2000 WL 34531728 (Tex.Dist.) (Trial Motion, Memorandum and Affidavit)

District Court of Texas.

Tarrant County

In Re Richard Wayne JONES, Jr,

and

Keith Donavan Jones, Petitioners.

No. 048-184376-00.

2000.

Petitioners’ memorandum to the court Regarding Dna Testing

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Petitioners in the above styled and numbered cause, and present the following memorandum at the request of the Court and would show as follows:

On November 3, 2000, this Court requested Petitioners to notify the Court of the evidence Petitioners desire to test, along with the testing that could be done and a prediction as to whether such testing could be done while at the same time leaving enough of the samples for further testing to be done by any potential defendants in any future lawsuit that may arise after the current proceedings. This Memorandum is an attempt to answer the Court’s questions to the best extent possible, given the information that is available about the evidence in the possession of the Respondents. All sources cited to in this Memorandum are attached. An index of the sources precedes the actual sources themselves.

This Memorandum proceeds through four parts. Part I gives a brief and simplified overview of the science behind DNA analysis and a description of the three types of analysis: RFLP, PCR and mtDNA. Part II gives a short history of DNA analysis in the forensic context from its birth in 1985 through its general acceptance in the courts today. Part III describes the amount of material required to perform each of the three types of DNA analysis. Part IV actually applies the information contained in Parts I through III to the evidence list prepared by the Fort Worth Police Department Crime Lab in 1986.

Part I: DNA Analysis Fundamentals

Deoxyribonucleic acid (DNA) is the chemical structure of chromosomes.1 Also called “Nuclear DNA,” it is made up of four different enzymes: adenine, thymine, guanine and cytosine. This form of DNA is found in any cell that contains a nucleus. DNA forms a double helix with the two strands connected to each other through the binding of the above enzymes (also called bases or nucleotides) running down the strand in a particular order. Only certain bases will bind to one another between strands. Adenine will only bind to thymine and vice versa. Guanine will only bind to cytosine and vice versa. Therefore, a double helix of DNA may look like this:

GGATGTACTGTCGATATCGG CCTACATGACAGCTATAGCC

Notice the repeating “G” sequence and “C” sequences at the end of the string. The genetic information between these double letters is called a “variable number tandem repeat” (VNTR). Each combination of letters between the two strands set out above is called a “base pair.” For instance, in the combination set out above:

GGATGTACTGTCGATATCGG

 

 

G

 

 

CCTACATGACAGCTATAGCC,

 

the combination

 

C

 

is a base pair.

 

Each person’s VNTRs will have a different number of base pairs. This fact forms the fundamental basis for DNA analysis and what has come to be called “DNA Fingerprinting.”

The vast majority of every human’s DNA is essentially the same. The researchers have been able, however, to map out several sections of the human genome (called, collectively, “alleles” or “loci”) where each person’s DNA is different.2 Once a sample is prepared, a chemical or radioactive “probe” is used, essentially, to determine differences in size between the VNTRs in the two specimens being examined at a particular locus. The chances of two people (who are not identical twins) having the same “size” of VNTRs at several different loci are infinitesimally small - often calculated as a chance in several millions or even billions. Therefore, if several probes are used, it can be determined whether or not the two samples are, for all practical purposes, from the same source.

In the language of DNA analysis, however, when two specimens appear to be from the same source, it is said that the person cannot be excluded from the population of people who have this particular DNA profile. Technically this is not the same as saying that this is that person’s DNA. However, when the statistical population to which the suspected donor belongs becomes approximately ten or so people on the face of the entire planet, the practical effect is basically the same. One implication inherent in this manner of stating results is that if there is error, it can only apply to inclusion, not exclusion. If a person is excluded on any locus, he is excluded, period. If he cannot be excluded after testing at several loci, there is always a possibility (although perhaps not a statistically significant one) that if one more locus was found and tested, that he could be excluded. It is the ability of the particular type of DNA analysis to exclude (differentiate between different donors’ DNA) that determines the “accuracy” of that type of DNA analysis.

