TRIAL DAY 14 – PART 2 – morning 2
SAN DIEGO, CALIFORNIA, WEDNESDAY, JUNE 26, 2002, (morning 2)
WITNESSES:
James M. Watkins (Computer forensic examiner, testified about Westerfield’s hard drive, computer related items and content found on those items: images, videos etc.- Examination and cross-exam continued)
Mitchell Holland (Bode Technology group forensic D. N. A. Laboratory, testified about S. T. R. D. N. A. and mitochondrial D. N. A.)
1 THE COURT: IN THE WESTERFIELD MATTER, THE RECORD WILL
2 REFLECT THE APPEARANCE OF COUNSEL, MR. WESTERFIELD. JURORS AND
3 ALTERNATES ARE OUTSIDE THE COURTROOM.
4 YES.
5 MR. FELDMAN: THIS RELATES TO EVIDENTIARY MATTERS, YOUR
6 HONOR. THAT’S WHY I REQUESTED SIDEBAR.
7 THE COURT: ALL RIGHT. COME TO SIDEBAR.
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19 (THE FOLLOWING PROCEEDINGS WERE HELD IN
OPEN COURT IN THE PRESENCE OF THE JURY:)
20
21 THE COURT: OKAY. WELCOME BACK, LADIES AND GENTLEMEN.
22 ALL RIGHT. MR. FELDMAN.
23
24 BY MR. FELDMAN:
25 Q. WITH REGARD TO THE EXHIBIT THAT WAS SHOWN TO THE
26 JURY YESTERDAY YOU TOLD US THERE WAS A NUMBER OF FILES, AND I
27 THINK WE’VE DECIDED THERE WAS AROUND 17 TOTAL FILES THAT YOU
28 SHOWED.
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1 CAN YOU TELL US THE DATES OF DOWNLOAD OF EACH OF
2 THOSE FILES, PLEASE?
3 A. DOWNLOAD AS FAR AS — WHEN YOU SAY DOWNLOAD, SIR,
4 DO YOU MEAN DOWNLOADED FROM A SOURCE OR —
5 Q. WELL, ONE CAN GO TO LIKE THE F STREET BOOKSTORE AND
6 BUY PORNOGRAPHIC C. D.S, IS THAT RIGHT?
7 A. YES, SIR.
8 Q. I JUST USED A TERM THAT I HEARD YOU USE ON DIRECT,
9 “PORNOGRAPHY.” WHAT DOES THAT MEAN TO YOU, SIR?
10 A. PORNOGRAPHY?
11 Q. YES.
12 A. BASICALLY A DEPICTION OF SEXUAL ACT BETWEEN — A
13 SEXUAL ACT.
14 Q. OKAY. SO THAT WE’RE COMMUNICATING, WHEN YOU USE
15 THE TERM “PORNOGRAPHY” YOU REFER TO THE DEPICTION OF ANY SEXUAL
16 ACT, CONSENSUAL ADULTS INCLUDED?
17 A. YES, SIR.
18 Q. ALL RIGHT.
19 ONE CAN GO TO THE F STREET BOOKSTORE AND BUY C.
20 D.S, OR THE KIND OF F STREET OR WHATEVER IN OUR CITY, AND BUY C.
21 D.S THAT DEPICT SIMILAR AS WHAT WE SAW YESTERDAY; IS THAT
22 CORRECT?
23 A. YES, SIR.
24 Q. ONE CAN GO ON THE INTERNET AND GET ‘EM, CORRECT?
25 A. YES, SIR.
26 Q. GOING ON THE INTERNET AND GETTING THEM WOULD
27 CONSTITUTE A DOWNLOAD, WOULDN’T IT?
28 A. YES, SIR.
6438
1 Q. SO I ASKED YOU JUST A MOMENT AGO WITH REGARD TO THE
2 DATES OF DOWNLOAD, CAN YOU TELL ME, WITH REGARD TO THE 17 OR SO
3 FILES THAT WE SAW YESTERDAY, WHAT THE DATES OF DOWNLOAD WERE?
4 A. NO, SIR. I CAN’T DETERMINE THAT.
5 Q. YOU TOLD US THAT WITH REGARD TO ZIP DISKS YOU WERE
6 ABLE TO TELL DATE OF LAST ACCESS, IS THAT RIGHT?
7 A. YES, SIR. THAT IS CORRECT.
8 Q. CAN YOU TELL ME WHAT WAS THE DATE OF THE LAST
9 ACCESS ON THOSE FILES THAT CAME FROM THE ZIP DISKS?
10 A. YES, I CAN. I’LL REFER TO MY NOTES.
11 Q. PLEASE.
12 A. ON THE ZIP DISKS THE LAST ACCESS FOR —
13 Q. WHAT PAGE ARE YOU LOOKING AT, THOUGH, PLEASE?
14 A. OH, HERE.
15 Q. THANK YOU. I JUST WANT TO LOOK OVER YOUR SHOULDER.
16 A. YOU CAN HAVE THE COPY IF YOU’D LIKE.
17 Q. OH, THANK YOU.
18 A. ON THE ZIP DISKS FROM 16333, ALL BUT TWO OF THEM
19 HAD THE LAST ACCESS DATE OF 6/5 OF 2000. TWO HAD THE LAST
20 ACCESS DATE OF 3/11/2001.
21 Q. OKAY. THAT’S AS TO THE ZIP DISK 16333, IS THAT
22 RIGHT?
23 A. YES, SIR.
24 Q. THEN THERE WAS A ZIP DISK 16332; IS THAT CORRECT?
25 A. YES, SIR, IT IS.
26 Q. AND YOU HAVE CATEGORIES IN THE PIECE OF PAPER YOU
27 GAVE ME THAT INDICATE THE FILE NAME; IS THAT CORRECT?
28 A. YES, SIR.
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1 Q. THE LAST ACCESSED/LAST WRITTEN IS THE NEXT COLUMN,
2 IS THAT RIGHT, SIR?
3 A. YES.
4 Q. THEN IT SAYS FILE CREATED, IS THAT RIGHT?
5 A. YES, SIR.
6 Q. AND THEN FULL PATH?
7 A. YES, SIR.
8 Q. THE FULL PATH REFERRING TO WHERE ONE COULD FIND IT
9 IN THE COMPUTER?
10 A. OR THE DISK, YES, SIR.
11 Q. WITH REGARD TO THE ZIP DISK 16332 —
12 A. UM-HMM, YES.
13 Q. — IT LOOKS LIKE THERE’S A SEPARATE COLUMN THAT
14 SAYS LAST ACCESS, AND A SEPARATE COLUMN THAT SAYS LAST WRITTEN.
15 AM I ACCURATE IN THAT?
16 A. YES, YOU ARE.
17 Q. YOU DON’T NOTE WITH REGARD TO 16332 THE DATE OF
18 LAST ACCESS?
19 A. THAT IS CORRECT.
20 Q. WHY NOT?
21 A. BECAUSE THERE WAS NO LAST ACCESS DATE ON THE MEDIA
22 OR ON THE ZIP DISK. IT WAS JUST THE FILE WRITTEN DATE.
23 Q. ALL RIGHT.
24 A. THE LAST WRITTEN DATE, EXCUSE ME.
25 Q. WHEN YOU SAY THE LAST WRITTEN DATE, THAT SEEMS TO
26 BE THE FILE DATE OF CREATION, DOESN’T IT?
27 A. YES, SIR.
28 Q. AND THAT LAST — THAT FINAL DATE OF CREATION, AT
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1 LEAST ON — LET ME SEE, WE’RE TALKING ABOUT FIVE SEPARATE FILES
2 ON THE ZIP DISK THAT’S 16332; IS THAT CORRECT?
3 A. YES, SIR. THAT IS CORRECT.
4 Q. YOU NOTE THAT ON FOUR OF THE FILES A DATE OF
5 CREATION, OR THE LAST WRITTEN DATE IS 4/21/99, IS THAT RIGHT?
6 A. YES, SIR. THAT IS CORRECT.
7 Q. AND YOU NOTE THAT THE LAST DATE IS 5/17/99, IS THAT
8 RIGHT?
9 A. YES, SIR.
10 Q. IN OTHER WORDS, IT DOESN’T APPEAR AS THOUGH, AT
11 LEAST AS TO THOSE ZIPS, THOSE FILES, THEY WERE EVER REVISITED?
12 A. THERE IS NO LAST ACCESS DATE, YES, SIR.
13 Q. SO THAT MEANS THAT THEY MIGHT HAVE BEEN DOWNLOADED
14 AND NOBODY EVER LOOKED AT THEM, IS THAT RIGHT?
15 A. THAT’S ONE POSSIBILITY, YES, SIR.
16 Q. IS THAT A REASONABLE POSSIBILITY?
17 A. IT’S A POSSIBILITY.
18 Q. IS IT A REASONABLE POSSIBILITY?
19 A. YES.
20 Q. WITH REGARD TO THE C. D. 16327, YOU NOTED THE
21 EXISTENCE OF TWO FILES, IS THAT RIGHT?
22 A. YES, SIR.
23 Q. THOSE TWO FILES, YOU CALLED THEM — THEY’RE GIFS,
24 G-I-F, ISN’T THAT RIGHT, SIR?
25 A. YES, SIR. THAT IS CORRECT.
26 Q. YOU DON’T SHOW A LAST ACCESS DATE, CORRECT?
27 A. THAT IS CORRECT.
28 Q. YOU DO SHOW A LAST WRITTEN DATE, IS THAT RIGHT?
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1 A. YES, SIR.
2 Q. THE LAST WRITTEN DATE IS 7/1/99?
3 A. YES, SIR.
4 Q. AND YOU SHOW A FILE CREATION DATE OF 7/1/99?
5 A. YES, SIR.
6 Q. AND BOTH THE LAST WRITTEN DATE AND TIME AND THE
7 FILE CREATION DATE AND TIME ARE THE SAME; ISN’T THAT CORRECT?
8 A. YES, SIR.
9 Q. IN YOUR C. D. — THERE’S ANOTHER C. D. 16327. THIS
10 REFLECTS AN AVI FILE, DOES IT NOT?
11 A. YES, SIR, IT DOES.
12 Q. SO THIS LIST YOU’VE GIVEN ME, IS THIS A LIST OF THE
13 EXHIBITS WE SAW IN THE COURTROOM?
14 A. YES, SIR, IT IS.
15 Q. WITH REGARD TO 16327, THAT WAS AN AVI, THAT WAS THE
16 SHORT VIDEO AS OPPOSED TO THE LONGER SEQUENCE OF VIDEOS; IS THAT
17 CORRECT?
18 A. I BELIEVE SO, YES, SIR.
19 Q. THAT WAS CREATED — I’M SORRY — WHEN?
20 A. ON THE 63 — I’M SORRY — 16327?
21 Q. YES, SIR.
22 A. THAT WOULD BE 8/27 OF ’99.
23 Q. AND IT WAS LAST WRITTEN 8/27/99; IS THAT CORRECT?
24 A. YES, SIR.
25 Q. AND YOU NOTED THAT IT WAS LAST WRITTEN AT 3:39 AND
26 54 SECONDS A.M.; IS THAT CORRECT?
27 A. YES, SIR.
28 Q. AND THEN IT SAYS THE FILE WAS CREATED AT 3:39 AND
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1 54 SECONDS A.M.; IS THAT CORRECT?
2 A. YES, SIR.
3 Q. SO DOES THAT MEAN IT WASN’T ACCESSED SINCE 8/27/99?
4 A. AS I — THAT’S FROM A C. D. THE LAST TWO ARE C.
5 D.S, AND C. D.S, ONCE YOU ACCESS THEM, THEY DON’T CHANGE THE
6 ACCESS TIME.
7 Q. SO YOU CANNOT RULE OUT THAT THAT FILE WAS ONLY
8 DOWNLOADED AND NEVER VIEWED?
9 A. THAT IS CORRECT.
10 Q. WITH REGARD TO C. D. 16326, THIS WAS THE SEQUENCE
11 OF MPEGS, RIGHT? THE VIDEOS THAT WERE LONGER, IS THAT RIGHT?
12 A. YES, SIR.
13 Q. THAT WE SAW YESTERDAY, IS THAT RIGHT?
14 A. YES, SIR.
15 Q. IT APPEARS AS THOUGH ONE OF THE MPEGS WAS CREATED
16 6/24/01; IS THAT CORRECT?
