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"Let's just test everything!" - A discussion of all the tests requested in the Motion for Post-Conviction Scientific Testing (AKA: The tZellnami)

2016.10.13 04:49 Osterizer "Let's just test everything!" - A discussion of all the tests requested in the Motion for Post-Conviction Scientific Testing (AKA: The tZellnami)

Greetings Guilters!
Hey - remember the tZellnami? That was that motion Zellner and Bushnell filed in August that asked for "the most comprehensive, thorough, and advanced forensic testing ever requested by a criminal defendant in the State of Wisconsin."
I spent some time going through it, listing all the items requested, and reading up a bit on most of the tests. What follows is "the most comprehensive, thorough, and advanced discussion of the tZellnami ever presented in any corner of the MaM-inspired reddit multiverse."
It is almost entirely my own opinion so please feel free to disagree with any part of it, ask questions, or point me toward sources that could help fill in the gaps in my own knowledge or in the motion itself.
The testing as described in the motion is organized into the following sections that I'll discuss individually below:
 
DISCLAIMER: While I am a real-life scientist, I claim no expertise in any of the fields discussed below, nor anything more than a lay-person's understanding of the law or post-conviction procedures. I cited sources where I felt like it so take it for what it's worth.
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"New Testing for Sources of DNA"

What are they testing for? The described RSID testing looks for the presence of tissue-specific proteins (amylase for saliva, glycophorin A for blood). It will be performed by a private forensics lab (Independent Forensics).
 
Items Requested:
Item CASO Tag What is it? Notes
ID - Swab of "sweat DNA" from hood latch Saliva protein testing
C 8114 RAV4 key (wrong tag number in motion - 7620 is the RAV4 key) saliva and blood protein testing
 
Will it work? I doubt it. This is a straight-forward lateral flow immunoassay - nothing advanced or novel about it - and while it seems to be pretty sensitive on fresh samples it is unknown if it will be able to detect saliva and/or blood proteins 11 years after they were deposited on these items (in what would likely be relatively small amounts).
 
How could the results help Avery? If they find evidence that proteins from saliva or blood are present on these items Zellner can argue that Avery's DNA was planted on these items. However, even in the unlikely scenario where they get a clean detection of these proteins this would not definitively prove the DNA wasn't deposited by Avery himself during the crime.
 
What risk is he taking if he's guilty? There is no risk to Avery in performing these tests since any negative results can easily be explained away as the result of protein degradation occurring over the last decade.
 
 

"New DNA Testing"

What are they testing for? Although no details on the tests are given, it's clear they are: 1) looking for the DNA of "the real killer;" and 2) trying to show that burnt materials found at the quarry are indeed human remains. These test will also be performed by Independent Forensics.
 
Items Requested:
Item CASO Tag What is it? Notes
IE 9189 Swab of left battery cable
IF 9190 Swab of right battery cable
AJ 8313 Rear license plate of RAV4
AK 8305 Front license plate of RAV4
A15 - Blinker light found inside RAV4
A16 - Lug wrench found inside RAV4
IB - Swab of RAV4 exterior passenger door handle
IC - Swab of RAV4 interior passenger door handle
IE - Swab of left battery cable Listed twice in this part of the motion for some reason
IF - Swab of right battery cable Listed twice in this part of the motion for some reason
IG - Swab of RAV4 interior driver's door handle
IH - Swab of RAV4 exterior driver's door handle
CV 8324 Panties from trailer near license plate car Zellner uses wrong CASO tag: 8324 is "a front driver's seat cover bronze Honda Civic." 8325 is the panties
A - The RAV4 Asks to test "the bar that moves the seat in the RAV4 forward," "the prop bar which holds up the hood," and "the interior hood release."
- 8675 Alleged pelvic bones from the quarry
- 7958 "Burnt material" from the deer camp A five-gallon bucket of burnt material - sifted and no bones were found
- 7963 "Burnt material" from the deer camp A five-gallon bucket of burnt material - bones sifted from this barrel are tagged as 7429
 
Will it work? Probably not. Zellner doesn't cite any sources or give any details on the DNA testing they want to perform, but simply claims that this "new and improved" testing is "more sensitive." I've looked around haven't found any evidence that touch DNA can be detected 11 years later, or any evidence that DNA amplification methods have made some huge leap in the last decade (please point them out if I have missed them!). The lab doing the testing appears to be just a regular forensic lab that doesn't claim to do any form of crazy-advanced DNA testing. Absent new information I'm very skeptical that they will find any usable DNA more than a decade after it was deposited.
Considering that the pelvic bones from the quarry failed to yield mtDNA 10 years ago I don't see any reason to think they could get something out of them now. The two items of "burnt material" she asked to test are buckets filled with debris that were already examined for bones - no bones were found in 7958, and the bones sifted from 7963 were re-tagged as 7429. Since I don't know what she plans to test in those buckets it's impossible to say what the chances of finding DNA would be.
 
