39 – Day 10- June 19th 2002 – Transcript criminal trial David Westerfield

TRIAL DAY 10 – PART 4 – afternoon 2
SAN DIEGO, CALIFORNIA, WEDNESDAY, JUNE 19, 2002, 1:27 P.M. (afternoon 2)


WITNESSES:
Jeffrey Brent Graham (latent print examiner, found a fingerprint which was not Westerfield on Van Dam’s door, cross-exam)
Pat Wertheim (fingerprint examiner crime laboratory Tucson, was asked to compare known prints with latent prints)


1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.
2 ALL RIGHT. MR. FELDMAN.
3 MR. FELDMAN: THANK YOU.

4 Q. WE WERE OVER — WE DISCUSSED AT BREAK — I’M SORRY,

5 I’LL JUST SET THESE DOWN.

6 SIR, YOU INDICATED YOU THOUGHT THAT ONE OF THE

7 DIAGRAMS MIGHT BE BENEFICIAL TO YOU TO BE ABLE TO DESCRIBE

8 PARTICULAR LOCATIONS, IS THAT RIGHT?

9 A. YES, I DID.

10 Q. I’VE GOT A DIAGRAM. I THINK I WAS ASKING YOU

11 ABOUT — I KNOW I WAS ASKING YOU ABOUT SEVERAL OF THE PRINTS,

12 SIR. BUT AT LEAST FOR PURPOSES OF THIS DIAGRAM, I THINK YOU HAD

13 DESCRIBED AN OUTSIDE DOOR, IS THAT RIGHT?

14 A. A SIDE DOOR.

15 Q. I’M SORRY. I FORGOT WHICH “Q” NUMBER IT WAS?

16 A. Q8 — NO, I’M SORRY. Q3-2.

17 Q. THANK YOU.

18 AT Q3-2 YOU TOLD US THERE WAS AN OUTSIDE DOOR AND

19 POTENTIALLY A FINGERPRINT WHICH MIGHT HAVE EXCLUDED MR.

20 WESTERFIELD, IS THAT RIGHT, SIR?

21 A. A SIDE DOOR. THE PRINT WAS LIFTED FROM THE INSIDE

22 OF THE SIDE DOOR AND MR. WESTERFIELD DID NOT MAKE THAT PRINT.

23 Q. AND WE HAVE IN THE GENERAL AREA OF 16 WHICH IS THE

24 EXHIBIT “A” RED CIRCLE. COULD YOU JUST POINT OUT WHICH DOOR YOU

25 THINK IT REPRESENTS, PLEASE?

26 A. I BELIEVE IT’S THIS DOOR HERE.

27 Q. AND WHEN YOU SAY “THIS DOOR HERE,” I AM GOING TO

28 TAKE JUST A BLUE PEN IF THAT’S OKAY, AND WOULD YOU POINT AT IT
5630
1 AND JUST CIRCLE IT OR I’LL MOVE THE CHART TO YOU, WHICHEVER. SO

2 FOR THE RECORD, I’VE DRAWN A CIRCLE IN THE AREA. HAVE I DRAWN,

3 SIR, ACCURATELY THE CIRCLE WHERE YOU WERE POINTING?

4 A. YES. I’M NOT SURE, ALL IT SAYS IS “SIDE DOOR

5 INSIDE” SO THAT’S THE DOOR I BELIEVE.

6 Q. SO I’M GOING TO PUT “J.G.” FOR YOUR INITIALS.

7 FOR THE RECORD, ON 16 I’VE DRAWN A BLUE CIRCLE AND

8 DRAWN THE INITIALS J. G.

9 I’M IN 15 OF 18, SIR, IN Q3. WHERE WAS THAT?

10 A. INNER SCREEN DOOR FRAME.

11 Q. DO WE SEE THAT?

12 A. I BELIEVE IT WOULD BE HERE, PATIO SLIDING DOOR, THE

13 SCREEN DOOR, THE PATIO SLIDING DOOR.

14 Q. ALL RIGHT.

15 NOW, SIR, MR. DUSEK HAD ASKED YOU QUESTIONS ABOUT

16 GLOVES. IF A PERSON WAS WEARING GLOVES AND THEY HAD, WE’LL SAY

17 OVERLAID OR PUSHED — MOVED THEIR HAND OVER AN EXISTING PRINT

18 MIGHT YOU SEE SOME EVIDENCE OF SMUDGING?

19 A. YES.

20 Q. IF A PERSON WAS TRYING TO WIPE OUT HIS OR HER

21 FINGERPRINTS MIGHT YOU SEE SOME EVIDENCE OF WIPING?

22 A. YOU MIGHT, YES.

23 Q. DID YOU SEE ANY EVIDENCE THAT CAUSED YOU TO BELIEVE

24 THAT ANYBODY THAT MAY HAVE ENTERED IN ANY OF THESE DOORS WAS

25 WEARING GLOVES?

26 A. I WASN’T THERE AT THE TIME. ALL I CAN EVALUATE ARE

27 THE LISTS THAT WERE SUBMITTED TO ME, SO I DON’T KNOW.

28 Q. AND REALLY, THAT’S YOUR JOB IS TO EVALUATE THAT
5631
1 WHICH IS PRESENTED TO YOU, CORRECT?

2 A. YES.

3 Q. AND SEE WHETHER YOU CAN MAKE THE IDENTIFICATION?

4 A. YES.

5 Q. IN THIS CASE HOW MANY TOTAL PRINTS DO YOU THINK YOU

6 LOOKED AT, SIR?

7 A. MAYBE 250 IMPRESSIONS, 325 CARDS AND PHOTOGRAPHS.

8 Q. AND YOU SAID THAT IT WAS ONLY ON RARE OCCASIONS OR

9 ON SOME OCCASIONS THAT YOU WOULD, IN FACT, GO OUT INTO THE

10 FIELD, IS THAT RIGHT?

11 A. YES.

12 Q. THIS WAS SUCH A CASE, THOUGH, THAT CAUSED YOU TO

13 THINK IT WAS APPROPRIATE TO GO OUT INTO THE FIELD, IS THAT

14 RIGHT?

15 A. THERE ARE SOME REASONS WHY I WENT OUT, YES.

16 Q. ONE OF THE REASONS WAS THAT YOU WERE CONCERNED

17 ABOUT WHAT WAS LOCATED INSIDE THE MOTOR HOME, ISN’T THAT RIGHT?

18 A. I WENT TO THE MOTOR HOME FOR THREE REASONS.

19 Q. OKAY. I’M ASKING.

20 A. ONE — THE FIRST REASON WAS TO TAKE THE

21 MEASUREMENTS THAT I WANTED. THE SECOND REASON, I HEARD AFTER

22 THE PRELIMINARY HEARING THAT THE EARRING BACKING WAS MISSING

23 FROM DANIELLE. SO I WANTED TO GO IN THERE AND LOOK AROUND THE

24 BED, ESPECIALLY IN THE AREAS BEHIND THE HEADBOARD AND DOWN BELOW

25 THE BED. I DID THAT.

26 Q. DID YOU FIND ANYTHING?

27 A. NO, I DIDN’T.

28 Q. THAT’S OUTSIDE YOUR JOB DESCRIPTION, ISN’T IT?
5632
1 A. I HAVE A LOT OF EXPERIENCE AS A FORENSIC SPECIALIST

2 SO — SO I’M JUST DUSTING OFF SOME OLD TRICKS.

3 Q. IN OTHER WORDS, IT’S NOT PART OF YOUR JOB AS A

4 FINGERPRINT EXAMINER?

5 A. NO, IT’S NOT.

6 Q. BUT IT DOES INDICATE TO A CERTAIN EXTENT, DOESN’T

7 IT, YOUR INTEREST IN RESOLVING THIS MATTER?

8 A. SOMETHING THAT I DIDN’T KNOW IF IT HAD BEEN

9 CONSIDERED AND I WANTED TO GO TAKE A LOOK, YES.

10 Q. ALL RIGHT.

11 AND THE THIRD REASON?

12 A. THIRD REASON I LOOKED AT THE AREAS THAT WERE

13 PROCESSED, ONE OF THE DIAGRAMS IS DOWN, BUT THE HORIZONTAL

14 CABINETS UP ABOVE, THEY LOOKED RELATIVELY CLEANED, LOOKED LIKE

15 THEY HADN’T BEEN POWDERED, SO THERE WERE SOME OTHER AREAS THAT I

16 POWDERED.

17 Q. WHEN YOU SAY “POWDERED” I THINK WHAT YOU’RE

18 COMMUNICATING IS THAT YOU DID WHATEVER THE EVIDENCE TECHS DO TO

19 TRY AND RAISE LATENT FINGERPRINTS?

20 A. I PROCESSED THOSE, YES, FOR ADDITIONAL PRINTS.

21 Q. DIDN’T FIND ANY, DID YOU?

22 A. FOUND ALL KINDS OF PRINTS, YES.

23 Q. THAT IMPLICATED MR. WESTERFIELD?

24 A. DIDN’T FIND MR. WESTERFIELD’S PRINTS IN HIS MOTOR

25 HOME, NO.

26 Q. DID YOU FIND USABLE LATENTS IN THE AREA THAT YOU

27 JUST DESCRIBED?

28 A. YES.
5633
1 Q. DID YOU IDENTIFY ANYBODY?

2 A. NO. NOBODY ELSE ADDITIONALLY HAS BEEN IDENTIFIED

3 IN THE MOTOR HOME, NO.

4 Q. SO IS ONE REASONABLE INFERENCE THEN — LET ME SAY

5 THIS A DIFFERENT WAY.

6 YOU JUST TOLD ME THAT YOU FOUND USABLE LATENTS IN

7 THE MOTOR HOME YOURSELF, IS THAT RIGHT?

8 A. YES.

9 Q. YOU DIDN’T IDENTIFY THEM TO ANY OF THE KNOWN

10 PEOPLE, IS THAT RIGHT?

11 A. YES.

12 Q. THEREFORE, ONE REASONABLE INFERENCE IS THAT

13 SOMEBODY ELSE MIGHT HAVE BEEN THERE, CORRECT?

14 MR. DUSEK: OBJECTION, ARGUMENTATIVE.

15 THE COURT: OVERRULED. YOU MAY ANSWER.

16 THE WITNESS: FROM WHAT I’VE HEARD, OTHER PEOPLE HAVE

17 BEEN IN THERE, YES.

18

19 BY MR. FELDMAN:

20 Q. WELL, BEFORE YOU HEARD ABOUT IT, SINCE YOU TOLD US

21 YOU HAD NO WAY OF KNOWING HOW LONG FINGERPRINTS HAD BEEN THERE,

22 AN INFERENCE — A REASONABLE INFERENCE THAT COULD BE DRAWN FROM

23 YOUR FINDING A USABLE LATENT FINGERPRINT IS THAT SOMEONE OTHER

24 THAN MR. WESTERFIELD WAS INSIDE THAT MOTOR HOME AT SOME POINT,

25 CORRECT?

26 A. SOMEONE OTHER THAN WESTERFIELD, OTHER THAN DANIELLE

27 VAN DAM AND THE OTHER TWO YOUNG LADIES, YES.

28 Q. AND ANYONE — DID YOU COMPARE THOSE PRINTS TO
5634
1 ANYONE ELSE?

2 A. FROM THE MOTOR HOME THERE WERE A TOTAL OF I BELIEVE

3 EIGHT PEOPLE THAT I COMPARED THOSE PRINTS TO.

4 Q. DIDN’T MAKE ANY OF THEM?

5 A. NO.

6 Q. AND DAVID WESTERFIELD WAS ONE OF THE PEOPLE —

7 A. RIGHT.

8 Q. — THAT YOU WERE LOOKING AT?

9 THE ORIENTATION THAT MR. DUSEK HAD YOU DESCRIBE OF

10 THE BANISTER —

11 A. YES.

12 Q. — YOU USED THE WORD “BACKWARDS.”

13 COULD YOU PLEASE SHOW THE JURY, RATHER THAN HAVE IT

14 DEMONSTRATED, COULD YOU SHOW THE JURY VARIOUS POSITIONS WHERE A

15 HAND COULD BE TO LEAVE THE IMPRESSION THAT YOU’VE IDENTIFIED?

16 A. MY HAND WOULD ONLY BE IN ONE POSITION. IF THIS IS

17 THE HANDRAIL, TYPICALLY IF I’M WALKING UPSTAIRS WHERE THE

18 HANDRAIL’S ON THE RIGHT, I’D EXPECT THE HAND TO BE IN THIS

19 ORIENTATION.

20 Q. UM-HMM.

21 A. IN THIS CASE THE PRINT IS THE EXACT REVERSE OF THAT

22 ORIENTATION.

23 Q. ALMOST AS THOUGH A PERSON WENT — LOST THEIR

24 BALANCE?

25 MR. DUSEK: OBJECTION, THAT CALLS FOR SPECULATION.

26 THE COURT: SUSTAINED.

27

28 ///
5635
1 BY MR. FELDMAN:

