P
R O C E E D I N G
[In the Superior Court of Gwinnett County,
Lawrenceville, Georgia; 9:00 a.m., Wednesday, August 30, 1995; the STATE OF
GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury Trial, Judge Fred
A. Bishop, Jr., presiding.]
THE
COURT: Good morning. Anything else to take up this morning?
MR.
SMEAL: Not from the state, Your Honor.
THE
COURT: All right.
MR.
MOORE: Your Honor, there were a couple
of things that we never did tender yesterday, I don't believe, Defendant's
Exhibit Number 70 and Defendant's Exhibit Number 60. Defendant's Exhibit Number 70 was Brian Reddy's statement.
THE
COURT: I show Defendant's 70 as being
admitted without objection for the record only.
MR.
MOORE: I wasn't sure, Your Honor. Defendant's Number 60, also, I don't believe
we've tendered.
THE
COURT: Mary, do you show 70 admitted?
THE
REPORTER: I show 70 admitted, but not
60.
THE
COURT: 70's in for the record. Okay.
MR.
MOORE: Defendant's Number 60, which is
Brian Reddy's log sheet for April 15, a blowup of it.
THE
COURT: I don't show that being
identified. Is that the one you showed
Investigator Burnette and he said he didn't know what it was? Has anybody identified it?
MR.
MOORE: Your Honor, I'm not positive,
but the state has one, I believe it's State's 137, which is an identical, the
small version that's not blown up that was shown to the witnesses and
identified.
THE
COURT: All right. And that's state's which one?
MR.
DAVIS: 137, Your Honor.
MR.
MOORE: The 15th.
THE
COURT: Okay. I show that as Officer Reddy's daily log sheet. I don't show it being admitted either.
MR.
MOORE: State's 137 is your copy of the
log sheet. Do y'all intend to tender
that?
MR.
DAVIS: We do intend to tender that for
admission.
THE
COURT: All right. Do you want to stipulate them both in for
the record?
MR.
DAVIS: No. For the record only?
THE
COURT: Yes.
MR.
DAVIS: That's fine. Yes, sir, we do.
THE
COURT: Mr. Moore?
MR.
MOORE: That's fine, Your Honor.
THE
COURT: All right. Defendant's 60 is admitted without objection
at this point, and that's for the record only.
And State's 137 is admitted without objection for the record only. All right.
Anything else, Mr. Moore?
MR.
MOORE: Your Honor, I believe Ms. Rogan
had an objection to the testimony by Dr. Frist.
MS.
ROGAN: Yes. I neglected to do that at the time, but we would renew our
objection and motion for mistrial based on the testimony yesterday for Dr.
Frist about an alleged blood spatter pattern on the raincoat.
We
do not believe the state has laid a sufficient foundation for expert testimony
on that issue in that neither of the people who they've tendered as witnesses
in this field were able to identify the marks they claimed to have seen as
blood and certainly not as human blood.
So on that basis, we believe it was extremely prejudicial for that
testimony to come in.
THE
COURT: All right. Mr. Smeal, Mr. Davis?
MR.
SMEAL: Well, Your Honor, Kelly Fite
testified as to his qualifications in the area of high velocity blood
spatter. He was also asked a
hypothetical which included prior testimony by Jennifer Wilson that there were
certain markings on the raincoat that were --
THE
COURT: Okay. Now, that's Kelly Fite.
Her objection is toward Dr. Frist, I believe.
MR.
SMEAL: I took the objection to be -- I
think she mentioned at one point both witnesses, but in any event Dr. Frist did
testify as a medical examiner that he has viewed blood on many occasions and
knows what blood marks look like, and based upon that training and experience,
he certainly is a qualified individual to say that the marks are consistent
with blood; that is, he gave those qualifications and he so testified on that
basis. Your Honor, the state feels that
testimony was appropriate for this jury to hear.
THE
COURT: Your motion is denied. Anything else?
MR.
MOORE: No, Your Honor.
THE
COURT: All right. Is the state ready?
MR.
SMEAL: Yes, Your Honor.
THE
COURT: Defendant ready?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Bring the jury back in,
please. Mr. Goff, you want to re-take
the stand, please.
[The
witness stepped to the stand.]
[The
jurors were escorted to the courtroom.]
THE
COURT: Good morning, ladies and
gentlemen.
[Jurors
respond]
THE
COURT: Everybody find their pens, pads,
and notes? All set?
All
right. Mr. Goff, I'll remind you you've
been sworn and remain under oath.
THE
WITNESS: Yes, sir.
THE
COURT: Go ahead, please.
MR.
SMEAL: Thank you, Your Honor.
Whereupon,
having
been previously called as a witness and duly sworn, was examined and testified
further, as follows:
DIRECT EXAMINATION - RESUMED
BY
MR. SMEAL:
Q. Mr. Goff, when we recessed court yesterday
you had just testified to some figures, specifically a frequency calculation
that you did as the result of your DNA analysis in this case; is that correct?
A. Yes, sir.
Q. And you mentioned a figure one in ten
billion; is that correct?
A. That's correct.
Q. What I'd like to do is to have you explain
for the members of the jury how you arrived at that figure. If we could digress for one second, do you
have an analogy that you can use to explain the method of calculating that
frequency for the jury?
A. Yes, sir, I do.
Q. Okay.
Would you please explain in the simplest terms you can how -- what's the
method for arriving at such a frequency calculation.
A. Okay.
When you do a frequency calculation, you have to have a database, and
you will compare characteristics that you have on your sample to your
database. Say you had a database of ten
people, something I can do real easily in my head, and you were going to look
at the color of clothing that they're wearing, and we'll consider that color of
clothing as independent, that, you know, you're not color-coordinated so you
don't care what color clothes you have on.
You just grab clothes in the morning and put them on.
So
if you went in your database and you wanted to look and see how many of the ten
had on, say, a red shirt, and you said one out of the ten has on a red
shirt. So you'd have one out of your
ten with a red shirt on. Then you went
in and looked at the database again and, say, you're looking for a pair of blue
pants. Well, one out of ten has blue
pants on.
And
then you also look at shoe color, and you're looking for black shoes, and one
out of ten have black shoes on. So you
have three factors that are independent.
So you multiply one over ten times one-tenth times one-tenth, and you'd
end up with one out of a thousand. So
you'd end up, if you went out and looked for somebody that had on a red shirt,
blue pants, and black shoes, if you used this database, you would say that a
frequency of one out of every one thousand people would have that combination
of colors on when they dress in the morning.
Q. And did you perform a similar frequency
calculation in this case with respect to the six probes that you used?
A. Yes, sir.
Q. Mr. Goff, if I could have you come down from
the witness stand for a minute and maybe you could bring your notes with you.
A. [The witness stepped down from the stand.]
Q. I believe you have previously testified that
you calculated, on the basis of your database information you had, you
calculated a frequency with respect to each probe; is that your testimony?
A. Yes, that's right.
Q. Okay.
And did you do that with respect or with the use of more than one
database?
A. Yes, sir.
We -- I calculated using a Caucasian database and a black database.
Q. And does the crime lab have both types of
databases and use both types of databases?
A. Yes, sir.
Q. And how has that information -- how was that
information collected with respect to those databases?
A. We put out a request to health clinics,
particularly those that weren't here in the metro Atlanta area, and asked them
to submit blood samples, just asked the people who came in to volunteer to give
a sample of their blood anonymously, and the samples were marked with the race,
and I think the sex was also indicated, but that really doesn't play any part
in what we do. And the samples were
submitted, and we extracted the DNA from those samples and established the
banding patterns and then recorded that information to our database in the
computer.
Q. And that information is kept on the GBI's --
the crime lab's computer?
A. Yes, sir.
Q. Okay.
And did you use that information to arrive at the frequency calculations
in this case?
A. Yes, sir.
Q. Okay.
Could you show the members of the jury, and I'll hand you a -- let's
see. You have a pen. Could you write in the frequency numbers
that you utilized in this case to arrive at your overall frequency calculation
by writing in, with respect to the Caucasian and black databases, the frequency
calculations for each probe?
A. Yes, sir.
Q. Can you do that?
A. Yes, sir.
Q. Okay.
Could you please do that at this time?
A. [Witness complies]
Q. Would you explain what those numbers mean?
A. Sure.
Okay. For the probe MS-1, here
are the frequencies. This is for the
Caucasian database. It's 0.0035, and
the frequency for a black database is 0.0020.
Q. What does that figure represent?
A. Okay.
How you arrive at this number is when you compare the -- this is
actually used in the known blood sample of Emma Thompson is what those
frequencies are. Okay. You take the banding pattern that I got from
probe MS-1, you put that information in the computer, and it goes to the
database, and it has a range of other fragment sizes in the database that it
will count as being similar to Emma Thompson's.
In
our case, the range is 10 percent. It
will go 5 percent above the fragment from a known sample and 5 percent below,
and any fragment that fits into that area, it will count. It will also check on the other band, she
has two bands, and make sure that it also has a fragment that falls within that
range of ten percent. If there's a
fragment in both areas, it will get counted.
And so, when you look at our database, .0035 was the frequency of the
samples which were similar to hers.
Q. And is that the same -- with regard to the
rest of the figures on the board, are these the frequency calculations that
were calculated in a similar fashion with respect to the remaining five probes?
A. Yes, sir.
Q. With respect to YNH-24, you've written two
figures on here, one for the Caucasian and one for the black database, can you
translate that number what .0205 means?
Can you explain that more simply for the jury?
A. You're referring -- moving down into saying
one out of so many people?
Q. Yes.
Or a percentage, one out of a hundred if you can.
A. Okay.
Q. Can you translate .0205 in simpler terms?
A. I have to use my calculator. Just a minute. [Pause] Okay. If you take .0205, divide that number into
one, one divided by .0205, you'll find out that about one out of every
forty-eight people have a pattern similar to that.
Q. Now, after you have arrived at these figures,
how do you arrive at the overall frequency calculation figures?
A. Okay.
Once I have the frequencies for each individual probe, I can multiply
these together because these are each independent. They're on different chromosomes. So all I do is multiply this number times this, this, this, and
this, and then I get a final number here at the bottom.
Q. And with respect to each of the databases
that you've identified, the Caucasian and the black, what were the figures that
you arrived at?
A. You're talking about the final figures?
Q. Yes.
A. Okay.
I converted the final figure from a frequency since it's got so many
decimal places to a one in a -- you
know, one in ten billion. The actual
final number on the Caucasian database was one in forty billion. And the actual number on the black database
was one in one trillion.
Q. Okay.
Now, if you arrived at those figures as final frequency calculations
with respect to the Caucasian and black databases, why did you testify
yesterday as to a one in ten billion figure?
A. We determined that since our frequency figures
are, as we added probes, we're going up into the upper billions to the
trillions, we were going to put essentially a cap on our frequency. If the frequency exceeds one in ten billion,
we're just going to say one in ten billion, because that's already
approximately twice the world's population.
Q. Who decided what that cap was going to be,
the ten billion cap?
A. Dr. Herrin was the one that brought it out,
and we just had a meeting and all agreed that that's what we felt like we
should do.
Q. You mentioned something a few minutes ago
that the probes are looking for sequences on different chromosomes. Could you explain that to the jury, please?
A. Right.
This probe is looking for a -- this is MS-1, and it's looking at
chromosome number one. YNH-24 looks at
chromosome number two. TBQ-7 looks at
chromosome number, I believe it's ten.
PH-30 looks at chromosome number four.
V-1 looks at chromosome number five.
LH-1 looks at chromosome number five, I believe. Let me check that and make sure. [Pause] Yes.
So if a factor you're looking at is on different chromosomes, it's
independent because what's on one chromosome doesn't affect what's on another
one. So that means they're independent
and you can multiply the frequencies together.
Q. Just for completeness, can you fill in the
last two lines on that chart consistent with your testimony?
A. [Witness complies]
Q. You can write out the word as opposed to
using zeroes if that's easier.
A. Thank you.
Q. If you could just stay right there for a
second. I want to ask you a few other
questions at the easel. Mr. Goff, I
would at this time direct your attention to State's Exhibit 139, which is the
-- you've previously identified as the original autorad with respect to the
probe MS-1, I believe, and the corresponding photograph, State's Exhibit 139B,
which is the photograph of this same autorad.
I'd like to ask you a series of questions, if I could, at this time.
A. Yes, sir.
Q. First of all, could you explain for the jury
what determines the -- either the lightness or the darkness of a particular
band?
A. The lightness or darkness of a band, such --
you can see this one is darker than this one, is determined probably by three
factors. The first thing is the amount
of DNA. If you have less DNA, of
course, you will not get as dark a band.
The length of the exposure of the x-ray film, and the amount of probe
that stuck to the band, which is really a function of the amount. So if you have a large amount of DNA, you'll
get a dark band. It's heavier and a
little bit wider. If you have a small
amount of DNA, you'll get a lighter band.
Q. Why, with respect to this particular autorad,
are the bands lighter in the column that's labeled car seat than in the columns
that are labeled Emma Thompson and M. Chapel?
A. Well, on a known sample, usually you'll
recover a large amount of DNA. On an
unknown stain or something, you generally don't recover as much DNA, so your
banding pattern will be lighter.
Q. Is there an approximate minimum quantity of
DNA which must be recovered from a particular stain in order to do a DNA
analysis?
A. There may not be a minimum flat out. Usually, if you get fifty nanograms of DNA,
you're going to get a five- or six-probe result. You're going to have enough.
You can get results with smaller amounts of DNA, but you may not get as
many results or you might not get any at all if you have too small an amount.
Q. And from reviewing your notes in this case,
do you know the approximate amount of DNA which was extracted from the stain on
the car seat?
A. Just a moment. [Pause] I noted that I
had less than five nanograms in a microliter, and I have twenty microliters
total, so somewhere less than a hundred nanograms of DNA was picked up from
that stain.
Q. Mr. Goff, directing your attention again to
the bands, what does a band on the film actually represent? In other words, what are we looking at when
we view a band?
A. When you're looking at a band, what you're
seeing is the result of the radiation coming off of a probe and just striking
the x-ray film. So you're not -- you
don't actually see the band of DNA. You
see the image that's left by the radiation that's attached to that band.
Q. Okay.
Would it be useful for you to -- could you illustrate that on the white
board behind you?
A. Sure.
[Witness complies] Now, when you
have your DNA fragments, there will be several of them. Let me draw them straighter. Okay.
You'll have your DNA fragments here. Then the probes will come in and
attach to that. Then the radiation
that's on the probe will come off and strike the x-ray film, and that will give
you your black band that's on the x-ray film.
Q. How do you size a band, in other words,
either visually or with the computer, when you have a band that appears to have
some fuzzy edges. How do you size the
band?
A. Well, what you'll do is the bio-image system
will mark the bands, and I will look at where it's marked the band, and we want
it to mark it in approximately in the middle of a band. So I will look at it and I will confirm
whether or not it's marked it in the middle of the band, in the middle of
whichever band, say, on this band right here, we want it to mark it right in
the middle. If the bio-image has not
marked it in what I'd say is the middle of the band, then I have the option of
moving that mark to what I consider to be the middle of the band.
Q. Would you explain for the members of the
jury, there have been some columns in this autorad which also appear in the
photograph that I don't believe you have identified or explained yet. I believe you did explain, and could you
perhaps repeat briefly for the jury, the DRL ladder which is, I think you've
testified, repeated four times? What's
the purpose of that ladder?
A. All right.
That's these four columns.
That's actually a sizing ladder. Each of these DNA fragments has a known link, and that information
is recorded in the bio-image. You can
mark these. You'll have the known sizes
and the known sizes here, and then you compare it to your samples. Then you can, you know, arrive at an estimate
of what the fragment size is of your sample.
Q. There is a column labeled at the bottom
K562. Can you explain what the purpose
of that column is?
A. Okay.
That's a control sample that we purchase from a company. The company tells us approximately what the
fragment sizes are, and we have calculated what the fragment size range is
acceptable in our laboratory. We can
use this to determine if our electrophoresis has proceeded as normal so the
fragment size ranges follow what we -- the range we expect them to. Also, you can check this and see if the
probe that's listed up here was actually used on this -- or to create this
x-ray film.
Q. Okay.
Could you point to that column on the photograph as well, in case the
gentleman back there in the corner can't see the x-ray?
A. Okay.
This is K562 right here.
Q. Is K562, is that something that's used often
in DNA analysis?
A. Yes.
Q. Is it used in every one?
A. Yes, it would be, generally speaking. There might be an occasion where you are
running a known sample that you might not have a K562, but other than that you
will have a K562 on every gel you run.
Q. Are you able to identify the banding pattern
of K562 with respect to each probe?
A. Yes.
Q. Is that something that you're familiar with?
A. Yes, sir.
I usually have to go ahead and actually go to the bio-image and
calculate the fragment sizes to be sure.
I can't visually look at it, you know, and actually say, well, this is
from probe MS-1. So I have to get the
fragment sizes. Then I can tell which
probe was used.
Q. Okay.
And do the use of K562, did that assume any particular importance in
this case?
A. Yes, sir, it did.
Q. Would you explain that for the jury, please?
A. Okay.
There was one x-ray film which came off and it was labeled YNH-24. And when I analyzed it to determine the
fragment sizes of K562, and that was labeled YNH-24, and I determined the
fragment size of the K562 on that x-ray film, I realized that it really was not
YNH-24, that the probe used was really TBQ-7.
Q. And how were you able to figure that out?
A. Just by calculating or determining the
fragment sizes of the K562. When I
compared that to the expected sizes under YNH-24, it didn't meet those
sizes. And then I looked over and found
that it did meet the size under TBQ-7.
Q. And as a result of that, what did you do?
A. The only thing I did is I took the film that
was marked YNH-24, marked through that, and re-labeled it TBQ-7, and on our
gel-loading sheet I also re-labeled it as being TBQ-7.
Q. Based upon your training and experience and
education and expertise in the area of DNA analysis, was that an error which
affected the reliability of the results in this case?
A. No, sir, it didn't.
Q. There is a -- out to the far right side of
this autorad, there appears to be some -- a banding pattern that's not labeled.
A. Yes, sir.
Q. And I believe on the photograph, it would be
this far right side. Can you explain
for the members of the jury what that is?
A. Yes, sir.
That is a minimum quantity standard.
It's a minimum amount of DNA that we expect that we can detect within
seven days of exposing that x-ray film.
The main purpose for it being there is if you expose the film for seven
to ten days and this pattern is visible, but, say, on your evidence lane,
there's no pattern visible, that means, generally speaking, you can stop
probing because you're not going to get an answer. If this one comes up and there's still nothing here, you're not
going to be able to expose it long enough to get an answer out of this lane.
Q. Is there a phrase that you use with respect
to that column? I mean, it's not
labeled, but is that -- do you have a name for that?
A. The short name for it's MQ or MQ-1.
Q. And, once again, what's the purpose of MQ-1?
A. It's a minimum quantity standard. It has the smallest amount of DNA that we
would expect to be able to detect using our system within a period of, say,
seven to ten days.
Q. And with respect to the six probes that were
utilized in this case, did a banding pattern appear in the MQ-1 column?
A. I'd have to look at each one of them
individually because we don't check the MQ-1 column unless we're not getting an
answer on our evidence columns.
Q. Okay.
Directing your attention to another column that you have not identified
that's labeled QC128. I believe it's
the third from the right --
A. Yes, sir.
Q. -- on the photograph. It would be this column here, can you
explain what does QC128 mean?
A. Okay.
That essentially is an internal proficiency test. It's a swab that has a combination of a
blood sample and a semen sample on it.
I think we have, I believe, it's five donors of blood and five donors of
semen. Those are mixed randomly and
placed on a swab. And the only thing on
the swab is the label saying that it's QC128.
I don't know who the donors are on that swab. I process it alongside the evidence sample and then get a banding
pattern from it and compare it back to a chart and pick out the donors of that
QC sample.
Q. Okay.
Do you know who the donor of the blood and semen is prior to your
analysis?
A. No, sir.
Q. Is the QC128 sample unique to this test in
the sense of that number 128?
A. Yes, sir, it is.
Q. Now, I believe on yesterday you explained
briefly a phenomena which you call partial digestion?
A. Yes, sir.
Q. Okay.
And with respect to the chart on the board, would you just briefly
explain again what is partial digestion?
A. Okay.
Just a moment. Can I erase this
that's up here already?
Q. Can you use this area to explain it or do you
need to do it in another fashion?
A. Not really.
I need to do it a little bit different way.
Q. Okay.
Fine. Fine. Go ahead.
A. Okay.
I'm just going to draw the DNA as just one strand. It's really double-stranded, but I'm just
going to draw it as one just to make it simple. If the DNA segment that you want to detect with your probe is
right here, okay, the restriction enzyme Hae-III is going to go in and cut in
certain areas. Say that it can -- it
has restriction sites where it can cut in these four areas, so Hae-III should
go in and cut here, here, here, here on each of these.
Q. And what base pair combination would it be
looking for at those restriction sites?
A. It's looking for GGCC.
Q. Okay.
Please continue.
A. Okay.
In a partial -- well, in a full digestion, it would go in and it would
cut at all of those sites. In a
partial, for some reason, it won't cut at all the sites. Let's say it only cuts here and here or it
only cuts here, so what you end up with, instead of this short area of DNA
that's detected by the probe, you end up with a larger piece. It still goes and sits on this, but then
you've got a longer fragment of DNA, so you actually have a larger fragment
than you normally would have in a partial digestion.
Q. In terms of the creation of the autorads,
what is the effect of partial digestion?
A. It will cause an effect similar to this. These will be the bands that you would
normally see in a completely digested sample.
If you have a partial, you'll see some other bands. It will be like this. It will have extra bands here, and you may
or may not have extra bands here.
Q. Okay.
And does the crime lab have a protocol for dealing with partial
digestion?
A. Yes, sir, we do.
Q. Okay.
And would you explain that for the jury, please?
A. Basically, what we'll do when we have a
partial digestion is we'll take the known DNA sample, and we'll intentionally
do a partial digestion. Instead of
putting the enzyme in when incubating it overnight so it would cut all of the
DNA, we will only incubate it from about a range from like two minutes to ten
minutes, so we stop it before it gets a chance to cut everywhere. So then we'll get a sample that's been
intentionally partially digested and then we can compare it back to our
evidence sample.
Q. Okay.
If you could take the stand for just a minute.
A. [The witness returned to the stand.]
Q. Mr. Goff, at this time, I would ask you to
identify a number of items. What's been
marked as State's Exhibit 145, can you identify that item?
A. Yes, sir.
This is the original autorad for the probe MS-1 during the partial
digestion experiment.
Q. And I'm showing you what's been marked as
State's Exhibit 145B. Can you identify
that photograph?
A. Yes, sir.
This is a photograph. It's an
enlargement of that same autorad from MS-1 showing the partial digestion
experiment.
Q. All right.
Is that a fair and accurate photograph of what's depicted on the x-ray
film?
A. Yes, sir, it is.
Q. I'm showing you what's been marked as State's
Exhibit 146. Can you identify that
photograph, please?
A. This is the original x-ray film for the
partial digestion experiment using the probe YNH-24.
Q. I'm showing you what's been marked as State's
Exhibit 146B. Can you identify that
photograph, please?
A. This is a photographic enlargement of the
original autorad from the partial digestion experiment for the probe YNH-24.
Q. I'm showing you what's been marked as State's
Exhibit 147. Can you identify that
photograph, please -- or I'm sorry, that item, please?
A. This is the original autorad for the partial
digestion experiment, and it's the probe TBQ-7.
Q. I'm showing you what's been marked as State's
Exhibit 147B. Can you identify that
item, please?
A. This is a photographic enlargement of the
autorad for the probe TBQ-7 on the partial digestion experiment.
Q. Does that fairly and accurately depict what's
shown on the x-ray film?
A. Yes, sir.
Q. I'm showing you what's been marked as State's
Exhibit 148. Can you identify that
item, please?
A. This is the original autorad for the probe
V-1 for the partial digestion experiment.
Q. I'm showing you what's been marked as State's
Exhibit 148B. Can you identify that
photograph, please?
A. This is a photographic enlargement of the
autorad for V-1 from the partial digestion experiment.
Q. Does that fairly and accurately depict what's
shown on State's Exhibit 148?
A. Yes, sir.
Q. I'm showing you what's been marked as State's
Exhibit 149. Can you identify that
item, please?
A. This is the original autorad for the probe
LH-1 in the partial digestion experiment.
Q. I'm showing you what's been marked as State's
Exhibit 149B. Can you identify that
item, please?
A. This is a photographic enlargement of the
autorad using the probe LH-1 in the partial digestion experiment.
Q. Does that fairly and accurately depict what's
shown on State's Exhibit 149?
A. Yes, sir.
Q. Mr. Goff, at this time, I would also ask you
to identify two more items. Can you
identify State's Exhibit 150?
A. Yes, sir.
This is an original autorad from a replicate sample that we ran. It's for the probe TBQ-7.
Q. All right.
What sample was run on that gel?
A. The blood sample of Emma Thompson.
Q. I'm showing you what's been marked as State's
Exhibit 150B. Can you identify that
photograph, please?
A. This is a photographic enlargement of that
same autorad from the replicate and it is a -- for the probe TBQ-7.
Q. Does that fairly and accurately depict what's
shown on State's 150?
A. Yes, sir.
Q. And finally, can you identify State's Exhibit
151?
A. This is an original autorad for the replicate
run and it is for the probe PH-30.
Q. And what sample was run on that gel?
A. A blood sample from Emma Thompson.
Q. And finally, State's Exhibit 151B, can you
identify that photograph for the members of the jury, please?
A. This is a photographic enlargement of the
autorad for the probe PH-30 on the replicate run.
Q. Okay.
And does that fairly and accurately depict what's shown on State's
Exhibit 151?
A. Yes, sir.
MR.
SMEAL: Your Honor, at this time, the
state would move to admit State's Exhibits 145 and 145B through 151 and 151B.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, no new
objections. We had pretrial rulings on
a lot of this.
THE
COURT: All right. 145 and 145B, 146 and 146B, 147 and 147B,
148 and 148B, 149 and 149B -- are you offering 150 as well?
MR.
SMEAL: Yes, sir.
THE
COURT: 150 and 150B, and 151 and 151B,
all State's Exhibits, are admitted without objection.
BY
MR. SMEAL:
Q. Mr. Goff, if you could please return to the
-- in front of the jury box for another minute.
A. [The witness stepped down from the stand.]
Q. You can use this pointer. With respect to the probe MS-1 as shown on
State's Exhibit 139, which is the original autorad used for that probe, did you
find the occurrence or was there any partial digestion?
A. Yes, sir.
There is some partial digestion.
Q. Okay.
Could you explain that by pointing out whatever you need to point out on
both the original x-ray film and also the corresponding photograph here.
A. Sure.
As you'll see here, this is what we call the primary band. They match up. Also, you'll notice there are at least a couple, maybe three
bands here that are lighter. And also,
if you'd look at the bottom band, you can also see a couple of very light
areas. I'll show them all to you on the
photograph. Here's the primary bands
and also you can see the lighter bands over here, and those are a result of
partial digestion.
Q. Okay.
And how did you determine that that was in fact partial digestion? And if you could make reference to State's
145 and 145B.
A. Okay.
We went through a process or I went through a process where I
intentionally took a DNA sample that's from Emma Thompson and I did a partial
digestion and this is the results of that partial digestion. You'll see these are progressively longer
times that I allowed the enzyme to work.
This last column, if you'll look at it, you can see the primary
bands. You can also see these lighter
bands here and here.
If
you look at the photograph, it's the same thing. Primary bands, which are the true bands that you're looking for,
and then you can see the lighter bands just above them. And those lighter bands are a result of that
partial digestion.
Q. Okay.
Directing your attention to this area of State's Exhibit 139B, which is
in the column car seat --
A. Yes.
Q. Okay.
Is there partial digestion in that area?
A. Yes, sir, there is. You can -- here's the primary band and you can see the small or
lighter bands above it, and those are the result of partial digestion.
Q. And can you explain that in reference to 145B
in this second last column here?
A. Okay.
When you have a partial digestion, when you run through the partial
digestion experiment, what you'll do is you'll just visually compare this
pattern you have here to this pattern over here. And you can see that the bands, those extra bands present here
are also present here. And that way you
know that these are a result of the partial digestion.
Q. You also explained yesterday or briefly
explained yesterday a phenomenon known as incomplete stripping?
A. Yes, sir.
Q. Okay.
Would you briefly tell the jury again what that involves?
A. When you're probing the membrane, of course,
you'll have one probe on it and then you'll strip that probe off and put
another one on. And sometimes the first
probe won't completely strip off, so you'll have a little bit of the probe remain
there. So when you put the second one
on and then put the film on top of it, you'll get the dark bands from the first
probe -- I mean from the second probe, but then the other -- the previous probe
will show up very lightly. And that's
called incomplete stripping.