17 A. YES, SIR.
18 Q. AND I GUESS THE LONGER ONE WAS ACTUALLY FIVE
19 SEPARATE FILES THAT WERE KIND OF — I DON’T KNOW WHETHER THEY
20 WERE SPLICED TOGETHER BUT THEY WERE SHOWN, AND THEN WE HAD A
21 PAUSE BUT THEY WERE CONTINUOUS, IS THAT RIGHT?
22 A. YES, SIR.
23 Q. WITH REGARD TO THE NEXT FOUR OF THE FIVE, THEY WERE
24 APPARENTLY CREATED 8/5 — AUGUST 5TH OF ’01, IS THAT RIGHT?
25 A. YES, SIR.
26 Q. AND WITHIN A HALF AN HOUR OF EACH OTHER, IS THAT
27 RIGHT?
28 A. YES, SIR.
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1 Q. YOU CANNOT TELL WHEN THEY WERE LAST ACCESSED,
2 CORRECT?
3 A. NO, SIR, I CANNOT.
4 Q. SO THEREFORE, THEY COULD HAVE NEVER BEEN ACCESSED
5 SINCE AUGUST 5TH OF ’01?
6 A. YES, SIR.
7 Q. OR VIEWED?
8 A. YES, SIR.
9 Q. MR. WESTERFIELD HAD ON HIS COMPUTER, DID HE NOT,
10 AREAS WHERE HE KEPT PERSONAL FAMILY PHOTOS?
11 A. I BELIEVE YES, SIR, HE DID.
12 Q. IT’S NOT UNUSUAL, IS IT?
13 A. NO, SIR, IT IS NOT.
14 MR. FELDMAN: NO FURTHER QUESTIONS.
15 THE COURT: ALL RIGHT.
16 ANYTHING FURTHER, MR. CLARKE?
17 MR. CLARKE: YES. THANK YOU, YOUR HONOR.
18
19 REDIRECT EXAMINATION +
20 BY MR. CLARKE:
21 Q. MR. WATKINS, WITH REGARD TO THE C. D.S AND THE
22 MOVIES, WOULD IT BE SPECULATION FOR YOU TO INTERPRET THAT THEY
23 HAVE NOT BEEN ACCESSED SINCE THEY WERE CREATED?
24 A. YES.
25 Q. AND, IN FACT, THE C. D.S I THINK, AS YOU SAID
26 EARLIER, DON’T ALLOW YOU TO DETERMINE WHEN THEY WERE LAST
27 VIEWED; IS THAT CORRECT?
28 A. YES, SIR. THAT IS CORRECT.
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1 Q. IS THAT ALSO TRUE WITH REGARD TO THE ZIP DISKS IF
2 THEY’RE, IN FACT, — AND, I’M SORRY, WAS THE TERM “LOCKED” OR
3 “PROTECTED”?
4 A. YES, SIR.
5 Q. SO YOU CAN’T TELL WHEN THEY WERE LAST — I’M SORRY,
6 LAST ACCESSED IF THEY WERE IN THAT CONDITION?
7 A. THAT IS CORRECT.
8 Q. EXHIBIT 140, THAT ONE PAGE DOCUMENT THAT YOU
9 DESCRIBED COMING OFF OF ONE OF MR. WESTERFIELD’S COMPUTERS —
10 A. YES, SIR.
11 Q. — WHAT’S THAT TITLED AT THE TOP?
12 A. DIRECTIONS TO GLAMIS.
13 MR. BOYCE: OBJECTION, YOUR HONOR, BEYOND THE SCOPE.
14 THE COURT: OVERRULED.
15
16 BY MR. CLARKE:
17 Q. WHAT’S IT DESCRIBE?
18 A. IT DESCRIBES DIRECTIONS TO GLAMIS.
19 MR. FELDMAN: BEST EVIDENCE.
20 THE COURT: JURY WILL HAVE A CHANCE TO SEE IT.
21
22 BY MR. CLARKE:
23 Q. DESCRIBES HOW TO GET TO GLAMIS?
24 A. YES, SIR.
25 Q. IS THERE A NAME AT THE BOTTOM AS THE PERSON WHO’S
26 PURPORTED TO HAVE WRITTEN THAT?
27 A. YES, SIR. THERE IS A NAME.
28 Q. WHAT’S THE NAME?
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1 A. THE NAME IS DAVID.
2 Q. WHAT ARE THE DIRECTIONS?
3 A. IT’S “STEP ONE: GET GAS AND OIL.
4 “STEP TWO: PACK TRUCK WITH AS SHORT A SKIRT AS
5 POSSIBLE AND DON’T FORGET YOUR BIKINI.
6 STEP THREE: WEAR SUNGLASSES.
7 STEP FOUR: GO EAST ON 8.
8 STEP FIVE: TAKE THE 111 OFF RAMP AND GO NORTH.
9 PARENTHESES. LEFT UNDER THE FREEWAY.
10 STEP SIX: TRAVEL NORTH ON 111 UNTIL YOU GET TO 78.
11 PARENTHESES. TRAFFIC LIGHT MAKE LEFT EAST.
12 STEP SEVEN: PAY CLOSE ATTENTION TO ROAD SIGNS.
13 THE GLAMIS ROAD SIGN IS SMALL.
14 STEP EIGHT: YOU’LL BE MAKING A LEFT OFF 78.
15 PARENTHESES. YOU SHOULD CROSS RAILROAD TRACKS IN
16 ABOUT ONE HUNDRED YARDS. THEN YOU SEE A CATTLE
17 YARD ON YOUR LEFT.
18 STEP NINE: STAY ON THIS ROAD UNTIL YOU SEE THE
19 GLAMIS STORE. MAKE A RIGHT ALONG THE RAILROAD
20 TRACKS JUST AFTER THE STORE.
21 STEP TEN: LOOK FOR THE SIXTH WASH AND MAKE A
22 RIGHT. KEEP THE RAILROAD TRACKS DIRECTLY BEHIND
23 YOU. LOOK FOR DAVID’S MOTOR HOME AND WHITE
24 TRAILER. PARENTHESES. SEE PICTURE.
25 TAMMY, THE BEST” — I’M SORRY — “TAMMY, BEST WAY
26 IS TO DRIVE AROUND EACH OF THE GROUPS THAT YOU SEE
27 BECAUSE WE MAY BE ON THE FAR SIDE FROM YOU. SO
28 JUST DRIVE OUT AWAY FROM THE RAILROAD TRACKS AND
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1 KEEP LOOKING FOR THE MOTOR HOME.
2 STEP 11: IF YOU FAIL TO FIND US I WILL BE AT THE
3 STORE AT 11:30 SHARP.
4 I LOVE YOU, DAVID.”
5 Q. SO THE ROUTE DESCRIBED IN THAT IS TAKING INTERSTATE
6 8; IS THAT CORRECT?
7 A. YES, SIR.
8 MR. CLARKE: THANK YOU.
9 NO FURTHER QUESTIONS.
10 THE COURT: ANYTHING FURTHER, MR. FELDMAN?
11
12 RECROSS-EXAMINATION +
13 BY MR. FELDMAN:
14 Q. THE ROUTE DESCRIBED TO GO INTERSTATE 8 SAYS TAKE
15 YOUR TRUCK, IT DOESN’T SAY TAKE YOUR MOTOR HOME, DOES IT?
16 A. NO, SIR.
17 Q. IT DOESN’T SAY TAKE YOUR TRAILER, DOES IT?
18 A. NO, SIR.
19 Q. JUST SAYS TAKE YOUR TRUCK, RIGHT?
20 A. YES, SIR.
21 Q. IN OTHER WORDS, THE SHORTEST DISTANCE BETWEEN TWO
22 POINTS WITHOUT A MOTOR HOME, CORRECT?
23 A. I’D BE DRAWING A LOT OF CONCLUSIONS ABOUT THAT,
24 SIR.
25 Q. MR. CLARKE JUST ASKED YOU WHETHER IT WAS
26 SPECULATION TO SAY WHETHER THE ZIP DISKS WERE LOCKED OR NOT OR
27 WHETHER YOU COULD TELL DATE OF LAST ACCESS IF THEY WERE LOCKED.
28 IN FACT, DIDN’T YOU JUST TELL ME ON CROSS THEY WERE NOT LOCKED?
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1 A. THEY WERE NOT LOCKED WHEN WE RECEIVED THEM, YES,
2 SIR.
3 Q. SO YOU COULD HAVE TOLD DATE OF LAST ACCESS HAD YOU
4 BEEN ASKED?
5 A. THE QUESTION I UNDERSTOOD IT WAS IF — IF IT HAD
6 BEEN LOCKED OR UNLOCKED, THE DISK COULD HAVE BEEN UNLOCKED SINCE
7 THE LAST TIME IT WAS VIEWED AND THE DATE WOULD HAVE BEEN
8 UNCHANGED. THAT’S A POSSIBILITY.
9 Q. WHEN YOU GOT THE DISKS THEY WERE NOT LOCKED,
10 CORRECT?
11 A. THAT IS CORRECT.
12 MR. CLARKE: EXCUSE ME, OBJECTION, VAGUE AS TO DISKS.
13 THE COURT: WELL, MAKE SURE WHICH DISKS WE’RE TALKING
14 ABOUT.
15
16 BY MR. FELDMAN:
17 Q. YOU DON’T LOCK C. D.S, DO YOU, BECAUSE THEY’RE
18 ALREADY — YOU CAN’T DO ANYTHING WITH THEM, RIGHT?
19 A. YES, SIR.
20 Q. IT’S ONLY THE ZIP DISKS THAT WE’RE TALKING ABOUT
21 THAT COMMUNICATE THIS NOTION OF LOCKED, CORRECT?
22 A. YES, SIR.
23 Q. WHEN THE ZIP DISKS CAME TO YOU THEY WERE UNLOCKED,
24 CORRECT?
25 A. THAT IS CORRECT.
26 Q. THEREFORE, YOU COULD HAVE ACCESSED THE DATE OF LAST
27 ACCESS?
28 A. YES, SIR.
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1 Q. HAD YOU BEEN ASKED TO DO SO?
2 MR. CLARKE: EXCUSE ME, OBJECTION, ARGUMENTATIVE.
3 THE COURT: SUSTAINED.
4
5 BY MR. FELDMAN:
6 Q. WERE YOU ASKED TO DO SO BEFORE THE 25TH OF JUNE,
7 2002?
8 A. NOT SPECIFICALLY, NO, SIR.
9 Q. SO — SO WITH REGARD TO THOSE ZIP DISKS, BASICALLY
10 IT WOULD BE SPECULATIVE FOR YOU TO SAY WHEN THE ZIP DISKS WERE
11 LAST ACCESSED?
12 A. YES, SIR.
13 Q. OR WHETHER THEY WERE LAST ACCESSED?
14 MR. CLARKE: OBJECTION, THAT’S VAGUE.
15 THE COURT: WELL, REPHRASE IT BUT I WILL ALLOW THE AREA
16 OF INQUIRY.
17
18 BY MR. FELDMAN:
19 Q. WOULDN’T IT BE ALSO SPECULATION FOR YOU TO OFFER AN
20 OPINION WITHOUT HAVING RUN YOUR FORENSIC SOFTWARE TO DETERMINE
21 WHETHER OR NOT THE FILES ON THE ZIP DISK HAD EVER BEEN ACCESSED
22 OTHER THAN THE INITIAL DOWNLOAD?
23 A. YES, SIR.
24 MR. FELDMAN: NO FURTHER.
25 THE COURT: ANYTHING FURTHER?
26 MR. CLARKE: JUST ONE I THINK.
27 ///
28 ///
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1 REDIRECT EXAMINATION +
2 BY MR. CLARKE:
3 Q. MR. WATKINS, ALL THIS DATA HAS IT BEEN PROVIDED TO
4 THE DEFENSE IN THIS CASE?
5 A. YES, SIR.
6 Q. INCLUDING ACCESS TO EXACTLY WHAT YOU OBTAINED FROM
7 MR. WESTERFIELD’S RESIDENCE IN TERMS OF COMPUTER DATA?
8 A. YES, SIR.
9 MR. CLARKE: I’M SORRY, YOUR HONOR. THAT WAS TWO
10 QUESTIONS.
11 THE COURT: ALL RIGHT.
12 ANYTHING FURTHER, MR. FELDMAN?
13 MR. FELDMAN: THANK YOU, NO.
14 THE COURT: ALL RIGHT. MAY THIS WITNESS BE EXCUSED OR
15 SUBJECT TO RECALL?
16 MR. CLARKE: EXCUSED.
17 MR. FELDMAN: I’M SORRY. SUBJECT TO RECALL PLEASE.
18 THE COURT: MR. WATKINS, LET’S MAKE SURE YOU DON’T —
19 THE WITNESS: RIGHT. I’M GOING TO MAKE SURE.
20 THE COURT: — INADVERTENTLY TAKE AN EXHIBIT. YOUR TIME
21 WITH US IS NOW CONCLUDED. REMEMBER YOU’RE UNDER THE ADMONITION
22 NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE MATTER’S
23 CONCLUDED, OKAY?
24 THE WITNESS: YES, SIR.
25 THE COURT: THANK YOU.
26 MR. FELDMAN: YOUR HONOR, I’M SORRY. BEFORE THE WITNESS
27 GOES, HE PROVIDED A PIECE OF PAPER. I THINK IT SHOULD BE MARKED
28 FOR THE RECORD. I JUST FAILED TO DO IT AND I’VE WRITTEN ON
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1 MINE.
