DNA and the law

[Anna was Franziska]

(introduction by a lawyer who posted it on another board)

....they (Anderson supporters) make stuff up to
support their case, without addressing the facts...
I for one am truly sick and tired of them saying
that this scientific analysis is "faulty" "unreliable"
and "inadmissable in courts" when it is WITHOUT DOUBT not the case!

In fact, one of the scientists who testified in this case, Dr. Terry
Melton, who determined by her mtdna research that AA was NOT GD
Anastasia is expressly found to be a reliable and credible witness
here, her work in the AA case is found to be STILL valid and reliable,
and this Court legally finds that her research is STILL reliable,
credible and admissable. I specifically wish to point out the
numerous times where each scientist testified UNDER OATH that they
were unaware of any scientific peer review studies which disagreed
with the accuracy and vailidity of their mtdna analyses and
methodology, as well as the numerous jurisditions which have found
this mtdna reseach admissible in evidence. This decision is from
September 2000 and has NOT been overturned:

PEOPLE v. KLINGER
713 N.Y.S.2d 823
N.Y.Co.Ct., 2000
Sept. 5, 2000
Judge Brown
PEOPLE v. MICHAEL KLINGER and RAYMOND KLINGER QDS:76703137—The
following constitutes the opinion, decision and order of the court.
***
By previous order of the Honorable Paul E. Kowtna, this court
conducted a Frye hearing on June 6, 2000 and June 13, 2000, to
determine the admissibility of mitochondrial DNA evidence at the trial
of the above-captioned Indictment.
At the hearing, the court heard testimony from two witnesses, Bruce
Budowle, Ph.D., a Senior Scientist with the Federal Bureau of
Investigation, and Terry Melton, PhD., President of Mitotyping
Technologies, LLC.
The court finds that Dr, Budowle and Dr. Melton were credible
witnesses.
The court makes the following conclusions of law:
The Court of Appeals has held that "[t]he long recognized rule of Frye
v. United States, 293 F. 1013, is that expert testimony based on
scientific principles or procedures is admissible but only after a
principle or procedure has 'gained general acceptance' in its
specified
field". In Frye (supra at 1014) the court stated:
"Just when a scientific principle or discovery crosses the line
between the
experimental and demonstrable stages is difficult to define. Somewhere
in
this twilight zone the evidential force of the principle must be
recognized,
and while courts will go a long way in admitting expert testimony
deduced
from a well-recognized scientific principle or discovery, the thing
from
which the deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it belongs"
(emphasis supplied)." (People v. Wesley, 83 NY2d 417).
"This Court has noted that the particular procedure need not be
'unanimously indorsed' by the scientific community but must be
'generally acceptable as reliable' (see People v. Middleton, 54 NY2d
42, 49). Thus the issue here concerns the acceptance by the relevant
scientific community of the reliability of DNA evidence." (People v.
Wesley, supra at 423).
"Once Frye has been satisfied, the question is 'whether the accepted
techniques were employed by the experts in this case" (People v.
Wesley, supra, citing People v. Middleton, 54 NY2d at 50). The focus
moves from the general reliability of the procedures followed to
generate the evidence proffered and whether they establish a
foundation for the reception of the evidence at trial. The trial court
determines, as a preliminary matter of law, whether an adequate
foundation for the admissibility of this particular evidence has been
established." (People v. Wesley, supra at 429).
The first witness was Dr. Bruce Budowle. Dr. Budowle has been employed
by the FBI for 17 years and has been a Senior Scientist for the past
one and a half to two years. He has a Ph.D. in genetics and a
Bachelor's Degree in biology, Dr. Budowle is a member of numerous
professional organizations including the American Academy of Forensic
Sciences and the International Society of Forensic Genetics. He has
published approximately 200-250 articles or materials relating to DNA
analysis, nine of those articles regarding mitochondrial DNA
(hereinafter "mtDNA"), The majority of these articles were subject to
peer review. Dr. Budowle has presented his research and findings to
the
International Symposium of Human Identification on nine separate
occasions. He explained that a symposium is a way to bring the
scientific community together so theycan exchange ideas. He also
serves on numerous journal and editorial boards both in this country
and abroad. Dr. Budowle has received numerous honors and awards
including the Forensic Scientist of the Year Award. He teaches a
course on mtDNA typing for the FBI and for Forensic Institute, which
is for national and international students. Dr. Budowle
has been qualified on numerous occasions as an expert witness in
molecular biology, genetics, population genetics, statistics and
forensic science in state, local and federal courts. He stated that he
has testified in more than half of the states in this country. Dr,
Budowle has also been qualified as an expert on mtDNA in New York,
Louisiana, Pennsylvania, Maryland and California.
As early as 1989, Dr. Budowle co-wrote a chapter of a book describing
mtDNA as a possible genetic tool. In October of 1993, he co-wrote one
of the first guidelines for the use of mtDNA sequencing in forensic
science. In 1995, he co-wrote a peer review journal
describing the procedure that was developed at the FBI for the
extraction, amplification and sequencing of mtDNA from human hair
shafts, Also, in 1995, a peer review article was co-written by him on
the validation of the aforesaid procedures for their application to
case work. An article was also co-written by Dr. Budowle, which was
published in 1997, that described a phenomenon observed in mtDNA
called heteroplasmy. Dr. Budowle also co-wrote a peer review article
for publication where a mtDNA study was done with crab
lice. He determined that this study was a valuable way of looking at
the DNA environment to determine whether its analysis produces a
reliable result. In 1999, he co-wrote a peer review journal article
describing some of the population data from a portion of the data
bases that demonstrates, by inference, the rarity of the mtDNA type
among unrelated individuals. Finally, Dr. Budowle is on the DNA
Commission of the International Society for Forensic Genetics. He was
one of 13 members of the DNA Commission who published an
editorial which contained guidelines for typing mtDNA.
***
MtDNA is much heartier than nuclear DNA. For example, old bones and
teeth that have been exposed to the environment may still have
sufficient quantity for mtDNA typing where nuclear DNA typing would
fail to give a result, There are, however, differences between the two
types of DNA. First, in nuclear DNA, you inherit half from your mother
and half from your father. In mtDNA, you inherit all of it from
your mother. Second, instead of being billions of letters long, the
mtDNA strand is 16,569 letters long. Further, mtDNA is circular rather
than linear. Dr. Budowle opined that the circular strands may actually
protect the mtDNA from being degraded.
***
the counting method is used to predict how common a particular
profile is in mtDNA. Next, the technician can go further by
calculating a confidence level based upon a statistical formula
established early in the twentieth century. The lab, in essence, would
calculate a confidence interval around the estimated frequency based
on the size of the database. This formula is based upon bell-shaped
distribution theories that have been in existence since the
mid-eighteenth century. A confidence level, based upon a statistical
analysis, creates an upper bound to the benefit of the accused, and
then provides that they have confidence that the frequency is no
higher than this amount, Dr. Budowle is not aware of any peer review article
that disagrees with this method of calculation.

