30074 – July 30th 2002 -Transcript of David Westerfield Trial Day 25 – afternoon 2

TRIAL DAY 25 – PART 4 – afternoon 2


SAN DIEGO, CALIFORNIA, TUESDAY, JULY 30, 2002, (afternoon 2)


WITNESS:
Madison Lee Goff (Forensic science department university of Honolulu – continued)


9034

1 THE COURT: OKAY, MR. FELDMAN.

2

3 BY MR. FELDMAN:

4 Q.: SIR, HAVE YOU HAD AN OPPORTUNITY TO RUN THOSE

5 NUMBERS?

6 A.: YES.

7 Q.: WHAT NUMBER DID YOU COME UP WITH THIS TIME?

8 A.: 40.7.

9 Q.: 40.7.

10 LET’S TRY FEBRUARY THE 14TH. SIR, YOU WROTE ON

11 FEBRUARY THE 14TH THAT IN YOUR VIEW THE DAILY, A. D. H. TEMP WAS

12 62; IS THAT CORRECT?

13 A.: LET ME CHECK HERE. CORRECT.

14 Q.: YES?

15 A.: YES.

16 Q.: THANK YOU.

17 WOULD YOU PLEASE TELL US WHAT THE CORRECT NUMBER

18 IS?

19 A.: I HAVE 49.5

20 Q.: NOW, LET’S TRY FEBRUARY THE 15TH. SO ON FEBRUARY

21 15TH YOU NOTED THAT IT WAS 49.35; IS THAT CORRECT?

22 A.: I BELIEVE SO.

23 Q.: YOUR CHART?

24 A.: YES.

25 Q.: ON FEBRUARY 15TH — I’M SORRY, I JUST DIDN’T HEAR,

26 SIR.

27 A.: THAT’S CORRECT.

28 62.1.

9035

1 Q.: 62 .1? MIGHT HAVE JUXTAPOSED THOSE NUMBERS, HUH?

2 OR MAYBE YOU DIDN’T. WHAT DO YOU SAY?

3 MR. DUSEK: OBJECTION, ARGUMENTATIVE.

4 THE COURT: SUSTAINED.

5

6 BY MR. FELDMAN:

7 Q.: I’M SORRY, WHAT’S YOUR OPINION AS TO THE REASON WHY

8 WE SEE THESE MANY ERRORS IN YOUR DATA SET, SIR?

9 A.: I MADE A MISTAKE ADDING —

10 Q.: WELL —

11 A.: — USING MY COMPUTER.

12 Q.: WELL, THERE IS AT LEAST FIVE MISTAKES, SIR; ISN’T

13 THAT TRUE?

14 A.: THAT’S CORRECT.

15 MR. DUSEK: OBJECTION, ARGUMENTATIVE.

16 THE COURT: OVERRULED. THE ANSWER WILL STAND.

17

18 BY MR. FELDMAN:

19 Q.: AND THESE MISTAKES AFFECT THE ACCURACY OF YOUR

20 ESTIMATES WITH REGARD TO THE POSTMORTEM INTERVAL; ISN’T THAT

21 TRUE?

22 A.: YES.

23 Q.: EXCUSE ME.

24 (PAUSE)

