01082 – august 1st 2002 -Transcript of David Westerfield Trial Day 26 – morning 2

TRIAL Day 26- Part 2 – morning 2


SAN DIEGO, CALIFORNIA, THURSDAY, AUGUST 1, 2002, (morning 2)


WITNESS:
Robert D. Hall (Forensic entomologist, testified about dates bugs had access to Danielle’s body – continued)


9108

1 THE COURT: ALL RIGHT. IN THE WESTERFIELD MATTER THE

2 RECORD WILL REFLECT THE APPEARANCE OF COUNSEL, MR. WESTERFIELD,

3 JURORS AND ALTERNATES ARE OUTSIDE.

4 YES, MR. FELDMAN.

5 MR. FELDMAN: THERE’S BEEN AN ADDITION TO A BOARD THAT

6 COUNSEL’S ABOUT TO SHOW THE WITNESS THAT I WANT TO RAISE TO THE

7 COURT, BUT WITH THE FAMILY PRESENT I DON’T WANT TO SHOW THE

8 BOARD. IT’S AN AUTOPSY BOARD.

9 MR. DUSEK: I PULLED IT OFF.

10 THE COURT: WHAT’S THAT?

11 MR. FELDMAN: THANK YOU.

12 THERE WAS AN ISSUE AS TO THE APPROPRIATENESS OF AN

13 INCLUSION AND IT’S BEEN TAKEN CARE OF. THANK YOU.

14 OH, IT’S BEEN PULLED OFF. THANK YOU. THAT WAS THE

15 ISSUE. THANK YOU.

16 THE COURT: ALL RIGHT. LET’S GET THE PANEL.

17 (AT 10:28 A.M. THE JURY ENTERED THE COURTROOM
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
18

19 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.

20 ALL RIGHT. MR. DUSEK.

21 MR. DUSEK: THANK YOU.

22

23 BY MR. DUSEK:

24 Q.: THE USE OF YOUR INSECT DATA, DOCTOR, PROVIDES US

25 WITH THE MINIMUM P.M.I., DOESN’T IT?

26 A.: YES, SIR.

27 Q.: AND THAT’S WHAT ENTOMOLOGISTS CAN DO IS GIVE US THE

28 MINIMUM TIME THE BODY HAS BEEN OUT THERE, CORRECT? 9109

1 A.: MINIMUM OR AT LEAST AS LONG, YES, SIR.

2 Q.: AND IN CASES — THERE ARE CASES WHERE THIS INSECT

3 ACTIVITY CAN BE VERY HELPFUL, ISN’T THERE?

4 A.: THAT’S MY OPINION, YES, SIR.

5 Q.: FOR EXAMPLE, IN THIS CASE YOU CAME UP WITH A PERIOD

6 OF FEBRUARY 12TH THROUGH WHAT DATE?

7 A.: THE 23RD.

8 Q.: 23RD.

9 AND IF WE WERE TRYING TO PROVE — THE 12TH TO THE

10 23RD. AND IF WE WERE TRYING TO PROVE SOMEBODY HAD KILLED THIS

11 BODY — THIS PERSON ON THE 24TH, YOUR INSECT DATA WOULD BE VERY

12 HELPFUL, WOULDN’T IT?

13 A.: IT WOULD SUGGEST THAT THERE WASN’T ENOUGH

14 TEMPERATURE AVAILABLE FOR THE INSECTS TO DEVELOP TO THE STAGE

15 COLLECTED, YES.

16 Q.: WELL, WE’D BE ABLE TO LOOK AT THE CALENDAR AND SAY

17 HEY, LOOK, THE BUGS HAVE BEEN ON THE BODY SINCE BACK ON THE

18 12TH, WHICH INDICATE IT WAS PROBABLY DEAD AT THAT TIME,

19 THEREFORE, THE PERSON COULDN’T HAVE KILLED THE VICTIM ON THE

20 24TH, RIGHT?

21 A.: UNDER THOSE FACTS THAT’S CORRECT, YES.

22 Q.: THAT’S WHEN FORENSIC ENTOMOLOGY IS MOST HELPFUL,

23 ISN’T IT?

24 A.: I’D SAY IT’S A TIME WHEN IT CAN BE VERY HELPFUL,

25 YES.

26 Q.: THIS SITUATION, THOUGH, IS REVERSED, CORRECT?

27 A.: IN THE PRESENT SITUATION, AS I UNDERSTAND IT, AN

28 ISSUE HAS TO DO WITH THE TIME OF DEATH. WHEN YOU SAY THE 9110

1 SITUATION IS REVERSED, IF YOU MEAN BY THAT THE FOCUS IS ON THE

2 FRONT END OF THAT ESTIMATE RATHER THAN THE REAR END, THAT’S

3 CORRECT.

4 Q.: ALL RIGHT.

5 AND AGAIN, YOUR TIME PERIOD BEGINS WHEN A EGG IS

6 LAID ON THE BODY, CORRECT?

7 A.: THAT’S CORRECT.

8 Q.: AND THAT EGG HAS TO SURVIVE FOR YOU TO MAKE YOUR

9 CALCULATIONS, CORRECT?

10 A.: IT MUST HATCH, YES.

11 Q.: SO IF THE FIRST EGG IS ON THAT BODY AND DIES YOU

12 LOSE TRACK OF THAT DATA, RIGHT?

13 A.: IF THAT HAPPENED THEN THERE WOULD BE NO LARVA TO

14 COLLECT LATER.

15 Q.: AND IF THOSE EARLY EGGS WERE EATEN OR DESTROYED BY

16 AN ANIMAL OR OTHER INSECT YOU WOULD LOSE THAT DATA, TOO,

17 WOULDN’T YOU?

18 A.: IF — UNDER THOSE FACTS, IF THE EGGS WERE DESTROYED

19 YOU WOULD HAVE NO SUBSEQUENT LARVAE TO COLLECT AND EVALUATE,

20 THAT’S CORRECT.

21 Q.: AND ANTS EAT LARVAE?

22 A.: ANTS ARE PREDATORS AND THEY CAN EAT LARVAE, YES.

23 Q.: BEETLES EAT LARVAE?

24 A.: CERTAIN BEETLES DO.

25 Q.: CERTAIN BEETLES THAT YOU SAW IDENTIFIED WITH THIS

26 CASE?

27 A.: YES.

28 Q.: FOUR-LEGGED ANIMALS EAT LARVAE? 9111

1 A.: SOME DO.

2 Q.: SUCH AS?

3 A.: CERTAIN SMALL ANIMALS CAN CONSUME FLY LARVAE. I

4 SUSPECT THAT IF YOU HAVE A LARGE PREDATOR THAT IS FEEDING ON A

5 SUBSTRATE CONTAINING FLY LARVAE THAT THEY MAY CONSUME SOME.

6 Q.: WHAT SMALL ANIMALS EAT THE FLY LARVAE?

7 A.: IN SOME CASES BIRDS CAN EAT FLY LARVAE ALMOST LIKE

8 A WORM.

9 Q.: WHAT ELSE?

10 A.: AS FAR AS SMALL ANIMALS ARE CONCERNED, I THINK YOU

11 COULD FACTOR IN MAYBE DOMESTIC DOGS, COYOTES, ANIMALS LIKE THAT.

12 Q.: RATS, MICE, RACCOONS?

13 A.: I SUSPECT.

14 Q.: YOU’VE NEVER STUDIED THAT, HAVE YOU?

15 A.: NO, I HAVEN’T.

16 Q.: THAT’S BEYOND YOUR AREA OF EXPERTISE?

17 A.: THE DIETARY HABITS OF, FOR INSTANCE, RACCOONS, I

18 HAVE NOT STUDIED THAT.

19 Q.: AND THERE ARE ALSO ANIMALS THAT EAT WHAT YOU CALL

20 THE SUBSTRATE OR THE BODY ITSELF, IS THAT RIGHT?

21 A.: THAT’S CORRECT.

22 Q.: WHEN THEY DO THAT THERE IS THE VERY REAL

23 POSSIBILITY THAT THEY WOULD BE EATING SOME OF THE FLY LARVAE

24 THAT HAVE BEEN LEFT BEHIND, RIGHT?

25 A.: EATING SOME OF THE FLY LARVAE, YES.

26 Q.: AND IF ANY OF THOSE SITUATIONS OCCUR, YOU WOULD BE

27 LOSING EVIDENCE TO ACCURATELY ASSESS THE BEGINNING OF YOUR

28 MINIMAL P.M.I., CORRECT? 9112

1 A.: YOU MIGHT LOSE SOME OF THE EVIDENCE, YES.

2 Q.: AND IN ANY SPECIFIC CASE THERE’S NO WAY OF KNOWING

3 HOW MUCH WE’VE LOST, IS THERE?

4 A.: NOT UNLESS IT’S A CONTROLLED EXPERIMENT.

5 Q.: SO AGAIN, YOUR NUMBERS ARE ESTIMATIONS FOR US?

6 A.: BY THE TERM “ESTIMATIONS” I SAID EARLIER THAT BY

7 LOGICAL DEVELOPMENT IS — IS INHERENTLY A — A — AN INEXACT

8 ENDEAVOR. AND THEREFORE, BIOLOGICAL DATA ARE BEST EXPRESSED AS

9 A RANGE RATHER THAN AS AN EXACT NUMBER. SO DOES THAT — DOES

10 THAT COVER YOUR QUESTION?

11 Q.: WHY IS IT INEXACT?

12 A.: THERE’S A CERTAIN AMOUNT OF VARIABILITY THAT OCCURS

13 IN THE BIOLOGICAL WORLD.

14 Q.: IS THAT BECAUSE THE SCIENCE ITSELF ISN’T GOOD

15 ENOUGH TO PIN ANYTHING DOWN TO EXACT NUMBERS?

16 A.: NO. IT’S BECAUSE OUR — OUR NATURAL WORLD IS

17 INHERENTLY VARIABLE.

18 Q.: ALL RIGHT.

19 IF WE WERE TO GIVE THREE OR FOUR QUALIFIED

20 ENTOMOLOGISTS THE SAME DATA TO WORK WITH, WOULD YOU EXPECT THEM

21 TO GET THE SAME ANSWER?

22 A.: I WOULD EXPECT THEM TO COME PRETTY CLOSE.

23 Q.: WHY WOULDN’T THEY GET THE SAME EXACT ANSWER?

24 A.: IN MY CASE THE SAME EXACT ANSWER WAS NOT OBTAINABLE

25 BECAUSE I WAS WORKING WITH ACCUMULATED DEGREE DAYS RATHER THAN

26 ACCUMULATED DEGREE HOURS.

27 Q.: COULD YOU HAVE DONE IT THE OTHER WAY?

28 A.: I COULD — I COULD HAVE DONE IT THE OTHER WAY BUT 9113

1 NOT WITH THE SINGING HILLS DATA.

2 Q.: YOU COULD HAVE DONE IT WITH THE BROWN FIELD DATA,

3 COULDN’T YOU?

4 A.: THAT’S CORRECT.

5 Q.: DID YOU?

6 A.: I DID INSOFAR AS I REVIEWED DR. HASKELL’S

7 CALCULATIONS AND I MADE MY OWN CALCULATIONS, I CALCULATED

8 ACCORDING TO ACCUMULATED DEGREE DAYS.

9 Q.: WHEN YOU CALCULATED MONTGOMERY — OR I’M SORRY —

10 BROWN FIELD, YOU CAME TO CONCLUSIONS, DIDN’T YOU?

11 A.: ON THE BROWN FIELD DATA, YES.

12 Q.: YOUR NUMBER’S THE SAME AS — EXACTLY THE SAME AS

13 HASKELL?

14 A.: I DON’T BELIEVE THEY’RE EXACTLY THE SAME. THEY’RE

15 IN GENERAL AGREEMENT.

16 Q.: IF WE WERE TO GIVE AN X-RAY TO A MEDICAL DOCTOR OF

17 A SUSPECTED BROKEN ARM, WOULDN’T WE EXPECT ANYBODY WHO KNOWS HOW

18 TO READ AN X-RAY TO CONSISTENTLY TELL US IT’S BROKEN OR NOT?

19 MR. FELDMAN: ARGUMENTATIVE, IRRELEVANT.

20 THE COURT: OVERRULED.

21 THE WITNESS: IF I UNDERSTAND YOUR QUESTION — I WANT TO

22 MAKE SURE THAT I GIVE YOU THE BEST RESPONSE I CAN. COULD I HEAR

23 THAT QUESTION AGAIN?

24

25 BY MR. DUSEK:

26 Q.: YOU GIVE AN X-RAY OF A SUSPECTED BROKEN ARM TO FOUR

27 QUALIFIED MEDICAL DOCTORS. WOULDN’T YOU EXPECT THEM ALL TO BE

28 ABLE TO READ IT THE SAME, REACHING THE SAME CONCLUSION? 9114

1 A.: I DON’T KNOW. I’M NOT A RADIOLOGIST.

2 Q.: YOU’VE BEEN ABLE TO REVIEW THE FINDINGS OF DR.

3 FALK — OR DAVID FAULKNER; IS THAT CORRECT?

4 A.: I’VE READ HIS REPORT.

5 Q.: AND NEAL HASKELL.

6 A.: YES, I’VE READ HIS REPORT.

7 Q.: AND LEE GOFF?

8 A.: I’VE READ HIS REPORT ALSO.

9 Q.: SO YOU KNOW THE MINIMUM P.M.I. THAT THEY GIVE US?

10 A.: YES.

11 Q.: LET ME PUT ON THE BOARD HERE, SEE IF YOU CAN ADD TO

12 THE LIST.

13 FOR ILLUSTRATION PURPOSES I’VE GOT THIS DIAGRAM

14 HERE THAT IS LABELED AT THE TOP “INSECT ACTIVITY ESTIMATIONS.”

15 WE HAVE YOUR NAME DOWN AT THE BOTTOM, CORRECT?

16 A.: THAT’S CORRECT.

17 Q.: COULD YOU STEP TO THE BOARD AND PUT IN THE TIME

18 PERIOD THAT YOU FEEL BEST ACCURATELY REFLECTS THE MINIMUM P.M.I.

19 BASED UPON YOUR CALCULATIONS?

20 THE COURT: THIS WILL BE 197 FOR IDENTIFICATION.

21 MR. DUSEK: ONE —

22 THE COURT: 197.

23 (MARKED FOR ID: = TRIAL EX. 197, “INSECT

24 ACTIVITY ESTIMATES)

25 BY MR. DUSEK:

26 Q.: LET ME WRITE IN FIRST, DOCTOR, THE NUMBER.

27 197 IS DOWN AT THE LOWER RIGHT-HAND CORNER, YOUR

28 HONOR. 9115

1 A.: (WITNESS INDICATING ON EXHIBIT 197)

2 Q.: YOU’VE WRITTEN IN FEBRUARY 12TH THROUGH FEBRUARY

3 23RD?

4 A.: THAT’S CORRECT.

5 Q.: BASED UPON YOUR REVIEW OF THE FINDINGS AND

6 CONCLUSIONS OF THE OTHER PEOPLE WHO HAVE TESTIFIED IN THIS CASE

7 HAS ANYONE ELSE HAD THE BEGINNING DATE OF FEBRUARY 12TH?

8 A.: I’M THE ONLY ONE REFLECTED ON THAT LIST.

9 Q.: HAS ANYONE ELSE HAD AN ENDING DATE OF FEBRUARY

10 23RD?

