The EDTA Case That May be Even Crazier Than the Steven Avery/”Making a Murderer” Case

This is my third in a series of posts about EDTA testing in the Steven Avery/“Making a Murderer” case (prior posts here and here). As I noted in my last post,

In 2007, another California man sought to introduce evidence of EDTA. His is a fascinating case, deserving of its own podcast or Netflix series.

This post deals with the first of three opinions in that case.

In Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007),

[Kevin] Cooper was convicted of the first-degree murders of Franklyn Douglas Ryen, Peggy Ryen, his wife, Jessica Ryen, their 10–year old daughter, and Christopher Hughes, an 11–year old neighborhood friend of Joshua Ryen, the Ryen’s 8–year old son who was brutally assaulted but lived. Following his conviction, Cooper was sentenced to death.*

Soon after the murders, 

a bloody tan t-shirt [was] found beside the road leading away from the house where the murders took place….Initial testing of stains on the t-shirt showed that they contained blood consistent with one of the victims and not consistent with Cooper. Cooper presented evidence of the t-shirt as part of his defense at trial….

Subsequently,

Long after trial, at Cooper’s insistence, the State performed a DNA test on some of the blood on the t-shirt. Cooper maintained that the test would prove his innocence. Instead, the blood tested positive for Cooper’s DNA. Cooper maintained (and continues to maintain) that his blood was planted on the t-shirt. If the blood was planted, the only possible source was blood taken from Cooper by law enforcement authorities. A vial of blood was taken from Cooper by San Bernardino County Sheriff’s Department (SBCSD) personnel on August 1, 1983, two days after his arrest. That blood contained an added preservative called EDTA. 

At this point, Cooper’s federal habeas petition had already been denied, but the Ninth Circuit granted Cooper’s successor petition, which sought, inter alia, remand to the district court for “testing of the T-shirt for ethylene-diamine tetra-acedic acid (“EDTA”) blood preservative.”** According to Cooper, if there were EDTA in the blood on the t-shirt, it would prove that the police planted the evidence and  that all of the evidence in the case was unreliable.

After the Ninth Circuit granted the petition,

the district court developed the EDTA protocol over a three-month period and after extensive input from counsel and the experts. Upon the parties’ recommendation, the court also adopted a “control” method of testing in which the amount of EDTA detected in a stain would be compared to the amounts of EDTA found in various control swatches and from other non-stained portions of the T-shirt. Pursuant to the protocol, the stain was to be extracted by Dr. DeForest and shipped to Dr. Ballard and Dr. Suizdak for double-blind EDTA testing. After the test results were submitted, the parties proposed a protocol for DNA testing to determine whether the main stain fabric cut-out from the EDTA testing contained Cooper’s blood. From the results of that testing, Cooper could not be excluded as a contributor of the DNA extracted from the cut-out, while Peggy Ryen, Jessica Ryen, Josh Ryen, Doug Ryen and Chris Hughes were each eliminated as a possible contributor.

This, however, greatly oversimplifies matters. The Ninth Circuit is describing the results of the EDTA testing by Dr. Ballard, who found that while there was EDTA in the cut-out, “the EDTA level in the stain with blood was actually lower than that of most of the control areas.” 

Meanwhile, Dr. Siuzdak “withdrew his results after discovering EDTA contamination in his laboratory.” In response, Cooper unsuccessfully asked for access to Dr. Siuzdak’s data, with the Ninth Circuit affirming this denial of access because

His EDTA test results did not reflect the expected results from the PBS buffer reagent blank control and so were unreliable. Contamination was not remarkable, as laboratories use EDTA in testing. As Suizdak’s results were unreliable, they could not be used to prove Cooper’s tampering claim.

Cooper also included Dr. Siuzdak’s retraction as part of his claim that the court’s EDTA testing protocol was flawed in five respects:

(1) while the court facially complied with the en banc order allowing only Cooper to select a stain from the T-shirt for limited anti-clotting agent testing, it refused to allow presumptive blood testing to determine whether the stain tested was even a blood stain; (2) it did not allow his experts, Dr. Peter DeForest and Dr. Kevin Ballard, to view the T-shirt as a first step in designing the protocol; (3) it accepted at face value Dr. Gary Siuzdak’s retraction of his EDTA testing results; (4) it denied testing for anti-clotting agent migration; and (5) it denied testing for other anti-clotting agents such as citric acid that were used to preserve Cooper’s blood.

In addressing these arguments, the Ninth Circuit 

note[d] at the outset that it is immaterial whether the EDTA tests were flawed or not because the district court had discretion to conclude that EDTA testing does not meet Daubert standards. “In Daubert, the Court set out four factors to be reviewed when applying Rule 702: (1) whether the theory or technique can be or has been tested, (2) whether the theory or technique has been subjected to peer review, (3) whether the error rate is known and standards exist controlling the operation of the technique, and (4) whether the theory or technique has gained general acceptance.”…There is no evidence in the record that application of mass spectrometry to forensic analysis of blood evidence to determine EDTA levels can be or has been tested. The technique has been offered to courts only twice before; in one case, there was no challenge to the EDTA evidence*** and in the other, Dr. Ballard, as well as the EDTA testing that he was to perform, were rejected by the court.**** EDTA testing has not been subjected to peer review and there has been no discussion of forensic EDTA testing in scientific literature since a 1997 article that headlines the need for a better analytical method. In short, for reasons explained in detail by the district court,…EDTA testing has not gained general acceptance in the scientific community.

The court then addressed Cooper’s five concerns with the EDTA testing protocol. Here is its discussion of Cooper’s second and third concerns:

Cooper fails to explain why additional inspection of the T-shirt was necessary, for an appropriate stain and controls were selected after 6G, the stain that was initially selected, proved unavailable because it had already been consumed. Dr. DeForest did not participate in this selection because he had removed himself, but Cellmark—a laboratory that Cooper agreed was highly qualified—replaced him to conduct the extraction. No basis appears in the record to question selection of the stain that was used, and Cooper points to none on appeal. Dr. Maddox of Cellmark and the state’s expert, Steven Myers, selected an area between two stains designated “6J” and “6K,” each of which had earlier been found to be blood containing primarily Cooper’s DNA.

Nor does any reason appear why Dr. Suizdak’s representations should not have been accepted at face value; the testing he was to undertake was double-blind, he is a well respected scientist, and he had no interest in the outcome.

There is much more to Cooper’s claims and the court’s opinion, which you can read in its entirety here. There are also many more details about the EDTA testing in the case, which the court revisited a couple of years later. I’ll get to that opinion in my next post on the subject.

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*Cooper is still on death row, but, as in the Richard Glossip case, he has been hours away from execution.

**The petition also sought DNA testing of hairs found in one of the victim’s hands.

***The O.J. Simpson case.

****The case I discussed in my prior post.

-CM