43 – Day 11- June 20th 2002 – Transcript criminal trial David Westerfield

TRIAL DAY 11 – PART 4 – afternoon 2
SAN DIEGO, CALIFORNIA, THURSDAY, JUNE 20, 2002 (afternoon 2)


WITNESS:
Catherine Theisen (mitochondrial D.N.A. unit of the F. B. I. laboratory in Washington, D. C. – Cross-examination)


1 THE COURT: ALL RIGHT. WELCOME BACK, LADIES AND

2 GENTLEMEN.

3 ALL RIGHT. MR. FELDMAN.

4 MR. FELDMAN: THANK YOU, YOUR HONOR.

5

6 CROSS-EXAMINATION +

7 BY MR. FELDMAN:

8 Q. GOOD AFTERNOON, MA’AM.

9 A. GOOD AFTERNOON.

10 Q. YOU PREVIOUSLY QUALIFIED TO TESTIFY AS AN EXPERT

11 BEFORE, IS THAT RIGHT?

12 A. YES, I HAVE.

13 Q. YOU’VE RECEIVED TRAINING IN HOW TO TESTIFY?

14 A. YES, I HAVE.

15 Q. AND YOU TOLD US YOU WERE A GRADUATE OF JOHNS

16 HOPKINS?

17 A. I RECEIVED MY PHD THERE, YES.

18 Q. I’D LIKE TO JUST KIND OF, IF I CAN GO

19 CHRONOLOGICALLY THROUGH YOUR DIRECT, I’M GOING TO TRY AND DO

20 THAT, ALTHOUGH SOMETIMES I DON’T GO QUITE CHRONOLOGIC.

21 YOU SPECIFICALLY INDICATED I THINK THAT AMONG THE

22 FIRST PIECES OF EVIDENCE THAT YOU HAVE LOOKED AT WERE CALLED Q1

23 THROUGH 9, IS THAT RIGHT, MA’AM?

24 A. I BELIEVE IT WAS Q1 THROUGH 10.

25 Q. OKAY.

26 I WANT TO FOCUS YOU FIRST ON THE FIRST SERIES OF

27 HAIRS THAT YOU RECEIVED. THESE WERE SUBMITTED TO AN EXAMINER

28 NAMED KERRY O-I-E-N; IS THAT CORRECT?
5873
1 A. YES.

2 Q. HOW DO YOU SAY THAT LAST NAME?

3 A. OIEN.

4 Q. OIEN. AND IS KERRY A MALE OR A FEMALE?

5 A. A MALE.

6 Q. MR. OIEN DID — I THINK YOU DESCRIBED IT KIND OF AS

7 A SORT OF A SCREENING, IS THAT — WAS THAT HIS JOB?

8 A. HE DOES BOTH THE SCREENING AND COMPARISON. IN THIS

9 SITUATION THE SAMPLES WITH WHICH HE COULD POSSIBLY COMPARE WERE

10 Q10 HAIRS IDENTIFIED AS COMING FROM THE VICTIM’S HAIR BRUSH.

11 Q. BUT HE WAS SPECIFICALLY PROVIDED CAUCASIAN HEAD

12 HAIRS, WHICH WERE SUITABLE FOR MEANINGFUL MICROSCOPIC COMPARISON

13 PURPOSES, IS THAT RIGHT?

14 A. I DON’T HAVE HIS REPORT IN FRONT OF ME.

15 Q. WOULD LOOKING AT IT REFRESH YOUR RECOLLECTION? IS

16 IT PART OF YOUR CASE FILE?

17 A. IT IS NOT PART OF MY CASE FILE.

18 Q. DO YOU RECALL HIM INDICATING THAT THE LIMITED

19 NATURE OF THE Q10 SAMPLE PRECLUDED MEANINGFUL MICROSCOPIC

20 COMPARISON?

21 MR. CLARKE: OBJECTION, NO FOUNDATION.

22 THE COURT: SHE CAN ANSWER WHETHER SHE KNEW THAT OR NOT.

23 YOU MAY ANSWER, DOCTOR.

24 THE WITNESS: YES. I DID READ THAT IN HIS REPORT.

25

26 BY MR. FELDMAN:

27 Q. SO YOU WERE AWARE THAT SOME OF THE EVIDENCE HAIRS

28 THAT WERE PROVIDED TO YOU WERE OF SUCH I GUESS QUALITY THAT IT
5874
1 PRECLUDED MEANINGFUL MICROSCOPIC COMPARISON; IS THAT RIGHT?

