01084 – august 1st 2002 -Transcript of David Westerfield Trial Day 26 – afternoon 2

TRIAL Day 26- Part 4 – afternoon 2


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


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


9199

1 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN.

2 ALL RIGHT. MR. FELDMAN.

3 MR. FELDMAN: THANK YOU.

4 THE COURT: OH, INCIDENTALLY, BAD NEWS. FOUR RUN LEADING

5 INTO THE 8TH AND WE DIDN’T MAKE IT.

6 ANYWAY, MR. FELDMAN.

7 MR. FELDMAN: I WAS AFRAID TO ASK.

8

9 REDIRECT EXAMINATION +

10 BY MR. FELDMAN:

11 Q.: SIR, YOU WERE QUESTIONED BY MR. DUSEK CONCERNING

12 ARITHMETIC ERRORS OF DR. GOFF WITH REGARD TO HIS CALCULATIONS

13 AND SOME OF THE DISAGREEMENTS YOU HAD WITH DR. GOFF.

14 IS IT FAIR TO SAY THAT IN PARTICULAR YOUR VIEW —

15 WHAT YOU WROTE IN TOTAL AS OPPOSED TO TAKING OUT OF CONTEXT WAS,

16 QUOTE, “UPON REVIEW OF DR. GOFF’S CALCULATIONS I NOTED SEVERAL

17 ERRORS IN ARITHMETIC. IN PARTICULAR, THE DAILY AVERAGES FOR 26

18 FEBRUARY AND 11 FEBRUARY WERE WRONG. THE DAILY AVERAGE FOR 26

19 FEBRUARY WAS 61.6, NOT 59 AS DR. GOFF CALCULATED, AND THE

20 AVERAGE FOR 11 FEBRUARY WAS 54 FAHRENHEIT, NOT 59 FAHRENHEIT AS

21 DR. GOFF CALCULATED. THIS SUGGESTS INATTENTION TO DETAIL.”

22 THAT’S THE COMPLETE PARAGRAPH, IS THAT RIGHT, SIR?

23 A.: YES, SIR.

24 Q.: IN ADDITION, YOU WERE IN DISAGREEMENT WITH THE

25 MANNER IN WHICH GOFF WAS USING MAX — MINIMUM TEMPERATURES TO

26 CALCULATE ACCUMULATED DEGREE HOURS, IS THAT RIGHT?

27 A.: YES, SIR.

28 Q.: WHAT YOU INDICATED WAS THAT BY CALCULATING A DAILY 9200

1 AVERAGE TEMPERATURE — LET ME START AGAIN.

2 WHAT YOU WROTE WAS CALCULATING A DAILY AVERAGE

3 TEMPERATURE CONVERTING, IF NECESSARY, TO CENTIGRADE UNITS,

4 SUBTRACTING THE BASE DEVELOPMENTAL TEMPERATURE AND MULTIPLYING

5 BY 24 TO PRODUCE A.D.H. ASSUMES THE TEMPERATURES FLUCTUATE

6 UNIFORMLY ABOUT THE MEAN AS A SIGN CURVE. THIS ASSUMPTION IS

7 INVALID. A.D.H. ARE CALCULATED VALIDLY ONLY FROM HOURLY

8 TEMPERATURE DATA. DR. GOFF USED DAILY MAXIMUM AND MINIMUM

9 TEMPERATURES FROM SINGING HILLS WHICH IS ADJACENT TO THE BODY

10 RECOVERY SITE, CORRECT?

11 A.: YES, SIR.

12 Q.: NOW, THERE IS IN YOUR PROFESSIONAL COMMUNITY AN

13 AGREEMENT AS TO THE MANNER IN WHICH A.D.H. OUGHT TO BE

14 CALCULATED, ISN’T THAT RIGHT?

15 A.: ENTOMOLOGISTS HAVE GONE OVER THIS AND I BELIEVE

16 THAT MOST ENTOMOLOGISTS ARE IN AGREEMENT AS TO HOW THAT SHOULD

17 BE DONE, YES, SIR.

18 Q.: BUT DR. GOFF APPARENTLY UTILIZED A METHOD THAT’S

19 INCONSISTENT WITH THOSE OF MOST ENTOMOLOGISTS, AS YOU PUT IT?

20 A.: YES, SIR, IN MY OPINION.

21 Q.: MR. DUSEK ASKED YOU WHETHER YOU WERE “PALS” I THINK

22 WAS HIS WORD WITH DR. HASKELL.

23 SIR, YOU’VE ACTUALLY BEEN CONSULTED BY THE

24 PROSECUTION IN A NUMBER OF CASES, IS THAT RIGHT?

25 A.: YES, SIR.

26 Q.: YOU’VE ALSO BE CONSULTED BY THE DEFENSE IN SOME

27 CASES, IS THAT RIGHT?

28 A.: THAT’S CORRECT. 9201

1 Q.: IN THOSE CASES FROM TIME TO TIME YOU’RE ON THE

2 OTHER SIDE OF THE ISLE WITH DR. HASKELL, ISN’T THAT RIGHT?

3 A.: YES, SIR.

4 Q.: WITH REGARD TO MR. FAULKNER, THERE HAVE BEEN

5 CIRCUMSTANCES WHERE FAULKNER AND HASKELL FOR THAT MATTER MIGHT

6 HAVE BEEN ON ONE SIDE AND YOU WERE ON THE OTHER, IS THAT RIGHT?

7 A.: YES, SIR.

8 Q.: WITH REGARD TO YOUR PROFESSIONAL OPINION OF MR.

9 FAULKNER, IS HE A COMPETENT INSECT COLLECTOR?

10 A.: HE CERTAINLY IS.

11 Q.: WITH REGARD TO DR. HASKELL, IS HE A COMPETENT

12 PROFESSIONAL?

13 A.: YES, HE IS.

14 Q.: YOU SAID TO MR. DUSEK THAT USING ALL OF THE STUDIES

15 THERE WAS A — I THINK YOU SAID A REMARKABLE CONCORDANCE WITH

16 REGARD TO THE CONCLUSIONS OF ALL OF THE EXPERTS IN THIS CASE.

17 WHAT DID YOU MEAN WHEN YOU SAID A REMARKABLE

18 CONCORDANCE OF ALL THE EXPERTS?

19 A.: GIVEN THE INTRINSIC VARIABILITY OF THIS SORT OF

20 BIOLOGICAL DATA, THE CHART IS NO LONGER UP THERE BUT THE —

21 Q.: DO YOU WANT THE CHART?

22 A.: WELL —

23 Q.: THIS IS 199. DO YOU WANT 199?

24 A.: LET ME JUST SAY THAT — THAT — YEAH, LET’S PIN IT

25 BACK UP THERE.

26 Q.: OKAY.

27 A.: LOOKING — WHEN I SAY CONCORDANCE WITH RESPECT TO

28 THE TEMPERATURE SET AND THESE TWO SPECIES OF FLIES THAT WE HAVE 9202

1 THE PERIOD OF TIME REFLECTED IN THE THIRD INSTAR BY KAMAL AND

2 GREENBURG BETWEEN THE 23RD AND STARTING ON THE 14TH OR THE 16TH

3 TO THE 23RD, AND THEN GREENBURG’S DATA AT AROUND THE 16TH TO THE

4 21ST TO GET INTO THE THIRD INSTAR, AND ANDERSON AT LEAST ON

5 PHAENICIA SERICATA THE ENDING THE THIRD INSTAR ON THE 22ND TO

6 THE 23RD, IN MY OPINION GIVEN THIS SORT OF BIOLOGICAL DATA IS

7 GOOD CONCORDANCE.

8 Q.: SO, IN OTHER WORDS, THE FACT THAT EVEN DR. GOFF PUT

9 THE EARLIEST DATE FOR OVIPOSITION AT THE 9TH AND, ALTHOUGH YOU

