00:00:00.000...determinations are not proper for the court to make here for the whole reason that, you know, studies supporting this science, studies opposing this science,
00:00:10.540testimony from this expert or that expert about what is reliable, what is not, what's more reliable, what's less reliable, factors that affect all those determinations,
00:00:19.180those are all very, very complex decisions.
00:00:22.440There will be probably multiple-day hearings dealing with that.
00:00:26.580And a probable cause determination is just not the place to conduct that kind of thorough, in-depth, and searching analysis.
00:00:32.760Rather, the case law, the Constitution of Utah that says the only purpose of a preliminary hearing is determining probable cause,
00:00:40.120the case law, the rules that all say the court does not weigh the evidence at this stage,
00:00:45.040but leaves that for a finder of fact, the jury in the end.
00:00:48.040And that all supports cutting this line of questioning off at this point
00:00:54.000rather than going on into greater depth, Your Honor.
00:01:30.120Did that in this report conclude that it remains unclear if visual inspection renders consistent number of contributor estimations across analysts over time?
00:02:58.600So actually, each time you run the software, you will get a different number based on the math that the software system does.
00:03:06.520But there are studies and validations that show we don't expect that math to be greatly different, usually by a factor of 10.
00:03:15.480Changing the number of contributors, it depends.
00:03:17.940If you have a major contributor, someone who's made up most of that DNA profile,
00:03:23.760if I originally interpret something as three, calculate a statistic,
00:03:27.940if that major contributor is the individual that I'm comparing to,
00:03:31.980If I change the number of contributors to two, based on the studies and based on my own experience, it doesn't change the likelihood ratio of that major contributor by much.
00:03:45.380And you just said, I think, that even when you put in the same parameters, you don't get the same answer if you run it through SDR mix more than once, right?
00:03:55.460That is correct. Based on how StarMix utilizes math and distributions, you will never get the
00:04:02.160same answer twice, but it will be no more than a magnitude of 10. So that test is not
00:04:11.200reproducible in the sense that you can run a sample or your assumptions in there 10 times,
00:04:18.580you could get 10 different answers. That is true. Again, the first time I run StarMix,
00:04:24.740I'm not going to get a likelihood ratio of 10 and the second time get 10 quadrillion.
00:04:29.300I might get 10 quadrillion the first time, 2 quadrillion the second time,
00:04:34.320but even if I run it 10 times, I'm still going to get around the same likelihood ratio value.
00:04:39.920Now, could you look at tab number 4, your case notes at page 365,
00:04:46.620if you could bring that up to the witness?
00:04:54.740Let me know when you have that in front of you.
00:04:57.760I think you need to scroll up one page.
00:09:43.320Before I issue a report, before I write a report, I review all of the case notes.
00:09:49.640So that will be any communication log entries, any documentation from the laboratory, the biologists that perform the DNA testing.
00:09:59.100I will review all of that, write a report, and then give that to a technical reviewer.
00:10:05.620They will draw their own conclusions to determine if they agree with me.
00:10:10.120If they do, they will sign off, and then my report and my case file will go for an administrative review
00:10:16.280to make sure that the laboratory number is correct on all the pages,
00:10:22.740that if there's any crossouts, there's dates and initials and so forth.
00:10:25.940Those two reviews have to be done before I can actually make it a final report and case file
00:10:31.560that gets submitted and sent to the field.
00:10:34.180And in this case, correct me if I'm wrong, but the sequence was you originally determined in seven, sample seven, that there were three contributors.
00:16:50.220Your Honor, I think this exhibit is particularly important because the court does not yet have in front of it what an electrophairogram is and how it's interpreted.
00:17:00.520And this particular page will illustrate to the court how the analysts interpreted the peaks on this electropherogram to reach the conclusions that she reached, that there were three and not two contributors.
00:17:15.820And I think it will assist the court in determining exactly how this comparison process works and what the output looks like so the court can see exactly how the interpretations are being made.
00:17:27.160and is this the dose that we're relied upon uh in i'm so i'm viewing stays exhibit 31 as a summary
00:17:37.940and this more of showing the work of how the summary was reached am i misunderstanding how
00:17:44.220this fits in this fits into uh how the analyst originally was of the opinion that there are
00:20:42.920Each of those rectangles at the top, for example, D2S441,
00:20:48.420that is that small segment of DNA that I referred to earlier.
00:20:52.440And each of those peaks has a corresponding number that is the allele, so that corresponds to the number of repeats that an individual inherited.
00:21:02.640And this is why you ultimately, you get this electropherogram not through running it through SDR mix.