MtDNA research began at the FBI in 1992 and testing commenced in 1996.
Numerous procedures and protocols were developed that were subject to
peer review. Moreover, validation studies for mtDNA have been
published and subject to peer review.

Apparently, there have been no peer review articles that disagree with
the FBI validation ...

[Anna was Franziska]

More on the DNA testing done and its realibility:

Dr. Terry Melton

Dr. Terry Melton has been working with mtDNA since 1991. She has a
Ph.D. from Penn State University in genetics. She has performed
hundreds of DNA analyses and thousands of PCR amplifications. She
testified that her lab exclusively performs mtDNA analysis. One
high profile analysis that she was involved with was the claim of Anna
Anderson that she was the remaining living child of the Romanov
family. By the use of mtDNA, it was determined that she was not the
Grand Duchess Anastasia.

The Court cited the AA case here as support for Dr. Melton's
credentials as an expert in mtDNA analysis. Please note that there is
no reference to any question of the accuracy of the results of the
test. In fact, the accuracy of the AA test is overtly IMPLIED because
the Court cites it as part of the basis for believing her expertise in
mtDNA work and IN FACT RELIES ON THIS CASE to demonstrate her
expertise.

In plain English, what this says is that NO SCIENTISTS have published
ANYTHING to date which has questioned the accuracy of her work,
INCLUDING the mtDNA analysis of AA, excluding her as GD Anastasia. I
have seen lots of claims made here of the "innacuracy" of the AA mtDNA
testing, but for some reason, NO ONE can actually
cite any published scientific reference to back up their claims.

