Malkin: DNA deception: What the Daniel Holtzclaw jury never heard
Daniel Holtzclaw with Rocky Gregory

Malkin: DNA deception: What the Daniel Holtzclaw jury never heard

Posted January 10, 2017 12:44 PM by Michelle Malkin Daniel Holtzclaw with Rocky Gregory
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The Oklahoma City police department is blocking Twitter users and Facebook commenters who send them eye-opening information about the Daniel Holtzclaw case.

okc police dept twitter

They can keep blocking, but I’ll keep reporting — and the “Michelle Malkin Investigates” team at CRTV.com will continue to dig deeper into the deeply flawed police investigation and prosecution of the former OKC cop. As we first showed viewers in our two-part series, “Daniel in the Den,” last month, the DNA evidence that was critical in securing Daniel’s convictions was no “smoking gun.”

It was more like smoke and mirrors. And now there are new shocking details about the police detectives’ careless handling of that DNA evidence I can share with you that should make every forensic expert cringe.

But first, a context refresher: Out of an original pool of 19 females and one male (almost all of whom were procured by police investigators using questionable interview tactics after accuser Jannie Ligons went public with her shaky sexual assault claims), Oklahoma City sex-crimes detectives Rocky Gregory and Kim Davis narrowed down the field of accusers to 13. Seven, including the male, told such preposterous stories that the cops were forced to reject them out of hand. One of those seven, Shaneice Barksdale, was prosecuted for lying to police. Of the remaining 13, the jury rejected five of the accusers’ stories and cleared Daniel of their charges (18 out of 36 total).

Gregory and Davis preemptively told accusers they were searching for sexual assault victims of a “bad guy” on the police force and badgered women who repeatedly had denied they were victims of any sexual improprieties, refused to look at line-ups, or described an alleged attacker as “short” and “black” or “dark-skinned” (Daniel is 6”1’, fair-skinned, and half-Japanese).

Out of the eight remaining accusers’ claims and alleged crime scenes, there were zero corroborating witnesses and zero direct forensic evidence. None. The Oklahoma City police department’s crime lab identified what it characterized as “epithelial cell” DNA from one lone accuser — the troubled 17-year-old girl with a history of violent crime who called Daniel a “hot cop.” The teen’s mom had filed a missing persons report and assault and battery complaint against her daughter on the day Daniel encountered her. Her trace DNA became the linchpin in the case.

We reported on how Daniel had searched the purse of the 17-year-old accuser whose skin cell DNA was later found on the zipper of his uniform pants (the only area that had been tested).

We brought you leading DNA forensic expert and Wright State University professor Dan Krane's touch DNA demonstration, which showed how easily trace amounts of DNA — a billionth of a gram! — can be transferred indirectly from one person to an item to another person.

Dr. Krane also noted in my interview with him that the crime lab’s identification of multiple unknown DNA profiles from the extensive testing on Daniel’s car interior speaks to how easily DNA can be transferred and transferred in a way that isn't necessarily associated with a crime.”

Yet, sex-crime detectives Rocky Gregory and Kim Davis repeatedly claimed in my interview with them that indirect DNA transfer “never happens,” is “hard to get,” is “very rare,” and “almost impossible.”

We pointed out the glaring falsehood in the concluding arguments of prosecutor Gayland Gieger, who baselessly claimed that the 17-year-old accuser’s skin cell DNA came from “the walls of her vagina” when, in fact, no serological test had been conducted by the crime lab to identify the source. 

Holtzclaw Transcript 01
[Transcript | Trial of Daniel Holtzclaw]

Gieger claimed to Oklahoma City TV station KFOR a week after our “Daniel in the Den” series aired last month that “the fluid containing the skin cells was absorbed into the pants.” But the state’s crime lab expert, Elaine Taylor, herself testified under oath that, “the only thing I can tell you is it is a biological material that originated from” the teenager, and “how it was put there or how it got there, I wasn’t there, I didn’t see what happened so I can’t really tell you exactly what happened.”

