Arguments & Ruling on mtDNA

Arguments & Ruling on mtDNA

Preliminary Hearing

November 14 & 17, 2003

D. HARRIS: Does the Court wish to take the break now?

JUDGE: You have no other witnesses, then, today? You just want to have argument after?

D. HARRIS: Well, we have other witnesses, but they're much longer.

JUDGE: You want to hang on to one, and we'll finish the arguments, maybe? Is that okay? Keep Hendee, and then let's do the arguments? And we'll start again at 10 till 3:00. I'll give you an hour each -- correction, half hour each. And the burden is on Mr. Harris. So divide up your time accordingly for rebuttal.

D. HARRIS: All right. Thank you.

JUDGE: And one comment I wanted to make. Tentatively, looks like Kelly is satisfied, but the main issue that I have a concern about is the statistical probability determination at the end, and the small samples involved, 5,071, and then actually the sample's really 1833 of Caucasians. So you should concentrate most of your argument in that area. So we'll start up again at 10 minutes to 3:00.

GERAGOS: Thank you, Your Honor. (Recess: 2:30 p.m.)

JUDGE: Let the record reflect that everyone's present. Mr. Harris.

D. HARRIS: I guess the best place to start, since it is the People's burden is to establish what that particular burden is in this particular case. As we've cited to the Court before, under the People versus Ashmus case, it's a preponderance of the evidence standard. So across the spectrum of the basic admissibility of all the mitochondrial DNA subsections or generally, or whatever theory, that's the standard the Court needs to apply to see if we've met our burden. In this particular case, the prosecution presented two very well-qualified witnesses: Dr. Budowle, who's recognized as being one of the most prominent experts in this particular area, both mitochondrial DNA, nuclear DNA and as a forensic scientist, I think that's fairly obviously both from his resume' and from his testimony and from all the articles and publications that are before the Court; the second witness, Dr. Fisher, also eminently qualified in; this particular area, to state an opinion on the general acceptance of mitochondrial DNA. So if we were to stop at that point in time and look at this, the Court would really have no choice but to admit that based upon the testimony of those witnesses. Their particular opinions that it is generally accepted both in theory and in practice, as the Court had directed us towards the start of the Kelly/Frye hearing at the beginning of the case, the Court was more interested in the forensic area. So focusing on that particular area, the only thing that prevents the Court from allowing everything to come in exactly as the FBI practices and performs is the testimony of Dr. Shields. That's the only objection to anything that the FBI is doing. Now Dr. Shields, I guess, can best be characterized as somewhat of a backseat driver of science or a professional complainer. He comes in. He doesn't do the work. He's not really an expert in the area, because he started from the very beginning on voir dire being asked if he does any forensic mitochondrial DNA, and he states that he doesn't. He has a laboratory that conducts mitochondrial DNA research, and it's okay for research, but it's not okay for forensics. So we start getting into the bias of Dr. Shields right from the beginning, but Dr. Shields is being paid for his testimony. He comes in and he has a complaint right from the start of everything but nothing. If the Court will recall his testimony, when I broke it down piece by piece, he had no complaints about the process of extracting DNA. He had no complaints about the process of amplifying DNA. He had no complaints about the process of sequencing DNA. And he had no complaints about the process of using standard statistical calculations to come up with some type of calculation based on the database. Now, when Dr. Shields was pressed on that particular point, his only defense was, well, we know about blood pressure, respiration, heart rate; but we don't allow lie detectors. That's a very simplistic argument that kind of belies his bias in this particular case because there's no correlation between a lie detector and what every other member of the scientific community says about mitochondrial DNA. One of the other flaws with Dr. Shields' testimony is the fact that he pretty much is not willing to assist the Court because of his internal bias. He starts with the simple fact that he refuses to answer the question for the Court of what is generally accepted in the scientific community. So if the Court were to look at that and say, we start with that basic premise that he's not even willing to give us that particular information, his testimony as it relates to the statistics, as the Court wanted us to focus on, gets thrown out. It's a factor the Court can look at, but because of his bias as to that particular point, it really has no meaning, because as Dr. Shields pointed out, I'm willing to talk about the presumption of innocence, which is a legal term, but I'm not willing to get caught on what's generally accepted. And I think there's a reason for that, and the reason for that is