Dr. Melton testified that, in her opinion, the underlying principles
of mtDNA, the principles of mtDNA analysis and the statistical methods
as applied to mtDNA are generally accepted as reliable in the
scientific community.

In plain English again, mtDNA analysis, IS regarded as reliable and
accepted by the scientific community.

Here it is, folks, accepted as a matter of law by
the Supreme Court of New York:

The court finds that the credible evidence adduced at the hearing
established that mtDTA analysis and interpretations are generally
accepted as reliable in the scientific community and that the
procedures followed in this case establish a foundation for admission
of such evidence. The evidence has sufficiently established that the
analyses and interpretations of mtDNA has gained general acceptance in
the community of scientists that work in this field. The existence of
contamination and heteroplasmy do not affect the reliability of the
scientific procedure and these issues, which are subj ect to
cross-examination at the time of trial, do not invalidate the
procedures of mtDNA testing.

Although both Dr. Budowle and Dr. Melton testified that mtDNA can not
be the unique identifier that nuclear DNA can achieve, this conclusion,
however, does not invalidate the accuracy of the procedure and whether
it is acceptable in the relevant scientific community.

This court finds that many of the procedures used in analyzing mtDNA
are the same as those used in analyzing nuclear DNA. Further, the
statistical methods used by the technician in creating the upper
bounds of the confidence interval are basic statistical methods that
have been found generally accepted in the relevant scientific
community.

Moreover, mtDNA procedures have been subject to peer review and Dr.
Budowle testified that he knew of no peer review articles that state
that the aforesaid process and statistical methods were not
scientifically reliable. In addition, Dr. Melton testified that the
whole process has been subject to peer review and that she is unaware
of any peer review articles in disagreement with the methods used by
her lab with respect to analysis, interpretation and use of the
statistical formulas.

Once again, Dr. Melton said that NO SCIENTIST has ever questioned in
writing the accuracy of her results or methods in any of her work,
which expressly includes her work EXCLUDING AA as Anastasia. So if the
AA mtDNA analysis is so flawed and unreliable, WHY havent any
scientists stated so in writing??

"She (Dr. Melton) testified that her lab exclusively performs mtDNA
analysis. One high profile analysis that she was involved with was the
claim of Anna Anderson that she was the remaining living child of the
Romanov family. By the use of mtDNA, it was determined that she was
NOT (my emphasis here) the Grand Duchess Anastasia. ...

Dr. Melton testified that she is unaware of any peer review articles
in disagreement with the method used by her lab with respect to the
analysis and interpretation of mtDNA. She testified that there is no
process for mtDNA analysis that is not generally accepted as a valid
scientific procedure. The whole process has been subject to peer
review. Further, the statistical formula for mtDNA is generally
accepted by the scientific community. Dr. Melton testified that there
were no peer review articles stating that this statistical formula or
method was not a reliable interpretation of the mtDNA database. She
also testified that the counting method, the confidence interval
approach and the likelihood calculation are each equally valid."

While mtDNA analysis can not necessarily prove who a single individual
may be, (it cannot go beyond 99.9%, which is the probability AA is FS)
it CAN prove who they can NOT be......reliably so by
excluding them from the possibility of blood relation in the maternal
line. There is NO QUESTION that Anna Anderson was NOT Grand
Duchess Anastasia Nicholaiovna because her mtDNA was EXCLUDED from
relationship thru the maternal line. The fundemantal issue here
remains that mtDNA analysis has proved reliably that AA could not have
been GD Anastasia.

[Anna was Franziska]

Another example:

Sixth Circuit Court Appellate Decision
A Mitotyping case, U.S. v. Beverly, was recently reviewed by the Sixth Circuit, and the science of mitochondrial DNA testing was upheld. This is one of the first federal appellate decisions concerning mitochondrial DNA.

[ChatNoir]

My question is: Would the court accept as proof DNA from a sample "said to be from Anna Anderson?"

