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California v Wright Transcript Dna Test Errors 1996

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Excerpts from Noah Wright Hearings re Donna Dowden errors:

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MUNICIPAL COURT OF THE STATE OF CALIFORNIA

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MARIN COUNTY JUDICIAL DISTRICT

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---000---

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HON. JOHN A. SUTRO, JR., JUDGE

DEPARTMENT NO. G

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6 THE PEOPLE OF THE STATE OF CALIFORNIA,

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Plaintiff,
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vs.
l No. SC-078796A
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NOAH ISAIAH WRIGHT,
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Defendant.
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________________ l

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PRELIMINARY HEARING
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REPORTER'S TRANSCRIPT OF PROCEEDINGS
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Tuesday, September 17, 1996
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Volume XI
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(Pages 687-779)
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18 APPEARANCES:
For the People:

HON. JERRY R. HERMAN
District Attorney
County of Marin
By: EDWARD S. BERBERIAN,
Deputy District Attorney,

For the Defendant:
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KIM KRUGLICK
Attorney at Law
265 Miller Avenue
Mill Valley, CA 94941

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Lorena Chandler

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Attorney at Law
P.O. Box 762
Woodacre, CA 94973

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28 REPORTED BY:

MARGARET J. COLLINS, CSR No. 3117

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I N D E X

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WITNESSES

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Page

For the People
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DOWDEN, DONNA
By: Mr. Berberian
Further Direct Examination
(Resumed)

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H - Check list

706

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I - Document

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J - Document

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K - Photomicrograph

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L - Document

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M - Document

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N - Document

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o-

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By: Mr. Kruglick
Cross-Examination

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689

EXHIBITS

Iden.

Defendant's

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687

Document
Page 4

In Evid.

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Page 768

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what you say is true, but 129 is correct, right,
29 of 76?
A.
Yes.
Q.
But then if you turn the page, then there's
more corrections?
A.
Yes.
Q.
While you're on that next page, there's
another error that's indicated on that page as well,
isn't there?
A.
I'm sorry. Which page?
Q.
That would be your 30 -- well, originally
28, now 30 of 76.
MR. BERBERIAN: I'm going to object to the
characterization as an error. I think she's explained
why she did this. She inserted other photographs into
her bench notes.
So whether that's classified as an error is
argumentative.
MR. KRUGLICK: Your Honor, if I may, that
explained one of the numberings, but it didn't explain
the others.
THE COURT: Well, I'm not going to -- I can
hear the testimony and I'll draw my own conclusions.
I'm not going to quibble with Counsel over the way he
phrases the question, at least not this instance.
MR. KRUGLICK: Q. SO on Bates page 4332 it
appears that there's a Xerox copy of a product gel at
the top of that page, doesn't it?
Page 769

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A.
Yes.
Q.
And you make note of an error that you made
there right of that Xerox copy of the product geling,
don't you?
A.
Yes.
Q.
And in that instance I guess you're supposed
to have taken two photographs of the product gel.
A.
Right. It had material from two cases on it
and I should have taken two photographs so each file had
an original, but I neglected to do that. So one just
got a Xerox in its file and there's a note saying which
file the original is in.
MR. KRUGLICK: The next exhibit I'd like to
have marked is page 4324, counsel.
THE CLERK: Defendants' L marked for
identification.
(Whereupon, the document referred to was
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marked as Defendant's Exhibit L for
identification.)

