Commonwealth v. Read — Trial ArchiveAndre Porto — Direct
378 linesWhereupon, ANDRE PORTO having been first duly sworn, was examined and testified under oath as follows:
JUDGE CANNONE: Whenever you're ready, Mr. Lally.
MR. LALLY: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good afternoon, sir.
MR. PORTO: Good afternoon.
MR. LALLY: First, let me just say just for clarification, that microphone in front of you is adjustable. You can move it up and down any which way you'd like. Good afternoon, sir. Could you please state your name and spell your last name for the jury?
MR. PORTO: Yes. My name is Andre Porto, last name spelled P-O-R-T-O.
MR. LALLY: And what do you do for work, sir?
MR. PORTO: I am a Forensic Scientist II at the Massachusetts State Police Crime Lab in the DNA Unit.
MR. LALLY: And, sir, if I could ask you just a few questions about your educational background, starting with your undergraduate work. Where did you go to school and what, if any, degrees did you receive from them?
MR. PORTO: I received a Bachelor of Science Degree in Microbiology at the University of Massachusetts in Amherst. And then -- yes.
MR. LALLY: Where did you go from there?
MR. PORTO: I went to the Boston University School of Medicine, and I got a Master of Science in Biomedical and Forensic Sciences.
MR. LALLY: And about what year was that that you received that Master's?
MR. PORTO: I graduated in 2019.
MR. LALLY: And then following receipt of your master's, where did you go from there?
MR. PORTO: I went to the Massachusetts State Police Crime Lab.
MR. LALLY: And, when you joined the Massachusetts State Police Crime Lab initially, what was your title and sort of what were your duties and responsibilities with relation to that title?
MR. PORTO: So I joined as a Forensic Scientist I, and that is a training position where I underwent a training program that consisted of a bibliography with multiple journal articles and textbooks, as well as conducting the lab processing on training samples.
MR. LALLY: And that sort of initial work that you did, that's referred to as an FS-I; is that correct?
MR. PORTO: Yes.
MR. LALLY: And that initial work that you did as an FS-I, how long did you do that before you became a Forensic Scientist II?
MR. PORTO: The training, itself, was approximately six to eight months. And then within a year, I was promoted to an FS-II.
MR. LALLY: And, when you were promoted to work as an FS- II, what, if any, specific unit were you assigned to within the lab?
MR. PORTO: The DNA unit.
MR. LALLY: And have you essentially been with the DNA unit since that assignment initially occurred?
MR. PORTO: Yes.
MR. LALLY: Now, just a few questions about the lab at the state police crime laboratory. Is that lab accredited by anybody?
MR. PORTO: Yes. We are accredited by ANAB. And that stands for ANSI National Accreditation Board. And the ANSI stands for American National Standards Institute.
MR. LALLY: And, with reference to that accreditation, can you describe to the jury just a little bit about generally in terms of what goes into accreditation of a lab from ANAB?
MR. PORTO: Yes. So this organization, ANAB, they came into our lab and they reviewed all of our protocols, ranging from facility security, the protocols that we do in the lab to staff education and training and to make sure that we are meeting all the standards that we are being accredited to.
MR. LALLY: And the lab at MSPCL, it's accreditation, is it up to date at this point?
MR. PORTO: Yes.
MR. LALLY: Now, with reference to yourself, personally, sir, in regard to your casework and in regard to your training, are you familiar with the term "proficiency testing"?
MR. PORTO: Yes.
MR. LALLY: And can you explain to the jury what that is and sort of how often and what consists of the proficiency testing that you've undergone?
MR. LALLY: Yes. So a proficiency test is given ona semi-annual basis, so twice a year, by an outside agency. And we don't know what the results are, and we treat it as a regular case. So we undergo -- we take it through the regular DNA processing and we have to pass that proficiency test to show that we maintain our competency in whatever work we are doing in casework.
MR. LALLY: Sir, as far as the proficiency testing that you've undergone, what have been the results of your proficiency testing?
MR. PORTO: I've passed all of mine.
MR. LALLY: Now, sir, it may be a term that's pretty well understood, but if you could explain to the jury, at least based on your training and experience, what your understanding is of a couple of different terms. And, first, what I'm going to start with is DNA, itself. What is DNA?
MR. PORTO: Yes. So DNA stands for deoxyribonucleic acid, and that is basically the genetic blueprint that makes us who we are. And we each have two copies of it. We inherit one from our mom and one from our dad. And that combination makes us unique. With the exception of identical twins, everybody has a different DNA.
MR. LALLY: And is DNA the same in every cell of a person's body?
MR. PORTO: Yes. Barring any rare mutations, the DNA is the same. So if you take a blood sample anda saliva sample from the same person, the DNA should be the same.
MR. LALLY: What I'm going to ask you now is just a little bit about the process of DNA and how it's tested within your lab. Am I correct in saying that there is essentially four steps; is that correct?
