People v. Wakefield, A-812-29

• Decision Date: 09 February 2015
• Docket Number: A-812-29
• Parties: The People of the STATE of New York v. John WAKEFIELD, Defendant.
• Court: New York Supreme Court

47 Misc.3d 850
9 N.Y.S.3d 540
2015 N.Y. Slip Op. 25037

The People of the STATE of New York
v.
John WAKEFIELD, Defendant.

A-812-29

Supreme Court, Schenectady County, New York.

Feb. 9, 2015.

9 N.Y.S.3d 541

John Wakefield, pro se, and Frederick Rench and Catherine Bonventre, for defendant.

Robert M. Carney, District Attorney (Peter H. Willis of counsel), for plaintiff.

Opinion

MICHAEL V. COCCOMA, J.

47 Misc.3d 851

The Defendant John Wakefield is charged with Murder in the First Degree (PL § 125.27(1)), Murder in the Second Degree (PL § 125.25(1)(a) (vii)), Murder in the Second Degree (PL § 125.25(3)), Robbery in the First Degree (PL § 160.15(1)), and Robbery in the First Degree (PL § 160.15(3)).

The People seek to introduce at trial scientific evidence of deoxyribonucleic acid (DNA) using a probabilistic genotype analysis. The Defendant does not argue that the principles and procedures applied to the evidence in this case to derive the DNA data prior to entry into the Cybergenetics TrueAllele Casework software are novel nor does the Defendant argue that the use of statistical models and likelihood ratios in reporting the probative value of DNA evidence is novel. Instead, the Defendant asks the Court to suppress that evidence as being novel in that it abandons the human element in analysis and it analyzes data that falls below the thresholds incorporated in standard practice by DNA laboratories.

Peter H. Willis, Esq., appeared on behalf of the People; the Defendant appeared in person and by Frederick Rench, Esq. and Catherine Bonventre, Esq. A hearing was held over numerous days at which the Court had a full opportunity to consider the evidence presented in this proceeding, including the testimony offered and the Exhibits received (see attached Table A). The Court further had the opportunity to observe the demeanor of the witnesses—Dr. Mark W. Perlin, Dr. Barry W. Duceman and Jay Caponera—and has made determinations on issues of credibility with respect to these witnesses and the weight to give to their respective testimony. The Court has also considered the arguments of counsel and the points of law referenced in their respective Memorandums.

Since Cybergenetics TrueAllele Casework has never been accepted in a New York Court, it is by nature novel scientific evidence. To be admissible in New York Courts, it must pass the Frye test as first formulated in Frye v. United States, 293 F. 1013 (1923) and subsequently adopted by the New York Court of Appeals in People v. Middleton, 54 N.Y.2d 42, 444 N.Y.S.2d 581, 429 N.E.2d 100 (1981). That protocol requires that expert testimony be based on a scientific principle or proceeding which has been “sufficiently established to have gained general acceptance in the particular field in

47 Misc.3d 852

which it belongs” (Frye, at 1014). A Frye inquiry is concerned with the basis of an expert's opinion and not whether the particular opinion is sound (Lugo v. New York City Health & Hosps. Corp., 89 A.D.3d 42, 929 N.Y.S.2d 264 [2nd Dept.2011] ). In other words, Frye is not concerned with the reliability of an expert's conclusions, but instead with whether the expert's deductions

9 N.Y.S.3d 542

are based on principles that have gained general acceptance as reliable (see Nonnon v. City of New York, 32 A.D.3d 91, 819 N.Y.S.2d 705 [1st Dept.2006] ). And in deciding the admissibility of novel scientific evidence, a court may consider “opinions, texts, laboratory standards or scholarly articles” as well as expert testimony (see People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994] ).

