego Police Department

23 guidelines would render a different opinion or different

24 result in this particular case?

25 A. I'm not too sure whether I was making that sort of

26 conscious comparison or not. I was basically trying to do

27 work and then asked to testify in a case. So I'm not too sure

28 that that ever went through my mind.


113

1 Q. Did you ever tell the district attorney in this

2 case -- his name was Kristian Trocha -- do you remember him?

3 A. Yes.

4 Q. Do you remember ever telling Mr. Trocha that, hey, by

5 the way, there's some new guidelines that came out five days

6 ago and they're relevant in this case?

7 A. I don't recall ever having that discussion with him,

8 no.

9 Q. And having not told either Mr. Trocha or me -- and

10 you recognize me as the trial attorney on that case, right?

11 A. Yes.

12 Q. And you certainly never called me to tell me about

13 the guidelines that had just changed five days prior to your

14 testimony?

15 A. No.

16 Q. And I cross-examined you in that case for probably a

17 day, day and a half, right?

18 A. I think it was more than a day for sure.

19 Q. And I never cross-examined you on this issue, these

20 new guidelines, right?

21 A. Not the new guidelines, no.

22 Q. I cross-examined you on the SWGDAM guidelines,

23 correct?

24 A. Yes.

25 Q. And I was very concerned -- did it appear as though I

26 was very concerned that your testimony was not in concordance

27 with the recommended guidelines by SWGDAM?

28 A. You cross-examined me on the concept of dropout at


114

1 length, yes.

2 Q. And, again, having been made aware that I was

3 concerned about dropout, I was concerned about -- the defense

4 was concerned about the guidelines having been not followed,

5 you, again, during your cross-examination never even mentioned

6 to me not once during that day and a half that new guidelines

7 had come out that were relevant to the SWGDAM guidelines?

8 A. As I said, I don't think I ever mentioned it.

9 Q. The guidelines that you published in -- or that the

10 San Diego Police crime lab published in April of 2011, they,

11 in fact, they did -- they were relevant to this case, weren't

12 they?

13 A. They -- I'm not sure how to answer that question.

14 Q. You got a phone call from me or maybe it was an

15 email -- I don't remember -- sometime in 2015, right?

16 A. Yes, yes. You did call me in 2015.

17 Q. I told you that I had been working on another case.

18 I was reviewing some DNA evidence, and it looked different

19 than what I had seen in the past. Is that -- I don't remember

20 exactly what I said, but does that sound about right?

21 A. I remember that you said you were cross-examining

22 another analyst in the case and he'd mentioned that we changed

23 our guidelines, and so you were calling to ask what effect

24 that would have had.

25 Q. And I asked you if you'd sit down with me and talk?

26 A. Yes.

27 Q. And out of fairness, you insisted we invite

28 Mr. Trocha?
115

1 A. Yes.

2 Q. And I didn't have a problem with that, right?

3 A. Correct.

4 Q. So me, you and Mr. Trocha sat down and we discussed

5 this at your office in downtown San Diego?

6 A. That's correct, yes.

7 Q. And I asked you at the time did the new guidelines

8 affect your interpretation on this matter, right?

9 A. You asked if I were to interpret under the new

10 guidelines, what would the effect be?

11 Q. And I then asked you if you would do -- in fact, do

12 a -- a new interpretation and you agreed to do so?

13 A. I did.

14 Q. And you produced a report on that interpretation?

15 A. Yes.

16 Q. I believe it's Exhibit 9 in your binder, sir.

17 Showing you on the screen and also in front of you in

18 the exhibit binder is Exhibit 9, a supplemental forensic DNA

19 report number 8, this is a document authored by you, sir?

20 A. Yes.

21 Q. That you produced this report on May 8th, 2015,

22 correct?

23 A. Yes.

24 Q. You reanalyzed under the new San Diego Police

25 Department interpretation guidelines two pieces of evidence,

26 16-3 and 17-3?

27 A. Yes.

28 Q. And you expressed your results of that analysis in


116

1 this report?

2 A. Yes, I did.

3 Q. And the report says that, "Due to the low level" --

4 and I'm reading from conclusion number one, third paragraph, I

5 believe that's Page 1 -- "Due to the low level and unknown

6 number of contributors, no statistical calculations or

7 comparisons can be made regarding potential minor DNA

8 contributors."

9 A. That's correct.

10 Q. And that's because the San Diego Police Department

11 standard operating procedures would prevent you from analyzing

12 a DNA mixture sample where some of the alleles are in the

13 stochastic range?

14 A. It's because we changed the question that we were

15 asking statistically to that second question we'd referred to

16 before and the calculation would need to include the potential

17 for dropout. And since the CPI calculation cannot do that, we

18 weren't making any comparisons to minor contributors for that

19 reason.

20 Q. So the question is can you make any comparisons for

21 minor contributors? Forget about the statistics. Can you

22 make any comparisons for minor contributors prior to -- to

23 this report being written, prior to April 1st, 2011, when

24 this -- the SOPs changed for the San Diego crime lab, San

25 Diego Police Department crime lab, the question to that answer

26 was yes, yes, you can?

27 A. Could I make comparisons to minor contributors prior

28 to April 2011? That's your question?


117

1 Q. Yes.

2 A. Okay. Then yes.

3 Q. After April 1st, 2011, same question, can you make

4 any comparisons and make any determinations as to minor

5 contributors to the same sample? Now the answer to the

6 question is no.

7 A. The answer to that question is it depends. The

8 standard operating procedures, the interpretation guidelines

9 that were implemented in April of 2011 basically allowed for

10 us to use the -- make comparisons to minor contributors if we

11 could support it with a statistical calculation. And our

12 protocols did allow us in certain situations to make those

13 comparisons and provide a stat to minor contributors. So it

14 depended on the mixture.

15 Q. Let me get more specific.

16 With regard to 16-3, prior to April 1st, 2011, the

17 question is, can I make any determinations with this mixture

18 sample -- can I make any determinations/comparisons as to

19 minor contributors prior to April 1st, 2011?

20 The answer to that question was yes?

21 A. Correct.

22 Q. Same sample, 16-3. Question is, can I make any

23 comparisons or -- or opinions as to minor contributors with

24 regard to 16-3 after April 1st, 2011?

25 A. The answer is I could not.

26 Q. The answer is no?

27 A. Right.

28 Q. And that is true for 17-3?


118

1 A. Yes.

2 Q. And even though this report doesn't address that

3 question, it's also true for 16-2?

4 A. Yes.

5 Q. And so that is all of the items that you testified to

6 at trial number 2 in April of 2011, those are all the items

7 where you included Mr. Dominguez as a possible minor

8 contributor with regard to the gloves?

9 A. Yeah, with regard to the gloves, yes.

10 Q. You also -- after you wrote this report, I contacted

11 you again and asked you to fill out a declaration that I

12 planned to file at the court?

13 A. Yes.

14 Q. I just lost my place. Give me one second.

15 Okay. Here I am. It was on the next page.

16 So you -- I contacted you, I think via email, and I

17 think I told you I thought this was important or something

18 like that, and I thought it would be helpful for you to sign a

19 declaration as opposed to just submitting your report, right?

20 A. Yes.

21 Q. And I wrote a declaration, then sent it to you?

22 A. Yes.

23 Q. And I never forced you to sign the declaration. How

24 could I, right?

25 A. Correct.

26 Q. And I also told you if there's any problems with it,

27 if it's not accurate, or if you think you want to add

28 something, you can -- I will work with you; we'll work on the
119

1 declaration so that you're satisfied, right?

2 A. Yes.

3 Q. And you were under no obligation to do that for me as

4 the analyst. You just -- I assume you are of the philosophy

5 that you don't work for either side. You just work for the

6 truth?

7 A. Correct.

8 Q. So you actually did make an edit or two. I don't --

9 personally, I don't remember what it was, but we went back and

10 forth for a little while on this declaration, right?

11 A. I remember changing substantial portions of it, yes.

12 Q. But then finally you were satisfied and you signed

13 the declaration so that I could -- you knew I was going to

14 file it at court?

15 A. Yes.

16 Q. Supplemental -- excuse me, Exhibit 11. Showing you

17 Exhibit 11. It's in the binder. Can you find it?

18 A. Yes.

19 (Exhibit No. 11 identified for the record.)

20 BY MR. SPEREDELOZZI:

21 Q. It is a declaration of Shawn Montpetit. This is the

22 declaration that we worked on back and forth and you signed

23 this declaration. This is your signature on Page 3?

24 A. Yes.

25 Q. And you dated that?

26 A. Yes.

27 Q. And you testified -- you basically testified under

28 penalty of perjury or you stated under penalty of perjury


120

1 information that was consistent with the report that we just

2 went over basically that if you were called to testify at

3 trial and you had to testify to the standard operating

4 procedures that were in effect when you wrote your report

5 supplemental 8 that you would testify to item number 24 on the

6 declaration, right?

7 A. If I were to testify to the report dated May 8th,

8 2015, yes, that's what I would testify to.

9 Q. Basically that no comparisons can be made regarding

10 minor DNA contributors and no statistical calculations can be

11 made regarding potential minor contributors?

12 A. Correct.

13 Q. So then you -- not too long after that you heard from

14 the District Attorney's Office?

15 A. Yes.

16 Q. And they asked you to sign a declaration as well?

17 A. They did.

18 Q. Who approached you?

19 A. I -- I remember Kristian Trocha. I don't know if

20 anybody else did at that time.

21 Q. And what was said?

22 A. Essentially that you'd filed a writ of habeas corpus

23 and there was a declaration in there and they would like me to

24 do another declaration for their -- whatever they were doing.

25 Q. And who drafted that declaration? Was it you?

26 A. Yes.

27 Q. And did they tell you what issues they wanted to

28 address?
121

1 A. They had, much like you, originally drafted a

2 declaration for me and I made substantial changes to it.

3 Q. Same kind of thing that you -- the attorneys, they

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

6 can't say this, I can't say that. It would be more

7 comfortable for me to say something else, right?

8 A. Yes.

9 Q. And, of course, you're signing something under

10 penalty of perjury. That's not something that you take

11 lightly, sir, is it?