2 THE COURT: IF YOU HAVE AN EXTRA COPY WE COULD MARK AS A
3 COURT EXHIBIT?
4 THE WITNESS: I BELIEVE I DO.
5 THE COURT: THAT WOULD BE MARKED 150 FOR IDENTIFICATION.
6 MR. FELDMAN: THANK YOU, YOUR HONOR.
7 (MARKED FOR ID: = TRIAL EX. 150, ZIP FILES INFO)
8 MR. FELDMAN: COULD I HAVE JUST A MOMENT WITH MR.
9 WATKINS, PLEASE?
10 THE COURT: SURE.
11 (PAUSE)
12 THE COURT: OKAY. MR. CLARKE.
13 MR. FELDMAN: THANK YOU, YOUR HONOR. I’M SORRY.
14 MR. CLARKE: YES, YOUR HONOR.
15 MITCHELL HOLLAND, PLEASE.
16 MR. FELDMAN: YOUR HONOR, BEFORE MR. HOLLAND, I JUST
17 CHECKED — CONFIRMED WITH THE WITNESS THAT WHAT I’VE GOT IN MY
18 LEFT HAND IS A TRUE COPY OF THE PAPER THAT HE HANDED TO ME AND I
19 WOULD JUST ASK THAT IT BE MARKED NEXT IN ORDER, PLEASE.
20 THE COURT: WELL, IT HAS BEEN. 150, IT WILL BE SO
21 DESIGNATED.
22 MR. FELDMAN: AND IT WOULD BE DESCRIBED AS A DOCUMENT
23 PROVIDED BY MR. WATKINS REFLECTING THE FILES THAT WERE SHOWN TO
24 THE JURY AND DATES OF CREATION AND PATH.
25 THE COURT: ALL RIGHT.
26 MR. FELDMAN: THANK YOU.
27
28 ///
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1 -MITCHELL HOLLAND, +
2 PLAITIFF’S WITNESS, HAVING BEEN SWORN, TESTIFIED AS FOLLOWS:
3
4 THE COURT: PLEASE HAVE A SEAT, SIR.
5 THE CLERK: SIR, PLEASE STATE YOUR NAME AND SPELL IT FOR
6 THE RECORD.
7 THE WITNESS: MITCHELL, M-I-T-C-H-E-L-L, MARK, M-A-R-K,
8 HOLLAND, H-O-L-L-A-N-D.
9
10 DIRECT EXAMINATION +
11 BY MR. CLARKE:
12 Q. GOOD MORNING.
13 A. GOOD MORNING.
14 Q. WHO ARE YOU EMPLOYED BY?
15 A. I’M EMPLOYED BY THE BODE, B-O-D-E, TECHNOLOGY
16 GROUP.
17 Q. WHAT IS BODE TECHNOLOGY GROUP?
18 A. THE BODE TECHNOLOGY GROUP IS A FORENSIC D. N. A.
19 LABORATORY. WE DO CONVICTED OFFENDER DATA BANKING. WE DO
20 FORENSIC CASE WORK AND WE ALSO DO FORENSIC RESEARCH IN THE AREA
21 OF DATA BANKING. WE’VE DONE TENS OF THOUSANDS, IF NOT OVER
22 HUNDREDS OF THOUSANDS, OF SAMPLES PER YEAR. IN THE CASE WORK
23 AREA WE DO THOUSANDS OF FORENSIC CASES PER YEAR.
24 Q. ALL RIGHT.
25 I’M GOING TO ASK YOU TO TELL US A LITTLE BIT ABOUT
26 A TERM JUST BECAUSE YOU’VE USED IT, “CONVICTED OFFENDER DATA
27 BANKING.” JUST SO WE’RE CLEAR, THAT’S NOT INVOLVED IN THIS
28 CASE?
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1 A. THAT’S CORRECT.
