4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #87

[North_Idaho_Nony]

Sorry, but I think this is about the actual humans that are in IGG databases, not about DNA. Chain of custody for that information (the information used by LE to find the father) is what's at dispute - not the transport of DNA. That's my view - and you think they transported DNA.

There's absolutely no proof of either. I just know that ISL procedure is strict about sending irretrievable data (cells in the case of actual DNA) anywhere at all. There's no need to. Unless, of course, in rare instances - and if this is a rare instance, that hasn't been said either. If it is, then of course AT is challenging it (as she should).

But I am the type who thinks horses and not zebras. SNP profile is different than a regular DNA profile. THere are different formulae for SNP profile building. ISL ran the entire sample - NOT a subset (which is what an SNP profile is). And it is really too hard to explain here. I've tried.

I use a lab to do facial reconstructions. I am in a different lab when I do genealogical research (graduate work in kinship is a staple of anthropology). The forensics lab (run by colleagues) does different stuff - mostly with blood splatter, but also with footprints and fingerprints. We aren't rich enough (yet) to have students running organic samples, these are all computer-driven labs. It's exceedingly controversial to use organic materials in labs, so we do other things and the word "lab" should not conjure up just a few of vials, needles, microscopes, etc. For a good look at what the ISL process would have been when they studied the sheath, watch Spencer Wells's The Journey of Man (free on youtube). That is NOT what I'm picturing at Othram, I'm picturing it more like 23andme labs.

Now, if it turns out that they DID use Othram's "wet lab" services (which I admit is possible), then yeah, there are chain of custody problems and the Defense may get a win here. But it sounds like they did not use Othram's process lab, they went to the FBI, so I don't see the problem. All Othram did was use other people's data (given to them according to their own terms of service) to locate a Kohberger. Through an ordinary genealogy (a family tree) provided by someone who also submitted their own DNA matrix.

People use labs to do ancestral work and SNP profiles (that's what Othram, 23andme and Ancestry all do - with different algorithms, but NOT with different methods of looking at DNA). Either ISL ran the DNA or they didn't (and the FBI DNA analytics van was outside the crime scene, IIRC). I see no reason for ISL or anyone else to use another wet chemistry lab (which is what you seem to be implying).

ANd I'm trying to say that in MANY genetic laboratories - the only equipment you'd see is...a computer. Not the filtering media and computer used to get the initial full list of all those pairs (including but not limited to the SNP's - the SNP's are the subject of a different kind of lab study; a computerized lab that uses exceptionally sophisticated and complex algorithms, some of them proprietary - like Othram's).

I am absolutely certain that if "they" (PD/DA) did send Othram actual physical samples taken from that sheath that the Judge will make them state chain of custody. And give the Defense its own chance to do the same. If the PD/DA actually did this without at least checking with the then-Judge, wow, that's a huge mistake and yeah, there will be stuff thrown out of court.

That's what I'm saying. But I do not believe that to be the case, because the FBI knows what they're doing and guided this process and all states have the exact same laws about physical evidence in the category that's considerable "consumable."

IMO.

I’ve learned so much from your posts — thanks for your patience continuing to share your expertise for those who may have missed earlier “lessons”!

 

[Observe_dont_Absorb]

It's important that the rule of law, and the rule of prosecutions in particular, are followed to have an orderly society though.

I agree, as long as a case stays within the remit of a trail for BK as the law currently stands.

 

[Cool Cats]

Bryan Kohberger's Next Hearing Could Doom His Defense​

MSN

In a hearing on Friday, his attorneys will argue two motions: a motion to stay the trial and a motion to compel prosecutors to share certain evidence. The judge's decision on whether to grant the motions or not holds a big impact on the outcome of Kohberger's trial.

The motion to compel is an attempt by the defense to persuade prosecutors to share various evidence, such as all communication between lab personnel and any other party related to biological testing in the case, all documents related to genetic and genealogical testing, including documents related to samples from "unknown" males that were identified in the reports, any logs related to unexpected DNA results and "corrective actions" and other requests.

Palm Beach County, Florida State Attorney Dave Aronberg told Newsweek he expects the judge will grant a portion of this request, although it is uncertain which part.

However, if the judge denies the motion to compel, it would be a "big loss" for the defense, according to Aronberg.

"They don't really have much else. That DNA evidence is damning, and [the defense] has to come up with some sort of explanation. Faulty testing and collection is a common defense, but they need to have access [to the evidence]," Aronberg said. "They want details so they can punch holes in it."

 

[schooling]

I appreciate that, thank you.

A little trick is...

