- Associated Press - Wednesday, February 3, 2021

A man charged with murder can have access to the trade secrets of the company that makes the software being used to link his DNA to the killing, a New Jersey appeals court decided Wednesday.

It’s the first time a New Jersey court has addressed the use of probabilistic genotyping software, a new type of DNA analysis that the three-judge panel called “a profound shift in DNA forensics.” The ruling sent the case of Corey Pickett, who was charged in connection with a fatal shooting in Jersey City in 2017, back to the trial court for a hearing to assess the evidence’s credibility.

The TrueAllele software program, produced by Pittsburgh-based Cybergenetics Corp. Laboratory, uses an elaborate mathematical model to test low levels or complex mixtures of DNA from multiple sources. Instead of comparing a person’s DNA to genetic material from the broader population, it estimates the statistical probability that the person’s DNA is consistent with a given sample. According to Wednesday’s ruling, it hasn’t been used or scrutinized before in New Jersey.

Pickett and an alleged accomplice were charged with firing into a crowd of people, killing one person and injuring a 10-year-old girl. Evidence from two guns and a ski mask recovered from the shooting scene failed to meet the criteria for traditional DNA analysis, but Pickett was found to be a source of the DNA on one of the guns and the ski mask after prosecutors forwarded the samples to be analyzed using TrueAllele.

At an evidence hearing in 2019, Pickett’s attorneys filed a motion to see the program’s source code and related documentation but were eventually denied by the judge. At the hearing, Cybergenetics cofounder Dr. Mark Perlin testified the source code is considered a trade secret and that it could take a person hours to decipher just a few dozen of the roughly 170,000 lines contained in the program.



In Wednesday’s ruling, the appeals court called access to the source code imperative.

“Without scrutinizing its software’s source code - a human-made set of instructions that may contain bugs, glitches and defects - in the context of an adversarial system, no finding that it properly implements the underlying science could be realistically made,” they wrote.

The trial judge will issue a protective order to safeguard the materials and determine potential sanctions for violating it, which could include contempt charges, license suspension or other discipline.

Several groups filed supplemental briefs with the court, including the state Attorney General’s office, the American Civil Liberties Union and the Innocence Project. The Attorney General’s office wrote that access to the source code is unnecessary to determine the program’s general acceptance by the scientific community.

“The Innocence Project welcomes the court’s decision, which recognizes that meaningful and robust inquiry into scientific evidence before it is admitted into criminal proceedings is necessary for both fair trials and protection of the innocent,” the group said in an emailed statement.

A message seeking comment was left with the attorney general’s office.

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