25 MR. FELDMAN: NO FURTHER QUESTIONS.

26 THE COURT: ALL RIGHT. MR. DUSEK.

27

28 ///

9036

1 REDIRECT EXAMINATION +

2 BY MR. DUSEK:

3 Q.: LET’S SEE IF THEY DO AFFECT YOUR NUMBERS HERE, DR.

4 GOFF.

5 A.: OKAY.

6 Q.: WHEN YOU CAME UP WITH THE TOTAL AMOUNT OF THE A. D.

7 H. YOU WERE BASICALLY ADDING THE NUMBERS FROM A PERIOD OF TIME;

8 IS THAT CORRECT?

9 A.: THAT’S CORRECT.

10 Q.: AND FROM WHAT DIRECTION WERE YOU ADDING THE

11 NUMBERS?

12 A.: I WAS ADDING FROM THE 27TH DOWN TOWARDS THE 2ND.

13 Q.: SO WHEN YOU CAME TO THE A. D. H. FOR FEBRUARY 9TH

14 YOU WERE ADDING NUMBERS FROM THE 27TH OF FEBRUARY —

15 A.: 27TH TO THE 9TH.

16 Q.: — TO THE 9TH OF FEBRUARY.

17 SO IF THERE WAS AN ERROR ON FEBRUARY 8TH, THAT

18 WOULD NOT GO INTO THE CALCULATION, WOULD IT?

19 A.: THAT’S CORRECT, IT WOULD NOT.

20 Q.: SO THAT WOULD NOT MAKE A DIFFERENCE?

21 A.: MAKE NO DIFFERENCE IN MY ONSET OF THE 9TH.

22 Q.: AND IF YOU HAD AN ERROR ON THE 7TH, THAT WOULD NOT

23 MAKE A DIFFERENCE, WOULD IT?

24 A.: NO, IT WOULD NOT.

25 Q.: BECAUSE IT WAS PAST THE 9TH, CORRECT?

26 A.: THAT’S CORRECT.

27 Q.: AND THE DATES THAT HE GAVE YOU ON THE 14TH AND

28 15TH, IF WE HAVE THE DATES — THE NUMBERS THAT YOU HAVE DEPICTED

9037

1 FROM YOUR CHART WERE 62 AND 49.5, CORRECT?

2 A.: THAT’S CORRECT.

3 Q.: AND ON THE RE-EVALUATING, RECOUNTING ‘EM BASICALLY

4 WE HAVE THEM REVERSED, CORRECT?

5 A.: THAT’S CORRECT.

6 Q.: SO, IF WE ADD THOSE TWO DATES IN ON THE 14TH AND

7 15TH WE WOULD STILL COME TO THE SAME TOTAL NUMBER, WOULDN’T WE?

