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State v. Fortin2/3/2004
ter as Middlesex County medical examiner, had no reservation reaching a firm conclusion with respect of the age of the sperm. She reasoned that had there been intercourse "immediately prior to death," there would have been "numerous sperms," rather than "a few sperm heads or an intact sperm." She concluded that "there was no ejaculation into [the victim's] vagina at the time or immediately prior to her death" and, therefore, the recovered ejaculate "had nothing to do with her murder."
Although the defense was not bound by that conclusion, Dr. Shuster's testimony left the age of the sperm, at best, as a matter of conjecture. Dr. Shuster could not discount the possibility that the recovered sperm entered into the victim's vagina at or near the time of her death and, therefore did not render an opinion within a reasonable degree of scientific certainty. Had defendant been able to pinpoint the entry of the sperm to the time of Padilla's death, then, even in the absence of identifying the donor, that evidence would have been admissible to challenge the State's theory that the Padilla murder and the Trooper Gardner assault both involved digital penetration only. But the defense could not mount such an attack on pure speculation.
The second issue is whether the vaginal swab submitted to Cellmark Laboratories for DNA (deoxyribonucleic acid) typing provided some reasonable basis to argue third-party guilt. At a N.J.R.E. 104 hearing, Paula Yates, a specialist in forensic science at Cellmark, testified that she performed a DNA analysis of the vaginal swab. She stated that she was unable to determine within a reasonable degree of scientific certainty or probability whether the sample she examined excluded the DNA of defendant, Fernandez, or even Padilla. She was unable to render such an opinion because of the absence of "control dots" that are visible when there is a sufficient amount of DNA to be tested and typed reliably for the presence of particular alleles. According to Yates, the absence of the control dots meant that she had no way of knowing if she was observing all of the DNA in the vaginal swab. Yates testified that, without the control dots, the analysis could not exclude Padilla, Fernandez, or Fortin as the source of the DNA.
Despite those limitations, the prosecutor and defense counsel prodded Yates to analyze the available data and to assume it to be "interpretable." Working under that assumption, Yates testified that the data indicated that there were sperm from at least two different donors, a primary donor who contributed a number 1.2 allele and a secondary donor who contributed a number 2 allele. The analysis could not exclude defendant as the primary donor because his DNA typing had similarities to that of the primary profile, in particular the number 1.2 allele. Yates stated that defendant could not have been the secondary donor because he could not have contributed the number 2 allele. Yates also stated that Fernandez could not have contributed the number 2 allele, but defense counsel did not explore the import of that answer, although the answer suggested Fernandez's exclusion as a secondary donor. Defense counsel did not inquire of Yates whether Fernandez's alleles included or excluded him as a primary donor.
Based on the N.J.R.E. 104 hearing testimony, the court entered an order barring any evidence or argument regarding "penile penetration resulting in an ejaculation by an unknown third-party at the approximate time of [Padilla's] murder." The court reasoned that Cellmark, the laboratory that analyzed the vaginal swab for DNA, "could not within a reasonable degree of scientific certainty or probability exclude any of the three known persons [defendant, Fernan
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