TRIAL DAY 19 – PART 3 – afternoon 1
SAN DIEGO, CALIFORNIA, WEDNESDAY, JULY 10, 2002, 1:30 P.M. – afternoon 1
WITNESSES:
William Holmes (Continued), David K. Faulkner (Forensic entomologist, testified about insects, time of death…)
–O0O–
THE COURT: GOOD AFTERNOON, LADIES AND GENTLEMEN. WELCOME BACK.
I’VE RECEIVED A NOTE FROM ONE OF THE ALTERNATES ASKING ABOUT WHAT ARRANGEMENTS WILL BE MADE FOR THE ALTERNATES DURING DELIBERATIONS. BELIEVE ME, I CAN TELL YOU WE WILL EXPLORE THAT FULLY WITH YOU WHEN AND IF IT BECOMES APPROPRIATE. SO WE’LL COVER THAT AT A LATER TIME.
MR. FELDMAN.
MR. FELDMAN: YOUR HONOR, I WOULD LIKE TO RECALL SERGEANT HOLMES JUST BRIEFLY, PLEASE.
THE COURT: ALL RIGHT. SERGEANT.
WILLIAM HOLMES,
RECALLED AS A WITNESS BY THE DEFENDANT, PREVIOUSLY HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
MR. FELDMAN: AND, YOUR HONOR, I WOULD ASK TO HAVE MARKED AS NEXT IN ORDER ANOTHER CALENDAR PAGE.
THE COURT: OKAY.
MR. FELDMAN: IT WILL BE SMALLER THAN THE OTHER ONE, BUT THERE’S BUDGET ISSUES.
THE COURT: OKAY. THAT WILL BE 170.
(BLOWUP OF A CALENDAR PAGE FOR THE MONTH OF FEBRUARY
MARKED TRIAL EXHIBIT NUMBER 170.)
/ / /
/ / /
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DIRECT EXAMINATION
BY MR. FELDMAN:
Q.: SERGEANT, WHEN LAST WE WERE TALKING, WE HAD A BIGGER CALENDAR. BUT THIS WILL DO.
SIR, I WOULD LIKE TO DIRECT YOUR ATTENTION TO WHAT’S BEEN PREVIOUSLY MARKED 170.
A.: YES, SIR.
MR. FELDMAN: I’M SORRY, YOUR HONOR.
THE COURT: NO. I AM JUST GETTING THEM OUT OF YOUR WAY.
BY MR. FELDMAN:
Q.: GOT A RED PEN.
SIR, YOU INDICATED THAT MR. WESTERFIELD WAS FIRST DETAINED ESSENTIALLY ON FEBRUARY 4. IS THAT RIGHT? 8:50.
A.: AT WHAT TIME?
Q.: APPROXIMATELY 8:50 A.M. WAS HIS FIRST CONTACT WE’LL SAY WITH LAW ENFORCEMENT.
A.: FIRST CONTACT.
Q.: SIR, MAYBE I’LL SNATCH THE PEN.
MR. FELDMAN: FOR THE RECORD, I’M GOING TO DRAW ON 170 THE WORDS CONTACT.
BY MR. FELDMAN:
Q.: FAIR?
A.: YES, SIR.
Q.: YOU BECAME INVOLVED MORE OR LESS DIRECTLY ON THE 5TH, IS THAT A FAIR STATEMENT?
A.: BRIEFED ON THE 5TH, YES, SIR.
Q.: SURVEILLANCE CONTINUED BETWEEN THE 5TH AND THE 22ND WHEN MR. WESTERFIELD WAS ARRESTED, IS THAT RIGHT?
A.: YES, SIR. STARTED AT 2:15 IN THE MORNING ON THE 5TH AND CONTINUED UNTIL HE WAS ARRESTED.
Q.: FOR THE RECORD, I’VE DRAWN ON 170 ON THE 5TH 2:15 A.M. TO DEPICT WHEN YOU JUST TOLD ME WHEN I THINK YOU WERE BRIEFED.
A.: NO, SIR. WHEN HE — WHEN THE SURVEILLANCE STARTED.
Q.: THANK YOU.
I WROTE THE WORD 2:15 A.M. SURVEILLANCE. IS THAT ACCURATE?
A.: YES, SIR.
Q.: WE HAVE ON THE 22ND THE ARREST.
A.: YES.
Q.: AND THEN ON THE 27TH AT APPROXIMATELY — I’M SORRY. WHAT TIME?
A.: MID AFTERNOON.
Q.: 2:00 P.M. FAIR?
A.: YES, SIR.
Q.: APPROXIMATELY 2:00 P.M. ON THE 27TH DANIELLE VAN DAM WAS FOUND.
A.: YES, SIR.
MR. FELDMAN: NO FURTHER QUESTIONS.
THE COURT: ANYTHING?
MR. DUSEK: NO.
THE COURT: ALL RIGHT.
SERGEANT, —
MR. FELDMAN: THANK YOU.
THE COURT: — YOU MAY RESUME YOUR SEAT.
MR. FELDMAN: DAVID FAULKNER.
THE WITNESS: THANK YOU.
THE COURT: ALL RIGHT.
(THE WITNESS WAS EXCUSED.)
DAVID K. FAULKNER, CALLED AS A WITNESS BY THE DEFENDANT, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE CLERK: SIR, WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.
THE WITNESS: DAVID K. FAULKNER. F-A-U-L-K-N-E-R.
DIRECT EXAMINATION BY MR. FELDMAN:
Q.: GOOD AFTERNOON, SIR.
WHAT IS YOUR OCCUPATION?
A.: SORRY?
Q.: WHAT IS YOUR OCCUPATION?
A.: I’M A FORENSIC ENTOMOLOGIST.
Q.: WHAT IS AN ENTOMOLOGIST?
A.: ENTOMOLOGIST IS SOMEONE WHO STUDIES INSECTS AND RELATED INVERTEBRATES.
Q.: AND WHAT IS A FORENSIC ENTOMOLOGIST?
A.: ONE WHO APPLIES THAT SORT OF RESEARCH AND INFORMATION TO THE CRIMINAL JUSTICE SYSTEM.
Q.: SIR, I’M NOT TRYING TO BE RUDE. YOU’VE TOLD ME THAT YOU HAVE A HEARING IMPAIRMENT TO A CERTAIN EXTENT. IS THAT RIGHT?
A.: YES.
Q.: SO I’M SPEAKING LOUDLY SO IF THERE’S ANY ISSUE, JUST LET ME KNOW, PLEASE.
A.: THANK YOU.
Q.: CAN YOU TELL US, PLEASE, ABOUT YOUR EDUCATIONAL TRAINING AND BACKGROUND.
A.: I HAVE A BACHELOR’S DEGREE IN ARTS FROM THE UNIVERSITY OF CALIFORNIA IN SANTA BARBARA, AND I HAVE A MASTER’S DEGREE IN ZOOLOGY FROM CALIFORNIA STATE UNIVERSITY, LONG BEACH.
I ALSO HAVE A TEACHING CREDENTIAL FROM CALIFORNIA STATE UNIVERSITY, SAN DIEGO.
Q.: DO YOU HAVE ANY MASTER’S CERTIFICATE OR ANY HIGHER EDUCATION?
A.: I HAVE NOT WITHIN THE USUAL ACADEMIC WORLD. I HAVE BEEN CERTIFIED THROUGH THE INSTITUTE OF CRIMINAL INVESTIGATIONS TO TREAT — TEACH FORENSIC SCIENCES.
Q.: AND YOU HAVE AN M. S. IN BIOLOGY FROM CAL. STATE UNIVERSITY?
A.: YES.
Q.: WITH REGARD TO YOUR PROFESSIONAL AND ACADEMIC POSITIONS, SIR, CAN YOU TELL US WHAT IS YOUR PRESENT POSITION.
A.: WHAT I AM NOW IS SELF-EMPLOYED. BUT I’M ALSO A RESEARCH ASSOCIATE AT THE SAN DIEGO NATURAL HISTORY MUSEUM IN THE ENTOMOLOGY DEPARTMENT.
Q.: HAVE YOU BEEN AN INSTRUCTOR IN ANY AREAS?
A.: YES. I’VE BEEN INSTRUCTOR AT, AGAIN, THROUGH THE INSTITUTE OF CRIMINAL INVESTIGATION AT CALIFORNIA STATE UNIVERSITIES, SACRAMENTO AND SAN JOSE STATE, AND I’VE ALSO TAUGHT AT VARIOUS JUNIOR COLLEGES IN SAN DIEGO, ALONG WITH NATIONAL UNIVERSITY.
Q.: CAN YOU TELL ME WITH REGARD TO YOUR POSITIONS AT THE SAN DIEGO MUSEUM OF NATURAL HISTORY WHAT SORT OF POSITIONS HAVE YOU HELD.
A.: FROM 1975 UNTIL 1993 I WAS ASSISTANT CURATOR AND HEAD OF THE ENTOMOLOGY DEPARTMENT. AND THEN AGAIN FROM ABOUT 1997 UNTIL 2001 I WAS THE COLLECTION MANAGER IN THE DEPARTMENT.
Q.: HAVE YOU BEEN A MEMBER OF ANY EDITORIAL BOARDS?
A.: YES. FOR THE SAN DIEGO NATURAL HISTORY MUSEUM AND ALSO FOR A NUMBER OF ORGANIZATIONS WHICH HAVE PUBLICATIONS I DO EDITING.
Q.: SIR, DO YOU HAVE PROFESSIONAL AFFILIATIONS?
A.: YES. ENTOMOLOGICAL SOCIETY OF AMERICA. AND ALSO THE LEPIDOPTERIST SOCIETY AND A NUMBER OF OTHER GROUPS SUCH AS XERXES SOCIETY AND OTHERS WHICH ARE INTERESTED OR CONCERNED WITH CONSERVATION AND INSECTS AND OTHER INVERTEBRATES.
Q.: YOU USED THE WORD LEPIDOPTERIST. WHAT IS THAT, PLEASE?
A.: SOMEONE WHO WORKS ON BUTTERFLIES AND MOTHS.
Q.: YOU’VE ALSO ENGAGED IN RESEARCH EXPEDITIONS, IS THAT RIGHT?
A.: YES. I’VE TAKEN A NUMBER OF RESEARCH EXPEDITIONS MOSTLY TO NORTHWESTERN MEXICO, BUT ALSO TO CERTAIN COUNTRIES IN CENTRAL AMERICA, SUCH AS COSTA RICA AND HONDURAS AND ALSO SOUTHERN AFRICA AND NAMIBIA.
Q.: SIR, HAVE YOU PUBLISHED?
A.: YES. I PUBLISHED A NUMBER OF PAPERS.
Q.: IN THE AREA OF BUGS?
A.: WELL, IN THE AREA OF ENTOMOLOGY. EITHER WITH, SAY, FOR INSTANCE, POPULAR PUBLICATIONS OF GENERAL INTEREST AND MORE SPECIFICALLY ON LEPIDOPTERA IN PEER-REVIEWED JOURNALS AND ALSO IN FORENSIC ENTOMOLOGY.
Q.: SIR, DO YOU HAVE ANY CONSULTING EXPERIENCE?
A.: YES. I’VE CONSULTED BOTH IN THE ENVIRONMENTAL AREA AND ALSO IN FORENSICS FOR VARIOUS GROUPS HERE IN SAN DIEGO AND ARIZONA, ALSO NEVADA.
Q.: WHAT VARIOUS GROUPS IN SAN DIEGO?
A.: THAT WOULD BE SAN DIEGO POLICE DEPARTMENT, SAN DIEGO SHERIFF’S DEPARTMENT, AND ALSO VARIOUS LAW FIRMS.
Q.: AND THE SAN DIEGO DISTRICT ATTORNEY’S OFFICE, —
A.: YES.
Q.: — IS THAT RIGHT?
AND HAVE YOU QUALIFIED TO TESTIFY AS AN EXPERT WITNESS IN ANY OF OUR COURTS?
A.: YES.
Q.: IN THE AREA OF FORENSIC ENTOMOLOGY?
A.: YES.
Q.: AND IN THE AREA OF FORENSIC ENTOMOLOGY AS IT RELATES TO TIME OF DEATH?
A.: YES.
Q.: AND HAVE YOU SPECIFICALLY TESTIFIED AS A WITNESS FOR JEFF DUSEK?
A.: YES.
Q.: WITH REGARD TO YOUR RESEARCH ACTIVITY SKILLS — I’M SORRY — RESEARCH ACTIVITIES, ARE THERE ANY THAT YOU ARE DOING IN PROGRESS?
A.: THE THINGS THAT I’M INVOLVED IN RIGHT NOW AGAIN LIVE HISTORY STUDIES WITH CERTAIN GROUPS OF INSECTS AND ALSO TRYING TO DETERMINE DIFFERENT SPECIES ABUNDANCE AND DISTRIBUTION OF INTRINSICALLY IMPORTANT INSECTS IN SAN DIEGO COUNTY.
Q.: AND WITH REGARD TO PROFESSIONAL PRESENTATIONS, HAVE YOU MADE ANY, SIR?
A.: QUITE A FEW. MOSTLY THROUGH THE ENTOMOLOGICAL SOCIETY OF AMERICA, BUT ALSO THROUGH THE AMERICAN ACADEMY OF FORENSIC SCIENCES AND ALSO FOR VARIOUS POLICE INVESTIGATIVE GROUPS.
Q.: INCLUDING THE SAN DIEGO POLICE DEPARTMENT HOMICIDE INVESTIGATORS PRESENTATION?
A.: YES.
Q.: INCLUDING FOR THE DRUG ENFORCEMENT ADMINISTRATION?
A.: YES.
Q.: INCLUDING FOR SAN DIEGO COUNTY EVIDENCE TECHNICIANS?
A.: YES.
Q.: WITH REGARD TO YOUR FORENSIC EXPERIENCE, SIR, YOUR PRIMARY — YOU’VE BEEN RETAINED TO CONSULT BY BOTH THE PROSECUTION AND THE DEFENSE, IS THAT A FAIR STATEMENT?
A.: YES.
Q.: IN CRIMINAL CASES. BUT YOU ALSO HAVE BEEN RETAINED TO DO WORK, YOUR PROFESSIONAL WORK, IN CIVIL CASES AS WELL, IS THAT RIGHT, SIR?
A.: YES.
Q.: WITH REGARD TO THE CRIMINAL CASES, YOUR PRIMARY CONSULTATION EXPERIENCE HAS OCCURRED FOR THE PROSECUTION, ISN’T THAT RIGHT?
A.: YES.