[Anna was Franziska]

In ANY case, someone could hypothetically claim that their incriminating sample was tampered with, rigged, etc. but proving it would be something else. The intestine at the hospital was stored in two different places, under her name. Therefore, we have no reason to believe it's not hers unless someone can prove it's not. Therefore, in a court case, the burden of proof would be on those who doubt the sample.

[ChatNoir]

Originally Posted by Anna was Franziska

In ANY case, someone could hypothetically claim that their incriminating sample was tampered with, rigged, etc. but proving it would be something else. The intestine at the hospital was stored in two different places, under her name.

And still not found for almost three months.

Therefore, we have no reason to believe it's not hers unless someone can prove it's not. Therefore, in a court case, the burden of proof would be on those who doubt the sample.

Or on those who say it's the real thing.

[Mermaid1962]

Who is the little girl in the picture, the Grand Duchess or Franziska? Thank you for posting this information.

Originally Posted by Anna was Franziska

(introduction by a lawyer who posted it on another board)

MtDNA research began at the FBI in 1992 and testing commenced in 1996.
Numerous procedures and protocols were developed that were subject to
peer review. Moreover, validation studies for mtDNA have been
published and subject to peer review.

Apparently, there have been no peer review articles that disagree with
the FBI validation ...

[Anna was Franziska]

Originally Posted by Mermaid1962

Who is the little girl in the picture, the Grand Duchess or Franziska? Thank you for posting this information.

It's Grand Duchess Anastasia as a child.

And you're welcome, glad I could help.

[Anna was Franziska]

Originally Posted by ChatNoir

And still not found for almost three months.

The reason the hospital didn't find it right away was because the person originally asked for the sample under "Anna Anderson" but the sample was filed under the name "Anastasia Manahan"
(source: Klier and Mingay, "Quest for Anastasia")

[ChatNoir]

Originally Posted by Anna was Franziska

The reason the hospital didn't find it right away was because the person originally asked for the sample under "Anna Anderson" but the sample was filed under the name "Anastasia Manahan"
(source: Klier and Mingay, "Quest for Anastasia")

And if you read your source, you will see that they looked under both Anderson and Manahan.

[Anna was Franziska]

'

Originally Posted by ChatNoir

And if you read your source, you will see that they looked under both Anderson and Manahan.

Yes that is in my source. But they looked under Mrs. JACK Manahan, not Anastasia. His real name is not Jack but John, so there was officially no "Mrs. Jack Manahan." When they finally searched for ANASTASIA MANAHAN, the samples were there, where they had been all along.


And no, it may not have come up by last name. Example, just recently I was doing a search for my niece, who's in college out of town, on some of the networking sites. I entered her name and it never came up, but my daughter told me she was going by the name "Sadie" instead of her given name "Sarah" on one, and the other was under her boyfriend's name. So it usually does have to be an exact match, especially if using computer searches. It's not going to say 'no we don't have Sarah ---- but we have a Sadie ----' it just said 'no matching results, sorry we can't find Sarah --- )

Also note that the AA intestines and other samples at Martha Jefferson Hospital are stored by number, with a corresponding name in another file, making it even far less likely any switcher could have had access to all those records and snuck in and swapped them out- also, they were stored in two different places, and the likelihood of BOTH being even 'accidently' misplaced with one matching the FS profile is mathmatically impossible.

Much of the unfounded speculation on switches and/or incompetance has been quite insulting to the staff of Martha Jefferson Hospital, just as it has been to the scientists over alleging 'shady' results.

Read Massie's "Final Chapter" for much more on the testing and legal issues over the intestines. It's about half the book, too much to post here, but here's the explanation of the person in charge over the handling of the samples:

This is the explaination of Penny Jenkins, who was responsible for Martha Jefferson Hospital's medical records, including blood and tissue samples. When asked of the possibility of 'substitution' of the tissue at the hospital, here was her reply:

"We have two separate backups. In 1979 when Dr. Shrum did surgery on Mrs. Manahan, we took slides of the tissue, in addition to preserving in paraffin the larger blocks of the excised tissue. Taking slides when doing surgery is routine, you take it, you look at it, and say, there is cancer, or it's not cancer, or it's an infection or whatever. We preserve these slides in one place and the paraffin wax in a totally different place."Furthermore, when we moved the tissue from storage back to the hospital in early 1993, Dr, Thomas Dudley, the assistant pathologist, cut some new slides from one of the blocks. We compared these new slides cut in 1993 with those slides cut in 1979 and they were identical. If someone had swapped them in storage during the last couple of years, they would not have matched. And the chance that anybody was able to get to both locations and switch both slides without access to specimen numbers is impossible."
(source: Massie, "The Romanovs: The Final Chapter")

[Elspeth]

Originally Posted by ChatNoir

My question is: Would the court accept as proof DNA from a sample "said to be from Anna Anderson?"

