Tuesday, September 6, 2011

Stephanie Lazarus Pretrial Hearing 9

Thursday, September 1st, 2011

I thought I would get to the hearing in plenty of time but I ended up missing it altogether. The interesting news is, I learned for the first time that the prosecution plans to introduce DNA evidence collected from other items at the scene, allegedly coming from the defendant, Lazarus. Here's what happened last Thursday.

When I got in my car to leave for court the battery was dead for the third time in under two weeks. The first time it happened we thought the door switch to automatically turn the headlights off had failed so we charged up the battery and made a point to turn off the headlights at the steering wheel lever. The second time it happened Mr. Sprocket put in the battery from his car. However, when my car died this time with his battery, Mr. Sprocket wasn't sure what the problem could be. Over the phone, Mr. Sprocket talked me through taking the monster spare work-truck battery from the garage to start up the car and let it run. (We keep this battery charged on a rolling cart so it was easy for me to get it out to the car.)

The minutes are ticking away to get to court on time. What to do, what to do? Do I forget the car and walk the mile or so to the Orange line bus or wait for Mr. Sprocket to get home? On the phone with Mr. Sprocket, we toss around the idea of putting the spare battery in the car in case the car doesn't start when the hearing is over, and I could jump it right there in the parking lot myself. The only problem with this plan is, the monster battery is too heavy for me to lift and get it into the trunk of the car. After the car had run for about 20 minutes Mr. Sprocket has me shut off the engine to see if it would start again without the extra battery assist. The engine won't turn over. This leads us to believe it's the alternator that's going bad. (Later in the day, Mr. Sprocket confirmed this diagnosis and installed a new alternator.)

I wait for Mr. Sprocket to get home so he can take me to the North Hollywood train. I'm very late, but I'm hoping there's a slim chance the hearing started late and I won't miss much of the oral arguments. I really want to hear the defense argument for the Kelly/Frye hearing. Just as I step off the elevator on the ninth floor of the Criminal Court Building I look up and directly inside the elevator car across from me I see DDA's Paul Nunez, Shannon Presby and Sherri's parents, Nels and Loretta Rassmussen heading down. I made it to the 9th floor, but I missed the hearing. I'm lucky they see me at the same time and someone holds the elevator while I sprint across the hallway to join them. I ask about the hearing as the elevator heads back down to the lobby.

A few days prior, I had the rare opportunity to meet with In Sessions' Beth Karas while she was in town. (For those of you who don't know, I met Beth on the second day of opening statements in the first Phil Spector trial. She's been a friend and colleague ever since.) We caught up with each other on the cases we were covering. Beth was in town covering a Conrad Murray pretrial hearing and leaving the next day for Florida and all things Casey Anthony. I shared with Beth what I knew so far about Kelly Soo Park and Lazarus. During that short chat, it was Beth who encouraged me do the one thing I have difficulty doing, and that is to ask the attorney's directly for copies of their motions. I'm independent and don't have the financial resources of a television network or newspaper to buy every copy from the court clerk.

So when I stepped inside the elevator with the prosecutors and Rasmussen's family, this was the first thing I did. I asked Shannon Presby if he would be so kind as to give me a copy of his response motion to the defense Kelly/Frye motion. Mr. Presby replied that he would and then asked me if I had a copy of the defense motion. I told him that unfortunately I didn't have that either. Presby said if I was willing to wait a moment, he would give me copies of all three motions. (Defense, prosecution response and defense final response.)

While I waited in the lobby, reporter Matthew McGough from The Atlantic was kind enough to tell me that I didn't miss much and that the next hearing would be in two weeks on September 15th. I took the opportunity to ask him if he was working on another article, since I thought I overheard him mention something at the last pretrial hearing. He says he is working on a new story and as soon as it's up on the web I'll link to it.

From my understanding, Judge Perry did not have counsel give oral arguments on their motion papers at this hearing and that's why it was so short. Once I got a chance to read the motions, I was surprised to learn that the prosecution plans to introduce other DNA evidence on items collected at the scene that allegedly can not be excluded as coming from Stephanie Lazarus.

I will quote from these motions to summarize the defense motion and the prosecution's response to the defense.


From Pages 1 & 2
"...Stephanie Lazarus, through counsel, will move for a hearing concerning the admissibility of the results of DNA analyses by Serological Research Institute ("SERI") utilizing the AMpFISTR® MiniFiler™ ("MiniFiler™").

