Defense accuses government of providing empty tubes for DNA testing in Tree of Life case

Defense attorneys in the Tree of Life synagogue shooting said in a court filing this week that 11 of 17 plastic tubes of evidence provided to them for independent DNA testing were empty when they arrived at the lab in England.

Attorneys for Robert Bowers are asking the federal judge presiding over the case to compel the U.S. Attorney’s Office to provide the evidence it asked for, as well as an explanation for what happened that led to the empty vials.

In November, U.S. District Judge Robert J. Colville granted a defense request — over government objection — to conduct independent DNA testing of biological materials from the defendant and victims in preparation for trial in April.

Bowers is accused of killing 11 people at the synagogue in Squirrel Hill on Oct. 27, 2018. The government is seeking capital punishment.

The defense wrote in its motion filed late Tuesday that he judge’s Nov. 4 order permitting the testing “was to ensure meaningful access to evidence for independent testing pursuant to the federal rules of criminal procedure.

“At no time did the government advise the court or counsel for Mr. Bowers that the requested extracts and swabs did not exist.”

On the contrary, the motion continued, the government provided an inventory of the items, listing them as “swabbings” and “cuttings.”

It was only after the items were shipped to the lab in England that the scientist who was to conduct the testing found that the majority of samples contained in one item for testing were empty.

A few other samples, the defense said, contained so little liquid that if the tests were completed, they would consume the rest of the sample.

Part of Colville’s order specified that the tests to be done be “non-consumptive.”

According to the motion, the defense retrieved the items on Dec. 6 and shipped them to Cellmark Forensic Services in England.

The defense expert, Andrew McDonald, opened the package on Dec. 8, Bowers’ attorneys wrote.

He placed the 17 tubes from one sample in a centrifuge to “spin down their contents” to determine which contained remaining DNA extract. But when that was completed, he found that 11 tubes were empty, the motion said. Six had so little remaining liquid that any testing would be consumptive.

“Though the government has had exclusive control over the evidence in this case, it has now produced empty plastic tubes and an extraordinarily small amount of liquid in other tubes, essentially preventing the defense from independent testing of the crime scene DNA evidence,” the defense wrote.

The attorneys asked that the government be required to provide a declaration from the FBI’s laboratory personnel as to why they produced the empty plastic tubes, and whether any other swabs exist for additional testing.

The government has not filed a response on the matter.

Paula Reed Ward is a Tribune-Review staff writer. You can contact Paula by email at [email protected] or via Twitter .

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