11 A.: THAT APPEARS TO BE UNIQUE ALSO.

12 Q.: HOW CAN EVERYBODY COME TO DIFFERENT NUMBERS IN YOUR

13 FIELD?

14 MR. BOYCE: YOUR HONOR, I BELIEVE THAT THAT MISSTATES THE

15 EVIDENCE AS FAR AS DR. HASKELL’S CONCERNED.

16 THE COURT: OVERRULED. OVERRULED.

17 THE WITNESS: HOW CAN PEOPLE COME TO DIFFERENT NUMBERS.

18 IN — FIRST OF ALL, MY — MY CALCULATIONS WERE

19 BASED ON ACCUMULATED DEGREE DAYS AND NOT ACCUMULATED DEGREE

20 HOURS. AND I WAS WILLING AND WANTED TO BE AS CONSERVATIVE AS

21 POSSIBLE. AND BECAUSE THE BIOLOGICAL DATA HAVE BEEN ANALYZED

22 NOW, FIRST OF ALL, THEY’RE INHERENTLY VARIABLE BUT THEY’VE BEEN

23 ANALYZED BY NOW TWO DIFFERENT TECHNIQUES OF APPLYING THE

24 TEMPERATURE DATA, MY CONCLUSION WOULD BE THAT THE ESTIMATES ARE

25 MORE CONSISTENT THAN REMARKABLY INCONSISTENT.

26 Q.: ARE YOU SAYING CLOSE ENOUGH FOR A MURDER CASE?

27 A.: NO. WHAT I’M SAYING IS THAT —

28 MR. FELDMAN: THAT’S ARGUMENTATIVE, OBJECTION, YOUR 9116

1 HONOR.

2 THE COURT: THE DOCTOR’S ALREADY ANSWERED IT. OVERRULED.

3

4 BY MR. DUSEK:

5 Q.: BEFORE THE FLY — WELL, FIRST OF ALL, YOU TOLD US

6 THAT FLIES, IN YOUR EXPERIENCE, WILL COME TO THE BODY AND SNIFF

7 OUT THE BODY FAIRLY QUICKLY, RIGHT?

8 A.: YES.

9 Q.: UNDER ORDINARY CIRCUMSTANCES, RIGHT?

10 A.: AS I SAID EARLIER, AS LONG AS CERTAIN CONDITIONS

11 ARE MET, AND THOSE CONDITIONS ARE THAT THE FLIES HAVE ACCESS TO

12 THE BODY, THAT IT —

13 Q.: I’M SORRY. GO AHEAD.

14 A.: — THAT IT BE WITHIN THE SEASON OF THE YEAR WHEN

15 FLIES ARE ACTIVE, AND THAT IT BE WITHIN DAYLIGHT HOURS. AND IF

16 THOSE CONDITIONS ARE MET, THEN THE EXPERIMENTAL DATA THAT IS

17 GENERALLY ACCEPTED BY THE SCIENTIFIC COMMUNITY WOULD SHOW THAT

18 FLIES ACCESS A DECEDENT VERY RAPIDLY.

19 Q.: BUT YOU’RE NOT TELLING US WHEN THE FLIES ACCESSED

20 THE BODY WITH YOUR COMPUTATIONS, ARE YOU? AREN’T YOU TELLING US

21 WHEN THEY LAID THE EGGS?

22 A.: WELL, I MEAN ACCESSED THE BODY. I PERHAPS SHOULD

23 HAVE BEEN CLEARER. THE ACCESSING OF THE BODY AND THE ACT OF

24 LAYING THE EGGS OR DEPOSITING THE FLY LARVAE THAT SOME SPECIES

25 DO WOULD OCCUR VERY RAPIDLY.

26 Q.: HOW MANY HOURS?

27 A.: THE DATA WOULD SHOW MINUTES TO HOURS.

28 Q.: IN THIS CASE HOW LONG? 9117

1 A.: I WOULD — I WOULD SUGGEST THAT AFTER THE EXPOSURE

2 OF THE BODY, AND IF IT WAS DONE AT NIGHT, AND WHEN THE NEXT DAY

3 CAME AND THERE WAS DAYLIGHT, THAT IT OCCURRED VERY QUICKLY.

4 Q.: WHAT DO YOU MEAN TO COMMUNICATE BY VERY QUICKLY?

5 A.: MINUTES TO HOURS.

6 Q.: YOU ARE MAKING ASSUMPTIONS ON THAT, THOUGH, AREN’T

7 YOU?

8 A.: I’M RELYING UPON THE — THE SORT OF DATA THAT IS

9 COMMONLY ACCEPTED WHEN A DECEDENT IS EXPOSED TO INSECT ACTIVITY.

10 THE QUESTION COMES UP FREQUENTLY HOW LONG DOES IT TAKE. AND THE

11 CONDITIONS THAT I GAVE, THOSE BEING MET, THE ANSWER THAT IS

12 REPEATED IN EXPERIMENTS TIME AFTER TIME IS MINUTES TO HOURS. IT

13 OCCURS VERY QUICKLY. ALTHOUGH I CANNOT QUOTE TO YOU THE EXACT

14 NUMBER OF MINUTES, I CAN TELL YOU THAT IT DOES NOT TAKE DAYS.

15 IT TAKES MINUTES TO HOURS.

16 Q.: THAT’S ASSUMING THE BODY IS A FRESH BODY, CORRECT?

17 A.: IT’S — WHEN YOU SAY — I DON’T GUESS I KNOW WHAT

18 YOU MEAN BY A FRESH BODY.

19 Q.: A BODY THAT’S RECEPTIVE TO FLIES?

20 A.: FROM MY EXPERIMENTAL WORK, I NOTED THAT BODIES THAT

21 HAVE BEEN DEAD UP TO FOUR DAYS AND PROTECTED FROM INSECT ATTACK

22 CONTINUE TO BE HIGHLY ATTRACTED TO INSECTS WITHIN MINUTES TO

23 HOURS.

24 Q.: AND THIS IS EXPERIMENTAL WORK YOU’VE DONE IN

25 MISSOURI?

26 A.: THAT’S CORRECT.

27 Q.: WHAT IS THE HUMIDITY IN MISSOURI THIS TIME OF YEAR?

28 A.: AT THIS TIME OF YEAR THE HUMIDITY IS RELATIVELY

9118

1 HIGH.

2 Q.: IT’S UNGODLY IN THOSE AREAS THIS TIME OF YEAR,

3 ISN’T IT?

4 MR. FELDMAN: VAGUE AS TO THE TERM UNGODLY.

5 THE COURT: YOU DON’T WANT TO PUT THE DOCTOR ON THE SPOT

6 EITHER. REPHRASE IT.

7

8 BY MR. DUSEK:

9 Q.: OUR PADRES GO BACK AND PLAY THE CARDINALS IN

10 MISSOURI. THEY TALK ABOUT A HEAT INDEX BACK THERE IN THE SUMMER

11 TIME, DON’T THEY?

12 A.: THAT’S CORRECT.

13 Q.: AND THEY FACTOR IN THE EXTREMELY HIGH HUMIDITY IN

14 MISSOURI, DON’T THEY?

15 A.: INTO CALCULATING A HEAT INDEX?

16 Q.: YES.

17 A.: THAT’S CORRECT.

18 Q.: DON’T WE ANTICIPATE HUMIDITY IN THE 80, 90 RANGE IN

19 MISSOURI THIS TIME OF YEAR?

20 A.: THAT CAN HAPPEN.

21 Q.: IN FACT, IT HAPPENS ALL SUMMER LONG, DOESN’T IT?

22 A.: IN SOME CASE IT DOES.

23 Q.: AND THE EXPERIMENTAL DATA THAT YOU’VE BEEN TALKING

24 ABOUT OCCURS IN MISSOURI, RIGHT?

25 A.: THE EXPERIMENTS WERE DONE IN MISSOURI, THAT’S

26 CORRECT.

27 Q.: DO YOU HAVE SANTA ANA WINDS IN MISSOURI?

28 A.: WE HAVE NO WINDS THAT WE WOULD CALL SANTA ANA 9119

1 WINDS.

2 Q.: DO YOU HAVE ANY DRY WINDS THAT COME IN OFF A DESERT

3 REGION?

4 A.: NO, BECAUSE THERE ARE NO MAJOR DESERTS PROXIMATE TO

5 MISSOURI. THE ANSWER TO THAT WOULD BE NO.

6 Q.: THERE’S LOTS OF WATER IN MISSOURI, ISN’T THERE?

7 RIVERS, LAKES, THAT TYPE OF THING?

8 A.: THAT’S CORRECT.

9 Q.: AND THE DECOMPOSITION THAT YOU’RE TALKING ABOUT IS

10 A WET DECOMPOSITION, ISN’T IT?

11 A.: WHEN YOU SAY WET, I’M STRUGGLING WITH HOW TO

12 CHARACTERIZE THAT FROM WHAT I KNOW ABOUT THE SCIENCE OF

13 ENTOMOLOGY. AND SO I WANT TO TELL YOU THE BEST ANSWER I CAN,

14 BUT WHEN YOU SAY A WET DECOMPOSITION, THAT DOESN’T STRIKE A CORD

15 WITH ME.

16 Q.: YOU TOLD US EARLIER THAT YOU’RE FAMILIAR WITH DR.

17 RODRIGUEZ, IS THAT RIGHT?

18 A.: YES.

19 Q.: PROFESSIONALLY?

20 A.: YES. I KNOW HIM PROFESSIONALLY.

21 Q.: AS WHAT?

22 A.: AS A FORENSIC ANTHROPOLOGIST.

23 Q.: PERHAPS THE MOST EMINENTLY QUALIFIED INDIVIDUAL IN

24 THIS COUNTRY IN THAT FIELD?

25 A.: THAT MAY BE.

26 Q.: AND YOU ALSO WERE ASKED THAT HE’S NOT QUALIFIED

27 FROM YOUR KNOWLEDGE IN ENTOMOLOGY, RIGHT?

28 A.: HE’S NOT AN ENTOMOLOGIST, NO.

9120

1 Q.: SO HE SHOULD NOT BE RENDERING OPINIONS REGARDING

2 THE LIFE CYCLE AND HOW LONG FLIES TAKE TO DEVELOP, CORRECT?

3 A.: I WOULD THINK THAT WOULD BE THE PROVINCE OF THE

4 ENTOMOLOGIST, THAT’S CORRECT.

5 Q.: ARE YOU AN ANTHROPOLOGIST?

6 A.: NO, I’M NOT.

7 Q.: WHAT IS AN ANTHROPOLOGIST?

8 A.: AN ANTHROPOLOGIST WOULD BE AN INDIVIDUAL WHO HAS

9 THE PROPER CREDENTIALS IN ANTHROPOLOGY.

10 Q.: WHICH IS, THE FIELD OF ANTHROPOLOGY?

11 A.: WELL, THE FIELD OF ANTHROPOLOGY WOULD BE

12 FUNDAMENTALLY THE STUDY OF THE HUMAN SKELETON, THE HUMAN BODY

13 AND IN PARTICULAR FOCUSING ON SKELETAL REMAINS.

14 Q.: AND HOW THEY GO THROUGH THE DECOMPOSITION PROCESS,

15 CORRECT?

16 A.: IF I CAN RESPOND TO THAT QUESTION, AND I DON’T WANT

17 TO — IF YOU’RE ASKING ME ABOUT RELATIVE EXPERTISE IN RENDERING

18 AN OPINION ON DECOMPOSITION AND THE DECOMPOSITION PROCESS, I

19 WOULD PUT THAT IN THE PROVINCE OF THE FORENSIC PATHOLOGIST.

20 Q.: OR EVEN IF THE BODY IS SO BADLY DECOMPOSED, INTO A

21 FORENSIC ANTHROPOLOGIST, CORRECT?

22 A.: WELL, IF THE BODY IS A SKELETON — I DON’T WANT TO

23 BE ARGUMENTATIVE BUT IF YOU’RE ASKING ME WHO I WOULD RETAIN TO

24 GIVE AN OPINION WITH RESPECT TO THE PROCESS OF DECOMPOSITION, IN

25 MY OPINION THAT’S AN OPINION THAT’S BEST RENDERED BY A FORENSIC

26 PATHOLOGIST.

27 Q.: THE WORK THAT YOU’VE DONE REGARDING THESE

28 DECOMPOSING BODIES IN MISSOURI, THE BODIES THAT YOU’RE TALKING 9121

1 ABOUT GET MOIST AND WET AND PUTRIFY, DON’T THEY?

2 A.: THEY CAN FREQUENTLY PUTRIFY, YES.

3 Q.: THAT’S WHAT THEY DO IN THE EXPERIMENTS THAT YOU’VE

4 BEEN INVOLVED IN, RIGHT?

5 A.: NOT ALWAYS.

6 Q.: DO THEY START WITH THE MUMMIFICATION PROCESS AS

7 SOON AS THAT’S THE FIRST CHANGE?

8 MR. FELDMAN: THAT’S VAGUE, OBJECTION.

9 THE COURT: SUSTAINED. REPHRASE IT.

10

11 BY MR. DUSEK:

12 Q.: HAVE YOU EVER STUDIED YOURSELF ANY BODIES THAT ARE

13 PLACED OUT IN A DRY DESERT-LIKE ENVIRONMENT?

14 A.: IF THE SENSE OF YOUR QUESTION IS HAVE I EVER DONE

15 ANY EXPERIMENTAL WORK IN THE SAN DIEGO AREA, THE ANSWER WOULD BE

16 NO.

17 Q.: THAT’S NOT WHAT I ASKED. COULD YOU ANSWER WHAT I

18 ASKED?

19 A.: OKAY. WOULD YOU GIVE ME THE QUESTION AGAIN?

20 MR. DUSEK: COULD THE REPORTER READ IT?

21 THE COURT: ALL RIGHT. OPHELIA, WOULD YOU READ IT BACK?

22 (RECORD READ)