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MR. KRUGLICK: Q. Ms. Dowden, do you have
4324 before you there?
A.
Yes, I do.
Q.
And this is a list indicating your
preparation of samples for the PCR amplification
process, correct?
A.
That's correct. It's a series of dilutions
that I made.
Q.
And these dilutions have to be known to you
so they give you information about the accuracy of the
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test results, correct?
A.
Well, it's mainly done to obtain an easy
amount to work with DNA.
Q.
Well, the amount of DNA as you've told us
can affect the results of the test ultimately?
A.
That's correct.
Q.
All right. 50 you need to know how much DNA
you're using, don't you?
A.
Oh, yes.
Q.
Now, with respect to the first R5IC
epithelial tube, you note that there's three nanograms
of DNA per microliter, correct?
A.
Correct.
Q.
But then you made an error in the sample
amount, didn't you?
A.
It wasn't so much an error as I changed my
mind about how much of the sample I was going to dilate.
If you only dilated two microliters, I would only have
had a total of 6 which might not have given me enough to
do all the things I wanted to do with solution.
Q.
50 this is evidence of your changing your
mind where you crossed out a certain amount of
microliters of sample and changed the number?
A.
That's correct.
Q.
And with respect to Exhibit 134, epithelial
fraction, there again you wrote in that you were going
to use 10 microliters for the sample and crossed it out
and changed it to 2, didn't you?
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A.
Yes. That looks like just a clerical error.
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Q.
You filed a report in this case evidencing
3 your results on June 12th, 1995, didn't yoU?
A.
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That's correct.
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Page 772

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Q.
Now, after that, you found that you had to
file an amended report?
A.
That's correct.
Q.
And that was because of errors that were
made in the original reporting, correct?
A.
That's correct, they were clerical errors in
the types of some of the DQ-Alphas that were not caught
before the report was sent out.
Q.
Well, essentially, in that first report you
indicated that a fellow named Stockridge was a 1.2,
comma, 2, correct?
A.
In one place, yes.
Q.
And in another place on the same report you
indicated that the same fellow was actually a 1.2,
comma, 3?
A.
That's correct. Obviously, they both can't
be right.
Q.
They both can't be right. In addition,
however, you misreported on the same report the results
for a fellow named Atkins, didn't you?
A.
That's correct.
Q.
And on both the first and second pages of
that report you reported Mr. Atkins as a 1.2, comma, 2?
A.
That's correct.

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Q.
And, in fact, Mr. Atkins is not a 1.2,
comma, 2, is he?
A.
It's not correct. He's a 1.1, comma, 1.2.
Q.
Will you turn to Bates page 4333, please.
I presume that it is from that Bates page,
ma'am, the list of individuals and alleles in the typing
summary that is reflected on that page from which you
got your information in which you made the errors in
your report?
A.
I believe that's correct.
Q.
But in addition to there being an error in
the report, there's an error on this page as well, isn't
there?
A.
Yes. There was a typographical error on Mr.
Atkins' type.
Q.
Well, ma'am, you have Mr. Atkins originally
listed as a 1.1, comma, 2, and then you cross that out
later on and change it to a 1.1, comma, 1.2?
A.
That's correct.
Q.
And are you calling that mistyping a
typographical error?
A.
Yes. If you look at the slips, he's a 1.1
1. 2.
Q.
SO it's your testimony that the error was in
reading the strip?
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A.
No, it was not in reading the strips. It
27 was in transferring the information to this particular
28 page from the strip or from the typing sheet. The

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corresponding typing sheet is Bates page 04330.
MR. KRUGLICK: Thank you. Will you take a
look at Bates page 4366, please.
Your Honor I have another exhibit I'd like
to have marked.
MR. BERBERIAN: I'm sorry. The Bates page
again?
MR. KRUGLICK: 4366.
THE CLERK: Defendant's M marked for
identification.
(Whereupon, the document referred to was
marked as Defendant's Exhibit M for
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identification.)
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MR. KRUGLICK: Q. Ma'am, if I recall your
testimony on direct when Mr. Berberian was asking you
questions, you were explaining to the Judge and to
counsel about the presence of a ladder on the analytical
gels. Do you recall that?
A.
On the 01580 gels?
Q.
Yes.
A.
Yes.
Q.
And specifically you were stating that the
presence of a ladder was important for the purpose of
sizing?
A.
For an RFLP, yes.
Q.
Now, on Bates page 4366, you evidence that
you made a mistake there, too, don't you?
A.
Yes.
Q.
And that is that there should have been a
Page 774

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sample placed next to the ladder and it was not,
correct?
A.
That's correct.
Q.
And the sample that was not placed next to
the ladder was 94b?
A.
That's correct.
Q.
And is 94b about what you testified on
direct when Mr. Berberian was asking you questions, do
you recall that?
A.
I don't believe so.
Q.
I may stand corrected here.
MR. BERBERIAN: 94a.
MR. KRUGLICK: I stand corrected and
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apologize.
THE COURT: All right.
MR. KRUGLICK: Q. SO, again, no ladder
here, correct?
A.
Well, the sample was repeated on a later gel
so that it was next to a ladder, but it was not
obviously next to a ladder in this run.
Q.
And that's an error?
A.
You could call it that.
Q.
And, by the way, when you -- as is your
practice, you dated the notes that you put on your
comments here?
A.
That's correct.
Q.
And you made an error in the date as well,
didn't you?

