P
R O C E E D I N G
[In the Superior Court of Gwinnett
County, Lawrenceville, Georgia; 9:00 a.m., Saturday, September 2, 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.
[Counsel respond]
THE COURT: Is the state ready?
MR. PORTER: The state's ready, Your Honor. There is one matter, and it's only as a
reminder to the Court. There is one
outstanding state's exhibit, which is 153, which has not been ruled upon by the
Court.
THE COURT: Which exhibit was that?
MR. PORTER: That was the video -- the computer generated
image of Probe LH-1.
THE COURT: Okay.
Let's just come back to that later on today, then. Okay.
MR. PORTER: Yes, sir.
MS. ROGAN: There was one other thing, Your Honor. The notes -- I looked through the notes the
jurors had sent in. One of the jurors
had indicated that he or she was having trouble with the -- looking at the
light screen, so I just thought I'd put everyone on notice of that.
THE COURT: Well, I guess you might -- well, the
extended jury box, it's a little more difficult than usual to -- particularly
if it's a small item, for all the jurors to see, and, thus far, there doesn't
seem to be a real good cure for it, so you might -- I don't know if you can
back away a little bit or show it twice on items that you want to be sure they
see, I suppose.
Are you ready to call your next
witness, Mr. Moore?
MR. MOORE: Your Honor, I believe Mr. --
THE COURT: That's right. We're ready for cross.
Yeah.
MR. MOORE: -- Porter has some cross-examination.
THE COURT: Yes.
Okay. Are you ready, Mr. Smeal?
MR. SMEAL: Yes, Your Honor.
THE COURT: Bring the jury back, please.
[The jury was escorted to the
courtroom.]
THE COURT: Good morning, ladies and gentlemen.
[Jurors respond]
THE COURT: Everybody find their pens, pads, notes? Everybody have a note pad? Okay.
Mr. Moore, if you'll have your
witness retake the stand.
MR. MOORE: Would you call Dr. Choi, please?
[The witness was called to the
courtroom and stepped to the stand.]
THE COURT: You may be seated, please. Dr. Choi, I remind you that you've been
sworn and remain under oath.
THE WITNESS: Yes.
THE COURT: Go ahead when you're ready, Mr. Smeal.
MR. SMEAL: Thank you, Your Honor.
Whereupon,
having been recalled as a witness
and previously duly sworn, was further examined and testified as follows:
BY MR. SMEAL:
Q.
Good morning, Dr. Choi.
A.
Good morning.
Q.
Dr. Choi, when were you first consulted in this case?
A.
I'd have to consult my calendar. A
couple of months ago.
Q.
And have you -- have you issued any sort of report or analysis of your findings
in this case?
A.
No.
Q.
And I assume you're being paid to do the consultant work in this case, and also
to testify in court today?
A.
That's right.
Q.
What is your fee for that? Do you
charge hourly?
A.
I charge hourly for consulting. For
testimony I charge by the day or the half day.
Q.
And do you know what your fee is to date, at this time?
A.
Cumulative, including today, probably somewhere about $1,000.
Q.
And were you asked to prepare a report in this case?
A.
No, I was not.
Q.
Do you know Dr. George Herrin?
A.
Yes, I do.
Q.
Have you consulted with Dr. Herrin about your findings in this case?
A.
No.
Q.
When you had a chance to review the evidence and look at the autorads, and it
became apparent to you that you felt there might be a problem with the partial
digestion protocol, you didn't consult with Dr. Herrin about that question?
A.
No, I did not.
Q.
Was there any particular reason why you wouldn't consult with him about that?
A.
I was not asked to consult with him, and I was not aware that that would be
part of the normal procedure for this.
Q.
And did you go down to the crime lab and speak to Mr. Goff, the scientist who
did this test?
A.
No, I did not.
Q.
Did you go down and ask to look at the original autorads as opposed to the
copies of autorads in this case?
A.
No. I thought the copies were good
enough.
Q.
But until yesterday in court, you had not looked at the original autorads, had
you?
A.
That's correct.
Q.
Dr. Choi, do you know anything about the source of the so-called unknown blood
stains? The car seat? Do you know anything about the source of
those stains?
A.
I know -- what I know is that the blood stain on there came from a car seat.
Q.
Have you ever seen this car seat before?
I'm directing your attention to State's 116.
A.
I think I saw it in here yesterday.
Q.
Okay. Is that the first time you had
seen it?
A.
Yes.
Q.
Are you aware of the fact that there has been testimony that the stain came
from this left side of the arm rest?
A.
No. I'm not aware of the previous
testimony in this case.
Q.
Okay. And you have not -- you have not
inspected this section, have you?
A.
No.
Q.
Did you inspect the -- were you aware that the crime lab cut out a swatch of
that stain and that's what they used for their DNA test?
A.
From the lab notes I know that they lifted a stain from the car seat. That's about what I know.
Q.
All right. You did not -- you have not
inspected that swatch, have you?
A.
No.
Q.
Are you aware of approximately how much DNA was extracted in this case?
A.
Again, from the lab notes. I would have
to refer back to the lab notes, but I'm aware that there wasn't a lot of DNA.
Q.
So you don't recall off the top of your head how many nanograms of DNA was
extracted and analyzed in this case?
A.
I think from the car seat, again, I would have to check the lab notes for a
precise figure. What I recall, it was 5
nanograms per microliter, and I think it would have been somewhere around 50 to
100 nanograms of DNA.
Q.
Is that a sufficient sample of DNA to test?
A.
It should be sufficient for an RFLP analysis, yes.
Q.
Dr. Choi, if I could back up your testimony to the close of yesterday --
A.
Yes.
Q.
-- I believe you were saying at that time that generally you regard the GBI's
procedures as being reliable; is that correct?
A.
Oh, yes.
Q.
And you've apparently consulted with them on at least 30 cases?
A.
Yes.
Q.
And you said that you've only had to testify, I believe, in 11 state cases; is
that correct?
A.
Actually, fewer than that.
Q.
Fewer than that?
A.
Fewer than -- yeah. As for the number
of GBI cases, it might be somewhere around seven or eight.
Q.
Okay. And the one case in which you
testified for the state, was that a federal case?
A.
Yes, it was.
Q.
So that was not done by the Georgia state crime lab?
A.
No.
Q.
So out of the 30 or so cases of GBI that you've reviewed, you've testified in
about seven or eight of those cases, and that was all for the defense; is that
correct?
A.
Actually, I'll have to amend that.
There was one GBI case where the defense engaged me, I reviewed the
evidence, and based on my findings it was the prosecution who actually
subpoenaed me to testify.
Q.
Okay. All right. Now, there's no question, is there, Dr.
Choi, that RFLP procedures are generally accepted in the scientific community
as being reliable?
A.
No, there's no question of that.
Q.
And in terms of the basic steps of RFLP that the crime lab uses, that is to
say, the extraction, the fragmentation, the gel electrophoresis, the Southern
blotting, the creation of autorads, that is well accepted in the scientific
community?
A.
Absolutely.
Q.
And those procedures are used in a research setting, and diagnostic setting,
and in a forensic setting?
A.
That's correct.
Q.
And there are laboratories across the United States that utilize those procedures?
A.
That's right.
Q.
And, in fact, there are forensic laboratories across the United States that use
those procedures?
A.
That's correct.
Q.
Do you know approximately how many forensic laboratories across the United
States are currently doing RFLP analysis?
A.
No.
Q.
If Dr. Herrin testified that approximately 90 laboratories, both public and
private, across the United States are doing RFLP, is that a figure that would
sound about right?
A.
I certainly wouldn't argue with his testimony.
Q.
And there are a number of well-known private companies, such as Lifecodes and
Cellmark and Promega and others that do RFLP?
A.
I know about Lifecodes and Cellmark. I
wasn't aware that Promega does that.
Q.
Now, Dr. Choi, is it your testimony that GBI utilizes lower standards than the
research committee in performing RFLP procedures?
A.
In general, I have not found that to be the case. But in this particular case, I think in using -- in trying to
match partial digest, I don't think their conclusions would meet generally
accepted scientific standards in this particular case.
Q.
Isn't it true, Dr. Choi, that both the GBI crime lab and other forensic
laboratories have to deal with a different set of problems than a research DNA
lab does?
A.
Well, that's true. Forensic samples
impose certain limits, and I think we just have to live with the fact that
because of the small amounts of sample that we can't go back and try to
reproduce some of the initial findings.
And I think that's why important -- that's why it's so important that
the technology of RFLP has been so well established and proven to be reliable
over the years. But it's also very
important that if things do go wrong because of these limitations, that we have
to be aware of these limitations and limit our conclusions if something does go
wrong in the case.
Q.
Dr. Choi, the crime lab basically has to accept the physical evidence as it is
given to them. They don't have any
choice over the original conditions of the sample. Isn't that correct?
A.
That's correct.
Q.
And a stain at a crime scene may come from clothing or furniture or carpeting
or a car seat. There's just no way to
control that?
A.
That's correct.
Q.
And, to that extent, there's no way to control or to know all of the various
possible sources of contamination on those objects; isn't that correct?
A.
That's correct.
Q.
Dr. Choi, when you're doing DNA in your research capacity, what exactly are you
doing DNA on? Is it plants? Animals?
A.
Plant tissues, animal cells.
Q.
And what is the source of your DNA? In
other words, do you have animal cells and plant material in your laboratory?
A.
Yes, I do.
Q.
And do you try to keep those samples under fairly pristine conditions?
A.
We try to keep them under highly controlled conditions so we can reproduce our
results.
Q.
And if you face a problem in a DNA testing, whether that be band shifting or
partial digestion or other problems, are you simply able to reproduce the
experiment?
A.
Well, we have no choice. If we have a
problem, then we have to go back and do it, because if we don't go back and do
it, no one would believe our results.
Q.
But the point is that you have adequate samples to do that --
A.
Yeah.
Q.
-- isn't that correct?
A.
That's correct. That's correct.
Q.
And isn't it true, Dr. Choi, that because of the different nature of their
sampling, the crime lab has to develop protocols to deal with the fact that
they may only have one sample to test?
A.
That's correct.
Q.
And isn't that, in fact, what Dr. Herrin did at the Georgia state crime lab in
developing partial digestion protocol, was an attempt to deal with the fact
that he can't always reproduce a test?
A.
Oh, I recognize exactly what he did, and I think, as I said yesterday, it's a
good start. He's shown that a match is
a possibility. But I don't think his
studies go far enough to reach a valid conclusion.
Q.
If one takes a DNA fragment, Dr. Choi, and develops an autorad, and then
obtains a banding pattern, and then sizes those bands, is it not true that there
is some slight variation in the sizes of the bands if you ran the test over and
over again?
A.
That's correct.
Q.
And is that because of a number of factors, including some of the variations in
the electrophoresis process in the gel, and also the extremely small size of
the fragments and the base pairs involved?
A.
That's true. Any experimental procedure
is subject to some variation.
Q.
So if one sizes, for example, a DNA fragment as a thousand base pairs and one
ran the same fragment again, might one get a thousand and twenty base pairs the
second time?
A.
That's quite possible.
Q.
And that would be even on the same sample, would it not?
A.
Exactly.
Q.
And that measurement is just a function of the varied conditions under which
you have measured?
A.
That's true.
Q.
Are you familiar with the match criteria of the Georgia state crime lab?
A.
Yes, I am.
Q.
Do you know that it is a 4 percent match criterion?
A.
That's right.
Q.
And are you aware that that's empirically based? It's based upon replicate testing that they have done at the
laboratory?
A.
Yes.
Q.
Okay. That is not done on the basis of
a statistical analysis, is it? In other
words, it's not a standard deviation?
A.
It is somewhat related to a standard deviation.
Q.
But it is empirically based; is that correct?
A.
It is empirically based.
Q.
Is that -- do you believe that that is a reasonable match criteria?
A.
Yes.
Q.
Is that a match criteria that would be accepted in the scientific community?
A.
Yes.
Q.
Is that a match criteria that would be consistent with RFLP procedures done in
academia, diagnostics and forensics?
A.
Yes.
Q.
And so it's your testimony that in terms of the general RFLP procedures,
including the match criteria, that the state crime lab generally puts out
reliable results?
A.
Yes.
Q.
Now, if we could focus our attention for a few minutes on this phenomenon known
as partial digestion, first of all, Dr. Choi, that is a recognized phenomenon,
isn't it, partial digestion?
A.
It does occur. I've seen it occur in my
own lab.
Q.
And, in fact, isn't it true, Dr. Choi, that some molecular biologists actually
use partial digestion deliberately to achieve certain results?
A.
Yes.
Q.
Particularly with respect to what's called genomen cloning, isn't it true that
some type of scientists want to establish a certain range of sizes of DNA
fragments, and one way to do that is through deliberate partial digestion?
A.
That's correct.
Q.
And isn't it true that the one way that you do that is through the use of
EDTA?
A. [No
response]
Q. Isn't
that an accepted way to deliberately partially digest?
A.
Yes. Adding EDTA at different times can
achieve -- well, it stops the digestion.
Q.
Okay. Are you familiar with the
restrictive enzyme Hae-III that was used in this case?
A.
Oh, yes.
Q.
Is that a widely used restriction enzyme?
A.
Yes.
Q.
And have you utilized Hae-III?
A.
Yes.
Q.
Do you use Hae-III in your day to day research activities?
A.
Sometimes.
Q.
And so Hae-III is basically cutting the fragments chemically at different
restriction sites; is that correct?
A.
Well, at the same restriction site, but these restriction sites are located all
over the chromosome.
Q.
Right. It's looking for a certain base
pair for you to follow the sequence?//1028
A.
Exactly.
Q.
And do you know what that sequence is with respect to Hae-III?
A.
Not off the top of my head.
Q.
If both Dr. Herrin and Mr. Goff testified that it was the GGCC base pair that
it's looking for, does that sound right?
A.
That sounds right to me.
Q.
And so what EDTA does is it stops the cutting of the restricted enzyme, or
inhibits the cutting; is that correct?
A.
That's correct.
Q.
And so that is -- that is an experiment that is done by molecular biologists?
A.
Yes.
Q.
And in this particular instance under Dr. Herrin's protocol at the crime lab,
he does utilize EDTA to stop Hae-III from cutting the DNA fragments?
A.
Oh, yes.
Q.
And there's no question that that's an accepted technique?
A.
What he did to achieve partial digestion, I have no problems with that.
Q.
Now, Dr. Choi, I suppose, as a scientist, from time to time you've been faced
with the issue of some phenomena that has occurred once that basically can't be
duplicated, and so you have to do your best to explain what has happened?
A.
Yes, unfortunately.
Q.
I mean, that's what -- one thing that scientists do?
A.
Yes. Irreproducible results, we live
with them, we can't report them, no one believes them if they can't be
reproduced.
Q.
And isn't that basically what happened in this case, was the GBI had a -- had
one sample that produced 50 to 100 nanograms of DNA, they were not able to
reproduce the test, and so they gathered together all the information that they
had to explain the banding patterns that appeared on autorads?
A.
I agree that the GBI did their -- actually did their best with the samples as
they found them. The problem is that
they cannot -- the results are -- despite their best efforts the results are
not of good enough quality that you can draw reliable conclusions.
Q.
Dr. Choi, when Hae-III as a restriction enzyme fails to completely cut DNA
fragments chemically, what one is left with is larger fragments than you should
have; is that correct?
A.
That's correct.
Q.
Okay. Partial digestion does not, for
example, result in abnormally smaller segments than you should have?
A.
That should not occur as a result of partial digestion.
Q.
All right. Because what's basically
happening is Hae-III is not cutting the fragment at each GGCC site?
A.
That's correct.
Q.
And when it fails to do that, you have some fragments which are longer than
they should be?
A.
That's correct.
Q.
And with respect to the autorads -- and we'll look at those in a minute -- but
with respect to the autorads, the DNA fragments are basically placed in the gel
and electrified, essentially --
A.
Right.
Q.
-- is that correct?
A.
Electrophoresed.
Q.
Electrophoresis. And they are -- but a
charge is used in order to make them migrate down the gel --
A.
That's correct.
Q.
-- is that correct? And they will do
that on the basis of their size; isn't that correct?
A.
That's absolutely correct.
Q.
An analogy would be if -- people lining up in a swimming pool and you have some
large slow swimmers and some small fast swimmers, and they all start at the
same time, the small DNA fragments are going to get farther down the gel; isn't
that correct?
A.
That's correct.
Q.
And when we look at these autorads, at the top of each autorad we're basically
looking at the larger base pair DNA fragments at the top, and at the smaller,
the smaller fragments?
A.
That's correct.
Q.
Isn't it true, Dr. Choi, that if the extra banding patterns are all larger
fragments -- in other words, they appear towards the top of the gel --
A.
Yes.
Q.
-- that would be consistent with partial digestion if you did not have smaller
extra bands?
A.
That is consistent with a partial digestion, yes.
Q.
If I could direct your attention or have you -- let me set this up first.
[Witness steps to demonstration area]
THE WITNESS: It's not plugged in.
MR. SMEAL: Thank you,
Doctor.
THE WITNESS: Things always work better when they're
plugged in.
MR. SMEAL: Even I could've figured that out.
BY MR. SMEAL:
Q.
Dr. Choi -- I hope everybody can see this.
Dr. Choi, I'd like to direct your attention to several exhibits
here. State's Exhibit 139 is the
original autorad for the probe MS-1?
A.
Right.
Q.
State's 145 is the partial digestion experiment with respect to MS-1. And State's Exhibit 139B and 145B are the
corresponding photographs for these two --
A.
That's right.
Q.
-- is that correct?
A.
That is correct.
Q.
Okay. Looking at MS-1, Dr. Choi, there
appears to be some extra banding patterns in the lane labeled car seat; is that
correct?
A.
That's right.
Q.
And that is above this top, what appears to be a primary band right there?
A.
Right. And perhaps a couple of very
faint bands down here.
Q.
Okay. And isn't it true, Dr. Choi, that
there are no extra bands below the bottom band or don't appear to be?
A. That's correct.
Q.
Is that consistent with partial digestion insofar as you do not have smaller
fragments?
A.
Well, that is -- well, first of all, we have no way of knowing what sizes the fragments
should be in our unknown sample. So
because of that, we can't presume, you know, which are the real fragments and
which might be as a result of partial digestion. We need further evidence to be able to decide that.
Q.
Directing your attention to State's 145, which is the deliberate partial
digestion experiment --
A.
Right.
Q.
-- would you agree that the banding pattern on the second to the last column to
the right, that those bands appear to be consistent or in the same location as
the bands on the car seat?
A.
Yes.
Q.
Would that be consistent with partial digestion?
A.
Yes. And I think this definitely shows
that this pattern could have arisen as a result of partial digestion.
Q.
So in terms of the photograph -- and I understand the photographs don't quite
have the same resolution as the x-ray does -- but what you're saying is that
this second to the last column here, the extra banding pattern, is consistent
with the banding pattern found in the car seat column?
A.
Yes.
Q.
Is that correct?
A.
That's correct.
Q.
Before you take that off, Dr. Choi, let me ask you one more question about
MS-1, if I might. Would you agree that
the bands on the car seat lane are all fairly light, with the exception,
perhaps, of this one band right there, which appears to correspond to this
band, and they are light bands, the banding pattern?
A.
Yes.
Q.
Would you agree that his band and this band visually appear to match the two
bands on Emma Thompson's lane?
A.
Yes. Those two bands, yes.
Q.
And would you agree that none of the bands in the car seat lane appear to match
the banding pattern on Michael Chapel's lane?
A.
Yes.
Q.
Can you conclude from that, Dr. Choi, that if the stain from the car seat is a
mixed sample, if there's a mixing of blood or, for that matter, contaminants --
A.
Right.
Q.
-- would you agree that based on this probe that it appears that the blood of
Michael Chapel is not part of that mixture?
A.
Yes.
Q.
Dr. Choi, I'm showing you what's been marked as State's Exhibit 140, which is
the YNH original autorad, YNH-24; the partial digestion experiment, State's
146; and the corresponding photographs photographs 140-B and 146-B.
A.
Okay.
Q.
Would you agree, Dr. Choi, that looking at the car seat lane, that there
appeared to be no extra bands below the band that I am pointing to right now?
A.
That's true. There are no other bands
below that one.
Q.
Would you agree, then, that assuming -- assuming that this band and this band
are the primary bands, that the extra banding pattern on that lane would be
consistent with partial digestion insofar as they are all larger?
A.
I would not assume that those are the only real bands.
Q.
Directing your attention to State's 146 in the second right lane, and comparing
that banding pattern to this banding pattern, would you agree that those
banding patterns appear to be consistent?
A.
Yes.
Q.
And just to show the jury what we're talking about is the banding pattern on
this lane compared to this lane; correct?
A.
That's correct.
Q.
Does the fact that that banding pattern, those banding patterns on those two
lanes are consistent, is that consistent with partial digestion?
A.
Again, as I said, the GBI -- these results show that that could have resulted
from partial digestion.
Q.
Dr. Choi, I'm not trying to get into semantics here, but when you say 'could
have,' you're saying that those banding patterns are consistent with partial
digestion?
A.
Yes.
Q.
Now, as far as the intensity of the lanes on the car seat, would you agree that
there are varying degrees of intensity on the bands that we see in the car seat
lane?
A.
Definitely.
Q.
There's no question about that?
A.
That's right.
Q.
That's right here.
A.
Yes.
Q.
We have some -- we have some dark bands?
A.
That's right.
Q.
Well, let me ask you this, Dr. Choi, if there was a mixed sample on the car
seat, let's say we had more than one person's blood, would we -- would we be
expected to see a variation in the intensity of the banding?
A.
Yes.
Q.
You're saying that one could have dark bands on one probe, yet very faint bands
on another probe?
A.
Well, wait a minute. You would have
dark bands -- I'm not quite sure what you're getting at.
Q.
Well, let me show you with respect to State's Exhibit 143-B, which is the
photograph of the V-1 autorad.
A.
Right.
Q.
Okay. Would you agree that all the
bands, and there appear to be four --
A.
Right.
Q.
-- on the car seat lane, are very faint?
A.
Yes.
Q.
If there was a mixed sample from the car seat, would you expect to get this
variation in the intensity of the banding pattern?
A.
Yes.
Q.
Isn't it true, Dr. Choi, that the intensity of a band is basically dependent
upon both the quantity and quality of the DNA?
A.
Yes.
Q.
Well, why would that -- why would that vary so much? If one had DNA from a second blood in the same stain, why would
it show up on very light bands on V-1 but yet would show up as dark bands on
YNH-24?
A.
Well, you could ask the same question about the so-called primary bands. Why did they show up so much darker on
YNH-24 and so much fainter in V-1? The
reason for the probe variations is that these membranes are reused, and it's
the same membrane that you're looking at in each of these autorads. And what they do is they essentially erase
the signal from the membrane and then to look at the next DNA fragment. So in this erasure process, some of the DNA
that's been on the membrane washes off, so every time you reuse the membrane
the signal becomes a little fainter.
Another reason for the probe variation in band intensity is that
the radioactive probe that's used to visualize these bands, the amount of
radioactivity that's associated with the probe can change. So if we call -- if you have what's called a
hot probe, then you get dark bands. If
you have a light probe or a not so hot probe, then you get faint bands.
Q.
So you don't ascribe any particular importance to the intensity of the banding
pattern in terms of concluding whether or not partial digestion occurred?
A.
No.
Q.
Okay. With respect to the bands on the
car seat on YNH-24 there appear to be one, two, three, four, five, six, seven,
eight -- maybe eight or nine bands.
A.
Right.
Q.
Would you agree with that?
A.
Yes.
Q.
If there was a mixture of samples from the original car seat, for example,
could two blood samples produce that many bands?
A.
No.
Q.
And is that because generally one derives two bands from each DNA fragment?
A.
One or two bands.
Q.
And basically you're inheriting one band from one parent and one band from the
other parent?
A.
That's right.
Q.
So in order to produce that many bands on the car seat you would have to have
four or five samples mixed up?
A.
At least four.
Q.
At least four?
A.
That's right.
Q.
Dr. Choi, I'm directing your attention to the original autorad of TBQ-7,
State's 141, the corresponding partial experiment 147, and corresponding
photographs 141-B and 147-B.
A.
Okay.
Q.
Would you agree, first of all, that M. Chapel's blood, there does not appear to
be evidence that M. Chapel's blood is the source of the DNA on the car seat?
A.
That's correct.
Q.
Based on this probe?
A.
That's right.
Q.
And there appears, once again, to be varied intensity of the banding on the car
seat; is that correct?
A.
Yes.
Q.
And there also appears to be one, two, three, four, five, six, seven, maybe
eight -- eight bands on that column?
A.
Yes.
Q.
And, once again, would one need to have on the order of four -- four separate
DNA samples to produce that many bands?
A.
That's correct.
Q.
Now, directing your attention to the second last column, TBQ-7, in State's 147,
does this banding pattern here appear to be consistent with the banding pattern
on the car seat?
A.
Yes.
Q.
And does that -- is that similarity consistent with partial digestion?
A.
Yes.
Q.
And what we're looking at over here is this column, the banding pattern, you're
saying is similar to this [indicating], which is consistent with partial
digestion?
A.
Yes.
Q.
And one does not have any DNA fragments which are smaller than this band right
there; is that correct?
A.
That's correct.
Q.
I'd like to direct your attention to the V-1 probe autorads, State's 143,
partial experiments State's 148, and corresponding photographs, State's 143-B
and 148-B, if you would look at these for a second.
In the car seat lane we appear to have four somewhat faint bands;
is that correct?
A.
Correct.
Q.
First of all, was M. Chapel's blood the source of the stain on the car seat,
based on this probe?
A.
No.
Q.
There appears to be no band in the upper area that would correspond with those
two bands; is that correct?
A.
That's right.
Q.
So he can be excluded as the source of the blood on the car seat, according to
this probe?
A.
That's right.
Q.
Now, why, Dr. Choi, if there was a mixture of samples, then why would we be
seeing eight or nine bands on one -- with respect to one probe, yet on this
probe we're only seeing four faint bands?
Can you --
A.
You can see that with this particular probe, even these four bands -- previously,
in all of the other probes, we have seen four dark bands and four light
bands. Here we're seeing only four
light bands. The way I would explain it
is that the other four bands are simply too faint to be seen.
Q.
So you're saying that there may be other bands on this lane which are too faint
to be seen?
A.
Yes.
Q.
But you don't see any evidence of that from looking at the autorad, do you?
A.
No. If they're too faint to be seen,
they're too faint to be seen.
Q.
That's -- you're hypothesizing that that's a possibility, but there's no direct
evidence of that?
A.
There's no direct evidence of that.
Q.
And directing your attention to 148 in the second last lane, would you agree that
this banding pattern is consistent with this banding pattern in 143?
A.
Yes.
Q.
And is that conclusion consistent with a finding that partial digestion
occurred?
A.
That is consistent.
Q.
Looking at these exhibits, you're saying that this banding pattern compared to
this banding pattern would be consistent with partial digestion?
A.
Yes.
Q.
And, once again, we don't see any smaller fragments that are below either this
band or that band, do we?
A.
That's correct.
Q.
Now, we only have two exhibits with respect to PH-30, Dr. Choi.
A.
Correct.
Q.
State's Exhibit 142, which is the PH-30 original autorad, and 142-B which is
the photograph of that.
A.
Correct.
Q.
Now, on this car seat lane, we see two bands; is that correct?
A.
That's correct.
Q.
Two bands are visible. And would you
say that that's a visual match with Emma Thompson?
A.
Yes.
Q.
And there's no -- there are no extra bands?
A.
That's correct.
Q.
And would you say that based upon this that Michael Chapel can be ruled out as
a source of the blood -- the stain on the car seat?
A.
Yes.
Q.
What you're saying is that these bands do match and that Chapel's bands are
inconsistent with him being the source of that DNA; right?
A.
That is correct.
Q.
And is it your hypothesis once again that there may be six extra bands, but
they simply can't be seen?
A.
Well, we don't --
Q.
Is that why we only see two bands on that lane?
A.
Actually, we don't know how many bands there should be. Even if there were four donors, if we say
that -- it's still possible that for two of the four donors the bands are too
faint to be seen, and that we could have one band each from two of the other
donors.
Q.
Have you worked with PH-30 before --
A.
No.
Q.
-- the probe PH-30? Is that a probe that
you use in your research?
A.
No. Since I don't do -- these probes
are good only for human DNA, and since I don't analyze human DNA, I do not use
PH-30 in my lab.
Q.
So if the scientists from the crime lab, Mr. Goff and Dr. Herrin, if they
testified regarding the frequency with which you see partial digestion based
upon certain probes --
A.
Right.
Q.
-- you don't have any information about that?
A.
That's correct.
Q.
So you don't know whether one tends to see partial digestion more or less often
with PH-30 than, say, MS-1?
A.
That's correct.
Q.
Directing your attention to the LH-1 probe, State's Exhibit 144, and also
144-B, the corresponding photograph --
A.
Right.
Q.
-- there appear to be two bands in the car seat lane; is that correct?
A.
That's correct.
Q.
Would you say that they are a visual match to E. Thompson's bands?
A.
Yes.
Q.
And would you say that M. Chapel could be ruled out as a source of the blood on
the car seat?
A.
Yes.
Q.
What you're saying is that these -- these bands match on State's Exhibit 144-B,
and that M. Chapel's bands show that his blood could not have been the source
of the blood on the car seat?
A.
Yes.
Q.
And, once again, Dr. Choi, we appear to be seeing that are no -- no additional
banding present?
A.
Correct.
Q.
We only have two bands, and while we've seen as many as eight bands on another
probe, we only see two on this one?
A.
That's right.
Q.
Is that correct?
A.
That's correct.
Q.
You may be seated again, Dr. Choi, for just a minute.
A.
[Witness returns to the stand]
Q.
Dr. Choi, in terms of trying to explain the extra banding patterns that we have
looked at a few minutes ago, would you agree that there are several hypotheses
here: One would be that there are
several samples of blood on the one area of the car seat; is that correct?
A.
That's correct.
Q.
And in order for that hypothesis to work, as far as explaining the banding
patterns, I believe you stated we'd have to have at least four samples of
blood?
A.
Something like that, yes.
Q.
Okay. Because only four samples of
blood would give you the seven or eight or nine bands that we see on some of
those probes?
A.
That's correct.
Q.
Is another hypothesis of the extra banding that there was some type of
contamination in the laboratory itself? Could that have happened?
A.
I think that's extremely unlikely.
Q.
Okay. You've reviewed the evidence in
this case, and you've looked -- I assume you've looked at the GBI's notes?
A.
Yes.
Q.
And the paperwork?
A.
That's right.
Q.
Have you reviewed the testimony of Dr. Herrin and Dr. Goff's -- the pretrial
hearing that was conducted in this case?
A.
Not completely.
Q.
Have you had a transcript of their testimony available to you?
A.
Yes.
Q.
And there's never been any issue, has there, Dr. Choi, of laboratory
contamination?
A.
I've never -- I have not seen any evidence of laboratory contamination.
Q.
So, then, the third hypothesis to explain the extra banding, would you agree,
would be partial digestion?
A.
Yes.
Q.
That that is a hypothesis?
A.
Oh, definitely.
Q.
So what we're left with is the hypothesis that there are four stains mixed on
this small section of car seat, or that the extra banding derived from partial
digestion?
A.
That's correct.
Q.
Well, Dr. Choi, given those two hypotheses, and let me ask you the following
hypothetical, or maybe it's not a hypothetical, but based on that fact that in
the partial digestion experiments, the banding patterns do appear to be
consistent with the extra banding on the original rads. Assume that.
A.
Yes. Uh-huh.
