United States v. MacDonaldUnited States v. MacDonald
ORDER
This matter is before the court on Jeffrey MacDonald’s Motion Pursuant to the Innocence Protection Act of 2004,
RELEVANT PROCEDURAL HISTORY
In 1997, MacDonald filed a motion, pursuant to
In one of his appeals from this court’s 1997 order, MacDonald sought аuthorization to file a successive § 2255 motion. He specifically stated the following:
Further, MacDonald has requested that the District Court order the government to give him access to certain items of physical evidence in the case which, if analyzed properly, would demonstrate his actual innocence. These items, which are documented in the handwritten laboratory bench notes of the Army and FBI Lab examiners, consist primarily of hairs and blood debris found in extraordinarily telling locations — namely under the fingernails of the victims, on their hands, on their bodies, or on their bedding. The lab notes reveal that the government’s lab examiners had attempted to source these hairs by comparing them to known hairs taken from the victims and from Dr. MacDonald, but they were never able to match these hairs to any member of the MacDonald family, resulting in the obvious and highly exculpatory conclusion that these strategically-located hairs came from outsiders, thus corroborating MacDonald’s account. With respect to certain blood debris found under the fingernails or hands of the victims, the government was able to determine the blood type in some instances but not others. See Affidavit of Philip G. Cormier No. 2— Request for Access to Evidence to Conduct Laboratory Examinations — in Support of Jeffrey R. MacDonald’s Motion to Reopen28 U.S.C. § 2255 Proceedings and for Discovery ... which describes these hairs and blood debris in detail.
MacDonald has sought access to this highly specific and crucial category of physical evidence for the purpose of subjecting these unsourced hairs and blood debris to DNA testing in an effort to establish MacDonald’s innocence by demonstrating definitively that these items did not originate from any MacDonald family member nor from MacDonald himself, but instead originated from one or more of the intruders whom MacDonald described seeing in his home on the night of the murders.
Mem. in Supp. of Jeffrey MacDonald’s Motion for an Order Authorizing the District Court for the Eastern District of North Carolina to Consider a Successive Apрlication for Relief Under
Upon consideration of the motion of Jeffrey R. MacDonald, filed pursuant to28 U.S.C. § 2244
IT IS ADJUDGED AND ORDERED that the motion with respect to DNA testing is granted and this issued is remanded to the district court.
In all other respects, the motion to file a successive application is denied.
Id.
On remand, MacDonald filed his Motion for an Order to Compel the Government to Provide Access to the [sic] All Biological Evidence for Examination and DNA Testing by his Experts [DE-73]. Therein, Mac
Without waiving his right to have access to the full universe of biological evidence that was collected from the crime scene, MacDonald has particularized for the government and the Court those exhibits, to which he initially seeks access in three spreadsheets.... [T]he process of assessing which of the presently known items are relevant to Dr. MacDonald’s factual innocence claim is a dynamic one in which evidence not previously believed to be relevant may subsequently prove relevant. For this reason, MacDonald seeks an order requiring the government to make available to his experts all of the biological evidence that was collected from the crime scene. In the event that the court initially allows access only to the items listed on the spreadsheets, MacDonald reserves his right to move in the future for access to additional exhibits which contain biological evidence based on the results of the initial testing.
Id, at 2 n. 1. The Government opposed MacDonald’s motion, arguing that the Fourth Circuit’s mandate limited MacDonald’s access to only those items of biological evidence specifically identified in his motions papers before that court.
In response to the parties’ dispute, the court ordered the following:
The court has examined carefully the parties’ respective arguments in light of the context of the appellate court’s order, and concludes that the Fourth Circuit Court of Aрpeals has mandated that the Government provide to MacDonald’s experts access to the existent and known unsourced hairs, blood stains, blood debris, tissue and body fluids specifically identified in the April 22, 1997 Affidavit of Philip G. Cormier No. 2 — Request for Access to Evidence to Conduct Laboratory Examinations — in Support of Jeffrey R. MacDonald’s Motion to Reopen28 U.S.C. § 2255 Proceedings and for Discovery, for non-destructive DNA testing in all current and existing forms including, without limitation, both nuclear and mitochondrial testing.
Accordingly, it hereby is ORDERED that the United States produce and make available to MacDonald’s experts within sixty (60) days of the date of this order the biological evidence described in the preceding paragraph so that such experts may conduct any appropriate non-destructive DNA examinations thereof. All testing of such items shall be completed prior to September 1, 1999.
MacDonald’s request for further discovery is DENIED as beyond the mandate of the Court of Appeals.
December 11,1998 Order [DE-86] at 3.