2 MR. CLARKE: SAME OBJECTION, YOUR HONOR.

3 THE COURT: OVERRULED.

4 WERE YOU AWARE OF THAT, DOCTOR?

5 THE WITNESS: THE QUALITY SPECIFICALLY OF THE Q10 HAIRS

6 FROM THE HAIR BRUSH WERE PROVIDED AS A LIMITED KNOWN SAMPLE. IT

7 WAS A QUALITY OF THOSE SAMPLES WHICH WAS INSUFFICIENT TO CONDUCT

8 A MEANINGFUL COMPARISON.

9 Q. OKAY.

10 BUT THE WORDS USED WERE “PRECLUDES A MEANINGFUL

11 MICROSCOPIC COMPARISON.” WHAT DOES IT MEAN TO PRECLUDE

12 SOMETHING?

13 A. THAT HE CANNOT CONDUCT A COMPARISON USING THOSE

14 HAIR BRUSH HAIRS AS A KNOWN STANDARD.

15 Q. AND THE SPECIFIC HAIRS THAT WERE BEING REFERENCED

16 INCLUDED Q2, Q7.1, Q8.1 AND Q9.1, IS THAT RIGHT?

17 A. AGAIN, I DON’T HAVE HIS REPORT IN FRONT OF ME. I

18 DO KNOW THAT THOSE WERE THE HAIRS THAT WERE THEN TRANSFERRED TO

19 ME FOR MITOCHONDRIAL D. N. A. ANALASIS.

20 Q. WITH REGARD TO THE HAIRS THAT WERE TRANSFERRED TO

21 YOU FOR MITOCHONDRIAL D. N. A. ANALYSIS, MA’AM, DID YOU HAVE TO

22 DESTROY THEM OR CUT THEM OR DO ANYTHING TO THEM?

23 A. YES. THE PROCESS OF DOING A MITOCHONDRIAL D. N. A.

24 EXAMINATION DOES CONSUME THE EVIDENCE. WE TYPICALLY TAKE TWO

25 CENTIMETERS OF A HAIR AND TRY TO TAKE THAT AT THE ROOT END OF

26 THE HAIR, AND THAT HAIR IS CONSUMED; THAT IS, PHYSICALLY GROUND

27 UP AND THEN CONSUMED DURING THE PROCESS.

28 Q. BEFORE YOU CONSUMED THE HAIRS DID YOU IN ANY WAY
5875
1 MEMORIALIZE THE CONDITION OF THE HAIRS?

2 A. I DO NOT DO THAT. THAT IS NOT THE ROLE OF THE

3 MITOCHONDRIAL D. N. A. UNIT. HOWEVER, THE TRACE EVIDENCE UNIT

4 DOES PRESERVE THEM WITH PHOTOGRAPHIC — PRESERVE THEIR

5 APPEARANCE WITH PHOTOGRAPHS.

6 Q. SO YOU GOT THE PHOTOGRAPHS WITH YOU, MA’AM?

7 A. NO. AGAIN, THAT IS PART OF THE TRACE EXAMINER’S

8 CASE FILE.

9 Q. SO YOU CAN’T TELL US WHETHER OR NOT — WELL, FOR

10 INSTANCE, YOU CAN’T TELL US WHAT THE LENGTH OF THE FILES WERE?

11 I’M SORRY, THE LENGTH OF THE HAIRS WERE?

12 A. I DO NOT HAVE THAT INFORMATION IN MY FILE, NO.

13 Q. YOU CAN’T TELL US WHETHER OR NOT THE HAIRS WERE

14 TAPERED?

15 A. NO, I CANNOT.

16 Q. DOES IT MATTER WHETHER A HAIR’S TAPERED?

17 A. CAN YOU BE MORE SPECIFIC, PLEASE? DOES IT MATTER

18 FOR WHAT PURPOSES?

19 Q. FOR INCLUSION OR EXCLUSION PURPOSES, IDENTIFICATION

20 PURPOSES?

21 A. THAT I DON’T KNOW. I’M NOT A HAIR EXAMINER.

22 Q. WHETHER OR NOT A HAIR’S BEEN CUT BY A BARBER, FOR

23 INSTANCE, THAT DOESN’T AFFECT YOUR PROFESSIONAL WORK; IS THAT

24 CORRECT?

25 A. AGAIN, THOSE — THOSE KINDS OF ITEMS ARE USED BY

26 HAIR EXAMINERS. THAT KIND OF INFORMATION IS USED BY HAIR

27 EXAMINERS AND I’M NOT A HAIR EXAMINER, SO I CAN’T TESTIFY TO —

28 TO THEIR USE OR HOW THEY’RE USED.
5876
1 Q. YOU SPECIFICALLY DISCUSSED A — I THINK A Q2 SERIES

2 OF DEBRIS FROM A VACUUM CLEANER.

3 DO YOU RECALL THAT?

4 A. I WAS PRESENTED A HAIR THAT WAS ISOLATED FROM

5 DEBRIS FROM A VACUUM CLEANER FROM THE MOTOR HOME, YES.

6 Q. WHAT COLOR WAS THAT HAIR?

7 A. IT WAS PRESENTED IN THE INCOMING LETTER FROM THE

8 SAN DIEGO POLICE DEPARTMENT AS BLONDE.

9 Q. AS BLONDE, IS THAT RIGHT?

10 A. THAT’S HOW IT CAME ACROSS IN THE LETTER. WE DO NOT

11 LOOK MICROSCOPICALLY AT THE HAIR IN THE MITOCHONDRIAL D. N. A.

12 UNIT.

13 Q. SO I THINK WHAT YOU JUST TOLD US WAS THAT FROM A

14 VACUUM CLEANER THE SAN DIEGO POLICE DEPARTMENT APPARENTLY

15 RETRIEVED A BLONDE HAIR OR A HAIR AND IT WAS TRANSMITTED TO THE

16 F. B. I.?

17 A. YES.

18 Q. AND REPRESENTED TO BE A BLONDE HAIR, CORRECT?

19 A. CORRECT.

20 Q. YOU THEN DID A MITOCHONDRIAL D. N. A. ANALYSIS OF

21 THAT HAIR, DIDN’T YOU?

22 A. AFTER OUR HAIR EXAMINER EXAMINED THAT HAIR, YES.

23 Q. WHO DID IT COME BACK TO?

24 A. AT WHAT POINT?

25 Q. WELL, WHEN YOU MITOCHONDRIAL D. N. A.‘D IT DID IT

26 COME BACK TO DANIELLE VAN DAM OR ANY OF HER RELATIVES?

27 A. Q2.1 DID NOT COME BACK TO DANIELLE VAN DAM.

28 Q. IT CAME BACK —
5877
1 A. DID NOT.

