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Lawyer says district attorney kept quiet on change in DNA evidence; she denies it

posted Dec 28, 2016, 10:09 AM by Resty Manapat

Last August, District Attorney Bonnie Dumanis sent a short letter to San Diego County’s criminal defense lawyers. 

Addressed “Dear Counsel,” the 1¼-page letter discussed changes in how some DNA samples — those that were a mixture of biological material from two or more people  — were being interpreted by crime labs. 

Guidelines for analyzing that evidence had changed in 2010 when a national scientific group that works on forensic DNA testing issues had recommended new standards. 

The letter invited attorneys who believed they had a case from before 2010 that could be affected by the change to contact the Conviction Review Unit, a new division Dumanis established this year to examine innocence claims from convicted criminals. 

What the letter didn’t say was that five years earlier the San Diego Police Department lab had told the District Attorney’s Office in a memo about the changes in the guidelines. 

That May 2011 memo noted that “it was likely the new SDPD guidelines will result in more samples that cannot be interpreted” to say an individual’s DNA was found. 

Dumanis’ office informed the region’s defense lawyers about the memo this past summer — weeks after a defense attorney seeking a new trial for a gang member convicted of murder in 2011 won a ruling that may reopen his client’s conviction, based in part on the changed DNA guidelines. 

The lawyer, Matthew Speredelozzi, contends the District Attorney’s Office concealed the memo. 

“The DA suppressed this information and this issue because they do not want to have to review old cases,” Speredelozzi said. 

In an emailed statement, Dumanis spokeswoman Tanya Sierra said that was not the case. She said the new guidelines by the Scientific Working Group on DNA Analysis Methods were well publicized in 2010 in the defense and scientific communities. 

“Our letter earlier this year was simply a reminder to the defense bar and part of an ongoing, increasing effort to review convictions thoroughly and work cooperatively with them,” Sierra said. “The timing of the letter has no relationship to the Dominguez case.” 

Sierra said the District Attorney’s Office has received only one request from a defense attorney seeking a recalculation of “mixture DNA,” and that came before Dumanis’ letter this year. 

Speredelozzi said the change in the guidelines can affect cases in two ways. Samples previously deemed to have the DNA of a suspect would now be considered to be inconclusive. In addition, population frequencies — the statistic that gives the odds that someone other than the suspect could be the DNA source — would be lower. 

In both instances, the new guidelines are more conservative and can benefit the defense. 

Speredelozzi is trying to get a new trial for Florencio Dominguez, who was convicted in April 2011 of murdering 13-year-old Moises Lopez in Mountain View Park. Dominguez was sentenced to 50 years to life for the killing. 

Speredelozzi represented Dominguez at the trial. He said the key piece of evidence against his client was a blood-soaked glove found at the scene. 

It had the victim’s blood on the outside, and inside it was DNA from four individuals — one major contributor, and three minor contributors. 

Police criminalist Shawn Montpetit testified at the trial that Dominguez was one of the minor contributors. His testimony came right at the time in April 2011 when the Police Department’s lab changed how it interpreted mixed DNA samples to conform with the new guidelines promoted by the national scientific group in 2010. 

But Speredelozzi said he did not realize the change was made until years later — in 2014, when he was working on a different case. 

As he began to work on a new appeal for Dominguez, his investigation turned up through a state Public Records Act request the May 4, 2011, memo from the crime lab to the District Attorney’s Office. 

“I never knew,” Speredelozzi said. “No one ever told me.” 

He wasn’t alone. Domenic Lombardo, a veteran San Diego defense lawyer, said the changed guidelines “were not generally known” among defense lawyers until Speredelozzi wrote a short article for a criminal defense attorneys website this past July. Lombardo is on the board of directors of the Criminal Defense Bar Association and the Criminal Defense Lawyers Club, the two major professional associations for defense lawyers in San Diego. 

“The disclosure that mixed-sample rules changed five years earlier, and that this was known to the Office of the District Attorney the entire time, was treated as breaking news in the criminal defense community,” Lombardo said. “The DA's Office may have been disclosing this evidence earlier on a case-by-case basis, but I don't think it occurred in many cases. I say this because the defense tends to share exonerating information in email exchanges, list-serves, continuing education events and publications so that we can avoid miscarriages of justice.” 

In a signed declaration in October 2015 for Speredelozzi’s bid for a new trial for his client, Montpetit said if he were to testify today under the new guidelines he could not say Dominguez was a minor contributor and could not provide any statistical odds. 

But this past February, Montpetit gave another declaration to prosecutors fighting to keep Dominguez in prison, saying the new DNA guidelines don’t render his conclusions at the trial invalid. The new guidelines are just more conservative, the criminalist said. 

Prosecutors also argue there was other evidence for guilt, including a witness who testified he saw Dominguez beat and then shoot the victim, and a beer bottle found near the teen’s body had Dominguez’s DNA. 

Deputy District Attorney Mark Amador argued in court papers that the evidence was strong and that allowing Dominguez to continue to try to reopen his case was a waste of time and resources. 

But in June, Superior Court Judge Charles Rogers said Speredelozzi had made a strong enough argument to allow the case to move forward. A hearing with testimony on the issue may be the next step, Rogers said. 

The change in DNA interpretation that’s at issue in this case is also surfacing in other parts of the country. Earlier this year, Texas began systematically reviewing thousands of cases that could be affected by the new interpretation guidelines. 

Prosecutors, defense lawyers and crime labs around the state are working together, said Lynn Garcia of the Texas Forensic Science Commission, which is coordinating the work. They’ve even gone so far as to post notices in state prison libraries to inform inmates about the issue and telling them how to contact officials if they think it might affect their cases. 

“Every prosecutor I’ve talked to here feels they need to get the notice out there,” Garcia said. “The feeling is DNA is the gold standard, and we want to make sure it stays that way.” 

In court papers, Speredelozzi wrote that is the approach prosecutors here should take but have not. “Instead of launching an investigation to determine and identify those affected, it has responded by denying that a problem even exists,” he wrote.

Source: The San Diego Union-Tribune