2 Q. IS THE POSITION THAT I’VE PLACED MY HAND ON THE

3 JURY RAILING A CONSISTENT POSITION WITH WHAT YOU FOUND?

4 A. THAT’S YOUR LEFT HAND. IF YOU WERE TO MIRROR IT,

5 IT PROBABLY WOULD WORK, YES.

6 Q. AND THEN YOU CAN’T DRAW ANY INFERENCES FROM THE —

7 YOU CAN’T TELL US HOW THAT PARTICULAR PRINT WAS MADE. YOU CAN

8 ONLY DESCRIBE THE ORIENTATION AS YOU’VE DONE?

9 A. YES.

10 MR. FELDMAN: IF I COULD JUST HAVE ONE SECOND, OR A SHORT

11 MOMENT, PLEASE.

12 (PAUSE)

13

14 BY MR. FELDMAN:

15 Q. DID YOU COMPARE, SIR, ANY OF THE UNKNOWN LATENTS

16 THAT YOU FOUND IN THE MOTOR HOME AGAINST ANY OF THE UNIDENTIFIED

17 LATENTS YOU FOUND IN THE VAN DAM RESIDENCE?

18 A. NO, I DIDN’T.

19 MR. FELDMAN: I HAVE NO FURTHER QUESTIONS AT THIS TIME.

20 THE COURT: ALL RIGHT.

21 ANYTHING FURTHER, MR. DUSEK?

22

23 REDIRECT EXAMINATION +

24 BY MR. DUSEK:

25 Q. YOU WERE ASKED QUESTIONS ABOUT ACCREDITATION. IS

26 YOUR LAB ACCREDITED?

27 A. YES, IT IS.

28 Q. WHAT DOES THAT MEAN?
5636
1 A. IT MEANS THE LABORATORY IS CERTIFIED. IT’S

2 APPROVED, THE MANNERS IN WHICH WE DO THINGS, THE METHODOLOGY IN

3 WHICH WE DO THINGS. THERE’S A BOARD OF INSPECTORS THAT COMES

4 THROUGH AND INVESTIGATES BASICALLY HOW WE DO THINGS, AND WE’VE

5 BEEN CERTIFIED AS DOING THEM THE WAY THAT IT’S EXPECTED TO BE

6 DONE.

7 Q. DOES THAT INCLUDE THE FINGERPRINT SECTION?

8 A. YES.

9 Q. DO YOU REQUIRE OR DO YOU GO THROUGH ANY SORT OF

10 ACCREDITATION OR TESTING?

11 A. ANNUALLY WE ARE GIVING PROFICIENCY TESTS, YES.

12 Q. AND HAVE YOU PASSED?

13 A. YES.

14 Q. YOU WERE ASKED QUESTIONS REGARDING

15 INTERNAL/EXTERNAL ACCREDITATION. DO THOSE PHRASES MEAN

16 SOMETHING TO YOU?

17 A. I BELIEVE MR. FELDMAN WAS ASKING ABOUT EXTERNAL

18 TESTS VERSUS INTERNAL TESTS.

19 Q. IS THERE A DIFFERENCE?

20 A. THE EXTERNAL TEST IS PROVIDED BY AN OUTSIDE AGENCY,

21 AN OUTSIDE SOURCE, AND WE RECEIVE TESTS FROM COLLABORATIVE

22 TESTING SYSTEMS, SO THAT’S AN EXTERNAL TEST. INTERNAL WOULD BE

23 ONE THAT IS MADE UP WITHIN THE DEPARTMENT AND ADMINISTERED.

24 Q. HAVE YOU TAKEN THOSE TESTS?

25 A. YES.

26 Q. HOW DID YOU DO?

27 A. PASSED A HUNDRED PERCENT.

28 Q. WHEN YOU ANALYZE A FINGERPRINT TO SEE IF YOU CAN
5637
1 MAKE A MATCH OR NOT, DO YOU ALTER OR DESTROY THE FINGERPRINT?

2 A. NO.

3 Q. SO IT’S NOT LIKE YOU’RE GONNA EAT UP THE THING THAT

4 YOU’RE LOOKING AT; IS THAT CORRECT?

5 A. THOSE PRINTS ARE ON LIFTS. THEY’RE UNDER THE TAPE

6 AND PHOTOGRAPHS, THEY’RE THERE FOREVER SO THERE’S NO WAY TO

7 ALTER THEM.

8 Q. CAN THEY BE RE-EXAMINED BY SOMEBODY ELSE IF THEY

9 THINK YOU DON’T KNOW WHAT YOU’RE DOING?

10 A. CERTAINLY, YES.

11 Q. AND ARE — IS YOUR WORK TESTED OR CHECKED?

12 A. WHEN I MAKE AN IDENTIFICATION, I HAVE A VERIFIER,

13 ANOTHER EXAMINER, LOOK AT THAT AND START OVER, ANALYSIS,

14 COMPARISON, EVALUATION, SO THEY MAKE THEIR OWN INDEPENDENT

15 EXAMINATION OF THAT EVIDENCE AND COME TO THEIR OWN OPINION.

16 Q. LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS

17 COURT’S EXHIBIT 109, THE ENVELOPE. THAT CONTAINS THE LATENT

18 PRINT CARDS. I THINK COUNSEL MENTIONED AN AREA ON HERE CHAIN OF

19 CUSTODY; IS THAT CORRECT?

20 A. YES.

21 Q. ON THE CHAIN OF CUSTODY, DOES THAT INDICATE WHO’S

22 HAD ACCESS TO THOSE FINGERPRINTS?

23 A. YES.

24 Q. IS IT CUSTOMARY THAT THEY WOULD BE — THE DEFENSE

25 WOULD BE ALLOWED TO LOOK AT THOSE FINGERPRINTS?

26 MR. FELDMAN: OBJECTION, RELEVANCE.

27 THE COURT: OVERRULED.

28 MR. FELDMAN: YOUR HONOR, I WANT A SIDE BAR.
5638
1 THE COURT: I’LL GIVE YOU AN OPPORTUNITY LATER.

2 THE WITNESS: COULD YOU REPEAT THE QUESTION?

3

4 BY MR. DUSEK:

5 Q. WOULD THE DEFENSE BE ALLOWED TO LOOK AT THOSE

6 FINGERPRINTS TO CHECK THEIR WORK?

7 A. YES.

8 Q. IN THE CHAIN OF CUSTODY, WOULD IT INDICATE WHETHER

9 OR NOT THAT HAS HAPPENED?

10 A. YES.

11 Q. DO YOU SEE ANY NAMES IN THERE THAT WOULD INDICATE

12 THE DEFENSE HAS HAD A CHANCE TO LOOK AT THESE FINGERPRINTS?

13 MR. FELDMAN: CONTINUING OBJECTION, YOUR HONOR.

14 THE COURT: DULY NOTED.

15 THE WITNESS: YES.

16

17 BY MR. DUSEK:

18 Q. WHAT ARE THEIR NAMES?

19 A. LEIGH EMMERSON.

20 Q. IS THERE ANOTHER NAME OPPOSITE MR. EMMERSON?

21 A. WHERE THE I. D. IS, MR. EMMERSON, IS WRITTEN

22 FELDMAN.

23 Q. DO YOU KNOW WHO LEIGH EMMERSON IS?

24 A. YES, I DO.

25 Q. WHO IS HE?

26 A. HE IS A LATENT PRINT EXAMINER NOW. HE IS A PRIVATE

27 LATENT PRINT EXAMINER. HE DOES DEFENSE WORK. HE IS A FORMER

28 SAN DIEGO P. D. LATENT PRINT EXAMINER, FORMER POLICE OFFICER.
5639
1 Q. HOW MANY TIMES WAS HE ALLOWED TO LOOK AT THESE

2 FINGERPRINTS?

3 A. THESE IN PARTICULAR OR THE WHOLE CASE?

4 A. JUST BASED UPON THE CHAIN OF CUSTODY?

5 A. TWO DIFFERENT OCCASIONS.

6 Q. HAS HE LOOKED ON — LOOKED AT OTHER PRINTS ON OTHER

7 OCCASIONS?

8 A. YES.

9 Q. ABOUT HOW MANY?

10 A. MAYBE TEN TO A DOZEN TIMES.

11 Q. YOU WERE ASKED QUESTIONS REGARDING POINT COUNTERS

12 AND RIDGEOLOGISTS. DO YOU RECALL THAT?

13 A. YES.

14 Q. WHAT IS A RIDGEOLOGIST?

15 A. A RIDGEOLOGIST LOOKS AT THE WHOLE RIDGE. REMEMBER

16 I SPOKE OF THE THREE LEVELS; THE FLOW OF THE RIDGES, THE ENDING

17 RIDGES AND BIFURCATIONS, WHICH ARE THE THINGS THAT THOSE RIDGES

18 DO, AS WELL AS THE SHAPES AND THE EDGES OF THOSE RIDGES, THE

19 PORE STRUCTURE, CREASES. POINT COUNTERS MAY LIMIT THEMSELVES TO

20 JUST THOSE BIFURCATIONS AND JUST THOSE ENDING RIDGES.

21 Q. SO THERE ARE TWO DIFFERENT WAYS TO LOOK AT — MAKE

22 FINGERPRINT COMPARISONS?

23 A. THE THOUGHT IS THAT EVEN THE POINT COUNTERS ARE

24 ACTUALLY LOOKING AT ALL THE OTHER DETAIL. THEY JUST DON’T

25 RECOGNIZE IT.

26 Q. AND YOU CONSIDER YOURSELF WHAT?

27 A. A RIDGEOLOGIST.

28 Q. DID I ASK YOU TO GO BACK AND COUNT POINTS?
5640
1 A. YES, YOU DID.

2 Q. DID YOU?

3 A. YES.

4 Q. WHAT DID YOU FIND?

5 A. THE TWO THAT IDENTIFIED DANIELLE VAN DAM, THE LEFT

6 MIDDLE FINGER HAS AN EXCESS OF EIGHT POINTS, AND THOSE ARE JUST

7 ANY RIDGES, BIFURCATIONS. IT DOESN’T TAKE INTO ACCOUNT CREASES,

8 DOESN’T TAKE INTO ACCOUNT RIDGE SHAPES.

9 THE LEFT RING FINGER IN EXCESS OF 18 BIFURCATIONS

10 IN ANY RIDGES, NOT TAKING INTO ACCOUNT CREASES, NOT TAKING INTO

11 ACCOUNT THE RIDGE SHAPES.

12 Q. EVEN WITH POINT COUNTERS, WOULD THAT BE SUFFICIENT

13 FOR AN IDENTIFICATION?

14 A. MOST DEPARTMENTS, THE 18 DEFINITELY, YES. THE

15 EIGHT MAYBE SOME DEPARTMENTS, NO.

16 Q. ALL RIGHT.

17 ARE YOU FAMILIAR WITH THE TERM “ELIMINATION

18 PRINTS”?

19 A. YES.

20 Q. WHAT ARE THEY?

21 A. ELIMINATION PRINTS TYPICALLY OBTAINED, SAY YOU’RE

22 BURGLARIZED. THE OFFICERS WILL COME OUT, THEY’LL PRINT THE

23 AREAS THAT THE BURGLARY MAYBE ENTERED IN OR EXITED IN AS WELL AS

24 ANY PATH THAT THEY BELIEVE THAT BURGLAR TRAVELED.

25 IF YOU TELL THEM THAT THE BURGLAR CAME IN AND WENT

26 THROUGH MY JEWELRY BOX, WELL, HE OR SHE IS GOING TO PRINT THAT

27 JEWELRY BOX. BEFORE THEY LEAVE THAT SCENE, THOUGH, THEY’RE

28 GOING TO ASK YOU FOR ELIMINATION PRINTS. SO THAT WILL BE PRINTS
5641
1 FROM PEOPLE THAT HAVE LEGITIMATE ACCESS TO THAT HOUSE FOR THE