Q.: AND YOU’VE DONE SOME WORK FOR THE DEFENSE, BUT IT LOOKS TO BE ABOUT WHAT, — WELL, IS IT FAIR TO SAY THAT ON 196 OCCASIONS OR SO APPROXIMATELY YOU’VE BEEN CONSULTED BY THE PROSECUTION?
A.: YES.
Q.: AND IN ABOUT 39 CASES YOU’VE BEEN CONSULTED BY THE DEFENSE, IS THAT RIGHT?
A.: THAT’S CORRECT.
Q.: SPECIFICALLY, SIR, WERE YOU IN THIS CASE REQUESTED TO PARTICIPATE IN ANY ASPECT OF THE INVESTIGATION OF THE DISAPPEARANCE OF DANIELLE VAN DAM?
A.: YES, I WAS.
Q.: AND CAN YOU TELL US HOW DID YOUR INVOLVEMENT COME, COME TO PASS?
A.: I WAS CONTACTED THE MORNING OF THE 28TH OF FEBRUARY OF THIS YEAR TO SEE WHAT MY AVAILABILITY WAS TO ATTEND AUTOPSY AND LATER ON TO GO TO THE CRIME SCENE OR THE SCENE WHERE THE BODY WAS RECOVERED TO INVESTIGATE THAT AREA FOR INSECT ACTIVITY.
Q.: SO WE’VE HEARD THE NAME DAVID FAULKNER REFERRED TO IN CONNECTION WITH — BY, FOR INSTANCE, DR. BLACKBOURNE AT THE AUTOPSY. YOU’RE THE DAVID FAULKNER WHO WAS PRESENT AT AUTOPSY, SIR?
A.: YES.
Q.: YOU WERE INVITED BY THE MEDICAL EXAMINER’S OFFICE, THEN, TO COME PARTICIPATE IN THE AUTOPSY?
A.: I WAS INVITED BY DOREEN SAVAGE.
Q.: A LAW ENFORCEMENT PERSON NAMED DORIE SAVAGE?
A.: DOREEN SAVAGE.
Q.: ALL RIGHT.
AND DID YOU IN FACT GO TO THE AUTOPSY?
A.: YES. I WAS THERE AT 10:00 O’CLOCK IN THE MORNING.
Q.: WHAT DID YOU DO AT THE AUTOPSY?
A.: THE MAIN THING WAS TO OBSERVE AND COLLECT ANY SORT OF INSECT MATERIAL THAT WAS FOUND WITH THE REMAINS.
Q.: WHY?
A.: INSECTS IF COLLECTED PROPERLY AND PRESERVED AND EVALUATED CAN BE OF IMPORTANCE IN DETERMINING VARIOUS ASPECTS OF DEATH.
Q.: WHAT VARIOUS ASPECTS OF DEATH?
A.: SUCH AS WHETHER OR NOT A BODY HAS BEEN MOVED FOLLOWING DEATH, TIME OF DEATH, WHICH WOULD BE A POST-MORTEM INTERVAL. IT CAN BE INFERRED FROM LOOKING AT THE VARIOUS DEVELOPMENTAL STAGES OF INSECTS.
Q.: AND, IN FACT, THAT’S A PARTICULAR AREA ABOUT WHICH YOU HAVE EXPERTISE; THAT IS, TIME OF DEATH, THE POST-MORTEM INTERVAL AND INSECT DEVELOPMENT.
A.: YES.
Q.: SO YOU WENT TO THE AUTOPSY. DID YOU SEE IN ADDITION TO DR. BLACKBOURNE, DID YOU SEE ANYBODY ELSE AT THE AUTOPSY?
A.: THERE WERE A NUMBER OF PEOPLE THERE. DOREEN SAVAGE WAS ONE PERSON I DEALT WITH. ALSO DR. SKIP SPERBER WAS THERE LATER ON.
Q.: OKAY.
SO YOU WERE ABLE TO COLLECT INSECTS AT THE AUTOPSY, RIGHT?
A.: YES.
Q.: AND THEY WERE — DID YOU COLLECT ALL THE INSECTS YOU COULD?
A.: I COLLECTED A FAIR NUMBER OF INSECTS. I BELIEVE A VERY GOOD REPRESENTATION OF BOTH THE VARIOUS DIVERSITY OF THE INSECTS AND ALSO STAGES IN DEVELOPMENT.
Q.: AND THEN I THINK YOU JUST TOLD ME THAT YOU HAD THE OPPORTUNITY TO GO TO THE CRIME SCENE OR THE RECOVERY SCENE. IS THAT RIGHT?
A.: YES.
Q.: WHEN WAS THAT, DO YOU RECALL?
A.: THAT WAS ABOUT 4:00 O’CLOCK IN THE AFTERNOON I ARRIVED OUT NEAR SINGING HILLS.
Q.: THAT WOULD BE ON THE 28TH?
A.: YES.
Q.: WHEN YOU ARRIVED AT SINGING HILLS, SIR, WHAT, IF ANYTHING, DID YOU SEE?
A.: WELL, THERE WERE — SEEMED TO BE A LOT OF ATTENTION IN THE AREA. THE ROAD WAS BLOCKED OFF, AND I HAD TO SAY WHO I WAS AND TO GET INTO THE AREA. AND I FOUND AN INVESTIGATING OFFICER, I’M NOT SURE OF THE NAME, AND ASKED TO SEE WHERE THE AREA WHERE THE BODY WAS ACTUALLY RECOVERED. I WAS TAKEN TO THAT SPOT, AND THEN I WAS ALLOWED TO LOOK AT THAT AREA FOR ANY SORT OF EVIDENCE OF INSECT ACTIVITY.
Q.: SO I THINK YOU’RE TELLING US LAW ENFORCEMENT ACTIVELY ASSISTED YOU IN DOING YOUR WORK AT THE RECOVERY SITE. IS THAT RIGHT?
A.: YES.
Q.: THEY POINTED OUT TO YOU WHERE THE BODY HAD BEEN LOCATED?
A.: POINTED OUT TO ME, ACTUALLY OUTLINED THE POSITION OF THE BODY.
Q.: SO THEY SHOWED YOU EXACTLY WHERE THEY FOUND THE BODY?
A.: YES.
Q.: AND WHAT DID YOU DO THERE?
A.: A NUMBER OF THINGS. TOOK AIR TEMPERATURE, SEARCHED THE AREA TO SEE FROM THE POSITION WHERE THE BODY WAS, HAD BEEN LYING, WAS TO TRY TO DETERMINE IF INSECTS HAD BEEN THERE. OFTENTIMES THEY ESCAPE BY VEGETATION OR INTO THE SOIL. AND SO I DUG DOWN INTO THE SOIL A BIT AND AGAIN TRYING TO LOOK FOR ANY SORT OF INSECTS THAT MIGHT HAVE REMAINED.
Q.: AND WHY DO YOU LOOK FOR INSECTS AT THE SCENE?
A.: AGAIN THIS IS PART OF THE COMPLETE LOOK AT A CRIME SCENE. YOU WANT TO COLLECT AS MUCH MATERIAL BOTH AT THE SCENE WHERE A BODY IS RECOVERED AND ALSO LATER IN ORDER TO GET THE LARGEST SAMPLE POSSIBLE.
Q.: WITH REGARD TO THIS PARTICULAR SCENE, HAVE YOU EVER HAD AS COMPLETE AN OPPORTUNITY TO WORK A CRIME SCENE UP OR DO AS EXTENSIVE WORK AS YOU WERE PROVIDED IN THIS CASE?
A.: NOT AS EXTENSIVE AS IN THIS CASE. I WAS THERE FROM AUTOPSY AND THEN THE CRIME SCENE AND THEN ALLOWED TO EVALUATE OTHER MATERIALS LATER ON. SO IT WAS A PRETTY COMPLETE EFFORT ON MY PART TO TRY TO ASSEMBLE MATERIAL.
Q.: AND CERTAINLY FROM TIME TO TIME A QUESTION MIGHT ARISE IN YOUR MIND AS TO WHAT MAY HAVE HAPPENED. IS THAT A FAIR STATEMENT?
A.: YES.
Q.: WOULD YOU THEN CONTACT, FOR INSTANCE, DR. BLACKBOURNE CONCERNING ANY ASPECT OF WHAT YOU MIGHT HAVE A QUESTION ABOUT?
A.: YES. IT’S AN ONGOING INVESTIGATION, SO I FEEL PRETTY FREE TO CONTACT ANY OF THE FORENSIC INVESTIGATORS OR POLICE INVOLVED OR DR. BLACKBOURNE.
Q.: YOU PREPARED A REPORT IN THIS CASE, DID YOU NOT?
A.: YES, I DID.
Q.: THAT REPORT WAS PREPARED SOME MONTHS AGO, WASN’T IT?
A.: YES.
Q.: AND YOU PROVIDED COPIES OF THAT REPORT TO THE DISTRICT ATTORNEY’S OFFICE?
A.: YES.
Q.: I THINK THAT REPORT’S DATED APRIL THE 6TH OR THEREABOUTS. IS THAT A FAIR STATEMENT?
A.: YES.
Q.: ALSO BEFORE YOU CAME TO COURT TODAY, DID YOU MEET WITH ANY REPRESENTATIVES OF THE DISTRICT ATTORNEY’S OFFICE CONCERNING ANY ASPECT OF YOUR TESTIMONY?
A.: YES, I DID.
Q.: WITH WHOM DID YOU MEET?
A.: WITH JEFF DUSEK.
Q.: HOW MANY TIMES?
A.: JUST ONCE TODAY.
Q.: HAVE YOU SPOKEN TO HIM CONCERNING THE SUBJECT MATTER OF YOUR TESTIMONY WITHIN THE PAST TWO WEEKS?
A.: YES.
Q.: WHILE THE PROSECUTION’S CASE WAS PENDING, YOU SPOKE WITH MR. DUSEK?
A.: I SPOKE WITH JEFF DUSEK.
Q.: SIR, WHAT’S OVA POSITION?
A.: OVA POSITION IS THE TERM APPLIED TO THE DEPOSITION OF EGGS BY INSECTS.
Q.: AND OF WHAT CONSEQUENCE IS OVA POSITION?
A.: WELL, MANY INSECTS DEPOSIT EGGS. SOME INSECTS DO NOT DEPOSIT EGGS, BUT IT’S OFTENTIMES USED AS A STARTING POINT FOR THE DEVELOPMENT AND DETERMINATION OF LIFE HISTORY OF INSECTS.
(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MS. SCHAEFER.)
BY MR. FELDMAN:
Q.: I’M SORRY. I THINK I PROBABLY JUMPED AHEAD OF MYSELF.
WITH REGARD TO THE INSECTS THAT YOU COLLECTED, LET ME ASK YOU FIRST: DO YOU HAVE AN INDEPENDENT RECOLLECTION OF THE INSECTS THAT YOU COLLECTED?
A.: I HAVE A PRETTY GOOD IDEA, YES.
Q.: CAN YOU TELL US, PLEASE, WHAT INSECTS DID YOU COLLECT AT AUTOPSY.
A.: AT AUTOPSY THERE WAS, AS WOULD BE EXPECTED IN MANY DEATH INVESTIGATIONS, IS YOU HAVE A VARIETY OF INSECTS AVAILABLE. AND ALSO VARIOUS STAGES OF DEVELOPMENT. THERE WERE A NUMBER OF BEETLES. AND WHEN I SAY BEETLES, I MEAN ADULT BEETLES. THINGS WE CALL HISTER BEETLES. THERE WERE, I BELIEVE, SOME STAPHYLINIDAE BEETLES AND WHICH ARE ALSO CALLED ROVE BEETLES. THERE WERE DERMESTES BEETLES. THERE WAS AN EXAMPLE OF WHAT I CALL A RED-LEGGED HAM BEETLE.
AND THEN BESIDES THAT THERE WERE A NUMBER OF FLIES, BOTH ADULT FLIES WHICH WERE ASSOCIATED WITH THE REMAINS, AND ALSO LARVAL STAGES OF FLIES. OUT OF THIS THERE WERE WHAT I CALL CHEESE SKIPPERS, FAMILY PIOPHILIDAE, WHICH IS OFTEN FOUND WITH REMAINS. AND ALSO VARIOUS SPECIES OF BLOW FLIES AND BOTTLE FLIES.
MR. FELDMAN: JUST FOR SPELLING PURPOSES, MAY I MAKE INQUIRY OF THE REPORTER?
THE COURT: CERTAINLY.
MR. FELDMAN: I’M SORRY. DO YOU NEED — MAY I ASK DO YOU NEED, PLEASE, A COPY OF THE LIST OF THE INSECTS?
THE REPORTER: YES, PLEASE.
MR. FELDMAN: CAN IT WAIT UNTIL. . .
THE REPORTER: YES.
MR. FELDMAN: THANK YOU.
THANK YOU, YOUR HONOR.
THE COURT: I’M SURE HE THANKS YOU AS WELL.
BY MR. FELDMAN:
Q.: I THINK YOU STARTED TO MENTION LARVAL STAGES OF DEVELOPMENT. I WANT YOU TO TELL ME WHETHER THIS IS PREMATURE OR NOT BECAUSE I WANT TO MAKE SURE THIS FLOWS CORRECTLY.
YOU PREPARED A CHART, IS THAT RIGHT?
A.: THAT’S A CHART I BROUGHT IN, YES.
Q.: SHOULD WE WAIT TO SHOW THIS OR IS NOW AN APPROPRIATE TIME?
A.: I DON’T KNOW.
Q.: OKAY. THANKS.
MR. FELDMAN: I WOULD ASK TO HAVE MARKED AS NEXT IN
ORDER —
THE COURT: ALL RIGHT. 171.
(DIAGRAM MARKED TRIAL EXHIBIT NUMBER 171 FOR
IDENTIFICATION.)
MR. FELDMAN: SIR, SHOULD I REMOVE IT FROM THE ENCLOSED —
THE WITNESS: (THE WITNESS NODDED HIS HEAD.)
THE COURT: THERE MAY BE SOME BEHIND YOUR BOARD HERE, MR. FELDMAN.
MR. FELDMAN: OKAY.
THE BAILIFF: THERE ARE SOME BACK THERE.
MR. FELDMAN: THANK YOU.
BY MR. FELDMAN:
Q.: SIR, I’VE HAD MARKED AS 171 — IS 171 THE EXHIBIT YOU PREPARED?
A.: YES.
Q.: BEFORE I GO TO 171, SIR, I THINK YOU TOLD US THE 28TH WAS THE DAY YOU ATTENDED THE AUTOPSY. IS THAT RIGHT?
A.: YES.
Q.: SO I’M GOING TO WRITE ON 170 AUTOPSY.
THE COURT: DO YOU SEE ANY UP THERE?