Q. Can you tell by looking at this original
autorad whether or not there was any incomplete stripping with respect to the
probe MS-1?
A. Yes, sir.
On the MS-1 autorad there are a couple of instances of incomplete
stripping.
Q. Okay.
Could you point that out, please?
A. Okay.
The first is in this column which contains the sample of Emma
Thompson. You see this light band here
and the light band there.
Q. Could you show those on the photographs 139B?
A. Okay.
On the photograph, this is the blood sample of Emma Thompson. You can see this light band and this
one. And that is a result of incomplete
stripping of the probe TBQ-7.
Q. And how do you know it was the result of
incomplete stripping?
A. Once you see a pattern that you think is incomplete
stripping, you will take the autorads in question, say, I'll take the MS-1
autorad and the TBQ-7 and just lay them on top of each other. And if the TBQ pattern matches up to these
light bands, then that is incomplete stripping. And you just do it visually.
That's all it requires.
Q. And did you do that in this case?
A. Yes, sir.
Q. Okay.
Did you examine the autorad of the previous probe to determine whether
or not there was incomplete stripping with respect to MS-1?
A. Yes, sir, I did.
Q. All right.
And did you find that there was?
A. Yes.
It was -- the previous probe is TBQ-7, so that's the one that is the
incomplete stripping on the autorad for the probe MS-1.
Q. Let me substitute, if I can, another
autorad. This is the original autorad
of TBQ-7, State's Exhibit 141, which you just said was the previous probe that
was utilized. Could you show how
incomplete stripping resulted with reference to State's Exhibit 141?
A. On the TBQ-7 autorad in the lane for Emma
Thompson, you see a dark band here and a dark band here. And if you go across, you'll see that this
band matches up to that light band and up here, and it matches up to that one.
Q. Would you also show that with respect to the
photographs, 139B and also 141B?
A. Yes, sir.
This is a photograph of TBQ-7.
And you can see the two bands.
And if you look at the photograph for the probe MS-1, you can see a
light band. And if I can sort of pull
this across, you can see they match.
And here you see the dark band, and it goes over and will match up to
this light band here. So that would be
incomplete stripping of the probe TBQ-7 that causes these two light bands to
appear.
Q. Okay.
Are there, in fact, you've been referring to them, but would you call
these faint areas on this column of Emma Thompson, are those in fact bands?
A. They are -- they're bands, but they're a
result of incomplete stripping so they don't really count. You wouldn't mark them as a true band
because they're from another probe.
Q. In the bio-imaging process, would you edit
those bands?
A. No, sir.
Q. Why not?
A. Since you can overlay the autorads, you can
account for the fact that these are actually from MS-1 -- I mean, from TBQ-7,
excuse me. So there's no real need to
size these bands or record that on your sizing sheet.
Q. And did you perform that partial digestion
and incomplete stripping, the protocols that you have described, did you
perform that with respect to each probe wherever you saw those two items occur?
A. Yes.
If we saw -- of if I saw the either incomplete stripping or partial
digestion, I would have done the partial digestion experiment for that probe
and also would have overlaid the autorads to see that it was, in fact,
incomplete stripping to account for those light bands.
Q. Okay.
With respect to State's Exhibit 141, which is the original autorad for
the probe TBQ-7, is there partial digestion on that autorad?
A. Which autorad, again?
Q. TBQ-7, State's Exhibit 141.
A. Yes, sir.
There is partial digestion.
Q. Okay.
Would you point it out and explain it, if you can?
A. This is the lane that contains the DNA from
the blood stain from the car seat. And
again, this band is a primary band and this band is a primary band. Here's a band that's a result of partial
digestion. This light band is partial
digestion, this one, and this one.
Q. Okay.
Could you also point out those corresponding areas on State's Exhibit
141B, which is the photograph of the autorad you just referred to, 141?
A. Yes, sir.
Again, this lane is the DNA from the blood stain from the car seat. Here are your primary bands. And this light band, this one, and these are
starting to fade out on the photograph, those are a result of partial
digestion.
Q. Okay.
Directing your attention to State's Exhibits 147 and also the
corresponding photograph 147B, could you further explain your conclusion
regarding partial digestion with reference to those two State's Exhibits?
A. Yes, sir.
147 is the partial digestion experiment using the probe TBQ-7. And the most important lane to look at,
again, is this last one over here next to the sizing ladder. You can see the primary bands that are heavy
and you can see the partial digestion bands.
And so if you compare this pattern over to this pattern, you can see
that the bands, the extra bands here, are a result of the partial digestion.
Q. All right.
Could you also show that to the jury on State's Exhibits 141B and 147B?
A. Yes.
Again, here's the blood stain from the car seat, the primary bands, the
extra bands that are a result of partial digestion. And if you look at the next to the last lane on the partial
digestion experiment, you can see the primary bands here and here and the
partial bands. You'll see these
patterns are similar, so these extra bands here and this one here is a result
of partial digestion.
Q. Okay.
And once again, what is the sample that was used to create the banding
pattern on 147B?
A. The known blood sample from Emma
Thompson. Actually, it was the DNA that
I already had extracted from that known sample.
Q. Let me show you another exhibit, if I can,
Mr. Goff. Directing your attention to
State's Exhibit 142 and the corresponding photograph 142B, which you have
previously identified as being the autorads created with respect to probe
PH-30, did you find any partial digestion with respect to this probe, PH-30?
A. Using this probe, we did not find any partial
digestion. As you can see in the lane
that contains the blood stain from the car seat, there are only two bands, and
there's no indication of partial digestion.
This probe, generally speaking, does not show partial digestion.
Q. Why is that?
A. It's because the fragment sizes are fairly
long, so there are not as many sites to be cut in reference to this probe, so
the enzyme has enough time to cut everywhere, and so it usually does not show a
partial. And, in fact, I don't think I
can ever remember seeing a partial with the probe PH-30.
Q. And you've already indicated that this column
labeled car seat and the column labeled Emma Thompson, you determined that to
be a match; is that correct?
A. Yes, sir.
Q. Why are the bands so much darker on Emma
Thompson's lane than on the car seat?
A. They're darker on this lane because it's the
known, and I had more DNA.
Q. Okay.
Could you show that on State's Exhibit 142B?
A. Yes.
This is the known sample of Emma Thompson, you can see the bands are
dark, and this is the sample from the car seat, and they're lighter because
they don't have as much DNA in this lane.
Q. And with respect to the column labeled M.
Chapel, could you explain with reference to this probe whether M. Chapel
matches the label -- the column labeled car seat?
A. If you'll look in the lane that's labeled M.
Chapel, which is a sample from Mr. Chapel, you can look at this band, and you
look over here in the lane from the car seat, you don't see anything. And you look at the other top band, you look
in the car seat lane, you do not see anything that matches up to Mr. Chapel.
Q. Okay.
Could you also explain that with reference to State's Exhibit 142B,
please?
A. This is Mr. Chapel's pattern. And if you look at the car seat, there's no
band there. And if you look at this
one, there's no band on the car seat. So
he could not have contributed the DNA sample that I got from the car seat.
Q. Directing your attention to State's Exhibit
143 and also the corresponding photograph 143B, which you have previously
identified as the autorad that was created with respect to the probe V-1, did
you find any partial digestion with respect to this -- the use of this probe?
A. Yes, sir, I did.
Q. Would you explain that to the jury, please?
A. If you look in the lane that's labeled car
seat, you'll see that you have a couple of extra bands. You have a band that matches up to Emma
Thompson and another band matching Emma Thompson. You also have two extra bands, and those are a result of partial
digestion.
Q. Okay.
Would you show that on the photograph 143B as well, please?
A. Yes, sir.
All right. Here's the lane Emma
Thompson. Looking over to the car seat,
you'll have a band matching here, a band matching here. You also have these two extra bands.
Q. When you do the bio-imaging process, would
you edit this banding pattern in the column labeled car seat on -- with regard
to probe V-1?
A. Originally, when I did the first imaging, I
only edited the actual bands. Later, I
went back -- well, I actually sized the bands.
Later, I went back and sized all the bands in the partial digestion.
Q. Okay.
And with respect to the columns labeled M. Chapel, did you reach a
conclusion with respect to this probe V-1 whether M. Chapel was the source of
the blood on the car seat?
A. Okay.
If you'll look at this column, this is labeled M. Chapel, and you look
over here, if his band was present, it would be just below this one, and I do
not see a band there.
Q. Directing your attention to -- well, before I
ask you that next question, as a result of the testimony that you've just
testified, can you make a conclusion about M. Chapel being the source of that
blood?
A. Looking at the probe V-1, I do not see a band
that would match up to Mr. Chapel, so he could not be a donor of the blood from
the car seat.
Q. Now, you've previously or a few minutes ago
testified that there was partial digestion with respect to V-1. I'm showing you what's been marked as
State's Exhibits 148 and 148B. Could
you explain that conclusion by referencing those two State's Exhibits? A. Yes, sir.
Again, this is the partial digestion experiment, probe V-1, and if you
look at the last column, you have your primary band there and there and your partial
bands. And you see that pattern will
match up to the pattern I obtained from the car seat. And on the photograph, again, here's your partial digestion that
I intentionally did. And that matches
up to the pattern from the car seat.
Q. Directing your attention to State's Exhibit
144, which is the original autorad for the probe LH-1, and the corresponding
photograph of that autorad which has been labeled and identified as 144B, can
you tell the jury whether or not you found any partial digestion with respect
to this probe LH-1?
A. On this probe, if you look in the lane from
the car seat, I did not find any partial digestion.
Q. Could you also point that out on 144B?
A. Okay.
On the photograph, again, you can see the bands match up, and there are
no extra bands in that lane, so there's no partial digestion.
MR.
SMEAL: Your Honor, I would ask that
this be marked as the next state's exhibit.
You can just stay right there, Mr. Goff.
THE
COURT: State's 152; is that correct?
[State's
Exhibit Number 153 was marked for identification by the court reporter.]
MR.
SMEAL: 153 she's labeling it.
THE
COURT: Okay. What is 152?
MR.
SMEAL: 152, Your Honor, is the probe
chart.
THE
COURT: Okay. Thank you.
BY
MR. SMEAL:
Q. Mr. Goff, I'm showing you what's been marked
for identification purposes as State's Exhibit 153. Can you identify that document?
A. Yes, sir, I can. This is a copy of a sizing sheet and it also has a photograph of
the sizing done for the probe LH-1.
Q. Okay.
And when was that image created?
A. I can't give you an exact date. We did this sometime in either late July or
early August.
Q. And who was present at that time when that --
THE
COURT: Which year is that, Mr. Goff?
THE
WITNESS: Which year?
THE
COURT: Yes.
THE
WITNESS: 1995.
THE
COURT: All right.
BY
MR. SMEAL:
Q. Okay.
And who was present when this image was created?
A. I was present, you were present, Mr. Smeal,
Dr. Herrin was present, Mr. Moore was present, and Dr. Shapiro was present.
Q. And what was the purpose of that meeting or
what was done at that time at that location?
Was that done at the crime lab?
A. Yes, sir, it was.
Q. What was the purpose of that meeting?
A. We had been requested to save an image of
LH-1 from a previous analysis, and at some point it got deleted off our
computer system, so we went back and re-scanned the autorad and re-edited or
re-sized it in the presence of the individuals I just named.
Q. Now, was the original autorad LH-1, which
was, I believe you testified, created back in 1993, was that still available?
A. Well, the original autorad for LH-1 was
actually created in 1995, early -- I think it was July -- excuse me, January of
1995. The original autorad was
available, so we re-scanned the original autorad and then did the sizing again.
Q. Okay.
Let's digress for one second.
And if you would explain for the jury why was the autorad with respect
to LH-1, why was that only created in 1995?
A. At the time we originally we did the
analysis, we were not using that probe in our analysis for case work. We had received the probe and we were in --
I think we were -- may have been actually developing our database for it. In December of 1994 a decision was made, and
it involved Dr. Herrin, and I
think it involved me, and I'm not sure who else, to go ahead and probe this
membrane with the LH-1 probe. So at the
end of December of 1994, we did the probing and in January of '95, we developed
the x-ray film.
Q. Okay.
Up until the time that this probe was added, LH-1, was the crime lab
only doing a five-probe DNA analysis?
A. Yes, sir, we were. I think we started using LH-1 routinely -- I can't give you an
exact date. I want to say sometime in
1994.
Q. Okay.
And, in fact, at the time that this additional probe was run in this
case, had a report -- had you already generated a report with a conclusion in
this case?
A. Yes, sir, we had.
Q. What was the result that you had reached with
respect to a five-probe analysis?
A. On the five-probe analysis I had reported
that there was a five-probe match between the blood sample from Emma Thompson
and the blood stain on the car seat.
Q. Okay.
And what was the frequency of occurrence that you arrived at with the
five-probe analysis?
A. Could I go back and refer to my notes?
Q. Sure.
A. Okay.
On the five-probe analysis, we only did a comparison to the Caucasian
population, and the frequency was one in four hundred million.
Q. As a hypothetical, Mr. Goff, if you had run
the sixth probe and you had not -- it had not matched, the match -- you found
that there was not a match between the car seat and Emma Thompson, what effect
would that have had on your overall conclusion to this case?
A. It would have changed the overall conclusion.
Q. On that point, what are the various
conclusions that you do reach in a DNA analysis case; in other words, what are
the possible conclusions?
A. Usually, there are -- we usually have an
inclusion or a match, and we can have an exclusion, and we could have an
inconclusive, and we could have an uninterpretable. That's probably the basic four conclusions you can reach. Usually, you get either an inclusion, an
exclusion, or an inconclusive. Seldom
do you get an uninterpretable.
Q. What's the difference between an
uninterpretable and an inconclusive?
A. I don't have the protocol in front of me, so
I can't get it exactly. Usually, an
uninterpretable would mean that the autorad, there would just not be anything
visible, so you can't tell anything about what you've got. An inconclusive, as an example, you might
have results from a single probe and two knowns and the questioned sample might
appear to be the same and that would end up being inconclusive because you
can't tell with just a single probe result.
Q. Directing your attention back, then, to what
we were talking about originally, which was the creation of this bio-image, and
there appears to be a date on this document.
Does that reflect the date it was created?
A. Yes, sir, it does.
Q. What is that date?
A. July 27, 1995.
Q. All right.
You had said that there was some type of deletion of that bio-image; is
that correct?
A. Yes.
As far as the original image from January.
Q. Had that image been stored at some point?
A. Yes.
It had been -- when you finish sizing an imaging or editing a image, you
use the words size and edit interchangeably, an image is stored in the
bio-image system.
Q. Okay.
And had the crime lab agreed to retain that image?
A. Yes, sir, we had.
Q. And was it in fact retained?
A. No, sir.
It was -- at some point it got deleted, and I don't know when it
happened. We went back to look for it,
and it wasn't there any longer.
Q. Okay.
And to the best of your knowledge and recollection, did you delete it?
A. As far as I know, I didn't delete it.
Q. Directing your attention to July 27, 1995,
when the persons that you've described as present were there and you re-created
that bio-image, do you recall whether or not you had to edit the scan that was
created by the computer?
A. Yes, sir, I did.
Q. Okay.
And would you explain that for the jury with reference to State's
Exhibits 144 and 144B?
A. Yes, sir.
When the computer looks at this image, it will make a mark on everything
that it considers to be a band, so it will put a little mark here and, say,
right here in the middle of this dark band.
Also, anything else that it thinks is a band it will mark, so like this
little -- this spot here, it may place a mark there because it sees this spot
and it thinks it's going to be a band.
Q. Okay.
Could you make reference to that on 144B, the area that you are pointing
to?
A. Sure.
Say this little spot right here, the computer may make a mark there
thinking this is a band also because it sees this dark area. Or it might make a mark here. Seeing this dark area, it might think it's a
band. So the computer, it can't pick
out the bands by itself totally. It can
pick them out to an extent, but sometimes it will either fail to pick out
something that is a band or it may pick out something that it thinks is a band
which really isn't.
Q. And in this particular case, at that time and
at that location, did you delete an image which the computer had picked up as a
band?
A. Yes, sir, I did. In the lane that's the blood stain from the car seat, there was
at least one other thing other than these two bands that the computer
marked. And I did not consider that a
band and, as you see, there's one band here, one here. I don't see any more bands in this
lane. So whatever the computer marked,
I deleted that mark.
Q. And that was done in the presence of the
persons you've described?
A. Yes, sir, it was.
Q. Which included myself, Dr. Herrin; is that
correct?
A. Yes.
Q. Mr. Moore and Dr. Shapiro?
A. Yes, that's correct.
Q. Directing your attention again to State's
Exhibit 144, with reference to the column labeled M. Chapel, what conclusion
would you reach regarding the banding pattern found in that column with respect
to the car seat column?
A. If you'll look in the column marked M.
Chapel, you'll see a band here, a band here.
If you look over in the column marked car seat, those two bands are not
present, so Mr. Chapel could not have contributed that -- the DNA in that blood
stain.
Q. With respect to the five probes that we have
so far discussed, did you find a match between M. Chapel and the blood stain in
the car seat?
A. The way you're phrasing it, no, I did not
find a match because visually I can eliminate Mr. Chapel as being a donor of
the blood stain from the car seat, so I don't do any kind of comparison as far
as the band sizes to see how close they are since he doesn't have any that
match up to the car seat.
Q. Directing your attention to State's Exhibits
140 and the corresponding photograph 140B, 140 is the original autorad that
you've identified as being created with respect to probe YNH-24 and the
corresponding photograph State's Exhibit 140B.
First of all, would you tell the jury whether or not you found any
partial digestion with respect to the creation of this probe?
A. Yes, sir.
There's partial digestion present.
If you'll look in the lane that's the car seat, you'll see the two
primary bands, and you'll also see these lighter bands that are a result of
partial digestion.
Q. And showing you what's been marked as State's
Exhibit 146 and also 146B, can you identify these items and explain to the jury
their use in your conclusion that partial digestion exists with respect to
YNH-24?
A. Okay.
This is the autorad from the partial digestion experiment with YNH-24
and also a photograph of that autorad.
And if you'll look at the last column, then you can see the two primary
bands and the partial digestion bands.
And if you compare it to the blood stain from the car seat, you'll see
that they are similar to each other, and you can account for all the bands up
here as being from the partial digestion.
Q. Can you again -- can you explain that again
with reference to State's Exhibits 140B and 146B?
A. Yes.
Okay. Again, the car seat. You have the primary bands. Then you have the partial digestion
bands. On this one, the photograph is a
little bit light so you can't see with the photograph -- you can't see those
lighter bands and partial digestion quite as well. But if you compare this column to this one, you'll see they have
a similar pattern. You have the primary
bands again. And up here, you have your
partial digestion bands.
Q. Directing your attention to the column
labeled M. Chapel in State's Exhibit 140 and also 140B, those appear to be
similar to the banding pattern of Emma Thompson?
A. Yes, sir, it does.
Q. Would you comment on that, please?
A. If you look at Mr. Chapel's pattern right
here and Ms. Thompson, you see the top bands.
They look about the same. The
bottom bands don't appear to be exactly the same, but they are very close.
Q. Okay.
Could you also show that on State's Exhibits 140B and 146B?
A. Okay.
Here's Ms. Thompson's pattern. Mr. Chapel. You see the
top bands look to be about the same.
The bottom bands appear to be very similar. There might be a slight difference in the size of the two.
Q. Based upon that, those banding patterns, did
you reach any different conclusion with respect to whether M. Chapel was the
source of blood found on the car seat?
A. No, sir.
I didn't because I don't use just the results of one probing, unless
that's the only one I have. I will use
all of them together to reach my final conclusion. So I would still conclude that Mr. Chapel did not donate any DNA
to the blood stain from the car seat.
Q. And why would you not conclude that? Or explain that conclusion, please --
A. Okay.
Q. -- with reference to the other five probes.
A. What you do is you will take all of your
information from all six probes and look at it when you're reaching your
conclusion. You don't just take the
information from this one and not take into consideration anything else that
you have. If this were the only probe
you had, then you would have to reach your conclusion from these, but it's
not. So I use all of them to reach my
final conclusion.
Q. Okay.
As a hypothetical, if you had only run a one-probe analysis and YNH-24
was the only probe that you utilized and it created the banding pattern shown
on State's Exhibit 140, can you say what your conclusion would have been in
this case?
A. Since the patterns are so similar, probably
we may have called this an inconclusive because these patterns are very
similar, and with just the information of this one probe, I don't think we
would have called it an exclusion if we only had the information from this one
probe, and we would not have said that Mr. Chapel could not have donated this
sample. And, likewise, we would not
have said that Emma Thompson could have.
But that's only if we had just the results from this probe.
Q. And directing your attention again to State's
Exhibit 152, I believe you did a calculation with respect to the frequency on
the Caucasian database with respect to this probe YNH-24?
A. Yes, sir.
Q. I believe you said it was one in forty-nine;
is that --
A. Yes, sir.
I was going to re-check it real quick. [Pause] Approximately one in forty-eight.
Q. Okay.
Does that mean, and correct me if I'm wrong, does that mean that one
could expect to find that banding pattern shown on 140 in the column labeled M.
Thompson one time out of every forty-eight persons checked?
A. Yes, sir.
That's essentially what it means.
If you wanted to look for a pattern similar to this, about every
forty-eight individuals you looked at would have one that was similar to the
pattern of Emma Thompson.
Q. Did you run what are called replicate samples
in this case?
A. Yes, sir, I did run a replicate sample.
Q. Directing your attention to State's Exhibits
150 and the corresponding photograph 150B, State's Exhibit 151 and the
corresponding photograph 151B, could you, first of all, identify these items
and explain them to the jury?
A. Okay.
150 and 151, these are original autorads. They are produced running what we call a replicate sample. And by that, what we do, when we completed
an analysis and we have, say, one questioned stain and two knowns, to make
absolutely sure we didn't mix the knowns up at some point, we will run a
replicate sample.
To accomplish this, I will go back to the
original tube of blood, in this case of Emma Thompson, and I'll withdraw a
sample of the blood. Then I'll give it
to one of our technicians. They will
extract it, go through the entire DNA process, and come up with an autorad, and
then we'll just take the banding pattern that is from that replicate sample and
compare it back to the original case.
It's just a visual comparison, just look at it, to make sure that we
didn't get the samples mixed up on the original case.
Q. Okay.
If you had mixed up the known samples in the original case, if you had
accidentally mixed up the known sample of Emogene Thompson and the known sample
of Michael Chapel, what could have been the conclusion in this case?
A. If they had been mixed up, then you would say
it was Mr. Chapel's blood on the car seat instead of Ms. Thompson's.
Q. Okay.
And did the use of these replicate samples confirm your conclusion in
this case?
A. Yes, sir, it did.
Q. And was that that you were comparing the known
sample of Emogene Thompson with the car seat in reaching your conclusion?
A. That's correct. When you look at the replicate sample, especially on the
photograph I have labeled, there's a pattern of Emma Thompson, and there's a
pattern of Emma Thompson.
Q. With respect to -- going back to the
bio-imaging process, Mr. Goff, I'd like to ask you just a couple of more
questions on that. Why is it necessary
for you as a scientist to edit the bio-image scan that the computer has done?
A. Well, the computer is set up to pick out
bands, but it will also pick out, if there's a little dark spot on the autorad
that's in the lane, it will pick it out, too.
It looks for dark areas, so if there's anything that looks darker than,
you know, what else is in the lane, it will mark it. It doesn't mark it every time as a band, but sometimes it
will. I could use an example -- say
we're looking at this lane right here.
You notice up here there's a little smudge. Well, if you put this on the computer, the computer will most
likely mark this as a band, mark this as a band, and will also say that's a
band. And I know that's not a band
because that's a K562 lane. It only has
two bands. So the computer will pick
out things that aren't truly bands sometimes and will mark them.
Q. Did the fact that there was some extra
banding in this case and the fact there were partial digestion and also
incomplete stripping and also at one point what you've described as the
mislabeling of one probe, do any of those factors affect the result that you've
reached in this case?
A. Not in this case. It didn't affect the final result I reached.
Q. Mr. Goff, do you have any -- do you know Mr. Chapel?
A. No, sir.
Q. Do you have any personal interest in the
outcome of this case?
A. No, sir.
Q. Do you consider yourself to be a scientist?
A. Yes, sir.
Q. Have you reported out exclusions as a result
of DNA analyses?
A. Yes, sir.
Q. When you report out an exclusion, first of
all, what does that mean?
A. When you report out an exclusion, that would
mean that the sample you have compared to an unknown, that person could not
have contributed to the unknown sample.
It says essentially, just to use an example real quickly, say we compare
this lane to this lane. Well,
obviously, it's an exclusion because this pattern's different.
Q. And in reaching a result of either an
inclusion, an exclusion, or inconclusive, do you do that on the basis of
whatever the results show you in a case?
A. Yes, sir.
Q. And do you do that regardless of any other
external factors that may be present; in other words, do you rely upon your
test results?
A. Yes, sir, I do.
MR.
SMEAL: May we approach the bench, Your
Honor.
THE
COURT: Yes, sir.
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
MR.
SMEAL: Your Honor, I think that I might
be finished with my direct of Mr. Goff.
Could we take a brief recess?
THE
COURT: I plan on as soon as you finish
your direct, we're going to take a fifteen-minute recess.
MR.
SMEAL: Okay. That's fine.
[Bench
conference concluded.]
MR.
SMEAL: If I may have the Court's
indulgence for just a second to check my notes.
THE
COURT: Yes, sir.
[Pause]
MR.
SMEAL: Your Honor, at this time, I have
no further questions for Mr. Goff.
THE
COURT: All right. I believe before we proceed with the
cross-examination, we're due for a recess, so we'll take fifteen minutes at
this point.
I'll
ask you to leave your pens, pads, and notes in your seats. If anybody wants to smoke a cigarette or
something to drink, if you'll make that available as well. We'll take fifteen minutes at this point.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: Anything else, Mr. Smeal?
MR.
SMEAL: No, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: We'll take fifteen minutes. You can come down, Mr. Goff.
THE
WITNESS: Thank you.
[Break
taken]
[Proceedings
resumed with the jury not present]
THE
COURT: State ready?
MR.
SMEAL: Yes, Your Honor. Before the jury comes in, it came to my attention
during the recess that this morning Mr. Goff identified and was testifying from
the original autoradiographs and also the photographs of those
autoradiographs. And I neglected to
have him identify the x-ray copies. And
in accordance with our bench conference yesterday, at an appropriate time, the
state will be asking to substitute the copies of the x-rays for the original
x-rays.
THE
COURT: Yeah. Well, we have -- I believe we have at this point the originals,
the copies, and the photos of the originals are all admitted into evidence.
MR.
SMEAL: Not with respect to 145A through
151A, Your Honor.
THE
COURT: Okay. You're right.
MR.
SMEAL: The first half of them were
yesterday.
THE
COURT: Well, at this point, all of the
originals are in, and I suppose that's a matter, once we've concluded the
trial, insofar as perfecting the record or preservation of originals or that
sort of thing, that's a matter we'll just come back to and do that however need
be. With respect to originals,
obviously, particularly these kinds of materials, they ought to be preserved if
they should be needed in the future and they ought to be secured and that's a
matter we can -- we'll address and that's a matter we can cure one way or the
other. But at this point, they're in. They'll be in at the conclusion of the trial
and then we'll perfect the record as to securing the originals at that time.
MR.
SMEAL: I would just point out, Your
Honor, that Mr. Goff has not identified 145A through 151A.
THE
COURT: The copies? Okay.
That's the copies?
MR.
SMEAL: The copies of the x-rays.
THE
COURT: The negatives which are copies
of the original negatives?
MR.
SMEAL: That's correct.
THE
COURT: Okay. Do you want to have him identify those and put them in?
MR.
MOORE: Your Honor, I told him I didn't
object to him having copies identified outside the presence of the jury, if you
want to, since they're just for the record.
THE
COURT: Okay. All right. You want to do
that now?
MR.
SMEAL: Sure.
THE
COURT: Okay. Go ahead, please.
DIRECT EXAMINATION RESUMED - JURY OUT
BY
MR. SMEAL:
Q. Mr. Goff, I'm handing you what's been marked
as State's Exhibit 145A. Can you
identify that item?
A. Yes.
It's a copy of the partial digestion experiment for the probe MS-1.
Q. Okay.
Is that an accurate copy of State's Exhibit 145 that you have previously
identified?
A. Yes, sir.
Q. I'm handing you State's Exhibit 146A. Can you identify that item, please?
A. It's a copy of the original x-ray film for
the partial digestion experiment using the probe YNH-24.
Q. I'm handing you State's Exhibit 147A. Can you identify that item, please?
A. This is a copy of the original x-ray film for
the partial digestion experiment using the probe TBQ-7.
Q. I'm handing you State's Exhibit 148A. Can you identify that item, please?
A. This is a copy of the original x-ray film for
the partial digestion experiment using the probe V-1.
