People v. Burrus

81 Misc.3d 550

200 N.Y.S.3d 655

The PEOPLE of the State of New York,

v.James BURRUS, Defendant.

Indictment No.: 817/2020

Supreme Court, Kings County, New York.

Decided on September 8, 2023

For the People: ADA Rachel Singer

For Defendant: Clinton Hughes and Richard Torres from Brooklyn Defender Services

Danny K. Chun, J.

The defendant moves to preclude the DNA evidence in this case arguing that the High Sensitivity DNA typing, also known as Low Copy Number ("LCN") testing, and the Forensic Statistical Tool ("FST") used here are not methods generally accepted in the relevant scientific community as reliable. The People oppose the motion.

The defendant is charged under Indictment No. 817/2020 with one count of Murder in the Second Degree (PL § 125.25[1]). The People allege that on or about and between September 25, 1980, and September 26, 1980, the defendant caused the death of Lorraine Snell. This cold case was reopened, and the defendant was indicted, in part, by testing the DNA recovered under the victim's fingernail, which was collected at the time of autopsy. The Office of the Chief Medical Examiner ("OCME") report indicates that High Sensitivity PCR DNA typing was performed on the samples from the victim's fingernails. OCME determined that a mixture of DNA from at least two people was detected on one of the fingernails from the victim's right hand ("PMR2") and stated that the mixture was suitable for direct comparison. Snell was included as a contributor to the mixture. OCME then compared the defendant's DNA to the mixture found on fingernail PMR2 and determined that the defendant was a possible contributor to the mixture. OCME used a probabilistic genotyping software called FST to produce a likelihood ratio statistic to give weight to that conclusion. OCME report states that the DNA mixture found on fingernail PMR2 is approximately 476 million times more probable if the sample originated from the defendant and Snell than if it originated from Snell and one unknown, unrelated person. Therefore, OCME concluded that there is a very strong support that the defendant and Snell contributed to the mixture, rather than Snell and one unknown, unrelated person.

The defendant filed a motion to preclude the People from calling an expert witness to testify on their direct case regarding any conclusion reached using either LCN DNA testing method or FST. The defendant argued that the LCN testing and FST were not methods generally accepted in the relevant scientific community as reliable. In addition, the defendant contended that the sample amplified in this case, which was only 19 picograms, went below the limit of the validation for both LCN testing and FST, further rendering the results unreliable. In the alternative, the defendant moved for a hearing to determine the issue. The People consented to a hearing.

This court ordered a Frye hearing. See Frye v. United States , 293 F. 1013 (D.C. Cir. 1923). The Frye hearing commenced on February 18, 2022 and concluded on November 18, 2022. The People called four witnesses: (1) Dr. Craig O'Connor, (2) Natasha Harvin-Locklear, Esq., (3) Dr. John Buckleton and (4) Dr. James Curran. The defendant also called four witnesses: (1) Dr. Dan Krane, (2) Dr. Jeanna Matthews, (3) Dr. Angela van Daal and (4) Nathaniel Adams. Following the hearing, both sides submitted briefs.

The following constitutes this court's findings of fact and conclusions of law.

Findings of Fact ( Frye Hearing Testimony)

The People's Witnesses

(1) Dr. Craig O'Connor

Dr. Craig O'Connor testified that he is the Assistant Director at the Department of Forensic Biology at OCME, a position he has held since 2017 (February 18, 2022 tr at 8-9). He is also the Technical Leader for nuclear DNA testing and serological testing at OCME (February 18, 2022 tr at 9). Dr. O'Connor has worked at OCME since 2008, and prior to becoming the Assistant Director, worked as a Criminalist II, Criminal III and a Criminalist IV (February 18, 2022 tr at 10, 13). At his current position, Dr. O'Connor oversees the technical operations of the laboratory, has the ability to put techniques online or take them offline and reviews validation studies and signs off on them (February 18, 2022 tr at 9). Dr. O'Connor is also responsible for making sure that the work being done at the laboratory meets the relevant accreditation and quality assurance requirements (February 18, 2022 tr at 10). Dr. O'Connor has a Bachelor of Science in physiology and neurobiology, a Master of Science in genetics and genomics and a PhD in genetics and genomics all from the University of Connecticut. Id. Dr. O'Connor has analyzed and reviewed DNA evidence using LCN testing hundreds of times (February 18, 2022 tr at 16).

