DUNG NGUYEN - October 28, 2013 Recross-Examination by Ms. Gutierrez. MS. LOGAN: Thank you, Judge. KATHLEEN MCKINNEY,

Transcription

1 DUNG NGUYEN - October, Recross-Examination by Ms. Gutierrez 0 MS. LOGAN: Thank you, Judge. KATHLEEN MCKINNEY, having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MS. LOGAN: Q. Good morning, ma'am. Would you say please introduce yourself to the folks on the jury? A. Good morning. Kathleen McKinney. That's K-A-T-H-L-E-E-N, M-C-K-I-N-N-E-Y. Q. Tell us what it is you do for a living, Mrs. McKinney. A. I'm a DNA analyst. I work for the Texas Department of Public Safety Crime Laboratory. Q. Tell us about your education and experience that qualifies you as an expert in the field of DNA analyst. A. I have a bachelor of science in biomedical science from Texas A & M University, and I have a master of science in forensic science from Sam Houston State University. Starting in 0, I worked for three different labs and received training at every lab. First was Identigene in Houston, and then it was Orchid Cellmark in Dallas and the Texas Department of Public Safety. Q. Tell us how, long have you been with the Texas

2 KATHLEEN MCKINNEY - October, Direct Examination by Ms. Logan 0 Department of Public Safety in their crime lab? A. Since February of 0. Q. And about how long did you work for Identigene? A. I worked there for about two years. Q. And then how long did you spend at Orchid Cellmark? A. For about a year-and-a-half. Q. I want to talk you a about a case that you worked on back when you were employed at Identigene. Were you there March th of 0? A. May I look at my case file? Q. Absolutely. A. Yes, I was. Q. And at that point in time, were you tasked with doing DNA analysis on items that were submitted to the lab? A. Yes, I was. Q. And at that point in time, was the Houston Police Department Crime Lab outsourcing some of its DNA analysis to Identigene? A. Yes. They were a client of ours at that time. Q. So was Identigene an accredited laboratory for the purposes of doing forensic DNA analysis? A. Yes, through ASCLD-LAB, the American Society of Crime Lab Directors Accreditation Board.

3 KATHLEEN MCKINNEY - October, Direct Examination by Ms. Logan 0 Q. Now I want to talk to you about the work that you did on this case. Can you tell us what the lab number or Identigene case number was for your work? A. The unique Identigene case number was. Q. In your report, do you note that work was done for the Houston Police Department? A. Yes. It's on the report. Q. And can you tell us what the lab number and incident number were for the Houston Police Department identification purposes? A. Yes. It was L0-0E. MS. LOGAN: May I approach the witness, Judge? THE COURT: You may approach. MS. LOGAN: Thank you. Q. (By Ms. Logan) Mrs. McKinney, I'm going to show you what I've marked as State's Exhibit 0 and ask you whether or not you recognize it? A. Yes, I do. Q. And is it a fair and accurate copy of the report that you generated pertaining to your work on this case? (Off-the-record discussion) A. Yes. Q. (By Ms. Logan) Is it a record that is kept in

4 KATHLEEN MCKINNEY - October, Direct Examination by Ms. Logan 0 the normal course of business at that point in time with Identigene? A. Yes. Q. And does it accurately reflect the results that you got from the DNA analysis you did in this case? A. Yes, it does. Q. Okay. MS. LOGAN: At this time I'm going to mark it. At this time I would offer into evidence State's Exhibit, the Identigene lab report, tendering to defense counsel. MR. EASTERLING: No objection, Your Honor. THE COURT: Okay. State's is admitted. You may publish. MS. LOGAN: Thank you, Judge. Q. (By Ms. Logan) As a part of your work in this case, did you compare the known DNA buccal swabs of two individuals, Charles Jones and Kevin Chaney, to some evidence that was submitted in this case? A. Yes. We actually only received the buccal swabs from those two individuals, and then we received the DNA profiles from the evidence that the HPD lab had done. Q. And is that standard practice for labs in