Holtzclaw Transcript 02

[Transcript | Trial of Daniel Holtzclaw]

Holtzclaw Transcript 03

[Transcript | Trial of Daniel Holtzclaw]

Since our series aired, Gieger has now changed his tune to claim that “there is no test” to determine if genetic material came from vaginal fluid. So how and why did he claim that the 17-year-old’s DNA “was transferred in vaginal fluid” at trial? In any case, there are other tests and procedures that would have helped clarify where the DNA came from — but the OCPD crime lab failed to perform them. No alternative light source (e.g., fluorescing) was used to test for the presence of bodily fluids. No amylase test for saliva was conducted. Nor did Taylor test any other areas of the pants to rule out indirect DNA transfer.

We also reported on the bombshell discovery of an unknown male’s DNA on Daniel’s pants, which the police detectives, prosecutors, crime lab witness, and the defense team itself all had neglected to see in the DNA results. It’s information the jury never had.

But there’s much more DNA deception that the Holtzclaw jury never heard.

Meet Erica Fuchs, a biologist with a lab research specialty in DNA. She has an undergraduate degree in biology from Harvard University; a Master of Science degree in botany with a minor in biochemistry from Iowa State University, where she conducted research involving gene cloning, sequencing, and polymerase chain reaction to amplify DNA; and has worked with DNA in a genetic engineering lab and for a corn genetics project.

erica fuchs
[Erica Fuchs]

Fuchs also worked as a victim's advocate at a domestic violence/ sexual assault shelter, including as the victim's advocate on a Sexual Assault Response Team (SART).

After she read an article about Holtzclaw’s sentencing in January 2016, Fuchs took an interest in the quality of the DNA evidence presented at trial. “I wondered why Daniel was convicted of sexually assaulting 8 women out of 13 whose allegations went to trial,” she recounts, “when there was only forensic evidence from one individual. I also learned that there were other people who made false allegations against Daniel, so their allegations never went to trial.” Drawing on peer-reviewed scientific journal articles published as recently as the fall of 2015, Fuchs recognized that non-intimate skin cell DNA transfer to the fly of Daniel's uniform pants was a reasonable explanation, like his defense team said.”

Fuchs learned from news coverage of the trial that the DNA samples from the fly of Daniel’s uniform pants came from a mixture of more than one person and that the prosecution had claimed that the DNA did not come from Daniel. She requested the DNA lab reports from the Holtzclaw family in the spring of 2016 and examined the test results of the four DNA samples taken from the outside and inside of the pants fly area.

“When I looked at the genetic testing results for the first two samples, right away I saw that they contained a Y chromosome,” Fuchs told me. The Oklahoma City PD’s DNA analyst ruled out Daniel as a contributor. But neither the crime lab analyst, nor the prosecutor, nor the police detectives, nor Daniel’s original defense team disclosed the presence of the unknown male’s DNA on Daniel’s pants at trial.*

The significance of her finding was clear to Fuchs: “This meant that a non-sexual explanation, without any vaginal fluid, was also a reasonable explanation for the presence of skin cell DNA matching the female teenager.”

As Dr. Krane demonstrated on our show, a simple handshake can result in indirect transfer — and it’s entirely possible for Person A to shake hands with Person B, and then Person B to transfer Person A’s DNA onto his/her clothes without transferring his or her own DNA onto his or her own clothing.

dan krane michelle malkin mmi daniel in the den
[Dr. Dan Krane demonstrates to Michelle Malkin how easily DNA transfer can occur.]

Fuchs adds another crucial observation: “During the interrogation video,” she notes, “you can see that both Detectives Kim Davis and Rocky Gregory handled pens, then gave them to Daniel to use, and he then touched his pants frequently during the interrogation.”

“This created the possibility for DNA from both detectives to transfer to Daniel's pants,” Fuchs observed.

And get this: “Det. Gregory also placed his bare hand in the evidence bag before Daniel put his uniform pants and belt in the evidence bag,” Fuchs pointed out to me.

