Background on the use of DNA testing to disprove convictions

The Chain of Events since Dr. MacDonald won the right to conduct DNA testing in October, 1997

1. 1989-90: First use of DNA in a criminal case, using only nuclear DNA, which requires a relatively large sample in good condition.

2. 1996: FBI Laboratory begins using DNA in criminal cases, utilizing both nuclear and mitochondrial DNA tests. The mitochondrial variant can be taken from smaller samples of biological material, in less pristine conditions, than those required for nuclear DNA testing.

3. April, 1997: Inspector General Michael Bromwich of the Department of Justice releases a long-awaited report on the FBI lab. He finds the lab seriously deficient, and scathingly names one FBI agent, Michael Malone, as having testified falsely in the Alcee Hastings case.

4. April 16, 1997: The Wall Street Journal prints a large, front-page investigative story regarding Michael Malone's actions in a series of cases, culminating in an expose of Malone's fraudulent testimony in the MacDonald case. (It was Malone's testimony that caused the Federal courts to deny Dr. MacDonald's appeal regarding the presence of wig hairs at the crime scene, thought to be from Helena Stoeckley's wig.) IG Bromwich was not aware of Malone's involvement in the MacDonald case until he read this article.

5. April 22, 1997: Dr. MacDonald files a federal appeal, attempting to reopen the prior appeal that was rejected based on Malone's false testimony. Included in this 1997 appeal is new evidence regarding the wig fibers, plus other new evidence.

** In addition, this appeal requested that the court order DNA testing on the biologic exhibits in the MacDonald case.

6. May, 1997: The government, still represented by prosecutor Brian Murtagh, works to have Dr. MacDonald's new information denied by the court. In their legal filings, the government requests that the court not allow DNA testing in the MacDonald case.

7. October 17, 1997: The Fourth Circuit Court of Appeals orders DNA testing in the case. The court order states:

"It is adjudged and ordered that the motion with respect to DNA testing is granted, and the issue is remanded (sent back to) the District Court." (All other portions of the appeal are denied.)

8. October 1997-December 1998: The government works to prevent or delay the tests, and to limit the scope of the testing. Specifically, the government prosecutor says:

a. The defense should not be allowed both nuclear and mitochondrial DNA tests, but should have to choose one or the other.

b. The defense should be limited to certain exhibits, and not be allowed access to all the biologic exhibits.

c. The defense should not be allowed to utilize its experts’ own labs.

d. The defense should see, evaluate, and test material only at the FBI lab.

e. The defense should not be allowed to test any material which would be consumed in the testing process.

f. The defense should not be allowed access to the "known" exemplars of hairs, blood from suspects, victims, or people who might have been at the crime scene (e.g. known hairs of Colette, Kimberley, and Kristen MacDonald, Helena Stoeckley, investigators, etc.)

g. The defense should not be allowed chain-of-custody documents from the government to verify the contents of the exhibits.

The defense countered the list of limitations the government sought to impose on the testing process, arguing the following points:

aa. Both nuclear and mitochondrial testing are necessary, depending on the condition of the exhibit, to ensure accuracy.

bb. All of the biologic material should be tested if the search for truth were to be complete and as accurate as possible.

cc. The defense requested that the material be investigated at its own labs, or, in the alternative, at a "neutral" lab, but not at the FBI lab, with its long history of problems.

dd. The defense refused to test materials at the FBI lab.

ee. By necessity, some of the biologic material must be destroyed to conduct DNA tests; there are no "non-destructive" DNA tests. As little as needed would be consumed in any legitimate testing.

ff. The known exemplars must be made available to the defense (or neutral lab) for comparison purposes. (That was the entire purpose behind DNA tests in the first place.)

gg. Several unanswered requests for chain-of-custody documentation records were made in an effort to authenticate the biologic material which was ultimately provided.

9. December, 1998: Judge James C. Fox, U.S. District Court judge in the Eastern District of North Carolina, ruled that the evidence (never before seen and evaluated by the defense) must be made available to the defense by February 1999, i.e. within 2 months. This deadline was not met by the government.

** Judge Fox also ruled that both mitochondrial and nuclear DNA tests may be used as needed.

*** Judge Fox limited the DNA testing to only 15 of the 50 or so existing biologic exhibits. Thus, a large proportion of the biologic material collected at the crime scene was not allowed for DNA testing. This narrowed the ability of the defense to prove the existence of outside assailants at the crime scene.

