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DYLESKI MURDER TRIAL – WILL LOOSE ENDS CAUSE REASONABLE DOUBT REGARDING THE DNA EVIDENCE OR WILL FACTS ADD UP TO A CONVICTION DESPITE THEM?
by Kathryn Joanne Dixon

On August 14, 2006, Eric Collins, criminalist for the Contra Costa County Sheriff, testified about how evidence was collected at the scene of the murder of Pamela Vitale and at 1050 Hunsacker Canyon Road, the Curiel’s home, where Scott Dyleski and his mother Esther Fielding lived.

Collins described how deputy sheriffs and criminalists followed the process of evidence collection on October 20, 2005.  They located the evidence, used sterile gloves to bag and seal it, then tagged it and gave it to Eric Collins, the chief criminalist on the scene.  Whether or not Collins placed it and logged into a secure evidence locker remains an unknown.  This link in the chain of evidence was not established. However, Collins, who picked up the evidence, testified that he analyzed that evidence at the Contra Costa County criminalist lab. Presumably, it was stored there.  Collins also described how he attempted to detect DNA on the evidence by taking swabs of some of the evidence, cutting samples of some evidence and subjecting other evidence to fluorescent light examination.

Eric Collins testified that he arrived at 1050 Hunsacker after his participation in the arrest of Scott Dyleski in Walnut Creek.  At the Curiel home he found a black duffel bag on the porch, with an airline tag reading “Dyleski, Scott”.  He was told that reserve sheriff’s deputy Rick Kovar had collected the bag from an abandoned van on the Curiel's property.  The integrity of the chain of evidence was destroyed when Kovar left the bag evidence unattended on the porch of the Curiel home.

On August 2, 2006 Rick Kovar testified that he removed the duffel bag from an abandoned 1986 Toyota van registered to Scott Dyleski's mother, Esther Fielding.  That van was parked at the time on the property at 1050 Hunsacker Road.  Kovar showed the jury a ski mask, a black coat, black long sleeve shirt and one black glove he said he found inside the bag.

Proper evidence collection procedure requires that the entire van be processed and does not allow the piecemeal removal of evidence.  In this instance Kovar presumably extracted certain items from the van perhaps with his bare hands and placed the evidence on the porch.

On August 10, 2006, Donald Finley, laboratory aide for the Contra Costa Sheriff’s department described the procedure he used when he processed what was left of the van’s contents.  The vehicle processing was done in the Sheriff's Concord center.  He began by taking overall photographs and he noted the vehicles license number and its general condition both inside and outside.  He took notes.  Using sterile gloves he picked up evidence, performed presumptive blood tests using sterile swabs.  He then packaged the evidence and the swabs and sealed the individual packages.

This exacting procedure was non-existent during Kovar’s search of the van.  Kovar's search of the van took place while the other law enforcement offices were “freezing” the scene without a search warrant.  Deputy District Attorney Harold Jewett, now trying the murder case, was present at 1050 Hunsacker during the “freeze”.  It was not until later that night that a warrant would be obtained based on probable cause.  The probable cause was information supplied by Robin Croen, Dyleski friend and partner in a credit card scheme, who had been given immunity from prosecution to testify against Dyleski.

Who is Rick R. Kovar? Why was he allowed to break the chain of evidence when he collected the material from the van?

The Contra Costa County Sheriff’s website states:

The members of the Sheriff's Reserve Program are citizen-volunteers who give their time to increase the safety and security of their community. The members of the group are professionals, in both their full-time and their part-time career with the Office of the Sheriff.

Reserve Deputy Sheriff's are expected to work a minimum of twenty (20) hours per month. These hours consist of one mandatory meeting and sixteen (16) hours of duty.

The reserve sheriff deputies are volunteers, unpaid. They receive training from the Contra Costa Sheriff’s department as they advance through various levels.

Kovar, 39, is listed on public records as having resided in Walnut Creek.  Does he have a job-for-pay when not showing up at murder scenes to contaminate evidence?  Does he have any connections to any witnesses in the Dyleski case?

