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Case number 16-3125, United States of America v. Robert Kelsey, also known as Juwan-Paywan-Kelsey Appellate.

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Ms.

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Davis for the appellate, Ms.

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Bates for the appellate.

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Good morning, Ms.

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Bates.

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Good morning, Mary Davis for the appellate, Mr. Kelsey, and I would like to apologize for being late.

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I got stuck in the line downstairs.

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So the issue I'd like to address this morning is whether it was error to allow a witness to testify as an expert witness without being qualified as an expert witness.

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It is very clear that the only reason

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that the government did not want to qualify Ms.

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Mills as an expert was simply because they did not want any cross-examination occurring regarding the shutdown of the DC lab.

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However, Ms.

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Mills' testimony made it very clear that she was in fact testifying as an expert.

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She was asked by the government, and this is

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on page 586 of the Joint Appendix.

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She was asked, when you completed your analysis, where did you send those results to?

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And she replied, once we issued our report, I believe at a later date, the data was sent to a private lab.

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The questioning went on and said, what format was the data in?

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She then, Ms.

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Mills replied, it would have been raw data, I believe, for them to reinterpret.

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And on the same page, that's page 587 of the Joint Appendix, she was asked whether the raw data is an electrophorogram.

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And the answer was, once they analyze it, it is what you would call an electrophorogram.

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And that she used her electrophorogram in her testimony before the jury.

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Now Mr. Ambrosino was called into the courtroom and explained that Ms.

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Mills was not intended to be an expert witness, but merely a fact witness.

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But Mr. Ambrosino also admitted that he did not hear the testimony.

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He did not know what Ms.

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Mills was testifying to.

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But he said that if she was testifying regarding say mixture interpretation,

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or if she was interpreting or analyzing something, that she in fact would be testifying as an expert.

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Judge Walton asked Ms.

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Mills, well, did your testimony before the jury involve mixture interpretation?

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And she said that it did.

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Again, Mr. Ambrosino was not there to hear this testimony.

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And further, Mr. Ambrosino had mentioned that what Ms.

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Mills did was merely putting in something and the machine would spit out something.

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And that's all that was involved.

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But the judge asked... Am I correct that the jury knows nothing about this Ambrosino?

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That's correct.

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Okay.

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The jury... No, this happened all out of... The jury was not in the courtroom at the time.

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And at the end of all of the direct and cross-examination, Judge Walton asked whether her testimony was, in fact,

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essentially expert testimony, and I think the answer was yes.

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So the prejudice that Mr. Kelsey claims is that to the extent that there was testimony from Ms.

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Mills about the comparison or analyzing or looking at the mixture,

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that council should have been able to cross examine her about the dysfunction of the lab.

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Exactly.

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And council was not so permitted.

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Is there any other claim of prejudice apart from the lack of an opportunity to cross-examine?

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No, it's completely the lack of cross-examination, which had a huge impact on the defense.

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So as I understand what the government is saying, they intended to put Miss Mills on to describe her what they termed bench work and as a factual sort of

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chain of process or to be able to say, we had the sample, I received the swabs, I did XYZ bench work, and then what I produced was sent to the lab for analysis.

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That's how they want to use her as a factory, is that right?

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That's what they wanted to do.

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And your position, as I understand it, is that she

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actually did a little more than that.

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And when she was testifying, she was sort of saying more than she was needed for from the government's perspective in terms of

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additional analysis, which is something that she had experience with and in other cases when it's done.

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So she would refer to, for example, reinterpretation when really all they wanted her for was identifying it as a mixed sample so it could be said.

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Exactly.

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And she did more.

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I think one is even

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makes it more problemsome, is before she actually testified regarding this case in particular, the government took her through all of her background and her training.

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Which seemed expert-like to potentially.

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And they in fact asked her, have you been qualified as an expert?

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And I think she said it like 35 times or so.

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So all of that was before the jury.

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So, and the jury, I don't think they really comprehend the difference between a judge saying, okay, we find you qualified.