MR. FELDMAN: YES, I DO, AS A MATTER OF FACT.
THE COURT: OKAY.
BY MR. FELDMAN:
Q.: DIRECTING YOUR ATTENTION TO 171, SIR, YOU’RE WELCOME TO STAND UP, USE THE POINTERS, WHATEVER YOU THINK IS APPROPRIATE.
WHAT DO YOU MEAN TO DEPICT IN 171?
A.: THIS PARTICULAR DIAGRAM IS COMMONLY USED TO DISCUSS DEVELOPMENTAL STAGES IN INSECTS, SPECIFICALLY IN THIS CASE FLIES. AGAIN I SHOULD MENTION THIS IS NOT A SPECIFIC FLY SPECIES; THIS IS A GENERALIZED OVERVIEW WHICH MOST OF THE FORENSICALLY IMPORTANT FLIES TEND TO GO THROUGH.
JUST TO POINT THESE VARIOUS STAGES OUT, AND IT’S NOT NECESSARILY LINEAR, IT ACTUALLY GOES IN A CIRCLE, YOU START AT ONE POINT, YOU END UP AT THAT POINT EVENTUALLY. BUT I THINK THIS WILL CLARIFY WHAT’S ACTUALLY GOING ON WITH THE INSECT DEVELOPMENT.
YOU START OFF AT A CERTAIN POINT IN TIME WITH THE EGG STAGE OR SOMETIMES WITH MAGGOTS. NOW, THESE ARE DEPOSITED RIGHT ON A SOURCE FOR THE LARVAL STAGES, SOMETHING THAT THE MAGGOTS OR LARVAE CAN EAT. THE EGGS AFTER A CERTAIN PERIOD OF TIME IN MATURING WILL HATCH OUT INTO A LARVA. THE LARVA STARTS FEEDING. THE LARVA WILL GROW AND DEVELOP. IT REACHES A CERTAIN SIZE, AND IT MOLTS. AND THEN IT STARTS —
Q.: I’M SORRY. MOLTS. I DON’T UNDERSTAND THE TERM, PLEASE.
A.: MOLTING JUST MEANS IT SHEDS ITS SKIN. IT HAS TO GET OUT OF THAT, OTHERWISE IT WOULD BE CONSTRICTED IN THAT PARTICULAR SIZE.
AND THEN IT AGAIN STARTS FEEDING AND GROWING. AND IT GETS TO A CERTAIN SIZE AND HAS TO MOLT A SECOND TIME. AND IT BECOMES WHAT WE CALL THE THIRD INSTAR. JUST A TERM WE USE FOR THAT PARTICULAR POINT IN DEVELOPMENT.
AND THEN IT FEEDS, AND AT A CERTAIN TIME WHEN THAT MAXIMUM SIZE HAS BEEN REACHED FOR THAT LARVA OF THAT SPECIES, THEN IT WILL OFTENTIMES MOVE AWAY FROM THE HOST AND LOOK FOR A PLACE TO PUPATE. THAT WE REFER TO —
Q.: SIR, I’M SORRY. PUPATE.
A.: THAT WE REFER TO AS THE POST-FEEDING OR PRE-PUPAL STAGE. SO YOU HAVE THE EGG, AND THEN YOU HAVE THESE THREE DIFFERENT PARTS OF THE LARVAL DEVELOPMENT. AND THEN YOU HAVE THIS OTHER PART WHERE THEY MOVE AWAY AND THEY PUPATE.
PUPATION IS WHERE IN A SENSE A MAGGOT SHRINKS UP A BIT. THE CUTICLE IS CHITINIZED; IT HARDENS UP; IT STIFFENS. IT’S A PROTECTIVE LAYER. AND THEN OVER TIME THAT WILL DARKEN. SO IT MAY BE VERY WHITISH OR CREAM-COLORED INITIALLY, AND EVENTUALLY IT MAY BE DARK BROWN OR BLACK, SOMETIMES REDDISH. AGAIN DEPENDING ON THE SPECIES. AND ONCE THEY GET TO THIS POINT, THEY WILL STAY IN THAT PARTICULAR STAGE UNTIL THE ADULT INSECT HATCHES OUT, MATING WILL OCCUR, AND THE CYCLE WILL START OVER AGAIN.
Q.: A COUPLE OF — ACTUALLY SEVERAL TERMS YOU USED. I’M NOT SURE BECAUSE YOU’RE MOVING PRETTY QUICK.
YOU USED THE TERM CHITINIZED. WHAT DOES THAT MEAN?
A.: CHITINIZED JUST MEANS THAT THE CUTICLE OF INSECTS IS CHITIN.
Q.: JUST A MINUTE. I’M SORRY. SHOULD HAVE STARTED FROM REVERSE.
WHEN YOU SAY THE CUTICLE OF AN INSECT, WHAT IS THE CUTICLE OF AN INSECT?
A.: I GUESS IN COMPARISON WOULD PROBABLY JUST BE THE SKIN.
Q.: OKAY.
A.: SO IT’S LIKE YOUR FINGERNAIL. IT’S SUBSTANCE THAT’S PRETTY MUCH SPECIALIZED AND USES THE EXTERNAL, THE OUTSIDE COVERING OF INSECTS.
Q.: SO THEN YOU JUST TOLD US THE CUTICLE WAS CHITINIZED. CAN YOU —
A.: CHITIN. IT CAN BE VERY HARDENED AT CERTAIN TIMES IN DEVELOPMENT, PARTICULARLY DURING THE PUPAL STAGE.
Q.: YOU JUST TOLD ME IT’S MADE OF CHITIN, BUT I DON’T KNOW WHAT CHITIN IS.
A.: CHITIN IS THE SUBSTANCE THAT FINGERNAILS ARE MADE OUT OF.
Q.: SO WITH REGARD TO THE DEVELOPMENT, I THINK YOU JUST TOLD US THERE WERE THREE PARTS OF LARVAL DEVELOPMENT.
A.: YES.
Q.: THEY ARE?
A.: THEY ARE THE — WHAT I TERMED THE FIRST INSTAR AND THE SECOND INSTAR AND THE THIRD INSTAR. AND AGAIN THESE ARE BASED ON DIFFERENT FEATURES OF THE MAGGOT, DIFFERENT CONFIGURATIONS. SO YOU’RE GOING FROM SMALL TO LARGE AS THEY FEED AND MATURE.
Q.: ARE THERE STUDIES WITH REGARD TO CERTAIN SPECIES OF INSECT THAT IDENTIFY OR ARTICULATE THE TIME INTERVAL BETWEEN THE DEVELOPMENT OF, I DON’T KNOW, FIRST INSTAR, SECOND INSTAR, OR OVA POSITION AND DEVELOPMENT?
A.: THERE ARE MANY STUDIES THAT HAVE BEEN DONE, BOTH LOCALLY AND AROUND THE WORLD, ON VARIOUS SPECIES AS TO HOW LONG IT TAKES THEM TO DEVELOP. AND THESE ARE USUALLY UNDER CONTROLLED CONDITIONS. AND TRYING TO DETERMINE SORT OF HOW QUICKLY THEY CAN DEVELOP GIVEN CERTAIN CONDITIONS OF HUMIDITY, TEMPERATURE, FOOD SUPPLY, THINGS LIKE THAT.
Q.: IN THIS PARTICULAR CASE DID YOU ATTEMPT TO COLLECT ENOUGH OF THE BUGS TO BE ABLE TO FORM OPINIONS AT THE REQUEST OF LAW ENFORCEMENT CONCERNING TIME OF DEATH?
A.: YES, I DID.
Q.: AND YOUR RETENTION ORIGINALLY WAS BY LAW ENFORCEMENT FOR THE SPECIFIC PURPOSE OF IDENTIFYING AS BEST YOU COULD A TIME OF DEATH.
A.: WELL, THE COLLECTION WAS IN TWO AREAS. ONE CONCERNED PRESERVED SPECIMENS WHICH WERE AGAIN PRESERVED AT AUTOPSY, AND THEN A SECOND GROUP OF SPECIMENS REPRESENTED WHAT WAS PRESERVED WERE REARED TO THE ADULT STAGE.
Q.: WHY DID YOU REAR THEM TO THE ADULT STAGE?
A.: THAT’S OFTEN DONE TO COMPARE YOUR IDENTIFICATIONS. SOMETIMES YOU HAVE A LARGE NUMBER OF LARVAE, AND MANY OF THESE THINGS ARE VERY SIMILAR SUPERFICIALLY, AND YOU MAY NOT WANT TO LOOK AT ALL ONE HUNDRED OR TWO HUNDRED SPECIMENS. AND SO YOU’RE — WHEN THE ADULTS COME OUT, YOU CAN VERY QUICKLY SEE THAT CERTAIN SPECIES MAY OR MAY NOT BE INCLUDED IN THE SAMPLE YOU COLLECTED.
Q.: AND ANOTHER REASON I GUESS TO GROW IS TO MAKE SURE YOU’RE NOT MISSING ANYTHING, IS THAT RIGHT?
A.: YES. THAT’S PROBABLY THE MOST IMPORTANT ASPECT.
Q.: AND I FORGOT TO ASK YOU: WHEN LAW ENFORCEMENT AT THE SCENE TOLD YOU SPECIFICALLY WHERE THE BODY WAS, AND I THINK YOU TOLD US SHOWED YOU AN OUTLINE, DID YOU EXAMINE A PARTICULAR AREA THAT THEY DIRECTED YOU TO?
A.: YES.
Q.: WHAT AREA WAS THAT, SIR?
A.: IT WAS —
Q.: LET ME TRY THAT A DIFFERENT WAY.
I THINK I WILL TRY THIS TOP TO BOTTOM. FIRST OF ALL, SIR, DIRECTING YOUR ATTENTION TO WHAT APPEARS TO BE COURT EXHIBIT 3. IT’S LABELED RECOVERY SITE. DOES THIS, SIR, APPEAR TO BE THE AREA OF SINGING HILLS, APPROXIMATELY, WHERE YOU WENT?
A.: YES.
Q.: AND WE SEE ALREADY CIRCLED ON 3 SOMETHING THAT SAYS 5GH AND 5B AND 5F. DOES THE CIRCLES ON THE EXHIBIT WHICH IS PHOTOGRAPH B OF 3 DEPICT GENERALLY THE AREA WHERE YOU WENT?
A.: WELL, GENERALLY THE AREA. SPECIFICALLY I WAS MORE UNDER THE VEGETATION, UNDER THE TREES.
Q.: SPECIFICALLY DIRECTING YOUR ATTENTION TO WHAT’S BEEN PREVIOUSLY MARKED COURT’S 4, YOU JUST MADE A REFERENCE TO ME THAT SAID THAT YOU WERE SPECIFICALLY DIRECTED TO THE AREA AROUND THE TREES OR UNDER THE TREES.
A.: YES.
Q.: DOES ANY OF THE PHOTOGRAPHS OR DO ANY OF THE PHOTOGRAPHS DEPICTED IN 4 DEMONSTRATE WHAT YOU MEANT TO COMMUNICATE?
A.: YES. FROM THAT PARTICULAR CHART IT WOULD BE B AND C.
Q.: OKAY.
SO IN B AND C DO YOU SEE EXACTLY — DO YOU SEE THE AREA THAT YOU HAD TO GO TO?
A.: YES.
Q.: I’M GOING TO HAND YOU THE CHART. WELL, MAYBE I WON’T DO THAT.
IF YOU COULD, PLEASE, I WILL HOLD IT, HOWEVER YOU WANT TO DO IT. THERE’S MARKERS AT — YES. COULD YOU PLEASE CIRCLE THE AREA IN B AND C THAT YOU SEE THAT YOU INSPECTED.
A.: PRETTY MUCH RIGHT IN HERE. IN THIS AREA RIGHT IN HERE.
MR. FELDMAN: YOUR HONOR, FOR THE RECORD THE WITNESS HAS USED AN ORANGE MARKER.
BY MR. FELDMAN:
Q.: SIR, MAYBE WE HAVE A BLACK MARKER OR SOMETHING BECAUSE THE ORANGE ISN’T SHOWING TOO WELL ON THIS.
A.: (THE WITNESS MARKED ON THE EXHIBIT.)
MR. FELDMAN: YOUR HONOR, FOR THE RECORD, IN 4, B AND C, THE WITNESS HAS BOTH ORANGE CIRCLED AND BLACK CIRCLED THE AREA THAT HE WAS REFERRING TO.
BY MR. FELDMAN:
Q.: DIRECTING YOUR ATTENTION TO WHAT’S BEEN PREVIOUSLY MARKED 97, DOES 97-A APPEAR GENERALLY, NOT SPECIFICALLY, GENERALLY, TO DEPICT THE AREA WHERE YOU DID THE BUG RECOVERY?
A.: IT’S GENERALLY THE AREA, YES.
Q.: BY THE WAY, WHEN YOU WERE OUT — YOU WENT OUT TO SINGING HILLS. WHEN YOU WENT OUT THERE, YOU’RE TRAINED TO RECOGNIZE POISON IVY AND POISON OAK, AREN’T YOU?
A.: I KNOW WHAT POISON OAK IS.
Q.: AND YOU’VE HAD SOME EXPERIENCE WITH POISON OAK IN THE PAST, IS THAT RIGHT?
A.: I HAVE HAD A LOT OF PERSONAL CONTACT WITH POISON OAK, YES.
Q.: IN THIS PARTICULAR CASE, ON THE 28TH OF FEBRUARY, YOU HAD SOME PERSONAL CONTACT WITH POISON OAK, IS THAT RIGHT?
A.: YES. I REACTED TO IT.
Q.: IS THERE SOMETHING ABOUT — THERE’S A SPECIAL — NOW, YOU AND I HAVE TALKED BEFORE TODAY, THAT’S A FAIR STATEMENT, ISN’T IT?
A.: YES.
Q.: YOU DESCRIBED SOMETHING, IF IT’S GOT THREE LEAVES YOU NEED TO BE AWARE OF IT, BUT YOU HAD A PHRASE THAT WENT WITH THAT. WHAT WAS THE PHRASE, DO YOU RECALL?
A.: YES. LEAVES OF THREE, LET IT BE.
Q.: OKAY.
WITH REGARD TO LEAVES OF THREE, THAT MEANS TO COMMUNICATE POISON IVY AND POISON OAK, IS THAT RIGHT?
A.: IN THIS AREA IT WOULD BE POISON OAK SPECIFICALLY.
Q.: BUT AREN’T THERE CIRCUMSTANCES WHERE POISON OAK CAN EXIST EVEN WITHOUT LEAVES OF THREE?
A.: THEY LOSE THEIR LEAVES DURING THE WINTER, SO OFTENTIMES YOU JUST HAVE THE STEMS.
