|
|
1389
1 Q. It looks like it says hair examination form, also
2 dated the 21st. There's a Bates stamp on the bottom. Do
3 you have it Bates stamped on yours?
4 A. A what?
5 Q. A Bates stamp on the bottom right of yours.
6 A. No.
7 Q. Okay. Let me just show you there.
8 A. I think we're looking at the same thing.
9 Q. Okay. Now, this is for further comparison of the
10 two fragments; is that correct?
11 A. Yes. This form I use when I go under higher
12 powered magnification using the other microscope I mentioned
13 earlier.
14 Q. Okay. So you're able to determine other or --
15 items with more distinction, I guess, when there's a higher
16 magnification?
17 A. What I mentioned earlier is that with this type of
18 microscope, you can actually look into the hair itself, the
19 hair shaft and the root and things like that and look at
20 what we refer to as the internal microscopic
21 characteristics.
22 Q. Okay.
23 A. Pigmentation, things like that.
24 Q. You did -- there's a spot there that says, "Cuticle
25 thickness." Do you see that?
26 A. Yes, I do.
27 Q. Okay. Hair fragment 1 you had as a cuticle
28 thickness of 2.5 millimeters; is that correct?
1390
1 A. Micrometers.
2 Q. Micrometers. I'm sorry.
3 A. Microns.
4 Q. And then that was a different thickness than you
5 had for fragment 2; isn't that correct?
6 A. Fragment 2, it shows a range. I say approximately
7 2.5 to 3 and a half microns.
8 Q. To three and a half. So it's about a range of
9 roughly one to one and a half the cuticle thickness of
10 fragment 1; is that correct?
11 A. It would range from that.
12 Q. Okay. From 100 to 150 percent, basically?
13 A. Yes.
14 Q. Is that correct?
15 Okay. Then my copy is not great here. On cuticle
16 variation, I can't see the first word, but then it says,
17 "Even and uneven."
18 A. Both even and uneven.
19 Q. Okay. What are you referring to there?
20 A. When you look at the -- I'll use my pencil again.
21 Although, it's going to be hard to use this as an analogy
22 for the cuticle.
23 But the cuticle is the outer coating of the hair made
24 up of the cuticle scales. They overlap each other. And if
25 you think of the paint of the pencil as a cuticle layer,
26 it's a relatively small layer compared to the rest of the
27 hair.
28 When you look at the boundary between the cuticle layer
1391
1 and the next layer in, called the cortex, sometimes you'll
2 see a delineation which is relatively even -- even, in other
3 words, there's no variation in that demarcation or
4 difference, that area where it joins, where sometimes you'll
5 see where they're actually -- it's uneven, it will vary from
6 place to place along the hair shaft.
7 In this case, with fragment 1, I noticed both even and
8 uneven, places that -- that area where it met was even along
9 the shaft and other places it wasn't, it varied.
10 Q. And that was a different observation on fragment 2;
11 isn't that correct?
12 A. Yes.
13 Q. Because fragment 2, as opposed to having this
14 variation of even and uneven, you had -- you cited that as a
15 mostly even for that cuticle variation; isn't that correct?
16 A. That's what I put down.
17 Q. Okay. You also were able to, with the higher
18 magnification, take a look at the pigment color; isn't that
19 correct?
20 A. Yes.
21 Q. And when you took a look at the pigment color,
22 fragment 1 you had as brown, but fragment 2 you had as not
23 only brown, but darker than fragment 1; isn't that correct?
24 A. That's correct.
25 Q. Okay. Were you able to do anything or make any
26 observation as to the age of the hair or, I'm sorry, the
27 hair fragments of 1 and 2?
28 A. You mean in terms of the person that it may have
1392
1 come from or in terms of the age of the hair itself?
2 Q. Age of the hair itself.
3 A. That would be hard to do without a root, other than
4 to look at other characteristics, such as the cuticle layer,
5 the outside area, if it had been abraded or roughened up or
6 had, let's say, use the colloquialism, had gone through a
7 washing machine, something like that, where it looks as
8 though it had been used and abused. In this case, I didn't
9 notice anything that would lead me to make any type of
10 observation about the age of the hair.
11 Q. Okay. Now, did you also -- you did the same kind
12 of examination and comparison that we've gone through with 1
13 and 2 with the hairs that Mr. Harris told you, stipulated
14 came from the black-blue or blue-black hairbrush; is that
15 correct?
16 A. Easy for you to say.
17 Yes, I did -- I did a similar examination, evaluation.
18 Q. Okay. And in that examination, how did you obtain
19 those hairs?
20 A. I basically, with a pair of tweezers and with
21 gloved hands, removed the hairs off the hairbrush --
22 Q. Okay.
23 A. -- placed them under a clear plastic sheet
24 protector, and went through about the same process that I
25 did for the unknown hairs too.
26 Q. Okay. Did you find that there were some -- you
27 said that if some features fell within a range of variation,
28 is that correct, from the -- from fragment 1 and 2, there
1393
1 was some variation between that and -- what did you call the
2 other samples? Did you label them 148F and something or
3 else?
4 A. You've lost me. I --
5 Q. The blue-black --
6 A. I don't know where you're referring to or what
7 other sample you're talking about.
8 Q. On your chart --
9 A. Okay.
10 Q. -- you have four columns.
11 A. Okay.
12 Q. Okay. Now, the first two columns we've gone over
13 were hair fragment 1 and hair fragment 2.
14 A. All right.
15 Q. Third column is what?
16 A. 26A.
17 Q. Okay. What -- what are you -- what is 26A?
18 A. Those were the hairs that came from the blue-black
19 hairbrush.
20 Q. Okay. And you're the one who removed the hairs to
21 do the comparison; is that correct?
22 A. I did.
23 Q. Okay. Now, when you did that comparison, did you
24 compare -- well, were both -- were there two hairs that you
25 pulled out specifically for each column? One hair? What
26 did you do?
27 A. Well, for the visual evaluation and for the
28 stereomicroscopic, which is the low-powered magnification, I
1394
1 used all the hairs. In other words, if you remember, when I
2 took the hairs off the hairbrush, I put them under a clear
3 plastic sheet protector, that way I could look at the whole
4 sample at one time. That gave me an idea to establish
5 characters -- to characterize that sample so I could obtain
6 a range of variation, which is really what I'm trying to
7 establish.
8 Q. Okay.
9 A. Trying to establish from this end to that end what
10 are the different characteristics and how far they vary. So
11 for the stereomicroscopic evaluation, I used essentially
12 most all those hairs that I got off the hairbrush.
13 Q. Okay. Now, on the chart that was -- I guess the
14 second page that was --
15 A. Comparison?
16 Q. -- you're reading horizontally?
17 A. Yeah.
18 Q. You've got item number 26A and item number 26B; is
19 that correct?
20 A. That's correct.
21 Q. Okay. Now, is it a fair statement that both -- and
22 26A and 26B are both hairs that came off of the hairbrush,
23 right?
24 A. Well, they came off the separate hair brushes.
25 Q. Separate hair brushes?
26 A. 26A was the blue-black, 26B was the brown.
27 Q. Okay. And is it a fair statement that the size --
28 and you said it was in micromillimeters for the cuticle
1395
1 thickness?
2 A. In microns or micrometers, yes.
3 Q. Okay. For the -- is 26A the blue-black hair --
4 A. That's --
5 Q. -- the one that came from the blue-black brush?
6 A. That's correct. Yes.
7 Q. Okay. That is the same size, 2.5 to 3.5, as
8 fragment 2; isn't that correct?
9 A. And for fragment 1.
10 Q. And fragment 1, you've got 2.5. You don't say 2.5
11 to 3.5, right?
12 A. But that's only one hair, so --
13 Q. Right. Fragment 2 is 2.5 to 3.5?
14 A. Right, but that's a range of variation, so --
15 Q. Okay. Range of variation on --
16 A. Fragment 1 falls within the range of variation of
17 the blue-black hairs --
18 Q. Right.
19 A. -- or hairs from the blue-black hairbrush.
20 Q. But you don't have 2.5 to 3.5 for fragment 1; isn't
21 that correct?
22 A. That's correct.
23 Q. Okay. You do have 2.5 to 3.5 for fragment 2, 26A
24 and 26B, correct?
25 A. Yes.
26 And I need to clarify, again, is that that's a range of
27 variation for all the hairs that I looked at in that -- at
28 that point in time for the comparison. So that establishes
1396
1 the bounds of the lowest or the smallest cuticle thickness
2 to the largest that I saw.
3 Q. Well, you also have on cuticle variation fragment 1
4 is both even and uneven, right?
5 A. Right.
6 Q. Fragment 2 is mostly even, right?
7 A. Correct.
8 Q. For the blue-black hair -- blue-black hairbrush --
9 A. You're starting to say it now.
10 Q. -- and the brown hairbrush, you have even and
11 uneven; is that correct?
12 A. Both even and uneven, yes.
13 Q. Okay.
14 A. And within the sample of 26A, what those notes
15 indicate to me is that I saw cuticle variation that ranged
16 from even to uneven on individual hairs and corporately for
17 all -- for all the hair -- excuse me, for the whole hair
18 sample. So both fragments 1 and fragments 2 of item 144
19 fall within what I saw from the hairbrush of 26A.
20 Q. Okay. Now, you also were given what is an evidence
21 hair that you had labeled 146A and an item 148F. Do you
22 have that?
23 A. That was on a totally different case report, and I
24 think we were looking at different hairs too from a
25 different source.
26 Q. Okay. Do you know where the source for those were?
27 A. Well, if you give me a moment, I'll go take a look,
28 because there were a lot of items we looked at --
1397
1 Q. Okay.
2 A. -- given the thickness of the binder. Those may
3 have been --
4 Q. I got -- maybe I can -- I've got the page here in
5 your notes.
6 A. I'm getting there.
7 Q. Is this it?
8 A. That's one of the ones I did. This one right here.
9 Is that what you have? Do you have a report for that?
10 Q. Let's see if I can --
11 A. If you're referring to 146A and the items 148,
12 which were -- there were several hairs in that, those were
13 nonhuman hairs.
14 Q. Well, exactly. And that was submitted -- this was
15 evidence that was submitted to the laboratory --
16 A. On February 28.
17 Q. -- February 28th.
18 A. Right.
19 Q. 146A was hair or fiber collected from the red rope;
20 is that correct?
21 A. That's right.
22 Q. 148F is hair -- hairs collected from black and
23 orange nylon rope in green bag?
24 A. Yes.
25 Q. Okay. So you were also given some hairs to take a
26 look at as well. What was your conclusion as to what those
27 hairs were?
28 A. I can read the summary.
1398
1 Q. Sure.
2 A. The one evidence hair in item 146A and eight
3 evidence hair frag -- hairs or hair fragments in item 148F
4 were nonhuman in origin.
5 Evidence hairs 146A, 148F-2 and 148F-7 possessed
6 characteristics indicative of dog hair.
7 Evidence hairs, hair fragments 148F-1, 148F-3 to 148F-6
8 and 148F-8 could be cat or dog hairs.
9 Q. What was the color of the hair?
10 A. Which hair?
11 Q. The -- there was eight that you identified. What
12 was their range of color?
13 A. 146, golden brown. 148F-1 through -- it ranges
14 from golden brown to a light brown to a very light brown
15 to -- and, in some cases, clear. Just to summarize. Is
16 that what you have?
17 Q. Yes.
18 A. Okay.
19 Q. Then the -- were you given some other sample hairs
20 from a -- specifically that was represented to you to be
21 from a dog or a specific dog as a known sample?
22 A. We were given some reference hairs --
23 MR. HARRIS: Your Honor, I have to object as to
24 relevance. It's outside the scope of direct.
25 THE COURT: It is outside the area of relevance,
26 Mr. Geragos.
27 MR. GERAGOS: For the chain of custody, I believe that
28 it is relevant if there is -- they had indicated they were
1399
1 going to utilize dog trailing evidence.
2 My offer of proof is that the -- some of the dog hairs
3 that they compared to were the dogs that were actually
4 placed into the boat that apparently shed hairs into the
5 boat as well.
6 THE COURT: I think you can ask him whether there's any
7 possibility these hairs are a dog's hair. And if he says
8 no, we're off.
9 MR. GERAGOS: Well, the problem is is that there is a
10 transference issue. And if that's going to be the issue,
11 the dogs were -- I will represent to the Court that the one
12 dog in particular was at the house first on the morning of
13 the 27th, and then it was immediately taken to the boat on
14 the same morning of the 27th. There were then hairs that
15 were recovered from the boat, and they apparently took hair
16 samples from that dog to do a comparison with the hair
17 samples that were taken from the boat.
18 THE COURT: Mr. Harris?
19 MR. HARRIS: We don't need this witness to go through
20 and tell us his microscopic comparisons of dog hairs. It's
21 something Counsel can ask of other witnesses or produce his
22 own witnesses as to that point. This is not something
23 within any knowledge of this witness whether any of that
24 stuff happened.
