Free Reply to Response - District Court of Arizona - Arizona

USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 1 of 13

PATRICIA A. GITRE, P.L.C. ATTORNEY AT LAW 331 N. FIRST AVENUE SUITE 150 PHOENIX, ARIZONA 85003-4527
Patricia A. Gitre Katherine F. McLeod (Of Counsel)

Via email Keith Vercauteren Assistant U.S. Attorney Two Renaissance Square Suite 1200 40 N. Central Avenue Phoenix, AZ 85004-4408 Dear Keith: For ease of reference, I have included the defense requests dated 12/1/05, the government's response dated 12/19/05, and the defense replies dated 1/10/06 as well as additional requests by the defense. I am requesting immediate disclosure of all items requested. If I must go to DPS to obtain this information, please be informed that we intend to copy the information not just review it as suggested by Ms. Heath. Please arrange a mutually agreeable date and time this week to obtain the information requested below that has not been provided. If this will not be authorized, please let me know immediately which items (as listed below) that will not be disclosed and provide the reasons why so that I may seek disclosure of all information from the court.

Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 2 of 13

DEFENSE REQUEST 1. Case file: Please provide a complete copy of the case file including all records made by the laboratory in connection with this case, including reports and bench-notes pertaining to the description of items of evidence, presumptive testing, serology and all DNA testing. Please provide photographic or digital copies of all photographs and x-ray film copies of any x-ray films. GOVERNMENT'S RESPONSE 1. Case File - the case files have been electronically sent in a separate email. DEFENSE REPLY 1. On 12/21/05, the defense requested that all the files sent by email on 12/19/05 be put on a CD ROM and provided to the defense. Further, the files sent by email appear to be converted from MAC files to Window format and may be corrupted. We cannot open on a MAC which is the preferred method or re-convert these files. Sending this information by email can be lost corrupted, etc and I do not believe that I received all the information. To save time, I will arrange to come over to copy the data including the files original MAC format. Please let me know if we can do that this week. The defense also requests that all photographs be copies on photocopy paper as the black and white copies are of no use. The defense also requests legible copies of bate stamp pages 49, 50, 52, 77, 116, 118, 119, 145, 146, 149, 150, 152, 163, 164, 166, 167 (which contain graphs with sections that are unreadable). The defense has not received copies of any x-ray films. Please confirm that there are none or provide them.
Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 3 of 13

DEFENSE REQUEST 2. Laboratory Protocols: Please provide a copy of all standard operating protocols (SOPs) used in connection with the testing in this case including interpretation guidelines. To minimize any burden of duplicating these items, we invite you to provide them in electronic form. GOVERNMENT'S RESPONSE 2. Laboratory Protocols - the appropriate protocols are attached to this email. DEFENSE REPLY 2. Laboratory protocols were provided. However, five out of the seven the protocols provided are labeled "uncontrolled copy" and the Y-Filer Protocol is labeled "interim" as well as "uncontrolled copy". Please explain what this terminology means and whether there are additional protocols that are controlled and not interim. Please disclose whether the laboratory uses, including but not limited to additional final and/or controlled protocols, however titled. Also please provide a copy of the actual protocols used in this case including annotations. If the analysts in this case followed the protocols disclosed on December 19, 2005, please confirm. I do not want to find out at trial that different, subsequent, amended or final protocols were utilized in this case. DEFENSE REQUEST 3. Chain of custody and current disposition of evidence: Please provide copies of all records that document the treatment and handling of biological evidence in this case, from the initial point of collection up to the current disposition. This information should include documentation which indicates where and how the materials were stored (temperature and type of container), the amount of evidence material which was consumed in testing, the amount of material which remains, and where
Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 4 of 13

and how the remaining evidence is stored (temperature and type of container). GOVERNMENT'S RESPONSE 3. Chain of custody & current disposition of evidence - this information is contained within the case files.

DEFENSE REPLY 3. It appears that chain of custody is incomplete as to delivery of each item by MSCO to DPS and vice versa particular as to the buccal swabs obtained from Augustiniak and Kramer. Please provide MSCO chain of custody as follows: Receipt of each item of evidence from any individual by any custodian Date of Transport of each item of evidence to DPS Receipt of each item from DPS to MCSO or any other agency Any additional transfers of the same item to DPS over the course of this investigation. The defense specifically inquired as to whether there is any original biological evidence from sample #26. It appears to have been entirely consumed with authorization by Bob Schutz on 4/4/05 and it also appears that the original biological from the hair samples was also consumed with the authorization of Keith Vercauteran on 8/2/05. Please confirm or deny that the all original biological samples from #25 and #26 have been consumed.

Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 5 of 13

Please confirm the exact amount of DNA which was obtained from sample #26 (in nanograms) and the amount used for each STR and Y-STR test. Please provide the exact amount of unamplified extracted DNA which remains from sample #26. Please provide the exact amount of extracted DNA that was used for the hair testing in August, 2005. DEFENSE REQUEST 4. Software: Please provide a list of all commercial software programs used in the DNA testing in this case, including name of software program, manufacturer, and version used in this case. GOVERNMENT RESPONSE 4. Software ­ There were two different sets of software used during the DNA analysis of the evidence in this case. The DNA testing reported by Dawn Warnock on 6/7/05 partially used GeneScan v3.1 and GenoTyper v2.5, and partially used GeneMapper ID v3.2. All DNA testing reported by Dawn Warnock on 8/10/05 used GeneMapper ID v3.2. All DNA tested performed by Lorraine Heath used GeneMapper ID v3.2. All the above listed software is manufactured by Applied Biosystems. DEFENSE REPLY 4. None DEFENSE REQUEST 5. Data files: Please provide copies of all data files created in the course of performing the testing and interpreting the data in this case. These files should include all data necessary to, (i) independently reanalyze the raw electronic data and (ii) reconstruct the interpretation performed in this case. In the event that any data file which was created in the course of performing the testing and interpreting the data in this case is not
Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 6 of 13

provided in discovery please identify the file by name, file type, and provide an explanation for non-production of the file. GOVERNMENT RESPONSE 5. Data Files - the electronic data for all the DNA testing performed in this case by Lorraine Heath (in the form of ABI 310 sample files) will be sent in additional emails (one for each ABI 310 Run). The electronic data from the DNA testing reported by Dawn Warnock on 8/10/05 will also be sent in a separate email. The electronic data for most of the DNA testing reported by Dawn Warnock on 6/7/05 was produced on the older Macintosh-based DNA analysis software that is no longer used by DPS. The data is archived (on CD), but our Macintosh computer used for retrieval and copying of this archived data is currently out of commission. Therefore, this data cannot be provided at this time, however it is available for examination in the laboratory (by appointment) if a laptop computer with the appropriate DNA analysis software (GeneScan & Genotyper) is provided. The unavailable data is from the ABI 310 runs on 4/13/05, 5/5/05, and 5/10/05 mentioned in Dawn Warnock's case notes associated with the report dated 6/7/05. The data from the ABI 310 run on 5/24/05 (also associated with Dawn Warnock's 6/7/05 report) will be sent in a separate email. DEFENSE REPLY 5. Please arrange a time this week for copying at the lab.

Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 7 of 13

DEFENSE REQUEST 6. Population Database: Please provide copies of any population database or allelic frequency tables relied upon in making statistical estimates in this case. If the laboratory relied upon published or publicly available data, this request can be satisfied by providing a specific reference to the source. GOVERNMENT RESPONSE 6. The population database used to calculate the Y-STR statistics reported by Lorraine Heath on 5/28/05 is publically available at http://www.appliedbiosystems.com/yfilerdatabase/. DEFENSE REPLY 6. None DEFENSE REQUEST 7. Documentation of DAB Standard 14: According to the DNA Advisory Board Quality Assurance Standards for Forensic DNA Testing Laboratories, Standard 14, Forensic DNA laboratories must "follow procedures for corrective action whenever proficiency testing discrepancies and/or casework errors are detected" and "shall maintain documentation for the corrective action." Please provide a copy of all documentation of corrective actions maintained by the laboratory that performed DNA testing in this case. If the laboratory does not comply with the DAB requirement that it maintain this documentation, it is sufficient to respond: "The laboratory does not comply with the DAB requirement that it document corrective actions."

Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 8 of 13

GOVERNMENT RESPONSE 7. Documentation of DAB Standard 14 - no corrective actions have been required as a result of any work performed by the two DNA analysts (Lorraine Heath & Dawn Warnock) involved with the analysis of this case. DEFENSE REPLY 7. The defense did not ask for corrective action as to these particular analysts. The defense requested the documentation of DAB Standard 14 for the entire lab. Please provide a copy of the corrective actions maintained by the lab for the entire lab. DEFENSE REQUEST 8. Accreditation: Please provide; 8.1 8.2 Copies of all licenses or other certificates of accreditation held by the DNA testing laboratory. Copies of documentation pertaining to accreditation including, all internal and external audits, communications and internal memos.

GOVERNMENT'S RESPONSE 8. Accreditation - A copy of the laboratory's accreditation certificates is attached to this email (request 8.1). All other documentation pertaining to accreditation (request 8.2) is available for review within the laboratory by appointment, but is not normally released during routine discovery requests.

Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 9 of 13

DEFENSE REPLY 8. The defense is requesting copies of pertaining to all accreditation. If it is necessary to go to the lab to obtain copies, the defense will do so but will expect to take a copy with them. If DPS is refusing to provide copies, please let us know. DEFENSE REQUEST 9. In-house Validation: Please provide copies of all validation research conducted by the Arizona Department of Public Safety Laboratory with regard to in-house (internal) validation of; 9.1 9.2 9.3 Quantifiler Y-filer Genemapper

GOVERNMENT'S RESPONSE 9. In-house Validation - all validation research information pertaining to Quantifiler, Y-Filer, and GeneMapper is available for review within the laboratory by appointment, but is not normally released during routine discovery requests. DEFENSE REPLY 9. Same as 8.

Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 10 of 13

DEFENSE REQUEST 10. Laboratory Personnel: Please provide background information about each person involved in conducting or reviewing the DNA testing performed in this case, including: 10.1 Current resume 10.2 Job description GOVERNMENT'S RESPONSE 10. Laboratory Personnel - the CVs for Dawn Warnock and Lorraine Heath are attached to this email. Job descriptions are contained within the protocols attached to this email. DEFENSE REPLY 10. The CV for Heath and Warnock were provided. Please provide the CVS for Eyring, Zinnamon and Guy. If there are other analysts that will be working on this case, please provide his/her CVS.

DEFENSE REQUEST 11. Proficiency Tests: For each analyst who performed, reviewed, or supervised the DNA testing in this case, please provide copies of all DNA proficiency tests using any of the DNA tests used in this case. These materials should include for each proficiency test; 11.1 11.2 11.3 11.4 The complete proficiency test file Computer data files Evaluations and/or reports by the testing agency records maintained pursuant to DAB Standard 13.
Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 11 of 13

GOVERNMENT'S RESPONSE 11. Proficiency Tests - a summary of the proficiency tests performed by Lorraine Heath and Dawn Warnock are attached to this email. The remaining requested files and documentation is available for review within the laboratory by appointment, but is not normally released during routine discovery requests. DEFENSE REPLY 11. The defense did not request a summary. See 8 and 9. ADDITIONAL REQUESTS BY THE DEFENSE Lorraine Heath stated in her email "[w]ith regards to the DNA standards for Garcia, Kramer, and Augustiniak, I understand that further mitochondrial DNA testing may be performed by our laboratory, therefore the standards should not be released until this additional testing is completed, to be sure sufficient material is present for this testing. When this testing is completed, the standards can be released to the original submitting agency upon request. As to the above statement, please inform and/or provide the following: 1) Which samples (by number) will be subject to further mitochondrial DNA testing 2) Provide all protocols for mitochondrial DNA testing 3) All validation research pertaining to mitochondrial DNA testing 4) All documentation pertaining to special precautions that are taken with regard to mitochondrial DNA testing 5) QA-QC manuals, memos, email (however the correspondence is received or titled) including but limited to guidelines for interpreting samples with contamination. 6) When these tests are to be performed and completed 7) The analyst(s) performing the mitochondrial DNA testing
Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 12 of 13

8) Whether the state or federal government has authorized that the original biological samples could be fully consumed and therefore, destroyed. Again, the defense reiterates its prior requests that a portion of the original biological samples of each tested items be made available for independent testing by the defense. The defense further requests IMMEDIATE disclosure of any information including reports, memos, letters, emails (however titled) related to contamination issues. This includes but is not limited to: 1) DPS Logs or laboratory history of contamination 2) Any documentation related to instances of contamination in general and specifically (i.e. contaminated tubes, contaminated reagents, reporting of contamination, corrective actions or policies or procedures) 3) List of DR reports in which contamination was found or suspected 4) Attachment to the June 6, 2005 memo (bate stamp 105) (24 files) including all reports, data, results of testing etc., from each of these individual files. The defense further requests IMMEDIATE disclosure of the following: 1) Additional collection of evidence including items for DNA testing or other testing from any source related to this case; 2) The chain of custody to and from MSCO or ATF to any other department or Laboratory; 3) Chain of custody to and from any agency for scientific analysis of any physical evidence in this case; and
Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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USA v Augustiniak CR03-1167-PHX-DGC 01/10/2006 Letter to Keith Vercauteran re: scientific testing etc. Page 13 of 13

4) All documents, photographs, notes, chain of custody and underlying data including but not limited to requested items as set forth in the defense 12/1/05 letter for any scientific testing. In addition to destruction of original biological evidence and non-disclosure to the defense, it appears that disclosure to the defense has been delayed all to the prejudice of the defense. The defense was not informed of the government's authorization to consume all samples despite the defense's repeated requests that samples would be preserved for independent DNA testing. Further, the DNA testing involving Augustiniak was completed on 6/21/05 but not disclosed until 8/12/05. The last disclosed analysis in this case was completed on 8/10/05 but not disclosed to the defense until 12/22/05. There is no apparent basis, legal or otherwise for the significant delay in disclosure. The defense requests that the government explain the authorizations for consumption and therefore, destruction of the samples and the lengthy delay in disclosure. In the future, the defense requests that 1) the defense be notified of any further DNA testing at least two weeks in advance of any testing; and 2) immediate notification and disclosure of any testing. Please provide all requested information by the end of this week as I have a motion deadline of 1/19/06. If this cannot be done, please let me know what date it will be disclosed. PATRICIA A. GITRE PLC /s/ Patricia A. Gitre
Cc: Enc: as stated

Telephone: 602-452-2918 Facsimile: 602-532-7950 [email protected]

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