Prosecutors in Tree of Life case refute defense claim that DNA vials were empty

Attorneys for the federal government said in a court filing this week that vials provided to the defense for independent DNA testing in the Tree of Life synagogue shooting case were not empty and instead simply need to be rehydrated.

Had defense attorneys for the man accused of killing 11 people at the Squirrel Hill synagogue more than four years ago read reports provided to them in April and June, they would have known that, the U.S. Attorney’s office wrote.

Instead, the government accused lawyers for Robert Bowers of filing unnecessary motions and “perpetuating a recent pattern of engaging the court on issues that the parties might be able to resolve, or at least narrow” before taking them to the court.

Defense attorneys filed a motion with U.S. District Judge Robert J. Colville last week accusing the government of giving them empty tubes to be sent for independent DNA testing at a lab in England.

Included in that motion was an affidavit by a scientist at Cellmark Forensic Services who said that when he used a centrifuge to “spin down” the contents of 17 tubes, 11 of them were empty.

However, in the response filed by the U.S. Attorney’s office on Wednesday, the government said that was not the case.

“Although the defendant complains that several vials are ‘empty,’ his motion and accompanying affidavit are silent as to whether his expert attempted to rehydrate the relevant vials,” the prosecution wrote. “This rather straightforward process may be necessary because it is not uncommon for the liquid in which a DNA sample is suspended to evaporate over time, leaving the DNA in the vial — but no liquid.”

Given the length of time since the samples were collected, the prosecution said, it would be anticipated that the liquid in the vials may have evaporated and need to be rehydrated.

The prosecution also said in its response that it complied with the court’s order to produce the DNA swabs — despite defense accusations to the contrary — including providing “ample information regarding the precise quantities of remaining DNA extract and which swabs were consumed through testing.

“Again, it is unclear whether the defendant provided this information to his own expert, so that the expert could take appropriate steps in handling and analyzing the evidence,” the government wrote.

Further, an FBI forensic DNA examiner, whose report has already been provided to the defense, noted that some of the DNA extracts were small to begin with, the government wrote.

“The government has provided case and laboratory notes that document precise measurements and actions taken by the forensic examiner and others at the lab. The tests and voluminous documentation amply support the FBI Laboratory’s testing and results.”

Given the government’s response, Colville issued an order Thursday giving the defense permission to perform testing of the materials that would consume the rest of the samples.