12 A. Correct.

13 Q. So then you produced Exhibit No. 13. Is that

14 correct? The declaration for the San Diego District

15 Attorney's Office?

16 A. Yes.

17 Q. And you signed this declaration as well

18 February 16th, 2017?

19 MS. BANNON: Is it 12 or 13? I'm sorry. Did I miss

20 something?

21 MR. SPEREDELOZZI: Did I -- I might have identified

22 it incorrectly.

23 MS. BANNON: I'm sorry.

24 MR. SPEREDELOZZI: I've been known to do that. It's

25 Exhibit 13, second supplemental declaration -- oh, you know

26 what?

27 MS. BANNON: That's -- yeah.

28 MR. SPEREDELOZZI: That's the wrong exhibit. You


122

1 caught me.

2 MS. BANNON: So you're on Exhibit 12?

3 MR. SPEREDELOZZI: Yes, ma'am.

4 MS. BANNON: February 11, 2016?

5 MR. SPEREDELOZZI: Yes.

6 MS. BANNON: Okay.

7 MR. SPEREDELOZZI: Thank you.

8 (Exhibit No. 12 identified for the record.)

9 BY MR. SPEREDELOZZI:

10 Q. Exhibit 12. This is the declaration that you signed

11 for the prosecution in this matter, correct?

12 A. Yes, it is.

13 Q. This is a three-page exhibit. And it's

14 February 11th, 2016, right?

15 A. Yes.

16 Q. And that's your signature?

17 A. It is.

18 Q. And at the time you wrote this declaration, did you

19 get an opportunity to read my briefing in this matter?

20 A. I believe I reviewed it, yes.

21 Q. Okay. So I -- I believe I had filed two briefs at

22 that time. One was a -- an original writ petition and then a

23 supplemental points and authorities to the writ petition. Did

24 you read both of those?

25 A. I cannot recall.

26 Q. Okay. But you were presented with the briefing by --

27 was it Mark Amador?

28 A. He was involved. I can't remember what point he got


123

1 involved, but my main point of contact was Kristian Trocha.

2 Q. And they provided -- they provided the briefing to

3 you?

4 A. Yes.

5 Q. Or did you get it on your own?

6 A. No, they provided it to me.

7 Q. The code section that I raised in my briefing,

8 1473(e)(1), at the time you signed my declaration, you didn't

9 know -- you weren't familiar with that code, or were you?

10 A. I'm still not familiar with that code to tell you the

11 truth.

12 Q. Okay. But you read the legal standards prior to --

13 let me back up and rephrase.

14 When you signed my declaration, you had not read any

15 of the legal standards for a writ of habeas corpus?

16 A. No.

17 Q. Okay. So you were just going off of what was true,

18 what was not true when you wrote that declaration, right?

19 A. The one for you?

20 Q. Yes.

21 A. Yes.

22 Q. When you signed the People's declaration, you had

23 reviewed the legal standards of a writ of habeas corpus that

24 were relevant to this case?

25 A. No, I have not.

26 Q. But you just said you read the briefing in this

27 matter.

28 A. I -- I recall reading basically the briefing, and I


124

1 can't recall reading any points of law. But I remember

2 reading what you said my declaration meant and thinking that's

3 not what this meant.

4 Q. You read -- excuse me.

5 You read the briefing in this matter before or after

6 signing the declaration that you provided to the prosecution?

7 A. Before.

8 Q. Okay. Thank you, sir.

9 Did -- let me ask you this.

10 Did either Mr. Trocha -- let me start with

11 Mr. Trocha. When he contacted you originally, was he angry or

12 upset at you?

13 A. No.

14 Q. Did he say anything about -- or question why you'd

15 signed a declaration for me or write a report for me?

16 A. No. He knew I was signing a declaration for you.

17 Q. Mr. Amador, same question. Was he angry or upset?

18 A. No.

19 Q. Anybody at the police lab -- did you get in trouble

20 in any way for this?

21 A. No.

22 Q. Did -- did they indicate to you why they wanted you

23 to sign the declaration, either one of them?

24 A. I don't remember specifically if they said why. I

25 assumed it was because the issue would have to be litigated

26 and they would have to present their side.

27 Q. So it was to help them present their side?

28 A. I -- I would say it was probably to help me, you


125

1 know, present more accurate reflection of what the -- what my

2 initial declaration meant.

3 Q. The initial declaration that you signed, that's

4 accurate, right?

5 A. Yes.

6 Q. And I'm talking about the one you signed for me.

7 A. Yes.

8 Q. And that's Exhibit 11, right?

9 A. Yes.

10 Q. The guidelines that that report is based on, you said

11 in your declaration for the prosecution that they have been --

12 have been in effect since 2000 -- from 2011 to October 2015?

13 A. Yes.

14 Q. So there's been a new set of guidelines for

15 interpreting mixture samples?

16 A. Since 2015?

17 Q. Since October 2015.

18 A. Yes.

19 Q. Did you revert at all to the pre-April 1st, 2011

20 guidelines?

21 A. Did I revert? I'm not too sure I understand the

22 question, but --

23 Q. Like, for example, are you now allowed under the

24 guidelines to do a CPI statistic on loci that contain alleles

25 in the stochastic range?

26 A. We no longer use the CPI statistic.

27 Q. So the answer is no?

28 A. Correct. We don't use the CPI statistic. So if your


126

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

4 major contributors, does it not?

5 A. No.

6 Q. You don't use it whatsoever?

7 A. At all.

8 Q. So the old way of interpreting -- the old method

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?

12 A. Yes. They use a better technology for interpreting

13 and dealing with mixtures.

14 Q. And so those old guidelines are still not being used

15 by the San Diego Police crime lab?

16 A. Correct.

17 Q. The old guidelines that -- that suffice it to say

18 were in contrast, the old San Diego Police guidelines prior to

19 April 1st, 2011, that were in contrast with the SWGDAM

20 guidelines, those are not generally accepted in the scientific

21 community anymore, are they?

22 A. As I think I mentioned before, the communities sort

23 of had the discussions. We've kind of selected what we think

24 is a more relevant question. We've moved towards answering

25 that question alone. And so that's -- that's where we're at

26 now is answering that question.

27 Q. So is that a yes or a no to my question?

28 A. What was your question again then?


127

1 Q. The question is, the old guidelines, April 1st, 2011,

2 the guidelines that are in contrast to the SWGDAM

3 guidelines -- and I'm talking specifically about the San Diego

4 Police Department --

5 A. The ones prior to April --

6 Q. Prior to April 1st --

7 A. Okay.

8 Q. -- 2011 --

9 A. Yes.

10 Q. -- are those -- are those generally accepted in the

11 scientific community today?

12 A. I would say that the CPI is still a viable statistic.

13 SWGDAM just published a document in 2017, a new autosomal

14 interpretation guidelines document. CPI is still in there so

15 CPI is still a tool that is available to laboratories. There

16 are still laboratories that are using it, so --

17 Q. It's a simple yes or no, Mr. Montpetit.

18 A. I'm not sure that it is.

19 Q. The guidelines -- there are things in the guidelines

20 specifically, the use of loci that have alleles in the

21 stochastic range, that practice, is that generally accepted in

22 the scientific community today?

23 A. Within certain specific circumstances, yes. It's

24 still in the SWGDAM guidelines.

25 Q. The circumstances that they were used in this case,

26 are those -- is it generally accepted?

27 A. We are not answering the same question anymore.

28 Q. So, yes or no, are they generally accepted? We're


128

1 not answering the same question. You're talking about we --

2 you're talking about the scientific community, the forensic

3 DNA scientific community is not doing that anymore, right?

4 A. Well, there's still labs that are using CPI, and I

5 can't say what, you know, each specific laboratory in the

6 country -- there's 196 public laboratories. But most are

7 moving away from CPI-based interpretations and towards a new

8 interpretation guideline.

9 So they are still used in the -- CPI is still used in

10 the country in certain labs. I can't tell you how many. And

11 it's still considered a viable tool. If that constitutes

12 general acceptance that SWGDAM is still endorsing it, then

13 yes.

14 Q. I'm not talking about CPI. I'm talking about the

15 practice of using loci where there are alleles in the

16 stochastic range to calculate a CPI statistic. That practice

17 is no longer generally accepted in the DNA forensic scientific

18 community, yes or no?

19 A. Not unless you can assume a number of contributors.

20 Q. And in this case you couldn't do that?

21 A. Correct.

22 Q. So the answer is no, they're not generally accepted,

23 right?

24 A. I guess if you're going to specifically say, you

25 know, for these samples if I could not come to a determination

26 on the number of contributors, then no, CPI is no longer used

27 for that type of analysis.

28 THE COURT: Well, the notion of using, in the CPI


129

1 analysis, alleles where the measurement is below the

2 stochastic threshold is not used either; is that correct?

3 THE WITNESS: If you can assume the number of

4 contributors, then yes, you can use the alleles in the

5 stochastic threshold in a CPI calculation.

6 THE COURT: But if you cannot assume them, which was

7 the case here, you could not today consistent with reasonable

8 scientific norms use that approach?

9 THE WITNESS: Right. You would have to use a

10 different calculation which accommodated dropout.

11 THE COURT: Thank you.

12 MR. SPEREDELOZZI: Thank you, sir.

13 BY MR. SPEREDELOZZI:

14 Q. I might be done early with you today. I have one

15 section left. I'm not sure how long it would take.

16 In your declaration for the prosecution, you say

17 something interesting that I want to ask you about. And

18 that -- I believe that's Exhibit 12.

19 THE COURT: I think that's on the board.

20 MR. SPEREDELOZZI: Oops. You're right. It is.

21 Thank you.

22 BY MR. SPEREDELOZZI:

23 Q. Let me ask you about -- about this as well.

24 Number 12 here says, "Neither SWGDAM nor the change

25 in the San Diego Police Department crime laboratory's complex

26 DNA mixture interpretation guidelines render conclusions,

27 opinions, comparisons or statistical analyses performed under

28 the pre-2011 complex mixture interpretation guidelines


130

1 invalid. Furthermore, there is no lab policy preventing

2 testimony to the previous reports." Right?