2 Q. CAN YOU GIVE US JUST A BRIEF EXAMPLE OF WHAT THAT
3 IS?
4 A. CONVICTED OFFENDER DATA BANKING IS A WAY YOU CAN
5 SOLVE UNSOLVED SUSPECT CASES. IF AN INDIVIDUAL COMMITTED A
6 CRIME, HIS D. N. A. PROFILE CAN BE PUT INTO A DATABASE. IF
7 THERE’S A FUTURE CRIME WHERE THERE IS NO SUSPECT BUT THERE’S A
8 D. N. A. SAMPLE USED AT THE SCENE OF THE CRIME, THAT PROFILE CAN
9 BE USED TO COMPARE THAT WITH OUR DATABASE, AND IF IT HITS THAT
10 INDIVIDUAL THEN HE BECOMES A SUSPECT.
11 Q. WHAT IS YOUR POSITION AT THE BODE TECHNOLOGY GROUP?
12 A. I’M THE LABORATORY DIRECTOR.
13 Q. WHAT ARE YOUR DUTIES IN THAT POSITION?
14 A. I OVERSEE ALL THE DATA BANKING AND FORENSIC CASE
15 WORK.
16 Q. BY FORENSIC CASE WORK WHAT IS THAT?
17 A. FORENSIC CASE WORK IS EITHER S. T. R. CASE WORK OR
18 MITOCHONDRIAL CASE WORK.
19 Q. THIS JURY HAS HEARD THE TERM S. T. R. AS WELL AS
20 THE TERM NUCLEAR D. N. A. DO THOSE RELATE TO THE SAME KIND OF
21 TESTING?
22 A. YES, THEY DO.
23 Q. AS OPPOSED TO MITOCHONDRIAL D. N. A.?
24 A. CORRECT.
25 Q. NOW, IF YOU WOULD, COULD YOU PLEASE DESCRIBE FOR
26 THE JURY YOUR FORMAL EDUCATIONAL BACKGROUND?
27 A. SURE. I HAVE A BACHELORS DEGREE IN CHEMISTRY FROM
28 HOBART COLLEGE WHICH I RECEIVED IN 1984. I HAVE A PHD DEGREE IN
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1 BIOCHEMISTRY, WHICH I RECEIVED FROM THE UNIVERSITY OF MARYLAND
2 IN 1989; AND I ALSO DID A POST DOCTORAL FELLOWSHIP WITH JOHNS
3 HOPKINS UNIVERSITY IN HUMAN GENETICS BETWEEN 1989 AND 1990.
4 Q. WHAT DID THAT WORK AT JOHNS HOPKINS UNIVERSITY
5 INVOLVE IN THE AREA OF — I’M SORRY, WAS IT MEDICAL GENETICS?
6 A. IT WAS HUMAN GENETICS.
7 Q. — HUMAN GENETICS? TELL US A LITTLE BIT ABOUT
8 THAT?
9 A. IT WAS STUDYING THE “X” CHROMOSOME, DIFFERENT
10 PATTERNS OF — DIFFERENT WAYS OF THE “X” CHROMOSOME TO BE
11 INACTIVATED.
12 WOMEN HAVE TWO “X” CHROMOSOMES; ONE OF THEM IS
13 INACTIVE AND THE OTHER IS ACTIVE. IF WOMEN HAD TWO ACTIVE “X”
14 CHROMOSOMES THEY WOULD NOT SURVIVE. SO WE WERE STUDYING THE
15 GENETIC ASPECTS OF “X” CHROMOSOME AND ACTIVATION.
16 Q. THAT WAS IN — THAT WAS PART OF YOUR WORK AFTER YOU
17 RECEIVED YOUR PHD DEGREE, IS THAT RIGHT?
18 A. THAT’S CORRECT.
19 Q. DID YOU TAKE A POSITION AFTER THAT?
20 A. SHORTLY THEREAFTER I TOOK A POSITION WITH THE ARMED
21 FORCES D. N. A. IDENTIFICATION LABORATORY, WHICH IS LOCATED IN
22 ROCKVILLE, MARYLAND.
23 Q. WHEN WAS THAT?
24 A. THAT WAS IN 1991.
25 Q. WHAT IS THE ARMED FORCES D. N. A. IDENTIFICATION
26 LABORATORY?
27 A. THE ARMED FORCES D. N. A. IDENTIFICATION
28 LABORATORY, OR THE ACRONYM IS A. F. D. I. L., AFDIL, IS A
6454
1 FORENSIC D. N. A. LABORATORY THAT ASSISTS THE U.S. MILITARY IN
2 IDENTIFYING U.S. SERVICE MEMBERS.
3 Q. UNDER WHAT CIRCUMSTANCES?
4 A. UNDER CIRCUMSTANCES OF POTENTIAL WAR, TRAINING
5 MISHAPS OR IDENTIFICATION OF INDIVIDUALS FROM PREVIOUS MILITARY
6 CONFLICTS.
7 Q. DID YOU HAVE ONE POSITION OR A NUMBER OF DIFFERENT
8 POSITIONS WHILE YOU WERE AT THE ARMED FORCES IDENTIFICATION
9 LABORATORY?
10 A. I STARTED AT AFDIL AS A RESEARCH SCIENTIST AND
11 WORKED MY WAY UP TO THE LABORATORY DIRECTOR.
12 Q. OVER WHAT PERIOD OF TIME WERE YOU AT A. F. D. I.
13 L.?
14 A. FOR NINE AND A HALF YEARS.
15 Q. ULTIMATELY, WHAT WAS THE POSITION THAT YOU
16 EVENTUALLY WERE APPOINTED TO AT THAT ORGANIZATION?
17 A. LABORATORY DIRECTOR.
18 Q. WERE YOUR DUTIES THE SAME OR SIMILAR TO WHAT YOU DO
19 NOW AT BODE?
20 A. BASICALLY THE SAME.
21 Q. DID YOU WORK AT A. F. D. I. L. INCLUDE THE WORK OF
22 IDENTIFYING REMAINS OF AMERICAN WAR DEAD?
23 A. YES, IT DID.
24 Q. COULD YOU TELL US HOW THAT WOULD BE DONE?
25 A. STARTING IN 1991, WE USED MITOCHONDRIAL DNA TESTING
26 TO ASSIST THE MILITARY IN IDENTIFYING U.S. SERVICE MEMBERS
27 KILLED IN VIET NAM, IN KOREA, EVEN IN WORLD WAR II, AND ONE OF
28 THE MOST NOTABLE CASES WAS IDENTIFYING THE VIET NAM UNKNOWN
6455
1 SOLDIER, WHICH WE DID IN 1998 USING MITOCHONDRIAL DNA TESTING.
2 Q. WAS THAT WORK DONE UNDER YOUR LEADERSHIP OF THE
3 LABORATORY?
4 A. YES, IT WAS.
5 Q. SO IS THAT, IN FACT, NO LONGER THE TOMB OF THE
6 UNKNOWN VIET NAM SOLDIER?
7 A. IT’S STILL A MEMORIAL, HOWEVER, THERE’S NO ONE AT
8 THIS POINT IN THE TOMB FROM THE VIET NAM WAR. THERE ARE
9 INDIVIDUALS IN THE TOMBS FOR THE KOREAN WAR, WORLD WAR I AND
10 WORLD WAR II.
11 Q. AS FAR AS THIS IDENTIFICATION PROCESS, WHILE YOU
12 WERE AT A. F. D. I. L. WAS THERE A CERTAIN TYPE OF D. N. A.
13 TYPING THAT YOU USED FOR IDENTIFYING REMAINS?
14 A. PRINCIPALLY FOR THE OLDER REMAINS YOU USE
15 MITOCHONDRIAL D. N. A.
16 Q. WHY? WHY NOT NUCLEAR D. N. A., IF YOU CAN DESCRIBE
17 THAT, PLEASE?
18 A. TWO CHARACTERISTICS OF MITOCHONDRIAL D. N. A. THAT
19 ARE DIFFERENT FROM S. T. R. OR NUCLEAR D. N. A. ARE THAT IT’S
20 MATERNALLY INHERITED, SO IT’S ONLY INHERITED FROM YOUR MOTHER.
21 BECAUSE OF THAT YOU CAN USE REFERENCE SOURCES OR COMPARISON
22 SOURCES THAT ARE DISTANTLY RELATED TO THE INDIVIDUAL. SO, FOR
23 INSTANCE, FROM WORLD WAR II, IT’S NEAR IMPOSSIBLE TO FIND A
24 MOTHER AND A FATHER THAT’S STILL LIVING FROM AN INDIVIDUAL WHO’S
25 DECEASED FROM WORLD WAR II. AND SO WE USE DISTANTLY RELATED
26 MATERNAL RELATIVES FOR COMPARISON PURPOSES.
27 THE OTHER IMPORTANT ASPECT OF MITOCHONDRIAL D. N.
28 A. IS THAT IT’S A HIGH COPY NUMBER D. N. A. IN A CELL.
6456
1 Q. WHAT’S THAT MEAN?
2 A. MEANING THAT THERE ARE ONLY TWO COPIES OF NUCLEAR
3 D. N. A. OR THE S. T. R. D. N. A. BUT THERE COULD BE THOUSANDS
4 OF COPIES OF MITOCHONDRIAL D. N. A. THE REASON THAT’S IMPORTANT
5 IS WHEN YOU’RE LOOKING AT SAMPLES WITH VERY LITTLE D. N. A., YOU
6 MAY BE ABLE TO GET A MITOCHONDRIAL D. N. A. TYPE WHEN YOU CANNOT
7 GET AN S. T. R. TYPE.
8 Q. NOW I’D LIKE TO MOVE FORWARD TO BODE. WHEN DID YOU
9 FIRST GO TO WORK FOR BODE?
10 A. IN AUGUST OF 2000.
11 Q. WOULD YOU DESCRIBE SOME OF THE SERVICES THAT BODE
12 PROVIDES AS FAR AS I THINK CONVICTED OFFENDER DATA BANKING AND
13 FORENSIC WORK, IS THAT RIGHT?
14 A. THAT’S CORRECT.
15 Q. UNDER YOUR DIRECTION WAS YOUR LABORATORY ASKED TO
16 PARTICIPATE IN THE IDENTIFICATION OF REMAINS FROM ATTACKS OF
17 SEPTEMBER 11.
18 A. YES, WE WERE. SINCE OCTOBER OF LAST YEAR OUR
19 LABORATORY HAS RECEIVED APPROXIMATELY 13 THOUSAND SKELETAL
20 FRAGMENTS FROM THE VICTIMS OF THE WORLD TRADE CENTER DISASTERS.
21 ALSO SOME EXTRACTS FROM D. N. A. EXTRACTS FROM SOFT TISSUE
22 SAMPLES, AND ALSO ABOUT 3,000 FAMILY OR PERSONAL REFERENCES FROM
23 THE VICTIMS.
24 Q. THAT REPRESENT A FAIRLY SUBSTANTIAL EFFORT TO
25 PERFORM THAT KIND OF WORK?
26 A. YES.
27 Q. HAS YOUR LABORATORY AT BODE ALSO PARTICIPATED OR
28 ACTUALLY CONDUCTED TESTING IN IDENTIFYING THE REMAINS OF
6457
1 AMERICANS AND FOREIGNERS KILLED IN AIRPLANE DISASTERS IN THIS
2 COUNTRY?
3 A. WE HAD PREVIOUSLY ASSISTED THE ARMED FORCES D. N.
4 A. IDENTIFICATION LABORATORY IN IDENTIFYING VICTIMS OF THE
5 ALASKA AIRLINES CRASH IN THE SUMMER OF 2000.
6 Q. ANY OTHER CRASHES SINCE THAT TIME?
7 A. AND ALSO DURING THE WORLD TRADE CENTER
8 IDENTIFICATION PROCESS, OF COURSE, THERE WAS THE CRASH IN
9 NOVEMBER OF AMERICAN AIRLINES FLIGHT 587 IN QUEENS, NEW YORK,
10 AND WE ALSO ASSISTED IN IDENTIFYING THOSE INDIVIDUALS.
11 Q. IS BODE LABORATORY ACCREDITED?
12 A. YES, WE ARE.
13 Q. BY WHOM?
14 A. WE HAVE ONE ACCREDITATION AND TWO CERTIFICATIONS.
15 THE ONE ACCREDITATION IS THE AMERICAN SOCIETY OF CRIME
16 LABORATORY DIRECTORS LABORATORY ACCREDITATION BOARD. THE TWO
17 CERTIFICATIONS; ONE IS BY THE NATIONAL FORENSIC SCIENCE
18 TECHNOLOGY CENTER AND THE OTHER IS SORT OF A UNIQUE ONE. IT’S
19 THE NEW YORK STATE HEALTH DEPARTMENT. NEW YORK STATE REQUIRES
20 THAT ANYBODY WHO DOES D. N. A. TESTING FOR THE STATE OF NEW YORK
21 HAS A SEPARATE CERTIFICATION. SO WE HAVE THREE ACCREDITATION
22 CERTIFICATIONS.
23 Q. I’D LIKE TO GO BACK TO MITOCHONDRIAL D. N. A.
24 TESTING AND ASK, IN YOUR TIME PERIOD AT A. F. D. I. L. DID YOU
25 PARTICIPATE IN ACTUALLY DEVELOPING METHODS TO CONDUCT
26 MITOCHONDRIAL D. N. A. TESTING?
27 A. YES, I WAS.
28 Q. TELL US A LITTLE BIT ABOUT THAT.
6458
1 A. WELL, WE DEVELOPED THE METHODS IN 1991 AND WE
2 APPLIED THEM THEN TO ASSIST IN THE IDENTIFICATION OF VIET NAM
3 SERVICE MEMBERS IN 1991 AND CONTINUED TO USE BASICALLY THOSE
4 SAME METHODS FOR THE LAST TEN TO 12 YEARS AND THEY CONTINUE TO
5 USE THOSE SAME METHODS.
6 Q. THE METHODS FOR MITOCHONDRIAL D. N. A. TESTING THAT
7 YOU HELPED DEVELOP, HAVE YOU BEEN ASKED TO DESCRIBE AND
8 BASICALLY COMMUNICATE THOSE METHODS TO OTHER LABORATORIES AROUND
9 THE WORLD?
10 A. YES. WHILE I WAS AT AFDIL THE MAJOR THRUST WAS TO
11 TRANSFER THE TECHNOLOGY TO THE FORENSIC COMMUNITY, SO BOTH
12 WITHIN THE UNITED STATES AND INTERNATIONALLY WE ASSISTED MANY
13 FORENSIC LABORATORIES AROUND THE WORLD IN BEING ABLE TO USE
14 MITOCHONDRIAL D. N. A. IN A CRIMINALISTICS SETTING OR AN
15 IDENTIFICATION SETTING.
16 Q. WHAT BENEFITS, IF ANY, DOES MITOCHONDRIAL D. N. A.
17 HAVE IN CRIMINAL CASE WORK?
18 A. WELL, THE MAJOR APPLICATION IN CRIMINAL CASE WORK
19 IS HAIR SHAFTS. AND THE REASON IT’S USED FOR HAIR SHAFTS IS
20 BECAUSE IF YOU ATTEMPT NUCLEAR D. N. A. OR S. T. R. D. N. A.
21 TESTING ON HAIR SHAFTS, YOU SIMPLY DON’T GET A RESULT. WHEREAS
22 WITH MITOCHONDRIAL D. N. A. TESTING, THERE IS STILL ENOUGH
23 MITOCHONDRIAL D. N. A. IN A HAIR SHAFT TO OBTAIN A RESULT.
24 Q. WITH REGARD TO HAIRS, IF A HAIR HAS A SUFFICIENT
25 AMOUNT OF ROOT MATERIAL ATTACHED IN GOOD ENOUGH CONDITION, CAN
26 YOU USE NUCLEAR OR S. T. R. D. N. A. TESTING?
27 A. YES, YOU CAN.
28 Q. AND OBTAIN RESULTS ON OCCASION?
6459
1 A. YES. IF YOU HAVE WHAT’S CALLED FOLLICULAR TISSUE
2 OR CELLS THAT ARE ASSOCIATED WITH THE FOLLICLE OF THE HAIR YOU
3 MAY BE ABLE TO GET AN S. T. R. RESULT FROM THE HAIR ROOT.
4 Q. IS AN EXAMPLE OF A HAIR THAT MIGHT HAVE ENOUGH D.
5 N. A. ON ITS ROOT A HAIR FORCIBLY REMOVED FROM A PERSON’S HEAD?
6 A. YES.
7 Q. WHAT ABOUT HAIRS THAT JUST SIMPLY SHED OUT, WHAT
8 CAN YOU TELL US ABOUT THEM AND THEIR PROSPECTS FOR NUCLEAR OR S.
9 T. R. D. N. A. RESULTS?
10 A. IN GENERAL, FORCIBLY REMOVED HAIRS HAVE MORE TISSUE
11 ASSOCIATED WITH THEM AND HAVE A GREATER LIKELIHOOD OF ATTAINING
12 AN S. T. R. RESULT. WHEREAS HAIRS THAT ARE SHED EVERY DAY, AND
13 WE SHED MANY HAIRS EVERY DAY, THOSE TEND NOT TO HAVE MUCH CELL
14 MATERIAL ON THE ROOT, AND SO YOU GENERALLY CAN ONLY DO
15 MITOCHONDRIAL D. N. A. TESTING ON THOSE HAIRS.
16 Q. BUT I GATHER FROM YOUR TESTIMONY THAT THERE’S NO
17 HARD AND FAST RULE THAT A PLUCKED HAIR WILL HAVE ENOUGH D. N. A.
18 IN THE ROOT, OR CONVERSELY, THAT A SHED HAIR NECESSARILY WON’T
19 HAVE ENOUGH ROOT?
20 A. THAT IS CORRECT.
21 Q. NOW, I’D LIKE TO TURN YOUR ATTENTION, IF I COULD,
22 TO A CASE INVOLVING THE INVESTIGATION OF THE DISAPPEARANCE OF
23 DANIELLE VAN DAM, AND ASK IF YOUR LABORATORY WAS REQUESTED TO
24 PERFORM TESTING IN THIS CASE?
25 A. YES, WE DID.
26 Q. DID YOU, IN FACT, RECEIVE EVIDENCE ON MULTIPLE
27 OCCASIONS WITH REQUESTS THAT YOU PERFORM TESTING?
28 A. YES, WE DID.
6460
1 Q. WAS THAT REQUEST DONE BY THE SAN DIEGO POLICE
2 DEPARTMENT AND/OR THE OFFICE OF THE DISTRICT ATTORNEY OF SAN
3 DIEGO COUNTY?
4 A. YES, IT WAS.
5 Q. DID YOU PERFORM NUCLEAR OR S. T. R. D. N. A.
6 TESTING ON SOME OF THAT EVIDENCE?
7 A. YES, WE DID.
8 Q. DID YOU ALSO PERFORM MITOCHONDRIAL D. N. A. TESTING
9 ON OTHER PORTIONS OF THAT EVIDENCE?
10 A. YES, WE DID.
11 Q. I’D LIKE TO FOCUS YOUR ATTENTION INITIALLY ON THE
12 NUCLEAR S. T. R. D. N. A. TESTING, AND ASK IF ONE OF THE ITEMS
13 YOUR LABORATORY RECEIVED WAS AN ITEM LABELED “VICTIM PAJAMAS”
14 ITEM NO. 2-1?
15 A. IF I CAN REFER TO MY NOTES IT WOULD HELP ME TO
16 ANSWER THAT QUESTION.
17 Q. PLEASE DO SO.
18 THE ONLY REQUEST WE HAVE IS THAT WHEN YOU DO REFER
19 TO THEM, IF YOU WOULD JUST LET US KNOW WHAT DOCUMENT YOU’RE
20 LOOKING AT, PAGE NUMBER AND SO FORTH.
21 A. OKAY, SURE.
22 OKAY. I’M REFERRING TO PAGE 167, WHICH IS A CHAIN
23 OF CUSTODY DOCUMENT DATED 16 APRIL 2002.
24 Q. ALL RIGHT.
25 AND DOES THAT OR — DOES THAT PROVIDE YOU WITH
26 INFORMATION ABOUT THE ACTUAL DATA OR — I’M SORRY — PROVIDE YOU
27 INFORMATION ABOUT WHETHER OR NOT YOUR LABORATORY RECEIVED AN
28 ITEM LABELED 2-1 VICTIM’S PAJAMAS?
6461
1 A. YOU MAY NOT HAVE THAT SAME NUMBER.
2 Q. ALL RIGHT.
3 DO YOU ASSIGN WHEN YOU RECEIVE EVIDENCE IN YOUR
4 LABORATORY NUMBERS WITHIN YOUR LABORATORY?
5 A. YES, WE DO.
6 Q. WAS ONE OF THOSE ITEMS THAT YOU WERE PROVIDED, OR
7 AT LEAST THAT YOU ASSIGNED, A NUMBER TO LABEL AS FAR AS BODE
8 NUMBER NO. 21?
9 A. YES. I’M SORRY, THAT’S PAGE 178. THAT’S THE
10 SECOND CHAIN OF CUSTODY FORM WHICH IS DATED 30 APRIL 2002, AND
11 YES, IT IS ITEM 2-1 AND OUR BODE NUMBER IS 2S02066-21.
12 Q. DO ALL OF YOUR BODE NUMBERS END IN TWO DIGITS?
13 A. YES, THEY DO.
14 Q. IS THE PREVIOUS NUMBER BASICALLY THE CASE NUMBER?
15 A. THAT’S CORRECT.
16 Q. BUT THAT SAME NUMBER APPLIES TO ALL OF THE ITEMS IN
17 THIS CASE?
18 A. THAT’S CORRECT.
19 Q. SO CAN WE USE FOR BODE NUMBER PURPOSES JUST THE TWO
20 DIGIT NUMBER?
21 A. YES, WE CAN.
22 Q. ALL RIGHT.
23 WAS THAT AN ITEM IDENTIFIED TO YOU AS ITEM NO. 2-1?
24 A. YES, IT WAS.
25 Q. ALL RIGHT.
26 I’D LIKE TO ALSO ASK BEFORE WE GO INTO THAT, WERE
27 YOU PROVIDED KNOWN SAMPLES OF CERTAIN INDIVIDUALS INVOLVED IN
28 THIS CASE?
6462
1 A. YES, WE WERE.
2 Q. DID THAT INCLUDE A KNOWN SAM — OR A SWAB RATHER
3 FROM A MAN IDENTIFIED AS DAVID WESTERFIELD, ITEM NO. 95?
4 A. THAT IS CORRECT.
5 Q. WERE YOU ALSO PROVIDED A PORTION OF A RIB BONE
6 IDENTIFIED AS COMING FROM DANIELLE VAN DAM, AN ITEM IDENTIFIED
7 BY NO. 107?
8 A. THAT IS CORRECT.
9 Q. AS FAR AS THE NUCLEAR OR S. T. R. D. N. A. TESTING
10 YOU CONDUCTED, I ASSUME YOU GOT RESULTS FROM SOME ITEMS; IS THAT
11 CORRECT?
12 A. THAT IS CORRECT.
13 Q. FAILED TO GET RESULTS ON SOME ITEMS?
14 A. THAT IS CORRECT.
15 Q. DID YOU THEN CONDUCT A COMPARISON TO THE KNOWN
16 SAMPLES YOU WERE PROVIDED BY BOTH — OR FROM BOTH DAVID
17 WESTERFIELD AND DANIELLE VAN DAM?
18 A. YES, WE DID.
19 Q. IS THERE ANY SIGNIFICANCE TO USING A RIB BONE FROM
20 A PARTICULAR PERSON AS OPPOSED TO A MOUTH SWAB, A BLOOD SAMPLE
21 AND SO FORTH?
22 A. NO. FOR S. T. R. ANALYSIS YOU COULD USE A
23 BLOODSTAIN, AN ORAL SWAB, SOFT TISSUE, A RIB IS HARD TISSUE.
24 ANY BIOLOGICAL SOURCE FROM THE INDIVIDUAL WILL GIVE YOU THE SAME
25 PROFILE.
26 Q. THAT’S D. N. A. PROFILE?
27 A. S. T. R. PROFILE, THAT’S CORRECT.
28 Q. NOW, GOING BACK TO, IF WE COULD, YOUR ITEM NUMBER,
6463
1 I BELIEVE IT WAS 21, ITEM 2-1 THAT THIS JURY HAS PREVIOUSLY
2 HEARD AS MATERIAL FROM VICTIM’S PAJAMAS, CAN YOU TELL US WHAT
3 RESULTS YOU OBTAINED?
4 A. I’M NOW REFERRING TO A REPORT THAT WE SUBMITTED ON
5 MAY THE 10TH, 2002, PAGE 194. THAT REPORT OR — EXCUSE ME —
6 WITHIN THE CASE FILE IT’S PAGE 194. IT’S PAGE TWO OF THE
7 REPORT. NO REPORTABLE S. T. R. RESULTS WERE OBTAINED FROM THE
8 FOLLOWING EVIDENCE ITEMS TO INCLUDE SAMPLE 21.
9 Q. ALL RIGHT.
10 WHAT DO YOU MEAN “NO REPORTABLE RESULTS”?
11 A. NO RESULTS WERE OBTAINED THAT WE WERE ABLE TO CALL
12 OR MAKE ANY INTERPRETATION OR CONCLUSIONS FROM.
13 Q. I’D NOW LIKE TO SHIFT YOUR ATTENTION TO AN
14 ADDITIONAL ITEM, ITEM NO. 3A-1 AND IDENTIFIED AS VICTIM
15 CLOTHING — ALSO VICTIM CLOTHING, AND ASK IF THAT IS BODE NO.
16 23?