The motion will be based on the ground that SERI's DNA analysis utilizing the MiniFilter™ must first satisfy the first and third prongs for admissibility required by People v. Kelly, 17 Cal.3rd 24 (1976) and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and their progeny. MiniFiler™ is a completely new DNA analysis commercial kit and its analytical results have never been admitted in evidence over a Kelly challenge."

This is the crux of the defense argument. From my understanding reading the defense motion, the independent lab, SERI used a totally new DNA extraction technique (MiniFiler™) that has not met the rigorous test of scientific standards and acceptance and therefore cannot be admitted at trial. The defense motion is 13 pages detailing what DNA analysis is and the current accepted methods of DNA extraction. The titled headings are: DNA ANALYSIS; PCR/STR TYPING; MINIFILER™; People v. Kelly; Kelly Prong One; Kelly Prong Three. (I hope you can understand why I am not posting the entire motion, just excerpts.)

Overland's motion on pages 9 & 10 states:
"The first Kelly prong provides that admissibility of expert testimony based on "a new scientific technique," requires proof of its reliability. A new scientific technique is reliable when it is "sufficiently established to have gained general acceptance in the particular field to which it belongs. Despite superficial similarity to past generation kits, there are significant analytical differences involving the use of MiniFiler™."

Pages 10 & 11:
"There is a lack of scientific acceptance of MiniFiler™ for use on low level mixed samples. Accordingly, as utilized in this case, MiniFiler™ employs a new scientific technique that requires a preliminaryshowing of the technique's general acceptance in the relevant scientific community. The third prong of Kelly requires the prosecution to establish that the analyst used "correct, scientifically approved procedures." (See People v. Venegas, 18 Cal. 4th at 80."
"Even if MiniFiler™ could pass the first prong required for admissibility in this case, Kelly's third prong requires an analysis of the validity of the procedures actually utilized in the case before the Court. In order to determine whether the SERI MiniFiler™ analysis meets the third prong of Kelly, Ms. Lazarus requests that the Court issue the attached Order requiring SERI to produce its MiniFiler™ internal validation as well as SERIs most recent ASCLD-LAB audit report and its current contamination and/or corrective action log."
(End quotes from defense motion)

When I first stumbled through reading all the technical information contained in the defense motion, I was wondering what other DNA samples the SERI lab could have tested that the defense is trying to get excluded through this motion. All I knew about at this time was the "bite mark swab" presented at the preliminary hearing and the DNA that allegedly matched Lazarus. Reading the prosecution's reply motion made it clear what the SERI lab had tested.


Page 2
INTRODUCTION On April 22, 2011, The Serological Research Institute (SERI) reported the results of their analysis conducted on various items of evidence including: (A) SERI Item 5 (LIMS 11) - a portion of a fingernail discovered near the front door of Rasmussen's home; (B) SERI Item 8 (LIMS 16) - fingernail clippings from Rasmussen taken by the coroner; and (C) SERI Item 13 (LIMS 21) - a swab taken from another fingernail discovered near the front door of Rasmussen's home.(1)"

(So as late as just a few months ago, SERI conducted DNA testing on items collected from the coroner AND at the scene. Two items collected at the scene would have been in LAPD custody all this time and not the coroner's freezers.)

"Those results are contained in SERI's Amended Third Analytical Report attached as Exhibit 1.(2) In short, as to SERI Item 5, SERI determined that material found under Sherri Rasmussen's fingernail could have been derived from Defendant Lazarus. SERI concluded that one woman in twenty-six thousand (26,000) unrelated individuals would exhibit this same set of DNA markers. As to SERI Item 8 (subdivided into 8-B1 and 8-B2); SERI concluded that Defendant Lazarus could have been a contributor. SERI concluded that, as to 8-B1, one woman in ten (10) unrelated individuals would exhibit this same set of DNA markers; as to 8-B2, one woman in (9) unrelated individuals would exhibit this same set of DNA markers. With respect to SERI Item 13, SERI concluded that Defendant Lazarus could have been a contributor. SERI concluded that one woman in nine thousand (9,000) unrelated individuals would exhibit this same set of DNA markers. SERI utilized the MiniFiler test kit to obtain these results."

This new DNA evidence extracted from the torn fingernails found at the scene appears to be problematic for the defense because from my understanding the defense has not raised issues of possible evidence tampering with these DNA samples like the defense has with the "bite mark swab" during the preliminary hearing.

On pages 3 through 5 of their motion, the prosecution argues that the MiniFiler test kit does not constitute a new technology.

