Consumptive testing and interlocutory watszit?
Hi, Y’all! There have been a couple of developments in the past week or so. First, the state asked permission to conduct consumptive DNA testing on several forensic samples. Next, Chad Daybell’s attorney, John Prior, has asked to appeal Judge Boyce’s rulings regarding the disqualification of prosecutors Rob Wood and Rachel Smith.
First, let’s talk about what it means to perform consumptive testing.
This week the prosecutor in the Daybell case filed a motion and a brief for consumptive testing of some forensic material. You may recall that the state gave the defense notice of the need for consumptive testing months ago, and the defense objected. Unfortunately, the issue was delayed because of the stay in the case while Lori was incompetent.
The technology associated with DNA testing has taken another giant leap forward in the past few years. Coupled with the use of genealogical databases - made possible by the development of commercial DNA testing - there have been some astonishing cold case solutions in the news. Most notably, the arrest of James DeAngelo, the Golden State Killer.
In general, the technology improvements have allowed the ability to test smaller samples. That means that DNA can be recovered from fingerprints. Commonly called touch DNA, the sample is derived from the small amount of sweat and oil left along with a fingerprint.
There have been advances in hair testing too. In the past, to test hair samples for DNA, the root of the hair had to be attached to the hair shaft. These advancements recently allowed scientists to solve a 40-year-old murder case by testing a single centimeter of rootless hair. The hair sample was found on five-year-old Ann Pham’s body when she was murdered in Seaside, California, in 1982. Scientists could obtain DNA from the hair and compare it to a genealogical database. The murderer was identified as a 70-year-old man who escaped scrutiny during the 1982 investigation. He served prison time on unrelated sexual assault charges before being identified as Pham’s killer.
With the recent motion in the Daybell case, we learned more specifics. The prosecution is trying to take advantage of these improvements in technology. The motion lists several samples that they would like to have tested. First, hairs are caught in the duct tape inside a body bag used to transport JJ Vallow’s body. We know from the testimony at Chad Daybell’s preliminary hearing that JJ was wrapped in a lot of duct tape. Most forensic investigators will tell you that it’s virtually impossible to handle duct tape and not leave debris and fingerprints in the adhesive. The state also wants to test ridge detail on the adhesive side of the duct tape associated with JJ’s body. Ridge detail means the sample is from a fingerprint they seek to test for touch DNA. They are also asking to test “dark spots” on the handles of shovels and a pickaxe to determine whether the spots contain human DNA and, if so, whether it matches the profile of any of the defendants. Although Alex Cox is dead, he’s been named in documents as a co-conspirator. Even though his body was cremated, Arizona officials have his DNA profile from the samples taken during the medical examination of his body. His DNA profile should also be on file in Texas because of his felony conviction there. The final evidence to be tested is the most heartbreaking. The state is asking to test samples of material recovered from under JJ Vallow’s fingernails during his autopsy. When a victim resists an attacker during a struggle, the attacker’s skin cells can often be found under the victim’s fingernails.
The samples of these materials are so small that the entire specimen must be used up in the test. Typically, a portion of forensic samples is saved so that there can be additional testing. In many cases, the defense will ask for their own independent testing of each sample. And if the case comes up on appeal or retrial, additional testing may also be needed.
If there is only enough material for one test, the state must assure that the defense is notified and that the testing is done properly. The state also will wait until the trial is near before using up the single sample to be sure it’s actually necessary. In this case, the defense objected to the consumption of the evidence. Usually, where the defense objects, the judge will order that the defense and the prosecution agree to testing by an independent lab. In addition, the judge will order that each side have an expert present to observe and document the process.
Next, Chad Daybell’s attorney, John Prior, has requested permission from the court to appeal Judge Boyce’s ruling about disqualifying Prosecutors Rob Wood and Rachel Smith.
Prior has asked for an interlocutory appeal. What the heck is that? It’s an application to an appeals court to challenge a decision of the trial court before there is a final judgment in the case. In this case, it’s the denial of John Prior’s motions to disqualify Wood and Smith that Prior wants reviewed. We don’t know why Prior moved to disqualify because, once again, the judge sealed the motions.
Why is the motion for interlocutory appeal important? There are several reasons; first, it could delay the upcoming trial. Second, at worst, it could result in a dismissal of the charges.
Although appeals courts usually prioritize interlocutory appeals, the appellate process can be slow. If the appeals court does not hear and decide the issues before the January trial, it could cause a delay. On the other hand, if the court hears the appeal and agrees with Prior, it will cause significant ripples in the case that could also delay the trial. If Wood and Smith are disqualified, has the reason for their disqualification affected how the case has been conducted up to now? If so, does that prejudice the defendants in any way? If Wood and Smith’s participation has prejudiced the defendants, does it rise to the level of a dismissal of the case? If so, it may require that the state dismiss and start all over. While no one wants to see that happen, we have to fall back on the fact that this is a death penalty case and requires the utmost care and deliberation.
Stay tuned for developments, and thanks for following!
