The 2014 Bench Notes
Weeks before trial, the State gave Daniel’s lawyers twenty-one pages of Elaine Taylor’s bench notes from the 2014 DNA testing. Each page is dated. But several pages contain evidence that had not reached the laboratory by the date given. One is dated October 16, 2015, seven days before the State produced the set. The pages preserve little actual analysis. They list evidence and tabulate results, with almost nothing about what the analyst saw, considered or decided.
Produced as her 2014 notes.
On August 21, 2015, Daniel’s trial lawyers asked for the forensic analyst’s complete case file, including notes and bench notes.
Def.’s Mot. for Discovery ¶ 40(a) (filed Aug. 21, 2015), O.R. 213. Two months later, on October 23, Assistant District Attorney Gayland Gieger hand-delivered a discovery letter. Item 7 reads: Per your request, a copy of the Bench Notes created by Elaine Taylor in performing the DNA Analysis relevant to this case.
Letter from G. Gieger to S. Adams (Oct. 23, 2015), O.R. 592–93; Scott Adams 03589–90.
The enclosure was twenty-one pages, all bearing the lab number SD-14-273 and Ms. Taylor’s initials, numbered p.1 through p.21. Eleven are handwritten pages logging each item of evidence as it arrived at the laboratory. Five are printed DNA profile summary forms and five are serology worksheets, filled in by hand. OCPD Lab No. SD-14-273, bench notes, pp. 1–21 (DNA profile values masked by UNCUFF); Scott Adams 11825–45.
The defense gave the pages to its experts. After the verdict, Mr. Gieger told the court that bench notes were also produced as well at their request,
and pointed to the October 23 letter. Defense counsel agreed: we did get those and we did give them to our experts.
Mot. for New Trial Tr. 18:15–18, 21:7–13 (Jan. 21, 2016). The pages were never shown to the jury. They were the record the defense was given of how the 2014 testing was done.
They record evidence and results, and little of the analysis itself.
The eleven handwritten pages are an inventory. They record each transfer from the property clerk and describe each item, in language that matches the “Items Submitted” section of Ms. Taylor’s typed report almost word for word, and end with a one-line statement of the requested analysis. Bench notes pp. 1–11; OCPD Forensic Exam. Rpt. SD-14-273, at 1–5. The five DNA profile summary forms tabulate final genotypes. The five serology worksheets are a second inventory, with columns for blood, semen, alternate light source and saliva tests; the only entries in those columns are negative results on Ms. Ligons’s oral wash and oral swab. Bench notes pp. 12–21.
Nothing in the twenty-one pages describes the examination of the pants: their condition when the bag was opened, what was seen under the light and magnifier, whether photographs were taken, or why the two swab sites on the fly were chosen. Nothing records the interpretation of the mixtures found on those swabs. And nothing records a decision to skip the screening the worksheet itself provides for. On the row for the pants, every column is blank, including “ALS,” “Saliva” and “Comments.” The form has a code for an item not examined, “NE.” It is not used.
Ms. Taylor has since given her reasons under oath. She said she began from “a really big assumption” that Ms. Ligons’s skin cells might be on the front of the pants, and did “not do any alternate light source testing of any kind” because she “was not thinking it was going to be saliva or vaginal fluids or semen at that point.” Asked why she did not test the pants for body fluids, she said she “was only looking for touch DNA on the front.” Taylor Dep. 18:16–19:5, 54:17–25 (Jan. 15, 2019). Her deposition may describe what she was thinking in 2014. The notes do not preserve it. Nor does the set record the second examination. On September 28, 2015, Ms. Taylor swabbed the inside of the fly for the first time and reported the results on October 7. The twenty-one pages, produced sixteen days later as her bench notes, contain nothing from that work. They do not record whether alternate light screening or a saliva test was considered, rejected, or never came up. The ISO standard her laboratory worked under calls for records of “original observations” and enough information to establish an audit trail. ISO/IEC 17025:2005 § 4.13.2.1.
Pages dated before the deliveries they record.