The oldest type of DNA analysis is Restriction Fragment Length Polymorphism (RFLP).3 RFLP DNA analysis uses what is called the “Southern Blot” method for preparing the final, readable result, an “autoradiograph” or “autorad.”4 This resembles a small piece of x-ray film that can be read with the unaided eye. The advantages of RFLP as compared with other forms of DNA analysis is that it is probably (or at this point, possibly) the most accurate.5 The disadvantages are that it is slow - sometimes taking up to six weeks. It also requires a “good” sample, meaning that it cannot have degraded through, for instance, excessive drying, heating, or improper storage.6 It also requires a fairly large sample (relatively speaking) to be successful -although in the world of DNA, a drop of wet blood is a large sample, clearly enough for RFLP analysis.

The next form of DNA analysis to appear, Polymerase Chain Reaction (PCR), is distinct as much as a method for chemically replicating DNA material as it is a stand-alone method of analysis. Because it can replicate DNA material, analysis may be done on samples that would be far too small for RFLP. There is no Southern Blot - the analysis is done through machines, tiny tubes and lasers and plotted with dots on paper, graphs or charts. Otherwise, the concept is the same. Certain known loci are examined (probed) and differentiated by the relative size of VNTRs.7 The advantages of PCR are not only that it can be done on samples that are much smaller than that required for RFLP, but it can also be done on samples that are too degraded for successful RFLP analysis.8 Another advantage is that it is much faster than RFLP because the Southern Blot is not used, and it can be automated through the use of a computer.9 The major disadvantage has been that it is not as accurate as RFLP (meaning that it can fail to exclude somebody where they would be excluded using a sufficient RFLP analysis). The technology of PCR, however, has improved to the point where the accuracy of PCR can approach or equal that of RFLP when a lab does additional testing of different loci after an initial test fails to exclude.10

The newest form of DNA analysis explores the individual sequences in the mitochondria of cells. Mitochondrial DNA analysis (mtDNA) was also made possible by the technology of PCR. Unlike the other forms of DNA analysis, mtDNA does not depend upon the presence of cells that possess a nucleus. While not all cells possess a nucleus, all cells possess mitochondria, which serve as the energy centers for the cell.11 In addition, each cell possesses multiple mitochondria, each of which contains mitochondrial DNA.12 Mitochondrial DNA is not the same as nuclear DNA. Nonetheless, certain loci have been mapped and are used for mtDNA analysis under essentially the same basic theory as described above.13

The advantages of mtDNA are numerous. Through its use, a DNA analysis may be conducted on bones or teeth that are even hundreds of years old. MtDNA analysis can also be conducted on material such as hair, which itself does not contain nuclear DNA (only the root of a strand of hair may be tested for nuclear DNA).14 MtDNA analysis can also be used to test the skin cells left in fingerprints, on clothing or in cars.15 The possible applications are nearly endless. One disadvantage of mtDNA analysis is that, because it is PCR, it can suffer some of the same inaccuracies inherent in that technology (false “failure to exclude” results). Like nuclear PCR DNA analysis, however, as the number of discovered loci increases, these problems will decrease (at this time, only two loci are used in mtDNA analysis, with two others being isolated at present).16 Also, unlike nuclear DNA, which comes from both sides of one’s parentage, mitochondrial DNA all comes from one’s maternal parentage. Therefore, the suspect’s mother may have the same mtDNA “match” as her son. Additionally, a portion of the population appears to carry more than one type of mtDNA in their cells (called “heteroplasmy”). The problem of heteroplasmy will also diminish in the very near future as more loci are isolated and the testing technology improves.17

Part II: The Forensic DNA Timeline

British Professor Sir Alec Jeffreys first reported the possibility of using “DNA Fingerprinting” in the forensic context in 1985.18 The first time DNA testing was used in a criminal investigation was in Britain in 1986-87 to solve two seemingly connected rape-murders.19 DNA was first introduced in the courts of the United States within several months of its first use in the U.K.20 PCR analysis was first used in a United States court in 1986.21 By 1996, DNA was admitted into criminal proceedings without question in 43 states.22 Mitochondrial DNA was first used in a criminal trial in the United States in 1996.23

