IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT WHITESIDE COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, Plaintiff,

v. NICHOLAS T. SHELEY, Defendant. ) ) ) ) ) ) ) ) )

Case No. 08-CF-283

DEFENDANT'S SECOND MOTION TO CONTINUE NOW COMES Defendant, Nicholas T. Sheley, by and through his attorney, and respectfully requests a continuance of the present trial setting of June 11, 2012. In support of said motion, Defendant states as follows: 1. 2. Illinois. 3. Defendant's council now finds, despite his diligent efforts, that there Mr. Sheley is charged with multiple counts of first degree murder. Trial in this cause is scheduled to begin on June 11, 2012 in Morrison,

has been insufficient time to prepare a defense in this cause such that should Defendant be forced to trial on June 11, 2012 that his right to fair trial will be gravely compromised. 4. As the court is aware, Defendant has hired a DNA expert to undertake

an independent analysis of the DNA evidence and results by the Illinois Crime Lab. 5. The attached e-mail from this expert to counsel details the difficulties

that have occurred in obtaining the raw data from the Illinois Crime Lab necessary to undertake such an analysis.

6.

Defense counsel has notified the prosecution of the difficulties in

obtaining this material, and the prosecution has indicated that it will use its efforts to try obtain the necessary data. 7. Due to the busy trial schedule of Defendant's expert, even should this

material be provided on the date promised, it will leave insufficient time for the expert to review the material before trial and prepare council for either proper cross-examination of state's witnesses or direct examination of this expert as a witness. 8. The Defendant's expert will be unavailable to testify at trial until the

end of August 2012. WHEREFORE, for the foregoing reasons, Defendant Nicholas Sheley, by and through his attorney, respectfully requests that this Honorable Court enter an order providing the following relief: 1. 2. Continuing the current trial setting until an agreed upon date. Providing such other relief the Court deems appropriate. Respectfully submitted,

Jeremy S. Karlin One of Defendants Attorneys Dated: May 10, 2012

Jeremy S. Karlin ALCORN KARLIN LLC 313 E. Main Street P.O. Box 1516 Galesburg, Illinois 61402-1516 Tel: (309) 345-0000 Fax: (309) 345-0002 E-Mail: jkarlin@alcornkarlin.com

CERTIFICATE OF SERVICE The undersigned certifies that on the 10th day of May, 2012, I served a copy of the foregoing instrument upon: By: Gary Spencer Whiteside County State's Attorney Whiteside County Courthouse Morrison, Illinois 61270 Steve Nate William Elward Illinois Attorney General's Office 100 West Randolph Street Chicago, Illinois 60601 Michael L. Atterberry Illinois Attorney General's Office 500 South Second Street Springfield, Illinois 62706

___ ___ ___

U.S. Mail Hand Delivered Certified Mail

___ ___ X

FAX Overnight Courier Other: E-Mail

Jeremy S. Karlin Jeremy S. Karlin Attorney for Defendant ALCORN KARLIN LLC 313 E. Main Street Galesburg, IL 61401 Tel: 309 345 0000 Fax: 309 345 0002 E-Mail: jkarlin@alcornkarlin.com

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

Jeremy Karlin <jkarlin@alcornkarlin.com>

Sheley - Electronic DNA data

3 messages Jami Harman <jharman@genetictechnologies.com> To: Jeremy Karlin <jkarlin@alcornkarlin.com> Wed, May 9, 2012 at 9:59 AM

Jami Harman Scientific Director Genetic Technologies, Inc. P.O. 242 Glencoe, MO 63038-0242 877-451-4363 www.genetictechnologies.com

From: Jami Harman Sent: Tuesday, May 08, 2012 5:24 PM To: Jami Harman Subject: Sheley - Electronic DNA data

Jeremy,

As you know, in our pursuit of the electronic DNA data, we have experienced a few stumbling blocks. The first set of data received (April 10) was from evidence belonging to a different case than the Sheley case. I notified you of the error on April 11. On April 30, I notified you and the ISP lab analyst that the replacement disc (containing data from the correct case) was missing a Matrix File. On May 7, the ISP analyst contacted me by phone to inquire as to the material saved on the disc and whether I would be able to use the ISPs Genemapper Project and simply change the parameters to whatever would work for me in order to independently analyze the data, as the Project contains a matrix. I explained that it would be impossible to utilize the ISPs Genemapper Project to independently analyze the data, as the Project is akin

1 of 9

5/10/2012 6:00 AM

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

to a PDF..the contents of the Project cannot be edited any more than a Word document can be changed after being saved as a PDF. I further explained that the lab would need to start saving data in a format that would allow independent analysis to be conducted for future Rule 417 productions.

