Affidavits of Karl Reich

The **affidavits of Dr. Karl Reich** are affidavits signed by Karl Reich, a DNA analyst and professional molecular biologist who has his own independant DNA lab called Independant Forensics. Reich signed a total of two affidavits for Zellner, both about DNA analysis performed on evidence such as the Toyota RAV4 valet key and the hood latch swab. The first affidavit was signed on 6 June 2017, shortly before Zellner filed her *Motion for Post-conviction Relief*. The second motion was signed in October 2017, after the Judge had denied the motion.

## Affidavit of Karl Reich

### Pages

13 (without exhibits)
22 (with exhibits)

### Date signed

6 June 2017

**I, Dr. Karl Reich, under oath and under the penalty of perjury, state that:**

1. I am a DNA analyst and professional molecular biologist. I have a doctorate in Molecular Biology and am the Chief Scientific Officer of Independent Forensics of Illinois, 500 Waters Edge, Suite 210, Lombard, IL 60148. My curriculum vitae is attached and incorporated as **Exhibit A** to this affidavit.
2. Independent Forensics Laboratory adheres to the FBI's Quality Assurance Standards for molecular biology, human genetics and forensic DNA Testing Laboratories. Independent Forensics is accredited by ANSI-ASQ National Accreditation Board (ANAB, FQS-1, 1SO/IEC 17025), the American Association of Blood Banlcs (AABB), and the New York State Department of Health (NY-DOH), for genetic identity and forensic DNA testing. Independent Forensics is the only such laboratory in Illinois.
3. I have been retained by the defense to provide a professional, scientific and critical perspective on: a) the possible biological source of the DNA that generated a DNA profile from item M0S-2467 #ID, alleged swabbing of hood latch; and b) forensic DNA results obtained from the item identified as M0S-2467 #ID, alleged swabbing of hood latch. Here forensic DNA results include both the quantity of DNA that was recovered from this item and the DNA profile obtained from the sample marked as M05-2467 #ID. I have also analyzed the amount of DNA on an exemplar key for purposes of comparison to M0S-2467 #C, the Toyota key.
4. I am intimately and professionally familiar with the scientific literature, research efforts, commercial technologies and 'home brew' methods used to identify the biological source of DNA that is obtained from forensic evidence. These tests, screens, methods and procedures are sometimes referred to as 'Biology' or 'Serology' or source attribution (the tenn serology derives from when forensic analysis relied on cell surface antigens tested with antisera, hence the term serology). In simple terms: what did the DNA come from? Dr. Reich to add a sentence regarding expertise in DNA profiling.
5. My familiarity with the analysis and interpretation of DNA profiles derives from personally testing DNA samples, from supervising a fully accredited forensic DNA laboratory that processes a wide variety of sample types, from the professional review of hundreds of forensic DNA cases from both governmental and private DNA laboratories and from the development of new protocols, reagents and kits that enhance the sensitivity and forensic DNA analysis. Hundreds of laboratories use these tests every day.

**I. SOURCE ATTRIBUTION/BODY FLUID IDENTIFICATION**

6. There are four forensic body fluids for which reliable tests exist: blood, semen, saliva, and urine and most recently, feces. It is of course understood that humans make a variety of other body fluids (here fluid is used in the broad sense of biological substances shed or deposited or produced by humans); a partial list might include tears, sweat, ear wax, vomitus, mucus (which varies with epithelial origin), etc. There are no tests for these, or other biological fluids/human products and thus these other fluids are invisible to forensic analysis. There are only tests for the listed four (now five).
7. As for all body fluid identification, forensic detection of blood, semen saliva or urine (or feces) is based on detecting a biological marker associated with the body fluid in question - find or identify the bio-marker and the analyst will assume the body fluid is present. This is a reasonable and accepted approach to forensic body fluid identification. Common examples (but not an exhaustive list) might include using hemoglobin (or components of hemoglobin) for the identification of blood, α-amylase for the identification of saliva, acid phosphatase or PSA/p30 or semenogelin for the identification of seminal fluid and urea or Tamm-Horsfall for the identification of urine.
8. The distinction between a presumptive test or screen and a confirmatory test should be noted. A presumptive test does not have the specificity required to unambiguously identify the body fluid; this may be due to a bio-marker that is present in two ( or more) body fluids (hence making it impossible to distinguish which body fluid is identified), may be due to the bio-marker being present in multiple species, may be due to the inherent deficiency in the test that reacts with other substances in addition to the biomarker or to a combination of these factors. A positive presumptive test may indicate that the bio-marker is present and thus may be an indication that the body fluid could be present. A confirmatory test will only identify one body fluid from one species - assuming that the test is working properly (and was properly conducted), a positive test confirms the presence of the bio-marker thus confirming the presence of the body fluid.
9. RSID™-Blood and RSID™-Semen are confirmatory tests (only one body fluid from one species is detected by these tests); RSID™-Saliva and RSID™ -Urine are presumptive tests (salivary α-amylase is present in saliva, human milk, feces [we swallow saliva all day long] and in the urine of some individuals; RSID™-Urine will detect the urine of humans and some additional species).

