Opposition Brief — John Wakefield, Petitioner v. New York

COUNTY OF SCHENECTADY

OFFICE OF THE DISTRICT ATTORNEY

612 STATE STREET

JUDICIAL BUILDING

SCHENECTADY, NEW YORK 12305

Phone (518) 388-4364

Fax (518) 388-4569

DISTRICT ATTORNEY

ROBERT M. CARNEY

October 12, 2022

Office of the Clerk

Supreme Court of the United States

Washington, D.C. 20543

RE: PEOPLE v. JOHN WAKEFIELD

No. 22-5588

Dear Supreme Court Clerk:

Enclosed are 40 bound copies and 1 unbound copy of the

People’s response to a Petition for a Writ of Certiorari

and proof of service regarding the above-captioned matter.

Very truly yours,

ROBERT M. CARNEY

District Attorney

By: William M- Lemon

Assistant District Attorney

WML/cd

Cc: Matthew C. Hug, Esq.

No. 22-5588

SUPREME COURT OF THE UNITED STATES

The People of the State of New York

Respondent

Vs.

John Wakefield

Petitioner

On Petition for a Writ of Certiorari to the United States Supreme Court

Response to a Petition for a Writ of Certiorari

ROBERT M. CARNEY

DISTRICT ATTORNEY

hy fh

—— - Lemon, Esq.

Assistant District Attorney

Peter H. Willis, Esq.

Counsel to the District Attorney

Schenectady County District Attorney’s Office

612 State Street

Schenectady, NY 12305

Tel. (518) 388-4364

Fax. (518)388-4569

Peter.willis@schenectadycounty.com

Respondent

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......cccssssssssssssssssssssscseseceesecceseceeseseesessssessssssessssesssseseeneeess i

L STATEMENT OF THE FACTS: sescsccssssssssesoncocassssevssscasaausavesesessxsess 1

I. THE DEFENDANT’S CLAIM THAT HIS SIXTH AMENDMENT

RIGHT TO CONFRONTATION WAS VIOLATED IS UNPRESERVED

AND WITHOUT MERIT.........cccsssssssseeseceescceeeausecsseeceeeaeeusesseeeeeeees 9

A. THE DEFENDANT’S CLAIM THAT THE CONFRONTATION

CLAUSE WAS VIOLATED IS UNPRESERVED BY THE

FAILURE TO OBJECT TO THE TESTIMONY OF

DR. .PERLIN... sis cecccscsesvevansosensessengsoueeeuaspuesvsenseaaupsesevexaversaees 10

B. THE DEFENDANT’S CLAIM THAT HIS SIXTH AMENDMENT

RIGHT TO CONFRONTATION WAS VIOLATED IS

WITHOUT MERIT vessassssewassceccssscnvsunassess tists ibenssensenacnedessbetse 12

THT. , CONCLUSION .....ccsscsssscesssssseosnssssosessessnscoonnsennentenecesenscossasascensessosansasenssasssnsensonse? 20

TABLE OF AUTHORITIES

Cases

Bullcoming v. New Mexico, 564 US 647, (2001)...ccccsecssessecsessessesssssessessestsssssesssneeatensene

Crawford v. Washington, 541 US 36 (2004)...

Melendez-Diaz v. Massachusetts, 557 US 305 (2009)

People v. Caviness, 38 NY2d 227, 230 (1975)

People v. Daly, 54 AD2d 1007, 1009 (3 Dept., 1976)

People v. Flores, 47 Misc.3d 1210(A) (Nassau County, 2015)

People v. Gillis, 220AD2d 802, 805 (3 Dept., 1995)

People v. Hamilton, 413 F.3d 1138, 1142 (10" Cir., 2005)...

People v. Hodges, 66 AD3d 1228, 1233 (3 Dept., 1997)

People v. John (27 NY3d 294 [2016])

People v. Kelly, 88 NY2d 248, 252 (1996)...

People v. Khorozian, 333 F.3d 498, 506 (3 Cir., 2003).

People v. Rawlins, 10 NY3d 136 (2008).......

People v. Rosario, (9 NY2d 286, 289) ...

People v. Santorelli, 95 NY2d 412 (2000)..........

People v. Wright, 225 AD2d 430 (24 Dept., 1996)...

Sacket v. Barlett, 241 AD2d 97, 101 (3" Dept., 1997)

U.S. v. Norman T., 129 F3d 1099 (10" Cir., 1997); cert denied 523 US 1099 (1998)

United States v. Lamons, 532 F.3d 1251, 1263 (11" Cir., 2008)

United States v. Lizarraga-Tirado, 789 F.3d 1107 (9" Cir., 2015)

United States v. Moon, 512 F.3d 359, 362 (7" Cir., 2008)

United States v. Washington, 498 F3d 225, 231(4" Cir., 2007)...

Statutes

CPL § 240.45

CPL § 240.20(1)(h)

(CPUS D048 a2 cescssascssscsssaensvs225sssssssnnstvavessunscgossasndeesUSseccnvobtnsnssbassSanassnvessSossotuninsesdadnnnsSSesasthasiibee

J. STATEMENT OF FACTS

On Monday, April 12, 2010 Brett Wentworth was found strangled to death in his

apartment at 1019 Wendell Avenue in the City of Schenectady. Paramedics found him at an

approximate 45 degree angle; face down in the corner of his couch, with his knees on the ground.