that Dr. Shields has been going about for a long period of time complaining about mitochondrial DNA. I would point the Court out to one of the exhibits that we provided initially to our motion, and that would be State versus Pappas, and that's item Number 4. On page 17 of that particular printout that we provided as a copy to the Court, the Court in Connecticut had the same hearing that we're having here, went through the same process of evaluating what Dr. Shields testified about and, in 1991, ruled on the statistical area that Dr. Shields is wrong. At that point in time, the database was much smaller. Actually, the trial was in '91. So when you look at this, he's talking about the FBI's database. He's talking about all the other factors that we go on. As the Court points on it, the database that the FBI uses is a convenience sample, and they had no problem with that. Dr. Shields, he wouldn't necessarily commit one way or the other. When he was asked about nuclear DNA, he didn't necessarily have a problem. So again, Dr. Shields has had this long period of time where he's complaining about what the FBI does. And I think Dr. Shields' bias is very, very clear against the FBI, and I think that's another factor the Court has to consider here. When he was asked about publishing in this particular area, Dr. Shields said, well, I submitted my peer-review article, an article that I wanted to publish criticizing the FBI's validation study, and because of unknown players out in the universe, I guess you could use the term "this conspiracy," people prevented his paper from being published. It was fairly clear from what Dr. Shields was implying that the FBI was behind this, and they prevented him from publishing this. Now, that can be contrast with another exhibit where Dr. Shields was asked almost the exact same questions before, and that's People's Number 83, which is the Court's opinion in the case of the People versus Hobbs. In that particular case, Dr. Shields was asked about why he didn't publish, he did not publish his own countervailing views. And that's on page three of the decision and order down at lines 21, and he says that "I have written a paper about the unreliability of mitochondrial DNA for forensic purposes, which I presented at a meeting of the Triple A.S. Publishers of Science, but I didn't publish it because I'm not a forensic scientist. It's not in my ballpark to make it right." So Dr. Shields has been saying -- that was a 2002 decision from early on until now -- that nobody seems to do it right but him, yet he has published nothing, he has shown nothing, he has done nothing other than critique other people's work. So, again, if the Court were to set aside Dr. Shields, we'd be back at the same position we were before of Dr. Budowle, Dr. Fisher that there's nothing wrong with what they're doing. Now, you can also go through the other exhibits. There's Number 4, which is State versus Pappas, and that particular case happened to be an FBI examination of hair. People versus Holtzer, the Michigan case, he was against that. And State v. Ware, which he testified to, he was against that there. All of those cases, other courts across the country have found that Dr. Shields' testimony was either unreliable, not credible, not to the point of overcoming what's required of Frye or Kelly. This same thing happened in the Hobbs cause. I think the Court's decision in that case, again, 83, is a significant factor because this decision almost mirrors exactly what we have here. In the Hobbs court, the prosecution offered the testimony of Dr. Mitchell Holland. Dr. Mitchell Holland's testimony was received in the Lamont Johnson case out of San Diego. That's also included as an exhibit of 21-A. In 21-A, Mitchell Holland testified that there's no problems with mitochondrial DNA that cannot be overcome by the analyst and the statistical calculations are appropriate. That transcript goes into the Hobbs case. Dr. Shields comes in and testifies basically against a transcript, and the Court found that it was going to be admissible anyways. The Court went on to note that "Dr. Holland's credentials, as recited in the San Diego transcript, demonstrate his imminent qualifications to render an opinion as to the general acceptance in the applicable scientific community." Whereas, it goes on "Dr. William Shields is not a member of that community but, rather, is an environmental science professor whose genetic work principally dealt with nonhuman populations. The Court can only surmise that Dr. Shields' explicit refusal, in the face of multiple direct inquiries by counsel and by the Court, to address the issue of whether mitochondrial DNA forensic case work is generally accepted in the scientific community was a refusal based upon the witness's lack of experience." That's exactly what we had here. Dr. Shields was not willing to give us an opinion. As we pointed out in our points and authorities originally, Connecticut versus Pappas dealt specifically with the exact same statistical area that the FBI uses here. And if the Court really boils it down to, Dr. Shields tried to mix somewhat apples and oranges, and that's something Dr. Budowle kept saying you can't