Each handwritten page has a date in the top right corner. The entries record transfers of evidence from the property clerk to the laboratory, each with the date of the transfer. On four pages dated in 2014, the transfers written on the page come after the date at the top. Page 10 is dated 2015.
| Page | Dated | Transfers recorded on the page |
|---|---|---|
| p.4 | 06/20/14 | June 27, 2014 (items #21–29, swabs from a Pontiac Grand Am) |
| p.7 | 07/02/14 | July 11 and August 6, 2014 (items #36–39) |
| p.8 | 08/07/14 | August 19, 2014, twice (items #40–43) |
| p.9 | 08/31/14 | September 17 and October 15, 2014 (items #46–49) |
| p.10 | 10/16/15 | October 24 and November 4, 2014 (items #50–53) |
The entries also run across the page breaks. The description of item #22 starts at the bottom of the page dated June 20 and finishes, mid-sentence, at the top of the page dated June 27. The break does not fix when either entry was written. It does mean the date at the top of a page cannot be taken as the date everything on it was recorded. Bench notes pp. 4–5.
A page describing 2014 evidence is dated October 16, 2015.
Page 10 records reference swabs from three women that reached the laboratory in October and November 2014. The date at the top is 10/16/15. That is a year after the 2014 testing these notes are supposed to record, and eleven months after the November 12, 2014, report that was supposed to be written from them.
On September 28, 2015, at Mr. Gieger’s request, Ms. Taylor returned to the pants and swabbed the inside of the fly. She reported the results on October 7. Taylor Dep. 65:20–66:14 (Jan. 15, 2019); OCPD Supp. Forensic Exam. Rpt. (Oct. 7, 2015). The date on page 10 comes nine days after that report. Seven days after that, on October 23, the State gave the twenty-one pages to the defense as Ms. Taylor’s bench notes.
People write the old year on a check in January. Nobody writes October 2015 in October 2014. In any case, a mistaken year would not resolve the chronological problem: if Ms. Taylor had meant to write 10/16/14, the page would still be dated before the October 24 and November 4 deliveries it records.
A second page points the same way. Item #17 is Daniel’s uniform pants. On the page dated June 19, 2014, a margin note beside the pants describes the two swabs as “one swab from the left outside fly, one from the right outside fly.” Bench notes p.3. Ms. Taylor’s November 2014 report describes the same swabs as taken from “each side of zipper area,” with no “outside.” OCPD Forensic Exam. Rpt. SD-14-273, at 2 (Nov. 12, 2014). She testified that in 2014 she “never thought anything about the interior of his pants”; the inside of the fly became a separate question only when Mr. Gieger asked her to swab it in September 2015. Taylor Dep. 32:8–15. In October 2015, three weeks after she had swabbed the inside for the first time, “outside fly” was the distinction on her mind. In June 2014 there was no inside to distinguish it from.
Forms dated before the samples they list.
The printed forms raise the same problem with the date at the top of a sheet. The DNA profile summary marked page 2 is dated June 26, 2014. Its last row is the reference profile from item #34A. Those swabs were not transferred to the laboratory until July 2, according to page 7 of the same notes. Bench notes p.13; p.7.
The summary marked page 4 is dated July 9, 2014. It lists the full profiles of eight women, items #36A through #50A. Their swabs reached the laboratory between July 11 and October 24. Bench notes p.15; pp. 7–10.
All five serology worksheets carry the date June 19, 2014, the day the first evidence arrived. Between them they list every item in the case, through items #52 and #53, which were delivered on November 4. Bench notes pp. 17–21; p.10.
There may be an innocent explanation for some of this. A form can be opened on one date and added to as evidence arrives. If that happened here, the date at the top records when the form was started. It does not show when a given row was added or when the work behind it was done, and nothing else on these sheets does either. Contemporaneous notes are supposed to answer those questions.
Her laboratory’s accreditation required notes made at the time.
Ms. Taylor told the jury that the OCPD laboratory had held ISO accreditation since 2010, under standards a little bit higher
than the ordinary crime-lab accreditation. Trial Tr. 2694:22–2695:15. The ISO standard for testing laboratories in force in 2014 required that observations, data and calculations be recorded at the time they are made.