MR. PORTO: Correct.
MR. LALLY: And approaching sort of chronologically, one of the steps is called extraction, correct?
MR. PORTO: Yes.
MR. LALLY: Can you explain to the jury how it is specifically that DNA is extracted by yourself in general terms when you're testing an item?
MR. PORTO: Yes. For the extraction step, I received the samples. They are in like small tubes that are closed. I will add a set of reagents to it, apply heat to that sample, and that will actually burst open the cells to make the DNA available for use.
MR. LALLY: Now, when you are extracting from a sample, do you know or is there a way to sort of measure how much DNA you're extracting from a sample?
MR. PORTO: Yes.
MR. LALLY: And can you explain sort of how it is that you know that?
MR. PORTO: Yes. So that's the second step that we call quantitation. And we take a small portion of that DNA that we extracted and we'll apply a different set of reagents and run it through an instrument that heats and cools down the sample. It goes through a cycle and allows us to estimate how much DNA is extracted.
MR. LALLY: Now, sir, what is PCR?
MR. PORTO: PCR stands for polymerase chain reaction, and it's basically known as molecular Xeroxing, where it's making millions of copies of specific areas that you can target of DNA.
MR. LALLY: Is that essentially the third step that you undergo?
MR. PORTO: Correct.
MR. LALLY: Now, what is STR?
MR. PORTO: It stands for short tandem repeat. And these are locations in the DNA that change. Each person is comprised of small little repeats in each person. However, repeats you have at that location is sort what would show up in your DNA profile.
MR. LALLY: Now, how is it with your work in the lab that you identify DNA fragments?
MR. PORTO: It's the fourth step, what we call detection, where after we amplified the specific areas that we are looking at in the DNA, we'll run it through an instrument that will separate them out and generate the DNA profile.
MR. LALLY: Now, within your work in the lab, are you familiar with terminology as far as a known item versus a questioned item?
MR. PORTO: Yes.
MR. LALLY: And can you explain what each of those mean in reference to your field and your work and sort of what is the difference between the two?
MR. PORTO: Yes. So a known item is an item that's collected directly from an individual and is to be used for comparison purposes whereas a questioned item is collected from let's say a crime scene where we don't know the source.
MR. LALLY: Now, as far as your lab or your unit within the lab, are there -- the DNA unit, itself, does it follow sort of standardized policies and protocols?
MR. PORTO: Yes, we do.
MR. LALLY: And who approves of those particular policies and protocols or procedures?
MR. PORTO: Our technical leader.
MR. LALLY: Now, could you explain the process used to analyze the evidence in this case?
MR. PORTO: Yes. So the evidence in this case underwent that four-step process I just described, which was extraction to quantitation to amplification, detection and then interpretation of the profile that was generated.
MR. LALLY: Now, what are some of the controls or what do you use during the course of your testing?
MR. PORTO: Yes. So there are two types of controls, positive and negative controls. So a positive control is a sample with a known DNA profile that we use to show that each step in the process worked as expected. And a negative control is a sample that has no DNA in it and it only receives the reagents that we are using. And that is to show that there is no inherent contamination of the reagents that we use.
MR. LALLY: Now, let me ask you, sir, if you know, what are some of the ways to prevent sort of DNA transfer from yourself or from someone else working on the case or from other samples that you may be working on with other cases?
MR. PORTO: Yes. So there are many ways. One way is to clean the workspace before you start working and after just to make sure that it's constantly being cleaned. Another way is to wear lab PPE, so personal protective equipment, like lab coats, face masks and hairnets. And another one is to make sure that we only have one tube open at a time so that we don't have any cross- contamination between samples.
MR. LALLY: Now, your work specifically, sir, does it undergo some sort of review process?
MR. PORTO: Yes, it does.
MR. LALLY: And, specifically, your work in this case, did it undergo that same sort of general review process pursuant to the policies and procedures you were speaking about before?
MR. PORTO: Yes, it did.
MR. LALLY: Now, when a case comes into the Massachusetts State Police Crime Lab, it's assigned a specific case number, correct?
MR. PORTO: Correct.
MR. LALLY: In this instance, I'm referring to a case number entitled 22-02184. Are you familiar with that case?
MR. PORTO: I am.
MR. LALLY: And you tested a number of different items within that case, correct?
MR. PORTO: Correct.
MR. LALLY: Now, as far as the items are concerned, similar to how items from a specific investigation or case are assigned a case number, are those different items assigned different item numbers, as well?
MR. PORTO: Yes, they are.
MR. LALLY: And if there is something that is taken, swabbed or cut or something from a specific item, how is that labeled in relation to the item that it was taken from?
MR. PORTO: So basically -- so let's say we have a parent item that's labeled 2-1. Then if we take a cutting of that item, it would be called -- if it's the first cutting, it would be called 2-1.1.
