25073 – July 25th 2002 -Transcript of David Westerfield Trial Day 23 – afternoon 2

TRIAL DAY 23 – PART 3- afternoon 2


SAN DIEGO, CALIFORNIA, THURSDAY, JULY 25, 2002, (afternoon 2)


WITNESS:
William C. Rodriguez (Forensic anthropologist, testified about bugs and misc. – Examination and cross continued)


8764

1 (AT 2:45 P.M. OUT OF THE PRESENCE OF THE
JURY THE FOLLOWING PROCEEDINGS WERE HAD:)
2

3 THE COURT: IN THE WESTERFIELD MATTER, THE RECORD WILL

4 REFLECT THE APPEARANCE OF COUNSEL AS WELL AS MEMBERS OF THE

5 MEDIA.

6 LADIES AND GENTLEMEN OF THE MEDIA, I HAVE RECEIVED

7 NUMEROUS NOTES WONDERING WHY WE HAVE BEEN SO SECRETIVE, AND TO

8 USE A TERM THAT HAS BEEN BANTERED ABOUT BY COUNSEL FOR THE

9 MEDIA, WHY WE HAVE BEEN ENGAGED IN SECRET SESSION. I COULD SAY

10 IT’S BECAUSE WE’VE BEEN DRINKING COFFEE AND EATING DONUTS AND WE

11 JUST DIDN’T WANT THE PUBLIC TO KNOW ABOUT IT BUT, UNFORTUNATELY,

12 IT’S MORE SERIOUS THAN THAT.

13 YESTERDAY AFTERNOON THE COURT EXPERIENCED A SERIOUS

14 BREACH IN THE INTEGRITY OF THIS TRIAL. A PERSON WHO HAS BEEN

15 DESCRIBED, BUT AS YET IS NOT IDENTIFIED, FOLLOWED TWO OF THE

16 JURORS IN THIS CASE TO WHERE THEY PARK THEIR CARS AND WROTE DOWN

17 THERE LICENSE NUMBERS. AT THIS POINT IN TIME I DON’T KNOW WHO’S

18 RESPONSIBLE FOR THIS, BUT ONE CAN WELL IMAGINE THAT WITH THE

19 MEDIA COVERAGE THAT WE HAVE HAD, WHERE THE SOURCE OF THAT

20 INDIVIDUAL MAY LIE.

21 MY ONE AND ONLY CONCERN IN THIS CASE IS THAT MR.

22 WESTERFIELD GETS A FAIR TRIAL BEFORE 12 JURORS WHO ARE GOING TO

23 MAKE A DECISION BASED SOLELY ON THE EVIDENCE THEY SEE AND HEAR

24 IN THIS COURTROOM UNINTIMIDATED BY ANY OUTSIDE SOURCE.

25 I HAVE BEEN MEETING WITH MY JURY TO KEEP THEM FULLY

26 APPRISED OF WHAT IS GOING ON AND THE CONCERNS OF THE COURT.

27 YESTERDAY I SAW MYSELF REPEATEDLY SAYING SOMETHING

28 THAT I’M GOING TO SAY AGAIN. I LIKE TO THINK AND DO BELIEVE

8765

1 THAT THE PEOPLE THAT ARE IN HERE ON A DAILY BASIS ARE NOT THE

2 SOURCE OF THE PROBLEM. BUT AT THIS POINT IN TIME I DON’T KNOW

3 WHO THIS INDIVIDUAL IS, I DON’T KNOW WHAT HIS MOTIVATION IS, I

4 DON’T KNOW WHY HE WOULD FOLLOW THESE JURORS AND GET PRIVATE

5 INFORMATION. BUT I AM TELLING ALL OF YOU RIGHT NOW ONE THING.

6 IF IT HAPPENS AGAIN THE TELEVISION CAMERA GOES, THE STILL CAMERA

7 GOES, THE LIVE RADIO INPUT IS OFF.

8 THIS IS SERIOUS. I WILL NOT TOLERATE IT. SO FOR

9 THOSE OF YOU THAT HAVE COLLEAGUES THAT MAY OR MAY NOT BE

10 INVOLVED IN THIS, OR FOR THOSE OF YOU THAT HAVE CREWS THAT ARE

11 AVAILABLE, AND SEE CONDUCT ON THE PART OF INDIVIDUALS THAT YOU

12 KNOW WITHIN THE MEDIA COMMUNITY ARE ATTEMPTING TO LOCATE AND

13 FOLLOW THESE PEOPLE, IT IS IN YOUR OWN BEST INTEREST TO DO

14 SOMETHING ABOUT IT. BECAUSE I CAN ASSURE YOU AS I’M SITTING

15 HERE RIGHT NOW, IF THERE IS ANOTHER INCIDENT OF THIS KIND OF

16 CONDUCT, IT’S ALL SHUT OFF.

17 NOW, I’M GETTING E-MAIL FROM PEOPLE SAYING THE

18 PEOPLE HAVE A RIGHT OF ACCESS TO THIS COURTROOM. THE PEOPLE ARE

19 HERE. THIS IS A COURTROOM THAT IS OPEN TO THE PUBLIC. THIS

20 CASE IS BEING TRIED IN FRONT OF THE PUBLIC. THE PUBLIC AT

21 LARGE, THE MILLIONS OF PEOPLE THAT MIGHT BE WATCHING THIS DO NOT

22 HAVE A CONSTITUTIONAL RIGHT TO SEE THIS TRIAL.

23 I HAVE A RIGHT TO CONDUCT MY COURTROOM IN THE WAY I

24 THINK IS IN THE BEST INTEREST. AND IN THIS CASE THE BEST

25 INTEREST OF THIS MAN, THE ACCUSED, AND OF 18 PEOPLE IN THIS

26 COMMUNITY, IS THAT IF I HAVE ONE MORE INCIDENT LIKE THIS I’M

27 CUTTING YOU OFF. AND AGAIN, I APOLOGIZE BECAUSE I THINK THE

28 PEOPLE THAT ARE HERE ARE NOT THE PROBLEM. BUT I’M NOT GOING TO

8766

1 TOLERATE THIS KIND OF CONDUCT.

2 ALL RIGHT. LET’S GET THE JURY IN.

3 (AT 2:50 P.M. THE JURY ENTERED THE COURTROOM
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
4