17 A. THAT IS CORRECT.
18 Q. WERE RESULTS OBTAINED FROM THAT PARTICULAR ITEM?
19 A. AGAIN, I’M REFERRING TO PAGE 194, THE CASE FILE
20 PAGE TWO OF THE REPORT DATED 10 MAY. COMPLETE S. T. R. D. N. A.
21 PROFILE WAS OBTAINED FROM ITEM 23.
22 Q. WAS THAT PROFILE COMPARED TO THE KNOWN PROFILE OF
23 DANIELLE VAN DAM?
24 A. YES, IT WAS.
25 Q. WITH WHAT RESULTS?
26 A. READ FROM PAGE 193, OR PAGE THREE OF THE REPORT,
27 BASED ON THE D. N. A. PROFILES DERIVED FROM THIS ANALYSIS THE
28 PROFILES OBTAINED FROM SAMPLE 23, I PARAPHRASE, MATCHES THE
6464
1 PROFILE OF DANIELLE VAN DAM.
2 Q. I’D LIKE TO TURN YOUR ATTENTION NOW TO AN
3 ADDITIONAL ITEM THAT WAS INITIALLY LABELED ITEM 10-7A,
4 IDENTIFIED AS A CUTTING TAKEN FROM A BLANKET FROM THE VICTIM’S
5 BEDROOM, I BELIEVE WAS LABELED IN YOUR LABORATORY ITEM 25?
6 A. THAT IS CORRECT.
7 Q. WERE RESULTS OBTAINED FROM THAT ITEM?
8 A. REGARDING SAMPLE 25, A MIXED D. N. A. PROFILE WAS
9 OBTAINED.
10 Q. MIXED MEANING WHAT?
11 A. MORE THAN ONE CONTRIBUTOR.
12 Q. BY COMPARISON OF THAT PARTICULAR SAMPLE, THAT IS,
13 THE RESULTS FROM THAT MIXTURE TO ANY OF THE KNOWN INDIVIDUALS IN
14 THIS CASE COULD YOU REACH ANY CONCLUSIONS?
15 A. YES. ON PAGE FOUR OF THE REPORT DATED 10 MAY,
16 BASED ON THE D. N. A. PROFILES DERIVED FROM THIS ANALYSIS,
17 DANIELLE VAN DAM CANNOT BE EXCLUDED AS A POSSIBLE MINOR
18 CONTRIBUTOR TO THE MIXTURE OBSERVED IN SAMPLE 25.
19 MR. WESTERFIELD IS EXCLUDED AS A CONTRIBUTOR TO
20 THIS MIXTURE.
21 Q. FROM YOUR RESULTS ARE YOU ABLE TO DETERMINE WHETHER
22 OR NOT THE OTHER CONTRIBUTOR TO THAT MIXTURE COULD HAVE BEEN A
23 SIBLING OF DANIELLE VAN DAM OR CAN YOU DETERMINE THAT?
24 A. I HAVE NOT LOOKED AT THAT TO ANSWER THAT QUESTION.
25 Q. ALL RIGHT.
26 I’D LIKE TO TURN YOUR ATTENTION NOW TO AN ITEM
27 LABELED T. E.-J. S. 4 THAT I BELIEVE WAS LABELED IN YOUR
28 LABORATORY SEPARATELY THREE DIFFERENT ITEMS WITHIN THAT GROUP,
6465
1 NUMBERS 27, 28 AND 29; IS THAT CORRECT?
2 A. THAT IS CORRECT.
3 Q. DID THAT CONSIST OF WHAT WERE IDENTIFIED AS
4 SCRAPINGS FROM THE RIGHT FINGERNAILS OF DANIELLE VAN DAM?
5 A. ITEM 28 IS DESCRIBED AS AN ENVELOPE CONTAINING
6 SCRAPINGS COLLECTED FROM THE RIGHT FINGERNAILS.
7 Q. ALL RIGHT.
8 WHAT WAS YOUR ITEM 29 IDENTIFIED AS?
9 A. ONE ENVELOPE CONTAINING A POSSIBLE BLOOD
10 FLAKE/TISSUE.
11 Q. AND ACTUALLY I WENT IN THE WRONG ORDER. HOW ABOUT
12 27?
13 A. 27, ONE ENVELOPE CONTAINING SCRAPINGS COLLECTED
14 FROM LEFT FINGERNAILS.
15 Q. WERE EACH OF THOSE TESTED BY YOUR LABORATORY?
16 A. YES, THEY WERE.
17 Q. AND LET’S START WITH WHICHEVER IS EASIEST IN EACH
18 OF THOSE THREE ITEMS.
19 A. WELL, FOR BOTH ITEMS 27 AND 29, AGAIN 27 IS LEFT
20 FINGERNAIL SCRAPINGS, 29 IS THE POSSIBLE FLAKE — BLOOD FLAKE OR
21 TISSUE. FOR THOSE TWO ITEMS WE RECEIVED NO RESULTS.
22 Q. WHAT ABOUT THE THIRD ITEM, THE RIGHT SCRAPINGS?
23 A. FOR ITEM 28, WHICH WAS THE RIGHT FINGERNAIL
24 SCRAPINGS, WE OBTAINED A PARTIAL S. T. R. PROFILE.
25 Q. NOW, PARTIAL S. T. R. PROFILE, WHAT DOES THAT MEAN?
26 A. THERE ARE 13 LOCATIONS THAT WE COMMONLY LOOK AT IN
27 EACH SAMPLE, AND WE WERE UNABLE TO OBTAIN THE RESULTS FROM ALL
28 13 LOCATIONS. SO IT BECOMES A PARTIAL PROFILE.
6466
1 Q. CAN YOU USE A PARTIAL PROFILE TO MAKE COMPARISONS
2 TO INDIVIDUALS TO SEE IF THAT PERSON COULD OR COULDN’T HAVE LEFT
3 THAT SAMPLE?
4 A. YES, YOU CAN.
5 Q. WERE YOU ABLE TO DO THAT IN THIS CASE?
6 A. YES, WE WERE.
7 Q. WITH WHAT RESULTS?
8 A. ITEM 28 MATCHED THE PROFILE OF DANIELLE VAN DAM AT
9 THE LOCATIONS WE WERE ABLE TO OBTAIN. AND MR. WESTERFIELD IS
10 EXCLUDED AS THE SOURCE OF THIS ITEM.
11 Q. I’D NOW LIKE TO TURN YOUR ATTENTION TO AN ITEM
12 LABELED AS NO. 77, A HAIR FROM A SINK DRAIN, AND ASK IF YOU
13 RECEIVED THAT ITEM IN YOUR LABORATORY AND CONDUCTED TESTING ON
14 IT.
15 A. YES. THAT’S ITEM 11 IN OUR LABORATORY.
16 Q. AND ITEM 77 IN THE PREVIOUS DESIGNATIONS?
17 A. THAT’S CORRECT.
18 Q. DID YOU OBTAIN RESULTS FROM TESTING, AND I’M
19 TALKING ABOUT NUCLEAR TESTING, S. T. R. TESTING OF THAT HAIR?
20 A. YES. WE OBTAINED A PARTIAL S. T. R. PROFILE FROM
21 SAMPLE 11.
22 Q. BY PARTIAL WHAT DO YOU MEAN IN THIS INSTANCE?
23 A. REFERRING TO PAGE 191 OR PAGE FIVE OF THE REPORT,
24 ITEM 11 IN OUR LABORATORY, OR ITEM 77 AS RECEIVED FROM SAN DIEGO
25 POLICE, WE OBTAINED 12 OF THE 13 LOCATIONS, SO WE WERE UNABLE TO
26 OBTAIN A RESULT FROM ONE OF THE 13 LOCATIONS.
27 Q. SO YOU GOT RESULTS AT ALL 13 LOCATIONS EXCEPT ONE?
28 A. THAT’S CORRECT.
6467
1 Q. FOR A TOTAL OF 12?
2 A. THAT’S CORRECT.
3 Q. CAN THAT BE USED TO MAKE A COMPARISON OF KNOWN
4 SAMPLES THAT WERE INVOLVED FROM INDIVIDUALS IN THIS CASE?
5 A. YES, IT CAN.
6 Q. WITH WHAT RESULTS?
7 A. FOR ITEM 11, THE PROFILE OBTAINED FROM DANIELLE VAN
8 DAM MATCHES THE D. N. A. PROFILE FROM THE HAIR FROM THE SINK,
9 AGAIN ITEM 11.
10 MR. WESTERFIELD’S EXCLUDED AS BEING THE SOURCE OF
11 THIS HAIR.
12 Q. ALL RIGHT.
13 LASTLY, WITH REGARD TO S. T. R. OR NUCLEAR D. N. A.
14 TESTING, DID YOU PERFORM TESTING ON AN ITEM IDENTIFIED AS NO.
15 84, CUTTING FROM A CARPET?
16 A. YES, WE DID.
17 Q. JUST TO BE CONSISTENT WHAT WAS THE BODE NUMBER?
18 A. THE BODE NUMBER FOR THAT SAMPLE IS NO. 12.
19 Q. WITH WHAT RESULTS?
20 A. FOR SAMPLE NO. 12 WE OBTAINED A COMPLETE S. T. R.
21 PROFILE.
22 Q. WERE YOU ABLE TO DETERMINE WHETHER OR NOT EITHER OF
23 THE INDIVIDUALS FROM WHOM YOU RECEIVED KNOWN SAMPLES COULD OR
24 COULDN’T BE THE DONOR OF THAT PARTICULAR STAIN?
25 A. THE S. T. R. PROFILE, AGAIN, THE COMPLETE S. T. R.
26 PROFILE FROM SAMPLE 12 MATCHES DANIELLE VAN DAM, AND MR.
27 WESTERFIELD CAN BE EXCLUDED AS A SOURCE OF THAT ITEM.
28 Q. NOW, WITH REGARD TO — I’D LIKE TO FOCUS YOUR
6468
1 ATTENTION ON BOTH ITEM NO. 77, THE HAIR FROM THE SINK DRAIN, AS
2 WELL AS ITEM NO. 84, STAIN FROM THE CARPET CUTTING.
3 ONCE YOU OBTAINED PROFILES THAT YOU’VE CONCLUDED
4 ARE D. N. A. THAT COULD HAVE COME FROM DANIELLE VAN DAM, DID YOU
5 MAKE ESTIMATES OF THE RARITY OF THOSE PROFILES SHARED BY THE
6 EVIDENCE, NO. 77 AND NO. 84 AND DANIELLE VAN DAM.
7 A. YES, WE DID.
8 Q. HOW DO YOU GO ABOUT DOING THAT?
9 A. IN GENERAL, IF YOU HAVE A COMPLETE S. T. R. PROFILE
10 WHICH MATCHES AN INDIVIDUAL, THEN YOU LOOK AT EITHER ONE OF THE
11 PROFILES IN TERMS OF CALCULATING THE FREQUENCY OR THE RELATIVE
12 RARITY OF THAT PROFILE IN THE POPULATION.
13 IF YOU HAVE A PARTIAL PROFILE, YOU USE THE PARTIAL
14 PROFILE TO CALCULATE THE FREQUENCY, NOT THE COMPLETE PROFILE.
15 Q. IS THAT TO MAKE SURE YOU’RE NOT OVERSTATING THE
16 RARITY OF A MATCH?
17 A. THAT IS CORRECT.
18 Q. IF YOU MIX UP THE CALCULATION IN TERMS OF THE
19 ESTIMATES OF RARITY, WITH REGARD TO NO. 77, THE SINK DRAIN, IS
20 THAT PROFILE SHARED FROM THAT EVIDENCE AND DANIELLE VAN DAM?
21 A. YES.
22 Q. ALL RIGHT.
23 DO YOU BREAK THEM DOWN INTO MAJOR POPULATION GROUPS
24 WHEN YOU MAKE THOSE ESTIMATES?
25 A. YES. WE LOOK AT THE RELATIVE RARITY OR FREQUENCY
26 IN THE CAUCASIAN POPULATION, THE AFRICAN-AMERICAN POPULATION AND
27 TWO SOURCES OF HISPANIC POPULATIONS.
28 Q. WHAT ARE THE TWO SOURCES, ARE THEY BROKEN DOWN?
6469
1 A. THEY’RE BROKEN DOWN IN SOUTHWEST AND SOUTHEAST.
2 Q. IN THOSE PORTIONS OF THE UNITED STATES?
3 A. YES.
4 Q. DID YOU CALCULATE AN ESTIMATE OF THE RELATIVE
5 RARITY, THAT IS, THE APPROXIMATE STATISTICAL ESTIMATE OF THE
6 CHANCES OF SELECTING A PERSON AT RANDOM, AND LET’S START WITH
7 THE CAUCASIAN POPULATION, OF SELECTING SOMEONE WHO BY
8 COINCIDENCE WOULD HAVE THE SAME D. N. A. PROFILE FOUND IN ITEM
9 NO. 7, THE HAIR FROM THE SINK DRAIN AND DANIELLE VAN DAM?
10 A. YES.
11 Q. TELL US WHAT THAT WAS.
12 A. IT’S ONE IN 25 QUADRILLION.
13 Q. IS THAT A 25 WITH A CERTAIN NUMBER OF ZEROS AFTER
14 IT?
15 A. THAT’S ONE OR — EXCUSE ME — 2.5 TIMES TEN TO THE
16 16TH.