An electric guitar and amplifier were located several feet from Brett’s body and the cord that

connected them was found wrapped around his neck. The forensic pathologist who performed

the autopsy found the cause of death to be asphyxia due to ligature strangulation, consistent with

a compressed the carotid artery on the sides of the neck. The pathologist’s testimony also

demonstrated that pressure on the artery would have rendered Brett unconscious within 15

seconds of application and dead within a minute and a half of continued pressure. The

pathologist also determined that the time of death was between 12 and 24 hours earlier, placing it

sometime on the afternoon of Sunday, April 11". The pathologist also swabbed various parts of

the victim’s body, including a scratch on his right, dorsal forearm.

The examination of the scene revealed that while the front door to the apartment had been

locked with a dead bolt, the rear door had not been. Detectives spent over three days collecting

hundreds of items of evidence, including the guitar cord, the clothing Brett was wearing and

liquor and beer bottles found in and around the apartment. Some items, like the bottles, were

swabbed for DNA analysis by Schenectady Police Department detectives. Other items, such as

the guitar cord and Brett’s clothing, were sent directly to the New York State Police Forensic

Investigation Center (NYSPFIC). Detectives also extensively photographed the apartment,

documenting items still present and the absence of other items that Brett was known to own.

Brett was known to have a laptop computer and a playstation 3 gaming system yet both

items were gone from the apartment when the police entered. The first officer on scene,

Patrolman Mathew Hoy, noticed a distinct pattern in the dust on a TV stand in the front living

room. Hoy testified that this pattern appeared to be consistent with a gaming console that had

recently been moved. Additionally, while no playstation 3 was located, games that could only be

played on the system were found. Later, it was determined that an orange, blue and white duffel

bag was also missing.

A neighbor, Damian Pagano, testified that on the Saturday night before the discovery of

Brett’s body he had seen multiple people fight on the porch of 1019 Wendell.! Pagano saw one

individual strike another and then leave in the direction of Union Street. He described this

person as a heavy set, light skinned black male, wearing a winter coat, hat and glasses.

The police received several forensic leads based on DNA and fingerprints indicating that

Martin DeSilva’s DNA was found on one of the beer bottles and his fingerprint were discovered

on other items inside of the home. DeSilva testified that in 2010 he was living on Eastern

Parkway, approximately four minutes away from Brett’s apartment and had sold him marijuana

in the past. DeSilva testified that, on the night of the same fight seen by Pagano, Brett and the

defendant, John Wakefield, had come to DeSilva’s home on Eastern and he traded Brett

marijuana for pills. During the sale Brett invited DeSilva back to his apartment for a party. Four

to five hours later, DeSilva arrived at Brett’s house and found him and the defendant drinking

with another white male that DeSilva did not know. DeSilva testified they were drinking and

playing video games in the front living room but that the party broke up after the other white

male and the defendant got into a fight. He testified that the fight started inside the house but as

it turned physical it spilled out onto the porch and the yard. DeSilva remembered seeing mostly

pushing and a single punch before both men left the apartment.

1 This would have been April 10, 2010.

The next morning (Pagano’s testimony that the fight occurred on the Saturday night prior

to the discovery of Brett’s body, places this on Sunday, April 11) DeSilva was on his porch when

Brett came to his house looking to again trade pills for marijuana. Brett left and returned with

the defendant. After the exchange, Brett and the defendant walked back toward Brett’s house.

This testimony placed the defendant as the last person to be seen with Brett while he was still

alive and on the day he was killed.

In 2010 Faith Wilson was a prostitute living in Schenectady who knew the defendant

from seeing him at various drug houses they would both frequent. She also knew the defendant

to regularly buy crack and, when he was without money, to trade various items for it. Wilson

testified that she was incarcerated at the Schenectady County Jail starting at the end of 2009 into

February of 2010. While at trial, her memory of the exact year was not precise, she was able to

confidently locate her release as occurring in February of 2010 because she had found out that

she was pregnant while still in jail and that after she was released in February, she gave birth to

her son in August of 2010. She testified that, in the weeks after.she. was released, she was

outside a crack house when she was approached by the defendant. She testified that the

defendant told her that he had a laptop and newer playstation that he wanted to sell or trade for

crack. She also testified the defendant had two duffel bags with him. One bag she described as

black and orange. She was then shown a picture of Brett from a vacation taken several years

earlier and identified the bag Brett was holding as the same one she had seen the defendant with.?