"Because the MiniFiler test is not founded on any new science and because SERI employs the testing protocol procedures necessary and sufficient to insure the reliability of its test results (the correct procedures) a Kelly hearing is unwarranted. "Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or in part, on a technique, process, or theory which is new to science and, even more so, the law." People v. Stoll, (1989) 49 Cal. 3d 1136, 1156; see also, People v. Webb, (1993) 6 Cal. 4th 494, 524. Courts are unlikely to perceive a scientific technique as "new" if it has been subjected to "repeated use, study, testing and confirmation by scientists or trained technicians." People v. Leahy, (1994) 8 Cal. 4th 587, 605. Both concordance studies and validation studies of the MiniFiler test kit have shown it to be both effective and reliable.(4)

Below is footnote 4:
"4. See, Concordance Study Between the AMpF/STR MiniFiler PCR Amplification Kit and Conventional STR Typing Kits, J. Forensic Sci., July 2007 Vol 52 No 4, p 870-973 (attached as exhibit 2) finding "Full concordance between Identifiler and MiniFiler . . . in 99.7% (10,437 out of 10,464) STR allele calls compared." Id., at p 871; see also, Validation of the AMP/FSTR MiniFiler PCR Amplification Kit for Use in Forensic Casework, J. Forensic Sci., July 2007 Vol. 54 No 5, p 1046-1054 (attached as exhibit 3) finding "This study demonstrates that the MiniFiler kit is successful in generating robust and reliable DNA profiles from samples exhibiting DNA degradation or PCR inhibition. Id., at p 1054."

From reading the footnote, it would appear that back in 2007, the MiniFiler test kit was validated as being a technique that is 99.7% accurate in generating DNA profiles from samples tested.

The people also argued that the MiniFiler test kit was not new technology.

"Once a particular scientific technology (such as PCR/STR DNA testing) is held to be generally accepted, new or varied applications of that fundamentally unchanged technology do not raise a "prong one" Kelly question requiring a Kelly hearing. See, People v. Hill, (2001) 89 Cal. App. 4th 48, 58. A scientific technique that remains fundamentally unchanged, but is simply refined, improved, or varied in its application, is not a new scientific technology requiring a "prong one" Kelly hearing. Hill, supra, at p. 58 (new and varied PCR/STR testing kits do not require new prong one hearing). At the time that the Hill court made its decision:
". . . two methodologies are widely used in forensic DNA testing: restriction fragment length polymorphism (RFLP) and PCR. (cite omitted) There are three subtypes of PCR testing: DQ-Alpha, which test a single genetic marker; Polymarker, which tests five genetic markers; and the STR, which tests three or more genetic markers. (cite omitted) The RFLP and PCR methodologies, including the PCR subtypes, have acquired general acceptance in the scientific community."
Hill, supra, at p. 57. Hill's holding controls the present case. This fact is made explicit when the Hill court states:
We reject the argument that each new PCR/STR test kit must, as a matter of law, be subjected to a Kelly prong one analysis to determine scientific reliability. (cites omitted). The Kelly prong one analysis applies to new scientific techniques.
Hill, supra, at p. 58."

In their motion, prosecutors cited eight different California and Federal court appellate rulings regarding the fundamental validity that PCR and STR analysis is well established by the scientific community and the law.

The motion then goes onto to cite seven other cases in detail arguing on page 4 that:

"...an evolution in testing does not constitute a new scientific technology for the purposes of Kelly..."

"In the present case the core technology of PCR/STR DNA testing has been firmly established and is widely accepted within the scientific community. As the court in Hill stated (discussing an earlier testing evolution of the PCR/STR technology) "The [new test kit] does not embrace new scientific techniques. To the contrary, it uses the PCR and STR testing methods, which are generally accepted by the scientific community. It is just more sophisticated because it examines a greater nuber of genetic markers. The test result will exonerate the innocent and, as here, will seal the fate of the guilty." Hill, spura, at p. 59. As in Hill, the MiniFiler test kit rests on the same underlying science as all PCR/STR DNA testing. Because the scientific technology supporting the MiniFiler test is not new, the defendant's request for a Kelly hearing should be denied."

The prosecution then addressed the "prong three" of Kelly, stating all that is necessary is

"... a foundational showing that correct scientific procedures were used."
Hill, supra, at p. 58. This showing is best accomplished not in a separate Kelly hearing but by way of an Evidence code § 402 hearing preceeding the receipt of the expert testimony at trial."

Judge Perry ruled just from the written motions alone, denying the defense motion for a Kelly/Frye hearing for "prong one" and "prong three" on the MiniFiler test results. Next hearing is September 15th, 2011.