The unanimous ruling by a three-judge panel of the 4th District Court of Appeal concluded that the makers of the computer program STRmix, a private company that developed the program and sells it to crime labs around the nation, are not part of the prosecution team.
Because of that, the San Diego County District Attorney’s Office can’t be forced to hand over the company’s material, which reveals how the program works and the software it runs on. The decision reverses a ruling in March by Superior Court Judge Charles Rogers, who concluded that the company’s product — called STRmix — provided crucial evidence linking defendant Florencio Jose Dominguez to the killing, and thus prosecutors should hand it over.
The dispute centered on an emerging area of contention in criminal courts, where the use of more sophisticated forensic tools that rely on computer algorithms is becoming more common. Many of these tools are developed by private companies who guard the source code and other techniques that drive the tools.
That can conflict with a defendant’s due process rights and right to confront and examine evidence used against him or her, civil liberties advocates have argued. The Dominguez case presented such a conflict and drew attention from national groups like the American Civil Liberties Union, which urged the appeals court to uphold Rogers’s ruling.
The appeals court concluded it was a stretch to call the company that developed STRmix — Environmental Science and Research, a joint venture between the governments of New Zealand and the state of South Australia — a member of the prosecution team. Among other reasons, it noted that the company did not do anything unique or specific to Dominguez’s case, but simply sold its product and provided some technical support and product updates to the San Diego Police Department crime lab, which then used it.
Under state laws that dictate discovery — the legal process under which each side is required to exchange information — as well as U.S. Supreme Court rulings that say what evidence prosecutors have to provide to defendants, that work by ESR is not enough to qualify them as part of the prosecution team, Associate Justice William Dato wrote.
That was the key question in the case that forced the issue. Matthew Speredelozzi, the lawyer for Dominguez, had tried to get access to the source code, software, user manual for the program and validation studies — which would show how well it works — so his hired expert could examine the source code to determine how the program is working.
But the company said Speredelozzi would have to sign a restrictive nondisclosure agreement first, claiming the code was a privileged trade secret it could protect. The lawyer contended such a condition violated his client's constitutional rights, and filed a motion to get the District Attorney's Office to turn over the code as part of the pre-trial discovery.
Prosecutors argued they could not force the company to do so. On Wednesday spokesman Steve Walker welcomed the ruling.
“We’re pleased that the court agreed with the position we have held all along that the District Attorney’s Office has no control over the property of a private company and we cannot distribute a company’s intellectual property without limitation,” he said in a statement.
ESR said in court papers that developing STRmix took 27,600 hours of work, and it has been validated in 33 scientific publications. The company has said it allows defense lawyers to examine the code but the non-disclosure agreement is needed to protect the company’s product.
Speredelozzi said Wednesday he was disappointed with the ruling, which he said highlights a growing problem for defendants. “The current discovery rules just aren’t adequate for defendants any more, with the increasing use of this kind of technology in the criminal justice system,” he said.
Much of that technology — which includes things like facial recognition software and risk assessment tools that determine how dangerous someone might be — are developed by private companies and not technically in possession of prosecution agencies, making them out of reach for defendants to examine.
“For a defendant who wants to make meaningful challenges to this technology, there are a lot of barriers to them doing it,” he said. He said it was too soon to know what the next steps would be, which could include asking the state Supreme Court to review the ruling.
Dominguez was serving a life sentence for the murder of Moises Lopez in a San Diego park in 2008. After two trials, he was convicted in 2011, largely on the strength of testing that found his DNA in a bloody glove found at the scene — one that contained DNA from more than one person.
Such mixture DNA samples have been controversial among forensic scientists, because it is difficult to clearly identify one person as a contributor especially when there are low-levels of genetic material. In 2010, a national forensic science body recommended changing how such samples are analyzed to a more conservative interpretation that would classify some evidence — like Dominguez's — as inconclusive.
In 2017, Dominguez's murder conviction was thrown out by a San Diego judge. In preparing for a new trial, prosecutors reanalyzed the evidence — this time using the STRmix tool.
The technique uses computer software that runs millions of calculations and produces a "likelihood ratio,” which essentially says a match between a defendant’s DNA and the evidence is a certain number of times more likely than a coincidental match. The program does those complex statistical and analytical computations quicker and with greater accuracy than humans can.
That analysis again concluded Dominguez's DNA was part of the bloody glove mixture.
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