December 20, 2021 at 2:58 p.m.
Forensic scientist testifies in Iliopoulos motion hearing
Oral ruling set for Feb. 17
Forensic scientist testifies in Iliopoulos motion hearing
By Jamie Taylor and Heather Schaefer-
Iliopoulos, 68, is serving a 14-year prison sentence, to be followed by 16 years extended supervision, on child enticement, false imprisonment and first-degree child sexual assault convictions.
He was charged after a child reported that he pulled her into a closet at the school in September 2019, groped and kissed her. He claims the child walked into the closet on her own and he physically ejected her after she did not leave on her own.
In June, assistant state public defender Jefren Olson filed a motion for post-conviction relief arguing that Iliopoulos did not get a fair trial because his attorney did not retain an expert to analyze key DNA evidence.
A hearing on the motion was held Nov. 11 before Oneida County circuit judge Michael Bloom. It featured testimony from Dr. Alan Friedman, Ph. D., a forensic DNA analyst who opined that the amount of saliva found on swabs taken from the child was not "consistent" with the allegation that the defendant kissed her upper chest and abdomen.
"Saliva was not detected on (the child's) upper chest swabs above her breasts or on the abdominal area below her breasts, or on her right thigh," Friedman wrote in a report detailing his findings. He also noted that the state crime lab uses a "very specific and highly sensitive test' for salivary amylase.
"This test has been shown to detect as little as 0,05pi3 of saliva," he wrote. "Given that (the child) alleged that she was kissed multiple times on the lips, upper chest, and abdominal area below her breasts over several minutes, it is surprising to me that saliva was not detected on swabs from anywhere on (her) body given that high sensitivity of the RSID test and those swabs were collected within 12 hours. Furthermore, Mr. Iliopoulos' version of events, where he pushed (the child) from the janitor's closet, is potentially consistent with the DNA evidence. Saliva was not detected, and the total amount of DNA recovered from the upper chest swab was 0,0109ng/pl, The total amount of DNA recovered was approximately the amount contained in 80 male cells. This is a very small amount of male DNA given the alleged kissing. This small amount of male DNA could easily have been transferred from Mr, Iliopoulos to (the child's) hands and from there to upper chest above the breast."
"In light of the questions raised by the DNA evidence when compared to Iliopoulos's conduct as described by (the child) and Iliopoulos's denials of (the child's) core allegations of contact, an adequate defense in this case required a full assessment of the evidentiary significance of the apparently powerful DNA evidence. Doing that required an independent analysis of the material documenting the crime lab's work," Olson argued in a written submission to the court. "Had trial counsel requested the DNA discovery and given it to an expert to review, he could have presented evidence like Friedman's and provided the jury with an alternative interpretation of the significance of the DNA evidence and supported an argument that it does not corroborate, and in fact arguably contradicts, the allegations made by (the child)."
As the Nov. 11 hearing ran too long for the state's DNA expert, state crime lab senior forensic scientist Samantha Delfosse, to offer testimony, the matter was continued until this month.
When the hearing resumed on Dec. 10, assistant district attorney Mary Sowinski asked Delfosse, who appeared via Zoom, about various situations involving the presence or absence of saliva on the skin of a crime victim.
"Is it possible to determine that someone was or was not kissed by the absence of saliva on your skin when that skin is swabbed after the alleged contact?" Sowinski asked.
"I would not be able to give a definite yes or no," Delfosse replied.
Sowinski then asked if there are variables that would affect how long saliva would remain on a crime victim's skin?
Delfosse testified that some factors include whether it was closed mouth kiss versus an open mouth kiss, if there was clothing that would make contact with the skin, and the amount of time that elapsed between the contact and the swabbing.
"Does, therefore, the absence of saliva mean the kissing didn't happen or take place?" Sowinski asked.
"No," Delfosse replied.
"If you have an allegation of oral contact, and you find saliva, that's a pretty strong inference that there was oral contact, right?" Olson asked during cross-examination.
"There would be a possibility, yes. But I couldn't be 100 percent sure," she replied.
Olson asked Delfosse for her opinion as to why Iliopoulos's DNA or saliva was found in some spots he allegedly kissed or touched but not on others.
"If there is a claim of a bodily substance and the saliva testing does not find that bodily substance, then that makes this more uncertain?" Olson asked Delfosse. "You agree?"
"In terms of how it got transferred?" Delfosse asked.
"It could be direct or indirect," Olson replied.
"Correct," she said.
"And indirect transfer is quite unpredictable," Olson noted. "It can leave DNA in all kinds of places and other people can pick it up from something without having direct physical contact with the source of the DNA?"
"It is possible, yes," Delfosse replied.
"Then, in your opinion, in this case, given what we know, the DNA found on the complaining witness's upper chest, which was identified as Mr. Iliopoulos', we know it was there but we don't know how it got there," Olson said.
"Correct," she replied.
After hearing from Delfosse, Bloom directed the attorneys to file briefs summarizing their arguments.
Olson has until Dec. 30 to file his submission and Sowinski has until Jan. 24 to file her reply. Olson will then have until Feb. 4 to file a reply.
Bloom said he would issue an oral ruling on Feb. 17.
Jamie Taylor may be reached via email at [email protected]. Heather Schaefer may be reached at [email protected].
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