How the State Distorted the DNA Evidence

The uniform pants Daniel handed over to detectives on June 18, 2014, are the only physical evidence offered to corroborate any of the sexual-assault allegations, and the State was specific about what had happened in them in the preceding 24 hours.

Prosecutors alleged that Daniel had penile-vaginal intercourse with Adaira Gardner for roughly ten minutes through the unzipped fly of his buckled uniform pants, and raped Kala Lyles for twenty to thirty minutes through the same opening. They also alleged Jannie Ligons had oral contact with him through that fly — all within twenty-four hours of the pants collection. Trial Tr. 3768–73, 3627, 501, 511.

Three women, three alleged acts through the same few square inches of fabric, inside a single day. The fly is the one place in this case where the accusations and the physical evidence meet.

Saliva and vaginal fluid are loaded with DNA. A single milliliter of saliva carries around 17 micrograms of it. A vaginal swab taken after intercourse yields thousands of nanograms of the woman’s DNA, so much that laboratories routinely have trouble finding the man’s sperm underneath it, and a penile swab after intercourse carries far more female DNA than one after ordinary skin contact. If the fly had been saturated with “sloppy sex remnants,” to borrow Detective Davis’s phrase, the female DNA on it would have been orders of magnitude greater than what the laboratory found. Gudiseva et al. (2016), BMC Medical Genomics 9:17 (saliva yielded 17.6 micrograms of DNA per milliliter); Benschop et al. (2010), Forensic Sci. Int. Genet. 4(2):115–21 (post-coital vaginal swabs yielded thousands of nanograms of female DNA in the non-sperm fraction, an “overwhelming quantity of female cells”); Bouzga et al. (2020), Science & Justice 60(3):234–42 (penile swabs after intercourse carried significantly more female DNA than after skin contact); Gregory–Davis interview for MMI, Sept. 19, 2016 (transcript, file 542_0930, at 2).

These measurements come from different substrates and collection conditions and are not directly interchangeable. They illustrate the scale of the recovered quantity rather than predicting an exact expected yield from these trousers.

The complainant whose report led to the seizure of the pants was the first woman compared to the fly. Her reference swab was taken the same day the pants were collected, hours after the contact she described, and forensic analyst Elaine Taylor was clear about the result.

Lyles is the woman the State said Daniel raped for twenty to thirty minutes through that opening on the morning of June 18, 2014 — the same day the pants were seized. In probable-cause affidavits sworn before a judge, Detective Kim Davis wrote that Lyles's buccal swabs were compared to the profile on Daniel's pants and It was not a match. Charges involving Lyles were filed anyway. Scott Adams 05878, 05880.

Gardner's DNA was on the fly. There was very little of it, and it was not alone. The fly swabs contained low-level DNA. Dr. Michael Spence, a forensic DNA expert retained on appeal, compared those yields with another swab from the same investigation and found that a car door handle yielded roughly four to four and a half times more DNA than three of the four fly swabs, and a comparable yield to the fourth. Spence Aff. ¶14.

The samples were also mixtures of DNA from several individuals. An international panel of forensic scientists that reviewed the case observed that complex mixtures of this kind are typical of indirect transfer. Gill et al. (2017), p. 12.

In closing, prosecutor Gayland Gieger told the jury:

Taylor testified that a woman of Gardner's age would be very likely to have quite a bit of lubrication. Trial Tr. 4065.

If that is what happened, the fly should have shown signs of it. The international panel cited research finding visible staining after as little as two minutes of consensual intercourse without ejaculation, and concluded that the State's own scenario created an expectation of visible staining on the fly when the pants were seized less than a day later. Gill et al. (2017), pp. 11–12.

Taylor examined the pants under a very bright light with a magnifying glass, confirming that she examined and tested the inside and outside of the zipper-front area. Asked whether she found anything suspicious, she answered: I did not. Trial Tr. 4084:2–22.

Trial testimonyTaylor examined the zipper-front area

No visible staining. Nothing suspicious — on the spot the State identified as the site of two rapes within the previous 24 hours.

Taylor did not screen the pants with an Alternate Light Source. Spence and the international panel criticized that omission. ALS instruments are routinely used to screen clothing for fluorescence that may indicate biological material; Taylor went from bright light and a magnifier to DNA swabbing. Spence Aff. ¶9; Gill et al. (2017), pp. 15–16. No test was ever run to identify a body fluid on the swabs — for saliva, for vaginal fluid, for anything. Taylor said so herself, under oath, in 2019: I have no way of knowing what the body fluid is and I will not and I do not know it today. Taylor Dep. 129:20–22 (Jan. 15, 2019).