Q. I'm handing you State's Exhibit 149A. Can you identify that item, please?
A. This is a copy of the original x-ray film for
the partial digestion experiment using the probe LH-1.
Q. I'm handing you State's Exhibit 150A. Can you identify that item, please?
A. This is a copy of the original x-ray film for
the replicate sample and it's for the probe TBQ-7.
Q. State's Exhibit 151A, can you identify that
item, please?
A. This is a copy of the original x-ray film for
the replicate sample and this is for the probe TBQ-7 -- excuse me, PH-30.
Q. With respect to 146A through 151A, are those
all fair and accurate copies of the original autoradiograph x-ray films that
were produced in this case?
A. Yes, sir.
MR.
SMEAL: Thank you, Your Honor.
THE
COURT: Are you offering those?
MR.
SMEAL: Yes, Your Honor. We would offer those at this time.
THE
COURT: And that was 145A through 151A?
MR.
SMEAL: Yes, Your Honor, and those will
correspond to 145 through 151 and also 145B through 151B.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: Your Honor, we had agreed that
copies could be substituted for the record and we wouldn't have any objection
to those. We would retain our previous
objections pretrial to the originals and to the --
THE
COURT: Yes, sir. I understand. No prior objections are waived, and those will be admitted
without objection, the copies of the original x-rays as offered. All right.
Anything else, Mr. Smeal?
MR.
SMEAL: Not at this time, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Bring the jury back, please.
[The
jury returned to the courtroom and proceedings resumed, as follows.]
THE
COURT: Proceed when you're ready, Mr.
Moore.
CROSS EXAMINATION
BY
MR. MOORE:
Q. Mr. Goff, my name is Johnny Moore. I have a few questions I wanted to ask
you. There was something I didn't quite
understand that you were testifying to a minute ago. Could I get you to come down and perhaps --
A. [The witness stepped to diagram board.]
Q. Could you leave that and then erase this
where we'd have room to draw something over here?
A. Yes, sir.
Q. Could you reproduce what you did earlier
there?
A. Sure.
That?
Q. Sure.
A. You want me to exactly as I -- as you wrote
it down?
Q. Well, however you did it the first time. That's how I wrote it.
A. That looks like the way. [Witness complies]
Q. Now, you illustrated to the jury earlier how
the Hae-III would cut that?
A. Yes, sir.
Q. And you said it would cut between the GC and
the CG; was that correct?
A. Yes, sir.
It looks for GGCC. And when it
sees this, it will cut across there.
Q. Okay.
And if you went down here and you had that same pattern repeated down
here further --
A. Like that?
Q. Yes.
And it would normally cut it there also; right?
A. Yes, sir.
It would come back and it would again cut along there.
Q. Okay.
And when you have the partial digestion, it might not cut here, but it
might go on down to the next set and cut and include all of that; is that what
you're saying?
A. Yes, sir.
That's what it will do.
Q. Okay.
A. [The witness returned to the stand.]
Q. And that would cause it to have material in
there, bands that it wouldn't
ordinarily have, wouldn't it, because it cut it further down?
A. It would cause bands to appear that are
larger than what you would normally see because when it skips those spots, it
will still give you the recognition site for that probe so the probe will still
recognize it, but the fragment will be longer so you'll get, yeah, extra bands.
Q. Okay.
And you have no way of knowing how many pairs it skipped before it cuts
when it doesn't cut where it's supposed to, do you?
A. No, sir, I don't.
Q. I was going to ask you, with regard to the
bio-images on LH-1, the probe LH-1 --
A. Yes, sir.
Q. -- that's the one that was done at a later
time in 1995; is that correct?
A. That's correct.
Q. Okay.
And Mr. Smeal asked you about that.
In fact, the crime lab was not just requested or agreed to, but the
crime lab was under a court order to preserve that bio-image, weren't they?
A. Yes, sir, we were.
Q. And the crime lab -- tell me what steps you
took to make sure that that image was preserved so that the court order could
be followed?
A. Well, as far as I know, when you delete the
images, you print out a list of the ones you're going to delete and then you
would go down that list. Dr. Herrin
usually has that list printed out and he approves what gets deleted. Otherwise, the only way to delete something
would be go in and just pick out that particular image and just delete it out,
normally. And I'm not sure what
happened. I did not go in and delete it
myself. And as far as I know, nobody
was instructed to go in. At some point,
it got deleted, though.
Q. Is there any list anywhere that shows when it
got deleted?
A. I doubt that there is. That list is printed out, as far as I know,
you know, if you print out a list to be destroyed, then it's thrown away after
you delete those images.
Q. Okay.
So as far as you know, there weren't any additional steps taken to
preserve that to make sure it didn't get deleted?
A. As far -- yeah, as far as I know, there
weren't.
Q. Okay.
Now, once that original image is erased from the hard drive in the
computer, it's stored in the computer; is that correct?
A. Yes.
Q. Am I using the right terminology?
A. I think you are. I'm not real familiar with computer terminology.
Q. Okay.
But it's stored in the computer somehow?
A. Yes, sir.
Q. Okay.
And you retrieve it and pull it back up if you want to work with it or
do something to it again; is that correct?
A. Yes, sir, I can.
Q. Okay.
Now, once that original is erased, it could never be recreated exactly
again; is that correct?
A. If you're referring to the image in the
computer, no, you won't get that exactly re-created, but we still have the
original autorads, so we can re-create an image from the original autorad.
Q. Okay.
But the way the autorad is placed on the light machine, the differences
in light and everything, it may not be exactly the same the second time around;
is that correct?
A. That's correct. It may not be exactly the same.
Q. Now, in you search for the LH-1, which had
been deleted, you in fact discovered another one that we had been told earlier
that had been deleted, didn't you?
A. Yes, sir.
We did discover one that was still there.
Q. And that was TBQ-7?
A. That's correct.
Q. Now, I believe you testified earlier that
there are no notes or records kept of whether or not you manipulate the
starting point or the center point for the bio-imaging; is that correct?
A. That's correct.
Q. So you have no way of knowing whether or not
you did or did not center those things manually or whether the computer did it
on the other bio-images?
A. No, sir.
Not on each individual image, I don't know.
Q. Okay.
And the only way to know that is to have the original, isn't it?
A. Well, what you would have to have had was, at
the time we did the original image, you'd have to have a copy of a photograph
or a copy of that screen with the computer set up to indicate where I had taken
off bands or moved bands around.
Q. What I'm saying is, though, once that is
deleted from the computer, there's no way to know whether you manually
positioned the center or whether the computer did it?
A. That's correct.
Q. Okay.
And you didn't keep any notes or records as to which ones you
manipulated and which ones you didn't?
A. No, sir.
We don't keep any records like that.
Q. Okay.
And, in fact, on the TBQ-7, the one that we had erroneously been told
had been deleted, when you pulled it up it had in fact been changed manually,
hadn't it?
A. I don't remember exactly, but I think that's
correct. I think I did have a mark on
there that I had done my own or manually overrode the computer.
Q. Okay.
If you had the original, when you pull it up, it's easy to tell if it
was done manually, isn't it?
A. Yes, sir.
It will make a different mark.
The computer makes essentially a minus sign, just a straight mark, and
when I move the mark around, it puts it on as a plus.
Q. Right.
In other words, it will show a minus if it hasn't been manipulated, if
the computer did it automatically, but if you did it manually, it will show a
plus?
A. Yes, sir.
Q. And once those images are deleted from the
computer, there's no way to know how many or if you manually centered those
bio-images, is there?
A. No, sir, there's no way to know.
Q. Okay.
And you don't know because you don't have any independent memory or
recollection of that, do you?
A. No, sir.
I've looked at a lot of images since then.
Q. Okay.
And so there's absolutely no way this jury knows whether or not the
original settings for measuring it were done manually or done by the computer?
A. That's correct.
Q. Now, those could have been preserved if you'd
wanted to, couldn't they?
A. Well -- excuse me -- when you preserve the
images, that takes up space in the bio-image, so eventually you'd have to take
them off, because once it gets full you can't put on any more to edit, so
eventually those have to come off.
Q. Okay.
But there's a simple way to preserve that if you wanted to do it, and
that would be to photograph the screen, wouldn't it?
A. Well, you know, it sounds simple, but
photographing the screen would mean we'd have to set up a time with somebody
from photography and they'd have to come upstairs, set up their equipment, and
take a photograph. And when you do that
for each image we process, that takes a lot of time.
Q. It takes time, but it would preserve the
image so that anybody in the future could look at it and know what you did,
whether it was done manually or whether the machine did it automatically, et
cetera; is that correct?
A. Yes, sir, it would.
Q. Okay.
And, in fact, on your wall down there leading to your office, you have
photographs that were made of screens for visitors there to look at, don't you?
A. Yes, sir, we do.
Q. Okay.
And they're about the size of -- approximately of these photographs of
the autorads, aren't they?
A. Yes, sir, they are.
Q. So it's not that the crime lab doesn't have
the equipment or the capability, it's just you choose not to do it?.
A. Well, it's -- like I said before, it would be
very difficult to do in the amount of time it would take to set all that up.
Q. How much time does it take to photograph a
screen?
A. It wouldn't take much time at all to
photograph it, but getting it set up to do would take a while.
Q. What do you have to do to set it up?
A. You'd have to make arrangements with somebody
in photography for them to come up, and then they'd have to set up their equipment
and, I guess, check the lighting or whatever they would need to do.
Q. Okay.
So what it would mean is that in a murder case each time you would have
to have a technician to come up and photograph the screen?
A. Yes, sir.
And they'd have to do that for each individual autorad.
Q. And once they had their equipment set up and
you pulled the autorad up on the screen, it would just be a matter of pushing
the shutter, wouldn't it, the button for the shutter?
A. Yes, sir, once everything was set up.
Q. And then you'd pull the other one up and the
same thing for the next one?
A. Yes, sir, you could do that.
Q. And so you've got how many autorads here?
A. We have six.
Q. You have six, and then you have the
partials. You have --
A. I think there are four more of those.
Q. Okay.
So it would take ten photographs to preserve those?
A. Yeah.
Actually, I think there's five more of the partials. Yes, it would take ten or eleven
photographs.
Q. Okay.
Who made the decision not to preserve these; do you know?
A. You're talking about the original images?
Q. Yes, sir.
A. In the past, we have not taken photographs
like you're talking about, and we have saved them on the computer for as long
as is possible, but once the computer gets its memory full, then we start
deleting them off.
Q. Now, State's Exhibit Number 129, which is the
rain jacket that was sent to the crime lab, are you familiar with that? That's it there in the back. Have you had a chance to look at State's
Exhibit Number 129?
A. Yes, sir.
I've seen this before.
Q. Okay.
Is that the rain jacket that was delivered to the crime lab by the
district attorney's office or the police department in Gwinnett County?
A. It has the case number and the item number
and the initials on it that indicates that's what it is.
Q. Now, with respect to your databases at the --
there at the state crime lab, can you give an opinion with a reasonable
scientific certainty that those are accurate?
A. The database itself?
Q. Yes, sir.
A. Yes, sir.
Q. Have you examined it to determine whether or
not there's any errors in it?
A. To my knowledge, there are no errors in it.
Q. So to a reasonable scientific certainty you
can say that there are not duplications in there?
A. As far as I know, there are not duplications
in it.
Q. Could there be as many as one?
A. As far as I know, there's not.
Q. Maybe five?
A. As far as I know, there are not any
duplications.
Q. Or maybe as many as ten?
A. As far as I know, there are not any.
Q. And you're as certain of that as you are of
your testimony on the other things here?
A. Yes, sir.
Q. Now, do you exercise the same degree of care
that you do in running your tests each time you have an occasion to take the
evidence out?
A. Yes, sir, we do.
Q. Now, are you reasonably certain that all of
the evidence in this case was preserved in the same manner and with the same
care that you would if it was going to be tested?
A. What are you referring -- are you referring
to that it's preserved in the exact same way like everything is frozen or
everything is refrigerated? Is that
what you mean?
Q. It's preserved in a -- if something was still
going to be tested, it's preserved in such a manner so that if it were tested,
the test would be reasonably accurate and certain so that --
A. Yes, sir, I think it is.
Q. So that the integrity of it is not in any way
compromised?
A. Yes, sir.
Q. Do you recall when we came down to the crime
lab and we viewed all the evidence, and you and Ms. Wilson took it out for us
to look at?
A. Yes, sir, I do.
Q. And that was under your supervision and
control, wasn't it?
A. Yes, sir.
Q. Do you recall taking out Ms. Thompson's
clothing and everything and displaying it on a conference room table there?
A. Yes, sir, I believe I do.
Q. Okay.
And it was laid out on a conference room table?
A. Yes, sir, I think so.
Q. Was anybody wearing gloves or anything?
A. To the best of my knowledge, I don't think we
were, but I'm not absolutely certain.
Q. So everybody was handling these -- you
remember people handling these materials that had blood on them without gloves?
A. I believe that's correct.
Q. Now, after Ms. Thompson's clothing was laid
out, do you recall laying that raincoat, State's Exhibit Number 129, on that
conference room table?
A. I recall laying it out. I don't remember what order it was in, but I
do recall laying it out.
Q. Okay.
And do you recall that when Ms. Thompson's clothing was laid out that
there were little bits of dried blood flaking off all over the table?
A. There may have been.
Q. Is it likely it would have been?
A. It's very possible there could be some.
Q. Mr. Goff, I'm going to show you what's been
marked as Defendant's Exhibit Number 95 and ask you if you recognize that?
A. It's a photograph. It appears to be of a shirt with blood stains on it.
Q. Is that the one Ms. Thompson had or can you
tell?
A. Do you remember what our item number was?
Q. I'm not sure if I know the item number or
not.
A. Okay.
Q. Number six, I believe, on your lab report.
A. I can't say absolutely for certain this is
her clothing because I don't remember independently, but it appears to be.
Q. Okay.
Can you see anything on the table there beside the clothing, any flakes
of dried blood or anything?
A. There are some reddish-brown flakes that
could be some dried blood there on the table.
Q. Okay.
And given the fact that a bunch of bloody clothing was -- dried
clothing, was laid out there, it's likely there would be flakes of dried blood,
isn't it?
A. Yes, sir, it is.
Q. And the raincoat, 129, State's 129, was taken
out and laid on that table there?
A. Yes, sir, I believe it was.
Q. It was taken out of a freezer where it was
being stored; is that correct?
A. I'm not sure it was in a freezer. I think it was in a refrigerator.
Q. Okay.
If Ms. Wilson testified that it was a freezer, would you defer to her
testimony?
A. Yes, sir, I would, because she had possession
of it most of the time.
Q. Okay.
And the jury will remember what she testified to, of course. Now, that was taken out of the freezer and
laid on those dried blood flecks of Ms. Thompson there on that table. Do you --
A. It could have been. If there were flakes on the table, it could have laid on some of
them.
Q. The raincoat wasn't the first thing we looked
at, was it?
A. I can't recall independently exactly which
order we went in, so I'm not sure, you know, which items we looked at and what
order they were in.
Q. Now, at that time, that raincoat was still
being held for possible testing, wasn't it?
A. Yes, sir, it was.
Q. And that's the reason it was being either
refrigerated or frozen?
A. Yes, sir.
Q. And if there was any moisture still left in
that coat when it was taken out of the freezer or storage and you lay it on
that table, it could pick up blood from Ms. Thompson on it, couldn't it?
A. If there was a sufficient amount of moisture
on it and if the flake was small enough, it might pick up a very small amount,
but that's not too likely.
Q. Okay.
And people handling it with perspiration on their hands and handling
this other clothing could have transferred DNA material to that raincoat,
couldn't they?
A. In my opinion, that's fairly doubtful. I don't think you would pick up enough and
get it moist enough to make it stick to something like this raincoat.
Q. Okay.
But things like that have happened in the labs, haven't they?
A. You're referring to our laboratory?
Q. I'm talking about in labs. You know about -- you've had experience with
incidents that have happened in labs.
A. I don't know of anything where someone has
like touched an item that had blood on it and then transferred that blood to another
item, you know, like that. I don't know
of an instance like that.
Q. Okay.
So you don't know whether it could or not; you never tested it?
A. Well, based on my experience when I work with
blood stain evidence, unless the blood is still wet, the likelihood of
transferring a sufficient amount to another item to get a result would be very,
very slim.
Q. Okay.
It might be small, but the likelihood is there, isn't it?
A. I guess you could say the likelihood, you
know, could be there, but it would be very slim.
Q. Okay.
And that's the reason normally people wear gloves when they handle
things like that, isn't it?
A. Well, actually the reason they would wear
gloves would be, number one, to dispose of the gloves if you got some blood on
them and, two, to protect yourself from whatever might be in those blood
stains.
Q. You would agree, though -- you would agree,
though, that that's not a good way to preserve the integrity of evidence that
you might be going to test?
A. I'm not so sure I'd agree with that statement
totally. Like I said before, the chance
of transferring blood over to this coat would be very slim.
Q. So you think there's nothing wrong with
putting it on a table with Ms. Thompson's blood when you may be going to test
it?
A. It would probably have been a better idea if
we'd have wiped the table down in between, but we probably didn't think of
wiping it down in between those two items.
Q. And, in fact, that raincoat never was tested,
was it?
A. No, sir.
It has not been tested for any kind of DNA or blood typing type
analysis.
Q. Okay.
And that the -- the crime lab has the ability to do that, don't they?
A. Yes, sir, we do.
Q. Okay.
And did you discuss that with the police department?
A. Personally, I didn't discuss it with them.
Q. Do you know the reason why it was not done,
why the PCR test was not done? First of
all, tell the jury what a PCR test is so they'll know what we're talking about.
A. Okay.
A PCR is one of the two types of DNA analysis. On the blood stain from the car, I did the RFLP test; the other
is PCR. In PCR, you take a very small
amount of blood stain material, in this case it would be blood stain material,
and you can amplify the DNA to the point that you can test it and get a result.
Q. Okay.
And how do you do that amplification process? I want to move that rain jacket out of the way so you can look
over at the jury.
A. What you do is you extract the DNA from your
sample, and once you extract a small amount of DNA, you go through a process
that he -- as Mr. Moore says is called amplification. You heat up the DNA that you've extracted, and it will split
apart. There are primers that will go
in, that's a very small piece of DNA, and they'll stick to that -- those two
strands of DNA that you've -- that one strand you split apart into two
strands. The primer will stick to each
of those strands. Then it will add
those A's, T's, G's and C's in the proper order. Then you'll have two new strands. And you keep heating and cooling and just repeating that over and
over again till you eventually have enough DNA that you can test.
Q. Okay.
And you've checked that rain jacket, number 129, and there was
sufficient amounts to do that; is that correct?
A. I was involved in a conference, and I was
there, Dr. Herrin was there, and I think Mr. Smeal was there, and we were
looking at the stains on the rain jacket.
And our conclusion was that we -- it might be possible to get a PCR
result, but more than likely we would not get a PCR result from it.
Q. But you never did try, so you don't know?
A. That's correct. We never did try, so we don't know for sure.
Q. And how much do you need for the PCR to work?
A. You need a very small amount. It definitely would have to be enough you
could see, which you can see what's on the raincoat, but the raincoat is not an
absorbent material, so only -- all you have is what is on the actual
surface. I can't give you a number
really in nanograms, for sure, about PCR.
Q. Okay.
But you would have been able to determine pretty early on in the test
whether you had enough or not, wouldn't you?
A. You would go through the amplification more
than likely. You would extract it and
go ahead and go through and try to amplify it.
And, of course, if it amplified, then you had enough.
Q. Okay.
And once you amplified it, then you'd put it in the -- is it the
centrifuge where it would be to determine if you had enough in there?
A. No, sir.
It's according to which way you pursue it. You can either extract the DNA and run what's called a slot blot
and see if you have enough or you can actually extract the DNA from that item
and go ahead and try to amplify it.
After you go through that amplification, you run a gel to see if the DNA
amplified. And at that point, if you
can see amplified DNA, then you know you can go ahead and run your test. And more than likely, you'll get a result.
Q. Okay.
And since you didn't run the test, you can't tell the jury anything
about what the results might have been?
A. No, sir, I can't.
Q. And if you had run the test and there was
enough there to do it, you would have been able to give this jury an opinion
one way or the other whether the blood on that raincoat was Ms. Thompson's,
wouldn't you?
A. What you would get from a PCR test, you would
either include somebody as possibly leaving a stain or the DNA in that stain or
you can conclusively exclude people.
Q. Okay.
So one way or the other, you'd have gotten some kind of result if you
had enough?
A. If I had enough and got a result, I could
have reached a conclusion.
Q. And do you know why that test was not done?
A. Like I said before, when we had that
conference and looked at the stains, at that point, I think it was decided not
to pursue the PCR analysis, mainly since we already had a result on the car
seat.
Q. And wasn't that an economic decision, the
reason it wasn't done?
A. I don't know if it was economic or not. I can't really say for sure on that.
Q. Okay.
The crime lab will not do that unless the county agrees to pay for the
test; isn't that correct?
A. That's correct. We don't have sufficient funds to buy those PCR kits, so either
the law enforcement agency, the county or someone has to buy the kit for us.
Q. And the decision was made not to buy the kit
in this case?
A. As far as I know, it was made not to buy a
kit.
Q. And how much does that kit cost?
A. It's according to which kit you use. There are two kits. They run about $900 apiece. There's a more recent kit that doesn't give
as much information. It's about four
hundred.
Q. Okay.
So if there's enough there, for $900, you would have been able to tell
this jury whether or not that blood on the raincoat would include Ms.
Thompson's?
A. If I'd been able to get a result, yes, sir.
Q. Or whether it would have excluded it?
A. Yes, sir.
Q. Now, at the present time, in DNA testing
there are no national standards, are there?
A. At the time this case was examined, there
weren't. And as of today, there are
some interim national standards.
Q. And by interim, that means temporary, doesn't
it?
A. That's correct.
Q. So there are no permanent national standards
in place for DNA testing?
A. Not at this time.
Q. Okay.
And the ones that are in effect are what's called the TWGDAM guidelines?
A. That's correct.
Q. And that's not the same as the National
Research Council, is it?
A. As far as I know, they're two different
things.
Q. Okay.
And tell the jury what the National Research Council is, if you would?
A. Basically, it's a group of scientists that
looked at DNA procedures and issued a report regarding how to do DNA testing or
how they felt it should be done, and they just dealt with the various
issues. I think they dealt with
extraction, but I'm not sure, and they dealt with calculating frequencies and
other issues that were of interest to them.
Q. Okay.
And was the National Research Council an attempt to get everybody
together, establish standards that everybody would follow, and to have
standards in place for how testing would be done, how results would be
interpreted, how matches would be called, that sort of thing?
A. I'm not sure it was an attempt to really lay
down, you know, permanent protocols for everybody to follow. It was just -- they looked at all the
procedures that were available and they issued suggestions and what their
opinions were about, say, how you calculate frequencies or how you do your
match criteria and things like that.
Q. I understand it's not permanent because it's
an evolving technology; it's changing all the time?
A. That's right.
Q. Okay.
And I understand you have to keep developing your standards as the technology
changes, but the purpose of the NSR was to try to establish some standards, to
try to get people to agree that on certain procedures that would be followed so
that it could be deemed reliable; is that correct?
A. Like I said, I'm not sure if that was the
total purpose of it. I know they were,
you know, studying issues and looking at everybody's opinion, all the members
of that research council's opinions, and trying to formulate a report with
recommendations, but I don't know if, you know, the purpose was going to be in
the end to say this is how you're going to do this, this is how you're going to
do that.
Q. They did give suggestions, though?
A. Yes.
They did give suggestions.
Q. And the NSR, is that a group of scientists
from all over the country or what is that?
A. It's really NRC.
Q. I'm sorry, NRC.
A. Say that again?
Q. Is that -- who's members of that? Who contributes to that?
A. I can't name the members, but they are
scientists from around the country that are members of that.
Q. Okay.
So it's not just one little group up in Washington. It's people from all over the country that's
contributing to it?
A. Yes, sir.
Q. Now, does the Georgia state crime lab follow
the suggestions in the NRC guidelines?
A. We have went through it and we've looked at
all their suggestions. We don't
necessarily agree with everything they said, but I'm sure there are things in
there that they say to do that we do.
Q. And there are things that they say that you
don't do?
A. That's correct.
Q. And they recommend in the NRC true blind
proficiency testing, don't they?
A. How do you define true blind proficiency
testing?
Q. I'm not sure if I know the definition, but I
can show you what Dr. Herrin testified to.
Maybe that would help.
A. Okay.
MR.
SMEAL: Your Honor, I'm going to object
to the reference to someone else's testimony.
This witness, obviously, that day was a sequestered witness. He was not there when Dr. Herrin testified. I don't believe it's appropriate for him to
be referring to a transcript of some other witness.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I had no intention
-- when Dr. Herrin testifies, I can ask him about it, but he asked me what I
meant by that, and I'm not a scientist, so I was trying to attempt to show him
what -- how Dr. Herrin had
answered the question.
THE
COURT: Well, you can pose the question
if you wish, but I don't believe that -- I don't believe -- well, the
objection's sustained.
MR.
MOORE: Can I allow him to look at the
document without --
MR.
SMEAL: Your Honor, Mr. Moore either
knows what he wants to ask or he doesn't know what he wants to ask, but it's
inappropriate for him to be relying upon some hearsay statement by another
witness to pose a question.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I'll attempt to ask
the question.
BY
MR. MOORE:
Q. If I understand true blind proficiency
testing, that would be where samples, known samples, and known perhaps mixed
samples, that sort of things, would be submitted to the crime lab, you would
not know that they were not real samples that were being tested. And then you would run your test on them,
and then the outside agency would evaluate those and see how well you did in
your test results, whether or not you determined when they were mixed samples,
whether or not you got the correct results, or that sort of thing. Does that define what I mean by blind --
A. Yeah.
I think I know what you're talking about now. What you're talking about is a proficiency test that's submitted
to the lab as a case, essentially, without our knowledge that it's a
proficiency test. And then we run
through it just like any other case and issue a report, and then we, I guess,
find out later that it actually was a proficiency test.
Q. And it might be a series of samples and not
just one sample?
A. Yes, sir, it could be.
Q. Okay.
Are you aware of whether that procedure is followed by labs?
A. As far as I know -- are you referring to our
lab in particular, or just labs?
Q. Well, does your lab follow it?
A. Okay.
As far as I know, our lab doesn't, you know, unless somebody came to me
and said one had passed through, and it was a proficiency test and we didn't
know it. You know, there'd be no way
for sure that I'd know it had taken place.
Q. Now, you -- my memory may be wrong. Did you ever work at another lab besides the
state crime lab?
A. No, sir, I haven't.
Q. Okay.
I've got the wrong one.
Okay. Do you know whether or not
blind proficiency testing is done by other labs in the United States that do
DNA testing?
A. Are you talking about the ones that come
through as a case where you really don't know?
Q. Yes, sir.
A. To my knowledge, I can't say. I'm not that familiar with their procedures.
Q. You just don't know, then?
A. Right.
I just don't know.
Q. Now, would you agree that a two-probe match
is by no means an identification?
A. Yes, sir.
Q. All you could say in that case would be that
it wouldn't -- it wouldn't exclude the suspect; is that correct?
A. Well, what we would say is we would say we
have a match using probe A, probe B, and then we would give a frequency.
Q. Do you recall testifying in the case of State
of Georgia v. Joseph Patrick Washington in the Augusta Judicial Circuit in
1994, November 1994?
A. It's been a long time, but I think I remember
testifying over there.
Q. Okay.
And do you recall testifying that -- the question was, 'Then in this
case, when we have a two-probe match which you're only willing to say won't
exclude a suspect.' And your answer,
'That's correct. I would say that's not
an identification, but they do not exclude that individual as being the donor
of that sample.' Do you recall that?
A. Yes, sir.
Q. Is that what you testified to?
A. I believe that's correct.
Q. So a two-probe match would be not sufficient
for an identification?
A. No.
It wouldn't be a match where I would go in and say that this person, you
know, left the DNA to the exclusion of everyone else.
Q. Would you agree, Mr. Goff, that your probe
PH-30 and your probe LH-1, where there was no partial digestion, are your two
best probes in this case?
A. No, sir, I wouldn't agree with that really.
Q. So you don't think partial digestion has any
effect?
A. No, sir.
Once you've done the partial digestion experiment, you can confirm what
contributed the extra bands, so really the information for all the probes is
good.
Q. Now, the partial digestions, is that
generally accepted in the scientific community throughout the United States?
A. Are you referring to the experiment or are
you referring --
Q. The experiment. The partial digestion experiment you used.
A. I'm not sure. That's a protocol that Dr. Herrin wrote, and I don't know whether
he based that on what other people do or whether he came up with that
himself. It does work.