2 REASON THAT THEY CAN THEN COMPARE — OR I CAN COMPARE THE LATENT

3 PRINTS THAT ARE OBTAINED BY THE OFFICER TO YOUR ELIMINATION

4 PRINTS. SO IF I VIEW YOU AS THE SOURCE OF THAT PRINT, I CAN

5 STOP LOOKING FOR THE SUSPECT.

6 Q. SO BASICALLY WHEN YOU GET ELIMINATION PRINTS YOU

7 NEED TO KNOW ALL OF THE PEOPLE WHO’VE EVER BEEN INSIDE A HOME;

8 IS THAT CORRECT?

9 A. MAYBE NOT 30 YEARS WORTH BUT WITHIN REASON, YES.

10 Q. AND SO, THAT WAY YOU’D BE ABLE TO COMPARE SOME

11 PRINTS THAT PERHAPS YOU WERE NOT ABLE TO IDENTIFY TO A SUSPECT.

12 THEY COULD BE IDENTIFIED TO SOMEONE WHO HAD LEGITIMATE ACCESS TO

13 THE HOME?

14 A. YES.

15 Q. YOU WERE ASKED QUESTIONS REGARDING SEVERAL SETS OF

16 PRINTS FROM THE VAN DAM HOME. Q1, DO YOU RECALL THAT AREA?

17 A. YES.

18 Q. AND SOME OF THESE WERE INTERIOR BEDROOM DOORS IN

19 DANIELLE VAN DAM’S BEDROOM?

20 A. YES.

21 Q. WERE YOU ABLE TO IDENTIFY HER PRINTS FROM ANY OF

22 THOSE LOCATIONS?

23 MR. FELDMAN: YOUR HONOR, I’M SORRY. I MISSED THE

24 QUESTION. I APOLOGIZE.

25 THE COURT: ALL RIGHT.

26 (RECORD READ)

27 MR. FELDMAN: THANK YOU, YOUR HONOR.

28 THE WITNESS: I IDENTIFIED — FOR EXHIBIT Q1, I
5642
1 IDENTIFIED DANIELLE TWO TIMES. ONCE ON A CARD DOCUMENTED

2 INTERIOR BEDROOM DOOR BELOW KNOB VICTIM’S BEDROOM, AND A SECOND

3 TIME ON A CARD DOCUMENTED THE RIGHT FRONT CORNER OF THE DESK TOP

4 NEXT TO THE BED VICTIM’S ROOM.

5 Q. DID YOU ALSO IDENTIFY HER FATHER IN HER BEDROOM?

6 A. NOT ON EXHIBIT ONE BUT PROBABLY ON OTHER EXHIBITS.

7 Q. HOW ABOUT EXHIBIT Q1 DASH 13? I’M SORRY, THAT

8 LOOKS LIKE FROM A DIFFERENT LOCATION?

9 A. YEAH, THAT’S FROM THE SEGMENT OF HANDRAIL, FIRST

10 SEGMENT OF HANDRAIL.

11 Q. ALL RIGHT.

12 THE OTHER AREA I BELIEVE HE ASKED YOU ABOUT WAS Q3.

13 DO YOU RECALL THAT?

14 A. YES.

15 Q. WERE YOU ABLE TO MAKE IDENTIFICATIONS FROM SOME OF

16 THE LATENT PRINTS IN Q-3?

17 A. YES.

18 Q. TO WHOM?

19 A. THE FIRST PAGE OF NOTES I HAVE SIX IDENTIFICATIONS

20 TO PETER DAMON VAN DAM.

21 Q. FROM WHAT TYPE OF OBJECTS?

22 A. SIDE DOOR INSIDE, SIDE DOOR INSIDE DOOR JAM, DOOR

23 FRAME ON THE SIDE DOOR.

24 Q. AND THE SIDE DOOR YOU HAVE INTERPRETED TO BE THE

25 SIDE DOOR TO THE GARAGE?

26 A. YES.

27 Q. BUT YOU WERE NOT THERE WHEN THAT WAS TAKEN?

28 A. NO, I WASN’T.
5643
1 Q. THE UNIDENTIFIABLE PRINT THAT COUNSEL CIRCLED AND

2 PUT THE “J. G.” THERE, WAS THAT PRINT IDENTIFIED AS FROM THE

3 OUTSIDE OF THE DOOR OR ON THE INSIDE?

4 A. THE INSIDE.

5 Q. WHERE ON THE INSIDE?

6 A. I WOULDN’T KNOW THAT UNLESS I PULLED THE PRINT OUT,

7 WHICH I COULD DO.

8 Q. PLEASE.

9 THE COURT: SERGEANT, GOT YOUR KNIFE HANDY?

10 THE WITNESS: DO YOU HAVE SOMETHING TO OPEN IT WITH?

11 THE COURT: OH, A LETTER OPENER. WOULD THAT WORK?

12 THE WITNESS: THAT WOULD BE FINE, YES.

13 THE BAILIFF: HERE YOU GO, SIR.

14 THE WITNESS: THANK YOU.

15 3-2, THERE’S A DIAGRAM ON THE BACK. THERE’S A

16 CIRCLE THAT REPRESENTS THE DOOR KNOB AND AN “X” THAT WILL

17 REPRESENT THE SPOT WHERE THE PRINT WAS OBTAINED.

18 SO I CAN’T TELL ON THE SCALE, MAYBE EIGHT INCHES,

19 12 INCHES ABOVE THE KNOB, DIRECTLY ABOVE THE KNOB ON THE INSIDE

20 OF THAT DOOR.

21

22 BY MR. DUSEK:

23 Q. THANK YOU, SIR.

24 MR. FELDMAN: YOUR HONOR, I’M SORRY BUT THE WITNESS JUST

25 PUT THAT PARTICULAR CARD AWAY. IT WAS IDENTIFIED ON THE RECORD.

26 COULD WE PLEASE HAVE IT MARKED?

27 THE COURT: ALL RIGHT. DO YOU WANT TO GET THAT OUT THEN?

28 ALL RIGHT. IT WILL BE MARKED 118 FOR
5644
1 IDENTIFICATION.

2 (MARKED FOR ID: = TRIAL EX. 118 – LATENT PRINT CARD)