MR. LALLY: Now, in this case, sir, was a known standard processed?
MR. PORTO: Yes, it was.
MR. LALLY: And can you explain to the jury sort of how that process occurs in regard to processing a known standard?
MR. PORTO: Yes. So the lab processing is the same where it undergoes the same four-step process. Anda qualified analyst then looked at the DNA profile that was generated to make sure that it was a single source profile, meaning that at each location that we looked at, there were only one or two peaks. And, after that, it underwent the technical and administrative review process before it was closed out and ready for use, for comparison.
MR. LALLY: And do you known whose known DNA standard was processed in this case?
MR. PORTO: Yes.
MR. LALLY: And who is that?
MR. PORTO: A known blood standard from John O'Keefe.
MR. LALLY: Now, as far as your involvement in this case, what was your involvement in this case?
MR. PORTO: I performed the testing of the questioned items.
MR. LALLY: And did you have occasion to perform DNA analysis on certain items submitted to your lab in connection with this case?
MR. PORTO: Yes, I did.
MR. LALLY: Let me ask you about some specific items. Were you asked to perform some analysis on an item labeled 3-1.1?
MR. PORTO: Yes, I was.
MR. LALLY: And, if you know, what was that a sample from?
MR. PORTO: Would I be able to refer to my notes?
JUDGE CANNONE: Yes.
MR. PORTO: So that was a sample from passenger side taillight.
BY MR. LALLY:
MR. LALLY: And, with respect to that, there was a sample or DNA profile that was generated from that swab from the taillight, correct?
MR. PORTO: Correct.
MR. LALLY: And what, if anything, were the findings or what kind of -- what was the conclusion of the analysis of the profile from the swab taken from the taillight of the vehicle?
MR. PORTO: The DNA profile was interpreted as a three- person mixture including male DNA.
MR. LALLY: To be more specific, when an item comes in and it's assigned an item number, there is also a description that's provided along with sort of where the item came from?
MR. PORTO: Correct.
MR. LALLY: And so specifically, Item 3-1.1 is a sample from a passenger-side taillight, and it gives a specific Massachusetts registration plate of 3GC 684, correct?
MR. PORTO: Correct.
MR. LALLY: And so from the analysis of the swab or the profile that was obtained from the swab of the taillight, what, if anything, was that compared to?
MR. PORTO: John O'Keefe.
MR. LALLY: So the sample from Mr. O'Keefe?
MR. PORTO: Correct.
MR. LALLY: And, with regard to that, is that a comparative analysis that you conducted yourself?
MR. PORTO: Yes.
MR. LALLY: And what, if any, opinions or conclusions did you come to as far as the comparative analysis between the swab from the taillight from that vehicle and the profile from Mr. O'Keefe?
MR. PORTO: The DNA profile from this item is at least 510 nonillion times more likely if it originated from John O'Keefe and two unknown individuals than if it originated from three unknown, unrelated individuals. And this provides support for an inclusion.
MR. LALLY: Now, Sir, with reference to that item and that comparative analysis, you said 510 nonillion times; is that correct?
MR. PORTO: Correct.
MR. LALLY: And nonillion, just for clarification purposes, do you know how many zeros that is?
MR. PORTO: It's a one followed by 27 zeros.
MR. LALLY: And with regard to that item coming from -- or the profile containing the comparative analysis consistent with the DNA profile of Mr. O'Keefe, there are also two unknown contributors; is that correct?
MR. PORTO: Correct.
MR. LALLY: Now, with regard to that, are you familiar with that item or the profile from that item being submitted along with some other samples to an outside vendor called Bode Technology?
MR. PORTO: Correct.
MR. LALLY: Now, with reference to another item contained within that, are you familiar with an Item 3-6?
MR. PORTO: Yes.
MR. LALLY: And what is Item 3-6?
MR. PORTO: That is the root end of hair from exterior passenger side rear panel.
MR. LALLY: Now, sir, as far as hair is concerned, can you describe for the jury a little bit about sort of DNA and how that works between -- well, let me ask you this: Essentially, when it comes to a hair sample, there's typically going to be a root end and a shaft end, correct?
MR. PORTO: Correct.
MR. LALLY: And where from the DNA, as your lab is concerned, where is that -- where would you be able to test from or where would you be looking to extract a sample from in order to perform testing?
MR. PORTO: Yes. So our testing for hairs, the DNA would be coming from any tissue that might be attached to the root end of the hair.
MR. LALLY: And so you're looking for specifically sort of follicular tissue; is that correct?
MR. PORTO: Tissue that's attached to the hair, yes.
MR. LALLY: Now, as far as -- are you familiar with the terms sort of autosomal DNA versus mitochondrial DNA?
MR. PORTO: Yes, I am.
MR. LALLY: And can you explain for the jury briefly just sort of what your understanding is of each of those two terms and what, if any, differences there are between the two?