10 PUT I THINK AT THE LATEST DATE THE 23RD, YOU SEE THAT AS A

11 CONCORDANCE, RELATIVE AGREEMENT BASED UPON THE DATA, IS THAT

12 RIGHT?

13 A.: YES, I DO.

14 MR. DUSEK: OBJECTION, MISSTATES THE TESTIMONY OF GOFF AS

15 THE 4TH.

16 THE COURT: SUSTAINED AS TO THE PREMISE. REPHRASE THE

17 QUESTION.

18

19 BY MR. FELDMAN:

20 Q.: YOU REVIEWED THE TESTIMONY OF DR. GOFF, DIDN’T YOU?

21 A.: YES, I DID.

22 Q.: YOU SAW THAT HE TESTIFIED THAT AT 23 DEGREES AT

23 SINGING HILLS I THINK THAT HIS POSTMORTEM INTERVAL COULD BE AS

24 EARLY AS THE 9TH, DO YOU RECALL THAT?

25 A.: I BELIEVE SO.

26 Q.: NOW, LET’S TRY IT AGAIN.

27 WITH REGARD TO THE CONCLUSIONS OF DR. GOFF, DR.

28 HASKELL, MR. FAULKNER, BRIAN BLACKBOURNE, CYRIL WECHT, FIVE 9203

1 DIFFERENT EXPERTS, WECHT AND BLACKBOURNE, BEING THE FORENSIC

2 PATHOLOGISTS, YOU SEE THAT TEN DAYS FROM THE DATE OF AUTOPSY IS

3 WITHIN YOUR RANGE OF POTENTIAL OVIPOSITION, IS THAT RIGHT?

4 MR. DUSEK: OBJECTION, YOUR HONOR. CYRIL WECHT DID NOT

5 TESTIFY FOR THE TRUTH.

6 THE COURT: OVERRULED. HIS STATEMENTS HAVE BEEN UTILIZED

7 IN THE TRIAL.

8 YOU MAY ANSWER THE QUESTION, DOCTOR.

9 MR. FELDMAN: THANK YOU.

10 Q.: I’M ASKING YOU — LET ME TRY AGAIN.

11 YOU SAID EARLIER THAT YOU WOULD WANT INFORMATION

12 INPUT FROM FORENSIC PATHOLOGISTS —

13 A.: THAT’S CORRECT.

14 Q.: — TO ASSIST IN DETERMINING THE POSTMORTEM INTERVAL

15 WITH REGARD TO DECOMPOSITION ISSUES, IS THAT RIGHT, SIR?

16 A.: THAT’S RIGHT.

17 Q.: WITH REGARD — YOU’RE AWARE, BASED ON YOUR REVIEW

18 OF THE TRANSCRIPTS AND THE INFORMATION PROVIDED, THAT BRIAN

19 BLACKBOURNE, THE FORENSIC PATHOLOGIST, GAVE US A WINDOW OF AS

20 EARLY AS TEN DAYS FROM DATE OF AUTOPSY. I THINK BLACKBOURNE

21 SAID SIX WEEKS.

22 YOU’RE AWARE THAT ANOTHER FORENSIC PATHOLOGIST WHO

23 WAS CONSULTED BY THE DEFENSE, THE INFORMATION WAS PROVIDED TO

24 THE PROSECUTION, THE PROSECUTION THEN PROVIDED THAT INFORMATION

25 TO A WITNESS THAT DR. WECHT ESTIMATED A POSSIBLE POSTMORTEM

26 INTERVAL OF TEN DAYS UP TO FOUR WEEKS. YOU’RE AWARE OF THAT?

27 A.: YES.

28 Q.: YOU’RE AWARE THAT DR. GOFF AGREED THAT THE 9204

1 POSSIBILITY AT 23 DEGREES AT SINGING HILLS COULD HAVE BEEN

2 OVIPOSITION AS EARLY AS THE 9TH. YOU’RE AWARE OF THAT, IS THAT

3 RIGHT?

4 A.: YES.

5 Q.: YOU’RE AWARE THAT MR. FAULKNER PUT THE APPROXIMATE

6 TIME, I THINK IT’S 16 TO 18 IF I’M REMEMBERING CORRECTLY,

7 FEBRUARY, IS THAT RIGHT? THIS MIGHT BE HELPFUL.

8 A.: OKAY.

9 Q.: YOU’RE AWARE MR. FAULKNER SAID 16 TO 18, RIGHT,

10 SIR?

11 A.: YES.

12 Q.: YOU’RE AWARE MR. HASKELL SAID 14 TO 21?

13 A.: YES.

14 Q.: EVEN MR. GOFF PUSHED IT UP TO THE 12TH, YOU’RE

15 AWARE OF THAT, HUH?

16 A.: UM-HMM.

17 Q.: YOU’RE AWARE THAT GOFF PUT BROWN FIELD AT 16

18 DEGREES CENTIGRADE. LET ME WITHDRAW THAT.

19 YOU’RE ALSO AWARE THAT DR. GOFF CONCLUDED THAT

20 BROWN FIELD WAS THE BEST PLACE OF ALL THE DATA THAT WAS PROVIDED

21 TO UTILIZE THE WEATHER INFORMATION. YOU’RE AWARE OF THAT?

22 A.: YES, I AM.

23 Q.: DO YOU AGREE WITH THAT OPINION?

24 A.: NOT NECESSARILY IN THAT SINGING HILLS IS CLOSE TO

25 THE SITE, AND BECAUSE THERE WAS NO TEST DONE TO DETERMINE THE

26 CONCORDANCE BETWEEN THESE VARIOUS WEATHER STATIONS, THE SINGING

27 HILLS WEATHER DATA HAS, IN MY OPINION, THE ADVANTAGE OF BEING

28 TAKEN CLOSER TO WHERE THE DECEDENT WAS FOUND. 9205

1 Q.: EVEN THOUGH WE HAVE QUESTIONS AS TO THE ACCURACY OF

2 THE INFORMATION?

3 A.: THERMOMETERS, UNLESS THEY’RE DAMAGED AND DON’T WORK

4 AT ALL, THERMOMETERS, EVEN THOUGH THEY MAY BE INEXPENSIVE,

5 THEY’RE REMARKABLY ACCURATE.

6 Q.: SO YOU’RE AWARE THAT WE HAVE GOFF AT SINGING HILLS

7 UP TO THE 12TH, GOFF AT BROWN FIELD BETWEEN THE 9TH AND THE 14TH

8 AT 16 DEGREES C. AND UP TO THE 14TH AT 23 DEGREES C. AND WE’VE

9 GOT YOU OVERPOSITING AT THE EARLIEST FEBRUARY 12TH AND AT THE

10 LATEST FEBRUARY 23, IS THAT RIGHT?

11 A.: THAT’S CORRECT.

12 Q.: NOW, THAT’S ALL THE ENTOMOLOGISTS PLUS ALL THE

13 PATHOLOGISTS IN THE CASE AGREEING THAT OVIPOSITION, OR TIME OF

14 DEATH, BOTH COULD HAVE OCCURRED BETWEEN THE 9TH AND THE 23RD OF

15 FEBRUARY, IS THAT RIGHT?

16 A.: THAT WOULD BE THE CONCLUSION, YES.

17 Q.: THAT’S A PRETTY REMARKABLE CONCORDANCE BETWEEN THE

18 PROFESSIONAL FORENSIC PATHOLOGISTS.

19 MR. DUSEK: OBJECTION, ARGUMENTATIVE.

20 THE COURT: YOU’RE NOT ARGUING THE QUESTION YET, MR.

21 FELDMAN. ASK THE QUESTION.

22

23 BY MR. FELDMAN:

24 Q.: IS THAT IN YOUR VIEW AN UNUSUAL CONCORDANCE OF

25 CONSOLIDATED OPINIONS BETWEEN PROFESSIONAL DISCIPLINES SUCH AS

26 FORENSIC ENTOMOLOGY AND FORENSIC PATHOLOGY?

27 MR. DUSEK: OBJECTION, NO FOUNDATION, ARGUMENTATIVE,

28 IRRELEVANT. 9206

1 THE COURT: AS PHRASED IT’S ARGUMENTATIVE.

2

3 BY MR. FELDMAN:

4 Q.: IN YOUR PROFESSIONAL EXPERIENCE HAVE YOU TESTIFIED

