Free Reply to Response - District Court of Arizona - Arizona

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PATRICIA A. GITRE, P.L.C (#011864) 331 N. 1st Avenue, Suite 150 Phoenix, Arizona 85003 Telephone: (602) 452-2918 Fax: (602) 532-7950 [email protected] Attorney for Kevin J. Augustiniak IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA,

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CR03-1167-PHX-DGC REPLY TO GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO PRECLUDE DNA TESTING (DKT. #1052) AND MOTION TO SUPPLEMENT UPON RECEIPT AND REVIEW OF FULL DISCOVERY (Oral Argument and Evidentiary Hearing Requested)

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

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Defendant, through counsel replies to the government's response to his Motion to Dismiss or Alternatively Preclude DNA (Dkt. 973). As of this date, Defendant has not received full disclosure from the government of requested evidence relevant to DPS testing conducted in this case. Defendant moves for an order allowing defendant to supplement this motion if necessary and request this court to not rule on his motion or deny his request for an evidentiary hearing until counsel is afforded a reasonable time to review all scientific analysis that is forthcoming from the government. This reply is

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based on the attached memorandum and Exhibit 1, attached hereto, and incorporated herein by this reference. No excludable delay may occur as a result of this motion or an order thereon.

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MEMORANDUM The government does not dispute any of the defendant's facts so therefore, the court may assume that the facts asserted are true; most specifically that the government did indeed destroy the evidence by extracting all of the DNA from the sample and that no original sample from either of the fingernails remains for defense testing. The government dismisses the defense on three grounds; (i) that DNA evidence from victim's fingernails had no exculpatory value that was apparent before the evidence was consumed, (ii) that the DPS lab had no option but to consume the fingernail samples in their entirety, and (iii) that the government has provided full documentation of the testing which the laboratory undertook. On not one of these points do the materials provided by the government support their assertion. In fact, to the contrary, if given the opportunity of offering testimony at an evidentiary hearing, the defendant will show that, (ii) the government knew of the potentially exculpatory value of the original fingernail samples, before the government destroyed the evidence, (iii) that the DPS lab erred in not splitting the fingernail samples, because there are commonly used, scientifically acceptable methods available for splitting a sample of this type and that the lab's records show that there was more than enough biological material in the fingernail samples for them to be split (as mandated by their own protocols for samples of this type), and (iv) the records provided to date by the DPS lab are incomplete, illegible and most importantly, the DPS lab has withheld the data pertaining to their testing of the key fingernail samples on the grounds that the "computer used for retrieval and copying of this archived data is currently out of commission." 1 As the defense has not yet received full disclosure and believes that that additional disclosure will contain information relevant to this motion.2 The defendant