5 THE COURT: OKAY. WELCOME BACK, LADIES AND GENTLEMEN.

6 ALL RIGHT. MR. FELDMAN.

7 MR. FELDMAN: THANK YOU, YOUR HONOR.

8 Q.: CAN YOU TELL ME, SIR, WITH REGARD TO WINDS, WHAT

9 WERE THE WIND CONDITIONS IN THE FIRST PART OF FEBRUARY IN SAN

10 DIEGO IN THE DEHESA AREA?

11 A.: I DO NOT RECALL OFFHAND.

12 Q.: WELL, WHO TOLD YOU WHAT THE WINDS WERE, SIR, IF

13 ANYONE?

14 A.: NOBODY SPECIFICALLY TOLD ME. WHAT I LOOKED AT IS

15 THE METEOROLOGIC DATA FROM NUMEROUS STATIONS.

16 Q.: RIGHT. BUT THE METEOROLOGICAL DATA FROM MANY OF

17 THE STATIONS THAT WE’VE SEEN IN COURT DON’T ADDRESS WHEN, THEY

18 ONLY ADDRESS HOURLY TEMPERATURES. IN SOME INSTANCES THEY

19 ADDRESS MAXIMUMS AND MINIMUMS. THERE’S ONE FROM SINGING HILLS

20 THAT ADDRESSES THE WIND I THINK BUT NOTHING ELSE.

21 DID YOU REVIEW SOMETHING ELSE?

22 A.: I DID REVIEW THE SINGING HILLS AND, OF COURSE,

23 THEIR INSTRUMENT WAS INOPERABLE AS A RESULT OF THE GOLF BALL,

24 AND I DO RECALL LOOKING AT A METEOROLOGICAL REPORT. I DON’T

25 RECALL EXACTLY WHICH STATION, BUT IT BASICALLY SHOWS WIND

26 CONDITIONS AND MILES PER HOUR TO KILOMETERS PER HOUR.

27 Q.: DO YOU REMEMBER WHICH METEOROLOGIC STATION IT WAS?

28 A.: NO, SIR, I DON’T.

8767

1 Q.: SO YOU DON’T KNOW WHETHER IT WAS LINDBERG FIELD,

2 FOR INSTANCE, OR BROWN FIELD?

3 A.: I CAN’T RECALL WHICH FIELD IT WAS.

4 Q.: DOES IT MAKE ANY DIFFERENCE WHAT THE ALTITUDE IS —

5 LET ME WITHDRAW THAT.

6 YOU TOLD US WITH REGARD TO SOME OF YOUR REVIEW OF

7 DOCUMENTS YOU WERE REVIEWING MAPS?

8 A.: THAT’S CORRECT.

9 Q.: WERE YOU REVIEWING TOPOGRAPHIC MAPS?

10 A.: I LOOKED AT ONE MAP AND MAY HAVE BUT SOME — A

11 LITTLE BIT OF TOPOGRAPHIC BUT NOT MUCH.

12 Q.: FOR PURPOSES OF YOUR CALCULATIONS OF THE POSTMORTEM

13 INTERVAL, DOES ELEVATION MAKE A DIFFERENCE?

14 A.: ELEVATION IS MORE IMPORTANT IN A ENTOMOLOGICAL

15 SETTING VERSUS A GROSS DECOMPOSITIONAL SETTING.

16 Q.: ALL RIGHT.

17 A.: I BELIEVE IT’S MY UNDERSTANDING THAT THE BROWN

18 FIELD — AND I DON’T RECALL THE EXACT ELEVATION, BUT I

19 UNDERSTAND IT WAS FAIRLY REPRESENTATIVE OF THE SITE WHERE THE

20 DECEASED WAS FOUND.

21 Q.: OKAY.

22 IN YOUR REPORT, SIR, IS IT FAIR TO SAY THAT YOU

23 CONCLUDED THAT — WELL, I’LL SAY THAT A DIFFERENT WAY.

24 IS IT FAIR TO SAY THAT YOU CONCLUDED THAT THERE WAS

25 A UNIQUE STATE OF MUMMIFICATION OF THE BODY?

26 A.: THAT IS CORRECT.

27 Q.: AND THE WORD "UNIQUE," DO YOU MEAN THAT TO

28 COMMUNICATE RARE OR UNUSUAL?

8768

1 A.: NO. IT’S A CASE BASICALLY WHERE YOU HAVE A

2 SITUATION WHERE YOU GET VERY RAPID MUMMIFICATION.

3 Q.: I’M ASKING YOU JUST HOW YOU USED THE WORD "UNIQUE."

4 THAT WAS THE CALL OF MY QUESTION, SIR?

5 A.: I DID, YES.

6 Q.: AND WITH REGARD TO THE REASON, DIDN’T YOU INDICATE

7 THAT THE UNIQUE STATE OF MUMMIFICATION OF THE BODY IS THE RESULT

8 OF UNUSUALLY WARM DAYTIME TEMPERATURES? PAGE ONE.

9 A.: YES. THAT’S CORRECT.

10 Q.: DIRECTING YOUR ATTENTION TO THE CHART BEHIND YOU,

11 WHICH IS 169, DO YOU KNOW WHETHER OR NOT THE 1ST THROUGH THE 6TH

12 OF FEBRUARY REPRESENTED UNUSUALLY WARM TEMPERATURES IN OUR

13 COMMUNITY?

14 A.: WHEN I LOOKED AT THE METEOROLOGICAL DATA, AND I HAD

15 TO EVEN CALL SOME UP ON THE COMPUTER, AND I DON’T RECALL THE

16 SPECIFIC DIFFERENTIAL, BUT BASED ON LOOKING AT THE GENERAL

17 AVERAGES, SINCE WE’RE DEALING WITH SO MANY FIELDS AND WE DON’T

18 HAVE, YOU KNOW, EXACT THAT THE TEMPERATURES DID APPEAR WARMER

19 THAN USUAL.

20 Q.: SO YOU FORMED THE OPINION, AND YOUR OPINION IS

21 BASED UPON YOUR CONCLUSION, THAT WE HAD UNUSUALLY WARM DAYTIME

22 TEMPERATURES, CORRECT?

23 A.: THAT’S CORRECT.

24 Q.: AND WHEN I SAY "WE," I’M REFERRING TO THE COMMUNITY

25 OF SAN DIEGO, AND MORE SPECIFICALLY THE AREA OF DEHESA.

26 A.: YES. AND THAT’S RELATIVE WARM TEMPERATURES SHOW

27 WHAT — I WOULDN’T CONSIDER —

28 Q.: WELL, IN COMPARISON TO YOUR TENNESSEE, RIGHT?

8769

1 YOU ALSO NOTED THAT THERE WERE SANTA ANA WINDS THAT

2 FACTORED INTO YOUR OPINION, IS THAT RIGHT?

3 A.: THAT IS CORRECT.

4 Q.: NOW, DOES THE ABSENCE OF THE SANTA ANAS BETWEEN AT

5 LEAST THE 1ST AND THE 6TH IN ANY MANNER AFFECT YOUR OPINION

6 REGARDING WHEN MUMMIFICATION OCCURRED OR THE POSTMORTEM

7 INTERVAL?

8 A.: NOT REALLY.

9 Q.: WHICH WAY DID THE SANTA ANA WINDS BLOW?

10 A.: FROM EAST TO WEST OFF THE DESERT TO THE COAST.

11 Q.: IF THERE IS TREES THAT ARE IN THE WAY, OR IF

12 THERE’S TREES AND THERE’S A BODY, DO THE TREES SHELTER THE BODY

13 FROM THE WIND IN ANY WAY?

14 A.: THERE CAN BE SOME SHELTERING.

15 Q.: DID YOU TAKE INTO CONSIDERATION THE FACT THAT THE

16 BODY WAS LOCATED UNDER A TREE IN DETERMINING THE EFFECT, IF ANY,

17 OF THE PRESENCE OF SANTA ANA WINDS?

18 A.: YES, I DID.

19 Q.: YOU TESTIFIED THAT THERE WAS A VEGETATION SUBSTRATE

20 THAT THE BODY WAS LYING — I’M SORRY. YOUR REPORT INDICATES

21 THAT ONE OF THE BASES FOR YOUR CONCLUSION WAS A VEGETATION

22 SUBSTRATE THAT THE BODY WAS LYING ON. DO YOU RECALL THAT?

23 A.: I DO.

24 Q.: DO YOU RECALL ALSO, THOUGH SEEING A PHOTOGRAPH THAT

25 INDICATED THAT THE BODY, UNDERNEATH THE BODY WAS TOTALLY DRY,

26 THERE WAS NO VEGETATION OF ANY KIND?

27 A.: THERE WAS SEEN IN THE PHOTOGRAPHS — YOU COULD SEE

28 THE BROWN LEAF LITTER. THERE ARE SOME VINES AND THE ONLY —

8770

1 ONLY VEGETATION THAT I SAW, ANY PHOTOGRAPHS THAT SHOWED REALLY

2 ANY SIGN OF PLANT LIFE WERE THESE WHAT WERE IDENTIFIED I BELIEVE

3 AS POISON OAK VINES.

4 Q.: OKAY.

5 DO YOU KNOW HOW MUCH WATER IT TAKES FOR THE POISON

6 OAK TO GROW?

7 A.: I HAVE NO IDEA ON THE GROWTH RATE OR WHATEVER ON

8 POISON OAK, HOW FAST IT GROWS OR HOW MUCH WATER.

9 Q.: DIRECTING YOUR ATTENTION TO WHAT’S BEEN PREVIOUSLY

10 MARKED 3B, WE SEE GREEN BUSHES. I KNOW THAT WE SEE A LOT OF —

11 I DON’T KNOW, I CALL CHAPARRAL OR BROWN STUFF. HOW’S THAT FOR A

12 DESCRIPTION? BUT WE SEE A LOT OF GREEN. DOES THAT AFFECT YOUR

13 OPINION AS TO HOW DRY IT WAS?

14 A.: CERTAINLY. AND GREEN THAT I’M SEEING, THAT’S WHAT

15 I WOULD CONSIDER GREEN.

16 Q.: IT’S — THE DIFFERENCE BETWEEN EAST COASTERS AND

17 WEST COASTERS IS YOU HAVE WEATHER AND WE DON’T, RIGHT?

18 YOU TOLD US THAT YOU WERE FAMILIAR WITH THE SERIES

19 OF ARTICLES THAT HAD BEEN WRITTEN IN THE AREA OF FORENSIC

20 TAPHONOMY; IS THAT CORRECT?

21 A.: THAT’S CORRECT.

22 Q.: ONE OF THOSE ARTICLES WAS WRITTEN BY A WOMAN NAMED

23 ALLISON GALLOWAY, IS THAT RIGHT?

24 A.: YES. DR. GALLOWAY IS A GOOD COLLEAGUE OF MINE IN

25 THE FORENSIC ANTHROPOLOGY SCIENCES.

26 Q.: WITH REGARD TO ALLISON GALLOWAY, YOU TOOK INTO

27 CONSIDERATION A PUBLICATION OF HERS THAT ADDRESSED DECOMPOSITION

28 IN THE ARIZONA SONORAN DESERT, IS THAT RIGHT?

8771

1 A.: I DIDN’T NECESSARILY USE IT FOR THE SPECIFIC STUDY

2 BUT I INCORPORATED DATA FROM MULTIPLE STUDIES AND EXPERIENCE.

3 BUT YES, SHE DID WRITE ON — SHE DID HER GRADUATE STUDIES I

4 BELIEVE AT THE UNIVERSITY OF ARIZONA IN TUCSON, IF I’M CORRECT,

5 AND SO SHE SAW A LOT OF CASES FROM THE DESERT AREA, PARTICULARLY

6 MUMMIFIED CASES.

7 Q.: AND YOU’RE AWARE THAT WITH REGARD TO THE MUMMIFIED

8 CASES SHE’S INDICATED THAT —

9 MR. DUSEK: OBJECTION, HEARSAY.

10 THE COURT: WELL, REPHRASE THE WAY IT’S WRITTEN — I MEAN

11 THE WAY YOU’RE POSING IT AND I’LL ALLOW IT.

12 MR. FELDMAN: OKAY.

13 Q.: DO YOU AGREE WITH THE STATEMENT THAT "THE SURFACE

14 SHELF HARD SKIN PROTECTS THE INTERNAL PORTIONS OF THE BODY AND

15 SLOWS DEHYDRATION. MAGGOT ACTIVITY CONTINUES UNABATED UNDER

16 THIS HARDENED MATERIAL DURING THE EARLIER PORTIONS OF THIS

17 PROCESS." DO YOU AGREE WITH THAT STATEMENT?