do. The database size is different from the statistics. The database size is different from the statistics. That was one of those things that kind of went over and over again. Dr. Shields admits that the statistical formulas that's applied to the database to reach the confidence interval is a standard, basic statistical formula that you're taught in first-year statistics. It's not something that even rises to the level of Kelly; and we pointed out in our points and authorities how People versus Venegas makes that specifically point when it dealt with electrophoresis and blood markers. When you're talking about something that the jury can understand in terms of simple counting, 1 out of 10, 1 out of 100, 1 out of 5,000 in the database, that's something that they can look at and say it matches or it doesn't. You don't even need an expert for that. So when we talk about the statistics of the confidence intervals and the formulas of reliability, that is really a lot of smoke and mirrors. It doesn't have to do -- anything to do with the fact of the size of the database. It's a standard statistical formula. It's something that can be used to give them, as Dr. Fisher testified to, a showing of that Bell curve that, if there's a chance for that error, that you fall within that general area of acceptance, 95 percent. Dr. Shields put up on his chart 95 percent, but he would rather have you do it at 99 percent. He's not saying that it can't be done. He just wants you to use a different formula. That's a choice of weight. That is not a choice of admissibility for Frye or Kelly purposes. So, again, even the doctor's testimony, when you boil it down isn't saying you can't do it. He just wants you to do it some other way. Every other statistician, every other person, every other person that's dealing with that finds the counting method and the confidence interval to be accepted in the forensic community; and that you find in People's Number 33, the "Forensics of Mitochondrial DNA." In that particular article, they go through and they talk about all of the potential issues, and nobody has a debate about the statistics. In every single article that the defense offered, no one complained about the statistics. The only issue was whether there was heteroplasmy and whether the database should be shared. So even the defense's articles, which tends to portray the scientific community, shows there isn't a problem. So since there is no dispute as to that particular point in the scientific community, Dr. Shields' testimony can be basically ignored. Case law is very clear. There does not have to be a consensus. There does not have to be a unanimity of opinion. As long as the general populace of the scientific community agree that something is acceptable, it is acceptable and that's all that's required for Kelly. So by a preponderance of the evidence, it's quite clear that the statistics, as explained by Dr. Budowle and Dr. Fisher, are quite clear. The last thing I want to leave the Court with is to look at Dr. Shields' testimony when he was pressed on one particular point when he talked about the sample, the database size. He talked over and over and over again about how it's too small. But when it was pointed out he's done studies on exactly the same size for validation, that validation, Dr. Budowle went on to explain how, no, that's not true, Dr. Shields was misleading the Court. And I would point to the validation study which he was talking about, which is Exhibit 22, and point to page 72 of that particular exhibit where they talk about the total -- total show of number of samples typed; and if you look down at the bottom, it says 224. This is a table in the document that Dr. Shields was complaining about, and he kept coming back to this number of five. If you go through the articles, it talks about in different places, twelve hairs here, four hairs there. More than five samples. Dr. Shields' reluctance to look at the facts, shows his bias against a particular scientific value; and in this particular case, the only thing that's left, when you get down to it, is the counting method. The National Research Council has said the counting method is appropriate, that you compare the number and you report out how many are in the database. That's in our paperwork where we talk about how the Supreme Court has said NRC's reports are entitled to great weight. So under those circumstances, if we look at the NRC report where they say counting is appropriate, Venegas says counting is appropriate and you don't even need a Kelly hearing for that particular area. We don't have the same match probabilities, we don't have the same product rule argument that came up in the old days with nuclear DNA. This is a much simpler approach: One out of whatever. Even Dr. Shields admitted, if it was done his way, the way that he wanted, that database is appropriate to report out a result, which would be 1 out of 9. So even under Dr. Shields' testimony, the Court can get a valid result to give to the jury to help them understand why this is admissible. So I'd like to reserve the rest of my time and just point out to the Court that it really boils down to the credibility of Dr. Shields.