See Exhibit 1, Defense counsel's letter of 1/10/06 with DPS's responses to defense counsel's letter dated 12/1/05. 2 The defense has not received full disclosure as of this date. See letter dated 1/10/2006 to the government. The government has not responded with disclosure to the defense requests contained therein. It is expected that full disclosure will be made next week. However, the defense does not waive any right to challenge the late disclosure.
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moves for additional time to supplement his motion or file additional motions regarding the government's DNA evidence. The government concludes "as the DNA sample would support but one test" and "defendant never alleges that the DNA sample at issue could have supported additional testing" therefore, there is no evidence that the consumption of the original sample was in bad faith. Response, p.1 and p.2, ll.2-3. Here the government confuses the original biological sample with the DNA which was extracted from it. It is important to be clear on this issue, because it goes to the heart of the matter at hand. The biological evidence in this case was in its original, native form (up to and including it's deposition on swabs. The process of extracting DNA from the swab was the act of destruction of the evidence. The process of DNA extraction, which involves physical and chemical `lysis' (destruction) of the cells within the biological evidence, removal and modification of chemical components of the extract, the addition of chemicals, enzymes and reagents and multiple manipulations, each of which offers and opportunity for error. Through this process, the extraction stage, the original biological evidence was altered substantially and irreversibly through the agency of the DPS lab's actions. It is evident from their argument, that the government agrees that act of DNA extraction constitutes the act of destruction of the evidentiary value of the items of biological evidence ("the amount of cellular material collected was completely consumed by the DPS laboratory during testing", Response, p.3, ll.8-9 and "[t]he destruction of the evidence in this case is ...." Response, p.3, ll.12-14 and "[i]t was simply impossible to preserve the cellular material for further testing." Response, p.3, ll.7-8. What the government probably intended to say in the quote at the beginning of this paragraph is that the defendant never alleges that the biological evidence could have supported additional testing. If the defense was less than clear on this issue in his previous writings, it should now be stated unambiguously that the defendant not only asserts that the original biological evidence could have supported additional testing, but that the laboratory records provided by the government establish unambiguously that the biological evidence samples contained enough DNA for the government to have performed all the DNA tests they might reasonably want to perform on just half of the
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original swabs and that the consumption of the entire swabs was scientifically unjustified, unnecessary and prejudicial to the defendant. First, the government completely ignores the fact that it knew that the defense requested preservation of original biological evidence samples for independent testing well before any DPS testing which began on April 13, 2005. Further the government knew of the material value of the fingernails as nothing else that was tested yielded any incriminating results. On or about February 3, 2003, DPS's preliminary tests showed blood on items #25 (victim's right fingernails) and #26 (victims left fingernails). At that time, DPS notified the government that it would need blood samples from the suspects to conduct DNA testing. On or about May 11, 2004, DPS conducted tests on the evidence obtained from Eischeid's vehicle and the clubhouse carpet. No blood was detected on these items. On March 7, 2005 (ten months later) the federal government requests DPS to perform DNA analysis in this case well after the defense notification to the government that it wanted samples for independent testing. On March 8, 2005 Detective Dunn was informed by DPS that conducting scientific testing on hairs lifted from Paul Eischeid's vehicle could not be done "because of the amount of time that passed between the incident and the time tape lifts were performed...."3 Therefore, Detective Dunn knows at this point, there is no forensic evidence to connect Augustiniak to the Garcia murder. On April 4, 2005 at 12:30 p.m., Detective Dunn notifies DPS he wants DNA on the fingernails. DPS notifies Detective Dunn that it wants to consume the original samples.4 DPS requests permission for consumption of the original samples (fingernails) and permission to consume the DNA came from Bob Schutz through Detective Dunn at 1:00 p.m. ½ hour later. It can be assumed that Detective Dunn did not call the federal government to seek authorization for consumption of the samples. The federal government does not address or explain why MSCO Detective Dunn who has been working with the federal government on this federal murder case for years
Memo from DPS analyst dated 3/8/2005 regarding her conversation with Detective Dunn on March 8, 2005. 4 There is nothing in DPS records disclosed so far that explains or justifies consuming the original biological samples.
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would chose to call a state county attorney for authorization to consume the original biological samples. This is very disturbing, since (1) there is no state prosecution pending for this murder and this federal case has been pending since November, 2003; (2) Detective Dunn was told that the defense requested independent testing and (3) Detective Dunn was in close contact with the federal prosecutors regarding this case. Detective Dunn, by deliberately seeking unauthorized permission from a state prosecutor that had nothing to do with this case is alone tantamount to bad faith. Detective Dunn knew full well that such authorization must come from the Federal prosecutors and his bad faith conduct needs to be explored through an evidentiary hearing. More importantly, DPS did not have to consume as the government claims, the original biological evidence samples for its testing. Evidence samples #25 and #26, respectively are the right and left hand fingernail fragments. On April 11, 2005, DPS swabbed the fingernail fragments, such that the biological material from right hand fingernail fragments was now deposited on a single cotton swab designed "Item #25" and the biological material from the left hand fingernail fragments was now deposited on a single swab designated "Item #26." The swabbing of an item of evidence of this type is a common precursor to DNA testing, because it relocates any biological material from the original substrate (in this case fingernail surfaces) to a substrate which is more amenable to DNA testing, and, most importantly, it produces a more homogenized and uniform biological sample and offers and opportunity to split the sample into smaller, representative sub-samples. Ironically, biological evidence samples are often swabbed precisely so they can be split, or tested incrementally. Simply because a sample is on a swab does not mean that the whole swab has to be consumed. Splitting of cotton swabs of this type is an everyday occurrence in all labs doing DNA testing, including the DPS lab. The original biological samples (#25 and #26) could have supported additional testing if DPS had not consumed the samples. The swapping of samples #25 and #26 took place on April 11, 2005 (1 swab for each sample). DPS could have split the sample but it chose not to which is against its own protocol.