5 KATHLEEN MCKINNEY - October, Direct Examination by Ms. Logan 0 situations like this to utilize the extractions from another lab and then perform analysis at your lab? A. Yes. And when we receive the data from them, we have them submit their whole case file so we can see in electronic data, as well, and verify that the DNA typing is correct. Q. Now let's talk about Item F that we see here on State's Exhibit. Can you tell us which, if any, of the reference samples that were provided to you were consistent with the DNA on Item F, work shirt cutting? A. Yes. The DNA profile that we received from the HPD lab from the Item F work shirt cutting was a single source male DNA profile, and the profile matches the DNA profiles obtained from the buccal swabs labeled Charles Jones. Q. And tell us about the results that you reached with respect to Item L. A. For L, we also received that DNA profile from the HPD lab; and we compared it to both buccal swabs. It was a -- found to be a mixture of male DNA from at least two individuals. That means there's more than one person in that DNA profile. Kevin Chaney cannot be excluded as a possible contributor to this mixture. Q. And with respect to your analysis of the known buccal swabs or DNA samples of Kevin Chaney and Charles

6 KATHLEEN MCKINNEY - October, Direct Examination by Ms. Logan 0 Jones and comparing them to the results from items of evidence in this case, you wrote a report. Did you do anything else with respect to DNA in this case? A. That is correct. Q. Okay. And one last thing. We can see on Page of your report, State's Exhibit, that it's signed by Kathleen Born. Can you tell us why you're Kathleen McKinney now? A. Yes. Born is my maiden name, and McKinney is my married name. MS. LOGAN: I'll pass the witness, Judge. THE COURT: Okay. Defense, cross? CROSS-EXAMINATION BY MR. EASTERLING: Q. Hello, Miss McKinney. I'm Danny Easterling. I represent Mr. Jones. How are you doing? A. I'm fine. How are you? Q. Okay. You were only asked to do comparisons on two items, a work shirt cutting and a glove, correct? A. Yes. Well, we received the evidence profiles from HPD; and we were given the buccal swabs from Charles Jones and Kevin Chaney to actually process in our lab and compare them to the data that we received from the HPD lab. Q. Okay. My question was -- let me rephrase it --

7 KATHLEEN MCKINNEY - October, Cross-Examination by Mr. Easterling 0 were you asked to compare any of the items of evidence besides a work shirt cutting or a glove? A. No. We were specifically asked to compare just those two items. Q. Okay. I wanted to make sure the jury understood that; because in evidence there's many more items, okay -- A. Yes. Q. -- that were tested by other labs, okay, or another lab, correct? A. Well, I don't know about the other evidence; but that is -- Q. You weren't asked to test a wig, you weren't asked to test a baseball cap, a shirt a T-shirt, a sweatshirt, none of those items, correct? A. No, sir. Q. Okay. All right. Let's talk about the work shirt cutting. Who did the serology on that? A. Well, the actual serology was done with the HPD bio lab. Q. Okay. And then they transferred that report to you to work from that? A. We got their whole case file, so it actually is in here. What we did when we got the case file, though, is we just looked at the data from the DNA profiles for

8 KATHLEEN MCKINNEY - October, Cross-Examination by Mr. Easterling 0 those two items of evidence that they wanted us to compare. Q. I just want the jury to understand. So, Houston Police Department is the one that actually cut the shirt? A. Yes, sir. Q. And sent that to you, correct? A. No, sir. They actually did the DNA testing at the HPD lab. We just received the DNA profiles that they already obtained. Q. Okay. I understand now. So they sent you -- I guess, digitally, they sent you the DNA profile? A. It was a hard copy and, also, the electronic data digitally. Q. Now this is touch DNA that we're talking about as opposed to bodily fluid DNA, correct? A. I would have to look at their case file to see what kind of serology they found, what their results were. Q. Okay. If we assume that there has been evidence prior to this last week that there was swabs on the work shirt collar done and preserved, that would be looking for touch DNA, correct? A. Yes, that's correct. Q. And they're looking for skin cells that shed