3 A. Correct.

4 Q. You said that in your declaration specifically in

5 regard to your internal policy there's nothing that would tell

6 you you can't testify to that in your policy, right?

7 A. Correct.

8 Q. But you don't know the rules of evidence, right?

9 A. No, I do not. I'm not a lawyer.

10 Q. You -- exactly. You're not a lawyer, right?

11 A. Correct.

12 Q. So you don't know whether or not your testimony would

13 be admissible -- your testimony that you gave in April of

14 2011, also in October of 2010, you don't know whether a Court

15 would allow you to give that testimony, right?

16 A. If we were to go to trial new today, is that the

17 kind -- is that the question you're asking?

18 Q. The question is you don't know whether or not a Court

19 would find your testimony then -- if we're going to trial

20 today, the testimony that you gave then, you don't know

21 whether a Court would allow you to testify to that or exclude

22 that testimony based on an evidentiary principle of law?

23 A. Oh, no, I don't have any idea.

24 Q. Okay. And you don't -- you don't know what the

25 Kelly-Frye test is, do you?

26 A. I couldn't specifically quote it, but I do know it is

27 the test for admissibility.

28 Q. Of new scientific evidence?


131

1 A. Scientific evidence, yes.

2 Q. And do you know what the legal standard is?

3 A. No.

4 Q. Okay. Thank you, sir.

5 I'm going to give you three -- two hypotheticals that

6 are related to another thing you said in your report.

7 A. My report or declaration?

8 Q. Declaration. Excuse me, sir. Thank you.

9 Item number two. You wrote in your declaration that,

10 quote, "Item number two, I have never repudiated my opinion

11 that Dominguez is a possible minor contributor to the DNA

12 mixture in the leather gloves."

13 A. That's correct.

14 Q. Let me ask you this. And I'm going to read from my

15 paper because I phrased exactly how I want it.

16 Do you agree that it is not logically consistent to

17 say that person X is included as a possible minor contributor

18 to a given mixture sample and with regard to that mixture

19 sample no comparisons can be made regarding potential minor

20 contributors?

21 A. So that's a hypothetical?

22 Q. I'm asking you if you agree with the sentence that I

23 just stated. Maybe it is a hypothetical. Maybe it's not.

24 I'm happy to repeat it.

25 A. I would say it depends.

26 Q. It depends? You don't find that statement logically

27 inconsistent?

28 A. Well, knowing that it directly relates to the


132

1 opinions that I've rendered in my reports, they're asking two

2 separate questions, and so I don't view those as

3 contradictory. And -- but if the statement that you made just

4 on its own, I can see how someone would say that they are

5 inconsistent with each other.

6 Q. You kind of have to argue that that's not logically

7 inconsistent. You kind of have to dance around and make some

8 exceptions and kind of wiggle around it, right?

9 A. I would say if I looked at the evidence in one way, I

10 could make comparisons; and if I look at it in a different

11 way, I could not make any comparisons. And I don't see any

12 inconsistency in that because I'm answering two different

13 questions.

14 So, scientifically, the calculation to me, you know,

15 with regards to 16-3, 17-3, to me that does not invalidate,

16 you know, the previous conclusions that I made.

17 I'm basically just saying that with my new 2015

18 interpretation, I don't have a stat that I can apply to this

19 and so I can't make any inclusions.

20 Q. Do you agree that it is not logically consistent to

21 say that with respect to person X the approximate

22 probabilities that a person selected at random would be

23 included as a possible minor DNA contributor to a given

24 mixture sample is one in 450 among the Hispanic population,

25 and with regard to that same mixture sample, no statistical

26 calculations can be made regarding potential contributors?

27 A. I would say if you're using the same interpretation

28 guidelines in both instances that they would be logically


133

1 inconsistent. But if you are not using the same

2 interpretation guidelines and you're not asking the same

3 question, then I can see them existing at the same time.

4 Q. Forget about the interpretation guidelines. Forget

5 about science. Forget about all that. I'm asking a question

6 based on pure logic, just the -- the logic of the language,

7 semantics.

8 The question is if you give an opinion that a person

9 is -- is -- with respect to a person, the approximate

10 probabilities that the person selected at random would be

11 included as a possible minor DNA contributor to a given

12 mixture sample is one in 450 among the Hispanic population,

13 wouldn't the next opinion be logically inconsistent with that,

14 with regard to that same mixture sample, no statistical

15 calculations can be made regarding potential minor

16 contributors, as a matter of pure logic. Is that not

17 inconsistent, sir?

18 A. I can see how people would think that that would be

19 inconsistent without knowing the background, yes.

20 MR. SPEREDELOZZI: Thank you. No further questions

21 at this time.

22 THE COURT: All right. Ms. Israel.

23 MS. BANNON: Bannon.

24 THE COURT: Ms. Bannon. My apologies.

25 MS. BANNON: That's okay. It happens every once in a

26 while now.

27 Your Honor, if I may, I think I was given the option

28 last week to be able to waive the cross-examination at this


134

1 point and in preference to recalling Mr. Montpetit and putting

2 on a more -- our more comprehensive position, and that's what

3 I would like to do at this point and just reserve to recall

4 Mr. Montpetit probably sometime, I imagine, tomorrow after

5 Ms. Ryan.

6 THE COURT: Well, I then have some questions. But

7 that would be in your request to not examine him at this

8 juncture and reserve your cross?

9 MS. BANNON: And reserve, yes, to recall him, yes.

10 THE COURT: Mr. Speredelozzi?

11 MR. SPEREDELOZZI: I was of the understanding that

12 this was the time for cross on these issues.

13 What I believe Ms. Bannon is trying to do is recall

14 Mr. Montpetit on the issues with regard to supplement nine,

15 and that would be appropriate from petitioner's point of view,

16 but the issues are fresh right now as far as what I have just

17 direct examined Mr. Montpetit on, and so it would be

18 inappropriate to not cross-examine him on those issues right

19 now and instead to call him to cross-examine him on those

20 issues at a later date.

21 THE COURT: What would be your proffer? How would

22 you proceed, Ms. Bannon, in recalling him?

23 MS. BANNON: In -- what I would -- and I would tell

24 the Court and Mr. Speredelozzi that my preparation in how I

25 would proceed with Mr. Montpetit is based on our discussions

26 just last week and the options that were put before me and my

27 indications on how I intended to proceed which were acceptable

28 to everyone at the time.


135

1 My proffer is rather than to cross-examine

2 Mr. Montpetit on the issues that counsel brought out today,

3 which would be issues that I would include in an overall

4 direct examination that would be a start to finish

5 presentation of the People's position, which would include the

6 supplemental report number nine that includes the STRmix

7 results that, again, include the defendant -- I'm sorry -- the

8 petitioner in the -- as a minor contributor to the samples at

9 issue here, that I would present that testimony in one

10 cohesive manner start to finish covering all of this ground.

11 THE COURT: Well, that has to do with the STRmix

12 testimony and the retesting or the new protocols -- why can't

13 you go ahead and examine him now on what he's been talking

14 about thus far?

15 MS. BANNON: To begin with, I had planned on

16 presenting it as one cohesive piece and not to begin a

17 cross-examination and cross-examine him on some of the stuff

18 and then to recall him on STRmix.

19 My understanding was I was going to be given leave to

20 call him one time and to examine him one time on the STRmix.

21 THE COURT: On the STRmix, yes.

22 MS. BANNON: Well, but with all due respect to you

23 and as well as to counsel, that is not at all what I was led

24 to understand last week.

25 THE COURT: Well, then you misunderstood. You can

26 cross-examine him now on this material.

27 MS. BANNON: Okay.

28 THE COURT: And then I will ask my questions.


136

1 MS. BANNON: Okay.

3 CROSS-EXAMINATION

4 BY MS. BANNON:

5 Q. Mr. Montpetit, I want to start with your

6 qualifications. We -- or counsel brought out the fact that

7 aspects of mixture interpretation are -- have some

8 subjectivity to them, is that --

9 A. Yes.

10 Q. -- your correct recollection?

11 And when interpreting DNA results, whether they be

12 mixtures or single source DNA results, do you come to that

13 assessment with all of your education and experience? You

14 bring all that to bear?

15 A. Yes. When it comes to interpreting mixtures, we rely

16 on our interpretation guidelines which are -- are founded in

17 validation studies that are conducted on the testing kits that

18 we use, and they also include the experience and knowledge we

19 gain of the testing kit as we do those validation studies as

20 well as case work experience.

21 Q. Is there some subjectivity that is applied in the

22 interpretation of single source DNA samples?

23 A. Yes. I would say that just the determination of

24 whether something is single source or not is a matter of

25 interpretation.

26 Q. And, in fact, the body of work is called

27 interpretation; is that right?

28 A. Yes. I mean, the important part of the process of


137

1 DNA analysis is the interpretation of the DNA profiles.

2 Q. So you obtain data and information; you have to

3 figure out and then be able to communicate what that means?

4 A. Yes.

5 Q. And part of that is first in figuring out just what

6 you have, what can be used, what can't be used, things like

7 that?

8 A. Yes.

9 Q. And part of that has to be in how to present that

10 information either through a statistic or some other means,

11 right?

12 A. Well, once we have the DNA results, at that point we

13 do an interpretation of the results and then comparisons are

14 made, and if any inclusions are made to the evidentiary

15 material, then we must provide some estimate as to the

16 significance of that inclusion.

17 Q. All right. Now, if you can tell me -- if you can

18 start and tell me after receiving your master's degree in

19 1999, did you immediately become employed with the San Diego

20 Police Department?

21 A. I think I graduated in June and started work in

22 October at the San Diego Police Department.

23 Q. What was your role beginning in fall of 1999 in the

24 San Diego Police Department?

25 A. I was employed as a criminalist in the DNA unit.

26 Q. Did you receive training by the San Diego Police

27 Department in how to analyze DNA mixtures?

28 A. Yes. We had in-house training as well as external


138

1 training in many aspects of DNA analysis methods.

2 Q. As you progressed through your career, did you

3 participate in ongoing training?

4 A. Yes.

5 Q. How often do you participate in ongoing training?

6 And I would have you address your responses to analyzing and

7 interpreting mix samples unless I ask you otherwise, all

8 right?