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DPS DNA Quality Control Manual, Crime Laboratory, March 2005 states: 7.3.3. Whenever possible, at least half of the original sample should be retained. Samples should never be consumed without the permission of the prosecutor or officer assigned to the case. An exception to this would be the consumption of evidence in no-suspect cases. 7.4.1. Upon receiving the Request for Scientific Examination, check for notes from either the analyst who performed the preliminary examination or from the supervisor to see if any of the stains are limited in size and may be insufficient for defense re-analysis. If the prosecutor/officer has not already been alerted to limited sample size, call the prosecutor/officer and advise him/her of the necessity to consume all or most of the sample.5 Do not consume the entire sample without permission, in writing or verbally, from the prosecutor/officer assigned to the case. For verbal permission the analyst's case notes should document the conversation. Whenever possible at least one half of each sample tested will be retained for re-analysis purposes. Documentation of contacts with prosecutors, officers, prior analysts and defense attorneys should be maintained by the analyst in the case file.

The DPS Quality Assurance Manual, March 2005 provides: 7. Analytical Procedures Analysis of evidence and evidence samples should be conducted to provide the maximum information with the least consumption of the sample. This requires the use of critical judgment concerning which procedures are appropriate given the constraints of the evidence. Every effort should be made to obtain entire profiles on probative samples/matches. 7.1 Sample evaluation and preparation 7.1.1 Characterization (including sample size) of most types of biological material must be performed prior to any attempted DNA typing analysis. Possible exceptions include: cigarette butts, envelope flaps, stamps, hairs, tissue samples, etc.

DPS did not document any problems with the sample size or any notification to MSCO or the federal government. Therefore, it may be concluded that sample size was not a reason for consumption of samples #25 and #26.
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7.3.1. Whenever possible, at least half of the original sample should be retained. Samples should never be consumed without the permission, verbally or in writing, of the prosecutor/officer assigned to the case. Possible exceptions could be for the analysis and consumption of case items from no-suspect cases. (Emphasis added). DPS according to standard practices in DNA testing, that it could have extracted just

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½ of each swab and quantified it without extracting all of the DNA from the original
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swabs (#25 and #26). DPS also knew that it should retain some of the original samples.
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They chose not to. What is left over of the DNA extracts which are useless for testing
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by the defense at this juncture.6 The defense requests an evidentiary hearing to make a record as to why DPS

