Second Circuit OKs Use of Now-Defunct DNA Testing Method
In United States v. Jones, the Second Circuit (Kearse, Cabranes, Sack) considered the admissibility of DNA evidence based on the “Forensic Statistical Tool” method (“FST”), which was previously utilized exclusively by New York City’s Office of the Chief Medical Examiner (“OCME”), but has since been abandoned because it does not meet the requirements of the FBI’s national DNA database. One presumes that the mode of analysis used by the Circuit will be used by district courts to analyze the new methods of DNA analysis, meaning that the case will outlive the specific facts presented.
Defendant Dean Jones was convicted of, among other offenses, Hobbs Act robbery, Hobbs Act conspiracy, and possession of a firearm (which was discharged) in furtherance of the robbery, all stemming from a robbery of a restaurant in the Bronx in December 2012. During the course of that robbery, Jones brandished a firearm and shot a bystander in the leg before fleeing the scene. He was later arrested after a short time on the lam.
The evidence against Jones at trial was overwhelming. First, the government presented cell site location data showing that Jones’ cellphone location tracked the reported movements of the robbers at the time of the robbery. Second, cooperating witness Steven Christopher testified that Jones admitted to the crime while Christopher helped Jones evade capture by the police. Third, Jones’ professed alibi—that he was visiting a relative in another state at the time of the robbery—was uncorroborated and contrary to the cell site location data. Finally, DNA evidence in conjunction with video surveillance footage placed Jones at the crime scene. Video footage showed the armed robber wearing blue latex gloves and a mask. When the robbers fled the scene, NYPD officers spotted a hat and a blue latex glove nearby. Analysis of the hat showed that it contained one source of DNA, which matched Jones’. The glove, however, contained DNA from three sources, complicating the analysis required to match the DNA. The glove was sent to OCME for analysis. OCME used an internally-developed method called FST to analyze the glove, which showed that one of the three DNA sources matched Jones’.
Prior to trial, Jones objected to the introduction of DNA evidence based on FST, contending that it was unreliable principally because it relies too heavily on generalizations and does not adequately consider case-specific variables. He also noted that OCME stopped using FST in 2017 because the method no longer conformed to the requirements of the FBI’s national database. Namely, FST did not amplify the minimum number of loci (a location on a DNA strand) during the preliminary stage of analysis, as required by the national database.
During a five-day Daubert hearing, the Government’s experts testified that FST is widely accepted in the scientific community and that OCME’s decision to stop using FST had nothing to do with its reliability, but rather the availability of a different commercially-available method. They also testified that FST resulted in a false positive only in 0.03% of cases and that FST had been validated both internally by OCME scientists and externally by the New York State Forensic Science Commission.
The District Court (Broderick, J.) denied Jones’ motion to exclude the FST evidence. The court was persuaded of the reliability of FST by its external validations and its adherence to the guidelines established by the Scientific Working Group of DNA Analysis Methods, a group run by the FBI. The court also noted that numerous New York State Court cases had addressed the admissibility of FST data, and nearly every court to consider the question found FST to be reliable and admissible. The Court held that Jones’ challenges to the FST methodology could be adequately addressed through cross-examination rather than exclusion.
On appeal, Jones again argued that the FST evidence should have been excluded as unreliable and that his conviction should be vacated. The panel swiftly rejected Jones’ arguments. Under the permissive “abuse of discretion” standard of review, the question before the panel was whether the district court’s decision has been “manifestly erroneous.” In view of the Daubert hearing and Judge Broderick’s decision, the panel found no error at all, much less manifest error. The panel further held that, even if the FST data should not have been admitted, it would still affirm Jones’ conviction in view of the other overwhelming evidence of his guilt.
The panel’s detailed recitation of the facts and procedural background of the case contrasts with its own shorter analysis. This is likely attributable to the district court’s thorough and well-reasoned analysis, and also highlights the importance of appellate standards of review. Here, the panel was limited to considering whether the district court had committed manifest error, a standard that is highly deferential to trial judges. Trial judges have broad discretion in exercising their gate-keeping function of vetting expert testimony, and appellate courts rarely disturb such decisions.
The length of the panel’s decision is also noteworthy given that the decision’s effect appears limited to Jones himself. The FST method is no longer used for DNA testing so this particular holding will likely be of limited or no precedential value in future prosecutions. And as to Jones, the panel’s analysis of the FST evidence turned out to be inconsequential because the panel concluded that any error would have been harmless in view of the overwhelming evidence of Jones’ guilt.
One takes away from this opinion that the panel felt compelled to address the admissibility of FST—an issue of first impression in the Circuit—in a published opinion, but saw no need to expound on the issue in great detail, given the harmlessness of any error, the thorough reasoning of the district court which was summarized in the opinion, and the fact that the FST method is no longer in use.
By George B. Fleming and Harry Sandick.