Notice of Filing Declaration of Bicka Barlow

CASE NO CR 29-22-2805

2023 June 22 4:36 Anne C. Taylor, Public Defender Kootenai County Public Defender CLERK OF DISTRICT COURT p.m.

PO Box 9000 LATAH COUNTY Coeur d'Alene, Idaho 83816 BY DEPUTY
Phone: (208) 446-1700; Fax: (208) 446-1701
Bar Number: 5836 iCourt Email: pdfax@kcgov.us Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661
Phone: 208-642-3797; Fax: 208-642-3799 Assigned Attorney:
Anne C. Taylor, Public Defender, Bar Number: 5836 Jay W. Logsdon, Chief Deputy Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH

STATE OF IDAHO CASE NUMBER CR29-22-2805

Plaintiff,
NOTICE OF FILING DECLARATION OF

V. BICKA BARLOW IN SUPPORT OF

DEFENDANT'S THIRD MOTION ΤΟ

BRYAN C. KOHBERGER, COMPEL

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorney of record, Anne C.

Taylor, Public Defender, and hereby files the attached Declaration of Bicka Barlow in support of the Defendant's Third Motion to Compel.

DATED this 22 day of June, 2023.

ANNE C. TAYLOR, PUBLIC DEFENDER

ΚΟΟΤΕΝΑI COUNTY PUBLIC DEFENDER

an
BY:

ANNE TAYLOR

PUBLIC DEFENDER

ASSIGNED ATTORNEY

NOTICE OF FILING DECLARATION OF BICKA BARLOW IN

SUPPORT OF DEFENDANT'S THIRD MOTION TO COMPEL Page 1

CERTIFICATE OF DELIVERY

I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 22 day of June, 2023 addressed to:
Latah County Prosecuting Attorney -via Email: paservice@latahcountyid.gov
Elisa Massoth-via Email: legalassistant@kmrs.net
Ingrid Batey-via Email: ingrid.batey@ag.idaho.gov
Jeff Nye-via Email: jeff.nye@ag.idaho.gov Dul
NOTICE OF FILING DECLARATION OF BICKA BARLOW IN

SUPPORT OF DEFENDANT'S THIRD MOTION TO COMPEL Page 2

1 DECLARATION OF BICKA BARLOW

2 I Bicka Barlow do state and declare:
3 I am an attorney licensed to practice law in the State of California and I have been 4 5 retained to assist counsel for Bryan Kohberger in the above matter in the capacity of DNA 6 consultant.

7 I have a B.S. from the University of California, Berkeley, in Genetics, and a M.S.

8 9 from Cornell University in Developmental Genetics, with minors in Cellular Biology and 10 Plant Molecular Biology. I received my J.D. from the University of San Francisco, School 11 of Law. I began consulting on DNA cases as a law student in 1994. In 2004, I was hired 12 as the DNA attorney for the San Francisco Public Defender's Office. During my nine years 13 14 at the office, my practice was focused almost completely on DNA cases. In 2013, I left the 15 office and returned to consulting on DNA cases throughout the United States in both state 16 and federal courts and at all stages of litigation (See Attachment 1).

17 18 I have acted as DNA counsel or as a consultant on cases involving DNA evidence 19 in over 200 cases, including capital cases, in both trial and post-conviction proceedings 20 Additionally, I have been retained in three cases as a " Strickland " expert to assess the 21 22 performance of trial counsel as it related to DNA evidence. As DNA counsel I have 23 reviewed case files for DNA evidence from many labs throughout California and the 24 United States, including the California Department of Justice, SERI, Forensic Analytical, 25 Bode, Orchid Cellmark, the FBI, the St. Charles, MO, Police Department Crime Lab, 26 27 Contra Costa County Police Crime Lab, San Francisco Police Department Crime Lab 28
DECLARATION OF BICKA BARLOW 1

1 Sacramento County District Attorney Crime Lab, Oakland Police Crime Lab, Santa Clara 2 County District Attorney Crime Lab, the Arizona Department of Public Safety lab, and the 3 Phoenix Police Department Lab.

4 5 I regularly communicate with attorneys and experts who specialize in DNA 6 evidence. I also regularly train attorneys in the area of DNA evidence.

7 I was requested by counsel in this case to assist in determining the scope of DNA 8 9 discovery necessary for defending this case, including any genetic genealogy that was used.