8 A.: THAT’S CORRECT.

9 Q.: SO WOULD THAT OR WOULD THAT NOT CHANGE YOUR

10 ESTIMATE?

11 A.: MY ESTIMATE WOULD REMAIN THE SAME. UNFORTUNATELY,

12 WHILE ENTERING THINGS IN THE COMPUTER I MADE A MISTAKE AND

13 TRANSPOSED THOSE FIGURES.

14 Q.: ALL RIGHT.

15 THE QUESTIONS WERE ASKED REGARDING WHETHER OR NOT

16 YOU HAD ACCESS TO THE BUGS, THE INSECTS. DO YOU KNOW WHERE THEY

17 WERE WHEN YOU WERE READY TO LOOK AT THEM AND ASSESS THEM?

18 MR. FELDMAN: EXCUSE ME. THAT ASSUMES FACTS NOT IN

19 EVIDENCE.

20 THE COURT: OVERRULED.

21 YOU MAY ANSWER.

22 THE WITNESS: THANK YOU.

23 AT THE TIME I ASKED TO SEE THE INSECTS I WAS TOLD

24 THAT —

25 MR. BOYCE: HEARSAY.

26 THE COURT: SUSTAINED.

27 NEED NOT ANSWER, DOCTOR.

28 THE WITNESS: OKAY.

9038

1 BY MR. DUSEK:

2 Q.: DO YOU KNOW WHETHER OR NOT NEAL HASKELL HAD THE

3 BUGS AT THE TIME?

4 MR. BOYCE: HEARSAY.

5 THE COURT: OVERRULED.

6 MR. FELDMAN: NO FOUNDATION.

7 THE COURT: LAY THE FOUNDATION AND I’LL ALLOW THE

8 INQUIRY, MR. DUSEK.

9

10 BY MR. DUSEK:

11 Q.: YOU ASKED FOR THE BUGS, DIDN’T YOU?

12 A.: YES, I DID.

13 Q.: YOU ASKED US TO PROVIDE THEM FOR YOU, DIDN’T YOU?

14 A.: YES, I DID.

15 Q.: WE TOLD YOU WE COULDN’T GET THEM FOR YOU, CORRECT?

16 A.: THAT’S CORRECT.

17 MR. FELDMAN: HEARSAY, MOTION TO STRIKE.

18 THE COURT: YES, AS TO THE CONCLUSION THE JURY IS TO

19 DISREGARD THE LAST STATEMENT.

20

21 BY MR. DUSEK:

22 Q.: HAVE YOU HAD A CHANCE TO READ NEAL HASKELL’S

23 REPORTS?

24 A.: YES, I DID.

25 Q.: DO YOU KNOW WHETHER OR NOT HE HAD THE BUGS BASED ON

26 HIS REPORT?

27 A.: YES. ACCORDING TO HIS REPORT, HE HAD THE INSECTS

28 AND HE HAD SENT SOME OF THEM OFF TO ROBERT HALL FOR CONFIRMATION

9039

1 AND IDENTIFICATION.

2 Q.: QUESTIONS WERE ASKED REGARDING A BASIC PREMISE OF

3 FLIES GOING TO THE BODY. THAT IS A BASIC PREMISE THAT

4 ENTOMOLOGISTS OPERATE ON, ISN’T THERE?

5 A.: YES. FLIES WILL BE ATTRACTED VERY QUICKLY UNLESS

6 THERE’S SOME TYPE OF A BARRIER OR SOMETHING HAPPENS WHICH WOULD

7 MAKE THEM UNATTRACTED.

8 Q.: IN A REAL LIFE CASE DO YOU HAVE TO TAKE INTO

9 CONSIDERATION THOSE VARIABLES?

10 A.: YES, YOU DO.

11 Q.: WHY?

12 A.: BECAUSE TRYING TO UNDERSTAND WHAT HAS HAPPENED WITH

13 THE INSECT POPULATION, WHAT HAS HAPPENED IN TERMS OF THE

14 INVASION OF THE BODY, YOU HAVE TO BE AWARE OF THESE VARIABLES

15 AND TAKE THEM INTO CONSIDERATION, OTHERWISE YOU’RE WORKING MORE

16 OR LESS IN THE BLIND.

17 Q.: ONE OF THE PREMISES IS THAT THE FLIES GO FAIRLY

18 QUICKLY TO THE BODY; IS THAT CORRECT?

19 A.: YES.

20 Q.: ARE YOU ASSUMING THAT THERE IS A STANDARD

21 POPULATION OF FLIES WHEN YOU MAKE THAT ASSUMPTION?

22 A.: YOU’RE ASSUMING THAT FLIES ARE PRESENT IN THE AREA.

23 AND IF FLIES ARE NOT PRESENT IN THE AREA IT WILL TAKE A WHILE

24 BEFORE THEY ARE ATTRACTED TO COME AND EXPLOIT THE BODY.

25 Q.: AND THERE IS NO WAY TO PREDICT HOW LONG THAT WHILE

26 IS, IS THERE?

27 A.: NO. THEY’RE — TYPICALLY YOU SEE THEM VERY

28 QUICKLY, BUT THERE ARE INSTANCES WHERE THEY DO NOT SHOW UP FOR A

9040

1 PERIOD OF TIME.

2 Q.: AND EVEN ONCE THEY APPEAR IS THERE A BASIC

3 ASSUMPTION THAT THE BODY IS RECEPTIVE TO THE LAYING OF EGGS?