Q.
And given the fact that all of the extra banding are towards the top of the gel
rather than the bottom of the gel --
A.
Right.
Q.
-- which suggests that our extra bands are due to larger fragments, not smaller
fragments.
A.
Right.
Q.
And given the fact that we have a varied number of extra bands, and that on at
least three of the -- three of the probes that have extra banding we don't have
seven or eight, we have a smaller number of bands. We only saw a couple extra bands on a couple of the probes.
A.
Right. Right.
Q.
And, finally, given the fact that on two of the probes there do not appear to
be any extra banding patterns.
A.
That's correct.
Q.
Wouldn't all those facts be consistent with the second hypothesis, that is to
say, that the extra banding is due to partial digestion?
A.
Yes.
MR. SMEAL: I have no further questions.
THE COURT: Redirect?
MR. MOORE: Yes, Your Honor.
REDIRECT
EXAMINATION
BY MR. MOORE:
Q.
Dr. Choi, do you have an opinion whether or not the standards should be
different for a forensic scientist and research scientist and diagnostic
scientist?
A.
I do not believe the standards should be any different.
Q.
Would you tell the jury why that's so?
A.
Well, this is a scientific procedure and certain rules of scientific logic
apply. Whenever you apply science you
have to follow the rules of scientific logic.
Q.
And based -- Mr. Smeal asked you about the possible causes of what could cause
the partial digestion here. Can anyone
tell what caused the partial digestion here?
A.
No. Only that it occurred or may have
occurred.
Q.
And any scientist that tried to, it would be speculation as to what occurred
that caused the test not to work; is that correct?
A.
I'm sorry?
Q.
Would it be speculation -- tell us whether or not it would be speculation what
caused the test not to work.
A.
That's true.
Q.
There's no scientific procedure you can run to see why it didn't work, can you?
A.
Not at this point.
Q.
When you say not at this point, do you mean in the future there might be?
A.
There might be in the future. But once
the sample has been processed and the DNA extracted and I think the rest of the
sample has been discarded, there's no way to go back and analyze for possible
chemical contaminants or -- at this point it's too late.
Q.
Do you have an opinion as to whether or not it's appropriate for the forensic
community to lower the standards and accept results that would not be accepted
in the scientific community in general?
A.
I certainly believe that they should not.
Q.
And is it valid to argue that just because they have a poor sample they should
lower the standards?
A.
No.
Q.
You've testified in a number of cases; is that correct?
A.
That's correct.
Q.
And your testimony has been adopted by the Georgia Supreme Court in certain
cases; is that correct?
A.
Yes.
Q.
Would you tell the jury about that?
A.
In the first DNA case in Georgia, that's State v. Caldwell, in Cobb County, my
analysis of the Lifecodes population data was used by the Georgia State Supreme
Court to set down rules as to how a population's databases and statistics could
be generated in the state of Georgia.
Q.
Okay. And with respect to how the
databases are applied, if I gave you a hypothetical that a sample came from a
closed community, a mill town, where a lot of people had relatives there, where
the children tended to stay there and everything, does that affect the
probability of a random match?
MR. SMEAL: I'm going to object to the question, Your
Honor.
THE COURT: On what grounds?
MR. SMEAL: He's not qualified this witness on the basis
of population genetics; and, also, I submit that it's an improper hypothetical
that has not been established in this case.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, Sergeant Stone testified that
the Buford community was a closed community, that it was a mill town, that
people tended to stay there, that their children tended to stay there, and I'm
not asking him for a statistical probability.
I'm asking him about the probability of a random match on these autorads
in a genetics type situation.
MR. SMEAL: Your Honor, first of all, the testimony was
that the victim case from Suwanee; and, second of all, the characterization by
a lay police officer that a community is closed is hardly adequate to pose a
hypothetical population genetics question to this witness.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, the Buford-Suwanee area is right
there together, they have been forever, and the people in the community have
always, until it closed, worked for the Bona Allen plant, and we would say that
based on the testimony, that's a valid hypothetical to ask him.
THE COURT: Objection sustained.
BY MR. MOORE:
Q.
Dr. Choi, can you tell us, if you did have a community where people did not
move very much, would that affect the likelihood of a random match on an
autorad?
A.
Yes, it would.
Q.
How would it affect it?
A.
It would certainly increase dramatically the chances of random match.
Q.
And all the things that Mr. Smeal has asked you about this morning, do any of
those change your opinion?
A.
No, they do not, and let me explain. I
think the GBI has demonstrated that partial digestion is a possible cause of
the result. My problem with that is not
that -- so much that we -- that I disagree that partial digestion
occurred. My problem is that you cannot
match two partially digested samples and then go back and use the same
statistics -- same statistical procedures that you would use for two undigested
samples or -- I'm sorry -- two completely digested samples. In fact, there has been no studies showing
that you can declare matches based on partially digested samples.
Q.
And can you tell the jury what your final conclusion is as to whether or not
there's a valid match in this case?
A.
My final -- my final conclusion is that we can't determine whether there has
been a valid match.
Q.
And why is that?
A.
Because of the problems with the samples.
If we presume or if we accept, even, that there has been partial
digestion then we still -- just the fact that there has been partial digestion
makes these samples unusable.
MR. MOORE: That's all I have, Your Honor.
THE COURT: Recross?
BY MR. SMEAL:
Q.
Dr. Choi, have you done any research into the question of allele frequencies in
population groups?
A.
I have not done research, but I have studied them.
Q.
And the different probes that are used in this case are looking for non-coding
DNA sequences; is that correct?
A.
That's correct.
Q.
And do you have any information or knowledge or research that has demonstrated
that people living in the Buford area have any different DNA sequencing with
respect to the sequences that these probes look for?
A.
I have no idea what the population characteristics are of Buford with respect
to these DNA patterns.
Q.
And when you say that possible digestion was a possible cause of the banding in
this case --
A.
Yes.
Q.
-- you're saying that the evidence is consistent with that result that the
crime lab reached, aren't you?
A.
That's correct.
Q.
And are you saying that any time you have extra banding due to partial
digestion you have to throw the whole experiment out?
A.
That's exactly right.
Q.
That's what you're saying?
A.
Yes.
Q.
Okay. Even if you're convinced that
there was partial digestion and that one can ignore the extra bands, you're
saying that you can't do that; is that right?
A.
I'm -- that -- that's exactly what I am saying. What the GBI has shown is that if you subject a particular DNA
sample to a series of different conditions, you can come up with one treatment
where you can show a similarity in the banding pattern.
My concern is that, all right, if
you start deviating from the accepted protocols and now you start looking for
ways to treat your DNA samples differently, and then search for one condition
where you can get a visual similarity, well, then, we're opening the doors to
all kinds of things where we can take other people's DNA samples, and if they
don't match initially, then we can subject them -- let's see what other
conditions we can use to see if we can get a visual match.
Q.
Dr. Choi --
MR. MOORE: If he's not finished -- Your Honor, if he's
not finished, he's got a right to explain his answer, and Mr. Smeal --
THE WITNESS: Well, actually, I am finished.
MR. MOORE: Okay.
Thank you.
BY MR. SMEAL:
Q.
I thought you were finished, Dr. Choi.
You said 'deviating from their protocol,' but isn't it a fact that the
crime lab does have a published partial digestion protocol?
A.
Published? In what journal?
Q.
Well, a written protocol that they follow.
A.
They have a written protocol that they follow, but there is no standard in the scientific
community that you can declare a match between two unknown samples based on
partial digestion.
Q.
Okay. But you said at the outset that
the use of EDTA to stop a restriction enzyme, okay --
A.
Oh, you can achieve --
Q.
Is -- let me finish the question.
MR. MOORE: Mr. Smeal, let him explain his answer,
please.
MR. SMEAL: I wasn't finished with the question, Your
Honor.
MR. MOORE: He asked a question and then he started
commenting on the question, Your Honor.
THE COURT: State your question, please.
BY MR. SMEAL:
Q.
The question is, Doctor, that you have admitted that deliberate partial
digestion through the use of EDTA is accepted in the scientific community; is
that correct?
A.
That is correct.
Q.
Okay. And the crime lab does have a written
protocol for partial digestion; is that correct?
A.
That's correct.
Q.
And you received a copy of that in preparation for your testimony, didn't you?
A.
That's correct.
MR. SMEAL: I have no further questions.
FURTHER
REDIRECT EXAMINATION
BY MR. MOORE:
Q.
Dr. Choi, just putting something in writing and having a written protocol, does
that make it a valid scientific procedure?
A.
No. And the problem -- I have no
complaint with their protocol for achieving a partial digest. It's the use of the partial digest that I'm
objecting to.
Q.
And that's not generally accepted in the scientific community, is it?
A.
No, it is not.
MR. MOORE: Thank you.
THE COURT: Mr. Smeal?
MR. SMEAL: One more question.
FURTHER
RECROSS EXAMINATION
BY MR. SMEAL:
Q.
Are you familiar with the way in which the other 90 forensic laboratories in
the United States deal with partial digestion?
A.
No.
MR. SMEAL: Nothing further.
THE COURT: Do you wish this witness to remain?
MR. MOORE: Your Honor, we'd ask he be on call just in
case we need him later. I don't think
we will, but we'd request he be on call.
THE COURT: You'll be subject to being recalled. You can come down.
[The witness stepped down from the
stand.]
THE COURT: Call your next witness, please. We'll pause for a moment.
[Pause in proceedings]
THE COURT: Let's take -- we'll take a 10 minute
recess. If you'll leave your pens,
pads, notes in your seats, they'll be waiting when you return. If you'll go with the bailiffs, please.
[The jury was excused from the
courtroom.]
THE COURT: Where do you think we stand as far as the
defendant's case, Mr. Moore?
MR. MOORE: Your Honor, we have two more witnesses. I would expect the next witness to probably
-- it's hard to say how long they'll cross-examine him, but I don't think more
than an hour, and then we have one more witness after that.
THE COURT: Okay.
You'll be prepared to go with any rebuttal once the defendant rests, Mr.
Porter?
MR. PORTER: Your Honor, we'll be -- we'll be prepared to
go with some rebuttal, but based upon Dr. Choi's appearance yesterday, the
soonest we were able to get any rebuttal evidence in regard to that would be
Monday morning.
THE COURT: Okay.
Well, we'll see where we are later this afternoon, then.
What we might do if we have some time
this afternoon and get all the evidence in that we can get in with the
available witnesses is just at that point do a preliminary charge conference
this afternoon and see if we can't that and the form of the verdict and those
kind of things out of the way, basically, and then once we get all the evidence
in and hear the motions, then that ought to expedite the charge conference to
move into argument and charge next -- maybe next Monday, then. Okay?
MR. PORTER: Your Honor, I would state, to expedite the
matter even further, the state has reviewed the standard charge book, and we
have, at this point, no additional requests to charge, assuming that the Court
charges from the charge book on the pertinent issues regarding this trial.
THE COURT: Okay.
We'll start with the pattern charge and then expand that however need be
--
MR. PORTER: Yes, sir.
THE COURT: -- or the deleting of it however need
be. But that will be the basis of the
charge, and then modify it however it appears necessary.
All right. Anything else at this point, Mr. Porter?
MR. PORTER: No, Your Honor.
THE COURT: Mr. Moore?
MR. MOORE: No, Your Honor.
THE COURT: We'll take 10 minutes.
[Break taken]
THE COURT: Is the defendant ready?
MR. MOORE: Yes, Your Honor.
THE COURT: Ready, Mr. Porter?
MR. PORTER: Yes, sir.
THE COURT: Call your next witness, please.
MR. MOORE: Could we bring the jury back?
THE COURT: Oh.
Yes. Thank you. Your motion is granted, Mr. Moore.
[Laughter]
[The jury was escorted to the
courtroom.]
THE COURT: Call your next witness, please.
MR. MOORE: We'd call Dr. Martin Shapiro.
[The witness was called to the
courtroom.]
THE COURT: Dr. Shapiro, if you will take the witness
stand up here and you can go ahead and be seated, Mr. Moore will administer the
oath.
[The witness stepped to the stand.]
MR. MOORE: Would you raise your right hand,
please. Do you solemnly swear the
testimony you're about to give in this case 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. MOORE:
Q.
State your name, please.
A.
Martin M. Shapiro, S-h-a-p-i-r-o.
Q.
Dr. Shapiro, how are you employed?
A.
I am a professor of psychology at Emory University.
Q.
And, if you would, Dr. Shapiro, you have special experience and training in the
area of probability statistics as applied to population databases; is that
correct?
A.
Yes.
Q.
Tell the Court and jury what your training and experience in that area is.
A.
Okay. I have a bachelor's degree from
Yale University and a Ph.D. degree from Indiana University with concentrations
in psychology and mathematics. Within psychology
my concentrations were also in quantitative methods and statistics. I have a law degree from Emory
University. After I got my Ph.D. I
spent a year as United States Post -- I'm sorry -- The United States Public
Health Postdoctoral Research Fellow at Indiana University.
I then moved to Houston, where I
had a position at the University of Houston teaching statistics and
quantitative methods. I then, staying
at the University of Houston, also became a consultant to the Department of
Physiology at Baylor Med School consulting on questions of statistics and
experimental design. I then became a
visiting associate professor of physiology at Baylor Med School, following
which I moved to Emory, where for the last 30 years I've taught mostly courses
in statistics and quantitative methods.
I have published papers on
statistical analyses, and specifically I've published a paper on a statistical
analysis of the FBI population database for their DNA probes.
Q.
And how -- have you testified in court before?
A.
Yes.
Q.
How many times, would you say, regarding population databases and statistics?
A.
Specifically with respect to DNA, probably 25, 30 times, just roughly.
Q.
And have you testified in courts in Georgia?
A.
Yes.
Q.
Have you testified in other states as well?
A.
Yes, numerous other states.
Q.
And have you been qualified as an expert in all those courts?
A.
Yes.
MR. MOORE: Your Honor, at this time we'd offer Dr.
Shapiro as an expert in the area of probability statistics as applied to
population databases.
THE COURT: Do you wish to voir dire the witness as to
his qualifications?
MR. SMEAL: Is he being offered as an expert in the area
of population genetics?
MR. MOORE: Your Honor, I'm not sure what the
distinction is. I'll ask Dr. Shapiro.
BY MR. MOORE:
Q.
Population genetics, what is your experience and training in that area, Dr.
Shapiro?
A.
Okay. I would not call myself a
population geneticist. Within the
question of population databases, there are really two separate areas that have
emerged in recent years. One is
population genetics, which has to do to a large extent with the way in which
populations become substructured because of geography and mating patterns. That is not my area. My area is the statistical analysis of the
statistical properties of the population databases; that is, is a set of
results from one probe independent of a set of results from another probe, that
kind of question, which is -- which is strictly quantitative. So I hope I've answered the question.
MR. MOORE: Your Honor, we would offer him as an expert
in the areas -- and I'm not sure I can do any better than Dr. Shapiro -- that
he's qualified in.
THE COURT: In the statistical analysis of databases?
THE WITNESS: Yes.
MR. MOORE: Yes, Your Honor.
THE COURT: Mr. Smeal?
MR. SMEAL: Your Honor, I'd like to voir dire.
THE COURT: Go ahead, please.
VOIR
DIRE EXAMINATION
BY MR. SMEAL:
Q.
Good morning, Dr. Shapiro.
A.
Good morning.
Q.
I understand you do prefer to be addressed as Dr. Shapiro; is that correct? You have a Ph.D.
A.
I have a Ph.D. Actually, I don't mind
either way.
Q.
You're not a medical doctor, are you?
A.
No.
Q.
And you received your Ph.D. back in 1959; is that correct?
A.
That's correct.
Q.
And the subject of that dissertation was Classical Salivary Conditioning in
Dogs; is that correct?
A.
That is correct.
Q.
And that is classical or operant conditioning is an area of psychology that
you've had some interest in over the years, is it not?
A.
Yes. Actual, the classical conditioning
was originally an area of physiology.
As we all know, it was started by Ivan Pavlov, the Russian physiologist,
so it's an area that actually has traditionally crossed between psychology and
more biological fields.
Q.
For those of us who never got beyond Psychology 101, we're dealing with
Pavlov's ideas about conditioning; is that correct? That's what you have written extensively on over the years?
A.
Yes. I've done a fair amount of work in
that as well as other areas.
Q.
Well, since 1959, your doctoral dissertation, quite a number of your papers
that you've listed on your curriculum vitae deal with the area of classical
conditioning, don't they?
A.
That's true.
Q.
Now, let me show you -- do you have a copy of your curriculum vitae before you?
A.
I think I do. [Brief pause] Okay.
Q.
You list twenty different papers presented, I believe, or approximately twenty,
and I don't believe any of those deal with the issue of forensic DNA or DNA
databases, do they?
A.
Yeah. That's correct.
Q.
And you list, I believe, approximately seven technical reports on your
curriculum vitae, and none of those deal with forensic DNA or forensic DNA
databases, do they?
A.
That's correct.
Q.
And you list approximately thirty-three other assorted publications, and as far
as I can tell the only -- the only article relating to forensic DNA was a
letter to the editor to Nature Magazine that you submitted in 1991; is that
correct?
A.
That's not correct.
Q.
How is that not correct?
A.
It's not correct on two counts. One is
the publication in Nature was not a letter to the editor. It was a peer reviewed piece that is in a
section called 'Scientific Correspondence' because it is an analysis of data
obtained by other people, in this case specifically the FBI. And Nature has a policy that re-analyses of
other -- of data from other sources is put into that section.
The other reason why your statement is not correct is that there
are earlier publications dealing with the chi- square analysis of contingency
tables, which, in fact, is exactly the question and the method used in the
analysis of DNA databases to determine whether they are satisfying the
assumptions of independence or, more specifically, as it's called in DNA, the
assumptions of Hardy-Weinberg Equilibrium and the assumption of linkage
equilibrium.
Q.
Hardy-Weinberg Equilibrium is a concept that arises in the area of population
genetics, does it not?
A.
No. You're wrong. Hardy-Weinberg Equilibrium is simply a label
named after two people, Hardy and Weinberg, that was put on the question of the
independence of alleles using a statistical procedure, a chi-square procedure,
or the binomial distribution test, which is a standard probability statistics
method. So it is really the more
general statistical question that has simply been applied to population
genetics databases, as all other databases, no matter what their subject
matter.
MR. SMEAL: I'd asked this be marked.
[State's Exhibit 155 was marked for
identification by the court reporter.
BY MR. SMEAL:
Q.
Dr. Shapiro, I'm handing you what's been marked as State's Exhibit 155. Can you identify that article?
A.
Yes. It is a piece entitled 'Imprints
on DNA Fingerprints' published by me in September of 1991 in Nature.
Q.
Okay. And I apologize, Dr. Shapiro, if
I mischaracterized this article, but it is under a column called 'Scientific
Correspondence'; is that correct?
A.
Yes.
Q.
And it does begin, 'Sir' dash, and it's signed at the end with your name and
address; is that correct?
A.
Well, it's not signed --
Q.
It's not signed.
A.
-- but it has my name and address, yes.
Q.
And this is a -- by my count, this article -- first of all, do you know how
many words are in this article?
A.
Well, I do know that the limitation on articles in that section is 500 words,
so I assume it's 500 words or less.
Q.
And by my count there appear to be six paragraphs in this article. Does that seem correct?
A.
Nobody's ever asked me that before.
That is correct.
Q.
That's correct? Okay. And this six-paragraph article is what you
referred to earlier as the 'Statistical Analysis of the FBI Database,' isn't
it?
A.
Well, yes. It is. It also has a very large table in it showing
the results of the statistical analysis --
Q.
You're referring --
A.
-- which we're not counting as a paragraph, I think.
Q.
You're referring to that chart right there?
A.
Yes.
Q.
Okay. And out of all the publications
listed in your curriculum vitae, that is the only article that directly relates
to forensic DNA; isn't that correct?
A.
Well, that's the same question you asked me before. Directly in the sense that it's an analysis of the DNA population
database, no, in the sense that there are other papers that deal with the
exactly same kind of statistical technique applied to other kinds of database
questions.
Q.
You don't -- you're not saying today that you have any expertise in the area of
molecular biology, are you?
A.
Oh, no.
Q.
And I believe you stated before you don't have any expertise in population
genetics insofar as you define that as relating partially to questions of
substructure in population groups?
A.
Well, it's always dangerous to say you have no expertise. I mean, I wouldn't claim ignorance. I'm certainly not ignorant of the
topic. I do not claim to be a population
geneticist in the classic sense of studying mating patterns and geographical
differences amongst people.
Q.
And have you taken any either undergraduate, graduate or postgraduate courses
specifically in population genetics?
A.
No.
Q.
Are you a member of the National Academy of Scientists?
A.
No.
Q.
Were you a member of the National Research Council, the first convening of the
National Research Council?
A.
No.
Q.
And are you a member of the more recently formed Second National Research Council?
A.
No.
Q.
Are you a member of the National Academy of Forensic Scientists?
A.
No.
Q.
Are you a member of the American Society for Human Genetics?
A.
No.
Q.
Are you a member of TWGDAM?
A.
No.
Q.
And TWGDAM is the Technical Working Group on DNA Analysis Methods; is that
correct?
A.
That is correct.
Q.
Have you ever attended any of the Promega symposia on DNA analysis?
A.
No.
Q.
I believe you've indicated you are a member of the American Bar Association; is
that correct?
A.
Well, actually, I think I've been negligent in paying my dues, so I'm not sure
I technically am a member.
Q.
But at least at some point you were licensed as a lawyer?
A.
Oh, I'm -- I'm a member --
Q.
Are you still licensed? Okay.
A.
-- of the State Bar of Georgia, yeah.
Q.
All right. And you have never actually
performed any of the RFLP procedures, have you, and you're not a research
scientist to that extent?
A.
That has two parts. Let me --
Q.
Okay. Well, let me narrow the question.
A.
I certainly --
Q.
I'll narrow the question.
MR. MOORE: Your Honor, I'm going to object. He asked a question, and I think the witness
has got a right to answer the question.
THE COURT: Go ahead.
BY MR. SMEAL:
A.
[Continuing] As far as the second part,
I certainly do think I am a research scientist. I would say that with very -- vehemence. As far as the first part, what I have
experience doing is analyzing quantitatively the autoradiograms from DNA
gels. That is, I do have considerable
experience putting the autoradiograms on a digital camera readout and doing the
translation of migration distance to molecular weight. I do not have experience, and claim none, in
actually running the gel; that is, doing the biochemistry part of it. My experience and knowledge, in a sense,
begins with the piece of film, the autoradiogram.
Q.
So with respect to any of the procedures prior to that stage, such as
extraction fragmentation, electrophoresis, hybridization, Southern blotting,
you've never done any of that, have you?
A.
No. And I don't claim expertise in
that.
Q.
And you also -- you have not actually created the autoradiograph. What you're saying is that you have read and
evaluated autoradiographs; is that correct?
A.
That's right.
Q.
And have you had specific training in how to read autoradiographs?
A.
No. I mean, one takes the -- the
apparatus manual, the computer manual, and one follows the instructions of how
to use this device, which is really nothing much more than a light meter.
Q.
You've studied the training and education of DNA analysts and scientists,
haven't you?
A.
Well, I'm familiar with their vitae.
Q.
Well, some of your articles have addressed the issue of scientific bias by
technicians, haven't they?
A.
I wouldn't put it that way. I assume
what you're referring to is that the Nature article does demonstrate that there
is a statistically significant difference between the several FBI DNA
analysts. That is, the different
analysts do get statistically significantly different results.
Q.
What I'm getting at is that people who do DNA in the forensic community, are
you aware of the fact that they receive training in how to read
autoradiographs?
A.
Well, I -- I mean, of course. I assume
they're trained.
Q.
My question is have you also received that training?
A.
As a formal structured matter, no.
Q.
Other than the three days that you visited the FBI, I believe, in connection to
a case back in November of 1991, have you undergone any training at the FBI
Academy?
A.
I wasn't trained at the FBI Academy during that visit. I was visiting the FBI Academy to obtain
information regarding a case and to analyze that information.
Q.
You're not certified, are you, in any field of DNA analysis?
A.
No. There is no certification in the
quantitative analysis of DNA databases.
Q.
Have you participated in any studies or projects mapping the human genome?
A.
No.
Q.
Have you ever been a paid consultant to any of the major private companies,
such as Cellmark, Lifecodes, Promega, Genetic Design?
A.
No.
Q.
And you currently are -- what courses do you currently teach at Emory?
A.
I currently teach a course called Psychology and Law; I teach a course called
Tests and Measurements; I teach a course called Ethics and Law in the Practice
of Psychology.
Q.
And you're tenured at Emory, are you not?
A.
Yes.
Q.
Have you ever taught any genetics courses relating to statistics in their
biology department?
A.
No.
Q.
Have you taught any courses in biostatistics at Emory?
A.
No -- well, there is a department of biostatistics.
Q.
Have you ever taught any courses --
A.
And I'm not in that department, no.
Q.
And, I believe --
A.
Actually, I think it's biometrics.
They've changed their name. I'm
not sure of that.
Q.
And, finally, Dr. Shapiro, you've testified fairly frequently in court on a
variety of issues; is that correct?
A.
Yes. Much more in civil cases,
actually, than criminal cases.
Q.
According to your -- by my count on your curriculum vitae, well over a hundred
times you've listed that you've either consulted or testified in court?
A.
Yes. I'm sure that's right.
Q.
Many of those deal with discrimination cases, civil discrimination cases; is
that correct?
A.
Yes. Those kinds of cases are heavily
quantitative and statistical; and, yes, I've worked in that area.
Q.
Did those include employment discrimination cases? Is that correct?
A.
Yes.
Q.
Education discrimination cases?
A.
Yes.
Q.
Do you generally testify on behalf of the plaintiff bringing those lawsuits?
A.
In those particular cases?
Q.
Yes.
A.
Yes.
MR. SMEAL: Your Honor, I have no further questions at
this time. The state would agree that
Dr. Shapiro is -- appears to be qualified as far as mathematics and statistical
properties of databases. We have some
concern about the overlap between that and population genetics questions, such
as substructuring, and would reserve the right to raise that at a later time,
depending on where his testimony takes us.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, we would to offer Dr. Shapiro as
an expert. Mr. Smeal can object to any
questions that I ask outside of his expertise.
THE COURT: All right.
You're offering him as an expert in what?
MR. MOORE: In probability statistics as applied to
population databases.
THE COURT: All right.
The Court finds him qualified.
Go ahead, please.
DIRECT
EXAMINATION RESUMED
BY MR. MOORE:
Q.
Dr. Shapiro, Mr. Smeal questioned about whether you had testified in various
cases. Did you testify in the case of
the State of Georgia v. Caldwell in Cobb County a few years ago?
A.
No. I did do some consultation on that
case. I did not testify.
Q.
Now, in this particular case, have you seen the state's calculations and their
databases?
A.
Yes.
Q.
And did you and I go down to the Georgia state crime lab and get the computer
disk from them that had that information on it?
A.
Yes.
Q.
And you received that from Dr. George Herrin?
A.
Yes.
Q.
And while we were there the state also ran some bio-images; do you recall that?
A.
Yes.
Q.
Dr. Herrin did, I mean, not the state when I said the state.
A.
Yes, they did.
Q.
Okay. Now, have you had a chance to
evaluate and examine the state's databases in this case?
A.
Yes, I have.
Q.
And did you find any errors?
A.
Yes. There are several problems in the
databases. The most obvious one is that
there is a set of duplicate samples in one of the databases. There are actually twelve duplicates. The way I found them was fairly simple. I simply asked the computer to sort the
cases by sample number, and I got back a warning message saying that the sample
numbers were not unique, they were duplicates.
And so I went back and looked at it, and in one of the databases there
are twelve duplicate samples; they are simply repeated.
I was concerned that maybe I had
created them as I was working with the disk on the computer, so I went back to
the original computer disk that had been given me and looked at it again and,
in fact, there are twelve duplicates.
And including those twelve you get the correct total number of cases, so
they are in there. I mean, it's not
something that inadvertently got added by me, because the total number comes
out to what it's supposed to be.
Q.
Okay.
A.
So that's one serious problem, obviously.
The -- there are other -- there are several other problems. One is a well known and, oh, heavily
discussed, I'll say, problem within DNA population databases, and that is there
is an over-abundance -- there are too many homozygotes. That is, there are too many samples that
have only one observed band in them, only one observed DNA fragment instead of
the usual two. When I say there are too
many, what I mean is there are more than you would expect purely by
chance. That is particularly true in
the databases for the probe V-1.
Q.
And what is the significance of that?
And if you could, explain to the jury what the homozygote is.
A.
Yeah. All of these analyses that I did
really relate to the issue of whether or not you can just multiply
probabilities together. Let me back off
a moment.
The -- you could look at me and
say, 'What is the probability of finding another person like me in the
population?' So what is -- what are my
characteristics? Well, I have gray
hair. So we can go to the population of
all people and say, 'What's the probability of having gray hair?' That is, what proportion of people have gray
hair.
What's another characteristic of
mine? Well, I have wrinkles. So we could go to the population database
and ask, 'What is the probability of somebody having wrinkles?' And then we could make a mathematical leap
and say that the probability of having gray hair and wrinkles is the
probability of having gray hair times the probability of having wrinkles. But, of course, that doesn't work because
wrinkles and gray hair are not independent of each other. In fact, it's rather hard to find somebody
with gray hair who doesn't have wrinkles, so that the two are not independent
pieces of information.
It's not like you flip a coin, you
get a head, and the probability of that's a half. You flip it again, you get a head, and the probability of that's
a half. And so you say, well, the
probability of getting two heads is one-half times one-half, that's a quarter. Well, that works with coins because a coin
has no memory and it's independent of -- every toss is independent of every
other toss.
But with characteristics like gray
hair and wrinkles, they're not independent of each other and you cannot
legitimately multiply the probabilities together, because the probability of
having both gray hair and wrinkles is not much different than the probability
of just having gray hair.
Q.
Okay.
A.
Okay. When you analyze -- going back to
the DNA, now, if that helps any, what I'm about to say -- when you go to the
DNA population databases you expect that most people will have two alleles or
bands or fragments, whatever you want to call them. They have various -- they can be called by various names. But will have two -- I'll say bands -- two
bands at each locus. That is, they'll
have two bands at the locus V-1, and they'll have two bands at the locus
identified by TBQ-7. I mean, I'm sure
you've heard all of that described.
When you go to the GBI's population
database and you look at the population samples, what you find is, particularly
on V-1, that there are a lot of samples that have only one band. Now, in fact, to be precise, the V-1
population database for blacks had 20 percent of the samples -- I think it was
19.9 percent of the samples -- were homozygotes, that is, have only one band,
which is to say the individual got the same size band from each of the
parents. Now, the probability of that
happening by chance is not that high.
You should not have that many homozygotes.
Now, they can occur, though, for
various reasons, and let me just explain this.
It doesn't mean that those samples are truly one-banded. It may be that those samples have two values
that are so close together that on the radiogram they're indistinguishable. That is, they, in a sense, coalesce. They fuse into just one dark spot.
But that finding got me to look at
other characteristics of the database to see whether there was this lack of
independence. And it is clear that
there are statistically significant patterns between the gels in the
database. Let me try to explain that.
The database is made up by taking
twelve different samples, twelve different people, and running them through the
whole DNA process. Then take another
twelve people, put their samples on another gel, another agar gel, and running
them through the whole process. Taking
another twelve people and putting them on a gel, and so forth. So that in the population database the
samples are grouped in sets of twelve, because you could have twelve lanes,
twelve samples, on any one gel.