9 A. All right.

10 Q. So what kind of ongoing training did you participate

11 in over the years in the San Diego Police Department before

12 becoming the acting technical manager in 2006?

13 A. It was required that as DNA analysts we go through at

14 least eight hours of continuing education in DNA methods every

15 year, and so each year I had a minimum of eight hours of

16 continuing education on DNA analysis methods. That would have

17 been either attending conferences or workshops directly

18 related to DNA testing.

19 And over the course of years, I've gone to many

20 conferences, workshops and seminars that had to do with DNA

21 interpretation and mixture interpretation specifically.

22 Q. What is a discussion group?

23 A. A discussion group. There's -- well, there's several

24 different forms for discussion groups. You can have them at

25 meetings, at workshops and there's also online discussion

26 groups.

27 Q. What's the difference between a training seminar and

28 a workshop?
139

1 A. Generally workshops are tailored to specific topics,

2 and training seminars might have a variety of different topics

3 that are involved.

4 Q. Have you attended any workshops on complex mixture

5 analysis?

6 A. Several, yes.

7 Q. Do you continue to participate in those workshops?

8 A. Yes.

9 Q. Had you ever participated in a workshop involving

10 complex DNA analysis -- I'm sorry -- complex mixture analysis

11 wherein the questions that have been -- some of the questions

12 and issues that have been brought up by defense counsel today

13 were discussed? And particularly I mean including looking at

14 markers with alleles in the stochastic range.

15 A. Yes, it was -- I attended several workshops of

16 complex DNA mixture interpretation over the years that had to

17 do with how labs deal with these complex samples and types in

18 the stochastic region and other aspects like that.

19 Q. When you attend these workshops, and then in your

20 capacity as a technical manager at the SDPD crime lab when you

21 go back to your crime lab, do you incorporate things that you

22 learned in these workshops into your guidelines?

23 A. Sometimes yes; sometimes no.

24 Q. When papers are discussed -- are published in your

25 field, and we saw some of those examples of papers put up on

26 the screen, are the papers discussed in these workshops?

27 A. Sometimes they are, but sometimes they're not.

28 Q. If we take -- if we start with the paper that was --


140

1 find the Exhibit No. -- Exhibit No. 30 was a paper in

2 September of 2010 that you were familiar with and that you had

3 read entitled -- by the Journal of Forensic Sciences

4 entitled -- I have to find the title here -- entitled,

5 "Inclusion, probabilities and dropout." When you read this

6 paper, you -- I think you told us that it was -- that you

7 believed that the paper was written in response to a blog

8 post?

9 A. Yes. An online forensic discussion group.

10 Q. Okay. And was there some -- I think you told us that

11 there was -- in your opinion that there was some deficiencies

12 in this paper, that it could have been done a little bit

13 better?

14 A. Yes, I said that. They basically wrote a response to

15 something and they essentially painted everything with a broad

16 brush without really delving into the specifics of the

17 practices of the different labs that perform this process

18 which they apparently disagreed with.

19 Q. Okay. Now, is it -- it's true that in some

20 laboratories where they were using this method of excluding

21 DNA markers in their statistical calculations that it would

22 have been, in your opinion, inappropriate to do?

23 A. Yes.

24 Q. And other labs may exclude information from genetic

25 markers where it was not inappropriate to do?

26 A. I would agree with that as well.

27 Q. The propriety of doing it or not doing it would be

28 based on what?
141

1 A. I'm not sure I understand the question. What do you

2 mean by "propriety"?

3 Q. Well, if it's -- if it's inappropriate for some

4 laboratories to do but okay for other laboratories to do, what

5 would be the distinguishing feature of when it would be okay

6 versus when it would be not okay?

7 A. I would say what the underlying reasoning was for

8 excluding the marker. If you're excluding the marker for a

9 scientifically valid reason such as dropout of a DNA type at a

10 marker that does not tend to amplify as well or get

11 represented as well in the results, that would be a

12 supportable decision to exclude that marker in my opinion.

13 And if you were just doing it without having that

14 sort of scientific justification and only doing it because

15 there's an inconsistency with a reference sample, that would

16 be an example of something that I would not think is a correct

17 way of doing it.

18 Q. Is there anything in that inclusion, probabilities

19 and dropout 2010 study that acknowledges that some

20 laboratories have scientifically valid reasons for leaving in

21 or leaving out a marker?

22 A. I don't recall reading that they ever made that sort

23 of nuanced statement.

24 Q. When we're talking about science and scientific

25 methodology, is it important to be examining procedures and

26 comparing sort of apples to apples.

27 A. I would think that if you're going to comment on

28 something, you should at least have the specifics of what


142

1 you're commenting on.

2 Q. When you testified in 2011, were you cross-examined

3 at great length by Mr. Speredelozzi as to why you chose to

4 include information from certain genetic markers but -- or to

5 exclude information from certain genetic markers?

6 A. Yes, I was.

7 Q. And what -- the scientific bases for doing that, was

8 that within San Diego Police Department crime lab guidelines?

9 A. Yes.

10 Q. Was there a scientifically sound basis to do that?

11 A. We believe that we had the knowledge of the DNA

12 testing kit that we were using that substantiated the use of

13 our method.

14 Q. Do all crime labs use the same DNA testing kits?

15 A. No. There's a few different kits out there available

16 for laboratories to use.

17 Q. Would what testing kit one lab uses over another lab

18 influence some of the scientific judgment that you would have

19 to employ in order to decide whether or not to exclude

20 information or include information?

21 A. It definitely could depending on the testing kit that

22 you're using because different DNA testing kits have the

23 markers or the genetic markers that are tested organized in

24 different -- different manners such that one marker that is a

25 small size marker which copies readily in one kit is a larger

26 marker that does not copy as readily in another kit. Some

27 markers aren't -- don't overlap between kits and so there

28 are -- there are differences between kits that could


143

1 definitely influence those decisions.

2 Q. Would a fairer examination and analysis be to look at

3 a lab's particular protocols and testing kits to determine

4 whether or not in those instances when those mixed samples

5 were run and data was excluded from certain markers to look to

6 the precise lab, its protocols and its testing kits used?

7 A. Yes, I think that would have been a much better

8 publication for sure.

9 Q. In one of your workshops that you attended, did you

10 have an opportunity to discuss with Mr. Budowle -- I'm sorry,

11 is that how you pronounce his name?

12 A. Yes.

13 Q. -- to discuss with Mr. Budowle your scientific

14 approach and exercise of your scientific judgment in

15 determining to exclude DNA markers from your CPI calculations?

16 A. Yes, I did.

17 Q. And when you discussed this with Mr. Budowle, was

18 this before or after your testimony in 2011, do you remember?

19 A. It would have been before probably 2008 or 2009, I

20 would think.

21 Q. Now, was this about the time when Mr. Budowle's

22 research work that you were cross-examined about at trial was

23 coming into the arena?

24 A. It probably would have been right around that time

25 frame. I think his publication that I was asked about at

26 trial was in 2009.

27 Q. When you had this discussion with Mr. Budowle and you

28 explained to him how it is that you determined to exclude DNA


144

1 markers in doing your particular CPI calculations and

2 answering the question you were answering at the time of

3 trial, was there anything in his response to your explanation

4 for doing that that gave you any reason to believe it were

5 inappropriate?

6 A. No.

7 Q. The article at trial by Mr. Budowle that you were

8 cross-examined about wherein -- upon which, I should say, that

9 the SWGDAM guidelines and then ultimately the San Diego Police

10 Department guidelines were promulgated, that is, in not using

11 any DNA markers where alleles fall below the stochastic

12 threshold, that article by Mr. Budowle and that position

13 presupposed a different question to be answered with the CPI

14 statistic than you were answering in your reports that were

15 testified about in 2011; isn't that right?

16 A. Yes.

17 Q. And as we went through -- as Mr. Speredelozzi went

18 through with you towards the very end of your testimony, those

19 two questions are framed as follows, so that as I go through I

20 may refer to them as question one versus question two.

21 Question one, which was being answered by you in your

22 testimony at the first trial and the second trial and in your

23 analysis of all report -- all reports leading up to

24 supplemental eight, the question that was being answered,

25 which I'll call question one, is: What are the chances that a

26 person in the population would be included in the evidence

27 sample to the same degree as the person identified or to the

28 same degree as Mr. Dominguez? That was question one. Is that


145

1 right?

2 A. Correct, correct.

3 Q. And in answering question one, were you able to use

4 the CPI statistic to answer that question?

5 A. Yes.

6 Q. Did the San Diego Police Department at the time it

7 was answering that question using the CPI statistic have

8 procedures in place to guard against the risk of overinflating

9 that inclusion statistic?

10 A. Yes, I believe we did.

11 Q. The concern in the community that using a CPI

12 statistic would run the risk of over including a suspect in

13 the statistic was accounted for by your particular procedures

14 in place; is that right?

15 A. Yes. We had processes in place that we felt

16 prevented us from overestimating the level of inclusion of

17 anybody that we associated with a particular piece of

18 evidence.

19 Q. And those processes, those protocols were based on

20 experiments and validation procedures with your instruments in

21 your laboratory?

22 A. They were based off the knowledge regarding the

23 results that we typically get with that testing kit, which

24 markers generally amplify better and which -- you know,

25 basically when we have results that are more represented in

26 the electropherogram, we have higher intensity DNA types.

27 That's an indication that we're detecting more of the sample

28 than at other markers where the intensity of all the peaks


146

1 combined might not be as much.

2 And so what we had was a procedure in place to look

3 at instances where inconsistencies were observed between

4 reference samples and evidence samples and then to exclude not

5 only the loci that were inconsistent but other loci that met

6 the same intensity criteria as where the dropout is occurring.

7 So if we had more intense results at another marker,

8 we could presume that we were detecting more DNA at that

9 marker; and, therefore, we could include that. And that was

10 our justification for including those markers in the

11 calculation.

12 If we had a marker that also did -- well, if we had a

13 marker that did not have inconsistencies with a person of

14 interest but that was at a lower intensity of one marker where

15 dropout occurred, we would also not include that in a

16 calculation. And so instead of using those loci which people

17 were consistent with in the calculation, we would not do that

18 and thereby essentially make the stat more common, more people

19 would be able to be included into that statistic, into that

20 mixture because of that process.