Q.: WHAT HAPPENED TO YOU THIS TIME?
A.: IT WAS MOSTLY STEMS.
Q.: OKAY.
SO BECAUSE OF THE TIME OF YEAR EVEN THOUGH THERE WASN’T THE LEAVES, YOU CAUGHT POISON OAK, IS THAT RIGHT?
A.: YEAH. THERE WERE SOME LEAVES, BUT THEY WERE MOSTLY STEMS.
Q.: AND SINCE YOU’VE BEEN EXPOSED TO IT IN THE PAST, YOU WERE PROBABLY BEING CAREFUL NOT TO GET EXPOSED TO IT AGAIN.
A.: IT WAS A LITTLE LATE WHEN I REALIZED WHAT PLANT WAS THERE.
Q.: ALL RIGHT. CAREFUL, JUST NOT CAREFUL ENOUGH.
WITH REGARD TO POISON OAK, HOW DOES IT AFFECT YOU; WHAT HAPPENS TO YOU?
MR. DUSEK: OBJECTION. RELEVANCY, YOUR HONOR.
THE COURT: I DON’T KNOW IF IT IS OR NOT, BUT YOU CAN ANSWER THAT.
THE WITNESS: I HAVE A SKIN REACTION, DERMAL REACTION, WITH BLISTERING.
BY MR. FELDMAN:
Q.: AND IS THAT YOUR, AT LEAST BASED ON YOUR TRAINING AND EXPERIENCE, CONSISTENT WITH MANY OTHERS WHO COME IN CONTACT WITH POISON OAK?
A.: IT’S JUST HOW I REACT TO IT AT THIS POINT.
Q.: ALL RIGHT.
ARE THERE PARTICULAR INSECTS THAT YOU LOOK TO FOR THE PURPOSE OF ATTEMPTING TO DETERMINE THE POST-MORTEM INTERVAL?
A.: THERE’S — IN A COLLECTION THERE ARE CERTAIN INSECTS THAT ARE MORE VALUABLE IN BEING ABLE TO ESTIMATE A TIME WHEN THE INSECTS WERE ASSOCIATED WITH THE REMAINS WHICH OFTENTIMES CAN BE DIRECTLY RELATED TO THE P.M.I. OR POST-MORTEM INTERVAL.
Q.: WE ARE USING THE TERM POST-MORTEM INTERVAL, BUT WHAT THAT MEANS TO COMMUNICATE IS TIME OF DEATH, IS THAT RIGHT?
A.: ULTIMATELY, YES, THE TIME OF DEATH.
Q.: ALL RIGHT.
WHAT INSECTS DO YOU LOOK FOR FOR PURPOSES OF ATTEMPTING TO DETERMINE TIME OF DEATH?
A.: THE INSECTS THAT USUALLY GIVE YOU THE MOST INFORMATION ARE USUALLY THE DEVELOPMENTAL STAGES OF FLIES.
Q.: ANY PARTICULAR FLIES?
A.: COULD ACTUALLY BE ANY SPECIES THAT’S ASSOCIATED WITH ANIMAL DECOMPOSITION, BUT MOSTLY CONSISTING OF THREE DIFFERENT FAMILIES OF FLIES WHICH ARE COMMONLY FOUND IN ASSOCIATION WITH ANIMAL REMAINS.
Q.: WHAT ARE THOSE FAMILIES OF FLIES CALLED?
A.: ONE OF THE FAMILIES WOULD BE IN — WOULD INCLUDE THINGS LIKE HOUSE FLIES. AND THESE ARE THE MUSCIDS, WHICH ARE NOT THAT COMMON ON ANIMAL REMAINS, BUT ARE FOUND FROM TIME TO TIME.
THE SECOND GROUP ARE WHAT WE CALL SARCOPHAGES. AND THE SARCOPHAGES ARE FLESH FLIES. AND IN THE SOUTHWESTERN UNITED STATS AND PARTICULARLY DURING THE WARMER TIMES OF THE YEAR, THEY ARE PRETTY IMPORTANT.
THE MOST IMPORTANT GROUP, THOUGH, TEND TO BE WHAT WE CALL THE CALLIPHORA FLIES, WHICH ARE YOUR BLOW FLIES AND BOTTLE FLIES, WHICH ARE VERY, VERY COMMON, BOTH IN URBAN SETTINGS AND IN RURAL SITUATIONS. AND THAT PROBABLY IS THE ONE WE LOOK AT THE MOST TO SET UP A TIME FOR THEIR DEVELOPMENT.
Q.: OKAY.
WHAT I WANT TO DO IS HAVE YOU TELL US — I’M SORRY. I DON’T —
MR. FELDMAN: JUST BLANK WHITE PAPER, YOUR HONOR. THATAWAY?
BY MR. FELDMAN:
Q.: I’M GOING TO ASK YOU TO DESCRIBE THE FLIES. WE ARE GOING TO WRITE THEM DOWN. SHALL I PUT THIS DOWN OR DO YOU WANT TO REFER TO WHAT’S BEEN PREVIOUSLY MARKED 1717?
A.: THAT SHOULD BE FINE.
MR. FELDMAN: YOUR HONOR, I’M GOING TO ASK TO HAVE MARKED IN ORDER WHAT WILL BE —
THE COURT: 172.
MR. FELDMAN: THANK YOU VERY MUCH. A DOCUMENT.
(LIST OF FLIES MARKED TRIAL EXHIBIT NUMBER 172 FOR
IDENTIFICATION.)
BY MR. FELDMAN:
Q.: I’M PLACING ON THE BOARD — IT’S REALLY CRAMPED. I’M SORRY. I’M PLACING ON THE BOARD NUMBER 172. YOU JUST TOLD ME, SIR, THAT THERE WERE THREE PARTICULAR SPECIES UPON WHICH YOU RELY TO EVALUATE THE TIME OF DEATH. YOU TOLD US ONE WAS CALLED SARCOPHAGES; THE OTHER WAS I WROTE CALLIPHORA FLIES, AND THE OTHER IS BLOW FLIES. WHAT I WOULD LIKE YOU TO WRITE ON WHAT’S NOW — I DIDN’T EVEN WRITE IT DOWN — 172 I GUESS, THOSE FLIES.
A.: THOSE ARE FAMILIES, BY THE WAY, OF FLIES. THEY ARE LARGE GROUPS.
Q.: OKAY. WHATEVER PEN YOU WISH.
A.: (THE WITNESS COMPLIED.)
Q.: SO, SIR, YOU’VE NOW WRITTEN ON THE CHART THE NAMES OF THE FAMILIES OF FLIES. AND MY GUESS IS THE MORE SPECIFIC SPECIE OF FLY UNDERNEATH EACH. IS THAT A FAIR STATEMENT?
A.: IT’S JUST A GENERAL COMMON NAME FOR THE SCIENTIFIC DESIGNATION.
Q.: SO, IN OTHER WORDS, THE SARCOPHA —
A.: SARCOPHAGIDAE.
Q.: — ARE GENERALLY REFERRED TO AS FLESH FLIES.
A.: YES.
Q.: KIND OF LIKE THE SARCOPHAGUS IS WHERE EGYPTIANS PUT DEAD BODIES. THESE ARE FLIES THAT EAT FLESH.
A.: YES.
Q.: AND BLOW AND BOTTLE FLIES. WHAT KIND OF FLIES ARE THOSE?
A.: THESE ARE COMMON METALLIC FLIES THAT WE SEE, USUALLY GREEN OR BLUE.
Q.: HOW DO THESE INSECTS FACTOR INTO YOUR CALCULATIONS WITH REGARD TO TIME OF DEATH?
A.: WELL, THE FIRST THING IS SEEING WHETHER OR NOT THEY’RE PRESENT. THE NEXT THING IS TO COLLECT THEM. AND AFTER PRESERVING THEM PROPERLY IS TO MAKE AN IDENTIFICATION, FIND OUT WHICH GROUPS YOU HAVE. AND THEY’RE VERY DISTINCTIVE. VARIOUS FEATURES THAT WOULD BE LIKE IDENTIFYING DIFFERENT SPECIES OF DOGS OR DIFFERENT SORT OF TYPES OF DOGS. YOU DO IT ON FACTORS OF LENGTH, OF WIDTH, OF FUR COLOR. THESE DON’T HAVE FUR, BUT YOU DO HAVE VARIOUS STRUCTURES WHICH ARE DIAGNOSTIC, AND SO YOU CAN IDENTIFY THOSE AND DETERMINE WHAT SPECIES, OBVIOUSLY WHAT FAMILIES YOU’RE ACTUALLY DEALING WITH.
Q.: AND CAN YOU ALSO IN YOUR EVALUATION DETERMINE WHAT GENERATION OF BUG A PARTICULAR INSECT HAPPENS TO BE?
A.: NOT NECESSARILY GENERATION IN THIS CASE, BUT STAGE IN DEVELOPMENT, YOU CAN DO THAT.
Q.: AND WHAT DOES STAGE IN DEVELOPMENT MEAN?
A.: THAT’S GOING BACK TO AGAIN THE EGG STAGE OR THE LARVAL STAGES, THE PUPA, OR THE ADULT.
Q.: SO, IN OTHER WORDS, YOU TRY AND IDENTIFY WHAT STAGE IN DEVELOPMENT A PARTICULAR FLY OR INSECT IS FOR PURPOSES OF ASSISTING YOU IN IDENTIFYING TIME OF DEATH. IS THAT CORRECT?
MR. DUSEK: OBJECTION. I DON’T BELIEVE HE DETERMINES TIME OF DEATH.
THE COURT: AS THE SPECIFIC, SUSTAINED.
REPHRASE THE QUESTION.
MR. FELDMAN: SURE.
BY MR. FELDMAN:
Q.: FOR PURPOSES OF ASSISTING YOU IN RENDERING OPINIONS REGARDING THE POST-MORTEM INTERVAL OR TIME OF DEATH, DO YOU ATTEMPT TO I WILL USE THE WORD STAGE THE PARTICULAR FLIES?
A.: WHAT I’M TRYING TO LOOK AT IS TO SEE WHAT STAGES IN DEVELOPMENT ARE PRESENT AND TO SEE WHAT STAGES ARE THE FARTHEST ALONG, WHICH HAVE BEEN ASSOCIATED WITH THE REMAINS THE LONGEST.
Q.: WHAT DOES THAT MEAN? STAGES FARTHEST ALONG THAT HAVE BEEN ASSOCIATED WITH THE REMAINS THE LONGEST? WHAT DID YOU MEAN TO COMMUNICATE THERE, SIR?
A.: FOR INSTANCE, IF YOU HAVE JUST EGGS ON THE REMAINS, THE EGGS ARE THERE FOR A LIMITED AMOUNT OF TIME. MAYBE EIGHT, FOURTEEN HOURS, SOMETHING LIKE THAT. IF YOU HAVE PUPAL STAGES, THEY MAY HAVE BEEN ASSOCIATED WITH THE REMAINS FOR A WEEK AND A HALF, TWO WEEKS OR LONGER.
Q.: DO YOU FIND — HAVE YOU READ ANY STUDIES OR YOU’VE PARTICIPATED IN THE FORENSIC EVALUATION ON OTHER DECOMPOSED BODIES, IS THAT RIGHT?
A.: YES.
Q.: DO YOU FIND THAT YOU ARE ABLE TO IDENTIFY VARIOUS STAGES OF FLIES TO ASSIST YOU IN DETERMINING HOW LONG THE BODY HAD BEEN AVAILABLE FOR FLY EGG DEPOSITS?
A.: I’M SORRY? COULD YOU RESTATE THAT?
Q.: ARE YOU ACQUAINTED OR FAMILIAR WITH ANY SCIENCE OR LITERATURE OR EXPERIENCE THAT ALLOWS YOU FROM — THAT ALLOWS YOU FROM THE IDENTIFICATION OF A PARTICULAR SPECIES TO DETERMINE WHEN THAT SPECIES FIRST HAD ACCESS TO THE BODY?
A.: THERE ARE VARIOUS TEXTBOOKS AVAILABLE, PAPERS THAT HAVE BEEN PUBLISHED, AND ALSO MY OWN WORK TO DETERMINE WHEN YOU SEE A CERTAIN STAGE IN DEVELOPMENT THAT YOU CAN DETERMINE HOW LONG IT’S BEEN ASSOCIATED WITH THE REMAINS.
Q.: SO IN PARTICULAR IN THIS CASE YOU IDENTIFIED, DO YOU RECALL, HOW MANY DIFFERENT INSECT SPECIES?
A.: I BELIEVE THERE WERE ABOUT FOURTEEN THAT WERE FOUND WITH THE BODY.
Q.: AND WERE THERE ALSO BEETLES ASSOCIATED WITH THE BODY?
A.: YES.
Q.: IS THERE SOMETHING THAT YOU CHARACTERIZE AS AN INSECT COMMUNITY?
A.: YES. WHEN A — WHEN YOU HAVE A SUBSTRATE, AND A SUBSTRATE MEANS A HOST OR A BODY, WHETHER IT’S ANIMAL MATERIAL OR PLANT MATERIAL, I MEAN, YEAH, PLANT MATERIAL, YOU GET INSECTS COMING IN OVER A PERIOD OF TIME DURING DECOMPOSITION, AND THAT GROUP OF INSECTS OR OTHER INVERTEBRATES, THAT COMMUNITY, BECOMES LARGER AND MORE COMPLEX AS TIME GOES ON.
Q.: IN THIS PARTICULAR CASE DID YOU IDENTIFY A MATURE FLY SPECIE THAT WAS DEPENDENT UPON REMAINS, MEANING HUMAN REMAINS OR ANIMAL REMAINS?
A.: YES. ONE OF THE FLIES THAT WAS FOUND IN ASSOCIATION WITH THE REMAINS AT AUTOPSY WERE WHAT WE CALL CHEESE SKIPPER FLIES.
Q.: WHAT’S THE SIGNIFICANCE OF CHEESE SKIPPER FLIES?
A.: CHEESE SKIPPERS COME IN DURING LATER STAGES IN DECOMPOSITION, DEPOSIT THEIR EGGS, AND THE LARVAL STAGES, THE MAGGOTS FEED ON TISSUE WHICH IS IN A CERTAIN STATE OF DECOMPOSITION.
Q.: SHOWING YOU WHAT’S BEEN PREVIOUSLY MARKED 4, AND SPECIFICALLY DIRECTING YOUR ATTENTION TO E AND F. IS THIS THAT STAGE OF DECOMPOSITION THAT YOU MAY EXPECT OR HAVE FOUND THESE BLUE BOTTLE FLIES?