Public defender Ellen Leonida did not cross-examine volunteer Kovar to establish his training or background and/or to determine his possible connections to anyone involved in the Dyleski case.  She did not delve into how his conduct affected the evidence that he had collected. She did not elicit testimony as to how long this duffel bag was on the porch.  The haphazard manner in which Kovar collected crucial evidence stands out as a major error in the prosecution's case.  But does it constitute reasonable doubt.  The defense counsel apparently ignored the error and the prosecution, if they were force to acknowledge the mistake would probably argue it resulted in “No harm. No foul.”?

Criminalist Eric Collins testified that numerous swabs of the crime scene were taken.  Fingerprints were obtained.  It was stated that there were no fingerprints belonging to Scott Dyleski found at the murder scene.  “Glove prints” were obtained and allegedly matched the texture of the black glove found in the bag.

Four areas inside the Vitale/Horowitz residence were tested for blood. In those four areas all the blood matched Vitale’s DNA sample. A swab of blood from Vitales’s foot was taken. This swab, labeled 3-10, was taken to the crime lab for analysis. Two coffee mugs found in the kitchen sink had Vitale's blood on them and DNA matching her husband Horowitz's DNA profile.  Dyleski's DNA profiled was not detected on the mugs. There was no mention of testing blood in the shower area, although blood in the shower was widely reported soon after the murder.

Criminalist Collins testified that he performed tests for blood on the contents of the duffel bag.  Using a diagram showing bag, he pointed out all of the places where presumptive blood was found.  Those areas were the handle of the bag, the zipper pull and one area on the bottom of the bag.

The presumptive test for blood occurs after a visual examination and documentation of the evidence.  Suspicious stains are tested by applying a chemical reagent.  On August 10, 2006 Donald Finley, a Contra Costa lab aide testified that he tested the abandoned van for stains.  He applied de-ionized water to the stains with a Q tip and swabbed it.  He then used to chemicals on the swab. If it changed color, it tested presumptively for blood.

Forensic literature reveals that chemical reagents such as Phenolthalein and O-Tolidne are frequently used as catalytic color tests for blood screening.  Heme, located in the hemoglobin component of blood is revealed by these tests.  However, “false positives” can occur.

The blue ski mask was subjected to fluorescent tests and infrared enhancement.  Six areas of the mask were sampled.

Collins testified he wiped the entire length of the sleeves on the long black T-shirt found in the duffel bag.  The right sleeve cuff tested presumptively negative for blood.  The right chest area had a stain, presumptively negative for blood.  The right and left cuffs tested presumptively positive for blood. The back of the left sleeve tested presumptively positive. The sleeves and torso areas front and back were also wiped.

The long black coat, sometimes referred to during the trial as a "trench coat" or "rain coat", tested negative for any biological samples.

Collins testified about the shoes that Dyleski took from his room late Sunday, the day after the murder, and packed into a black and red duffel bag that he gave to his girlfriend Jena Reddy.  On Friday, October 21, 2005, Reddy and her mother visited Esther Fielding at her sister’s home in Bolinas and gave her these shoes.  Eventually Fielding turned the shoes over to the police.

Criminalist Eric Collins described these as black slip-on Land’s End shoes.  The shoes had a suede-like upper section and non-porous toes. Collins collected numerous samples from both shoes and found presumptively positive blood samples on the right shoe.  On the left shoe he obtained sterile cut-outs and sealed them in packages.  He obtained a sample from inside the rim of the right shoe.  He noted tread patterns in the bottom of the shoe.  He obtained swabs from the right and left soles of the shoes.

On cross examination, defense attorney Ellen Leonida asked if all of Collins' tests for blood were presumptive.  He admitted they were and admitted that both vegetable juice and/or rust are some items that can test presumptive for blood.  He stated most of the areas he tested had observable reddish tints.  He testified he did not do a confirmatory test to detect if the samples were in fact blood.  Why wouldn't a criminalist perform a test that would confirm the existence of blood in a major high-profile homicide case?  This question, however, was not asked by Leonida.