3

4 BY MR. DUSEK:

5 Q. WHEN SOMEONE WEARS GLOVES AND TOUCHES A SURFACE,

6 ARE YOU GONNA SEE ANY MARK THAT REMAINS TO BE LIFTED?

7 A. I’VE LOOKED AT GLOVE MARKS, SO YES, IF YOU’RE

8 LOOKING FOR IT, YES. BUT AGAIN, THOSE ARE CHANCE IMPRESSIONS AS

9 WELL.

10 Q. AND ONCE A FINGERPRINT IS LEFT ON A SURFACE CAN IT

11 BE REMOVED?

12 A. YES.

13 Q. HOW?

14 A. WE LIFT THEM OFF. IT COULD ALSO BE CLEANED OFF, A

15 GOOD — WELL, IT DOESN’T HAVE TO BE A GOOD THOROUGH CLEANING,

16 JUST A DAMP RAG WILL WIPE IT RIGHT OFF. EVEN A CASUAL BRUSH

17 AGAINST THE PRINT COULD WIPE IT RIGHT OFF.

18 THE COURT: ALL RIGHT.

19 ANYTHING FURTHER, MR. FELDMAN?

20

21 RECROSS-EXAMINATION +

22 BY MR. FELDMAN:

23 Q. JUST ON THIS ISSUE, HAVE YOU JUST TOLD MR. DUSEK

24 YOU NEED TO NOTE EVERY ONE WHOSE — THIS IS — I’M SORRY, LET ME

25 WITHDRAW THAT. ON THE ISSUE OF — I THINK HE WAS ASKING YOU

26 ABOUT EXCLUSION PRINTS. IS THERE SOMETHING CALLED EXCLUSION

27 PRINTS OR PRINTS TAKEN FROM —

28 A. ELIMINATION PRINTS.
5645
1 Q. ELIMINATION PRINTS. AND ELIMINATION PRINT IS WHAT,

2 SIR?

3 A. THOSE ARE PRINTS OF PEOPLE WHO ARE KNOWN TO LIVE IN

4 THE HOUSE OR KNOWN TO HAVE LEGITIMATE ACCESS.

5 Q. AND IN ORDER FOR YOU TO DO A COMPETENT ELIMINATION

6 YOU NEED TO KNOW EVERYONE WHO WAS IN THE HOME WITHIN A SPECIFIC

7 PERIOD OF TIME, RIGHT?

8 A. YES.

9 Q. YOU WOULD RELY UPON LAW ENFORCEMENT TO OBTAIN THAT

10 ACCURATE INFORMATION FROM INDIVIDUALS WHO WOULD HAVE THAT

11 INFORMATION, CORRECT?

12 A. YES.

13 Q. AND IF THEY DON’T GIVE YOU THE INFORMATION, OR IF

14 INDIVIDUALS DON’T PROVIDE THE INFORMATION YOU’RE NOT IN A

15 POSITION TO OBTAIN ELIMINATION PRINTS, RIGHT?

16 A. MAKES IT MORE DIFFICULT, YES.

17 MR. FELDMAN: THANK YOU VERY MUCH. NO FURTHER QUESTIONS.

18 THE COURT: ANYTHING FURTHER?

19 MR. DUSEK: NO. THANK YOU.

20 THE COURT: ALL RIGHT. IS THIS WITNESS SUBJECT TO RECALL

21 OR EXCUSED?

22 MR. FELDMAN: SUBJECT —

23 THE COURT: SUBJECT TO RECALL? ALL RIGHT.

24 THANK YOU, SIR. YOUR TIME WITH US IS DONE. WOULD

25 YOU MAKE SURE 109 GETS BACK AND MAKE SURE YOU DON’T TAKE IT.

26 ALSO THAT CHAIN OF CUSTODY SHEET GOES IN 109, OKAY.

27 MR. DUSEK, IF YOU’D KINDLY ASSIST MR. GRAHAM, MAKE

28 SURE OUR EXHIBITS REMAIN.
5646
1 ALL RIGHT, SIR. PLEASE REMEMBER YOU’RE UNDER AN

2 ADMONITION NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE

3 MATTER’S CONCLUDED. HOWEVER, YOU CAN CONTINUE, OBVIOUSLY, TO DO

4 YOUR PROFESSIONAL WORK.

5 THE WITNESS: THANK YOU, YOUR HONOR.

6 THE COURT: THANK YOU FOR COMING IN.

7 MR. DUSEK: WE NEED A COUPLE OF MINUTES OF SET UP TIME.

8 THE COURT: ALL RIGHT. LET’S TRY AND DO IT WITH THE JURY

9 PRESENT SO —

10 MR. FELDMAN: COULD WE DO THE SIDEBAR WHILE THIS IS

11 HAPPENING?

12 THE COURT: CERTAINLY, BE HAPPY TO.

13 (THE FOLLOWING PROCEEDINGS WERE HELD
AT THE BENCH BETWEEN COURT AND COUNSEL:)
14

15 MR. FELDMAN: YOUR HONOR, PROCEED?

16 THE COURT: SURE.

17 MR. FELDMAN: I HAD REQUESTED, YOUR HONOR, A SIDEBAR

18 BECAUSE I WAS CONCERNED THAT THE LINE OF QUESTIONING BY COUNSEL

19 IMPLICATED THE FACT THAT THE DEFENSE HAD RETAINED AN EXPERT AND

20 HAD THE EXPERT GO IN AND MAKE INQUIRY.

21 WE HAD DISCUSSED THIS PRETRIAL, AND I HAD

22 SPECIFICALLY RAISED A CONCERN THAT IT WOULD BE IMPROPER FOR

23 PROSECUTION — I HAD ARTICULATED THIS, YOUR HONOR, IN THE

24 CONTEXT OF EVALUATION OF HAIRS, ET CETERA, FOR SOME OF THE D. N.

25 A. MATTERS. AND THE CONCERN IS THAT BY ASKING THE QUESTIONS

26 THAT HAVE BEEN ASKED IT NOW RAISES THE INFERENCE THAT THE

27 DEFENSE IS PROVIDED ESSENTIALLY CONFIRMATION OF THIS WITNESS’

28 CONCLUSIONS, WHICH I DON’T THINK IS A FAIR INFERENCE.
5647
1 THE COURT: YOUR RESPONSE?

2 MR. DUSEK: COUNSEL ATTACKED THE CREDIBILITY, THE

3 COMPETENCE OF HIM AND HIS SCIENCE. THEIR CHAIN OF CUSTODY

4 ATTACK THAT HE MADE UPON THIS WITNESS AND OTHERS, HIS NAME IS ON

5 THE CHAIN OF CUSTODY, AND ALSO FAIR COMMENT UPON WHETHER OR NOT

6 FINGERPRINT, WHERE IT CAN BE CONFIRMED BY OTHERS AND WAS DONE SO

7 IN THIS CASE.

8 THE COURT: FOR ALL OF THOSE REASONS IT IS VERY APPARENT

9 THAT IT IS PROPERLY BEFORE THE COURT, AND THE CHAIN OF CUSTODY

10 THING IS PROBABLY THE PRIMARY THING THAT WAS RAISED INITIALLY

11 WITH THE EVIDENCE TECHNICIAN OR THE FORENSIC SPECIALIST. AND

12 THEN ALL OF THESE OTHER AREAS OF CHALLENGE OBVIOUSLY CAN BE

13 ARGUED. SO IT’S RELEVANT. YOU’VE MADE YOUR RECORD.

14 MR. FELDMAN: THANK YOU.

15 THE COURT: I ABIDE BY MY RULING.

16 MR. FELDMAN: ONE FURTHER MATTER.

17 THE COURT: SURE.

18 MR. FELDMAN: I HAD RAISED AT THE BREAK, AND I DON’T KNOW

19 WHETHER YOUR HONOR FORGOT, —

20 THE COURT: NO, I DIDN’T. YOUR CLIENT WAS NOT MOVED

21 DURING THE AFTERNOON BREAK SO THERE WAS NO REASON TO TALK TO THE

22 JURY ABOUT IT.

23 MR. FELDMAN: ALL RIGHT.

24 MR. BOYCE: I NOTICE THAT JUROR NO. 7 IS WEARING

25 SUNGLASSES. IF SHE HAS LIGHT SENSITIVE EYES, THEN THAT MIGHT

26 EXPLAIN THAT BUT —

27 THE COURT: WELL, WE’LL FIND OUT IF THAT BECOMES AN

28 ISSUE.
5648
1 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
2

3 THE COURT: NOW WE’RE GETTING SOMEWHERE.

4 MR. DUSEK.

5 MR. DUSEK: CALL PAT WERTHEIM.

6

7 -PAT WERTHEIM, +

8 PLAINTIFF’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:

9

10 THE COURT: PLEASE HAVE A SEAT, SIR.

11 THE WITNESS: THANK YOU.

12 THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND

13 SPELL IT FOR THE RECORD.

14 THE WITNESS: MY NAME IS PAT WERTHEIM, W-E-R-T-H-E-I-M.

15

16 DIRECT EXAMINATION +

17 BY MR. DUSEK:

18 Q. HOW ARE YOU EMPLOYED, SIR?

19 A. I WORK FOR THE ARIZONA DEPARTMENT OF PUBLIC SAFETY

20 WHERE I’M ASSIGNED TO THE CRIME LABORATORY IN TUCSON.

21 Q. WHAT TYPE OF WORK DO YOU DO FOR ARIZONA?

22 A. I DO FINGERPRINT EXAMINATIONS.

23 Q. HOW LONG HAVE YOU BEEN DOING THAT?

24 A. I’VE BEEN DOING FINGERPRINT EXAMINATIONS SINCE THE

25 LATE 60S. I TOOK MY FORMAL TRAINING IN THAT STARTING IN 19 —

26 OR SINCE LATE ’70S, EXCUSE ME. TOOK MY FORMAL TRAINING IN 1976

27 AND HAVE BEEN DOING IT ON AND OFF SINCE THEN.

28 Q. WOULD YOU GIVE US YOUR EDUCATIONAL BACKGROUND THAT
5649
1 LEADS YOU TO THAT POSITION?

2 A. I’VE GOT A BACHELOR OF SCIENCE DEGREE FROM TEXAS A.

3 AND M. UNIVERSITY. AS FAR AS TRAINING IN FINGERPRINTS

4 SPECIFICALLY, I’VE COMPLETED ALL OF THE TRAINING IN FINGERPRINT

5 IDENTIFICATION COMPARISON OFFERED BY THE TEXAS DEPARTMENT OF

6 PUBLIC SAFETY ACADEMY IN AUSTIN, TEXAS.

7 I’VE ATTENDED THE FIELD COURSES TAUGHT IN

8 FINGERPRINT COMPARISON BY THE F. B. I. AND I’VE ATTENDED ALL OF

9 THE ADVANCED FINGERPRINT COMPARISON IDENTIFICATION COURSES

10 TAUGHT BY THE F. B. I. AT THE F. B. I. ACADEMY IN QUANTICO,

11 VIRGINIA.

12 Q. OVER IN ARIZONA DO YOUR WORK FOR A PARTICULAR

13 AGENCY, PROSECUTING OR DEFENSE OVER THERE?

14 A. WELL, THE CRIME LABORATORY IS PART OF THE

15 DEPARTMENT OF PUBLIC SAFETY WHICH WOULD BE, I GUESS, THE

16 EQUIVALENT OF A STATE POLICE AGENCY, SO IT IS A PROSECUTION

17 ORIENTED ORGANIZATION.

18 Q. DO YOU DO ANY DEFENSE WORK?

19 A. I HAVE IN THE PAST, YES, SIR.

20 Q. HOW OFTEN?

21 A. I’VE DONE A NUMBER OF DEFENSE CASES. THERE WAS A

22 FIVE-YEAR PERIOD FROM 1997 THROUGH LAST AUGUST IN WHICH I HAD

23 TAKEN A BREAK FROM MY JOB AT D. P. S. AND WAS DOING CONSULTING

24 WORK AND TRAINING FORMALLY, DID A NUMBER OF DEFENSE CASES DURING

25 THAT TIME PERIOD.

26 Q. DO YOU BELONG TO ANY FINGERPRINT ASSOCIATIONS?

27 A. YES, SIR, I DO.

28 Q. SUCH AS?
5650
1 A. I BELONG TO THE INTERNATIONAL ASSOCIATION FOR

2 IDENTIFICATION, WHERE I’M A DISTINGUISHED MEMBER. I BELONG TO

3 THE CANADIAN IDENTIFICATION SOCIETY, THE FINGERPRINT SOCIETY