The first reported case in Texas where RFLP DNA was used was Glover v. State.24 The Glover court did not address squarely the scientific basis of DNA, but merely observed that at that time it was “generally accepted” in the scientific community and in other states.25 Trimboli v. State26 marked the first time that PCR was mentioned in a published Texas case. In Trimboli, both RFLP and PCR were used in the trial.27 Trimboli presented a fairly exhaustive discussion of the science of DNA within the framework of the rules of evidence addressing the admission of scientific evidence.28

The Court of Criminal Appeals expressly adopted such an analysis in Kelly v. State29 (the test for admissibility of scientific evidence that the United States Supreme Court would adopt a year later in Daubert v. Merrell Dow Pharmaceuticals, Inc.30). In the process, the court gave its official stamp of approval to the RFLP method of DNA analysis.31 Two months after it handed down Kelly, the Court of Criminal Appeals affirmed Trimboli, however it did so without getting into the science of the PCR method of DNA analysis.32 Nonetheless, Trimboli does implicitly for PCR what Kelly did explicitly for RFLP - there is not a question that if either is done correctly and properly supported by expert testimony that it will be admissible in trial. Both methods, in fact, are now used routinely in the courts of Texas.

The newest method of DNA analysis, mtDNA, has only been mentioned in one published opinion, Ex Parte McGinn.33 Ricky McGinn sought a successive writ of habeas corpus for the purpose of conducting testing on certain biological samples through the use of mtDNA analysis.34 The court did not examine the science of mtDNA at all, except to observe that it has been in existence since 1996, which was used as the basis for denying McGinn’s subsequent writ (he had filed his first writ in September of 1997).35 As the Court may be aware, Governor Bush subsequently granted McGinn a temporary reprieve and mtDNA testing was conducted, which again confirmed that McGinn was the killer.36

Part III: How Much of a Sample Is Required For Testing?

How large a sample is necessary for DNA testing depends upon the type of testing that is desired.

RFLP Analysis:

RFLP is the most demanding DNA test sample-wise. To successfully conduct an RFLP analysis, a sample must generally be at least large enough to contain 100,000 cells or more (a saturated blood stain the size of a dime or larger or a drop of liquid blood) and cannot be degraded (must be fairly fresh or preserved).37

PCR:

Because PCR involves chemical amplification of the sample, the required sample size for testing is dramatically smaller than that required for RFLP.38 A successful PCR test may be conducted on a sample containing 50 to 100 cells.39 PCR testing may also be performed on samples that have degraded, such as old samples or those that have been improperly stored.40 A PCR nuclear DNA test may be performed on a visible dot of blood or a single hair root.41

MtDNA Analysis:

As stated above, while not all cells have a nucleus, all cells do have multiple mitochondria.42 Theoretically, therefore, it would be possible to conduct several DNA tests on a single cell. In fact, mitochondrial DNA (and sometimes even nuclear DNA) are being found in fingerprints, sweat stains, and clothing.43 Speaking at a conference earlier this year, one expert who conducts mtDNA analysis stated, “Occasionally, we’ll do a degraded stain, but what we’re finding with stains is that he have such a sensitive assay, mitochondrial is about ten to a hundred times more sensitive than nuclear DNA typing, so with degraded stains, we will recover not only the type of stain itself, but the type of anyone who has handled the fabric prior to the stain being there.”44

Two recent cases in Texas illustrate how small a sample can be for multiple DNA tests to be possible using mtDNA analysis. In the case of Ricky McGinn, a single pubic hair was tested by three separate labs - DPS, FBI and a defense chosen lab.45 In the case of Roy Criner, a single cigarette butt was tested by two separate labs.46

IV: The Samples in This Case and The Proposed Testing

To an extent, Petitioner is limited in providing the Court with exact information regarding the potential testing that could be done to the samples in this case because that is partially the point of deposing the custodians and getting access to the samples. We will not truly know what is possessed, the source from which it came, and what is testable until we get to the samples and see the chain of custody sheets. However, we do have an evidence list that was prepared by the Fort Worth Police Department on March 19, 1986, and which is attached hereto at Tab 16 for the Court’s convenience. Other lists of evidence are contained in the document entitled “Stipulation As To Authenticity And Admissibility Of Evidence Lists,” which was filed in this Court on September 21, 2000. We will go down the list in turn describing, hypothetically, what testing could be done and how much of the sample would be left for re-testing.