Dr. O'Connor took statistics courses both at the undergraduate level and at the graduate level, covering basic statistical analysis as well as a more advanced course in population genetics, which was focused on statistics seen from a genetics level and populations of individuals (June 2, 2022 tr at 996). In addition, at OCME, Dr. O'Connor received forensic statistics training from internal and external trainers, and since 2015, Dr. O'Connor has been training the analysts (June 2, 2022 tr at 997). This lecture involves background knowledge on the fundamentals of population genetics and statistics, such as Mendelian genetics, as well as the application of those statistics to DNA casework for autosomal, Y-STR and mitochondrial STRs. Id. The training also covers how probabilistic genotyping is done from the binary, semi-continuous and fully continuous standpoints (June 2, 2022 tr at 998).

Dr. O'Connor has been trained in the use of FST and has used FST hundreds of times on criminal casework. Id. In addition, Dr. O'Connor has reviewed other analysts’ casework hundreds of times, which included the use of FST. Id. Dr. O'Connor has given lectures on the use of FST and how OCME had validated it (June 2, 2022 tr at 998-999). Dr. O'Connor has testified at evidentiary hearings involving FST three times and at trials several times (June 2, 2022 tr at 999). Dr. O'Connor was not involved in the design or the development of FST, and he has never been a developer of any other probabilistic genotyping tool (June 2, 2022 tr at 1001).

Dr. O'Connor was qualified as an expert in the field of forensic biology, including DNA analysis (February 18, 2022 tr at 35). In addition, while not offered as an expert in statistics, he was permitted to give his opinion on certain areas of statistical analysis tools. Id.

LCN testing is performed when there is a low amount of DNA (February 18, 2022 tr at 39). For LCN testing, the testing procedures are modified in order to increase the sensitivity to get at that low amount of DNA, and also the interpretation protocols are modified in order to account for that increase in sensitivity (February 18, 2022 tr at 39-40). OCME created the Low Copy Number Section at the laboratory around 2002 and started using LCN testing in 2006 after it was validated (February 18, 2022 tr at 38-39). Due to the highly sensitive nature of the testing, OCME had a separate laboratory within the building that was dedicated to LCN testing in order to avoid cross contamination (February 18, 2022 tr at 40, February 28, 2022 tr at 112). Dr. O'Connor testified that when LCN was brought online at OCME, LCN was a modification of an existing technique (February 28, 2022 tr at 109). LCN procedure has been done in different countries, and OCME modeled some of its procedures from the United Kingdom's Forensic Science Service's ("FSS") LCN procedure. Id.

The basic steps of DNA testing are: (1) DNA extraction, (2) quantitation, (3) PCR amplification and (4) analysis by running the DNA through capillary electrophoresis in order to produce a DNA profile (February 28, 2022 tr at 68-71, 80). The amplification cycle for standard DNA typing or high copy number testing is 28 cycles, but for LCN, it was 31 cycles (February 28, 2022 tr at 71). In addition to the three extra cycles, OCME did the amplification three times ("triplicate amps") in order to account for the increase in sensitivity, as opposed to once or twice (February 28, 2022 tr at 113, 116). The 31 cycles were done at OCME by a typing kit called Identifiler (February 28, 2022 tr at 71).

OCME's LCN validation took upwards of four years from the beginning until when it went online (February 28, 2022 tr at 117). OCME had a group of five or six scientists assigned to that validation full-time, and the validation consisted of over 800 samples with sensitivity studies from 100 picograms to 6.25 picograms (February 28, 2022 tr at 117-118). Sensitivity study is looking at different DNA sample amounts that can be used in the testing, and then extrapolating from that information to determine the interpretation procedure (February 28, 2022 tr at 120). During the validation study, the scientists were able to get results from all of the sample sizes from 150 picograms to 6.25 picograms (February 28, 2022 tr at 120-121).

During the LCN validation, OCME also completed all the validation studies recommended by SWGDAM,¹ although at the time, SWGDAM did not have guidelines specific to LCN (February 28, 2022 tr at 121, 197). In 2014, SWGDAM published guidelines for STR enhanced detection methods (March 11, 2022 tr at 196-197). The guidelines were not an endorsement of that methodology, but it stated what the best practices were for labs that were performing enhanced detection methods for STR typing (March 11, 2022 tr at 197). It was Dr. O'Connor’s opinion that the majority, if not all, of the guidelines recommended by SWGDAM were in line with OCME's LCN protocols that were already in effect (March 11, 2022 tr at 198). OCME did not have to modify their LCN protocols in order to be in compliance with SWGDAM guidelines. Id. In Dr. O'Connor’s opinion, the fact that SWGDAM came out with these guidelines showed that they were acknowledging that this is a...