17 Q. OKAY. DOES THAT TELL US HOW MANY ZEROS?
18 A. YES, IT DOES.
19 Q. HOW MANY?
20 A. SIXTEEN. ACTUALLY, — EXCUSE ME — 15 ZEROS PLUS
21 THE FIVE.
22 Q. DID YOU MAKE A SIMILAR ESTIMATE OF THE RARITY OF
23 THAT PROFILE IN THE AFRICAN-AMERICAN POPULATION?
24 A. YES, WE DID.
25 Q. WHAT WAS THAT?
26 A. 340 QUADRILLION OR 3.4 TIMES TEN TO THE 17TH.
27 Q. DID YOU MAKE A SIMILAR ESTIMATE IN THE SOUTHWEST
28 HISPANIC POPULATION?
6470
1 A. YES, WE DID, 1.2 QUINTILLION OR 1.2 TIMES TEN TO
2 THE 18TH.
3 Q. THAT WOULD BE HOW MANY ZEROS AFTER THE — I THINK
4 IT WAS 1.2?
5 A. IT WOULD BE 17 ZEROS AFTER THE TWO.
6 Q. AND LASTLY DID YOU MAKE AN ESTIMATE IN THE
7 POPULATION OF SOUTHEAST HISPANICS?
8 A. YES, WE DID. AND THAT WAS 200 QUADRILLION OR TWO
9 TIMES TEN TO THE 17TH.
10 Q. DID YOU MAKE A SIMILAR ESTIMATE OF THE RARITY OF
11 THE MATCHING PROFILES BETWEEN DANIELLE VAN DAM AND THE CARPET
12 CUTTING, ITEM NO. 84?
13 A. YES, WE DID.
14 Q. IN THE SAME FOUR MAJOR POPULATION GROUPS?
15 A. YES, WE DID.
16 Q. WITH RESPECT TO THE CAUCASIAN POPULATION, CAN YOU
17 TELL US THE APPROXIMATE CHANCES OR ESTIMATE —
18 A. YES.
19 Q. — OF THE LIKELIHOOD OF PICKING SOMEONE AT RANDOM?
20 WE’LL START WITH THE CAUCASIAN POPULATION, SOMEONE WHO, BY
21 COINCIDENCE, MATCHES THE D. N. A. TYPES FOUND IN THE CARPET
22 STAIN AND IN DANIELLE VAN DAM?
23 A. BECAUSE THIS WAS A COMPLETE S. T. R. PROFILE THE
24 NUMBERS ARE SLIGHTLY HIGHER BECAUSE AN ADDITIONAL LOCATION WAS
25 ADDED INTO THE FREQUENCY ESTIMATES.
26 Q. BY HIGHER YOU MEAN WEAR?
27 A. YES.
28 Q. GO AHEAD.
6471
1 A. THE NUMBER FOR THE CAUCASIAN POPULATION IS 660
2 QUADRILLION WHICH IS 6.6 TIMES TEN TO THE 17TH.
3 Q. DID YOU MAKE A SIMILAR COMPARISON IN THE
4 AFRICAN-AMERICAN POPULATION?
5 A. IN THE AFRICAN-AMERICAN POPULATION, 14 QUINTILLION
6 OR 1.4 TIMES TEN TO THE 19TH.
7 Q. SOUTHWEST HISPANIC?
8 A. THIRTY-ONE QUINTILLION OR 3.1 TIMES TEN TO THE
9 19TH.
10 Q. AND LASTLY SOUTHERN HISPANICS?
11 A. 52 QUINTILLION, OR 5.2 TIMES TEN TO THE 18TH.
12 MR. CLARKE: YOUR HONOR, I’VE HAD A BOARD PREVIOUSLY
13 MARKED AS EXHIBIT 151, IT CAN BE DESCRIBED AS LABELED AT THE TOP
14 “D. N. A. TESTING RESULTS BODE.”
15 (MARKED FOR ID: = TRIAL EX. 151 – DNA TEST RESULTS BODE)
16 Q. DOCTOR HOLLAND, I AM GOING TO ASK YOU TO JUST TAKE
17 A LOOK AT EXHIBIT 151 AND FIRST ASK YOU IF YOU’VE HAD A CHANCE
18 TO TAKE A LOOK AT THIS EXHIBIT BEFORE COMING TO COURT THIS
19 MORNING.
20 A. YES, I HAVE.
21 Q. WHAT DOES THIS EXHIBIT SHOW?
22 A. THIS EXHIBIT SHOWS THE S. T. R. RESULTS FROM ITEMS
23 106, 84, 77 AND 95.