4 A.: YES. IF THEY ARE ATTRACTED TO THE BODY AND THE

5 BODY IS IN CONDITION, WHICH IS ADEQUATE FOR OR SUITABLE FOR

6 LAYING EGGS, THEY WILL LAY EGGS.

7 Q.: AND IF THE BODY IS NOT RECEPTIVE TO EGGS, THEN WHAT

8 HAPPEN?

9 A.: BASICALLY, IF THE BODY IS NOT SOMETHING THAT THEY

10 CAN UTILIZE TO RAISE THEIR YOUNG THEY’RE GOING TO GO AND LOOK

11 FOR SOMEWHERE ELSE TO LAY THEIR EGGS.

12 Q.: ON THE DIAGRAMS THAT WE HAVE HERE REGARDING SINGING

13 HILLS, THAT WOULD BE EXHIBIT 192, YOU TOLD US HERE THAT WE ARE

14 OPERATING ON A DATE IN FEBRUARY, FEBRUARY 12TH POSSIBLY THROUGH

15 FEBRUARY 2ND OF 19 — OR I’M SORRY — OF 2002; IS THAT CORRECT?

16 A.: SINGING HILLS, BASICALLY THERE YOU HAD REACHED THE

17 THIRD INSTAR ON THE 12TH OF FEBRUARY AND YOU HAD NOT YET REACHED

18 A POST FEEDING STAGE.

19 Q.: AND THE REACHING THE THIRD INSTAR STAGE WOULD MEAN

20 THE FLIES, LARVA WOULD BE AT A CERTAIN SIZE, CORRECT?

21 A.: THEY WOULD HAVE JUST MOLTED FROM THE SECOND INSTAR

22 INTO THE THIRD INSTAR.

23 Q.: AND BASED UPON THE REPORTS THAT YOU HAD, DID YOU

24 SEE ANY INDICATIONS THAT THEY HAD PROGRESSED OR PASSED BEYOND

25 THAT?

26 A.: YES.

27 Q.: WHAT DID YOU SEE?

28 A.: THE MEASUREMENTS WHICH WERE GIVEN IN DR. HASKELL’S

9041

1 REPORT INDICATED THAT THEY HAD ATTAINED THE THIRD INSTAR AND A

2 TOTAL LENGTH OF 17.8 MILLIMETERS AS THE MAXIMUM TOTAL.

3 Q.: IS THAT HOW YOU CAME UP WITH THE TWO DATES THAT WE

4 HAVE FOR SINGING HILLS OF FEBRUARY 2ND THROUGH FEBRUARY 12TH?

5 MR. FELDMAN: OBJECTION, MISSTATES THE EVIDENCE, YOUR

6 HONOR.

7 THE COURT: OVERRULED.

8 THE WITNESS: OKAY. THE PERIOD OF TIME OR THE

9 DEVELOPMENT INDICATES THAT THAT MAGGOT HAD TO BE SOMEWHERE

10 BETWEEN THE THIRD INSTAR AND PRIOR TO ENTERING THE POST FEEDING

11 THIRD INSTAR.

12

13 BY MR. DUSEK:

14 Q.: IS THAT WHY YOU CAME UP WITH THE FEBRUARY 2ND DATE?

15 A.: YES, PRIOR, YES.

16 Q.: COULD YOU TAKE THIS CHART, 169, THIS DIAGRAM OF

17 FEBRUARY — THE CALENDAR OF FEBRUARY, COULD YOU PUT GOFF WITH

18 SINGING HILLS FOR FEBRUARY — ON FEBRUARY 12TH AND FEBRUARY 2ND?

19 MR. FELDMAN: YOUR HONOR, OBJECT TO THIS. IT’S

20 MISLEADING.

21 THE COURT: OVERRULED.

22 MR. FELDMAN: OKAY.

23

24 BY MR. DUSEK:

25 Q.: I’M SORRY. THE TWO DATES THAT I WAS CONCERNED WITH

26 ARE FEBRUARY 12TH AND FEBRUARY 2ND —

27 A.: OH.

28 Q.: — BASED UPON THE INFORMATION WE JUST COVERED.

9042

1 THANK YOU, SIR.

2 AND THAT SINGING HILLS IS TO DESIGNATE IF WE WERE

3 TO USE THE TEMPERATURES FROM SINGING HILLS; IS THAT CORRECT?

4 A.: YES.

5 Q.: REGARDING THE BROWN FIELD DATA, YOU GAVE US

6 FEBRUARY 9TH WITH THE 16.1 DEGREES CELSIUS READING; IS THAT

7 CORRECT?

8 A.: THAT’S CORRECT.

9 Q.: AND THE FEBRUARY 4TH AT THE 23 DEGREE CELSIUS; IS

10 THAT CORRECT?

11 A.: THAT’S CORRECT.

12 Q.: FOR BROWN FIELD?

13 A.: YES.

14 Q.: COULD YOU TAKE THE SAME GREEN FELT PEN AND MARK ON

15 169 AGAIN ON FEBRUARY 9TH, IF YOU’D PUT YOUR INITIALS, YOUR

16 NAME, BROWN FIELD AND 16.1?

17 A.: OKAY. WE ALREADY HAVE THE NAME HERE.

18 Q.: ALL RIGHT.

19 IF YOU’D FILL IN THE REST THEN?

20 A.: SO BROWN FIELD —

21 Q.: PLEASE. AND THE SECOND ONE YOU HAD WAS FEBRUARY

22 4TH, BROWN FIELD, 23 DEGREES?