23 THE WITNESS: DRY DESERT-LIKE ENVIRONMENT IF CERTAIN

24 CONDITIONS DURING THE SUMMERS IN MISSOURI CAN PRODUCE AN

25 EXTREMELY ARID ENVIRONMENT, VERY DRY, AND UNDER THOSE

26 CIRCUMSTANCES WE’VE RUN EXPERIMENTS. IS THAT RESPONSIVE TO YOUR

27 QUESTION?

28 /// 9122

1 BY MR. DUSEK:

2 Q.: YOU HAVE RUN EXPERIMENTS IN DRY DESERT-LIKE

3 CONDITIONS?

4 MR. FELDMAN: YOUR HONOR, THE WITNESS HAS ANSWERED THE

5 QUESTION. IT’S ASKED AND ANSWERED.

6 THE COURT: I THINK HE’S ANSWERED AS BEST HE CAN. MOVE

7 ON, MR. DUSEK.

8

9 BY MR. DUSEK:

10 Q.: WHAT WAS THE CONDITION OF THIS BODY?

11 MR. FELDMAN: VAGUE AS TO TIME.

12 THE COURT: OVERRULED.

13

14 BY MR. DUSEK:

15 Q.: ON THE PHOTOGRAPH — YOU SAW A PHOTOGRAPH OF THIS

16 BODY, DIDN’T YOU?

17 A.: YES.

18 Q.: YOU HAD A CHANCE TO LOOK AT THEM, DIDN’T YOU?

19 A.: YES, I HAVE.

20 Q.: IS THAT BODY MUMMIFIED BASED UPON YOUR

21 UNDERSTANDING OF THE TERM?

22 A.: I BELIEVE I SAID EARLIER THAT THE TERM

23 “MUMMIFICATION,” IF I CAN USE THE TERM DRIED OUT, THEN I

24 WOULD — I WOULD RATE THAT BODY AS PARTIALLY DRIED OUT.

25 Q.: HOW LONG HAVE YOU BEEN A LAWYER?

26 A.: FIVE YEARS.

27 Q.: AND YOU’VE TESTIFIED SINCE YOU’VE BECOME A LAWYER?

28 A.: YES, I HAVE. 9123

1 Q.: HOW OFTEN?

2 A.: SEVERAL TIMES.

3 Q.: DID YOU REVIEW THE TESTIMONY OF DR. RODRIGUEZ?

4 A.: I READ THE TESTIMONY, YES, SIR.

5 Q.: DID YOU READ THE TESTIMONY AND REPORT OF BRIAN

6 BLACKBOURNE?

7 A.: WOULD YOU TELL ME WHAT BLACKBOURNE’S POSITION IS?

8 Q.: DO YOU RECALL READING HIS TESTIMONY REGARDING THE

9 STATE OF MUMMIFICATION OF THIS BODY?

10 A.: IF I’M CORRECT IN REMEMBERING, BLACKBOURNE IS THE

11 PATHOLOGIST WHO DID THE AUTOPSY?

12 Q.: HE IS.

13 A.: IS THAT CORRECT? YES, I READ HIS REPORT.

14 Q.: AND YOU ARE NOT IN A POSITION TO TELL US HOW LONG

15 IT TAKES A BODY FROM ITS NATURAL CONDITION TO GET TO THE

16 CONDITION IN COURT’S EXHIBIT 7, THE AUTOPSY BOARD, ARE YOU?

17 A.: IN MY — AM I QUALIFIED TO GIVE AN ESTIMATE AS TO

18 THAT LENGTH OF TIME, NO.

19 Q.: YOU WOULD NEED A MEDICAL DOCTOR OR A FORENSIC

20 ANTHROPOLOGIST, CORRECT?

21 A.: I WOULD WANT THE OPINION OF A COMPETENT FORENSIC

22 PATHOLOGIST, YES.

23 Q.: WHEN THE FLIES COME TO THE BODY AND YOU SAY LAND

24 WITHIN WHATEVER PERIOD OF TIME IT IS, WHERE DO THEY GO ON A

25 FRESH BODY?

26 A.: THE USUAL PATTERN IS THAT ABSENT ANY SORT OF WOUNDS

27 OR ARTIFICIAL OPENING INTO THE BODY THEY’LL GO TO THE NATURAL

28 OPENING OF THE BODY.

9124

1 Q.: EYES, EARS, NOSE, THROAT AND GENITAL AREA, CORRECT?

2 A.: THAT’S CORRECT.

3 Q.: AND YOU HAD A CHANCE TO REVIEW THE MEDICAL FINDINGS

4 IN THIS CASE WHERE THEY FOUND NO SIGNS OF GUNSHOT WOUNDS OR

5 KNIFE WOUNDS OR TRAUMA ON THE BODY, CORRECT?

6 A.: I DON’T RECALL READING ABOUT ANY.

7 Q.: SO IF THIS WERE A NORMAL SITUATION YOU WOULD EXPECT

8 THE FLIES TO GO TO THE EYES, EARS, NOSE, THROAT AND THE GENITAL

9 OPENING, CORRECT?

10 A.: THAT WOULD BE WHAT WOULD TYPICALLY BE EXPECTED,

11 YES, SIR.

12 Q.: THIS WAS NOT A TYPICAL SITUATION, WAS IT?

13 A.: WHEN YOU SAY A TYPICAL SITUATION, I’M NOT SURE

14 EXACTLY WHAT THAT MEANS.

15 Q.: I’M USING THE TERM EXACTLY THE SAME WAY YOU JUST

16 USED IT.

17 MR. FELDMAN: THAT’S ARGUMENTATIVE. THERE IS NO QUESTION

18 PENDING.

19 THE COURT: OVERRULED.

20 MR. FELDMAN: JUDGES, THERE’S BEEN NO QUESTION PENDING.

21 THE COURT: HE’S BEEN ASKED A QUESTION, THEN HE ASKED A

22 QUESTION IN RESPONSE. GO AHEAD, COUNSEL.

23

24 BY MR. DUSEK:

25 Q.: USING THE TERM TYPICAL, EXACTLY THE SAME YOU USED

26 IT?

27 A.: IF I WOULD SAY TYPICAL, WHAT I WOULD MEAN WOULD BE

28 A DECEDENT WHO HAD BEEN DEAD MINUTES TO HOURS AND HAD BEEN 9125

1 EXPOSED TO INSECTS DURING THE SEASON OF THE YEAR WHEN INSECTS

2 ARE AVAILABLE AND DURING THE DAYLIGHT HOURS.

3 Q.: WHEN YOU USED TYPICAL IN THIS CASE YOU TALKED ABOUT

4 THE INSECTS TYPICALLY GOING TO THE EYES, EARS, NOSE, THROAT AND

5 GENITAL OPENING, CORRECT?

6 A.: THAT’S CORRECT.

7 Q.: IN THIS CASE, DID THEY ACT TYPICALLY, THE INSECTS?

8 A.: FROM WHAT I’VE SEEN OF THE PHOTOGRAPHS THERE WAS

9 NOT THE EXTENT OF INSECT INFESTATION IN THE FACIAL AREA THAT I

10 WOULD CONSIDER TYPICAL.

11 Q.: DID YOU SEE ANY MAGGOTS OR FLIES ON ANY OF THE

12 PHOTOGRAPHS YOU EXAMINED?

13 A.: IN THE FACIAL AREA?

14 Q.: YES.

15 A.: I DID NOT.

16 Q.: SO YOU SAW ABSOLUTELY NO EVIDENCE OF THAT, CORRECT?

17 A.: THERE WAS NO EVIDENCE IN THE PHOTOGRAPHS.

18 Q.: AND YOU’VE HAD A CHANCE TO LOOK AT DR.

19 BLACKBOURNE’S REPORT?

20 A.: YES, I HAVE.

21 Q.: YOU’VE ALSO HAD A CHANCE TO LOOK AT DAVID

22 FAULKNER’S REPORT?

23 A.: YES, SIR.

24 Q.: AND NONE OF THEM TALK ABOUT ANY SORT OF MAGGOT MASS

25 IN THE HEAD REGION, CORRECT?

26 A.: I CAN’T RECALL OF ANY MENTION OF MAGGOT MASS IN THE

27 HEAD REGION, NO, SIR.

28 Q.: WE MAY HAVE HAD ONE FLY PERHAPS IN AN EYE SOCKET, 9126

1 IS THAT THE BEST YOU CAN REMEMBER?

2 A.: I HONESTLY DON’T REMEMBER ABOUT ONE FLY IN AN EYE

3 SOCKET BUT —

4 Q.: IF THIS WAS A FRESH BODY DIDN’T THEY GO THERE?

5 A.: I DON’T KNOW.

6 Q.: WHY NOT? WHY — YOU TOLD US YOUR QUALIFICATIONS.

7 YOU’RE A DIPLOMATE, IS THAT RIGHT?

8 A.: THAT’S CORRECT.

9 Q.: WHY DON’T YOU KNOW WHETHER OR NOT THE FLIES BEHAVED

10 TYPICALLY IF THIS WAS A FRESH KILL?

11 A.: THE FLIES WERE — WERE NOT ABUNDANT IN THE HEAD

12 REGION. AND FOR ME TO EXPLAIN WHY IS, YOU KNOW, I COULD

13 SPECULATE BUT I’LL JUST SAY I DON’T KNOW WHY THEY WERE NOT IN

14 THE HEAD REGION.

15 Q.: LET’S GO THROUGH IT, THEN.

16 THE FLIES GO TO THE EYES, EARS, NOSE AND THROAT FOR

17 A REASON, DON’T THEY?

18 A.: YES.

19 Q.: WHAT’S THAT REASON?

20 A.: BECAUSE IT’S A PLACE WHERE THE FEMALES WANT TO

21 DEPOSIT THEIR EGGS OR LARVAE.

22 Q.: WHY DO THEY LIKE THAT AREA?

23 A.: BECAUSE IT’S AN AREA OF EASY INGRESS INTO THE BODY.

24 Q.: WHAT ELSE? ISN’T IT BECAUSE IT’S A MOIST AREA?

25 A.: THE MOISTURE THAT IS AVAILABLE IN THE SINUSES, IN

26 THE EYE SOCKETS YOU COULD FACTOR DATA IN ALSO.

27 Q.: THEY LIKE THAT, DON’T THEY?

28 A.: I’M NOT SURE WHETHER THEY LIKE IT. THE FACT IS

9127

1 THAT THE IMMATURES OF THESE FLIES EXIST IN A SEMI-AQUATIC

2 ENVIRONMENT. SO THE MOISTURE IS SOMETHING THAT IS ESSENTIAL FOR

3 THEIR SURVIVAL.

4 Q.: SO THEY NEED THE MOISTURE IN A FRESH BODY IN THOSE

5 OPENINGS TO SURVIVE, RIGHT?

6 A.: THEY NEED THE MOISTURE TO SURVIVE AND THEY CAN

7 CERTAINLY FIND IT IN THE EYE SOCKETS OF A NEWLY DEAD INDIVIDUAL.

8 Q.: WHY DON’T THEY LAND AND BEGIN THEIR FLY LAYING ON

9 THE BELLY?

10 A.: THE SKIN FORMS A PROTECTIVE LAYER.

11 Q.: SO THERE IS NO MOISTURE THERE, CORRECT?

12 A.: THERE IS NO MOISTURE AND NO AREA INGRESS AS LONG AS

13 THERE ISN’T A WOUND.

14 Q.: LET’S CHANGE THE TYPICAL SITUATION NOW.

15 ASSUMING THIS BODY IS NOT A FRESH BODY BUT A

16 MUMMIFIED BODY THAT’S DRIED UP. THEN WOULD YOU EXPECT THE

17 ENTIRE BODY TO BE DRIED OUT, CORRECT?

18 A.: A BODY THAT IS DRIED OUT WOULD — IN ONE EXTREME

19 HAVE NO MOISTURE AT ALL, AND IF THAT WAS THE CASE THERE WOULD BE

20 NO ABILITY OF THE IMMATURE FLIES TO LIVE THERE BECAUSE THERE

21 WOULD BE NO MOISTURE. A BODY THAT IS PARTIALLY DRIED OUT CAN

22 HAVE AREAS WHERE THERE IS AMPLE MOISTURE FOR FLY DEVELOPMENT.

23 Q.: WHERE?

24 A.: IT CAN BE IN THE INSIDE OF THE SKULL. IT CAN BE IN

25 THE CHEST CAVITY. IT CAN BE —

26 Q.: HOW DO THEY GET THERE?

27 MR. FELDMAN: EXCUSE ME, THE WITNESS HADN’T FINISHED.

28 THE COURT: HE HADN’T FINISHED. 9128

1 YOU CAN CONCLUDE YOUR ANSWER, DOCTOR.

2 THE WITNESS: IT CAN BE IN THE ABDOMINAL AREA, THE

3 INTERNAL ORGANS. IT CAN BE IN THE MUSCLE THAT REMAINS MOIST.

4

5 BY MR. DUSEK:

6 Q.: HOW DO THEY GET INTO THOSE AREAS TO EXIST?

7 A.: THEY CAN GET IN THROUGH THE NATURAL OPENINGS OF THE

8 BODY, WHICH WOULD INCLUDE THE EYES, THE MOUTH, THE ANUS, THE

9 VAGINAL AREA, ET CETERA.

10 Q.: ARE YOU AWARE THAT THERE WAS NO MAGGOT ACTIVITY IN

11 THE BRAIN CAVITY IN THIS CASE, AREN’T YOU?

12 A.: I BELIEVE I READ THAT.

13 Q.: SO THEY DIDN’T GO IN THROUGH THE EYES, EARS, NOSE

14 AND THROAT TO GET UP IN THE HEAD, RIGHT?

15 A.: THEIR EVIDENTLY WAS LITTLE, IF ANY, MAGGOT ACTIVITY

16 IN THE HEAD AREA.

17 Q.: WHICH MEANS THEY DID NOT ENTER THAT AREA THROUGH

18 THE EYES, EARS, NOSE OR THROAT?

19 A.: I THINK THAT’S PROBABLY A FAIR INFERENCE.

20 Q.: AND IF A BODY IS DRYING OUT YOU WOULD EXPECT THOSE

21 OPENINGS TO LIKEWISE DRY OUT, WOULDN’T YOU?

22 A.: I THINK THAT WOULD BE REASONABLE.

23 Q.: NOW, THE OTHER AREAS YOU TALKED ABOUT, THERE MUST

