U.S. v. Lowe, Criminal No. 95-10404-PBS.

• Citation: 954 F.Supp. 401
• Decision Date: 06 December 1996
• Docket Number: Criminal No. 95-10404-PBS.
• Parties: UNITED STATES of America v. Paul E. LOWE, Defendant.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Page 401

954 F.Supp. 401

UNITED STATES of America v. Paul E. LOWE, Defendant.

Criminal No. 95-10404-PBS.

United States District Court, D. Massachusetts.

December 6, 1996.

As Corrected January 16, 1997.

Peter Parker, Federal Defender's Office, Boston, MA, for defendant Paul E. Lowe.

Paula J. DeGiacomo, Despena F. Billings, United States Attorney's Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. Introduction

This memorandum addresses a challenge to the admissibility of DNA profiling evidence in a criminal trial. On November 8, 1996, Defendant Paul Lowe was convicted of carjacking, in violation of 18 U.S.C. § 2119, kidnapping, in violation of 18 U.S.C. § 1201(a), and forcible transportation of another for criminal sexual activity, in violation of 18 U.S.C. § 2422(a). Prior to trial, pursuant to Fed.R.Evid. 702, 901 and 403, defendant Lowe had filed a motion to exclude evidence that his DNA profile matches the DNA samples in the rape kit of the alleged victim, her clothing, and in her car. Lowe raised essentially three challenges to the government's proffered evidence.

First, Lowe claimed that a new protocol employed by the Federal Bureau of Investigation ("FBI") in generating DNA profiles from forensic samples in this case via a method known as Restriction Fragment Length Polymorphism ("RFLP") analysis is not sufficiently reliable to be admissible. Chemiluminescence along with three other changes to the FBI's RFLP protocol were introduced in October of 1995, and were officially adopted in June of 1996. The other changes challenged here are (1) the elimination of ethidium bromide, (2) use of longer gels, and (3) use of new sizing ladders. Specifically, he alleged that the FBI's adoption of chemiluminescent probes and these other changes in the RFLP typing procedure has yet to undergo adequate scientific validation, rigorous peer review, or acceptance by the relevant scientific community. He also challenged the FBI's practice of comparing DNA profiles generated by the chemiluminescent protocol with databases generated under the old protocol, which used radioactive isotopes in determining population frequency.

Second, Lowe challenged the admissibility of DNA profiles obtained with a typing procedure known as polymerase chain reaction ("PCR") analysis,¹ on grounds that two of three PCR tests conducted—the Polymarker and D1S80—have not been adequately validated through scientific testing and the peer review process, and are not generally accepted.

Third, with respect to RFLP and PCR, he further claimed the reliability of the FBI's results cannot be ascertained because the FBI's DNA Unit fails to compile, or make any effort to calculate, laboratory error rates, and because of inadequate proficiency testing.

After due consideration for each of the factors flagged in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), governing the admissibility of scientific evidence, and after four days of extensive evidentiary hearings, on July 30 and September 6, 13 and 17, 1996 the Court DENIED Lowe's motion and sets forth the findings of fact and conclusions of law below.

II. Background

A. The Crime

At trial, the government introduced evidence of the following. Lowe assisted a young woman ("K.") whose car was stuck in a snowbank at the end of her driveway after a snowstorm, in Lowell, Massachusetts. He then forced her to let him in, and drove her to New Hampshire where, in the front passenger seat of the car, he forced her to perform oral sex on him and raped her vaginally. He then drove her in her car back to Lowell, Massachusetts, where he left her, after stealing her jewelry.

The primary defense was consent. Upon arrest, defendant admitted to the police to having sexual intercourse with the woman in an apartment, but insisted that she consented.² At trial, defendant claimed K. had a motive to fabricate that her consensual sexual conduct was a rape because of an abusive relationship with her boyfriend.

B. The Forensic Samples

K. told the government she drove to her boyfriend's house and was taken to the hospital later that day, where a rape kit was administered and blood and hair samples taken. Her clothing, an overcoat, and a towel she had used at her boyfriend's house to wipe her vaginal area were collected for forensic examination and analysis. Hair and other biological samples were also collected from both the passenger and driver sides of her automobile. In particular, a swab of human fluid was taken from inside the driver's side window. Upon Lowe's arrest, the blue jeans he was wearing were seized. By order of this Court, Lowe provided blood and hair samples to the government as well as items of his clothing. The FBI's DNA Analysis Unit subjected the forensic samples, along with the known biological samples provided by K. and Lowe, to either RFLP or PCR DNA analysis, and concluded that Lowe's DNA profile is "consistent" with certain of the forensic samples. Corresponding probabilities that this could be of pure coincidence were calculated.³ The RFLP analysis yielded a match probability of 1 in 11 billion for the Caucasian population. The PCR analysis yielded a figure of one in 810,000 for the same population. Lowe does not dispute his classification as Caucasian, and does not present this Court with any evidence that he belongs to a sub-population (i.e., Swedish).