MR. PORTO: Yes. So autosomal DNA is present in the nucleus of the cell. We inherit one copy from our dad and one copy from our mom. Mitochondrial is present within the mitochondria, and that is inherited via the mother.
MR. LALLY: Now, your lab at the Massachusetts State Police Crime Laboratory, is the lab equipped or does your lab do mitochondrial DNA testing?
MR. PORTO: We are not equipped to do mitochondrial testing.
MR. LALLY: So when you say the lab is not equipped to do the testing, what exactly does that mean?
MR. PORTO: So we don't have the instruments or the facilities to do that testing, and we don't get that testing requested very often. So it's more -- it makes more sense to send it out to an approved vendor to do that testing.
MR. LALLY: And one of those approved vendors would be the Bode Technology lab in Lorton, Virginia that you were discussing previously?
MR. PORTO: Correct.
MR. LALLY: And, as far as your understanding, is that Bode Technology is equipped and does do mitochondrial DNA testing, correct?
MR. PORTO: Correct.
MR. LALLY: Now, with respect to your testing, you did some testing with regard to Item 3-6, the hair; is that correct?
MR. PORTO: Correct.
MR. LALLY: And can you explain to the jury sort of what that testing was and what, if any, opinions or conclusions you were able to draw from the testing that you were able to do in the lab?
MR. PORTO: Yes. So that testing began the same as the four-step process. I would extract the hair and then went to quantitation. After quantitation, I determined that there was no human DNA detected. So then testing was halted at that step.
MR. LALLY: And so what, if anything, was the result of that testing that you conducted with regard to the hair?
MR. PORTO: That no human DNA was detected. So STR analysis was not performed.
MR. LALLY: Now, that phraseology there as far as no human DNA detected, what does that mean?
MR. PORTO: So quantitation is looking specifically for human DNA, and we couldn't detect that with our instruments. It's not speaking to the hair, itself. It's just that we cannot detect any human DNA.
MR. LALLY: So that's not so much to say that there is no DNA on the hair. It's just that it is below the level of detection that you're qualified to report on; is that fair to say?
MR. PORTO: You're correct.
MR. LALLY: Now, with regard to the taillight sample, if I could step back to that for a second. The 510 nonillion times, what, if any, relationship does that have to sort of the overall world human population?
MR. PORTO: So the world population currently I think is about eight billion, which is an eight followed by nine zeros. And 510 nonillion has 27 -- 30 zeros in it. So it's larger.
MR. LALLY: Significantly more, correct?
MR. PORTO: Significantly larger, yes.
MR. LALLY: Now, sir, if I could turn your attention to some other items that you tested in relation to this case. Just to be clear, sir, you conducted or issued about six different DNA reports in regard to the testing that you conducted in this case; is that correct?
MR. PORTO: Correct.
MR. LALLY: So if I could direct your attention now to the six reported DNA testing, Report No. 6, that involved an item called 3-3.1; is that correct?
MR. PORTO: Correct.
MR. LALLY: And what is the description of that item?
MR. PORTO: That is a sample from apparent glass on rear bumper.
MR. LALLY: And with the same Mass. registration plate as the taillight; is that correct?
MR. PORTO: Correct.
MR. LALLY: And what, if any, conclusions or opinions were you able to draw from your analysis of testing on that particular item, please?
MR. PORTO: So at the quantitation step for this item, insufficient human DNA was detected and STR analysis was not performed.
MR. LALLY: And, again, just as far as that statement is concerned, can you explain a little bit to the jury what that means as far as what your opinions or what you're seeing in regard to insufficient human DNA detected and STR analysis not performed?
MR. PORTO: Yes. So at the quantitation step, we do have a cutoff, a certain value where if we detect human DNA, that's below this cutoff, we've validated that it's not going to -- most likely not going to provide a profile that could be used. So we halt testing at that step.
MR. LALLY: Now, sir, if I could direct your attention to your fifth report that you issued in this case, DNA Testing Report No. 5. And does that sort of contain the totality of the items that you analyzed in this particular case?
MR. PORTO: It does.
MR. LALLY: Now, sir, if I can direct your attention to an item labeled as No. 3-2.1.1. And what is the description for that particular item, sir?
MR. PORTO: That is a sample from exterior of broken drinking glass.
MR. LALLY: And with reference -- were you able to generate a DNA profile from the swab or the sampling from that item?
MR. PORTO: Yes.
MR. LALLY: And what, if any, comparison were you able to do in regard to the DNA profile of Mr. O'Keefe?
MR. PORTO: Yes. So the sample was interpreted as a mixture of three contributors and the DNA profile for this item is at least 530 nonillion times more likely if it originated from John O'Keefe and two unknown individuals than if it originated from three unknown, unrelated individuals, and this provides support for an inclusion.
MR. LALLY: And so the sample from the exterior or the broken drinking glass is at least 530 nonillion times more likely that it originated from John O'Keefe, correct?