10 Part of this assignment was to identify potential expert witness and legal issues that might 11 arise from the use of genetic genealogy in particular. Because I have been retained on other 12 cases involving genetic genealogy I am aware of the methods used and the type of material 13 14 that is and has been made available in criminal cases. In order to assist counsel in this and 15 other cases, I have reviewed a multitude of materials, including peer-reviewed articles, 16 magazine and newspaper articles and motions submitted in other cases. I have also 17 18 interviewed numerous expert witness in order to identify potential areas of interest to the 19 defense.

20 I have reviewed the material provided to the Defense in this case regarding the DNA 21 testing done as well as numerous news articles regarding this case and the government's 22 23 Motion for Protective Order, filed on June 16, 2023.

24 I am informed and believe via news reports, that in this case Mr. Kohberger was 25 initially identified as a possible suspect via a new methodology called investigative on 26 27 forensic genetic genealogy (hereinafter IGG).

28
DECLARATION OF BICKA BARLOW 2

1 2 Genealogy Testing and Database Searches 3 I am familiar with the methods used to conduct IGG searches in criminal cases. 1 4 5 have been retained in other jurisdictions on cases involving this type of search and have 6 received and reviewed reports generated by the private company that conducted both the 7 testing itself and the construction of the family tree that lead to the identification of the 8 9 defendant in those matters.

10 Based on my review of that material, I am informed and believe that the use of these 11 databases does not necessarily lead to a single individual as a potential suspect. The testing 12 conducted by the private lab is different in nature from the testing done by forensic labs.

13 14 The private labs do not generate a " profile " in the same way that forensic labs do and there 15 cannot be a direct comparison between the data obtained in this case by the Idaho State 16 Police Crime (ISP) lab and the private lab. The ISP lab had conducted what is typically 17 18 called STR based testing which results in a profile that can be uploaded to the state and 19 federal CODIS databases. IGG labs use a different technology where individual SNPs 20 (single nucleotide polymorphisms) are sequenced. The SNP and STR data cannot be 21 22 directly compared.

23 Once the IGG lab completes its testing, the SNP data is uploaded to a genetic 24 genealogy database that contains similar data from other individuals. One such database 25 is GEDMatch (GEDMatch has recently been acquired by Verogen Labs.

26 27 https://verogen.com/a-message-to-verogen-customers-about-the-gedmatch-partnership/).

28
DECLARATION OF BICKA BARLOW 3

1 I am aware of only one other website that allows law enforcement searches. Most websites 2 such as 23andMe, do not allow use of their data by law enforcement and are used by most 3 people for ancestry research.

4 5 Data is compared within that database and possible relatives are identified. The 6 determination of who is or is not a relative is subjective and based on the length of DNA 7 shared between two individuals. The comparisons in such a database do not yield an 8 9 identification of someone identical the uploaded SNP data; rather it would identify possible 10 relatives who might be in the database.

11 Once a putative relative has been identified, a family tree is created, working 12 backwards to grandparents and possible great-great-grandparents. The family tree is then 13 14 build down. The construction of these family trees is highly subjective and is based on the 15 use of public records such as marriage and birth certificates. Difficulties with tracing a 16 family tree may arise when there are events that sever a relationship, such as an out of 17 18 wedlock birth, name change, or adoption.

19 In some instances, contacting individuals for further family information such as 20 noted above. This process leads to a pool of individuals rather than one specific individual 21 22 I am also aware via news reports in the Golden State Killer case, that multiple 23 individuals are often identified and must be eliminated in order to find the potential suspect.

24 As described in the Washington Post, the technique leads to a pool of relatives not to a 25 single individual. (https://www.washingtonpost.com/local/public-safety/to-find-alleged- 26 27 golden-state-killer-investigators-first-found-his-great-great-great- 28
DECLARATION OF BICKA BARLOW 4

1 grandparents / 2018 / 04 / 30 / 3c865fe7-dfcc-4a0e-b6b2-0bec548d501f_story.html, last visited 2 6/20/2023). This same issue has come up in other cases where more than one individual 3 was identified and subject to investigation (https://abc.com/shows/the-genetic-detective 4 5 last visited 6/20/2023).

6 In the episode from The Genetic Detective show, " Who Killed Angie Dodge? " 7 (https://abc.com/shows/the-genetic-detective/episode-guide/season-01/03-who-killed- 8 9 angie-dodge, last visited 6/20/2023), at least one relative of the defendant in that case, was 10 investigated and ruled out. Further complicating the Dodge case was the fact that the 11 defendant in that case had been born after his parents divorce and adopted by his step- 12 father.