Leonida's cross-examination revealed this loose end in the laboratory testing. The specialists at the Contra Costa laboratory did not conduct confirmatory tests on samples to determine if they were in fact blood.  The other fluids subject to a confirmatory test could have been semen, saliva, urine, vomit or fecal material.  Identification of the fluids can corroborate information developed during an investigation.  So when David Stockwell, a Senior Criminalist with the Contra Costa County Sheriff's office, did his DNA analysis of the samples, he merely assumed they were blood.  He did not identify the nature of the material at all, simply referring to it as a "DNA” sample.

It is very important during the DNA testing in the Dyleski murder trial to determine if the DNA contained in the samples is from blood or saliva. Why? Dyleski did have scrapes and lacerations and an injury on his nose that was bleeding "drops” of blood on Saturday morning, the alleged time of the murder.  So if Dyleski’s blood was found in the blood sample obtained from Vitale’s foot, or in the samples obtained from the objects in the duffel bag or those found in the backpack, it could have been blood he shed at the scene of the crime.  If, on the other hand, Dyleski’s saliva, rather than blood were found in the blood sample from Vitale’s foot, an issue of whether it was planted is raised.

It is very difficult to plant blood because first it would be necessary to obtain the blood. No source of Dyleski’s blood, other than that occurring on the date of the crime, was found according to the testimony introduced so far.  However, Dyleski’s saliva is, in comparison, abundant.  It can be found on glasses, kitchen utensils or on envelopes, for example.  In short, it can be obtained by anyone with access to Dyleski or access to items Dyleski used daily.  The saliva could then be hypothetically planted on the victim’s foot or on other items of evidence.

However, the sample obtained from Pamela Vitale's foot was obtained and presumably secured.  Although no testimony has been introduced to explain how it was secured and by whom or exactly when.  Therefore, placing Dyleski’s saliva on a secured sample from the victim's foot would be difficult if not impossible.  If however, the DNA found on the foot was saliva and not blood, it could have been spit or sneezed at the scene ending up on the victim's foot. If so, the presence of saliva indicates only that it was shed.  The time it was shed has not been established.

Finally, in regard to items found in the duffel bag or in the backpack, if DNA is obtained from Dyleski’s saliva, rather than from his blood, the evidence is considered “background”.  In other words, he might have at one time worn the item.  But if the DNA discovered was established to be Dyleski's blood then he apparently shed some blood and it could have been shed during the beating of Pamela Vitale.

It is disturbing that the jury and the public will be left with merely presumptive blood tests and no confirmatory tests regarding blood and/or saliva.  The prosecution is now requiring the jury to guess about the source of the DNA found by law enforcement.  On the other hand, although defense counsel Leonida pointed out the presumptive nature of the tests and that they were not confirmatory, she did not introduce any expert testimony to emphasize that failure to rule in or rule out blood or saliva was damaging or fatal to the prosecution's case, thus raising reasonable doubt.  It is a defense attorney's job to defend their client to the very best of their ability and, in this instance, Leonida abandoned her responsibility to do so.

During direct examination, Eric Collins testified that on October 17, 2005 while attending the autopsy, he collected numerous light hairs from the back torso of Vitale’s body and packaged these.  Here is should be noted that Daniel Horowitz has dark brown hair, and Pamela Vitale had black hair and her husband Daniel Horowitz has dark brown hair.

On cross-examination, Collins testified that the hairs found on the back of the Vitale’s torso were blonde in color, and found at the junction where the T-shirt and skirt met, in the midsection of her back, and that the numerous blonde hairs were “loosely hanging on”.

He collected these by placing them in an envelope.

Collins testified that when he photographed Dyleski following his arrest, his hair was black. He had no remarkable lacerations or bruises. The connective tissue in his mouth, which can tear during a violent struggle, was intact. His injuries were superficial in nature.

On re-direct, DDA Jewett elicited testimony that it was not unusual to find stray hair at the scene of a crime.

On re-re cross Leona asked Collins if these hairs were sent to the lab for analysis.  He responded “No”.  Again it is very clear that the laboratory performed tests that were very selective by choice and made no attempts to identify third-party DNA, unidentified hair, and/or third party fingerprints.  Why?  Could it be possible that some other perpetrator in this horrible killing is being protected?