21 In addition to that, we also had policies in place

22 where if a genotype, which is a combination of DNA types, was

23 present entirely within the stochastic region, we would not

24 include that genotype in the calculation either.

25 And so those two things that we had within our

26 procedures were essentially meant to try and ensure that we

27 were not overestimating the significance of any inclusion.

28 Q. Now, when you answered a question, you indicated that


147

1 because, in general, not the way San Diego was -- was

2 answering question one and applying the statistic very

3 conservatively, but because the potential still existed for

4 any lab analyst here or anywhere to misapply this CPI

5 statistic when answering question one, the forensic DNA

6 community, after much discussion, determined that from

7 henceforth we will answer question two.

8 A. Yes. After -- there's discussions that happened and

9 papers that were published, and ultimately the community, the

10 DNA testing community, came to the decision that question two

11 was probably the more relevant question that the Court was

12 trying to get at and that was a better question to be asking.

13 Q. Okay. And so just to keep things in this box before

14 I step out a little bit, question two is who in the population

15 can be -- can be a minor contributor to this mixture as a

16 whole; that is, the distinguishing variable is who can be a

17 minor contributor to the mixture as a whole versus who can be

18 included in the evidence sample to the same degree as the

19 defendant, right?

20 A. Correct.

21 Q. Okay. So question two in the community was

22 determined to be the -- after discussion to be potentially

23 more relevant in a forensic courtroom setting; is that right?

24 A. Yes.

25 Q. You'll agree with me that science can answer many

26 questions, right?

27 A. Yes.

28 Q. It can answer very general and broad questions,


148

1 right?

2 A. Yes.

3 Q. And it can then from that very general and broad

4 question be asked more and more finite questions in that same

5 topic; is that right?

6 A. Yes.

7 Q. And different methods or different approaches may

8 need to be taken to answer those varying questions all within

9 the same subject; is that right?

10 A. Yes.

11 Q. And because a more refined question, a more finite

12 question can be asked and answered, does that necessarily mean

13 that a general -- a more broad and general question is not a

14 good question to ask, is a scientifically invalid question to

15 ask?

16 A. No, I -- I don't think that the -- because you can

17 answer multiple questions with a given set of data, I don't

18 think that that invalidates, you know, necessarily another

19 question.

20 Q. In this context, is there anything scientifically

21 invalid about asking the question what chance is there that a

22 person in the population would be included in an evidence

23 sample to the same degree as an identified person? Is there

24 anything scientifically invalid about that question?

25 A. I don't believe there is, and I think that the stat

26 that we provided gives a good estimate for how significant

27 that particular association is.

28 Q. All right. Now, sticking with question one.


149

1 Assuming, for purposes of the next question, that the new more

2 relevant question that the scientific community wants to ask

3 is question two, if you were called to testify in trial and I

4 asked you to examine the evidence in this case -- that is, the

5 DNA data -- if I asked you to examine the evidence in this

6 case and answer question one for me, is there anything in your

7 profession as a scientist that would tell you that you cannot

8 answer question one for me?

9 A. No, I -- as long as I'm specific in the question that

10 I'm answering and trying to explain that in the best way I

11 can, no, there's nothing that prevents me from testifying to

12 it.

13 Q. If I asked you question two -- if I asked you to

14 answer question two, is there anything in your scientific

15 judgment that would tell you -- that would cause you to say,

16 Madam Prosecutor, I've answered question one so I really ought

17 not be answering question two at all?

18 A. No.

19 Q. If we did it in reverse, if we came to trial and I

20 asked you question two and you gave me your answer to question

21 two and I followed it up with saying let me -- let me change

22 it for you and ask it another way and I asked you question

23 one, would you be compelled by your scientific profession to

24 tell me, Madam Prosecutor, I can't answer question one for you

25 because in the scientific community question two really is the

26 more relevant one, so I don't want to answer and I cannot

27 answer question one for you?

28 A. No, there is nothing preventing me from answering


150

1 question one.

2 Q. If you came to court and you were asked to answer

3 both questions and to provide the scientific backup for each

4 of those questions, because it certainly would sound in a

5 vacuum like you were talking out of both sides of your

6 mouth -- do you agree with me?

7 A. Yes.

8 Q. In a vacuum, it certainly sounds that way. You can't

9 have heads and tails on the same side of the coin, correct?

10 A. Correct.

11 Q. I would have to say, well, how do you get that?

12 Would you be able to give me a scientific basis for the answer

13 to question one versus the answer to question two?

14 A. I would be able to explain how we got to the answer

15 to question one and why I could not give you a calculation for

16 question two.

17 Q. And when you're answering question one, the CPI

18 statistic used to answer question one, that is, that

19 determining to the same degree as in an identified individual,

20 there was -- there is nothing that you can point to in the

21 scientific literature that says the manner in which you

22 analyze the data and you analyzed question one is

23 inappropriate; isn't that right?

24 A. There's -- there's no publications that I know that

25 address those specific questions. It would definitely -- if I

26 was trying to answer question two with the equation or the

27 calculation from question one, that would be inappropriate.

28 But I believe that as long as I'm specific about the


151

1 question that I'm answering and the manner in which I get --

2 arrive at that answer that there's nothing that prevents me

3 from answering that question.

4 Q. All right. Now, if other laboratories -- let me back

5 up.

6 There are accrediting agencies related to forensic

7 laboratories; is that right?

8 A. Yes.

9 Q. Is there a statewide accrediting agency?

10 A. No. The accreditation bodies for forensic testing

11 laboratories are national and international bodies.

12 Q. All right. Is there -- are there any -- other than

13 the national bodies, are there any kind of local auditors or

14 local accrediting or anybody that oversees you locally?

15 A. No.

16 Q. All right. Do the accrediting agencies have

17 guidelines and rules that labs that they oversee must follow?

18 A. Yes. So accrediting agencies will have standards

19 that labs that are accredited by them must meet.

20 Q. Are those separate from SWGDAM?

21 A. Yes. The SWGDAM document we were talking about

22 previously is autosomal interpretation guidelines document.

23 SWGDAM, as I mentioned earlier, is also in charge of the

24 quality assurance standards for DNA testing laboratories, and

25 they publish that document as well. And that is the standards

26 that labs have to adhere to in order to participate in the DNA

27 database.

28 Q. And that's CODIS?


152

1 A. Correct.

2 Q. Okay. So I wanted to try and keep these separate for

3 a minute, all right? So I want to stay with the accrediting

4 agency.

5 They have a set of rules and guidelines that the labs

6 they accredit must follow; is that right?

7 A. Yes.

8 Q. When you testified in 2011 and you testified to the

9 results, the one in 65 and the one in 450 from 17-3 and 16-3,

10 were those experiments and conclusions performed and reported

11 consistent with the -- the accrediting agency's guidelines?

12 A. Well, the accredited -- well, we are an accredited

13 laboratory, the San Diego Police Department crime laboratory.

14 We are accredited by the American Society of Crime Lab

15 Directors Laboratory Accreditation Board and we've been

16 accredited by them since 1997 and we have maintained our

17 accreditation with them. We're still currently accredited by

18 them. So we've met all of their standards for operating since

19 1997.

20 Q. Is there anything with respect to the accrediting

21 board -- I'm just going use that as a shorthand as opposed to

22 saying the whole title -- that directs that the lab must

23 accept all SWGDAM guidelines?

24 A. No.

25 Q. Do -- does the San Diego Police Department have to

26 submit its protocols to the accrediting board for either

27 monitoring or for them to approve of or for them to audit from

28 time to time or anything like that?


153

1 A. Yes. So to be accredited, we have to go through

2 essentially audits against the standards from the accrediting

3 agency, and we basically have to show compliance with those

4 guidelines -- or with those standards every year. And every

5 four years, we have to submit to an external audit where

6 people come into our laboratory to audit the lab as a whole.

7 In addition, the DNA laboratory is audited to the

8 standards of the -- the SWGDAM's quality assurance standards.

9 We are externally audited every two years and also have to do

10 our own audits against those standards every year.

11 Q. Has the San Diego Police Department prior to changing

12 its guidelines regarding the question that will be asked and

13 how it will be answered regarding question two, the new

14 question, prior to that, had the San Diego Police Department

15 crime lab ever been cited or sanctioned or disapproved of by

16 the accrediting agency in regard to the statistical method it

17 was using and the fact that it was asking and answering

18 question number one?

19 A. No.

20 Q. When the guidelines changed and it was determined to

21 begin asking question number two and acknowledging an

22 inability to apply a prior statistical model CPI to answer

23 that question any longer, was there anything in those newly

24 adopted guidelines that addressed how to handle cases that

25 preexisted those guidelines where question one was being asked

26 using the CPI statistical model?

27 A. I'm sorry. I think I lost you somewhere in there.

28 Are you asking me is there anything in the accreditation


154

1 guidelines about how to do --

2 Q. No, no. When San Diego Police Department modified

3 its guidelines in spring of 2011 --

4 A. Okay.

5 Q. -- to be consistent with what was being recommended

6 by SWGDAM, and I think if we -- to put a fine point on it,

7 when we go back to this SWGDAM guideline four -- SWGDAM

8 guideline 4.6.3, it's in Exhibit No. 15 of the notebook, it

9 specifically incorporates that question two, does it not?

10 It states, "When using CPI to calculate the

11 probability that a randomly selected person would be excluded

12 or included as a contributor to the mixture."

13 And it makes no distinguishing reference of that to

14 the same degree. It's referring to the mixture as a whole?

15 A. Yes.

16 Q. So the SWGDAM guideline is in 4.6.3 incorporating

17 question two?

18 A. Yes.

19 Q. And it's telling you when you're answering question

20 two, you can't use CPI? That's what it's telling you, right?

21 A. Yes.

22 Q. Is there anything in the SWGDAM guidelines that

23 tells -- that suggests to a lab or directs a lab what to do

24 with prior analysis that had been done which answered question

25 one using a CPI calculation?