LIST OF EVIDENCE:

Received at Crime Scene 4600 Randol Mill Road from R. Corder by Shumway 2-20-86:

1-3. Sealed envelopes containing blood samples.

Blood samples may be tested using any of the above-referenced methods of DNA analysis. Assuming that the blood is in vials and properly stored, even RFLP testing could be conducted. If not, PCR and/or mtDNA could be done, leaving enough to be tested many more times.

4-5. Sealed envelopes containing leaves with blood.

These blood stains would probably be degraded, thus not permitting RFLP analysis. However, PCR and mtDNA analysis would be easily accomplished. Again, from the description on the evidence sheet, there would be enough substance to test many times.

6. Sealed sack containing white bra.

Through mtDNA analysis, the bra could be tested for DNA left by anyone who touched the bra. Mitochondrial DNA analysis requires such a small specimen that the bra would no doubt have enough genetic material on it to test many times.

Collected at 4600 Randol Mill Road by Shumway 2-20-86:

7. Envelope containing glass fragments with blood.

8-9. Metal containers with plant material with blood.

10. Sack with pieces of blood stained wood.

11. Sack with plaint material with possible body fluids.

12. Metal container with bloodstained grass.

These blood and possible body fluid stains would probably be degraded, thus not permitting RFLP analysis. However, PCR and mtDNA analysis would be easily accomplished. Again, from the description on the evidence sheet, there would be enough substance to test many times.

Received from D. McMillan, Medical Examiner’s officer 2-20-86, 2:05 p.m. by Shumway:

13. Sealed sexual assault death kit containing:

A. Blood sample.

B. Scalp hair sample.

C, D, E. Vaginal, anal and oral smears.

F, G, H. Vaginal, anal and oral swabs (perianal).

There would obviously be enough material in these samples to test many, many times. In addition, the technology did not exist in 1986 to test these specimens the way they could be tested today. The technology of the day could only test for the presence or absence of semen.47 Today, through mtDNA analysis, the swabs could be tested to see if an attacker left epithelial cells that had been sloughed off from his skin.

Received in lab 2-24-86, 10:40 a.m. from G. Penry by Shumway:

14. Plastic envelope with a check number 467 on Gill Savings.

This check was examined for identifiable fingerprints. Today, it could be tested by mtDNA for epithelial cells deposited by a person handling it whether the actual fingerprints are identifiable or not. Presumably, there would be enough genetic material, if it exists at all, to be tested multiple times through the use of mtDNA analysis.

Received in Property Room 2-24-86, 10:40 a.m. from G. Penry by Shumway:

15. Sealed sack containing a pair of boots (submitted by L. Steffler).

16. Sealed sack (submitted by W.D. Bundy) containing:

A. Sair of jeans.

B. Sealed sack with a brown plaid shirt.

These clothes had blood stains on them. The lab did ABO and antigen testing and in two cases found that the quantity of blood was “insufficient for further analysis.”48 Through PCR and mtDNA analysis, further more conclusive testing could be done on these items and multiple testing would easily be possible.

18. Sealed sack containing:

A. Plastic petri dish with fabric from complainant’s wrist.

B-C. Plastic petri dishes with fabric fragments.

D. Envelope with possible shoe fragments.

E. Envelope with a hair sample.

F-H. Sacks with shoe fragments.

There was no analysis whatsoever conducted on these items.49 The hair sample could be tested using mtDNA with multiple testing capability. As described above, in Ricky McGinn’s case a single pubic hair was mtDNA tested by three separate labs.

21. Sealed package containing two blankets.

Again, there was no analysis done on these items at the time.50 Blankets can be a depository for anything from hair and skin cells to microscopic quantities of blood, any of which lends itself to multiple mtDNA analyses.

22. Sealed sack containing:

A. Eight cigarette butts.

B. Plastic bag with assorted trash.

C. Plastic envelope with unknown stain.

D. Plastic bag with vacuumings.

E. Paper funnels.

Again, there was no analysis done on these items.51 It goes without saying that cigarette butts, no doubt completely irrelevant for scientific testing purposes in 1986, could be of vital importance today. As mentioned above, in Roy Crimer’s case a single cigarette butt was tested by two separate labs using mtDNA. Thus, there would be plenty of sample for multiple testing of these items.