4 GREAT BRITAIN, THE CALIFORNIA DIVISION OF THE INTERNATIONAL

5 ASSOCIATION, TEXAS DIVISION OF THE INTERNATIONAL ASSOCIATION.

6 Q. DO YOU DO ANY TEACHING IN THE FIELD?

7 A. YES, I DO, SIR.

8 Q. DESCRIBE THAT FOR US?

9 A. I TEACH AN ADVANCED FINGERPRINT COMPARISON COURSE.

10 I’VE BEEN TEACHING IT SINCE THE LATE ’80S. IT’S A WEEK-LONG

11 COURSE. I’VE TAUGHT IT OVER 80 TIMES NOW, INCLUDING IN-SERVICE

12 TRAINING FOR A NUMBER OF LARGE AGENCIES. I’VE TAUGHT IT AS

13 IN-SERVICE TRAINING FOR N. Y. P. D., L. A. P. D., L. A. S. O.,

14 MICHIGAN STATE POLICE, ILLINOIS STATE POLICE, A NUMBER OF

15 AGENCIES LIKE THAT.

16 Q. DO YOU DO ANY WRITING IN THE FIELD?

17 A. YES, SIR.

18 Q. DESCRIBE THAT PLEASE?

19 A. I’VE PUBLISHED A NUMBER OF ARTICLES IN THE JOURNAL

20 OF FORENSIC IDENTIFICATION, AN INTERNATIONAL JOURNAL PUBLISHED

21 BY THE INTERNATIONAL ASSOCIATION.

22 I’VE PUBLISHED ARTICLES IN FINGERPRINT WORLD, WHICH

23 IS THE OFFICIAL ORGANIZATION OF THE FINGERPRINT SOCIETY IN THE

24 U. K. I’VE HAD A NUMBER OF THOSE ARTICLES REPRINTED. IN

25 ADDITION, I’VE DONE QUITE A SERIES OF OTHER ARTICLES FOR SMALLER

26 PUBLICATIONS, STATE PUBLICATIONS AND TRADE PUBLICATIONS.

27 Q. DO YOU HOLD ANY SORT OF CERTIFICATIONS IN THE

28 FIELD?
5651
1 A. YES, SIR.

2 Q. SUCH AS?

3 A. I’VE BEEN CERTIFIED BY THE INTERNATIONAL

4 ASSOCIATION FOR IDENTIFICATION UNDER THEIR LATENT PRINT EXAMINER

5 CERTIFICATION PROGRAM, AND FOR THE LAST DECADE OR SO I

6 VOLUNTARILY RETEST EVERY THREE YEARS TO RENEW MY CERTIFICATION

7 INSTEAD OF AUTOMATICALLY RENEWING.

8 Q. HAVE YOU QUALIFIED AS A FINGERPRINT EXPERT ON PRIOR

9 OCCASIONS?

10 A. YES, SIR.

11 Q. ARE YOU ABLE TO ESTIMATE HOW MANY TIMES?

12 A. I HAVE NEVER KEPT TRACK. I’VE TESTIFIED IN CITY

13 COURT, JUSTICE COURT, DISTRICT AND SUPERIOR COURTS, STATE COURT,

14 FEDERAL COURT. I’VE TESTIFIED IN SCOTLAND AND ENGLAND AS WELL.

15 Q. CAN YOU TELL US HOW LONG FINGERPRINTS HAVE BEEN

16 USED FOR IDENTIFICATION PURPOSES?

17 A. THERE’S SOME EVIDENCE THAT THE CHINESE USED

18 FINGERPRINTS AS A MEANS OF IDENTIFICATION THOUSANDS OF YEARS

19 AGO. BUT FOR PURPOSES OF WESTERN CIVILIZATION, THE IDEA OF

20 USING FINGERPRINTS DATES BACK TO ABOUT 1858. THE INVOLVEMENT OF

21 POLICE AND IDENTIFICATION OF LATENT FINGERPRINTS FOR CRIMINALS

22 DATES BACK TO ABOUT 1880. THE FINGERPRINT SECTION OF SCOTLAND

23 YARD WAS ORGANIZED IN 1901 OR 1902. THE F. B. I.’S FINGERPRINT

24 SECTION WAS ORGANIZED IN 1925, ALTHOUGH THERE WERE ALREADY A

25 NUMBER OF STATES DOING FINGERPRINT WORK BY THEN.

26 Q. IS THERE SOME PREMISE THAT UNDERLIES THE ABILITY TO

27 IDENTIFY THE FINGERPRINTS?

28 A. THERE ARE TWO BASIC PREMISES TO THE USE OF
5652
1 FINGERPRINTS AS A MEANS OF IDENTIFICATION.

2 FIRST, FINGERPRINTS ARE UNIQUE. THEY’RE FORMED

3 DURING THE DEVELOPMENT OF HUMAN EMBRYO BASED ON GENETIC FACTORS

4 AND RANDOM OR ACCIDENTAL FACTORS, FACTORS OF STRESSES AND

5 PRESSURES THAT ARE ON THE BABY DURING THAT STAGE OF GROWTH.

6 A WIDE PLATHORA OF FACTORS AFFECT THE FORMATION OF

7 THE LITTLE RIDGES ON YOUR HANDS AND, FOR THAT MATTER, THE SOLES

8 OF YOUR FEET. SO MANY FACTORS AND SOME RANDOM AND ACCIDENTAL,

9 AS I SAID, THAT THE FINE DETAILS THAT WE LOOK AT FOR COMPARISON

10 IDENTIFICATION ARE NEVER DUPLICATED.

11 THE SECOND FACTOR IS THAT OF PERMANENCE. THE

12 STRUCTURE OF THE SKIN IS SUCH THAT THE CELLS BEING GENERATED

13 BETWEEN THE DERMIS AND THE EPIDERMIS AT THE BASAL LAYER OF THE

14 EPIDERMIS COME TO THE SURFACE AND RETAIN THE ORIGINAL SHAPE OF

15 THE SKIN AT THE TIME OF BIRTH. AND THAT SHAPE, EVEN THOUGH YOUR

16 BODY GROWS, THE FINE DETAILS STAY THE SAME THROUGHOUT YOUR LIFE

17 UNLESS THAT BASAL LAYER OF THE EPIDERMIS IS DAMAGED. AND THEN

18 AFTER IT HEELS, IT FORMS A NEW PATTERN OR A NEW TEMPLATE THAT

19 PROVIDES THE CELLS TO THE SURFACE IN THAT NEW FORM AND YOU’VE

20 GOT A SCAR.

21 SO THE UNIQUENESS WHICH RESULTS FROM THE FORMATION

22 OF THOSE RIDGES AS YOU DEVELOP IN THE WOMB AND THE PERMANENCE

23 WHICH RESULTS FROM THE STRUCTURE OF THE SKIN ITSELF MAKE

24 FINGERPRINTS AN IDEAL MEANS OF PERSONAL IDENTIFICATION.

25 Q. ARE YOU FAMILIAR WITH THE TERM “KNOWN PRINT”?

26 A. YES, SIR.

27 Q. CAN YOU TELL US WHAT THAT IS?

28 A. A KNOWN PRINT IS A PRINT TAKEN FROM A KNOWN
5653
1 INDIVIDUAL. IN OTHER WORDS, IT’S A FINGERPRINT FOR WHICH YOU

2 KNOW THE SOURCE.

3 Q. HOW ABOUT A LATENT PRINT, WHAT IS THAT?

4 A. A LATENT PRINT IS GENERALLY — AN UNKNOWN PRINT IS

5 INVISIBLE. A FINGERTIP IS LIKE A LITTLE RUBBER ADDRESS STAMP

6 EXCEPT, INSTEAD OF A MESSAGE IN A RESIDUE OF INK THAT YOU CAN

7 SEE, THE FINGERTIP LEAVES A MESSAGE IN A RESIDUE OF SWEAT OR

8 BODY OILS OR FOOD RESIDUE; THE GREASE FROM THE FRENCH FRIES YOU

9 HAD FOR LUNCH, WHATEVER HAPPENS TO BE ON YOUR FINGERS AT THE

10 TIME YOU TOUCH A SURFACE CAN LEAVE AN IMPRESSION OF THOSE RIDGES

11 ON YOUR FINGER. THAT IMPRESSION IS USUALLY INVISIBLE, AND

12 THAT’S WHY WE REFER TO IT AS A LATENT PRINT. AND THEN VARIOUS

13 MECHANICAL, CHEMICAL, LIGHTING TECHNIQUES CAN BE USED TO MAKE

14 THE PRINT VISIBLE.

15 Q. WHEN YOU’RE MAKING THE COMPARISON BETWEEN A KNOWN

16 PRINT AND A LATENT PRINT YOU NEED CERTAIN EQUIPMENT?

17 A. GENERALLY MAGNIFIERS ARE USED. SOMETIMES

18 PHOTOGRAPHIC ENLARGEMENTS. TODAY IN THE AGE OF DIGITAL IMAGING,

19 MORE AND MORE PRINTS ARE BEING COMPARED ON COMPUTER SCREENS.

20 USUALLY IT’S SIMPLY THE LATENT PRINT, EITHER A LIFT OR A

21 PHOTOGRAPH COMPARED DIRECTLY TO THE INKED PRINT WITH THE USE OF

22 THE MAGNIFYING GLASS, IF NECESSARY.

23 Q. AND WHEN YOU MAKE THE COMPARISON, IS IT A

24 MULTI-STEP PROCESS?

25 A. YES, IT IS.

26 Q. WHAT’S THE FIRST STEP?

27 A. THE FIRST STEP IS ANALYSIS. WHEN WE’RE — WHEN

28 WE’RE GETTING READY TO DO A COMPARISON WE HAVE TO ANALYZE THE
5654
1 LATENT PRINT THOROUGHLY. WE’LL ANALYZE IT FOR FACTORS SUCH AS

2 DISTORTION, PRESSURE DISTORTION OR DISTORTION DUE TO THE

3 SUBSTRATE, THAT IS THE SURFACE THAT’S LEFT ON, DISTORTION DUE TO

4 THE MATERIAL THAT LEFT THE FINGERPRINT.

5 ALTHOUGH WE CAN’T DO AN EXACT CHEMICAL ANALYSIS OF

6 THE RESIDUE, THROUGH EXPERIENCE YOU LEARN TO TELL A GREASY PRINT

7 FROM A WET OR WATERY PRINT. OBVIOUSLY, A BLOODY PRINT WOULD

8 LOOK DIFFERENT. SO THAT’S PART OF IT.

9 ANOTHER PART OF THE ANALYSIS PHASE IS TO FIND SOME

10 FEATURE IN THE LATENT PRINT, THE UNKNOWN PRINT, THAT’S EASY TO

11 MEMORIZE, EASY TO FORM A MENTAL IMAGE OF SO THAT YOU WOULD

12 RECOGNIZE THAT FEATURE AGAIN WHEN YOU SEE IT. ONCE YOU’VE GONE

13 THROUGH AN ANALYSIS AND YOU’VE GOT THAT TARGET MEMORIZED, THEN

14 YOU GO TO THE SECOND PHASE, WHICH WOULD BE THE COMPARISON PHASE.

15 AND DURING THAT PHASE YOU SEARCH THE KNOWN PRINTS FOR THE

16 FEATURE THAT YOU’VE MEMORIZED, TRYING TO RECOGNIZE THAT

17 PREDOMINANT FEATURE IN THE LATENT PRINT THAT YOU’VE LOOKED FOR.

18 ONCE YOU SPOT THAT, THEN YOU PUT THE TWO PRINTS DOWN SIDE BY

19 SIDE AND GO INTO THE THIRD PHASE, WHICH IS THE EVALUATION. AND

20 DURING THAT PHASE YOU GO BACK AND FORTH BETWEEN THE TWO LOOKING

21 FOR ADDITIONAL FEATURES, ADDITIONAL RIDGE FORMATIONS, AND

22 EVALUATING THEM TO MAKE SURE THAT THEY’RE WITHIN TOLERANCE.

23 OBVIOUSLY, THERE ARE DISTORTION FACTORS. NO TWO PRINTS WILL

24 EVER BE EXACT OVERLAYS OF EACH OTHER.

25 SO, INSTEAD OF DOING AN OVERLAY FOR CORRESPONDENCE

26 OF FEATURES, YOU HAVE TO LOOK AT THE TOTAL SEQUENCE OF RIDGE

27 FORMATIONS AND OTHER FEATURES THAT ARE PRESENT AND FIND THAT

28 THEY ARE ALL IN THE EXACT RELATIONSHIP TO EACH OTHER IN ONE
5655
1 PRINT AS IN THE OTHER PRINT, TAKING IN CONSIDERATION WHAT