26 A. No, they -- the laboratory -- I think the standard

27 statement on the front page is labs are encouraged to review

28 their protocols.
155

1 Q. All right. Now, when San Diego decided to begin to

2 answer question two rather than question one and thereby

3 abandon CPI as a statistical model, did the San Diego -- did

4 you as the director -- did the San Diego crime lab review its

5 protocols and make a determination about how to handle results

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?

9 A. Yeah. I think there's a couple points in that

10 question. In 2011 we did not abandon CPI. I think you

11 suggested that in 2011 we abandoned CPI, but we did not. We

12 still used CPI all the way up until 2015.

13 Q. I'm sorry. I meant to suggest -- I meant in the

14 question that you would no longer be using CPI to answer

15 question two.

16 A. Well, we cannot use CPI to address question two.

17 Q. Okay.

18 A. It's not that we chose not to. The CPI calculation

19 is a calculation that is ill-equipped to handle question two.

20 Q. Okay. Thank you.

21 A. And when we changed our guidelines in April of 2011,

22 we were evaluating, you know, what these changes meant and

23 what essentially we were changing from and going to. And we

24 made the determination that we didn't have to go back and redo

25 everything because we could testify, we had a -- we felt we

26 had a solid basis for the interpretations that we'd given

27 prior to April of 2011 for complex mixtures and, especially,

28 you know, minor contributors, that we didn't -- we weren't


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1 required to go back and change anything.

2 However, when we did contact the District Attorney's

3 Office in the memo from May of 2011, we indicated that if you

4 have a case that you would like a recalculation done, we will

5 do that upon request.

6 Q. Okay. And when the recalculation was being -- the

7 recalculation being offered -- when that recalculation would

8 be done, recalculation would be done answering question two,

9 not reexamining question one; is that correct?

10 A. Correct.

11 Q. And at trial you were cross-examined about the SWGDAM

12 guidelines; is that right?

13 A. I believe so.

14 Q. And --

15 A. I can't remember specifically. I know I was

16 questioned about the -- Dr. Budowle's paper from 2009. I

17 can't remember specifically if the SWGDAM guidelines came up.

18 They may have.

19 Q. And you were cross-examined about some great length

20 about this concept dropout?

21 A. Yes.

22 Q. And do you recall as you sit here today if you were

23 asked when you were testifying to essentially assume question

24 two and give your analysis assuming question two?

25 A. I -- I do have a recollection of being asked how that

26 would change if I was to interpret it differently.

27 Q. And when you say interpret it differently, you mean

28 to interpret it as Mr. Budowle was suggesting it be


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1 interpreted?

2 A. Yes.

3 Q. And the manner in which Mr. Budowle was suggesting it

4 be interpreted was how SWGDAM ultimately was recommending the

5 data be interpreted?

6 A. Yes.

7 Q. And the way SWGDAM was recommending the data be

8 interpreted was ultimately how the San Diego crime lab

9 guidelines shifted in 2011; is that right?

10 A. Yes.

11 Q. Now, in your declaration prepared for the petitioner

12 in October of 2015, I believe it's Exhibit No. 11, and at item

13 number 23 where it avows what you would testify to if asked to

14 testify about the report dated May 8th, 2018 --

15 A. Yes.

16 Q. -- you indicated that there was -- that you had made

17 some substantial changes to the initial draft declaration that

18 was presented to you.

19 Do you recall the nature of the changes that you had

20 made or that you had rejected?

21 A. I guess I'm not following the question. I'm sorry.

22 Q. Well, I think you told us that this declaration,

23 Exhibit No. 11, was not the original that was prepared for you

24 by Mr. Speredelozzi, that you had made some substantial

25 changes?

26 A. Yes, okay.

27 Q. Do you remember the -- recall the nature of the

28 changes that you had made?


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1 A. Specifically, no, I don't. I remember there was

2 definitely language in there that I did not agree with and so

3 working with Mr. Speredelozzi suggested alternate wording that

4 I found more palatable, and we ultimately agreed that this was

5 the declaration that I would sign.

6 Q. As it relates to question -- or item number 23

7 regarding the May 8th of 2015, report, which was answering

8 question number two now under the new guidelines --

9 A. Yes.

10 Q. -- was there any discussion about whether or not it

11 would be a more thorough declaration to identify here that the

12 May 8th, 2015, report was answering a different question than

13 all the prior reports regarding the mixture analysis?

14 A. No, I don't think that ever came up.

15 Q. When you testified at trial, had you had a chance to

16 at least review that testimony? I mean that -- did I -- I

17 provided you with that transcript, right?

18 A. Yes.

19 Q. From the 2011 trial I gave, I don't know, last

20 Friday, something like that?

21 A. Yeah, you gave it to me, yeah, about three days ago.

22 Q. And have you had an opportunity to at least do a

23 cursory review of the prior testimony?

24 A. Yes, I reviewed that over the weekend.

25 Q. Isn't it true that throughout your direct and

26 cross-examination you continually explained the question that

27 you were answering with your statistic, that is, question

28 number one, that you specifically stated it in that manner


159

1 using the language regarding to -- relating to a random person

2 in the population who would appear in the sample to the same

3 degree as Mr. Dominguez?

4 A. Yes.

5 Q. You said that over and over?

6 A. It appeared multiple times in the transcript of my

7 testimony, yes.

8 THE COURT: Let's pause at this moment to take a

9 recess for ten minutes. We'll come back at ten minutes before

10 the hour.

11 (Recess taken.)

12 THE COURT: Again, good afternoon, ladies and

13 gentlemen. The record will reflect all parties and counsel

14 previously announced are present.

15 Mr. Montpetit has resumed the witness stand.

16 Thank you, sir.

17 Ms. Bannon, you may continue your examination.

18 MS. BANNON: Thank you.

19 BY MS. BANNON:

20 Q. So we were talking about having prepared in

21 conjunction with or with consultation with defense counsel the

22 declaration from October of 2015?

23 A. Yes.

24 Q. And when defense counsel had asked you, then he had

25 moved into preparing the declaration for the prosecution to

26 include in their response papers that you had reviewed the

27 legal filings that Mr. Speredelozzi had drafted?

28 A. Yes.
160

1 Q. And when you reviewed those legal filings, I think

2 that I understood your testimony to be that you really -- you

3 didn't interpret any points of law, but what you saw in his

4 arguments were -- and I wrote this down -- were, quote, not

5 what you meant in your declaration. Do you remember?

6 A. Yes.

7 Q. Can you explain that?

8 A. Again, as you'd pointed out, I'm not a lawyer. I'm

9 not interpreting any sort of points of law. But when I read

10 the -- the filing, I thought that there was things in there

11 that sort of mischaracterized what my declaration was being

12 used for, or what he was using my declaration for was not

13 quite what I had meant when I wrote it.

14 Q. And does that relate to whether or not you were

15 repudiating your trial testimony?

16 A. Yes. As I understand the meanings of repudiation,

17 not in a legal context but in more of just a plain English

18 context.

19 Q. And how about in a scientific context, does -- in the

20 scientific context, as a DNA expert of almost 20 years, in the

21 scientific context, does the answer to question two that you

22 gave in supplemental report number eight whereupon no

23 calculations could be made regarding the minor contributor,

24 does that personally, you as the expert, does that repudiate

25 your trial opinion from 2011 that the defendant -- or I'm

26 sorry, the petitioner was included -- sorry -- was possibly

27 included as a minor contributor to the sample?

28 A. He was included as a possible minor contributor. And


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1 no, I do not believe that the supplemental eight report in any

2 way invalidates the conclusions that I rendered in the

3 supplemental three or two report.

4 Q. And is that, again, because you're answering two

5 different questions?

6 A. Yes. Exactly. My opinion has really never changed

7 that Mr. Dominguez is included as a possible minor

8 contributor. What basically changed was my ability to provide

9 a stat to that.

10 Answering the first question, I could provide a stat

11 which I believe gives a reasonable estimate as to the

12 significance of that match. And in answering question two, I

13 can no longer make that calculation, and so I don't think that

14 the issuance of one in the supplemental eight invalidates the

15 original conclusion and interpretation that I provided.

16 Q. And because you couldn't provide a stat, because the

17 new guidelines answering the new question CPI can't calculate

18 that statistic for you, the -- the opinion testimony in

19 analyzing the physical evidence is that Mr. Dominguez is a

20 possible minor contributor, but because the lab's protocol

21 directs that you as a scientist aren't allowed to say your

22 opinion unless you can give the fact finders some statistical

23 parameters to know what to do with that opinion, you don't get

24 the say it. Is that right?

25 A. Correct.

26 Q. That doesn't mean that that's not your opinion?

27 A. Correct.

28 Q. And as a scientist, you don't get to pick and choose


162

1 which protocols you follow?

2 A. I'm following the protocols that are in place in the

3 laboratory at the moment in time I'm doing the analysis.

4 Q. All right. And that's what I mean.

5 So you may be, as you sit here today and as you did

6 in 2011, be of the scientific mind based on the evidence that

7 exists, the DNA, that the defendant is a possible minor

8 contributor to the mixture, but you don't get to pick and

9 choose to ignore the fact that your lab requires you to assign

10 a statistic, and because in 2011 a statistic was not available

11 for that type of DNA mixture, mums the word, you don't get to

12 say your opinion, right?

13 A. For question -- answering question two, since I don't

14 have a stat that I can calculate to support inclusions, I

15 can't make any inclusions.

16 Q. Now, you were asked -- I'm just going to headline for

17 a moment -- I'm not going to go there this afternoon, but I'm

18 just going to headline for a moment -- you were asked a

19 question on direct examination that after 2002 -- I'm sorry,

20 pardon me, excuse me -- after April 1st of 2011, you can't

21 make any comparisons based on the new guidelines. That was

22 the question and answer. And I think you said yes, right?

23 A. Yes.

24 Q. But that's not entirely true. Because we are here in

25 2017 now. We are here in 2017. But at least as of 2016, we

26 know that you could make a comparison because now you can

27 assign a statistic, right?

28 A. I think you're referring to as of October 2015 when


163

1 we implemented a new testing kit and new statistical software,

2 yes, I can make a conclusion to low level contributors in

3 complex mixtures, yeah.

