The Role Of Alleged Trade Secret Forensic Evidence In The Amanda Knox Murder Case

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http://blogs.orrick.com/trade-secrets-watch/files/2013/11/8Nov13-Resized-200x150.jpgLast week, Sen. Maria Cantwell and Rep. Adam Smith, both Washington Democrats, convened a Congressional briefing to discuss the ongoing murder case against Amanda Knox, the 26-year-old University of Washington foreign exchange student who was convicted in Italy of brutally murdering her 21-year-old British roommate, Meredith Kercher. The highly publicized and polarizing story of Kercher’s gruesome murder is stomach-churning and heartbreaking, especially for trade secret lawyers who are more accustomed to discussing source code and customer lists. Yet there is a trade secret component to this case. Boise State University, the employer of one of Knox’s consulting technical experts, is holding back relevant DNA analysis research on the grounds that it is a trade secret.

The 2009 Amanda Knox trial lasted almost a year, and included dozens of witnesses, forensic expert testimony, and hotly contested claims about the alibis and motives of Knox and her then-boyfriend and Italian co-defendant, Raffaele Sollecito. According to court documents, the forensic evidence included footprints, DNA traces, and a kitchen knife found at Sollecito’s apartment. Italian prosecutors alleged that the knife was the murder weapon, saying Kercher’s DNA was on the blade, and Knox’s DNA was on the handle. After an 11-month trial, the eight-person Italian jury found Knox and Sollecito guilty. Another man, Rudy Guede, was convicted in a separate fast-track trial for his involvement in Kercher’s murder.

Knox filed an appeal in April 2010, and the Court of Assizes of Appeal of Perugia overturned her conviction in October 2011, after she had already served four years in prison. But Knox’s victory was short-lived. The Italian Supreme Court reversed that intermediate appellate ruling in March 2013, citing irregularities and oversights, and ordered a third trial of Knox that began on September 30, 2013.

Knox’s lawyers assembled a team of DNA experts to provide research and analysis to aid Knox’s defense. The best-known expert was Greg Hampikian, a biology and criminal justice professor at Boise State University. Hampikian is also the director and a founding member of the Idaho Innocence Project headquartered at BSU. Hampikian used the platform of the Innocence Project to advocate for Knox’s innocence. In November 2009, Hampikian, along with another Knox defense expert named Elizabeth Johnson, circulated an open letter and petition arguing why the DNA evidence obtained in the Knox case failed to establish credibly that Knox was the murderer. In the four years following circulation of that letter, Hampikian gave countless presentations and made numerous statements to media outlets, explaining why he believed the DNA evidence from the crime scene conclusively proved that Knox was innocent. He often headlined his lectures with provocative titles such as: “I know what happened” and “How science freed an innocent woman … and how bad science multiplied the victims of a terrible tragedy.”

Andrea Vogt, an intrepid American reporter based in Italy, tried to peel back the layers behind Hampikian’s numerous claims about how his forensic research helped free Amanda Knox. But when Vogt plowed through Italian court documents to find the evidence to back up Hampikian’s public statements about his direct involvement influencing the process, she came up empty. According to Trade Secrets Watch’s own review of the Italian court records, that’s because Hampikian did not submit any expert reports or provide written or oral testimony in any of the Italian appeal proceedings.

Undaunted, Vogt decided to go directly to the source. In February 2012, she sent an Idaho Public Records Law request to Boise State University, seeking all emails sent from Hampikian’s email account using certain key words (including Amanda Knox, the names of the judges involved in the case, and the names of the independent forensic experts who assessed the DNA evidence) to verify whether Hampikian had communications with the Italian judges and court-appointed forensic experts, and if so, to determine the nature of those communications. The request also sought all emails between Hampikian and Knox’s Italian lawyer, as well as copies of all consulting agreements for Hampikian.

