                                      2017 IL App (1st) 150642
                                           No. 1-15-0642
                                            June 30, 2017

                                                                             SECOND DIVISION



                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                         FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS, )               Appeal from the Circuit Court
                                          )               of Cook County.
          Plaintiff-Appellee,             )
                                          )               Nos. 07 CR 14502
          v.                              )                    07 CR 12014
                                          )
     DARNELL RICHMOND,                    )               The Honorable
                                          )               Timothy Joseph Joyce,
          Defendant-Appellant.            )               Judge Presiding.



                 JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                 Justices Pierce and Mason concurred in the judgment and opinion.


                                           OPINION

¶1        A jury found Darnell Richmond guilty of aggravated criminal sexual assault, based

       largely on DNA evidence. Richmond now appeals from the dismissal of his postconviction

       petition as patently without merit. He argues that his attorney should have sought in

       discovery the number of nine-locus matches in the Illinois DNA database to challenge the

       use of the product rule to estimate the probability that a person at random would match the

       DNA of the sperm found in the victim at the nine loci where Richmond’s DNA matched the

       sperm. We find that, because a prior analysis of the number of matches actually found in the
     No. 1-15-0642


        Illinois database broadly supported the use of the product rule, the failure to request an

        update of the data in discovery does not show ineffective assistance of counsel. Accordingly,

        we affirm the Cook County circuit court’s dismissal of the postconviction petition.

¶2                                         BACKGROUND

¶3         On April 9, 2007, around 8:30 p.m., a black man about 6 feet tall, wearing a puffy black

        jacket with a fur-lined hood, grabbed the arm of Lia Skalkos as she stood near the

        intersection of 56th Street and Lake Park Avenue in Chicago’s Hyde Park neighborhood.

        Skalkos screamed and ran off, and then she called police.

¶4         Around 9 p.m. that night, a black man in a puffy black jacket with a fur-lined hood came

        up behind C.L. near the corner of 55th Street and South Everett Street in Hyde Park, about 4

        blocks from 56th and Lake Park. The man prevented C.L. from seeing his face. He forced

        C.L. to perform oral sex on him, and he made contact between his penis and C.L.’s vagina

        and anus. He robbed her of more than $50 and ran off. C.L. told a man passing by that she

        had been raped and robbed. The man drove C.L. to a hospital, where a nurse swabbed C.L.’s

        mouth, vagina, and anus.

¶5         Later that same night, a black man about 6 feet tall, wearing a black coat with a fur-lined

        hood, came up behind Erin Luboff as she walked into her apartment building near 54th Street

        and South Kimbark Avenue in Hyde Park, about 1 mile from 55th and Everett. The man

        grabbed Luboff’s hips and pushed her into a wall. She slid to the floor. The man punched

        Luboff in the face and stole her phone.

¶6         A police laboratory analyzed the DNA found on the anal swab taken from C.L. One court

        explained: “DNA is composed of the familiar double-helix strand of nucleotide base pairs

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        ***. *** Markers used for human identity testing are found in the DNA either between the

        genes or within genes and simply do not code for genetic variation. The location of ‘markers’

        in these highly polymorphic or variable regions is called a ‘locus’ (plural ‘loci’), and a

        variant of the DNA sequence at a given locus on a chromosome is called an ‘allele.’ ” In re

        Jessica M., 399 Ill. App. 3d 730, 743 (2010). The alleles found at 13 standard loci form the

        DNA profile of an individual. People v. Watson, 2012 IL App (2d) 091328, ¶ 7.

¶7          The laboratory’s analysis of the anal swab here produced two DNA profiles. One

        matched C.L. The DNA for the second profile produced an unambiguous reading at 9 of the

        13 loci usually tested to create a complete DNA profile for purposes of identification. At the

        other 4 loci, the analyst found some ambiguity about the reading. Police searched the Illinois

        DNA database using the 9 loci where the analyst found a clear reading. Police found that

        Richmond’s DNA had the identified alleles at all 9 loci. The ambiguous data from the other

        tested loci did not rule Richmond out.