**II. ANALYSIS OF SUBMITTED EVIDENCE**

10. In the present case, Independent Forensics received the listed item of evidence (MOS-2467 #ID) on 12/08/2016 and began an examination on 01/25/2017. As presented the seals on the evidence were intact. The evidence consisted of cotton batting, a portion of which was discolored / soiled and presented in a plastic bag. As no context for the batting material was provided it was impossible to determine what part of the original swab the batting represented, thus making any subdivision of the material impossible. The entire batting was therefore soaked/extracted in *situ*.
11. The process of performing forensic body fluid testing requires that the item / evidence (swab batting or stain on fabric) be 'soaked' or wetted to promote the solubilization of the bio-marker; in more prosaic terms the evidence is dunked in water and agitated to promote the release of the biological material into the liquid phase. Pure water should not be used, but rather a solution specific to and optimized for the specific body fluid test; this buffer solution is generally supplied by the manufacturer of the test.
12. In the present example, we used our extensive knowledge of the RSID™ (Rapid Stain Identification) tests to identify the buffer combination that would provide the most sensitive and specific bio-marker identification from the limited amount of physical evidence present in MOS-2467 #ID.
13. On 01/25/2017 testing for the presence of saliva using RSID™-Saliva was perfonned. Positive and negative controls were of course used at the same time as the questioned sample extract was tested. Both controls returned the expected result (negative for the buffer control, positive for the known positive sample); the extract from MOS-2467 #ID tested negative for salivary α-amylase, the bio-marker used for the identification of saliva. Thus, no evidence of this body fluid from this exhibit was obtained.
14. On 01/30/2017 testing for the presence of human blood was performed using RSID™-Blood. Positive and negative controls were of course used at the same time as the questioned sample extract was tested. Both controls returned the expected result (negative for the buffer control, positive for the known positive sample); the extract from M0S-2467 #ID tested negative for glyocophorin A, the bio-marker used for the identification of human blood. Thus no evidence of this body fluid from this exhibit was obtained.
15. On 01/30/2017 testing for the presence of human semen was performed using RSID™-Semen. Positive and negative controls were of course used at the same time as the questioned sample extract was tested. Both controls returned the expected result (negative for the buffer control, positive for the known positive sample); the extract from M0S-2467 #ID tested negative for semenogelin, the bio-marker used for the identification of human semen. Thus no evidence of this body fluid from this exhibit was obtained.
16. On 01/31/2017 testing for the presence of urine was performed using RSID™-Urine. Positive and negative controls were of course used at the same time as the questioned sample extract was tested. Both controls returned the expected result (negative for the buffer control, positive for the known positive sample); the extract from M0S-2467 #ID tested negative for Tamm-Horsfall, the bio-marker used for the identification of urine. Thus no evidence of this body fluid from this exhibit was obtained.