MR. PORTO: Correct.
MR. LALLY: Now, if I could direct your attention to Item 7-1.2.1. What is the description associated with that item, sir?
MR. PORTO: That is a sample from Stain "A" on upper right leg of jeans.
MR. LALLY: And were you able to generate a DNA profile from the sample from what's labeled as Stain "A" on the upper right leg of Mr. O'Keefe's jeans?
MR. PORTO: I was.
MR. LALLY: What, if any, comparison were you able to do with relation to that profile from that sample to Mr. O'Keefe's DNA profile?
MR. PORTO: Yes. So the DNA profile was interpreted as a mixture of three contributors, including male DNA. Contributor 1 was suitable for comparison. And, due to limited information, Contributors 2 and 3 were not Suitable for comparisons. And the DNA profile from this item is at least 570 nonillion times more likely if it originated from John O'Keefe and two unknown individuals than if it originated from three unknown individuals. And this provides support for an inclusion.
MR. LALLY: And so when you say as far as due to limited information Contributors 2 and 3 are not suitable for comparison, what does that mean?
MR. PORTO: So that just means that those contributors were very low and that any comparisons that would be done to them would not be reliable based on our protocols and validations.
MR. LALLY: And so from your comparative analysis, you came to the opinion or conclusion that the sample from the upper right leg of Mr. O'Keefe's jeans was 570 nonillion times more likely that it originated from Mr. O'Keefe, correct?
MR. PORTO: Could you rephrase that?
MR. LALLY: Sure. With respect to your comparative analysis of the profile from the sample from Stain "A" on the upper right leg of Mr. O'Keefe's jeans, your opinion is that it was at least 570 nonillion times more likely that it originated from John O'Keefe, correct?
MS. LITTLE: Objection.
JUDGE CANNONE: Sustained.
BY MR. LALLY:
MR. LALLY: What was your conclusion as it came to Item 7-1.2.1?
MR. PORTO: So the DNA profile from this item is at least 570 nonillion times more likely if it originated from John O'Keefe and two unknown individuals than if it originated from three unknown, unrelated individuals, and this provides support for an inclusion.
MR. LALLY: Sir, let me break from this for a second, and I just want to ask you a little bit about transfer DNA. Are you familiar with that term?
MR. PORTO: Yes.
MR. LALLY: And can you explain to the jury what you understand that term to mean?
MR. PORTO: So transfer DNA just means DNA that sort of transfers based on just some activity that could happen. Like if somebody touches a water bottle, they might transfer some DNA onto that water bottle.
MR. LALLY: Now, from the fact that DNA is on something or on an item and it matches a profile from an individual, is there anything from that that you can opine or conclude as to how that DNA was deposited or when?
MR. PORTO: No, I cannot.
MR. LALLY: Now, with reference to factors that may cause a degradation of a DNA sample or a touch DNA sample that's left, what, if any, are some of the factors that may affect that as far as causing degradation of a sample or causing an inability for you to be able to generate a DNA profile from --
MR. PORTO: Some factors include being exposed to heat for a long time and ultraviolet rays from the sun as well as just time, it might eventually lead to some degradation.
MR. LALLY: Now, as far as items that are outside, you indicated that being hot or warm temps might have some effect on it. What, if any, impact would cold temperatures have on it?
MR. PORTO: So we store our DNA extracts in a cold room. So cold temperatures could be very good to help preserve any DNA that's on there.
MR. LALLY: Now, if I could turn your attention back to your Report No. 5 and ask you with reference to Item 7-1.3.1. What is the description for that item, sir?
MR. PORTO: That is a sample from Stain "B" on upper right leg of jeans.
MR. LALLY: Again, those would be the jeans of Mr. O'Keefe; is that right?
MR. PORTO: Correct.
MR. LALLY: And you were able to generate a DNA profile from that sample, as well?
MR. PORTO: Correct.
MR. LALLY: And what, if any, comparison were you able to do between the profile from that DNA on the upper right leg of Mr. O'Keefe's jeans and Mr. O'Keefe's DNA?
MR. PORTO: So the DNA profile was interpreted as a mixture of three contributors including male DNA. And the DNA profile from this item is at least 660 nonillion more times if it originated from John O'Keefe and two unknown individuals than if it originated from three unknown, unrelated individuals. And this provides support for inclusion.
MR. LALLY: Now, next, if I could turn your attention to Item 7-1.4.1. And what is that item or sample from?
MR. PORTO: That is a sample from Stain "C" on upper right leg of jeans.
MR. LALLY: And those jeans would be Mr. O'Keefe's jeans, as well?
MR. PORTO: Correct.
MR. LALLY: And were you able to then generate a DNA profile from that sample?
MR. PORTO: Yes.