Well, what I found was that for
some of the probes there actually is a statistically significant difference
between the DNA sizes on one gel and the DNA sizes on another gel. So that if you look at the population
database and you break it into gels, in fact, the gels differ from one another,
that is, the values on the gels. Well,
that makes no sense. I mean, if you
were going to the population and you were randomly sampling people, assigning a
sample number to them, and then running them in groups of twelve, it ought to just
be a hodgepodge, it ought to just be a random mixture, and there should be no
systematic patterns or differences between the gels. But there are.
Q.
Okay. If I posed a hypothetical to you
that if there's testimony before this Court that these samples were gathered
from public health clinics in various places around the state, and if related
family members donated those samples at public health centers, would that
account for the -- for the phenomena you're talking about?
A.
That could do it. Because that would
mean that if people were coming to the public health centers not alone, but,
you know, accompanied by someone else, which, of course, we all know is
frequently what happens --
Q.
You're talking about -- excuse me.
You're talking about like mothers and their children or fathers and
their children?
A.
Yes, or --
MR. SMEAL: Your Honor, I'm going to object to this line
of questioning. There's been absolutely
no evidence in this case and completely speculating as to how people came to public
health centers to get anything.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, we had testimony these were
gathered at public health centers, and I think we can draw the inference that
related family members do attend those public health centers, and pose a hypothetical
to him to explain why these databases reflect a phenomena that can otherwise
not be explained.
MR. SMEAL: Your Honor, that's just not a permissible
inference. A hypothetical has to be
based upon evidence in the case.
THE COURT: Objection is sustained, Mr. Moore.
BY MR. MOORE:
Q.
Have you had occasion to examine the state crime lab's protocols and definition
of what's called a match?
A.
Yes.
Q.
Okay. And do you have any problems with
that?
A.
Yes. There is a really serious problem
for probability calculations. In fact,
the state's definition -- the state lab's definition of a match is such that it
really precludes, prevents, the calculation of the probability of randomly
obtaining matches in the population.
The problem is somewhat complex.
It's going to take me a little while to try to explain it, and I'll do
my best.
There is a definition of a
match. Two samples are said to match if
one is within 4 percent of the other.
I'm sure there's been some testimony to that regard.
Q.
There has been testimony about that.
A.
That is, you get -- you have Sample A, Sample B. If the bands in A and B are within 4 percent of each other,
that's called a match. And, therefore,
you could assume or you might assume that if they're not within 4 percent of
each other, they're said not to match.
That is, that is like flipping a coin, it's either head or tail, it's
either match or not match. And if they
don't match, it's can't be the same person.
You might assume, but that really isn't what's done.
I'm looking at Page 22 of Version 2.4 of the procedures manual,
and at the very bottom of that page it gives an example, and it says, 'In this
case, the conclusion would be an inability to include or exclude the donor of
the known sample as the donor --' I'm sorry, I misread it. Let me do the sentence again. 'In this case, the conclusion would be an
inability to include or exclude the donor of the known sample as the donor of the
unknown sample.' That is to say that
there are not really two categories, match and not match. There is a third category which is referred
to later as 'similar.' That is, they
don't meet the match definition but they're close. They're similar.
So that the way the lab operates is
that if you had, let's say, six probes and the bands matched on four of them
but were similar on the other two, the lab would call that a match. That is to say that there are really three
categories: there is match, similar, and not matched. That is, they're so far apart that clearly they don't match. The problem is there's no definition of what
constitutes similar. How close is
close?
So now you say to me, 'Calculate the probability of getting a
random match in the population,' that is, of just by chance finding somebody
who has gray hair and wrinkles and my age and my height and so forth. But since the definition of a match is
imprecise, I really have to turn the question the other way and ask, 'Well,
what is the probability of not getting a match?' I have the feeling I'm not doing this explicitly enough, so let me
back up just a little and try it a slightly different way.
A person would be called not a match if they clearly do not match
on at least one probe. What the problem
is, is we are never given and the lab has never formulated what is meant by
'clearly do not match.' So if I were to
go to the population database and try to calculate what is the probability of
getting a random event that the laboratory would call a match, I really have to
just speculate as to how close would be close enough so that the lab would call
it similar and would not say they don't match.
In other words, what I'm telling you is that given this definition
of a match and non-match, there is no way to calculate. It's like flipping coins and having the
possibility of, 'Well, it's almost a head.'
Well, the whole probability statistics field is based upon the outcomes
being mutually exclusive and exhaustive, that is, a head is a head, and a tail
is a tail, and there's no ambiguity in between. But there is ambiguity in the way the lab does its work.
Q.
Okay. In all probability calculations
is it true that the validity of your calculations depend on your sample? Your
sample, if it's not done correctly, then none of your calculations are correct?
A.
Oh, that -- that absolutely is correct.
Q.
Okay. And in this particular case, if
the samples were collected from public health clinics from people who simply
volunteered, what assurance do you have that they would be random?
A.
Well, you have no assurance. You
certainly know that the samples are coming from people who walk in the door who
are more likely to be the people who live nearby. I mean, people don't drive 500 miles to come.
The other thing is you don't even have to speculate, because if
you look at the population database -- I did an analysis of just asking the
question, 'Could you predict the size of a fragment in any particular lane from
the sizes of the fragments in the adjacent lanes?' I mean, it's an amazingly simple kind of question. I've got twelve samples lined up, and I ran
an analysis saying, 'If you look at the sample in Lane 3, can you predict it
from the sample in Lane 2 and Lane 4?'
That is, from its neighbors.
And, in fact, for several of the probes, you can. That is, there is a statistically
significant correlation between the sizes of consecutively numbered samples.
Q.
And would that be indicative that the sampling was not random?
A.
Well, it is a test of the hypothesis of whether the samples are
independent. You reject that
hypothesis, so clearly, if they're dependent on each other, if they're
predictable from each other, they are not independent.
Q.
And does that affect the probability calculations?
A.
Yes. It means, in essence, that you cannot
obtain a reliable calculation.
Q.
Okay. In the probe LH-1 here, has it
had any problems?
A.
LH-1 was -- the FBI population database for LH-1 was analyzed by Professor Weir
at North Carolina State University. And
in a publication of those FBI database analyses, he concluded that the FBI was
wise in not using the probe because of the lack of independence between the
bands in the probe and between that probe and the other probes. So there is some history of departure from
independence, some trouble with that particular probe.
Q.
Okay. And do you have an opinion as to
whether or not the database and the computations that are made from it by the
GBI crime lab were valid?
A.
Well, my conclusion is that they're not, that there's another whole wrinkle to
this, and that is that the GBI crime lab computes their probabilities in a way
that is different from the way anyone else does it, that they have this rather
unique method. And the method presumes
that the homozygotes, the single-banded patterns are truly single-banded
patterns, and that is certainly contrary to the consensus in the scientific
community regarding single-banded patterns where they sometimes result from the
second band, the second fragment, simply being too faint to be observed or too close
in value to the first one, as I mentioned before.
In fact, in the probe LH-1 there
are homozygotes but none of the homozygotes occur with bands that are above
4,000 base pairs. That is, the
homozygotes are all with smaller size bands, which again violates
independence. That is, if the samples
were truly independent and the bands within a probe were independent of each
other, you would not get a pattern where single-banded samples were restricted
to only the smaller values. They ought
to occur throughout the whole distribution.
Q.
You testified, I believe, that you're not a population genetics expert; is that
correct?
A.
That's correct.
Q.
If I posed a hypothetical to you that Dr. Choi testified that the results in
this case, the autorads, could not be interpreted and were not of sufficient
quality to be interpreted, would you be willing to give any statistical
analysis of that data?
A.
Yes. I mean, one could then say, well,
what would the probability be with the remaining ones.
Q.
What -- my question is, though, would you be willing, like the crime lab --
crime lab did --
A.
Oh, oh, I see. You're asking me the
other way.
Q.
Yes, sir.
A.
No. I mean, if the six probes did not
generate reliable results in a biochemical sense, then, obviously, there is no
validity to any calculations done based upon those results.
MR. MOORE: Thank you, Dr. Shapiro.
THE COURT: Mr. Smeal?
BY MR. SMEAL:
Q.
Dr. Shapiro, when were you first contacted by the defense in this case?
A.
I don't really know. I mean, like maybe
early summer, late spring. A couple of
months ago. I don't -- I can't --
Q.
More than a couple of months ago, wasn't it, Dr. Shapiro?
A.
Well, if you suggest a time, I'll give you my guess as to whether it's right or
not.
Q.
Well, perhaps you could look at your notes and determine when you were
contacted by the defense. Do you have
anything that would help you in that regard?
A.
No.
Q.
Okay. And what is your -- what is your
fee for appearing in this case?
A.
A hundred a fifty dollars an hour for my time.
Q.
How many hours have you put in so far?
A.
Oh, I don't know. The bulk of the time
has been doing computer analyses this week.
Maybe 20, 30 hours, I don't know.
Q.
Twenty to thirty hours?
A.
I'm guessing.
Q.
You were present at the pretrial hearing in this case on DNA, were you not?
A.
Yes.
Q.
And that was a day-long hearing in which both Dr. Herrin and Mr. Goff
testified?
A.
That's true, and that would be additional time.
Q.
Are you counting that eight hours?
A.
No.
Q.
Are you going to charge for that eight hours?
A.
If it was eight hours, I'll charge for the eight hours. If it was less, I'll charge for less.
Q.
And you didn't testify at that pretrial hearing, did you?
A.
No.
Q.
And you sat there that day and listened to what Dr. Herrin and Mr. Goff had to
say, didn't you?
A.
Yes.
Q.
Okay. And have you also been furnished
a copy of their transcript?
A.
Yes.
Q.
Have you reviewed that for purposes of preparing for today's testimony?
A.
I just looked at parts of it. I did not
re-read the whole transcript.
Q.
And you're aware that the state in this case -- in fact, I believe you
participated in some of these discussions -- the state in this state disclosed
basically the protocols and the scientific reports produced by the crime lab,
didn't it?
A.
Yes.
Q.
You say that hesitatingly. Did they not
produce that information?
A.
Yes. But there's also a lot of
information they didn't produce. But,
yes, they produced that information.
Q.
They produced virtually everything out of Mr. Goff's and Dr. Herrin's case file
relating to the testing of these samples in this case, didn't they?
A.
Yes. But they did not produce all the
information requested on the population databases.
Q.
They furnished you with a computer printout originally of the population
database data, and later on furnished you with a floppy disk of that
information, didn't they?
A.
Yes. But that's -- it's only partly
true. Originally they gave us a hard
copy printout of the Caucasian database, not of the black database. When we -- when I was given the computer
disk, it was lacking, also, the control samples. That is, on each one of the population database samples -- I'm
sorry. On each one of the population
database gels there is a lane of control samples. The values from those control samples were not on the population
database as they are in every other lab that I'm familiar with.
Q.
Okay. You sat there that day during the
pretrial hearing and basically consulted with defense counsel regarding the
state's testimony, didn't you?
A.
Yeah. I was sitting with them, yes, and
we did talk some.
Q.
And what do you estimate your total fee will be in this case? Can you give a rough estimate?
A.
Well, you can now guess as well as I can.
We're talking about thirty, forty hours, we're talking about four to six
thousand dollars.
Q.
Four to six thousand dollars?
A.
If I've done my calculation correctly.
Q.
Okay. And for that fee have you
produced a written report of your analysis in this case?
A.
No.
Q.
And why not?
A.
Well, I did the bulk of the work this week, as I told you before, and I was not
asked to, nor was there any reason to.
Q.
Okay. So you did the bulk of your work
this week after the trial of this case had begun?
A.
Yeah. Well, it was irrelevant to me
that the trial had begun. You know, I
did my statistical analysis this week.
I knew I would not be called till last.
Q.
Do you recall approximately a month ago that we had a telephone conversation,
you and myself?
A.
You called me, yes.
Q.
And we had a discussion about whether you had produced any information or
report in this case?
A.
That's right. And I told you I hadn't.
Q.
And you had not at that time?
A.
That's right. I still haven't.
Q.
Do you have with you today a written report or analysis of what you have
testified to about the database?
A.
No. But I'd be perfectly happy to give
you the computer printouts of all the analyses I did. They're quite extensive.
Q.
My point is, Dr. Shapiro, you at no time had handed Dr. Herrin a report and
said, 'This is what I have found with respect to your database,' have you?
A.
That is extraordinarily disingenuous.
Dr. Herrin --
Q.
It's a simple question, Dr. Shapiro.
A.
Well, no, I have not. I got the
database at the end of July, knew that I would be busy most of August, was on
vacation the week before last, so obviously couldn't do it then, and my report
would be even more interesting if I had the values for the control samples,
which Dr. Herrin refuses to give.
Q.
Have you -- would it be fair to say that you usually testify for the defense in
DNA criminal cases?
A.
Yes, that is true.
Q.
Okay. Have you ever finished --
furnished a written report prior to trial to the state for its review?
A.
Oh, absolutely.
Q.
You have?
A.
Yeah.
Q.
Okay. Where have you done that?
A.
I've done it in Mississippi cases. I've
done it in, I believe, at least one Alabama case. I've done it --
Q.
I'm sorry, I didn't hear that last reply.
A.
I'm sorry. At least one Alabama
case. I've done it in at least one
South Carolina case. I mean, as you
know, it varies with the state rules --
Q.
Right.
A.
-- of criminal procedure whether reports are required or not.
Q.
Have you -- have you testified before with respect to the GBI's DNA analyses,
that is the state of Georgia?
A.
Not with -- no, not with respect to the population database. I -- there's one other case in which I was
provided a copy of the database, but it has not gone to trial, and I have not
testified.
Q.
Okay. The fact of the matter is, Dr.
Shapiro, that today is the first time in this case that you have offered any
opinion as to the validity of the DNA results; isn't that true?
A.
For the GBI -- the GBI database?
Q.
Yes.
A.
Yes. That is true.
Q.
How many labs are currently doing forensic DNA analyses in the United States;
do you know?
A.
Oh, a large number. I mean --
Q.
If Dr. Herrin --
A.
-- it's more than one per state, on the average.
Q.
If Dr. Herrin said it was approximately 90 public and private laboratories,
does that sound about correct?
A.
I'd believe it. I don't know whether
it's correct or not, but it's -- I mean, it's believable.
Q.
And you said that -- have you surveyed match criteria that are used or utilized
in the forensic laboratories across the United States?
A.
Well, I haven't surveyed them, but I know what they are.
Q.
Okay. And it's a 4 percent match
criteria that you testified to that the GBI utilizes; is that correct?
A.
That's what their protocol says, yes.
Well, 4 percent for a match and some unknown percent for similar and
therefore may match.
Q.
Okay. And what they basically do is if
they have two bands like this [indicating], and there's a certain number of
base pairs here, they will add 4 percent, and to declare a match, this band and
this band have to be within 4 percent; is that correct?
A.
That is correct.
Q.
And if Dr. Herrin testified that a band that has that many base pairs would be
declared not to be a match, is that your understanding of their protocol?
A.
That's not true. I will give you that
exact example on the protocol on Page 22.
Q.
Okay. What you --
A.
It says, 'If the unknown sizes had been calculated to be 6175 base pairs and
2620 base pairs, the unknown sample would be declared similar to the known
sample. That -- in that example he's
using -- if I may?
Q.
Go ahead.
A.
[Witness steps to board]
A.
The example he's using in that instance is where instead of 1000 it's 6400, and
the matching window goes to 6656 or down to sixty -- if there had been a
smaller band, that's 61 -- I think it's 74.
Let's see, that's two hundred and -- well, I'm not doing the
calculations quite right. But anyway,
the point is, his example is where your -- oh, I see what I've done wrong. Excuse me.
76. His example is where you'd
be down to the very next one. You'd be
off by one. Your example is where
you're off by one. He would not call
that a non-match. He would call that
similar and would not exclude that individual as a potential donor. And that's what's wrong with the procedure.
Q.
Okay. Have you reviewed the sizings
that were actually utilized in this case --
A.
Yes.
Q.
-- in the determination of a match?
A.
Yes.
Q.
And did they rely upon any similars in that determination?
A.
No, but that's irrelevant to calculating the probabilities. When I ask what is the probability of
throwing a seven at a casino, it's a probability that we can calculate in
advance, given the population. It
doesn't matter that you particularly threw a five and a two. I mean, a four and a three would have done,
and therefore is included in the calculation of the probability.
Q.
Okay. Dr. Shapiro, my question is a
simple one. With respect to the matches
that were declared in this case, were they all -- were all the bands within 4
percent?
A.
In this case, the measurements that were obtained were all within the match
window, yes.
Q.
Okay.
A.
But that is irrelevant to calculating the probability of a coincidental match.
Q.
And what you're referring to there is what's called the product rule; is that
correct?
A.
Well, that's part of the calculation, yes.
Q.
That's part of it. Okay. And are you -- are you telling this jury
that the product rule is not generally accepted in the United States today for
forensic DNA analyses?
A.
I don't think I ever said that. To use
the product rule you certainly have to demonstrate that the values you're
multiplying together are independent of each other. The consensus in the scientific community today is that there is
insufficient evidence that that is true; and, therefore, the National Research
Council has recommended that one never use probabilities less than .1, because
you can never be sure that you actually have independence and can use the
product rule.
Q.
When you gave an example before, Dr. Shapiro, about gray haired people often
having wrinkles, you have, perhaps intentionally, I don't know, but you have
picked an example that concerns physical characteristics which are in fact
often related; isn't that correct?
A.
Well, yes. If I'm -- if I'm speaking to
somebody and I'm trying to give them an example of a phenomenon, I certainly
don't deliberately select the most obscure, hardest to understand example.
Q.
Right.
A.
That is true.
Q.
Now, isn't it true that the DNA testing that was done in this case and is done
generally with regard to RFLP procedures is looking for non-coding DNA
sequences, that is to say, is looking for junk DNA which has never been related
to any physical characteristics?
A.
It is true that those DNA locations are -- have unknown function. I don't think we want to get into a
discussion whether the world has junk in it in the sense of, you know, why were
we created with this meaningless DNA. I
mean, it must be doing something there, but that's just a matter of faith. But it is true, we don't know what it does.
Q.
Right. And the whole point is is that
the DNA analyses have been intentionally geared towards DNA which does not
relate to physical characteristics; isn't that true? That's why they choose those areas of DNA?
A.
Yes. But what you're saying is don't
relate to any known characteristics and -- but that doesn't mean that they're
independent of each other. All it means
is that we don't know whether they're independent of each other.
Q.
And the probes that were utilized in this case, and which are utilized
generally in RFLP procedures, basically target different chromosomes, don't
they?
A.
That is correct. That is an attempt
that's made in order to try to avoid the most obvious causes of lack of
independence.
Q.
Okay. Because basically gene sequences
which are close together within the same chromosome often do end up being
inherited together; isn't that true?
A.
That is what is claimed, yes.
Q.
Now, you mentioned -- you mentioned the NRC and that's the report; is it not?
A.
That is the report of the National Research Council, yes.
Q.
And the NRC, which was a subcommittee, so to speak, of the National Academy of
Sciences back in 1992, generated this report which discussed various issues
regarding DNA analysis; is that a fair statement?
A.
That's correct. Actually, it discusses
quantitative statistical issues more than anything else.
Q.
And would you say that this is a fairly good discussion of the issues relating
to DNA analyses?
A.
Well, it's the only committee report anyone has, so in that sense, yes, it's
probably the best we have.
Q.
It's fairly well documented and footnoted, would you agree?
A.
Well, as for its time, yes.
Q.
It was 1992; correct?
A.
Yes. But there's some publication life,
but okay. But this is 1995, I mean --
Q.
I understand that.
A.
And the whole -- the whole issue, the whole technique as applied to forensic
work only goes back to around 18 -- I'm sorry -- 1989. So when they're looking at the literature,
they really are only looking at about a three-year period of time of
publication.
Q.
There's a chapter on statistical interpretation of DNA typing; is that correct?
A.
Yes.
Q.
Is your statistical analysis of the FBI's database cited in this book?
A.
No. My analysis came out in September
of '91. I don't think there's anything
cited that recently, I mean, in the book that is that close to the publication.
Q.
Have you published any other papers or studies that have been peer reviewed
which suggest that there's a problem with the product rule in DNA analyses?
A.
No. I've never --
Q.
And, in fact, isn't it true, Dr. Shapiro --
MR. MOORE: Your Honor, I'm going to object. He's trying to explain his answer, and Mr.
Smeal keeps interrupting him.
MR. SMEAL: I don't think I keep interrupting, Your
Honor.
THE COURT: Let him explain. Go ahead.
BY MR. SMEAL:
A.
[Continuing] Okay. Actually, when I found the problem in the
GBI database with respect to the relationship of adjoining lanes to the
individual lane, I actually went back -- in fact, I've got the printouts here
-- and did the same analysis on the FBI database to see whether it was there. I mean, I'd never tried that before. And it does not occur in the FBI database.
Q.
Dr. Shapiro, the twelve duplicates that you say you found in the database, do
you have a list of those with you today?
A.
Yes. I can give you a printout of that
database, and I constructed another column, which is entitled 'duplicate
samples,' and for the samples that are not duplicates, they're marked by just
dots, that is, meaning missing. For the
samples that are duplicates, they're marked by the Numeral I, and they begin
with Sample 5451. That's just a
numbering, it's not really the five-thousand-four-hundred-and-fifty-first
sample, because the numbering starts at 5000, actually. But it starts with Sample 5451, and it goes
through Sample 5462. And there is one
Sample 5455 which actually occurs three times.
I'm sorry. Yeah, three
times. Four times.
Q.
May I see that document?
A.
Yeah, sure. I also printed out the
original -- if you want this -- the original version of that database in text
form. Actually, Dr. Herrin had given it
to me in WordPerfect 4.2. And I have
marked on here the two places where the repetitions occurred, if you want. I mean, you can actually see it here.
Q.
And you furnished -- or you created these documents within the last week or so?
A.
Yes. Well, it was in the last week.
Q.
And this first column here that you have labeled sequentially with 5000
numbers, you're saying that 5451 through 5462 --
A.
Are repeated, yes.
Q.
-- are duplicates?
A.
Yes. And you can see it in the text
form where I actually have found them and located them on the list.
Q.
Do you have any problem having these marked and made part of the record in this
case?
A.
No. No, I mean, I brought them because
--
MR. SMEAL: I'd asked that these be marked now as
State's Exhibits.
[State's Exhibits 156 and 157 were
marked for identification by the court reporter.]
BY MR. SMEAL:
Q.
Dr. Shapiro, one of the issues that you haven't addressed today squarely in
your testimony, but I think you may have touched upon it, is the question of allele
frequencies in subpopulation groups; is that correct?
A.
Yeah.
Q.
That's an issue in DNA analysis?
A.
Yes.
Q.
And that's one of the issues that was discussed by the National Research
Council in their book; is that correct?
A.
Yes. The question of lack of
independence can be looked at in two ways.
You either can look at it as a population geneticist would and say,
well, out there in the population, are there differences between subgroups of people,
either geographically or ethnically or racially or what have you. Or you can do it simply statistically and
say, well, I don't care where the data came from; when I analyzed the data
numerically, do I get patterns; do I get non-independence. And, of course, if one is true, the other is
going to be true, but you can view it either way. And my field is the second one of those, looking at just the
numerical patterns.
Q.
Isn't it true, Dr. Shapiro, that the NRC in this book, they set forth a concept
known as the ceiling principle, which really provides an ultra-conservative way
to arrive at a probability calculation in a DNA analysis? Is that true?
A.
Well, your question has two parts. They
do propose a ceiling principle. I do
not agree that it's an ultra-conservative way.
Q. Okay. You don't agree
that the consensus of the scientific community is that that is an
ultra-conservative approach to arrive at probability calculations?
A.
No, I don't agree with that. The
forensic laboratories, particularly the FBI, has certainly argued that it is,
but I don't think there's any consensus within the scientific community that
it's ultra-conservative.
Q.
Okay. And do you know whether the crime
lab in this case did apply the ceiling principle to arrive at an alternative
calculation in this case, based on their data?
A.
They did do a set of calculations that is represented as applying the ceiling
principle, yes.
Q.
And do you know what calculation they arrived at?
A.
Using all six probes and ignoring the probability of error and ignoring the probabilities
associated with picking and choosing bands to match -- that is, if there are
six bands in a lane, deciding to use these two and not the other four -- they
come up with a probability that is in the white -- I'm sorry. For Sample Number 2, Item 2, 2.78 times 10
to the seventh power. And for Item 15,
3.53 times 10 to the seventh power.
Q.
Okay. What is 10 to the seventh power?
A.
That would be followed by seven zeros, so that would be like 20 million. Or actually, I'm sorry, 200 million.
Q.
Two hundred million?
A.
Yeah. It's the like whole population of
the United States. It's a pretty
extreme number, if it were accurate.
Q.
Now, Dr. Shapiro, the -- getting back to the way that the samples are arrived
at for the population database, which is basically from blood samples that come
from different sources, if we can direct our attention to that, my DNA makeup,
for example, remains the same throughout my life, does it not?
A.
That certainly is the expectation, yes.
Q.
It doesn't matter where I move to. It
doesn't matter upon my geographical location?
A.
That is correct.
Q.
And it also doesn't make any difference whether I wish to volunteer my blood
sample or have my blood sample taken involuntarily. That has nothing to do with the genetic makeup of the blood
sample?
A.
Well, that we don't know.
Q.
So you're saying it might?
A.
Well, I mean, we don't know. I mean, is
there a gene for volunteerism or something?
I mean, you know, you're just speculating.
Q.
The GBI database comes from a number of different locations, including blood
samples gathered in DeKalb County; is that correct?
A.
It's largely blood samples collected in a location in DeKalb County.
Q.
And what they are looking for in those samples are basically sequences of DNA that,
to our knowledge, have no known function; isn't that correct?
A.
Well, that's what they're looking for, but that may not be the way to find
it. You -- let me point out to you
quantitatively very simple facts. If
you look at this database, for example, I'll just take the first numbers
given. For MS-1 there are 507
blacks. There are 287 whites. Well, that is not the population distribution
of DeKalb County. I think it probably
is a fairly good measure of the population census data in that particular area
of DeKalb County, but none of this has anything to do with whether the
particular people that come in are independent of each other or do they come in
as related groups?
There is in the National Research Council report a whole section
regarding related individuals, because if you were talking about related
individuals, then the calculations of probabilities is a whole different
question; that is, cannot be done in the same method that you use to calculate
the probabilities given a random or even unsystematic sample from a population.
Q.
Have you yourself done any studies on the DeKalb County population?
A.
Well, I know what the census data look like.
Yes, I've looked at DeKalb County census data, census track by census
track. Not for this case, but I've done
it in other cases.
Q.
Dr. Shapiro, you basically, though, would concede that in this case the GBI did
stay within the 4 percent match criteria in making its calculation in this
case; is that correct?
A.
Well, no, I don't -- I'm not willing to concede that, because what you also
must consider in this case is that there was the qualitative judgment of which
bands to apply the 4 percent rule to.
That is, that you look at an autorad, you see that there are six bands
in a lane, two look to be close to the bands in another lane, and you say,
well, are those two within 4 percent of those two? But how about the other four?
I mean, there is a qualitative decision as to which bands to apply the
rule to.
Q.
Well, Dr. Choi, who was -- testified a few moments ago as a DNA expert for the
defense, had no problem with a match criteria of 4 percent and said that that
was, in fact, generally accepted in the scientific community. So you dispute his testimony?
A.
Oh, no, not at all. Four percent is
within the usual range. It's smaller
than is used by the FBI; it's bigger than is used by Cellmark. I mean, the 4 percent as a number is within
the usual range. The question is how
the 4 percent is applied. That is, do
you qualitatively or subjectively decide what bands to apply it to? Do you also have another rule that says that
close is all right, too? We'll call that similar, not exclude the person, and
go on. That's not usual.
Q.
If he also testified that, based upon the 30 cases that he has reviewed, that
he believes the GBI's procedures are reliable and generally produce excellent
and reliable results, are you disputing that?
A.
I presume that Dr. Choi is talking about the biochemical procedures that are
used to generate the autorads, and I've not said anything about that. I'm talking about the quantitative
procedures that are used to include or exclude people, and that are used to do
population database calculations. So
I'm sure that he and I are not in disagreement. We're talking about two different issues.
Q.
Are you saying that the GBI's match criteria and their method of probability
calculations are not generally accepted in the scientific community?
A.
Yes. I am saying that.
Q.
And are you saying that they are unique to that extent amongst the various
forensic laboratories in the United States?
A.
The method used to do their GBI calculations are unique, yes. They are not the way other people do
it. They are looking at the two-banded
pattern at each probe, and they're assuming that one-banded patterns are truly
one-banded. No one else does that. That is unique and that is not generally
accepted. In fact, that is contrary to
the National Research Council report that says that when you get a
single-banded pattern you cannot conclude that it is truly a homozygote. You must consider that it is possibly a
heterozygote, a two-band pattern for which one of the bands simply was not
detected.
Q.
Okay. And this finding that you have
made in this case and your review of the GBI's procedures, have you -- have you
published that anywhere or subjected that to scientific criticism?
A.
Not within the last week, I mean, if you -- if you think about what you've just
asked me. I did it this week, so
obviously I have not --
Q.
All right.
A.
-- shown it to other people for their consideration or publication.
Q.
And you did not bring it to the attention of the GBI?
A.
This week? That is true, I have not.
Q.
Getting back to your article, your statistical analysis of the FBI database,
you must have been interested in how that article was received, I assume. Were you?
A.
Yes.
Q.
Okay. And were there any responses or
criticisms of your article?
A.
Well, there were responses by two people.
One is the head of the English forensic lab. That is, I guess, the counterpart to the FBI. And the other was some people from what I
think it the Italian counterpart to the lab.
Q.
Well, the response by -- that you referred to by the English lab was by an Ian
Evett; is that correct?
A.
That's correct.
Q.
Okay. And he was fairly critical of
your article; was he not?
A.
I don't think that's true. His response
is in two parts. The first part is that
he claims that he found the same result first, so he could hardly be critical
of the result since he's claiming ownership, if you wish. The second part is that he concludes that it
is trivial and unimportant, this finding that he says he and I both found. So in that sense, he disagrees. That is, he thinks it's unimportant, but he
certainly does not say it's incorrect.
In fact, as I say, he claims that he found it.
Q.
You basically make four points in your article; is that correct?
A.
No, that's not correct. The last
paragraph has four points regarding independence, but the other parts of the article
in the paper also deal with the difference between the technicians, which, by
the way, is never addressed in his response.
Q.
So when he says, quote, Shapiro's points one to four are specious and will
create unnecessary fears in the forensic science community, you would not
regard that as criticism?
A.
Yeah. I said that his response is in
two parts. And in the first part he
agrees with me, in the second part he disagrees with me, and, clearly, that's
the part in which he disagrees with me.
He's just saying, 'Well, yeah, but it really doesn't matter.'
Q.
You're referring to when he says that the findings that you make, the
consequences within a forensic context are almost trivial?
A.
Yeah, that's what I just said. In fact,
I think his title is something about trivial errors.
Q.
Bruce Bedoli also responded to your article, did he not?
A.
Not that I know.
MR. SMEAL: I asked this be
marked as a State's Exhibit.
[State's Exhibit 158 was marked for identification by the court
reporter.]
THE COURT: What number is
that, Mr. Smeal?
MR. SMEAL: 158.
BY MR. SMEAL:
Q.
I'm showing you what's been marked as State's Exhibit 158. Can you identify that article?
A.
I have never seen this. In fact, I
presume this was never published anywhere.
It's a typewritten -- I've never seen it.
Q.
You've never seen this analysis of your article?
A.
No. As I just said, it appears to have
never been published.