2 DISTORTION MIGHT BE THERE. AND ONCE YOU REACH A SUFFICIENT

3 QUANTITY AND QUALITY OF DETAIL TO CONVINCE YOU BEYOND ANY DOUBT

4 WHATSOEVER THAT BOTH PRINTS HAD TO HAVE ORIGINATED FROM THE SAME

5 AREA OF SKIN TO THE EXCLUSION OF ANY OTHER SKIN ON ANY OTHER

6 PERSON, AT THAT POINT THEN YOU SAY THAT YOU’VE MADE AN

7 IDENTIFICATION.

8 Q. AND IF YOU CAN’T DO THAT, FIND THAT SIMILARITY THAT

9 YOU JUST DESCRIBED, WHAT DO YOU CALL IT?

10 A. INCONCLUSIVE.

11 NOW SOMETIMES YOU CAN ELIMINATE IT. YOU FIND

12 FEATURES IN ONE PRINT THAT DON’T EXIST IN THE OTHER AND THEN YOU

13 CAN SAY CONCLUSIVELY THAT THEY COULD NOT HAVE COME FROM THE SAME

14 SOURCE. BUT IF YOU — IF YOU FIND A SUFFICIENT NUMBER TO

15 CONVINCE YOU, BASED ON YOUR TRAINING AND EXPERIENCE, THAT THEY

16 HAD TO HAVE COME FROM THE SAME SOURCE, THEN IT’S AN

17 IDENTIFICATION. IF YOU FIND SOME FEATURES, BUT NOT ENOUGH TO GO

18 TO THAT LEVEL, THEN YOU JUST DON’T MAKE AN IDENTIFICATION. IT’S

19 INCONCLUSIVE.

20 Q. MR. WERTHEIM, DID WE ASK YOU TO CONFIRM OR COMPARE

21 SOME KNOWN PRINTS WITH SOME LATENT PRINTS IN THIS CASE HERE IN

22 SAN DIEGO?

23 A. YES, YOU DID.

24 Q. DID WE PROVIDE YOU WITH A KNOWN PRINT?

25 A. YES, SIR.

26 Q. LET ME SHOW YOU WHAT’S BEEN PREVIOUSLY MARKED AS

27 COURT’S EXHIBIT 112, THIS BLACK AND WHITE PHOTOGRAPH.

28 DO YOU RECOGNIZE THAT?
5656
1 A. YES, SIR. YES, I DO.

2 Q. HOW? HOW?

3 A. BECAUSE I’VE BEEN LOOKING AT FINGERPRINTS FOR 20

4 YEARS. I SEE THE RIDGE FORMATIONS IN THIS PRINT THAT I’M

5 FAMILIAR WITH. I RECOGNIZE THE LABEL ON THE TOP.

6 Q. AND DID WE ALSO PROVIDE YOU WITH LATENT PRINTS TO

7 SEE IF YOU COULD COMPARE THEM WITH THE KNOWN PRINT I JUST GAVE

8 YOU?

9 A. YES, SIR.

10 Q. LET ME SHOW YOU WHAT’S BEEN MARKED AS Q9-3 AND Q9-6

11 THAT ARE CONTAINED WITHIN AN ENVELOPE, COURT’S EXHIBIT 109. DO

12 YOU RECOGNIZE EITHER OF THOSE TWO LATENT PRINTS?

13 A. YES, SIR.

14 Q. WHICH ONE OR BOTH?

15 A. 9-6 I RECOGNIZE, SIR.

16 Q. DID YOU COMPARE THE KNOWN PRINT WITH THE LATENT

17 PRINT?

18 A. YES, SIR, I DID.

19 Q. AND DID YOU PREPARE A VISUAL DEMONSTRATION TO TAKE

20 US THROUGH THE COMPARISON THAT YOU MADE?

21 A. YES, SIR.

22 Q. WHAT DID YOU PREPARE FOR US?

23 A. I’VE GOT AN IMAGE OF THE LATENT PRINT, WHICH IS

24 NUMBER “A” IN Q9-6, FOR DEMONSTRATIVE PURPOSES THAT ONE WAS

25 USED, WITH THE KNOWN PRINT IN COURT EXHIBIT 112.

26 Q. AND WE CURRENTLY HAVE AN IMAGE ON THE BOARD, LOOKS

27 LIKE IT’S GOING THROUGH A POWER POINT PRESENTATION.

28 DID YOU PREPARE THAT FOR US?
5657
1 A. IT WAS DONE AT MY DIRECTION, SIR.

2 Q. ON THE BOARD THERE APPEARS TO BE A FINGERPRINT ON

3 THE LEFT-HAND SIDE. WHAT IS THAT?

4 A. THE PRINT ON THE LEFT-HAND SIDE IS THE LATENT

5 PRINT. IT’S AN ELECTRONIC IMAGE PREPARED FROM A PHOTOGRAPH OF

6 NUMBER “A” ON Q9-6.

7 Q. AND THE FINGERPRINT ON THE RIGHT-HAND SIDE OF THE

8 BOARD IS WHAT?

9 A. THE FINGERPRINT ON THE RIGHT-HAND SIDE IS THE

10 CORRESPONDING AREA OF THE PRINT IN STATE’S EXHIBIT 112.

11 Q. SO WHAT WE HAVE ON THE BOARD IN THE POWER POINT

12 PRESENTATION IS ENLARGEMENTS OF WHAT YOU WERE USING?

13 A. THAT’S CORRECT, SIR.

14 Q. AND DO YOU HAVE THE CONTROL PANEL THAT’S GOING TO

15 ALLOW US TO MAKE THIS THING ON THE BOARD DANCE A LITTLE?

16 A. YES, SIR, TO DEMONSTRATE THE IDENTIFICATION.

17 Q. WHAT WAS THE FIRST THING THAT YOU DEMONSTRATED ON

18 THE BOARD FOR US?

19 A. WE’VE GOT THE TWO IMAGES UP THERE SIDE BY SIDE.

20 NOW, ACTUALLY THERE ARE THREE LEVELS OF COMPARISON

21 WHICH WE MIGHT REFER TO LOOSELY AS PATTERN POINTS AND SHAPES.

22 THE PATTERN IS THE OVERALL RIDGE FLOW DIRECTION. THAT IS THE

23 TENDENCY OF ALL OF THE RIDGES TO FLOW IN CONCERT TOGETHER. THAT

24 HAS TO BE CONSISTENT BETWEEN THE TWO PRINTS. IF THAT’S NOT

25 CONSISTENT, THEN THERE’S NO NEED TO GO ANY FURTHER. THE PRINTS

26 CANNOT HAVE BEEN MADE BY THE SAME PERSON.

27 IF THE RIDGE FLOW IS CONSISTENT, THEN WE GO TO THE

28 SECOND LEVEL, WHICH ARE THE TRADITIONAL POINTS THAT YOU MAY HAVE
5658
1 HEARD OF. THAT WOULD REFER TO ENDING RIDGES OR SPLITTING RIDGES

2 OR DOTS THAT APPEAR WITHIN A PRINT.

3 AND THE THIRD LEVEL WOULD BE THE SHAPES OF THOSE

4 RIDGE UNITS, THE MICROSCOPIC SHAPES. THE INDIVIDUAL RIDGE UNIT

5 IS A SWEAT GLAND AND ALL OF THE SURROUNDING TISSUE, AND THOSE

6 ALSO HAVE SHAPE TO THEM. AND IT’S A SERIES OF THOSE RIDGE UNITS

7 LINING UP TOGETHER THAT FORM A RIDGE.

8 NOW, IN ADDITION TO THOSE THREE LEVELS, THE

9 PATTERN, THE POINTS AND THE SHAPES OF THE RIDGES, WE ALSO LOOK

10 AT WHAT I MIGHT CALL OCCASIONAL FEATURES. THAT IS, THINGS THAT

11 AREN’T ALWAYS IN A PERSON’S SKIN, BUT WHEN THEY ARE THEY

12 REPRODUCE ACCURATELY.

13 I MENTIONED SCARS EARLIER. IF A SCAR HAPPENS TO BE

14 IN THE SKIN, THEN THAT SCAR WILL BE REFLECTED IN LATENT PRINTS

15 AND INKED PRINTS AND HAS TO BE COMPARED ALONG WITH EVERYTHING

16 ELSE.

17 LIKEWISE, CREASES AND WRINKLES, MANY OF THOSE FORM

18 DURING THE FETAL DEVELOPMENT OF THE HUMAN BEING AS WELL. AND

19 SO, IF THOSE CREASES AND WRINKLES ARE PRESENT ON AN AREA OF SKIN

20 THAT LEAVES A PRINT, THOSE SHOULD BE COMPARED. AND IF THE TWO

21 PRINTS CAME FROM THE SAME PERSON, THEY HAVE TO MATCH AS WELL.

22 SO WHEN WE’RE DOING A COMPARISON, WE COMPARE

23 EVERYTHING IN ONE IMAGE WITH EVERYTHING IN THE OTHER IMAGE AND

24 TRY TO RESOLVE ANY DIFFERENCES AND MAKE SURE THAT EVERYTHING IS

25 IN AGREEMENT WITHIN TOLERANCE BASED ON THE DISTORTION.

26 Q. USING THE IMAGE ON THE BOARD, DO YOU SEE THE

27 DIRECTION OF THE FLOW?

28 A. YES. AND IF I CAN PROCEED WITH THIS THEN —
5659
1 Q. YOU JUST APPLIED SOME PINK SURROUNDING THOSE TWO

2 PRINTS. WHAT IS THAT SUPPOSED TO INDICATE?

3 A. WHAT I’VE DONE HERE IS MASK OUT THE BACKGROUND IN

4 THE LATENT PRINT AND MASK OUT THE BACKGROUND IN THE INKED PRINT

5 THAT IS NOT PRESENT IN THE LATENT.

6 SO THE AREA WE’RE LOOKING AT IN THE LATENT PRINT ON

7 THE LEFT THAT WASN’T COVERED BY THE PINK REPRESENTS THE ACTUAL

8 LATENT PRINT THAT IS PRESENT IN THAT IMAGE.

9 LIKEWISE, IN THE INKED PRINT, THE AREA THAT HAS

10 BEEN MASKED OUT IN PINK IS THE AREA OF INKED PRINT THAT IS NOT

11 REPRESENTED IN THE LATENT. SO NOW WE HAVE TO GO THROUGH THE

12 AREA IN THE MIDDLE TO MAKE SURE THAT EVERYTHING IN THERE BETWEEN

13 THE LATENT AND THE INKED PRINT MATCH.

14 Q. CAN YOU SEE THE DIRECTIONAL THAT YOU WERE TALKING

15 ABOUT?

16 A. OKAY. IN THE LATENT PRINT I’VE PUT UP A SERIES OF

17 ARROWS THAT SHOW THE DIRECTION OF THE RIDGE FLOW. THIS IS WHAT

18 I REFERRED TO A MINUTE AGO AS THE LEVEL 1 CHARACTERISTICS, THE

19 GENERAL TENDENCY OF THE RIDGES TO ALL FLOW IN THE SAME

20 DIRECTION. AND IN THE INKED PRINT WE FIND THAT THE RIDGES DO

21 INDEED FLOW CONSISTENTLY WITH THE RIDGES AS WE SEE IN THE LATENT

22 PRINT. SO WE’VE GOT FULL AGREEMENT IN THE GENERAL PATTERN, THAT

23 IS THE RIDGE FLOW.

24 Q. WHAT IS THE NEXT THING THAT YOU LOOKED FOR?

25 A. THEN WE ARE GOING TO START LOOKING FOR OTHER

26 FEATURES. AS I SAID, ONE OF THE PARTS OF ANALYSIS IS THE

27 FINDING AND MEMORIZING OF A TARGET. THAT IS A PREDOMINANT

28 FEATURE IN THE LATENT PRINT.
5660
1 IN THIS LATENT PRINT THE CREASES ARE THE MOST

2 PROMINENT FEATURE, AND YOU CAN SEE THE LARGE CURVED CREASE TO

3 THE RIGHT OF THE LATENT THAT I’M TURNING THE GREEN ON AND OFF

4 IN. SO WE WANT TO LOOK AT THE INKED PRINT, THE KNOWN PRINT THAT

5 IS, AND SEE IF WE’VE GOT SUCH A CREASE.

6 Q. DO YOU?

7 A. YES, WE DO. AND I WILL TURN THESE FEATURES ON AND

8 OFF A FEW TIMES AS I GO THROUGH THEM SO THAT YOU CAN SEE THAT

9 IT’S NOT THE COLOR. THE COLOR’S JUST THERE FOR DEMONSTRATION.

10 IT’S THE CREASE BEHIND IT THAT WE WANT TO PAY ATTENTION TO. AND

11 THE CREASE IN THE LATENT PRINT MARKED IN GREEN IS COMPLETELY

12 CONSISTENT WITH THE CREASE IN THE KNOWN PRINT MARKED IN GREEN.

13 Q. WHAT DID YOU DO FROM THERE?

14 A. OKAY. FROM THERE WE EXPAND OUTWARD AND LOOK FOR

15 ADDITIONAL FEATURES. IN THIS PARTICULAR CASE I WANT TO GO

16 THROUGH ALL OF THE CREASES FIRST.

17 IN THE SECOND JOINT, OR THE MEDIAL PHALANX OF YOUR

18 FINGER, THE CREASES ARE A PROMINENT PART OF THE FINGERPRINT OR

19 THE FRICTION RIDGE SKIN. SO LOOK HERE NOW JUST TO THE RIGHT IN

20 THE LATENT PRINT YOU CAN SEE A SLIGHTLY DARKER SHADE OF GREEN.

21 MR. FELDMAN: EXCUSE ME, YOUR HONOR. THIS IS NOT

22 RESPONSIVE, OBJECTION. THE QUESTION WAS WHAT DID HE DO NEXT.

23 THE COURT: AND THAT’S WHAT HE’S TELLING YOU.

24 YOU MAY CONTINUE, SIR.

25 THE WITNESS: THANK YOU.

26

27 BY MR. DUSEK:

28 Q. ARE YOU WORKING YOUR WAY THROUGH THE OTHER CREASES,
5661
1 SIR?

2 A. YES, SIR, I AM.

3 Q. WOULD YOU DEMONSTRATE AS THEY ARE?

4 A. THIS IS THE SECOND CREASE THAT I LOOKED AT. AND

5 THEN WHEN I GO TO THE INKED PRINT I FIND A LONG CREASE WITH THE

6 SAME SMALL CREASE TO THE UPPER LEFT OF IT.

7 GOING BACK TO THE LATENT, THEN I LOOKED FOR AN

8 ADDITIONAL CREASE. AND HERE, ACTUALLY, I’VE GOT TWO SMALL

9 CREASES OUTLINED JUST TO THE LEFT OF THE ORIGINAL CREASE. THERE

10 THEY ARE.

11 AND NOW WE ARE GOING TO GO TO THE INKED PRINT AND

12 THERE WE FIND TWO CREASES THAT ARE CONSISTENT WITH THE TWO THAT

13 WE’VE ALREADY SEEN IN THE LATENT. GOING BACK —

14 Q. HOW MANY CREASES DID YOU FIND GOING ACROSS THERE?

15 A. IN THE ENTIRE PRINT?

16 Q. YES.

17 A. OKAY. LET ME JUST SKIP THROUGH THOSE THEN QUICKLY.

18 IN THE LATENT PRINT, IN THE INKED PRINT, A LARGE

19 V-SHAPED CREASE. BACK TO THE LATENT PRINT, ANOTHER V-SHAPED

20 CREASE WITH A BREAK IN THE LEFT LEG OF THE “V” AND THEN WE HAVE

21 IT IN THE KNOWN PRINT.

22 BACK TO THE LATENT, AND LET’S SEE, THAT WAS RIGHT

23 THERE. TO THE INKED PRINT WE’VE GOT THE SAME CREASE PATTERN IN

24 THE INKED PRINT.

25 BACK TO THE LATENT. OKAY. NOW, I’M GOING INTO THE

26 RIDGES.

27 Q. THE RIDGES WOULD BE STARTING WHERE ON THE PRINTS?

28 A. WITH THE RIDGES HAVING FOUND THAT ALL OF THOSE
5662
1 CREASES ARE IN AGREEMENT, NOW I WANT TO GO LOOK AT THE RIDGES