5 IN A CASE WHERE TWO FORENSIC PATHOLOGISTS AND FOUR FORENSIC

6 ENTOMOLOGISTS PUT THE PARAMETERS WITHIN THE UNIQUE TIME SETS

7 THAT WE SEE IN THIS CASE?

8 A.: NO, SIR.

9 Q.: THAT’S PRETTY UNUSUAL, TOO, ISN’T IT?

10 MR. DUSEK: OBJECTION, ARGUMENTATIVE.

11 THE COURT: SUSTAINED.

12

13 BY MR. FELDMAN:

14 Q.: IS THAT UNUSUAL IN YOUR PROFESSIONAL EXPERIENCE?

15 MR. DUSEK: ASKED AND ANSWERED, YOUR HONOR.

16 THE COURT: OVERRULED.

17 YOU CAN ANSWER.

18 THE WITNESS: IT IS UNUSUAL IN MY PROFESSIONAL

19 EXPERIENCE, YES.

20

21 BY MR. FELDMAN:

22 Q.: YOU TOLD US THAT YOU TESTIFIED THAT THERE HAD BEEN

23 CIRCUMSTANCES WHERE THERE HAD BEEN DISAGREEMENTS WHERE YOU

24 TESTIFIED ON ONE SIDE OF THE ISLE, I’LL SAY, AND MR. FAULKNER,

25 FOR INSTANCE, TESTIFIED ON THE OTHER SIDE OF THE ISLE.

26 IN THOSE CIRCUMSTANCES DID THE DISPUTES AMONG THE

27 FORENSIC ENTOMOLOGISTS OR THE LAWYERS IN THE CASE INVOLVE HOURS

28 OR DID IT INVOLVE DAYS? 9207

1 MR. DUSEK: OBJECTION, IRRELEVANT, HEARSAY.

2 THE COURT: SUSTAINED.

3 YOU NEED NOT ANSWER, DOCTOR.

4

5 BY MR. FELDMAN:

6 Q.: IS IT FAIR TO SAY THAT WITHIN THE COMMUNITY OF

7 FORENSIC ENTOMOLOGISTS YOUR DISPUTES INVOLVE HOURS GENERALLY AND

8 NOT DAYS OR WEEKS?

9 MR. DUSEK: OBJECTION, 352, NO FOUNDATION.

10 THE COURT: SUSTAINED.

11

12 BY MR. FELDMAN:

13 Q.: THERE WAS A QUESTION CONCERNING MAGGOT MASS.

14 WITH REGARD TO THE MAGGOT MASS, SIR, THAT IS — I

15 THINK YOU TOLD US THAT IS A SUBJECT OF PROFESSIONAL DISAGREEMENT

16 WITHIN YOUR SCIENTIFIC COMMUNITY, IS THAT RIGHT?

17 A.: THAT’S RIGHT.

18 Q.: COUNSEL ASKED YOU A QUESTION THAT IMPLICATED OR

19 INFERRED THAT THERE WAS SOMETHING WRONG WITH USING MAGGOT MASS

20 TO FACTOR IN POSTMORTEM ESTIMATES?

21 MR. DUSEK: OBJECTION, ARGUMENTATIVE AS PHRASED.

22 THE COURT: AS PHRASED. REPHRASE IT AND I’LL ALLOW IT,

23 MR. FELDMAN.

24

25 BY MR. FELDMAN:

26 Q.: DO YOU AGREE THAT THERE IS A PROFESSIONAL

27 DISAGREEMENT WITHIN YOUR COMMUNITY AS TO WHETHER OR NOT AND HOW

28 MAGGOT MASS MAY FACTOR INTO OR THE TEMPERATURES ACQUIRED IN 9208

1 MAGGOT MASS MAY FACTOR INTO POSTMORTEM ESTIMATES?

2 A.: THERE CERTAINLY IS A LIVELY DEBATE WITH RESPECT TO

3 HOW TO QUANTITATE AND FACTOR IN THE EFFECT OF MAGGOT MASS.

4 Q.: IS THAT A MORE LIVELY DEBATE THAN ONE THAT INVOLVES

5 MATHEMATIC ERRORS?

6 MR. DUSEK: OBJECTION, ARGUMENTATIVE, IRRELEVANT.

7 THE COURT: SUSTAINED.

8

9 BY MR. FELDMAN:

10 Q.: DOES YOUR COMMUNITY DISCUSS MAKING ADDITION ERRORS

11 AND THEN TESTIFYING AS PROFESSIONAL EXPERTS?

12 MR. DUSEK: OBJECTION, 352, ARGUMENTATIVE.

13 THE COURT: SUSTAINED.

14

15 BY MR. FELDMAN:

16 Q.: IF HYPOTHETICALLY IN THIS CASE YOU HAD UTILIZED —

17 WELL, LET ME ASK IT A DIFFERENT WAY.

18 WITH REGARD TO YOUR WORK IN THIS CASE, SIR, YOU DID

19 NOT RELY SOLELY ON THE WORK OF ANDERSON, DID YOU?

20 A.: NO, SIR.

21 Q.: YOU DID NOT RELY SOLELY ON THE WORK OF GREENBURG,

22 IS THAT RIGHT?

23 A.: NO.

24 Q.: AND YOU DIDN’T RELY SOLELY ON THE WORK OF KAMAL, IS

25 THAT RIGHT?

26 A.: I DID NOT RELY SOLELY ON ANY OF THOSE WORKS.

27 Q.: WHY NOT?

28 A.: BECAUSE THERE WERE THREE STUDIES THAT WERE 9209

1 AVAILABLE THAT ONLY POINT TO THESE PARTICULAR SPECIES OF BLOW

2 FLIES.

3 Q.: NOW, SIR, YOU WERE ALSO ASKED ON CROSS-EXAMINATION

4 WHETHER OR NOT YOU’D CONSIDERED — WHETHER OR NOT MR. FAULKNER

5 TOOK INTO CONSIDERATION THE WEATHER DATA AT LINDBERG FIELD.

6 DO YOU HAVE A SPECIFIC RECOLLECTION OF READING IN

7 THE TRANSCRIPT OF OUR TRIAL WHAT FAULKNER SAID THAT YOU

8 CONSIDERED IN DETERMINING WHETHER OR NOT HE TOOK INTO

9 CONSIDERATION LINDBERG FIELD DATA?

10 A.: THE NAME LINDBERG FIELD STICKS IN MY MIND.

11 Q.: IF I SHOWED YOU THE TRANSCRIPT, MIGHT THAT REFRESH

12 YOUR RECOLLECTION AS TO WHETHER OR NOT FAULKNER UTILIZED WEATHER

13 SET DATA FROM LINDBERG FIELD?

14 A.: PERHAPS IT WOULD.

15 Q.: DIRECTING, FOR THE BENEFIT OF COUNSEL, 8012. I’M

16 SORRY, I JUST WANT — JUST FOR THE LIMITED PURPOSE OF REFRESHING

17 YOUR RECOLLECTION, PAGE 8012 OF OUR TRANSCRIPT, LINES 21 THROUGH

18 PAGE 8013 LINE 11. IF YOU COULD JUST —

19 MR. DUSEK: PERHAPS HE COULD READ THROUGH LINE 15 ALSO.

20

21 BY MR. FELDMAN:

22 Q.: OR LINE 15, WHATEVER.

23 A.: “QUESTION —

24 Q.: NO.

25 THE COURT: JUST READ TO YOURSELF.

26 BY MR. FELDMAN:

27 Q.: JUST READ TO YOURSELF.

28 A.: (WITNESS COMPLYING.) 9210

1 Q.: SIR, DOES READING THROUGH THE TRANSCRIPT OF OUR

2 TRIAL PROCEEDINGS OF THE TESTIMONY OF DAVID FAULKNER GIVEN

3 7/10/02 IN OUR COURT REFRESH YOUR RECOLLECTION AS TO WHETHER OR

4 NOT MR. FAULKNER DID, IN FACT, UTILIZE INFORMATION FROM LINDBERG

5 FIELD?

6 MR. DUSEK: OBJECTION, MISSTATES, OR 352.

7 THE COURT: OVERRULED.

8 YOU CAN ANSWER THAT YES OR NO. DOES IT REFRESH