A.: WELL, THE FLIES I WAS SPECIFICALLY TALKING ABOUT WERE THE CHEESE SKIPPERS.
Q.: OKAY. I’M SORRY. CHEESE SKIPPERS?
A.: YES. YOU WOULD FIND THEM ON BODIES AT THAT STAGE OF DECOMPOSITION.
Q.: AND WHERE IS IT — I’M TRYING TO BE DISCREET ABOUT THE PHOTOS. IN THE DECOMPOSITION PROCESS DOES THE FAT DEGRADE IN A PARTICULAR MANNER, DOES THE BODY DEGRADE IN A PARTICULAR MANNER?
A.: THERE IS A PROCESS OF DECOMPOSITION IN ANIMAL TISSUES STARTING OUT FOLLOWING DEATH AND PROGRESSING UNTIL THERE’S NOTHING LEFT BUT BONES. AND THERE ARE VARIOUS STAGES OF NATURAL DECOMPOSITION WHICH CAN BE ENHANCED BY WEATHER CONDITION OR ANIMALS THAT COME IN AND AFFECT THE REMAINS. AND SO THERE IS A SEQUENCE, THOUGH, GOING FROM A PERSON BEING DEAD, FIRST MOMENTS FOLLOWING DEATH, ‘TIL THE TIME OF RECOVERY. AND THAT CAN BE ANYWHERE FROM MOMENTARILY, JUST, YOU KNOW, A FEW MINUTES, HOURS AFTER DEATH, OR MAYBE WEEKS OR YEARS.
Q.: ALL RIGHT.
BUT WHAT I WAS THINKING ABOUT WAS THIS: YOU DESCRIBED THE CHEESE SKIPPERS, AND THE CHEESE SKIPPERS ARE NAMED CHEESE SKIPPERS, AREN’T THEY, BECAUSE PORTIONS OF THE TISSUE AS IT DECOMPOSES BECOMES CHEESE-LIKE?
A.: YES. IT’S TERMED K.C.N. DECOMPOSITION. AND AT THAT POINT IN TIME WHAT HAPPENS IS THE FATTY ACIDS OF THE BODY TEND TO DEGRADE AND BECOME MORE CHEESE-LIKE. THAT PARTICULAR SUBSTANCE THAT’S PRODUCED GIVES OFF A SPECIFIC ODOR THAT THESE FLIES WILL RESPOND TO.
Q.: SO YOU NOTED THE PRESENCE OF CHEESE SKIPPERS. WHAT ELSE DID YOU NOTE THE PRESENCE OF THAT WAS OF CONSEQUENCE TO ANY DETERMINATIONS YOU WERE ABLE TO MAKE REGARDING POSSIBLE TIME OF DEATH?
A.: THERE WERE A NUMBER OF SPECIES OF FLY MAGGOTS THAT WERE REPRESENTED WITH THE REMAINS WHICH WERE COLLECTED AT AUTOPSY.
Q.: WHAT PARTICULAR SPECIES?
A.: ONE OF THEM WOULD BE TERMED A BLACK BLOW FLY. THE SCIENTIFIC NAME BEING PHORMIA FOR THE GENUS AND REGINA FOR THE SPECIES. THERE WAS ANOTHER SPECIES OF WHAT WE CALL THE BLUE BLOW FLIES OR BOTTLE FLIES. THIS IS THE GENUS CALLIPHORA, PROBABLY VICINA, WHICH IS THE MOST COMMON SPECIES WE HAVE DURING THE WINTER IN SAN DIEGO COUNTY. AND THERE WAS ALSO AN INDICATION THAT PHAENICIA SERICATA, WHICH IS THE GREEN BOTTLE FLY, WAS ALSO PRESENT.
Q.: AND ALL OF THESE HAVE CONSEQUENCE TO YOU FOR WHAT PURPOSE?
A.: FOR DETERMINING HOW LONG THEY HAVE BEEN ASSOCIATED WITH THE REMAINS.
Q.: DID YOU TAKE INTO CONSIDERATION THE KNOWN LIFE HISTORIES OF THESE PARTICULAR SPECIES WITH ADJUSTMENTS MADE FOR TEMPERATURE BASED UPON THE LOCATIONS FOR WHERE THE BODY WAS RECOVERED TO FORM AN OPINION AS TO WHEN THE BODY COULD HAVE FIRST BEEN AVAILABLE TO THE INSECTS?
A.: TAKING THAT IN TWO PARTS, FIRST PART, THE IDENTIFICATIONS WERE MADE AND COMPARISONS WERE MADE IN THE LITERATURE WHICH WAS AVAILABLE, SO IT’S REASONABLY STRAIGHTFORWARD TO MAKE THE IDENTIFICATIONS. THE DEVELOPMENTAL STAGES WERE ALSO DETERMINED TO FIND OUT HOW LONG THE LONGEST ONES HAD BEEN ON THE BODY.
AND THEN WHERE YOU GET INTO A BIT OF DIFFICULTY IS DETERMINING WHAT THE WEATHER CONDITIONS WERE SAY FOR THE TIME AN INDIVIDUAL WAS MISSING OR LAST SEEN UNTIL THE BODY IS RECOVERED. AND SO YOU HAVE TO GET THOSE WEATHER REPORTS AND FIND OUT WHAT THE VARIOUS CLIMATIC CONDITIONS WERE.
Q.: DID YOU DO THAT?
A.: YES.
Q.: OKAY.
AND AFTER YOU GOT THE WEATHER CONDITIONS, DID YOU FORM AN OPINION, AND AFTER YOU DID THE — AFTER YOU GOT THE WEATHER CONDITIONS AND AFTER YOU DID YOUR TESTS AND YOUR EVALUATIONS, WERE YOU ABLE TO FORM AN OPINION AS TO WHEN OVA POSITION COULD HAVE OCCURRED?
A.: YES. BASED ON ALL OF THAT AND THE KNOWN TEMPERATURE REGIMES OF THAT TIME, ALONG WITH THE WEATHER CONDITIONS, I CAME UP WITH BETWEEN ABOUT TEN AND TWELVE DAYS IS WHEN THE FIRST TIME THE BODY WAS ACTUALLY INFESTED BY INSECTS.
Q.: OKAY.
SO OVA POSITION MEANS WHAT?
A.: OVA POSITION OR AS I MENTIONED EARLIER LARVAL POSITION, IF EGGS ARE NOT DEPOSITED IS THAT FIRST POINT IN DEVELOPMENT ON A RESOURCE BY FLIES.
Q.: SO YOU TOLD ME TEN OR TWELVE DAYS. IS THAT RIGHT?
A.: YES.
Q.: SO DO I COUNT BACK FROM THE 28TH?
A.: YES.
Q.: DO I COUNT THE 28TH?
A.: YOU CAN COUNT THE 28TH, YES.
Q.: ONE, TWO, THREE, FOUR, FIVE, SIX, SEVEN, EIGHT, NINE, TEN. YOU SAID BETWEEN TEN AND TWELVE DAYS.
A.: ACTUALLY IT’S ABOUT TEN AND A HALF. ACTUALLY I USED THE NOON OF THE 28TH.
Q.: OKAY.
SO IT’S ACTUALLY — YOU CONCLUDED, DIDN’T YOU, THAT OVA POSITION EARLIEST COULD HAVE OCCURRED BETWEEN THE 16TH AND THE 18TH?
A.: YES.
Q.: SO FOR THE RECORD, ON 170 I’VE NOT EXACTLY DRAWN A RECTANGLE, BUT IF YOU PUT THE SQUARES ALMOST TOGETHER, IT WOULD BE A RECTANGLE, IS THAT A FAIR DESCRIPTION, SIR?
A.: YES.
Q.: NOW, WHEN YOU TALK ABOUT OVA POSITION, LET ME ASK YOU THIS: HOW LONG DOES IT TAKE ONCE A PERSON’S OUTDOORS AND DEAD FOR THE FLIES TO ARRIVE?
A.: UNDER CONDITIONS WHERE, OF COURSE, FLIES ARE AVAILABLE, SUITABLE WEATHER CONDITIONS OF WARMTH, LACK OF CLOUD COVER, TIME OF YEAR, LOCATION, DURING DAYLIGHT HOURS YOU CAN HAVE INSECTS, FLIES COME IN IMMEDIATELY AS THE BODY IS AVAILABLE. AND YOU CAN ALSO GET EGG LAYING OR LARVAE WITHIN TWENTY MINUTES FOLLOWING DEATH.
Q.: SO THE CONDITIONS DEPICTED, THE WEATHER CONDITIONS DEPICTED IN 4 ARE CONSISTENT WITH THOSE KINDS OF CONDITIONS WHERE YOU WOULD EXPECT OR COULD EXPECT TO FIND EGGS OR FLIES WITHIN TWENTY MINUTES?
A.: DURING DAYLIGHT HOURS, YES.
Q.: SO THAT MEANS IF THE BODY HAD BEEN PLACED IN THE AREA WHERE IT WAS RECOVERED SAY ON THE 16TH, THAT WOULD BE A FINDING CONSISTENT WITH YOUR ENTOMOLOGIC CONCLUSIONS.
A.: YES. BASED ON THE LARVAL STAGES AVAILABLE ON THE BODY.
Q.: SIMILARLY WITH THE 17TH AND THE 18TH, RIGHT?
A.: YES.
Q.: SO YOU ARE PLUS OR MINUS ABOUT FORTY-EIGHT HOURS, IS THAT RIGHT?
A.: YES. JUST ABOUT.
Q.: SO IF I’M UNDERSTANDING YOU CORRECTLY, IT’S YOUR PROFESSIONAL OPINION, BASED ON YOUR ENTOMOLOGIC RESEARCH, EXPERIENCE, YOUR TRAINING, YOUR EDUCATION, YOUR PUBLICATIONS, YOUR MEMBERSHIPS, THAT BASED ON WHAT THE EGGS, WHAT THE BUGS ARE TELLING YOU, TIME OF DEATH IS BETWEEN THE 16TH AND THE 18TH, IS THAT RIGHT?
MR. DUSEK: OBJECTION. MISSTATES THE EVIDENCE.
THE COURT: IT DOES.
REPHRASE THE QUESTION.
BY MR. FELDMAN:
Q.: IS IT THE CASE, BASED ON ALL OF YOUR TRAINING AND EXPERIENCE, THAT IT’S YOUR OPINION THAT BASED UPON YOUR ENTOMOLOGIC FINDINGS THAT TIME OF DEATH COULD HAVE BEEN BETWEEN THE 16TH AND 18TH OF FEBRUARY?
MR. DUSEK: OBJECTION. MISSTATES THE EVIDENCE FOR TIME OF DEATH.
THE COURT: YOU KEEP USING THE TERM TIME OF DEATH. USE A DIFFERENT TERMINOLOGY, AND I WILL ALLOW THE QUESTION.
BY MR. FELDMAN:
Q.: IS IT YOUR CONCLUSION THAT THE POST-MORTEM INTERVAL COULD HAVE BEEN BETWEEN THE 16TH AND THE 18TH?
A.: YES.
MR. DUSEK: OBJECTION. MISSTATES THE EVIDENCE.
THE COURT: OVERRULED.
BY MR. FELDMAN:
Q.: AND AS WE DESCRIBED BEFORE, THE POST-MORTEM INTERVAL COMMUNICATES INTO TIME OF DEATH, IS THAT RIGHT?
A.: YES.
Q.: NOW, AFTER YOU ARRIVED AT THIS CONCLUSION, YOU RECOGNIZED THAT IT WAS CREATING OR MIGHT CREATE A PROBLEM FOR LAW ENFORCEMENT, ISN’T THAT RIGHT?
A.: I HAD IN MY NOTES IT WAS POSSIBLE THAT THE PERSON MAY HAVE BEEN DEAD LONGER.
Q.: OKAY.
AND WHY — OKAY. UNDER WHAT CIRCUMSTANCES COULD A PERSON HAVE BEEN DEAD LONGER?
A.: I’M SORRY?
Q.: MAYBE I DIDN’T ASK THAT TOO WELL.
THE BUGS, THEY DON’T LIE; THOSE ARE JUST FACTS THAT YOU CONSIDER, IS THAT A FAIR STATEMENT?
MR. DUSEK: OBJECTION. LEADING. ARGUMENTATIVE.
THE COURT: SUSTAINED.
REPHRASE.
(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN AND
MS. SCHAEFER.)
BY MR. FELDMAN:
Q.: BASED UPON YOUR CONCLUSIONS, DID YOU COMMUNICATE TO LAW — WELL, STRIKE THAT.
YOU TOLD US THERE WERE CIRCUMSTANCES THAT MIGHT AFFECT HOW LONG THE BODY HAD BEEN AVAILABLE. IS THAT RIGHT?
A.: YES.
Q.: AMONG THOSE CIRCUMSTANCES WOULD HAVE BEEN FOR THE BODY TO HAVE BEEN COMPLETELY SEALED UP, IS THAT ONE OF THEM?
A.: YES.
Q.: BECAUSE THAT WOULD MAKE THE BODY UNAVAILABLE TO INSECTS, IS THAT RIGHT?
A.: THE BODY COULD HAVE BEEN EXCLUDED FROM INSECT ACTIVITY IN ONE WAY OR ANOTHER.
Q.: AND AS A RESULT OF THAT CONCERN THAT YOU HAD, DID YOU SPEAK TO ANYBODY IN PARTICULAR ABOUT WHETHER OR NOT THERE WAS ANY EVIDENCE THAT THE BODY HAD EVER BEEN EXCLUDED FROM THE INSECTS?
A.: I CONTACTED THE SAN DIEGO POLICE DEPARTMENT FORENSIC INVESTIGATORS TO ASK ABOUT OTHER ASPECTS OF THE CASE WHICH MIGHT HAVE INCLUDED THE BODY BEING COVERED, THE BODY BEING MOVED FROM ONE PLACE TO ANOTHER WITHIN THAT SAME GENERAL AREA, SOMETHING THAT MAY HAVE PREVENTED THE SITUATION FROM BEING AS EXPECTED FROM WHAT I FOUND.
Q.: AND IN FACT YOU WERE TOLD THE BODY HADN’T BEEN COVERED, THERE WAS NO EVIDENCE OF THAT, IS THAT RIGHT?
MR. DUSEK: OBJECTION. HEARSAY.
THE COURT: OVERRULED.
YOU MAY ANSWER.
THE WITNESS: NO ONE HAD ANY EVIDENCE THAT THE CONDITIONS THE BODY WERE FOUND WERE OTHER THAN WHAT I WAS INFORMED OF BECAUSE THE BODY WAS NOT COVERED.
BY MR. FELDMAN:
Q.: DID ANYONE EVER TELL YOU THAT THE BODY HAD BEEN MOVED?