MR. LALLY: And what, if any, comparison or what, if any, conclusions or opinions did you draw from a comparative analysis of the DNA profile from that sample from the upper right leg of Mr. O'Keefe's jeans and Mr. O'Keefe's DNA profile?
MR. PORTO: So the DNA profile is a mixture of at least two contributors including male DNA. Contributor 1 is suitable for comparison and due to limited information, Contributor 2 is not suitable for comparison. The DNA profile was interpreted as a mixture of two contributors. And the DNA profile of this item is at least 830 nonillion times more likely if it originated from John O'Keefe and an unknown individual than if it originated from two unknown, unrelated individuals. And this provides support for an inclusion.
MR. LALLY: Now, sir, if I could turn your attention to Item 7-1.5.1. Where did that come from?
MR. PORTO: That is a sample from Stain "D" on upper right leg of jeans.
MR. LALLY: And, again, were you able to generate a DNA profile for that sample?
MR. PORTO: Yes.
MR. LALLY: What, if anything, were your findings in relation to a comparative analysis between that and the -- the DNA profile from that sample and the DNA profile of Mr. O'Keefe?
MR. PORTO: The DNA profile was interpreted as a mixture of two contributors including male DNA. And the DNA profile for this item is at least 670 nonillion times more likely if it originated from John O'Keefe and two unknown individuals than if it originated from three unknown, unrelated individuals. And this provides support for an inclusion.
MR. LALLY: Sir, if I could turn your attention to Item 7-1.6.1. And what is the description for that item?
MR. PORTO: That is sample from Stain "E" on upper right leg of jeans.
MR. LALLY: And were you able to also generate DNA profile from that sample?
MR. PORTO: Yes.
MR. LALLY: Did you then conduct a comparative analysis between the DNA profile from that sample and the DNA profile from Mr. O'Keefe?
MR. PORTO: Yes.
MR. LALLY: And what, if any, conclusions or opinions or findings did you have in regard to that comparative analysis?
MR. PORTO: Yes. So the DNA profile was interpreted as a mixture of two contributors including male DNA. Contributor 1 is suitable for comparison; and, due to limited information, Contributor 2 was not suitable for comparison. The DNA profile from this item is at least one decillion times more likely if it originated from John O'Keefe and an unknown individual than if it originated from two unknown, unrelated individuals. And this provides support for an inclusion.
MR. LALLY: Now, as far as that decillion, again, similar to the nonillion, how many zeros are we talking about?
MR. PORTO: That's a one followed by 33 zeros.
MR. LALLY: Now, if I could turn your attention to Item 7-1.7.1, are you familiar with that item, sir?
MR. PORTO: Yes.
MR. LALLY: And what is the description for that item?
MR. PORTO: That is sample from unstained areas of exterior of jeans.
MR. LALLY: And were you able to generate a DNA profile from that sample?
MR. PORTO: Yes.
MR. LALLY: Similarly, were you then able to do a comparative analysis between the DNA profile from that sample and the DNA profile of Mr. O'Keefe?
MR. PORTO: Yes.
MR. LALLY: And what, if anything, were your findings in regard to that comparative analysis?
MR. PORTO: Yes. The DNA profile was interpreted as a mixture of four contributors including male DNA. The DNA profile from this item is at least 53 septillion times more likely if it originated from John O'Keefe and three unknown individuals than if it originated from four unknown, unrelated individuals. This provides support for an inclusion.
MR. LALLY: And, similarly, sir, with regard to that number septillion, how many zeros is that?
MR. PORTO: That is a one followed by 24 zeros.
MR. LALLY: I am going to ask some questions about a number of different items from 7-17. These are samples taken from an orange tee shirt as well as a gray long- sleeve shirt; is that correct?
MR. PORTO: Correct.
MR. LALLY: And, if you could, essentially you did testing on those items as well as some fingernail clippings belonging to Mr. O'Keefe?
MR. PORTO: Correct.
MR. LALLY: Or samples from the fingernail clippings, I should say?
MR. PORTO: Yes.
MR. LALLY: Now, with regard to those items, swabbings taken from the stains from various areas of the orange tee shirt -- and, just in general, where were those areas on the tee shirt, the orange tee shirt to start with, that the swabbings were taken from?
MR. PORTO: The top front left of orange shirt and front bottom right of the shirt, as well, and the back left shoulder of the orange shirt.
MR. LALLY: Now, with regard to the gray long-sleeve shirt, where are the areas on the shirt where those swabbings were taken from?
MR. PORTO: The right sleeve, the center front, the back left, the back right and the back bottom of right.
MR. LALLY: And were you able to generate DNA profiles from each of those items?
MR. PORTO: I was.
MR. LALLY: And were you then able to do a comparative analysis between the DNA profile from each of those items with relation to the DNA profile from Mr. O'Keefe?
MR. PORTO: I was.
MR. LALLY: And what, if any, conclusions were you able to draw from that comparative analysis?