1. Instead of navigating directly to the site. Use Google to find the exact thing that you're looking for.

2. When you find the link in Google. On it there should be a 3 dot link/button hovering just to the right of it. Click it.

3. The 'More Options' menu will pop up and you'll see "Share" and maybe "Save" and/or "Remove Results". You don't want any of those. We want to find 'Cache'. If it's not there click on the down arrow circle button.

4. Choose the 'Cache' option from there. You'll get the latest version of the page since Google crawled it and stored it on THEIR servers. That doesn't have any silly IT imposed restrictions.

My directions make this seem like a much more involved process than it actually it is. In reality it takes only a second longer than click on the link itself.

 

[Jurisprudence]

Can we dispel the notion that there's something inherently evil about a sample or the sheath being sent offsite to Othram labs (after local processing) for genetic genealogy processing?

They are not exactly new to this and the evidence they produce has held up in dozens of cases... (link contains list of solved cases)

Recent Casework | Othram - A Revolution in Cold Case Resolution

Browse Othram's most recent casework.

othram.com

If I had access to LexisNexis I'd likely be able to find even more.

Can anyone cite any successful legal challenges to the above?


MOO

July 28, 2021

"Idaho now has a formal contract with Othram Laboratories (a prominent leader in forensic genealogy) to conduct the genealogy testing and forensic genealogy searching. ISPFS is ensuring that Othram follows accepted laboratory processes and procedures, and complies with the United States DOJ interim policy on Forensic Genetic Genealogy DNA Analysis and Searching."

ISPFS = Idaho State Police Forensic Services Laboratory

https://isp.idaho.gov/forensics/wp-content/uploads/sites/10/documents/notices/2021_07_28_Molecular_Genealogy_Notification.pdf

 

[Jurisprudence]

But also a third: raising serious questions of the constitutional correctness - or otherwise - of a Grand Jury for a felony, possibly instructed incorrectly, being held without the accused having the opportunity to present information that might have changed its outcome (it might have, we just don't know at this point what all of the evidence is).

I stayed up an hour past my bed time last night reading the lengthy and detailed motion regarding the constitutionality of the Grand Jury. As a lawyer (in England), I found it super interesting. The lawyer who wrote it (it wasn't Anne Taylor) explains the origins of the Grand Jury process as far back as its origins in medieval England, walks you through its permutations in the US in various states, and then how it became Idaho law.

There is a very real question here:

1. How the prosecution's instructions to a Grand Jury for a felony crime dictate what must or can happen with that Grand Jury's decision;
2. As the Grand Jury's outcome was effectively a charge, for a felony, then based on the law whether or not it was unconstitutional to not allow representations on BK's behalf (representations that might have swayed the outcome).

It seems fairly clear that as the Grand Jury was instructed to ask themselves "at a trial, based on the evidence before you, would this defendant be found guilty?", that BK does in fact have a constitutional right to make representations (just as in a trial), in my opinion.

I can see where this is going. Either Judge Judge will agree with the defence on this point, or if not (as I suspect he won't, simply because it's such a hot potato), the defence will be able to appeal to the Idaho Supreme Court to clarify this point of law.

As I said, as a lawyer I find it a crazy interesting argument.

As I understand it the Idaho Sup. Ct has already addressed this legislative drafting error and the defense is asking the court to overrule itself - and subject itself to legal challenges from every currently incarcerated person whose conviction stemmed from a GJ indictment as opposed to a PC hearing. The GJ and preliminary hearings are both instruments to determine whether there is probable cause to bind the defendant over for trial. A GJ indictment is not intended to be a mini trial followed by an actual trial that requires a defendant to be found guilty twice.

jmo

 

[Jurisprudence]

As I understand it the Idaho Sup. Ct has already addressed this legislative drafting error and the defense is asking the court to overrule itself - and subject itself to legal challenges from every currently incarcerated person whose conviction stemmed from a GJ indictment as opposed to a PC hearing. The GJ and preliminary hearings are both instruments to determine whether there is probable cause to bind the defendant over for trial. A GJ indictment is not intended to be a mini trial followed by an actual trial that requires a defendant to be found guilty twice.

jmo

I should clarify to say that if the defense wins at the district court level, the prosecution would appeal to get Judge Judge's ruling overruled. If the defense loses, then the defense would appeal to the Idaho Supreme Ct and ask the court to reverse itself if this makes sense. IIRC I think the defense acknowledges that the court has already ruled on this issue, possibly even more than once. But, I didn't dissect their papers. I was already too full-up of the wah-wah that's been going on. Time will tell if they get a bite.

jmo

 

[jepop]

We do have evidence of actual DNA being sent in that the very first thing the prosecutor said they wanted a protective order over was Chain of Custody related to IGG:
Specifically, the State seeks to protect the following information:
The raw data related to the SNP profile and the underlying laboratory documentation related to the development of the profile, such as chain of custody forms

Also in the same filing it says the SNP profile was developed off-site at a private lab and then it was the private lab who sent that digital information to the FBI electronically rather than this coming from ISL:
The Idaho State Police utilized private laboratory to develop SNP profile from the DNA on the Ka-Bar knife sheath. The private laboratory started using genetic genealogy to develop family tree, but after law enforcement decided the FBI would take over, the private laboratory ceased its efforts and sent the SNP profile to the FBI.