A.: NO.
Q.: DID YOU EVER FIND ANY EVIDENCE THAT THE BODY HAD BEEN MOVED?
A.: NO.
Q.: SO, THEREFORE, IN THE ABSENCE OF BODY BEING MOVED, IN THE ABSENCE OF THE BODY BEING COVERED, YOUR SCIENCE IS TELLING YOU THE BODY’S EARLIEST AVAILABILITY IS THE 16TH OF FEBRUARY, 2002.
A.: FOR THE FLY LARVAE THAT WERE REMOVED, ANALYZED, AND EVALUATED.
Q.: WERE THERE OTHER, ANY OTHER INSECTS THAT YOU FOUND THAT — AND DID THESE STUDIES ON OR THE EVALUATIONS ON THAT WOULD CAUSE YOU TO FORM THE OPINION THAT IT WAS EARLIER?
A.: THERE WERE A LARGE NUMBER OF BEETLES. THEY WERE ALL ADULT BEETLES THAT WERE FOUND WITH THE REMAINS. AND, AGAIN, AN INDICATION WOULD BE IF CONDITIONS ARE FAVORABLE, THAT THEY WOULD HAVE DEPOSITED EGGS AND SO EGGS OR IN THIS CASE THE LARVAL STAGES WHICH ARE TERMED GRUBS WOULD HAVE BEEN FOUND ALSO ON THE BODY. BUT I WAS UNABLE TO RECOVER ANY OF THE LARVAL STAGES OF THE BEETLES FROM THE REMAINS.
Q.: I’M SORRY. WHAT’S THE CONSEQUENCE OF THAT? NOW, IF YOU WOULD HAVE FOUND GRUBS ON THE BODY, THAT MIGHT HAVE SUGGESTED TO YOU YOUR EARLIER CALCULATION WAS OFF, BUT YOU DIDN’T FIND ANY GRUBS, IS THAT RIGHT?
A.: IT WOULDN’T HAVE MEANT THAT THE EARLY CALCULATION WAS OFF. THAT WOULD STILL BE CORRECT FOR THE FLIES THAT WERE ON THERE. BUT WHAT THE BEETLES WOULD HAVE INDICATED THAT THE BODY WAS ATTRACTED, ATTRACTED THE BEETLES, AND THEY TEND TO START DEPOSITING THEIR EGGS ANYWHERE FROM TWO WEEKS ONWARD DURING DECOMPOSITION. AND SO WHEN I DIDN’T FIND ANY BEETLE LARVAE ON THE BODY, . . .
Q.: SO THE ABSENCE OF BEETLE LARVAE SUPPORTED OR SUPPORTS THE CONCLUSION THAT THE BODY WAS FIRST AVAILABLE ON OR ABOUT THE 16TH TO THE 18TH OF FEBRUARY.
A.: BASED ON PRIMARILY THE MAGGOTS.
Q.: YOU DISCUSSED WITH LAW ENFORCEMENT AND MR. DUSEK EACH OF THE ISSUES YOU’VE DISCUSSED WITH THE JURY TODAY?
A.: YES.
Q.: NOW, ONE OF THE ISSUES THAT I KNOW YOU’VE TAKEN INTO CONSIDERATION IS THE WEATHER. IS THAT RIGHT?
A.: YES.
Q.: THE WEATHER SITUATION IN SAN DIEGO COUNTY IN THE MONTH OF FEBRUARY, WOULD YOU CHARACTERIZE IT AS USUAL OR UNUSUAL? HOW WOULD YOU DESCRIBE IT?
A.: I WOULD DESCRIBE IT AS BEING EXTREMELY ABNORMAL.
Q.: AND WITH REGARD TO THAT ABNORMALITY, DID THAT FACTOR INTO YOUR CALCULATIONS ON OVA POSITION OR POST-MORTEM INTERVAL?
A.: IT DID NOT FIGURE IN TO THE DETERMINATION OF HOW LONG THE BODY WAS AVAILABLE TO THE INSECTS. WHAT IT DID BRING UP QUESTIONS AS WHETHER OR NOT THE ADULT INSECTS WOULD HAVE BEEN AVAILABLE TO FIND THE BODY.
Q.: HOW DID THE QUESTIONS GET ANSWERED?
A.: IT’S A DIFFICULT QUESTION BECAUSE MOST OF THE CONCERN WITH INSECTS HAVE BEEN WITH THE DEVELOPMENT, WHETHER OR NOT YOU HAVE A RESOURCE, WHAT THE AMBIENT AIR TEMPERATURES ARE, WHAT THE RELATIVE HUMIDITY MIGHT BE. AND SO WE’RE MORE CONCERNED WITH THE DEVELOPMENTAL STAGES THAN WE ARE WITH THE LARVAE, I MEAN WITH THE ADULTS ACTUALLY BEING ABLE TO FIND THE RESOURCE.
IN THIS SITUATION WE HAD VERY WARM TEMPERATURES DURING FEBRUARY, WHICH WAS QUITE UNUSUAL, AND THAT WAS COMPOUNDED BY THE FACT THAT WE DIDN’T HAVE ANY SIGNIFICANT RAINFALL FOR MOST OF THE WINTER. AND THESE THINGS WILL AFFECT INSECT ACTIVITY.
Q.: WELL, IT DID HAVE SOME EFFECT ON THE INSECT POPULATION, DID IT?
A.: YES. THE INSECT POPULATION IN GENERAL TENDS TO BE MUCH LOWER THIS PARTICULAR YEAR THAN IT HAS BEEN IN PREVIOUS YEARS.
Q.: HOWEVER, WHEN YOU CONSIDERED THE WEATHER AND THOSE MATTERS, YOU ALSO CONSIDERED THE GEOGRAPHY OF THE SINGING HILLS AREA, IS THAT RIGHT?
A.: YES.
Q.: AND AMONG THE THINGS — I DON’T KNOW IF I’M GOING TO BE ABLE TO FIND THE CHART. AMONG THE THINGS YOU CONSIDERED WAS A HOUSING DEVELOPMENT THAT’S APPROXIMATELY A MILE UP THE ROAD, IS THAT RIGHT?
A.: YES.
Q.: AND WHAT EFFECT, IF ANY, DOES THE EXISTENCE OF A HOUSING DEVELOPMENT A MILE OR SO UP THE ROAD HAVE, IF ANY, ON YOUR EVALUATION OF THE INSECTS?
A.: WELL, YOU PRIMARILY HAVE A RURAL AREA WHERE THE REMAINS WERE RECOVERED. BUT WITHIN, AGAIN WITHIN HALF-MILE TO A MILE, YOU HAVE IN A SENSE AN URBANIZED SITUATION, WHICH IS AN ARTIFICIAL ENVIRONMENT. AND THESE ARTIFICIAL ENVIRONMENTS ALLOW YOU TO HAVE WATER, ALLOW YOU TO HAVE FOOD RESOURCES THAT MIGHT SUPPORT CERTAIN FORENSICALLY IMPORTANT INSECTS, PARTICULARLY THE BLOW FLIES AND BOTTLE FLIES.
Q.: SO THE PRESENCE OF HUMAN INTERVENTION, SHALL WE SAY, BY WAY OF THE DEVELOPMENT FURTHER UNDERSCORES THE ACCURACY OF YOUR OPINIONS, IS THAT A FAIR STATEMENT?
MR. DUSEK: OBJECTION. LEADING.
THE COURT: SUSTAINED.
REPHRASE.
BY MR. FELDMAN:
Q.: DO YOU HAVE AN OPINION AS TO WHETHER OR NOT THE PRESENCE OF THE HOUSING DEVELOPMENT UP THE ROAD A WAYS ENHANCES OR DETRACTS FROM THE ACCURACY OF YOUR OPINION?
A.: WELL, IT DOESN’T DETRACT TO IT. WHAT YOU HAVE IS A SITUATION WHICH SHOULD ACT AS A RESERVOIR FOR INSECTS. WHAT THE ACTUAL IMPACT OF THAT IS I CAN’T SAY EXACTLY. BUT, AGAIN, IT’S A POSSIBILITY WHENEVER YOU HAVE A DIFFERENT SITUATION AWAY FROM A RURAL AREA WHICH COULD BE PRODUCING FLIES, THEY ARE SOMEWHAT INDEPENDENT OF WHAT’S GOING ON JUST AROUND THEM.
Q.: SO I GUESS ONE COULD SAY THE FLY POPULATION MIGHT HAVE BEEN DOWN, BUT IT WOULDN’T BE ABSENT.
MR. DUSEK: OBJECTION. LEADING.
THE COURT: SUSTAINED.
MR. FELDMAN: YOUR HONOR, 801.
THE COURT: THE FORM OF THE QUESTION. REPHRASE IT.
BY MR. FELDMAN:
Q.: WITH REGARD TO THE FLY POPULATION, IS IT YOUR OPINION THAT THE FLY POPULATION MIGHT HAVE BEEN DOWN AS OPPOSED TO OTHER YEARS?
A.: THE FLY POPULATION WAS DEFINITELY VERY LOW.
Q.: NOTWITHSTANDING THE LOW FLY POPULATION, IT WOULDN’T BE ABSENT FOR TWO AND A HALF WEEKS, WOULD IT?
A.: IT WOULD BE HARD TO TOTALLY EXCLUDE FLY ACTIVITY FOR THAT AMOUNT OF TIME GIVEN THOSE WEATHER CONDITIONS.
Q.: SO YOU’RE SAYING THAT IF, HYPOTHETICALLY, THE BODY HAD BEEN OUT, SAY, ON FEBRUARY 2 AND HADN’T BEEN DISCOVERED UNTIL FEBRUARY 28TH, YOU HAVE NO EXPLANATION FOR THAT.
A.: NO, I DON’T.
Q.: SO IT WOULD BE NOTHING MORE THAN SPECULATION OR GUESS ON YOUR PART TO CONCLUDE THAT THE BODY WAS AVAILABLE ANY TIME SOONER THAN THE 16TH OF FEBRUARY.
MR. DUSEK: OBJECTION. LEADING. SPECULATION.
THE COURT: OVERRULED.
YOU CAN ANSWER. YOU CAN ANSWER THAT.
THE WITNESS: I CAN’T EXCLUDE THE FACT THAT THE INSECTS COULD HAVE GOTTEN TO THE BODY EARLIER. BUT BASED AGAIN ON THE IMMATURE STAGES OF THE FLIES, THEY DID NOT.
BY MR. FELDMAN:
Q.: BASED UPON YOUR TRAINING, BASED UPON YOUR EXPERIENCE, THEY COULD NOT, RIGHT?
A.: THEY DID NOT. RIGHT.
Q.: BASED UPON — BY THE WAY, IN THE MONTH OF FEBRUARY WERE YOU DOING ANY WORK IN THE AREA OF SINGING HILLS?
A.: I ACTUALLY HAD BEEN COLLECTING INSECTS IN THAT GENERAL AREA UP ABOVE WHERE THE BODY WAS RECOVERED, UP IN THE CREST RIDGE AREA.
Q.: SO YOU HAD ACTUALLY BEEN EXPERIENCING THE ENVIRONMENT BEFORE YOU WERE EVEN CALLED UPON BY LAW ENFORCEMENT TO COME TO THE AUTOPSY ON THE 28TH, —
A.: YES.
Q.: — RIGHT?
SO THAT GAVE YOU I’LL SAY AN EVEN MORE INTIMATE KNOWLEDGE OF THE AREA BASED UPON THE FACT THAT YOU WERE ACTUALLY WITHIN A VERY SHORT DISTANCE FROM THE BODY.
MR. DUSEK: OBJECTION. LEADING.
THE COURT: SUSTAINED.
REPHRASE THE QUESTION.
BY MR. FELDMAN:
Q.: DID THAT INCREASE YOUR FAMILIARITY WITH THE AREA?
A.: I’M FAMILIAR WITH THAT AREA, YES.
Q.: AND ON TOP OF YOUR PRE-EXISTING FAMILIARITY, YOUR PRESENCE IN THE AREA IN THE MONTH OF FEBRUARY, DID THAT ENHANCE YOUR FAMILIARITY?
A.: YES.
(DISCUSSION OFF THE RECORD AMONG THE DEFENSE.)
BY MR. FELDMAN:
Q.: AND WITH REGARD TO YOUR WORK IN THIS CASE, IS IT YOUR OPINION THAT THIS IS AT LEAST THE BEST OPPORTUNITY AND THE BEST JOB YOU’VE EVER HAD TO DO THE FORENSIC EVALUATION THAT YOU WERE CALLED UPON TO DO?
A.: YES.
Q.: EVEN BETTER THAN WHEN YOU TESTIFIED FOR MR. DUSEK?
A.: NEVER. YES.
MR. FELDMAN: NO FURTHER QUESTIONS.
THE COURT: ALL RIGHT.
CROSS-EXAMINATION.
CROSS-EXAMINATION
BY MR. DUSEK:
Q.: HAVE YOU BEEN RETAINED BY MR. FELDMAN BEFORE?
A.: YES.
Q.: YOU’VE WORKED FOR BOTH SIDES?
A.: YES.
Q.: DID YOU MEET WITH HIM BEFORE YOU TESTIFIED?
A.: YES.
Q.: HOW MANY TIMES?
A.: ONCE.
Q.: DID YOU TALK TO HIM ON THE PHONE, TOO?
A.: YES.
Q.: DO YOU FIND THAT IN YOUR WORK THAT ATTORNEYS FROM BOTH SIDES WOULD LIKE TO CHAT WITH YOU TO FIND OUT WHAT YOU HAVE TO SAY BEFORE YOU GET ON AND TESTIFY?
A.: IT DOESN’T HAPPEN A WHOLE LOT, BUT IT DID IN THIS CASE.
Q.: OKAY.
MR. FELDMAN: YOUR HONOR, WE MISSED THE PUNCH. COULD WE HAVE THE RECORD READ BACK?
THE COURT: NO.
BY MR. DUSEK:
Q.: I THINK MR. FELDMAN ASKED YOU A QUESTION, ASKING YOU WHETHER OR NOT THE BODY COULD NOT HAVE BEEN THERE ANY LONGER FOR THE FLY INFESTATION. AND YOU SAID YOU DID NOT FIND ANY REASON THAT IT — THAT THE BUGS DID GET THERE AT THAT TIME, ANY TIME BEFORE THAT. DO YOU REMEMBER THAT PART?
A.: YES.
Q.: YOU DREW A DISTINCTION THERE, DIDN’T YOU?
A.: YES.
Q.: WHY?
A.: WELL, THE DISTINCTION IS THAT I’M BASING THE TIME THAT THE BODY WAS AVAILABLE TO INSECTS STRICTLY ON THE LARVAL STAGES OF THE FLIES ON THE MAGGOTS.