2 Q. SO YOU HAD THIS BLONDE HAIR AND YOU DID THE

3 MITROCHONDRIAL AND YOU CONCLUDED THAT IT DIDN’T INCLUDE ANY OF

4 THE KNOWNS THAT HAD BEEN PROVIDED TO YOU. IS THAT ANOTHER WAY

5 OF PUTTING WHAT YOU JUST SAID?

6 A. YES, IT IS. YES, IT IS.

7 Q. THEN THERE WAS ANOTHER HAIR, I THINK IT WAS 9.1 OR

8 9 — WELL, IT’S EITHER 9 OR 9.1. PLEASE LOOK AT YOUR NOTES,

9 WHATEVER YOU NEED, MA’AM, TO TRACK ME, PLEASE.

10 A. YES.

11 Q. AND I’M LOOKING AT YOUR — AT LEAST, SOME DOCUMENT

12 THAT BEARS THE F. B. I. LETTERHEAD 2/19, JUST SO WE’RE TRACKING

13 SIMILAR DOCUMENTS.

14 WITH REGARD TO Q9, THAT WAS ALSO REPRESENTED TO YOU

15 TO BE A BLONDE HAIR; IS THAT CORRECT?

16 A. YES, IT WAS.

17 Q. AND IT WAS RETRIEVED FROM — I’M SORRY, WHERE DID

18 YOU TELL US? THE DRIVER’S SEAT OR THE SEAT BELT?

19 A. MAY I REFER TO MY NOTES AGAIN?

20 Q. PLEASE.

21 A. IT WAS REPRESENTED AS COMING FROM THE REAR DRIVER’S

22 SEAT OF THE S. U. V., THIS IS Q9.1.

23 Q. THE REAR DRIVER’S SEAT OF THE S. U. V.; IS THAT

24 RIGHT?

25 A. YES.

26 Q. AND IT WAS A BLONDE HAIR, IS THAT RIGHT?

27 A. THAT’S HOW IT WAS PRESENTED TO ME, YES.

28 Q. AND YOU THEN DID A MITOCHONDRIAL D. N. A. ANALYSIS
5878
1 ON THAT HAIR, CORRECT?

2 A. YES, I DID.

3 Q. AND YOU CONCLUDED THAT IT CAME BACK TO DANIELLE L.;

4 IS THAT CORRECT?

5 A. I CONCLUDED THAT DANIELLE L. CANNOT BE EXCLUDED AS

6 THE SOURCE OF THAT Q9.1 HAIR.

7 Q. AND WITH REGARD TO THAT HAIR, YOU DID — I GUESS

8 YOU TOLD MR. CLARKE YOU HAVE SOME STATISTICS THAT YOU CAN REFER

9 TO. BASED UPON YOUR DATABASE, YOU LOOKED IN YOUR DATABASE AND

10 YOU CONCLUDED THAT IT APPEARS AS THOUGH THE SOURCE OR THE

11 GENETIC POPULATION THAT IT MOST ACCURATELY FIT WAS ASIAN, IS

12 THAT RIGHT?

13 A. NO, THAT IS NOT HOW IT’S STATED. THE PARTICULAR —

14 MY MITOCHONDRIAL D. N. A. TYPE THAT I OBTAINED FROM Q9.1 HAIR

15 AND THE KNOWN SAMPLE FROM DANIELLE L. DID SHOW UP 35 TIMES IN

16 THE DATA BASE AND WITHIN THAT DATA BASE SEARCH IT DID SHOW UP

17 WITHIN ASIAN POPULATION GROUPS.

18 Q. SO DOESN’T THE ASIAN POPULATION GROUP, THAT WOULD

19 INCLUDE INDIVIDUALS WITH DARK HAIR, IS THAT RIGHT?

20 A. I CAN ONLY ANSWER THAT NOT AS A HAIR EXAMINER, ONLY

21 AS PERSONAL OBSERVATION, YES.

22 MR. FELDMAN: IF I MIGHT JUST HAVE ONE MOMENT, PLEASE.

23 (PAUSE)

24

25 BY MR. FELDMAN:

26 Q. I’M SORRY, I JUST WANT TO CLARIFY BECAUSE YOU CAN

27 SEE WE’VE HAD REINFORCEMENTS, SO TO SPEAK.

28 THE HAIR THAT YOU — THE HAIR THAT WAS I THINK THE Q9
5879
1 HAIR, YOU CONCLUDED CAME — IF I SAY IT CORRECTLY, COULD HAVE

2 COME FROM A GENETIC DESCENDENT OF DANIELLE L., AM I SAYING THAT

3 MORE OR LESS ACCURATE?

4 A. IT COULD — IT COULD COME FROM DANIELLE L. OR A

5 MATERNAL RELATIVE OR SOMEBODY ELSE BY CHANCE, BUT I CANNOT

6 EXCLUDE DANIELLE L. AS BEING THE SOURCE OF THAT HAIR.

7 Q. AND THAT HAIR WAS REPRESENTED — AND I’M SORRY,

8 THEN YOU SAID YOU WENT TO YOUR DATABASE AND THE DATABASE SHOWED

9 35 REFERENCES, AND OF THE 35 REFERENCES THEY APPEARED TO BE ALL

10 ASIAN?

11 A. THAT’S CORRECT, YES.

12 Q. COULD YOU TELL THE LENGTH OF THAT PARTICULAR HAIR?

13 A. I DON’T HAVE THAT INFORMATION, NO. THAT WOULD BE

14 IN THE TRACE EXAMINER’S NOTES.

15 Q. AND YOU DIDN’T HAVE THE TRACE EXAMINER’S NOTES

16 BROUGHT WITH YOU?

17 A. NO. THEY WERE SUBMITTED.

18 Q. I’M SORRY, YOU SAY THEY WERE —

19 A. I DON’T — THE NOTES WERE PROVIDED. I DO NOT HAVE

20 THEM WITH ME.

21 Q. BECAUSE IS IT THE CASE THAT YOU WOULD NOT RELY UPON

22 NOR CONSIDER THEM, IS THAT WHY YOU DON’T HAVE THEM?

23 A. THAT’S CORRECT. I DO MY EXAMINATION INDEPENDENT OF

24 THE HAIR EXAM.

25 Q. SO THEY’RE NOT REALLY OF PARTICULAR CONSEQUENCE TO

26 YOUR EVALUATION, IS THAT A FAIR STATEMENT?

27 A. THAT’S A FAIR STATEMENT.

28 Q. SO IS IT THE CASE THAT, WITH REGARD TO EVERY HAIR
5880
1 THAT YOU EVALUATED AND FORMED AN OPINION, THAT YOU WERE ABLE TO