23 A.: (WITNESS WRITING ON DIAGRAM.)

24 Q.: THANK YOU, SIR.

25 NOW, IS THERE A PLUS OR MINUS TO ANY OR ALL OF

26 THOSE CALCULATIONS?

27 A.: THESE ARE NOT EXACT DATES. WHAT WE’RE LOOKING AT

28 ARE PLUS OR MINUS A DAY PROBABLY EITHER DIRECTION.

9043

1 Q.: WITH THOSE DATES ARE YOU ABLE TO TELL US WHETHER OR

2 NOT THERE WAS ANY BUG ACTIVITY ON THE BODY BEFORE THEN WHERE

3 SOME OF THEM HAD BEEN REMOVED?

4 MR. FELDMAN: I’M SORRY, SPECULATION OR VAGUE.

5 THE COURT: VAGUE, SUSTAINED. REPHRASE.

6

7 BY MR. DUSEK:

8 Q.: ARE YOU ABLE TO TELL US WHETHER OR NOT THAT WAS THE

9 EXACT DAY THAT THE FIRST BATCH OF EGGS WERE LAID ON THAT BODY?

10 MR. FELDMAN: I’M SORRY, JUST VAGUE AS TO THIS.

11 THE COURT: WHICH DATE? SUSTAINED.

12

13 BY MR. DUSEK:

14 Q.: ON ANY OF THOSE DATES, SELECT ANY OF THEM THAT

15 WE’RE TALKING ABOUT, CAN YOU TELL US WHETHER OR NOT THAT WAS THE

16 FIRST DAY THAT FLIES LAID EGGS ON THAT BODY?

17 A.: NO, I CAN’T.

18 Q.: WHY NOT?

19 A.: BECAUSE YOU HAVE A VERY GOOD ANT POPULATION IN THE

20 AREA WHICH COULD BE SIGNIFICANT AS PREDATORS, AND BASICALLY I’M

21 LOOKING AT MINIMUM PERIODS OF TIME.

22 Q.: CAN YOU GIVE US MAXIMUM PERIODS?

23 A.: NO, I CAN’T.

24 MR. DUSEK: THANK YOU, SIR.

25 THE COURT: ALL RIGHT. ANY RECROSS?

26 MR. FELDMAN: A LITTLE.

27

28 ///

9044

1 RECROSS-EXAMINATION +

2 BY MR. FELDMAN:

3 Q.: SIR, THIS ANT POPULATION IN THE AREA, YOU HAVE NO

4 PERSONAL KNOWLEDGE AS TO WHAT THE ANT POPULATION WAS, THAT’S

5 SPECULATION, ISN’T IT?

6 MR. DUSEK: OBJECTION, COMPOUNDS, ARGUMENTATIVE.

7 THE COURT: JUST REPHRASE IT.

8

9 BY MR. FELDMAN:

10 Q.: I’M SORRY. WITH REGARD TO YOUR STATEMENT

11 CONCERNING THE ANTS, THERE’S NO EVIDENCE THAT YOU’VE SEEN THAT

12 INDICATES THE ANTS WERE CARRYING OFF THE MAGGOT LARVAE, ISN’T

13 THAT TRUE?

14 A.: NO.

15 Q.: AND WITH REGARD TO — I’M SORRY, YOU SAID NO. YOU

16 MEAN TO AGREE WITH ME OR DISAGREE WITH ME?

17 A.: OKAY. I DID NOT SEE ANTS CARRYING OFF MAGGOTS.

18 Q.: ALL RIGHT.

19 A.: WHEN I VISITED THE SITE I SAW A LARGE POPULATION OF

20 TWO SPECIES OF ANTS IN THE AREA, AND DAVID FAULKNER IN HIS

21 REPORT NOTED THE PRESENCE OF ANTS.

22 Q.: NOW, YOU ALSO INDICATED THAT YOU RELIED ON MR.

23 HASKELL’S — I’M SORRY — DOCTOR HASKELL’S EVALUATION, AND YOU

24 NOTED THAT DR. HASKELL NOTED ONE ANT; ISN’T THAT TRUE?

25 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE.

26 THE COURT: OVERRULED AS TO WHAT DR. HASKELL REPRESENTED.

27 YOU MAY ANSWER, DOCTOR.

28 THE WITNESS: IF I CAN REFER TO HIS REPORT.

9045

1 BY MR. FELDMAN:

2 Q.: PLEASE.

3 A.: KEEPING IN MIND THAT THIS REPORT, AS I RECALL, IS A

4 REFLECTION OF SPECIMENS THAT WERE SHIPPED TO HIM BY DAVID

5 FAULKNER, THERE IS ONE ANT LISTED.

6 Q.: ARE YOU INFERRING THAT MR. FAULKNER WOULD WITHHOLD

7 EVIDENCE?

8 MR. DUSEK: OBJECTION, ARGUMENTATIVE, SPECULATION.

9 THE COURT: SUSTAINED.

10 YOU NEED NOT ANSWER, SIR.

11 MR. FELDMAN: YOUR HONOR, I WANT A SIDE BAR BEFORE I GO

12 TO THE NEXT AREA, PLEASE.

13 THE COURT: ALL RIGHT.

14 OPHELIA.

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18 (BENCH CONFERENCE NOT MADE A PART OF PUBLIC RECORD.)

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9046

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9047

1

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7 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
8