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Now, in terms of what she, when she characterizes her having done some initial interpretation,

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Bode Lab never is aware of anything about that, results of that, or any analysis.

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They get the sample she's sent on.

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I'm not really clear what Bode Lab did.

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At one point, Ms.

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Mills said that they sent her the raw data.

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But at another point, it sounded like that she sent the report that she did some time later.

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The testimony wasn't really clear what was sent.

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Again, the government's trying to say it was only raw data that was spit out of the machine that was sent, but it's not really clear if that was the case.

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But you had said that the claim of prejudice is a claim about not being able to cross-examine.

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Exactly, exactly.

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It's not that there is in fact some error in what Ms.

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Mills did.

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I don't know.

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I mean, I don't know where the cross-examination would have gone if trial counsel had been allowed to question Ms.

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Mills regarding the closure of the lab and what she did and how any of this was impacted.

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So it's not really clear where it would have gone had the cross-examination.

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Judge Walden in the sidebar was very, very intent, very careful about A, wanting to restrict Ms.

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Mills' testimony to fact testimony.

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And if it was so restricted, he was quite clear in saying that there was no reason to cross-examine about the difficulties of the lab.

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Yes, he did say that.

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But at the same time, I believe when Judge Walton was making that determination, that was when he had listened to Mr. Ambrosino say what he had to say.

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And the testimony of the witness.

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And so the question, I guess the question for you, to put it in the light that I think the prosecution is pressing here, is if everybody was on the same page, that the witness could testify as a fact witness, and if her testimony was only as a fact witness,

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that there was no room for the cross-examination, that this lab that had had these troubles with interpretation wasn't doing the interpretation.

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And what happened then is that there are a few things that Ms.

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Mills said that sound more like, oh, and there's also some interpretation going on here.

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And it's your position that those suggestions open the door for cross-examination and should have allowed the cross-examination.

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Exactly.

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even though there is no evidence that at the time the lab was actually in this period of extra scrutiny and dysfunction.

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At the time that Ms.

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Mills was doing this bench work, this wasn't the time that the lab was in collapse.

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It was.

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It was.

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It was in collapse because of the problems with mixture interpretation.

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And Ms.

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Mills said that her

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testimony to the jury involved mixture interpretation.

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So that's why it was important to bring out that if her testimony did have to do with mixture interpretation and analysis, and that was the problem with the DC lab, then that would have been proper cross-examination.

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And is your position also that her testimony, that in order for it to be prejudicial to Mr. Kelsey, her testimony or her analysis, her interpretation, not just her bench work,

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Would it have to be known to both?

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Had to be known to the outside lab?

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I don't know if it had to be known to the outside lab.

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Wouldn't it in order for there to be any prejudice?

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Well, no, because if what she did was incorrect or improper,

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And that material and whatever she sent was sent on to Bode, and Bode wasn't familiar or didn't know that there was a problem with it.

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Well, it's like a domino, I mean.

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But you're saying not just what she said, but what she did might have been improper.

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Right, exactly, exactly.

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And because again, it isn't clear from her testimony if her report was sent out or just the raw data.

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And then there's some question about the electrophorogram.

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And according to Ms.

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Mills' testimony, that is not just the raw data.

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That is something else.

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And Ms.

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Mills used her, as she said, her electrophorogram in her testimony.

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and if the court has no further questions, I'll.

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All right, we'll give you a couple minutes.

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Okay, thank you very much.

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Okay, Ms.

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Bates?

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Good morning, may it please the court, Lauren Bates on behalf of the Appellate of the United States.

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Here, Ms.

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Mills was called to testify as a fact witness, and to the extent that there is any confusion today about whether she in fact testified solely as a fact witness, I think that stems from

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in misreading or misunderstanding of the record by appellant, what Ms.

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Mills testified to was her bench work, was what she participated in in terms of the physical handling and processing of the DNA evidence, the swabs collected from the sex kit and from the victim.