**III. CONCLUSIONS OF SOURCE ATTRIBUTION TESTING ON ALLEGED HOOD LATCH SWAB**

17. All four body fluid tests provided negative results from the tested, questioned sample.
18. The documentation from the Wisconsin Department of Justice State Crime Laboratory - Madison provides an estimate of the amount of DNA recovered from their retained portion of the evidence. In technical language: the qPCR analysis returned a value of 0.062 nanograms per microliter from 30 microliters of final extract (0.0616 ng/μL in 30μL). This computes to a total of ~1.9 nanograms of human DNA recovered from the evidence processed by the Wisconsin Department of Justice State Crime Laboratory - Madison.
19. Given the efficiency of the methods in use at that laboratory we can back calculate the volume of saliva, semen or blood that would be required to be present for the amount of DNA recovered from the cotton batting since the DNA content of these body fluids are well known.
20. Given the known sensitivity of the RSID™ tests, we can be confident the testing regimen used would have detected any of these body fluids had they been the source of the DNA identified on M0S-2467 #ID.
21. While not definitive, this analysis lends strong support that the source of the DNA from this sample is unknown and is not likely to be blood, saliva or semen or urine.

**III. CONCLUSIONS OF SOURCE ATTRIBUTION TESTING ON ALLEGED HOOD LATCH SWAB**

22. DNA profiles are derived from the molecular biological analysis of DNA; CODIS DNA profiles (laboratory slang for the DNA profile that is most often obtained and that can be stored and searched in a DNA database) and Y-STR profiles (technically a male haplotype) are derived from chromosomal DNA contained in the nucleus of human cells\*. Another type of forensic DNA testing, mitochondrial DNA analysis, derives from analyzing the DNA contained in the mitochondria, an organelle in the cytoplasm of human cells. Although obvious to the point of being inane, the DNA that ultimately provides the DNA profile has to come from somewhere, *i.e*., some biological source of human cells or the remnants/ debris of human cells. Identifying the source of the DNA can have profound implications and repercussions in the investigation, prosecution and outcome of a criminal case. *[\*For simplicity we are ignoring the fact that higher primates can yield DNA profiles if analyzed by current forensic DNA laboratory methods; this technical detail is not significant in the current case.]*
23. It is well documented that DNA was isolated from the listed item and this DNA generated a DNA profile of the defendant. The process of obtaining a DNA profile from a biological sample includes an obligatory step to determine / estimate the amount of recovered DNA; this step is called DNA quantification. The current method of DNA quantification uses a technique, quantitative PCR (qPCR), a variant of the polymerase chain reaction. The documentation from the Wisconsin Department of Justice State Crime Laboratory - Madison reveals that ~1.9 ng of human DNA was recovered from the listed sample (technically 30μL of a DNA solution at a concentration of 0.0616 ng/μL).
24. At trial, it was claimed that the defendant's DNA on the listed item of evidence was deposited from "sweaty fingers". This is of cowse pure speculation as there is no forensic test for the presence of sweat - nonetheless the DNA that generated the profile came from somewhere.
25. In an attempt to replicate the findings reported by the Wisconsin Department of Justice State Crime Laboratory - Madison, our laboratory performed a series of experiments on a vehicle identical (*i.e.*, same make, model and year) to that impounded by law enforcement in this case (M0S-2467 #A).
26. Volunteers were enlisted to open the car hood of this surrogate vehicle using the engine compartment hood latch; the latch was then swabbed and the quantity of DNA recovered estimated by qPCR, the current (and identical) method used by the Wisconsin State Forensic DNA Laboratory, Madison.
27. This experimental test was repeated fifteen (15) times. The hood latch was of course cleaned after each round of hood opening and subsequent swabbing.
28. The results of this test series is instructive: in eleven (11) of the fifteen (15) replicates, no detectable DNA was recovered from the hood latch. In other words, the amount of DNA recovered after swabbing the hood latch used to open the vehicle engine hood was less than the minimum detection threshold of the qPCR method; *i.e.*, less than 0.005 ng/μL. In four (4) of the replicates, quantifiable DNA was recovered with the following results: 0.0519 ng, 0.0936 ng, 0.0696 ng and 0.0729 ng.
29. In other words in almost three-quarters (73%) of the hood opening trials, no measurable DNA was left behind by the individual who opened the hood. Put another way, even when DNA was left on the hood latch after opening the hood, the amount of DNA recovered was between twenty (20) and thirty-five (35) times less than that recovered from the item identified as MOS-2467 #ID. To put it yet another way, the Madison laboratory recovered from six (6) to seven (7) times more DNA than all of the DNA recovered from all of the fifteen (15) hood openings, combined.
30. Given the experimental results, both the body fluid detection data and the DNA recovery data from the hood latch opening trials, the question of what sample MOS-2467 #ID really might be, becomes a subject for investigation.