Q.
Are you aware of whether David Dower, a research scientist with the National
Institute of Standards and Technology, responded to your article?
A.
I've never seen that, either.
MR. SMEAL: I ask this be
marked as a State's Exhibit.
[State's Exhibit 159 was marked for identification by the court
reporter.]
BY MR. SMEAL:
Q.
I'm showing you what's been marked as State's Exhibit 159. Can you identify that article?
A.
I've never seen this. It appears to
have never been published. I would like
copies of these unpublished things, if I might.
Q.
You've never seen that before?
A.
No.
Q.
Were you aware that there had been criticism from a scientist at the National
Institute of Standards and Technology regarding your article?
A.
Not till this morning. [Pause] If I --
Q.
There's no question before you, Doctor.
MR. SMEAL: I don't have
any further questions.
THE COURT: Redirect?
MR. MOORE: Just one
question.
REDIRECT
EXAMINATION
BY MR. MOORE:
Q.
Dr. Shapiro, is it true that the Georgia state crime lab will not allow public access
to their databases and their records for other scientists to review them for
peer review?
A.
That is correct. And, in fact, in this
case, when I was given the database, it was with the understanding that it
would not be copied and that it would be returned to them. I assumed that by not copying that didn't
mean I couldn't analyze it on the computer; and, of course, if you analyze on a
computer you've got a copy, in a sense.
But, no, I will give this back, and I will give back all these pages of
analyses, and when the next case arises we'll start all over again and have to
repeat all of the work because, in fact, the GBI will not say this is something
for general scientific review like everything else in science.
MR. MOORE: Thank you, Dr. Shapiro.
THE COURT: Recross?
RECROSS
EXAMINATION
BY MR. SMEAL:
Q.
Didn't Dr. Herrin provide you with a list of articles and empirical data and
formulas and equations that formed the basis of the GBI crime lab's DNA
analyses?
A.
Not with respect to the population database.
When we're talking about data, there is no basis superior to the data.
Q.
Well, there are the equations they use.
Weren't those provided to you?
A.
No. We're talking about databases that
are obtained by measuring samples. I
mean, to tell me how the bio-image computer works in translating distance into
molecular weight doesn't tell me what the values are.
Q.
Does it surprise you, Dr. Shapiro, that a state agency which is charged with
criminal investigation of many -- of a confidential nature regarding various
financial investigations, murders, et cetera, would want to keep their
information confidential?
A.
It not only surprises me, I must tell you I know of no other state in which the
DNA database is not public information and which has not been provided without
any provision of confidentiality. There
is nothing confidential about it. It's
just a set of numbers of unidentified people.
Q.
You're saying that the GBI's population database has not been available to
scientists to review in any other form?
A.
They have released to -- they have made their own publications or releases of
summaries that they choose to release.
They have not provided to anyone in a case the unfettered use and
analysis of the database, and they are the only laboratory that I have ever had
contact with in the criminal cases that has done that. You cannot say that something is accepted in
the general scientific community if you refuse to give the raw data to the
general scientific community.
Q.
Are you aware of any of the publications by Dr. George Herrin?
A.
I'm aware that there are some, yes.
Q.
Okay. He has published, I believe, he
said between twelve and fifteen articles relating to DNA analysis?
A.
Yeah. How many relating to the GBI
database?
Q.
Are you saying that his articles have not included data from the GBI database?
A.
They have not included the raw data, that is correct.
MR. SMEAL: I have no further questions.
THE COURT: Anything else, Mr. Moore?
MR. MOORE: Your Honor, I have no further questions. I would ask that Dr. Shapiro remain on
telephone call if we need him back.
THE COURT: You'll remain on call. You can come down.
THE WITNESS: Thank you, sir.
[The witness stepped down from the
stand.]
THE COURT: Would you approach the bench, please?
[Counsel approached and a
conference was held at the bench, as follows.]
THE COURT: You've got one witness left?
MR. MOORE: Mr. Chapel's going to testify, Your Honor,
and I would request some additional time.
We met with him last night till about ten o'clock, but I would request
the Court give us an additional half an hour or so at lunch to meet with him
since he can't go to lunch with us.
Normally, we'd go to lunch with our client and discuss it over lunch,
but he can't do that under the circumstances.
THE COURT: How about if we --
MS. ROGAN: Also, we have to go out today. It's Saturday.
MR. MOORE: Yes.
Today's the day when the cafeteria may not be able to accommodate us
here.
THE COURT: Okay.
How about let's -- well, it's almost 12:15. How about 1:30?
MR. PORTER: I'm just kind of here.
MR. MOORE: Your Honor, that will be our last witness
and we're going to finish up today. I'd
request you give us till -- like an hour an a half instead of an hour and fifteen
--
THE COURT: One forty-five? All right. We'll take
till one forty-five. Okay?
MR. MOORE: Thank you, Your Honor.
THE COURT: All right.
[Bench conference concluded]
THE COURT: Ready to recess for lunch? We're going to take a little bit longer today. There are some other matters and issues that
won't require your attendance, so we will recommence at 1:45.
I remind you that you've heard a
good portion of the case presented, but I remind you again that you've not
heard it all and that you ought to continue to keep an open mind until such
time as you see and hear all the case presented. There ought not to be any discussions amongst yourselves or with
anybody else, or allow anybody else to discuss the case with you or in your
presence. Just wait, look and listen
until all the case has been presented and you're in the jury room with your
fellow jurors to make up your own mind about the case and commence your
deliberations and discussions.
If you'll leave your pens, pads,
notes in your seats, they'll be waiting on you when you return. I'll ask you to go with the bailiff at this
time.
[The jurors were excused for the
lunch recess.]
THE COURT: Anything else at this point, Mr. Porter?
MR. PORTER: No.
Nothing from the state, Your Honor.
THE COURT: Mr. Moore?
MR. MOORE: Nothing from the defense, your Honor.
THE COURT: We'll be in recess till 1:45.
[Lunch recess]
-
-
-
-
-
-
6051
AFTERNOON
SESSION
[Proceedings resumed with the jury
not present.]
THE COURT: Would you approach the bench, please?
[Counsel approached and a
conference was held at the bench, as follows.]
THE COURT: I've got another problem here. I got a note after the jury had left when I
was on my way back in chambers that says, 'I need to talk to Judge Bishop
concerning a very biased remark made to me concerning the case.' And this is one of the jurors.
I don't know what was said. I don't know who said it or when or what the
context was. But what I propose doing
is putting everybody out and shutting everything down, and let's go in closed
session, bring that juror in, and inquire what it was, who it was, in the
presence of who else, and then just go from there and see where we are.
Have you got any request or any
suggestions, Mr. Porter?
MR. PORTER: I think that's the only procedure we can do
at this time.
THE COURT: Mr. Moore?
MR. MOORE: I agree, Your Honor. One other thing, Your Honor. We've discussed with the deputies when Mike testifies he's going to come down and
identify some exhibits and maps in front of the jury. Sergeant Parr says he doesn't have any problem with that.
Sergeant Parr, could you step over
here for a moment?
I've advised him about it and
everything.
THE COURT: Okay.
MR. MOORE: I was telling the Judge that I told you that
we were going to ask Mike to come off the stand and identify a map and some
exhibits and that y'all knew about it and you didn't have any problem with it.
SERGEANT PARR: Okay.
THE COURT: Okay.
MR. MOORE: I just wanted to make sure everybody knew it
and everybody was on board.
THE COURT: That will be fine. Well, we'll just go in closed session and sort this other matter
out and proceed on.
[Bench conference concluded]
THE COURT: We have a jury matter we're going to take
up. We're going to go in closed
session. We're going to shut the
cameras down and sound off, and we're going to clear the courtroom except for
the parties and attorneys, and I'll ask everybody to step outside now except
for those persons.
[All audience members exited the courtroom.]
THE COURT: Is there a deputy here who could step in the
media room or anybody outside who could check to make sure the audio is off?
[Pause]
DEPUTY SOSEBEE: Judge, everything is off.
THE COURT: All right.
Thank you.
CLOSED
HEARING - JURY MATTER
THE COURT: Ask Ms. McAfee to come in, please.
[The juror was called to the
courtroom.]
THE COURT: If you'll just be seated in the jury box,
that will be fine. One of those seats
will be fine.
JUROR MCAFEE: Okay.
THE COURT: I don't mean to focus attention on you unduly
or bring you in to embarrass you or anything of that sort of thing, but I'd
received your note and I wanted to inquire into it in the presence of the
parties who have an interest it in and who are entitled to be present when
inquiring into it.
And the note, as I read it, is as
follows: 'I need to talk to Judge
Bishop concerning a very biased remark made to me concerning the case. Thanks, Daisy McAfee.'
And you are Daisy McAfee; right?
JUROR MCAFEE: That's right.
THE COURT: All right.
Ms. McAfee, would you tell me what the remark was?
JUROR MCAFEE: Well, it was a remark made that I didn't
think should be made to me, and I don't know if anybody else heard it, but the
remark was, 'I think the prosecution is railroading Chapel and has all along just
because of one car that drove by and identified him.'
THE COURT: And who made that remark to you?
JUROR MCAFEE: That was Mr. Jim -- I'm not sure what his
last name is. He's the only one in
there named Jim. I'm not sure what his
last name is.
THE COURT: Is he younger, older?
JUROR MCAFEE: Middle-age gentleman, gray hair.
THE COURT: I don't have my list.
JUROR MCAFEE: I'm not sure what his last name is. I only know people by their first names.
THE COURT: And what was the remark, as best you recall
it?
JUROR MCAFEE: What was it?
THE COURT: Yes, ma'am.
What was the remark?
JUROR MCAFEE: He commented that he thought Mr. Chapel was
being railroaded by the prosecution because of a car that drove by and
identified him. And he had made a
similar remark when we first convened, and I tried to not pay any attention to
it. But then when he made this one, I
thought, I don't want to hear these things.
You know, I'm trying to keep an open mind and it kind of bothers me, so
that's why I thought maybe you should know.
I mean, I don't want to get anybody in trouble.
THE COURT: Well, you're not. This is just a matter of --
JUROR MCAFEE: You know, but it bothers me, so I have to
tell you about it.
THE COURT: Yes, ma'am.
Yes, ma'am. I understand. You should.
You did the right thing, so you shouldn't be concerned about that. And that is Jim -- you don't know his last
name?
JUROR MCAFEE: I'm not sure of his last name, no.
THE COURT: Okay.
When did that -- when was that -- when was --
JUROR MCAFEE: This morning, the first break, in the jury
room.
THE COURT: Okay.
Has he made any other comment to you in that regard?
JUROR MCAFEE: He made a general comment when we first
convened about -- around the same -- and I thought -- I know I thought to
myself, how can he even surmise anything like that because --
THE COURT: Was that prior to the evidence, prior to
starting the trial of the case, the evidence, or was it after?
JUROR MCAFEE: I think it had just barely started.
THE COURT: Had opening statements been made, do you
know?
JUROR MCAFEE: Oh, gee.
I don't -- I don't know. It was
like we were sequestered maybe a couple of days when the remark was made. It wasn't very long in the case.
THE COURT: Okay.
Okay. It was early in the trial?
JUROR MCAFEE: Yeah.
THE COURT: Was that made -- when was that made? Where was the comment made?
JUROR MCAFEE: This last time, just this morning in the
jury room. The other time, I'm not
really sure whether we were standing in the cafeteria or some -- you know, somewhere. I can't say where that was.
THE COURT: Was that in the presence of the other
jurors? Was anybody else -- did he make
the remark to you or just generally or to --
JUROR MCAFEE: This one this morning was made right in my
ear, almost whispered, you know, like he didn't want anybody else to hear
it. The other one was kind of a general
statement, but I'm not really sure who heard it or if anybody else heard it.
THE COURT: Was that remark being made to you or the
other -- both remarks being made to you, does that impact on your ability, do
you think, to fairly and impartially hear the evidence and take the law as
given you by the Court and apply the law to the facts as you find them to be
and reach a verdict that speaks the truth, whatever that is?
JUROR MCAFEE: No, sir, it doesn't. I -- that's why I don't like the remark
being made because I'm trying to keep an open mind and listen to everything and
absorb everything, and then I'll sort it out at the proper time. But I -- I just didn't appreciate the
remarks -- the remark being made. You
know, he should keep things like that to himself.
THE COURT: All right.
And that was Jim. You don't know
his last --
JUROR MCAFEE: No, sir.
I'm not sure of his last name.
THE COURT: Can you describe him? Can you describe his appearance?
JUROR MCAFEE: He's gray haired. He wears glasses. He's
the only one in our group named Jim.
THE COURT: He's not the one with the --
JUROR MCAFEE: He's probably 45, 50 years old.
THE COURT: Does he have a beard?
JUROR MCAFEE: No beard.
A mustache.
THE COURT: Okay.
All right.
MR. PORTER: Your Honor, that's Mr. Knowlson.
THE BAILIFF, MR. ALLEN: Where does he sit?
JUROR MCAFEE: Where does he sit?
THE BAILIFF, MR. ALLEN: Uh-huh.
JUROR MCAFEE: I think he sits down on the end right
there.
THE COURT: All right.
Let's -- all right. Mr.
Knowlson? Does that ring a bell?
JUROR MCAFEE: Who?
THE COURT: Knowlson?
K-n-o-w-l --
JUROR MCAFEE: I'm not real sure what his last name
is. I don't think I've even heard it.
MR. PORTER: Your Honor, the Court might elicit a
clothing description.
THE COURT: Yeah.
What's he wearing today?
JUROR MCAFEE: Well, today he has on a rather bright shirt
with, I think, like a yellow stripe, wide stripes, red, green. I know we were teasing him this morning he
looked like a traffic light that had exploded or something.
THE COURT: Okay.
MR. PORTER: I believe that's Mr. Knowlson.
THE COURT: All right.
Would you approach the bench, please.
[Counsel approached and a
conference was held at the bench, as follows.]
THE COURT: Any other question you want me to pose to
her?
MR. PORTER: Not to Ms. McAfee, Your Honor, but I'd like
to talk to Mr. Knowlson.
THE COURT: Well, we'll go -- Mr. Moore, any question of
this juror at this point?
MR. MOORE: I don't know of any, Your Honor.
THE COURT: Okay.
I'm going to send her back in with directions not to discuss what's
transpired here, and we'll just take it up for a minute and then we'll send for
Mr. Knowlson. Okay.
[Bench conference concluded]
THE COURT: Ms. McAfee, I appreciate you providing this
information to us. I'm going to ask Mr.
Allen to take you back in the jury room with the other jurors with the instruction
from the Court that you should not discuss at this point with any other jurors
what you have said, or what you have been asked, or what you have been told, or
anything else with respect to you being in here.
JUROR MCAFEE: Is it all right if I just say I had a phone
call or something?
THE COURT: Just say nothing. It's nobody else's business.
JUROR MCAFEE: Okay.
THE COURT: Okay?
JUROR MCAFEE: I mean, I didn't want to get anybody in
trouble, but I just don't feel comfortable hearing something like that.
THE COURT: You're doing the right thing.
JUROR MCAFEE: I hope so.
THE COURT: So don't be concerned. But just -- there shouldn't be any
discussion with anybody else --
JUROR MCAFEE: No.
Oh, no. Don't worry about that.
THE COURT: -- as to what's transpired, okay? Mr. Allen, if you'll take Ms. McAfee back to
the jury room, please.
JUROR MCAFEE: Thank you.
THE COURT: Thank you.
[The juror exited the courtroom.]
THE COURT: I forgot my jury list. Let's pause just a moment. Let me pull my jury list of names and all
that.
[Pause in proceedings]
THE COURT: It would appear to me -- if it's Mr.
Knowlson, that would be James C. Knowlson who was the sixth juror seated. We have a J. K. Edwards. I don't know what his name is. Apparently that's not him.
MS. ROGAN: He's a younger fellow.
MR. PORTER: And wears -- he wears glasses, but he has
blond hair, Your Honor, and does not have a mustache.
THE COURT: What do you want me to inquire of Mr.
Knowlson? Mr. Porter?
MR. PORTER: Your Honor, the state would request the Court
inquire if he's made any statements about his opinion of the case, and whether
or not he's communicated those to any juror, to determine whether or not -- I
think Ms. McAfee is credible, and this is a matter of deep concern to the
state.
THE COURT: Mr. Moore?
MR. MOORE: Well, Your Honor, of course the Court's
going to inquire about what he did and everything, but we'd ask the Court to
inquire about the context. Was it
something that was just an inadvertent slip of the tongue, was it something
that he was trying to influence another juror, and whether or not he can be
fair and impartial if it was.
MR. PORTER: Your Honor, I don't believe the motivations
are really in question here. It's the
question of whether or not he has followed the instructions of the Court in two
things: number one, reaching an opinion about the case; and, number two,
communicating that opinion to other jurors, which is the proper time at the
deliberation, as Ms. McAfee said. And
if he is talking, I think the Court can presume certain intents.
THE COURT: Well, we'll see what Mr. Knowlson has to
say. Ask for Mr. Knowlson, Jim
Knowlson, K-n-o-w-l-s-o-n.
[The juror was called to the
courtroom.]
THE COURT: Good evening, Mr. Knowlson.
JUROR KNOWLSON: Hello.
THE COURT: I don't mean, Mr. Knowlson, to single you
out for any embarrassment or any of that sort of thing, but I do need to
inquire of a matter that's come to the Court's attention.
And my question is, have you made
any remark to any other jurors as to the merits of the case, or which way you
think the case should go, or any suggestion that the -- of the guilt or
innocence of the defendant?
JUROR KNOWLSON: Of course not. We're all trying to be so careful about that.
THE COURT: All right.
You've not made any suggestion in the presence of any other jurors that
the -- you feel the defendant is being railroaded or any suggestion along those
lines?
JUROR KNOWLSON: No, sir.
THE COURT: Okay.
Have you -- at this point, have you made up your own mind about the case
--
JUROR KNOWLSON: No, sir.
THE COURT: -- or are you -- at this point, you still
maintain an open mind insofar as listening to all the evidence in the case on
behalf of the state and the defendant, and can you fairly and impartially
continue to do that?
JUROR KNOWLSON: Yes, sir.
THE COURT: And you feel that you can take the law as
given you by the Court and apply it to the facts after finding the facts fairly
and impartially from the evidence in the case?
JUROR KNOWLSON: Yes, sir.
THE COURT: All right.
And, at this point, do you have any -- do you feel you have any
predisposition or that your mind is made up or so made up that, at this point,
you've decided what ought to be done in the case?
JUROR KNOWLSON: No, sir.
THE COURT: All right.
Would you approach the bench, please?
[Counsel approached and a
conference was held at the bench, as follows.]
MR. PORTER: Your Honor, why would Ms. McAfee say
it? I think this is a matter of finding
of fact by the Court, that the Court does every day.
THE COURT: All right.
Anything else you want me to ask him at this point?
MR. PORTER: I don't think -- the problem is that if we
confront him with the specific statement it reveals who he made it to, and he's
denied that. But I'm concerned that this
is a factual matter and he has expressed an opinion to another juror, and I'm
going to -- I move to excuse him at this point.
THE COURT: We'll do all that on the record in a
minute. Anything else you want me to
ask?
MR. MOORE: No, Your Honor.
THE COURT: Okay.
[Bench conference concluded]
THE COURT: All right.
Mr. Knowlson, I'm going to ask Mr. Allen to take you back in the jury
room, and the instruction of the Court will be that there should be no
discussion with the other jurors insofar as any question that's been posed to
you or any of the conversations or statements or discussions or instructions
that have transpired in the courtroom while you've been in here. Do you understand that?
JUROR KNOWLSON: Yes, sir.
THE COURT: All right.
Thank you very much, Mr. Knowlson.
[The juror exited the courtroom.]
THE COURT: Mr. Porter?
MR. PORTER: Your Honor, we would move to excuse Mr.
Knowlson. We think this is a matter of
fact finding that the Court does in every case. Mrs. McAfee has no motivation that is apparent from any statement
to not tell the truth about Mr. Knowlson's whispered in her ear comment, and
the statement that he made in the open -- in the open jury room. We have evidence -- and we have evidence
that Mr. Knowlson has made up his mind, that he has communicated that to other
jurors in direct violation of the instructions of the Court, and we believe
that this makes him unqualified to sit in the deliberation portion of this
case, and we would move to excuse him at this point.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, we would insist that he not be
excused. We have two people here who
are relating two different sets of facts.
Mr. Knowlson is every bit as credible as Ms. McAfee. He has no reason either to come in here and
say he didn't do it to the Court.
We don't believe there's been any
showing that he wouldn't be fair and impartial. He's testified under oath that he would be fair and impartial; he
hasn't made up his mind. We don't know
what the motivations of Ms. McAfee might be, I mean -- and I don't think we
want to stop and hold a mini-trial here and bring every juror in and question
them about what's gone on and whether or not they've heard any conversations or
anything. And we just believe that he
should stay on the jury, Your Honor.
There's been nothing shown that would disqualify him, and we would
insist the Court leave him on.
THE COURT: Well, I don't believe the evidence of
statements at this point are such that the Court is authorized to remove the
juror. Frankly, I think it would be
reversible error to take that juror off at this point based on what's before
the Court.
MR. PORTER: Your Honor, in that case, we would ask that
all the jurors be voir dired as to this.
THE COURT: Well, that's the next question I was coming
to. I think that resolves the issue as
to Mr. Knowlson. And then the next
issue is do we need to inquire of the other jurors. And I think --
MR. PORTER: Your Honor, we would request that the issue
of Mr. Knowlson be specifically voir dired as to each juror, Your Honor,
because that's the only way to determine the credibility or lack of credibility
of Ms. McAfee because her statement was it was a general statement made in the
jury room. If someone else heard it,
then Ms. McAfee is the believable one.
THE COURT: Mr. Moore?
MR. PORTER: I don't think he has to be specifically
identified, but I think the statement has to be made and the statement has to
be identified in some type of identifiable context.
THE COURT: Mr. Moore?
MR. MOORE: Your Honor, we don't believe the Court
should use specific language. I think
you may be able to inquire generally, but I don't think the Court should use
specific language.
THE COURT: Well, I have a concern about asking a
jurors, 'Has anybody told you that they think the state's railroading the
defendant.' I just -- I don't think
that's appropriate. I just think that's
--
MR. PORTER: Your Honor, we're satisfied with the Court's
initial inquiry to the merits of the case.
THE COURT: All right.
MR. PORTER: I'm satisfied with that.
THE COURT: Okay.
I think that's appropriate. I
think that's appropriate.
All right. We'll just take them from the top and we'll
bring them in. Bring in Robert Bruce,
please.
[Juror Bruce was called to the
courtroom.]
THE COURT: Mr. Bruce, if you'll be seated just a
moment. I would like to inquire has --
my question to you is has any juror during the course of the trial made any --
up to and including today made any suggestion to you that that juror has made
up his or her mind as to the merits of the case and what the verdict ought to
be in this case?
JUROR BRUCE: No, Your Honor.
THE COURT: Okay.
You've not heard anybody make any comment or any suggestion as to the
guilt or innocence of the defendant?
JUROR BRUCE: No, Your Honor.
THE COURT: All right.
Thank you very much, Mr. Bruce.
If you'll go back to the jury room, please.
[Juror Bruce exited the courtroom.]
THE COURT: And ask Mr. Edwards to come in, please.
THE BAILIFF, MR. ALLEN: Mr. Edwards?
THE COURT: Is that -- J. K. Edwards.
[Juror Edwards was called to the
courtroom.]
THE COURT: Mr. Edwards, if you'll just be seated for
just a moment. I'd like to pose the
following question to you, and that is, during the course of the trial, and
that's up to and including today, has any juror made any suggestion or comment
to you of what the outcome of this case ought to be?
JUROR EDWARDS: No, sir.
THE COURT: Has anybody suggested -- made any suggestion
to you as to what the verdict should be or indicated that he or she has decided
what the verdict should be at this point?
JUROR EDWARDS: No, sir.
THE COURT: All right.
Thank you very much, Mr. Edwards.
[Juror Edwards exited the
courtroom.]
THE COURT: If you'll ask Ms. Limrotta -- Limratana to
come in, please.
THE BAILIFF, MR. ALLEN: Who?
THE COURT: Limratana.
[Juror Limratana was called to the
courtroom.]
THE COURT: Ms. Limratana, I'd like to pose the
following questions to you. My first
question is, has any other juror expressed in your presence any opinion as to
the guilt or innocence of defendant up to and including today?
JUROR LIMRATANA: No, sir.
THE COURT: Has any juror suggested what the outcome
ought to be, what the verdict ought to be, or indicated that he or she has made
up his or her mind as to what the verdict should be in this case?
JUROR LIMRATANA: No.
THE COURT: All right.
Thank you.
[Juror Limratana exited the
courtroom.]
THE COURT: Mr. Allen, if you'll ask Ms. Bolden to come
in, please.
THE BAILIFF, MR. ALLEN:
[Juror Bolden was called to the
courtroom.]
THE COURT: Ms. Bolden.
Ms. Bolden, I'd like to pose the following to you. The first question is, during the course of
the trial, up to and including today, has any juror expressed any opinion to
you as to the defendant's guilt or innocence?
JUROR BOLDEN: No, sir.
THE COURT: Has any juror indicated to you that that
juror has made up his or her mind as to what the verdict should be in this
case?
JUROR BOLDEN: No, sir.
THE COURT: Or suggested to you what your verdict should
be in this case?
JUROR BOLDEN: No, sir.
THE COURT: All right.
Thank you, Ms. Bolden.
JUROR BOLDEN: You're welcome.
[Juror Bolden exited the
courtroom.]
THE COURT: If you'll ask Ms. Toney to come in, please.
[Juror Toney was called to the
courtroom.]
THE COURT: If you'll be seated, Ms. Toney. Ms. Toney, let me pose the following
questions to you. And the first
question is, during the course of the trial, up to and including today, has any
other juror expressed any opinion in your presence as to what the outcome of
this case should be?
JUROR TONEY: No.
THE COURT: Has any juror indicated to you that he or
she has made up his or her mind as to what the verdict should be?
JUROR TONEY: No.
THE COURT: Has any other juror suggested to you what
your verdict should be?
JUROR TONEY: No.
THE COURT: All right.
Thank you, Ms. Toney.
[Juror Toney exited the courtroom.]
THE COURT: If you'll ask Ms. Yarborough to come in,
please.
[Juror Yarbrough was called to the
courtroom.]
THE COURT: Ms. Yarbrough, let me pose the following
questions to you, and the first question is, during the course of the trial of
this case up to this time, including today, has any juror in your presence
expressed an opinion as to what the outcome of this case should be?
JUROR YARBROUGH: No, sir.
THE COURT: Has any juror indicated to you that he or
she has decided what the verdict should be in this case and that they may have
made up their mind?
JUROR YARBROUGH: No, sir.
THE COURT: Has any juror suggested to you what your
verdict should be in this case?
JUROR YARBROUGH: No, sir.
THE COURT: All right.
Thank you very much, Ms. Yarbrough.
[Juror Yarbrough exited the
courtroom.]
THE COURT: Ask Ms. Miller to come in, please. Ms. Miller.
THE BAILIFF, MR. ALLEN: Ms. Miller.
[Juror Miller was called to the
courtroom.]
THE COURT: Ms. Miller, let me pose the following
questions to you. During the course of
the trial of this case and up to now, has any other juror -- have you heard any
other juror suggest what the outcome of this case should be?
JUROR MILLER: No, sir.
THE COURT: Has any other juror indicated to you that he
or she has made up his or her mind as to what the verdict in this case should
be?
JUROR MILLER: No, sir.
THE COURT: Has any other juror suggested to you what
your verdict should be?
JUROR MILLER: No, sir.
THE COURT: Thank you very much, Ms. Miller.
[Juror Miller exited the
courtroom.]
THE COURT: If you'll ask Ms. Hysler to come in, please.
[Juror Hysler was called to the
courtroom.]
THE COURT: Ms. Hysler, I'd like to pose the following
questions to you, and the first question is, during the course of this trial up
today, including today, have you heard any other juror express an opinion as to
what the outcome of this case should be?
JUROR HYSLER: I have not.
THE COURT: Have you heard any other juror indicate or
state that he or she has made up his or her mind as to what the verdict in this
case should be?
JUROR HYSLER: I have not.
THE COURT: Has any other juror suggested to you what
your verdict should be?
JUROR HYSLER: No.
THE COURT: Thank you very much.
[Juror Hysler exited the
courtroom.]
THE COURT: If you'll ask Mr. Blythe to come in, please.
[Juror Blythe was called to the
courtroom.]
THE COURT: Mr. Blythe, I would like to pose the
following questions to you, and the first question is, during the course of
this trial, up to and including today, has any other juror expressed an opinion
in your presence as to what the outcome of this case should be?
JUROR BLYTHE: No.
THE COURT: Has any juror indicated to you what -- that
he or she has made a decision as to what the verdict in this case should be?
JUROR BLYTHE: No.
THE COURT: Has any other juror suggested to you what
your verdict should be?
JUROR BLYTHE: No.
THE COURT: Thank you very much.
[Juror Blythe exited the
courtroom.]
THE COURT: Ask Mr. Albano to come in, please.
[Juror Albano was called to the
courtroom.]
THE COURT: Mr. Albano, I would like to pose the
following questions to you, and the first question is, at any time during the
course of the trial of this case, has any other juror indicated to you what he
or she thinks the outcome of this case should be?
JUROR ALBANO: No, sir.
THE COURT: Has any other juror indicated to you that
they have made their mind up as to what the verdict in this case is or should
be?
JUROR ALBANO: No, sir.
THE COURT: Has any other juror suggested to you what
your verdict should be?
JUROR ALBANO: No, sir.
THE COURT: All right.
Thank you very much, Mr. Albano.
[Juror Albano exited the
courtroom.]
THE COURT: If you'll ask Ms. Flowers to come in,
please.
[Juror Flowers was called to the
courtroom.]
THE COURT: How is your back, Ms. Flowers? Doing any better?
JUROR FLOWERS: Yes, sir.
Thank you.
THE COURT: Good.
Good. I'd like to pose the
following questions to you. The first
question is, at any time during the course of the trial of this case up to and
including today, has any juror suggested to you what the outcome of this case
should be?
JUROR FLOWERS: No.
THE COURT: Has any other juror indicated in your
presence that juror has made up his or her mind as to what the verdict should
be?
JUROR FLOWERS: No, sir.
THE COURT: Has any other juror suggested to you what
your verdict should be?
JUROR FLOWERS: No, sir.
THE COURT: Thank you very much.
[Juror Flowers exited the
courtroom.]
THE COURT: Ask Mr. Ford to come in.
[Juror Ford was called to the
courtroom.]
THE COURT: Mr. Ford, I'd like to pose the following
questions to you. The first question
is, at any time during the course of the trial of this case has any other juror
suggested in your presence what the outcome of this case should be?
JUROR FORD: No, sir.
THE COURT: Has any other juror indicated to you that
that juror has made up his or her mind as to what the verdict should be in this
case?
JUROR FORD: No, sir.
THE COURT: Has any other juror suggested to you what
your verdict should be in this case?
JUROR FORD: No, sir.
THE COURT: Thank you very much.
[Juror Ford exited the courtroom.]
THE COURT: Ask Ms. Clark to come in, please.
[Juror Clark was called to the
courtroom.]
THE COURT: Ms. Clark, I have the following questions
I'd like to pose to you, and the first question is, has any other juror during
the course of the trial of the case suggested to you what the outcome of this
case should be?
JUROR CLARK: No, sir.
THE COURT: Has any other juror suggested to you during
the course of the trial up to and including today that that juror has made up
his or her mind as to what the verdict in this case should be?