18 A.: IF INSECTS ARE ABLE TO ACCESS IT, YES.

19 Q.: WELL, THIS WAS A CASE WHERE A MUMMIFIED BODY WAS IN

20 THE DESERT, AND THE INSECTS WERE ABLE TO ACCESS THE BODY

21 NOTWITHSTANDING THE MUMMIFICATION, ISN’T THAT TRUE?

22 MR. DUSEK: OBJECTION, HEARSAY.

23 THE COURT: OVERRULED. HE CAN ANSWER.

24 THE WITNESS: I DON’T RECALL IN HER ARTICLE IF SHE

25 SPECIFICALLY ADDRESSED ACCESS POINTS BY INSECTS WHETHER COYOTE

26 ACTIVITY FROM SCAVENGING, WHETHER THEY MADE IT DOWN THROUGH THE

27 THROAT, THROUGH THE UROGENITAL AREA, AND WHETHER WE’RE TALKING

28 AN ADULT VERSUS A CHILD.

8772

1 Q.: WOULD LOOKING AT THE PARAGRAPH IN THE ARTICLE

2 SPECIFICALLY ENTITLED "MUMMIFICATION" POTENTIALLY REFRESH YOUR

3 RECOLLECTION?

4 A.: CERTAINLY.

5 Q.: COUNSEL.

6 SIR, I’M SHOWING YOU A SECTION OF — JUST SO YOU’RE

7 COMFORTABLE WITH IT — THE ARTICLE’S CALLED "THE PROCESS OF

8 DECOMPOSITION. A MODEL FROM THE ARIZONA SONORAN DESERT" BY

9 ALLISON GALLOWAY.

10 A.: YES. THAT WAS IN A CHAPTER ON POSTMORTEM TAPHONOMY

11 EDITED BY HAGLAND.

12 Q.: SO YOU’RE AT LEAST FAMILIAR WITH THE NOTION?

13 A.: YES.

14 Q.: AND IT’S — SPECIFICALLY DIRECTING YOUR ATTENTION

15 TO THE PARAGRAPH ON MUMMIFICATION, AND I’VE GOT IT ALL

16 HIGHLIGHTED AND UNDERLINED, IF YOU COULD JUST PLEASE TAKE A LOOK

17 AT IT AND TELL ME WHETHER OR NOT YOU WOULD AGREE — WELL, FIRST

18 OF ALL, DOES IT REFRESH YOUR RECOLLECTION AS TO THE CONTENT OF

19 THE ARTICLE?

20 A.: YES.

21 Q.: HAVING HAD THE OPPORTUNITY TO REVIEW THE ARTICLE —

22 I WANT TO GIVE YOU SUFFICIENT OPPORTUNITY, SIR — DO YOU AGREE

23 WITH THE STATEMENT THAT THE SURFACE SHELF HARD SKIN PROTECTS THE

24 INTERNAL PORTIONS" —

25 MR. DUSEK: OBJECTION, ASKED AND ANSWERED.

26 THE COURT: OVERRULED.

27

28 ///

8773

1 BY MR. FELDMAN:

2 Q.: — "OF THE BODY AND SLOWS THE DEHYDRATION. MAGGOT

3 ACTIVITY CONTINUES UNABATED UNDER THIS HARDENED MATERIAL DURING

4 THE EARLIER PORTION OF THIS PROCESS."

5 DO YOU AGREE WITH THAT?

6 A.: THE STATEMENT, I DO AGREE THAT THE HARDENED SHELL

7 PROTECTS AND PRESERVES MOISTURE WITHIN ANY INTERNAL ORGAN

8 MATERIAL THAT IS THERE. DECOMPOSITION CAN STILL CONTINUE

9 UNDERNEATH. IF MAGGOTS ARE PRESENT WITHIN THOSE CAVITIES, THEY

10 CAN CERTAINLY CONTINUE TO DEVELOP UNDER THIS MUMMIFIED HARDENED

11 SHELL.

12 THE QUESTION IS ARE THERE INSECTS AND DO THEY HAVE

13 ACCESS TO THAT AREA. I UNFORTUNATELY AM NOT A MIND READER OF

14 INSECTS AND I CAN’T TELL WHERE AND HOW THEY MAKE THEIR ACCESS ON

15 A PARTICULAR CASE.

16 Q.: AND WITH REGARD TO THIS ISSUE OF MUMMIFICATION, THE

17 ARTICLE GOES ON TO TALK ABOUT "THE ONSET OF THIS STAGE CAN OCCUR

18 AS EARLY AS THE THIRD DAY, ALTHOUGH IT’S MOST FREQUENT BETWEEN

19 THE TENTH DAY AND ONE MONTH."

20 THAT REFERS TO THE ONSET OF MUMMIFICATION, DOES IT

21 NOT?

22 A.: IN THAT ARTICLE THAT’S HOW SHE’S REFERRING TO IT.

23 Q.: OKAY. AND WHEN SHE’S REFERRING TO IT SHE’S

24 REFERRING TO A BODY THAT’S OUT IN THE DESERT, WHICH IS EVEN MORE

25 ARID, HOT, DRY THAN THE AREA OF DEHESA; ISN’T THAT CORRECT?

26 A.: ONE WOULD ASSUME.

27 Q.: NOW, WITH REGARD TO I THINK YOU HAD TESTIFIED IN

28 RESPONSE TO MR. DUSEK’S QUESTIONS SOMEWHERE ALONG THE LINE THAT

8774

1 ONE THEORY WAS THAT THE BODY HAD MUMMIFIED AND THAT CARNIVORES

2 HAD COME ALONG AND OPENED IT UP, AND AT THAT POINT THE BLOW

3 FLIES CAME IN.

4 DOES THAT FAIRLY DESCRIBE ONE OF YOUR PROPOSITIONS?

5 A.: THAT IS ONE THEORY AS I’VE HEARD.

6 Q.: ALL RIGHT.

7 Q.: YOU DON’T AGREE WITH THE THEORY?

8 A.: WELL, THE THEORY IS I CAN’T SAY.

9 THE INSECTS IN THIS PARTICULAR CASE COULD HAVE

10 ACCESSED THE BODY TWO WAYS.

11 ONE, THEY COULD HAVE ACCESSED THE BODY THROUGH THE

12 EYES, NOSE AND MOUTH IF THERE WASN’T SUFFICIENT DRYING AND THEY

13 COULD MAKE IT THROUGH THE PASSAGES. AND I DON’T BELIEVE ANYBODY

14 CAN MAKE A DETERMINATION AS TO HOW MANY OF THESE MAGGOTS OR

15 LARVA COULD MAKE IT DOWN THROUGH THE AIRWAY OR THROUGH THE

16 UROGENITAL TRACT.

17 TYPICALLY, IT WOULD BE MUCH EASIER ON AN ADULT

18 BECAUSE THEY HAVE LARGER OPENINGS, AND THEREFORE, ALSO WOULD NOT

19 DRY AS FAST AS A SMALL UROGENITAL VAULT OF A CHILD OR THE NASAL

20 OPENINGS OF SUCH. SO THE INSECTS, VERY WELL SOME COULD MAKE IT

21 DOWN THROUGH THESE NATURAL BODY OPENINGS. THEY ALSO COULD GAIN

22 ACCESS THROUGH CARRION ACTIVITY SUCH AS ANIMALS, VERTEBRATES

23 FEEDING ON THAT.

24 Q.: BUT WE DON’T HAVE ANY EVIDENCE OF THAT, DO WE?

25 A.: EVIDENCE OF WHAT?

26 Q.: EVIDENCE OF CARRION ACTIVITY OTHER THAN THE LARGER

27 CARNIVORES?

28 A.: NO. THERE IS EVIDENCE OF CARNIVORE ACTIVITY. THAT

8775

1 OF SCAVENGING ANIMALS THAT HAVE SUFFICIENT DIGESTIVE SYSTEMS AND

2 DENTITION TO REMOVE THE SOFT TISSUES.

3 Q.: YES. AND, IN FACT, I THINK YOU MENTIONED ON DIRECT

4 EXAMINATION, I THINK RODENTS OR SQUIRRELS OR SOMETHING COULD

5 HAVE TAKEN THE TEETH?

6 A.: WHEN YOU HAVE A BODY THAT DECOMPOSES, AS I

7 MENTIONED, IT’S A WHOLE ECOLOGICAL EVENT. YOU HAVE A FOOD

8 SOURCE THAT’S BASICALLY BEEN INTRODUCED TO THAT AREA THAT

9 NORMALLY WASN’T THERE, AND YOU START A CHAIN REACTION OF

10 ACTIVITY, MANY BY THE INSECTS. NUMEROUS ANIMALS, INVERTEBRATES

11 WILL VISIT THOSE REMAINS. IT CAN BE RODENTS THAT TYPICALLY WILL

12 COME TO FEED ON SKELETALIZED REMAINS. THEY MAY FEED ON THE SOFT

13 TISSUES. MANY TIMES THE RODENTS WILL REMOVE THE DENTITION THAT

14 HAS FALLEN OUT, OR SMALL BONES. MANY TIMES WE FIND THESE IN

15 THEIR BURROUGHS NEARBY WHERE THE BODY IS.

16 BIRDS, AS I MENTIONED BEFORE, WILL COME REMOVE HAIR

17 AS WELL AS RODENTS TO LINE THEIR NEST, AND YOU WILL HAVE A

18 NUMBER OF OTHER LARGER, SPECIFICALLY MAMMALS, THAT COME IN AND

19 WILL FEED ON THE BODY.

20 Q.: NOW, YOU WERE TALKING ABOUT ACCESS POINTS OF THE

21 BLOW FLIES. I WANT TO SPECIFICALLY PUT THIS TO YOU, A

22 HYPOTHETICAL.

23 ASSUME HYPOTHETICALLY THAT THERE WAS A POSTMORTEM

24 INCISION. DON’T YOU THINK THAT IF THAT WERE THE CASE, THAT IS,

25 THAT SHE LAID OUT FOR A WHILE, IN CAME A CARNIVORE, OPENED UP

26 HER STOMACH, REMOVED THE ENTRAILS, ISN’T IT TRUE THAT THE BLOW

27 FLIES ARE LESS ATTRACTED TO POSTMORTEM INCISIONS THAN TO NATURAL

28 BODY OPENINGS?

8776

1 A.: NOT NECESSARILY.

2 Q.: ONCE AGAIN, THE GALLOWAY STUDY, WHICH I THINK YOU

3 TOLD US YOU INDICATED REFERENCES A STUDY BY A MAN NAMED BURGER.

4 ARE YOU FAMILIAR WITH THE BURGER STUDY?

5 A.: I BELIEVE SO.

6 Q.: YOU’RE FAMILIAR THAT IN THE BURGER STUDY THERE WAS

7 A SUGGESTION THAT BLOW FLIES ARE LESS ATTRACTED TO POSTMORTEM

8 INCISIONS?

9 MR. DUSEK: OBJECTION, ASSUMES FACTS NOT IN EVIDENCE.

10 THE COURT: JUST REPHRASE THE QUESTION AND I’LL ALLOW IT.

11

12 BY MR. FELDMAN:

13 Q.: DID YOU TAKE INTO CONSIDERATION THAT IN THE BURGER

14 STUDY BLOW FLIES, IT WAS CONCLUDED OR SUGGESTED THAT BLOW FLIES

15 ARE LESS ATTRACTED TO POSTMORTEM INCISIONS THAN TO THE NATURAL

16 BODY OPENINGS? YOU’VE KEPT THAT IN MIND?

17 A.: THAT’S CORRECT. AND OUR REAL QUESTION IS WHAT IS

18 LESS.

19 Q.: WELL, YOU’RE ALSO AWARE THAT IN THAT STUDY THE

20 CONCLUSION THAT THE BLOW FLIES WERE LESS ATTRACTED TO POSTMORTEM

21 INCISION TO THE NATURAL BODY OPENINGS?

22 MR. DUSEK: OBJECTION, HEARSAY.

23 THE COURT: JUST REPHRASE IT. I HAD AN OBJECTION

24 INCIDENTALLY.

25 MR. FELDMAN: I’M SORRY, I MISSED IT.

26 THE COURT: I DIDN’T THINK YOU HEARD IT. REPHRASE THE

27 QUESTION.

28 ///

8777

1 BY MR. FELDMAN:

2 Q.: DID YOU CONSIDER, WITH REGARD TO THE ARTICLE AND

3 WITH REGARD TO THE BURGER STUDY, THAT THE FACT THAT THE BLOW

4 FLIES WERE LESS ATTRACTED TO POSTMORTEM INCISIONS THAN TO