¶8          On May 23, 2007, Luboff viewed a lineup. She positively identified Richmond as the

        man who attacked her. C.L. also viewed a lineup, but she could not identify anyone in the

        lineup as the man who attacked her. Skalkos viewed a photo array that included Richmond’s

        picture, but made no identification. Skalkos viewed a lineup in person on May 23, 2007. She

        tentatively identified Richmond as the man who grabbed her, but she said she felt unsure of

        the identification.

¶9          Prosecutors charged Richmond with three counts of aggravated criminal sexual assault of

        C.L. and one count of robbery. At the jury trial, C.L., Skalkos, and Luboff described the

        incidents of April 9, 2007. None of them identified Richmond in court as the man who

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          attacked them. A police officer who conducted the lineups testified that at the lineups held on

          May 23, 2007, Luboff had identified Richmond as the man who attacked her and Skalkos

          tentatively identified Richmond as the man who attacked her.

¶ 10         The prosecution presented a DNA expert who estimated the probability of a random

          match at the nine loci where Richmond’s DNA matched the DNA on the anal swab from

          C.L. For the estimate, the expert used the “product rule.” She took the proportion of profiles

          in the database with the alleles found in the sample at the first locus, multiplied that by the

          proportion of profiles in the database with the alleles found in the sample at the second locus,

          then multiplied that product by the proportion of profiles in the database with the alleles

          found in the sample at the third locus, and so on through all nine loci for which the sample

          provided an unambiguous reading. The expert said approximately 1 in 3.9 trillion black

          persons, 1 in 750 trillion white persons, and 1 in 1.8 quadrillion Hispanic persons would

          match the DNA profile at the nine loci.

¶ 11         The jury found Richmond guilty on three counts of aggravated criminal sexual assault

          and one count of robbery. The trial court sentenced Richmond to three terms of 18 years each

          for aggravated criminal sexual assault, to be served consecutively, and to a term of 7 years

          for robbery, to be served concurrently with the sexual assault sentences. This court affirmed

          Richmond’s convictions and sentences for sexual assault, but we vacated as void the

          concurrent sentence for robbery and remanded for resentencing. People v. Richmond, 2012

          IL App (1st) 100125-U. On remand, on March 20, 2013, the trial court imposed a three-year

          sentence for robbery, to be served consecutively to the sexual assault sentences.



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¶ 12                                       Postconviction Petition

¶ 13          On September 12, 2014, Richmond filed his pro se postconviction petition, in which he

          raised several issues regarding his trial. In support of his claim that he received ineffective

          assistance of trial counsel and appellate counsel, he attached to the petition several articles

          that challenged the use of the product rule to compute the likelihood that any person other

          than the defendant would have the same alleles as those found at the crime scene. According

          to one of the articles, a search of Arizona’s DNA database uncovered more than 120 nine-

          locus matches in a database of fewer than 66,000 profiles, and Illinois’s DNA database

          revealed 903 pairs that matched at nine loci, out of a database of about 220,000 DNA

          profiles.    Jason   Felch   &   Maura    Dolan,   FBI     Resists   Scrutiny   of   ‘Matches’,

          http://articles.latimes.com/2008/jul/20/local/me-dna20 (last accessed May 26, 2017). To

          phrase the findings from the Illinois database another way, the DNA of more than 1800 of

          the profiled persons matched the DNA of another profiled person at nine loci, in a database

          of only 220,000 profiles. Richmond appended a printout of a blog post in which a

          mathematician opined that the use of the product rule for estimating the probability of

          matches was “no better than alchemy,” “total nonsense,” and “a damned lie.” The

          mathematician said that admitting this testimony in court is “disgraceful” and that courts

          “may as well admit alchemy and astrology.” People v. Watson, 2012 IL App (2d) 091328,

          ¶ 28 (quoting David H. Kaye, Trawling DNA Databases for Partial Matches: What Is The

          FBI Afraid Of?, 19 Cornell J.L. & Pub. Pol’y 145, 148 (2009), quoting Keith Devlin,

          Damned Lies (Oct. 2006), http://www.maa.org/external_archive/devlin/devlin_10_06.html).