24 BE AN OPENING TO THE BODY FOR THE FLIES TO GET THERE, CORRECT?

25 A.: AN OPENING TO THE BODY SUCH AS — SUCH AS THE ANAL

26 OPENING, VAGINAL OPENING.

27 Q.: AND IF YOUR BODY IS DRYING OUT SO THAT THE EYES,

28 EARS, NOSE AND THROAT ARE DRYING OUT SO THE FLIES DON’T GET IN 9129

1 THE BRAIN WOULD YOU EXPECT ALL OPENINGS TO DRY OUT AT THE SAME

2 RATE?

3 A.: I’M NOT SURE THAT’S A VALID ASSUMPTION.

4 Q.: THE ANAL AREA IS A MUCH TIGHTER AREA THAN THE EYES,

5 EARS, NOSE AND THROAT, ISN’T IT?

6 A.: WHEN YOU SAY A TIGHTER AREA, YOU MEAN BECAUSE OF

7 THE SPHINCTER?

8 Q.: JUST THE OPENING, YOUR EYES ARE WIDE OPEN, RIGHT?

9 A.: WELL, YOUR EARS HAVE A HOLE THAT YOU CAN FEEL.

10 Q.: AND THE NOSE IS WIDE OPEN, RIGHT?

11 A.: IT GOES INTO YOUR SINUSES, YES.

12 Q.: AND A MOUTH CAN BE WIDE OPEN, RIGHT?

13 A.: THAT’S CORRECT.

14 Q.: AND THE ANAL AREA OR GENITAL AREA ON A

15 SEVEN-YEAR-OLD CHILD IS TIGHT, ISN’T IT?

16 MR. FELDMAN: VAGUE AS TO TIGHT.

17 THE COURT: SUSTAINED.

18

19 BY MR. DUSEK:

20 Q.: IT CERTAINLY IS NOT AS ACCESSIBLE AS THE EYES,

21 EARS, NOSE AND THROAT, ISN’T IT?

22 A.: IT WOULDN’T BE AND THE SITUATION WHERE AN

23 INDIVIDUAL WAS CLOTHED, ABSENT THE PROTECTION OF CLOTHING,

24 THAT’S AN AREA THAT IS AVAILABLE FOR INGRESS BY FLIES.

25 Q.: THE CLOTHING THIS CHILD WOULD BE WEARING HAS NO

26 AFFECT ON HOW WIDE THAT OPENING IS, CORRECT?

27 MR. FELDMAN: VAGUE AS TO WHICH OPENING.

28 MR. DUSEK: THE RECTAL OPENING.

9130

1 THE COURT: SAME OPENING.

2 YOU MAY ANSWER, DOCTOR.

3 THE WITNESS: IN OTHER WORDS, WOULD IT MAKE A DIFFERENCE

4 IF AN INDIVIDUAL WAS CLOTHED OR UNCLOTHED? IS THAT THE SENSE OF

5 THE QUESTION? OR — I WANT TO MAKE SURE I UNDERSTAND IT

6 CORRECTLY.

7

8 BY MR. DUSEK:

9 Q.: THE GENITAL AND RECTAL OPENINGS ARE CLOSED, AREN’T

10 THEY? TIGHT TOGETHER SKIN TOUCHING AGAINST SKIN?

11 A.: OKAY.

12 Q.: WELL, OKAY, IS THAT RIGHT OR NOT?

13 A.: I GUESS IT COULD BE. IN THE SENSE OF BEING AN

14 AVENUE FOR FLY LARVAE TO CRAWL THROUGH, WHETHER THE SKIN IS

15 TOUCHING SKIN IS IRRELEVANT. THE FLY LARVAE CAN CRAWL RIGHT

16 THROUGH AND INTO THE INTERIOR OF THE BODY VERY EASILY.

17 Q.: IF IT IS FRESH AND MOIST?

18 A.: IF THERE’S MOISTURE THERE.

19 Q.: AND IF IT’S NOT FRESH AND MOIST AND DRIES OUT, THAT

20 MAKES IT TIGHTER, DOESN’T IT?

21 A.: IT COULD.

22 Q.: AND IT MAKES IT LESS APPEALING FOR THE FLIES,

23 CORRECT?

24 A.: AS I’LL COME BACK TO THE EARLIER EXAMPLE AND THE

25 ONE EXTREME, IF THE BODY IS COMPLETELY DRIED OUT THERE’S NOTHING

26 THERE TO ATTRACT THE FLIES.

27 Q.: WHEN YOU TALK ABOUT THAT YOU TALK ABOUT BEING DRIED

28 UP ON THE INSIDE, AREN’T YOU?

9131

1 A.: WHAT I’M TALKING ABOUT THE EXTREME, I’M TALKING

2 ABOUT BEING COMPLETELY DRIED OUT.

3 Q.: I’M JUST TALKING ABOUT THE BEGINNING OF

4 MUMMIFICATION WHERE THE EYES, NOSE AND THROAT DRY OUT, SO THE

5 FLIES DON’T WANT TO GO IN THERE. THAT’S ALL I’M TAKING ABOUT.

6 A.: OKAY.

7 Q.: THAT DRIES OUT THE SAME RATE AS THE ANAL AREA,

8 DOESN’T IT?

9 MR. FELDMAN: OBJECTION, IRRELEVANT.

10 THE COURT: OVERRULED.

11 YOU CAN ANSWER.

12 THE WITNESS: I’M NOT AWARE THAT IT HAS TO OCCUR AT THE

13 SAME PACE.

14

15 BY MR. DUSEK:

16 Q.: THE MAGGOTS THAT WERE FOUND IN THIS CASE WERE

17 WHERE?

18 A.: THE MAJORITY OF THE MAGGOTS, IF I CAN REMEMBER THE

19 REPORTS CORRECTLY, WERE FOUND IN THE ABDOMINAL AREA.

20 Q.: ACTUALLY, THE STOMACH REGION AND THE THORAX REGION,

21 WEREN’T THEY?

22 A.: IN THE INTERIOR OF THE BODY.

23 Q.: YOU ALSO SEE WHERE THIS CHILD HAD BEEN EXPOSED TO

24 ANIMAL ACTIVITY?

25 A.: THAT IS PART OF THE REPORTS, YES.

26 Q.: DO YOU ACCEPT THAT OR DO YOU REJECT THAT?

27 A.: I’M NOT A SPECIALIST IN ANIMAL DAMAGE.

28 Q.: SO ARE YOU TELLING US THEN THAT YOU ARE ACCEPTING 9132

1 THOSE FINDINGS BY OTHER PEOPLE BETTER QUALIFIED THAN YOU OR YOUR

2 OPINIONS HERE?

3 A.: AS FAR AS THE TESTIMONY OF THOSE PEOPLE WHO HAVE

4 EXAMINED ANIMAL DAMAGE ON DECEDENTS, YES.

5 Q.: SO THE FLIES AND LARVA, ALL THAT YOU ANALYZED CAME

6 FROM THE STOMACH REGION AND THORACIC REGION OF THIS CHILD,

7 RIGHT?

8 A.: THAT’S CORRECT.

9 Q.: AND YOU’RE ALSO INFORMED, AND BASED YOUR

10 CONCLUSIONS UPON, THAT REGION HAD BEEN ATTACKED BY ANIMALS,

11 RIGHT?

12 A.: THERE IS — IN THE REPORTS THAT I READ IT WAS

13 SUGGESTED THAT THERE HAD BEEN ANIMAL ACTIVITY IN THAT AREA.

14 Q.: DOESN’T THAT THEN INDICATE TO YOU THAT THE FLIES

15 ARRIVED ON THIS MUMMIFIED BODY AFTER AN ANIMAL HAD STARTED TO

16 EAT ON HER AND CAUSED TRAUMA?

17 A.: NOT NECESSARILY.

18 Q.: IS THAT ONE REALISTIC POSSIBILITY?

19 MR. FELDMAN: OBJECTION, CALLS FOR SPECULATION.

20 THE COURT: OVERRULED.

21 MR. FELDMAN: NO FOUNDATION.

22 THE COURT: OVERRULED.

23 THE WITNESS: I’VE NEVER SEEN A SITUATION WHERE THAT

24 OCCURRED.

25

26 BY MR. DUSEK:

27 Q.: YOU’VE NEVER — IN YOUR EXPERIENCE, YOU’VE NEVER

28 SEEN A BODY WHO’S BEEN ATTACKED BY AN ANIMAL? 9133

1 A.: I’VE NEVER SEEN A SITUATION WHERE IT WAS DOCUMENTED

2 THAT AN INDIVIDUAL HAD DRIED OUT SO QUICKLY THAT THE INSECT

3 ACTIVITY WAS THE PRODUCT OF A SUBSEQUENT OPENING BY A SCAVENGING

4 ANIMAL. I’M UNAWARE OF ANY CASE THAT WOULD BE SIMILAR TO THAT.

5 Q.: HOW MANY MURDER SCENES HAVE YOU BEEN TO?

6 A.: DOZEN.

7 Q.: ABOUT HOW MANY?

8 A.: I CAN’T QUOTE YOU ON AN ABSOLUTE FIGURE. AS I

9 SAID, I DO NOT KEEP A LIST.

10 Q.: THE TIME WHEN THE BODY’S STILL AT THE SCENE?

11 A.: NOT VERY MANY.

12 Q.: THAT’S WHAT I’M TALKING ABOUT. WHEN YOU GET TO SEE

13 THE BODY AT THE SCENE OF A MURDER, MURDER SCENE INVESTIGATION,

14 HOW MANY HAVE YOU BEEN TO?

15 A.: WHEN THE BODY IS STILL THERE, AS I SAID, NOT VERY

16 MANY.

17 Q.: WHICH MEANS?

18 A.: A COUPLE.

19 Q.: HAVE YOU SEEN WHERE THE BODY WAS AS MUMMIFIED AS

20 THIS CHILD?

21 A.: THE TERM MUMMIFICATION CONCERNS ME BECAUSE I’M NOT

22 REALLY SURE WHAT I’M REALLY RESPONDING TO.

23 Q.: LET ME CHANGE IT THEN.

24 MR. FELDMAN: YOUR HONOR, EXCUSE ME. THE WITNESS IS

25 TRYING TO ANSWER THE QUESTION. HE’S JUST INTERRUPTED.

26 THE COURT: NO. HE’S JUST INDICATED HE’S NOT SURE WHAT

27 WE’RE TALKING ABOUT.

28 GO AHEAD, MR. DUSEK. 9134

1 BY MR. DUSEK:

2 Q.: HOW MANY MURDER SCENES HAVE YOU BEEN TO WHERE THE

3 MURDER VICTIM IS IN THE CONDITION OF THIS CHILD, TAKING INTO

4 ACCOUNT THE CONDITIONS OF HER FINGERS, HER FEET, HER THORACIC

5 REGION AND THE CONDITION OF HER HEAD?

6 MR. FELDMAN: OBJECTION, COMPOUND.

7 THE COURT: OVERRULED.

8 THE WITNESS: I DON’T THINK I’VE SEEN A DECEDENT IN

9 EXACTLY THAT CONDITION.

10

11 BY MR. DUSEK:

12 Q.: HOW MANY MURDER SCENES HAVE YOU BEEN TO WHERE

13 COYOTES OR OUTDOOR ANIMALS ATTACK THE BODY BEFORE YOU GOT THERE

14 AND HAD A CHANCE TO EXAMINE THE BODY?

15 A.: I’M NOT SURE WHETHER THAT HAS EVER BEEN A

16 DEFINITIVE FACTOR IN THE PROCESSING OF THE SCENE.

17 Q.: I’M JUST LOOKING FOR A NUMBER.

18 HOW MANY TIMES HAVE YOU BEEN TO A HOMICIDE SCENE

19 WHERE THE BODY WAS THERE AND IT LOOKS LIKE IT’S BEEN ATTACKED BY

20 OUTDOOR ANIMALS?

21 A.: I CAN’T THINK OF ANY.

22 Q.: THE LOCATION OF THE MAGGOTS IN THIS CASE WERE IN

23 THE CHEWED OUT AREA OF THIS BODY, CORRECT?

24 MR. BOYCE: OBJECTION, ARGUMENTATIVE.

25 THE COURT: OVERRULED.

26 THE WITNESS: THAT’S WHAT THE REPORTS REFLECT, YES, SIR.

27

28 ///

9135

1 BY MR. DUSEK:

2 Q.: DO YOU ACCEPT THAT OR DO YOU REJECT THAT?

3 A.: THAT’S WHAT THE REPORTS SAY.

4 Q.: TRUE.

5 DO YOU ACCEPT THAT OR REJECT THAT BASED — WHEN YOU

6 COME TO YOUR CONCLUSION?

7 A.: THAT THAT’S WHERE THE MAGGOTS WERE?

8 Q.: THAT IT WAS A CHEWED OUT LOCATION.

9 A.: I’M NOT SURE WHETHER IT WAS A CHEWED OUT LOCATION

10 OR NOT. THE REPORTS REFLECT THAT FAULKNER COLLECTED THE MAGGOTS

11 FROM THE ABDOMINAL AREA, AND I’D HAVE TO LOOK AT THE TRANSCRIPT

12 AGAIN, PERHAPS FROM THE THORACIC AREA ALSO.

13 Q.: IF THE BODY IS DRY AND NOT APPEALING TO THE FLIES

14 WE WOULD NOT EXPECT THE FLIES TO LAY THEIR EGGS ON THE BODY,

15 WOULD WE?

16 A.: UNDER THAT FACT PATTERN THAT’S CORRECT.

17 Q.: IF WE THEN BRING IN AN ANIMAL TO EAT AT THE CHEST

18 REGION AND THORACIC REGION, OPENING UP THAT FLUID, THAT MUSCLE,

19 THOSE ORGANS, WOULD THAT AREA THEN BE RECEPTIVE TO YOUR FLIES?

20 A.: UNDER THE SITUATION WHERE YOU HAVE A — AN

21 ATTRACTIVE MEDIUM FOR FLIES, AND MAYBE I COULD CHARACTERIZE THAT

22 BEST AS A SITUATION WHERE YOU’D HAVE A DECEDENT INSIDE OF A

23 PLASTIC BAG — THE FLIES MIGHT VERY MUCH WANT TO GET TO THAT

24 DECEDENT BUT UNTIL THE INTEGRITY OF THE PLASTIC BAG IS CONCERNED

25 THEY CAN’T GET IN. AND IF THAT’S THE SENSE OF THE QUESTION,