Q. So you don't really know, though. You just apply the test like he told you to,
and if it fits the criteria he told you to, then you declare it okay?
A. I follow the protocol as to how to handle it
when you have a partial digestion.
Q. Okay.
And if Dr. Herrin's protocol says that that's okay, then you say it's
okay in your results; is that correct?
A. Yes, sir.
And I also will -- you know, I can look at it and think about it and it
is a reasonable way to do it.
Q. Okay.
You read publications and you keep up with the technology in the field
of DNA, don't you?
A. I try to.
Q. Do you remember any publications regarding
the use of partial digestion experiments?
A. To be honest, I don't remember reading one.
Q. Wouldn't you have noticed something like that
since you do it at the crime lab?
A. Generally speaking, you know, I read the
publications, but I can't remember every one I've read. I don't remember reading one about partial
digestions.
Q. Have you ever published anything about
partial digestion experiments?
A. No, sir.
Q. To your knowledge, has Dr. Herrin ever
published anything regarding partial digestion experiments?
A. To the best of my knowledge, he hasn't.
Q. He has not?
A. To the best of my knowledge. Now, I can't speak for everything he's
published.
Q. I understand. But I'm asking if you've seen if he's published it?
A. I don't think I've seen it.
Q. Okay.
Now, partial digestion is an indication of some kind of contaminant or
something, isn't it?
A. Yes, sir, it is.
Q. Which causes the Hae-III solution not to cut
the DNA correctly?
A. Well, it causes it to skip places where it
should have cut it.
Q. Okay.
Ordinarily, it would cut it every place; is that correct?
A. It would ordinarily cut at every one of the
restriction sites or the areas that it's -- have the GGCC.
Q. Okay.
And that's not something you can see.
That's not something you put under a microscope and look at, is it?
A. No, sir, you can't.
Q. Okay.
You can only tell if it worked afterwards from your result?
A. That's correct.
Q. Okay.
Now, you have no way of knowing how many pairs or -- not pairs -- I
don't think that's the right word -- how many bases it skipped before it cuts
again, when it does that, do you?
A. Well, I don't know how many of the
restriction sites that it has skipped.
Q. I mean, it could be one or it could be ten?
A. That's correct.
Q. You don't have any way of knowing?
A. No, sir.
Q. How many could it be? How far could it go?
A. I can't really give you a figure since I
don't know for sure how many restriction sites are in that strand of DNA, but,
you know, the cutting would be fairly well at random so, you know, it could
skip one or it might skip three or four.
Q. And that could give you unusual bands, then,
when you try to render a result?
A. Well, what it would do, it would give those
extra bands that I've shown to you that are above the primary bands.
Q. Okay.
Are you familiar with the term mixing experiment?
A. Yes, sir, I'm familiar with that term.
Q. Okay.
And was any such experiment run in this case?
A. No, sir, there wasn't. And usually, in a laboratory like a forensic
lab you don't do a mixing experiment. I
don't know of anybody in a forensic lab that does one.
Q. Okay.
And the reason forensic labs don't do them is because you don't have
enough of a sample, isn't it?
A. That's correct. There's not enough sample to conduct a mixing experiment, and
there have been studies published that say that samples from, say, evidence
samples, with the contaminants in them, they may migrate slightly differently
even if they're from the same person, say, as your known sample, so a mixing
experiment really wouldn't work.
Q. Okay.
But it's used all the time routinely in paternity cases, isn't it?
A. I've read it's used in paternity, and I
believe that's correct.
Q. And the reason forensic laboratories don't do
it is you rarely have enough of a sample; isn't that correct?
A. That's correct. We usually don't have enough.
If we had split sample, say, in this particular case, we might not have
gotten an answer.
Q. And the crime lab does not test for band
shifting, do they?
A. No, sir. There's no reason to test for band shifting.
Q. You say there's no reason. You agree that bands can shift, don't you?
A. Yes, sir.
They can shift, but the thing about band shifting is they will never
shift into a match.
Q. They can shift away from a match, but not
toward a match?
A. That's correct. To shift bands into a match, that would be, you know, the
furthest explanation you could get on band -- on a match being caused by -- a
false match occurring, rather.
Q. Do you know why they shift away from each
other when you call it a match when it is band shifting?
A. Do we know why?
Q. Yes.
A. Not really.
A contaminant usually causes the shift to occur.
Q. Okay.
And so since you don't know why, you can't say scientifically that it
couldn't shift either direction, can you?
A. It can shift in any -- you know, either up or
down; but, you know, if you take two DNA samples from two different
individuals, in my opinion, I don't think there's any way you could get them to
shift or one of them to shift where they would match each other.
Q. You use what's called a 4 percent variance
technique?
A. Yes, sir.
That's our match criteria.
Q. Okay.
And you convert that to numbers after you -- you base it on the size of the largest sample that you have
there. Maybe sample's not the right
word, but --
A. Are you referring to how we actually
calculate the match criteria and see --
Q. Yes.
A. What we'll do, say you have two bands, one
from your known, one from your unknown.
The smaller band is one thousand base pair long, so you'll calculate 4
percent of that is I think 40, and if you're up -- your other band is say
1,030, then you would add that 40 to the 1,000, you have 1,040, so your bands
would fall within that 4 percent range.
Q. Okay.
And at some point when you compute those numbers, you come to a point where 40 would be included but 41
would not?
A. That's correct.
Q. Okay.
And if you had a slight shifting there of the bands, then it could fall
within 41 and be included, couldn't it?
A. I don't -- I don't -- I don't really think
I'm getting your question.
Q. Okay.
If the band were at one place and you computed it and it was 40 --
A. Yes.
Q. -- okay, was your variance that was
allowed. Then if that band -- maybe I'm
not asking the question right. Maybe
I'll try again. This 4 percent, how was
that arrived at?
A. That was arrived at by taking the same DNA
sample and running it on different gels numerous times. We used more than one DNA sample. We used numerous samples that we knew were
the same, ran them on different gels and calculated the fragment size to see
how much variance we had in our system.
Q. Okay.
And that's not a nationally accepted standard either; that's something
the crime lab developed. Is that
correct?
A. Each individual laboratory develops their own
match criteria.
Q. Okay.
Now, in developing that, do you know why the 4 percent method was chosen
as opposed to the plus or minus 2 and a half percent like the FBI uses?
A. Yes, sir, I do. The 4 percent is a lot easier to explain to someone. The plus or minus 2 and a half involves
counting 2 and a half percent from one sample, say the lower sample going up, 2
and a half percent coming down from the other sample and see if they
cross. So it's a lot harder to explain
that 2 and a half plus or minus.
Q. So the 4 percent was chosen simply for
expediency to be able to explain it in court?
A. Well, after we went through our, you know,
checks to see what our variance was, then we just decided to say 4 percent from
the lower. You know, I guess we could
have almost said plus or minus 2 percent; but, you know, it's a lot harder to
deal with that plus or minus 2 percent when you're explaining.
Q. Plus or minus 2 percent is not the same thing
as 4 percent, is it?
A. No.
It won't be exactly the same, but it will be close.
Q. Now, the databases that we've talked about,
those were gathered by volunteers at clinics; is that correct?
A. Yes, sir.
Q. Okay.
And where were those clinics located?
Were they geographically spread out?
Are they all in one place?
A. The majority of the samples came from a
health clinic in -- I think it's in DeKalb County. There are some samples from a clinic in Floyd County, and I think
the other clinic was in Albany.
Q. Okay.
And it was just whoever volunteered was who got included; is that
correct?
A. Yes, sir, that's correct.
Q. People who chose not to volunteer didn't get
their blood included?
A. That's correct.
Q. There was no scientific going out and saying
we're going to pick a random group of people and then we're going to get --
randomly select samples from them?
A. Well, the trouble with doing that -- it
sounds good, and it would be a good idea if we could do it. But, say, in the state of Georgia what we
would have to do is get a number assigned to everybody in the state, and then
we'd have to randomly pick numbers.
Then we'd have to go to that person and say you're going to give us a
blood sample. And that's not going to
work. People aren't going to do that.
Q. Has anybody ever considered trying to do
something similar to that; for example, getting all the law enforcement
agencies in the state to have the people to volunteer to agree to be part of a
random group and then they'd be randomly selected in that group who's going to
be tested?
A. As far as I know, we've never considered
that; and, you know, Dr. Herrin may know more about that than I do since he
helped set up the database.
Q. Okay.
And you don't have any personal knowledge of the database, do you?
A. What way are you talking about?
Q. You didn't help set it up, you didn't go out
and help collect the blood, or anything like that?
A. I didn't help collect blood or anything like
that, but I did extract some of the bloods and carry them through the procedure
to come up with a banding pattern.
Q. As far as the database itself, though, Dr.
Herrin developed that, didn't he?
A. For the most part he went through the, you
know, the procedure of approaching the clinics and setting up the volunteer
system and everything.
Q. Okay.
And the database itself that's in the computer, do you know anything
about the computer program that runs it?
A. Are you talking about the software?
Q. Yes, sir.
A. I'm not really familiar with it. I know how to operate it, and, you know, I
know how to check it to see if there's anything wrong with it, but as far as
actually getting the software out and looking at the software and telling you
what each line means, I couldn't do that.
Q. It's kind of like -- I don't know if you use
word processing or not, but kind of like with WordPerfect, my secretary may be
able to type in and produce documents, but she doesn't understand how the
innerworkings of the machine works.
A. That may be correct.
Q. Is that similar to what --
A. You know, like I said, I know how the program
works, and I know when it's working properly or not, but, you know, I can't
take it out and look at it and say, well, this line says this and that means
it's doing this.
Q. And you're relying on that program that Dr.
Herrin wrote to be working correctly?
A. Yes, sir.
I do rely on it to work correctly.
Q. You put the data in and you accept whatever
comes out?
A. Yes, sir, I do. I can also, if I wanted to, I could go back and do a check by
hand to see.
Q. And if the database were not correct, then
that would affect your figures, wouldn't it, your statistical figures?
A. Theoretically, it could.
Q. You say theoretically. If you had an incorrect database that had
duplications in it, would that not affect your calculations?
A. Well, if you had a duplication, if, say, on a
particular case that duplication wasn't used, it really wouldn't have much of
an effect on your frequency. You know,
if it did include that duplication, it would have more effect on your
frequency.
Q. But if you didn't know it was there, you
wouldn't know whether it was being included or not, would you?
A. That's correct until, you know, it was
identified.
Q. And you wouldn't have any way of knowing how
much it would affect your calculations?
A. Well, like I said before, you know, if you
have one duplication, it wouldn't affect them a whole lot. But, you know, it would have an effect, but
it wouldn't be --
Q. The more you had, the more effect you'd have;
right?
A. Yes.
The more you had, the more effect you'd have as long as they were being
used when you were doing the frequency calculation.
Q. This new probe LH-1, the one that you have
now --
A. Yes, sir.
Q. -- do you know how many cases in the database
are similar enough to this case to be considered?
A. If you'll give me just a minute, I think I
can figure it out. [Pause] Okay.
In the black database -- well, excuse me, let me go back and re-figure
this a little bit differently. You're
wanting to know how many samples?
Q. How many samples are the same size that would
be considered in this case to decide whether it's a match or not, you know, on
each one?
A. Approximately the same size?
Q. Approximately. I realize you don't have your computer here.
A. [Pause]
Okay. On the Caucasian database,
there should be two samples, which would be one sample from the database and
Ms. Thompson's sample.
Q. So there's one other sample in your database
like the one we've got in this case in LH-1?
A. That's what it appears to be. And on the black database, it appears that
Ms. Thompson's sample is the only one that's similar.
Q. Okay.
A. Well, actually, the only one that's
counted. Since there's not one in the
database that is similar, she would be the only one that would be counted.
Q. Does that cause any problem in your
calculations?
A. No, sir, it doesn't.
Q. The fact you've only got one sample in your
database?
A. Well, only one sample that is similar. No, it doesn't cause any problem.
Q. That doesn't affect your calculations?
A. No, sir, it doesn't affect our calculation.
Q. Now, when we came down to the crime lab to
view the bio-images and when you and Dr. Herrin assisted us in doing that, you
had two machines there, You had an old
machine and a newer machine.
A. That's correct.
Q. And I forget the name of the newer machine,
Sun something or the other?
A. Well, I don't know the exact name. They're both a bio-image system. One is just a newer instrument.
Q. Okay.
And when you were pulling up the LH-1 for us, you were experiencing some
difficulty in knowing which keys. Dr.
Herrin was coaching you as to which keys to use, wasn't he?
A. Yes, sir.
Because there's a setting on there for drawing the lanes, when you draw
it up, and it was on a different setting.
And it's much more difficult to draw the lanes on that other setting, so
I wanted him to get it back on the original setting that it should have been on
in the first place.
Q. How many vials of blood remain in the -- from
the case?
A. The only ones that I know for sure are still
around are the two tubes from Mr. Chapel and the one tube from Ms. Thompson.
Q. Okay.
Now, which ones were tested, the gray tubes or the red tubes?
A. From Emma Thompson, I have to look at it to
be sure, but I'm almost certain it's the gray-stoppered tube.
Q. Okay.
And that's the one that contains preservatives; is that correct?
A. Yes, sir, it does.
Q. And there were other vials originally. Do you know what happened to those?
A. Are you referring from Emma Thompson?
Q. From either one of them, Mike Chapel or Emma
Thompson.
A. From Mr. Chapel, I think both tubes are
here. He had two purple-stoppered tubes,
and I think they're both here.
Q. Okay.
A. Ms. Thompson, usually, our tox section, when
they get blood samples in, they only retain them about six months or maybe a
year and they destroy them.
Q. And so those have probably been destroyed in
this case, then?
A. Probably.
You'd probably have to ask somebody from tox to be sure because they
could check and find out.
Q. And there's one case that Mr. Smeal asked you
about on direct where a probe was mislabeled.
Are you familiar with that?
A. Yes, sir.
Q. And a lady at the crime lab -- it was
actually a technician was actually performing the test using the probes, and
she used the wrong probe, didn't she?
A. Yes, sir.
She was supposed to use the probe
YNH-24, and she accidentally put the probe TBQ-7 in on the membrane.
Q. Okay.
And it was some time before you caught that error?
A. Yes, sir.
I think it was when I did the actual sizing of the bands.
Q. Now, does the crime lab use the same
standards as is used in diagnostics by research and doctors for determining
whether or not they'll interpret a sample?
A. Actually, I can't answer because I'm not
familiar with what kind of standards they use.
Q. Would you agree the standards ought to be the
same for both?
A. If you're referring to diagnostics and medical
--
Q. Treating someone for something or for
paternity, that sort of thing.
A. Actually, our standards probably are a little
bit higher.
Q. Now, coming back to your databases, when you
were doing those, how did you determine a person's race?
A. By whatever they put on the outside of the
test tube. Either the person drawing
the blood or the person who actually gave the blood indicated their race.
Q. Okay.
And so if they put a white, then they were considered white? If they put black, they were considered
black?
A. That's correct.
Q. Okay.
And we're all aware that there's all kinds of variations in between,
dark black people, light brown, and they made their own determination of which
database they'd be included in?
A. Yes, sir, they did.
Q. Okay.
And the crime lab didn't really have any control over that?
A. No, sir, we don't.
Q. Now, you talked about the incomplete
stripping, and I believe there's some evidence to that in this case; is that
correct?
A. Yes, sir, there is.
Q. Now, you told the jury that the way to
determine whether or not that happened was simply to take the previous autorad
and lay it over it and see if it matched; is that right?
A. That's correct. That's what you do. You
do a visual examination and see if you have a visual match up. And if you do, then you know it's incomplete
stripping.
Q. Okay.
And you told us on YNH-24 that there was a one in forty-eight chance of
just a random match on there?
A. Well, not actually that. What you would say out of that one in
forty-eight is if you took a group of fifty people and you compared them to the
pattern Ms. Thompson has, probably one of them would have a pattern with that
probe that would be similar.
Q. Okay.
And so if you took one probe and lay it on top of another one, there's
approximately a one in forty-eight chance that the one on that probe will
happen to be in the same place as the one on the other probe that you're
overlaying?
A. When you're talking about that particular
pattern, that's true.
Q. And so you can't really tell for sure with
this overlaying whether or not that was an incomplete stripping or whether it
would have been a band that was there?
A. Actually, you can because with the probes we
have, generally, you get two bands.
Sometimes you get one. Very
rarely, you'll get three. So if you
have over two bands in a lane and you can overlay the previous autorad, then
you can account for those extra bands as being incomplete stripping.
Q. But you're just making that assumption
without computing the probability that one would happen there randomly in both
of those places?
A. There's no real need to do that. When you look at the intensities of the,
say, I think it was on MS-1, I had incomplete stripping. You have two dark bands which are obviously
primary bands. You have two light bands
and you know those two light bands are there for some other reason.
Q. Okay.
And you have very light bands a lot of times where you've got a little
sample material to work with, don't you?
A. Well, that's true. You would have light bands where you have a small amount of
sample.
Q. And so you're just making that assumption
that when you lay one on top of the other, that's a good way to decide that
that was incomplete stripping?
A. In my opinion, that is probably the best way
to do it.
Q. Okay. But you haven't computed the likelihood that that could happen
randomly by overlaying those two, have you?
A. I haven't, and I'm not sure, you know, I
would know exactly how to go about computing that likelihood.
Q. If you could come down to the jury to show
some things, Mr. Goff, I would appreciate it.
A. [The witness stepped down from the stand.]
Q. And if you could -- if you don't mind, I'm
going to repeat it at one end of the jury and the other, because it's hard for
all of them to see.
A. Sure.
Q. I'm showing you what's been marked as State's
Exhibit Number 140B, which is a photograph of YNH-24.
A. Yes, that is YNH-24.
Q. Okay.
And on YNH-24, if you could show the jury which one is the car seat and
which one is Ms. Thompson and which one is Mike Chapel.
A. All right.
In this lane you've got the banding pattern from the car seat. These are the two primary bands. In this lane you have the banding pattern
from Emma Thompson. In this lane you
have the banding pattern from Mike Chapel.
Q. Okay.
And on this particular probe, all three of those are a match, aren't
they?
A. If you only went by a match criteria, the top
band would most likely and, in fact, probably would be a match. The bottom band would probably be a match,
too, if you only took into account the match criteria and only this probe.
Q. Okay.
Let's go down to the other end and let the people down here see,
too. Now, if you would, once again,
point out the three there so the people down here can see.
A. Okay.
In this lane you have DNA from the car seat. Here's the two primary bands.
In this lane would be the DNA sample from Emma Thompson. In this lane you have the DNA sample from
Mr. Chapel.
Q. Okay.
And all three of those bands are from Mr. Chapel's blood, Ms.
Thompson's, and the blood from the car seat?
A. On the top band they would and probably on
the bottom band they would if you only take into account this probe.
[The
witness returned to the stand.]
BY
MR. MOORE:
Q. Now, Mr. Goff, when you have a sample like
that where it's obviously from your testimony all three of them match,
shouldn't that be excluded from any probability calculations?
A. No, sir, it isn't, but it's because you have
more information. If that was the only
probe we got and the only result, we'd probably end up calling it inconclusive,
and that would be the end of it. That
would be all we would do. But we have
other probes with other results, so you have to take everything you have into
account.
Q. Now, this partial digestion experiment that
you do, who developed that?
A. As far as I know, Dr. Herrin came up with
that.
Q. Okay.
At the Georgia state crime lab?
A. Yes, sir.
Q. Okay.
And how long has that been being done?
A. Honestly, I can't tell you. I've done it before, but I can't tell you
how long ago he put that in the protocol.
Q. Do you know whether or not the FBI uses such
a procedure?
A. Well, I've been to the FBI school, and I
don't remember if they've got a procedure like that. I can't recall it.
Q. And when you do your bio-imaging, which is
where you go in and the computer marks the various bands on the photograph, or
not on the photograph but on the computer screen, then like you testified
earlier, if you don't believe one of them's a band in your judgment, then you
can delete it; is that correct?
A. Yes, sir, that's correct. I ultimately make the final decision as to
what is a band and what is not a band.
Q. Okay.
And that's a judgment call on your part?
A. It's based on my experience doing DNA
testing.
Q. And since you don't keep any notes or records
of those bio-images when you do that, you don't know whether you did that or
not when you conducted these original calculations of tests, do you?
A. Yes, sir.
When we originally did it, there was no way to keep up with whether you
had deleted a band or not once the image is deleted, so I don't know if I had
deleted off any bands or added any bands.
Q. And when you do your frequency calculations,
what is your margin of error, plus or minus?
A. Are you referring to like the final number
that we come up with?
Q. Well, is it like 5 percent or is it --
A. Well, we don't have, I guess, you'd say a
margin of error defined. What I say is
this is an estimate -- I mean, this is -- the frequency you come up with, that
one in ten billion is the estimate. We
don't say it's actual, you know, it's going to be one in ten billion. It's an estimate.
Q. So there's no margin of error like within 5
percent or within 2 percent or --
A. No. I
can't really give you anything like that.
Q. Okay.
You understand what I'm talking about?
A. Yeah, I think I know what you're talking
about when you -- I think you're --
Q. When you said it was one in a thousand, for
example, I'll give you an example --
A. Okay.
Q. -- and there was a 5 percent margin of error,
it could be anywhere from 950 to 1,050, couldn't it?
A. That -- yeah, that's what you're trying to
look for. We don't have anything like
that set up on our frequency calculation.
We just give you that estimate, and it's going to be somewhere around
that.
Q. You would agree there is a margin of error in
those calculations?
A. Well, there's going to be variance in those
calculations according to what database you use. It may -- more than likely, it's going to be fairly minor.
Q. Okay.
But there is one there based on your database? There is a margin for error?
A. I still don't quite understand what you're
getting at.
Q. Okay.
You're giving an opinion that one in ten billion --
A. That's correct.
Q. Okay.
There's some margin of error there.
Is it, you know, 5 percent or what?
A. Well, are you saying if we went to another
database or somebody else looked at it, and instead of saying one in ten
billion, they said one in eight billion or one in twelve billion; is that what
you're getting at, it could range in that area?
Q. Well, your margin of error depends on your
sampling technique, doesn't it, to a large extent?
A. I'm not really sure about that.
Q. Okay.
If your sample is not truly a random sample and does not truly reflect
whatever it is you're trying to predict, then your numbers are going to have a
much wider margin of error, aren't they?
A. That sounds reasonable, but I'm not real
familiar with that.
Q. For example, if you went out -- in marketing
research, they use random sampling techniques, and you sent a letter out to
everybody asking them to fill it out and send back, the questionnaire, and only
5 percent of them filled it out and sent it back, then your database from what
you're going to project is very poor at that point because 95 percent of the
people didn't send them back; is that correct?
A. That sounds true.
Q. And if you did a more thorough method where
you went out and you went house to house and knocked on doors and asked people
to talk to you and you got 90 percent of the people to agree to participate,
then the results that you were going to project would be much more likely to be
reliable within a smaller margin of error?
A. That sounds like that would be true.
Q. Are you familiar with those kind of sampling
techniques?
A. I know what you're talking about in general. You know, specifically, I couldn't get into
it.
Q. Mr. Goff, when we came down to the crime lab
and viewed the evidence we talked about earlier --
A. Yes, sir.
Q. -- isn't it true that you took the crime lab
report and you laid the evidence out in the order it was listed on there, that
you went down the list of the crime lab report?
A. I believe that's correct.
Q. Okay.
And is Ms. Thompson's clothing listed on there before the raincoat,
State's Exhibit 129?
A. Yes, sir, it is.
Q. And so based on that, would you believe that
you did lay out Ms. Thompson's clothing prior to laying out the raincoat?
A. Yes, sir, I think that's correct.
MR.
MOORE: That's all the questions I have
right now, Your Honor.
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: How long do you think you're
going to be on redirect and recross?
MR.
SMEAL: Probably not too long on
redirect.
THE
COURT: We've been here a while. I think we'll take five minutes and then
we'll finish up the examination of this witness and then we'll recess for
lunch. Okay.
[Bench
conference concluded.]
THE
COURT: We're going to be a little while
longer with this witness, so I think -- the best I recall, I think we're sort
of due for a recess. We'll take a short
recess, five minutes, and then we'll finish up with this witness and then we'll
recess for lunch. We'll take five
minutes. If you'll go with the bailiff,
please.
[The
jury was excused from the courtroom for the recess.]
THE
COURT: Anything else before we recess,
take a short recess, Mr. Smeal?
MR.
SMEAL: No, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: We'll take five minutes.
[Break
taken]
THE
COURT: Is the state ready?
MR.
SMEAL: Yes, Your Honor.
THE
COURT: Is the defendant ready?
MR.
MOORE: We're ready, Your Honor.
THE
COURT: Bring the jury back, please.
[The
jury returned to the courtroom and proceedings resumed, as follows.]
THE
COURT: Go ahead when you're ready, Mr.
Smeal.
MR.
SMEAL: Thank you, Your Honor. The state has just a couple of questions for
Mr. Goff.
REDIRECT EXAMINATION
BY
MR. SMEAL:
Q. Mr. Goff, you've testified to displaying some
evidence at the crime lab to the defense; is that correct?
A. Yes, sir.
Q. I'm not sure I caught the date of that. What was the date of that display?
A. I can't give you an exact date. I didn't write it down. It's been in the past, I'd say, in the past
six months to eight months.
Q. From today?
A. From today.
Q. Sometime in 1995?
A. Yes, sir, I believe it was this year.
Q. At that display, did you actually observe the
transfer of any blood from any item to any other item?
A. No, sir.
Q. Did you regard the probes in which there was
no partial digestion and the probes in which there was partial digestion as
providing equally valuable information in terms of your results in this case?
A. Yes, sir.
Q. The blood from Emogene Thompson that you used
in your DNA analysis, did that come from the tube which you obtained from
Jennifer Wilson?
A. Yes, sir.
Q. Did you use the blood in any other tube for
purposes of your DNA analysis?
A. On Emogene Thompson?
Q. Yes.
A. No, sir.
Q. Okay.
You did not use the blood that may have been in any other tubes?
A. No, sir.
Q. The mislabeling of the TBQ-7, was that
mislabeling identified prior to your reporting out any result in this case?
A. Yes, sir, it was.
Q. And did you detect that because of the K562?
A. Yes, sir.
Q. And that's what K562 is designed to do; is
that correct?
A. That's correct.
Q. If the computer scans, for example, a smudge
on an autorad, would you delete that as a matter of course?
A. If it placed a mark on it and called it a
band, yes, sir, I would delete it.
Q. And have you ever seen that happen?
A. Yes, sir, many times.
Q. And Mr. Moore's asked you about your visual,
the use of visual criteria. Based upon
your experience in determining matches and then comparisons, have you received
training in that area?
A. Yes, sir, we do.
Q. Is that included in the FBI training that you
attended in Quantico?
A. Yes, sir, I think it was.
Q. Have you had to look at autorads as part of
your training?
A. I've looked at numerous autorads.
MR.
SMEAL: No further questions, Your
Honor.
THE
COURT: Recross?
MR.
MOORE: Your Honor, I have a few
questions.
RECROSS EXAMINATION
BY
MR. MOORE:
Q. I'm going to show you what's been marked as
Defendant's Number 96, and ask if you'd look at that and see if you can
identify that.
A. Yes, sir.
This is entitled DNA Technology in Forensic Science and it's by the
National Research Council.
Q. And are you familiar with that publication?
A. To an extent.
Q. And is that the publication that I was
referring to when I asked you questions about it?
A. Yes, sir.
Q. Okay.
MR.
MOORE: Your Honor, for the record, I
would tender Defendant's Exhibit Number 96 which is a book that we've had
questions asked about here as part of the record.
THE
COURT: Mr. Smeal?
MR.
SMEAL: No objection for the purposes of
the record only, Your Honor. Obviously,
it would be inappropriate for this book to go to the jury.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I wasn't suggesting
this go to the jury. I just want to
make it a part of the record.
THE
COURT: It's admitted without objection
for the record only.
MR.
MOORE: I would also tender Defendant's
Exhibit Number 95, which is a photograph.
MR.
SMEAL: No objection.
THE
COURT: Defendant's 95 is admitted
without objection.
MR.
MOORE: That's all I have, Your Honor.
THE
COURT: Anything else of this witness?
MR.
SMEAL: No, Your Honor.
THE
COURT: Is this witness to remain on
call?
MR.
SMEAL: Yes, please.
THE
COURT: All right. You'll be subject to being recalled, but you
can come down. Thank you.
THE
WITNESS: Thank you.
[The
witness stepped down from the stand.]
THE
COURT: Would you approach the bench,
please?
[Counsel
approached the bench and the following conference ensued outside hearing of the
jury.]
THE
COURT: So we got --
MR.
SMEAL: George Herrin.
THE
COURT: Okay. How long do you think he'll be on direct?
MR.
