dissenting:
Because I believe the complete failure to lay a sufficient foundation should have barred a key State witness from presenting critical DNA testimony, I must respectfully dissent.
This analysis requires some clarification of the facts of the case. The attack on the victim occurred on the night of February 2, 2000. A man grabbed the victim from behind, forced her into a beige station wagon, robbed her, sexually assaulted her, and then pushed her out of the car. That same evening the police stopped a man in a car near the crime scene who matched the victim’s description of her assailant. According to police testimony, this man voluntarily accompanied them to the hospital where the victim was being treated. When shown the man’s driver’s license photograph, the victim said he looked like her assailant, but she told the police officer that she wanted to see the man in person. A police officer took the victim to the hospital parking lot where the man was being held. That police officer testified at trial that when the victim observed this man, she positively identified him as her attacker. The police officer’s testimony was contradicted by the victim, who claimed that in the hospital parking lot she first saw the man sitting in a police car, and she had some doubts about whether he was her assailant. The police then took the man out of the car and she told them he was not her assailant. Although the victim claimed that she told the police officer that the man was not her assailant, nonetheless, it is undisputed that the police subsequently took her to the police station to look at the man again, at which time she said he was not her assailant. No DNA material was taken from this man. Fourteen months passed before the victim first identified another man, the defendant Williams, in a lineup, as her assailant. She had never seen the defendant before she was attacked.
The eyewitness testimony of the victim, if believed by the trier of fact without additional bolstering evidence, may meet the State’s burden of proof of the defendant’s guilt beyond a reasonable doubt. People v. Bannister, 378 Ill. App. 3d 19, 39, 880 N.E.2d 607, 625 (2007); see People v. Smith, 185 Ill. 2d 532, 545, 708 N.E.2d 365, 371 (2007) (stating this proposition of law, but reversing the conviction outright because of serious impeachment of the eyewitness which resulted in the State failing to meet its burden of proof). In this case the testimony of the victim, although impeached by her initial contradictory identification of another man as her assailant, could have been sufficient evidence of the defendant’s guilt. But it is clear that the State’s strongest evidence, which greatly bolstered the victim’s testimony, was the testimony of the Illinois State Police Crime Lab’s forensic scientist, Sandra Lambatos.
Lambatos testified that the DNA in vaginal swabs of semen recovered from the victim matched the defendant’s DNA. She described the odds of this match occurring as 1 in 390 quadrillion for white people, 1 in 8.7 quadrillion for black people and 1 in 109 quadrillion for Hispanic people. If valid, this is devastating evidence whether it is heard by a jury or a judge. The problem is that this testimony should never have been admitted because the State never established a proper foundation for its admission.
This court has repeatedly set out the foundation required before an expert may give his or her opinion based upon machine-generated results which are not in evidence. The State must establish a foundation which includes some evidence that the machine producing those results was functioning properly when it was used for testing. People v. Raney, 324 Ill. App. 3d 703, 709-11, 756 N.E.2d 338, 343-45 (2001); People v. Bynum, 257 Ill. App. 3d 502, 513-14, 629 N.E.2d 724, 732-34 (1994). The defendant in Raney was convicted of possession of cocaine with intent to deliver. A State forensic scientist from the Illinois State Police Crime Lab (Crime Lab) testified that she had used a gas chromatography mass spectrometer (GCMS) to determine that substances recovered from the defendant were cocaine. The witness testified that the results of GCMS testing were generally relied upon by experts in her field and that the testing she utilized was generally accepted in the scientific community. But she failed to provide any evidence that the GCMS she used was operating properly. Nor did she testify that she had done any testing to verify its accuracy or to determine that it was in good operating condition. Raney, 324 Ill. App. 3d at 707-09, 756 N.E.2d at 342-44. Raney had preserved this issue by objecting to the witness’ qualification as an expert, and by moving for a directed finding based upon a lack of foundation for this evidence. Because there was no competent evidence that Raney was in possession of illegal drugs, we reversed his conviction outright for lack of sufficiency of the evidence. We first set out this standard in Bynum, holding that an insufficient foundation was laid for the opinion of an expert witness concerning the nature of drugs recovered from the defendant because the State’s expert did not testify that the GCMS was generally relied upon by experts in the field. The expert also failed to testify regarding how the machine was calibrated or how she knew the results of this analysis were correct. Bynum, 257 Ill. App. 3d at 513-14, 629 N.E.2d at 732. However we then found this issue to have been waived by the defendant because he did not object to it at trial. Bynum, 257 Ill. App. 3d at 514-15, 629 N.E.2d at 732-34.