25 MR. GERAGOS: No, it's --
26 THE COURT: I've heard enough. It goes to the weight
27 of his testimony as far as the hair evidence in this matter,
28 so I'll allow it.
1400
1 MR. GERAGOS: Q. The -- you were given a task, if you
2 will, or I think you guys call it a request, to compare some
3 hair samples from a dog with hair samples that were
4 recovered from a boat; isn't that correct?
5 A. The one reference sample that I'm aware of that I
6 looked at were from a Golden Retriever by the name of
7 McKenzie.
8 Q. Okay. Did you look at any other hair samples to
9 compare with --
10 A. With -- I'm sorry.
11 Q. -- animal hair samples?
12 A. Reference samples or unknowns?
13 Q. Yes, reference samples.
14 A. No.
15 Q. From a dog named Twist.
16 A. No. No, sir.
17 Q. Would that have been some other analyst?
18 A. Not in our lab.
19 MR. GERAGOS: Okay. Thank you. I have no further
20 questions.
21 THE COURT: Mr. Harris?
22
23 REDIRECT EXAMINATION
24 MR. HARRIS: Q. Just make sure we're clear about this,
25 the hair fragments 144A, 1 and 2, are those human hairs.
26 A. They're human head hairs.
27 Q. Now, you indicated that -- before that Laci
28 Peterson could have been someone who donated those two
1401
1 fragments?
2 MR. GERAGOS: Objection. That misstates the evidence.
3 That's not what he testified to.
4 THE COURT: Well, overruled.
5 THE WITNESS: What -- could you restate the question,
6 please?
7 MR. HARRIS: Q. With -- going back to where I kind of
8 confused you before with the stipulation, with the
9 understanding that 26A is Laci Peterson's hairbrush, so that
10 particular person's hairbrush, could the person whose
11 hairbrush that was have contributed fragment 1 and 2 of
12 144A?
13 A. Could have? Yes.
14 Q. All right. The hair fragments that we're looking
15 at, they're 1 and 2, are those shed hairs?
16 A. That is hard to discern, because there is no root.
17 Q. What is a shed hair?
18 A. A naturally shed hair is a hair that has entered
19 into the resting phase, it has a root that has started to go
20 to sleep, for example, and to be allowed to come away from
21 the scalp through combing or whatever means. The shape of
22 that root changes, we -- in hair examination, that root is
23 called a telogen, T-E-L-O-G-E-N, root. And if you see that
24 type of a root on a hair, it is a hair that could be
25 naturally shed, and especially if you find it away from the
26 body, that is what usually is presumed to have occurred.
27 Q. Okay. Now, you looked at some of the hairs or a
28 number of hairs from the 26A hairbrush. Did you find that
1402
1 characteristic occurring in Laci Peterson's hairs, that
2 catagen, telogen, I believe that's how you have it up there?
3 A. There's three -- three types of -- well, three
4 definitions or three ways of describing hairs based on
5 whether they're alive or they're going into a transition
6 phase or they're in the resting phase.
7 If they're an actively growing head hair, the root is
8 very pliable, and when it comes away from the scalp, if it's
9 forcibly removed, it looks as though you've taken a rubber
10 band, snapped it, and it hasn't quite gotten back into
11 shape. That's an anagen hair -- excuse me, an anagen root,
12 A-N-A-G-E-N.
13 A catagen, C-A-T-A-G-E-N, is a hair root that is in
14 transition between actively growing and resting. And a lot
15 of times, in that case, if you've seen a hair away from the
16 body, you may see a little tissue tag, we call it a
17 follicular tissue tag, attached to the root.
18 And a telogen is when it's in the resting phase, when
19 the root is in the resting phase.
20 In item 26A, I said the majority -- in reading from the
21 form, I said approximately 95 to 99 percent of those hairs I
22 saw from the sample were from the catagen, slash, telogen.
23 There's going to be obviously a gradation, a continuum. I
24 said I saw a few antigen and cut -- or cut hairs, that
25 lacked a root. When I said "cut," I meant the root had been
26 cut off.
27 Q. And you didn't observe those same characteristics
28 in fragment 1 or fragment 2?
1403
1 A. Couldn't tell. No root.
2 Q. All right. Now, with regards to -- you were asked
3 about the different boxes on your chart up there, and I want
4 to go through one of the boxes you were asked about, and
5 that was trace evidence. You've already told us about
6 these -- one kind of mystery material and the other blade of
7 grass or plant material that was there. Were both of these
8 found on one of the fragments or what?
9 A. The plant material was found on the longest
10 fragment, which was -- which I identified as fragment 1, and
11 the -- as of yet, the mystery material, the translucent
12 piece, which I think was approximately a quarter inch, was
13 found on the other fragment, fragment 2, the shorter --
14 shorter fragment.
15 Q. Now, underneath that in your chart, you have up
16 there the trace evidence was removed, put in a bindle,
17 there's notations underneath that.
18 What do those stand for? "Some" -- starts, "Some" --
19 A. Oh, I said, "Some clear to off-white encrustation."
20 Q. So you saw that clear to off-white encrustation of
21 both fragment 1 and fragment 2?
22 A. Yes.
23 Q. Did you also note that on the hairs from 26A?
24 A. Yes.
25 Q. Now, you were -- you were asked about something
26 that was filed by the District Attorney's Office.
27 You don't file paperwork for the District Attorney's
28 Office, do you?
1404
1 A. No.
2 Q. And you were read something. I want to -- let me
3 show you page 15 of this particular motion, give you a
4 chance to look at this here on line 15.
5 The only quoted portion in that particular sentence is
6 the part that says, "Mashed, splayed and frayed"; is that
7 correct?
8 A. Yes. That's correct. Well, excuse me, and then
9 there was --
10 Q. In that particular sentence?
11 A. Oh, in that particular sentence? Yes. That's
12 correct.
13 Q. And is that what you have written on your -- the
14 chart up there that's a blowup of your notes?
15 A. For fragments 1 and 2?
16 Q. Yes.
17 A. Yes.
18 Q. With regards to these pliers that you were asked
19 about with the other analyst, Miss Yoshida, she's somebody
20 that works with you at the lab?
21 A. She's a senior criminalist in our lab, yes.
22 Q. And do you happen to know when it was that she
23 prepared that report?
24 A. I could look.
25 Q. If you would, so we could get the correct date.
26 While you're doing that, I'm going to have another
27 photograph marked.
28 THE CLERK: Exhibit 139.
1405
1 (Whereupon, People's Exhibit 139 was marked for
2 identification.)
3 THE WITNESS: There were two reports that Senior
4 Criminalist Yoshida prepared. One was dated February 26th
5 of this year, and the other one, the second one was dated
6 March 19th of this year.
7 MR. HARRIS: Q. So if we take the first one, which
8 would be in February -- I know it will sound kind of like a
9 dumb question, but that's a couple months after December,
10 right?
11 A. By my reckoning, yes.
12 Q. All right. And have you ever had experience in
13 your job as a criminalist with subjecting tools, or maybe
14 even in your personal life, to exposure to salt water?
15 A. I fished in Alaska over the course of this last ten
16 years about five times, been saltwater fishing and stream
17 fishing for salmon, halibut. I'm pretty familiar with it.
18 Q. What happens to tools when they're exposed to salt
19 water?
20 A. They rust relatively quick if they're not rinsed
21 off in clear water, in fresh water. They have a tendency,
22 because they're a soft metal, they're not really protected,
23 they're not usually a stainless steel or something that
24 inhibits rusting, so they have a tendency to rust pretty
25 quickly.
26 Even a pair of Leathermans that I carry, which are a
27 multi-tool implement, up there for, you know, fixing things
28 as they break, I dropped them in salt water one time, and I
1406
1 didn't rinse it or for a day's time, and it started to rust
2 on me.
3 Q. Looking at the photograph that you have before you
4 that's been marked as People's Number 139, I know it's kind
5 of hard to see, but do you see depicted in the photograph a
6 pair of pliers?
7 A. Right here (indicates).
8 Q. And --
9 A. Pretty close.
10 Q. Can you tell if there is a hair that's visible in
11 that pair of pliers?
12 MR. GERAGOS: Objection. The document speaks for
13 itself.
14 THE COURT: I'll sustain that.
15 MR. HARRIS: Q. Do you see a pair of -- hair in that
16 pair of pliers?
17 MR. GERAGOS: Same objection.
18 THE COURT: Sustained.
19 MR. HARRIS: Q. Looking at the hair in the pliers
20 there, do you notice something that is similar to the other
21 photographs that you have up there that you've brought with
22 you or testified to earlier?
23 A. Well, if I could describe it, what I see is a hair,
24 trails off from the -- from what looks to be the tip of the
25 pair of pliers across this numbered bracket, an item -- item
26 number, which is 44. It lays across the front of that. And
27 towards the end or part of the hair away from the pliers,
28 there's a long, thin piece of material, looks like it's
1407
1 attached to the hair.
2 Q. Does that piece of material that looks like it's
3 attached to the hair look like some of the -- excuse me,
4 some of the debris that you found on the hair or hair
5 fragments when you examined it in February?
6 A. It has the same rough dimensions, relatively
7 speaking.
8 MR. HARRIS: People have no other questions.
9
10 RECROSS-EXAMINATION
11 MR. GERAGOS: Q. Nobody ever bothered to show you that
12 prior to today?
13 A. I saw this picture maybe two times before.
14 Q. Okay. Now, the --
15 A. But it was not as -- it was maybe a little less
16 clear, a little bit more blurred, the earlier pictures I
17 saw.
18 Q. Okay. So this is an enhanced version for you?
19 A. I can't -- I don't know if it is or not.
20 Q. Okay. Now, do you have in front of you the
21 previous thing you had in your hand, the other item -- not
22 the picture. You can put the picture down for a second, if
23 you want.
24 A. Okay.
25 Q. You were looking at something else with the
26 comparison.
27 A. I was looking at the other pictures.
28 Q. Okay. You said they look -- that there's roughly
1408
1 the same dimensions, is that -- was that your testimony?
2 A. Relatively speaking.
3 Q. Relatively speaking?
4 A. Same rough dimensions, relatively speaking.
5 Q. The --
6 A. And I'm referring to this piece of material right
7 there (indicates).
8 Q. Right. And, once again, Mr. Harris showed you that
9 page 15, line 15, and nowhere in your notes or in the report
10 on the motion that they wrote did you ever say that the
11 damaged ends appeared to match each other; isn't that
12 correct?
13 A. Page 15 of which report?
14 Q. The report he just showed you.
15 A. Oh.
16 Q. The motion, if you will, that he showed you.
17 A. He wanted me to focus in on what was par -- what
18 was in quotation marks: Mashed, splayed and frayed.
19 Q. Right. He didn't ask you to focus in on what those
20 quotations marks were used to say, which is that they appear
21 to match each other, you never said that in your notes nor
22 in your report; isn't that correct?
23 A. No, what I saw in quotations on page 15 was mashed,
24 splayed and frayed.
25 Q. Right. And you never wrote, "Appear to match each
26 other", isn't that correct, in either your --
27 A. The mashed ends?
28 Q. Right.
1409
1 A. That's correct, I never said that.
2 Q. You never said that. Now, the --
3 A. In the report.
4 Q. The examination of 26A and B, did you also note in
5 there under 26B that -- where it says indicated body area --
6 do you see that?
7 A. If you give me a moment, I'm just going to go to
8 this one and turn it around.
9 I'm sorry. Could you repeat that, please?
10 Q. Do you say where it says indicated body area for
11 26B?
12 A. Page nine?
13 Q. Yeah. Let me show you.
14 A. I'm with you.
15 Q. You got it?
16 A. Yeah.
17 Q. You see there's a -- you've put in there some
18 notations. Do you see that?
19 A. Yeah.
20 Q. Okay. And then what's the top one?
21 A. That -- I use that acronym to mean primarily, a one
22 with a little circle superscript. Primarily human head
23 hair.
24 Q. Okay. What does it say below?
25 A. "Few appear to be nonhair fibers and/or nonhuman."
26 And then it says, "Evaluate on comparison scope."
27 Q. Okay. What does that mean, "Few appear to be
28 nonhuman"?
1410
1 A. Well, in some of the earlier notes, as well in the
2 photos, there seemed to be a lot of lint or some lint and
3 some other nonhuman hairs that were intermixed with the
4 sample that was on that hairbrush.
5 Q. And did you -- were you able to identify what that
6 mystery material was?
7 A. I basically just said they appeared to be nonhair
8 fibers and/or nonhuman. I didn't go any farther than that.
9 Q. Did you ever do a comparison from the -- what you
10 called the mystery material on the -- one of the hair
11 fragments with the nonhuman fibers found on the brush?