At the 4:36-mark in the interrogation video, Det. Davis hands Daniel a pen.

kim davis daniel holtzclaw

At 21:19, Det. Gregory hands Daniel a pen.

kim davis rocky gregory daniel holtzclaw

At 2:03:34, Det. Gregory handles Daniel’s clothing and a paper evidence bag with his bare hands, while Daniel takes off his uniform and unzips and takes off his pants and belt.

rocky gregory daniel holtzclaw

At 2:03:52, Det. Gregory shoves his bare hand into the bag and stirs his arm around to open the bag before Daniel places his pants and belt in it.

rocky gregory daniel holtzclaw

Watch the full interrogation video:

Crime scene expert Dick Warrington, writing in Forensic Magazine, warns against the contamination possibilities that accompany mishandling of evidence. Even with gloved hands, direct and indirect DNA transfer is a danger:

In situations where you are collecting DNA, the key thing is to guard against contamination. Testing has become so sophisticated that we can identify DNA in very small samples, but it is very easy for the sample to become contaminated. First of all, you have to wear gloves when you are collecting evidence, but that’s just the first step. If you pick up one piece of evidence and then pick up another piece of evidence you can transfer evidence from the first item to the second item. You can avoid this kind of cross-contamination if you remember to change your gloves before handling each piece of evidence. You can also transfer evidence if you pick up an item then touch your face or hair, etc., with your gloved hand and then touch the item, so be aware of what you are doing at all times.

Even coughing and sneezing around evidence can pose contamination risks, which is why Warrington advises wearing a mask. And more:

Also avoid touching areas where you might find DNA. Don’t grab an item the way you—or the suspect—would normally grab the item. If DNA is present, you’re likely to find it in this spot, so protect it by not handling it. Also, when possible, use disposable tools, such as disposable tweezers, to handle evidence. If you don’t have disposable tools, clean the tools thoroughly between dealing with each piece of evidence to avoid cross-contamination.

None of those precautions were taken by the sex-crimes detectives in their two-hour questioning of Daniel, after which Det. Gregory placed his bare hands outside and inside the evidence bag, where he stuffed Daniel’s pants and belt together.

Fuchs reasons that “if the teenager's DNA were on Daniel’s pant legs, some of it could have transferred to the fly of the pants while they were jostled in the evidence bag. If DNA from the detectives were also present on the uniform pants, that could create a mixture of DNA from several individuals, including the teenager.”

Dr. Krane expanded on this point in my interview with him at Wright State University:

MALKIN: Let's take the crime lab at its word that Daniel Holtzclaw is excluded. If there's an unknown male there, there are several possibilities that one could entertain. One, that he also sexually assaulted a male, even though there has been no history or no allegations that he had done so. Another possibility would be that this raises again the issue that in fact both that unknown male’s DNA as well as the 17-year-old’s was a result of transfer DNA. Does that sound reasonable?

KRANE: Absolutely. The sky is literally the limit in terms of coming up with hypotheses about how those other people’s DNA could have come to be associated with that evidence sample. It could have been through transfer. It could have been because they were associated with the 17-yearold’s in the first place before the transfer to the fly of the pants ever even occurred. It could be because Daniel Holtzclaw had shaken somebody else's hand and then transferred it to his fly at some point later in the day. It could be because Daniel Holtzclaw had bumped into a table top where somebody else had some of their DNA present and it got picked up that way. Again, the only constraints on the hypotheses that you could have are your imagination.

Dr. Krane also emphasized the importance of “substrate controls,” samples or swabs that labs take on areas of a piece of evidence away from obvious stains or locations where DNA has been detected. The idea is to gain better understanding of how a stain or DNA evidence might have arrived at its location. If skin cell DNA had been detected on Daniel’s pant legs or pockets, for example, it would have bolstered the case for innocent transfer.

As Dr. Krane explained:

A substrate control would have been enormously helpful in terms of painting a picture about what the results actually mean. How incriminating? How suspicious are those results on the fly in the context of what we see on the rest of that article of clothing? I think that would have again given us some very important insights. If the 17-year-old's DNA was not found on any other place on the pants, but the fly, I'm thinking that lends some pretty strong support to the prosecution's theory of the case. If in contrast it was found in other places, if inside the pants pocket for instance, I think it sheds a whole different cast on the interpretation of that one evidence sample.

But Det. Davis scoffed at the notion that other parts of Daniel’s uniform should have been tested in my interview with her and Det. Gregory. She views the forensic analyst’s role as that of a victim’s advocate — only testing areas to confirm an accuser’s story. That’s junk science, not sound science:

DAVIS: We go a lot with the victim's allegations. If she alleged, "He put it in my mouth and I spit on his knee," I'm going to test his knee. If there's not anything that points to why we should test the knee of his pants, we just don't do it.