10. March 23, 1999: The defense, having until this point been denied any access to the exhibits, and no closer to DNA tests than in October, 1997 when the court order was issued, files a motion to be heard in court. Oral arguments occurred in the federal courthouse in Wilmington, N.C., in front of Judge Fox. Leading the defense team were attorneys Barry Scheck, Andrew Good, Phil Cormier, Wade Smith, and Melissa Hill. The prosecution team of three was led by Brian Murtagh. The defense attempted to reach a consensus on all of the outstanding issues between prosecution and defense, in order to expedite DNA testing.

11. March 26, 1999: Judge Fox ruled on several important issues:

a. The court would designate a "neutral" lab.

b. Both mitochondrial and nuclear testing would be available (DNA labs which can perform both were exceedingly rare in 1997).

c. Regarding the defense's fear of further government tampering with exhibit contents, Judge Fox ruled that the government must supply video and still photos of each step of the "inventory" process of the exhibits.

d. Judge Fox ruled that the government must produce the known exemplars of hair and blood for comparison purposes.

e. He also ordered the government to complete all preparations for turning over the exhibits to the neutral lab (still to be named) by May 17, 1999.

f. Lastly, Judge Fox ordered the neutral lab to do a "divisibility assessment" of each exhibit, because the government wanted its own piece of each exhibit, separate from the neutral lab. The non-divisible items were to be put in order of priority for testing, so as to destroy as few items as possible - i.e. testing can be stopped when important discoveries are made.

12. April 14, 1999: Two years after filing the appeal for DNA tests, and 18 months after the court order allowing (ordering) DNA tests, Judge Fox selects the Armed Forces Institute of Pathology as the independent lab.

13. May 21, 1999: Months after Judge Fox made it clear that all testing was to be done in the neutral lab, the defense is informed that prosecutor Brian Murtagh had the FBI lab look at the exhibits as of May 19, and that he had produced a "hair comparison" lab report on 2 exhibits, as evidence of his good faith. The defense is deeply concerned about this unexpected, and unauthorized, turn of events. The "hair comparison" consisted of routine hair studies under the microscope, exactly as was done in 1970, 1971, 1975, 1979, and 1990, by the government. When asked by the news media what the significance of this new hair comparison ordered by Brian Murtagh was, Dr. MacDonald replied, "I think it is obvious. He generated a request for further hair comparisons so his people would have access to crucial exhibits, just before the contents could be studied by DNA analysis."

14. June 3-4, 1999: At the AFIP, one of Dr. MacDonald's DNA experts is finally, after 29 years, allowed to look, under a microscope, at the 15 exhibits allowed by the judge. Quite striking is the fact that several vials, said previously to have contents, are now empty. One vial has a large fracture and hole in it, with no contents.

** At one point in the two day study, the defense was told that AFIP was considering not testing any hair less than 0.5 cm (5mm). That is, small hairs, such as those found in fingernail scrapings from the children, unless 5mm in length, would not be tested.

It was at this meeting that the defense was informed by AFIP that the only microscopist available to do the divisibility assessment ordered by Judge Fox had written a paper early in his schooling in which he was negative to Dr. MacDonald’s claims of innocence.

15. June-July, 1999: The defense urged AFIP to attempt to locate another microscopist to do the study. Ultimately, the defense was told none were available. The defense then asked AFIP to proceed, as the months (and years) continued.

16. February 2, 2000: The long-awaited "divisibility" study also turned out to be a "suitability for testing" study. There were three exhibits that gave the defense concern: Two separate hairs in two different exhibits, one being a hair from under the nail of one of the murdered family members, was measured at 5 mm, the minimum amount of hair said by AFIP to be necessary for testing. Despite this seemingly adequate measurement, the two (crucial) hairs were now deemed "unsuitable" for DNA testing.

Thus, it appeared, at this juncture, as if three of the most crucial hairs in the entire case might not be tested, despite at least two of them fulfilling the criteria set for such testing by the laboratory. This, despite the defense having located government lab notes which state quite clearly that the two brown hairs from under the victims’ fingernails did not match the hair of Jeffrey MacDonald.

17. June, 1999-May, 2000: Delays and contradictions from the prosecution continue. For instance, despite court orders allowing both mitochondrial and nuclear DNA testing, the prosecution insists that both are not allowed (just one or the other).