**V. ANALYSIS OF DNA CONCENTRATION ON EXEMPLAR KEY**

31. Similar to the experimental work to replicate the hood latch results, an experiment was done to try to replicate the results from the ignition key (item mOS-2467 #C) of the victim's automobile. An exemplar key, reportedly held by Mr. Avery as if to start a car, *i.e*., gripped by ungloved fingers for twelve (12) minutes, was subject to qPCR analysis (*i.e*., DNA quantification). It was determined that 0.017 nanograms per microliter (ng/μL) was recovered. This result was ten (10) times less NDA than reported by the Wisconsin Department of Justice State Crime Laboratory - Madison on the key they analyzed, item MOS-2467 #C. An order of magnitude difference is a significant finding.

**VI. EVIDENCE- CHAIN OF CUSTODY, ENHANCEMENT, PRODUCTION**

32. For a variety of reasons the forensic evidence in WI v Avery is being seriously scrutinized and re-examined. This includes the forensic DNA analysis conducted by the Wisconsin Department of Justice State Crime Laboratory - Madison on item M0S-2467 #ID. The data.obtained from body fluid identification testing, from DNA quantification, from the DNA profile and from attempts at replicating the sample in question are contradictory. The data show an acceptable DNA profile from a sample with no indication of a body fluid; a robust amount of DNA recovered from the sample and yet attempts to replicate this finding failing, repeatedly. These facts prompt a re-evaluation of this item of evidence.
33. It is an oft-repeated fear heard from many defendants that the evidence in their case has been enhanced, manufactured or otherwise manipulated to their disadvantage. There is no doubt that evidence tampering occurs, though there is little to support the contention that this is a widespread practice. It is often assumed that creating an item of evidence *de novo* or enhancing an item of evidence is an effective method of evidence tampering; however simply relabeling an errant known standard / reference swab as a questioned item/exhibit, accomplishes the goal of identifying the defendant far more efficiently. There is sufficient evidence to hypothesize that this approach to evidence tampering occurred for sample M0S-2467 #ID.
34. The chain of custody and disposition of two groin swabs taken from the defendant during his arrest is neither complete, accurate or transparent. Such a sample, relabeled as taken from the hood latch of the victim's vehicle, would satisfy all of the observed facts: lack of body fluid, sufficient amount of DNA for a profile and would link the defendant to the victim without all of the messy and complicated effort to actually deposit DNA on a grease and engine grimed engine compartment metal latch.
35. The convenience of this explanation, (*i.e.*, a reference swab relabeled as an evidence swab) and the fact that it accounts for the physical findings observed from the analysis of item M0S-2467 #ID does not prove evidence tampering, or more precisely, evidence reassignment. But this hypothesis is a far better 'fit' to the data, experimental trials and needs of the investigators for clear and convincing evidence of a link between the defendant and the victim's vehicle. A swab truly taken from the engine compartment hood latch should have been covered in black engine grime and grease as anyone who has ever had to open the hood of a high mileage car can attest. The swab batting in question was merely very lightly discolored; another fact that does not 'fit' with the claimed origin of this sample.