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And the last step in that bench work process is both Hope Parker, the DNA expert from Bode,

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and AUSA Ambrosino made clear in his proffer, the last step in that bench work process is after you've extracted the DNA and amplified it and put it into the machine, which is the genetic analyzer, that the genetic analyzer provides raw data, which then is visualized by opening it with a software program that Ms.

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Mill refers to as a software interpretation or software analysis program.

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That's gene mapper, and that is where... Are you saying it in quotes as if it's not an analysis or interpretation?

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No, but I think I'm using, and I apologize, the hand gestures I think are because what Helen is pointing to in the record is Ms.

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Mills' testimony where she uses the words or terms analyze or analysis or interpret, and what

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What she is testifying to is the work that is done by the computer, by a machine, by the software program.

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Ms.

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Bates, I think you say that any confusion stems from a misunderstanding of what she did, but George Walton, who was there and very alert,

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to what the issues were, I think accurately being quite careful on behalf of both sides to walk the line.

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He said, this doesn't feel like lay stuff to me.

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Why aren't you qualifying her as an expert?

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And I guess she did discuss mixture interpretations and mixture analysis.

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And so the question is, why didn't you just simplify her lives and qualify her as an expert

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limited to the identification of this as an example for sending on to the lab.

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And it seems to me that it would still have been feasible for you to draw the line you wanted to draw about she's not doing the interpretation, we're relying on someone else's, and then it would be a clean record about her not having sent an interpretation which

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As Ms.

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Davis points out, if that were her interpretation, then it wouldn't open the door and be a domino.

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And I have a couple of points that I'd like to respond to there.

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First, when the government called Ms.

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Mills, the government was not calling her to ask her questions about what work she did that she would refer to as mixture interpretation.

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Most of that testimony was elicited by appellant on cross-examination

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were in the voir dire that was conducted outside of the presence of the jury.

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And so that was not the purpose for which she was called as a fact witness in this case.

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And there was a good reason, aside from not wanting to open the door to

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issues about cross-examination about what the issue identified at the DC Department of Forensic Sciences was and that's because up to the point of the end of her bench work where she gets the raw data which when you open that data using the software program displays as the electrophorogram, the graph with the peaks and the alleles, up until that point that was testimony that was relevant and you know basically a chain of custody foundational facts for

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Ms.

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Parker's expert testimony.

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What Shana Mills did after that was irrelevant to the issues in the trial, because what she did in the lab after that was she looked at the electrophorogram and made a determination about whether there was a major male contributor.

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For the purpose of uploading a major male contributor, the unknown suspect,

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profile into the CODIS database and the government was not seeking to have her testify to the fact that she uploaded a profile into CODIS and that there was a CODIS match because that would have been highly prejudicial to appellant and was irrelevant to the

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issue as it was presented to the jury at trial, which was that Bodie had done the match and had done that, you know, comparison.

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And so any confusion here is because during the voir dire and cross-examination, what's being elicited from Ms.

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Mills is testimony that she wasn't called to testify to under act.

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And that is, you know, this separate question of whether she

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looked at the electrophoreogram and made judgments about being able to determine whether there was a major male contributor.

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So first I would say that it's not error that the judge denied the motion to strike for testimony because most of that came afterwards and was elicited by appellant or was elicited outside the presence of the jury.

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So I guess just to simplify my question, even someone whose only role is as the sort of chain of process witness

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Where the process is as specialized as this one, wouldn't it have been wise to qualify her as an expert simply for the purpose of being able to locate for the jury?

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I know what this sample is.

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I know what this machine does.

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And when I got a report, I could verify that the machine had done the familiar thing, that it wasn't printing out someone's Christmas list.

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I mean, could you qualify as an expert?

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Perhaps, but I think there's good reason not to, which is that when someone is presented to the jury as an expert witness, their testimony comes with the extra gravitas that an expert comes with.

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And it is not traditional that the bench work, technical components of the DNA process are presented through an expert.

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It's not traditional that they are?

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No, there were three other witnesses in this case, as an example.

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Mr. Curtis, Mr. Feiter from D.C., Department of Forensic Sciences, and Ms.