Similarly, Prosecutor Murtagh argued that only "nondestructive" DNA tests be allowed. This is an impossibility, given the inherent nature of DNA tests (evidence is consumed in the testing process). Also, the court order clearly allowed the testing to proceed.

18. May, 2000: The following decisions are made:

a. AFIP will commence testing once one exhibit is remounted and studied, and once all of the prosecution's objections are resolved.

b. Two crucial hairs, each measuring 0.5 cm (5 mm) will not be tested at present.

c. All blood testing, as opposed to hair testing, is also on "hold" due to Brian Murtagh’s objections.

d. No observers will be allowed to watch the DNA testing at AFIP.

e. Brian Murtagh continues to refuse to produce chain-of-custody documents for the 15 exhibits.

19. June 9, 2000: A third exhibit (63A) is remounted and restudied by AFIP. Despite this hair being 7mm in length, with a possible root, it is declared "unsuitable for testing". This means there are now 3 hairs, each in a crucial location, (this third one being from under the nail of one of the children) which will not be tested.

20. December 15, 2000: After further delays, including staff changes at AFIP, the testing is slated to begin this month. There is no timeline at this point for the release of test results.

21. February 28, 2001: Testing progress is extremely slow. As of this date, one hair is currently being tested. Minute quantities of DNA have been extracted from the one hair, and the months of January and February have been spent amplifying the DNA to a degree that will allow for accurate typing.

Note: Again, the defense learned that the DNA technician in place in December had left for a position in the private sector. A new technician will now be in charge of the DNA testing for this case (the third new technician since the beginning of testing process.)

22. September 1, 2001: A DNA profile has been obtained from one exhibit, which will be compared to "known" samples after all testing is completed. A second exhibit has, at this stage, been partially tested. The DNA in this exhibit is being "amplified" to provide enough material for profiling. At least 13 more hair exhibits remain to be tested, in addition to some blood exhibits and other biologic material.

23. October 1, 2001: Media reports indicate AFIP is deeply involved in the forensic examinations related to the September 11 disaster at the Pentagon. As of this date, the defense has been informed that testing continues on hair exhibits in the MacDonald case, with the third of fifteen hairs allowed for testing now being examined.

24. March, 1, 2002: At this point, DNA testing is ongoing, despite additional personnel changes at the lab. Extractions of DNA from the exhibits will be compared to the "known" exemplars after all exhibits have been tested. The defense hopes for results some time in 2002.

25. January, 2003: Unfortunately, the tests are still ongoing and a date for completion has not been set. The defense is advised that other cases, involving tests of degraded exhibits, have taken even longer to complete. The defense must work under the lab's parameters, and hopes for speedier progress this year.

26. October, 2003: It has now been exactly six years since the court order for DNA tests was granted. The technician in charge of testing has again changed. Prosecutor Brian Murtagh changes positions within the Justice Department, but continues to handle the MacDonald case. Fortunately, advances in technology over the past several years have helped to favorably resolve the issue regarding the suitability of the crucial small hairs for testing. A time frame for the conclusion of all tests and comparison to the exemplars is yet to be determined.

27. May, 2004: The defense is informed that the testing process will be further slowed by the AFIP's commitment to identifying casualties from the war in Iraq.

28. September, 2004: Advancements in DNA testing protocols may allow exhibits formerly deemed too small, to now be tested.

29. November, 2004: The defense, now including Tim Junkin and Wade Smith, continues to work toward completion of the DNA tests.

30. January, 2005: DNA testing continues at the AFIP.  The defense remains hopeful for results corroborating Dr. MacDonald's innocence as soon as feasibly possible.

Further updates will be provided as information becomes available.

31. July, 2005: The AFIP hopes to have completed testing by December of 2005.

32. October, 2005: The AFIP reports that it has concluded DNA testing of the exhibits allowed by the court. They begin comparison of the crime scene exhibits to the exemplars or "knowns".

33. December, 2005: The defense is informed by the AFIP that DNA results will be released at the end of January 2006.

34. January, 2006: DNA results are again delayed until at least February 2006.

35. March, 2006: The AFIP (DNA lab) releases the preliminary results of the DNA tests, filing them with the district court for the judge's evaluation. The results from the 15 exhibits tested include unsourced hairs under the nail of Kristen MacDonald and on the body of Colette MacDonald, as well as hairs from the family members, and some that yielded insufficient data for testing.