5 NATURAL BODY OPENINGS WAS ATTRIBUTED TO THE COMPETITION FOR AIR,

6 WHICH MIGHT OCCUR UNDER THOSE CONDITIONS, AND THAT THAT MIGHT

7 EXPLAIN WHY, IN SOME INSTANCES, INDICATIONS OF SHARP FORCE

8 TRAUMA ARE PRESERVED IN MUMMIFIED SKIN AND NOT LOST TO INSECT

9 ACTIVITY?

10 A.: WHEN YOU HAVE SHARP FORCE TRAUMA THAT, LET’S SAY,

11 OCCURS POSTMORTEM, FOR SOME REASON OR OTHER, IF THOSE TISSUES

12 ARE CUT, LACERATED, OPENED, AND YOU HAVE DRYING, THOSE TISSUES

13 WILL DRY. AND MANY TIMES THEY CAN PRESERVE THE CUT MARK OR THE

14 ACTUAL MORPHOLOGICAL CONTOUR.

15 BUT AS WE SEE IN THIS PARTICULAR CASE, IF YOU REFER

16 TO DR. BLACKBOURNE’S REPORT, MANY OF THE ORGANS WERE STILL

17 PRESENT, AND ALL THOSE SHOW SOME AUTOLYSIS. THEY WERE STILL

18 ANATOMICALLY RECOGNIZABLE. THERE WERE STILL FLUIDS. AND EVEN

19 WHEN THE HANDS I BELIEVE WERE SEPARATED, YOU COULD SEE RED

20 MUSCULATURE. SO WE HAVE A FOOD SOURCE THAT IS STILL IN FAIRLY

21 GOOD CONDITION AND HAVE A TRACT ATTRACTIVE FOR BLOW FLIES ONCE

22 EXPOSED.

23 AND I HAVE WORKED ON REMAINS THAT BASICALLY HAVE

24 BEEN MUMMIFIED AND HAVE GOOD PRESERVATION OF THE INTERNAL

25 ORGANS, AND UNDER FIELD CONDITIONS WHEN THEY HAVE BEEN OPENED

26 UP, FLIES WILL COME IN AND FEED IN VERY LARGE NUMBERS.

27 Q.: IN REFERENCE TO DR. BLACKBOURNE’S AUTOPSY

28 CONCLUSION, HE NOTED THE ABSENCE OF THE PANCREAS, DIDN’T HE?

8778

1 A.: IF YOU’LL LET ME REFER TO MY NOTES.

2 Q.: PAGE SEVEN OF THE AUTOPSY.

3 A.: IN HIS AUTOPSY HE MENTIONED THAT THE LEFT KIDNEY

4 WAS ABSENT.

5 Q.: NO, NO, SIR. I ASKED YOU SPECIFICALLY ABOUT THE

6 PANCREAS, FOR STARTERS. HE NOTED THAT "THE PANCREAS IS NOT

7 IDENTIFIED DUE TO DECOMPOSITION AND/OR ANIMAL FEEDING"; CORRECT?

8 A.: THAT IS CORRECT.

9 Q.: HE NOTED "THE SPLEEN IS NOT IDENTIFIED DUE TO

10 POSTMORTEM DECOMPOSITION AND ANIMAL FEEDING"; CORRECT?

11 A.: THAT’S CORRECT.

12 Q.: HE NOTED THAT "THE LEFT ADRENAL GLAND WAS NOT

13 IDENTIFIED BUT THE RIGHT ADRENAL GLAND APPEARED TO BE RECOVERED

14 IN SOME SENSE," CORRECT?

15 A.: THAT’S CORRECT.

16 Q.: HE NOTED THAT "A PORTION OF THE RIGHT KIDNEY WAS

17 NOT REMAINING BASED UPON ANIMAL FEEDING," CORRECT?

18 A.: WAS IT NOT THE LEFT KIDNEY THAT WAS ABSENT?

19 Q.: I’M SORRY. "THE LEFT KIDNEY WAS ABSENT AS A RESULT

20 OF ANIMAL FEEDING," AND THAT "THE RIGHT KIDNEY DEMONSTRATED

21 ONE-THIRD OF THE LOWER POLE OF THE KIDNEY ABSENT AS A RESULT OF

22 ANIMAL FEEDING," CORRECT?

23 A.: CORRECT.

24 Q.: THE UTERUS WASN’T IDENTIFIED, CORRECT?

25 A.: CORRECT.

26 Q.: HE DID NOTE THAT THE HEART WEIGHED 120 GRAMS,

27 CORRECT?

28 A.: CORRECT.

8779

1 Q.: THE RIGHT LUNG WEIGHED 190 GRAMS, THE LEFT LUNG 180

2 GRAMS, CORRECT?

3 MR. DUSEK: OBJECTION, HEARSAY.

4 THE COURT: OVERRULED.

5 THE WITNESS: CORRECT.

6

7 BY MR. FELDMAN:

8 Q.: SIR, I WANT TO SWITCH ON YOU. I WANT TO GO BACK TO

9 THAT ISSUE OF ANTS.

10 MR. DUSEK: OBJECTION. I ASK THAT THAT BE NOW STRICKEN

11 BECAUSE THERE WAS NO FOLLOW-UP QUESTIONS, ALL HEARSAY.

12 THE COURT: ALL HEARSAY. SUSTAINED.

13 ARE YOU GOING TO FOLLOW-UP ON IT?

14

15 BY MR. FELDMAN:

16 Q.: JUST YOU HAD INDICATED THAT PORTIONS OF THE — YOU

17 HAD RELIED UPON DR. BLACKBOURNE’S REPORT, CORRECT?

18 A.: THAT IS ONE OF THE INFORMATION THAT I USED.

19 Q.: AND AMONG THE INFORMATION THAT YOU USED I THINK YOU

20 TOLD ME WAS THE PRESENCE OR ABSENCE OF THE INTERNAL ORGANS,

21 CORRECT?

22 A.: THAT IS CORRECT.

23 Q.: AND I JUST TOOK YOU THROUGH SOME PORTIONS OF THE

24 AUTOPSY WHICH WOULD ADDRESS SOME OF THOSE ISSUES, CORRECT?

25 A.: THAT IS CORRECT.

26 Q.: YOU WOULD AGREE THAT AT LEAST WHAT I READ TO YOU IS

27 ACCURATE?

28 A.: THAT IS CORRECT.

8780

1 Q.: AND YOU TOOK THAT INTO CONSIDERATION?

2 A.: I CERTAINLY DID.

3 Q.: NOW, I WANT TO SWITCH TOPICS ON YOU.

4 A.: OKAY.

5 Q.: WE DISCUSSED EARLIER THAT — THE NOTION THAT THE

6 ANTS WOULD COME ALONG AT SOME POINT AND REMOVE MAGGOT LARVA, DO

7 YOU RECALL THAT?

8 A.: YES.

9 Q.: AND I HAD ASKED YOU EARLIER WHETHER OR NOT YOU

10 RECALL THAT THERE WAS ONLY ONE ANT AND I THINK YOU TOLD ME — OR

11 WORDS TO THAT EFFECT?

12 A.: IN DAVID FAULKNER’S REPORT, THE CONSULTING

13 ENTOMOLOGIST TO DR. BLACKBOURNE, HE MENTIONS ANTS, PLURAL. HE

14 DIDN’T GIVE A SPECIFIC GENUS OR SPECIES, AND I THINK HE WAS

15 UNABLE TO IDENTIFY THEM OR —

16 Q.: WELL, YOU ALSO RECALL READING DR. HASKELL’S REPORT,

17 CORRECT?

18 A.: THAT IS CORRECT.

19 Q.: DR. HASKELL INVENTORIED THE BUGS, IS THAT RIGHT?

20 A.: IS MY UNDERSTANDING HE HAD ACCESS TO THE INSECTS.

21 Q.: YOU MEAN — I’M SORRY. WHEN DID YOU GET HIRED ON

22 THIS CASE?

23 A.: I WAS CONTACTED MONDAY THE 15TH TO BEGIN TO RECEIVE

24 INFORMATION. ACTUALLY, THAT WAS JULY 15TH, ON MONDAY.

25 Q.: OKAY.

26 YOU’VE NOT SEEN THE INSECTS?

27 A.: NO, I HAVEN’T.

28 Q.: BUT YOU’RE NOT A FORENSIC ENTOMOLOGIST?

8781

1 A.: NO.

2 Q.: I’M SORRY. WHEN YOU SAY NO, YOU MEAN TO AGREE WITH

3 ME YOU ARE NOT A FORENSIC ENTOMOLOGIST?

4 A.: NO. I AM NOT TRAINED IN FORENSIC ENTOMOLOGY. I’M

5 NOT BOARD CERTIFIED AS A FORENSIC ENTOMOLOGIST.

6 Q.: OKAY.

7 SIR, WITH REGARD TO THE NOTION OF ANTS, LET ME ASK

8 IT AGAIN. IT IS CORRECT, IS IT NOT, THAT THERE WAS ONLY ONE ANT

9 THAT WAS LOCATED?

10 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE, AND WHAT’S

11 LOCATED?

12 THE COURT: SUSTAINED.

13 MR. FELDMAN: I’M SORRY. LOCATED IS THE WORD, YOUR

14 HONOR?

15 MR. DUSEK: REGARDING THE SCENE OR COLLECTED?

16 THE COURT: YOU CAN ASK HIM WHAT THE REPORTS SAY BUT HE’D

17 HAVE NO WAY OF KNOWING WHAT —

18 MR. FELDMAN: I SEE, OKAY.

19 Q.: YOU TOLD US THAT YOU RELIED UPON DR. HASKELL’S

20 REPORT, SIR. LET ME SHOW YOU DR. HASKELL’S REPORT. AND I’VE

21 JUST SHOWN THIS TO COUNSEL. SPECIFICALLY DIRECTING YOUR

22 ATTENTION TO THE LAST LINE AT PAGE THREE, HE SPECIFICALLY NOTES

23 ADULT H-Y-M-E —

24 A.: HYMENOPTRA.

25 Q.: H-Y-M-E-N-O-P-T-R-A, HYMENOPTRA; IS THAT CORRECT,

26 SIR?

27 A.: THAT’S CORRECT. THAT INCLUDES THE BEES, THE ANTS

28 AND THE WASPS.

8782

1 Q.: AND THEN DR. HASKELL IDENTIFIED ONE ADULT

2 HYMENOPTRA, CORRECT?

3 A.: AS IN HIS REPORT THERE SHOWS THE SAMPLE. I ASSUME

4 THAT ONE MEANS THERE’S JUST ONE SAMPLE OR ONE PARTICULAR INSECT.

5 Q.: WELL, YOU CAN SEE EARLIER WHERE HE TALKS ABOUT

6 BEETLES HE SAYS THERE’S SEVEN OF THEM, RIGHT?

7 A.: AS THIS READS, YES, IT LOOKS LIKE THERE ARE SEVEN

8 BEETLES AND ONE ANT OR HYMENOPTRA.

9 Q.: YOU’RE AWARE THAT THERE ARE STUDIES THAT EXIST THAT

10 EVEN IF THE ANTS COME ALONG AND EAT BLOW FLY LARVA, THAT THAT

11 MAY ONLY DELAY THE ONSET OF ADDITIONAL BLOW FLY DECOMPOSITION BY

12 TWO DAYS OR ADDITIONAL BLOW FLY INFESTATION BY ONLY TWO DAYS?

13 A.: THERE HAVE BEEN STUDIES THAT HAVE SUGGESTED, YOU

14 KNOW, AND PARTICULARLY DR. LEE GOFF OF THE UNIVERSITY OF HAWAII,

15 WHO HAS DONE RESEARCH IN THIS, SHOWING THAT COMPETITION AND

16 BASED ON HIS — THAT PARTICULAR STUDY HE WAS SHOWING THAT

17 INTERVAL OF TIME.

18 BUT THERE’S — THERE’S NO WAY WE CAN SAY WHAT

19 INTERVAL OF TIME AND HOW MANY ANTS AND WHAT COMPETITION.

20 ADMITTEDLY, WE DON’T — DO NOT KNOW THAT.

21 AS IN MY REPORT, I — I QUOTED EVIDENCE OF ANTS AT

22 THE SCENE INDICATE THE LIKELIHOOD OF LARVAL SCAVENGING BY ANTS,

23 PARTICULARLY THAT OF BLOW FLY. THIS IS A LIKELIHOOD. CAN I SAY

24 ABSOLUTELY THERE WAS SCAVENGING? HOW MUCH? NO, I CANNOT, SIR.

25 Q.: BUT YOU DID SAY ANTS IN THE PLURAL, AND YOU DIDN’T

26 HAVE EVIDENCE OF ANTS IN THE PLURAL, YOU ONLY HAD EVIDENCE FROM

27 HASKELL OF ANTS IN THE SINGULAR.

28 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE.