JUDGE: You have 15 minutes left. But let me ask. You've cited People's Number 22. Which page were you citing? Or did you mean the transcript, which was twenty --

D. HARRIS: 22 is the validation study of the FBI.

JUDGE: Correct. Which page did you cite? You cited a page. I thought you said page 71. There is no 71 there.

D. HARRIS: I have on this particular copy at the top --

JUDGE: I see it now. The copy I was looking at it's faded out, but 72 is there. Okay.

D. HARRIS: Has a table underneath that?

JUDGE: Correct. Mr. Geragos.

GERAGOS: Thank you, Your Honor. If I understand Mr. Harris correctly, he wants you to accept Budowle and Fisher and throw out Shields. And his reason for throwing out Shields is that because Shields is somebody who does research in the area as opposed to somebody who does forensics. The whole idea is whether or not this application of this science is appropriate to forensics, number one, and, number two, whether or not the way it's being reported -- and I think if I understand the Court's tentative correctly, whether the way it's being reported is appropriate in a court of law; and, clearly, it's not Dr. Shields who has the only hesitation with the way that it's being reported in a court of law. I specifically asked Dr. Budowle and I think that was at page 9 -- my reference is 952, regarding the database and the size of it, asked: "The reliable -- the mtDNA is too small at this time to provide estimates of the frequency of occurrence of most mtDNA sequences in the population?" Answer by Budowle: "I have to agree with that, Your Honor, because most will not be seen in the small size database, forgetting the actual frequency. You can still make an upper bound on the frequency by the observation, but you would not be able to see all of the mitochondrial types unless you do an exceedingly large amount." I then asked: "And as a result of you agreeing with that statement, would you also then agree with the statement that to date, the number of mtDNA sequences present in the general population is unknown because not all sequences have been observed?" He says he agrees with that. He also agrees at page 952 and 953, that actual frequency can't be given, that they only give what they call an upper bound. He agreed at 953 when I said: "Would you also agree with the statement -- the following statement: The fact that small databases are not effective tools for estimating frequency for rare events?" His answer: "Absolutely right again. We have to give you the upper bound, the more conservative, which would be greater than those -- most rare events will ever be, in favor of being more conservative." I then asked at 953: "Would you agree that the FBI -- as the FBI database grows in size, the frequency estimates for individual mtDNA profiles would become more and more refined and eventually lead to reliable population frequency?" "Answer: I agree with that, but it's going to be a very large database." Specifically Dr. Fisher said -- I asked her, and I believe this is on page 92 of the first day of the transcripts. "Question: Okay. And, in fact, mitochondrial DNA has a limitation, and the limitation is that the only frequency that you can determine is based upon the size of the database that you're operating from; isn't that correct?" "Answer: The statistics that we can give on the frequency are limited by the size of the database." "Question: Okay. So if we come back a month from now, we may have 6,003 or some other such number?" Her answer: "I would love it, but I doubt it's going to be that quick." I asked: "Is it a fair statement that based upon the rate of typing, if you will, that you're not expanding this database at a very quick pace?" Her answer: "Unfortunately, that's true." I said as a -- and I believe this is also on page -- on the second day of transcripts, page 205 and 206: "Is it fair to say that, as of today, the 5,071-person database that is being accessed by this computer program is, to your mind, inadequate?" Answer, and this is by Dr. Fisher: "It's not inadequate. It's smaller than we would like, but it's certainly useful for estimating population frequencies." And then she goes on to say: "I would like large enough that we could see every mitochondrial type. I don't know how large that has to be. We won't know until it is that large." "We would like it to be larger." The problem you've got, and I think the Court is zoned in on it appropriately, is this is a criminal case. It is a capital case. Before you start allowing somebody to come in and opine, there has to be, I believe, some basis upon which to do it. When they say themselves that their database is too small, when Dr. Budowle says he attends a conference with -- I think it was Bandelt, and he presents a paper or a presentation, whatever the format was, and they criticize the forensic community for this what he calls an artificial construct, I think, or somehow setting up barriers to these other databases, when there's obviously nothing sacrosanct about the FBI's database. We know for a fact that, when I asked Dr. Fisher is it entirely possible that somebody can self-report as a Caucasian when they're Hispanic, they can self-report as an African-American when they're not or vice-versa. So it's not as if anybody is checking these things, that there's some kind of a higher threshold from the FBI database. Dr. Fisher was quite candid, out of the seven contributing laboratories, there's only two that she's ever been to, and that's the FBI and the Armed Forces. She hasn't even been to the other ones. The problem is, they then set up, in addition to that, this idea that, well, we're only going to count -- Mr. Harris' counting method -- zero base pair difference and I'm still sitting here trying to figure out what an exclusion versus an inconclusive versus an inclusion is. Where I come from, when you open up the dictionary, it's a two-sided coin. It isn't a three-sided. You don't have a situation where something is either excluded, inconclusive or included. It's either included or excluded. If it's included, meaning zero base pair differences and one base pair difference, then it has to -- by definition, and Dr. Budowle admitted this, it was not the most conservative estimate to the defendant. I would also submit -- and I apologize because I did not do this. But I believe in many of the other jurisdictions where mitochondrial DNA has been admitted that specifically Dr. Shields' interpretation of the statistics has been adopted in those jurisdictions; and if the Court wants, over the weekend I will find that. But I do not believe it is the case where -- in several jurisdictions where, if mitochondrial is let in, that the FBI is allowed to report it in the way that it does. There are, I think obvious, inherent limitations, and I think built in and I can't imagine that the People would want evidence that comes in and starts talking about upper-bound 95 percent confidence rates in a capital murder case. I mean, to me, that's just mind-boggling. There are rules. You don't decide cases by lot, CALJIC Instructions, by chance; and to some degree, that's what the People are inviting here. The People are asking you decide this case by chance. You know, eventually maybe some defendant ten years from now, we might get to a 99 percent rate. We might refine it at some point. But for right now we're at 95 percent, and we don't have all the sequences sequenced, and we don't know if the self-reporting is accurate. I mean, that's a -- to me, that presents an immense problem. As the Court indicated, I think the Caucasian subgroup was something like 1,633 or some such number.