Wilson’s pregnancy proved critical to identifying when she interacted with the defendant

during the spring of 2010. When Wilson’s testimony regarding when she was released from

Schenectady County Jail is compared with the defendant’s record of incarceration, it is revealed

2 Brett’s sister, Margaret Messner authenticated the photo and told police that the family had been unable to locate

this bag when they cleared out Brett’s things.

that the two were only out of jail at the same time between April 9, 2010 and April 14, 2010.3

This five-day stretch, surrounding the day of the homicide, was the only time that Wilson and the

defendant could have possibly interacted. This placed the defendant in possession of the items

stolen from Brett’s apartment with a day or two of when Brett was killed.‘

Robert Evans testified that he had known the defendant for years and that they had often

smoked crack cocaine and drank together. Evans testified that in April of 2010, several days

before his birthday on April 15, he was sitting on the front porch of his home when the defendant

approached him and called him by a familiar nickname. Evans responded in kind and, at the

defendant’s suggestion, the two of them began to walk. Evans could tell that the defendant was

high on crack cocaine. As they walked the defendant pulled out a marijuana pipe and told Evans

that he had taken it from “a gentleman which he had choked and took out”. The defendant then

told him that he had choked the man with a guitar string or chord and that he wanted to go back

to his apartment on Wendell Avenue and steal his guitar, amplifier and musical equipment.

Evans was shocked by the casual nature of the defendant’s comment and immediately gave him

back the pipe. The two men walked to the area of 24 % Columbia Street where the defendant

began trying to contact its resident.° After getting nervous at the defendant’s increasingly

aggressive behavior Evans left and returned to his home.

Evans didn’t call the police because he didn’t want to believe the defendant. Evans also

hadn’t heard anything about a murder on Wendell — It was not until months later, in

December of 2010, that Evans learned about the murder after Brett’s family and the police held a

3 The petitioner incorrectly states that he was incarcerated at the time Wentworth was killed. He was not, and

nothing in the trial record supports this grossly inaccurate statement.

* The police eventually tracked the playstation 3 to the home of Anthony Miller, a local drug dealer that would

supply the crack houses that defendant frequented.

5 Corroborating Evans, other evidence showed that the defendant knew the resident of that house and had stolen a

lawn mower from the home on Saturday, April 10".

press conference asking the public for help. Evans testified that he heard about fliers that had

gone up in the neighborhood asking for help and promising a reward for information. Evans

called the number on the flier and told the police what the defendant had admitted to him. He

testified that he was not motivated by the promise of a reward, but rather because he felt that it

was the right thing to do.

On cross-examination, defense counsel sought to impeach Evans for not coming forward

until after he had found out about the promised reward. Defense counsel had actually begun his

attack on Evans in his opening statement, insinuating that he only revealed the information in

response to the reward offer, stating “Mr. Evans, apparently knew of this murder for six months,

didn’t say a word of it until the family published in the paper for a reward, then Mr. Evans

stepped forward. ‘I have evidence of the murder. John told me he did it and ] want that cash.’”

In response, the People petitioned the court to call Evans’ friend David Jones, to testify that

Evans told him of the defendant’s admissions before the reward posters went up. The court

allowed the testimony and Jones testified that Evans had told him of the defendant’s statements

weeks prior to the reward offer.

The defendant also admitted the killing to two separate inmates at the Schenectady

County Jail. Kevin Allen testified that he had known the defendant for years from the streets of

Schenectady where they had smoked crack together and frequented the same places. When the

defendant was arrested he was placed on Allen’s tier at the jail. While there the defendant told

Allen that he had killed the victim and stolen his playstation, laptop and several other items from

the apartment and sold them for drugs. The defendant gave Allen significant details about his

interaction with Brett and the other men who had been to Brett’s apartment around the time of

the murder, describing them as a Guyanese guy and guy named Jason.® The defendant also told

Allen they were drinking O.E. and Baccardi while at the victim’s apartment. An Old English

Malt Liquor bottle from the victim’s garbage had the defendant’s DNA on it and a Baccardi rum

bottle had Rector’s DNA on it. The items the defendant told Allen he took out of the home were

also consistent with the items Faith Wilson had seen the defendant with in the days after the

murder. The defendant also repeatedly told Allen about a new type of DNA testing being done

in his case.

Leon Horton also testified that the defendant admitted to going to the victim’s apartment

to rob him and steal his musical equipment and then killing him when things got out of hand.

Andrea Lester from the NYSPFIC performed the DNA analysis on items taken from

Brett’s apartment. Lester explained the process by which DNA is extracted from pieces of

evidence, quantified, amplified and sent through a genetic analyzer. Lester testified this process

results in the production of line graphs called electropherograms (EPGs) that record the amount

DNA and its genetic location. From these EPGs Lester developed genetic profiles from the

items of evidence.

Lester also tested control samples from the victim, defendant, Evans, DeSilva and Rector.

Lester analyzed a cutting from the rear collar of the victim’s shirt and concluded that it had a

mixed DNA profile of at least two individuals. She compared this mixture to the victim and

defendant and concluded that neither could be excluded from the mixture and that the odds of

unrelated person being included were 1 in 1,088. She also analyzed the swab from the victim’s

right dorsal forearm and found a mixed DNA profile from which neither the defendant, nor the

victim, could be excluded, and that the odds this time were 1 in 422.7

§ Martin DeSilva is Guyanese.

7 Lester identified these numbers as a ‘combined probability of inclusion’ or ‘CPI’ statistic

6

Lester also analyzed the swabs taken from the guitar chord that had been wrapped around

the victim’s neck and several other cuttings from the neck region of the victim’s shirt. Each

produced a mixed DNA profile. However, she was unable to make any comparisons to these

profiles based on the complexity of the mixtures and the level of DNA present.