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Page 775
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A.
Yes, I did.
Q.
Now, one of the important parts of
preserving the integrity of tests where you're placing
biological samples in gels is to make sure that the
samples don't get mixed up?
A.
That's correct.
Q.
And to make sure that there is no leakage, I
guess is the word, from any of the lanes, correct.
A.
That's true.
Q.
And because this is such a hypersensitive
process that you're employing, you also want to make
sure that the gels, for example, are in good condition?
A.
Certainly.
THE COURT: It's just about 5:00 o'clock
now. That clock is slow.
MR. KRUGLICK: This seems to happen to me
when I get moving.
THE COURT: Do you want to finish up with
this?
MR. KRUGLICK: Just this one. If I could do
this and one more, I'd appreciate it.
THE CLERK: Defendant's N marked for
identification.
(Whereupon, the document referred to was
marked as Defendant's Exhibit N for
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identification.)
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MR. KRUGLICK: Q. That's Bates stamped page
27 43691 Defendant's N. Do you have it in front of you.
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A.
Oh, yes. I knew just where you were going.

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Q.

I thought you might.
Page 9

You loaded some

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evidence samples on an analytical gel for a 01580
amplification, didn't you?
A.
Yes.
Q.
But before you even loaded them, you noticed
that there was a bubble in the gel, true?
A.
Yes, that's correct.
Q.
But notwithstanding the bubble being in the
gel, an imperfection in the gel, you went ahead and
chose to run the test in any event, correct?
A.
That's correct. The bubble was not in a
location where I thought it would cause any problems.
Q.
But in fact while you were running the test
right where the bubble was, the gel ruptured completely,
didn't it?
A.
Between those two wells, yes.
Q.
Now, the first time that I asked you about
the ladder and the 01580 analytical gel where you forgot
to put in the ladder, 4366 -A.
It was a sample that should have been next
to a ladder that wasn't.
Q.
Correct. The date on that is 9-21-96, is
that true?
A.
That's correct.
Q.
The date on the rupture of the analytical
gel is 9-25-95?
A.
That's correct.
Q.
And then you performed yet another

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analytical gel for 01580 amplification on 9-28-95,
didn't you?
A.
Which page is that?
Q.
4372.
A.
9-28, yes.
Q.
And notwithstanding the earlier failure to
put a sample next to a ladder, you once again note that
you failed to put a sample in this later test next to a
ladder as well?
A.
That's correct.
THE CLERK: Defendant's 0 marked for
identification.
(Whereupon, the document referred to was
marked as Defendant's Exhibit 0 for
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identification.)
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MR. KRUGLICK: Which is Bates page 4372.
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Your Honor, I think this would be the time.
17 I could go on forever.
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THE COURT: Thank you for at least being
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20 morning at 10:00 o'clock.
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We'll be in recess until then.
MR. KRUGLICK: Thank you, sir.

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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MARIN COUNTY JUDICIAL DISTRICT

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HON. JOHN A. SUTRO, JR., JUDGE
DEPARTMENT G

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--000--

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THE PEOPLE OF THE STATE OF
CALIFORNIA,

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Plaintiff,
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vs.
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NOAH ISAIAH WRIGHT,

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No. SC078796A

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Defendant.