Not if that was the whole story, no. But as you're very well aware, it's nowhere near the whole story.

[AGRBear]

Originally Posted by Anna was Franziska

(introduction by a lawyer who posted it on another board)

....they (Anderson supporters) make stuff up to
support their case, without addressing the facts...
I for one am truly sick and tired of them saying
that this scientific analysis is "faulty" "unreliable"
and[COLOR=darkblue] "inadmissable in courts" when it is WITHOUT DOUBT not the case! .....
[/B]

It is not acceptable in court if the chain of custody was broken, which I believe it might have been.

In a real court of law here in the USA, if it is proven that the chain of custody can not be proven then everything which surrounds the samples of the intestine will not be admitted into evidence during the case. So, it would not matter if the test were correct or incorrect, because the judge wouldn't allow it to go into the court room. If a lawyer can show that the chain of custody was not broken, the judge will allow the DNA/mtDNA. If, as you say, the DNA/mtDNA would be admitted as evidence then the information surrounding the intestine sample can be admitted, then a lawyer would have to convince 12 jury members, and, one of them might be me, after I've heard the lawyer who has convince me that the chain of custody was broken. So, now, it's your turn to give me proof that the chain of custody was never broken because such a feat was impossible from 1979 to 1991. And that evidence would be....?


AGRBear

[COUNTESS]

Peter Kurth supplied a hair sample. They used that, too.

[Elspeth]

While I can see that this might be a major consideration if you're dealing with one sample, in this case you're dealing with two of them. They came from quite different sources, and they were analysed in different labs. They gave the same result.

If you're going to invoke the chain-of-custody test here, you've got the three alternatives of collusion by the scientists, tampering with two different samples by some third party, or massive coincidence. If a court of law doesn't take that into account, something is badly wrong with the legal process. The issue then becomes that of whether the three above alternatives are really more likely than bona fide results.

[Anna was Franziska]

Originally Posted by AGRBear

So, now, it's your turn to give me proof that the chain of custody was never broken because such a feat was impossible from 1979 to 1991. And that evidence would be....?


AGRBear

No, bear, the burden of proof is on YOU to prove it was broken. It was in two different places, both with her name and a corresponding number in records. If either had been tampered with or misplaced, they wouldn't have matched. The odds that both would be accidently transposed, and with another piece of identical intestine, out of the many yards in each person, must be mathmatically impossible. Since it was carefully stored and labeled, and both halves matched, there is no evidence of any problems. If you have some by all means tell us! Also please tell us why would you even bother, if you don't believe in AA?

Another thing to consider is that during those years it was stored, no one ever heard of DNA tests so why would they switch them just in case some were invented? This is no journey, bear, it's a fantasy.

[AGRBear]

Originally Posted by Elspeth

While I can see that this might be a major consideration if you're dealing with one sample, in this case you're dealing with two of them. They came from quite different sources, and they were analysed in different labs. They gave the same result.

If you're going to invoke the chain-of-custody test here, you've got the three alternatives of collusion by the scientists, tampering with two different samples by some third party, or massive coincidence. If a court of law doesn't take that into account, something is badly wrong with the legal process. The issue then becomes that of whether the three above alternatives are really more likely than bona fide results.

First, I need to know what you're referring to: "you're dealing with two of them". Two of what?

I'm talking about the chain of custody for the sample of the intestines which was removed from AA in 1979 to 1991 which is the time period before the court ruled on the sample being tested by Gill and King.

AGRBear

[AGRBear]

Originally Posted by Anna was Franziska

No, bear, the burden of proof is on YOU to prove it was broken. It was in two different places, both with her name and a corresponding number in records. If either had been tampered with or misplaced, they wouldn't have matched. The odds that both would be accidently transposed, and with another piece of identical intestine, out of the many yards in each person, must be mathmatically impossible. Since it was carefully stored and labeled, and both halves matched, there is no evidence of any problems. If you have some by all means tell us! Also please tell us why would you even bother, if you don't believe in AA?

