6.Glove DNA Evidence — Statistical Analysis and Admissibility
19 linesTHE COURT: Okay. Then there are some pending motions that I invite brief argument on. And as I said this morning, these are -- I think these are all perhaps under seal although I'm not sure they really need to be, particularly at this stage and certainly not after the jury is actually seated, I don't think. I mean, I don't think Daubert motions generally need to be sealed, for example. We were doing it in aid of the jury selection process so there wasn't a lot of discussion about things that might not ever be in evidence while we were in that sensitive stage, but it's not unusual for -- once the case gets going, for things like that to be in the public record.
So why don't we start -- there are two Daubert motions that I think you had indicated you needed to -- or would like to have resolved before the openings. One is related to a DNA matching and the other is related to polymer tapes and fiber matching.
MR. WATKINS: They're both mine, your Honor, so your choice. Which one would you like first?
THE COURT: Either one.
MR. WATKINS: In regard to the gloves, your Honor, these are a pair -- well, they're unmatched golf gloves that were found on the floor of the Honda Civic after the conclusion of the shootout on Laurel and Dexter Street. On the outside of the gloves is the red blood stains -- red-brown stains that turn out to be the blood of MIT Police Officer Sean Collier. That is not at issue. That will not be challenged at trial. The DNA analyst will testify that that is indeed Officer Collier's blood, and we do not intend to challenge that in any way.
The gravamen of the motion is what is found on the inside of the gloves, and it is different as to different gloves. In the left glove there is DNA of two profiles. The major profile is Tamerlan Tsarnaev, of course Jahar Tsarnaev's older brother. There's a minor profile that is inconclusive as to Jahar Tsarnaev, in our view, that does not come in. There's no possible way to exclude it.
If indeed the Court or the government were going to press it, I believe we would try to call an expert at an Daubert hearing to say that, in fact, he should be excluded as a source, a potential source, of the minor profile on the glove.
As to the right glove, it becomes a little more complicated because there are at least three contributors to the DNA that is on the inside of the glove, and there's no major profile or minor profile. This is a mixture of DNA profiles that is found inside of the glove.
The analyst, shortly after the events at issue, did the DNA on it, concluded that neither Jahar Tsarnaev or Tamerlan Tsarnaev could be excluded; in other words, they could be included as possible donors of the DNA. What she did not do at that point was give any kind of statistical analysis. We believe, and continue to believe, that any kind of DNA conclusion has to be supported by some kind of statistical analysis or it becomes meaningless and, in fact, inadmissible because there's no way for the jury to properly evaluate it other than to say that they could have been potential contributors; that there's no statistical analysis of how likely they are as opposed to anyone else in the world.
So that is where things stood at the beginning of September and actually into October. As part of our expert disclosure in October, we flagged the issue, and specifically in proffering our expert on DNA, flagged that particular issue, that he would get up there and testify that scientifically it's unsound criminalistics -- it's unsound to put forth a conclusion without any kind of statistical evidence.
The government sat on that, did nothing at that point at all. Daubert motions were set. The deadline set by this Court was at the beginning of December. I believe it was December 5th. Again, we filed a motion to exclude, particularly those conclusions; again, not the fact that there was blood by Officer Collier but what was in the interior of the gloves. And that was based on the fact that it was inadmissible because there was no kind of statistical analysis; therefore, the government at Jahar Tsarnaev's trial could not introduce this as some kind of evidence that was probative of really anything.
In the response, the government came back, having hired a wholly new expert in statistical analysis of DNA results that had been received by the -- by and forwarded to the Massachusetts State Police, in other words, a statistical analyst did what the Massachusetts State Police did not do.
The difficulty with this is it was now December 22nd. As the Court knows, we were all in full -- running on all cylinders getting ready for trial. We filed a reply motion arguing essentially that it was too late at that point for the government to proffer yet another expert, and a particularly thorny kind of expert in a very high octane field of statistical analysis, and that it was really impossible for us to prepare for that kind of expert at the late date that the government did given that they declined to go forward for the couple of months that they had knowledge that this was going to be an issue there. So that's where we stood at the end of December. So our argument right now is that it's too late for the government to inject a new expert into this particular issue. And even if it weren't too late, it is a little bit -- under 403 analysis, it's -- it's not something that the Court should do. What the government is really trying to get across here is that there is some kind of link between the Honda Civic and Jahar Tsarnaev and Tamerlan Tsarnaev and Watertown to the shooting of Officer Collier.