JUDGE: 1,833.

GERAGOS: Was it 18? And if you have 1,800 and we don't know how many of those may be Caucasian, may be reporting what their father's is versus their mother's, or maybe their parents got divorced and they don't like the father so they report what the mother is, or they were raised by an uncle who happens to be of a different lineage and they consider themselves -- I mean, there is no way you can have, I think, a confidence that 1,800 some odd people in a population database is going to be accurate and then say, well, do what Dr. Budowle does is say, oh, we've got a confidence rate and it's 95 percent. And give her her due, Dr. Fisher, at least was quite, I thought, honest when pressed that, of course, she wants a bigger database and that this is too small, and that there has been changes in refinements in their thinking as this has evolved. The fact -- the very fact that the advent of heteroplasmy caused them to change from two base pair difference -- one base pair difference to two base pair differences and what is inclusion and exclusion, I think speaks volumes here. This is in the infancy, the embryonic stage -- no pun intended -- of this science. So if the Court is going to find that mitochondrial DNA meets the Kelly prongs for forensic use in a courtroom, then I think the most that the Court could do is to do something similar to what this criminalist did today with the microscopic comparisons. I think that that's about as far as one could go. He was saying, basically, I'm saying that it's in a range or it's not being excluded. Ultimately, I think at the end of the day I think that's all Dr. Fisher felt comfortable with. She -- I said, you know, this is not something that's identity. I forget where the quote was. I had it in my little cheat sheets here. But I asked her a question about, you're not saying that this is identity or you're not saying that this is a match? She says, oh, no. I said, did you read the papers this morning? She said, I hadn't had time, or something to that effect. Because there is this idea that, if you let it in and start talking about these frequencies, that what jurors are going to do is immediately associate mitochondrial DNA with nuclear DNA, and instead of getting 13 markers versus one marker, and people understand that, we're going to start talking identity when that's not what it is. All it really is as a tool, I think, is an exclusionary science. You can say something is excluded. And that really has only evolved in -- what? -- the last four years I guess since the '98 changes in the protocol. But the idea that we would get to 1 in 122 by creating or crafting, I guess, this other category of inconclusive one base pair differences to me is just such an artificial construct that how somebody can say we're giving the defendant the benefit of the doubt, but at the same time we're not counting the population that's not excluded, it makes no logical sense. I don't think from a legal standpoint it is correct. There may be a scientific basis for why they do it that way. They believe they're being cautious. But certainly from a legal standpoint, it doesn't make any sense in a courtroom. In a courtroom, as I said before, the tie goes to the runner, the defendant. You don't have a situation where you construct this third plane or virtual reality out there, and all of a sudden, basically what they've done is they've made inconclusives into exclusions, because if you don't count those inconclusives, then, in essence, you've just banished them to the exclusive or the exclusion population. And so based upon that and what the Court's tentative is -- I won't get into or belabor what I consider to be the problem with the heteroplasmy and the contamination. The Court listened to this and was abundantly patient with us for days and hours and hours on end. And if the Court has reached its decision on the Kelly, I would just encourage the Court to, once again, as I'm sure it already has, take a look at what some of the other jurisdictions did, because they don't let, I don't believe, the FBI come in and report the way that they're doing; and, even if some jurisdictions do, I think that's a significant problem when you're talking about relatively low confidence levels. You could never, I don't think -- I think this Court would sustain an objection if somebody got up there and starts talking about I'm 95 percent sure about this or that when talking about some kind of mixing and matching. When Mr. Harris talks about mixing apples and oranges, that's what we're doing. We're mixing the idea of identity from nuclear DNA with the matching, if you will, of mitochondrial, which is really exclusionary. So based upon that, I'd encourage the Court to follow its tentative and basically allow them to maybe render an opinion as to exclusion or the nonmatching of the sequences and leave it at that.