Lester testified that the computer program that runs the genetic analyzer was called

AmFSTR, that the program that interprets the information from the genetic analyzer was

GeneMapper ID and that the digital electropherograms files are denominated by file identifier

.fsa and typically referred to as the raw data produced during DNA analysis. This data was then

transmitted to a company called Cybergenetics.

Dr. Mark Perlin, founder and chief scientific officer of Cybergenetics testified that

Cybergenetics is a company based in Pittsburg, Pennsylvania that specializes in the analysis of

DNA. Dr. Perlin founded Cybergenetics in the late 1990’s as an outlet for work he was then

doing at Carnegie Mellon University. Initially Cybergenetics was focused on the human genome

project, an international project attempting map all of the genes in the human genome. The

product that Cybergenetics had created for this work, FastMap, eventually became a computer

program called TrueAllele.

TrueAllele specializes in analyzing and deconvoluting complex mixtures of forensic

DNA evidence.® Dr. Perlin analyzed the information produced by Lester using TrueAllele and

was able to deconvolute the mixtures and offer conclusions about the presence of the defendant’s

DNA. In particular, Dr. Perlin analyzed a swabbing of the guitar chord and found the

defendant’s DNA profile was 300 million times more probable than a coincidental match to an

unrelated African American person. For the cutting from the outside rear portion of the collar

® TrueAllele is discussed in much more detail in response to the first point raised in defendant’s brief.

7

from the shirt the victim was wearing Dr. Perlin found that the defendant was the major

contributor to this mixture and that a match between his DNA profile and the mixture was a

quintillion times more probable than a coincidental match to an unrelated African American

person. From the cutting from the outside of the front collar Dr. Perlin found that the defendant

was the minor contributor to this mixture and that it was 10 billion times more probable than a

coincidental match to an unrelated African American person. Finally, Dr. Perlin analyzed the

swab taken from the victim’s forearm and determined that a match between defendant’s DNA

and the swab was 56.1 million times more probable than a coincidental match to an unrelated

African American. After introducing these results Dr. Perlin testified to how specific these

results were, or rather, what the chances would be of the defendant’s DNA being falsely

attributed to the sample. To highlight the specificity of the match statistics associated with the

defendant’s DNA profile Dr. Perlin prepared 4 charts, entered into evidence as People’s 57A-D.

These charts contained bar graphs on which Dr. Perlin had plotted the results of 10,000 randomly

created genetic profiles that had been compared to each of the four items of evidence. The

graphs demonstrated that nearly all of the randomly generated profiles had extremely low match

statistics, indicating exclusion from the sample. The graphs also plotted the defendant’s profile.

In each case the defendant’s match statistic was an extremely outlier, far away from the general

population. These graphs illustrated and supported the conclusion that the defendant’s DNA was

present on each of the items.

After approximately two weeks of testimony the People rested their case. The defendant

called Dr. Gary Skuse and Christopher Cullen as witnesses. Dr. Skuse, a professor of biological

sciences at the Rochester Institute of Technology, testified generally to how DNA could be

transferred between items. He also testified that he agreed with Dr. Perlin’s conclusions that the

defendant’s DNA was on the items TrueAllele analyzed, but that there was no way to know

when it was deposited.

After roughly six hours of deliberations the jury convicted the defendant of all charges.

Il. THE DEFENDANT’S CLAIM THAT HIS SIXTH AMENDMENT RIGHT TO

CONFRONTATION WAS VIOLATED IS UNPRESERVED AND WITHOUT MERIT

Prior to trial the defendant moved for, and was granted, a Frye hearing to determine

whether the DNA analysis produced by Cybergenetics by using TrueAllele was generally

accepted as reliable by the relevant scientific community. Prior to the hearing the defendant filed

a discovery motion which sought, among other things, the computer source code for the

TrueAllele system. The People responded that — was not discoverable under the

provisions of New York’s Criminal Procedure Law as codified in (then) NY CPL§240 and that,

even if it was, it was not in the possession of the District Attomney’s Office, nor any Police

Department. The defendant never moved to compel production through discovery or sought to

subpoena the code and proceeded to the — without it.

The trial court authored a comprehensive decision finding that TrueAllele was

admissible, and the case proceeded to trial in March of 2015. During jury selection the

defendant filed a motion seeking to allow his expert witness the ability to review the source

code. The theory behind the defendant’s request was, as is raised in his petition to this Court,

that the defendant was entitled to review the code in order to be able to fully exercise his Sixth

Amendment right to cross-examination. The trial court rejected the claim and the trial concluded

as described above.

The defendant raised the claim on direct appeal and it was rejected by the Appellate

Division of New York Supreme Court as well as the New York State Court of Appeals. The

defendant has now filed his petition for certiorari seeking this Court’s review. This Court should

deny the defendant’s petition because 1) the claim is without merit and would entail this Court

adopting a view of the confrontation clause that vastly exceeds, and would directly contradict,

the holdings of this Court; 2) the defendant never properly raised the Sixth Amendment claim

with the trial court; and 3) Even if it was error to deny production of the code, such an error was

harmless in light of the overwhelming evidence of the defendant’s guilt apart from the

TrueAllele results.

