matters and we can't know the exact weight that the jury placed to get d n a evidence but we do know that in this country there is a c s i effect also so i worry a little bit about that too is that it seems to me that you never really have an engaged in limited amount as to harmless error but i think if they were having any doubts at all about this jailhouse snitch who has some motive to give this information he gets a reduced sentence we have a credibility issue with the wife she said one thing to the police one time and then flip and then we have a reluctant confession so if there was any doubt in the jury's mind i think the d n a evidence was the icing on the cake and what made it so harmful i think is that the government kept pounding the fact that it was routine this is routine d n a analysis we do it thousands of times a year they do it every single day there was nothing out of the ordinary that took this sample to a different level we interpret it the same way we do every other performed by trinity and fusion kit was inadequate because the study didn't include testing involving mixtures of samples from three or more donors the magistrate concluded that same principles outlined in the validated studies from mixtures applied whether the mixture contained d n a from two or three or more donors that's what we have from experts who say quite the opposite thing about that but that doesn't mean that that renders one side's expert in admissible it does when it's only be experts  court took the experts word for it that she could extrapolate data from two persons samples there was no scientific journals there were no references line there was nothing within the scientific community that that court could look at and say yes she's telling me you actually can extrapolate data and here's the scientific authority that also supports her being able to do it this is a case where a giant a genuine scientists covers an unscientific and the judge simply took her word for it he relied on her own manual that she submitted that she did she wrote in her lab with no reference to any guidelines or anything that would vary in manual was approved and to assume a single source or a double source sample that's not assuming a complex mixture i don't know have no i'm talking about a complex sweet damn guidelines that are in their manual do not adequately can't i think you can your honor because part of of science we're not talking about the retroactive application of the statute we're talking about science and we look at what is presently no and the whole concept of peer review  in failing to credit information never presented to the court in the first because it didn't exist it does exist it did exist at the time the concept of validation has always in it if you're going to make a call in a knows that if it's going to perform certain testing in casework it needs to back it up with sound scientific mission such as testing similar samples to see how they behave in your particular lab so you know whether your analysts are making a legal calls one hundred percent of the time fifty percent of the time whatever your rate of error that's not a new concept yes the two thousand and seventeen guidelines expounded on mixture turpitude that's only because that became  practice they weren't really doing this kind of mixture to her petition back in two thousand and and that's what butler and all the other authoritative sources say so while the two thousand and seventeen guidelines are intended to apply retroactively there is a  little section in there that says as long as the prior testing was based on validation or good grounds we don't have that in this case a problem that you have is the standard is very high the district courts got a whole bunch of discretion and we say and i quote we said the deference that is the hallmark of abuse of discretion requires that this court not reverse never entry decision or they disregard unless the ruling is manifestly erroneous we're talking we're talking very specifically about expert testimony going to the question of foundational reliability  manifestly erroneous it just struck me reading the materials here can perhaps i've got it wrong but it struck me that you really had to do lng experts who looked at the same operative area in a somewhat different way but there was enough to allow both in and it was a jury question to where the accredited one of the other where am i wrong in that i don't think it's a question of two experts disagreeing in other words one says a threshold here another says a threshold here we're talking about a fundamental difference in how these mixtures are interpreted if you look at the morgan case the second circuit case while it actually admitted the evidence it does provide a benchmark as to what the indy show reliability would be we're talking about a lab that is the leading lab in the kind arming this kind of testing it has one hundred sixty lab analysts with extensive training experience it had eight hundred validations does that it did on low level mixed they had a hundred percent accuracy rate in making those illegal calls they had peer review their all of their protocols all their procedure submitted for peer review in a proof they're like the gold and then we look at trinity oh lab that has one analysts with no testing from before to show you yes i've done this type of testing for i've done three person samples i could make a little calls one hundred ninety whatever the rate of error was she wouldn't be able to have that we have no mathematical computations simply looks at heights on a graph and says well those two are higher they must belong to the and she could tell that all of them except one would very very minor and you can look at the profile yourself as i did and you can see every time there of the two person validation still does apply because there is little or no sharing there is sharing and the peaks that you see could be the one remember we have no balance to the so if they are of those there so little they don't even show up we don't know that your honor and the other we don't show on a peak we don't know what how many contributors there are we don't know whether dropout has occurred that's also the problem is that they drop out when they are so small that dropping out because they're so small they're dropping out because the quantity of d n a that's being tested is so low there's a threshold a bolo which you have she did increase c r fuz which means that multiple contributors are raising the peak above the stochastic so if there's five contributors contribute to that peak any one of them could be falling below the threshold you know at that point you're in the danger in that data and that should be there is not there that data that is dropping out of the sample that people are supposed to be in the sample that are in that should have been a red flag to her to not just go ahead and test about the government having the burden to prove harmlessness beyond a reasonable doubt no this isn't a constitutional right so the burden is for harmless error more likely than not ok so that's the profoundly alters frantic landscape that can't be right you can you can see why that would create enormous problem there may be a change that's so profound that and you have missed christianson reserved two minutes thank you in the closing statements to the jury the government told the jury that the jailhouse snitch wasn't the bombshell witness and that if it was mr barton's gone then his d would be on the gun and his d n a was on the gun and the most conservative chance that it was anybody else other than mr barton was one in forty one million that takes that is a huge in the eyes of  a and it was based on nothing but the experts own word for it that could correctly interpret complex measures at that point which was the cutting edge of d n a technology but this lab in florida with two thousand and ten guidelines that don't appropriately dressed these kind of mixture she's looking at a sample it's low level it's the lower than her optimal level even for a single source sample it's a mixture not of two people three people four people five people and then when she ran it data was falling below her already established threshold at every single location in the sample if that's not something that would have given her pause i don't know what would and we're just saying it has to be done reliably if she had any of the india of reliability that the morgan lab had we wouldn't be here today if she had shown us through validation studies that she had done this before could correctly make these calls that she was relying on guidelines that we now know are generally accepted we were asking for a foundation and we never got it