ISO/IEC 17025:2005 § 4.13.2.2. The DNA unit’s own quality manual, issued in April 2014, listed handwritten case notes as part of the case record. OCPD DNA Unit QA1, Quality Assurance Manual, Rev. 0 (Apr. 18, 2014), § K; Scott Adams 03809.
The FBI’s quality standards for DNA laboratories, which bound every laboratory in the national DNA database in 2014, required written procedures for taking and maintaining case notes to support the conclusions in reports, and defined the analytical documentation a laboratory must keep to include “observations made; results of tests performed; and charts, graphs, photos, and other documentation generated which are used to support the analyst’s conclusions.” FBI, Quality Assurance Standards for Forensic DNA Testing Laboratories, Std. 2 (definitions), Std. 11.1 (eff. Sept. 1, 2011). The Justice Department’s Inspector General explained why the timing matters, after reviewing the FBI’s own DNA laboratory in 2004: “contemporaneous documentation is important to ensure that the case file accurately reflects the work performed on each evidence item that is tested. If staff members are allowed to delay recording observations and test results until after they have examined all the items for a case or have completed all of their work for the day, their documentation may not be fully accurate. Also, staff members may be unduly influenced by protocol requirements when relying on memory, and document what they know should have occurred when their recollection is vague.” U.S. Dep’t of Justice, Office of the Inspector General, The FBI DNA Laboratory: A Review of Protocol and Practice Vulnerabilities, ch. 5 § II.B.3 (May 2004). In 2016 the National Commission on Forensic Science, the Justice Department’s own advisory body, adopted the same rule by a 97 percent vote: records “should be created contemporaneous with the examination of evidence,” in enough detail that another analyst could “understand and evaluate all the work performed and independently analyze and interpret the data and draw conclusions.” Nat’l Comm’n on Forensic Science, Documentation, Case Record, and Report Contents (adopted Sept. 13, 2016).
This is not a demanding standard. King’s College London teaches it to beginners in an introductory online course, written by the team that runs the college’s own ISO 17025 DNA laboratory. Notes “must be contemporaneous; made at the time of the event or as soon as it is possible to do so after. If there is a significant delay that cannot be accounted for, then the notes cannot be used.” They should record the day, date, time and place; the protective equipment worn and the contamination precautions taken; who else was present; every calculation in full; reagent and equipment lot numbers; the controls run; and “any problems, errors and troubleshooting carried out.” Mistakes are struck through with a single line, initialed and dated. Blank space is ruled through, signed and dated. The specimen page the course shows for one blood swab at one scene fills a notebook page, with times to the minute, the lot numbers of the test strip and the control, and a second signature “checked for completeness.” King’s College London, “How to take good forensic notes,” The Science Behind Forensic Science (FutureLearn). Ms. Taylor’s notes for the pants record the date the item arrived, a description copied from the property receipt, and a margin note naming two swabs. Nothing else.
Notes made at the time preserve what the analyst wrote while the work was going on, before later events could shape how it was described.
What UNCUFF believes happened.
Put the pieces together. An entry that begins at the bottom of the page dated June 20 continues, mid-sentence, at the top of the page dated June 27. Four handwritten pages are dated before the deliveries they record, and the printed forms carry dates months before the samples listed on them. The descriptions match the typed report almost word for word. One page is dated October 16, 2015, a year after the work, and a margin note uses a distinction that did not exist until September 2015. Seven days after that date, the State handed the set to the defense as “Bench Notes created by Elaine Taylor in performing the DNA Analysis.”
The most likely explanation is that these twenty-one pages were created in October 2015, shortly before the State produced them to the defense, by working back from the report and the property records. If so, one of two things is true of the notes Ms. Taylor made at the bench in 2014, if she made any: they no longer exist, or they were never produced. No earlier version has ever been produced.
Even taken at face value, the pages are an inventory of the evidence and a table of results. They preserve almost none of the analysis: not the examination of the pants, not the reasons the screening was skipped, not the reading of the mixtures.