A.) The defendant’s claim that the confrontation clause was violated is unpreserved

by the failure to object to the testimony of Dr. Perlin

To preserve a claim that a defendant’s sixth amendment right to confrontation has been

violated a defendant must object to the admission of such testimony on those specific grounds.

U.S. v. Norman T., 129 F3d 1099 (10" Cir., 1997); cert denied 523 US 1099 (1998). The

defendant’s motion seeking to compel access to the source-code for TrueAllele so that it could

be reviewed by a defense expert relied on this Court’s rulings in Crawford v. Washington, 541

US 36 (2004) and Melendez-Diaz v. Massachusetts, 557 US 305 (2009) and the New York Court

of Appeals ruling in People v. Rawlins, 10 NY3d 136 (2008)?. In his motion the defendant

argued that the source code itself should be considered a ‘declarant’ in the same manner as a

hypothetical forensic scientist who performed laboratory work and reported a conclusion.

However, the motion did not seek to preclude Dr. Perlin’s testimony as inadmissible hearsay in

the absence of the code. Moreover, after the trial court denied the defendant’s — seeking to

compel production of the source code, the defendant never moved to preclude Dr. Perlin’s

testimony or objected to the TrueAllele results as hearsay. Because the defendant characterizes

5 This cite is also referred to as People v. Meekins the companion case decided along with Rawlins.

10

the code itself as the declarant, the natural evolution of that position is that testimony regarding

the results reached by the system would be considered hearsay and inadmissible if offered

through another source. However, unlike the defendants in Rawlins and Melendez-Diaz who

both objected to the admission of disputed lab reports, the defendant never objected to Dr.

Perlin’s testimony on hearsay grounds.

The defendant made the first part of the argument, i.e. that the code was a ‘declarant’ but

never made the second argument; that without disclosure Dr. Perlin’s testimony constituted

hearsay. As this Court held in Crawford, a violation of the confrontation clause occurs when a

testimonial statement is offered without the opportunity to confront the speaker. Therefore, even

if the defendant’s original motion had merit, a hearsay objection to Dr. Perlin’s testimony was

necessary to preserve his claim.

The defendant’s failure to preserve the argument that he advances cannot be overlooked.

The entire body of case law that the defendant relies on addresses the question of whether

specific testimony or evidence should, or should not have, been admitted at trial. None of the

cases from Crawford through Melendez-Diaz, Bullcoming v. New Mexico, 564 US 647, (2011) and

Davis v. Washington, 547 US 813 (2006) held that the confrontation clause was violated based on a

trial court’s ruling to deny the production of material. The cases each stand for the premise that

specific testimony either was, or was not, admissible, not that the various defendants had the

right to demand production of certain material. The defendant tacitly acknowledges this,

characterizing the error as “allowing Perlin to testify as a surrogate about the conclusions made

by TrueAllele”.

The issue the Court sought to remedy in Crawford was that testimonial evidence was

improperly admitted because the maker of the statement did not testify. Perlin testified without

41

objection as the author of the report and the creator of TrueAllele and was subjected to extensive

cross-examination.

To have properly preserved his claim that Dr. Perlin’s testimony constituted inadmissible

hearsay the defendant was required to object to his testimony. He did not do so and therefore

failed to preserve his claim that his right to confrontation was violated.

B.) The defendant’s claim that his sixth amendment right to confrontation was

violated is without merit

The defendant’s motion to compel the production of TrueAllele’s source code was

properly denied by the trial court. Before discussing the merits of this application, it is important

to distinguish what the motion was, and what it was not. The motion to compel did not seek a

court ordered subpoena for the source code, nor was it a motion seeking to enforce a subpoena

that had been served on Dr. Perlin or Cybergenetics. Therefore, in the absence of a subpoena,

the trial Court only had the authority to compel disclosure of the material to the extent that the

materials could be considered discoverable, Rosario or Brady material. “All three categories, i.e.

disclosure required by the Constitution [see, CPL § 240.20(1)(h)], required by fundamental

fairness (see CPL § 240.44, CPL § 240.45) and mandated by legislative policy, are codified

within article 240, which defines the breadth of criminal discovery” Sacket v. Barlett, 241 AD2d

97, 101 (3 Dept., 1997). Therefore, even before considering the defendant’s claim it is clear

that he failed to provide the Court with any authority to grant the motion.

There is no free-standing discovery right associated with the confrontation clause. "The

opinions of this Court show that the right to confrontation is a trial right, designed to prevent

improper restrictions on the types of questions that defense counsel may ask during crossexamination . .. The ability to question adverse witnesses, however, does not include the power

to require the pretrial disclosure of any and all information that might be useful in contradicting

a2

unfavorable testimony.” Pa. v. Ritchie, 480 U.S. 39, 52-53 (1987). The petitioner asks this

Court to reject the holding Ritchie and find that the confrontation clause does contain a right of

discovery. Such a holding would encompass an enormous expansion of the confrontation clause

that would not only be inconsistent with Ritchie, but would create a right that would be

practicably impossible to define in scope, let alone establish judicial authority over.