A big loose end in the evidence was revealed -- blonde hair on the back of Pamela’s torso. The "H" or cross was found carved into her back. Did someone at the crime scene, while carving this symbol, shed blonde hair?  It was not tested by any lab to run any DNA found in it through the FBI Codex to ascertain if it belonged to any known criminal.  Hair roots are necessary for DNA testing.  Did these hairs have roots?  If there were no roots, mitochondrial DNA testing could have been used.

Again defense attorney Leonida failed her client by not asking why the murder scene investigation ignored this blonde hair evidence.  She did not ask exactly how many hairs were found.  They were described as “numerous”.  So far, she has not produced any expert to explain why this blonde hair is an essential part of the investigation and why it is crucial that the hair be tested.

DDA Hal Jewett’s contention that finding stray hair at the scene of a crime is not unusual is a lame excuse for the irresponsibility of the lab to properly test these strange hairs.  Why?  The location of this blonde hair was crucial – on the victims back, where the H or cross symbol was also carved.  Who shed this hair? In a case where the prosecution emphasizes DNA samples, the failure to test this sample, is not only inexplicable, it is shocking!

On August 15, 2006, David C. Stockwell, the senior criminalist in the Contra Costa County Sheriff’s laboratory testified that he obtained items collected by criminalist Collins.  He obtained a buccal sample obtained from Scott Dyleski after his arrest and he had a DNA profile from Pamela Vitale.

Stockwell testified that he knew that there was male DNA in the sample collected from the bottom of Vitale’s foot, sample  3-10.  He found this sample included mostly Vitale’s blood.  Please note that he did not indicate whether this male DNA was blood or saliva or any other biological matter. Stockwell found male DNA in the sample.  He stated that this testing did not allow him to do a full DNA profile of the male DNA.  He explained that “If a mixture is twenty times in excess of the other person in the sample, the second person’s DNA exists, but a profile cannot be obtained.”  However, when Stockwell tested the male DNA he obtained a “partial profile”.  He could not see all loci in the male sample.  There was a sharing of common traits where the major contributor had some of the same alleles as the minor contributor, thus the major contributor masked the minor contributor.  Thus, he could not complete a test as to all loci for all genetic traits.  However, he stated that he had obtained a partial male profile of Dyleski in the sample.

DDA Jewett asked, to the extent Vitale and Dyleski share some of the same alleles, how many individuals in the population have those traits? Jewett was referring to the traits found in the male sample. The answer was:

1 in 81,000 Africans

1 in 43,000 Caucasians

1 in 23,000 Hispanics

At the preliminary hearing in February 2006, Stockwell was more precise about his analysis of the partial profile.  At that time he testified that of four markers in sample 3-10, he found Dyleski could be a contributor.  There was nothing to exclude him.  But could Dyleski be included as a minor contributor in sample 3-10?  At that time he testified that at loci 13 in sample 3-10, Stockwell found 10 distinct genetic markers which were foreign to Pamela Vitale's sample.  However, Dyleski shared all 10 of these markers.  Therefore, Stockwell stated that the statistical probability of Dyleski being a contributor to sample 3-10 was as stated in the paragraph above, above.

Also at the February preliminary hearing, Stockwell hedged about the results of this partial profile analysis.  He testified that there was masking - the amount of DNA from Pamela was great and that of any foreign minor contributors was small.  In sample 3-10 there was not a marker at all 13 sites.  Therefore, Stockwell said that he could only make an assumption that Dyleski was the one and only minor contributor to sample 3-10.  He recommended that a portion of the sample 3-10 DNA be independently tested. Finally, he testified he could not submit the profile of the foreign material in 3-10 to the FBI codex because, as his written note on page 36 stated, "Samples entered into Codex = none. Insufficient profile." The FBI Codex is the combined DNA index system for local state and federal law enforcement. Therefore, Stockwell developed the statistic "1 in 43,000" Caucasians in regard to Dyleski's DNA being a contributor to the blood on Vitale's right foot, based on an "insufficient profile."