The court issued additional orders setting the parameters for DNA testing, and it commenced. On May 17, 1999, the FBI delivered almost 200 items (AFDIL Specimens 1-188) to the Armed Forces DNA Identification Laboratory (“AFDIL”) for evaluation of DNA Testing. This transfer included many items in addition to the items specifically identified in Cormier Affidavit No. 2. Compare Cormier Affidavit’ No. 2 ¶¶ 21-62 with AFDIL Report [DE-123-2] at 10-14.
c. The defendant agrees not to file any other motion for DNA testing, pending prior to the completion of the instant testing, and the filing of the report with the District Court by AF-DIL reflecting the results of that testing;
With the further clarification by the Government that this provision does not preclude the defense from ever filing a motion for DNA testing undеr the Innocence Protection Act (IPA), the defense agrees to this condition. By this clarification-the Government makes no concession with respect to the merits of any future motion which may be filed under the IPA.
January 14, 2005 Letter [DE-212-1] at 13 (strikethrough and italics in original).
The DNA report from the Department of Defense Armed Forces Institute of Pathology was issued on March 10, 2006. As the court already has exhaustively detailed in its July 24, 2014 Order [DE-354], just prior to the DNA report being issued, MacDonald filed a proposed successive
Following the Fourth Circuit’s issuance of the mandate in this case, the court scheduled a status conference, which was later continued at MacDonald’s request, to September 21, 2011. On the eve of the status conference, MacDonald through separate counsel, Christine Mumma, Director of the North Carolina Center on Actual Innocence, filed the IPA motion. Therein, MacDonald sought an order authorizing his “inspection (including microscopic inspection) of the physical evidence to identify biological evidence, and to conduct further and expeditious DNA testing of additional biological evidence that the defendant will identify after inspection of the physical evidence.” IPA Mot. [DE-176] ¶ 9.
At the previously-scheduled status conference the next day, the court directed MacDonald to provide the Government within 14 days with a list of exhibits he wished to subject to additional DNA testing. See 2011 Hearing Transcript [DE-193] at 40. On October 10, 2011, MacDonald filed his List of Trial Exhibits for Additional DNA Tеsting Pursuant to the IPA [DE-189], and attached a list captioned “MacDonald-Recommendations for Additional DNA testing-miniSTR and/or Y-STR testing” [DE-189] containing at least 79 items. As the caption indicates, MacDonald for the first time raised the issue of miniSTR testing, but did not mention “Touch” DNA. The list does not mention “Touch” DNA.
TYPES OF DNA TESTING
With respect to the evidence previously tested by the AFDIL, “DNA was extracted, amplified, and analyzed for autosomal, Short Tandem Repeats (STRs) and mitochondrial DNA [mtDNA].” [DE-119-2] at 1. “Generally speaking, every cell contains two types of DNA: nuclear DNA, which is found in the nucleus of the cell, and mitochondrial DNA, which is found on the outside of the nucleus in the mitochondrion.” United States v. Beverly,
Both STR testing (or nuclear) and mtDNA testing follow the same four-step process:
The first step is extraction. During extraction, the DNA sample is purified from any other substances contained in the sample. The second step is polymerase chain reaction (“PCR”) amplification, which makes copies of the DNA for analysis. Third, sequencing is accomplished to identify the order of [nucleotide bases] in the sample. The same analysis — extraction, amplification, and sequencing — is completed on both the known and unknown samples, adhering to certain safeguards to prevent the contamination of the unknown sample. Finally the sequencing of the unknown sample is compared to the sequencing of a known sample.
Id. at 966; see also Aff. of Terry Melton [DE-75] ¶¶ 6-8 (describing mtDNA testing); Aff. of Tina Delgado [DE-228] ¶4 (describing STR testing).
MiniSTR analysis, which was mentioned by MacDonald for the first time in his list of recommendations for additional testing, “is a methodology that may be used on degraded DNA samples to help recover information lost during conventional STR analysis.” Aff. of Tina Delgado [DE-228] ¶ 12. As Tina Delgado, the Biometrics Analysis Section DNA Technical Leader of the FBI, explains:
Degraded DNA can occur due to sample age, humidity, bacteria, chemicals, ■and/or environmental insults that affect the quality of the DNA. Degraded DNA often does not amplify during the PCR process, resulting in no results. Min-iSTR analysis amplifies the same loea-tions, however utilizés smaller PCR products which enhances the recovery of the information from the sample.
MiniSTR analysis should only be used when samples have been subject to degradation or the quality is poor. The DNA profiles obtained from properly preserved samples from miniSTR and conventional STR analysis will be the same. Therefore, there is no additional benefit in using miniSTR analysis over conventional methоdologies.