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chose to consume the entire sample because it is clear from its own records that once it
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had consumed all of each swab and rendered them to DNA extracts that the amount of
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DNA it obtained from each sample was so huge that there is no question that they did
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not need to extract swabs #25 and #26 in their entirety.
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It is apparent from the government's own arguments that they concede that the point at which the biological evidence becomes destroyed is the act of DNA extraction, however it is useful to consider the reason why DNA extraction marks the point of no return, not least of which are the double threat of contamination and sample mix-ups "All samples must be carefully handled regardless of the DNA extraction method to avoid sample-to-sample contamination or introduction of extraneous DNA. The extraction process is probably where the DNA sample is more susceptible to contamination in the laboratory than at any other time in the forensic DNA analysis process." (`Forensic DNA Typing' by John Butler, 2nd Edition, Elsevier 2005, page 42. "A wrongly accused person's best insurance against the possibility of being falsely incriminated is the opportunity to have the testing repeated. Such an opportunity should be provided whenever possible. As we have previously notes, retesting provides an opportunity to identify and correct errors that might have been made during the course of analysis. Whenever feasible, investigative agencies and testing laboratories should provide for repeat testing. Evidence items should be divided into two or more parts at the earliest possible time, and one or more parts retained for possible repeat testing. Ideally, the division should be made before DNA is extracted, and each part should be handled by different personnel. If division before DNA extraction is not feasible, the division should be made as soon as possible afterward and certainly before any analytical tests are initiated." (National Research Council report "The Evaluation of Forensic DNA Evidence, National Academy Press, 1996, page 87, emphasis added). It is clear that the opportunity for retesting the fingernail samples is long since past, however the sheer amount of DNA recovered from the samples by the DPS lab establishes that a split of the original evidence was in fact feasible prior to the extraction of the samples. It should also be noted that it is the defense's contention, that contamination of the DNA extracts prepared by DPS could have taken place at any time during and after the DNA extraction, not just at the time that DNA was extracted.
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DPS' own laboratory records make it abundantly clear that they did not have to consume all of the original samples. In fact, it appears that the lab greedily extracted enough DNA to conduct up to 75 separate DNA tests.7 According to DPS' bench-notes, samples #25 (right fingernails) and #26 (left fingernails) where each rendered into fifty micro liters (50 µl) of DNA extract each at a concentration of 1.46 nanograms (ng) per micro liter, which means that the lab obtained approximately 75 nanograms of DNA from each sample (1.46 x 50 = 73) which is a huge amount of DNA.8 DPS conducted two separate tests on sample #25 (the right fingernails) using just two of the fifty micro liters they had obtained from the destruction of this swab. DPS conducted three separate tests on sample #26 (the left fingernails), using just twelve of the fifty micro liters they obtained from the destruction of this key item of evidence. DPS bench-notes show: 1. 7/11/02: DPS conducted serology testing on samples #25 and #26. Each tested positive for blood. DPS notes for Sample #26 state "possible tissue." 2. On 4/13/2005 DPS initiated the Profiler Plus test (STR). According to the test's manufacturer, this test requires between 1 ng to 2.5 ng of DNA per test. DPS used 1 µl of DNA extract, which according to the lab's quantification of the extract would contain 1.46 ng of DNA.9 This test revealed that neither sample #25 nor sample #26 had an indication of male DNA based on the objective criterion of the minimum peak threshold adopted by the DPS laboratory which was developed based on the lab's own validation research. As such, at this point in time DPS knew that test
According to Applied Biosystems, the manufacturer of the Profiler Plus and Cofiler test kits, the standard amount of DNA to use for an STR test is between 1 ng and 2.5 ng, however, Applied Biolosystems note that many labs are able to produce useable results with substantially less DNA. In recent years the Profiler Plus and Cofiler test kits have been used for testing trace DNA (the minute amounts of DNA deposited on handled items, such as guns, door handles, or steering wheels) where the amount of DNA tested may be below the limit of detection by quantification methods, and in the range of 0.1 ng. In the context of trace DNA, DPS' recovery of the DNA from the fingernail samples could be seen as a vast haul of DNA sufficient for almost a thousand tests. 8 DPS Lab reports. #114. 9 Lap Report, Batestamp, #52, #118-119, #129, #138.
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result was exculpatory with regard to the male defendant on the two fingernail samples.

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On the same day, 4/13/2005: DPS also used the same amount of DNA (1 µl or 1.46 ng) for samples #25 and #26 to run the Cofiler test.10 This test also revealed that neither sample #25 nor sample #26 had an indication of male DNA based on the laboratory's objective criterion of the minimum peak threshold. In so doing, the lab confirmed the exculpatory finding with regard to the male defendant on the two fingernail samples.