The analyst explained that she was having difficulty locating the matrix files for the multiple analysis dates for this data. She anticipated being able to provide the matrix files by Friday of this week (May 11). I let her know that at this juncture, the lack of matrix files would preclude me from being able to complete my review and be prepared for a mid-June trial and as such, I would have to notify the defense attorney that we would need a continuance.

The analysis of electronic DNA data is conducted through the use of fluorescently tagged DNA fragments and the subsequent application of specific software to measure these fragments. Sections of DNA from various chromosomes are tagged with different colored fluorescent dyes, hence each dye color is representative of DNA fragments of variable lengths from specific locations on the DNA molecule. The length of each fragment within a dye color is representative of a DNA type. Although each dye emits its maximum fluorescence at a different wavelength, there is some overlap in the emission spectra between the dyes. As such, we must have a mechanism in place to measure this spectral overlap. This mechanism is called a Matrix File. Application of a Matrix file allows us to differentiate between true DNA fragments or DNA types versus spectral overlap which causes non-DNA elements to appear as true DNA fragments or types.

A Matrix File is unique and is created for a specific genetic analyzer with a particular set of run conditions and although it may be used for varying lengths of time, it must be replaced periodically. Each DNA laboratory applies a unique matrix to each genetic analyzer in the laboratory.a matrix is not interchangeable, i.e., a matrix from one instrument within a laboratory cannot be used interchangeably with genetic data from another instrument within the laboratory or between laboratories. Although DNA data may be copied to a disc and subsequently analyzed in another laboratory using the same software program, the data cannot be analyzed without the matrix file specific to the genetic analyzer upon which the evidence was analyzed. In other words, if an evidentiary item is analyzed on a specific genetic analyzer (with a specific matrix), the genetic data produced by that genetic analyzer can only be analyzed by using the matrix file specific to that genetic analyzer.

As stated above, the ISP laboratory is having difficulty in locating the matrix files that are required for independent analysis of the electronic data. Although the matrices are embedded in the ISPs saved electronic data Projects, we cannot use their Projects to independently analyze the data. Data Projects are similar to PDF filesthey represent the data after it has been manipulated (analyzed) and saved in a format specific to a laboratorys internal protocols, i.e., it is formatted as a Polaroid snapshot, frozen in time rather than as a digital image that can be examined by rotating, cropping or enlarging the image so as to view it from multiple angles. Data saved in a Project is not representative of the data in its original, unanalyzed state (as it was at the time the ISP analyst retrieved it from the instrument). An added factor of difficulty

2 of 9

5/10/2012 6:00 AM

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

with the Matrix issue is that the evidence from this case was tested over a period of time (and possibly upon different genetic analyzers) which means the matrix file(s) would have changed, thus they must locate more than one matrix file.

I sincerely apologize, however in that I have two cases that must be completed by June 1, one of which is in trial the week of June 1, as well as out of state travel for another case which will entail at least 4 business days between now and the Sheley trial, I will not at this juncture be able to complete the analysis and adequately prepare you for trial for the Sheley case by the currently scheduled mid-June trial date.

Please feel free to call me to discuss further.

Jami Harman Scientific Director Genetic Technologies, Inc. P.O. 242 Glencoe, MO 63038-0242 877-451-4363 www.genetictechnologies.com

From: Jeremy Karlin [mailto:jkarlin@alcornkarlin.com] Sent: Monday, April 30, 2012 1:50 PM To: Jami Harman Subject: Re: Sheley - Electronic DNA data

Thanks jk On Mon, Apr 30, 2012 at 1:18 PM, Jami Harman <jharman@genetictechnologies.com> wrote: Jeremy,

Yet another problem with the data. In order to analyze the data, we must have something

3 of 9

5/10/2012 6:00 AM

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

called a Matrix File. Because of software and instrument changes, the matrix was not included on the disc. I decided to contact the laboratory analyst directly in order to save time. She said she would look into it and send what I need. Will be in touch to let you know when I receive it.