SMEAL: I anticipate much of what --
much has been covered through Mr. Goff, so on direct I don't think the state
will be that long.
THE
COURT: Okay. Do you have any idea how long your cross will be?
MR.
MOORE: Your Honor, I would think it
would be probably close to an hour.
THE
COURT: Okay. We ought to get through, it looks like, this afternoon if that's
witness. It ought to wind up this
afternoon anyway and we'll probably be ready to start on defense case tomorrow,
then.
MR.
MOORE: And I think Mr. Porter's got one
witness who's going to be very short, Your Honor.
THE
COURT: Okay.
MR.
PORTER: Very short.
THE
COURT: Okay. Good. All right. Any reason that an hour's not sufficient to
recess for lunch at this point?
MR.
SMEAL: No, Your Honor.
THE
COURT: Okay. We'll take an hour and then we'll recommence.
[Bench
conference concluded.]
THE
COURT: Everybody ready for lunch?
[The
jurors respond.]
THE
COURT: We'll recess at this point for
an hour, just over an hour. We'll
recess for lunch until -- it's now almost 12:45. We'll be in recess until 1:45.
I'll
ask you to leave your pens, pads, and notes in your seats. They'll be waiting on you when you return.
I
remind you again that you ought to keep an open mind, you've not heard all the case
presented, you ought not to make up your own mind, you ought not to commence
any discussions or deliberations about the case amongst yourselves or with
anybody else or allow anybody else to discuss the case with you or in your
presence in any manner whatsoever.
Okay. We'll be in recess until
1:45. If you'll go with the bailiff,
please.
[The
jury was excused from the courtroom for the lunch recess.]
THE
COURT: Let me ask, just as a little
recordkeeping here, on the defendant's exhibits, I don't show a Defendant's
85. Is that one that I did not note or
do we have an 85?
MR.
MOORE: Your Honor, I couldn't give you
an answer. I'm going to have to consult
the court reporter to see if she can tell me.
THE
REPORTER: There is no 85.
MR.
MOORE: Apparently, we don't have an 85,
Your Honor. Apparently, we omitted it.
THE
COURT: Okay.
MS.
ROGAN: Oh. I know what it might have been.
I had a photograph marked yesterday which I did not have the witness
identify. I do remember that.
THE
COURT: Okay. That's fine. I just
wanted to make sure I didn't miss one during the course of the testimony. Okay.
MS.
ROGAN: It was marked but never
identified.
THE
COURT: All right. Anything else at this point, Mr. Smeal?
MR.
SMEAL: No, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: We'll be in recess until 1:45.
[Lunch
recess]
5198
AFTERNOON
SESSION
THE
COURT: Is the state ready?
MR.
SMEAL: Yes, Your Honor.
THE
COURT: Is the defendant ready?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Bring the jury back, please.
[The
jury returned to the courtroom and proceedings resumed, as follows.]
THE
COURT: Call your next witness, please.
MR.
SMEAL: The state calls Dr. George
Herrin, Jr.
[The
witness was called to the courtroom and stepped to the witness stand.]
THE
COURT: If you'll administer the oath,
Mr. Smeal.
MR.
SMEAL: Raise your right hand. Do you solemnly swear the testimony you're
about to give in the matter now pending before the Court will be the truth, the
whole truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as
follows:
DIRECT EXAMINATION
BY
MR. SMEAL:
Q. Please state your full name and if you would
spell your last name for the court reporter.
A. My name is George Herrin, Jr. My last name is spelled H-e-r-r-i-n.
Q. And Dr. Herrin, what is your occupation?
A. I'm the DNA unit supervisor at the Georgia
Bureau of Investigation, Division of Forensic Sciences, more commonly referred
to as the crime laboratory.
Q. How long have you been so employed?
A. A little over five and a half years, almost
six years.
Q. All right.
And what are your duties as DNA supervisor of the crime lab?
A. Well, I institute the protocols and
procedures that we utilize in the laboratory.
I train the other scientists in the laboratory section for doing DNA
analysis procedures. I do research and
validation work on the procedures that we utilize in the laboratory. And I testify in court as necessary, and
occasionally I do some case work myself, although that is tapering off.
Q. Dr. Herrin, what is your educational
background?
A. I have a B.S. or bachelor of science in
biochemistry, received from Mississippi State University in 1980. I have a Ph.D. in biochemistry, received
from Rice University in 1985. My
specialty of research during my graduate degree program was molecular biology
or the study of DNA. And then I
completed approximately two and a half years of postdoctoral research, again in
the field of molecular biology at Texas A&M University.
Q. Okay.
What is your professional background, including any prior employment
you've had in this area?
A. Well, I have -- I worked for finishing my --
after finishing my postdoctoral research, I worked for two years at Cellmark
Diagnostics, which is a private corporation which does DNA testing for identity
purposes. And then following that, I
joined the Georgia Bureau of Investigation.
In addition to that actual hands-on experience, I'm an associate member
of the Southern Association of Forensic Scientists; I'm a fellow of the
American Academy of Forensic Scientists; I'm a member of TWGDAM or the
Technical Working Group on DNA Analysis Methods; I'm the chairman of the
Biology Proficiency Review Committee of the American Board of Criminalistics;
and I'm a fellow of the American Board of Criminalistics in the field of
molecular biology.
Q. Have you published anything in the area of
DNA?
A. Yes, I have.
Q. Approximately how many articles?
A. Approximately twelve to thirteen that deal
with DNA.
Q. Okay.
And could you describe what the subject areas of some of those articles
have been?
A. Well, the first few were actually dealing
with my graduate research, so they don't really have a whole lot to do with
what I'm doing now. But in the last six
years or eight years, seven to eight years, most of the articles that I've
published or have been co-authored, co-author on, have dealt with DNA typing
and how it's used in forensics or paternity.
Q. Dr. Herrin, generally speaking, what would be
the scientific areas that DNA is concerned with?
A. Well, it would be concerned with
forensics. In forensics, it would be
obviously concerned with molecular biology, which is the study of DNA, how does
the DNA work. This also involves
population genetics, or, in other words, how frequently do different genes or
different DNA patterns occur in the population.
Q. And do you say current in those areas?
A. Yes, I do, as much as possible.
Q. In recent years, I know this may be difficult
to answer, but how many articles have been published in the area of molecular
biology and population genetics dealing with forensic DNA?
A. Oh, dozens.
Probably close to a hundred.
Q. Okay.
Have you testified before in the courts of Georgia on DNA analysis?
A. Yes, I have.
Q. Have you been qualified as an expert in the
area of DNA analysis?
A. Yes, I have.
Q. Dr. Herrin, you mentioned TWGDAM before, the
Technical Working Group on DNA Analysis Methods. Are you a member of TWGDAM?
A. Yes, I am.
Q. Have you attended any of their conferences?
A. I attend every one of them since I've become
a member.
Q. And who are the other members of TWGDAM?
A. The other -- well, TWGDAM is a group
sponsored by the FBI laboratory up in Quantico, Virginia. And the other members of TWGDAM are the DNA
supervisors or coordinators from the various state and local agencies around
the country, including Canada, the Royal Canadian Mounted Police, and Toronto's
crime laboratory.
Q. Are you generally familiar with the
procedures and protocols used by other laboratories, both public and private
and the FBI, in the area of DNA analysis?
A. Yes, I am.
MR.
SMEAL: Your Honor, at this time, the
state would be offering Dr. Herrin as an expert in the area of DNA analysis.
THE
COURT: Do you wish to voir dire the
witness as to qualifications, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Any objection?
MR.
MOORE: No objection, Your Honor.
THE
COURT: The Court finds him
qualified. Go ahead, please.
BY
MR. SMEAL:
Q. Dr. Herrin, I understand you're recovering
from a cold today; is that correct?
A. Yes, sir, so I might cough a little bit.
Q. All right.
I've poured you a cup of water, which is there for you to utilize.
A. Thank you.
Q. Dr. Herrin, to begin with, would you explain
what, generally, what the relationship is between a local police department,
such as Gwinnett County's, and the crime lab?
A. Well, it's a working relationship, but there
is no actual linkage between the local police departments and the crime laboratory. The local police departments or even the
Georgia Bureau of -- the GBI's own agents submit evidence to the laboratory for
analysis. And then once that evidence
is submitted, they have no further control over what -- what results we obtain
from that evidence.
Q. How long has the GBI crime lab been doing DNA
analysis?
A. We began doing case work analysis in January
of 1991.
Q. And currently, how many scientists under your
supervision or in your unit are performing DNA analysis?
A. Nine, I believe, for case work analysis.
Q. And what are the basic methodologies of DNA
analysis that the crime lab's doing at this time?
A. Well, the primary method that we use is known
as RFLP or restriction fragment length polymorphism. And it's the type that has been most commonly referred to in the
popular press. And then the second type
of testing that we do is based on a technique known as polymerase chain
reaction or PCR. And basically, what
that is is it's a mechanism or method to multiply the amount of DNA that you've
got from a very small sample so that you can get a result from samples that
otherwise you would not get a result from.
Q. And Dr. Herrin, how many DNA analyses is the
crime lab currently doing? And you can
express that in terms of monthly, yearly, however you wish.
A. We accept approximately 250 to 275 cases per
year. And approximately 90 percent of
those utilize the RFLP technology.
Q. And does the crime lab have acceptance
criteria that it applies in accepting cases for DNA analysis?
A. Yes, we do.
Q. Okay.
And generally, what types of cases would you be accepting to do DNA
analysis in?
A. Well, until just this last month or so, the
case had to be a violent personal crime.
In other words, there had to be a homicide, a sexual assault, an
aggravated assault with serious bodily injury or something of that nature.
Q. And Keith Goff, who has previously testified
in this court, he works in your unit; is that correct?
A. That is correct.
Q. Dr. Herrin, you've referred to other
laboratories in the country.
Approximately how many public and private laboratories in the United
States are doing DNA analysis at the current time?
A. Approximately ninety, I believe.
Q. Okay.
And can you break that down, generally, between public and private?
A. Well, it's going to be about 75 percent
public, 75 to 80 percent public, and the rest private laboratories.
Q. Are there mandatory national standards for
DNA analysis, in particular, for RFLP analysis?
A. No, there are not mandatory standards. There are interim standards.
Q. Okay.
Could you explain what that means to the jury, please?
A. Well, in 1989, I believe it was, and then in
1991, I believe, TWGDAM published a series of guidelines for quality assurance
in DNA testing laboratories. And under
the crime bill that President Clinton signed last October, those guidelines
became interim national standards.
Q. And has the Georgia state crime lab, your
unit, developed procedures and protocols for RFLP analysis?
A. Yes, we have.
Q. And how was that done?
A. Well, it was done based on my knowledge of
molecular biology and the techniques utilized in molecular biology, my
knowledge of protocols and procedures utilized by other laboratories, and then
just the desire to make our laboratory results comparable with those obtained from
other laboratories.
Q. And with regard to some of the particular
steps of the RFLP analysis, are the protocols that you have relating to
extraction of DNA generally accepted in the scientific community and consistent
with the practices of other laboratories in the country?
A. Yes, they are.
Q. And are the protocols that you've adopted
relating to fragmentation or use of a restrictive enzyme also generally
accepted in the scientific community and consistent with other laboratories'
practices?
A. Absolutely.
Q. Does the crime lab have protocols relating to
partial digestion?
A. Yes, we do.
Q. And who developed that protocol?
A. I did.
Q. Are the protocols that you've developed
relating to electrophoresis consistent with other laboratories and generally
accepted in the scientific community?
A. Yes, they are.
Q. Are the practices and protocols relating to
Southern blotting procedures consistent with other laboratories and generally
accepted in the scientific community?
A. Yes, they are.
Q. Are the protocols and practices relating to
the creation of autoradiographs consistent with other laboratories and
generally accepted in the scientific community?
A. Yes.
They're the same methods used in other laboratories.
Q. And are the match criteria that you have
developed or that you utilize in the lab consistent with practices of other
laboratories in the country and generally accepted in the scientific community?
A. Yes.
Our match criteria is comparable with that used by other
laboratories. It's slightly smaller
than some. It's slightly larger than
others. It's right in the middle.
Q. Now, if we could digress for one second on
the issue of match criteria. Dr.
Herrin, if one takes a DNA fragment and creates an autoradiograph with respect
to that fragment and sizes it, and one does that over and over again, is one
going to get the same size as far as base pairs are concerned?
A. No.
You won't get exactly the same size, and this is due to many factors,
but primarily it's due to the variation in the computer sizing instrumentation
itself and the operator variation in placing the autorad or the x-ray film on
top of the light box that takes the -- that shines the light through the film,
and then just variations in the actual electrophoresis of the DNA fragments,
minute variations.
Q. Would that have anything to do with the gel
that's been prepared for the electrophoresis process?
A. Yes, sir, it could have to do with the
gel. If the concentration is slightly
-- if it's supposed to be exactly 1.00 percent and if it's, say, 1.01 percent,
then it's very difficult to measure that exactly. If the buffer concentrations have changed by 1 percent, then that
potentially could change the fragment sizes just a small amount, but it
wouldn't affect your overall conclusions that you reach in a case.
Q. With respect to match criteria, has the
laboratory under your control developed a percentage that it applies in
declaring a match?
A. Yes, we have.
Q. And what is that percentage?
A. For fragments, DNA fragments, that are less
than 10,000 base pairs in size, the match criteria is an absolute difference of
4 percent of the smaller of the two fragments that we're comparing. In other words, if we have a fragment of
1,000 base pairs, then 4 percent of 1,000 is forty. And the upper limit on any other fragment that would be called a
match to that fragment would be 1,040 base pairs. So in other words, if you were 1,041, then that fragment would
not be called a match to that 1,000 base pair fragment.
Q. And how did you arrive at that 4 percent figure?
A. By doing replicate testing on samples that we
knew came from the same person, whether they be blood samples or semen
samples. Just testing them over and
over and over again and seeing what the variation that we got with our normal
laboratory procedures was.
Q. Are you familiar with what the match criteria
of the FBI is?
A. Yes, I am.
Q. And what percentage do they utilize?
A. They utilize a plus or minus 2 and a half
percent, so their overall match window is essentially 5 percent.
Q. It might help if you -- could you illustrate
that on the board --
A. Sure.
Q. -- the difference between a 4 percent match
criteria utilized by the GBI and the plus or minus 2 and a half percent
utilized by the FBI?
A. Yes.
[Stepping to the diagram board]
Could I erase this? Would it be
okay?
Q. Sure.
A. Okay.
On the left-hand side of the board, on my left, I guess it's y'all's
left, too, I've illustrated our GBI match criteria for fragments which are less
than 10,000 base pairs in length. We
take our fragment size, our smaller fragment that we're comparing -- let me
draw the second fragment up here -- this on the lower here. And whatever that fragment size is we
multiply that times .04 and we go up 4 percent from that size.
And
then we say this is our range of acceptable values for any other fragment to be
considered a match to this fragment, this bottom fragment. If it's this fragment, it would indeed be a
match. It would be to the upper end of
that match window, but it would still be a match. If the fragment, the second fragment was up here, it would not be
a match. It might be declared visually
similar, but it would not be declared a match.
Okay.
Here
on the right-hand side of the board, I've illustrated the FBI's match
criteria. They have two bands that
they're comparing from, say, a known sample and an unknown sample. From the uppermost band, they drop down 2
and a half percentage or 2 and a half percent from the size of that upper band
or that larger band that they're comparing.
From the smaller band in the comparison, they go upwards 2 and a half
percent. If those, where I've drawn
these arrows here on the board, if those arrows overlap, then that's considered
to be a match within the FBI's match criteria.
So they have essentially an overall window of 5 percent. [Returning to the witness stand]
Q. Once a match has been declared in the
determination of the frequency calculations, is there also a match criteria
with respect to that step?
A. Well, there's a binning window, what we call
a binning window, which is associated with the frequency calculations, and it's
always slightly larger or larger than your match criteria window.
Q. And why is that?
A. Well, because when you're measuring -- if I
could just get down and use the board.
Q. Sure.
A. [Stepping to the board] When we're measuring, say, this band right
here, this bottom band on the left -- on my illustration of the GBI's match
criteria, we're only going to measure this size or calculate this fragment size
one time. And we know from experience
that if we ran this, say, fifty times that there would be some variation. And we don't really know when we calculate
this if it was at the top or the bottom of that variation that we would see.
So
in order to account for that -- let me use a red pen -- we make the frequency
bin plus or minus 5 percent so that now the window that we're looking at when
we're doing the frequency calculation for bands less than 10,000 base pairs in
length is a total of 10 percent. So in
other words, when we're searching through our database, we consider any band
that falls within this 10 percent window, even though it might in fact not be
considered a match, if we were declaring a match, to be the same as this band
that we're looking at in our case.
[Returning to the witness stand]
Q. And what effect does that have on the
calculation frequency?
A. Well, it actually makes the frequency more
conservative or, and I guess you could say, in some ways, biases the
calculation toward one side.
Q. And which side is that?
A. It would be toward the side of favoring the
defendant, I would suppose.
Q. Now, just to make it clear, when you're
talking about this plus or minus 5 percent, you're talking about comparing the
autorads to your population databases, which have been samples submitted from
other sources?
A. That's correct.
Q. And that's to determine the frequency of
certain DNA profiles in the population?
A. Yes, sir.
We want to know how frequently a particular DNA pattern or profile
occurs in the general population.
Q. Does the crime lab utilize a computer
bio-imaging process in your RFLP procedures?
A. Yes, we do.
Q. Okay.
And would you explain briefly how that works?
A. Well, that works through -- what we do is we
take the x-ray films or the autorads, which I assume that y'all have already
seen, I don't know. But anyway, you
take the x-ray films and you place them on top of a light box like your doctor
would use if you were having an x-ray taken at the doctor's office.
Q. Okay.
Directing your attention over to this item, Dr. Herrin, would it be
similar to this?
A. Very similar to that. Okay.
And the light box is on and above that light box, we have a video
camera, a very sophisticated video camera, which takes a picture of the autorad
and digitizes that onto a computer. And
then the computer actually goes through and marks what it believes and what the
computer believes to be the center of each band on the autorad.
Q. And at that point, does the scientist or
operator who is utilizing the computer have the ability to edit the scanning
process?
A. To edit the -- what the computer has declared
to be the center of the band, yes, sir.
Q. Okay.
And why is that necessary?
A. Well, it's because there's not a single
computer program written that I know of anywhere that's as good as the human
analyst.
Q. Did you write the -- with respect to the
population frequency databases, do you utilize computer software?
A. Yes, we do.
Q. And who wrote those?
A. I did.
Q. And how did you write those, generally? I mean, what did you base that program on?
A. Well, I based that program on the fact that,
well, I knew what frequency window I wanted to have, and then it was just a
matter of going in and writing out a portion of a program to search through the
database and find all matches for samples that would have that same pattern
within the windows that we set up.
Q. How were the population databases developed
by the crime lab?
A. We received -- excuse me -- we received
samples from various health centers around the metropolitan Atlanta area, primarily,
although we did receive some from Rome and Albany, and we also had some samples
submitted from natural deaths that were autopsied by the medical examiners at
the crime laboratory.
Q. And why is it that the crime lab has a
distinctive Caucasian and black database?
A. Well, it's -- well, it's for two
reasons. The primary reason that still
is in existence is for historical purposes.
When we first started doing DNA typing, oh, almost eight, nine years
ago, we didn't know that there would -- whether or not there would be
significant differences between African American or black individuals and
between Caucasian individuals. So
that's one reason, for historical purposes.
Then
the second reason is it's because there are some small differences between the
racial groups that you can detect.
They're not significant to the standpoint that if you do a calculation
using a Caucasian database from a pattern that belongs to a Caucasian and you
arrive at a number, and I'm just going to pick a number out of the air, one in
a billion, say, and then you take that same pattern and you calculate the
frequency in an African American or black database that you're going to get one
in a hundred. You might, in fact, get
one in ten billion or one in five billion, but you're not going to go from one
in a billion to one in a hundred.
Q. How important is it that your population
databases be geographically random?
A. It's not really important at all because
people don't move places or don't live places based on their genetic characteristics
at these markers that we're testing.
And as a matter of fact, the U.S. population is so mobile that there's
no way to say that, okay, everybody in DeKalb County, for instance, is going to
have this specific genetic profile. It
just doesn't occur. And if you compare
our database with databases collected all over the country, and, in fact, all
over the world, the numbers are exceedingly similar. Much more similar than you might even think would happen.
Q. Based upon your education, training and
experience, do the population databases currently utilized and utilized in this
case with respect to DNA analysis, have sufficient numbers of samples in them?
A. Yes, they do.
Q. Have you done research or have you found out
that increasing the size of the database appreciably results in any different
conclusions as far as your DNA analyses are concerned?
A. No, it doesn't. Recently, well, around the beginning of this year, we added or
essentially doubled the size of our population databases, and it didn't affect
the overall conclusions that we drew in the case.
Q. Has the crime lab adopted any quality control
standards in the area of DNA analysis?
A. Yes, we have.
Q. Could you describe those for the jury,
please?
A. Well, we have several. During the analysis process itself, the
analyst performs several quality control checks. The first is to actually run the DNA that they've extracted from
the samples out on a mini-gel or small gel to check the quality and quantity of
DNA that they've obtained from the sample to determine if they've gotten enough
DNA to continue the testing.
In
addition to that, while they're processing the unknown evidence from the case,
they also are processing what we call a QC or quality control sample, which is
a random mixture of one of a blood sample and a semen sample that I know the
answer to that particular sample, and this is a one-time use sample. And they process this sample along with
their evidence, and that answer is checked at the end of the case.
In
addition to that, we have a human DNA which we purchase commercially which we
run on every case, and we compare that -- the fragment sizes and pattern that
we get from that DNA sample to establish standards, to see if they meet those
standards.
Q. Has the crime lab adopted true blind
proficiency testing?
A. Not in the truest sense of the word, no.
Q. Okay.
A. Not to my knowledge anyway.
Q. All right.
And why not?
A. Well, it's just been a very difficult
logistic nightmare, actually. I've
tried several times to implement it, and it turns out that because we work so
closely in conjunction with police agencies, as far as finding out information
about the case to help us determine what the best possible method of testing a
particular set of samples is, it's very difficult to mimic a case in all of its
particulars that we would have in the laboratory.
Q. Okay.
And can you be a little bit more specific on that? What would be some of the areas of
difficulty to develop true blind proficiency?
A. Well, when we get a case in the laboratory
for DNA testing, we require known liquid blood samples from all of the
individuals who potentially could be submitted or associated with that
evidence. And it's very difficult to
find people in the laboratory -- and you need a known sample of blood, for
instance. It's very difficult within
the laboratory to get people to get stuck by a needle to donate blood for that
test, and it's essentially a one-time test.
And I hate needles and I don't like to get stuck very much.
That's
one difficulty. And then the second
difficulty is just finding an agent or a police officer who has the time to
devote to the kind of intensive effort that would be involved on that.
Q. Would it involve the actual reporting of a
crime as well as the submission of samples?
A. In some situations, it would. In many police agencies, their submission
records to the crime laboratory for analysis are checked by the news
media. And so that would appear to be a
real case which, in fact, it's not a real case, and so it could cause some
confusion within a community.
Q. Was -- directing your attention to this case,
was PCR testing done in this case?
A. No.
PCR testing was not done in this case.
Q. I want to direct your attention to State's
Exhibit 129. Have you seen that item
before?
A. I saw it one time before, yes, sir.
Q. Okay.
And was that at the crime lab?
A. Yes, sir.
Q. And was that in the presence of Keith Goff
and myself?
A. Yes, sir, I believe it was.
Q. And was there a discussion and consideration
at that time as to the performance of a PCR test?
A. Yes, there was.
Q. Okay.
And did you examine that raincoat for that purpose?
A. I looked at the raincoat, and I actually
found it very difficult to identify what I would consider to be testable blood
stains on the raincoat. After they were
pointed out to me, I did -- and I'm not a serologist, so that's not my job to
identify the blood stains, I still was not sure that testing would be
successful.
Q. Okay.
Assuming that PCR testing was successful on the blood stains on that
raincoat, what sorts of results or what sorts of results could one expect at
best?
A. Well, the best that you would expect, if we
ran every test that we currently have on line, and at the time that this case
was done, we didn't have all of those tests on line, but if we ran every test
that we currently have on line, the best that you could expect is that you
would have a number, say, that one out of several tens of thousands of people
could have donated that particular blood stain.
So,
in other words, I think the number in this particular case for the RFLP is one
in ten billion, so that would mean that you would be comparing one in, say,
fifty thousand, I'm just picking that number out of the hat. We just finished a case where we did all
seven of the markers that we're doing currently and that overall calculation
was one in twenty thousand. So one in
fifty thousand is better even than that case that we just finished. And so you'd be looking at one in fifty
thousand versus one in ten billion.
Q. Dr. Herrin, assuming that you had a one in
fifty thousand calculation result on PCR testing and assuming, further, that
the population of the county is 300,000, then what sorts of numbers would we be
talking about in terms of potential sources?
A. Well, theoretically, there could be six more
people within that county alone that would have that same DNA profile for those
markers.
Q. Okay.
And how does that compare to a probability calculation of one in ten
billion?
A. Well, one in ten billion essentially excludes
every other individual on the face of the planet with the exception of
identical twins.
Q. Based upon the existence at that time of RFLP
testing, the results in that case, and your examination of that raincoat, did
you recommend that PCR testing be done?
A. No.
It's not our standard procedure to do PCR testing on a case in which
we've already obtained an answer using RFLP testing. It's just not cost effective or time effective for us to be doing
case work when we've already got a very satisfactory and very definitive answer
on a piece of evidence in the case.
Q. Dr. Herrin, what are the possible outcomes of
an RFLP DNA analysis?
A. Well, there are three possible outcomes. You can have a match between two
samples. In other words, for instance,
in this case, that would be the match between the blood stain on the car seat
and Emogene Thompson. You can have an
exclusion between two samples, and that would be the blood stain on the car
seat and Michael Chapel. Or you can
have an inconclusive answer where you can't determine where the stain, the
unknown sample, came from.
Q. And has the crime lab reported out exclusions
in the past?
A. Yes, sir, we do.
Q. And do you keep track of the approximate
percentage of matches, exclusions, and inconclusive results that the crime lab
has reached?
A. Yes, I do.
Q. And do you do that as part of your function
as DNA supervisor?
A. Yes, sir.
That's part of my administrative function.
Q. And approximately what percentage of your
overall cases do you declare a match?
A. Approximately 50 to 55 percent.
Q. And exclusions?
A. Approximately 20 to 30 percent.
Q. And inconclusive?
A. Approximately 15 to 20 percent.
Q. Does it make any difference to your unit or
to the crime lab, in any sense, whether that be budgetary or any other sense,
as to whether the crime lab reports out an exclusion or an inconclusive result
or a match?
A. Not really, although, personally, I would
rather report out an exclusion because then I don't have to go to court, so --
Q. Are you familiar with the NRC?
A. Yes, I am.
Q. What is the NRC?
A. The NRC stands for National Research
Council. And basically, what that is is
a subcommittee formed by the National Academy of Sciences to study a particular
area or issue in science.
Q. I'm handing you what's been marked as
Defendant's Exhibit D-96. Are you
familiar with that book?
A. Yes, sir.
I have read this book.
Q. And what is that book?
A. This is the NRC's report, DNA Technology in
Forensic Science.
Q. Okay.
And when was that book published; do you recall?
A. In April of 1993, I believe. Or 1992.
Excuse me.
Q. And what was the purpose of the NRC in
writing that book?
A. The purpose was to try or answer some of the
-- and resolve some of the controversy in the scientific community, the
academic scientific community, regarding the use of DNA in forensic science.
Q. And did the NRC in that book make various
suggestions as far as DNA analyses are concerned?
A. Yes, they did.
Q. And are all of those generally accepted in
the scientific community?
A. All of those suggestions?
Q. Yes.
A. No, definitely not.
Q. Has the NRC then reconvened?
A. Yes, they have.
Q. And when did that happen?
A. That happened sometime last year, and to the
best of my understanding, they are in the process of writing a second report.
Q. Okay.
And is that, as far as you know, ongoing as we speak?
A. Yes, sir, as far as I know.
Q. And why is the NRC reconvening?
A. Because there were still a large amount of
controversy, actually more controversy than before, regarding the methodologies
and the suggestions that the NRC put forward in this initial report. And there was several quite distinguished
scientists who felt that the NRC was incorrect in their original suggestions.
Q. Does the GBI protocol recall -- require a
review by a second scientist of the scientist who performed the analysis
originally?
A. Yes, it does.
Q. Was that followed in this case?
A. Yes, it was.
Q. And who was that second scientist who
reviewed Mr. Goff's work?