How could the results help Avery? Depends on whose profile they find. If it's EWE, or another member of the Avery/Dassey family, or "individual A" - then they might have something. But if it's anyone that knew TH, the problem is that there's no way to tell when that DNA was left there. It could have been left while they were committing the crime, or six months before that when they were helping her change a tire or something. If they show that the pelvic bones or "burnt material" from the quarry are TH then they can definitively say that human remains were found at a third site off Avery property. This possibility was suggested at trial but without hard evidence to support it.
 
What risk is he taking if he's guilty? Although I think it's very unlikely they find anything at all, Avery is taking a bit of a risk here in that they might find his or BD's DNA on these items thus proving them even more GAF. In that case Avery will just say they planted that DNA too.
 
 

"Radiocarbon Testing to Determine Age of Blood in RAV-4"

What are they testing for? Put simply, this test tries to determine the calendar date when the blood in the RAV4 left Avery's body. The testing will be performed by Kirsty Spalding at the Karolinska Institute, who apparently contacted Zellner after watching MaM because she thought "here is this guy still in jail and they haven’t been able to conduct a proper test of this blood."
The extensive above-ground nuclear testing of the Cold War era led to a substantial increase in atmospheric levels of the radioisotope carbon-14. Since the cessation of these tests around 1963 carbon-14 levels have been declining exponentially. As living cells continually incorporate atmospheric carbon into their macromolecules, the carbon-14 levels in living tissues reflect current atmospheric levels. Upon death cells cease exchanging carbon with the atmosphere, and therefore the carbon-14 levels in dead cells and tissues can be used to estimate the date at which death occurred.
 
Items Requested:
Item CASO Tag What is it? Notes
SA - EDTA tube of Avery's blood from 1996
A6 - RAV4 blood stain - cutting of driver's seat fabric
A7 - RAV4 blood scrapings (?) - center console "reddish/brown crusts recovered from the floor between the center console and driver's seat."
A8 - RAV4 blood stain swab - ignition
A9 - RAV4 blood stain - cutting of passenger's seat fabric
A10 - RAV4 blood stain swab - CD case
A12 - RAV4 blood stain swab - rear passenger door frame
G 651 Garage floor blood stain swab
I1 653 Garage floor blood stain swab
J 654 Garage floor blood stain swab
K 655 Garage floor blood stain swab
O 639 Garage floor blood stain swab
P 659 Garage floor blood stain swab
Y 7116 Trailer blood stain swab - bathroom floor
AA 7104 Trailer blood stain swab - "molding around a door"
CF - Trailer blood stain - cuttings of fabric of Avery's couch
CG - Trailer blood stain - cutting of fabric from Avery's couch cushion
CQ 7627 Trailer blood stain swab - living room door
CR4 7623? Trailer blood stain swab - sink
 
Will it work? Maybe. The major concern with this test is that the precision with which it can determine the date of a given biological sample decreases as time goes by because carbon-14 levels decrease exponentially. However despite some issues about the precision of determining the exact date for the blood, I think comparing the results from the blood in the RAV4 with both the blood in the EDTA tube (from 1996) along with some other stains of Avery's blood that are contemporaneous with the crime will likely provide strong evidence whether the blood was planted or not. I'm very curious, however, why they asked to test samples from the garage and trailer rather than what I would consider better controls: Avery's blood in the Grand Am, and TH's blood in the RAV4.
 
How could the results help Avery? If the carbon-14 levels of the blood in the RAV4 differ markedly from the carbon-14 levels in other contemporaneous samples of Avery's blood and closely match those in the blood in the EDTA tube - that will be very strong evidence that the blood was planted from the tube. However, this result would be in clear contrast with the EDTA test, and I'm not sure how that would be resolved in a courtroom.
 