At trial, the opinion was presented as science. Gieger asked whether, once she knew a 17-year-old was alleging penile-vaginal rape, Taylor believed there was merit in swabbing those areas. She did: A young woman of her age would be very likely to have quite a bit of lubrication. And that lubrication could transfer cells if in fact that is what occurred. Asked whether she had training in regards to rape victims and the human body’s response to sexual intercourse, she answered: Yes, sir. Trial Tr. 4065:9–25.

Nonconsensual contact, she testified, would not change that opinion: The body — the human body reacts to arousal in different ways, whether it be consensual or whether it be a rape, and, as an older woman I think there would probably be damage in a rape case as opposed to somebody that was quite a bit younger than myself. Trial Tr. 4066:1–9.

At her deposition, she was asked what the opinion rested on. She has never testified as an expert in the physiology of sex organs and reproduction — that was the SANE nurse’s job — and she is not a forensic nurse. Asked whether she had any specific training about a 17-year-old’s physical ability to produce lubrication: No, but at one time I was a 17-year-old female and I kind of remember what it was like to be well-lubricated. The trial opinion, she agreed, was not based on her expertise as a serologist but on personal experience: I’m a female, I think I have an idea of how my body responds to things and how other females do. Now, I’m not sure if a male could testify to a 17 year old’s response to a sexual type situation. Taylor Dep. 147:3–148:12 (Jan. 15, 2019).

Her supervisor was asked about that testimony. Campbell Ruddock, the laboratory’s DNA manager, was asked at his own deposition whether a scientist testifying about the biological capability of a 17-year-old to produce lubrication is within the realm of that scientist’s expertise: No. No, I don’t. As a DNA analyst we’re really encapsulated within DNA — he would look on that as more anecdotal or medical related. It is definitely not something I would include in the testimony, he said; analysts should restrict ourselves to DNA unless we have data to support that. Ruddock Dep. 40:20–41:12, 42:10–14 (Mar. 21, 2019). Taylor never reconciled the contradiction in her own testimony: abundant lubrication, yet nothing suspicious and a trace-level yield.

Two of the three women the State said had sexual contact through that fly within a day left nothing on it. The third left a trace, in a mixture of several people's DNA, at a level at or below a car door handle, with no stain a trained analyst could find under a magnifying glass. That is the whole of the physical evidence the State offered against Daniel.

Over the next four months, that trace was turned — reference swab by reference swab, and finally in one closing argument — into proof of multiple sexual assaults.

What the match established.

Adaira Gardner's DNA was on Daniel's uniform pants — the State's laboratory reported her reference sample as matching the major contributor to both fly swabs at every genetic locus tested, with random-match probabilities in the sextillions. Supplemental Forensic Examination Report, SD-14-273, October 7, 2015 (Scott Adams 03597). That is not in dispute. What the DNA did not establish is when her cells arrived, how they arrived, or whether a sexual assault occurred.

Asked at trial whether male DNA was found on the two fly swabs, Taylor told the jury there was none, and agreed that Daniel's own DNA was not inside his own pants.

Trial testimonyWhat the jury was told about male DNA

The laboratory's Quantifiler Trio qPCR report for those same two items records Y-chromosome DNA on both:

The laboratory quantified male DNA on both fly swabs on October 1, 2015. Nine weeks later, on December 2, Taylor told the jury there was no male DNA at either location. Dr. Spence, reviewing the same report, put it plainly: her testimony suggesting the presence of only female DNA, was entirely inaccurate. qPCR Report for SD14-273, plate qPCR093015DR, Quantifiler Trio, run Oct. 1, 2015, technical review Oct. 7, 2015, Scott Adams 03610; Trial Tr. 4072:14–25 (Dec. 2, 2015); Spence Aff. ¶ 7 (Jan. 30, 2017).

The 2015 quantification was not the first sign of it. The June 25, 2014 electropherogram for the earlier fly swab, 17Q2, called a Y peak at 170 RFU beside an X peak at 4,709. Ruddock reviewed that page on November 8, 2014. Scott Adams 04425 (GeneMapper ID-X printout, June 25, 2014, page 3 of 3).