9 BY MR. FELDMAN:

10 Q.: SIR, I’D LIKE TO DIRECT YOUR ATTENTION TO 169. YOU

11 WERE ASKED BY MR. DUSEK TO WRITE ON THE 12TH THAT “GOFF, SINGING

12 HILLS,” DO YOU RECALL THAT?

13 A.: YES.

14 Q.: I’D LIKE TO ADD TO THIS AN ASTERICK AND PUT AT THE

15 BOTTOM “NOT RELIED UPON BY DR. GOFF.” CAN YOU PLEASE DO THAT?

16 MR. DUSEK: OBJECTION, ARGUMENTATIVE.

17 THE COURT: SUSTAINED.

18

19 BY MR. FELDMAN:

20 Q.: WOULD YOU MAKE MORE ACCURATE THE DIAGRAM IN SOME

21 MANNER THAT YOU DID NOT RELY UPON THE SINGING HILLS DATA?

22 MR. DUSEK: ARGUMENTATIVE.

23 THE COURT: SUSTAINED. IT’S IN THE FORM OF TESTIMONY IN

24 FRONT OF THE JURY. LET’S MOVE ON.

25

26 BY MR. FELDMAN:

27 Q.: IT’S TRUE YOU DID NOT USE SINGING HILLS DATA. YOU

28 DECIDED TO USE BROWN FIELD?

9048

1 A.: I BELIEVED THAT BROWN FIELD PRESENTED A MORE

2 ACCURATE REFLECTION OF WHAT WAS GOING ON.

3 Q.: SO THEREFORE, YOU DID NOT USE SINGING HILLS, RIGHT?

4 MR. DUSEK: OBJECTION, MISSTATES THE EVIDENCE. HE USED

5 IT.

6 THE COURT: SUSTAINED.

7

8 BY MR. FELDMAN:

9 Q.: IN YOUR OPINION RENDERED — MR. DUSEK ASKED YOU

10 JUST A MOMENT AGO WITH REGARD TO THE FLIES MIGHT THEY DELAY

11 THEIR ARRIVAL.

12 ISN’T IT TRUE, SIR, THAT WITH REGARD TO THE

13 CALLIPHORIDAE OF WHICH P. SERICATA AND P. REGINA I GUESS ARE A

14 PART, THEY’RE ONE OF THE COMMON EARLIER INVADERS OF A

15 DECOMPOSING BODY?

16 A.: THAT’S CORRECT.

17 Q.: IS IT ALSO TRUE IF THE BODY’S EXPOSED THESE FLIES

18 WILL ARRIVE WITHIN A FEW MINUTES TO AN HOUR OR SO FOLLOWING

19 DEATH?

20 A.: NO.

21 Q.: WASN’T IT TRUE YOU TESTIFIED IN A CASE IN SEPTEMBER

22 OF 1999, QUOTE, “IF THE BODY’S EXPOSED THESE FLIES WILL ARRIVE

23 WITHIN A FEW MINUTES TO AN HOUR OR SO FOLLOWING DEATH,” PERIOD?

24 A.: YES.

25 Q.: IT’S ALSO THE CASE, ISN’T IT, THAT WITH REGARD TO

26 THE PRIMARY TARGETS OF THE FLIES, THE PRIMARY AREA IS GOING TO

27 BE THE NATURAL BODY OPENINGS, THOSE ASSOCIATED WITH THE HEAD,

28 THE ANUS AND THE GENITALS, CORRECT?

9049

1 MR. DUSEK: OBJECTION, ASKED AND ANSWERED, BEYOND THE

2 SCOPE.

3 THE COURT: OVERRULED. YOU CAN ANSWER ONE MORE TIME,

4 DOCTOR.

5 THE WITNESS: YES.

6 MR. FELDMAN: THANK YOU.

7 NO FURTHER.

8 THE COURT: ANYTHING FURTHER?

9 MR. DUSEK: NO, THANK YOU.

10 THE COURT: ALL RIGHT. THE DOCTOR SHOULD BE EXCUSED; IS

11 THAT CORRECT?

12 MR. FELDMAN: NO OBJECTION.

13 THE COURT: THANK YOU, DOCTOR, FOR COMING IN. YOU’RE

14 FREE TO LEAVE THESE PROCEEDINGS. HOWEVER, YOU’RE UNDER AN

15 ADMONITION NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THIS

16 MATTER’S CONCLUDED, ALL RIGHT?

17 THE WITNESS: OKAY.

18 THE COURT: ALL RIGHT. THANK YOU.

19 MR. DUSEK.

20 MR. DUSEK: I’LL BE ASKING THAT THE UNADMITTED EVIDENCE

21 ITEMS BE ADMITTED.

22 THE COURT: ALL RIGHT.

23 MR. FELDMAN: YOUR HONOR, CAN WE DISCUSS THAT NOT IN THE

24 PRESENCE OF THE JURY?

25 THE COURT: WELL, OBVIOUSLY WE WON’T, JUST LIKE

26 EVERYTHING ELSE.

27 MR. FELDMAN: I’M SORRY.

28 THE COURT: YOU ARE MOVING THE ADMISSION OF EXHIBITS NOT

9050

1 HERETOFORE ADMITTED?

2 MR. DUSEK: WE ARE, YOUR HONOR. WE WILL BE RESTING

3 AGAIN.

4 THE COURT: LET’S TALK AT SIDEBAR — WELL, YOU’RE READY

5 TO GO THURSDAY MORNING, RIGHT?

6 MR. FELDMAN: YES, YOUR HONOR.

7 THE COURT: OKAY. LADIES AND GENTLEMEN, WE’VE GONE

8 THROUGH THE PEOPLE’S CASE IN CHIEF. WE’VE GONE THROUGH THE

9 DEFENSE. WE’VE NOW GONE THROUGH COMPLETELY THE PEOPLE’S

10 REBUTTAL TO THE DEFENSE.

11 WHAT REMAINS OF THE TRIAL BASICALLY IS ANY

12 SURREBUTTAL EVIDENCE THAT DEFENSE ELECTS TO PRESENT. AND I AM