12 A. No.
13 Q. Number 26B?
14 A. No.
15 Q. You never did that?
16 A. You need to restate the question, please.
17 Q. Did you ever compare what you labeled the mystery
18 material that was attached to -- or you say was attached to
19 or came in conjunction with, if you will, the fragment 1 --
20 you know what I'm talking about?
21 A. Well, the stuff that had -- stuff. The material
22 that came off of fragment 2 is what hasn't been looked at
23 yet.
24 Q. Okay. Did you ever --
25 A. That's what I alluded to earlier, if you're quoting
26 me, as mystery material, quote, unquote.
27 Q. I'm quoting you.
28 A. Okay.
1411
1 Q. That's from fragment 2.
2 A. That's from fragment 2.
3 Q. Did you ever -- did you ever compare that to the
4 nonhuman fibers or material in 26B?
5 A. No, I did not.
6 MR. GERAGOS: Thank you. I have no further questions.
7 MR. HARRIS: Just real briefly.
8
9 FURTHER REDIRECT EXAMINATION
10 MR. HARRIS: Q. The fibers or the nonhair fibers and
11 nonhuman hairs in the second brush, 26B, is that the same
12 type of material that that, quote, mystery material is on
13 fragment 2?
14 A. It doesn't have the same consistency. They're
15 basically -- those were fibers and nonhuman hairs. The
16 material that came from the fragment -- the second fragment,
17 fragment 2 of 144A, was a small rectangular, roughly
18 rectangular piece of like a translucent material when I
19 first observed it, when I first looked at it. It didn't
20 look similar to what I saw on 26B. But I did not take a
21 thorough look at all that nonhuman hair or nonhair fibers
22 that were on 26B, so I can't state for certain.
23 Q. But on your initial inspection, they weren't
24 similar?
25 MR. GERAGOS: Objection. Misstates the evidence.
26 THE COURT: Sustained.
27 MR. HARRIS: I have no further questions.
28 MR. GERAGOS: Nothing further.
1412
1 THE COURT: You may step down.
2 THE WITNESS: Thank you, Your Honor.
3 MR. GERAGOS: Can I -- could I have one moment with
4 Counsel?
5 (Whereupon, counsel confer.)
6 MR. HARRIS: Your Honor, before the witness goes, I
7 would ask that People's exhibits, except for 139, with this
8 witness be admitted.
9 THE COURT: That would be 134 through 138. Any
10 objection, Mr. Geragos?
11 MR. GERAGOS: No, Your Honor.
12 THE COURT: How about CC, Mr. Harris? That's the hand
13 drawing.
14 MR. HARRIS: The artwork that's up there? I have no
15 objection.
16 THE COURT: You want it in, I assume, Mr. Geragos?
17 MR. GERAGOS: I do, Your Honor.
18 THE COURT: That will be in evidence, then, 134 to 138
19 and CC.
20 (Whereupon, People's Exhibits 134 through 138 were
21 received into evidence.)
22 (Whereupon, Defendant's Exhibit CC was received into
23 evidence.)
24 THE COURT: Your next witness?
25 MR. HARRIS: I believe there was a discussion between
26 Counsel that we might be recalling a witness for a moment,
27 not this witness, though.
28 RODNEY OSWALT: No, I'm just checking to make sure I
1413
1 didn't leave anything. I can't trust anybody in the
2 courtroom.
3 MR. DISTASO: Your Honor, I'm going to recall Owen just
4 real quick.
5 THE COURT: You're still under oath, Detective Owen.
6 PHILIP OWEN: Yes.
7
8 PHILIP OWEN,
9 recalled as a witness on behalf of the People, being
10 previously duly sworn, was examined and testified as
11 follows:
12
13 DIRECT EXAMINATION
14 MR. DISTASO: Q. Detective Owen, just very briefly.
15 Did -- over the -- I mean, when Counsel was questioning you
16 earlier this morning, he asked you about an interview with a
17 Diane Campos?
18 A. Yes.
19 Q. And he asked you if that interview was taped?
20 A. Yes.
21 Q. And over the lunch break, did you listen to -- did
22 you listen to the tape recording of that interview?
23 A. Yes.
24 Q. And what time did Miss Campos tell you that she saw
25 these people, these two men and one woman with the dog in
26 the park?
27 A. She said 10:45 on at least two occasions.
28 Q. On the tape?
1414
1 A. Yes.
2 MR. DISTASO: Okay. Nothing further, Your Honor.
3
4 CROSS-EXAMINATION
5 MR. GERAGOS: Q. She told you approximately. And did
6 you bother to call her back and ask her if she had checked
7 her records that day to find out what time she was out there
8 for her break?
9 A. I did not call her back.
10 Q. Okay. Did you bother to ask her, follow up and see
11 if it was 10:45 or 9:45 when she went back and checked the
12 records?
13 A. I felt comfortable with 10:45.
14 Q. Because that would take you in the direction you
15 wanted to go in?
16 A. No.
17 MR. GERAGOS: Thank you. I have no further questions.
18 MR. DISTASO: Nothing further.
19 THE COURT: You may step down.
20 Why don't we take our recess here. How about 20 till
21 3:00?
22 MR. GERAGOS: You were going to have us argue the DNA
23 at 3:00. Is it possible we take a longer break so that I
24 can get up to -- just summarize that?
25 THE COURT: Do you have another witness before
26 3 o'clock?
27 MR. HARRIS: We do. The next one should be relatively
28 short.
1415
1 THE COURT: Why don't we just do the witness now and
2 then take the break.
3 MR. GERAGOS: I would prefer that, if we could.
4 MR. HARRIS: People call Bill Hudlow.
5 THE CLERK: Please step this way. Raise your right
6 hand, please.
7
8 WILLIAM R. HUDLOW,
9 called as a witness on behalf of the People, being first
10 duly sworn, was examined and testified as follows:
11
12 THE CLERK: Please have a seat, put the microphone
13 around your neck.
14
15 DIRECT EXAMINATION
16 MR. HARRIS: Q. Sir, can you tell us what your full
17 name is and spell your last name for the record?
18 A. William R. Hudlow, H-U-D-L-O-W.
19 Q. And how are you employed?
20 A. I'm a senior criminalist with the California
21 Department of Justice.
22 Q. And how long have you been employed there?
23 A. I've been with the Department of Justice for a
24 total of approximately six and a half years.
25 Q. I want to direct your attention to July 4th of 2003
26 and ask you if you were involved when a request was made to
27 submit some evidence to the FBI laboratory back in the East
28 Coast?
1416
1 A. I do recall that. I believe that was June 4th. If
2 I could refer to my notes.
3 Q. Did you write a report or make some type of
4 notations?
5 A. Yes, I did.
6 Q. If you'd look at your report.
7 A. That's correct, on June 4th, I did prepare some
8 samples for transfer to the FBI laboratory.
9 Q. I want to focus specifically on a particular item
10 that was identified as a 144A. Did you obtain that
11 particular item from your -- from a secure location at the
12 Department of Justice?
13 A. That's correct.
14 Q. And was it packaged and in a sealed condition when
15 you obtained it?
16 A. Yes, it was.
17 Q. Did you give it to anyone in particular?
18 A. After repackaging that item, I did actually
19 transfer it to Special Agent Terry Scott of the FBI.
20 Q. All right. So you took the item from the secure
21 location, repackaged it. Did you take the -- what the
22 contents were out of it?
23 A. No, I did not.
24 Q. So when you say you repackage it, can you explain
25 to the Court what you did?
26 A. I actually took the -- it was a coin envelope, a
27 small tape-sealed envelope. I documented the type of
28 envelope and the labeling as well as the seal. I then
1417
1 placed it into a larger envelope and tape sealed that,
2 documenting on the exterior the item number as well as the
3 contents, and then placed that in my freezer until it was
4 ready for transfer to the special agent.
5 Q. So this repackaged 144A that you repackaged, did
6 you ultimately give that to someone from the FBI?
7 A. Yes, Special Agent Terry Scott.
8 Q. I'd like to show you what has been previously been
9 admitted as 33 and 36. Do you recognize these photographs?
10 A. Yes, I do.
11 Q. And how is it that you recognize these particular
12 items?
13 A. The photograph to the left, item 36, is the
14 tape-sealed coin envelope, which contained 144A, that I then
15 packaged into the larger envelope, as indicated in People's
16 35. That was a transfer envelope.
17 Q. And on this particular -- starting with 36, the
18 smaller --
19 THE COURT: Before you go too far with those numbers,
20 those are internal numbers, right, those are not the court's
21 numbers?
22 MR. HARRIS: The 36?
23 THE COURT: Okay. I'm in sync.
24 MR. HARRIS: Q. All right. Let's go back. People's
25 36 there, that particular smaller envelope, does that have
26 your initials on there?
27 A. Yes, it does. On the bottom of the front is my
28 initials as well as the date.
1418
1 Q. And does it have your agency's case number?
2 A. Yes, it does, just above that.
3 Q. And then towards the top of that in the middle of
4 that package, does it have writing that indicates Q1?
5 A. Yes, it does.
6 Q. Looking at People's Number 35, is this the larger
7 envelope that you placed People's Number 36 into?
8 A. That's correct.
9 Q. And do you recognize this particular envelope?
10 A. Yes, I do.
11 Q. Does it have your initials on it?
12 A. Yes, it does.
13 Q. And does that also have Q1 written on it?
14 A. Yes, it does.
15 Q. Does it also have your case number and the item
16 number of 144A?
17 A. Yes, it does.
18 Q. When you gave that to the FBI agent, was that agent
19 Terry Scott?
20 A. That's correct.
21 Q. And when you gave it to him, was it in a sealed
22 condition?
23 A. Yes, it was.
24 MR. HARRIS: People have no other questions.
25 THE COURT: Mr. Geragos?
26 MR. GERAGOS: I don't have any questions.
27 THE COURT: You may step down.
28 MR. HARRIS: Does the Court wish to take the break now?
1418
28
1419
1 THE COURT: You have no other witnesses, then, today?
2 You just want to have argument after?
3 MR. HARRIS: Well, we have other witnesses, but they're
4 much longer.
5 THE COURT: You want to hang on to one, and we'll
6 finish the arguments, maybe? Is that okay? Keep Hendee,
7 and then let's do the arguments? And we'll start again at
8 10 till 3:00. I'll give you an hour each -- correction,
9 half hour each. And the burden is on Mr. Harris. So divide
10 up your time accordingly for rebuttal.
11 MR. HARRIS: All right. Thank you.
12 THE COURT: And one comment I wanted to make.
13 Tentatively, looks like Kelly is satisfied, but the main
14 issue that I have a concern about is the statistical
15 probability determination at the end, and the small samples
16 involved, 5,071, and then actually the sample's really 1833
17 of Caucasians. So you should concentrate most of your
18 argument in that area. So we'll start up again at 10
19 minutes to 3:00.
20 MR. GERAGOS: Thank you, Your Honor.
21 (Recess: 2:30 p.m.)
22 ---oOo---
23
24
25
26
27
28
Argument / HARRIS
1420
1 November 14, 2003, at 2:52 p.m.
2 ---o0o---
3 THE COURT: Let the record reflect that everyone's
4 present.
5 Mr. Harris.
6 MR. HARRIS: I guess the best place to start, since it
7 is the People's burden is to establish what that particular
8 burden is in this particular case. As we've cited to the
9 Court before, under the People versus Ashmus case, it's a
10 preponderance of the evidence standard. So across the
11 spectrum of the basic admissibility of all the mitochondrial
12 DNA subsections or generally, or whatever theory, that's the
13 standard the Court needs to apply to see if we've met our
14 burden.
15 In this particular case, the prosecution presented two
16 very well-qualified witnesses: Dr. Budowle, who's
17 recognized as being one of the most prominent experts in
18 this particular area, both mitochondrial DNA, nuclear DNA
19 and as a forensic scientist, I think that's fairly obviously
20 both from his resume' and from his testimony and from all
21 the articles and publications that are before the Court; the
22 second witness, Dr. Fisher, also eminently qualified in;
23 this particular area, to state an opinion on the general
24 acceptance of mitochondrial DNA.
25 So if we were to stop at that point in time and look at
26 this, the Court would really have no choice but to admit
27 that based upon the testimony of those witnesses. Their
28 particular opinions that it is generally accepted both in
1421
1 theory and in practice, as the Court had directed us towards
2 the start of the Kelly/Frye hearing at the beginning of the
3 case, the Court was more interested in the forensic area.
4 So focusing on that particular area, the only thing that
5 prevents the Court from allowing everything to come in
6 exactly as the FBI practices and performs is the testimony
7 of Dr. Shields. That's the only objection to anything that
8 the FBI is doing.