9 YOUR RECOLLECTION?

10 THE WITNESS: YES.

11

12 BY MR. FELDMAN:

13 Q.: IF — I’M GOING TO SWITCH TOPICS, I’M SORRY.

14 WITH REGARD TO THIS CONSIDERATION OF MAGGOT MASS,

15 IF YOU CONSIDERED THE MAGGOT MASS IN YOUR POSTMORTEM INTERVAL

16 ESTIMATE, WOULDN’T THE CALCULATION — STRIKE THAT.

17 YOU’RE FAMILIAR WITH SOME OF THE LITERATURE WHICH TALKS

18 ABOUT MAGGOT MASSES ELEVATING THE CORPSE UP TO I THINK 25

19 DEGREES CENTIGRADE OVER AMBIENT — OR IS IT 25 FAHRENHEIT OVER

20 AMBIENT?

21 A.: THERE ARE A NUMBER OF DIFFERENT STUDIES THAT WOULD

22 SUGGEST THAT THERE ARE TEMPERATURES THAT ARE SIGNIFICANTLY OVER

23 AMBIENT THAT ARE PRODUCED BY MAGGOT MASS.

24 Q.: HAD YOU TAKEN INTO CONSIDERATION MAGGOT MASS WOULD

25 THAT HAVE ACCELERATED, THAT IS, MOVED CLOSER IN TIME THE BODY

26 WAS DISCOVERED, YOUR ESTIMATE?

27 A.: YES. HAD I — HAD I PUT IN A FACTOR FOR MAGGOT

28 MASS IT WOULD HAVE HAD THE EFFECT OF SHORTENING THE CALCULATED 9211

1 INTERVAL.

2 Q.: SO WOULD THAT HAVE MOVED THE FEBRUARY 12TH DATE

3 FORWARD TOWARD THE 28TH?

4 A.: YES, IT WOULD.

5 Q.: SO EVEN THOUGH YOU KNEW THAT USE OF THE MAGGOT MASS

6 WOULD BENEFIT THE DEFENSE YOU DIDN’T USE IT?

7 A.: NO, I DIDN’T.

8 Q.: WHY NOT?

9 A.: BECAUSE I DIDN’T HAVE ANY — ANY QUANTITATIVE

10 NUMBERS TO GO ON AND —

11 Q.: ALSO, I’M SORRY, SIR.

12 A.: AND THEREFORE, I DIDN’T — I DIDN’T USE IT.

13 Q.: YOU TOLD US ON DIRECT YOU WERE TRYING TO BE FAIR.

14 WAS THAT ANOTHER — IS THAT ILLUSTRATION OF THE MANNER IN WHICH

15 YOU WERE TRYING TO BE FAIR, SIR?

16 A.: WELL, I DIDN’T HAVE ANY NUMBERS TO RELY ON AND I AM

17 UNWILLING TO GUESS AS TO WHAT THE AMOUNT MIGHT HAVE BEEN.

18 Q.: DO YOU RECALL IN YOUR EVALUATIONS OF THE POSTMORTEM

19 INTERVAL — I’VE GOT TO TAKE THIS DOWN, I’M SORRY.

20 IN THE PROSECUTION’S PROFFERED 197, IT SUGGESTS

21 THAT MR. HAS — DR. HASKELL AGREED THAT — PUTS THE DATES OF DR.

22 HASKELL OF POSTMORTEM INTERVAL FROM FEBRUARY 14TH THROUGH

23 FEBRUARY 21. AS PART OF WHAT YOU CONSIDERED YOU CONSIDERED DR.

24 HASKELL’S TESTIMONY, DID YOU NOT?

25 A.: YES, I DID.

26 Q.: YOU WERE AWARE THAT DR. HASKELL SAID IT WAS

27 POSSIBLE THAT, IN FACT, OVIPOSITION COULD HAVE OCCURRED AS EARLY

28 AS THE 12TH OF FEBRUARY. WERE YOU AWARE OF THAT? 9212

1 A.: THAT’S CORRECT.

2 Q.: SO WHEN WE SEE ON 197, FEBRUARY 14 THROUGH FEBRUARY

3 21, DOES THAT SEEM TO BE CONSISTENT OR INCONSISTENT WITH THE

4 TESTIMONY OF DR. HASKELL ON THAT SUBJECT?

5 A.: I WOULD SAY IT’S GENERALLY CONSISTENT.

6 Q.: BUT NOT PRECISELY CONSISTENT, IS IT?

7 A.: NO.

8 Q.: YOU MENTIONED SOMETHING ABOUT — I’M SORRY — BOWL

9 WEEVILS AND FARMERS. I THOUGHT THAT’S WHAT YOU WERE SAYING ON

10 DIRECT EXAMINATION.

11 IN YOUR PART OF THE COUNTRY, SIR, ARE YOU CONSULTED

12 BY I’LL SAY AGRIBUSINESS, PEOPLE THAT HAVE A VERY LOT OF MONEY

13 AT STAKE IN HOW THEIR CROPS PRODUCE?

14 MR. DUSEK: OBJECTION, RELEVANCY ON THIS TOPIC.

15 THE COURT: OVERRULED.

16 YOU CAN ANSWER THAT.

17 THE WITNESS: I’M NOT — I’M A MEDICAL AND VETERINARIAN

18 FORENSIC ENTOMOLOGIST, AND THEREFORE, I’M NOT CONSULTED

19 ROUTINELY ON SITUATIONS SUCH AS ALFALFA WEEVIL. HOWEVER, I USE

20 THAT AS ILLUSTRATION OF A SOPHISTICATED DEVELOPMENT OF THIS

21 PARTICULAR TECHNIQUE AS APPLIED TO AGRIBUSINESS.

22 Q.: AND AGRIBUSINESS HAS A LOT OF MONEY AT STAKE, SO

23 THERE’S A VESTED INTEREST. THERE’S A FINANCIAL INTEREST

24 INSURING THE ACCURACY OF THE FORENSIC ENTOMOLOGIC COMMUNITY AND

25 THE ENTOMOLOGIC COMMUNITY IN THE ESTIMATIONS OF POSTMORTEM

26 INTERVALS — I’M SORRY — OVIPOSITION?

27 A.: THAT’S CORRECT.

28 Q.: SIR, YOU WERE ASKED QUESTIONS ABOUT BODY 9213

1 MUMMIFICATION. MY QUESTION TO YOU IS JUST WITH REGARD TO THE

2 ISSUE OF ANIMALS DRYING IN THE ENVIRONMENT, DO SMALL ANIMALS DRY

3 OUT LIKE RODENTS, MICE?

4 A.: YES.

5 Q.: RATS, SIR?

6 A.: YES.

7 Q.: AND WHETHER IT’S IN AN ARID CLIMATE OR WET CLIMATE,

8 DO THE BUGS FIND THEM?

9 A.: YES, THEY DO.

10 Q.: EVEN THOUGH THEY’VE BEEN LAYING OUT FOR A WHILE?

11 A.: YES.

12 Q.: FOR INSTANCE, A MOUSE, THAT WOULD HAVE A MUCH

13 SMALLER BODY MASS — I’M SORRY.

14 FOR INSTANCE, A SNAKE, THAT WOULD HAVE A MUCH

15 SMALLER BODY MASS THAN A 37 TO 50 POUND GIRL, WOULDN’T IT?

16 A.: YES, IT WOULD.

17 Q.: WHEN YOU WERE TALKING ABOUT IN RESPONSE — ON SOME

18 OF THE QUESTIONS ON DIRECT — I’M SORRY — ON CROSS YOU WERE

19 ASKED QUESTIONS ABOUT MIGRATING MAGGOTS AND THE PREPUPARIAL

20 STAGE. IN FACT, THERE WERE NO MIGRATING MAGGOTS IN THIS CASE,

21 RIGHT?

22 A.: NOT TO MY KNOWLEDGE.

23 Q.: THERE WERE NO PREPUPARIUM, WERE THERE?

24 A.: NOT TO MY KNOWLEDGE.

25 Q.: SIR, YOU WERE ASKED BY THE DEFENSE — YOU RECEIVED

26 A LETTER FROM THE DEFENSE, MS. SHAEFER, ON OR ABOUT JULY THE

27 10TH, 2002, IS THAT RIGHT?