The trial court also only had the authority to order production of materials to the extent

that the sought-after materials were in the People’s possession. People v. Santorelli, 95 NY2d

412 (2000) “CPL 240.45, which codifies the rule established by this Court in People v. Rosario,

(9 NY2d 286, 289), obligates the prosecution to disclose any recorded statement in its possession

or control... Indeed, ‘the principal consideration for determining whether the prosecutors have a

fairness obligation under Rosario to turn over various materials focuses on whether these items

actually are in or subject to the possession or control of the particular prosecution office’” Id., at

422 citing People v. Kelly, 88 NY2d 248, 252 (1996). Rosario does not apply to the scientific

“notes and articles here, which were written by the independent expert witness long before the

events at issue took place, at a time when he was "working according to [his] own methods

without being subjected to the control of the [People]". People v. Hodges, 66 AD3d 1228, 1233

(3" Dept., 1997) citing People v. Gillis, 220AD2d 802, 805 (3 Dept., 1995). The same

requirement applies in connection with the production of Brady material (Santorelli, at 422-423.)

and items identified in CPL § 240.20; People v. Wright, 225 AD2d 430 (2"4 Dept., 1996) The

record of both the Frye hearing and the trial established that the source code was not in the

People’s possession. Therefore, even if the defendant could successfully argue that the source

code fell into one of the above categories, the Court still had no authority to compel disclosure

from the People because the People did not possess or control it. The petitioner seeks an

13

expansion of the confrontation clause that would create a right to demand production of

information from private citizens or corporations that simply does not exist.

For the defendant’s position to have merit this Court would also have to conclude that the

confrontation clause applies to a non-person entity. The confrontation clause does not apply to

. the source code because the code is not a person. For the purposes of hearsay and confrontation

clause analysis a statement is “an oral or written expression .... of a person.” People v. Caviness,

38 NY2d 227, 230 (1975) “Only a person may be a declarant and make a statement.

Accordingly, “nothing ‘said’ by a machine... is hearsay” United States v. Washington, 498 F3d

225, 231(4" Cir.,. 2007) [finding raw data that revealed the chemical composition of defendant’s

blood not a statement under Crawford); U.S. v. Lizarraga-Tirado, 789 F.3d 1107 (9" Cir.,

2015)[holding that placement of a GPS tack was not hearsay because “the program makes the

assertion... there’s no statement as defined by the hearsay rule.” Id., at 1110; see also; People v.

Hamilton, 413 F.3d 1138, 1142 (10" Cir., 2005), People v. Khorozian, 333 F.3d 498, 506 (34

Cir., 2003), United States v. Lamons, 532 F.3d 1251, 1263 (11" Cir., 2008); United States v.

. Moon, 512 F.3d 359, 362 (7 Cir., 2008); People v. Flores, 47 Misc.3d 1210(A) (Nassau County,

2015)

The code itself obviously cannot be cross-examined any more than it can be called as a

witness. The defendant’s request for expert access to the code reinforced the principle that the

code itself could not be a witness; allowing the expert to then either prepare cross-éxamination

questions for Dr. Perlin or testify themselves. Under either scenario, the code would be

addressed through the live testimony of a witness. Crawford does not allow for the testimonial

statement of a non-testifying declarant to be admitted merely because the defendant was given

access to a particular piece of information. Ifthe code itself were truly a declarant, as conceived

14

of under the sixth amendment and Crawford, no amount of cross-examination of Dr. Perlin

would allow for its ‘statement’ to be admissible. That is not the state of the law under Crawford

nor any construction of the confrontation clause.

The defendant’s complaint is that he believes he was entitled to more information than he

was granted and that his right to confrontation was therefore compromised. This was the claim

confronted, and rejected, by this Court in Ritchie. The defendant attempts to buttress his claim

by portraying the results ‘from TrueAllele as the product of an unknowable-secret process. This

simply isn’t true and ignores the tremendous amount of information the defendant did have

access to about TrueAllele.

The system is specifically and intimately described in the published literature admitted at

the Frye hearing and contained in the record. The record of the Frye hearing also demonstrated

that, after spending several years evaluating TrueAllele, the system was sufficiently understood

by members of the New York State Commission on Forensic Sciences DNA subcommittee,

which unanimously approved the use of TrueAllele in Forensic casework. The Frye hearing also

demonstrated that the system was also sufficiently understood by leading DNA scientists at the

U.S. Department of Commerce’s National Institute for Standards and Technology (NIST) who

used it to validate control samples and present on TrueAllele’s effectiveness at conferences as

well as for other leading scientists in the field to complement TrueAllele’s approach and

advocate its use.