9 Now Dr. Shields, I guess, can best be characterized as
10 somewhat of a backseat driver of science or a professional
11 complainer. He comes in. He doesn't do the work. He's not
12 really an expert in the area, because he started from the
13 very beginning on voir dire being asked if he does any
14 forensic mitochondrial DNA, and he states that he doesn't.
15 He has a laboratory that conducts mitochondrial DNA
16 research, and it's okay for research, but it's not okay for
17 forensics. So we start getting into the bias of Dr. Shields
18 right from the beginning, but Dr. Shields is being paid for
19 his testimony. He comes in and he has a complaint right
20 from the start of everything but nothing.
21 If the Court will recall his testimony, when I broke it
22 down piece by piece, he had no complaints about the process
23 of extracting DNA. He had no complaints about the process
24 of amplifying DNA. He had no complaints about the process
25 of sequencing DNA. And he had no complaints about the
26 process of using standard statistical calculations to come
27 up with some type of calculation based on the database.
28 Now, when Dr. Shields was pressed on that particular
1422
1 point, his only defense was, well, we know about blood
2 pressure, respiration, heart rate; but we don't allow lie
3 detectors. That's a very simplistic argument that kind of
4 belies his bias in this particular case because there's no
5 correlation between a lie detector and what every other
6 member of the scientific community says about mitochondrial
7 DNA.
8 One of the other flaws with Dr. Shields' testimony is
9 the fact that he pretty much is not willing to assist the
10 Court because of his internal bias. He starts with the
11 simple fact that he refuses to answer the question for the
12 Court of what is generally accepted in the scientific
13 community. So if the Court were to look at that and say, we
14 start with that basic premise that he's not even willing to
15 give us that particular information, his testimony as it
16 relates to the statistics, as the Court wanted us to focus
17 on, gets thrown out. It's a factor the Court can look at,
18 but because of his bias as to that particular point, it
19 really has no meaning, because as Dr. Shields pointed out,
20 I'm willing to talk about the presumption of innocence,
21 which is a legal term, but I'm not willing to get caught on
22 what's generally accepted. And I think there's a reason for
23 that, and the reason for that is that Dr. Shields has been
24 going about for a long period of time complaining about
25 mitochondrial DNA.
26 I would point the Court out to one of the exhibits that
27 we provided initially to our motion, and that would be State
28 versus Pappas, and that's item Number 4. On page 17 of that
1423
1 particular printout that we provided as a copy to the Court,
2 the Court in Connecticut had the same hearing that we're
3 having here, went through the same process of evaluating
4 what Dr. Shields testified about and, in 1991, ruled on the
5 statistical area that Dr. Shields is wrong. At that point
6 in time, the database was much smaller. Actually, the trial
7 was in '91.
8 So when you look at this, he's talking about the FBI's
9 database. He's talking about all the other factors that we
10 go on. As the Court points on it, the database that the FBI
11 uses is a convenience sample, and they had no problem with
12 that. Dr. Shields, he wouldn't necessarily commit one way
13 or the other. When he was asked about nuclear DNA, he
14 didn't necessarily have a problem.
15 So again, Dr. Shields has had this long period of time
16 where he's complaining about what the FBI does. And I think
17 Dr. Shields' bias is very, very clear against the FBI, and I
18 think that's another factor the Court has to consider here.
19 When he was asked about publishing in this particular area,
20 Dr. Shields said, well, I submitted my peer-review article,
21 an article that I wanted to publish criticizing the FBI's
22 validation study, and because of unknown players out in the
23 universe, I guess you could use the term "this conspiracy,"
24 people prevented his paper from being published. It was
25 fairly clear from what Dr. Shields was implying that the FBI
26 was behind this, and they prevented him from publishing
27 this.
28 Now, that can be contrast with another exhibit where
1424
1 Dr. Shields was asked almost the exact same questions
2 before, and that's People's Number 83, which is the Court's
3 opinion in the case of the People versus Hobbs. In that
4 particular case, Dr. Shields was asked about why he didn't
5 publish, he did not publish his own countervailing views.
6 And that's on page three of the decision and order down at
7 lines 21, and he says that:
8 "I have written a paper about the
9 unreliability of mitochondrial DNA for
10 forensic purposes, which I presented at a
11 meeting of the Triple A.S. Publishers of
12 Science, but I didn't publish it because
13 I'm not a forensic scientist. It's not in
14 my ballpark to make it right."
15 So Dr. Shields has been saying -- that was a 2002
16 decision from early on until now -- that nobody seems to do
17 it right but him, yet he has published nothing, he has shown
18 nothing, he has done nothing other than critique other
19 people's work.
20 So, again, if the Court were to set aside Dr. Shields,
21 we'd be back at the same position we were before of
22 Dr. Budowle, Dr. Fisher that there's nothing wrong with what
23 they're doing.
24 Now, you can also go through the other exhibits.
25 There's Number 4, which is State versus Pappas, and that
26 particular case happened to be an FBI examination of hair.
27 People versus Holtzer, the Michigan case, he was against
28 that. And State v. Ware, which he testified to, he was
1425
1 against that there. All of those cases, other courts across
2 the country have found that Dr. Shields' testimony was
3 either unreliable, not credible, not to the point of
4 overcoming what's required of Frye or Kelly.
5 This same thing happened in the Hobbs cause. I think
6 the Court's decision in that case, again, 83, is a
7 significant factor because this decision almost mirrors
8 exactly what we have here. In the Hobbs court, the
9 prosecution offered the testimony of Dr. Mitchell Holland.
10 Dr. Mitchell Holland's testimony was received in the Lamont
11 Johnson case out of San Diego. That's also included as an
12 exhibit of 21-A.
13 In 21-A, Mitchell Holland testified that there's no
14 problems with mitochondrial DNA that cannot be overcome by
15 the analyst and the statistical calculations are
16 appropriate. That transcript goes into the Hobbs case. Dr.
17 Shields comes in and testifies basically against a
18 transcript, and the Court found that it was going to be
19 admissible anyways. The Court went on to note that:
20 "Dr. Holland's credentials, as
21 recited in the San Diego transcript,
22 demonstrate his imminent qualifications to
23 render an opinion as to the general
24 acceptance in the applicable scientific
25 community."
26 Whereas, it goes on:
27 "Dr. William Shields is not a member
28 of that community but, rather, is an
1426
1 environmental science professor whose
2 genetic work principally dealt with
3 nonhuman populations. The Court can only
4 surmise that Dr. Shields' explicit
5 refusal, in the face of multiple direct
6 inquiries by counsel and by the Court, to
7 address the issue of whether mitochondrial
8 DNA forensic case work is generally
9 accepted in the scientific community was a
10 refusal based upon the witness's lack of
11 experience."
12 That's exactly what we had here. Dr. Shields was not
13 willing to give us an opinion.
14 As we pointed out in our points and authorities
15 originally, Connecticut versus Pappas dealt specifically
16 with the exact same statistical area that the FBI uses here.
17 And if the Court really boils it down to, Dr. Shields tried
18 to mix somewhat apples and oranges, and that's something
19 Dr. Budowle kept saying you can't do. The database size is
20 different from the statistics. The database size is
21 different from the statistics. That was one of those things
22 that kind of went over and over again. Dr. Shields admits
23 that the statistical formulas that's applied to the database
24 to reach the confidence interval is a standard, basic
25 statistical formula that you're taught in first-year
26 statistics. It's not something that even rises to the level
27 of Kelly; and we pointed out in our points and authorities
28 how People versus Venegas makes that specifically point when
1427
1 it dealt with electrophoresis and blood markers.
2 When you're talking about something that the jury can
3 understand in terms of simple counting, 1 out of 10, 1 out
4 of 100, 1 out of 5,000 in the database, that's something
5 that they can look at and say it matches or it doesn't. You
6 don't even need an expert for that.
7 So when we talk about the statistics of the confidence
8 intervals and the formulas of reliability, that is really a
9 lot of smoke and mirrors. It doesn't have to do -- anything
10 to do with the fact of the size of the database. It's a
11 standard statistical formula. It's something that can be
12 used to give them, as Dr. Fisher testified to, a showing of
13 that Bell curve that, if there's a chance for that error,
14 that you fall within that general area of acceptance, 95
15 percent. Dr. Shields put up on his chart 95 percent, but he
16 would rather have you do it at 99 percent. He's not saying
17 that it can't be done. He just wants you to use a different
18 formula. That's a choice of weight. That is not a choice
19 of admissibility for Frye or Kelly purposes.
20 So, again, even the doctor's testimony, when you boil
21 it down isn't saying you can't do it. He just wants you to
22 do it some other way. Every other statistician, every other
23 person, every other person that's dealing with that finds
24 the counting method and the confidence interval to be
25 accepted in the forensic community; and that you find in
26 People's Number 33, the "Forensics of Mitochondrial DNA."
27 In that particular article, they go through and they talk
28 about all of the potential issues, and nobody has a debate
1428
1 about the statistics. In every single article that the
2 defense offered, no one complained about the statistics.
3 The only issue was whether there was heteroplasmy and
4 whether the database should be shared. So even the
5 defense's articles, which tends to portray the scientific
6 community, shows there isn't a problem.
7 So since there is no dispute as to that particular
8 point in the scientific community, Dr. Shields' testimony
9 can be basically ignored. Case law is very clear. There
10 does not have to be a consensus. There does not have to be
11 a unanimity of opinion. As long as the general populace of
12 the scientific community agree that something is acceptable,
13 it is acceptable and that's all that's required for Kelly.
14 So by a preponderance of the evidence, it's quite clear that
15 the statistics, as explained by Dr. Budowle and Dr. Fisher,
16 are quite clear.
17 The last thing I want to leave the Court with is to
18 look at Dr. Shields' testimony when he was pressed on one
19 particular point when he talked about the sample, the
20 database size. He talked over and over and over again about
21 how it's too small. But when it was pointed out he's done
22 studies on exactly the same size for validation, that
23 validation, Dr. Budowle went on to explain how, no, that's
24 not true, Dr. Shields was misleading the Court. And I would
25 point to the validation study which he was talking about,
26 which is Exhibit 22, and point to page 72 of that particular
27 exhibit where they talk about the total -- total show of
28 number of samples typed; and if you look down at the bottom,
1429
1 it says 224. This is a table in the document that Dr.
2 Shields was complaining about, and he kept coming back to
3 this number of five. If you go through the articles, it
4 talks about in different places, twelve hairs here, four
5 hairs there. More than five samples.
6 Dr. Shields' reluctance to look at the facts, shows his
7 bias against a particular scientific value; and in this
8 particular case, the only thing that's left, when you get
9 down to it, is the counting method.
10 The National Research Council has said the counting
11 method is appropriate, that you compare the number and you
12 report out how many are in the database. That's in our
13 paperwork where we talk about how the Supreme Court has said
14 NRC's reports are entitled to great weight. So under those
15 circumstances, if we look at the NRC report where they say
16 counting is appropriate, Venegas says counting is
17 appropriate and you don't even need a Kelly hearing for that
18 particular area. We don't have the same match
19 probabilities, we don't have the same product rule argument
20 that came up in the old days with nuclear DNA. This is a
21 much simpler approach: One out of whatever. Even Dr.
22 Shields admitted, if it was done his way, the way that he
23 wanted, that database is appropriate to report out a result,
24 which would be 1 out of 9.
25 So even under Dr. Shields' testimony, the Court can get
26 a valid result to give to the jury to help them understand
27 why this is admissible.
28 So I'd like to reserve the rest of my time and just
1430
1 point out to the Court that it really boils down to the
2 credibility of Dr. Shields.
3 THE COURT: You have 15 minutes left. But let me ask.
4 You've cited People's Number 22. Which page were you
5 citing? Or did you mean the transcript, which was twenty --
6 MR. HARRIS: 22 is the validation study of the FBI.
7 THE COURT: Correct. Which page did you cite? You
8 cited a page. I thought you said page 71. There is no 71
9 there.
10 MR. HARRIS: I have on this particular copy at the
11 top --
12 THE COURT: I see it now. The copy I was looking at
13 it's faded out, but 72 is there. Okay.
14 MR. HARRIS: Has a table underneath that?
15 THE COURT: Correct.
16 Mr. Geragos.
17 MR. GERAGOS: Thank you, Your Honor.
18 If I understand Mr. Harris correctly, he wants you to
19 accept Budowle and Fisher and throw out Shields. And his
20 reason for throwing out Shields is that because Shields is
21 somebody who does research in the area as opposed to
22 somebody who does forensics. The whole idea is whether or
23 not this application of this science is appropriate to
24 forensics, number one, and, number two, whether or not the
25 way it's being reported -- and I think if I understand the
26 Court's tentative correctly, whether the way it's being
27 reported is appropriate in a court of law; and, clearly,
28 it's not Dr. Shields who has the only hesitation with the
1431
1 way that it's being reported in a court of law.