00:21:12.200There's a different device that you use to produce these electropherograms, right?
00:21:17.960Correct. Yes. During the DNA process, this is the last step of that process. So what it's doing is it's, so we, DNA is found in cells of our body. We're taking those cells, we're breaking them open with chemicals to release the DNA from those cells. We're making photocopies of those pieces of DNA so that we can essentially see them.
00:21:40.940And then the last step is to separate those pieces by size, and the ultimate output is this electropharogram.
00:25:50.200Because I'm able to use information below the threshold and I see peaks, that gives me an indication that I can increase my number of contributors to three, which I did in this case.
00:29:39.000based on my comparisons, I did see evidence that that person was there.
00:29:45.620But I guess what I'm confused about is we talked before about how your language should never imply an absolute identification.
00:29:53.580But in the body of your report, you say that one of the contributors is Twiggs.
00:29:58.740You don't say he's a possible contributor like you do for Mr. Robinson.
00:30:03.080You say he is a contributor. Do you not?
00:30:05.560I do. And with elimination samples, that's slightly different. So for example, let's say I have a sexual assault case and I have a vaginal swab from a female. She has a consensual partner. I can request an elimination sample from that consensual partner. If I see that they're present, I can say they're present and say the DNA foreign to that victim and that consensual partner is one person, for example.
00:30:30.560So it's different than comparing a known individual if they're an elimination sample.
00:30:39.160I can say that I expect their DNA to be there.
00:30:42.620And based on my interpretation and reviewing that data, they are present.
00:30:47.900And based either on your conversations with the agents or other people,
00:30:52.280why did you think that twigs was someone whose DNA you would expect in those two samples?
00:30:58.920So from what I recall, in speaking with the investigators, Mr. Twiggs was a roommate of Mr. Robinson, and it was thought that those items came from potentially Mr. Robinson's home.
00:31:14.520And I don't recall exactly if it was a situation where a particular towel was known to have been in that house.
00:32:53.940So in calculating the likelihood ratio, likelihood ratio compares the probabilities of seeing a DNA profile given one of two different scenarios or explanations or hypotheses.
00:33:05.980One is that a particular person of interest is a contributor, and the other is that an unknown unrelated individual is a contributor.
00:33:12.780So depending on the question being asked is how I set up STAR-Mix, number of contributors.
00:33:19.720For example, if I'm utilizing someone as a known elimination sample, I will apply their DNA profile both to HP and HD.
00:33:28.960And the theory of this, HP is the prosecution hypothesis, right?
00:39:01.080We're going to go and get Wendy Patrick is with us.
00:39:04.380We're going to get Wendy up in a second.
00:39:05.540for many of you of a certain age that may be reminiscent of the OJ trial right now into the
00:39:11.960DNA section. If that doesn't make your eyes cross, nothing will. You're pretty true. I think the
00:39:17.340purpose of this is to sit through it. And those of you who go through the entire thing will
00:39:23.380have a vote as your grand jury members, maybe on Friday, see where you're coming up.
00:39:28.400So, Wendy, Patrick, Wendy, can you get us up to speed on how you've observed this today and what is important?
00:39:37.020What's the wheat and what's the chaff?
00:39:39.520I observed it with much interest, Steve, because having put on plenty of these witnesses in years past,
00:39:45.220I thought this witness did a pretty good job of explaining the process, not just the process, though,
00:39:50.720the process of elimination of a known sample of an unknown contributor,
00:39:54.840And also how it can be true that an original assumption that there's three people could very easily be narrowed down to two.
00:40:03.340You know, at first glance or at first listen to a jury who doesn't know a lot about DNA, it might sound like, wait a minute, you know, this is so different of a result.
00:40:11.380But actually, upon examination, she was able to very competently explain it.
00:40:16.200I would say the same thing regarding the testimony that comes out with different numbers.
00:40:21.980She narrowed that down by saying, yes, the more you run it using the math, you'll get different numbers.
00:40:27.560But then she gave the examples of, you know, 10 quadrillion and 2 quadrillion.
00:40:31.200And I know it's probably even less than that.
00:40:33.620So we're still up in the quadrillions, which is usually where I turn to the jury and say to the expert, tell this jury how many zeros that is, basically to determine that it sounds like a match.
00:40:44.820But the prelim is the chance to do exactly what you and I and our viewers just watched.
00:40:49.400test the scope of the evidence in terms of the way the witness is going to explain it.
00:40:54.360That helps both sides hone their strategy as to how they're going to approach that trial.
00:41:07.100What is the purpose of the entire thing of trying to show whose DNA is on what?