26 THEN THE ANSWER IS YES.

27 Q.: I’LL TRY TO MAKE MY QUESTION AS SIMPLE AS POSSIBLE.

28 MR. FELDMAN: YOUR HONOR, THAT’S ARGUMENTATIVE. 9136

1 THE COURT: REPHRASE IT, MR. DUSEK.

2

3 BY MR. DUSEK:

4 Q.: IF WE HAVE A DRIED OUT BODY THAT’S NOT RECEPTIVE TO

5 FLIES — ARE YOU WITH ME THAT FAR?

6 A.: OKAY.

7 Q.: — OUTDOOR ANIMALS COME ALONG AND FIND THAT BODY

8 AND TAKE CHUNKS, BITES OUT OF THE THORACIC REGION AND ABDOMEN

9 REGION — ARE YOU WITH ME?

10 A.: YES.

11 Q.: — THAT WOULD THEN EAT UP THE ENTIRE ORGANS, FLUIDS

12 AND MUSCLES OF THAT BODY, WOULDN’T IT?

13 A.: UNDER THOSE FACTS, YES, IT WOULD.

14 Q.: AND WOULDN’T THAT THEN BECOME ATTRACTIVE TO YOUR

15 FLIES TO COME IN AND LAY THEIR EGGS?

16 A.: UNDER THOSE FACTS IT WOULD.

17 Q.: WHY?

18 A.: EXACTLY THE SAME EXPLANATION I GAVE A MOMENT AGO.

19 IF THE THEORY IS THAT THERE’S A BARRIER IN PLACE, SUCH AS A

20 PLASTIC BAG, AND THE INTEGRITY OF THAT BARRIER IS BROKEN, THEN

21 THE FLIES CAN GO THROUGH IT.

22 Q.: THE SITUATION I GAVE YOU, THE BARRIER WAS THE DRIED

23 SKIN, WASN’T IT?

24 A.: ANALOGOUS TO THE PLASTIC BAG.

25 Q.: I DON’T NEED ANALOGIES. I’M TALKING ABOUT REAL

26 THINGS.

27 MR. FELDMAN: YOUR HONOR, OBJECT, ARGUMENTATIVE —

28 THE COURT: OVERRULED.

9137

1 MR. FELDMAN: — AS TO WHAT COUNSEL NEEDS, OBJECTION.

2 THE COURT: OVERRULED.

3

4 BY MR. DUSEK:

5 Q.: YOUR DRY SKIN WOULD BE THE BARRIER IN THE SITUATION

6 I GAVE YOU, WOULDN’T IT?

7 A.: IN THE FACT PATTERN THAT YOU WERE REPRESENTING, THE

8 DRY SKIN I BELIEVE IS WHAT YOU CONSIDER TO BE THE BARRIER.

9 Q.: DON’T YOU?

10 A.: NO.

11 Q.: DRY SKIN WOULD NOT BE A BARRIER TO THIS DRIED OUT

12 BODY?

13 A.: I DON’T BELIEVE YOU CAN HAVE A SITUATION WHERE YOU

14 CAN HAVE MOIST INSIDE AND SO DRIED OUTSIDE THAT THE FLIES, WITH

15 WHICH I AM FAMILIAR, CANNOT FIND AWAY TO DEPOSIT THEIR EGGS THAT

16 WILL HATCH AND GIVE RISE TO THE LARVAE THAT WILL GET INSIDE THAT

17 BODY.

18 Q.: YOU DON’T SEE ANYTHING IN EXHIBIT 7 PHOTOGRAPHS “D”

19 AND “E” THAT WOULD INDICATE AN ATTRACTIVE LOCATION FOR FLIES TO

20 LAY THEIR EGGS?

21 A.: IN THOSE TWO PHOTOGRAPHS?

22 Q.: THOSE ARE THE TWO I SAID, YES.

23 A.: AND FOR A FLY TO LAY THE EGGS AT THE TIME THAT THAT

24 PHOTOGRAPH WAS TAKEN, IS THAT THE SENSE OF THE QUESTION?

25 Q.: NO. AT THE TIME THE BODY WAS OPEN BY ANIMAL

26 ACTIVITY — WELL, LET ME DO THIS.

27 YOU RECOGNIZE THAT THE CONDITION OF THESE

28 PHOTOGRAPHS WAS TAKEN WHEN THE BODY WAS AUTOPSIED, RIGHT?

9138

1 A.: THAT’S WHAT I INFER, YES, SIR.

2 Q.: AND THAT WOULD BE IN THE SAFE ENVIRONMENT OF THE

3 CORONER’S OFFICE, RIGHT?

4 A.: YES.

5 Q.: WHERE THERE’S NO COYOTES OR ANYTHING TO COME IN AND

6 DO DAMAGE TO THE BODY. LET’S ASSUME THE COYOTE ACTIVITY WAS

7 SOMETIME BEFORE THE AUTOPSY, ENOUGH TO ALLOW YOUR FLIES TO GET

8 THERE. THAT PART OF THE BODY WOULD STILL BE MOIST, AND MUSCLEY

9 WITH TISSUE IN THERE, WOULDN’T IT?

10 A.: THAT’S CORRECT.

11 Q.: RECEPTIVE TO FLIES?

12 A.: THAT’S CORRECT.

13 Q.: AND YOU HAVE NO WAY OF KNOWING HOW LONG THE BODY

14 WAS OUT THERE BEFORE THE ANIMALS GOT TO IT, DO YOU?

15 A.: I DON’T KNOW.

16 Q.: YOU TALKED ABOUT YOUR CRITICISM OF DR. GOFF. ONE

17 OF THE FACTORS I THINK WAS SOME MATHEMATICAL ERRORS YOU SAID HE

18 MADE?

19 A.: I FOUND A COUPLE OF ARITHMETIC ERRORS.

20 Q.: OKAY. HELP ME OUT.

21 THERE ARE TWO TERMS I’M CONCERNED WITH; MEDIAN AND

22 MEAN REGARDING NUMBERS. DO YOU KNOW WHICH ONE’S WHICH?

23 A.: AS FAR AS I KNOW, THE MEDIAN AND MEAN ARE

24 ESSENTIALLY SYNONYMOUS.

25 Q.: ISN’T THERE ONE WORD — MEDIA MEANS AVERAGE — I’M

26 SORRY — MEAN MEANS AVERAGE AND MEDIAN MEANS SIMPLY THE MIDPOINT

27 BETWEEN VARIOUS NUMBERS ABOVE AND BELOW?

28 A.: MEAN — THE MEAN — AND IT MAY NOT BE THE ANSWER, 9139

1 YOU KNOW, THE MEAN IS A VALUE THAT NEVER CAN BE KNOWN. THE

2 AVERAGE IS AN ESTIMATE OF THE MEAN. THE MEDIAN IS A — A MUCH

3 MORE AMORPHOUS TERM.

4 SOME OF THE ENTOMOLOGICAL DATA IN THIS AREA HAS

5 BEEN ACCUMULATED AS THE MODE. AND SO YOU CAN TALK ABOUT THE

6 MEAN, MEDIAN AND MODE. DOES THAT GET AT YOUR QUESTION?

7 Q.: NO.

8 A.: OKAY.

9 Q.: I’M TALKING ABOUT TWO TERMS WHEN WE DEAL WITH

10 NUMBERS. SAY, FOR INSTANCE, THE PRICE OF HOUSES IN AN AREA, HOW

11 MUCH THEY’RE SELLING FOR IN OUR NEIGHBORHOOD.

12 A.: OKAY.

13 Q.: THE REAL ESTATE PEOPLE TYPICALLY WILL GIVE YOU A

14 MEAN SALE PRICE, WHICH IS THE AVERAGE OF ALL THE HOUSES SOLD,

15 CORRECT?

16 A.: SURE.

17 Q.: THEY WILL ALSO GIVE YOU A MEDIAN OF THE SALE PRICE,

18 WHICH MEANS THAT’S RIGHT IN THE MIDDLE. HALF THE HOUSES SOLD

19 ABOVE THAT PRICE AND HALF THE HOUSES SOLD BELOW THAT PRICE?

20 A.: OKAY.

21 Q.: DOES THAT TERM MEAN SOMETHING TO YOU?

22 A.: IT DOES.

23 Q.: ALL RIGHT.

24 NOW YOU CRITICIZED LEE GOFF FOR MAKING MATHEMATICAL

25 ERRORS IN THIS CASE, CORRECT?

26 A.: I POINTED OUT A COUPLE OF ARITHMETIC ERRORS.

27 Q.: AND THE ERRORS YOU REFERRED TO CUMULATE TO

28 COMPUTATIONS HE MADE REGARDING DAILY TEMPERATURES; IS THAT

9140

1 CORRECT?

2 A.: THAT’S CORRECT.

3 Q.: DO YOU HAVE YOUR REPORT THERE WITH YOU?

4 A.: YES, I DO.

5 Q.: THE CRITICISM THAT YOU CAME UP WITH IS EXPRESSED ON

6 WHAT PAGE?

7 A.: I BELIEVE IT’S ON PAGE TWO.

8 Q.: AND YOU TALK THERE THAT HE DID MATHEMATICAL ERRORS

9 FOR CREATING THE AVERAGES ON FEBRUARY 26TH AND FEBRUARY 11TH,

10 CORRECT?

11 A.: THAT’S CORRECT.

12 Q.: SO YOU’RE SAYING THAT BASICALLY HE TOOK THE HIGHS

13 AND LOWS, ADDED THEM TOGETHER, DIVIDED BY TWO TO GET THE

14 AVERAGE?

15 A.: THAT’S CORRECT.

16 Q.: AND THAT IS WHAT WE HAVE REFERRED TO AS THE MEAN

17 TEMPERATURE OF THE DAY?

18 A.: THAT’S FAIR.

19 Q.: DO YOU HAVE HIS REPORT THERE IN FRONT OF YOU?

20 A.: NO, I DO NOT.

21 Q.: DID HE REFER TO THAT FINAL NUMBER AS THE MEAN OR

22 AVERAGE NUMBER?

23 A.: I DON’T HAVE THE REPORT.

24 Q.: LET ME SHOW YOU MY COPY. PAGE 13, 194 ON

25 DISCOVERY. IS IT PAGE NINE OF TEN ON THE FAX WHERE IT HAS ALL

26 THOSE COLUMN NUMBERS?

27 A.: IT SAYS MEDIA.

28 Q.: YOU THOUGHT HE MEANT MEAN, DIDN’T YOU?

9141

1 A.: THAT WAS MY INFERENCE.

2 Q.: WHAT DID HE LABEL THAT COLUMN?

3 A.: HE SAYS IT’S MEDIUM.

4 Q.: THAT’S A DIFFERENT COMPUTATION, ISN’T IT?

5 A.: IT COULD BE.

6 Q.: IT IS, ISN’T IT?

7 A.: IF YOU SAY THE NUMBER ABOVE AND NUMBER BELOW, IF I

8 UNDERSTAND, I GUESS IT COULD BE A DIFFERENT COMPUTATION.

9 Q.: AND WHEN YOU FOUND HIS SUPPOSEDLY ERROR IN

10 MATHEMATICS ON THIS CASE YOU INDICATED THAT WAS INATTENTION TO

11 DETAIL, DIDN’T YOU?

12 A.: THAT’S THE WAY I DESCRIBED IT.

13 Q.: IS HIS NUMBER CORRECT IF HE’S TELLING US THE

14 MEDIAN?

15 A.: I’M NOT REALLY SURE AT THIS POINT WHAT YOU MEAN BY

16 THE MEDIAN. I KNOW THAT WHEN I CALCULATED THE AVERAGE THAT IN

17 GOFF’S REPORT THOSE TWO DID NOT CALCULATE AS THE AVERAGE. ALL

18 THE REST DID.

19 Q.: YOU WROTE IN YOUR REPORT THAT DOCTOR SHOWED AN

20 INATTENTION TO DETAIL BECAUSE THIS AVERAGE IS WRONG, CORRECT?

21 MR. FELDMAN: MISSTATES THE REPORT. MISSTATES THE

22 EVIDENCE.

23 THE COURT: OVERRULED.

24 THE WITNESS: I SAID IT WAS INATTENTION TO DETAIL, THAT’S

25 CORRECT.

26

27 ///

28 MR. DUSEK:

9142

1 Q.: AND, IN FACT, HE WAS GIVING US THE MEDIAN NUMBER,

2 NOT THE MEAN NUMBER, CORRECT?

3 A.: MY TAKE ON IT WAS THAT IT WAS THE AVERAGE.

4 Q.: DID YOU ASK HIM?

5 A.: DID I ASK DR. GOFF? I DID NOT.

6 Q.: DID YOU COMPUTE IT TO DETERMINE IF IT WAS THE

7 CORRECT MEDIAN NUMBER?

8 A.: NO, I DID NOT.

9 Q.: YOU CRITICIZED HIM FOR USING DAILY TEMPERATURES AT

10 SINGING HILLS; IS THAT CORRECT?

11 A.: THE — WHEN YOU SAY FOR USING DAILY TEMPERATURES AT

12 SINGING HILLS, THAT’S WHAT WAS USED IN THE REPORT. THAT’S

13 CORRECT.

14 Q.: DID YOU CRITICIZE HIM FOR USING DAILY TEMPERATURES

15 AT SINGING HILLS?

16 A.: MY CRITICISM WAS THE USE OF DAILY MAXIMUM AND

17 MINIMUM TEMPERATURES TO ATTEMPT TO CALCULATE ACCUMULATED DEGREE

18 HOURS.

19 Q.: DID YOU CRITICIZE HIM FOR USING DAILY TEMPERATURES

20 AT SINGING HILLS?

21 MR. FELDMAN: ASKED AND ANSWERED.

22 THE COURT: OVERRULED. HE HASN’T ANSWERED IT.

23 THE WITNESS: TO MY KNOWLEDGE, THE ONLY TEMPERATURES

24 AVAILABLE FOR SINGING HILLS WERE DAILY MAXIMUM AND MINIMUM

25 TEMPERATURES.

26

27 ///

28 BY MR. DUSEK:

9143

1 Q.: AND THEN DID YOU THEN CRITICIZE HIM FOR USING THE

2 ONLY TEMPERATURES AVAILABLE?

3 A.: MY CRITICISM WAS THAT THOSE TEMPERATURES WERE USED

4 TO ATTEMPT TO CALCULATE ACCUMULATED DEGREE HOURS.

5 THE COURT: LET’S TRY THIS, DOCTOR.

6 READ BACK THE QUESTION. IT CALLS FOR A YES OR A

7 NO.

8 (RECORD READ)