**VII. ANALYSIS OF BEDROOM SLIPPERS AS POSSIBLE SOURCE OF DNA ON M0S-2467 #C, TOYOTA KEY**

36. Our lab conducted an experiment to examine whether the bedroom slippers (Calumet County Sheriff’s Department Property Tag Nos. 8359 and 8360) recovered from Mr. Avery's residence, could have been the source of his DNA detected on the Toyota ignition key, M05-2467 #C, allegedly recovered from Mr. Avery's bedroom. This hypothesis was tested by creating a pair of worn slippers (sockless, nine hours a day for five days) and using this worn item as a source of DNA on an exemplar ignition key. The procedure was to prepare the slippers, rub the key and then measure the DNA that was transferred, again suing the qPCR technique. This approach yielded 0.0393 nanograms per microliter (ng/μL), well below the concentration of DNA reported by the Wisconsin Department of Justice State Crime Laboratory - Madison for the key they analyzed, M0S-2467 #C, at 0.17 nanograms per microliter (ng/μL).
37. These data do not support the hypothesis that the DNA identified on the Toyota ignition key came from contact with the slippers photographed in, and recovered from, Mr. Avery's bedroom. If the Toyota ignition key was indeed 'enhanced', then it is likely that some other personal item of Mr. Avery's was used for this purpose; some possible examples might include a toothbrush or a cigarette butt.

**VIII. CONCLUSION REGARDING CHAIN OF CUSTODY**

38. In order to account for the physical findings of body fluid identification (actually the lack thereof), of DNA profiling, of attempts at evidence recreation, and of the physical condition of item MOS-2467 #ID, it is hypothesized that a rubbed groin swab taken from the defendant was relabeled and thus became evidence from a hood latch. This hypothesis has not been proven, but it fully explains all of tbe known facts regarding this item. Taken in context with other facts and allegations in the case of WI v Avery, this hypothesis deserves carefully consideration from the trier of fact.

## Supplemental affidavit of Karl Reich, Ph.D.

### Part of motion

*Defendant Steven Avery’s Motion for Reconsideration*

### Date signed

20 October 2017

**I, Dr. Karl Reich, under oath and under the penalty of perjury, state that:**

1. This is a supplemental affidavit written specifically to address the apparent confusion and unfortunate technical misunderstandings made by the court in regard to a previous filing in this case made on October 3, 2017.
2. No new data, results, or opinions are offered at this time; this document addresses the apparent errors, confusion and misunderstandings as expressed in the court's opinion rendered on this matter on October 3, 2017.
3. Specifically, the court's opinion reads: "*The author of the report concedes that there is no forensic test available that can conclusively determine whether DNA was left by sweat. As such, the report cannot conclusively state that the DNA on the hood latch could not have been left by the sweat of the defendant's hand.*" (Opinion at 3) (emphasis added).
　The facts are somewhat different: The allegation at trial was that the DNA Mr. Avery left on the car hood latch came from sweat. This allegation is demonstrably false in regard to (1) the inability to identify this body fluid and (2) that whatever DNA might have been carried by skin cells in the sweat is many times less than the DNA that was allegedly recovered from the hood latch.

**i)** there being no test, assay, measurement or analytical method that can identify sweat as a body fluid, the prosecution's assertion is pure storytelling with no scientific foundation;
**ii)** sweat, which technically has no DNA whatsoever [sweat is an exocrine secretion of water and salt], can only have DNA that is derived from the few sloughed skin cells carried along in the aqueous volume; *i.e.*, the amount of DNA deposited from 'sweat' would be roughly equivalent to that left by simple touching of an object;
**iii)** the series of experiments that were carried out to replicate the prosecution's assertion of sweat/DNA on the hood latch does not support the prosecution's assertion of the source of the DNA. As the court returns to this topic, this is further explored below: -here we summarize that fifteen (15) volunteers were recruited to open the hood latch of the same model and year as the automobile from the case and then the amount of DNA left on the hood latch was measured by the same technique used by the Wisconsin State Laboratory.
4. Specifically the court's opinion reads: "*The report indicates that 15 people, unidentified by any statistical data, touched the hood latch of a car substantially similar to the one owned by the victim and found on the defendant's lot. Of those individuals, 11 left no trace. As a result, the report concludes that it is highly unlikely that the defendant's touch left the DNA on the hood latch.*" (Opinion at 3) (emphasis added).
　As far as this goes, the court recaps the experimental approach, *i.e.*, replicating the action asserted in the prosecutor's case. The comment, "*unidentified by any statistical data*" (italics added) is somewhat opaque, but may be related to an older, and discredited, concept of 'secretor vs. non-secretor' or to the sample size (15 individual measurements) used in the experiment.