8783

1 THE COURT: OVERRULED. SUSTAINED — I MEAN —

2 WHOA, FIGURE THAT ONE OUT.

3 THAT’S LIKE WHEN RIVER WAS HERE YESTERDAY, I SAID

4 THE ANSWER TO YOUR QUESTION IS YES, AND THEN I THOUGHT TO MYSELF

5 NO, I MEANT NO. SO I GUESS THAT’S A SIGN OF A LONG DAY WITH A

6 LOT OF STRESS.

7 THE OBJECTION IS SUSTAINED BASED ON AT LEAST TWO

8 REPORTS THAT I’VE HEARD ABOUT.

9 ALL RIGHT. GO AHEAD.

10 MR. FELDMAN: OKAY.

11 Q.: TO A CERTAIN EXTENT YOUR RELIANCE UPON THE PRESENCE

12 OR ABSENCE OF THE INSECTS IS BASED UPON YOUR CONFIDENCE OR YOUR

13 EVALUATION OF THE COLLECTION ABILITIES OF DAVID FAULKNER, IS

14 THAT RIGHT?

15 A.: DR. FAULKNER DIDN’T SPECIFICALLY OUTLINE IN VERY

16 DETAIL. HE POKED AROUND, I BELIEVE. I DO NOT KNOW — THERE WAS

17 NO MENTION OF ACTUAL DIGGING, SETTING OF ANY COLLECTION TRAPS AS

18 OF SUCH, SO I DON’T KNOW THE QUANTITY, SUCH LIKE, YOU KNOW, WITH

19 THE ANTS. TYPICALLY WHEN YOU FIND ONE ANT, THAT USUALLY MEANS

20 THERE’S MORE THAN ONE. THEY’RE COLONY INSECTS.

21 Q.: YOU SAID — YOU SAID YOU REVIEWED MR. FAULKNER’S

22 TESTIMONY.

23 DO YOU RECALL THAT?

24 A.: THAT’S CORRECT.

25 Q.: DO YOU RECALL MR. FAULKNER SPECIFICALLY TESTIFYING

26 THAT HE CRAWLED — HE WAS GIVEN GREATER ACCESS TO THIS SCENE

27 THAN ANY OTHER CASE IN HIS CAREER, AND THAT HE WAS CRAWLING

28 AROUND ON HIS HANDS AND KNEES TRYING TO COLLECT INSECTS, TO THE

8784

1 POINT THAT HE GOT POISON IVY, DO YOU RECALL THAT TESTIMONY?

2 A.: I RECALL THAT HE HAD BEEN GIVEN ACCESS TO THE SCENE

3 AND —

4 Q.: POISON OAK, I’M SORRY.

5 A.: HE HAD BEEN IN CONTACT WITH THE GROUND. I BELIEVE

6 HE DID USE THE TERM "CRAWLING" AND HAD COME IN CONTACT WITH THE

7 POISON OAK. SO HE DID CONDUCT A SEARCH.

8 Q.: IS IT CORRECT THAT SCAVENGERS ACTING AS

9 OPPORTUNISTIC PREDATORS OF INSECTS ARE COMMON ON REMAINS?

10 A.: YES.

11 Q.: IS IT CORRECT THAT, ALTHOUGH THESE PREDATORS MAY

12 REMOVE SUBSTANTIAL NUMBERS OF COLONIZERS, PARTICULARLY BLOW FLY

13 LARVA, THEY USUALLY HAVE LITTLE IMPACT OVERALL?

14 A.: THAT —

15 MR. DUSEK: OBJECTION, VAGUE AS TO WHAT IMPACT ON.

16 THE COURT: OVERRULED.

17 DO YOU UNDERSTAND THE QUESTION, DOCTOR?

18 THE WITNESS: IF YOU’D REPEAT IT AGAIN, PLEASE.

19 MR. FELDMAN: SURE. WELL, LET ME FOUNDATION IT.

20 Q.: ARE YOU FAMILIAR WITH GAIL ANDERSON?

21 A.: SHE IS A FORENSIC ENTOMOLOGIST FROM CANTOR, BRITISH

22 COLUMBIA, I BELIEVE.

23 Q.: ARE YOU FAMILIAR AND DID YOU CONSIDER HER ARTICLE

24 "INSECT SUCCESSION ON CARRION AND IT IS RELATIONSHIP TO

25 DETERMINING TIME OF DEATH"?

26 A.: I BELIEVE I HAVE REVIEWED THAT AT ONE TIME.

27 Q.: DO YOU AGREE WITH THE PROPOSITION THAT "SCAVENGERS

28 ACTING AS OPPORTUNISTIC PREDATORS ON INSECTS ARE COMMON ON

8785

1 REMAINS"?

2 A.: THAT IS CORRECT.

3 Q.: DO YOU AGREE WITH THE PROPOSITION THAT "ALTHOUGH

4 THE SCAVENGERS MAY REMOVE SUBSTANTIAL NUMBERS OF COLONIZERS,

5 PARTICULARLY BLOW FLY LARVAE, THEY USUALLY HAVE LITTLE IMPACT

6 OVERALL. HOWEVER, SOME INSECT SCAVENGERS DUE TO THEIR

7 VORACIOUSNESS IN NUMBERS CAN HAVE A SUBSTANTIAL EFFECT ON

8 ARTHROPOD COLONIZATION OF REMAINS; IE., FIRE ANTS"?

9 A.: CORRECT ME IF I’M WRONG, BUT WHAT YOU JUST READ TO

10 ME, BASICALLY YOU’RE STATING THAT IN HER STUDY SHE SAID THAT IT

11 HAS LITTLE EFFECT BUT THEN TURNS AROUND AND SAYS THEN IT CAN

12 HAVE SUBSTANTIAL EFFECT.

13 Q.: WELL, SHE’S INDICATED —

14 A.: SO WHICH ARE WE?

15 Q.: SHE INDICATES, DOES SHE NOT, BASED ON YOUR

16 UNDERSTANDING OF HER ARTICLE, REGARDLESS OF HOW I’M READING IT

17 TO YOU, IT’S YOUR UNDERSTANDING THAT HER BOTTOM LINE IS THAT

18 ALTHOUGH THERE MIGHT BE ANTS, IT’S NOT GOING TO SUBSTANTIALLY

19 AFFECT THE ABILITY OF THE BLOW FLIES TO INFEST A CORPSE?

20 A.: IT DEPENDS ON THE CASE. I HAVE SEEN SOME ACTUAL —

21 WORKED ON SOME CLASSIC CASES WHERE THERE WAS JUST REMARKABLE ANT

22 ACTIVITY THAT DEPRIVED ALMOST ALL THE BLOW FLY FROM THE BODY. I

23 MEAN CARRYING OFF IN MASSES.

24 Q.: IN YOUR STUDIES AT THE BODY FARM, DO YOU USE

25 BOTH — YOU’VE USED HUMANS. ARE YOU AWARE OF STUDIES THAT

26 UTILIZE PIG CARCASSES?

27 A.: I AM.

28 Q.: AND ARE YOU AWARE THAT, AGAIN, WITH REGARD TO THE

8786

1 ANDERSON PROPOSITION, THAT SHE NOTED A BIG CARCASS PLACED CLOSE

2 TO AN ANT NEST THAT WAS — THAT SCAVENGED ALMOST CLEAN BLOW FLY

3 EGGS FOR TWO DAYS UNTIL THE NUMBERS OF BLOW FLY EGGS WERE SO

4 LARGE AS TO OVERWHELM THE ANT PRESENCE?

5 ARE YOU FAMILIAR WITH THAT PORTION OF HER STUDY?

6 A.: IF THAT’S WHAT IT STATES AND THAT CAN OCCUR, AND

7 YOU CAN HAVE THE OPPOSITE.

8 Q.: ALL RIGHT.

9 YOU JUST DON’T KNOW IN THIS CASE WHICH HAPPENED; IS

10 THAT CORRECT?

11 A.: I CANNOT SAY. THAT’S CORRECT.

12 Q.: SO YOUR OPINIONS, WOULD YOU AGREE, ARE SPECULATIVE?

13 MR. DUSEK: OBJECTION, ARGUMENTATIVE.

14 THE COURT: SUSTAINED.

15 BY MR. FELDMAN:

16 Q.: IS IT YOUR TESTIMONY, SIR, THAT YOU’VE RENDERED A

17 GUESSTIMATE AS TO THE POSTMORTEM INTERVAL BASED UPON YOUR REVIEW

18 OF THE RECORDS, BUT WHICH FUNDAMENTALLY, AND AS THE BOTTOM LINE,

19 REALLY PUTS THE TIME OF DEATH, IF WE USE THOSE WORDS IN LIEU OF

20 POSTMORTEM INTERVAL, AT A TIME WHEN IT WAS IMPOSSIBLE FOR

21 DANIELLE VAN DAM TO HAVE BEEN DEAD?

22 MR. DUSEK: OBJECTION, ARGUMENTATIVE, COMPOUND.

23 THE COURT: SUSTAINED.

24

25 BY MR. FELDMAN:

26 Q.: HOW MANY MAGGOTS WERE THERE — I’M SORRY, NO

27 FURTHER QUESTIONS.

28 THE COURT: ALL RIGHT. ANYTHING FURTHER?

8787

1 MR. DUSEK: YES.

2

3 REDIRECT EXAMINATION +

4 BY MR. DUSEK:

5 Q.: ON THE BOARD BEHIND YOU I THINK WE HAVE ONE

6 INDICATION THERE "RODRIGUEZ FROM JANUARY 16TH FORWARD."

7 LET’S COMPLETE THAT WITH DR. BLACKBOURNE. HE

8 INDICATED I THINK TEN DAYS TO SIX WEEKS. COULD YOU STEP TO THE

9 BOARD AND IN GREEN, DR. RODRIGUEZ — I THINK WE’VE LOST GREEN.

10 YOU COULD USE BLACK.

11 THE COURT: MR. DUSEK, HOW DO YOU WANT HIM TO MAKE THE

12 NOTATION?

13

14 BY MR. DUSEK:

15 Q.: IF YOU’D PUT IT OVER ON THE AREA FOR TUESDAY

16 THAT’S UNMARKED, IF YOU’D PUT BLACKBOURNE TEN DAYS TO SIX WEEKS,

17 THE SQUARE ABOVE THE 4TH OF FEBRUARY?

18 THE COURT: THAT’S MONDAY.

19

20 BY MR. DUSEK:

21 Q.: MONDAY, IF YOU WOULD.

22 THE COURT: IN THE BOX ON MONDAY.

23

24 BY MR. DUSEK:

25 Q.: THE EMPTY BOX UP THERE.

26 A.: THE EMPTY BOX, OKAY. I HOPE I SPELLED HIS NAME

27 CORRECTLY.

28 Q.: AND IF YOU’D PUT IN THERE TEN DAYS TO SIX WEEKS?

8788

1 A.: I’LL KIND OF WRITE BACKWARDS HERE.

2 Q.: AND FOR US TO EQUATE THAT WITH THE EXHIBIT 169 THAT

3 YOU WROTE IT ON, THAT WOULD TAKE US FROM HIS POTENTIAL TIME OF

4 DEATH FROM FEBRUARY 18TH BACK TO THE MID PART OF JANUARY; IS

5 THAT CORRECT?

6 A.: THAT WOULD BE CORRECT.

7 Q.: THERE WAS ANOTHER DATE THAT YOU INDICATED WAS A DR.

8 WECHT.

9 DO YOU RECALL THAT?

10 A.: I DO.

11 Q.: AND YOU REVIEWED DATA PROVIDED BY HIM?

12 A.: THAT IS CORRECT.

13 Q.: WAS THAT IN A LETTER HE SENT TO THE DEFENSE

14 ATTORNEYS?

15 A.: YES. IT WAS A CONSULTATIVE REPORT.

16 Q.: APPEARED TO BE A CONSULTATION THAT THE DEFENSE HAD

17 OBTAINED?

18 A.: THAT IS CORRECT.

19 Q.: YOU’VE REVIEWED AND CONSIDERED THAT ALSO?

20 A.: YES, I DID.

21 Q.: WHAT WAS HIS TIME PERIOD?

22 A.: I JUST WANT TO REFER AGAIN TO MY NOTES.

23 DR. WECHT NOTED A POSTMORTEM INTERVAL UP TO FOUR

24 WEEKS, 28 DAYS.

25 Q.: COULD YOU MOVE ON TO THE NEXT EMPTY SQUARE THERE OF

26 TUESDAY ABOVE THE 5TH, THE OTHER BLANK WE HAVE THERE, AND WOULD

27 YOU PUT IN WECHT?

28 A.: (WITNESS COMPLYING.)

8789

1 Q.: AND THEN THE TIME PERIOD THAT HE HAD I THINK WAS

2 TEN DAYS TO FOUR WEEKS; IS THAT CORRECT?

3 AND IF WE USE THAT AS A TIME OF DEATH, THAT WOULD

4 PUT THE TIME OF DEATH FROM, LOOKS LIKE AROUND THE 18TH, BACK TO

5 EITHER JANUARY 31ST OR FEBRUARY 1ST; IS THAT CORRECT?

6 A.: I THINK ROUGHLY BY MY CALCULATIONS.

7 Q.: ALL RIGHT. THANK YOU, DOCTOR.

8 GO AHEAD AND SIT DOWN IF YOU WOULD, PLEASE.

9 BECAUSE WE HAVE TESTIMONY IN THIS CASE THAT

10 DANIELLE VAN DAM WAS PUT TO BED ON FEBRUARY 1ST OF THIS YEAR,

11 HOW DO YOU CORRELATE THAT WITH YOUR OPINION THAT THE TIME OF

12 DEATH COULD HAVE BEEN FROM FOUR TO SIX WEEKS FROM THE TIME OF

13 RECOVERY, WHICH WOULD AT LEAST SOME OF THOSE TIMES PREDATE THE

14 LAST TIME SHE WAS SEEN ALIVE?

15 A.: BASICALLY, IN MY OPINION, I’M GIVING IT AS OPINION

16 OF INTERVAL. THAT IS WHAT IS POSSIBLE IN LOOKING AT — UNDER

17 THE ENVIRONMENTAL CONDITIONS, HOW LONG COULD THAT BODY POSSIBLY

18 HAVE BEEN DECEASED, BASED ON THOSE DECOMPOSITIONAL STAGES.

19 NOW, OF COURSE, ACCORDING TO REPORTS I HAVE

20 RECEIVED, AND OTHER WITNESS — THAT SHE WAS ALIVE, CERTAINLY I

21 ASSUME — OR THAT DEFENSE AS WELL AS PROSECUTION, THERE’S

22 AGREEMENT OR SUFFICIENT EVIDENCE SHOWING THAT THIS YOUNG GIRL