MALKIN: You focused on the crotch area because you were following the lead of what these victims had said?

DAVIS: Right.

And more:

GREGORY: We just tell them what we're looking for. They're the ones that go through the test. How they do it, how they go about to try to extract the DNA profile, they’re the wizards at that.

DAVIS: That's over our head.

MALKIN: Right. You tell them what you're looking for. They narrow their testing based on what you tell them to look for?

DAVIS: Right. We tell them. At the first we go, "We're looking for DNA. Let's check the crotch area." As things develop we stay in contact with them. If a victim said, "Hey, test the cuff," then we call them and say, "We've got a victim saying this, test this."

As we showed you in our series, both Det. Davis and Det. Gregory unequivocally and categorically insisted transfer DNA was not possible and that there was no reason for substrate controls:

MALKIN: Is it possible that there's an innocuous and completely non-nefarious reason that the 17-year-old's DNA was on his pants?

DAVIS: On the inside of his pants? No.

GREGORY: No.

MALKIN: He couldn't have gone to the bathroom, put his hands down there?

GREGORY: No.

MALKIN: Were the pockets of the pants tested?

DAVIS: No.

MALKIN: Why not?

DAVIS: Why?

Why?

Perhaps DNA crime lab analyst Elaine Taylor’s boss, Campbell Ruddock, can answer that question for the detectives.

Perhaps other DNA analysts across the country with expertise in trace/transfer/touch DNA might care to weigh in.

And perhaps someone else in the media or any Oklahoma elected official or Oklahoma taxpayer can pose these questions to the information control freaks at the Oklahoma City Police Department:

If the unknown male’s DNA is not Daniel’s, whose is it?

If it is Daniel’s, how does that square with prosecutor Gayland Gieger’s bizarre claim that the absence of his DNA somehow meant that the skin cell must have come from the accuser’s vaginal fluid? (See Meakin and Jamieson or Cale et al., at 196, 202 for an informed discussion of “wearer DNA” and secondary DNA transfer. See Helmus et al. 2016 for scientific documentation of how tertiary DNA transfer can occur in scenarios very similar to the one Daniel’s defense team laid out at trial.)

If the teen accuser’s DNA could only come from vaginal sexual assault, as the sex-crimes detectives adamantly insisted to me in our interview and as prosecutor Gayland Gieger told jurors in his closing argument, then where exactly did the DNA mixtures found on Daniel’s pants that included an unknown male’s DNA (as well as multiple other contributors) come from and how might they have possibly gotten there?

And if all of these unanswered questions don’t create a heap of reasonable doubt in the minds of reasonable people, what does?

You can tweet this article to the Oklahoma City Police Department at @okcpd, print and fax it to the Oklahoma County District Attorney’s office at (405) 235-1567, and e-mail it to the OCPD’s crime lab manager Campbell Ruddock at campbell.ruddock@okc.gov.

____________________

As Fuchs explains, at trial it was "never stated overtly that epithelial cell DNA from at least one unknown male was on the fly of the uniform pants, given that the State's forensic analyst, Ms. Taylor, had excluded Daniel from being a contributor."

In one of the DNA samples, a complex mixture with epithelial cell DNA from at least three individuals, Taylor simply dismissed the presence of a Y chromosome as minor and falling below what's known as "the stochastic threshold" because there was very little DNA. But in a separate sample, containing DNA from at least four individuals, the Y chromosome was above that threshold — a fact that neither Taylor nor anyone else mentioned to the jury at trial.

The prosecution was also adamant that Daniel was not a contributor to any of the four DNA samples from the fly of the uniform pants. This belief factored heavily into their argument that DNA matching the teenager's profile transferred in her vaginal fluid, despite the lack of body fluid testing. Yet could Daniel be excluded as a contributor to the DNA samples?  That exclusion, Fuchs told me, "turns out to be a subjective and not an objective conclusion."

Subscribe to watch the “Daniel in the Den” two-part series at CRTV.



Editor's note: An earlier version of the last paragraph referred to the Oklahoma City District Attorney's office. The contact information is for the Oklahoma County District Attorney's office. This piece was updated with a footnote after publication.