They got that. That -- the fact that Officer Collier's blood is on the gloves that's inside there, there's simply not going to be any kind of challenge. As the Court is going to hear fairly quickly on, there will not be any challenge that Mr. Tsarnaev, Jahar Tsarnaev, was at the scene and was present at the shooting of Officer Collier.
So once you get to that point where there's not going to be any kind of challenge, all the government really needs to do is match up people on Laurel and Dexter Street in Watertown with the people that were up in -- at the MIT campus when Officer Collier was shot. They've done that. They get that with the unchallenged evidence that we've given them.
It then becomes really confusing and a waste of time and very prejudicial to Mr. Tsarnaev to go beyond that. It becomes confusing because the government is going to -- or the government will put on a statistical expert -- it will be very, very high-level kinds of testimony that is there. If the Court were inclined to do that, we would have to put up a statistical analyst ourselves. There would probably be -- we would contend there would need to be a Daubert hearing as to the statistics before either of them got up there. And at the end of the day it's going to be an exceedingly minor matter that matters not to the government about proving the essential point that they want to prove, which is that these two men here in Watertown were the ones that were at MIT.
And it becomes pretty prejudicial because of the fact that there are both Jahar Tsarnaev's DNA and Tamerlan Tsarnaev's DNA. Not the fact that they are both there, but the fact that their profiles can potentially match what is there. The jury is very likely to take that in kind of the wrong way, that perhaps they both wore the glove at the time that this happened or that either one of them could and that's some -- that's close enough.
But that's not what the statistics, of course, are going to mean. It just means that either one of them -- there's no ability in this context to do any kind of relative culpability about who actually wore it on one occasion, who wore it more. There's a slight statistical probability that it's more likely that Tamerlan had the glove and it's more likely him that wore it at some point than maybe Jahar Tsarnaev, but even that gets very confusing to the jury. If we get into that kind of fight, the jury is likely to use it in a way that is very impermissible.
So it really does very little to prove anything that's going to be at issue in this case. It's going to become very confusing. At a minimum, we're going to waste a morning trying to go through statistical analysis and teaching the jury some very complicated concepts about how statistical analysis works.
A better course, and I think the only course for the Court given that it was late disclosed and given that it violates 403, is to simply to exclude it at this point. Let the government talk about Sean Collier's blood but no more.
MR. WEINREB: Your Honor, listening to that argument, it didn't sound like much of a Daubert argument to me at all. It's mainly an argument to exclude evidence on grounds of when it was produced and then on 403 grounds. But let me start from the beginning.
So there are two gloves here, a right glove and a left glove, as Mr. Watkins says.
THE COURT: I don't know whether this matters but are they a pair? Are they a matched pair or are they odd gloves?
MR. WEINREB: They are a pair. The only reason that it matters that one is a left glove and one's a right glove is that it enables us to talk about them separately and keep track of which is which.
So I would object to anything being argued about the left glove here. Nothing in his motion -- in Mr. Tsarnaev's motion mentions the left glove. If you look at the conclusion of his motion it says, "Based on the foregoing, the defense moves the Court to exclude testimony and evidence that the defendant was a potential contributor to the DNA extracted from the inside of the right glove recovered from the car." And you will search in vain in their motion of any mention of the left glove. That's all new here.
What the defense informed the government in a letter at one point is that if our expert testifies that the defendant cannot be excluded as a contributor of evidence from the left glove, they will want to put on an expert to say that he should have been excluded. But that's not a Daubert challenge; that's just what they're intending to do in their case, rebuttal evidence, meeting the government's evidence. So I think any reference to the left glove in this argument is a red herring.