As the majority notes, in the case before us there is no question of waiver or forfeiture. The defendant properly preserved these issues by contemporaneous objection at trial and in his motion for a new trial. Accordingly, the holding of Raney is directly applicable to this case. Over the defendant’s objection, forensic scientist Sandra Lambatos was permitted to testify that the defendant’s DNA matched the vaginal swabs taken from the victim and that the odds against this occurring randomly were astronomical. But the foundation testimony in this case was even weaker than that in Raney. Unlike the testifying scientist in Raney, Lambatos did not perform or even observe the critical procedure which was allegedly used to isolate the defendant’s DNA. In fact Lambatos had no knowledge of whether the machine used in the testing was functioning and whether it was accurately calibrated, or anything else about it. Neither did she personally know anything about any of the procedures used in the laboratory where the testing was done. The DNA data identified as the defendant’s which was provided to Lambatos by the Cellmark Laboratory (Cell-mark) was taken from the vaginal swabs of the victim. This sample was sent to Cellmark, an out-of-state laboratory in Maryland. Once it was mailed there, Lambatos knew nothing of how the material was handled or tested. She knew only that she subsequently received test results back from Cellmark. She merely matched the defendant’s DNA as provided to her by Cellmark to the DNA later recovered from the defendant. As the State conceded in oral argument before this court,. Lambatos could not have reached her conclusion without relying on the tests performed by technicians at Cellmark.
Lambatos did not observe the tests done by Cellmark, nor could she state that the tests were done in accordance with established protocols or accurate calibrations. She could only state that as an accredited laboratory, Cellmark was required to meet certain guidelines. She obviously could not testify that these guidelines were followed in this particular case. She also admitted that genetic material other than that of the defendant or the victim had been found in the tested material at Cellmark, although she dismissed this as “background noise.” Like the expert witness in Raney, Lambatos did not testify regarding whether the test upon which her opinion was based had been properly performed, with proper calibrations and safeguards. Again like the witness in Raney, she did testify that the type of procedure used by Cellmark was generally accepted in the scientific community, but this failed to demonstrate that the testing procedure in this particular case was properly performed.
These are not idle concerns. DNA evidence is powerful because it always appears to be based on pure science. It can convict the guilty or free the innocent. The importance of DNA evidence has been highlighted in society at large. Courts have been known to take judicial notice that improperly performed DNA tests have resulted in wrongful convictions. In Brown v. Farwell, 525 F.2d 787, 796-97 (9th Cir. 2008), the district court’s decision granting the defendant’s habeas corpus petition was affirmed because the defendant presented expert testimony establishing that the State’s DNA expert at trial had grossly exaggerated the odds that the defendant was the assailant. In Houston, Texas, the police crime laboratory temporarily shut down its DNA laboratory and faced the prospect of retesting DNA samples in thousands of criminal cases because of a State audit which revealed misinterpreted data, poorly trained workers, shoddy records, and a leaky roof which contaminated evidence. A. Liptak & R. Blumenthal, New Doubt Cast on Crime Testing in Houston Cases, New York Times, August 5, 2004. It was reported that at least one defendant was wrongly convicted of rape and served four years in prison before he was exonerated and released. In addition, in a preliminary review and retesting of 360 DNA cases, experts were unable to confirm the original results in 18 cases. Further, many criminal convictions have been reversed and remanded for new trials because of improper DNA evidence. Annotation, Admissibility of DNA Identification Evidence, 84 A.L.R.4th 313, §10 (1991).
In this case, the record clearly establishes that an insufficient foundation was presented concerning whether proper procedures and protocols were followed in testing by Cellmark, located in Maryland. The majority refers to Lambatos’ generalized testimony concerning the sufficiency of the protocols, testing, and methods of analysis ordinarily followed by Cellmark. The majority also refers to Lambatos’ testimony that Cellmark’s methods were generally accepted in the scientific community. But none of this testimony applied to the testing done by Cellmark in this case. Lambatos had no knowledge of what occurred at Cellmark with respect to the testing in this case. Indeed, there was no evidence that she had any personal knowledge regarding how Cellmark and its staff conducted their work. The cases cited establish that absent a proper foundation, it was error to permit the expert testimony of forensic scientist Lambatos concerning a match between the defendant’s DNA and the DNA found in the samples taken from the victim.
In light of the case law cited, the majority equivocates. It spends a great deal of time in an exhaustive summary of the DNA testimony presented at trial. But the fundamental fact that cannot be avoided is that the State’s expert, Lambatos, had to rely on Cellmark technicians’ testing which allegedly identified the defendant’s DNA in the victim’s sample. As previously noted, in oral argument the State conceded that without the DNA profile produced at Cellmark, Lambatos could not have testified to a match between the defendant’s DNA and that found in the material taken from the victim. Lambatos simply compared that DNA profile to one obtained from the defendant’s blood and found a match.