At the trial, Stockwell testified that he sent sample 3-10 to the Serological Research Institute for Yfiler (PSTR) testing of the Y chromosome only.  Stockwell did not test the foreign material in 3-10 to determine its nature - blood, saliva or epithelial because the amount of material was so small. 

On cross-examination of Stockwell's test of the foot blood sample, Leonida focused on specific alleles’ in the sample as showing stutter and saturation.  She asked Stockwell if he had testified there was any saturation.  At the preliminary hearing in February 2006, he denied there was saturation.  At trial Stockwell acknowledged this and said that he was not referring to his bench notes at the time he made that statement.  At this point in the testimony, the jurors seemed perplexed.  Did the existence of stutter or saturation make Stockwell’s test on the male sample unreliable?

On re-direct examination, Jewett elicited testimony that Stockwell did not use alleles which showed saturation or stutter in doing his analysis. He ruled them out completely.  Once again the issue could be raised, “No harm, no foul?”  Although Leonida established that issues of saturation and stutter occurred, their effects on the ultimate conclusion of the test were not shown.  Presumably a DNA expert could show this. Why then has not such an expert been introduced to testify on Dyleski's behalf.

Leonida also elicited testimony on cross-examination that the first kit Stockwell used to test the blood sample from the foot was contaminated.  He explained that he when he discovered this problem he rejected this kit and the results obtained from it.  He then used another kit which was "expired”.  But he said that he tested the expired kit to confirm it was not contaminated. No explanation was elicited or volunteered to explain what impact the use of an expired kit would have on the test results.

On August 16, Gary Harmor of Serological Research Institute testified that he received sample 3-10 and Dyleski’s DNA swab from Stockwell.  He testified that he initially received a sample from Stockwell which was already extracted and prepared. He measured the quantification of this sample and found a problem. He e-mailed Stockwell who then explained a problem with the first kit. Stockwell then provided Harmor with a portion of the sample which had not run through the contaminated kit and was free of contamination.

Harmor then used this sample to amplify 17 different YSTR markers.  All l7 sites in the blood sample were the same as those of Dyleski. Harmor used the data base supplied by PE Biosystems, Inc. in Foster City, California.  This data base includes the YSTR profiles of 3,561 males, including 985 African Americans, 330 Asians, 1,276 Caucasians and those of other races.

Harmor concluded that Dyleski was not found in this data base.  Thus, Harmor did not give a statistical analysis of Dyleski’s YSTR DNA as compared to any population.  By stating 17 of 17 markers matched, Harmor established that the Y-profile in the blood stain on the foot was consistent with the suspect's profile.  However, establishing this consistency does not establish the frequency of finding Dyleski's profile in the data base or in any population.   What is the frequency of finding this profile in the Caucasian male population even though Dyleski profile is not in the data base?  Harmor failed to establish this frequency.

When DDA Hal Jewett re-opened David Stockwell's testimony, Stockwell testified he did a confidence interval regarding low frequencies in the testing of Dyleski’s male DNA profile as it pertained to the blood sample from Vitale's foot.  Stockwell testified that a confidence interval is a statistic for a range of frequencies never observed in a data set.  He stated that Dyleski’s YSTR profile did not appear in the 3,561 profiles in the PE Biosystems data base.  Therefore Stockwell did a conservative calculation using 95% for each value, and found that the frequency of occurrence of Dyleski’s DNA as being existent, but not observed in the PE Biosystems data base, was conservatively 1 in 1,189. Stockwell did not state how this applied to the Caucasian population as compared to the population as a whole including other races.

On cross-examination, defense counsel Leonida obtained testimony from Harmor that PSTR testing “can’t say specifically that the DNA came from a person. It can  the person “could be the source of the DNA.”  Certain types of markers in one race are more common than another. 

