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An ex-San Francisco deputy public defender took the witness stand Tuesday to try to help his former colleagues pry more DNA discovery from prosecutors and the San Francisco crime lab. If they had more than the standard discovery package, defense lawyers could have the ammunition to challenge the admissibility of the evidence or impeach witnesses at trial, testified Michael Burt, who now focuses on death penalty cases and forensics in private practice. His testimony opened a hearing to determine if defendants trying to fight DNA evidence in about a dozen criminal cases are entitled to more discovery. The outcome could affect more than just the cases at hand. San Francisco Superior Court Judge Mary Morgan has indicated she may issue a standing order, which would presumably apply to all DNA cases in San Francisco Superior Court. The defense wants to look at more documents, including maintenance records for lab machinery, logs noting contamination or other “unexpected occurrences,” internal studies, and records related to annual lab audits and analysts’ proficiency tests. To make a case as to why defendants need the information, Deputy Public Defender Bicka Barlow presented Burt as an expert in DNA litigation. He testified that fodder from a lab’s internal studies could be used to impeach a lab expert on the stand, or to challenge the lab’s testing procedures as unsound. If a lab analyst testified that a small amount of DNA was enough for testing, a defense attorney could see if the lab’s own studies backed up that claim, or contradicted it, Burt said. Similarly, if defense lawyers can see all of the notes on an analyst’s proficiency exams, they may turn up something to undermine the evidence even if the analyst didn’t fail, Burt said. To buttress that assertion, he read from a file he received as discovery in another case. The document indicated an unnamed San Francisco analyst passed, but a supervisor’s comments offered a nuanced critique that called the overall work product “unsatisfactory,” according to Burt’s testimony. In another dramatic example, Burt read from a record he got in one case noting that a storage unit designed to keep evidence cool had malfunctioned, with the evidence in it. Barlow closed by asking Burt if he had gotten discovery like she is seeking from other labs, or in the past. “Yes, in every case I’ve litigated, I think,” he replied. Assistant District Attorney Braden Woods appeared to try to paint Burt’s experience as outdated. He started by eliciting that Burt’s testimony was based on only a few cases, and that none was in San Francisco since the crime lab’s current management took over. Woods and Burt faced off in another DNA battle in 1999. San Francisco Superior Court Judge Robert Dondero said that documents in that challenge suggested the crime lab was “in disarray.” He said Alan Keel, who then headed the lab’s DNA testing, was biased and “lacks the appropriate academic background.”

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