23 WAS ALIVE PRIOR TO THOSE DATES. AND AGAIN, IN MY ESTIMATE, THAT

24 IS AN ESTIMATE OF A BODY IN THAT CONDITION, THAT CHILD COULD

25 HAVE POSSIBLY HAVE BEEN THERE THAT LONG. THERE IS A POSTMORTEM

26 ESTIMATE. I DON’T KNOW FOR ABSOLUTELY SHE WAS ALIVE AT THE

27 TIME. I’M JUST RELYING ON EVERYBODY ELSE. BUT LOOKING AT THE

28 POSTMORTEM CHANGES, THIS IS WHAT WE WOULD EXPECT A BODY TO LOOK

8790

1 LIKE IN THAT FOUR TO SIX WEEK PERIOD.

2 Q.: BASED UPON THAT, DOES THAT MEAN SHE COULD NOT HAVE

3 BEEN KILLED JANUARY — OR FEBRUARY 1ST, 2ND, 3RD, 4TH, 5TH, 6TH?

4 A.: THAT WOULD OPEN THE POSSIBILITY TO ANY OF THOSE

5 DAYS, YES.

6 Q.: AND YOUR OPINION DOES NOT PRECLUDE THAT

7 POSSIBILITY, DOES IT?

8 A.: THAT’S CORRECT.

9 Q.: LET ME SHOW YOU A COUPLE OF CHARTS THAT YOU WERE

10 SHOWN. THE CHART THAT YOU WERE SHOWN REGARDING THE LARGE FLYING

11 MOBILE ANTS — OR FLIES ARE TYPICALLY THE FIRST INSECTS TO BE

12 ATTRACTED.

13 DO YOU RECALL WRITING THAT?

14 A.: I DO.

15 Q.: WHAT DID IT MEAN TO CONVEY WHEN YOU WROTE THAT

16 ARTICLE.

17 A.: TYPICALLY THE FIRST INSECTS THAT FEED ON CARRION,

18 THE MAJORITY OF THE PARTICULAR GROUPS OF INSECTS THAT FEED ARE

19 THE FLIES. THEY’RE THE ONES THAT ARE THE MAJOR RECYCLERS OF

20 DECOMPOSING REMAINS. IF THEY WEREN’T ON OUR PLANET WE’D BE UP

21 TO OUR HEADS IN DECOMPOSING BODIES, REMAINS, TRASH, WHATEVER.

22 THEY ARE TYPICALLY THE FIRST INSECTS IN.

23 AFTER THERE WILL BE A SUCCESSION OF VARIOUS TYPE OF

24 STAGE INSECT. FOR EXAMPLE, THE BEETLES THAT HAVE BEEN TALKED

25 ABOUT. THEY CAN COME IN AND FEED ON THE TISSUE, SUCH AS THE

26 CARRION BEETLES. THEY ACTUALLY FEED ON SOFT TISSUES, BUT THOSE

27 BEETLES AS WELL AS WHAT ARE KNOWN AS ROAD BEETLES ALSO ACTUALLY

28 COME IN AND FEED, NOT ONLY AS A CUE FROM THE DECOMPOSITIONAL

8791

1 ODOR BUT PRIMARILY TO THAT OF WHAT — SUFFICIENT NUMBERS OF

2 MAGGOTS THAT THEY WILL FEED ON.

3 Q.: ARE YOU TRYING TO TELL US HERE THAT FLIES ARE

4 TYPICALLY THE FIRST TO ARRIVE AND OTHER INSECTS COME IN LATER?

5 A.: YES. IT’S A REALLY FASCINATING AND UNIQUE

6 SUCCESSIONALITY.

7 Q.: THE SECOND PARAGRAPH OR SECOND LINE THAT WE HAVE

8 HERE TALKS ABOUT BODIES THAT HAVE SUFFERED TRAUMA. IS THAT

9 TRAUMA THAT COULD BE FROM ANIMAL ACTIVITY OPENING UP THE BODY?

10 MS. SCHAEFER: OBJECTION, MISSTATES THE CHART.

11 THE COURT: I THINK THE WORD IS "HAS NOT SUFFERED."

12 MR. DUSEK: I’M SORRY, I DID MISREAD IT.

13 Q.: IF THERE IS NO BODY OPENING, NO TRAUMA TO THE BODY,

14 ARE YOU TRYING TO CONVEY HERE THAT THE FLIES WOULD GO TO THE

15 NATURAL OPENINGS?

16 A.: YES. IF THERE ARE NO INJURIES TO THE BODY, THE

17 AREA OF ATTACK BY THE BLOW FLIES ARE THE EYES, NOSE AND THE

18 MOUTH WHERE THERE ARE FLUIDS AVAILABLE. BECAUSE, AGAIN, THE

19 ADULTS DO NOT HAVE THE CHEWING MECHANISM.

20 Q.: AND IF THE HEAD OPENINGS, NATURAL OPENINGS ARE NOT

21 RECEPTIVE TO THE FLIES, AND THERE ARE NO TRAUMATIC INJURIES TO

22 THE BODY, WOULD YOU EXPECT THE FLIES TO GO ANYWHERE AND LAY

23 THEIR EGGS ON THAT BODY?

24 A.: FLIES MAY LAY THEIR EGGS ON A BODY, BUT MANY

25 TIMES — INSECTS ARE LIKE ANY OTHER ORGANISM. THEY HAVE A

26 SELF-PRESERVATION MODE. AND WE CERTAINLY WOULD NOT GO TO AN

27 AREA, NECESSARILY REAR OUR YOUNG OR SIT AROUND IN AN AREA WHERE

28 THERE’S NOT MUCH TO DRINK OR EAT BECAUSE WE’LL PERISH. AND THE

8792

1 INSECTS, JUST BY NATURE AND INSTINCTS, KNOW THIS, AND IF THEY

2 HAVE TO DO SOME WE WILL SEE DEPOSIT EGGS, MANY TIMES THOSE EGGS

3 WILL MEET AN ILL FATE, THAT OF DRYING UP, DYING.

4 Q.: AND THE OTHER BOARD THAT WE HAD HERE WAS EXHIBIT

5 189. ARE YOU FAMILIAR WITH THE LANGUAGE THAT’S AT THE TOP OF

6 THIS BOARD?

7 A.: THAT IS CORRECT.

8 Q.: LOOKS LIKE YOU WERE AT LEAST ONE OF THE CO-AUTHORS

9 OF THE DOCUMENT THIS CAME FROM?

10 A.: YES.

11 Q.: WHEN IT TALKS AT THE TOP ABOUT DESPITE SOME

12 VARIABILITY IN THE LENGTH OF THE BLOW FLY DEVELOPMENT CYCLE WHAT

13 ARE YOU TELLING US — WHAT ARE YOU TRYING TO CONVEY WITH THIS

14 SENTENCE?

15 A.: THERE IS A VARIABILITY IN THE DEVELOPMENT. IT’S

16 DEPENDENT ON TEMPERATURE, HUMIDITY, THE WEATHER CONDITIONS, JUST

17 LIKE DECOMPOSITION. AND IT’S DEPENDENT ON THE VARIOUS SPECIES

18 AND THE FOOD SOURCE AVAILABLE.

19 IF IT’S A VERY ENRICHED FOOD SOURCE THEY CAN

20 DEVELOP MUCH FASTER, RAPIDLY, WHEREAS IF IT’S A VERY POOR FOOD

21 SOURCE, JUST LIKE HUMANS, YOU’RE NOT GOING TO BE ABLE TO MOVE

22 ALONG IN YOUR LIFE CYCLE METABOLISM AS WELL.

23 Q.: WHEN YOU TALK ABOUT THE RULE OF THUMB THAT YOU

24 REFER TO HERE, IS THAT SOMETHING THAT APPLIES IN EVERY CASE OR

25 IS THAT JUST A GENERAL STARTING POINT?

26 A.: AGAIN, TALKING ABOUT INSECT ACTIVITY, POSTMORTEM

27 DECOMPOSITION. AGAIN, THEY ARE RULE OF THUMBS MUCH LIKE WE

28 TALKED EARLIER ABOUT POSTMORTEM RIGIDITY. YOU’LL SEE SOME

8793

1 VARIATIONS IN TEMPERATURES AND TIMEFRAMES WITH PEOPLE. AND

2 AGAIN, IT’S JUST A GENERAL RULE OF THUMB. IT IS NOT AN EXACT

3 SCIENCE. WE DO HAVE QUITE A BIT OF INFORMATION AND HAVE

4 CONDUCTED VERY EXTENSIVE STUDIES, BUT WE STILL HAVE TO RELY ON

5 THE INFORMATION WE HAVE AND OUR PAST EXPERIENCE WITH BODIES THAT

6 WE KNOW HAVE BEEN DECEASED UNDER SPECIFIC CONDITIONS.

7 Q.: THE MORE EXPERIENCE YOU HAVE THE BETTER YOU CAN

8 APPLY THE KNOWLEDGE IN THIS FIELD?

9 A.: THAT IS CORRECT. AND AGAIN, IT IS NOT AN EXACT

10 DETERMINATION. IT IS AN ESTIMATE.

11 Q.: YOU WERE ASKED REGARDING WIND DATA. WERE YOU

12 PROVIDED SOME DOCUMENTS THAT DID HAVE WIND DATA?

13 A.: I WAS.

14 Q.: DO YOU RECALL IF YOU WERE PROVIDED A DOCUMENT THAT

15 SHOWED WIND SPEEDS FROM THE RANCHO SAN DIEGO AREA?

16 A.: YES. THIS — ON THIS PARTICULAR DOCUMENT THE WIND

17 SPEED IS THE THIRD CHART. AND AGAIN, IT’S MEASURED IN MILES PER

18 HOUR AND KILOMETERS PER HOUR. THIS IS FOR THE MONTH OF FEBRUARY

19 OF 2002.

20 Q.: AND WERE YOU ALSO PROVIDED DOCUMENTS FROM

21 MONTGOMERY FIELD THAT ENLISTED WIND SPEEDS FOR THE MONTH OF

22 FEBRUARY IN MONTGOMERY FIELD?

23 A.: YES.

24 Q.: AND WERE YOU PROVIDED DOCUMENTS THAT SHOWED WIND

25 SPEEDS AT SANTEE, CALIFORNIA?

26 A.: AND I WILL CORRECTLY PRONOUNCE IT, SANTEE, YES.

27 Q.: ALL RIGHT.

28 AND WE CERTAINLY DIDN’T HAVE ANY WIND DOCUMENTS FOR

8794

1 THE GOLF COURSE, DID WE?

2 A.: NO, DUE TO THE NONWORKING INSTRUMENT.

3 Q.: REGARDING THE FLY ACTIVITY AROUND THE HEAD OR FACE

4 REGION OF DANIELLE VAN DAM, DID YOU PARTICIPATE IN ANYTHING AT

5 ALL TODAY TO TRY TO DETERMINE FIRSTHAND WHETHER OR NOT SHE HAD

6 FLY MAGGOT ACTIVITY AROUND HER FACE?

7 A.: ALLS I COULD SEE WAS JUST BY LOOKING AT THE

8 PHOTOGRAPHS, AND AGAIN THESE ARE PHOTOGRAPHS. THEY ARE SOMEWHAT

9 DETAILED BUT, AGAIN, THAT STILL DOESN’T FIRSTHAND — UNLESS I

10 HAVE AN EXTREMELY CLOSE UP PHOTOGRAPH THAT I CAN TELL — BUT I

11 COULDN’T DISCERN ANYTHING THAT WERE MAGGOTS. BUT THAT’S NOT

12 NECESSARILY TO SAY THAT THERE WASN’T ONE OR TWO THERE. I

13 JUST — I COULD SEE NO EVIDENCE OF — CLEAR EVIDENCE THAT, YOU

14 KNOW, MAGGOTS WERE THERE.

15 Q.: DID YOU SPEAK WITH DR. BLACKBOURNE TODAY?

16 A.: I — NO, I DIDN’T.

17 Q.: DID WE SPEAK ON THE TELEPHONE THIS MORNING?

18 A.: I DIDN’T PERSONALLY. THERE WAS A CONVERSATION

19 WHILE I WAS IN THE OFFICE WITH DR. BLACKBOURNE.

20 Q.: WERE YOU ABLE TO HERE WHAT HE HAD TO SAY?

21 A.: MY UNDERSTANDING —

22 MR. FELDMAN: OBJECTION, YES OR NO, OTHERWISE CALLS FOR

23 HEARSAY.

24 THE COURT: YES.

25 YOU MAY ANSWER THAT YES OR NO

26

27 BY MR. DUSEK:

28 Q.: WERE YOU ABLE TO HEAR HIM DISCUSS THE MAGGOT

8795

1 ACTIVITY?

2 MR. FELDMAN: ASSUMES FACTS NOT IN EVIDENCE AND LEADING.

3 THE COURT: OVERRULED.

4 YOU CAN ANSWER THAT SIMPLY YES OR NO, DOCTOR.

5 THE WITNESS: YES.

6

7 BY MR. DUSEK:

8 Q.: DID YOU HEAR HIM DISCUSS HIS OBSERVATIONS OF THE

9 BODY AND THE FLIES AND THE MAGGOTS?

10 A.: DR. BLACKBOURNE —

11 THE COURT: YES OR NO, DOCTOR?

12 THE WITNESS: OH, EXCUSE ME. YES.

13 MR. DUSEK: THANK YOU, SIR.

14 Q.: FROM — REGARDING THE LOCATION OF WHERE DANIELLE

15 VAN DAM WAS FOUND IN THE TREE SITUATION, WERE YOU ABLE TO

16 DETERMINE FROM EITHER THE PHOTOGRAPHS OR BEING AT THE SCENE TWO

17 DAYS AGO WHETHER OR NOT SHE WOULD HAVE BEEN ENTIRELY SHADED

18 DURING HER STAY UNDERNEATH THAT TREE?

19 A.: IN THE PHOTOGRAPHS IT APPEARS THAT SHE WOULD BE FOR

20 THE MOST PART ENTIRELY SHADED. AND WHEN I VISITED THE SCENE IT

21 WAS CERTAINLY QUITE SHADED. YOU MAY HAVE HAD SPOTTING THROUGH

22 THE LEAVES, AS ONE WOULD HAVE WITH ANY TYPE OF TREE VEGETATION,

23 BUT JUST THE MAJORITY WOULD BE SHADE IF YOU HAD TO DO IT FROM A

24 DARKER LIGHT.

25 Q.: BASICALLY SHE WAS FAIRLY CLOSE TO THE TRUNK OF THE

26 TREE, WASN’T SHE?

27 A.: YES.

28 MR. FELDMAN: OBJECTION, NO FOUNDATION.

8796

1 THE COURT: OVERRULED.