A. I did.
Q. Did you do that after he completed his work?
A. Yes, sir.
After he completed all of his analysis, the calculation of the frequency
estimate, everything, then his notes and data were handed to me, and I
independently interpreted his data to see if I arrived at the same conclusion.
Q. And have you reviewed this case more recently
in preparation for both this trial and also pretrial hearings?
A. Yes.
Q. With respect to the car seat which was tested
in this case, would the performance of any presumptive blood testing, including
Luminol, have affected the reliability of results in this case?
A. Absolutely not.
Q. And upon what do you base that opinion?
A. I base that opinion upon an article which was
published in the Journal of Forensic Sciences by the -- in collaboration -- by
the FBI laboratory in collaboration with some other scientists in which they
actually sprayed blood stains, known blood stains, with presumptive test
reagents such as Luminol, and discovered that they did not, in the case of
Luminol, it did not affect the results that you obtained from that sample.
Q. Are you aware of the -- have you examined the
autorads that were created in this case?
A. Yes.
Q. And was there the occurrence of partial
digestion in this case?
A. Yes, there was.
Q. As to some of the probes?
A. Some of the probes demonstrate partial
digestion, yes.
Q. And have you examined those autorads?
A. Yes, I have in the past.
Q. And do you concur with the opinion of Mr.
Goff that the extra banding is due to partial digestion?
A. Yes, I do.
Q. Was there incomplete stripping of probes also
present in this case?
A. On one probe. On the autorad from one probe, I believe there was, yes, sir.
Q. And you reviewed that autorad?
A. Yes.
Q. And you concur with Mr. Goff's conclusion
that that did involve incomplete stripping of a probe?
A. Yes.
Q. Are you aware of the fact that there was a
probe that was mislabeled at one point in this case?
A. Yes, I am.
Q. And was the mislabeling of that probe, did
that affect the overall reliability of the test results in this case?
A. No, it did not, because we caught -- due to
our quality assurance checks, we caught the mislabeling and went back and
corrected the mistake or the error.
Q. Was there a time, I believe it was sometime
last year, when the crime lab, the state, and the defense entered into a consent
order regarding the disclosure of certain information by the crime lab?
A. Yes, we did.
Q. And was part of that consent order the
retention of a bio-image on the sixth probe?
A. Yes, it was.
Q. And was that sixth probe LH-1?
A. Yes, it was.
Q. And was that bio-image, in fact, retained by
the crime lab?
A. Unfortunately, no, and that was -- nobody
feels worse about that than I do.
Q. And can you explain how that happened?
A. Well, the imaging system has a large amount
of data on it, and at some point the image was accidentally deleted, and I
don't know how or when. I do know that
in May or June, we were installing a second system and hooking them up as a
network, and it could have gotten accidentally deleted at that time, but I
don't know for sure.
Q. Did the crime lab agree to recreate the
bio-image on the sixth probe with the use of the original autorad?
A. Yes, we did.
Q. And just to digress for one second, did the
original autorad still exist?
A. Absolutely.
We don't -- do not destroy the original autorads from case work.
Q. And would that original autorad have
contained the various whatever banding was detected from the DNA fragments?
A. Yes, it would.
Q. And is there any way for the scientist or
operator to go back and edit or delete the banding on the original autorad?
A. No.
We don't -- the scientists themselves don't have any way whatsoever to
control what bands we will see on an autorad.
Once that DNA is on that -- in that gel and on that nylon membrane, we
have absolutely no control over what we see.
Q. And was there a meeting arranged at the crime
lab with yourself, Mr. Goff, Mr. Moore, Dr. Shapiro, and myself present at
which time the bio-image of the sixth probe was recreated?
A. Yes, there was.
Q. And was a copy of that provided to the defense?
A. Yes, it was.
Q. When the first five probes were done in this
case, was the crime lab routinely creating the bio-images on paper?
A. You mean, doing a video printout?
Q. Yes.
A. No, sir.
We did not have that capability when this case was originally done.
Q. Dr. Herrin, did Mr. Goff perform the
scientific procedures in this case in an acceptable manner?
A. Yes, he did.
Q. And you are also personally familiar with the
banding and the autorads in this case?
A. Yes.
I have examined them.
Q. Based upon your education, training, and
experience, and knowledge of the specific results in this case, do you have an
opinion as to whether Emogene Thompson was the source of the blood stain found
on the car seat?
A. Yes, I do.
Q. And do you hold that opinion to a reasonable
degree of scientific certainty?
A. Yes, I do.
Q. And what is that opinion?
A. With a reasonable scientific certainty, it
can be concluded that the DNA which was originated from the blood stain on the
car seat and -- originated from Emogene Thompson or her identical twin.
Q. And what do you base that opinion on, if you
could express that in terms of the probability calculations that were arrived
at in this case?
A. Well, not only on the probability
calculations which arrived at a final figure which we reported of not more than
one in ten billion black or Caucasian individuals would exhibit that same
pattern, but also on my experience of looking at thousands, if not tens of
thousands, of DNA patterns and never seeing or hearing of one in my training or
attendance at symposia, of patterns between unrelated individuals that match at
five or more probes.
MR.
SMEAL: I have no further questions at
this time.
THE
COURT: Mr. Moore?
CROSS EXAMINATION
BY
MR. MOORE:
Q. Dr. Herrin, I believe you know me. My name is Johnny Moore. I have a few questions I'd like to ask
you. Do you need more water?
A. No, sir.
It's fine. It's not really
helping, so --
Q. Okay.
Going back to something that Mr. Smeal went into about the true blind
proficiency testing, you testified it would be very difficult to do that?
A. It is very difficult, and we have tried to
institute it, but just have not been successful in doing so to this point in
time.
Q. Couldn't you obtain blood for that the same
way you did for your database, from the clinics, to have known samples that --
A. That's a potential, but the blood samples
have to be unlabeled, essentially, and when you get a blood sample from a
clinic, usually it has some information already written on it, and we need to
have these samples be in blood tubes that are completely unlabeled so that we
can label them like they would be if they came in on a case, because it has to
really look to the analyst when they get this evidence that it has come in on
an actual case.
Q. You don't think the clinics would cooperate
with you -- cooperate in letting you go out there and take an extra sample and
label it?
A. They possibly could, but I'm not the only one
that has to be involved in instituting a blind proficiency test.
Q. Now, you talk about a police officer had to
be involved. Are you telling us that
the police officer sits down and tells the analyst about their case and what's
taken place in it and their theories about who may be guilty and everything?
A. Well, they certainly provide us a lot of
background information in the case.
Q. Would you answer my question, and then you
can explain it. Yes or no?
A. Well, I thought I was answering your
question, but okay, yes, sir. We do sit
down with the police officer and discuss the case.
Q. You can explain your answer.
A. We certainly try to get a lot of background
information in the case because that can help the analyst determine what's the
most appropriate method of testing or avenue of testing to take on this
particular set of samples.
For
instance, if the officer -- a lot of times an officer will bring in a
blood-stained area collected under a homicide victim's body, and they'll ask us
to test and say, well, did this blood actually come from this victim. Well, you know, obviously, if this person
was shot or stabbed, then that blood is most probably theirs, and there's
really not much point in us testing that.
So
sometimes we can eliminate certain samples and certain testing that we would
have to do otherwise, and other times we suggest to them particular avenues of
testing or other samples or suspects or people that we might need to test.
Q. Wouldn't it be a better procedure to have
some person screen that, that takes the blood in, talks to the police officer,
and they don't have anything to do with doing the actual test, and then they
turn it over to somebody else for the testing?
A. No, not really. It would be just adding another person into the loop, which would
slow the whole process down even more than it is now.
Q. But it would mean the scientist, then, that
was doing the testing didn't know anything about the case, what the outcome
should be?
A. Well, the scientist doesn't know what the
outcome is going to be, and the scientists don't really care what the outcome
is, and that's what you've got to understand is that we don't care what the
outcome of any case is. To us, every
case is just a case. And when we're
doing hundreds of cases a year there is really no case that's more important to
us than any other case.
Q. But the scientist has to be involved in the
interpretation of that data, doesn't he?
A. Certainly.
Q. And the scientist when he knows all this
stuff that the police officers told him that goes into it, he can't put it out
of his mind when he's going in and making his determination, can he?
A. I suppose not. I don't really consider it when I'm interpreting a case that I
analyzed.
Q. And if you had true blind proficiency
testing, that would determine whether or not it did affect somebody when the
police officer told them that kind of information, wouldn't it?
A. No, it would not determine that. It would -- a true blind proficiency test is
just a test on how well the overall procedures of the laboratory work.
Q. Are you as certain of your databases to a
reasonable scientific certainty as you are of your testimony here today, that
they are accurate and correct?
A. I'm not really sure if I understand what
you're asking there.
Q. I'm asking you -- you did your databases?
A. Yes, sir.
Q. Are you as sure of your work there in putting
those together, to a reasonable scientific certainty, as you are of your
testimony here today in court about these tests?
A. Well, I guess if you mean am I certain that
the data that we've collected into the database is accurate and reliable, then
the answer is yes.
Q. Now, it was the policy of the lab at the time
this case came about to re-use the space in the computer, so to speak, and
erase prior bio-images; is that correct?
A. That's still our policy.
Q. Okay.
And there's no preserving those for use at a later time by experts for
the defense or use in court, the original bio-images?
A. On the computer itself, no. We don't have -- excuse me -- we don't have
the resources to save the hundreds of autorad images that we create each year.
Q. And that could be done by photographing them,
if you chose to do so, photographing the screen?
A. Well, currently what we're doing, since we've
gotten our new system installed, is we're actually doing a video printout of
the screen, which gives us an actual picture of what was on the screen without
taking a photograph. So we do have that
capability now, and we are doing that now.
Q. But that's a picture of what's on the screen
if it's still in the computer?
A. That's correct. But we do that when we finish -- when we finish editing or doing
the computer analysis of a particular autorad, then we take a video printer --
printout of that image and tape it to our hard copy printout.
Q. At the time this case was done, you could
have preserved those bio-images, the originals, by photographing them, is my
question?
A. I suppose we could have, but that's not part
of our standard operating procedure.
Q. And if they had been preserved, then they'd
have been available for the jury or any expert to look at, the originals?
A. Yes.
Q. And those originals would show whether or not
the operator manipulated where the center of the band was, wouldn't it?
A. Yes, they would.
Q. And there were no notes or records kept on
these five autorads as to whether or not the operator manipulated or changed
where the settings were, are there?
A. No, sir.
No notes or documentation is kept on that, although I do believe that
when you were at the laboratory to watch us do the sixth -- redo the sixth
probe, we did discover or I had discovered that the third probe was still on
the computer system. I don't know how
that happened, but it was still on the computer system.
Q. And you had told us previously it had already
been erased, hadn't you?
A. Well, I thought it had been, and then that's
my mistake. But it was still on the
computer system, and we showed you that image, and I don't believe there had
been any manual replacement of the bands on that image.
Q. Dr. Herrin, do you remember looking at that
image when we were there?
A. Yes, I do.
Q. The way the screen is set up it shows like a
minus sign in the center of the band if it hadn't been manipulated, doesn't it?
A. That's correct.
Q. And it shows a plus if it has been changed?
A. That's correct.
Q. And on TBQ-7 it showed a plus in a band on
the far right-hand side of the screen?
A. I don't remember. I said I don't think it did, okay?
Q. Your answer is you don't remember?
A. Well, I don't think it did. If it did, then I'm mistaken.
Q. Now, on your wall there, leading back to
where your computers are and everything, there's pictures there that you have
taken of bio-images on the screen, aren't there?
A. Yes, sir.
That's an informational board that the laboratory uses for public tours.
Q. And so the people there in the laboratory
have the ability to have somebody come down there with a camera and preserve
those images?
A. Yes, we do.
Q. And you chose not to do it in this case?
A. That is not part of our standard operating
procedure to take photographs of the computer screens.
Q. On the probe LH-1 that was done in this case,
do you know how many persons in the databases are similar enough to this case
to be considered?
A. I'll have to look at the notes to answer
that.
Q. Go ahead and look at your notes. I'm not trying to trick you.
A. Okay.
The black LH-1 database consisted of 166 individuals at the time that we
did this analysis --
Q. Now, I'm not asking you how many individuals
--
A. I know.
Just a second.
Q. Yeah.
A. And, actually, does anybody have a
calculator, because I can't do this in my head, and somebody took my calculator
at work.
Q. How far does it have to go?
A. Just a few decimal places. Here's one here, sir. Somebody took my calculator out of my
office, and I can't find it. [Pause] Okay.
Really, we had not seen -- and we're talking about Emogene Thompson's or
the blood stain on the car seat? Is
that what we're discussing?
Q. In this case.
A. That we had not seen her pattern or that
pattern in the black database before.
Okay. And in the Caucasian
database we had seen it one time before.
Q. Okay.
Now, in this case there was something used that was called a partial
digestion experiment. Are you familiar
with what I'm talking about?
A. Yes, sir, I am.
Q. Have you published anything regarding that?
A. You mean in the journals?
Q. Yes, sir.
A. No, sir.
Q. And the purpose of publishing things is
generally so that other scientists can see your work, they can test it and see
to it that it works and is done correctly.
Is that part of the reason for publishing?
A. That's part of the reason for publishing, but
the other reason for publishing is to allow the scientific community to know
about new techniques or new methods.
Doing a partial digestion experiment is not -- certainly not a new
method. If you go to any basic
molecular biology handbook on laboratory methods, you'll find partial digestion
controlled experiments discussed there.
As a matter of fact, partial -- controlled partial digestions are a key
tool in the way that molecular biologists do some of their experiments when
they're trying to isolate a particular gene or identify a particular sequence.
Q. But you're not trying to isolate a particular
gene here, are you?
A. No, not in this situation.
Q. Now, for forensic purposes like it's being
used here, are partial digestion experiments generally accepted in the
scientific community?
A. Yes, they are.
Q. Do you know which other labs use them?
A. Not right off the top of my head. I know that the Kentucky state police
laboratory uses them, but other than that, I don't know of any other laboratories
right off the top of my head.
Q. And did you develop that procedure here in
Georgia?
A. The one that the Kentucky lab uses?
Q. No, the one here in Georgia.
A. The one that we use here in Georgia, yes, I
developed that procedure.
Q. But that's not been published in any
articles, journals, scientific journals or anything like that?
A. No, sir.
Q. Has the National Research Council made any
recommendations concerning partial digestion experiments?
A. Not to my knowledge.
Q. Now, the National Research Council, that's
made up of scientists from all over the country, isn't it?
A. Yes, sir.
It actually -- this committee included scientists, I believe it included
a lawyer, and a bio-ethicist, I believe, and a judge, if I'm not mistaken. I might be mistaken about that. It included other people besides scientists,
though.
Q. Do know what match criteria -- you testified
about the FBI -- is used by Lifecodes and Cellmark, for example?
A. Well, I can give you what I -- the last match
criteria that Lifecodes was using that I know about.
Q. And how long ago was that?
A. Well, the last time I talked to anyone about
their match criteria was actually four or five years ago, but --
Q. Do you have any current knowledge of what
they're using?
A. Not currently. I would assume they haven't changed it, though, is plus or minus
1.8 percent. And Cellmark's is a
floating match criteria depending upon where you're at in the gel.
Q. Okay.
Now, going back to this bio-image which got erased, LH-1, that was under
court order.
A. Yes, sir.
Under consent order, yes, sir.
Q. It was a court order nevertheless?
A. Yes.
Q. Now, were any backups made to that, any
backup copies or anything?
A. No, sir, they were not.
Q. And why not?
A. We just did not make backup copies because
there was no intention on our part to erase the original image.
Q. If you were being the careful scientist,
though, the way to ensure that it wouldn't be lost would be to make a backup
copy, wouldn't it?
A. That would be advisable. I would agree with that.
Q. Do you recall back in May of 1993 having a
conversation with --
MR.
MOORE: Let me get this marked.
[Defendant's
exhibit was marked for identification by the court reporter.]
BY
MR. MOORE:
Q. Do you recall a conversation in April of -- I
mean, excuse me, May 21, 1993, with Jennifer Wilson regarding the use of
whether or not Luminol would have any effect on RFLP?
A. Mr. Moore, I have to be honest with you. I can't remember what I did last week.
Q. Let me show you what's been marked
Defendant's Exhibit Number 97 and see if that refreshes your memory.
A. Okay.
Q. Do you recall that now?
A. Well, not really, but I'll trust the
documentation for it.
Q. And you testified earlier today that
absolutely not, Luminol would not have any effect. Did you have a conversation where you said that you didn't -- it
shouldn't? I'm not sure of the exact
words.
A. Right.
It says he said it shouldn't, and that's correct. That's apparently what I said, and I don't
believe that the paper that I referred to was published at that -- well,
actually, it was, but I just did not remember it. It was published in 1991.
But the bottom line is that I cannot, just from someone asking me will a
particular sample work or not work, I cannot give them an absolute answer. If you just come up to me and say, well,
will this have an effect on the testing, I can't give you an answer until we
try the test, and that's the bottom line.
You try the test and you see if it works. If it works, then you know -- and everything, all of your quality
controls work in the test, then you know the test worked properly. If it didn't work, then you won't get an
answer.
Q. Could the Luminol be responsible for the
partial digestion problems here?
A. It possibly could, but I wouldn't -- I
wouldn't say that it is the absolute direct cause of it.
Q. But you just don't know?
A. I just do not know.
Q. Okay.
Now, your tests that you run and that you come here to court and testify
about, they don't tell the jury anything about how or when those stains got
there, do they?
A. No, sir, absolutely -- well, sometimes we
could deduce the order in which some stains appeared on a crime scene, but
that's very, very rare.
Q. In this case there's nothing that would
indicate when or how any of these blood stains got on the raincoat or the car
seat?
A. That's correct.
Q. And if State's Exhibit 129, the raincoat, had
been tested -- it's down here.
A. Okay.
That's okay.
Q. If it had been tested, you could've told the
jury, you could've excluded whether or not Ms. Thompson's blood was included in
that, couldn't you?
A. Assuming we got a result, okay, and that's a
big assumption based on the size of those stains. They were -- they were very small stains, and, you know, we might
have gotten a result, and we might not have.
Based on experience, I would say probably not, but I'm not going to
absolutely rule it out, like I just explained.
Q. Okay.
But nobody tried?
A. But nobody tried.
Q. And had it been requested, you would've tried
it?
A. If it had been requested, and the kits had
been purchased, we would have tried.
But to get back to your question, there's the possibility that we would
not be able to get an answer in which the results would've been inconclusive or
the results could have been consistent with Ms. Thompson or they could have
been consistent with Mr. Chapel or they could have been consistent with
somebody for whom we did not have a known sample. We don't know.
Q. And we'll never know the answer to that, will
we?
A. No, we won't.
Q. Now, you review Mr. Goff's work after he finishes;
is that correct?
A. In this particular case, I did, yes.
Q. You don't follow him around and watch him
while he's doing the various technical aspects and make sure he's doing it
right?
A. No.
No, sir, I do not follow him around.
Q. Now, this frequency of calculation you're
doing, that's a calculation, statistical calculation; is that correct?
A. I would not say it's a statistical
calculation. There's really no
statistics involved in it. It's really
more just a can you count, and then can you multiply.
Q. You're not computing the statistical
probability of a certain thing happening when you do that?
A. We're calculating the frequency of occurrence
of a particular DNA pattern in the overall population for a population group,
racial group. A statistic is something
completely different. A statistic would
be like a standard deviation or a test -- a statistical test is like the
chi-square test in which you're collecting a set of data to try to support or
contradict a hypothesis that you've formed.
For instance, if I form the hypothesis that
50 percent of this jury panel was male or let's say 80 percent of this jury
panel was male, and then I went down and I collected the data, I could use the
chi-square statistical test and prove that our hypothesis is not true. Now, that's a statistical test. This is not -- what we're calculating is not
a statistical test.
Q. But it's based on a random sample, a database
that you have collected?
A. It's based on representative -- what we
consider to be a representative sample of people living in Georgia at the time
the samples was collected.
Q. And that representative sample consists of a
group of people who volunteered to have their blood taken at clinics?
A. Yes, sir.
Q. And you don't have any idea what portion
agreed, what portion didn't like needles, like yourself, and said, 'I don't
want to volunteer' or 'I just don't want my blood in it, involved'?
A. That's correct. I do not have any control over the samples that were included in
the database.
MR.
MOORE: Nothing further.
THE
COURT: Redirect?
MR.
SMEAL: Just a couple of questions.
REDIRECT EXAMINATION
BY
MR. SMEAL:
Q. If photographs could be taken of the computer
screens of the images, how accurate do you believe those photographs would be
in terms of the ability to distinguish banding, et cetera?
A. Well, they would probably be relatively
accurate. The primary reason we don't
do that, besides the fact that the original autorad is always available for us
to redo if we need to, is cost. A
laboratory does not have an unlimited budget, and each one of those
photographs, like I assume you've seen today, is fairly expensive to produce,
and the laboratory would quickly run out of money, and then there wouldn't be
anything -- way to do any more cases for the rest of that year.
Q. I believe you testified that the photographs
that do exist within the crime lab are there on a bulletin board for public
tours?
A. That's correct.
Q. Are those photographs that are produced en
masse?
A. No.
That was produced one time. We
had a special day when we set up, you know, situations for the photography
department to come in and take photographs of the various things that we do in
the laboratory section, and then those were mounted on a board. We did not produce multiple copies of those
photographs.
Q. Dr. Herrin, would one genetic profile, DNA
profile, be affected at all by whether one voluntarily gave a blood sample or
involuntarily had a blood sample taken?
A. No, not at all.
Q. So to that extent does your database -- do
the autorads that you created in setting up your database, does it make any
difference how the blood samples were submitted to the crime lab?
A. No, not any at all. I mean those samples are just as good as any other samples that
we could have collected.
Q. Dr. Herrin, if the DNA RFLP procedures are
not followed correctly for whatever reason, what is the likely result?
A. Well, there's two. The most likely result is that you won't get an answer at
all. I mean you just will not get a
pattern to interpret. But if you do get
a pattern to interpret, and the protocol wasn't followed or something went
wrong during the protocol is that the results will be uninterpretable or
inconclusive.
Q. How likely is it that you would get a false
match or a false positive?
A. Well, it's essentially the same as the
probability of getting two things matching, so, you know, you can sort of work
that out for yourself. If it's one in
ten billion -- if the frequency of two patterns in the population is one in ten
billion, then the frequency of seeing an unrelated individual producing that
same pattern would be one in ten billion, and that would be a false match.
Q. Based upon all of your education, training
and experience and your knowledge of the procedures that were followed in this
case, do you have an opinion as to whether the results were reliable in this
case?
A. Yes, sir.
I think the results in this case are definitely reliable.
MR.
SMEAL: I have no further questions.
THE
COURT: Recross?
MR.
MOORE: Nothing further, Your Honor.
THE
COURT: Is this witness to be on call?
MR.
SMEAL: Yes, sir.
THE
COURT: You'll be subject to being
recalled later. You can come down. Thank you.
THE
WITNESS: Thank you, sir.
[The
witness stepped down.]
THE
COURT: Call your next witness, please.
MR.
DAVIS: Your Honor, the state calls
Helen Barrett.
[The
witness was called.]
MR.
DAVIS: Ms. Barrett, would you please
take the witness stand.
[The
witness stepped to the stand.]
MR.
DAVIS: Please raise your right
hand. Do you swear the evidence you
shall give the Court in this matter now pending shall be the truth, the whole
truth, and nothing but the truth, so help you God?
THE
WITNESS: I do.
Whereupon,
having
been called as a witness and duly sworn, was examined and testified, as follows:
DIRECT EXAMINATION
BY
MR. DAVIS:
Q. Please state your name for the record.
A. Helen Barrett, B-a-r-r-e-t-t.
Q. Thank you.
Ms. Barrett, were you the sister of Emogene Thompson?
A. Yes, I was.
Q. Ms. Barrett, did your sister, Emogene
Thompson, have an identical twin?
A. No, she did not.
MR.
DAVIS: No further questions.
THE
COURT: Cross?
CROSS EXAMINATION
BY
MS. ROGAN:
Q. Hi, Ms. Barrett.
A. Hi.
Q. Was your sister a lifelong resident of
Gwinnett County?
A. Yes.
Q. And was she born in Gwinnett?
A. Yes, she was.
Q. Was she born in the northern part of
Gwinnett?
A. The Suwanee area of Gwinnett County.
Q. The Suwanee, Buford area?
A. Uh-huh [affirmative].
Q. Okay.
Is that where the family was from?
A. Uh-huh [affirmative].
Q. Okay.
MS.
ROGAN: That's all I have. Thank you.
THE
COURT: Redirect?
MR.
DAVIS: Nothing, Your Honor.
THE
COURT: You can come down.
[The
witness stepped down.]
MR.
PORTER: Your Honor, subject to the
tender of certain items of physical evidence, with that, the state would rest.
THE
COURT: Would you approach the bench,
please.
[Counsel
approached the bench, and the following conference ensued outside hearing of
the jury.]
THE
COURT: Are the items tendered, are
those just cleaning up the record?
MR.
PORTER: Yes, sir.
THE
COURT: Is there anything else we're
going to need the jury for?
MR.
MOORE: Not that I know of, Your Honor.
THE
COURT: I think I'm going to hold them.
I think I'll send them down for about a twenty-minute recess just in case we
need them for anything and if I need to give them any further instruction, and
we'll just see where we are at that point, then. Okay.
MR.
PORTER: I'm just going to tender the
items just so that we don't have to get into a big argument in front of the
jury.
THE
COURT: I understand. Okay.
[Bench
conference concluded.]
THE
COURT: We're going to -- before we
proceed further, we'll address first the issues that don't require the presence
of the jury, and at that time, then I'm going to bring you back for further
instruction, and I think what we're going to be doing is, at this point when
you come back or shortly thereafter, releasing you for the afternoon, and
commence with the balance of the case the first thing in the morning.
But
at this point let me remind you that you've heard a good portion of the case at
this point. You've not heard it
all. I remind you you ought to keep an
open mind. You ought not to make up
your mind yet. You ought to continue to
wait, look and listen for the balance of this case with an open mind. You ought not to commence any deliberations
or discussions amongst yourselves or with anybody else or allow anybody else to
discuss the case with you or in your presence in any manner.
I
think we'll take -- let the jurors have twenty minutes. If you want to smoke a cigarette and get
something to drink or that sort of thing, you'll have time to do it, and we'll
take twenty minutes before we recommence with the jury.
If
you'll go with the bailiff, please.
[The
jurors were excused from the courtroom.]
THE
COURT: Mr. Porter, insofar as the
state's exhibits, unless there's a need to do it some other way, what I'd like
to do is just take it from the top as far as what exhibits are in, are
identified, in or out, or whatever, and see what my notes -- get some
indication from my own notes as to where we are, unless you want to go to
specific items first and then come back and do that.
MR.
PORTER: Your Honor, I'm prepared to do
it either way. I would ask for a moment
-- the court reporter had earlier provided us with a list that was highlighted
with the items that have not been admitted, and I inadvertently left it
downstairs. If we could ask for a copy
of that list, it would probably expedite the process.
THE
COURT: Do you have that handy, Mary?
THE
REPORTER: I think I do.
THE
COURT: Do you want a copy of it or a
couple of copies of it?
MR.
PORTER: Yes, sir. I'll make one for the defense also.
THE
COURT: That'll be fine. We'll just pause for a moment.
[Pause]
THE
COURT: All right. Let's go over the state's exhibits from my
notes and see what we have in and out.
I
show insofar as State's Exhibit 1 being not identified or tendered. I don't show a State's 1.
MR.
PORTER: Your Honor, that was part of a
stipulation.
MR.
MOORE: That was a stipulation.
THE
COURT: Was that one of the charts?
MR.
MOORE: Aerial map. That was the aerial map, I believe, wasn't
it, Mr. Porter?
MR.
PORTER: The aerial map is 4. I believe the diagram is 5. Let's see what 1 is.
THE
COURT: All right. Let's look.
MR.
PORTER: State's 1 through 4 were
stipulated diagrams, Your Honor. They
consisted of the calendar, the aerial photograph, the diagram of the muffler
shop, and the diagram of Peachtree Industrial Boulevard. I believe the calendar was Number 1.
MR.
MOORE: Number 4 is the aerial map.
MR.
DAVIS: The calendar is State's Exhibit
1.
THE
COURT: All right. 1 is the calendar for the month of April?
MR.
PORTER: Yes, sir.
THE
COURT: '93. And that was stipulated in; is that correct, Mr. Moore?
MR.
MOORE: That's correct, Your Honor.
MR.
PORTER: Correct.
THE
COURT: I show 2 is the diagram of
Gwinnco Muffler, and I show that as being stipulated in.
MR.
PORTER: That's correct, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: That's correct, Your Honor.
THE
COURT: And I show 3 as the 911 call
card.
MR.