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¶ 14         The trial court entered a written order, dated November 21, 2014, addressing all of the

          issues Richmond raised. The court dismissed the petition as frivolous and patently without

          merit. Richmond now appeals.

¶ 15                                            ANALYSIS

¶ 16         In this appeal, Richmond addresses only two of the issues raised in his postconviction

          petition. He contends that his trial counsel provided ineffective assistance because counsel

          failed to request that the State determine the number of nine-locus matches in the Illinois

          DNA database, and he contends that his appellate counsel provided ineffective assistance by

          failing to raise the failure to request the DNA data as proof of ineffective assistance of trial

          counsel.

¶ 17         “To prevail on a claim of ineffective assistance *** a defendant must show both that

          counsel’s performance fell below an objective standard of reasonableness and that the

          deficient performance prejudiced the defense. [Citation.] At the first stage of postconviction

          proceedings under the Act, a petition alleging ineffective assistance may not be summarily

          dismissed if (i) it is arguable that counsel’s performance fell below an objective standard of

          reasonableness and (ii) it is arguable that the defendant was prejudiced.” (Internal quotation

          marks omitted.) People v. Hodges, 234 Ill. 2d 1, 17 (2009).

¶ 18         The DNA analyst who testified for the prosecution used the product rule to support the

          assertion that only one in 3.9 trillion black persons would have the same nine alleles that

          appeared on the swab of C.L., and Richmond has those nine alleles. According to the product

          rule, “the probability of the joint occurrence of a number of independent events is equal to

          the product of the individual probability of the occurrence of each event.” People v. Harbold,

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          124 Ill. App. 3d 363, 382 (1984). But when two events do not occur independently, if they

          have a positive correlation, “the product rule would inevitably yield a wholly erroneous and

          exaggerated result even if all of the individual components had been determined with

          precision.” (Internal quotation marks omitted.) People v. Collins, 438 P.2d 33, 39 (Cal. 1968)

          (en banc).

¶ 19         Our supreme court observed that when DNA evidence first came into use in court

          proceedings, some controversy arose over the use of the product rule. People v. Miller, 173

          Ill. 2d 167, 188 (1996). The Miller court said, “Some members of the scientific community

          originally argued that the product rule is flawed because it assumes that DNA fragments

          revealed by the DNA processing occur independently and that members of the racial groups

          represented by a database intermix within their groups at random without regard to religion,

          ethnicity or geography.” Miller, 173 Ill. 2d at 189. But the Miller court found that scientists

          had reached a consensus. “The concerns [about the use of the product rule] appear not to

          have been borne out by empirical studies. [Citation.] The most recent courts to consider the

          use of the product rule have concluded that it is a generally accepted statistical method for

          estimating the frequency of a DNA match.” Miller, 173 Ill. 2d at 189.

¶ 20         In the wake of Miller, Illinois courts have permitted DNA analysts to use the product rule

          to estimate the probability of a random match, without any further evidence as to whether a

          specific allele at a tested location actually occurs independently of the occurrence of another

          allele at a second tested location. Richmond contends that, at least arguably, counsel should

          have known about the nine-locus matches found in the Arizona database and counsel should



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          have sought similar information about nine-locus matches in the Illinois database to cast

          doubt on the astronomical odds of a random match asserted by the DNA analyst.

¶ 21         Richmond appended to his postconviction petition an article that explains that the

          occurrence of more than 120 nine-locus matches in the Arizona database broadly comports

          with the use of the product rule to estimate the frequency of random matches. Kaye, supra, at

          157. Kaye notes that when one compares every profile in a large database with all of the

          other profiles in the database, one makes such a large number of comparisons that even if the

          probability of a random match is less than one in a billion, the researcher should expect to

          find far more than 100 matches. Because Arizona’s database held 65,493 profiles, comparing

          each profile to all the other profiles amounted to “65,493 x 65,492/2 = 2,144,633,778”

          comparisons. Kaye, supra, at 157. The researcher looking for matches at 9 loci, when the

          database included readings on 13 loci for all profiles, could find a 9-locus match in

          “(13!)/(9!)(4!) = 715 distinct combinations of nine items out of thirteen” for each pair of

          profiles. Kaye, supra, at 157. Thus, the Arizona database produced “715 x 2,144,633,778

          comparisons, which gives us more than 1.53 x 10¹² opportunities to find some nine-locus

          matches.” Kaye, supra, at 157. If a nine locus match occurs randomly only once in 8 billion

          comparisons, one would expect (1.53 x 10¹²) / 8,000,000,000 matches, or about 200 matches.