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REPORTER'S TRANSCRIPT OF PRELIMINARY HEARING

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Wednesday, September 18, 1996

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804
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And the second is the number of nanograms per
milliliter of DNA; is that correct?
A.
No. The second column is the microliters that
Q.

the
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VOLUME XII, PAGES 780 THROUGH 835

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volume of DNA extract it will take to attain the number of
nanograms listed.
Yesterday we talked about some samples that had
been diluted for peR testing. When I do that procedure

what
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I'm doing is diluting samples so that they are one
nanogram
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per microliter and then that makes it very easy for me to
work with.
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If I have samples that are too diluted already,
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then there will be, as in the case here, different volumes
to
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acquire the number of nanograms that I want to amplify.
Q.
With the -- at lane six, the reagent plank for
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epithelial cells, you made an error there that you had to
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correct; didn't you?
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A.
Yes.
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Q.
Now, in addition, you made another error with
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respect to the amplification in this particular product
gel
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run; didn't you?
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A.
You're referring to the quantitation error?
Q.
Yes, ma'am.
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A.
Yes.
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Q.
And in that regard, you actually thought that
you
had 2.6 nanograms of nuclear DNA to amplify; didn't you?
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A.
That's correct.
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Q.
But, in fact, you didn't. You only had 0.26 -A.
That's correct.
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lOth

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Q.

-- nanograms of nuclear DNA.

of what you thought you had?
A.
That's correct. Yes.

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You only had a

The error goes back to

the
slot blot run sheet. When I did the math, calculating the
nanograms per microliters, I made a decimal point error in
recording that. That's Bates page 04342. And so that
mistake then followed into the next step, which was this
amplification.
Q.
So the error at an earlier stage caused a
problem
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at a later stage?
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A.
That's correct. It ended up with too little DNA
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for amplification to occur.
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Q.
And that's on page 4354 that you discovered
that;
isn't it?
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A.
I'm sorry. 4354?
Q.
Yes.
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Well, where I discovered there was too little
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A.
DNA
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was when the product gel did not have a product band and I
went back to try to figure out why, when there should have
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been plenty of DNA. I don't believe -- well, there is
another note about that on 4354.
Q.
You're right. I believe you testified earlier
on -- maybe it was even during voir dire when I was asking
you questions, that you received -- you took a number of
proficiency tests?
A.
That's correct.
Q.
And, as I recall your testimony, the proficiency
tests are to determine the quality of your work; correct?

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trying to decide whether to fight a case or negotiate some
type of a settlement, a plea bargain, I guess we'd call it

in
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its rankest form. You're aware of that?
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A.
That's correct.
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Q.
So you're aware that precision is of
significance?
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A.
Yes, I am.
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Q.
You also testified, as I recall, that you
performed
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satisfactorily on all of the proficiency tests that you
had
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been given?
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A.
That's correct.
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MR. KRUGLICK: Your Honor, I have a six-page
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document that I would like to have marked. It's titled
Seri,
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S-e-r-i, DQ-Alpha Basic Panel Set 1A?
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THE COURT: All right.
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THE CLERK: Defendant's Q is marked for
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identification.
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(Defendant's Exhibit No. Q, Proficiency Test,
was marked for identification.)
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MR. KRUGLICK: May I provide this to the
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witness,
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your Honor?
THE COURT: Yes.
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MR. KRUGLICK: Thank you.
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Ms. Dowden, will you tell the Court and counsel
Q.
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what the group of documents before you is, if you know?
This is a copy of one of my proficiency tests,
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A.
the
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Seri PanellA. It includes my bench notes and report and
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then a supplemental report.
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Q.
Now, directing your attention to page two of the

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808
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six-page document
A.
Yes.
Q.
-- that is your report of the results that you
obtained during the course of performing that proficiency
test; correct?
A.
That's correct.
Q.
Now, specifically, you reported out sample three

as
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a 1.1 comma 2; did you not?
A.
Yes.
Q.
That's the same alleles that you report out for

the
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victim in this case?
I believe so, yes.
A.
In addition, you reported out sample four as a
Q.

1.1

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comma 2?
A.
Q.

That's correct.
And based upon that, you concluded in this

report
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that samples three and four could have had a common
origin;
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correct?
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A.
Yes, I did.
Q.
That means that samples three and four in this
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proficiency test in your report in your opinion could have
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come from the same person?
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A.
That's correct.
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Q.
Now, that test was reported out on July 9th of
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1993; wasn't it (sic)?
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A.
Internally, yes. That was not an external test.
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Q.
Once
you reported out these results internally
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on
JUly 9th of '93, to whom did you provide them (sic)? That
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is

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to say internally to whom?
A.
I'm not actually sure whether it went directly

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Ken or directly to Jan.
Q.
Your signature is over the
isn't it?
That's correct.
A.
And Ken Konzak is the same
Q.
testified was your supervisor on the
discussed that you published in this

to

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case?