PORTER: No, sir. 3 is the diagram of Peachtree Industrial
Boulevard from where it four-lanes to its intersection with R. H. Smith
Boulevard.
THE
COURT: All right. Is 3 marked on it that way?
MR.
DAVIS: Yes, sir, it is.
MR.
MOORE: Yes, it is, Your Honor.
THE
COURT: Okay. And 3 is what, then?
MR.
PORTER: 3 is the diagram of Peachtree
Industrial boulevard from where it goes from two lanes to four lanes to its
intersection with R. H. Smith Boulevard, and that has been stipulated into
evidence.
THE
COURT: All right. State's 3 is the Peachtree Industrial
Boulevard diagram, and that's stipulated in; is that correct, Mr. Moore?
MR.
MOORE: That's correct, Your Honor.
THE
COURT: And State's 4, then, is that the
call card?
MR.
PORTER: That's the aerial photograph.
MR.
MOORE: That's the aerial map, Your
Honor, and it was stipulated to also.
THE
COURT: I wonder why I've got the 911 --
call card for 911.
MR.
PORTER: Your Honor, the 911 call card
was State's Exhibit Number 73.
THE
COURT: Well, you're right. I show that as the 911 call card as well.
MR.
PORTER: Which has been tendered and
admitted.
THE
COURT: Well, it must've been 73 and
somewhere along the way I took that as a 3.
Okay. That's what it is. Okay.
4 is -- what is 4 again? That's
the aerial photo?
MR.
PORTER: Yes, sir.
THE
COURT: And that's an aerial photo of
what?
MR.
PORTER: Of the northern end of Gwinnett
County including the intersection of Georgia 20 and Peachtree Industrial
Boulevard with labeled locations of the Gwinnco Muffler and the various side
streets, Your Honor.
THE
COURT: All right. And that's stipulated, Mr. Moore?
MR.
MOORE: Yes, Your Honor.
THE
COURT: It's in. All right.
I show photographs of the crime scene -- I show commencing with State's
5 and going through State's 22, all being photos of the victim and the motor
vehicle and all that, the crime scene, and all of them being admitted?
MR.
PORTER: That's correct, Your Honor.
MR.
MOORE: That's correct, Your Honor.
THE
COURT: Mary, if your records show
anything different, please make it known.
All right. So that takes us
through State's 22.
State's
23 was the victim's glasses, and those are admitted.
MR.
PORTER: That's correct, Your Honor.
THE
COURT: I show State's 24 is the tire
from the victim's vehicle, and I don't show that being offered or admitted.
MR.
PORTER: That has been identified, but
has not been offered. It has not been
tendered or admitted.
THE
COURT: All right.
MR.
PORTER: At this time we would offer
State's Exhibit Number 24.
THE
COURT: Mr. Moore?
MR.
MOORE: [No response]
THE
COURT: Does that include the cut-out
portion?
MR.
SMEAL: Yes, it does.
THE
COURT: Okay. That's all together.
MR.
PORTER: Yes, Your Honor. It's in an envelope attached to the wrapper.
THE
COURT: Okay. I didn't recall if that was offered separately or not. Mr. Moore?
MR.
MOORE: Your Honor, we would object to
that since it's not in substantially the same condition. It's been cut apart. We weren't given an opportunity for any --
since it was cut up by the time we got it from the crime lab, there was no
possibility for an independent test, so we would object to that.
THE
COURT: State's 24 is admitted over
objection. I show State's 25 as the
test tube of the victim's blood from the autopsy. I show that as being admitted.
MR.
PORTER: Yes, Your Honor.
THE
COURT: Mr. Moore, any disagreement --
MS.
ROGAN: It was admitted over objection.
THE
COURT: All right. I show photos 25A and then 26, 27, 28, 29
and 30 and 31 and -- I show those through 31 being photos related to the
morgue.
MR.
PORTER: And the autopsy, Your Honor.
THE
COURT: Yes.
MR.
PORTER: Which were admitted over
objection.
THE
COURT: All admitted. All right.
And I show State's 32 as the photo lineup, which included the defendant. I don't show that being offered or admitted.
MR.
PORTER: Your Honor, that has been
identified by Sergeant Cline as well as by Mr. Kautter, and the state would
tender it into evidence at this time.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we don't have any
objection to the photographs themselves.
We do maintain our objections to the procedures that were used in
carrying out the identification.
THE
COURT: All right. With that notation it's admitted without
objection. I show 33 as the $1500 check
admitted.
MR.
PORTER: Yes, Your Honor. I think we can safely say, according to my
records, State's Exhibit Number 33 through 76, inclusive, are various items of
physical --
THE
COURT: Well, let's go through them and
make sure everybody understands, and now is the time to make sure we've got it
straight on the record.
All
right. 33 is the $1500 check, and
that's in.
MR.
PORTER: Yes, sir.
THE
COURT: Mr. Moore, as I go through
these, if you have any disagreement, just make it known.
MR.
MOORE: We'll make them then, Your
Honor.
THE
COURT: Okay. 34 is the -- I show that as a statement.
MR.
PORTER: Bank statement, Your Honor.
THE
COURT: Okay. The victim's bank statement November of '92 as being admitted.
MR.
PORTER: Yes, sir.
THE
COURT: 35A and B are victim's deposit
slip and check, and those are admitted.
36 is the savings account statement of the victim admitted. 37 is a savings account deposit slip
admitted. 38A, B, C and D are four
checks from victim to People's Bank, all admitted. 39 are the victim's savings withdrawal admitted. 40 is the teller tape of deposits with
respect to -- I guess that's the --
MR.
PORTER: That's the withdrawal of the
$6375, Your Honor.
THE
COURT: -- by the victim. Okay.
And that's admitted. 41 is the
victim's checking account statement, March of '93 admitted. 42 are four documents, A, B, C, D and E,
deposits, cash receipts, checks and those --
MR.
PORTER: These are all various
transactions on March 12, Your Honor, including a deposit, a split deposit of
$500 with a cash-out of $9845. There
was a check --
THE
COURT: And the victim's paycheck from
CIBA.
MR.
PORTER: That's correct, Your Honor.
THE
COURT: And those are all admitted. Let's see.
Starting with State's 43, that's the gym account admitted. 44 is the gym account admitted. 45 is the gym account admitted. 46 is the same. 47 is a deposit slip with respect to the defendant's gym admitted. 48, 49, 50 and 51 are similar documents for
different dates, all admitted. 52 is a
check from the defendant's gym to Southern Bell admitted. 53 is the defendant's check to the Atlanta
Journal-Constitution admitted. 54,
defendant's check to Mike Brownlee admitted.
55 is the defendant's check to Spearman admitted. 56 is the defendant's check to -- I guess
that's the city of Lawrenceville admitted.
MR.
PORTER: I believe it's the city of
Buford.
THE
COURT: Okay. I just show to Lawrenceville.
At any rate, it's admitted. 57,
58, 59, 60, 61 and 62 are all checks from the defendant to various payees, all
admitted. 63A and B is records with
respect to the Federal Reserve.
MR.
PORTER: Those are the People's Bank's
records, Your Honor, showing the receipt of the money from the Federal Reserve.
THE
COURT: Okay. You're right. General
ledger credit and cash-in document from the Federal Reserve to the People's
Bank. Okay. And that's 63A and B, both admitted. 64 is the --
MR.
PORTER: Another general receipt from
the main street branch or main branch of the People's Bank --
THE
COURT: That's correct. That's the one with respect to $60,000, and
it's admitted. 65 is a statement for the defendant and his wife. 65, 66, 67, 68 are all checking account
statements of the defendant and his wife and are all admitted. 69A and B are deposit slip and check with
respect to the defendant's accounts, admitted.
70A, B and C a check for $100 cash-out and deposit, and that's with
respect to the defendant's accounts, I believe. Is that correct?
MR.
PORTER: That's correct, Your Honor, his
personal account as opposed to the --
THE
COURT: And those are admitted. 71A, B, C and D are the defendant's checks
and other bank records admitted. 72 is
the 911 tape admitted. 73 is the 911
call card with respect to the victim's burglary admitted. 74 is a memo by Sergeant Winderweedle as to
the telephone call from the victim admitted.
75 and 76 are photos of the Unit 197 county vehicle admitted. 77 is a daily log sheet by the defendant of
4/3/93. I don't show that being offered
or admitted.
MR.
PORTER: It has not been offered. Your Honor, we are prepared to offer it at
this time. It's been identified by his
supervisor, Sergeant Stone.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, we have no objection
to that.
THE
COURT: State's 77 is admitted without
objection. 78 is a photo of the victim
admitted. 79 is the car wash receipt,
which has been admitted. 80 is the
order form for the T-shirts admitted.
81 and 82 --
MR.
PORTER: Those are the printouts from
the Federal Reserve, Your Honor. It was
identified by Gregory Smith.
THE
COURT: I believe that's correct. And they're both admitted. State's 83 is a citation to Ms. Forg is
admitted. 84 is the cash bond for the
same person admitted. 85 and 86 are
also citations with cash bond for the same person admitted. 87 is a photo of the defendant's wife. That's admitted for the record only. And 87S is the substituted 87 --
MR.
PORTER: That's correct.
THE
COURT: -- the same photo, and that is
stipulated in, and that'll go out. 88,
89, 90 --
MR.
PORTER: Are the original videos.
THE
COURT: -- are videocassettes. That's the cassettes of the statement;
right?
MR.
PORTER: That's correct, Your
Honor. Those are the original cassettes
of the videotaped statement.
THE
COURT: All right. Those are admitted, but they will be --
well, I guess we can do it, it seems to me, a couple of ways. They either don't go out with the jury or
send the cassettes out with nothing to see them, and they've got the cassettes
in the jury room, the cassettes themselves with them. What are you asking, Mr. Porter?
MR.
PORTER: I'm at the Court's pleasure,
Your Honor. I just want to get them
into -- they've been played for the jury.
I just want to make sure to tie up -- that we've tendered them into
evidence.
THE
COURT: Well, they're admitted at this
point. Mr. Moore?
MR.
MOORE: Your Honor -- nothing at this
time, Your Honor. I guess we can
discuss when we get ready to send them to the jury what's going to actually go
to the jury.
THE
COURT: They're in anyway. Okay.
We have, let's see, State's 91, 92 and 93, those are redacted copies of
State's -- those are the redacted -- those are the ones that were actually
played.
MR.
PORTER: That's correct.
THE
COURT: Those are the redacted copies of
88, 89 and 90, and they're admitted.
94
is the transcript of the defendant's interview that the jurors followed, and
that's admitted for the record only.
That will not go out with the jury.
95
is the original Page 38 in the transcript, which was removed and the jurors did
not see, and that's admitted for the record and will not go out.
96
is the original Page 124, 125 and 126 of the transcript, and, let's see. That will not be going out. It's admitted -- let's see. No, that has not been offered.
MR.
PORTER: Excuse me, Your Honor. 97, the briefcase?
THE
COURT: 96. 96, the original pages 124, 125, 126 from the transcript.
MR.
PORTER: Your Honor, I think -- I didn't
tender them. I will if the Court wants
to complete that, but I had assumed that the Court was just going to order that
that be admitted as a record of the changes that were made in regard to the
M-16 rifle.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I think it would be
appropriate that it be a part of the record, and I don't object to them being
part of the record.
THE
COURT: They're admitted for the record
only. 97 is the defendant's briefcase
taken from the motor vehicle. I don't
show that as being offered or admitted.
MR.
PORTER: Your Honor, the state would
tender that into evidence and offer to admit it at this time.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, subject to our
previous objections and also subject to the fact that that briefcase is alleged
to have had numerous contents which were never inventoried, and we would object
on that basis.
THE
COURT: All right. State's 97 is admitted over objection. 98 was the evidence bag admitted. 99 is the gun belt, which is admitted. State's 100 is the two tubes of blood from
the defendant, which have been admitted.
101 is the pawn agreement, Mr. Thompson, and the pawn shop with respect
to the rifle. That's been
admitted.
102
is the videotape of the victim in the motor vehicle, that being admitted for
purposes of the record. If it goes out,
it will be a cassette only with no means to play it. We'll take that back up at the conclusion of the case.
103
is the bag containing one of the slugs.
I don't show that as being offered or admitted.
MR.
PORTER: Your Honor, both State's 103
and 104 are evidence bags which contained containers which contained the slugs.
THE
COURT: Okay. I was thinking that had the slug in it at this point, but it's
not. That was another bag which had the
slug in it which was removed during the course of the examination of the
witness, I believe. It's just an empty
bag.
MR.
PORTER: Your Honor, it's either that --
that's what I'm trying to keep track of.
It says bag --
THE
COURT: 106 was the canister with a
slug, and 103 was the bag containing the slug, so the slugs are in 103 and 106,
actually the slugs themselves.
MR.
PORTER: Your Honor, 103 was an original
evidence bag which contained the bag which contained the slug.
THE
COURT: Which is now empty.
MR.
PORTER: So we would not tender State's
Exhibit Number 103.
THE
COURT: All right. So it's now empty. All right. That's
withdrawn. 104 is the bag with the slug;
right?
MR.
PORTER: That, Your Honor, we would
tender --
THE
COURT: It's already in. It's admitted. 105 is the plastic bag that had the slug in it, and that's been
admitted. 106 is the canister with the
slug inside it, and that's admitted.
107 is a brown paper bag, evidence bag.
I don't show that as being tendered or admitted.
MR.
PORTER: Your Honor, we would withdraw
that item.
THE
COURT: All right. 108 was another brown paper bag, evidence
bag, and 109 is the same, and they both have been admitted. 110 is a canister with a -- well, that's the
canister with the slug.
MR.
PORTER: Both 106 and 110 have a slug.
THE
COURT: Okay. Those have the slugs.
Okay.
MR.
PORTER: Yes, sir.
THE
COURT: 110 has a slug in it, and it's
-- 108, 109, and 110 are all admitted.
Let's see. Then 111, photo of
the Luminol test, that's been admitted.
112 is the photo of the defendant's front seat.
MR.
PORTER: We would move to admit 112,
Your Honor.
THE
COURT: Mr. Moore?
MS.
ROGAN: Danny, which one is that? I'm showing --
THE
COURT: That was the motor vehicle
before the test.
MR.
PORTER: Your Honor, we would tender
those exhibits at this time.
[Pause
during telephone call at the bench]
MR.
MOORE: Your Honor, Mr. Porter moved to
tender those, and we don't have any objection.
THE
COURT: All right. Is that 112?
MR.
PORTER: Your Honor, that's 112, 113 and
114, which are various photographs of the passenger seat and the arm rest of
the patrol car.
THE
COURT: And 115 I show is also a photo
of the arm rest?
MR.
PORTER: That's correct.
THE
COURT: All right. 112 through 115, any objection, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: They're admitted without
objection. 116 is the passenger side
car seat of the defendant's motor vehicle, and that's been admitted.
MR.
PORTER: Your Honor, we show that that's
been admitted.
THE
COURT: Now, 117 and 118, I don't show
being identified.
MR.
PORTER: Your Honor, those are the white
bags which the car seat was contained in, that the car --
THE
COURT: Wrapping paper?
MR.
PORTER: The wrapping paper,
essentially, and, Your Honor, we do not tender that into evidence at this time,
although it has been identified in helping to establish the chain of custody.
THE
COURT: All right. That's withdrawn?
MR.
PORTER: Yes, sir.
THE
COURT: Or not offered. All right.
I show 119 as the driver's side arm rest, admitted, from the victim's
motor vehicle. Is that the victim?
MR.
PORTER: That's the driver's side arm
rest from the patrol vehicle, Your Honor.
THE
COURT: I was going to say it must
be. It doesn't make any sense any other
way. Okay. All right. That's been admitted. 120 is the bag for State's 119.
MR.
PORTER: Your Honor, that's been
identified, and we'll move to admit that.
That is a paper bag which was -- it's in the seat right now.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: No objection, Your Honor.
THE
COURT: It's admitted without
objection. I show 121 is the four
hundred dollar bills. Any objection? I don't show it as being offered.
MR.
PORTER: Your Honor, we would move to
admit the four one hundred dollar bills.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: Your Honor, since those appeared
suddenly, and the contents of that were never inventoried, and we don't when --
how they got there or when they got there, we're going to object to them being
admitted.
THE
COURT: State's 121 is admitted over
objection. 122 is the photo of the
defendant's locker number 34 in a locked position or condition.
MR.
PORTER: Your Honor, I believe that's
been stipulated.
THE
COURT: I don't note it as being
offered, admitted or stipulated.
MS.
ROGAN: We will stipulate.
MR.
PORTER: It was stipulated.
THE
COURT: 122 is stipulated in. 123 is the defendant's clipboard and pad and
log sheets. I don't show that being offered.
MR.
PORTER: That's been identified by
Sergeant Steve Cline, Your Honor, and we would move to admit it at this time.
THE
COURT: Mr. Moore?
MR.
MOORE: No objection, Your Honor.
THE
COURT: It's admitted without
objection. I show 124 is the flashlight.
MR.
PORTER: That has been identified by
Sergeant Steve Cline, and we would move to admit it at this time, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No objection, Your Honor.
THE
COURT: It's admitted without
objection. 125 is the police hat from
the defendant's vehicle. I show it as
being identified but not offered or admitted.
MR.
PORTER: Your Honor, we would move to
admit State's 125.
THE
COURT: Mr. Moore?
MR.
MOORE: No objection, Your Honor.
THE
COURT: It's admitted without
objection. 126 is the yellow raincoat
-- no, it's the rain pants. Are you
offering those, Mr. Porter?
MR.
PORTER: Yes, Your Honor, we would move
to admit those.
THE
COURT: All right. Mr. Moore?
MR.
MOORE: Your Honor, subject to all the
previous objections that have been made, we don't have any new objections.
THE
COURT: All right. They're admitted. 127 is a brown evidence bag.
I'm not sure what that secured.
The rain pants, I suppose.
MR.
PORTER: No, Your Honor. 128 --
THE
COURT: 128 is the bag for the coat.
MR.
PORTER: Your Honor, 127 contained the
clipboard, the flashlight, the hat and the rain pants.
THE
COURT: Okay.
MR.
PORTER: And we would move to admit
that.
THE
COURT: Any objection?
MR.
MOORE: Is that just the bag?
MR.
PORTER: That's just the bag, 127.
MR.
MOORE: No objection, Your Honor.
THE
COURT: It's admitted without
objection. 128 is the brown bag with
the raincoat, and it's admitted. 129 is
the yellow raincoat, and it's been admitted.
130 is the envelope with the cloth swatch from the motor vehicle. I show it as being admitted. 131 is the RG .38 revolver. I show it as not being offered or admitted.
MR.
PORTER: Your Honor, we would move to
admit the RG.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I'm going to object
to it. We don't know whether that's in
the same condition it was two years ago or not, and we would object to it.
THE
COURT: It's admitted over
objection. 132 is a brown evidence bag,
and I don't recall -- I don't show what that was.
MR.
PORTER: Your Honor, that contained the
plastic rain cover, and they were both admitted.
THE
COURT: Okay. You're right. 133 is the
cap cover, and I show them both admitted.
134
is a photo of State's 135 and its contents.
That's the notepad and cover. I
show that as being admitted. 135 is the
notepad and cover. I don't show that
being offered or admitted.
MR.
PORTER: Your Honor, we would move to
admit the notebook or -- I think it was variously described as a notebook or a
ledger, which was discovered in the briefcase, which was -- the hundred dollar
bills were found in.
THE
COURT: I understand. Any objection?
MR.
MOORE: Your Honor, the same objection
as for -- no inventory was made of this briefcase, and we don't know when or
how that got in there, and we would object to it.
MR.
PORTER: Your Honor, the testimony was
--
THE
COURT: State's 135 is admitted over
objection. 136 is a photo of Officer
Burnette holding 135, that being the pad and cover, and it's been admitted. 137 is Officer Reddy's daily log sheet, and
it's admitted for the record only. 138
is the paper, let's see, with the victim's residence phone number taken from
the defendant's motor vehicle. That's
been admitted. 139, let's see --
MR.
PORTER: Your Honor, 139 through 144 are
the original autorads -- the original autoradiographs of the six probes that
were used in the DNA analysis.
THE
COURT: Okay. 139 through 144, Parts A, B -- well, parts nothing, and then A
and B are the original x-rays, copy of
the x-rays and the photos of the original x-rays for each of the autorads --
MR.
PORTER: That's correct.
THE
COURT: -- and I show all of them as
being admitted.
MR.
PORTER: That's correct, Your Honor.
THE
COURT: Okay. And then 145 through 151 -- let's see -- through 149 are the
partial digestion original x-rays, and a copy of the x-rays, and the photos of
the original x-rays for the partial digestion test.
MR.
PORTER: That's correct, Your Honor.
THE
COURT: And they're all admitted. I show 150, 151 as being the replicate tests
for the original x-rays, copy of the x-rays, and the photo for the
original x-rays, and I show those
being admitted.
MR.
PORTER: That's correct, Your Honor.
THE
COURT: And 152 is the probe chart,
which I don't show being offered.
MR.
PORTER: Your Honor, we would tender that
into evidence as demonstrative evidence.
We understand that it cannot go out with the jury, but we would tender
it into evidence.
THE
COURT: Mr. Moore?
MR.
MOORE: For the record, we don't have
any objection, Your Honor.
THE
COURT: All right. It's admitted for the record only. I show 153 as a photo of the sizing sheet of
LH-1, July of '95. I don't show it
being offered.
MR.
PORTER: Your Honor, we would move to
tender State's Exhibit Number 153.
THE
COURT: Mr. Moore?
MR.
PORTER: That's the sizing sheet that
Keith Goff identified.
MR.
MOORE: Your Honor, we don't have any
objection for the record.
THE
COURT: That's the same as the
others. That was just the one that was
done later for the sixth probe, is it not?
MR.
PORTER: Yes, Your Honor. That was the photo that was taken from the
video camera described by Dr. Herrin of the LH-1. That is the photo of the re-creation of the bio-image.
THE
COURT: Well, but I mean it's a photo --
is that photo any different from the other probes as far as the photo?
MR.
PORTER: Your Honor, only in that it
shows that there was no manipulation or editing of the LH-1 probe according to
the testimony of the witnesses and the signs which were given in the --
THE
COURT: Well, the photos of the x-ray,
of the autorads, they're just contact prints, aren't they?
MR.
PORTER: Essentially, Your Honor. I don't understand the technology of them,
but, yes, essentially the photos are contact.
THE
COURT: Is this a contact print of the
sixth probe or is it done differently?
It's a different size, is it not?
MR.
SMEAL: Would the Court like to see it?
THE
COURT: Is it different? It's a different size, is it not?
MR.
MOORE: Your Honor, I don't believe
that's a photograph. I believe that was
done while Mr. Smeal and I were there, and it's a printout from a computer.
MR.
SMEAL: It's a printout from a
computer. It's a computer printout.
MR.
MOORE: It's not a photo.
MR.
SMEAL: That's correct, Your Honor.
MR.
PORTER: That's the digitized image from
the computer.
THE
COURT: It's a digital photo. It's a digital photo instead of a contact
print of an x-ray negative, sounds like.
Okay.
MR.
PORTER: It's a digital visual
representation of the sixth probe, and we would offer it into evidence.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, I wouldn't object to
it being admitted for the record. I'm
not sure it should go out with the jury, and I would object to that.
THE
COURT: Why would it be different from
the others?
MR.
MOORE: Well, it's not really a
photograph, Your Honor. I mean this
thing was generated by a computer just like any other printout, and I know we
get into some gray areas with the technology, but it's not really a photograph.
MR.
PORTER: Your Honor, our position is
that it is an original piece of evidence regarding the sizing of the bands on
the -- in the bio-imaging computer, and that it is important to show how that
computer works, particularly since the allegation that the computer is somehow
inaccurate or can be overridden, although those are things I think it's
important for the jury --
THE
COURT: That's sort of an interesting
question, and I guess there are some foundation requirements as well. Is it a photo -- you know, like
historically, if it's a photo -- I mean if you look at a digital photo as
opposed to a regular photo from negative, you probably couldn't tell the
difference, but is it legally, does the same law apply?
MR.
PORTER: Your Honor, in any event this
is been identified by Keith Goff as the original document which was produced.
MR.
MOORE: Your Honor, it also has
measurements printed out on it, too, in addition to the digital whatever the
image is there.
THE
COURT: What other information does it
have?
MR.
SMEAL: Your Honor, I believe it has the
banding sizes for several items in the ladder on the LH-1 autoradiograph. I don't believe that those -- I don't
believe that there was testimony as to those numbers, and to that extent the
numbers themselves have not been explained to the jury. The image itself was. Keith Goff did testify as to what the image
was.
THE
COURT: Let's come back to that. I'll just defer that. Let me think about that. We'll just come back to that, and you might
think about it some more, too, and we'll come back to it.
MR.
PORTER: Yes, sir.
THE
COURT: I don't show any state's
exhibits identified, offered or admitted beyond 153.
MR.
PORTER: That's correct.
THE
COURT: All right. The state rests?
MR.
PORTER: Your Honor, with the tender of
those evidence -- with that evidence and with the reserving of the ruling on
State's Exhibit Number 153, the state rests.
THE
COURT: All right. Are we going to have any motions at this
point, Mr. Moore?
MR.
MOORE: Your Honor, we would make a
motion at this time for a directed verdict --
THE
COURT: Well, let me -- I guess what I
was looking for is a yes or no at this point.
MR.
MOORE: Yes.
THE
COURT: That's a yes, I take it. Is that going to be a while, you think, or
--
MR.
MOORE: I don't think it'll be lengthy.
THE
COURT: Okay. We're going to have to do something with the jury. I've got something else I want to look at
for a few minutes before we come back and give the jury direction for in the
morning.
I
think I'd like to take ten minutes, and let's come back and hear your motion
then, and then we'll come back to the jury.
Let's take ten minutes.
[Break
taken]
THE
COURT: Would you approach the bench,
please.
[A
conference was held at the bench outside hearing of the audience.]
THE
COURT: I've got one juror who I
authorized a fax to, I guess, a pastor to talk to his wife. Apparently, he has indicated to the bailiffs
apparently that his wife is very disturbed.
I don't know to what extent it's with respect to him being on this case
or being away from home or whatever, but indicated apparently there's some real
concerns about his wife, and the bailiffs indicate that he's been a little
difficult some of the time wanting more telephone time to talk to her and that
sort of thing.
And
I guess my concern is and my question is as to whether or not there ought to be
an inquiry at this point as to whether he ought to continue serving or whether
he feels like he's got a problem that impacts on his ability to serve or listen
to the evidence or what.
MR.
PORTER: Has he asked to come off?
THE
COURT: No.
MR.
PORTER: Your Honor, I'm not sure that
there's anything for the Court to do until he requests an excusal.
THE
COURT: Well, you know, I think there
are some cases that suggest if he's sort of dysfunctional or, you know, if
there's anything going on with him that makes him unable to do what he's
supposed to be doing, that it's grounds for taking him off. What are your feelings?
MR.
PORTER: Well, Your Honor, I think
unless he either displays behavior that displays to either the Court, the
attorneys, or the bailiffs that he's incapable of carrying on his duties, or he
requests an excusal, I don't think there's anything for the Court to do at this
point. I don't have any objection if
you want to have him make contact with an outside party to talk to his wife to
try and calm her down.
THE
COURT: Well, I've done that. I've okayed the fax. He faxed that. But my question is insofar as dealing with the juror, what do you
think?
MR.
MOORE: Have you got any thoughts,
Elizabeth?
MR.
PORTER: I haven't seen anybody that
looked like they were going out on us.
MS.
ROGAN: No, I haven't noticed
anybody looking distracted.
THE
COURT: Everybody looks normal in the
daytime.
MR.
PORTER: Yes, sir. But I mean they don't seem -- they all seem
to be paying attention.
THE
COURT: Yeah, all the demons come out at
night. That's the way it works, it
seems to me.
MR.
PORTER: They all seem to be paying
attention, and they all seem to be taking notes. They all seem to be behaving appropriately.
MS.
ROGAN: Is this concern communicated by
the bailiffs or by the juror?
THE
COURT: Yes, by the bailiffs.
MS.
ROGAN: Okay. I'm sort of inclined to agree with Mr. Porter that until the
juror himself expresses some desire to have someone intervene, then I'm not
sure it's appropriate to intervene. I
don't know what harm it does, I suppose, if --
THE
COURT: Well, I get some overtones from
the bailiffs that one of the conflicts may be that his wife is conscientiously
opposed to the death penalty, and they've got some disagreements over that.
MS.
ROGAN: Uh-huh. And they argue about that on the phone?
THE
COURT: Well, that, I don't know. Not that I know of. I mean, I don't have any reports that
they're discussing -- that's the reason for the bailiffs to be there is to try
to prevent that kind of stuff.
MS.
ROGAN: Yeah. Yeah.
MR.