The male DNA undercuts the mechanism the State sold the jury. The State’s story was that the DNA on the fly could not have arrived through ordinary touch and instead came from vaginal fluid during a rape. But the laboratory found male DNA on the fly along with the female DNA. Men don’t produce vaginal fluid. The male-DNA result establishes that at least some DNA on the fly arrived by a mechanism other than Gardner’s vaginal fluid. That directly contradicts any claim that all of the DNA on the fly can be explained by vaginal-fluid deposition. Handling, secondary transfer, and contamination are all possible routes; the result does not say which, and the evidence was sitting in the State’s own file. The jury was told the opposite. Taylor’s no Y answer took that proof off the table.

The State did not only argue that Gardner's DNA was on the pants. It argued something further and more powerful: that Daniel's own DNA was not there.

That claim answered the defense theory of innocent transfer before it could be made. If ordinary handling deposits skin cells on clothing, why was the wearer's DNA missing from his own trousers?

But the laboratory never made that exclusion. Its report says:

Not suitable for comparison is not an exclusion. It means the laboratory did not make a comparison to the minor component — and therefore did not rule Daniel out of it.

The two claims were not independent. Taylor’s vaginal-fluid opinion was built on the exclusion: she testified that because Daniel was not a contributor to the sample, there was a good possibility the cells had arrived in a liquid such as vaginal fluid. The appellate court recorded the premise in exactly those terms. Holtzclaw v. State, 2019 OK CR 17, 448 P.3d 1134, ¶ 46. The laboratory’s own report says the exclusion was never made. Without it, the vaginal-fluid opinion loses its stated basis. The jury was told two things; they fail together.

On the same sample, Dr. Michael Spence identified ten alleles at 17Q4 that could not have come from Gardner, and nine consistent with Daniel. Spence Aff. ¶¶8, 13.

The State’s argument depends on treating Daniel’s supposed absence as meaningful. If some of the minor-component DNA is Daniel’s, his DNA was not absent, and the reason the jury was given for dismissing innocent transfer goes with it. Wearer DNA on one’s own clothing is unremarkable; a 2018 study of worn upper garments detected the wearer in every interpretable profile from collars and cuffs. Magee et al., Forensic Sci. Int’l: Genetics 34:152–161 (2018).

If none of the minor component is Daniel’s, his absence proves nothing either: wearers often leave no detectable DNA on their own clothes. In a study cited by the international panel of forensic scientists that reviewed the case, the wearer was detected in only about half of samples from the waistbands of underpants worn for twelve hours. Pants without their wearer’s DNA are ordinary — not something only a rape can explain. Breathnach, Williams, McKenna & Moore, Forensic Sci. Int’l: Genetics 20:53–60 (2016); Gill et al. (2017), pp. 26–27.

The argument outlived the trial. A year after the verdict, Gieger told a local television reporter: Daniel Holtzclaw’s own DNA was not found on the inside of his uniform pants. I think that speaks louder than anything I could argue as to the ability about someone’s skin cells to get transferred to a piece of fabric. The exclusion he was still treating as decisive had never been made. KFOR.com, “EXCLUSIVE: Daniel Holtzclaw’s family speaks out about conviction, appeal one year later,” Dec. 13, 2016.

In September 2016, nine months after the verdict, Gregory and Davis sat for an on-camera interview for Michelle Malkin Investigates. On camera, they were asked whether there was any innocuous, non-nefarious reason the DNA could be on the pants. Gregory answered No. Davis also answered No. Disclosure: Michelle Malkin is married to UNCUFF president Jesse Malkin.

The pockets had not been tested. Asked why not, Davis answered: Why? Gregory–Davis interview for MMI, Sept. 19, 2016 (transcript, file 542_0929, at 38). The pockets were a control. If Gardner’s DNA had turned up in a pocket — where no sexual act was alleged — it would have shown her DNA reaching the pants through non-sexual contact, and the fly finding would have stopped proving anything. Untested, the pockets could never undercut the fly.

Gieger did more than leave them untested — he argued from them. In closing, he told the jury the DNA was found not of his pockets, not of his cuff, not where he sits, but of the exact location she says his penis came in contact. No pocket, cuff, or seat swab was ever tested. The absence Gieger offered the jury as proof of guilt was an absence nobody had looked for. Trial Tr. 4307:11–13.

Pressed on touch transfer, Davis said she had never worked a sexual-assault case with transfer DNA, then allowed: Anything is possible. I would never say it’s not possible. Michelle Malkin Investigates, Daniel in the Den, Pt. 2 (CRTV 2017), as-aired transcript.

When the formal questions ended and the crew was wrapping up, the conversation turned back to the DNA, and Davis — retired seven weeks earlier — prefaced her answer: I’m not saying this on recording.