2 EITHER INCLUDE OR EXCLUDE A MITOCHONDRIAL OPINION STATEMENT, YOU

3 DID NOT MEASURE ANY OF THOSE HAIRS?

4 A. THAT IS CORRECT.

5 Q. NOR DO YOU HAVE WITH YOU IN YOUR POSSESSION

6 PHOTOGRAPHS OF THOSE HAIRS?

7 A. NO, I DON’T.

8 Q. IS IT YOUR PRESENT RECOLLECTION THAT PHOTOGRAPHS OF

9 THOSE HAIRS WERE SENT TO THE DISTRICT ATTORNEY’S OFFICE?

10 A. IT IS MY UNDERSTANDING THAT YES, THEY WERE.

11 Q. WHO SENT THEM?

12 A. OUR LEGAL COUNSEL DID.

13 Q. WHO WOULD THAT BE?

14 A. THE REPRESENTATIVE OF THEM IS NAMED RICHARD

15 NEIDEMEYER.

16 Q. BY THE WAY, ARE YOU THE PERSON THAT ACTUALLY DOES

17 THE HANDS-ON LAB TESTING AND DID THE HANDS-ON?

18 A. NO. NO, I’M NOT.

19 Q. OH, SO YOU DIDN’T EVEN DO THE TESTING ABOUT WHICH

20 YOU REPORTED THE RESULTS?

21 A. I DID SOME OF THE TESTING. I WORKED AS A TEAM WITH

22 A BIOLOGIST AND MY TEAM MATE, MY TEAM MEMBER PROVIDES OR DOES

23 THE LABORATORY HANDS-ON WORK, THE D. N. A. EXTRACTION AND THE

24 OTHER LABORATORY STEPS INVOLVED. SHE THEN TERMINATES HER PART

25 OF THE WORK, I GET ALL THE RAW DATA, ACTUALLY ANALYZE AND

26 DETERMINE WHAT THE MITOCHONDRIAL D. N. A. TYPE IS. THEY CALL

27 THE COMPARISONS AND WRITE THE REPORT OF THE RESULTS.

28 Q. I WANT TO BREAK THAT DOWN A LITTLE BIT. THERE’S A
5881
1 TECHNICIAN THAT TAKES THE HAIR AND DOES SOME TESTING ON IT; IS

2 THAT CORRECT?

3 A. SHE DOES LABORATORY PROCEDURES ON THAT HAIR, YES.

4 Q. WHAT LABORATORY PROCEDURES?

5 A. SHE DOES THE D. N. A. EXTRACTION AND THE STEPS THAT

6 FOLLOW THAT WHICH WE MENTIONED — WHICH I TESTIFIED BEFORE, WAS

7 THE P. C. R. STEP AND THEN THE D. N. A. SEQUENCING STEP, WHERE

8 WE DETERMINE THE BUILDING BLOCKS OF THE D. N. A.. THAT IS THEN

9 STORED AS COMPUTER DATA, AND I RECEIVED THAT COMPUTER DATA IN A

10 RAW FORM AND THEN ANALYZE THAT DATA.

11 Q. IS THERE A COMPUTER SCAN OF THE HAIR THAT YOU LOOK

12 AT BEFORE YOU START YOUR WORK?

13 A. A COMPUTER SCAN OF THE HAIR ITSELF?

14 Q. YES, MA’AM?

15 A. NO, THERE’S NOT.

16 Q. SO IT IS THE CASE THAT YOU RELY UPON THE WORK OF

17 SOMEONE OTHER THAN YOURSELF THAT SOMEHOW GETS COMPUTERIZED AND

18 THEN IT GETS SENT TO YOU, IS THAT RIGHT?

19 A. THE MITOCHONDRIAL SEQUENCING DATA IS GENERATED BY

20 MY BIOLOGIST.

21 Q. NOT BY YOU?

22 MR. CLARKE: EXCUSE ME. COULD THE WITNESS FINISH HER

23 ANSWER, PLEASE?

24 THE COURT: YES.

25 COMPLETE YOUR ANSWER, DOCTOR.

26 THE WITNESS: NOT BY ME. I THEN TAKE THE RAW DATA AND

27 ANALYZE IT TO DETERMINE A MITOCHONDRIAL D. N. A. TYPE.

28 ///
5882
1 BY MR. FELDMAN:

2 Q. SO YOU THEN HAVE TO RELY UPON SOMEBODY ELSE TO GET

3 IT RIGHT, CORRECT?

4 A. IT IS A TEAM EFFORT AND YES, WE DO HAVE TO RELY ON

5 EACH OTHER TO GET IT RIGHT.

6 Q. BUT YOU’RE NOT PRESENT WHEN THE LAB TECH IS

7 PERFORMING HIS OR HER WORK, ARE YOU?

8 A. NO, I’M NOT.

9 Q. YOU THEN TAKE THE DATA AND DO WHATEVER CALCULATIONS

10 OR WORK THAT YOU NEED TO DO IN ORDER TO ARRIVE AT THE ULTIMATE

11 CONCLUSIONS THAT YOU OFFER TO THE JURY TODAY, IS THAT RIGHT?

12 A. THAT’S RIGHT.

13 Q. WHAT WAS THE NAME OF THE EVIDENCE — THE TECHNICIAN

14 THAT PERFORMED THE WORK IN THIS CASE?

15 A. HER NAME IS HOLLY BRATCHER.

16 Q. BRATCHER?

17 A. YES.

18 Q. DO YOU HAVE HER PROFICIENCY TEST DATA WITH YOU?

19 A. NO, I DO NOT.

20 Q. DO YOU MAKE — JUST WITH REGARD TO THE PROCESS OF

21 WHAT HAPPENED IN THIS CASE, IS IT THE CASE THAT, AT LEAST WITH

22 REGARD TO THE Q10 SAMPLES AND THE Q10 EXEMPLARS, AN INADEQUATE

23 SAMPLE WAS PROVIDED BY THE SAN DIEGO POLICE DEPARTMENT TO

24 ANOTHER MEMBER OF YOUR TEAM?

25 A. I CAN’T SAY WHETHER AN INADEQUATE SAMPLE WAS

26 PROVIDED OR THE NATURE OF THE SAMPLE ITSELF AS BEING A HAIR IN A

27 HAIR BRUSH. I CAN’T SAY WHICH OF THOSE MADE IT NOT SUITABLE FOR

28 COMPARISON PURPOSES.
5883
1 Q. IN OTHER WORDS, THAT WAS — THAN AND THE Q10 SAMPLE

2 AGAIN, I’M NOT TRYING TO BE REDUNDANT AGAIN, I’M SORRY, THAT WAS

3 THE SAMPLE THAT WAS PROVIDED THAT PRECLUDED MEANINGFUL

4 MICROSCOPIC COMPARISON?

5 A. YES.

6 Q. OF THE — I THINK YOU INDICATED, OR IT WAS

7 INDICATED ON DIRECT EXAMINATION, THAT A TOTAL OF FOUR HAIRS

8 PROVIDED FROM THE SAN DIEGO POLICE DEPARTMENT WERE FORWARDED ON

9 TO THE MITOCHONDRIAL D. N. A. UNIT FOR ANALYSIS, IS THAT RIGHT?

10 A. YES. THAT’S RIGHT.

11 Q. SO YOUR UNIT — YOU OR YOUR UNIT TESTED A TOTAL OF

12 FOUR HAIRS?

13 A. FOR THE ITEMS OF EVIDENCE THAT WE RECEIVED ON

14 FEBRUARY 14TH, YES.

15 Q. DO YOU KNOW WHETHER OR NOT THE PROVIDER OF THE

16 HAIRS TO THE F. B. I. WAS A CRIMINALIST NAMED TANYA DULANEY?

17 A. ONE OF THE LETTERS I RECEIVED WAS FROM HER. I

18 DON’T KNOW WHETHER IT WAS HER WHO PROVIDED THAT PARTICULAR

19 SAMPLE.

20 Q. AND DID THAT LETTER THAT YOU RECEIVED FROM TANYA

21 DULANEY SPECIFICALLY INDICATE WHAT SHE WAS REQUESTING YOU TO DO?

22 A. LET ME REFER TO MY NOTES, PLEASE.

23 Q. PLEASE.

24 A. THE LETTER I HAVE IS ACTUALLY SIGNED BY THE

25 SUPERVISOR OF THE LAB. IT REFERS TO HER AND ASKS ME TO — THIS

26 LETTER IS THE ONE THAT WAS ACCOMPANYING THE SAMPLE FROM DANIELLE

27 L. AND ASKED TO PROVIDE A COMPARISON.

28 Q. AND CAN YOU PLEASE TELL US THE DATE?
5884
1 A. THE DATE OF THAT LETTER IS APRIL 26TH, 2002.

2 Q. AND ON YOUR LETTER, ANYWAY, THERE’S A KIND OF A

3 PINK — IT SAYS “SPECIAL” ON IT AND IT’S IN PINK. WHAT DOES

4 THAT MEAN?

5 A. UNDERNEATH WHERE IT SAYS “SPECIAL” IT SAYS “MID MAY

6 TRIAL.” THAT MEANS THAT IT IS — THIS CASE OR THIS LETTER IS

7 REFERRING TO A TRIAL THAT IS UPCOMING, SO WE NEED TO PRIORITIZE

8 THAT WORK ABOVE OTHER WORK THAT WE HAVE IN THE LABORATORY.

9 MR. FELDMAN: EXCUSE ME, YOUR HONOR, I’M SORRY.

10 Q. IN SUMMARY, WITH REGARD TO THE HAIRS THAT WERE

11 REPRESENTED TO COME FROM THE S. U. V., YOU EXCLUDED DANIELLE VAN

12 DAM?

13 A. YES.

14 Q. BRENDA VAN DAM?

15 A. YES.

16 Q. ANY OF THE GENETICS OF THE VAN DAM FAMILY?

17 A. ANY MATERNALLY RELATED INDIVIDUALS, YES.

18 Q. BUT YOU INCLUDED THE GENETIC DESCENDENTS — OR THE

19 GENETICS ARTICULATE, AND I KNOW I’M NOT GIVING IT BACK TO YOU

20 PRECISELY ACCURATELY, BUT YOU INCLUDED THE FEMALE RELATIVES OF

21 DANIELLE L., THE MATERNAL?

22 A. THE MATERNAL RELATIVES OF DANIELLE L., YES.

23 Q. DO YOU KNOW WHETHER ANY BLEACH WAS USED IN THIS

24 CASE?

25 A. BLEACH AT WHAT POINT?

26 Q. MR. CLARKE WAS ASKING YOU QUESTIONS ABOUT WHAT

27 EFFECT BLEACH HAD ON D. N. A. I’M JUST WONDERING DO YOU HAVE

28 ANY INDICATION THAT — DO YOU HAVE ANY PERSONAL KNOWLEDGE?
5885
1 A. WE USE BLEACH, AS I TESTIFIED BEFORE, TO CLEAN OUR