00:41:12.980Because the tau, we don't even know if the tau came from the location.
00:41:17.560It was just found out in the woods, correct?
00:41:19.400Well, yes, but where was it originally? Apparently it was at the defendant's house. And so the purpose of these types of questions and this line of questioning is just a process of connecting the dots to the rest of the evidence, to the sniper portion of the testimony.
00:41:35.920You know, you had the items that were arranged, to the bullets, to the gun, to the trigger of the gun, all the rest of the places where the same DNA was found.
00:41:44.980And then putting the two of them together is also relevant because that's also part of the testimony and the storyline, the timeline that's going to emerge.
00:41:53.580So it's just tying it up neatly, well, as neat as you can at a crime scene like this, tying it all together in a fashion that will make it not only easy to argue at the end of the prelim, but also easy to think through the way in which you're going to present it at trial.
00:42:08.080You know, sometimes we call witnesses out of order because we have to.
00:42:11.460But ideally, once you've heard what they're going to say at prelim, you're better able to put them in the order you think would be most beneficial to your case.
00:42:20.780Do you think that the prosecution is the prosecution tipping their hand too much to make sure that they get the permission to to go to trial?
00:42:28.420You think they're giving too much information here or do you think this is the appropriate amount to make sure?
00:42:33.060because their objective here is to make sure that they, on the seven charges, all seven charges go
00:42:37.820forward, but most importantly, that this still is a capital murder case, correct?
00:42:43.120Absolutely. And I think that it's appropriate. And part of the reason I say that is we know that0.83
00:42:48.320the judge keeps reminding everyone it's just a probable cause hearing, which always makes me
00:42:52.560suspect that he's already heard enough evidence, and both sides have to pick up on that as well.
00:42:56.920But the prosecution also faces an uphill battle when facing a defense attorney that literally
00:43:02.040objects to everything. You know, there are so many trials where both sides stipulate to large
00:43:07.380portions of evidence. This is not one of them. So they're going to put in everything they can
00:43:12.320just to make sure they don't leave any loopholes for the defense to argue at the end of the prelim
00:43:17.300because if they don't establish factually all the charges at prelim, they're not going to have
00:43:21.320another shot between prelim and trial. The difference, can you describe for the audience
00:43:26.940The difference, the fundamental difference, I guess, the most important difference between this type of evidentiary hearing in Utah and going to a grand jury.
00:43:36.700In a grand jury, you don't have the defense there.
00:44:03.980But, Steve, the prosecutor has to know they can convict the ham sandwich before they take a case to the grand jury because otherwise it would be in bad faith.
00:44:12.300But you did point out the biggest difference is it's one-sided.
00:44:16.000You just have the prosecutor, but you don't just have the prosecutor's facts and evidence.
00:44:20.660The job of a prosecutor presenting to a grand jury, they're supposed to present both sides.
00:44:25.140They're supposed to present all of the evidence, which is why we often second-guess grand jury
00:44:30.620verdicts, because we think if it's a secret proceeding, how do we know what evidence was
00:44:35.640presented? So that's one of the reasons that a prelim like this is much more transparent and
00:44:41.220allows the public, the court of public opinion, and the judge sitting as a magistrate in the court
00:44:46.140of law, all to weigh the strength of the evidence at the same time. And that is what you're seeing
00:44:51.640happen here, which is different than what would happen at a grand jury if we ever got to learn
00:44:57.060about the proceedings to begin with, because most of them are secret. Before we got to the DNA part,
00:45:03.340when we left you this morning, there was going to be video. I think there's going to be movement
00:45:07.180around the campus, how many times the campus. Don Jr., I think, tweeted out that the guy had
00:45:14.180been on the campus, I think, four times within a certain date. And nobody, you know, it didn't
00:45:19.840raise anybody's eyebrows. What can you say about the morning testimony? Yeah, there was more of
00:45:27.040that. There was more establishing that the defendant here was on campus four times. And
00:45:32.360that's important because, you know, apparently he targeted Charlie Kirk. And that was something
00:45:37.160important to point out. Also, along those same lines, there was testimony about one of the
00:45:41.700officers spotting the place where the sniper probably set up. That's important because,
00:45:46.960remember, that's where the DNA was found. That's where sort of the sniper's perch was found. So
00:45:50.880this officer was pretty good instinctively in recognizing what would have been a logical
00:45:55.920vantage point for that shot, that fatal shot. So yes, there was more evidence today, and the
00:46:01.060prosecution cleaned up some of the evidence that wasn't admitted yesterday to make it proper today,
00:46:05.880like the original version of a particular video. So what we're seeing as the days go by,
00:46:11.440Not only are we having more evidence presented, but we're having evidence that was not inclined to be admitted, according to the judge, now admitted because a proper foundation has been laid.