Now let's turn to the right glove. So as Mr. Watkins concedes, it had Sean Collier's blood on the outside of it. On the inside of it was DNA matching two individuals. When you find DNA inside -- when you find DNA on something and it comes from only one person, then the statistical analysis is very straightforward. If you find DNA that's a mixture of two people, the DNA analysis becomes more complicated. That's because unless you have a lot of DNA from one person and only a little from another person, it can be difficult to tell just by looking at the -- visually looking at the results of the DNA analysis which profile belongs to one person and which profile belongs to another. If there's roughly equal amounts of DNA from both people, then you have to use statistics, you have to use math to calculate what the likely profiles are.
So the state lab, which is who initially examined the gloves, just like virtually every other lab in the country doesn't do that more complicated analysis. I think they're all on the verge of doing it, but they don't yet. However, there are other companies that do. And it's called -- the method that has been created by one company, Cybergenetics, called the TrueAllele method, which is a way of doing it.
The math is not that complicated once you understand it. This is a scientifically validated method. It's been validated in any number of studies. It's a well-understood method. It is a -- it's really a method no different from the method used where you just have one person's DNA, it's just a little more complicated.
The defense filed a motion on December 5th saying that -- arguing that there was a need for a Daubert challenge because it would be wrong for Jennifer Montgomery, the state's expert, to testify that Jahar Tsarnaev was a potential contributor of DNA to the inside of the glove if she could not give a statistical likelihood of that.
So the government went up and got the statistical likelihood. And two weeks later, which is the time for responding to motions, we filed our opposition. We had already served on the defense the results of the TrueAllele analysis, and we filed our motion saying now we have the statistic, so now there's no more need for a Daubert hearing.
I'm not really sure I'm hearing the defense say there is a need for a Daubert hearing. I would certainly be willing to have one if they question the statistical method, but the Court need not have one if it's clear that it's a reliable method. And I think if the Court looks at our opposition, it will be satisfied that it is clear that this is a reliable method and there's no need for a Daubert hearing.
So really what the defense argument boils down to is that the government's doing this was untimely. But it was done back in December, and they had -- by mid December they had the results. It's now the beginning of March. They've had plenty of time if they want to show these statistical results to their expert. It's not like somebody would need to do experiments to be able to assess this. It's just math. You just have to --
THE COURT: So let me understand. You're not proposing -- in light of everything that's happened, including your reply, you're not proposing to offer it without the statistical evidence?
MR. WEINREB: No, no, we are proposing -- so now we have --
THE COURT: That might be a Daubert question?
MR. WEINREB: No, I would concede for purposes of this argument that if we didn't have a statistic, it shouldn't come in. But now we have a statistic.
The defense's 403 argument, to the extent I understood it, which I'm not sure I did, has no merit. The defense argues that there's no -- there's nothing probative about us demonstrating that Jahar Tsarnaev's DNA was likely inside that glove. I think that -- just to state that argument is to refute it. Obviously it's probative that the gloves that have Sean Collier's blood on them on the outside are -- if the defendant's DNA is on the inside --
THE COURT: Well, is there any way of determining when either any sample of DNA is deposited? It could have been a week before?
MR. WEINREB: That's true. But that's a matter for cross-examination. That's often the case in any case.
THE COURT: No, but doesn't the inability to answer that question reduce significantly the probative value?
MR. WEINREB: Well, it wasn't -- it doesn't make it a -- you know, proof beyond a reasonable doubt but, you know, a brick is not a wall. This is just one piece of evidence. It's an indication that the gloves were worn by the defendant and by the -- by his brother at some point. Maybe they weren't worn that night. That's an easy enough question to ask the expert. Can you say when that DNA got on there? Couldn't it have gotten on there a week earlier? A month earlier? So you don't know that those gloves were worn by either of these individuals that night, do you? No. But, I mean, it's probative the fact that their DNA is inside of them and not somebody -- entirely third person's DNA, for example. These aren't difficult concepts for a jury to understand.
