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Richard Leon Wilbern arrives at the Kenneth B. Keating Federal Building, 100 State St., on Friday, Jan. 27, where he was arraigned on charges related to the 2003 robbery of the Xerox Federal Credit Union in Webster where one man was fatally shot and another was wounded. Wilbern’s attorney is challenging crucial DNA evidence in the case. (Bennett Loudon)
Government attorneys say arguments for excluding DNA evidence in the fatal 2003 Xerox credit union robbery case are faulty and misleading.
In a 14-page filing submitted Thursday, Assistant U.S. Attorney Douglas E. Gregory claims that DNA found on an umbrella at the crime scene matched defendant Richard Leon Wilbern with astounding certainty.
“The probability of finding that match again was 1 in 6.8 trillion people, or about 1,000 times the population of the earth,” Gregory wrote in the court papers.
Wilbern has been jailed since Sept. 27, when he was arrested and accused of the robbery, during which Wilbern allegedly fatally shot Raymond Batzel and wounded another man.
Hardly novel
Wilbern’s attorney, Assistant Federal Public Defender Anne Burger, is challenging the validity of the DNA evidence, claiming the method used to test it “is unreliable.”
The prosecution’s DNA evidence is based on what is called low copy number (LCN) testing conducted by the New York City Office of the Chief Medical Examiner (OCME).
“LCN testing is not generally accepted in the scientific community as OCME is the only publicly funded lab in the United States that performs this type of unusual testing,” Burger claimed in a Jan. 26 memo.
LCN testing analyzes miniscule amounts of DNA that have been “amplified.”
Burger also claimed DNA results obtained with LCN testing are not reproducible. And she noted an investigation by the New York state Office of the Inspector General that questioned OCME’s LCN testing method and whether OCME followed the correct procedures for LCN testing.
In his response to Burger’s memo, Gregory wrote that the LCN method used in the case “is hardly novel.”
“Given the incriminating weight of this DNA evidence, it is not surprising that the defendant would object to the reliability of LCN testing,” Gregory wrote.
But, he pointed out, the same arguments used by Burger “have been routinely rejected.”
The most recent example, Gregory said in his filing, is the decision by the U.S. Court of Appeals, Second Circuit, in the United States v. Johnny Morgan.
The Second Circuit’s decision affirmed Morgan’s conviction in a summary order, but Gregory focused on the underlying lower court decision that allowed the DNA evidence obtained with the LCN method.
Burger cited the same case in her Jan. 26 memo, noting that the Second Circuit panel’s summary order does not have a precedential effect.
“We express no opinion on the propriety of admitting the results of LCN testing in other cases and note that OCME is discontinuing its use of LCN testing in favor of newer technology that produces reliable results in most of the sensitivity range for which it previously employed LCN testing,” the Second Circuit panel wrote in the order.
No limit
Burger and Gregory disagree over the fundamental status and usefulness of LCN testing.
Burger claims LCN is “not traditional testing” and “not generally accepted in the scientific community.”
“Nothing could be farther from the truth,” Gregory wrote in his memo.
“DNA evidence obtained through the use of LCN testing is fairly commonplace and the methodology behind it has repeatedly been determined to be scientifically reliable,” he wrote.
Even the Innocence Project, which focuses on freeing wrongly accused defendants, has advocated for the use of LCN testing, Gregory wrote.
Gregory was referring to an amicus brief filed with the District of Columbia Court of Appeals by the Mid Atlantic Innocence Project and the Innocence Network in 2011 urging the court to expand the interpretation of the District of Columbia’s post-conviction DNA testing statute.
But Jeremy Merkelson, one of the attorneys who wrote the amicus brief, questioned its relevance to the Wilbern case.
“Just because LCN evidence could have been useful in one case does not automatically follow that it is useful in all cases without a little more exploration of the facts,” said Merkelson, a lawyer in Washington, D.C.
Gregory did not respond specifically to Burger’s claims about the questionable practices of former OCME scientists, but he detailed the extensive accreditations, certifications and auditing to which the lab is subject.
And he wrote that LCN testing can be used on any amount of DNA, no matter how small. In May 2014, he wrote, the DNA Subcommittee of the New York State Commission on Forensic Science determined that “scientifically, there is no lower limit for the quantity of DNA that must be met before LCN techniques can be reliably employed.”
“There is simply no valid argument that can be made for the proposition that state and federal courts have found LCN testing to be scientifically unreliable and therefore inadmissible at trial,” wrote Gregory, who listed 15 cases to back up his claim.
In her filing, Burger noted that OCME “abandoned” LCN testing, suggesting it was because of problems with accuracy and reliability. But Gregory wrote in his filing that the lab is simply switching the type of testing kits used to perform the very same LCN testing they have always done.
“Contrary to the defendant’s insinuation, OCME’s decision to move to the new testing kit was not made because of any questions they had regarding the reliability and/or validity of previous LCN testing methods,” Gregory wrote.