Jami Harman Scientific Director Genetic Technologies, Inc. P.O. 242 Glencoe, MO 63038-0242 877-451-4363 www.genetictechnologies.com

-Jeremy S. Karlin Alcorn Karlin LLC 313 E. Main Street, P.O. Box 1516 Galesburg, Illinois 61402-1516 Tel: (309) 345-0000 Fax: (309) 345-0002 CONFIDENTIALITY NOTICE: This e-mail message, including attachments if any, is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. If you are the intended recipient, but you do not wish to receive communications through this medium, please so advise the sender immediately.

Jeremy Karlin <jkarlin@alcornkarlin.com> To: Jami Harman <jharman@genetictechnologies.com>

Wed, May 9, 2012 at 2:12 PM

If you got the data on Friday, by when can you be ready to prep me and what is your trial schedule in August on? Sent from my iPhone On May 9, 2012, at 9:59 AM, Jami Harman <jharman@genetictechnologies.com> wrote:

4 of 9

5/10/2012 6:00 AM

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

<image001.jpg> Jami Harman Scientific Director Genetic Technologies, Inc. P.O. 242 Glencoe, MO 63038-0242 877-451-4363 www.genetictechnologies.com

From: Jami Harman Sent: Tuesday, May 08, 2012 5:24 PM To: Jami Harman Subject: Sheley - Electronic DNA data

Jeremy,

As you know, in our pursuit of the electronic DNA data, we have experienced a few stumbling blocks. The first set of data received (April 10) was from evidence belonging to a different case than the Sheley case. I notified you of the error on April 11. On April 30, I notified you and the ISP lab analyst that the replacement disc (containing data from the correct case) was missing a Matrix File. On May 7, the ISP analyst contacted me by phone to inquire as to the material saved on the disc and whether I would be able to use the ISPs Genemapper Project and simply change the parameters to whatever would work for me in order to independently analyze the data, as the Project contains a matrix. I explained that it would be impossible to utilize the ISPs Genemapper Project to independently analyze the data, as the Project is akin to a PDF..the contents of the Project cannot be edited any more than a Word document can be changed after being saved as a PDF. I further explained that the lab would need to start saving data in a format that would allow independent analysis to be conducted for future Rule 417 productions.

The analyst explained that she was having difficulty locating the matrix files for the multiple analysis dates for this data. She anticipated being able to provide the matrix files by Friday of this week (May 11). I let her know that at this juncture, the lack of matrix files would preclude me from being able to complete my review and be prepared for a mid-June trial and

5 of 9

5/10/2012 6:00 AM

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

as such, I would have to notify the defense attorney that we would need a continuance.

The analysis of electronic DNA data is conducted through the use of fluorescently tagged DNA fragments and the subsequent application of specific software to measure these fragments. Sections of DNA from various chromosomes are tagged with different colored fluorescent dyes, hence each dye color is representative of DNA fragments of variable lengths from specific locations on the DNA molecule. The length of each fragment within a dye color is representative of a DNA type. Although each dye emits its maximum fluorescence at a different wavelength, there is some overlap in the emission spectra between the dyes. As such, we must have a mechanism in place to measure this spectral overlap. This mechanism is called a Matrix File. Application of a Matrix file allows us to differentiate between true DNA fragments or DNA types versus spectral overlap which causes non-DNA elements to appear as true DNA fragments or types.

A Matrix File is unique and is created for a specific genetic analyzer with a particular set of run conditions and although it may be used for varying lengths of time, it must be replaced periodically. Each DNA laboratory applies a unique matrix to each genetic analyzer in the laboratory.a matrix is not interchangeable, i.e., a matrix from one instrument within a laboratory cannot be used interchangeably with genetic data from another instrument within the laboratory or between laboratories. Although DNA data may be copied to a disc and subsequently analyzed in another laboratory using the same software program, the data cannot be analyzed without the matrix file specific to the genetic analyzer upon which the evidence was analyzed. In other words, if an evidentiary item is analyzed on a specific genetic analyzer (with a specific matrix), the genetic data produced by that genetic analyzer can only be analyzed by using the matrix file specific to that genetic analyzer.

