11/06 MORNING TESTIMONY

Dr. Michael Bourke / Connecticut State Lab – Forensic Investigator – DNA investigations

Assisted 7 other states with investigations.

Bourke has Article on secondary transfer. In 1998 a group out of Australia wrote an article on small amount of research they have done on secondary transfer. We felt if this was true then it would have a dramatic affect on DNA testing. So we did a much larger study. And we have published an article on secondary transfer.

Secondary transfer does occur. When I started in forensics you needed a large blood stain to get DNA. Now we’re getting touch samples. Nannograms of DNA can be observed.

(Jon Byers / Prosecutor) : During trial many of us have touched the computer projector in this room. What would you find if you tested it? (Bourke) You would get a mixture of DNA’s.

(Byers) Describe how you set up a study on secondary transfer. (We did things with commonly handled objects, one person handle it then another. We did hand shaking experiments, and then touch an object and see if get my profile and the person’s hand I shook.  Looked at both primary and secondary.

There’s been discussion in court about different measurements of DNA. What have you seen? Australia article talked about 150 nanogram, we saw a maximum of 75 nanogram, there are some studys where under 10 nanograms of DNA were discovered. One study workers cleaned hands then would claw their co-workers, swabbed their fingernails, what recovering was a small amount of DNA.

13:40 Took 50 individuals and scraped their fingernails and in 12/50 cases saw a mixture – the person and unknown. But in all the cases the donor’s DNA was more prevalent than the unknown

15:34 (Byers) There’s been testimony that there was 42 nanograms of total human DNA and of that 38 were attributed to a match of Moe Gibbs. From your research and experience, is that amount of transfer one that would happen in secondary transfer? Absolutely not. What kind of contact would be needed. Primary contact and vigorous physical contact. It could be some sort of struggle or some kind of athletic event, like tackle football and you grab someone’s arm. Is there any literature that would support 38.8 nanograms of DNA being transferred in a secondary manner? No.

19:00 What was the highest level of DNA found in secondary transfer? The highest was 30 picograms which was one-

21:00 How many cases have you looked at fingernails of victims? About 40. How many of those cases did you find where someone else’s DNA was the major contributor – more than the victims. Only one

21:48 What can you saw about fingernail scrapings that would be a place of primary or secondary transfer. The area of the nail between the top and nail bed closes.  Some other objects contained other males DNA. Testimony about knives found in victims neck, rubber gloves, and scrapping stick used had males DNA. Does the fact that these objects had another males DNA on it?

Would objects around a college students apartment have other people’s DNA? Yes.

24:15 If other people handled objects in another persons apartment their DNA could be on them.

24:45 Do purchased items have DNA? Yes. In the Jon Bene Ramsey case, DNA was found on new underwear bought at stores in packaging. Lapses at factories where products are being produced.

27:50 There has been testimony that on one of the knives found by the victims body DNA matching Mindy’s and at least one or more males. From your experience, could that amount of DNA came from someone handling the knife in the past? It could have

3.17 nanograms of DNA was recovered from a rubber glove. It was a mixture of Mindy and an unknown male. From observations we have made, the low level could have came from the manufacturing process.

2 - 29:30 One of the arguments in this case is that the 30 nanograms of DNA could have come from the secondary transfer from a door knob or laundry basket. Could that have happened? In my opinion, no. Have you read any articles that would support that argument. I have not read anything that supports that amount of secondary transfer like in this case. 

 Jeff Bredahl cross examines Dr. Bourke

You agree with me that there are studies where people wash their hands and have less DNA than when don’t wash hands. Is that right? Yes.  How much more DNA lands on someone’s hand when you give a big ha-chue? I don’t know. You don’t know? In fall people have hay-fever, people are rubbing their eyes. If someone rubs their eyes, how much more DNA is on their hands? There’s not been a study on that. You don’t know?

2 – 39:30 If someone is moving out of their apartment and they’re sweating moving household items, do you agree with me that someone who’s sweating will transfer more DNA than someone who’s not. If he’s 6’2 and another person is 5’3 How much more DNA would he leave? It’s possible to leave more. As Gibbs sits here right now, do you know what his sluff rate is right now? No.

41:47 When you come down to case specific, you can’t tell the jury how many cells a day he sheds just because he’s living? No. 

2 - 42:33 The knifes had another DNA, You can’t tell the jury that the DNA was or was not associated with the crime. No you can’t tell when DNA was put on an object. 

There’s a report that shows the maximum amount of DNA found out off 100 volunteers, 50 men, 50 women. They had ranges from no DNA indicated up to 8 nanograms per micro liter.

People that have MS are their cells weaker? I don’t understand the question. Does someone with MS sluff just as much DNA as someone without MS? I don’t know.

In this case you don’t know how much of the nail was scrapped first and then clipped or clipped and scraped? I don’t know that. It’s important isn’t it? The surface is one variable. Is the surface amount, could it dictate how much DNA can be recovered?

50:24 When you said the length of time and the collection. Tell the jury about that. Typically in study the longer time that passes between deposit and collection is lost due to washing and every day contact.

In Ms. Morgensterns left hand scrapings there were 1.1 nanograms found under 2.5 nails. When Byers asked you the questions he grouped it together saying 1.1 nanograms. Take 1.1 nanograms divided by 2.5. What do you got? 0.44. 440 trillionths of a gram. Can you see it under a microscope? You can’t visualize DNA.

I’m going to hand you a paper clip, how many nanograms are on the tip of the paper clip? It could be

We have .44 billionths of a gram. How do we know it’s not snot from a nose in a klenex and someone touched it. 