2 THEMSELVES. AND I’M GOING TO START AT THE BOTTOM, AND WE ARE

3 GOING TO LOOK AT EVERY SINGLE RIDGE GOING ALL THE WAY FROM

4 BOTTOM TO TOP, LOOKING BOTH FOR AGREEMENT OR FOR DISAGREEMENT.

5 SO —

6 Q. WOULD YOU DEMONSTRATE THAT FOR US?

7 A. ALL RIGHT. STARTING WITH THE LATENT PRINT.

8 AT THE VERY BOTTOM WE’VE GOT THE RIDGE IN RED, AND

9 GOING TO THE INKED PRINT WE SEE THE SAME RIDGE IN RED. AND IF

10 WE LOOK AT THE DIFFERENT SEGMENTS OF THE RIDGE, WE FIND

11 CONSISTENCY; THE LARGE SEGMENT IN THE MIDDLE TO THE RIGHT OF IT,

12 THEN THE TWO LITTLE DOTS, FURTHER TO THE RIGHT ANOTHER DOT.

13 GOING BACK TO THE LATENT PRINT THEN, TO LOOK AT THE

14 NEXT RIDGE WE’VE GOT A RIDGE WHICH IS BROKEN UP BY THE CREASES

15 AND THREE SEGMENTS OF IT SHOWING UP. THE BIGGEST ON THE LEFT,

16 THE SMALLEST IN THE MIDDLE AND THE MEDIUM SIZED ONE ON THE

17 RIGHT.

18 GOING TO THE KNOWN PRINT, WE’VE GOT A RIDGE WHICH

19 IS BROKEN INTO THREE SEGMENTS, AGAIN CONSISTENT WITH WHAT WE SEE

20 IN THE LATENT PRINT.

21 Q. DID YOU CONTINUE TO WORK YOUR WAY UP THAT

22 FINGERPRINT?

23 A. ALL RIGHT.

24 BACK TO THE LATENT PRINT TO ANOTHER RIDGE, THE SAME

25 RIDGE IN THE INKED PRINT, AND THEN HIGHLIGHTING EACH RIDGE, IN

26 TURN A PURPLE RIDGE THAT SPLITS ON THE RIGHT-HAND SIDE OF THE

27 LATENT.

28 Q. IS THAT LIKE A BIFURCATION?
5663
1 A. IT’S A BIFURCATION, YES, SIR.

2 AND WE’VE GOT THE SAME BIFURCATION IN THE SAME

3 POSITION IN THE KNOWN PRINT.

4 BACK TO THE LATENT PRINT. A LIGHTER PURPLE RIDGE

5 WHICH COMES TO A RIDGE ENDING AS IT APPROACHES THAT DARKER

6 PURPLE RIDGE.

7 AND IN THE INKED PRINT WE’VE GOT THE SAME RIDGE

8 ENDING IN THE SAME RELATIVE POSITION, COMPLETE CONSISTENCY

9 BETWEEN THESE POINTS.

10 BACK TO THE LATENT PRINT, A SLIGHTLY BLUISH PURPLE

11 RIDGE THAT RUNS ALL THE WAY THROUGH, AND WE FIND IT IN THE KNOWN

12 PRINT.

13 BACK TO THE LATENT PRINT AGAIN A LIGHTER PURPLE

14 RIDGE THAT COMES TO AN ENDING JUST TO THE RIGHT OF THAT ONE

15 CREASE. AND IN THE INKED PRINT WE FIND THE SAME RIDGE COMING TO

16 AN ENDING IN THE SAME POSITION.

17 BACK TO THE LATENT, JUST ON THE VERY LEFT SIDE A

18 RIDGE ENDING THAT’S REPRESENTED BY TWO RIDGE UNITS. BUT IN THE

19 INKED PRINT WE FIND EXACTLY THE SAME RIDGE ENDING.

20 BACK TO THE LATENT, ANOTHER RIDGE HERE IN LIGHT

21 BLUE COMING INTO A RIDGE ENDING. TO THE INKED PRINT WE SEE IT

22 THERE.

23 BACK TO THE LATENT PRINT, A RIDGE THAT’S HERE

24 OUTLINED IN DARK BLUE THAT RUNS ALL THE WAY THROUGH THE PRINT.

25 BACK TO THE KNOWN PRINT, COMPLETE CONSISTENCY.

26 BACK TO THE LATENT PRINT, ANOTHER RIDGE THAT RUNS

27 ALL THE WAY THROUGH. AND IN THE INKED PRINT, A RIDGE THAT RUNS

28 ALL THE WAY THROUGH, COMPLETE CONSISTENCY AGAIN.
5664
1 BACK TO THE LATENT, A RIDGE THAT COMES IN AND ENDS

2 RIGHT AS IT APPROACHES THAT CREASE. IN THE KNOWN PRINT THE SAME

3 RIDGE ENDING COMPLETELY CONSISTENT WITH WHAT WE SEE.

4 ANOTHER PRINT OR ANOTHER RIDGE IN THE LATENT PRINT

5 IN LIGHT BLUE AGAIN, AND IN THE INKED PRINT WE’VE GOT A RIDGE IN

6 EXACTLY THE SAME RELATIVE POSITION.

7 BACK TO THE LATENT PRINT, A RIDGE HERE OUTLINED IN

8 GREEN WHICH COMES IN FROM THE RIGHT AND THE RIDGE ENDING POINTS

9 TOWARDS THE LEFT. GOING TO THE KNOWN IMPRESSION OR THE KNOWN

10 PRINT, WE’VE GOT THE SAME RIDGE.

11 BACK TO THE LATENT PRINT, A LIGHT GREEN RIDGE

12 OUTLINED HERE WHICH ENDS RIGHT AT THAT FIRST BIG CURVED CREASE

13 THAT WE WERE LOOKING AT. AND WHEN WE GO TO THE KNOWN PRINT,

14 COMPLETE CONSISTENCY THERE.

15 BACK TO THE LATENT FOR THE NEXT RIDGE IN LIGHT BLUE

16 THAT GOES STRAIGHT THROUGH. BACK TO THE KNOWN IMPRESSION,

17 COMPLETELY CONSISTENT.

18 BACK TO THE UNKNOWN IMPRESSION OR THE LATENT, JUST

19 ON THE UPPER RIGHT-HAND CORNER YOU SEE A RIDGE OUTLINED IN BLUE.

20 BUT WHEN WE LOOK AT THE KNOWN IMPRESSION, IT’S EXACTLY WHERE IT

21 SHOULD BE.

22 GOING BACK TO THE LATENT PRINT, THE NEXT RIDGE IS

23 IN BLUE, RUNS ALL THE WAY THROUGH THE PRINT. AND IN THE KNOWN

24 PRINT WE’VE GOT THE SAME RIDGE.

25 BACK TO THE LATENT PRINT, A SHARP PIECE OF RIDGE

26 COMING IN FROM THE LEFT. AND IN THE KNOWN PRINT IT’S EXACTLY

27 WHERE WE EXPECT IT TO BE.

28 BACK TO THE LATENT PRINT, ANOTHER RIDGE COMING IN
5665
1 THAT JOINS THE ONE IN A BIFURCATION OR A RIDGE ENDING AS IT

2 APPROACHES IT RIGHT IN THE UPPER RIGHT-HAND CORNER. COMING BACK

3 TO THE KNOWN IMPRESSION, THE SAME RIDGE ENDING IN EXACTLY THE

4 SAME PLACE.

5 SO HAVING GONE THROUGH ALL OF THESE RIDGES AND

6 FINDING COMPLETE AGREEMENT, NOT ONLY IN THE CREASES AND NOT ONLY

7 IN THE RIDGE FLOW BUT IN ALL OF THE RIDGES, ALL OF THE RIDGE

8 ENDINGS, ALL OF THE SPLITTING RIDGES OR BIFURCATIONS, I WANTED

9 TO LOOK AT SOME OF THE MICROSCOPIC SHAPES AS WELL. AND I’VE

10 PREPARED SOME OF THAT ON AS WELL.

11 Q. DO YOU HAVE ANOTHER SLIDE THAT SHOWS THAT?

12 A. YES, I DO.

13 Q. WOULD YOU TURN TO THAT, PLEASE?

14 A. THIS SHOWS THAT RIDGE ENDING IN THE UPPER

15 RIGHT-HAND CORNER, AND WE’VE OUTLINED SOME OF THOSE RIDGE UNITS.

16 AND THE IMPORTANT THING TO LOOK AT HERE IS THE RELATIVE SIZE,

17 SHAPE AND POSITIONS OF THESE RIDGE UNITS.

18 SO, FOR EXAMPLE, IN THE UNKNOWN PRINT WE’VE GOT TWO

19 RIDGE UNITS VERY CLOSE TOGETHER, IN FACT, JOINING, AND THEN A

20 GAP, ANOTHER RIDGE UNIT, A SMALLER GAP AND ANOTHER RIDGE UNIT.

21 AND WE FIND COMPLETE CONSISTENCY IN THAT LEVEL THREE DETAIL, THE

22 SHAPES.

23 WE’VE GOT THE UPPER RIDGE HERE, THE LONG RIDGE UNIT

24 WITH THE SMALL ONE IN A RATHER TRIANGULAR SHAPED RIDGE UNIT IN

25 THE LATENT PRINT. AND WE SEE THAT ALSO IN THE KNOWN PRINT.

26 GOING TO ANOTHER AREA OF THE LATENT, THIS BIFURCATION IN THAT

27 PURPLE RIDGE AT THE BOTTOM, WE SEE THE RIDGE UNITS THAT COMPRISE

28 THE BIFURCATION. AND IN THE KNOWN PRINT THE SAME CONFIGURATION,
5666
1 COMPLETELY IN AGREEMENT.

2 ABOVE THAT IN THE LATENT PRINT WE’VE GOT TWO RIDGE

3 UNITS CLOSE TOGETHER, A GAP, ANOTHER RIDGE UNIT, ANOTHER GAP.

4 AND IN THE KNOWN IMPRESSION, THE SAME SHAPES.

5 WE CAN LOOK AT ANOTHER PLACE.

6 Q. DO YOU HAVE ANOTHER EXAMPLE?

7 A. YES. THERE’S A THIRD EXAMPLE WHERE I’VE SHOWN SOME

8 OF THE LEVEL THREE DETAIL. AND THAT’S THIS ENDING RIDGE DOWN

9 HERE TOWARDS THE BOTTOM OF THE LATENT PRINT AND THE INKED PRINT.

10 WE’VE GOT THE ENDING RIDGE HERE, A LARGE FAIRLY

11 EVEN RIDGE UNIT NEXT TO IT WITH A RATHER IRREGULAR SHAPED RIDGE

12 UNIT NEXT TO THAT. AND IN THE KNOWN IMPRESSION OR THE KNOWN

13 PRINT WE’VE GOT THE SAME. WE’VE GOT THE SKINNY RIDGE UNIT AT

14 THE BOTTOM WITH AN ELONGATED JOINING OF TWO RIDGE UNITS NEXT TO

15 IT, WHICH WE’VE ALSO GOT IN THE KNOWN PRINT.

16 SO I FIND COMPLETE CONSISTENCY, NOT ONLY IN THE

17 RIDGE FLOW BUT ALSO IN THE CREASES, IN THE RIDGES THEMSELVES, IN

18 THE POINTS THAT ARE PRESENT, IN THE SHAPES. ENOUGH INFORMATION

19 THERE OF SUFFICIENT CLARITY TO CONVINCE ME WITHOUT ANY QUESTION

20 WHATSOEVER THAT THAT LATENT PRINT WAS MADE BY THE AREA OF SKIN

21 REPRESENTED IN THE KNOWN IMPRESSION.

22 Q. NOW, JUST FOR PERMANENCE, DID WE HAVE A DIAGRAM

23 MADE UP THAT REPRESENTS WHAT WE’VE SEEN HERE ON THE BOARD?

24 A. YES, SIR.

25

26 (MARKED FOR ID: = TRIAL EX. 116, PHOTOBOARD/

27 LATENT & KNOWN PRINTS)

28
5667
1 BY MR. DUSEK:

2 Q. I’VE HAD MARKED AS COURT’S EXHIBIT 116 THIS PHOTO

3 DISPLAY BOARD LABELED AT THE TOP “LATENT AND KNOWN.”

4 DO YOU RECOGNIZE WHAT WE HAVE DEPICTED HERE, MR.

5 WERTHEIM?

6 A. YES, SIR, I DO.

7 Q. AT THE TOP PHOTOGRAPH, IS THAT THE LATENT PRINT

8 THAT YOU WERE PROVIDED?

9 A. YES, SIR. ON THE TOP LEFT YOU’VE GOT A

10 PHOTOGRAPHIC ENLARGEMENT OF Q9-6, LATENT PRINT NUMBER “A”

11 BLOCKED IN RED. AND TO THE RIGHT WE’VE GOT THE CORRESPONDING

12 AREA OF SKIN BLOCKED OFF IN RED.

13 Q. AS WE WORK OUR WAY DOWN THE PHOTOGRAPH DO WE HAVE

14 ENLARGEMENTS OF THOSE BLOCKED AREAS?

15 A. YES. WE’VE TAKEN THE BLOCKED-IN AREAS FROM THE TOP

16 AND ENLARGED THAT SPECIFIC AREA IN THE MIDDLE OF THE LATENT ON

17 THE LEFT AND THE KNOWN PRINT ON THE RIGHT.

18 Q. AND AS WE WORK OUR WAY DOWN THE DIAGRAM, DO WE THEN

19 HAVE THE COLOR CODED MATCHING THAT YOU JUST DESCRIBED ON THE

20 BOARD?

21 A. YES, SIR. THE TWO ON THE BOTTOM ARE THE — THE

22 ENLARGEMENTS OF THE FINAL COLOR CODING NOT INCLUDING THE LEVEL

23 THREE DETAIL, THE SHAPES, BUT INCLUDING ALL OF THE CREASES, ALL

24 OF THE RIDGES SHOWING ALL OF THE POINTS, AND EVEN THE SHAPES CAN

25 BE COMPARED FROM THAT.

26 MR. DUSEK: THANK YOU, SIR.

27 THE COURT: ALL RIGHT. CROSS-EXAMINATION.

28 ///
5668
1 CROSS-EXAMINATION +

2 BY MR. FELDMAN:

3 Q. IS THERE SMUDGES IN THIS?

4 A. THERE IS, SIR.

5 Q. WHERE?

6 A. THE TOP AREA OF THIS PRINT, WHICH I DID NOT INCLUDE

7 IN THE COMPARISON, THE REASON IT WASN’T INCLUDED IS BECAUSE THE

8 APPARENT PRESSURE THERE WAS HEAVY ENOUGH TO HAVE BLURRED THOSE

9 RIDGES.

10 Q. SO WHAT DOES THE PRESENCE OF SMUDGES MEAN?

11 A. IN THIS CASE HEAVY PRESSURE.

12 Q. THAT’S ALL?

13 A. YES, SIR.

14 Q. SO DOESN’T TELL YOU ANYTHING ABOUT DIRECTION, DOES

15 IT?

16 A. I’M NOT — I’M NOT SURE EXACTLY I KNOW WHAT YOU

17 MEAN.

18 Q. WELL, LONG STORY SHORT, BASICALLY YOUR TESTIMONY IS

19 YOU AGREE WITH MR. GRAHAM, RIGHT?

20 MR. DUSEK: OBJECTION, ASSUMING HE KNOWS WHAT MR. GRAHAM

21 TESTIFIED TO.

22 THE COURT: SUSTAINED. THAT’S RIGHT.

23

24 BY MR. FELDMAN:

25 Q. BEFORE YOU CAME TO COURT — DO YOU KNOW WHO MR.

26 GRAHAM IS?

27 A. YES, I DO.

28 Q. DID YOU TALK TO HIM BEFORE YOU CAME TO COURT?
5669
1 A. YES, SIR.

2 Q. DO YOU KNOW WHAT HE HAD TO SAY BEFORE HE CAME TO

3 COURT?

4 A. I’VE TALKED TO HIM ON MARCH 9TH I BELIEVE.

5 Q. CAN YOU TELL ME HOW LONG A FINGERPRINT’S GONNA BE

6 IN A PARTICULAR LOCATION?

7 A. NO, SIR.

8 Q. CAN YOU TELL ME HOW A PARTICULAR FINGERPRINT GOT TO

9 A PARTICULAR LOCATION PRECISELY?

10 A. YES, SIR.

11 Q. HOW DID THAT GET THERE?

12 A. THE PERSON WHOSE KNOWN IMPRESSION IS ON THE RIGHT

13 OF THE SCREEN TOUCHED THAT SURFACE.

14 Q. OKAY. BEYOND THAT YOU CAN’T GIVE ME ANY DETAIL,

15 CAN YOU?

16 A. NO, SIR.

17 MR. FELDMAN: NO FURTHER QUESTIONS.

18 THE COURT: ANYTHING FURTHER?

19 MR. DUSEK: NO.

20 THE COURT: OKAY. LET’S GET THIS EXHIBIT BACK TOGETHER

21 THOUGH, MR. DUSEK.

22 MR. DUSEK: YES.

23 THE COURT: IT DOESN’T GO BACK TO ARIZONA WITH SOMETHING

24 THAT WE MIGHT NEED.

25 OKAY, SIR, WE’RE GOING TO BREAK FOR THE EVENING.

26 WE’LL BE ABLE TO GET YOU ALL YOUR EQUIPMENT IN JUST A SECOND,

27 BUT YOUR TIME WITH US IS DONE. YOU ARE UNDER AN ADMONITION NOT

28 TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE MATTER’S
5670
1 CONCLUDED. OKAY?

2 THE WITNESS: VERY GOOD, SIR.

3 THE COURT: IF YOU CAN JUST KINDLY WAIT OUTSIDE FOR A

4 MOMENT, I NEED TO TALK TO MY JURY HERE AND THEN WE’LL GET ALL

5 THIS EQUIPMENT FOR YOU.

6 THE WITNESS: ALL RIGHT. THANK YOU.

7 THE COURT: YES.

8 ALL RIGHT, LADIES AND GENTLEMEN, WE’RE GOING TO

9 BREAK FOR THE EVENING. BEFORE WE DO I JUST HAVE TO TALK TO YOU

10 ABOUT SOMETHING THAT HAS COME TO MY ATTENTION.

11 IT’S VERY APPARENT THAT MR. WESTERFIELD IS IN

12 CUSTODY, AND I THINK IT’S SAFE TO SAY THAT BECAUSE HE’S IN

13 CUSTODY HE HAS TO BE MOVED IN AND OUT OF THE COURTROOM.

14 THIS BUILDING, HAVING BEEN BUILT 40 YEARS AGO AND

15 NOT THE WAY BUILDINGS ARE BUILT ANYMORE IN CRIMINAL COURT

16 BUSINESS, IN THIS PARTICULAR BUILDING IT REQUIRES THAT HE MOVE

17 IN PUBLIC CORRIDORS. OBVIOUS, BECAUSE OF THE NATURE OF THE

18 CASE, IT’S REQUIRED THAT THOSE CORRIDORS BE, FOR LACK OF A

19 BETTER WORD, SEALED OFF MOMENTARILY WHILE HE IS TAKEN FROM ONE

20 PORTION TO ANOTHER.

21 GENERALLY SPEAKING, YOU FOLKS ARE LONG SINCE GONE

22 AND OUT OF HERE BEFORE THAT OCCURS. BUT IT HAS BEEN BROUGHT TO

23 MY ATTENTION THAT ONE OR MORE OF YOU MAY HAVE BEEN STUCK, I

24 SUPPOSE, WHEN THE CORRIDOR IS SEALED OFF SO THAT HE CAN BE TAKEN

25 BACK.

26 THERE’S A COUPLE THINGS WE NEED TO TALK ABOUT THIS

27 SITUATION. NUMBER ONE, HIS CUSTODIAL STATUS HAS ABSOLUTELY

28 NOTHING TO DO WITH THIS CASE OR HIS GUILT OR INNOCENCE OF THE
5671
1 CHARGED OFFENSE. IT IS JUST SIMPLY A FACT. HE IS IN CUSTODY.

2 NUMBER TWO, DESPITE ALL OF THE EFFORTS OF THE

3 JUDGES THAT DO CRIMINAL WORK IN THIS BUILDING, WE HAVE NOT FOUND

4 A BETTER WAY OF MOVING PEOPLE FROM POINT “A” TO POINT “B” OTHER

5 THAN IN A PUBLIC CORRIDOR.

6 SO IF YOU HAPPEN TO GET STUCK, AND YOU HAPPEN TO

7 SEE MR. WESTERFIELD BEING TRANSFERRED, PLEASE DO NOT GIVE IT ANY

8 THOUGHT. IT IS JUST ONE OF THOSE THINGS THAT NEEDS TO BE DONE

9 IN A BUILDING THAT ISN’T ADEQUATELY PREPARED FOR IT. BUT IT HAS

10 NOTHING TO DO WITH THE DECISION YOU HAVE TO MAKE, IT HAS NOTHING

11 TO DO WITH THE DETERMINATIONS OF FACT THAT YOU’RE GOING TO HAVE

12 TO MAKE.

13 IF FOR ANY REASON YOU BELIEVE THAT WHAT YOU MAY

14 HAVE SEEN OR WHAT YOU ENCOUNTER AS IT RELATES TO THIS KIND OF

15 PROCESS IS GOING TO AFFECT YOU, WILL YOU PLEASE BRING IT TO OUR

16 ATTENTION SO THAT WE CAN KNOW ABOUT THAT. BUT ASSUMING I DON’T

17 HEAR FROM YOU, I AM GOING TO ASSUME THAT YOU JUST KNOW AND

18 UNDERSTAND THIS IS THE REALITY OF WHERE WE’RE AT AND IT HAS

19 NOTHING TO DO WITH THIS CASE.

20 OKAY. TOMORROW WE ARE GOING TO BE ABLE TO PUT IN A

21 FULL DAY. HOPEFULLY, WE’LL BE EVEN UP WITH BOSTON BY TOMORROW.

22 I COMMEND TO YOU THE BALL GAME. LAST NIGHT WAS REAL EXCITING

23 UNTIL THE HOME RUN IN THE 8TH INNING.

24 BUT AT ANY RATE, HAVE A SAFE AND A PLEASANT

25 EVENING. PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO

26 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR

27 WITH ANY OTHER PERSONS, NOR FORM OR EXPRESS ANY OPINIONS ON THE

28 CASE UNTIL IT IS SUBMITTED TO YOU FOR DECISION.
5672
1 WE’LL SEE YOU ALL TOMORROW MORNING AT 9:00 A.M., 9

2 O’CLOCK.

3 (AT 4:20 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
4

5 THE COURT: OKAY. THE RECORD SHOULD REFLECT THE JURORS

6 AND ALTERNATES HAVE LEFT THE COURTROOM.

7 COUNSEL, IS THERE ANY REASON FOR US TO GET TOGETHER

8 EARLY TOMORROW MORNING?

9 MR. DUSEK: NO.

10 MR. FELDMAN: I’LL LET YOU KNOW, JUDGE. THANK YOU VERY

11 MUCH.

12 THE COURT: WE’LL STILL LEAVE IT AT ABOUT TEN TILL, FIVE

13 TILL.

14 ALL RIGHT. WE’LL BE IN RECESS UNTIL TOMORROW

15 MORNING.

16

17 (AT 4:22 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 9:00 A.M. THURSDAY, JUNE 20, 2002.)
18
–O0O–
19

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40 - Day 11- June 20th 2002 - Transcript criminal trial David Westerfield
38 - Day 10- June 19th 2002 - Transcript criminal trial David Westerfield