2 YOU CAN ANSWER.

3 THE WITNESS: ON THE PHOTOGRAPHS THERE IS A — THERE’S

4 SOME EXTENSION OF THE TRUNK ROOTS ABOVE THE GROUND, AND YOU

5 COULD SEE THIS IN THE SCENE PHOTOGRAPHS, AND THE TRUNK WAS STILL

6 VISIBLE THERE AT THE SCENE.

7

8 BY MR. DUSEK:

9 Q.: ANY DIRECT SUN THAT SHE WOULD GET WOULD COME DOWN

10 THROUGH THE LEAVES OF THE TREE?

11 A.: THAT’S WHAT IT APPEARED, YES.

12 Q.: THE FACT THAT SHE WAS IN SHADE, DOES THAT IMPACT

13 YOUR FINDING ON MUMMIFICATION AND P. M. I.?

14 A.: SUN AND SHADING BOTH ASSIST IN THE MUMMIFICATION.

15 THE SUN ACTS TO DRY, SHADE BASICALLY KEEPS THE AREA COOL, AND SO

16 THERE’S A COMBINATIONAL EFFECT.

17 Q.: INCREASING THE MUMMIFICATION OR DECREASING?

18 A.: IT CAN ASSIST IN THE MUMMIFICATION.

19 Q.: WE HEARD ABOUT THE FROST ON THE GOLF COURSE ON

20 THOSE DAYS IN FEBRUARY. WHAT IMPACT IS THAT GOING TO HAVE ON

21 ANY LARVA EGGS THAT ARE LAID ON A BODY?

22 A.: WHEN A —

23 MR. FELDMAN: YOUR HONOR, OBJECTION, THAT MISSTATES THE

24 EVIDENCE. THEY’RE NOT LAID ON THE BODY.

25 THE COURT: REPHRASE IT AS TO THE POSITION OF THE EGGS

26 AND I’LL ALLOW IT.

27

28 ///

8797

1 BY MR. DUSEK:

2 Q.: REGARDING THE FROST SITUATION, IS THAT GOING TO

3 HAVE ANY SITUATION REGARDING THE EGGS THAT ARE ANY WAY CONNECTED

4 TO THE BODY?

5 A.: THE EGGS, IF THEY HAVE BEEN LAID ON THE BODY AND

6 FROST OCCURS, CERTAINLY THESE COOLER TEMPERATURES AND STUFF CAN

7 HAVE SOME DELAYED EFFECT IN THEIR DEVELOPMENT. IF ADULTS ARE

8 LAYING, OBVIOUSLY THEY’RE NOT GOING TO DEPOSIT THEIR EGGS ON A

9 BODY THAT HAS FROST ON IT. IT’S TOO COLD. IT’S NOT A

10 HOSPITABLE ENVIRONMENT.

11 Q.: SO IF THERE’S A FROST CONDITION THERE THAT WOULD

12 PROLONG THE DEVELOPMENT OF THOSE EGGS?

13 A.: MY UNDERSTANDING THAT THERE WOULD — THESE COLD

14 TEMPERATURES CAUSE SOME TYPE OF — I HONESTLY CAN’T TELL YOU HOW

15 MUCH OF A DELAY. THIS IS SOMETHING MORE FOR A FORENSIC

16 ENTOMOLOGIST TO ANSWER.

17 Q.: AND REGARDING YOUR WORK WITH PATHOLOGISTS, IS THERE

18 A TIME WHEN THEY CALL YOU OUT TO RELY UPON YOUR EXPERTISE IN A

19 DEAD BODY SITUATION?

20 A.: I AM TYPICALLY CALLED BY THE PATHOLOGISTS, MY

21 COLLEAGUES IN MY OFFICE AND OTHER PATHOLOGISTS THAT I WORK WITH

22 IN THE STATE OF MARYLAND AND AROUND THE COUNTRY. AND THAT IS IN

23 ADDITION TO IDENTIFICATION BASED ON THE REMAINS. I AM ASKED

24 MANY TIMES TO MAKE A DETERMINATION OF THE POSTMORTEM INTERVAL

25 BASED ON MY EXPERIENCE AND BACKGROUND IN HUMAN DECOMPOSITION.

26 Q.: SO THE MEDICAL DOCTORS CALL YOU OUT TO HELP

27 DETERMINE THE TIME OF DEATH?

28 A.: YES.

8798

1 Q.: HOW LONG HAS THAT BEEN GOING ON FOR YOU?

2 A.: CERTAINLY PROFESSIONALLY SINCE I’VE BEEN EMPLOYED

3 IN 1985.

4 Q.: IS IT JUST WITH NEW AND INEXPERIENCED PATHOLOGISTS

5 OR A FULL RANGE OF THEM?

6 A.: I HAVE GOTTEN REQUESTS FROM SOME OF THE MOST

7 EXPERIENCED IN THE COUNTRY.

8 Q.: REGARDING THE BODY PARTS THAT WERE NOT FOUND INSIDE

9 DANIELLE VAN DAM, WERE THERE OTHER ORGANS FOUND INSIDE HER?

10 A.: YES, THERE WERE.

11 Q.: HOW ATTRACTIVE ARE THOSE GOING TO BE TO A FLY

12 SEEKING TO PROLONG THE CYCLE?

13 A.: IF THEY’RE IN GOOD CONDITIONS OR STILL — THEY’RE

14 SOFT TISSUE REMNANTS, THEY’RE GOING TO BE ATTRACTED TO FLIES.

15 IN THIS PARTICULAR CASE HER HEART IS THERE. HER BRAIN WAS STILL

16 THERE, ALTHOUGH AUTOLYZED. AND I CERTAINLY CAN TELL YOU FROM

17 EXPERIENCE THAT THOSE TYPES OF TISSUES, THOSE TYPES OF CONDITION

18 ARE STILL FOOD SOURCES AND ATTRACTIVE TO FLIES.

19 Q.: ONCE THE BODY’S OPENED UP?

20 A.: OR THEY MAY TRY — IF THEY CAN SMELL. THESE

21 DECOMPOSITIONAL SMELLS OR ODORS LEACH THROUGH THE BODY. IT’S —

22 IT’S NOT LIKE AN INDEPENDENT BURIAL FOR ODOR. THAT’S VERY SMALL

23 MOLECULES. SO MANY TIMES, JUST AS I GAVE MY EXAMPLE OF THE

24 FLIES DEPOSITING THEIR EGGS OUTSIDE OF A TRASH CAN, OR MANY OF

25 YOU HAVE HAD TRASH YOU’VE THROWN OUT AND IT’S GOT A LOT OF

26 DECOMPOSING MATERIAL, FLIES, THEY’LL SMELL IT. THEY’LL MANY

27 TIMES DEPOSIT SOME EGGS THINKING THAT THERE IS SOME FOOD SOURCE.

28 SO IT WILL BE ATTRACTIVE BUT UNLESS THEY CAN GET TO IT THERE’S

8799

1 NOT MUCH GONNA HAPPEN.

2 MR. DUSEK: THANK YOU, DOCTOR.

3 THE COURT: ANYTHING FURTHER, MR. FELDMAN.

4

5 RECROSS-EXAMINATION +

6 BY MR. FELDMAN:

7 Q.: YOU’RE TALKING ABOUT FLIES, AND I THINK YOU TOLD US

8 THAT SOME FLIES MIGHT GO TO THE HEART, AS I THINK MR. DUSEK JUST

9 TALKED ABOUT. BUT YOU’RE NOT A FORENSIC ENTOMOLOGIST. YOU

10 DON’T KNOW WHICH SPECIES OF FLIES?

11 A.: I HAVE SOME KNOWLEDGE. I DID WRITE CO-AUTHOR A

12 CHAPTER IN FORENSIC ENTOMOLOGY IN SPITZ AND FISHER’S

13 MEDICAL/LEGAL INVESTIGATION, WHICH IS A PRIMARY TEXTBOOK. IS

14 THAT THERE, A COPY?

15 Q.: YEAH.

16 A.: A SECOND EDITION THAT DR. SPITZ ASKED DR. LORD AND

17 I TO AUTHOR. AND THERE ARE SPECIES, AS I MENTIONED, THAT COME

18 EARLY. ONE OF THE EARLY SPECIES BASED ON ENTOMOLOGICAL STUDY IS

19 THE GREEN BLOW FLY. THERE’S A PARTICULAR SPECIE, I BELIEVE IT’S

20 PHAENICIA SERICATA, WHICH IS CONSIDERED, YOU KNOW, ONE OF THE

21 PRIMARY SPECIES.

22 Q.: ON THAT ONE, ON THE PHAENICIA SERICATA, THAT’S A

23 BLOW FLY, RIGHT?

24 A.: VERY GOOD PRONOUNCIATION.

25 Q.: AND WITH REGARD TO BLOW FLIES — WE’RE GETTING A

26 LOT OF PRACTICE, I’M TELLING YOU. TOO MUCH.

27 WITH REGARD TO BLOW FLIES, THEY DON’T LAY EGGS ON

28 THE BODY. THEY LAY EGGS IN THE BODY, ISN’T THAT TRUE?

8800

1 A.: THAT IS AN INCORRECT STATEMENT.

2 Q.: OKAY.

3 SO WHEN YOU DISCUSSED WITH MR. DUSEK — I JUST WANT

4 TO CLARIFY, IT’S YOUR TESTIMONY, THE BLOW FLIES, THEY DON’T LAY

5 ON THE BODY, THEY — IT’S YOUR TESTIMONY THEY DO LAY ON THE

6 BODY, THEY DON’T NECESSARILY LAY INSIDE THE BODY, LIKE INSIDE

7 THE UROGENITAL OPENING OR IN THE EYE OR IN THE NOSTRILS OR IN

8 THE MOUTH, CORRECT?

9 A.: BLOW FLIES WILL DEPOSIT THEIR EGGS ON THE BODY, IN

10 THE BODY, AROUND THE BODY.

11 Q.: BUT PRIMARILY DON’T THEY NEED TO BE — THEIR LARVAE

12 TO BE INSIDE THE BODY IN A PROTECTED AREA SO THAT THE MAGGOTS

13 CAN GROW AND DEVELOP?

14 A.: NO.

15 Q.: SO WITH REGARD TO THE ISSUE OF WHERE A BLOW FLY

16 MIGHT GO, ISN’T IT CORRECT THAT A BLOW FLY WILL GO TO AN AREA

17 WHERE THERE IS TRAUMATIC INJURY GENERALLY?

18 A.: THEY WILL SEEK THOSE AREAS OUT IF IT PRODUCES A LOT

19 OF SOFT TISSUE VERSUS THE SITES THAT PROVIDE LESS OF A NUTRIENT

20 SUBSTANCE FOR THEIR ENERGY.

21 Q.: SO COUNSEL JUST ASKED YOU WHETHER OR NOT THEY’D GO

22 TO THE HEAD OR NECK AREA IN A CIRCUMSTANCE LIKE THIS BUT YOU DID

23 NOT MENTION THE UROGENITAL AREA. DID YOU FORGET THAT OR —

24 A.: NO. THEY CERTAINLY CAN GO TO THAT AREA.

25 Q.: AND IF THERE WAS A TRAUMA TO THE VAGINAL AREA MIGHT

26 THAT INVITE THE FLIES?

27 A.: CERTAINLY WE HAVE CASES WHERE WE CAN SEE LARGE

28 BOLUS OR MASSES OF MAGGOTS IN THE UROGENITAL TRACT, AND IF IT IS

8801

1 IN THE SIGNIFICANT SIZES AND PORTION, THAT CAN GIVE US SOME

2 INFERENCE OR HYPOTHESIS THAT THERE POSSIBLE WAS SEXUAL ABUSE, OR

3 TEARING OF THE TISSUES THERE OR SOME OTHER KIND OF MUTILATIONS.

4 BUT THE FLIES TYPICALLY WILL GO TO THE EYES, NOSE AND MOUTH

5 WHERE YOU HAVE PRESENT FLUIDS, AND WILL SEEK OUT OTHER AREAS IF

6 EXPOSED.

7 AND SO IF, AS I MENTIONED BEFORE, IF SOMEONE HAS —

8 DIES AS A RESULT OF A GUNSHOT WOUND, FLIES WILL PRIMARILY

9 INHABIT THAT OPEN WOUND BECAUSE IT IS — CERTAINLY THE BLOOD AND

10 THE SURROUNDING ORGAN MATERIAL IS A MUCH MORE NUTRIENT MEAL, AND

11 THEY WILL STILL GO TO SOME OF THE OTHER OPENINGS OF THE BODY,

12 THE NATURAL OPENINGS, BECAUSE THEY ARE LOOKING FOR FOOD WHEREVER

13 THEY CAN GET IT.

14 Q.: AND EARLIER NOW, THIS IS THE THIRD TIME YOU’VE HAD

15 THE PLEASURE OF YOUR WORDS, YOU SPECIFICALLY INDICATED "ON

16 BODIES WHICH HAVE NOT EVEN SUFFERED TRAUMA, THEY’LL GO TO THE

17 NATURAL BODY OPENINGS AND IF EXPOSED THE ANUS AND GENITALIA,"

18 CORRECT?

19 A.: THAT IS CORRECT.

20 Q.: THIS LITTLE GIRL WAS NAKED. DOESN’T THAT PUT HER

21 IN A POSITION WHERE SHE’S — HER ANUS AND GENITALIA ARE EXPOSED?

22 A.: CERTAINLY. HER GENITALIA AND HER FACIAL AREA WOULD

23 BE EXPOSED.

24 Q.: WITH REGARD TO THE WEATHER DATA, SIR, DOES IT MAKE

25 A DIFFERENCE TO YOU WHETHER THE DATA IS NATIONAL WEATHER SERVICE

26 AS OPPOSED TO ANY OTHER?

27 A.: IT CERTAINLY HAS SOME RELEVANCE, AND THIS IS WHY IN

28 LOOKING AT THE TEMPERATURES IN THE SHEET THAT WE HAVE REVIEWED

8802

1 EARLIER WITH SINGING HILLS, EL CAJON, BROWN FIELD, SANTEE,

2 MONTGOMERY FIELD, LOOKING AT THIS DATA CERTAINLY THE — I

3 BELIEVE BROWN FIELD THAT DR. HASKELL USED IS A N. O. A.

4 AUTHORIZED OR ACCREDITED.

5 Q.: YOU USED A TERM WE HAVEN’T HAD IN THE COURT BEFORE,

6 N. O. A.

7 A.: LET ME SEE IF I RECALL WHAT IT MEANS. NATIONAL