23-29. Various items. The value of these items vis-a-vis DNA analysis is not immediately apparent. However, upon seeing the chain of custody documentation, this opinion could change. If so, mtDNA analysis and possibly PCR nuclear DNA analysis could be performed on material taken from any of these items in the manner described above with enough sample left for anyone who wanted to do additional testing.

30. Sealed sack containing:

A. Sealed envelope with two hairs.

B-D. Sealed envelopes with possible bloodstains.

There was no analysis done on 30A.52 On 30B through 30D, the only analysis that was conducted was to check for the presence of blood (usually done with the chemical “luminol”). Obviously, mtDNA and perhaps even nuclear PCR DNA analysis could be conducted on the bloodstains (assuming they are bloodstains). If they are, a bloodstain that is actually visible to the human eye can support many separate mtDNA analyses. Likewise, the hairs could support many mtDNA analyses.

31-36. Various items. The value of these items vis-a-vis DNA analysis is not immediately apparent. However, upon seeing the chain of custody documentation, this opinion could change. If so, mtDNA analysis and possibly PCR nuclear DNA analysis could be performed on material taken from any of these items in the manner described above with enough sample left for anyone who wanted to do additional testing.

Received in lab 2-26-86, 10:22 a.m. from L. Steffler by Shumway:

37. Gold covered (sic?) lock-blade knife.

Possible murder weapon. The analysis on this item was to test for the presence of blood. The result was, “Blood which could not be further characterized, was detected.”53 Those dried bloodstains could now not only be characterized, but typed through PCR or mtDNA analysis to essentially be linked to a specific person. In addition, any skin cells left by a person holding the knife could be typed through mtDNA analysis. Again, the knife could probably be subjected to several mtDNA analyses before all genetic material was “used up.”

Collected in the laboratory 2-27-86, 1:30 p.m. by Taylor:

38. Blood sample from Richard Wayne Jones.

39. Saliva sample from Richard Wayne Jones.

These samples were ABO and antigen tested.54 Presumably, the samples are still in existence and would provide plenty of material for any type of DNA analysis available and to be tested many times. Such testing would be necessary for purposes of elimination or inclusion in connection with the testing of the other items described above.

 

Appendix not available.

Footnotes

1

See “DNA 101 - What is it?,” attached hereto at Tab 1.

 

2

See NATIONAL INSTITUTE OF JUSTICE, AUTOMATED DNA TYPING: METHOD OF THE FUTURE? 2 (1997), attached hereto at Tab 2.

 

3

See generally NATIONAL INSTITUTE OF JUSTICE, THE UNREALIZED POTENTIAL OF DNA TESTING 7 (1998), attached hereto at Tab 3, (highlighted section entitled, “A Primer of DNA Testing Technology” gives a concise history of the sequence of DNA analysis developments from RFLP through the discovery and use of STRs).

 

4

See “DNA 101 - What is it?” at 4, attached hereto at Tab 1 (description of the “Southern Blot”).

 

5

See NATIONAL INSTITUTE OF JUSTICE, POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS 26-27 (1999), attached hereto at Tab 4.

 

6

See NATIONAL INSTITUTE OF JUSTICE, AUTOMATED DNA TYPING: METHOD OF THE FUTURE? (1997), attached hereto at Tab 2.

 

7

Another type of DNA analysis which was born of the PCR technology maps “Short Tandem Repeats” (STRs) rather than VNTRs. STRs are much shorter sequences (containing a significantly smaller number of base pairs) that come from different loci on the chromosomes. See NATIONAL INSTITUTE OF JUSTICE, POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS 27 (1999), attached hereto at Tab 4; NATIONAL INSTITUTE OF JUSTICE, AUTOMATED DNA TYPING: METHOD OF THE FUTURE? (1997), attached hereto at Tab 2.

 

8

See id.

 

9

See NATIONAL INSTITUTE OF JUSTICE, AUTOMATED DNA TYPING: METHOD OF THE FUTURE? (1997), attached hereto at Tab 2.