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Cooner from Bode Laboratories, who also testified in this trial as fact witnesses about their bench work, about the roles that they played in the preparation of the samples leading up to the end of the bench work process, which is putting it into the genetic analyzer machine and getting the data out.

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None of those individuals... Weren't they part of this multi-layered

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In other words, I thought I remembered that the government was worried, not worried, but thought, well, we'll do a double check just to make sure that before we even send it to Bode,

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Is that correct?

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Is that why you had the three witnesses?

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So no, I mean, this is not completely contained within the record here, but it is very typical in forensic DNA case that you would have multiple different technicians or analysts handle things.

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For example, here, I think the record makes clear that one of the reasons was that when you do the bench work of processing a known sample, either the bottle swab

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at Bode from the suspect, Mr. Kelsey, appellant, or at DFS, the buckleswap from the victim, you would have a different technician handle the bench work process of those than the person who is doing the bench work on the evidence sample, the sex kit sample, and these are just for internal controls and taint contamination reasons.

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So it's very typical to have

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multiple people who testify as to the bench work here and one of the reasons is that we didn't have the known sample from appellant until much later in the process because at the time Ms.

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Mills is doing her bench work, there's no suspect because it's not until after the quotas and other things that we develop that suspect.

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And so I think one of them point is that to the extent that there were issues that were identified at

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DCDFS by a panel of experts and a review was conducted.

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Those issues were limited to what unfortunately I think in this record is also referred to as mixture interpretation, but this is where the words become important in a technical field.

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They were limited to the process of selecting which loci, so which alleles in a mixture had robust enough DNA data, which loci you were going to select in a mixture, and to apply the statistical analysis, which for a mixture interpretation would be the combined probability of inclusion statistic.

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So are you saying it's more observation than interpretation?

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Well, so the issue that was there was really with the statistical analysis, which Ms.

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Mills could never have been doing because she testified repeatedly that at the time that DCDFS was handling the DNA evidence in this case, they did not have a suspect profile.

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So they couldn't have been doing the step that was where the review at DCDFS had implicated some questions about the statistical analysis involving mixtures.

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And I think I had misremembered.

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You agree with opposing counsel that this was during a time when there were issues in the DC lab

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in terms of doing that kind of analysis.

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So I think the timing is a little unclear because the trial happened much later in time than when Ms.

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Mills was actually handling and producing that the lab was producing the raw data.

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So my reading of this record is that the time at which the bench work was conducted at DCDFS and when that raw data was produced,

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predates the time when there were issues at the lab, but that by the time you're at trial and this testimony is occurring, the United States Attorney's Office had been routinely making disclosures about what was subsequently identified as an issue with the mixture interpretation statistical analysis and so had, in this case I believe, made

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disclosure that although no statistics were done here by DCDFS, you know, it was our standard policy to make disclosures in cases where there was DNA evidence handled by DCDFS.

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And Ms.

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Davis wasn't clear to her whether any

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interpretations that Ms.

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Mills might have done were sent to Bode.

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And it's my understanding of the record that as Mr. Danversino was explaining, any report that was forwarded to the lab would have been scrubbed of any interpretation or comparison information.

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Is that correct?

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That is correct, and I can point to a couple places in the record.

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that would show that.

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And that's both AOC and Brasino's proffers and explanations to the court about how when you were sending something out to Bode, the entire purpose was to kind of put up this wall where you aren't giving them any

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of the real interpretation that is done by the individual as opposed to the machine.

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But also Hope Parker, the DNA expert from Vodi, testified that the laboratory work was performed by DCDFS, but that she analyzed it, made, interpreted it, and made the comparisons.

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page 379 of the deferred appendix and Ms.

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Mills made clear that it was the raw data that was sent to Bode for them to pull into their interpretation software or analysis software

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and that's at page 587 of the deferred appendix, which I think reinforces this point that what Ms.

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Mills was testifying to was the bench work up to that last step of getting that data which is displayed from the computer program as the electrophorogram.