Q.: AND THERE ARE OTHER FACTORS THAT GO INTO YOUR WORK, ISN’T THERE?
A.: YES.
Q.: BASICALLY YOU ARE TELLING US AT THE LATEST — THE LATEST DAY THAT THE BODY COULD BE AVAILABLE FOR FLY INFESTATION, IS THAT CORRECT?
A.: WHAT I’M SAYING IS THAT THE FLIES COULD NOT HAVE DEVELOPED, THE LARVAL STAGES, ON THE BODY ANY FASTER THAN THAT TEN-TO-TWELVE-DAY WINDOW.
Q.: DO YOU HAVE A COPY OF YOUR REPORT WITH YOU?
A.: YES.
Q.: OKAY. JUST SO WE’RE UNDERSTANDING OR TRYING TO UNDERSTAND THE SAME THING.
A.: (PAUSE.)
THIS MAY TAKE A SECOND.
Q.: ALL RIGHT.
A.: (PAUSE.)
YES.
Q.: DID YOU FIND IT?
A.: YES.
Q.: IN YOUR REPORT YOU INDICATE THAT YOU ARE PROVIDING ESTIMATIONS.
A.: YES.
Q.: YOU’RE NOT PROVIDING ANY HARD-AND-FAST DATES, ARE YOU?
A.: I’M PROVIDING A RANGE.
Q.: AND REGARDING THE 16TH TO THE 18TH DATE THAT YOU PROVIDED, DIDN’T YOU TELL US THAT COUNTING BACKWARDS TEN TO TWELVE DAYS THE EGG LAYING OCCURRED NO LATER THAN 16TH TO 18TH OF FEBRUARY, 2002?
A.: YES.
Q.: THAT’S WHAT YOU CAN TELL US, CORRECT?
A.: THAT’S WHAT THE FLIES ARE TELLING ME, YES.
Q.: SO THEY COULD NOT HAVE BEEN LAID THERE THE 19TH, 20TH, 21ST, UP UNTIL THE TIME OF THE RECOVERY, CORRECT?
A.: THE MOST DEVELOPED ONES COULD NOT HAVE.
Q.: SO THAT’S THE MINIMUM AMOUNT OF TIME FROM THE TIME THE BODY WAS RECOVERED TO WHEN THE EGGS WERE LAID ON THE BODY.
A.: YES.
Q.: YOU DID NOT PROVIDE US A MAXIMUM AMOUNT OF TIME IN YOUR REPORT, DID YOU?
A.: NO.
Q.: WHY NOT?
A.: THAT’S VERY DIFFICULT TO DO THAT BECAUSE WHAT WE’RE LOOKING AT, THESE INSECTS BEING OPPORTUNISTIC WITH THE RESOURCE AND DEVELOPING AS QUICKLY AS THEY CAN, GIVEN THE ENVIRONMENTAL CONDITIONS. AND SO THERE’S NOT A WHOLE LOT OF ADVANTAGE FOR LOOKING AT THE ONES THAT HAVE BEEN ON THE BODY SAY THE LONGEST. YOU’RE LOOKING AT THE ONES THAT ARE THE MOST DEVELOPED. AND USUALLY THOSE ARE THE ONES THAT ARE ON THE BODY THE LONGEST.
Q.: SO IN YOUR WORK YOU CAN TELL US WITH SCIENTIFIC CERTAINTY THE TYPES OF INSECTS THAT ARE ON THE BODY.
A.: YES.
Q.: YOU CAN TELL US WITH SCIENTIFIC CERTAINTY THE STAGE OF DEVELOPMENT OF THOSE INSECTS.
A.: YES.
Q.: AND BASED UPON YOUR TRAINING AND EXPERIENCE AND EDUCATION REGARDING THE DEVELOPMENT OF THESE INSECTS, YOU CAN TELL US THE LEAST AMOUNT OF TIME AWAY FROM THE RECOVERY OF THE BODY WHEN THESE INSECTS WOULD HAVE DROPPED THEIR EGGS ON THE BODY.
A.: YES.
Q.: BUT YOU CANNOT TELL US WITH ANY DEGREE OF SCIENTIFIC CERTAINTY WHEN WAS THE MAXIMUM AMOUNT OF TIME, IS THAT CORRECT?
A.: THAT IS CORRECT.
Q.: THE SCIENCE JUST ISN’T THAT GOOD, IS IT?
A.: NOT WITH LOOKING AT THE — AGAIN, THE LENGTH OF TIME OTHER THAN THE FASTEST TIME. IT’S DIFFICULT TO QUANTIFY THAT WITH INSECTS.
Q.: SO THE BEST YOU CAN DO IN ANY SITUATION IS TO GIVE US THE LEAST AMOUNT OF TIME FROM WHEN THE INSECTS ARE EVENTUALLY FOUND.
A.: THAT’S WHAT THE MAGGOTS WERE SHOWING IN THIS PARTICULAR CASE.
Q.: AND BY TRYING TO DETERMINE WHEN THE BODY WAS ORIGINALLY PLACED THERE BEYOND THAT DATE, THE INSECTS DON’T HELP US, DO THEY?
A.: THE MAGGOTS DO NOT HELP US.
Q.: OKAY.
FLIES GO TO THE BODY FOR WHAT REASON?
A.: THE FLIES ARE ATTRACTED TO THE ODORS OF DECOMPOSITION, AND THEY’RE USING THAT NOT FOR THEMSELVES TO FEED UPON, THIS IS THE ADULT INSECT, BUT THEY’RE USING THAT AS A SURFACE OR A SUBSTRATE TO DEPOSIT THEIR EGGS OR LARVAE.
Q.: I THINK WHEN YOU TALKED ABOUT THE SURVEYS OR STUDIES THAT YOU DESCRIBED, THEY TALKED ABOUT A CONTROLLED ENVIRONMENT. IS THAT CORRECT?
A.: YES. MOST OF THE RESEARCH THAT HAS BEEN DONE IS UNDER LABORATORY CONDITIONS WHERE YOU CAN CONTROL RELATIVE HUMIDITY AND TEMPERATURE.
Q.: WHY DO YOU WANT TO DO THAT?
A.: GIVE YOU A BASELINE OF INFORMATION TO GO FROM THERE, AGAIN TO APPLY THAT TO WHAT HAPPENS IN REAL LIFE.
Q.: SO IF WE HAVE A SITUATION IN REAL LIFE THAT MIRRORS THE CONTROLLED SITUATIONS, WE HAVE A FEEL THAT PERHAPS THE RESULTS MIGHT BE THE SAME?
A.: THEY SHOULD BE THE SAME OR VERY CLOSE.
Q.: AND IF WE HAVE A REAL-LIFE SITUATION THAT DOES NOT MIRROR THAT CONTROLLED SITUATION, DOES THAT CAUSE US SOME CONCERN ABOUT MAKING THAT INFERENCE?
A.: YES.
Q.: AND IN THIS SITUATION HERE, HAVE YOU CHECKED THE WEATHER SITUATION?
A.: YES, I HAVE.
Q.: FOR THAT MONTH OF FEBRUARY ARE WE TALKING ABOUT THE CONTROLLED SITUATION THAT WAS EVIDENT IN THE STUDIES?
A.: IT’S NOT LABORATORY CONDITIONS.
Q.: IN FACT, WE HAVE EXTREME HEAT COMPARED TO THE LABORATORY CONDITIONS.
A.: WE HAVE, AS YOU WOULD IN ANY SORT OF NATURAL ENVIRONMENT, YOU HAVE FLUCTUATIONS IN HUMIDITY, RAINFALL, AND ALSO IN TEMPERATURES.
Q.: SO THAT WOULD THROW OFF THE CALCULATIONS BASED ON THE CONTROLLED SITUATION, THE NORMAL SITUATION?
A.: IT WOULDN’T THROW OFF THE CALCULATIONS AS MUCH WITH THE LARVAE, BUT IT WOULD PERHAPS THROW OFF ASSUMING WHAT TIME THE ADULT FLIES COULD ACTUALLY FIND A BODY.
Q.: AND THAT WOULD AGAIN AFFECT THE MAXIMUM AMOUNT OF TIME THE BODY COULD HAVE BEEN EXPOSED TO THE ELEMENTS AND TO THE INSECTS.
A.: YES.
Q.: THE FLIES COME TO THE BODY TO NEST AND TO FEED, IS THAT RIGHT?
A.: NESTING PROBABLY WOULDN’T BE A GOOD TERM. THAT’S MAINLY BIRDS AND THINGS. BUT WHAT THEY DO IS THEY’RE ATTRACTED TO THAT RESOURCE, AGAIN RESPONDING TO ODORS. THEY FOLLOW WHAT WE CALL A CONCENTRATION GRADIENT. THE FARTHER AWAY THEY ARE, THE LESS ODOR THERE IS. CLOSER TO THE HOST, THE MORE ODOR. THEY LAND ON IT, AND THEN THEY EXAMINE THE SURFACE TO TRY TO FIND OUT IF IT’S SUITABLE TO EITHER DEPOSIT EGGS OR LARVAE.
Q.: WHAT MAKES IT SUITABLE?
A.: SUITABILITY FOR A FLY USUALLY REQUIRES THAT THERE’S MOISTURE AVAILABLE, THAT THERE’S AN AREA THAT’S HIDDEN THAT MAY BE DARK, SAY THE UNDER SURFACE OF AN AREA WHERE IT’S NOT EXPOSED TO BRIGHT SUNLIGHT. AND ALSO SOMEWHAT HIDDEN TO PREVENT PREDATION BY OTHER INSECTS AGAIN DESTROYING THEIR EGGS AND OTHER SITUATIONS LIKE THAT.
Q.: AND IF WE HAVE A FRESH BODY LAID OUT ON THE GROUND, WHERE WOULD YOU EXPECT THAT INFESTATION TO GO?
A.: IN MY EXPERIENCE THE INFESTATION USUALLY TAKES PLACE IN ANY NATURAL OR ARTIFICIAL OPENINGS IN THE BODY.
Q.: SUCH AS?
A.: THE HEAD.
Q.: IT WOULD GO TO THE NOSE, TO THE EARS, MOUTH?
A.: YES. GOES IN THE MOUTH. THE EARS. AND ALSO THE UROGENITAL AREA. AGAIN, ANY OPENING THAT IS AVAILABLE.
Q.: BECAUSE THAT WOULD BE A DARK AND MOIST AREA.
A.: YES.
Q.: AT THE AUTOPSY EVENTUALLY WOULD YOU EXPECT TO SEE THE BUG INFESTATION INTO THE BRAIN, IF THAT IN FACT WAS HAPPENING IN A NORMAL SITUATION?
A.: THE BRAIN IS OFTENTIMES AVAILABLE TO INSECTS IN CASES I’VE LOOKED AT. OBVIOUSLY IF YOU HAVE HEAD WOUNDS OR SOMETHING, THAT’S AN ARTIFICIAL OPENING THAT INSECTS CAN GET INTO THAT AREA. BUT THE BRAIN — BUT THE HEAD ITSELF IS USUALLY HEAVILY IMPACTED DURING THE EARLY STAGES OF DECOMPOSITION BY INSECTS.
Q.: BECAUSE IF A BODY IS PLACED AT THE LOCATION DEAD BUT WAS NOT A GUNSHOT VICTIM AND WAS NOT A STABBING VICTIM AND WAS NOT OPENED UP FROM ANY SORT OF TRAUMA OR INJURY, IN A NORMAL SITUATION YOU WOULD EXPECT THE BUGS TO GO TO THE HEAD OPENINGS, CORRECT?
A.: YES.
Q.: IN THIS SITUATION DID YOU GO TO THE AUTOPSY?
A.: YES, I DID.
Q.: DID YOU SEE BUG INFESTATION AS YOU WOULD EXPECT IN A NORMAL SITUATION IN THE HEAD REGION?
A.: NORMAL IS KIND OF A BAD WORD TO USE. BUT IN THIS PARTICULAR INSTANCE IN LOOKING AT THE DECOMPOSITION, I WOULD HAVE EXPECTED A LOT OF INSECT ACTIVITY IN THE HEAD AREA.
Q.: DID YOU SEE ANY?
A.: NO.
Q.: DOES THAT MEAN THAT THIS IS NOT, AGAIN FORGIVE MY USE OF TERM, A NORMAL SITUATION, AN EXPECTED SITUATION?
A.: FOR ME IT WAS ATYPICAL.
Q.: ATYPICAL MEANS NOT TYPICAL?
A.: CORRECT.
Q.: AND THAT MEANS SOMETHING IS GOING ON HERE THAT YOU CAN’T ACCOUNT FOR?
A.: I DON’T ACCOUNT TOO MUCH FOR, AGAIN, HUMAN DECOMPOSITION. I ACCOUNT FOR THE PRESENCE OR ABSENCE OF INSECTS. BUT OFTENTIMES IN DEATH INVESTIGATIONS, AGAIN, THE HEAD AREA IS USUALLY HEAVILY INFESTED WITH INSECT LARVAE.
Q.: AND IT WASN’T HERE, WAS IT?
A.: NO.
Q.: DID IN FACT IT CAUSE YOU TO THINK THAT PERHAPS AT LEAST THE HEAD REGION WAS COVERED AT SOME TIME?
A.: IT MADE ME QUESTION THE AVAILABILITY OF THAT PART OF THE BODY TO INSECTS.
Q.: AND TO AFFECT THE AVAILABILITY, IF A SHEET, BLANKET, TOWEL, ANYTHING WERE TO COVER THAT HEAD, WOULD THAT LIMIT THE AVAILABILITY OF THE HEAD?
A.: WELL, ANYTHING COVERING IT WOULD AGAIN EITHER SLOW DOWN OR COULD POTENTIALLY EXCLUDE INSECTS FROM GETTING TO THAT PART OF THE BODY.
Q.: THAT WOULD BE ONE EXPLANATION FOR NO ACTIVITY IN THE HEAD REGION FOR THE BUGS.
A.: YES.
Q.: NOW, THERE WOULD BE NO WAY OF KNOWING IF AN ANIMAL HAD HAULED OFF OR CARRIED OFF ANY SORT OF COVERING ON A BODY IN THE WILD, WOULD THERE BE?
A.: I HAD NO INDICATION OF THAT.
Q.: ONE WAY OR THE OTHER.
A.: CORRECT.
Q.: NOW, IF A BODY — YOU TALKED ABOUT DECOMPOSING. IS THERE ALSO A CONDITION REFERRED TO AS MUMMIFICATION?
A.: YES.
Q.: WHAT IS THAT?