The reality is that the defendant would rather remain willfully of ignorant of how the

system works, than attempt to understand TrueAllele. This willful ignorance allows him to

continue the fallacy that lack of access prevented him from understanding, and therefore

confronting, the system. In addition to the plentiful descriptions of TrueAllele that the defendant

15

had access to, his complaint that he was prevented from adequately understanding TrueAllele

must also be assessed in the light of the information he had from the New York State Police and

Cybergenetics. Prior to the Frye hearing the raw data from the NYSPFIC was turned over to the

defendant. This included the original EPG’s and the underlying data that they represented. In

addition, Cybergenetics provided a 200 page case packet of materials (People trial exhibit 57)

containing information about the number of contributors the system was being asked to solve for,

TrueAllele’s generated EPG’s, a table of the allelic probabilities used to calculate the final match

statistic, the number of cycles that the system performed in its analysis and a host of other

information specific to the defendant’s case.!° Despite this information, no defense expert has

ever offered an opinion that TrueAllele’s results were inconsistent from the raw data produced

by the State Police. In fact, Dr. Skuse, the defendant’s expert, agreed with Dr. Perlin’s

conclusions. It seems logical that, if there was an inconsistency between the raw data and the

results produced by TrueAlllele, Dr. Skuse would have identified it. It is therefore rather

inconceivable to conclude that, had Dr. Skuse had access to the code, he would have been able to

contribute any information that would have undermined the final results or Dr. Perlin’s

testimony.

As an example of the type of information that is publicly available (and which the

defendant had access to) consider the following passage from An Information Gap in DNA

Evidence Interpretation, [Frye hearing exhibit 3]; here Dr. Perlin describes the system.

“Suppose that an allele produces a small amount of amplified product, with a correspondingly low peak height.

Applying qualitative review, if that peak height were under some interpretation threshold, the peak would “drop

out” from analysis and be lost to genotype inference. This drop out does not happen when using a quantitative

probability model, however. Instead, the data variance model equations (2) and (4)!! enter into the likelihood

comparison (3) of the quantitative data pattern with any proposed genotype combination (1) in forming a

* The allelic probabilities set out the exact probabilities that TrueA llele used to calculate its final likelihood ratio.

This would have allowed the defendant to challenge any one of those probabilities as being inconsistent with the raw

data produced by the state police.

4 These equations appear on pages 2 and 3 of the article.

16

genotype probability. Since the amplification variance component yo? scales with the peak height y, the

variance reflects the greater data uncertainty (viewed as a coefficient of variation) when y is small. Moreover,

when the observed data pattern does not fit any genotype model particularly well, the dispersion factor 6*

increases, further increasing modeled data uncertainty.”

Now suppose that no detectable amplification occurs, so that an allele has no peak at all (e.g. rfu is zero).

Here, the # detection variation component of equation (2) comes into play. With low data, peaks have small

heights, and so their variances yro*+/* are comparable to the 1? variance of missing alleles that have dropped out.

When considering these peak variance values, the likelihood comparison (3) can assign genotype candidates

non-negligible probability data value, even when their alleles show no peaks in the data”

This passage describes the basic method by which TrueAllele assesses the factors of

drop-out and low-level peak heights in general, a facet of the STR process integral understanding

and deconvoluting mixed and low level sample of DNA. This passage might be technical, but it

is authored by Dr. Perlin, written in English, and accompanied by the mathematical formulas that

it describes. This passage is just one example of the numerous mathematical descriptions that

Dr. Perlin and Cybergenetics have published over the last twenty years for TrueAllele that are

publicly available. The defendant has not demonstrated, or even attempted to demonstrate, how

this material is insufficient. The defendant cannot simply stick his head in the sand and then

complain that he is blind.'?

?? A Striking contrast to defendant’s act of turning a blind eye is found in the article “Four model variants within a

continuous forensic DNA mixture interpretation framework: Effects on evidential inference and reporting”,

Swaminathan, Qureshi, Grgicak, Duffy and Lun, PloSONE, Vol. 13, Issue 11 (November, 2018). In this article

(which never mentions the need for source codes) the authors review four different continuous models including

TrueAllele. The authors are very easily able to discuss the methods of analysis employed by TrueAllele and to

compare those methods to other competing systems. For instance, the authors observe that “All continuous methods

must include assumption about the distribution of the allele signal peak heights in the EPG. For example... Perlin

(citing to one of the New York State Police validation papers) and Taylor (one of the creators of STRmix) use a

normal distribution to model peak heights and the log of the ratio of observed to expected peak heights,

respectively.” In comparing methods for incorporating background noise and “other non-allele signal artifacts in

their calculation” the authors observe that “the authors of (a competing system) do not account for either the

possibility of ‘drop in’ or for a contribution from noise, while the authors of (TrueAllele, STRmix and another

system) incorporate either drop in or noise in their models, but use distinct assumptions: Cowel, et. al. account for

drop in by adding unknown contributors with low template masses and in turn high dropout rates; Taylor et al.

employ a model in which drop in events either have a fixed probability of occurring or have a probability that is a

function of the height of the observed peak; and Perlin et al. model background noise using a normal distribution.”

The authors (who were not given access to TrueAllele’s source code) continue to describe a number of other

features of TrueAllele as it compares to other competing continuous systems. This shows that TrueAllele can be,

and is, understood by other experts in the field without the need to review the source code.

if

The combination of raw data, along with the published mathematical descriptions of the

system contained in the articles admitted at the Frye hearing, was more than adequate to crossexamine Dr. Perlin. In the least, it was sufficient to raise a specific claim of what, if any

material, needed to be disclosed for an effective and efficient cross-examination. The defendant

and his attorneys have had access and information about TrueAllele and its results for nearly ten

years, but have never proffered even the remotest attack on the actual results.