28 A.: I DON’T HAVE IT IN FRONT OF ME BUT IF THERE’S A 9214

1 COPY THEN —

2 Q.: DO YOU HAVE A RECOLLECTION?

3 A.: YES. I’VE GOTTEN LETTERS FROM MS. SHAEFER.

4 Q.: DO YOU RECALL ON OR ABOUT JULY THE 10TH BEING

5 PROVIDED DR. HASKELL’S REPORT OF HIS EXAMINATION, THE TRIAL

6 TESTIMONY OF DAVID FAULKNER, AND WEATHER CONDITIONS FOR THE

7 MONTH OF FEBRUARY FOR LINDBERG AND SANTEE, AN INLAND LOCATION?

8 A.: I BELIEVE THAT’S CORRECT.

9 Q.: ALL RIGHT.

10 AND YOU WERE REQUESTED — IT WAS INDICATED TO YOU

11 AT THAT TIME, THAT WOULD BE JULY THE 10TH, THAT THE INSECTS

12 WOULD BE FORWARDED TO YOU IN A SEPARATE MAILING WITHIN A PERIOD

13 OF TIME, IS THAT RIGHT?

14 A.: THAT’S CORRECT.

15 Q.: YOU WERE ASKED TO REVIEW THE MATERIALS AND CONTACT

16 MS. SHAEFER WITH YOUR ASSESSMENT, ISN’T THAT RIGHT?

17 A.: YES.

18 Q.: YOU WEREN’T ASKED FOR AN OPINION THAT WAS EITHER

19 FAVORABLE OR NOT FAVORABLE. YOU WERE JUST ASKED TO TELL US WHAT

20 YOU BELIEVED TO BE THE CASE BASED ON YOUR PROFESSIONAL TRAINING

21 AND EXPERIENCE, IS THAT RIGHT, SIR?

22 A.: THAT’S CORRECT.

23 Q.: SIR, BASED ON YOUR PROFESSIONAL TRAINING AND

24 EXPERIENCE, AND BASED ON WHAT’S BEEN GOING ON TODAY, DO YOU HAVE

25 AN OPINION AS TO THE DATES WITHIN WHICH THE DECEDENT WAS EXPOSED

26 TO BLOW FLY OVIPOSITION?

27 A.: YES.

28 MR. DUSEK: OBJECTION, NO FOUNDATION FOR THAT QUESTION. 9215

1 THE COURT: AS TO THE PRECURSOR, YOU CAN REPHRASE IT AND

2 I’LL ALLOW THE AREA OF INQUIRY, MR. FELDMAN.

3

4 BY MR FELDMAN:

5 Q.: BASED ON YOUR REVIEW OF ALL THE MATERIALS THAT HAVE

6 BEEN PROVIDED TO YOU, BASED ON YOUR PROFESSIONAL TRAINING AND

7 EXPERIENCE, BASED ON YOUR POSITION AS A DIPLOMATE IN FORENSIC

8 ENTOMOLOGY, BASED ON YOUR MANY YEARS OF EXPERIENCE IN THE FIELD,

9 IS IT YOUR OPINION THAT THE DECEDENT WAS EXPOSED?

10 MR. DUSEK: IT’S LEADING.

11

12 BY MR. FELDMAN:

13 Q.: TO BLOW FLY OVIPOSITION NO LATER THAN 23 FEBRUARY

14 2002 AND NOT EARLIER THAN 12 FEBRUARY 2002?