As stated above, the ISP laboratory is having difficulty in locating the matrix files that are required for independent analysis of the electronic data. Although the matrices are embedded in the ISPs saved electronic data Projects, we cannot use their Projects to independently analyze the data. Data Projects are similar to PDF filesthey represent the data after it has been manipulated (analyzed) and saved in a format specific to a laboratorys internal protocols, i.e., it is formatted as a Polaroid snapshot, frozen in time rather than as a digital image that can be examined by rotating, cropping or enlarging the image so as to view it from multiple angles. Data saved in a Project is not representative of the data in its original, unanalyzed state (as it was at the time the ISP analyst retrieved it from the instrument). An added factor of difficulty with the Matrix issue is that the evidence from this case was tested over a period of time (and possibly upon different genetic analyzers) which means the matrix file(s) would have changed, thus they must locate more than one matrix file.

I sincerely apologize, however in that I have two cases that must be completed by June 1, one of which is in trial the week of June 1, as well as out of state travel for another case which will entail at least 4 business days between now and the Sheley trial, I will not at this juncture be able to complete the analysis and adequately prepare you for trial for the Sheley

6 of 9

5/10/2012 6:00 AM

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

case by the currently scheduled mid-June trial date.

Please feel free to call me to discuss further.

<image002.jpg> Jami Harman Scientific Director Genetic Technologies, Inc. P.O. 242 Glencoe, MO 63038-0242 877-451-4363 www.genetictechnologies.com

From: Jeremy Karlin [mailto:jkarlin@alcornkarlin.com] Sent: Monday, April 30, 2012 1:50 PM To: Jami Harman Subject: Re: Sheley - Electronic DNA data

Thanks jk On Mon, Apr 30, 2012 at 1:18 PM, Jami Harman <jharman@genetictechnologies.com> wrote: Jeremy,

Yet another problem with the data. In order to analyze the data, we must have something called a Matrix File. Because of software and instrument changes, the matrix was not included on the disc. I decided to contact the laboratory analyst directly in order to save time. She said she would look into it and send what I need. Will be in touch to let you know when I receive it.

<image002.jpg> Jami Harman Scientific Director

7 of 9

5/10/2012 6:00 AM

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

Genetic Technologies, Inc. P.O. 242 Glencoe, MO 63038-0242 877-451-4363 www.genetictechnologies.com

-Jeremy S. Karlin Alcorn Karlin LLC 313 E. Main Street, P.O. Box 1516 Galesburg, Illinois 61402-1516 Tel: (309) 345-0000 Fax: (309) 345-0002 CONFIDENTIALITY NOTICE: This e-mail message, including attachments if any, is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. If you are the intended recipient, but you do not wish to receive communications through this medium, please so advise the sender immediately.

Jami Harman <jharman@genetictechnologies.com> To: Jeremy Karlin <jkarlin@alcornkarlin.com>

Wed, May 9, 2012 at 3:41 PM

If I receive the matrix file by Friday, May 11, I should be able to complete my review no later than July 13 (barring any unexpected rush casework or casework requiring International travel).

I am booked solid until the last week of August (week of 27th).

Jami Harman Scientific Director

8 of 9

5/10/2012 6:00 AM

Alcorn Karlin LLC Mail - Sheley - Electronic DNA data

http://mail.google.com/mail/?tf=1&ui=2&ik=b31d699e1b&view=pt&sea...

Genetic Technologies, Inc. P.O. 242 Glencoe, MO 63038-0242 877-451-4363 www.genetictechnologies.com

From: Jeremy Karlin [mailto:jkarlin@alcornkarlin.com] Sent: Wednesday, May 09, 2012 2:12 PM
[Quoted text hidden] [Quoted text hidden]

9 of 9

5/10/2012 6:00 AM