00:46:21.480That's going to benefit both sides in terms of what they think about as they prepare for trial.
00:46:26.900What do you mean a proper foundation has been laid?
00:46:32.120For a layman, it basically means if you're going to introduce something into evidence, let's say it's an object, it's a bullet or even an opinion as to what happened.
00:46:41.440The witness has to be able to say, this is how I know it's true.
00:46:45.460In other words, these are the facts and circumstances I've analyzed in order to be able to say with confidence that this object was what it's supposed to be, what it's purported to be, really does link up with these other portions of the evidence.
00:47:00.020And that's important because a foundation without evidence is not a good opinion.
00:47:03.720It would be like an expert saying, my opinion is that this defendant fired the bullet without going through all of the things that he or she considered and looked at and listened to to be able to tie it all together to come up with that conclusion.
00:47:18.140So the perfect example from yesterday is yesterday there was video footage that a judge ruled was inadmissible because the prosecution didn't have the proper person there to explain the changes that were made to that footage.
00:47:30.760Once you bring in that person and they're able to explain what they did and how the video may or may not have been changed, then a judge can be more confident that this is a reliable piece of evidence.
00:47:40.500Because even though it's a probable cause hearing, one of the things we saw argued about an hour and a half ago was a judge reminding everybody that, yes, it's probable cause, but he has to understand that the evidence is reliable before he admits it as something that he can consider in determining whether there's enough evidence to proceed.
00:47:58.500You said the other day that there's all types of strategy and tactics.
00:48:02.400Is that where we see the strategy about this foundation, that they're thinking four or five moves ahead and they're actually thinking four or five moves ahead of one of the trials a year from now of what they've got to lay a foundation today to be able to bring in a piece of evidence?
00:48:17.500And that's an excellent analogy, because when you think about strategy and being four or five moves ahead, what you're doing is thinking about, well, these are the judges' rulings during the prelim.
00:48:28.360How then do I think towards trial and call the witnesses I need to call to establish what I need to have an expert give an opinion, for example?
00:48:37.160or one of the law enforcement officers to be able to give an opinion
00:48:40.640as to why this bullet would have come from that vantage point
00:48:45.320and why the defendant would be likely to be the person in this particular video
00:48:50.040when you can't pick him out from so far away, for example.
00:49:01.460I'll tell you, Steve, one of the biggest challenges
00:49:03.160between a prelim like this and a trial possibly a year away
00:49:07.100is keeping the momentum going because most prosecutors and defense attorneys have a heavy
00:49:12.200caseload. So if the trial were to be next week, both sides would be in an excellent position to
00:49:17.020remember what happened this week. They've got to take that time and use it wisely in continuing to
00:49:22.980build the momentum between prelim and trial. One of the controversies was about the officer's
00:49:29.060body camera and the battery going out. This screwdriver now that shows Twig's DNA on it,
00:49:35.920Just the whole finding of the screwdriver and then associating Twiggs, the furry boyfriend, to the alleged assassin.
00:49:46.800I guess it's important that they're laying out that there's DNA on the towel and the screwdriver.
00:49:52.220Will that cause even more controversy since the screwdriver itself is controversial enough?
00:49:58.240Well, it shouldn't, but it's something the defense can argue.
00:50:01.800You know, sometimes in cases where there's a lot of pieces of evidence found in different places, it allows the defense to sort of, you know, make it make an argument that, well, we don't necessarily know that these objects are related because they were all found in different places.
00:50:15.980But that's where the DNA comes in. If they all came from the same two people, if they all arguably came from the same location, what are we doing?
00:50:24.840We're using circumstantial bits of evidence that if we didn't have DNA might not mean anything and tying them together and tying them to this defendant who happened to live with the only other person whose DNA was located on the same items.
00:50:38.940That's the way the prosecution is going to present it.
00:50:41.960Wendy, before we let you take a break and before we go back, any other highlights from the day you think the audience ought to take in their notebook and just underline?
00:50:48.940I think it was interesting that we got a sneak preview of what kind of cross-examination some of the analysts are going to face when you had the argument to admit some of the studies.
00:50:59.180Now, the judge was very good about saying this isn't a trial.
00:51:01.680We're not going to go into, you know, psychological or evidentiary studies.
00:51:05.500But we know that's coming because we saw a little bit of that already.
00:51:08.940So I think it just goes to show what kind of a case is coming, that it will be relying not only on physical evidence, but also on reliability of the kinds of physical evidence these experts relied on in arriving at their conclusions.