This would also align with using Othram's FGGS to get an SNP profile, which Othram needs evidence to develop the SNP profile:
Obtain SNP profiles with 100s of thousands of DNA markers, compatible with any genealogy database, with minimum consumption of evidence. Additional tools like KinSNP® & mixture deconvolution help accelerate solves.

Othram - A Revolution in Cold Case Resolution

Othram is revolutionizing how forensic cases are solved, justice is served, and families are mended.

othram.com

This is why I feel like the judge has to deny at least part of the state's motion for protective order as they should provide everything related to the handling of evidence they do intend to introduce in court, like the sheath DNA. If they didn't send Othram evidence to for instance create an SNP using FGGS, then they should have to affirmatively state that or alternatively turn over what they have if they did send Othram DNA. I personally would find it very strange to first say you want block chain of custody forms from being turned over and then saying there are no chain of custody forms, so that too makes me assume they exist.

After reading the State's court docs re Protective Order I agree that the snp profile was developed at a private lab, not the ISL, and that development of the snp profile required an actual sample of the dna from sheath button.

"The Idaho State Police utilized a private laboratory to develop a SNP profile from the DNA on the KaBar knife sheath. The private laboratory started using genetic genealogy to develop a family tree, but after law enforcement decided the FBI
would take over, the private laboratory ceased its efforts and sent the SNP profile
to the FBI."

So the FBI used this SNP profile in its IGG work,Imo. The private lab sent the snp profile to the FBI. Assuming this profile is in computerised form. But the private lab required the dna sample to first develop the snp profile is my reading.Moo

Regarding what the Protective Order seeks to protect,in addition to the fbi's work stemming from the snp profile there is this:

" The raw data related to the SNP profile and the underlying laboratory
documentation related to the development of the profile, such as chain of
custody forms, laboratory standard operating procedures, analyst notes,
etc..."

However, further on:

"There were two types of scientific tests conducted with respect to DNA that fall
within the purview of Rule l6(b)(5). "

"First, law enforcement used STR DNA analyses to compare the DNA on the
KaBar knife sheath to Defendant’s father and then to Defendant. As required by Rule l6(b)(5), the State has provided the reports from those scientific tests.The
State also provided other information related to the STR DNA analyses because
the State plans on using that information at trial. See, e.g., I.C.R. l6(b)(4). "

"Second, the private laboratory developed the SNP profile from the DNA on
the KaBar knife sheath. As requiredby Rule l6(b)(5), the State will
produce the report that documents that DNA test. Rule l6(b)(5) does not
require the State to disclose how the SNP profile was used..."

So the State is saying, Imo, that the report documenting the dna test performed to produce the snp sample is discoverable, however the revelation/naming of the lab where the snp profile was devloped is not, Imo.

Above excerpts all from

https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/061623+States+Motion+for+Protective+Order.pdf

Affidavit by Rylene Nowlin confirms that the ISL does not do snp analysis from dna samples:

"8. I affirm the ISPFS laboratory does not perform single nucleotide polymorphism
(SNP) analysis. SNPs are single sequence variations in the DNA at specific
points.SNPs are not as highly variable between individuals as STRs and can be
used in ancestry studies.

9. I affirm STR data and SNP data cannot be directly compared."

https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/071423+Affidavit+of+Rylene+L+Nowlin.pdf

 

[jepop]

[RSBM for focus]

This is why I feel like the judge has to deny at least part of the state's motion for protective order as they should provide everything related to the handling of evidence they do intend to introduce in court, like the sheath DNA. If they didn't send Othram evidence to for instance create an SNP using FGGS, then they should have to affirmatively state that or alternatively turn over what they have if they did send Othram DNA. I personally would find it very strange to first say you want block chain of custody forms from being turned over and then saying there are no chain of custody forms, so that too makes me assume they exist.