JUDGE: One of the problems I see in doing that -- and I can't recall which case it was, and I think it was more than one case. I think it was out of New York where the expert only opined that the person could not be excluded or something like that without giving a percentage, and the Supreme Court came back and said you have to give a percentage. That's the impression I got from that case. Any comments on that?

GERAGOS: Well, I think, if you have to give a percentage, then I think what you have to do is -- if the -- I don't think the reasoning that, if I remember the case, and I think it's the one that Mr. Harris was referring to. I believe that all they were doing is trying to give the defendant the benefit of the doubt, so to speak. So if you're going to give a percentage, I think you have to err on the side of caution, and that's to include everything that's not excluded, which would be the Shields method as opposed to -- I don't even know I would call it the Budowle method, because that seems to be in a state of flux. But Dr. Shields did present a numbering system that I think fairly takes into account what isn't excluded; and if it isn't excluded, then it has to be within the world or the population of possibilities. I don't know that, given what mitochondrial DNA is, and that decision that the Court's talking about, I don't believe that there was as much testimony elicited regarding the problems with the database as we had here. I believe that was a rather truncated hearing and that the focus was more on the science of it, if you will, rather than the reporting of it; and if that's the case, I think Dr. Shields put it accurately when he said, in fact, "The statistical --" this was at page 555. "The statistical side of things has changed even more than the interpretation." And that really is, I think, the evolving. The fact that they -- as the Court knows from the testimony here, they've changed from the one base pair difference or zero base pair difference to two base pair difference before they make an exclusion. That I think gives the Court a sufficient basis upon which to say, look, we're not comfortable reporting this in percentages; we're just going to use it as an exclusion.

JUDGE: Any comments in response, Mr. Harris?

D. HARRIS: Yes, very briefly. I think if the Court really goes back and looks at the Pappas case, I think the Court will see this as deja vu. Dr. Shields testified. The Court can go through it and look where he says FBI shouldn't be using this; it's not good; it's not acceptable; and the statistics are bad. The Court goes through, and one of the arguments that came about was, this whole point of trying to apply the problems of all these statistics and frequencies that happened with nuclear DNA for years and years and years; and they go through and they talk about the NRC report and they cite to the Federal -- Federal Judicial Center's guidelines on what the Federal Courts are doing. So in this particular case they went and looked at it and specifically said: "The counting method is not preferred for calculating random match probabilities for nuclear DNA, because nuclear DNA has multiple low sides that may be analyzed separately." They site to the committee report number 2. That's the second NRC report. They go on further to say: "Because mitochondrial DNA consists of only one marker or locus, that critique of the counting method does not apply to mitochondrial DNA." So they go through and they talk about the same thing we're talking about here. Counting method, okay, everybody agrees with that. You take the number; you apply it to the database. Then they go through and they specifically talk about a confidence interval. All it is is something that describes the uncertainty because of the size of the database. That's basic statistics. So, again, if we stop mixing the apples and oranges like it's being said that we do, and we talk about the database separate from what's being reported out to the counting method, even Dr. Shields can't complain about that. He tries to by saying, well, inclusion/exclusion. Dr. Budowle explained that quite well. If you cannot tell, you cannot include someone and you cannot exclude someone. So that I don't think there can be a debate there, because Dr. Shields all he was saying was, well, I would do it different. No one else agrees with him. There is no evidence before the Court that anyone agrees with Dr. Shields. Dr. Budowle, Dr. Fisher said this is how it's done. All of the cases that we've cited that are FBI cases and several of them dealing with hairs say this is how it's done, this calculation based on the counting method of either exclusion, inconclusive or inclusion. So if you just do the exact match and you report it out that way, even Dr. Shields would be forced to admit he has to report it out exactly like Dr. Fisher does. So, again, that's not an issue. Then it becomes, if you apply this confidence interval or the frequencies to it, what applies. That's basic statistics. It gets back to not having the Kelly prong. What I would suggest to the Court is that's really more of a weight versus admissibility. As Venegas and some of the other cases that I pointed out to in our points and authorities, Fiero, what they point out to is, if it's something that the jury can understand or something the defense can put on an expert to counter, that's for the jury to decide. That's -- it's a trier of fact issue, whether they want to accept that as being within the realm of that frequency; whether they want to believe that Bell curve should be bigger at 99 percent, like Shields says, or 95, like Budowle and Fisher say and everybody else in the scientific community. So under the circumstances, there again, you really get back down to it of it just being Dr. Shields. And in the Pappas case which the Court's had, Dr. Shields testified to this and lost in Connecticut, and he's been losing over and over on that particular point. At some point in time, the Court has to say, there isn't a debate here, there isn't an issue here. The FBI says that they're reporting it out as conservative as they can within the realm of not making stuff up like let's throw things in there, if we take this out and we take this out and we take this out, would you have an exclusion? Hypotheticals are not science. The two experts from the FBI gave the Court enough to find way beyond a preponderance of the evidence that it is admissible beyond any objection. The counting method is appropriate. As the Allen case says, one witness in an out-of-court -- out-of-state court case is sufficient for the Court to meet the Kelly/Frye prong; and we think that that's been done here, and I'm kind of beating a dead horse here at this point in time. We'd submit it to the Court.