DNA identification is a powerful forensic tool for solving and preventing crime. Two common sources of data ambiguity in biological evidence are DNA mixtures from multiple contributors and low-template (evidence samples below the threshold) DNA. Although some American laboratories are moving to quantitative modeling of DNA mixture data, most still use Combined Probability of Inclusion (CPI) or Combined Likelihood Ratio (CLR), using the qualitative Boolean logic of all-or-none allele (the number of repeated words) events. Both approaches apply thresholds to the DNA data that cut off quantitative information. Their analysts subjectively apply these analytical or stochastic thresholds manually to data peaks to decide whether or not they believe the evidence peak represents an allele in the genetic material. But the more complex data that has mixtures or low-template DNA limits the applicability of such qualitative procedures.

Computer interpretation methods use more of the quantitative short tandem repeat (STR) peak height data rather than thresholds and have been used for over 20 years. Computers offer three principal advantages in the interpretation process: (1) productively-eliminates the often time-consuming human review of cases that are impossible to solve, (2) information-human review typically makes simplifying assumptions that can discard considerable identification information containing DNA evidence whereas a computer can use a statistical model to fully examine the quantitative peak height data, and (3) objectivity-human mixture interpretation methods sometimes use the suspect genotype (pair of allele) to help infer or report results whereas a mathematically programmed computer can infer a genotype directly from the evidence data without using any suspect information and then afterward compute a match likelihood ratio (LR) statistic from this genotype.

47 Misc.3d 853

Probabilistic genotypes have been recognized by regulatory bodies such as the Scientific Working Group on DNA Analysis Methods (SWGDAM)¹ in its 2010 “Interpretation guidelines for autosomal STR typing by forensic DNA testing laboratories” and the American National Standards Institute (ANSI) in the 2011 article “Data format for the interchange of fingerprint, facial & other biometric information” as a valid approach to DNA Interpretation and reporting. There are two probabilistic approaches:

(1)semi-continuous² —information is determined from the allele present-peak heights are not considered, and

(2)fully continuous³ —incorporation of biological parameters.

Cybergenetics TrueAllele Casework is a fully continuous probabilistic approach that analyzes the electropherograms (EPG) (computerized DNA data that a local laboratory extracted and amplified) and considers

9 N.Y.S.3d 543

the genotypes (pair of alleles) at every locus (pair of DNA sentences) of each contributor, taking into consideration the mixture weights of the contributors, the DNA template mass, polymerase chain reaction (PCR) stutter, relative amplification, DNA degradation, and the uncertainties of all these variables. Its genetic calculator uses Markov chain Monte Carlo (MCMC)⁴ to give the probabilities of all the different possibilities, not just a maximum possibility, and by using Bayes theorem⁵ , it decomposes that calculation into a prior probability and a likelihood function that compares genotypes relative to a population and computes a match LR.

The Defendant's expert, and others, question this approach. They argue that there is a lack of validation software, it is costly and time consuming, and it uses “black box” technology. The acknowledged success of Cybergenetics TrueAllele Casework has begun to erode these barriers and there is a move in the direction of probabilistic modeling, but the use thereof

47 Misc.3d 854

would still represent a minority of casework. However, the test is not whether a particular procedure is unanimously endorsed by the scientific community (Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 986 N.Y.S.2d 389, 9 N.E.3d 884 [2014] ), but whether it is generally accepted as reliable (People v. Wernick, 89 N.Y.2d 111, 651 N.Y.S.2d 392, 674 N.E.2d 322 [1996] ).

PEER REVIEW

There have been numerous articles published relative to Cybergenetics TrueAllele Casework (see People's Exhibit 15) in all the leading journals of the DNA community, including the American Journal of Human Genetics, the Journal of Forensics Sciences (the Official Scientific Journal of the American Academy of Forensic Sciences), Forensic Science International: Genetics, Plos One, Genometrics, The Croatian Medical Journal, and Science and Justice. Prior to being published, each of these articles had to be reviewed by two anonymous scientists in the DNA community to ensure a quality assurance that the manuscript and scientific results are up to the standards of the level of that journal, that the results are reported properly, that the results make sense, and that the conclusions that are drawn from the data are supported by the data. In addition thereto, there have been numerous forensic collaborations (see People's Exhibit 16) with other scientists in the DNA community.

VALIDATION STUDIES

Dr. Perlin testified that Cybergenetics TrueAllele Casework's source code is a trade secret, which he will not reveal. The...