15 THE COURT: SUSTAINED AS PHRASED. IT’S LEADING.

16 REPHRASE THE QUESTION.

17

18 BY MR. FELDMAN:

19 Q.: DO YOU HAVE AN OPINION AS TO WHAT DATES THE

20 DECEDENT COULD HAVE BEEN EXPOSED TO BLOW FLY OVIPOSITION, BASED

21 UPON YOUR TRAINING AND EXPERIENCE, BASED UPON YOUR FORENSIC

22 EXPERIENCE, BASED UPON YOUR PROFESSIONAL EXPERIENCE?

23 MR. DUSEK: OBJECTION, YOUR HONOR, AN OPINION SHOULD ONLY

24 BE BASED ON WHEN THE FLIES LAID EGGS.

25 THE COURT: OVERRULED.

26 YOU CAN ANSWER.

27 THE WITNESS: YES. MY OPINION IS WHAT I STATED IN MY

28 REPORT 12 THROUGH 23 FEBRUARY. 9216

1 Q.: AND THAT TOOK INTO ACCOUNT EVERYTHING THAT YOU

2 COULD FAIRLY DO TO PRESENT AN HONEST OPINION, A FAIR OPINION TO

3 THIS JURY?

4 A.: I DID MY BEST. YES, SIR.

5 MR. FELDMAN: THANK YOU VERY MUCH, SIR.

6 THE COURT: ANYTHING FURTHER, MR. DUSEK?

7

8 RECROSS-EXAMINATION +

9 BY MR. DUSEK:

10 Q.: AND YOUR DATE 12 WOULD BE THE DATE THAT THE EGGS

11 WERE LAID ON THE BODY, RIGHT?

12 A.: YES, SIR.

13 Q.: 12TH OF FEBRUARY, AND THAT’S WHAT YOU’RE

14 COMFORTABLE GIVING US AS AN ENTOMOLOGIST?

15 A.: YES, SIR.

16 Q.: THAT’S WHEN THE EGGS GOT TO THE BODY?

17 A.: THAT’S THE EARLIEST TIME THAT THE EGGS COULD HAVE

18 BEEN THERE, YES, SIR.

19 Q.: BASED UPON THE DEVELOPMENT OF THOSE EGGS AND LARVAE

20 THAT YOU SAW?

21 A.: YES, SIR.

22 Q.: WHEN YOU WERE SHOWN THE TRANSCRIPT OF DAVID

23 FAULKNER AND YOU GOT TO READ THAT ENTIRE SECTION, COUNSEL ASKED

24 IF YOU SAW WHAT HE SAID HE RELIED UPON, DATA FROM LINDBERG FIELD

25 AND YOU SAID YES, DIDN’T YOU?

26 A.: LINDBERG FIELD STUCK IN MY MIND, YES, SIR.

27 Q.: AND DID THE TRANSCRIPT ALSO SAY HE HAD WEATHER DATA

28 FROM EL CAJON? 9217

1 A.: AS I JUST READ IT, THE NAME EL CAJON WAS IN THE

2 TRANSCRIPT, YES, SIR.

3 Q.: SO HE HAD DATA FROM BOTH EL CAJON AND LINDBERG

4 FIELD?

5 A.: I INFER THAT THERE WAS DATA FROM BOTH, YES.

6 Q.: REGARDING THE STAGES OF THE INSECTS THAT YOU HAD,

7 YOU HAD DAVID FAULKNER’S REPORT, DIDN’T YOU?

8 A.: YES, I DID.

9 Q.: AND SO YOU HAD THE INFORMATION THAT THE — ALL THE

10 MAGGOTS WERE IN THE THIRD INSTAR TO THE PREPUPARIAL STAGE?

11 A.: I BELIEVE THAT’S WHAT FAULKNER’S REPORT SAID.

12 Q.: ALL RIGHT.

13 AND THE PREPUPARIAL STAGE IS THE ONE BEYOND THIRD

14 INSTAR?

15 A.: YES.

16 Q.: SO CERTAINLY THE MAGGOTS WERE AT THE END OF THE

17 THIRD INSTAR STAGE UP TO THE PREPUPARIAL STAGE, CORRECT?

18 A.: THAT’S WHAT FAULKNER’S REPORT STATES.

19 Q.: AND THAT’S PART OF THE INFORMATION THAT YOU WERE

20 RELYING UPON?

21 A.: YES.

22 Q.: AND SO YOU’RE ALSO AWARE THAT THERE WAS A MAGGOT

23 FOUND IN THE SOIL SAMPLE?

24 A.: NOW WOULD YOU REPEAT THAT, SIR? THERE WAS A —

25 Q.: IN HIS SEARCHING THE SCENE WITH YOU AT LEAST SAW IN

26 HIS NOTES WHERE HE FOUND A MAGGOT IN THE SOIL SAMPLE?

27 A.: A MAGGOT IN THE SOIL SAMPLE?

28 Q.: YES. 9218

1 A.: YES.

2 Q.: WHAT DOES THAT MEAN?

3 A.: I DON’T KNOW WHAT THAT MEANS.

4 Q.: THE MAGGOTS ARE SUPPOSED TO BE ON THE BODY IF

5 THEY’RE DEVELOPING, AREN’T THEY?

6 A.: THEY ARE IF — WHEN THEY ARE FEEDING THEY’RE ON THE

7 BODY, YES.

8 Q.: WHERE DO THEY GO WHEN THEY GO ON TO THE NEXT STAGE?

9 A.: WHEN THEY GET TO THE MIGRATORY PHASE THEY MIGRATE

10 AWAY FROM THE BODY.

11 Q.: THEY GET INTO THE SOIL, DON’T THEY?

12 A.: THEY CAN GO INTO THE SOIL OR WHEREVER ELSE THEY CAN

13 GO.

14 Q.: AND YOU SAW WHERE HE FOUND ONE IN THE SOIL?

15 A.: I SAW THAT THERE WAS A REPORT OF A MAGGOT IN THE

16 SOIL.

17 Q.: AND YOU ALSO HAD THE REPORT FROM NEAL HASKELL THAT

18 DESCRIBED THE LENGTH OF THE MAGGOTS, CORRECT?

19 A.: THAT’S CORRECT.

20 Q.: WHERE IT SHOWED THAT THEY WERE AT THE END OF THE

21 THIRD INSTAR STAGE?

22 MR. FELDMAN: THAT’S ARGUMENTATIVE, OBJECTION.

23 THE COURT: IT’S BEEN ASKED AND ANSWERED. SUSTAINED.

24 NEXT QUESTION.

25

26 BY MR. DUSEK:

27 Q.: AND REGARDING THE CONCORDANCE OF THE PEOPLE THAT

28 YOU HAVE CONSIDERED IN THIS CASE, THE ENTOMOLOGISTS VIEWS FROM 9219

1 THEIR REPORTS ARE SUMMARIZED ON 197; IS THAT CORRECT?

2 A.: YES, SIR.

3 Q.: AND, IN FACT, NEAL HASKELL’S REPORT INDICATED

4 FEBRUARY 14TH THROUGH THE 21ST?

5 A.: I BELIEVE THAT’S CORRECT. YES, SIR.

6 Q.: AND THE PATHOLOGISTS RANGED FROM TEN DAYS TO FOUR

7 WEEKS FOR A TIME OF DEATH FOR THIS CHILD?

8 A.: I BELIEVE THAT’S CORRECT.

9 Q.: ANOTHER ONE WAS TEN DAYS TO SIX WEEKS FOR THIS

10 CHILD?

11 A.: YES, SIR.

12 Q.: AND THE ANTHROPOLOGIST WAS FROM FOUR TO SIX WEEKS

13 TO ACHIEVE THIS STATE OF MUMMIFICATION, YOU SAW THAT ALSO?

14 A.: I’VE SEEN THAT.

15 Q.: AND YOU’RE SAYING THAT, IN YOUR EXPERIENCE, IN YOUR

16 FIELD IS REMARKABLE CONCORDANCE?

17 A.: I’M SAYING THAT WHAT WE SEE HERE FROM THE

18 STANDPOINT OF THE ENTOMOLOGICAL EVIDENCE IS GOOD CONCORDANCE.

19 Q.: USUALLY IT’S WORSE THAN THIS?

20 A.: I’VE SEEN IT WORSE THAN THAT.

21 MR. DUSEK: THANK YOU, SIR.

22 THE COURT: ANYTHING FURTHER?

23

24 REDIRECT EXAMINATION +

25 BY MR. FELDMAN:

26 Q.: WITH REGARD TO THIS ISSUE OF MR. FAULKNER, YOU TOOK

27 INTO CONSIDERATION HIS CONCLUSION, DID YOU, THAT OWING TO THE

28 ABSENCE OF MIGRATING POST FEEDING LARVAE IN THE SOIL UNDER OR 9220

1 NEAR WHERE THE BODY WAS LOCATED, THE INSECTS COLLECTED FROM THE

2 REMAINS REPRESENT THE ORIGINAL INFESTATION OR GENERATION BY

3 THESE SPECIES. YOU CONSIDERED THAT, IS THAT RIGHT?

4 A.: YES, I DID.

5 Q.: DO YOU AGREE WITH THAT CONCLUSION?

6 A.: HE DIDN’T FIND ANY MIGRATING PHASES.

7 Q.: AND BASED ON THE SPECIES THAT HE DISCOVERED AND

8 EVALUATED AND BASED ON HIS CALCULATIONS YOU’RE AWARE THAT HIS

9 VIEW WAS THAT INITIAL OVIPOSITION OCCURRED NO LATER THAN 16 TO

10 18 FEBRUARY, RIGHT?