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A.
Q.

individual who you
reports that we
case, the Wright

That's correct.
And then, Ms. Dowden, some six months later you

had
28

name of Ken Konzak;

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been
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that
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as a
23
found
24
1.2?
25
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to file a corrected report -That's correct.
A.
Q.
-- of this proficiency test because there had
errors in the original report that you reported out; is
correct?
A.
That's correct. And, in fact, there is an
incorrect statement in the supplemental report, as well.
Q.
We'll talk about it.
A.
I'm sure we will.
Q.
In that regard, what you had to do is you had to
correct sample four that you had previously reported out
1.1 comma 2, the same as the victim in this case, and
that indeed it wasn't a 1.1 comma 2; it was a 1.1 comma
A.

Q.
A.
Q.

That's correct.
An entirely different DNA genotype?
That's correct.
And this report was approved by a supervisor;

810
1
wasn't it?
A.
I don't see any initials that the supervisor did
2
3
ever actually review this and approve it.
Q.
The
4
A.
Jan Bachinski (sic) at that time was the
5
laboratory
6
director and she was also the
I don't remember what the
7
title was, but some sort of QC manager. And so she did
the
final approval on all of the proficiencies at that time
8
and
9
kept updated the records periodically.
10
Q.
Jan is now the director of the lab just under
Lance
11
Gima; right?
A.
Jan is now the director of the Bureau of
12
Forensic
13
Science.
14
Q.
Just above Lance Gima?
15
A.
Actually two spots above Lance.
16
Q.
So she was the head of the quality control
portion
17
of the lab at the time that this supplemental report was
18
reported out because of errors you had made in previous
19
reports in this proficiency test?
20
A.
Yes. Because of a typographical error, yes.
21
Q.
And even after making the corrections six months
22
later in this proficiency test, it's still wrong; isn't
it?
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A.
The table is now correct, but I did not
apparently
24
read it when I corrected the table because the follow-up
25
statement is then not a true statement.
26
Q.
SO that even though now we have sample three a
1.1
27
comma 2, and sample four a 1.1 comma 1.2, you have still
28
concluded in this test that they could have had a common

5
6

7
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1
2
they
3

origin?
A.

Well, the follow up paragraph still says that

are still both a 1.1 comma 2, so, therefore, they could

have
4
5
6
7
8
9
10

had the same origin.
Q.
That's wrong, isn't it?
A.
That's correct. It's wrong.
Q.
And it's your testimony that you have performed
satisfactorily on all of your proficiency tests?
A.
The analytical results are correct. The written
report had some problems, which Jan didn't catch when she
11
reviewed it the last time.
12
Q.
SO your supervisor didn't correct the error
either?
13
A.
That's correct. Unfortunately, we're all not
14
perfect.
Q.
15
Now is D1S80 PCR more sensitive than DQ-Alpha
PCR?
16
A.
Less sensitive, in general.
17
Q.
It's your testimony, I recall, that because
there's
18
a C dot, a control dot on the PCR strip, that you know
19
whether there exists sufficient DNA to test using the
20
DQ-Alpha test system?
21
A.
Or more technically that sufficient product was
22
generated, yes, because I know typically how much DNA I
put
23
in and whether or not that should amplify. There may be
24
inhibitors that may prevent amplification. The C dots are
25
actually a measure of the sufficiency of the product or
the
26
amplified DNA.
Q.
Okay. And the amplified DNA is contained in
27
some
28
kind of a suspension or dilution, but you know how much
DNA

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827
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2

2

E3?

A.