The defendant’s position also ignores the impracticality that would have resulted if the

code had been disclosed during jury selection. The code is 170,000 lines long and written in a

computer language called MATLAB. The defendant has not demonstrated that a review of the

code could have been effectively carried out by an expert qualified in both computer science and

genetics in the two weeks between jury selection and Dr. Perlin’s testimony. Even if the code

had been reviewed, and an analysis provided to trial counsel, at best it would have resulted in

counsel challenging Dr. Perlin on an alleged error in the code. While it is impossible to predict

the outcome of such cross-examination, the obvious response to any alleged coding error would

have been that the system had proven time and again to provide accurate results when compared

to known samples.'? Thus, any challenge based on an alleged coding error would be particularly

unpersuasive if the system itself was shown to be reliable.

"The Court should recognize the defendant’s request for what it was, an attempt to place

the People and/or Cybergenetics in the disadvantageous position of requiring disclosure of the

code as the price for admitting TrueAllele results. The defendant never engaged in any action

that would indicate he was prepared, or even intended, to analyze the source code in order to

attack and undermine Dr. Perlin’s testimony. If that had been the defendant’s goal, the People

'S This was unchallenged during the Frye hearing.

18

submit he should have at least analyzed the written materials and raw data, identified any

inconsistencies or information gaps, and set forth an argument that access to the code was

therefore necessary. Had the defendant made such an effort and presented a cogent and reasoned

purpose for needing access to the code there would be more merit to his position, but he has

never done this.'4

While the defendant dismisses the impact that disclosure would have on Cybergenetics

as irrelevant, such an impact cannot be disregarded so easily. The defendant never sought

disclosure combined with a protective order, meaning that if the source-code had been disclosed

it could have been disseminated widely without consequence. The criminal justice system relies

on private companies to invest and develop technology such as TrueAllele. These companies

would be substantially affected if the trade secrets that underlie such technology were forced into

the public domain. As mentioned above, this would affect not only TrueAllele and other expert

DNA systems, but the computer codes supporting every other aspect of DNA analysis, every

automated aspect of drug, alcohol and ballistic analysis, and every other automated system that is

involved in forensic analyses. Likewise, a holding that the source code for TrueAllele is a

‘declarant’ under the Sixth Amendment would similarly require disclosure of the source codes of

each of the above systems, as well as any computer that contributed to the production or

assembly of evidence. Additionally, because the petitioner’s argument is based on a right of

confrontation, it would require a criminal defendant who seeks to offer such evidence to obtain

and disclose any relevant source code as well.!°

** If the defendant had sought to subpoena the source code perhaps this analysis could have occurred, but he did not.

*5 Cybergenetics has contributed to numerous exonerations over the last ten years, including Johnny Lee Gates a

former death row inmate whose claim of racial discrimination during jury selection was acknowledged in state court.

but relief was denied because the errors had not been properly preserved.

19

Even if this Court were to believe that the defendant’s petition deserves consideration

based on his confrontation clause claim, it should still deny certiorari because the New York

State Court of Appeals determined that, absent the evidence produced by TrueAllele, the other

evidence of the defendant’s guilt was overwhelming. Therefore, regardless of this Court’s

determination, the defendant’s verdict would remain unchanged.

Even if the defendant’s claim had merit and the evidenne were not overwhelming, if this

Court — ever to determine that the code was improperly kept from defendant it would not

require reversal. In that case the Court should order disclosure (pursuant to a protective order)

and defendant could review the code to determine if it contained an error that would have

discredited the results. If the defendant cannot demonstrate that he suffered prejudice from the

lack of access he would not be entitle to reversal of his conviction.

Ill. CONCLUSION

The petitioner’s request for a writ of certiorari should be denied.

Respectfully submitted,

ROBERT M. CARNEY

Distri Attorney

———_—_—

U =

By: illianr

Assistant District Attorney

Schenectady County District

Attorney’s Office

Dated: October 12, 2022

20

No. 22-5588

IN THE

SUPREME COURT OF THE UNITED STATES

THE PEOPLE OF THE STATE OF NEW YORK

RESPONDENT

VS.

JOHN WAKEFIELD

PETITIONER

PROOF OF SERVICE

I, Catherine A. Dobies, do swear or declare that on this date, October 13,

2022, as required by Supreme Court Rule 29 I have served the enclosed

RESPONSE TO A PETITION FOR A WRIT OF CERTIORARI on each party to

the above proceeding or that party’s counsel, and on every other person required

to be served, by depositing an envelope containing the above documents in the

United States mail properly addressed to each of them.

The names and addresses of those served are as follows:

Matthew C. Hug, Esq.

Hug Law, PLLC

P.O. Box 14263

Albany, New York 12212

I declare under penalty of perjury that the foregoing is true and correct.

Executed on October 13, 2022 7 Vis

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DENISE M. HALEY

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