MOORE: Maybe they're not talking about
it; he's just worried about what's going to happen when he goes home.
THE
COURT: Well, may be, and I -- you know,
I mean, that's my concern is -- I mean, obviously he knows what her feelings are
before he got on the jury.
MS.
ROGAN: Sure, and I don't think they've
changed during the course of this trial.
THE
COURT: And she knows what his feelings
are, and I don't know to what extent they've got, you know, problems as a
result or what kind of undertones there may be by virtue of -- you know, I
mean, these kind of things provoke some really strong emotion in a lot of
folks.
MS.
ROGAN: Uh-huh.
THE
COURT: And I don't know whether that's
real significant here, mildly, or what, and that's the reason I, you know --
MR.
PORTER: Well, Your Honor, I don't think
there's ever any harm in inquiring. If
the Court wants to either inquire in camera outside the presence of the
attorneys or do it in the presence of the attorneys, I think in this case, you
know -- of course, it's always the Court's responsibility to maintain the
integrity of the jury, and if there's something that you feel may interfere
with that, then as long as everybody knows what you're going to do, if you feel
it's appropriate to call the juror in and say, look, is there a problem. I mean, we've --
THE
COURT: Well, that's one alternative,
and I've been giving that some consideration.
MR.
PORTER: And we've already had the Court
address one juror about his demeanor in the courtroom. If there's some concern, maybe that type of
situation would be appropriate.
THE
COURT: What do you think, Mr. Moore?
MR.
MOORE: Well, everybody was concerned
about the one Mr. Porter is talking about because it was apparent to everybody
in the courtroom that he was doing it and everything.
MS.
ROGAN: And it was distracting other
people.
MR.
MOORE: It was distracting other jurors
and everything. Your Honor, if it was
anything other than a death penalty case, I'm a little concerned about doing
things outside the defendant's presence.
You know, the rule says --
THE
COURT: I don't contemplate doing it
outside the defendant's presence. What
I contemplate doing is kick the cameras out and everybody else out and close
the hearing and ask this juror to come in.
MR.
MOORE: Do you see anything wrong with
that, Elizabeth? I don't.
MS.
ROGAN: I'm still reluctant if he hasn't
indicated himself that it's a problem.
I mean, what a bailiff's perspective is is not the juror's perspective.
THE
COURT: Well, I think I'm going to do
it. I think I'm going to do it. I just think that's -- I think the time is
now, and I think that's the appropriate thing to do.
[Bench
conference concluded.]
THE
COURT: We have a matter to take up with
a juror, and I'm going to close the hearing at this point.
We're
going to need to shut the camera off, shut the sound off. We 're going to need to -- except for the
parties and attorneys, we're going to go into a closed hearing at this point. So I'm going to ask everybody to leave
except the parties, attorneys, and shut the camera down.
And
how about the deputies step outside to the media room and make sure the
camera's off and the sound is off, please.
Do so now, please.
[Whereupon,
all individuals exited the courtroom as directed by the court.]
-
-
-
-
CLOSED HEARING
THE
COURT: Let's ask Mr. -- I'm going to
ask Mr. Franz to come in. I'll ask you
to bring Mr. Franz, F-r-a-n-z, and
when he comes in, just put him in the first chair in the jury box. He'll probably be most comfortable there. And we're going to need a separate jury room
available. When we get through talking
to him, put him in a separate jury room, unless I direct otherwise, so that
he's separated from other jurors until we decide what we're going to do
here.
Ask
Mr. Franz to step in please.
[The
juror was escorted to the courtroom to the jury box.]
THE
COURT: Just be seated, if you would,
Mr. Franz.
JUROR
FRANZ: Yes, sir.
THE
COURT: Mr. Franz, I have -- I'm not
bringing you in to in any way try to embarrass you or suggest any wrongdoing on
your part, but I know that -- I have a concern that -- I know there have been
some difficulties -- that you've had some concerns about your wife's condition
and about, I guess, the impact on your wife in the course of serving on this
jury.
I
understand that to be the case, and I wanted to inquire as to is that a
problem, do we have a problem, or do you have a problem such that it's of a
magnitude to impact on your ability to listen to the evidence or continue to
serve fairly and impartially in deciding this case or not? That's my inquiry.
JUROR
FRANZ: No, sir, I do not.
THE
COURT: Okay. So there is -- we don't have a problem insofar as you being able
to fairly and impartially hear the evidence as it comes in, find the facts, and
apply the law as given you in charge by the Court, and reach a verdict that
speaks the truth?
JUROR
FRANZ: That's correct, Your Honor.
THE
COURT: All right. And if -- and I'm not suggesting what the
verdict should be, but in the event that the jury returned a verdict of guilty
in this case and it were necessary to go to the next proceeding, that being the
proceeding as to whether there is a life or death sentence, could you again
listen to the evidence in the matter and fairly and impartially decide that
matter either for life or for death, and by deciding the facts fairly and
impartially and applying the law as given you by the Court? Can you do that?
JUROR
FRANZ: I believe I would have
difficulty doing that as this point.
THE
COURT: And why is that?
JUROR
FRANZ: Because apparently of the impact
on my wife.
THE
COURT: And would you tell us about
that.
JUROR
FRANZ: It has become clear during the
very limited communication that I've had with her during this trial that she's
a conscientious objector to the death penalty.
THE
COURT: Do you think -- has that
manifested itself in your conversations with her that -- well, I guess my
question is, in what way has it manifested itself or in what way does that
impact on your ability to sit as a juror in a penalty phase?
JUROR
FRANZ: I guess it's the emotional
impact upon me. I can still be
impartial, but it's wearing on my emotion.
THE
COURT: Do you think that recognizing
that when this matter is resolved that -- and you're going to go home and
rejoin your family, do you think that your wife's views would be a matter that
would impact on your ability to fairly and impartially deliberate and reach a
verdict in a penalty phase?
JUROR
FRANZ: I believe it would, Your Honor.
THE
COURT: Do you have any question you
wish to pose, Mr. Porter?
MR.
PORTER: Mr. Franz, we went through this
all at one time, but do you believe that the fact that your wife has expressed
a conscientious opposition would inhibit or prevent you from considering the
possibility of the imposition of a sentence of death with the prospect that you
would have to go home after making that decision?
JUROR
FRANZ: Considering -- considering that
possibility, I think I can still be fair and impartial. The difficulty -- the real difficulty has
been the extremely limited communication that we have had in the process of
sequestration.
MR.
PORTER: I guess what I'm really asking
you is do you anticipate if you were to vote or to vote to impose a sentence of
death, do you anticipate a problem at your house with your wife --
JUROR
FRANZ: Yes.
MR.
PORTER: -- when you go home from that
verdict?
JUROR
FRANZ: Yes.
MR.
PORTER: And do you feel that that
anticipation will cause you to be hesitant or reluctant or even prevent you
from fairly considering the sentence of death as an appropriate sentence?
JUROR
FRANZ: Yes.
THE
COURT: Mr. Moore, any question?
MR.
MOORE: No questions, Your Honor.
THE
COURT: To what extent at this point is
your wife's condition impacted by your service on this case? How would you assess that at this point?
JUROR
FRANZ: Part of the difficulty, Your
Honor, has been the fact that we relocated here about a year ago, and so she
really has been cut off from our family.
I mean, in other words, her mother doesn't live down the street or
anything like that. So the -- and I
have not really been able to assess the level of support, a support network --
well, and I should also comment that there have been some other difficulties of
a personal nature during the week.
So
it's been sort of a combination of things.
On the one hand, she, ten days -- before I got here expressed the
opinion that she respected my position regarding the death penalty, and that
even as recently as today my position is pretty much intact. But being unable to really converse with her
-- I mean, we're limited to five minutes a day, and until last night I thought
we were doing fine.
Something
happened yesterday that I was unable to ascertain just what happened, leading
up to my discussion last night asking Ms. Ash to call her and talk to her to --
just to talk to her. So I really don't
know what condition she was in at the end of last night or today.
THE
COURT: Do you have a concern about a
severe emotional problem? Or how would
you characterize it?
JUROR
FRANZ: I would characterize yesterday's
discussion on the phone as fairly severe emotional distress, but I don't know
-- I don't know precisely what's leading up to -- I mean, I haven't had enough
-- my frustration has been not having enough time to discuss through, because I
know there are other things going on as well.
And I might also point out that she had to go have some fairly routine
medical diagnostic tests. I forget
what. I guess that was yesterday.
THE
COURT: Any other question, Mr. Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: I'm going to ask -- at this
point, Mr. Franz, I'm going to ask you to step into one of the other jury rooms
with Mr. Allen, a separate jury room from the other jurors, for just a moment,
Mr. Franz.
MR.
MOORE: Your Honor, before he steps out,
Ms. Rogan indicated she didn't agree with me.
Would you mind if she asked some questions?
THE
COURT: Go ahead.
MS.
ROGAN: All right. Thank you.
Mr. Franz, is it your desire not to serve on this jury any longer?
JUROR
FRANZ: Good question. It's become difficult. My reaction is that I've gotten this far,
that I would like to continue, but it's -- but the distress that I perceive at
home has been very, at least as of yesterday, has been very difficult. Being sequestered is difficult.
MS.
ROGAN: I'm sure it is. Would that be remedied by more contact with
your wife so you could ascertain what her distress is about?
JUROR
FRANZ: I -- we have -- we, the jury,
asked the judge to double the number of telephone lines into the hotel from one
to two, but that request was declined.
That would've at least resulted in ten minutes of daily discussion.
THE
COURT: Well, it hasn't been declined or
been denied. It just hasn't been
granted yet.
JUROR
FRANZ: Oh.
THE
COURT: But anyway, go ahead.
MS.
ROGAN: Did I hear you correctly when
you said that the distress you noted yesterday was possibly about something
totally unrelated to the issue that we're asking about?
JUROR
FRANZ: There were other contributing
factors that occurred yesterday, yes.
MS.
ROGAN: And you haven't been able to
ascertain what those factors are?
JUROR
FRANZ: Not fully.
MS.
ROGAN: Were you aware of your wife's
feeling about the death penalty before you became a juror in this case?
JUROR
FRANZ: Not to the extent that -- to
some extent, but not fully.
MS.
ROGAN: Do you and she agree on every
issue?
JUROR
FRANZ: Most.
MS.
ROGAN: Is there a problem on other
issues when you disagree?
JUROR
FRANZ: I wouldn't say so, no.
THE
COURT: What has been the extent of the
conversation or what has she said to you about the death sentence or about her
feelings since the sequestration?
JUROR
FRANZ: What has occurred -- two things
have occurred. She, of course, now -- I
mean, there are apparently press reports, and her quote to me, and I don't know
which press report this was, but apparently in the jury pool there was a
priest, and the priest made some statement about being Christian and being
against the death penalty.
I
do not -- I'm not an active member of the Catholic church at this moment, but I
was raised Roman Catholic. I was born
into that church, and so her challenge to me has been, 'How can you be there
when I read in the paper that a spokesman for that church made public
statements regarding opposition to the death penalty, and you -- and you
apparently don't agree with what that priest said.'
THE
COURT: Okay. Is your wife Catholic as well?
JUROR
FRANZ: No. We're members of the Methodist church at the moment. In fact --
THE
COURT: Any other question, Mr. Porter?
MR.
PORTER: No, Your Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: Mr. Franz, if you'll go with Mr.
Allen. In a separate jury room for the time being, Mr. Allen, and we'll be back
to this matter in just a moment. Thank
you, Mr. Franz.
JUROR
FRANZ: Thank you.
[The
juror was escorted from the courtroom.]
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, we would move to
excuse Mr. Franz. I think he stated
unequivocally that his concerns about his wife's problem will prevent him from
giving the state a fair trial if this case were to go to the penalty
phase. I think that goes back to the
standard, if it substantially impairs his ability to be a fair and impartial
juror as far as penalty, and we would move to excuse him.
THE
COURT: Mr. Moore?
MS.
ROGAN: We would oppose excusing the
juror at this point. He has not
requested to be relieved of his obligations.
He did not indicate that -- he said it might affect him. He really doesn't know what his wife's
recent distress is about, and I think that's the gravamen of the problem is
that he isn't able to communicate with her about the other things that are
going on that are causing her to be agitated.
He seems to me to be a very independent-minded person who was aware of
his wife's feelings before he became a juror.
In fact, he indicated they had discussed it, and she was aware of his
position, and he was aware of her position, and I think that the strain of
sequestration has taken its toll on her, but I don't believe that he is
disqualified at this point from serving, and since he didn't initiate the
request, we would oppose his excusal.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, there is one other
matter. He is receiving input.
THE
COURT: That's the other point. He's violated the direction of the Court not
to discuss the matter. His wife's
telling him about the press reports.
MR.
PORTER: Press reports and the feelings
of the Catholic church and everything else.
I don't think there's any -- I think this juror has been tainted to the
extent --
THE
COURT: That's the reason I wanted to
address it this afternoon if we've got this type of problem or potential
problem. I mean, I don't want to have a
grave problem tomorrow if we've got this kind of problem. Mr. Moore, anything else?
MR.
MOORE: Your Honor, I've got a concern
about this whole procedure. I mean, I
didn't know what the Court was going to inquire when we brought him in here,
but when we start re-voir-diring him in the middle of the trial, I've got grave
concerns about that even if the Court doesn't, and I've got even more grave
concerns about me and Mr. Porter voir diring in the middle of the trial when
they've heard half of the evidence, I mean --
THE
COURT: Well, the question is, it seems
to me, whether he's qualified to serve at this point. And the first part of it is, we've got, obviously, a violation of
the direction of the Court not to discuss the matter. I mean he's been discussing the publicity, which is -- with his
wife. I mean, that's what he just said.
MS.
ROGAN: Well, Your Honor, the incident
that he described was during jury selection, which was prior to the time the
jury was sequestered, so he had access to those same articles should he choose
to read them. It wasn't -- even though
they were under direction not to, I
don't -- he didn't indicate anything about the facts of the testimony that had
come out or the spin that the media is putting on the case itself. That was more with regard to selection of jurors.
We're
also concerned, I suppose, along those lines, though, what are the other
jurors' conversations about, who's monitoring.
I mean, if the bailiffs are monitoring them --
THE
COURT: Well, is the bailiff -- you
know, I guess you can put them on a speaker phone. That's the other alternative, you know, as opposed to listening
to them. Or have them talk to nobody,
in which case, I guess, you'd have a rebellion, you know, in about a week, you
know. I mean, he's having problems --
MS.
ROGAN: I understand.
THE
COURT: -- and he's had the opportunity
to use the phone on a limited basis at night and have lunch with his wife on
Sunday, you know. So I guess --
MS.
ROGAN: Are bailiffs just listening to
one end of the conversation? Is that
what's happening?
THE
COURT: Yeah. Yeah.
MR.
PORTER: Your Honor, I think there's one
other point to be made here is that, although the state agreed, there was a
request for a sequestered jury.
[Pause]
THE
COURT: Well, in the case of McGuire v.
State at 200 Ga. 509, the opinion in that case was that the trial judge did not
abuse his discretion in concluding that the failure of a juror to adhere to his
instructions to decide the case solely on the basis of the evidence introduced
at trial, combined with the juror's subsequent conduct and attempt to influence
the other jurors to do likewise, constituted, quote, legal cause for his
removal.
That
case was pursuant to OCGA 15-12-172, which provides that if at any time,
whether before or after submission of the case to the jury, a juror dies,
becomes ill, or upon other good cause shown to the Court is found to be unable
to perform his duty or is discharged for other legal cause does, then the
alternates come in.
And
I think a juror who has violated the rule -- violated the direction of the
Court not to discuss the matter, and who, in fact, during the course of
sequestration has been discussing with his wife her views on whether or not a
death penalty ought to be imposed, and is being pressured by her as to what
kind of Catholic is he that the priest said -- Roman Catholic priest indicates
that as a Catholic you can't impose the death sentence, and what kind of
Catholic is this juror. Well, that kind
of, first, improper discussion and with that kind of emotional persuasion,
we've got somebody sitting at home out there in the evening telling this juror
and discussing with this juror what his decision should be, or, more nearly,
what his decision should not be, I think is grounds for excusing the juror
under this Code Section, and that's going to be the order of the Court.
You
can perfect the record after we turn him loose, if you wish. I'm going to excuse Mr. Franz from any
further service. I don't want him back
in the jury room with the remaining jurors.
We're
going to need to arrange transportation for him to go back to the hotel to pick
up his items. And there should be,
while he's there, no contact, no conversation with any of the other jurors, and
then give him whatever transportation and assistance he needs.
Who's
our deputy in charge? Okay. We'll need some transportation for him, and
we'll need that right away.
Mr.
Allen, I'm going to ask you to ask Mr. Franz to come back in, please.
[The
juror was escorted to the courtroom and to the jury box.]
THE
COURT: Just have a seat, Mr.
Franz. Let me ask, Mr. Franz, have you
had any conversation with any of the other jurors about your wife's views or
any comments she's made about being a conscientious objector?
JUROR
FRANZ: No.
THE
COURT: All right. What I'm going to do is excuse you from
further service on the case, and along with it thank you for your service. I know service is difficult in this
case. It's difficult for everybody. I know it's been difficult for you, and I
appreciate your efforts and sacrifices you've made during the course of jury
service to date. I know it's not been
easy, and we all appreciate all the jurors' willingness to come in and serve at
considerable sacrifice for an awful lot of them.
And
I guess we're all preoccupied with proceeding on with trying the case, but all
of us are mindful of the difficulty that jurors have coming in and serving, and
I just want you to know how I appreciate your being willing to do so. I appreciate your efforts. But taking all the circumstances into
consideration, at this point, I'm going to excuse you from further service in
the case.
And
we have made arrangements to provide transportation back to the hotel. At this point we'll do that immediately,
provide you transportation that you can repack over there, and they'll give you
transportation at that point back to your vehicle or anyplace else you want to
go. Just tell them what you need and
where you want to go, and they'll provide that assistance to you. Okay?
JUROR
FRANZ: Thank you.
THE
COURT: And I hope things go well with
you and Ms. Franz, and I appreciate your responsiveness to the questions. And please understand nobody is critical of
you in any way. Nobody is suggesting
anything improper on your part, and nobody is -- I hope you don't feel that
we've singled you out or embarrassed or caused you any problem in that
respect. Okay.
JUROR
FRANZ: Thank you, Your Honor.
THE
COURT: All right. Mr. Allen, if you'll see about -- do you
have anything in the building you need, Mr. Franz?
JUROR
FRANZ: I have a few papers in the jury
room.
THE
COURT: All right. Mr. Allen, if you'll retrieve those and
provide those to Mr. Franz, and if you'll provide transportation -- Mr. Allen,
do we need a bailiff as far as going back to the lodging and getting in the rooms? Is that a problem or not? Who's got a key?
THE
BAILIFF, MR. ALLEN: Pardon?
THE
COURT: Who has a key to get back in the
juror's room at the hotel?
THE
BAILIFF, MR. ALLEN: Well, we've got all
the bailiffs out there ready to go for the night.
THE
COURT: Okay. Why don't you have a -- we may need to unlock some of the
rooms. Mr. Allen, how about getting one
of our bailiffs with a key to the rooms, if we need a key, to go with Mr. Franz
so that if there's any entry -- is that a problem?
DEPUTY
SOSEBEE: No, sir. We have a master key. We can get him into the room and everything.
THE
COURT: All right.
DEPUTY
SOSEBEE: And we have a man down there
already.
THE
COURT: Okay. That'll be fine, then.
The deputy can drive, then. I
guess that's what we need at this point.
Okay.
All
right. If you'll get those, Mr. Allen.
THE
BAILIFF, MR. ALLEN: Okay.
THE
COURT: Mr. Franz, if you'll just wait
in a separate jury room for the time being and till those are secured, and the
deputy will give you a lift back out there.
And provide him transportation back to the courthouse or to his vehicle
or home or wherever he needs to go.
Mr.
Franz, one other cautionary instruction.
There should be -- on the way out or anything, there shouldn't be any
other conversation with any other juror, should you see any of them. Okay.
JUROR
FRANZ: Okay.
THE
COURT: Thank you, Mr. Franz.
[The
juror was escorted from the courtroom.]
THE
COURT: Anything you wish to put on the
record, Mr. Porter?
MR.
PORTER: Nothing from the state, Your
Honor.
THE
COURT: Mr. Moore?
MS.
ROGAN: Your Honor, we do object to the
Court excusing a juror who did not indicate that he desired to discontinue his
service and did not indicate, in our view, that he was unable to deal with the
issues fairly, and particularly inasmuch as he didn't initiate the
conversations that we've just had with him.
THE
COURT: All right. The ruling will stand as made. Here is the letter that was faxed by Mr.
Franz that was authorized by the Court to be faxed to his pastor to get some
assistance for his wife, and we'll make that a part of the record as well. You can take a look at that if you like, and
you can get a copy of it, if you wish.
All
right. I think what we'll do. Tell them they can come back in. We'll bring the jurors back in. I think we'll -- as far as any rulings on
the state having rested, any motions you want to make, Mr. Moore, we'll take
that up, but I think I'm going to go ahead and send the jury on, and they can
see about feeding them. And let me just
double-check and see where we are with that.
[Pause
in proceedings during telephone call at the bench.]
THE
COURT: What we'll do is bring the
jurors in and release them until in the morning. We'll commence with the defendant's case at nine o'clock in the
morning.
What
do you think at this point, Mr. Moore?
Do you have any idea how long we're going to be with the defendant's
case?
MR.
MOORE: Your Honor, we were working on
that today at lunch, and we think it may be possible that we'd finish by
Saturday.
THE
COURT: Okay. And I guess that'll leave rebuttal, surrebuttal, if any, or to
what extent, I guess we don't know yet, so that it sounds like Monday is the
likely day to -- it sounds like to me likely to be Monday, so what do you
think?
MR.
PORTER: Your Honor, I can't anticipate
what Mr. Moore is going to put up, so I -- and I don't know how long -- for
instance, he mentioned the number of witnesses. If twenty of those are character witnesses, you can blow through
character witnesses as fast as you can call them, practically, so I just don't
know. I think Monday is probably
reasonable, but it could potentially be that we argue and charge on Saturday.
THE
COURT: Okay. Well, we'll see, I guess.
Anything else before the jury comes back, Mr. Porter?
MR.
PORTER: Your Honor, only to assure the
Court that I'm not going to file a motion to limit my closing argument to only
one day --
THE
COURT: Mr. Moore?
MR.
MOORE: Nothing right now, Your Honor.
THE
COURT: Is our other juror, is he taken
care of?
THE
BAILIFF, MR. ALLEN: They're knocking
the door down, Judge.
THE
COURT: Bring the jurors in, please.
[The
jurors were escorted to the courtroom.]
THE
COURT: I apologize for the delay. I had anticipated that we would have you
back in sooner, and perhaps release you a little early this afternoon, but it
didn't work out that way.
We
have at this point -- one of your fellow jurors, because of -- had some
problems which necessitated releasing him from serving further in the case has
been released, so, but we'll be proceeding on.
At
this point the state has rested. We'll
be proceeding in the morning commencing at nine o'clock to hear any evidence on
behalf of the defendant that the defendant wishes to offer, and we'll be
proceeding on with business as usual for the balance of the week and hearing
the evidence for the balance of the trial of the case. The evening meal should be ready
momentarily. They'll have that ready
for you.
Let
me re-instruct you and remind you that there ought not to be any discussions or
deliberations amongst yourselves or discussions with anybody else or allow
anybody else to discuss the case with you or in your presence. Insofar as this case goes there should be no
discussion with anybody under any circumstances about any part of it, and you
ought -- you ought not to make up your mind yet. You ought to continue to wait, look and listen with an open mind
in this case until you have seen and heard the case presented in its entirety,
and when that's concluded, commence making up your own mind and commence
deliberations in the jury room with your fellow jurors toward reaching a
verdict in this matter.
With
that, I'll ask you to leave your pens, pads, notes in your seats. They'll be waiting on you in the morning
when you return, and we should be ready to commence at nine o'clock in the
morning.
Mr.
Allen, if you'll take the jurors, and they should have the evening meal
prepared shortly.
[The
jurors were excused for the day at 5:15 p.m.]
THE
COURT: Mr. Moore, did you have a
motion?
MR.
MOORE: Yes, Your Honor.
THE
COURT: Go ahead, please.
MR.
MOORE: Your Honor, at this -- are you
ready for me to proceed?
THE
COURT: Yes, sir, whenever you're ready.
MR.
MOORE: Your Honor, at this time we'd
move the Court to direct a verdict of not guilty on the offense of murder in
that the state has failed to provide evidence to -- sufficient evidence to
enable a reasonable juror to reach a verdict on that.
We'd
move to have a directed verdict of not guilty on the felony murder on the
grounds that the armed robbery which is the underlying felony offense on which
that is based, there's been absolutely no evidence presented here that would
prove an armed robbery. There's been
speculation about her having the money with her, but there's been absolutely no
evidence presented to this Court that she in fact had any money with her on the
night of the murder, if there was a murder there.
And,
Your Honor, we would also move for a directed verdict of not guilty on
possession of a firearm during the commission of a crime. The state has simply failed to prove that.
THE
COURT: Mr. Porter?
MR.
PORTER: Your Honor, we would submit the
evidence that's been presented to the Court and to the jury thus far shows that
there is certainly sufficient evidence to bring this case to the jury, and to
deny the defendant's motion for directed verdict as to each of the counts of
the indictment. And I'll be happy to
sum up the evidence for the Court as to the state's theory, but I think the Court
is aware of the evidence that's been presented and the theory of the state.
THE
COURT: All right. Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: The motion is denied. Anything else at this point?
MR.
PORTER: Nothing from the state, Your
Honor.
THE
COURT: Mr. Moore?
MR.
MOORE: Your Honor, the only thing,
we're trying to plan, and we're getting close to -- at least the end is in
sight here. I don't how much time the
Court plans to give us to argue, but Ms. Rogan and I would like to split our
time and have both of us argue to the jury on the closing arguments.
THE
COURT: Well, let's see.
MR.
MOORE: We're not asking for more time
--
THE
COURT: You just want to split up your
hour and that be sandwiched in by Mr. Porter if he opens and closes?
MR.
MOORE: Yes, Your Honor.
MR.
PORTER: Your Honor, actually, I think
the maximum in a capital case is two hours.
MS.
ROGAN: Yeah. I was just going say an hour seems a little skimpy.
THE
COURT: Well, okay, you're right, I
guess. Uniform Rules for felonies
generally -- okay.
MR.
MOORE: We're not asking for any
additional time. We're just asking to
be allowed to divide it up.
THE
COURT: Any objection, Mr. Porter?
MR.
PORTER: I don't know a prohibition to
it, Your Honor, and I don't necessarily have any objection.
THE
COURT: I don't have a problem with
it. I think that's fine, if that's what
you want to do. I have no opposition to
it, and you can do it, and that'll be the ruling.
MR.
MOORE: Thank you, Your Honor.
THE
COURT: And you can split it up however
you want. Half and half,
two-thirds/one-third, however you want to do it, just so long as you don't in
the aggregate exceed the time allowed.
MS.
ROGAN: Which is two hours? Is that --
THE
COURT: Well, let's look.
MR.
PORTER: Your Honor, I believe that's
correct by statute that it's two hours in a capital case.
THE
COURT: Well, I don't have the Uniform
Rules here, but we're several days away.
I'll double-check it and you might do the same so that we're all --
MR.
MOORE: Whatever time it is, Your Honor,
we'll divide it up.
THE
COURT: All right. You don't want less than that, I take it?
MS.
ROGAN: No.
THE
COURT: All right. Anything else, Mr. Porter?
MR.
PORTER: Nothing from the state, Your
Honor.
THE
COURT: Mr. Moore, anything else this
afternoon?
MR.
MOORE: No, Your Honor.
THE
COURT: Okay. You'll have your witnesses up and ready to go at nine
o'clock? I would suggest having them
here so that we can proceed on till sometime between five and six o'clock in
the evenings is what I would like to do.
I don't want to stop at three in the afternoons, so have sufficient
witnesses to proceed on.
MR.
MOORE: We've got a number of people on
call, and we've got a number of people coming, Your Honor.
THE
COURT: Okay. All right. Anything else,
Mr. Porter?
MR.
PORTER: No, sir. I can only tell Mr. Moore that I've had to
keep around fifteen witnesses up here to keep up --
MS.
ROGAN: Yeah. We have taken that into consideration.
THE
COURT: Anything else, Mr. Moore?
MR.
MOORE: No, Your Honor.
THE
COURT: All right. Everybody is going to keep their own
exhibits?
MR.
PORTER: Yes, sir.
MR.
MOORE: Yes, Your Honor.
THE
COURT: We'll be in recess till nine
o'clock in the morning.
[The
proceedings were recessed for the evening August 30, 1995, at 5:25 p.m.]
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Reporter's
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