A.: MUMMIFICATION IS A SITUATION WHERE THE BODY TENDS TO DRY OUT, TO DESICCATE OR DEHYDRATE. OFTENTIMES BEFORE INSECT ACTIVITY IS FULLY SET AND ONGOING.
Q.: DOES THAT DELAY THE BUG ACTIVITY ON THE BODY?
A.: IT CAN DELAY THE AVAILABILITY OF PARTS OF THE BODY FROM INSECTS AGAIN BECAUSE IT’S A DRIER SURFACE. AND SO INSTEAD OF HAVING ENTRANCE OF FLIES, MAYBE BEETLES WOULD COME IN AND BE MORE INTERESTED. BUT AGAIN YOU DO NEED SOME MOISTURE CONTENT. AND DRYING OUT TENDS TO SLOW DOWN BOTH THE OVER-ALL INFESTATION AND OFTENTIMES THE DIVERSITY OF THE INSECT ON HUMAN REMAINS.
Q.: SO IF THE BODY BEGINS TO DECOMPOSE OR DRY OUT, DOES THAT MEAN THAT IT IS NOT AN ATTRACTIVE SITE FOR THESE BUGS THAT YOU’VE BEEN TALKING ABOUT?
MR. FELDMAN: OBJECTION. VAGUE. DECOMPOSE AND DRY OUT ARE DIFFERENT, YOUR HONOR.
THE COURT: OVERRULED.
YOU CAN ANSWER.
THE WITNESS: WITH DESICCATING OR DRYING OUT, AGAIN YOU’RE REDUCING THE WATER CONTENT, THE MOISTURE CONTENT. AND THAT IS NOT AS ATTRACTIVE PARTICULARLY TO FLIES AS IT WOULD BE IF THERE WAS MORE MOISTURE.
BY MR. DUSEK:
Q.: SO IF THE BODY HAD MUMMIFIED, THAT WOULD AGAIN PUSH BACK THE INITIAL TIME WHEN THE BUGS COULD HAVE GOTTEN ON THE BODY.
A.: IT COULD HAVE AFFECTED A BIT THE ABSOLUTE NUMBERS OF INSECTS ATTRACTED TO THE BODY. AND PARTICULARLY FLIES.
Q.: AND THAT WOULD AFFECT THE MAXIMUM AMOUNT OF TIME THE BODY WAS EXPOSED TO THE ELEMENTS.
A.: I’M SORRY. I’M —
Q.: THE MUMMIFICATION, IF IN FACT THAT WAS A CONDITION OF A BODY, THAT WOULD EXTEND OR — EXTEND THE MAXIMUM AMOUNT OF TIME THE BODY WAS EXPOSED.
A.: YES.
Q.: WAS THIS BODY MUMMIFIED?
A.: I’M NOT A PATHOLOGIST. BUT IN MY EXPERIENCE, THE BODY WAS RATHER DRY, PARTICULARLY THE EXTERIOR SURFACE, THE SKIN.
Q.: YOU WERE AT THE AUTOPSY.
A.: YES.
Q.: YOU WERE THERE WITH DR. BLACKBOURNE.
A.: YES.
Q.: WHEN YOU TALK ABOUT THE DRYING SURFACE, WHAT WERE YOU TALKING ABOUT, WHAT PART OF THE BODY?
A.: PRIMARILY THE — WELL, THE EXTERIOR, THE ARM, LEG, HANDS, AND THE HEAD AREA.
Q.: LET ME SHOW YOU BASICALLY WHAT’S BEEN MARKED AS COURT’S EXHIBIT 7, THE AREAS THAT YOU JUST DESCRIBED. ARE THEY VISIBLE IN ANY OF THESE PHOTOGRAPHS?
A.: YES.
Q.: WHICH ONES?
A.: IN — WELL, A, B, C, THEN F, G, H, I, J, AND K.
Q.: BASICALLY ALL OF THEM, CORRECT?
A.: ALL EXCEPT FOR D AND E.
Q.: D AND E WOULD BE THE STOMACH, CHEST REGION OF THE BODY.
A.: YES. IT WAS THE TORSO.
Q.: ALL RIGHT.
AND THE REST OF THE BODY FROM ATTENDING THE AUTOPSY AND BEING WITH DR. BLACKBOURNE APPEAR TO BE MUMMIFIED?
A.: YES. IT WAS DRY.
Q.: AND THAT IS AN UNATTRACTIVE SITE FOR THESE FLIES AND BUGS THAT YOU’VE BEEN TALKING ABOUT.
A.: I WON’T SAY UNATTRACTIVE. IT DOESN’T DRAW THE FLIES IN AS READILY AS A MOIST HOST WOULD.
Q.: THEY WOULD BE LOOKING FOR, IF GIVEN A CHOICE, THEY WOULD BE LOOKING ELSEWHERE.
A.: THEY WOULD BE LOOKING FOR SOMETHING THAT THEY COULD RESPOND TO MORE READILY. PERHAPS SOMETHING THAT WAS MOISTURE MORE AVAILABLE TO THEM.
Q.: AT THE AUTOPSY DID YOU FIND A MASS OF MAGGOTS?
A.: YES. WHEN YOU GET A LARGE NUMBER OF LARVAE IN ONE PLACE, IN ONE AREA, THAT’S OFTEN REFERRED TO AS A MAGGOT MASS.
Q.: NOW, YOU DIDN’T FIND ANYTHING IN THE HEAD, CORRECT?
A.: NOT IN THE HEAD. THERE WERE ONE OR TWO MAGGOTS THAT WERE COMING UP THROUGH THE THROAT INTO THE MOUTH.
Q.: DID YOU ASK DR. BLACKBOURNE REGARDING BRAIN, ANY OBSERVATIONS OF BUGS OR MAGGOTS OR FLIES IN THE BRAIN?
A.: YES, I DID.
Q.: WHAT DID YOU LEARN?
A.: I WAS SURPRISED. THERE WERE NOT ANY IN THE BRAIN AREA IN THE SKULL. AND SO I ASKED HIM IF THAT WAS TYPICAL BECAUSE HE’S SEEN A LOT MORE AUTOPSIES THAN I HAVE. AND HE DIDN’T THINK IT WAS UNUSUAL TO HAVE THE BRAIN AT THAT PART — AT THAT POINT AT LEAST INTACT AND IN A MEMBRANE.
Q.: BUT AT LEAST THERE WERE NO BUGS OR FLIES OR INSECTS THAT HAD MADE THEIR WAY INTO THE HEAD CAVITY.
A.: NOT THAT I SAW.
Q.: NOW, THE TRUNK AREA WHERE YOU SAW THIS MASS OF MAGGOTS, DID IT APPEAR THAT THE BODY HAD BEEN ATTACKED BY ANIMALS?
A.: THERE HAD BEEN DAMAGE TO THE ABDOMEN AND THE UPPER TORSO.
Q.: NOW, AS A BODY IS LAYING OUT IN THE OPEN WITHOUT ANY GUNSHOTS OR KNIFE WOUNDS, THE BODY THEN WOULD BE SEALED, CORRECT?
A.: YES.
Q.: THE SKIN WOULD BE COMPLETELY COVERING THE BODY.
A.: YES.
Q.: AND THERE WOULD BE NO ATTRACTIVE AREA FOR THESE INSECTS.
A.: WELL, OTHER THAN THE HEAD AREA OR THE UROGENITAL AREA.
Q.: BUT ONCE THE BODY IS LAYING THERE FOR HOWEVER LONG AND THEN AN ANIMAL COMES ALONG AND STARTS TO CHEW ON THE BODY, THAT WOULD BREAK THE SKIN, CORRECT?
A.: YES.
Q.: NOW, THERE’S NO WAY OF KNOWING HOW LONG A BODY WOULD BE THERE BEFORE THE ANIMALS ARRIVED, IS THERE?
A.: NOT THAT I’M AWARE OF.
Q.: BUT ONCE AN ANIMAL STARTS CHEWING ON THE BODY, THAT WOULD OPEN UP MOISTURE TO THE BODY, CORRECT?
A.: WELL, WHAT IT DOES IS IT OPENS UP THE BODY. AND IF THERE’S MOISTURE IN THE BODY, THEN THAT EXPOSES THAT, LEAVING A LOT OF SURFACE AGAIN AVAILABLE AREAS FOR FLIES TO BOTH BE ATTRACTED TO AND ALSO DEPOSIT EGGS.
Q.: AND IT WAS IN THESE CHEWED AREAS WHERE YOU SAW THE MAGGOT ACTIVITY PRIMARILY.
A.: THE MAGGOT MASS AND MOST OF THE LARVAL STAGES OF THE FLIES WERE RESTRICTED TO THE ABDOMINAL CAVITY.
Q.: BUT NONE ON THE AREAS WHERE THE SKIN WAS STILL INTACT.
A.: NO.
Q.: SO BY USING THOSE MAGGOTS FOUND IN THE TRUNK REGION, IF WE’RE TRYING TO SET A TIME LINE, FIRST OF ALL, WE WOULD HAVE TO WAIT FOR HOWEVER LONG IT TOOK FOR THE ANIMALS TO CREATE THAT OPENING IN THE BODY BEFORE THE FLIES WOULD THEN SHOW UP, AND THEN THE FLIES WOULD BEGIN THEIR ACTIVITY.
MR. BOYCE: OBJECTION.
MR. FELDMAN: OBJECTION.
MR. BOYCE: MISSTATES THE TESTIMONY.
THE COURT: OVERRULED.
YOU CAN ANSWER THAT.
THE WITNESS: YOU MAY HAVE FLIES THERE, BUT FOR THAT PARTICULAR AREA OF THE BODY WHERE THEY WERE LOCATED, YOU WOULD OBVIOUSLY HAVE TO HAVE AN OPENING FOR THEM TO GET IN.
MR. DUSEK: OKAY.
BY MR. DUSEK:
Q.: I THINK YOU TALKED ABOUT ONE OF THE FACTORS THAT MAY AFFECT THE MAXIMUM AMOUNT OF TIME THE BODY WAS EXPOSED THERE WAS THE AMOUNT OF FLIES IN THE AREA. IS THAT CORRECT?
A.: YES.
Q.: HOW WOULD THAT IMPACT YOUR ESTIMATION?
A.: WELL, THE — AGAIN I’M BASING THE ESTIMATION ON THE LARVAL STAGES. THE ASSUMPTION I MAKE IS THAT FLIES ARE AVAILABLE. AND THESE FLIES TEND TO BE VERY COMMON IN THE ENVIRONMENT BOTH IN RURAL SITUATIONS AND IN URBAN HABITATS.
Q.: ALL RIGHT.
SO YOUR ASSUMPTION IS THAT THEY ARE AVAILABLE UNDER ORDINARY CIRCUMSTANCES.
A.: YES.
Q.: IN THIS SITUATION, THIS YEAR, IS THAT ASSUMPTION CORRECT?
A.: FLIES ARE AVAILABLE BUT AT A MUCH LOWER POPULATION DENSITY THAN I’VE SEEN IN PREVIOUS YEARS.
Q.: HAVE YOU EVER SEEN THEM THIS LOW?
A.: NO.
Q.: AND WHAT YOU DO IN YOUR FIELD, AS I UNDERSTAND IT, IS THAT YOU TRY TO TAKE A KNOWN SITUATION AND RELATE IT TO THE CURRENT SITUATION TO MAKE YOUR CONCLUSIONS.
A.: YES.
Q.: AND THE SITUATION THIS YEAR HAS NEVER BEEN EXPERIENCED BY YOU BEFORE, IS THAT CORRECT?
A.: IT HASN’T BEEN EXPERIENCED BY ME SPECIFICALLY.
Q.: ALL RIGHT.
AND HOW DO YOU KNOW THE INSECT POPULATION IS AT A LEVEL YOU’VE NEVER SEEN BEFORE?
A.: ONE OF THE REASONS IS I HAVE PERSONALLY COLLECTED THROUGHOUT THE COUNTY IN VARIOUS SEASONS GOING BACK AS FAR AS ABOUT 1955, ’56. SO I DO HAVE SOME EXPERIENCE IN THAT REGIONALLY.
THE OTHER THING MORE SPECIFICALLY IS THERE ARE A NUMBER OF PEOPLE WHO GO OUT AND DO INSECT SURVEYS FOR CERTAIN REGIONS HAVING TO DO WITH, SAY, SENSITIVE OR THREATENED OR ENDANGERED SPECIES. AND THEIR ENCOUNTERING OF INSECTS AND THE LOW NUMBERS AND DIVERSITY ARE ALSO AN INDICATION THAT THE WEATHER SYSTEM OR PATTERNS WITHIN THE LAST YEAR HAD AN EFFECT BOTH ON ABUNDANCE AND DIVERSITY.
Q.: SO THE NUMBERS ARE DOWN OF INSECTS THIS YEAR.
A.: YES.
Q.: AND THE VARIETY THAT’S AVAILABLE IS DOWN ALSO.
A.: YES.
I SHOULD STIPULATE THAT TENDS TO BE NATURAL SITUATIONS. OBVIOUSLY IF YOU HAVE AN ARTIFICIAL SITUATION SUCH AS A DEVELOPMENT WITH ADDED WATER, PLANTS, AND THINGS LIKE THAT, THOSE SITUATIONS ARE GOING TO BE MAINTAINED MOSTLY AT THIS SAME LEVEL. BUT IN THE MORE RURAL ENVIRONMENTS, WHERE YOU HAVE A LOT OF NATIVE VEGETATION, NOT A WHOLE LOT OF IMPACT, THE INSECTS SEEM TO BE RESPONDING DIRECTLY TO THE WEATHER, AND THEY ARE DOWN IN NUMBER AND ABUNDANCE.
THE COURT: COUNSEL, WE ARE GOING TO GO AHEAD AND TAKE THE AFTERNOON BREAK.
LADIES AND GENTLEMEN, ON THE WAY BACK FROM LUNCH TODAY I NOTICED THE LADIES’ ROOM OVER HERE IS ON THE FRITZ. AND GIVEN THE NUMBER OF LADIES HERE AND IN THE AUDIENCE, I THINK WE’LL ADD ABOUT AN EXTRA FIVE MINUTES TO SEE IF WE CAN ACCOMMODATE EVERYBODY WITH A PORCELAIN FIXTURE OR TWO DOWN THE ROAD APIECE.
PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH ANY OTHER PERSONS NOR FORM OR EXPRESS ANY OPINIONS ON THE MATTER UNTIL IT IS SUBMITTED TO YOU.
LET’S BE OUTSIDE THE DOOR AT 3:20. 3:20, PLEASE.
(RECESS, 3:00 O’CLOCK, P.M., TO 3:20 O’CLOCK, P.M.)
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