Id. ¶¶ 12-13. Although the use of min-iSTR methodology apparently began in 1994, a commercial kit,
The second type of testing referenced by MacDonald in his list of recommendations is Y-STR analysis. According to Delgado, ‘Y-STR analysis is a methodology that amplifies DNA from the male Y chromosome.” Aff. of Tina Delgado [DE-228] ¶ 14; see also Aff. of Christine Mumma [DE-176-1] ¶ 5 (“Y-STR testing allows for the specific identification of Y-chromosome (male) markers.”). Because the Y chromosome is passed down from father to son with little or no change, “all individuals within a mаle lineage will have the same Y-STR profile, thus limiting its discriminatory power.” Id.
“Touch” DNA also was referenced in Mumma’s affidavit filed in support of MacDonald’s IPA motion. Mumma asserts that while testing previously was typically only conducted on visible stains, now testing can be conducted even if a stain is not visible, because “[t]he transfer of just a few skin cells can now result in a detectable profile.” Aff. of Christine Mumma [DE-176-1] ¶ 7. The Government contends that any testing for “Touch DNA” would necessarily involve Low Copy Number (“LCN”) analysis. According to Delgado, LCN analysis “is an еnhancement strategy used for items of evidence potentially containing ‘touch DNA.’” Aff. of Delgado [DE-228] ¶ 8. She explains:
LCN analysis utilizes the same techniques as conventional STR analysis with modifications to increase test sensitivity including the increase of amplification cycles in PCR and post amplification purification of the DNA samples.... LCN analysis generally increases the risk of DNA typing inaccuracies and is not permitted in the [National DNA Index System (NDIS) ]. Studies have shown that LCN analysis can profoundly alter the performance characteristics of the PCR and result in demonstrable losses of fidelity and reproducibility.
Id. She explains other weaknesses with LCN testing, including that “results typically exhibit a combination of various individuals who have handled an item, not exclusively those involved in a criminal act.” Id, ¶ 10. Because of the various issues with LCN analysis, including the lack of national guidelines or technical standards governing it, the FBI Laboratory does not conduct that type of testing. Id. ¶ 11.
MacDonald proffers the affidavit of Meghan E. Clement, the Technical Director in the Forensic Identity Laboratory at Laboratory Corporation of America, Holdings (LabCorp), who does not take issue with most of Ms. Delgado’s assertions. She submits, however, that because newer kits like MiniFiler and Y-Filer have become available, the ability to develop a profile from old or dеgraded material has greatly increased, and it may not be necessary to use LCN analysis. Aff. of Meghan Clement [DE-238-21] ¶ 5.
ANALYSIS
Under the Innocence Protection Act, a person imprisoned under a federal criminal judgment is entitled to DNA testing of specific evidence related to that conviction if ten prerequisites are met.
In addition to nine other prerequisites, the IPA requires that a motion for order of DNA testing of evidence be “made in a timely fashion.”
(i) that the applicant was or is incompetent and such incompetence substantially contributed to the delay in the applicant’s motion for a DNA test;
(ii) the evidence to be tested is newly discovered DNA evidence;
(iii) that the applicant’s motion is not based solely upon the applicant’s own assertion of innocence and, after considering all the relevant facts and circumstances surrounding the motion, a denial would result in manifest injustice, or
(iv)upon good cause shown.
Here, it is undisputed that MacDonald’s motion is presumed to be untimely. He filed the motion on September 20, 2011, which was 82 months aftеr the enactment of the Justice for All Act of 2004.
Having conceded that his motion is presumed untimely, MacDonald contends that he has nonetheless rebutted that presumption. ' Specifically, he argues that (1) he has shown good cause; (2) the evidence he seeks to have tested is newly discovered DNA evidence; and (3) the denial of the motion would result in manifest injustice. The court does not agree.
MacDonald’s good cause argument appears to be premised upon the agreement he reached with prosecutors during DNA testing in 2005. To reiterate, correspon
c. The defendant agrees not to file any other motion for DNA testing, pending prior to the completion of the instant testing, and the filing of the report with the District Court by AF-DIL reflecting the results of that testing;
With the further clarification by the Government that this provision does not preclude the defense from ever filing a motion for DNA testing under the Innocence Protection Act (IPA), the defense agrees to this condition. By this clarification the Government makes no concession with respect to the merits of any future motion which may be filed under the IPA
January 14, 2005 Letter [DE-212-1] at 13 (emphasis in original). Based on this agreement, MacDonald attempts to cast blame for his delay on the Government, and characterizes the Government’s position as “disingenuous.” See IPA Additional Testing Reply [DE-238] ¶50 (“MacDonald’s motion should be considered timely because the delay in filing the motion was at the request of the Government. ... In light of [the January 2005] correspondence, the Government’s stance that MacDonald’s IPA motion is untimely is disingenuous.”). Respectfully, the court finds that MacDonald is the party who has taken the disingenuous stance.