2 WORK AREAS.

3 Q. BUT YOU DIDN’T BLEACH ANY OF THE HAIRS, DID YOU?

4 A. NO.

5 Q. AND YOU COULD TELL, CAN’T YOU, IF A HAIR HAS HAD

6 SOME COLOR ADDED TO IT, I DON’T KNOW, BLEACH OR WHATEVER, IF I

7 DO SOMETHING TO CHANGE THE COLOR OF MY HAIR, AND I GIVE YOU A

8 HAIR OF MINE AND YOU DO A MITOCHONDRIAL ANALYSIS, OR ONE OF YOUR

9 AGENTS LOOKS AT IT, CAN YOU TELL THAT I’VE ADDED COLOR?

10 A. NOT FROM THE MITOCHONDRIAL D. N. A. EXAMINATION, NO

11 Q. HOW ABOUT FROM THE MICROSCOPIC?

12 A. HAIR EXAMINERS CAN, I BELIEVE, TELL WHETHER THERE

13 HAS BEEN COLOR TREATMENT TO A HAIR.

14 Q. AND THE REASON YOU BELIEVE THAT IS BECAUSE YOU’VE

15 BEEN PROVIDED INFORMATION FROM YOUR EXAMINERS WHEN YOU’VE DONE

16 MITOCHONDRIAL DNA TESTING AS TO WHETHER OR NOT A COLOR’S BEEN

17 ADDED TO THE HAIR, IS THAT RIGHT?

18 A. I ACTUALLY OBTAINED THAT INFORMATION FROM A COURSE

19 I TOOK TO UNDERSTAND A LITTLE BIT ABOUT HAIR ANALYSIS. I KNOW

20 THE TRACE EXAMINERS INCLUDE THAT INFORMATION IN THEIR NOTES,

21 WHICH I TYPICALLY DO NOT SEE. I DON’T KNOW IF THAT IS

22 CONSISTENTLY PRESENT IN THEIR REPORTS OR NOT.

23 Q. BUT YOU KNOW IT’S THE CASE, RIGHT? IT’S PART OF

24 YOUR TRAINING?

25 A. YES.

26 MR. FELDMAN: NO FURTHER QUESTIONS.

27 THE COURT: ANYTHING FURTHER, MR. CLARKE?

28 MR. CLARKE: YES THANK YOU, YOUR HONOR.
5886
1 REDIRECT EXAMINATION +

2 BY MR. CLARKE:

3 Q. DOCTOR THEISEN, IN THE PEOPLE YOU INCLUDED, YOU

4 INCLUDED DANIELLE VAN DAM AS THE POTENTIAL CONTRIBUTOR IN THE

5 BATHROOM IN THE MOTOR HOME; IS THAT CORRECT?

6 MR. FELDMAN: SCOPE.

7 THE COURT: OVERRULED.

8 THE WITNESS: YES, I DID.

9

10 BY MR. CLARKE:

11 Q. IS THERE A LARGE DEMAND FOR THE SERVICES OF THE

12 MITOCHONDRIAL DNA TESTING UNIT AT THE F. B. I.?

13 A. YES, THERE IS.

14 Q. IS THAT BECAUSE OF THE POWER OF THIS TECHNIQUE TO

15 BE USED ON EVIDENCE ITEMS SUCH AS HAIR?

16 A. YES, IT IS.

17 Q. AS FAR AS EXCLUDING A PERSON AS A POTENTIAL DONOR

18 OF A HAIR BASED ON CHEMICAL TREATMENT, IS THAT SOMETHING DONE BY

19 A HAIR EXAMINER AS OPPOSED TO A MITOCHONDRIAL D. N. A. TESTING

20 EXPERT SUCH AS YOURSELF.

21 A. YES, IT IS.

22 Q. DO YOU KNOW OR NOT IF MEASUREMENTS OF THE HAIRS

23 THAT WERE SENT TO YOU AND OTHER LABORATORIES WERE ACTUALLY DONE

24 BY THE SAN DIEGO POLICE DEPARTMENT PRIOR TO SENDING THEM?

25 A. I DO NOT KNOW THAT.

26 Q. AS FAR AS WORK BEING DONE BY OTHERS IN THE LAB, AND

27 I BELIEVE YOU DESCRIBED THE FACT THAT YOU WORK WITH OR WORKED IN

28 THIS CASE WITH ANOTHER INDIVIDUAL NAMED BRATCHER; IS THAT IT?
5887
1 A. YES, IT IS.

2 Q. IS THAT COMMON IN SCIENTIFIC TESTING?

3 A. YES, IT IS.

4 Q. IS THAT COMMON IN SCIENTIFIC RESEARCH THAT HAS

5 NOTHING TO DO WITH CRIMINAL CASES?

6 A. IT IS ROUTINE, YES.

7 Q. DOES THAT GO ON IN THE HOSPITAL WHEN INDIVIDUALS

8 ARE DIAGNOSED AS HAVING OR NOT HAVING GENETIC DISEASES?

9 A. YES, IT DOES.

10 Q. IN THIS PARTICULAR CASE, DO YOU — OR FOR ANY CASE,

11 DO YOU ACTUALLY REVIEW ALL OF THE DATA IN THE CASE AND THE

12 RESULT BEFORE COMING TO COURT TO TESTIFY?

13 A. YES, I DO. AND ADDITIONALLY, I REVIEW THE DATA AS

14 IT’S GENERATED VERY SOON AFTER IT’S GENERATED, SO AS WE PROGRESS

15 THROUGH THE CASE I’M REVIEWING IT EVERY STEP ALONG THE WAY.

16 Q. BECAUSE OF THE POWER OF MITOCHONDRIAL D. N. A.

17 TESTING IS IT THE CASE THAT IF THERE’S ANY QUESTION ABOUT THE

18 RELIABILITY OF RESULTS THEY CAN BE RETESTED AS LONG AS THERE’S

19 ADDITIONAL HAIR LEFT OVER.

20 MR. FELDMAN: OBJECTION, YOUR HONOR, ASSUMES FACTS NOT IN

21 EVIDENCE AND IS ARGUMENTATIVE, POWER.

22 THE COURT: OVERRULED.

23 YOU MAY ANSWER.

24 THE WITNESS: YES.

25

26 BY MR. CLARKE:

27 Q. AS FAR AS RECEIVING SAMPLES FOR COMPARISON, AND I’M

28 GOING BACKWARDS TO THE COMPARISON ASPECT CONDUCTED BY THE BUREAU
5888
1 BEFORE THE MITOCHONDRIAL D. N. A. TESTING, I BELIEVE THERE WAS

