well there the next case united states versus dante lee may please the court seventeen point three septillion sounds like a video game score but it's only him as impressive as the forensic lab producing it and that score spelled game over when judge r care or wrongly excluded evidence tending to discredit the erie county crime labs reliability dooming my client's conviction now what's my prime struggle on this appeal among others articulating clearly for the court in my view the probative value and the critical need for the evidence that the judge precluded so what you have here is a case study and that evidence because it was aired out a full blown evidentiary hearing before trial and what of that evidence show well it showed by admission of the prosecutor below that this lab gets plenty samples to the evidence showed that the manufacturer of these federal easy collect kits the standard d n a collection kit used by the f b i in every federal government law enforcement agency recommends a specific extract extraction protocol called conch robotics and despite receiving roughly one of these samples a year the erie county crime lab shuns that recommended method it simply doesn't use that questions for the jury exactly and we were not permitted by virtue of the exclusion of maria o maria orsino's testimony i should say to properly put that question before the jury the consensus of authority is that these objections that i've raised throughout the first point which is candidly included mainly as background for point two here are matters for the jury's consideration they go to weight not admissibility further the supreme court tells you that d n a evidence is uniquely persuasive and it has a singular tendency risk to confuse and mislead and therefore you need a wide berth in cross examining this material and it's particularly critical in this case judge  absence of internal validation at the lab itself and the government rightly straub counsel predicted it would flaunted the rigorous internal control mechanisms and validation protocol that this novel form of forensic science allegedly and did in fact undergo at the lab economic news that as both a so the labs alleged proficiency and integrity is both a sword and a sheer old while simultaneously denying us the means of circumstantially in french inferentially i should say contesting that by showing no this lab is not necessarily a paragon of scientific virtue or some sort of gold standard and going back to my proffer on this the excluded evidence would have permitted that inference and that jury argument by showing that the lab shunned the recommended d n a extraction protocol for federal easy collect devices that the alternative method that it did use should have worked should have produced a measurable sample mercs the d n a experts who testif trial offered opinions based on a second swab right well we didn't have a d n a expert who testified for reasons known only to trial counsel no i meant the government's experts testified you're arguing that the court abused its discretion not letting cross examination about the first test which was about a first swab will not lot not allowing us to present evidence of that there was no there was no evidence presented about the first swab the government experts who testified at trial analyzed a second swab so my question is why was that in use of discretion for the trial judge to say i don't think what happened with their spector the first swab is relevant to the analyses that were presented at trial it may not have been an abuse of discretion if the ruling or limited or the issue were limited to one of confrontation but we have a fifth and sixth amendment right compulsory process and the right to present a defense and to present our version of the facts and our version of the facts goes to challenging the integrity and the bias and motive of the lab and we were unable to do that because the judge precluded our witness who actually worked for the tortured procedural history recounted in point of this brief where the government couldn't extract a sample from swamp lawn and then shot the application for a new warrant to four different judges i've never seen anything like it it may be unique practice in the western district of new york i'm not was allied on the government and rely on the first at all and basically did it over so one should have been arguably confusing for the jury to hear evidence about the first was when the government wasn't relying on the first law no confusion when you read this record judge it's a seven hundred page record a seven hundred page record the d n a evidence the government build it as the most significant proof a case and the king of it all consume two hundred thirty pages of a seven hundred page record judge and i've read this record because i had to learn this material in the first instance the thing was already so muddled up and confused that any marginal increment of additional confusion could have been handled by a simple limited instruction and the argument at the end of the day is a very simple one they're holding out this lab and its internal validation protocol as the guarant of reliability of this novel and untested scientific method i have a right to say not so fast jury you decide if this lab is all it's cracked up to be or whether we can show you in this very case that it didn't use proper extraction methods that it cut budgetary corners and took short cuts in the name of expediency for itself perhaps at the expense of best forensic practice so think twice think twice before you credit this black box evidence which they're telling you is great evidence because we know because we've this lab tested it seven days from here to sunday don't rely on it at face value and by the way the nature of the black box evidence itself how do you cross examine a machine judge you you don't i need more latitude in the supreme court recognizes that going back to melendez diaz versus massachusetts this is a unique kind of evidence it's uniquely probative it's uniquely persuasive it's the cia c s i effect when you hear a judge a jury hears seventeen point three septillion times more likely that's it it's game over for the case let's be realistic about it so we need the ammunition to be able to put distill it properly he can test they can testify to seventeen point three septillion to some extent on hemmed in by the record that was made or wasn't made below what i'm saying was wrong was how that arrogance the prosecutor mischaracterized that evidence in su by resorting to what the supreme court called in mcdaniel versus brown it's a case from around two thousand and ten something called the prosecutor's fallacy and i submitted the twenty eight j level and a letter with the powell case from the second department and i know that's not binding on this court but when you see the comments that the prosecutor made in that case and exactly identical to what happened here what's crucial i understand with this prosecutor's fallacy in the supreme court explains it in the scientific literature explain it that the seventeen point three septillion figure is what's known as a conditional probability it's no affirmative evidence of guilt and it's no affirmative evidence that the defendant or the the accused select the number of putative contributors to this complex mixture so it compares to remote hypotheses twenty zeroes apart right that it's three unknown individuals or in this case the defendant plus two hundred dollars and it says it's seventeen point three septillion times more likely if you grant the assumption that