00:51:23.440I'm going to ask you a quality questions.
00:51:26.160What you've seen so far, and we're not through the second day of it, how would you assess both the prosecutors and the defense teams?
00:51:33.560Yeah, I think that's one of the areas that I've been noticing most frequently and most fervently when it comes to what kind of a case this is.
00:51:55.440They are very willing to make their records even when the rulings are something other than they expect.
00:52:00.860And that's going to be very important when it comes to trial.
00:52:03.560because the jury is not going to like one side or the other basically behaving badly.
00:52:07.960I'll say that as a mild way to to portray what we sometimes see in trials that are this contentious.
00:52:14.520So far, so good. And I can only hope that they carry that momentum from the prelim through the year.
00:52:19.060So it's going to take to actually get into a trial courtroom as you've seen the first two days of the first day.
00:52:24.540And let's say two thirds. Have you noticed or is anything gone, any alarm gone off that you feel one or one or both sides have missed something?
00:52:33.120have screwed something up, have made a strategic mistake that will come back to bite them
00:53:53.120I'm hoping we'll hear even more of that tomorrow.
00:53:56.380Sometimes a prelim that's going to be multi-day sort of warms up as the days pass.
00:54:00.620But the judge is definitely going to be laser focused as the testimony comes out in picking out those pieces of evidence that we're hearing that are going to go towards that ultimate conclusion.
00:54:10.640Because you're right, it is the ultimate penalty on the table, death penalty in this case.
00:54:14.960For the seven charges, including the death penalty, do you see, given the thoroughness they're taking on some of these topics, do you see this actually ending with the decision on late Friday afternoon at 5 p.m.?
00:54:31.640I think that the judge's goal is to have that happen, and I think the reality that he's been stating at least once or twice every single day, reminding everybody it's a probable cause hearing,
00:54:43.320he's probably going to try to get everyone to stick to that schedule.
00:54:46.760I wouldn't be surprised if you even hear that in open court at some point,
00:54:50.220in addition to reminding everyone it's just a probable cause hearing, because that's his goal.
00:54:55.240Now, Steve, one question that still hangs out there for me is whether, let's say the evidence is finished on Friday,
00:55:01.480whether or not the judge is actually going to give his ruling on Friday,
00:55:04.940or whether he's going to take the weekend to really put his thoughts together concisely to make a dynamite record Monday morning.
00:55:15.120I just think this thing sounds so thorough.
00:55:18.280There's so much been presented, and we're only on Tuesday afternoon.
00:55:21.080I would assume I'd take the over right now on him taking the weekend and pulling it together to come back Monday because the whole world is watching this trial.
00:57:31.880He's using his leverage, right, having really been the, you know, beating the governor by such a, the sitting governor by such a large amount.
00:57:42.480He's using his leverage and his leverage particularly on the more left-wing side or populist side of the Democratic Party.
00:57:51.500He says, hey, I will step down when I can pick who my successor is going to be.
00:57:56.680So that's they're having a firestorm over there.
00:58:22.700You're seeing the Democrats in a total meltdown.
00:58:26.820I think what's most important there is that the Democrats have no qualms about changing voting procedures, changing dates.
00:58:35.520If the 13th doesn't work, it's supposed to be next week chosen.
00:58:38.260If they need more time, they'll take more time.
00:58:40.900They will do whatever it takes to get the best candidate to run against the Republican.
00:58:47.860And look about the redistribution. We left nine seats on the table because established Republicans, it was it was too tough for them to get grease under the fingernails.
00:58:57.680I'm particularly in in Georgia and parts of the deep south. I think Alabama, Mississippi and Louisiana.
00:59:05.380We left. I don't know. You add Texas in there. You add Indiana.
00:59:10.840There's another eight or nine seats that just was too much heavy lifting for the Republicans.
00:59:16.080Look at the Democrats. If something happens there in the will of the voters, they could care less.
00:59:20.740They're going to change things around until they get whatever they have to do, manipulate whatever they have to manipulate in order to get a candidate that can win.
00:59:29.380I continue to say if they can't cheat, they can't win. If they can't steal it, they can't win.
00:59:35.620But when they're dealing with their own party and their own primaries, they have no qualms whatsoever.
00:59:39.920And on this, I think it makes a lot of sense.
00:59:45.060In Georgia and Louisiana, all you heard was all this, oh, my gosh, we've done this.
00:59:50.700Hey, what people want to do is they want to win.
00:59:54.500And they want to have a path to victory that's out there.
00:59:57.480We left, just write this down with your number two pencil.