Yes.
Q.
There is a place there for you to include the
amount of nuclear DNA per microliter that you learned
4
existed
5
from your slot blot run procedure; correct?
6
A.
That's correct.
7
Okay. And you made a mistake there, didn't yoU?
Q.
I think that's probably a rounding thing. It
8
A.
was
9
probably .16 something and I decided to round it up to
seven
10
rather than carry the numbers out.
What is -- is that evidenced on this sheet
11
12
anywhere?
13
A.
No.
14
Q.
What this says is a .16 and the 6 is crossed out
15
and the 7 is there in its place?
16
A.
That's correct.
17
Q.
And you initialed that?
18
A.
That's correct.
Where can you show us that the rounding took
19
Q.
place,
20
ma'am?
21
A.
I could check it on my calculator and see, but
22
that's what it would look like to me. I don't have any
23
independent recollection of doing it.
It may have simply
24
been a recorded error.
25
Q.
Okay. And similarly, if you take a look at Blot
26
C2, there you report out 0.67 nanograms per microliter of
27
DNA; correct?
28
A.
That's correct.
3

3

4

5
6
7
8
9

10
11

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13
14
15
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1

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2
3
4
5

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22

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Q.
A.
Q.
A.
Q.

828
But, in fact, that's not correct, is it?
That's correct. It should have been .067.
That's a substantial difference, isn't it?
Quite a bit, yes.
And so that is another error that you made just

on
6
7
8

this one sheet?
A.
Yes, it is.
MR. KRUGLICK:

I have another exhibit, your

Honor.
THE COURT: All right.
9
10
MR. KRUGLICK: Bates page 4357.
11
THE CLERK: Defendant's U is marked for
identification.
12
13
(Defendant's Exhibit No. U, DQ-Alpha Typing
Sheet,
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3

4
5
6

7
8
9

was marked for identification.)
14
MR. KRUGLICK: Q. Now, Defendant's U is a DQ15
Alpha
typing sheet; is it not?
16
A.
Yes, it is.
17
Q.
And a DQ-Alpha typing sheet is sort of a list, a
18
series of things that look like the test strips that we
19
showed the Judge yesterday?
20
21
A.
Yes.
Q.
But they're blank; they don't have dots in them?
22
A.
Until I fill them.
23
Q.
SO the purpose is to fill in the results of the
24
test that you performed?
25
A.
That's correct.
26
Q.
All right. Now, with respect to item 98B, the
27
epithelial fraction
28

10
11

MUNICIPAL COURT OF THE STATE OF CALIFORNIA

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4

MARIN COUNTY JUDICIAL DISTRICT
---000---

HON. JOHN A. SUTRO, JR., JUDGE

DEPARTMENT NO. G

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6 THE PEOPLE OF THE STATE OF CALIFORNIA,

17

7

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8

19

9 NOAH ISAIAH WRIGHT,

20
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22
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10

Plaintiff,
vs.

1
1
1

Defendant.
l
________________l

11

12
PRELIMINARY HEARING
13

REPORTER'S TRANSCRIPT OF PROCEEDINGS

14
Wednesday, September 18, 1996

25

15
Volume XIII

26

16
(Pages 836-917)

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17
28

l
l
l
l
l No. SC-078796A

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Page 864

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Dated: Sunday 3-23-97

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A.
I don't believe the extraction process
failed.
I believe there was just something
characteristic of that particular sample that made the
sperm membranes fragile.
Q.
Isn't the purpose of the separation to
separate the epithelial and the sperm?
A.
That's its purpose. Unfortunately, it's not
perfect.
Q.
Directing your attention to Defense Exhibit
L, ma'am
MR. BERBERIAN: Page number, please.
MR. KRUGLICK: Bates page No. 4324.
Q.
This is something that we've already talked
about, the third sample down, 134ecII, does the 2
indicate that it is the second attempt at this
extraction and amplification?
A.
Yes, it does, or the extraction, yes.
Q.
And in the sample there you made another
error, didn't you?
A.
Yes.
Q.
That's not a typographical error, is it?
A.
No, it's not.
For the record, I wrote 2010 and crossed it
out and changed it to 2.
Q.
And that is an error unrelated to the other
mathematical error that we discovered here together,
isn't it?
A.
Yes, it is.

19

Respectfully submitted,

20

JOSEPH L. SPAETH,
PUBLIC DEFENDER OF MARIN COUNTY

21
22
23
24

by:
Frank J. Cox
Chief Deputy Public Defender
Attorneys for Defendant.

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