Gregory agreed: we preach it all the time. Transfer DNA is just almost but impossible right now with what we have. Davis added a standard: You can’t use mixtures. You have to have a … solid profile that they say is one person. The fly samples were mixtures. And the sloppy remnants had already been looked for: Elaine Taylor examined the fly under a very bright light and a magnifying glass, and found nothing suspicious. No stains. No remnants. Same transcript, at 2–3; Trial Tr. 4084:2–22.

By his 2019 deposition, Rocky Gregory acknowledged that touch DNA exists and repeatedly disclaimed expertise, but resisted treating non-intimate transfer as a serious possibility, explaining that he was going by what the laboratory had told him, and that the sex explanation was what I was told. Gregory Dep. 115:17–116:6, 116:17–18, 118:17–18, 119:18–24, 120:7–17 (Jan. 17, 2019).

The laboratory was his mother-in-law. Elaine Taylor — who by her own account told the prosecutor before trial that no test could say whether the material was vaginal fluid, and who under oath in 2019 said she has no way of knowing what the body fluid was — is the source the detective gave, three years after the verdict, for his certainty that sexual contact was the only explanation. Taylor Dep. 8:8–9 (Jan. 15, 2019) (Rocky is my son-in-law); Davis Dep. 28:18 (Jan. 29, 2019).

The Court of Criminal Appeals put the gap on the record: the claim that the DNA came from Gardner’s vaginal walls was a claim Taylor never made. It was made to the jury anyway — by Gieger in closing — and it reached Gregory as what I was told. Holtzclaw v. State, 2019 OK CR 17, 448 P.3d 1134, ¶ 47.

Timothy Muzny went further.

Muzny Dep., Mar. 26, 2019, 225:17–226:6.

Asked next whether Gardner or Daniel actually was a shedder, he answered I have no idea and I do not know. Muzny Dep. 226:20–227:1.

Muzny also did not know what his own laboratory had found. Asked whether he was aware there was unidentified male DNA on the fly, he answered No, I’ve never heard that it was an unidentified male. Asked whether learning of it would at least make him consider the possibility that Daniel had not committed the assault, he answered No. Muzny Dep. 227:6–16. The lieutenant who supervised a four-month hunt to identify the DNA on the pants had never heard of the male DNA in his laboratory’s own report — and said that learning of it would change nothing.

Asked the same questions under oath, Detective Davis said: That science is over my head. I’m not going to say yea or nay on that. She agreed that touch transfer can happen under certain circumstances and, asked what the source of Gardner’s DNA was, answered: I don’t think they can say that. Asked whether there was any scientific basis for the vaginal-secretions conclusion, she said: I’m not going to say it is or isn’t because I don’t know. Davis Dep., Jan. 29, 2019, 119:13–120:17, 257:17–20, 258:23–259:4.

Captain Ron Bacy, to whom Muzny reported, would not call transfer a reasonable explanation because, he said, I’m not qualified to make that assertion. He would not rule it out either: I agree that anything is possible. Bacy Dep., Mar. 27, 2019, 159:19–160:7, 160:25.

The categorical statements about how the DNA arrived came from Gregory, whose mother-in-law performed the testing, and Muzny, who had not heard the contents of her report when he was deposed.

Touch transfer is not a defense theory. It has been documented in the peer-reviewed literature for more than two decades and is summarized below; no forensic scientist disputes that it happens. The lieutenant who supervised the investigation ruled it out in advance of any evidence, invoked a shedder distinction he could not apply to either person involved, and dismissed the entire discipline of forensic DNA transfer as purchasable — in a case the State built on the findings of a forensic scientist.

By then Gill et al. had published their report and Dr. Michael Spence had called the vaginal-fluid theory junk science. Spence Aff. ¶ 8 (Jan. 30, 2017); Gill et al., “Scientific Issues in the Case of Oklahoma v. Daniel Holtzclaw by an International Panel of Forensic Experts” (July 25, 2017).

So here is where the DNA stands. In Dr. Spence’s assessment, the quantity is consistent with incidental handling and difficult to reconcile with the State’s vaginal-fluid theory: fluid that rich in DNA leaves a lot of DNA behind, and the fly carried less than a car door handle. Spence Aff. ¶¶ 14, 19 (Jan. 30, 2017). The fabric doesn’t support it either: no stain, nothing suspicious under a bright light and a magnifying glass, and no Alternate Light Source screening because nobody thought to do one. And the detectives’ misreading of that trace did real damage. They took an unidentified speck of DNA as proof of a victim nobody had found, then spent four months testing eleven women to find her. That hunt is how a case with one accuser became a case with thirteen.