4. On 6/14/2005 DPS initiated Y-STR testing only on sample #26 (left fingernails). DPS used 10 µl of the extracted DNA (approximately 15 ng of DNA).11 It is not clear why DPS did not conduct Y-STR testing on the right fingernails sample (#25). The remaining extracted DNA (approximately 48 µl for sample #25 and approximately 38 µl for sample #26) proves that DPS did not have to use the entire original sample for its testing. It should have retained at least ½ of the original sample #26 in light of it own protocols and more importantly because the Defense repeatedly requested original samples for independent testing. Between April 4 and April 13, 2005, the defense should have been notified of DPS intent to consume the entire original samples for purposes of its testing. At that time, if DPS had still insisted that they intended to consume the entire sample and were unwilling to split the swabs, the defense could have provided an expert to attend the DNA extraction process and dispute whether the entire samples needed to be destroyed or in the alternative observe the extraction and take custody of the freshly extracted DNA prior to any analytical tests being initiated (as recommended by the NRC committee, see preceding footnote) It is an axiom of forensic DNA testing and its use in court that retesting of the original sample (#26) is the best guarantee against error and laboratory contamination.
(Genotyper) (p.119, p 139). They did not run Augustiniak or Kramer (see pages 121 and 122) Lab reports, page 52
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In this case, the government has foreclosed any retesting by the defense of the original sample #26 through intentional unnecessary destruction of the only forensic evidence that it claims links Augustiniak to the murder of Cynthia Garcia. In Arizona v. Youngblood, 488 U.S. 51 (1988),the Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id., 109 S.Ct. at 337. See California v. Trombetta, 467 U.S. 479, 489, (1984) (holding that the government violates a defendant's right to due process if the destroyed evidence possessed "exculpatory value that was apparent before the evidence was destroyed"). In this case the original biological samples were material. Evidence is material to a defendant's case if it "possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. 488-89. In this case, the government has but one witness Michael Kramer, a known alcoholic, methamphetamine user, paid informant and admitted murderer to prove its VICAR murder and kidnapping case against Kevin Augustiniak. It has known these facts since for at least three years prior to the DNA testing in this case. There is no other forensic evidence that links defendant Augustiniak to the victim. It knew prior to the consumption of the original samples, that Kramer has initially named six participants in the murder and then he narrowed it down to three ­ himself, Augustiniak and Eischeid. There is no question that the original biological evidence of samples #25 and #26 may have been exculpatory as to this defendant and inculpatory to other untested participants. Defendant should have been afforded the opportunity to test the original biological samples, particularly since the government waited a little than four years to begin conducting its own DNA testing. The facts are not the same as found in United States v Stevens, 935 F.2d 1380, 1387 (3rd Cir. 1991). In that case the court found that there was an insufficient sample to permit further testing and since the tests did not reach any definite conclusions, there was no bad faith. In case, there were sufficient original biological samples from which to extract DNA despite the government's claim otherwise. The government with knowledge of defendant's repeated requests for
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independent DNA tests was under an obligation to notify the defense of the possible consumption prior to the testing. The government had over four years between the collection of the sample and the testing and it waited until it knew that this case comes down to the only possible forensic evidence it has ---DNA. The defendant has established that the government acted in bad faith by its knowledge of the potential usefulness of the samples to the defendant; by it deliberate authorization to consume the evidence as well as its scientifically unjustified decision to consume the entire fingernail samples through destructive DNA testing. Collectively, this conduct denies the defendant the opportunity to present a full defense. It is an axiom of forensic DNA testing and its use in court that retesting of the original samples (#25 and #26) is the best guarantee against error and laboratory contamination. In this case, the government has foreclosed any retesting by the defense of the original samples specifically #26 through intentional and unnecessary destruction of the only forensic evidence that it claims links Augustiniak to the murder of Cynthia Garcia. Because defendant has not received full disclosure as of this date, Defendant requests that this Court delay any ruling on defendant's request for an evidentiary hearing or the motion until Defendant receives the requested disclosure as well as any additional DNA testing and results. RESPECTFULLY SUBMITTED on February 3, 2006.

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PATRICIA A. GITRE PLC

/s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak

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ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 02/03/2006 Clerk of the Court Judge David G. Campbell Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 Tim Duax and Keith Vercauteran Government counsel All Defense Counsel /s/ Patricia A. Gitre

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