24 ITEM 107 IS THE REFERENCE OR COMPARISON SAMPLE FOR
25 DANIELLE VAN DAM. ITEM 95 IS THE REFERENCE OR COMPARISON SOURCE
26 FOR DAVID WESTERFIELD.
27 ITEM 84 IS THE BLOODSTAIN ON THE CARPET FROM THE R.
28 V. AND;
6472
1 NO. 77 IS THE HAIR FROM THE R. V. BATH SINK. AND
2 THAT IS A HAIR ROOT, AS WE TALKED ABOUT BEFORE, YOU GET RESULTS
3 FOR S. T. R.S IN THE HAIR ROOT.
4 Q. DOES THIS PARTICULAR EXHIBIT 151 DEPICT EACH OF THE
5 LOCATIONS OF D. N. A., NUCLEAR D. N. A. TESTED BY YOUR
6 LABORATORY WITH THE RESULTS AT EACH OF THOSE LOCATIONS FOR EACH
7 OF THE ITEMS YOU JUST DESCRIBED?
8 A. YES, IT DOES.
9 Q. IN PARTICULAR, OFF TO THE RIGHT ARE THE UNDER
10 WHAT’S LABELED “FREQUENCY” WE SEE “ONE IN,” AND LET’S USE THE
11 EXAMPLE OF THE BLOOD FROM THE R. V. CARPET. ONE IN 60, I THINK
12 YOU SAID, QUADRILLION; IS THAT CORRECT?
13 A. YES, 660 QUADRILLION.
14 Q. ARE YOU AWARE OF APPROXIMATELY HOW MANY PEOPLE ARE
15 ON THE EARTH?
16 A. APPROXIMATELY SIX BILLION.
17 Q. WITH REGARD TO THAT NUMBER, 660 QUADRILLION, DOES
18 THAT REPRESENT THE POPULATION GROUP IN WHICH THIS PROFILE WOULD
19 BE EXPECTED TO BE FOUND THE MOST COMMONLY AS OPPOSED TO THE
20 RAREST?
21 A. IT REPRESENTS THE FREQUENCY IN THE CAUCASIAN
22 POPULATION. WHEN YOU ASSESS THE RELATIVE FREQUENCIES ACROSS ALL
23 THREE OTHER POPULATIONS, THEY ARE RARER. SO IT’S THE MOST
24 CONSERVATIVELY FREQUENCY ESTIMATE FOR BOTH PROFILES.
25 Q. WHAT ABOUT ITEM NO. 77, THE HAIR FROM THE R. V.
26 BATH SINK, THAT FREQUENCY APPEARS TO BE WHAT, ONE IN 25
27 QUADRILLION?
28 A. THAT’S CORRECT.
6473
1 Q. AGAIN, IF I CAN ASK YOU THE SAME QUESTION, IS THAT
2 ESTIMATE THE MOST COMMON OF THE ESTIMATES THAT YOU WERE ABLE TO
3 CALCULATE IN THIS CASE FOR ALL FOUR POPULATION GROUPS?
4 A. YES, IT IS. IT’S THE MOST COMMON, THEREFORE, IT’S
5 THE MOST CONSERVATIVE ESTIMATE.
6 Q. WHAT I AM GOING TO ASK YOU TO DO, I THINK WE HAVE A
7 POINTER THERE. WE SEE OBVIOUSLY A DIFFERENCE IN THE NUMBERS,
8 THOSE FREQUENCY ESTIMATES FOR BOTH THE BLOOD FROM THE R. V.
9 CARPET AND THE HAIR FROM THE SINK, CORRECT?
10 A. THAT’S CORRECT.
11 Q. AND I BELIEVE YOU EARLIER DESCRIBED THAT THE
12 PROFILE FROM THE SINK, YOU WERE ONLY ABLE TO GET RESULTS AT 12
13 OF THE 13 MARKERS; IS THAT CORRECT?
14 A. THAT’S CORRECT.
15 Q. CAN YOU DEMONSTRATE TO US WHAT YOU ARE TALKING
16 ABOUT?
17 A. SURE. BESIDES THIS MARKER HERE, WHICH IS THE
18 GENDER DETERMINATION MARKER, THERE ARE 13 OTHER LOCATIONS WE
19 LOOK AT. AND FOR EXAMPLE, 84, WHICH AGAIN IS THE BLOODSTAIN
20 FROM THE R. V. CARPET, YOU CAN SEE THAT AT EACH ONE OF THE 13
21 LOCATIONS WE WERE ABLE TO OBTAIN A RESULT; AND THEREFORE, THE
22 FREQUENCY AND THE POPULATION OF THAT PROFILE WOULD BE RARER
23 THAN, FOR EXAMPLE 77, THE HAIR ROOT FROM THE BATH SINK FROM
24 WHICH WE HAVE RESULTS FROM 12 OF THE 13. THE ONE THAT WE ARE
25 MISSING IS D18-S51, SO THE PROFILE IS SIMPLY A LITTLE MORE
26 COMMON IN THE POPULATION.
27 Q. LET’S TALK ABOUT NOT GETTING A RESULT AT A
28 PARTICULAR D. N. A. LOCATION OR GENETIC MARKER. HOW CAN THAT
6474
1 HAPPEN?
2 A. IN THIS PARTICULAR CASE, D18, WHICH IS JUST ONE OF
3 THE 13 LOCATIONS IN THE HUMAN GENOME, IS A LARGER PIECE OF D. N.
4 A. AND AS D. N. A. DEGRADES, THE LARGER PIECES OF D. N. A. WILL
5 DEGRADE FIRST, AND SO D18 IS A LARGER PIECE OF D. N. A.
6 Q. FIRST OF ALL, WAS THIS SAMPLE FROM THE BATH SINK
7 HAIR, WAS THAT A HAIR ROOT THAT WAS BEING TESTED FOR S. T. R. D.
8 N. A.?
9 A. THAT’S CORRECT.
10 Q. IS THAT SURPRISING TO YOU IN YOUR EXPERIENCE WITH
11 HAIR ROOTS OR NOT?
12 A. IT IS NOT SURPRISING. THERE’S SIMPLY LESS CELLULAR
13 MATERIAL, AND YOU COULD HAVE MORE DEGREDATION THAN A HAIR ROOT.
14 I’M NOT SURE THAT YOU COULD HAVE ANY IMMEDIATE CORRELATION TO
15 THAT BUT IN GENERAL.
16 Q. ARE YOU FAMILIAR WITH THE TERM “MATCH”?
17 A. YES.
18 Q. IS THIS AN EXAMPLE WHERE SAMPLES MATCH?
19 A. YES, IT IS.
20 Q. AND I’M REFERRING TO CARPET CUTTING AND THE HAIR IN
21 THE SINK TO DANIELLE VAN DAM?
22 A. THAT’S CORRECT.
23 MR. FELDMAN: OBJECTION, IMPROPER.
24 THE COURT: OVERRULED.
25
26 BY MR. CLARKE:
27 Q. DOCTOR, NOW —
28 MR. FELDMAN: EXCUSE ME. OBJECTION, MOTION TO STRIKE.
6475
1 THE COURT: DULY NOTED. OVERRULED.
2
3 BY MR. CLARKE:
4 Q. DOCTOR, MITOCHONDRIAL D. N. A., I’D LIKE TO ASK YOU
5 IF YOU PERFORMED THAT TYPE OF TESTING ON HAIRS IN THIS CASE?
6 A. YES, WE DID.
7 Q. DID YOU, IN FACT, RECEIVE A NUMBER OF HAIRS FOR
8 MITOCHONDRIAL D. N. A. TESTING?
9 A. YES, WE DID.
10 Q. I’D LIKE YOU TO SHOW YOU AN EXHIBIT, IF I COULD,
11 THAT WAS MARKED PREVIOUSLY AS EXHIBIT 123.
12 HAVE YOU HAD A CHANCE TO LOOK AT THE CONTENTS OF
13 THIS BOARD?
14 A. YES.
15 Q. PRIOR TO RIGHT NOW?
16 A. YES, I HAVE.
17 Q. WHAT DOES THIS BOARD SHOW? IT’S LABELED AT THE TOP
18 MITOCHONDRIAL D. N. A., BRENDA VAN DAM PLUS CHILDREN?
19 A. AS WE WERE TALKING BEFORE ABOUT S. T. R. PROFILES
20 IN 13 DIFFERENT LOCATIONS, WE ACTUALLY LOOK AT APPROXIMATELY 600
21 LOCATIONS FOR MITOCHONDRIAL D. N. A. AND WE DETERMINE THE D. N.
22 A. SEQUENCE OF THE PIECE OF D. N. A. WHICH IS DIFFERENT THAN S.
23 T. R. ANALYSIS.
24 IN THIS CASE WHAT WE’RE LOOKING FOR ARE DIFFERENCES
25 FROM A CONSENSUS OR REFERENCE SEQUENCE THAT WE HAVE THAT WAS THE
26 FIRST HUMAN SEQUENCE THAT WAS PUBLISHED IN 1981. SO THE PROFILE
27 YOU SEE HERE, WHEN YOU LOOK ACROSS THE 600 DIFFERENT POSITIONS,
28 THESE NINE DIFFERENT POSITIONS VARY FROM THAT REFERENCE
6476
1 SEQUENCE. AND THE WAY WE REPORT OUT A MITOCHONDRIAL D. N. A.
2 PROFILE, DIFFERENT FROM, SAY, A 17, 19 AT THE LOCATION D-3 FOR
3 AN S. T. R. PROFILE, IS TO REPORT THE SEQUENCE DIFFERENCE AT
4 EACH OF THOSE LOCATIONS.
5 SO AT POSITION 16126, IN THE SEQUENCE THE
6 DIFFERENCE IS A “C”, WHICH IS ONE OF THE FOUR LETTERS IN THE
7 GENETIC, “G”, “D” AND “C”.
8 Q. WITH REGARD TO THE F. B. I., ARE YOU FAMILIAR WITH
9 THEIR METHODS FOR MITOCHONDRIAL D. N. A. TYPING OF HAIRS AND
10 KNOWN SAMPLES?
11 A. YES, I AM.
12 Q. HOW ARE YOU FAMILIAR WITH THEM?
13 A. I HAVE READ THEM AND I’VE ALSO BEEN PART OF
14 ASSISTING THEM TO DEVELOP THEM.
15 Q. IN OTHER WORDS, YOU ACTUALLY HELP THEM DEVELOP
16 THERE TESTING TECHNOLOGY?
17 A. THAT’S CORRECT.
18 Q. WITH REGARD TO THIS BOARD, EXHIBIT 123, WHAT I’M
19 GOING TO ASK YOU IS TO ASSUME THAT THAT IS, IN FACT, THE ACTUAL
20 SEQUENCE. THAT IS, MITOCHONDRIAL D. N. A. SEQUENCE OBTAINED BY
21 THE FEDERAL BUREAU OF INVESTIGATION IN THE TESTING OF KNOWN
22 SWABS TAKEN FROM BRENDA VAN DAM, ALL RIGHT?
23 A. YES.
24 Q. FIRST OF ALL, WITH RESPECT TO MITOCHONDRIAL D. N.
25 A., HOW DO CHILDREN HAVE — OR DO THEY HAVE THE SAME OR
26 DIFFERENT MITOCHONDRIAL D. N. A. SEQUENCE THAN THEIR MOTHER?
27 A. AGAIN, MITOCHONDRIAL D. N. A. IS MATERNALLY
28 INHERITED, SO YOU WILL BE THE SAME AS YOUR MOTHER AND AS YOUR
6477
1 SIBLINGS.
2 Q. IS THAT ONE OF THE BENEFITS OF MITOCHONDRIAL D. N.
3 A. PARTICULARLY WHEN YOU MAKE YOUR ATTEMPTS TO IDENTIFY VICTIMS
4 OF WAR AND DISASTERS?
5 A. YES, IT IS.
6 Q. WHY IS THAT?
7 A. FOR CASES LIKE THE WORLD WAR II REMAINS WHERE YOU
8 DON’T HAVE IMMEDIATE RELATIVES, YOU CAN USE DISTANTLY RELATED
9 MATERNAL RELATIVES.
10 Q. BECAUSE THEY HAVE THE SAME MITOCHONDRIAL D. N. A.
11 TYPES?
12 A. THAT’S CORRECT.
13 Q. NOW, DID YOU, IN FACT, CONDUCT MITOCHONDRIAL D. N.
14 A. TESTING ON A NUMBER OF HAIR SAMPLES IN THIS CASE?
15 A. YES, WE DID.
16 Q. DID YOU HAVE THE OPPORTUNITY AND DID YOU OBTAIN
17 RESULTS FROM A NUMBER OF THOSE SAMPLES?
18 A. YES, WE DID.
19 Q. WAS IT THE CASE THAT SOME OF THE SAMPLES DID NOT
20 HAVE ENOUGH D. N. A. FOR MITOCHONDRIAL D. N. A. TESTING RESULTS
21 TO BE OBTAINED?
22 A. I BELIEVE THAT’S CORRECT.
23 Q. HAVE YOU HAD THE OPPORTUNITY TO COMPARE THE RESULTS
24 FROM THE HAIR THAT DID PRODUCE SUFFICIENT RESULTS TO THIS KNOWN
25 SEQUENCE AS REFLECTED IN EXHIBIT 123?
26 A. YES, I HAVE.
27 Q. I’D LIKE TO NOW SHOW YOU A BOARD THAT’S BEEN
28 PREVIOUSLY MARKED — YES, BEEN PREVIOUSLY MARKED AS EXHIBIT 124.
6478
1 HAVE YOU HAD A CHANCE TO LOOK AT THIS BOARD, OR AT LEAST A
2 SMALLER VERSION OF IT, PRIOR TO YOUR TESTIMONY TODAY?
3 A. YES, I HAVE.
4 Q. DOES THIS BOARD REFLECT THOSE SAMPLES — ACTUALLY
5 LOOK BACK UP FOR A MOMENT.
6 BOARD 124 APPEARS TO HAVE LABELED “F. B. I. SINGLE
7 CELL MITOCHONDRIAL D. N. A. TESTING,” IS THAT RIGHT?
8 A. YES.
9 Q. THAT WAS NOT SOMETHING YOUR LABORATORY TESTED?
10 A. NO, WE DID NOT.
11 Q. THE LOWER WHAT’S CALLED BODE MITOCHONDRIAL TESTING
12 RESULTS HAS A NUMBER OF HAIR SAMPLES, CORRECT?
13 A. THAT’S CORRECT.
14 Q. IN FACT, IT LISTS FROM TOP TO BOTTOM IN THE FIRST
15 COLUMN BODE NUMBER, IS THAT RIGHT?
16 A. THAT’S CORRECT.
17 Q. IS THAT THE NUMBER ASSIGNED TO THAT PARTICULAR
18 EVIDENCE ITEM BY YOUR LABORATORY?
19 A. YES, IT IS.
20 Q. TO THE RIGHT OF THAT IS A COLUMN LABELED “ITEM
21 NUMBER.” TO YOUR KNOWLEDGE, IS THAT LAW ENFORCEMENT NUMBERING
22 OF THESE VARIOUS HAIRS?
23 A. YES, IT IS. THE ONLY ONES THAT WERE DIFFERENT FROM
24 OUR CHAIN OF CUSTODY WERE SAMPLE ONE AND SAMPLE TEN. WE HAD A
25 SLIGHTLY DIFFERENT NUMBERING SYSTEM.
26 Q. ALL RIGHT.
27 CAN WE, IN FACT — AND LET’S TURN TO — AND BY
28 SAMPLE ONE, THAT’S YOUR BODE NUMBER?
6479
1 A. YES. SAMPLES 1-A, “B” AND “C”. THE REASON THERE’S
2 “A”, “B” AND “C” IS WE RECEIVED THREE HAIRS FOR ITEM ONE. AND
3 OUR NUMBERING SYSTEM, I BELIEVE IT WAS T. E.-T. D. 11 WAS THE
4 NUMBERING SYSTEM.
5 Q. FOR THE ITEMS THAT BODE ASSIGNED THE NUMBERS 1-A,
6 1B AND 1C?