13 INFORMED THAT THEY ANTICIPATE A FULL DAY ON THURSDAY FOR THEIR

14 PRESENTATION. WHETHER IT GOES BEYOND THURSDAY OR NOT I DO NOT

15 KNOW AT THIS TIME. I SHOULD BE ABLE TO ADVISE YOU ON THURSDAY,

16 HOWEVER.

17 SO WHAT THAT MEANS BASICALLY IS THIS HERKY-JERKY

18 TRAIN IS GOING TO DO ANOTHER JERK TOMORROW, AND YOU’LL BE ABLE

19 TO GO TO WORK OR DO WHATEVER ELSE YOU’D LIKE TO DO ON A DAY OFF.

20 SO THE BOTTOM LINE IS WE WILL BE OFF ON THIS MATTER TOMORROW.

21 PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO

22 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR

23 WITH ANY OTHER PERSONS, NOR FORM OR EXPRESS ANY OPINIONS ON THIS

24 MATTER UNTIL IT IS SUBMITTED TO YOU FOR DECISION.

25 WE’LL CONTINUE TO USE THE MEETING PLACE IN THE

26 MORNING AND HOPEFULLY THE PADRES CAN BEAT THE CHICAGO CUBS. I

27 MEAN, I DON’T KNOW IF IT’S POSSIBLE THEY’RE GOING TO WIN ANOTHER

28 GAME BUT, AT ANY RATE, WE’LL SEE YOU ON THURSDAY MORNING, 9:00

9051

1 A.M.

2 (AT 3:29 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
3

4 THE COURT: THE RECORD SHOULD REFLECT THE JURORS AND

5 ALTERNATES HAVE LEFT THE COURTROOM.

6 COUNSEL, IN LIGHT OF THE FACT WE HAVE THE TIME, WE

7 MIGHT AS WELL GO OVER THE EXHIBITS.

8 ALL RIGHT. ACCORDING TO PEGGY’S RECORDS, STARTING

9 WITH THOSE THAT WERE NOT ADMITTED ON JULY 10TH, WE HAVE EXHIBIT

10 158, WHICH IS A THREE-PAGE INTERNET EXPLORER HISTORY THAT THE

11 COURT SPECIFICALLY DID NOT ADMIT ON THAT DATE. IT’S MY

12 UNDERSTANDING IT WILL NOT BE SOUGHT FOR INTRODUCTION.

13 MR. CLARKE: ACTUALLY, AT THIS POINT, YOUR HONOR, MR.

14 WATKINS TESTIFIED EXTENSIVELY ABOUT IT.

15 THE COURT: WELL, THAT’S CORRECT. WE’VE HAD SUBSEQUENT

16 TESTIMONY TO THE DATE THAT RULING WAS MADE ON JULY 10TH.

17 DEFENSE POSITION ON 158?

18 MR. FELDMAN: IT’S HEARSAY.

19 THE COURT: THAT’S DULY NOTED. HE WAS CROSS-EXAMINED

20 EXTENSIVELY, AND I CAN TELL YOU THAT JURORS LOOKING AT IT AREN’T

21 GOING TO BE ABLE TO FIGURE OUT A THING ABOUT IT. BUT IF THEY

22 WANT TO LOOK AT IT, THEY’RE WELCOME TO. 158 WILL BE ADMITTED

23 OVER THE OBJECTION OF THE DEFENSE. OKAY.

24 (RECEIVED EVID: ^ TRIAL EXHIBIT 158 )

25 MR. CLARKE: I SHOW THE NEXT AS 183, YOUR HONOR.

26 THE COURT: WELL, THAT WAS ACTUALLY A DEFENSE EXHIBIT BUT

27 I THINK IT WAS MARKED BY — PREMARKED AND THEN USED BY THE

28 PROSECUTION, SO —

9052

1 MR. FELDMAN: YES, YOUR HONOR. IT’S THIS CHART.

2 THE COURT: YES, THE QUOTE FROM DR. HASKELL’S BOOK. I’M

3 ASSUMING THE DEFENSE HAS NO OBJECTION TO THE ADMISSION OF THAT?

4 MR. FELDMAN: THAT’S CORRECT.

5 THE COURT: THAT WILL BE ADMITTED.

6 (RECEIVED EVID: ^ TRIAL EXHIBIT 183 )

7 MR. CLARKE: 186, THE BOARD WITH THE TEMPERATURES FROM

8 THE VARIOUS SOURCES.

9 THE COURT: ALL RIGHT.

10 ANY OPPOSITION?

11 MR. FELDMAN: NO.

12 THE COURT: ADMITTED.

13 AND WE’VE GOT 187, WHICH IS THE WEATHER DATA AT SINGING

14 HILLS.

15 ANY OPPOSITION?

16 MR. FELDMAN: YES. FOUNDATION, ACCURACY. IT’S NOT

17 ACCURATE. IT’S MISLEADING.

18 THE COURT: WOULD THE PEOPLE LIKE TO BE HEARD OR SUBMIT?

19 MR. CLARKE: SUBMITTED, YOUR HONOR.

20 THE COURT: ALL RIGHT. DOESN’T GO TO THE ADMISSIBILITY.

21 IT GOES TO THE WEIGHT THAT THE JURY ELECTS TO GIVE IT, SO 187

22 WILL BE ADMITTED OVER THE OBJECTION OF THE DEFENSE.

23 188 IS A WINDOWS MEDIA PLAYER PAPER.

24 MR. CLARKE: THAT WAS THE DOCUMENT MR. WATKINS DESCRIBED

25 SHOWING WHAT FILES HAD BEEN PLAYED.

26 THE COURT: RIGHT.

27 ANY OPPOSITION?

28 MR. FELDMAN: THE SAME.

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1 THE COURT: DULY NOTED.