MR. PORTO: So the male DNA profile was interpreted as originating from a single contributor, and the DNA profile from these items is at least 490 octillion times more likely if it originated from John O'Keefe than if it originated from an unknown, unrelated individual. This provides support for an inclusion.
MR. LALLY: And, as far as that number is concerned, octillion, how many zeros is in an octillion?
MR. PORTO: That's a one followed by 27 zeros.
MR. LALLY: And, with regard to each of those items from the orange tee shirt, the gray long-sleeve tee shirt and the fingernail clippings, they were taken from both the right and left hands of Mr. O'Keefe; is that correct?
MR. PORTO: Correct.
MR. LALLY: And so that's 490 followed by 27 zeros. That would be from a single contributor, correct?
MR. PORTO: Correct.
MR. LALLY: Now, sir, if I could turn your attention to Item 7-18.4.1. Are you familiar with that item?
MR. PORTO: Yes.
MR. LALLY: And what is the description associated with that item?
MR. PORTO: Sample from Stain "C" on top front gray long- sleeve shirt.
MR. LALLY: And were you able to generate a DNA profile with respect to that item?
MR. PORTO: Yes.
MR. LALLY: And were you able to do that and doa comparative analysis between that DNA profile from that item and the DNA profile of Mr. O'Keefe?
MR. PORTO: Yes, I was.
MR. LALLY: And what, if any, conclusions did you come to with regard to that?
MR. PORTO: The male DNA profile was interpreted as originating from a single contributor. The DNA profile from this item is at least 58 octillion times more likely if it originated from John O'Keefe than if it originated from an unknown, unrelated individual. This provides support for an inclusion.
MR. LALLY: And, with regard to that stain from the gray long-sleeve tee shirt, again, that was determined by you through your testing to be DNA from a single contributor matching John O'Keefe, correct?
MR. PORTO: It was determined to be from a single contributor. Yes.
MR. LALLY: Now, sir, if I could turn your attention to Item 7-18.14.1. Are you familiar with that item?
MR. PORTO: Yes.
MR. LALLY: And what is the description associated with that item, sir?
MR. PORTO: Sample from Stain "L" on back bottom right of gray long-sleeve shirt.
MR. LALLY: And were you able to generate a DNA profile from that, the sample from that item, as well?
MR. PORTO: Yes, I was.
MR. LALLY: And were you then able to do a comparative analysis between the sample -- profile from that sample versus the profile from Mr. O'Keefe?
MR. PORTO: Yes, I was.
MR. LALLY: And what, if anything, were your findings in relation to that?
MR. PORTO: So the DNA profile was interpreted as a mixture of two contributors including male DNA. The DNA profile from this item is at least one decillion times more likely if it originated from John O'Keefe and an unknown individual than if it originated from two unknown, unrelated individuals. This provides support for an inclusion.
MR. LALLY: And, sir, I am going to ask you or draw your attention to Item 7-18.17.1. Are you familiar with that item?
MR. PORTO: Yes.
MR. LALLY: And what is the description associated with the sample from that item?
MR. PORTO: Sample from unseen areas of exterior of gray long-sleeve shirt.
MR. LALLY: And were you able to also generate a DNA profile from that sample?
MR. PORTO: Yes.
MR. LALLY: And were you able to then do a comparative analysis between the profile from that sample and the profile from Mr. O'Keefe?
MR. PORTO: I was.
MR. LALLY: And what, if any, conclusions did you come to with reference to that comparative analysis?
MR. PORTO: The DNA profile was interpreted as a mixture of two contributors including male DNA. Contributor 1 is suitable for comparison and, due to limited information, Contributor 2 was not suitable for comparison. The DNA profile from this item is at least 960 nonillion times more likely if it originated from John O'Keefe and an unknown individual than if it originated from two unknown, unrelated individuals. This provides support for an inclusion.
MR. LALLY: Now, sir, there are some other items from which you conducted testing but were not able to generate a profile from, correct?
MR. PORTO: Correct.
MR. LALLY: And, specifically, I'm going to ask about Item 7-3.1. That is a sample from the right instep of Mr. O'Keefe's sneaker; is that correct?
MR. PORTO: Could you repeat that number again, please?
MR. LALLY: Sure. Sir, if I could direct your attention to within your DNA Report No. 5. I'm talking about Item No. 9.
MR. PORTO: Yes.
MR. LALLY: And so, sir, with reference to that, what, if any -- there's an indication as far as the mixture not being suitable for comparison due to the quality of the profile, correct?
MR. PORTO: Correct. It was a mixture of at least five contributors.
MR. LALLY: And so from that as far as not suitable for comparison, can you explain to the jury what that means?
MR. PORTO: Yes. So during our validations, we only validated mixtures up to four contributors because we determined that once you get more than four, at least five contributors into a mixture, it becomes too complex to be able to make any reliable comparisons to that mixture.