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And when she was handling these exhibits and trying to match them up, the sole purpose was a chain of custody, a foundational witness,

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who was saying that we generated data at DCDFS and that data is what was sent to Bode.

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And how do I know that what Hope Parker got and received is the same data?

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It simply was looking at what had appeared on the computer screen, the printout of the electrophorogram at DCDFS and the way that Bode had

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taken that was just to write it in a table format, an allele table format, and saying, you know, these appear to be the same.

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It was not that she was making any

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expert opinions or comparisons about whose DNA this was, whether it matched a pellet's DNA, and she certainly didn't testify to any conclusions about the statistics or how significant of a match it was, which was all done by Ms.

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Parker, who was qualified as an expert, and testified without much cross on these points either.

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So to the extent that there was any error

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which the government maintains they're not, it was harmless in this case because all of the real expert work was testified to and was subject to cross by Ms.

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Parker.

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And had appellant tried to open the door to this issue about what else Ms.

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Mills did, the government would have been able to respond to that by calling these experts who, as Mr. Ambrosino proffered and the court accepted,

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said there were no issues identified in the bench work that was done by DCDFS, which was what was relied on.

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Before you sit down, Ms.

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Davis didn't argue this, but I want to ask you about, you both agreed that he was not in custody, Mr. Kelsey, when he was questioned.

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But it was either extremely fortuitous, or he told his lawyer ahead of time that he was going to the police station because his lawyer called, and the detective

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We just have his side of the conversation, but she apparently said to him, I want you to stop questioning him.

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And the detective said, I'll let him decide that.

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Now, I'll get to my question in a minute, but the lawyer then did what any lawyer would do, short of going down there, called back and said to her client, I want you to leave the station now.

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My question to you is, what is your advice to police that once a lawyer says, I want you to stop questioning him, that instead of listening to that lawyer, the detective says, I'll let the client decide that?

[00:27:01] Speaker 03:
So I think in this case, there certainly was no advice given because there was no involvement

[00:27:07] Speaker 03:
a prosecutor at this stage during which this voluntary interview was happening.

[00:27:13] Speaker 03:
I'm asking as a prophylactic question.

[00:27:16] Speaker 03:
I think the answer to that question is different.

[00:27:19] Speaker 03:
If and when the police were to come to a prosecutor, a lawyer, I think at that point there are ethical constraints that apply only to the lawyers here about contact with represented parties.

[00:27:32] Speaker 03:
And so the advice is different once you involve a lawyer.

[00:27:38] Speaker 03:
So looking at this from the perspective of the detective or investigator here, I think that he is within the legal rights of saying there is no standard that a lawyer can invoke on behalf of their client some right to remain silent or otherwise that that is a right for the client to invoke and that if the individual is there in a non-custodial interview,

[00:28:08] Speaker 03:
that that is permissible.

[00:28:11] Speaker 03:
I apologize.

[00:28:15] Speaker 03:
I think the question is difficult because if and when a detective were to come to us and say, I am sitting here with someone who informs me

[00:28:22] Speaker 03:
that they have a lawyer and are represented, our advice would be different, but that is because at that point we have ethical constraints.

[00:28:30] Speaker 04:
So you have an obligation as a lawyer, an ethical obligation, not to talk to a representative party without counsel present.

[00:28:36] Speaker 04:
And not to ask someone on our behalf to do that.

[00:28:39] Speaker 03:
Exactly.

[00:28:39] Speaker 03:
So I could not advise.

[00:28:40] Speaker 04:
Whereas you're saying that the investigators have no such obligation, even when they know someone's represented, and that counsel for that person believes it's not an

[00:28:50] Speaker 04:
his or her client's interest to speak that it still is the independent decision of the client whether to do that.

[00:28:57] Speaker 03:
That is, yes, and the appellant has certainly not cited any case law to the contrary, and I'm not aware of any.

[00:29:03] Speaker 03:
And from reading the video and the phone conversation, I think what was happening there is the lawyer was trying to advise her client

[00:29:12] Speaker 03:
to leave or decline to answer questions, but that that is, again, a decision to be made by her client, Mr. Kelsey Appellant here, and that watching this video, it certainly didn't cross the line into a situation where it was not voluntary, as the investigator made clear repeatedly that he was free to leave, and if he wished to leave, he could walk out the open door.