2 I specifically asked Dr. Budowle and I think that was
3 at page 9 -- my reference is 952, regarding the database and
4 the size of it, asked:
5 "The reliable -- the mtDNA is too small at
6 this time to provide estimates of the
7 frequency of occurrence of most mtDNA
8 sequences in the population?"
9 Answer by Budowle:
10 "I have to agree with that, Your Honor,
11 because most will not be seen in the small
12 size database, forgetting the actual
13 frequency. You can still make an upper
14 bound on the frequency by the observation,
15 but you would not be able to see all of the
16 mitochondrial types unless you do an
17 exceedingly large amount."
18 I then asked:
19 "And as a result of you agreeing with that
20 statement, would you also then agree with
21 the statement that to date, the number of
22 mtDNA sequences present in the general
23 population is unknown because not all
24 sequences have been observed?"
25 He says he agrees with that.
26 He also agrees at page 952 and 953, that actual
27 frequency can't be given, that they only give what they call
28 an upper bound.
1432
1 He agreed at 953 when I said:
2 "Would you also agree with the
3 statement -- the following statement: The
4 fact that small databases are not effective
5 tools for estimating frequency for rare
6 events?"
7 His answer:
8 "Absolutely right again. We have to give
9 you the upper bound, the more conservative,
10 which would be greater than those -- most
11 rare events will ever be, in favor of being
12 more conservative."
13 I then asked at 953:
14 "Would you agree that the FBI -- as the
15 FBI database grows in size, the frequency
16 estimates for individual mtDNA profiles
17 would become more and more refined and
18 eventually lead to reliable population
19 frequency?"
20 "Answer: I agree with that, but it's
21 going to be a very large database."
22 Specifically Dr. Fisher said -- I asked her, and I
23 believe this is on page 92 of the first day of the
24 transcripts.
25 "Question: Okay. And, in fact,
26 mitochondrial DNA has a limitation, and the
27 limitation is that the only frequency that
28 you can determine is based upon the size of
1433
1 the database that you're operating from;
2 isn't that correct?"
3 "Answer: The statistics that we can give
4 on the frequency are limited by the size of
5 the database."
6 "Question: Okay. So if we come back a
7 month from now, we may have 6,003 or some
8 other such number?"
9 Her answer:
10 "I would love it, but I doubt it's going
11 to be that quick."
12 I asked:
13 "Is it a fair statement that based upon
14 the rate of typing, if you will, that you're
15 not expanding this database at a very quick
16 pace?"
17 Her answer:
18 "Unfortunately, that's true."
19 I said as a -- and I believe this is also on page -- on
20 the second day of transcripts, page 205 and 206:
21 "Is it fair to say that, as of today, the
22 5,071-person database that is being accessed
23 by this computer program is, to your mind,
24 inadequate?"
25 Answer, and this is by Dr. Fisher:
26 "It's not inadequate. It's smaller than
27 we would like, but it's certainly useful for
28 estimating population frequencies."
1434
1 And then she goes on to say:
2 "I would like large enough that we could
3 see every mitochondrial type. I don't know
4 how large that has to be. We won't know
5 until it is that large."
6 "We would like it to be larger."
7 The problem you've got, and I think the Court is zoned
8 in on it appropriately, is this is a criminal case. It is a
9 capital case. Before you start allowing somebody to come in
10 and opine, there has to be, I believe, some basis upon which
11 to do it. When they say themselves that their database is
12 too small, when Dr. Budowle says he attends a conference
13 with -- I think it was Bandelt, and he presents a paper or a
14 presentation, whatever the format was, and they criticize
15 the forensic community for this what he calls an artificial
16 construct, I think, or somehow setting up barriers to these
17 other databases, when there's obviously nothing sacrosanct
18 about the FBI's database. We know for a fact that, when I
19 asked Dr. Fisher is it entirely possible that somebody can
20 self-report as a Caucasian when they're Hispanic, they can
21 self-report as an African-American when they're not or
22 vice-versa. So it's not as if anybody is checking these
23 things, that there's some kind of a higher threshold from
24 the FBI database. Dr. Fisher was quite candid, out of the
25 seven contributing laboratories, there's only two that she's
26 ever been to, and that's the FBI and the Armed Forces. She
27 hasn't even been to the other ones.
28 The problem is, they then set up, in addition to that,
1435
1 this idea that, well, we're only going to count --
2 Mr. Harris' counting method -- zero base pair difference and
3 I'm still sitting here trying to figure out what an
4 exclusion versus an inconclusive versus an inclusion is.
5 Where I come from, when you open up the dictionary, it's a
6 two-sided coin. It isn't a three-sided. You don't have a
7 situation where something is either excluded, inconclusive
8 or included. It's either included or excluded. If it's
9 included, meaning zero base pair differences and one base
10 pair difference, then it has to -- by definition, and
11 Dr. Budowle admitted this, it was not the most conservative
12 estimate to the defendant.
13 I would also submit -- and I apologize because I did
14 not do this. But I believe in many of the other
15 jurisdictions where mitochondrial DNA has been admitted that
16 specifically Dr. Shields' interpretation of the statistics
17 has been adopted in those jurisdictions; and if the Court
18 wants, over the weekend I will find that. But I do not
19 believe it is the case where -- in several jurisdictions
20 where, if mitochondrial is let in, that the FBI is allowed
21 to report it in the way that it does.
22 There are, I think obvious, inherent limitations, and I
23 think built in and I can't imagine that the People would
24 want evidence that comes in and starts talking about
25 upper-bound 95 percent confidence rates in a capital murder
26 case. I mean, to me, that's just mind-boggling.
27 There are rules. You don't decide cases by lot, CALJIC
28 Instructions, by chance; and to some degree, that's what the
1436
1 People are inviting here. The People are asking you decide
2 this case by chance. You know, eventually maybe some
3 defendant ten years from now, we might get to a 99 percent
4 rate. We might refine it at some point. But for right now
5 we're at 95 percent, and we don't have all the sequences
6 sequenced, and we don't know if the self-reporting is
7 accurate. I mean, that's a -- to me, that presents an
8 immense problem.
9 As the Court indicated, I think the Caucasian subgroup
10 was something like 1,633 or some such number.
11 THE COURT: 1,833.
12 MR. GERAGOS: Was it 18? And if you have 1,800 and we
13 don't know how many of those may be Caucasian, may be
14 reporting what their father's is versus their mother's, or
15 maybe their parents got divorced and they don't like the
16 father so they report what the mother is, or they were
17 raised by an uncle who happens to be of a different lineage
18 and they consider themselves -- I mean, there is no way you
19 can have, I think, a confidence that 1,800 some odd people
20 in a population database is going to be accurate and then
21 say, well, do what Dr. Budowle does is say, oh, we've got a
22 confidence rate and it's 95 percent.
23 And give her her due, Dr. Fisher, at least was quite, I
24 thought, honest when pressed that, of course, she wants a
25 bigger database and that this is too small, and that there
26 has been changes in refinements in their thinking as this
27 has evolved.
28 The fact -- the very fact that the advent of
1437
1 heteroplasmy caused them to change from two base pair
2 difference -- one base pair difference to two base pair
3 differences and what is inclusion and exclusion, I think
4 speaks volumes here. This is in the infancy, the embryonic
5 stage -- no pun intended -- of this science.
6 So if the Court is going to find that mitochondrial DNA
7 meets the Kelly prongs for forensic use in a courtroom, then
8 I think the most that the Court could do is to do something
9 similar to what this criminalist did today with the
10 microscopic comparisons. I think that that's about as far
11 as one could go. He was saying, basically, I'm saying that
12 it's in a range or it's not being excluded. Ultimately, I
13 think at the end of the day I think that's all Dr. Fisher
14 felt comfortable with. She -- I said, you know, this is not
15 something that's identity. I forget where the quote was. I
16 had it in my little cheat sheets here. But I asked her a
17 question about, you're not saying that this is identity or
18 you're not saying that this is a match? She says, oh, no.
19 I said, did you read the papers this morning? She said, I
20 hadn't had time, or something to that effect.
21 Because there is this idea that, if you let it in and
22 start talking about these frequencies, that what jurors are
23 going to do is immediately associate mitochondrial DNA with
24 nuclear DNA, and instead of getting 13 markers versus one
25 marker, and people understand that, we're going to start
26 talking identity when that's not what it is. All it really
27 is as a tool, I think, is an exclusionary science. You can
28 say something is excluded. And that really has only evolved
1438
1 in -- what? -- the last four years I guess since the '98
2 changes in the protocol.
3 But the idea that we would get to 1 in 122 by creating
4 or crafting, I guess, this other category of inconclusive
5 one base pair differences to me is just such an artificial
6 construct that how somebody can say we're giving the
7 defendant the benefit of the doubt, but at the same time
8 we're not counting the population that's not excluded, it
9 makes no logical sense. I don't think from a legal
10 standpoint it is correct. There may be a scientific basis
11 for why they do it that way. They believe they're being
12 cautious. But certainly from a legal standpoint, it doesn't
13 make any sense in a courtroom. In a courtroom, as I said
14 before, the tie goes to the runner, the defendant. You
15 don't have a situation where you construct this third plane
16 or virtual reality out there, and all of a sudden, basically
17 what they've done is they've made inconclusives into
18 exclusions, because if you don't count those inconclusives,
19 then, in essence, you've just banished them to the exclusive
20 or the exclusion population.
21 And so based upon that and what the Court's tentative
22 is -- I won't get into or belabor what I consider to be the
23 problem with the heteroplasmy and the contamination. The
24 Court listened to this and was abundantly patient with us
25 for days and hours and hours on end. And if the Court has
26 reached its decision on the Kelly, I would just encourage
27 the Court to, once again, as I'm sure it already has, take a
28 look at what some of the other jurisdictions did, because
1439
1 they don't let, I don't believe, the FBI come in and report
2 the way that they're doing; and, even if some jurisdictions
3 do, I think that's a significant problem when you're talking
4 about relatively low confidence levels. You could never, I
5 don't think -- I think this Court would sustain an objection
6 if somebody got up there and starts talking about I'm
7 95 percent sure about this or that when talking about some
8 kind of mixing and matching. When Mr. Harris talks about
9 mixing apples and oranges, that's what we're doing. We're
10 mixing the idea of identity from nuclear DNA with the
11 matching, if you will, of mitochondrial, which is really
12 exclusionary.
13 So based upon that, I'd encourage the Court to follow
14 its tentative and basically allow them to maybe render an
15 opinion as to exclusion or the nonmatching of the sequences
16 and leave it at that.
17 THE COURT: One of the problems I see in doing that --
18 and I can't recall which case it was, and I think it was
19 more than one case. I think it was out of New York where
20 the expert only opined that the person could not be excluded
21 or something like that without giving a percentage, and the
22 Supreme Court came back and said you have to give a
23 percentage. That's the impression I got from that case.
24 Any comments on that?
25 MR. GERAGOS: Well, I think, if you have to give a
26 percentage, then I think what you have to do is -- if the --
27 I don't think the reasoning that, if I remember the case,
28 and I think it's the one that Mr. Harris was referring to.
1440
1 I believe that all they were doing is trying to give the
2 defendant the benefit of the doubt, so to speak. So if
3 you're going to give a percentage, I think you have to err
4 on the side of caution, and that's to include everything
5 that's not excluded, which would be the Shields method as
6 opposed to -- I don't even know I would call it the Budowle
7 method, because that seems to be in a state of flux. But
8 Dr. Shields did present a numbering system that I think
9 fairly takes into account what isn't excluded; and if it
10 isn't excluded, then it has to be within the world or the
11 population of possibilities.
12 I don't know that, given what mitochondrial DNA is, and
13 that decision that the Court's talking about, I don't
14 believe that there was as much testimony elicited regarding
15 the problems with the database as we had here. I believe
16 that was a rather truncated hearing and that the focus was
17 more on the science of it, if you will, rather than the
18 reporting of it; and if that's the case, I think Dr. Shields
19 put it accurately when he said, in fact, "The
20 statistical --" this was at page 555. "The statistical side
21 of things has changed even more than the interpretation."
22 And that really is, I think, the evolving. The fact
23 that they -- as the Court knows from the testimony here,
24 they've changed from the one base pair difference or zero
25 base pair difference to two base pair difference before they
26 make an exclusion. That I think gives the Court a
27 sufficient basis upon which to say, look, we're not
28 comfortable reporting this in percentages; we're just going
1441
1 to use it as an exclusion.