Another thing to consider is that during those years it was stored, no one ever heard of DNA tests so why would they switch them just in case some were invented? This is no journey, bear, it's a fantasy.

If I am sitting on the jury, I don't have to prove anything. All I can do is make a decision on is what is presented to me in court.

The one lawyer has convinced me that the chain of custody can not be proven from 1979 to 1991. During those years the doctor in charge had died. The hospital had changed into a teaching hospital and renovations had occurred twice, the second was occurring when the requests in 1991 were being made and the sample could not be found. Then up pops not just one sample but two.... Where did the second come from? Who divided the original sample and when? This was a teaching hosptial. How many students touched these samples between 1979 and 1991? Where were they found?

The lawyer, whom AWF would have hired, is, now, telling me what he/she believes the chain of custody was not broken. Can your lawyer explain to me why there were two samples made out of the one? Who did it? Where was the samples stored? Was there security to protect these samples? From what the first attorney said, the samples weren't secure until there was sudden interest in the samples in 1991 and the court became involved.

Why do I ask these questions when I don't believe AA was GD Anastasia? Because this interests me and I'd like to know the facts without people telling me to stop asking questions when no one cares. People do care.

When did DNA first come to attention of the public which suddenly caused more than one person to contact the hospital to inquire about AA's intestine sample in 1991?

AGRBear

[AGRBear]

This is what WAF's lawyer might have said.

Originally Posted by Anna was Franziska

... [ in part] ....

Read Massie's "Final Chapter" for much more on the testing and legal issues over the intestines. It's about half the book, too much to post here, but here's the explanation of the person in charge over the handling of the samples:

This is the explaination of Penny Jenkins, who was responsible for Martha Jefferson Hospital's medical records, including blood and tissue samples. When asked of the possibility of 'substitution' of the tissue at the hospital, here was her reply:

"We have two separate backups. In 1979 when Dr. Shrum did surgery on Mrs. Manahan, we took slides of the tissue, in addition to preserving in paraffin the larger blocks of the excised tissue. Taking slides when doing surgery is routine, you take it, you look at it, and say, there is cancer, or it's not cancer, or it's an infection or whatever. We preserve these slides in one place and the paraffin wax in a totally different place."Furthermore, when we moved the tissue from storage back to the hospital in early 1993, Dr, Thomas Dudley, the assistant pathologist, cut some new slides from one of the blocks. We compared these new slides cut in 1993 with those slides cut in 1979 and they were identical. If someone had swapped them in storage during the last couple of years, they would not have matched. And the chance that anybody was able to get to both locations and switch both slides without access to specimen numbers is impossible."
(source: Massie, "The Romanovs: The Final Chapter")

In cross examination, I believe the other lawyer would have asked:

"Why did Dr.Dudley touch these slides?"

"Who else touched these slides from 1979 to 1993?"

AGRBear

PS

I stand corrected, the year was 1993 not 1991. So my posts should read 1979 to 1993. My apologies. 1991 was then the bones in the mass grave was found.

[Elspeth]

Originally Posted by AGRBear

First, I need to know what you're referring to: "you're dealing with two of them". Two of what?

Two samples. The intestine and the hair.

I'm talking about the chain of custody for the sample of the intestines which was removed from AA in 1979 to 1991 which is the time period before the court ruled on the sample being tested by Gill and King.

AGRBear

The intestine sample was stored at the hospital for years. Presumably any sample stored at a hospital could be tampered with during that time since it wouldn't have been guarded by lawyers and their security experts for that entire time.

However, chains of custody don't exist in isolation. The point at issue is whether the sample is what it's claimed to be, not whether someone had their eyes on it for the entire time span of its existence, since it has a finite chance of being genuine even if it wasn't being watched continuously. Anyone casting doubt on the identity of the intestine sample is going to have to explain why, if the sample had been switched, the new sample gave an mtDNA match with the hair sample that didn't go near the hospital between its discovery and its analysis, which took place in a different lab from the one where the intestine sample was analysed.