7 A. THAT’S CORRECT.
8 Q. THAT ARE IDENTIFIED AS THREE HAIRS FROM LINT?
9 A. THAT’S CORRECT. I CAN DEFER TO MY NOTES TO MAKE
10 SURE.
11 Q. SURE?
12 A. I DON’T HAVE THE NOTATION FROM LINT BUT I BELIEVE I
13 RECALL THAT.
14 Q. ALL RIGHT.
15 BUT IN ANY EVENT, THE ITEM 13A OR I BELIEVE YOU
16 SAID T. E.-T. E. 11 —
17 A. T. E.- T. D. 11.
18 Q. I THINK YOU SAID THERE WAS ONE OTHER ITEM NUMBER,
19 I’M SORRY.
20 A. YES. AN ITEM TEN, THE NUMBERING SYSTEM WAS T. E.-
21 T. D. 9.
22 Q. AND THAT PARTICULAR ITEM, I’M SORRY, IS AT THE VERY
23 BOTTOM OF EXHIBIT 124; IS THAT CORRECT?
24 A. THE BOTTOM LEFT HAND CORNER, THAT’S CORRECT.
25 Q. NOW, WITH REGARD TO THIS BOARD, DOES THIS REFLECT
26 RESULTS THAT WERE TESTED BY YOUR LABORATORY THAT YOU’VE
27 DETERMINED MATCHED THE SAMPLE OR SEQUENCES FROM A KNOWN SAMPLE
28 OF BRENDA VAN DAM, IS THAT RIGHT?
6480
1 A. THAT’S CORRECT.
2 DOES THAT MEAN THAT THOSE SAMPLES ALSO WOULD MATCH
3 BIOLOGICAL CHILDREN OF BRENDA VAN DAM?
4 A. THAT’S CORRECT.
5 Q. IN YOUR TESTING DID YOU ALSO HAVE HAIRS THAT YOU
6 WERE UNABLE TO GET ANY MITOCHONDRIAL D. N. A. RESULT FROM?
7 A. THAT’S CORRECT.
8 Q. DID YOU ALSO HAVE HAIRS THAT YOU OBTAINED
9 MITOCHONDRIAL TESTING RESULTS FROM BUT THAT DO NOT MATCH THE
10 KNOWN SAMPLE OF BRENDA VAN DAM?
11 A. THAT’S CORRECT.
12 Q. ARE ALL OF THOSE — FIRST OF ALL, ARE ALL OF YOUR
13 RESULTS DETAILED IN YOUR REPORTS AND NOTES OF YOUR TESTING?
14 A. YES, THEY ARE.
15 Q. TO YOUR KNOWLEDGE, HAVE THOSE BEEN PROVIDED TO MY
16 OFFICE FOR PURPOSES OF PROVIDING TO THE DEFENSE AS WELL?
17 A. YES, THEY HAVE BEEN.
18 Q. I’D LIKE TO GO THROUGH — IF YOU WOULD, LET’S START
19 WITH YOUR BODE NO. 30A, IF YOU WOULD DESCRIBE THE RESULTS YOU
20 OBTAINED FOR EACH OF THESE ITEMS, AND THEN WE’LL TALK ABOUT AT
21 THE END OF THE DESCRIPTIONS THE LAST COLUMN LABELED MATCHING
22 PROFILES AND DATABASE, ALL RIGHT?
23 A. FOR ITEM 30A, WHICH IS ITEM 5, HAIR FROM THE
24 WESTERFIELD WASHING MACHINE; BEDDING, ITEM 32 OR 71-H; HAIR FROM
25 THE WESTERFIELD DRYER, BOXER SHORTS; ITEM NO. 33A 9A-H, HAIR
26 FROM THE WESTERFIELD MASTER BEDROOM, BED PILLOWCASE, 34A OR
27 9C-3.1, HAIR FROM THE MASTER BEDROOM FITTED SHEET; 35A OR 9C-H,
28 HAIR FROM THE WESTERFIELD MASTER BEDROOM FITTED SHEET; 36-A,
6481
1 9D-H, AGAIN, HAIR FROM THE WESTERFIELD MASTER BEDROOM FLAT
2 SHEET; 13A, 9D-2 FROM THE THE WESTERFIELD MASTER BEDROOM FLAT
3 SHEET, AND; 38A, 9D-4, HAIR FROM THE WESTERFIELD MASTER BEDROOM
4 FLAT SHEET. ALL OF THOSE HAIRS THE MITOCHONDRIAL D. N. A.
5 PROFILE MATCHED THE REFERENCE SOURCE FOR DANIELLE VAN DAM. AND
6 ALSO SAMPLES 1A, 1B AND 1C, HAIR FROM THE WESTERFIELD GARAGE
7 TRASH LINT, AND SAMPLE 10, HAIR FROM THE WESTERFIELD MOTOR HOME,
8 ALL CARPET, AGAIN, THOSE FOUR SAMPLES I PROVIDED MATCHED THE
9 REFERENCE SOURCE FOR DANIELLE VAN DAM.
10 Q. WHICH WOULD SUGGEST HERE THAT IS THE SEQUENCE OF
11 HER MOTHER, BRENDA VAN DAM?
12 A. THAT’S CORRECT. I CANNOT EXCLUDE DANIELLE VAN DAM
13 AS THE SOURCE OF THAT HAIR.
14 Q. OR ANY BROTHERS THAT SHE MAY HAVE?
15 A. ANY SIBLINGS OR ANY MATERNAL RELATIVES THAT SHE MAY
16 HAVE.
17 Q. NOW, IN TERMS OF MITOCHONDRIAL D. N. A., THIS JURY
18 HAS PREVIOUSLY HEARD THAT STATISTICAL ESTIMATES ARE PERFORMED
19 DIFFERENTLY FOR MITOCHONDRIAL D. N. A. RESULTS; IS THAT CORRECT?
20 A. THAT’S CORRECT.
21 Q. WHY IS THAT?
22 A. WELL, MAINLY IT’S BECAUSE OF THE INHERITANCE
23 PATTERN. WE INHERIT OUR MITOCHONDRIAL D. N. A. FROM OUR MOTHER,
24 SO YOU’RE LOOKING ACTUALLY AT THE FREQUENCY OF MATERNAL PROFILE
25 IN THE POPULATION.
26 SO WHAT WE DO IS TAKE INDIVIDUALS IN THE GENERAL
27 POPULATION GROUPS, WE OBTAIN THEIR MITOCHONDRIAL D. N. A.
28 PROFILE, WE PUT IT IN THE DATABASES, AND THEN WE COMPARE THE
6482
1 SEQUENCE FROM A CASE TO THAT DATABASE TO DETERMINE THE RELATIVE
2 RARITY OF THAT PROFILE IN THE POPULATION.
3 Q. ARE THERE PARTICULAR GROUPS, RACIAL AND/OR ETHNIC
4 GROUPS THAT YOU USE IN YOUR DATABASE TO MAKE THESE COMPARISONS
5 TO?
6 A. YES. IT’S A COMBINATION OF CAUCASIAN POPULATIONS,
7 AFRICAN-AMERICAN, AFRICAN POPULATIONS, HISPANIC, ASIAN, EVEN
8 NATIVE AMERICAN POPULATIONS.
9 Q. WHAT ARE THE TOTAL NUMBER OF INDIVIDUALS IN YOUR
10 DATABASE THAT YOU MAKE COMPARISONS TO INSTEAD OF EVIDENCE
11 PROFILES THAT MATCH KNOWN INDIVIDUALS?
12 A. OUR DATABASE HAS 4,142 PROFILES.
13 Q. DID YOUR MAKE A COMPARISON BETWEEN THE ACTUAL D. N.
14 A. TYPES, MITOCHONDRIAL D. N. A. TYPES, SHARED BY ALL OF THE
15 EVIDENCE ITEMS FOUND ON EXHIBIT 124, THAT WAS ALSO CONSISTENT
16 WITH THE SAMPLE FROM BRENDA VAN DAM, AND MAKE A COMPARISON OF
17 THAT SEQUENCE TO THE INDIVIDUALS IN YOUR DATABASE TO SEE IF YOU
18 HAVE EVER OBSERVED THAT SEQUENCE SHARED BY THAT EVIDENCE AND
19 BRENDA VAN DAM BEFORE?
20 A. YES, WE DID.
21 Q. WITH WHAT RESULTS?
22 A. WE WERE UNABLE TO FIND ANOTHER SEQUENCE IN THE
23 DATABASE WITH THAT SAME PROFILE.
24 Q. SO IS IT THE CASE IN YOUR DATABASE THAT YOU’VE
25 NEVER SEEN THE TYPE SHARED BY THIS EVIDENCE AND BRENDA VAN DAM
26 AND HER SIBLINGS BEFORE?
27 A. THAT’S CORRECT.
28 MR. CLARKE: ALL RIGHT. THANK YOU.
6483
1 I DON’T HAVE ANY MORE QUESTIONS.
2 THE COURT: CROSS-EXAMINATION.
3
4 CROSS-EXAMINATION +
5 BY MR. FELDMAN:
6 Q. SIR, GOOD MORNING.
7 A. GOOD MORNING.
8 Q. WERE YOU PROVIDED WITH DARK BROWN HAIRS FROM THE
9 DISTRICT ATTORNEY’S OFFICE?
10 A. I DON’T BELIEVE SO.
11 Q. SO YOU NEVER HAD THE OPPORTUNITY TO RUN TWO DARK
12 BROWN HAIRS THROUGH I THOUGHT YOU CALLED IT A CONVICTED OFFENDER
13 DATABASE, IS THAT WHAT YOU SAID ORIGINALLY?
14 A. I’M NOT SURE I UNDERSTAND THE QUESTION, I’M SORRY.
15 Q. WHEN MR. CLARKE STARTED HE ASKED YOU ABOUT CERTAIN
16 TYPES OF DATABASES AND I THINK YOU TALKED ABOUT SOMETHING CALLED
17 A CONVICTED OFFENDER DATABASE?
18 A. AS ONE OF THE PROFILES WE DO FOR DATABASING.
19 Q. PLEASE EXPLAIN.
20 A. AN INDIVIDUAL IS CONVICTED OF A CRIME. HE OR SHE
21 WOULD PROBABLY PROVIDE A BLOOD SAMPLE OR ORAL SWAB SAMPLE. THAT
22 SAMPLE WOULD BE PROFILED AND PUT INTO A DATABASE.
23 Q. SO I’VE GOT A DATABASE THAT CONSISTS OF CONVICTED
24 INDIVIDUALS, IS THAT RIGHT?
25 A. THAT’S RIGHT.
26 Q. BUT YOU DON’T KNOW WHETHER THOSE CONVICTED
27 INDIVIDUALS ARE IN JAIL OR OUT?
28 A. THAT’S CORRECT.
6484
1 Q. YOU WERE NOT PROVIDED THEN TWO DARK BROWNS TO
2 COMPARE AGAINST THAT PARTICULAR DATABASE, IS THAT RIGHT?
3 MR. CLARKE: OBJECTION, RELEVANCE, YOUR HONOR.
4 THE COURT: OVERRULED. YOU MAY ANSWER.
5 THE WITNESS: NOT TO MY KNOWLEDGE, NO.
6
7 BY MR. FELDMAN:
8 Q. WELL, IF SOMETHING WAS PROVIDED TO YOUR LABORATORY,
9 WOULD YOU HAVE KNOWLEDGE OF IT, SIR?
10 A. WELL, THE HAIRS WERE DIFFERENT SHADES SO I WAS TO
11 GO THROUGH MY NOTES AND MAKE SURE THERE WEREN’T ANY DARK BROWN
12 HAIRS. I DON’T BELIEVE THEY WERE.
13 Q. IF YOU FEEL — I MEAN, THE IMPORTANCE TO ME IS JUST
14 THAT YOUR ANSWER IS ACCURATE. IF YOU HAVE AN INDEPENDENT
15 RECOLLECTION IT’S NOT THERE, FINE. YOU CAN LOOK AT YOUR NOTES,
16 NO PROBLEM.
17 A. IF YOU HAVE A NUMBER?
18 Q. 106.
19 A. NO, I DON’T HAVE AN ITEM NO. 106 HERE.
20 Q. SIR, IS THERE A PARENT COMPANY FOR BODE?
21 A. YES, THERE IS.
22 Q. WHAT’S THE PARENT COMPANY CALLED?
23 A. CHOICE POINT.
24 Q. CHOICE POINT?
25 A. CHOICE POINT, YES.
26 Q. WHO IS THE DIRECTOR?
27 A. THE CEO?
28 Q. YES.
6485
1 A. IS DERRICK SMITH.
2 Q. HOW MUCH DO YOU CHARGE FOR YOUR SERVICES?
3 A. FOR D. N. A. TESTING?
4 Q. YES.
5 A. FOR S. T. R. ANALYSIS WE CHARGE $945 PER SAMPLE,
6 AND FOR MITOCHONDRIAL D. N. A. TESTING FOR HAIRS WE CHARGE
7 $3,000 PER SAMPLE, AND FOR REFERENCE SOURCES, LIKE BLOOD OR ORAL
8 SWABS, WE CHARGE $1500 PER SAMPLE.
9 Q. AND WHAT DO YOU CHARGE FOR EXPEDITED SAMPLES?
10 A. WE CHARGE A 50 PERCENT PREMIUM IF THE SAMPLES ARE
11 EXPEDITED.
12 Q. SO HOW MUCH DID YOUR WORK COST THE D. A.’S OFFICE
13 SO FAR?
14 A. I WOULD NOT BE ABLE TO TELL YOU THAT. I’D HAVE TO
15 CALCULATE IT. I DON’T KNOW FOR SURE.
16 Q. SO IF I GAVE YOU THE NUMBER $45,000, DOES THAT
17 SOUND APPROXIMATELY WHAT YOU’VE CHARGED SO FAR?
18 A. I THINK IT’S PROBABLY MORE THAN THAT.
19 Q. AH, AND WOULD THAT INCLUDE YOUR TRIAL TESTIMONY OR
20 DO YOU CHARGE A FEE FOR YOUR SERVICES FOR TESTIFYING?
21 A. YES. WE CHARGE A $1700 A DAY TESTIMONY FEE.
22 Q. HOW ABOUT TRAVEL TIME?
23 A. AND TRAVEL EXPENSES.
24 Q. SO HOW MUCH HAVE YOU CHARGED SO FAR, DO YOU THINK?
25 A. ON TESTIMONY AND TRAVEL?
26 Q. YES, SIR.
27 A. PROBABLY APPROXIMATELY $4,000.
28 Q. IN ADDITION TO THE $45,000 OR MORE DOLLARS?
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1 A. THAT’S CORRECT.
2 Q. WITH REGARD TO THE HAIRS, YOU WERE PROVIDED HAIRS
3 THAT ALLEGEDLY SOURCED FROM THE GARAGE. THAT WOULD BE ITEM
4 23B-H — IS THAT CORRECT, SIR? IT’S YOUR BODE NUMBER I THINK
5 40A?
6 A. 48?
7 Q. 40A AS IN APPLE?
8 A. OH, 40A, YES. THAT’S ITEM 23B-H.
9 Q. “B”-AS IN BOY-H?
10 A. “B” AS IN BOY.
11 Q. YES.
12 YOU WERE ABLE TO OBTAIN A FULL MITOCHONDRIAL D. N.
13 A. PROFILE; IS THAT CORRECT, SIR?
14 A. THAT IS CORRECT.
15 Q. YOU — THIS WAS A HAIR THAT WAS REPRESENTED TO BE
16 SIMILAR IN COLOR, CONTOUR, DIAMETER, ET CETERA, AS OTHER HAIRS;
17 IS THAT CORRECT?
18 MR. CLARKE: OBJECTION, LACK OF FOUNDATION.
19 THE COURT: SUSTAINED.
20
21 BY MR. FELDMAN:
22 Q. DO YOU KNOW WHETHER OR NOT HIS HAIR WAS SIMILAR IN
23 COLOR, CONTOUR, DIAMETER AND LENGTH WITH ANY OF THE OTHER HAIRS
24 YOU WERE PROVIDED?
25 A. I DO NOT.
26 Q. DO YOU NOT DO AN ANALYSIS OF THE HAIRS OR
27 MEASUREMENTS OF THE HAIRS?
28 A. NO, WE DON’T DO MICROSCOPY WHEN WE RECEIVE THE
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1 HAIRS.
2 Q. YOU DID RECEIVE A FULL EMPTY D. N. A. PROFILE WITH
3 REGARD TO THAT HAIR, IS THAT RIGHT?
4 A. YES, WE DID.
5 Q. WITH WHAT ARE RESULT?
6 A. WE OBTAINED 12 POSITIONS OF THE 600 THAT HAD
7 DIFFERENCES FROM THE REFERENCE SEQUENCE.
8 Q. IN OTHER WORDS, IT WAS NOT A MARCH?
9 A. IT WAS NOT A MATCH WITH DANIELLE VAN DAM, THAT IS
10 CORRECT.
11 Q. ALL RIGHT.
12 HOW ABOUT CAN YOU EXCLUDE DANIELLE VAN DAM?
13 A. I CAN EXCLUDE DANIELLE VAN DAM AS THE SOURCE OF
14 HAIR ITEM 23B-H.
15 Q. THANK YOU.
16 HOW ABOUT 23B-1, WHICH IS — I’M NOT SURE WHAT YOUR
17 BODE NUMBER IS, BUT IT’S A PILLOWCASE FROM THE GARAGE. THAT
18 WOULD BE YOUR I THINK IT’S 39, SIR, IF THAT HELPS YOU.
19 I CAN GIVE YOU MORE IDENTIFYING NUMBERS IF THAT
20 HELPS YOU?
21 A. I’M NOT SURE WE DID MITOCHONDRIAL D. N. A. TESTING
22 ON THAT SAMPLE. I’M JUST TRYING TO FIND THE —
23 Q. SIR, DO YOU HAVE A COPY OF THE LETTER DATED JUNE
24 20TH, 2002, THAT WAS WRITTEN BY YOUR COMPANY AND WITH YOUR
25 SIGNATURE TO MR. CLARKE? I’LL SHOW IT TO YOU. I’M JUST TRYING
26 TO GET YOU SEQUENCED TO WHERE I’M READING. NO PUN. IT’S
27 DISCOVERY PAGE 11,700.
28 THE COURT: WELL, COUNSEL, THIS IS PROBABLY A GREAT TIME
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1 TO TAKE THE BREAK AND YOU CAN GET ON THE SAME WAVELENGTH.
2 DOCTOR, WE’RE GOING TO HAVE TO TAKE OUR LUNCH
3 BREAK.
4 LADIES AND GENTLEMEN, PLEASE REMEMBER THE
5 ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR
6 TESTIMONY AMONG YOURSELVES OR WITH OTHERS. DO NOT FORM OR
7 EXPRESS ANY OPINION ON THIS MATTER UNTIL IT’S GIVEN TO YOU FOR
8 YOUR DECISION.
9 HAVE A PLEASANT LUNCH. HALF PAST 1:00. 1:30.
10
11 (AT 12:00 P.M. THE NOON RECESS WAS
TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)
12