2 THE COURT: Any comments in response, Mr. Harris?
3 MR. HARRIS: Yes, very briefly.
4 I think if the Court really goes back and looks at the
5 Pappas case, I think the Court will see this as deja vu.
6 Dr. Shields testified. The Court can go through it and look
7 where he says FBI shouldn't be using this; it's not good;
8 it's not acceptable; and the statistics are bad. The Court
9 goes through, and one of the arguments that came about was,
10 this whole point of trying to apply the problems of all
11 these statistics and frequencies that happened with nuclear
12 DNA for years and years and years; and they go through and
13 they talk about the NRC report and they cite to the
14 Federal -- Federal Judicial Center's guidelines on what the
15 Federal Courts are doing. So in this particular case they
16 went and looked at it and specifically said:
17 "The counting method is not preferred for
18 calculating random match probabilities for
19 nuclear DNA, because nuclear DNA has
20 multiple low sides that may be analyzed
21 separately."
22 They site to the committee report number 2. That's the
23 second NRC report. They go on further to say:
24 "Because mitochondrial DNA consists of
25 only one marker or locus, that critique of
26 the counting method does not apply to
27 mitochondrial DNA."
28 So they go through and they talk about the same thing
1442
1 we're talking about here. Counting method, okay, everybody
2 agrees with that. You take the number; you apply it to the
3 database. Then they go through and they specifically talk
4 about a confidence interval. All it is is something that
5 describes the uncertainty because of the size of the
6 database. That's basic statistics.
7 So, again, if we stop mixing the apples and oranges
8 like it's being said that we do, and we talk about the
9 database separate from what's being reported out to the
10 counting method, even Dr. Shields can't complain about that.
11 He tries to by saying, well, inclusion/exclusion. Dr.
12 Budowle explained that quite well. If you cannot tell, you
13 cannot include someone and you cannot exclude someone. So
14 that I don't think there can be a debate there, because
15 Dr. Shields all he was saying was, well, I would do it
16 different. No one else agrees with him. There is no
17 evidence before the Court that anyone agrees with Dr.
18 Shields.
19 Dr. Budowle, Dr. Fisher said this is how it's done.
20 All of the cases that we've cited that are FBI cases and
21 several of them dealing with hairs say this is how it's
22 done, this calculation based on the counting method of
23 either exclusion, inconclusive or inclusion. So if you just
24 do the exact match and you report it out that way, even Dr.
25 Shields would be forced to admit he has to report it out
26 exactly like Dr. Fisher does. So, again, that's not an
27 issue.
28 Then it becomes, if you apply this confidence interval
1443
1 or the frequencies to it, what applies. That's basic
2 statistics. It gets back to not having the Kelly prong.
3 What I would suggest to the Court is that's really more of a
4 weight versus admissibility. As Venegas and some of the
5 other cases that I pointed out to in our points and
6 authorities, Fiero, what they point out to is, if it's
7 something that the jury can understand or something the
8 defense can put on an expert to counter, that's for the jury
9 to decide. That's -- it's a trier of fact issue, whether
10 they want to accept that as being within the realm of that
11 frequency; whether they want to believe that Bell curve
12 should be bigger at 99 percent, like Shields says, or 95,
13 like Budowle and Fisher say and everybody else in the
14 scientific community.
15 So under the circumstances, there again, you really get
16 back down to it of it just being Dr. Shields. And in the
17 Pappas case which the Court's had, Dr. Shields testified to
18 this and lost in Connecticut, and he's been losing over and
19 over on that particular point. At some point in time, the
20 Court has to say, there isn't a debate here, there isn't an
21 issue here. The FBI says that they're reporting it out as
22 conservative as they can within the realm of not making
23 stuff up like let's throw things in there, if we take this
24 out and we take this out and we take this out, would you
25 have an exclusion? Hypotheticals are not science.
26 The two experts from the FBI gave the Court enough to
27 find way beyond a preponderance of the evidence that it is
28 admissible beyond any objection. The counting method is
1444
1 appropriate. As the Allen case says, one witness in an
2 out-of-court -- out-of-state court case is sufficient for
3 the Court to meet the Kelly/Frye prong; and we think that
4 that's been done here, and I'm kind of beating a dead horse
5 here at this point in time.
6 We'd submit it to the Court.
7 THE COURT: I have less difficulty with the experts
8 stating 1 out of every 112 Caucasians would be expected to
9 have that sequence, and that's what the expert testified in
10 this case. But when they start gives a confidence level of
11 95 percent, doesn't that sort of give some overemphasis of
12 that position to the trier of fact? In other words, even in
13 a medical malpractice case, all the doctor can say is within
14 a reasonable medical certainty. They're not going to say
15 I'm 99 percent sure, I'm a hundred percent positive. That's
16 usually not allowed. I realize these other states have
17 allowed that, allowed the confidence level. But what
18 troubles me still is that confidence level is a small
19 database: 1,833. And being able to state 1 out of every
20 112, but then when that expert backs it up with a confidence
21 level of 95, that's where I have the difficulty. I realize
22 that's what they've done in other states, but maybe you can
23 sway me on that, too.
24 MR. HARRIS: Well, as to that particular point, again,
25 the confidence interval was not something that Dr. Shields
26 was complaining about either. If you really get down to
27 what he really did ultimately admit or testify to, he's not
28 saying there's a problem with using confidence intervals.1440
1 I believe that all they were doing is trying to give the
2 defendant the benefit of the doubt, so to speak. So if
3 you're going to give a percentage, I think you have to err
4 on the side of caution, and that's to include everything
5 that's not excluded, which would be the Shields method as
6 opposed to -- I don't even know I would call it the Budowle
7 method, because that seems to be in a state of flux. But
8 Dr. Shields did present a numbering system that I think
9 fairly takes into account what isn't excluded; and if it
10 isn't excluded, then it has to be within the world or the
11 population of possibilities.
12 I don't know that, given what mitochondrial DNA is, and
13 that decision that the Court's talking about, I don't
14 believe that there was as much testimony elicited regarding
15 the problems with the database as we had here. I believe
16 that was a rather truncated hearing and that the focus was
17 more on the science of it, if you will, rather than the
18 reporting of it; and if that's the case, I think Dr. Shields
19 put it accurately when he said, in fact, "The
20 statistical --" this was at page 555. "The statistical side
21 of things has changed even more than the interpretation."
22 And that really is, I think, the evolving. The fact
23 that they -- as the Court knows from the testimony here,
24 they've changed from the one base pair difference or zero
25 base pair difference to two base pair difference before they
26 make an exclusion. That I think gives the Court a
27 sufficient basis upon which to say, look, we're not
28 comfortable reporting this in percentages; we're just going
1441
1 to use it as an exclusion.
2 THE COURT: Any comments in response, Mr. Harris?
3 MR. HARRIS: Yes, very briefly.
4 I think if the Court really goes back and looks at the
5 Pappas case, I think the Court will see this as deja vu.
6 Dr. Shields testified. The Court can go through it and look
7 where he says FBI shouldn't be using this; it's not good;
8 it's not acceptable; and the statistics are bad. The Court
9 goes through, and one of the arguments that came about was,
10 this whole point of trying to apply the problems of all
11 these statistics and frequencies that happened with nuclear
12 DNA for years and years and years; and they go through and
13 they talk about the NRC report and they cite to the
14 Federal -- Federal Judicial Center's guidelines on what the
15 Federal Courts are doing. So in this particular case they
16 went and looked at it and specifically said:
17 "The counting method is not preferred for
18 calculating random match probabilities for
19 nuclear DNA, because nuclear DNA has
20 multiple low sides that may be analyzed
21 separately."
22 They site to the committee report number 2. That's the
23 second NRC report. They go on further to say:
24 "Because mitochondrial DNA consists of
25 only one marker or locus, that critique of
26 the counting method does not apply to
27 mitochondrial DNA."
28 So they go through and they talk about the same thing
1442
1 we're talking about here. Counting method, okay, everybody
2 agrees with that. You take the number; you apply it to the
3 database. Then they go through and they specifically talk
4 about a confidence interval. All it is is something that
5 describes the uncertainty because of the size of the
6 database. That's basic statistics.
7 So, again, if we stop mixing the apples and oranges
8 like it's being said that we do, and we talk about the
9 database separate from what's being reported out to the
10 counting method, even Dr. Shields can't complain about that.
11 He tries to by saying, well, inclusion/exclusion. Dr.
12 Budowle explained that quite well. If you cannot tell, you
13 cannot include someone and you cannot exclude someone. So
14 that I don't think there can be a debate there, because
15 Dr. Shields all he was saying was, well, I would do it
16 different. No one else agrees with him. There is no
17 evidence before the Court that anyone agrees with Dr.
18 Shields.
19 Dr. Budowle, Dr. Fisher said this is how it's done.
20 All of the cases that we've cited that are FBI cases and
21 several of them dealing with hairs say this is how it's
22 done, this calculation based on the counting method of
23 either exclusion, inconclusive or inclusion. So if you just
24 do the exact match and you report it out that way, even Dr.
25 Shields would be forced to admit he has to report it out
26 exactly like Dr. Fisher does. So, again, that's not an
27 issue.
28 Then it becomes, if you apply this confidence interval
1443
1 or the frequencies to it, what applies. That's basic
2 statistics. It gets back to not having the Kelly prong.
3 What I would suggest to the Court is that's really more of a
4 weight versus admissibility. As Venegas and some of the
5 other cases that I pointed out to in our points and
6 authorities, Fiero, what they point out to is, if it's
7 something that the jury can understand or something the
8 defense can put on an expert to counter, that's for the jury
9 to decide. That's -- it's a trier of fact issue, whether
10 they want to accept that as being within the realm of that
11 frequency; whether they want to believe that Bell curve
12 should be bigger at 99 percent, like Shields says, or 95,
13 like Budowle and Fisher say and everybody else in the
14 scientific community.
15 So under the circumstances, there again, you really get
16 back down to it of it just being Dr. Shields. And in the
17 Pappas case which the Court's had, Dr. Shields testified to
18 this and lost in Connecticut, and he's been losing over and
19 over on that particular point. At some point in time, the
20 Court has to say, there isn't a debate here, there isn't an
21 issue here. The FBI says that they're reporting it out as
22 conservative as they can within the realm of not making
23 stuff up like let's throw things in there, if we take this
24 out and we take this out and we take this out, would you
25 have an exclusion? Hypotheticals are not science.
26 The two experts from the FBI gave the Court enough to
27 find way beyond a preponderance of the evidence that it is
28 admissible beyond any objection. The counting method is
1444
1 appropriate. As the Allen case says, one witness in an
2 out-of-court -- out-of-state court case is sufficient for
3 the Court to meet the Kelly/Frye prong; and we think that
4 that's been done here, and I'm kind of beating a dead horse
5 here at this point in time.
6 We'd submit it to the Court.
7 THE COURT: I have less difficulty with the experts
8 stating 1 out of every 112 Caucasians would be expected to
9 have that sequence, and that's what the expert testified in
10 this case. But when they start gives a confidence level of
11 95 percent, doesn't that sort of give some overemphasis of
12 that position to the trier of fact? In other words, even in
13 a medical malpractice case, all the doctor can say is within
14 a reasonable medical certainty. They're not going to say
15 I'm 99 percent sure, I'm a hundred percent positive. That's
16 usually not allowed. I realize these other states have
17 allowed that, allowed the confidence level. But what
18 troubles me still is that confidence level is a small
19 database: 1,833. And being able to state 1 out of every
20 112, but then when that expert backs it up with a confidence
21 level of 95, that's where I have the difficulty. I realize
22 that's what they've done in other states, but maybe you can
23 sway me on that, too.
24 MR. HARRIS: Well, as to that particular point, again,
25 the confidence interval was not something that Dr. Shields
26 was complaining about either. If you really get down to
27 what he really did ultimately admit or testify to, he's not
28 saying there's a problem with using confidence intervals.
|
|
1430
1 point out to the Court that it really boils down to the
2 credibility of Dr. Shields.
3 THE COURT: You have 15 minutes left. But let me ask.
4 You've cited People's Number 22. Which page were you
5 citing? Or did you mean the transcript, which was twenty --
6 MR. HARRIS: 22 is the validation study of the FBI.
7 THE COURT: Correct. Which page did you cite? You
8 cited a page. I thought you said page 71. There is no 71
9 there.
10 MR. HARRIS: I have on this particular copy at the
11 top --
12 THE COURT: I see it now. The copy I was looking at
13 it's faded out, but 72 is there. Okay.
14 MR. HARRIS: Has a table underneath that?
15 THE COURT: Correct.
Argument/GERAGOS
16 Mr. Geragos.
17 MR. GERAGOS: Thank you, Your Honor.
18 If I understand Mr. Harris correctly, he wants you to
19 accept Budowle and Fisher and throw out Shields. And his
20 reason for throwing out Shields is that because Shields is
21 somebody who does research in the area as opposed to
22 somebody who does forensics. The whole idea is whether or
23 not this application of this science is appropriate to
24 forensics, number one, and, number two, whether or not the
25 way it's being reported -- and I think if I understand the
26 Court's tentative correctly, whether the way it's being
27 reported is appropriate in a court of law; and, clearly,
28 it's not Dr. Shields who has the only hesitation with the
1431
1 way that it's being reported in a court of law.