Although MаcDonald tries to extrapolate from his agreement that any IPA motion he files should be deemed timely so long as litigation surrounding his
Nor can the court find that MacDonald has rebutted the presumption of untimelinеss because he is seeking to test “newly discovered DNA evidence.” MacDonald correctly observes that the IPA does not define the phrase “newly discovered DNA evidence.” MacDonald argues, however, that when
Even if the court accepts MacDonald’s interpretation that “newly discovered DNA evidence” under the IPA means “a newer, more accurate method of DNA testing than was available in the past, the court still cannot find that MacDonald has rebutted the presumption of untimeliness. First, Y-STR testing has been available since 2003. J.M. Butler, National Institute of Standards and Technology, Recent Developments in Y-ShoRT Tandem Repeat and Y-Single Nuoleotide Polymorphism Analysis 100 (2003). Thus, the methоdology has been available since the time the 2006 AFDIL report was filed, and MacDonald did not seek to utilize it until 66 months later. MiniSTR testing has been available since March 2007 — well before MacDonald filed the instant IPA motion.
More importantly, the record shows that Y-STR and miniSTR testing and analysis are useful mainly where conventional STR testing cannot or does not yield accurate results. See Mi. of Delgado [DE-228] ¶¶ 12-13 (explaining that “MiniSTR -analysis should only be used when samples have been subject to degradation or the quality is poor” and that because “[t]he DNA profiles obtained from properly preserved samples from miniSTR and conventional STR analysis will be the same ... there is no additional benefit in using miniSTR analysis over conventional methodologies”); ¶ 14 (‘Y-STR analysis does provide valuable information when the overwhelming amounts of female DNA prevent the detection of male DNA in lower concentration, typically in cases of sexual assault.”); ¶ 15 (“[T]he applications of [miniSTR and Y-STR] methodologies are quite specific and don’t replace conventional STR typing.”). Out of the at least 79 exhibits that MacDonald now seeks to test, approximately only 23 of them were previously examined by AFDIL.
MacDonald has had the benefit of numerous talented and dedicated attorneys over the course of this case. MacDonald and his legal team have repeatedly sought relief from his convictions over the years, often with unreliable and specious evidence. MacDonald, and his team, were aware since at least 2005 of the potential need to file an IPA motion, yet he failed to seek relief under the IPA until 2012. Given the unreliable and equivocal nature of the evidence MacDonald has proffered in the past in assertion of his innocence, the court does not find that he has shown that the denial of his motion will result in manifest injustice.
MacDonald’s motion is presumed ’to be untimely under the IPA, and he has failed to rebut the presumption of untimeliness. The motion, therefore, is DENIED.
CONCLUSION
For the foregoing reasons, MacDonald’s Motion Pursuant to the Innocence Protection Act of 2004,
SO ORDERED.
Notes
. This order presumes familiarity with the long-running history of this case and with the court’s July 24, 2010 Order [DE-355] denying MacDonald’s Motion to Vacate, Set Aside or Correct pursuant to
. In the IPA motion, MacDonald originally sought a new trial or alternatively, an order permitting him to conduct additional DNA testing. Specifically, he moved for a new trial pursuant to
. A commercial DNA kit has been likened to a chemistry set: it "include[s] all of the materials used in DNA testing and detailed instructions on how to produce results.” Jennifer N. Mellon, Note, Manufacturing Convictions: Why Defendants are Entitled to the Data Underlying Forensic DNA Kits, 51 Duke LJ. 1097, 1098 (2001). Courts have viewed kits as applications of a particular scientific methodology. See United States v. McCluskey,
. Accordingly, some commentators have observed that "Y-STR typing is in many respects the twin of mtDNA typing, which has the
. These requirements include that (1) the applicant assert under penalty of perjury that he is actually innocent of a federal crime,
. The IPA took effect on October 30, 2004.
. For at least six of these items, DNA testing results were not available because when AF-DIL examined the items, the vials appeared to be empty. See July 28, 1999 AFDIL Correspondence [DE-227-8] at 2 (listing D233, D234, D236, D237, D238, and E4 as vials that appeared to be empty). It is unclear how miniSTR or Y-STR would be useful as to those exhibits.