Faced with case law concerning the necessary foundation for evidence derived from scientific testing, which the majority appears to admit continues to be good law in this state, the majority cites to numerous inapplicable cases. They are all inapplicable for a number of reasons. For example, there was a determination that the defendant had waived the issue of the sufficiency of a foundation for evidence of scientific testing (People v. Sutherland, 223 Ill. 2d 187, 237, 860 N.E.2d 178, 279 (2006)); the defense stipulated to the validity of the testing procedure (People v. Rucker, 346 Ill. App. 3d 873, 892-94, 803 N.E.2d 31, 46-47 (2003)); the expert who performed the testing actually testified in court concerning the validity of that test (People v. Hill, 169 Ill. App. 3d 901, 910-11, 524 N.E.2d 604, 610-11 (1988)). In the case before us there was no forfeiture or waiver, no stipulation, and no testimony by the technicians who performed the critical test.
I also note that there was insufficient chain-of-custody evidence presented by the State concerning the materials tested by Cellmark. The evidence established that materials were sent by Federal Express from the Illinois Crime Lab to Cellmark in Maryland along with samples from 20 other cases. It was received in Maryland on November 29, 2000. The evidence also established that the Crime Lab received test results back from Cellmark by Federal Express on April 3, 2001. But no witness could account for the manner in which this material was kept or treated at Cellmark for the 126 days that it was there. In that period there were many ways in which the materials could have been compromised. Under cross-examination by the defense, forensic scientist Karen Abbinanti, who performed the DNA testing on the defendant’s blood at the Illinois Crime Lab, provided numerous examples of possible sources of contamination. Abbinanti testified that a sample could be contaminated if someone sneezed on it or dripped sweat on it. There could be cross-contamination from other samples. To guard against these possibilities, she said that she used a clean technique. Lab personnel wore lab coats, masks and gloves. Before examining material, they would clean their area with a 10% bleach solution and in between examinations would clean their instruments with the same solution. Prior to performing her testing, Abbinanti also checked the calibration of the instrument she used. The record is absolutely silent as to whether any of these precautions were taken at Cellmark in this case, or whether any contaminating incidents occurred. We do know, according to forensic scientist Lambatos, that the sample she received back from Cellmark also contained genetic material not consistent with that of either the victim or the defendant. Lambatos testified that she did not believe it came from a third person, but was merely “background noise” generated by the sensitive testing. Nonetheless we have genetic material tested by technicians yielding so-called “background noise” yet those technicians did not testify as to their methods, safety procedures or calibration of instruments. We have genetic material that may have been contaminated, and we have the trial court’s refusal to allow the defense to obtain the testimony of the technicians who actually performed the testing at Cellmark.
As cited by the majority, the law is that physical evidence which is susceptible to tampering or contamination requires the State to establish a chain of custody that makes it improbable that such tampering or contamination occurred. People v. Woods, 214 Ill. 2d 455, 466-67, 828 N.E.2d 247, 255 (2005). Not every person who handled the evidence must testify, but the State must establish that reasonable measures were used to protect the evidence from the time it was obtained. Clearly this burden was not met by the State in this case. There is absolutely no testimony or evidence concerning the manner in which the sample was treated or tested during the 126 days that it was under the control of Cellmark. Adhering to proper foundational procedure is critical when DNA evidence is presented. Such evidence is powerfully persuasive. In a case like this, where the identification testimony is weak, special care is necessary to ensure that all aspects of the required foundational process have been followed.
Finally, the majority suggests that it may not have been “feasible” to require the expert who testified, Lambatos, to personally test the instrument relied upon. This presents a false choice and undermines the importance of established law on this issue. The issue is whether the technicians who performed the test were required to testify. This was a case in which a conviction would necessarily result in a sentence of life in prison without the possibility of parole. Under these circumstances, the importance of adhering to the tenets of well settled law cannot be overstated. In this bench trial, I can fathom no legitimate reason for the trial court to refuse to allow the defendant to avail himself of this fundamental procedural safeguard. The court could have postponed the remainder of the trial to allow the defense to subpoena the Cellmark technicians who performed the DNA test. Given what is at stake, slight inconvenience to the State or the trial court should not be the overriding factor. The failure to do this, in my judgment, has resulted in a grievous error requiring reversal and remand for a new trial. In so finding, I must also comment on the State’s effort to muddy the waters by including in its brief copious, irrelevant facts concerning other crimes committed by the defendant. But, the only reason to include those details would have related to an issue regarding sentencing. The only sentencing issue in this case, the validity of a term sentence imposed consecutive to a life sentence, required no detailed description of the defendant’s prior offenses.
For all these reasons, I would reverse and remand for a new trial.