What risk is he taking if he's guilty? There isn't much risk here for Avery because if the carbon-14 levels in the blood in the RAV4 show that the blood wasn't planted, Zellner can argue that contamination from environmental sources of carbon (such as dust, fibers from the Q-tip, Armor-All, fabric from the seat, mustard from the sandwich Colborn was eating while he planted the blood, etc.) caused this result and move on to her back-up plan (see below).
 
 

"Alternative DNA Methylation Testing to Age Mr. Avery's Blood in Victim's Car"

What are they testing for? While the 14C testing attempts to determine the calendar year in which the blood left Avery's body, this DNA methylation test attempts to determine Avery's age at the time the blood left his body. The actual testing will be done by a scientist at the HudsonAlpha Institute, but the analysis of the methylation data will be done by Steven Horvath at UCLA. The technique is described in this 2013 paper by Horvath, which was updated last year with the most substantial "erratum" I've ever seen.
 
Items Requested:
Item CASO Tag What is it? Notes
A6 - RAV4 blood stain - cutting of driver's seat fabric
A7 - RAV4 blood scrapings (?) - center console
A8 - RAV4 blood stain swab - ignition
A9 - RAV4 blood stain - cutting of passenger's seat fabric
A10 - RAV4 blood stain swab - CD case
A12 - RAV4 blood stain swab - rear passenger door frame
B1 - Grand Am blood stain swab - front console (passenger's side)
B2 - Grand Am blood stain swab - front console (top)
B3 - Grand Am blood stain swab - front console (near window button)
B4 - Grand Am blood stain swab - gear shift
B5 - Grand Am blood stain - cutting of driver's seat fabric
 
Will it work? Maybe. As with the 14C testing, I think the testing as described is most useful as a comparative test rather than an "age of blood" test. The DNAm age can differ substantially from a person's chronological age (if I'm reading it correctly, this study with 2,029 individuals found a range from -4.3 to +8.5 years difference), and environmental factors such as diet and smoking status can affect the DNAm age as well. But comparing the methylation levels of the blood in the RAV4 with the blood in the Grand Am could be informative. I think the Grand Am swabs are a good comparison, but they really should have asked to also test the blood in the EDTA tube as well - not sure why they chose not to. There's also the practical issue that this test requires a lot of DNA, and some of the samples taken may not be sufficient for this testing.
 
How could the results help Avery? If the methylation levels of the blood in the RAV4 differ markedly from that of the blood in the Grand Am, that would suggest it's possible that the blood in each car came from two different sources. But the planting argument will be weakened because they won't be able to compare the DNAm age of the RAV4 blood with that of the blood in the EDTA tube.
 
What risk is he taking if he's guilty? This test is a bit more risky for Avery if he's guilty because I think it's harder to explain away a result showing that the DNAm age of the blood in both cars is the same than it would be to explain away 14C results that go against him. But I'm sure a good defense attorney would be able to find a witness to nitpick any GAF results (maybe Arvizu is still available?)
 
 

"Trace Testing"

What are they testing for? The stated goal here is to look for evidence of solvents, fibers, chemicals, or dirt on the items to be tested. The testing will be performed by Microtrace LLC - an independent lab that "prides itself on maintaining a state of the art microanalytical laboratory that contains the widest possible range of practical microanalytical methods for the isolation, characterization, and identification of small particles, residues, and microtraces."
 
Items Requested:
Item CASO Tag What is it? Notes
C - RAV4 Key "re-test the key for any evidence of solvents or fibers that may have been used to remove the victim's DNA from the key."
BU 8490 buccal swab taken from Avery in 2005 "microtrace testing of the buccal swabs to determine if there are any other materials or chemicals (such as dirt) on the swabs."
W - buccal swab taken from Avery in 2003 "microtrace testing of the buccal swabs to determine if there are any other materials or chemicals (such as dirt) on the swabs."
 
Will it work? This whole section of the motion sounds like bullshit to me, but this isn't my field so I have no idea whether these are legit tests or not. According to the motion each item will be "subjected to examination by various light sources such as near infrared, infrared, and ultraviolet light in order to detect any unusual or unexpected regions, particles or stains that may not be visible under ordinary illumination." Also, they will use every piece of equipment in the lab ("stereo-microscopy, bright-field and phase contrast microscopy, polarized light microscopy, fluorescence microscopy, scanning electron microscopy (SEM), energy dispersive x·ray (EDS) spectroscopy, Raman spectroscopy, and micro x·ray fluorescence (XRF) spectroscopy") to look really hard at these items. Without knowing what solvent they think they will find on the key it's not possible to know if these tests will find it.
 