there's three contributors that it's d plus two versus three on a wrong what he said that wasn't long but laid out  statistical possible out wrong what he said she said actually been wrong what the prosecutors the prosecutor said the d n a the defendant's d n a was found on that gun was on that gun and the science proves the a was on his d n a was on that gun all things that were wrong and that the expert witness herself said were wrong that the supreme court says is wrong and that the second department reversed the monica richards represent united states of america on the subpoena the jury here convicted based on a totality of evidence so i appreciate the counsel's concession that perhaps the argument really goes to the nature and the circumstances regarding that first swab and what happened there but frankly based on this verdict we don't know it's just a guilty or not guilty there were any special iraq authorities so for all we know this jury viewing the evidence in the light and now this court's reviewing the evidence in the light most favorable to the verdict it could have just been based on the circumstances of that encounter this the jury you're all we know jury here any evidence about the first why the jury did not hear evidence about the first but with regard to the encounter i was referring to the police encounter how this how this came to be at all i don't know i understand there's other evidence including what what the police officer saw such but in terms of of the d n a evidence the jury was only present present with analyses relating to the second swap right and then they were also heard the experts and the witnesses statements with regard to the validation accreditation procedures for that second swab and for the swab as it was taken and brought into the lab and what their procedures are at the history of their accreditation validation process with regard to that process was before the jury how do you respond to counsel's argument that in some nation the prosecutor said his d n a was found on the gun that but it was also a fair inference from the evidence that is what we were asking the jury to do list to determine that yes this was his d n a on the gun that was the ultimate question it wasn't some hypothetical could it have been might it have been it was based proof beyond reasonable doubt was this his d n a on the gun so with regard to that there's some fair entrances that were made and maybe some shorthand or a short cut language but at eight to sixty seven in the record that the prosecutor definitely said it the way it should have been said  gun right and and i'm not going to apologize or represent that it was a perfect statement with regard to especially the last statement that was made at the closing in the rebuttal argument but there's also been leeway granted by this court to statements made in rebuttal and then he took a short hand at the end of this argument really doesn't over provide a basis for this court to reverse where the jury heard the evidence from the witness who multiple times was asked and explained what the likelihood ratio is and was asked specifically by her on cross examination so you're not saying that's is an eight to thirty five of the record you're not saying that it's one point seven three times ten to the twenty fifth which is twenty four  more likely that this is done to lee's d n a that is not you're not saying that right so that was that was asked there's a couple points i've highlighted in my brief but eight to thirty five and eight to thirty seven the ones that have got blue sticky notes on that say that this was she was not saying that she was not saying prosecutor short handed to in the in the closing argument so with regard to the nature of the evidence again here i really strongly feel that we don't know maybe the jury did agree with mr lee that this d n a evidence wasn't worth its consideration maybe it was too technical maybe it was too difficult maybe they just didn't like it we have no idea but we do know that there were other the other evidence on which this verdict was based and that the circumstances of that encounter made it proof beyond a reasonable doubt that this gentleman was the person who'd handled that gun most recently he was in the field he ran away from the officers he'd been observed by the officers making a motion indicative of possession of a weapon he took off from the scene he argued argued in the closing argument that he would have done this just for the bag of marijuana that was found in a spot that he was a convicted felon and shouldn't have had a gun and that's why he ran so with regard to the second so i think that was a second point in the brief if there's any further questions on that addressed on the brief and then ineffective assistance of counsel claim here i do believe as one that's of rare case that could be decided on the record presented here these trial counsel advocated very strongly against that warrant that permitted the second swab and there were no false statements in the warrant application which would have provided a basis for frank's hearing no further questions ball just very quickly you never know because your little trials result in general verdicts what the jury relied on that's not the standard we do investigative work and we look for clues on the primary clue is what the prosecutor stresses in his closing argument in this case the prosecutor stressed that the likelihood ratio itself was proof beyond a reasonable doubt and we wouldn't need the likelihood ratio or the d n a if the officers had actually seen lee possessed the gun or throw it out the window and he called that the most significant evidence in the case and he called it the king of the case so we know what the government asked the jury to rely on of course we can't crawl inside their heads and find out what they relied on but when you have a seven hundred page record in two hundred thirty pages of it are devoted to d n a and the prosecutor touts this as the king of the case and says it's proof beyond a reasonable doubt by itself and we wouldn't need it if the cops had actually seen anything you can pretty well sort of suppose what the jury relied on now that's one point one point two if the court doesn't accept the premise articulated by the supreme court that d n a is special it's  more powerful and probative than anything that's come before it i lose this case if we go with that premise and what the supreme court has cautioned that because of its unique probity and its unique potential for confusion and overstatement prosecutors have a heightened duty to print sent it with the greatest precision and care that did not happen here the opposite of that happened not for bad reason it just happened it just happened in summation he said the science shows that the defendant's d n a was on that gun wrong untrue he said the likelihood ratio itself is proof beyond a reasonable doubt so it was the pillar of his case and he said twice that the defendant's d n a was found and was on the gun so that's it if there's a heightened duty to present this stuff with the utmost care and precision that didn't happen here it was a short trial the evidence was very equivocal and thin in the absence of the d n a evidence the institutional cost of a reversal of this glorified state gun case not the greatest institutional cost that that this court has ever seen he's entitled to be able to challenge that evidence properly and have it presented to the jury with with  great regular and great great scruple and great care and for those reasons i asked the court to reverse thank you