8 OCEANOGRA — IT’S BASICALLY OUR METEOROLOGICAL SERVICE FOR THE

9 U. S.

10 Q.: NATIONAL METEOROLOGICAL ISSUE. IN OTHER WORDS,

11 IT’S AN AUTHORIZED WHATEVER REPRESENTATIVE?

12 A.: IT’S A GOVERNMENT ENTITY THAT WATCHES OUR WEATHER

13 PATTERNS AND RECORDS THEM.

14 Q.: ALL RIGHT.

15 KIND OF LIKE THE NATIONAL WEATHER SERVICE? AT

16 LEAST IT HAS THAT LEVEL OF CREDENTIAL, FAIR?

17 A.: THAT IS FAIR.

18 Q.: ALL RIGHT.

19 A.: THE OTHER PLACES MAY — FOR EXAMPLE, THE SINGING

20 HILLS, THEY HAVE, MY UNDERSTANDING, THEY HAVE PEOPLE THAT COME

21 OUT AND SERVICE THAT EQUIPMENT TO CALIBRATE IT. IT’S NOT ON A

22 REGULAR BASIS.

23 Q.: ONCE EVERY SIX MONTHS ENOUGH TO SATISFY YOU AS A

24 SCIENTIST THAT THINGS ARE ACCURATE FOR CALIBRATION PURPOSES?

25 MR. DUSEK: OBJECTION, SPECULATION.

26 THE COURT: OVERRULED.

27 YOU CAN ANSWER.

28 THE WITNESS: CALIBRATION IN A WAY IS — DEPENDING ON THE

8803

1 INSTRUMENTATION IS A RELATIVE THING. I MEAN, YOU CAN GET SOME

2 SOPHISTICATED INSTRUMENTATION GO BAD ON YOU IN TWO DAYS.

3

4 BY MR. FELDMAN:

5 Q.: AND WHERE THE INSTRUMENTATION IS HIT BY A GOLF BALL

6 AND IT’S NOT CALIBRATED FOR ANOTHER THREE MONTHS, DO YOU THINK

7 THAT MIGHT AFFECT THE ACCURACY OF THE INFORMATION?

8 A.: DEPENDING ON WHAT’S BUSTED ON IT.

9 BUT AGAIN, LOOKING AT THESE WEATHER PATTERNS — IN

10 FACT, I DID SOME JUST IN LOOKING FOR MY OWN EDIFICATION COMBINED

11 WEATHER DATA FROM SINGING HILLS, BROWN FIELD AND EL CAJON THAT

12 FAULKNER USED, JUST DID AVERAGES AND —

13 Q.: NOW, AS YOU’RE SAYING DID THE AVERAGES, I

14 UNDERSTAND WHERE YOU’RE GOING.

15 WHAT I WANT TO ASK YOU, THOUGH, IS WHETHER OR NOT

16 YOU’RE FAMILIAR WITH ANY STUDIES THAT SAY THAT THAT — THAT

17 AVERAGING OF VARIOUS SERIES OF WEATHER DATA IS AN APPROPRIATE

18 MEANS IN WHICH TO ATTEMPT TO CALCULATE AN ENVIRONMENT WHERE BLOW

19 FLIES MIGHT GROW.

20 ARE YOU FAMILIAR WITH ANY STUDIES THAT SUPPORT THE

21 NOTION THAT IT’S SCIENTIFICALLY APPROPRIATE FOR YOU TO TAKE A

22 SERIES OF WEATHER DATA, LIKE YOU JUST SAID, AND RENDER AN

23 OPINION?

24 A.: IT’S BEEN UTILIZED ALL THE TIME BECAUSE WE DON’T —

25 AT THE SITES WE DON’T HAVE AN EXACT WHETHER — AND WE HAVE TO DO

26 THE BEST WE CAN DO. SO WE TYPICALLY LOOK FOR THE CLOSEST

27 WEATHER STATIONS.

28 Q.: WHEN YOU SAY AT THE SITES, YOU’RE TALKING ABOUT THE

8804

1 SITES LIKE IN KOSOVO WHERE YOU’RE CALLED ON TO DETERMINE CAUSE

2 OF DEATH, IDENTITY?

3 A.: SITES OF ANY BODY THAT IS FOUND. WE FIND A

4 DECEASED IN THE WOODS, IN A HOUSE, OUTSIDE THE YARD, WE’LL LOOK

5 AT THE TEMPERATURE RECORDS. WE’LL GO TO THE CLOSEST

6 METEOROLOGICAL STATIONS. WE MAY NOT EVEN DEPEND ON SOME OF THE

7 METEOROLOGICAL STATIONS BECAUSE MAYBE AT THE SCENE WE KNOW THAT

8 TEMPERATURES MAY BE A LITTLE BIT HIGHER OR COOLER. SO WE USE

9 WHAT IS THE BEST IN FORENSIC ENTOMOLOGY.

10 THEY WILL USE THE A. D. H., THE ACCUMULATED DEGREE

11 HOUR. I BELIEVE DR. HASKELL HAS AN ENTOMOLOGICAL CALCULATION.

12 BUT HERE WE’RE TALKING — LOOKS TO BE, BASED ON MY OPINION, A

13 VERY LENGTHY TIME PERIOD, THE MUMMIFIED REMAINS.

14 AND AS I SAID, THE FURTHER OUT WE GO SPECIFIC

15 CHANGES IN TEMPERATURE WHEN WE’RE TALKING, YOU KNOW, TWO, THREE,

16 FOUR DEGREES AS OF SUCH, WE’RE, YOU KNOW, GETTING AN AMOUNT.

17 WHAT WE’RE LOOKING AT IS GENERAL WEATHER CONDITIONS, WHAT IS OUR

18 BEST ASSUMPTIONS OR ESTIMATES.

19 Q.: AND YOUR BOTTOM LINE, AT LEAST IN YOUR CONCLUSIONS,

20 IS THAT THE POSTMORTEM INTERVAL, BASED ON THE ENTOMOLOGIC

21 EVIDENCE AS NOTED IN THE REPORTS OF MR. FAULKNER AND DR.

22 HASKELL, REPRESENT HOW LONG SINCE THE COLLECTED INSECTS HAVE

23 DEVELOPED ON THE REMAINS, CORRECT?

24 A.: YES. IT IS MY OPINION THAT THOSE INSECTS

25 REPRESENT — AND IF — I DON’T RECALL IF I HAD NOTED IN PREVIOUS

26 TESTIMONY, INSECTS REPRESENT — THAT ARE COLLECTED AND ANALYZED.

27 MR. FELDMAN: YOUR HONOR, THERE’S NO QUESTION PENDING,

28 I’M SORRY.

8805

1 THE COURT: YOU’VE ANSWERED THE QUESTION, DOCTOR.

2 NEXT QUESTION.

3 MR. FELDMAN: I HAVE NO FURTHER QUESTIONS.

4 THE COURT: ANYTHING FURTHER?

5 MR. DUSEK: NO, YOUR HONOR.

6 THE COURT: ALL RIGHT.

7 IS THE DOCTOR TO BE EXCUSED?

8 MR. FELDMAN: NO OBJECTION. THANK YOU.

9 THE COURT: ALL RIGHT. DOCTOR, THANK YOU VERY MUCH FOR

10 COMING IN AND DISRUPTING YOUR PLANS. APPRECIATE IT.

11 PLEASE REMEMBER, HOWEVER, YOU’RE UNDER AN

12 ADMONITION NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THIS

13 MATTER’S CONCLUDED. ALL RIGHT? THANK YOU.

14 OKAY. LADIES AND GENTLEMEN, I’LL GO OVER A COUPLE

15 THINGS WITH YOU IN PUBLIC AND THEN I’M GOING TO CLOSE THE

16 COURTROOM SO THAT WE CAN DISCUSS SOME MORE ABOUT WHAT WE’VE

17 TALKED ABOUT EARLIER.

18 AS A RESULT OF THE APPOINTMENTS THAT HAVE BEEN SET

19 FOR FRIDAY, TOMORROW, WE WILL NOT BE IN SESSION ON MONDAY AND,

20 AS I INDICATED — I MEAN ON FRIDAY. SEE, THAT’S A FREUDIAN SLIP

21 BECAUSE WE WON’T BE IN SESSION ON MONDAY. AND THE REASON WE’RE

22 NOT GOING TO BE IN SESSION ON MONDAY IS, I EXPLAINED TO YOU, THE

23 NEXT PROFESSIONAL WITNESS THE PEOPLE HAVE IS GOING TO HAVE TO

24 CAUSE A RESCHEDULING, AND THE EARLIEST HE CAN GET HERE IS ON

25 TUESDAY. THE PEOPLE DO HAVE SOME OTHER WITNESSES BUT THEY’RE

26 GOING TO BE RELATIVELY SHORT AND, AS A RESULT, RATHER THAN BRING

27 YOU IN ON MONDAY FOR PERHAPS AN HOUR, HOUR AND A HALF OF

28 TESTIMONY, WE’RE JUST GOING TO RESUME ON TUESDAY SO THAT YOU

8806

1 DON’T HAVE TO DISRUPT YOUR ENTIRE DAY.

2 SO TOMORROW WE’RE OFF AS A RESULT OF NORMAL COURSE.

3 WE WILL NOT BE IN SESSION ON THE MATTER ON MONDAY. THE LAWYERS

4 AND I, HOWEVER, WILL BE WORKING ON MONDAY. SO THE NEXT TIME

5 WE’RE GOING TO NEED YOU IS TUESDAY AT 9 O’CLOCK. AND I’LL HAVE

6 FURTHER INSTRUCTIONS FOR YOU IN JUST A MOMENT.

7 AT THIS TIME WE’RE GOING TO CLOSE THE PUBLIC

8 SECTION OF THE TRIAL, INCLUDING THE MEDIA INVOLVEMENT, AS A

9 RESULT OF THE CONCERNS I’VE PREVIOUSLY EXPRESSED.

10

11 (WHEREUPON THE COURTROOM IS CLEARED OF ALL SPECTATORS.)

12

13

14 (SEALED PROCEEDINGS FOLLOW THIS DATE, PAGES 8807

15 THROUGH 8810, BOUND IN SEPARATE VOLUME 36E.

16 UNSEALED PROCEEDINGS CONTINUE ON PAGE 8811.

17 NOTHING OMITTED.)

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8807

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8811

1 THE COURT: THE RECORD SHOULD REFLECT THE JURORS AND

2 ALTERNATES HAVE LEFT THE COURTROOM.

3 MIKE, I FORGOT TO TELL THE MEDIA THAT THEY CAN COME

4 IN MONDAY IF THEY SO ELECT. WE’RE NOT GOING TO TRY AND CRAM THE

5 JURY INSTRUCTIONS ON A FRIDAY. COUNSEL, ON MONDAY, I’M SURE ALL

6 OF US CAN DO OTHER THINGS IF WE GET THE MATTER OF JURY

7 INSTRUCTIONS RESOLVED EARLY ON. SO WE’LL MEET MONDAY AT 8:30

8 FOR THE SPECIFIC PURPOSE OF JURY INSTRUCTIONS.

9 MR. FELDMAN, I HAVE RECEIVED THE PEOPLE’S PACKAGE

10 ALONG WITH THEIR ARGUMENTS RELATIVE TO WHAT THEY BELIEVE IS THE

11 APPROPRIATE INSTRUCTIONS GIVEN THE EVIDENCE IN THE CASE. SO ON

12 MONDAY I WOULD APPRECIATE IT IF YOU’RE —

13 MR. FELDMAN: I’M SORRY, I APOLOGIZE TO THE COURT.

14 INTERNALLY WE HAVE THE DRAFT. I JUST DON’T — DID YOU ASK — I

15 APOLOGIZE. I CAN’T REMEMBER WHETHER YOU TOLD US TO PREPARE THE

16 PACKAGE. I THINK YOU SAID YOU WANTED US TO PREPARE THE SPECIFIC

17 LANGUAGE INSTRUCTIONS AS OPPOSED TO JUST CALJIC 14.2, ET CETERA.

18 THE COURT: IT’S REALLY NOT NECESSARY BECAUSE THEY CAN BE

19 ADAPTED. I HAVEN’T ACTUALLY READ THE INSTRUCTIONS, BUT HAVE YOU

20 MADE THEM SPECIFIC AS TO THIS CASE?

21 MR. DUSEK: I THINK THE MURDER ONE WE HAVE WITH THE

22 FELONY MURDER. I BELIEVE THERE IS ONE SPECIAL INSTRUCTION WE’VE

23 INSERTED. IF THE DEFENSE HAS OTHER CALJICS THEY WANT WE CAN

24 CERTAINLY PROVIDE THOSE. IF THEY HAVE SPECIALS, WE WOULD LIKE

25 TO HAVE THOSE —

26 MR. FELDMAN: OF COURSE.

27 MR. DUSEK: — TOMORROW.

28 MR. FELDMAN: AND I’LL TALK TO COUNSEL AND LET THEM — WE

8812

1 CAN DEAL WITH THESE.

2 THE COURT: ALL RIGHT.

3 AND THE ONLY THING I WOULD REQUEST IS THAT IF THERE

4 ARE GOING TO BE SPECIAL INSTRUCTIONS, THAT YOU’RE GOING TO BE

5 OBVIOUSLY IN DISAGREEMENT ON, BE SURE AND BRING COPIES AS SOON

6 AS YOU CAN SO THE COURT CAN REVIEW THEM.

7 MR. FELDMAN: I CAN TELL YOU ALREADY WE’VE GOT A BARTON

8 PROBLEM WITH WHAT THEY’VE SUBMITTED.

9 THE COURT: ALL RIGHT. GOOD OLD MR. BARTON JUST PASSED

10 AWAY, AS A MATTER OF FACT.

11 MR. FELDMAN: BUT IF WE KNEW THAT IT WAS YOUR CASE, YOUR

12 HONOR —

13 THE COURT: WELL, THEY’RE OUT THERE, HE BEING AMONG THEM.

14 ALL RIGHT. WE’LL BE IN RECESS THEN UNTIL MONDAY AT

15 8:30.

16 MR. FELDMAN: THANK YOU, YOUR HONOR.

17 THE COURT: ALL RIGHT.

18

19 (AT 3:58 P.M. AN ADJOURNMENT WAS TAKEN.)

20

21 –OCC–

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