13 14 In addition, there has been a history of misuse of these IGG databases by law 15 enforcement.¹ Abuses by law enforcement of the GEDMatch resulted in users opting out 16 of the use of their DNA data by law enforcement. The abuses and protests by users led 17 18 GEDMatch to change their database so that users had to opt in for law enforcement use 19 Another database that allows law enforcement searches, FamilyTreeDNA, automatically 20 opts users into law enforcement searches. An example of other abuses of this technology 21 a Florida police officer obtained a warrant for the entire GEDMatch database despite users 22 23 24 25 26 27 1 Video history regarding law enforcement use of GEDMatch.

28 https://www.youtube.com/watch?v=FiiKfrulvcE (last vistied 6/21/23)
DECLARATION OF BICKA BARLOW 5

1 choice to opt out of law enforcement searches.2 Recently the state of Maryland passed a 2 statute regulating the use of IGG searches, requiring court approval at many stages of the 3 process.3 4 5 But [I] GG has generated concern, not just acclaim. In early 2019, FamilyTreeDNA faced criticism after the public (and site users) 6 learned that the company had secretly been working with the US 7 Federal Bureau of Investigation (FBI) for nearly a year to conduct [I] GG searches. GEDmatch similarly faced reproach after it secretly 8 permitted law enforcement to search its database to investigate a 9 crime outside the scope of the site's stated list of offenses. In response, both sites unilaterally altered their terms of service and 10 privacy policies to explicitly embrace their challenged conduct (3).

11 But even after those efforts sites have come under attack for violating their own policies, quietly changing their settings, and even failing 12 to delete material as promised.4 13 14 In some cases, both law enforcement and the genealogists that they have employed, 15 have engage in " deceptive " practices, tricking family members, surreptitiously gathering 16 genetic material from nonsupsect family members, or simply uploading an evidentiary 17 18 profile to a database that does not allow law enforcement searches 5 19 It is imperative to the defense in this case to know how Mr. Kohberger was identified 20 and who else in his family tree might have been identified as a subject of investigation.

21 22 23 24 25 2 https://www.technologyreview.com/2019/11/06/132047/a-detective-has-beengiven-access-to-private-consumer-dna-data-for-the-first-time / (last visited 6/21/23).

26 3 Ram, et al., Regulating forensic genetic genealogy, (2021) Science Vol. 373, 27 1444-1446.

4 Id.

28 5 Id.

DECLARATION OF BICKA BARLOW 6

1 While in the Dodge case, another relative was ruled out, it is unknown to the defense in 2 this case, whether every lead or possible suspect was further investigated and ruled out by 3 genetic testing. Because the family trees generated by these genealogy searches often 4 5 identify distant relatives through great or great-great grandparents, a person may be 6 completely unaware of the relatives in the genetic genealogy searches and unable to 7 conduct an independent investigation of possible third party suspects. It is not possible for 8 9 any defendant to investigate family relatives who are unknown to him and may in fact have 10 been in the area of the crime. This material clearly is Brady material in that it would 11 provide investigative leads that are otherwise unavailable to Mr. Kohberger.

12 IGG cases and similarities to CODIS (DNA database searches) 13 14 In my opinion as an attorney who specializes in DNA cases and who has seen both 15 cold hit cases and IGG cases, the IGG database search results raise the same type of 16 questions and areas of investigation that a cold hit case would.

17 18 • First, as noted above, who else was included in the pool of putative relatives in the 19 first instance in the IGG database.

20 Second, once the IGG search was completed, who in the pool of identified putative 21 22 suspects, were ruled out by further investigation. For the defense team, how many 23 24 25 26 66 A cold hit case is a case in which no suspect had been identified and a DNA 27 profile from evidence was created using standard STR based testing. This DNA profile is then uploaded to a state CODIS (convicted offender) database and the data base is searched for a 28 matching profile from an offender.

DECLARATION OF BICKA BARLOW 7

1 others were investigated and what caused law enforcement to focus on Mr.

2 Kohberger is key to possible investigation and third party suspects.

3
• Third, and in many ways, most importantly, how does the search of a large database 4 5 impact the statistical analysis of the comparison by the state lab using standard STR 6 methods? As with cold hit cases, it is now well recognized that the statical analysis 7 of a comparison of standard STR profiles is impacted by a phenomenom called 8 9 ascertainment bias.