RBBM:
"This is why I feel like the judge has to deny at least part of the state's motion for protective order as they should provide everything related to the handling of evidence they do intend to introduce in court, like the sheath DNA"

The State's argument is that the SNP profile, developed in a private lab, is completely separate from the STR profile devloped by the ISL. The only evidence that the P will produce as evidence in court is the STR dna analysis. As confirmed by the Manager of the ISL, SNP and STR anlyses are completely separate procedures, cannot be compared with each-other. There is no cross over. Moo

https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/061623+States+Motion+for+Protective+Order.pdf

https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/071423+Affidavit+of+Rylene+L+Nowlin.pdf

 

[girlhasnoname]

Motion to Dismiss is off the agenda for Friday, although second motion to stay proceedings is still good to go.

https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/081023-Amended-Notice-of-Hearing.pdf

Do we know why the motion to dismiss is off for Friday? Is Judge JJ still mulling it over or what?

 

[jepop]

Do we know why the motion to dismiss is off for Friday? Is Judge JJ still mulling it over or what?

We don't know. Maybe Judge is still considering but somehow I doubt it - he's had time enough Imo.

The D just removed it from their notice of hearing about a week ago now according to the filings. Because the 2nd motion to stay proceedings is going ahead, it makes me wonder if a non-public hearing of motion to dismiss has already taken place and been dealt with in some way. Or alternately that the D removed the motion from their notice because they have since found something else on which to base their motion to dismiss, but no time to introduce that by Friday. We should watch the COI page to see if any additions are added in retrospect re the former scenario. Moo

 

[NextSprint]

A little trick is...

1. Instead of navigating directly to the site. Use Google to find the exact thing that you're looking for.

2. When you find the link in Google. On it there should be a 3 dot link/button hovering just to the right of it. Click it.

3. The 'More Options' menu will pop up and you'll see "Share" and maybe "Save" and/or "Remove Results". You don't want any of those. We want to find 'Cache'. If it's not there click on the down arrow circle button.

4. Choose the 'Cache' option from there. You'll get the latest version of the page since Google crawled it and stored it on THEIR servers. That doesn't have any silly IT imposed restrictions.

My directions make this seem like a much more involved process than it actually it is. In reality it takes only a second longer than click on the link itself.

I will try it! Thank you. I find it so strange and arbitrary how some sites allow access from Europe and some don't.

 

[NextSprint]

I should clarify to say that if the defense wins at the district court level, the prosecution would appeal to get Judge Judge's ruling overruled. If the defense loses, then the defense would appeal to the Idaho Supreme Ct and ask the court to reverse itself if this makes sense. IIRC I think the defense acknowledges that the court has already ruled on this issue, possibly even more than once. But, I didn't dissect their papers. I was already too full-up of the wah-wah that's been going on. Time will tell if they get a bite.

jmo

Fascinating play... So either way, it is likely to go up the judicial chain. I wonder how the Idaho Supreme Court decides whether or not to take appeals. In the English system you need permission to appeal, but it's not difficult to obtain if you actually have an argument that needs to be heard.

Also, as it's touching on a constitutional right, I can just see the idea forming down the road that this could be a US Supreme Court issue as well. If Idaho happens to be wrong on its interpretation of GJ procedure then it would - as you say - have huge implications for anybody ever charged and convicted by one.

 

[AnnieAnnieAnnieAnnie]

I will try it! Thank you. I find it so strange and arbitrary how some sites allow access from Europe and some don't.

As far as I know, it's because some sites will comply with EU privacy and data regulation rules (those are the ones you can access) whereas some sites won't and so they just don't allow visitors from Europe.

 

[Justice101]

Bryan Kohberger's Next Hearing Could Doom His Defense​

MSN

In a hearing on Friday, his attorneys will argue two motions: a motion to stay the trial and a motion to compel prosecutors to share certain evidence. The judge's decision on whether to grant the motions or not holds a big impact on the outcome of Kohberger's trial.

The motion to compel is an attempt by the defense to persuade prosecutors to share various evidence, such as all communication between lab personnel and any other party related to biological testing in the case, all documents related to genetic and genealogical testing, including documents related to samples from "unknown" males that were identified in the reports, any logs related to unexpected DNA results and "corrective actions" and other requests.

Palm Beach County, Florida State Attorney Dave Aronberg told Newsweek he expects the judge will grant a portion of this request, although it is uncertain which part.

However, if the judge denies the motion to compel, it would be a "big loss" for the defense, according to Aronberg.

"They don't really have much else. That DNA evidence is damning, and [the defense] has to come up with some sort of explanation. Faulty testing and collection is a common defense, but they need to have access [to the evidence]," Aronberg said. "They want details so they can punch holes in it."