9 THE WITNESS: NO.

10

11 BY MR. DUSEK:

12 Q.: WHAT DID YOU CRITICIZE HIM FOR?

13 MR. FELDMAN: ASKED AND ANSWERED.

14 THE COURT: OVERRULED.

15 THE WITNESS: I CRITICIZED HIM FOR USING DAILY MAXIMUM

16 AND MEAN — MAXIMUM AND MINIMUM TEMPERATURES TO CALCULATE

17 ACCUMULATED DEGREE HOURS.

18

19 BY MR. DUSEK:

20 Q.: HE USED THE ONLY TEMPERATURES AVAILABLE, DIDN’T HE?

21 A.: AS FAR AS I KNOW, YES.

22 Q.: DID YOU DO THE SAME THING?

23 A.: YES.

24 Q.: DID DAVID FAULKNER DO THE SAME THING?

25 A.: I DON’T KNOW.

26 Q.: HOW DID DAVID FAULKNER COMPILE HIS NUMBERS?

27 A.: I UNDERSTAND HE USED TEMPERATURES PERHAPS FROM

28 LINDBERG FIELD.

9144

1 Q.: YOU THINK LINDBERG FIELD?

2 A.: THAT’S THE INFORMATION THAT’S COME TO ME.

3 Q.: DO YOU FEEL THAT YOU TRIED TO EXERT A GREAT DEAL OF

4 ATTENTION TO DETAIL IN YOUR ASSESSMENT OF THIS CASE?

5 A.: WITHIN THE TIME I HAD TO SPEND ON IT I TRIED TO DO

6 THE BEST JOB I COULD.

7 Q.: HOW LONG HAVE YOU BEEN ON THIS CASE?

8 A.: THE FIRST CONTACT WAS I BELIEVE ON THE 19TH OF

9 JUNE.

10 Q.: YOU’VE HAD A MONTH AND A HALF?

11 A.: A MONTH AND A HALF I GUESS APPROXIMATELY SINCE THE

12 FIRST CONTACT. I DIDN’T GET ANY TEMPERATURE DATA OR REPORTS

13 UNTIL THEY HAD BEEN MADE AVAILABLE.

14 Q.: WHEN WAS THAT?

15 A.: STARTING A COUPLE WEEKS AGO.

16 Q.: LET ME SHOW YOU A COPY OF DAVID FAULKNER’S REPORT

17 WHERE HE LISTS HIS TEMPERATURES. WERE YOU PROVIDED THAT

18 DOCUMENT?

19 MR. FELDMAN: YOUR HONOR, THAT QUESTION MISSTATES THE

20 EVIDENCE. IT’S NOT A REPORT. IT’S NOT A REPORT, JUDGE. IT

21 ASSUMES FACTS NOT IN EVIDENCE.

22 THE COURT: HE JUST SIMPLY ASKED HIM IF HE WAS GIVEN

23 THIS. HE CAN ANSWER THAT YES OR NO.

24 THE WITNESS: NO, I HAVE NOT SEEN THIS.

25

26 BY MR. DUSEK:

27 Q.: THAT WAS NOT — THESE NOTES FROM DAVID FAULKNER

28 WERE NOT REPORTED TO YOU?

9145

1 A.: NO.

2 Q.: WHERE DID YOU GET THE INFORMATION THAT HE USED

3 LINDBERG FIELD?

4 A.: THAT WAS — EITHER STICKS IN MY MEMORY FROM THE

5 TRIAL TRANSCRIPT OR FROM SOMETHING ELSE I’VE READ.

6 Q.: WHERE YOU READ IT IN THE TRIAL TRANSCRIPT IT WAS

7 FROM NEAL HASKELL, WASN’T IT?

8 A.: I CAN’T REMEMBER.

9 Q.: DO YOU RECALL THEN NEAL HASKELL BEING SHOWN A

10 DOCUMENT THAT INDICATED DAVID FAULKNER USED DATA FROM SOMEPLACE

11 OTHER THAN LINDBERG FIELD?

12 A.: I HONESTLY CANNOT REMEMBER.

13 Q.: HOW DO YOU KNOW HOW DAVID FAULKNER COMPUTED HIS

14 DATA?

15 A.: I DON’T KNOW.

16 Q.: HOW DO YOU KNOW — DO YOU KNOW WHETHER OR NOT HE

17 DID IT ACCURATELY?

18 A.: I DIDN’T SEE ANY OF HIS COMPUTATIONS AND THEREFORE

19 I CAN’T COMMENT.

20 Q.: YOU WERE NOT SHOWN ANY COMPUTATIONS OR DATA OR

21 ROUGH NOTES FROM DAVID FAULKNER?

22 A.: NO.

23 Q.: YOU DID MAKE COMPUTATIONS AT SINGING HILLS?

24 A.: YES, I DID.

25 Q.: BASED UPON WHAT DATA?

26 A.: BASED UPON DATA THAT WERE PROVIDED TO ME IN AMONGST

27 A SERIES OF TEMPERATURE DATA. I DON’T HAVE THEM IN FRONT OF ME

28 RIGHT NOW.
9146

1 Q.: WHERE ARE THEY?

2 A.: IN A PILE OF DOCUMENTS THAT I’VE BROUGHT WITH ME.

3 Q.: ALL RIGHT.

4 WHEN DID YOU COME TO SAN DIEGO IN THIS CASE?

5 A.: YESTERDAY.

6 Q.: WHEN DID YOU GO TO SINGING HILLS?

7 A.: YESTERDAY EVENING.

8 Q.: AT NIGHT?

9 A.: NO.

10 Q.: EVENING MEANS WHAT TIME?

11 A.: OH, BETWEEN 5:00 AND 6:00 I GUESS.

12 Q.: THE DATA FROM SINGING HILLS HAD TEMPERATURES HOURLY

13 OR HIGHS AND LOWS FOR THE DAY?

14 A.: THEY HAD HIGHS AND LOWS FOR THE DAY.

15 Q.: DID YOU EVER RECEIVE ANY DATA OF HOURLY

16 TEMPERATURES FROM SINGING HILLS?

17 A.: NO.

18 Q.: DID YOU USE THAT INFORMATION TO COMPUTE YOUR

19 P.M.I.S FOR SINGING HILLS?

20 A.: I USED THE INFORMATION THAT I HAD, WHICH WERE THE

21 DAILY HIGHS AND LOWS.

22 Q.: TO COMPUTE THE P.M.I. FROM SINGING HILLS?

23 A.: THAT WAS OF THE CALCULATIONS I MADE, YES, SIR.

24 Q.: DID YOU ALSO USE DATA FROM BROWN FIELD?

25 A.: YES, I DID.

26 Q.: WHEN YOU USED THE SINGING HILLS DATA DID YOU USE

27 THE SAME METHOD AS LEE GOFF?

28 A.: NO, I DID NOT.

9147

1 Q.: WHAT DID YOU DO DIFFERENTLY?

2 A.: I CALCULATED ACCUMULATED DEGREE DAYS RATHER THAN

3 ACCUMULATED DEGREE HOURS.

4 Q.: AND FOR SINGING HILLS DATA WHAT WAS YOUR TIME

5 PERIOD?

6 A.: IT WAS ESSENTIALLY WHAT I’VE GIVEN YOU. ARE YOU

7 TALKING ABOUT THE ESTIMATE THAT I’VE MADE? THE TIME PERIOD?

8 Q.: AND BY THAT WE MEAN THE ESTIMATED INSECT P.M.I.; IS

9 THAT CORRECT? YES?

10 A.: THAT WOULD BE 12 TO 23 FEBRUARY.

11 Q.: WHEN YOU USED THE NUMBERS FROM BROWN FIELD YOU HAD

12 HOURLY OR DAILY TEMPERATURES NOW?

13 A.: BOTH WERE LISTED.

14 Q.: WHAT DID YOU USE?

15 A.: I USED THE DAILY AVERAGES.

16 Q.: THE DAILY AVERAGES?

17 A.: YES.

18 Q.: MEANS WHAT?

19 A.: I USED THE INFORMATION IN HASKELL’S REPORT AND THE

20 ACCUMULATION OF TEMPERATURE THAT WAS PART OF HIS REPORT THAT

21 WHERE HE HAD CALCULATED ACCUMULATED DEGREE HOURS FOR THIS

22 INTERVAL OF TIME IN FEBRUARY FROM THE BROWN FIELD WEATHER

23 STATION. AND AS PART OF THIS REPORT THERE WAS A DAILY AVERAGE

24 THAT WAS REPORTED. THAT WAS THE FIGURE THAT I USED.

25 Q.: DOES THAT MEAN THE AVERAGE FOR THE HIGH AND LOW FOR

26 ANY SPECIFIC DATA?

27 A.: IT WAS REPORTED AS THE DAILY AVERAGE.

28 Q.: I’M TRYING TO FIND OUT WHAT THAT MEANS. 9148

1 DOES THAT MEAN YOU TAKE THE HIGH FOR THE DAY, LOW

2 FOR THE DAY AND FIGURE THE AVERAGE OF THOSE TWO TEMPERATURES?

3 A.: THAT’S THE WAY IT’S CHARACTERISTICALLY DONE, YES,

4 SIR.

5 Q.: WHY DIDN’T YOU NEED THE HOUR LIST?

6 A.: I DIDN’T USE THE HOUR LIST.

7 Q.: ISN’T IT BETTER TO USE THE HOUR LIST?

8 A.: IT WOULD BE BETTER TO USE THE HOUR LIST IF YOU HAD

9 HOUR LIST TO COMPARE. I WAS INTERESTED IN COMPARING THE RESULT

10 THAT WAS OBTAINED FROM BROWN FIELD WITH THE RESULT THAT WAS

11 OBTAINED FROM SINGING HILLS. BROWN FIELD WAS ANALYZED BY

12 HASKELL AS ACCUMULATED DEGREE HOURS. WHEN I ANALYZED THE

13 SINGING HILLS, I ANALYZED IT AS ACCUMULATED DEGREE DAYS. AND I

14 THEREFORE ANALYZED BROWN FIELD AS ACCUMULATED DEGREE DAYS ALSO.

15 Q.: DIDN’T YOU WANT TO USE THE BEST METHODS TO COME UP

16 WITH THIS MINIMUM P.M.I. PERIOD ON THE DAY THAT YOU HAD

17 AVAILABLE?

18 A.: OF COURSE I WANTED TO USE THE BEST METHOD.

19 Q.: AND THE BEST METHOD WOULD BE TO USE THE HOURLY

20 TEMPERATURES AT BROWN FIELD, WOULDN’T IT?

21 A.: NOT NECESSARILY.

22 Q.: DIDN’T YOU JUST CRITICIZE DR. LEE GOFF FOR USING

23 THE HIGHS AND LOWS AND THE AVERAGES?

24 MR. FELDMAN: THAT MISSTATES THE EVIDENCE, YOUR HONOR.

25 THE COURT: OVERRULED.

26 THE WITNESS: WHAT I CRITICIZED DR. GOFF FOR DOING WAS TO

27 MAKE AN UNWARRANTED CALCULATION OF ACCUMULATED DEGREE HOURS FROM

28 DAILY, MAXIMUM AND MINIMUM TEMPERATURES. THAT WAS MY CRITICISM.

9149

1 BY MR. DUSEK:

2 Q.: YOU HAD THE MEANS TO LOOK AT ALL OF THE HOURLY

3 TEMPERATURES AT BROWN FIELD, DIDN’T YOU?

4 A.: THEY WERE ALL LISTED AS PART OF HASKELL’S REPORT.

5 Q.: AND TO HAVE THAT INFORMATION AVAILABLE ARE YOU

6 SKILLED ENOUGH TO TAKE THAT INFORMATION AND COME UP WITH THE

7 BEST ESTIMATE OF YOUR MINIMUM P.M.I.? DO YOU KNOW HOW TO DO

8 THAT?

9 MR. FELDMAN: OBJECTION, MULTIPLE QUESTIONS, COMPOUND.

10 THE COURT: OVERRULED.

11 THE WITNESS: THAT’S WHAT I HAVE TRIED TO DO.

12

13 BY MR. DUSEK:

14 Q.: DIDN’T YOU JUST TELL US THAT YOU TOOK THE HIGH AND

15 LOW FROM BROWN FIELD AND DID AN AVERAGE?

16 A.: I CALCULATED THE ACCUMULATED DEGREE DAYS BASED ON

17 THE DAILY AVERAGE.

18 Q.: BUT YOU HAD THE HOURLY TEMPERATURES SO YOU COULD

19 COMPUTE THEM EVERY HOUR, COULDN’T YOU?

20 A.: YOU COULD DO THAT IF YOU CHOSE.

21 Q.: AND THAT WOULD BE THE BEST METHOD TO GIVE US THE

22 MINIMUM P.M.I., WOULDN’T IT?

23 A.: NOT NECESSARILY.

24 Q.: DON’T YOU AS AN ENTOMOLOGIST WANT THE HOURLY

25 TEMPERATURES?

26 A.: IF YOU HAVE A SITUATION WHERE YOU HAVE THE HOURLY

27 TEMPERATURES AND YOU HAVE DEVELOPED A CONCORDANCE BETWEEN THE

28 TEMPERATURE SITE, IN THIS CASE BROWN FIELD, AND THE SITE WHERE 9150

1 THE DECOMPOSITION OCCURRED, AND YOU WISH TO MAKE A CONCORDANCE

2 AND YOU WISH TO COMPUTE ACCUMULATED DEGREE HOURS WOULD NEED TO

3 RELY ON A WEATHER SITE THAT GENERATED HOURLY DATA.

4 MY INTEREST IN THE BROWN FIELD DATA WAS TO

5 DETERMINE HOW ANALYZING THAT DATA WOULD COMPORT WITH WHAT I SAW

6 WITH THESE SINGING HILLS DATA, AND I THEREFORE ANALYZED THEM THE

7 SAME WAY.

8 Q.: LET’S ASSUME WE WOULD LIKE TO KNOW THE MOST

9 ACCURATE MINIMUM P.M.I. PERIOD. WOULDN’T YOU USE THE HOURLY

10 TEMPERATURES THAT YOU WERE PROVIDED?

11 MR. FELDMAN: ASKED AND ANSWERED.

12 THE COURT: OVERRULED.

13 THE WITNESS: NOT NECESSARILY.

14

15 BY MR. DUSEK:

16 Q.: WHY WOULDN’T YOU?

17 MR. FELDMAN: ASKED AND ANSWERED.

18 THE COURT: THAT’S BEEN ANSWERED.

19

20 BY MR. DUSEK:

21 Q.: DID YOU USE THE HOURLY TEMPERATURES?

22 MR. FELDMAN: ASKED AND ANSWERED.

23 THE COURT: SUSTAINED.

24

25 BY MR. DUSEK:

26 Q.: WHEN YOU GO TO A SCENE DO YOU ASK — OR WHEN YOU’RE

27 ASKED TO MAKE COMPUTATIONS, DO YOU ASK TO GIVE ME THE HOURLY

28 TEMPERATURES IF THEY ARE AVAILABLE? 9151

1 A.: I ASK FOR THE WEATHER INFORMATION THAT IS

2 AVAILABLE, YES.

3 Q.: DON’T YOU WANT THE BEST WEATHER INFORMATION

4 AVAILABLE?

5 A.: I ALWAYS TRY TO GET THE MOST COMPLETE DATA THAT I

6 CAN.

7 Q.: THE MOST COMPLETE DATA WOULD BE THE HOURLY

8 TEMPERATURES, WOULDN’T THEY?

9 A.: UNDER THE CONDITIONS OF MOST WEATHER RECORDING

10 STATIONS THAT’S ABOUT THE MOST COMPLETE YOU COULD GET WOULD BE

11 HOUR, YES, SIR.

12 Q.: HOW CAN THEY BE MORE COMPLETE?

13 A.: I’VE HAD GRADUATE STUDENTS TAKE THEM BY THE MINUTE.

14 Q.: IN A REAL LIFE SITUATION?

15 A.: AS I —

16 Q.: THE HOUR LIST ARE GOING TO BE THE BEST, AREN’T

17 THEY?

18 A.: THE HOUR LIST ARE GOING TO BE THE MOST COMPLETE.

19 Q.: WHICH WOULD GIVE US THE BEST ANSWER AT THE END OF

20 THE COMPUTATION, RIGHT?

21 A.: NOT NECESSARILY.

22 Q.: WEREN’T YOU SIMPLY ASKED TO FIND WAYS TO CRITICIZE

23 LEE GOFF?

24 A.: NO, SIR.

25 MR. BOYCE: OBJECTION, ARGUMENTATIVE.

26 THE COURT: OVERRULED. THE ANSWER WAS NO. IT WILL

27 STAND.

28 ///

9152

1 BY MR. DUSEK:

2 Q.: AND WEREN’T YOU ASKED TO TRY TO FIND AGREEMENT WITH

3 NEAL HASKELL?

4 MR. BOYCE: OBJECTION, ARGUMENTATIVE.

5 THE COURT: OVERRULED.

6 YOU MAY ANSWER.

7 THE WITNESS: NO, SIR.

8

9 BY MR. DUSEK:

10 Q.: YOUR ENDING TIME DISAGREES WITH NEAL HASKELL; IS

11 THAT CORRECT?

12 A.: YES, IT DOES.

13 Q.: YOUR BEGINNING TIME DISAGREES WITH NEAL HASKELL?

14 A.: YES, IT DOES.

15 Q.: I THINK YOU TOLD US THAT YOU TOOK INTO ACCOUNT

16 THREE EXPERIMENTAL STUDIES REGARDING TEMPERATURES FOR FLY

17 DEVELOPMENT. DO WE HAVE THE PHRASE RIGHT?

18 A.: THAT’S CORRECT.

19 Q.: THOSE PEOPLE ARE?

20 A.: ONE STUDY WAS DONE BY KAMAL, ANOTHER WAS DONE BY

21 GREENBURG, ANOTHER WAS DONE BY ANDERSON.

22 Q.: WHY ARE THERE THREE OF THEM IN THE FIELD?

23 A.: WELL, THOSE ARE THREE THAT ARE AVAILABLE TO THE

24 SCIENTIFIC COMMUNITY RIGHT NOW.

25 Q.: DO THEY PROVIDE DIFFERENT DATA?

26 A.: WHEN YOU SAY — DO THEY PROVIDE DIFFERENT DATA,

27 THEY PROVIDE — THEY PROVIDE INFORMATION ON THE DEVELOPMENT OF

28 CERTAIN SPECIES OF FLIES. 9153

1 Q.: DON’T THEY PROVIDE DIFFERENT TEMPERATURES TO JUDGE

2 THE DEVELOPMENT RATE OF FLIES?

3 A.: THEY PROVIDE — THEY PROVIDE DATA ON THE

4 DEVELOPMENT OF FLIES AT VARIOUS TEMPERATURES.

5 Q.: ALL RIGHT.

6 AND THEY’RE ACCEPTED IN THE FIELD OF ENTOMOLOGY,

7 AREN’T THEY?

8 A.: ALL THREE STUDIES HAVE BEEN PUBLISHED, YES, SIR.

9 Q.: ARE THEY ACCEPTED IN THE FIELD OF ENTOMOLOGY?

10 A.: YES.

11 Q.: AND YOU RELIED UPON THEM IN THIS CASE, DIDN’T YOU?

12 A.: YES.

13 Q.: KAMAL USES A TEMPERATURE — IS THAT A HE OR SHE?

14 A.: IT’S A HE.

15 Q.: DR. KAMAL, DO YOU REMEMBER —

16 A.: I’M NOT SURE.

17 Q.: — MR. KAMAL. HE DID HIS STUDIES BACK IN THE 50’S

18 SOMETIME?

19 A.: THE PUBLICATION DATE I BELIEVE WAS IN ’58.

20 Q.: AND HIS TEMPERATURE THAT HE TESTED THESE AT WAS

21 WHAT?

22 A.: I’D HAVE TO LOOK AT THE STUDY. I BELIEVE IT WAS

23 SOMEWHERE AROUND 80 DEGREES FAHRENHEIT. I CAN’T QUOTE TO YOU

24 THE EXACT TEMPERATURE.

25 Q.: AND BASICALLY WHAT WE USE THAT NUMBER FOR IS IF THE

26 AVERAGE TEMPERATURE DURING THE DAY IS 80 DEGREES, THEN WE CAN

27 DETERMINE HOW FAST THESE FLIES DEVELOP; IS THAT RIGHT?

28 A.: I’M NOT SURE I UNDERSTAND THE SENSE OF YOUR 9154

1 QUESTION.

2 Q.: THE STUDY BASICALLY TELLS US HOW FAST FLIES DEVELOP

3 AT 80 DEGREES?

4 A.: THAT’S CORRECT.

5 Q.: AND THEN WE USE THAT SCALE THAT HE CAME UP WITH TO

6 SEE HOW LONG IT TAKES THE VARIOUS STAGES TO DEVELOP AND GIVE US

7 A P.M.I. OR A DATE OF FLIGHT — EGGS BEING LAID ON THE BODY,

8 RIGHT?

9 A.: THAT’S A GENERAL CONCEPT, YES.

10 Q.: FOR KAMAL, WOULD YOU PUT THE DEGREES FOR US THERE?

11 I’M GOING TO ASK YOU FOR THE NUMBERS OF THE OTHERS. I HAVE ON

12 THE BOARD A BLANK PIECE OF PAPER THAT I’VE WRITTEN IN IN BLACK

13 KAMAL, P. SSERICATA, BOTTLE FLY AT THE TOP, P. REGINA.

14 THE COURT: IT WILL BE MARKED 198 FOR IDENTIFICATION.

15 (MARKED FOR ID: = PEO’S EX. 198, DIAGRAM )

16 BY MR. DUSEK:

17 Q.: WRITE 198 IN THE LOWER RIGHT HAND CORNER, SIR.

18 A.: (WITNESS COMPLYING.)

19 Q.: KAMAL USED 80 DEGREES; IS THAT CORRECT?

20 A.: ABOUT 80 DEGREES.

21 Q.: ALL RIGHT.

22 IF YOU WOULD WRITE THAT IN FOR US, PLEASE?

23 A.: UNDER BOTH OF THESE?

24 Q.: WELL, DID HE USE THE SAME TEMPERATURE BY BOTH

25 FLIES?

26 A.: (WITNESS INDICATING ON DIAGRAM.)

27 Q.: DID HE USE 80 DEGREES FOR BOTH FLIES BASED UPON

28 YOUR EXPERIENCE IN THE FIELD? 9155

1 A.: AS I REMEMBER HIS STUDY HE REARED EVERYTHING UNDER

2 THE SAME TEMPERATURE, SO THE ANSWER WOULD BE YES, AS FAR AS I

3 CAN REMEMBER.

4 Q.: JUST SO HOPEFULLY I HAVE THIS CHART MADE UP

5 ORIGINALLY CORRECT, P. SERICATA, IS THAT A TYPE OF FLY?

6 A.: PHAENICIA SERICATA IS A TYPE OF BLOW FLY, YES, SIR.

7 Q.: BLOW FLY OR BOTTLE FLY?

8 A.: THE TERMS ARE REALLY SYNONYMOUS.

9 Q.: P. REGINA OR REGINA, WHAT’S THAT?

10 A.: THAT IS A BLOW FLY OR BOTTLE FLY ALSO.

11 Q.: DO THEY DEVELOP AT DIFFERENT RATES?

12 A.: YES.

13 Q.: THOSE ARE THE FLIES THAT YOU USED IN THIS CASE TO

14 COME TO YOUR NUMBERS, CORRECT?

15 A.: THAT’S CORRECT.

16 Q.: GREENBURG ALSO DID A STUDY IN THIS AREA, DIDN’T HE?

17 A.: YES, HE DID.

18 Q.: AND DID HE COME UP WITH DIFFERENT TEMPERATURES, SO

19 THEY’VE GOT DIFFERENT RATES OF DEVELOPMENT?

20 A.: YES, HE DID.

21 Q.: WHAT DID HE COME UP WITH THE “P” SERICATA?

22 A.: I’D HAVE TO LOOK AT GREENBURG’S STUDY TO REFRESH MY

23 MEMORY AS TO WHICH TEMPERATURES HE USED.

24 Q.: LET ME HELP YOU OUT HERE.

25 A.: FOR THOSE TWO PARTICULAR SPECIES OF FLIES HE USED

26 TWO DIFFERENT TEMPERATURES, ONE IS 22 DEGREES CENTIGRADE, ONE IS

27 29 DEGREES CENTIGRADE.