BSU objected to the request in its entirety, asserting that the documents fell within enumerated exemptions to Idaho’s Public Records or Freedom of Information Act. BSU asserted claims of Public Records Law exemptions for attorney client privilege, trade secrets, unpublished academic research papers, and confidential employee personnel records. In articulating the basis for its trade secret objection, BSU provided a two-sentence explanation, parroting the words of the Idaho Public Records Law exemption for trade secrets:

[T]he product of Dr. Hampikian’s work on Ms. Knox’s defense constitutes unpublished information that is not readily ascertainable and has been the subject of reasonable efforts to maintain its private nature. Such information is of potential economic value and is thus recognized as a trade secret under Idaho Code Section 9-340(D)(1). So the records you are requesting are exempt from public disclosure under that exemption as well.

Idaho’s Public Records Law trade secret exemption prohibits disclosure of state records that contain information that “(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use,” and “(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”  This exemption is based on the definition of a trade secret under the Idaho Uniform Trade Secret Act. Notably, however, the Public Records Law exemption is somewhat broader than the Idaho Trade Secret Act, and expands the definition of trade secrets to include “unpublished or in progress research.”  BSU appeared to use the “unpublished research” hook in asserting trade secret protection for Hampikian’s work on the Knox case.

BSU’s claim of trade secret protection here seems hard to reconcile with the fact that Vogt’s Public Records Law request would encompass emails and communications between Hampikian and third parties like the Italian judges and court-appointed experts. Communications with judges and court officials would generally not be secret, and thus would not meet the requirement that the information be “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”  It’s possible that Hampikian’s communications with Knox’s defense lawyers could have contained some unpublished research, but for the information to qualify as a trade secret the lawyers would have had to be under a duty not to disclose the information—again somewhat questionable given that they would want latitude to use the helpful positive results of their consulting expert’s work in defense of their client.

To the extent BSU’s trade secret objection is to protect unpublished research that was not contained in the communications disclosed to third parties, it’s certainly true that claiming trade secret protection over unpublished university research is not novel and has support in the case law. Trade secrets may include ongoing scientific research, for example if they confer a competitive advantage on companies in the development of new and innovative products. And academic institutions like BSU have successfully established the potential economic and competitive value of unpublished scientific research to professors and other university employees under certain circumstances.

But could BSU credibly claim that Hampikian’s widely touted forensic research on Knox’s behalf is really a secret?  It appears that Hampikian publicized at least some of his research, opinions, and conclusions concerning “casual transfer” of DNA evidence from one object to another. In one of his numerous interviews describing his research and experiments, Hampikian explained in detail how he and his team at the Innocence Project were reportedly able to discredit as tainted the DNA evidence offered against Knox at trial:

“We replicated those conditions [from the murder crime scene investigation] in my laboratory at Boise State University. In my lab, the team took knives from the Dollar Store. They collected coke cans from the office staff at the dean’s office, and I told them don’t change your gloves between every piece of evidence, do it between every other piece of evidence. And what happened is DNA from innocent staff people in the dean’s office got onto their gloves, got transferred to the knives, and when we swabbed the knives when we looked at those very low levels like they did in the Amanda Knox case, you start to see contamination,” said Hampikian.

Rather than trying to keep his research secret “using efforts that are reasonable under the circumstances to maintain its secrecy,” Hampikian has promoted and has taken credit for the role that his Innocence Project and research played in Knox’s successful appeal.

While Hampikian’s public statements about his research may undercut BSU’s claims that reasonable efforts are or were being taken to maintain its secrecy, there is no way to validate that without litigating the issue in court. The time period for Andrea Vogt to file suit against BSU to compel a response to her Public Records Law request has passed, so that issue may go unresolved unless someone else makes the records request and takes on the effort of litigating the issue.

Even assuming that some of Hampikian’s forensic research remains unpublished and that reasonable efforts are currently being used to maintain its secrecy, there’s a more fundamental question of how that research would have independent economic value as a result of being secret. BSU would have to explain how research that is intended to be used in a public criminal proceeding has value in not being generally known. At the end of the day, it seems ironic that an organization whose mission is to uncover the facts and advocate for the wrongfully accused would prefer secrecy over the cold light of truth.