10 In the case of cold hits, initially, courts did not allow the fact of a cold hit as well as its 11 associated statistical, the Database Match Probability (DMP), as evidence for reasons 12 similar to those presented by the government in this case (Erin Murphy, INSIDE THE CELL, 13 14 2015, at 106-119, see Attachment 2). However, it is now is now accepted that in a cold hit 15 case, the DMP is generally accepted and can be calculated by crime labs. The best 16 illustration of this can be found in U.S. v. Jenkins, 887 A.2d 1013, 1023 (D.C. Court of 17 18 App., 2005):
19 Database match probability accurately expresses the probability of 20 obtaining a cold hit from a search of a particular database. Balding- Donnelly accurately expresses the probability that the person 21 identified through the cold hit is the actual source of the DNA in light of the fact that a known quantity of potential suspects was eliminated 22 through the database search 23 24 in In re Michael Green, (Case # The government cites to a California trial court order 25 PDL202000007, El Dorado County Superior Court) case, which relies heavily on People 26 27 v. Johnson, (2006) 139 Cal. App.4th 1135, as support for the proposition that the IGG 28
DECLARATION OF BICKA BARLOW 8

1 material need not be disclosed. In its argument that the IGG search is a mere " tip " and not 2 subject to discovery by the defense. The prosecution misreads Johnson. The issue in 3 Johnson was when the government seeks to admit the fact of the cold hit, should the court 4 5 require the government to also present the DMP, described above, rather than the standard 6 RMP statistic. (Id. at 1144). In fact, in Johnson, the fact of the cold hit was admitted over 7 the defendant's objection.

8 9 In People v. Turner (2020) 10 Cal.5th 786, the California Supreme Court confirmed 10 that the DMP statistic in a case in which a defendant is identified via a cold hit is relevant 11 and admissible and that 12 there is no controversy in the relevant scientific community as to the 13 accuracy of the various formulas. In other words, the math that 14 underlies the calculations is not being questioned. Each approach to expressing significance of a cold hit DNA match accurately answers 15 the question it seeks to address. The rarity statistic accurately 16 expresses how rare a genetic profile is in a given society. Database match probability accurately expresses the probability of obtaining a 17 cold hit from a search of a particular database. Bayesian analysis 18 accurately expresses the probability that the person identified through the cold hit is the actual source of the DNA in light of the fact that a 19 known quantity of potential suspects was eliminated through the 20 database search.

21 22 7 In its Motion, the government misstates the statistical rarity of the comparison to 23 the DNA from the sheath (at pg 6) " the STR profile is at least 5.37 octillion times more likely to 24 be seen if Defendant is the source than if an unrelated individual randomly selected from the general population is the source. " This reported statistic for this comparison is a Likelihood 25 Ratio, similar to a RMP, which compares two competing hypotheses. The government's statement is extremely misleading and is essentially the " Prosecutor's Fallacy. " " The fallacy is 26 to say that [the probability] is also the probability that the DNA at the crime scene came from 27 someone other than the defendant.... It does not say that the odds that the suspect contributed the evidence are 1,000: 1. " National Research Council, THE EVALUATION OF FORENSIC DNA 28 EVIDENCE, 1996, at pg 133.

DECLARATION OF BICKA BARLOW 9

1 (Id. at 804-805).

2 3 I have spoken with a number of experts in the field who have expressed the opinion 4 that an IGG search can impact the statistical rarity of a profile in manner similar to a cold 5 hit search, meaning that the statistic that is generated by an analysis of a IGG search could 6 7 yield a relevant and admissible statistic.

8 In the case of a cold hit case, even a high RMP can yield a low DMP statistic.

9 (INSIDE THE CELL, at 116-15). For instance an RMP of 1 in 1 million can yield a DMP of 10 11 1 in 3, which means that while the profile is rare, the likelihood of getting a coincidental 12 match during the search of the database and selecting a person who matches but is not the 13 perpetrator, is high (Id. at 112). When this evidence is excluded, jurors wonder why and 14 how the defendant was identified. In one case, where the evidence of the search and the 15 16 DMP was excluded, jurors inquired of the trial court how he had been identified. (Id. at 17 117). Failing to allow the defense access to the ability to investigate and potentially present 18 evidence about the " tip " that the government intends to exclude could lead to a jury being 19 20 actively mislead by the strength of the government's evidence as it relates to the DNA on 21 the sheath.

22 The government's arguments are similar to those that were eventually discarded by 23 the court's when they recognized that the search of a database can be considered as relevant 24 25 evidence.

26 Research in the area of the impact of an IGG search on the statistical weight of a 27 DNA comparison, using standard STR DNA profiles, is ongoing. The ascertainment bias 28
DECLARATION OF BICKA BARLOW 10

1 is accounted for using CODIS and standard STR testing by use of the DMP statistic, The 2 DMP helps a jury understand the likely of a coincidental match when a database is searched 3 w