JUROR CLARK: No, sir.
THE COURT: Has any other juror suggested to you what
your verdict should be?
JUROR CLARK: No, sir.
THE COURT: Thank you very much.
[Juror Clark exited the courtroom.]
THE COURT: Ask Mr. Sullivan to come in, please.
[Juror Sullivan was called to the
courtroom.]
THE COURT: Mr. Sullivan, I'd like to pose the following
questions to you, and the first question is, at any time during the course of the
trial of the case up to and including today, has any other juror suggested to
you what the outcome of this case should be?
JUROR SULLIVAN: No, sir.
THE COURT: Has any other -- have you heard any other
juror indicate that that juror has made up his or her mind as to what the
verdict in this case should be?
JUROR SULLIVAN: No.
THE COURT: Has any other juror suggested to you what
your verdict should be?
JUROR SULLIVAN: No.
THE COURT: Thank you very much.
[Juror Sullivan exited the
courtroom.]
THE COURT: Anything else, Mr. Porter?
MR. PORTER: Well, Your Honor, I think we're caught on
the horns of a dilemma. I don't know
which one is not telling us the truth, but we've got somebody not telling us
the truth.
THE COURT: Well --
MR. PORTER: I don't think there's any cases in the
record to dispute the Court's ruling.
We would ask for some additional instruction this afternoon perhaps in a
more forceful manner, and we would ask that the bailiffs monitor the jury for
conduct of this nature and report it to the Court immediately if it
happens. I would assume they've already
done that, but I would ask --
THE COURT: They're keeping an eye on things. I've given them some strict instructions,
and I've told them, and I've told the jurors at every opportunity as clearly as
I know how to make, you know, those instructions, and I've sort of -- I don't
know -- I think I've done everything I know to do.
MR. PORTER: Yes, sir.
THE COURT: If anybody's got any suggestions, I'm open
to suggestion. It's not the first time
I've been through this, you know. I
mean, this is about the third time from the perspective of the bench, with the
same result each time. But anyway,
before we start, do you want to take a few minutes -- well, Mr. Moore, is there
anything else you want to put on the record?
MR. MOORE: No, Your Honor. I agree with the Court. I
don't know anything else the Court could do at this point, and so --
THE COURT: I thought you might.
MR. MOORE: Ms. Rogan would like a short recess. The next witness is going to be pretty
lengthy.
THE COURT: Okay.
Let's take ten minutes. Is that
sufficient?
MS. ROGAN: That's fine.
THE COURT: Let's take ten minutes, and we'll start back
up.
[Closed session concluded]
[Break taken]
THE COURT: Is the state ready?
MR. PORTER: The state's ready, Your Honor.
THE COURT: Is the defendant ready?
MR. MOORE: Yes, Your Honor. Just for the Court's information, Ms. Rogan will be doing the
direct examination of Mr. Chapel.
THE COURT: All right.
Bring the jury in, please.
[The jury returned to the
courtroom.]
THE COURT: Call your next witness, Ms. Rogan.
MS. ROGAN: The defense calls Michael Chapel to the
stand.
THE COURT: Mr. Chapel, if you'll take the stand, Ms.
Rogan, I'll ask you to administer the oath.
[The defendant stepped to the
stand.]
MS. ROGAN: Mr. Chapel, would you raise your right hand,
please. Do you solemnly swear the
testimony you're about to give in this case will be the truth, the whole truth,
and nothing but the truth?
THE WITNESS: Yes, I do.
Whereupon,
having been called as a witness and
duly sworn, was examined and testified, as follows:
BY MS. ROGAN:
Q. Would
you state your full name and spell your last name for the record, please.
A. Michael
Harold Chapel, C-h-a-p-e-l.
Q. How
old are you, Mike?
A. Thirty-four
years old.
Q. Where
did you grow up?
A. DeKalb
County. Decatur.
Q. Do
you have brothers and sisters?
A. Two
brothers, one who testified yesterday, Greg, and my younger brother, Bo.
Q. Is
Greg the middle brother?
A. He's
the middle.
Q. Did
you go to college?
A. Two
years nearly, Abraham Baldwin College, South Georgia. Went to game warden school.
Q. And
what were you studying there besides --
A. Wildlife
management, forestry.
Q. Did
you complete college?
A. No,
ma'am. The -- the accounting got me
out.
Q. What
did you do after you left college?
A. Let's
see. Worked for a short period of time
as an iron worker, then went into the Marine Corps.
Q. And
for how long were you in the Marine Corps?
A. Approximately
about two years active duty total.
Q. Did
you continue on in the Marines in the reserves?
A. As
a reservist until 1985.
Q. Are
you married?
A. Yes,
I am.
Q. When
did you get married?
A. 1981.
Q. Do
you have children?
A. Two.
Q. Boy,
girl?
A. A
boy and a girl.
Q. And
what are their ages?
A. Chad
is eleven. Chelsea is eight.
Q. What
did you do after you left active duty with the Marines?
A. After
leaving the Marine Corps active duty, I went to work for DeKalb County
sheriff's department and stayed there approximately a year, then I came to
Gwinnett.
Q. And
what did you do at the DeKalb County sheriff's department?
A. I
was assigned to work the jail.
Q. And
when did you join the Gwinnett County police department?
A. 1984. The month I forget.
Q. Did
you go through the police academy?
A. Yes,
I did, and Johnny Moore was my legal instructor, as well as Mr. Porter.
Q. During
your tenure with the Gwinnett County police department, were you involved in
any special units?
A. I
was an active member of the SWAT, and in 1988 we started the street level drug
interdiction in Buford, which was called Delta.
Q. Can
you tell us, please, what SWAT means.
A. Special
Weapons and Tactics.
Q. And
what is the purpose of a SWAT team?
A. To
handle any high-risk situations that normally wouldn't be assigned to the usual
patrol type status.
Q. Did
you have special training?
A. Yes,
extensively.
Q. What
type of training did you get?
A. There
was monthly -- monthly training, then there was times where we went away to
schools and times we competed with other departments in different tournament
like things.
Q. Describe
for us, please, what the Delta unit was about.
A. The
Delta unit started after a drug sweep, sometime in the late eighties. It started with just myself as -- working
the -- like a ten-block area, and then it picked up another officer and then a
third and then a supervisor, and then it evolved into a little special
operations type organization.
Q. Was
this located in a particular part of the county?
A. In
Buford.
Q. Was
there a similar unit in any other part of the county?
A. Not
that I was aware of at the time. Others
-- others evolved into -- each precinct had their own little unique group, I
guess you'd say.
Q. For
how long was this group that you were a part of organized?
A. Let's
see. It started about 1988. I left it in
'90 or '91, and it was still
enacted until all the members got transferred to the main narcotics unit.
Q. Were
any of the people who might have appeared in court part of the unit?
A. Sergeant
Bill Carty, Officer Wayne Taylor.
That's who I recall.
Q. Was
this a somewhat unorthodox unit?
A. Quite.
Q. In
what way was it unorthodox?
A. Well,
we were pretty much out there to do whatever it took to stop the drug sales on
the -- in this particular area, so we had to alter our methods to -- to the --
the bad guys were adapting, we'd adapt and re-adapt. It just kept going on and on.
Q. What
types of methods did you use?
A. We
used -- I recall one time we snuck up in there in a limousine and came out on
the drug sellers as they were standing on the corner. A lot of -- a lot of intelligence gathering or use of informants
and just basically sneaking around the woods and watching and seeing who was
doing what and who was selling what and a lot of stuff like that, a lot of
undercover work.
Q. Was
this a street-level --
A. It
was street level.
Q. --
drug interdiction?
A. Uh-huh.
Q. And
you mentioned undercover work. Did you
engage in a lot of undercover work?
A. No. I was classified as a unique body size. I wasn't too -- it'd take a lot of cover for
me to go under.
Q. Not
too effective?
A. Yeah.
Q. Okay. Mike, during your tenure with the Gwinnett
County police department, did you receive letters of commendation?
A. Several.
Q. Do
you know how many you received?
A. I've
been told twenty-six.
Q. And
was that -- over what period of time was that?
A. I
think they range from about '85 till just a month or so before my -- the end of
my career.
Q. Now,
you mentioned that you left the Delta unit in 1991?
A. Uh-huh.
Q. Why
did you leave Delta?
A. It
was too much stress on my family life at home because we had such strange
working hours. It was -- it was time to
move on.
Q. Were
you working predominantly at night?
A. All
night, yes, ma'am.
Q. And
did there come a time when you retired from the SWAT team?
A. I
retired from SWAT -- I believe it was March 29, nineteen ninety -- 1993,
because of injuries.
Q. What
types of injuries?
A. Well,
in 1987, I think it is, I fell off of a wall while rappelling and fractured
some disks and did some damage, and then when it healed I went to -- they used
to use me for a battering ram rather than carry -- have three people carry a
battering ram. I usually knocked down
all the doors on tactical entries, and it was microdamaged and finally it just
snapped on one particular call-out.
Q. What
precinct did you work out of when you were
at --
A. Most
of the time Northside precinct in Buford.
Q. How
long had you been at the Northside precinct?
A. I
did a short term on Jimmy Carter Boulevard, and then pretty much and never went
back anywhere else. But I also worked
out of the Northside precinct when we had less people and we worked larger
zones, so I have been known to range all the way to Loganville from Buford.
Q. Were
you working at the Northside precinct at the time that your career ended?
A. Yes.
Q. Were
you familiar with the patrol vehicles at the Northside precinct?
A. Yes,
I was.
Q. Mike,
I'm going to hand you what has been marked for identification as Defendant's
Exhibit 166. Can you tell me if you
recognize what that is, and if so what it is?
A. It's
a photograph of a Gwinnett County police cruiser, the newer model. It resembles 197 that I had, but it's
not. It's Unit 45.
Q. All
right. And I'm going to hand you what's
been marked for identification Defendant's Exhibit 167 and ask you to identify
that.
A. This
is a photograph of the older models, the ones that the newer models replaced. This is the -- a large Crown Victoria with
the yellow stripe that goes up over the rooftop. Real prominent. It's a
spare unit, I believe. I can't tell
because we don't have the numbers on -- I can't see the numbers on it.
Q. Do
you know for sure if that is a car that would have been at the Northside
precinct at the time?
A. Very
possible, because Unit 101, which was our spare, was the same vehicle. Appears to be the same vehicle.
Q. Does
it resemble --
A. It
resembles the same vehicle.
Q. --
the spare vehicle that was used at the Northside precinct?
A. Yes,
it did.
Q. All
right.
MS. ROGAN: Your Honor, at this time I'm going to move
to tender into evidence Defendant's 166 and 167.
MR. PORTER: No, objection, Your Honor.
THE COURT: Defendant's 166 and 167 are admitted without
objection. Go ahead, please.
MS. ROGAN: May I publish them to the jury?
THE COURT: Yes.
[The exhibits were published to the
jury.]
BY MS. ROGAN:
Q. I'd
like you to take a look at what has previously been entered in evidence as
Defendant's Exhibit Number 2 and tell me if you see those cars that you have
just identified on that board?
A. Yes,
I do.
Q. Okay. Can you tell us if you see Defendant's
Exhibit 166, which was the car you identified as a patrol car similar to the
one you drove?
A. That
would be Number 11.
Q. And
do you see Defendant's Number 168, which you identified as a car resembling the
spare unit that would have been at the Northside precinct?
A. That
would be Number 6.
Q. Thank
you. And what unit were you assigned while
you were at the Northside precinct?
A. At
the time of -- in March of -- excuse me -- April of '93?
Q. Yes.
A. I
was in Unit 197.
Q. I'm
going to hand you what has been previously identified as Defendant's 69. I believe it's been entered into evidence. [Pause]
It has been previously entered into evidence. Can you identify what that is a picture of?
A. It's
a photograph of Unit 197.
Q. And
was that your vehicle during the period of April 1993?
A. Yes,
it is.
Q. I'd
also like to show you these. These have
been marked. Mike, I'm going to show
you what have been marked for identification as Defendant's Exhibits 131, 132,
133 and 134, and ask if you can recognize what they are and, if so, tell us
what they are.
A. There
are four photographs here. They appear
to be photographs of the interior of 197.
Q. And
how can you tell that those are -- that that's the interior of 197?
A. Well,
Defendant's Exhibit 133 has a picture of some items in there that belong to me.
Q. Specifically,
what items that belong to you?
A. Well,
the pursuit pack on the seat over there, that's -- that appears to be one like
it or the same one. The metal
clipboard, the ticket book that's inserted into here is -- that's mine because
I had the bumper stickers on there. The
clipboard was the daily use log book.
The big blue checkbook was the gym's checkbook. The knife stuck into the pursuit pack is a
diver's knife that my father gave me, and that's from Defense 133.
Defense 134 is a driver's side
photograph of the front seat of 197.
Again, it shows the pursuit pack, the clipboard with the bumper sticker
on there inserted, and that's where I kept it.
The flashlight I -- it's a photograph of a county-issue flashlight, but
I believe this one to be mine because the thumb switch is missing off this one
in the photograph, and that was consistent with mine. Again, there's a picture of the knife. The handcuffs are where I kept my handcuffs, and, again, my daily
work -- work -- clipboard.
These other two photographs, D-132
and D-131, other than -- the pursuit pack in D-131 appears to be the one I had
in 197, but the hat is a county-issue hat.
That's where I kept my hat, but I don't know if it's actually my hat. And D-132 is a photograph of my hat or a
county-issue hat that could possibly be mine, but that's where I kept it.
Q. Do
these photographs fairly and accurately represent the condition in which you
left your car on the night of April 23, 1993?
A. At
the time I left the car?
Q. Yes.
A. Not
-- not really, because there's apparently been some stuff moved, and some stuff
re-moved in various stages of these photographs have been moved.
Q. Do
the photographs -- can you identify those photographs as pictures of the
interior of your car from that time period?
A. Yes. Yes.
That is where I had my pursuit pack, and that is where I had my
flashlight, and all the things that remain there are where they should be.
Q. Is
that -- are those photographs depicting the car in more or less the same
condition it was in the last time you saw it?
A. Yes. The only thing that's different about
the personal items that are in the car,
some of them have been moved around, but as for the computer and all the stuff
that are in the car, the seat and all that, everything appears to be normal as
I left it that night. The only --
Q. Are
you saying there are some things that aren't in the picture --
A. That's
correct.
Q. --
that were previously there on the front seat?
A. Oh,
yes. Yes.
MS. ROGAN: Your Honor, at this time I'm going to tender
Defendant's Exhibit 131, 132, 133 and 134.
THE COURT: Any objection?
MR. PORTER: Your Honor, I don't believe that technically
a foundation has been laid, but the state has no objection as long as the jury
can keep in mind the exceptions that have been noted --
THE COURT: Defendant's 131, 132, 133 and 134 are
admitted without objection. Go ahead,
please.
MS. ROGAN: May I publish them to the jury, Your Honor.
THE COURT: Yes.
[The exhibits were passed to the
jury.]
BY MS. ROGAN:
Q. Mike,
during your tenure as a Gwinnett County police officer, did you have occasion
to encounter people who were bleeding?
A. Quite
often.
Q. Can
you describe some instances in which you came across people who were bleeding
for some reason?
A. Generally,
nearly all accidents with injuries nearly all the time someone was
bleeding. Fight calls. Assault calls. Domestics sometimes, domestic violence. Persons injured for various reasons. We had the lake patrol also, so we had all the accidents that
happened around the lake we had to go to, and we'd generally respond to just
about everything you can think of.
Q. What
types of calls in specific would entail the possibility of someone bleeding?
A. An
accident, a car accident, if someone were bleeding, like Ms. Cronic from --
that testified yesterday. I worked that
call, and her and her partner -- excuse me, her passenger both had severe scalp
injuries at that time, so that's one that comes to mind. And a person being assaulted by another with
whatever weapon that would generate the type wounds that cause extensive
bleeding or any bleeding. You could
carry it on to maternity calls I've been on.
I've seen blood there also. But
it just -- it's not a rare thing.
Q. I'd
like to show you what has been previously entered into evidence as Defendant's
Exhibit 152 and 153, and these are photographs that were entered yesterday in
relation to the testimony of Ms. Cronic that you just alluded to. Are you in those pictures?
A. Yes,
I am.
Q. And
what are you doing in those pictures?
A. Okay. In D-152, this is a photograph of a -- of a
photograph, and I'm standing next to Ms. Cronic's vehicle that she drove off
the wall, doing some paper work.
Defense Exhibit 153 is a different angle photograph of a photograph, and
again I'm using the top of her car as a table to do paper work.
Q. Are
you in both --
A. I'm
in both.
Q. --
both of those photographs?
A. That
is the unique sunglasses, the Terminator glasses.
Q. Do
you recall the testimony of Dr. Brusie --
A. Yes,
I do.
Q. --
who was one of the witnesses that saw a patrol car at the scene? He indicated that he did recognize you from
an incident in which you responded. Can
you tell us, please, about that incident?
A. The
incident with Dr. Brusie where we responded -- actually, another officer had
called me to a -- to help him on a call on the night of -- sometime in late
March. I don't recall the exact
date. But he had called me and asked me
to come over. He said he had a horse
that was severely injured that was going to have to be put -- put down, and he
didn't think he could do it, and he asked me to come over and help him and
basically put the horse down. And I met
Dr. Brusie there.
Q. When
was that?
A. The
date escapes me, but it was -- it was very late March. It was March -- I believe March 28 or so,
something like that.
Q. Of
what year?
A. 1993.
Q. Did
you have to help put the horse down?
A. Yes. I physically held the horse -- it was a big
horse, but I physically held the horse still while we put it -- we put it down.
Q. Have
you ever had occasion to shoot a wounded deer by the side of the road?
A. Oh,
yes.
Q. Do
you have any recollection of how many times you may have done that?
A. No. It'd be hard to say. Over that long a time in that rural of an
area, at least -- at least twice a month, probably.
Q. Do
you recall on the videotape that we saw here in court when Investigator
Burnette was asking where your lockers are --
A. Yeah.
Q. --
do you remember making reference to deer antlers --
A. Yes,
I do.
Q. --
as a means of helping him find your particular locker?
A. Oh,
yeah.
Q. Were
those deer antlers from a time in which you had put a wounded deer out of its
misery?
A. Yes.
Q. And
we've also heard testimony about the incident in which you put your fist
through the window of a car. Can you
describe the circumstances of that incident for us, please?
A. Well,
it was during football season in 1992.
I had just picked up Unit 197.
It was brand -- brand new even to me then. A call came out of a suspicious person at the football game
impersonating a police officer or pointing a gun or something similar to
that. Well, I responded, my brother
responded, Sergeant Stone responded. We
all converged on the area. Anyway, I
ended up jumping the guy, and he took off in his car, and I gave chase.
Well, we led through old town
Buford and ended up in the housing project on Circle View Drive, and it was in
a cul-de-sac. It was nighttime, and it
was under a streetlight. Well, I was
the first one there. I bailed out, ran
to the -- ran to the car door, and started telling him what I wanted him to do
because we had him blocked in, and he just -- he had his hands on the steering
wheel, and he just looked up at me like I wasn't there, and I was very loud and
aggressive, and I told him plainly to open the door, turn the car off and open
the door. Well, he looks to his right,
and there was a gun laying on the seat, and he looked back at me, and he
reached over with his left hand, going for the gun, and I reached through and
grabbed him by the hair and made him stop doing that. And I put him out of the car -- I put him out on the ground, and
my brother and the rest of the officers cuffed him.
Q. And
when you say you 'reached through,' did you smash the window --
A. The
window was rolled up. Yes.
Q. Is
that a situation in which you would have been authorized to shoot the person?
A. From
our training, very much so, I believe.
Q. Were
you reprimanded for not shooting him in that situation?
A. Comments
were made by certain high-ranking officials that -- that I used excessive
force. Rather than not killing him, I
guess.
Q. Was
the suggestion that you should have killed him or should have shot him?
A. The
suggestion was made that I should have shot him, yes.
Q. Okay. Have you been in other situations in which
you have been authorized to use deadly force in terms of shooting someone?
A. Oh,
most definitely, yes.
Q. Can
you recall any other instances in particular in which you would have been
authorized to shoot someone and did not?
A. There's
-- on the street level, yes. There was
-- there was a few times. One that
stands out in my mind is an incident that happened at Buford Mall where a young
man thought it would be funny to point a plastic Uzi machine gun at me while I
was doing a vehicle stop there, and it got real tense there for a few moments
until we found out that. Then there was
several times on SWAT -- in fact, many times on SWAT where an incident came
up. I can remember one in particular
where Mr. Porter was there, and the guy went for a gun, and we cleared the
house, and it was plain as day he could've been -- he could've -- he could've
been shot, but we didn't.
Q. Did
you have to make a decision as to whether to shoot the person or not?
A. Oh,
yes. I was -- I was -- I was the lead man
and assessed the situation. Like I
said, there's many times -- most entries, the decision has to be made then,
instantaneous, because that's what we're there for. And all my times on SWAT we never shot anybody.
Q. Have
you ever shot anybody?
A. No,
I've never shot anybody.
Q. I'd
like to draw your attention to something different, and that is the four $100
bills that were in the little notebook that was in your car. Why was that money there?
A. Well,
the money was placed there -- the little maroon notebook that you saw in the
exhibits was my working notebook for my -- I kept in my briefcase. And Mr. Dudley, who had invested some money
in the gym, he had given me some money also, and I put that in the same spot. Well, as I filtered out spending Mr. Dudley's
investment, it just -- it was a natural place where I kept my
didn't-want-to-be-found-mixed-up-with-other-stuff type money, because the gym
-- the gym money bag was a People's Bank money bag. That was daily operations.
Well, my wife, she -- she was
working at the time at a restaurant, and she made all her money from tips, one
dollar bills, five dollar bills, such as that, and she made quite well. And she would come in with her daily
receipts, and then swap out money out of the gym -- gym account and exchange
for bigger bills because -- see, I didn't carry a wallet at all. I just -- I always went -- whenever I got
money I got the largest denomination I could, and I carried around like -- and
I've done it for years. Well, my wife
carried her receipts in her purse in an envelope, and I carried a day's
receipts in the money bag, and as we met up she would exchange out -- well, the
point is, I know how certain times an overdraw can be made when you're
exchanging that, and this money was set aside for something special, and I
didn't want to get it lost.
Q. What
was it set aside for?
A. Well,
my wife had been traveling. In January
she went to New Orleans -- we tend to go on trips pretty often, one or two
days, and I always, always used traveler's checks. I always did. That's --
because I've lost -- I've lost them before, and it was so convenient just go
get them redone. Well, when we didn't
have -- well, when we had left over traveler's checks, they were kept at the
house. We kept them in a big Bible, and
that was mad money, the emergency fund, as you would have it. Well, along about -- along about the middle
of March, I declared an emergency, basically, because turkey season was coming
up, and I had wanted a new shotgun.
Sergeant Stone and I had scouted some, and I found what I wanted, and it
was about $370, and that's what I planned to buy, so I had squirreled it away
in the secret spot, and it didn't get found during the transactions, so --
Q. Had
you been shopping with Sergeant Stone for a turkey rifle?
A. Well
-- turkey shotgun.
Q. Sorry. Shows what I know about guns.
Q. We
-- it was a -- it wasn't per se shopping trips. We -- part of -- part of our daily routine or my daily routine
was to check all six pawn shops in Buford for stolen property, and I've made
cases that way finding especially rings with signatures on them and something
identifiable taken in burglaries. I
remember one time what was unique was a dual head VCR. I'd never even seen one before, but it
turned up in a pawn shop, so it was -- it works out that way. And while I was in pawn shops I just kept my
eye open for what I was looking for, and I found one. It was either Wild Bill's or Sam's. I'm not sure which. But
-- probably Wild Bill's because I've dealt with him -- I've bought weapons from
him before, but the point is I found what I wanted, and it was -- the exact
dates, I don't know, but I took -- declared it an emergency and took some
emergency checks out. I think I
probably only took two -- maybe two, maybe three, because I had cashed personal
checks that came from the gym, some people buying memberships, and I recall --
I do recall someone paid for a three-month gym tan $100 special with a $100
traveler's check, so I do recall that.
And I may have added two of my own and then cashed another check, but it
was -- it was before turkey season, and it was somewhere around the middle of
March. I don't know.
Q. Did
you ever get a chance to purchase the shotgun?
A. Well,
as things would happen, I hee-hawed around, and I think -- the best I can
recall, I went back and looked at, I think, Bill's, at Bill's place, and it was
either gone or just not there or something was there I didn't want, so
basically the hunt continued, and I just kept looking. Anyway, I had the money, and that's the
$400.
Q. Did
you and Eren have credit cards?
A. No,
absolutely not.
Q. Was
it unusual, Mike, for you to have $100 bills?
A. Me?
Q. Yes.
A. It
was unusual for me to have a lot of them, but at times when I was selling the
vitamin supplements, and, like I say, Mr. Dudley invested -- he says fourteen
hundred, but it was actually fifteen hundred there and -- for whatever
reason. There was fifteen hundred of
them there. Fifteen $100 bills. Excuse me.
Q. And
that was back in January?
A. That
was probably the most I ever had in my entire life, yes. It was not uncommon for me to cash my $750
paycheck and take cash and do something like that.
Q. And
would you carry it in one hundreds?
A. Whatever
-- whatever she had in the till.
Usually, I tried to stay with fifties or hundreds because, again, I
didn't carry a -- I didn't carry a wallet.
I carried an I.D. badge, and that was it.
Q. We've
heard quite a few references during the trial to your gym.
A. Yes.
Q. Was
that a sideline business that you operated?
A. It
was a hobby. You know, it wasn't -- it
wasn't no big money-maker. It never was
intended to be because I didn't -- I didn't comply to health club rules and
regulations. Buford is a -- is a
working class town. The people there
work hard for their money, so I kept the prices down low. We just -- we just got by, but we were there
for three years, so --
Q. When
did you open the gym?
A. In
may of 1990.
Q. And
can you tell us a little bit about how you operated it? Was it, you know, a formal operation or
informal?
A. We
were extremely laid back. We -- we had
dues due the first of the month like most places would. People come in, they would -- if they were a
little short, I'd carry them till around the middle of the month, whatever, but
generally -- generally, I worked with a lot of folks and did what was -- did
what it took to keep them happy, and, you know, we kept -- as long as we kept
the lights on and, you know, and nobody at the door, we were all right.
Q. What
was the membership fee?
A. We
charged $25 a month or $100 for three months or $250 for a year, and the $100
-- the spring special that we ran every spring in '93 included three months gym
and tan for $100, and generally that sold pretty well also.
Q. Were
you running that type of membership special --
A. Yes,
we --
Q. --
during the period of April 1993?
A. We
started it April -- about April 1, I believe.
I haven't seen the books since the search warrants, so I don't
know. I can't give you an exact date, but
generally we -- it ran spring -- the big times are January, New Year's
resolutions; spring, everybody getting ready for summer; and then towards the
fall, after school starts, when everybody's feeling fat and happy around
wintertime, they want to start working out again.
Q. Did
you sell vitamin supplements out of your gym?
A. Yes,
I did.
Q. And
what are those vitamin supplements?
A. I
sold a number of stuff. Probably the
hottest selling thing I had at the time was the Testron that keeps being
brought up here. It was an
over-the-counter food supplement. It
was an enhancer type.
Q. Is
there anything illegal in that Testron?
A. Not
-- none whatsoever. I --
Q. How
much did you sell the Testron for?
A. Thirty
dollars.
Q. And
how often did you receive a shipment of Testron?
A. We
didn't receive more than -- more than four or five shipments total from Dixie
Health Labs. I had bought -- I had sold
several other kinds of Testron, the same label, from places like American
Spring Systems, Weider, Costello's. They
had -- I had sold their version of Testron, and it was -- it sold pretty well,
but from Dixie Health Labs, with the bottle everybody keeps referring to here,
came -- it was like four or five orders.
I don't recall exactly how much.
Q. Had
you just received an order in April of 1993?
A. We
received an order -- I had taken a -- Mr. Dudley's investment -- he gave very
good -- he's a very good businessman.
He instructed me on how to make money doing that. He told me to put half in advertising and
the other half into some hot selling item that had a large markup. Well, Testron has about a 110 percent
markup, so I did exactly that. I had
paid -- I had paid for such as that, broke it down and paid for it that
way. Yes, it sold very well. In fact, the shipment in April was prepaid
and presold just nearly complete. There
was very few bottles left when it actually arrived that wasn't accounted to
send to somebody -- to give to somebody that had already paid for it.
Q. Did
you sell anything in addition to Testron?
A. The
number two hottest selling item was stuff called KM tonic that I had bought a
case -- I believe a case in late March, first of April, from Mr. Browning, and
it was -- it was on such -- it was such hard to get that it sold -- I mean,
just as quick as it came in the door, it was gone.
Q. Mike,
I'm going to hand you what have been marked for identification as Defendant's
Exhibit 168 and 169 and ask you if you recognize what those are?
A. They
are -- these are the actual sign-in sheets, daily sign-in sheets for the
gym. People come in, I had this sitting
at the ledge of the pro shop. People
would sign in as they come in so I can keep track of who's doing what where and
how. This is -- one's for the 15th and
the other one doesn't appear to be dated.
Q. The
15th of what, Mike?
A. The
15th of April.
Q. Okay. Is there a message on the bottom of the
sign-in sheet?
A. Yes. It was common for me to relay messages to
the gym population by leaving little notes, and April the 15th says 'Testron is
here, first come, first serve.' That
was on Defense 169. Defense 168 was,
again, a sign-in sheet, and it says, 'Testron is here, first come, first
serve,' and it's a count-down. In fact,
it's got a tally of how many bottles were left at the time this sheet was --
that says -- it has a twelve, and then 'twelve bottles left,' and then it's
scratched out, and it says, 'ten bottles left, $30.' Also, it has another advertisement for KM tonic for $35, only
four bottles left.
MS. ROGAN: Your Honor, at this time I'd like to tender
Defendant's Exhibit 168 and 169 for the record.
MR. PORTER: No objection for the record, Your Honor.
THE COURT: 168 and 169 are admitted.
MS. ROGAN: Do you need some more water, Mike?
THE WITNESS: No, I'm fine. Thank you.
BY MS. ROGAN:
Q. I'm
going to direct your attention now to April 3, 1993. Can you tell us what happened that day?
A. Well,
the events that led to this are a call was given out by radio. Radio dispatch made the first call out of
the -- first call of the day. It was a
-- given out as a burglary call, as we've seen from the call card. It was at 1402 Craig Drive. I drove over there, parked, got out, and
went in, and met with -- there was two people there, Ms. Emogene Thompson and a
one Michael Thompson. It was a
trailer. When I arrived, I noticed a --
in my interview tape I called it a Cadillac but since realized it was a
Continental, the same Continental that belonged to Ms. Thompson. It was in the driveway. I didn't see any other vehicles in the
driveway. I got out and went inside,
and, like I say, I met with Ms. Thompson, and she told me her story.
Q. And
what was the situation that you encountered there?
A. Basically,
she was real hesitant about talking about the -- whatever had happened. She kept telling me some money was missing,
there had been a break-in. I asked her,
first, a typical burglary investigation somebody has to get in, so I asked her
to show me what she thought was the point of entry. Well, we worked our way back to the back door of the trailer, and
she pointed out a cut in the screen.
Well, there was dust, cobwebs inside the glass to the screen, and it
appeared -- plus it was a crank-out glass.
It appeared that nothing or nobody had ever been through that thing in
quite a while, just that the screen was cut.