JUDGE: I have less difficulty with the experts stating 1 out of every 112 Caucasians would be expected to have that sequence, and that's what the expert testified in this case. But when they start gives a confidence level of 95 percent, doesn't that sort of give some overemphasis of that position to the trier of fact? In other words, even in a medical malpractice case, all the doctor can say is within a reasonable medical certainty. They're not going to say I'm 99 percent sure, I'm a hundred percent positive. That's usually not allowed. I realize these other states have allowed that, allowed the confidence level. But what troubles me still is that confidence level is a small database: 1,833. And being able to state 1 out of every 112, but then when that expert backs it up with a confidence level of 95, that's where I have the difficulty. I realize that's what they've done in other states, but maybe you can sway me on that, too.

D. HARRIS: Well, as to that particular point, again, the confidence interval was not something that Dr. Shields was complaining about either. If you really get down to what he really did ultimately admit or testify to, he's not saying there's a problem with using confidence intervals. The formula that was given to the Court by Dr. Fisher, how it was explained by Dr. Shields, under those circumstances, they both admitted that that's basic statistics. So what you do is you apply something and say this is the realm of possibility of it being there and it being accurate. It's not saying that it is. It's just a statistical probability. And that, again, is the argument that we're making that it should go to weight, instead of the admissibility fact, because that's something that they can bring in Dr. Shields and they can explain to the jury, we think it should be 99 percent to be more conservative. Not saying that nobody can give any statistics. And if the Court wants to analogize this to some other point, this has been done for years when it does come to blood markers. Somebody will come in and say 30 percent of the population has a blood type or this blood type. Courts have been letting that in forever, because that's something that the jury can understand. I think the jury -- we have to give them credit, and I think that they can understand basic statistics when it's given to them in somewhat of a less dry, scientific format than we're doing here for a Kelly hearing; and I think both Fisher and Shields have shown that they're both more than capable of doing bad Power Point presentations and putting little things up there trying to explain it for the jury. That's why I think that's a weight versus admissibility.

JUDGE: One last question, though, one thing that Dr. Fisher testified to also covered that 1 out of every 159 Hispanics would have that sequence. Now, is that relevant to our case? Why should I even consider that?

D. HARRIS: I think it has to be considered, because when you look at the cases and you look at what the Dr. Budowle and Dr. Fisher and Dr. Shields were talking about, you want to give the range, so the jury can determine -- I think -- I don't recall which expert it was at this point in time, to be honest. But one of them specifically said we don't know what the makeup of Modesto is. That's up for the jury to decide, for them to establish or use their common sense to apply what they know of the community against what that database might be. So if you report all of the databases, that's something that's, again, for the trier of fact, and I think that's a reasonable argument from the experts.

JUDGE: Shouldn't the database represent who your target is, in this case, the defendant or Laci Peterson, which we know are Caucasian?

D. HARRIS: Well, the database that -- if you're talking about the entire database or just talking about the Caucasian group?

JUDGE: I'm saying, why should we even consider the Hispanic number?

D. HARRIS: Again, I think it's probably because, as the experts were talking about, Mr. Geragos has been arguing, that you have the issue of, well, are there outliers, the term that Dr. Fisher used, so you want to give that range of probabilities; and there's not a significant number of difference, so there's nothing that's going to be -- like the old problems with NRC 1 and NRC 2, dealing with product rule calculations. This, again, is a straightforward computation. It shows up in the database, if we make it down in into the major subgroups this many times, the jury can make that determination and look at the individuals and say, this is what their classification is, this is the number that we're going to use.

JUDGE: Since I covered a couple new areas, Mr. Geragos, I'll have you have the last say.