**i)** the concept of secretor vs. non-secretor which was a purported to be an individual characteristic and used in conjunction with a series of (true) genetic markers prior to the current DNA-STR method, actually has no basis in analytical science or human genetics. There was never, nor is there presently, any genetic or analytic data to support the designation of secretor or non-secretor although this concept continues to persist in the memory of some jurists. In other words there is no such thing as a secretor (or for that matter a non-secretor) and this designation was, and is, pure junk science. If this concept is the origin of the court's comment, "*unidentified by any statistical data,*" it is not only irrelevant, but erroneous. The so-called method to determine the 'secretor status' (note quotation marks) of an individual was merely the observation that the amount of DNA that is deposited on forensic evidence will vary with the item, pressure, time of contact, time since hand-washing and other poorly understood variables.
**ii)** in stating "*unidentified by any statistical data,*" the court may be referring to a possible statistical bias when small sample sizes are analyzed in an experiment. Here the analysis from fifteen (15) separate contacts from fifteen individuals is a reasonable number of independent tests sufficient to provide substantive information to the trier of fact in regard to the amount of DNA that could be expected to be left on a hood latch after a contact that replicates an action described at trial.
iii) no identification or differentiation of the individuals who participated in the hood latch experiments is relevant as there is no theoretical, experiential or analytical method that would favor one person over another as leaving more, or less, DNA on an item of evidence, here a hood latch. Thus the choice of individuals cannot, and does not, bias the experimental results.
5. Specifically the court continues: "*Furthermore, while 11 of the test subjects did not leave detectible DNA on the hood latch, the fact remains that 4 of the test subjects did leave detectible DNA by touch. The report does not give any quantifiable statistics as to the amount of DNA left in his tests or comparable data to the test performed on the hood latch in question and entered into evidence at trial. Contrary to the defendant's assertions, the test of the DNA on the hood latch does not rule out the defendant's hand as the source of the DNA. In fact, the report declines to make such a conclusion, noting that the matter could become a subject of further, non-DNA, investigntion.*" (Opinion at 3-4) (emphasis added).
　Unfortunately the court is in error as precise values were provided for (a) the amount of DNA allegedly recovered by the Wisconsin State laboratory from the hood latch of the vehicle and (b) the four (4) replicates of the experimental hood openings that did leave some detectable DNA.

**i)** The Wisconsin State laboratory recovered approximately 1.9 nanograms of DNA from the item of evidence named as the hood latch: to be precise, 30 microliters of a 0.0616 ng/μL solution of purified DNA which equals ~1.9 nanograms. These data were provided previously.
**ii)** the four attempts at opening the hood latch that did leave detectable DNA quantified at 0.0519 nanograms, 0.0936 nanograms, 0.0696 nanograms, and 0.0729 nanograms. These data were provided previously.
**iii)** the total amount of DNA that was recovered from the fifteen (15) hood opening trials was 0.288 nanograms [0.0519 + 0.0936 + 0.0696 +, 0.0729]. These data were provided previously.
**iv)** the difference in the amount of DNA recovered from the hood opening trials versus the amount of DNA recovered by the Wisconsin State laboratory is six (6) fold (to be precise, 6.6 times); *i.e.*, from a total of 15 attempts six times less DNA was recovered than quantified by the State laboratory. These data were provided previously.
It was left to the court to calculate that it would take approximately 90 attempts at opening the hood to deposit the amount of DNA recovered by the Wisconsin State laboratory. i.e., from 15 attempts 0.288 nanograms was recovered: therefore to deposit 1.9 nanograms it would take approximately 6 times as many trials, 15 x 6 or 90 attempts at opening the hood.
6. The court made several errors in fact, detailed above, in its response to the defendant's motion for post-conviction relief. It is hoped that the clarification and adjustments herein will help the trier of fact to more correctly understand the laboratory and testing results in this case.

## See also

* *Motion for Post-conviction Relief*
* *Defendant Steven Avery’s Motion for Reconsideration*
* List of affidavits for Zellner’s appeals