28 Q.: UNDER GREENBURG WOULD YOU WRITE 22 AND 29? NOW, 9156

1 CAN YOU CONVERT THAT TO FAHRENHEIT FOR US?

2 A.: NO, NOT WITHOUT MY CALCULATOR.

3 Q.: DO YOU HAVE IT WITH YOU AROUND HERE?

4 A.: I DON’T.

5 Q.: 22 ABOUT 71 DEGREES?

6 A.: I’LL TAKE YOUR WORD FOR IT.

7 Q.: COULD YOU WRITE IT IN THERE?

8 A.: (WITNESS COMPLYING.)

9 Q.: AND ISN’T 29 ABOUT 84 DEGREES?

10 A.: (WITNESS COMPLYING.)

11 Q.: NOW, IF WE UNDERSTAND THE CONCEPT CORRECTLY,

12 GREENBURG FOUND SOME FLIES, SET THE TEMPERATURE AT 22 DEGREES

13 CENTIGRADE AND WATCH THEM DEVELOP?

14 A.: THAT’S CORRECT.

15 Q.: HAVE YOU AND HE MEASURED HOW LONG IT TOOK EACH

16 STAGE TO DEVELOP?

17 A.: THAT’S CORRECT.

18 Q.: HE DID THE SAME THING AT 29 DEGREES?

19 A.: YES.

20 Q.: WAS THERE A DIFFERENCE IN HOW QUICKLY THEY

21 DEVELOPED?

22 A.: YES.

23 Q.: HOW SO?

24 A.: IF YOU REMEMBER SOME EARLIER COMMENTS ABOUT THE WAY

25 THAT COLD BLOOD ANIMALS DEVELOPED, GIVEN THE BIOLOGICAL, CLEARLY

26 THEIR TEMPERATURES ARE TOO HOT, CLEARLY SOME TOO COLD. BUT WITH

27 THE BIOLOGICAL S-LINE CURVED, IN THE STRAIGHT PORTION OF THAT

28 WITHIN REASON THE WARMER IT IS THE MORE QUICKLY AN INSECT WILL 9157

1 DEVELOP. SO DEVELOPMENT TIME WILL BE SHORTER AT HIGHER

2 TEMPERATURES, EVERYTHING ELSE BEING EQUAL.

3 Q.: SO THE WARMER THE TEMPERATURE THE FASTER THEY

4 DEVELOP?

5 A.: WITHIN LIMITS, YES, SIR.

6 Q.: ANDERSON ALSO DID A SIMILAR STUDY?

7 A.: YES, SHE DID.

8 Q.: AND USED DIFFERENT TEMPERATURES?

9 A.: AS I RECALL, YES.

10 Q.: DO YOU RECALL WHAT THEY ARE?

11 A.: NO, I DON’T.

12 Q.: I’LL GIVE YOU A COPY.

13 WHAT TEMPERATURES DID SHE USE?

14 A.: FOR PHORMIA REGINA SHE HAD TWO TEMPERATURES THAT I

15 SEE HERE IN THIS ONE TABLE. 16.1 DEGREES CENTIGRADE AND 23

16 DEGREES CENTIGRADE.

17 Q.: COULD YOU WRITE THAT IN UNDER THE P. REGINA COLUMN

18 ON THE RIGHT HAND SIDE?

19 A.: (WITNESS COMPLYING.)

20 Q.: WHAT DOES 16.1 DEGREES CENTIGRADE EQUATE TO?

21 A.: WITHOUT MY CALCULATOR I WOULDN’T WANT TO TRY TO

22 QUOTE IT.

23 Q.: DO YOU HAVE A BALLPARK ESTIMATE OF WHAT IT IS?

24 A.: WELL, IT’S GOING TO BE OBVIOUSLY LOWER THAN 22, SO

25 IT MIGHT BE IN THE 60, BUT WITHOUT A CALCULATOR I WOULDN’T WANT

26 TO TRY TO GIVE YOU ERRONEOUS INFORMATION TO MAKE THE CONVERSION.

27 Q.: HOW ABOUT P. SERICATA, WERE TEMPERATURES USED IN

28 THAT ONE?

9158

1 A.: YES. SHE REPORTS 15.8, 20.7 AND 23.7.

2 Q.: COULD YOU LIST THOSE FOR US UNDERNEATH ANDERSON?

3 A.: (WITNESS COMPLYING.)

4 Q.: ARE YOU ABLE TO GIVE US THE FAHRENHEIT EQUIVALENT

5 OF THOSE?

6 A.: NO, SIR.

7 Q.: BASICALLY, ANDERSON FOUND THAT THE FLIES DEVELOPED

8 TWICE AS FAST AT THE HIGHER TEMPERATURE AS OPPOSED TO THE LOWER

9 TEMPERATURE, DIDN’T SHE? THAT’S USING THE 15.8 AND THE 20.7?

10 A.: JUST FROM SCANNING THE DATA, I’D SAY ROUGHLY THAT’S

11 ABOUT RIGHT.

12 Q.: SO THAT WOULD MAKE IT CRUCIAL FOR SOMEONE IN YOUR

13 FIELD TO PICK THE APPROPRIATE TEMPERATURE WHEN MAKING YOUR

14 CALCULATIONS, DO YOU AGREE?

15 A.: IN OTHER WORDS, IS THE SENSE OF YOUR QUESTION THAT

16 TO APPLY ANY OF THESE DATA IT WOULD BE NECESSARY TO GO TO THE

17 STUDY THAT COMES CLOSEST TO THE TEMPERATURE AT THE TEMPERATURE

18 THAT YOU’RE INTERESTED IN? IS THAT — THAT THE SENSE OF YOUR

19 QUESTION?

20 Q.: HOW DID YOU PICK WHICH TEMPERATURE TO USE?

21 A.: FROM THE SENSE OF WHICH STUDY TO USE?

22 Q.: HOW DO YOU PICK WHICH OF THOSE TEMPERATURES TO USE

23 WHEN YOU MAKE YOUR CALCULATIONS?

24 MR. FELDMAN: YOUR HONOR, VAGUE AS TO WHICH TEMPERATURE,

25 THE STUDIES OR THE SINGING HILLS?

26 THE COURT: PICK IT OUT. LET’S GET SPECIFIC, MR. DUSEK.

27 ///

28 ///

9159

1 BY MR. DUSEK:

2 Q.: YOU TOLD US THAT YOU USED KAMAL, GREENBURG,

3 ANDERSON WHEN YOU MADE YOUR CALCULATION; IS THAT CORRECT?

4 A.: THAT’S CORRECT.

5 Q.: WE HAVE ONE TEMPERATURE FOR KAMAL, FOR HER — FOR

6 HIM, ABOUT 80. WE HAVE TWO OPTIONS UNDER GREENBURG, CORRECT?

7 A.: THAT’S CORRECT.

8 Q.: AND WE HAVE THREE OPTIONS UNDER ANDERSON, CORRECT?

9 A.: THAT’S CORRECT.

10 Q.: YOU SAID YOU USED THESE NUMBERS AND THIS DATA IN

11 MAKING YOUR COMPUTATIONS, RIGHT?

12 A.: THAT’S CORRECT.

13 Q.: IN FACT, YOU INCLUDED THOSE NAMES IN YOUR REPORT,

14 CORRECT?

15 A.: THAT’S RIGHT.

16 Q.: WHICH TEMPERATURES DID YOU USE?

17 A.: I USED ALL OF THEM.

18 Q.: SO YOU MADE A SEPARATE CALCULATION FOR 80 DEGREES?

19 A.: THE CALCULATION FOR 80 DEGREES IS REFLECTED IN

20 KAMAL’S DATA.

21 Q.: WHEN YOU USE A TEMPERATURE DON’T YOU PICK ONE

22 TEMPERATURE, GO TO THE CHART AND SEE HOW FAST EACH OF THE STAGES

23 DEVELOP AT THAT TEMPERATURE? ISN’T THAT WHAT YOU DO?

24 A.: WHAT YOU DO WITH THE TEMPERATURE IS TO CALCULATE

25 THE NUMBER OF EITHER DEGREE HOURS OR DEGREE DAYS THAT IT TAKES

26 FOR THE INSECT TO DEVELOP.

27 Q.: AND YOU’RE GOING TO GET DIFFERENT CALCULATIONS

28 BASED UPON WHICH ONE OF THOSE TEMPERATURES YOU USED; IS THAT 9160

1 CORRECT?

2 A.: THAT’S CORRECT.

3 Q.: SO YOU HAVE TO PICK THE TEMPERATURE THAT MOST

4 CLOSELY APPROXIMATES THE AVERAGE TEMPERATURE YOU HAVE AT OUR

5 SITE, CORRECT?

6 A.: NO, THAT’S NOT CORRECT.

7 Q.: YOU GET TO PICK ANY ONE YOU WANT.

8 A.: YES. YOU CAN WORK WITH ANY OF THEM.

9 Q.: SO THE DATA IS GOING TO BE THE SAME WHETHER YOU USE

10 THE DEVELOPMENTAL RATE AT 80 DEGREES AS IF YOU’D USE A

11 DEVELOPMENTAL RATE AT 60 DEGREES?

12 A.: FUNDAMENTALLY,

13 Q.: DIDN’T YOU JUST TELL US THAT THEY DEVELOP TWICE AS

14 FAST AT 20 DEGREES CELSIUS AS 15.8 DEGREES?

15 A.: THAT’S WHAT THE DATA REFLECT.

16 Q.: THAT’S THE DATA THAT YOU RELY UPON IN YOUR FIELD,

17 DON’T YOU?

18 A.: THE SITUATION IS THAT YOU WILL TAKE THE

19 DEVELOPMENTAL RATE EXPRESSED AS EITHER ACCUMULATED DEGREE HOURS

20 OR DEGREE DAYS AND THE VARIABILITY WITH RESPECT TO WHETHER OR

21 NOT THOSE DATA ARE ACCUMULATED AT 80 DEGREES FAHRENHEIT OR 50

22 DEGREES FAHRENHEIT. THE COMMONLY DENOMINATOR IS THE NUMBER OF

23 ACCUMULATED DEGREE DAYS OR DEGREE HOURS THAT IT TAKES FOR THE

24 INSECT THROUGH ITS VARIOUS STAGES OF DEVELOPMENT.

25 WHETHER OR NOT THE AMBIENT THAT YOU’RE WORRIED

26 ABOUT IS 60 DEGREES OR 80 DEGREES, THE NUMBER OF ACCUMULATED

27 DEGREE HOURS OR DEGREE DAYS, THERMAL UNITS IS WHAT I’LL USE,

28 REMAINS CONSISTENT SO THAT YOU DON’T HAVE TO GO AND FIND A STUDY 9161

1 THAT WAS DONE AT THE PRECISE OR AS CLOSE TO THE TEMPERATURE AT

2 THE CRIME SCENE AS POSSIBLE.

3 WHAT YOU’RE DOING IS TAKING LABORATORY DATA ON

4 INSECT DEVELOPMENT AND PUTTING IT INTO A FORM THAT YOU CAN

5 GENERALIZE WITH RESPECT TO THE NUMBER OF THERMAL UNITS. THAT’S

6 THE CONCEPT.

7 Q.: IF THAT WERE TRUE THEN, SIR, THEN THERE WOULD BE NO

8 REASON FOR GREENBURG TO DO A DIFFERENT STUDY OF DIFFERENT

9 TEMPERATURES THAN KAMAL, CORRECT?

10 A.: OH, NOT AT ALL.

11 Q.: WHY WOULD GREENBURG NEED TO DO TESTS DECIDING HOW

12 QUICKLY THESE INSECTS DEVELOP AT THESE LOWER TEMPERATURES AS

13 OPPOSED TO KAMAL?

14 A.: TEMPERATURE AND DEGREE ARE USED IN SCIENCE ALL THE

15 TIME.

16 Q.: WHY DID THEY PICK DIFFERENT TEMPERATURES?

17 A.: I’LL GIVE YOU AN EXAMPLE. I DID MANY STUDIES AT

18 MANY YEARS FOR A PARTICULAR TEMPERATURE BECAUSE IN MY LABORATORY

19 I HAD A REARING CABINET. IN MISSOURI AT THAT TIME WE DIDN’T

20 HAVE A WHOLE LOT OF MONEY AT THAT TIME BUT MY REARING CABINET

21 WAS VERY PRIMITIVE. IT HELD A STEADY TEMPERATURE VERY WELL.

22 BUT THAT WAS DONE BECAUSE I HEAT IT WITH LIGHT BULBS, AND I

23 FOUND THAT IT WOULD MAINTAIN A PARTICULAR TEMPERATURE. AND SO I