So I went back, and she started
telling me her story about how half of $14,000 was stolen in a burglary, and it
didn't take very long to realize that this was not ordinary. And I told her finally -- I let her finish,
and I told her, I said, 'Ma'am, first off, nobody steals half of $14,000 from
your hiding spot, puts it back, and then -- that's just not done. Well, she struck me -- and she short of
agreed without agreeing verbally because, like I said, Mr. Thompson was sitting
there, and I got the feeling that there was more to this, so I asked Mr.
Thompson to step outside and smoke a cigarette or something to get away from
his mother, and he stepped out on the porch, still visible, and I asked -- I
asked, I said, 'What's going on?' And
she shrugged her shoulders and said, 'Somebody took the money. Somebody took the money.' And I said, 'Did Mike take the money?' And she just nodded her head, and I said,
'Well --'
And I explained -- then I explained
to her her options. I told her she
could only do one of a few things. She
could forget the -- forget it ever happened, she could prosecute, which I
really wanted her to do, or she could discuss it with Mike and see if he'll do
the right thing and bring it back.
Well, she said she didn't know what to do, so I -- asked me what I --
what I could do, and I said, 'Well, I'll bring him back and then talk to him
with him here and let you -- see what we can do.'
Well, I asked him to come back in,
and I still hadn't even been showed where the money was hidden at yet. We were sitting in a very, very cluttered
living room. From what they told me
they were living out of this one room in this trailer, and I sat him back down,
she sat down, and I was standing, doing the way I usually do interviews. And I asked him, I said, 'Why did you take
your mother's money?' And he
immediately -- and I noticed the whole time every time I mentioned money he
looked where the money was hidden. It
was hidden right in a chest of drawers right next to us.
And he just -- he was passive. He didn't have any response, so finally it
evolved to where I just said, 'You're lying.'
I called him a liar, and I told him I knew he was lying because I had
called him a liar in front of his mama and he had no response. So I was at a loss. I didn't know what to do then, and she
didn't want to prosecute, I ran the boo, I didn't know what to do now. That's -- for all I was concerned it was
over with. She was still upset about
it, and I told her, I said -- she showed me during this initial visit -- she
never took the money out and counted it.
She showed me -- I recognized it because I had a People's Bank account
also -- it was a People's envelope that our bank statements come in. She had money in that. Well, how much it was, I'll never know. It was -- it was money, currency, U. S.
currency.
Q. A
lot of money?
A. It
appeared to be. I mean, what -- I'll
make the same assumption Mr. Curtis did.
It appeared to be a lot of money because it was stacked. It was -- it was money. I saw money there. How much, I have no idea.
She didn't even know how much was stolen, and that struck me as
extremely odd because -- and she told me it had been gone for several days,
almost a week or two, but she had yet had no idea how much was taken, and that
just didn't jibe with me.
So I'm -- I'm formulating my own
theory here, and she -- she doesn't want to make any motions to prosecute, so,
basically, I said, 'Now, Mike, you stay here inside. Ms. Thompson, you step here.'
They had a large porch. We
stepped outside because -- far as I'm concerned, I'm leaving, because there's
nothing more I can do here. And I told
her then, I said, 'Well, what do you want to do?' And she said, 'Well, I don't want to -- I don't want to see him
get in no more trouble than he's in because he's --' He owed back child
support, he had had a car motor blown in his car. There was a car parked out back.
I saw it when I went out and looked at the alleged point of entry, and
there was -- he had that blown, he had a drug problem with the people next
door, and all this good stuff. And I
said, 'Okay. Well --' She kept asking me what could she do, and I
told her, I said, 'Bluff the boy. Tell
him you're going to prosecute. Tell him
you're going to do this, do that, and see what -- see what happens. Other than that, there's nothing more I can
tell you to do.'
Q. Did
you think it was unusual that she had a large amount of money in the house?
A. I
thought it was extremely unusual due to the conditions of the house and -- the
trailer, and the fact that -- I'd come -- I'd come from street level drug
interdiction, and now here I am at a -- granted, not the same side of town, but
similar circumstances where I've seen a lot of -- a lot of money flowing due to
drug sales and fancy cars -- well, fancy cars for that area -- parked out
front, and now here I've got almost the same thing. And I knew the people next door from a previous contact with Ms.
Smith, Marsha Smith, who testified before, when I dealt with her daughter and these
people. I knew there was some drug
activity. Now I've got this car out
front, I've got money, I've got people admitting to being -- alleged to be
involved with drugs, so, yeah, the flags are up now. I'm wondering what's going on.
Q. Did
you write the tag number of that car in the driveway down?
A. I'm
thinking, to the best of my knowledge -- Mike Thompson stayed inside the
trailer. Ms. Thompson followed me out
and walked me to my car. We were -- I
got in the car. I sat down. The photograph shows where I kept my
clipboard. I very likely could've wrote
down her tag at that time because it was my habit to do such as that. I've done it millions of times. Not millions, but I've done it quite
numerous times. Odds are she was
probably standing at the window still talking.
This car is sitting right in front of me, the tag shining. I'm not going to sit there and run the tag
on the MDT and let her see the results.
That I have enough sense not to do because that's what I did over in
crack town. Well, she walks out, I
explained the options, she goes back inside -- I left. I didn't see her go back inside. That was the end of the contact, as far as I
was concerned, and move on to the next one.
Q. Did
Ms. Thompson tell you why she had money in the house?
A. She
-- now, my memory is vague on this. I
don't know whether it's from later investigation on my own behalf and since
this has started or the fact that she told me there, but I honestly can't say
if she told me it was from an inheritance.
All I remember, the discussion about the physical money itself, she told
me -- first off, I suggested that she put it in a bank. She didn't want to put it in a bank because
she was afraid of a lien of some kind.
Second of all, I told her that find a hiding spot, don't tell anybody,
and then you'll know where it's at and be done with it. Well, and that's when she made the comment
that she was going to give it to her sister and put it in a safety deposit box,
and that's the limit of the conversation on the currency.
Q. Mike,
I'm going to show you what's been marked for identification as Defendant's
Exhibit 170, and ask you if you recognize what that is a picture of?
A. It's
a photograph of a brown and white trailer.
It appears to be Ms. Thompson's, 1402 Craig Drive.
Q. Is
that the -- is that a picture of the trailer that you responded to on April 3
of 1993?
A. The
leaves weren't out on the trees at the time.
It was still wintertime mode, and -- it appears to be. I would just have to say that it is.
Q. Is
there anything different about the trailer itself that you see?
A. Well,
in the shadows -- in the shadows, I don't recall all that lattice work, but
I've been to so many trailers in Buford.
MS. ROGAN: Your Honor, I'd like to tender into evidence
Exhibit Number D-170.
THE COURT: Any objection?
MR. PORTER: No objection, Your Honor.
THE COURT: It's admitted without objection.
MS. ROGAN: May I publish it to the jury?
THE COURT: Yes.
[Defendant's Exhibit 170 was passed
to the jury.]
BY MS. ROGAN:
Q. You
mentioned that you had not run the tag right away because you believed Ms.
Thompson was still standing near your car and speaking to you. Did you run the tag at all at any time?
A. I
don't recall ever running the tag. I
don't -- I wrote the tag down, probably, at that time as habit, like I always
did when I went to calls and they were suspicious in nature. I recall after we broke off our meeting
leaving Craig Drive, driving up towards Hillcrest. Sergeant Stone was -- my supervisor, who generally was around
most calls, was sitting up there at the dirt portion of Hillcrest, and we -- I
pulled in to meet him, meet up with him, and I told him about the call because
it was -- it was strange, you know. It
was a unique -- even for Buford it was a strange call. He -- he suggested strongly that I write a
report. I argued the fact. I hate paper work, any type and all kinds,
and he suggested again or -- anyway, we had a little conversation about writing
a report. Well, I finally conceded and
started to write a report, and at that time a vehicle came up from behind
Sergeant Stone, and we were blocking the road.
It's a dirt road, and granted not a whole lot of vehicle traffic, but
blocking the road nonetheless, and we had to move on, and we went on about our
business.
Q. Mike,
I'm going to show you what's previously been entered as State's Exhibit
77. Do you recognize what that is?
A. This
-- this is a Gwinnett County daily log -- patrol activity log sheet. It's a standard form used by most patrol
officers in Gwinnett County.
Q. And
what's the date for that particular log sheet?
A. It's
dated the 3rd of April 1993. It's --
Q. Is
that -- is it your log sheet?
A. It's
a copy of my -- my log sheet from that day.
Q. Is
the call or the visit to Ms. Thompson's residence that you made that day
recorded on your log sheet?
A. Nowhere
on the log sheet.
Q. I'd
like to direct your attention to further down that particular log sheet. Did you respond to a call at 2100 hours?
A. Yes,
I did.
Q. And
where was that call to?
A. It
was at 600 Power Avenue, which is off Highway 23 in Buford.
Q. I'd
like to show you what has previously been marked for identification as
Defendant's Exhibit 73, and ask you if you recognize that?
A. This
is a Gwinnett County police services incident report. It's what you write your information on -- when you say you want
a report written, this is what it would be written on. Data is gathered to either send to
detectives or decide what they want to do with it, but this is -- this is one
that I had written from that date pertaining to that call.
Q. All
right. Is the address that you
responded to on that report?
A. Yes,
it is.
Q. And
is that -- was that report in your car at the time of your arrest?
A. That
I -- it was -- I started writing -- writing the report, and it was either put
in my briefcase or my clipboard, and that's the last I saw of it. For whatever reason, it didn't get turned
in. I -- wherever they found it, I have
no idea.
Q. Okay. So it wasn't ever turned in?
A. No. It was -- according to the log sheet, I
wrote a report, but according to here I never turned it in, but I recall this
call specifically.
Q. And
do you recall Officer Reddy's testimony --
A. Oh,
yes.
Q. --
as to responding to that call that same day also?
A. Yes. Oh, yes.
MS. ROGAN: Your Honor, at this time I'd like to tender
in evidence for the record Defendant's Exhibit 73.
MR. PORTER: No objection, Your Honor.
THE COURT: Let me find my notes first.
MS. ROGAN: I believe it was previously identified but
not tendered. Or it may not have been
identified is probably what it was.
THE COURT: I show 73 as being admitted. What do you show, Mary?
MS. ROGAN: I thought it hadn't been identified yet.
THE COURT: Defendant's 73.
MR. PORTER: I'm not keeping track, Your Honor, but I
believe that's correct as to the three reports.
THE COURT: Mary, do you show it being in or out?
THE REPORTER: I show it being in.
THE COURT: I do too.
It's been admitted. Go ahead,
please.
MS. ROGAN: Okay.
That's fine.
BY MS. ROGAN:
Q. And
I'd like to show you Defendant's Exhibit 71, which I believe has been admitted
--
THE COURT: It's in.
BY MS. ROGAN:
Q. --
and ask you if you can identify that, please?
A. This
is the incident report that I was referring to that Sergeant Stone suggested
that I write. This is the -- pertaining
to the incident at 1402 Craig Drive. I
had just about finished it when I was interrupted in mid-sentence for some
reason, and it was never completed.
Q. Is
that the report that you began that day at Sergeant Stone's urging and never
turned in?
A. Yes,
this is -- while we were sitting in the middle of Hillcrest Drive. This is the report.
Q. Are
there some errors on that report?
A. Yes. I see -- I see one. It's not a supplement. Excuse me.
That -- that -- that's not exactly wrong. If this had been a completed report, that X would be correct
because all the data would've been on a supplement. That's to let whoever in -- because my motto is if I have to write
a report, somebody's going to jail, and this case, I don't care that she didn't
want to prosecute him or not, since I was going to have to go through the
effort to do the paper work, she was -- he was going to be investigated for
stealing the money and --
Q. Did
you indicate on that report that --
A. Yes,
I did. Yes.
Q. --
the victim would prosecute?
A. Well
-- yes, I did, I think. Let me read it
and see. [Pause] Yes, I did.
I checked on there victim will prosecute.
Q. And
is the date on that report correct?
A. The
date of the 3rd, the day I wrote it?
Q. Yes.
A. No. It's -- it's dated the 4th.
Q. Do
you recall whether you wrote it on the 3rd or on the 4th?
A. This,
I wrote it on the 3rd, because I -- I recall sitting in the car talking to
Sergeant Stone writing -- writing this cover sheet, and the information at the
bottom -- it has numerous lines of data that you can check to create the
situation -- to pass on the situation involving the circumstances. It has 'will the victim prosecute.' Her waffling on prosecuting, not -- wanting
her money, I took that to be if I'm going to write a report, somebody's going
to be investigated, because right underneath it you see, checked in the 'yes'
position, uniform follow-up, and that means that if a officer was to come out
and follow up the investigation pertaining to CID, it would be available. Photos, no.
No photos taken. ID call, no. 'Forward to CID' means when the records
clerks see this they know to send it to criminal investigations department for
prosecution, I hope. But for some
reason it was not completed.
Q. Was
it also in your car at the time of your arrest?
A. It
would've been there --
Q. To
your knowledge?
A. --
to my knowledge. It would've been --
either been in the briefcase and/or the pursuit pack, the big, large metal
clipboard where I kept the records.
Q. Let
me draw your attention again to the log sheet that you have in front of you,
State's Exhibit 77. Is there anything
unusual on the front page of that log sheet?
A. For
me? No. For --
Q. For
someone who's filling out his log sheets correctly?
A. For
-- it depends on who you ask. For
standard operations, I'd guess it'd be declared rather odd because the times
are not consecutive, but --
Q. In
what way are they not consecutive?
A. Well,
I, as opposed to other officers, do not put fill-ins, where you make up calls
for where you're not at. I just list
what I have, just a matter of fact. For
instance, I -- there's one, two, three, four, five, six, seven, eight --
there's eight calls for this date. Or,
excuse me, there's seven calls listed for this date, and I just listed all
seven calls on there for -- one's at -- one's at 4:20 to 4:30. Then the next one's at 5:45 to 6:00, and
the next one is 8:30 to 8:45. The next
call is listed at 9:00 o'clock to 9:20, and then the next call is back to 8:50
to 9:00 o'clock. And then the last call
entered on the log sheet is 7:00 o'clock to 7:10. Now, I translated this from military time to civilian time, so --
for the jury. But what it tells me is
exactly what I did every single day that I filled out a log sheet. I sat in my car at the end of the shift and
wrote down the calls to the best of my memory, and that's why I have
non-consecutive numbers. It -- if I'd
sat there and wrote every one as they went -- as they came in, they would be in
order, so --
Q. And
on the back of the log sheet, Mike, is there a summary of your activity for
that day?
A. Yes,
there is.
Q. How
many general calls does it indicate you responded to that day?
A. Total
general calls responded to is five.
Q. And
how many field case reports written does it indicate that you did that day?
A. One.
Q. I'd
like to draw your attention next to April 4th of 1993.
A. Okay.
Q. The
following day. What happened on that
day?
A. It
was a routine Sunday day. I come in to
work. We were -- Sergeant Stone was in
his office, our office, where we have roll call. We were only like five strong on the evening shift, so we sat in
a small office there, and I come in.
Sergeant Stone has a message for me.
It was a relay message from Sergeant Winderweedle, who testified to the
small stickum note about the -- to call Emogene -- it said to call Emogene
Thompson, which was not unusual because I had -- with my contacts with the
community I had always had messages like that, so I remember getting -- I came
in, and I had my clipboard and stuff, and I sat down at my little desk, and
Sergeant Stone was on the phone, and I either went to an office next door to
use the phone or went into the regular uniform office and used the phone like
Sergeant Stone testified to. He saw the
light come on. I attempted to call Ms.
Thompson to find out what it was that she needed.
Q. Did
you reach her?
A. No,
I didn't. The line never picked up, for
whatever reason, nobody home or whatever.
But this -- this -- this is transpiring at roughly 2:00 o'clock in the
afternoon. She had called earlier in
the day on day shift when nobody was around but Sergeant Winderweedle, so it
had been a couple of hours since I had -- she had called, so --
Q. What
did you do after that?
A. Well,
after that I -- like I say, I had business of the day, other stuff going
on. I had lots of other stuff I was
working on. I believe I went to another
call pertaining to something about a car, Highway 23 and Lee Street, but as per
Sunday afternoon rituals, especially in the springtime, we sort of drift
towards the lake to -- because Buford is pretty much a tourist town with the
lake being there, and we sort of all drift that way after we eat. Well, I had -- was out that way, so I went
into Ms. Thompson's subdivision because it was on the way the way I was going,
because I like doing business eyeball to eyeball when I deal with folks, and
that's just my habit.
Q. Did
you -- did you visit Ms. Thompson that day?
A. I
recall it because coming into the sub- -- I came in off Hillcrest from Highway
20, and I turned -- I turned on Hillcrest from 20, and it's -- it's a trailer
park community. It's been there for
quite a while, so I know the streets real well. A guy in a red Jeep blew the stop sign on -- right in front of me,
and I was within sight of Ms. Thompson's house, and I couldn't let him go with
that, so I pulled him over, went out on the radio, because you never know if
you -- complacency kills, and it may have been nothing or something, for
whatever reason, but I went out on the radio and told radio I was stopping this
vehicle at this location, Craig Drive and Pass Court, and I told him how he
shouldn't do that in front of the police and gave him a verbal warning and put
him back on the street, and I went on.
I was ten seconds from Ms. Thompson's.
Q. Mike,
I'm going to show you what's been marked Defendant's Exhibit 171 and ask you if
you can identify that.
A. This
is a copy of another Gwinnett County public safety log sheet, patrol division
log sheet, dated 4 April 1993. It's a
copy of my log sheet from that day.
Q. All
right.
MS. ROGAN: At this time, Your Honor, I'd like to tender
Defendant's Exhibit 171 for the record.
MR. PORTER: No objection, Your Honor.
THE COURT: It's admitted for the record.
BY MS. ROGAN:
Q. Is
the red Jeep stop that you just described reflected on that log sheet?
A. Yes,
it is.
Q. And
in what way is it identified on the log sheet?
A. It's
-- in fact, it's the first -- evidently, I didn't write down the call at
Highway 23 and Lee Street involving the stranded motorist, because it's listed
as the first call out of the chute.
Again, I was filling it out at the end of the shift, and the first of
the shift tends to be foggy. But this
-- this here lists what's called a 1037, which is police code for a vehicle
stop, routine vehicle stop, but the time listed on here, 3:00 o'clock -- again,
I'm translating -- 3:00 o'clock until five after 3:00, and the tag -- I have
the tag listed down in the location and the status, which was -- Code 20 means
a warning or a ticket issued.
Q. Would
that stop also be reflected on your MDT traffic for that day?
A. Not
on the MDT traffic because I had no -- I knew the guy. He -- it wasn't no grave issue to write him
a ticket or run his tag or run him. I
knew him from the neighborhood, and he just goofed, and that was the end of
it. Wasn't no need to get into any of
that police thing, but he -- I let him -- like I say, I let him go. Now, radio -- radio would've had, I
understand, for thirty days the recording of that.
Q. After
stopping the red Jeep, you said you were within eyesight of Ms. Thompson's
home, and did you meet with her that day?
A. Yes,
I did.
Q. Can
you tell us what transpired at that meeting?
A. Like
I said, I was just a hundred yards from her house, and basically I just rolled
up into the front of her house, still facing straight down Craig Drive. She was on the front porch or she was
standing at the door. I do remember
this because the neighbor, Ms. Amy Parker, came running out of their trailer
and waved and said, 'Hi, Mike,' and I waved at her, and Ms. Thompson steps out,
and all -- because we all -- me and her did all our conversation out on the
front porch that day, and basically she just wanted to reiterate that she
wanted to -- wanted her money and wanted to know what she could do, and I
believe that day was the day that we got into more detail of me suggesting what
-- what particular way to go to bluff Mr. Thompson to get him to hopefully do
the right thing.
Q. What
did you suggest to her would be an effective method of bluffing Mr. Thompson?
A. My
main thing was to tell what I used previously on other calls dealing with dopers
was to tell him that an arrest was imminent, that we were fixing to lower the
boom on them and put them in jail, and that usually prompted them to some kind
of reaction. And seeing as how she was
-- she knew all the details of this, I figured, and knew him better than
anybody, tell him that we're going to arrest him, tell him there's a case being
worked up now, tell him that we recovered drug money in a raid at Carlstown and
crack town that had -- that come from her, and he -- the dopers have identified
him as spending it over there. Tell her
-- tell him that we traced the money bands from the bank that we just found at
a crack house. Just tell him anything
just to spur some kind of something out of this passive resistance he was
in. And I was there no more than just
ten minutes tops, and then I'm gone again.
Q. And
the following day, April 5, 1993, did you have occasion to see Michael Thompson
that day?
A. Yes,
I did.
Q. And
what was the context of your meeting with Michael Thompson?
A. She
told me that Michael Thompson -- well, back up to the 4th a second. She told me -- I remember -- I remember her
telling me where he works, at the Subway, and I told her that if I encountered
-- if we crossed trails any way, any form or fashion, I would have a heart-to-heart
with him and see what would happen. If
anything came of it, I would call her, and she gave me her -- the phone number
there, and I wrote it down. I wrote it
down, and then I wrote it on one of my many forms that I write daily
intelligence down and put it somewhere.
Well, on the 5th, it's suppertime.
I'm going out to Buford Mall to the Golden Buddha restaurant to eat --
Q. Can
I just stop you for a minute. When you
say suppertime, what time of day is that?
A. It
was about 6:00 to 8:00 o'clock. It was
-- it was 7:00 o'clock --
Q. Okay.
A. --
roughly. I go out -- well, let me
describe it for the jury for those that don't know. The Golden Buddha in Buford is located at Buford Mall and Highway
20. It's an L-shaped mall. The Golden Buddha Chinese restaurant is in a
corner, one corner, and the Subway is in the upper end. It would be the northern portion of the
mall. Well, the parking is such that I
parked right in front and split the difference in between them. I looked over at the Subway, and I see
Michael Thompson sitting in a booth looking at me. Well, what better opportunity than right now. There he is. I told her I'd cross trails with him. Well, I walked up there, and he acted like he didn't see me, and
I knock on the window and said, 'Come here,' making -- he walked outside, and I
told him, I said, 'Look, Bud, I've got a case pending against you. I'm fixing to put you in jail, your doper
friends in jail, everybody's going to jail, and I'm going to let the judge sort
them out, and the only thing that's going to stop this is you doing the right
thing and giving your mama back her money.
Now, what's it going to be?' And
he -- just passive resistance again. He
didn't acknowledge one way or the other, mad or not, so I've done all I can do
now. I went to eat supper.
Q. Next,
I'd like to take you to April 8 of 1993.
You've heard testimony from Cassandra Rice and from Monica Hack
regarding telephone calls in an incident at the gym and a telephone call that
you made relating to that. Can you
explain to the jury what that was about?
A. Well,
I'll have to give a little brief background on why all this came to be. Sometime earlier than April the 8th,
probably March or sometime, I was at my gym.
One day -- I don't recall exactly what day it is -- Investigator
Browning from Gwinnett County intelligence unit and a special agent
investigator Yeager from the FBI came into my establishment and -- which was
not uncommon for detectives or special office people to be coming to talk to me
because I was the liaison with the community.
Well, this particular day they come
in and they're asking for help. They
want me to help investigate the -- they allegedly wanted me to help investigate
this -- this individual who was considered quite -- quite a unique character,
and the FBI was interested in him, and they knew that I had random contact with
him, not quite often, but I ran into him pretty frequently. Well, and they said -- basically, all it
was, they told me the contents of the investigation and what I was needed to
do. I remember distinctly telling them
I would not go wear a wire on this individual because he was extremely
dangerous, and it was a -- it was a -- there was a little meeting there, and we
talked about this, and then they left.
And nothing was ever -- I told them whatever contact I'd had I'd pass on
to Investigator Browning.
Now, April the 8th rolls
along. It was just a typical ordinary
day at the gym. I had to work that day
-- no, I didn't have to work that day because I was there in my truck. I didn't have a radio. That was part of the problem. I'm standing there. Cassandra's working out with Val, another
female. I'm training them. We're working out. I remember Cassie getting my attention. Somebody walked in. I
don't hear so well, and I didn't hear anybody come in, and she looked up, and I
turn around and there's this individual standing there. He snuck in somehow, and he's standing
there, and he's holding an envelope, large envelope, bulky with something. But he had a T-shirt on, jeans, so I wasn't
really concerned about a weapon because he was -- he had no capability to hide
it.
Well, I excused myself from the
ladies, and I went over there, and I asked him -- he said what he wanted, and
he said he needed to talk to me. So I
went in -- I asked him into my office, but as fate would have it my recording
devices were broken that day. He -- I
was unable to activate them, so he comes in, and I say, 'What's up?' You know, I'm thinking -- already thinking,
well, what does this guy want so we can go to Browning. He flops this large envelope down on the
table, dumps it out. There's -- there's
bundles of money, currency, U. S. currency.
I'm sitting at my desk going 'nice, this is impressive, what's the story
of this,' while he's -- he's not really telling me what he's got it for or what
he plans to do with it. He just says --
he just -- I don't even -- I don't understand why he's even showing it to me,
first off. He -- I was the whole time
looking at the money bands because the money bands had distinct where they came
from, the date they were acquired by somebody, and I was logging all that down
to give to Investigator Browning or Special Agent Yeager. Well, he -- like I said, he poured it out
there, and I sat there and tried to do that -- that undercover thing, you know,
and just 'excuse me a minute, the girls want me out here.'
So I went out, and I took their
training schedules, and I wrote a note on there to Cassie, I said, 'Call this
number and ask for Investigator Browning.
Tell him this subject is in the gym at this time with a lot of
money. Do something. Be en route --' he was only a mile or two from
the gym -- 'have somebody en route, but come over here now.' Well, at the time I didn't know that she
couldn't make contact because he only -- he stayed maybe five or ten minutes,
but the highlight of it was, he -- he never really explained where he got the
money or what he had the money for.
I asked him, trying to do an
interrogation on him, I said, 'What did you have the money for?' And he says, 'Well, I got a couple of jobs
to do,' meaning he could've had -- build a house for somebody or be a hit man,
for all I know, but he perceived himself to be a hit man. That's why the FBI was investigating
him. And I didn't -- odd behavior, but
not too odd for him. And he left.
Well, as quick as he left, Cassie
came up and said, 'I couldn't get in touch with anybody.' No answer, as Sergeant Winderweedle
said. Nobody's at the precinct during
the daytime. This was around
12:30.
Well, I started calling, trying to
find Browning. I had his beeper
number. I beeped him. No response. I called -- I forget the list, the actual list. I called headquarters looking for them. I called the criminal investigation
department looking for somebody to tell this information to. I called -- I called -- somehow got sent to
internal affairs, which they were familiar with the subject also. So I ended up speaking to Monica Hack, who
testified earlier, and for lack of anybody else, I said, 'This yo-yo was here
saying and doing this. If you see
Browning, have him contact me ASAP.'
And I even tried to call Lieutenant Powell that testified yesterday, but
I couldn't reach anybody.
Q. Did
you feel you had reason at that time to take this person into custody?
A. No,
none whatsoever.
Q. Did
you subsequently report what you had observed and done to --
A. Outside
contact with Monica Hack in internal affairs?
Q. Yes.
A. Yes. I met with Greg Browning a day or two later
and reported it.
Q. Next,
Mike, I'd like to turn to April 15, 1993.
Did you communicate with Sergeant Stone and Officer Reddy during the
afternoon of that day via your MDT computer?
A. Quite
often. Yes. Quite often.
Q. Do
you remember a specific communication regarding the fact that the Testron had
arrived?
A. Yes.
Q. And
as that day progressed, what did you do during the early evening of that day?
A. Well,
it was a routine type day for the most part.
Nothing -- no extraordinary calls like a possible hit man coming into the
gym or nothing like that. It was a --
it was just very routine. We had foul
weather coming in. It started about
four or five o'clock. We monitor -- all
three of us happen to listen to WSB radio, and they keep you apprised of the
situation pretty well, and the warnings were starting to roll in, and as
weather rolls in, generally, the alarm calls started going off due to the wind
and the lightening. But this particular
afternoon there was more wind starting off than there was too much bad
weather. It was just go and handle and
go and handle. That was the early part
of the evening.
As the evening progressed -- as the
evening progressed, I was at a call at the Wal-Mart at Highway 20, and I
received a message from Stone or Reddy, I forget, telling me they were on Main
Street in Buford at the church -- it was a common meeting spot because you
could observe all the comings and goings of most of the people in town -- to be
en route over there. So I did.
And I went to the church to meet
with them, and I arrived -- I arrived -- I got to the church. Stone was at the church. Sergeant Stone was at the church. I arrived, he was there, Reddy was not
there. Reddy was out answering a
speeder call, which was -- Vintage Lane was just across the railroad track
within sight of where we were meeting.
He was chasing that guy around trying to find him. We never could find this guy. We called him the Buford screamer. You'd hear his tires, but you never could
tell where he was at, only that he was in the area. But we holed up right there for -- for a while, and mainly just
sat and looked at the sky and listened to the warnings and contemplated our
next move, whatever it may be.
Q. What
was your next move?
A. Well,
I don't recall. I think the person who
actually decided for us to go to the firehouse and barricade with the firemen
was a fireman himself. We were sitting
at his church, at this church, and it was after eight o'clock, already after
eight o'clock. We're sitting at this
church, and a church deacon came out who we knew as a church deacon, who
happened to be a Gwinnett County fireman also.
He comes out, he sees us, he knows us, he comes over and starts
talking. Well, I guess the fact that he
was a fireman put the message in our brain cells to go be with the firemen, so
who made the suggestion, I can't say, but we saddled up and we went that way
towards the firehouse.
Q. And
about what time did you arrive at the fire station?
A. I
would say about 8:30.
Q. And
what did you do when you got there?
A. I
went to my assigned spot in the firehouse.
I have a chair -- I always, as typical police fashion, I cram myself in
the far corner even in a safe location so I can see both exits, and I always
sat there, and I plopped down in front of the main TV in the main lounge,
because I -- until testimony here, I didn't realize there was other parts to
that firehouse other than there's the bunk area, a lounge and the bay.
Q. Did
you see the pictures we introduced several days ago --
A. Yes,
I have.
Q. --
of the activity room, I believe it was called --
A. Right. The day room, they call it.
Q. The
day room. Is that the room you're
talking about where you were?
A. Yes. It has quite comfortable chairs in there and
--
Q. Were
you in the habit of going to the fire station?
You made reference to your -- your chair.
A. Yes. My -- I had a habit of going to -- in fact,
I would usually take my lunch break there.
Especially around dinnertime when I knew food was on the table, I'd
always tend to show up and eat with them.
But I've even gone as far as to -- at the time of April of '93, I was
into then a seventeen-monthlong body building program, and I was having to eat
quite extensively and lots of meat, and the firemen loved to cook out, and I
would usually show up about the time they had to cook out, and I'd throw me
something on the stove too, and I generally made myself available at eating
time, suppertime. And on Saturday
nights, just about always I would take my supper break to watch COPS on TV.
Q. What
-- were you watching TV on this particular Thursday night?
A. Yes. Yes.
Yes, we were.
Q. What
was on?
A. It
wasn't the Terminator. I know
that. But it was -- it was broadcast
TV. It was -- the reason I say it was
broadcast TV, the little warning labels in the corner that they -- that
broadcast TV gives off the -- telling the public what's going on in the
community, I remember that. The TV, it
could've been -- it could've been anything.
There was one or two movies that was on broadcast TV because it went off
at ten o'clock.
Q. These
warnings that you're talking about, what did they refer to?
A. Well,
a standard weather warning at the bottom strip, teletype strip, and then a map
of the areas affected by the warning.