Contrary to press reports that Harmor found a complete match of the male DNA in the blood sample from Vitale's foot to Dyleski's sample, the fact is that 1 in 1,189 persons have the male DNA found in the blood swabbed from Pamela Vitale’s foot.  Stockwell’s analysis that 1 in 43,000 Caucasians have the genetic profile of Dyleski regarding this sample is based on a “partial profile” and an admittedly “insufficient profile”.  Stockwell thought so little of this partial and insufficient profile affected by masking, that he turned over the analysis to Harmor who used a presumably more refined test called the YSTR test.  Although 17 of 17 of Dyleski’s YSTR markers matched those in the YSTR profile in the blood sample, it is also a fact that in the human population, 1 out of 1,189 human beings has the same 17 out of 17 markers.

David Stockwell also testified about the other items found in the duffel bag and backpack that he had tested.

Stockwell tested the mask and obtained a DNA profile from samples obtained from six areas on the mask. Four areas, numbers 1, 3, 4, sand 5 match Pamela Vitale’s DNA profile. All four of the blood stains matched Pamela Vitale only. Statistics that the blood in the sample was Vitale's were:

1in 62 quadrillion Africans (A quadrillion is 1 million multiplied by 1 billion)

1 in 13 quadrillion Caucasians

1 in 14 quadrillion Hispanics

Site number 2 was the area where the mouth would have been under the mask. This area did not test presumptively for blood Stockwell tested it for background, to see if the person wearing the mask transferred his DNA to it. Stockwell found that there was single source of DNA - Dyleski. The statistics were:

1 in 1.8 quadrillion Africans

1 in 780 trillion Caucasians

1 in 1.6 quadrillion Hispanics

Area 6 was a sample from the upper left eye opening in the mask. The DNA was degraded or fragmented. This could be caused by moisture, bacteria, enzymes, or even sunlight. He amplified this degraded sample and found a larger lock in a trace level amount.

There was a mixture of Pamela Vitale and Dyleski’s DNA in this sample. There was no confirmatory test that Dyleski’s DNA in this sample was blood or saliva or some other biological material.

The statistics that the DNA in the area 6 sample was Dyleski’s were:

1 in 150 Asians

1 in 59 Caucasians

1 in 79 Asians.

In the preliminary hearing in February, 2006, Stockwell testified that the area around the eye opening of the ski mask contained mixture of the DNA containing three additional alleles that were not those of Vitale or Dyleski. Thus, the DNA of at least one and possibly three individuals who were not Scott Dyleski or Pamela Vitale was found at the opening. 

Next Stockwell testified the he obtained samples from five areas of the long sleeve shirt found in the duffel bag. Three of these five samples provided insufficient DNA for testing. Of the remaining two samples, one showed “inhibition”, that something affected the enzyme and he could not type it. The fifth sample in area three of the shirt, near the center of the shirt, provided sufficient DNA. That sample was a single source, only Dyleski’s DNA. The statistics that the DNA in the sample were Dyleski’s follow:

1 in 1.8 quadrillion Africans

1 in 780 trillion Caucasians

1 in 1.6 quadrillion Hispanics

There was no confirmatory tests performed to determine if this sample was blood or whether it was background saliva or some other biological material. 

David Stockwell testified that no DNA samples could be obtained from the long black rain coat.

Finally, Stockwell testified that the shoes in the duffel bag had four stains.  Three of these provided results.  Two stains showed Vitale was the contributor.  One stain from the sole of the shoe was degraded and showed three potential contributors, Vitale, Dyleski, and a third person. The statistics that the DNA in the sample was Dyleski’s were:

1 in 13 Africans

1 in 6 Caucasians

1 in 9 Hispanics

Again, there was no confirmatory tests performed to determine if this sample was blood or whether it was saliva or some other biological material. 

At the preliminary hearing in February 2006, Stockwell testified regarding Dyleski's contribution to this sample on the sole of the shoe, was a limited profile -- nine out of thirteen markers.