 

10

See id.

 

11

See “Mitochondrial DNA: State of Tennessee v. Paul Ware” at 2 (attached hereto at Tab 5).

 

12

See id. at 2-3.

 

13

See id.

 

14

See id.

 

15

See NATIONAL INSTITUTE OF JUSTICE, THE FIFTH ANNUAL CONFERENCE OF THE FUTURE OF DNA: IMPLICATIONS FOR THE CRIMINAL JUSTICE SYSTEM 529-30 (2000)(Testimony of Dr. Terry Melton), attached hereto at Tab 6.

 

16

See id. at 528.

 

17

See id. 533-34.

 

18

See NATIONAL INSTITUTE OF JUSTICE, POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS 26 (1999), attached hereto at Tab 4.

 

19

NATIONAL INSTITUTE OF JUSTICE, CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL 4 (1996), attached hereto at Tab 7.

 

20

See id. at 4-6.

 

21

See NATIONAL INSTITUTE OF JUSTICE, POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS 27 (1999), attached hereto at Tab 4.

 

22

See id. at 6.

 

23

See “Mitochondrial DNA: State of Tennessee v. Paul Ware,” attached hereto at Tab 5.

 

24

787 S.W.2d 544 (Tex. App. - Dallas 1990), aff’d, 825 S.W.2d 127 (Tex. Crim. App. 1992), attached hereto at Tab 8.

 

25

See id. at 547-48 (citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)).

 

26

817 S.W.2d 785 (Tex. App. - Waco 1991), aff’d, 826 S.W.2d 953 (Tex. Crim. App. 1992), attached hereto at Tab 9.

 

27

See id. at 786-94.

 

28

See id.

 

29

824 S.W.2d 568 (Tex. Crim. App. 1992), attached hereto at Tab 10.

 

30

113 S.Ct. 2786 (1993).

 

31

See Kelly, 824 S.W.2d at 574.

 

32

See Trimboli v. State, 826 S.W.2d 953, 954 (Tex. Crim. App. 1992), attached hereto at Tab 11.

 

33

____ S.W.3d ___, 2000 WL 763245, at *2 (Tex. Crim. App. June 14, 2000), attached hereto at Tab 12.

 

34

See id.

 

35

See id. at *2 & n.2. Under TEX. CODE CRIM. PRO. art. 11.071 § 5(a)(1), a subsequent writ may only be filed if it presents a factual or legal basis that could not have been raised at the time the initial writ is filed. Mitochondrial DNA was first used in a court in the United States in September 1996 in Tennessee v. Paul Ware (attached hereto at Tab 5).

 

36

See “DNA Cuts Both Ways: Genetic Tests Clear One Man, Bring Death Date for Another.” attached hereto at Tab 13.

 

37

See NATIONAL INSTITUTE OF JUSTICE, POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS 26 (1999), attached hereto at Tab 4.

 

38

See id. at 27.

 

39

See id.

 

40

See id.

 

41

See id.

 

42

See “Mitochondrial DNA: State of Tennessee v. Paul Ware” at 2, attached hereto at Tab 5.

 

43

See NATIONAL INSTITUTE OF JUSTICE, WHAT EVERY LAW ENFORCEMENT OFFICER SHOULD KNOW ABOUT DNA 2, attached hereto at Tab 14.

 

44

NATIONAL INSTITUTE OF JUSTICE, THE FIFTH ANNUAL CONFERENCE OF THE FUTURE OF DNA: IMPLICATIONS FOR THE CRIMINAL JUSTICE SYSTEM 529-30 (2000)(Testimony of Dr. Terry Melton), attached hereto at Tab 6.

 

45

See “DNA Cuts Both Ways: Genetic Tests Clear One Man, Bring Death Date for Another” attached hereto at Tab 13.

 

46

See “Frontline: The Case For Innocence, Four Cases” at 4-5, attached hereto at Tab 15.

 

47

See “RESULTS OF EXAMINATION” section on last page of list.

 

48

See id.

 

49

See id.

 

50

See id.

 

51

See id.

 

52

See id.

 

53

Id.

 

54

See id.

 

End of Document