MR. LALLY: Now, Sir, if I could direct you to Item No. 11 or Item No. 7-18.3.1 within your report.
MR. PORTO: Yes.
MR. LALLY: And that is a stain from the gray long-sleeve tee shirt, top front?
MR. PORTO: Yes.
MR. LALLY: Now, that is indicated as not suitable for comparison due to the quality of the profile, correct?
MR. PORTO: Correct.
MR. LALLY: And can you explain to the jury what that means as far as not being suitable due to the quality of the profile?
MR. PORTO: Yes. So during our -- bringing it back to our third step of amplification where we are making millions of copies of specific locations, sometimes there might not be a lot of DNA there and that amplification step might not amplify all the information that could be present and the profile that's generated won't have all the information to be able to reliably make a comparison. So the information that we are able to look at is very limited. So we just do not do any comparisons because they would not be reliable.
MR. LALLY: And was that the same as far as not suitable for comparison due to the quality of the profile? Was that the same for two other areas that you tested in regard to the front of or sample from the front of the gray long-sleeve shirt and a sample from the back left sleeve of the gray long-sleeve shirt?
MR. PORTO: Yes.
MR. LALLY: Your Honor, may I have a moment?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sir, let me ask you just briefly, are you familiar with the term called STRmix?
MR. PORTO: Yes.
MR. LALLY: And can you explain to the jury what that is and how that is involved or how it's implicated within your testing?
MR. PORTO: Yes. So STRmix is a tool that we use to basically break down complex mixtures into its individual contributors and in a way that would best describe that mixture. And, once it does that, it will then do comparisons and calculate a ratio, which is a --
MR. LALLY: And how does that relate to the testing that you did in this case?
MR. PORTO: I used STRmix on all the samples I had comparisons done to them.
MR. LALLY: Thank you, sir. I have no further questions, Your Honor.
JUDGE CANNONE: Ms. Little?
MR. LALLY: No questions. Thank you.
JUDGE CANNONE: All right, Mr. Porto. You are all set.
(Whereupon, the witness is excused.)
JUDGE CANNONE: May I see counsel at sidebar, please?
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: All right. So that's it for today?
MR. LALLY: Yes.
JUDGE CANNONE: Okay. So I'd like to give them some idea on where we stand. I think even if I just say that the estimate, when I told them last week that they would get this case by the last week of this month, we are still on target for that, right?
MR. LALLY: I would say so, yes.
JUDGE CANNONE: All right. So I want to excuse them and then I want to talk to you about a couple of things at sidebar. So you can go back.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: So we are actually going to send you home today because we are on schedule. It is beautiful out. Rather than start with the witness that we'll start with tomorrow morning, it makes sense -- I'm going to talk to the lawyers for a few minutes. So we will send you home. Do not discuss this case with anyone. And, just so I'm clear, that means each other. That means any aspect of this case, any observations, anything at all. Do not do any independent research or investigation into this case. If you happen to see, hear or read anything about this case, please disregard it. We expect a full day tomorrow. So we'll see you tomorrow.
(Whereupon, the jury is escorted from the courtroom and excused for the day.)
JUDGE CANNONE: All right. I'll see counsel at sidebar about a couple of issues.
(Whereupon, there was a sidebar conference as follows:)
MR. YANNETTI: A question. You mentioned to the jury that you expect a full day tomorrow. Does that mean that you don't anticipate doing a voir dire?
JUDGE CANNONE: I'd rather tell them a full day and let them go, rather than have some people think -- because I couldn't remember whether I told them we were definitely going a full day Friday or maybe stopping for this voir dire. So I just figured that -- and then they won't be unhappy to leave.
JUDGE CANNONE: All right. Anything else?
MR. LALLY: No, Your Honor.
JUDGE CANNONE: And Jimmy tells me you will have your grand jury minutes for me -- I mean your jury instructions for me tomorrow?
MR. JACKSON: Yes. We've sent notice to get those underway and get them done by tomorrow. So yes. Our anticipation is that we will have a packet for you tomorrow.
MR. LALLY: We will, yes.
MR. YANNETTI: Can I ask on that score, Your Honor, are you -- there are model instructions with regard -- you don't want reasonable doubt and all the other stuff? It's just --
JUDGE CANNONE: Whatever you want to give me. Whatever you want to give me. I can read the reasonable doubt instruction.
MR. YANNETTI: I think you've done it before. Yeah.
JUDGE CANNONE: So whatever you want to give me and let me know at some point. We'll have the formal charge conference, but I think your instructions will give me some idea of whether you want lesser includeds.
MR. JACKSON: Okay.
MR. LALLY: Okay.
MR. YANNETTI: That sounds good. Thank you.
JUDGE CANNONE: All right. Thank you. We'll see you tomorrow.
MR. LALLY: Thank you, Your Honor.
(Whereupon, the sidebar conference concluded and the Court adjourned.)