          Since the Arizona search produced only 120 nine-locus matches, the odds predicted by the

          product rule appear generally in line with the data. Kaye reported that studies of databases in

          Australia and New Zealand showed that the product rule fit the observed numbers of matches

          reasonably well. Kaye, supra, at 163. The finding of 900 nine-locus matches in the Illinois

          database of more than 220,000 profiles also comports reasonably well with the product rule.

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¶ 22         Richmond relies primarily on People v. Wright, 2012 IL App (1st) 073106, as authority

          showing that his counsel arguably provided ineffective assistance. Before representing

          Wright, Wright’s attorney had, for a different client, requested the search Richmond requests

          here. A search of the Illinois database showed that out of more than 220,000 profiles, 1806

          matched another profile in the database at 9 loci. Wright, 2012 IL App (1st) 073106, ¶¶ 51,

          110. The director of the Illinois database had said, in another context, that nine-locus

          comparisons are “not true matches” and that “[i]t’s misleading to call them matches.” Wright,

          2012 IL App (1st) 073106, ¶ 109. The Wright court found no strategic reason to withhold the

          evidence of the matches found in the database and held that “[i]f the trial court had in front of

          it the information that a 9-loci search of the Illinois database had already been done, that it

          had revealed that close to 2,000 individuals had matched at 9 loci, and that the state’s own

          director of that database had concluded that 9-loci ‘matches’ were not, in fact, matches, there

          is a reasonable probability that it would have granted the defense’s motion to exclude the 9-

          loci analysis, which was the primary evidence against defendant.” Wright, 2012 IL App (1st)

          073106, ¶ 114.

¶ 23         In light of Kaye’s persuasive analysis, we find ourselves constrained to disagree with the

          Wright court. The evidence counsel failed to elicit in Wright, as here, showed that the

          220,000 profiles in the Illinois database included 1806 that matched another profile at 9 loci.

          The database allowed for 220,000 x 220,000/2 = 2.4 x 10,000,000,000 comparisons, each of

          which could match another profile at 9 loci in 715 ways, giving 17 x 10¹² chances for a nine-

          locus match. Finding only 900 such matches, or only about 1 match for every 20,000,000,000

          comparisons, generally supports the use of the product rule.

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¶ 24         We find that competent counsel could decide that evidence of the nine-locus matches in

          Illinois’s DNA database should not help his client, and introducing evidence of those

          matches might require the introduction of complex statistical calculations that could confuse

          jurors. Defense counsel at trial capably emphasized that the DNA analyst did not consider the

          sample a match for Richmond’s DNA because the sample did not produce a clear reading at

          all 13 locations. We hold that, in light of Kaye’s explanation, the failure to request another

          search of Illinois’s database for nine-locus matches does not arguably show that counsel

          failed to meet an objective standard of reasonableness in his representation or that the failure

          to request another search of Illinois’s database prejudiced Richmond. Accordingly, we affirm

          the dismissal of Richmond’s postconviction petition as patently without merit.

¶ 25                                           CONCLUSION

¶ 26         The evidence concerning nine-locus matches in the Illinois DNA database did not show

          that the product rule grossly misleads jurors about the likelihood of a random match. While

          researchers should continue searching databases for evidence concerning the dependence or

          independence of specific alleles at the tested loci, defense counsel’s failure to request another

          search of the Illinois database to challenge the use of the product rule does not, even

          arguably, show ineffective assistance of counsel. Accordingly, we affirm the dismissal of

          Richmond’s postconviction petition.

¶ 27         Affirmed.




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