11 A.: THOSE ARE THE DATES THAT HE GAVE IN HIS REPORT.

12 Q.: NOTWITHSTANDING YOU TOOK INTO CONSIDERATION ALL THE

13 DATA THAT WAS PROVIDED TO YOU, RIGHT?

14 A.: THAT’S CORRECT.

15 MR. FELDMAN: NO FURTHER QUESTIONS.

16 THE COURT: ALL RIGHT.

17 IS THE DOCTOR TO BE EXCUSED.

18 MR. DUSEK: YES.

19 MR. FELDMAN: NO OBJECTION, YOUR HONOR.

20 THE COURT: ALL RIGHT.

21 THANK YOU, DOCTOR FOR COMING IN. YOU’RE FREE TO

22 LEAVE THESE PROCEEDINGS. REMEMBER YOU’RE UNDER AN ADMONITION,

23 HOWEVER, NOT TO DISCUSS YOUR TESTIMONY UNTIL THE MATTER’S

24 CONCLUDED.

25 THE WITNESS: I UNDERSTAND.

26 THE COURT: THANK YOU.

27 MR. FELDMAN: YOUR HONOR, WOULD THIS BE AN APPROPRIATE

28 TIME TO RECESS AT LEAST FOR THE JURY FOR A FEW MOMENTS TO

9221

1 ADDRESS THE COURT ON OTHER MATTERS?

2 THE COURT: YES. ALL RIGHT. THANK YOU VERY MUCH DOCTOR

3 FOR COMING IN.

4 LADIES AND GENTLEMEN, I HAVE TO TALK TO THE LAWYERS

5 ON SOME SCHEDULING ISSUES. WE MIGHT AS WELL GO AHEAD AND TAKE A

6 STRETCH BREAK. I WANT TO HOPEFULLY HAVE A VERY ACCURATE PICTURE

7 OF WHERE WE’RE HEADED IN THE NEXT WEEK SO THAT YOU CAN PLAN

8 ACCORDINGLY.

9 PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO

10 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR

11 WITH OTHERS, NOR FORM OR EXPRESS ANY OPINIONS ON THE CASE UNTIL

12 IT IS SUBMITTED TO YOU.

13 PLEASE BE OUTSIDE THE DOOR AT A QUARTER TO 4:00,

14 PLEASE. THAT’S 3:45.

15 (AT 3:20 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
16

17

18 THE COURT: ALL RIGHT. THE RECORD SHOULD REFLECT THAT

19 THE JURORS AND ALTERNATES HAVE LEFT THE COURTROOM. YES, MR.

20 FELDMAN.

21 MR. FELDMAN: THERE WAS AN OFFER OF PROOF THAT I HAD

22 REQUESTED LEAVE TO ADDRESS THE COURT ON IN-CAMERA.

23 THE COURT: ALL RIGHT.

24 I’LL ENTERTAIN THAT AT THIS TIME.

25 COUNSEL MAKE YOURSELVES AVAILABLE FOR THE PURPOSES

26 OF ARGUMENT AS SOON AS I’VE CONDUCTED THE HEARING. ALL RIGHT.

27 OPHELIA. LET’S RETIRE TO CHAMBERS.

28

9222

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2 (SEALED PROCEEDINGS FOLLOW THIS DATE. PAGES 9223 THROUGH

3 9239, BOUND IN SEPARATE VOLUME 39A. UNSEALED PROCEEDINGS

4 CONTINUE ON PAGE 9240. NOTHING OMITTED.)

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28 9240

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

3 THE COURT: ALL RIGHT.

4 IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT

5 WE’RE PRESENT IN OPEN COURT HAVING CONCLUDED THE IN-CAMERA

6 HEARING.

7 MR. DUSEK, MAYBE SOME DAY YOU’RE GOING TO GET TO

8 SIT UP HERE, BUT OCCASIONALLY JUDGES GET BOXED IN. MR. FELDMAN

9 HAS BEEN VERY UP FRONT WITH ME AND, GIVEN THE SEVERITY OF THE

10 IMPLICATIONS OF THE COURT’S RULINGS ON ISSUES SUCH AS THIS, I

11 HAVE DECIDED TO DO THE FOLLOWING.

12 MR. FELDMAN ADVISES ME THAT HE WILL KNOW ON SUNDAY

13 WHETHER OR NOT THIS WITNESS WILL BE CALLED. IF THE WITNESS IS

14 CALLED, I HAVE TOLD HIM THAT THE WITNESS WILL PREPARE A FULL

15 REPORT. IT WILL BE DELIVERED TO YOU ON MONDAY. YOU WILL HAVE

16 ALL DAY MONDAY TO WORK WITH THAT REPORT, AND THE WITNESS WILL BE

17 PUT ON THE STAND FIRST THING TUESDAY MORNING.

18 WHEN THE WITNESS IS CONCLUDED, I HAVE BEEN ADVISED

19 BY MR. FELDMAN THE DEFENSE INTENDS TO CALL NO FURTHER WITNESSES.

20 SO IF THAT SCENARIO PLAYS OUT, THE WITNESS WILL BE EXAMINED ON

21 TUESDAY, DEFENSE WILL REST AND THE COURT WILL INSTRUCT. NO

22 ARGUMENT.

23 MR. FELDMAN FURTHER ADVISES ME THAT IF IN

24 CONSULTATION WITH THE EXPERT THEY DETERMINE THEY ARE NOT GOING

25 TO CALL HIM, YOU WILL BE ADVISED ON SUNDAY, MONDAY AT THE

26 LATEST. IF THAT SCENARIO ARISES, IT WILL BE INTENT OF THE COURT

27 FIRST THING TUESDAY MORNING TO INSTRUCT AND THEN YOU WILL ARGUE,

28 BUT YOU WILL HAVE MONDAY TO PREPARE BECAUSE YOU WILL BE ADVISED 9241

1 ON SUNDAY THE WITNESS IS NOT GOING TO BE CALLED.

2 I RECOGNIZE THE POSITION THIS PUTS YOU IN.

3 HOWEVER, GIVEN THE HISTORY OF ALL OF THE EXPERTS IN THIS

4 PARTICULAR CASE, AND THE AMOUNT OF TIME BOTH SIDES HAVE HAD TO

5 WORK WITH THE REPORTS THAT HAVE BEEN GENERATED BY THESE EXPERTS,

6 BY GIVING YOU A FULL DAY ON MONDAY TO WORK WITH IT, IT APPEARS

7 TO ME THAT YOU SHOULD BE PREPARED TO CROSS-EXAMINE THE WITNESS.

8 AND I AM GOING TO NOTE THIS ALL BEING OBVIOUSLY OVER THE

9 OBJECTION OF THE PEOPLE.

10 MR. DUSEK: FRANKLY, I DO NOT WANT TO BE A JUDGE. MY

11 REQUEST, AND I THINK IT’S A REASONABLE ONE — I WILL NOT ARGUE

12 WITH THE COURT’S DECISION. I UNDERSTAND THE NATURE OF THE CASE.

13 HOPEFULLY, PEOPLE WILL BE LOOKING OVER OUR SHOULDER IN THIS

14 CASE.

15 BUT WHAT I DO REQUEST IS THE NAME OF THAT PERSON

16 NOW, WHETHER HE CALLS THAT INDIVIDUAL, IT DOES NOT GIVE US ANY

17 ADVANTAGE, UNFAIR ADVANTAGE IF WE HAVE THE NAME NOW. WE CAN

18 START DOINGS SEARCHES ON THAT INDIVIDUAL, TO CONTACT PEOPLE

19 DURING WORKING HOURS ON THIS COAST AND THE EAST COAST, TO FIND

20 OUT WHO THIS INDIVIDUAL IS, GATHERING TRANSCRIPTS, THE TYPES OF

21 THINGS BOTH SIDES WANT TO DO WHEN A NEW PERSON IS INTRODUCED

22 INTO A CASE. IF THAT INDIVIDUAL DOES NOT TESTIFY THE DEFENSE IS

23 NOT HARMED. WE CERTAINLY WILL NOT GO OUT AND CALL HIM AND BRING

24 HIM IN. THE CASE WILL END IN ITS NORMAL COURSE.

25 THE COURT: WELL, OF COURSE, YOU WON’T BE CALLING ANY

26 MORE WITNESSES, SO THAT I THINK I CAN BE ASSURED OF.

27 MR. FELDMAN, YOUR RESPONSE.

28 MR. FELDMAN: THE COURT — 9242

1 THE COURT: NOT DONE IN OPEN COURT, DONE IN PRIVATE TO

2 MR. DUSEK.

3 MR. FELDMAN: JUST CONSISTENT WITH THE POLICY ON

4 DISCLOSURES, IT’S GENERALLY BEEN THE NIGHT BEFORE. I’M TRYING

5 TO ACCOMMODATE COUNSEL BUT WE’VE BEEN GETTING THE INFORMATION AT

6 THE LAST POSSIBLE MOMENT. WE DIDN’T KNOW OF CERTAIN OF THEIR

7 WITNESSES.

8 WHAT YOU DIRECT ME TO DO, YOUR HONOR, I WILL

9 CERTAINLY COMPLY WITH. I BELIEVE THAT I ADVISED MR. CLARKE MY

10 INTENT WAS TO CALL A FORENSIC ANTHROPOLOGIST AND I THINK THAT —

11 I’M PRETTY SURE I DID MAKE THAT STATEMENT TO MR. CLARKE AND, IF

12 NOT, I’D CERTAINLY NOW ON THE RECORD. AND SO AT LEAST THEY HAVE

13 GENERALLY KNOWLEDGE OF WHERE WE’RE HEADED.

14 THE COURT: ALL RIGHT.

15 WELL, I THINK IT’S NOT AN INAPPROPRIATE REQUEST TO

16 DO IT IN PRIVATE, BECAUSE IF YOU CALL HIM THE GENERAL BACKGROUND

17 INVESTIGATION CAN BE CONCLUDED. IF YOU DON’T CALL HIM THE

18 PEOPLE ARE NOT IN A POSITION TO CALL HIM, SO THERE’S NO HARM NO

19 FOUL.

20 SO I WILL INSTRUCT YOU AT AN APPROPRIATE TIME THIS

21 AFTERNOON TO PRIVATELY REPRESENT TO MR. CLARKE AND MR. DUSEK WHO

22 THIS INDIVIDUAL IS, AND THEN WE’LL ABIDE BY THE SCHEDULE THAT WE

23 HAVE DISCUSSED, AND I WILL INFORM THE JURY AS TO WHERE WE’RE

24 HEADED AND THE POSSIBILITIES.

25 BUT WE WILL TOMORROW DO ALL OF THE JURY INSTRUCTION

26 WORK SO THAT WILL BE CONCLUDED, SO THAT ON TUESDAY IF YOU DON’T

27 CALL THE WITNESS WE’LL IMMEDIATELY GO INTO ARGUMENT. IF NOT, IT

28 WILL BE THE UNDERSTANDING THAT FIRST ARGUMENT WILL BE WEDNESDAY

9243

1 MORNING.

2 OKAY. LET’S GET THE JURY.

3 THE BAILIFF: YES, YOUR HONOR.

4

5 (AT 3:50 P.M. THE JURY ENTERED THE COURTROOM
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
6