4 Q. Okay. So the question really should have been

5 phrased: Between April 1st of 2011 and the date you just gave

6 us, October --

7 A. 2015.

8 Q. -- of 2015, in that couple of year period of time,

9 you could not make comparisons on these complex DNA mixtures

10 because you didn't have a statistical model that could render

11 a statistic to give your opinion, which always existed, some

12 context, right?

13 A. Correct.

14 Q. But there is a statistical model now?

15 A. Yes.

16 Q. And, in fact, the statistical model, it didn't just

17 sort of get discovered in 2015. It's always existed as a

18 statistical model, likelihood ratio, right?

19 A. Correct.

20 Q. It's existed for decades upon decades, right?

21 A. The likelihood ratio has been used in statistics

22 since probably the 1850s.

23 Q. Okay. And likelihood ratio was incorporated into a

24 software package that your lab adopted in 2015 that allowed

25 you to now to make these comparisons?

26 A. Correct.

27 Q. Okay. So we're going to talk about that a little bit

28 later. I just wanted to kind of headline that the more


164

1 thorough question and, therefore, slightly different answer is

2 that between 2011 and 2015 you couldn't make these comparisons

3 of complex mixtures anymore because you didn't have the right

4 statistical model or a beefed up enough calculator to do the

5 statistical analysis, but after 2015 and now you do?

6 A. Yes.

7 Q. Okay. Going back to one of these -- two of these

8 papers that were brought to your attention, Exhibit No. 31,

9 this article August -- accepted on August 4th, 2011 in the

10 Journal of Science and Justice -- remind me, did you read this

11 one?

12 A. That's not one of the ones that I have access to.

13 Q. Okay. But is this one that you were generally aware

14 of, however?

15 A. I -- I am familiar with Dr. Dror and his work on

16 cognitive bias.

17 Q. Okay. Now, you had brought up a point that in this

18 study the researchers did not unify the interpretation

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

21 original examiners; is that right?

22 A. That's my understanding, yes.

23 Q. And why is that important?

24 A. I think if -- you know, for instance, with people

25 inside my laboratory, if we're following the same set of

26 interpretation guidelines and, you know, whether it's the

27 guidelines we had, you know, prior to April 2011, the

28 guidelines that we had in place from April 2011 to


165

1 October 2015, or the guidelines that we have in place now,

2 we've written those with the attempt to get everybody on to

3 the same page with the interpretations and the stats that they

4 report and minimize that variation amongst analysts.

5 And if you have a cohesive set of guidelines that you

6 give to people to follow, if they're good guidelines and they

7 give enough guidance, everybody should be able to come to the

8 same conclusion and the same stat for that piece of evidence

9 because you're following the same standard operating protocol.

10 Q. And that may have perhaps been a flaw in this

11 particular study?

12 A. I think it definitely would have tightened things up.

13 And the purpose of this -- this research that Dr. Dror does is

14 to see whether or not information that he considers irrelevant

15 influences interpretations of DNA evidence. And that is his

16 sort of the main gist of his research is to get people who are

17 doing forensic analysis, regardless of whether it's in DNA or

18 shoe prints or otherwise, to minimize the amount of relevant

19 information that they get and they give their analysts so that

20 they can minimize this cognitive -- excuse me -- this

21 cognitive bias.

22 Q. And in this particular case that gave rise to this

23 study, so I think they referred to using the genetic material

24 from an actual crime case?

25 A. Yes. I believe it was a sexual assault case from

26 Georgia.

27 Q. Okay. And part of the concern that was of interest

28 to a researcher like Mr. Dror in terms of cognitive bias is


166

1 because in that particular Georgia case, the analyst was given

2 this background information that was very case -- criminal

3 case specific, evidentiary case specific, they were made aware

4 of multiple defendants, plea agreements, the acceptance of

5 plea agreements being based upon certain DNA findings

6 corroborating what an accomplice was saying and things like

7 that; is that right?

8 A. Yes. That is the type of information that Dr. Dror

9 generally says is sort of irrelevant to the interpretation of

10 your evidence.

11 Q. And that didn't happen in this case, did it? And I'm

12 sorry. In Mr. Dominguez's investigation?

13 A. I may have had some information about the case, but

14 I -- again, we try and sort of segregate that information and

15 have our standard operating procedures sort of minimize the

16 reliance an analyst might put on any of that information, and

17 so that's why we have the guidelines in place, a procedure to

18 follow, a mechanism to calculate the stat with, and then we

19 also have technical and administrative review which are

20 reviews of our data to make sure that the data -- or the

21 conclusions that we reach are supported by the data and try to

22 be free of any of that external bias. And so that's --

23 Q. So the people that do -- the analysts within the lab

24 that do the technical review that just look at the data that

25 were developed and the conclusions that are drawn by you as

26 the testing analyst, those technical reviewers are not privy

27 to case information of any sort?

28 A. Well, no, that's not true. Because they are checking


167

1 things as well as, you know, the technical portions of the

2 analysis. They're also checking to make sure that portions of

3 a report are accurate so that victims' names are correct, case

4 numbers are correct. And so they have access to the request

5 information.

6 And so generally the information that I have access

7 to as the analyst is information that they have in the case

8 record.

9 What they might not have is any additional

10 communications that have -- that have occurred between the

11 analyst and the investigator.

12 Q. Okay. At your -- in the San Diego Police Department

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

15 caper? So do what you got to do. But we like this guy, to

16 suggest your results?

17 A. You know, they are the investigators and they submit

18 reference samples for people that they believe might be

19 associated with the matter that they're investigating.

20 And as the analysts in the laboratory, our job isn't

21 really to concern ourselves as to why a person is a potential

22 suspect, just to look at the evidence and make the comparisons

23 and determine whether they're included or excluded. And then

24 if they're included, to provide some sort of estimate as to

25 the significance of that association.

26 Q. Now, the point -- one of the points then that was

27 taken away from Mr. Dror's study, Exhibit 31, one of the

28 take-aways, generally speaking, was then that in interpreting


168

1 DNA data inconsistencies in the interpretation that was

2 revealed in the study demonstrates that there's a certain

3 level of subjectivity in forensic DNA interpretation. That's

4 one take-away, right?

5 A. Yes.

6 Q. Now, despite the fact that the study was published in

7 August of 2011, which is several months after the trial in

8 Mr. Dominguez's case, this is not a new concept in forensic

9 DNA analysis, that there's an element of subjectivity in the

10 interpretation of mixed samples?

11 A. No. And I think the other portion of this that is

12 not new is that it's important for analysts to sort of limit

13 that additional investigative information from influencing

14 their interpretation.

15 So if I'm looking at a case of a -- say a felon in

16 possession of a gun, I should not consider that the gun was

17 taken from, you know, the waistband of his -- his pants when

18 I'm trying to determine whether he is a potential contributor

19 to the mixture. I have to look at the data and then let the

20 data tell me whether he's a contributor of that, not the fact

21 that the gun was recovered from his waistband.

22 Q. All right. So the fact that this particular study

23 was published after the trial is not some new development or

24 new discovery in science that there's an element of

25 subjectivity to DNA interpretation?

26 A. No.

27 Q. And then moving on to the Exhibit No. 32, a 2016

28 paper -- again, 2016 being after our trial -- the contributors


169

1 of this paper, Mr. Budowle, we've spoken about him, and John

2 Buckleton. Who's John Buckleton?

3 A. John Buckleton is a scientist from New Zealand. He

4 works at the New Zealand Forensic Services.

5 Q. And is this the same John -- is this John Buckleton

6 who is one of the developers of STRmix?

7 A. Yes.

8 Q. And, in fact, I think STRmix is referenced under this

9 abbreviation column. They talk about it in this paper? I'm

10 looking at the first page of the exhibit.

11 A. Yes.

12 Q. Is this a -- was this one of the papers that you've

13 read?

14 A. No.

15 Q. Oh.

16 A. This is one that I had not had access to.

17 Q. Okay, okay. And would it be reasonable to conclude

18 that because the abbreviation for STRmix is listed that STRmix

19 is discussed in this paper?

20 A. That's my understanding is that part of this paper is

21 to suggest that complex mixture interpretation is increasingly

22 moving towards a more probabilistic model of interpreting DNA

23 data and that is what STRmix as well as a couple of other

24 programs do.

25 Q. And Mr. Buckleton, just to reiterate, on Exhibit

26 No. 30, the Journal of Forensic Sciences, the article about

27 inclusion, probabilities and dropout where we identified that

28 they were talking about question two, Mr. Buckleton, that's


170

1 the same Buckleton who developed STRmix?

2 A. Correct.

3 Q. All right. So back to Exhibit No. 32. And, again,

4 the passage that counsel highlighted for us at Page 215 on the

5 bottom of the right-hand column that begins with "If the DNA

6 crime scene profile is low level," that, again, is precluding

7 using the CPI statistics in answering question two --

8 A. Yes.

9 Q. -- correct?

10 There are, again, no studies that you are aware of

11 that have been brought to your attention by anyone in your

12 workshops, in your ongoing training, by defense counsel, by

13 Mr. Budowle, by Mr. Buckleton, by Ms. Ryan who we'll hear from

14 tomorrow, from anybody that indicate the method you were

15 using -- I'm sorry, the statistic you were using to answer

16 question one at the time of trial was in any way

17 scientifically invalid?

18 A. No. The -- the application of CPI to complex

19 mixtures, again, it's a tool. You need to understand the

20 limitations of that tool. One of the limitations of the CPI

21 calculation is that it does not deal with dropout

22 mathematically, and so you have to take into account dropout

23 in the interpretation of your sample. And if it is

24 reasonable, we were applying the CPI as a tool to estimate how

25 many people randomly picked from the population would match to

26 the same degree as the inclusion of the given individuals in

27 the evidence samples that we were testing.

28 And as -- as I've already mentioned, to me the


171

1 calculations that we performed were a reasonable estimate for

2 the significance of those associations answering question one.

3 Q. Now, I want to -- I got a little lost in the question

4 towards the end of your examination where Mr. Speredelozzi was

5 asking you if the pre-2011 guidelines were, quote, no longer

6 accepted in the scientific community.