C. The hearing

During the evidentiary hearing, the Government relied on the testimony of Alan M. Giusti, a forensic examiner at the FBI's DNA Analysis Unit, Scientific Analysis Section ("DNA Unit"), who performed the DNA analyses in this case, and Dr. Martin L. Tracey, a biologist with an expertise in DNA and population genetics. The defendant relied on testimony of Dr. Dan E. Krane, an assistant professor in the Department of Biological Sciences at Wright State University in Ohio. Cited extensively is a Report of the National Research Council, The Evaluation of Forensic DNA Evidence 0-3 (1996) (prepublication copy) [hereinafter "1996 NRC Rep."] which both the government and the defendant agree is an authoritative work in the field.

III. Scientific Background For DNA Profiling

A. A Primer

Human cells contain a nucleus. Within each nucleus there are 46 chromosomes, 23 inherited from each parent. Each chromosome is constructed of deoxyribonucleic acid, or DNA, which "contains the coded information that provides the genetic blueprint" for each individual. United States v. Jakobetz, 955 F.2d 786, 791 (2d Cir.), cert. denied, 506 U.S. 834, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992). Within each human being, the "cells from various tissues, such as blood, hair, skin, and semen, have the same DNA content and therefore provide the same forensic information." 1996 NRC Rep. at 0-3.⁴ With the exception of identical twins, the precise configuration of DNA differs from person to person, however, resulting in the physical uniqueness of each individual and the usefulness of DNA typing for the purposes of identification. Id.

The physical structure of DNA resembles "a twisted rope ladder with stiff wooden steps." Id. at 2-2. The sides of the ladder are composed of phosphate and sugar molecules, while each rung is composed of a pair of organic compounds called bases. There are four kinds of bases: adenine ("A"), guanine ("G"), cytosine ("C") and thymine ("T"). Id. Because of their chemical composition, T always pairs with A, and G with C. Id. This strict pairing rule means that the order, or sequence, of bases on one side of the DNA ladder will determine the sequence of the other side. Id.; Jakobetz, 955 F.2d at 791. See Appendix A.

The entire order, or sequence, of base pairs observed in the DNA ladder of a particular individual is the genetic code of that individual. 1996 NRC Rep. at O-4. [Giusti Aff., ¶ 24] A gene is a portion of DNA comprised of anywhere from a few thousand to tens of thousands of base pairs, the specific sequence of which serves as an encoded formula for producing the various proteins that make up the human body, and the particular features of individual human beings, such as blood type, eye color, etc. Id.

B. Variable Number of Tandem Repeats ("VNTR's")

Other fragments of DNA have no known function, but display varying numbers of repeats of a recognizable core sequence of base pairs, known as Variable Numbers of Tandem Repeats ("VNTRs"). Id. at O-6. The position that a gene or other DNA fragment occupies on the DNA ladder is called its "locus." Id. at O-4. At a given locus, sequences that vary in the number of repeats from individual to individual are known as "alleles." Id. at 2-6. Certain loci are particularly useful for forensic analysis because they are highly polymorphic, that is, they have a very large number of alleles, which can be identified by both their core sequence, or distinct order of As, Ts, Cs, and Gs, and their length, or exact number of repeats of each sequence. Id. at O-6. [Giusti Aff. ¶ 27].

When several polymorphic loci are analyzed at once, the possible genetic variability becomes enormous, id., reducing the likelihood that two different DNA samples so analyzed would "match" were the donor of each not the same individual. Mr. Giusti compares VNTRs to boxcars on a train. For example, at a particular locus a sequence such as GTGAGCTT-TTAGTAAAG may repeat itself 70 times or as many as 450 times depending on the individual. Giusti Aff. ¶ 36. Because the number of VNTRs varies from individual to individual, the length of the polymorphic fragments varies commensurately. RFLP analysis measures and compares the length of fragments.

C. Polymorphisms

There are two types of polymorphisms of interest in DNA profiling: length and sequence. Length polymorphisms, or VNTRs, as mentioned, are differences in the length of a particular allele, measured in terms of the number of repeats of a simple core sequence of base pairs. Sequence polymorphisms are...