The weather between 8:30 and ten o'clock had gone from bad to
worse. There was a tornado warning,
which means something's on the ground, and it was -- I recall it being in
Forsyth County, and we were getting concerned because we're only a few miles
from Forsyth County, and that was the whole reason for being at the
firehouse. What better place to be,
with a bunch of rescuers if we needed rescuing, but that was --
Q. Were
you making fun of Officer Reddy that night?
A. Yes,
which is pretty typical.
Q. Why
were you making fun of him on that particular night?
A. Well,
they -- the public broad- -- broadcast TV had beeped in for their tornado
warnings. They flashed a little map of
the metro area, and Gwinnett County was now involved in the warning or whatever
type emergency it was, and for whatever reason somebody made the comment,
'There's -- well, it's us now.' And
Reddy says, 'No, we're all right.' I
said, 'No, no. We're in the red. We're affected.' 'No, you're wrong.' And
banter like that went back and forth.
Finally, it escalated to the point where I got up and went to the TV and
pointed to it, and he went -- he got up and went to the TV and he put his
finger on who knows what county, what state, but he -- I remember taking his
finger and putting it on Gwinnett County and him saying, 'Oh, yeah, that's Gwinnett
County.'
Q. Did
there come a time when you left the fire station that evening?
A. Yes.
Q. Okay. And when did you leave?
A. The
movie that was on on the broadcast -- not the cable, Cinemax, HBO or anything
else, it was broadcast -- it went off a little before ten. When the movie went off, I got up, put on my
raincoat, and started out the door.
Reddy asked me, 'Where are you going?'
I said, 'I gotta go check on Van man.'
I called Van Parker, who testified the other day, Van man or -- and he'd
say junior. I said the Van man, and
that was my routine was to go by there at ten o'clock every day and see if
everything was all right, pick up the day's receipts, and then go on.
Q. And
did you pick up the day's receipts that day?
A. Yes,
I did.
Q. Did
anything happen on the way to the gym?
A. Well,
in trying to recall the -- and separate the investigation from the actual
night, on the night of the 15th I was either walking out the door or just in
the car or very -- just very soon after leaving the firehouse, I received a
call at Arden Drive. It was a 39 or a
23 slash 86, which is information on disorderly juveniles, domestic situation
-- what else? Vandalism, yeah. A low priority.
MS. ROGAN: Just one second and let me get this marked.
[The document was marked for
identification by the court reporter.]
BY MS. ROGAN:
Q. Mike,
I'm going to show you what's been marked for identification as Defendant's
Exhibit 172 and ask you if you can identify what that document is?
A. Yes. I've seen them before. It's a radio dispatch log sheet that they
keep in the communication center at headquarters.
Q. And
what date is that for?
A. It
is dated the 15th of April 1993.
Q. And
is the Arden Drive call reflected on that sheet?
A. Yes,
it is.
MS. ROGAN: Your Honor, at this time I'd like to tender
Defendant's Exhibit 172 in evidence for the record.
MR. PORTER: Technically, the foundation has not been
laid, Your Honor, but the state has no objection.
THE COURT: Defendant's 172 is admitted for the record.
BY MS. ROGAN:
Q. I'd
like to direct your attention to the Arden Drive call and the signals you were
just discussing. Can you tell us,
please, what the signals are that are indicated on that sheet?
A. It
says under the signal call, and it says 39 slash 23 slash 88.
Q. And
do you know what those signals refer to?
A. According
to the communications code at the time of 1993, it would mean -- a 39 is
information for officer, a 23 is disorderly juvenile, I believe, and an 88 is
vandalism.
Q. And
I believe you mentioned before that that was a low priority call?
A. It
-- it can be. Most generally -- in
fact, most of the time when -- anytime a 39 would come out, I -- if I was
anywhere near a phone, I probably would have called.
Q. Would
you have been authorized to telephone in response to that signal rather than
responding in person?
A. Oh,
sure. Absolutely, because most of the
time you're just transferring information to whatever question they have to
whatever situation. You just tell them
the legalities of it pertaining to the police.
MS. ROGAN: Mr. Moore, can you assist me for a moment.
MR. MOORE: Sure.
[Pause in proceedings while counsel
positioned a demonstration board before the jury box.]
MS. ROGAN: Mike, could you come down from the stand for
a moment.
[The witness stepped before the
jury box.]
Q. I'd
like to have you show the jury where the various places you've been talking
about are. If you'd start out with the
precinct and the fire station where you were.
A. Can
everybody see? Okay. This is Buford Highway, Highway 23, located
right here at the corner of Highway 20 and Highway 23. This large gray area is Fire 14, which is --
the fire station and the precinct share a building, and that is where -- we
were there that night.
Q. Okay. And then from there you went to your gym?
A. Yes.
Q. Would
you show the jurors where your gym is on that map?
A. It's
located at the corner of Gwinnett Street and East Moreno, right up here in main
town -- main downtown Buford.
Q. Okay. And where is Arden Drive?
A. And
Arden Drive is located way over here at Pebblebrook subdivision off Thompson
Mill Road up near the Hall County line.
Q. And
can you tell us on that map where the Gwinnco Muffler Shop is?
A. Okay. The Gwinnco Muffler Shop would be
approximately right here between Pinecrest and First Avenue, in this area here
closer to Pinecrest, south of Highway 20.
Q. Thanks. You can take the stand and if you'd move the
podium back.
[The witness returned to the
stand.]
MS. ROGAN: That's fine.
BY MS. ROGAN:
Q. Who
did you deal with when you arrived at -- well, tell us about going to Arden
Drive.
A. Well,
on the trip over there it was raining heavily.
Now, I knew Van would be at the gym until approximately ten o'clock, and
the low priority call, I just went on -- it's on the way to the Arden Drive
call, so I went, turned left out of the firehouse onto Highway 23 northbound on
Buford Highway, drove to Lee Street, which is the main road that goes into old
town Buford, I turned left, went up old town -- old Lee Street, come to Moreno
Street and turned right, went down Moreno Street to my gym, which was located
off the town square. I pulled up front
-- there was still cars out front. The
gym was still open. There were people
working out, and I remember en route from the firehouse to the gym I was in
communication with a detective about a armed robbery -- no, excuse me, not
armed robbery, a purse snatcher that we were hunting that week, and he was --
we were passing information back and forth, and he wanted to know if I had
found her, and I told him I was still hunting her, and he told me that the
warrants -- that when I found her the warrants would be on his desk, and the --
such as that, you know, just general traffic like that.
Q. Is
that the Peaches you referred to on the video?
A. Peaches,
yes. It was a -- it was -- that's
right, Peaches in the video. But the --
I conversed with the detective probably just, you know, about four or five --
back and forth like that, you know.
When we got the information passed on, that was it, but I may have even
been sitting out in front of the gym during my last traffic with him when he
said that. And then I got out. I went into -- I had my raincoat on. It was pouring down rain. I went into the gym. Van was there and a female gym member was
there, and they were sitting in the office there, in my main office area that
overlooks the gym, which is where he usually sat, and they were watching a
movie on TV. I don't recall that movie
either. But I just went in, said hey to
them like I do every night. The money
bag was sitting on the desk. I grabbed
it, and right back out the door I went.
Q. And
then you proceeded on to Arden Drive?
A. Right.
Q. And
what happened when you got to Arden Drive?
A. Well,
it's around ten o'clock now. It's
around ten o'clock. I'm -- or a little
after ten. It's -- like I said, it's
raining. It was raining hard. I'm -- well, I can retrace my route. I went up Moreno Street to Hill Street,
turned right on Hill Street and went down to Highway 23, Buford Highway
again. I've just made a little
loop. And on Buford Highway I head
northbound towards Hall County to Thompson Mill Drive -- Thompson Mill Road,
rather, turn right, I go towards Pebblebrook subdivision. Now, the first road off Thompson Mill Road,
I don't recall the name of it, it's been so long, but it was the first left,
and I turned up that street, followed it on around, came to Arden Drive.
Arden Drive is a very long
road. It comes around like this. And I turned on it and started searching for
the numbers for the call, and as my usual self, I always have radio repeat
stuff for me all the time because I don't hear so well, and this particular
time, probably because I was going so slow, because you have to really creep
along Pebblebrook. The houses are very
close together, the numbers are very small, if at all. They don't comply with the ordinances. They don't have -- most of the houses don't
have a house number, and it was raining, and even with my glasses I couldn't
really see because on Arden Drive, once you come down on the north end of it,
there are no houses on the left.
They're all on the right. So
it's like this. You have to really look
and creep along.
And I -- I remember calling radio
on the MDT -- one of the things about policing is you never want to admit that
you're lost. It's a male thing
too. But I was lost. I couldn't find it. So I asked radio, I said, 'Please repeat the
numbers,' which they did a minute later, and by that time I'd already come to
the end of Arden Drive and had turned around, and now I had the house numbers
on my left, so I could -- a little bit closer, and I saw -- I saw the house I
was looking for. By that -- it was
eleven minutes after ten by then, and I told radio thank you and then went in
and handled the call.
Q. Who
did you deal with at the call?
A. I
dealt with Ms. Perdomo, the woman of the house. I don't really recall Mr. Perdomo that much or much conversation
with him.
Q. Was
there anything that you could do for them that night?
A. Well,
Pebblebrook subdivision is one of my neighborhoods that I've been in -- I've
been in and out of many, many times. I
know all the kids in the neighborhood.
I know where they play basketball, and the problem that night was a --
the way they told me was some of the kids -- there was something about the kids
were going -- arguing back and forth, blah, blah, blah. But I told them that I would come out the
next afternoon while the kids were playing basketball, where they always play
in the street, and have a heart-to-heart with them and see what the deal
was. And they were happy, I was happy,
and I left ten minutes later. I do
recall before I left, I don't know why, I ran a tag while out in front of their
house, too, of a car that was parked on the side of the road. It was -- I've come to find out later on
that was at twenty-two minutes after ten.
Q. How
did you find that out later on?
A. Reading
the MDT traffic because it records the times -- every time you mash 'send,' it
logs in the time, who sent it and the time, and there it was. As I usually do on calls where I see
suspicious stuff, I ran that tag.
Q. And
where did you go after the Arden Drive call?
A. I
was -- I retraced my route out of the subdivision. This time I went -- the way I went out, the Thompson Mill
Road. Now it's getting towards
10:30. My routine was to arrive at the
precinct at 10:30 before the next shift went on duty, to pass on anything that
had passed on that day or to get the jump on going home, and this particular
day I went back to the precinct as usual, straight back from the Arden Drive --
Arden Drive call, and the morning watch was in the -- they do their roll calls
in the big roll call room, and I sat down with them and I talked with them. Nothing out of the ordinary. They went on duty; we went home.
Q. On
your way home that evening, did you have MDT communications with Officer Reddy?
A. Yes. All -- nearly always we go home -- we go the
same direction home. He lived in
Snellville; I lived in Grayson -- or Lawrenceville, rather, Grayson
Highway. We were usually, as always,
tailgating one another going -- coming down Highway 20, and that particular
night we were on all-county scan, and radio gave a lookout on an armed robbery
that had just occurred at a Little Caesar's somewhere on Jimmy Carter
Boulevard. What struck me -- well, not
uncommon, but what struck me odd was there was a machine gun involved, and I
started tapping in -- we communicate back and forth like that, and I started
telling him or asking him about if he heard it, and that was -- that, and we
picked on Bob Yonker, as we usually do, in going home. That was all the traffic there was.
Q. Did
you have a nickname for Bob Yonker?
A. I
called him Bab. We referred to him --
Q. Why? What does that mean?
A. Because
he's from Wisconsin, and he had that distinct -- I don't know. It was the way he talked.
Q. When
did you arrive home that night?
A. I
arrived home -- I arrived home -- I don't know exactly what time, but it was
well in time to watch the weather on the broadcast news on a local channel, so
I did see the news and then that was well before 11:30. We usually arrived home within fifteen
minutes after leaving the precinct.
Q. I'd
like to take you next to April 16 of 1993, the following day.
A. Right.
Q. Did
that day begin as an unusual day for you?
A. No
more than any other -- any other Friday.
Just got up, got -- had my eight hours, got up and got ready to go to
the gym. See, I have to drive the car
to the gym -- dress in police clothes, drive the car to the precinct, change
into gym clothes, drive my truck to the gym, because the rules are you have to
-- you couldn't be driving around in civilian clothes in the car, so I had to
-- it was kind of an aggravating thing, but I always had to do that.
Q. Did
you make a stop at the bank that day?
A. Sometime
during that day, I did.
Q. Did
you deposit --
A. I
had the receipts from either the following day or a combination of a couple of
days. I don't -- I don't recall how
many days it was or what. I did --
Friday, I always go to the bank.
Q. Did
there come a time when you learned that there had been a homicide in Buford
that following -- that previous night?
A. Well,
I heard it on -- I heard it on the broadcast radio, I believe. I -- I recall -- I recall that. And then at the gym. Reddy was there. Stone had already left. We
talked -- we knew there was a killing, but we didn't -- you know, it's not that
uncommon. I mean for Gwinnett County
it's fairly rare that -- but, you know, it's not that uncommon, but we knew
there'd been a killing. We didn't know
who it was. Stone had already -- he
leaves the gym -- he works out, and he goes in early. He likes to be there at 1:30 or one o'clock. Well, Reddy and I were working out that
day. Cassie was there, and some other
people were there. Well, Stone calls
back from the precinct, and he tells me that it was -- Ms. Thompson was
involved in it, she's the victim. And I
told Stone then that, you know, that's the same Ms. Thompson from a week or so
earlier that we -- I was out on the call at.
And he said, yeah, he thought he recognized the name, blah, blah, blah,
and he said -- I told him I'll be there as soon as I can, and then I left. Cassie was there, so I just immediately left
and went to -- to the precinct.
Q. And
who did you speak to when you got to the precinct?
A. When
I arrived at the precinct, Sergeant Stone was already in Captain Cantrell's
office, the precinct commander's office, and I believe Burnette was --
Investigator Burnette was already on the phone, and I just walked in and he
handed me the phone, and I started talking to Jack, and told -- told him
everything that transpired from the whole one hour total of my knowing these
people.
Q. Did
you participate in some of the roadblocks that evening?
A. Yes. Part of whenever you have a homicide like
this where people are, you know, near any kind of high-traveled area, SOP is to
hold a road check to see what people -- because people tend to run in patterns,
and we -- see what -- somebody may have saw something. So I went out there with Burnette, Reddy,
Stone -- excuse me, the traffic units.
Well, uniform's out there, which is standard for road checks. Lieutenant Latty and Jack Burnette were --
had set up a little field op up on top of the driveway, and we started stopping
cars. It was about 8:30, nine o'clock
when we were out there.
Q. Did
you interview people who --
A. Oh,
yes. I stopped them.
Q. Did
you interview anybody who had seen -- who traveled that route the night before?
A. I
remember stop -- I remember talking to at least three or maybe even four people
and physically walking them up the hill to Mr. Latty or Mr. Burnette and
letting them take the information down, and -- they say that they wanted to
keep this quiet as possible, but it was all over. About ten minutes on that road check we knew something was wrong,
very bad wrong there.
Q. You
were getting information that --
A. Oh,
yes.
Q. --
there had been a patrol car sighted at that scene?
A. Yeah.
Q. Were
most of the officers, the uniform officers, you're referring to who were
present that night driving vehicles similar to your unit?
A. Well,
Sergeant Stone, Brian Reddy, the only ones I can account for, we all had the
same type cars, brand new -- then new '92 Crown Vics. The rest of the traffic units, I can't say what they were
driving. They were county cars.
Q. Did
the news travel fairly quickly through the precinct that a patrol car had been
seen?
A. Yes,
almost like it was aired.
Q. I'd
like to direct your attention now to April 18, 1993, Sunday.
A. Uh-huh.
Q. Were
you working that day?
A. April
the 18th? No, I was off that day. I usually -- if I wasn't scheduled off, I
usually tried to take every Sunday I can off to be with the kids and my wife. I think I was off that day.
Q. Was
there an event scheduled for Eren that day?
A. Oh,
that's -- the 18th, yes, there was.
That was -- Eren had a birthday party.
The girls from where she worked were going to put on a birthday party
for her.
Q. What
happened later that evening?
A. Well,
it was probably on into the 19th now, because it was after midnight, so
technically it was on the 19th. I
received a phone call from communications, radio, and at the time they were
either not clear what was going on or what was happening, but they were trying
to tell me that something was going on over at the girl that was giving the
party's house and Eren was there, and I needed to be en route over there and
all this, and I really didn't get a whole lot of information from them. But I knew something was up, so --
Q. Did
you go to that location?
A. No,
I didn't.
Q. Is
there a reason why you stayed home?
A. The
children were there. I don't think -- I
don't think my mother-in-law was in the house that night.
Q. Did
Eren arrive home?
A. Yeah. She arrived -- friends brought her home,
and, basically, I got the gist of it that there'd been an altercation with an
officer, and she was arrested and --
Q. Who
is 'she'?
A. Kierstin. She was --
Q. Did
you know Kierstin?
A. Yeah,
I knew her. I worked part-time at the
restaurant also, security, so I knew most of them.
Q. So
did you learn that Kierstin had been arrested that night?
A. Yes. Yes.
Q. And
what happened when Eren got home?
A. Well,
they had this plan. They were going to
go bond Kierstin out, and I said, 'No, I will go bond Kierstin out. Give me some money.' Because I wasn't -- see, the following
morning, that was the day I planned to buy my T-shirts with the last part of
Dudley's money, and we'd been planning on this for some time, and I didn't want
to give up my -- my plans to bond out one of her friends from jail. But they had passed a hat along or something
and gathered some -- gathered some amount, but it was a wad of -- a wad of
bills, and I left them at the house, and I went -- because I knew the procedure
at the jail, so I went and got Kierstin.
Q. Did
Eren -- did you know how much the bond was?
A. Yes. I -- I paid a cash bond for her.
Q. How
much did you pay?
A. It
was $240, I believe.
Q. And
this wad of cash that you got, what denominations, if you remember, were they?
A. I
don't -- I don't recall. It was just
their money, Kierstin's money, they grabbed before they left, I understand, and
I don't -- I don't -- it was close, but the difference was made up.
Q. Do
you have any personal knowledge as to whether Kierstin paid back the people who
contributed the money?
A. No. My contact with her was interrupted a few
days later.
Q. And
you mentioned the T-shirts. When did
you purchase those T-shirts?
A. It
would be on the same date, the 19th.
The morning was a Monday I went to buy them. I had to -- Captain Davis had told me to come by CID and to help
them with this case at the time, they told me, and had something for me to do,
and I went -- went by headquarters, stayed a little while, then I went on about
my business and went to the graphic screen place and then went on up to -- went
up to Buford to the gym.
Q. Had
you been saving that money for that purpose?
A. Well,
Mr. Dudley's investment was -- it was specifically for that, advertisement, and
that fell into the group of -- buying T-shirts was advertisement because it had
the logo on the front, you know, name, phone number and all that good stuff,
and it was supposed to be part of a promotional, so that was what it was supposed
to be, and --
Q. Was
this intended to generate some additional money?
A. Yes. Yes, because the timing was right for
advertisement, being springtime and summer coming.
Q. Finally,
Mike, I'd like to direct your attention to April 23 of 1993, the day you were
summoned to the police precinct and arrested.
What time had you gotten up in the morning that day?
A. Oh,
I got -- I was pretty routine on my -- I'd get off work at night, I was in bed
asleep by 11:30 or midnight, and then I had to have my eight hours, so -- or I
just fell to pieces, so I had got up my usual time, eight or 8:30, and then
went through my day. That was a
particularly hard work-out day, because Friday was my heavy chest day, so -- in
fact, Reddy and I had worked out that day, and we went on the regular shift,
nine-hour shift, and that was it.
Q. All
right. And when was it that you
received the call to report to headquarters?
A. Well,
as ironic as it is, my last call of the career was a pregnant woman was locked in
a car dealership at Wade Ford on Commerce Drive, and that's where I was at, and
the MDT beeped, and it was a message from Chief Doss telling me to come to
headquarters to meet with investigators, which it was not an uncommon thing,
especially on a Friday night when they had something to do. I had -- yes, I had retired from SWAT, but
it never even occurred to me -- I was still in that frame of mind that they had
a drug raid or something to do. Like a
faithful puppy, I went running down there.
Q. Did
you get the pregnant woman out of the Wade Ford?
A. Yes,
we did. She -- she got delivered
wherever she was going to.
Q. So
did you respond immediately after that to the call?
A. Yes,
no stop, straight down.
Q. And
when you got there, did you make a joke to Lieutenant Latty?
A. Oh,
yes. Yes.
Q. What
did you say to him?
A. Well,
I'm still thinking in an investigative frame of mind that, you know, this is
going to be procedural, as I would on any investigation. I'd been there since ten minutes after the
first car was stopped on a road check, as all the other ones that were
there. We heard what was going on. We knew what was going on. So the process of elimination is what I had
-- because still I'm oblivious to what's fixing to happen here, and I cut --
and I've always cut up with everybody, and I told -- I told Lieutenant Latty as
we went in, and he said, 'Check your weapons,' and I said, 'Yeah, sure, we
can't have suspects walking around here armed, can we? Ha, ha, ha.' And we went on in and --
Q. Did
you expect that they were interviewing everyone from the precinct?
A. They
taught me how to do investigative work, for the most part. I just assumed they were following good
investigative procedure and would eliminate -- I found out later that I was the
only suspect for days on end, so --
Q. Did
you expect that you were going to be arrested that night?
A. Absolutely
not. Absolutely not.
Q. We've
all seen the video and seen the room in which you were interrogated. Can you describe the chair that you were
sitting in?
A. Well,
I haven't heard anybody admit to it, but my experience in law enforcement in
interrogation and interview rooms that sometimes the chairs are altered or
specifically left uncomfortable so to create the atmosphere of wanting to do
anything to get out of that situation, but I don't think it can ever be proved
that that actually goes on, but the simple fact is that chair -- that chair
that I was in -- as you can tell on that video, I'm a fairly large individual
at the time. What you can't tell at
that time that video -- I weighed every single day, and I weighed over 300
pounds when that video was made with the uniform, the equipment, the gear. I weighed 270 pounds bare feet. With all that gear on, I weighed over 300
pounds and plus I have a bad back, just caused me weeks earlier to retire from
SWAT, and it was very uncomfortable, and I was tired from working out all day
and working the job, so, yeah, it was getting tense in there.
Q. Were
you wearing your gun belt?
A. Yes.
Q. The
one you took off at some point during the interview. Is that a heavy piece of equipment?
A. It's
very heavy. That 4506 -- excuse me, .45
is a heavy weapon, and the ammo, I carried extra ammo on it, and I carried
extra equipment on there, so it was -- it was heavy.
Q. The
gun wasn't in the gun belt at the time, though?
A. The
gun wasn't in there, but you're walking around heavy.
Q. And
how long a time was it that you were interrogated that night?
A. Almost
five hours from what I could tell from the timer. I was in -- I was in shock, basically, after the first hour
because the world had done come to an end as far as I was concerned. I didn't know -- I'd never been in shock
like that before, but I -- that was a -- it seemed like an hour; it could've
been five hours.
Q. To
your knowledge, Mike, did anyone from the police department ever personally
notify your family about what had happened to you?
A. Personal
knowledge, no.
Q. Mike,
did you see Emogene Thompson on the night of April 15, 1993?
A. No,
I did not.
Q. Did
you rob Emogene Thompson of the money that had been left in her trailer
following the burglary?
A. No,
I did not.
Q. Did
you kill Emogene Thompson?
A. No,
I did not.
MS. ROGAN: That's all I have of Mr. Chapel at this
time.
THE COURT: How long do you think you're going to be on
cross, Mr. Porter?
MR. PORTER: It's hard to tell, Your Honor.
THE COURT: Will it be a while?
MR. PORTER: It depends on how Mr. Chapel answers.
THE COURT: Okay.
It's not going to be quick, I presume.
MR. PORTER: It depends on how Mr. Chapel answers.
THE COURT: I think before we proceed with that, we'll
take ten minutes. I'll ask you to leave
your pens, pads, notes in your seats.
They'll be waiting on you when you return. We'll take ten minutes and then recommence.
[Break taken]
THE COURT: Is the state ready? Mr. Porter?
MR. PORTER: Yes, Your Honor.
THE COURT: Ready, Ms. Rogan?
MS. ROGAN: Yes, Your Honor.
THE COURT: Bring the jury back, please.
[The jury returned to the
courtroom.]
THE COURT: Proceed when you're ready, Mr. Porter.
MR. PORTER: Thank you, Your Honor.
BY MR. PORTER:
Q. I'd
like to talk a little bit about your training first. As a police officer, weren't you trained that a traffic stop can
be the most dangerous place for a police officer to be, and, therefore, you're
trained in techniques to control people at traffic stops?
A. Yes.
Q. And
you're trained to position your body so that you're behind someone when they're
facing forward, to protect yourself at a traffic stop?
A. That's
correct.
Q. Also,
in regard to your equipment, you were carrying a handy-talkie that night,
weren't you, the night of the 15th?
A. I
was wearing one on my gun belt.
Q. And
that would allow you to communicate with the radio system from almost anywhere?
A. That's
true.
Q. And
so you could have responded to the burglary call on Arden Drive or the
vandalism call, and you could've been anywhere, and radio would've never known?
A. That's
correct.
Q. You
could've even been on Peachtree Industrial Boulevard and radio would've never
known the difference?
A. And
I could not have been also.
Q. Now,
let's talk a little bit about reports.
Nobody likes to write reports.
Police officers don't like to write reports, do they?
A. No.
Q. And
as a matter of fact, you almost -- you in particular had a reputation that you
didn't like to write reports, and if you could get out of it, you wouldn't?
A. That's
true.
Q. And
that's probably the reason that you ran the scams you did because you felt that
if you could resolve the problem without a report, everybody came out a winner;
wouldn't you agree?
A. For
the most part.
Q. And
usually you didn't -- your modus operandi, so to speak, is that when you got
into a situation like you did with Ms. Thompson you would take notes of the
situation on a legal pad or a clipboard, and you'd fill your report out later,
wouldn't you, or at the end of your shift?
A. Sometimes.
Q. So
you didn't normally sit as you sat with a witness and fill out your report as
you were speaking; and, in fact, your testimony has been that you didn't do
that with Ms. Thompson, did you?
A. That's
true.
Q. You're
right-handed, aren't you?
A. I'm
right-handed.
Q. And
in regard to the MDT, when you operate an MDT you punch in information just
like you do on a typewriter, don't you?
A. That's
correct. It has a keyboard.
Q. And
when you need to put a space between words, there's a space bar that you hit
with your thumb, just like a typewriter; right?
A. I
don't recall, but I'm sure there is, yes.
It's a keyboard.
Q. And
you were trained in how to use the MDT?
A. Right. They told us how to cut it on.
Q. And
you would turn -- you would type in whatever you needed, communicate with radio
or with other units, and in order -- and it had punctuation just like a
typewriter; right?
A. That's
correct.
Q. And
when you typed in one word to the next, you would go type, type, type, type,
space, type, type, type, type, space, for the words; right?
A. Right.
Q. All
right. Let's talk -- let's go back to
the night or the day of the 3rd. You say
you responded to Ms. Thompson's residence; is that correct?
A. That's
correct.
Q. And
you were aware that she had money left?
A. That's
correct.
Q. And
you believed her when she told you about the theft?
A. About
the burglary or the theft?
Q. Well,
she thought it was a burglary, and you explained to her that it was not?
A. I
don't recall her thinking it was a burglary, honestly.
Q. But
you believed her to be a credible person when she told you money had been
stolen from her?
A. She
said she had that amount and she had this amount, and I had no way to disprove
her, no.
Q. And
she had no reason to lie about that?
A. I
-- at the time, I would think not.
Q. And
at any time she wouldn't have had any reason to lie about it, would she?
A. I
didn't know her that well. I wouldn't
know.
Q. And
so then you say you left, and Sergeant Stone suggested that you make a report?
A. That's
right.
Q. And
then you wrote what has been marked as Defendant's Exhibit Number 71, and I
believe -- now, this has been introduced as a state's exhibit. You stopped on the side of the road, and you
wrote that report; is that correct?
A. That's
correct.
Q. And
it says in there 'victim wishes to prosecute' and you checked yes?
A. Yes.
Q. But
you've told this jury that's -- your attitude is kind of 'if I have to write a
report, somebody's butt's going to jail, so I always check victim's report'?
A. That's
correct.
Q. Now,
Mr. Chapel, on the night of your statement on April 23, you didn't say anything
about writing a report. You said you didn't
write a report.
A. At
the time, that's correct.
Q. Oh. So now you want to divide it. You didn't write it in the trailer, but you
wrote it a quarter of a mile away, and that's what you meant by your statement?
A. The
night of the statement, I couldn't tell you what I said, only what I've seen on
that video. I have to assume that to be
correct if the video equipment was
operating --
Q. And
you would assume that nine days after the murder and approximately twenty days
after the incident your memory of the events would be clearer?
A. Well,
actually, I told Jack Burnette on the day of the 16th that I didn't write a
report on the -- on the 3rd.
Q. But
you did?
A. Evidently,
I did. I had forgotten about it.
Q. All
right. Now, let me ask you, on -- since
the night of the 23rd, have you ever seen Defendant's 71 in a copy form since
then?
A. [No
response.]
Q. In
fact, haven't you been provided with a copy of every piece of paper that is in
the state's file through your attorneys?
A. A
copy of this, an exhibit from the investigator report?
Q. No,
a copy of your report, of that report you wrote.
A. I
don't recall whether we found this or you provided it, to tell the truth.
Q. But
we have provided you with every piece of paper, haven't we, and you've had
access to that?
A. I
recall locating this report from a photograph taken by my attorneys on the July
28th property review, looking at the photograph of this report and the 600
Power Avenue report and a third report that wasn't turned in. I remember seeing that.
Q. But
you didn't answer the question.
A. I
don't recall seeing a copy of that.
Q. You've
had -- you've had access to all the paper work, haven't you?
A. That
you provided, that's correct.
Q. And
you've had access to every statement; you've had access to all the scientific
reports; you have had access to the MDT traffic; you've had access to the
telephone records; you've had access to all that through your attorneys;
haven't you?
A. That's
correct.
Q. Now,
on the night of your arrest, you didn't tell us about going to Ms. Thompson's
house the next day and stopping a red Jeep, but that's in your MDT traffic,
isn't it?
A. Yes.
Q. And
on the night of your arrest, you didn't tell us about or you didn't tell Jack
Burnette about all the other stuff -- all the other details you've given this
jury here today, but that's all in the documents you've been provided, isn't
it?
A. And
that's on the twenty -- the 23rd of April?
Q. Of
April.
A. No. Actually, I told Jack Burnette on the 16th
about the red Jeep and all that.
Q. You
did?
A. Oh,
yes.
Q. And
Jack Burnette never mentioned that?
A. Well,
Jack Burnette --
Q. And
Jack Burnette was never cross-examined about that?
A. [No
response]
Q. And
so Jack Burnette was never given the opportunity to testify about that?
A. Okay.
Q. All
right. Let's talk a little bit about --
and speaking of opportunities, you heard Lieutenant Powell talk about the
Testron yesterday, didn't you?
A. Yes.
Q. And
you heard him say that your MDT traffic indicates that you sold 184 bottles of
Testron; isn't that correct?
A. That's
correct, yes.
Q. And
you presented evidence to this jury that it was at $38 a bottle; right?
A. No.
Q. Well,
your investigator.
A. My
sale was $30 a bottle.
Q. All
right. $30 a bottle. Now, in fact, how did Testron come packaged
when you got it from Dixie Labs?