To try and find some email comment like "I think the DNA sample number is 8987930-5 but will have to double check" is the sort of (inconsequential) fodder the defense is desperate to find.

They can't argue the results and the science.. .all they can argue is human error either in collection, identification, contamination, COC transfer or testing procedure.

The judge will probably allow this motion of discovery IMO

 

[Justice101]

To try and find some email comment like "I think the DNA sample number is 8987930-5 but will have to double check" is the sort of (inconsequential) fodder the defense is desperate to find.

They can't argue the results and the science.. .all they can argue is human error either in collection, identification, contamination, COC transfer or testing procedure.

The judge will probably allow this motion of discovery IMO

Or subpoena the testing lab to testify and then ask them: "Have you ever had contamination in samples and still reported the results?" or "Have you ever had non-conformances when your laboratory was audited on its procedures?"

Of course the answers to all those are YES.. that is the case for ALL LABS...and all companies. It's a fact of life. From those questions having nothing to do with this special sample.... they will try to INSINUATE that the lab in general is careless and sloppy.

It's up to the prosecution to cross examine and show the lab's 99.5% in compliance results to put things in proper perspective.

In the end, IMO, the Defense's schemes at insinuation will not work.

 

[ArianeEmory]

Randomly: I’m listening to the LISK podcast right now, and they’re interviewing the creators of the Killing Season doc. One of them just dropped a stat that the average age of a serial killer at the time of their first kill is “28 and a half”. No source was provided and I’ve never heard that stat before (if anything I feel like forensic genealogy is showing us that a lot of dudes start murdering women much younger—although perhaps they don’t always go on to be SKs).

Anyway, the age jumped out at me because of BK.

 

[Boxer]

There is no error in the DNA, its BKs.
They are looking for error in procedure.

Completely different thing.

 

[10ofRods]

Can we dispel the notion that there's something inherently evil about a sample or the sheath being sent offsite to Othram labs (after local processing) for genetic genealogy processing?

They are not exactly new to this and the evidence they produce has held up in dozens of cases... (link contains list of solved cases)

Recent Casework | Othram - A Revolution in Cold Case Resolution

Browse Othram's most recent casework.

othram.com

If I had access to LexisNexis I'd likely be able to find even more.

Can anyone cite any successful legal challenges to the above?


MOO

It's not "evil" but it IS consumptive testing. IIRC, we have learned that there wasn't a ton of DNA on that sheath. SO, I do believe that in most criminal matters, the Defense is allowed to do its own testing (unless the State used up the entire sample - which they ought not to do unless a Judge allows it). This can sometime mean that the Defense sends experts to a lab process where both sides attend.

This would involve taking the actual bio-sample from the sheath and putting it through the DNA sequencer, which would then spit out a digital record of the subject's genome as shown by that sample or those samples. It's rare to run only one sample - but it's also rare and usually against criminal procedure to use up all the sample without the Defense getting to at least watch.

I don't know exactly what the Defense is claiming about this "chain of custody" issue, so while I have LexisNexis, I wouldn't know where to begin to look this up.

There are plenty of legal challenges when the Defense doesn't get to do its own testing on evidence.

American Bar Association's overall take on this matter.

IMO.

 

[10ofRods]

There is no error in the DNA, its BKs.
They are looking for error in procedure.

Completely different thing.

Exactly.

I don't think the Defense is claiming there were errors in ISL's processing of the DNA.

They are objecting to using Othram's database of random people who submitted both their family trees AND their DNA results to Othram. While it would be impossible for a Kohberger to match Bryan Kohberger by purely random means (so the Defense, I think, has a weak argument), it is certainly possible to claim that the Defense has a right to know who this random person is (I disagree that they have the right to someone's medical files without that person's consent to send the files directly to the Defense and I think the Judge will agree with me).

I hope. It's a moot point at this time, and to me, no different than using a phone book to look up every person named Hilaria Houseman (or whatever) after finding a business card at a crime scene. Surely it's okay for LE to use ordinary resources in their investigations?

The Defense would do better to claim that it, too, wants to submit the same sample to Othram and thereby get the name of this hapless person who is related to Kohberger - but I believe the Judge should block them from that intrusive and pointless activity.

Indeed, since by now, the Defense has the read-out of Kohberger's DNA, they could indeed just submit to Othram themselves - BUT, they likely won't because - the same result will occur. It will lead directly back to Bryan Kohberger, whose buccal swab has already settled the issue.

To me, this is an attack on basic LE investigative techniques (such as dialing phone numbers, doing internet searches, submitting known DNA to a DNA registry, etc).

IMO. But it's a strong opinion.