2- 56:50 Have you done any studies if someone sneezes, touches a door  knob and another person comes by and touches it? No I have not.  All we know is findings of a controlled study, where people don’t shower everyday and don’t sneeze on their hands.

You didn’t use a real world study did you? Yes. With people in your lab. People here don’t wash hands, sneeze into their elbow.

3-

Rick Staub from a Houston lab will be testifying next that he found 10 nanograms of Y chromozones found on left hand scrapings.  Hope Olson found 36 nanograms of Y chromozones. Can you explain the difference. The total DNA was 40, so if you have a mixture of DNA, you can have a mixture of male and female.

You are not here to tell us how the DNA got under Morgenstern’s hand? No. Do you know how it got there? No. Do you know when? No. But you come in here with a synical view of how it got there. There are people who are equally reliable that would find that amount got there differently. Do you know there is video from the jail two days later? No. You said the evidence in this case was explained to you. Who explained it to you? Hope Olson and prosecuting counsel.

After 24 hours with someone scratching someone causing the skin to welt, and in some cases of drawing blood – in some cases, they weren’t able to find DNA. Correct? Yes. But the difference is people who were moving about and a victim that’s deceased. But the scenario that you just showed to the jury shows advocacy to the jury.

3 – 1:05:15 IT could’ve been on there 4 hours before, a day before when Gibbs carried a laundry basket to her apartment. I don’t believe the quantity could’ve been through primary transfer.  

Redirect by Jonathan Byers

Familiar with the fact that in this case we have 3 to 1 Gibbs to Morgenstern DNA. Yes. Is that seen anywhere in the study? No.  The defense talked to you about a time period, do you remember that? Yes. The article says DNA will can be lost during day to day activities. You were asked about other experts with same credibility will they give other testimony different from you. Do you know a man named Mark Taylor? Yes. Does he have the same qualifications as you? No. Are you familiar with is laboratory? Yes. Is it accredited? I believe it is not. What is Mark Taylor’s reputation in your field? A vast majority of the work he performs is for the defense community. Are you familiar with any articles Taylor has published? No. Has anything defense counsel stated to you that this 38 nanograms came from something like a door knob or laundry basket?  No, my opinion still is that this came from some direct contact, primary transfer.   

Rick Staub / Director, Forensics, Orchid Cellmark – Houston, Tx.  Concentrates on DNA identity testing.

I have three patents on DNA technologies. Two of them are deal with paternity testing. The third is molecular technique used on newborns. Expert in DNA. Testified before in this case. Testified for both prosecution and defense and in civil cases. Has orchid cellmark, exonerated the accused in occasions? Yes.  Can you explain what DNA is? All of our traits have a genetic trait to them. All in all, your DNA pretty much determines what you are, you get half from your mother and half from your father.  Every individual unless identical twins will differ. Explain how got to where we are now. In 1980’s the first way to identify DNA was developed by a lab in London. Developed a method, taking large quantities from an individual and extract the DNA – it required larger amounts but it was able to identify individuals well. Then we moved into ways to amplify smaller pieces of DNA to use. We’ve found shorter fragments. That was developed in the 1990’s. The UK and the US are at the fore front of the technology. 

Talks about form of testing called YSTR a way to test to separate male from female DNA’s.  A sample might be a mixture of one male and one female.  What would happen with that sample if there was a lot of the female and less of the male? If you end up getting a lot more female cells than male DNA, the YSTR’s will ignore the female DNA and amplify the male DNA. Good for sexual assault testing.

Going through evidence tested at Orchid Cellmark:

#1 - On the knife handle, you said you found a mixture of DNA can you tell the jury what you found? It appears there’s DNA there, but I wouldn’t count on that being there. Because so low? Yes.

1:20:40 -#2 - 2^nd knife handle – showed mixture of profiles, major contributor is Morgenstern – mixture of at least two males – Moe Gibbs excluded.  The amounts you found in that sample, more likely to be accurate? Yes. The total human DNA is .0908.

#3 - Swab from inside of rubber gloves – we found one nanogram per micro liter, which is quite a bit of DNA, but when we looked at male DNA, really low. Mindy’s DNA on gloves.

#4 - Scrapping stick from right hand – major profile Mindy Morgenstern.

#5 – Hair found inside Mindy’s hand – The root contains DNA – but we got nothing. No male DNA detected.  Is it safe to say it’s a female’s hair? Not necessarily.

#6 – Known swab from Moe Gibbs.

#7 – Mindy’s left hand clippings from ND state crime lab – it was partial profile, and Moe Gibbs couldn’t have been excluded from DNA.

1:28:08 – When I noticed Moe Gibbs had been excluded from all the other evidence, I called Hope Olson and asked if could send me clippings to make sure on the up and up. And when tested clippings, it was a partial profile, and Moe Gibbs couldn’t be excluded from DNA.

#8 – Stain outside the glove – showed mixture of male DNA and Mindy’s DNA – Gibbs excluded.

#9 – Cutting from shirt – appeared to be blood spot. When extracted DNA it had quite a bit of DNA, profile matched Mindy Morgenstern.

#10 – 2^nd Cutting from shirt – once again their was a lot of DNA consistent with Mindy but Moe Gibbs couldn’t be excluded as minor contributor. Only 1/15 African American men would match that. What happened when did YSTR testing. Small amount of male DNA, but there’s a predominant contributor and that matched Moe Gibbs.
4 - 1:34:30 In doing YSTR you came up with the result that MG couldn’t be excluded as a contributor of DNA found on white shirt. True, his profile matched the predominate contributor exactly. That result was produced in June 2007.

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