9 KATHLEEN MCKINNEY - October, Cross-Examination by Mr. Easterling 0 off of a neck onto the cotton or whatever clothing that is, right? A. That's correct. Q. Okay. Now, you can't tell the jury when this particular DNA of skin cells was deposited on that shirt, can you? A. No, sir. Q. In fact, skin cell DNA, touch DNA, can stay on a collar of a shirt for a long time if that shirt is out of the elements and is protected, correct? A. Yes. Usually, we have seen it on cold cases that we can get profiles from skin cells. It is dependent on the elements, of course, and how it was maintained throughout the years. But typically, you're able to get, you know, a DNA profile from that. Q. You mentioned cold cases. So the jury understands what you're saying, that can be evidence that's been somewhere for months or sometimes even years where you can get a DNA profile, right? A. It depends on the factors, of course; but yes, we have been able to in some cases. Q. So if the shirt is not outside in direct sunlight and the rain and all of those kind of things, then that touch DNA can stay on that collar a long time if it's not washed in a laundry washing machine, right?

10 KATHLEEN MCKINNEY - October, Cross-Examination by Mr. Easterling 0 A. Typically, that's correct. It also depends on how much that person sheds skin cells. Q. That is another variable, too. Some human beings shed a little bit, some shed moderately and some shed a lot of skin cells, correct? A. That's correct. Q. So touch DNA is highly dependent upon that variable? A. That's correct. Q. And when you perspire, does that also take skin cells away from the skin and deposit it onto clothing? A. Yes. Sweat is actually a really good source of DNA, also. Q. All right. So -- and that's a very consistent expert opinion in the field of DNA science, that this type of touch DNA can stay on an object like a shirt for a long time under controlled conditions, correct? A. That's correct. Q. I mean, there is all kind of research that's been done on that; articles, testing, all those kind of things that's been done on that subject, right? A. Yes. Q. And do you know Clay Davis, who works for the Houston Police Department's Crime Lab? A. No, I do not.

11 KATHLEEN MCKINNEY - October, Cross-Examination by Mr. Easterling 0 Q. Well, he testified last week. I'm just wondering if you might know him. Okay. So, let me give you a hypothetical situation. If a shirt like this work shirt where the cutting came from, if it's found in some bushes or in some weeds, all right, and it is then put into a sack and then it's brought into the lab, you can't tell us, as a DNA scientist, when the DNA was deposited on that shirt if that's the fact situation we have? A. No, I cannot. Q. And even though it's a single source profile, there is cut-offs on your -- I guess your computer programs and your software programs where there could be other DNA on there; it just hasn't risen to the level where you can identify it, correct? A. There is a threshold that labs typically set. They validate it in their lab, so it can be different from lab to lab. And that is correct; sometimes you do have data below threshold that you can't use. Q. And, also, if there is some other DNA that may be on there, you can't tell us, as a DNA analyst, who wore the shirt last or who wore the shirt first, can you? A. No, sir. Q. So just because you get a single source profile

12 KATHLEEN MCKINNEY - October, Cross-Examination by Mr. Easterling 0 for Charles Jones doesn't mean that you can say with any certainty that he was the last one to wear the shirt and throw it in the weeds, correct? A. No, I cannot say that. Q. The glove that you worked on, there was no DNA profile from Charles Jones on Item L, the glove, correct? A. I'm sorry. Can you repeat that? Q. The only name I see from your report on Item L, the glove, was a man named Kevin Chaney. A. Yes. Q. No other conclusions about the Charles Jones' buccal swab, correct? A. No. It was a mixture, and Kevin Chaney could not be excluded. The other person that is present in the mixture, they were too low to actually compare to anyone; so that's why no conclusions were made regarding the other possible contributor to this mixture. Q. Charles Jones was not mentioned in your report as being someone who could not be excluded, correct? A. We weren't able to exclude him based on the information that we had. It was too low. We weren't able to make a conclusion on the second contributor in that mixture. Q. And how many other people were in that mixture?