2 MR. FELDMAN: THANK YOU.

3 THE COURT: IT WILL BE ADMITTED OVER THE OBJECTION OF THE

4 DEFENSE.

5 (RECEIVED EVID: ^ TRIAL EXHIBIT 187 )

6 (RECEIVED EVID: ^ TRIAL EXHIBIT 188 )

7 THE COURT: THEN WE HAVE 191 WHICH IS DETECTIVE PARGA’S

8 SHIRTS.

9 ANY OBJECTION?

10 MR. FELDMAN: SUBMITTED.

11 THE COURT: IT WILL BE ADMITTED.

12 (RECEIVED EVID: ^ TRIAL EXHIBIT 191 )

13 THE COURT: THEN WE HAVE THE TWO CHARTS PREPARED BY DR.

14 GOFF AT THE REQUEST OF THE PEOPLE, WHICH ARE 192, 193.

15 ANY OPPOSITION?

16 MR. FELDMAN: NO, YOUR HONOR.

17 THE COURT: THEY WILL ADMITTED.

18 (RECEIVED EVID: ^ TRIAL EXHIBIT 192 )

19 (RECEIVED EVID: ^ TRIAL EXHIBIT 193 )

20 THE COURT: WITH THAT THE PEOPLE’S EXHIBITS HAVE EITHER

21 BEEN ADMITTED OR NOT SOUGHT FOR INTRODUCTION.

22 ALL RIGHT.

23 MR. FELDMAN, I WOULD LIKE ON THURSDAY, JUST FOR

24 EXPEDIENCY’S SAKE, FOR YOU TO BE IN A POSTURE AS HUMANLY

25 POSSIBLE TO LET THE PEOPLE KNOW WHETHER THEY’RE GOING TO BE

26 ARGUING THIS MONDAY OR NOT.

27 MR. FELDMAN: YES, SIR.

28 THE COURT: ALSO HOW MUCH OF THURSDAY YOU’RE GOING TO

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1 NEED.

2 BUT ASSUMING YOU NEED ALL DAY THURSDAY, WE WILL USE

3 FRIDAY FOR FINAL JURY INSTRUCTIONS. DEPENDING ON HOW MUCH YOU

4 USE ON THURSDAY, WE MAY HAVE THAT DISCUSSION ON THURSDAY

5 AFTERNOON. SO WHAT I’M TELLING BOTH SIDES IS THAT THE ARGUMENTS

6 REGARDING JURY INSTRUCTIONS, I WANT YOU BOTH TO BE PREPARED TO

7 CONDUCT THOSE OR HAVE ANY ADDITIONAL OR MODIFIED INSTRUCTIONS

8 READY FOR DISCUSSION ON THURSDAY AFTERNOON.

9 MR. CLARKE: YOUR HONOR, AT THIS POINT ALSO WE HAVE NO

10 NAMES, NO REPORTS, NO NOTES, NO ANYTHING AS FAR AS THE DEFENSE

11 IS CONCERNED.

12 THE COURT: ALL RIGHT.

13 WELL, YOU’VE GOT TIME TO MEET AND CONFER TODAY.

14 AND I EXPECT, MR. FELDMAN, YOU’LL PROVIDE THAT INFORMATION.

15 MR. FELDMAN: OF COURSE, IF I — BUT SO THAT YOU ARE

16 CLEAR, I DON’T HAVE ANY REPORTS. YOU KNOW WE’VE BEEN MOVING IN

17 HIGH GEAR. THERE IS NO REPORTS I HAVE.

18 THE DEFENSE WILL MAKE A DECISION, AFTER WE HAVE AN

19 OPPORTUNITY TO MEET TODAY, AS TO WHETHER WE ARE GOING TO PROCEED

20 WITH THE WITNESS I HAD CONTEMPLATED CALLING PRIOR TO THE

21 CROSS-EXAMINATION OF DR. GOFF. WE MAY CHANGE OUR MIND.

22 THE COURT: ALL RIGHT.

23 WELL, IF, HOWEVER, THAT WITNESS IS GOING TO BE

24 UTILIZED, I’LL EXPECT FULL DISCLOSURE AND WHAT, IF ANYTHING, IS

25 AVAILABLE.

26 MR. FELDMAN: BY 5 O’CLOCK TODAY, YOUR HONOR.

27 MR. DUSEK: APPARENTLY THERE ARE MORE WITNESSES IF HE’S

28 GOING TO FILL UP THE DAY. WE WERE TOLD YESTERDAY THAT THOSE

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1 NAMES WOULD BE PROVIDED AS SOON AS THE WITNESS GETS OFF THE

2 STAND TODAY.

3 THE COURT: I ASSUMING THAT’S BEFORE 5:00 TODAY?

4 MR. FELDMAN: I WILL LET THEM KNOW BEFORE 5:00 TODAY.

5 THE COURT: ALL RIGHT. THE SPIRIT OF COOPERATION GOES

6 ON. I’M GLAD TO SEE THAT. ALL RIGHT.

7 WE’LL BE IN RECESS. WE’LL MAKE IT 8:45 THURSDAY

8 MORNING JUST IN CASE THERE’S SOME LOOSE ENDS WE NEED TO DEAL

9 WITH. SO WE’LL BE IN RECESS TILL 8:45.

10

11 (AT 3:36 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 8:45 A.M. THURSDAY, AUGUST 1, 2002.)
12
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30073 - July 30th 2002 -Transcript of David Westerfield Trial Day 25 - afternoon 1