7 THE COURT: WELCOME BACK, LADIES AND GENTLEMEN. YOU SEE,

8 YOU THOUGHT I GAVE YOU A BIG LONG BREAK AND IT TURNED OUT YOU

9 WERE IN A BREAK LONGER THAN I THOUGHT.

10 LADIES AND GENTLEMEN, MY HOPE HAD BEEN WHEN I

11 RESUMED THE BENCH THAT I’D BE ABLE TO GIVE YOU A VERY CLEAR

12 PICTURE AS TO WHERE WE’RE HEADED NEXT WEEK BECAUSE, AS YOU KNOW,

13 TOMORROW WE’RE OFF BECAUSE IT IS FRIDAY. THE LAWYERS AND I ARE

14 GOING TO BE WORKING ON SOME THINGS THAT WE CAN DO THAT DON’T

15 INVOLVE YOU BUT YOU FOLKS WILL NOT BE NEEDED.

16 IN LOOKING AT IT NOW, I’D SAY OUR SCHEDULE IS ABOUT

17 AS CLEAR AS MUD, PARDON THE PUN. HERE’S WHERE WE’RE AT. I

18 INDICATED THIS TO YOU EARLIER SO I’M SURE IT’S NOT A SURPRISE TO

19 YOU, ALTHOUGH IT SEEMS TO BE A SURPRISE TO THE PUNDENTS THAT

20 COMMENT ON HOW THIS TRIAL IS GOING.

21 WHEN WE’RE DEALING WITH THE POTENTIAL FOR EXPERT

22 WITNESSES WE HAVE TO DEAL WITH THEIR SCHEDULES. AND, AS YOU

23 HAVE DISCOVERED THROUGH ALL OF THE WITNESSES THAT HAVE TESTIFIED

24 IN THESE PROCEEDINGS, THESE PARTICULAR EXPERTS AND THEIR

25 EXPERTISE TAKES THEM ALL OVER THE WORLD AND THEY’RE NOT ALWAYS

26 LOCATED HERE IN CALIFORNIA. VERY FEW OF THEM ARE, WHICH

27 NECESSITATES TRAVELING AND ALL KINDS OF ARRANGEMENTS THAT NEED

28 TO BE MADE. 9244

1 MONDAY WE WILL NOT BE IN SESSION ON THIS MATTER.

2 ON TUESDAY I ANTICIPATE THE DEFENSE WILL REST. THEY MAY REST

3 WITH ONE ADDITIONAL WITNESS. WE DON’T KNOW FOR SURE IF THAT’S

4 GOING TO OCCUR. BUT ON TUESDAY THERE ARE TWO SCENARIOS. ONE IS

5 THE DEFENSE CALLS ITS LAST WITNESS AND RESTS, AND I INSTRUCT YOU

6 ON THE LAW THAT IS APPLICABLE TO A CASE SUCH AS THIS, AND WE

7 RECESS FOR THE DAY WITH CLOSING ARGUMENTS TO START WEDNESDAY

8 MORNING. THAT’S A POSSIBILITY.

9 THE SECOND POSSIBILITY IS THAT THE DEFENSE WILL NOT

10 CALL OR NOT BE IN A POSITION TO CALL ANY MORE WITNESSES AND WILL

11 REST FIRST THING TUESDAY MORNING. IF THAT SHOULD OCCUR, I WILL

12 IMMEDIATELY GIVE YOU THE LAW THAT APPLIES TO THE CASE AND THE

13 PEOPLE WILL HAVE THEIR OPENING ARGUMENT ON TUESDAY.

14 THE BOTTOM LINE IS WE’RE ON THE HOME STRETCH,

15 FOLKS. THE END IS IN SIGHT AND I AM ANTICIPATING YOU WILL BE IN

16 DELIBERATION NEXT WEEK. NEXT FRIDAY, BECAUSE OF THINGS WE HAVE

17 HEARD FROM A COUPLE OF YOU AND THE COURT’S OWN SCHEDULE, WE WILL

18 NOT BE IN SESSION. SO EVEN IF YOU’RE IN DELIBERATION, ON NEXT

19 FRIDAY YOU WILL NOT BE IN SESSION. SO YOU’LL BE ABLE TO GO TO

20 WORK OR TAKE CARE OF YOUR PERSONAL ITEMS.

21 I WILL HAVE COMPLETE INSTRUCTIONS FOR OUR SIX

22 ALTERNATES AT THE TIME THAT THE 12 PRIMARY JURORS GO INTO

23 DELIBERATION. SO I WILL HAVE A COMPLETE DISCUSSION WITH YOU,

24 FOLKS, AS TO THE OPTIONS THAT YOU WILL HAVE NEXT WEEK AS WELL.

25 BOTTOM LINE IS BY THIS TIME NEXT WEEK I ANTICIPATE

26 YOU WILL BE IN DELIBERATION. SO YOU GOT THAT? NO FRIDAY

27 SESSION AS USUAL. MONDAY WE WILL NOT BE IN SESSION, AND ONE OF

28 THOSE TWO OPTIONS IS GOING TO OCCUR ON TUESDAY. BUT WE WILL 9245

1 HAVE YOU IN DELIBERATION NEXT WEEK. PLEASE REMEMBER THE

2 ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR

3 TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS, NOR FORM

4 OR EXPRESS ANY OPINIONS ON THE MATTER UNTIL IT IS SUBMITTED TO

5 YOU FOR DECISION.

6 HAVE A PLEASANT FOUR DAYS OFF. WE’LL SEE YOU

7 TUESDAY AT 9:00 A.M. TUESDAY AT 9 O’CLOCK.

8 (AT 3:56 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
9

10 THE COURT: ALL RIGHT. THE RECORD SHOULD REFLECT THE

11 JURORS AND ALTERNATES HAVE LEFT THE COURTROOM.

12 YES, MR. FELDMAN.

13 MR. FELDMAN: TWO MATTERS MINISTERIAL. EARLIER TODAY WE

14 DISCUSSED WITH THE COURT, AND I THINK IT WAS NOT CONVENIENT TO

15 ACCOMPLISH IT ON THE RECORD, JUST A SUBSTITUTION OF THE

16 ORIGINAL.

17 THE COURT: 184, THAT IS CORRECT.

18 MR. FELDMAN: YES. WE’D JUST LIKE THE RECORD TO REFLECT

19 THAT THAT’S BEING EFFECTED.

20 THE COURT: ALL RIGHT. SO 184, THE XEROX COPY IS BEING

21 REPLACED BY THE ORIGINAL DUPLICATE; IS THAT CORRECT?

22 MR. BOYCE: IF I CAN FIND IT, YOUR HONOR.

23 THE COURT: WELL, WE’LL TAKE CARE OF THAT. PEGGY CAN

24 FIND THAT AND RE-MARK IT SO THAT IT’S PROPERLY MARKED. I DON’T

25 KNOW THAT ORALLY THE PEOPLE CONSENTED, BUT I BETTER PUT THAT ON

26 THE RECORD.

27 MR. DUSEK: THAT’S FINE.

28 THE COURT: ALL RIGHT. THANK YOU. 9246

1 MR. FELDMAN: YOUR HONOR, ALSO THE DEFENSE WANTS RELEASE

2 OF THE SUBPOENA DUCES TECUM TO RETURN TAPES TO THE MEDIA, IT

3 APPEARS TWO AT LEAST HAVE COMPLIED, TWO OUT OF EIGHT.

4 THE COURT: OKAY.

5 MR. FELDMAN: I’VE DISCUSSED WITH MR. CLARKE A RELEASE TO

6 THE DEFENSE TO REVIEW IT. IF THERE’S ANYTHING OF MERIT WE’LL

7 LET YOU KNOW, AND MR. CLARKE DOES NOT HAVE AN OBJECTION, I

8 BELIEVE. I’M TAKE IT TONIGHT AND I’LL TURN IT OVER TO HIM

9 TOMORROW.

10 THE COURT: ALL RIGHT. ANYTHING ELSE FROM COUNSEL?

11 I WANT TO ADDRESS THE MEDIA ON A POINT, AND THAT

12 IS, I’M STARTING TO BE INUNDATED WITH INQUIRIES ABOUT WHEN THIS

13 ALL COMES TO A CONCLUSION HOW MANY, IF ANY, OF THE JURORS ARE

14 YOU GOING TO BE ABLE TO GET TO. I HAVE A PLAN. I’LL BE ABLE TO

15 TALK TO YOU MORE ABOUT IT AS THIS DEVELOPS. THE BOTTOM LINE IS,

16 HOWEVER, DESPITE WHAT THE MEDIA’S ATTORNEY HAPPENS TO SAY, I

17 DON’T BELIEVE THESE JURORS ARE FAIR GAME FOR ANYBODY, AND I

18 INTEND TO OUTLINE EXACTLY HOW IT’S GOING TO BE HANDLED, AT LEAST

19 IN THIS COURTROOM WITH THESE JURORS. BUT IT’S A LITTLE

20 PREMATURE.

21 AT ANY RATE, QUIT SENDING YOUR NOTES AND MISSIVES

22 BECAUSE I AM AWARE YOU ALL WANT TO TALK TO AS MANY PEOPLE AS YOU

23 CAN. BELIEVE ME, WE’LL TRY AND ACCOMMODATE YOU.

24 OKAY. ANYTHING ELSE TILL TOMORROW MORNING?

25 MR. FELDMAN: JUST IN TERMS OF TIMING. ONE OF OUR

26 LAWYERS HAS A COURT APPEARANCE AT 9:00, IF WE COULD START AT

27 9:30, PLEASE.

28 THE COURT: IS THAT OKAY WITH THE PEOPLE? 9247

1 MR. DUSEK: WE’LL BE HERE.

2 THE COURT: WE’LL RECESS TILL 9:30 TOMORROW MORNING. THE

3 MATTER WILL BE OPEN TO THE PUBLIC IMMEDIATELY.

4 MR. DUSEK: THANK YOU, YOUR HONOR.

5 THE COURT: THANK YOU.

6

7

8 (AT 3:58 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 9:30 A.M. FRIDAY, AUGUST 2, 2002.)
9
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01083 - august 1st 2002 -Transcript of David Westerfield Trial Day 26 - afternoon 1
02082 - august 2nd 2002 -Transcript of David Westerfield Trial Day 27 - morning 2