How could the results help Avery? Some dirt on the swabs might be something but it would hardly prove planting, especially if they don't find any hint of saliva on the key or hood latch with the RSID testing. The motion states that they are looking for "any evidence of solvents or fibers that may have been used to remove the victim's DNA from the key," but there will definitely be fibers on it from other sources (like getting swabbed for DNA or RSID testing, dust, or being handled by the Reelz producer, etc.) and I can't think of a solvent they could find that would be an indication that someone other than Avery washed the key, but I'm open to hearing others' educated opinions on that.
 
What risk is he taking if he's guilty? None.
 
 

"Ballistics Testing"

EDIT: shvasirons provides some great insight on this test below, and I have updated this section with that information.
What are they testing for? Neutron Activation Analysis (NAA) will be used to "compare the elements contained within Item FL, the bullet fragment recovered from his garage, and the unspent .22 LR shells taken from his bedroom." This analysis will be performed by G. Nelson Eby at University of Massachusetts Lowell.
 
Items Requested:
Item CASO Tag What is it? Notes
FL - Bullet with TH's DNA on it
- 8436 Bullets found in Avery's bedroom
 
Will it work? No. Comparative bullet-lead analysis was performed by the FBI for years, but this analysis has been largely discredited and the FBI ceased performing it as of 2005. The analytical technique is fine, but the results have little probative value due to the way bullets are manufactured. Bullets with indistinguishable compositions cannot reliably be said to have come from the same box of ammo, and conversely bullets that are compositionally different cannot be said to have come from different boxes.
 
How could the results help Avery? As far as I can tell, the only use the results of this analysis might have would be to mislead and confuse potential jurors about its significance. Zellner claims in the motion that if "different elements are detected, then it would refute the State's theory that Item FL was shot by Mr. Avery, with the Marlin Glenfield Model 60 .22 rifle through the skull of Ms. Halbach." The National Academy of Sciences report on bullet lead evidence disagrees, however:
"In practice, the detailed process followed by each manufacturer varies, and the process can vary even within a single manufacturer to meet demand. For example, many bullet manufacturers add scrap lead from the bullet production to the melt at random times, sporadically changing the composition of the original melt. Likewise, the binning of bullets and cartridges may introduce more mixing of bullets from different melts. In fact, the FBI’s own research has shown that a single box of ammunition can contain bullets from as many as 14 distinct compositional groups."
Also, for some reason, Zellner is requesting an outdated method for this analysis (NAA) which the FBI stopped using in 1990 rather than the best-available technology (ICP-OES). There's definitely something fishy going on regarding this request.
 
What risk is he taking if he's guilty? None.
 
 

"Compelling Fingerprint Comparison"

I'm not sure why they threw these last two items together since they aren't really related. They also aren't "scientific" and require no further explanation than what's in the motion:
"Mr. Avery is requesting that a comparison be performed of the fingerprint standards of Officers Colborn and Lenk to any unidentified fingerprints standards from the victim's vehicle. If the unidentified fingerprints on the victim's vehicle match either Officer Colbor (sic) or Officer Lenk, it would be significant evidence of their involvement in moving the victim's vehicle onto the Avery property."
"Mr. Avery is requesting to examine items BM, described as a Motorola Razr phone and box from the victim's dining room [...]. The victim's Motorola Razr phone was allegedly discovered in Mr. Avery's burn barrel. The inability of the State to produce the Motorola phone located in the victim's residence (Item BM) would demonstrate that it was the phone placed in the burn barrel by law enforcement (contents of the burn barrel are Item AL)."
 
Items Requested:
Item CASO Tag What is it? Notes
- - AC and JL fingerprints "previously-obtained fingerprints of Officers Colborn and Lenk for comparison to the unidentified prints discovered on the victim's vehicle."
BM 7802 Phone and box from TH's house Zellner uses "D7802," but the item is listed as 7802 in CASO report; motion claims that if it cannot be produced it must have been planted in the burn barrel"
 
How could the results help Avery? Obviously AC and JL's prints on the RAV4 would definitely be an interesting (if potentially-explainable) development, but the thing with the cell phone is bizarre considering they collected the phone from TH's dining room three days after they found her phone in the burn barrel.
 
What risk is he taking if he's guilty? None.
 
 
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