[00:29:35] Speaker 03:
Mr. Kelsey, I think, was there instead, as the district court found.

[00:29:39] Speaker 03:
because he wanted to put out his alternate story.

[00:29:55] Speaker 03:
to one of the two at that time, investigators in the room, and picks up the line of conversation that they had been in.

[00:30:02] Speaker 03:
So he certainly displays no interest in leaving.

[00:30:05] Speaker 03:
And at one time during the earlier phone call, references, you know, I'm here to help.

[00:30:09] Speaker 03:
She wants me to leave.

[00:30:10] Speaker 03:
But I'm here.

[00:30:12] Speaker 03:
I know what I'm doing.

[00:30:13] Speaker 03:
Thank you.

[00:30:15] Speaker 03:
Unless there are any further questions, we ask that the judgment be affirmed.

[00:30:18] Speaker 03:
All right.

[00:30:21] Speaker 03:
Ms.

[00:30:21] Speaker 02:
Bates, why don't you take two minutes?

[00:30:23] Speaker 02:
Oh, thank you.

[00:30:27] Speaker 01:
Uh, briefly in response to, uh, your question, Judge Henderson regarding the statement, I believe it was very clear to the, uh, the, the officer, the, uh, investigator that Mr. Kelsey was in fact represented by council and council advised the investigator that

[00:30:46] Speaker 01:
she did not want Mr. Kelsey answering any more questions.

[00:30:50] Speaker 01:
Now, it may well be that Mr. Kelsey thought he was going to get himself out of the hole or whatever, but the point is that, number one, the investigator knew from counsel that Mr. Kelsey was represented, and number two, that she did not want him to be questioned any further.

[00:31:04] Speaker 01:
And in addition, Mr. Kelsey is not

[00:31:10] Speaker 01:
I don't know how to say this, but Mr. Kelsey is not a highly intelligent person.

[00:31:14] Speaker 01:
I think he's perhaps borderline intellectually disabled.

[00:31:19] Speaker 01:
And so I think, again, this isn't something that was really part of the record at that point in time, but I don't think that there can be a bright line rule that the prosecutor has to be involved and tell the investigator to not do any further questioning.

[00:31:38] Speaker 01:
Getting back to the other argument regarding the DNA, at the very end, the judge asked us in front of the jury, just one question, when you say you've got a mixture and you've made a determination as to whether it's coming from two different sources, is it a machine or are you making that determination?

[00:32:00] Speaker 01:
And Ms.

[00:32:00] Speaker 01:
Mills testified in front of the jury, I am doing that interpretation.

[00:32:06] Speaker 01:
And I think that what is so important here is that the government said, it's not a problem.

[00:32:11] Speaker 01:
We can qualify her.

[00:32:13] Speaker 01:
We'll go ahead and qualify her.

[00:32:14] Speaker 01:
And then as soon as Judge Walton says, OK, I'm going to allow this cross-examination, then there's this whole two-hour hiatus where Mr. Ambrosino comes in.

[00:32:22] Speaker 01:
There's argument back and forth.

[00:32:24] Speaker 01:
It is clear the only reason that this person was not qualified as an expert was because the government wanted to foreclose the cross-examination.

[00:32:32] Speaker 01:
But at the same time, Ms.

[00:32:33] Speaker 01:
Mills testified as to certain facts that were, in fact, expert testimony, and not just simply factual testimony.

[00:32:44] Speaker 01:
And since the government has the burden to prove that the error did not have an effect on the jury, I don't think they carried that burden, and we believe that the conviction should be reversed.

[00:32:54] Speaker 01:
All right.

[00:32:55] Speaker 01:
Ms.

[00:32:55] Speaker 02:
Davis, you were appointed to represent your client, and you've done your usual excellent job.

[00:33:00] Speaker 02:
Thank you.