A. Packaged?
Q. Eighteen
to a case?
A. Eighteen
to a case, plus the freebies.
Q. And
you got six freebies?
A. Yeah. That's about right.
Q. All
right. Let me show you what I'm going
to have marked, which have already been -- and which are true and correct
copies of documents that have already been introduced.
MR. PORTER: And I'll have these marked as the next
state's exhibits.
[Documents were marked for
identification by the court reporter.]
BY MR. PORTER:
Q. Let
me show you State's Exhibit Number 58.
Can you tell us what that is?
A. That's
a check drawn on Dixie -- excuse me -- drawn on The Iron World Gym checkbook to
Dixie Labs for $239.16.
Q. And
that's for eighteen bottles of Testron, isn't it?
A. Right.
Q. And
this is -- and can you identify State's Exhibit Number 161?
A. It
appears to be a photostatic copy of another Dixie Labs order for -- dated 11/3,
1992, for $139.51.
Q. And
that's for eighteen bottles of Testron, isn't it?
A. Okay.
Q. And
then look at State's Exhibit Number 160.
A. And
that's another photostatic copy of a check drawn on The Iron World Gym to Dixie
Health Lab for $240.00.
Q. And
that's for eighteen bottles of Testron, isn't it?
A. I'll
have to take your word for it.
Q. So,
in fact, you've only had three orders of Testron?
A. From
Dixie Health Labs, that's correct.
Q. Well,
Dixie Health Lab is the only person who makes Testron? Now, there may be other supplements.
A. I
think you're wrong.
Q. Now, if it could be proved that the Testron is solely distributed by Dixie Labs,
you only bought three cases of eighteen bottles, didn't you?
A. That's correct.
Q. And yet you were prepared to sit by and let this jury think that you
had sold 184 bottles at $30 a pop?
A. No. I never said 184
bottles.
Q. You didn't correct it in your direct.
A. Excuse me?
Q. You didn't correct it in your direct. You corrected every other witness.
A. A hundred and eighty-four bottles?
Q. Yeah. The
testimony from Lieutenant Powell was according to his reading of the MDT you
had sold 184, [This is factually incorrect!!!
Go back to Powell’s
testimony] and you corrected
points of testimony of every other witness, and you didn't say anything about
that, when, in fact, you only got three cases of eighteen. You got a total of forty-four bottles of
Testron, didn't you?
A. From Dixie Health Labs, that's correct.
Q. And you were willing to leave this jury with
the false impression that you had sold 184 at $30 a pop in an effort to explain
where your money came from, weren't you?
A. No.
That's not correct.
Q. Now,
you continued to work the case of Emogene Thompson's theft, even though she had
not requested a report. That's your
testimony, isn't it?
A. I
worked the case because she returned a phone call to the precinct for me to
call her. Obviously, she had a problem,
so I did that as a routine.
Q. But
even at that time it's your testimony that she didn't request a report?
A. She
didn't request a report, but she continued to call.
Q. And
so you continued to work it?
A. I
told her I would do what I could do.
Q. Now,
let's ask about the night of the 15th.
You worked that night; right?
A. That's
correct.
Q. You've
already testified to that?
A. Yes.
Q. And
you were driving Unit 197; is that right?
A. Yes. Yes.
Q. That
was the car that was assigned solely to you to which you had sole access?
A. That
was the only car I drove on April 15, 1993.
Q. Well,
it had been yours since October of '92, hadn't it?
A. That's
correct.
Q. And
you were the only one who had access to it, and you had sole possession of
it? You didn't ever lend it to anybody?
A. No,
I never lend it to anybody.
Q. And
in fact, it was against policy to loan your police car to someone else?
A. It's
against policy, that's correct.
Q. And
so from October of '92 till September of '93 or April of '93, you drove that
car?
A. Right.
Q. You
were in exclusive possession of it?
A. Well,
I parked it at the precinct quite frequently, but --
Q. But
you left it locked, didn't you?
A. Not
all the time.
Q. But
nothing was ever broken, nobody ever got into it?
A. Far
as I can tell, no.
Q. And
so that night you went to work at your normal time, and just as Sergeant Stone
testified, y'all went to the fire station about 8:30; is that correct?
A. That's
correct.
Q. And
you say you left at ten?
A. I
say I left at ten.
Q. Sergeant
Stone is mistaken?
A. He's
mistaken, yes.
Q. Firefighter
Peters is mistaken?
A. He's
mistaken.
Q. Van
Parker, who says he didn't see you that night, is mistaken?
A. He's
mistaken.
Q. The
man you mentioned in your statement, Blan --
A. Whatever.
Q. --
Blan Wright --
A. Yeah.
Q. --
where is he?
A. I
have no idea.
Q. The
lady who the first time any mention has ever been made of a female member, we
don't know who she is. Who is she?
A. She's
a female member, Janice Martinez.
Q. Where
is she?
A. I
have no idea. She's not in jail. I know that.
Q. So
all those people who say that you left between twenty minutes after nine and
9:30, they must be mistaken?
A. Well,
they must be.
Q. And
Van Parker, who said that the testimony of his normal, customary closing of the
gym was between nine and 9:30, you're saying it was really ten o'clock?
A. That's
what I'm saying.
Q. Now,
you went out on the call -- you got the call at 9:56; is that right?
A. That's
correct.
Q. And
you went 10-7, which means you're at the scene, at 10:08; is that correct?
A. That's
close.
Q. And
then you went 10-8, which means back into service, at 10:11?
A. That's
what radio recorded it as, yes.
Q. Would
they be wrong?
A. Oh,
absolutely.
Q. You
mean they would be wrong when you call in on a microphone, they receive the
call and made this time stamp?
A. Well,
I didn't call in on a microphone.
Q. You
went in on your MDT?
A. I
conversed with them on the MDT at 2208 -- correction -- 2207. I asked them to repeat the numbers. At 2208 they responded with the
numbers. At 2211 I told them thank you,
and then I handled the call. I was there
ten minutes and came out.
Q. Even
though the records show you were there three minutes?
A. The
MDT shows I conversed with them during those three minutes.
Q. And
you know that because you got an opportunity to review the MDT records in the
last two years, haven't you?
A. Well,
that and Mr. Perdomo's statement, yes.
It takes me more than three minutes to get out of the car.
Q. Let
me ask you about the money.
A. All
right.
Q. During
the week, immediately after the murder, from April 16 through the end of the
month, you made four cash deposits into The Iron World account. Let me show you what's been marked State's
Exhibit Number 50. There's $285
deposited into the account there. Where
did that come from?
A. Probably
from running the gym, I imagine.
Q. So
you made $285 in the middle of the month when your membership dues were due at
the beginning of the month?
A. Oh,
yes.
Q. And
then you've got four hundred and -- you've got three hundred more dollars
deposited on the 16th --
A. Uh-huh.
Q. --
three days earlier. Where did that
money come from?
A. Probably
from supplements and running the special.
Q. And
then on the 29th of that month, you've got another $400 cash deposit. Where did that come from?
A. Same
location.
Q. And
then on the 19th, there's another cash deposit of about $105 including coins.
A. A
hundred and five dollars worth of coins.
Q. And
so you're saying that this gym was just a hobby, and it's making a thousand
bucks a month?
A. Easy,
yeah.
Q. It
was making that much money?
A. Yeah.
Q. In
cash deposits?
A. I
haven't looked at the financial records.
I -- it was making -- it was making enough to pay the rent and all,
yes. We had overhead of about fifteen
hundred, two thousand.
Q. Where
did the hundred dollar bill for the car wash come from?
A. I
have no idea what you're talking about.
Q. You
didn't pay with a hundred dollar bill?
A. No,
I didn't.
Q. So
Ms. Heath --
A. Actually,
I don't recall paying with a hundred dollar bill.
Q. You
don't remember taking your car on the morning of the 16th, having it completely
cleaned and detailed and paying for it with a hundred dollar bill?
A. I
remember going to the car wash due to the fact that I was told that Captain
Cantrell would be riding with me on that night -- having it detailed is routine
-- and then paying the people with whatever I paid them with.
Q. Look
at the defendant's exhibits that you've described as the front of your
car. How big a man is Captain Cantrell?
A. Well,
let's see. He's probably six foot tall,
medium build.
Q. With
all that junk in that car, how did you figure you were going to wedge him in
there?
A. The
pursuit pack is designed for readily accessible -- you can pull it out. That's what the big handle on top of it's for. You can place it other places.
Q. Where
did the $600 for the shirts come from?
A. Jack
Dudley.
Q. So
you saved that money from January until April.
You squirreled away those one hundred dollar bills and were saving them
just to buy T-shirts?
A. Yeah.
Q. All
right. Where did the four hundred in
the notebook come from, the four hundred that was delivered to the People's
Bank on March the 11th?
A. From
the People's Bank.
Q. But
what's the source of it?
A. The
-- what, do you want a breakdown of the --
Q. Where
did you get the one hundred dollar bills that were in the ledger in your
briefcase that were delivered to the People's Bank on March the 11th?
A. Well
--
Q. Was
it so common for you to carry hundred dollar bills that you can't remember
where you got the hundred dollar --
A. I
know where I got it from if you want me to answer.
Q. What's
the source?
A. The
source. The source is possibly two or
three traveler's checks and one from the gym or a personal check where somebody
bought a $100 three-month membership.
Q. Where
are the traveler's checks?
A. You'll
have to ask the People's Bank. We don't
have any more.
Q. Now,
let's talk about the raincoat. The
raincoat is the raincoat that we've seen?
A. Uh-huh.
Q. That
Donald Stone said looks like your raincoat?
A. That's
-- that's my raincoat.
Q. That's
your raincoat?
A. Yes,
I'll --
Q. So
which do you want the jury to believe here?
That you got the blood on it from shooting a horse or that you got it
from Ms. Cronic?
A. Well
--
Q. Because
I need to know which one you want the jury to believe so I can ask you one or
the other.
A. Well,
why don't you back up about five years and pick a call from where I was wearing
it for the last five years. I have no
idea where blood from the raincoat came from or any other stain --
Q. Well,
you heard the testimony -- you've heard the testimony about blood -- about high
velocity blood spatter, didn't you?
A. Uh-huh.
Q. And
that the source of it is a high velocity impact most characteristic of a
gunshot wound. In the last five years
have you been within 18 inches of somebody else other than Emogene Thompson
who's been shot?
A. Wearing
a raincoat?
Q. Wearing
your raincoat, yeah, because that would've gotten the blood on it.
A. I
have not, no.
Q. So
how did the human blood get on it?
A. Well
--
Q. Now
-- you don't know?
A. I
can give you my opinion.
Q. All
right.
A. I
would say that it would -- one of several places. Working frequent car wrecks like we do, wearing it around people
that are injured, wearing it on animal destruction calls. Just wearing it in general.
Q. Where
would the human blood come from?
A. From
humans.
Q. Yeah.
A. From
humans.
Q. Because
you heard the testimony that the high velocity blood spatter only comes from a
high impact. So let's take Ms. Cronic,
for example. You weren't in the car
with her when she hit her head on the windshield, were you?
A. No,
of course not.
Q. So
you didn't -- you couldn't have gotten high velocity blood spatter from there?
A. No.
Q. And
when you go to a wreck call and there's an injured person there --
A. Uh-huh.
Q. --
and you pick them up, you don't immediately throw them on the ground and make
them splash high velocity blood spatter on you, do you?
A. No.
Q. And
when you deliver a baby and there's blood there, I mean the baby doesn't fire
out at such a velocity that it gets high velocity blood spatter on you, does
it?
A. Not
that I've ever seen.
Q. So
in other words, you have no explanation for high velocity blood spatter on your
rain jacket other than the explanation that's been provided by the state?
A. Other
than the contamination that took place at the crime lab earlier this year.
Q. Well,
that's very convenient.
A. Or
--
Q. Contamination
of what? There's been no evidence of
contamination.
A. Of
course, if you want -- another version would be at a car scene where you're
taking off the cables from a car and the engine's running, any kind of
splatter, transmission fluid, oil, blood, anything, hair, teeth, eyeballs could
blow up from the fan.
Q. Has
that ever happened to you?
A. It
probably has.
Q. But
you don't recall a specific incident?
A. I
don't recall the actual thing. I have
no idea what you're talking about with this so-called blood on there.
Q. You
mean you don't have any idea what you're talking about with a blood spatter
from a right-handed shooter that is interspersed with blood of human
origin? You don't have a clue?
A. I
don't have the foggiest.
Q. And
you have no explanation of how it got on your jacket?
A. I'm
not buying your theory, no.
Q. Well,
I'm not asking you to buy it.
A. That's
true.
Q. Let
me ask you about the car seat.
A. Okay.
Q. You
heard, despite all these stories about putting your window through a -- your
hand through a window of a car --
A. Uh-huh.
Q. --
and all that heroic stuff, you have been excluded as the source of the blood on
this arm rest, haven't you?
A. According
to your test, yes.
Q. According
to your own test. Your own expert, Dr.
Choi, said you could not have contributed that blood, didn't he?
A. Okay.
Q. So
all these stories about putting your hand through the windshield of the car,
that's all very exciting, but that didn't put the blood here, did it?
A. If
that was not my blood, yes, I guess it didn't.
Q. So
how did Emogene Thompson's blood get in there?
A. I
have no idea that it is Emogene Thompson's blood, but --
Q. But
it is Emogene Thompson's blood.
A. According
to your -- your test.
Q. Do
you have a sensible, do you have a plausible, do you have a reasonable
explanation for how Emogene Thompson's blood got on your patrol car other than
the explanation offered by the state?
A. A
plausible one?
Q. A
plausible one.
A. Seeing
how it sat unsecured for six days, anything could have happened --
Q. But
there's been no evidence of that.
A. --
if you want to believe it's her blood.
Q. But
there's been no evidence of that.
A. That
it hadn't sat -- that it sat unsecured?
Q. There's
been no evidence anything else happened.
That's your theory. There's been
no evidence that anything happened. The
evidence is Steve Cline locked the car, and Nancy Jenkins went out and it was
locked, and it was unlocked with your keys.
So do you have any plausible, reasonable explanation to give this jury
of why Emogene Thompson's blood was in your patrol car other than the fact that
it transferred from the purse that you took out of her car after you shot her?
A. I
have no plausible reason why Emogene Thompson's blood would be in my car, if it
was, in fact, her blood.
MR. PORTER: I don't have any other questions.
THE COURT: Redirect?
MS. ROGAN: Just briefly, Your Honor.
REDIRECT
EXAMINATION
BY MS. ROGAN:
Q. Mike,
I want to direct your attention to the MDT communication about the Testron that
Mr. Porter was asking you about. Have
you ever stated that 184 bottles of Testron were gone already?
A. No,
I haven't.
Q. Was
that a conclusion that Lieutenant Powell drew from his analysis of the MDT
traffic that night?
A. The
data we were working off of, he transcribed, so he must have. That large stack.
Q. Thank
you.
A. You've
got to find it now.
Q. Let
me show you a page out of Defendant's Exhibit 148, which has been previously
admitted, and direct your attention to the entry for 1734.
A. 1734?
Q. That's
correct.
A. I
don't have a 1734.
MS. ROGAN: Your Honor, may I approach?
THE COURT: Yes.
MR. PORTER: 1743, Ms. Rogan.
MS. ROGAN: Well, 1734 should be here, too.
[Off the record; pause in
proceedings.]
BY MS. ROGAN:
Q. Mike,
I'm going to show you what's been marked for identification Defendant's Exhibit
173, which is a page from the daily summary report that was compiled by
Lieutenant Powell and was previously admitted into evidence as Defendant's
Exhibit 151, and direct your attention to 1734.
A. 1734. I got you.
Q. What
does that entry say?
A. There's
two entries. 1734, there's two messages
sent, one sent to Sergeant Stone, one sent to Brian Reddy, and it says -- it's
from me, and it says, 'Testron has arrived.'
Q. And
how many communications are there between the communication at 1734 and the
communication at 1758?
A. There
are four.
Q. What
does that latter communication say?
A. The
last communication to Sergeant Stone says, '184 gone already.'
Q. And
is that from you?
A. That's
from my -- yes, that's from me.
Q. Okay. And what does that refer to?
A. Testron.
Q. What
does the 184 mean?
A. It
means nothing actually. It was a -- it
was either a mistake on Lieutenant Powell's translation or a double tap on my
set because it's supposed to -- it should read eighteen, I imagine, or even eighty-four. I don't recall.
Q. What
would you have been saying?
A. Eighteen
bottles. Just like Mr. Porter said that
Testron comes in cases of eighteen, and it was already prepaid. People had bought it already, and I had --
basically, it was all gone. And like
you jump back up here to a message from Sergeant Stone, 'Should be a run on
it. How much came in?' That's what led up to this eighteen or 184. So either it was a translation misprint or
it was a double tap on, like he said, a keyboard on my own behalf.
Q. How
many shipments of Testron have you gotten altogether?
A. Going
by their -- their -- I don't -- I don't recall. There was four or five.
He's got what, three or four here, eighteen bottles apiece, but you
don't -- they send six bottles extra on average.
Q. And
on April 15, had you just received another shipment of eighteen bottles?
A. Either
on the 14th or on the 15th. I don't
recall which -- the exact date the shipment came in.
Q. All
right. And your log sheet for that day at
the gym or your sign-in sheet --
A. Yes.
Q. --
indicates that you're letting people know that Testron is here.
A. Yes,
on the 15th, that it's here and it's going quick. It's gone.
Q. Your
friend and colleague at the gym, Van Parker --
A. Uh-huh.
Q. --
Mr. Porter questioned you about why it was -- whether he was mistaken as to
whether you had been present that night or not.
A. Uh-huh.
Q. Did
Mr. Parker say you hadn't been there that night?
A. No,
he didn't.
Q. What
did Mr. Parker say?
A. He
said my -- I believe he said my routine was to come in during the shift and --
Q. Did
he remember whether or not you'd been there that night?
A. I
don't recall him saying that I had.
It's just that it's such a routine for me to come by that he -- he's
forgotten that particular date because, contrary to what Mr. Burnette said at
the interview, they in fact did not check with him right after my arrest, which
probably would've helped him remember.
Q. So
was it your impression that he was saying to this jury that you were affirmatively
not there that night?
A. No.
MR. PORTER: Your Honor, I'm going to object to
that. Mr. Chapel is not allowed to
comment on the quality of another witness's testimony.
THE COURT: The objection is sustained. What's your question?
BY MS. ROGAN:
Q. Blan
Wright, another person who you had identified to the two detectives who were
interrogating you that night as someone who might provide some information as
to whether you were at the gym or not.
A. Yes.
Q. And
you made a comment on the tape that Lieutenant Latty would enjoy speaking to
Mr. Wright. Do you remember that?
A. Yes,
I do.
Q. And
you referred to him as a 24?
A. Yes.
Q. What
did you mean when you referred to Blan Wright as a 24?
A. Well,
the police code stands for demented person, but Blan is a unique person, and he
had a habit of when I walked into the gym, like when I walked up to get the
money bag from Van in the office, he met me before I got back to the door and
said that -- he got up in my face and said, 'Hi, how are you doing, Mike,'
which he always did.
Q. Is
he a mentally challenged person?
A. May
be mentally gifted. He's just
different.
Q. And
on the fact that you were depositing proceeds from the gym into the account in
the middle of the month, did people always pay their dues at the beginning of
the month?
A. No. That's -- no.
Q. Were
you collecting money from members throughout the month?
A. Oh,
yes. Even on the day of my arrest when
they took control of my briefcase I had $138 -- $183 or $63 from the day's
receipts I'd just picked up earlier that night from there.
Q. And
that was on April 23?
A. That
was on April 23. That came from Van at
the gym.
Q. And
I believe you told us previously that April was one of the best times of the
year for the gym?
A. One
of the three big months, yes.
Q. Were
a lot of people joining who had not previously been members?
A. Yes,
because we had two specials. We had the
-- we had a tanning bed that we were running, and we had a three-month -- three-month
tan, three-month gym membership. That
was a hundred bucks. And then I had the
-- what did we call that? The
shiftworker's special that we were allowing the shift- -- Buford's got a lot of
industrial work, and we had a lot of shiftworkers coming in and using it
twenty-four hours a day. That was
picking up real big, too.
Q. And
were you also selling the vitamin supplements and the KM tonic during that
time?
A. Oh,
yes. That's correct.
Q. Would
there be any reason why you would have proceeds from the gym only at the
beginning of a month?
A. No,
not at all.
Q. And
finally, on the blood in your patrol car, when was the last time you saw your
car?
A. I
saw -- last saw my car at approximately eleven o'clock on April the 23rd when I
backed it into the CID parking lot at headquarters. I was -- had no inclination that I -- what was about to
happen. In fact, at 11:30 I was
supposed to be at a part-time job, so I had -- I just thought I was going to be
in there for a few minutes, so I didn't even lock my car. I got out, run in, on a pretense to run in,
and I never came back out.
Q. Who
did you give your keys to that night?
A. As
on the video, when I stripped down the gun belt, I had the -- the large metal
thing you've been looking at all this time is called a kubiton [phonetic
spelling]. It's a martial arts defense
weapon. I carried it in my -- my front
belt.
Q. Is
this the item you're speaking of?
A. That's
precisely it.
Q. Defendant's
Exhibit 76?
A. Right. And on that key ring I had a handcuff key, a
whistle and a single ignition-door key for the -- for that and this little
master lock for my locker, and that's the only keys I had on there, and the car
key is not here at this time.
Q. Is
that the implement that you were pulling out of your waist on the video?
A. That's
what you see on the video, that's correct.
And John Latty starts playing with it in the video.
Q. Did
you have any idea what happened to your car or the keys to your car during the
subsequent six days before the luminal tests revealed the presence of blood in
your car?
A. Only
what I've read in the reports and seen here in court.
MS. ROGAN: That's all I have.
THE COURT: Recross?
RECROSS
EXAMINATION
BY MR. PORTER:
Q. Mr.
Chapel, do you have an actual copy of the MDT traffic there or is that
Lieutenant Powell's summary?
A. This
is Lieutenant Powell's.
Q. Let
me show you copies of the actual MDT traffic.
It comes from copies that have been made. And the statement regarding the Testron, read it as it's
punctuated. It's 17:43 at the top of
the page.
A. Okay. 17 -- oh, okay.
Q. It's
circled here for your information.
A. All
right. Thank you very much. As punctuated, it says, first two digits,
one, eight --
Q. No,
no. No, no. It says --
A. I'm
reading it, Mr. Porter.
Q. Read
it.
A. It
says: one, eight, then a hyphen, four
gone already.
Q. So
it says -- no, the words before it are -- it says, 'Could be a run on it. How much came in?' is the traffic from
Stone. Right?
A. What
time was that?
Q. This
traffic. [Indicating]
A. Okay.
Q. 'Could
be a run on it. How much came in?'
A. Okay.
Q. Pause. Your response: Eighteen, space, four gone already.
A. All
right.
Q. And
the point being, Mr. Chapel, not Testron, but the point is that you allowed
that misconception to go before this jury uncorrected, and you were prepared to
allow this jury to believe that you had sold 184 because you needed to account
for the $7,000.
A. Well,
I believe if you add 184 and $30 it comes out to over $5,000.
Q. If
you multiply it, it comes pretty close to $5,000.
A. I'm
interpreting it the way you are. I'm
sorry.
Q. Where
did Eren get the $3,000?
A. Eren
didn't have $3,000.
Q. That
was Mr. Curtis's statement --
A. Mr.
Cato [sic] saw her day's receipts, I imagine.
That's the explanation I can perceive.
Q. Mr.
Curtis.
A. Well,
whatever his name is.
Q. So
his estimate that it was $3,000 in hundred dollar bills, he's also mistaken?
A. He's
dead wrong. He's not mistaken.
Q. Your
implication of your answers regarding your patrol car and your implication to
me is that somehow you believe you've been framed, that evidence has been
planted. Who in the Gwinnett County
police department would frame you?
A. You
want names?
Q. Would
Jack Burnette do it?
A. He
could be a party to it. He --
Q. Jack
Burnette, your friend, who hunted with you, would be a party to framing you for
this?
A. This
is the same friend that told me in the video that he would check on all the
people that -- who -- who knew where I was at the time. I waited two and a half years later and let
you do it.
Q. This
is also the same friend who arrested you?
A. That's
right.
Q. And
you're saying -- you want this jury to believe that he framed you?
A. I
don't have the proof that he framed me, no.
Q. What
about John Latty. He would frame you?
A. I
could see it happening.
Q. Why?
A. He's
blown enough cases in his career. He
blew this one. He saw it going down the
tubes.
Q. Why
you? Why Mike Chapel?
A. Convenience.
Q. With
his bubblegum bandits?
A. Convenience. Most logical. The mistakes had already been made when he put the cuffs on. Cleaned it up after, six days later.
Q. Officer
Chapel, you've run the scam on suspects before, haven't you?
A. Yes,
I have.
Q. And
you've done it pretty successfully?
A. Most
of that was dopers that are receptable [sic] to it.
Q. And
you've told people lies about recovering evidence and recovering money, and
you've told them that to get them to do things for you; right?
A. There's
a criminal element that'll do that, yeah.
Q. And
of all the people that you've talked about, who would've been the most likely
person in this case to frame for the murder of Emogene Thompson?
A. Me.
Q. No. It would've been Michael Thompson, wouldn't
it? What was your opinion of Michael
Thompson?
A. A
dirtbag doper.
Q. What
was your opinion of Emogene Thompson?
A. Concerned
mother, I guess.
Q. Didn't
you call her a 24, a demented person, on the tape?
A. Yeah.
Q. I
think the word you used was 'a fucking 24'?
A. That
was Burnette's words. I don't recall
saying that.
Q. That
was your words, wasn't it? And the jury
will remember.
A. I
don't recall. I'll have to -- I'll have
to hear it again. I remember reading it
in Burnette's investigative report.
Q. So
if the Gwinnett County police needed a scapegoat, of all the 300 officers, why
you?
A. Because
mistakes had already been made.
Q. But
why you?
A. I
don't know. I'm not going to speculate
right now with the evidence we have.
Q. Because
with the evidence we have, wouldn't you agree, you can't speculate?
A. Oh,
I can speculate.
MR. PORTER: I don't have any other questions.
THE WITNESS: I can't get it admitted.
THE COURT: Anything else?
MS. ROGAN: No.
THE COURT: You can come down, Mr. Chapel.
[The witness stepped down from the
stand.]
THE COURT: Would you approach the bench, please.
[Counsel approached and the
following conference was held outside hearing of the jury.
THE COURT: Where do we stand with rebuttal at this
point, do you think? How long do you think
we're going to be?
MR. PORTER: I have some witnesses here.
THE COURT: No, we're going to quit at this point, but,
I mean, do you think we'll be half a day or a day or --
MR. PORTER: Well, there are some things, based on the
testimony, I'm going to reconsider.
There's a couple of things I was prepared to rebut that I think we've
made our point either through direct or cross.
THE COURT: But you're still planning on your expert --
MR. PORTER: There may be two experts.
THE COURT: Okay.
So we're looking at a half a day or so, it sounds like, and maybe some
surrebuttal. Okay. What I think we'll plan on doing, then, is
just cranking back up at 9:00 o'clock Monday morning, and have your folks ready
then. If you've got any surrebuttal
contemplated, you might have them ready to go.
Everybody's got an idea.
MR. PORTER: Your Honor, I'll disclose it. It's DNA rebuttal.
THE COURT: So, I mean -- if we finish up at noon, I
don't want to take a half a day off and come back Tuesday in surrebuttal. I think everybody knows pretty much what's
coming, so I would suggest, you know, you've got -- if you're contemplating
surrebuttal, have them ready to crank up Monday afternoon. I don't have a problem with taking some time
to get somebody in or whatever to work it, but I don't want to take a half a
day off and then come back with another hour's worth on Tuesday or whatever.
MS. ROGAN: All right.
THE COURT: All right.
So if we do that, then we ought to have -- it sounds like we ought to
have the evidence in Monday, and maybe if we finish it up at a decent time, we
can do a charge conference and get our verdict form out of the way maybe
Monday. What I'd like to do if we can
do that is get all that ready and then to argument and charge first thing out
Tuesday morning.
MR. PORTER: I think that's pretty realistic.
THE COURT: All right.
Well, that's what I'm aiming for, and we'll just see how everything
falls into place, and go from there, then.
Okay. All right. thank you.
[Bench conference concluded.]
THE COURT: We're going to recess at this point. Well, let me ask -- would you approach the
bench, please.
[Counsel approached, and the
following conference was held outside hearing of the jury.]
THE COURT: I'm sorry.
One thing I was going to ask.
Are you resting at this point?
MR. MOORE: Subject to tendering our exhibits and
everything. If we could, we'd like to
do that Monday. Everybody's tired and
everything.
THE COURT: Okay.
Well, do you want to announce resting subject to -- so we'll know where
we are -- as soon as we've tendered the documents, and then we'll do that in
front of the jury or out of their presence, however you want to do it.
MR. MOORE: Out of the presence of the jury like we did
with the state, I mean, if you want to Monday.
THE COURT: I'll give you the choice. I don't care. All right. You can make
your announcement then, and then everybody will know where we stand, then. Okay.
Thank you.
[Bench conference concluded.]
THE COURT: Mr. Moore, do you wish to offer any other
evidence on behalf of the defendant?
MR. MOORE: No, Your Honor. The defense would rest at this time subject to tendering our
exhibits into evidence that have been identified and are pending a ruling by
the Court.
THE COURT: All right.
We'll reserve the issue of the exhibits, and we'll come back to that
next Monday.
With that, we're going to recess
for the day and for the week, and I would again remind you you've heard a good
portion of the case presented, but you've not heard all of it. It would appear -- I'll let you know where
we are in the case.
It would appear that we'll have
rebuttal and perhaps surrebuttal coming in Monday. It would appear the evidence will be finished up altogether
Monday, and the probability of commencing argument and charge Tuesday, and
that's all subject to seeing how everything goes and how long everything
takes. But tentatively, that's where it
looks like we're going to be.
I remind you again that you've
heard a good portion of the case presented, but not all of it. I remind you and I emphasize that you ought
to continue to keep an open mind. I
remind you and I emphasize that there ought not to be any discussions amongst
yourselves, there ought not to be any deliberations or allow anybody else to
discuss the case with you or in your presence, you ought to continue to wait,
look and listen with an open mind until such time as you have seen and heard
all the rest of the case presented and you're in the jury room with your fellow
jurors and commence your deliberations and commence making up your mind and not
until that time.
I'll ask you to leave your pens,
pads, notes in your seats, and they'll be waiting on you Monday. I also remind you that you'll be talking to
spouses tonight, be seeing spouses or significant others tomorrow at lunch, if
you wish, and I remind you and emphasize that there ought not to be any
discussion with any of those persons about -- any discussions about the
case. There ought not to be any --
nobody should read or discuss or hear or see any newspaper articles, TV reports
of the case, and there ought not to be specifically any discussions with
anybody else who may come to see you tomorrow.
And with that, I'll just say I hope
you have an enjoyable day off tomorrow, and we'll see you Monday morning when
we recommence at 9:00 o'clock. If
you'll go with the bailiffs, please.
[The jury was excused for the day
at 6:00 p.m.]
THE COURT: Anything else at this point, Mr. Porter?
MR. PORTER: No, Your Honor, nothing from the state?
THE COURT: Mr. Moore?
MR. MOORE: Nothing from the defense, Your Honor.
THE COURT: We'll be in recess until 9:00 o'clock Monday
morning.
[The proceedings were concluded for
the day, September 2, 1996, at 6:00 p.m.]
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Reporter's Certificate this page
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