David Stockwell testified that he tested two samples from two separate areas of the duffel bag itself.  He testified the grip and the zipper clasp area.  The zipper clasp area, 13-9-1, contained a mixture of a major contribution of Vitale's blood and a minor contribution.  Statistics that the major contributor blood in the sample was Vitale's were:

1 in 62 quadrillion Africans (A quadrillion is 1 million multiplied by 1 billion)

1 in 13 quadrillion Caucasians

1 in 14 quadrillion Hispanics

Dyleski could have been the minor contributor of genetic material in sample 13.  Seven loci matched.  There was no confirmatory test to determine if this material was blood or saliva.  If it was saliva it could be considered “background”.  The statistics that this sample was Dyleski’s were:

1 in 450,000 Africans

1 in 560,000 Caucasians

1 in 65,000 Hispanics

Next, Stockwell testified about the one black glove found in the duffel bag.  He obtained four samples from the glove, two from the exterior of the glove and two from the interior.  Blood had saturated through the fabric.  Three of the samples, which were presumably blood, had the profile of Vitale.  A sample obtained from inside the glove did not match Vitale or Dyleski.  It had two alleles that Dyleski did not possess. Stockwell testified that Dyleski was not the source of this DNA and that there must be a third person present.  There was no evidence that this sample was run through the FBI Codex or tested against the DNA of any other parties.

DDA Hal Jewett elicited testimony from Stockwell that fourteen swabs were taken from under Vitale’s fingernails, and that none of these samples matched Dyleski's genetic profile. They all matched Vitale's profile. 

Stockwell testified about a single edge knife which was placed by Dyleski into the backpack that he gave to his girlfriend. Dyleski's girlfriend Jena, in turn, conveyed it to Esther Fielding who then gave it to the police.  All external areas of the knife were negative for any biological samples.  However, inside the fold where the knife blade is folded back into the handle, there was a degraded DNA mixture.  It did not contain Vitale’s profile.  According to Stockwell, Dyleski could have been a contributor but the number of alleles made it difficult to do a statistical analysis. Thus, there were no statistics to link this sample to Dyleski, yet Stockwell persisted that Dyleski "could have been a contributor".

On cross-examination, defense counsel Leonida obtained testimony from David Stockwell that two alleles obtained from the sample inside the glove could not have been provided by Dyleski.  Therefore he was not a contributor.  Stockwell admitted that there was a third contributor to the sample found inside the glove. Leonida did not attempt to determine if third-party DNA was found under Vitale's fingernails, and she did not attack Stockwell's testimony that Dyleski "could have been a contributor" to a sample in the knife, even though there were zero statistics to support his contention.

Under cross-examination, Stockwell also stated that blood, hair, bone, urine and saliva can all contain cells that can yield a DNA profile. Leonida got Stockwell to admit that there is a specific test for blood given when human hemoglobin is found in blood.  Once again, Leonida failed to point out that none of the DNA profiles could be confirmed as being blood, or saliva or other material.

On August 14, 2006, Jason Kwast, Contra Costa County criminalist testified that he compared a partial pattern under the ball of the foot found in blood on a lid in the Vitale/Horowitz residence to the pattern produced by the Land’s End shoes found in the backpack. He found the general pattern of the shoe was the same as the general pattern of the prints on the lid.  He could not specify the size of the shoe.  He stated, “It could be the shoe”.  On cross examination, defense counsel Leonida asked if he knew how old the shoes were.  “No.” he replied. Kwast said he called the manufacturer to determine how many Land’s End shoes were “out there.”  Leonida failed to ask the obvious follow up question to determine how many were "out there."  It is unknown whether she will call a qualified person to testify about this issue.

On Monday August 21, 2006 between 10:30 a.m. and 12:00 p.m., Leonida will call witnesses to complete the defense case. On August 22, 2006, starting at 9:00 a.m., both counsel will present closing arguments.

So far, Leonida has not called any DNA expert to testify.  She has called no expert regarding the foot prints or the glove prints.  There are many loose ends in the scientific testimony, particularly the DNA testimony that could be turned into reasonable doubt if they were properly presented to the jury.  The jurors need to be made aware of the holes in the DNA testimony in order to determine if the DNA testimony presents statistics so low that they are almost worthless.

Barring any effective rebuttal to the DNA testimony introduced by the prosecution it is doubtful that Scott Dyleski can avoid a conviction for first degree murder in the death of Pamela Vitale. The only other possibility to avoid life in prison is for young Scott Dyleski to take the stand and tell the whole truth and nothing but the truth. Will he?

Kathryn Joanne Dixon © 8/20/06