7 As I understood the responses, is the complete answer

8 that they would no longer be accepted in the scientific

9 community to answer question -- I'm sorry -- because the

10 scientific community is answering question two?

11 A. Yes. So the -- because the DNA community has moved

12 towards answering question two, which, you know, by many has

13 been deemed to be the more relevant question and the question

14 that the Court is trying to get at, that is the -- the

15 question that labs have been moving towards.

16 And in order to do that, you cannot really use a CPI

17 statistic because there's no way to incorporate the

18 probability of dropout into that calculation.

19 Q. In Exhibit 12, which is the February 11th, 2016,

20 declaration that was provided for Mr. Amador's written

21 response in this habeas proceeding, I want to just reiterate

22 some of the assertions here and ask you if you -- if you still

23 maintain those assertions in light of many of the questions

24 that have been asked and answered today.

25 Is there any aspect of your opinion that

26 Mr. Dominguez is a possible minor contributor to the DNA

27 mixture contained in the leather gloves in item 16-3 or 16 --

28 I'm sorry -- 17-3 that has changed as a result of any of the


172

1 department guideline changes?

2 A. No. So the original opinion that I reached was that

3 I could not exclude him as a possible minor contributor to the

4 sample in 16-2, 16-3, 17-3, and I still think that he cannot

5 be excluded from those items.

6 The only thing that changed in between basically 2011

7 and 2015 was that the question that I was answering changed

8 and I did not have an appropriate statistic so I could not

9 support an inclusion with a stat so I couldn't render that

10 opinion in a report under the April 2011 guidelines.

11 Moving forward into 2015, I do have a calculator that

12 can handle the dropout and handles the answer to question two,

13 and I maintain that my conclusion is pretty much the same,

14 cannot be excluded as a possible minor contributor.

15 Q. So if Mr. Speredelozzi had asked you to reexamine

16 item 16-2, 16-3 and 17-3 six months after he did, your answer

17 would be the answer that's in your supplemental nine; is that

18 right?

19 A. Correct.

20 Q. Can you explain -- so on Exhibit 12, item three, the

21 assertion in your declaration for Mr. Amador, defendant's

22 claim that the 2010 SWGDAM interpretation guidelines brought a

23 seminal STR typing hereinafter referred to as SWGDAM or the

24 change in the San Diego Police Department crime laboratory's

25 DNA mixture interpretation guidelines eliminated Dominguez as

26 a possible minor contributor to the DNA mixtures in the

27 leather gloves is inaccurate.

28 Do you maintain that position?


173

1 A. Yes. I mean, the data did not change. My ability to

2 provide a stat is what changed. And the DNA types in the

3 sample still are the same between, you know, pre-April 2011

4 and my supplemental eight report. The data has not changed.

5 It's the same data.

6 So no new DNA types came in. No DNA types left.

7 It's still the same data. I just could not provide a

8 statistical answer to question two.

9 Q. And, in fact, again, if we go back to Exhibit 11 and

10 we look at item 24 which relates to what you would testify to

11 if you were asked to testify regarding supplemental report

12 number eight, it does not assert at all that Mr. Dominguez is

13 eliminated. It simply states what you have said many times

14 now this afternoon that no comparisons could be made, right?

15 A. Right. I've never changed my opinion to an

16 exclusion.

17 Q. And the only reason the comparisons couldn't be made

18 is being the guideline directed that you had to assign a

19 statistic and a model didn't exist to assign a statistic at

20 the time of that writing?

21 A. Correct.

22 Q. Did the SWGDAM guideline or ultimately the San Diego

23 Police Department guidelines -- I'm sorry. Let me keep it to

24 what's in your declaration, item 12 -- I'm sorry, Exhibit 12,

25 item four.

26 The defendant's claim that SWGDAM prevented analysis

27 or interpretation of DNA mixtures in the leather gloves is

28 inaccurate. Do you maintain that position?


174

1 A. Yes. SWGDAM published a list of guidelines and

2 there's nothing that compels any laboratory to follow those

3 guidelines.

4 Q. And those guidelines don't prevent you from analyzing

5 the data, do they?

6 A. No.

7 Q. Do your own police department -- I'm sorry, crime

8 lab, your own SDPD crime lab guidelines prevent you from

9 analyzing the data?

10 A. The -- the analysis, no. At the time of the first

11 and second trial, we were basically allowed to interpret the

12 data and provide a stat answering question one.

13 After 2011, we changed the focus to answer question

14 two and I no longer had a calculator that could handle or that

15 could address question two, and so we basically for that time

16 period were putting any sort of comparisons to low level

17 contributors for samples, we could not make an assumption

18 to -- regarding the number of contributors. We basically had

19 to say we're not going to make any comparisons to those low

20 level samples at this time.

21 Q. So when you use the phrase "we're not going to make

22 any comparisons to low level samples," is that the same as

23 saying we're not going to analyze or interpret DNA mixtures?

24 A. No.

25 Q. Okay. So the declaration refutes a claim by

26 Petitioner that SWGDAM or your department's 2011 guidelines

27 prevented analysis or interpretation of DNA, were you still

28 permitted to analyze and interpret DNA if you chose to, if you


175

1 were asked to?

2 A. Yes. If we had mixtures, we still had interpretation

3 guidelines for interpreting complex mixtures. We just didn't

4 have a calculator that could handle the low level mixtures.

5 Q. Did -- moving on to item five. SWGDAM does not

6 prevent any change in DNA technology. Is that correct?

7 A. That is correct. There's nothing in the 2010 SWGDAM

8 publication that is in any way a new technology. It's -- the

9 technology has remained the same.

10 Q. And SWGDAM is not a new technology that altered or

11 changed the process in which the samples are identified,

12 quantified or analyzed, correct?

13 A. No. We still were using PCR. We were still using

14 the same DNA testing kit to -- and the same genetic analyzers

15 to analyze the data.

16 Q. Item number nine. The change in police department

17 crime lab DNA mixture interpretation guidelines was not

18 required or mandated by any accreditation standard or

19 governmental requirement. Is that true?

20 A. That is true.

21 Q. Would you have had any sanction consequence push back

22 from the laboratory accrediting board if you didn't adopt

23 question two as the relevant question to be answered

24 henceforth?

25 A. No.

26 Q. If your lab chose to continue to answer -- or to ask

27 and answer question one rather than question two, would you be

28 prevented from testifying about question one in -- in court by


176

1 operation of the accrediting board?

2 A. No.

3 Q. And I think you've already mentioned this in

4 conjunction with one of your previous answers. But the SWGDAM

5 nor the change in P.D. lab policy changed the quantity of the

6 DNA present or the quality of the DNA present in the samples

7 that were examined; is that right?

8 A. Correct. As I mentioned previously, the data

9 remained the same until the 2015 analysis.

10 Q. Okay. And that data, the DNA in those samples, that

11 was the same physical evidence that existed at the time of the

12 first trial, right?

13 A. Yes.

14 Q. And existed at the time of the second trial?

15 A. Yeah, I think --

16 Q. I should say the 16-3 and 17-3 were new in the second

17 trial?

18 A. Yes, that is correct.

19 Q. But that the data that existed in samples 17-3 and

20 16-3, if they're at the lab, that same biological data is

21 still in those samples?

22 A. Yes.

23 Q. And, again, on item 12, there was nothing in the

24 SWGDAM -- that was a 28-page document, the SWGDAM guidelines,

25 right?

26 A. Yes.

27 Q. And of those 28 pages, there were a few guidelines

28 that you either -- that the lab either adopted in whole or had
177

1 already existed and was just sort of expanded upon; is that

2 right?

3 A. Yes. On the 28-page document, I would say that we

4 were pretty much following or in line with every guideline

5 that was there, and I think there was two that we felt we

6 could change our policies on to become more in line with where

7 the community was going.

8 Q. Relating to the question being asked?

9 A. Yes.

10 Q. Now, nowhere in those 28 pages of SWGDAM guidelines

11 was there any suggestion about what a lab should do regarding

12 results that it had rendered under some other previously

13 existing guideline, was there?

14 A. No, there was not.

15 Q. The reference is simply that each lab should follow

16 its own procedures in place?

17 A. I think the indication was to -- to review your

18 policies and procedures and update them as -- you know, as the

19 lab felt as best to -- to be in line with the guidelines.

20 Q. And your lab did that?

21 A. We did.

22 THE COURT: Is this a convenient time for the evening

23 recess? Or do you have another topic you can cover in five

24 minutes?

25 MS. BANNON: I could, but I think I would be rushing.

26 THE COURT: All right.

27 MS. BANNON: So it would be convenient to stop.

28 THE COURT: Great. Let's take the evening recess,


178

1 ladies and gentlemen. We'll reconvene tomorrow morning.

2 Addressing both counsel, does 9:00 o'clock work for

3 everyone -- 9:15? I'm sorry.

4 All right, Ms. Bannon?

5 MS. BANNON: I'll make that work, yeah.

6 THE COURT: All right. 9:15 tomorrow morning. We'll

7 reconvene at that time.

8 Counsel, feel free to leave anything on counsel table

9 you would like to. We'll be in recess. Thank you, folks.

10 (The proceedings adjourned at 4:19 p.m.)

11 -- O0O --

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179

1 STATE OF CALIFORNIA )
) SS.
2 COUNTY OF SAN DIEGO )

4 I, Adela Medina, CSR No. 11964, Official

5 Reporter for the Superior Court of the State of

6 California, in and for the County of San Diego, do

7 hereby certify:

8 That as such reporter, I reported in machine

9 shorthand the proceedings held in the foregoing case;

10 That my notes were transcribed into

11 typewriting under my direction and the proceedings

12 held on May 22, 2017, contained within pages 1 through

13 179, are a true and correct transcription.

14

15 Dated at San Diego, California, this

16 8th day of June, 2017.

17

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19

20

21 ____________________________

22 Adela Medina, RPR, CSR 11964

23

24

25 Government Code 69954(d): Any court, party,


or person who has purchased a transcript may, without
26 paying a further fee to the reporter, reproduce a copy
or portion thereof as an exhibit pursuant to court
27 order or rule, or for internal use, but shall not
otherwise provide or sell a copy or copies to any
28 other party or person.

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