GERAGOS: Thank you, Your Honor. I was going to pick up on, if I could, the first thing that Mr. Harris addressed in response to your question, and I think that's precisely the kind of hidden or Trojan horse problem with doing what they -- the prosecution proposes to do. You have a criminal case beyond a reasonable doubt standard. You have -- you start talking about upper-bound confidence rates of 95 percent. You start talking about, you know, Shield -- not Shields, but Budowle's answer is in response to currently the FBI currently does not provide frequency estimates. He says, "We only give an upper bound of how high it could be with confidence, not what the actual frequency is." That's where -- kind of the essence of what the problem is. To allow somebody to come in here, start talking about 1 in 112 with a 95 percent confidence rate in a criminal case, I don't believe would pass muster, especially in a capital case. The problem that you have is all of the experts agree that they want larger databases. Dr. Fisher specifically said, when pressed on it, that we don't even know -- I mean, we've got basically geographic regions which are contributing the samples. I agree with Mr. Harris, with the blood marker stuff, you have -- I mean, think of the -- the last time I did one of those cases, I think somebody estimated that there was 10 million blood samples that have been looked at or something of that nature across the country, in hospitals and all other settings. That isn't the situation here. Here we have selected samples from certain geographical regions that have been entered into a database that Dr. Fisher concedes is woefully small and not expanding large enough; and they want to say let's just throw it up and let a jury decide what Modesto looks like. To me, that's mind-boggling. The only thing that they should be able to do, I think if the Court has found that the Kelly prongs has been met, is to use this as an exclusionary science device. Certainly this science has not evolved to the point where the blood markers have, not even close. This is a science, as I said before, that's in its infancy in terms of the database for sure; and there's certainly -- and I think post the New York decision that the Court cited has been Bandelt's criticism, and that in and of itself can give this Court pause before allowing anybody to deal or base this on the database. Certainly the idea that Budowle came in here and says that he's attempting to get the method, algorithm method that Bandelt has devised, and certainly because he does not dispute that Bandelt is one of the foremost people in the field and that Bandelt is criticizing the current databases, that basis alone takes you outside of the New York Supreme Court reasoning. I would urge the Court, if it's going to say that the prongs have been satisfied, to leave it at that on an exclusionary basis, because otherwise we're really talking about just pure guesswork.

JUDGE: I'll take the matter under submission. Rule --

D. HARRIS: Your Honor, could I just respond to that? I'll try to be brief.

JUDGE: It's your burden, so, briefly, you can.

D. HARRIS: All right. I think counsel's misstatement -- or statement is a misstatement, in that Dr. Shields also said that you need to report out the frequency, and he said that he was glad to see that Dr. Fisher had done what she had done. So there isn't a dispute there, even with the defense's own expert, how it was done in this particular case. The database is not the statistics. Counsel keeps coming back to the database saying, well, we don't know about this and we don't know about that. There is no dispute in the scientific or forensic scientific community about the size of the database. The issue that the Court's asking about is the statistics based on the size of that. When the Court goes through all of these cases and sees that this is what Dr. Shields has raised before, the Court will come back to the same place that the FBI's way of doing this is conservative. So you have the one out of whatever number. You have a frequency interval to say how reliable that is. That's something that jurors can understand. Then the only issue becomes: Do they get to put on an expert that says it should be 99 percent instead of 95 percent? And I'll submit it with that.

JUDGE: See you Monday morning at 9:30.

GERAGOS: Thank you, Your Honor.

JUDGE: Defendant's remanded. Do you have who you're calling?

DISTASO: The pathologist, Your Honor.

JUDGE: Is that it?

DISTASO: What?

JUDGE: Is that it?

DISTASO: Well, I asked Mr. Geragos, and he said he was going to --

GERAGOS: Spend a little bit of time.

DISTASO: -- spend a little bit of time. So I'll have some -- I'll have Detective Hendee ready to go in case we get there.

JUDGE: We'll start with the pathologist, then, after I make my ruling (Evening recess at 3:42 p.m.)

November 17

JUDGE: Call the matter of Peterson, Case Number 1056770. All parties are present. My ruling as far as the mitochondrial DNA is that it passes the Kelly test, that includes the statistical probability determination based on the Caucasian database. The Court will not consider the reference to the Hispanic database, as it's not relevant. I'm going to provide a written decision with findings and conclusions, and it will be -- it's being typed up presently. Ready to proceed with the next witness, Mr. Harris?