13 KATHLEEN MCKINNEY - October, Cross-Examination by Mr. Easterling 0 Could there be two or three others in there; you just didn't get to the threshold again? A. It was a mixture of at least two individuals, so it is possible that there is another person there. Because it depends on how much -- some alleles are shared in the population, and it's -- and especially if you have a very minimal amount of information that's above threshold, it can be difficult to tell how many people are in there. Q. Now the last questions about touch DNA. If a rubber glove, you know, your typical medical kind of rubber glove, if it has holes in the fingertip or the thumb tip to expose the skin of the tip of that finger or thumb, and if it touches something with that glove on, that could potentially leave skin cells through the hole in the glove, correct? A. Onto the glove? Q. No, no, onto the item that they're touching. A. Oh, on the item. Oh, yes, definitely. Their DNA on that surface, is that what you're saying? Q. Yes. A. Yes. Q. Particularly, if the tear is large enough for the skin to be exposed, correct? A. Yes. And that also depends on the shed rate of

14 KATHLEEN MCKINNEY - October, Cross-Examination by Mr. Easterling 0 that person and if they're sweating, things like that. Q. It's not uncommon for your hands to sweat a lot when they're inside a rubber, non-breathable glove, correct? A. I would think so, yes. MR. EASTERLING: Pass the witness, Judge. THE COURT: Okay. Let's take a five-minute recess. Please remember your admonitions from the Court. (Brief recess) (Jury enters courtroom) THE COURT: All right. You may proceed. Please be seated. MS. LOGAN: Thank you, Judge. REDIRECT EXAMINATION BY MS. LOGAN: Q. All right, Mrs. McKinney, let me ask you this: Do you know of anyone, according to your research or research that you have reviewed -- whether there is anyone on earth who does not have DNA? A. No. Q. Okay. All humans have it, right? A. Yes. Q. And have you ever heard of or come into contact

15 KATHLEEN MCKINNEY - October, Redirect Examination by Ms. Logan 0 0 with research that suggests that there are humans out there that do not shed their DNA whatsoever? A. No, I haven't seen anything like that. Q. So, we all shed it. Some people shed it a lot; some people shed it a little bit? A. Yes. Q. Now if two people were to wear the same item of clothing, and let's say hypothetically they sweat in it, they both sweat on the item, it is then preserved and tested for DNA, would you expect to find a single source DNA profile or a mixture of DNA profiles? A. If both individuals sweated on the clothing, I would expect to see a mixture. MS. LOGAN: Pass the witness, Judge. THE COURT: Okay. Any recross? MR. EASTERLING: A little bit, Judge. RECROSS-EXAMINATION BY MR. EASTERLING: Q. Of course, again, I guess your answer to that question is, dependent upon how much they sweated on it, right? A. Yes, that's correct. Q. So if somebody's running in the shirt in June of 0, in the City of Houston when it's hot and it's humid, they're going to be expected to sweat some,

16 KATHLEEN MCKINNEY - October, Recross-Examination by Mr. Easterling 0 right? A. Yes, that's correct. Q. And if somebody had wore it in June, again, maybe even a day or two or three or four, or two or three weeks prior to that and sweats onto it, you may get that or you may not get that DNA profile, right? A. Yes. It just depends on how much sweat that person -- how much that person sweated and, also, how much they shed. Q. All right. MR. EASTERLING: Pass the witness. THE COURT: Okay. MS. LOGAN: Nothing further, Judge. THE COURT: You are excused. MS. LOGAN: You want us to approach, Judge? THE COURT: Yes. (Off-the-record discussion) THE COURT: All right. We finished a little earlier than we anticipated this morning. So you guys are going to -- I'm going to allow you to walk around outside and get a little sun. Your food will be here at :. We will resume testimony -- we'll start at :0. So, please remember the admonitions from the Court.