2 REFERENCE TO SAMPLES BEING MEANINGFUL TO COMPARE.

3 DO YOU RECALL THAT?

4 A. YES. I RECALL THAT REFERENCE.

5 Q. WHEN WAS THAT TESTING DONE, TO YOUR KNOWLEDGE? CAN

6 YOU GIVE US AN APPROXIMATE TIME PERIOD?

7 A. THE ITEMS THAT WERE RECEIVED FEBRUARY 14TH WERE

8 COMPARED BY THE HAIR EXAMINER THAT DAY.

9 Q. IS IT HARDER TO MAKE A COMPARISON WHEN A BODY’S

10 MISSING FROM WHICH ONE WANTS TO COMPARE THE HAIRS?

11 A. YES, IT IS.

12 Q. WHAT’S THE BEST REFERENCE SAMPLE FOR SOMEONE’S

13 HAIRS?

14 A. THE BEST REFERENCE SAMPLE ARE HAIRS THAT ARE TAKEN

15 FROM THAT INDIVIDUAL.

16 Q. THAT CAN’T BE DONE WHEN THE BODY HASN’T EVEN BEEN

17 FOUND YET, CAN IT?

18 A. THAT CANNOT BE DONE, NO.

19 MR. CLARKE: THANK YOU.

20 NO FURTHER QUESTIONS.

21 THE COURT: ANYTHING FURTHER, MR. FELDMAN?

22 MR. FELDMAN: YES.

23

24 RECROSS-EXAMINATION +

25 BY MR. FELDMAN:

26 Q. YOU TOLD US THAT THERE’S A BIG DEMAND ON THE F. B.

27 I. AND IT’S IMPORTANT THAT YOU UTILIZE YOUR RESOURCES, THAT’S

28 CORRECT, ISN’T IT?
5889
1 A. WE DO HAVE A BIG DEMAND FOR MITOCHONDRIAL D. N. A.

2 TESTING, YES.

3 Q. AND THERE’S A BIG DEMAND FOR THE F. B. I. TO

4 DELIVER AS MUCH RESOURCES FOR THEIR SERVICES?

5 A. YES.

6 Q. THAT’S BECAUSE AGENCIES FROM ALL OVER THE UNITED

7 STATES COME TO YOU, RIGHT?

8 A. YES. WE DO SERVE THE UNITED STATES AS WELL AS

9 OTHER COUNTRIES.

10 Q. AND YOU’RE VERY CAREFUL TO PART YOUR RESOURCES OUT

11 IN A VERY CAREFUL WAY; ISN’T THAT TRUE?

12 A. YES.

13 Q. FOR EXAMPLE, YOU DON’T WANT TO DOUBLE TEAM

14 SOMETHING ON SOMETHING THAT DOESN’T NEED DOUBLE TEAMING. DO YOU

15 UNDERSTAND?

16 A. NOT EXACTLY, NO.

17 Q. YOU DON’T WANT TO ADD MORE RESOURCES THAN IS

18 NECESSARY IF YOU HAVE THAT LUXURY?

19 A. AGAIN, WE MANAGE THE RESOURCES AS BEST WE CAN.

20 Q. AND FOR INSTANCE — DO YOU HAVE ASSISTANCE IN THE

21 COURTROOM TODAY, FOR INSTANCE, IN TESTIFYING?

22 A. NO, I DON’T.

23 Q. THE GENTLEMAN IN THE BACK OF THE COURTROOM, DO YOU

24 KNOW HIM?

25 A. YES, I DO.

26 Q. WHO IS THAT MAN?

27 A. THAT IS DR. BRUCE BUDOWLE ONE OF MY COLLEAGUES IN

28 THE LABORATORY.
5890
1 Q. WHAT LABORATORY?

2 A. THE F. B. I. LABORATORY.

3 Q. IS HE TESTIFYING IN THIS CASE?

4 A. NO, HE’S NOT.

5 Q. DO YOU CHARGE THE DISTRICT ATTORNEY’S OFFICE A FEE?

6 A. NO, WE DO NOT.

7 Q. IF I WANTED TO USE YOUR SERVICES WOULD YOU LET ME?

8 A. THE — AS DIRECTED BY CONGRESS, THE F. B. I.

9 LABORATORY SERVES ANY DULY CONSTITUTED LAW ENFORCEMENT AGENCY.

10 SO IF YOU WERE TO GO THROUGH A LAW ENFORCEMENT AGENCY, YES, WE

11 WOULD.

12 Q. BUT IF I’M NOT A DULY CONSTITUTED LAW ENFORCEMENT

13 AGENCY, I’M JUST A UNITED STATES CITIZEN, YOU CAN’T HELP?

14 A. WE DO NOT PERFORM WORK IN THAT SITUATION, NO.

15 MR. FELDMAN: NO FURTHER QUESTIONS.

16 THE COURT: ANYTHING FURTHER?

17 MR. CLARKE: NO. THANK YOU, YOUR HONOR.

18 THE COURT: ALL RIGHT.

19 IS THE DOCTOR TO BE EXCUSED, COUNSEL?

20 MR. FELDMAN: NO OBJECTION.

21 MR. CLARKE: YES.

22 THE COURT: THANK YOU, MA’AM, VERY MUCH FOR COMING IN.

23 YOU’RE FREE TO LEAVE THESE PROCEEDINGS. PLEASE DO NOT DISCUSS

24 YOUR TESTIMONY WITH ANYONE UNTIL THE CASE IS CONCLUDED. ALL

25 RIGHT. THANK YOU.

26 OKAY. LADIES AND GENTLEMEN, HAVE YOU HAD ENOUGH

27 BIOLOGY AND GENETICS TODAY? THE D. A. DID THE BEST THEY COULD

28 IN ESTIMATING HOW LONG IT WOULD TAKE FOR THESE EXPERTS TO BE IN
5891
1 AND OUT, AND AS IT TURNS OUT THEY WERE VERY EFFICIENT AND I’M