24 DID ALL OF MY STUDIES AT THAT TEMPERATURE.

25 IF I HAD HAD ANOTHER LABORATORY WITH DIFFERENT

26 EQUIPMENT, I MIGHT HAVE BEEN ABLE TO MAINTAIN OTHER TEMPERATURES

27 AND I MIGHT HAVE CHOSEN TO USE THOSE. BUT THE CHOICE OF

28 TEMPERATURES IS TYPICALLY ONE THAT IS EQUIPMENT SENSITIVE RATHER 9162

1 THAN RESPONSE TO A QUESTION ABOUT WHAT WOULD HAPPEN IF WE HAD

2 THE DEVELOPMENT AT 15 DEGREES LOWER. I HOPE THAT MAKES SENSE

3 BUT IT TYPICALLY IS A FUNCTIONING EQUIPMENT.

4 Q.: ISN’T THE REASON GAIL ANDERSON DID HER STUDIES AT

5 LOWER TEMPERATURES IS BECAUSE WHERE SHE IS IN BRITISH COLUMBIA

6 HER FLIES AND HER BODIES ARE SEEN AT LOWER TEMPERATURES THAN

7 KAMAL’S STUDIES TESTED AT 80 DEGREES?

8 A.: ALL THESE STUDIES — ONE OF THE POINTS OF INTEREST

9 WOULD BE WHETHER THERE ARE MATERIAL DIFFERENCES IN RATES OF

10 DEVELOPMENT, COMPARATIVE RATES OF DEVELOPMENT AT LOW VERSUS HIGH

11 TEMPERATURE.

12 Q.: AND THEY HAVE FOUND THAT THERE IS, HAVEN’T THEY?

13 A.: AS I JUST FINISHED SAYING, EVERYTHING ELSE BEING

14 EQUAL, IN THAT AREA OF THE DEVELOPMENTAL CURVE FOR COLD BLOOD

15 ANIMALS, AS THINGS GET RELATIVELY HOTTER, TEMPERATURE PROCEEDS

16 FASTER. SO YOU IF YOU HAVE A STUDY THAT IS DONE AT A LOW

17 TEMPERATURE, AND A STUDY THAT IS DONE AT A HIGHER TEMPERATURE,

18 USING THE SAME KIND OF INSECT, IT IS REASONABLE THAT THE INSECT

19 WILL DEVELOP FASTER AT HIGHER TEMPERATURES.

20 Q.: SO IF WE USE KAMAL’S NUMBERS AT 80 DEGREES, THOSE

21 LITTLE GUYS ARE GOING TO DEVELOP A LOT FASTER THAN IF WE USE

22 ANDERSON’S NUMBERS AT 15.8 DEGREES CENTIGRADE, RIGHT?

23 A.: THAT IS CORRECT.

24 Q.: HOW MUCH FASTER?

25 A.: THEY CAN DEVELOP MEASURABLY FASTER.

26 Q.: AND WHEN YOU MAKE YOUR CALCULATIONS, BASICALLY WHAT

27 YOU’RE MEASURING AND TRYING TO DETERMINE IS HOW LONG DO THESE

28 FLIES STAY AT THE EGG STAGE? 9163

1 A.: THAT’S RIGHT.

2 Q.: AND AT THE FIRST INSTAR STAGE?

3 A.: YES.

4 Q.: SECOND INSTAR STAGE AND THIRD INSTAR STAGE,

5 CORRECT?

6 A.: THAT’S CORRECT.

7 Q.: AND THEY STAY AT THOSE STAGES DIFFERENT LENGTHS OF

8 TIME DEPENDING UPON THE TEMPERATURE, CORRECT?

9 A.: THAT’S CORRECT.

10 Q.: AND KAMAL MADE A STUDY OF HOW LONG THEY STAY AT THE

11 FIRST STAGE AT 80 DEGREES?

12 A.: ABOUT 80 DEGREES.

13 Q.: AND ANDERSON MADE ANOTHER STUDY WHERE THEY STAY AT

14 THE FIRST STAGE AT 15.8 DEGREES?

15 A.: YES.

16 Q.: THERE ARE DIFFERENT NUMBERS, RIGHT.

17 A.: YES, BECAUSE THEY’RE DIFFERENT TEMPERATURES.

18 Q.: AND WHEN YOU’RE MAKING YOUR CALCULATIONS YOU’RE

19 TRYING TO ESTIMATE FOR US, BASED UPON THE TEMPERATURES, HOW LONG

20 THESE FLIES AND THEIR EGGS STAYED AT THE VARIOUS LEVELS BEFORE

21 THEY MOVED ON AT THAT TEMPERATURE, RIGHT?

22 A.: THAT’S CORRECT.

23 Q.: SO TO GET THE MOST ACCURATE ESTIMATION OF HOW LONG
24 THEY’RE AT EACH STAGE YOU’D WANT TO USE THE DATA FROM THE

25 CLOSEST TIME PERIOD OR CLOSER TEMPERATURE, WOULDN’T YOU?

26 A.: NOT NECESSARILY.

27 Q.: WHY NOT?

28 A.: BECAUSE IT DOESN’T REALLY MAKE ANY DIFFERENCE. 9164

1 WHAT YOU’RE ACCUMULATING ARE THERMAL UNITS. YOU’RE NOT

2 MEASURING THE DEVELOPMENT OF A FLY AT A PARTICULAR STATIC

3 TEMPERATURE THAT IS SUPPOSED TO MIMIC THE TEMPERATURE THAT HAS

4 OCCURRED AT WHERE A DECEDENT MIGHT HAVE DECOMPOSED.

5 WHAT YOU’RE DEVELOPING IS A SCIENTIFIC DATA SET

6 THAT WILL ALLOW ONE TO CALCULATE THE NUMBER OF THERMAL UNITS,

7 WHETHER YOU ACCUMULATE THOSE IN DEGREES FAHRENHEIT OR CENTIGRADE

8 IS IMMATERIAL. IF YOU ACCUMULATE THEM AS ACCUMULATED DEGREE

9 HOURS, THAT OBVIOUSLY CAN LEND SOME ADDITIONAL PRECISION BECAUSE

10 THERE ARE 24 HOURS IN EACH DAY.

11 YOU CAN ALSO ACCUMULATE THEM AS ACCUMULATED DEGREE

12 DAYS AND THE NUMBER OF THERMAL UNITS THAT IT REQUIRES FOR A

13 PARTICULAR SPECIES TO GO THROUGH IS REMARKABLY CONSTANT NO

14 MATTER WHAT THE AMBIENT TEMPERATURE IS.

15 AS AN EXAMPLE, SOME OF THE MOST SOPHISTICATED DATA

16 IN THIS SORT OF CALCULATION WOULD BE ON ALFALFA WEEVIL. AND

17 ALFALFA WEEVIL IS THE SORT OF INSECT THAT FARMERS WANT TO KNOW

18 WHEN IT’S GOING TO COME OUT AND SPRAY BECAUSE IT COSTS THEM

19 MONEY. AT LEAST IN MY AREA IT DOES. AND I HAVE STUDIES THAT

20 HAVE BEEN DONE ON ALFALFA WEEVIL JUST AS THESE STUDIES HAVE BEEN

21 DONE ON BLOW FLIES WILL ALLOW ENTOMOLOGISTS TO CALCULATE HOW

22 WARM IT’S GOT TO BE BEFORE ALFALFA WEEVIL COMES OUT IN THE

23 SPRING. AND IF YOU KNOW THAT NUMBER YOU CAN GET READY TO SPRAY

24 YOUR FIELDS BEFORE DAMAGE IS DONE.

25 AND IT REALLY DOESN’T MATTER WHAT THE TEMPERATURE

26 IS THAT THE STUDY HAS BEEN — MANY STUDIES HAVE BEEN CONDUCTED,

27 AS LONG AS YOU KNOW HOW MANY ACCUMULATED DEGREE DAYS OR DEGREE

28 HOURS OVER A PARTICULAR BASE IT’S GONNA REQUIRE FOR ALFALFA

9165

1 WEEVIL TO COME OUT IN THE SPRING. AND ENTOMOLOGISTS CAN PREDICT

2 THAT AND SAY WE NEED TO SPRAY ON APRIL 15TH.

3 IT’S EXACTLY THE SAME CONCEPT HERE. SO THE FACT

4 THAT THESE STUDIES WERE DONE AT DIFFERENT TEMPERATURES IS REALLY

5 NOT GERMANE TO THE ISSUE AS TO HOW THEY’RE USED TO CALCULATE THE

6 DEVELOPMENT GRADE OF THESE FLIES USING ACCUMULATED THERMAL

7 UNITS. THAT’S THE BEST EXPLANATION I CAN GIVE, SIR.

8 Q.: THANK YOU.

9 IN YOUR REPORT, DIDN’T YOU MAKE STATEMENTS IN YOUR

10 REPORT REGARDING YOUR FINDINGS BASED UPON THE DATA ON KAMAL?

11 A.: YES. I TOOK KAMAL INTO CONSIDERATION, YES, SIR.

12 Q.: BACK EVEN IN YOUR REPORT YOU GIVE US TIME PERIODS

13 BASED UPON KAMAL’S DATA, DON’T YOU?

14 A.: THAT’S CORRECT.

15 Q.: AND DO YOU THEN GIVE US DATA BASED UPON GREENBURG’S

16 DATA?

17 A.: THAT’S CORRECT.

18 Q.: SEPARATE COMPUTATIONS BASED UPON GREENBURG’S DATA,

19 RIGHT?

20 A.: THAT’S CORRECT.

21 Q.: AND YOU ALSO GIVE US SEPARATE CONCLUSIONS BASED

22 UPON ANDERSON’S DATA?

23 A.: THAT’S CORRECT.

24 Q.: WHICH TEMPERATURE DID YOU USE ON GREENBURG WHEN YOU

25 MADE HIS COMPUTATIONS?

26 A.: I USED THE ACCUMULATED DEGREE DAYS THAT CAME FROM

27 BOTH BROWN FIELD AND SINGING HILLS, I BELIEVE I REMEMBER THAT

28 RIGHT.

9166

1 Q.: ONCE YOU GET THAT, THEN DON’T YOU HAVE TO FACTOR IN

2 DEVELOPMENTAL SPEED AT 22 CENTIGRADE OR 29 CENTIGRADE?

3 A.: THOSE ARE BOTH PARTS OF THE CALCULATION OF THE

4 ACCUMULATED DEGREE DAYS OR DEGREE HOURS, YES, SIR.

5 Q.: DON’T YOU HAVE TO MAKE ONE CALCULATION UNDER 22 AND

6 ANOTHER UNDER 29?

7 A.: YES, I DID.

8 Q.: SO YOU DID ONE CALCULATION UNDER 22?

9 A.: YES, YES.

10 Q.: AND CAME TO A NUMBER?

11 A.: YES.

12 Q.: AND YOU MADE A CALCULATION UNDER 29 AND CAME TO

13 ANOTHER NUMBER?

14 A.: YES.

15 Q.: YOU DID BOTH?

16 A.: THAT’S RIGHT.
17 Q.: AND LIKEWISE, UNDER ANDERSON WE HAVE THREE

18 POSSIBILITIES THERE. DID YOU MAKE A CALCULATION UNDER EACH OF

19 THOSE THREE TEMPERATURE SCALES?

20 A.: I’D HAVE TO LOOK AT MY NOTES.

21 Q.: PERHAPS NOW WOULD BE A GOOD TIME FOR A BREAK, YOUR

22 HONOR? I WANT HIM TO LOOK FOR THE NOTES.

23 THE COURT: ALL RIGHT.

24 LADIES AND GENTLEMEN, WE’LL GO AHEAD AND TAKE THE

25 LUNCH BREAK. PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO

26 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR

27 WITH OTHERS, NOR FORM OR EXPRESS ANY OPINIONS ON THE CASE UNTIL

28 IT IS SUBMITTED TO YOU. 9167

1 PLEASE BE OUTSIDE THE DOOR AT 1:30. HAVE A

2 PLEASANT LUNCH.

3

4

5 (AT 11:57 A.M. THE NOON RECESS WAS
TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)
6

7 –O0O–

02081 - august 2nd 2002 -Transcript of David Westerfield Trial Day 27 - morning 1
01083 - august 1st 2002 -Transcript of David Westerfield Trial Day 26 - afternoon 1