2 I specifically asked Dr. Budowle and I think that was
3 at page 9 -- my reference is 952, regarding the database and
4 the size of it, asked:
5 "The reliable -- the mtDNA is too small at
6 this time to provide estimates of the
7 frequency of occurrence of most mtDNA
8 sequences in the population?"
9 Answer by Budowle:
10 "I have to agree with that, Your Honor,
11 because most will not be seen in the small
12 size database, forgetting the actual
13 frequency. You can still make an upper
14 bound on the frequency by the observation,
15 but you would not be able to see all of the
16 mitochondrial types unless you do an
17 exceedingly large amount."
18 I then asked:
19 "And as a result of you agreeing with that
20 statement, would you also then agree with
21 the statement that to date, the number of
22 mtDNA sequences present in the general
23 population is unknown because not all
24 sequences have been observed?"
25 He says he agrees with that.
26 He also agrees at page 952 and 953, that actual
27 frequency can't be given, that they only give what they call
28 an upper bound.
1432
1 He agreed at 953 when I said:
2 "Would you also agree with the
3 statement -- the following statement: The
4 fact that small databases are not effective
5 tools for estimating frequency for rare
6 events?"
7 His answer:
8 "Absolutely right again. We have to give
9 you the upper bound, the more conservative,
10 which would be greater than those -- most
11 rare events will ever be, in favor of being
12 more conservative."
13 I then asked at 953:
14 "Would you agree that the FBI -- as the
15 FBI database grows in size, the frequency
16 estimates for individual mtDNA profiles
17 would become more and more refined and
18 eventually lead to reliable population
19 frequency?"
20 "Answer: I agree with that, but it's
21 going to be a very large database."
22 Specifically Dr. Fisher said -- I asked her, and I
23 believe this is on page 92 of the first day of the
24 transcripts.
25 "Question: Okay. And, in fact,
26 mitochondrial DNA has a limitation, and the
27 limitation is that the only frequency that
28 you can determine is based upon the size of
1433
1 the database that you're operating from;
2 isn't that correct?"
3 "Answer: The statistics that we can give
4 on the frequency are limited by the size of
5 the database."
6 "Question: Okay. So if we come back a
7 month from now, we may have 6,003 or some
8 other such number?"
9 Her answer:
10 "I would love it, but I doubt it's going
11 to be that quick."
12 I asked:
13 "Is it a fair statement that based upon
14 the rate of typing, if you will, that you're
15 not expanding this database at a very quick
16 pace?"
17 Her answer:
18 "Unfortunately, that's true."
19 I said as a -- and I believe this is also on page -- on
20 the second day of transcripts, page 205 and 206:
21 "Is it fair to say that, as of today, the
22 5,071-person database that is being accessed
23 by this computer program is, to your mind,
24 inadequate?"
25 Answer, and this is by Dr. Fisher:
26 "It's not inadequate. It's smaller than
27 we would like, but it's certainly useful for
28 estimating population frequencies."
1434
1 And then she goes on to say:
2 "I would like large enough that we could
3 see every mitochondrial type. I don't know
4 how large that has to be. We won't know
5 until it is that large."
6 "We would like it to be larger."
7 The problem you've got, and I think the Court is zoned
8 in on it appropriately, is this is a criminal case. It is a
9 capital case. Before you start allowing somebody to come in
10 and opine, there has to be, I believe, some basis upon which
11 to do it. When they say themselves that their database is
12 too small, when Dr. Budowle says he attends a conference
13 with -- I think it was Bandelt, and he presents a paper or a
14 presentation, whatever the format was, and they criticize
15 the forensic community for this what he calls an artificial
16 construct, I think, or somehow setting up barriers to these
17 other databases, when there's obviously nothing sacrosanct
18 about the FBI's database. We know for a fact that, when I
19 asked Dr. Fisher is it entirely possible that somebody can
20 self-report as a Caucasian when they're Hispanic, they can
21 self-report as an African-American when they're not or
22 vice-versa. So it's not as if anybody is checking these
23 things, that there's some kind of a higher threshold from
24 the FBI database. Dr. Fisher was quite candid, out of the
25 seven contributing laboratories, there's only two that she's
26 ever been to, and that's the FBI and the Armed Forces. She
27 hasn't even been to the other ones.
28 The problem is, they then set up, in addition to that,
1435
1 this idea that, well, we're only going to count --
2 Mr. Harris' counting method -- zero base pair difference and
3 I'm still sitting here trying to figure out what an
4 exclusion versus an inconclusive versus an inclusion is.
5 Where I come from, when you open up the dictionary, it's a
6 two-sided coin. It isn't a three-sided. You don't have a
7 situation where something is either excluded, inconclusive
8 or included. It's either included or excluded. If it's
9 included, meaning zero base pair differences and one base
10 pair difference, then it has to -- by definition, and
11 Dr. Budowle admitted this, it was not the most conservative
12 estimate to the defendant.
13 I would also submit -- and I apologize because I did
14 not do this. But I believe in many of the other
15 jurisdictions where mitochondrial DNA has been admitted that
16 specifically Dr. Shields' interpretation of the statistics
17 has been adopted in those jurisdictions; and if the Court
18 wants, over the weekend I will find that. But I do not
19 believe it is the case where -- in several jurisdictions
20 where, if mitochondrial is let in, that the FBI is allowed
21 to report it in the way that it does.
22 There are, I think obvious, inherent limitations, and I
23 think built in and I can't imagine that the People would
24 want evidence that comes in and starts talking about
25 upper-bound 95 percent confidence rates in a capital murder
26 case. I mean, to me, that's just mind-boggling.
27 There are rules. You don't decide cases by lot, CALJIC
28 Instructions, by chance; and to some degree, that's what the
1436
1 People are inviting here. The People are asking you decide
2 this case by chance. You know, eventually maybe some
3 defendant ten years from now, we might get to a 99 percent
4 rate. We might refine it at some point. But for right now
5 we're at 95 percent, and we don't have all the sequences
6 sequenced, and we don't know if the self-reporting is
7 accurate. I mean, that's a -- to me, that presents an
8 immense problem.
9 As the Court indicated, I think the Caucasian subgroup
10 was something like 1,633 or some such number.
11 THE COURT: 1,833.
12 MR. GERAGOS: Was it 18? And if you have 1,800 and we
13 don't know how many of those may be Caucasian, may be
14 reporting what their father's is versus their mother's, or
15 maybe their parents got divorced and they don't like the
16 father so they report what the mother is, or they were
17 raised by an uncle who happens to be of a different lineage
18 and they consider themselves -- I mean, there is no way you
19 can have, I think, a confidence that 1,800 some odd people
20 in a population database is going to be accurate and then
21 say, well, do what Dr. Budowle does is say, oh, we've got a
22 confidence rate and it's 95 percent.
23 And give her her due, Dr. Fisher, at least was quite, I
24 thought, honest when pressed that, of course, she wants a
25 bigger database and that this is too small, and that there
26 has been changes in refinements in their thinking as this
27 has evolved.
28 The fact -- the very fact that the advent of
1437
1 heteroplasmy caused them to change from two base pair
2 difference -- one base pair difference to two base pair
3 differences and what is inclusion and exclusion, I think
4 speaks volumes here. This is in the infancy, the embryonic
5 stage -- no pun intended -- of this science.
6 So if the Court is going to find that mitochondrial DNA
7 meets the Kelly prongs for forensic use in a courtroom, then
8 I think the most that the Court could do is to do something
9 similar to what this criminalist did today with the
10 microscopic comparisons. I think that that's about as far
11 as one could go. He was saying, basically, I'm saying that
12 it's in a range or it's not being excluded. Ultimately, I
13 think at the end of the day I think that's all Dr. Fisher
14 felt comfortable with. She -- I said, you know, this is not
15 something that's identity. I forget where the quote was. I
16 had it in my little cheat sheets here. But I asked her a
17 question about, you're not saying that this is identity or
18 you're not saying that this is a match? She says, oh, no.
19 I said, did you read the papers this morning? She said, I
20 hadn't had time, or something to that effect.
21 Because there is this idea that, if you let it in and
22 start talking about these frequencies, that what jurors are
23 going to do is immediately associate mitochondrial DNA with
24 nuclear DNA, and instead of getting 13 markers versus one
25 marker, and people understand that, we're going to start
26 talking identity when that's not what it is. All it really
27 is as a tool, I think, is an exclusionary science. You can
28 say something is excluded. And that really has only evolved
1438
1 in -- what? -- the last four years I guess since the '98
2 changes in the protocol.
3 But the idea that we would get to 1 in 122 by creating
4 or crafting, I guess, this other category of inconclusive
5 one base pair differences to me is just such an artificial
6 construct that how somebody can say we're giving the
7 defendant the benefit of the doubt, but at the same time
8 we're not counting the population that's not excluded, it
9 makes no logical sense. I don't think from a legal
10 standpoint it is correct. There may be a scientific basis
11 for why they do it that way. They believe they're being
12 cautious. But certainly from a legal standpoint, it doesn't
13 make any sense in a courtroom. In a courtroom, as I said
14 before, the tie goes to the runner, the defendant. You
15 don't have a situation where you construct this third plane
16 or virtual reality out there, and all of a sudden, basically
17 what they've done is they've made inconclusives into
18 exclusions, because if you don't count those inconclusives,
19 then, in essence, you've just banished them to the exclusive
20 or the exclusion population.
21 And so based upon that and what the Court's tentative
22 is -- I won't get into or belabor what I consider to be the
23 problem with the heteroplasmy and the contamination. The
24 Court listened to this and was abundantly patient with us
25 for days and hours and hours on end. And if the Court has
26 reached its decision on the Kelly, I would just encourage
27 the Court to, once again, as I'm sure it already has, take a
28 look at what some of the other jurisdictions did, because
1439
1 they don't let, I don't believe, the FBI come in and report
2 the way that they're doing; and, even if some jurisdictions
3 do, I think that's a significant problem when you're talking
4 about relatively low confidence levels. You could never, I
5 don't think -- I think this Court would sustain an objection
6 if somebody got up there and starts talking about I'm
7 95 percent sure about this or that when talking about some
8 kind of mixing and matching. When Mr. Harris talks about
9 mixing apples and oranges, that's what we're doing. We're
10 mixing the idea of identity from nuclear DNA with the
11 matching, if you will, of mitochondrial, which is really
12 exclusionary.
13 So based upon that, I'd encourage the Court to follow
14 its tentative and basically allow them to maybe render an
15 opinion as to exclusion or the nonmatching of the sequences
16 and leave it at that.
17 THE COURT: One of the problems I see in doing that --
18 and I can't recall which case it was, and I think it was
19 more than one case. I think it was out of New York where
20 the expert only opined that the person could not be excluded
21 or something like that without giving a percentage, and the
22 Supreme Court came back and said you have to give a
23 percentage. That's the impression I got from that case.
24 Any comments on that?
25 MR. GERAGOS: Well, I think, if you have to give a
26 percentage, then I think what you have to do is -- if the --
27 I don't think the reasoning that, if I remember the case,
28 and I think it's the one that Mr. Harris was referring to.
1440
1 I believe that all they were doing is trying to give the
2 defendant the benefit of the doubt, so to speak. So if
3 you're going to give a percentage, I think you have to err
4 on the side of caution, and that's to include everything
5 that's not excluded, which would be the Shields method as
6 opposed to -- I don't even know I would call it the Budowle
7 method, because that seems to be in a state of flux. But
8 Dr. Shields did present a numbering system that I think
9 fairly takes into account what isn't excluded; and if it
10 isn't excluded, then it has to be within the world or the
11 population of possibilities.
12 I don't know that, given what mitochondrial DNA is, and
13 that decision that the Court's talking about, I don't
14 believe that there was as much testimony elicited regarding
15 the problems with the database as we had here. I believe
16 that was a rather truncated hearing and that the focus was
17 more on the science of it, if you will, rather than the
18 reporting of it; and if that's the case, I think Dr. Shields
19 put it accurately when he said, in fact, "The
20 statistical --" this was at page 555. "The statistical side
21 of things has changed even more than the interpretation."
22 And that really is, I think, the evolving. The fact
23 that they -- as the Court knows from the testimony here,
24 they've changed from the one base pair difference or zero
25 base pair difference to two base pair difference before they
26 make an exclusion. That I think gives the Court a
27 sufficient basis upon which to say, look, we're not
28 comfortable reporting this in percentages; we're just going
1441
1 to use it as an exclusion.