2 GOING TO HAVE TO SEND YOU HOME AN HOUR EARLY. I HOPE YOU DON’T

3 MIND. I SEE YOU’RE ALL VERY DISAPPOINTED.

4 OKAY. NOW, REMEMBER TOMORROW WE’RE DARK ON THIS

5 PARTICULAR MATTER. MONDAY WE’LL BE ABLE TO START AT OUR NORMAL

6 TIME AT 9 O’CLOCK. WE SHOULD BE ABLE TO PUT IN A FULL DAY.

7 PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO

8 DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR

9 WITH ANY PERSONS, NOR FORM OR EXPRESS ANY OPINIONS ON THE CASE

10 UNTIL IT IS SUBMITTED TO YOU FOR DECISION.

11 GREAT BASEBALL WEEKEND COMING UP. IF YOU DON’T

12 HAVE ANYTHING ELSE TO DO, I RECOMMEND IT VERY HIGHLY ‘CAUSE WE

13 MAY NOT SEE THESE TEAMS FOR QUITE SOME TIME.

14 HAVE A PLEASANT THREE DAYS OFF. WE’LL SEE YOU AT 9

15 O’CLOCK ON MONDAY MORNING.

16 (AT 3:35 P.M. THE JURY WAS EXCUSED
AND THE FOLLOWING PROCEEDINGS WERE HAD:)
17

18 THE COURT: OKAY. IT APPEARS THAT THE JURORS AND

19 ALTERNATES LEFT THE COURTROOM.

20 MR. DUSEK, WHILE WE’RE STILL ON THE RECORD,

21 APPARENTLY YOU’VE PRESENTED MY CLERK WITH A VIDEO DISK THAT

22 INCORPORATES THE ORAL TESTIMONY OF DR. WERTHEIM; IS THAT

23 CORRECT?

24 MR. DUSEK: IT WAS THE PICTORIAL TESTIMONY THAT WE WERE

25 PLAYING IN COURT YESTERDAY, AND THAT IS CORRECT.

26 THE COURT: I THINK I’LL MARK THAT AS A SUB-PART OF THE

27 BOARD WHICH WAS THE MEMORIALIZATION OF HIS TESTIMONY. SO THAT

28 WILL BE 116A AS IN ALPHA FOR PURPOSES OF PLACEMENT IN THE
5892
1 RECORD.

2 OKAY. ANYTHING ELSE THAT WE CAN OR NEED TO COVER

3 BEFORE WE RECESS?

4 MR. FELDMAN: JUST ONE SECOND.

5 (PAUSE)

6 MR. FELDMAN: THANK YOU. NO, YOUR HONOR.

7 THE COURT: OKAY. ALL RIGHT, THEN. FIVE OR 10 MINUTES

8 TILL 9:00 MONDAY MORNING.

9 MR. FELDMAN: THANK YOU, YOUR HONOR.

10 MR. CLARKE: JUST WONDERING BEFORE THE COURT DOES RECESS

11 I’M TRYING TO RECALL HOW WE LEFT THE ONE WITNESS THAT WE SPOKE

12 ABOUT EARLIER THIS AFTERNOON.

13 THE COURT: THE WAY I INTEND TO HANDLE IT IS THIS. I

14 NEED A REPORT FROM THE DEFENSE FIRST THING MONDAY MORNING AS TO

15 WHETHER OR NOT THEY’LL BE PREPARED TO CROSS-EXAMINE ON THE

16 ISSUES WE DISCUSSED. IF THEY ARE, IT WILL BE MY INTENT TO ALLOW

17 YOU TO PRESENT YOUR WITNESS ON TUESDAY AFTERNOON, AND IF YOU CAN

18 ANTICIPATE HOW MUCH TIME, I’LL LET THE JURY GO AS FAR AS I CAN

19 AND THEN THE VERY END OF THE DAY CONDUCT THE EXAMINATION.

20 MR. CLARKE: ALL RIGHT. I JUST DON’T WANT TO SQUEEZE

21 OURSELVES FOR TIME BECAUSE THAT’S THE LAST AVAILABLE TIME PERIOD

22 OF THAT WITNESS TILL THE FOLLOWING WEEK.

23 THE COURT: WELL, IF I’M ADVISED THAT THEY’LL BE

24 AVAILABLE TO CROSS-EXAMINE THE WITNESS, THEN WHAT I’LL DO IS

25 WE’LL MAKE A CALL, AND I’LL EITHER SEND THE JURY HOME EARLY,

26 LIKE AT 2 O’CLOCK, AND THEN THAT GIVES US TWO AND A HALF HOURS,

27 OR WHATEVER YOUR BEST ESTIMATE IS OF HOW LONG THAT WITNESS IS

28 GOING TO TAKE.
5893
1 MR. CLARKE: FINE.

2 THE COURT: ALL RIGHT. WE’LL BE IN RECESS UNTIL MONDAY

3 MORNING.

4 (AT 3:37 P.M. AN ADJOURNMENT WAS TAKEN
UNTIL 9:00 A.M. MONDAY, JUNE 24, 2002.)
5
–O0O–
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

44 - Day 12- June 24th 2002 - Transcript criminal trial David Westerfield
42 - Day 11- June 20th 2002 - Transcript criminal trial David Westerfield