At one point Mr. Watkins said there is a much greater likelihood of Tamerlan Tsarnaev's DNA being in the gloves than Jahar Tsarnaev's. That I think is a misunderstanding on his part of the statistics that are cited here. It's true that the likelihood of selecting from the population at random somebody with the profile that was found in these gloves is -- it's only 45,000 for the Caucasian population for Jahar Tsarnaev and it's 155,000 for Tamerlan Tsarnaev, but that has nothing to do with the likelihood of whose DNA is in the gloves; it just has to do with how common each of their DNA profiles is in the population.
I'd also say that this 403 argument is being made for the first time -- literally the first time right here in this courtroom out of Mr. Watkins' mouth. Nothing has been filed on this. So I could -- it may be that, you know, the government could cite case law to you about DNA, about cases where you can't prove exactly when the DNA got there that would be useful to the Court. I haven't had an opportunity to do that because they never moved to exclude the information on this ground.
This is a Daubert motion. This was supposed to be an argument about a Daubert hearing, now we're hearing something completely different. This argument could be made, who knows when Officer Collier's blood got on the gloves? Who knows when any DNA gets on anywhere? That's always an issue with DNA.
THE COURT: The only urgency to this is if you wanted to talk about it in your opening.
MR. WEINREB: Yes. So we do want to say that the -- I mean, the murder of Officer Collier is different from the marathon bombings. There is surveillance video of two people walking up to Officer Collier's car and running away, but the video is taken from so far away that you can't see who they are. And so this is a circumstantial case to some degree when it comes to proving the defendant and his brother guilty of that murder.
The defendant could have -- Tamerlan Tsarnaev could have been there with another person. It doesn't necessarily -- you know, even assuming one of those two people is one of the Tsarnaevs, it doesn't mean the other one was. So we need to prove that they killed him. And we intend to prove it in a few ways. One is that the gun used to kill him is the same gun that was used in the shootout in Watertown. But another very important way, maybe the most important evidence, is that Officer Collier's blood is on this pair of gloves that is found in the car and both brothers' DNA is found in those gloves.
To the extent the defense wants to make the point that that doesn't mean that either one of them in particular, let alone both of them, was wearing the gloves that night, that's easy enough to make during cross-examination. That's easy enough of an argument to make to the jury. But the government has the burden of proof here.
And the defense keeps saying, as they said this morning, everything -- nothing is in dispute. Everything's, you know, pretty much agreed to. So the government -- what they seem to take from that is -- or what they seem to think flows from that is the government doesn't have the right to put in any evidence that the defense thinks, you know, might have, you know, an extremely strong impact on the jury. But that's not the law.
The jury isn't going to take its job as being just to decide the few things that the defense decides to contest and not the others. They're going to be instructed that we have to prove each and every element of every crime beyond a reasonable doubt. And identity is an element of every crime. We're entitled to our best evidence. This is good evidence. And the defense has not made any kind of compelling argument why we shouldn't be able to use it. And I don't think they should be permitted to make the argument without giving us the slightest notice that it was coming down the pike.
THE COURT: All right.
MR. WATKINS: Just two brief -- very brief points, perhaps. As I understand the government, they would agree that this is inadmissible as to the right glove if indeed the Court rules that they're too late on the statistical analysis and it can't come in. The government often reminds us in pleadings ever more strident strike that deadlines have consequences. This is a case where there was a deadline by the Court. The government knew we were raising this issue. They waited till the eve of trial.
While it is technically true that between December 22nd and now we could have gone into a whole other expert, the Court knows how hard, not just the defense, all of the parties are working here. It's the wrong time to bring this forward.
As far as the 403 argument, I think Mr. Weinreb forgot about the reply where we did argue from pages 4 to 8 of the defendant's reply exactly the arguments that are made today. To the extent he's saying somehow he's surprised about that, that's simply wrong. We argued 403 in there, we'll continue to argue it.
In regard to the left glove, if the government indeed is trying to put in an inclusive result as to Mr. Tsarnaev, that's a relevance problem. I don't understand how that comes in at all, Daubert or beyond. If there's some kind of scientific basis or legal basis for putting in an inconclusive result as to Mr. Tsarnaev, I think we will need a hearing before the government tries to put that kind of evidence in at trial because that's going to be a mistrial when the expert testifies to that and the Court has to strike it.