2 THE COURT: Any comments in response, Mr. Harris?
3 MR. HARRIS: Yes, very briefly.
4 I think if the Court really goes back and looks at the
5 Pappas case, I think the Court will see this as deja vu.
6 Dr. Shields testified. The Court can go through it and look
7 where he says FBI shouldn't be using this; it's not good;
8 it's not acceptable; and the statistics are bad. The Court
9 goes through, and one of the arguments that came about was,
10 this whole point of trying to apply the problems of all
11 these statistics and frequencies that happened with nuclear
12 DNA for years and years and years; and they go through and
13 they talk about the NRC report and they cite to the
14 Federal -- Federal Judicial Center's guidelines on what the
15 Federal Courts are doing. So in this particular case they
16 went and looked at it and specifically said:
17 "The counting method is not preferred for
18 calculating random match probabilities for
19 nuclear DNA, because nuclear DNA has
20 multiple low sides that may be analyzed
21 separately."
22 They site to the committee report number 2. That's the
23 second NRC report. They go on further to say:
24 "Because mitochondrial DNA consists of
25 only one marker or locus, that critique of
26 the counting method does not apply to
27 mitochondrial DNA."
28 So they go through and they talk about the same thing
1442
1 we're talking about here. Counting method, okay, everybody
2 agrees with that. You take the number; you apply it to the
3 database. Then they go through and they specifically talk
4 about a confidence interval. All it is is something that
5 describes the uncertainty because of the size of the
6 database. That's basic statistics.
7 So, again, if we stop mixing the apples and oranges
8 like it's being said that we do, and we talk about the
9 database separate from what's being reported out to the
10 counting method, even Dr. Shields can't complain about that.
11 He tries to by saying, well, inclusion/exclusion. Dr.
12 Budowle explained that quite well. If you cannot tell, you
13 cannot include someone and you cannot exclude someone. So
14 that I don't think there can be a debate there, because
15 Dr. Shields all he was saying was, well, I would do it
16 different. No one else agrees with him. There is no
17 evidence before the Court that anyone agrees with Dr.
18 Shields.
19 Dr. Budowle, Dr. Fisher said this is how it's done.
20 All of the cases that we've cited that are FBI cases and
21 several of them dealing with hairs say this is how it's
22 done, this calculation based on the counting method of
23 either exclusion, inconclusive or inclusion. So if you just
24 do the exact match and you report it out that way, even Dr.
25 Shields would be forced to admit he has to report it out
26 exactly like Dr. Fisher does. So, again, that's not an
27 issue.
28 Then it becomes, if you apply this confidence interval
1443
1 or the frequencies to it, what applies. That's basic
2 statistics. It gets back to not having the Kelly prong.
3 What I would suggest to the Court is that's really more of a
4 weight versus admissibility. As Venegas and some of the
5 other cases that I pointed out to in our points and
6 authorities, Fiero, what they point out to is, if it's
7 something that the jury can understand or something the
8 defense can put on an expert to counter, that's for the jury
9 to decide. That's -- it's a trier of fact issue, whether
10 they want to accept that as being within the realm of that
11 frequency; whether they want to believe that Bell curve
12 should be bigger at 99 percent, like Shields says, or 95,
13 like Budowle and Fisher say and everybody else in the
14 scientific community.
15 So under the circumstances, there again, you really get
16 back down to it of it just being Dr. Shields. And in the
17 Pappas case which the Court's had, Dr. Shields testified to
18 this and lost in Connecticut, and he's been losing over and
19 over on that particular point. At some point in time, the
20 Court has to say, there isn't a debate here, there isn't an
21 issue here. The FBI says that they're reporting it out as
22 conservative as they can within the realm of not making
23 stuff up like let's throw things in there, if we take this
24 out and we take this out and we take this out, would you
25 have an exclusion? Hypotheticals are not science.
26 The two experts from the FBI gave the Court enough to
27 find way beyond a preponderance of the evidence that it is
28 admissible beyond any objection. The counting method is
1444
1 appropriate. As the Allen case says, one witness in an
2 out-of-court -- out-of-state court case is sufficient for
3 the Court to meet the Kelly/Frye prong; and we think that
4 that's been done here, and I'm kind of beating a dead horse
5 here at this point in time.
6 We'd submit it to the Court.
7 THE COURT: I have less difficulty with the experts
8 stating 1 out of every 112 Caucasians would be expected to
9 have that sequence, and that's what the expert testified in
10 this case. But when they start gives a confidence level of
11 95 percent, doesn't that sort of give some overemphasis of
12 that position to the trier of fact? In other words, even in
13 a medical malpractice case, all the doctor can say is within
14 a reasonable medical certainty. They're not going to say
15 I'm 99 percent sure, I'm a hundred percent positive. That's
16 usually not allowed. I realize these other states have
17 allowed that, allowed the confidence level. But what
18 troubles me still is that confidence level is a small
19 database: 1,833. And being able to state 1 out of every
20 112, but then when that expert backs it up with a confidence
21 level of 95, that's where I have the difficulty. I realize
22 that's what they've done in other states, but maybe you can
23 sway me on that, too.
24 MR. HARRIS: Well, as to that particular point, again,
25 the confidence interval was not something that Dr. Shields
26 was complaining about either. If you really get down to
27 what he really did ultimately admit or testify to, he's not
28 saying there's a problem with using confidence intervals.
1445
1 The formula that was given to the Court by Dr. Fisher, how
2 it was explained by Dr. Shields, under those circumstances,
3 they both admitted that that's basic statistics. So what
4 you do is you apply something and say this is the realm of
5 possibility of it being there and it being accurate. It's
6 not saying that it is. It's just a statistical probability.
7 And that, again, is the argument that we're making that it
8 should go to weight, instead of the admissibility fact,
9 because that's something that they can bring in Dr. Shields
10 and they can explain to the jury, we think it should be 99
11 percent to be more conservative. Not saying that nobody can
12 give any statistics. And if the Court wants to analogize
13 this to some other point, this has been done for years when
14 it does come to blood markers. Somebody will come in and
15 say 30 percent of the population has a blood type or this
16 blood type. Courts have been letting that in forever,
17 because that's something that the jury can understand.
18 I think the jury -- we have to give them credit, and I
19 think that they can understand basic statistics when it's
20 given to them in somewhat of a less dry, scientific format
21 than we're doing here for a Kelly hearing; and I think both
22 Fisher and Shields have shown that they're both more than
23 capable of doing bad Power Point presentations and putting
24 little things up there trying to explain it for the jury.
25 That's why I think that's a weight versus admissibility.
26 THE COURT: One last question, though, one thing that
27 Dr. Fisher testified to also covered that 1 out of every 159
28 Hispanics would have that sequence. Now, is that relevant
1446
1 to our case? Why should I even consider that?
2 MR. HARRIS: I think it has to be considered, because
3 when you look at the cases and you look at what the
4 Dr. Budowle and Dr. Fisher and Dr. Shields were talking
5 about, you want to give the range, so the jury can
6 determine -- I think -- I don't recall which expert it was
7 at this point in time, to be honest. But one of them
8 specifically said we don't know what the makeup of Modesto
9 is. That's up for the jury to decide, for them to establish
10 or use their common sense to apply what they know of the
11 community against what that database might be. So if you
12 report all of the databases, that's something that's, again,
13 for the trier of fact, and I think that's a reasonable
14 argument from the experts.
15 THE COURT: Shouldn't the database represent who your
16 target is, in this case, the defendant or Laci Peterson,
17 which we know are Caucasian?
18 MR. HARRIS: Well, the database that -- if you're
19 talking about the entire database or just talking about the
20 Caucasian group?
21 THE COURT: I'm saying, why should we even consider the
22 Hispanic number?
23 MR. HARRIS: Again, I think it's probably because, as
24 the experts were talking about, Mr. Geragos has been
25 arguing, that you have the issue of, well, are there
26 outliers, the term that Dr. Fisher used, so you want to give
27 that range of probabilities; and there's not a significant
28 number of difference, so there's nothing that's going to
1447
1 be -- like the old problems with NRC 1 and NRC 2, dealing
2 with product rule calculations. This, again, is a
3 straightforward computation. It shows up in the database,
4 if we make it down in into the major subgroups this many
5 times, the jury can make that determination and look at the
6 individuals and say, this is what their classification is,
7 this is the number that we're going to use.
8 THE COURT: Since I covered a couple new areas,
9 Mr. Geragos, I'll have you have the last say.
10 MR. GERAGOS: Thank you, Your Honor.
11 I was going to pick up on, if I could, the first thing
12 that Mr. Harris addressed in response to your question, and
13 I think that's precisely the kind of hidden or Trojan horse
14 problem with doing what they -- the prosecution proposes to
15 do. You have a criminal case beyond a reasonable doubt
16 standard. You have -- you start talking about upper-bound
17 confidence rates of 95 percent. You start talking about,
18 you know, Shield -- not Shields, but Budowle's answer is in
19 response to currently the FBI currently does not provide
20 frequency estimates. He says, "We only give an upper bound
21 of how high it could be with confidence, not what the actual
22 frequency is."
23 That's where -- kind of the essence of what the problem
24 is. To allow somebody to come in here, start talking about
25 1 in 112 with a 95 percent confidence rate in a criminal
26 case, I don't believe would pass muster, especially in a
27 capital case. The problem that you have is all of the
28 experts agree that they want larger databases. Dr. Fisher
1448
1 specifically said, when pressed on it, that we don't even
2 know -- I mean, we've got basically geographic regions which
3 are contributing the samples. I agree with Mr. Harris, with
4 the blood marker stuff, you have -- I mean, think of the --
5 the last time I did one of those cases, I think somebody
6 estimated that there was 10 million blood samples that have
7 been looked at or something of that nature across the
8 country, in hospitals and all other settings. That isn't
9 the situation here. Here we have selected samples from
10 certain geographical regions that have been entered into a
11 database that Dr. Fisher concedes is woefully small and not
12 expanding large enough; and they want to say let's just
13 throw it up and let a jury decide what Modesto looks like.
14 To me, that's mind-boggling.
15 The only thing that they should be able to do, I think
16 if the Court has found that the Kelly prongs has been met,
17 is to use this as an exclusionary science device. Certainly
18 this science has not evolved to the point where the blood
19 markers have, not even close. This is a science, as I said
20 before, that's in its infancy in terms of the database for
21 sure; and there's certainly -- and I think post the New York
22 decision that the Court cited has been Bandelt's criticism,
23 and that in and of itself can give this Court pause before
24 allowing anybody to deal or base this on the database.
25 Certainly the idea that Budowle came in here and says
26 that he's attempting to get the method, algorithm method
27 that Bandelt has devised, and certainly because he does not
28 dispute that Bandelt is one of the foremost people in the
1449
1 field and that Bandelt is criticizing the current databases,
2 that basis alone takes you outside of the New York Supreme
3 Court reasoning.
4 I would urge the Court, if it's going to say that the
5 prongs have been satisfied, to leave it at that on an
6 exclusionary basis, because otherwise we're really talking
7 about just pure guesswork.
8 THE COURT: I'll take the matter under submission.
9 Rule --
10 MR. HARRIS: Your Honor, could I just respond to that?
11 I'll try to be brief.
12 THE COURT: It's your burden, so, briefly, you can.
13 MR. HARRIS: All right. I think counsel's
14 misstatement -- or statement is a misstatement, in that Dr.
15 Shields also said that you need to report out the frequency,
16 and he said that he was glad to see that Dr. Fisher had done
17 what she had done. So there isn't a dispute there, even
18 with the defense's own expert, how it was done in this
19 particular case. The database is not the statistics.
20 Counsel keeps coming back to the database saying, well, we
21 don't know about this and we don't know about that. There
22 is no dispute in the scientific or forensic scientific
23 community about the size of the database. The issue that
24 the Court's asking about is the statistics based on the size
25 of that.
26 When the Court goes through all of these cases and sees
27 that this is what Dr. Shields has raised before, the Court
28 will come back to the same place that the FBI's way of doing
1449
28
1450
1 this is conservative. So you have the one out of whatever
2 number. You have a frequency interval to say how reliable
3 that is. That's something that jurors can understand. Then
4 the only issue becomes: Do they get to put on an expert
5 that says it should be 99 percent instead of 95 percent?
6 And I'll submit it with that.
7 THE COURT: See you Monday morning at 9:30.
8 MR. GERAGOS: Thank you, Your Honor.
9 THE COURT: Defendant's remanded.
10 Do you have who you're calling?
11 MR. DISTASO: The pathologist, Your Honor.
12 THE COURT: Is that it?
13 MR. DISTASO: What?
14 THE COURT: Is that it?
15 MR. DISTASO: Well, I asked Mr. Geragos, and he said he
16 was going to --
17 MR. GERAGOS: Spend a little bit of time.
18 MR. DISTASO: -- spend a little bit of time. So I'll
19 have some -- I'll have Detective Hendee ready to go in case
20 we get there.
21 THE COURT: We'll start with the pathologist, then,
22 after I make my ruling.
23 (Evening recess at 3:42 p.m.)
24 ---o0o--- |
|
|
|